Opinion
Case No. 1:02CV649
September 10, 2003
MEMORANDUM OPINION
This case is before the Court on Defendant's Motion for Summary Judgment [Doc. #16]. For the reasons set forth below, the Defendant's motion is GRANTED.
I.
The facts in the light most favorable to the plaintiff are as follows: Plaintiff Sheila Brandon began work for Defendant Eaton Corporation ("Eaton") on March 13, 2001. Ms. Brandon worked for ten months as an Executive Assistant in Eaton's manufacturing facility in Roxboro, North Carolina. Her application for employment contained a paragraph stating that the job, if offered, was "for no definite period of time" and that the job could be terminated "at any time, with or without cause and with or without notice." Ms. Brandon separately initialed this paragraph. The letter Eaton sent Ms. Brandon confirming its offer of employment did not mention any duration of employment.
During the time of Ms. Brandon's employment, Eaton had in place a short-term disability program. Ms. Brandon received a copy of the terms of the program when she was hired. Eaton's disability program provided covered employees with a percentage of their salary for up to 26 weeks. In order to receive benefits, employees were required to provide a physician's note stating that they were unable to perform their duties due to a covered disability. The first page of the policy provided that the program did not create any vested rights and could be canceled at any time. All benefits ended when employment ended.
While employed by Eaton, Ms. Brandon had medical problems that required her to take several absences pursuant to Eaton's disability plan. Of particular interest, Ms. Brandon underwent surgery on two occasions. The first surgery took place in May, 2001, and the second took place on November 8, 2001. Both of Ms. Brandon's surgeries required hospitalization and extended recovery time.
Brandon's complaint notes the date as May 10, 2001, while Ms. Brandon's guess in her deposition was May 24, 2001 "or something like that.' (Brandon Dep. at 45).
Upon Ms. Brandon's return to work after her first surgery, she experienced various offensive comments about her medical condition. For example, Ms. Brandon developed a staph infection which created a foul odor. Ms. Brandon overheard an employee saying that Ms. Brandon needed to learn how to use a douche. Ms. Brandon also took offense when her boss joked about using her heavy arm bandages as a club.
Ms. Brandon took another leave of absence beginning November 5, 2001 for her second surgery. Once again she requested and received short-term disability pursuant to the company disability plan. Although her doctor had not yet given her permission to return to work as required by Baton's disability plan, Ms. Brandon returned to work on December 10, 2001. She alleges that she returned to work due to pressure from her supervisors and because, during her absence, she had been badgered by daily phone calls with work related requests. Ms. Brandon never provided Eaton with a letter from her doctor releasing her to return to work.
When Ms. Brandon returned to work, she did not resume her prior Executive Assistant position. Instead she was informed that she would be working as a data analyst in another area of the building. When Ms. Brandon complained about having to work in a dirty cubicle far from a private bathroom where she could change her bandages, she was relocated. Moving boxes and other items around to adjust to her new office was difficult for Ms. Brandon in her weakened medical condition, but she was able to obtain assistance from other employees.
Ms. Brandon contends that the new position was a surprise to her while Eaton contends that Ms. Brandon had already agreed to the job change.
Ms. Brandon left early on December 10, her first day back. The parties dispute whether Ms. Brandon reported to work on December 11. She attended a funeral on December 12, 2001 without contacting anyone at Eaton in advance. Eaton's human resources manager called with concerns about Ms. Brandon's absences and suggested that Ms. Brandon take the rest of the week off pending the return of her supervisor. Ms. Brandon did not report to work the next Monday for the meeting as agreed, but called later that day to request additional leave through January 2, 2003. She did not provide documentation of her medical need to remain out of work beyond December 17, 2002.
Eaton contends that it repeatedly requested Ms. Brandon to provide letters from her physician releasing her to work on December 10 and documenting the need for additional leave beginning December 17, but that Ms. Brandon refused. Therefore, Eaton sent Ms. Brandon a notice of termination of employment via certified mail on January 2, 2003. Ms. Brandon claims not to have received the termination letter and alleges that her benefits were cut off without notice on January 24, 2002 in violation of both the Family and Medical Leave Act and in breach of her employment contract. She further claims that the lack of notice, pressure to return to work early, numerous phone requests for her to work during her leave, and comments from fellow employees about her medical condition constituted intentional infliction of emotional distress.
