Kelly v. Carteret County Board of Education

HUNTER, Judge,

dissenting.

The majority holds that the allegations in plaintiffs complaint are not sufficient to state a claim for wrongful discharge in violation of public policy. Because I disagree, I respectfully dissent.

The essential question in reviewing the grant of a motion to dismiss pursuant to N.C. Gen. Stat. § 1A-1 (1999) Rule 12(b)(6) is whether, “as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief can be granted under some legal theory.” A motion to dismiss pursuant to Rule 12(b)(6) should not be granted “ ‘unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.’

Considine v. Compass Grp. USA, Inc., 145 N.C. App. 314, 316-17, 551 S.E.2d 179, 181, affirmed, 354 N.C. 568, 557 S.E.2d 528 (2001) (citations omitted). Furthermore,

[i]n reviewing a dismissal of a complaint for failure to state a claim, the appellate court must determine whether the complaint alleges the substantive elements of a legally recognized claim and whether it gives sufficient notice of the events which produced the claim to enable the adverse party to prepare for trial.

Peoples Security Life Ins. Co. v. Hooks, 322 N.C. 216, 218, 367 S.E.2d 647, 648-49 (1988).

The Courts of this state have recognized an exception to the employment at will doctrine by identifying a cause of action for wrongful discharge in violation of public policy. See Considine, 145 N.C. App. at 317, 551 S.E.2d at 181. The public policy exception to the employment at will doctrine is “designed to vindicate the rights of employees fired for reasons offensive to the public policy of this State.” Amos v. Oakdale Knitting Co., 331 N.C. 348, 356, 416 S.E.2d 166, 171 (1992). In order to state a claim for wrongful discharge in violation of public policy, an employee has the burden of pleading that her “dismissal occurred for a reason that violates public policy.” Considine, 145 N.C. App. at 317, 551 S.E.2d at 181. The following allegations have been held to be sufficient to state a claim for wrongful discharge in violation of public policy: (1) that the employee was wrongfully discharged in retaliation for refusing to testify falsely in a medical malpractice case, see Sides v. Duke University, 74 N.C. App. 331, 335, 328 S.E.2d 818, 822, disc. review denied, 314 N.C. 331, 333 S.E.2d 490 (1985), overruled in part on other grounds, Kurtzman v. *192Applied Analytical Industries, Inc., 347 N.C. 329, 493 S.E.2d 420 (1997); (2) that the employee was discharged for refusing to comply with his employer’s demand that he continue to operate a commercial vehicle for periods of time that violated federal regulations, see Coman v. Thomas Manufacturing Co., 325 N.C. 172, 173, 381 S.E.2d 445, 446 (1989); and (3) that the employee was discharged for refusing to work for less than the statutory minimum wage, see Amos, 331 N.C. at 350, 416 S.E.2d at 168.

Here, plaintiffs complaint sets forth the following factual allegations: that plaintiff was employed by defendant as an assistant teacher; that plaintiff suffers from a seizure disorder; that plaintiff informed defendant “that she would not be a school bus driver due to a seizure disorder and other medical related conditions that impair her ability to safely operate a school bus”; and that one day later, defendant terminated plaintiff and told her that it was because of her “unwillingness” to drive a school bus. Plaintiff’s complaint also sets forth the following claim for relief:

19. The termination of the plaintiff contravenes and violates the public policy of the state of North Carolina that the safety of persons and property on or near the public highways be protected... .
20. Plaintiff was faced with the dilemma of violating that public policy, i.e., driving a school bus and endangering the lives of the students and traveling public, or complying with the public policy and being fired from her employment. Her termination therefore constitutes wrongful discharge in violation of this public policy.

Without citing any authority, the majority holds that plaintiff’s complaint fails to state a claim for wrongful discharge in violation of public policy because “[t]here is no indication from Plaintiff’s complaint that after informing the School of her medical condition, the School either implicitly or explicitly gave her a choice to drive the school bus or be terminated.” I disagree. I would hold that the allegations in plaintiff’s complaint, treated as true, are sufficient to state a claim for wrongful discharge in violation of public policy.

