Opinion
5:22-CV-00459-BO-RJ
09-27-2023
Ovis Matamoros Canales, on behalf of himself and all others similarly situated, Plaintiffs, v. OPW Fueling Components LLC, Defendant.
MEMORANDUM & RECOMMENDATION
ROBERT T. NUMBERS, II UNITED STATES MAGISTRATE JUDGE
Ovis Matamoros Canales has sued OPW Fueling Components, LLC (his former employer), for alleged violations of both state and federal law. His statutory claims arise under the federal Fair Labor Standards Act, the North Carolina Wage and Hour Act (“WHA”), and the North Carolina Retaliatory Employment Discrimination Act (“REDA”). He also alleges that OPW violated North Carolina tort law and fired him in violation of the state's public policy. And while Canales brings his FLSA and WHA claims on behalf of himself and all other similarly situated OPW employees, he brings his REDA, tort, and wrongful discharge claims solely on his own behalf.
OPW has moved to dismiss Canales's individual claims, contending that they fail to state a claim upon which relief can be granted. For the reasons set forth below, the undersigned recommends that the court grant OPW's partial motion to dismiss in part (D.E. 18). While Canales's REDA and wrongful discharge claims should move forward, his IIED claim should be dismissed.
OPW also filed a motion for judgment on the pleadings that targets Canales's WHA claim. See Mot. Partial J. on the Pleadings, D.E. 28. The court will address that motion by separate order.
Because OPW's motion to dismiss only challenges Canales's individual claims, the factual background here omits facts that are only relevant to his class and collective action claims.
Canales worked as a machine operator and welder at OPW's Smithfield, North Carolina facility from 2011 to 2021. Am. Compl. ¶¶ 40-41, 53, D.E. 13. OPW is a global manufacturer headquartered in Delaware, and its Smithfield location specializes in below-ground retail fueling. Id. ¶ 15, 38. As a machine operator, Canales cut metals with a plasma machine and welded them to form gas station components. Id. ¶ 42.
According to Canales, OPW's safety measures left its employees at risk. At root, Canales's concerns arise out of OPW's machine repair policies. See id. ¶ 58. OPW employed technicians whose purpose was to repair malfunctioning machines, but Canales contends that they were rarely called. Id. Instead, despite company policy mandating that machine operators call a technician when they notice a malfunction, see id. ¶ 84, management expected machine operators “to troubleshoot machines themselves, despite having no experience or training on how to troubleshoot machines whatsoever, to keep the machines running and avoid delays in production[,]” id. ¶ 58.
Before the COVID-19 pandemic, OPW hosted weekly administrative meetings to “report important updates.” Id. ¶ 57. Canales contends that, during these meetings, he and other OPW employees repeatedly raised concerns about faulty machinery. Id. But neither Canales's department supervisor (Armando Cholula) nor his team leads (Moises Mena and Tomas) took their concerns seriously. Id. After the pandemic, the administrative meetings took place monthly. Id. ¶ 59. And although Canales allegedly continued to voice his opinions on workplace safety at the monthly meetings, OPW still required machine operators “to repair their own machines, despite the inherent safety violations involved in such a practice.” Id. ¶ 60. Canales claims that he also complained about the machine repair policies during group meetings at start of each shift, id., and during a meeting with OPW's human resources specialist, id. ¶ 147.
Canales does not provide this individual's last name.
Even though Canales and other OPW employees “complained about the machinery to various levels of leadership within OPW,” the company “repeatedly failed to submit repair requests to machine technicians.” Id. ¶ 61. This state of affairs was particularly problematic for Canales's department-there, “machine failures were common because the machines were old and in poor condition.” Id. ¶ 62. Canales claims that his managers asked him to troubleshoot machine malfunctions even though he was not qualified to repair them on at least two occasions. Id. ¶¶ 6365. He initially refused, but Cholula, Mena, and Tomas eventually wore him down. Id. ¶ 65. After several weeks of being micromanaged, yelled at, and berated by Cholula, Canales agreed to repair the machines. Id.
