Mr. B's Oil Co. v. Register

351 S.E.2d 533, 181 Ga. App. 166, 1986 Ga. App. LEXIS 2349

• Court: Court of Appeals of Georgia
• Decided: December 5, 1986
• Docket: 72311
• Status: Published

Opinions

Beasley, Judge.

Register was hired, without written contract, to work in a convenience store owned by Mr. B’s Oil Company, Inc. It is undisputed that the employment was terminable at will. Shortly after starting, Register was required to submit to a “Psychological Stress Evaluation” (PSE) test, which attempts to analyze the truthfulness of an individual’s answers to certain questions by measuring voice stress. Thereafter, her employment was terminated.

Register sued the company alleging that her employment had been wrongfully terminated because of the answers to irrelevant PSE questions; that the PSE was inherently unreliable; that the company had administered the test intending to terminate her regardless of the results; and that prior to employment the company had represented that no test would be necessary to continue in the job but had then insisted on the test, administered it in bad faith and then wrongfully terminated her. She further claimed that the company made known to others the circumstances of the termination causing her intense suffering and embarrassment and reduced opportunities for employment. She demanded judgment for $50,000 actual damages and $50,000 punitive damages.

A later amendment claimed that the circumstances of the administration of the PSE constituted an invasion of privacy for which Register should recover $25,000 general damages and $25,000 punitive damages. Ostensibly in response to the amendment, the company filed a counterclaim but the trial court, virtually without objection from either side, dismissed both the amendment and the counterclaim. Therefore, Register’s right of recovery was dependent on proving any cause of action raised in the original complaint.

We granted interlocutory review of the trial court’s denial of the defendant company’s motion to dismiss for failure to state a claim. The former employer maintains that the suit for wrongful termination arising in contract should have been dismissed because plaintiff’s employment was terminable at will and that no such cause of action exists independently in tort.

Should the trial court have granted defendant’s motion to dismiss? “ ‘Not unless the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts should the complaint be dismissed.’ ” Storm Systems v. Kidd, 157 Ga. App. 527, 528 (3) (278 SE2d 109) (1981). Construing Register’s pleadings to do substantial justice, OCGA § 9-11-8 (f), and to serve her best interests, Rodgers v. Ga. Tech Athletic Assn., 166 Ga. App. 156, 161 (2) (b) (303 SE2d 467) (1983), that is, with a view of recovery under either tort or contract law, we find that her complaint-is a suit for wrongful termination and nothing more.

In such suits in employment at will situations, plaintiff often pleads emotional distress, embarrassment, difficulty in obtaining other employment, etc., stemming from the termination of employment. Where the plaintiff’s employment is terminable at will, the employer, with or without cause and regardless of the motives involved, can discharge the employee without incurring liability. Lengthy allegations regarding the motives or reasons for the firing are legally irrelevant. See, e.g., Jacobs v. Ga.-Pacific Corp., 172 Ga. App. 319 (323 SE2d 238) (1984); Troy v. Interfinancial, Inc., 171 Ga. App. 763 (320 SE2d 872) (1984); West Va. Glass Specialty Co. v. Guice & Walshe, Inc., 170 Ga. App. 556 (317 SE2d 592) (1984); Andress v. Augusta Nursing Facilities, 156 Ga. App. 775 (275 SE2d 368) (1980).

Wrongful termination is a tortious act growing out of the breach of the employment contract. This court has repeatedly held that in the absence of a controlling written contract of employment, there is no cause of action against the employer for alleged wrongful termination. Jacobs v. Ga.-Pacific Corp., supra at 320.

Register’s argument for the validity of maintaining her suit is that it is not one for wrongful termination but rather one for invasion of privacy growing out of loss of reputation as a result of defendant’s bad faith inquiry into her private affairs via the administration of the PSE. She also raises the specter of libel or slander and the intentional infliction of emotional distress.¹ The negative impacts plaintiff alleges all directly stem from the termination and are clearly not independent of the severance of employment. The only suggested cause of action for invasion of privacy, even if we were to construe it as legally separate from the alleged wrongful termination, was dismissed from the suit.

Since plaintiff would not be able to recover under any state of provable facts, the trial court erred in denying the defendant company’s motion to dismiss the suit for failure to state a claim.

Judgment reversed.

Banke, C. J., Birdsong, P. J., Carley and Sognier, JJ., concur. Deen, P. J., McMurray, P. J., Pope and Ben-ham, JJ., concur in part and dissent in part.

1 During a hearing on a motion in limine in the case, the court stated: “Well, now my question is this. When you decide that the wrong was committed by the administration of the test, could you not have refused to take the test? See? Then they say, ‘Take the test or you’re fired.’ So she’s fired. Then you have nothing more than a wrongful termination. Is that right?” Plaintiffs counsel responded: “I think that would be right.”