{ "id": 11651968, "name": "ZANNIE GARNER, Plaintiff v. RENTENBACH CONSTRUCTORS INCORPORATED, Defendant and Third-Party Plaintiff v. ALLIED CLINICAL LABORATORIES, Third-Party Defendant", "name_abbreviation": "Garner v. Rentenbach Constructors Inc.", "decision_date": "1998-06-02", "docket_number": "No. COA97-906", "first_page": "624", "last_page": "630", "citations": [ { "type": "official", "cite": "129 N.C. App. 624" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "381 S.E.2d 445", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "employee discharged for refusing to violate Department of Transportation regulations concerning driving time of truck drivers by refusing to falsify time logs" } ], "opinion_index": 0 }, { "cite": "325 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2488329 ], "year": 1989, "pin_cites": [ { "parenthetical": "employee discharged for refusing to violate Department of Transportation regulations concerning driving time of truck drivers by refusing to falsify time logs" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0172-01" ] }, { "cite": "487 S.E.2d 758", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "parenthetical": "employee fired for refusing to cash certificate of deposit without notice to debtors" } ], "opinion_index": 0 }, { "cite": "345 N.C. 755", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 54021, 54161, 54066, 54139, 53919 ], "year": 1997, "pin_cites": [ { "parenthetical": "employee fired for refusing to cash certificate of deposit without notice to debtors" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0755-01", "/nc/345/0755-03", "/nc/345/0755-04", "/nc/345/0755-05", "/nc/345/0755-02" ] }, { "cite": "478 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "124 N.C. App. 713", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11890532 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc-app/124/0713-01" ] }, { "cite": "416 S.E.2d 166", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "169" }, { "page": "171" } ], "opinion_index": 0 }, { "cite": "331 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498595 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "353" }, { "page": "356-57" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0348-01" ] }, { "cite": "488 S.E.2d 802", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "346 N.C. 547", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139651, 139476, 139417, 139579, 139454 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/346/0547-02", "/nc/346/0547-01", "/nc/346/0547-03", "/nc/346/0547-05", "/nc/346/0547-04" ] }, { "cite": "484 S.E.2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "842-43" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 292", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11710155 ], "year": 1997, "pin_cites": [ { "page": "296" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0292-01" ] }, { "cite": "328 S.E.2d 818", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "823" }, { "page": "826" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 331", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524570 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "336" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0331-01" ] }, { "cite": "347 N.C. 586", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551075, 551197 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/347/0586-02", "/nc/347/0586-01" ] }, { "cite": "493 S.E.2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "422" }, { "page": "423" } ], "opinion_index": 0 }, { "cite": "347 N.C. 329", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551232 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "331" }, { "page": "334" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0329-01" ] }, { "cite": "425 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "736" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 52", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524183 ], "year": 1993, "pin_cites": [ { "page": "54" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0052-01" ] }, { "cite": "180 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "830" } ], "opinion_index": 0 }, { "cite": "278 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561041 ], "year": 1971, "pin_cites": [ { "page": "534" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0523-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 95-231", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 95-232", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 } ], "analysis": { "cardinality": 639, "char_count": 14002, "ocr_confidence": 0.77, "pagerank": { "raw": 1.404307931050368e-07, "percentile": 0.6453351141321366 }, "sha256": "e0010f307e1599c72607c47fcee3539634c316fafd3a4efa9e03a2c2c9134d71", "simhash": "1:080d3b7287ff4412", "word_count": 2177 }, "last_updated": "2023-07-14T18:14:06.814789+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and TIMMONS-GOODSON concur." ], "parties": [ "ZANNIE GARNER, Plaintiff v. RENTENBACH CONSTRUCTORS INCORPORATED, Defendant and Third-Party Plaintiff v. ALLIED CLINICAL LABORATORIES, Third-Party Defendant" ], "opinions": [ { "text": "GREENE, Judge.