Plaintiff filed suit in Superior Court for Durham County. Defendant removed the case based on both federal question and diversity jurisdiction and filed a motion for summary judgment.
II.
Summary judgment is appropriately granted against a party when that party has the burden of proof on a particular claim and is unable to make a showing — by affidavit, deposition testimony, answers to interrogatories, or admissions on file — of specific facts which would be (1) admissible at trial and (2) sufficient to support a jury verdict on each element of that claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering the motion, the court must consider the evidence, and any reasonable inferences to be drawn from the evidence, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 597-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Summary judgment is inappropriate if factual issues "may reasonably be resolved in favor of either party," because those issues may only properly be resolved by a finder of fact. Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. If, however, there can be but one reasonable interpretation of the facts relating to a claim, the claim can be determined as a matter of law and summary judgment is appropriate. Fed.R.Civ.P. 56(e).
The party moving for summary judgment has the burden of pointing to the particular element(s) of a claim which it contends the opposing party is unable to prove. Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. It is the burden of the non-moving party, in this case Ms. Brandon, to respond — by providing evidence such as affidavits of witnesses who have personal knowledge of pertinent facts, or pointing to evidence already of record in depositions, answers to interrogatories, or admissions of her opponent — and show that she indeed does have evidence which, if believed, would prove those elements the defendant has argued she cannot prove.
Defendant Eaton filed a motion for summary judgment on April 16, 2003. Ms. Brandon did not respond within thirty days as required by Local Rule 56.1(d), despite receiving a letter explaining the effect of her failure to respond. Ms. Brandon still has not filed any response to Defendant's motion for summary judgment. As such, the motion will be treated as uncontested. Id.
An uncontested motion for summary judgment is not automatically granted. Campbell v. Hewitt. Coleman Assocs., Inc., 21 F.3d 52, 55 (4th Cir. 1994); Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 416 (4th Cir. 1993). While a party's failure to respond to a summary judgment motion may leave the facts established by the motion uncontroverted, the moving party must still show that the facts entitle him to judgment as a matter of law. Custer, 12 F.3d 410 at 416. Because Ms. Brandon failed to provide any facts from which a reasonable jury could find in her favor, Defendant Eaton's motion for summary judgment is granted.
III.
Ms. Brandon first alleges violation of The Family and Medical Leave Act of 1993, 29 U.S.C. § 2601-2654 (1999) ("FMLA"). The FMLA provides eligible employees with up to twelve weeks leave for various family and personal reasons. Following leave, employees are entitled to return to their former positions, or to an equivalent position. 29 U.S.C. § 2916(a)(1). One of the permissible reasons for taking leave under the FMLA is where the employee has "a serious health condition that makes the employee unable to perform the functions" of her job. 29 U.S.C. § 2612(a)(1)(D).FMLA leave provisions only apply, however, to employees who have been employed "for at least 12 months . . .; and for at least 1250 hours of service" prior to the requested leave. 29 U.S.C. § 2611(2)(A). Ms. Brandon's failure to be employed by Eaton for 12 months prior to her leave is undisputed. The complaint itself specifically alleges only ten months of employment from start to finish. Ms. Brandon began her employment in March of 2001 and Eaton terminated her employment in January of 2002. The leave in question began in November of 2001, after less than a full eight months of employment.
For the purposes of summary judgment, Eaton does not dispute that Ms. Brandon worked for at least 1250 hours.
Because the provisions of the FMLA do not apply to Ms. Brandon's employment with Eaton, Eaton's motion for summary judgment on the FMLA claim is granted.
IV.
Ms. Brandon also brings a claim against Eaton for intentional infliction of emotional distress. In North Carolina, the tort of intentional infliction of emotional distress ("IIED") consists of three elements: (1) Extreme and outrageous conduct, (2) which is intended to cause and does cause, (3) severe emotional distress to another. Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22 (1992), citing Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981). Conduct is only deemed extreme and outrageous as a matter of law when it is "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." Briggs v. Rosenthal, 73 N.C. App. 672, 677, 327 S.E.2d 308, 311 (1985), cert. denied, 314 N.C. 114, 332 S.E.2d 479 (1985). Mere annoyances and indignities are insufficient. Id.
