MAX O. COGBURN, JR.
THIS MATTER is before the court upon defendant Franklin Barnett's Motion for Judgment on the Pleadings. Having considered that motion carefully, reviewed the pleadings, and conducted a hearing, the undersigned enters the following findings, conclusions, and recommendation.
FINDINGS AND CONCLUSIONS
I. Standard Applicable to Motions for Judgment on the Pleadings
A motion for judgment on the pleadings is appropriate where ultimate facts are not in dispute. A.S. Abell Co. v. Baltimore Typographical Union Co., 338 F.2d 190, 193 (4th Cir. 1964). Under Rule 12(c), Federal Rules of Civil Procedure, judgment on the pleadings should be entered where it is apparent that there are no issues of material fact and that only questions of law exist. Moreno v. University of Maryland, 420 F. Supp. 541 (D.Md. 1970), aff'd, 556 F.2d 573 (4th Cir. 1977). When there are no factual issues, judgment on the pleading should be granted where the moving party clearly is entitled to the judgment it seeks as a matter of law. Jadoff v. Gleason, 140 F.R.D. 330, 331 (M.D.N.C. 1991).
II. Background
As to Defendant Barnett, the factual background of this case follows a fact pattern common to recent Title VII cases. Plaintiffs contend that a supervisory employee of the corporate defendant not only turned a blind eye towards sexual harassment of female employees by male employees in the industrial workplace, but encouraged such conduct by berating employees who complained about it. In addition, it is the contention of at least one plaintiff that Defendant Barnett engaged in outrageous conduct, which included the nonconsensual touching of the private parts of females whom he supervised. Defendant Barnett has moved to dismiss the Title VII claim against him under recent precedent and has also moved to dismiss the supplemental state-law claims.
III. Discussion
A. Title VII Claim Against a Supervisory Employee
The court agrees with Defendant Barnett that the reasoning of the Court of Appeals for the Fourth Circuit in Lissau v. Southern Food Service, Inc., 159 F.3d 177 (4th Cir. October 28, 1998), compels this court to recommend dismissal of the Title VII claim brought against him. Clearly, a supervisory employee is not an "employer" under Lissau.
B. Supplemental Claims
Defendant Barnett has also requested dismissal of the supplemental state-law claims, arguing that claims have not been stated under Rule 12 (b)(6) and that this court should decline to exercise jurisdiction over those claims in accordance with 28, United States Code, Section 1367(c).
1. Wrongful Discharge and Interference with Employment in Violation of the Public Policy of North Carolina
Defendant Barnett argues that plaintiffs' state-law claims for wrongful discharge are based upon the public-policy exception to the at-will employment doctrine under Chapter 143-422.2; a contract of employment is required to state a claim under the public-policy exception; and the statute limits liability exclusively to employers. In support of that proposition, Defendant Barnett cites Sides v. Duke Hospital, 74 N.C. App. 331 (1985), which held that the individual defendant could not be held liable for wrongful discharge where the employment contract of the discharged plaintiff was with Duke University, not the individual defendant. Subsequent decisions of the North Carolina courts, however, have allowed actions to proceed against supervisory employees. See Amos v. Oakdale Knitting Co., 331 N.C. 348 (1992); Williams v. Hillhaven Corp., 91 N.C. App. 35 (1988); and Lenzer v. Flaherty, 106 N.C. App. 496 (1992).
A recent, unpublished decision of Honorable Lacy H. Thornburg, United States District Judge, in EEOC v. Tar Heel Capital, Inc., 1:98cv84 (W.D.N.C. December 3, 1998), may impact this case. In Tar Heel Capital, the undersigned recommended that state-law claims similar to those in this case be dismissed as not recognized by state law. In relevant part, Judge Thornburg determined, as follows:
The North Carolina Supreme Court rules that the "ultimate purpose of . . . G.S. 143-422.2 and Title VII (
42 U.S.C. § 2000e,
et seq.) is the same," and thus the statute is co-extensive with the federal statute, evaluated under the same standards of evidence and principles of law. This interpretation of the overlap of the state and federal statutes is the rule of the Fourth Circuit as well. * * * A plaintiff pleading the acts of an employer demanding sexual favors and engaging in unwelcome fondling states a claim under Title VII; acts such as intimidation, ridicule, and insult can also give rise to a valid claim of sexual harassment under Title VII. * * * Thus, as a cause of action sexual harassment exists under Title VII, pursuant to the reasoning set forth by the North Carolina Supreme Court in Gibson, a cause of action for sexual harassment also exists under N.C. Gen. Stat. § 143-422.2.
Id., at 5 (case citations omitted; copy of opinion attached to this recommendation). Even though Chapter 143-422.2 and Title VII are co-extensive, the undersigned finds that North Carolina would not likely follow the federal lead, inasmuch as North Carolina law has developed to allow a cause of action for wrongful discharge against supervisory employees. The undersigned, therefore, will recommend that Defendant Barnett's Motion for Judgment on the Pleadings as to plaintiffs' claim of wrongful discharge be denied.