A Rule 12(b)(6) motion to dismiss for failure to state a claim is the modern equivalent of a demurrer. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). “A demurrer tests the sufficiency of a pleading, admitting, for that purpose, the truth of factual averments well stated *193and such relevant inferences of fact as may be deduced therefrom. When pleadings are thus challenged they are to be liberally construed with a view to substantial justice between the parties.” Machine Co. v. Newman, 275 N.C. 189, 194, 166 S.E.2d 63, 66 (1969) (emphasis added). Considering plaintiffs allegations and the logical inferences arising therefrom, and construing the complaint liberally, I simply cannot agree with the majority that plaintiff has failed to state a claim for wrongful discharge in violation of public policy.

The case law does not support the proposition that in order to state a claim for wrongful discharge in violation of public policy, the employee must allege that the employer, first, demanded that the employee engage in the conduct in question, and that, only after such demand, the employee expressly refused to comply and was therefore fired. In the real world, such a blueprint of neatly severable events unfolding in a particular order is simply unrealistic. For example, it is not difficult to imagine that plaintiff may have simultaneously (1) informed defendant about her seizure disorder and (2) made it known that she would not be willing to drive a school bus because of her disorder. Perhaps plaintiff was confident that her employer would demand that she drive a school bus despite her seizure disorder, and she wanted to make her position on the matter immediately clear. Under such perfectly plausible circumstances, there would have been no reason for the employer to then demand that she drive the school bus, as plaintiff had already made it clear that she would not do so.

I believe that where an employee is forced to choose between being terminated or engaging in conduct which would violate public policy, and where the employer, in fact, discharges the employee for refusing to engage in the conduct in question, that employer has committed the tort of wrongful discharge in violation of public policy. I further believe that plaintiffs complaint alleges all of the substantive elements of a claim for wrongful discharge in violation of public policy, and gives sufficient notice of the events which produced the claim to enable defendant to present any defense and to prepare for trial. Because we must liberally construe plaintiff’s complaint with a view to substantial justice between the parties, I cannot concur that plaintiff has failed to state a claim for wrongful discharge in violation of public policy.

Moreover, I would reverse the trial court’s order because I do not believe that the claim in question is subject to the 180-day statute of limitations in the North Carolina Persons With Disabilities Protection *194Act (the “NCPDPA”). The claim in question is a common law wrongful discharge claim and is subject to a three-year statute of limitations pursuant to N.C. Gen. Stat. § 1-52(5) (1999). See Renegar v. R.J. Reynolds Tobacco Co., 145 N.C. App. 78, 79, 549 S.E.2d 227, 229, disc. review denied, 354 N.C. 220, 554 S.E.2d 344 (2001). Plaintiffs claim was filed within three years of the date of her termination. It would be both contrary to established law, and ultimately ironic, to hold that plaintiffs wrongful discharge claim is barred by the statute of limitations in the NCPDPA because, unfortunately for her, her claim happens to involve the fact that she suffers from a disorder that would qualify as a “disabling condition” under the NCPDPA. See Simmons v. Chemol Corp., 137 N.C. App. 319, 323, 528 S.E.2d 368, 371 (2000) (holding provisions of NCHPPA — now retitled NCPDPA — not applicable to wrongful discharge in violation of public policy claim, even where claim is based upon allegation that plaintiff was terminated because of disability); N.C. Gen. Stat. § 168A-2 (1999) (stating that the NCPDPA seeks to protect disabled individuals from discrimination based upon their disability).

I would reverse the trial court’s order granting defendant’s motion to dismiss because (1) I believe the allegations in the complaint are sufficient to state a claim for wrongful discharge in viola: tion of public policy, and because (2) I believe that the trial court erred in ruling that plaintiff’s claim is barred by the statute of limitations in the NCPDPA.

For the reasons set forth herein, I dissent.