United States District Court, E.D. North Carolina, Eastern Division
C. DEVER III DISTRICT JUDGE.
December 31, 2018, Michael Dewayne Miller ("Miller"
or "plaintiff') filed a complaint in Craven County
Superior Court against Gerber Collision (Northeast), Inc.
("Gerber"), Boyd Group (U.S.), Inc.
("Boyd"), and Christopher Hardin
("Hardin"; collectively "defendants")
[D.E. 21-1]. Miller alleges disability discrimination in
violation of the Americans with Disabilities Act
("ADA") against Gerber and Boyd, tortious
interference with contract against Hardin, intentional
infliction of emotional distress against all defendants, and
wrongful constructive discharge in violation of public policy
against Gerber and Boyd. See Id. On January 30,
2019, defendants removed the action to this court [D.E. 1].
February 6, 2019, Gerber and Boyd moved to dismiss
Miller's wrongful constructive discharge claim and all
claims against Boyd for failure to state a claim [D.E. 11]
and filed a memorandum in support [D.E. 12]. On the same
date, Gerber and Boyd answered the complaint [D.E. 10]. On
February 27, 2019, Miller responded in opposition [D.E. 15].
On March 12, 2019, Boyd and Gerber replied [D.E. 16]. As
explained below, the court grants defendants' partial
motion to dismiss.
operates non-franchised collision repair centers in North
America. See Compl. [D.E. 21-1] ¶ 2. Gerber, Boyd's
subsidiary, operates in five Canadian provinces and nineteen
states. See id. Hardin is the district manager for
the location in Havelock, North Carolina. See Id.
¶¶ 6, 8.
November 1, 2016, Gerber hired Miller for the position of
Lead Collision Technician at the Havelock location. See
Id. ¶ 8. Miller alleges that he was "an
excellent employee" who "receiv[ed] the highest
customer service ratings," was responsible for opening
the repair center at 6 a.m., and often worked fifteen hours
per day. Id. ¶ 9. In July 2017, Miller learned
that he had Stage IV cancer and informed Hardin of his
diagnosis and need for treatment. See Id.
Havelock shop manager, Philip Weary ("Weary"),
initially supported Miller. See Id. ¶ 12. After
Weary returned from a regional meeting, however, Miller
alleges that Weary announced to the employees that management
wanted Miller "gone" because of his cancer. See
Id. ¶¶ 12-13. Weary also told Miller that
Hardin instructed him to pull Miller from all training
sessions. See Id. ¶¶ 14, 16. All other
technicians attended training sessions. See Id.
¶ 16. On one occasion, Miller alleges that the training
instructor arrived and immediately asked where the "sick
guy" (i.e., Miller) was. See id.
also alleges that Weary and Hardin assigned Miller only very
difficult "hard-hits" collision repair jobs after
his diagnosis. See Id. ¶ 17. Normally,
defendants assigned hard-hits among the shop technicians
because the repairs were difficult and less profitable for
the individual technician. See Id. Miller alleges
that defendants assigned him hard-hits to harass him
and to reduce his income. See Id. ¶ 18. When
Miller asked the Havelock location's estimator why he had
been assigned all of the hard-hits, the estimator told Miller
that he had been instructed to do so. See Id.
complained to Weary, but Weary told Miller "that
[Miller] was just going to have to put up with if because
Miller needed health insurance. Id. ¶ 20. In
December 2017, Miller complained to the new shop manager,
Mark Cooper ("Cooper"), that defendants were
forcing him out. See Id. ¶ 24. Miller alleges
that Cooper replied that employees are tools and that, when
tools wear out, they are replaced. See Id. ¶25.
On December 5, 2017, Miller resigned. See Id.
¶¶ 26. 30-34.
motion to dismiss under Rule 12(b)(6) tests the
complaint's legal and factual sufficiency. See
Ashcroft v. Iqbal. 556 U.S. 662, 677-80 (2009); Bell
Atl. Corp. v. Twombly. 550 U.S. 544, 554-63 (2007);
Coleman v Md. Court of Appeals. 626 F.3d 187, 190
(4th Cir. 2010), aff'd, 566 U.S. 30 (2012); Nemet
Chevrolet Ltd. v. Consumerafrairs.com. Inc., 591 F.3d
250, 255 (4th Cir. 2009); Giarratano v Johnson, 521
F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6)
motion, a pleading "must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face." Iqbal. 556 U.S. at 678
(quotation omitted); see Twombly, 550 U.S. at 570;
Giarratano, 521 F.3d at 302. In considering the
motion, the court must construe the facts and reasonable
inferences "in the light most favorable to the
[nonmoving party]." Massey v. Ojaniit, 759 F.3d
343, 352 (4th Cir. 2014) (quotation omitted); see
Clatterbuck v. City of Charlottesville, 708 F.3d
549, 557 (4th Cir. 2013), abrogated on other
grounds by Reed v. Town of Gilbert. 135 S.Ct.
2218 (2015). A court need not accept as true a
complaint's legal conclusions, "unwarranted
inferences, unreasonable conclusions, or arguments."
Giarratano. 521 F.3d at 302 (quotation omitted); see
Iqbal, 556 U.S. at 678-79. Rather, a plaintiffs
allegations must "nudge[ ] [his] claims,"
Twombly, 550 U.S. at 570, beyond the realm of
"mere possibility" into "plausibility."
Iqbal, 556 U.S. at 678-79.
complaint, Miller alleges wrongful constructive discharge in
violation of North Carolina public policy. See Compl. [D.E.
21-1] ¶¶ 76-84. Defendants respond that North
Carolina does not recognize a cause of action for wrongful
constructive discharge in violation of public policy. See
Whitt v. Harris Teeter. Inc., 359 N.C. 625, 625, 614
S.E.2d 531, 532 (2005) (per curiam) (adopting dissenting
opinion at 165 N.C.App. 32, 43-50, 598 S.E.2d 151, 159-63
(2004) (McCullough, J., dissenting)).
court must predict how the Supreme Court of North Carolina
would rule on this disputed state-law issue. See Twin
City Fire Ins. Co. v. Ben Arnold-Sunbelt Beverage Co. of
S.C.,433 F.3d 365, 369 (4th Cir. 2005). In doing so,
the court must look first to opinions of the Supreme Court of
North Carolina. See Stahle v. CTS Corp., 817 F.3d
96, 100 (4th Cir. 2016). If there are no governing opinions
from that court, this court may consider the opinions of
North Carolina Court of Appeals, treatises, and "the
practices of other states." Twin City Fire Ins.
Co., 433 F.3d at 369 (quotation omitted). In predicting how
the highest court of a state would address an issue, this
court "should not create or expand a [s]tate's
public policy." Time Warner
Entm't-Advance/Newhouse P'ship v. Carteret-Craven
Elec. Membership Corp.,506 F.3d 304, 314 (4thCir. 2007)
(alteration and quotation omitted); see Wade v. Danek
Med., Inc.,182 F.3d 281, 286 (4th Cir. 1999). Moreover,
in predicting how the highest court of a state would address