HOWARD H. PIERCE, SR., Plaintiff v. THE ATLANTIC GROUP, INC, d/b/a/ DZ ATLANTIC, DAY & ZIMMERMANN LLC OF PENNSYLVANIA and DAY & ZIMMERMAN LLC d/b/a/ DZ ATLANTIC GROUP and/or DZ ATLANTIC, and DUKE ENERGY CAROLINAS, LLC, Defendants
Case Details
- Citation
- 219 N.C. App. 19
- Judge(s)
- Judges HUNTER, JR. and McCULLOUGH concur.
- Procedural Posture — the stage the case had reached
- motion to dismiss
- State
- North Carolina
- Circuit
- 4th Circuit
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
The trial court properly dismissed the plaintiff's complaint under Rule 12(b)(6). The court affirmed dismissal of all claims: the REDA retaliation claim failed because the plaintiff did not initiate a protected inquiry under N.C.G.S. § 95-241(a) (merely calling an ethics hotline to report retaliatory treatment, not safety concerns, was insufficient); the wrongful discharge claim failed because the plaintiff did not allege defendants violated OSHA obligations; and the defamation, negligent infliction of emotional distress, and intentional infliction of emotional distress claims were also properly dismissed.
Excerpt
HOWARD H. PIERCE, SR., Plaintiff v. THE ATLANTIC GROUP, INC, d/b/a/ DZ ATLANTIC, DAY & ZIMMERMANN LLC OF PENNSYLVANIA and DAY & ZIMMERMAN LLC d/b/a/ DZ ATLANTIC GROUP and/or DZ ATLANTIC, and DUKE ENERGY CAROLINAS, LLC, Defendants No. COA11-494 (Filed 21 February 2012) 1. Employer and Employee—wrongful discharge—Retaliatory Employment Discrimination Act—initiation of inquiry The trial court did not err by dismissing plaintiff’s complaint under N.C.G.S. § 1A-1, Rule 12(b)(6) for violation 'of the Retaliatory Employment Discrimination Act. Plaintiff called defendant Duke’s ethics hotline to report the retaliatory treatment he had been receiving and not to report a concern regarding occupational health and safety in the context of his employment with defendant Atlantic. These allegations were insufficient to constitute the initiation of an inquiry pursuant to N.C.G.S. § 95-241(a). 2. Employer and Employee—wrongful discharge—failure to show violation of law or public policy The trial court did not err by dismissing plaintiffs wrongful discharge claim. Plaintiff’s allegations failed to show that defendants ever violated their Occupational Safety and Health Adminstration obligations, including 13 N.C. Admin. Code 07F .0901, et seq., and plaintiff’s assertions that defendants’ termination of his employment violated law or public policy based on provisions of the administrative code that were yet to become effective did not remedy this deficiency in plaintiff’s pleadings. 3. Emotional Distress—negligent infliction of emotional distress—intentional infliction of emotional distress The trial court did not err by dismissing plaintiff’s claims of negligent and intentional infliction of emotional distress. Plaintiff’s statement that he began to experience serious on and off the job stress that severely affected his relationship with his wife and family members was insufficient to support these claims. 4. Libel and Slander—libel per se—failure to allege email or report susceptible of two meanings—libel per quod The trial court did not err by dismissing plaintiff’s defamation claim. Plaintiff’s complaint, alleging that defendant falsely contended that plaintiff falsified his time card or reported plaintiff to the Nuclear Regulatory Commission did not set forth a cause of action for libel per se. Further, plaintiff’s complaint was insufficient to state a claim because the complaint did not allege that the email or report were susceptible of two meanings. Finally, plaintiff’s allegation that the alleged defamation damaged plaintiff’s economic circumstances did not fairly inform defendants of the scope of plaintiff’s libel per quod claim. Appeal by plaintiff from order entered 3 February 2011 by Judge Robert F. Floyd, Jr., in Robeson County Superior Court. Heard in the Court of Appeals 27 October 2011. Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner, and Behan Law, by Kathleen A. Behan, for the plaintiff Littler Mendelson, P.C., by Jerry H. Walters, Jr., and Julie K. Adams, for defendant, The Atlantic Group, Inc. d/b/a/ DZ Atlantic. Ogletree, Deakins, Nash, Smoak & Stewart, P.G., by Robert M. Bisanar and Michael L. Wade, Jr., for defendant, Duke Energy Carolinas, LLC. THIGPEN, Judge. 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 Plaintiffs 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 Plaintiffs complaint pursuant to Defendants’ Rule 12(b)(6) motion. We affirm the order of the trial court. I: Factual and Procedural Background 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 07F .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. Plaintiff brought the memorandum to the attention of his supervisors and proposed a process by which the operators could be trained and certified in a way which would not interfere with the operations of the plant during its busiest times. Plaintiff did not receive a response to his proposal. Plaintiff, however, continued to raise the issue of certification on a weekly basis, but Plaintiffs proposal and concerns were not addressed. 