JAMES EDWARD IMES, Plaintiff, v. CITY OF ASHEVILLE, CCL
MANAGEMENT, INC., and ASHEVILLE CITY COACH LINES, INC.,
The trial court did not err by granting defendants' motions to dismiss plaintiff at-will
employee's claim for wrongful discharge even though plaintiff contends he was terminated in
violation of public policy based on his status as a victim of domestic violence, because: (1) the
complaint did not allege that defendants' conduct violated any explicit statutory or constitutional
provision, nor did it allege defendants encouraged plaintiff to violate any law that might result in
potential harm to the public; (2) the complaint did not allege any of the narrow exceptions to the
employment-at-will doctrine grounded in considerations of public policy designed either to
prohibit status-based discrimination or to insure the integrity of the judicial process or the
enforcement of the law; and (3) although domestic violence is a serious social problem, the
Court of Appeals cannot create public policy exemptions where none exist.
Appeal by plaintiff from order entered 30 October 2002 by
Judge Dennis J. Winner in Superior Court, Buncombe County. Heard
in the Court of Appeals 28 October 2003.
By this appeal, Plaintiff James Edward Imes contends the trial
court erred in granting motions to dismiss his complaint for
wrongful discharge against Defendants City of Asheville, CCL
Management, Inc., and Asheville City Coach Lines, Inc. Plaintiff
argues the termination of his employment with Defendants violatedpublic policy of this State. We conclude Plaintiff's complaint
failed to state a claim for wrongful discharge in violation of
public policy, and we therefore affirm the order of the trial
The pertinent facts of the instant appeal are as follows: On
22 July 2002, Plaintiff filed a verified complaint in Buncombe
County Superior Court alleging wrongful discharge in violation of
public policy. The complaint alleged Plaintiff was an employee-at-
will with Asheville City Coach Lines, Inc. from 1974 until his
termination on 17 August 2001. Plaintiff alleged Defendants CCL
Management, Inc. and/or Asheville City Coach Lines, Inc. acted and
served as agents to the City of Asheville. According to the
complaint, Plaintiff was terminated after he was hospitalized for
serious injuries he sustained when his wife shot him on or about 12
July 2001. Plaintiff alleged his supervisor informed him he was
being terminated due to the Plaintiff being a victim of domestic
violence. As a victim of domestic violence, Plaintiff alleged he
was a member of a class of persons sought to be protected by the
laws of the state of North Carolina and therefore his termination
violated public policy in that, termination of any employment
based on the employee's status as a victim of domestic violence
tends to be injurious to the public and against the public good.
On 30 October 2002, the trial court entered an order granting
Defendants' motions to dismiss Plaintiff's complaint, from which
_______________________________________________________ The issue on appeal is whether Plaintiff's complaint states a
valid claim for wrongful discharge in violation of public policy.
For the reasons stated herein, we conclude the complaint fails to
state a claim upon which relief may be based, and we affirm the
order of the trial court.
A motion to dismiss for failure to state a claim upon which
relief may be granted challenges the legal sufficiency of a
pleading. Considine v. Compass Grp. USA, Inc
., 145 N.C. App. 314,
316-17, 551 S.E.2d 179, 181, affirmed per curiam
, 354 N.C. 568, 557
S.E.2d 528 (2001)
. In ruling on a motion to dismiss under Rule
12(b)(6), a court must determine whether, taking all allegations in
the complaint as true, relief may be granted under any recognized
legal theory. Taylor v. Taylor
, 143 N.C. App. 664, 668, 547 S.E.2d
161, 164 (2001). A complaint may be dismissed for failure to state
a claim if no law supports the claim, if sufficient facts to make
out a good claim are absent, or if a fact is asserted that defeats
the claim. Shell Island Homeowners Ass'n v. Tomlinson
, 134 N.C.
App. 217, 225, 517 S.E.2d 406, 413 (1999).
In the instant case, Plaintiff was employed at will. Although
at-will employment may be terminated '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. A different interpretation would encourage and
sanction lawlessness, which law by its very nature is designed to
discourage and prevent.' Coman v. Thomas Manufacturing Co.
N.C. 172, 175, 381 S.E.2d 445, 447 (1989) (quoting Sides v. DukeUniversity
, 74 N.C. App. 331, 342, 328 S.E.2d 818, 826, disc.
