MEMORANDUM OPINION AND RECOMMENDATION

WALLACE DIXON, Magistrate Judge

This matter is before the court on Defendant's motion to dismiss Plaintiff's First Amended Complaint [docket no. 18]. Because there has been no consent, the motion must be handled by way of recommended disposition. For the reasons set forth below, it will be recommended that Defendant's motion be granted with respect to the claims for intentional and negligent infliction of emotional distress, and denied with respect to Plaintiff's REDA and wrongful discharge claims.

I. PROCEDURAL BACKGROUND

On January 17, 2008, Plaintiff Thomas Jurrissen filed a complaint against Defendant in Rockingham County Superior Court. On February 27, 2008, Defendant removed the action to this court based on diversity of citizenship. On April 3, 2008, Defendant filed a motion to dismiss Plaintiff's Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. On April 18, 2008, Plaintiff filed a First Amended Complaint. On May 8, 2008, Defendant filed a motion to dismiss the First Amended Complaint. Because the First Amended Complaint superseded the original Complaint and mooted Defendant's first motion to dismiss, Defendant's second motion to dismiss is now pending before the court.

In the First Amended Complaint, Plaintiff brings the following claims: (1) a claim under the North Carolina Retaliatory Employment Discrimination Act, N.C. GEN. STAT. § 95-240 et seq. (2003); (2) a claim for wrongful discharge in violation of public policy; (3) a claim for negligent infliction of emotional distress; and (4) a claim for intentional infliction of emotional distress.

II. FACTS

The facts which follow are assumed to be true for purposes of Defendant's motion to dismiss.

Plaintiff Thomas Jurrissen is a former employee of Defendant Keystone Foods and worked at Defendant's plaint in Reidsville, North Carolina. (First Amended Compl. ¶ 5.) Plaintiff was employed by Defendant from June 30, 1993, until he was fired on August 30, 2007. ( Id. ¶¶ 5, 11.) Over the course of his employment with Defendant, Plaintiff rose from a maintenance employee to maintenance supervisor. ( Id.) As maintenance supervisor, Plaintiff was responsible for the oversight of about ten or more employees on the third shift of Defendant's operations. ( Id.)

Defendant processes several million "Chicken McNuggets" each day at the Reidsville plant for southeastern McDonald's restaurants. The nuggets are formed from chicken meat that is ground, blended, formed, battered, breaded, fried, frozen, and then packaged. Defendant operates the plant five or six days a week and employs around 300 people in two production shifts and one cleanup shift, which is the "third" shift. The cleanup shift is charged with ensuring the safety, health, and maintenance of the machinery and operations at the Reidsville plant. ( Id. ¶ 6.) When Defendant terminated Plaintiff's employment, Plaintiff was working as a supervisor for the cleanup shift. ( Id.) Plaintiff alleges that he was terminated "as a direct result of his engaging in conduct that was lawful and protected, and in the best interests of the company by reporting safety, health, maintenance and other violations to management." ( Id. ¶ 7.)

On August 29, 2007, Plaintiff spoke with an auditor/inspector, who was at the Reidsville plant to conduct an internal secondary audit of Defendant's operations. ( Id. ¶ 8.) Plaintiff alleges upon information and belief that the audit was being conducted "to verify that remedial measures had been taken with regard to certain serious sanitation, safety and maintenance problems identified in a previous audit with the purpose of, among other things, promoting safety, health and public welfare." ( Id.) Plaintiff alleges that on August 29, 2007, he discussed with the auditor/inspector certain issues that he previously raised with supervisors internally, and which Defendant had failed to remedy. ( Id. ¶ 9.) In particular, Plaintiff discussed with the auditor/inspector safety and maintenance concerns with regard to metal safety guards attached to the mixers and blenders used to process Chicken McNuggets. ( Id.) Plaintiff also discussed his concerns related to the welding on those metal pieces and other metal equipment. He also relayed concerns about the safety and cleanliness of metal pieces from the "dumpers" (including the acceptability of the type of metal product used relative to other products on the market); and chronic water leakage issues (that affected the safety of both the food and the workers at the plant). ( Id.)

