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NO. COA02-965
NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2003
MARK
JAMES BRACKETT,
Plaintiff,
v. North
Carolina Industrial Commission
I.C. File No. 041396
SGL
CARBON CORPORATION,
Defendant.
Appeal by plaintiff from orders entered 25 February 2002 and 8 March 2002 by Judge Kimberly S. Taylor in Burke County Superior Court. Heard in the Court of Appeals 16 April 2003.
Mark
James Brackett, pro se, for plaintiff-appellant.
Parker,
Poe, Adams & Bernstein, L.L.P., by Jonathan M. Crotty and John B. Anderson,
for defendant-appellee.
MARTIN,
Judge.
Plaintiff
filed this action alleging defendant’s violation of the North Carolina
Retaliatory Employment Discrimination Act (“REDA”). Plaintiff sought
compensatory and punitive damages and injunctive relief. According to the
allegations of the complaint, plaintiff alleges he developed skin lesions on
his arm due to burns sustained at work during 1998. He reported these injuries
to defendant in the fall of 1999, took medical leave, and requested that
defendant pay for surgical removal of the lesions. He was released to return to
work by the company doctor on 1 December 1999. Plaintiff alleged that on 2
December 1999 he was falsely accused by defendant of working for another
employer during his leave. Defendant terminated plaintiff’s employment, denied
liability for his alleged injuries, and refused to pay for his medical
expenses.
On
2 June 2000, plaintiff filed a REDA claim against defendant with the North
Carolina Department of Labor (“NCDOL”), alleging he was fired because he
reported an on-the-job injury. Plaintiff received a “right-to-sue” letter from
the NCDOL on 22 June stating that it was dismissing plaintiff’s complaint due
to his failure to file the REDA claim within 180 days of the alleged
discriminatory discharge as required by statute. Plaintiff was subsequently
reinstated by defendant on 28 August 2000 and returned to work.
Based
on the right-to-sue letter, plaintiff filed the instant civil action in Burke
County Superior Court on 20 September 2000. On 22 November 2000, defendant
filed a “Motion for Judgment as a Matter of Law,” citing G.S. §1A-1, Rules
12(b)(6) and 56(b), asserting plaintiff’s claim is time-barred. Eleven months
thereafter, plaintiff filed a Motion to Amend seeking to allege that defendant
had, since plaintiff’s return to work, committed an additional discriminatory
act under REDA. Before the motions were heard, plaintiff filed a Supplemental
Motion For Leave to Amend on 21 February 2002, in which he also sought to
allege a common law claim for wrongful discharge. Plaintiff appeals from the
trial court’s orders dismissing his complaint with prejudice and denying his
Motion to Amend and Supplemental Motion for Leave to Amend.
__________________________________
By
his assignments of error, plaintiff asserts the trial court erred in (1)
granting defendant’s motion and dismissing plaintiff’s complaint and (2)
denying plaintiff’s motions to amend his complaint.
Plaintiff
first asserts that although he filed his REDA claim with the NCDOL over 180
days after the alleged discriminatory discharge, his claim should not have been
dismissed. We note at the outset that the trial court appears to have proceeded
under Rule 12(b)(6) in dismissing plaintiff’s complaint. Although the trial
court must have necessarily considered plaintiff’s administrative complaint
and/or right-to-sue letter, documents not attached to the complaint, in ruling
on the motion, because plaintiff referred to these documents in the complaint
and they form the procedural basis for the complaint, the trial court did not
convert the motion into one for summary judgment by doing so. See Scott v.
United Carolina Bank, 130 N.C. App. 426, 428, 503 S.E.2d 149, 151 (1998)
(consideration of trust indenture referred to in complaint did not convert
12(b)(6) motion to one for summary judgment), disc. review denied, 350 N.C.
99, 528 S.E.2d 584 (1999); Brooks Distributing Co. v. Pugh, 91 N.C. App.
