Carr v. United States of America et al

Filing 30

ORDER granting 21 Motion to Dismiss for Failure to State a Claim; granting 21 Motion to Dismiss for Lack of Jurisdiction; granting in part and denying in part 16 Motion to Dismiss. Signed by District Judge James C. Dever III on 10/17/2018. (Sellers, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:17-CV-167-D

DANIEL R CARR,
Plaintiff,

v.
UNITED STATES OF AMERICA,
et al.,
Defendant.

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ORDER

On February 22, 2018, Daniel R. Carr ("Carr" or plaintiff'') filed a first amended complaint
against the United States of America, Wilbur L. Ross, Jr. ("Ross"), Bernard W. Gottholm
("Gottholm"), James L. Guyton ("Guyton"), Aleta A. Hohn ("Hohn") (collectively ''the
government''), and Jardon & Howard Technologies, Inc., d/b/a JHT, Incorporated ("JHT") [D.E. 13].
Carr seeks damages under Bivens v. Six Unknown Named Agents of Federal Bureau ofNarcotics,
403 U.S. 388 (1971), from the United States, Ross, Gottholm, Guyton, and Hohn. Carr seeks
damages from JHT for wrongful discharge. On March 8, 2018, JHT moved to partially dismiss the
amended complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter
jurisdiction [D.E. 16] and filed a memorandum in support [D.E. 17]. On March 26, 2018, the
government moved to dismiss the amended complaint under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim [D.E. 21] and filed a memorandum in support [D.E. 22]. Carr
responded in opposition to both motions [D.E. 23, 24]. On April30, 2018, the government replied
[D.E. 26]. 1 As explained below, the court grants the government's motion to dismiss, and grants in

1

On June 11, 2018, the court granted Carr's motion to dismiss his tortious interference claim
against all defendants. See [D.E. 29].

part and denies in part JHT' s motion to-dismiss.

I.
From 2003 to December 8, 2014, Carr worked as a laboratory biologist at the National
Oceanic and Atmospheric Administration (''NOAA") facility on Pivers Island in Beaufort, North
Carolina. See Compl. [D.E. 13]

~

10. NOAA is a division of the United States Department of

Cmmnerce. Since 2003, NOAA has used contractors to provide some laboratory staffing at its
Pivers Island facility. Id. ~ 11. Alpha Solutions, a federal contractor working with NOAA, initially
hired Carr. Id. ~ 12. In 2007, NOAA awarded a contract to JHT to provide laboratory staffing at its
Pivers Island facility. ld.

~

13. From 2007 until December 2014, JHT employed Carr. See id.

Carr's title was "Biologist IT," and he worked as a research technician. Id.
NOAA provided an occupational safety program for all personnel working at its Pivers Island
facility. See id. ~ 19. NOAA's safety program included safety training sessions and a safety officer.
Bee id. JHT did not have its own safety program and deferred to NOAA's safety program. See id.
Carr attended the occupational safety training sessions that NOAA conducted. See id. ~ 20. As part
of the safety training sessions, NOAA directed personnel to report concerns about occupational
health and safety. See id. On September 26, 2008, Carr signed an employee acknowledgment form
that stated "[y]ou are encouraged to report any unsafe work practices or safety hazards encountered
on the job." Id.

~

16.

In June 2014, the NOAA safety officer who worked at the Pivers Isl~d facility left and was
not replaced. See id.

~

21. In December 2014, Carr learned that management decided to move a

harmful algae bloom laboratory, which was located outside of Carr's building, to a new space located
on Carr's hallway. See id.

~

22. Carr became concerned with this decision and believed.that no

safety officer would have approved the move because Carr's hallway was equipped with an AEON

2

unit, a type of ventilation system, which could quickly distribute airborne toxins from the harmful
. algae blooms through his floor. See id. ~~ 22-23. On December 4, 2014, Carr e-mailed his NOAA
I

team leader, Jennifer Potts, and informed Potts of his safety concerns regarding the harmful algae
bloom laboratory being moved to his hallway. See id.

