United States District Court, W.D. North Carolina, Charlotte Division
FRANK D. WHITNEY, Chief District Judge.
THIS MATTER is before the Court on Defendant's Partial Motion to Dismiss Plaintiff's Amended Complaint (Doc. No. 10); Defendant's Request for Preliminary Hearing (Doc. No. 13); and Plaintiff's Motion for Leave to File Second Amended Complaint (Doc. No. 15). The parties have fully briefed the motions, and these matters are now ripe for disposition.
Plaintiff filed the instant action in August 2014 in the North Carolina General Court of Justice, Mecklenburg County Superior Court. (Doc. No. 1-3). On September 19, 2014, Defendant removed the case to federal court, where it was assigned to the undersigned. (Doc. No. 1). Thereafter, with Defendant's consent, Plaintiff filed an Amended Complaint on October 6, 2014. (Doc. Nos. 7, 8). According to the Amended Complaint, Plaintiff was employed by Defendant as a regional sales manager for approximately five years. (Doc. No. 8, ¶¶ 2, 13-14). Plaintiff's employment "required her to travel frequently by airplane to meet with clients and to manage the accounts Defendant had with outside vendors." (Doc. No. 8, ¶ 15). Plaintiff contends that she carried out her work without incident until January 15, 2009, when she was a passenger on the "famous Miracle on the Hudson' flight... [which] was forced to crash-land in the Hudson Bay...." (Doc. No. 8, ¶ 16). Plaintiff states that, as a result of the crash, she suffered psychological trauma, a condition which ultimately caused her to file a Workers' Compensation claim in October 2012 based on the psychological trauma related to her continued work travel for Defendant. (Doc. No. 8, ¶¶ 17, 26). A month after filing her Workers' Compensation claim, Defendant allegedly informed Plaintiff that her job was being moved from North Carolina to New York; however, prior to the deadline for Plaintiff to accept the relocation or an alternative severance package, Plaintiff took a leave of absence, which was set to last until June 18, 2013. (Doc. No. 8, ¶¶ 29, 31). In early June 2013, while Plaintiff was on her leave of absence, Defendant allegedly sent a letter to Plaintiff requesting notice of her intent to return to work and her decision about the relocation, as well as an option for Plaintiff to submit a request for reasonable accommodation. (Doc. No. 8, ¶ 33). Plaintiff states that she promptly submitted a request for reasonable accommodation, along with a request to extend her leave of absence for an additional six months, and that she received a letter from Defendant's local human resources manager acknowledging Defendant's receipt of her request. (Doc. No. 8, ¶¶ 33-34). Then, on or about July 13, 2013, Plaintiff received a form letter for COBRA, which she claims to have been her first notice of the termination of her employment with Defendant. (Doc. No. 8, ¶ 36).
Based on events that occurred during her employment with Defendant, and based on the termination of this employment, Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") and was issued a right to sue letter. (Doc. No. 8, ¶ 38).
After removing the present case to federal court based on diversity and federal question jurisdiction (Doc. No. 1), Defendant filed the present motion to dismiss Plaintiff's claim for wrongful discharge in violation of North Carolina public policy, asserting that this Court lacks subject matter jurisdiction over this claim. (Doc. No. 10). The Court will now address this Motion, as well as Defendant's Request for Preliminary Hearing (Doc. No. 13) and Plaintiff's Motion for Leave to File Second Amended Complaint (Doc. No. 15).
I. Plaintiff's Motion for Leave to File Second Amended Complaint
In addition to allowing a party to amend its pleadings once as a matter of course, the Federal Rules of Civil Procedure ("FRCP") allow a party to amend its pleading with the opposing party's written consent or with the court's leave. See Fed.R.Civ.P. 15(a)(2). Under FRCP 15, a "motion to amend should be denied only where it would be prejudicial, there has been bad faith, or the amendment would be futile." Nourison Rug Corporation v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008) (citing HCMF Corporation v. Allen, 238 F.3d 273, 276-77 (4th Cir. 2001)); see also Foman v. Davis, 371 U.S. 178, 182 (1962). However, "the grant or denial of an opportunity to amend is within the discretion of the District Court." Pittston Co. v. United States, 199 F.3d 694, 705 (4th Cir. 1999) (quoting Foman, 371 U.S. at 182)).
