An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A p p e l l a t e P r o c e d u r e .
NO. COA13-900
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
VICKIE H. SOSSAMON,
Plaintiff,
v. Vance County
No. 12 CVS 506
GRANVILLE-VANCE DISTRICT HEALTH
DEPARTMENT, d/b/a GRANVILLE-VANCE
HOME HEALTH,
Defendant.
Appeal by Plaintiff from order entered 26 April 2013 by
Judge Henry W. Hight, Jr., in Vance County Superior Court. Heard
in the Court of Appeals 8 January 2014.
Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner,
for Plaintiff.
Cranfill Sumner & Hartzog LLP, by Dan M. Hartzog, Jr., for
Defendant.
STEPHENS, Judge.
Procedural History and Factual Background
This action arises out of the discharge of Plaintiff Vickie
H. Sossamon from her employment with Defendant Granville-Vance
Home Health. Plaintiff worked as a Licensed Physical Therapy
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Assistant II (“LPTA”) from approximately 4 April 1999 to 9 May
2011. The job required that Plaintiff be able to “perform tasks
of heavy lifting, extensive bending, and standing, and must be
able to assist in lifting or moving patients weighing as much as
300 pounds.”
On 11 June 2008, Plaintiff was involved in a car accident
while leaving a patient’s home. Plaintiff received medical care
for her injuries and eventually returned to work. However, she
continued to seek treatment and had ongoing pain. As a result of
her injuries, Plaintiff filed a workers’ compensation claim on
11 June 2008. In January 2011, Plaintiff took a week off work
due to extreme pain. Plaintiff returned to work, but her pain
continued. As a result, Plaintiff took Family and Medical Leave
Act (“FMLA”) leave. Plaintiff returned to work on 21 March 2011,
asked for assignment to lighter patients, and was told this was
not possible.
On 25 March 2011, a doctor took Plaintiff out of work for
one month. On 28 April 2011, Plaintiff presented a doctor’s note
to her supervisor stating that Plaintiff would never be able to
return to work as an LPTA. The note stated Plaintiff was
“totally” disabled and Plaintiff was not to engage in “lifting,
twisting, turning[, or] bending.” Plaintiff informed her
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supervisor that she was not going to be able to return to work
on 3 May 2011 when her leave was exhausted. Plaintiff testified
she was unable to perform the job requirements of an LPTA.
Later on 28 April 2011, Plaintiff met with a doctor
employed by Defendant. Plaintiff advised the doctor about “her
current situation regarding her continued neck problems and pain
as well as the fact that she had brought in documentation from
her physician that she was not able to work now nor would she
ever be able to return to work . . . .” Plaintiff also advised
the doctor that she was going to have surgery for her neck.
Plaintiff attempted to finalize some information necessary for
Defendant to complete its part of Plaintiff’s application for
disability retirement. Plaintiff and the doctor employed by
Defendant also discussed
[Plaintiff’s] feelings that even if the
surgery were successful . . . that
continuing to do physical activities
required on the job . . . would jeopardize
her health and risk . . . exacerbating her
neuro-muscular problems in her neck and head
area which she hopes to alleviate with the
surgery. She stated she agreed with her
physician that she would never be able to
return to the activities required of her job
with us . . . .
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Plaintiff did not report to work at the conclusion of her leave,
and the termination of her employment became effective on 9 May
2011.
Plaintiff brought suit on 18 May 2012 alleging the
following causes of action: (1) violation of the Retaliatory
Employment Discrimination Act (“REDA”), N.C. Gen. Stat. § 95-240
et. seq.; (2) wrongful discharge in violation of public policy;
(3) violation of the equal protection clause of North Carolina’s
Constitution Article I, Section 19; (4) violation of the Law of
the Land Due Process Clause of North Carolina’s Constitution
Article I, Section 19; (5) violation of the North Carolina
Persons With Disabilities Protection Act (“NCPDPA”), N.C. Gen.