715, 717-18, 373 S.E.2d 300, 302 (1988) (consideration of contracts presented
by defendants at pre-trial conference which were subject of action did not
convert motion to one for summary judgment), reversed on other grounds,
324 N.C. 326, 378 S.E.2d 31 (1989).
To determine whether a complaint is sufficient
to survive a Rule 12(b)(6) motion to dismiss, the court must ascertain
“‘whether, as a matter of law, the allegations of the complaint, treated as
true, are sufficient to state a claim upon which relief may be granted under
some legal theory.’“ Pursuant to Rule 12(b)(6), a complaint should be dismissed
“‘if no law exists to support the claim made, if sufficient facts to make out a
good claim are absent, or if facts are disclosed which will necessarily defeat
the claim.’“
Plummer v. Community General Hosp., ___ N.C. App. ___, ___, 573 S.E.2d 596,
598 (2002) (citations omitted).
G.S.
§95-242, a provision of REDA, states in pertinent part:
(a) An
employee allegedly aggrieved by a violation of G.S. 95-241 may file a written
complaint with the Commissioner of Labor alleging the violation. The
complaint shall be filed within 180 days of the alleged violation . . . .
N.C. Gen. Stat. §95-242(a) (2002)
(emphasis added). Citing Commissioner of Labor v. House of Raeford Farms,
124 N.C. App. 349, 477 S.E.2d 230 (1996), disc. review improv. allowed,
347 N.C. 347, 492 S.E.2d 354 (1997), plaintiff contends the 180-day statutory
time limit should not be strictly construed. Plaintiff relies, in particular,
on the Court’s statement that:
Generally,
“statutory time periods are . . . considered to be directory rather than
mandatory unless the legislature expresses a consequence for failure to comply
within the time period.” Mandatory provisions are jurisdictional, while
directory provisions are not.
Id. at 353-54, 477 S.E.2d at 233 (citations omitted). Because
G.S. §95-242(a) provides no express consequence for failure to file a REDA
claim with the NCDOL within 180 days, plaintiff asserts the time limit is
merely “directory, not mandatory.”
Plaintiff’s
reliance on House of Raeford Farms is misplaced. House of Raeford
Farms dealt with a claims processing time limit imposed on the NCDOL, the
agency responsible for reviewing REDA claims under the statute. In declaring
the time limit was not mandatory, the Court specifically expressed concern
about interpreting the statute to allow agency delay to prejudice the claims of
private citizens, id. at 356, 477 S.E.2d at 234, and cited similar
decisions regarding statutory time limits on the actions of governmental
authorities processing private claims. See, e.g., Brock v. Pierce
County, 476 U.S. 253, 90 L. Ed. 2d 248 (1986); State ex rel. Utilities
Comm. v. Empire Power Co., 112 N.C. App. 265, 435 S.E.2d 553 (1993), disc.
review denied, 335 N.C. 564, 441 S.E.2d 125 (1994). Thus, we decline to
extend the rationale of House of Raeford Farms to the filing time limit
at issue in the present case.
Although
there is no express statutory consequence for failing to meet the 180-day time
limit set forth in G.S. §95-242(a), case law precedent indicates the limit is a
mandatory one. For example, G.S. §95-243 contains a time limit provision
similar to the one at issue:
(a) An
employee who has been issued a right-to-sue letter . . . may commence a civil
action in the superior court . . . .
(b) A
civil action under this section shall be commenced by an employee within 90
days of the date upon which the right-to-sue letter was issued . . . .
N.C. Gen. Stat. §95-243 (2002) (emphasis
added). In Telesca v. SAS Inst., Inc., 133 N.C. App. 653, 516
S.E.2d 397, disc. review denied, 351 N.C. 120, 540 S.E.2d 749 (1999),
this 90-day limit was interpreted as mandatory, though the statute contains no
express consequence for failure to meet the deadline. In addition, 42 U.S.C.
§2000e-5(e) uses similar language to describe the time for filing charges of
employment discrimination under Title VII of the Civil Rights Act of 1964:
(1) A
charge under this section shall be filed within one hundred and eighty days
after the alleged unlawful employment practice occurred . . . .
42 U.S.C. §2000e-5(e)(1) (2003) (emphasis
added). In Amtrak v. Morgan, the United States Supreme Court declared
this 180-day limitation to be mandatory, holding that “a claim is time barred
if it is not filed within [this] time limit[].” 536 U.S. 101, 108-09, 153 L.
Ed. 2d 106, 119 (2002) (“‘strict adherence to the procedural requirements
specified by the legislature is the best guarantee of evenhanded administration
of the law’“ (citations omitted)). We believe the 180-day time limit for filing
a REDA claim with the NCDOL should be similarly construed. Thus, we hold the
180-day time limit for filing a REDA claim with the NCDOL is mandatory.
