English v. General Elec. Co.

• Decision Date: 10 February 1988
• Docket Number: No. 87-31-CIV-7.,87-31-CIV-7.
• Citation: 683 F. Supp. 1006
• Parties: Vera M. ENGLISH, Plaintiff, v. GENERAL ELECTRIC COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of North Carolina

683 F. Supp. 1006

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

No. 87-31-CIV-7.

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

February 10, 1988.

M. Travis Payne, Edelstein and Payne, Raleigh, N.C., for plaintiff.

William W. Sturges, Weinstein & Sturges, Charlotte, N.C., for defendant.

ORDER

DUPREE, Senior District Judge.

Plaintiff, Vera M. English, filed this diversity action against defendant, General Electric Company (GE), alleging common law causes of action for wrongful discharge in violation of public policy and intentional infliction of emotional distress. As relief plaintiff seeks $1,328,645 in compensatory damages and punitive damages in the amount of five percent of the net worth of defendant GE (or approximately $2.3 billion). The action is before the court on defendant's motion pursuant to Rule 12 of the Federal Rules of Civil Procedure to dismiss the instant complaint on the grounds that the alleged causes of action are preempted by federal law such that the court lacks jurisdiction over the subject matter and the plaintiff has failed to state causes of action under North Carolina law upon which relief can be granted. F.R.Civ. P. 12(b)(1) and (6). For the reasons which follow, defendant's motion pursuant to Rule 12(b)(1) as to the entire complaint will be granted. Further, defendant's 12(b)(6) motion will be granted as an alternative basis for dismissal only as to plaintiff's claim for wrongful discharge.

When confronted by a motion to dismiss a complaint must be construed in the light most favorable to the plaintiff and its allegations taken as true. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404 (1969). "A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957) (footnote omitted). The factual allegations upon which defendant GE's motion to dismiss must be resolved, as taken from the complaint, are as follows:

I. FACTUAL ALLEGATIONS

From November 13, 1972 until March 15, 1984, plaintiff English was employed as a radiation laboratory technician in the Chemical Metallurgical Laboratory (Chemet Lab) of defendant GE's Nuclear Fuel Manufacturing Department (NFMD) in Wilmington, North Carolina. At the NFMD nuclear fuel is produced using radioactive materials, principally uranium. As a source of quality control the Chemet Lab performs metallurgical, environmental, chemical and spectrographic analyses on small uranium samples to assure that standards of the Nuclear Regulatory Commission (NRC) are met. Plaintiff's job consisted of assuring an accurate measure of uranium in GE's uranium powder fuel pellets.

In February 1984 plaintiff began taking action to correct what she perceived as serious violations of safety standards at GE's NFMD. On February 13, 1984, plaintiff reported to the NRC that many safety hazards and illegal practices were present in the Chemet Lab, and that corrective action had not been taken even though GE had been made aware by her of similar hazards and practices in the Lab. On February 24, 1984, plaintiff forwarded essentially the same complaints to Mr. E.A. Lees, the Quality Assurance Manager (later General Manager) of GE's NFMD.

During the period of March 5 — 9, 1984, plaintiff spent considerable work time cleaning up radiation contamination at and around her work station, apparently left there by workers on preceding shifts. On March 5 plaintiff asked a "Rad Safety" man (specially trained personnel who, using special instruments, detect uranium contamination) to check out her work area to see whether he would discover the pile of contaminated nuclear material she had collected and swept to the rear of her work table. The man declared plaintiff's area free of contamination. At the end of her shift plaintiff cleaned up the pile of contaminated matter which the Rad Safety man had not detected. At the conclusion of her work shift on March 10 plaintiff:

decided that the only way to convince management of the validity of her concerns about the dangerous conditions in the Chemet Lab and of other workers' failures to follow safety procedures, charges she had raised before without GE properly responding, was to identify some of the areas of radiation contamination with red tape (used to mark off radiation hot spots) and have her regular supervisor, Mr. William Lacewell, see the conditions when he and she were next on duty, which would be on the evening of March 12.

Complaint ¶ 16.

Upon beginning her shift on March 12, 1984, English showed her supervisor the marked-off areas of contamination, areas which were undisturbed by interim shift workers. Plaintiff also informed her supervisor of the Rad Safety man's failure to detect contamination on her work bench on March 5. Following plaintiff's discussion parts of the Chemet Lab were shut down whereby many of the safety problems identified by English were fixed and the contaminated areas were cleaned.¹ Id. ¶ 18.