\nZannie Garner (plaintiff) appeals from an order of the trial court granting Rentenbach Constructors Incorporated (defendant) summary judgment on the plaintiffs claims for wrongful discharge and intentional infliction of emotional distress.\nThe facts are as follows: The plaintiff was hired by the defendant in July of 1993 as a caipenter. There is no evidence in the record that the plaintiff was hired pursuant to a contract and the plaintiff does not contend that he was not an at-will employee. In June of 1994, the defendant provided the plaintiff with a copy of a substance abuse policy which was being implemented. Approximately six weeks later, on 26 July 1994, the plaintiff was asked to submit to random drug screening by giving a urine sample and the plaintiff agreed to do so. On 8 August 1994, the defendant terminated the plaintiffs employment for violating the company\u2019s substance abuse policy because he had tested positive for drug use.\nIn his complaint the plaintiff alleged that the defendant had not followed the drug testing requirements set forth by N.C. Gen. Stat. \u00a7 95-232. Among other things, the plaintiff alleged that Allied Clinical Laboratories (ACL), the laboratory used by the defendant to conduct the laboratory tests on the urine sample, did not qualify as an \u201capproved\u201d laboratory pursuant to the statute. At an Employment Security Commission hearing, Wayne Amman (Amman), the Assistant Safety Director for the defendant who was responsible for implementing the drug screening program, testified that an ACL representative had specifically informed him that ACL was \u201ccertified,\u201d however, Amman did not question the type of certification held by ACL to verify that it was \u201capproved\u201d pursuant to the definition in N.C. Gen. Stat. \u00a7 95-231. Testimony by ACL\u2019s representative, Dr. Evan Holzberg, revealed that ACL was not \u201capproved\u201d as required by the statute.\nThe dispositive issue is whether the termination of an at-will employee based on a positive reading of a drug test conducted pursuant to the employer\u2019s drug testing policy can constitute a wrongful discharge when the drug test was not performed consistent with a state statute.\nSummary judgment shall be granted if there are no genuine issues of material fact and the pleadings and evidence show that a party is entitled to a judgment as a matter of law. Kessing v. Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971). All of the evidence is viewed in the light most favorable to the non-moving party. McMurry v. Cochrane Furniture Co., 109 N.C. App. 52, 54, 425 S.E.2d 735, 736 (1993).\nOur legislature has set forth procedures required of employers who choose to conduct drug screening on their employees. The purpose of the statutes is \u201cto establish procedural and other requirements for the administration of controlled substance examinations\u201d because \u201cindividuals should be protected from unreliable and inadequate examinations and screening.\u201d N.C.G.S. \u00a7 95-230 (1993). N.C. Gen. Stat. \u00a7 95-232 provides that \u201c[a]n examiner who requests or requires an examinee to submit to a controlled substance examination shall comply with the procedural requirements set forth in [that] section.\u201d N.C.G.S. \u00a7 95-232 (Supp. 1997). One of the requirements that examiners must follow is that only \u201capproved\u201d laboratories may be used for the screening and confirmation of the samples collected for examination. N.C.G.S. \u00a7 95-232(c) (1993). An \u201capproved\u201d laboratory is \u201ca clinical chemistry laboratory which performs controlled substances testing and which has demonstrated satisfactory performance in the forensic urine drug testing programs of the United States Department of Health and Human Services or the College of American Pathologists for the type of tests and controlled substances being evaluated.\u201d N.C.G.S. \u00a7 95-231(1) (1993). Violations of the procedural requirements are to be investigated by the Commissioner of Labor and any actions to recover penalties are to be brought by the Commissioner of Labor. N.C.G.S. \u00a7 95-234 (1993).\n\u201c[I]n the absence of a contractual agreement between an employer and an employee establishing a definite term of employment, the relationship is presumed to be terminable at the will of either party without regard to the quality of performance of either party.\u201d Kurtzman v. Applied Analytical Industries, Inc., 347 N.C. 329, 331, 493 S.E.2d 420, 422 (1997), reh\u2019g denied, 347 N.C. 586,-S.E.2d \u2014 (1998). In general, an at-will employee has no claim for wrongful discharge. Sides v. Duke University, 74 N.C. App. 331, 336, 328 S.E.2d 818, 823 (1985), overruled on other grounds by Kurtzman, 347 N.C. 329, 493 S.E.2d 420. Exceptions to this general rule have been recognized and, therefore \u201cwhile there may be a right to terminate [at-will employment] for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such [employment] for an unlawful reason or purpose that contravenes public policy.