The employment of Howard H. Pierce, Sr., ("Plaintiff") was terminated by The Atlantic Group, Inc., et al., ("Defendant Atlantic"). Defendant Atlantic is an engineering, construction and maintenance contractor providing services to Duke Energy Carolinas, LLC, ("Defendant Duke Energy") (together, "Defendants"). Plaintiff filed a complaint alleging the following: In terminating Plaintiff's employment, Defendants violated the Retaliatory Employment Discrimination Act; Plaintiff was wrongfully discharged in violation of public policy and N.C. Gen.Stat. § 95-126 et seq., which governs the occupational health and safety of North Carolina employees; Defendants' actions amounted to negligent and intentional infliction of emotional distress; and Defendants defamed Plaintiff. On appeal, we must determine whether the trial court erred by dismissing Plaintiff's complaint pursuant to Defendants' Rule 12(b)(6) motion. We affirm the order of the trial court.
The record tends to show the following: Plaintiff was hired by Defendant Atlantic in 2001, and held numerous positions with Defendant Atlantic, including supervisor, certified crane operator, and rigger. Over the course of eight years with Defendant Atlantic, Plaintiff was promoted from the position of rigger to lifting rigger supervising coordinator. Plaintiff's pay was, over time, increased to the rate of forty-four dollars per hour. Plaintiff reported to both Defendant Atlantic and Defendant Duke Energy.
In February 2009, Plaintiff received a memorandum from Defendant Duke Energy alerting employees that new regulations, 13 N.C. Admin. Code 7F.0901 et seq., would affect crane operators and riggers, requiring them to be certified. The regulations were scheduled to take effect on 1 October 2009.
In late March 2009, Defendant Atlantic asked Plaintiff to take a twenty-eight day vacation break from his position at the McGuire Duke Energy Nuclear Power Plant ("McGuire") where he was currently working. On 30 March 2009, Plaintiff began his vacation, expecting to return to his former position as supervisor at a pay rate of forty-four dollars per hour, as he was assured by a staffing employee with Defendant Atlantic, Ms. Angie Green ("Ms. Green"). Shortly after beginning his vacation, Plaintiff received a phone call from Ms. Green, who asked Plaintiff whether he would be willing to assist Defendant Atlantic in staffing a fueling outage at Oconnee Nuclear Power Plant ("Oconnee"). Plaintiff agreed to assist on the condition that Ms. Green contact his supervisors at both Defendant Atlantic and Defendant Duke Energy to ensure that he would not lose his supervisory level position and salary upon his return to McGuire. Ms. Green agreed. Ms. Green later contacted Plaintiff, explaining that his supervisors had approved, but for purposes of the Oconnee assignment, Plaintiff would only be paid twenty-seven dollars per hour. Plaintiff accepted the temporary pay reduction.
Several weeks into the Oconnee assignment, Ms. Green contacted Plaintiff, requesting that Plaintiff return to McGuire as an advanced rigger rather than a supervisor, at a pay rate of twenty-eight dollars per hour. Plaintiff was informed that this demotion would be temporary until the conclusion of the "fall outage" period, at which time Plaintiff would return to his prior position.
Plaintiff continued to be concerned about the certification of the operators as required by 13 N.C. Admin. Code 7F.0901 et seq., and "feared that Defendants' explanations for his demotion in pay were a pretext in order to remove him from a supervisor position."
On 24 August 2009, Plaintiff called Defendant Duke Energy's "ethics hotline" and reported the alleged "retaliatory treatment" he had received. Plaintiff believed the hotline was a confidential resource. However, Plaintiff was asked to provide his identity and the names of "persons who concerned him." Plaintiff named Mike Henline ("Henline") of Defendant Atlantic, Jimmy Shelton ("Shelton") of Defendant Duke Energy, Donny Lawing ("Lawing") of Defendant Duke Energy, Maurice Horn ("Horn") of Defendant Duke Energy, and Joe Bates ("Bates") of Defendant Duke Energy. Plaintiff called the hotline on multiple other occasions after his first call.
