LINDA GUTHRIE, Plaintiff v. RAYMOND CONROY and CLEGG'S TERMITE AND PEST CONTROL, INC., Defendants
Case Details
- Citation
- 152 N.C. App. 15
- Judge(s)
- Judges WYNN and McCULLOUGH concur.
- Procedural Posture — the stage the case had reached
- appeal
- State
- North Carolina
- Circuit
- 4th Circuit
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
The court affirmed summary judgment for defendants on plaintiff's claims for intentional infliction of emotional distress, negligent infliction of emotional distress, and negligent retention and supervision, but reversed and remanded on the civil assault claim against defendant Conroy where genuine issues of material fact existed regarding ratification.
Excerpt
LINDA GUTHRIE, Plaintiff v. RAYMOND CONROY and CLEGG’S TERMITE AND PEST CONTROL, INC., Defendants No. COA01-740 (Filed 6 August 2002) 1. Appeal and Error— partial summary judgment — certification — phrase “final judgment” — not necessary Plaintiff’s claims were subject to dismissal (but were heard in the discretion of the Court of Appeals) where plaintiff appealed more than 30 days from entry of a partial summary judgment for defendants. Although plaintiff’s notice of appeal was within 30 days of an amendment that added “final judgment” to the order, whether an order is final is determined by the resolution of the claim rather than the phrase “final judgment.” 2. Emotional Distress— intentional inflection — sexual harassment — behavior juvenile but not extreme The trial court did not err by granting summary judgment for defendants on a claim for intentional infliction of emotional distress (IIED) involving alleged workplace sexual harassment where the alleged behavior was annoyingly juvenile, obnoxious, and offensive, but not outrageous and extreme. 3. Emotional Distress— negligent inflection — sexual harassment by co-worker — no breach of duty The trial court did not err by granting summary judgment for defendants on plaintiff’s claim for negligent infliction of emotional distress (NIED) arising from alleged workplace sexual harassment where plaintiff did not allege a duty owed to her by the co-employee who was allegedly harassing her. While NIED does not require extreme and outrageous conduct, negligence involves the breach of a duty. 4. Employer and Employee— negligent retention and supervision — underlying tort The trial court did not err by granting summary judgment for defendant employer on a claim for negligent retention and supervision of an employee accused of sexually harassing plaintiff where there was no viable tort claim against the employee. 5. Employer and Employee— civil assault — sexual harassment — ratification The trial court erred in a sexual harassment action by granting summary judgment for the employer on a claim for civil assault where the evidence was sufficient to create a genuine issue of material fact regarding ratification. Appeal by plaintiff from order entered 14 March 2001 by Judge Steve A. Balog in Orange County Superior Court. Heard in the Court 6f Appeals 17 April 2002. Patterson, Harkavy, & Lawrence, L.L.P., by Martha A. Geer, and Davis, Murrelle & Lyles, by Edward L. Murrelle, for plaintiff - appellant. Kathryn P. Fagan, for defendant-appellants. BIGGS, Judge. Plaintiff (Linda Guthrie) appeals from a summary judgment order entered 14 March 2001 in favor of defendants (Raymond Conroy and Clegg’s Termite and Pest Control, Inc.). For the reasons that follow, we affirm in part and reverse in part. Plaintiff was employed in 1998 by defendant Clegg’s Termite and Pest, Inc. (Clegg’s), as a secretary. Defendant Conroy was plaintiff’s co-employee, and worked for Clegg’s as a salesman and pesticide technician. On 17 March 1999, plaintiff submitted her resignation from Clegg’s, in a letter stating that her departure was due to her medical problems, the side effects of various medications, and her feeling that it was unfair for her co-workers to have to “put up with [her] condition.” Plaintiff suffered from severe rheumatoid arthritis for which she took numerous medications, some with adverse side effects. However, plaintiff was persuaded not to leave and remained at Clegg’s for two more months. On 20 May 1999, plaintiff submitted a second resignation letter, this one stating that she was quitting in order to escape sexual harassment by defendant Conroy. She then ceased working for defendant Clegg’s. On 5 October 1999, plaintiff filed suit against defendants, alleging (1) intentional infliction of emotional distress (IIED) by both defendants; (2) negligent infliction of emotional distress (NIED) by both defendants; (3) negligent retention and supervision of Conroy by defendant Clegg’s; and (4) civil assault by both defendants. Plaintiff sought compensatory and punitive damages, and attorneys’ fees. Defendants filed a summary judgment motion on 26 September 2000, which was heard in November, 2000. On 13 November 2000, the trial court issued an order granting partial summary judgment; the court dismissed