Summary
stating that the NCEEPA does not provide a private right of action, but that North Carolina state and federal courts have applied it to wrongful discharge claims
Summary of this case from Howell v. N.C. Cent. Univ.Opinion
1:02CV00111
June 4, 2003
MEMORANDUM OPINION AND ORDER
Plaintiff Lisa McLendon Arbia, acting pro se, brings this employment discrimination action against her former employer, Defendant Owens-Illinois, Inc., and several of its managing employees: Defendants David Leineweber, Eugene Escolas, Timothy Stebbins, and Jack Shank. Plaintiff alleges violations of Title VII of the Civil Rights Act ("Title VII"), the Americans with Disabilities Act ("ADA"), the Family and Medical Leave Act ("FMLA"), the Fair Labor Standards Act ("FLSA"), and asserts common law claims for hostile work environment, wrongful discharge and slander. The matter is before the court on Defendants' motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Rule 12(b)(6)"). Because Plaintiff did not commence a civil action by timely filing a complaint pursuant to 42 U.S.C. § 2000e-5 (f)(1) and Rule 3 of the Federal Rules of Civil Procedure ("Rule 3"), the court will grant Defendants' motion to dismiss Plaintiff's Title VII and ADA claims. The court will grant Defendants' motion to dismiss Plaintiff's hostile work environment claim against all Defendants, and the wrongful discharge, FMLA and FLSA claims against the individual Defendants. The court will deny Defendants' motion to dismiss the wrongful discharge, FMLA, and FLSA claims against Defendant Owens-Illinois, and the slander claim against all Defendants because Plaintiff has stated claims upon which relief may be granted.
I. BACKGROUND
The following facts in this multi-claim employment discrimination suit are presented in the light most favorable to Plaintiff. Plaintiff was hired by Owens-Illinois, a glass and plastics manufacturing company, as a full-time employee. She was promoted twice within the sales and customer service departments of the company. Approximately six years after her second promotion, plaintiff required a medical leave of absence from work. Defendant Eugene Escolas notified plaintiff by letter dated October 29, 1999, that Owens-Illinois was classifying her medical leave as FMLA protected. Plaintiff returned to work on November 8, 1999. Approximately 10 days later, she suffered an adverse employment action (a written reprimand) because of absences previously excused as medical leave. Plaintiff submitted both oral and written complaints within the company questioning this adverse employment action. She did not receive clarification from management until she initiated an Equal Employment Opportunity Commission ("EEOC") investigation. Plaintiff claims that this adverse employment action was in retaliation for taking leave in accordance with the FMLA.
The exhibits cited in Plaintiff's amended complaint were attached to Plaintiff's Brief in Response to Defendants' Reply in Support of Defendants' Motion to Dismiss. In deciding a motion to dismiss pursuant to Rule 12(b)(6), a court primarily considers the allegations in the complaint, matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint.Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305, 1312 (4th Cir. 1995) (citing 5A Charles Alan Wright, Arthur R. Miller, Federal Practice Procedure: Civil 2d § 1357); Carter v. Baltimore County, Maryland, 2002 WL 1580679, at *2 (4th Cir. July 17, 2002); Norfolk Fed'n of Bus. Dists. v. City of Norfolk, 1996 WL 671293, at *1 (4th Cir. Nov. 20, 1996) Matters considered outside the pleadings convert the motion into one for summary judgment upon the court's discretion. Fed.R.Civ.P. 12(b). The court will not consider Plaintiff's exhibits in determining the motion to dismiss because they are not attached to the amended complaint. The court declines to convert this motion into one for summary judgment because the parties have not been afforded a reasonable opportunity to conduct discovery, see Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985), and the exhibits are not authenticated by and attached to an affidavit, making them inadmissible for summary judgment purposes. Orsi v. Kirkwood, 999 F.2d 86, 92 (4th Cir. 1993).
The factual record is not specific as to what type of illness or disability plagued Plaintiff.
