Clark v. United Emergency Services, Inc., No. COA07-592 (N.C. App. 4/15/2008)

Decision Date15 April 2008
Docket NumberNo. COA07-592,COA07-592
CourtNorth Carolina Court of Appeals
PartiesKERI A. CLARK, Plaintiff v. UNITED EMERGENCY SERVICES, INC., Defendant.

Hedrick Murray Kennett Mauch & Rogers, PLLC, by Josiah S. Murray, III and John C. Rogers, III, for plaintiff-appellant.

Littler Mendelson, by Stephen D. Dellinger, for defendant-appellee.


Keri A. Clark ("plaintiff") appeals an order granting United Emergency Services, Inc.'s ("defendant") motion to dismiss her complaint and her amended complaint. Plaintiff alleged a wrongful termination in violation of public policy claim. We affirm.

Plaintiff began employment with defendant on 1 April 2001. Defendant assists hospitals in staffing emergency room departments. After one year, plaintiff was promoted to a position as a recruiter. Recruiters locate, identify and recruit qualified physicians to staff emergency room departments. Plaintiff was allegedly terminated on 28 February 2006. She filed a complaint on 28 July 2006 asserting discrimination and constructive termination in violation of public policy based on her refusal to speak to defendant's lawyer regarding pending litigation with a former employee, and based on plaintiff's exercising personal leave to receive medical treatment for a blood condition.

On 27 September 2006, defendant filed a motion to dismiss plaintiff's complaint on the grounds that the complaint failed to state a claim upon which relief could be granted because constructive discharge in violation of public policy is not recognized as a viable tort claim in North Carolina. On 29 November 2006, plaintiff amended her complaint to include the claim of "wrongful termination or constructive wrongful termination . . . or . . . involuntary discharge . . . ." The factual allegations remained the same.

On 4 January 2007, defendant filed a motion to dismiss plaintiff's amended complaint for failure to state a claim upon which relief could be granted. On 7 March 2007, the trial court granted defendant's motions to dismiss the complaint and the amended complaint. From this order, plaintiff appeals.

As a preliminary matter, we note that plaintiff's assignment of error does not comply with N.C. Rules of Appellate Procedure, Rule 10(c)(1), which requires each assignment of error to "state plainly, concisely and without argumentation the legal basis upon which error is assigned." N.C.R. App. P. 10(c)(1) (2007). Plaintiff's sole assignment of error states no legal basis for the error. Plaintiff assigned as error the "trial court's granting of Defendant's Motion [t]o Dismiss Plaintiff's Complaint and Defendant's Motion [t]o Dismiss Plaintiff's Amended Complaint pursuant to the terms and provisions of the Order so granting such relief. . . ." Plaintiff failed "to comply with one or more of the non jurisdictional requisites prescribed by the appellate rules." Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., ___ N.C. ___, ___, ___ S.E.2d ___, ___ slip op. at 11 (Mar. 7, 2008) (No. 303A07). However, plaintiff's failure to state a legal basis for her assignment of error is her only violation of the appellate rules. This violation does not impair our ability to review the alleged error and our review of the plaintiff's assignment of error will not frustrate the adversarial process, as appellee had notice of the basis upon which the court might rule. Id., slip op. at 14 (N.C. Mar. 7, 2008). Plaintiff's violation of the appellate rules is not a "substantial violation" under N.C.R. App. P. 25(b). We therefore will consider plaintiff's assignment of error and will not sanction plaintiff for this violation. Id., slip op. at 15 (N.C. Mar. 7, 2008).

I. Motion to Dismiss

Plaintiff argues the trial court erred in granting defendant's 12(b)(6) motions to dismiss. We disagree.

The standard of review on a motion to dismiss for failure to state a claim is whether as a matter of law, the allegations of the complaint, treated as true, state a claim upon which relief may be granted under some legal theory, whether properly labeled or not. N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2005); Holloman v. Harrelson, 149 N.C. App. 861, 864, 561 S.E.2d 351, 353 (2002); Little v. Atkinson, 136 N.C. App. 430, 431, 524 S.E.2d 378, 379 (2000). "A complaint should not be dismissed under Rule 12(b)(6) unless it affirmatively appears that the plaintiff is entitled to no relief under any state of facts which could be presented in support of the claim." Ladd v. Estate of Kellenberger, 314 N.C. 477, 481, 334 S.E.2d 751, 755 (1985) (quoting Presnell v. Pell, 298 N.C. 715, 719, 260 S.E.2d 611, 613 (1979)). Dismissal is generally precluded except where "the face of the complaint discloses some insurmountable bar to recovery." Id. (quoting Sutton v. Duke, 277 N.C. 94, 102, 176 S.E.2d 161, 166 (1970)). Mislabeling a claim will not "prove fatal . . . if critical facts are sufficiently pled in the body of the complaint that will give the adverse party notice of the assertions against him." Buchanan v. Hunter Douglas, 87 N.C. App. 84, 86, 359 S.E.2d 271, 272 (1987).

