Opinion

Brewster v. North Carolina Department of the Secretary of State

Court
District Court, E.D. North Carolina
Filed
Aug 29, 2019
Cited by
0 cases
Authority
More cited than 24.6%

“A career state employee must assert a Whistleblower grievance by filing a contested case in the OAH... .”

How later courts described this case

  • “A career state employee must assert a Whistleblower grievance by filing a contested case in the OAH... .”

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. 5:18-CV-436-BO

DIERDRA A. BREWSTER, )

Plaintiff,

) ORDER

THE NORTH CAROLINA DEPARTMENT

OF THE SECRETARY OF STATE, )

Defendant.

This cause comes before the Court on plaintiffs pro se motion for whistleblower

protection. [DE 46]. The motion is ripe for disposition. For the reasons that follow, plaintiffs

motion for whistleblower protection [DE 46] is denied.

BACKGROUND

Plaintiff, proceeding pro se, initiated this action in September 2018. Plaintiff alleges that

defendant, her former employer, discriminated against her on the basis of her age and religion and

retaliated against her for filing an Equal Employment Opportunity Commission (EEOC)

complaint.

In July 2019, plaintiff filed a document entitled a “Memorandum to Court Concerning

Calculations of Expenses and Damages Entitled to Plaintiff Pro Se and Support Documents

Thereof and to Notify of Additional Loss of Income Livelihood and Motion for Whistle Blower

Protection,” which the Court construes as a motion for whistleblower protection.

DISCUSSION

The Court construes plaintiff's pro se filing as a motion for whistleblower protection. To

the extent that plaintiff instead attempts to add new claims or allegations to her complaint, her

motion is denied, as she has not obtained defendant’s permission or leave from the Court pursuant

to Rule 15 of the Federal Rules of Civil Procedure and the deadline for amending or supplementing

was nearly eight months ago.

North Carolina provides two avenues to whistleblower protection: the Whistleblower Act,

N.C. Gen. Stat. §§ 126-84, et seq., and the Retaliatory Discharge Act (REDA), N.C. Gen. Stat. $§

95-240, et seq. Plaintiff cites only the REDA in her motion, but the Court finds that plaintiffis not

entitled to protection under either statute.

First, to the extent that plaintiff relies on REDA for whistleblower protection, her motion

is denied. REDA prohibits employers from discriminating against employees who, in good faith,

file or threaten to file claims or complaints with respect to various laws, such as the North Carolina

Workers’ Compensation Act or the North Carolina Wage and Hour Act. The only “protection”

that REDA provides is the right to file a civil action seeking damages for retaliatory employment

discrimination. An employee must file a written complaint with the Commissioner of Labor within

180 days of the alleged violation and then, upon receiving a right-to-sue letter, can initiative a civil

action within 90 days. N.C. Gen. Stat. §§ 95-242(a); 95-243. Plaintiff has not demonstrated that

she filed any claim with the Commissioner of Labor, that she received a right-to-sue letter, or that

the conduct that she complains of would even be actionable under REDA.

Second, to the extent that plaintiff relies on the Whistleblower Act, her motion is denied.

The Whistleblower Act exists to “encourage State employees to report improper governmental

activities and to protect them from retaliation for doing so.” Brown v. Dep’t of Pub. Safety, 808

S.E.2d 322, 324 (N.C. Ct. App. 2017). It imposes upon state employees a duty to report “evidence

of activity by a state agency or state employee consisting of a violation of State or federal Jaw, rule

or regulation, fraud, misappropriation, substantial and specific danger to the public health and

safety, and gross mismanagement, a gross waste of monies or gross abuse of authority.” N.C. Gen.

Stat. § 126-84(a). As with REDA, the “protection” offered by the Whistleblower Act is the right

to file a civil action for damages. N.C. Gen. Stat. § 126-87. But to bring such an action, an

employee must first file an administrative claim before the Office of Administrative Hearings.

Brown, 808 S.E.2d at 324 (“A career state employee must assert a Whistleblower grievance by

filing a contested case in the OAH... .”). Plaintiff does not allege that she has filed such a claim

and, as such, she is not entitled to any “protection” under the Whistleblower Act. Plaintiff's motion

is, therefore, denied.

CONCLUSION

For the above reasons, plaintiffs motion for whistleblower protection [DE 46] is DENIED.

SO ORDERED, thisOf day of August, 2019.

Vets W. BOYLE /

CHIEF UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.