Wrongful Termination Cases

HOWARD H. PIERCE, SR., Plaintiff v. THE ATLANTIC GROUP, INC, d/b/a/ DZ ATLANTIC, DAY & ZIMMERMANN LLC OF PENNSYLVANIA and DAY & ZIMMERMAN LLC d/b/a/ DZ ATLANTIC GROUP and/or DZ ATLANTIC, and DUKE ENERGY CAROLINAS, LLC, Defendants No. COA11-494 (Filed 21 February 2012) 1. Employer and Employee—wrongful discharge—Retaliatory Employment Discrimination Act—initiation of inquiry The trial court did not err by dismissing plaintiff’s complaint under N.C.G.S. § 1A-1, Rule 12(b)(6) for violation 'of the Retaliatory Employment Discrimination Act. Plaintiff called defendant Duke’s ethics hotline to report the retaliatory treatment he had been receiving and not to report a concern regarding occupational health and safety in the context of his employment with defendant Atlantic. These allegations were insufficient to constitute the initiation of an inquiry pursuant to N.C.G.S. § 95-241(a). 2. Employer and Employee—wrongful discharge—failure to show violation of law or public policy The trial court did not err by dismissing plaintiffs wrongful discharge claim. Plaintiff’s allegations failed to show that defendants ever violated their Occupational Safety and Health Adminstration obligations, including 13 N.C. Admin. Code 07F .0901, et seq., and plaintiff’s assertions that defendants’ termination of his employment violated law or public policy based on provisions of the administrative code that were yet to become effective did not remedy this deficiency in plaintiff’s pleadings. 3. Emotional Distress—negligent infliction of emotional distress—intentional infliction of emotional distress The trial court did not err by dismissing plaintiff’s claims of negligent and intentional infliction of emotional distress. Plaintiff’s statement that he began to experience serious on and off the job stress that severely affected his relationship with his wife and family members was insufficient to support these claims. 4. Libel and Slander—libel per se—failure to allege email or report susceptible of two meanings—libel per quod The trial court did not err by dismissing plaintiff’s defamation claim. Plaintiff’s complaint, alleging that defendant falsely contended that plaintiff falsified his time card or reported plaintiff to the Nuclear Regulatory Commission did not set forth a cause of action for libel per se. Further, plaintiff’s complaint was insufficient to state a claim because the complaint did not allege that the email or report were susceptible of two meanings. Finally, plaintiff’s allegation that the alleged defamation damaged plaintiff’s economic circumstances did not fairly inform defendants of the scope of plaintiff’s libel per quod claim. Appeal by plaintiff from order entered 3 February 2011 by Judge Robert F. Floyd, Jr., in Robeson County Superior Court. Heard in the Court of Appeals 27 October 2011. Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner, and Behan Law, by Kathleen A. Behan, for the plaintiff Littler Mendelson, P.C., by Jerry H. Walters, Jr., and Julie K. Adams, for defendant, The Atlantic Group, Inc. d/b/a/ DZ Atlantic. Ogletree, Deakins, Nash, Smoak & Stewart, P.G., by Robert M. Bisanar and Michael L. Wade, Jr., for defendant, Duke Energy Carolinas, LLC. THIGPEN, Judge. The employment of Howard H. Pierce, Sr., (“Plaintiff”) was terminated by The Atlantic Group, Inc., et al., (“Defendant Atlantic”). Defendant Atlantic is an engineering, construction and maintenance contractor providing services to Duke Energy Carolinas, LLC, (“Defendant Duke Energy”) (together, “Defendants”). Plaintiff filed a complaint alleging the following: In terminating Plaintiffs employment, Defendants violated the Retaliatory Employment Discrimination Act; Plaintiff was wrongfully discharged in violation of public policy and N.C. Gen. Stat. § 95-126, et seq., which governs the occupational health and safety of North Carolina employees; Defendants’ actions amounted to negligent and intentional infliction of emotional distress; and Defendants defamed Plaintiff. On appeal, we must determine whether the trial court erred by dismissing Plaintiffs complaint pursuant to Defendants’ Rule 12(b)(6) motion. We affirm the order of the trial court. I: Factual and Procedural Background The record tends to show the following: Plaintiff was hired by Defendant Atlantic in 2001, and held numerous positions with Defendant Atlantic, including supervisor, certified crane operator, and rigger. Over the course of eight years with Defendant Atlantic, Plaintiff was promoted from the position of rigger to lifting rigger supervising coordinator. Plaintiff’s pay was, over time, increased to the rate of forty-four dollars per hour. Plaintiff reported to both Defendant Atlantic and Defendant Duke Energy. In February 2009, Plaintiff received a memorandum from Defendant Duke Energy alerting employees that new regulations, 13 N.C. Admin. Code 07F .0901, et seq., would affect crane