, 314 N.C. 331, 333 S.E.2d 490 (1985), overruled in
part on other grounds
, Kurtzman v. Applied Analytical Industries,
., 347 N.C. 329, 493 S.E.2d 420 (1997)). The narrow exceptions
to [the employment-at-will doctrine] have been grounded in
considerations of public policy designed either to prohibit
status-based discrimination or to insure the integrity of the
judicial process or the enforcement of the law. Kurtzman
N.C. at 333-34, 493 S.E.2d at 423.
To state a claim for wrongful discharge in violation of public
policy, an employee has the burden of pleading that his dismissal
occurred for a reason that violates public policy. Considine
N.C. App. at 317, 551 S.E.2d at 181; see also Kurtzman
, 347 N.C. at
331, 493 S.E.2d at 422; Salter v. E & J Healthcare, Inc.
, 155 N.C.
App. 685, 693, 575 S.E.2d 46, 51 (2003). Public policy has been
defined as the principle of law which holds that no citizen can
lawfully do that which has a tendency to be injurious to the public
or against the public good. Coman
, 325 N.C. at 175 n.2, 381
S.E.2d at 447 n.2. Although this definition of public policy does
not include a laundry list of what is or is not 'injurious to 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. Amos v. Oakdale Knitting Co.
, 331 N.C. 348, 353, 416
S.E.2d 166, 169 (1992) (footnote omitted).
Wrongful discharge claims have been recognized in NorthCarolina where the employee was discharged (1) for refusing to
violate the law at the employer's request, see
N.C. at 175, 381 S.E.2d at 447 (holding the complaint stated a
claim for wrongful discharge in violation of public policy where
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); Sides
N.C. App. at 343, 328 S.E.2d at 826-27 (holding that the
plaintiff's complaint stated an enforceable claim for wrongful
discharge where the employee was wrongfully discharged in
retaliation for refusing to testify falsely in a medical
(2) for engaging in a legally protected
activity, see Vereen v. Holden
, 121 N.C. App. 779, 784, 468 S.E.2d
471, 474 (1996) (holding that the plaintiff alleged sufficient
facts in his complaint to state a claim for wrongful discharge
where he alleged he was discharged due to his political affiliation
and activities), disc. review denied
, 347 N.C. 410, 494 S.E.2d 600
(1997), or (3) based on activity by the employer contrary to law or
public policy. See Amos
, 331 N.C. at 350, 416 S.E.2d at 167
(holding that firing an employee for refusing to work for less than
the statutory minimum wage violated North Carolina public policy);
Simmons v. Chemol Corp
., 137 N.C. App. 319, 322, 528 S.E.2d 368,
370 (2000) (recognizing claim for wrongful discharge in violation
of public policy where the employee alleged he was handicapped and
that his employer discharged him because of his handicap in
violation of N.C. Gen. Stat. § 143-422.2). The complaint filed in the instant case does not allege that
Defendants' conduct violated any explicit statutory or
constitutional provision, nor does it allege Defendants encouraged
Plaintiff to violate any law that might result in potential harm to
the public. Instead, the complaint alleged that domestic violence
is a serious social problem in North Carolina and that
termination of any employment based on the employee's status as a
victim of domestic violence tends to be injurious to the public and
against the public good. Plaintiff acknowledges that there are
no North Carolina cases which specifically carve out a public
policy exception to the employment-at-will doctrine based on
domestic violence. Nor does Plaintiff cite North Carolina
statutory law in support of his position.
While Chapter 50B of our General Statutes contains various
protections for victims of domestic violence, see
N.C. Gen. Stat.
§ 50B-1 et seq.
, it does not establish victims of domestic violence
as a protected class of persons or extend employment security
status to such persons. Compare
N.C. Gen. Stat. § 143-422.2 (2003)
(stating that [i]t 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
We do not dispute Plaintiff's allegation, nor the dissent's
position, that domestic violence is a serious social problem forour State and is recognized as such by our General Assembly and the
Governor. It is, however, but one of many social problems
addressed by our General Statutes. Poverty, child abuse, juvenile
delinquency, substance abuse -- all are examples of social ills our
General Statutes seek to alleviate. See, e.g.,
N.C. Gen. Stat. §
108A-24 et seq
. (creating public assistance programs); N.C. Gen.
Stat. § 14-313 et seq.
(protection of minors); N.C. Gen. Stat. §
143B-540 (providing for comprehensive juvenile delinquency and
substance abuse prevention plan). All such statutes may be read to
express a general public policy in favor of protection of victims
of poverty, child abuse, substance abuse, etc. We do not interpret
such statutes, however, as creating specialized and protected
classes of persons entitled to employment and other status
protection. If the General Assembly desires to exempt victims of
domestic violence from the at-will employment doctrine, it is free
to do so. This Court, however, may not create public policy
exemptions where none exist.
