Opinion
No. 07-592.
Filed April 15, 2008.
Durham County No. 06CVS5049.
Appeal by plaintiff from order entered 7 March 2007 by Judge Henry W. Hight, Jr. in Durham County Superior Court. Heard in the Court of Appeals 28 November 2007.
Hedrick Murray Kennett Mauch Rogers, PLLC, by Josiah S. Murray, III and John C. Rogers, III, for plaintiff-appellant. Littler Mendelson, by Stephen D. Dellinger, for defendant-appellee.
Keri A. Clark ("plaintiff") appeals an order granting United Emergency Services, Inc.'s ("defendant") motion to dismiss her complaint and her amended complaint. Plaintiff alleged a wrongful termination in violation of public policy claim. We affirm.
Plaintiff began employment with defendant on 1 April 2001. Defendant assists hospitals in staffing emergency room departments. After one year, plaintiff was promoted to a position as a recruiter. Recruiters locate, identify and recruit qualified physicians to staff emergency room departments. Plaintiff was allegedly terminated on 28 February 2006. She filed a complaint on 28 July 2006 asserting discrimination and constructive termination in violation of public policy based on her refusal to speak to defendant's lawyer regarding pending litigation with a former employee, and based on plaintiff's exercising personal leave to receive medical treatment for a blood condition.
On 27 September 2006, defendant filed a motion to dismiss plaintiff's complaint on the grounds that the complaint failed to state a claim upon which relief could be granted because constructive discharge in violation of public policy is not recognized as a viable tort claim in North Carolina. On 29 November 2006, plaintiff amended her complaint to include the claim of "wrongful termination or constructive wrongful termination . . . or . . . involuntary discharge. . . ." The factual allegations remained the same.
On 4 January 2007, defendant filed a motion to dismiss plaintiff's amended complaint for failure to state a claim upon which relief could be granted. On 7 March 2007, the trial court granted defendant's motions to dismiss the complaint and the amended complaint. From this order, plaintiff appeals.
As a preliminary matter, we note that plaintiff's assignment of error does not comply with N.C. Rules of Appellate Procedure, Rule 10(c)(1), which requires each assignment of error to "state plainly, concisely and without argumentation the legal basis upon which error is assigned." N.C.R. App. P. 10(c)(1) (2007). Plaintiff's sole assignment of error states no legal basis for the error. Plaintiff assigned as error the "trial court's granting of Defendant's Motion [t]o Dismiss Plaintiff's Complaint and Defendant's Motion [t]o Dismiss Plaintiff's Amended Complaint pursuant to the terms and provisions of the Order so granting such relief. . . ." Plaintiff failed "to comply with one or more of the non jurisdictional requisites prescribed by the appellate rules." Dogwood Dev. Mgmt. Co., LLC v. White Oak Transp. Co., ___ N.C. ___, ___, ___ S.E.2d ___, ___ slip op. at 11 (Mar. 7, 2008) (No. 303A07). However, plaintiff's failure to state a legal basis for her assignment of error is her only violation of the appellate rules. This violation does not impair our ability to review the alleged error and our review of the plaintiff's assignment of error will not frustrate the adversarial process, as appellee had notice of the basis upon which the court might rule. Id., slip op. at 14 (N.C. Mar. 7, 2008). Plaintiff's violation of the appellate rules is not a "substantial violation" under N.C.R. App. P. 25(b). We therefore will consider plaintiff's assignment of error and will not sanction plaintiff for this violation. Id., slip op. at 15 (N.C. Mar. 7, 2008).
I. Motion to Dismiss
Plaintiff argues the trial court erred in granting defendant's 12(b)(6) motions to dismiss. We disagree.