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 07F .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.” Plaintiff was told that since he was no longer a supervisor, “the issue of the certification was not his to address.” 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 [Plaintiffs] badge.” However, at Plaintiffs, request, Henline later corrected Plaintiffs 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 Plaintiffs 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 time-card[.]” Defendant Duke Energy reported Plaintiff to the Nuclear Regulatory Commission, barring Plaintiff from “unescorted access to facilities around the nation.” Plaintiff alleges this “per manently 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 Plaintiffs 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 Plaintiffs complaint on 20 October 2010. On 17 November 2010, Plaintiff filed a motion to amend the complaint. In Plaintiffs 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 Duke Energy filed an additional N.C. Gen Stat § 1A-1, 12(b)(6) motion to dismiss on 28 November 2010. 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. II: Standard of Review “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. III: Motion to Dismiss In Plaintiffs 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 Plaintiffs 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 Plaintiffs complaint. A: Retaliatory Employment Discrimination Act Plaintiff first contends the trial court erred by dismissing Plaintiffs 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 the employee exercised his rights under N.C. Gen. Stat. § 95-241(a).” Id. Plaintiff contends he exercised his rights as listed under N.C. Gen. Stat. § 95-241 (a) by “initiating] 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.” Plaintiffs complaint alleges the following with regard to Plaintiffs initiation of an inquiry pursuant to N.C. Gen. Stat. § 95-241(a): 34. Defendants’ decision to terminate [Plaintiffs] employment was in retaliation for his making complaints and providing information with regard .to an ongoing workplace situation with regard to Occupational Safety and Health issues affecting nuclear power facilities in North Carolina operated by Defendants, including but not limited to the McGuire Nuclear Facility. 35. By communicating with his supervisors on numerous occasions concerning safety and health and training issues, and with the Duke Ethics Hotline, [Plaintiff] exercised his rights as listed under 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. Id. We find the logic of several decisions of federal courts persuasive authority as to the definition of initiating an inquiry. See State v. McDowell, 310 N.C. 61, 74, 310 S.E.2d 301, 310 (1984) (stating that federal decisions, with the exception of the United States Supreme Court, are not binding upon this Court; however, State courts should treat “decisions of the United States Supreme Court as binding and accordf] to decisions of lower federal courts such persuasiveness as these decisions might reasonably command”); see also Signature Dev., LLC v. Sandler Commer. at Union, L.L.C., _ N.C. App. _, _, 701 S.E.2d 300, 307 (2010) (stating; “[a]lthough, as an unpublished case, [it] does not establish binding legal precedent, we are persuaded by [the] Court’s reasoning in that case”). 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 U.S. Dist. LEXIS 63901, 15-16 (2008). The Court stated: As noted, REDA states that no person shall take any retaliatory action against an employee because the employee “file[s] a claim or complaint, initiate[s] any inquiry, investigation, inspection, proceeding or other action, or testifies] orprovidefs] information to any person with respect to . . . [OSHANC].” N.C. GEN. STAT. § 95-241(a) (emphasis added). By its plain language, it is clear that REDA does not limit protected activities to the sole act of filing a formal claim under OSHANC. At the other end of the-spectrum, however, courts have held that merely talking to an internal supervisor about potential safety concerns is not a “protected activity” under REDA. 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] [i]s 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 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 complained to their employers about unsafe working conditions” and noting that the plaintiff “did not initiate a complaint with the Occupational Safety and Health Review Commission or threaten to initiate any such complaint”); Whitings v. Wolfson Casing Corp., 173 N.C. App. 218, 222, 618 S.E.2d 750, 753 (2005) (holding the plaintiff’s act of requesting that her employer pay for a medical evaluation of a work-related inj
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