During September of 2010, Plaintiff felt that "workplace conditions became increasingly adverse." Specifically, Plaintiff felt that his schedule was being arbitrarily changed and interrupted, such that he could not get sufficient hours to support his family.
On Friday, 19 September 2010, Plaintiff was advised that on Monday, 21 September 2010, Plaintiff would begin on the nightshift. As a result of the change, Plaintiff filled out his timecard on Friday morning—rather than Monday morning, as was his usual practice—estimating the hours he was required to work on Friday based on his instructions from Shelton. Shortly after filling out his timecard, Plaintiff learned that his wife had possibly had a heart attack, and she had been transported to the hospital. Plaintiff left the plant to go to the hospital and called Mr. Leroy Price ("Price") to explain his absence. Price advised Defendant to "see to his wife, and ... the time card issues would be resolved the following week."
On the evening of 19 September 2009, a "Site Maintenance Lifting Coordinator" for Defendant Duke Energy sent an email to Defendant Atlantic stating, "I have document proof that [Plaintiff] has falsified his timesheet ... [Henline] is in the process of pulling [Plaintiff's] badge." However, at Plaintiff's request, Henline later corrected Plaintiff's timecard and initialed his corrections. Henline assured Plaintiff that "he would suffer no adverse consequences from the mistakes in completing the card."
On Monday, 21 September 2009, Plaintiff called Henline and was told not to report for his shift but to come in the next day. Plaintiff was told "he would be written up but that the timecard would be corrected." On 23 September 2009, Plaintiff was again told not to come in but to report the next morning. When Plaintiff arrived on 24 September 2009, Henline and Bates terminated Plaintiff's employment, asked him to return his badge, and removed Plaintiff from the premises. Plaintiff reviewed the documents regarding his termination and discovered that the basis of his termination was "falsification of a timecard[.]"
Defendant Duke Energy reported Plaintiff to the Nuclear Regulatory Commission, barring Plaintiff from "unescorted access to facilities around the nation." Plaintiff alleges this "permanently damag[ed] his reputation and his ability to obtain suitable similar employment."
Plaintiff appealed his termination in human resources, but his appeal was unsuccessful. On 16 August 2010, Plaintiff filed a complaint against Defendants. Both Defendant Duke Energy and Defendant Atlantic filed motions for an extension of time to file their answers, and both Defendants received a thirty day extension. Defendant Duke Energy filed their answer on 12 October 2010 and alleged that Plaintiff's complaint failed to state a claim upon which relief may be granted. Defendant Atlantic also filed an N.C. Gen.Stat. § 1A-1, 12(b)(6) motion to dismiss Plaintiff's complaint on 20 October 2010.
On 17 November 2010, Plaintiff filed a motion to amend the complaint. In Plaintiff's amended complaint, also filed 17 November 2010, he realleges the following: Defendants violated the Retaliatory Employment Discrimination Act; Plaintiff was wrongfully discharged in violation of public policy and N.C. Gen.Stat. § 95-126 et seq., which governs the occupational health and safety of North Carolina employees; Defendants' actions amounted to negligent and intentional infliction of emotional distress; and Defendants defamed Plaintiff. Defendant
On 3 February 2011, the trial court entered an order granting Defendants' N.C. Gen.Stat. § 1A-1, 12(b)(6) motion to dismiss Plaintiff's complaint. From this order, Plaintiff appeals.
"On a motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, the standard of review is whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory." Stunzi v. Medlin Motors, Inc., ___ N.C.App. ___, ___, 714 S.E.2d 770, 773 (2011) (quotation omitted). "The complaint must be liberally construed, and the court should not dismiss the complaint unless it appears beyond a doubt that the plaintiff could not prove any set of facts to support his claim which would entitle him to relief." Id. (quotation omitted). Dismissal under Rule 12(b)(6) is proper when one of the following three conditions is satisfied: "(1) the complaint on its face reveals that no law supports the plaintiff's claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiff's claim." Id. at ___, 714 S.E.2d at 773-74.