The standard of review on a motion to dismiss for failure to state a claim is whether as a matter of law, the allegations of the complaint, treated as true, state a claim upon which relief may be granted under some legal theory, whether properly labeled or not. N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2005); Holloman v. Harrelson, 149 N.C. App. 861, 864, 561 S.E.2d 351, 353 (2002); Little v. Atkinson, 136 N.C. App. 430, 431, 524 S.E.2d 378, 379 (2000). "A complaint should not be dismissed under Rule 12(b)(6) unless it affirmatively appears that the plaintiff is entitled to no relief under any state of facts which could be presented in support of the claim." Ladd v. Estate of Kellenberger, 314 N.C. 477, 481, 334 S.E.2d 751, 755 (1985) (quoting Presnell v. Pell, 298 N.C. 715, 719, 260 S.E.2d 611, 613 (1979)). Dismissal is generally precluded except where "the face of the complaint discloses some insurmountable bar to recovery." Id. (quoting Sutton v. Duke, 277 N.C. 94, 102, 176 S.E.2d 161, 166 (1970)). Mislabeling a claim will not "prove fatal . . . if critical facts are sufficiently pled in the body of the complaint that will give the adverse party notice of the assertions against him." Buchanan v. Hunter Douglas, 87 N.C. App. 84, 86, 359 S.E.2d 271, 272 (1987).
II. Constructive Discharge Doctrine
Plaintiff alleged wrongful discharge in violation of public policy based on constructive discharge due to her refusal to speak to defendant's lawyer, and constructive discharge due to exercising previously scheduled leave in violation of public policy stated in N.C. Gen. Stat. § 168A-1.
The general rule in North Carolina is that "absent an employment contract for a definite period of time, both employer and employee are generally free to terminate their association at any time and without reason." Gravitte v. Mitsubishi Semiconductor America, 109 N.C. App. 466, 472, 428 S.E.2d 254, 258 (1993) (citation omitted). This relationship is known as employment at-will. Id. Since plaintiff did not have an employment contract, she is considered an at-will employee.
An exception to the at-will employment doctrine is "where an employee is discharged for an unlawful reason or purpose that contravenes public policy." Id. (quoting Coman v. Thomas Manufacturing Co., Inc., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989)); see also Kurtzman v. Applied Analytical, 347 N.C. 329, 331-32, 493 S.E.2d 420, 422 (1997). To survive a motion to dismiss under this exception, the employee "must allege facts which indicate that [plaintiff] was in fact discharged." Gravitte, 109 N.C. App. at 472, 428 S.E.2d at 258.
Defendant argues plaintiff's allegations do not establish that she was discharged, and therefore, she cannot sustain a claim for wrongful discharge in violation of public policy.
According to plaintiff's complaint, in June of 2005, plaintiff attended a luncheon conference where the director of recruiting ("DOR") expressed dissatisfaction with the senior vice president of operations ("Senior Vice President") and asked the recruiters to report any unfair conduct of the Senior Vice President. Plaintiff told the DOR she did not have any negative or inappropriate conduct to report. The Senior Vice President was terminated a few days later. Plaintiff was asked to meet and confer with defendant's attorney about the termination of the Senior Vice President. Plaintiff met with defendant's attorney but "she refused to make any accusation[s] of misconduct against the Senior Vice President of Operations . . . and refused to answer any question[s] put to her by [defendant's] attorney which pressed for accusatory information. . . ." Plaintiff "felt threatened" after the meeting and reported it to the director of human resources. The Senior Vice President later filed a complaint against the defendant. Plaintiff told defendant she would not participate in any effort to construct a case against the Senior Vice President or provide a defense in the civil case because she "was of the opinion that such would require her to give false testimony against" the Senior Vice President.
On 23 February 2006, prior to taking previously scheduled leave for treatment of a medical condition, plaintiff's superiors told her she was required to work an on-call shift, and if she was unable to do so, she should "find a new career." Plaintiff took her leave. Upon her return, she met with her supervisor and was asked to "write and execute an official statement of resignation." She refused to do so and understood she was terminated when she was told to accept on-call duties or "find a new career." Plaintiff alleges these actions "constituted a wrongful termination or a constructive wrongful termination or an involuntary discharge of Plaintiff's employment with Defendant."