~

25. On the same day, Potts forwarded

Carr's e-mail to the NOAA Chief ofthe Sustainable Fisheries Branch at Pivers Island and noted that
Carr's "concern for HABs [harmful algae blooms] becoming airborne is not without merit." Id.

~

27. On December 5, 2014, James Guyton, the deputy director of NOAA's laboratory at Pivers
Island, e-mailed Carr and told Carr to inform his JHT program manager about his work related
concerns. Id.

~

28. Guyton also sent a copy of that e-mail and Carr's December 4 e-mail to Ann

Skradski who was responsible for coordinating JHT's employees at the Pivers Island facility. Id. ~
29. On the same day, Skradski e-mailed Carr and wrote
I have your concerns for action. I will be communicating with NOAA to gather
additional information related to your concerns. I know safety to be of top concern
for NOAA, as it is for JHT. Once I have the appropriate information, I will be back
in touch to set up a time in which we can discuss.

Sometime between December 4, 2014, and December 8, 2014, an employee from NOAA
directed JHT to terminate Carr's employment. See id. ~ 32. 2 On December 8, 2014, Skradski told
Carr that his December 4 e-mail expressing safety concerns regarding the relocation of the harmful
algae laboratory to his floor was inappropriate and terminated his employment. Id. ~~ 37-3 8. When
Carr was terminated, he was not ''under any investigation by either JHT or NOAA regarding his

2

Carr alleges that "Gottholm, Guyton and Hohn and, as their employer under the doctrine
ofrespondeat superior, the United States ofAmerica, ordered Defendant JHT, to remove [Carr] from
his job[.]" Id. Gotthom, Guyton, and Hohn are NOAA employees and hold management positions
at NOAA's laboratory at Pivers Island. See id. ~~ 3-5.

3

personal conduct or his job performance and no adverse job actions were pending." Id.

~ 49.

The

NOAA Chief of Sustainable Fisheries Branch at Pivers Island e-mailed Hohn and told her that
I think the firing was a gross error in judgment. In fact, it was such a gross error in
judgment that I feel compelled to report this to the NOAA IG as a violation of the
Whistleblower Protection Act. Dan appears to have been fired immediately after
sending an email about safety concerns at the lab. I am no lawyer, but how this
cannot be viewed as retaliatory is beyond my reckoning. Ann [Ann Skradski- a JHT
official] herself admitted that the firing was not within JHT' s normaJ. process for
firing and it was done in reaction to the email forwarded by Jim Guyton to her.

On January 23, 2015, Carr filed a complaint with the North Carolina Department of Labor
under the North Carolina Retaliatory Employment Discrimination Act ("REDA"), N.C. Gen. Stat.
§§ 95-240, et seq., for unlawful and retaliatory discharge. Id. ~56. On October 23, 2015, the North
Carolina Department of Labor informed Carr that the federal Occupational Safety and Health
j

Administration is handling the matter. Id. ~57. The North Carolina Department of Labor did not
issue Carr a right-to-sue letter, which is a prerequisite to bringing a REDA claim. Id.

~59.

The United States Department ofLabor accepted the North Carolina Department ofLabor's
referral of Carr's claims against JHT. See id.

~

63. On February 2, 2018, the United States

Department of Labor sued JHT and Ann Skradski alleging that JHT and Skradski unlawfully
discriminated against Carr in violation of section 11 (c)(1) ofthe Occupational Safety and Health Act
("OSHA"). See Acosta v. Jardon & Howard Techs .. Inc., No. 4:18-CV-16-D, [D.E. 15] (E.D.N.C.
Feb. 2, 20 18). The Department of Labor, on behalf of Carr, seeks reinstatement to a comparable
position, back pay and benefits plus interest, punitive damages, and other relief. See id. ~ 18. Carr
also has a case against the Department of Commerce pending before the EEOC under the
Rehabilitation Act, 29 U.S.C. § 794. See Daniel Carr v. DOC, EEOC No. 430-2017-00028X.

