Breach of Contract Cases

Edgar W. Dorman vs. Norton Company & others. No. 04-P-167. Worcester. November 16, 2004. - July 15, 2005. Present: Greenberg, Cowin, & Doerfer, JJ. Employment, Discrimination, Termination. Anti-Discrimination Law, Employment, Age, Termination of employment. Unlawful Interference. Contract, Interference with contractual relations. Public Policy. In a civil action alleging age discrimination in employment, in violation of G. L. c. 15 IB, § 4(1B), the judge properly granted summary judgment in favor of the defendant employer, where the plaintiff employee failed to offer admissible evidence either that at least one reason given by the employer for the plaintiff’s discharge was false, or that other facts demonstrated the existence of a discriminatory motive in the making of the discharge decision [6-10]; likewise, the absence of evidence of a discriminatory purpose on the part of individual defendants defeated the plaintiff’s claim for intentional interference with contract [10], and there was no evidence that the plaintiff’s discharge violated public policy [10-11], Civil action commenced in the Superior Court Department on September 7, 2000. The case was heard by Kenneth J. Fishman, J., on a motion for summary judgment. James R. Tewhey for the plaintiff. Renee E. Hackett for the defendants. Robert Clark and Alan Gustafson. Cowin, J. The plaintiff, Edgar W. Dorman, appeals from a judgment of dismissal of his complaint of age discrimination in employment, see G. L. c. 151B, § 4(1B), intentional interference with contractual relations, and employment termination in violation of public policy following the entry of summary judgment in favor of the defendants on each count. In a comprehensive opinion, a judge of the Superior Court applied the three-stage order of proof established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and adopted by the Supreme Judicial Court with respect to proceedings under G. L. c. 151B, see Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 134-136 (1976). Pursuant thereto, the judge assumed that the plaintiff had satisfied the first-stage obligation to present evidence sufficient to make out a prima facie case of discrimination; determined that the defendant employer, Norton Company (Norton or employer), had satisfied its second-stage burden of production by articulating and supporting a legitimate, nondiscriminatory reason for terminating the plaintiffs employment; and ultimately ruled, with respect to the third stage, that the plaintiff had not offered admissible evidence sufficient to" warrant a finding that at least one of the employer’s proffered reasons was untrue or that, on other grounds, the termination was motivated by a discriminatory intent. See Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 446 (1995); Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 118 (2000); Lipchitz v. Raytheon Co., 434 Mass. 493, 501 (2001). The defendants prevailed on their motion for summary judgment with respect to the remaining counts as well. With regard to the plaintiff’s claim against the individual defendants for intentional interference with contractual relations, the judge determined that the plaintiff’s failure to demonstrate a discriminatory motive on the part of the employer or its agents precluded the possibility that the plaintiff could show the element of “improper motive or means” required to prevail in an intentional interference case. See Weber v. Community Teamwork, Inc., 434 Mass. 761, 781 (2001). Likewise, the judge ruled that the plaintiff’s contention that termination of his employment was motivated by his earlier report of employee theft of copper scrap, even if correct, did not rise to the level of a public policy concern that would limit the employer’s rights with respect to what was otherwise at-will employment. See Mello v. Stop & Shop Cos., 402 Mass. 555, 560-561 (1988). On appeal, the plaintiff argues in essence that he presented, in the summary judgment record, admissible evidence sufficient to support a finding that at least one of the employer’s proffered reasons was false, thereby making permissible (though not obligatory) an inference by the fact finder that the employer’s real motivation for the termination was discriminatory. See Lipchitz v. Raytheon Co., supra. It follows, the argument continues, that a fact finder would be warranted in finding that the employer’s agents (defendants Clark and Gustafson) acted with improper motive or by improper means when they brought about termination of the plaintiff’s employment. See Weber v. Community Teamwork, Inc., supra. Finally, the plaintiff contends, with respect to his violation of public policy claim, that his discharge violated a protectable social interest in the reporting of criminal activity. We conclude that the judge’s legal and factual analysis of each claim was sound, and we accordingly affirm. The underlying