McDonnell v. Tradewind Airlines

• Decision Date: 06 January 2009
• Docket Number: No. COA07-634.,COA07-634.
• Citation: 670 S.E.2d 302
• Parties: John R. McDONNELL, Plaintiff, v. GUILFORD COUNTY TRADEWIND AIRLINES, INC., Defendant.
• Court: North Carolina Court of Appeals

670 S.E.2d 302

John R. McDONNELL, Plaintiff, v. GUILFORD COUNTY TRADEWIND AIRLINES, INC., Defendant.

No. COA07-634.

Court of Appeals of North Carolina.

January 6, 2009.

Appeal by plaintiff from directed verdict entered 20 October 2006 by Judge R. Stuart Albright in Guilford County Superior Court. Heard in the Court of Appeals 11 December 2007.

Smith, James, Rowlette, & Cohen, L.L.P., by Seth R. Cohen and J. David James, Greensboro, for plaintiff-appellant.

Tuggle, Duggins, & Meschan, P.A., by J. Reed Johnston, Jr. and Ryan S. Luft, Greensboro, for defendant-appellee.

BRYANT, Judge.

Tradewind Airlines, Inc. (defendant) terminated John R. McDonnell (plaintiff) from his position as a flight engineer after he refused an assignment to ferry a plane from Burlington, Vermont to Greensboro, North Carolina. Plaintiff alleges that his flight schedule preceding the termination of employment violated several Federal Aviation Regulations (FARS), and, as a result, he was too fatigued to execute his duties safely. For the reasons stated herein, we affirm the judgment of the trial court.

FACTS/PROCEDURAL HISTORY

Plaintiff began working as a flight engineer for Defendant Tradewind Airlines in December 1997. On 26 February 2000, plaintiff reported for duty at 6:45 a.m. and remained on duty until 10:15 a.m. the next morning. While plaintiff was resting in his motel room in Burlington, Vermont defendant requested that plaintiff fly the plane without passengers (a.k.a. "ferry flight") back to Greensboro, North Carolina at midnight the evening of 27 February 2000. Plaintiff indicated he was too tired, refused to make the flight, and was terminated from employment with defendant.

Plaintiff filed a wrongful termination suit against defendant in Guilford County Superior Court. Defendant removed the action to federal court, alleging federal question jurisdiction based on preemption of the claim by the Federal Aviation Act (FAA). Defendant moved to dismiss the case. Plaintiff filed a motion to remand alleging the federal court lacked subject matter jurisdiction. On 9 March 2004, the case was remanded to Guilford County Superior Court from the U.S. District Court, Middle District of North Carolina by Judge N. Carlton Tilley, Jr. who determined that

because the federal courts are of limited jurisdiction and because all doubts should be resolved in favor of remand, this Court finds that the FAA does not completely preempt state law. As such, this Court has no subject matter jurisdiction and the case is remanded to state court for further proceedings.

On 15 July 2004, Superior Court Judge Lindsay R. Davis, Jr. found that plaintiff's claim was not preempted by the FAA and denied defendant's Rule 12(b)(6) motion to dismiss. Defendant filed an answer on 29 July 2004, and filed a motion for summary judgment on 16 June 2006. Plaintiff filed a motion to amend his complaint on 18 August 2006.

On 7 September 2006, defendant's summary judgment motion was denied, and this case came on for trial on 25 September 2006 before Superior Court Judge Stuart Albright in Guilford County. At the close of plaintiff's evidence, defendant moved for a directed verdict which was granted on 20 October 2006. From the trial court's order granting defendant's motion, plaintiff appeals.

Both parties raise several issues on appeal. The issues presented by plaintiff are whether the trial court erred in: (I) granting defendant's motion for a directed verdict and concluding, as a matter of law, that 14 C.F.R. § 91.13 and N.C. Gen.Stat. § 63-13 are too vague and ambiguous to constitute a public policy exception to North Carolina's at-will employment doctrine; (II) granting defendant's motion for a directed verdict, and concluding, as a matter of fact, that no reasonable jury could conclude that defendant violated 14 C.F.R. § 121.521 and 14 C.F.R. § 121.503; (III) excluding from evidence several of plaintiff's exhibits; and, (IV) awarding defendant deposition costs.

On cross-appeal, the issues presented by defendant are whether the trial court erred in: (V) failing to conclude that the public policy exception to the at-will employment doctrine is limited to express statements within North Carolina's statutes or constitution; and (VI) denying defendant's motion to dismiss, and finding that plaintiff's wrongful discharge claim was not preempted by federal law.

