N.C.P.I.—Civil 640.70

NOTE WELL: This instruction should be used when a

public employee shows that no other state law remedy

is available to address the unconstitutional burden on

the employee’s right to the enjoyment of the fruits of

the employee’s labor.1

This (state number) issue reads:

"Was the plaintiff (state name) damaged as a result of the

defendant’s (state name) arbitrary and capricious action?"

The North Carolina Constitution guarantees for citizens of North

Carolina the inalienable right to “the enjoyment of the fruits of their own

labor.”2 This right may not be unconstitutionally burdened by the

arbitrary and capricious action of a governmental employer.3

On this issue, the burden of proof is on the plaintiff. This means

that the plaintiff must prove by the greater weight of the evidence the

following three things:

First, that a clear, established rule or policy existed regarding the

employment promotional process that furthered a legitimate

governmental interest.4 Providing a fair procedure that ensures qualified

candidates move to the next stage of a promotional process is a

legitimate governmental interest.5

Second, that the defendant violated the rule or policy. A

governmental entity’s violation of its own rule or policy is inherently

arbitrary.6

And Third, that the defendant’s violation proximately caused

damage to the plaintiff. 7 Proximate cause is a cause which in a natural

and continuous sequence produces a person’s damage, and is a cause

which a reasonable and prudent person could have foreseen would

probably produce such damage or a similar injurious result.8

There may be more than one proximate cause of damage.

Therefore, the plaintiff need not prove that the defendant’s violation was

the sole proximate cause of the plaintiff’s damage. The plaintiff must

prove, by the greater weight of the evidence, only that the defendant’s

violation was a proximate cause.

Finally, as to this issue on which the plaintiff has the burden of

proof, if you find by the greater weight of the evidence that the plaintiff

was damaged as a result of the defendant’s arbitrary and capricious

action, then it would be your duty to answer this issue “Yes” in favor of

the plaintiff.

If, on the other hand, you fail to so find, then it would be your duty

to answer this issue "No" in favor of the defendant.