facts. The facts that appear from the summary judgment record to be genuinely undisputed are as follows. At the recommendation of the defendant Robert Clark, Norton’s chief engineer at its Worcester plant, the plaintiff was hired by Norton as a watch engineer in 1993. At that time, the plaintiff was fifty-two years old and Clark was forty-nine. As watch engineer, the plaintiff supervised a shift of employees and monitored the operation of plant equipment, including a turbine. The first event of any significance to the case took place in March, 1995, when the plaintiff and three other watch engineers wrote to Norton to complain that the watch engineers were not receiving a competitive salary. The letter generated a decision on the part of management to conduct a wage study, as a result of which the watch engineers’ hourly wages were increased. The plaintiff’s annual evaluations in June, 1996, and June, 1997, were largely positive. In 1996, he received eighty-seven points out of a possible 100, and Clark wrote that the plaintiff “had considerable experience” and was “a pleasure to work with.” In 1997, the plaintiff received eighty-nine points out of a possible 100, and Clark, acknowledging the plaintiff’s “varied experience and very good job skills,” stated that he “works well with others.” In mid-1997, the copper scrap incident took place. Prior thereto, Norton had permitted its employees to collect and sell scrap copper which accumulated at the company’s site. The practice generated complaints, and Clark informed the employees that the sales could not continue. Notwithstanding this directive, certain employees carried on the sales, and the plaintiff reported the matter to Clark. Clark investigated, learning that three employees (including his cousin) had continued the practice. He orally reprimanded the employees, and directed that the amount improperly collected (about $4,000) be donated to charity. No other action against them was taken as a result of the violation. In October, 1997, the plaintiff had an encounter with William Black, an employee assigned to the shift that the plaintiff supervised in his capacity as a watch engineer. Black apparently had concluded that the plaintiff was in some way responsible for vandalism to Black’s vehicle; Black threatened the plaintiff; and the plaintiff responded with profanity. After an investigation, it was determined that Black would receive a written warning for the threat, while the plaintiff would be given an oral warning for his profanity directed at a fellow employee. Although at the time of the incident there was consideration of a shift swap that would separate Black and the plaintiff, no swap was arranged and the relationship between the two men continued to deteriorate. Feeling threatened by Black, the plaintiff, in November, 1997, installed a motion detector outside of his office to warn him of anyone approaching. Clark caused the motion detector to be removed and, after consultation with Norton’s human resources manager and the defendant, Alan Gustafson, Norton’s director of facilities services, Clark issued a written warning to the plaintiff stating, “Unsatisfactory job performance by failing to maintain an effective work team and work environment. Disruption of the work environment and violations of safety rules. Unauthorized installation of motion detector.” The written warning also advised the plaintiff that any further disciplinary action would be cause for discharge. Later in November, 1997, a security officer reported that the plaintiff had been sleeping at his desk. While Clark told the plaintiff that such behavior would not be tolerated, no warning was issued and the incident was not referred to in the plaintiff’s evaluation (June, 1998). However, the plaintiff’s rating in that evaluation slipped considerably from what it had been in the preceding two years. In the section for “specific improvement needs,” Clark wrote, “Needs to improve his communication and cooperation with coworkers and supervision. Needs to continue to develop and [sic] effective work team and work environment.” On June 23, 1998, Thomas Donahue, a Norton engineer, reported both to Clark and to Norton’s safety office that the plaintiff appeared to be sleeping in his office while a turbine alarm was sounding. While the plaintiff denied that he was sleeping at the time, he admitted at his deposition that he heard the alarm sound and intentionally let it ring for an additional five or ten minutes (apparently to demonstrate to management the validity of his and others’ continuing insistence that the alarm was too loud). On the basis of the more recent sleeping incident, the prior written warning, the performance review of June, 1998, and a “failure to perform his duties,” Clark ordered the plaintiffs employment terminated effective June 29, 1998. At that time, both of the individual defendants and all of the on-site employees, with