Employer and Employee--wrongful discharge claim--collective
bargaining contract
The trial court did not err by granting summary judgment for
defendants on a wrongful discharge claim by a railroad employee
subject to a collective bargaining agreement which provided that
he could not be removed or disciplined except for just and
sufficient cause after a preliminary hearing. The proper claim
for this plaintiff was breach of contract.
Wallace & Graham, by Richard Huffman, and C. Marshall
Friedman, P.C., by Kenneth E. Rudd, for plaintiff-appellant.
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by
Allison M. Grimm, and Gibbes & Burton, L.L.C., by Frank H.
Gibbes, III, for defendant-appellees.
JOHN, Judge.
Plaintiff Audie E. Trexler seeks review of the trial court's
entry of summary judgment in favor of defendants Norfolk Southern
Railway Company, Thomas L. Lynch, James H. Forrest, C.L. Crabtree
and Norfolk Southern Corporation (collectively defendants). We
affirm the trial court.
The record reflects the following generally uncontroverted
factual and procedural background information: Plaintiff was hired
by defendant Norfolk Southern Railway Company (NSRC) on or about 12
November 1979 and worked at NSRC's Linwood, North Carolinafacility. As a Carman for NSRC, plaintiff was represented by his
labor organization, the Transportation Communications International
Union, Brotherhood of Railway Carmen Division (the Union).
Plaintiff was also subject to the terms of a Collective Bargaining
Agreement (the Agreement) between NSRC and the Union. Rule 34(a)
of the Agreement specified as follows:
[a]n employee will not be removed from service
or disciplined (including discharge) except
for just and sufficient cause after a
preliminary hearing.
On or about 5 December 1995, plaintiff testified under oath in
a case brought by the Union and a co-worker against defendants
Norfolk Southern Corporation (NSC) and NSRC in United States
District Court for the Eastern District of Tennessee, Knoxville
Division. In his sworn statement, plaintiff related he had heard
defendant Thomas L. Lynch (Lynch), a NSRC Master Mechanic, state to
employees of NSRC that he “did not recommend that we vote Jack
[Wright] in as local chairman because . . . Jack always stirred up
problems” and that “we did not need Jack in there, because he would
cause problems.” At the time, Wright was a candidate for election
as local chairperson of the Union.
Shortly thereafter, Timothy T. Malloy, Assistant Director of
Labor Relations for NSRC, contacted Lynch and inquired if Lynch had
indeed made such a statement. Lynch denied having done so.
Defendant J.H. Forrest (Forrest), Senior General Foreman at
NSRC's Linwood facility and plaintiff's supervisor, reviewed a copy
of plaintiff's sworn testimony at the request of Lynch. According
to Forrest, he subsequently interviewed employees and supervisors
“who could have been in the meeting or gathering where [plaintiff]alleged [Lynch] made the statement in question,” but each of the
“individuals [interviewed] indicated they had not heard any
supervisors at Linwood tell anyone not to vote for Jack Wright.”
Pursuant to Rule 34 of the Agreement and on behalf of NSRC,
Forrest wrote plaintiff a letter dated 4 January 1996. Plaintiff
was directed therein to report “for a formal investigation to
determine [plaintiff's] responsibility for conduct unbecoming an
employee” in connection with plaintiff's sworn statement regarding
Lynch. Defendant C.L. Crabtree (Crabtree), a NSRC official,
presided over the 23 January 1996 investigation. Plaintiff,
accompanied by his duly authorized Union representatives, presented
testimony from five witnesses and documented polygraph test
results.
By letter dated 31 January 1996, Crabtree returned the
documentation to plaintiff, indicating the polygraph results had
been deleted from the record and would not be considered because
such evidence was prohibited under the provisions of “the federal
Employee Polygraph Protection Act, 29 U.S.C., Section 2001, et
seq.” By separate letter the same date, Crabtree also informed
plaintiff the evidence presented at the investigation “clearly
reflect[ed] that [plaintiff was] guilty of the charge brought
against [him,]” and that plaintiff was “dismiss[ed] from all
services” of NSRC. Pursuant to the Agreement, plaintiff
subsequently appealed to a Public Law Board which upheld his
termination.