In September 2021, Cholula told Canales and other OPW employees “that they were not permitted to unilaterally make decisions without his input, and that employees were strictly forbidden from directing or advising other employees on how to do their job.” Id. ¶ 66. Canales contends that this meant an employee could not “direct or instruct another employee on the handling of their own machinery.” Id.
The next month, the tension between Canales and his management came to a head. Canales maintains that Mena-acting under Cholula's orders-instructed him to assist another OPW employee (Narciso Manuel Solis) with his machine. Id. ¶ 68. Canales complied, fearing that failure to do so would lead to reprisal and retaliation. Id. Solis was struggling to repair his machine, and Canales suggested that they contact a technician. Id. ¶ 70. But because “management expected [employees] to troubleshoot and repair the machine themselves[,]” Solis declined to follow Canales's advice. Id. Instead, Solis directed Canales to go to a nearby button and press it when Solis ordered him to. Id. ¶ 71. Solis then “plac[ed] a beam on the machine to fix” it. Id. ¶ 72. Canales again voiced his opinion that they should call a technician, but Solis told him that he fixed the malfunctioning machine “all of the time.” Id.
As Canales prepared to press the button, however, another OPW employee told him to shut the machine off-Solis had been injured. Id. ¶ 73. The beam that Solis placed on the machine activated it and caused him to fall. Id. Solis was taken to the hospital and passed away six months later. Id. ¶ 74. After the accident, OPW technicians examined Solis's machine and found that a foreign object had been lodged inside it, causing it to malfunction. Id. ¶ 76. They “also determined that the machine should have been replaced long before the incident, as [it] was beyond repair.” Id. Canales alleges that, if OPW had taken his concerns seriously, Solis would not have been injured. Id. ¶ 80.
The parties hotly contest whether Solis's workplace injury led to his death. This question is the subject of OPW's pending motion for Federal Rule of Civil Procedure 11 sanctions (D.E. 30), and the court will address the parties' positions on the issue by separate order.
In the month following the incident, Canales met with two OPW higher-ups (Franklyn Terranova and Janie) several times. The first meeting occurred one or two days after the incident. Id. ¶ 78. Terranova and Janie told Canales that they wanted to know how Solis was injured to prevent future accidents. Id. But according to Canales, “the animosity and increased scrutiny [he] faced in the past after reporting safety violations to” Cholula made him too uncomfortable to vocalize the safety concerns he raised within his department. Id. ¶ 79. Sharing this information, Canales feared, would cost him his job. Id. ¶ 80. So rather than convey his true concerns, “Canales explained to [Terranova] and Janie what had happened but did not mention that Cholula ordered him to assist Solis.” Id.
Canales does not provide this individual's last name.
Several days later, Terranova and Janie met with Canales again. Id. ¶ 81. This time, they wanted to know why Solis placed the beam on the machine and whether anyone told him to put it there. Id. Canales denied instructing Solis to put the beam on the machine, citing Cholula's “explicit instructions . . . that machine operators were strictly forbidden from telling other machine operators what they could and could not do.” Id. He also explained that Solis “tried to repair the machine himself because it was the practice of the company for employees to repair their own machines to avoid delays[.]” Id.
After these two conversations, Canales noticed that management scrutinized his work more harshly than it had in the past. Id. ¶ 83. He suspects that Terranova and Janie “wanted [him] to provide testimony that would help the company avoid any liability for Solis's accident.” Id. But when Canales wouldn't tell them that the machines were safe, OPW wanted to find a reason to fire him and “rid themselves of any potential evidence or witness who could contradict” the company's “denial of responsibility for Solis's injuries.” Id.
A week before Canales was fired, he met with Terranova and Janie a final time. Id. ¶ 84. In this meeting, they allegedly accused him of violating OPW's safety policy and pinned Solis's accident on him. Id. Rather than assisting Solis, they maintained, Canales should have instructed him to stop trying to repair the machine himself. Id. Canales also contends that they accused him of “opening the window and acquiring the beam that severely injured Solis[.]” Id. ¶ 85. But Canales pushed back, informing Terranova and Janie that he “had only pushed a button, as he was instructed to do.” Id.