Plaintiff has failed to identify any specified North Carolina
public policy that was violated by Defendants in terminating his
employment. The complaint does not allege that Defendants' conduct
violated any explicit statutory or constitutional provision, nor
does it allege Defendants encouraged Plaintiff to violate any law
that might result in potential harm to the public. Considine
N.C. App. at 321-22, 551 S.E.2d at 184. The complaint does not
allege any of the narrow exceptions to [the employment-at-will
doctrine] . . . grounded in considerations of public policydesigned either to prohibit status-based discrimination or to
insure the integrity of the judicial process or the enforcement of
the law. Kurtzman
, 347 N.C. at 333-34, 493 S.E.2d at 423. Any
exception to the at-will employment doctrine should be adopted
only with substantial justification grounded in compelling
considerations of public policy. Id
. at 334, 493 S.E.2d at 423.
Because Plaintiff's complaint failed to articulate such compelling
grounds to justify an exception to Defendants' right to terminate
his employment, we must hold the trial court properly granted
Defendants' motions to dismiss.
The order of the trial court is hereby,
Judge ELMORE concurs.
Judge TIMMONS-GOODSON dissents.
TIMMONS-GOODSON, Judge, dissenting.
Because I conclude that plaintiff sufficiently alleged a cause
of action for wrongful termination, I respectfully dissent.
In the case sub judice
, both parties agree that plaintiff was
discharged from his employment.
Plaintiff asserts that defendants
violated public policy when they terminated plaintiff for his
involvement in a domestic violence incident. Plaintiff makes the
following pertinent allegations in his complaint:
7. Plaintiff was employed at will by
Asheville City Coach Lines, Inc. for
approximately 27 1/2 years, from approximately
1974 until his termination on August 17, 2001.
8. Prior to his termination, the Plaintiffwas a victim of domestic violence, in that, on
or about July 12, 2001, he was shot and
seriously injured by his wife, Sandra Imes,
after she accused Plaintiff of an extramarital
9. The gunshot wound sustained by the
Plaintiff required him to seek the help of a
neighbor to contact the police and to be taken
by ambulance to the hospital followed by a
several-day hospitalization period and
10. Within days of receiving his gunshot
injury, the Plaintiff contacted the Defendant
Asheville City Coach Lines, Inc. and/or the
City of Asheville Transit Services Department
to inform his general manager of the
circumstances, the Plaintiff's need for
surgery, and the Plaintiff's need to miss
11. On or about August 17, 2001, the
Plaintiff's general manager, Larnel Blair,
informed the Plaintiff that the Plaintiff was
terminated from his employment.
. . . .
13. On August 17, 2001, Larnel Blair informed
the Plaintiff that he was being terminated due
to the Plaintiff being a victim of domestic
14. Domestic violence is a serious social
problem in North Carolina, recognized as such
by the legislative, executive, and judicial
branches of the state government.
15. The Plaintiff was a victim of domestic
violence and as such was a member of a class
of persons sought to be protected by the laws
of the state of North Carolina.
16. The termination of Plaintiff's employment
by the Defendants based on the Plaintiff's
status as a victim of domestic violence
violates the public policy of this state, in
that, termination of any employment based on
the employee's status as a victim of domestic
violence tends to be injurious to the public
and against the public good.
I agree with the majority that North Carolina has not yet held
that an employer violates public policy when the employer
discharges an employee solely because of the employee's status as
a victim of domestic violence. However, I note that this Court has
previously characterized public policy as a vague expression,
left to the appropriate province of the courts to interpret.
McLaughlin v. Barclays American Corp.
, 95 N.C. App. 301, 305, 307,
382 S.E.2d 836, 839, 840, cert. denied
, 325 N.C. 546, 385 S.E.2d
Thus, [t]here is no 'bright-line' test for
determining when the termination of an at-will employee violates
public policy. Teleflex Info. Sys., Inc. v. Arnold
, 132 N.C. App.
689, 691, 513 S.E.2d 85, 87 (1999). Our Supreme Court has
previously explained why no definitive test exists:
Although it may be tempting to refine the
definition of public policy in order to
formulate a more precise and exact definition,
we decline to do so. Any attempt to make the
definition more precise would inevitably lead
to at least as many questions as answers.
True to common law tradition, we allow this
still evolving area of the law to mature
slowly, deciding each case on the facts before
Amos v. Oakdale Knitting Co.
