Chris Snyder, an attorney licensed to practice law in North Carolina, has come to our office with an interest in filing suit against her former employer, Parks, Rich, and Stone, P. L. L. C. , for the wrongful termination of her employment. Chris alleges that she was discharged from her employment with the firm in retaliation for her plan to file an EEOC complaint against one of the firm's senior partners, Jack Rich, and the firm itself, for sexual harassment.
Chris claims that the EEOC complaint stems from her refusal to engage in a sexual relationship with Rich. FACTS: These are the facts as indicated by Chris Snyder in her initial interview. Chris was hired by Parks, Rich, and Stone, P. L. L. C. , after having met with Rich personally for negotiations and began work in August of 2000. Chris worked directly under Rich and was given an office that could only be entered through his, separating her from the other associates and partners, and received her assignments solely from Rich.
Upon receipt of her bar results, Rich took Chris and the other new associates to a gentleman's club. Chris, being the only female of the group, expressed her displeasure at the choice of venue. Rich responded that she was expected to be a "team player" and that she should just relax. Over the course of the evening, and continuing over the following weeks, Chris overheard numerous associates making reference to her situation with Rich, suggesting that she was one of a string of female associates who had come and gone.
Chris was told directly by Rich's assistant, that the female associate who worked under Rich last left quickly and unannounced only a few months prior to Chris's arrival. Rich continued to keep Chris secluded and only allowed her to participate in litigation when he felt that a judge might be partial to an attractive female lawyer. The climax occurred in March of 2002 when Chris and Rich were working late one evening. Rich invited Chris into his personal apartment, which he kept in the office, to have a drink.
According to Chris, before she had an opportunity to respond, Rich took her arm, pulled her near him and made an attempt to kiss her. After Chris refused his advances, she claims that Rich became angry and made disparaging remarks towards her. The following day Chris reported the incident to human resources to no avail. In the weeks following, Chris alleges that Rich became quite hostile towards her, complaining about her performance, making demeaning and degrading remarks, and reassigning her work.
Chris claims that Rich even told her that, "she should go back to beauty pageants, where she belonged. " Finally, Chris returned to human resources and told the director that she planned on filing an EEOC complaint against Rich and the firm for sexual harassment. She was fired two days later. Following the firing, Chris claims that she has been unable to find comparable employment and that she had been under the care of a psychiatrist for emotional distress and post traumatic stress disorder.
ISSUES: (1) Under North Carolina law and the Coman exception does Chris Synder have a claim for wrongful discharge when her employment was terminated after she informed her employer of her plans to file an EEOC complaint for sexual harassment? (2) Under North Carolina law does Chris Snyder have a claim for the tort of Intentional Infliction of Emotional Distress when her employer made sexual advances toward her and made humiliating and disparaging remarks about her and her work performance?
(3) Under North Carolina law does Chris Snyder have a claim for the tort of battery when she was touched by her employer without her consent? BREIF ANSWERS: (1) Probably no. While North Carolina is an at-will employment state, there is a public policy exception to the rule. However, following North Carolina case law, the exception has only been used when the employee is fired for refusing to actively violate North Carolina public policy or in violation of a North Carolina General Statute.
Chris Snyder's employment was not terminated for her refusal to violate public policy, nor was a statute violated, and therefore, her claim will not fit into this narrow exception. (2) Probably no. The standard for which conduct is considered "extreme and outrageous" in North Carolina is quite high. Rich's conduct would most likely not fit into this standard therefore failing to complete all of the elements of the tort of Intentional Infliction of Emotional Distress. (3) Probably yes. All of the elements of the tort of battery are in place for a successful claim against Rich.
DISCUSSION: Wrongful discharge: North Carolina is an at-will employment state meaning that, "in the absence of a contractual agreement between an employer and employee establishing a definite term of employment, the relationship is presumed to be terminable at the will of either party without regard to the quality of performance of either party. " Garner v. Rentenbach Constructors, Inc. , 350 N. C. at 569, 501 S. E. 2d 83 (1998). However, there are certain exceptions to this doctrine that the North Carolina Supreme Court recognizes.
