Phillips v. Sheetz, Inc. et al

Filing 24

MEMORANDUM AND ORDER denying as moot 6 Dfts' Motion to Dismiss; denying 8 Plf's Motion to Remand; granting 13 Dfts' Motion for Reconsideration ; granting 17 Dfts' renewed Motion to Dismiss. Plaintiff's Amended Complaint is hereby Dismissed with prejudice. Signed by District Judge Richard Voorhees on 10/9/13. (smj)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CASE NO. 5:11-cv-00090-RLV-DSC
KIMBERLIE PHILLIPS,
Plaintiff,
v.
SHEETZ, INC., and
KELLY HOSTETLER,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

MEMORANDUM AND ORDER

THIS MATTER is before the Court on Defendants’ renewed Motion to Dismiss (Doc.
17) and Motion for Reconsideration (Doc. 13), and Plaintiff’s Motion to Remand (Doc. 8) and
Amended Complaint (Doc. 15). Having established that an employee is not permitted to avoid
the rigors of the intentional emotional distress tort by relying on intentional, supervisory conduct
as the basis for a negligence tort claim, and having further determined that Plaintiff failed to
plead Defendant Hostetler’s conduct as negligent, the Court previously stayed decision on these
motions pending Plaintiff’s submission of her Amended Complaint. (Doc. 12.)
However, Plaintiff’s amendments do not free her Complaint of defects fatal to her claim
of negligent infliction of emotional distress (“NIED”). Notably, Defendants have argued that
company policy is an insufficient basis for establishing Defendant Hostetler’s duty to provide for
a harassment-free workplace for employees. Although the Court recognizes that company
policies “represent some evidence of a reasonably prudent standard of care,” such “voluntary
written policies and procedures do not themselves establish a per se standard of due care.”
Klassette by Klassette v. Mecklenburg Cnty. Area Mental Health, Mental Retardation &
Substance Abuse Auth., 364 S.E.2d 179, 183 (N.C. Ct. App. 1988). The ready implication of
1

such a standard from company policies would serve only to discourage, indeed to penalize,
voluntary assumption or self-imposition of standards of conduct, thereby increasing the risk of
harm to employees or the public. Hall v. Toreros, II, Inc., 626 S.E.2d 861, 867 (N.C. Ct. App.
2006). Accordingly, having previously found no alternative foundation for such a duty in this
case, the Court shall dismiss Plaintiff’s NIED claim against Defendant Hostetler. (Doc. 12 at 7–
8.)
Defendant Hostetler having been dismissed from this case, Defendants’ Motion to
Dismiss may now be considered.
As regards her first claim for relief, wrongful discharge as sex discrimination, Plaintiff
argues that because she endured sexual harassment from Ms. Antoniou, a manager-trainee whom
Plaintiff once instructed, Defendants’ subsequent termination of Plaintiff’s employment violated
the North Carolina Equal Employment Practices Act (“NCEEPA”), N.C. Gen. Stat. § 143-422.2,
as discrimination “because of . . . sex.” (Doc. 21 at 10–17) (suggesting further that Ms.
Hostetler’s recommendation for discharge was motivated by a fear for her own job security in
light of her prior inaction, rather than Plaintiff’s sex). Although Ms. Antoniou’s harassment was
obviously motivated in part by Plaintiff’s sex, Plaintiff has not satisfactorily alleged that the
employer’s decision to terminate Plaintiff’s employment was motivated by her sex or that the
employer otherwise made some affirmative demand of Plaintiff to violate public policy, such as
acceding to the harassment. Whitt v. Harris Teeter, Inc., 614 S.E.2d 531, 532 (N.C. 2008)
(adopting the reasoning of dissenting opinion in the court below, which noted that a wrongfuldischarge claim “require[s] some affirmative demand of an employee by the employer to violate
public policy”); Amos v. Oakdale Knitting Co., 416 S.E.2d 166, 169 (N.C. 1992) (“Although the
definition of ‘public policy’ approved by this Court does not include a laundry list of what is or

2

is not ‘injurious to the public or against the public good,’ at the very least public policy is
violated when an employee is fired in contravention of express policy declarations contained in
the North Carolina General Statutes.”); Ridenhour v. IBM Corp., 512 S.E.2d 774, 778 (N.C. Ct.
App. 1999) (“Public policy is defined as ‘the principle of law that holds no citizen can lawfully
do that which has a tendency to be injurious to the public or against the public good.’ . . . There
is no specific list of what actions constitute a violation of public policy. . . . However, wrongful
discharge claims have been recognized in North Carolina where the employee was discharged
(1) for refusing to violate the law at the employer[’]s request, . . . (2) for engaging in a legally
protected activity, or (3) based on some activity by the employer contrary to law or public policy
. . . .”). This claim shall therefore be dismissed.
With respect to Plaintiff’s second claim for relief, wrongful discharge on the basis of
opposition to sex discrimination, Plaintiff argues that because she opposed sexual harassment
from Ms. Antoniou, and because she was discharged in response to her complaints of sexual
harassment, such discharge violated the NCEEPA. Although certain public-policy-based
exceptions are recognized by North Carolina’s courts, it remains the general rule that “an at-will
employee in [North Carolina] may not maintain a claim for wrongful discharge.” Deerman v.
Beverly Cal. Corp., 518 S.E.2d 804, 806 (N.C. Ct. App. 1999) (citation omitted). Presuming that
Plaintiff “was terminated in retaliation for her complaints of gender discrimination, such
termination does not violate any express policy of the state of North Carolina. Plaintiff does not
provide any citations to applicable statutes or law stating otherwise.” Curran v. First Union
Mortg. Corp., No. 5:95-975, 1997 WL 907909, at *1 (E.D.N.C. Mar. 24, 1997); accord McNeil
v. Scotland Cnty., 213 F. Supp. 2d 559, 570 (M.D.N.C. 2002) (citing Cline v. Dahle, No. 01-94,
2002 WL 857552, at *7 (N.C. Ct. App. May 7, 2002)). This claim shall also be dismissed.

3

Plaintiff having failed to establish the requisite duty of care, her NIED claim as against
Defendant Sheetz shall likewise be dismissed.
Plaintiff’s fourth claim for relief, for negligent retention and supervision, fails in part for
the same reason. To establish such a claim in North Carolina, Plaintiff must allege (1) that an
incompetent employee committed a tortious act resulting in injury to Plaintiff and (2) that, prior
to the act, the employer knew or had reason to know of the employee’s incompetency. Smith v.
First Union Nat’l Bank, 202 F.3d 234, 250 (4th Cir. 2000) (citing Hogan v. Forsyth Country
Club Co., 340 S.E.2d 116, 124 (N.C. Ct. App. 1986)). Defendant proffers the NIED and
wrongful-discharge claims as the requisite “tortious acts.” (Doc. 21 at 22–23.) Because these
underlying claims have been dismissed, so must the negligent-retention-and-supervision claim be
dismissed.
Finally, “Plaintiff has elected not to pursue her hostile work environment claim and will
not challenge Defendant on that count.” (Doc. 21 at 10 n.4.) Therefore, Plaintiff’s fifth and final
claim shall be dismissed.
IT IS, THEREFORE, ORDERED that Defendants’ Motion for Reconsideration (Doc.
13) be GRANTED. Plaintiff’s Motion to Remand (Doc. 8) is therefore DENIED.
IT IS FURTHER ORDERED that Defendants’ renewed Motion to Dismiss (Doc. 17)
be GRANTED. Defendants’ prior motion (Doc. 6) is DENIED as moot. Plaintiff’s Amended
Complaint is hereby DISMISSED with prejudice.
Signed: September 30, 2013

4