Plaintiff further alleges that he had not simply raised concerns about occupational and food safety issues on August 29, 2007, but that he had also "sought with diligence in the past to bring these issues to the attention of more senior management, and to propose safe and acceptable solutions for remedial action." ( Id. ¶ 10.) Plaintiff alleges that when he raised these concerns, his recommendations were not followed, and that once he began raising these concerns he "experienced retaliatory and pre-textual reviews from a supervisor." ( Id.)

On August 30, 2007, Plaintiff was terminated from his position as Maintenance Supervisor. ( Id. ¶ 11.) Plaintiff's termination was effectuated by Human Resources Manager Laurel Hale and Maintenance Supervisor Whit Whitley. ( Id.) While Hale and Whitley were notifying Plaintiff that his employment was being terminated, Hale and Whitley "criticized Plaintiff for his conversations with the auditor" and Hale "derided Plaintiff for his judgment in providing truthful and accurate information to the auditor." ( Id. ¶ 12.) Plaintiff further alleges that Hale subsequently "sought to obfuscate the basis for Plaintiff's termination based upon pretextual reasons." ( Id.)

Plaintiff alleges that before and at the time of termination he suffered from a DSM-diagnosed disorder that was directly related both to workplace stress and his wife's serious condition. ( Id. ¶ 13.) Plaintiff alleges that Defendant was at all relevant times aware of these stressors and the "peculiar" effects these stressors had on Plaintiff's emotional/mental state. ( Id.) Plaintiff alleges that he has "suffered physical and emotional harm as a result of the stressful working conditions and retaliation he was subjected to at Keystone Foods." ( Id. ¶ 14.) Plaintiff also alleges that the stress he endured while employed with Defendant caused injury to his family, including Plaintiff's wife, who suffers from a serious medical condition. ( Id.) Finally, Plaintiff alleges that in addition to retaliating against him by firing him, Defendant also retaliated against him by causing his unemployment benefits to be denied for two months.

Denial of Unemployment Benefits

After his termination, Plaintiff filed for unemployment compensation benefits. On September 21, 2007, Plaintiff's benefits were denied under N.C. GEN. STAT. § 96-14(2) for a period of between four and thirteen weeks, based on a conclusion that Plaintiff "was discharged for substantial fault connected with the work" because of "poor job performance by no [sic] taking the responsibilities of a supervisor" because he "made inaccurate statements to an internal auditor but didn't think that those statements could jeopardize his job"; and because he "contacted the union regarding an issue that should have been handle[d] through the HR department but the claimant wasn't sure of the process." ( Id. ¶ 15.) Plaintiff alleges "upon information and belief" that Defendant provided inaccurate information to the North Carolina Employment Security Commission ("ESC") so that the Commission would deny Plaintiff's claim for unemployment compensation. ( Id.)

Plaintiff appealed the ESC decision. ( Id. ¶ 16.) The ESC subsequently issued an Appeals Decision, reversing in part the underlying denial. In that Decision, the ESC found that Defendant had terminated Plaintiff for failing to meet company expectations including, among other things, because he violated company policy because he spoke with an inspector without speaking with a member of management. The Decision also found that "claimant performed his job [to] the best of his ability." The Decision concluded that the prohibition on speaking to the inspector was company policy. Id.

Based on the above allegations, Plaintiff brings the following claims against Defendant: (1) a claim under the North Carolina Retaliatory Employment Discrimination Act ("REDA"), N.C. GEN. STAT. ¶ 95-241 et seq.; (2) a claim for wrongful discharge in violation of public policy; (3) negligent infliction of emotional distress; and (4) intentional infliction of emotional distress. Plaintiff seeks compensatory damages, treble damages in accordance with N.C. GEN. STAT. § 95-243(c), punitive damages, and attorney's fees and costs.

