Retaliation Cases

Civil Rights Commission—Filing of an unlawful discriminatory charge with Ohio Civil Rights Commission under R.C. 4112.05(B)(1) does not preclude person alleging handicap discrimination from instituting an independent civil action under R.C. 4112.99.

Patricia A. Weber vs. Community Teamwork, Inc., & others. Middlesex. April 5, 2001. August 13, 2001. Present: Marshall, C.J., Greaney, Spina, Sosman, & Cordy, JJ. Anti-Discrimination Law, Termination of employment, Prima facie case, Burden of proof. Employment, Discrimination, Termination, Retaliation. Contract, Employment. Unlawful Interference. Malice. In an action by the plaintiff alleging unlawful discrimination in her employer’s failure to promote her, the judge correctly concluded that the plaintiff had established a prima facie case of discrimination, but had not met her burden of proving unlawful discrimination because there was evidence to support some of her employer’s “legitimate, nondiscriminatory” reasons for choosing a male applicant over the plaintiff. [766-769] In an action by the plaintiff alleging unlawful discrimination in her employer’s termination of her employment, the judge correctly concluded that the plaintiff had established a prima facie case of discrimination; however, the record did not support the judge’s conclusions that the defendants’ proffered reasons for terminating the plaintiff were “wholly lacking” in evidentiary support and in credibility; moreover, while the judge made the requisite findings that the plaintiff was a member of a protected class and was harmed by the termination, she did not determine whether the defendants harbored any discriminatory animus and, if so, whether that animus was the determinative cause in bringing about the plaintiff’s termination, and consequently, this court remanded the case so that the judge could make findings and reach conclusions on those two essential elements. [769-778] In an action by the plaintiff alleging breach of contract in her employer’s termination of her employment, the judge erred in concluding that a progressive discipline policy, implemented during the tenure of the plaintiff’s predecessor, constituted an implied employment contract between the plaintiff and her employer that the employer breached, where the policy was not binding on the employer because it was not submitted to or approved by its board; where, by its own terms, the policy did not apply to disciplinary action taken by the employer’s executive director against a department head such as the plaintiff; and where the plaintiff failed to establish that she relied on the terms of the policy as a condition of her continuing employment. [778-781] This court vacated a ruling by a Superior Court judge that a nonprofit corporation’s executive director had unlawfully interfered with the plaintiff employee’s advantageous relations with her employer, and the plaintiff’s claim was remanded for further findings with regard to the requirement that the plaintiff show, as to “improper motive or means,” that the “controlling factor” in the alleged interference was “actual” malice. [781-783] In an action arising out of the plaintiff’s termination from her employment, the judge erred in allowing the plaintiff to amend her complaint to state a claim for retaliatory discrimination under G. L. c. 151B, § 4 (4), raised for the first time after the close of the evidence, where, since the plaintiff asserted her claim for retaliatory discrimination nearly four years after the last allegedly retaliatory act was committed, the retaliation claim was barred by the three-year statute of limitations provided by G. L. c. 151B, § 9, and where, since her claim did not “arise out of the conduct, transaction, or occurrence” she alleged in her earlier pleadings, Mass. R. Civ. R 15 (c), it did not relate back to her earlier pleadings. [783-786] Civil action commenced in the Superior Court Department on December 10, 1993. The case was heard by Sandra L. Hamlin, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Cheryl M. Cronin (Douglas Phillips with her) for the defendants. Frederick T. Golder (Elisabeth M. LeBrun & Jeffrey R. Mazer with him) for the plaintiff. The following submitted briefs for amici curiae: Sally L. Adams, Daryl J. Lapp, & Steven L. Schreckinger for Association of Independent Colleges and Universities in Massachusetts. Robert S. Mantell, Jonathan J. Margolis, & James E. Fitzgerald for Massachusetts Employment Lawyers Association. Thomas H. Conway, Jr., and James L. Canavan, Jr. Marshall, C.J. In early 1992, Patricia Weber, a longtime employee of Community Teamwork, Inc. (CTI), applied for, but was not promoted to, the position of CTI’s executive director. Some months later she was terminated by CTI’s new executive director, James L. Canavan, Jr. She brought suit against CTI, Canavan, and Thomas H. Conway, Jr., a member of CTI’s board of directors, alleging discrimination on the basis of sex and sexual orientation, breach of contract, unlawful interference with contractual relations, retaliatory discrimination, wrongful termination in violation of public policy, and a violation of the Massachusetts equal rights statute, G. L. c. 93, § 102. After a jury-waived trial, a judge in the Superior Court rejected Weber’s claims that CTI’s failure to promote her was discriminatory or that her termination from CTI was a violation of any public policy. The judge ruled, however, that Weber’s termination constituted discrimination, breach of contract, unlawful interference with contractual relations, and retaliatory discrimination. She awarded Weber back pay damages and benefits in the amount of $133,704, fifteen years of front pay damages in the amount of $546,480, and emotional distress damages of $100,000. The judge also awarded Weber her attorney’s fees in an unspecified amount. The parties filed cross appeals, and we transferred the case to this court on our own motion. We affirm the judge’s rulings that CTI’s failure to promote Weber was lawful. We vacate the remaining aspects of the judgment challenged by the defendants, and remand the case to the Superior Court for additional findings and conclusions by the judge on Weber’s claims of discrimination and unlawful interference with contractual relations. I We summarize the procedural history because it is relevant to some of the issues on appeal. Weber first filed her charges with the Massachusetts Commission Against Discrimination (MCAD), alleging that all three defendants had discriminated against her on the basis of her sex by failing to promote her to the position of executive director of CTI in October, 1992, and by terminating her without warning in March, 1993. See G. L. c. 151B, § 5. Weber, who is a lesbian, subsequently amended her charges to include claims of discrimination on the basis of sexual orientation. Before the MCAD acted on her charges, she brought suit in Superior Court pursuant to G. L. c. 151B, §§ 4, 9, adding claims for breach of contract, intentional interference with contractual relations, and a violation of the Massachusetts equal rights statute, G. L. c. 93, § 102. The trial commenced in February, 1997. At the close of Weber’s evidence the judge allowed the defendants’ motion to dismiss Weber’s equal rights claim, G. L. c. 93, § 102, but denied their motion in all other respects. She later denied their motion for a directed verdict. On the final day of trial, and immediately prior to closing arguments, Weber moved to amend her complaint to add claims that her termination violated public policy and constituted retaliatory discrimination in violation of G. L. c. 151B, § 4 (4). Over the defendants’ objection, the judge allowed her motion. The judge subsequently entered findings of fact and conclusions of law, which we shall summarize in greater detail below. On appeal Weber claims that it was error for the judge to conclude that CTI’s failure to promote her to the position of CTI’s executive director did not constitute unlawful discrimination in violation of G. L. c. 151B, and to deny her punitive damages on her retaliation claim. The defendants challenge the judge’s rulings that (1) Weber’s termination from CTI constituted unlawful employment discrimination; (2) they breached Weber’s employment contract with CTI; and (3) Canavan had unlawfully interfered with Weber’s advantageous relationship with CTI. See note 4, supra. They also challenge the judge’s ruling permitting Weber to amend her complaint to add a claim for retaliatory discrimination, and her subsequent ruling that the defendants had in fact engaged in retaliatory discrimination. As to damages, the defendants challenge the award to Weber of fifteen years of front pay under G. L. c. 151B, and argue that any damages awarded for violations of that statute by the defendants should, in any event, be capped at $20,000 pursuant to G. L. c. 231, § 85K. Finally, they challenge the award to Weber of attorney’s fees for so