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limiting such claims to actual terminations only, and stating that "[f]ederal courts are not the advocates for expansion of state law"
Summary of this case from Riepe v. Sarstedt, Inc.Opinion
1:01CV43-T
February 5, 2002
MEMORANDUM AND RECOMMENDATION
THIS MATTER is before the court upon defendants' Motion for Summary Judgment and plaintiffs' Motion to Dismiss and second Motion to Amend, which were both filed in response to defendants' Motion for Summary Judgment. At the written request of plaintiffs, which was consented to by defendants, oral arguments were heard on January 29, 2002, in Asheville. For the reasons discussed in defendants' memoranda and below, the undersigned must recommend that summary judgment be granted in favor of defendants and against plaintiffs, inasmuch as all of plaintiffs' claims are preempted by the National Labor Relations Act.
FINDINGS AND CONCLUSIONS
I. Background
A. Factual Background
Plaintiffs supported the formation of a union at defendant Dana Corporation's Morganton, North Carolina, plant. In November 1997, the International Brotherhood of Teamsters ("IBT") conducted an election, which resulted in the rejection of the proposed union by plant workers.
Plaintiffs are all former and current employees of Dana Corporation at its Morganton plant, which manufactures truck and off-road tractor parts. The individual defendants are current or former supervisors or members of management at that plant. Plaintiffs allege that they were involved in the IBT's organizing campaign and that defendants discriminated and retaliated against them in the years that followed based on their pro-union activities. This alleged discriminatory and retaliatory conduct took the form of remarks, close supervision, disciplinary action, and in some cases, terminations. For the purposes of the pending Motion for Summary Judgment only, the undersigned has accepted as true all such allegations.
B. Plaintiffs' Claims
In bringing this action, plaintiffs, who are or were hourly employees of Dana, contend that defendants retaliated against them in the years following the failed 1997 election based on their efforts to unionize the Morganton plant. The seven plaintiffs have asserted three causes of action against defendants Dana World Trade Corporation, Dana Corporation, and thirteen supervisory employees of Dana Corporation:
(1) violation of North Carolina public policy (which plaintiffs contend is found in North Carolina's right-to-work statute at Chapters 95-78, et seq., of the North Carolina General Statutes) by retaliating against plaintiffs based on their union activities;
(2) public-policy "violation of the United States and North Carolina Constitutions"; and
(3) intentional infliction of emotional distress.
II. Procedural History
In addition to this civil action, plaintiffs filed six charges of unfair labor practices with the National Labor Relations Board ("NLRB"), all of which were either withdrawn by plaintiffs or dismissed by the NLRB for lack of probable cause. It is undisputed that all those administrative claims were based on the same facts which underlie this action.
Plaintiffs originally brought this action in the United States District Court for the Northern District of Ohio, Western Division. On February 8, 2001, upon motion of defendants, the district court in Ohio transferred the matter to this court. That court found that it lacked jurisdiction over the individual defendants, all of whom are North Carolina residents, and it further found no reason to maintain the action in that court, inasmuch as all events complained of occurred in North Carolina. On March 1, 2001, the action was received from the transferor district and filed in this court; defendants answered on March 12, 2001; the certification of initial attorney's conference was filed on April 27, 2001; and this court conducted an initial pretrial conference on May 9, 2001. A dispositive motions filing deadline was set for November 30, 2001, and trial before the district court was set to commence during the first civil trial term beginning on or after March 4, 2002. Near the close of discovery, plaintiffs were permitted to amend their pleading.
After discovery closed and before the expiration of the time for filing dispositive motions, defendants filed the instant Motion for Summary Judgment. On December 17, 2001, plaintiffs filed their Motion to Dismiss With Leave of Court, which was filed more than two weeks out of time. In that motion, plaintiffs apparently conceded that their second and third causes of action were without merit, and they attempted to "voluntarily dismiss" those claims without consent of opposing counsel. See Fed.R.Civ.P. 41(a). Further, plaintiffs sought to dismiss their first claim without prejudice and to have the case remanded to the Superior Court of the North Carolina General Court of Justice, Burke County — relief beyond possibility, inasmuch as this action was never removed from that court.
Finally, plaintiffs included a second motion to amend complaint "to conform to the evidence" within the body of their "Response to Defendant's [sic] Motion for Summary Judgment." See Docket Entry 41, at 1. In that response, plaintiffs also sought remand of their third cause of action, because that claim raised "new issues [of] State law . . . ." Id., at 2.