Seeking compensatory and punitive damages, plaintiff
instituted the instant action 31 January 1996, alleging claims ofwrongful discharge in violation of public policy, defamation,
negligent and intentional infliction of emotional distress,
tortious interference with an employment contract and civil
conspiracy. The case initially was removed to federal court and
then remanded to Rowan County Superior Court. See Trexler v.
Norfolk Southern Ry. Co., 957 F. Supp. 772 (M.D.N.C. 1997).
Defendants' subsequent motion for summary judgment was granted 16
March 1999 and all claims were dismissed with prejudice.
Plaintiff's appeal was dismissed by the trial court 11 October
1999 for failure to comply with the N.C. Rules of Appellate
Procedure. On 3 December 1999, plaintiff filed a “Petition for
Writ of Certiorari” (Petition) with this Court, which Petition was
conditionally allowed and referred to this panel. We elect to
entertain plaintiff's appeal. See N.C.R. App. P. 21.
Although plaintiff originally assigned error to dismissal of
each of his six claims, his Petition sought review solely of the
claim for wrongful discharge and only that cause of action has been
addressed by plaintiff in his appellate brief. Plaintiff's
remaining assignments of error are thus deemed abandoned and we do
not address them. See N.C.R. App. P. 28(b)(5)(assignments of error
“in support of which no . . . argument is stated . . . will be
taken as abandoned”).
In short, plaintiff maintains on appeal that the trial court
erred in granting defendants' summary judgment motion regarding
plaintiff's claim for wrongful discharge. We do not agree.
Summary judgment is properly granted when the pleadings, deposition
s, 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.G.S. § 1A-1, Rule 56 (1999). A summary judgment movant bears
the burden of establishing the lack of any triable factual issue.
Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 62-63, 414
S.E.2d 339, 341-42 (1992). The movant may meet its burden by: (1)
demonstrating that an essential element of the plaintiff's claim is
nonexistent; (2) establishing through discovery that the
plaintiff's cannot produce evidence to support an essential element
of the claim; or (3) showing that plaintiff cannot survive an
affirmative defense, such as governmental immunity. Bernick v.
Jurden, 306 N.C. 435, 440-41, 293 S.E.2d 405, 409 (1982).
Plaintiff asserts he was entitled to sue in tort for wrongful
discharge in violation of public policy “even though he was
employed pursuant to a collective bargaining agreement.” Previous
decisions of our appellate courts indicate plaintiff's argument
must fail.
North Carolina's first appellate decision adopting the tort of
wrongful discharge in violation of public policy was Sides v. Duke
Univ., 74 N.C. App. 331, 328 disc. review denied, 314 N.C. 331, 333
S.E.2d 490 (1985). The plaintiff nurse in Sides alleged her at
will employment with the defendant had been terminated in
retaliation for her refusal to commit perjury in a medical
malpractice action against her employer. In upholding theplaintiff's claim, this Court reasoned that:
while there may be a right to terminate a
contract at will for no reason, or for an
arbitrary or irrational reason, there can be
no right to terminate such a contract for an
unlawful reason or purpose that contravenes
public policy. . . . We hold, therefore, that
no employer in this State, notwithstanding
that an employment is at will, has the right
to discharge an employee and deprive him of
his livelihood without civil liability because
he refuses to testify untruthfully or
incompletely in a court case as plaintiff
alleges happened here.
Id. at 342, 328 S.E.2d at 826.
Our Supreme Court subsequently adopted a public-policy
exception to employment at will in Coman v. Thomas Manufacturing
Co., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989)(employer's
alleged discharge of plaintiff for refusal to violate U.S.
Department of Transportation regulations by driving excessive hours
and falsifying records “offend[s] the public policy of North
Carolina”). Three years later, in Amos v. Oakdale Knitting Co.,
331 N.C. 348, 416 S.E.2d 166 (1992), the Court considered a claim
that three employees had been ordered to work for reduced pay,
below the statutorily prescribed minimum wage, or suffer
termination of their employment. Id. at 350, 452 S.E.2d at 168.
