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Court of Appeals of North Carolina.

Shannon FATTA, Plaintiff, v. M & M PROPERTIES MANAGEMENT, INC., Defendant.

No. COA11–1397.

    Decided: April 17, 2012

Shannon Fatta, pro se plaintiff-appellant. Fisher & Phillips, LLP, by Margaret M. Kingston, for defendant-appellee.

Appeal by plaintiff from order entered 10 March 2011 by Judge Christopher M. Collier in Iredell County Superior Court. Heard in the Court of Appeals 21 March 2012.

Where the trial court did not err in granting defendant's motion for summary judgment as to plaintiff's Retaliatory Employment Discrimination Act and wrongful discharge claims, we affirm the order of the trial court.

Facts and Procedural History

Plaintiff Shannon Fatta was employed by defendant M & M Properties Management, Inc., from 18 January 2010 through 7 February 2010 as a property manager of Value Place Hotel in Shelby, North Carolina. Plaintiff alleged the following: on 21 January 2010, he was injured while cleaning a room as a part of his training; on 2 February 2010, he notified defendant of his injury; on 3 February 2010, defendant issued plaintiff a first and final written disciplinary documentation; on 7 February 2010, defendant terminated plaintiff's employment; on 12 February 2010, defendant was diagnosed with having a hernia by a doctor in Statesville, North Carolina; and that same day, 12 February 2010, five days after his termination, plaintiff filed a worker's compensation claim, Form 18, with the North Carolina Industrial Commission. Shortly thereafter, plaintiff filed a REDA complaint with the North Carolina Department of Labor (“NCDOL”). On 4 May 2010, plaintiff received a right-to-sue letter from the NCDOL.

On 6 July 2010, plaintiff filed a complaint against defendant alleging several causes of action relating to the Retaliatory Employment Discrimination Act (“REDA”) and wrongful termination in violation of North Carolina public policy. On 18 February 2011, defendant filed a motion for summary judgment as to all of plaintiff's claims. Following a hearing held on 28 February 2011, the trial court granted defendant's motion for summary judgment and dismissed plaintiff's claims with prejudice. From this order, plaintiff appeals.


Plaintiff presents the following issues on appeal: whether the trial court erred by granting defendant's motion for summary judgment where there were genuine issues of material fact regarding (I) plaintiff's REDA claim for his work injury; and (II) plaintiff's corresponding wrongful discharge claim. Because these arguments are closely related, we will address them together.

“On appeal, an order allowing summary judgment is reviewed de novo.” Carson v. Grassmann, 182 N.C.App. 521, 523, 642 S.E.2d 537, 539 (2007) (citation omitted).

“Summary judgment when sought ‘shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.’ “ Majestic Cinema Holdings, LLC v. High Point Cinema, LLC, 191 N.C.App. 163, 165, 662 S.E.2d 20, 22 (2008) (citation omitted).

“[T]he trial court is required to view the facts and permissible inferences in the light most favorable to the nonmoving party. All well pleaded factual allegations in the nonmoving party's pleadings are taken as true․” Rose v. Guilford County, 60 N.C.App. 170, 173, 298 S.E.2d 200, 202 (1982) (citation omitted). However,

the movant has the burden of establishing that there are no genuine issues of material fact. The movant can meet the burden by either: 1) Proving that an essential element of the opposing party's claim is nonexistent; or 2) Showing through discovery that the opposing party cannot produce evidence sufficient to support an essential element of his claim nor [evidence] sufficient to surmount an affirmative defense to his claim.

Noblot v. Timmons, 177 N.C.App. 258, 261, 628 S.E.2d 413, 414 (2006) (citation omitted).

I and II

Plaintiff argues that the trial court erred by misinterpreting the REDA statute when the anticipation of filing a worker's compensation claim is a protected activity and when there was a causal connection established between the protected activity and defendant's adverse employment action. Plaintiff also argues that because there were genuine issues of material fact presented under the REDA statute, his wrongful discharge claim must also survive.

