United States District Court, E.D. North Carolina, Southern Division
TERRENCE W. BOYLE CHIEF UNITED STATES DISTRICT JUDGE
cause comes before the Court on defendant's motion to
dismiss plaintiffs third claim for relief. Plaintiff has
responded, defendant has replied, and the matter is ripe for
ruling. For the reasons that follow, defendant's motion
initiated this action against defendant in New Hanover
County, North Carolina Superior Court alleging claims for
violation of the Age Discrimination in Employment Act, 29
U.S.C. § 621, and wrongful discharge in violation of
public policy, specifically the North Carolina Equal
Employment Practices Act, N.C. Gen. Stat. § 143-411.1,
et seq. Defendant removed plaintiffs action to this
Court on the basis of its federal question jurisdiction. 28
U.S.C. § 1331; 1441. Plaintiff then filed an amended
complaint, adding a third claim alleging wrongful discharge
in violation of public policy, specifically N.C. Gen. Stat.
seeks dismissal of plaintiff s third claim for relief for
failure to state a claim upon which relief can be granted
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
12(b)(6) motion tests the legal sufficiency of the complaint.
Papasan v. Allain, 478 U.S. 265, 283 (1986). When
acting on a motion to dismiss under Rule 12(b)(6), "the
court should accept as true all well-pleaded allegations and
should view the complaint in a light most favorable to the
plaintiff." Mylan Labs., Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir.1993). A complaint must allege
enough facts to state a claim for relief that is facially
plausible. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007). Facial plausibility means that the facts
pled "allow the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged," and mere recitals of the elements of a cause
of action supported by conclusory statements do not suffice.
. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A
complaint must be dismissed if the factual allegations do not
nudge the plaintiffs claims "across the line from
conceivable to plausible." Twombly, 550 U.S. at
s amended complaint alleges as follows. Plaintiff is a
registered nurse licensed by the State of North Carolina. [DE
19] Amd. Compl. ¶ 11. Plaintiff began working for
defendant as a registered nurse/nurse injector in 2000 and
remained in that position as an employee from 2000-2005.
Id. ¶I3. In 2006, plaintiffincorporated a
private entity under which she would perform professional
nursing services, remaining on site with defendant as an
independent contractor rather than an employee. Id.
Plaintiff returned to her position as an employee in 2008
after defendant raised concerns about conflicts of interest.
Id. After approximately six months, she left
defendant's employ to pursue other opportunities.
Id. Plaintiff was re-hired as an employee in the
same position she had previously held on March 1, 2016.
Id. ¶ 12. Plaintiff was discharged from her
employment with defendant on June 20, 2017; plaintiff was
fifty-five years old when she was discharged. Id.
¶¶ 18, 12.
alleges that although she performed all of her job duties
responsibly and competently, defendant did not allow
plaintiff to attend any of the training sessions that were
being offered to younger nurses on staff. Id.
¶¶ 14, 17. Plaintiff was informed by
defendant's spa manager on April 18, 2017, that the
reason another nurse was receiving training in plaintiffs
practice area was because the doctors were looking for
someone younger to fill plaintiff s position. Id.
¶ 16. After her termination, plaintiffs position was
filled by another registered nurse/nurse injector who was
approximately twenty-eight years old and had less experience
and fewer qualifications than plaintiff. Id.
North Carolina law, an at-will employee generally may not
raise a wrongful discharge claim. Combs v. City Elec.
Supply Co., 203 N.C.App. 75, 79 (2010). There is a
public policy exception to this general rule, however, where
an employee's termination is contrary to North Carolina
public policy or prohibited by statute. Kurtzman v.
Applied Analytical Indus., 347 N.C. 329, 331 (1997).
"In order to maintain such a claim, . . .the plaintiff
must allege 'specific conduct by a defendant that
violated a specific expression of North Carolina public
policy . ...'" Home v. Cumberland Cty. Hosp.
Sys., Inc., 228 N.CApp. 142, 146 (2013) (quoting
Considine v. Compass Grp. USA, Inc., 145 N.CApp.
314, 321-22 (2001)).
alleges that her termination violated North Carolina public
policy as reflected in N.C. Gen. Stat. § 90-401, which
A health care provider shall not financially compensate in
any manner a person, firm, or corporation for recommending or
securing the health care provider's employment by a
patient, or as a reward for having made a recommendation
resulting in the health care provider's employment by a
patient. No. health care provider who refers a patient of
that health care provider to another health care provider
shall receive financial or other compensation from the health
care provider receiving the referral as a payment solely or
primarily for the referral. This section shall not be
construed to prohibit a health care provider's purchase
of advertising which does not entail direct personal contact
or telephone contact of a potential patient.
N.C. Gen. Stat. § 90-401. Plaintiff alleges that she is
a non-licensee with whom defendant, by and through its
physician licensees, shared revenue on a percentage basis in
the form of commissions, constituting fee-splitting in
violation of the above-recited public policy. Amd. Compl.
¶ 45. Plaintiff further alleges that she was "fired
in furtherance of an unlawful and unethical wage practice
which provided financial compensation in the form of
commissions and referral fees . . . in violation of N.C. G.S.
§ 90-401 ...." Id. ¶ 58.
more than a mere statutory violation is required to sustain a
claim of wrongful discharge under the public-policy
exception. . . . [T]he termination itself must be motivated
by an unlawful reason or purpose that is against public
policy." Garner v. Rentenbach Constructors
Inc.,350 N.C. 567, 571-72(1999). Even assuming, without
deciding, that N.C. Gen. Stat. §, 90-401 demonstrates a
clear public policy of the State of North Carolina against
the payment of commissions to nurses under these
circumstances, plaintiff has failed to ...