operators and riggers, requiring them to be certified. The regulations were scheduled to take effect on 1 October 2009. Plaintiff brought the memorandum to the attention of his supervisors and proposed a process by which the operators could be trained and certified in a way which would not interfere with the operations of the plant during its busiest times. Plaintiff did not receive a response to his proposal. Plaintiff, however, continued to raise the issue of certification on a weekly basis, but Plaintiffs proposal and concerns were not addressed. In late March 2009, Defendant Atlantic asked Plaintiff to take a twenty-eight day vacation break from his position at the McGuire Duke Energy Nuclear Power Plant (“McGuire”) where he was currently working. On 30 March 2009, Plaintiff began his vacation, expecting to return to his former position as supervisor at a pay rate of forty-four dollars per hour, as he was assured by a staffing employee with Defendant Atlantic, Ms. Angie Green (“Ms. Green”). Shortly after beginning his vacation, Plaintiff received a phone call from Ms. Green, who asked Plaintiff whether he would be willing to assist Defendant Atlantic in staffing a fueling outage at Oconnee Nuclear Power Plant (“Oconnee”). Plaintiff agreed to assist on the condition that Ms. Green contact his supervisors at both Defendant Atlantic and Defendant Duke Energy to ensure that he would not lose his supervisory level position and salary upon his return to McGuire. Ms. Green agreed. Ms. Green later contacted Plaintiff, explaining that his supervisors had approved, but for purposes of the Oconnee assignment, Plaintiff would only be paid twenty-seven dollars per hour. Plaintiff accepted the temporary pay reduction. Several weeks into the Oconnee assignment, Ms. Green contacted Plaintiff, requesting that Plaintiff return to McGuire as an advanced rigger rather than a supervisor, at a pay rate of twenty-eight dollars per hour. Plaintiff was informed that this demotion would be temporary until the conclusion of the “fall outage” period, at which time Plaintiff would return to his prior position. Plaintiff continued to be concerned about the certification of the operators as required by 13 N.C. Admin. Code 07F .0901, et seq., and “feared that Defendants’ explanations for his demotion in pay were a pretext in order to remove him from a supervisor position.” Plaintiff was told that since he was no longer a supervisor, “the issue of the certification was not his to address.” On 24 August 2009, Plaintiff called Defendant Duke Energy’s “ethics hotline” and reported the alleged “retaliatory treatment” he had received. Plaintiff believed the hotline was a confidential resource. However, Plaintiff was asked to provide his identity and the names of “persons who concerned him.” Plaintiff named Mike Henline (“Henline”) of Defendant Atlantic, Jimmy Shelton (“Shelton”) of Defendant Duke Energy, Donny Lawing (“Lawing”) of Defendant Duke Energy, Maurice Horn (“Horn”) of Defendant Duke Energy, and Joe Bates (“Bates”) of Defendant Duke Energy. Plaintiff called the hotline on multiple other occasions after his first call. During September of 2010, Plaintiff felt that “workplace conditions became increasingly adverse.” Specifically, Plaintiff felt that his schedule was being arbitrarily changed and interrupted, such that he could not get sufficient hours to support his family. On Friday, 19 September 2010, Plaintiff was advised that on Monday, 21 September 2010, Plaintiff would begin on the nightshift. As a result of the change, Plaintiff filled out his timecard on Friday morning—rather than Monday morning, as was his usual practice— estimating the hours he was required to work on Friday based on his instructions from Shelton. Shortly after filling out his timecard, Plaintiff learned that his wife had possibly had a heart attack, and she had been transported to the hospital. Plaintiff left the plant to go to the hospital and called Mr. Leroy Price (“Price”) to explain his absence. Price advised Defendant to “see to his wife, and ... the time card issues would be resolved the following week.” On the evening of 19 September 2009, a “Site Maintenance Lifting Coordinator” for Defendant Duke Energy sent an email to Defendant Atlantic stating, “I have document proof that [Plaintiff] has falsified his timesheet . . . [Henline] is in the process of pulling [Plaintiffs] badge.” However, at Plaintiffs, request, Henline later corrected Plaintiffs timecard and initialed his corrections. Henline assured Plaintiff that “he would suffer no adverse consequences from the mistakes in completing the card.” On Monday, 21 September 2009, Plaintiff called Henline and was told not to report for his shift but to come in the next day. Plaintiff was told “he would be written up but that the timecard would be corrected.” On 23 September 2009, Plaintiff was again told not to come in but to report the next morning. When