Salter v. E & J HEALTHCARE, INC.

• Citation: 155 NC App. 685,575 S.E.2d 46
• Decision Date: 21 January 2003
• Docket Number: No. COA02-88.,COA02-88.
• Court: Court of Appeal of North Carolina (US)
• Parties: Carolyn G. SALTER, Plaintiff, v. E & J HEALTHCARE, INC., d/b/a Greystone Manor, Defendants.

575 S.E.2d 46

155 NC App. 685

Carolyn G. SALTER, Plaintiff, v. E & J HEALTHCARE, INC., d/b/a Greystone Manor, Defendants.

No. COA02-88.

Court of Appeals of North Carolina.

January 21, 2003.

Distefano & Erca, by Alison A. Erca, Durham, for plaintiff-appellant.

Hopper & Hicks, LLP, by William L. Hopper, Oxford, for defendant-appellee.

McCULLOUGH, Judge.

Plaintiff Carolyn G. Salter appeals from an order granting summary judgment to defendant E & J Healthcare, Inc., d/b/a/ Greystone Manor entered 2 November 2001. Plaintiff filed suit on 12 July 2000 setting forth three claims: (1) wrongful discharge in violation of public policy based on N.C. Gen. Stat. § 97-1; (2) wrongful discharge in violation of public policy based on N.C. Gen.Stat. § 131D-19; and (3) retaliatory discharge in violation of the Retaliatory Employment Discrimination Act (REDA). The facts surrounding the parties and the complaint follow.

Defendant operates four rest home facilities in eastern North Carolina. One of these facilities is Greystone Manor, located in Red Springs, Robeson County.

Plaintiff holds a B.S. Degree in Psychology with a minor in gerontology. Plaintiff had been employed by defendant at the Greystone Manor as the activities coordinator since late 1996 or early 1997. She was also a member of the management team and did public relations for the facility.

While at work on 2 June 1999, plaintiff was exiting some offices when she slipped and fell on a wet floor. As a result of the fall, plaintiff broke her foot. While at the hospital following the accident, plaintiff attempted to give her insurance information to the hospital. She was informed by the hospital staff that she would be covered by workers' compensation, and that the hospital had no use for her own insurance information. Thus, it was at this time that plaintiff apparently learned that she was entitled to workers' compensation from defendant.

The facts surrounding plaintiff's workers' compensation claim differ between the parties. Plaintiff contends that on 3 June 1999, she returned to work and began filling out workers' compensation forms. In her deposition, plaintiff testified that her supervisor at Greystone Manor, Frances Ivey, believed that the slip and fall was plaintiff's fault. Plaintiff further testified that Ms. Ivey informed her "that it was very hard to get workman's comp, that it was hard to prove and that it was just a hassle; and that it was just going to be a very difficult situation." In addition, plaintiff alleged in her complaint that Ms. Ivey informed a coworker not to report to the company president that warning signs were not visible at the place where plaintiff fell. Plaintiff accuses Ms. Ivey of having a general aversion to her after the workers' compensation incident.

Frances Ivey denied making any such statements or having any such aversion toward plaintiff. Ms. Ivey testified in her deposition to the fact that she was in charge of filing workers' compensation claims at Greystone Manor, and that she did in fact fill out the paperwork for plaintiff. Throughout it has never been contested that plaintiff has failed to get all the workers' compensation to which she was entitled.

After plaintiff's injury, she continued to work at Greystone Manor, although she only performed light duty. Plaintiff has alleged that Ms. Ivey continued to be skeptical of the extent of her injury, while Ms. Ivey denied such. After two and one-half months of light duty, on 16 August 1999, plaintiff reinjured her foot while away from work when she tripped at her home. Her physician prescribed one week of inactivity, spanning from 16 August to 23 August 1999. Plaintiff had a scheduled appointment with her physician on 24 August 1999, and planned to return to work after this appointment.

Prior to August 24th, however, plaintiff was summoned to work to pick up her check and discuss some things with Frances Ivey. On 23 August 1999, Ms. Ivey gave plaintiff her check along with a letter that had been faxed to her from defendant's head office. The letter stated:

We acknowledge that you have been out of work for a period of time due to a foot injury. Our company will consider your leave of absence appropriate regarding the nature of the injury.

Any leave of absence granted shall be without pay.

You will be given first consideration for the position which was left, but cannot guarantee a job when the leave of absence is over. If such is available, you will be reinstated with no loss of seniority or pay status. If such a position is not available, re-instatement at a lessor position with a corresponding decrease in pay may be necessary. Eligibility for re-instatement is solely dependent upon availability of appropriate job openings, and the employer has no obligation beyond this.

