Summary
affirming dismissal of complaint alleging wrongful discharge based on public policy where the "gravamen" of plaintiff's complaint is based on a disabling condition and not a refusal to violate public policy
Summary of this case from Clark v. United EmergencyOpinion
No. COA01-468
Filed 5 March 2002
Employer and Employee; Schools — assistant teacher — wrongful discharge — disability discrimination — abandonment of claim — insufficient allegations of public policy violation
The gravamen of plaintiff assistant teacher's complaint against defendant board of education for wrongful termination based on her inability to drive a school bus due to a seizure disorder was an employment discrimination claim under N.C.G.S. § 168-1 et seq., not a claim for wrongful termination in violation of public policy to ensure the safety of persons and property, and the complaint was properly dismissed because plaintiff specifically abandoned her disability discrimination claim, where there were no allegations to support an inference that defendant board wanted plaintiff to drive a school bus after learning of her seizure disorder, plaintiff's allegations show that the board gave plaintiff only the choice to resign or be terminated, and plaintiff's complaint was thus based on her disability condition and not on her refusal to violate public policy.
Judge HUNTER dissenting.
Appeal by plaintiff from order filed 19 January 2001 by Judge Benjamin G. Alford in Carteret County Superior Court. Heard in the Court of Appeals 22 January 2002.
Ralph T. Bryant, Jr., P.A., by Ralph T. Bryant, Jr., for plaintiff-appellant.
Kirkman, Whitford Brady, P.A., by Neil B. Whitford, for defendant-appellees.
Tina Kelly (Plaintiff) appeals an order filed 19 January 2001 granting a motion to dismiss in favor of Carteret County Board of Education, David Lenker, Jr., Renee Newman, and John Welmers (collectively, Defendants).
Plaintiff filed a complaint on 19 April 2000 alleging she was employed in the Carteret County School System as an assistant teacher at White Oak Elementary School (the School) from 14 January 1997 until 18 August 1997. On 18 August 1997, Plaintiff submitted to the School a letter from her physician stating that due to a seizure disorder and other medical conditions, Plaintiff should not be driving a school bus. Plaintiff alleged that if she "were to drive a school bus, it would jeopardize the safety of persons and property on or near the public highways." On 19 August 1997, the School informed Plaintiff that "because of her unwillingness and inability to drive a school bus[,] she had one hour to either resign or be terminated." Plaintiff was terminated from her position on 19 August 1997. Plaintiff's complaint also alleges she was wrongfully terminated in violation of the public policy of North Carolina that "all people . . . hold employment without discrimination on the bases of handicap or disability" and "that the safety of persons and property on or near the public highways be protected."
In her brief to this Court, Plaintiff has expressly abandoned her disability discrimination claim and only appeals the trial court's dismissal of her claim for wrongful termination in violation of the public policy of North Carolina to protect the safety of persons and property.
Defendants filed a motion to dismiss Plaintiff's complaint on 7 July 2000, arguing: they were immune from Plaintiff's suit under the doctrine of public official immunity; the gravamen of Plaintiff's complaint falls "within the purview of the North Carolina Persons with Disabilities Protection Act codified at G.S. 168A-1, et[.] seq.[, thus] . . . Plaintiff's claim is time barred by the applicable statute of limitations set forth in [that] Act"; and "no cause of action for wrongful discharge exists when an employee is terminated for failure to perform an act which he may be able to prove was unsafe."
In its order granting Defendants' motion to dismiss Plaintiff's complaint, the trial court concluded:
all the allegations forming the gravamen of[P]laintiff's complaint fall within the scope of the North Carolina Persons With Disabilities Protection Act codified at G.S. 168A-1 et. seq. and that within this Act at G.S. 168A-12 is a 180[-]day statute of limitation[s] applicable to [P]laintiff's complaint. The [trial] court concludes that [P]laintiff's complaint is barred by this statute of limitations.
The dispositive issue is whether "all the allegations forming the gravamen of Plaintiff's complaint fall" within the scope of a disability discrimination claim.
The "gravamen" of a complaint is its "material part" or "the grievance or injury specially complained of." Black's Law Dictionary 701 (6th ed. 1990). The injury complained of in an employment disability discrimination claim is that the employee was terminated "on the basis of a disabling condition." N.C.G.S. § 168A-5(a)(1) (1999). In the context of a claim for wrongful termination in violation of public policy, the injury specially complained of is that an employee was terminated for refusing, to perform an act which would violate public policy after being requested to do so. See Coman v. Thomas Manufg. Co., Inc., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989) (a cause of action exists for wrongful discharge for refusal to violate public policy).
In this case, Plaintiff's allegations only complain of an injury based on her disabling condition. Although Plaintiff argues her complaint sets forth a claim for relief based on the public policy of North Carolina to ensure the safety of persons and property, there are no allegations to support an inference that Defendants wanted Plaintiff to drive a school bus after learning of her seizure disorder. There is no indication from Plaintiff's complaint that after informing the School of her medical condition, the School either implicitly or explicitly gave her a choice to drive the school bus or be terminated. Indeed, Plaintiff's allegations show that after learning of the disorder, Plaintiff's only choice was to either resign or be terminated. All of Plaintiff's allegations relate to her termination by the School based on her inability to drive a school bus due to her seizure disorder. Accordingly, as the "gravamen" of Plaintiff's complaint is based on her disabling condition, and not on her refusal to violate public policy, Plaintiff's complaint only sets forth an injury based on a discrimination claim. Thus, as we conclude the allegations forming the gravamen of Plaintiff's complaint are within the scope of a discrimination claim and Plaintiff has expressly abandoned her disability discrimination claim, this appeal is dismissed.
Accordingly, as Plaintiff "does not address the issue of whether a wrongful discharge claim based on disability has a six-month statute of limitations" and she has expressly abandoned her discrimination claim, we need not address the applicable statute of limitations to the discrimination claim as brought by Plaintiff.
Dismissed.
TYSON concurs.
Judge HUNTER dissents.