Iturbe v. Wandel & Goltermann Technologies

• Decision Date: 23 May 1991
• Docket Number: Civ. A. No. 1:90CV00242.
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Blanca L. ITURBE and Angel Iturbe, Plaintiffs, v. WANDEL & GOLTERMANN, TECHNOLOGIES, INC., Defendant.

774 F. Supp. 959

Blanca L. ITURBE and Angel Iturbe, Plaintiffs, v. WANDEL & GOLTERMANN, TECHNOLOGIES, INC., Defendant.

Civ. A. No. 1:90CV00242.

United States District Court, M.D. North Carolina, Durham Division.

May 23, 1991.

MEMORANDUM OPINION

GORDON, Senior District Judge.

Plaintiff Blanca L. Iturbe (Iturbe), a woman of Chilean birth, was fired from her job at defendant Wandel & Goltermann's plant in Research Triangle Park, North Carolina. She sued, charging violations of Title VII of the Civil Rights Act of 1964, and attached pendent state claims of breach of contract and wrongful discharge, and a separate claim for attorneys' fees. Before the court is a motion by Wandel & Goltermann to dismiss the state law claims. For the reasons stated, the court will grant Wandel & Goltermann's motion to dismiss the breach of contract claim and the request for attorneys' fees. The wrongful discharge claim is made pursuant to the North Carolina Supreme Court's recent decision in Coman v. Thomas Mfg. Co., 325 N.C. 172, 381 S.E.2d 445 (1989), and the court concludes that Iturbe has stated a claim under North Carolina law.

BACKGROUND

For purposes of this motion to dismiss, the court must accept as true the factual allegations in Iturbe's verified complaint and the inferences that can reasonably be drawn therefrom. 5A Wright & Miller, Fed. Pract. & Proc.: Civil 2d, § 1357, nn. 10, 24 and accompanying text (1990). Iturbe worked for Wandel & Goltermann in New Jersey, as group leader of final assembly. In 1984, Wandel & Goltermann announced it was going to open a new plant in Research Triangle Park, North Carolina, and offered Iturbe a job there if she would move down. She was told she would have a "continuing job with the company if she moved to North Carolina and that she would continue to grow with the company as the company grew." Amended Complaint, para. 11. She agreed to move herself and her family. At the North Carolina plant, she was one of three final assemblers, a valuable employee with a good job performance record. Iturbe's husband, Angel, was hired by the company as a machinist. (He had not worked for Wandel & Goltermann in New Jersey.)

All went well until February, 1989, when the plant manager called Angel Iturbe in to his office and told Angel he would be laid off. Angel Iturbe protested, whereupon the plant manager told him that either he or his wife would be fired. Four days later, Blanca L. Iturbe was fired. At the time, Wandel & Goltermann had a written procedure for layoffs in which job performance was the primary factor in determining which employees would be laid off and seniority was a determining factor in cases where job performance was considered to be equal. Amended Complaint, para. 18. When Iturbe was fired, a male of American birth in her department was not fired, although her job performance was as good as his and she had substantially more seniority than he. Amended Complaint, para. 20.

Adding insult to injury, Angel was shortly thereafter transferred to his wife's former department and told to do her job. Later, he was transferred back to his old job, and other people were hired to do Iturbe's work.

DISCUSSION

A. BREACH OF CONTRACT

Iturbe alleges that she had a promise from Wandel & Goltermann that her job would be "continuing", and that she would retain a job as long as her work was satisfactory and the company was in need of her skills. Amended Complaint, para. 11. Wandel & Goltermann allegedly breached this contract when it fired her.

Iturbe freely admits that North Carolina is a traditional "employment at will" state. If an employment contract contains no provision concerning the duration of the employment or the means by which it may be terminated, such a contract is terminable at the will of either party, irrespective of the quality of performance by the other party. Still v. Lance, 279 N.C. 254, 259, 182 S.E.2d 403, 406 (1971). This is true even if the contract expressly refers to the employment as a "regular, permanent job". Id.

However, a line of North Carolina cases has recognized an exception to this rule: an agreement of permanent employment can be enforced when the employee has provided additional consideration beyond the usual obligation of service.