\u201d Id. at 342, 328 S.E.2d at 826. Any exceptions to the at-will employment doctrine, however, \u201cshould be adopted only with substantial justification grounded in compelling considerations of public policy.\u201d Kurtzman, 347 N.C. at 334, 493 S.E.2d at 423.\nPublic policy has been defined to be \u201cthe principle of law that holds no citizen can lawfully do that which has a tendency to be injurious to the public or against the public good.\u201d Johnson v. Mayo Yarns, Inc., 126 N.C. App. 292, 296, 484 S.E.2d 840, 842-43, disc. review denied, 346 N.C. 547, 488 S.E.2d 802 (1997). Although there is no specific list of what actions constitute violations of public policy, \u201cat the very least public policy is violated when an employee is fired in contravention of express policy declarations contained in the North Carolina General Statutes.\u201d Amos v. Oakdale Knitting, 331 N.C. 348, 353, 416 S.E.2d 166, 169 (1992).\nIn this case, there is no dispute that the plaintiff was an at-will employee. Furthermore, there is no dispute that the plaintiff was discharged as a consequence of a positive reading on a urine drug test that was required as a condition of employment, and that this test was conducted inconsistently with a specific state statute. The plaintiff claims that the statutory requirement that employee drug testing be performed by a laboratory certified consistent with the statute is an express policy declaration of the legislature and any testing inconsistent with the statute therefore violates public policy. We agree. The General Assembly has explicitly declared its purpose for enacting the employee drug screening procedures: To protect employees from \u201cunreliable and inadequate examinations and screening for controlled substances.\u201d N.C.G.S. \u00a7 95-230. To insure that employee drug testing is reliable the legislature requires that the screening be conducted in laboratories certified consistent with the statute. N.C.G.S. \u00a7 95-232. It follows that employee drug testing inconsistent with the requirements of the statute violates public policy and that any discharge based on the results of such a test supports a claim for wrongful discharge. Summary judgment for the defendant was therefore error.\nIn so holding, we reject the defendant\u2019s argument that wrongful discharge claims for at-will employees exist only when the discharge is the result of an employee\u2019s refusal to violate the law upon the request of the employer or the discharge is the result of the employee engaging in a legally protected activity. We acknowledge that the previous decisions of our courts recognizing wrongful discharge claims by at-will employees have presented facts consistent with the defendant\u2019s argument. See Roberts v. First-Citizens Bank and Trust Co., 124 N.C. App. 713, 478 S.E.2d 809 (1996), appeal withdrawn, 345 N.C. 755, 487 S.E.2d 758 (1997) (employee fired for refusing to cash certificate of deposit without notice to debtors); Amos, 331 N.C. 348, 416 S.E.2d 166 (employee discharged for refusing to work below minimum wage); Coman v. Thomas Manufacturing Co., 325 N.C. 172, 381 S.E.2d 445 (1989) (employee discharged for refusing to violate Department of Transportation regulations concerning driving time of truck drivers by refusing to falsify time logs); Sides, 74 N.C. App. 331, 328 S.E.2d 818 (employee fired for refusing to testify untruthfully or incompletely in lawsuit against her employer). We do not, however, read these cases as precluding a wrongful discharge claim where the discharge is based on some unlawful activity of the employer or some activity of the employer in violation of public policy.\nWe also reject the defendant\u2019s argument that the plaintiff is precluded from filing this claim because the Commissioner of Labor is authorized to investigate and file claims against employers who violate the drug screening procedures of section 95-232. The \u201cavailability of alternate remedies does not prevent a plaintiff from seeking tort remedies for wrongful discharge based on the public policy exception\u201d unless federal legislation preempts the common law claim [for wrongful discharge] or our State legislature intended to supplant the [wrongful discharge] claim with exclusive statutory remedies. Amos, 331 N.C. at 356-57, 416 S.E.2d at 171.\nIn this case, we are not aware of any federal law that preempts this wrongful discharge claim and the defendant has not cited any. Furthermore, the legislature has not provided that the actions by the Commissioner of Labor are the exclusive remedy. The plaintiff is therefore not preempted by either federal or state law from filing this wrongful discharge claim.\nReversed and remanded.\nJudges WALKER and TIMMONS-GOODSON concur.