Opinion
No. COA10-605
Filed 7 June 2011 This case not for publication
Appeal by plaintiff from judgment entered 15 February 2010 by Judge V. Bradford Long in Randolph County Superior Court. Heard in the Court of Appeals 16 November 2010.
Hicks McDonald Noecker, L.L.P., by David W. McDonald, for plaintiff-appellant. Tharrington Smith, L.L.P., by Eva B. DuBisson, for defendant-appellees.
Randolph County No. 09 CVS 3185.
Because plaintiff has failed to make a legally cognizable claim for employment discrimination and wrongful discharge, we affirm the trial court's order dismissing plaintiff's action.
Plaintiff Gail Blair was employed as a permanent full-time teaching assistant with defendant Randolph County Board of Education. Events that occurred during the course of that employment are the subject of this action. Plaintiff suffers from a medical condition known as labyrithitis, an inner ear disorder which affects her equilibrium, but which can be treated by implanting a prosthetic device in her ear. This condition requires corrective surgery from time to time. In the fall of 2008, plaintiff had the corrective surgery. Plaintiff requested and received sick leave to have the surgery and recover. Because plaintiff was unable to perform her essential job functions and had already used her sick leave, plaintiff requested family leave pursuant to the FMLA for the months of December 2008 and January and February 2009. She was granted FMLA leave of absence based upon her medical condition from 15 January 2009 until 14 March 2009. Meanwhile, on 19 February 2009, plaintiff submitted a claim for short-term disability.
Family Medical Leave Act, 29 U.S.C.S. § 2601 et seq. "Under the FMLA, an employer is required to hold a position open for twelve weeks in a fifty-two week period for medical leave." Leggett v. AAA Cooper Transp., Inc., 198 N.C. App. 96, 103, 678 S.E.2d 757, 762 (2009) (citing 29 U.S.C. § 2612(a)(1) (2008)).
Following surgery in the fall of 2008, plaintiff's doctor waited for her condition to stabilize prior to scheduling her follow-up surgery, which was ultimately completed in October 2009. In the interim, plaintiff's doctor instructed plaintiff to "participate in as many ordinary life activities as she could" to aid in stabilizing the condition. Plaintiff contends that in an effort to comply with her doctor's instructions, while she was still on medical leave, plaintiff visited a local restaurant with friends in April 2009. While there, a photographer took several photos of plaintiff and uploaded them to the restaurant's website. Plaintiff avers that the photos are "perfectly innocent and do not depict plaintiff in any compromising or inappropriate acts."
On or about 23 April 2009, Jeanne Blackard, Director of Classified Personnel for the Randolph County Board of Education, called plaintiff into her office. Blackard told plaintiff that she had obtained copies of the foregoing photos from the restaurant's website, that the photos showed her in "compromising situations," and that Donald Andrews, Superintendent of Randolph County Board of Education, required Blackard to give plaintiff the option of resigning or being discharged involuntarily. Plaintiff resigned that day. After retaining counsel in this matter, plaintiff sought to rescind her resignation but was refused.
On 16 October 2009, plaintiff filed a verified complaint seeking an order requiring the Randolph County Board of Education to reinstate plaintiff's employment and award money damages on the grounds that by discharging or otherwise discriminating against plaintiff on the basis of her disabling condition defendants violated the North Carolina Persons with Disabilities Protection Act, codified in General Statutes, chapter 168A, and alleging their actions also constituted a wrongful discharge in violation of public policy. On 8 January 2010, defendants filed a motion to dismiss all claims pursuant to Rule 12(b)(6). On 12 February 2010, plaintiff filed an amended complaint. On 16 February 2010, the trial court entered an order granting defendants' motion to dismiss all claims. Plaintiff appeals.
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On appeal, plaintiff questions whether the trial court erred in dismissing plaintiff's claim (I) as it pertains to the employment discrimination claim; and (II) as it pertains to the wrongful discharge claim.
I
Plaintiff contends the trial court erred in dismissing her claim of employment discrimination in violation of the North Carolina Persons with Disabilities Protection Act. We disagree.
