An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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
NORTH CAROLINA COURT OF APPEALS
Filed: 16 August 2005
No. 02 CVS 01380
FRED HATLEY, CLERK OF SUPERIOR
COURT OF LINCOLN COUNTY, N.C.,
and THE ADMINISTRATIVE OFFICE OF
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.
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.
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 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
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
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 thepleasure 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
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
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).
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