Opinion
Civil No. 1:02 CV 00121
June 13, 2002
MEMORANDUM OPINION
On December 21, 2001, Plaintiff Janie Brooks Helmstetler ("Plaintiff") filed this action against her employer, Defendant Borden Chemical, Inc. ("Defendant"), in the General Court of Justice, Superior Court Division, Davidson County, North Carolina, alleging wrongful constructive discharge and hostile work environment based on sex discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et. seq. ("Title VII"), wrongful constructive discharge in violation of the North Carolina Equal Employment Practices Act, N.C. Gen. Stat. § 143-422.1 et seq. ("NCEEPA"), and intentional and negligent infliction of emotional distress under North Carolina law. On February 21, 2002, Defendant removed to this court, based on federal question jurisdiction.
This matter is before the court on a motion to dismiss Plaintiff's claim of wrongful constructive discharge under NCEEPA pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the court will grant Defendant's motion to dismiss the NCEEPA claim.
FACTS
Plaintiff was employed by Defendant as a quality control technician from December 10, 1986, to September 1999. Beginning in May of 1999, Plaintiff avers that she was subjected to sexual comments and jokes and that Defendant failed to stop the misconduct after it was put on notice. Plaintiff further contends that she resigned from her employment with Defendant on September 8, 1999, because of "unbearable and intolerable working conditions." (Compl. ¶ 16.)
DISCUSSION
A court may dismiss a complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Even after accepting all well-pleaded allegations in Plaintiff's complaint as true and drawing all reasonable factual inferences from those facts in Plaintiff's favor, Plaintiff has not stated a claim upon which relief can be granted for wrongful constructive discharge under NCEEPA.
Plaintiff alleges a claim of wrongful constructive discharge under NCEEPA. NCEEPA provides:
It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees.
N.C. Gen. Stat. § 143-422.2. "[A]bsent a clear indication from the courts or the legislature of North Carolina that a private right of action does exist under the NCEEPA, it would be inappropriate for a federal court to create a private right of action under the NCEEPA." Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000) (internal quotation omitted) North Carolina courts have not recognized a private cause of action under NCEEPA. Id.; Cline v. Dahle, No. COAOl-94, 2002 WL 857552, at *7 (N.C.App. May 7, 2002) (holding that "our courts have never found that violation of the NCEEPA creates a private right of action").
Although NCEEPA does not provide for a private cause of action, courts have applied NCEEPA to common law claims and other specific statutory remedies. Smith, 202 F.3d at 247 (collecting cases). North Carolina courts, however, have not recognized the tort of wrongful constructive discharge. DeWitt v. Mecklenburg County, 73 F. Supp.2d 589, 599 n. 6 (W.D.N.C. 1999) ("Plaintiff's potential constructive discharge claim is only cognizable under federal law, as North Carolina has not recognized the tort of constructive discharge."); Cones v. McDonald's Corp., 955 F. Supp. 5391 540-41 (E.D.N.C. 1996) ("North Carolina courts have yet to recognize the tort of constructive discharge."); Graham v. Hardee's Food Sys., 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."). Thus, Plaintiff's wrongful constructive discharge claim under NCEEPA fails as a matter of law.
CONCLUSION
For the reasons set forth above, the court will grant Defendant's motion to dismiss.
An order in accordance with this memorandum opinion shall be entered contemporaneously herewith.