4

II.
Carr asserts a Bivens claim against Gottholm, Guyton, and Hohn, in their individual and
official capacities, Ross, in his official capacity, and the United States. See Compl. 23-24, 28.3 Carr
argues that Gottholm, Guyton and Hohn, knew or should have known that Carr had a property and
liberty interest in his job. Compl. , 50. Carr contends that by ordering JHT to remove Carr from
his job in retaliation for raising occupational health and safety concerns, defendants deprived Carr
of his property and liberty without due process. See id. ,, 52-53. Defendants move to dismiss the
claim under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim [D.E. 21].
' A motion to dismiss under Rule 12(b)(6)tests the complaint's legal and factual sufficiency.
SeeAshcroftv. Iqbal, 556U.S. 662,677-80 (2009); BellAtl. Cor;p. v. Twombly. 550 U.S. 544,55463 (2007); Giarratano v. Johnson, 521 F.3d298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6)
motion, a pleading "must contain sufficient factual matter, accepted as true, to state a claim to relief ·
that is plausible on its face." Iqbal, 556 U.S. at 678 (quotation omitted); see Twombly. 550 U.S. at
570; Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the facts and
reasonable inferences "in the light most favorable to the [nonmoving party]." Massey v. Ojanii!, 759
F.3d 343, 352 (4th Cir. 2014) (quotation omitted); see Clatterbuck v. City of Charlottesville, 708
F.3d 549, 557 (4th Cir. 2013), abrogated on other grounds by Reed v. Town of Gilbert, 135 S. Ct.
2218 (2015). A court need not accept as true a complaint's legal conclusions, ''unwarranted
I
I

inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.3d at 302 (quotation
omitted); see Iqbal, 556 U.S. at 678-79. Rather, a plaintiffs allegations must "nudge[] [his]

3

Gottholm was the director of the NOAA laboratory at Pivers Island. Id., 3. Guyton was
the deputy director of the NOAA laboratory at Pivers Island. Id., 4; Hohn was the director of the
National Marine Fisheries Service, a division of the NOAA, at the NOAA laboratory at Pivers
Island. Id., 5. Ross is the Secretary of the Department of Commerce. Id, 6.

5

claims," Twombly. 550 U.S. at 570, beyond the realm of"mere possibility" into "plausibility." Iqbal,

556 U.S. at 678-79.
A Bivens claim is a "a judicially created damages remedy designed to vindicate violations
of constitutional rights by federal actors." Hall v. Clinto!!, 235 F.3d 202, 204 (4th Cir. 2000); see
Ziglar v. Abbasi, 137 S. Ct. 1843, 1854-56 (2017); Bivens, 403 U.S. at 395-97. In Bivens, the
Supreme Court held that a Fourth Amendment violation by "a federal agent acting under color ofhis
authority gives rise to a cause of action for damages." Bivens, 403 U.S. at 389; see Corr. Servs.
Corp. v. Malesko, 534 U.S. 61, 66--()7 (2001); Holly v. Scott, 434 F.3d 287,289 (4th Cir. 2006). In
finding an implied cause of action for damages, the Supreme Court held that "Congress had not
foreclosed a damages remedy in 'explicit' terms and that no 'special factors' suggested that the
Judiciary should 'hesitate' in the face of congressional silence." Abbasi, 137 S. Ct. at 1854
(quotations and alteration omitted); see Bivens, 403 U.S. at 396-97. The Supreme Court decided
Bivens nearly four decades ago, but the Supreme Court has found an implied cause of action for
damages arising from a constitutional violation in only two other cases: Davis v. Passman, 442 U.S.
228 (1979), a Fifth Amendment Due Process Clause case involving a congressional employee
alleging gender discrimination, and Carlson v. Gree!!, 446 U.S. 14 (1980), an Eighth Amendment
Cruel and Unusual Punishments Clause case involvin~ a prisoner denied adequate medical treatment.
See Abbasi, 137 S. Ct. at 1854-55; Carlso!!, 446 U.S. at 18-23; Davis, 442 U.S. at 247-49. The
Supreme Court has warned that expanding Bivens is disfavored. Abbasi, 13,7 S. Ct. at 1857.
Moreover, since Carlson, the Supreme Court has "consistently refused to extend Bivens to any new
context or new category of defendants." Id.; see Malesko, 534 U.S. at 68; Holly, 434 F.3d at 289.
Courts should be cautious before extending Bivens to "any new context or new category of
defendants." Abbasi, 137 S. Ct. at 1857 (quotation omitted); see Schweiker v. Chilicky. 487 U.S.

