NC Court of Appeals Holds that Public Employers Must Follow Their Written Employment Policies


North Carolina Court of Appeals recently ruled that a police officer has a valid property and liberty interest in requiring his employer to comply with its own written promotional process.

Corporal Kevin Tully worked for the Wilmington Police Department. In 2011 he took a written test for promotion and felt confident that he had answered most of the questions correctly. After the fact he realized that many of the answers on the answer key were wrong and he appealed the denial of his promotion. He utilized the internal grievance procedure. The directive in the policy manual stated that candidates may appeal any portion of the selection process through the internal grievance procedure.

After Corporal Tully grieved his denial of promotion due to incorrect test answers, the Wilmington City Manager informed him that his grievance was denied as to the promotion because “test answers” were not grievable. The Grievance Review Board upheld the denial of the grievance.

Corporal Tully ultimately filed a lawsuit arguing that the North Carolina Constitution as well as the city’s own policy directives guaranteed his right to an equal employment opportunity. Further, he alleged that his due process rights under the North Carolina Equal Protection Clause and the “fruits of his own labor” clause were denied. The trial court denied the lawsuit and dismissed it in favor of the city.

However, the North Carolina Court of Appeals reversed the trial court and held that Corporal Tully had alleged a valid property and liberty interest in requiring the city to comply with its own promotional process. This holding appearance to be a decision of first impression in North Carolina.

Because there was a dissenting opinion, it is likely that Wilmington will appeal the decision to the North Carolina Supreme Court, so stay tuned. Otherwise, at this time this decision is a cautionary tale for government employers, especially counties and municipalities, who have a written employment policy and then do not follow their own policy.

For help with employment law questions or other civil litigation issues, call Tracy Stroud, Attorney with Colombo Kitchin Attorneys in Greenville, NC, at 252-321-2020.