Harrison v. Edison Bros. Apparel Stores, Inc.

Citation924 F.2d 530
Decision Date21 February 1991
Docket NumberNo. 89-2227,89-2227
Parties61 Fair Empl.Prac.Cas. 1501, 56 Empl. Prac. Dec. P 40,632, 123 Lab.Cas. P 57,058, 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.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

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.

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 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 Rule 54(b) certification may follow the notice of appeal. Tidler v. Eli Lilly & Co., 824 F.2d 84 (D.C.Cir.1987); Dawson v. Chrysler Corp., 630 F.2d 950, 955 n. 4 (3d Cir.1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981); Crowley Maritime Corp. v. Panama Canal Comm'n, 849 F.2d 951 (5th Cir.1988); Lac Courte Oreilles Band v. Wisconsin, 760 F.2d 177 (7th Cir.1985); Martinez v. Arrow Truck Sales, 865 F.2d 160 (8th Cir.1988); Aguirre v. S.S. Sohio Intrepid, 801 F.2d 1185 (9th Cir.1986). Recently, the en banc Tenth Circuit overruled A.O. Smith and its progeny to join the majority. Lewis v. B.F. Goodrich Co., 850 F.2d 641 (10th Cir.1988) (en banc), and the Sixth Circuit eroded its Oak Construction Co. rule to make an exception for a certification entered nunc pro tunc five days after the notice of appeal was filed. COMPACT v. Metropolitan Gov't of Nashville and Davidson Co., 786 F.2d 227, 228 n. 1 (6th Cir.1986). Finally, the Supreme Court has permitted late certification in an analogous context--interlocutory appeals under 28 U.S.C. Sec. 1292(b). Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985).

From its failure to raise the issue, we conclude that Edison was not prejudiced by the tardy certification. We adopt the majority view and find that we have jurisdiction over this appeal.

III.

This court must determine whether North Carolina would recognize a cause of action for wrongful discharge where an employee is fired for refusing to accede to the sexual demands of the employer.

The North Carolina Supreme Court has only recently recognized an exception to its general terminable-at-will rule to prohibit discharges made in contravention of North Carolina public policy. Coman v. Thomas Mfg. Co., 325 N.C. 172, 381 S.E.2d 445 (1989). In Coman, a truck driver alleged that he was discharged because he refused to falsify time and mileage logs required by United States Department of Transportation regulations and corresponding state statutes. The courts below had dismissed the driver's wrongful discharge suit, but the North Carolina Supreme Court reversed:

The state public policy implications in the case at bar are compelling. Our legislature has enacted numerous statutes regulating almost every aspect of transportation and travel on the highways in an effort to promote safety. The actions of defendant, as alleged, impair and violate this public policy. Plaintiff allegedly was faced with the dilemma of violating that public policy and risking imprisonment, N.C.G.S. Sec. 20-397, or complying with the public policy and being fired from his employment. Where the public policy providing for the safety of the traveling public is involved, we find it is in the best interest of the state on behalf of its citizens to encourage employees to refrain from violating that public policy at the demand of their employers. Providing employees with a remedy should they be discharged for refusing to violate this public policy supplies that encouragement.

381 S.E.2d at 447-48.

Though Coman was the state Supreme Court's first endorsement of a public policy exception, the Court of Appeals had previously adopted a similar rule. In 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), the court held that a nurse who asserted that she was discharged for refusing to commit perjury in a lawsuit against her employer stated a claim for wrongful discharge. In another case, an employee contended that she was discharged for appearing and testifying truthfully in response to a subpoena; the court of appeals found that the employee stated a cause of action. Williams v. Hillhaven Corp., 91 N.C.App. 35, 370 S.E.2d 423 (1988).

In short, the only three successful wrongful discharge plaintiffs we find in reported North Carolina cases have had to choose between their jobs and violating the criminal law. On the other hand, one of the many unsuccessful plaintiffs alleged facts somewhat similar to appellant's assertions in this case. In Hogan v. Forsyth Country Club, 79 N.C.App. 483, 340 S.E.2d 116, disc. rev. denied, 317 N.C. 334, 346 S.E.2d 140 (1986), the plaintiff alleged that she was discharged because she declined the sexual advances of another, more favored, employee. The court of appeals did not extend the Sides public policy exception to the plaintiff. Hogan is an imperfect precedent, however, because it involved employee-on-employee, rather than management-on-employee, harassment, and because it antedates Coman.

Coman arguably goes much further than its facts:

This court has never held that an employee at will could be discharged in bad faith. To the contrary, in Haskins v. Royster, 70 N.C. 601 (1874), this Court recognized the principle that a master could not discharge his servant in bad faith. Thereafter, this court stated the issue to be whether an agreement to give the plaintiff a regular permanent job was anything more than an indefinite general hiring terminable in good faith at the will of either party.

Numerous courts have recognized wrongful discharge theories characterized either as...

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