Opinion
No. COA11–1307.
2012-04-17
Bonita COLE, Plaintiff, v. The CITY OF CHARLOTTE, Defendant.
Pamela A. Hunter, for plaintiff-appellant. Robinson, Bradshaw & Hinson, P.A., by Charles E. Johnson, Angelique R. Vincent–Hamacher, and Heyward H. Bouknight, for defendant-appellee.
Appeal by plaintiff from order entered 14 June 2011 by Judge F. Lane Williamson in Mecklenburg County Superior Court. Heard in the Court of Appeals 3 April 2012. Pamela A. Hunter, for plaintiff-appellant. Robinson, Bradshaw & Hinson, P.A., by Charles E. Johnson, Angelique R. Vincent–Hamacher, and Heyward H. Bouknight, for defendant-appellee.
MARTIN, Chief Judge.
Employee Bonita Cole (“plaintiff”) appeals from the trial court's grant of summary judgment dismissing her claims of wrongful, unconstitutional, and retaliatory discharge against her former employer, City of Charlotte (“defendant”). For the following reasons, we affirm.
Plaintiff began working for the City of Charlotte in the Office of the City Attorney as an Office Assistant V in February 2004. While employed in the Office of the City Attorney, plaintiff received average or below average ratings on her annual reviews. She was twice reprimanded related to two incidents which the City Attorney, DeWitt McCarley (“McCarley”), felt evidenced dishonesty and a lack of integrity. The first incident involved plaintiff illegally using her mother's handicap parking placard to park in the Charlotte -Mecklenberg Police Department (“CMPD”) handicap parking spaces for her own convenience in May 2004. McCarley received a report regarding plaintiff's conduct from the CMPD and raised the issue with plaintiff, who admitted to the violation. The second incident occurred on 14 March 2008, when one of the City's security guards reported that plaintiff may have brought mace, a prohibited item at that time, into the Government Center building. During McCarley's investigation of this incident, plaintiff was uncooperative and gave inconsistent statements regarding what had happened. McCarley prepared a written summary of the incident and expressly warned plaintiff that “[a]ny future incidents indicating dishonesty or lack of integrity will be cause for disciplinary action up to and including dismissal.”
On 1 June 2008, a person implying he was a current employee sent an email under the alias “Matthew Simpson” to the Mayor, City Manager, and certain City Council members making accusations against the City Attorney's office and personal attacks on particular personnel, including McCarley. The letter specifically alleged that the Office engaged in discriminatory hiring practices with regard to African American males. McCarley conducted an investigation regarding the email, and when he questioned plaintiff about the email, she denied writing it. However, McCarley ultimately determined that plaintiff was the only person who could have sent the email; plaintiff was the only staff member who had worked directly with the individuals named, had expressed similar grievances in the past, and had reason to be a “disgruntled” employee.
Shortly thereafter, on 25 June 2008, McCarley terminated plaintiff's employment. Plaintiff filed a written grievance and McCarley reviewed his decision to terminate her, but upheld his decision in a letter to plaintiff dated 10 July 2008. Three days later, another “Matthew Simpson” email surfaced concerning, in part, plaintiff's recent termination. Plaintiff again appealed her termination under the City's Grievance Procedure to the City Manager's Office, which reviewed and upheld her termination. Plaintiff filed a complaint on 23 June 2010 asserting claims of wrongful, unconstitutional, and retaliatory discharge. Defendant's motion for summary judgment was granted on 14 June 2011, dismissing plaintiff's complaint with prejudice. Plaintiff appeals.
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The sole issue on appeal is whether the trial court erred in granting summary judgment and dismissing plaintiff's claims for wrongful, unconstitutional or retaliatory discharge under the North Carolina Constitution or the public policy of the State of North Carolina.
“Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that ‘there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.’ “ In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)). In opposing summary judgment, a plaintiff “may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” N.C. Gen.Stat. § 1A1, Rule 56(e) (2011).
Plaintiff contends defendant violated public policy by terminating her without just cause for engaging in protected speech under article I, section 14 of the North Carolina Constitution based on defendant's mistaken belief that she sent the “Matthew Simpson” email, although she maintains she did not do so.
“North Carolina courts have consistently held that in the absence of some form of contractual agreement between an employer and employee creating a definite period of employment, the employment is presumed to be an at-will employment, terminable at the will of either party, irrespective of the quality of the [employee's performance].” Guarascio v. New Hanover Health Network, Inc., 163 N.C.App. 160, 164, 592 S.E.2d 612, 614 (internal quotation marks omitted), disc. review denied,358 N.C. 375, 597 S.E.2d 130 (2004). “Although the discharge of an employee-at-will normally does not support an action for wrongful termination of employment, North Carolina courts have developed a public policy exception” which allows such an employee to bring a wrongful discharge claim if the termination violated the public policy of North Carolina. Teleflex Info. Sys., Inc. v. Arnold, 132 N.C.App. 689, 691, 513 S.E.2d 85, 87 (1999). The public policy exception applies when an employee is fired in violation of rights guaranteed by the State Constitution, such as free speech. Lenzer v. Flaherty, 106 N.C.App. 496, 515, 418 S.E.2d 276, 287,supersedeas denied and disc. review denied, 332 N.C. 345, 421 S.E.2d 348 (1992). For a public employee to assert a claim for wrongful or retaliatory discharge in violation of his right to freedom of speech under the North Carolina Constitution, the plaintiff must forecast “that the speech complained of qualified as protected speech or activity and that such protected speech or activity was the motivating or but for cause for his discharge ....“ Swain v. Elfland, 145 N.C.App. 383, 386–87, 550 S.E.2d 530, 533 (internal quotation marks omitted), cert. denied, 354 N.C. 228, 554 S.E.2d 832 (2001).
Here, plaintiff is an employee-at-will. Thus, to challenge her termination she must be able to show that her employer, in discharging her, violated the public policy of North Carolina. Plaintiff has failed to establish a claim for wrongful, unconstitutional, or retaliatory discharge based on a violation of her right to free speech. Plaintiff has consistently denied sending the “Matthew Simpson” email since first questioned about it during McCarley's investigation of the incident. Without bringing forth evidence that she engaged in protected speech, plaintiff cannot allege that her termination violated her right to free speech. See Fogarty v. Boles, 121 F.3d 886, 891 (3d Cir.1997).
Furthermore, even if plaintiff had asserted that she wrote the email in question, she has not brought forth evidence that the speech contained therein was the motivating factor behind her termination. Evidence tends to show that defendant had legitimate business reasons for terminating plaintiff based on the quality of her work, the parking and mace incidents, and her conduct during the investigation of the “Matthew Simpson” email. Although she disagrees with McCarley's decision to terminate her employment, plaintiff acknowledges that McCarley had serious concerns about her integrity and honesty based on the prior incidents as well as the investigation of the email. Therefore, plaintiff's arguments are wholly without merit.
Affirmed. Judges BRYANT and McCULLOUGH concur.
Report per Rule 30(e).