MEMORANDUM OF DECISION

MAX O. COGBURN, JR., United States Magistrate Judge.

THIS MATTER is before the court in accordance with 28, United States Code, Section 636(c) and upon defendants' Motion for Summary Judgment filed July 5, 2000.

I. Procedural History

In accordance with the Local Rules of this court and the Pretrial Order, plaintiff's memorandum of law in response to defendant's Motion for Summary Judgment was due to be filed not later than July 24, 2000. On August 1, 2000, this court entered a Show Cause Order requiring plaintiff to show excusable neglect for such missed deadline. On August 11, 2000, plaintiff's counsel responded to the court's Order and indicated that the response was not filed due to his failure to properly supervise office staff and that the brief would be filed not later than August 15, 2000. Based upon such representations, this court granted plaintiff leave on August 18, 2000, to file his brief out of time. Fourteen days have passed since that deadline, and no brief has been filed. Finally, the court held open decision on the pending Motion for Summary Judgment until the Final Pretrial Conference, which was calendared for August 29, 2000. Counsel for plaintiff failed to attend that hearing or inform the court or opposing counsel that he would not attend.

II. Factual Background

Defendants, who are associated with the Presbyterian Church (USA), provide a nonprofit residential treatment facility for children in Avery County, North Carolina. On October 27, 1997, plaintiff was employed by defendants as a Child/Youth Care Worker I. At the time he was hired, plaintiff was 51 years old. The duties of a Child/Youth Care Worker I included living in a residential cottage with children, caring for the children's educational and counseling needs, record keeping and communication, and, on occasion, restraining children when they became emotionally upset or out of control. In addition to his job with defendants, plaintiff was also employed by the North Carolina National Guard and performed duties as a cook.

On March 11, 1998, while assisting in a children's basketball game, plaintiff fell and injured his back. A workers' compensation claim was filed, and an investigation of claim ensued. A week after the fall, plaintiff presented at a medical doctor's office for treatment, at which time he was diagnosed with low-back strain and temporarily taken out of work. While no permanent injuries from the fall were diagnosed, the medical doctor found through x-rays that plaintiff suffered from chronic changes indicating degenerative arthritis. Less than a month after the accident, the medical doctor released plaintiff to return to work. Plaintiff worked for a week and then missed his next scheduled work week in April 1998. Plaintiff repeated this pattern in May 1998. After receiving a letter of reprimand concerning his unexcused absences, plaintiff secured a note from a chiropractor limiting his ability to lift and prohibiting him from performing child restraints.

During June 1998, defendants assigned plaintiff light duty consistent with his chiropractor's opinion. Near the end of June 1998, plaintiff's direct supervisors prepared an evaluation of plaintiff's work, discussed his unexcused absences, and noted that he had reported for duty with his guard unit and performed his work as a cook on two occasions since the accident. Based upon his chiropractor's determination that plaintiff was unable to perform an essential element of his Child/Youth Care Worker I, administering child restraints, defendants terminated his employment in that position. Defendants met with plaintiff to determine what other jobs he could perform with his impairment. Defendants offered plaintiff a position as a contract case worker on June 30, 1998, which he declined on July 2, 1998, and he was then discharged.

Following his discharge, plaintiff filed a complaint of retaliation based upon his having filed a workers' compensation claim with the North Carolina Department of Labor. He requested a right-to-sue letter prior to investigation. No claim of discrimination was ever filed with the Equal Employment Opportunity Commission ("EEOC"). Plaintiff filed this action on April 19, 1999, alleging claims for retaliatory discharge based upon his National Guard employment, age discrimination, retaliation for filing a workers' compensation claim, breach of contract, fraud and defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress.

III. Standard

On a motion for summary judgment, the moving party has the burden of production to show that there are no genuine issues for trial. Defendants have satisfied that burden. Upon the moving party's meeting that burden, the nonmoving party has the burden of persuasion to establish that there is a genuine issue for trial. Plaintiff has not met his burden.

When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving [sic] party, there is no "genuine issue for trial."

By reviewing substantive law, the court may determine what matters constitute material facts. Id. "Only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." Id., at 248. A dispute about a material fact is "genuine" only if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Id.

[T]he court is obliged to credit the factual asseverations contained in the material before it which favor the party resisting summary judgment and to draw inferences favorable to that party if the inferences are reasonable (however improbable they may seem).

IV. Procedural Default

Plaintiff, represented by counsel, has an affirmative duty to prosecute his case. Despite entry of an Order to show cause and representations made to the court that briefs would be filed, counsel for plaintiff has failed to respond in any manner to defendants' motion or attend a properly noticed hearing. In accordance with Rule 41, Federal Rules of Civil Procedure, the court will dismiss this action with prejudice for failure to prosecute.

V. Substantive Discussion

In the alternative, the court has also considered the merits of defendants' Motion for Summary Judgment. Review of plaintiff's claims alongside defendants' arguments and proffered evidence reveals that no genuine issues of material fact remain and that defendants are entitled to judgment as a matter of law.

1. Federal and State Veteran's Re-Employment Rights Act Claim

For the purposes of the pending motion, plaintiff's state and federal law claims based upon his status as a National Guardsman are identical. Both laws prohibit employers from taking adverse employment action against guardsmen such as discharge or demotion, motivated by their reserve status. Monroe v. Standard Oil Co., 452 U.S. 549 (1981). If a plaintiff can show that an adverse employment action was motivated by guard status, the burden shifts to the employer to show that the action took place for good cause, in the absence of guard or reserve status. Plaintiff has made no showing, and defendants have shown that plaintiff's termination was based solely upon his insistence that he could no longer perform an essential duty of his position, administering child restraints. Summary judgment will be granted to defendants on this claim.

