United States District Court, E.D. North Carolina, Eastern Division
C. DEVER, UNITED STATES 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, tortuous
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]. On May
2, 2019, the court granted Gerber and Boyd's partial
motion to dismiss, dismissed Miller's wrongful
constructive discharge claim, and dismissed Miller's
remaining claims against Boyd [D.E. 22]. On May 3, 2019,
Hardin moved to dismiss all claims against him for failure to
state a claim [D.E. 25] and filed a memorandum in support
[D.E. 26]. On May 28, 2019, Miller responded in opposition
[D.E. 29]. On June 10, 2019, Hardin replied [D.E. 31]. As
explained below, the court grants Hardin's motion to
is a subsidiary of Boyd, which operates non-franchised
collision repair centers throughout North America. See Compl.
[D.E. 21-1] ¶ 2. 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 Miller
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 these 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. ¶21.
complained to Weary, but Weary told Miller "that
[Miller] was just going to have to put up with it"
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. 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,
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), affd, 566 U.S. 30 (2012); Nemet
Chevrolet Ltd. v. Consumeraffairs.com. Inc., 591 F.3d
250, 255 (4th Cir. 2009); Giarratano v.
Tnhnsnn, 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.
Hardin's motion to dismiss Miller's tortuous
interference with contract claim, under North Carolina law, a
plaintiff must prove five elements to state a claim for
tortuous interference with contract: (1) a valid contract
between the plaintiff and a third-party that gives the
plaintiff a contractual right against the third-party, (2)
the defendant knows of the contract, (3) the defendant
intentionally induces the third-party not to perform the
contract, (4) the defendant acts without justification, and
(5) the defendant's conduct causes actual damages to the
plaintiff. See Krawiec v. Manly. 370 N.C. 602,
606-07, 811 S.E.2d 542, 546 (2018); Embree Constr. Grp.
v. Rafcor, Inc., 330 N.C. 487, 498, 411 S.E.2d 916, 924
(1992); United Labs., Inc. v. Kuvkendall, 322 N.C.
643, 661, 370 S.E.2d 375, 387 (1988); Benjamin v. Sparks, 173
F.Supp.3d 272, 289 (E.D. N.C. 2016); Clinical Staffing.
Inc. v. Worldwide Travel Staffing Ltd., 60 F.Supp.3d
618, 626-27 (E.D. N.C. 2013). Miller alleges that Hardin, by
assigning him more difficult hard-hits, removing him
from training sessions, and otherwise acting against
him because of his terminal cancer diagnosis,
induced Gerber, a third-party, not to perform its employment
contract with Miller when Miller decided to retire
Miller ended the employment relationship between himself and
Gerber, Miller has not plausibly alleged that Hardin's
actions induced Gerber not to perform the contract with
Miller. Miller does not identify any North Carolina court
that has held that a plaintiff who ends an employment
contract-even if the plaintiff alleges that he did so
involuntarily-has stated a plausible claim for tortuous
interference with contract. Cf Whitt v. Harris Teeter.
Inc.. 3 59 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) (holding that North Carolina does not recognize a
cause of action for constructive wrongful discharge in
violation of public policy); Clark v. United Emergency
Servs.. Inc.. 189 N.C.App. 787, 661 S.E.2d 55, 2008 WL
1723229, at *4-5 (Apr. 15, 2008) (unpublished table
decision); Armitage v. Biogen Inc., No. 1:17CV1133,
2019 WL 1789909, at *8 (M.D. N.C. Apr. 24, 2019)
(unpublished); Perry v. Diversified Wood Prods.,
Inc., No. 2:16-CV-84-D, 2018 WL 3945933, at *7 (E.D.
N.C. Aug. 16, 2018) (unpublished). This court declines to
expand the doctrine of tortious interference with contract
under North Carolina law. See Time Warner
Entm't-Advance/Newhouse P'ship v. Carteret-Craven
Elec. Membership Corp., 506 F.3d 304, 314-15 (4th Cir.
2007); Wade v. DanekMed., Inc., 182F.3d 281, 286
(4th Cir. 1999). Thus, Miller has not plausibly alleged that
Hardin intentionally induced Gerber not to perform its
contract with Miller. Accordingly, the court grants
Hardin's motion to dismiss and dismisses the claim.
Hardin's motion to dismiss Miller's intentional
infliction of emotional distress ("IIED") claim,
under North Carolina law, a plaintiff must plausibly allege
that (1) the defendants engaged in extreme and outrageous
conduct, (2) the conduct was intended to cause severe
emotional distress, and (3) the conduct in fact caused severe
emotional distress. See Waddle v. Sparks, 331 N.C.
73, 82, 414 S.E.2d 22, 27 (1992). To be considered
"extreme and outrageous," the conduct must be
"so outrageous in character, and so extreme in degree,
as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized
community." Hogan v. Forsvth Country Club Co.,79 N.C.App. 483, 493, 340 S.E, 2d 116, 123 (1986) (quoting
Restatement (Second) of Torts § 46 cmt. d (1965)).