Wrongful Termination Cases

HUGH KEVIN HINES, Plaintiff v. GARLAND N. YATES, in his Individual and Personal Capacity and in His Official Capacity as the District Attorney for the 19-B Prosecutorial District, State of North Carolina; LITCHARD D. HURLEY, in His Individual and Personal Capacity and in His Official Capacity as the Sheriff of Randolph County, North Carolina; WESTERN SURETY COMPANY, a South Dakota Corporation, Defendants No. COA04-775 (Filed 5 July 2005) 1. Appeal and Error— appealability — preservation of issues— failure to argue — interlocutory order The cross-assignments of error that plaintiff failed to argue in his brief are deemed abandoned under N.C. R. App. P. 28(a) and plaintiffs cross-appeals, except for wrongful discharge, are interlocutory and dismissed under N.C. R. App. P. 10. 2. Appeal and Error— appealability — denial of summary judgment — immunity—substantial right Although an appeal from the denial of a motion for summary judgment is generally an appeal from an interlocutory order, defendants’ appeal is properly before the Court of Appeals because defendants’ answer and arguments assert the affirmative defenses of immunity and qualified immunity which affect a substantial right sufficient to warrant immediate appellate review. 3. Wrongful Interference— malicious interference with contractual relations — summary judgment The trial court erred by denying defendant sheriff’s motion for summary judgment on plaintiff’s claim for malicious interference with contractual relations in defendant’s official and individual capacity, because: (1) plaintiff’s allegations fail to establish the element of “no justification” to support his claims for malicious interference with contract as an investigatorial assistant in the district attorney’s office; (2) plaintiff’s allegations do not show that defendant sheriff did not have an official or personal justification in requesting plaintiff to be reassigned or terminated and that defendant, as a constitutionally elected officer, enjoyed a qualified immunity from tort in communicating with defendant district attorney who was also a constitutionally elected officer; (3) plaintiff offered no evidence to show that the district attorney terminated him because of the sheriff’s request or that he suffered recoverable damages as a result of the sheriff requesting plaintiffs termination; and (4) the district attorney’s affidavit and answers to plaintiffs interrogatories set forth objective and substantial reasons for terminating plaintiff, none of which were based upon the sheriffs request to do so. 4. Constitutional Law— North Carolina — suit against district attorney in individual and personal capacity — summary judgment The trial court erred by concluding that defendant district attorney was not entitled to summary judgment on plaintiffs claim for relief under violations of the North Carolina Constitution in defendant’s individual and personal capacity, because: (1) it is well settled in North Carolina that no direct cause of action for monetary damages exists against officials sued in their individual capacities who have allegedly violated a plaintiff’s constitutional rights; and (2) plaintiff concedes that his complaint does not set forth a cause of action against defendant in his individual and personal capacity for this claim. 5. Public Officers and Employees— wrongful termination— investigatorial assistant in district attorney’s office The trial court did not err by granting summary judgment for defendant district attorney on plaintiff’s wrongful termination claim based on defendant firing plaintiff as an investigatorial assistant after plaintiff’s unsuccessful candidacy for sheriff, because: (1) plaintiff did not show that he was discharged for any reason that contravenes public policy; (2) plaintiff was not restrained by defendant from running for public office, making any speech, or engaging in a protected activity which furthers a public policy; (3) as an at-will and exempt employee under N.C.G.S. § 126-5(cl)(2) based on his employment in the Judicial Department, plaintiff’s public opposition to his superior’s discretionary decisions and his inability to work cooperatively with law enforcement agencies with which the district attorney must communicate and coordinate on a daily basis is a legally sufficient reason for defendant to terminate plaintiff’s employment; (4) plaintiff did not allege that his candidacy for sheriff, speeches, and activities, for which he was allegedly terminated, resulted from his employer’s demand that he conduct some unlawful activity or was in retaliation for cooperating with a law enforcement agency conducting an investigation; (5) plaintiff’s allegations and evidence did not show how his candidacy for sheriff immunized his speech as political expression that is protected by a public policy exception to bar his termination when that speech publicly exuded insubordination and directly criticized his supervisor’s prosecutorial discretion whether to bring criminal charges; (6) plaintiffs public statements criticizing defendant’s discretionary decisions and the disruption of his office’s working relationship with law enforcement agencies were sufficient reasons, standing alone, to terminate plaintiff’s at-will employment; and (7) defendant’s decision to terminate plaintiff rested within his lawful and discretionary scope of authority under N.C.G.S. § 7A-69. 