OPW fired Canales on November 23, 2021. Id. ¶ 53. That day, he was called into a meeting with Janie, the human resources director (Rick Benson), and the global environmental health and safety manager (Joshua Smith). Id. ¶ 86. They allegedly told him that OPW was firing him because he violated the company's safety policy. Id. Specifically, they terminated Canales “because he did not stop Solis from using the beam” to try to repair his machine. Id. ¶ 87. Canales claims that OPW fired him to shift the blame for Solis's accident from the company to him, as “it was unequivocally [OPW]'s practice [to] allow[] employees to repair their own machines to avoid disruption in production[.]” Id. ¶ 88.
After receiving a right-to-sue letter from the North Carolina Department of Labor, Canales filed this lawsuit in November 2022. See Compl., D.E. 1. He filed an amended complaint the following February. In total, his amended complaint brings five claims against OPW. Setting aside his class- and collective-action claims, Canales brings individual claims for the violation of REDA, wrongful discharge in violation of North Carolina public policy, and intentional infliction of emotional distress. See Am. Compl. ¶¶ 138-62. OPW moved to dismiss Canales's individual claims the next month. Partial Mot. Dismiss, D.E. 18.
II. Discussion
OPW argues that Canales's amended complaint should be dismissed because it fails to state a claim upon which relief may be granted. The Supreme Court has found that, to withstand a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court explained that “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Thus, while a court must accept all the factual allegations in a complaint as true, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
After Iqbal, a court considering a motion under Rule 12(b)(6) must subject a complaint to a two-part test. First, the court must identify the allegations in the complaint that are not entitled to the assumption of truth because they are conclusory or mere formulaic recitations of the elements of a claim. Id. at 679. Then, taking the remaining factual allegations as true, the court must determine whether the complaint “plausibly give[s] rise to an entitlement to relief.” Id. If, after conducting this two-part analysis, “the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]- that the pleader is entitled to relief.” Id. (internal citation and quotations omitted). If a party fails to show that they are entitled to relief, the court must dismiss the deficient claims.
According to OPW, Canales's REDA claims fail because he did not engage in a legally protected activity and OPW had no retaliatory motive for firing him. See Mem. Supp. Partial Mot. Dismiss at 7-13. And since his wrongful discharge claim hinges on the validity of his REDA claim, OPW maintains that it did not fire him illegally. Id. at 17-19. Finally, OPW urges the court to dismiss Canales's IIED claim because the company's conduct was not extreme and outrageous, and Canales has not shown that he suffered severe emotional distress. Id. at 13-17. OPW's final argument is persuasive. But at this stage in the litigation, the court should decline to dismiss Canales's REDA and wrongful discharge claims.
A. Retaliatory Employment Discrimination Act Claim
OPW first contends that Canales has failed to state a claim under REDA. That statute provides that “[n]o person shall discriminate or take any retaliatory action against an employee because the employee in good faith does or threatens to . . . [f]ile a claim or complaint, initiate any inquiry, investigation, inspection, proceeding or other action, or testify or provide any information to any person with respect to” several statutes. N.C. Gen. Stat. § 95-241(a)-(a)(1). One of the statutes covered under REDA is the Occupational Safety and Health Act of North Carolina. Id. § (a)(1)b.
To state a claim under REDA, a plaintiff must satisfy three elements. First, he must establish “that he exercised his rights listed under” the statute. Wiley v. UPS, Inc., 164 N.C.App. 183, 186, 594 S.E.2d 809 (2004). Second, he must show “that he suffered an adverse employment action[.]” Id. And finally, he must demonstrate “that the alleged retaliatory action was taken because [he] exercised his rights under” the statute. Id. If the plaintiff makes a prima facie showing of a REDA violation, “the burden shifts to the defendant to show that he ‘would have taken the same unfavorable action in the absence of the protected activity of the employee.'” Id. (quoting N.C. Gen. Stat. § 95-241(b)).
