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Kelly v. Carteret County Board of Education3/5/2002
to drive a school bus because of her disorder. Perhaps plaintiff was confident that her employer would demand that she drive a school bus despite her seizure disorder, and she wanted to make her position on the matter immediately clear. Under such perfectly plausible circumstances, there would have been no reason for the employer to then demand that she drive the school bus, as plaintiff had already made it clear that she would not do so.
I believe that where an employee is forced to choose between being terminated or engaging in conduct which would violate public policy, and where the employer, in fact, discharges the employee for refusing to engage in the conduct in question, that employer has committed the tort of wrongful discharge in violation of public policy. I further believe that plaintiff's complaint alleges all of the substantive elements of a claim for wrongful discharge in violation of public policy, and gives sufficient notice of the events which produced the claim to enable defendant to present any defense and to prepare for trial. Because we must liberally construe plaintiff's complaint with a view to substantial justice between the parties, I cannot concur that plaintiff has failed to state a claim for wrongful discharge in violation of public policy.
Moreover, I would reverse the trial court's order because I do not believe that the claim in question is subject to the 180-day statute of limitations in the North Carolina Persons With Disabilities Protection Act (the "NCPDPA"). The claim in question is a common law wrongful discharge claim and is subject to a three-year statute of limitations pursuant to N.C. Gen. Stat. § 1-52(5) (1999). See Renegar v. R.J. Reynolds Tobacco Co., 145 N.C. App. 78, 79, 549 S.E.2d 227, 229, disc. review denied, 354 N.C. 220, 554 S.E.2d 344 (2001). Plaintiff's claim was filed within three years of the date of her termination. It would be both contrary to established law, and ultimately ironic, to hold that plaintiff's wrongful discharge claim is barred by the statute of limitations in the NCPDPA because, unfortunately for her, her claim happens to involve the fact that she suffers from a disorder that would qualify as a "disabling condition" under the NCPDPA. See Simmons v. Chemol Corp., 137 N.C. App. 319, 323, 528 S.E.2d 368, 371 (2000) (holding provisions of NCHPPA -- now retitled NCPDPA -- not applicable to wrongful discharge in violation of public policy claim, even where claim is based upon allegation that plaintiff was terminated because of disability); N.C. Gen. Stat. § 168A-2 (1999) (stating that the NCPDPA seeks to protect disabled individuals from discrimination based upon their disability).
I would reverse the trial court's order granting defendant's motion to dismiss because (1) I believe the allegations in the complaint are sufficient to state a claim for wrongful discharge in violation of public policy, and because (2) I believe that the trial court erred in ruling that plaintiff's claim is barred by the statute of limitations in the NCPDPA.
For the reasons set forth herein, I dissent.
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