Sides v. Duke University
Sides v. Duke University
Opinion of the Court
Does the complaint which alleges that plaintiff was discharged from her job at Duke University Medical Center in retaliation for her refusal to withhold testimony or testify untruthfully in a lawsuit against some of the defendants state a claim for relief against any of the defendants? That is the only question presented by this appeal. Plaintiff contends that she has pleaded legally enforceable claims for relief in both tort and con
Wrongful Discharge
At the threshold we are confronted by the decision of this Court in Dockery v. Lamport Table Co., 36 N.C. App. 293, 244 S.E. 2d 272, disc. rev. denied, 295 N.C. 465, 246 S.E. 2d 215 (1978). In that case, speaking through Judge Mitchell, now Justice Mitchell, this Court held that an employee at will in this State has no enforceable claim against his employer for “retaliatory discharge,” an action that many courts in this country have recognized and enforced under various circumstances. The plaintiff in that case, so he alleged, was discharged in retaliation for filing a workers’ compensation claim against his employer. The general common law rule, of course, in this and other jurisdictions, as the plaintiff recognized, is that when a contract of employment does not fix a definite term the employment is terminable without cause at the will of either party. Bishop v. Wood, 426 U.S. 341, 48 L.Ed. 2d 684, 96 S.Ct. 2074 (1976); Smith v. Ford Motor Co., 289 N.C. 71, 221 S.E. 2d 282 (1976). The plaintiff in Dockery argued that notwithstanding the general rule the Court should and could recognize plaintiff’s wrongful discharge action either on the ground that it was authorized by statute or on the ground that public policy required it. His main reliance was on the case of Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E. 2d 425 (1973), where, on facts similar to Dockery, the Indiana Supreme Court carved out a “retaliatory discharge” exception to the common law doctrine that contracts of an indefinite duration are terminable at will and without legal recourse. Plaintiff pointed out that the Indiana Workers’ Compensation Law provided, as did the North Carolina Workers’ Compensation Act through G.S. 97-6, that no employer could avoid its obligation under the law by any agreement, rule, regulation or other device; and that the Frampton court viewed the discharge by the employer in retaliation for the employee filing a workers’ compensation claim as a “device” for avoiding its obligations under the law, since its inevitable effect would be to discourage other injured workers from filing claims, and therefore wrongful and actionable.
But whether or not the Dockery refusal to recognize an action for retaliatory discharge has been undermined by those enactments of the General Assembly, the public policy considerations that affect this case are much more compelling than those that affected that case. Though the public has a strong interest in allowing workers to pursue their statutory remedies for workers’ compensation without being in fear of losing even greater benefits — their jobs and means of livelihood — if they do, the public interest in preventing the obstruction of justice is greater still. Perjury and the subornation of perjury were both felonies at com
It is generally agreed that the terminable-at-will doctrine was the prevailing common law in the latter part of the nineteenth century:
With us the rule is inflexible, that a general or indefinite hiring is prima facie a hiring at will and if the servant seeks to make it out a yearly hiring, the burden is upon him to establish it by proof. . . . [I]t is an indefinite hiring and is determinable at the will of either party. . . .
H. G. Wood, Master and Servant § 134 (1877) quoted in Feinman, The Development of the Employment at Will Rule, 20 Am. J. of Legal History, 118, 126 (1976). But this represented a departure from the earlier English common law rule that contracts of indefinite duration were presumed to be for a year, 2 W. Blackstone, Commentaries, 425; Feinman, supra at 119-22; and at least one court has questioned whether Wood’s statement was supported by the authority it cited and was accurate when written. Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 335 N.W. 2d 834 (1983).
The common law of North Carolina is the common law of England as it existed when independence was declared in 1776. Steelman v. City of New Bern, 279 N.C. 589, 184 S.E. 2d 239
In recent years, the rule has come under increasing criticism from scholars, e.g. Blades, Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 Colum. L. Rev. 1404 (1967); Summers, Individual Protection Against Unjust Dismissal: Time for a Statute, 62 Va. L. Rev. 481 (1976); Peck, Unjust Discharges from Employment: A Necessary Change in the Law, 40 Ohio St. L. J. 1 (1979); Note, Protecting Employees at Will Against Wrongful Discharge: The Public Exception, 96 Harv. L. Rev. 1931 (1983); Note, Continued Resistance to the Inclusion of Personnel Policies in Contracts of Employment: Griffin v. Housing Authority of Durham, 62 N.C. L. Rev. 1326 (1984); Note, Workmen’s Compensation — No Private Right of Action for Retaliatory Discharge in North Carolina, 15 Wake Forest L. Rev. 139 (1979), as being unfair and no longer suited to the evolving economic relations between employer and employee. Similarly, courts have begun to respond to a perceived need to protect non-contract employees from abusive practices by the employer. See Comment, Protecting At Will Employees Against Wrongful Discharge: The Duty to Terminate Only in Good Faith, 93 Harv. L. Rev. 1816, 1818-24 (1980).