In Plaintiff's argument on appeal, he contends the trial court erred by dismissing his complaint against Defendants pursuant to Defendants' N.C. Gen.Stat. § 1A-1, 12(b)(6) motion. Specifically, Plaintiff argues that the allegations in each of the five counts in Plaintiff's complaint, treated as true, are sufficient in this case to state a claim upon which relief may be granted. We address each count in turn, and ultimately conclude the trial court did not err by dismissing Plaintiff's complaint.
Plaintiff first contends the trial court erred by dismissing Plaintiff's allegation that Defendants violated the Retaliatory Employment Discrimination Act ("REDA"). We disagree.
N.C. Gen.Stat. § 95-241(a) (2011) provides that "[n]o person shall discriminate or take any retaliatory action against an employee because the employee in good faith does or threatens to ... [f]ile a claim or complaint, initiate any inquiry, investigation, inspection, proceeding or other action, or testify or provide information to any person with respect to ... Article 16 of this Chapter[,]" the Occupational Safety and Health Act of North Carolina ("OSHA"), N.C. Gen.Stat. § 95-126 (2011) et. seq.
"In order to state a claim under REDA, a plaintiff must show (1) that he exercised his rights as listed under N.C. Gen.Stat. § 95-241(a), (2) that he suffered an adverse employment action, and (3) that the alleged retaliatory action was taken because the employee exercised his rights under N.C. Gen.Stat. § 95-241(a)." Wiley v. UPS, Inc., 164 N.C. App. 183, 186, 594 S.E.2d 809, 811 (2004) (citation omitted). An adverse action includes "the discharge, suspension, demotion, retaliatory relocation of an employee, or other adverse employment action taken against an employee in the terms, conditions, privileges, and benefits of employment." N.C. Gen.Stat. § 95-240(2) (2011). "If plaintiff presents a prima facie case of retaliatory discrimination, then the burden shifts to the defendant to show that he `would have taken the same unfavorable action in the absence of the protected activity of the employee.'" UPS, Inc., 164 N.C.App. at 186, 594 S.E.2d at 811. (quoting N.C.Gen.Stat. § 95-241(b)). "Although evidence of retaliation in a case such as this one may often be completely circumstantial, the causal nexus between protected activity and retaliatory discharge must be something more than speculation." Id. at 187, 594 S.E.2d at 811 (quotation omitted).
In this case, the parties do not dispute that Plaintiff "suffered an adverse employment action[.]" Id. at 186, 594 S.E.2d at 811. However, the parties dispute whether Plaintiff "exercised his rights as listed under N.C. Gen.Stat. § 95-241(a)" and whether "the alleged retaliatory action was taken because
Plaintiff contends he exercised his rights as listed under N.C. Gen.Stat. § 95-241(a) by "initiat[ing] any inquiry ... with respect to" OSHA. N.C. Gen.Stat. § 95-241(a). Specifically, Plaintiff states that he initiated an inquiry when he "submitted a proposed plan that would provide certification of the crane operators in compliance with the upcoming regulatory change." Plaintiff further contends, "[t]hereafter, [Plaintiff] complained to his [Defendant Atlantic] and [Defendant Duke Energy] supervisors weekly of [Defendants] failure to begin certifying crane operators." Plaintiff's complaint alleges the following with regard to Plaintiff's initiation of an inquiry pursuant to N.C. Gen.Stat. § 95-241(a):
Our Courts have not defined or addressed what it means to "initiate [an] inquiry" pursuant to N.C. Gen.Stat. § 95-241(a) with respect to OSHA.
