Opinion
No. COA12–1001.
2013-06-4
Randy BARBEE, Plaintiff, v. TRANSIT MANAGEMENT OF CHARLOTTE, INC., d/b/a Charlotte Area Transit System, Defendant.
Pamela A. Hunter for plaintiff-appellant. Smith Law Firm, P.C., by John Brem Smith, for defendant-appellee.
Appeal by plaintiff from order entered 6 June 2012 by Judge W. Robert Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 30 January 2013. Pamela A. Hunter for plaintiff-appellant. Smith Law Firm, P.C., by John Brem Smith, for defendant-appellee.
GEER, Judge.
Plaintiff Randy Barbee appeals from the trial court's order dismissing his claims for retaliatory discharge, wrongful termination, breach of contract, unfair and deceptive trade practices, and negligent supervision and retention. We hold that because the retaliatory discharge claim was preempted by the National Labor Relations Act (“NLRA”), the trial court properly dismissed that claim. The trial court also properly dismissed plaintiff's additional claims as barred by the statute of limitations or as failing to state a claim for relief. We therefore affirm the trial court's order.
Facts
From March 2004 to April 2008, plaintiff was employed as a mechanic for defendant Transit Management of Charlotte, Inc. d/b/a Charlotte Area Transit System. While employed by defendant, plaintiff filed several grievances against defendant regarding alleged violations of a collective bargaining agreement entered into between defendant and plaintiff's union, United Transportation Union. Plaintiff also filed a complaint against defendant for unfair labor practices with the National Labor Relations Board (“NLRB”). On 1 April 2008, defendant terminated plaintiff's employment.
On 13 October 2010, plaintiff filed a complaint against defendant asserting a single claim entitled “RETALIATORY DISCHARGE.” The complaint alleged that defendant terminated plaintiff's employment in retaliation for plaintiff's filing the grievances and unfair labor practice charge against defendant and that this termination constituted a wrongful discharge in violation of the State's public policy. On 30 December 2010, after defendant had filed a motion to dismiss and an answer, plaintiff voluntarily dismissed his complaint without prejudice.
On 15 December 2011, plaintiff filed a second complaint against defendant, again asserting a claim for retaliatory discharge, but adding claims for “WRONGFUL TERMINATION,” breach of contract, unfair and deceptive trade practices (“UDTP”), and negligent supervision and retention. On or about 8 February 2012, defendant filed an answer denying the material allegations of the complaint and a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Rules of Civil Procedure and for failure to state a claim for relief under Rule 12(b)(6).
On 6 June 2012, the trial court entered an order granting defendant's motion to dismiss. The trial court ordered the claim for retaliatory discharge “dismissed with prejudice pursuant to Rules 12(b)(1) and 12(b)(6) of the North Carolina Rules of Civil Procedure for lack of subject matter jurisdiction and failure to state a claim.” The trial court further ordered the claims for wrongful termination, breach of contract, UDTP, and negligent supervision and retention “dismissed with prejudice for failure to be filed within the applicable statute of limitations” pursuant to “North Carolina Gen.Stat. § 1–52 and Rule 41(a)(1) of the North Carolina Rules of Civil Procedure.” Plaintiff timely appealed to this Court.
I
We first address the trial court's dismissal of plaintiff's retaliatory discharge claim for lack of subject matter jurisdiction under Rule 12(b)(1) of the Rules of Civil Procedure. We review that order de novo. State ex rel. Cooper v. Seneca–Cayuga Tobacco Co., 197 N.C.App. 176, 181, 676 S.E.2d 579, 583 (2009).
Defendant has argued that the trial court lacked subject matter jurisdiction over the retaliatory discharge claim because that claim is preempted by the NLRA. As this Court has explained: “The National Labor Relations Act (NLRA), codified in 29 U.S.C. § 150 et seq., protects the rights of employees to engage in certain labor activities.” Venable v. GKN Auto., 107 N.C.App. 579, 581, 421 S.E.2d 378, 379 (1992). “The Act vests the National Labor Relations Board (NLRB) with exclusive jurisdiction over ... unfair labor practices defined in the Act. 29 U.S.C. §§ 159–160 (1988). Thus, in some cases, the NLRB will have exclusive jurisdiction over claims which would otherwise appear appropriate for state jurisdiction.” Id., 421 S.E.2d at 379–80 (emphasis added).
In his second complaint, plaintiff alleged, in support of his retaliatory discharge claim, that during the course of his employment, plaintiff filed several grievances against defendant for violations of the collective bargaining agreement and also filed an unfair labor practice charge against defendant with the NLRB. The complaint further alleged that plaintiff was terminated in violation of North Carolina public policy for filing grievances under the collective bargaining agreement and for filing an unfair labor practice charge with the NLRB.
Plaintiff argues that preemption should apply only to claims “revolv[ing] around the filing of a grievance” and not to claims “surround[ing] what happened to the plaintiff after he filed a grievance and a complaint with the National Labor Board, when he was wrongfully terminated in retaliation for his actions.” Plaintiff has misunderstood the controlling law.