Plaintiff arrived on 24 September 2009, Henline and Bates terminated Plaintiffs employment, asked him to return his badge, and removed Plaintiff from the premises. Plaintiff reviewed the documents regarding his termination and discovered that the basis of his termination was “falsification of a time-card[.]” Defendant Duke Energy reported Plaintiff to the Nuclear Regulatory Commission, barring Plaintiff from “unescorted access to facilities around the nation.” Plaintiff alleges this “per manently damag[ed] his reputation and his ability to obtain suitable similar employment.” Plaintiff appealed his termination in human resources, but his appeal was unsuccessful. On 16 August 2010, Plaintiff filed a complaint against Defendants. Both Defendant Duke Energy and Defendant Atlantic filed motions for an extension of time to file their answers, and both Defendants received a thirty day extension. Defendant Duke Energy filed their answer on 12 October 2010 and alleged that Plaintiffs complaint failed to state a claim upon which relief may be granted. Defendant Atlantic also filed an N.C. Gen Stat § 1A-1, 12(b)(6) motion to dismiss Plaintiffs complaint on 20 October 2010. On 17 November 2010, Plaintiff filed a motion to amend the complaint. In Plaintiffs amended complaint, also filed 17 November 2010, he realleges the following: Defendants violated the Retaliatory Employment Discrimination Act; Plaintiff was wrongfully discharged in violation of public policy and N.C. Gen. Stat. § 95-126, et seq., which governs the occupational health and safety of North Carolina employees; Defendants’ actions amounted to negligent and intentional infliction of emotional distress; and Defendants defamed Plaintiff. Defendant Duke Energy filed an additional N.C. Gen Stat § 1A-1, 12(b)(6) motion to dismiss on 28 November 2010. On 3 February 2011, the trial court entered an order granting Defendants’ N.C. Gen Stat § 1A-1, 12(b)(6) motion to dismiss Plaintiff’s complaint. From this order, Plaintiff appeals. II: Standard of Review “On a motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, the standard of review is whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory.” Stunzi v. Medlin Motors, Inc., _ N.C. App. _, _, 714 S.E.2d 770, 773 (2011) (quotation omitted). “The complaint must be liberally construed, and the court should not dismiss the complaint unless it appears beyond a doubt that the plaintiff could not prove any set of facts to support his claim which would entitle him to relief.” Id. (quotation omitted). Dismissal under Rule 12(b)(6) is proper when one of the following three conditions is satisfied: “(1) the complaint on its face reveals that no law supports the plaintiff’s claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiff’s claim.” Id. at _, 714 S.E.2d at 773-74. III: Motion to Dismiss In Plaintiffs argument on appeal, he contends the trial court erred by dismissing his complaint against Defendants pursuant to Defendants’ N.C. Gen Stat § 1A-1, 12(b)(6) motion. Specifically, Plaintiff argues that the allegations in each of the five counts in Plaintiffs complaint, treated as true, are sufficient in this case to state a claim upon which relief may be granted. We address each count in turn, and ultimately conclude the trial court did not err by dismissing Plaintiffs complaint. A: Retaliatory Employment Discrimination Act Plaintiff first contends the trial court erred by dismissing Plaintiffs allegation that Defendants violated the Retaliatory Employment Discrimination Act (“REDA”). We disagree. N.C. Gen. Stat. § 95-241(a) (2011) provides that “[n]o person shall discriminate or take any retaliatory action against an employee because the employee in good faith does or threatens to . . . [f]ile a claim or complaint, initiate any inquiry, investigation, inspection, proceeding or other action, or testify or provide information to any person with respect to . . . Article 16 of this Chapter[,]” the Occupational Safety and Health Act of North Carolina (“OSHA”), N.C. Gen. Stat. § 95-126 (2011), et. seq. “In order to state a claim under REDA, a plaintiff must show (1) that he exercised his rights as listed under N.C. Gen. Stat. § 95-241(a), (2) that he suffered an adverse employment action, and (3) that the alleged retaliatory action was taken because the employee exercised his rights under N.C. Gen. Stat. § 95-241(a).” Wiley v. UPS, Inc., 164 N.C. App. 183, 186, 594 S.E.2d 809, 811 (2004) (citation omitted). An adverse action includes “the discharge, suspension, demotion, retaliatory relocation of an employee, or other adverse employment action taken against an employee in the terms, conditions, privileges, and benefits of employment.” N.C. Gen. Stat. § 95-240(2) (2011). “If plaintiff presents a prima facie case of retaliatory discrimination, then the burden shifts to the defendant to show that he ‘would have taken the same unfavorable action in the absence of the protected activity of the employee.’ ” UPS, Inc., 164 N.C. App. at 186, 594 S.E.2d at 811. (quoting N.C. Gen. Stat. § 95-241(b)). “Although evidence of retaliation in a case such as this one may often be completely circumstantial, the causal nexus between protected activity and retaliatory discharge must be something more than speculation.” Id. at 187, 594 S.E.2d at 811 (quotation omitted). In this case, the parties do not dispute that Plaintiff “suffered an adverse employment action[.]” Id. at 186, 594 S.E.2d at 811. However, the parties dispute whether Plaintiff “exercised his rights as listed under N.C. Gen. Stat. § 95-241(a)” and whether “the alleged retaliatory action was taken because the employee exercised his rights under N.C. Gen. Stat. § 95-241(a).” Id. Plaintiff contends he exercised his rights as listed under N.C. Gen. Stat. § 95-241 (a) by “initiating] any inquiry. . . with respect to” OSHA. N.C. Gen. Stat. § 95-241(a). Specifically, Plaintiff states that he initiated an inquiry when he “submitted a proposed plan that would provide certification of the crane operators in compliance with the upcoming regulatory change.” Plaintiff further contends, “[t]hereafter, [Plaintiff] complained to his [Defendant Atlantic] and [Defendant Duke Energy] supervisors weekly of [Defendants] failure to begin certifying crane operators.” Plaintiffs complaint alleges the following with regard to Plaintiffs initiation of an inquiry pursuant to N.C. Gen. Stat. § 95-241(a): 34. Defendants’ decision to terminate [Plaintiffs] employment was in retaliation for his making complaints and providing information with regard .to an ongoing workplace situation with regard to Occupational Safety and Health issues affecting nuclear power facilities in North Carolina operated by Defendants, including but not limited to the McGuire Nuclear Facility. 35. By communicating with his supervisors on numerous occasions concerning safety and health and training issues, and with the Duke Ethics Hotline, [Plaintiff] exercised his rights as listed under N.C. Gen. Stat. § 95-241(a). Our Courts have not defined or addressed what it means to “initiate [an] inquiry” pursuant to N.C. Gen. Stat. § 95-241(a) with respect to OSHA. Id. We find the logic of several decisions of federal courts persuasive authority as to the definition of initiating an inquiry. See State v. McDowell, 310 N.C. 61, 74, 310 S.E.2d 301, 310 (1984) (stating that federal decisions, with the exception of the United States Supreme Court, are not binding upon this Court; however, State courts should treat “decisions of the United States Supreme Court as binding and accordf] to decisions of lower federal courts such persuasiveness as these decisions might reasonably command”); see also Signature Dev., LLC v. Sandler Commer. at Union, L.L.C., _ N.C. App. _, _, 701 S.E.2d 300, 307 (2010) (stating; “[a]lthough, as an unpublished case, [it] does not establish binding legal precedent, we are persuaded by [the] Court’s reasoning in that case”). The United States District Court for the Middle District of North Carolina addressed the question of what it means to initiate an inquiry pursuant to N.C. Gen. Stat. § 95-241(a) in the context of OSHA in Jurrissen v. Keystone Foods, LLC, 2008 U.S. Dist. LEXIS 63901, 15-16 (2008). The Court stated: As noted, REDA states that no person shall take any retaliatory action against an employee because the employee “file[s] a claim or complaint, initiate[s] any inquiry, investigation, inspection, proceeding or other action, or testifies] orprovidefs] information to any person with respect to . . . [OSHANC].” N.C. GEN. STAT. § 95-241(a) (emphasis added). By its plain language, it is clear that REDA does not limit protected activities to the sole act of filing a formal claim under OSHANC. At the other end of the-spectrum, however, courts have held that merely talking to an internal supervisor about potential safety concerns is not a “protected activity” under REDA. Id.; see also, e.g., Delon v. McLaurin Parking Co., 367 F. Supp. 2d 893, 902, aff’d, 146 Fed. Appx. 655 (2005) (“The complaint that Plaintiff made to [a manager] [i]s not . . . protected under REDA[;] [r]ather, it was merely a complaint to a manager about a supervisor”); Cromer v. Perdue Farms, Inc., 900 F. Supp. 795, 801 n.6 (1994), aff’d, 1995 U.S. App. LEXIS 25327 (1995) (explaining that “North Carolina has never recognized a cause of action for wrongful discharge in favor of employees who orally complained to their employers about unsafe working conditions” and noting that the plaintiff “did not initiate a complaint with the Occupational Safety and Health Review Commission or threaten to initiate any such complaint”); Whitings v. Wolfson Casing Corp., 173 N.C. App. 218, 222, 618 S.E.2d 750, 753 (2005) (holding the plaintiff’s act of requesting that her employer pay for a medical evaluation of a work-related inj

