Appeal by plaintiff from orders entered 25 February 2002 and
8 March 2002 by Judge Kimberly S. Taylor in Burke County Superior
Court. Heard in the Court of Appeals 16 April 2003.
Mark James Brackett, pro se, for plaintiff-appellant.
Parker, Poe, Adams & Bernstein, L.L.P., by Jonathan M. Crotty
and John B. Anderson, for defendant-appellee.
MARTIN, Judge.
Plaintiff filed this action alleging defendant's violation of
the North Carolina Retaliatory Employment Discrimination Act
(“REDA”). Plaintiff sought compensatory and punitive damages and
injunctive relief. According to the allegations of the complaint,
plaintiff alleges he developed skin lesions on his arm due to burns
sustained at work during 1998. He reported these injuries to
defendant in the fall of 1999, took medical leave, and requested
that defendant pay for surgical removal of the lesions. He was
released to return to work by the company doctor on 1 December
1999. Plaintiff alleged that on 2 December 1999 he was falsely
accused by defendant of working for another employer during his
leave. Defendant terminated plaintiff's employment, denied
liability for his alleged injuries, and refused to pay for hismedical expenses.
On 2 June 2000, plaintiff filed a REDA claim against defendant
with the North Carolina Department of Labor (“NCDOL”), alleging he
was fired because he reported an on-the-job injury. Plaintiff
received a “right-to-sue” letter from the NCDOL on 22 June stating
that it was dismissing plaintiff's complaint due to his failure to
file the REDA claim within 180 days of the alleged discriminatory
discharge as required by statute. Plaintiff was subsequently
reinstated by defendant on 28 August 2000 and returned to work.
Based on the right-to-sue letter, plaintiff filed the instant
civil action in Burke County Superior Court on 20 September 2000.
On 22 November 2000, defendant filed a “Motion for Judgment as a
Matter of Law,” citing G.S. § 1A-1, Rules 12(b)(6) and 56(b),
asserting plaintiff's claim is time-barred. Eleven months
thereafter, plaintiff filed a Motion to Amend seeking to allege
that defendant had, since plaintiff's return to work, committed an
additional discriminatory act under REDA. Before the motions were
heard, plaintiff filed a Supplemental Motion For Leave to Amend on
21 February 2002, in which he also sought to allege a common law
claim for wrongful discharge. Plaintiff appeals from the trial
court's orders dismissing his complaint with prejudice and denying
his Motion to Amend and Supplemental Motion for Leave to Amend.
__________________________________
By his assignments of error, plaintiff asserts the trial court
erred in (1) granting defendant's motion and dismissing plaintiff's
complaint and (2) denying plaintiff's motions to amend hiscomplaint.
Plaintiff first asserts that although he filed his REDA claim
with the NCDOL over 180 days after the alleged discriminatory
discharge, his claim should not have been dismissed. We note at
the outset that the trial court appears to have proceeded under
Rule 12(b)(6) in dismissing plaintiff's complaint. Although the
trial court must have necessarily considered plaintiff's
administrative complaint and/or right-to-sue letter, documents not
attached to the complaint, in ruling on the motion, because
plaintiff referred to these documents in the complaint and they
form the procedural basis for the complaint, the trial court did
not convert the motion into one for summary judgment by doing so.
See Scott v. United Carolina Bank, 130 N.C. App. 426, 428, 503
S.E.2d 149, 151 (1998) (consideration of trust indenture referred
to in complaint did not convert 12(b)(6) motion to one for summary
judgment),
disc. review denied, 350 N.C. 99, 528 S.E.2d 584 (1999);
Brooks Distributing Co. v. Pugh, 91 N.C. App. 715, 717-18, 373
S.E.2d 300, 302 (1988) (consideration of contracts presented by
defendants at pre-trial conference which were subject of action did
not convert motion to one for summary judgment),
reversed on other
grounds, 324 N.C. 326, 378 S.E.2d 31 (1989).
To determine whether a complaint is
sufficient to survive a Rule 12(b)(6) motion
to dismiss, the court must ascertain
“'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.'”
Pursuant to Rule 12(b)(6), a complaint should
be dismissed “'if no law exists to support the
claim made, if sufficient facts to make out agood claim are absent, or if facts are
disclosed which will necessarily defeat the
claim.'”
