1. Employer and Employee--wrongful discharge--welder--respiratory irritation
The trial court did not err by granting summary judgment for defendant on a wrongful
discharge claim where plaintiff, a welder, alleged that his rhinitis, an inflammation of the nasal
membrane, rendered him handicapped and that his discharge violated public policy. Plaintiff's
medical records establish that his condition is temporary; a discussion of reasonable
accommodation is irrelevant under the Equal Employment Practices Act, on which plaintiff's
claim is based; plaintiff received evaluation scores below an acceptable level for quality of work,
technical application, reliability, and punctuality; and both his supervisor and plant manager
thought that plaintiff's respiratory problems had been resolved well before his termination.
2. Emotional Distress--intentional and negligent--employment termination
The trial court did not err by granting summary judgment for defendant on claims for
intentional and negligent infliction of emotional distress arising from an employment termination.
Gray, Newell & Johnson, L.L.P., by Angela Newell Gray, for
plaintiff-appellant.
Pinto Coates Kyre & Brown, PLLC, by Martha P. Brown, for
defendant-appellee.
WALKER, Judge.
On 15 May 1998, plaintiff filed this action alleging wrongful
discharge in violation of public policy pursuant to N.C. Gen. Stat.
§ 143-422.2, along with a claim for negligent and intentional
infliction of emotional distress. Defendant answered and moved to
dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of
Civil Procedure on 18 June 1998, which the trial court denied on 13
August 1998. On 15 January 1999, defendant moved for summaryjudgment pursuant to Rule 56 of the North Carolina Rules of Civil
Procedure, which the trial court granted on 10 February 1999.
Plaintiff began his employment with defendant as a general
welder on or about 22 July 1996. Approximately six months later,
plaintiff began suffering from a respiratory condition subsequently
diagnosed as “rhinitis,” an allergic reaction characterized by the
inflammation of the nasal membrane. See Kenneth G. Trestman, M.D.,
and Carey Howes, Medical Editor, Allergies, in Attorneys' Textbook
of Medicine par. 65.41 (3d ed. 1998). Plaintiff claims he had
difficulty breathing while performing his duties at work and that
the quality of his work and his attendance record suffered due to
his condition. Further, he requested that defendant provide
breathing masks, ceiling fans and other breathing aids that would
accommodate his breathing problems; however, these requests were
disregarded. Plaintiff also claims he was required to work in a
chemical tank without adequate ventilation, was not allowed time
off for medical treatment for his condition, and was given a poor
evaluation for attendance although the absences were verified by
his doctors. As a result, plaintiff contends he suffered chronic
headaches, fatigue, financial problems and “significantly
exacerbated breathing problems” due to defendant's behavior.
[1]Plaintiff argues that the trial court erred in granting
summary judgment to defendant on his claim of wrongful discharge. Specifically, plaintiff produced a sufficient forecast of evidence
that his respiratory condition rendered him handicapped as defined
in N.C. Gen. Stat. § 168A-3(4)(a)(1998 Cum. Supp.). Additionally,
defendant terminated his employment because of his condition, thus
violating the public policy set out in N.C. Gen. Stat. § 143-422.2(1999). Plaintiff also claims that defendant's indifference and
failure to provide reasonable accommodations so he could perform
his job constitutes intentional and negligent infliction of
emotional distress.
Defendant contends that plaintiff's respiratory condition is
not a handicap protected under N.C. Gen. Stat. § 143-422.2.
Specifically, plaintiff's rhinitis is a temporary condition that
did not substantially limit plaintiff's ability to breathe or work.
Additionally, defendant contends that plaintiff was terminated for
poor performance in his employment. In support of its motion for
summary judgment, defendant submitted the affidavits of maintenance
supervisor Gary Keegan and plant manager Spencer F. Foster, a job
performance evaluation of plaintiff, and other documents from
plaintiff's employment file. These show that:
(1) On 30 May 1997, plaintiff was reprimanded
by Keegan for plaintiff's excessive personal
phone calls during working hours;
(2) On 5 June 1997, plaintiff was counseled
for his failure to work required overtime;
(3) On 29 August 1997, plaintiff was again
reprimanded for personal phone calls during
working hours and was informed that any
further violation of this policy would result
in his suspension or possible termination; and
(4) Plaintiff's 4 September 1997 performance
evaluation resulted in an overall score below
the acceptable standard.
