Kelly v. Carteret County Board of Education

560 S.E.2d 390, 149 N.C. App. 188, 2002 N.C. App. LEXIS 136

• Court: Court of Appeals of North Carolina
• Decided: March 5, 2002
• Docket: No. COA01-468
• Status: Published

Opinions

GREENE, Judge.

Tina Kelly (Plaintiff) appeals an order filed 19 January 2001 granting a motion to dismiss in favor of Carteret County Board of Education, David Lenker, Jr., Renee Newman, and John Welmers (collectively, Defendants).

Plaintiff filed a complaint on 19 April 2000 alleging she was employed in the Carteret County School System as an assistant teacher at White Oak Elementary School (the School) from 14 January 1997 until 18 August 1997. On 18 August 1997, Plaintiff submitted to the School a letter from her physician stating that due to a seizure disorder and other medical conditions, Plaintiff should not be driving a school bus. Plaintiff alleged that if she “were to drive a school bus, it would jeopardize the safety of persons and property on or near the public highways.” On 19 August 1997, the School informed Plaintiff that “because of her unwillingness and inability to drive a school bus[,] she had one hour to either resign or be terminated.” Plaintiff was terminated from her position on 19 August 1997. Plaintiffs complaint also alleges she was wrongfully terminated in violation of the public policy of North Carolina that “all people . . . hold employment without discrimination on the bases of handicap or disability” and “that the safety of persons and property on or near the public highways be protected.”¹

Defendants filed a motion to dismiss Plaintiff’s complaint on 7 July 2000, arguing: they were immune from Plaintiff’s suit under the doctrine of public official immunity; the gravamen of Plaintiff’s complaint falls “within the purview of the North Carolina Persons with Disabilities Protection Act codified at G.S. 168A-1, et[.] seq.[, thus] . . . Plaintiff’s claim is time barred by the applicable statute of limitations set forth in [that] Act”; and “no cause of action for wrongful discharge exists when an employee is terminated for failure to perform an act which he may be able to prove was unsafe.”

In its order granting Defendants’ motion to dismiss Plaintiff’s complaint, the trial court concluded:

all the allegations forming the gravamen of [P]laintiff’s complaint fall within the scope of the North Carolina Persons With Disabilities Protection Act codified at G.S. 168A-1 et. seq. and that within this Act at G.S. 168A-12 is a 180[-]day statute of limitation[s] applicable to [Plaintiff’s complaint. The [trial] court concludes that [P]laintiff’s complaint is barred by this statute of limitations.

The dispositive issue is whether “all the allegations forming the gravamen of Plaintiff’s complaint fall” within the scope of a disability discrimination claim.

The “gravamen” of a complaint is its “material part” or “the grievance or injury specially complained of.” Black’s Law Dictionary 701 (6th ed. 1990). The injury complained of in an employment disability discrimination claim is that the employee was terminated “on the basis of a disabling condition.” N.C.G.S. § 168A-5(a)(1) (1999). In the context of a claim for wrongful termination in violation of public policy, the injury specially complained of is that an employee was terminated for refusing to perform an act which would violate public policy after being requested to do so. See Coman v. Thomas Manufg. Co., Inc., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989) (a cause of action exists for wrongful discharge for refusal to violate public policy).

In this case, Plaintiff’s allegations only complain of an injury based on her disabling condition. Although Plaintiff argues her complaint sets forth a claim for relief based on the public policy of North Carolina to ensure the safety of persons and property, there are no allegations to support an inference that Defendants wanted Plaintiff to drive a school bus after learning of her seizure disorder. There is no indication from Plaintiffs complaint that after informing the School of her medical condition, the School either implicitly or explicitly gave her a choice to drive the school bus or be terminated. Indeed, Plaintiffs allegations show that after learning of the disorder, Plaintiffs only choice was to either resign or be terminated. All of Plaintiffs allegations relate to her termination by the School based on her inability to drive a school bus due to her seizure disorder. Accordingly, as the “gravamen” of Plaintiffs complaint is based on her disabling condition, and not on her refusal to violate public policy, Plaintiffs complaint only sets forth an injury based on a discrimination claim. Thus, as we conclude the allegations forming the gravamen of Plaintiffs complaint are within the scope of a discrimination claim and Plaintiff has expressly abandoned her disability discrimination claim, this appeal is dismissed.²

Dismissed.

Judge TYSON concurs. Judge HUNTER dissents.

1 . In her brief to this Court, Plaintiff has expressly abandoned her disability discrimination claim and only appeals the trial court’s dismissal of her claim for wrongful termination in violation of the public policy of North Carolina to protect the safety of persons and property.

2 . Accordingly, as Plaintiff “does not address the issue of whether a wrongful discharge claim based on disability has a six-month statute of limitations” and she has expressly abandoned her discrimination claim, we need not address the applicable statute of limitations to the discrimination claim as brought by Plaintiff.