Opinion
1:02CV00904
November 17, 2003
MEMORANDUM OPINION and ORDER
Plaintiff Larry Johnson brings this employment discrimination action against his former employer, Defendant Food Lion, LLC ("Food Lion"). Plaintiff alleges a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3, a breach of his employment contract, and wrongful discharge. The matter is before the court on Defendant's motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Because Plaintiff has stated a claim for employment retaliation in violation of Title VII, the court will deny Defendant's motion to dismiss Plaintiff's Title VII claim. The court will, however, grant Defendant's motion to dismiss Plaintiff's breach of contract and wrongful discharge claims because Plaintiff has failed to state claims upon which relief may be granted.
I. BACKGROUND
The facts stated in the light most favorable to Plaintiff are as follows.
Plaintiff Larry Johnson was employed by Food Lion from 1990 until 2001. After an alleged incident of sexual harassment, Plaintiff's wife, who also worked for Food Lion, initiated a lawsuit against Food Lion. While the lawsuit was pending, Plaintiff was contacted several times by "managers and employees" of Food Lion inquiring into the nature of his participation in his wife's lawsuit. (Compl. ¶ 10.) Plaintiff was told not to cooperate in his wife's lawsuit. Subsequently, he attended an employment review where he was given an unsatisfactory rating and threatened with termination. In July 2001, Plaintiff alleges that he was constructively discharged from his employment. In August 2001, Food Lion took deposition testimony from Plaintiff in connection with Plaintiff's wife's case. At a later date, Plaintiff was offered re-employment with Food Lion, which offer was later withdrawn. Plaintiff was informed that Food Lion's legal department had raised objections to rehiring Plaintiff. Plaintiff filed this lawsuit on September 16, 2002.
II. DISCUSSION
A. Standard of Review
Defendant moves to dismiss Plaintiff's complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
Plaintiff's Affidavit in Support of Plaintiff's Motion for Leave to Amend will not be considered for purposes of Defendant's motion to dismiss. Documents that are not attached to the Plaintiff's complaint or incorporated by reference are excluded from consideration. HOM, Ltd. v. Hatfield, 71 F. Supp.2d 500, 502 (D. Md. 1999); Wise v. United States, 8 F. Supp.2d 535, 541 (E.D. Va. 1998).
When considering a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court must evaluate the complaint in the light most favorable to the plaintiff, taking factual assertions as true. Buser v. Southern Food Serv., Inc., 73 F. Supp.2d 556, 559 (M.D.N.C. 1999). The court should dismiss a claim only when "it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim."Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir. 1989) (quoting Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir. 1969)).
B. Retaliation in Violation of Title VII
The retaliation statute, 42 U.S.C. § 2000e-3(a), provides, in pertinent part:
[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
In order to establish a prima facie case of retaliation under this statute, a plaintiff must show (1) that he engaged in protected activity; (2) an adverse employment action; and (3) a causal connection between the activity and the adverse action. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 650 (4th Cir. 2002); Anderson v. G.D.C., Inc., 281 F.3d 452, 458 (4th Cir. 2002). The Fourth Circuit has expansively interpreted what constitutes protected activity under the statute's participation clause, indicating that "the provision is meant to sweep broadly." Glover v. South Carolina Law Enforcement Div., 170 F.3d 411, 414 (4th Cir. 1999) (citing Merritt v. Dillard Paper Co., 120 F.3d 1181, 1186 (11th Cir. 1997)). To qualify as an "adverse employment action," the employer must have engaged in activity adversely affecting the "terms, conditions, or benefits of employment." Von Gunten v. Maryland, 243 F.3d 858, 866 (4th Cir. 2001).
In the present case, Plaintiff's amended complaint states that he was deposed in connection with his wife's lawsuit against Food Lion. Deposition testimony constitutes participation in a Title VII proceeding for purposes of § 2000e-3(a). Glover, 170 F.3d at 413;see also Merritt, 120 F.3d at 1186. Participation may be found despite the fact that the deposition is taken by the defendant and that the plaintiff is an unwilling participant.Merritt, 120 F.3d at 1186 (concluding that "[o]ne who has participated as a reluctant deponent has `participated in any manner'"). As such, Plaintiff has sufficiently alleged participation in a protected activity.
Plaintiff cites both his alleged constructive discharge as well as Defendant's failure to rehire as evidence of adverse employment action. Constructive discharge is established by showing that "an employer `deliberately' makes the `working conditions' of the employee `intolerable' in an effort to induce the employee to quit." Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1353-54 (4th Cir. 1995) (quoting Bristow v. Daily Press. Inc., 770 F.2d 1251, 1255 (4th Cir. 1985)). Whether Plaintiff's working conditions rise to the level of intolerable, thereby creating an adverse employment action, is necessarily an intensely factual inquiry. For purposes of a Rule 12(b)(6) motion, though, Plaintiff need not establish a prima facie case of retaliation. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 997 (2002) (stating that a Title VII complaint is not held to a higher degree of particularity than that required under Rule 8(a)(2)'s pleading standard). Whatever the merits of Plaintiff's constructive discharge claim, it is apparent that an adverse employment action is alleged on the basis of Defendant's failure to rehire, because § 2000e-3(a) prohibits discrimination against both existing employees and "applicants for employment" on the basis of protected activity.
Finally, Plaintiff has alleged a causal relationship between the protected activity and the adverse employment action. Evaluating the complaint in the light most favorable to Plaintiff, the court finds that Plaintiff has alleged a set of facts supporting a causal relationship between the two events. Having established a protected activity, an adverse employment action, and a causal relationship, Plaintiff has stated a claim for which relief can be granted, and therefore Defendant's motion to dismiss Count One is denied.