much of her G. L. c. 151B claim on which she did not prevail. n Before turning to consider the respective arguments, we summarize the chronology of Weber’s career at CTI because it provides helpful context to her claims. Weber was hired by CTI in 1975 as an assistant director of family day care. In the succeeding twelve years, Weber assumed steadily increasing program development and supervisory responsibilities, serving from 1976 to 1978 as an assistant director of the family life services department, and from 1978 to 1987 as that department’s director. In 1987, she was named associate director of programs, in which capacity she reported directly to CTI’s longtime executive director, Leo Desjarlais, and became the direct supervisor of CTI’s eight department directors, including the director of its housing and community development department. Sometime thereafter, Weber discovered that Desjarlais was mishandling CTI’s funds. She triggered an investigation by the office of the Auditor of the Commonwealth, which ultimately led to Desjarlais’s discharge from CTI in 1991. In late 1991, following Desjarlais’s discharge, the board appointed the defendant Conway, then the president of CTI’s board of directors, as CTI’s acting executive director. Fearing that her position as associate director of programs was in jeopardy with the impending appointment of a new executive director, and although she herself became a candidate for that position, Weber asked Conway to appoint her as the director of CTI’s housing and community development department. Weber had not previously worked in the housing department, but Conway agreed, and in February, 1992, Weber assumed that position. Shortly thereafter, she applied for the position of executive director, but an outside candidate, Canavan, was the successful applicant. Ill We first address Weber’s argument that the judge erred by ruling that CTI’s failure to promote her to the position of executive director did not constitute unlawful discrimination. We recount the judge’s findings relevant to this claim. From 1987 to 1992, in her tenure as associate director of CTI, Weber served “in all but title” as CTI’s executive director. The judge found that Weber was a “hardworking, responsible, talented, caring and dedicated employee with excellent administrative ability,” who consistently received “excellent” performance reviews. When it became necessary to replace Desjarlais, the board advertised the position and ultimately hired Canavan, who served at the time as the director of development and planning at an agency similar to CTI. Canavan previously had worked from 1987 to 1990 as an assistant energy planner, an assistant director of the housing services program, and finally as the acting director of the office of community and economic development within the Executive Office of Communities and Development (EOCD). EOCD provides housing subsidies to low-income persons and ensures that subsidized housing units comply with Federal and State regulations. It had contracted with CTI’s department of housing and community development to run various low-income housing programs. EOCD was in fact one of CTI’s primary sources of funding. There was extensive testimony that, in the wake of Desjarlais’s mismanagement, CTI was in a financial crisis, its staff lacked morale and strong leadership, and it had lost credibility with EOCD. There was unrebutted testimony that CTI’s board believed that new leadership by an outsider, but one who “had the experience and the knowledge of . . . what [CTI’s] kind of agency was about,” was essential to meeting CTI’s goals of improving its fractured relationship with EOCD and remedying its fiscal crisis. CTI explained at trial that these were the reasons it appointed Canavan as CTI’s new executive director. The judge found that, based on her resume, background, and work experience, Weber was “eminently more qualified” than Canavan to assume the position of CTI’s executive director. She also found that, before Canavan was hired, a “sexist attitude prevailed at CTI” and that it was “common knowledge” throughout the organization that Weber is a lesbian. The judge then applied the analytical framework of Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 440-446 (1995). She concluded that Weber had established a prima facie case of discrimination, but had not met her burden of proving unlawful discrimination because there was evidence to support some of CTI’s “legitimate, nondiscriminatory” reasons for choosing Canavan over Weber. Weber now argues that, because the judge found that she was “eminently more qualified” than Canavan and that a “sexist attitude prevailed” at CTI, the judge should have concluded that the defendants’ asserted reason for hiring Canavan was a pretext. See id. at 444-446. The judge’s ruling was correct. Weber’s contention rests on the flawed supposition that the findings on which she relies precluded a finding that CTI’s asserted reasons for hiring Canavan were in fact its reasons for hiring him. There was sufficient evidence that Canavan’s “outsider” status and his prior work experience and previous dealings with EOCD were sound reasons for CTI to prefer him over a well qualified internal candidate, even one “eminently more qualified.” While it would have been preferable for the judge to make explicit what is implied by her findings, namely, that Weber and Canavan were both qualified for the position of executive director but were qualified in different ways, she did not err in concluding that Weber did not meet her burden of proving that the defendants’ failure to promote her constituted unlawful discrimination. Even if Weber had succeeded in persuading the judge that CTI’s asserted explanation for hiring Canavan was not the reason it actually hired him, a point not argued by the defendants, the judge would have been permitted to conclude that the failure to promote Weber did not amount to unlawful discrimination. See Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 118 (2000) (fact that employer’s asserted reason is pretext permits, but does not require, an inference that there was unlawful discrimination). The judge would have been entitled to weigh evidence indicating that the defendants had no discriminatory motive in hiring Canavan, or that they had some other lawful explanation for choosing Canavan over Weber that had been advanced and was supported by the evidence. See id. IV We turn next to the question of the judge’s ruling that Weber’s termination from CTI, in contrast to CTI’s failure to promote her to the position of executive director, did constitute unlawful employment discrimination. We summarize the judge’s findings on this aspect of the case, supplementing them where appropriate with uncontested facts in evidence. By early 1992, when Weber was appointed the director of CTI’s housing department, that department faced pervasive problems. For many years previously, Desjarlais had diverted funds from the department. There was also a perception that Desjarlais had hired individuals in that department based on favoritism rather than competence. By the time Desjarlais’s employment was terminated, the department had an operating deficit of approximately $150,000, and the housing staff were beset by poor morale. In short, the department was in crisis. Because subsidies provided by CTI to low-income tenants were funded by EOCD, CTI was subject to EOCD’s regulatory oversight, and there was evidence that EOCD had serious concerns about the management of CTI’s housing programs. CTI’s housing department suffered from a poor “lease-up rate.” Worse, CTI was subsidizing many housing units of marginal quality, and its “maintenance failure” rate was high. CTI’s own inspections confirmed the department’s poor record. The judge found that, in her first year as director, Weber’s “hard work” and “good management” made a difference. But see note 15, supra. Within eleven months, the department’s operating deficit decreased from $150,500 to $115,534; within three months, the “lease-up” rate of low-income housing units subsidized by CTI rose to 99%. The “staff failure” rate was also reduced under Weber’s “hands-on management” and her improvements in the housing inspection process. Despite these improvements, it was undisputed that EOCD remained deeply concerned about CTI’s housing program. According to Canavan, CTI’s new executive director, in early January, 1993, EOCD officials “were breathing down our necks” to take swift action to improve the inspections of, and conditions in, certain low-income housing developments subsidized by CU. On February 2, 1993, Weber, Canavan, and a third CTI employee met with three senior officials at EOCD. The EOCD officials expressed their serious concerns about the continuing inadequacy of CTI’s housing inspections, the poor maintenance of housing units subsidized by CTI, and the “overall history of mismanagement.” There was uncontroverted