The California case of Petermann v. International Brotherhood, etc., 174 Cal. App. 2d 184, 344 P. 2d 25 (1959), was the seminal case in recognizing a limitation on the common law doctrine. There, in a situation involving policy considerations similar to the present one, an employee who had been discharged from his job for refusing to give false answers to a legislative committee attempted to sue his employer. The trial court, relying on the
The presence of false testimony in any proceeding tends to interfere with the proper administration of public affairs and the administration of justice. It would be obnoxious to the interests of the state and contrary to public policy and sound morality to allow an employer to discharge any employee, whether the employment be for a designated or unspecified duration, on the ground that the employee declined to commit perjury, an act specifically enjoined by statute. The threat of criminal prosecution would, in many cases, be a sufficient deterrent upon both the employer and employee, the former from soliciting and the latter from committing perjury. However, in order to more fully effectuate the state’s declared policy against perjury, the civil law, too, must deny the employer his generally unlimited right to discharge an employee whose employment is for an unspecified duration, when the reason for the dismissal is the employee’s refusal to commit perjury. To hold otherwise would be without reason and contrary to the spirit of the law. The public policy of this state as reflected in the penal code sections referred to above would be seriously impaired if it were to be held that one could be discharged by reason of his refusal to commit perjury. To hold that one’s continued employment could be made contingent upon his commission of a felonious act at the instance of his employer would be to encourage criminal conduct upon the part of both the employee and employer and would serve to contaminate the honest administration of public affairs. This is patently contrary to the public welfare. The law must encourage and not discourage truthful testimony. The public policy of this state requires that every impediment, however remote to the above objective, must be struck down when encountered. (Emphasis added.)
174 Cal. App. 2d at 188-89, 344 P. 2d at 27. Subsequent cases from other states have recognized a common law cause of action in tort
Cases from other jurisdictions have recognized a cause of action when the discharge was in violation of a statute. E.g. Frampton v. Central Indiana Gas Co., supra; Murphy v. City of Topeka-Shawnee County, 6 Kan. App. 2d 488, 630 P. 2d 186 (1981); Lally v. Copygraphics, 85 N.J. 668, 428 A. 2d 1317 (1981); Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 384 N.E. 2d 353 (1978); Sventco v. Kroger Co., 69 Mich. App. 644, 245 N.W. 2d 151 (1976); Texas Steel Co. v. Douglas, 533 S.W. 2d 111 (Tex. Civ. App. 1976). All of the above cases involve employees discharged for asserting their rights under workers’ compensation laws in the particular states. It should be noted, however, that not all of the compensation laws involved in these cases specifically provide a remedy, as North Carolina now does.
Some courts have recognized the need for a common law cause of action for wrongful discharge, but have not met with appropriate facts for applying it. E.g. Jackson v. Minidoka Irrigation Dist., 98 Idaho 330, 563 P. 2d 54 (1977); Scroghan v. Kraftco Corp., 551 S.W. 2d 811 (Ky. 1977); Adler v. American Standard, 291 Md. 31, 432 A. 2d 464 (1981); Keneally v. Orgain, 606 P. 2d 127 (Mont. 1980); Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 417 A. 2d
But none of the foregoing discussions of the at will doctrine, or any others that we have seen, focuses on what we believe is the fundamental fact upon which the at will doctrine rests, a fact that is crucial to this case, in our judgment. We refer to the obvious and indisputable fact that in a civilized state where reciprocal legal rights and duties abound the words “at will” can never mean “without limit or qualification,” as so much of the discussion and the briefs of the defendants imply; for in such a state the rights of each person are necessarily and inherently limited by the rights of others and the interests of the public. An at will prerogative without limits could be suffered only in an anarchy, and there not for long — it certainly cannot be suffered in a society such as ours without weakening the bond of counterbalancing rights and obligations that holds such societies together. Thus, while 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. We hold, therefore, that no employer in this State, notwithstanding that an employment is at will, has the right to discharge an employee and deprive him of his livelihood without civil liability because he refuses to testify untruthfully or incompletely in a court case, as plaintiff alleges happened here. One of the merited glories of this country is the multitude of rights that its people have, rights that are enforced as a matter of course by our courts, and nothing could be more inimical to their enjoyment than the unbridled law defying actions of some and the false or incomplete testimony of others. If we are to have law, those who so act against the public interest must be held accountable for the harm
We hold, therefore, that plaintiffs complaint, the allegations of which need not be repeated, states an enforceable claim against the defendant Duke for wrongfully discharging her from her employment in retaliation for her refusal to testify falsely or incompletely in the case referred to, and that part of the order appealed from is reversed. But this claim was properly dismissed as to Ms. Farmer and Dr. Harmel, since it is alleged that her employment contract was with Duke University, rather than either of them, and that part of the order is affirmed.