Plaintiff also alleges that "as a consequence of plaintiff's . . . . unwillingness . . . to give what she deemed to be false testimony[,]" defendant's DOR omitted plaintiff from group recruiter meetings, the DOR stopped speaking to plaintiff for "a period of months," spoke negatively about plaintiff to the other recruiters and employees, did not communicate company information to plaintiff, and excluded plaintiff from social events. Plaintiff further alleges that "defendant's actions . . . were . . . taken for the purpose of coercing Plaintiff to resign her position of employment with Defendant in retaliation for Plaintiff's refusal to participate . . . in civil litigation then pending . . . between Defendant's Senior Vice President of Operations and Defendant." Plaintiff also alleges as a result of restructuring, defendant changed her direct supervisor from the DOR to the DOC on 20 February 2006 as part of an action to "actively mistreat Plaintiff."
These allegations amount to a claim of constructive discharge. Constructive discharge occurs when an employer deliberately makes working conditions intolerable, forcing the employee to quit. Doyle v. Asheville Orthopaedic Associates, P.A., 148 N.C. App. 173, 177, 557 S.E.2d 577, 579 (2001).
Plaintiff cites Coman v. Thomas Manufacturing, Co., 325 N.C. 172, 173, 381 S.E.2d 445, 446 (1989), to support the contention that constructive discharge is recognized in North Carolina. In Coman, the Supreme Court reversed dismissal of a complaint alleging that defendant-employer required plaintiff, a truck driver, to violate federal regulations by driving for periods of time in excess of the time allowed by the regulations. Id. Defendant required plaintiff to falsify travel logs to show defendant was in compliance with the regulations. Id. When plaintiff refused to violate the regulations, his pay was decreased by at least fifty percent. Id., 325 N.C. at 174, 381 S.E.2d at 446. The Supreme Court characterized the reduction in pay as "tantamount to a discharge." Id.
In later cases, our appellate courts declined to recognize a public policy exception to the at-will employment doctrine for constructive discharges. Graham v. Hardee's Food Systems, Inc., 121 N.C. App. 382, 385, 465 S.E.2d 558, 560 (1996) ("North Carolina courts have yet to adopt the employment tort of constructive discharge."); Beck v. City of Durham, 154 N.C. App. 221, 231, 573 S.E.2d 183 (2002) (affirming dismissal of plaintiff's claim for constructive discharge); Gravitte, 109 N.C. App. at 472, 428 S.E.2d at 258 (if plaintiff voluntarily resigns, she cannot bring a claim for wrongful discharge); Whitt v. Harris Teeter, 165 N.C. App. 32, 598 S.E.2d 151 (2004), rev'd and dissent adopted by 359 N.C. 625, 614 S.E.2d 531 (2005) (North Carolina courts have yet to adopt a hostile work environment constructive discharge claim); see also Mosley v. Bojangles' Restaurants, Inc., No. 1:03CV00050, 2004 WL 727033, at *11 (M.D.N.C. Mar. 30, 2004) ("North Carolina courts have declined to recognize a public-policy exception to the employment-at-will doctrine for constructive, as opposed to actual, discharges."). Since the tort of constructive discharge is not recognized in North Carolina, the trial court did not err when it dismissed plaintiff's complaint as to her constructive discharge claim.
III. Public Policy Exception
Plaintiff also argues that her allegations are sufficient to establish she was discharged. Specifically, she alleged that she understood she was terminated after being told to work on-call or "find a new career." We agree that plaintiff's allegations could be construed as a discharge, but we conclude that her remaining allegations do not support the claim that her discharge was in violation of public policy.
In Salter v. E J Healthcare, Inc., 155 N.C. App. 685, 690, 575 S.E.2d 46, 49 (2003), this Court determined an employee did not voluntarily resign when she was asked to choose either dismissal or execution of a release that granted her a leave of absence for her injury, without a guaranteed position upon her return. Here, plaintiff was asked to sign a resignation letter after returning from medical leave. We note that the system of notice pleading affords a liberal construction of complaints. See Ladd v. Estate of Kellenberger, 314 N.C. 477, 481, 334 S.E.2d 751, 755 (1985). However, even under a liberal reading of plaintiff's complaint, she fails to plead critical facts to establish that her discharge was in violation of public policy. Buchanan, 87 N.C. App. at 88, 359 S.E.2d at 272.
