Jackson v. Tyco Electronics Corporation
ORDER granting in part and denying in part 12 Motion to Dismiss for Failure to State a Claim - Defendant's motion to dismiss is GRANTED IN PART AND DENIED IN PART. Plaintiff's First through Third and Fifth and Six th claims are DISMISSED. Plaintiff's Fourth Claim on which it appears she seeks punitive and compensatory damages, attorneys fees, and costs, is allowed to proceed. An initial order regarding planning and scheduling will follow. Signed by District Judge Louise Wood Flanagan on 5/22/2017. (Baker, C.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
BOBBIE A. JACKSON,
TYCO ELECTRONICS CORPORATION,
This matter comes before the court on defendant’s motion to dismiss for failure to state a
claim. (DE 12). The motion has been fully briefed, and in this posture issues raised are ripe for
ruling. For the reasons that follow, defendant’s motion is granted in part and denied in part.
Plaintiff initiated this action September 21, 2016, in the General Court of Justice Superior
Court Division for Harnett County, North Carolina, seeking reinstatement of employment,
compensatory and punitive damages, and other ancillary relief arising from defendant’s alleged acts
of employment discrimination and retaliation in violation of the North Carolina Equal Employment
Practices Act (“NCEEPA”), loosely pleaded in the first three claims for relief. Plaintiff alleges in
three separate tort-based claims the following: 1) wrongful termination; 2) intentional infliction of
emotional distress; and 3) negligent infliction of emotional distress. Defendant removed the case
to this court October 27, 2016, on the basis of diversity jurisdiction.
Defendant filed the instant motion November 28, 2016, seeking dismissal for failure to state
a claim as to plaintiff’s claims for NCEEPA violations as well as plaintiff’s claims of intentional and
negligent infliction of emotional distress. Defendant also seeks dismissal as to plaintiff’s claim of
wrongful termination on the ground that the claim either never existed under North Carolina law or
is time-barred. Finally, defendant seeks dismissal as to plaintiff’s remaining claims for damages and
other relief on the ground that such claims do not constitute independent causes of action.
STATEMENT OF FACTS
The facts alleged in the complaint may be summarized as follows. Defendant is engaged in
the business of assembling, packing, and shipping electronic components. Plaintiff, a resident of
Harnett County, North Carolina, became defendant’s employee May 15, 1990. In her complaint,
plaintiff alleges problems arising no later than early 2015 between plaintiff and her supervisors.
At a company meeting held January 6, 2015, with plaintiff, defendant’s manufacturing
supervisor, Robert Yarborough (“Yarborough”), and plant manager, Mark Johnson, Yarborough
engaged in angry outbursts. Plaintiff contends he yelled at her and slapped his hands near plaintiff’s
face. (DE 1-1 ¶ 15). Defendant took no action to address Yarborough’s behavior. (Id. ¶ 16).
At other times, defendant’s supervisor, Raphael Marconi (“Marconi”), responded negatively
to plaintiff’s suggestions, belittling plaintiff by stating in response to her comments that “he had a
wife[,]” and, after forming his hand in a manner to mime choking, told plaintiff “[y]ou better be glad
this table is between us.” (Id. ¶ 11). Yet another of defendant’s supervisors, Martin Ramirez
(“Ramirez”), belittled plaintiff and often said “[w]e have to keep the young guys happy because they
are the future of the company[.]” (Id. ¶ 13).
Following these events, plaintiff filed an internal complaint with defendant’s human
resources department February 13, 2015, alleging employment discrimination. (Id. ¶ 18). On the
same day, defendant’s human resources director, Emily Du, without first allowing plaintiff to
describe her version of the January 6, 2015, incident involving Yarborough, instructed plaintiff to
undergo anger management training. (Id. ¶ 17).
On March 18, 2015, Betsy Boger, another human resources director for defendant, notified
plaintiff that her February 13, 2015, complaint had been investigated, which concluded in plaintiff’s
favor, (id. ¶ 19), even though defendant’s investigator never discussed the January 6, 2015, incident
with plaintiff. (Id. ¶ 23). Also on March 18, 2015, defendant issued to plaintiff a “performance
improvement plan[,]” which outlined several areas of concern not described in the complaint. (Id.
