Sides v. Duke University, 8314SC1308

Citation74 N.C.App. 331,328 S.E.2d 818
Decision Date07 May 1985
Docket NumberNo. 8314SC1308,8314SC1308
CourtCourt of Appeal of North Carolina (US)
Parties, 120 L.R.R.M. (BNA) 2091, 103 Lab.Cas. P 55,512, 24 Ed. Law Rep. 1033, 1 IER Cases 512 R. Marie SIDES v. DUKE UNIVERSITY, Gloria Farmer, Merel Harmel, and John Miller.

Edelstein, Payne and Jordan by M. Travis Payne, Raleigh, for plaintiff-appellant.

Powe, Porter & Alphin by N.A. Ciompi and William E. Freeman, Durham, for defendants-appellees Duke University and Gloria Farmer.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by James G. Phillips, Susan M. Parker, and Susan E. Rector, Raleigh, for defendants-appellees Merel Harmel and John Miller.

The North Carolina Academy of Trial Lawyers by Kathy A. Klotzberger, Raleigh, as amicus curiae.


Does the complaint which alleges that plaintiff was discharged from her job at Duke University Medical Center in retaliation for her refusal to withhold testimony or testify untruthfully in a lawsuit against some of the defendants state a claim for relief against any of the defendants? That is the only question presented by this appeal. Plaintiff contends that she has pleaded legally enforceable claims for relief in both tort and contract against various of the defendants. We consider first whether plaintiff has pleaded a claim for relief in tort for wrongful discharge.


At the threshold we are confronted by the decision of this Court in Dockery v. Lampart Table Co., 36 N.C.App. 293, 244 S.E.2d 272, disc. rev. denied, 295 N.C. 465, 246 S.E.2d 215 (1978). In that case, speaking through Judge Mitchell now Justice Mitchell, this Court held that an employee at will in this State has no enforceable claim against his employer for "retaliatory discharge," an action that many courts in this country have recognized and enforced under various circumstances. The plaintiff in that case, so he alleged, was discharged in retaliation for filing a worker's compensation claim against his employer. The general common law rule, of course, in this In rejecting this argument the Dockery court noted that: The decision of the Indiana Supreme Court in Frampton was based upon its approval of the retaliatory eviction defense which many courts permit in tenancy at will eviction cases and that this defense had been disapproved by this Court in Evans v. Rose, 12 N.C.App. 165, 182 S.E.2d 591, cert. denied, 279 N.C. 511, 183 S.E.2d 686 (1971). The Court concluded that "failure of the General Assembly to specifically provide the claim for relief alleged by the plaintiff was an indication of its intent that no such claim be created." 36 N.C.App. at 300, 244 S.E.2d at 277. In so concluding, the Court may not have read the legislative intent as to retaliatory discharge actions aright. In all events at the next session after the Dockery decision came down the General Assembly expressly authorized actions by employees demoted or discharged in retaliation for instituting a worker's compensation proceeding in good faith or for testifying in regard to it. G.S. 97-6.1. At that same session the General Assembly also authorized the affirmative defense of retaliatory eviction in certain summary ejectment cases. G.S. 42-37.1. The alacrity with which the legislature acted in both of these fields after that deficiency in the statutes was pointed out tends to show, we think, that the legislature is not at all adverse to courts of this State entertaining actions based on a violation of policies that have been enacted or otherwise established for the protection and benefit of the public. And we must say that no rational reason for the legislature generally opposing the enforcement of its enactments by the civil courts occurs to us, and would think that in the absence of a declaration to the contrary it should be assumed that the legislature favors the enforcement of the law by all legitimate and customary means, including suits in the civil courts in proper cases.

and other jurisdictions, as the plaintiff recognized, is that when a contract of employment does not fix a definite term the employment is terminable without cause at the will of either party. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976); Smith v. Ford Motor Co., 289 N.C. 71, 221 S.E.2d 282 (1976). The plaintiff in Dockery argued that notwithstanding the general rule the Court should and could recognize plaintiff's wrongful discharge action either on the ground that it was authorized by statute or on the ground that public policy required it. His main reliance was on the case of Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973), where, on facts similar to Dockery, the Indiana Supreme Court carved out a "retaliatory discharge" exception to the common law doctrine that contracts of an indefinite duration are terminable at will and without legal recourse. Plaintiff pointed out that the Indiana Worker's Compensation Law provided, as did the North Carolina Workers' Compensation Act through G.S. 97-6, that no employer could avoid its obligation under the law by any agreement, rule, regulation or other device; and that the Frampton court viewed the discharge by the employer in retaliation for the employee filing a worker's compensation claim as a "device" for avoiding its obligations under the law, since its inevitable effect would be to discourage other injured workers from filing claims, and therefore wrongful and actionable.