III. DISCUSSION

Motion to Dismiss

The purpose of a 12(b)(6) motion is to test the sufficiency of the complaint, not for the court to decide the merits of the action. Schatz v. Rosenberg, 943 F.2d 485, 489 (4^th Cir. 1991); Food Lion, Inc. v. Capital Cities/ABC, Inc., 887 F. Supp. 811, 813 (M.D.N.C. 1995). At this stage of the litigation, a plaintiff's well-pleaded allegations are taken as true, and the complaint, including all reasonable inferences therefrom, is liberally construed in the plaintiff's favor. McNair v. Lend Lease Trucks, Inc., 95 F.3d 325, 327 (4^th Cir. 1996).

Generally, the court looks only to the complaint itself to ascertain the propriety of a motion to dismiss. See George v. Kay, 632 F.2d 1103, 1106 (4^th Cir. 1980). A plaintiff need not plead detailed evidentiary facts, and a complaint is sufficient if it will give a defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. See Bolding v. Holshouser, 575 F.2d 461, 464 (4^th Cir. 1978). This duty of fair notice under Rule 8(a) requires the plaintiff to allege, at a minimum, the necessary facts and grounds that will support his right to relief. See Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007). As the Supreme Court has recently instructed, although detailed facts are not required, "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (internal quotations omitted). With these principles in mind, the court now turns to the motion to dismiss.

Plaintiff's Claim under the North Carolina Retaliatory Employment Discrimination Act ("REDA")

Plaintiff brings a claim under the North Carolina Retaliatory Employment Discrimination Act ("REDA"). The North Carolina legislature enacted REDA to provide workers with a method to remedy unsafe and illegal working conditions without being punished by their employer. See Brown v. Sears Auto. Ctr., 222 F. Supp. 2d 757, 762 (M.D.N.C. 2002). The relevant language of REDA provides:

§ 95-241. Discrimination prohibited

(a) No person shall discriminate or take any retaliatory action against an employee because the employee in good faith does or threatens to do any of the following:

(1) File a claim or complaint, initiate any inquiry, investigation, inspection, proceeding or other action, or testify or provide information to any person with respect to any of the following:

. . .

b. . . . Article 16 of this Chapter [the Occupational Safety and Health Act of North Carolina ("OSHANC")].

(2) Cause any of the activities listed in subdivision (1) of this subsection to be initiated on an employee's behalf.

(3) Exercise any right on behalf of the employee or any other employee afforded by . . . Article 16 of this Chapter [OSHANC]. . . .

N.C. GEN. STAT. § 95-241. To state a claim under REDA, a plaintiff must allege that (1) he engaged in "protected activity"; (2) he suffered an adverse employment action; and (3) there is a causal connection between his protected activity and the adverse employment action. See Wiley v. UPS, 164 N.C. App. 183, 186, 594 S.E.2d 809, 811 (2004); see also Wilkerson v. Pilkington N. Am., Inc., 211 F. Supp. 2d 700, 707 (M.D.N.C. 2002).

In support of the motion to dismiss, Defendant contends that Plaintiff has not alleged that he filed any type of claim or complaint under OSHANC; initiated any kind of inquiry, investigation, inspection, proceeding or other action under OSHANC; or testified with respect to OSHANC, provided information to any governmental official, auditor, or inspector under OSHANC, initiated any of these actions on behalf of another employee, or exercised any specific right afforded by OSHANC. Defendant contends that "[i]nstead, Plaintiff bases his entire REDA claim on the incredibly narrow reed that he `provided information' to an internal Company auditor about `occupational health and safety' issues." (Def.'s Br. Supp. Mot. Dismiss, p. 7, emphasis in original.) Defendant does not dispute that Plaintiff has at least alleged a causal connection between his communication with the internal auditor and his termination. Indeed, Defendant admits that Plaintiff was fired for communicating with the auditor. ( See Def.'s Br. Supp. Mot. Dismiss, p. 4 n. 4.) The sole issue before this court, then, is whether, under the plain language of REDA, Plaintiff's allegations are sufficient to survive Defendant's motion to dismiss.