¶¶ 20–21). Plaintiff already had addressed the areas of concern outlined in the performance
improvement plan weeks before the plan issued. (Id. ¶ 22).
On March 21, 2015, plaintiff filed another internal complaint
employment discrimination. (Id, ¶ 24). On the same day, Brandon Burton, employed by defendant
as a human resources generalist, informed plaintiff that she was being suspended without pay
because she had an open retaliation claim and management did not want her at the workplace during
the investigation. (Id. ¶¶ 25–26). Defendant terminated plaintiff’s employment April 10, 2015. (Id.
Standard of Review
A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal sufficiency
of the complaint but “does not resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). A
complaint states a claim if it contains “sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Asking for plausible grounds . . . does not impose
a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable
expectation that discovery will reveal [the] evidence” required to prove the claim. Twombly, 550
U.S. at 556. In evaluating the complaint, “[the] court accepts all well-pled facts as true and
construes these facts in the light most favorable to the plaintiff,” but does not consider “legal
conclusions, elements of a cause of action, . . . bare assertions devoid of further factual
enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments.” Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009).
NCEEPA Violations (First, Second, and Third Claims for Relief)
NCEEPA states, in relevant part, “[i]t is the public policy of this State to protect and
safeguard the right and opportunity of all persons to seek, obtain and hold employment without
discrimination or abridgement on account of . . . age [or] sex . . . .” N.C. Gen. Stat. § 143-422.2.
Although this statute does not provide a private cause of action, Smith v. First Union Nat’l Bank,
202 F.3d 234, 247 (4th Cir. 2000), it does support a common law claim for wrongful discharge in
violation of public policy. McLean v. Patten Cmtys., Inc., 332 F.3d 174, 720–21 (4th Cir. 2003).
Plaintiff’s first three claims are styled, respectively, as claims of age discrimination, sex
discrimination, and retaliation, each in violation of NCEEPA. As held above, where a plaintiff can
invoke NCEEPA only through a common law claim for wrongful discharge in violation of public
policy, and where these claims do not allege wrongful discharge, these claims must be dismissed.
See Smith, 202 F.3d at 247.
Plaintiff relies upon a treatise for the proposition that “every case recognizing a viable claim
for WDPP (wrongful discharge in violation of public policy) has involved a retaliatory aspect, in
which the employee was fired in retaliation for his/her opposition to the employer’s actions or
instructions.” (DE 17 at 2 (citing Laura J. Wetsch, Practitioner’s Guide to North Carolina
Employment Law, (2d ed. 2016)). Even assuming the quoted observation is correct, the Fourth
Circuit has held that “there is no private right of action under North Carolina law for retaliation
under [NCEEPA].” McLean v. Patten Communities, Inc., 332 F.3d 714, 719 (4th Cir. 2003).
Accordingly, as held above, where plaintiff’s first three claims allege violations of NCEEPA and
retaliation in violation of NCEEPA apart from wrongful discharge, these claims cannot survive a
motion to dismiss. See id.
Wrongful Discharge in Violation of NCEEPA (Fourth Claim for Relief)
As held above, NCEEPA supplies a public policy basis to support a claim of wrongful
discharge in violation of public policy where a plaintiff alleges facts demonstrating termination of
employment on the basis of membership in a class protected by NCEEPA, including age or sex. See
Smith, 202 F.3d at 247. Accordingly, where plaintiff alleges wrongful discharge on the basis of her
age and sex occurring March 10, 2015, plaintiff has stated injury and a cause of action for wrongful
discharge based upon NCEEPA.
