An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Appellate Proced ure.

NO. COA02-657

NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2003

KAREN BENDROSS,
    Plaintiff-Appellant,

v .                         Mecklenburg County
                            No. 00 CVS 018187
TOWN OF HUNTERSVILLE,
CHARLES LONG, individually
and as Captain of the
Huntersville Police
Department, BENCE HOYLE,
individually and as Chief
of Police of the Huntersville
Police Department,
HUNTERSVILLE POLICE DEPARTMENT,
    Defendants-Appellees.

    Appeal by plaintiff from order and judgment dated 23 January 2003 by Judge Robert P. Johnston in Superior Court, Mecklenburg County. Heard in the Court of Appeals 13 March 2003.

    Pamela A. Hunter for plaintiff-appellant.

    Cranfill, Sumner & Hartzog, L.L.P., by M. Robin Davis, for defendants-appellees.

    McGEE, Judge.

    Karen Bendross (plaintiff) filed a complaint against the Town of Huntersville (the Town), Charles Long, Bence Hoyle, and the Huntersville Police Department (the Department) (collectively referred to as defendants) on 21 November 2000. Plaintiff's complaint alleged sexual discrimination, intentional infliction of emotional distress, negligent supervision and retention, and negligent infliction of emotional distress. Defendants filed ananswer to the complaint on 30 January 2001 and pled affirmative defenses, including governmental immunity, lack of subject matter jurisdiction, failure to state a claim, and statute of limitations. Following discovery, defendants moved for summary judgment and alternatively for partial summary judgment on 5 October 2001.
    The evidence before the trial court tended to show that plaintiff was employed as a police officer for the Town of Huntersville Police Department on 8 July 1996. Plaintiff stated in her deposition that in May 1997, she was the subject of an internal affairs investigation concerning allegations of a search and seizure violation, conduct unbecoming an officer, and whether she displayed competent performance and achieved competent performance results. Officer Terry Oakes of the Huntersville Police Department made initial recommendations that all three allegations were unfounded. Plaintiff stated that Captain Charles Long (Captain Long) requested that the findings be changed to "not sustained." The final report issued 8 May 1997 concluded the search and seizure violation was not sustained and the conduct unbecoming an officer allegation was unfounded, but failure to display competent performance and achieve competent performance results was sustained. Plaintiff was ordered "to complete an additional 6 months of probation and satisfactorily complete a self study program to improve [her] knowledge and use of law as it applie[d] to [her] current position."
    After the investigation, Captain Long held a conference with plaintiff and Sergeant Cain in which he inquired about an absencefrom work by plaintiff, plaintiff's failure to invite the full department to a farewell party for an officer, plaintiff's failure to complete a radar training class, and plaintiff's failure to conduct a 911 presentation at a local business. Plaintiff testified that when she requested that Sergeant Cain be included in the conference, Captain Long became "irate," yelled at plaintiff, slammed his hands on the desk, and slammed a chair against the wall. Plaintiff was not disciplined as to these allegations.
    Plaintiff complained to Chief Bence Hoyle (Chief Hoyle) in June 1997 that Captain Long was exhibiting hostile behavior towards her because she was a woman. Captain Long subsequently became the subject of an internal affairs investigation and plaintiff participated in a related investigation conference. Plaintiff stated that she could not recall Captain Long doing or saying anything discriminatory after the investigation conference.
    Plaintiff was the subject of a second internal affairs investigation regarding plaintiff's handling of a disabled motorist. The charge was determined to be unfounded and plaintiff was not disciplined.
    Plaintiff obtained a lateral transfer to the position of school resource officer at North Mecklenburg High School in August 1997. In November 1997, plaintiff was the subject of a third internal affairs investigation regarding her handling of an incident at Alexander Middle School. Plaintiff was suspended for one day, received an extension of her probationary period, and was transferred back to her previous patrol officer position.     Plaintiff reported back to her patrol position on 17 November 1997 and resigned from the Department on 21 November 1997. Plaintiff wrote in her letter of resignation to Chief Hoyle that she was "emotionally and mentally [a]ffected by [his] decision" and that she had "been har[r]assed by the department." She also wrote: "I can no longer convince myself that I could be safe and/or welcomed to work under [Chief Hoyle's] or Captain Long's leadership. The two of you have displayed blatant racism towards my heritage and gender." Plaintiff testified in her deposition that there were no incidents or altercations between her and other officers or citizens from the time of her return to a patrol position and her resignation. Plaintiff also stated that she resigned her position because she could not afford "to be in law enforcement and get a termination on my record. It would ruin my career immensely."
    Following a hearing, the trial court granted summary judgment for defendants in an order dated 23 October 2002. Plaintiff appeals.
            Summary judgment should be rendered only when the pleadings, depositions, answers to interrogatories, admissions, and affidavits disclose no genuine issue of material fact entitling the moving party to judgment as a matter of law. If an issue of material fact exists, then the trial court should not grant summary judgment. The party moving for summary judgment has the burden of establishing the absence of any triable issue of fact.