“The North Carolina [REDA] prohibits discrimination or retaliation against an employee for filing a worker's compensation claim.” Wiley v. UPS, Inc., 164 N.C.App. 183, 186, 594 S.E.2d 809, 811 (2004) (citation omitted). It is well established that “[p]ursuing one's rights under the Worker's Compensation Act ․ is a legally protected activity.” Brackett v. SGL Carbon Corp., 158 N.C.App. 252, 259, 580 S.E.2d 757, 762 (2003). North Carolina General Statutes, section 95–241(a)(1)(a), 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 do any of the following: (1) File a claim or complaint, initiate any inquiry, investigation, inspection, proceeding or other action, or testify or provide information to any person with respect to any of the following: a. Chapter 97 of the General Statutes.

N.C. Gen.Stat. § 95–241(a)(1)(a) (2011) (emphasis added).

In order to state a claim under REDA, a plaintiff must show (1) that he exercised his rights as listed under N.C. Gen.Stat. § 95–241(a), (2) that he suffered an adverse employment action, and (3) that the alleged retaliatory action was taken because the employee exercised his rights under N.C. Gen.Stat. § 95–241(a) [ (Workers' Compensation Act) ].

Wiley, 164 N.C.App. at 186, 594 S.E.2d at 811; see also Salter v. E & J Healthcare, Inc., 155 N.C.App. 685, 693, 575 S.E.2d 46, 51 (2003) (stating that fulfilling these three elements establishes a prima facie case of retaliation).

“[A] plaintiff may pursue both a statutory claim under REDA and a common law wrongful discharge claim based on a violation of REDA.” White v. Cochran, ––– N.C.App. ––––, ––––, 716 S.E.2d 420, 426 (2011). “Both the Worker's Compensation Act and [REDA] are sources of policy establishing an employee's legally protected right of pursuing a workers' compensation claim.” Whitings v. Wolfson Casing Corp., 173 N.C.App. 218, 222, 618 S.E.2d 750, 753 (2005).

North Carolina follows the at-will employment doctrine, which dictates that “in the absence of a contractual agreement ․ establishing a definite term of employment, the relationship is presumed to be terminable at the will of either party without regard to the quality of performance of either party. One of the few exceptions to this doctrine is the public policy exception.

Brackett v. SGL Carbon Corp., 158 N.C.App. 252, 259, 580 S.E.2d 757, 761 (2003) (citation omitted). Although there are no specific requirements of what actions constitute a violation of public policy, “wrongful discharge claims have been recognized in North Carolina where the employee was discharged ․ for engaging in a legally protected activity[.]” Id. (citation

In the instant case, plaintiff abandons all claims except the fourth claim alleged in his complaint which stated that “defendant willfully retaliated against plaintiff for threatening to engage in protected activity by initiating a workers compensation claim” and that “defendant wrongfully terminated plaintiff in a manner that contravenes public policy of the State of North Carolina.” Plaintiff argues that he established the prima facie elements of his REDA and corresponding wrongful discharge claim.

Plaintiff contends he was clearly engaged in a protected activity when he notified Tony Cuomo, defendant's director of operations who oversaw plaintiff's training, that “he may intend to file a claim for workers' compensation.” Plaintiff relies on the North Carolina Supreme Court's holding in Abels v. Renfro Corp., 335 N.C. 209, 436 S.E.2d 822 (1993), for the contention that the anticipation of an employee's filing a workers' compensation claim is a protected activity. However, the Abels court dealt with the predecessor statute to REDA, North Carolina General Statutes, section 97–6.1, and held that if the statute “were limited only to retaliatory acts which occurred after the employee filed his claim, an employer could easily avoid the statute by firing the injured employee before he filed.” Abels, 335 N.C. at 215, 436 S.E.2d at 826 (citation omitted). Although we are dealing with a different statute in the case sub judice, the plain language of N.C.G.S. § 95–241(a)(1)(a) encompasses the situation where an employee who threatens to file a workers' compensation claim is retaliated against by his employer.