Defendant claims that plaintiff's poor quality of work, lack of
progress, and failure to meet minimum quality standards within his
department were the reasons for his termination on 16 September
1997. Summary judgment should be granted only "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show 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." N.C. Gen. Stat. § 1A-1 Rule 56(c)
(1999). The party moving for summary judgment bears the burden of
establishing the lack of any triable issue and may meet this burden
by (1) proving that an essential element of the opposing party's
claim is nonexistent; (2) showing through discovery that the
opposing party cannot produce evidence to support an essential
element; or (3) showing that the opposing party cannot surmount an
affirmative defense. Roumillat v. Simplistic Enterprises, Inc.,
331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992).
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 America, 109 N.C.
App. 466, 472, 428 S.E.2d 254, 258, disc. review denied, 334 N.C.
163, 432 S.E.2d 360 (1993).
An exception to the employment-at-will doctrine exists when an
employee is discharged in contravention of public policy. Coman v.
Thomas Manufacturing Co., 325 N.C. 172, 175, 381 S.E.2d 445, 447
(1989). “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.” Amos v. Oakdale
Knitting Co., 331 N.C. 348, 353, 416 S.E.2d 166, 169 (1992). TheEqual Employment Practices Act of North Carolina (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 (1999). 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, __ S.E.2d __ (2000).
The North Carolina Handicapped Persons Protection Act
(NCHPPA), N.C. Gen. Stat. § 168A-1 et seq., defines a “handicapped
person” 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.
N.C. Gen. Stat. § 168A-3(4)(a)(1998 Cum. Supp.). Effective 1
October 1999, the NCHPPA was re-titled the North Carolina Persons
with Disabilities Protection Act and amended such that “person with
a disability” is generally substituted for “handicapped person”
throughout the chapter. However, since plaintiff's claim was filed
before the amendment took effect, the terminology of the NCHPPA
will be used.
“Physical or mental impairment” is defined in part as “any
physiological disorder or abnormal condition, . . .caused by. . .
illness, affecting one or more of the following body systems: [...] respiratory....” N.C. Gen. Stat. § 168A-3(4)(a)(i). “M
ajor
life activities” includes “breathing.” N.C. Gen. Stat. § 168A-
3(4)(b). “Any disorder, condition or disfigurement which is
temporary in nature leaving no residual impairment” is specifically
excluded from the meaning of “physical or mental impairment.” N.C.
Gen. Stat. § 168A-3(4)(a)(iii)(C).
Medical records of the plaintiff dated 21 November 1997 state:
[Plaintiff] [q]uit vaccine around September
[1997] when [he] lost [his] job. [He] had
been welding inside “tanks” with fume exposure
irritating to [his] nose. [He] is still
welding now but outdoors and [he] says the
sniffing has stopped. [His] chest feels fine
and [he] feels well.
Impression: Allergic and irritant rhinitis,
now improved.
Another medical record dated 12 March 1997 states in part: “He has
a lot of sniffing, he is irritated, but I think his infection is
over. . . .”
Affording plaintiff the required inferences, Roumillat, 331
N.C. at 63, 414 S.E.2d at 342 (all inferences drawn in favor of
non-movant in deciding motion for summary judgment), plaintiff's
medical records establish that his condition is temporary and
therefore excluded from the statutory definition of “physical
impairment.” Furthermore, plaintiff is unable to establish that he
was “handicapped” under elements (ii) or (iii) of section 168A-
3(4).
Plaintiff also argues that he is a “qualified handicapped
person” as defined by N.C. Gen. Stat. § 168A-3(9). However, since
one's status as a “qualified handicapped person” must be “precededby a determination that one is a 'handicapped person,'
8; plaintiff
is not “a qualified handicapped person” either. Gravitte, 109 N.C.
App. at 470, 428 S.E.2d at 257.