evidence that at this meeting the deputy secretary of EOCD threatened to terminate all of CTI’s substantial housing funding if it did not take aggressive steps by June, 1993, to correct the problems in the housing department. There was also unrebutted testimony that, during the February, 1993, meeting, a senior EOCD official instructed CTI to “fire” Darryl Courtnay, Weber’s deputy in the housing department. A senior EOCD official had also told Weber that she was “upset" with her. The threatened loss of EOCD’s housing subsidies was serious; the EOCD subsidies comprised one-third of CTI’s budget. There was uncontradicted evidence that CTI’s housing department depended entirely on EOCD for its funding. The loss of such significant funds would also have necessitated a number of lay-offs of CTI employees. While Weber had made improvements in the department, Canavan was left with the impression from that critical meeting that, to “save” the housing program, Darryl Courtnay and Weber “had to go.” On March 16, 1993, one week after Weber and Canavan last met to discuss progress in CTI’s housing department, Canavan called Weber to his office, and in the presence of several CTI board members, offered her the option of resigning or being terminated. Weber was given no explanation for this action. Weber chose to be terminated. That same day Canavan offered the same choice to Darryl Courtnay. Courtnay resigned. Several weeks later Canavan appointed another woman to fill the position vacated by Weber. Explaining her decision that Weber’s termination constituted unlawful discrimination, the judge pointed to the fact that, in the wake of the critical EOCD meeting in February, 1993, Canavan did not give Weber any “specific directions” about steps she should take to remedy the problems cited by EOCD. The judge also found that, in spite of Weber’s persistent efforts to hire more inspectors, Canavan “refused to move” on improving the staff failure rate, “consistently stalled on responding to her recommendations,” and “stymied her efforts to rectify the situation.” The judge found that Canavan had not told Weber that he was dissatisfied with her performance, nor ha

AUDIE E. TREXLER, Plaintiff v. NORFOLK SOUTHERN RAILWAY COMPANY, a corporation; THOMAS L. LYNCH; JAMES H. FORREST; C.L. CRABTREE; and NORFOLK SOUTHERN CORPORATION, a corporation, Defendants No. COA00-346 (Filed 7 August 2001) Employer and Employee— wrongful discharge claim — collective bargaining contract The trial court did not err by granting summary judgment for defendants on a wrongful discharge claim by a railroad employee subject to a collective bargaining agreement which provided that he could not be removed or disciplined except for just and sufficient cause after a preliminary hearing. The proper claim for this plaintiff was breach of contract. On writ of certiorari to review order entered 16 March 1999 by Judge Michael E. Beale in Rowan County Superior Court. Heard in the Court of Appeals 24 January 2001. Wallace & Graham, by Richard Huffman, and C. Marshall Friedman, P.C., by Kenneth E. Rudd, for plaintiff-appellant. Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Allison M. Grimm, and Gibbes & Burton, L.L.C., by Frank H. Gibbes, III, for defendant-appellees. JOHN, Judge. Plaintiff Audie E. Trexler seeks review of the trial court’s entry of summary judgment in favor of defendants Norfolk Southern Railway Company, Thomas L. Lynch, James H. Forrest, C.L. Crabtree and Norfolk Southern Corporation (collectively defendants). We affirm the trial court. The record reflects the following generally uncontroverted factual and procedural backgroung information: Plaintiff was hired by defendant Norfolk Southern Railway Company (NSRC) on or about 12 November 1979 and worked at NSRC’s Linwood, North Carolina facility. As a Carman for NSRC, plaintiff was represented by his labor organization, the Transportation Communications International Union, Brotherhood of Railway Carmen Division (the Union). Plaintiff was also subject to the terms of a Collective Bargaining Agreement (the Agreement) between NSRC and the Union. Rule 34(a) of the Agreement specified as follows: [a]n employee will not be removed from service or disciplined (including discharge) except for just and sufficient cause after a preliminary hearing. On or about 5 December 1995, plaintiff testified under oath in a case brought by the Union and a co-worker against defendants Norfolk Southern Corporation (NSC) and NSRC in United States District Court for the Eastern District of Tennessee, Knoxville Division. In his sworn statement, plaintiff related he had heard defendant Thomas L. Lynch (Lynch), a NSRC Master Mechanic, state to employees of NSRC that he “did not recommend that we vote Jack [Wright] in as local chairman because ... Jack always stirred up problems” and that “we did not need Jack in there, because he would cause problems.” At the time, Wright was a candidate for election as local chairperson of the Union. Shortly thereafter, Timothy T. Malloy, Assistant Director of Labor Relations for NSRC, contacted Lynch and inquired if Lynch had indeed made such a statement. Lynch denied having done so. Defendant J.H. Forrest (Forrest), Senior General Foreman at NSRC’s Linwood facility and plaintiff’s supervisor, reviewed a copy of plaintiff’s sworn testimony at the request of Lynch. According to Forrest, he subsequently interviewed employees and supervisors “who could have been in the meeting or gathering where [plaintiff] alleged [Lynch] made the statement in question,” but each of the “individuals [interviewed] indicated they had not heard any supervisors at Linwood tell anyone not to vote for Jack Wright.” Pursuant to Rule 34 of the Agreement and on behalf of NSRC, Forrest wrote plaintiff a letter dated 4 January 1996. Plaintiff was directed therein to report “for a formal investigation to determine [plaintiff’s] responsibility for conduct unbecoming an employee” in connection with plaintiff’s sworn statement regarding Lynch. Defendant C.L. Crabtree (Crabtree), a NSRC official, presided over the 23 January 1996 investigation. Plaintiff, accompanied by his duly authorized Union representatives, presented testimony from five witnesses and documented polygraph test results. By letter dated 31 January 1996, Crabtree returned the documentation to plaintiff, indicating the polygraph results had been deleted from the record and would not be considered because such evidence was prohibited under the provisions of “the federal Employee Polygraph Protection Act, 29 U.S.C., Section 2001, et seq." By separate letter the same date, Crabtree also informed plaintiff the 'evidence presented at the investigation “clearly reflected] that [plaintiff was] guilty of the charge brought against [him,]” and that plaintiff was “dismiss[ed] from all services” of NSRC. Pursuant to the Agreement, plaintiff subsequently appealed to a Public Law Board which upheld his termination. Seeking compensatory and punitive damages, plaintiff instituted the instant action 31 January 1996, alleging claims of wrongful discharge in violation of public policy, defamation, negligent and intentional infliction of emotional distress, tortious interference with an employment contract and civil conspiracy. The case initially was removed to federal court and then remanded to Rowan County Superior Court. See Trexler v. Norfolk Southern Ry. Co., 957 F. Supp. 772 (M.D.N.C. 1997). Defendants’ subsequent motion for summary judgment was granted 16 March 1999 and all claims were dismissed with prejudice. Plaintiff’s appeal was dismissed by the trial court 11 October 1999 for failure to comply with the N.C. Rules of Appellate Procedure. On 3 December 1999, plaintiff filed a “Petition for Writ of Certiorari” (Petition) with this Court, which Petition was conditionally allowed and referred to this panel. We elect to entertain plaintiff’s appeal. See N.C.R. App. P. 21. Although plaintiff originally assigned error to dismissal of each of his six claims, his Petition sought review solely of the claim for wrongful discharge and only that cause of action has been addressed by plaintiff in his appellate brief. Plaintiff’s remaining assignments of error are thus deemed abandoned and we do not address them. See N.C.R. App. P. 28(b)(5) (assignments of error “in support of which no . . . argument is stated . .. will be taken as abandoned”). In short, plaintiff maintains on appeal that the trial court erred in granting defendants’ summary judgment motion regarding plaintiff’s claim for wrongful discharge. We do not agree. Summary judgment is properly granted 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, Rule 56 (1999). A summary judgment movant bears the burden of establishing the lack of any triable factual issue. Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 62-63, 414 S.E.2d 339, 341-42 (1992). The movant may meet its burden by: (1) demonstrating that an essential element of the plaintiff’s claim is nonexistent; (2) establishing through discovery that the plaintiff’s cannot produce evidence to support an essential element of the claim; or (3) showing that plaintiff cannot survive an affirmative defense, such as governmental immunity. Bernick v. Jurden, 306 N.C. 435, 440-41, 293 S.E.2d 405, 409 (1982). Plaintiff asserts he was entitled to sue in tort for wrongful discharge in violation of public policy “even though he was employed pursuant to a collective bargaining agreement.” Previous decisions of our appellate courts indicate plaintiff’s argument must fail. North Carolina’s first appellate decision adopting the tort of wrongful discharge in violation of public policy was Sides v. Duke Univ., 74 N.C. App. 331, 328 disc. review denied, 314 N.C. 331, 333 S.E.2d 490 (1985). The plaintiff nurse in Sides alleged her at will employment with the defendant had been terminated in retaliation for her refusal to commit perjury in a medical malpractice action against her employer. In upholding the plaintiff’s claim, this Court reasoned that: while there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy. ... We hold, therefore, that no employer in this State, notwithstanding that an employment is at will, has the right to discharge an employee and deprive him of his livelihood without civil liability because he refuses to testify untruthfully or incompletely in a court case as plaintiff alleges happened here. Id. at 342, 328 S.E.2d at 826. Our Supreme Court subsequently adopted a public-policy exception to employment at will in Coman v. Thomas Manufacturing Co., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989) (employer’s alleged discharge of plaintiff for refusal to violate U.S. Department of Transportation regulations by driving excessive hours and falsifying records “offend[s] the public policy of North Carolina”). Three years later, in Amos v. Oakdale Knitting Co., 331 N.C. 348, 416 S.E.2d 166 (1992), the Court considered a claim that three employees had been ordered to work for reduced pay, below the statutorily prescribed minimum wage, or suffer termination of their employment. Id. at 350, 452 S.E.2d at 168. In rejecting the defendants’ assertion that they had not violated public policy because the “alleged acts [we]re peculiar to the plaintiff[s],” id. at 352, 416 S.E.2d at 169, the Court observed that: [although the definition of “public policy” approved by this Court does not include a laundry list of what is or is not “injurious to the public or against the public good,” at the very least public policy is violated when an employee is fired in contravention of express policy declarations contained in the North Carolina General Statutes. Id. at 353, 452 S.E. 2d at 169 (footnote omitted). Plaintiff relies heavily upon the foregoing cases. Unlike plaintiff, however, we do not read these decisions to entitle all terminated employees to assert the tort of wrongful discharge. Rather, in each of the cited instances the tort was recognized solely in the context of employment at will. See id, 331 N.C. at 350, 416 S.E.2d at 167 (1992) (noting Coman explicitly adopted a public policy exception to the well-entrenched employment at will doctrine), and Williams v. Hillhaven Corp., 91 N.C. App. 35, 39, 370 S.E.2d 423, 425 (1988) (observing Sides created “an exception to the general rule that an employee at will has no tort claim for retaliatory discharge”). In addition, this Court has expressly stated that: [wrongful termination may be asserted “only in the context of employees at will,” and not by an employee “employed for a definite term or . . . subject to discharge only for ‘just cause.’ ” Houpe v. City of Statesville, 128 N.C. App. 334, 343, 497 S.E.2d 82, 88, (citations omitted) (emphasis added), disc. review denied, 348 N.C. 72, 505 S.E.2d 871 (1998). Further, in rejecting a schoolteacher’s claim she had been wrongfully “constructively discharged by Defendants in violation of public policy,” this Court reasoned as follows: Breach of contract is the proper claim for a wrongfully discharged employee who is employed for a definite term or an employee subject to discharge only for “just cause.” Plaintiff is not an employee at will because she had attained the status of a career teacher under § N.C. Gen. Stat. 115C-325(c) and could not be dismissed or demoted except for reasons specified in Section 115C-325(e)(1). Wagoner v. Elkin City Schools’ BD. of Education, 113 N.C. App. 579, 588-89, 440 S.E.2d 119, 125, (citations omitted) (emphasis added), disc. review denied, 336 N.C. 615, 447 S.E.2d. 414 (1994). Finally, in Claggett v. Wake Forest University, 126 N.C. App. 602, 486 S.E.2d 443 (1997), this Court affirmed the trial court’s dismissal of a university professor’s tort claim for wrongful discharge, reiterating that [b]reach of contract is the remedy for a wrongfully discharged employee who is employed for a definite term or who is subject to discharge only for just cause. Plaintiff alleges that he was employed pursuant to teaching appointments of definite duration; he was not, therefore, an at-will employee. Id. at 611, 486 S.E.2d at 448. In the case sub judice, the Agreement explicitly provided that plaintiff might not be “removed from service or disciplined (including discharge) except for just and sufficient cause after a preliminary hearing.” As with the plaintiffs in Wagoner and Claggett, therefore, “breach of contract [w]as the proper claim, Wagoner, 113 N.C. App. at 588, 440 S.E.2d at 125, by which plaintiff herein might have challenged termination of his employment in that he was “an employee subject to discharge only for “just cause,” id. Accordingly, an essential element of plaintiffs wrongful discharge claim was “nonexistent,” Roumillat, 331 N.C. at 63, 414 S.E.2d at 342, and the trial court did not err in granting summary judgment in favor of defendants regarding that claim. In light of this holding, we further hold the trial court properly allowed summary judgment as to plaintiffs claim for punitive damages. See Jones v. Gwynne, 312 N.C. 393, 405, 323 S.E.2d 9, 16 (1984) (before punitive damages may be awarded, “jury must find that the defendant committed an actionable legal wrong against the plaintiff’). Affirmed. Judges WYNN and McGEE concur.

EDWIN SWAIN, Plaintiff v. CAROLYN ELFLAND, individually and in her official capacity as an Assistant Vice Chancellor for Auxiliary Services of the University of North Carolina at Chapel Hill, JEFFREY McCRACKEN, individually and in his official capacity as Major in the Police Department of the University of North Carolina at Chapel Hill, DRAKE MAYNARD, individually and in his official capacity as Human Resources Administrator for the University of North Carolina at Chapel Hill, and OTHER UNKNOWN UNIVERSITY OFFICIALS, and the UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Defendants No. COA00-258 (Filed 7 August 2001) 1. Employer and Employee— wrongful discharge — retaliation — conj ecture The trial court did not err by granting summary judgment for defendants on wrongful discharge and conspiracy claims by a UNC police officer who issued an underage drinking citation to the daughter of a University trustee. Plaintiff presented nothing more than conjecture to support his allegations of retaliation and there was no evidence of any agreement to unlawfully discharge plaintiff. 2. Public Officers and Employees— whistleblower claim— failure to exhaust administrative remedies The trial court did not err by dismissing a UNC police officer’s whistleblower claim for failure to exhaust administrative remedies where there was no question that he had unsuccessfully exercised his right to seek relief from the State Personnel Commission under N.C.G.S. § 126-34.1(a)(7) and did not seek judicial review. Although plaintiff contends that he could maintain an administrative action under N.C.G.S. § 126-34.1(a) (7) and an action in superior court under N.C.G.S. § 126-85, the only reasonable interpretation of these statutes is that a state employee may choose to pursue a whistleblower claim in either forum, but not both. Moreover, plaintiff did not include the required allegations that exhaustion of his administrative remedy would be futile, and, even if the two statutory provisions are assumed to be in para materia, N.C.G.S. § 126-34.1(a)(7) controls as the more recent enactment. 