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finding allegations that defendants made false and defamatory statements about plaintiffs not sufficient to state a claim of extreme and outrageous conduct
Summary of this case from Maisha v. Univ. of N.C.Opinion
1:02CV00728
December 19, 2003
MEMORANDUM OPINION
This matter is presently before the Court on Defendants Albani-Bayeux, Inc. ("Albani-Bayeux" or "ABI"), Erin Litaker ("Litaker"), and Robert Richardson's ("Richardson") Motion to Dismiss and/or Motion for Summary Judgment [Document #8] on Plaintiff Crystal Sabrowski's ("Plaintiff or "Sabrowski") state-law claims for intentional infliction of emotional distress, negligent infliction of emotional distress, wrongful discharge, and invasion of privacy.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
As stated in Plaintiffs Complaint [Document #1], Plaintiff began her employment with Albani-Bayeux on or about October 24, 1988, and was terminated on October 25, 1999. At the time of the conduct forming the basis for Plaintiffs claims against Defendants, Litaker was the plant manager at the facility where Plaintiff was employed, and Richardson was that facility's personnel manager. On or about August 12, 1999, Plaintiff gave Litaker a note from her mental health therapist indicating that she needed a week off from work. The next day, Litaker made several phone calls regarding Plaintiff that were related to her medical condition. Specifically, Plaintiff alleges that Litaker called Plaintiff's sister and "asked probing and intrusive questions . . . concerning [Plaintiff's] alleged use of drugs and mental health, and made false and defamatory statements concerning the plaintiff. . . ." (Compl. ¶ 8.) She also alleges that Litaker called her former husband and also had conversations about her with other ABI employees. Plaintiff alleges that Litaker made the following untrue statements about Plaintiff to other persons: (1) her job was in jeopardy; (2) she came to work "stoned out of her mind"; (3) she fabricated her therapist's note; (4) she was a threat to other employees; (5) she was seeing a "head doctor"; (6) she was experiencing severe emotional problems; (7) she attended counseling every week; (8) she possibly had a problem with alcohol; (9) she made a bomb threat; (10) she was "mentally ill," "mentally disturbed," and "probably in a (mental) hospital"; and (11) she stole money from ABI. (Compl. ¶ 14.)
During 1999, Plaintiff took a leave of absence from Albani-Bayeux pursuant to the Family and Medical Leave Act. On October 25, 1999, Plaintiff returned to work after receiving a release from her physician. Plaintiff alleges that Richardson refused to allow her to return to work until she informed him what medications she was taking. Plaintiff alleges that because she refused to provide this information, Richardson and Litaker terminated her employment with Albani-Bayeux.
Plaintiff then filed this lawsuit against Defendants in the Superior Court of Lee County, North Carolina, on August 12, 2002. [Document #1]. On September 4, 2002, Defendants removed the case to this Court on the basis of diversity jurisdiction because Plaintiff is a citizen of Virginia, Defendant Albani-Bayeux is a North Carolina corporation with its principal place of business in North Carolina, and Defendants Litaker and Richardson are citizens and residents of North Carolina. Plaintiff did not move to remand the case within the thirty-day time period prescribed by 28 U.S.C. § 1447(c). Because there is diversity of citizenship and the amount in controversy, exclusive of interest and costs, is greater than $75,000, this matter is properly before this Court. See 28 U.S.C. § 1332(a).
The Court notes that in their Notice of Removal, Defendants erroneously asserted that "[t]he matter in controversy exceeds, exclusive of interest and costs, the sum of fifty thousand dollars ($50,000)," instead of the sum of $75,000 that is required for diversity jurisdiction under 28 U.S.C. § 1332(a). (See Notice Removal at 2.) The Court notes that based upon the multiple counts in her Complaint, Plaintiff alleged total damages in excess of $70,000. Because neither party has contested the Court's jurisdiction of this case, the Court finds no reason to question that the amount in controversy in this matter exceeds the $75,000 minimum as required by 28 U.S.C. § 1332(a) for this Court to exercise jurisdiction.
II. DISCUSSION
A. Standard for Motion to Dismiss
In their Motion to Dismiss and/or Motion for Summary Judgment, Defendants argue that Plaintiff has failed to state a claim with respect to any of her causes of action. Defendants argue, therefore, that this Court should dismiss all of Plaintiff's claims. Plaintiff contends, however, that her Complaint is adequate to support each of her claims against Defendants and therefore Defendants' Motion should be denied.
As this Court has previously held in Beck v. City of Durham, 129 F. Supp.2d 844 (M.D.N.C. 2000), with respect to a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted, dismissals are allowed "only in very limited circumstances." Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir. 1989). Generally, a court should not dismiss a complaint for failure to state a claim "unless it appears certain that the plaintiff can proveno set of facts which would support its claim and would entitle it to relief." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). In making this determination, a court must view the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded factual allegations. Randall v. United States, 30 F.3d 518, 522 (4th Cir. 1994).
