Youse v. Duke Energy Corp.

CourtUnited States State Supreme Court of North Carolina
Citation614 S.E.2d 396
Decision Date05 July 2005
Docket NumberNo. COA04-797.,COA04-797.
PartiesSylvia YOUSE, Plaintiff-Appellant, v. DUKE ENERGY CORPORATION, Defendant-Appellee.

Hicks McDonald Noecker LLP, by David W. McDonald, Greensboro, for plaintiff-appellant.

Constangy, Brooks & Smith, LLC, by John J. Doyle, Jr. and Jill Stricklin Cox, Winston-Salem, for defendant-appellee.

McGEE, Judge.

Sylvia Youse (plaintiff) was employed by Duke Energy Corporation (defendant) from 8 October 1984 to 21 March 2002. Plaintiff became a Quality Assurance Analyst (QAT Analyst) for defendant on 1 June 1999. The QAT Analyst job description contained the following provision:


Monitors and evaluates the quality of inbound telephone calls. Document[s] quality issues and performance measures for management review. . . . Provide[s] information to assist in the feedback and formal education process of individuals on the phone. Provides subject matter expertise regarding call segment processes and call criteria. Informal feedback and auditing of non-call work is also summarized and audited to assure quality issues are addressed.


. . . .

2. . . .

. . . .

B. Maintains appropriate relationships and credibility needed to assure that quality scores are used effectively to improve performance of Customer Service Specialists.

Plaintiff and her husband owned a house in Mebane, North Carolina (the Mebane house), which they leased to their son and daughter-in-law. Defendant provided electrical service to the Mebane house. Plaintiff's son and daughter-in-law arranged to move out of the Mebane house in February 2002. Electrical service was scheduled to be changed from plaintiff's daughter-in-law's name to plaintiff's name on 18 February 2002. However, the electrical service was disconnected on 11 February 2002.

Plaintiff telephoned defendant on 11 February 2002 and inquired as to why the electrical service was not working. Plaintiff spoke with customer service representative Demishie Grier (Grier), who informed plaintiff that the electrical service had been disconnected for non-payment. Plaintiff and Grier began to disagree as to whether the electrical service should be turned back on. When plaintiff asked to speak with a supervisor, Grier stated that Grier could not transfer the call but would have a supervisor call plaintiff. Plaintiff stated that she could not be called back since she was on a cell phone and had an unreliable connection. Plaintiff and Grier thereafter ended their telephone conversation.

Plaintiff then telephoned call service response and spoke with Billy Kingry (Kingry), a service response specialist. Plaintiff had originally hired Kingry to work for defendant and was Kingry's former supervisor. Plaintiff asked Kingry to look at the Mebane house account and told him that she needed electrical service at the Mebane house. Kingry then arranged to have the electrical service turned back on at the Mebane house. This reconnection of the electrical service was in violation of defendant's "non-pay reconnect" guidelines, which provide that a reconnect of an account is only available once payment has been made on the account. Kingry told Yolanda Peterson (Peterson), a HR Consultant for defendant, that he did "ma[k]e an exception for [plaintiff] because of [Kingry and plaintiff's] previous relationship and [plaintiff's] knowledge of how things work."

The following day, on 12 February 2002, defendant determined that the electrical service at the Mebane house had been erroneously reconnected. The account was scheduled for another non-pay disconnect, and a disconnect notice was delivered to the Mebane house.

Peterson received an email on 18 February 2002 from Dawn Morrison (Morrison), plaintiff's supervisor. The email stated that plaintiff may have engaged in "very inappropriate conduct." The email also recommended that an investigation take place. Peterson began an investigation into plaintiff's conduct, during which Peterson interviewed numerous individuals and reviewed the history of the Mebane house account. Plaintiff was removed from defendant's employment on 8 March 2002 pending the completion of Peterson's investigation.