a single exception, were within the protected class, i.e., over forty years of age. See G. L. c. 151B, § 1(8); Knight v. Avon Prods., Inc., 438 Mass. 413, 420-421 (2003). Discussion. As indicated above, the judge assumed that the plaintiff had satisfied his burden on summary judgment to present evidence that would, if believed, establish a prima facie case. The defendants challenge this, asserting that the plaintiff did not demonstrate that he was performing his job in an acceptable manner. See Abramian v. President & Fellows of Harvard College, 432 Mass. at 116. Because the defendants prevail on other grounds, we need not decide the issue. We note, however, that “the plaintiff’s initial burden of establishing a prima facie case is not intended to be onerous.” Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 45 (2005), citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Whether the plaintiff performed at a satisfactory level was disputed, and the plaintiff offered at least some evidence that his performance was adequate. The judge’s assumption regarding the plaintiff’s satisfaction of his burden in the first stage was not unreasonable. That the defendants met their burden of producing and supporting nondiscriminatory reasons for discharging the plaintiff, see Sullivan v. Liberty Mut. Ins. Co., supra at 50, is not disputed. The outcome of the case turns, therefore, on the answer to the question whether the plaintiff has offered admissible evidence sufficient to avoid summary judgment that shows either that at least one reason given by the employer for the discharge was false, see Lipchitz v. Raytheon Co., 434 Mass. at 501, or that other facts demonstrate the existence of a discriminatory motive in the making of the discharge decision, see Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. at 446. The plaintiff did not attempt to develop so-called direct evidence of discrimination, such as suspect statements by management on the subject of age or statistical studies showing that protected class members were often treated differently from younger employees. Indeed, such demonstrations were unlikely given that virtually all of the employees at the operation of which the plaintiff was a part were over forty years of age, and that the plaintiff was first hired, then discharged, by a supervisor (Clark) who was himself the plaintiff’s junior by a mere three years. Thus, the plaintiff instead attempted to make his third-stage case by offering evidence of alleged different treatment between himself and other employees who were younger. This, he argues, would support a finding that one or more reasons for the plaintiff’s discharge were a pretext, therefore permitting a fact finder to draw the inference that the employer’s true purpose was discriminatory. See Lipchitz v. Raytheon Co., supra. The principle, i.e., that evidence that similarly situated employees were treated differently can establish that a proffered reason for an adverse job action was a pretext, is sound. See Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 129 (1997). The problem for the plaintiff is that the evidence does not demonstrate that the defendants treated similarly situated employees differently, or otherwise singled out the plaintiff (or a class of which he was a member) for special, negative treatment. This being the case, the inference on which the plaintiff depends cannot reasonably be drawn. Examining the plaintiff’s factual assertions in chronological order, there is no evidence of a connection between the plaintiff’s participation in March, 1995, in the watch engineers’ effort to obtain a wage increase and his employment termination in June, 1998. The effort was ultimately successful; the plaintiff’s role generated no negative oral or written responses; there was no evidence that adverse action was taken against any of the other watch engineers; the plaintiff’s evaluations in 1996 and 1997 were favorable; and the passage of time between the wage request and the discharge (more than three years) strongly suggests that the events were unrelated. With respect to the plaintiff’s report in mid-1997 regarding the continued sale of copper scrap, in violation of Norton’s new policy, the defendants were entitled to evaluate the significance of the violation and to select a response they considered appropriate in the circumstances. See Smith College v. Massachusetts Commn. Against Discrimination, 376 Mass. 221, 229 (1978). Here, management concluded that an oral reprimand and contribution of the sale proceeds to charity were sufficient. There is no basis for assuming that these employees were treated any differently with respect to the level of discipline imposed than any other employees in the same situation would have been treated. Clearly there was no different treatment with respect to the plaintiff, given that he was not a violator and was not disciplined. Turning to the