The United States District Court for the Middle District of North Carolina addressed the question of what it means to initiate an inquiry pursuant to N.C. Gen.Stat. § 95-241(a) in the context of OSHA in Jurrissen v. Keystone Foods, LLC, 2008 WL 3925086, 5, 2008 U.S. Dist. LEXIS 63901, 15-16 (2008). The Court stated:
Id.; see also, e.g., Delon v. McLaurin Parking Co., 367 F.Supp.2d 893, 902, aff'd, 146 Fed.Appx. 655 (2005) ("The complaint that Plaintiff made to [a manager] [is not ... protected under REDA[;][r]ather, it was merely a complaint to a manager about a supervisor"); Cromer v. Perdue Farms, Inc., 900 F.Supp. 795, 801 n. 6 (1994), aff'd, 1995 WL 528298, 1995 U.S.App. LEXIS 25327 (1995) (explaining that "North Carolina has never recognized a cause of action for wrongful discharge in favor of employees who orally
In Jurrissen, the plaintiff's complaint contained the following allegations that the defendant retaliated against the plaintiff:
Jurrissen, 2008 WL 3925086, 5-6, 2008 U.S. Dist. LEXIS 63901, 17-18. The Court in Jurrissen concluded that "[t]hese allegations, drawing all inferences in favor of Plaintiff, conceivably constitute the act of `initiat[ing] any inquiry, investigation, inspection, proceeding or other action, or testif[ying] or provid[ing] information to any person with respect to ... [OSHANC].'" Id. (citing N.C. Gen.Stat. § 95-241(a)).
However, in Delon, 367 F.Supp.2d 893, the Court held that a plaintiff's criticism of his supervisor to a division manager "was not one of the enumerated list that is protected under REDA[;] [r]ather, it was merely a complaint to a manager about a supervisor." Id., 367 F.Supp.2d at 902.
We believe the facts of this case are more closely aligned with Delon than Jurrissen. In Jurrissen, the plaintiff alleged that he specifically communicated with the defendant's internal auditor about an "ongoing investigation into defendant's health and safety practices." Jurrissen, 2008 WL 3925086, 2008 U.S. Dist. LEXIS 63901. However, in Delon, there was no evidence of an investigation, and all communications were between the plaintiff and his supervisors or managers. In the present case, Plaintiff spoke only to his supervisors about his concerns regarding the certification of riggers. Plaintiff also called Defendant Duke Energy's ethics hotline; however, Plaintiff's complaint clearly states that Plaintiff called the ethics hotline to "report[] the retaliatory treatment he had been receiving"—not to report a concern regarding occupational health and safety in the context of his employment with Defendant Atlantic. We do not believe the foregoing allegations are sufficient to constitute the initiation of an inquiry pursuant to N.C. Gen.Stat. § 95-241(a). Therefore, we conclude the trial court did not err in granting Defendants' N.C. Gen.Stat. § 1A-1, 12(b)(6) motion to dismiss Plaintiff's REDA claim.
In Plaintiff's second argument on appeal, he contends the trial court erred in dismissing Plaintiff's claim for wrongful discharge. We disagree.
"North Carolina is an employment-at-will state." Kurtzman v. Applied Analytical Indus., 347 N.C. 329, 331, 493 S.E.2d 420, 422 (1997), rehearing denied, 347 N.C. 586, 502 S.E.2d 594 (1998). "This Court has repeatedly held that in the absence of a contractual agreement between an employer and an employee establishing a definite term of employment, the relationship is presumed to be terminable at the will of either party without regard to the quality of performance of either party." Id.