Defendant asserts that our holding in Whitings v. Wolfson Casing Corp., 173 N.C.App. 218, 618 S.E.2d 750 (2005) is dispositive and stands for the proposition that the action of filing a workers' compensation claim is the activity that triggers REDA protection. However, defendant's reliance is misplaced. In Whitings, our Court held that the plaintiff's request that her employer pay for a medical evaluation of a work-related injury did not constitute a protected activity under REDA. We also concluded that because the plaintiff failed “to allege the filing of a workers' compensation claim at any time either prior or subsequent to her discharge, [the] plaintiff ha[d] failed to plead that she engaged in a legally protected activity.” Id. at 223, 618 S.E.2d at 754.

Here, it is undisputed that plaintiff filed a workers' compensation claim five days after being terminated by defendant. Therefore, the issue before us is whether defendant's termination of plaintiff constituted a retaliatory action against plaintiff for threatening to file a workers' compensation claim, a protected activity under REDA. See N.C.G.S. § 95–241(a)(1)(a).

Plaintiff stated in his affidavit that he notified Cuomo of his work-related injury on 2 February 2010; told Cuomo that “before reporting the injury to workers' compensation I wanted to make sure it was not simply a pulled muscle that would go away[;]” informed Cuomo that he would “file the appropriate paperwork to initiate a claim once I confirm the nature of the injury[;]” on 3 February 2010, plaintiff received a first and final written warning from defendant; and on 7 February 2010, defendant terminated plaintiff stating “Lack of Demonstrated Leadership” as the reason.

Viewing all the evidence in the light most favorable to plaintiff and taking all of his factual allegations as true, plaintiff's evidence could support a finding that he engaged in a protected activity pursuant to N.C.G.S. § 95–241(a) by threatening to file a workers' compensation claim and that he suffered from the adverse employment action of termination. However, even if plaintiff was successful in showing that he engaged in a protected activity, plaintiff fails to establish a prima facie case because he cannot establish a causal connection between the alleged retaliatory action and his exercise of the protected activity.

“To satisfy the element of causal connection, a plaintiff may present evidence of close temporal proximity between the protected activity and the adverse employment action, or a pattern of conduct.” Smith v. Computer Task Group, Inc., 568 F.Supp.2d 603, 614 (M.D.N.C.2008) (citation omitted); see also Johnson v. Trustees of Durham Tech. Cmty. Coll., 139 N.C.App. 676, 682, 535 S.E.2d 357, 361 (2000). Here, plaintiff demonstrated that he was terminated from employment merely five days after informing defendant of his work-related injury and intention to file a worker's compensation claim. “However, [p]laintiff cannot rely on temporal proximity alone to establish pretext.” Shoaf v. Kimberly–Clark Corp., 294 F.Supp.2d 746, 758 (M.D.N.C.2003). Plaintiff must establish that retaliatory motive was a substantial factor in defendant's determination to terminate plaintiff. Johnson v. Friends of Weymouth, Inc., 120 N.C.App. 255, 259, 461 S.E.2d 801, 804 (1995).

Viewing the evidence in the light most favorable to plaintiff, we are unable to hold that plaintiff has provided substantial evidence that his termination had a retaliatory motive. Plaintiff's own affidavit merely states that on 3 February 2010, he was given a first and final written warning for a number of reasons, none of which included his threat to file a worker's compensation claim. Plaintiff's written warning from defendant explained that plaintiff had been late for work on several occasions, had been taking excessive amounts of breaks from work each day, failed to demonstrate that he had learned defendant's workplace standards, and that plaintiff's leadership was a concern. Plaintiff's affidavit also stated that when he was terminated on 7 February 2010, he “could not readily grasp” the “very vague reasons” given for his termination. However, in plaintiff's termination letter, defendant stated that plaintiff's lack of demonstrated leadership, reflected through his tardiness during training, lack of demonstrated initiative, dealings with challenging customers, phone skills, and inability to embrace defendant's concepts versus trying to incorporate aspects of full service hotels, was the reason supporting plaintiff's termination.

Therefore, because plaintiff cannot establish the prima facie elements of a REDA or wrongful discharge claim, we hold that the trial court did not err in granting defendant's motion for summary judgment.


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