2. Intentional Infliction of Emotional Distress
North Carolina recognizes a cause of action for intentional infliction of emotional distress. Hogan v. Forsyth Country Club, 79 N.C. App. 483, 488, disc. rev. denied, 317 N.C. 334 (1986). According to the Hogan court, the elements of the tort are "(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress." Defendant Barnett concedes that Plaintiff Ledford states a claim, but that the other plaintiffs do not. As to the remainder of the plaintiffs, they argue that they have alleged the elements of a prima facie case; under notice pleading, they should be allowed to proceed; and they have alleged conduct that could support their claim, including "coarse and offensive sexual jokes, cartoons, language, unwanted physical contact and inappropriate touching, physical abuse, and other unwelcome conduct of a sexual nature by their male co-workers and supervisors." Under North Carolina law, detailed fact pleading is not required for a claim of intentional infliction of emotional distress to pass Rule 12 (b)(6) scrutiny. Dixon v. Stuart, 85 N.C. App. 338 (1987). At the summary-judgment stage, each plaintiff will be required to show as to herself a forecast of an "emotional or mental disorder, such as, for example, neurosis, psychosis, chronic depression, phobia, or any other type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so."Johnson v. Ruark Obstetrics Gynecology Assoc., 327 N.C. 283, 304, reh'g denied, 327 N.C. 644 (1990). The undersigned will recommend that Defendant Barnett's Motion for Judgment on the Pleadings as to plaintiffs' claim for intentional infliction of emotional distress be denied.
3. Negligent Infliction of Emotional Distress
Plaintiffs have claimed, in the alternative to the intentional tort, that Defendant Barnett committed the tort of negligent infliction of emotional distress. The North Carolina Supreme Court held in Johnson v. Ruark Obstetrics Gynecology Assoc., supra as follows:
Claims for negligent infliction of emotional distress have been recognized by this Court for at least one hundred years. * * * Our cases have established that to state a claim for negligent infliction of emotional distress, a plaintiff must allege that (1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress (often referred to as "mental anguish"), and (3) the conduct did in fact cause the plaintiff severe emotional distress.
Id.,
327 N.C. at 290, 304. As discussed in the previous section, plaintiffs have quite properly alleged each element of a cause of action for negligent infliction of emotional distress. It appearing that issues of fact remain on this claim, the Motion for Judgment on the Pleadings should be denied for the reasons discussed above.
4. Negligent Hiring and Retention
This is, perhaps, plaintiffs' weakest claim from the outset. The theory is that Defendant Barnett was plaintiffs' supervisor and employer; he negligently hired men he knew or should have known would abuse women in the workplace; and after he knew or should have known of the unlawful conduct, he took no steps to terminate the employment of the perpetrators.
To state a claim for negligent hiring and retention, a plaintiff must allege that (1) an employee committed a tortious act against plaintiff; (2) plaintiff was injured by the tortious conduct; and (3) the employer was negligent in hiring and retaining the employee when the employer knew or reasonably should have known of the risk of harm to the plaintiff.Hogan v. Forsyth Country Club, supra. The issue raised is whether a supervisor is an employer under North Carolina law. That a supervisor could be considered an employer is a stretch of logic. As discussed above, however, North Carolina courts have bucked the federal trend and implicitly recognized such liability through affirming judgments against supervisors, although those were decisions where the specific issue was not presented. See Medlin v. Bass, 327 N.C. 587 (1990). Because the undersigned cannot say as a matter of North Carolina law that plaintiffs' claim is precluded, a recommendation must be entered that Defendant Barnett's Motion for Judgment on the Pleadings be denied.
C. Exercise of Supplemental Jurisdiction Over State-Law Claims
Where the original jurisdiction of the federal court is invoked, as it was here,
the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.
28 U.S.C. § 1367 (a). A federal court's original jurisdiction extends to nonfederal claims when the federal question is substantial and the claims asserted could be brought in one proceeding. In
United Mine Workers v. Gibbs,
383 U.S. 715, 727 (1966), the Supreme Court found, as follows:
[If] considered without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in the federal courts to hear the whole.
Section 1367(c) provides a number of reasons for a district court to decline to exercise its supplemental jurisdiction. The only relevant provision is subsection (3), which allows for dismissal of the supplemental claims where "the district court has dismissed all claims over which it has original jurisdiction." While it is likely that the district court will dismiss the Title VII claim against Defendant Barnett, other federal claims remain as to the other defendants and, as to those claims, Defendant Barnett appears to be inextricably intertwined. Although Defendant Barnett has argued that he should not be required to defend the state-law claims in a forum distant from his home in Murphy, the court finds that dismissal in this court would not reduce any costs for him, inasmuch as he would likely be spending a great deal of time involved in this case, with counsel, at depositions, hearings, and trial, as well as defending against the state-law claims in state court. Perhaps most importantly, the state-law claims asserted against Defendant Barnett share a common nucleus of operative facts with those asserted against the corporate defendants, and litigation in two forums could result in inconsistent judgments. For the reasons stated above, the undersigned will recommend that the district court retain jurisdiction over the remaining supplemental claims asserted against Defendant Barnett.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that defendant Franklin Barnett's Motion for Judgment on the Pleadings be ALLOWED as to plaintiffs' Title VII claim as it pertains to Mr. Barnett, but otherwise DENIED as to plaintiffs' supplemental state-law claims.
The parties are hereby advised that, pursuant to 28, United States Code, Section 636(b)(1)(C), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within ten (10) days of service of same. Failure to file objections to this Memorandum and Recommendation with the district court will preclude the parties from raising such objections on appeal. Thomas v. Arn, 474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111 (1986); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied 467 U.S. 1208 (1984).
This Memorandum and Recommendation is entered in response to defendant Franklin Barnett's Motion for Judgment on the Pleadings (#).