3. Constitutional Law— free speech — official capacities— adequate state remedy A dismissed UNC police officer’s state constitutional claim was properly dismissed where plaintiff brought a claim for alleged constitutional violations against defendants in their official capacities and had an adequate state remedy available to him. Appeal by plaintiff from order entered 13 December 1999 by Judge James C. Davis in Orange County Superior Court. Heard in the Court of Appeals 22 January 2001. McSurely & Osment, by Alan McSurely and Ashley Osment, for plaintiff appellant. Attorney General Michael F. Easley, by Senior Deputy Attorney General Ann Reed, Assistant Attorneys General Bruce S. Ambrose, and Richard E. Slipsky, for defendant appellees. SMITH, Judge. The plaintiff, Lt. Edwin Swain, Jr., is employed as a police officer at the University of North Carolina at Chapel Hill. On 27 September 1997, plaintiff was assigned to an “Interdiction and Arrest” team at a football game at Kenan Stadium. The primary purpose of the team was to enforce the alcohol laws. After the game, plaintiff observed a young woman, Caroline Hancock, holding what appeared to be a malt beverage. When plaintiff approached Hancock, a member of Hancock’s party alerted her to plaintiffs presence. Hancock took the bottle and placed it in the back of a truck. Plaintiff told Hancock he saw her in possession of a malt beverage, asked her if it was a beer, and she replied affirmatively. Plaintiff then requested Hancock’s driver’s license, which listed her age as eighteen years old. Plaintiff proceeded to write her a citation for underage drinking. Soon thereafter, Hancock’s father approached, and plaintiff informed him that he was citing Hancock. Hancock’s father, Billy Armfield, was a member of the University Board of Trustees. Armfield asked plaintiff not to issue the citation, but plaintiff declined the request. Plaintiff then left and headed back to the police department. After the game, Armfield protested his daughter’s citation to University officials. Plaintiff’s superior, Major Jeffrey McCracken, later communicated to plaintiff that there were questions regarding plaintiff’s probable cause to issue the citation. On 29 September 1997, plaintiff reported for duty and entered Hancock’s citation into the computer. According to plaintiff, Major McCracken ordered him to turn over the copies of the citation to him, and tried to persuade him to withdraw the citation. The citation was later pulled from a stack of citations ready for transfer to a magistrate. Plaintiff accused his superiors of obstruction of justice and refused to cooperate with them. On 31 September 1997, the citation was returned to the “judicial stream” and forwarded to the magistrate. Soon thereafter, plaintiff reported the alleged “coverup” to the media, and several news accounts appeared in the press. Plaintiff later filed a grievance to protest his supervisor’s decisions, and requested an investigation into what he believed was improper police procedures and obstruction of justice. Plaintiff’s grievances were denied. On 30 October 1997, Major McCracken received information that plaintiff, while on duty, had visited the offices of the Chapel Hill News. Plaintiff was seen there between the hours of noon and 2:00 p.m., and he was not there on official UNC-CH business. Major McCracken later confirmed this information with Anne England, an employee at the newspaper. Plaintiff had not informed his dispatcher of his location during this time period. Major McCracken did not immediately confront plaintiff with this information and instead decided to wait and see whether plaintiff claimed the time as personal time on his timecard. After plaintiff submitted his timecard, Major McCracken asked him about the time he spent at the newspaper on 30 October 1997. Plaintiff had not claimed the time as personal leave. Plaintiff’s reply was “interesting” without further elaboration. Major McCracken then gave plaintiff the opportunity to change his timecard, but plaintiff refused. A pre-disciplinary conference was held on 17 November 1997, and plaintiff declined to provide any explanation for his time-card. On 19 November 1997, Major McCracken fired plaintiff. Plaintiff filed the instant lawsuit on or about 2 December 1997 alleging: (1) violation of N.C. Gen. Stat. § 126-85 (1999), the “Whistleblower Act”; (2) wrongful discharge in violation of public policy and racial discrimination in violation of N.C. Gen. Stat. § 143-422.2 (1999); (3) violation of his state constitutional rights to free speech; and (4) a conspiracy by Carolyn Elfland, Major McCracken, and Drake Maynard to unlawfully discharge plaintiff from his employment. Shortly after plaintiff filed this action, his dismissal was rescinded by Chancellor Michael Hooker. Chancellor Hooker adopted the findings of an independent investigation which found there was just cause for discipline, but that dismissal was too harsh a penalty. Plaintiff was reinstated but suspended for one week without pay. On or about 23 December 1997, plaintiff filed a petition for a contested case hearing in the North Carolina Office of Administrative Hearings. Plaintiff alleged his suspension was without cause, and was the result of racial discrimination and retaliation. A hearing was held on 11-14 May 1998. On 31 July 1998, Judge Fred G. Morrison issued a Recommended Decision concluding that defendants had just cause to discipline plaintiff for unacceptable personal conduct, and that plaintiff was not the victim of illegal discrimination or retaliation. Accordingly, the suspension of plaintiff without pay for one week was affirmed. On 18 November 1998, the State Personnel Commission upheld the Recommended Decision. Plaintiff did not appeal. On 27 October 1999, defendants moved for summary judgment in the instant case. On 13 December 1999, the trial court granted summary judgment to defendants. The trial court concluded that: (1) plaintiffs Whistleblower claim was dismissed due to plaintiffs failure to exhaust his administrative remedies; (2) plaintiffs wrongful discharge claim was dismissed due to plaintiffs failure to exhaust his administrative remedies; (3) plaintiffs state constitutional claims were dismissed because plaintiff had an adequate state remedy available, and thus his claim was lacking an essential element; and (4) summary judgment on all claims in the complaint was allowed on the ground that there was no genuine issue of material fact and defendants were entitled to judgment as a matter of law. Plaintiff appealed. I. We first consider whether the trial court erred in dismissing plaintiffs complaint on summary judgment because there was no genuine issue as to any material fact. Specifically, plaintiff challenges the trial court’s dismissal of his claim of wrongful discharge, and his allegation that defendants conspired to unlawfully discharge him. To establish a cause of action for wrongful discharge or demotion in violation of his right to freedom of speech, plaintiff must forecast sufficient evidence “ ‘that the speech complained of qualified as protected speech or activity’ ” and “ ‘that such protected speech or activity was the ‘motivating’ or ‘but for’ cause for his discharge or demotion.’ ” Warren v. New Hanover County Bd. of Education, 104 N.C. App. 522, 525-26, 410 S.E.2d 232, 234 (1991) (quoting Jurgensen v. Fairfax County, 745 F.2d 868, 877-78 (4th Cir. 1984)). “ ‘[T]he resolution of these two critical issues is a matter of law and not of fact.’ ” Id. See also Evans v. Cowan, 132 N.C. App. 1, 9, 510 S.E.2d 170, 175 (1999). The only motivation established by the competent evidence in the case sub judice was that plaintiff was dismissed due to the discrepancies in his timecard and his refusal to either amend his timecard or provide an explanation for the discrepancies. Major McCracken, who was plaintiff’s supervisor, and made the decision to dismiss plaintiff, testified that plaintiff’s grievances over the ticket had “nothing to do” with the decision to dismiss plaintiff. In fact, Major McCracken testified that he took disciplinary action against plaintiff in spite of the publicity, not because of it. Major McCracken admitted that plaintiff’s submission of the falsified time-card created a “terrible timing” problem, but that he “had to act on it.” Chancellor Hooker testified that he concluded that plaintiff had violated policies, and although he believed the punishment of dismissal was too severe, there was no evidence to support a conclusion that any UNC-CH official was motivated to retaliate against plaintiff because he had gone to the newspapers. Chancellor Hooker also stated that the disciplinary action against plaintiff was in spite of all the attendant publicity, and not because of it. “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.” Lenzer v. Flaherty, 106 N.C. App. 496, 510, 418 S.E.2d 276, 284, disc. review denied, 332 N.C. 345, 421 S.E.2d 348 (1992). Here, plaintiff presented nothing more than mere conjecture to support his allegations of retaliation. Accordingly, we conclude that the trial court properly dismissed plaintiff’s retaliatory discharge claim. Because plaintiff’s underlying claims were properly dismissed, his allegation that defendants conspired to unlawfully discharge him must likewise fail. “A claim for conspiracy . . . cannot succeed without a successful underlying claim . . . .” Jay Group, Ltd. v. Glasgow, 139 N.C. App. 595, 599, 534 S.E.2d 233, 236, disc. review denied, 353 N.C. 265, 546 S.E.2d 100 (2000). See Burton v. Dixon, 259 N.C. 473, 476, 131 S.E.2d 27, 30 (1963) (“A civil action for conspiracy is an action for damages resulting from acts committed by one or more of the conspirators pursuant to the formed conspiracy ....”). Assuming arguendo that plaintiff had succeeded on his underlying claims, plaintiff has not pointed to any competent evidence in the record to support his allegations that defendants conspired to unlawfully discharge him, and our review of the record discloses no such evidence. This Court has stated: A civil conspiracy claim consists of: (1) an agreement between two or more persons; (2) to do an unlawful act or to do a lawful act in an unlawful way; (3) which agreement resulted in injury to the plaintiff. Although an action for civil conspiracy may be established by circumstantial evidence, sufficient evidence of the agreement must exist “to create more than a suspicion or conjecture in order to justify submission of the issue to a jury.” Boyd v. Drum, 129 N.C. App. 586, 592, 501 S.E.2d 91, 96 (1998) (citations omitted) (quoting Dickens v. Puryear, 302 N.C. 437, 456, 276 S.E.2d 325, 337 (1981)), aff'd, 350 N.C. 90, 511 S.E.2d 304 (1999). Where such an agreement exists, “ ‘all of the conspirators are liable, jointly and severally, for the act of any one of them done in furtherance of the agreement.’ ” Johnson v. First Union Corp., 128 N.C. App. 450, 459, 496 S.E.2d 1, 7 (1998) (quoting Fox v. Wilson, 85 N.C. App. 292, 301, 354 S.E.2d 737, 743 (1987)). In the case at bar, there is no evidence of any agreement among defendants to unlawfully discharge plaintiff. Carolyn Elfland testified that she did not make the decision to dismiss plaintiff, and did not instruct Major McCracken to dismiss him. Elfland was the Associate Chancellor for Auxiliary Services at the University and Major McCracken’s supervisor. Drake Maynard, Senior Director of Human Resources, testified that he provided information about the disciplinary process to Elfland and Major McCracken, but played no role in the decision to dismiss plaintiff. Thus, there is no evidence that defendants acted in concert to willfully and intentionally discredit and discharge plaintiff in violation of his rights, only plaintiff’s allegations based on mere suspicion. This assignment of error is overruled. II. We next consider whether the trial court erred in dismissing plaintiff’s “Whistleblower” claim on the ground that plaintiff failed to exhaust his administrative remedies. Plaintiff argues that N.C. Gen. Stat. § 126-86 (1999) expressly authorizes superior court jurisdiction over a state employee’s claim of retaliation for reports of governmental wrongs. Plaintiff asserts that he chose to sue in superior court pursuant to N.C. Gen. Stat. 126-86, and there is “no exhaustion condition precedent.” We are not persuaded by plaintiffs argument. Two statutes provide avenues to redress violations of the Whistleblower statute. N.C. Gen. Stat. § 126-86 states that “[a]ny State employee injured by a violation of G.S. 126-85 may maintain an action in superior court . . . .” N.C. Gen. Stat. § 126-34.1(a)(7) (1999) provides that a State employee may file in the Office of Administrative Hearings a contested case for “[a]ny retaliatory personnel action that violates G.S. 126-85.” Here, plaintiff alleged in his petition for a Contested Case Hearing that he had been retaliated against. Thus, it is without question that he exercised his right under N.C. Gen. Stat. § 126-34.1(a)(7) to seek relief from the State Personnel Commission of the alleged violation of the Whistleblower Act. Under plaintiff’s interpretation of the statutes at issue, he could maintain an administrative action and an action in superior court simultaneously. However, this would allow plaintiff two bites of the apple, could lead to the possibility that different forums would reach opposite decisions, as well as engender needless litigation in violation of the principles of collateral estoppel. See University of Tennessee v. Elliott, 478 U.S. 788, 797, 92 L. Ed. 2d 635, 645 (1986) (“[I]t is sound policy to apply principles of issue preclusion to the fact-finding of administrative bodies acting in a judicial capacity.”). The only reasonable interpretation of these statutes is that a state employee may choose to pursue a Whistleblower claim in either forum, but not both. See Hobbs v. Moore County, 267 N.C. 665, 671, 149 S.E.2d 1, 5 (1966) (“If possible, the language of a statute will be interpreted so as to avoid an absurd consequence. A statute is never to be construed so as to require an impossibility if that result can be avoided by another fair and reasonable construction of its terms.”). Id. (citations omitted). Plaintiff chose to pursue an administrative action, the administrative law judge ruled against plaintiff, and plaintiff did not seek judicial review. See Huang v. N.C. State University, 107 N.C. App. 710, 715, 421 S.E.2d 812, 815 (1992) (“[T]he policy of requiring the exhaustion of administrative remedies prior to the filing of court actions ‘does not require merely the initiation of prescribed administrative procedures, but that they should be pursued to their appropriate conclusion and their final outcome awaited before seeking judicial intervention . . . .’ ”). Id. (quoting 2 Am. Jur. 2d Administrative Law § 608 (1962)). Additionally, plaintiff did not allege in his complaint that exhaustion of his administrative remedy would be futile. “The burden of showing the inadequacy of the administrative remedy is on the party claiming the inadequacy, and the party making such a claim must include such allegation in the complaint.” Id. (citation omitted). Accordingly, we conclude that plaintiff has failed to exhaust his administrative remedies for this claim, and it was properly dismissed. Even if we were to assume arguendo that the two provisions in question here are in pari materia, but are in irreconcilable conflict, the provisions of N.C. Gen. Stat. § 126-34.1(a)(7) would control, because it is the more recent enactment. This Court has stated: Statutes in pari materia, although in apparent conflict or containing apparent inconsistencies, should, as far as reasonably possible, be construed in harmony with each other so as to give force and effect to each; but if there is an irreconcilable conflict, the latest enactment will control, or will be regarded as an exception to, or qualification of, the prior statute. State v. Hutson, 10 N.C. App. 653, 657, 179 S.E.2d 858, 861 (1971); see also Caudill v. Dellinger, 129 N.C. App. 649, 655, 501 S.E.2d 99, 103 (1998), aff’d in part, dismissed in part, 350 N.C. 89, 511 S.E.2d 304 (1999). Thus, N.C. Gen. Stat. § 126-34.1(a)(7) would control and plaintiff’s exclusive remedy would be administrative. III. We next consider whether the trial court erred in dismissing plaintiffs state constitutional claim on the grounds that plaintiff had an adequate state remedy available to him, and thus, plaintiff was lacking an essential element of his claim. Plaintiff alleged in his complaint that his discharge “was made to chill his free speech rights.” Plaintiff contended that “[t]he retaliatory discharge described here violates the public’s interest in free expression to make decisions about public funds and policies. If this retaliatory discharge is declared constitutional, it would create a chilling wind against plaintiff, other police officers, and other employees of this and other public institutions.” Plaintiff then stated he was bringing his claim directly against defendants, under the North Carolina Constitution, because no other legal remedy was available to him. We disagree with plaintiff’s arguments. Plaintiff’s complaint seeks a monetary remedy for alleged state constitutional violations by defendants. “Such a claim is commonly called a ‘Corum claim.’ ” Ware v. Fort, 124 N.C. App. 613, 616, 478 S.E.2d 218, 220 (1996). See Corum v. University of North Carolina, 330 N.C. 761, 413 S.E.2d 276, cert. denied sub. nom. Durham v. Corum, 506 U.S. 985, 616, 121 L. Ed. 2d 431 (1992). To the extent that plaintiff alleges a Corum claim against defendants in their in