In addition to retaliating against her for taking FMLA leave, Plaintiff asserts that Defendants ratified slanderous statements of her co-workers. Several of her co-workers made statements relating to an alleged affair between Plaintiff and her supervisor, and that she was "faking her illness" to receive medical leave. (Am. Compl. at 7.) Plaintiff contends that these statements, other disability harassment, and "invasion of privacy issues" created a hostile work environment. Plaintiff asserts that she alerted management to these statements but that Defendants neither corrected nor prevented her co-workers' behavior.
Plaintiff also contends that Defendants owe her overtime compensation for work she performed in addition to her normal duties. Plaintiff suffered a pay reduction when Defendants changed the overtime payment policy with only one day of notice to employees. She attempted unsuccessfully to clarify her job description to determine whether she was on the proper pay scale. Because of the overtime payment policy change, she was no longer eligible for overtime compensation. Plaintiff contends that she is not exempt from the FLSA's overtime provisions under the "administrative exemption." See 29 U.S.C. § 213 (a)(1).
Plaintiff's work problems peaked when she was confronted by management in February 2001. Defendants Stebbins and Escolas met with Plaintiff concerning her "inability to come to work." (Am. Compl. at 8.) Defendant Escolas indicated that if Plaintiff chose not to resign and to accept continued insurance coverage, severance pay, and a neutral job reference, she would be discharged due to absenteeism. Although Defendant Escolas explained Plaintiff's options in signing the prepared documents, Plaintiff contends that because she was denied an attorney's presence while she reviewed the documents, she signed them under duress "for health insurance purposes." (Am. Compl. at 9.) Defendants admit that even if Plaintiff had consulted an attorney, the package would have been rescinded if the prepared documents were not signed during the meeting. Despite the fact that Plaintiff did in fact resign, she alleges that Defendants terminated her employment based on a "mixed motive": a position for another employee's spouse needed to be created, "lack of business," and because accommodation of Plaintiff's request for modification under the ADA was too burdensome. (Am. Compl. at 10.)
Plaintiff filed a complaint with the EEOC in March 2001. The EEOC dismissed her claim and issued her a right-to-sue letter. Plaintiff claims that she received the right-to-sue letter on September 6, 2001. On December 4, 2001, within 90 days of when she allegedly received the right-to-sue letter, Plaintiff filed an application to extend the time for filing in state court. A state court clerk granted Plaintiff's application and extended the filing deadline until December 24, 2001. Plaintiff did not file a complaint in this action until December 27, 2001. Defendants timely removed the case on the basis of federal question, 28 U.S.C. § 1331. Plaintiff amended her complaint pursuant to a court order and Defendants filed an amended answer. Plaintiff seeks reinstatement, reasonable accommodation, back pay, lost wages, retroactive medical benefits, compensatory and punitive damages, and "a court appointed program for sensitivity training to aid [Defendants] in their understanding of accommodating persons with disabilities. . . ." (Am. Compl. at 11.)
II. STANDARD OF REVIEW
A court should dismiss a case for failure to state a claim upon which relief can be granted "only in very limited circumstances." Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir. 1989). When considering a motion to dismiss, the court must evaluate the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded factual allegations. Randall v. United States, 30 F.3d 518, 522 (4th Cir. 1994). Because pleadings drafted by pro se claimants are held to less rigorous standards than pleadings drafted by attorneys, it must appear "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Haines v. Kerner, 404 U.S. 519, 520-21, 92 So. Ct. 594, 596 (1972) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957)). In considering a defendant's motion to dismiss a pro se civil rights plaintiff's claim, the court should "not permit technical pleading requirements to defeat the vindication of any constitutional rights which the plaintiff alleges, however inartfully, to have been infringed." Canty v. City of Richmond, Va. Police Dep't, 383 F. Supp. 1396, 1400 (E.D. Va. 1974)
III. ANALYSIS
1. Title VII of the Civil Rights Act and the Americans with Disabilities Act
The first issue before the court is whether Plaintiff's Title VII and ADA claims are time barred because she failed to file her complaint within 90 days after receiving her right-to-sue letter. For a claimant to be entitled to relief under both Title VII and the ADA, she must file a civil action within 90 days of receipt of the EEOC's right-to-sue letter. 42 U.S.C. § 2000e-5(f)(1). If a claimant does not file within this 90-day period a court may equitably toll the statute of limitations in the following circumstances: (1) the claimant received inadequate notice, (2) a motion for appointment of counsel is pending, (3) the court led the plaintiff to believe that she completed all necessary requirements, or (4) the defendant's affirmative misconduct lulled the plaintiff into inaction. See Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151, 104 So. Ct. 1723, 1725-26 (1984). Otherwise, a claimant's failure to bring suit within 90 days generally forfeits her right to pursue the claim. Id., 466 U.S. at 152, 104 S.Ct. at 1726 ("Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants.").