Plummer v. Community General Hosp., ___ N.C. App. ___, ___, 573
S.E.2d 596, 598 (2002) (citations omitted).
G.S. § 95-242, a provision of REDA, states in pertinent part:
(a) An employee allegedly aggrieved by a
violation of G.S. 95-241 may file a written
complaint with the Commissioner of Labor
alleging the violation.
The complaint shall be
filed within 180 days of the alleged violation
. . . .
N.C. Gen. Stat. § 95-242(a) (2002) (emphasis added). Citing
Commissioner of Labor v. House of Raeford Farms, 124 N.C. App. 349,
477 S.E.2d 230 (1996),
disc. review improv. allowed, 347 N.C. 347,
492 S.E.2d 354 (1997), plaintiff contends the 180-day statutory
time limit should not be strictly construed. Plaintiff relies, in
particular, on
the Court's statement
that:
Generally, “statutory time periods are . . .
considered to be directory rather than
mandatory unless the legislature expresses a
consequence for failure to comply within the
time period.” Mandatory provisions are
jurisdictional, while directory provisions are
not.
Id. at 353-54, 477 S.E.2d at 233 (citations omitted). Because G.S.
§ 95-242(a) provides no express consequence for failure to file a
REDA claim with the NCDOL within 180 days, plaintiff asserts the
time limit is merely “directory, not mandatory.”
Plaintiff's reliance on
House of Raeford Farms is misplaced.
House of Raeford Farms dealt with a claims processing time limit
imposed on the NCDOL, the agency responsible for reviewing REDA
claims under the statute. In declaring the time limit was notmandatory, the Court specifically expressed concern about
interpreting the statute to allow agency delay to prejudice the
claims of private citizens,
id. at 356, 477 S.E.2d at 234, and
cited similar decisions
regarding statutory time limits on the
actions of governmental authorities processing private claims.
See, e.g., Brock v. Pierce County, 476 U.S. 253, 90 L. Ed. 2d 248
(1986);
State ex rel. Utilities Comm. v. Empire Power Co., 112 N.C.
App. 265, 435 S.E.2d 553 (1993),
disc. review denied, 335 N.C. 564,
441 S.E.2d 125 (1994). Thus, we decline to extend the rationale of
House of Raeford Farms to the filing time limit at issue in the
present case.
Although there is no express statutory consequence for failing
to meet the 180-day time limit set forth in G.S. § 95-242(a), case
law precedent indicates the limit is a mandatory one. For example,
G.S. § 95-243 contains a time limit provision similar to the one at
issue:
(a) An employee who has been issued a
right-to-sue letter . . . may commence a civil
action in the superior court . . . .
(b) A civil action under this section
shall be
commenced by an employee within 90 days of the
date upon which the right-to-sue letter was
issued . . . .
N.C. Gen. Stat. § 95-243 (2002) (emphasis added). In
Telesca v.
SAS Inst.,
Inc., 133 N.C. App. 653, 516 S.E.2d 397,
disc. review
denied, 351 N.C. 120, 540 S.E.2d 749 (1999), this 90-day limit was
interpreted as mandatory, though the statute contains no express
consequence for failure to meet the deadline. In addition, 42
U.S.C. § 2000e-5(e) uses similar language to describe the time forfiling charges of employment discrimination under Title VII of the
Civil Rights Act of 1964:
(1) A charge under this section
shall be filed
within one hundred and eighty days after the
alleged unlawful employment practice occurred
. . . .
42 U.S.C. § 2000e-5(e)(1) (2003) (emphasis added). In
Amtrak v.
Morgan, the United States Supreme Court declared this 180-day
limitation to be mandatory, holding that “a claim is time barred if
it is not filed within [this] time limit[].” 536 U.S. 101, 108-09,
153 L. Ed. 2d 106, 119 (2002) (“'strict adherence to the procedural
requirements specified by the legislature is the best guarantee of
evenhanded administration of the law'” (citations omitted)). We
believe the 180-day time limit for filing a REDA claim with the
NCDOL should be similarly construed. Thus, we hold the 180-day
time limit for filing a REDA claim with the NCDOL is mandatory.