In the present case, Defendants have captioned their Motion as a Motion to Dismiss and/or Motion for Summary Judgment. Therefore, as an alternative to dismissing Plaintiff's claims pursuant to Rule 12(b)(6), Defendants appear to be asking this Court to grant them summary judgment pursuant to Rule 56. When a court faced with a Rule 12(b)(6) motion elects to consider matters outside the pleadings, Rule 12(b) provides that "the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(b). Defendants, however, have not attached any affidavits or other evidence to their Motion to Dismiss and/or Motion for Summary Judgment. Thus, it is unclear to the Court whether Defendants are even moving the Court to convert their Motion to Dismiss pursuant to Rule 12(b)(6) to a motion for summary judgment pursuant to Rule 56. Because Defendants have not presented any matters outside of the pleadings for the Court to consider with respect to Plaintiff's claims, the Court declines to convert Defendants' Motion to Dismiss to a Motion for Summary Judgment. The Court notes, however, that Plaintiff has included affidavits and other evidence both within and attached to her Response brief in case this Court were to convert Defendants' Motion to Dismiss to a motion for summary judgment. Because the Court will treat Defendants' Motion as a motion to dismiss, the Court will not consider any matters outside of Plaintiff's Complaint in ruling on Defendants' Motion.
B. Plaintiff's Claims
1. Intentional Infliction of Emotional Distress
Plaintiff's first claim is for intentional infliction of emotional distress ("IIED") against both Litaker and Albani-Bayeux. In North Carolina, the tort of intentional infliction of emotional distress "consists of: (1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress to another. The tort may also exist where defendant's actions indicate a reckless indifference to the likelihood that they will cause severe emotional distress." Dickens v. Puryear, 302 N.C. 437, 452, 276 S.E.2d 325, 335 (1981). To satisfy the first element's requirement that the defendant's conduct was extreme and outrageous, the plaintiff must show that the conduct was "`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.'" Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 493, 340 S.E.2d 116, 123 (1986) (quoting Restatement (Second) of Torts ¶ 46 cmt. d (1965)). "The determination of whether the conduct alleged was intentional and was extreme and outrageous enough to support such an action is a question of law for the trial judge." Lenins v. K-Mart Corp., 98 N.C. App. 590, 599, 391 S.E.2d 843, 848 (1990). As this Court has previously stated, "[I]n employment actions, North Carolina courts have been reluctant to find intentional infliction of emotional distress claims actionable. Kovack v. Sts. Aves. Rest. Corp., No. 1:00CV145, 2001 WL 604179, at *2 (M.D.N.C. Apr. 27, 2001) (internal quotations omitted). Therefore, "even when a defendant's actions during the course of employment are considered `intemperate,' such conduct will generally be insufficient to state a cause of action for intentional infliction of emotional distress." Id. The plaintiff's burden to establish extreme and outrageous conduct, "particularly in the employment setting," has therefore been characterized as "extremely rigorous." Thomas v. N. Telecom, Inc., 157 F. Supp.2d 627, 635 (M.D.N.C. 2000).
To state an IIED claim, therefore, Plaintiff must first demonstrate that Litaker's conduct was "extreme and outrageous." In support of her claim that Litaker's conduct was "extreme and outrageous," Plaintiff argues that Litaker's "probing and intrusive questions of Plaintiff s sister" and his "false and defamatory statements concerning the plaintiff which were known by him to be false, or were spoken with reckless disregard as to their truth or falsity, and were made maliciously with the intent to harm the plaintiff," support her claim that Litaker's conduct was "extreme and outrageous." (See Compl. ¶¶ 8, 18.) Plaintiff further lists eleven specific statements in her Complaint that fall into these categories. (Id. ¶ 14.) In their Motion to Dismiss and/or Motion for Summary Judgment, Defendants do not dispute that Litaker made the statements Plaintiff alleges, but instead argue that, as a matter of law, "none of [these statements] rise to the level of extreme and outrageous conduct." (Mot. Dismiss /or Mot. Summ. J. at 4.) Defendants cite Daniel v. Carolina Sunrock Corp., 110 N.C. App. 376, 430 S.E.2d 306, rev'd on other grounds per curiam, 335 N.C. 233, 436 S.E.2d 835 (1993), for the proposition that the tort of intentional infliction of emotional distress "`clearly does not extend to mere insults, indignities, [or] threats.'"Id. at 383, 430 S.E.2d at 310 (quoting Restatement (Second) Torts § 46 cmt. d (1965)). In Daniel, the North Carolina Court of Appeals upheld defendants' motion to dismiss plaintiff's claim for intentional infliction of emotional distress because the evidence failed to show "extreme and outrageous conduct" as a matter of law where the plaintiff's fellow employees, among other indignities, "made harassing phone calls to the home of plaintiff and to the homes of plaintiff's sister-in-law and mother." Id. at 382-84, 430 S.E.2d at 310-11.