OPW and Canales agree that he suffered an adverse employment action-he was fired. But OPW maintains that Canales did not exercise his rights under REDA because his “internal complaints” about workplace safety “are not legally protected activity.” Mem. Supp. Partial Mot. Dismiss at 7. The company also contends that, even if Canales did engage in protected activity, its decision to fire him was unrelated to the exercise of his rights. Id. at 13.
Canales claims that OPW fired him for making statements that “were intended to initiate an investigation into” OPW's “ongoing workplace safety issues[.]” Am. Compl. ¶ 147. According to Canales, OPW's requirement that technicians repair their own machines violates OSHANC, which requires employers to provide workers “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Id. ¶ 145 (quotation omitted). Canales allegedly lodged complaints about the malfunctioning machines at least two times each week. Id. ¶ 146. All told, he contends that he complained to Mena, Tomas, Cholula, and the human resources specialist. Id. ¶ 147. But after Canales complained about this issue, OPW treated him with increased hostility and eventually fired him. Id. ¶ 148.
The Supreme Court of North Carolina has not determined whether REDA protects an employee's internal complaints. See Hadley v. Duke Energy Progress, LLC, 677 Fed.Appx. 859, 861 (4th Cir. 2017) (per curiam). Thus, in determining whether Canales engaged in protected activity, the court “must follow the decision of an intermediate state appellate court unless there is persuasive data that the highest court would decide differently.” Town of Nags Head v. Toloczko, 728 F.3d 391, 398 (4th Cir. 2013) (citation and internal quotation marks omitted). State and federal courts within North Carolina have found that “merely talking to an internal supervisor about potential safety concerns is not a protected activity under” the statute. Jurrissen v. Keystone Foods, LLC, No. 1:08CV128, 2008 WL 3925086, at *5 (M.D. N.C. Aug. 20, 2008) (citation and internal quotation marks omitted) (collecting cases); see Pierce v. Atl. Grp., Inc., 219 N.C.App. 19, 28, 724 S.E.2d 568 (2012) (holding that the plaintiff's discussions with his supervisors about safety concerns did not “initiat[e] an inquiry” under REDA).
In assessing whether a complaint is protected, the Fourth Circuit counsels courts to examine “whether it relates or leads to an investigation; whether it's made to someone other than the plaintiff's supervisors or managers; and whether workplace safety is a primary focus of the complaint.” Driskell v. Summit Contr. Grp., Inc., 828 Fed.Appx. 858, 867 (4th Cir. 2020) (cleaned up). In Pierce, for instance, “Plaintiff spoke only to his supervisors about his [safety] concerns[.]” 219 N.C.App. at 28. And while the plaintiff also contacted his employer's ethics hotline, he did so to complain about retaliatory treatment-not an unsafe working environment. Id. This led the court to conclude that he had not alleged a REDA violation. Id. In Jurrissen, by contrast, the U.S. District Court for the Middle District of North Carolina determined that the plaintiff had engaged in protected activity under REDA because he “communicated with Defendant's internal auditor about an ongoing investigation into Defendant's health and safety practices.” 2008 WL 3925086, at *6.
Canales's discussions with management fall into two categories: internal complaints that took place before Solis's accident, and the three meetings with Terranova and Janie that occurred afterward. Before Solis was injured, Canales complained about workplace conditions to Mena, Cholula, and Tomas at administrative and pre-shift meetings. Am. Compl. ¶¶ 57, 59, 60. He also claims that he complained to OPW's human resources specialist, though his amended complaint is light on details related to this conversation. See Am. Compl. ¶ 147. After Solis's injury, Canales met with Terranova and Janie three times. During their first meeting, he explained how Solis was injured but decided not to bring up any of his safety concerns. Am. Compl. ¶ 80. A week later, he denied telling Solis to place the beam on the machine and remarked that “it was the practice of the company for employees to repair their own machines[.]” Id. ¶ 82. And in the final meeting, Terranova and Janie reportedly accused Canales of violating OPW's safety policy, but Canales did not share his own safety concerns with them. Id. ¶ 84.