6. Civil Rights— § 1983 claim — failure to show deprivation of constitutionally protected rights The trial court erred by denying summary judgment for defendants on plaintiff’s 42 U.S.C. § 1983 claim, because: (1) plaintiff failed to show any public policy exception which cloaks him from termination of his at-will employment as an investiga-torial assistant who serves at the pleasure of the district attorney as provided by N.C.G.S. § 7A-69; (2) there is no genuine issue of material fact as to whether plaintiff was deprived of any rights, privileges, or immunities secured by the Constitution and laws as a terminated at-will employee of defendant district attorney (DA); (3) plaintiff’s right to say whatever he wanted was not restrained by defendant DA or anyone else; and (4) defendant DA had the right to terminate plaintiff’s employment for any reason, for no reason, or for an arbitrary or irrational reason so long as his actions did not violate a recognized public policy. 7. Damages and Remedies— punitive damages — summary judgment The trial court’s denial of defendants’ motions for summary judgment on the remainder of plaintiff’s claims, including those for punitive damages, that have not been previously dismissed are reversed. Judge Wynn concurring in part and dissenting in part. Appeals by defendants and cross appeals by plaintiff from order entered 26 February 2004 by Judge John O. Craig, III, in Randolph County Superior Court. Heard in the Court of Appeals 2 February 2005. Puryear and Lingle, P.L.L.C., by David B. Puryear, Jr., for plaintiff-appellee/cross-appellant. Attorney General Roy Cooper, by Assistant Attorney General Grady L. Balentine, Jr., for defendant-appellant/cross-appellee Garland N. Yates. Womble Carlyle Sandridge & Rice, A Professional Limited Liability Company, by Allan R. Gitter and Douglas R. Vreeland, for defendants-appellants/cross-appellees Litchard D. Hurley and Western Surety Company. TYSON, Judge. Garland N. Yates (“Yates”), Litchard D. Hurley (“Hurley”), and Western Surety Company (collectively, “defendants”) appeal from an order denying their motions for summary judgment. We affirm in part, reverse in part, and dismiss plaintiff’s complaint. I. Background From 7 January 1999 to 31 December 2002, Hugh Kevin Hines (“plaintiff’) worked as an investigatorial assistant in the district attorney’s office for 19-B Prosecutorial District. Plaintiff’s job duties included locating and interviewing witnesses, serving subpoenas for attendance at trials, and acting as a liaison between the district attorney’s office and law enforcement agencies. Prior to working for Yates, plaintiff worked as a lieutenant for the sheriff of Randolph County. During the 2002 election, plaintiff became a candidate in the republican primary election for sheriff of Randolph County and challenged Hurley, the incumbent sheriff. Over the course of the campaign, plaintiff publicly criticized Yates for his prosecutorial decisions in prior cases and publicly announced his disagreement with Yates’ decision to not criminally charge a sheriff’s deputy who had collided with a motorcyclist during a pursuit. The motorcyclist died from injuries sustained from the collision. Plaintiff also publically expressed his disagreement with the sheriff’s department’s investigation and handling of an unrelated and unsolved murder case. Plaintiff’s affidavit states that: Yates, on numerous occasions personally stated to me that he intended to discharge me from my employment . . . due to my seeking the office of Sheriff of Randolph County . . . after each occasion on which I made a public appearance or there was some news media attention in connection with my election campaign. After plaintiff appeared at a public event to express interest in running for the sheriffs position, plaintiff was instructed by Yates not to work on pending cases involving the Randolph County sheriffs department. In the primary election held 10 September 2002, Hurley defeated plaintiff, secured the republican party’s nomination, and won reelection as sheriff of Randolph County in the November general election. On 16 September 2002, less than one week after the primary election, plaintiffs annual employee performance report was completed. On 26 September 2002, Kay Lovin, Yates’ administrative assistant and plaintiff’s supervisor, informed plaintiff of his impending termination. Yates extended the termination date to 31 October 2002, and again to 31 December 2002, and offered plaintiff the opportunity to resign. Yates also offered to provide a reference to other law enforcement agencies. Plaintiff refused to resign and continued to criticize the sheriff’s department after the election. In his sworn affidavit, Yates stated, “[Plaintiff] continued to criticize the Sheriff and even accused him of voter fraud” and “stated pub-lically that he