Counsel for plaintiffs is advised that the only proper way to present a motion to this court, other than in open court, is through the filing of a separate motion supported by a memorandum of law, all in accordance with the Federal Rules of Civil Procedure and the Local Rules of this court. Not only does such procedure allow for the tracking of motions by this court, it forces moving counsel to review the very basis of the motion to discover whether it has any support in law or logic. This court is certain that had such procedure been followed in this case, counsel would have realized that a case cannot be remanded to a court from which it did not originate.
III. Standard
On a motion for summary judgment, the moving party has the burden of production to show that there are no genuine issues for trial. Upon the moving party's meeting that burden, the nonmoving party has the burden of persuasion to establish that there is a genuine issue for trial.
When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving [sic] party, there is no "genuine issue for trial."Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citations omitted; emphasis in the original) (quoting Fed.R.Civ.P. 56). There must be more than just a factual dispute; the fact in question must be material and readily identifiable by the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
By reviewing substantive law, the court may determine what matters constitute material facts. Id. "Only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment" Id. at 248. A dispute about a material fact is "genuine" only if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Id.
[T]he court is obliged to credit the factual asseverations contained in the material before it which favor the party resisting summary judgment and to draw inferences favorable to that party if the inferences are reasonable (however improbable they may seem).Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir. 1980). Affidavits filed in support of defendants' Motion for Summary Judgment are to be used to determine whether issues of fact exist, not to decide the issues themselves. United States ex rel. Jones v. Rundle, 453 F.2d 147 (3d Cir. 1971). When resolution of issues of fact depends upon a determination of credibility, summary judgment is improper. Davis v. Zahradnick, 600 F.2d 458 (4th Cir. 1979). In this case, the undersigned has considered all of plaintiffs' factual allegations as true for the limited purpose of making a recommendation as to disposition of defendants' Motion for Summary Judgment.
IV. Issues Presented
A. Preemption
In moving for summary judgment, defendants' primary argument is that plaintiffs' claims, all of which purportedly arise under North Carolina law, are preempted by the National Labor Relations Act ("NLRA"). As will be discussed below, the alleged underlying acts which form the foundation of all three causes of action fall within the exclusive jurisdiction of the NLRA, resulting in preemption of this action in its entirety.
The NLRA, codified as 29, United States Code, Sections 151, et seq., vests the NLRB with exclusive jurisdiction over questions of unfair labor practices as defined in the NLRA. 29 U.S.C. § 159-160. The Act provides a uniform measure by which labor disputes are tested. Garner v. Teamsters Local Union No. 776, 346 U.S. 485 (1953).
The NLRA, as amended by the Taft-Hartley Act, protects certain types of employee conduct and specifically prohibits employer conduct that infringes upon those employee rights. Under the doctrine of preemption, if conduct is already protected or even arguably prohibited by federal law, then state law must yield to federal law. Wisconsin Dept. of Industry v. Gould, Inc., 475 U.S. 282, 286 (1986). Even where, as here, state law is consistent with federal law, federal law preempts state law to avoid the "danger of conflict" between state and federal interpretations. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 244 (1959). Without question, Section 158(a)(1) makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees" in the exercise of their right to organize, and Section 158(a)(3) makes it an unfair labor practice for an employer to "[i]nterfere with the formation . . . of any labor organization . . .; [or] by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . . ." 29 U.S.C. § 158 (a)(3).
Where the wrong complained of is on-the-job retaliation for union support, it is clear that allowing the maintenance of common-law claims, in lieu of or in addition to the federal statutory claim, would undermine the continued vitality of the NLRA and the comprehensive administrative process created by Congress to protect workers. While the case law indicates that not all state-law torts are foreclosed by the NLRA, it appears that employer activity that could form the basis of a petition before the NLRB and a state-law claim is preempted.