Title VII's procedural mechanism for timely filing a civil action is expressly adopted by the ADA. 42 U.S.C. § 12117 (a) (stating that the ADA adopts the "powers, remedies, and procedures," including section 2000e-5, set forth in Title VII).
In her amended complaint, Plaintiff stated that she received the right-to-sue letter from the EEOC on September 6, 2001. She filed an application to extend the time to file the complaint in state court on December 4, 2001, two days before the 90-day filing deadline. Although Plaintiff was granted an extension to file until December 24, 2001, Plaintiff concedes that she did not file a complaint until December 27, 2001. Plaintiff offers no explanation for her untimely filing in either her complaint or her amended complaint.
In addressing a pro se plaintiff's failure to file a complaint within the 90-day time period, the Baldwin court stated expressly that the principles of equitable tolling do not apply when a plaintiff has been told multiple times how to preserve his or her claim, but elects not to act diligently. Baldwin, 466 U.S. at 151, 104 S.Ct. at 1726. A claimant who simply lacks diligence is precluded from taking advantage of the principles of equitable tolling, whether or not he or she is proceedingpro se. Id.
Here, there was a directive on the Application and Order Extending Time to File Complaint entitled "note." The note explained that "[a] complaint must be filed in this action within the period provided above. . . ." The order granted Plaintiff permission to "file [the] complaint on or before 12-24-01." The application made clear that filing the complaint within 20 days of the order was necessary to commence the civil action. There are no facts in the record that Plaintiff did not understand this mandate to preserve her claim.
According to Rule 3, "[a] civil action is commenced by filing a complaint with the court." Fed.R.Civ.P. 3. A formal filing is unnecessary; rather, receipt of the complaint by the court perk is sufficient. Martin v. Demma, 831 F.2d 69, 71 (5th Cir. 1987); Hatchell v. Heckler, 708 F.2d 578, 579 (11th Cir. 1983); Robinson v. Yellow Freight Sys., 1989 WL 152510, at *2 (4th Cir. Dec. 1, 1989)
Here, Plaintiff did not attach a complaint when she filed an application for an extension of time on December 4, 2001. She also did not put forth any reasons to equitably toll the statute of limitations in her complaint. Because December 24, 2001, was not a legal holiday, the court cannot enlarge the time specified by the assistant clerk of court. Fed.R.Civ.P. 6(a). Plaintiff was notified by the assistant clerk and in various places on the order granting an extension of time that she had to file her complaint on or before December 24, 2001, to commence her action. Plaintiff's failure to do so was a result of her own lack of diligence. Although Plaintiff is proceeding pro se and the court is willing to interpret her claims very liberally, the court must also uphold the spirit of the federal rules and Congress' procedural hurdles in bringing Title VII and ADA claims in federal court. Therefore, Plaintiff's Title VII and ADA claims will be dismissed because they were not filed timely.
2. The Family and Medical Leave Act
Plaintiff's primary claim is that Defendants retaliated against her for taking prior approved medical leave under the FMLA. In addition to the written reprimand Plaintiff received after returning to work, Plaintiff claims that she was discharged in retaliation for taking FMLA leave. Defendants neither dispute that Plaintiff's FMLA leave was approved by Mr. Escolas, on behalf of Owens-Illinois, nor do they dispute that Plaintiff "suffered a disciplinary action" on the same date Plaintiff allegedly received the written reprimand. (Defs.' Am. Answer ¶ 33.)