The public policy exception allows an at-will employee "discharged from his employment in retaliation for (1) his refusal to perform an act prohibited by law, or (2) his performance of an act required by law" to bring a common law tort claim for wrongful discharge. Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 498, 340 S.E.2d 116, 126 (1986); see also Lorbacher v. Housing Auth. of City of Raleigh, 127 N.C. App. 663, 672, 493 S.E.2d 74, 79 (1997), implicitly overruled on other grounds by, Riley v. DeBaer, 144 N.C. App. 357, 547 S.E.2d 831 (2001) ("A valid claim for wrongful discharge exists when an at-will employee is discharged for an unlawful reason or in contravention of public policy."). "Otherwise . . . an employee at will may be discharged, with or without cause, at anytime, unless his discharge is expressly prohibited by statute." Id.
The public policy exception has been narrowly applied. Williams v. Hillhaven Corp., 91 N.C. App. 35, 39, 370 S.E.2d 423, 425 (1988). It has been applied in cases where an employer affirmatively requests that an employee violate established public policy. Sides v. Duke University, 74 N.C. App. 331, 328 S.E.2d 818 (1985), overruled on other grounds by Kurtzman, 347 N.C. at 331, 493 S.E.2d at 422 (nurse alleged her employer pressured her not to testify honestly in a malpractice lawsuit and discharged her after she testified honestly); Amos v. Oakdale Knitting Co., 331 N.C. 348, 416 S.E.2d 166 (1992) (violation of public policy for employer to discharge employee for refusing to work for less than statutory minimum wage); Lenzer v. Flaherty, 106 N.C. App. 496, 418 S.E.2d 276 (1992) (public policy is violated when hospital worker is discharged for reporting patient abuse); Deerman v. Beverly California Corp., 135 N.C. App. 1, 518 S.E.2d 804 (1999) (nurse stated claim where allegedly fired for following state regulations); Roberts v. First-Citizens Bank and Trust Co., 124 N.C. App. 713, 478 S.E.2d 809 (1996) (discharge of commercial loan officer for refusal to cash collateral without giving notice to debtor as required by statute falls within the public policy exception); Verren v. Holden, 121 N.C. App. 779, 468 S.E.2d 471 (1996) (employee discharged for his political affiliation); Williams, 91 N.C. App. at 42, 370 S.E.2d at 426 (reversed dismissal of plaintiff's complaint where plaintiff alleged she was fired after testifying truthfully against her employer); compare Daniel v. Carolina Sunrock Corp., 110 N.C. App. 376, 384, 430 S.E.2d 306, 311-12 (Lewis, J. dissenting), rev'd and dissent adopted by, 335 N.C. 233, 436 S.E.2d 835 (1993) (where employee alleged he was discharged for expressing a willingness to testify honestly but employee did not testify and no evidence that employer encouraged plaintiff to testify in a manner other than truthfully does not support a claim for wrongful discharge); Rush v. Living Centers-Southeast Inc., 135 N.C. App. 509, 521 S.E.2d 145 (1999) (where plaintiff discharged for refusal to testify at trial, but did not prove employer asked her to testify untruthfully, she does not establish a violation of public policy); Garner v. Rentenbach Constructors, Inc., 350 N.C. 567, 515 S.E.2d 438 (1999) (discharge of an employee for failing a drug test not performed by a lab approved by state regulations did not create an actionable claim for discharge); Johnson v. Mayo Yarns, 126 N.C. App. 292, 484 S.E.2d 840 (1997) (discharge of employee for refusal to remove confederate flag decal is not a violation of public policy); see generally J. Michael McGuinness, North Carolina's Developing Public Policy Wrongful Discharge Doctrine in the New Millennium: Basic Principles, Causation Proof of Improper Motive, 23 Campbell L. Rev. 203 (2001). Unlike the plaintiffs in Coman or Sides, plaintiff here does not allege her employer affirmatively demanded that she violate public policy. Plaintiff appears to consider her employer's request that she speak to its lawyer about litigation involving the Senior Vice President as synonymous to a request she give false testimony. All plaintiff alleges is that she was asked to answer defendant's lawyer's questions "which pressed for accusatory information" and she refused. Nowhere does she allege she was asked to give false testimony or that she actually testified. Without such an assertion, she does not allege sufficient facts to establish a wrongful discharge in violation of public policy claim. See Daniel, 110 N.C. App. at 385, 430 S.E.2d at 312 (innocuous statements by employer that plaintiff "needed to remember who she worked for and that she should say as little as possible" does not amount to a request to violate policy).