Stat. § 168A-1 et seq.; and (6) punitive damages. On 23 July
2012, Defendant filed a motion to dismiss on grounds that
“Plaintiff’s [c]omplaint [did] not state a claim on which relief
[could have been] granted, as the [c]omplaint reveal[ed] that
Plaintiff was unable to perform her job with or without
reasonable accommodation and [was] currently on disability
retirement.” On 25 September 2012, the motion to dismiss was
granted as to all claims except the REDA and wrongful discharge
claims. On 7 February 2013, Defendant filed a motion for summary
judgment on the remaining claims. On 8 April 2013, Defendant
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filed an amended motion for summary judgment. On 26 April 2013,
an order was entered granting Defendant’s amended motion for
summary judgment. Plaintiff filed notice of appeal on 22 May
2013.
Discussion
On appeal, Plaintiff argues that the trial court committed
reversible error in granting Defendant’s motion for summary
judgment when there were genuine issues of material fact for
determination by a jury of her REDA and wrongful discharge
claims. We affirm.
I. REDA
Plaintiff argues that the trial court committed reversible
error by granting Defendant’s motion for summary judgment on her
REDA claim. We disagree.
“Our standard of review of an appeal from summary judgment
is de novo; such judgment is appropriate only when the record
shows that there is no genuine issue as to any material fact and
that any party is entitled to a judgment as a matter of law.” In
re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008)
(citation and internal quotation marks omitted; italics added).
“The evidence must be viewed in the light most favorable to the
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non-moving party.” Wiley v. United Parcel Serv., Inc., 164 N.C.
App. 183, 186, 594 S.E.2d 809, 811 (2004) (citation omitted).
Plaintiff argues that “it is clear that [Plaintiff] was
terminated (a) due to her workers’ compensation claim, (b) the
medical treatment for her neck injury, (c) the work restrictions
that the treating physicians placed on her due to her neck
injury, (d) the refusal of [D]efendant to accommodate those
restrictions, and (e) the refusal to allow her to work while
awaiting surgery.” However, of the possibilities suggested by
Plaintiff, only (a), termination due to her filing of a workers’
compensation claim, could be a violation of REDA.
Section 95-241(a) of our General Statutes provides in
pertinent part 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 . . .
. . .
Chapter 97 of the General Statutes [the
Workers’ Compensation Act].
N.C. Gen. Stat. § 95-241(a) (2013).
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The statute [which REDA replaced did] not
prohibit all discharges of employees who are
involved in a workers’ compensation claim[;]
it only prohibits those discharges made
because the employee exercises his
compensation rights. Furthermore, our
appellate courts indicated in applying the
former provision that a plaintiff fails to
make out a case of retaliatory action where
there is no close temporal connection
between the filing of the claim and the
alleged retaliatory act.
Salter v. E & J Healthcare, Inc., 155 N.C. App. 685, 691, 575
S.E.2d 46, 50 (2003) (citation and internal quotation marks
omitted).
[REDA] prohibits discrimination or
retaliation against an employee for filing a
worker[s’] compensation claim. 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). 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. If [the] 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. Although evidence of retaliation
in a case such as this one may often be
completely circumstantial, the causal nexus
between protected activity and retaliatory
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discharge must be something more than
speculation.
Wiley, 164 N.C. App. at 186-87, 594 S.E.2d at 811 (citations and
internal quotation marks omitted; italics added).
Here, there is no dispute that Plaintiff “exercised h[er]
rights” to file a workers’ compensation claim and “that [s]he
suffered an adverse employment action” when she was terminated
from employment. Id. at 186, 594 S.E.2d at 811. Thus, the only
issue left in considering whether Plaintiff sufficiently
forecast a REDA claim is whether “the alleged retaliatory action
was taken because . . . [Plaintiff] exercised [her] rights” to
file a workers’ compensation claim. Id. (emphasis added).
Plaintiff admitted at her deposition that she was
terminated because she could not fulfill her job description. In
her complaint, Plaintiff alleged she has “significant pain in
her neck and shoulders and is unable to lift, twist, turn, and
bend.” She also alleged that “[h]er termination was directly
related to her work[-]related injury and the resulting work
restrictions.”
