Pierce v. Atlantic Group, Inc.
219 N.C. App. 19
N.C. Ct. App.2012Background
- Plaintiff Howard H. Pierce, Sr. was employed by The Atlantic Group, Inc. and Duke Energy; he held supervisory roles and earned up to $44/hour.
- Regulatory changes in 2009 required crane operators and riggers to be certified by 1 October 2009, which Plaintiff proposed to implement without operational disruption.
- Plaintiff was temporarily reassigned during outages with reduced pay and later demoted from supervisor to advanced rigger at reduced pay.
- Plaintiff repeatedly raised concerns about certification and safety, including contacting Duke Energy’s ethics hotline about retaliatory treatment.
- Plaintiff was terminated on 24 September 2009 for alleged falsification of a timecard, and Duke Energy barred him from unescorted access to facilities.
- Plaintiff filed a complaint alleging REDA violations, wrongful discharge, negligent/intentional infliction of emotional distress, and defamation; trial court granted 12(b)(6) dismissals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| REDA claim viability by initiation of inquiry | Pierce initiated inquiries under REDA §95-241(a) by proposing certification and reporting safety concerns. | Merely discussing safety with supervisors or contacting an ethics hotline does not constitute an REDA-protected initiation. | REDA claim dismissed; no initiation of inquiry shown |
| Wrongful discharge for public policy | Termination violated public policy for OSHA-related safety concerns and adherence to public policy statutes. | No identified North Carolina public policy violation; defendant acted within at-will framework. | Wrongful discharge claim dismissed |
| Negligent/intentional infliction of emotional distress | Conduct caused severe emotional distress to Plaintiff and family. | Allegations do not show severe distress or extreme conduct. | Distress claims dismissed |
| Defamation (libel and slander) | Two written publications damaged reputation and were made with malice. | Publications do not meet the criteria for libel per se or per quod; insufficient specificity of damages. | Defamation claim dismissed |
Key Cases Cited
- Wiley v. UPS, Inc., 164 N.C. App. 183, 594 S.E.2d 809 (2004) (establishes elements of REDA and causal nexus standard)
- Delon v. McLaurin Parking Co., 367 F. Supp. 2d 893 (E.D.N.C. 2005) (communications about supervisor not protected activity under REDA)
- Gillis v. Montgomery County Sheriff's Dep’t, 191 N.C. App. 377, 663 S.E.2d 447 (2008) (public policy wrongful discharge pleading requires specificity)
- McDonnell v. Tradewind Airlines, Inc., 194 N.C. App. 674, 670 S.E.2d 302 (2009) (public policy wrongful discharge requires identified policy)
- Garner v. Rentenbach Constructors, Inc., 350 N.C. 567, 515 S.E.2d 438 (1999) (public policy exception limits on at-will termination)
- Johnson v. Ruark Obstetrics & Gynecology Assoc., P.A., 327 N.C. 283, 395 S.E.2d 85 (1990) (definition of severe emotional distress for tort claims)
- Tyson v. L’Eggs Products, Inc., 84 N.C. App. 1, 351 S.E.2d 834 (1987) (defamation libel classifications and innuendo framework)
- Stutts v. Duke Power Co., 47 N.C. App. 76, 266 S.E.2d 861 (1980) (libel classifications and required specificity)
- Andrews v. Elliot, 109 N.C. App. 271, 426 S.E.2d 430 (1993) (libel per se and libel per quod standards)