plaintiff’s episode with his subordinate, William Black, and its aftermath, the plaintiff again complains of a difference in treatment. We are unable to identify an inequitable difference. Management disciplined Black more severely for the threat (a written warning) than it disciplined the plaintiff for the use of profanity to a subordinate (an oral warning). That management did not accommodate the plaintiff’s request for a shift change, arguably difficult given that the plaintiff had supervisory functions, was not shown to be a product of anything other than an exercise of management’s right to deploy personnel in a manner it deems best for its own business purposes. Likewise, management’s response to the plaintiff’s unauthorized installation of the motion detector, including the written warning advising that further disciplinary action would be cause for discharge, has not been shown to be unreasonable per se or otherwise inconsistent with Norton’s disciplinary practices. The slippage in the plaintiff’s performance evaluation in June, 1998, and the emphasis on his need to improve his teamwork and supervisory skills were not arbitrary in light of the incident with Black and the motion detector installation. Given the events of the preceding eight months, particularly the written warning that further discipline could lead to discharge, the defendants’ termination of the plaintiff’s employment following the second report that he had been observed sleeping on the job was, at least facially, well within the scope of permissible action by an at-will employer, and the plaintiff has offered no evidence that would suggest that the treatment was either inequitable or unduly harsh in light of the employer’s normal practices. The plaintiff contests the truth of the engineer Donahue’s report of the plaintiff sleeping on the job that constituted the last link in a chain of events leading to his termination. He denies that he was sleeping (either then or on a prior occasion when a similar report was made) and argues with the accuracy of Clark’s effort to verify the report of a reading of the pressure gouge. It is unnecessary to resolve these questions. The plaintiff admitted that he intentionally delayed silencing the turbine alarm, an act of questionable judgment from an operational viewpoint that would by itself have been of legitimate concern to management. Furthermore, the plaintiff confuses the alleged falsity of Donahue’s accusation that he had been sleeping with the falsity, the plaintiff claims, of the reasons given by the employer for his discharge. It is the latter that is significant under Abramian v. President & Fellow of Harvard College, 432 Mass. at 117, and Lipchitz v. Raytheon Co. 434 Mass. at 501, and there is no evidence here that the defendants discharged the plaintiff on the basis of a report that they knew to be false. To the extent that the plaintiff argues that the above incidents, taken as a whole rather than viewed in isolation, demonstrate a disparity between the leniency with which other employees were treated and the harshness meted out to the plaintiff, the short answer is that the offenses were dissimilar, particularly when examined in the light of the plaintiff’s work history immediately preceding his discharge. In the absence of any evidence of different treatment of the plaintiff by the defendants, the plaintiff’s case that there was pretext, and therefore discriminatory motive, on the defendants’ part collapses completely. There is no direct evidence of discrimination. The only indirect evidence, i.e., that the employer’s proffered reasons for discharge were false in at least one respect, fails because the record contains nothing to support a finding that those reasons were in fact false. The plaintiff cannot avoid summary judgment merely by speculating that his treatment by the employer came about not because of the merits of his performance as the employer observed it, but rather because of impermissible consideration of his age. The third-stage burden of proof requires more than that. Accordingly, there being a failure of proof that age was in any way a motivating factor, summary judgment for the defendants on this count was correctly entered. We briefly address the plaintiff’s remaining claims. An action for intentional interference with contract requires that the plaintiff prove the existence of a contract; the intentional interference with the contract by one or more third parties; that such interference was improper in motive or means; and resulting harm to the plaintiff. See Weber v. Community Teamwork, Inc., 434 Mass. at 781. His case on the third element (improper motive or means) is dependent on his allegation of age discrimination. That allegation, if proved, could satisfy the requirement that the interference be motivated by “a spiteful, malignant purpose, unrelated to the legitimate corporate interest.” Id. at 782, quoting from Boothby v. Texon, Inc., 414 Mass. 468, 487 (1993). Here, the absence of evidence of discriminatory purpose on the part of the individual