Because termination for filing grievances under a collective bargaining agreement or NLRB charges arguably constitutes an unfair labor practice under the NLRA, preemption applies to plaintiff's wrongful discharge claim. See, e.g., Bimler v. Stop & Shop Supermarket Co., 965 F.Supp. 292, 299 (D.Conn.1997) (“Because the plaintiff's claim [for wrongful termination] involves conduct that is arguably prohibited under the NLRA, it falls within the primary and exclusive jurisdiction of the NLRB. This court, therefore, is without jurisdiction over this claim and the claim should be dismissed.”); Calabrese v. Tendercare of Mich., Inc., 262 Mich.App. 256, 262–63, 685 N.W.2d 313, 317 (2004) (holding that NLRA preempted wrongful discharge claim alleging that defendants fired plaintiff for refusing to discourage unionizing activities); Banfield v. Laidlaw Waste Sys., 977 S.W.2d 434, 438 (Tex.App.1998) (holding that NLRA preempted claims that plaintiffs were wrongfully discharged for union organizing activities).
Plaintiff points, however, to Chambers v. McLean Trucking Co., 550 F.Supp. 1335 (M.D.N.C.1981). Chambers, the sole authority cited by plaintiff in support of his claim, involved a suit by employees against their employers for breach of a collective bargaining agreement and against their union local for breach of the duty of fair representation. Id. at 1337. The primary issue before the district court was exhaustion of administrative remedies. Id. at 1345. Nothing in Chambers addressed or even alluded to preemption under the NLRA. Chambers does not, therefore, support reversal of the trial court's order.
Plaintiff also argues that an exception to preemption applies since the complaint specifically alleges that his discharge violated the State's public policy. This Court already rejected this argument in Venable, 107 N.C.App. at 583, 421 S.E.2d at 381:
Plaintiff argues that the state has subject matter jurisdiction in the present case because the state has a significant interest in discouraging unfair labor practices and because the defendant's behavior was in violation of state public policy. Although the state does have an interest in discouraging unfair labor practices, it is clear in the case at bar that [the defendant]'s actions constituted an unfair labor practice within the purview of Section 7 of the NLRA. The preemption analysis set forth in [International Longshoremen's Assoc. v. Davis, 476 U.S. 380, 389–90, 90 L.Ed.2d 389, 400, 106 S.Ct. 1904, 1911–12 (1986) ] is therefore applicable here; the trial court did not err in finding that it lacked jurisdiction over plaintiff's claims.
In light of Venable, plaintiff has not shown that any exception to preemption exists.
Accordingly, we hold that plaintiff's retaliatory discharge claim was preempted under the NLRA, and the trial court properly granted defendant's motion to dismiss that claim for lack of subject matter jurisdiction. See id. (holding trial court properly dismissed claim for lack of subject matter jurisdiction when claim arguably constituted unfair labor practice such that NLRB had exclusive jurisdiction over claim).
II
The trial court dismissed plaintiff's claims for wrongful termination, breach of contract, UDTP, and negligent supervision and retention as barred by the applicable statutes of limitation. In arguing that these claims were timely filed, plaintiff points to his initial complaint filed two and a half years after his discharge, his voluntary dismissal without prejudice pursuant to Rule 41 of the Rules of Civil Procedure, and his filing of a second complaint within a year of that dismissal. Plaintiff contends that because the claims for wrongful termination, breach of contract, UDTP, and negligent supervision “stem from the wrongful termination of the plaintiff by the defendant on April 1, 2008” and are not new causes of action, the claims “all relate back” to the original claim for retaliatory discharge set out in the initial complaint.
It is well established that “[u]nder North Carolina law, a plaintiff may refile within one year a lawsuit that was previously voluntarily dismissed, and the refiled case will relate back to the original filing for purposes of tolling the statute of limitations.” Losing v. Food Lion, L.L.C., 185 N.C.App. 278, 283, 648 S.E.2d 261, 264–65 (2007) “However, the ‘relate back’ doctrine applies only to ‘a new action based on the same claim ... commenced within one year[.]’ “ Id. at 284, 648 S.E.2d at 265 (quoting N.C.R. Civ. P. 41(a)(1)). Accordingly, “the Rule 41(a) tolling of the applicable statute of limitations applies only to the claims in the original complaint, and not to other causes of action that may arise out of the same set of operative facts.” Id.
In Losing, the plaintiff voluntarily dismissed his first complaint and then filed a second complaint, which included an invasion of privacy claim that was not part of the first lawsuit. Id. This Court held that the invasion of privacy claim—arising out of the same facts as the first complaint—did not relate back to the filing of the initial complaint. Id. As a result, the Court held that the invasion of privacy claim was barred by the statute of limitations. Id.
Similarly, in Staley v. Lingerfelt, 134 N.C.App. 294, 296, 517 S.E.2d 392, 394 (1999), the plaintiffs' initial complaint alleged only a 42 U.S.C. § 1983 claim and a loss of consortium claim. After voluntarily dismissing that action, the plaintiffs refiled their lawsuit, asserting not only § 1983 and loss of consortium claims, but also other state law claims. Staley, 134 N.C.App. at 296, 517 S.E.2d at 394. This Court held that the statute of limitations barred the newly-added state law claims, reasoning: “Each claim is an independent cause of action with unique elements which must be proven by plaintiffs. Although the claims arise from the same events as the section 1983 and loss of consortium claims, the defendants were not placed on notice that they would be asked to defend these claims within the time required by the statute of limitations.” Id. at 299, 517 S.E.2d at 396.
