An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1131


Filed: 16 August 2005


v .                         Lincoln County
                            No. 02 CVS 01380
THE COURTS, an agency of the
State of North Carolina,

    Appeal by plaintiff from order entered 1 March 2004 by Judge Richard D. Boner in Lincoln County Superior Court. Heard in the Court of Appeals 21 April 2005.

    Vicki Brown Rowan, for plaintiff-appellant.

    Attorney General Roy Cooper, by Assistant Attorney General Valerie L. Bateman, for defendants-appellees.

    Thomas A. Harris, for amicus curiae State Employees Association of North Carolina, Inc.

    TYSON, Judge.

    Lisa Garland (“plaintiff”) appeals from an order granting Fred Hatley, the Clerk of Superior Court of Lincoln County, and the Administrative Office of the Courts (collectively, “defendants”) summary judgment. We affirm.

I. Background
    The Clerk of Superior Court of Burke County hired plaintiff as a deputy clerk in 1997. In October 2001, plaintiff interviewed with Pamela Huskey, Clerk of Superior Court for Lincoln County, andAssistant Clerk Teresa Peeler (“Peeler”) and was subsequently hired. Peeler became plaintiff's direct supervisor in the criminal department of the Clerk's Office.
    In February 2002, plaintiff was absent from work and used seventy hours of sick leave and over fourteen hours of vacation time due to an alleged illness. Plaintiff missed work again in April 2002 due to an alleged illness.
    On or about 18 April 2002, Peeler advised plaintiff that the Clerk's Office needed an employee in her position who could be at work from 8 a.m. to 5 p.m., Monday through Friday. On 30 April 2002, Peeler informed plaintiff she would no longer be employed as of 1 May 2002. On 1 May 2002, Peeler was sworn in as the Interim Clerk of Superior Court for Lincoln County to complete the unexpired term of Clerk Pamela Huskey, who retired. No other staff member was terminated by Peeler.
    Plaintiff filed a civil action against defendants alleging her termination from employment was retaliatory and violated 29 U.S.C.A. § 2615, The Family and Medical Leave Act (“FMLA”). The trial court granted defendants' motion for summary judgment. Plaintiff appeals.
II. Issues
    Plaintiff argues the trial court erred in granting defendants' motion for summary judgment because material issues of genuine fact exist regarding: (1) defendants' status as a covered employer under the FMLA; and (2) the Administrative Office of the Courts'status as an entity acting in the interest of an employer under the FMLA.
III. Standard of Review
    The standard of review on appeal from a grant of summary judgment in a civil case is well-established.
        Summary judgment is proper if the pleadings, depositions, 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. The party moving for summary judgment ultimately has the burden of establishing the lack of any triable issue of fact.

        A defendant may show entitlement to summary judgment by (1) proving that an essential element of the plaintiff's case is non-existent, or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that the plaintiff cannot surmount an affirmative defense. Summary judgment is not appropriate where matters of credibility and determining the weight of the evidence exist.

        Once the party seeking summary judgment makes the required showing, the burden shifts to the nonmoving party to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial. To hold otherwise . . . would be to allow plaintiffs to rest on their pleadings, effectively neutralizing the useful and efficient procedural tool of summary judgment.