HUGH KEVIN HINES, Plaintiff v. GARLAND N. YATES, in his Individual and Personal Capacity and in His Official Capacity as the District Attorney for the 19-B Prosecutorial District, State of North Carolina; LITCHARD D. HURLEY, in His Individual and Personal Capacity and in His Official Capacity as the Sheriff of Randolph County, North Carolina; WESTERN SURETY COMPANY, a South Dakota Corporation, Defendants No. COA04-775 (Filed 5 July 2005) 1. Appeal and Error— appealability — preservation of issues— failure to argue — interlocutory order The cross-assignments of error that plaintiff failed to argue in his brief are deemed abandoned under N.C. R. App. P. 28(a) and plaintiffs cross-appeals, except for wrongful discharge, are interlocutory and dismissed under N.C. R. App. P. 10. 2. Appeal and Error— appealability — denial of summary judgment — immunity—substantial right Although an appeal from the denial of a motion for summary judgment is generally an appeal from an interlocutory order, defendants’ appeal is properly before the Court of Appeals because defendants’ answer and arguments assert the affirmative defenses of immunity and qualified immunity which affect a substantial right sufficient to warrant immediate appellate review. 3. Wrongful Interference— malicious interference with contractual relations — summary judgment The trial court erred by denying defendant sheriff’s motion for summary judgment on plaintiff’s claim for malicious interference with contractual relations in defendant’s official and individual capacity, because: (1) plaintiff’s allegations fail to establish the element of “no justification” to support his claims for malicious interference with contract as an investigatorial assistant in the district attorney’s office; (2) plaintiff’s allegations do not show that defendant sheriff did not have an official or personal justification in requesting plaintiff to be reassigned or terminated and that defendant, as a constitutionally elected officer, enjoyed a qualified immunity from tort in communicating with defendant district attorney who was also a constitutionally elected officer; (3) plaintiff offered no evidence to show that the district attorney terminated him because of the sheriff’s request or that he suffered recoverable damages as a result of the sheriff requesting plaintiffs termination; and (4) the district attorney’s affidavit and answers to plaintiffs interrogatories set forth objective and substantial reasons for terminating plaintiff, none of which were based upon the sheriffs request to do so. 4. Constitutional Law— North Carolina — suit against district attorney in individual and personal capacity — summary judgment The trial court erred by concluding that defendant district attorney was not entitled to summary judgment on plaintiffs claim for relief under violations of the North Carolina Constitution in defendant’s individual and personal capacity, because: (1) it is well settled in North Carolina that no direct cause of action for monetary damages exists against officials sued in their individual capacities who have allegedly violated a plaintiff’s constitutional rights; and (2) plaintiff concedes that his complaint does not set forth a cause of action against defendant in his individual and personal capacity for this claim. 5. Public Officers and Employees— wrongful termination— investigatorial assistant in district attorney’s office The trial court did not err by granting summary judgment for defendant district attorney on plaintiff’s wrongful termination claim based on defendant firing plaintiff as an investigatorial assistant after plaintiff’s unsuccessful candidacy for sheriff, because: (1) plaintiff did not show that he was discharged for any reason that contravenes public policy; (2) plaintiff was not restrained by defendant from running for public office, making any speech, or engaging in a protected activity which furthers a public policy; (3) as an at-will and exempt employee under N.C.G.S. § 126-5(cl)(2) based on his employment in the Judicial Department, plaintiff’s public opposition to his superior’s discretionary decisions and his inability to work cooperatively with law enforcement agencies with which the district attorney must communicate and coordinate on a daily basis is a legally sufficient reason for defendant to terminate plaintiff’s employment; (4) plaintiff did not allege that his candidacy for sheriff, speeches, and activities, for which he was allegedly terminated, resulted from his employer’s demand that he conduct some unlawful activity or was in retaliation for cooperating with a law enforcement agency conducting an investigation; (5) plaintiff’s allegations and evidence did not show how his candidacy for sheriff immunized his speech as political expression that is protected by a public policy exception to bar his termination when that speech publicly exuded insubordination and directly criticized his supervisor’s prosecutorial discretion whether to bring criminal charges; (6) plaintiffs public statements criticizing defendant’s discretionary decisions and the disruption of his office’s working relationship with law enforcement agencies were sufficient reasons, standing alone, to terminate plaintiff’s at-will employment; and (7) defendant’s decision to terminate plaintiff rested within his lawful and discretionary scope of authority under N.C.G.S. § 7A-69. 