Percell v. International Business Machines, Inc., No. 90-538-CIV-5-D.

• Court: United States District Courts. 4th Circuit. Eastern District of North Carolina
• Citation: 765 F. Supp. 297
• Docket Number: No. 90-538-CIV-5-D.
• Decision Date: 16 May 1991
• Parties: Robert L. PERCELL, Plaintiff, v. INTERNATIONAL BUSINESS MACHINES, INC., Defendant.

765 F. Supp. 297

Robert L. PERCELL, Plaintiff,
v.
INTERNATIONAL BUSINESS MACHINES, INC., Defendant.

No. 90-538-CIV-5-D.

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

May 16, 1991.

765 F. Supp. 298

Robert J. Willis, Avery & Jones, Raleigh, N.C., for plaintiff.

Howard Edward Manning, Jr., Michael T. Medford, Manning, Fulton & Skinner, Raleigh, N.C., for defendant.

ORDER

DUPREE, District Judge.

Plaintiff originally filed this action in the Wake County Superior Court alleging that he was discharged from his employment as a tool and model maker due to his race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. After defendant removed the action to this court, plaintiff filed a motion to amend the complaint to add causes of action for racially discriminatory discharge under 42 U.S.C. § 1981 and for wrongful discharge in bad faith under North Carolina common law. Defendant did not oppose the motion to amend but reserved the right to move to dismiss the proposed additional claims under F.R.Civ.P. 12(b)(6). The action is currently before the court on defendant's motion to dismiss the amended complaint to the extent that plaintiff purports to state claims under 42 U.S.C. § 1981 and for wrongful discharge. Also pending is an appeal by plaintiff of the magistrate judge's order of April 29, 1991 extending discovery until June 30, 1991.

I. FACTS

For the purposes of ruling on defendant's motion to dismiss, the allegations of plaintiff's amended complaint will be accepted as true. Plaintiff was employed with defendant from July 1974 until August 1989, initially as a machine operator and for the last eight to ten years as a tool and model maker. Throughout the period of plaintiff's employment, defendant had a written "open door policy" which gave all employees the right to appeal the decisions of immediate supervisors to higher level management. Plaintiff alleges that in January 1989, he exercised his rights under the open door policy to appeal the decision of David Geil, plaintiff's immediate supervisor, with respect to Geil's failure to allow plaintiff to transfer to a different work location. Plaintiff alleges that after he exercised his rights under the open door policy, he began to receive repeated negative performance evaluations and inspection reports from defendant's management. As a result of the volume of notices of

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substandard work performance, plaintiff was discharged on August 15, 1989

Plaintiff alleges that his termination was based on race since white tool and model makers performing at the same level of quality and speed who had exercised their open door policy rights were given fewer negative evaluations and inspection reports and were not discharged. Alternatively, plaintiff alleges that his discharge was motivated by bad faith or an intent to retaliate against plaintiff for exercising his rights under the open door policy.

II. CLAIM UNDER 42 U.S.C. § 1981

Defendant argues persuasively that since plaintiff complains only about the termination of his employment, he cannot maintain a claim under 42 U.S.C. § 1981. Defendant points out that the Fourth Circuit has ruled with the majority of the courts of appeals in holding that under Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), "discriminatory discharge claims are not actionable under section 1981." Williams v. First Union National Bank of N.C., 920 F.2d 232, 234 (4th Cir.1990).

Plaintiff acknowledges the Williams decision, but argues that it was wrongly decided. Plaintiff continues to rely on Hicks v. Brown Group, Inc., 902 F.2d 630 (8th Cir.1990) (finding discriminatory discharge claim actionable under Section 1981), a decision cited and rejected by the Fourth Circuit in Williams. Because this court is bound to follow Fourth Circuit precedent, defendant's motion to dismiss the amended complaint to the extent that it purports to state a claim under 42 U.S.C. § 1981 is granted.

III. WRONGFUL DISCHARGE CLAIM

Defendant also moves to dismiss the amended complaint to the extent that it purports to state a claim for wrongful discharge under North Carolina law, arguing that the facts of plaintiff's case do not fit within the narrow exception to the employment at-will doctrine created by the North Carolina Supreme Court in 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 lawsuit 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 as envisioned by Coman and though perhaps illogical did not demonstrate bad faith. Id. 95 N.C.App. at 306-07, 382 S.E.2d 836. In Harrison v. Edison Brothers Apparel Stores, Inc., 924 F.2d 530, 534 (4th Cir.1991), the plaintiff 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 at the

765 F. Supp. 300

store where she worked, which the Fourth Circuit stated was analogous to requiring plaintiff to engage in prostitution in order to retain her job. Most recently, in Amos v. Oakdale Knitting Company, 102 N.C. App. 782, 403 S.E.2d 565 (1991), an action brought by employees who were fired for refusing to accept less than the minimum wage, the North Carolina Court of Appeals affirmed the dismissal of a wrongful discharge action on the grounds that the employees had other statutory remedies available to them

Turning to the case at hand, plaintiff argues that his discharge in retaliation for exercising his rights under defendant's open door policy violates North Carolina's public policy. Using the analysis suggested by a law review article, plaintiff argues that it would be against public policy to allow an employer to terminate an employee for appealing a supervisor's decision when the employer's policy had encouraged...