According to the FMLA, an employee is entitled to take up to twelve work weeks of unpaid leave per year if he or she can establish one or more of the following four reasons: (1) to care for the employee's newborn child, (2) to care for a child placed with the employee for adoption, (3) to care for the employee's spouse, child or parent who is suffering from a serious health condition, or (4) because the employee is suffering from a serious health condition. 29 U.S.C. § 2612 (a)(1). An employee who takes advantage of such unpaid leave is entitled to reinstatement to his or her former position or an equivalent position, and any employment benefits which may have accrued prior to taking leave. 29 U.S.C. § 2614 (a)(1) (2). To ensure that employees can take full advantage of the FMLA's leave provisions, the act also prohibits employers from interfering with or denying an employee's exercise of his or her rights under the FMLA, and from discharging such an employee. 29 U.S.C. § 1615 (a)(1) (2). According to the FMLA's implementing regulations, "[a]n employer is prohibited from discriminating against employees . . . who have used FMLA leave . . . employers cannot use the taking of FMLA leave as a negative factor in disciplinary actions. . . ." 29 C.F.R. § 825.220 (c); see Dodgens v. Kent Mfg. Co., 955 F. Supp. 560, 565 (D.S.C. 1997) (stating that Plaintiff has a cause of action for retaliatory discharge based on 29 C.F.R. § 825.220 (c) even though neither subsection (a) nor (b) of 29 U.S.C. § 2615 refers specifically to retaliatory discharge for receiving FMLA leave).
To establish a prima facie case for retaliatory discharge under the FMLA, an employee must establish that he or she was (1) entitled to FMLA leave, (2) adversely affected by an employment decision, and (3) that a causal connection existed between the protected activity and the adverse employment action. Hodgens v. General Dynamics Corp., 144 F.3d 151, 161 (1st Cir. 1998); Morgan v. Hilti, Inc., 108 F.3d 1319, 1325 (10th Cir. 1997); Findlay v. PHE, Inc., 1999 WL 1939245, at *3 (M.D.N.C. Apr. 16, 1999). Courts have employed the familiar McDonnell Douglas burden-shifting framework in determining indirect proof of FMLA retaliation because the employer's intent in discharging the employee is relevant to the analysis. King v. Preferred Tech. Group, 166 F.3d 887, 891-92 (7th Cir. 1999); Hodgens, 144 F.3d at 160; Findlay, 1999 WL 1939245, at *3; see Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998) (stating that the framework for Title VII retaliation claims applies to FMLA retaliation claims).
In the light most favorable to Plaintiff, she has alleged facts sufficient to establish an FMLA retaliatory discharge claim. A plaintiff need not establish the substantive elements of a claim in the complaint to survive a motion to dismiss. Barbee v. Coble, 208 F.R.D. 549, 551 (M.D.N.C. 2002). Rather, a claim is pled sufficiently when the defendant has fair notice of the nature of the claim. Id. Here, Plaintiff has pled that she was employed by Owens-Illinois; she provided a doctor's note about her medical condition; she was granted FMLA leave by Mr. Escolas on behalf of Owens-Illinois; she received a written reprimand upon her return from FMLA leave about her absence; and when she was discharged, the written reprimand was cited as evidence of the company's problem with her absenteeism.
It is unclear from Plaintiff's amended complaint which category set out in section 2612 qualifies Plaintiff for FMLA protection (i.e., Plaintiff references her "difficult pregnancy" but she also asserts an ADA claim and references an "illness" sevaral times in her amended complaint). Defendants do not dispute that Plaintiff was entitled to FMLA protection (the first element of Plaintiff's prima facie case), but regardless, detailed fact pleading in employment discrimination suits is not required to survive a Rule 12(b)(6) motion to dismiss. Swierkiewicz v. Soreman, 534 U.S. 506, 515, 122 S.Ct. 992, 999 (2002); see Johnson v. Rinaldi, 2001 WL 677306, at *3 (M.D.N.C. Apr. 13, 2001). In the light most favorable to Plaintiff, she has pled a FMLA retaliatory discharge claim sufficiently to provide Defendants with fair notice of the nature of her claim. See Findlay, 1999 WL 1939245, at *4.