In addition, it is worth noting that plaintiff's allegations do not establish a causal connection between the defendant's actions and the termination. "To establish a prima facie case of retaliation, it must be shown that (1) the plaintiff engaged in a protected activity, (2) the employer took adverse action, and (3) there existed a causal connection between the protected activity and the adverse action." Salter, 155 N.C. App. at 693, 575 S.E.2d at 51 (citing Brewer v. Cabarrus Plastics, Inc., 130 N.C. App. 681, 690, 504 S.E.2d 580, 586 (1998)).
Here, the facts indicate she was discharged more than seven months after her refusal to speak to defendant's lawyer. Proximityin time between the alleged request to violate public policy and the alleged discharge is relevant in determining whether a wrongful discharge resulted in violation of public policy. Daniel, 110 N.C. App. at 385-86, 430 S.E.2d at 312; see also Salter, 155 N.C. App. at 694, 575 S.E.2d at 52 (no close temporal connection where approximately two and a half months elapsed between the claim and termination). We conclude the trial court did not err in dismissing plaintiff's complaint and amended complaint based on the wrongful termination in violation of public policy claim.
IV. Disabling Condition
Plaintiff also argues her discharge after returning from a medically necessary leave is a violation of public policy found in the Persons with Disabilities Protection Act ("NCPDPA") codified at N.C. Gen. Stat. § 168A-1, et seq.
The public policy exception has been narrowly applied in disability cases. See Kelly v. Carteret County Bd. Of Educ., 149 N.C. App. 188, 190, 560 S.E.2d 390, 391-92 (2002) (affirming dismissal of complaint alleging wrongful discharge based on public policy where the "gravamen" of plaintiff's complaint is based on a disabling condition and not a refusal to violate public policy). In Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 388 S.E.2d 134 (1990), the Supreme Court affirmed dismissal of a complaint which alleged wrongful termination in violation of the North Carolina Handicapped Persons Protected Act, were the employee did not allege sufficient facts to show he qualified as a handicapped person under the Act. Id., 326 N.C. at 210-11, 388 S.E.2d at 137; see also Rishel v. Nationwide Mut. Ins. Co., 297 F. Supp. 2d 854 (M.D.N.C. 2003) (employee was not wrongfully discharged on the basis of public policy where he did not show he was regarded as disabled under the NCPDPA); compare Buchanan v. Hunter Douglas, 87 N.C. App. 84, 359 S.E.2d 271 (1987) (plaintiff stated a valid claim under the Handicapped Persons Protection Act where plaintiff alleged he was physically handicapped with symptoms that resemble cerebral palsy); Atkins v. USF Dugan, 106 F. Supp. 2d 799 (M.D.N.C. 1999) (employee stated a discharge in violation of public policy claim where alleged heart disease and diabetes affected his ability to breathe and work).
Here, plaintiff alleges she was discharged because she refused to work an on-call shift while she would be receiving medical treatment for hemochromatosis, a blood condition. Prior to 20 February 2006, plaintiff was diagnosed with hemochromatosis which required her to receive periodic treatments leaving her unable to perform 24-hour-7-days-a-week on-call activities. She informed her supervisor she needed the treatment and was told defendant would work with her so she would not be required to be on-call while she was receiving treatment. On 23 February 2006, the DOC told plaintiff she would be required to perform on-call duties every other week beginning on 24 February 2006. Plaintiff told the DOC she could not be available on-call that weekend due to treatments for her blood disease, and was told to be on-call or "find a new career." Plaintiff used personal days to receive the treatments and returned to work on 28 February 2006. That same day she met with the director of human resources and DOC who asked her to write an official statement of resignation. She refused. Plaintiff alleged that the defendant's actions resulted in wrongful termination of her employment and she was discriminated against based on a disabling condition.