In discussing the difference between preempted claims and those that are not preempted under the NLRA, the Supreme Court held in Local 926, IUOE v. Jones, 460 U.S. 669 (1983), as follows:
Permitting the trespass action [in Sears, Roebuck Co. v. Carpenters, 436 U.S. 180 (1978)] to go forward accordingly created "no realistic risk of interference with the Labor Board's primary jurisdiction to enforce the statutory prohibition against unfair labor practices." Id. The same cannot be said here. The Regional Director concluded that the Union had in no way been responsible for Jones's discharge. That same issue of causation would have been presented for decision had Jones's case come before the Board, just as the issue would recurringly be at the core of § 8(b)(1)(B) cases. Despite the Regional Director's determination, and the Board's undoubted jurisdiction to decide the issue had a complaint issued, Jones sought to relitigate the question in the state courts. The risk of interference with the Board's jurisdiction is thus obvious and substantial.Id., at 683. In determining whether the NLRA preempts state law, theJones Court further held, as follows:
Although the "Garmon guidelines [are not to be applied] in a literal, mechanical fashion" . . . if the conduct at issue is arguably prohibited or protected otherwise applicable state law and procedures are ordinarily preempted. When, however, the conduct at issue is only a peripheral concern of the Act or touches on interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, it could not be inferred that Congress intended to deprive the state of the power to act, we refuse to invalidate state regulation or sanction of the conduct. The question of whether regulation should be allowed because of the deeply-rooted nature of the local interest involves a sensitive balancing of any harm to the regulatory scheme established by Congress, either in terms of negating the Board's exclusive jurisdiction or in terms of conflicting substantive rules, and the importance of the asserted cause of action to the state as a protection to its citizens.Id. (citations and footnote omitted). The conduct of which plaintiffs complain — alleged on-the-job, employment-related retaliation for labor-union activity — is not a "peripheral concern of the Act,"id., but appears to be at the core of the NLRA.
That state-law claims would provide broader remedies than the back pay or reinstatement allowed under the NLRA does not cut in favor of plaintiffs; rather, the varying availability of front-pay, compensatory, and punitive damages under state laws form a portion of the basis for federal preemption under the NLRA. In Wisconsin Dept. of Industry v. Gould, Inc., 475 U.S. 282 (1986), the Supreme Court held, as follows:
[T]he Garmon rule prevents States not only from setting forth standards of conduct inconsistent with the substantive requirements of the NLRA, but also from providing their own regulatory or judicial remedies for conduct prohibited or arguably prohibited by the Act.Id., at 286.
While the Court of Appeals for the Fourth Circuit has yet to address whether an employee may maintain a common-law action against an employer under the provision at issue here of North Carolina's right-to-work statute, the appellate court has held that the NLRA and the Labor Management Relations Act ("LMRA") are preemptive of South Carolina's right-to-work statute. Friendly Society of Engravers v. Calico Engraving Co., 238 F.2d 521 (4th Cir. 1956), cert. denied, 353 U.S. 935 (1957). InFriendly, the union contended that an employer had retaliated against pro-union employees, id., at 522, thereby violating South Carolina's right-to-work statute. The Friendly court held, as follows:
[T]o allow actions at law to be maintained with respect to unfair labor practices, which do not give rise to actions at common law, would not only burden the courts with a flood of unnecessary litigation, but would hamper the National Labor Relations Board in the performance of the duties confided to it and would breed endless confusion in labor litigation. Nothing of the sort was intended by Congress; and for the courts to sanction such litigation would retard and not advance the purposes for which the NLRA came into being.Id., at 534. See also Bukovac v. Daniel Construction Co., 469 F. Supp. 176 (W.D. Va. 1979) (claim under Virginia's right-to-work statute preempted).
It is clear that plaintiffs' public-policy claims found in their first and second causes of action are, necessarily, dependent upon the proof of wrongdoing that is made sanctionable by the NLRA. As to the third cause of action for the common-law tort of intentional infliction of emotional distress, the "extreme-and-outrageous" element requires proof that defendants took adverse employment action based on plaintiffs' pro-union activities. The Court of Appeals for the Fourth Circuit has earlier held that claims of intentional infliction of emotional distress are preempted by the NLRA. Richardson v. Kruchko Fries, 966 F.2d 153 (4th Cir. 1992) ("a state law claim is preempted `if the conduct relied on to prove a crucial element in the state action is conduct that is arguably covered by the NLRA.'" Id., at 156 (quoting Lumber Prod. Indus. Workers Local #1054 v. West Coast Indus. Relations Ass'n, 775 F.2d 1042, 1049 (9th Cir. 1985).
The undersigned is compelled to recommend that all of plaintiffs' claims be dismissed with prejudice as preempted and that judgment be entered in favor of all defendants and against all plaintiffs providing that plaintiffs have and take nothing of these defendants.