Plaintiff’s
remaining argument that where the time limits of REDA conflict with G.S. §1-52,
§1-52 should control, is clearly without merit. See N.C. Gen. Stat.
§1-52(2) (2003) (civil action must be commenced within three years “[u]pon a liability
created by statute, . . . unless some other time is mentioned in the statute
creating it”). Because plaintiff’s administrative REDA complaint and
right-to-sue letter show clearly that plaintiff filed his REDA claim with the
NCDOL over 180 days after the alleged discriminatory discharge, the trial court
did not err in concluding that plaintiff’s complaint failed to state a claim
under REDA and the dismissal of that claim with prejudice is affirmed.
Plaintiff
next argues the trial court erred in denying his motions for leave to amend the
complaint by adding (1) a REDA claim based on alleged retaliatory conduct by
defendant after the original complaint was filed and (2) a claim for wrongful
discharge in violation of public policy based on the original alleged
discriminatory discharge. “A party may amend his pleading once as a matter of
course at any time before a responsive pleading is served . . . . Otherwise a
party may amend his pleading only by leave of court . . . ; and leave shall be
freely given when justice so requires.” N.C. Gen. Stat. §1A-1, Rule 15(a)
(2003). In contrast, “[u]pon motion of a party the court may, . . . upon such
terms as are just, permit him to serve a supplemental pleading setting forth .
. . occurrences or events which may have happened since the date of the
pleading sought to be supplemented . . . .” N.C. Gen. Stat. §1A-1, Rule 15(d)
(2003).
Plaintiff’s
motion to amend to assert an additional REDA claim based on an alleged
post-complaint incident of discrimination falls under Rule 15(d). A trial
court’s decision to grant or deny a motion to serve supplemental pleadings is
reviewable only for abuse of discretion. Miller v. Ruth’s of North Carolina,
Inc., 69 N.C. App. 153, 316 S.E.2d 622 (1984). Aside from failing to meet
any of the time limitations discussed above, without a right-to-sue letter
issued by the Commissioner of Labor, a plaintiff may not file a civil action
for an alleged violation of REDA. N.C. Gen. Stat. §95-243(e) (2003). Because
plaintiff failed to file his additional REDA claim with the NCDOL before
seeking to add it to the instant complaint, the trial court properly determined
that granting plaintiff leave to add it to the complaint would be futile and
denied the motion. See North Carolina Council of Churches v. State, 120
N.C. App. 84, 461 S.E.2d 354 (1995) (noting that motion under either Rule 15(a)
or (d) may be denied if proposed amendment futile).
Plaintiff’s
motion seeking to add to his complaint a claim for wrongful discharge in
violation of public policy based on the original discriminatory discharge is
properly considered under Rule 15(a). See Williams v. Rutherford Freight
Lines, Inc., 10 N.C. App. 384, 391-92, 179 S.E.2d 319, 325 (1971)
(“amendments [under Rule 15(a)] relate to occurrences, transactions and events
that could have been, but for some reason were not, alleged in the pleadings
sought to be amended”). As such, because defendants had yet to file a
responsive pleading and the trial court had yet to rule on defendant’s Rule 12
motion when plaintiff made the motion to amend, it would appear that plaintiff
was entitled to amend the complaint as a matter of right. See Johnson v.
Bollinger, 86 N.C. App. 1, 7, 356 S.E.2d 378, 382 (1987) (motion to dismiss
is not responsive pleading, though trial court’s dismissal of complaint
terminates right to amend). Nonetheless, the trial court denied the motion to
amend as futile.
North
Carolina follows the at-will employment doctrine, which dictates that “in the
absence of a contractual agreement . . . establishing a definite term of
employment, the relationship is presumed to be terminable at the will of either
party without regard to the quality of performance of either party.” Kurtzman
v. Applied Analytical Industries, Inc., 347 N.C. 329, 331, 493 S.E.2d 420,
422 (1997), reh’g denied, 347 N.C. 586, 502 S.E.2d 594 (1998). One of
the few exceptions to this doctrine is the public policy exception.
There
is no specific list of what actions constitute a violation of public policy.