In rejecting the defendants' assertion that they had not violated
public policy because the “alleged acts [we]re peculiar to the
plaintiff[s],” id. at 352, 416 S.E.2d at 169, the Court observed
that:
[a]lthough the definition of “public policy”
approved by this Court does not include a
laundry list of what is or is not “injuriousto the public or against the public good,” 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.
Id. at 353, 452 S.E. 2d at 169 (footnote omitted).
Plaintiff relies heavily upon the foregoing cases. Unlike
plaintiff, however, we do not read these decisions to entitle all
terminated employees to assert the tort of wrongful discharge.
Rather, in each of the cited instances the tort was recognized
solely in the context of employment at will. See id, 331 N.C. at
350, 416 S.E.2d at 167 (1992) (noting Coman explicitly adopted a
public policy exception to the well-entrenched employment at will
doctrine), and Williams v. Hillhaven Corp., 91 N.C. App. 35, 39,
370 S.E.2d 423, 425 (1988) (observing Sides created “an exception
to the general rule that an employee at will has no tort claim for
retaliatory discharge”).
In addition, this Court has expressly stated that:
[w]rongful termination may be asserted “only
in the context of employees at will,” and not
by an employee “employed for a definite term
or . . . subject to discharge only for 'just
cause.'”
Houpe v. City of Statesville, 128 N.C. App. 334, 343, 497 S.E.2d
82, 88, (citations omitted)(emphasis added), disc. review denied,
348 N.C. 72, 505 S.E.2d 871 (1998).
Further, in rejecting a schoolteacher's claim she had been
wrongfully "constructively discharged by Defendants in violation of
public policy," this Court reasoned as follows: Breach of contract is the proper claim
for a
wrongfully discharged employee who is employed
for a definite term or an employee subject to
discharge only for "just cause." Plaintiff is
not an employee at will because she had
attained the status of a career teacher under
§ N.C. Gen. Stat. 115C-325(c) and could not be
dismissed or demoted except for reasons
specified in Section 115C-325(e)(1).
Wagoner v. Elkin City Schools' BD. of Education, 113 N.C. App. 579,
588-89, 440 S.E.2d 119, 125,(citations omitted)(emphasis added),
disc. review denied, 336 N.C. 615, 447 S.E.2d. 414 (1994).
Finally, in Claggett v. Wake Forest University, 126 N.C. App.
602, 486 S.E.2d 443 (1997), this Court affirmed the trial court's
dismissal of a university professor's tort claim for wrongful
discharge, reiterating that
[b]reach of contract is the remedy for a
wrongfully discharged employee who is employed
for a definite term or who is subject to
discharge only for just cause. Plaintiff
alleges that he was employed pursuant to
teaching appointments of definite duration; he
was not, therefore, an at-will employee.
Id. at 611, 486 S.E.2d at 448.
In the case sub judice, the Agreement explicitly provided that
plaintiff might not be “removed from service or disciplined
(including discharge) except for just and sufficient cause after a
preliminary hearing.” As with the plaintiffs in Wagoner and
Claggett, therefore, “breach of contract [w]as the proper claim,
Wagoner, 113 N.C. App. at 588, 440 S.E.2d at 125, by which
plaintiff herein might have challenged termination of his
employment in that he was “an employee subject to discharge only
for “just cause,” id. Accordingly, an essential element ofplaintiff's wrongful discharge claim was “nonexistent,
8; Roumillat,
331 N.C. at 63, 414 S.E.2d at 342, and the trial court did not err
in granting summary judgment in favor of defendants regarding that
claim. In light of this holding, we further hold the trial court
properly allowed summary judgment as to plaintiff's claim for
punitive damages. See Jones v. Gwynne, 312 N.C. 393, 405, 323
S.E.2d 9, 16 (1984)(before punitive damages may be awarded, “jury
must find that the defendant committed an actionable legal wrong
against the plaintiff”).
Affirmed.
Judges Wynn and McGee concur.
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