The doctrine of employment-at-will, however, "is not without limits[,] and a valid claim for relief exists for wrongful discharge of an employee at will if the contract is terminated for an unlawful reason or a purpose that contravenes public policy." Ridenhour v. IBM, 132 N.C. App. 563, 567, 512 S.E.2d 774, 777, disc. review denied, 350 N.C. 595, 537 S.E.2d 481 (1999) (quotation omitted). "Public policy is defined as the principle
"Under certain circumstances, notice pleading is not sufficient to withstand a motion to dismiss; instead a claim must be pled with specificity.... One such circumstance is when an at-will employee brings a wrongful termination claim upon the theory of a violation of public policy." Gillis v. Montgomery County Sheriff's Dep't, 191 N.C. App. 377, 379, 663 S.E.2d 447, 449, disc. review denied, 362 N.C. 508, 668 S.E.2d 26 (2008) (citation omitted).
Garner v. Rentenbach Constructors, Inc., 350 N.C. 567, 571-72, 515 S.E.2d 438, 441 (1999) (quotation omitted). "To prevail on a claim for unlawful termination in violation of public policy a plaintiff must identify a specified North Carolina public policy that was violated by an employer in discharging the employee." McDonnell v. Tradewind Airlines, Inc., 194 N.C. App. 674, 677-78, 670 S.E.2d 302, 305, disc. review denied, 363 N.C. 128, 675 S.E.2d 657 (2009) (quotation omitted).
In this case, Plaintiff made the following allegations in his complaint regarding his wrongful discharge:
Plaintiff cites to REDA and provisions of OSHA in support of his wrongful discharge claim.
Plaintiff specifically alleges that his termination contravenes the following public policies: "(a) reducing the number of occupational health and safety hazards in the workplace, (b) encouraging/requiring employees to cooperate with occupational health and safety audits, inspections, and investigations." Defendants' alleged violations of the foregoing policies, according to Plaintiff's complaint, stems from the following lack of action: "[Plaintiff] brought [the prospective 13 N.C. Admin. Code 7F.0901 et seq.] to the attention of his supervisors and proposed a process by which the operators could be trained and certified in a way that would not interfere with the operators of the plant during its busiest times[;] [Plaintiff] did not receive any response to his proposal." Other than allegations that Defendants did not accept Plaintiff's proposal for certifying operators, Plaintiff's complaint is devoid of allegations that Defendants failed to "reduc[e] the number of occupational
In Plaintiff's next argument on appeal, he contends the trial court erred in dismissing his claim of negligent and intentional infliction of emotional distress. We disagree.
To state a claim for negligent infliction of emotional distress, a plaintiff must allege that "(1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress ..., and (3) the conduct did in fact cause the plaintiff severe emotional distress." Johnson v. Ruark Obstetrics & Gynecology Assoc., P.A., 327 N.C. 283, 304, 395 S.E.2d 85, 97, rehearing denied, 327 N.C. 644, 399 S.E.2d 133 (1990).
Intentional infliction of emotional distress requires "(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress to another." Dickens v. Puryear, 302 N.C. 437, 452, 276 S.E.2d 325, 335 (1981). Defendants' conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible grounds of decency." Lorbacher v. Housing Auth., 127 N.C. App. 663, 676, 493 S.E.2d 74, 81-82 (1997).
Both negligent and intentional infliction of emotional distress require that the emotional distress be severe. Defendants' conduct must "cause[] mental distress of a very serious kind." Trought v. Richardson, 78 N.C. App. 758, 763, 338 S.E.2d 617, 620, disc. review denied, 316 N.C. 557, 344 S.E.2d 18 (1986) (quotation omitted). "[S]evere emotional distress" has been defined as "any emotional or mental disorder, such as, for example, neurosis, psychosis, chronic depression, phobia, or any other type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so." Johnson, 327 N.C. at 304, 395 S.E.2d at 97.
In this case, only one allegation in Plaintiff's complaint describes Plaintiff's alleged emotional distress: "[Plaintiff] began to experience serious on and off the job stress, severely affecting his relationship with his wife and family members." This, we do not believe, is sufficient to state a claim for negligent or intentional infliction of emotional distress. See Johnson, 327 N.C. at 304, 395 S.E.2d at 97 (defining severe emotional distress); see also Johnson v. Bollinger, 86 N.C. App. 1,
In Plaintiff's final argument on appeal, he contends the trial court erred by dismissing his defamation claim. We disagree.
