924 F.2d 530 (4th Cir. 1991), 89-2227, Harrison v. Edison Bros. Apparel Stores, Inc.

Docket Nº:89-2227.
Citation:924 F.2d 530
Party Name:, 21 Fed.R.Serv.3d 1033, 8 Indiv.Empl.Rts.Cas. 1585 LaDonna HARRISON, Plaintiff-Appellant, v. EDISON BROTHERS APPAREL STORES, INCORPORATED, Defendant-Appellee, and Melvin Wall, Jr., Defendant.
Case Date:January 25, 1991
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 530

924 F.2d 530 (4th Cir. 1991)

, 21 Fed.R.Serv.3d 1033,

8 Indiv.Empl.Rts.Cas. 1585

LaDonna HARRISON, Plaintiff-Appellant,

v.

EDISON BROTHERS APPAREL STORES, INCORPORATED, Defendant-Appellee,

and

Melvin Wall, Jr., Defendant.

No. 89-2227.

United States Court of Appeals, Fourth Circuit

January 25, 1991

Argued Oct. 3, 1990.

Rehearing and Rehearing In Banc

Denied Feb. 21, 1991.

Harold Lillard Kennedy, III, argued, Kennedy, Kennedy, Kennedy and Kennedy, Winston-Salem, N. C., for plaintiff-appellant.

Robert Stancil Phifer, argued (James M. Powell, Gregory P. McGuire, on brief), Haynsworth, Baldwin, Johnson & Greaves, P.A., Charlotte, N. C., for defendant-appellee.

Page 531

Before RUSSELL and HALL, Circuit Judges, and WILSON, District Judge for the Western District of Virginia, sitting by designation.

K.K. HALL, Circuit Judge:

In her action for wrongful discharge and related claims, LaDonna Harrison appeals an order of the district court granting in part defendant Edison Brothers' motion for summary judgment. Because we believe that the facts alleged by Harrison state a cause of action for wrongful discharge under North Carolina law, we reverse the summary judgment as to that claim, and remand for further proceedings.

I.

Appellant Harrison was hired by Edison Brothers on November 10, 1986, to work at Edison's "Jeans West" store in Winston-Salem, North Carolina. The store was managed by Melvin Wall, Jr.

Harrison alleges that, beginning November 22, 1986, Wall repeatedly made sexually suggestive remarks to her, touched her without her consent, and requested sex. She first reported this conduct to Edison's regional manager on or about December 11, but Wall's misconduct continued.

On December 18, 1986, Harrison entered the Jeans West store to find her name crossed off of the work schedule for the remainder of that week and all of the next. Harrison asserts that she tried to call the regional manager collect, but he stated that he would not accept the charges because he knew no one named LaDonna Harrison. Harrison then placed her keys in the cash register and left the store. 1

On November 20, 1987, Harrison filed this suit in state court against Melvin Wall and appellee Edison Brothers. She asserted claims for battery, intentional infliction of emotional distress, negligent retention of employee, and wrongful discharge. Edison Brothers removed the case to district court through diversity of citizenship.

Wall counterclaimed for intentional infliction of emotional distress. On May 30, 1989, Harrison and Wall dismissed their claims against one another with prejudice. Edison Brothers was not a party to the stipulation for dismissal, and indeed did not even see it until it had been entered by the district court. The stipulation purported to preserve Harrison's claims against Edison.

Edison moved for summary judgment. On November 7, 1989, the district court granted the motion in part. Harrison v. Edison Brothers Apparel Stores, 724 F.Supp. 1185 (M.D.N.C.1989). The court held that Harrison had not stated a claim for wrongful discharge under North Carolina law. Further, the court ruled that the dismissal with prejudice of Wall acted as an adjudication that he was not liable for emotional distress or battery; therefore, Edison, whose potential liability on those two claims was solely derivative of Wall's, could not be liable either. The court denied Edison's motion, however, on the negligent retention claim, and that claim is still pending below.

Harrison noticed this appeal on December 6, 1989. Almost two months later, on January 30, 1990, the district court entered an order certifying, under Fed.R.Civ.P. 54(b), that there was no just cause for delaying the appeal.

II.

A threshold issue, not mentioned in the briefs of the parties, is whether this court has jurisdiction over an appeal of a judgment on less than all claims where the district court has not certified appealability before the notice of appeal. 2

Until recently there was a sharp split among the circuits on this issue. For some years, the Sixth, Tenth, and Eleventh Circuits

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ruled that a precertification notice of appeal was insufficient to confer jurisdiction. Oak Construction Co. v. Huron Cement Co., 475 F.2d 1220 (6th Cir.1973); McLaughlin v. City of LaGrange, 662 F.2d 1385 (11th Cir.1981) (but second post-certification notice of appeal satisfied jurisdictional requirements), cert. denied, 456 U.S. 979, 102 S.Ct. 2249, 72 L.Ed.2d 856 (1982); A.O. Smith Corp. v. Sims Consolidated, Ltd., 647 F.2d 118 (10th Cir.1981).

A more lenient view has been taken by the D.C., Third, Fifth, Seventh, Eighth, and Ninth Circuits. These courts hold that, absent prejudice to the appellee, the district court's...

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