\n. Although the plaintiff appeals from the summary judgment dismissing his wrongful discharge and intentional infliction of emotional distress claims, he has abandoned his emotional distress claim by not addressing it in his appellate brief, and we therefore do not address that claim. N.C.R. App. P. 28(b) (6).\n. \u201cExaminer\u201d is defined as the \u201cperson, firm, or corporation, . . . who is the employer or prospective employer of the examinee and who performs or has performed by an approved laboratory a controlled substance examination.\u201d N.C.G.S. \u00a7 95-231(2) (1993). \u201cExaminee\u201d is defined as \u201can individual who is an employee of the examiner or an applicant for employment with the examiner and who is requested or required by an examiner to submit to a controlled substance examination.\u201d N.C.G.S. \u00a7 95-231(3).\n. This statue has been amended by our legislature; however, the changes do not affect this case. Effective 6 July 1995, an examiner has the option of \u201c(1) performing the screening on-site for prospective employees, provided that samples which demonstrate a positive drug test result are sent to an approved laboratory for confirmation, or (2) having an approved laboratory perform both the screening and confirmation tests as provided in this section.\u201d N.C.G.S. \u00a7 95-232(c) (Supp. 1997).\n. The defendants contend that the violation of section 95-232 was \u201cinadvertent\u201d and thus they should not be held responsible for such violation. We disagree. The statute does not require that the violations be intentional. N.C.G.S. \u00a7 95-234 (\u201cAny examiner who violates the provisions of this Article shall be subject to a civil penalty . . . .\u201d). Thus even \u201cinadvertent\u201d or unintentional violations are inconsistent with the statute.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Mark Floyd Reynolds, II, for plaintiff appellant.", "Carruthers & Roth, P.A., by Kenneth R. Keller, for Defendant Appellee Rentenbach Constructors, Inc.", "Ogletree, Deakins, Nash, Smoak & Stewart, P.C., by Guy F. Driver, Jr., for Third-Party Defendant Appellee Allied Clinical Laboratories." ], "corrections": "", "head_matter": "ZANNIE GARNER, Plaintiff v. RENTENBACH CONSTRUCTORS INCORPORATED, Defendant and Third-Party Plaintiff v. ALLIED CLINICAL LABORATORIES, Third-Party Defendant\nNo. COA97-906\n(Filed 2 June 1998)\n1. Labor and Employment \u00a7 77 (NCI4th)\u2014 employee drug testing \u2014 noncompliance with statute \u2014 wrongful discharge\nThe termination of an at-will employee based upon a positive drug test conducted pursuant to the employer\u2019s drug testing policy can constitute a wrongful discharge when the drug test was not performed consistently with a state statute.\n2. Labor and Employment \u00a7 77 (NCI4th)\u2014 employee drug testing \u2014 laboratory not properly certified \u2014 wrongful discharge\nThe statutory requirement that employee drug testing be performed by a laboratory certified consistently with the statute is an express policy declaration of the legislature, and any testing inconsistent with the statute violates public policy so that the discharge of an at-will employee based on the results of such a test supports a claim for wrongful discharge. N.C.G.S. \u00a7 95-232.\n3. Labor and Employment \u00a7 77 (NCI4th)\u2014 at-will employee\u2014 wrongful discharge \u2014 public policy violation\nWrongful discharge claims for at-will employees do not exist only when the discharge is the result of an employee\u2019s refusal to violate the law upon the request of the employer or the discharge is the result of the employee engaging in a legally protected activity. Prior decisions do not preclude a wrongful discharge claim where the discharge is based on some unlawful activity of the employer or some activity of the employer in violation of public policy.\n4. Labor and Employment \u00a7 77 (NCI4th)\u2014 employee drug testing \u2014 statutory violations \u2014 Department of Labor claims \u2014 wrongful discharge claim not preempted\nThe statutory authorization of the Commissioner of Labor to investigate and file claims against employers who violate the drug screening procedures of N.C.G.S. \u00a7 95-232 did not preempt plaintiff at-will employee\u2019s action against the employer for wrongful discharge based upon the public policy exception as a consequence of a urine drug test conducted inconsistently with a state statute.\nAppeal by plaintiff, Zannie Gamer, from order filed 27 February 1997 by Judge Peter M. McHugh in Guilford County Superior Court. Heard in the Court of Appeals 17 March 1998.\nMark Floyd Reynolds, II, for plaintiff appellant.\nCarruthers & Roth, P.A., by Kenneth R. Keller, for Defendant Appellee Rentenbach Constructors, Inc.\nOgletree, Deakins, Nash, Smoak & Stewart, P.C., by Guy F. Driver, Jr., for Third-Party Defendant Appellee Allied Clinical Laboratories." }, "file_name": "0624-01", "first_page_order": 664, "last_page_order": 670 }