An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA 03-745


Filed: 6 July 2004


v .                         Rockingham County
                            No. 02 CVS 2194

    Appeal by plaintiff from order entered 7 April 2003 by Judge Catherine C. Eagles in Superior Court in Rockingham County. Heard in the Court of Appeals 3 March 2004.

    Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner, for plaintiff-appellant.

    Fred T. Hamlet and Pelino & Lentz, P.C., by Patrick J. Doran, for defendant-appellees.

    HUDSON, Judge.

    Plaintiff filed this action seeking compensatory and punitive damages for defendants' alleged violation of the North Carolina Retaliatory Employment Discrimination Act (“REDA”). Defendants moved to dismiss the complaint pursuant to N.C. R. Civ. P. 12(b)(6). The trial court heard arguments from counsel, and on 7 April 2003, granted defendants' motion, thereby dismissing plaintiff's complaint. Plaintiff appeals. As explained below, we reverse and remand for further proceedings.
    The allegations of plaintiff's complaint tend to show that plaintiff was hired by defendant in 1981 as a sanitation worker.Prior to his discharge, defendant had promoted him to sanitation supervisor. On 27 September 2001, plaintiff and a manager he supervised were involved in a plant inspection. During the inspection, the manager cut his finger while inspecting a piece of machinery. Plaintiff investigated the incident, and concluded that a maintenance department employee had turned the machine on while the manager was inspecting it. Plaintiff then completed a work- related accident report.
    As a result of the work-related injury, defendant issued plaintiff a performance correction notice for safety violations, including that plaintiff should have “locked out” the machine while the inspection was being conducted. Plaintiff alleges, however, that he was only instructed to “lock out” machines during repairs and maintenance, and not during inspections. Plaintiff refused to sign the performance correction notice, and on 3 October 2001, defendant terminated plaintiff for his refusal to do so.
    On 1 April 2002, plaintiff filed a REDA claim against defendant with the North Carolina Department of Labor (“NCDOL”), alleging he was fired in retaliation for his exercise of his rights protected under the North Carolina Workers' Compensation Act. On 5 August 2002, the NCDOL issued plaintiff a “right to sue” letter, and, on 29 October 2002, plaintiff filed his complaint.
    Before we address the substantive arguments of plaintiff's appeal, we consider plaintiff's motion to amend the record on appeal. In his motion, plaintiff contends that defendants attached several exhibits to their motion to dismiss, which the trial courtconsidered in its ruling. Plaintiff further contends that the trial court's reliance on these exhibits converted the 12(b)(6) motion into a Rule 56 motion for summary judgment. After considering the parties' arguments for and against amending the record on appeal, we deny plaintiff's motion and proceed to analyze plaintiff's appeal under the law applicable to Rule 12(b)(6).
    In ruling on a motion to dismiss brought under Rule 12(b)(6), the court must determine if, “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, whether properly labeled or not.” Harris v. NCNB, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987). Additionally, “a complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.” Id. at 671, 355 S.E.2d at 840 (emphasis in original)(citations omitted).
    “In order to state a claim under REDA, a plaintiff must show (1) that he exercised his rights as listed under N.C. Gen. Stat. § 95-241(a), (2) that he suffered an adverse employment action, and (3) that the alleged retaliatory action was taken because the employee exercised his rights under N.C. Gen. Stat. § 95-241(a).” Wiley v. UPS, Inc., ___ N.C. App. ___, ___, 594 S.E.2d 809, 811 (2004). An adverse action includes “the discharge, suspension, demotion, retaliatory relocation of an employee, or other adverse employment action taken against an employee in the terms, conditions, privileges, and benefits of employment.” N.C. Gen.Stat. § 95-240(2) (2003).
    G.S. . 95-241 provides that:
    (a) No person shall discriminate or take any retaliatory action against an employee because the employee in good faith does or threatens to do any of the following:

        (1) File a claim or complaint, initiate any inquiry, investigation, inspection, proceeding or other action, or testify or provide information to any person with respect to any of the following:

        a. Chapter 97 of the General Statutes.

    Here, plaintiff's complaint alleges, inter alia, the following:
    9. Filing a claim or complaint, initiating any inquiry, investigation, inspection, proceeding or other action, or testifying or providing information to any person with respect to Chapter 97 of the General Statutes is a protected activity under N.C. Gen. Stat. . 95-243.


    12. This action arises out of the retaliatory discharge of Billingsley by Defendant, by and through its agents for the exercise of his rights of protection under the Retaliatory Employment Discrimination Act [REDA], N.C. Gen. Stat. . 241(a)(1)(a), specifically the Workers' Compensation Act, Chapter 97 of the North Carolina General Statutes.

    13. Defendant's decision to terminate Billingsley's employment was, inter alia, in retaliation of his providing information with respect to a claim under the North Carolina Workers' Compensation Act.


    19. Billingsley completed a work related accident report detailing the work related accident and his findings concerning the cause of the work related accident.

    20. As the sanitation manager, Billingsley, if employed, could be called to testify concerning this workers' compensation injury, his investigation of the work related injury, and other factors relating to the work related injury.

    26. The decision to terminate Billingsley was, inter alia, in retaliation for his exercise of his rights protected under the North Carolina Workers' Compensation Act and N.C. Gen. Stat. . 95-241(a)(1).

    27. Defendant's discrimination against and termination of Billingsley from his employment was the result of the exercise of his rights afforded by the North Carolina Workers' Compensation Act and N.C. Gen. Stat. . 95- 241(a)(1).


    30. As a result of the discriminatory firing by Defendant, Billingsley has suffered damages in excess of $10,000.00, representing back pay, lost wages, and other benefits incident to his employment.

In these paragraphs and others, the plaintiff clearly alleges that defendant retaliated against him for exercising rights protected by statute -- namely initiating an inquiry or investigation, and providing information regarding the alleged compensable workplace injury. These allegations, if true, are specifically protected by G.S. . 95-241(a)(1)(a).
    Thus, we conclude that plaintiff's complaint suffices to set forth a claim for retaliation under REDA, and thus to withstand a Rule 12(b)(6) motion to dismiss. Therefore, we reverse the order of the trial court dismissing plaintiff's complaint and remand for further proceedings.
    Reversed and remanded.
    Judges MARTIN and GEER concur.
    Report per Rule 30(e).

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