Additionally, plaintiff's concern with the defendant's alleged
failure to provide reasonable accommodations to the plaintiff is
misplaced. Had plaintiff filed a claim under N.C. Gen. Stat. §
168A-11, which provides a civil cause of action under the NCHPPA,
such a discussion may have been appropriate. However, since
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.
Plaintiff also contends that he was terminated because of his
respiratory condition resulting from his employment. In support of
his contention, plaintiff cites his performance evaluation which
states that at times his work was excellent and “the only area in
which he received less than satisfactory was in attendance.”
Plaintiff also states that “his supervisor” told him he was being
terminated due to his respiratory condition.
However, the affidavit of plaintiff's supervisor, Gary Keegan,
states in part:
3. Mr. Simmons was terminated from his
employment on September 16, 1997 for poor job
performance. Mr. Simmons' continued lack of
progress in being able to tackle projects,
learn basic mechanical repair, refusal to work
required overtime and failure to meet minimum
quality standards within the department led to
his dismissal. The day before his
termination, Mr. Simmons left work and refusedto work overtime to complete a mechanical
repair which he had started.
The “Supervisor Summary” section of the plaintiff's 4
September 1997 performance evaluation states:
Anthony's overall work and attendance record
needs improvement. At times, Anthony can be
an excellent employee and team player, and at
other times he will fall short of acceptable
standards. Increased consistency of excellent
work and a better attendance record can bring
Anthony into the acceptable range.
Plaintiff received below acceptable standard scores for his
quality of work, technical application, and reliability and
punctuality. The evaluation noted “numerous absences” and
“numerous lateness [sic].” Additionally, the report stated
“Anthony is very apprehensive about working on weekends and late
during the week. These areas need work.”
Plaintiff was terminated approximately eight months after he
first complained of experiencing breathing problems. Both Keegan's
and Foster's affidavits state that they thought plaintiff's
respiratory problems had completely resolved well before his
termination.
In sum, defendant has established that plaintiff is unable to
prove that he is handicapped and that he was terminated based upon
the alleged handicap. These being essential elements of his claim,
summary judgment for defendant on the claim for wrongful discharge
was proper.
[2]Plaintiff also argues that the trial court erred in
granting summary judgment to defendant on his claims for
intentional and negligent infliction of emotional distress. In an action for intentional infliction of emotional dis
tress,
the essential elements are “(1) extreme and outrageous conduct by
the defendant (2) which is intended to and does in fact cause (3)
severe emotional distress.” Waddle v. Sparks, 331 N.C. 73, 82, 414
S.E.2d 22, 27 (1992)(quoting Dickens v. Puryear, 302 N.C. 437, 276
S.E.2d 325 (1981)). An action for negligent infliction of
emotional distress requires a showing that defendant negligently
engaged in conduct, which was reasonably foreseeable to cause, and
did in fact cause, plaintiff to suffer severe emotional distress.
Fields v. Dery, 131 N.C. App. 525, 526, 509 S.E.2d 790, 791 (1998),
disc. review denied, 350 N.C. 308, ___ S.E.2d ___ (1999). Whether
or not conduct constitutes extreme and outrageous behavior is
initially a question of law for the court. Wagoner v. Elkin City
Schools' Bd. of Education, 113 N.C. App. 579, 586, 440 S.E.2d 119,
123, disc. review denied, 336 N.C. 615, 447 S.E.2d 414 (1994). To
establish the essential element of extreme and outrageous conduct,
the conduct must go beyond all possible bounds of decency and “be
regarded as atrocious, and utterly intolerable in a civilized
community. The liability clearly does not extend to mere insults,
indignities, threats,...." Id.
Viewing the evidence in the light most favorable to the non-
moving party, the plaintiff is unable to establish a showing of
extreme and outrageous conduct on the part of defendant.
Furthermore, plaintiff's forecast of evidence fails to support a
claim of negligent infliction of emotional distress. Accordingly,
the trial court did not err in granting summary judgment todefendant on the claims of intentional and negligent infliction of
emotional distress.
Affirmed.
Chief Judge EAGLES and Judge WYNN concur.
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