However, wrongful discharge claims have been recognized in North Carolina where
the employee was discharged (1) for refusing to violate the law at the
employers 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, disc. review denied, 350 N.C. 595, 537 S.E.2d 481
(1999). Wrongful discharge in violation of public policy is a tort claim, Paquette
v. County of Durham, ___ N.C. App. ___, ___, 573 S.E.2d 715, 718 (2002), disc.
review denied, ___ N.C. ___, ___ S.E.2d ___ (1 May 2003), and to prevail on
this claim, an employee must “plead[] and prov[e] that the employee’s dismissal
occurred for a reason that violates public policy.” Salter v. E & J
Healthcare, Inc., ___ N.C. App. ___, ___, 575 S.E.2d 46, 51 (2003).
Recently,
in Salter, this Court analyzed whether “a claim of wrongful discharge
based upon North Carolina public policy of not punishing employees for
exercising their statutory rights under the Workers’ Compensation Act was
tenable . . . .” ___ N.C. App. at ___, 575 S.E.2d at 54. Although the Court
concluded that it arguably was, it did not decide the issue definitively
because the evidence proffered by the plaintiff in that case would not have
sustained the claim. Id. Now that the issue is squarely before us, we
agree with the reasoning of Salter on this issue.
Pursuing
one’s rights under the Workers’ Compensation Act, G.S. §§97-1 et seq.
(2003), is a legally protected activity. See N.C. Gen. Stat.
§95-241(a)(1)a. (2003); (former) §97-6.1 (repealed 1991). “[P]ublic policy is
violated when an employee is fired in contravention of express policy
declarations contained in the North Carolina General Statutes.” Amos v.
Oakdale Knitting Co., 331 N.C. 348, 353, 416 S.E.2d 166, 169 (1992)
(plaintiffs stated claim for wrongful discharge in violation of public policy
where allegedly forced to work for less than minimum wage in violation of state
Wage and Hour Act). Moreover, the statutory remedy available for violation of
this public policy does not “diminish the rights or remedies of any employee .
. . at common law.” N.C. Gen. Stat. §95-244 (2002). Therefore, a plaintiff may
state a claim for wrongful discharge in violation of public policy where he or
she alleges the dismissal resulted from an assertion of rights under the
Workers’ Compensation Act. The statute of limitations for such a claim is three
years. N.C. Gen. Stat. §1-52(5) (2003).
The
transcript of the hearing indicates the trial court decided plaintiff’s
amendment would be futile in light of this Court’s decision in Trexler v.
Norfolk S. Ry. Co., 145 N.C. App. 466, 550 S.E.2d 540 (2001). Defendant
asserts that Trexler stands for the principle that employees who are
employed pursuant to union agreements are not at-will employees and therefore
cannot sue in tort for wrongful discharge. However, in Trexler, the
exact terms of the plaintiff’s union agreement were cited as evidence that he
could only be fired for just cause and was thus not an at-will employee. Id.
at 471-72, 550 S.E.2d at 543. In the present case, although defendant asserted
in its legal memorandum to the trial court and argued at the hearing that
plaintiff was a union employee subject to discharge only for just cause under a
collective bargaining agreement, plaintiff did not stipulate to this statement
and neither party offered the collective bargaining agreement into evidence.
Since the terms of the purported union agreement were not before the trial
court, they could not have provided a proper basis for denying the motion to
amend and dismissing the complaint. See Hankins v. Somers, 39 N.C. App.
617, 620, 251 S.E.2d 640, 642 (trial court “should rely only on material that
would be admissible at trial in ruling on” motion to dismiss or for judgment), disc.
review denied, 297 N.C. 300, 254 S.E.2d 920 (1979). The trial court could
only have made its ruling on the basis of defendant’s characterization of an
agreement not in evidence or a misunderstanding of the scope of Trexler.
In either event, plaintiff’s motion to amend the complaint by adding a claim
for wrongful discharge in violation of public policy may not have been futile
and the denial of the motion could not have been the result of a reasoned
decision. Therefore, we reverse the trial court’s denial of plaintiff’s motion
to amend by adding a claim for wrongful discharge and remand this matter for
further proceedings consistent with this opinion.
Affirmed
in part; reversed in part and remanded.
Judges
HUDSON and ELMORE concur.