The first arising out of Sides v. Duke University where Sides was discharged from her employment for her refusal to testify untruthfully in court Sides v. Duke University, 74 N. C. App. 342, 328 D. R. 2d 826 (1985). The Court in this case held that "while there may be a right to terminate a contract at-will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy. "
This exception is recognized again in Coman v. Thomas Manufacturing where Coman was discharged for refusing to falsify logs that demonstrated the company's compliance with regulations set by the Department of Transportation. Coman v. Thomas Mfg. Co. 325 N. C. 172, 381 S. E. 2d 445 (1989). The Court upholds the Sides decision emphasizing that "it is in the best interest of the state on behalf of its citizens to encourage employees to refrain from violating public policy at the demand of their employers. " Id. at 11.
The Coman Court continues to define public policy as "the principle of law which holds that no citizen can lawfully do that which has a tendency to be injurious to the public or against that public good. " Id. (quoting Peterman v. International Brotherhood of Teamsters, 344 P. 2d 25 (1959)). Again in Amos v. Oakdale Knitting Co. the North Carolina Supreme Court held that employees were wrongfully discharged when fired in direct violation of public policy. Amos v. Oakdale Knitting Co. 331 N. C. 348, 416 S. E. 2d 166 (1992). The employees in Amos were fired after refusing to work for less than the statutory minimum wage.
Id. The Amos Court, while not attempting to come up with a definite list of what is and is not a violation of public policy, did determine that "at the very least public policy is violated when an employee is fired in contravention of express policy declarations contained the North Carolina General Statutes. " Id. at 353. In Phillips v. J. P. Stevens & Co. , Inc. , the plaintiff attempted to claim wrongful discharge under N. C. G. S. 143-422. 2 when her employment was terminated for her refusal to engage in sexual relations with her supervisors.
Phillips v. J. P. Stevens & Co., Inc. , 827 F. Supp. 349 (M. D. N. C. 1993). N. C. G. S. 143-422. 2 states: It 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 race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees. Furthermore in McLaughlin v. Barclays American Corp, where an employee was fired for acting in self-defense, claiming that this was a violation of public policy, the Court held that:
North Carolina cases which have used public-policy grounds to find exceptions to the at-will doctrine have involved allegations of the employee's being affirmatively instructed to violate the law. In each case, our courts focused on the potential harm to the public at large if those instructions were obeyed. Similar public-policy implications are not present [here]. We do not perceive the kind of deleterious consequences for the general public, if we uphold [defendant's] action, as might have resulted from decisions favorable, to the employers in Sides and Coman.
McLaughlin v. Barclays American Corp. , 95 N. C. App. at 306, 382 S. E. 2d at 840 (1989). There is no contention that Chris Snyder was, in fact, an employee at-will with Parks, Rich and Stone, P. L. L. C. The question to be considered is whether her termination was in violation of North Carolina public policy, allowing her claim to fall within the exception of the at-will employment doctrine as laid out by relevant case law. In application to Chris's situation it becomes difficult to draw parallels that would be favorable to a claim of wrongful discharge.
In Sides and Coman the employees were required to violate the law, taking affirmative action to do so, and their termination directly resulted from a refusal to comply. Sides v. Duke University, 74 N. C. App. 342, 328 D. R. 2d 826 (1985); Coman v. Thomas Mfg. Co. 325 N. C. 172, 381 S. E. 2d 445 (1989). Chris was never asked to affirmatively break the law or to "do that which has a tendency to be injurious to the public or against that public good. " Id. (quoting Peterman v. International Brotherhood of Teamsters, 344 P. 2d 25 (1959)).
Unlike Amos, no North Carolina General Statute was violated as a result of, or resulting in, Chris's termination. Amos v. Oakdale Knitting Co. 331 N. C. 348, 416 S. E. 2d 166 (1992). Phillips might have suggested that the North Carolina Court would at some point entertain the idea there is a cause of action for "wrongful discharge in violation of the public policy expressed in N. C. G. S. 143-422. 2. " Phillips v. J. P. Stevens & Co. , Inc. , 827 F. Supp. 349 (M. D. N. C. 1993). However, the subsequent case law in DeWitt held that the statute did not establish a claim under the "public policy exception" of the at-will employment doctrine.
DeWitt v. Mecklenburg County, 73 F. Supp. 2d 589 (W. D. N. C. 1999). And finally, the Court in McLaughlin makes a point, one that Rich could very likely use as a defense, in that the public policy that might have been violated in the termination of Chris's employment would not have "the kind of deleterious consequences for the general public… as might have resulted from decisions favorable, to the employers in Sides and Coman. " McLaughlin v. Barclays American Corp. , 95 N. C. App. at 306, 382 S. E. 2d at 840 (1989).