Defendants further cite Trought v. Richardson, 78 N.C. App. 758, 338 S.E.2d 617 (1986), for the proposition that wrongful discharge and slander do not constitute extreme and outrageous conduct. (Defs. Mot. Dismiss /or Mot. Summ. J. at 3.) In Trought, the plaintiff was discharged from her job. Trought, 78 N.C. App. at 759, 338 S.E.2d at 618. Two of her superiors then held meetings with different groups of employees and informed them that the "plaintiff had been discharged for a `lack of credibility.'" Id. In support of her TIED claim, "the plaintiff alleged that [her superiors] knew that her standing in [her] profession and her job were the most important aspects of her life." Id. at 760, 338 S.E.2d at 618. She further argued that by alleging that her superiors had wrongfully discharged and slandered her, she had stated a claim for intentional infliction of emotional distress. The court, however, disagreed with the plaintiff and held that her superiors' conduct was not "extreme and outrageous."
In response to Defendants' arguments, Plaintiff states, without any supporting case law, that "since the conduct at issue was in direct violation of law and company policy, was outrageous, or at least in conscious disregard of Plaintiff's rights, and caused her to have a relapse of her Bipolar disorder, and miss additional work, that a complete cause of action has been stated, and been supported by [the] evidence, on . . . intentional . . . infliction of emotional distress." (Pl's Resp. Defs.' Mots. Dismiss Summ. J. at 14 (citation omitted).) The Court, however, finds that Plaintiff's Complaint has failed to identify any conduct which can be considered extreme and outrageous under North Carolina law. Therefore, Plaintiff fails to state a claim for intentional infliction of emotional distress against Defendant Litaker.
Plaintiff also alleged that to the extent that Litaker is liable, Albani-Bayeux would also be liable for Litaker's conduct against Plaintiff because either Litaker's conduct was done within the course and scope of his employment or because Albani-Bayeux ratified his conduct. In North Carolina, an employer may be liable for an employee's actions under the "theory of respondeat superior when the employee's act was either expressly authorized, committed within the scope and in furtherance of the employer's business, or subsequently ratified by the employer." Stanley v. Brooks, 112 N.C. App. 609, 613, 436 S.E.2d 272, 274 (1993) (citing Medlin v. Bass, 327 N.C. 587, 398 S.E.2d 460 (1990)). An employee's act is within the course and scope of his employment "`[i]f the act of the employee was a means or method of doing that which he was employed to do. . . .'"Hogan, 79 N.C. App. at 491, 340 S.E.2d at 122 (quotingWegner v. Delly-Land Delicatessen, Inc., 270 N.C. 62, 66, 153 S.E.2d 804, 808 (1967)) (alteration in original). Therefore, even "`though the act be unlawful and unauthorized or even forbidden, the employer is liable for the resulting injury, but he is not liable if the employee departed, however briefly, from his duties in order to accomplish a purpose of his own, which purpose was not incidental to the work he was employed to do.'" Id. (quoting Wegner v. Delly-Land Delicatessen, Inc., 270 N.C. 62, 66, 153 S.E.2d 804, 808 (1967)). Further, "[i]n order to show that the wrongful act of an employee has been ratified by his employer, it must be shown that the employer had knowledge of all material facts and circumstances relative to the wrongful act, and that the employer, by words or conduct, shows an intention to ratify the act." Id. at 492, 340 S.E.2d at 122 (citing Carolina Equip. Parts Co. v. Anders, 265 N.C. 393, 144 S.E.2d 252 (1965)).
Even assuming that Plaintiff's Complaint has stated a claim that Litaker's conduct either was done within the course and scope of his employment or that Albani-Bayeux ratified his conduct, Plaintiff's IIED claim against Albani-Bayeux is still ultimately derivative of her IIED claim against Litaker. See Guthrie v. Conroy, 152 N.C. App. 15, 24, 26, 567 S.E.2d 403, 410, 411 (2002) (holding that an employer could not be liable on plaintiff's claims for intentional and negligent infliction of emotional distress based on a theory of respondeat superior where plaintiff had failed to prove the claims against the employee). Therefore, Plaintiff's IIED claim against Albani-Bayeux must fail because she has failed to state a claim for IIED against Litaker. For the foregoing reasons, therefore, Plaintiff's claims for intentional infliction of emotional distress against Defendant Litaker and Defendant Albani-Bayeux are hereby dismissed.
2. Negligent Infliction of Emotional Distress
As an alternative to her IIED claim against Litaker and, therefore, Albani-Bayeux, Plaintiff's second claim is a claim for negligent infliction of emotional distress against all Defendants. In order to state a negligent-infliction-of-emotional-distress claim, "`a plaintiff must allege that (1) defendants negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause severe emotional distress . . ., and (3) the conduct did in fact cause severe emotional distress.'" McAllister v. Ha, 347 N.C. 638, 645, 496 S.E.2d 577, 582-83 (1998) (quoting Johnson v. Ruark Obstetrics Gynecology Assocs., 327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990)). In her Complaint, Plaintiff alleges that "the aforesaid conduct of the Defendants Richardson and Litaker was negligent." (Compl. ¶ 25.) Defendants contend, however, that Plaintiff's Complaint is insufficient to state a claim for negligent infliction of emotional distress because Plaintiff "failed to allege any negligent conduct on the part of the Defendants." (Mot. Dismiss /or Mot. Summ. J. at 4.) Defendants argue that "Plaintiff's Complaint lists various [instances of] intentional conduct and torts but contains only a conclusory allegation that the `conduct of Defendants Richardson and Litaker was negligent.'" (Id. (quoting Compl. ¶ 25).)