Defendant contends that Plaintiff's "internal conversation with a Company auditor regarding generalized issues of plant maintenance does not impact public policy and does not constitute `protected activity' under REDA." (Def.'s Br. Supp. Mot. Dismiss, p. 8.) Defendant further contends that there is "no precedent or authority which would permit a REDA claim to go forward on such a vague assertion of `protected activity.'" (Def.'s Br. Supp. Mot. Dismiss, p. 8.) Cf. Delon v. McLaurin Parking Co., 367 F. Supp. 2d 893, 902 (M.D.N.C. 2005) ("REDA prohibits any retaliatory discrimination against an employee who files a complaint or initiates an inquiry under certain North Carolina statutes."); see also Brown, 222 F. Supp. 2d at 762 (stating that filing a written complaint with OSHANC alleging unsafe conditions in the workplace is clearly a protected activity under REDA). Defendant further contends that Plaintiff's failure to cite a single provision of OSHANC in the complaint is also fatal to Plaintiff's claim. See Walker v. Westinghouse Elec. Corp., 77 N.C. App. 253, 263-64, 335 S.E.2d 79, 86 (1985) (on summary judgment, rejecting a claim premised on OSHANC where most of the plaintiff's safety concerns were actually based on unpleasant working conditions and where the plaintiff failed to allege a specific state or federal safety requirement that had been violated). Defendant contends that Plaintiff's allegations are therefore insufficient to state a claim under REDA.

In response, Plaintiff contends that he has sufficiently alleged that he engaged in protected activity under REDA. Plaintiff notes that one form of protected activity under REDA is providing "information with respect to" OSHANC. See N.C. GEN. STAT. § 95-241. Plaintiff contends that the First Amended Complaint alleges such activity. Specifically, Plaintiff alleges in the First Amended Complaint that on August 29, 2007, Plaintiff spoke with an auditor/inspector who was at the Reidsville plant to conduct an internal secondary audit of Defendant's operations, which "upon information and belief was in part to verify that remedial measures had been taken with regard to certain sanitation, safety, and maintenance problems identified in a previous audit with the purpose of, among other things, promoting safety, health, and public welfare." (Pl.'s Br. p. 6.) Plaintiff further notes that the First Amended Complaint further alleges that during Plaintiff's conversation with the auditor, Plaintiff discussed matters that he had previously raised with his supervisors internally, to no avail. ( Id.) In particular, Plaintiff discussed with the auditor/inspector safety and maintenance concerns with regard to metal safety guards attached to the mixers and blenders used to process Chicken McNuggets. Plaintiff also expressed his concerns related to (1) the welding on those metal pieces and other metal equipment; (2) the safety and cleanliness of metal pieces from the "dumpers"; and (3) chronic water leakage issues. Plaintiff notes that he was fired within a day of his discussion with the internal auditor, and that while he was being fired, Defendant's employees, including the Human Resources Manager, explicitly criticized him for speaking with the auditor about these issues, and his termination arose from and was related to his conversations with the auditor.

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 testif[ies] or provide[s] 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. Accord Smith v. Computer Task Group, Inc., ___ F. Supp. 2d ___, 2008 WL 2856414, at *9 (M.D.N.C. 2008) ("REDA covers a broader range of protected activities than just the filing of a claim, . . . including the "provi[sion of] information to any person with respect to the [North Carolina Workers' Compensation Act].") (alterations in original). 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. See, e.g., Delon, 367 F. Supp. 2d at 902 ("The complaint that Plaintiff made to [a manager] [i]s not . . . protected under REDA. Rather, it was merely a complaint to a manager about a supervisor."); see also Whiting v. Wolfson Casing Corp., 173 N.C. App. 218, 222, 618 S.E.2d 750, 753 (2005) (in discussing a wrongful discharge in violation of a public policy claim, the court stated that the plaintiff's act of requesting that her employer pay for a medical evaluation of a work-related injury was not a protected activity under the North Carolina Workers' Compensation Act); Cromer v. Perdue Farms, Inc., 900 F. Supp. 795, 801 n. 6 (M.D.N.C. 1994) (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").