Plaintiff's remaining argument that where the time limits of
REDA conflict with G.S. § 1-52, § 1-52 should control, is clearly
without merit.
See N.C. Gen. Stat. § 1-52(2) (2003) (civil action
must be commenced within three years “[u]pon a liability created by
statute, . . . unless some other time is mentioned in the statute
creating it”). Because plaintiff's administrative REDA complaint
and right-to-sue letter show clearly that plaintiff filed his REDA
claim with the NCDOL over 180 days after the alleged discriminatory
discharge, the trial court did not err in concluding that
plaintiff's complaint failed to state a claim under REDA and the
dismissal of that claim with prejudice is affirmed.
Plaintiff next argues the trial court erred in denying hismotions for leave to amend the complaint by adding (1) a REDA claim
based on alleged retaliatory conduct by defendant after the
original complaint was filed and (2) a claim for wrongful discharge
in violation of public policy based on the original alleged
discriminatory discharge. “A party may amend his pleading once as
a matter of course at any time before a responsive pleading is
served . . . . Otherwise a party may amend his pleading only by
leave of court . . . ; and leave shall be freely given when justice
so requires.” N.C. Gen. Stat. § 1A-1, Rule 15(a) (2003). In
contrast, “[u]pon motion of a party the court may, . . . upon such
terms as are just, permit him to serve a supplemental pleading
setting forth . . . occurrences or events which may have happened
since the date of the pleading sought to be supplemented . . . .”
N.C. Gen. Stat. § 1A-1, Rule 15(d) (2003).
Plaintiff's motion to amend to assert an additional REDA claim
based on an alleged post-complaint incident of discrimination falls
under Rule 15(d). A trial court's decision to grant or deny a
motion to serve supplemental pleadings is reviewable only for abuse
of discretion.
Miller v. Ruth's of North Carolina, Inc., 69 N.C.
App. 153, 316 S.E.2d 622 (1984). Aside from failing to meet any of
the time limitations discussed above, without a right-to-sue letter
issued by the Commissioner of Labor, a plaintiff may not file a
civil action for an alleged violation of REDA. N.C. Gen. Stat. §
95-243(e) (2003).
Because plaintiff failed to file his additional
REDA claim with the NCDOL before seeking to add it to the instant
complaint, the trial court properly determined that grantingplaintiff leave to add it to the complaint would be futile and
denied the motion.
See North Carolina Council of Churches v.
State, 120 N.C. App. 84, 461 S.E.2d 354 (1995) (noting that motion
under either Rule 15(a) or (d) may be denied if proposed amendment
futile).
Plaintiff's motion seeking to add to his complaint a claim for
wrongful discharge in violation of public policy based on the
original discriminatory discharge is properly considered under Rule
15(a).
See Williams v. Rutherford Freight Lines, Inc., 10 N.C.
App. 384, 391-92, 179 S.E.2d 319, 325 (1971) (“amendments [under
Rule 15(a)] relate to occurrences, transactions and events that
could have been, but for some reason were not, alleged in the
pleadings sought to be amended”).
As such, because defendants had
yet to file a responsive pleading and the trial court had yet to
rule on defendant's Rule 12 motion when plaintiff made the motion
to amend, it would appear that plaintiff was entitled to amend the
complaint as a matter of right.
See Johnson v. Bollinger, 86 N.C.
App. 1, 7, 356 S.E.2d 378, 382 (1987) (motion to dismiss is not
responsive pleading, though trial court's dismissal of complaint
terminates right to amend). Nonetheless, the trial court denied
the motion to amend as futile.
North Carolina follows the at-will employment doctrine, which
dictates that “in the absence of a contractual agreement . . .
establishing a definite term of employment, the relationship is
presumed to be terminable at the will of either party without
regard to the quality of performance of either party.”
Kurtzman v.Applied Analytical Industries, Inc., 347 N.C. 329, 331, 493 S.E.2d
420, 422 (1997),
reh'g denied, 347 N.C. 586, 502 S.E.2d 594 (1998).
One of the few exceptions to this doctrine is the public policy
exception.
There is no specific list of what actions
constitute a violation of public policy.