6. Civil Rights— § 1983 claim — failure to show deprivation of constitutionally protected rights The trial court erred by denying summary judgment for defendants on plaintiff’s 42 U.S.C. § 1983 claim, because: (1) plaintiff failed to show any public policy exception which cloaks him from termination of his at-will employment as an investiga-torial assistant who serves at the pleasure of the district attorney as provided by N.C.G.S. § 7A-69; (2) there is no genuine issue of material fact as to whether plaintiff was deprived of any rights, privileges, or immunities secured by the Constitution and laws as a terminated at-will employee of defendant district attorney (DA); (3) plaintiff’s right to say whatever he wanted was not restrained by defendant DA or anyone else; and (4) defendant DA had the right to terminate plaintiff’s employment for any reason, for no reason, or for an arbitrary or irrational reason so long as his actions did not violate a recognized public policy. 7. Damages and Remedies— punitive damages — summary judgment The trial court’s denial of defendants’ motions for summary judgment on the remainder of plaintiff’s claims, including those for punitive damages, that have not been previously dismissed are reversed. Judge Wynn concurring in part and dissenting in part. Appeals by defendants and cross appeals by plaintiff from order entered 26 February 2004 by Judge John O. Craig, III, in Randolph County Superior Court. Heard in the Court of Appeals 2 February 2005. Puryear and Lingle, P.L.L.C., by David B. Puryear, Jr., for plaintiff-appellee/cross-appellant. Attorney General Roy Cooper, by Assistant Attorney General Grady L. Balentine, Jr., for defendant-appellant/cross-appellee Garland N. Yates. Womble Carlyle Sandridge & Rice, A Professional Limited Liability Company, by Allan R. Gitter and Douglas R. Vreeland, for defendants-appellants/cross-appellees Litchard D. Hurley and Western Surety Company. TYSON, Judge. Garland N. Yates (“Yates”), Litchard D. Hurley (“Hurley”), and Western Surety Company (collectively, “defendants”) appeal from an order denying their motions for summary judgment. We affirm in part, reverse in part, and dismiss plaintiff’s complaint. I. Background From 7 January 1999 to 31 December 2002, Hugh Kevin Hines (“plaintiff’) worked as an investigatorial assistant in the district attorney’s office for 19-B Prosecutorial District. Plaintiff’s job duties included locating and interviewing witnesses, serving subpoenas for attendance at trials, and acting as a liaison between the district attorney’s office and law enforcement agencies. Prior to working for Yates, plaintiff worked as a lieutenant for the sheriff of Randolph County. During the 2002 election, plaintiff became a candidate in the republican primary election for sheriff of Randolph County and challenged Hurley, the incumbent sheriff. Over the course of the campaign, plaintiff publicly criticized Yates for his prosecutorial decisions in prior cases and publicly announced his disagreement with Yates’ decision to not criminally charge a sheriff’s deputy who had collided with a motorcyclist during a pursuit. The motorcyclist died from injuries sustained from the collision. Plaintiff also publically expressed his disagreement with the sheriff’s department’s investigation and handling of an unrelated and unsolved murder case. Plaintiff’s affidavit states that: Yates, on numerous occasions personally stated to me that he intended to discharge me from my employment . . . due to my seeking the office of Sheriff of Randolph County . . . after each occasion on which I made a public appearance or there was some news media attention in connection with my election campaign. After plaintiff appeared at a public event to express interest in running for the sheriffs position, plaintiff was instructed by Yates not to work on pending cases involving the Randolph County sheriffs department. In the primary election held 10 September 2002, Hurley defeated plaintiff, secured the republican party’s nomination, and won reelection as sheriff of Randolph County in the November general election. On 16 September 2002, less than one week after the primary election, plaintiffs annual employee performance report was completed. On 26 September 2002, Kay Lovin, Yates’ administrative assistant and