Plaintiff asserts in his amended complaint that an offer of employment was withdrawn after the hiring manager spoke with Food Lion's legal department. Although Plaintiff does not offer evidence that Food Lion's action in withdrawing the offer was predicated on Plaintiff's participation in his wife's lawsuit, it is not unreasonable, for purposes of a motion to dismiss, to draw an inference that the legal department was aware of Plaintiff's testimony and that such testimony could have had an impact on the decision to withdraw the offer. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 997 (2002) ("[U]nder a notice pleading system, it is not appropriate to require a plaintiff to plead facts establishing a prima facie case.").
C. Breach of Contract
Under North Carolina law, an employment relationship is terminable at will absent a contract setting a definite period of employment.Kurtzman v. Applied Analytical Indus., Inc., 347 N.C. 329, 331, 493 S.E.2d 420, 422 (1997). Furthermore, "unilaterally promulgated employment manuals or policies do not become part of the employment contract unless expressly included in it."Walker v. Westinghouse Elec. Corp., 77 N.C. App. 253, 259, 335 S.E.2d 79, 83-84 (1985).
In this case, Plaintiff alleges that Food Lion breached his employment contract by failing to properly handle the charges of sexual harassment brought by his wife as required by the employee handbook. Plaintiff's breach of contract claim is not cognizable in North Carolina because he has not alleged that he is anything other than an employee at will. In essence, Plaintiff is attempting to mask a wrongful discharge claim as a breach of contract. A wrongful discharge claim for an at-will-employee under North Carolina law does not lie in contract, but in tort.Doyle v. Asheville Orthopaedic Associates, P.A., 148 N.C. App. 173, 174, 557 S.E.2d 577, 577 (2001), rev. denied, 355 N.C. 348, 562 S.E.2d 278 (2002); Wagoner v. Elkin City Schools' Bd. of Educ., 113 N.C. App. 579, 588, 440 S.E.2d 119, 125, (1994). Had an employment contract existed, though, the terms of the employee handbook would still not supplement the contract. Therefore, Plaintiff's breach of contract claim will be dismissed.
D. Wrongful Discharge
A cause of action for wrongful discharge is only available to at-will-employees. Wagoner, 113 N.C. App. at 588, 440 S.E.2d at 125. A wrongful discharge claim must establish that the discharge was in violation of public policy by showing that "the employee was discharged (1) for refusing to violate the law at the employer's request, (2) for engaging in a legally protected activity, or (3) based on some activity by the employer contrary to law or public policy."Ridenhour v. IBM Corp., 132 N.C. App. 563, 568-69, 512 S.E.2d 774, 778 (citations omitted). Courts have refused to acknowledge the tort of wrongful discharge where the alleged termination is based on a theory of constructive discharge. Hazel v. Medical Action Indus., Inc., 216 F. Supp.2d 541, 550 (W.D.N.C. 2002); Helmstetler v. Borden Chem., Inc., 2002 WL 1602432, at *2 (M.D.N.C. June 13, 2002);Graham v. Hardee's Food Sys., Inc., 121 N.C. App. 382, 385, 465 S.E.2d 558, 560 (1996). As stated in Gravitte v. Mitsubishi Semiconductor America. Inc., "plaintiff must allege facts which indicate that she was in fact `discharged.' If plaintiff voluntarily resigned defendant's employ, she cannot bring a claim for wrongful discharge." 109 N.C. App. 466, 472, 428 S.E.2d 254, 258 (1993).
Plaintiff alleges that he was constructively discharged when he was told that his performance was unsatisfactory and was threatened with termination. Plaintiff asserts that Food Lion's actions were in retaliation for his participation in his wife's lawsuit against Food Lion. In support of his wrongful discharge claim, Plaintiff points toWilliams v. Hillhaven Corp., 91 N.C. App. 35, 370 S.E.2d 432 (1988). In Williams, the court found that the plaintiff had stated a wrongful discharge claim where the defendant terminated the plaintiff in retaliation for her testimony in a proceeding against the defendant. Id. at 41-42, 370 S.E.2d at 426. The Williams case is inapposite because public policy considerations only come into view where there is an actual termination, not a mere constructive discharge. Plaintiff's alleged constructive discharge is insufficient as a matter of law to support a claim for wrongful discharge. Therefore, his wrongful discharge claim will be dismissed.
Two North Carolina cases provide apparent support for a constructive discharge theory. In Coman v. Thomas Mfg. Co., the court found a discharge where the plaintiff was informed of a pay reduction in excess of 50%. 325 N.C. 172, 173-74, 381 S.E.2d 445, 446 (1989). Significantly, though, the plaintiff's leaving was not styled as a constructive discharge by the court. The court effectively treated such a severe wage reduction as the equivalent of actual termination. InDoyle v. Asheville Orthopaedic Associates, P.A., the court acknowledged a claim of constructive discharge, but the opinion was confined to assessing the claim where an employment contract was in existence. 148 N.C. App. 173, 177, 557 S.E.2d 577, 579 (2001) ("We recognize the viability of her claim in the context of interpreting whether constructive termination by her employer triggered the termination payment provision of the employment contract.").
III. CONCLUSION
For the foregoing reasons,
IT IS ORDERED that Defendant's motion to dismiss Plaintiff's Title VII claim [2] is denied. Defendant's motion to dismiss Plaintiff's breach of contract and wrongful discharge claims [2] is granted.