Bombria v. Lowes' Home Ctrs., Inc. ( 2014 )


Menu:
  • An unpublished opinion of the North Carolina Court of Appeals does not constitute
    controlling legal authority. Citation is disfavored, but may be permitted in
    accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
    A   p   p    e   l   l   a    t   e       P   r    o   c   e   d   u    r   e   .
    NO. COA13-680
    NORTH CAROLINA COURT OF APPEALS
    Filed: 21 January 2014
    EDWARD LEE BOMBRIA,
    Plaintiff,
    v.                                   Iredell County
    No. 11 CV 02751
    LOWE’S HOME CENTERS, INC.,
    Defendant.
    Appeal by plaintiff from order signed 15 November 2012 by
    Judge Hugh B. Lewis in Iredell County Superior Court.                 Heard in
    the Court of Appeals 4 November 2013.
    The Angel Law Firm, PLLC, by Kirk J. Angel, for plaintiff–
    appellant.
    Womble Carlyle Sandridge & Rice, LLP, by James M. Powell
    and Jillian M. Benson, for defendant—appellee.
    MARTIN, Chief Judge.
    Plaintiff Edward Lee Bombria brought this action alleging
    that he was wrongfully discharged from his at-will employment
    with defendant Lowe’s Home Centers, Inc. in violation of public
    policy.      He   appeals    from    the    trial   court’s   order   granting
    defendant’s       motion    for     summary    judgment,      dismissing     his
    -2-
    complaint.     We affirm.
    The record before us shows that plaintiff was employed by
    defendant     as    a     Loss    Prevention            Manager.       In     that    capacity,
    plaintiff was responsible for protecting defendant’s customers
    and property.           At all times relevant to this action, defendant’s
    company     policy        provided,       in        relevant        part,     that,     because
    “[s]ummoning        a    law     enforcement            officer      and    authorizing       the
    prosecution        of    a     customer       suspected         of    theft     are     serious
    matters,”     “in        cases      of    suspected            theft,”       “[i]t     is     the
    responsibility of the Store Manager to contact the Regional Loss
    Prevention Director, Area Loss Prevention Manager (ALPM), Vice
    President of Loss Prevention or the Legal Department at the CSC
    before requesting law enforcement assistance in the prosecution
    of the individual.”              The policy further provided that “[f]ailure
    to   obtain    appropriate          approval            in    any    case    may     result    in
    disciplinary        action        up     to        and       including      termination        of
    employment.”        Plaintiff was aware of the policy.
    On or about 4 March 2011, while plaintiff was at work in
    defendant’s        Statesville,          North      Carolina,         store    location,       he
    began monitoring a customer who was acting “suspicious[ly]” on
    the store’s closed circuit television system.                              When the customer
    and his companion left the store and went out to the parking
    lot,    plaintiff         instructed          a    fellow       employee       to     “use    the
    -3-
    surveillance cameras located in the loss prevention office to
    monitor [the] customer,” who then traveled to the Home Depot
    parking lot located across the street from defendant’s store.
    Plaintiff left defendant’s premises and followed the suspect,
    contacting the 911 operator on at least two occasions to report
    his locations.        Plaintiff did not report to his supervisor that
    he had been observing the suspect in the Lowe’s Statesville
    store, or that he had reported the suspect to the Statesville
    Police    Department.        However,     when       later    questioned      by    his
    supervisor, plaintiff indicated that he had received a routine,
    unsolicited call from the Statesville Police Department asking
    him to come and identify merchandise that may have been stolen
    from Lowe’s.        A few days later, plaintiff’s supervisor learned
    from     speaking     with   a    detective     at    the     Statesville     Police
    Department that plaintiff had “initially observed one of the
    suspects     inside     of   Lowe’s     Statesville         store,     followed     the
    individual    to    a   nearby     Cracker     Barrel    restaurant,        and    that
    [plaintiff]     contacted        the   police    to     report       the   suspicious
    individual and his location.”                 Only upon further questioning
    from his supervisor did plaintiff admit that he had “called the
    police department to report the location of the suspects and
    their van.”
    After informing plaintiff that he had violated defendant’s
    -4-
    policy    that    prevents     its    employees     from    contacting      law
    enforcement without prior approval,           plaintiff was terminated.
    The   record     indicates    that    plaintiff’s    Employee    Performance
    Report,   dated    10 March   2011,    described    the    following   as   the
    reasons for plaintiff’s termination:
    On March 4, 2011 [plaintiff] fraudulently
    reported details of his involvement in a
    Lowe’s related apprehension.      [Plaintiff]
    contacted the Statesville PD in regards to
    the fraudulent use of a credit card at his
    store without approval or the necessary
    elements. [Plaintiff] followed the suspects
    from his store without approval.         When
    questioned about the incident, [plaintiff]
    falsified the facts and his involvement.
    Plaintiff admits that almost one week had passed before he first
    mentioned to his supervisor that he had contacted the police to
    report “that there was a suspicious vehicle——suspicious activity
    that [he] thought they should check out.”
    _________________________
    “Summary judgment is . . . a device by which a defending
    party may force the claimant to produce a forecast of claimant’s
    evidence demonstrating that claimant will, at trial, be able to
    make out at least a prima facie case or that he will be able to
    surmount an affirmative defense.”           Dickens v. Puryear, 
    302 N.C. 437
    , 453, 
    276 S.E.2d 325
    , 335 (1981).          “[T]he standard of review
    on appeal from summary judgment is whether there is any genuine
    issue of material fact and whether the moving party is entitled
    -5-
    to a judgment as a matter of law.”                 Bruce–Terminix Co. v. Zurich
    Ins. Co., 
    130 N.C. App. 729
    , 733, 
    504 S.E.2d 574
    , 577 (1998).
    “A party moving for summary judgment may prevail if it meets the
    burden    (1) of   proving         an    essential     element    of    the     opposing
    party’s    claim      is     nonexistent,         or    (2) of     showing       through
    discovery that the opposing party cannot produce evidence to
    support an essential element of his or her claim.”                              Lowe v.
    Bradford, 
    305 N.C. 366
    , 369, 
    289 S.E.2d 363
    , 366 (1982).                           “[O]n
    appellate review of an order for summary judgment, the evidence
    is   considered    in      the   light     most    favorable      to    the   nonmoving
    party,” Garner v. Rentenbach Constructors, Inc., 
    350 N.C. 567
    ,
    572, 
    515 S.E.2d 438
    , 441 (1999), and the order is reviewed de
    novo.     See Howerton v. Arai Helmet, Ltd., 
    358 N.C. 440
    , 470,
    