intended to run against the Sheriff again in 2006.” On 31 December 2002, plaintiff received a separation notice from Yates stating as grounds that “[e]mployee is no longer able to function effectively in his position. To wit: cooperate and maintain an effective and confidential relationship with all law enforcement agencies in the judicial district.” Yates listed as a second reason for plaintiff’s separation as “[e]mployee further directly criticized supervisor’s decision in the media concerning a law enforcement matter.” Plaintiff instituted this action seeking damages from defendants for various torts: (1) wrongful discharge against Yates in both his official and individual capacity; (2) malicious interference with contractual relations against Hurley; (3) violation of plaintiff’s State constitutional rights by Yates and Hurley in their official capacities; (4) violation of plaintiff’s federal constitutional rights under 42 U.S.C. § 1983 against Yates and Hurley in their official and personal individual capacities; and (5) claims for punitive damages for Hurley’s and Yates’ conduct in their official and personal individual capacities. Plaintiff asserted claims against Western Surety Company on Hurley’s official bond. Defendants answered and asserted defenses of sovereign immunity, qualified immunity, and that plaintiff was an “at will employee.” Defendants moved for summary judgment. Hurley’s sworn affidavit, filed with his motion for summary judgment, admits he asked Yates to reassign plaintiff from the sheriffs department’s cases due to “[his] concern that a conflict of interest was arising by plaintiff’s reportedly questioning crime victims as to whether they were satisfied with response times, friendliness, etc. of deputy investigators ... for the time during the election campaign.” Hurley denies requesting Yates to terminate plaintiff. Yates’ sworn affidavit states, “[a]t no time did Sheriff Hurley or anyone on his behalf ask me to fire [plaintiff], I made the decision.” The trial court granted defendants’ motions regarding: (1) “plaintiff’s first claim for relief as against defendant Yates in his official capacity and in his individual and personal capacity” (wrongful discharge); (2) “plaintiff’s third claim for relief as against defendant Hurley in his official capacity and in his individual and personal capacity” (denial of State constitutional rights); (3) “plaintiff’s third claim for relief as against defendant Yates in his official capacity, but not as against defendant Yates in his individual and personal capacity” (denial of State constitutional rights); (4) “plaintiff’s fourth claim for relief as against defendant Yates in his official capacity for all forms of relief except injunctive relief, but not as against defendant Yates in his individual and personal capacity” (denial of federal constitutional rights under color of State law); (5) “plaintiff’s sixth claim for relief as against defendant Yates in his official capacity, but not as against defendant Yates in his individual and personal capacity” (punitive damages); and (6) plaintiff’s sixth claim for relief as against defendant Hurley in his official capacity but not as against defendant Hurley in his individual and personal capacity (punitive damages). The trial court denied defendants’ motions for summary judgment on plaintiff’s: (1) second claim of relief for malicious interference with contractual relations against Hurley; (2) injunctive relief for violation of plaintiff’s State constitutional rights by Yates in his individual and personal capacities; (3) violation of plaintiff’s federal constitutional rights under 42 U.S.C. § 1983 against Yates in his individual and personal capacities limited to injunctive relief; (4) plaintiff’s fifth claim for relief on the sheriff’s bond against Western Surety Company (for wrongful conduct by Hurley in his official capacity as sheriff); and (5) punitive damages against both Hurley and Yates in their individual and personal capacities. Defendants appeal and plaintiff cross appeals. II. Issues The common issues presented by defendants are whether the trial court erred in denying defendants’ summary judgment motions on plaintiffs claims for violation under 42 U.S.C. § 1983 and punitive damages. Defendants Hurley and Western Surety separately assert the trial court erred in denying summary judgment on plaintiffs malicious interference with contractual relations as plaintiff failed to allege a waiver of immunity. Plaintiff assigned cross assignments of error on the granting of defendants’ motions for summary judgment dismissing plaintiffs claims for: (1) wrongful discharge by Yates; (2) punitive damage charge against Hurley in his official capacity; (3) all forms of relief except injunction in regards to his 42 U.S.C. § 1983 action; and (4) punitive damages against Yates and Hurley in their official capacities. Except for the trial court’s granting Yates summary judgment and dismissing plaintiff’s claims for wrongful discharge, plaintiff’s arguments in his brief assert solely alternative grounds to support the trial court’s partial summary judgment in his