"In North Carolina, the term defamation applies to the two distinct torts of libel and slander." Boyce & Isley, PLLC v. Cooper, 153 N.C. App. 25, 29, 568 S.E.2d 893, 898 (2002), cert. denied, 540 U.S. 965, 124 S.Ct. 431, 157 L.Ed.2d 310 (2003). "In general, libel is written while slander is oral." Phillips v. Winston-Salem/Forsyth County Bd. of Educ., 117 N.C. App. 274, 277, 450 S.E.2d 753, 756 (1994), disc. review denied, 340 N.C. 115, 456 S.E.2d 318 (1995). In this case, Plaintiff's complaint alleges two written communications were defamatory.
"In order to recover for [libelous] defamation, a plaintiff must allege and prove that the defendant made false, defamatory statements of or concerning the plaintiff, which were published to a third person, causing injury to the plaintiff's reputation." Tyson v. L'Eggs Products, Inc., 84 N.C. App. 1, 10-11, 351 S.E.2d 834, 840 (1987). "[T]he words attributed to defendant [must] be alleged `substantially' in haec verba, or with sufficient particularity to enable the court to determine whether the statement was defamatory." Stutts v. Duke Power Co., 47 N.C. App. 76, 84, 266 S.E.2d 861, 866 (1980). North Carolina courts recognize three classes of libel:
Tyson, 84 N.C.App. at 11, 351 S.E.2d at 840 (quotation omitted).
In the present case, we must now examine whether Plaintiff's complaint sets forth a cause of action for each of the foregoing types of libel. In Plaintiff's complaint, he alleges the following:
Plaintiff alleges two defamatory publications: (1) an email from a "Site Maintenance Lifting Coordinator" at Defendant Duke Energy to Defendant Atlantic regarding Plaintiff's allegedly falsified timesheet; and (2) a report from Defendant Duke Energy to the Nuclear Regulatory Commission barring Plaintiff from unescorted access to nuclear facilities. We must examine each of the two foregoing allegations of libel in the context of the three recognized types of libel in North Carolina.
We do not believe that Plaintiff's complaint, alleging that Defendant "falsely contend[ed]" that Plaintiff "falsified his time card[,]" or reported Plaintiff to the Nuclear Regulatory Commission sets forth a cause of
We further believe Plaintiff's complaint is insufficient to state a claim for defamation within the second class because the complaint does not allege that the email or report are susceptible of two meanings. See Tyson, 84 N.C.App. at 11, 351 S.E.2d at 840 (holding, "the complaint is insufficient to state a claim for libel within the second class because the complaint does not allege that the letter is susceptible of two meanings"). We therefore conclude the trial court did not err by dismissing Plaintiff's claim of the second type of defamation.
To state a claim of libel per quod, Plaintiff must allege special damages. Ellis v. Northern Star Co., 326 N.C. 219, 231, 388 S.E.2d 127, 134, rehearing denied, 326 N.C. 488, 392 S.E.2d 89 (1990). "Facts giving rise to special damages must be alleged so as to fairly inform defendant of the scope of plaintiff's demand." Stanford v. Owens, 46 N.C. App. 388, 398, 265 S.E.2d 617, 624, disc. review denied, 301 N.C. 95 (1980). We do not believe that Plaintiff's allegation that the alleged defamation "damaged. [Plaintiff's] economic circumstances" fairly informs Defendants of the scope of Plaintiff's demand. Therefore, we conclude the trial court did not err by dismissing Plaintiff's claim of libel per quod pursuant to Defendants' Rule 12(b)(6) motion.
For the foregoing reasons, we affirm the order of the trial court dismissing Plaintiff's complaint in its entirety.
AFFIRMED.
Judges HUNTER, JR. and McCULLOUGH concur.