English v. General Elec. Co., No. 87-31-CIV-7.

• Court: United States District Courts. 4th Circuit. Eastern District of North Carolina
• Writing for the Court: M. Travis Payne, Edelstein, Payne & Nelson, Raleigh, N.C., for plaintiff
• Citation: 765 F. Supp. 293
• Parties: Vera M. ENGLISH, Plaintiff, v. GENERAL ELECTRIC COMPANY, Defendant.
• Docket Number: No. 87-31-CIV-7.
• Decision Date: 07 May 1991

765 F. Supp. 293

Vera M. ENGLISH, Plaintiff,
v.
GENERAL ELECTRIC COMPANY, Defendant.

No. 87-31-CIV-7.

United States District Court, E.D. North Carolina, Wilmington Division.

May 7, 1991.

M. Travis Payne, Edelstein, Payne & Nelson, Raleigh, N.C., for plaintiff.

A. Bruce Clarke, Ogletree, Deakins, Nash, Smoak & Stewart, Raleigh, N.C., Thomas Dean Myrick, Charlotte, N.C., Charles Matthew Keen, Ogletree, Deakins, Nash, Smoak & Stewart, Raleigh, N.C., Dixie L. Atwater, Ogletree, Deakins, Nash, Smoak & Stewart, Washington, D.C., for defendant.

ORDER

DUPREE, District Judge.

Plaintiff, Vera M. English, filed this diversity action against defendant, General Electric Company (GE), in 1987 alleging common law causes of action for wrongful discharge in violation of public policy and intentional infliction of emotional distress. The action was initially dismissed by an order affirmed by a per curiam decision of the United States Court of Appeals for the Fourth Circuit, but was subsequently remanded to this court after a unanimous reversal by the United States Supreme Court. The matter is currently before the

765 F. Supp. 294

court on plaintiff's motion to amend the complaint to add factual allegations and claims for relief based on the theory of bad faith discharge. F.R.Civ.P. 15(a). The motion was denied by an order of Magistrate Judge Charles K. McCotter, Jr., filed on March 7, 1991 to which plaintiff has filed objections and an appeal. The court has conducted a de novo review and has determined for the reasons which follow that the motion to amend the complaint should be denied to the extent that it seeks to add claims for relief that are not recognized in North Carolina and granted to the extent that it seeks to add factual allegations which support claims currently contained in the complaint

The facts of the case have been set forth in three previously published opinions and need not be fully repeated here. See English v. General Electric Company, 683 F.Supp. 1006 (E.D.N.C.1988), aff'd, 871 F.2d 22 (4th Cir.1989), reversed and remanded, ___ U.S. ___, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990). In summary, plaintiff alleged that she was discharged and subjected to outrageous treatment as a result of her attempts to alert her supervisors at GE's nuclear-fuels production facility in Wilmington, North Carolina about deficiencies in the clean-up and detection of contaminated nuclear material. By order filed February 10, 1988, the court dismissed the entire complaint for lack of subject matter jurisdiction due to the perceived preemptive effect of federal laws regarding employees who have been discharged for reporting safety violations in nuclear facilities. See 42 U.S.C. § 5851. As an alternative basis for dismissal of the claims for wrongful discharge in violation of public policy, the court held that plaintiff had failed to state a claim for which relief could be granted since North Carolina law did not at that time recognize such a cause of action.

Plaintiff appealed the court's ruling that the intentional infliction of emotional distress claims were preempted by federal law, but chose not to appeal the court's dismissal of the wrongful discharge in violation of public policy claims. English, 871 F.2d at 23 n. 1; English, 110 S.Ct. at 2274 n. 4. While this action was on appeal to the United States Supreme Court, the North Carolina Supreme Court for the first time recognized a public policy exception to the employment at-will doctrine. Coman v. Thomas Manufacturing Company, 325 N.C. 172, 381 S.E.2d 445 (1989).

Prior to Coman, North Carolina courts generally followed the rule that a person without a definite term of employment was employed at will and could be discharged without reason. Still v. Lance, 279 N.C. 254, 182 S.E.2d 403 (1971). In Coman, a truck driver alleged that he was discharged for his refusal to falsify federally required time and mileage logs. The North Carolina Supreme Court reversed the dismissal of the truck driver's wrongful discharge suit and adopted the holding of Sides v. Duke University, 74 N.C.App. 331, 342, 328 S.E.2d 818, review denied, 314 N.C. 331, 333 S.E.2d 490 (1985), that "while there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy." Coman, 325 N.C. at 175, 381 S.E.2d 445. In Sides, the North Carolina Court of Appeals had reinstated a wrongful discharge claim based on allegations that the plaintiff had been discharged for refusing to testify untruthfully in a court action against her employer.

Since Coman, a limited number of published decisions have discussed the scope of North Carolina's exception to the employment at-will doctrine. In McLaughlin v. Barclays American Corporation, 95 N.C. App. 301, 382 S.E.2d 836, cert. denied, 325 N.C. 546, 385 S.E.2d 498 (1989), the North Carolina Court of Appeals refused to allow a wrongful discharge action by an employee claiming that he was terminated for attempting to defend himself in a fight provoked by another employee. The court reasoned that a discharge resulting from the employee's use of self-defense did not implicate public policy concerns as envisioned by Coman and, though perhaps illogical, did not demonstrate bad faith. Id. at 306-07, 382 S.E.2d 836. In Harrison v. Edison Brothers Apparel Stores, Inc., 924

765 F. Supp. 295

F.2d 530, 533 (4th Cir.1991), the Fourth Circuit noted that "the only ... successful wrongful discharge plaintiffs we find in reported North Carolina cases have had to choose between their jobs and violating the criminal law." The plaintiff in Harrison was permitted to proceed with her wrongful discharge action based on allegations that she was fired for refusing to accede to the sexual demands of the manager...