favor. Plaintiff abandoned his remaining cross assignments of error by not arguing them in his brief. N.C. R. App. P. 28(a) (2004); Summers v. City of Charlotte, 149 N.C. App. 509 n.8, 562 S.E.2d 18 n.8 (2002). Also, plaintiff’s cross appeals, except the wrongful discharge, are interlocutory and are dismissed. N.C. R. App. P. 10 (2004). III. Interlocutory Appeal Defendants’ appeal of an order denying their motions for summary judgment is interlocutory. However, “this Court has repeatedly held that appeals raising issues of governmental or sovereign immunity affect a substantial right sufficient to warrant immediate appellate review.” Price v. Davis, 132 N.C. App. 556, 558-59, 512 S.E.2d 783, 785 (1999) (citations omitted). We recognize the non-prevailing party’s right to immediate review because “ ‘the essence of absolute immunity is its possessor’s entitlement not to have to answer for his conduct in a civil damages action.’ ” Id. (quoting Epps v. Duke University, Inc., 122 N.C. App. 198, 201, 468 S.E.2d 846, 849, disc. rev. denied, 344 N.C. 436, 476 S.E.2d 115 (1996) (citing Herndon v. Barrett, 101 N.C. App. 636, 639, 400 S.E.2d 767, 769 (1991))). Defendants’ answer and arguments assert the affirmative defense of immunity and qualified immunity. This appeal is properly before this Court. Id. IV. Standard of Review . In a motion for summary judgment, the movant has the burden of establishing that there are no genuine issues of material fact. The movant can meet the burden by either: “1) Proving that an essential element of the opposing party’s claim is nonexistent; or 2) Showing through discovery that the opposing party cannot produce evidence sufficient to support an essential element of his claim nor [evidence] sufficient to surmount an affirmative defense to his claim.” Price v. Davis, 132 N.C. App. 556, 559, 512 S.E.2d 783, 786 (1999) (citing Messick v. Catawba County, 110 N.C. App. 707, 712, 431 S.E.2d 489, 492-93, disc. rev. denied, 334 N.C. 621, 435 S.E.2d 336 (1993)). When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. N.C. Gen. Stat. § 1A-1, Rule 56(e) (2003). V. Interference with Contract Hurley asserts the trial court erred in its order denying his motion for summary judgment on plaintiffs claim against him for malicious interference with contractual relations in his official and individual capacity. We agree. The five essential elements a plaintiff must show for a viable claim for malicious interference with contract are: (1) a valid contract existed between plaintiff and a third person, (2) defendant knew of such contract, (3) defendant intentionally induced the third person not to perform his or her contract with plaintiff, (4) defendant had no justification for his or her actions, and (5) plaintiff suffered damage as a result. Wagoner v. Elkin City Schools’ Bd. of Education, 113 N.C. App. 579, 587, 440 S.E.2d 119, 124 (1994) (citing McLaughlin v. Barclays American Corp., 95 N.C. App. 301, 308, 382 S.E.2d 836, 841, cert. denied, 325 N.C. 546, 385 S.E.2d 498 (1989); Uzzell v. Integon Life Ins. Corp., 78 N.C. App. 458, 463, 337 S.E.2d 639, 643 (1985), cert. denied, 317 N.C. 341, 346 S.E.2d 149 (1986)). Plaintiffs complaint alleges “[a]t all times herein alleged, Hurley was the duly elected Sheriff of Randolph County.” Plaintiff’s claim for malicious interference with contractual relations asserts Hurley “acted without any proper purpose related to his duties as Sheriff . . . solely for reasons of ill will and malice ... to intentionally and maliciously cause defendant Yates to terminate plaintiffs employment.” Hurley argues public official immunity and qualified immunity bar this claim. “Governmental immunity protects the governmental entity and its officers or employees sued in their ‘official capacity.’ ” Taylor v. Ashburn, 112 N.C. App. 604, 607, 436 S.E.2d 276, 279 (1993) (quoting Whitaker v. Clark, 109 N.C. App. 379, 382, 427 S.E.2d 142, 144, disc. rev. and cert. denied, 333 N.C. 795, 431 S.E.2d 31 (1993)), cert. denied, 336 N.C. 77, 445 S.E.2d 46 (1994). We have held “absent an allegation to the effect that immunity has been waived, the complaint fails to state a cause of action.” Clark v. Burke C

SYLVIA YOUSE, Plaintiff-Appellant v. DUKE ENERGY CORPORATION, Defendant-Appellee No. COA04-797 (Filed 5 July 2005) 1. Appeal and Error— violations of appellate rules — issues clear — no dismissal Violations of the Rules of Appellate Procedure did not result in dismissal of the appeal where the Court of Appeals was able to determine the issues on appeal and defendant was put on sufficient notice of the issues. 2. Collateral Estoppel and Res Judicata— federal and state claims — identical underlying factual issues Collateral estoppel barred plaintiff’s state claims for discrimination in the termination of her employment based on age and disability where her companion federal case had determined identical underlying factual issues. 3. Collateral Estoppel and Res Judicata— negligent infliction of emotional distress — prior federal determination Collateral estoppel barred plaintiffs state claim for negligent infliction of emotional distress based on breach of public policy on age and disability discrimination. A federal court had already determined that no age or disability discrimination occurred in her termination. 