In a letter dated March 15, 1984, GE charged plaintiff with several violations of GE and/or NRC requirements, including: (1) unauthorized removal of a personal nuclear survey instrument from the entrance to the laboratory for use elsewhere in the plant; (2) deliberate contamination of a table; (3) failure to clean up contamination, knowing it existed; (4) the continued distraction of other laboratory employees; and (5) disruption of normal laboratory activities. Plaintiff alleges that "GE management conspired to fraudulently charge that Mrs. English violated GE safety rules and criminal statutory prohibitions which they knew did not exist or the violation of which they did not occur." Id. ¶ 31. According to English, all charges save No. 3 were dropped "because they were deemed demonstrably false or not capable of substantiation." Id. ¶ 20. As punishment for charge No. 3, GE removed plaintiff from the Chemet Lab under guard "as if she were a criminal, exposing her to the contempt and ridicule of fellow employees," id. ¶ 24; barred her entry into the Chemet Lab or from employment in or entry to any controlled areas in the NFMD, id. ¶ 21; and indefinitely assigned her to menial "make work" in Building "J" and the Central Stores Warehouse, id. According to plaintiff, "internal management documents establish that the purpose of these measures was to punish Mrs. English for what management termed her `subversive' activity and to prevent Mrs. English from continuing to obtain evidence to prove that management was failing adequately to police compliance with NRC safety and quality regulations." Id. ¶ 22. In addition to the punishment imposed upon charge No. 3, English was watched constantly by a member of management from a desk overlooking hers in Building J, isolated from her fellow workers, "and not even permitted to eat lunch in the company lunch room with them." Id. ¶ 24.

On April 30, 1984, GE's management informed English that she would have to "bid" for a position in the NFMD, other than in the Chemet Lab or other controlled area, and if no position was available within ninety days she would be placed on a "`lack of available work' status." Eighty-nine days later, on July 29, 1984, plaintiff was sent home to change into safety shoes "although plant rules did not require that anyone in the area in which she was working wear safety shoes." Id. ¶ 26. The next day, July 30, 1984, having obtained no other position, GE fired English. Since her discharge plaintiff has been unable to find acceptable employment and has become impoverished. Id. ¶ 35.

Plaintiff alleges GE's actions were intended to teach her a lesson and make an example out of her because she raised safety concerns, "the resolution of which caused, was causing and would continue to cause delay in production at the GE plant, embarrass GE with its principal regulator, the NRC, and encourage other employees to observe, prove and report GE's sloppy and potentially dangerous safety procedures." Id. ¶ 29. According to English, GE's treatment of her was "clearly discriminatory" because no investigation was undertaken with respect to any workers on shifts between March 10 and 12 (when plaintiff had marked off contaminated areas) and because similar failures to clean up contamination by other employees had "never resulted in the kind and severity of disciplinary treatment meted out by GE to Mrs. English." Id. ¶ 27.

In Count 1 of the complaint plaintiff alleges her discharge by GE was wrongful and "in violation of the strong public policies embodied in the laws of the United States, which encourage and require safe operation of nuclear facilties and require workers to report potential violations of NRC regulations." Id. ¶¶ 41-42. In Count 2 plaintiff alleges her discharge constituted a "gross, wanton and reckless violation of public policy and disregard of her rights, and was done with actual malice entitling her to punitive damages against GE." Id. ¶¶ 43-44. Plaintiff also alleges that as a result of defendant's intentional, malicious, extreme and outrageous conduct, she now suffers a severely depressed and emotional condition which has required professional psychiatric treatment. Id. ¶¶ 36-38. Hence, plaintiff seeks compensatory damages in Count 3 and punitive damages in Count 4 for intentional infliction of emotional distress. Id. ¶¶ 45-51.

Defendant GE has moved to dismiss plaintiff's entire complaint pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure. Defendant argues that plaintiff's claims, are preempted by federal law in that they concern matters of nuclear safety and are specifically preempted by Section 210 of the Energy Reorganization Act, 42 U.S.C. § 5851, commonly referred to as "the whistle blower provision." Defendant further contends...