B. Additional Grounds for Summary Judgment
1. No Cause of Action Against Individual Supervisors
Rather than simply sue their employer, plaintiffs also joined supervisors and other management personnel. This district has long held that "North Carolina does not recognize a claim against a supervisor in an individual capacity for wrongful discharge in violation of public policy." Cox v. Indian Head Industries, Inc., 187 F.R.D. 531, 536 (W.D.N.C. 1999). It is undisputed that none of the individually named defendants are the employer of any of the plaintiffs; therefore, these defendants are, in addition to the reasons discussed above, entitled to summary judgment as a matter of law.
2. First Cause of Action: Failure to State a Claim Under Public-Policy Exception
Plaintiffs' claims that they suffered harassment and retaliation in violation of public policy are also not actionable. Plaintiffs Shade, Johnson and Lowe were not discharged from their employment. A public-policy claim for employment action less than termination, based upon the right-to-work statute, can have no basis in North Carolina law.See generally Hughes v. Bedsole, 48 F.3d 1376, 1383 (4th Cir. 1995);Simple v. Apple Computer, Inc., 1993 WL 723478 (W.D.N.C. 1993) (Mullen, J.). Federal courts are not the advocates for expansion of state law.Burris Chemical, Inc. v. USX Corp., 10 F.3d 243, 247 (4th Cir. 1993). This is especially true where, as discussed above, plaintiffs' theory of the case is designed to circumvent the appropriate and exclusive forum, which provides a remedy, albeit limited. The Court of Appeals of North Carolina has limited public-policy claims to terminations only. Gravitte v. Mitsubishi Semiconductor America, Inc., 428 S.E.2d 254, 258 (1993) ("To proceed under this exception, plaintiff must allege facts which indicate that she was in fact discharged."). To hold otherwise would be to make courts, both federal and state, the ultimate "human resources directors" for employees who believed their on-the-job discipline, short of termination, was not supported by good cause. See Coman v. Thomas Manufacturing Co., Inc., 381 S.E.2d 445, 449 (1989). The employment-at-will doctrine would have to be rewritten to provide for "employment at the will of the court."
3. Second Cause of Action: Failure to State a Cause of Action Against a Private Employer for Violation of Constitutional Protections
Plaintiffs have attempted to allege a cause of action under the United States and North Carolina constitutions. Absent state action, claims against persons sued in their individual capacities for monetary damages based on alleged violations of constitutional protections will not stand under either the United States or the North Carolina Constitution.
As a matter of fundamental jurisprudence the Constitution itself does not recognize or create rights which may be asserted against individuals. . . . The Constitution is intended to protect our rights as individuals from our actions as the government. The Constitution is not intended to protect our rights vis-a-vis other individuals.Corum v. University of North Carolina, 330 N.C. 761, 787 (1992), reh'g denied, 418 S.E.2d 664, cert. denied, 506 U.S. 985. Neither the United States nor North Carolina recognizes a public-policy-based cause of action for alleged constitutional violations by private parties. Johnson v. Mayo Yarns, Inc., 484 S.E.2d 840, rev. denied, 488 S.E.2d 802 (1997)(first-amendment rights and corresponding state constitutional rights do not extend to the private workplace). Plaintiffs' second cause of action, based on an unfounded public-policy exception that would be contrary to well-settled federal and state law, should also be dismissed for this reason.
4. Third Cause of Action: Intentional Infliction of Emotional Distress
In addition to preemption, plaintiffs have failed to come forward with sufficient proof to proceed further on their claims of intentional infliction of emotional distress. The essential elements of such common-law claim include the following:
(1) extreme and outrageous conduct by the defendant;
(2) which is intended to and does in fact cause;
(3) severe emotional distress.
Waddle v. Sparks, 331 N.C. 73, 82 (1992). Plaintiffs' admissions that they did not suffer severe emotional distress are fatal to their claims.
To show severe emotional distress, a claimant must do more than simply state that he has suffered severe emotional distress; there must be evidence that he suffered from an "emotional or mental disorder," such as, for example, neurosis, psychosis, chronic depression, phobia, or any other type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so.May v. City of Durham, 525 S.E.2d 223, 230 (N.C.App. 2000) (citation omitted). Plaintiffs state in their depositions that they have not even seen mental-health professionals for treatment or diagnosis surrounding any of the allegations in this lawsuit, and none have been diagnosed as suffering any emotional or mental disorder or distress.