4. Collateral Estoppel and Res Judicata— claim splitting— collateral estoppel not waived A defendant does not waive collateral estoppel by consenting to claim splitting. 5. Collateral Estoppel and Res Judicata— federal action — not simultaneous A federal action filed on the same day as a state action was not a subsequent or simultaneous action for collateral estoppel where the federal action was complete by the time the state action was heard. Judge Tyson dissenting. Appeal by plaintiff from order and judgment entered 11 February 2004 by Judge Anderson Cromer in Superior Court, Guilford County. Heard in the Court of Appeals 2 February 2005. Hicks McDonald Noecker LLP, by David W. McDonald, for plaintiff-appellant. Constangy, Brooks & Smith, LLC, by John J. Doyle, Jr. and Jill Stricklin Cox, for defendant-appellee. McGEE, Judge. Sylvia Youse (plaintiff) was employed by Duke Energy Corporation (defendant) from 8 October 1984 to 21 March 2002. Plaintiff became a Quality Assurance Analyst (QAT Analyst) for defendant on 1 June 1999. The QAT Analyst job description contained the following provision: I. POSITION PURPOSE Monitors and evaluates the quality of inbound telephone calls. Document[s] quality issues and performance measures for management review .... Provide [s] information to assist in the feedback and formal education process of individuals on the phone. Provides subject matter expertise regarding call segment processes and call criteria. Informal feedback and auditing of non-call work is also summarized and audited to assure quality issues are addressed. II. MAJOR ACCOUNTABILITIES/ESSENTIAL DUTIES 2. . . . B. Maintains appropriate relationships and credibility-needed to assure that quality scores are used effectively to improve performance of Customer Service Specialists. Plaintiff and her husband owned a house in Mebane, North Carolina (the Mebane house), which they leased to their son and daughter-in-law. Defendant provided electrical service to the Mebane house. Plaintiffs son and daughter-in-law arranged to move out of the Mebane house in February 2002. Electrical service was scheduled to be changed from plaintiffs daughter-in-law’s name to plaintiffs name on 18 February 2002. However, the electrical service was disconnected on 11 February 2002. Plaintiff telephoned defendant on 11 February 2002 and inquired as to why the electrical service was not working. Plaintiff spoke with customer service representative Demishie Grier (Grier), who informed plaintiff that the electrical service had been disconnected for non-payment. Plaintiff and Grier began to disagree as to whether the electrical service should be turned back on. When plaintiff asked to speak with a supervisor, Grier stated that Grier could not transfer the call but would have a supervisor call plaintiff. Plaintiff stated that she could not be called back since she was on a cell phone and had an unreliable connection. Plaintiff and Grier thereafter ended their telephone conversation. Plaintiff then telephoned call service response and spoke with Billy Kingry (Kingry), a service response specialist. Plaintiff had originally hired Kingry to work for defendant and was Kingry’s former supervisor. Plaintiff asked Kingry to look at the Mebane house account and told him that she needed electrical service at the Mebane house. Kingry then arranged to have the electrical service turned back on at the Mebane house. This reconnection of the electrical service was in violation of defendant’s “non-pay reconnect” guidelines, which provide that a reconnect of an account is only available once payment has been made on the account. Kingry told Yolanda Peterson (Peterson), a HR Consultant for defendant, that he did “ma[k]e an exception for [plaintiff] because of [Kingry and plaintiff’s] previous relationship and [plaintiff’s] knowledge of how things work.” The following day, on 12 February 2002, defendant determined that the electrical service at the Mebane house had been erroneously reconnected. The account was scheduled for another non-pay disconnect, and a disconnect notice was delivered to the Mebane house. Peterson received an email on 18 February 2002 from Dawn Morrison (Morrison), plaintiffs supervisor. The email stated that plaintiff may have engaged in “very inappropriate conduct.” The email also recommended that an investigation take place. Peterson began an investigation into plaintiff’s conduct, during which Peterson interviewed numerous individuals and reviewed the history of the Mebane house account. Plaintiff was removed from defendant’s employment on 8 March 2002 pending the completion of Peterson’s investigation. During the course of the investigation, Peterson learned that in January 2002, plaintiff had accessed her daughter-in-law’s account at the Mebane house. This activity was in violation of defendant’s procedures which prohibit employees from working on their own, their co-workers,’ or their family members’ electrical service