all of plaintiff’s claims, except for her civil assault action against defendant Conroy. Plaintiff appeals from the grant of summary judgment in favor of defendants. Motion to Dismiss Appeal On 7 March 2001, plaintiff filed a motion “pursuant to rule 54(b) and rule 60,” asking the trial court to amend its 13 November 2000 summary judgment order by adding the phrase “final judgment.” Plaintiff asserted that without that phrase, the order was interlocutory and not subject to immediate appeal. On 9 March 2001, the trial court entered an amended summary judgment order making the same rulings as its 13 November order, and adding the phrase “final judgment.” Plaintiff appealed from the amended order on 20 March 2001. On 15 June 2001, defendants filed a motion in this Court seeking dismissal of plaintiff’s appeal. Defendants argue that the 13 November 2000 summary judgment order was immediately appeal-able, and that plaintiff was required by N.C.R. App. P. 3(c) to give notice of appeal within 30 days of its entry. We agree. We note initially that plaintiff has argued that, by failing to appeal from the amended order of 9 March 2001, or to file a cross-assignment of error, defendants waived the right to move for dismissal of plaintiff’s appeal. However, defendant’s motion for dismissal presents a question of jurisdiction, which may be addressed by this Court at any time, sua sponte, regardless of whether defendants properly preserved it for appellate review. Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d 431, 433 (1980) (“if an appealing party has no right of appeal, an appellate court on its own motion should dismiss the appeal even though the question . . . has not been raised by the parties themselves”). The summary judgment order from which plaintiff appeals is interlocutory, because it leaves unresolved plaintiff’s claim against Conroy for civil assault. Creech v. Ranmar Props., 146 N.C. App. 97, 551 S.E.2d 224 (2001) (order that leaves claims unresolved is interlocutory). An interlocutory order is subject to immediate appeal only under two circumstances: where the order is final as to some claims or parties, and the trial court certifies pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure that there is no just reason to delay the appeal, see Alford v. Catalytica Pharmaceuticals, Inc., 150 N.C. App. 489, 564 S.E.2d 267 (2002), or where the order deprives the appellant of a substantial right that would be lost unless immediately reviewed, see Turner v. Norfolk S. Corp., 137 N.C. App. 138, 141, 526 S.E.2d 666, 669 (2000). Thus, if the trial court enters a judgment “which fully terminates” a claim or claims as to “fewer than all the parties,” Rule 54(b) allows the trial court to “release it for immediate appeal before the litigation is complete as to all claims or all parties” by certifying that there is “no just reason for delay’’Industries, Inc. v. Insurance Co., 296 N.C. 486, 490, 251 S.E.2d 443, 446-47 (1979). This is the mechanism by which the trial court expresses its determination that a final judgment should be subject to immediate appeal. Oestreicher v. Stores, 290 N.C. 118, 127, 225 S.E.2d 797, 803 (1976) (citation omitted) (trial court functions as a “dispatcher” and determines “the appropriate time when each ‘final decision’ upon ‘one or more but less than all’ of the claims in a multiple claims action is ready for appeal”). The trial court’s 13 November 2000 summary judgment order states that “pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure, the undersigned Judge hereby finds that there is no just reason for delay in the plaintiff’s taking an appeal from this Order.” Plaintiff cites no cases holding that the trial court is also required to use the phrase “final judgment,” and we find none. It is the resolution of a claim, rather than the phrase “final judgment” that determines whether an order is ‘final.’ Industries, Inc. v. Insurance Co., 296 N.C. 486, 491, 251 S.E.2d 443, 447 (1979) (“That the trial court declared it to be a final, declaratory judgment does not make it so.”). Nor does N.C.G.S. § 1A-1, Rule 54 require the phrase “final judgment” to be included in a trial court’s certification that an order resolving one or more claims is appropriate for immediate appeal: (a) Definition. A judgment is either interlocutory or the final determination of the rights of the parties. (b) . . . When more than one claim for relief is presented in an action, ... or when multiple parties are involved, the court may enter a final judgment as to one or more but fewer than all of the claims or parties only if there is no just reason for delay and it is so determined in the judgment. Such judgment shall then be subject to review by appeal[.] N.C.G.S. § 1A-1, Rule 54(a) and (b). The 13 November 2000 summary judgment order was a final judgment as to all of plaintiffs claims against Clegg’s, and on all of her claims against Conroy, except for civil assault. Further, the trial court certified, pursuant to N.C.G.S. § 