2. Retaliatory Discharge Based Upon Age Discrimination

This court lacks jurisdiction over plaintiff's claim under the Age Discrimination in Employment Act ("ADEA") because plaintiff failed to first pursue the claim administratively with the EEOC. It further appearing that more than 180 days have passed since the last alleged act of discrimination and that no administrative claim was ever filed, the dismissal will be with prejudice.

3. Retaliatory Discharge Based Upon Filing a Workers' Compensation Claim

This court has supplemental jurisdiction over this state-law claim. To make out a prima facie case under North Carolina's "Retaliatory Employment Discrimination Act," plaintiff must, at least, present some evidence which shows a pattern of conduct or a close temporal relationship between protected conduct and adverse employment action. Plaintiff has made no showing of a pattern of conduct, and defendants' evidence that no employee of theirs has ever been terminated for filing a workers' compensation claim is not rebutted. As to temporal proximity, plaintiff's employment was terminated 100 days after he made the claim. Review of North Carolina law reveals that even 90 days is not considered to be a close temporal connection. Shaffner v. Westinghouse Elec. Corp., 101 N.C. App. 213 (1990). Having failed to satisfy his burden, plaintiff's state-law claim will be dismissed with prejudice.

4. Breach of Contract

North Carolina has long held that a claim for breach of contract will not lay where a plaintiff, as here, alleges only a breach of an agreement for permanent employment or employment for so long as that plaintiff performs satisfactorily. Tuttle v. Kernersville Lumber Co., 263 N.C. 216 (1964). In addition, policy and procedural manuals do not create an employment contract in North Carolina. Walker v. Westinghouse Elec. Corp., 77 N.C. App. 253 (1985), cert. denied, 315 N.C. 597 (1986). The only evidence presented on the issue indicates that plaintiff signed an employment application in which he agreed that he was an at-will employee and had no employment contract. Defendants are entitled to judgment as a matter of law, and this claim will be dismissed with prejudice.

5. Fraud and Defamation

Plaintiff has made no allegations that would support a claim of fraud under North Carolina law. Such claim will be dismissed with prejudice for plaintiff's failure to state a cognizable claim under Rule 12 and failure to provide a supporting brief under Rule 56.

As to plaintiff's claim for defamation, it is apparently based upon statements and testimony rendered at a hearing before the North Carolina Employment Security Commission. It is a matter of well-settled law in North Carolina that statements made in judicial and quasi-judicial proceedings are not actionable as defamation. Based upon absolute privilege, plaintiff's defamation claims will be dismissed with prejudice and judgment rendered accordingly.

6. Intentional Infliction of Emotional Distress

Plaintiff has also asserted a claim for intentional infliction of emotional distress, which is governed by the laws of the State of North Carolina. This court's jurisdiction over that claim is pursuant to statutory supplemental jurisdiction, which provides that a federal court's original jurisdiction extends to nonfederal claims when the federal question is substantial and the claims asserted could be brought in one proceeding. United Mine Workers v. Gibbs, 383 U.S. 715, 727 (1966).

The elements of the tort are "(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress." Hogan v. Forsyth Country Club, 79 N.C. App. 483, 488,disc. rev. denied, 317 N.C. 334 (1986). "It is a question of law for the court to determine, from the materials before it, whether the conduct complained of may reasonably be found to be sufficiently outrageous as to permit recovery." Id., at 490.

For purposes of ruling on defendants' motion, the court has resolved any disputed facts in plaintiff's favor. Without doubt, plaintiff's allegations do not describe conduct that "exceed[ed] all bounds of decency," West v. King's Dep't Store, Inc., 365 S.E.2d 621, 625 (N.C. 1988); and the conduct described cannot be "`regarded as atrocious, and utterly intolerable in a civilized community.'" Wagoner v. Elkin City School Bd. of Educ., 440 S.E.2d 119, 123 (N.C.Ct.App. 1994) (citation omitted). Finally, there is no evidence that plaintiff's normal activities were adversely affected. Waddle v. Sparks, 414 S.E.2d 22, 27 (N.C. 1992). As a matter of law, neither the acts alleged by plaintiff nor his resulting emotional distress (if any) and physical ailments (if any) rises to a level which would support his claim. The cause of action for intentional infliction of emotional distress is a last resort for calling to task (1) those who engage in primitive and uncivilized behavior in an attempt to impose their prurient will on others or (2) those in positions of authority and responsibility who allow such conduct to occur or continue. If courts were to permit such claims, absent a showing of conduct which exceeded the bounds of common decency, the cause of action would be rendered meaningless. Inasmuch as plaintiff cannot meet the standards set forth in Hogan, judgment must be entered for defendants as to plaintiff's claim of intentional infliction of emotional distress.

7. Punitive Damages

Plaintiff's claim for punitive damages must also be dismissed with prejudice. There has been no showing that defendants engaged in any conduct that was malicious or unlawfully willful in any manner.

VI. Conclusion

For the reasons discussed above, a judgment, granting defendants' Motion for Summary Judgment and dismissing all of plaintiff's claims with prejudice, will be entered simultaneously herewith.

This Memorandum of Decision is entered in response to defendants' Motion for Summary Judgment (#18).