Garland v. Hatley8/16/2005
rnett Cty Bd. of Educ., 158 N.C. App. 208, 212, 580 S.E.2d 732, 735 (2003) (internal citations and quotations omitted), aff'd per curiam, 358 N.C. 131, 591 S.E.2d 521 (2004).
IV. Employee Status
Plaintiff asserts the trial court erred in granting defendants' motion for summary judgment and argues a genuine issue of material fact exists regarding defendants' status as a covered employer under the FMLA. Plaintiff admits in her affidavit that during her previous employment for Burke County Clerk of Superior Court: "In 1999, my supervisor told me I needed to apply for FMLA before I had back surgery and she helped me fill out a form." Plaintiff also admits she failed to request FMLA leave for absences from the Clerk's Office while sick and that she was not denied FMLA leave subsequent to her termination. Upon review of the record, it is unnecessary for us to reach this issue. The verified pleadings and plaintiff's affidavit show on their face the grant of summary judgment was proper.
A. At Will Employment
"In North Carolina, 'in the absence of an employment contract for a definite period, both employer and employee are generally free to terminate their association at any time and without any reason.'" Venable v. Vernon, 162 N.C. App. 702, 705, 592 S.E.2d 256, 258 (2004) (quoting Salt v. Applied Analytical, Inc., 104 N.C. App. 652, 655, 412 S.E.2d 97, 99 (1991), cert. denied, 331 N.C. 119, 415 S.E.2d 200 (1992)).
All employees are entitled to FMLA as a matter of public policy and statute. 29 U.S.C.A. § 2615 (1999). Pursuant to N.C. Gen. Stat. § 126-5(c1) (2003), plaintiff, as an " fficer and employee of the Judicial Department," is exempt from protections of the State Personnel System. Plaintiff serves at the" pleasure" of the Clerk of Superior Court. N.C. Gen. Stat. § 7A-102 (2003). Plaintiff was exempt from coverage as a State employee under the State Personnel Act and was an "at will" employee of the Clerk of Superior Court. N.C. Gen. Stat. § 126-5(c1); see also Hines v. Yates, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___ (5 July 2005) (COA04-775).
In Coman v. Thomas Manufacturing Co., our Supreme Court recognized that an at will employee may not be terminated for a reason that offends public policy. 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989) (citing Sides v. Duke University, 74 N.C. App. 331, 342, 328 S.E.2d 818, 826, disc. rev. denied, 314 N.C. 331, 333 S.E.2d 490 (1985), overruled on other grounds by Kurtzman v. Applied Analytical Indus., 347 N.C. 329, 493 S.E.2d 420 (1997)), disc. rev. denied, 331 N.C. 284, 417 S.E.2d 249 (1992). In Coman, the plaintiff alleged he was terminated from his job as a long-distance truck driver after refusing to violate federal transportation regulations and brought suit for wrongful discharge. 325 N.C. at 173-74, 381 S.E.2d at 445-46. Our Supreme Court explicitly recognized a public policy exception to the well-entrenched employment at will doctrine and quoted with approval the following language from a prior decision of this Court:
' 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, 74 N.C. App. at 342, 328 S.E.2d at 826).The Court stated, " 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 go
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