CHARISSA YOUNG, Plaintiff v. KIMBERLY-CLARK CORPORATION, FRED HART, individually and BRETT SAMUELS, individually, Defendants No. COA11-1020 (Filed 21 February 2012) 1. Appeal and Error—interlocutory orders and appeals—substantial right—compelling discovery Plaintiff’s appeal from an interlocutory discovery order requiring her to produce information and documents, which she claimed were protected by various privileges, affected a substantial right and was immediately appealable. 2. Discovery—medical records—emotional distress claim— waiver The superior court did not abuse its discretion in a wrongful termination case by ordering the production of plaintiff’s medical records that allegedly involved purely physical conditions unrelated to her mental or emotional condition. Plaintiff’s arguments were speculative and hypothetical. Further, the statutory privileges accorded communications between a patient and various medical providers is impliedly waived if the patient brings a claim for emotional distress since this type of claim places her medical condition at issue. 3. Discovery—names of persons contacted by counsel—work-product doctrine inapplicable—identification The trial court did not err in a wrongful termination case by requiring plaintiff to disclose the names of persons contacted by her counsel even though plaintiff contended it violated the work-product doctrine and her right against disclosure of trial witnesses until prior to trial. Contrary to plaintiff’s assertion, the order only required plaintiff to comply with her already existing discovery obligations and merely required identification of the persons contacted. 4. Discovery—tax returns—mitigation defense—loss of past and future earnings—certification The trial court did not err in a wrongful termination case by ordering plaintiff to disclose her tax returns even though plaintiff contended the information contained in them was available from other sources. Information from the tax returns was relevant to the subject matter as it related to both the mitigation defense of the party seeking discovery and plaintiffs claim for loss of past and future earnings. Further, plaintiffs own certification as to her income was available only on the income tax returns themselves. Appeal by plaintiff from order entered 28 February 2011 by Judge Gary M. Gavenus in Superior Court, Haywood County. Heard in the Court of Appeals 9 February 2012. Law Offices of Glen C. Shults, by Glen G. Shults, for plaintiff-appellant. Goldsmith, Goldsmith & Dews, P.A., by G. Frank Goldsmith, Jr., for defendants-appellees. STROUD, Judge. Charissa Young (“plaintiff’) appeals from an order compelling discovery of medical records and information, identification of persons contacted by plaintiff or her counsel as to her claim, and plaintiffs federal and state income tax returns. For the reasons stated below, we affirm. I. Background Plaintiff was employed by defendant Kimberly-Clark Corporation from “in or about 1991” until June 2008, when plaintiff alleges that she was wrongfully terminated by defendant Kimberly-Clark, as a result of her filing a workers’ compensation claim for a compensable injury she suffered on 5 December 2007. Plaintiff filed a complaint against the Kimberly-Clark Corporation; Fred Hart, individually; and Brett Samuels, individually (collectively referred to herein as “defendants”) on 30 June 2009, alleging claims against defendant Kimberly-Clark for violation of the Retaliatory Employment Discrimination Act (N.C. Gen. Stat. § 95-240 et seq.) and wrongful discharge in violation of public policy and claims against all three defendants for gross negligence, negligent infliction of emotional distress, and tortious interference with a contract. Plaintiff sought damages including both past and future “lost wages, bonus payments, employment benefits, and interest” as well as “compensatory damages for emotional distress and/or pain and suffering[.]” On 3 January 2011, defendant Kimberly-Clark filed a motion to compel discovery from plaintiff “regarding Plaintiff’s health care providers and her physical and mental health;” identification of “all individuals from whom Plaintiff has obtained a statement or affidavit and ... all Kimberly-Clark employees who have been contacted in connection with Plaintiffs claim;” and “copies of Plaintiff’s tax returns from January 1, 2007 to the present.” On 28 February 2011, the trial court entered an order allowing in part and denying in part defendant Kimberly-Clark’s motion to compel discovery from plaintiff. Plaintiff timely appealed from this order. II. Interlocutory order The order compelling discovery is an interlocutory order, and interlocutory orders are normally not immediately appealable. Mims v. Wright, 157 N.C. App. 339, 341, 578 S.E.2d 606, 608 (2003). Orders that are interlocutory are subject to immediate appeal when they affect a substantial right of a party. [Mims v. Wright, 157 N.C. App. 339, 341, 578 S.E.2d 606, 608 (2003)] “ ‘[W]hen, as here, a party asserts a statutory privilege which directly relates to the matter to be disclosed under an interlocutory discovery order, and the assertion of such privilege is not otherwise frivolous or insubstantial, the challenged order affects a substantial right. . . .’ ” Id. (quoting Sharpe v. Worland, 351 N.C. 159, 166, 522 S.E.2d 577, 581 (1999)). Midkiff v. Compton, 204 N.C. App. 21, 24, 693 S.E.2d 172, 174, cert. denied, 364 N.C. 326, 700 S.E.2d 922 (2010). Because plaintiff claims that the discovery order requires her to produce information and documents which are protected by various privileges, the order affects a substantial right and is immediately appealable. See Sharpe v. Worland, 351 N.C. 159, 165-66, 522 S.E.2d 577, 580-81 (1999). III. Standard of Review When reviewing a trial court’s ruling on a discovery issue, our Court reviews the order of the trial court for an abuse of discretion. Midgett v. Crystal Dawn Corp., 58 N.C. App. 734, 737, 294 S.E.2d 386, 388 (1982) (noting that ordinarily, orders relating to discovery are addressed to the discretion of the trial court and are to be reviewed for abuse of discretion). “Abuse of discretion results where the court’s ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988). Midkiff, 204 N.C. App. at 24, 693 S.E.2d at 175. On appeal plaintiff argues that the trial court erred in ordering her to produce (1) her medical records; (2) the names of persons contacted by her counsel; and (3) her tax returns. IV. Medical records The trial court’s order compelling discovery addressed defendant’s request for production of plaintiffs medical records as follows: 1. Interrogatories 4 and 5. Document Production Requests 15 and 16. These requests seek information and records concerning plaintiff’s medical treatment (including treatment for mental or emotional conditions) within the ten years prior to service of the requests. Plaintiff refused to provide any such information except for the period after December 5, 2007, when she injured her knee at work. The Court finds defendant’s requests to be proper and to be within the scope of discovery as set forth in Rule 26, N.C.R. Civ. P, as plaintiff has placed her mental and emotional health in issue by asserting a claim for infliction of emotional distress and by seeking emotional distress damages in other claims in this action, and her medical records may reasonably be sources of information on that issue. In addition, plaintiff’s medical condition is relevant to her ability to earn income from other employment. However, the Court, in its discretion, finds that five years from service of the requests, rather than the ten years sought by defendant, is a reasonable period for the scope of defendant’s request, absent a showing that a longer period is necessary for the discovery of such information. Defendant’s motion to compel discovery as to these requests is, therefore, ALLOWED, and plaintiff is ORDERED to answer fully Interrogatories 4 and 5, and to produce the documents requested in Document Production Requests 15 and 16 (or to execute a release permitting defendant to obtain them), except that such answers and production shall cover the period beginning five years prior to service of the requests. Plaintiff shall answer the interrogatories and produce the requested documents or executed release as soon as possible, so as not to delay further this litigation, and in any event within ten days from the entry of this order. Plaintiff first argues that the “superior court erred in ordering the production of plaintiffs medical records that involve purely physical conditions, which are unrelated to her mental or emotional condition.” Plaintiff contends that the trial court failed to draw a distinction between records regarding “purely physical conditions that caused no emotional distress” and physical conditions which did cause emotional distress. Plaintiff notes that “[t]he medical records would presumably show whether Young experienced any emotional distress for any of the physical or emotional conditions for which she sought treatment, and only those records should be produced.” (emphasis added). She argues at length about the failure of the trial court to make any “finding of a causal or historical relationship between Plaintiffs emotional distress claims and the records ordered to be produced.” Defendants counter that the trial court did not abuse its discretion in compelling plaintiff to produce her medical records as she waived the patient-physician privilege when she brought an action which placed her medical condition at issue. Even if we assume arguendo that the trial court could make any sort of clear distinction between “purely physical conditions” and physical conditions which cause emotional distress based merely upon perusal of medical records—a proposition we sincerely doubt—we first note that in order for