Burgess v. Your House of Raleigh, Inc.

• Decision Date: 07 February 1990
• Docket Number: No. 235PA89,235PA89
• Citation: 388 S.E.2d 134,326 N.C. 205
• Parties: , 53 Empl. Prac. Dec. P 39,802, 2 A.D. Cases 672 Scott D. BURGESS v. YOUR HOUSE OF RALEIGH, INC.
• Court: North Carolina Supreme Court

Page 134

388 S.E.2d 134

326 N.C. 205, 53 Empl. Prac. Dec. P

39,802, 2 A.D. Cases 672

Scott D. BURGESS v. YOUR HOUSE OF RALEIGH, INC.

No. 235PA89.

Supreme Court of North Carolina.

Feb. 7, 1990.

Erdman, Boggs & Harkins by Harry H. Harkins, Jr., Durham, and Crisp, Davis, Schwentker, Page & Currin by Lynn Fontana, Raleigh, for plaintiff-appellant.

Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog by Richard T. Boyette, and Moore & Van Allen by William D. Dannelly, Raleigh, for defendant-appellee.

Tharrington, Smith & Hargrove by Burton Craige, Raleigh, for North Carolina Civil Liberties Union Legal Foundation.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by Julian D. Bobbitt, Jr. and Maureen Kelley O'Connor, Raleigh, for North Carolina Medical Society and American Medical Association, amici curiae.

MEYER, Justice.

We note from the outset that the issues raised in this case would, if the action had been commenced after the effective date of recent amendments to the North Carolina Communicable Disease Act, N.C.G.S. § 130A-148(h)-(j) (1989), be decided under that act. These provisions, which establish protections for those persons who test positive for the HIV virus, became effective 1 October 1989, subsequent to the filing of plaintiff's complaint and to entry of the order of the trial court granting defendant's motion for dismissal. Thus, for purposes of this appeal, plaintiff's rights must be determined under the law as it existed prior to the passage of the recent amendments to the Communicable Disease Act.

Plaintiff was employed by defendant restaurant as a short-order cook. In November 1987, plaintiff tested positive for the Human Immunodeficiency Virus (HIV), which is the agent currently recognized to be responsible for the Acquired Immune Deficiency Syndrome (AIDS). This condition is referred to as being "seropositive" for the virus. Upon learning that plaintiff had tested positive for this virus, defendant discharged plaintiff from employment. It is undisputed that plaintiff was fired solely because he tested positive for HIV. Plaintiff brought suit against his former employer, alleging that his discharge from employment for this reason constituted a discriminatory practice under the provisions of the North Carolina Handicapped Persons Protection Act, N.C.G.S. § 168A-1 to -12 (1987) (Handicapped Persons Act) because plaintiff's seropositive status enabled him to fit the act's definition of a qualified handicapped person. In his prayer for relief, plaintiff sought injunctive relief, reinstatement to his former position, back pay, and attorney's fees. Defendant answered, denying plaintiff's assertion that infection with HIV constitutes a "handicap," and further moved to dismiss plaintiff's complaint under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure for failure to state a claim upon which relief could be granted. The trial court granted defendant's motion, and plaintiff appealed to the Court of Appeals. On 8 June 1989, this Court ex mero motu allowed discretionary review prior to determination by the Court of Appeals.

AIDS may be described as the final stage of complications of infection by the Human Immunodeficiency Virus. Once introduced into the body, the HIV virus attacks and changes the structure of white blood cells which are crucial in order for a person's immune system to fight off disease. Leonard, AIDS and Employment Law Revisited, 14 Hofstra L.Rev. 11, 17-18 (1985). Soon after infection, antibodies to the virus develop. The infected white blood cells, unable to perform their normal immune system functions, reduce the body's capability to fight off opportunistic disease or render it incapable of doing so. Id. The debilitating effects of AIDS come, not from the virus itself, but from these opportunistic diseases that the immune system cannot fight.

The HIV virus is known to be transmitted through blood or semen during sexual intercourse, by contaminated intravenous needles, by the transfusion of tainted blood, and through prenatal exposure. As of April 1989, more than 94,000 cases of AIDS had been reported in the United States, and of that number, 820 had been reported in North Carolina. U.S. Centers for Disease Control, HIV/AIDS Surveillance Report (May 1989). The United States Centers for Disease Control estimates that the number of new cases in 1991 alone will exceed 52,000, and it projects a cumulative total of 270,000 cases by the year 1991. Padraig O'Malley, The AIDS Epidemic: Private Rights and the Public Interest (1989). AIDS has presented a myriad of legal issues, particularly in the employment context. Much debate has focused on the threshold question of whether AIDS or infection with the HIV virus should be defined as a handicap under either state or federal handicap antidiscrimination statutes. "One of the medical facts which makes AIDS a significant workplace issue is that a person may experience HIV infection in its various stages and be virtually asymptomatic, or have symptoms which ... are not actually disabling." Leonard, AIDS and Employment Law Revisited, 14 Hofstra L.Rev. 11, 19 (1985).