When considering a motion to dismiss pursuant to our Rules of Civil Procedure, Rule 12(b)(6), "[t]he question for the court 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, whether properly labeled or not." Grant Constr. Co. v. McRae, 146 N.C. App. 370, 373, 553 S.E.2d 89, 91 (2001). In answering this question, 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." Block v. County of Person, 141 N.C. App. 273, 277-78, 540 S.E.2d 415, 419 (2000) (citation omitted). A complaint must contain "[a] short and plain statement of the claim sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved showing that the pleader is entitled to relief." N.C. R. Civ. P. 8(a)(1) (2009). "A complaint may be dismissed pursuant to Rule 12(b)(6) if no law exists to support the claim made, if sufficient facts to make out a good claim are absent, or if facts are disclosed which will necessarily defeat the claim." Forbis v. Honeycutt, 301 N.C. 699, 701, 273 S.E.2d 240, 241 (1981). This Court "must conduct a de novo review of the pleadings to determine their legal sufficiency and to determine whether the trial court's ruling on the motion to dismiss was correct." Leary v. N.C. Forest Products, Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4 (2003).
Under the Persons with Disabilities Protection Act, "[i]t is a discriminatory practice for (1) [a]n employer to fail to hire or consider for employment or promotion, to discharge, or otherwise to discriminate against a qualified person with a disability on the basis of a disabling condition with respect to compensation or the terms, conditions, or privileges of employment. . . ." N.C. Gen. Stat. § 168A-5(a)(1) (2009). A "`[p]erson with a disability' means any person who (i) has a physical or mental impairment which substantially limits one or more major life activities. . . ." N.C. Gen. Stat. § 168A-3(7a) (2009).
As stated in her complaint, plaintiff alleged that she has a lifelong illness, labyrithitis, which affects her ability to hear and walk. Plaintiff alleges that "[d]efendants have violated N.C. Gen. Stat. § 168A-5(a)(1) in that defendants have discharged, or otherwise discriminated against plaintiff on the basis of plaintiff's disabling condition with respect to compensation or the terms, conditions, or privileges of employment." However, with the exception of her termination, plaintiff has failed to allege any act of her employer that was detrimental as to her compensation or the terms, conditions, or privileges of her employment. As for plaintiff's termination, according to the allegations in her complaint, plaintiff was discharged because of the photographs taken of her and published on a restaurant website. These allegations fail to indicate a causal relationship between plaintiff's disability and the termination of her employment. To find such a causal relationship on the face of the complaint would require an unacceptable level of speculation which is fatal to plaintiff's claim. Therefore, the trial court properly dismissed plaintiff's claim for relief based on employment discrimination under chapter 168A.
II
Next, plaintiff contends the trial court erred in dismissing her claim of wrongful discharge in violation of public policy. We disagree.
First, plaintiff's claim shows she was not discharged and further, as stated in Issue I, plaintiff's allegations fail to show her separation from employment was the result of employment discrimination. Under North Carolina General Statutes, section 143-422.2, "[i]t 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 or abridgement on account of race, religion, color, national origin, age, sex or handicap. . . ." N.C. Gen. Stat. § 143-422.2 (2009).
"Ordinarily, an employee without a definite term of employment is an employee at will and may be discharged without reason." Coman v. Thomas Mfg. Co., 325 N.C. 172, 175, 381 S.E.2d 445, 446 (1989) (citing Still v. Lance, 279 N.C. 254, 182 S.E. 2d 403 (1971)). "North Carolina is an employment-at-will state." Garner v. Rentenbach Constructors, Inc., 350 N.C. 567, 569, 515 S.E.2d 438, 439 (1999). "Any exception to the at will employment doctrine should be adopted only with substantial justification grounded in compelling considerations of public policy." Salter v. E J Healthcare, Inc., 155 N.C. App. 685, 694, 575 S.E.2d 46, 52 (2003). Therefore, the public policy exception plaintiff attempts to invoke is a very narrow exception to the employment-at-will doctrine. However, to invoke the doctrine and state a claim for unlawful discrimination, plaintiff must allege an unlawful discharge. The burden is on plaintiff to demonstrate that she was the victim of a protected discriminatory action. See generally id., 155 N.C. App. at 693, 575 S.E.2d at 51 (asserting that for a claim of retaliatory termination, "the employee has the burden of pleading and proving that the employee's dismissal occurred for a reason that violates public policy.").
Plaintiff alleges she was given the ultimatum of voluntary resignation or immediate termination. She chose to resign. Because the facts as alleged by plaintiff, when treated as true, are insufficient to support claims for discrimination either on the basis of a disabling condition in violation of the Persons with Disabilities Protection Act, within Chapter 168A, or based on wrongful discharge in violation of public policy as set forth in N.C. Gen. Stat. § 143-422.2, we affirm the trial court's grant of defendant's 12(b)(6) motion. See Grant Constr. Co., 146 N.C. App. at 373, 553 S.E.2d at 91.
Affirmed.
Judges STROUD and BEASLEY concur.
Report per Rule 30(e).