plaintiff’s supervisor, informed plaintiff of his impending termination. Yates extended the termination date to 31 October 2002, and again to 31 December 2002, and offered plaintiff the opportunity to resign. Yates also offered to provide a reference to other law enforcement agencies. Plaintiff refused to resign and continued to criticize the sheriff’s department after the election. In his sworn affidavit, Yates stated, “[Plaintiff] continued to criticize the Sheriff and even accused him of voter fraud” and “stated pub-lically that he intended to run against the Sheriff again in 2006.” On 31 December 2002, plaintiff received a separation notice from Yates stating as grounds that “[e]mployee is no longer able to function effectively in his position. To wit: cooperate and maintain an effective and confidential relationship with all law enforcement agencies in the judicial district.” Yates listed as a second reason for plaintiff’s separation as “[e]mployee further directly criticized supervisor’s decision in the media concerning a law enforcement matter.” Plaintiff instituted this action seeking damages from defendants for various torts: (1) wrongful discharge against Yates in both his official and individual capacity; (2) malicious interference with contractual relations against Hurley; (3) violation of plaintiff’s State constitutional rights by Yates and Hurley in their official capacities; (4) violation of plaintiff’s federal constitutional rights under 42 U.S.C. § 1983 against Yates and Hurley in their official and personal individual capacities; and (5) claims for punitive damages for Hurley’s and Yates’ conduct in their official and personal individual capacities. Plaintiff asserted claims against Western Surety Company on Hurley’s official bond. Defendants answered and asserted defenses of sovereign immunity, qualified immunity, and that plaintiff was an “at will employee.” Defendants moved for summary judgment. Hurley’s sworn affidavit, filed with his motion for summary judgment, admits he asked Yates to reassign plaintiff from the sheriffs department’s cases due to “[his] concern that a conflict of interest was arising by plaintiff’s reportedly questioning crime victims as to whether they were satisfied with response times, friendliness, etc. of deputy investigators ... for the time during the election campaign.” Hurley denies requesting Yates to terminate plaintiff. Yates’ sworn affidavit states, “[a]t no time did Sheriff Hurley or anyone on his behalf ask me to fire [plaintiff], I made the decision.” The trial court granted defendants’ motions regarding: (1) “plaintiff’s first claim for relief as against defendant Yates in his official capacity and in his individual and personal capacity” (wrongful discharge); (2) “plaintiff’s third claim for relief as against defendant Hurley in his official capacity and in his individual and personal capacity” (denial of State constitutional rights); (3) “plaintiff’s third claim for relief as against defendant Yates in his official capacity, but not as against defendant Yates in his individual and personal capacity” (denial of State constitutional rights); (4) “plaintiff’s fourth claim for relief as against defendant Yates in his official capacity for all forms of relief except injunctive relief, but not as against defendant Yates in his individual and personal capacity” (denial of federal constitutional rights under color of State law); (5) “plaintiff’s sixth claim for relief as against defendant Yates in his official capacity, but not as against defendant Yates in his individual and personal capacity” (punitive damages); and (6) plaintiff’s sixth claim for relief as against defendant Hurley in his official capacity but not as against defendant Hurley in his individual and personal capacity (punitive damages). The trial court denied defendants’ motions for summary judgment on plaintiff’s: (1) second claim of relief for malicious interference with contractual relations against Hurley; (2) injunctive relief for violation of plaintiff’s State constitutional rights by Yates in his individual and personal capacities; (3) violation of plaintiff’s federal constitutional rights under 42 U.S.C. § 1983 against Yates in his individual and personal capacities limited to injunctive relief; (4) plaintiff’s fifth claim for relief on the sheriff’s bond against Western Surety Company (for wrongful conduct by Hurley in his official capacity as sheriff); and (5) punitive damages against both Hurley and Yates in their individual and personal capacities. Defendants appeal and plaintiff cross appeals. II. Issues The common issues presented by defendants are whether the trial court erred in denying defendants’ summary judgment motions on plaintiffs claims for violation under 42 U.S.C. § 1983 and punitive damages. Defendants Hurley and Western Surety separately assert the trial court erred in denying summary judgment on plaintiffs malicious