In the present case, Plaintiff has amended her complaint once as a matter of course. (Doc. No. 8). Plaintiff now seeks the Court's leave to amend her Amended Complaint to alter the public policy bases for her fourth cause of action. (Doc. No. 15). Specifically, Plaintiff seeks to replace her claim based on the public policy set forth in North Carolina's Persons with Disabilities Protection Act ("NCPDPA") with the public policy set forth in North Carolina's Equal Employment Practices Act ("NCEEPA") and to assert the North Carolina Worker's Compensation Act ("NCWCA") as an additional basis for her wrongful discharge claim. (Doc. No. 15; Doc. No. 15-1, ¶¶ 58, 59). Defendant consents to Plaintiff's proposed amendment to substitute a claim based on the public policy of the NCEEPA for that of the NCPDPA but opposes Plaintiff's request to add the NCWCA as an additional basis for her wrongful discharge claim. (Doc. No. 18).
Because FRCP 15(a)(2) allows a party to amend its pleading with the opposing party's written consent, and based on Defendant's consent to Plaintiff's motion to amend her NCPDPA claim, Plaintiff is entitled to amend this provision of her Amended Complaint - i.e., Plaintiff may amend Paragraph 58 of her Amended Complaint as provided in her Motion for Leave to File Second Amended Complaint.
However, based on the Court's finding below that Plaintiff's REDA-based claim is barred, the Court finds Plaintiff's proposed amendment to add the public policy of the NCWCA as a basis for her wrongful discharge claim to be futile. In her proposed amendment to her Amended Complaint, Plaintiff alleges that she was terminated for filing a workers' compensation claim in violation of public policy. (Doc. No. 15-1, ¶ 62). Plaintiff asserts that "the filing for workers' compensation benefits is a legally protected activity, " (Doc. No. 15-1, ¶ 59), and the Court agrees. See Nguyen v. Austin Quality Foods, Inc., 974 F.Supp.2d 879, 897 (E.D. N.C. 2013) ("The filing of a workers' compensation claim is a legally protected activity that may form the basis for a wrongful discharge claim."). Moreover, like REDA, the NCWCA is a source of policy establishing an employee's legally protected right of pursuing a workers' compensation claim. Id . (quoting Whitings v. Wolfson Casing Corp., 173 N.C.App. 218, 222, 618 S.E.2d 750, 753 (2005)).
However, while "a plaintiff may state a claim for wrongful discharge in violation of public policy where he or she alleges the dismissal resulted from an assertion of rights under the Workers' Compensation Act, " id. (quoting Whitings at 221, 618 S.E.2d at 753), "Plaintiff's wrongful termination claim is dependent upon the viability of [her] REDA claim, " id. (citing Smith v. Computer Task Group, Inc., 568 F.Supp.2d 603, 621 (M.D. N.C. 2008) (additional citation omitted)). Thus, where, as here, a plaintiff's wrongful termination claim rests on the public policy underlying REDA - "which constitutes the North Carolina General Assembly's position on worker's compensation-based retaliation" Smith at 621 (citing Salter v. E & J Healthcare, Inc., 155 N.C.App. 685, 696, 575 S.E.2d 46, 53 (2003)) - her wrongful termination claim rises or falls on the viability of her REDA-based claim. See id. (citing Johnson v. Pepperidge Farm, Inc., No. 93-1386, 1994 WL 118100, *4 (4th Cir. Apr. 4, 1994)) (additional citations omitted). Therefore, because the Court finds that Plaintiff's REDA-based wrongful discharge claim must be dismissed based on Plaintiff's failure to exhaust her administrative remedies, Plaintiff's proposed amendment to add the public policy of the NCWCA must be denied, as this claim would necessarily fail along with the dismissal of her REDA-based wrongful discharge claim.
Therefore, after careful consideration of the record and motions filed in this case, and as explained above, Plaintiff's Motion for Leave to File Second Amended Complaint (Doc. ...