Thomco Realty, Inc. v. Helms, 107 N.C. App. 224, 226, 418 S.E.2d 834, 835-36, disc. review denied, 332 N.C. 672, 424 S.E.2d 407 (1992) (citation omitted).        "The movant may meet this burden by proving that an essential element of the opposing party's claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim."

Id. at 228, 418 S.E.2d at 837 (quoting Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992)).

I. Sexual Discrimination

    Plaintiff first argues the trial court erred in concluding that there was no issue of material fact to support her claim of sexual discrimination. Plaintiff argues that she presented sufficient evidence of specific acts and dates to support her claim.
    Plaintiff bases her claim for sexual discrimination on N.C. Gen. Stat. §§ 143-422.1 et seq., known as our state's Equal Employment Practices Act. N.C. Gen. Stat. § 143-422.2 (2001) states:
        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 race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees.

However, plaintiff has cited no authority showing that a private cause of action exists under the statute. While our state courts have not expressly addressed the issue, federal courts applying the statute have held that no statutory remedy exists. "Neither the North Carolina Supreme Court nor the North Carolina Court ofAppeals has recognized a private cause of action under the NCEEPA. Instead, most courts have applied the NCEEPA only to common law wrongful discharge claims or in connection with other specific statutory remedies." Smith v. First Union Nat. Bank, 202 F.3d 234, 247 (4th Cir. 2000); see McFadden v. Trend Community Health Services, 114 F. Supp. 2d 427, 430 (W.D.N.C. 2000) (dismissing plaintiff's claim under North Carolina's Equal Employment Practices Act because no private right of action is provided under the statute); Percell v. International Business Machines, Inc., 765 F. Supp. 297 (E.D.N.C. 1991) (stating that "[i]n enacting the Equal Employment Practices Act, the North Carolina legislature chose not to provide any remedies beyond those available under federal discrimination statutes"), aff'd, 23 F.3d 402 (4th Cir. 1994).
    Accordingly, we will treat plaintiff's first cause of action as a common law claim for wrongful discharge. The general rule is that an employee without a definite term of employment is an employee-at-will and may be discharged at any time without cause. Coman v. Thomas Manufacturing Co., 325 N.C. 172, 175, 381 S.E.2d 445, 446 (1989). Since the record contains no evidence that plaintiff was employed for a definite term pursuant to an employment contract, plaintiff is considered an employee-at-will.     "[O]ur 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." Considine v. Compass Grp. USA, Inc., 145 N.C. App. 314, 317, 551 S.E.2d 179, 181 (2001). "Under the exception, the employee has the burden of pleading andproving that the employee's dismissal occurred for a reason that violates public policy." Id. The employee "must allege facts which indicate that she was in fact 'discharged.'" 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).
    Plaintiff failed to allege facts in her complaint that indicated that she was discharged by employer. Plaintiff argues in her brief that she was constructively discharged "by the cumulative effect of all the events that occurred against her" while employed with the department. However, "[o]ur courts have only recognized the validity of a claim for constructive discharge 'in the context of interpreting whether constructive termination by [a plaintiff's] employer triggered the termination payment provision of [an] employment contract.'" Beck v. City of Durham, 154 N.C. App. 221, 231, 573 S.E.2d 183, 190 (2002) (quoting Doyle v. Asheville Orthopaedic Assocs., P.A., 148 N.C. App. 173, 177, 557 S.E.2d 577, 579 (2001), disc. review denied, 355 N.C. 348, 562 S.E.2d 278 (2002)). "If plaintiff voluntarily resigned defendant's employ, she cannot bring a claim for wrongful discharge." Gravitte, 109 N.C. App. at 472, 428 S.E.2d at 258.
    As in Gravitte, the evidence in the record demonstrates that plaintiff resigned her position with the Huntersville Police Department and was not discharged. Accordingly, plaintiff may not maintain a cause of action for wrongful discharge against her former employer. The trial court did not err in grantingdefendants' motion for summary judgment on plaintiff's sex discrimination claim. This assignment of error is without merit.
II. Intentional Infliction of Emotional Distress