Plaintiff's FMLA retaliatory discharge claim cannot, however, survive a motion to dismiss with regard to all Defendants. The language of 29 U.S.C. § 2615 (a) applies specifically to any employer in prohibiting interference or denial of an employee's exercise of FMLA rights, or the discharge of an employee "for opposing any practice made unlawful by this subchapter." There is no reference to the agents of any employer, or to any person. Under 29 C.F.R. § 825.220 (c), the regulation prohibiting retaliatory discharge of an employee for taking FMLA leave, the language refers to an employer. Therefore, because neither statute nor regulation relevant to Plaintiff's claim includes agents or managing employees in their prohibitions, Plaintiff's FMLA retaliatory discharge claim fails against all individual Defendants as a matter of law; their motions to dismiss will be granted. In contrast, Defendant Owens-Illinois' motion to dismiss Plaintiff's FMLA retaliatory discharge claim will be denied.
Subsection (b) of 29 U.S.C. § 2615 is broader in scope than subsection (a); any person (as opposed to any employer) is prohibited from discharging or discriminating against an employee for filing a charge, giving information in connection with a FMLA right, or giving testimony about a FMLA right. In the case at bar, however, the alleged retaliatory discharge does not fit into any of the three listed categories under 29 U.S.C. § 2615 (b).
3. The Fair Labor Standards Act
In her amended complaint, Plaintiff identifies the Fair Labor Standards Act as the source of relief for payment irregularities stemming from Owens-Illinois' change of the overtime payment policy. Plaintiff claims that the overtime policy change (noticed to employees one day before its effect) resulted in a "reduction" in her pay because she was no longer eligible for overtime benefits. (Am. Compl. ¶ 21 and 6.) Plaintiff continued to work "through lunch, after hours and weekends" with no overtime pay. (Id. ¶ 23.) Defendants answer that Plaintiff was exempt from the overtime provisions of the Fair Labor Standards Act, 29 U.S.C. § 207 (a)(1).
The FLSA mandates that covered employees receive overtime compensation. 29 U.S.C. § 207 (a); Citicorp Indus. Credit, Inc. v. Brock, 483 U.S. 27, 32, 107 S.Ct. 2694, 2698 (1987) Covered employees must be paid overtime for all time worked over 40 hours during each work week at a rate of one and one-half times their regular rate of pay. 29 U.S.C. § 207 (a). Certain employees are exempt from the overtime provisions set out in section 207. According to 29 U.S.C. § 213 (a)(1), employees working in an executive, administrative, or professional capacity are not subject to the overtime provisions of section 207. "Administrative" duties have been interpreted as "[t]he performance of office or nonmanual work directly related to management policies or general business operations of [an] employer or [an] employer's customers." 29 C.F.R. § 541.2.
When Plaintiff's factual allegations are taken as true, she was employed as a customer service representative and requested clarification from Owens-Illinois as to whether this job was considered "administrative" for purposes of the overtime exemption. There is no dispute that Plaintiff was employed in a customer service representative position at Owens-Illinois. What is disputed is whether this job is included under the umbrella of administrative so as to be exempt from the overtime provisions of FLSA.
The supreme Court has held that the employer has the burden of proving that an employee falls within an exemption of the FLSA's overtime provisions. Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 2229 (1974). This burden is a high one; "[t]he criteria provided by regulations are absolute and the employer must prove that any particular employee meets every requirement before the employee will be deprived of the protection of the Act." Mitchell v. Williams, 420 F.2d 67, 69 (8th Cir. 1969)
Because Defendants have the burden of proving Plaintiff's inclusion in the administrative exemption to the FLSA's overtime provisions, the court will deny the motion to dismiss as to Defendant Owens-Illinois. When the facts are viewed in the light most favorable to Plaintiff, she is covered by the FLSA and has stated a claim for a violation of the FLSA's overtime policy. Owens-Illinois will have an opportunity to show affirmatively that Plaintiff's job duties exempt her from overtime provisions under the FLSA at a later stage in this litigation. For the same reasons as the FMLA retaliatory discharge claim, the motion to dismiss will be granted as to the individual Defendants.
Title 29 of United States Code Section 207(a) refers to "employer" and not an employer's "agents," "managing employees," or "supervising employees."