    597 S.E.2d 674
    , 693 (2004).
    “As a general rule, an employee-at-will has no claim for
    relief for wrongful discharge.                Either party to an employment-
    at-will   contract      can      terminate       the   contract    at    will    for   no
    reason    at   all,     or   for    an    arbitrary      or   irrational        reason.”
    Tompkins v. Allen, 
    107 N.C. App. 620
    , 622, 
    421 S.E.2d 176
    , 178
    (1992) (citation omitted), disc. review denied, 
    333 N.C. 348
    ,
    
    426 S.E.2d 713
     (1993).             However, “our Courts have recognized an
    exception to the employment at will doctrine by identifying a
    cause of action for wrongful discharge in violation of public
    -6-
    policy.”       Considine v. Compass Grp. USA, Inc., 
    145 N.C. App. 314
    , 317, 
    551 S.E.2d 179
    , 181, aff’d per curiam, 
    354 N.C. 568
    ,
    
    557 S.E.2d 528
        (2001);     see   also    Coman     v.    Thomas      Mfg.     Co.,
    
    325 N.C. 172
    , 175, 
    381 S.E.2d 445
    , 447 (1989) (“[T]here can be
    no right to terminate [an employment] contract for an unlawful
    reason or purpose that contravenes public policy[,] . . . [since
    a]   different        interpretation      would       encourage       and    sanction
    lawlessness,       which   law    by    its    very    nature    is    designed       to
    discourage and prevent.” (internal quotation marks omitted)),
    appeal after remand, 
    105 N.C. App. 88
    , 
    411 S.E.2d 626
     (1992).
    “Under    the    exception,       the    employee    has     the      burden    of
    pleading and proving that the employee’s dismissal occurred for
    a reason that violates public policy.”                 Considine, 145 N.C. App.
    at 317, 
    551 S.E.2d at 181
    .              “While there is no specific list
    that enumerates what actions fall within this exception,” Combs
    v. City Elec. Supply Co., 
    203 N.C. App. 75
    , 80, 
    690 S.E.2d 719
    ,
    723 (2010), disc. review denied, 
    365 N.C. 190
    , 
    706 S.E.2d 492
    (2011),    “[t]he     narrow     exceptions      to    [the     employment-at-will
    doctrine] have been grounded in considerations of public policy
    designed either to prohibit status-based discrimination or to
    insure the integrity of the judicial process or the enforcement
    of   the   law.”       Kurtzman    v.   Applied       Analytical      Indus.,      Inc.,
    
    347 N.C. 329
    , 333–34, 
    493 S.E.2d 420
    , 423 (1997), reh’g denied,
    -7-
    
    347 N.C. 586
    , 
    502 S.E.2d 594
     (1998); see, e.g., Ridenhour v.
    Int’l Bus. Machs. Corp., 
    132 N.C. App. 563
    , 568–69, 
    512 S.E.2d 774
    , 778 (“[W]rongful discharge claims have been recognized in
    North     Carolina    where      the    employee         was    discharged         (1) for
    refusing to violate the law at the employer[’]s request, (2) for
    engaging in a legally protected activity, or (3) based on some
    activity by the employer contrary to law or public policy.”
    (citation     omitted)),        disc.       review       denied,       
    350 N.C. 595
    ,
    