In this case, a review of the allegations in the second complaint indicates that the claim labeled as “wrongful termination” is actually a breach of contract claim separate from the cause of action expressly identified as a “breach of contract” claim. The question in this case is whether the two breach of contract claims, the UDTP claim, and the negligent supervision and retention claim were causes of action asserted in the first complaint even though the complaint specifically identified only a single cause of action for retaliatory discharge based on plaintiff's having filed grievances and an NLRB charge.
We hold that because these claims all require proof of different elements than those of the retaliatory discharge in violation of public policy claim that was the sole basis for the initial complaint, the four claims are independent causes of action asserted for the first time in the second complaint. As a result, plaintiff's assertion of those claims in the second complaint does not, under Rule 41, relate back to the filing of the first complaint. See Staley, 134 N.C.App. at 299, 517 S.E.2d at 396 (holding that complaint alleging “independent cause[s] of action with unique elements which must be proven by plaintiff[ ]” does not relate back to filing of initial complaint).
Plaintiff cites Royster v. McNamara, ––– N.C.App. ––––, 723 S.E.2d 122 (2012), in support of his argument. There, the plaintiff voluntarily dismissed his complaint alleging professional negligence and later filed a second complaint again alleging professional negligence and including, for the first time, specific allegations of “ ‘emotional’ “ injury. Id. at ––––, 723 S.E.2d at 131. Although the trial court dismissed the emotional damages allegations, this Court reversed, holding that the plaintiff's “allegation that he sustained ‘emotional’ injury is nothing more than a description of the damage that he claims to have suffered ... and ‘did not [constitute the addition of] an enforceable claim or cause of action that the statute of limitations had run against.’ “ Id. at ––––, 723 S.E.2d at 131 (quoting Holley v. Hercules, Inc., 86 N.C.App. 624, 628, 359 S.E.2d 47, 50 (1987)).
Here, however, the allegations added to plaintiff's second complaint did not merely describe plaintiff's damages or other forms of relief. Rather, the additional allegations amounted to new, independent causes of action requiring proof of elements different from those required to prove the cause of action included in the first complaint. As a result, Losing and Staley control; Royster is inapplicable. We, therefore, hold that plaintiff's second complaint did not relate back to the first complaint with respect to his claims of wrongful termination, breach of contract, UDTP, and negligent supervision.
Because the claims for wrongful termination, breach of contract, and negligent supervision were filed for the first time after the running of the applicable three-year statute of limitations, seeN.C. Gen.Stat. § 1–52 (2011), the trial court properly dismissed the claims as barred by the statute of limitations. We do not agree, however, that plaintiff's UDTP claim was barred by the statute of limitations. The statute of limitations for UDTP claims is four years. SeeN.C. Gen.Stat. § 75–16.2 (2011). Because plaintiff was terminated on 1 April 2008 and the UDTP claim was filed on 15 December 2011, plaintiff's UDTP claim was filed within the statute of limitations.
Nonetheless, plaintiff's UDTP claim was properly dismissed because the allegations in the complaint fail to state a claim for relief. “In order to establish a prima facie claim under N.C. Gen.Stat. § 75–1.1, a plaintiff must be able to show: ‘(1) defendant committed an unfair or deceptive act or practice, (2) the action in question was in or affecting commerce, and (3) the act proximately caused injury to the plaintiff.’ “ Combs v. City Elec. Supply Co., 203 N.C.App. 75, 86, 690 S.E.2d 719, 727 (2010) (quoting Dalton v. Camp, 353 N.C. 647, 656, 548 S.E.2d 704, 711 (2001)), disc. review denied,––– N.C. ––––, 706 S.E.2d 492 (2011).
“North Carolina appellate courts have consistently held that the Unfair and Deceptive Trade Practices Act does not apply to general employer/employee relationships.” Id. In Combs, the Court held that there was no evidence showing that the defendant took actions “ ‘affecting commerce’ “ when the plaintiff's UDTP claim was based on evidence that “he was fired in retaliation for ‘blowing the whistle’ “ on the defendant's business practice that the plaintiff believed to be unlawful. Id. at 87, 690 S.E.2d at 727.
Similarly, here, plaintiff alleged, with respect to his UDTP claim, that “defendant violated North Carolina General Statute § 75 .1, et seq., when it wrongfully terminated the employment of the plaintiff on or about April 1, 2008.” Since plaintiff's allegation “involves a simple employment dispute,” Combs, 203 N.C.App. at 87, 690 S.E.2d at 727, plaintiff has not alleged that defendant's actions were in or affecting commerce. The trial court, therefore, properly dismissed plaintiff's UDTP claim.
Affirmed. Judges STEELMAN and ROBERT N. HUNTER, JR. concur.
Report per Rule 30(e).