A party is bound by h[er] pleadings and,
unless withdrawn, amended, or otherwise
altered, the allegations contained in all
pleadings ordinarily are conclusive as
against the pleader. [Sh]e cannot
subsequently take a position contradictory
to h[er] pleadings. An admission in a
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pleading has the same effect as a jury
finding[] and is conclusive upon the parties
and the trial judge.
Bradley v. Bradley, 206 N.C. App. 249, 255-56, 697 S.E.2d 422,
427 (2010) (citations and internal quotation marks omitted).
Further, in other actions, Plaintiff has taken the position
that she was terminated because she was unable to perform her
job requirements. First, on her Department of Labor complaint
form, Plaintiff stated that she was “terminated due to inability
to perform [the] job description.” Plaintiff confirmed this
statement was accurate in her deposition for this case:
[Defense Counsel]: And I’ll draw your
attention to the second page[]: “Why do you
think your employer took this employment
action against you?” Your answer was, “I did
file a worker[s’] compensation claim[;]
however[, I was] terminated due to inability
to perform [the] job description, which was
to be able to lift up to 300 pounds.”
[Plaintiff]: That’s correct.
[Defense counsel]: So that’s your reason
that you’ve given to the Department of Labor
as to why you were terminated, correct?
[Plaintiff]: Yes.
[Defense Counsel]: And was that an accurate
reason?
[Plaintiff]: Yes.
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Second, in response to an interrogatory in her workers’
compensation case, Plaintiff stated that she was “[t]erminated
on May 9, 2011 due to not being able to perform [her] job
description.” Finally, in a deposition related to a separate
lawsuit for the underlying car accident, Plaintiff once again
stated that she was terminated due to her inability to perform
the tasks listed in the job description. Therefore, so far as
Plaintiff’s REDA action is concerned, her consistent position
and judicial admissions that she was terminated due to her
inability to perform the functions required by the job are
conclusive.
Moreover, Plaintiff’s contention that she was not offered
an accommodation does not save her REDA claim. A failure to
return an employee to work in a position other than her own has
never been held to be violative of REDA. See Wiley, 164 N.C.
App. at 187, 594 S.E.2d at 812 (“[P]laintiff has not cited any
authority suggesting that a failure to return an employee to
work in a position other than his own violates . . . REDA[.]”).
As this Court has noted, “[u]nlike the Americans with
Disabilities Act, . . . REDA does not require an employer to
make an accommodation for an employee. If no position currently
exists that [the] plaintiff could perform, necessarily no
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adverse employment action has occurred.” Id. Thus, Defendant’s
actions were not “retaliatory actions” within the meaning of
REDA, and Plaintiff has failed to forecast sufficient facts to
support a REDA claim.
Plaintiff’s own testimony, in this case and in previous
actions, indicates that the reason for her termination was her
inability to fulfill her job description. Plaintiff’s claim that
she was discharged because she exercised her right to file a
workers’ compensation claim is simply unsupported by the
evidence and contradicted by her testimony in this case and
others. Since Plaintiff has not met her burden of showing a
prima facie case, we are not required to address whether
Defendant would have terminated Plaintiff’s employment in the
absence of Plaintiff’s workers’ compensation claim. Taken in the
light most favorable to Plaintiff, there is no genuine issue of
material fact as to whether Defendant took retaliatory action
against Plaintiff because she filed a workers’ compensation
claim. Plaintiff’s argument is overruled.
II. Wrongful Discharge
Next, Plaintiff argues the trial court erred in granting
summary judgment on her claim for wrongful discharge in
violation of public policy. Again, we disagree.
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“In North Carolina, . . . absent an employment contract for
a definite period of time, both employer and employee are
generally free to terminate their association at any time and
without reason.” Gravitte v. Mitsubishi Semiconductor Am., 109
N.C. App. 466, 472, 428 S.E.2d 254, 258 (citation omitted),
disc. review denied, 334 N.C. 163, 432 S.E.2d 360 (1993).