But whether or not the Dockery refusal to recognize an action for retaliatory discharge has been undermined by those enactments of the General Assembly, the public policy considerations that affect this case are much more compelling than those that affected that case. Though the public has a strong interest in allowing workers to pursue their statutory remedies for worker's compensation without being in fear of losing even greater benefits--their jobs and means of livelihood--if they do, the public interest in preventing the obstruction of justice is greater still. Perjury and the subornation of perjury were both felonies at common law and are so punishable by G.S. 14-209 and G.S. 14-210. The intimidation of witnesses was an offense at common law and is punishable by G.S. 14-226 as a misdemeanor. These offenses are also an affront to the integrity of our judicial It is generally agreed that the terminable-at-will doctrine was the prevailing common law in the latter part of the nineteenth century:

system, an impediment to the constitutional mandate of the courts to administer justice fairly, and a violation of the right that all litigants in this State have to have their cases tried upon honest evidence fully given. Indeed, as every citizen of ordinary intelligence must surely know, under our law before any witness can testify in any civil or criminal case he must solemnly affirm or swear that the evidence given by him "shall be the truth, the whole truth, and nothing but the truth." G.S. 11-11. Because of these distinctions we do not view Dockery as controlling this case, and believe that to deny that an enforceable claim has been stated in this instance would be a grave disservice to the public and the system of law that we are sworn to administer, no principle of which requires that civil immunity be given to those who would defile or corrupt it.

With us the rule is inflexible, that a general or indefinite hiring is prima facie a hiring at will and if the servant seeks to make it out a yearly hiring, the burden is upon him to establish it by proof.... [I]t is an indefinite hiring and is determinable at the will of either party....

H.G. Wood, Master and Servant § 134 (1877) quoted in Feinman, The Development of the Employment at Will Rule, 20 Am.J. of Legal History, 118, 126 (1976). But this represented a departure from the earlier English common law rule that contracts of indefinite duration were presumed to be for a year, 2 W. Blackstone, Commentaries, * 425; Feinman, supra at 119-22; and at least one court has questioned whether Wood's statement was supported by the authority it cited and was accurate when written. Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 335 N.W.2d 834 (1983).

The common law of North Carolina is the common law of England as it existed when independence was declared in 1776. Steelman v. City of New Bern, 279 N.C. 589, 184 S.E.2d 239 (1971). Inasmuch as the terminable-at-will doctrine may not have been a part of the English common law, it is thus possible that the pedigree of our common law rule is questionable. Nevertheless, the rule was well suited to the socio-economic climate that necessitated its development, see Comment, A Common Law Action for the Abusively Discharged Employee, 26 Hastings Law Journal, 1434, 1440-41 (1975), and, correctly or not, our courts have long adhered to the rule. E.g. Still v. Lance, 279 N.C. 254, 182 S.E.2d 403 (1971); Tuttle v. Kernersville Lumber Co., 263 N.C. 216, 139 S.E.2d 249 (1964); May v. Tidewater Power Co., 216 N.C. 439, 5 S.E.2d 308 (1939). See generally, Note, Workers' Compensation--Retaliatory Discharge--The Legislative Response to Dockery v. Lampart Table Co., 58 N.C.L.Rev. 629 (1980).

In recent years, the rule has come under increasing criticism from scholars, e.g. Blades, Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 Colum.L.Rev. 1404 (1967); Summers, Individual Protection Against Unjust Dismissal: Time for a Statute, 62 Va.L.Rev. 481 (1976); Peck, Unjust Discharges from Employment: A Necessary Change in the Law, 40 Ohio St.L.J. 1 (1979); Note, Protecting Employees at Will Against Wrongful Discharge: The Public Exception, 96 Harv.L.Rev. 1931 (1983); Note, Continued Resistance to the Inclusion of Personnel Policies in Contracts of Employment: Griffin v. Housing Authority of Durham, 62 N.C.L.Rev. 1326 (1984); Note, Workmen's Compensation--No Private Right of Action for Retaliatory Discharge in North Carolina, 15...

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