6

412, 421 (1988). In assessing whether a case involves a "new context" the Supreme Court stated:
If the case is different in a meaningful way from previous Bivens cases decided by
this Court, the context is new. Without endeavoring to create an exhaustive list of
differences that are meaningful enough to make a given context a new one, some
examples might prove instructive. A case might differ in a mean.itl:gful way because
of the rank of officers involved; the constitutional right at issue; the generality or
specificity of the official action; the extent of judicial guidance as to how an officer
should respond to the problem or emergency to be confronted; the statutory or other
legal mandate under which the officer was operating; the risk of disruptive intrusions
by the Judiciary into the functioning of other branches; or the presence of potential
special factors that previous Bivens cases did not consider.
Abbasi, 137 S. Ct. at 1859--60.
A court should not extend Bivens to a "new context" where special factors warrant hesitation.
See id.; Hernandez v.

Mes~

137 S. Ct. 2003, 2006 (2017); Wilkie v. Robbins, 551 U.S. 537, 550

(2007). The "special factors" inquiry focuses on whether ''the Judiciary is well suited, absent
congressional action or instruction, to consider and weigh the costs and benefits of allowing a
damages action to proceed." Abbasi, 137 S. Ct. at 1858; see Hernandez, 137 S. Ct. at2006; Wilkie,
551 U.S. at 550; Malesko, 534 U.S. at 68. A court should not extend Bivens to a "new context"
where Congress has provided an alternative remedy, even if such remedy does not afford complete
relief. See Wilkie, 551 U.S. at 550; Bush v. Lucas, 462 U.S. 367, 372-73 & n.8 (1983); Liffv.
Office of Inspector Gen. for U.S. Dep't of Labor, 881 F.3d 912, 918 (D.C. Cir. 2018) (collecting
cases).
As for Carr's Bivens claim against Ross, Gottholm, Guyton, and Hohn, in their official
capacities, and the United States, Bivens does not permit claims against federal agencies or federal
employeesintheirofficialcapacity. SeeFDICv. Meyer, 510U.S. 471,484--86 (1994); Doev. Chao,,
306 F.3d 170, 184 (4th Cir. 2002), affd, 540 U.S. 614 (2004). Accordingly, the court dismisses
these claims.

7

As for Carr's Bivens claim against Gottholm, Guyton, and Hohn, in their individual
capacities, that claim also fails. Carr's claim presents a new context from the claims presented in
Bivens, Davis, and Carlson. See,~' Turnerv. United States, -F. Supp. 3d-, 2018 WL 3233137,
at *3-5 (D. Conn. July 2, 2018). In opposition to this conclusion, Carr relies on Davis, which
involved an alleged violation of the Fifth Amendment Due Process Clause in the federalemployment context. Davis, however, does not extend to all cases concerning employment and the
Fifth Amendment Due Process Clause. In Davis, a Congressman terminated the employment of
his female administrative assistant. The former employee sued the Congressman for gender(

discrimination and alleged that the Congressman told her that he needed a man to do the job. See
/