The Court agrees with Defendants' argument that Plaintiff has failed to allege any negligent conduct on the part of Defendants. In response to Defendants' arguments that Plaintiff failed to allege any negligent conduct by Defendants, Plaintiff again relies on the following statement: "[S]ince the conduct at issue was in direct violation of law and company policy, was outrageous, or at least in conscious disregard of Plaintiff's rights, and caused her to have a relapse of her Bipolar disorder, and miss additional work, that a complete cause of action has been stated, and been supported by [the] evidence, on . . . negligent infliction of emotional distress." (Pl.'s Resp. Defs.' Mots. Dismiss Summ. J. at 14 (citation omitted).) As this Court has previously held, however, "[w]hen the plaintiff's complaint alleges acts . . . that are intentional in nature, and simply concludes that the acts were committed negligently, it is insufficient to state a claim for negligent infliction of emotional distress." Barbier v. Durham County Bd. of Educ., 225 F. Supp.2d 617 (M.D.N.C. 2002) (holding that allegations of intentional sexual harassment did not support a claim for negligent infliction of emotional distress). Although not actionable under the circumstances of this case, litaker's and Richardson's conduct was intentional in nature and not negligently done. Further, Plaintiff has not alleged any independent negligent conduct on the part of Defendant Albani-Bayeux. Plaintiff's Complaint does not allege that Albani-Bayeux "failed to take action to prevent or stop [Defendants'] harassing and abusive conduct towards Plaintiff." See id. at 629 (internal quotations omitted) (holding that these allegations in a plaintiff's complaint supported the plaintiff's negligent-infliction-of-emotional-distress claim against the plaintiff's employer). As discussed above with respect to Plaintiff's IIED claim, in order to hold Albani-Bayeux vicariously liable, Plaintiff must first state claims against Litaker or Richardson, which she has failed to do.
For the foregoing reasons, therefore, Plaintiff's claims for negligent infliction of emotional distress are dismissed with respect to all Defendants.
3. Wrongful Discharge in Violation of Public Policy
Plaintiff's third claim, asserted against all Defendants, is for wrongful discharge because she was terminated "for purposes that contravene public policies." (Compl. ¶ 30.) Plaintiff alleges that she was terminated for refusing to "disclos[e] . . . confidential medical information without proper and lawful authorization" (Compl. ¶ 12(c)) and therefore her "employment relationship is protected by the public policy of the State of North Carolina protecting the privacy of medical and employee records." (Pl's Resp. Defs.' Mots. Dismiss Summ. J. at 17.) In their Motion to Dismiss and/or Motion for Summary Judgment, Defendants contend, however, that Plaintiff's claims must fail because North Carolina has not expressed a public policy proscribing the conduct Plaintiff has alleged that Defendants engaged in.
As this Court discussed in Buser v. Southern Food Service, Inc., 73 F. Supp.2d 556, 564 (M.D.N.C. 1999), the North Carolina Supreme Court's first decision establishing a public policy exception to the employment-at-will doctrine is Coman v. Thomas Manufacturing Co., 325 N.C. 172, 381 S.E.2d 445 (1989). In Coman, the North Carolina Supreme Court stated,
"[W]hile there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy. A different interpretation would encourage and sanction lawlessness, which law by its very nature is designed to discourage and prevent."Id. at 175, 381 S.E.2d at 447 (quoting Sides v. Duke Univ., 74 N.C. App. 331, 342, 328 S.E.2d 818, 826 (1985)) (alteration in original). The Coman court stated that "[p]ublic policy has been defined as the principle of law which holds that no citizen can lawfully do that which has a tendency to be injurious to the public or against the public good." Id. at 175 n. 2, 381 S.E.2d at 447 n. 2. The North Carolina Supreme Court has more recently noted that "[a]lthough the definition of `public policy' . . . does not include a laundry list of what is or is not `injurious to the public or against the public good,' at the very least public policy is violated when an employee is fired in contravention of express policy declarations contained in the North Carolina General Statutes." Amos v. Oakdale Knitting Co., 331 N.C. 348, 353, 416 S.E.2d 166, 169 (1992) (footnote omitted).