5. Other Reasons for Summary Judgment
Defendants have also submitted a number of additional reasons why the claims of each plaintiff are not viable and why each defendant should be dismissed. At this point, the undersigned believes that a more-than-adequate basis has been shown for the complete dismissal of the entire action and will not further discuss defendants' myriad additional reasons that would justify dismissal. Instead, those arguments are incorporated herein by reference and commended to the district court.
C. Plaintiffs' Motions
In response to defendants' Motion for Summary Judgment, plaintiffs filed out of time a Motion to Dismiss. Not only was that motion filed well outside the time allowed by the Pretrial Order, it seeks relief which finds no basis in the record before the court, which would include remand to a court in which this action was not previously filed — a legal impossibility under 28, United States Code, Section 1447. Plaintiffs' untimely Motion to Dismiss is merely a thinly-veiled attempt to avoid summary judgment and have this matter heard in a state forum, which is inexplicable, inasmuch as plaintiffs chose to file this action in a federal forum, albeit originally in the Northern District of Ohio. The undersigned will recommend that the Motion to Dismiss be denied as both untimely and unavailing.
As to plaintiffs' second motion to amend, which was improperly included in their response to defendants' Motion for Summary Judgment, the only reason plaintiffs provide for a second amendment is "to conform to the evidence." Docket Entry 41, at 1. While parties are routinely granted leave to conform their claims to the evidence presented, it is clear to the undersigned that the only claims which could be presented based on the evidence proffered are claims before the NLRB.
Rule 15(a) of the Federal Rules of Civil Procedure provides that when a party seeks leave to amend a complaint "leave shall be freely given when justice so requires." Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S.Ct. 227 (1962), mandates a liberal reading of the rule's direction for "free" allowance: motions to amend are to be granted in the absence of a "declared reason" "such as undue delay, bad faith or dilatory motive. . . , repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party . . . , futility of amendment, etc." In Davis v. Piper Aircraft Corp., 615 F.2d 606, 613 (4th Cir. 1980), we noted that under Foman a lack of prejudice would alone ordinarily warrant granting leave to amend and that mere delay absent any resulting prejudice or evidence of dilatoriness was not sufficient justification for denial.Ward Electronics Service, Inc. v. First Commercial Bank, 819 F.2d 496, 497 (4th Cir. 1987). Without doubt, the proposed amendment would be an exercise in futility, which, although a common thread in this action, requires denial of such request.
D. Other Issues
As is evident from the pleadings, as well as from counsel for plaintiffs' oral arguments, plaintiffs contend (and will likely argue through objections) that this action should be allowed to move forward because the NLRB rejected their claims under Section 10(b) based on the lack of any "ongoing" union activity, leaving plaintiffs with no remedy. Plaintiffs' argument finds no basis in law or, for that matter, fact.
Foremost, the NLRB is empowered by the NLRA to "prevent any person from engaging in any unfair labor practice affecting commerce." Second, Section 10(b) is the statute of limitations for filing an unfair-labor-practice charge, which is six months from the adverse action. Review of the NLRB decisions as to the charges of plaintiffs Roger Lowe and Kevin Sesco reveals that those charges were rejected for "insufficient evidence of a violation." It is clear that plaintiffs' argument that the NLRA does not provide these plaintiffs with a remedy because of the lack of an ongoing organizing effort at the plant is a red herring.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that
(1) defendants' Motion for Summary Judgment be GRANTED, that plaintiffs' claims be dismissed in their entirety with prejudice as preempted, and that JUDGMENT be entered in favor of defendants and against plaintiffs providing that plaintiffs have and take nothing of defendants;
(2) plaintiffs' Motion to Dismiss be DENIED as untimely and without substantive merit under Rule 41, Federal Rules of Civil Procedure; and
(3) plaintiffs' second Motion to Amend, improperly contained in their response, be DENIED in accordance with Rule 15, Federal Rules of Civil Procedure, as futile.
The parties are hereby advised that, pursuant to 28, United States Code, Section 636(b)(1)(C), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within ten (10) days of service of same. Failure to file objections to this Memorandum and Recommendation with the district court will preclude the parties from raising such objections on appeal. Thomas v. Am, 474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111 (1986); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208 (1984).