The conduct alleged here appears to fall somewhere in between the act of merely commenting to a supervisor about alleged unsafe conditions and filing a formal claim under OSHANC. That is, rather than merely commenting about a safety concern to a supervisor, Plaintiff alleges that he specifically communicated with Defendant's internal auditor about an ongoing investigation into Defendant's health and safety practices. In the First Amended Complaint, Plaintiff alleges that Defendant retaliated against Plaintiff "for the exercise of his rights of protection under [REDA], specifically that he `provide[d] information with respect to' [OSHANC]"; that "Defendants' decision to terminate Plaintiff's employment was, inter alia, in retaliation of his providing information with respect to an ongoing investigation with regard to Occupational Safety and Health issues affecting [Defendant's] facility in North Carolina"; and that "[b]y communicating with Defendants' auditor regarding food and occupational health and safety, Plaintiff exercised his rights as listed under N.C. Gen. Stat. 95-241(a)." ( See First Amended Compl. ¶¶ 24-26.) These allegations, drawing all inferences in favor of Plaintiff, conceivably constitute the act of "initiat[ing] any inquiry, investigation, inspection, proceeding or other action, or testif[ying] or provid[ing] information to any person with respect to . . . [OSHANC]." N.C. GEN. STAT. § 95-241(a) (emphasis added).

In the exercise of caution, and because of the liberal standard of notice pleading, it is not appropriate to dismiss the REDA claim at this juncture. The parties should be allowed to conduct discovery to develop this claim and provide the court with more details regarding Plaintiff's communications with the internal auditor and to develop facts regarding the alleged "ongoing investigation" into Defendant's safety practices. Accord Crespo v. Delta Apparel, Inc., No. 5:07cv65-V, 2008 WL 2986279, at *6 (W.D.N.C. July 31, 2008) (where the plaintiff reported workplace hazards to his supervisors on numerous occasions, the court denied a motion to dismiss a wrongful discharge claim where the plaintiff had alleged violation of the public policy expressed in OSHANC, stating that "[p]laintiff's pleading does not preclude the possibility that a threat to take more formal action was a part of [the plaintiff's] `reporting' [of unsafe workplace conditions] to his employer" and leaving the issue to be resolved at summary judgment). For this reason, the motion to dismiss should be denied as to Plaintiff's REDA claim.

Plaintiff's Claim for Wrongful Discharge in Violation of Public Policy

In North Carolina, the employer-employee relationship is governed by the at-will employment doctrine, which provides that "in the absence of a contractual agreement between an employer and an employee establishing a definite term of employment, the relationship is presumed to be terminable at the will of either party without regard to the quality of performance of either party." Kurtzman v. Applied Analytical Indus., Inc., 347 N.C. 329, 331, 493 S.E.2d 420, 422 (1997). The North Carolina Supreme Court, however, has recognized a cause of action for wrongful discharge in violation of the public policy of North Carolina. See Coman v. Thomas Mfg. Co., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989). Although the North Carolina Supreme Court in Coman established the availability of a tort action for wrongful discharge in violation of public policy, the Court did not define what constituted "public policy" for purposes of such a claim. Id. The North Carolina Supreme Court subsequently observed in Amos v. Oakdale Knitting Co.:

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.

In the First Amended Complaint, Plaintiff alleges that he was terminated in violation of public policies expressed in (1) REDA; (2) the North Carolina Nonhazardous Solid Waste Management statute, N.C. GEN. STAT. § 130A-290 et al.; (3) the Public Health Law of North Carolina statute, N.C. GEN. STAT. § 130A-1 et al.; and (4) OSHANC. ( See First Am. Compl. ¶¶ 36-39.) Among other things, Plaintiff alleges that he was fired for reporting safety, health, maintenance, and other violations to management. (First Amended Compl. ¶ 7.) Specifically, he alleges that he spoke to an internal auditor who was at the plant to conduct a secondary audit of Defendant's operation to verify that remedial measures had been taken with regard to certain serious sanitation, safety, and maintenance problems identified in a previous audit "with the purpose of, among other things, promoting safety, health, and public welfare." ( Id. ¶ 8.) The North Carolina General Statutes regarding Nonhazardous Solid Waste Management are part of the Public Health Law of North Carolina and govern the disposal and management of solid, non-hazardous and hazardous waste and are aimed at ensuring that exceptionally hazardous solid waste is transported, disposed of, and treated in a manner adequate to protect human health, safety, welfare, and the environment. See N.C. GEN. STAT. § 130A-309.03. Moreover, the Public Health Law of North Carolina states that its mission is to, among other things, "promot[e] a safe and healthful environment." See id. § 130A-1.1.