In support of its position, defendant argues that plaintiff’s claim never existed under North
Carolina law, as clarified by a 2016 amendment to NCEEPA or the claim is time-barred by a later
amendment thereto. On March 23, 2016, the North Carolina General Assembly (“General
Assembly”) amended NCEEPA to include the language, “[t]his [a]rticle does not create, and shall
not be construed to create or support, a statutory or common law private right of action, and no
person may bring any civil action based upon the public policy expressed herein.” N.C. S.L. 2016-3
§ 3.2 introduced as House Bill 2 (“HB2") § 3.2. Then, July 18, 2016, the General Assembly enacted
“an act to restore the state tort claim for wrongful discharge[,]” N.C. S.L. 2016-99, which eliminated
the language quoted above from HB2 § 3.2 and, in addition, amended N.C. Gen. Stat. § 1-54
expressly to include actions “[f]or wrongful discharge in violation of the public policy set forth in
[NCEEPA]” among actions subject to a one-year statute of limitations. Prior to that time, wrongful
discharge was subject to a three-year statute of limitations. See N.C. Gen. Stat. § 1–52(1) (amended
2016); Winston v. Livingstone College, Inc., 210 N.C.App. 486, 489 (N.C. Ct. App. 2011) (“The
limitations period for a tort action based upon wrongful discharge in violation of public policy is
Where North Carolina courts and the Fourth Circuit previously had recognized availability
of a cause of action arising from discharge of employment based upon an employee’s membership
in a class protected by NCEEPA, the text of HB2 § 3.2 expressly precluded a “common law private
right of action” on such basis. See HB2, § 3.2. Accordingly, HB2 § 3.2 abrogated the cause of
action for wrongful discharge in violation of public policy embodied in NCEEPA, while N.C. S.L.
2016-99 restored same and shortened the limitations period to one year.
Regardless of the foregoing legislative actions, plaintiff’s claim for wrongful discharge
survives because HB2 § 3.2 does not expressly apply retroactively to claims existing prior to its
enactment. Accordingly, where the North Carolina Supreme Court is reluctant to infer retroactive
application of a statute, especially where such retroactive operation may destroy a vested right,
Smith v. Mercer, 276 N.C. 329, 337 (1970), HB2 § 3.2 is best interpreted as operating only
prospectively, thus, having no effect upon plaintiff’s preexisting claim.
It follows that plaintiff’s claim of wrongful discharge is not time-barred. In Culbreth v.
Downing, the North Carolina Supreme Court held that where the General Assembly shortens the
statute of limitations applicable to a given claim, a plaintiff possessing such claim must file the claim
within either the previously existing period or within the span of the shortened period keyed off the
effective date of the new limitations period, whichever is shorter. 28 S.E. 294, 294 (1897); Best v.
Wayne Memorial Hosp., Inc., 147 N.C. App. 628 (N.C. Ct. App. 2001) (same). Thus, the deadline
applicable to plaintiff’s claim must be either September 21, 2018 (three years after complaint was
filed) or July 18, 2017, (one year after the passage of N.C. S.L. 2016-99). Because the latter period
is shorter than the former, July 18, 2017, constitutes the deadline for plaintiff to file her claim. See
Culbreth, 28 S.E. at 294. Accordingly, where plaintiff filed complaint September 21, 2016, the
claim is timely.
Defendant contends that HB2 § 3.2 constitutes a “clarifying” amendment embodying
legislative judgment that courts were mistaken from the beginning in recognizing the existence of
a cause of action based upon wrongful discharge in violation of NCEEPA. See Ray v. N.C. Dep’t.
Of Transp., 366 N.C. 1, 9 (2012) (“A clarifying amendment, unlike an altering amendment, is one
that does not change the substance of the law but instead gives further insight into the way in which
the legislature intended the law to apply from its original enactment.”). Accordingly, defendant
suggests that plaintiff never possessed a valid claim of wrongful discharge since the cause of action
under which she now proceeds did not properly exist under North Carolina law at the time of her
“To determine whether the amendment clarifies the prior law or alters it requires a careful
comparison of the original and amended statutes.” Ray, 366 N.C. at 10 (quoting Ferrell v. Dep't of
Transp., 334 N.C. 650, 659 (1993)). “If the statute initially fails expressly to address a particular
point but addresses it after the amendment, the amendment is more likely to be clarifying than
altering.” Id. (quotations omitted). Clarifying amendments “do not change the substance of the
original law.” Ray, 366 N.C. at 11.
This case presents something of an anomaly in applying the foregoing rules where there exist
two later-enacted statutes that arguably may affect proper interpretation of NCEEPA as it existed
when plaintiff’s claims arose in March 2015. Accordingly, where defendant has not demonstrated
that HB2 § 3.2 merits priority over N.C. S.L. 2016-99 as a source of authority from which to
ascertain legislative intent, the court will consider both statutes in interpreting NCEEPA.