Draughon v. Harnett Cty Bd. of Educ., 158 N.C. App. 208, 212, 580 S.E.2d 732, 735 (2003) (internal citations and quotations omitted), aff'd per curiam, 358 N.C. 131, 591 S.E.2d 521 (2004).
IV. Employee Status
    Plaintiff asserts the trial court erred in granting defendants' motion for summary judgment and argues a genuine issue of material fact exists regarding defendants' status as a covered employer under the FMLA. Plaintiff admits in her affidavit that during her previous employment for Burke County Clerk of Superior Court: “In 1999, my supervisor told me I needed to apply for FMLA before I had back surgery and she helped me fill out a form.” Plaintiff also admits she failed to request FMLA leave for absences from the Clerk's Office while sick and that she was not denied FMLA leave subsequent to her termination. Upon review of the record, it is unnecessary for us to reach this issue. The verified pleadings and plaintiff's affidavit show on their face the grant of summary judgment was proper.
A. At Will Employment
    “In North Carolina, 'in the absence of an employment contract for a definite period, both employer and employee are generally free to terminate their association at any time and without any reason.'” Venable v. Vernon, 162 N.C. App. 702, 705, 592 S.E.2d 256, 258 (2004) (quoting Salt v. Applied Analytical, Inc., 104 N.C. App. 652, 655, 412 S.E.2d 97, 99 (1991), cert. denied, 331 N.C. 119, 415 S.E.2d 200 (1992)).
    All employees are entitled to FMLA as a matter of public policy and statute. 29 U.S.C.A. § 2615 (1999). Pursuant to N.C. Gen. Stat. § 126-5(c1) (2003), plaintiff, as an “[o]fficer[] and [or] employee[] of the Judicial Department,” is exempt from protections of the State Personnel System. Plaintiff serves at the“pleasure” of the Clerk of Superior Court. N.C. Gen. Stat. § 7A- 102 (2003). Plaintiff was exempt from coverage as a State employee under the State Personnel Act and was an “at will” employee of the Clerk of Superior Court. N.C. Gen. Stat. § 126-5(c1); see also Hines v. Yates, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___ (5 July 2005) (COA04-775).
    In Coman v. Thomas Manufacturing Co., our Supreme Court recognized that an at will employee may not be terminated for a reason that offends public policy. 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989) (citing Sides v. Duke University, 74 N.C. App. 331, 342, 328 S.E.2d 818, 826, disc. rev. denied, 314 N.C. 331, 333 S.E.2d 490 (1985), overruled on other grounds by Kurtzman v. Applied Analytical Indus., 347 N.C. 329, 493 S.E.2d 420 (1997)), disc. rev. denied, 331 N.C. 284, 417 S.E.2d 249 (1992). In Coman, the plaintiff alleged he was terminated from his job as a long-distance truck driver after refusing to violate federal transportation regulations and brought suit for wrongful discharge. 325 N.C. at 173-74, 381 S.E.2d at 445-46. Our Supreme Court explicitly recognized a public policy exception to the well- entrenched employment at will doctrine and quoted with approval the following language from a prior decision of this Court:
        '[W]hile 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. A different interpretation would encourage and sanction lawlessness, which law by its very nature is designed to discourage and prevent.'
Id. at 175, 381 S.E.2d at 447 (quoting Sides, 74 N.C. App. at 342, 328 S.E.2d at 826). The Court stated, “[p]ublic 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.” Id. at 175 n.2, 381 S.E.2d at 447 n.2 (citing Petermann v. International Brotherhood of Teamsters, 174 Cal. App.2d 184, 344 P.2d 25 (Cal. App. 2. Dist, 1959)).
    In Caudill v. Dellinger, this Court held a district attorney's termination of the employment of his administrative assistant pursuant to N.C. Gen. Stat. § 7A-68 after she cooperated with the State Bureau of Investigation was in direct conflict with public policy. 129 N.C. App. 649, 656-57, 501 S.E.2d 99, 104, disc. rev. denied, 349 N.C. 353, 517 S.E.2d 888 (1998), aff'd in part per curiam, disc. rev. improvidently allowed in part, 350 N.C. 84, 511 S.E.2d 304 (1999). We held, “[i]t is the public policy of this state that citizens cooperate with law enforcement officials in the investigation of crimes.” Id. at 657, 501 S.E.2d at 104.
    In Hines, the plaintiff was a district attorney's investigatorial assistant and acted as a liaison between the district attorney's office and the sheriff's department. ___ N.C. App. at ___, ___ S.E.2d at ___. While employed, he filed as a candidate for sheriff and was terminated from employment after the election. Id. The plaintiff argued he was terminated for expressing political speech. Id. at ____, ____ S.E.2d at ___. We held that as an at will and exempt employee, the plaintiff could be terminated for any reason or no reason, so long as the reason forhis termination was not against public policy. Id. at ___, ___ S.E.2d at ___. The plaintiff's political speech was not limited by his employer. The plaintiff was free to exercise his political speech and criticize his employer, but failed to establish his termination was barred by public policy. Id. at ___, ___ S.E.2d at ___.
    Unlike the plaintiff in Caudill, but like the plaintiff in Hines, plaintiff here makes no showing that she was discharged for any reason that contravenes public policy. Caudill, 129 N.C. App. at 656-57, 501 S.E.2d at 104; Hines, ___ N.C. App. at ___, ___ S.E.2d at ___; see also Coman, 325 N.C. at 175, 381 S.E.2d at 447.
    As discussed, plaintiff is an at will employee. Plaintiff fails to prove she was terminated in violation of the FMLA. Plaintiff was discharged for being excessively absent from work, not because of unrequested FMLA leave. Interim Clerk Peeler was lawfully entitled to discharge an at will employee for “no reason or for an arbitrary or irrational reason” which does not contravene public policy. Hines, ___ N.C. App. at ___, ___ S.E.2d at ___; see Caudill, 129 N.C. App. at 656-57, 501 S.E.2d at 103-04. No genuine issue of any material fact exists regarding plaintiff's at will and exempt employment status. N.C. Gen. Stat. § 7A-102; N.C. Gen. Stat. § 126-5(c1).
    The trial court did not err in granting defendants' motion for summary judgment. In light of our holding, it is unnecessary to discuss plaintiff's remaining assignment of error. Caudill, 129 N.C. App. at 660, 501 S.E.2d at 106 (plaintiff was not entitled toreinstatement of her former position because the newly appointed district attorney was authorized to have an assistant serve at “his pleasure.”).
V. Conclusion
    Plaintiff failed to show a genuine issue of material fact exists or to forecast evidence of a public policy exception that shields her from termination of her at will employment. Plaintiff had previously applied for leave under FMLA, but did not request such leave here. Defendants were entitled to judgment as a matter of law. The trial court's order is affirmed.
    Chief Judge MARTIN and Judge LEVINSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***