Defendants seem to argue that Plaintiff's wrongful discharge claim is based only on "public policy embodied in federal statues [sic], regulations or the United States Constitution." (See Defs.' Mot. Dismiss /or Mot. Summ. J. at 6 (internal quotation marks omitted).) In her Complaint, however, Plaintiff alleges that she "had the right under federal and state law not to be forced to divulge her current medications to anyone at ABI if released by her physician to return to work. . . ." (Compl. ¶ 12 (emphasis added).) She therefore alleges that her termination violated "the public policy, arising under both federal and North Carolina laws, against disclosure of confidential medical information without proper and lawful authorization. . . ." (Compl. ¶ 12(c) (emphasis added).) Based on Plaintiff's Complaint, it is unclear to the Court, however, on what pronouncements by either the North Carolina legislature or the North Carolina courts Plaintiff bases her statement that North Carolina has articulated a public policy protecting employees from disclosing medical information to their employers. In her Response to Defendants' Motions to Dismiss and for Summary Judgment, Plaintiff seems to argue that this public policy is found in the provisions of the Americans with Disabilities Act regulating medical examinations and inquiries. (See Pl's Resp. Defs.' Mots. Dismiss Summ. J. at 19-20 (quoting 42 U.S.C. § 12112(d)).) With respect to medical examinations of current employees, the ADA provides, in pertinent part:
(A) Prohibited examinations and inquiries
A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.
(B) Acceptable examinations and inquiries
A covered entity may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site. A covered entity may make inquiries into the ability of an employee to perform job-related functions.42 U.S.C. § 12112(d)(4). Plaintiff seems to argue that this Court should read the ADA's requirements regarding medical examinations and inquiries into the public policy of North Carolina through the North Carolina Equal Employment Practices Act ("NCEEPA"), North Carolina General Statutes sections 143-422.1 to 143-422.3. This Act states,
It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees.Id. § 143-422.2. Plaintiff, however, failed to identify, either in her Complaint or in her Response to Defendants' Motion to Dismiss and for Summary Judgment, any expression by the North Carolina legislature or the North Carolina courts incorporating the provisions of 42 U.S.C. § 12112 into the public policy of North Carolina or enunciating a public policy against employers requiring employees to disclose medical information. The NCEEPA states a public policy against discrimination on the basis of "handicap," or disability, but does not include a public policy statement prohibiting employers from making medical inquiries of their employees, such as Plaintiff has asserted here.
The Court notes, however, that the North Carolina legislature has enacted the North Carolina Persons with Disabilities Protection Act ("NCPDPA"), which does include provisions dealing with medical examinations and inquiries by employers. N.C. Gen. Stat. §§ 168A-1 to 12. This Act is similar, but not identical to, the ADA. In section 168A-2, the legislature declared the purpose of the North Carolina Persons with Disabilities Protection Act:
(a) The purpose of this Chapter is to ensure equality of opportunity, to promote independent living, self-determination, and economic self-sufficiency, and to encourage and enable all persons with disabilities to participate fully to the maximum extent of their abilities in the social and economic life of the State, to engage in remunerative employment, to use available public accommodations and public services, and to otherwise pursue their rights and privileges as inhabitants of this State.
(b) The General Assembly finds that: the practice of discrimination based upon a disabling condition is contrary to the public interest and to the principles of freedom and equality of opportunity. . . .
The purpose of the NCPDPA is similar to the purpose of the ADA, which states, in pertinent part, that its purpose is "(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities; [and] (2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities. . . ." 42 U.S.C. § 12101 (b).
North Carolina General Statutes section 168A-5 defines the practices that are prohibited by the NCPDPA. It provides, in pertinent part, that "[i]t is a discriminatory practice for . . . [a]n employer to fail to hire or consider for employment or promotion, to discharge, or otherwise to discriminate against a qualified person with a disability on the basis of a disabling condition with respect to compensation or the terms, conditions, or privileges of employment. . . ." N.C. Gen. Stat. § 168A-5(a). The NCPDPA, however, does not contain a provision like 42 U.S.C. § 12112(d) that specifically prohibits employers from requiring medical examinations or making inquiries of its employees to determine the nature or severity of their perceived disabilities. Section 168A-5, provides, however, that employers may not discriminate against their employees on the basis of disability. With respect to medical examinations and inquiries, section 168A-5(b) further provides that the following actions by an employer do not constitute discrimination in violation of the NCPDPA:
(5) To inquire whether a person has the ability to perform the duties of the job in question;
(6) To require or request a person to undergo a medical examination, which may include a medical history, for the purpose of determining the person's ability or capacity to safely and satisfactorily perform the duties of available jobs for which the person is otherwise qualified, or to aid in determining possible accommodations for a disabling condition, provided (i) that an offer of employment has been made on the condition that the person meets the physical and mental requirements of the job with or without reasonable accommodation; and (ii) that the examination, unless limited to determining the extent to which a person's disabling condition would interfere with his or her ability or capacity to safely and satisfactorily perform the duties of the job in question or the possible accommodations for a disabling condition, is required of all persons conditionally offered employment for the same position regardless of disabling condition;
(7) To obtain medical information or to require or request a medical examination where such information or examination is for the purpose of establishing an employee health record. . . .