Davis, 442 U.S. at 230. Unlike Davis, this case concerns a federal contractor and not a congressional
employee. Moreover, Carr does not contend that Gottholm, Guyton, and Hohn terminated his
employment. Rather, Carr contends that they directed JHT, a private entity, to terminate his
employment. Furthermore, the "linchpin" of the Supreme Court's holding in Davis was that the
<

plaintiff had no remedy for her gender-discrimination claim because Title VII did not apply to
congressional employees. Gonzalez v. Velez, 864 F.3d 45, 53 (1st Cir. 2017); see Davis, 442 U.S.
at 245 ("And there are available no other alternative forms of judicial relief. For Davis, as for
Bivens, 'it is damages or nothing."'). Thus, Carr's case presents a new context. See Abbasi, 137
S. Ct. at 1859-60.
As for the "special factors" analysis, special factors counseling hesitation include
Congressional action and existing legislation and the existence of alternative remedies. See id. at
1858. Here, numerous factors counsel hesitation. Congress enacted OSHA, a comprehensive
statutory scheme, that protects against retaliatory termination for reporting workplace safety
concerns, the exact wrongdoing that Carr alleges in this case. See 29 U.S.C. § 660(c)(1); see also

8

Johnson v. Interstate Mgmt. Co., 871 F. Supp. 2d 1, 4-5 (D.D.C. 2012), aff'd, No. 14-7164,2015
WL 4072092 (D.C. Cir. June 29, 2015) (per curiam) (unpublished). Although OSHA does not
include a private right of action, OSHA authorizes the Secretary of the Department of Labor to file
a civil action in a federal district court on behalf of an employee who was discharged or
discriminated against for reporting a safety concern. See 29 U.S.C. § 660(c)(l); Johnson, 871 F.
Supp. 2d at 4-5. In enacting OSHA, Congress intentionally declined to provide for a private right
of action and instead vested the Department of Labor with the power to vindicate the rights of
employees terminated in retaliation for reporting safety concerns.

See,~'

Taylor v. Brighton

Corp., 616 F.2d 256, 262-63 (6th Cir. 1980). Allowing Carr to proceed with his Bivens action
would, in essence, create a private right of action under OSHA when Congress expressly declined
to do so. This court declines to create this "remedy in order to respect the role of Congress."
Abbasi, 137 S. Ct. at 1858; see Schweiker, 487 U.S. at 423 ("When the design of a Government
program suggests that Congress has provided what it considers adequate remedial mechanisms for
constitutional violations that may occur in the course of its administration, we have not created
additional Bivens remedies."); Atterbury v. U.S. Marshals Serv., 805 F.3d 398, 404-05 (2d Cir.
2015).
Carr also has alternate remedies. The Secretary of the Department of Labor has filed an
action on behalf of Carr. See Acosta v. Jardon & Howard Techs.. Inc., No. 4:18-CV-16-D, [D.E.
15] (E.D.N.C. Feb. 2, 2018). The Department of Labor, on behalf of Carr, seeks reinstatement to
a comparable position, back pay and benefits plus interest, punitive damages, and other relief. See
id. ~ 18. Carr also has a case against the Department of Commerce pending before the EEOC under
the Rehabilitation Act, 29 U.S.C. § 794. See Daniel Carr v. DOC, EEOC No. 430-2017-00028X.
If Carr succeeds in his Rehabilitation Act case, the administrative law judge can order reinstatement,

