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Garland v. Hatley8/16/2005
od." Id. at 175 n.2, 381 S.E.2d at 447 n.2 (citing Petermann v. International Brotherhood of Teamsters, 174 Cal. App.2d 184, 344 P.2d 25 (Cal. App. 2. Dist, 1959)).
In Caudill v. Dellinger, this Court held a district attorney's termination of the employment of his administrative assistant pursuant to N.C. Gen. Stat. § 7A-68 after she cooperated with the State Bureau of Investigation was in direct conflict with public policy. 129 N.C. App. 649, 656-57, 501 S.E.2d 99, 104, disc. rev. denied, 349 N.C. 353, 517 S.E.2d 888 (1998), aff'd in part per curiam, disc. rev. improvidently allowed in part, 350 N.C. 84, 511 S.E.2d 304 (1999). We held, " t is the public policy of this state that citizens cooperate with law enforcement officials in the investigation of crimes." Id. at 657, 501 S.E.2d at 104.
In Hines, the plaintiff was a district attorney's investigatorial assistant and acted as a liaison between the district attorney's office and the sheriff's department. ___ N.C. App. at ___, ___ S.E.2d at ___. While employed, he filed as a candidate for sheriff and was terminated from employment after the election. Id. The plaintiff argued he was terminated for expressing political speech. Id. at ____, ____ S.E.2d at ___. We held that as an at will and exempt employee, the plaintiff could be terminated for any reason or no reason, so long as the reason for his termination was not against public policy. Id. at ___, ___ S.E.2d at ___. The plaintiff's political speech was not limited by his employer. The plaintiff was free to exercise his political speech and criticize his employer, but failed to establish his termination was barred by public policy. Id. at ___, ___ S.E.2d at ___.
Unlike the plaintiff in Caudill, but like the plaintiff in Hines, plaintiff here makes no showing that she was discharged for any reason that contravenes public policy. Caudill, 129 N.C. App. at 656-57, 501 S.E.2d at 104; Hines, ___ N.C. App. at ___, ___ S.E.2d at ___; see also Coman, 325 N.C. at 175, 381 S.E.2d at 447.
As discussed, plaintiff is an at will employee. Plaintiff fails to prove she was terminated in violation of the FMLA. Plaintiff was discharged for being excessively absent from work, not because of unrequested FMLA leave. Interim Clerk Peeler was lawfully entitled to discharge an at will employee for "no reason or for an arbitrary or irrational reason" which does not contravene public policy. Hines, ___ N.C. App. at ___, ___ S.E.2d at ___; see Caudill, 129 N.C. App. at 656-57, 501 S.E.2d at 103-04. No genuine issue of any material fact exists regarding plaintiff's at will and exempt employment status. N.C. Gen. Stat. § 7A-102; N.C. Gen. Stat. § 126-5(c1).
The trial court did not err in granting defendants' motion for summary judgment. In light of our holding, it is unnecessary to discuss plaintiff's remaining assignment of error. Caudill, 129 N.C. App. at 660, 501 S.E.2d at 106 (plaintiff was not entitled to reinstatement of her former position because the newly appointed district attorney was authorized to have an assistant serve at "his pleasure.").
V. Conclusion
Plaintiff failed to show a genuine issue of material fact exists or to forecast evidence of a public policy exception that shields her from termination of her at will employment. Plaintiff had previously applied for leave under FMLA, but did not request such leave here. Defendants were entitled to judgment as a matter of law. The trial court's order is affirmed.
Affirmed.
Chief Judge MARTIN and Judge LEVINSON concur.
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