No North Carolina court has ever construed the medical-examination-and-inquiry provisions of the NCPDPA, nor has a North Carolina court ruled that violating these provisions would contravene the public policy of North Carolina. North Carolina courts have, however, construed the anti-disability-discrimination provisions of the NCPDPA and have recognized that the legislature intended to create a private right of action under the NCPDPA for discrimination on the basis of disability.See, e.g., Stroud v. Harrison, 131 N.C. App. 480, 485-86, 508 S.E.2d 527, 530 (1998). In addition, North Carolina courts have also recognized wrongful discharge claims by employees based on disability discrimination in violation of the NCEEPA as interpreted by the NCPDPA. See Simmons v. Chemol Corp., 137 N.C. App. 319, 322-24, 528 S.E.2d 368, 370-71 (2000); McCullough v. Branch Banking Trust Co., 136 N.C. App. 340, 346-49, 524 S.E.2d 569, 573-75 (2000). In this case, Plaintiff has not brought an action directly under the NCPDPA, nor has she claimed that she was discharged in violation of the public policy of North Carolina prohibiting employers from discriminating against employees on the basis of disability. Rather, Plaintiff argues that she was wrongfully discharged in violation of "the public policy of the State of North Carolina protecting the privacy of medical and employee records." (Pl's Resp. Defs.' Mots. Dismiss Summ. J. at 17.) As the North Carolina courts have noted, however, "[t]he public policy exception to the employment-at-will doctrine is a `narrow exception.'" Roberts v. First-Citizens Bank Trust Co., 124 N.C. App. 713, 721, 478 S.E.2d 809, 814 (1996) (quoting Williams v. Hillhaven Corp., 91 N.C. App. 35, 39, 370 S.E.2d 423, 425 (1988)); See also Kurtzman v. Applied Analytical Indus., Inc., 347 N.C. 329, 333-34, 493 S.E.2d 420, 423 (1997) (characterizing the exceptions to the employment-at-will doctrine as "narrow"). Based on the holdings in Sides, Coman, and Amos, "a definition of `public policy' has evolved which connotes the principle of law that holds no citizen can lawfully do that which has a tendency to be injurious to the public or against the public good." Johnson v. Mayo Yarns, Inc., 126 N.C. App. 292, 296, 484 S.E.2d 840, 842-43 (1997). The parties have not identified, and the Court has not located, any North Carolina case holding that an alleged discharge of an employee for refusing to divulge medical information to an employer would have "a tendency to be injurious to the public or against the public good."
The Court further notes that, based on the language of section 168A-5 and in the absence of North Carolina case law, it is unclear whether Defendants' actions even violate the NCPDPA. Section 168A-5 specifically allows employers "[t]o inquire whether a person has the ability to perform the duties of the job in question . . . [and] [t]o obtain medical information or to require or request a medical examination where such information or examination is for the purpose of establishing an employee health record. . . ." N.C. Gen. Stat. § 168A-5(b)(5) (7). Because Plaintiff has not sued under section 168A-5 of the NCPDPA, the Court need not decide whether Defendants' conduct is prohibited by that section. The question before this Court is whether Defendants' actions violated the public policy of North Carolina as articulated in the NCEEPA with respect to discrimination on the basis of disability. While North Carolina courts have recognized wrongful discharge claims based on disability discrimination under NCEEPA, the North Carolina courts have not read into the public policy of the NCEEPA all the requirements of the NCPDPA. In the context of a wrongful discharge claim, the North Carolina courts have only used the NCPDPA to define the term "handicap" in the NCEEPA for the purposes of determining whether an employee was wrongfully discharged on the basis of handicap in violation of the NCEEPA. See Simmons, 137 N.C. App. at 322-24, 528 S.E.2d at 370-71 (holding that the definition of "handicap" in the NCEEPA is found in the NCPDPA);McCullough, 136 N.C. App. at 346-49, 524 S.E.2d at 573-75 (same). This Court can locate no decision in which a North Carolina court (or a federal court) has held that violating the medical-examination-and-inquiry provisions of section 168A-5 (or the analogous provisions of 42 U.S.C. § 12112(d)) contravenes the public policy of this state. Consistent with this Court's opinion inBuser, therefore, this Court "declines to hold, in the absence of North Carolina precedent, that [discharge in violation of the medical-examination-and-inquiry provisions of the NCPDPA or the ADA] rises to the level of a public policy concern to justify creating a new and distinct Coman claim." Buser, 73 F. Supp.2d at 566; cf. Mullis v. Mechs. Farmers Bank, 994 F. Supp. 680, 688 (M.D.N.C. 1997) (holding that "[t]he NCEEPA does not express any public policy concerning retaliation for opposition to any form of discriminatory practice" and therefore "extension of the public policy exception [to the employment-at-will doctrine] to include protection against retaliation for participation in other activities should come, if at all, from the North Carolina courts"). "Moreover, in light of the fact that the public policy exception to the employment-at-will doctrine is a narrow one, any expansion of public policy in this area is better left to the legislature of North Carolina or its courts." Buser, 73 F. Supp.2d at 567 (citation omitted).
For the foregoing reasons, therefore, Plaintiff's claims for wrongful discharge in violation of public policy are dismissed with respect to all Defendants.