    537 S.E.2d 481
        (1999).          “In    order    to    support         a    claim   for
    wrongful    discharge      of    an    at-will       employee,        the       termination
    itself must be motivated by an unlawful reason or purpose that
    is against public policy.”             Garner, 
    350 N.C. at 572
    , 
    515 S.E.2d at 441
    .
    In the present case, plaintiff’s complaint “does not allege
    that    defendant’s      conduct      violated     any     explicit         statutory     or
    constitutional       provision,         nor       does     it    allege          defendant
    encouraged plaintiff to violate any law that might result in
    potential harm to the public.”                See Considine, 145 N.C. App. at
    321, 
    551 S.E.2d at 184
    .               Rather, plaintiff alleges only that
    “[e]mployees in North Carolina are legally privileged to report
    criminal    activities[]        to    law    enforcement        and    discharging        an
    employee    for   such    complaints        is    contrary      to    public      policy.”
    Further, on appeal, plaintiff directs this Court to Combs v.
    -8-
    City    Electric    Supply     Co.,    
    203 N.C. App. 75
    ,    
    690 S.E.2d 719
    (2010),    to      support     his    proposition      that      “an     employee’s
    termination      based   on     reporting      a   suspected      crime    to   law
    enforcement should fall within the public policy exception to
    the at-will employment doctrine.”
    In Combs, this Court concluded that the plaintiff’s claim
    fell within the narrowly-drawn public policy exception to the
    at-will employment doctrine because the plaintiff sufficiently
    alleged    and      presented       evidence     establishing      that    he   was
    discharged for reporting to his defendant–employer, an electric
    supply company, that the company was obtaining money by false
    pretenses by “purposely withholding negative balance statements,
    transferring these monies to a separate account, and sending out
    subsequent statements that did not show the negative balance,
    which induced the customers to pay the amounts for each of the
    invoices listed therein.”             See Combs, 203 N.C. App. at 79–83,
    
    690 S.E.2d at
    723–25.           However, in the present case, plaintiff
    did not allege in his complaint, and does not argue on appeal,
    that defendant’s policy concerning contacting law enforcement is
    violative of “a specified North Carolina public policy,” see
    McDonnell v. Tradewind Airlines, Inc., 
    194 N.C. App. 674
    , 677–
    78,    
    670 S.E.2d 302
    ,     305    (internal     quotation     marks    omitted),
    disc. review denied, 
    363 N.C. 128
    , 
    675 S.E.2d 657
     (2009), or
    -9-
    that    plaintiff      was   terminated      from       his    position        because    he
    observed and reported conduct by defendant that was violative of
    “a specified North Carolina public policy.”                         See 
    id.
     (internal
    quotation marks omitted).            Therefore, Combs is inapposite to the
    present case.
    Instead, the undisputed facts show that, immediately after
    he instructed a fellow employee to monitor the vehicle of a
    “suspicious”          individual     leaving        defendant’s          parking         lot,
    plaintiff left defendant’s premises and drove to three different
    locations, each of which was in close proximity to, and in sight
    of,    the    three    destinations       visited       by    the   same       vehicle    and
    suspicious individual that plaintiff had been closely monitoring
    on closed circuit television in defendant’s Statesville store
    just minutes earlier, and that plaintiff reported the location
    of the “suspicious” individual to 911 at least twice during this
    time.        Plaintiff    also     does    not    dispute      that      his    supervisor
    completed an employee performance report regarding plaintiff’s
    termination,      which      described     as     the    reasons      for      plaintiff’s
    termination——in          addition     to    his      failure        to      comply       with
    defendant’s      procedures      about     contacting         law   enforcement——that
    plaintiff “fraudulently reported details of his involvement in a
    Lowe’s related apprehension,” “followed the suspects from his
    store    without       approval,”    and,        “[w]hen      questioned        about    the
    -10-
    incident, [plaintiff] falsified the facts and his involvement.”
    Because      “[p]laintiff    failed      to    allege      in    his   complaint    a
    compelling consideration of public policy as expressed in our
    [S]tate’s      statutes     or    constitution       that       was    violated    by
    defendant, or to allege any specific conduct by defendant that
    violated this same expression of our [S]tate’s public policy,”
    see Considine,        145 N.C. App. at         321, 
    551 S.E.2d at 184
    ,     and
    because      “[a]ny   exception    to   the    at   will    employment       doctrine
    should be adopted only with substantial justification grounded
    in     compelling     considerations      of     public         policy,”     see   
    id.
    (emphasis added) (internal quotation marks omitted), we conclude
    that    an   essential    element   of    plaintiff’s       claim      for   wrongful
    termination——namely, that plaintiff’s employment with defendant
    was terminated in violation of a specified North Carolina public
    policy——is nonexistent.           See Lowe, 305 N.C. at 369, 
    289 S.E.2d at 366
    .       Accordingly, we conclude that the trial court did not
    err when it granted defendant’s motion for summary judgment and
    dismissed plaintiff’s complaint.               Our disposition on this issue
    renders it unnecessary to address plaintiff’s remaining issues
    on appeal.
    Affirmed.
    Judges STEELMAN and DILLON concur.
    Report per Rule 30(e).