The discharge of an at-will employee generally does not
support an action for wrongful discharge in this State. However,
as argued by Plaintiff, exceptions to this general rule have
been recognized by our appellate courts, including a prohibition
against termination for a purpose in contravention of public
policy. Plaintiff cites some of the leading cases that have
recognized this exception. Kurtzman v. Applied Analytical
Indus., Inc., 347 N.C. 329, 493 S.E.2d 420 (1997) (holding it a
violation of public policy for nurse who alleged her employer
pressured her not to testify honestly in a malpractice lawsuit
and discharged her after she testified honestly), reh’ing
denied, 347 N.C. 586, 502 S.E.2d 594 (1998); Amos v. Oakdale
Knitting Co., 331 N.C. 348, 416 S.E.2d 166 (1992) (holding it a
violation of public policy for employer to discharge employee
for refusing to work for less than statutory minimum wage);
Deerman v. Beverly California Corp., 135 N.C. App. 1, 518 S.E.2d
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804 (1999) (holding it a violation of public policy where a
nurse was allegedly fired for reporting violations of state
regulations by employer), disc. review denied, 351 N.C. 353, 542
S.E.2d 208 (2000); Roberts v. First-Citizens Bank & Trust Co.,
124 N.C. App. 713, 478 S.E.2d 809 (1996) (holding it a violation
of public policy to discharge a commercial loan officer for
refusal to cash collateral without giving notice to debtor as
required by statute); Vereen v. Holden, 121 N.C. App. 779, 468
S.E.2d 471 (1996) (holding discharge of employee for political
affiliation violates public policy); Lenzer v. Flaherty, 106
N.C. App. 496, 418 S.E.2d 276 (1992) (holding it a violation of
public policy when hospital worker discharged for reporting
patient abuse); Williams v. Hillhaven Corp., 91 N.C. App. 35,
370 S.E.2d 423 (1988) (reversing dismissal of the plaintiff’s
complaint where the plaintiff alleged she was fired after
testifying truthfully against her employer). In each of these
cases, our Courts have recognized an exception to the employment
at will doctrine by identifying a cause of action for wrongful
discharge in violation of public policy. Under the exception,
the employee has the burden of pleading and proving that the
employee’s dismissal occurred for a reason that violates public
policy.
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In her complaint, Plaintiff identifies the public policy
supporting her wrongful discharge claim as the disability
discrimination prong of the North Carolina Equal Employment
Practices Act (“the Employment Act”) and its public policy
statement set forth in N.C. Gen. Stat. § 143-422.1 et seq. “[A]t
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.” Amos, 331 N.C. at 353,
416 S.E.2d at 169. The Employment Act provides in pertinent
part:
It is the public policy of this State to
protect and safeguard the right and
opportunity of all persons to seek,
obtain[,] and hold employment without
discrimination or abridgement on account of
. . . handicap . . . .
N.C. Gen. Stat. § 143-422.2 (2013). The Employment Act does not
define “handicap,” and thus, we turn to other North Carolina
statutes relating to the same subject matter to determine
legislative intent. McCullough v. Branch Banking & Trust Co.,
Inc., 136 N.C. App. 340, 347, 524 S.E.2d 569, 574 (2000).
The NCPDPA defines a “[p]erson with a disability” as
any person who (i) has a physical or mental
impairment which substantially limits one or
more major life activities; (ii) has a
record of such an impairment; or (iii) is
regarded as having such an impairment.
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N.C. Gen. Stat. § 168A-3(7a) (2013).
When a “qualified person with a disability” requests that
an accommodation be made for her disabling condition, her
employer must investigate whether there are reasonable
accommodations that can be made and must make reasonable
accommodations for the person’s condition. N.C. Gen. Stat. §
168A-4 (2013). Assuming without deciding that Plaintiff is a
“person with a disability,” as that term is defined in section
168A-3(7a), we conclude that Plaintiff is not a “qualified
person with a disability.” (Emphasis added). That term means:
With regard to employment, a person with a
disability who can satisfactorily perform
the duties of the job in question, with or
without reasonable accommodation, (i)
provided that the person with a disability
shall not be held to standards of
performance different from other employees
similarly employed, and (ii) further
provided that the disabling condition does
not create an unreasonable risk to the
safety or health of the person with a
disability, other employees, the employer’s
customer, or the public . . . .