One variant of this exception is when the employee is injured through the negligence of the company, and the employer and employee reach an agreement that the employee will drop all tort claims against the company in exchange for a promise of permanent employment. The North Carolina Supreme Court has several times found such promises binding. Dotson v. F.S. Royster Guano Co., 207 N.C. 635, 178 S.E. 100 (1935); Stevens v. Southern Railway Co., 187 N.C. 528, 122 S.E. 295 (1924); Fisher v. John L. Roper Lumber Co., 183 N.C. 485, 111 S.E. 857 (1922).

A more recent variation of the exception is when the employee gives up a job and moves to a new city to start work with a new employer. The development of this variation can be traced through the cases of Tuttle v. Kernersville Lumber Co., 263 N.C. 216, 219, 139 S.E.2d 249, 251 (1964) (dictum that additional consideration can make an agreement for a "permanent job" binding) and Burkhimer v. Gealy, 39 N.C.App. 450, 454, 250 S.E.2d 678, 682, disc. rev. denied, 297 N.C. 298, 254 S.E.2d 918 (1979) (dictum that additional consideration includes moving residences to take a new job). In Sides v. Duke University, 74 N.C.App. 331, 345, 328 S.E.2d 818, 828, disc. rev. denied, 314 N.C. 331, 333 S.E.2d 490 (1985), the court held that the additional consideration of leaving a job in Michigan to take a job in North Carolina removed the plaintiff's contract for "permanent" employment from the terminable at will rule.

The most recent discussion of this particular exception to the employment at will rule would appear to be Buffaloe v. United Carolina Bank, 89 N.C.App. 693, 366 S.E.2d 918 (1988), a case similar to the one before the court today. There, the plaintiff moved from Charlotte to Lumberton in order to receive a promotion with the same employer. The court held this was not sufficient additional consideration to remove the case from the employment-at-will doctrine. Id. at 696-97, 366 S.E.2d at 921.

The Court of Appeals in Buffaloe distinguished Sides v. Duke University, supra, by noting that in Sides, the plaintiff had left a job with a different employer in Michigan to take a new job in North Carolina, thus forgoing career opportunities. In Buffaloe, the plaintiff did not forgo any other employment opportunities, and he merely moved in order to receive a promotion; this was insufficient consideration to support the promise.

Buffaloe controls in the case today. Iturbe did not give up any other employment opportunities; she moved from New Jersey to North Carolina in order to retain the same job with the same company. Thus, any promise Wandel & Goltermann made to Iturbe was nudum pactum: the consideration she provided in return for it was insufficient to form a binding contract for permanent employment. Since no contract for permanent employment existed, Wandel & Goltermann had nothing to breach. The court finds that Iturbe's breach of contract claim fails to state a claim upon which relief can be granted, and will dismiss it.

B. THE WRONGFUL DISCHARGE CLAIM

Iturbe additionally claims she was wrongfully discharged by Wandel & Goltermann. Relying on Coman v. Thomas Mfg. Co., 325 N.C. 172, 381 S.E.2d 445 (1989), her complaint lists two separate grounds for the claim. First, her termination violated public policy against sex and ethnic discrimination; and second, she was discharged in bad faith because the basis for her discharge was her marital relationship with Angel Iturbe.

i. Wrongful Discharge in Violation of Public Policy

Iturbe directs the attention of the court to North Carolina General Statute § 143-422.2 (1990):

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.

Iturbe then cites the Coman case, which held there was a public policy exception to the employment at will doctrine, and urges that her discharge, which she alleges was due to her sex or national origin, violated North Carolina public policy. In Coman v. Thomas Mfg. Co., the North Carolina Supreme Court asked whether it "should adopt a public policy exception to the employment-at-will doctrine." 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989). The answer was "yes".

The Coman opinion borrowed language from Sides v. Duke University, 74 N.C.App. 331, 328 S.E.2d 818, disc. rev. denied, 314 N.C. 331, 333 S.E.2d 490 (1985):

We approve and adopt the following language from Sides:

While 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.

325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989) (citation omitted).

The Coman case and the public policy exception it announced have been discussed at length in two North Carolina cases. Both of them confirm that, in the case before the court today, plaintiff Iturbe has stated a cause of action. In McLaughlin v. Barclays American Corp., 95 N.C.App. 301, 382 S.E.2d 836, cert. denied, 325 N.C. 546, 385 S.E.2d 498 (1989), the plaintiff was fired for defending himself in an altercation with a subordinate. However, he could point to no particular public policy protecting his right to self-defense. Since no public policy was violated in his termination, the plaintiff failed to state a claim for wrongful discharge.

The state Court...