    Plaintiff argues the trial court erred in granting summary judgment for defendants on plaintiff's claims of intentional infliction of emotional distress. The elements of intentional infliction of emotional distress are: "(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress." Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 487-88, 340 S.E.2d 116, 119, disc. review denied, 317 N.C. 334, 346 S.E.2d 140 (1986). Our Courts have defined severe emotional distress in this context to mean "any emotional or mental disorder, such as, for example, neurosis, psychosis, chronic depression, phobia, or any other type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so." Johnson v. Ruark Obstetrics, 327 N.C. 283, 304, 395 S.E.2d 85, 97, reh'g denied, 327 N.C. 644, 399 S.E.2d 133 (1990); Soderlund v. Kuch, 143 N.C. App. 361, 367, 546 S.E.2d 632, 637, disc. review denied, 353 N.C. 729, 551 S.E.2d 438 (2001). "In ruling on a motion for summary judgment, whether a defendant's alleged acts may be reasonably regarded as extreme and outrageous is initially a question of law." Shreve v. Duke Power Co., 85 N.C. App. 253, 257, 354 S.E.2d 357, 359 (1987). Extreme and outrageous conduct is considered conduct that is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded asatrocious, and utterly intolerable in a civilized community." Hogan, 79 N.C. App. at 493, 340 S.E.2d at 123 (quoting Restatement (Second) of Torts § 46, comment d (1965)).
    The evidence in the record shows that plaintiff was the subject of three internal affairs investigations throughout the time she was employed by the Department. Plaintiff was found to have failed to display competent performance and achieve competent performance results and was ordered to complete six additional months of probation and a self study program. Later in her employment, plaintiff was suspended for three days as a result of her handling of an incident at Alexander Middle School. Plaintiff testified that Captain Long was hostile to her because she was a woman and he became "irate," yelled at plaintiff, slammed his hand on the desk, and slammed a chair against a wall during a conference with her. Plaintiff also stated in her answers to interrogatories that Captain Long refused to shake her hand when she and the new officers first met him. She also stated that Captain Long told her he would make the performance tests easy enough for a woman to pass and had weekly probationary evaluations for plaintiff, but not other probationary employees.
    After reviewing the record, we hold that the evidence presented by plaintiff does not demonstrate extreme and outrageous conduct by defendants. While plaintiff may have had strained working relations with Captain Long and Chief Hoyle, their employment and disciplinary decisions and their personal behavior towards plaintiff did not extend beyond "all possible bounds ofdecency." Id. Accordingly, we hold that the evidence presented by plaintiff does not demonstrate conduct rising to the level of extreme and outrageous conduct sufficient to support a claim for intentional infliction of emotional distress.
    Plaintiff's resignation letter to Chief Hoyle stated that plaintiff's "emotional, physical, and mental abilities are being over challenged by you and your working associates." The letter also stated that plaintiff did not feel welcome or safe in her working conditions. Plaintiff also testified in her deposition that she would cry while in her patrol car and was emotionally unstable during her employment. Plaintiff stated in her deposition that she had not sought medical assistance as a result of her employment. She also had not incurred any medical expenses or received a medical diagnosis as a result of her employment conditions.
    The record does not show that plaintiff presented evidence that she suffered severe emotional distress stemming from her employment with the Huntersville Police Department. Plaintiff alleged in her complaint and testified in her deposition that she resigned her employment because she was "over challenged and emotionally unstable"; however, this evidence does not rise to the level of severe emotional distress. Plaintiff also alleged that she suffered "severe mental anguish and anxiety, post traumatic stress disorder, embarrassment, humiliation, and deprivation of peace of mind" and depression, but the record fails to show evidence of these conditions. Plaintiff failed to present evidencedemonstrating that she suffered from a diagnosable emotional or physical disorder, as our Courts have defined severe emotional distress. See Johnson, 327 N.C. at 304, 395 S.E.2d at 97. Since plaintiff failed to present evidence of the elements of severe emotional distress, we hold the trial court did not err in granting summary judgment for defendants. This assignment of error is overruled.
III. Negligent Infliction of Emotional Distress