accounts. Peterson also determined that plaintiff’s conduct, when plaintiff spoke with Grier, included “hostile and intimidating statements” and an “attempt to persuade . . . Grier to circumvent established call procedures.” Finally, Peterson found that plaintiff “circumvent[ed] . . . customer service processes” when she called Kingry directly in an effort to restore the electrical service, and that she made false statements to Kingry about the Mebane house account. Due to this conduct, Peterson determined that plaintiff was unable to satisfy the requirements of her position as a QAT Analyst. Peterson found that plaintiff compromised her credibility and her relationship with [defendant’s] employees when she completely disregarded the very same customer service procedures that she was charged with administering, made intimidating statements to a customer service specialist and service response employee, and abused her position [with defendant] to achieve her own personal objectives. Peterson recommended to Lynetta Chisolm (Chisolm), General Manager of Customer Contact Services, that plaintiff be discharged. Chisolm agreed, and plaintiffs employment with defendant was terminated on 21 March 2002. Plaintiff filed a complaint against defendant on 20 September 2002, alleging wrongful termination in violation of public policy based on age and handicap discrimination, negligent infliction of emotional distress, a violation under the Wage and Hour Act, N.C. Gen. Stat. § 95-25.1-95-25.25, and punitive and special damages. That same day, plaintiff filed a complaint in the United States District Court for the Middle District of North Carolina (Middle District) alleging identical facts to those in the state court complaint. The complaint filed in the Middle District alleged violations of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621-634, the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101-12213, and the Employment Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001-1461. Defendant filed a motion for summary judgment in the Middle District case on 24 October 2003. In an order and recommendation dated 15 December 2003, a magistrate judge recommended that defendant’s motion for summary judgment be granted. Youse v. Duke Energy Corporation, 1:02CV00808 (M.D.N.C. 2003). Plaintiff objected to the recommendation, and a district court judge made a de novo determination of the magistrate judge’s recommendation. See 28 U.S.C. § 636 (b)(1) (2004). The district court judge adopted the magistrate judge’s recommendation and ordered that defendant’s motion for summary judgment be granted as to all claims on 23 January 2004. Defendant filed a motion for summary judgment in state court on 21 January 2004. The trial court granted defendant’s motion in an order entered 11 February 2004. Plaintiff appeals. I. We first address defendant’s argument that plaintiff’s appeal should be dismissed due to plaintiffs violations of the North Carolina Rules of Appellate Procedure. Defendant specifies that plaintiff has violated the Rules by: (1) failing to reference the record page numbers on which her assignments of error appear, see N.C. R. App. P. 28(b)(6); (2) referencing the incorrect assignment of error in support of Argument D in her brief, see id.; (3) using argumentative language when summarizing the facts of the case, see N.C. R. App. P. 28(b)(5); (4) failing to reference pages of the transcript or record on appeal in connection with her factual assertions, see id.; (5) failing to include relevant portions of statutes in the Appendix to her brief, see N.C. R. App. P. 28(d)(1)(c); (6) using the incorrect font size for the footnotes in her brief, see N.C. R. App. P. 26(g); (7) providing the improper citations for several of the authorities on which plaintiff’s brief relies, see N.C. R. App. P. 28(b)(6); and (8) filing her Appeal Information Statement two weeks after the date her brief was due to be filed, see N.C. R. App. P. 41(b)(2). Although we recognize that plaintiff failed to comply with several of our Rules of Appellate Procedure, we do not find that dismissal of the appeal is proper in this case. Despite the Rules violations, we are able to determine the issues in this case on appeal. Furthermore, we note that defendant, in filing a brief that thoroughly responds to plaintiffs arguments on appeal, was put on sufficient notice of the issues on appeal. See Viar v. N.C. Dep’t of Transportation, 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005). Since plaintiffs Rules violations are not “so egregious as to invoke dismissal^]” Symons Corp. v. Insurance Co. of North America, 94 N.C. App. 541, 543, 380 S.E.2d 550, 552 (1989), we elect to review the significant issues of this appeal pursuant to N.C. R. App. P. 2. See Symons, 94 N.C. App. at 543, 380 S.E.2d at 552. II. Plaintiff’s first assignment of error, contends that the trial court erred in granting summary judgment in favor of defendant on plaintiffs claim of wrongful discharge against public policy. The trial court’s order stated the following: 1. Defendant is entitled to summary judgment on plaintiff’s claim of wrongful