JOHN S. RENEGAR, Plaintiff v. R.J. REYNOLDS TOBACCO COMPANY, Defendant No. COA00-450 (Filed 17 July 2001) Statute of Limitations— wrongful discharge — filing state action after voluntary dismissal of federal action The trial court did not err in a wrongful discharge action by granting summary judgment in favor of defendant employer based on the expiration of the three-year statute of limitations under N.C.G.S. § 1-52(5) even though plaintiff filed the instant state action within one year of the voluntary dismissal without prejudice of his non-diversity federal complaint under Federal Rule 41, because: (1) plaintiffs voluntary dismissal of a non-diversity case failed to implicate the savings provision of N.C.G.S. § 1A-1, Rule 41(a) and Federal Rule 41 contains no savings provision; (2) plaintiffs federal complaint reveals no basis upon which the federal court might have assumed supplemental jurisdiction under 28 U.S.C.A.§ 1367(a) for plaintiff’s wrongful discharge claim; and (3) plaintiffs state court action was not a new action based upon the same claims as those asserted in the prior action so as to bring N.C.G.S. § 1A-1, Rule 41(a) into play. Appeal by plaintiff from order entered 29 November 1999 by Judge Peter M. McHugh in Forsyth County Superior Court. Heard in the Court of Appeals 30 January 2001. Herman L. Stephens for plaintiff-appellant. Gonstangy, Brooks & Smith, L.L.C., by W.R. Loftis, Jr. and Virginia A. Piekarski, for defendant-appellee. JOHN, Judge. Plaintiff John S. Renegar appeals the trial court’s 29 November 1999 order granting summary judgment in favor of defendant R.J. Reynolds Tobacco Company (RJR). We affirm the trial court. Our disposition of plaintiff’s appeal renders a lengthy recitation of the underlying facts unnecessary. Plaintiff began employment with RJR on 2 June 1984 and was terminated 15 April 1996. In June 1998, plaintiff filed a pro se civil action (plaintiff’s federal action) against RJR in the United States District Court for the Middle District of North Carolina. Plaintiff amended his complaint 7 July 1998, alleging the following six separate causes of actions: (1) discrimination against plaintiff in violation of title VII of the federal Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq. (1994); (2) discrimination against plaintiff in violation of 42 U.S.C.A. § 12101 et seq. (1995), the Americans With Disabilities Act; (3) violation of plaintiff’s rights under the federal Family and Medical Leave Act, 29 U.S.C.A. § 2601 et seq. (1999); (4) violation of plaintiffs federal constitutional rights to privacy and speech under the First, Fourth and Fourteenth Amendments to the United States Constitution; (5) “infliction of daily emotional distress” as a result of discrimination, harassment and retaliation; (6) and discrimination against plaintiff in violation of 29 U.S.C.A. § 621 et seq. (1999), the Age Discrimination in Employment Act. On 29 August 1998, plaintiff filed a voluntary dismissal without prejudice, pursuant to Rule 41(a) of the Federal Rules of Civil Procedure (Federal Rule 41), as to each of the foregoing claims. See Fed. Rules Civ. Proc. Rule 41(a), 28 U.S.C.A. (1992). Precisely one year later, on 29 August 1999, plaintiff filed a complaint against RJR in Forsyth County Superior Court (plaintiffs state action) asserting a claim of wrongful discharge in violation of public policy. RJR thereupon moved to dismiss plaintiffs complaint pursuant to N.C.G.S. § LA-1, Rule 12(b)(6) (1999) on grounds “it fail[ed] to state a claim upon which relief can be granted because the claim asserted by Plaintiff therein is time-barred” (RJR’s motion). The trial court treated RJR’s motion as one for summary judgment and, by order dated 29 November 1999, granted the motion on the basis that the applicable statute of limitations had expired. Plaintiff appeals. It is undisputed that the statute of limitations for a wrongful discharge action under North Carolina law is three years from the date of discharge. See N.C.G.S. § 1-52(5) (1999). In the case sub judice, therefore, the statute began to run 15 April 1996, the date of plaintiff’s termination, and thus ordinarily would have expired 15 April 1999, several months prior to the filing of plaintiff’s state action. Rule 41 of the North Carolina Rules of Civil Procedure differs from its federal counterpart in that it contains the following additional provision: If an action commenced within the time prescribed therefor, or any claim therein, is dismissed without prejudice under this subsection, a new action based on the same claim may be commenced within one year after such dismissal unless a stipulation filed under (ii) of this subsection shall specify a shorter time. G.S. § 1A-1, Rule 41(a)(1) (1999). “The effect of this provision is to extend the statute of limitations by one year after a voluntary dismissal.” Staley v. Lingerfelt, 134 N.C. App. 294, 298, 517 S.E.2d 392, 395, disc. review denied, 351 N.C. 109, 540 S.E.2d 367 (1999). Disposition of the instant appeal therefore turns upon the applicability of the one-year savings provision of N.C. Rule 41 to plaintiffs state action. Plaintiff argues the trial court erred in allowing RJR’s motion in light of the savings provision of N.C. Rule 41. According to plaintiff, the federal court had supplemental or “pendent” jurisdiction over his wrongful discharge claim. See 28 U.S.C.A. § 1367(a) (1993) (when federal district court has original jurisdiction over a civil action, it may also exercise “pendent” or “supplemental” jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy). As such, plaintiff maintains “state substantive law governs all pendent jurisdiction North Carolina state law claims” in a federal case. Because he commenced the instant state action within one year of the voluntary dismissal of his federal complaint, plaintiff concludes his state action was timely filed under N.C. Rule 41(a). However, regarding his initial federal action, plaintiff concedes “[t]here was no diversity of citizenship between plaintiff and [RJR],” and that “[t]he federal court’s jurisdiction was based on the federal questions he presented in his federal complaint.” Accordingly, plaintiff’s first complaint was not predicated upon diversity of citizenship jurisdiction, i.e., it was a “non-diversity” case. This is significant because determination of the law to be applied in federal court is governed by the source of the right or issue being adjudicated. 19 C. Wright, A. Miller & E. Cooper, Fed. Prac. & Proc. 2d § 4520 (1996). For example, “[t]he tolling of a state statute of limitation in a diversity case is strictly a substantive matter of state law,” Kahn v. Sturgill, 66 F.R.D. 487, 491 (M.D.N.C. 1975) (emphasis added), which the federal court must follow, id.; see Erie Railroad v. Tomkins, 304 U.S. 64, 78, 82 L. Ed. 1188, 1194 (1938) (federal court in diversity case is to apply substantive provisions of state law), and Guaranty Trust Co. v. York, 326 U.S. 99, 108, 89 L. Ed. 2079, 2086 (1945) (“federal court adjudicating a state-created right solely because of the diversity of citizenship of the parties is for that purpose, in effect, only another court of the State”). Conversely, where a federal court gains jurisdiction over state claims supplementally, pursuant to 28 U.S.C.A. § 1367(a), because the action was . . . brought based on federal or constitutional law, the [federal] court is not bound to state substantive law only. Harter v. Vernon, 139 N.C. App. 85, 94, 532 S.E.2d 836, 841, appeal dismissed and disc. review denied, 453 N.C. 263, 546 S.E.2d 97 (2000), cert. denied,-U.S.-,-L. Ed. 2d - (2001). In response to plaintiffs arguments, RJR maintains that plaintiffs voluntary dismissal under Federal Rule 41 of a non-diversity case failed to implicate the savings provision of N.C. Rule 41(a), and further that plaintiffs state court action in any event was not “a new action based upon the same claims as those asserted in the prior action” (emphasis in original) so as to bring N.C. Rule 41(a) into play. In sum, the issue before us is whether plaintiff, after having first filed a voluntary dismissal without prejudice under Federal Rule 41 of his federal action, a non-diversity case, was improperly precluded, in light of the one-year savings provision of N.C. Rule 41(a)(1), from pursuing a claim in state court after the statute of limitations had run on that claim. Previous decisions of our appellate courts indicate this issue must be resolved against plaintiff. In Bockweg v. Anderson, 328 N.C. 436, 402 S.E.2d 627 (1991), the plaintiffs filed a complaint in federal court sitting in diversity jurisdiction alleging various state malpractice claims. Id. at 437, 402 S.E.2d at 628. Plaintiffs subsequently stipulated to a voluntary dismissal without prejudice as to one of the claims, refiling that claim in state court within one year of the voluntary dismissal, but beyond the applicable limitations period for the dismissed claim. Id. The trial court rejected the suit as untimely and plaintiffs appealed. Our Supreme Court characterized the issue on appeal as the effect of the dismissalf] on plaintiffs’ subsequent attempt to refile the action in state court within the one-year savings provision in N.C.G.S. § 1A-1, Rule 41(a)(1), but outside the period of limitations that controls unless N.C.G.S. § 1A-1, Rule 41(a)(1) applies. Id. at 438, 402 S.E.2d at 628. Citing decisions from the federal courts, the Court stated that the effect of a voluntary dismissal under Federal Rule 41 was dependent upon “whether the federal court’s jurisdiction was based on the existence of a federal question or on diversity of citizenship.” Bockweg, 328 N.C. at 441, 502 S.E.2d at 630. Further, [fjederal courts ordinarily need not consider the applicability of a savings provision, as the federal rule contains no