Jarman v. Deason9/20/2005
Barbara A. Jarman ("plaintiff") appeals from a trial court judgment dismissing her claim for wrongful discharge on the basis of age discrimination against Jim Deason, d/b/a Deason Landscape & Irrigation ("defendant"). We affirm.
Plaintiff's 9 June 2003 complaint, as later amended, alleged the following facts. On or about 24 March 2003, defendant "advised [plaintiff] that even though she was doing a good job, she was 'getting some age on her' and [discharged] her." At the time of her discharge, plaintiff was fifty-two years old and had been employed by defendant for approximately eight years and sevenmonths as an employee-at-will working in the area of lawn maintenance, landscaping, and irrigation. Plaintiff worked with defendant longer than any other employee, was considered a good employee, received wage increases during her employment from $5.00 per hour to $9.50 per hour, was physically capable of continuing her employment, and intended to continue working with defendant past her retirement age of sixty-five. Defendant did not contest plaintiff's application for unemployment benefits, which stated she was discharged due to her age. As the basis for her claim plaintiff alleged, " lthough Defendant does not employ 15 full-time employees, it is, on information and belief, against the public policy of the State of North Carolina to allow discrimination on the basis of age." On 24 May 2004, the trial court granted defendant's motion to dismiss plaintiff's complaint for failure to state a claim upon which relief may be granted under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2003). Plaintiff appeals.
"On a Rule 12(b)(6) motion to dismiss, the question is whether, as a matter of law, the allegations of the complaint, treated as true, state a claim upon which relief can be granted." Wood v. Guilford Cty., 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002). On appeal, plaintiff asserts the trial court erred by dismissing her complaint under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) on the grounds that the legislature, via N.C. Gen. Stat. § 143-422.2 (2003), has declared it against the public policy of this State to discriminate based on age. Defendant rejoins thatdismissal was proper under N.C. Gen. Stat. § 143-422.2, which provides as follows:
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.
It is recognized that the practice of denying employment opportunity and discriminating in the terms of employment foments domestic strife and unrest, deprives the State of the fullest utilization of its capacities for advancement and development, and substantially and adversely affects the interests of employees, employers, and the public in general.
For reasons that follow, we are of the opinion that defendant's interpretation regarding the legislature's expression of public policy in N.C. Gen. Stat. § 143-422.2 is correct and affirm. "The general rule in North Carolina is that absent 'constitutional restraint, questions as to public policy are for legislative determination.'" In re Phillip Morris, 335 N.C. 227, 230, 436 S.E.2d 828, 830 (1993) (quoting State v. WhittleCommunications, 328 N.C. 456, 470, 402 S.E.2d 556, 564 (1991). In the instant case, the legislature has clearly and distinctly set forth this State's public policy with respect to employment discrimination. Our legislature has specifically prohibited employment discrimination on certain enumerated bases by employers of fifteen or more people and dee
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