In light of the foregoing observations and comparing the various versions of NCEEPA as
amended, HB2 § 3.2 does not constitute a clarifying amendment for two reasons. First, as noted
above, the General Assembly titled N.C. S.L. 2016-99 “an act to restore the state tort claim for
wrongful discharge[.]” See N.C. S.L. 2016-99 (emphasis added). Where “restore” means “to bring
back” that which existed before, Restore, Oxford English Dictionary Online (2017), by use of the
word “restore,” N.C. S.L. 2016-99 expressly contemplates prior existence of a state tort claim for
wrongful discharge in violation of NCEEPA. See id. Second, to effect its purpose of restoring prior
cause of action for wrongful discharge, N.C. S.L. 2016-99 simply deletes language added by HB2
§ 3.2, which necessarily implies that the General Assembly viewed language predating HB2 § 3.2
as sufficient to create a cause of action for wrongful discharge in violation of NCEEPA.
For the foregoing reasons, defendant’s motion to dismiss plaintiff’s claim of wrongful
discharge in violation of NCEEPA must be denied.
Negligent and Intentional Infliction of Emotional Distress (Fifth and Sixth Claims for Relief)
To state a claim for intentional infliction of emotional distress, a plaintiff must allege: “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). To state a claim for
negligent infliction of emotional distress, plaintiffs must allege that: “(1) the defendant negligently
engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff
severe emotional distress, and (3) the conduct did in fact cause the plaintiff severe emotional
distress.” Hickman By & Through Womble v. McKoin, 337 N.C. 460, 462 (1994). “The law
intervenes only where the distress inflicted is so severe that no reasonable man could be expected
to endure it.” Waddle, 331 N.C. at 84. Accordingly, to survive a motion to dismiss, a plaintiff must
allege emotional distress causing “severe and disabling psychological problems[.]” Id. at 85.
In this instance, plaintiff has not alleged extreme and outrageous conduct. As set forth
above, alleged belittling comments lodged against plaintiff by Yarborough, Marconi, and Ramirez
may constitute violation of other law, but where plaintiff has alleged only that such comments “led
[her] to seek medical treatment for stress and anxiety[,]” (DE 1-1 ¶ 14), plaintiff’s allegations do not
describe “severe and disabling psychological problems” as required under North Carolina law. See
Waddle, 331 N.C. at 85. That is, the fact that plaintiff sought psychological care does not imply that
plaintiff’s psychological trauma, if any, was sufficiently severe to give rise to a cause of action of
negligent or intentional infliction of emotional distress. See id. Plaintiff’s remaining allegations of
emotional distress (DE 1-1 ¶ 70 (“Management’s negligent conduct proximately caused severe
emotional distress); ¶ 75 (“The action of Management, constitutes extreme and outrageous conduct
and . . . would cause severe emotional distress”)) are conclusory in nature and, therefore, cannot
survive a motion to dismiss. Nemet Chevrolet, 591 F.3d at 255 (the court does not consider “legal
conclusions, elements of a cause of action, [nor] bare assertions devoid of further factual
enhancement”). Accordingly, plaintiff’s claims for negligent and intentional infliction of emotional
distress must be dismissed.
Ancillary Claims (Seventh, Eighth, and Ninth Claims for Relief)
The Seventh, Eighth, and Ninth claims set out by plaintiff in her complaint do not, as
defendant argues, constitute independent causes of action.
more properly may be
characterized as prayers for relief, hinged on plaintiff’s substantive claims. See Fed. R. Civ. P.
8(a)(3). To the extent that substantive claim remains, defendant does not advance on motion any
specific basis for denial of punitive and compensatory damages, attorneys’ fees, and costs. In this
part, the motion is denied.
For the foregoing reasons, defendant’s motion to dismiss is GRANTED IN PART AND
DENIED IN PART. Plaintiff’s First through Third and Fifth and Sixth claims are DISMISSED.
Plaintiff’s Fourth Claim on which it appears she seeks punitive and compensatory damages,
attorneys’ fees, and costs, is allowed to proceed. An initial order regarding planning and scheduling
SO ORDERED, this the 22nd day of May, 2017.
LOUISE W. FLANAGAN
United States District Judge
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