....

This release shall be binding upon and inure to the benefit of the parties, their successors, assigns, personal representatives, and heirs, and without limiting the generality of the foregoing officers, directors, employees and agents of the Company.

Refusal to follow this procedure shall be considered insubordination and immediate dismissal.

Plaintiff claimed that Ms. Ivey demanded that she sign the letter, and that refusal to sign it immediately would result in termination. Ms. Ivey, after the fact, claims that the letter was intended for plaintiff to sign and take an unpaid leave of absence until she was able to work full-time. However, plaintiff submits that the letter is clear that she was to take a leave of absence with no assurances of a job when she returned if she signed, or she was to be immediately terminated if she refused to sign. Plaintiff refused to sign the letter. Instead, plaintiff asked to be allowed to remove her belongings from the premises. She was allowed to do so, as long as she told no one what had transpired. Ms. Ivey testified that plaintiff informed her that she had talked to a lawyer about a potential suit and had decided against it, but now had changed her mind after receiving the letter.

In addition to her workers' compensation dispute with defendant's management, plaintiff also alleged in her complaint that throughout her employment with defendant, she was an advocate for the residents at the facility. According to plaintiff, this caused a great deal of resentment between her and Ms. Ivey, independent from the workers' compensation incident. Plaintiff alleged in her complaint that "Ms. Ivey, by her words and conduct, implied to plaintiff that plaintiff's advocacy of residents' rights was a threat to plaintiff's continued employment with defendant." Indeed, plaintiff testified that Ms. Ivey informed her that the nursing home business "was all about money and not residents, and if [plaintiff] cared more for the residents, [she] wouldn't have a future in this business."

It is on all these facts that plaintiff filed her complaint. Defendant filed its answer on 14 September 2000, and its motion for summary judgment on 26 June 2001, on the ground that there was no genuine issue as to any material fact. Judge Jack Thompson heard the motion and granted defendant summary judgment on 2 November 2001. Plaintiff appeals on the ground that there are genuine issues of material fact.

Summary judgment is proper where there is no genuine issue as to any material fact. An issue is genuine where it is supported by substantial evidence. A genuine issue of material fact is of such a nature as to affect the outcome of the action. The moving party bears the burden of establishing the lack of a triable issue of fact. The motion must be denied where the non-moving party shows an actual dispute as to one or more material issues. As a general principle, summary judgment is a drastic remedy which must be used cautiously so that no party is deprived of trial on a disputed factual issue.

Johnson v. Trustees of Durham Tech. Cmty. Coll., 139 N.C.App. 676, 680-81, 535 S.E.2d 357, 361 (citations omitted), appeal dismissed, disc. review denied, 353 N.C. 265, 546 S.E.2d 102 (2000).

I.

Prior to addressing plaintiff's causes of action, there is an initial point of contention between the parties as to whether plaintiff voluntarily resigned or was in fact terminated as a result of the events on 23 August 1999. Plaintiff claims that she was terminated because she did not sign the letter, while defendant maintains that plaintiff voluntarily ceased her employment by failing to comply with defendant's policies.

It appears to this Court that the letter given to plaintiff on 23 August 1999 left her with two options: (1) sign the letter, and be put on leave of absence and get better, then hope she can get her job back since it was clearly not promised that it would be held open; or (2) not sign the letter and be fired. While defendant appears to claim that it was prepared to immediately take plaintiff back as a full-time employee as soon as she was ready to return to work, nothing in that letter sustains this assertion. By the letter's terms and Ms. Ivey's explanation of the terms, failure to sign meant immediate dismissal. Plaintiff failed to sign. While the decision not to sign was voluntary on her part, defendant was the party who dictated the result here by the language in the letter. Coming into court and now contending that by voluntarily failing to sign the letter plaintiff has somehow foregone any potential rights is disingenuous.

Plaintiff was terminated from her employment with defendant when she did not sign the letter, as dictated by its terms. Thus, we address the balance of plaintiff's appeal.

II.

Plaintiff contends that the trial court erred in granting summary judgment to defendant because genuine issues of material fact existed as to whether defendant took retaliatory action against her because she filed a workers' compensation claim, in violation of REDA, N.C. Gen.Stat. § 95-240, et. seq. (2001).

The North Carolina Retaliatory Employment Discrimination Act ("REDA"),...