4. Invasion of Privacy
Plaintiff also contends that Defendants' actions constitute an invasion of privacy in violation of the common law of North Carolina. (Compl. ¶¶ 32-35.) In her Complaint, Plaintiff specifically alleges that Richardson "demand[ed] information about Plaintiff's medications" and Litaker made "several calls and conversations both seeking and revealing, and purporting to be revealing [sic] confidential medical information and other private information about the Plaintiff's private affairs. . . ." (Id. ¶ 33.) Defendants argue that Plaintiff's claim for invasion of privacy should be dismissed because "Plaintiff has not set forth the requisite conduct necessary to establish this tort under North Carolina law." (Defs.' Mot. Dismiss / or Mot. Summ. J. at 10-11.)
The North Carolina courts do recognize certain claims for invasions of privacy. In Renwick v. News Observer Publishing Co., 310 N.C. 312, 312 S.E.2d 405 (1984), the North Carolina Supreme Court identified four types of claims for invasion of privacy: "(1) appropriation, for the defendant's advantage, of the plaintiff's name or likeness; (2) intrusion upon the plaintiff's seclusion or solitude or into his private affairs; (3) public disclosure of embarrassing private facts about the plaintiff; and (4) publicity which places the plaintiff in a false light in the public eye." Id. at 322, 312 S.E.2d at 411 (emphasis omitted). North Carolina, however, does not recognize the third and fourth types of claims. See Hall v. Post, 323 N.C. 259, 265, 372 S.E.2d 711, 714 (1988) (refusing to recognize the invasion-of-privacy tort of public disclosure of private facts);Renwick, 310 N.C. at 326, 312 S.E.2d at 413 (refusing to recognize the invasion-of-privacy tort of false light). At issue in this case, however, is the second type of claim, that is, intrusion into seclusion. Intrusion into seclusion is "the intentional intrusion[,] physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns . . . [where] the intrusion would be highly offensive to a reasonable person." Toomer v. Garrett, 155 N.C. App. 462, 479, 574 S.E.2d 76, 90 (2002) (internal quotations omitted) (some alterations in original). In Hall v. Post, the North Carolina Court of Appeals defined the contours of an intrusion claim:
That tort does not depend upon any publicity given a plaintiff or his affairs but generally consists of an intentional physical or sensory interference with, or prying into, a person's solitude or seclusion or his private affairs. Some examples of intrusion include physically invading a person's home or other private place, eavesdropping by wiretapping or microphones, peering through windows, persistent telephoning, unauthorized prying into a bank account, and opening personal mail of another.Hall v. Post, 85 N.C. App. 610, 615, 355 S.E.2d 819, 823 (1987) (citing Restatement (Second) Torts § 652B (1965)) (citations omitted), rev'd on other grounds, 323 N.C. 259, 372 S.E.2d 711 (1988).
In their Motion to Dismiss and/or Motion for Summary Judgment, Defendants correctly state that "the essential elements of the `intrusion tort' are the manner in which the intrusion is made and the level of offensiveness of the conduct." (Defs.' Mot. Dismiss /or Mot. Summ. J. at 10.) Defendants argue, therefore, that Plaintiff's claim for intrusion fails as a matter of law because "merely asking for information about a person's health in a meeting or in a telephone conversation is not so highly offensive to a reasonable person as to establish an invasion of privacy action." (Id.) Defendants further contend that in this case "there is no allegation of any physical or sensory interference with the Plaintiff's solitude or seclusion." (Id.) Plaintiff, however, counters Defendants' arguments by relying on Toomer v. Garrett, which Defendants do not address. In Toomer, the plaintiff sued the North Carolina Department of Transportation and the North Carolina Department of Correction for invasion of privacy for wrongfully accessing and using the contents of his personnel file. Toomer, 155 N.C. App. at 466-67, 479-80, 574 S.E.2d at 82-83, 90. Specifically, the court noted thatToomer had alleged that the "defendants intentionally obtained information from his state personnel file and gave it to unauthorized individuals. He also allege[d] that they intentionally used their authority to allow unauthorized persons to examine plaintiff's file."Id. at 480, 574 S.E.2d at 90. The court in Toomer held that, based on the plaintiff's allegations, the trial court should not have dismissed his complaint. Id. The court reasoned that "[t]he unauthorized examination of the contents of one's personnel file, especially where it includes sensitive information such as medical diagnoses and financial information, like the unauthorized opening and perusal of one's mail, would be highly offensive to a reasonable person."Id.
This Court notes that French v. United States, 55 F. Supp.2d 379 (W.D.N.C. 1999), is also instructive. In French, the plaintiff was terminated from her secretarial position with the Chemical Dependency Unit ("CDU") at the Cherokee Indian Hospital. Id. at 381. After her termination, she applied for reinstatement or a new position, and Al Lossiah, the director of the CDU, wrote a letter to the Tribal Human Resources manager to prevent her from being reinstated.Id. In this letter, Lossiah "disclosed confidential medical information about the Plaintiff without her permission." Id. The district court first dismissed the plaintiff's claim insofar as it was based on Lossiah's public dissemination of her private medical records because mere disclosure of embarrassing private facts is not a tort in North Carolina.Id. at 382. The district court ultimately held, however, that "for the purposes of a motion to dismiss[,] . . . the Plaintiff has stated a claim for intrusion into private affairs which would be highly offensive to a reasonable person. Plaintiff had every expectation of privacy in her medical records and wrongfully obtaining and using those records would be highly offensive to a reasonable person." Id. at 383 (citing Anderson v. Farr Assocs., No. 2:97CV238, 1997 WL 896407 (M.D.N.C. Dec. 12, 1997)).