Earlier this year, the district judge presiding over this case found similar complaints sufficient to constitute protected activity under REDA. See Vines v. Mountaire Farms, Inc., No. 5:21-cv-00059, 2023 WL 2334413, at *3 (E.D. N.C. Mar. 2, 2023) (Boyle, J.). In Vines, the employee complained about workplace safety to his supervisor, a human resources manager, and a plant manager. Id. And “although these complaints did not directly lead to an investigation, they did allege ongoing OSHANC violations.” Id. This, the court concluded, was “adequate evidence that [the internal complaints] constituted a protected action” under Driskell. Id. Like the employee in Vines, Canales has complained about alleged ongoing OSHANC violations with his direct managers, human resources professionals, and other individuals within OPW. And although it's unclear whether these complaints led to (or relate to) OPW's investigation into Solis's injury, it would be premature to conclude that he has not engaged in protected activity at the motion to dismiss stage. Thus, based on Vines's reasoning, the court should decline to dismiss Canales's REDA claim on this ground.
Canales will likely need to bolster his REDA claim to survive summary judgment. See, e.g., LaSasso v. FedEx Express, No. 5:15-CV-166-BO, 2017 WL 1327677, at *5 (E.D. N.C. Apr. 10, 2017) (Boyle, J.) (granting summary judgment for employer on employee's wrongful discharge claim because his complaints were purely internal); May v. Remedy Diner, Inc., No. 5:16-CV-116-BO, 2017 WL 2304454, at *4 (E.D. N.C. May 25, 2017) (Boyle, J.) (“[T]his conversation would be considered an internal complaint and not outside defendant's internal grievance systems, which is not enough to establish a claim under REDA.”).
OPW maintains that, even if Canales engaged in protected conduct under REDA, its decision to fire him had nothing to do with the exercise of his rights. Mem. Supp. Partial Mot. Dismiss at 13. Canales counters that the temporal proximity between his protected conduct and his discharge and OPW's “pattern of retaliation towards” him suggest a causal connection. Resp. Opp'n Partial Mot. Dismiss at 17.
To prove that OPW fired him in retaliation for any protected conduct, Canales will likely need discovery. See generally Sweirkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (“Before discovery has unearthed relevant facts and evidence, it may be difficult to define the precise formulation of the required prima facie case in a particular case. Given that the prima facie case operates as a flexible evidentiary standard, it should not be transposed into a rigid pleading standard for discrimination cases.”). Thus, the resolution of this question is better suited for summary judgment-not a motion to dismiss. The district court should therefore deny OPW's motion to dismiss Canales's REDA claim.
B. Wrongful Discharge Claim
Next, OPW asks the court to dismiss Canales's wrongful discharge claim. Because “North Carolina is an employment-at-will state[,]” employment relationships are presumptively “terminable at the will of either party without regard to the quality of performance of either party.” Kurtzman v. Applied Analytical Indus., 347 N.C. 329, 331, 493 S.E.2d 420 (1997). But at-will employment has its limits. The North Carolina Court of Appeals has found that “a valid claim for relief exists for wrongful discharge of an employee at will if the contract is terminated for . . . a purpose that contravenes public policy.” Pierce, 219 N.C.App. at 29 (quotation omitted).
While “[t]here is no specific list of what actions constitute a violation of public policy[,]” courts have found that wrongful discharge claims can arise in three situations. Ridenhour v. IBM, 132 N.C.App. 563, 568, 512 S.E.2d 774 (1999) (citation omitted). First, an employee may sue if he was fired for disobeying orders to violate the law. Id. (citation omitted). Second, an employer may be liable if it fires an employee “for engaging in a legally protected activity[.]” Id. at 569. And finally, an employee may sue “based on some activity by the employer contrary to law or public policy[.]” Id. (citation omitted). Thus, “[t]o prevail on a claim for unlawful termination in violation of public policy[,] a plaintiff must identify a specified North Carolina public policy that was violated by an employer in discharging the employee.” Pierce, 219 N.C.App. at 30 (quotation omitted). This public policy must be “clearly expressed within [North Carolina's] general statutes or state constitution[.]” Su v. Matto, No. 7:20-CV-210-BO, 2021 WL 2345349, at *3 (E.D. N.C. June 8, 2021) (Boyle, J.) (quotation omitted).