    The elements of negligent infliction of emotional distress are: "(1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause plaintiff severe emotional distress . . . , and (3) the conduct did in fact cause the plaintiff severe emotional distress." Id. As previously stated, we conclude from our review of the record that plaintiff has failed to forecast sufficient evidence that she suffered from a diagnosable emotional or physical disorder, as our Courts have defined severe emotional distress. See id. Accordingly, there is no genuine issue of material fact regarding plaintiff's allegation of severe emotional distress and defendants were entitled to summary judgment. The trial court did not err in granting summary judgment to defendants on plaintiff's claim for negligent infliction of emotional distress. This assignment of error is without merit.    
IV. Negligent Retention and Supervision

    Plaintiff argues the trial court erred in granting summary judgment for defendants on plaintiff's claim of negligentsupervision and retention of plaintiff's supervisors. "To support a claim of negligent retention and supervision against an employer, the plaintiff must prove that 'the incompetent employee committed a tortious act resulting in injury to plaintiff and that prior to the act, the employer knew or had reason to know of the employee's incompetency.'" Smith v. Privette, 128 N.C. App. 490, 494-95, 495 S.E.2d 395, 398 (1998) (quoting Graham v. Hardee's Food Systems, 121 N.C. App. 382, 385, 465 S.E.2d 558, 560 (1996)).
    The statute of limitations for the tort of negligent supervision and retention is three years. N.C. Gen. Stat. § 1- 52(5) (2001).     Plaintiff has failed to show that an employee of the Department or the Town committed a tortious act against plaintiff within the three years preceding the filing of plaintiff's complaint. Since we have already upheld summary judgment for defendants on all of plaintiff's claims that allege tortious conduct on the part of an employee, there is no surviving claim that alleges tortious conduct on the part of an employee. See Waddle v. Sparks, 331 N.C. 73, 87, 414 S.E.2d 22, 29-30 (1992); Graham v. Hardee's Food Systems, 121 N.C. App. 382, 385, 465 S.E.2d 558, 560 (1996). Additionally, there is no evidence in the record showing a tortious act by an employee of the Department or the Town. Accordingly, there is no genuine issue of material fact as to plaintiff's claim for negligent supervision and retention and the trial court did not err in granting defendants' motion for summary judgment. This assignment of error is without merit.
    We have reviewed plaintiff's remaining arguments and find themto be without merit.
    Affirmed.
    Judge HUDSON concurs.
    Judge STEELMAN concurs in the result with a separate opinion.
    Report per Rule 30(e).
NO. COA02-657

NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2003

KAREN BENDROSS,
    Plaintiff

v .                         Mecklenburg County
                            No. 00 CVS 18187
TOWN OF HUNTERSVILLE,
CHARLES LONG, individually
and as Captain of the
Huntersville Police
Department, BENCE HOYLE,
individually and as Chief
of Police of the Huntersville
Police Department, and
HUNTERSVILLE POLICE
DEPARTMENT,
    Defendants

    STEELMAN, Judge, concurring with separate opinion.
    I concur in the result reached by the majority.
    Plaintiff's complaint was filed on 21 November 2000. The uncontroverted evidence in this case was that the last action taken by any of the defendants which could have been the basis for any of plaintiff's claims occurred on 17 November 1997. A three-year statute of limitations applies to each of plaintiff's claims of intentional infliction of emotional distress, negligent infliction of emotional distress and negligent retention and supervision, N.C. Gen. Stat. § 1-52(5) (2001), as well as the sexual discrimination claim, N.C. Gen. Stat. § 1-52(2).
    I would affirm the trial court's grant of summary judgment because, as defendants argued, each of plaintiff's claims was barred by the applicable statute of limitations.

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