the trial court to make this type of determination as to the information which may be revealed in plaintiffs medical records, plaintiff would have had to produce the records to the trial court for in camera review; this she did not do. Plaintiffs arguments in this regard are speculative and hypothetical. In addition, our Court has held specifically that the statutory privileges accorded communications between a patient and various medical providers is impliedly waived if the patient brings a claim for emotional distress, as this type of claim places her medical condition at issue. North Carolina has created by statute a privilege for communications between a physician and patient. See N.C. Gen. Stat. § 8-53 (2005) (for doctors); see also N.C. Gen. Stat. § 8-53.3 (2005) (for psychologists); N.C. Gen. Stat. § 8-53.7 (2005) (for social workers); N.C. Gen. Stat. § 8-53.8 (2005) (for counselors). “It is the purpose of such statutes to induce the patient to make full disclosure that proper treatment may be given, to prevent public disclosure of socially stigmatized diseases, and in some instances to protect patients from self-incrimination.” Sims v. Charlotte Liberty Mut. Insurance Co., 257 N.C. 32, 36, 125 S.E.2d 326, 329 (1962). The privilege “extends, not only to information orally communicated by the patient, but to knowledge obtained by the physician or surgeon through his own observation or examination while attending the patient in a professional capacity, and which was necessary to enable him to prescribe.” Smith v. John L. Roper Lumber Co., 147 N.C. 62, 64, 60 S.E. 717, 718 (1908). This patient-physician privilege is not absolute, however, and may be waived, either by express waiver or by waiver implied from the patient’s conduct. Mims v. Wright, 157 N.C. App. 339, 342, 578 S.E.2d 606, 609 (2003). We have recognized that a patient impliedly waives this privilege when she opens the door to her medical history by bringing an action, counterclaim, or defense that places her medical condition at issue. Id. at 342-43, 578 S.E.2d at 609. Here, by bringing a claim for emotional distress, which alleges that defendants’ actions caused decedent to withdraw from her college studies and caused an overall loss in decedent’s enjoyment of life, we find that plaintiff has placed decedent’s mental health and history of substance abuse at issue. Thus, plaintiff has impliedly waived the patient-physician privilege conferred by § 8-53 et seq. Spangler v. Olchowski, 187 N.C. App. 684, 691, 654 S.E.2d 507, 512-13 (2007). The trial court did not abuse its discretion by ordering plaintiff’s production of the requested medical records for a period beginning five years prior to service of the discovery request. Plaintiff’s argument is without merit. V. Attorney work product Plaintiff next argues that the trial court’s order “requiring plaintiff to disclose the names of persons contacted by her counsel violates the work-product doctrine, and plaintiff’s right against disclosure of trial witnesses until prior to trial.” Defendants counter that plaintiffs argument “inaccurately characterizes” the trial court’s order because the order does not require her to disclose information protected by the attorney work product doctrine but “only requires [her] to comply with her already existing discovery obligations.” The trial court’s order regarding this issue states as follows: 2. Interrogatories 17 and 18. These interrogatories ask the plaintiff for information about current or former employees of the defendant that she or anyone on her behalf (such as her counsel) has contacted regarding her claims in this action, and about any persons from whom she has obtained any verbal or written statement or affidavit. Plaintiff objected to these questions and refused to answer them insofar as they seek information obtained by her counsel, contending that such information is protected by the attorney work product doctrine. The Court notes that in Interrogatory 2, defendant asked plaintiff to identify all persons having knowledge or information relating to the subject matter of this action, and plaintiff answered that interrogatory and agreed to supplement her response as additional information is obtained. The Court finds that supplemental answers to Interrogatory 2 will satisfy defendant’s need for most, if not all, of the information requested in Interrogatories 17 and 18. Therefore defendant’s motion to compel answers to Interrogatories 17 and 18 is DENIED, except that plaintiff is ORDERED to supplement her answers to Interrogatory 2 by providing the information requested in that interrogatory as to all persons having knowledge or information relating to the subject matter of this action, including persons contacted by plaintiff or her counsel; regardless of whether the information supports one side or the other. Plaintiff, citing generally Wright, Miller & Marcus, Federal Practice & Procedure: Civil § 2028, argues that “[t]he work-product doctrine protects from disclosure the identities of persons contacted by a party’s counsel, absent showing of a particular need.” Even if this treatise were a binding authority for this Court—and it is not—plaintiff’s argument mischaracterizes the content of Section 2028. Plaintiff cites no applicable authority in support of this argument and her argument entirely ignores the definition of the work product doctrine as set forth by North Carolina’s courts. In Boyce & Isley, PLLC v. Cooper, 195 N.C. App. 625, 673 S.E.2d 694, disc. review denied, 363 N.C. 651, 686 S.E.2d 512 (2009), this Court clearly stated the circumstances under which the attorney work product doctrine applies: In order to successfully assert protection based on the work product doctrine, the party asserting the protection . . . bears the burden of showing (1) that the material consists of documents or tangible things, (2) which were prepared in anticipation of litigation or for trial, and (3) by or for another party or its representatives which may include an attorney, consultant ... or agent. [Isom v. Bank of Am., N.A., 177 N.C. App. 406, 412-13, 628 S.E.2d 458, 463 (2006)] (citations and internal quotation marks omitted; second alteration in original). Although not a privilege, the exception is a “qualified immunity” and extends to all materials prepared “in anticipation of litigation or for trial by or for another party or by or for that other party’s consultant, surety, indemnitor, insurer, or agent. ” The protection is allowed not only [for] materials prepared after the other party has secured an attorney, but those prepared under circumstances in which a reasonable person might anticipate a possibility of litigation. Materials prepared in the ordinary course of business are not protected, nor does the protection extend to facts known by any party. Willis v. Power Co., 291 N.C. 19, 35, 229 S.E.2d 191, 201 (1976) (citations omitted). “[N]o discovery whatsoever of [work product containing] the ‘mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party’ concerning the litigation at bar ... is permitted under [N.C.R. Civ. P. 26(b)(3)].” Id. at 36, 229 S.E.2d at 201 (citation omitted). However, documents that constitute work product but that do not contain or reflect the aforementioned input of an attorney or other representative may be discoverable “[u]pon a showing of ‘substantial need’ and ‘undue hardship’ involved in obtaining the substantial equivalentf.]” Id. “In the interests of justice, the trial judge may require in camera inspection and may allow discovery of only parts of some documents.” Id. Id. at 637-38, 673 S.E.2d at 702 (emphasis in original). The portion of the trial court’s order which is at issue in this appeal required plaintiff to identify “all persons having knowledge or information relating to the subject matter of this action, including persons contacted by plaintiff or her counsel. . . .” The identification of a person is clearly not (1) a “document[] or tangible thing[], (2) which [was] prepared in anticipation of litigation or for trial, and (3) by or for another party or its representatives which may include an attorney, consultant ... or agent.” See id. The trial court’s order does not require the production of any witness statements which may have been taken by plaintiffs counsel or any information at all beyond identification of the persons contacted. Therefore, we find no abuse of discretion. Plaintiff, citing King v. Koucouliotes, 108 N.C. App. 751, 425 S.E.2d 462 (1993), also argues that “[u]nder North Carolina law, a party may discover the names of the opposing party’s trial witnesses at the pretrial conference, and even earlier in the litigation upon a showing of particular need[,]” and that as defendant Kimberly Clark has shown no particular need, it is not entitled to discovery. (Emphasis added.) This is true, but irrelevant. The trial court’s order does not require plaintiff to identify persons she may call as witnesses at trial; it requires identification of persons contacted, “regardless of whether the information supports one side or the other.” This argument is also without merit. VI. Income tax returns The last portion of the trial court’s order challenged by plaintiff provides as follows: 3. Document Production Request 9. This request asked plaintiff to produce documents reflecting her income from January 1, 2007, through the conclusion of this action, including her state and federal income tax returns. The Court finds that this request is proper, reasonable in scope, and reasonably calculated to lead to the discovery of admissible evidence, inasmuch as plaintiff’s earnings from other employment are relevant to the issue of whether she has mitigated her alleged damages, and the inclusion of income from the year 2007 is necessary to provide a baseline against which to measure income received in s