such provision. This applies to cases in federal court in which jurisdiction is not based on diversity of citizenship and in which there is no occasion for the federal court to apply state substantive law. Id. at 438, 402 S.E.2d at 629 (emphasis added). Finally, relying on Humphreys v. United States, 272 F.2d 411 (9th Cir. 1959), the Court stated that “a voluntary dismissal under the Federal Rules in a nondi-versity case in federal court does not toll the statute of limitations or invoke [the] savings provision.” Bockweg, 328 N.C. at 439, 402 S.E.2d at 629. The Court also pointed out that federal courts sitting in diversity, and thus following North Carolina law, have applied the one-year savings provision of N.C. Rule 41 to diversity cases dismissed in federal court and recommenced in that court. Id. at 439-40, 402 S.E.2d at 629-30; see Haislip v. Riggs, 534 F. Supp. 95 (W.D.N.C. 1981); Shuford v. K.K. Kawamura Cycle Co., 649 F.2d 261 (4th Cir. 1981); and Webb v. Nolan, 361 F. Supp. 418 (1972), aff’d, 484 F.2d 1049 (4th Cir. 1973), cert. denied, 415 U.S. 903, 39 L. Ed. 2d 461 (1974). Accordingly, [i]n diversity cases in which state law concerning voluntary dismissal is different from federal law, the federal court will conduct an analysis under Erie and its progeny to determine the applicable law. Further, federal courts sitting in diversity applying North Carolina substantive law have concluded that when a plaintiff voluntarily dismisses in federal court and recommences in federal court, he is entitled to the benefit of the North Carolina savings provision as a matter of state substantive law. Bockweg, 328 N.C. at 441, 402 S.E.2d at 630. Applying the foregoing reasoning to the case before it, the Court held that a plaintiff who stipulates to a voluntary dismissal, without prejudice, of a timely filed action in a federal court sitting in diversity and applying North Carolina law, and refiles the action in North Carolina state court, may invoke the one-year savings provision in N.C.G.S. § 1A-1, Rule 41. Id. at 450, 402 S.E.2d at 635 (emphasis added). However, as in Clark v. Velsicol Chemical Corp., 110 N.C. App. 803, 807, 431 S.E.2d 227, 229 (1993), aff'd, 336 N.C. 599, 444 S.E.2d 223 (1994) (plaintiffs federal case involuntarily dismissed because of lack of diversity, Bockweg inapplicable, and plaintiffs subsequent state action filed outside the appropriate statute of limitations properly dismissed as time barred), Bockweg is inapposite to the case sub judice. Unlike the plaintiffs in Bockweg, plaintiff by his own admission brought his federal action pursuant to the court’s federal question jurisdiction as opposed to its diversity of citizenship jurisdiction. Under Bockweg, therefore, the effect of the voluntary dismissal of plaintiffs federal action upon his state action was governed by Federal Rule 41 which contains no savings provision. See Bockweg, 328 N.C. at 438, 402 S.E.2d at 629; see also Harter v. Vernon, 139 N.C. App. 85, 93-4, 532 S.E.2d 836, 841 (2000) (voluntary dismissal under federal Rule 41 in a nondiversity case does not toll the statute of limitations or implicate the savings provision of N.C. Rule 41(a)). Accordingly, because plaintiffs state action was filed outside North Carolina’s three year statute of limitations for a wrongful discharge claim, see G.S. § 1-52(5), and the savings provision of N.C. Rule 41 was inapplicable to plaintiff’s state action, the trial court did not err in entering summary judgment against plaintiff. Notwithstanding, plaintiff advances the proposition that the federal court maintained “supplemental” jurisdiction, see 28 U.S.C.A § 1367(a), over his wrongful discharge claim in plaintiff’s federal action, thereby necessitating application of North Carolina substantive law, including N.C. Rule 41, to that claim. We do not agree. First, Bockweg did not address supplemental jurisdiction of a federal court over a state action, but rather held that a federal court sitting in diversity and applying North Carolina law, i.e., N.C. Rule 41(a)(1), would allow up to one-year for refiling an action which had been voluntarily dismissed. Bockweg, 328 N.C. at 450, 402 S.E.2d at 635. We reiterate that plaintiff has conceded that jurisdiction over his federal action was based upon “federal question jurisdiction rather than diversity of citizenship jurisdiction.” Perhaps more significantly, careful review of plaintiff’s federal complaint reveals no basis upon which the federal court might have assumed supplemental jurisdiction of plaintiffs wrongful discharge claim. Assuming arguendo plaintiffs claim of wrongful discharge may have been “so related to claims in the action within [the] original jurisdiction [of the federal court] that [it] form[ed] part of the same case or controversy,” 28 U.S.C.A. § 1367(a), plaintiffs federal complaint alleged six claims of action based solely upon federal statutes and the federal constitution and set forth no specific claim under North Carolina substantive law, and specifically no North Carolina wrongful discharge claim, such that the federal court would have been accorded supplemental jurisdiction over that claim. It is well established, moreover, that [t]o benefit from the one year extension of the statute of limitation, the second action must be “substantially the same, involving the same parties, the same cause of action, and the same right. ...” Cherokee Ins. Co. v. R/I, Inc., 97 N.C. App. 295, 297, 388 S.E.2d 239, 240 (citation omitted), disc. review denied, 326 N.C. 594, 393 S.E.2d 875 (1990). Assuming arguendo North Carolina Rule 41(a)(1) was applicable to plaintiffs state action, therefore, plaintiff was not entitled to invoke the one-year savings provision because that action and his prior federal action were not “based on the same claim[s].” G.S. § 1A-1, Rule 41(a)(1). In Stanford v. Owens, 76 N.C. App. 284, 332 S.E.2d 730, disc. review denied, 314 N.C. 670, 336 S.E.2d 402 (1985), a claim of fraud, first alleged during re-filing of a previously voluntarily dismissed negligence claim, was held to have been time-barred by the statute of limitations. The plaintiffs maintained the fraud claim was properly filed within one year of the dismissal in that it ha[d] in effect been before the court all along, since it rest[ed] upon somewhat the same allegations that were made in support of the negligent misrepresentation claim when the action was first filed .... Id. at 289, 332 S.E.2d 733. This Court disagreed, concluding that “[a] claim for fraud is fundamentally different from a claim for negligence,” id., and that plaintiffs original allegations of negligence “did not in effect or otherwise,” id., allege fraud. In Staley v. Lingerfelt, 134 N.C. App. 294, 517 S.E.2d 392, this Court considered the circumstance wherein the plaintiffs’ first complaint [filed 4 August 1995] arose out of the [collision] on 11 June 1993, but alleged on a section 1983 claim and a claim of loss of consortium. Id. at 298, 517 S.E.2d at 395. Plaintiffs subsequently voluntarily dismissed that action and thereafter instituted an action 5 September 1995 alleging the two original claims as well as claims of assault and battery, false arrest and imprisonment, malicious prosecution, intentional infliction of emotional distress, negligent infliction of emotional distress, trespass by a public officer, violations of the North Carolina Constitution, and a claim for punitive damages. Id. at 296, 517 S.E.2d at 394. This Court held the latter claims, filed within one year after voluntarily dismissal of the first complaint but outside the applicable limitations period, did not fall within the one year savings provision of North Carolina Rule 41(a)(1) and thus were barred. Id. at 299, 517 S.E.2d at 396. We reasoned that [although the claims [in plaintiffs’ second complaint] ar[o]se from the same events as the section 1983 and loss of consortium claims, defendants were not placed on notice that they would be asked to defend these claims within the time required by the statute of limitations. Id. In the case sub judice, the claims set forth in plaintiff’s federal and state actions arose from the same event, his discharge by RJR. However, the claim of wrongful discharge alleged in the state action and the federal statutory and constitutional claims alleged in the federal action each constitute “independent cause [s] of action with unique elements which must be proven by plaintiff[],” id., and RJR thus was not placed on notice by plaintiff’s federal action that it would be asked to defend plaintiff’s state wrongful discharge claim “within the time required by the statute of limitations,” id. In short, plaintiff’s state action thus was not “based on the same claims,” G.S. § 1A-1, Rule 41(a)(1), alleged in his federal action. To conclude, plaintiff’s state action, filed 20 August 1999, was not timely filed, and the trial court properly granted summary judgment in favor of RJR. Affirmed. Judges GREENE and TYSON concur.