United States District Court, W.D. North Carolina, Charlotte Division
Cogburn Jr. United States District Judge
MATTER is before the court on defendant's Motion
to Dismiss Third Cause of Action in Amended Complaint for
Wrongful Discharge Under North Carolina Law. Having
considered defendant's motion and reviewed the pleadings,
the court enters the following Order.
a former employee of defendant, filed suit after the Equal
Opportunity Employment Commission (“EEOC”)
declined to pursue charges on her behalf. In a letter dated
November 13, 2017, which plaintiff's counsel received on
November 15, 2017, the EEOC notified plaintiff of their
decision and of her right to sue. Plaintiff filed a request
for an extension under North Carolina Rule of Civil Procedure
3(a) on February 9, 2018. The clerk issued a summons the same
day, and plaintiff proceeded to file suit in Mecklenburg
County Superior Court on February 20, 2018. The matter was
removed to this court by defendant on March 22, 2018 on the
basis of federal question jurisdiction. In her original
complaint, plaintiff alleges causes of action based on Title
VII of the Civil Rights Act of 1964, as amended, 28 U.S.C.
§ 2000e et. seq. (“Title VII”) and
Section 1981 of the Civil Rights Act of 1866 against
April 16, 2018 plaintiff amended her complaint to add another
claim under North Carolina public policy and to dismiss her
claims without prejudice as to a prior defendant, Cyril Bath
Company, pursuant to a stipulated agreement (#16).
instant motion is limited solely to dismissal of the North
Carolina public policy claim against defendant. Defendant
argues that said claim under the Occupational Safety and
Health Act of North Carolina (“OSHANC”) is
completely unrelated to the facts at issue in this matter, as
plaintiff's claims of racial discrimination and
retaliation have nothing to do with the occupational injuries
and illnesses that OSHANC is designed to cover, and thus
plaintiff's public policy claim fails. Plaintiff argues
that OSHANC contains a discrimination prohibition that is
perfectly relevant to the facts at issue, and that her
wrongful discharge claim should survive.
motion to dismiss “challenges the legal sufficiency of
a complaint.” Francis v. Giacomelli, 588 F.3d
186, 192 (4th Cir. 2009). To survive such motion,
“a complaint must contain 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
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
The plausibility standard requires “more than a sheer
possibility that a defendant has acted unlawfully, ” as
“threadbare recitals of the elements of a cause of
action supported by mere conclusory statements” are
insufficient to defeat a Rule 12(b)(6) motion. Id.;
see also Twombly, 550 U.S. at 547 (complaints will
be dismissed when plaintiffs “have not nudged their
claims across the line from conceivable to plausible”);
Aziz v. Alcolac, Inc., 658 F.3d 388, 391
(4th Cir. 2011).
“a short and plain statement of the claim showing that
the pleader is entitled to relief” is required.
Fed.R.Civ.P. 8(a)(2). Such statement does not require
“specific facts, ” but need only give defendants
“fair notice of what the . . . claim is and the grounds
upon which it rests.” Erickson v. Pardus, 551
U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at
544). For purposes of the motion, the factual allegations in
the complaint are accepted as true and viewed in the light
most favorable to the non-moving party, Coleman v. Md.
Court of Appeals, 6266 F.3d 187, 189 (4th
Cir. 2010), though the court need not accept
“unwarranted inferences” or “unreasonable
arguments.” Giarratano v. Johnson, 521 F.3d
298, 302 (4th Cir. 2008). The court also notes
that “[a] Rule 12(b)(6) motion ‘does not resolve
contests surrounding the facts, the merits of a claim, or the
applicability of defenses.'” Pisgah
Laboratories, Inc. v. Mikart, Inc., 2015 WL 996609, at
*2 (W.D. N.C. Mar. 5, 2015) (quoting Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir.
wrongful discharge, such claims must be pled with
specificity. Gillis v. Montgomery Cty. Sheriff's
Dept., 191 N.C.App. 377, 379 (2008). Since the tort of
wrongful discharge is an exception to the general rule that
at-will employees may be discharged without reason, to state
a claim for wrongful discharge in violation of public policy
under North Carolina law, a claimant has two options. First,
a claimant may plead facts that her discharge violates public
policy broadly, in that the employer has done something in
contravention of “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 the public good.”
Coman v. Thomas Mfg. Co., Inc., 325 N.C. 172, 175 n.
2 (1989). Alternately, a claimant has the burden of pleading
that her dismissal occurred for a reason that violates
“express policy declarations contained in the North
Carolina General Statutes.” Efird v. Riley,
342 F.Supp.2d 413, 428 (M.D. N.C. 2004) (citing Amos v.
Oakdale Knitting Co., 331 N.C. 348, 353 (1992)); see
also Salter v. E & J Healthcare, Inc., 155 N.C.App.
685, 693 (2003).
defendant argues that plaintiff's North Carolina public
policy claim cannot stand, as OSHANC covers workplace injury
and illness claims and not retaliation or discrimination
claims. Plaintiff counters that OSHANC contains an
antidiscrimination provision, making plaintiff's third
cause of action perfectly viable as a violation of an express
policy declaration under North Carolina law.
expressly states its legislative purpose as ensuring
“safe and healthful working conditions” and
“to preserve our human resources” through various
means, including encouraging businesses and employees to
reduce safety and health hazards, providing safety standards
and training, and enforcing safer practices. See
N.C. Gen. Stat. § 95-126. As such, it is clear that
OSHANC's purpose is to protect employee safety and
health; indeed, such a statement appears at least six times
in the statute. Id. OSHANC also includes an
antidiscrimination provision that opposes discrimination by
reason of “sex, race, ethnic origin, or by reason of
religious affiliation.” N.C. Gen. Stat. § 95-151.
However, OSHANC also states that such discrimination is
limited to employers, employees, or others who are
“related to the administration of this Article”
as opposed to a more general statement. Id.
the court agrees with defendant that plaintiff has failed to
properly state a claim or facts in support of such a claim.
In her third cause of action in her Amended Complaint (#17),
plaintiff essentially reiterates her allegations from her two
previous causes of action (violations of Title VII of the
Civil Rights Act of 1964 and of §1981 of the Civil
Rights Act of 1866, respectively). However, plaintiff fails
to plead facts with any specificity, and instead simply
alleges that defendant has violated North Carolina public
policy “by terminating plaintiff because she reported
and opposed race and ethnic origin discrimination” in
violation of OSHANC. Plaintiff also points to a claimant in a