4. Wrongful Discharge
Plaintiff claims that she was wrongfully discharged because of a mixed motive. As part of this mixed motive, Plaintiff alleges in her amended complaint that Defendants wrongfully discharged her because of her disability. Although the ADA protects qualified individuals from discrimination based on disability, and Plaintiff alleged an ADA violation in her complaint, she cannot recover under this statute because of her untimely filing. Therefore, Plaintiff's claim for wrongful discharge must be based on an alternative remedy.
When liberally construed, Plaintiff's wrongful discharge claim invokes North Carolina's Equal Employment Protection Act ("NCEEPA"); this act articulates a public policy against disability discrimination in employment. See N.C. Gen. Stat. § 143-422.1, et seq. The act recognizes a public policy exception to the general rule that an employee in North Carolina may be discharged without cause, regardless of whether the reason is rational. Kurtzman v. Applied Analytical Indus., Inc., 347 N.C. 329, 331, 493 S.E.2d 420, 422 (1997) (stating the employment-at-will doctrine). As a public policy exception to this general rule, NCEEPA does not create a private right of action; instead, North Carolina federal and state courts have applied the statute to common law wrongful discharge claims. Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000); Iturbe v. Wandel Golterman Techs., Inc., 774 F. Supp. 959, 963 (M.D.N.C. 1991); Helmstetler v. Borden Chem., Inc., 2002 WL 1602432, at *1 (M.D.N.C. June 13, 2002);Cline v. Dahle, 2002 WL 857552, at *7 (N.C.App. May 7, 2002). NCEEPA states, in pertinent part, that "[i]t is the public policy of this State to protect and safeguard the right and opportunity of all persons to . . . hold employment without discrimination . . . on account of . . . handicap by employers which regularly employ 15 or more employees." N.C. Gen. Stat. § 143-422.2.
Ijames v. Murdock, 2003 WL 1533448, at *6 (M.D.N.C. Mar. 21, 2003) (invoking North Carolina's Equal Employment Protection Act ("NCEEPA") in interpreting a pro se Plaintiff's wrongful discharge claim); Hicks v. Robeson County, 1998 WL 1669080, at *2 (E.D.N.C. Oct. 15, 1998) (interpreting Plaintiff's complaint as alleging wrongful discharge in violation of NCEEPA's policy against racial discrimination).
Under NCEEPA, an action for wrongful discharge can only be asserted against the employer and not against a supervisor in his or her individual capacity. Cox v. Indian Head Indus., Inc., 187 F.R.D. 531, 536 (W.D.N.C. 1999); Chung v. BNR, Inc./Northern Telecom. Inc., 16 F. Supp.2d 632, 634 (E.D.N.C. 1997). Unlike Title VII, but similar to FLMA and FLSA, NCEEPA does not apply to an employer's agents; rather, employers are the only covered entity. Chung, 16 F. Supp.2d at 634. Thus, Plaintiff's wrongful discharge claim pursuant to NCEEPA does not survive a motion to dismiss as to Defendants Leineweber, Escolas, Stebbins, and Shank.
As to Defendant Owens-Illinois, however, Plaintiff's wrongful discharge claim pursuant to NCEEPA survives a motion to dismiss. At this early stage, a plaintiff need only provide the defendant with fair notice of the nature of the claim and the grounds upon which the claim rests.Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 103 (1957). The liberal discovery rules and summary judgment motions are the appropriate tools to define disputed facts and to challenge the substance of claims.Swierkiewicz v. Soreman, 534 U.S. 506, 512, 122 S.Ct. 992, 998 (2002)
Although the parties dispute the facts surrounding the wrongful discharge claim, Plaintiff specifically alleges the claim in her EEOC charge and in the amended complaint. Plaintiff's amended complaint provides relevant dates and names of persons involved, and other details surrounding her alleged wrongful discharge. See Ijames, 2003 WL 1533448, at *7 (denying a motion to dismiss a wrongful discharge claim under NCEEPA when plaintiff's EEOC charge and complaint stated that plaintiff was discharged). When liberally construed, Plaintiff, acting pro se, alleges that she was discharged in violation of North Carolina's public policy against disability discrimination as set out in NCEEPA. N.C. Gen. Stat. § 143-422.2. Therefore, Plaintiff has sufficiently stated a wrongful discharge claim under NCEEPA to survive a motion to dismiss as to Owens-Illinois. Jackson v. Blue Dolphin Communications of North Carolina, L.L.C., 226 F. Supp.2d 785, 792 (W.D.N.C. 2002) (holding that Plaintiff properly pled a wrongful discharge claim in violation of public policy against race discrimination pursuant to NCEEPA by simply alleging that she was discharged based on race).