The central issue before this Court is whether a person who is infected with HIV, but who is otherwise asymptomatic, is entitled to protection under the provisions of the North Carolina Handicapped Persons Act, and specifically whether plaintiff has stated a claim upon which relief can be granted under the act. In ruling upon a Rule 12(b)(6) motion, the trial judge must treat the allegations of the complaint as admitted. Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979). Plaintiff's complaint therefore stated a proper cause of action under the act unless the court could hold, as a matter of law, that his seropositive status did not constitute a handicap as contemplated by the statute. A complaint may be dismissed pursuant to Rule 12(b)(6) if no law exists to support the claim made, if sufficient facts to make out a good claim are absent, or if facts are disclosed which will necessarily defeat the claim. Forbis v. Honeycutt, 301 N.C. 699, 273 S.E.2d 240 (1981).

In order to determine whether plaintiff has alleged a good claim, we must interpret the provisions of the Handicapped Persons Act. Where the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must construe the statute using its plain meaning. Utilities Comm. v. Edmisten, Atty. General, 291 N.C. 451, 232 S.E.2d 184 (1977). But where a statute is ambiguous, judicial construction must be used to ascertain the legislative will. Young v. Whitehall Co., 229 N.C. 360, 49 S.E.2d 797 (1948). The primary rule of construction of a statute is to ascertain the intent of the legislature and to carry out such intention to the fullest extent. Buck v. Guaranty Co., 265 N.C. 285, 144 S.E.2d 34 (1965). This intent "must be found from the language of the act, its legislative history and the circumstances surrounding its adoption which throw light upon the evil sought to be remedied." Milk Commission v. Food Stores, 270 N.C. 323, 332, 154 S.E.2d 548, 555 (1967). Upon careful and thorough analysis of the Handicapped Persons Act, we conclude that both the plain language of its provisions and the legislative history surrounding it indicate that the legislature did not intend to protect persons infected with HIV under this particular act.

For many decades, North Carolina has adhered to the employment-at-will doctrine, which provides that "[w]here a contract of employment does not fix a definite term, it is terminable at the will of either party, with or without cause." Smith v. Ford Motor Co., 289 N.C. 71, 80, 221 S.E.2d 282, 288 (1976) (citing Still v. Lance, 279 N.C. 254, 182 S.E.2d 403 (1971)). This doctrine has recently been narrowly eroded by statutory and public policy limitations on its scope. See, e.g., Coman v. Thomas Manufacturing Co., 325 N.C. 172, 381 S.E.2d 445 (1989); 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 North Carolina Handicapped Persons Act is a statutory enactment intended to protect handicapped employees from discriminatory employment practices. In the act's statement of purpose, the legislature provides that:

The purpose of this Chapter is to encourage and enable all handicapped people to participate fully to the maximum extent of their abilities in the social and economic life of the State, to engage in remunerative employment, to use available public accommodations and public services, and to otherwise pursue their rights and privileges as inhabitants of this State.

N.C.G.S. § 168A-2(a) (1987).

We recognize that the Handicapped Persons Act is a remedial statute. Burgess v. Brewing Co., 298 N.C. 520, 259 S.E.2d 248 (1979). Nevertheless, our interpretation of this act must be responsive to two countervailing considerations--the desire to give effect to the statutory objectives and the need to keep the scope of the act within the boundaries intended by the General Assembly.

In order to state a cause of action for violation of the right to employment protected by the act, plaintiff must initially establish that he is a "handicapped person" whose rights are protected by the statute. The Handicapped Persons Act defines a "handicapped person" as one who (1) has a physical or mental impairment which limits one or more "major life activities," (2) has a record of such an impairment, or (3) is regarded as having such an impairment. N.C.G.S. § 168A-3(4) (1987). In order to receive employment protection under the act, a person must additionally fit the definition of a "qualified handicapped person":

With regard to employment, a handicapped person who can satisfactorily perform the duties of the job in question, with or without reasonable accommodation, ... provided that the handicapping condition does not create an unreasonable risk to the safety or health of...