Canales identifies two North Carolina authorities that give rise to his wrongful discharge claim. First, he contends that REDA supports the claim. Am. Compl. ¶ 158. And second, he alleges that OPW violated the public policy set forth in Article I, § 1 of the North Carolina Constitution. Id. Both these sources, Canales claims, establish a public policy “that employees be free from harassment, discrimination, and retaliatory treatment in their employment.” Id. And OPW allegedly violated that public policy by firing Canales for complaining about workplace safety violations. Id. ¶ 160.
Canales also claims that this public policy is “expressed . . . ubiquitously throughout the statutes and laws of” North Carolina. Am. Compl. ¶ 158. But Canales's vague reference to the entirety of North Carolina law does not “identify a specified . . . public policy[,]” Pierce, 219 N.C.App. at 30, that can give rise to wrongful discharge liability.
In North Carolina, “a plaintiff may pursue both a statutory claim under REDA and a common law wrongful discharge claim based on a violation” of the statute. White v. Cochran, 216 N.C.App. 125, 133, 716 S.E.2d 420 (2011). To the extent that Canales relies on the public policies outlined in REDA to undergird his wrongful discharge claim, the success of his wrongful discharge claim hinges on the success of his REDA claim. See, e.g., Driskell, 828 Fed.Appx. at 869-70; Nguyen v. Austin Quality Foods, Inc., 974 F.Supp.2d 879, 897 (E.D. N.C. 2013) (“Plaintiff's wrongful termination claim is dependent upon the viability of his REDA claim.”) (citations omitted). As discussed above, Canales has stated a claim under REDA sufficient to survive a motion to dismiss. So the court should deny OPW's motion to dismiss his wrongful discharge claim to the extent it relies on public policies laid out in the statute.
Canales's contention that Article 1, § 1 of the North Carolina Constitution supports his wrongful discharge claim, however, holds no water. Echoing the Declaration of Independence, that section states: “We hold it to be self-evident that all persons are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.” N.C. Const. art. I, § 1.
OPW maintains that North Carolina courts have not recognized wrongful discharge claims tracing back to any policy articulated by Article 1, § 1. Mem. Supp. Partial Mot. Dismiss at 19. Canales does not meaningfully rebut this assertion in his response brief. See Resp. Opp'n Partial Mot. Dismiss at 21-25. He does, however, cite a North Carolina Court of Appeals case in which the court found that the public policy exception to at-will employment applied when a plaintiff was fired from her government job for exercising her free speech rights. See Lenzer v. Flaherty, 106 N.C.App. 496, 514-15, 418 S.E.2d 276 (1992). But Lenzer concerned a public employee suing public defendants-it does not suggest that an aggrieved ex-employee can sue a private company for violating a public policy set forth in the state's constitution. This is because “the fundamental provisions of [the North Carolina Constitution], such as Article I, § 1, were inserted to guarantee the right to pursue ordinary and simple occupations free from governmental regulation.” Teleflex Info. Sys., Inc. v. Arnold, 132 N.C.App. 689, 693, 513 S.E.2d 85 (1999) (citation and internal quotation marks omitted).
In sum, North Carolina courts have not recognized a public policy exception to at-will employment arising out of Article I, § 1 when an individual is fired by his private employer. See id. at 692-93. And it would be improper for this court to expand North Carolina's public policy exceptions. See, e.g., Time Warner Ent.-Advance/Newhouse P'ship v. Carteret-Craven Elec. Mbrship. Corp., 506 F.3d 304, 314 (4th Cir. 2007) (“[S]itting in diversity, a federal court should not create or expand [a] state's public policy.”) (citation and internal quotation marks omitted). Thus, while the public policy considerations expressed in Article I, § 1 of the North Carolina Constitution cannot support Canales's wrongful discharge claim, the court should allow the claim to proceed under the policies expressed in REDA.