9

backpay, compensatory damages, and attorney's fees. See [D.E. 22] 3.
In opposition to the conclusion that Carr has alternate remedies, Carr argues that the
Department of Labor's case against JHT on his behalfis not an alternate remedy because "[Carr] is
not a party to that case, and has no ability to control the case or its outcome," and Guttholm, Guton,
and Hohn are not parties to that case. [D.E. 24] 24. The court rejects the argument. The named
plaintiff and defendant in an alternate proceeding is not relevant to assessing whether Carr's interests
are protected. The remedies available to Carr through these two processes can make him whole, and
are indeed greater than the remedies available under Bivens. In any event, even if the alternate
remedies available to Carr would not make him whole, his claim would still fail. The inquiry
focuses on whether alternate remedies are available, not whether such alternate remedies provide the
same relief as a Bivens action. See Malesko, 534 U.S. at 520 ("So long as the plaintiffha[s] an
avenue for some redress, bedrock principles of separations ofpowers foreclose []judicial imposition
of anew substantive liability."); ~ush, 462 U.S. at 388; Liff, 881 F.3d at 918, 921. Thus, the court
declines to find a Bivens cause of action and dismisses Carr's Bivens claim against Gottholm,
Guyton, and Hohn, in their individual capacities.

m.
As for Carr's wrongful discharge claim against JHT, JHT argues that this court should
dismiss the claim for failure to exhaust administrative remedies. See Fed. R. Civ. P. 12(b)(1). A
motion to dismiss under Rule 12(b)(1) tests subject-matter jurisdiction, which is the court's
"statutory or constitutional power to adjudicate the case." Steel Co. v. Citizens for a Better Env't,
523 U.S. 83, 89 (1998) (emphasis omitted); see Holloway v. Pagan River Dockside Seafood. Inc.,
669 F.3d 448,453 (4th Cir. 2012); Constantine v. Rectors & Visitors of George Mason Univ., 411
F.3d 474,479-80 (4th Cir. 2005). "[T]he party invoking federal jurisdiction bears the burden of
10

establishing its existence." Steel Co., 523 U.S. at 104; see Evans v. B.F. Perkins Co., 166 F.3d 642,
647 (4thCir.l999); Richmond.Fredericksburg&PotomacR.R. v. United States, 945 F.2d 765,768
(4th Cir. 1991).
In considering a motion to dismiss for lack of subject-matter jurisdiction, the court may
consider

evidenc~

judgment.

outside the pleadings without converting the motion into one for summary

See,~'

Richmond. Fredericksburg & Potomac R.R., 945 F.2d at 768. However, if a

defendant "contend[s] that a complaint simply fails to allege facts upon which subject matter
jurisdiction can be based," then "all the facts alleged in the complaint are assumed to be true and the
plaintiff, in effect, is afforded the same procedural protection as he would receive under a·Rule
12(b)(6) consideration." Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982); see Kerns v. United
States, 585 F.3d 187, 192-93 (4th Cir. 2009). Thus, ''when a defendant asserts that the complaint
fails to allege sufficient facts to support subject matter jurisdiction," a court must "assume the
truthfulness of the facts alleged" in the complaint and any attached materials. Kerns, 585 F.3d at
193; see Fed. R. Civ. P. lO(c).
JHT' s motion to dismiss requires the court to consider Carr's wrongful discharge claim,
which arises under North Carolina law. Accordingly, the court must predict how the Supreme Court
of North Carolina would rule on any disputed state-law issue~ See Twin City Fire Ins. Co. v. Ben
Arnold-Sunbelt Beverage Co. of S.C., 433 F .3d 365, 369 (4th Cir. 2005). In doing so, the court must
i

look first to opinions of the Supreme Court of North Carolina. See Stahle v. CTS Cm:p., 817 F.3d
96, 100 (4th Cir. 2016). If there are no governing opinions from the Supreme Court ofNorth
Carolina, this court "may consider lower court opinions[,] ... treatises, and the practices of other

11

states." Twin City Fire Ins. Co., 433 F.3d at 369 (quotation omitted).4 In doing so, a federal court
"should not create or expand [a] [s]tate's public policy." Time Warner Entm't-Advance/Newhouse
P'ship v. Carteret-Craven Elec. Membership Corp., 506 F.3d 304, 314 (4th Cir. 2007) (first
alteration in original) (quotation omitted); Wade v. Danek Med.. Inc., 182 F.3d 281, 286 (4th Cir.
1999). Moreover, in predicting how the highest court of a state would address an issue, this court
must "follow the decision of an intermediate state appellate court unless there is persuasive data that
I

.

the highest court would decide differently." Toloczko, 728 F.3d at 398 (quotation omitted).
Under North Carolina law, an employer generally may terminate an at-will employee for any
reason. Garner v. Rentenbach Constructors Inc., 350 N.C. 567, 568-72, 515 S.E.2d 438, 439-41
(1999). North Carolina recognizes a narrow exception to that general rule if an employee's
termination violates North Carolina public policy.