Standard of Review

On review, a motion for a directed verdict presents the question of whether the evidence taken in a light most favorable to the plaintiff was sufficient for submission to the jury. Helvy v. Sweat, 58 N.C.App. 197, 199, 292 S.E.2d 733, 734 (1982) (citation omitted). The motion should be denied "if there is more than a scintilla of evidence to support all the elements of plaintiff's prima facie case." Southern R. Co. v. O'Boyle Tank Lines, Inc., 70 N.C.App. 1, 4, 318 S.E.2d 872, 875 (1984). The standard of review for the granting of defendant's directed verdict motion is whether "when viewing the evidence in the light most favorable to plaintiff no reasonable juror could find for plaintiff." Allen v. Weyerhaeuser, Inc., 95 N.C.App. 205, 207, 381 S.E.2d 824, 826 (1989) (citing West v. Slick, 313 N.C. 33, 40, 326 S.E.2d 601, 606 (1985)).

I

The critical question this Court is being asked to address is whether defendant's termination of plaintiff based on his refusal to fly a non-revenue flight (or ferry flight) back to Greensboro on 27 February 2000 was in contravention of North Carolina public policy. We conclude it was not.

In North Carolina, employment is generally terminable by either the employer or employee for any reason where no contract exists specifying a definite period of employment. Rucker v. First Union Nat'l Bank, 98 N.C.App. 100, 102, 389 S.E.2d 622, 624 (1990) (citation omitted). This is a bright-line rule with very limited exceptions. An at-will employee may not be terminated: "(1) for refusing to violate the law at the employers [sic] request, (2) for engaging in a legally protected activity, or (3) based on some activity by the employer contrary to law or public policy." Ridenhour v. IBM, 132 N.C.App. 563, 568-69, 512 S.E.2d 774, 778 (1999) (internal citations omitted).

Here, it is undisputed that plaintiff was an at-will employee, and the first issue on appeal is whether defendant's actions violated the public policy of North Carolina. To prevail on a claim for unlawful termination in violation of public policy "a plaintiff must identify a specified North Carolina public policy that was violated by an employer in discharging the employee." Salter v. E & J Healthcare, Inc., 155 N.C.App. 685, 694, 575 S.E.2d 46, 52 (2003) (citation omitted).

In Coman v. Thomas Mfg. Co., 325 N.C. 172, 381 S.E.2d 445 (1989), our Supreme Court first recognized a public policy exception to the employment-at-will doctrine:

[W]hile 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. A different interpretation would encourage and sanction lawlessness, which law by its very nature is designed to discourage and prevent.

Id. at 175, 381 S.E.2d at 447 (quoting Sides v. Duke University, 74 N.C.App. 331, 342, 328 S.E.2d 818, 826 (1985)). In Coman, the plaintiff brought suit for wrongful discharge, alleging he was terminated from his employment as a long-distance truck driver after refusing to falsify driving records, a violation of federal transportation regulations. Id. at 173-74, 381 S.E.2d at 446. The Court held the actions of the defendant violated the public policy of North Carolina as set out in certain general statutes that promulgate highway safety and regulation. Id. at 175, 381 S.E.2d at 447. "[P]ublic policy has been defined as the principle of law which holds that no citizen can lawfully do that which has a tendency to be injurious to the public or against the public good." Id. at 175 n. 2, 381 S.E.2d at 447 n. 2 (citing Petermann v. Int'l Bhd. of Teamsters, 174 Cal.App.2d 184, 344 P.2d 25 (1959)).

While Coman establishes the availability of a tort action for wrongful discharge in violation of public policy, the Court did not otherwise define what constituted "public policy" for purposes of such a claim. Id. at 177, 381 S.E.2d at 448. The public policy exception, under which plaintiff in the instant case brings this suit, is not encapsulated by an enumerated list. Garner v. Rentenbach Constructors, Inc., 129 N.C.App. 624, 628, 501 S.E.2d 83, 86 (1998). Rather, this exception is applicable where (1) the public policy of North Carolina is clearly expressed within our general statutes or state constitution, or (2) potential harm to the public is created by defendant's unlawful actions. See Considine v. Compass Group USA, Inc., 145 N.C.App. 314, 321, 551 S.E.2d 179, 184 (2001); see also Amos v. Oakdale Knitting Co., 331 N.C. 348, 353, 416 S.E.2d 166, 169 (1992) ("Although the definition of `public policy' approved by this Court does not include a laundry list of what is or is not `injurious to the public or against the public good,' at the very least public policy is violated when an employee is fired in contravention of express policy declarations contained in the North Carolina General Statutes.").

Plaintiff argues that the trial court erred in finding that 14 C.F.R. § 91.13 and N.C.G.S. § 63-13 are too ambiguous and vague as a matter of law to constitute North Carolina public policy. We disagree.

Under 14 C.F.R. § 91.13, "Careless or reckless operation":

(a) Aircraft operations for the purpose of air navigation. No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another, (b) Aircraft operations other than for the purpose of air navigation. No person may operate an aircraft, other than for the purpose of air navigation, on any part of the surface of...