First, since it will be recommended that the court deny the motion to dismiss as to the underlying REDA claim based on Plaintiff's assertion of his rights under OSHANC, it will be recommended that the court deny the motion to dismiss the wrongful discharge claim based on a violation of OSHANC. Next, with regard to Solid Waste Management and the Public Health Law of North Carolina, Defendant contends that Plaintiff has failed to allege how his termination violates or even implicates either of these laws. Such detail, however, is not required under notice pleadings; therefore, the motion to dismiss should be denied as to these claims as well. See, e.g., Deerman, 135 N.C. App. 1, 518 S.E.2d 804 (reversing a Rule 12(b)(6) dismissal of a wrongful discharge claim where a nurse alleged that she was terminated in violation of North Carolina's public policy of protecting public safety and health by ensuring competent levels of nursing care). For these reasons, Defendant's motion to dismiss the wrongful discharge claim should be denied.

Plaintiff's Claim for Negligent Infliction of Emotional Distress

To state a claim for negligent infliction of emotional distress in North Carolina, a plaintiff must allege (1) that the defendant engaged in negligent conduct; (2) that it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress; and (3) that the defendant's conduct, in fact, caused the plaintiff severe emotional distress. See Robblee v. Budd Servs., Inc., 136 N.C. App. 793, 795, 525 S.E.2d 847, 849 (2000). Defendant contends that Plaintiff has failed to state a claim for negligent infliction of emotional distress. For the following reasons, I agree.

In applying North Carolina law, courts have repeatedly held that a claim for negligent infliction of emotional distress that is based solely on a claim of intentional discrimination in the employment context cannot succeed. See, e.g., Sabrowski v. Albani-Bayeux, Inc., No. 1:02CV728, 2003 WL 23018827, at *5-6 (M.D.N.C. Dec. 19, 2003); Barbier v. Durham County Bd. of Educ., 225 F. Supp. 2d 617, 631 (M.D.N.C. 2002); Thomas v. N. Telecom, Inc., 157 F. Supp. 2d 627, 637 (M.D.N.C. 2000). The allegations in the First Amended Complaint clearly base the claim for negligent infliction of emotional distress on Defendant's alleged intentional discrimination and retaliation. For this reason, Plaintiff's claim for negligent infliction of emotional distress should be dismissed.

Plaintiff's Claim for Intentional Infliction of Emotional Distress

IV. CONCLUSION

Lorbacher v. Hous. Auth. of the City of Raleigh127 N.C. App. 663675-76 493 S.E.2d 7481Trought v. Richardson78 N.C. App. 758763 338 S.E.2d 617620Stanback v. Stanback, 297 N.C. 181196254 S.E.2d 611622Mullis v. Mechs. Farmers Bank 994 F. Supp. 680688Accord Trought v. Richardson78 N.C. App. at 763 338 S.E.2d at 620

For the reasons stated above, IT IS RECOMMENDED that Defendant's motion to dismiss [docket no. 18] with respect to the claims for intentional and negligent infliction of emotional distress be GRANTED, and that the motion to dismiss with respect to Plaintiff's REDA claim and the claim for wrongful discharge in violation of public policy be DENIED. Furthermore, the motion to dismiss the original complaint [docket no. 10] has been rendered moot since the First Amended Complaint superseded the original Complaint.