See,~'

Whitt v. Harris Teeter. Inc.,359 N.C.

625, 625, 614 S.E.2d 531, 532 (2005) (per curiam) (adopting dissenting opinion at 165 N.C. App.
32, 43-50, 598 S.E.2d 151, 159--63 (2004) (McCullough, J., dissenting)); Garner, 350 N.C. at
568-72, 515 S.E.2d at 439-41; Amos v. Oakdale Knitting Co., 331 N.C. 348, 350-54, 416 S.E.2d
166, 167-70 (1992); Coman v. Thomas Mfg. Co., 325 N.C. 172, 176-78, 381 S.E.2d 445,447-49
(1989). To state a claim of wrongful discharge in violation of North Carolina public policy, a
plaintiff must identify and rely uphn a specific North Carolina statute or North Carolina
constitutional provision stating North Carolina's public policy. See Garner, 350N.C. at 568-72,515
S.E.2dat439-41; Amos, 331 N.C. at350-54, 416 S.E.2dat 167-70; Coman, 325N.C. at 176,381
S.E.2dat447; Homev. CumberlandCty. Hosp. Sys .. Inc., 228N.C. App. 142, 146,746 S.E.2d 13,

4

North Carolina does not have a mechanism to certify questions of state law to its Supreme
Court. See Town ofNags Head v. Toloczko, 728 F.3d 391, 397-98 (4th Cir. 2013).
12

17-19(2013); Considinev. USACompassGrouplnc., 145N.C.App. 314,321-22,551 S.E.2d 179,
184 (2001).
Carr relies on REDA, N.C. Gen. Stat. § 95-240, et seq., as a source of North Carolina's
public policy. See Compl. ,, 14, 56, 59,62. 5 REDAprovides a source of public poliqyto support
aclaimforwrongfuldischarge. See Whitev. Cochrru1, 216N.C.App. 125, 132-33,716 S.E.2d420,
426-27 (2011); Whiting v. Wolfson Casing Cor.p., 173 N.C. App. 218, 221-22, 618 S.E.2d 750,
752-53 (2005).
JHT m()ves to dismiss Carr's complaint under Federal Rule of Civil Procedure 12(b)(1)
because Carr has not exhausted the administrative remedies available under REDA. See [D.E. 17]
3-5. REDA prohibits retaliation against an employee when the employee "in good faith does or
threatens to ... [f]ile a claim or complaint, initiate any inquiry, investigation, inspection, proceeding
or other action[.]" N.C. Gen. Stat. § 95-241. The aggrieved employee must file a written complaint
with the North Carolina Commissioner of Labor within 180 days of the alleged violation before
commencing a civil action. See id. § 95-242(a). The Commissioner of Labor will then investigate
the claim and either file a civil action on behalf of the employee or issue a right-to-sue letter. See
id. §§ 95-242-43. The aggrieved employee must receive a right-to-sue letter before filing a civil
action under REDA. See id. § 95-243(e). ·

5

Carr also relies on OSHA and executive orders of the President of the United States. See
Compl. ,, 14--15; [D.E. 23] 11-12. Carrcannotrelyonafederal statute orfederalpublicpolicyto
support his wrongful discharge claim. See, ~' Warren v. Smithfield Packing Co., No.
5:14--CV-71-D, 2014 WL 1691513, at *1-2 (E.D.N.C. Apr. 24, 2014) (unpublished) (collecting
cases); Feldman v. LawEnftAssocs. Cor.p., 779 F. Supp. 2d472, 495-96 &n.17 (E.D.N.C. 2011).
Thus, to the extent Carr bases his wrongful discharge claim on federal public policy, the court
dismisses that claim for failure to state a claim.
13