The Court further finds that Anderson v. Farr Associates, No. 2:97CV238, 1997 WL 896407 (M.D.N.C. Dec. 12, 1997), cited byFrench, is also instructive. In Anderson, the district court held that plaintiff's allegations that the defendants "forced him to participate in group sessions and evaluations which resulted in his disclosure of deeply personal information" and that "such intrusion was highly offensive and was intentional" were sufficient to withstand a motion to dismiss. Id. at *4.
Even in light of Toomer, French, andAnderson, this Court finds that Plaintiff has failed to state a claim for invasion of privacy that is recognized under North Carolina law. Unlike in Toomer and French, the Court finds, viewing Plaintiff's allegations in the light most favorable to Plaintiff, that Plaintiff has not alleged that Defendants engaged in the "[t]he unauthorized examination of the contents of [Plaintiff's] personnel file" or her medical records. Plaintiff's Complaint merely alleges that Plaintiff gave Litaker a doctor's note, which he was authorized to receive. While Litaker clearly should not have relayed Plaintiff's medical information to third parties (e.g., Plaintiff's sister), North Carolina does not recognize invasion-of-privacy claims under the theories of false light or public disclosure of private facts, which, at best, appears to be the invasion of privacy that Litaker committed in this case. Therefore, even Litaker's wrongful dissemination of Plaintiff's confidential information would not be recognized as the tort of intrusion. As the name of the claim suggests, the tort of intrusion protects one against wrongful intrusions into his or her private affairs. The Court, therefore, finds the present case to be distinguishable from Toomer and French because in those cases the defendants intruded into the plaintiff's' privacy by improperly accessing the plaintiff's' medical and employment records. Here there is no evidence of such unlawful intrusion into Plaintiff's medical or employment records by Litaker, Richardson, or Albani-Bayeux.
Plaintiff further argues, however, that Richardson's demands that Plaintiff tell Defendants the medications she was taking before she could return to work constitute prohibited intrusion. Plaintiff argues that her employer was prohibited from asking her for this information. Plaintiff fails, however, to identify any authority supporting her assertion that an employer's request for medical information when an employee returns from medical leave is intrusive or highly offensive. The Court notes that under the ADA, employers may make medical inquiries that are "job-related and consistent with business necessity." 42 U.S.C. § 12112(d)(4)(A). While not using the same language as the ADA, the NCPDPA also specifically allows employers "[t]o inquire whether a person has the ability to perform the duties of the job in question" and "[t]o obtain medical information or to require or request a medical examination where such information or examination is for the purpose of establishing an employee health record. . . ." N.C. Gen. Stat. § 168A-5(b)(5) (7). Therefore, it is unclear if Defendants' inquiry intruded into Plaintiff's private affairs at all because, under the ADA and the NCPDPA, the employer is allowed to make certain medical inquiries of its employees. The Court, however, need not decide whether Defendants' request for Plaintiff's medical information was protected under federal or North Carolina law. Even if Defendants' request was impermissible, merely asking someone who is returning from medical leave to disclose information potentially relevant to her fitness to return to duty is not highly offensive because it may, in fact, be necessary to ensure a safe workplace. The Court notes that, unlike in Anderson, Defendants did not require Plaintiff to disclose her medications in the humiliating setting of a group therapy session. Plaintiff has therefore not alleged any facts that would make the holding of Anderson applicable here.
Further, although not dealing with a claim for intrusion, Porter v. United States Alumoweld Co., Inc., 125 F.3d 243 (4th Cir. 1997), is also instructive on the issue of whether Defendants' request for medical information meets the "highly offensive" prong. InPorter, the Fourth Circuit Court of Appeals held that the employer did not violate the ADA ( 42 U.S.C. § 12112(d)) when it required the plaintiff to undergo, at his own expense, a fitness-for-duty exam before returning from medical leave because the purpose of the exam was job-related and consistent with business necessity. Id. at 246-47. In the present case, Richardson required Plaintiff to provide medical information before she could return from medical leave. Even if Richardson's requirement that Plaintiff disclose the medications she was taking before she returned to work was not entirely job-related or consistent with business necessity, the Court does not accept Plaintiff's argument that this request was highly offensive. As such, the Court finds that Plaintiff has failed to state a claim against Defendants for invasion of privacy under the theory of intrusion into seclusion. Plaintiff's invasion-of-privacy claims are therefore dismissed with respect to all Defendants.
III. CONCLUSION
For the foregoing reasons, therefore, this Court concludes that Defendants' Motion to Dismiss is GRANTED and all of Plaintiff's claims are hereby DISMISSED with prejudice.
An Order and Judgment consistent with this Memorandum Opinion shall be filed contemporaneously herewith.