1A-1, 54(b) that there was “no just reason for delay,” of an appeal from the order. We conclude, therefore, that the order was properly certified for immediate appeal. Because the 13 November 2000 order was subject to appeal, plaintiff was required by N.C.R. App. P. 3(c)(1) to file notice of appeal within 30 days of entry of judgment, or no later than 13 December 2000. Plaintiffs notice of appeal, filed 20 March 2001, or 127 days after entry of the 13 November 2000 summary judgment order, was untimely, and subjects her appeal to dismissal. Herring v. Branch Banking & Trust Co., 108 N.C. App. 780, 424 S.E.2d 925 (1993). However, this Court will exercise its discretion and grant certiorari to review plaintiffs claims on their merits, pursuant to N.C.R. App. P. 21 (2001). See Anderson v. Hollifield, 345 N.C. 480, 482, 480 S.E.2d 661, 663 (1997) (“Rule 21(a)(1) gives an appellate court the authority to review the merits of an appeal by certiorari even if the party has failed to file notice of appeal in a timely manner”). Standard of Review Preliminarily, we note that plaintiff characterizes her suit as “a conventional sexual harassment case;” compares the conduct at issue to that “in other sexual harassment cases;” and asserts that defendant Conroy’s alleged conduct “constitutes classic sexual harassment that should not be tolerated in any workplace.” We therefore find it necessary to clarify the nature of the matters before us on review. We recognize that the right to be free of sexual harassment in the workplace is addressed in certain federal statutes, e.g., Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (2001) (prohibiting discrimination in the “terms, conditions, or privileges of employment” on the basis of an employee’s sex), and is implicated in our State declaration of public policy, N.C.G.S. § 143-422.2 (“It is the public policy of this State to protect. . . the right... of all persons to seek, obtain and hold employment without discrimination or abridgement on account of . . . sex”). A civil suit may be brought to redress, e.g., an alleged violation of Title VII, see Brown v. Henderson, 155 F.Supp.2d 502 (M.D.N.C. 2000) (setting out elements of Title VII claim of hostile work environment caused by sexual harassment); Russell v. Buchanan, 129 N.C. App. 519, 500 S.E.2d 728, disc. review denied, 348 N.C. 501, 510 S.E.2d 655 (1998) (employee suit alleging violation of Title VII and N.C. public policy). Such claims focus on the impact of alleged behavior on the workplace, and require proof that the sexual harassment was “so severe or pervasive as to alter the conditions of [the victim’s] employment and create an abusive working environment.” Clark County School Dist. v. Breeden, 532 U.S. 268, 270, 149 L. Ed. 2d 509, 513 (2001) (citation omitted). However, the plaintiff in the present case does not allege violation of these or other similar statutes. Rather, she has brought common law tort claims for personal injury caused by IIED and NIED. The elements and legal prerequisites of her claims are quite different from those of a Title VII claim. For example, as this is not a statutory “sexual harassment case,” plaintiff need not exhaust administrative remedies before bringing her action. Brooks v. Southern Nat’l Corp., 131 N.C. App. 80, 86, 505 S.E.2d 306, 310 (1998), disc. review denied, 350 N.C. 592, 536 S.E.2d 626 (1999) (plaintiff not required to exhaust administrative remedies where alleged common law torts are not subject to administrative review). Further, plaintiff’s claims of IIED and NIED present issues as to whether the named defendants committed certain acts against this plaintiff; however, plaintiff’s claims do not involve a generalized assessment of acceptable workplace behavior, nor an analysis of the “workplace environment.” In short, plaintiff has brought a common law tort action alleging personal injury, which we will treat as such. Plaintiff appeals from the trial court’s grant of summary judgment. Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C.G.S. § 1A-1, 56(c) (2001). “[T]he party moving for summary judgment ultimately has the burden of establishing the lack of any triable issue of fact.” Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985) (citation omitted). However, “the real purpose of summary judgment is to go beyond or to pierce the pleadings and determine whether there is a genuine issue of material fact.” Singleton v. Stewart, 280 N.C. 460, 464, 186 S.E.2d 400, 403 (1972). In response to a motion for summary judgment, the non-movant must “produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial.” Gaunt v. Pittaway, 139 N.C. App. 778, 784-85, 534 S.E.2d 660, 664 (2000). On appeal, this Court’s standard of review involves a two-step determination of whether (1) the relevant evidence establishes the absence of a genuine issue as to any material fact, and (2) either party is entitled to judgment as a matter of law. Von Viczay v. Thoms, 140 N.C. App. 737, 738, 538 S.E.2d 629, 630 (2000), aff'd, 353 N.C. 445, 545 S.E.2d 210 (2001) (citations omitted). Moreover, “the evidence presented by the parties must be viewed in the light most favorable to the non-movant.” Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998). Intentional Infliction of Emotional Distress Plaintiff argues first that the trial court erred in its grant of summary judgment for defendants on plaintiffs claim of intentional infliction of emotional distress (IIED). We disagree. The essential elements of IIED are “(1) extreme and outrageous conduct by the defendant (2) which is intended to and does in fact cause (3) severe emotional distress.” Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992) (citation omitted). “The determination of whether the conduct alleged was intentional and was extreme and outrageous enough to support such an action is a question of law for the trial judge,” Lenins v. K-Mart Corp., 98 N.C. App. 590, 599, 391 S.E.2d 843, 848 (1990), and, thus, our review is conducted de novo, see Falk Integrated Tech., Inc. v. Stack, 132 N.C. App. 807, 809, 513 S.E.2d 572, 574 (1999) (upon challenge to summary judgment order, trial court’s “alleged errors of law are subject to de novo review”). “A claim for intentional infliction of emotional distress exists ‘when a defendant’s conduct exceeds all bounds usually tolerated by decent society[.]’ ” Watson v. Dixon, 130 N.C. App. 47, 52-53, 502 S.E.2d 15, 19-20 (1998), on reh’g, 132 N.C. App. 329, 511 S.E.2d 37 (1999), aff'd, 352 N.C. 343, 532 S.E.2d 175 (2000) (quoting Stanback v. Stanback, 297 N.C. 181, 196, 254 S.E.2d 611, 622 (1979)) (defendant engaged in extreme and outrageous conduct when he “frightened and humiliated [plaintiff] with cruel practical jokes, which escalated to obscene comments and behavior of a sexual nature,... finally culminating in veiled threats to her personal safety”). Conduct is extreme and outrageous when it is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Briggs v. Rosenthal, 73 N.C. App. 672, 677, 327 S.E.2d 308, 311, cert. denied, 314 N.C. 114, 332 S.E.2d 479 (1985). Plaintiff cites Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 340 S.E.2d 116, disc. review denied, 317 N.C. 334, 346 S.E.2d 140 (1986), for her assertion that “North Carolina courts have consistently held that sexual harassment constitutes extreme and outrageous conduct intended to cause emotional distress.” However, Hogan held that a claim for intentional infliction of emotional distress might in appropriate factual circumstances be based upon behavior of a sexual nature. The Court concluded that one of the Hogan plaintiffs was entitled to submit her IIED claim to the jury based upon her allegations that [defendant] made sexually suggestive remarks to her while she was working, coaxing her to have sex with him and telling her that he wanted to “take” her. He would brush up against her, rub his penis against her buttocks and touch her buttocks with his hands. When she refused his advances, he screamed profane names at her, threatened her with bodily injury, and on one occasion, advanced toward her with a knife and slammed it down on a table in front of her. Id. at 490, 340 S.E.2d at 121. The Court upheld summary judgment against the two other plaintiffs, on the basis that the defendant’s alleged behavior towards those plaintiffs was not “outrageous and extreme.” Id. at 493-94, 340 S.E.2d at 123. Thus, while a claim of IIED may be based upon allegations of sexually harassing behavior, “extreme and outrageous behavior” must be more than “mere insults, indignities, and threats.” Further, “plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate or unkind.” Hogan, id. See e.g., Brown v. Burlington Industries, Inc., 93 N.C. App. 431, 378 S.E.2d 232, disc. review allowed, 325 N.C. 270, 384 S.E.2d 513, (1989), review dismissed as improvidently granted, 326 N.C. 356, 388 S.E.2d 769 (1990) (prima facie case of IIED shown where defendant asked plaintiff “how tight [her vagina] was”; indicated that he wanted plaintiffs “long legs wrapped around his body”; grabbed his penis; implied that if plaintiff would have sex with him, [he] would place [her] in another position), and McLain v. Taco Bell Corp., 137 N.C. App. 179, 181, 527 S.E.2d 712, 715, disc. review denied, 352 N.C. 357, 544 S.E.2d 563 (2000) (defendant “physically assaulted plaintiff, . . . [demanding] sexual relations . . . [and] began masturbating, ultimately ejaculating upon plaintiffs clothing”); compare with Wilson v. Bellamy, 105 N.C. App. 446, 468, 414 S.E.2d 347, 359, disc. review denied, 331 N.C. 558, 418 S.E.2d 668 (1992) (rejecting IIED claim where “defendants engaged in kissing and heavy petting with the plaintiff in the presence of others” while plaintiff was intoxicated to the point of unconsciousness). “Because the forecast of evidence as to the factual basis of each [claim of IIED] is unique, each claim must be decided on its own merits.” Denning-Boyles v. WCES, I
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