Courts analyzing NED claims in the employment context have rarely deemed conduct extreme and outrageous even where it is highly offensive and inappropriate. See Atkins v. USF Dugan, Inc., 106 F. Supp. 799 (M.D.N.C. 1999), (notifying an employee a month after his heart attack that he would be fired if he did not return to work, telling him he was too old to perform his job, and firing him in violation of federal and state discrimination laws did not constitute extreme and outrageous conduct); Hogan v. Forsyth Country Club, 79 N.C. App. 483, 340 S.E.2d 116 (1986) (yelling and throwing menus at employee, requiring her to do work she could not perform while pregnant, and refusing to allow her to leave work to go to the hospital with labor pains did not constitute extreme and outrageous behavior).
Even if Ms. Brandon's allegations are taken as true, Baton's conduct does not rise to the level of extreme and outrageous behavior required to establish a claim for IIED. In her deposition, Ms. Brandon stated that Eaton's request for her return to work before she was medically ready and Eaton's failure to notify her of her termination constituted extreme conduct. However, calling an employee at home with work requests, asking her to return to work, and failing to take careful measures to make sure she received a certified letter of termination are not extreme actions. The comments made by Ms. Brandon's co-workers, while arguably offensive, are likewise insufficient to establish an action for IIED.
Because Eaton's conduct was not extreme and outrageous, we need not proceed to the other elements of the IIED claim. Eaton's motion for summary judgment on the IIED claim is granted.
V.
Finally, Ms. Brandon alleged that her termination constituted a breach of her employment contract. The complaint states that Eaton agreed to provide disability coverage as part of their employment agreement, and that Eaton's later failure to do so breached both the employment agreement and the terms of the disability coverage. However, a reasonable jury could not find that Eaton breached any contract with Ms. Brandon.
North Carolina has a well-settled rule that, in the absence of an employment contract for a definite period, "the employment is presumed to be `at will,' terminable at the will of either party." Soles v. City of Raleigh Civil Serv. Comm'n, 345 N.C. 443, 446, 480 S.E.2d 685, 687 (1997). An employment agreement describing compensation at a yearly or monthly rate does not create employment for a definite period. Wilkerson v. Carriage Park Dev. Corp., 130 N.C. App. 475, 477-78, 503 S.E.2d 138, 140 (1998).
Eaton clearly did not promise Ms. Brandon employment for a definite term. The undisputed facts are that Ms. Brandon's employment application contained a provision stating that any employment with Eaton would be terminable at any time by Eaton, without cause and without notice. Ms. Brandon separately initialed that she understood this provision. Further, the letter Eaton sent Ms. Brandon confirming her terms of employment said nothing about any particular duration of employment. Ms. Brandon has failed to allege any facts indicating that Eaton made any promise as to the duration of her employment.
Similarly, Ms. Brandon has not presented evidence which would implicate an exception to the employment-at-will doctrine. North Carolina recognizes exceptions to the general employment-at-will rule where an employee has been fired for illegal reasons or for reasons which are contrary to public policy. Kurtzman v. Applied Analytical Industries, Inc., 347 N.C. 329, 493 S.E.2d 420 (1997). See also, Amos v. Oakdale Knitting Co., 331 N.C. 348, 416 S.E.2d 166 (1992) (firing an employee for refusing to accept less than minimum wage constitutes a public policy violation;Coman v. Thomas Mfg. Co., 325 N.C. 172, 381 S.E.2d 445 (1989) (failing to falsify company records violates public policy).
Ms. Brandon has not presented facts which constitute either a policy reason prohibiting her termination or any violation of law by Eaton in terminating Ms. Brandon's employment. The disability program clearly states that it does not create an entitlement to benefits, and that all benefits end when employment is terminated. Eaton provided Ms. Brandon with weeks of short-term disability when Ms. Brandon complied with company policy. Eaton fired Ms. Brandon for failing to report to work and for failing to provide documentation of a medical excuse for reporting to work. The manner of termination does not justify divergence from North Carolina's strongly held employment-at-will doctrine.
VI.
For the reasons stated above, Defendant's motion for summary judgment is GRANTED.