Although not raised by either party, an additional issue might threaten the viability of Plaintiff's wrongful discharge claim against Owens-Illinois pursuant to NCEEPA. Some courts have held that the existence of a Title VII remedy precludes a cause of action for the same conduct under a state law wrongful discharge claim. See, e.g., Leach v. Northern Telecom Inc., 141 F.R.D. 420, 426-27 (E.D.N.C. 1991); Frazier v. First Union Nat'l Bank, 747 F. Supp. 1540, 1553 (W.D.N.C. 1990). However, since the North Carolina Supreme Court's ruling in Amos v. Oakdale Knitting Co., courts have held that a Title VII claim does not preclude a wrongful discharge claim pursuant to NCEEPA. See, e.g., Hughes v. Bedsole, 48 F.3d 1376, 1383 (4th Cir. 1995); Atkins v. USF Dugan, Inc., 106 F. Supp.2d 799, 810 (M.D.N.C. 1999); Philips v. J.P. Stevens Co., Inc., 827 F. Supp. 349, 352-53 (M.D.N.C. 1993); Hicks v. Robeson County, 1998 WL 1669080, at *5 (E.D.N.C. Oct. 15, 1998). Although this issue is not settled completely, the court agrees with the line of cases since Amos allowing plaintiffs to pursue both Title VII and NCEEPA remedies simultaneously absent federal preemption. Especially in cases such as the one at bar, in which the plaintiff's Title VII claim has been extinguished, a plaintiff would not have a legal remedy if she were precluded from pursuing a NCEEPA claim. Thus, Defendants' motion to dismiss Plaintiff's wrongful discharge claim will be denied as to Owens-Illinois because Plaintiff has stated a claim for legal relief under NCEEPA.
331 N.C. 348, 416 S.E.2d 166 (1992). In Amos, the court held that the availability of alternative federal remedies does not prevent a plaintiff from pursuing a wrongful discharge claim pursuant to NCEEPA "[a]bsent federal preemption or the intent of [the] legislature to supplant the common law with exclusive statutory remedies. . . ." Amos, 331 N.C. at 360, 416 S.E.2d at 173.
In the light most favorable to Plaintiff, her wrongful discharge claim also can be construed as one for wrongful constructive discharge. There is no factual dispute that Plaintiff did in fact resign; the dispute is whether Plaintiff resigned under duress. Constructive discharge is employed in Title VII cases in lieu of showing an adverse employment action as part of the prima facie case of discrimination. Hazel v. Medical Action Indus., Inc., 216 F. Supp.2d 541, 550 (W.D.N.C. 2002). North Carolina courts have not recognized a common law claim or independent employment tort for constructive discharge. Id.; Helmstetler v. Borden Chem., Inc., 2002 WL 1602432, at *2 (M.D.N.C. June 13, 2002);Graham v. Hardee's Food Sys., Inc., 121 N.C. App. 382, 385, 465 S.E.2d 558, 560 (1996). Because Plaintiff's Title VII claim will be dismissed, Plaintiff's wrongful constructive discharge claim requires an independent employment claim to survive a motion to dismiss. Plaintiff's claim for wrongful constructive discharge under NCEEPA fails as a matter of law because North Carolina courts do not recognize an independent employment tort for wrongful constructive discharge. Therefore, Plaintiff's only surviving wrongful discharge claim is against Owens-Illinois pursuant to NCEEPA based on disability discrimination.