The public policy she alleges defendant violated is under the NCPDPA. To sustain a claim for wrongful discharge in violation of public policy, plaintiff needed to plead sufficient facts to establish that she qualifies as a disabled person under the statute. Burgess, 326 N.C. at 210-11, 388 S.E.2d at 137.
N.C. Gen. Stat. § 168A-2(b) provides that "discrimination based upon a disabling condition is contrary to the public interest. . . ." N.C. Gen. Stat. § 168A-2(b) (2007). It is a discriminatory practice for an employer to discharge "or otherwise discriminate against a qualified person with a disability on the basis of a disabling condition. . . ." N.C. Gen. Stat. § 168A-5(a)(1).
A disabling condition is defined as "any condition or characteristic that renders a person a person with a disability." N.C. Gen. Stat. § 168A-3(1) (2007). A person with a disability "means any person who (i) has a physical or mental impairment which substantially limits one or more major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment." N.C. Gen. Stat. § 168A-3(7a) (2007). Physical impairment is defined as "any physiological disorder or abnormal condition . . . affecting one or more of the following body systems . . . including . . . hemic. . . ." N.C. Gen. Stat. § 168A-3(7a)(a). Hemic is defined in the American Heritage Medical Dictionary as of or pertaining to the blood. Plaintiff alleges she has hemochromatosis, a blood disease, which arguendo satisfies the definition of a physical impairment within the meaning of N.C. Gen. Stat. § 168A-3(7a)(a).
The next question is whether plaintiff pled sufficient facts to show that her impairment substantially limits one or more major life activities, that she has a record of such an impairment, or that she is regarded as having such an impairment. Major life activities are defined as "caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." N.C. Gen. Stat. § 168A-3(7a)(b). Having a record of such an impairment means having "a history of, or has been misclassified as having, a mental or physical impairment that substantially limits major life activities." N.C. Gen. Stat. § 168A-3(7a)(c) (emphasis added). "Is regarded as having an impairment" means the plaintiff "(i) has a physical or mental impairment that does not substantially limit major life activities but that is treated as constituting such a limitation; (ii) has a physical or mental impairment that substantially limits major life activities because of the attitudes of others; or (iii) has none of the impairments defined . . . in this subdivision but is treated as having such an impairment." N.C. Gen. Stat. § 168A-3(7a)(d).
In Campbell v. North Carolina Dept. Of Transp., 155 N.C. App. 652, 659-60, 575 S.E.2d 54, 60 (2003), an employee properly alleged she had a physical impairment that substantially limited major life activities to qualify as a person with a disabling condition under the NCPDPA. The employee worked as a processing assistant. Her duties required her to work with open files. Id., 155 N.C. App. at 654, 575 S.E.2d at 57. The employee's asthma and dust allergies were aggravated from working with the open files and she suffered severe asthma attacks which required hospitalization and nearly required artificial respiration. Id. Her doctor wrote to her employer explaining that she would be unable to return to her present working conditions due to her asthma condition. Id., 155 N.C. App. at 655, 575 S.E.2d at 57.
Here, although working qualifies as a major life activity under N.C. Gen. Stat. § 168A-3(7a)(b), plaintiff does not plead facts to allege that her ability to work is substantially limited by failure to be on-call while she was receiving medical treatments. In fact, her complaint suggests she could perform on-call duties at a time she does not receive treatment. Nor does she allege that she is regarded as having an impairment that substantially limits a major life activity, or that she is treated as having such a limitation. Plaintiff argues in her brief that "[she] alleged that the events surrounding her termination violated established public policy by stating that [defendant] knew of her medical condition and failed to make reasonable accommodation for it." Before we reach the issue of whether defendant's actions were a violation of the NCPDPA, plaintiff first has to allege facts to establish that she qualifies as a person with a disabling condition. Because plaintiff did not plead facts in her amended complaint to establish that she qualifies as a "person with a disabling condition" within the meaning of N.C. Gen. Stat. § 168A-3, we affirm the trial court's dismissal of plaintiff's complaint and amended complaint.
Affirmed.
Judges HUNTER and STROUD concur.
Report per Rule 30(e).