II. Constructive Discharge Doctrine

Plaintiff alleged wrongful discharge in violation of public policy based on constructive discharge due to her refusal to speak to defendant's lawyer, and constructive discharge due to exercising previously scheduled leave in violation of public policy stated in N.C. Gen. Stat. § 168A-1.

The general rule in North Carolina is that "absent an employment contract for a definite period of time, both employer and employee are generally free to terminate their association at any time and without reason." Gravitte v. Mitsubishi Semiconductor America, 109 N.C. App. 466, 472, 428 S.E.2d 254, 258 (1993) (citation omitted). This relationship is known as employment at-will. Id. Since plaintiff did not have an employment contract, she is considered an at-will employee.

An exception to the at-will employment doctrine is "where an employee is discharged for an unlawful reason or purpose that contravenes public policy." Id. (quoting Coman v. Thomas Manufacturing Co., Inc., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989)); see also Kurtzman v. Applied Analytical, 347 N.C. 329, 331-32, 493 S.E.2d 420, 422 (1997). To survive a motion to dismiss under this exception, the employee "must allege facts which indicate that [plaintiff] was in fact discharged." Gravitte, 109 N.C. App. at 472, 428 S.E.2d at 258.

Defendant argues plaintiff's allegations do not establish that she was discharged, and therefore, she cannot sustain a claim for wrongful discharge in violation of public policy.

According to plaintiff's complaint, in June of 2005, plaintiff attended a luncheon conference where the director of recruiting ("DOR") expressed dissatisfaction with the senior vice president of operations ("Senior Vice President") and asked the recruiters to report any unfair conduct of the Senior Vice President. Plaintiff told the DOR she did not have any negative or inappropriate conduct to report. The Senior Vice President was terminated a few days later. Plaintiff was asked to meet and confer with defendant's attorney about the termination of the Senior Vice President. Plaintiff met with defendant's attorney but "she refused to make any accusation[s] of misconduct against the Senior Vice President of Operations . . . and refused to answer any question[s] put to her by [defendant's] attorney which pressed for accusatory information . . . ." Plaintiff "felt threatened" after the meeting and reported it to the director of human resources. The Senior Vice President later filed a complaint against the defendant. Plaintiff told defendant she would not participate in any effort to construct a case against the Senior Vice President or provide a defense in the civil case because she "was of the opinion that such would require her to give false testimony against" the Senior Vice President.

On 23 February 2006, prior to taking previously scheduled leave for treatment of a medical condition, plaintiff's superiors told her she was required to work an on-call shift, and if she was unable to do so, she should "find a new career." Plaintiff took her leave. Upon her return, she met with her supervisor and was asked to "write and execute an official statement of resignation." She refused to do so and understood she was terminated when she was told to accept on-call duties or "find a new career." Plaintiff alleges these actions "constituted a wrongful termination or a constructive wrongful termination or an involuntary discharge of Plaintiff's employment with Defendant."

Plaintiff also alleges that "as a consequence of plaintiff's . . . unwillingness . . . to give what she deemed to be false testimony[,]" defendant's DOR omitted plaintiff from group recruiter meetings, the DOR stopped speaking to plaintiff for "a period of months," spoke negatively about plaintiff to the other recruiters and employees, did not communicate company information to plaintiff, and excluded plaintiff from social events. Plaintiff further alleges that "defendant's actions . . . were . . . taken for the purpose of coercing Plaintiff to resign her position of employment with Defendant in retaliation for Plaintiff's refusal to participate . . . in civil litigation then pending . . . between Defendant's Senior Vice President of Operations and Defendant." Plaintiff also alleges as a result of restructuring, defendant changed her direct supervisor from the DOR to the DOC on 20 February 2006 as part of an action to "actively mistreat Plaintiff."

These allegations amount to a claim of constructive discharge. Constructive discharge occurs when an employer deliberately makes working conditions intolerable, forcing the...

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