5. Hostile Work Environment
Because Plaintiff's Title VII claim has been dismissed as untimely filed, the court will not consider Plaintiff's hostile work environment claim under Title VII. Even if Plaintiff's complaint is construed as alleging a hostile work environment claim pursuant to NCEEPA, Plaintiff's claim cannot survive a motion to dismiss. NCEEPA's public policy in preventing employment discrimination does not embrace allegations of harassment. Jones v. Duke Energy Corp., 2002 WL 1821979 at *J (4th Cir. Aug. 9, 2002); Dewitt v. Mecklenburg County, 73 F. Supp.2d 589, 604 (W.D.N.C. 1999); Chung v. BNR, Inc./Northern Telecom, Inc., 16 F. Supp.2d 632, 634-35 (E.D.N.C. 1997). Therefore, Plaintiff's hostile work environment claim fails as a matter of law against all Defendants.
6. Slander
Plaintiff's last claim is that her reputation was harmed when several of her co-workers made disparaging remarks (concerning her "illness" and alleged sexual relations with her supervisors) and Defendants did nothing to correct the behavior after notification of the remarks. Plaintiff's amended complaint alleges these remarks and the identity of the declarants with specificity. Notably, Plaintiff alleges that her co-workers made disparaging remarks; she does not allege that the managing employees who are parties to this action, made any harassing remarks. Plaintiff seems to allege that Defendants are vicariously liable for her co-workers' disparaging remarks.
Plaintiff does not provide the exact dates of publication of the allegedly slanderous remarks. She does indicate, however, that "[t]he pattern of behavior continued to the date of discharge on February 1, 2001." (Am. Compl. at 7.) In North Carolina, the statute of limitations for a slander claim is one year. N.C. Gen. Stat. § 1-54(3). This one-year limitation period begins to run "at the date of the publication of the defamatory words, regardless of the fact that plaintiff may discover the identity of the author only at a later date." Price v. J.C. Penney Co., Inc., 26 N.C. App. 249, 252, 216 S.E.2d 154, 156 (1975). When the facts are viewed in the light most favorable to Plaintiff, the slanderous remarks continued until February 1, 2001. Because Plaintiff filed her initial complaint on December 27, 2001, she is within the one-year statute of limitations. Through discovery, however, it will be necessary to provide more specific dates as to the publication of the defamatory words to determine whether Defendants have a viable statute of limitations defense.
For the doctrine of vicarious liability to apply to this case, Plaintiff must show that at the time the derogatory statements were made, her co-workers were "acting in furtherance of the principal's business and for the purpose of accomplishing the duties of . . . employment." Troxler v. Charter Mandala Ctr., Inc., 89 N.C. App. 268, 271, 365 S.E.2d 665, 668 (1988). The principal is not liable if the employee's statements are made to further a "malicious purpose" outside the scope of employment. Id., 89 N.C. App. at 272, 365 S.E.2d at 669.
In the light most favorable to Plaintiff, there is nothing in the amended complaint to suggest that any derogatory comments were made in furtherance of Owens-Illinois' interests or its employees' obligations to the company. See Equal Employment Opportunity Commission v. Matthews, 1995 WL 529197, at *4 (M.D.N.C. June 26, 1995). However, upon further discovery the parties may uncover evidence that Defendants had knowledge of the statements and/or ratified them. At this juncture, assuming that Plaintiff's co-workers made slanderous remarks about her, the court cannot determine whether Plaintiff's co-workers committed such a tort "solely to carry out a personal vendetta," or in furtherance of the employer's interests. See Hoffman v. United States, 1999 WL 417830, at *3 (4th Cir. June 23, 1999). Therefore, the court will deny Defendants' motion to dismiss the slander claim as to all Defendants.
For the reasons set forth above, IT IS ORDERED that
Defendants' Motion to Dismiss [6] is granted in part, and denied in part:
Defendants' Motion to Dismiss the Title VII, Americans with Disabilities Act, and hostile work environment claims is granted as to all Defendants;
Defendants' Motion to Dismiss the wrongful discharge, Family Medical Leave Act, and Fair Labor Standards Act claims is denied as to Defendant Owens-Illinois;
Defendants' Motion to Dismiss the slander claim is denied as to all Defendants.