Even if the step we now take should be regarded as a departure from common law and clear precedent, and we do not believe that it is, it would not be the first such step that has been properly taken by the Courts of this State. In Rabon v. Rowan Memorial Hospital, Inc., 269 N.C. 1, 152 S.E. 2d 485 (1967), our Supreme Court abolished the common law immunity that had unjustly and irrationally protected charitable institutions from liability for negligently injuring patients in hospitals operated by them. This was done, so the Court said, because the rule could not be supported by either law or logic and public policy and the interests of justice required its abolition. Because the language there used is appropriate to the situation now before us, we quote the following from Justice Sharp’s opinion:
This Court has never overruled its decisions lightly. No court has been more faithful to stare decisis. In matters involving title to property, its policy has been to leave changes in the law to the legislature. And always it has recognized “the gravity of the proposition that we shall reverse a decision of this court” as Connor, J., said in Mial v. Ellington, 134 N.C. 131, 139, 46 S.E. 961, 963-64, reversing Hoke v. Henderson, 15 N.C. 1. Nevertheless, when the duty has seemed clear, it has done so, recognizing that the membership of succeeding courts may well regard its membership as no less fallible. ... As Stacy, J. (later C.J.), said in Spitzer v. Comrs., 188 N.C. 30, 32, 123 S.E. 636, 638: “There is no virtue in sinning against light or in persisting in palpable error, for nothing is settled until it is settled right.” Almost a quarter*344 of a century later, Ervin, J., said: “The doctrine of stare decisis will not be applied in any event to preserve and perpetuate error and grievous wrong.” State v. Ballance, 229 N.C. 764, 767, 51 S.E. 2d 731.
269 N.C. at 20-21, 152 S.E. 2d at 498. And in Stanback v. Stan-back, 297 N.C. 181, 254 S.E. 2d 611 (1979), for the good and sufficient reasons stated therein, our Supreme Court recognized that under certain circumstances the law authorizes an action for intentionally inflicting emotional distress.
While it is the function of courts to interpret rather than make law, it must nevertheless be borne in mind that the common law is not a collection of archaic, abstract legal principles as the briefs of the defendants imply — it is a living system of law that, like the skin of a child, grows and develops as the customs, practices and necessities of the people it was adopted for change. The common law had its genesis in the customs and practices of the people, and its genius, as many of the country’s greatest jurists and legal scholars have pointed out, is not only its age and continuity, but its vitality and adaptability.
If one were to attempt to write a history of the law in the United States, it would be largely an account of the means by which the common-law system has been able to make progress through a period of exceptionally rapid social and economic change. Law performs its function adequately only when it is suited to the way of life of a people. With social change comes the imperative demand that law shall satisfy the needs which change has created, and so the problem, above all others, of jurisprudence in the modern world is the reconciliation of the demands, paradoxical and to some extent conflicting, that law shall at once have continuity with the past and adaptability to the present and the future.
Harlan F. Stone, The Common Law in the United States, 50 Harv. L. Rev. 4, 11 (1936). See also O. W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897).
Breach of Contract
Even if the employment contract was at will, for the same public policy reasons stated above, we hold that defendant Duke had no right to terminate it for the unlawful purposes alleged in
But, according to the complaint, the employment contract may not have been at will, since it alleges that plaintiff was assured by Duke that she could only be discharged for incompetence, these assurances induced her to move here from Michigan in order to accept the job offer, and were part of her employment contract. In Tuttle v. Kernersville Lumber Co., 263 N.C. 216, 139 S.E. 2d 249 (1964), our Supreme Court by quoting with apparent approval certain provisions of 56 C.J.S. Master and Servant, appeared to recognize that the giving of a consideration by the employee in addition to the usual obligation of service can give rise to a contract for as long as the services are satisfactorily performed even though no definite term is agreed to. And this Court, citing Tuttle, said this in Burkhimer v. Gealy, 39 N.C. App. 450, 454, 250 S.E. 2d 678, 682, disc. rev. denied, 297 N.C. 298, 254 S.E. 2d 918 (1979):
Generally, employment contracts that attempt to provide for permanent employment, or “employment for life,” are terminable at will by either party. Where the employee gives some special consideration in addition to his services, such as relinquishing a claim for personal injuries against the employer, removing his residence from one place to another in order to accept employment, or assisting in breaking a strike, such a contract may be enforced. (Emphasis added.)