Carr concedes that he has not yet received a right-to-sue letter from the North Carolina
Department of Labor because the North Carolina Department of Labor deferred to the United States
Department of Labor, which filed suit on behalf of Carr for a violation of OSHA. See Compl. ~~
58-60. Nonetheless, Carr contends that his wrongful discharge claim is separate and distinct from
his REDA claim. Thus, according to Carr, this court should not dismiss his wrongful discharge
claim for failure to exhaust. See [D.E. 23] 7-13.
The court agrees. Although the Supreme Court of North Carolina has not addressed the
issue, cases from the North Carolina Court of Appeals are persuasive authority. See Toloczko, 728
F.3d at 398. In Brackett v. SGL Carbon Cor.p., 158 N.C. App. 252, 580 S.E.2d 757 (2003), the
plaintiff filed an action alleging that the defendant violated REDA. Id. at 254, 580 S.E.2d at 758.
The plaintiff received a right-to-sue letter from the North Carolina Department of Labor stating that
it was dismissing plaintiff's complaint due to plaintiff's failure to file his complaint within 180 days
of the alleged discriminatory discharge as REDA required. Id. at 254, 580 S.E.2d at 759. The
defendant moved to dismiss the REDA claim as time-barred. ld., 580 S.E.2d at 759. Before the trial
court ruled on the defendant's motion, the plaintiff moved for leave to amend his complaint to add
a claim for wrongful discharge in violation ofNorth Carolina public policy and relied on REDA as
the source of North Carolina public policy. Id., 580 S.E.2d at 759. The trial court granted the
defendant's motion to dismiss and denied the plaintiff leave to amend to add a claim for wrongful
discharge. ld. at 254--55, 580 S.E.2d at 759. On appeal, theNorth Carolina Court ofAppeals upheld
the dismissal of plaintiff's REDA claim as time-barred because the plaintiff failed to file his
complaint with the North Carolina Department of Labor within 180 days of the alleged violation.
ld. at 255-57, 580 S.E.2d at 759-61. Nonetheless, the Court of Appeals held that the trial court
erred in denying the plaintiff leave to amend to add a claim from wrongful discharge in violation of
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public policy based on the defendant's alleged REDA violation because REDA's 180-day statute of
limitations does not apply to common law wrongful discharge claims. See id. at 258--60, 580 S.E.2d
at 761--62. In reaching this conclusion, the Court ofAppeals relied on REDA' s text which provides
that "[n]othing in this Article shall be deemed to diminish the rights or remedies of any employee
under any collective bargaining agreement, employment contract, other statutory rights or remedies,
or at common law." N.C. Gen. Stat. § 95-244; see Brackett, 158 N.C. App. at 260, 580 S.E.2d at
762.
Since Brackett, the North Carolina Court of Appeals has continued to apply its holding that
a REDA claim is a "supplemental remedy'' to a common law wrongful discharge claim with REDA
as the source ofNorth Carolina public policy. See White, 216N.C. App. at 133,716 S.E.2dat426;
Whiting, 173 N.C. App. at 222, 618 S.E.2d at 753. Accordingly, this court predicts that the Supreme
Court ofNorth Carolina would hold that Carr was not required to obtain a right-to-sue letter from
the Department of Labor before, bringing his common law wrongful discharge claim against JHT.
Thus, the court grants in part and denies in part JHT's motion to dismiss.
IV.
In sum, the court GRANTS the government's motion to dismiss [D.E. 21], and GRANTS

in part and DENIES in part JHT's motion to dismiss [D.E. 16].
SO ORDERED. This f l day of October 2018.

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