N.C. Gen. Stat. § 168A-3(9)(a).
The evidence demonstrates that Plaintiff could not perform
the duties of the job of an LPTA as defined in the job
description. Furthermore, given the fact that the job of LPTA
entails performing CPR on Defendant’s patients, we believe that
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Plaintiff’s condition, which renders her unable to perform CPR
due to her restrictions on twisting and bending, could create an
unreasonable risk to herself and Defendant’s patients. As
Plaintiff was not a “qualified person with a disability,” we
conclude that Defendant was under no duty to make accommodations
for Plaintiff’s physical condition. See, e.g., White v. N.C.
Dep’t of Corr., 117 N.C. App. 521, 527, 451 S.E.2d 876, 881
(1995) (“The evidence demonstrates that the petitioner could not
perform the duties of the job of correctional officer as defined
in the job description. Furthermore, given the fact that the job
of correctional officer entails the supervision of inmates, we
believe that petitioner’s condition, which renders him unable to
pursue foot-fleeing inmates or physically subdue them
effectively, could create an unreasonable risk to himself, his
fellow correctional officers, other inmates[,] and the public at
large. As petitioner was not a ‘qualified [person with a
disability],’ we conclude that respondent was under no duty to
make accommodations for petitioner’s physical condition.”).
Furthermore, Plaintiff’s contention that Defendant failed
to provide reasonable accommodations is not relevant in a claim
for wrongful discharge in violation of public policy. Our Court
has stated:
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[The] plaintiff’s concern with the
defendant’s alleged failure to provide
reasonable accommodations to the plaintiff
is misplaced. Had [the] plaintiff filed a
claim under N.C. Gen. Stat. § 168A-11, which
provides a civil cause of action under the
[NCPDPA], such a discussion may have been
appropriate. However, since [the]
plaintiff’s claim is based on wrongful
discharge in violation of public policy
under N.C. Gen. Stat. § 143-422.2, a
discussion of reasonable accommodations
under N.C. Gen. Stat. § 168A-3(9) and (10)
is irrelevant.
Simmons v. Chemol Corp., 137 N.C. App. 319, 323, 528 S.E.2d 368,
371 (2000). Although Plaintiff did file a claim under NCPDPA,
this claim was dismissed at the Rule 12(b)(6) stage and that
ruling has not been appealed. Therefore, Plaintiff’s contention
that she was denied reasonable accommodations is not relevant to
her wrongful discharge claim.
Finally, Plaintiff argues that Defendant violated public
policy because “[D]efendant’s own policy manual provides the
procedure and policy that [D]efendant must follow when an
employee requires or requests a reasonable accommodation.” This
Court has stated:
We are . . . aware that there are strong
equitable and social policy reasons
militating against allowing employers to
promulgate for their employees potentially
misleading personnel manuals while reserving
the right to deviate from them at their own
caprice.
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Nevertheless, the law of North Carolina is
clear that unilaterally promulgated
employment manuals or policies do not become
part of the employment contract unless
expressly included in it.
Walker v. Westinghouse Elec. Corp., 77 N.C. App. 253, 259, 335
S.E.2d 79, 83-84 (1985) (citations omitted), disc. review
denied, 315 N.C. 597, 341 S.E.2d 39 (1986).
There is no evidence in the record to suggest that the
policy manual became part of Plaintiff’s employment contract.
Therefore, on the record before us, we hold that Plaintiff
failed to present a sufficient forecast of evidence to survive
Defendant’s motion for summary judgment on this issue.
AFFIRMED.
Judges STEELMAN and DAVIS concur.
Report per Rule 30(e).
Sossamon v. Granville-Vance Dist. Health Dep't
Combined Opinion