interference with contractual relations as plaintiff failed to allege a waiver of immunity. Plaintiff assigned cross assignments of error on the granting of defendants’ motions for summary judgment dismissing plaintiffs claims for: (1) wrongful discharge by Yates; (2) punitive damage charge against Hurley in his official capacity; (3) all forms of relief except injunction in regards to his 42 U.S.C. § 1983 action; and (4) punitive damages against Yates and Hurley in their official capacities. Except for the trial court’s granting Yates summary judgment and dismissing plaintiff’s claims for wrongful discharge, plaintiff’s arguments in his brief assert solely alternative grounds to support the trial court’s partial summary judgment in his favor. Plaintiff abandoned his remaining cross assignments of error by not arguing them in his brief. N.C. R. App. P. 28(a) (2004); Summers v. City of Charlotte, 149 N.C. App. 509 n.8, 562 S.E.2d 18 n.8 (2002). Also, plaintiff’s cross appeals, except the wrongful discharge, are interlocutory and are dismissed. N.C. R. App. P. 10 (2004). III. Interlocutory Appeal Defendants’ appeal of an order denying their motions for summary judgment is interlocutory. However, “this Court has repeatedly held that appeals raising issues of governmental or sovereign immunity affect a substantial right sufficient to warrant immediate appellate review.” Price v. Davis, 132 N.C. App. 556, 558-59, 512 S.E.2d 783, 785 (1999) (citations omitted). We recognize the non-prevailing party’s right to immediate review because “ ‘the essence of absolute immunity is its possessor’s entitlement not to have to answer for his conduct in a civil damages action.’ ” Id. (quoting Epps v. Duke University, Inc., 122 N.C. App. 198, 201, 468 S.E.2d 846, 849, disc. rev. denied, 344 N.C. 436, 476 S.E.2d 115 (1996) (citing Herndon v. Barrett, 101 N.C. App. 636, 639, 400 S.E.2d 767, 769 (1991))). Defendants’ answer and arguments assert the affirmative defense of immunity and qualified immunity. This appeal is properly before this Court. Id. IV. Standard of Review . In a motion for summary judgment, the movant has the burden of establishing that there are no genuine issues of material fact. The movant can meet the burden by either: “1) Proving that an essential element of the opposing party’s claim is nonexistent; or 2) Showing through discovery that the opposing party cannot produce evidence sufficient to support an essential element of his claim nor [evidence] sufficient to surmount an affirmative defense to his claim.” Price v. Davis, 132 N.C. App. 556, 559, 512 S.E.2d 783, 786 (1999) (citing Messick v. Catawba County, 110 N.C. App. 707, 712, 431 S.E.2d 489, 492-93, disc. rev. denied, 334 N.C. 621, 435 S.E.2d 336 (1993)). When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. N.C. Gen. Stat. § 1A-1, Rule 56(e) (2003). V. Interference with Contract Hurley asserts the trial court erred in its order denying his motion for summary judgment on plaintiffs claim against him for malicious interference with contractual relations in his official and individual capacity. We agree. The five essential elements a plaintiff must show for a viable claim for malicious interference with contract are: (1) a valid contract existed between plaintiff and a third person, (2) defendant knew of such contract, (3) defendant intentionally induced the third person not to perform his or her contract with plaintiff, (4) defendant had no justification for his or her actions, and (5) plaintiff suffered damage as a result. Wagoner v. Elkin City Schools’ Bd. of Education, 113 N.C. App. 579, 587, 440 S.E.2d 119, 124 (1994) (citing McLaughlin v. Barclays American Corp., 95 N.C. App. 301, 308, 382 S.E.2d 836, 841, cert. denied, 325 N.C. 546, 385 S.E.2d 498 (1989); Uzzell v. Integon Life Ins. Corp., 78 N.C. App. 458, 463, 337 S.E.2d 639, 643 (1985), cert. denied, 317 N.C. 341, 346 S.E.2d 149 (1986)). Plaintiffs complaint alleges “[a]t all times herein alleged, Hurley was the duly elected Sheriff of Randolph County.” Plaintiff’s claim for malicious interference with contractual relations asserts Hurley “acted without any proper purpose related to his duties as Sheriff . . . solely for reasons of ill will and malice ... to intentionally and maliciously cause defendant Yates to terminate plaintiffs employment.” Hurley argues public official immunity and qualified immunity bar this claim. “Governmental immunity protects the governmental entity and its officers or employees sued in their ‘official capacity.’ ” Taylor v. Ashburn, 112 N.C. App. 604, 607, 436 S.E.2d 276, 279 (1993) (quoting Whitaker v. Clark, 109 N.C. App. 379, 382, 427 S.E.2d 142, 144, disc. rev. and cert. denied, 333 N.C. 795, 431 S.E.2d 31 (1993)), cert. denied, 336 N.C. 77, 445 S.E.2d 46 (1994). We have held “absent an allegation to the effect that immunity has been waived, the complaint fails to state a cause of action.” Clark v. Burke C