During the course of the investigation, Peterson learned that in January 2002, plaintiff had accessed her daughter-in-law's account at the Mebane house. This activity was in violation of defendant's procedures which prohibit employees from working on their own, their co-workers,' or their family members' electrical service accounts. Peterson also determined that plaintiff's conduct, when plaintiff spoke with Grier, included "hostile and intimidating statements" and an "attempt to persuade. . . Grier to circumvent established call procedures." Finally, Peterson found that plaintiff "circumvent[ed] . . . customer service processes" when she called Kingry directly in an effort to restore the electrical service, and that she made false statements to Kingry about the Mebane house account. Due to this conduct, Peterson determined that plaintiff was unable to satisfy the requirements of her position as a QAT Analyst. Peterson found that plaintiff

compromised her credibility and her relationship with [defendant's] employees when she completely disregarded the very same customer service procedures that she was charged with administering, made intimidating statements to a customer service specialist and service response employee, and abused her position [with defendant] to achieve her own personal objectives.

Peterson recommended to Lynetta Chisolm (Chisolm), General Manager of Customer Contact Services, that plaintiff be discharged. Chisolm agreed, and plaintiff's employment with defendant was terminated on 21 March 2002.

Plaintiff filed a complaint against defendant on 20 September 2002, alleging wrongful termination in violation of public policy based on age and handicap discrimination, negligent infliction of emotional distress, a violation under the Wage and Hour Act, N.C. Gen.Stat. § 95-25.1-95-25.25, and punitive and special damages. That same day, plaintiff filed a complaint in the United States District Court for the Middle District of North Carolina (Middle District) alleging identical facts to those in the state court complaint. The complaint filed in the Middle District alleged violations of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621-634, the Americans with Disabilities Act of 1990(ADA), 42 U.S.C. § 12101-12213, and the Employment Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001-1461. Defendant filed a motion for summary judgment in the Middle District case on 24 October 2003. In an order and recommendation dated 15 December 2003, a magistrate judge recommended that defendant's motion for summary judgment be granted. Youse v. Duke Energy Corporation, 1:02CV00808 (M.D.N.C.2003). Plaintiff objected to the recommendation, and a district court judge made a de novo determination of the magistrate judge's recommendation. See 28 U.S.C. § 636(b)(1) (2004). The district court judge adopted the magistrate judge's recommendation and ordered that defendant's motion for summary judgment be granted as to all claims on 23 January 2004.

Defendant filed a motion for summary judgment in state court on 21 January 2004. The trial court granted defendant's motion in an order entered 11 February 2004. Plaintiff appeals.


We first address defendant's argument that plaintiff's appeal should be dismissed due to plaintiff's violations of the North Carolina Rules of Appellate Procedure. Defendant specifies that plaintiff has violated the Rules by: (1) failing to reference the record page numbers on which her assignments of error appear, see N.C.R.App. P. 28(b)(6); (2) referencing the incorrect assignment of error in support of Argument D in her brief, see id.; (3) using argumentative language when summarizing the facts of the case, see N.C.R.App. P. 28(b)(5); (4) failing to reference pages of the transcript or record on appeal in connection with her factual assertions, see id.; (5) failing to include relevant portions of statutes in the Appendix to her brief, see N.C.R.App. P. 28(d)(1)(c); (6) using the incorrect font size for the footnotes in her brief, see N.C.R.App. P. 26(g); (7) providing the improper citations for several of the authorities on which plaintiff's brief relies, see N.C.R.App. P. 28(b)(6); and (8) filing her Appeal Information Statement two weeks after the date her brief was due to be filed, see N.C.R.App. P. 41(b)(2).

Although we recognize that plaintiff failed to comply with several of our Rules of Appellate Procedure, we do not find that dismissal of the appeal is proper in this case. Despite the Rules violations, we are able to determine the issues in this case on appeal. Furthermore, we note that defendant, in filing a brief that thoroughly responds to plaintiff's arguments on appeal, was put on sufficient notice of the issues on appeal. See Viar v. N.C. Dep't of Transportation, 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005). Since plaintiff's Rules violations are not "so egregious as to invoke dismissal [,]" Symons Corp. v. Insurance Co. of North America, 94 N.C.App. 541, 543, 380 S.E.2d 550, 552 (1989), we elect to review the significant issues of this appeal pursuant to N.C.R.App. P. 2. See Symons, 94 N.C.App. at 543, 380 S.E.2d at 552.


Plaintiff's first assignment of error contends that the trial court erred in granting summary judgment in favor of defendant on plaintiff's claim of wrongful discharge against public policy. The trial court's order stated the following:

1. Defendant is entitled to summary judgment on plaintiff's claim of wrongful discharge against public policy. . ....

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