The additional consideration that the complaint alleges, her move from Michigan, was sufficient, we believe, to remove plaintiff’s employment contract from the terminable-at-will rule and allow her to state a claim for breach of contract since it is also alleged that her discharge was for a reason other than the unsatisfactory performance of her duties.
Interference With Contract
We now consider whether plaintiffs complaint alleges a claim for relief against Doctors Harmel and Miller for wrongfully
Defendants Harmel and Miller contend that the complaint against them is deficient in several respects. They contend that plaintiff must allege that her damages would not have occurred “but for” their actions and that her complaint is fatally defective for failing to so allege. In support of this contention they cite us to the cases of Smith v. Ford Motor Co., supra, Spartan Equipment Co. v. Air Placement Equipment Co., 263 N.C. 549, 140 S.E. 2d 3 (1965), and Lloyd v. Carnation Co., 61 N.C. App. 381, 301 S.E. 2d 414 (1983), among others. This contention is rejected. In our reading of the cited cases and others, we detect no mandate for the use of the magic words “but for,” the dicta in Lloyd notwithstanding. Rather, we read those cases to say that the complaint in an action for malicious interference with contract must clearly allege that the actions of the defendant were the cause of the plaintiffs damages and that the complaint admits of no other motive for those actions than malice. Childress v. Abeles, supra
Defendants Harmel and Miller further contend that plaintiff’s action for malicious interference with contract against them was properly dismissed because of their status relative to plaintiff’s contract with Duke. Arguing that the “primary prerequisite” in a cause of action for malicious interference with contract is that the defendant be an “outsider” to the contract, they contend that their interest in the contract gives them the status of non-outsiders and precludes the maintenance of this action against them by plaintiff. We disagree. In Smith v. Ford Motor Co., supra, our Supreme Court noted that the use of the term “outsider” was “peculiar to this jurisdiction,” 289 N.C. at 87, 221 S.E. 2d at 292. The Court further noted that the term “appears to connote one who was not a party to the terminated contract and who had no legitimate business interest of his own in the subject matter thereof.” Id. The Smith Court went on to hold that the non-outsider status of a defendant was immaterial where the allegations in the complaint showed that defendants’ motives for procuring the termination of the employment contract were not related to his business interest in the contract. That Court distinguished the case of Wilson v. McClenny, 262 N.C. 121, 136 S.E. 2d 569 (1964), wherein plaintiff, the president of a corpora
Here, though defendants did have status as “non-outsiders” to some extent because of their work at Duke University Medical Center and their professional interest in the quality of medical care at that facility, the complaint shows that their actions resulting in plaintiff’s discharge had no conceivable relationship to their legitimate interests, whatever they were. The complaint alleges that defendants were motivated neither by their legitimate professional interests nor by any deficiency on plaintiff’s part to properly perform her duties as a nurse anesthetist, but by their malicious and wrongful desire to retaliate against her because of her truthful testimony against them in the Downs lawsuit. Taking these allegations as true for the purposes of this appeal, as we are required to do, plaintiff’s complaint states a claim for relief for malicious interference with contract against both Doctors Miller and Harmel and this part of the order is also reversed.
Punitive Damages
In this State, punitive damages can be recovered only for tortuous conduct and then only on proof that the defendant acted to cause plaintiff’s injury wilfully, with malice, or with a reckless disregard for plaintiff’s rights. Hardy v. Toler, 288 N.C. 303, 218
Conclusion and Mandate
The order dismissing the complaint against the defendant Gloria Farmer is affirmed.
The order dismissing the complaint against the defendant Duke University is reversed.
The order dismissing the complaint against Dr. Harmel is affirmed as to the claims asserted against this defendant in plaintiff’s First, Second, and Fourth Claims; but it is reversed as to the claims stated in plaintiff’s Third and Fifth Claims.
The order dismissing the complaint against the defendant Dr. Miller is reversed.
Affirmed in part; reversed in part.
Concurring Opinion
concurring in the result.
I concur in that portion of the majority opinion which holds that the trial court properly dismissed the plaintiff’s complaint against the defendant Farmer. I also concur in those portions which hold that the plaintiff has stated a claim for breach of contract and for tortious interference with contract.
Reference
- Full Case Name
- R. Marie Sides v. Duke University, Gloria Farmer, Merel Harmel, and John Miller
- Cited By
- 173 cases
- Status
- Published