discharge against public policy. . . . The same issues that are dispositive of plaintiff’s claim of wrongful discharge against public policy already have been litigated to final judgment by the [Middle District] in plaintiff’s companion lawsuit against defendant.... Therefore, plaintiff’s claims in this state court proceeding are barred by the doctrine of collateral estoppel. Summary judgment is appropriate 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. Gen. Stat. § 1A-1, Rule 56(c) (2003). The moving party to a summary judgment motion can prevail by showing that “the other party cannot overcome an affirmative defense which would bar the claim.” Caswell Realty Assoc. v. Andrews Co., 128 N.C. App. 716, 720, 496 S.E.2d 607, 610 (1998). Collateral estoppel is an affirmative defense. See N.C. Gen. Stat. § 1A-1, Rule 8 (2003); Johnson v. Smith, 97 N.C. App. 450, 453, 388 S.E.2d 582, 584, disc. review denied, 326 N.C. 596, 393 S.E.2d 878 (1990). Collateral estoppel prevents “the subsequent adjudication of a previously determined issue, even if the subsequent action is based on an entirely different claim.” Whitacre P’ship v. Biosignia, Inc., 358 N.C. 1, 15, 591 S.E.2d 870, 880 (2004). An action is barred under the doctrine of collateral estoppel “even if the first adjudication is' conducted in federal court and the second in state court.” McCallum v. N.C. Coop. Extension Serv., 142 N.C. App. 48, 52, 542 S.E.2d 227, 231, disc. review denied, 353 N.C. 452, 548 S.E.2d 527 (2001). Collateral estoppel will apply when: “(1) a prior suit resulted] in a final judgment on the merits; (2) identical issues [were] involved; (3) the issue was actually litigated in the prior suit and necessary to the judgment; and (4) the issue was actually determined.” McDonald v. Skeen, 152 N.C. App. 228, 230, 567 S.E.2d 209, 211, disc. review denied, 356 N.C. 437, 571 S.E.2d 222 (2002) (citing Thomas M. McInnis & Assoc., Inc. v. Hall, 318 N.C. 421, 429-30, 349 S.E.2d 552, 557-58 (1986)). In determining what issues were actually litigated or decided by the earlier judgment, the court in the second proceeding is “ ‘free to go beyond the judgment roll, and may examine the pleadings and the evidence [if any] in the prior action.’ ” Miller Building Corp. v. NBBJ North Carolina, Inc., 129 N.C. App. 97, 100, 497 S.E.2d 433, 435 (1998) (alteration in original) (quoting 18 James W. Moore et al., Moore’s Federal Practice § 132.03 [4] [i] (3rd ed. 1997)). Although plaintiffs companion Middle District case was based on different legal claims than the case before us, the state court and Middle District cases involved identical underlying factual issues. “To the extent the U.S.-District Court ruled on these issues, plaintiff is barred from relitigating the issues in state court.” Williams v. City of Jacksonville Police Dep’t, 165 N.C. App. 587, 594, 599 S.E.2d 422, 429 (2004). We conclude that plaintiffs state law claim that she was discriminated against on the basis of her age and disability in violation of North Carolina’s public policy is barred by collateral estoppel. N.C. Gen. Stat. § 143-422.2 (2003) states: “It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination ... on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees.” Our Supreme Court has directed that “we look to federal decisions for guidance in establishing evidentiary standards and principles of law to be applied in discrimination cases.” Dept. of Correction v. Gibson, 308 N.C. 131, 136, 301 S.E.2d 78, 82 (1983); see also Brewer v. Cabarrus Plastics, Inc., 130 N.C. App. 681, 685-86, 504 S.E.2d 580, 584 (1998), disc. review denied, 350 N.C. 91, 527 S.E.2d 662 (1999). In this case, the Middle District considered plaintiff’s claims for both age discrimination under the ADEA, and disability discrimination under the ADA. While plaintiff argues that the Middle District never addressed the issue of whether North Carolina public policy was violated, plaintiff also “contends that her discharge was motivated by defendant’s discrimination based upon her age and disability,” the same factual issues decided by the Middle District. The Middle District granted summary judgment to defendant on plaintiff’s ADEA claim since, although plaintiff was able to establish a prima facie case of discrimination, defendant “ha[d] proffered substantial evidence of a legitimate, nondiscriminatory reason for [p]laintiff’s discharge, and [p]laintiff ha[d] failed to produce sufficient evidence that [defendant's proffered reason [wa]s a pretext for discrimination.” Specifically, the Middle District found that “[d]e-fendant’s evidence demonstrates that [p]laintiff violated [defendant’s] policy against working orders to a relative’s account, engaged in inappropriate behavior with a customer service specialist over the telephone, and abused her status as a QAT analyst and former supervisor to circumvent established company procedures.” -Since the Middle District determined that plaintiff had failed to prove that defendant’s preferred reason for plaintiff’s termination was a pretext for discrimination, plaintiff’s state law claim based on the same factual allegation