‘Equal Protection’ Requires Employer To Comply With Own Promotional Rules

Since 2000, Kevin Tully has been employed with the Wilmington, North Carolina Police Department. Tully obtained the rank of Corporal in June 2007. In 2008, Tully was assigned to the Department’s Violent Crimes Section, where he worked on more than 50 homicide cases with a 100 percent clearance rate. He was named Wilmington Police Officer of the Year, and, in 2014, he was awarded the “Public Safety Officer Medal of Valor,” the highest award given to a police officer in the United States.

In 2011, Tully decided to seek promotion to the rank of sergeant, following the policies and procedures established by the Department. The promotional process involves several phases, beginning with a written examination. According to the Department’s policy on promotions, only candidates scoring in the top 50th percentile of those taking the written examination may advance to the next phase of the promotional process.

The top-scoring one-third of candidates who complete all specified phases are then placed on an eligibility list for promotion, which is then provided to the Chief of Police. The Chief of Police reviews a file on each promotion-eligible candidate, which may include materials regarding supervisory evaluation ratings, length of service, educational background, current position, commendations and awards, and disciplinary actions. From the candidates whose files he reviews, the Chief of Police selects officers for promotion. Finally, the Chief’s selections must be approved by the City Manager.

Tully sat for the written examination for promotion to the rank of sergeant and thereafter was notified that he had failed it, thus barring Tully from moving forward in the promotional process. However, Tully discovered that, when he reviewed a copy of the purportedly correct answers for the written examination, several of the “correct” answers were based on outdated law, particularly regarding searches and seizures. When Tully filed an internal grievance challenging the process, the City Manager denied the grievance on the grounds that “promotional examinations are not grievable.” Tully appealed into the court system.

The North Carolina Court of Appeals refused to dismiss Tully’s lawsuit. The Court held that “arbitrary and capricious acts by government are prohibited under the Equal Protection Clause of the North Carolina Constitution. The purpose of the Equal Protection Clause is to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.

“An agency of the government must scrupulously observe rules, regulations, or procedures which it has established. When it fails to do so, its action cannot stand and courts will strike it down.

“We now hold that it is inherently arbitrary for a government entity to establish and promulgate policies and procedures and then not only utterly fail to follow them, but further to claim that an employee subject to those policies and procedures is not entitled to challenge that failure. If a government entity can freely disregard its policies at its discretion, why have a test or a grievance process or any promotional policies at all?

“In reaching this holding, we emphasize that it is not now whether the City did violate its own promotional policies and procedures and whether Tully should prevail in this matter. Instead, the dispositive questions before us are whether Tully has sufficiently alleged claims of arbitrary and capricious action by the City in its failure to follow its own procedures. We conclude that Tully has sufficiently alleged constitutional claims and that genuine issues of material fact remain to be resolved. Accordingly, to permit Tully to engage in discovery and present a forecast of evidence to support his allegations of arbitrary and capricious action in the City’s failure to follow its own policies and procedures regarding promotions, we reverse the trial court’s order dismissing his lawsuit.”

Tully v. City of Wilmington, 2016 WL 4362181 (N.C. App. 2016).