However, wrongful discharge claims have been
recognized in North Carolina where the
employee was discharged (1) for refusing to
violate the law at the employers request, (2)
for engaging in a legally protected activity,
or (3) based on some activity by the employer
contrary to law or public policy.
Ridenhour v. IBM, 132 N.C. App. 563, 568-69, 512 S.E.2d 774, 778,
disc. review denied, 350 N.C. 595, 537 S.E.2d 481 (1999)
. Wrongful
discharge in violation of public policy is a tort claim,
Paquette
v. County of Durham, ___ N.C. App. ___, ___, 573 S.E.2d 715, 718
(2002),
disc. review denied, ___ N.C. ___, ___ S.E.2d ___ (1 May
2003), and to prevail on this claim, an employee must “plead[] and
prov[e] that the employee's dismissal occurred for a reason that
violates public policy.”
Salter v. E & J Healthcare,
Inc., ___
N.C. App. ___, ___, 575 S.E.2d 46, 51 (2003).
Recently, in
Salter, this Court analyzed whether “a claim of
wrongful discharge based upon North Carolina public policy of not
punishing employees for exercising their statutory rights under the
Workers' Compensation Act was tenable . . . .” ___ N.C. App. at
___, 575 S.E.2d at 54. Although the Court concluded that it
arguably was, it did not decide the issue definitively because the
evidence
proffered by the plaintiff in that case would not have
sustained the claim.
Id. Now that the issue is squarely beforeus, we agree with the reasoning of
Salter on this issue.
Pursuing one's rights under the Workers' Compensation Act,
G.S. §§ 97-1
et seq. (2003), is a legally protected activity.
See
N.C. Gen. Stat. § 95-241(a)(1)a. (2003); (former) § 97-6.1
(repealed 1991). “[P]ublic 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) (plaintiffs
stated claim for wrongful discharge in violation of public policy
where allegedly forced to work for less than minimum wage in
violation of state Wage and Hour Act). Moreover, the statutory
remedy available for violation of this public policy does not
“diminish the rights or remedies of any employee . . . at common
law.”
N.C. Gen. Stat. § 95-244 (2002). Therefore, a plaintiff may
state a claim for wrongful discharge in violation of public policy
where he or she alleges the dismissal resulted from an assertion of
rights under the Workers' Compensation Act. The statute of
limitations for such a claim is three years. N.C. Gen. Stat. § 1-
52(5) (2003).
The transcript of the hearing indicates the trial court
decided plaintiff's amendment would be futile in light of this
Court's decision in
Trexler v. Norfolk S. Ry. Co., 145 N.C. App.
466, 550 S.E.2d 540 (2001). Defendant asserts that
Trexler stands
for the principle that employees who are employed pursuant to union
agreements are not at-will employees and therefore cannot sue in
tort for wrongful discharge. However, in
Trexler, the exact termsof the plaintiff's union agreement were cited as evidence that he
could only be fired for just cause and was thus not an at-will
employee.
Id. at 471-72, 550 S.E.2d at 543. In the present case,
although defendant asserted in its legal memorandum to the trial
court and argued at the hearing that plaintiff was a union employee
subject to discharge only for just cause under a collective
bargaining agreement, plaintiff did not stipulate to this statement
and neither party offered the collective bargaining agreement into
evidence. Since the terms of the purported union agreement were
not before the trial court, they could not have provided a proper
basis for denying the motion to amend and dismissing the complaint.
See Hankins v. Somers, 39 N.C. App. 617, 620, 251 S.E.2d 640, 642
(trial court “should rely only on material that would be admissible
at trial in ruling on” motion to dismiss or for judgment),
disc.
review denied, 297 N.C. 300, 254 S.E.2d 920 (1979). The trial
court could only have made its ruling on the basis of defendant's
characterization of an agreement not in evidence or a
misunderstanding of the scope of
Trexler. In either event,
plaintiff's motion to amend the complaint by adding a claim for
wrongful discharge in violation of public policy may not have been
futile and the denial of the motion could not have been the result
of a reasoned decision. Therefore, we reverse the trial court's
denial of plaintiff's motion to amend by adding a claim for
wrongful discharge and remand this matter for further proceedings
consistent with this opinion.
Affirmed in part; reversed in part and remanded. Judges HUDSON and ELMORE concur.
*** Converted from WordPerfect ***