, 331 N.C. 348, 353, n.1, 416 S.E.2d
166, 169, n.1 (1992). Therefore, as public policy evolves, so must
this Court's ability to find a wrongful discharge in violation of
I find it persuasive that a number of our fellow states have
found that assisting victims of domestic violence is a matter of
public policy. See Attorney Grievance Commission of Maryland v.Painter
, 356 Md. 293, 307, 739 A.2d 24, 32 (1999) (respondent
attorney disbarred for committing domestic violence against his
wife and children contrary to the policy of this State, which
abhors such acts.); In re Principato
, 139 N.J. 456, 461, 655 A.2d
920, 922 (1995) (attorney who committed domestic violence on client
reprimanded by court, which found that [i]n enacting the
Prevention of Domestic Violence Act of 1991, the Legislature
recognized that 'domestic violence is a serious crime against
society' that affects people 'from all social and economic
backgrounds and ethnic groups.' The policy of New Jersey is 'that
violent behavior will not be excused or tolerated.' (citations
I also find persuasive the actions of our own state
legislature in defining our laws regarding domestic violence and
its victims. In 1979, the North Carolina Legislature enacted the
North Carolina Domestic Violence Act, a series of statutes designed
to protect victims of domestic violence from perpetrators of
N.C. Gen. Stat. ch. 50B (2003). In N.C. Gen.
Stat. § 50B-3(a), the Legislature specifically authorized courts to
issue protective orders to an aggrieved party in order to bring
about a cessation of acts of domestic violence. The Legislature
further authorized courts to order an offending party to refrain
from . . . harassing [an aggrieved party] . . . by . . . visiting
the home or workplace
, or other means[.] N.C. Gen. Stat. § 50B-
3(a)(9) (emphasis added). Nevertheless, if an individual is forced
to leave work or is discharged from work as a result of domesticviolence committed upon the [individual], N.C. Gen. Stat. § 96-
14(1f) (2003) ensures that the individual is not denied employment
I find the authorizations detailed in N.C. Gen. Stat. §§ 50B-
3(a) and 96-14(1f) relevant to the case sub judice
discussing the impetus behind the Domestic Violence Act in State v.
, our Supreme Court noted that the Act was a formal
recognition by then-Governor James B. Hunt, Jr., that domestic
violence is a 'serious and invisible problem' in North Carolina.
349 N.C. 483, 486, 508 S.E.2d 277, 279 (1998) (quoting North
Carolina Legislation 1979, at 61 (Inst. of Gov't, Univ. of N.C. at
Chapel Hill, Joan G. Brannon & Ann L. Sawyer eds. 1979)). While I
agree with the Court's conclusion that the Domestic Violence Act
formally recognized the problems associated with domestic violence,
I conclude that the Act also formally recognized that the perils of
domestic violence are often experienced in the workplace. In
response to this recognition, the Legislature took the affirmative
steps detailed in §§ 50B-3(a) and 96-14(1f). Noting that any
exception to the at-will employment doctrine should be adopted
only with substantial justification grounded in compelling
considerations of public policy, Kurtzman v. Applied Analytical
, 347 N.C. 329, 334, 493 S.E.2d 420, 423 (1997),
for the reasons detailed above, I conclude that the Domestic
Violence Act and the pertinent Employment Security Law provisions
detailed herein represent an expression of North Carolina's strong
public policy aimed not only at supporting victims of domesticviolence, but also at preventing the effects of domestic violence
from entering the workplace.
In Considine v. Compass Grp. USA, Inc.
, this Court held that
an at-will employee may only bring a wrongful discharge claim based
on a violation of established public policy. 145 N.C. App. 314,
317, 551 S.E.2d 179, 183 (2001). In his complaint, plaintiff
specifically alleges that his discharge for being the victim of
domestic violence was in violation of North Carolina's public
policy to protect victims of domestic violence, and that the
violation was injurious to the public and against the public
good. I conclude that plaintiff's complaint sufficiently alleges
that plaintiff's discharge violated public policy. Therefore, I
would hold that no insurmountable bar to recovery appears on the
face of the complaint. Forbis v. Honeycutt
, 301 N.C. 699, 701, 273
S.E.2d 240, 241 (1981). Furthermore, defendants make no argument,
and I perceive no reason to hold, that plaintiff's allegations are
insufficient to give defendants notice of the nature and basis of
[plaintiff's] claim[,] so as to enable [defendants] to answer and
prepare for trial. Id
. Thus, I conclude that plaintiff has
sufficiently alleged a cause of action for wrongful discharge in
violation of public policy. Therefore, I would hold that the trial
court erred in dismissing plaintiff's complaint for failure to
state a claim upon which relief may be granted.
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