of age discrimination is collaterally estopped. Similarly, the Middle District granted summary judgment to defendant on plaintiff’s ADA claim. The Middle District found that plaintiff had failed to even establish a prima facie case of disability discrimination: Plaintiff has not offered any further evidence of actions by [defendant] which would tend to show resentment of or animus towards [p]laintiff because of her “disability.” Rather, the record evidence demonstrates a long history of accommodations by [defendant] for [plaintiff’s personal and health needs. Furthermore, [p]laintiff admits that no one at [defendant] ever made any derogatory remarks about her health. Again, since the Middle District determined that plaintiff had failed to prove, under the ADA, that she was discriminated against based on her disability, we find that plaintiff’s state law claim based on the same factual allegation of disability discrimination is collaterally estopped. We also find that collateral estoppel bars plaintiffs claim for negligent infliction of emotional distress. To establish a claim for negligent infliction of emotional distress, a plaintiff must prove that: “(1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress . . . , and (3) the conduct did in fact cause the plaintiff severe emotional distress.” Johnson v. Ruark Obstetrics, 327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990). To prove that a defendant “negligently engaged in conduct,” a plaintiff must show: (1) a legal duty; (2) a breach of that duty; and (3) that damages were proximately caused by such breach. Tise v. Yates Construction Co., 345 N.C. 456, 460, 480 S.E.2d 677, 680 (1997). In this case, plaintiff claims that defendant breached its duty to plaintiff to not violate the public policy of North Carolina by discriminating against her on the basis of her age and disability. However, as stated above, the Middle District determined that defendant did not discriminate against plaintiff on either the basis of her age or disability. Assuming arguendo that defendant had a duty to plaintiff to not violate the public policy of North Carolina, the Middle District has already determined that a breach of such duty did not occur. Therefore, plaintiffs claim for negligent infliction of emotional distress is collaterally estopped. Plaintiff argues that defendant has waived its right to a collateral estoppel defense because defendant failed to oppose plaintiffs strategy of filing two different lawsuits. Plaintiff contends that defendant, by not objecting to the Middle District action on the grounds of prior pending action, waived a collateral estoppel defense. In support of her argument, plaintiff cites Bockweg v. Anderson, 333 N.C. 486, 428 S.E.2d 157 (1993) and Howerton v. Grace Hospital, 130 N.C. App. 327, 502 S.E.2d 659 (1998). We find Bockweg and Howerton inapplicable to this case. First, neither Bockweg nor Howerton involved the doctrine of collateral estoppel, or issue preclusion, but rather involved the doctrine of res judicata, or claim preclusion. Bockweg, 3

WENDY WHITT v. HARRIS TEETER, INC. and RANDY SHULTZ No. 416A04 (Filed 1 July 2005) Employer and Employee— constructive wrongful discharge— sexual harassment — public policy — directed verdict for employer The decision by the Court of Appeals that the trial court erred by granting a directed verdict for defendant employer on a claim for constructive wrongful discharge in violation of public policy based upon sexual harassment is reversed for the reasons stated in the dissenting opinion that (1) a claim of constructive discharge based upon either a hostile work environment or in retaliation is not authorized under the public policy exception to the employee-at-will doctrine, and (2) even if a constructive discharge claim is so authorized, plaintiff presented insufficient evidence on the element of the claim that defendant employer’s handling of plaintiff’s complaints of sexual harassment amounted to a deliberate attempted to make her workplace so intolerable that she would resign. Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 165 N.C. App. 32, 598 S.E.2d 151 (2004), reversing a judgment entered upon a directed verdict on 2 April 2002 by Judge Sanford L. Steelman, Jr. in Superior Court, Forsyth County. Heard in the Supreme Court 18 May 2005. Kennedy, Kennedy, Kennedy and Kennedy, L.L.P., by Harvey L. Kennedy, Harold L. Kennedy, III, and Annie Brown Kennedy, for plaintiff-appellee. Womble Carlyle Sandridge & Rice, by Lucretia D. Guia, and J. Mark Sampson, for defendant-appellant Harris Teeter, Inc. Patterson Harkavy LLP, by Burton Craige, for North Carolina Association of Women Attorneys, North Carolina Academy of Trial Lawyers, Southern States Police Benevolent Association, Inc., North Carolina Police Benevolent Association, Inc., and North Carolina Association of Educators; Suzanne Reynolds for North Carolina Association of Women Attorneys, and Charles E. Daye for North Carolina Academy of Trial Lawyers, amici curiae. PER CURIAM. For the reasons stated in the dissenting opinion, the decision of the Court of Appeals is reversed. REVERSED.