In his response opposing OPW's partial motion to dismiss, Canales alleges that the company's decision to fire him also offends the public policy articulated in OSHANC. See Resp. Opp'n Partial Mot. Dismiss at 23-25. But this allegation is absent from his complaint. See Compl. ¶ 158 (citing REDA and Article I, § 1 as the grounds for his wrongful discharge claim). Thus, the court should not consider this argument. See, e.g., Bratcher v. Pharm. Prod. Dev., Inc., 545 F.Supp.2d 533, 542 (E.D. N.C. 2008) (citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984) (“[I]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss.”)).
C. Intentional Infliction of Emotional Distress Claim
Finally, OPW maintains that Canales has failed to state a claim for IIED. In North Carolina, a plaintiff proves IIED by showing “(1) extreme and outrageous conduct; (2) that is intended to cause severe emotional distress to another; and (3) that does in fact cause severe emotional distress to another.” Moody-Williams v. LipoScience, 953 F.Supp.2d 677, 682 (E.D. N.C. 2013) (citing Holloway v. Wachovia Bank & Tr. Co., 339 N.C. 338, 351, 452 S.E.2d 233 (1994)).
Canales alleges that Terranova intentionally inflicted emotional distress on him by “blaming [him] for the accident that ultimately [led] to the death of Solis and firing him for such[.]” Am. Compl. ¶ 152. He believes that Terranova's conduct can be attributed to OPW because Terranova accused Canales of causing Solis's accident “while acting within the scope of his employment,” and OPW “ratified [his] behavior by taking no action to prevent it and firing” Canales. Id. ¶ 156. OPW contends that Canales's allegations establish none of the three elements of an IIED claim. See Mem. Supp. Partial Mot. Dismiss at 13.
Without addressing the second or third prongs of the IIED standard, the undersigned finds that Canales has failed to allege that Terranova's conduct was extreme and outrageous enough to state a claim.
Whether a defendant's conduct is extreme and outrageous is a question of law. Moody-Williams, 953 F.Supp.2d at 682. The plaintiff must show that the conduct 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.” Id. Courts apply an “extremely rigorous standard” when the conduct occurs within “the employment context[.]” Id. While North Carolina courts have found actionable IIED claims when “the conduct has been extremely egregious, and involved sexual advances, obscene language, and inappropriate touching[,]” they do not entertain IIED claims that merely allege termination in violation of federal law. Bratcher v. Pharm. Prod. Dev., Inc., 545 F.Supp.2d 533, 545 (E.D. N.C. 2008) (collecting cases). Nor do “mere insults, indignities, [or] threats” give rise to an IIED claim. See, e.g., Hogan v. Forsyth Country Club Co., 79 N.C.App. 483, 493, 340 S.E.2d 116 (1986) (quotation omitted).
Canales's allegations are a far cry from the sort of extreme and outrageous conduct necessary to support a workplace IIED claim. Even if Terranova blamed Canales for Solis's death, this indignity is not “extremely egregious,” and it does not involve “sexual advances, obscene language, and inappropriate touching.” Bratcher, 545 F.Supp.2d at 545; see also Hogan, 79 N.C.App. at 493-94 (finding that calling an employee names, shouting at her, interfering with her supervision of other employees, and throwing menus at her did not constitute extreme and outrageous conduct). Nor is the fact that Canales was allegedly fired in violation of REDA sufficient to give rise to an IIED claim. See Bratcher, 545 F.Supp.2d at 545; see also Pardasani v. Rack Room Shoes, Inc., 912 F.Supp. 187, 192 (M.D. N.C. 1996) (concluding that giving an employee poor performance reviews, denying him promotions, and allegedly firing him in violation of federal law did not support an IIED claim).
In sum, Terranova's conduct was not “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.” Moody-Williams, 953 F.Supp.2d at 682. The court should therefore grant OPW's motion to dismiss Canales's IIED claim.
III. Conclusion
For the reasons discussed above, the district court should grant in part OPW's motion to dismiss (D.E. 18). While Canales's REDA claim and wrongful discharge claim (based on REDA) should move forward, he has failed to state a claim for IIED.
The Clerk of Court must serve a copy of this Memorandum and Recommendation (“M&R”) on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals.