{ "id": 11093190, "name": "ANTHONY SIMMONS, Plaintiff-Appellant v. CHEMOL CORPORATION, Defendant-Appellee", "name_abbreviation": "Simmons v. Chemol Corp.", "decision_date": "2000-04-04", "docket_number": "No. COA99-385-2", "first_page": "319", "last_page": "325", "citations": [ { "type": "official", "cite": "137 N.C. App. 319" } ], "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": "447 S.E.2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 1221548 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ga/259/0447-02" ] }, { "cite": "336 N.C. 615", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538080, 2538689, 2537376, 2537868, 2537009 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/336/0615-05", "/nc/336/0615-01", "/nc/336/0615-04", "/nc/336/0615-02", "/nc/336/0615-03" ] }, { "cite": "440 S.E.2d 119", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "123" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 579", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523743 ], "year": 1994, "pin_cites": [ { "page": "586" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0579-01" ] }, { "cite": "350 N.C. 308", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132134, 132231, 132104, 132238, 132312 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0308-02", "/nc/350/0308-04", "/nc/350/0308-03", "/nc/350/0308-05", "/nc/350/0308-01" ] }, { "cite": "509 S.E.2d 790", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "791" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 525", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11202172 ], "year": 1998, "pin_cites": [ { "page": "526" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0525-01" ] }, { "cite": "276 S.E.2d 325", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567370 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0437-01" ] }, { "cite": "414 S.E.2d 22", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "27", "parenthetical": "quoting Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981)" } ], "opinion_index": 0 }, { "cite": "331 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499459 ], "year": 1992, "pin_cites": [ { "page": "82", "parenthetical": "quoting Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981)" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0073-01" ] }, { "cite": "136 N.C. App. 340", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239534 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc-app/136/0340-01" ] }, { "cite": "416 S.E.2d 166", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "331 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498595 ], "year": 1992, "pin_cites": [ { "page": "353" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0348-01" ] }, { "cite": "381 S.E.2d 445", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "447" } ], "opinion_index": 0 }, { "cite": "325 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2488329 ], "year": 1989, "pin_cites": [ { "page": "175" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0172-01" ] }, { "cite": "432 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 163", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530466, 2528738, 2528402, 2531512, 2528505 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0163-04", "/nc/334/0163-05", "/nc/334/0163-02", "/nc/334/0163-03", "/nc/334/0163-01" ] }, { "cite": "428 S.E.2d 254", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "258" }, { "page": "257" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 466", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525762 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "472" }, { "page": "470" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0466-01" ] }, { "cite": "414 S.E.2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "342" }, { "page": "342", "parenthetical": "all inferences drawn in favor of non-movant in deciding motion for summary judgment" } ], "opinion_index": 0 }, { "cite": "331 N.C. 57", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2500046 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "63" }, { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0057-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-422.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "opinion_index": 0 } ], "analysis": { "cardinality": 758, "char_count": 14999, "ocr_confidence": 0.753, "pagerank": { "raw": 1.563229142160287e-07, "percentile": 0.6772659332648351 }, "sha256": "2322c2e1392f77f3272bb6ef2c07b2feeb45b33d7c1a54b38ff4023542b438c1", "simhash": "1:cfab9164e6bd7ef4", "word_count": 2283 }, "last_updated": "2023-07-14T18:42:18.277293+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES and Judge WYNN concur." ], "parties": [ "ANTHONY SIMMONS, Plaintiff-Appellant v. CHEMOL CORPORATION, Defendant-Appellee" ], "opinions": [ { "text": "WALKER, Judge.\nOn 15 May 1998, plaintiff filed this action alleging wrongful discharge in violation of public policy pursuant to N.C. Gen. Stat. \u00a7 143-422.2, along with a claim for negligent and intentional infliction of emotional distress. Defendant answered and moved to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure on 18 June 1998, which the trial court denied on 13 August 1998. On 15 January 1999, defendant moved for summary judgment pursuant to Rule 56 of the North Carolina Rules of Civil Procedure, which the trial court granted on 10 February 1999.\nPlaintiff began his employment with defendant as a general welder on or about 22 July 1996. Approximately six months later, plaintiff began suffering from a respiratory condition subsequently diagnosed as \u201crhinitis,\u201d an allergic reaction characterized by the inflammation of the nasal membrane. See Kenneth G. Trestman, M.D., and Carey Howes, Medical Editor, Allergies, in Attorneys\u2019 Textbook of Medicine par. 65.41 (3d ed. 1998). Plaintiff claims he had difficulty breathing while performing his duties at work and that the quality of his work and his attendance record suffered due to his condition. Further, he requested that defendant provide breathing masks, ceiling fans and other breathing aids that would accommodate his breathing problems; however, these requests were disregarded. Plaintiff also claims he was required to work in a chemical tank without adequate ventilation, was not allowed time off for medical treatment for his condition, and was given a poor evaluation for attendance although the absences were verified by his doctors. As a result, plaintiff contends he suffered chronic headaches, fatigue, financial problems and \u201csignificantly exacerbated breathing problems\u201d due to defendant\u2019s behavior.\nPlaintiff argues that the trial court erred in granting summary judgment to defendant on his claim of wrongful discharge. Specifically, plaintiff produced a sufficient forecast of evidence that his respiratory condition rendered him handicapped as defined in N.C. Gen. Stat. \u00a7 168A-3(4)(a) (1998 Cum. Supp.). Additionally, defendant terminated his employment because of his condition, thus violating the public policy set out in N.C. Gen. Stat. \u00a7 143-422.2 (1999). Plaintiff also claims that defendant\u2019s indifference and failure to provide reasonable accommodations so he could perform his job constitutes intentional and negligent infliction of emotional distress.\nDefendant contends that plaintiff\u2019s respiratory condition is not a handicap protected under N.C. Gen. Stat. \u00a7 143-422.2. Specifically, plaintiff\u2019s rhinitis is a temporary condition that did not substantially limit plaintiff\u2019s ability to breathe or work. Additionally, defendant contends that plaintiff was terminated for poor performance in his employment. In support of its motion for summary judgment, defendant submitted the affidavits of maintenance supervisor Gary Keegan and plant manager Spencer F. Foster, a job performance evaluation of plaintiff, and other documents from plaintiffs employment file. These show that:\n(1) On 30 May 1997, plaintiff was reprimanded by Keegan for plaintiffs excessive personal phone calls during working hours;\n(2) On 5 June 1997, plaintiff was counseled for his failure to work required overtime;\n(3) On 29 August 1997, plaintiff was again reprimanded for personal phone calls during working hours and was informed that any further violation of this policy would result in his suspension or possible termination; and\n(4) Plaintiffs 4 September 1997 performance evaluation resulted in an overall score below the acceptable standard.\nDefendant claims that plaintiffs poor quality, of work, lack of progress, and failure to meet minimum quality standards within his department were the reasons for his termination on 16 September 1997.\nSummary judgment should be granted only \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1 Rule 56(c) (1999). The party moving for summary judgment bears the burden of establishing the lack of any triable issue and may meet this burden by (1) proving that an essential element of the opposing party\u2019s claim is nonexistent; (2) showing through discovery that the opposing party cannot produce evidence to support an essential element; or (3) showing that the opposing party cannot surmount an affirmative defense. Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992).\nIn North Carolina, absent an employment contract for a definite period of time, \u201cboth employer and employee are generally free to terminate their association at any time and without reason.\u201d Gravitte v. Mitsubishi Semiconductor America, 109 N.C. App. 466, 472, 428 S.E.2d 254, 258, disc. review denied, 334 N.C. 163, 432 S.E.2d 360 (1993).\nAn exception to the employment-at-will doctrine exists when an employee is discharged in contravention of public policy. Coman v. Thomas Manufacturing Co., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989). \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 Co., 331 N.C. 348, 353, 416 S.E.2d 166, 169 (1992). The Equal Employment Practices Act of North Carolina (the Employment Act) provides in pertinent part:\nIt is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of. .. handicap. .. .\nN.C. Gen. Stat. \u00a7 143-422.2 (1999). The Employment Act does not define \u201chandicap\u201d and thus we turn to other North Carolina statutes relating to the same subject matter to determine legislative intent. McCullough v. Branch Banking & Trust Co., Inc., 136 N.C. App. 340, -S.E.2d-(2000).\nThe North Carolina Handicapped Persons Protection Act (NCHPPA), N.C. Gen. Stat. \u00a7 168A-1 et seq., defines a \u201chandicapped person\u201d as:\nany person who (i) has a physical or mental impairment which substantially limits one or more major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment.\nN.C. Gen. Stat. \u00a7 168A-3(4)(a) (1998 Cum. Supp.). Effective 1 October 1999, the NCHPPA was re-titled the North Carolina Persons with Disabilities Protection Act and amended such that \u201cperson with a disability\u201d is generally substituted for \u201chandicapped person\u201d throughout the chapter. However, since plaintiff\u2019s claim was filed before the amendment took effect, the terminology of the NCHPPA will be used.\n\u201cPhysical or mental impairment\u201d is defined in part as \u201cany physiological disorder or abnormal condition, . . .caused by. . . illness, affecting one or more of the following body systems: [. . .] respiratory. . . .\u201d N.C. Gen. Stat. \u00a7 168A-3(4)(a)(i). \u201cMajor life activities\u201d includes \u201cbreathing.\u201d N.C. Gen. Stat. \u00a7 168A-3(4)(b). \u201cAny disorder, condition or disfigurement which is temporary in nature leaving no residual impairment\u201d is specifically excluded from the meaning of \u201cphysical or mental impairment.\u201d N.C. Gen. Stat. \u00a7 168A-3 (4) (a) (iii) (C).\nMedical records of the plaintiff dated 21 November 1997 state:\n[Plaintiff] [q]uit vaccine around September [1997] when [he] lost [his] job. [He] had been welding inside \u201ctanks\u201d with fume exposure irritating to [his] nose. [He] is still welding now but outdoors and [he] says the sniffing has stopped. [His] chest feels fine and [he] feels well.\nImpression: Allergic and irritant rhinitis, now improved.\nAnother medical record dated 12 March 1997 states in part: \u201cHe has a lot of sniffing, he is irritated, but I think his infection is over....\u201d\nAffording plaintiff the required inferences, Roumillat, 331 N.C. at 63, 414 S.E.2d at 342 (all inferences drawn in favor of non-movant in deciding motion for summary judgment), plaintiff\u2019s medical records establish that his condition is temporary and therefore excluded from the statutory definition of \u201cphysical impairment.\u201d Furthermore, plaintiff is unable to establish that he was \u201chandicapped\u201d under elements (ii) or (iii) of section 168A-3(4).\nPlaintiff also argues that he is a \u201cqualified handicapped person\u201d as defined by N.C. Gen. Stat. \u00a7 168A-3(9). However, since one\u2019s status as a \u201cqualified handicapped person\u201d must be \u201cpreceded by a determination that one is a \u2018handicapped person,\u2019 \u201d plaintiff is not \u201ca qualified handicapped person\u201d either. Gravitte, 109 N.C. App. at 470, 428 S.E.2d at 257.\nAdditionally, plaintiff\u2019s concern with the defendant\u2019s alleged failure to provide reasonable accommodations to the plaintiff is misplaced. Had plaintiff filed a claim under N.C. Gen. Stat. \u00a7 168A-11, which provides a civil cause of action under the NCHPPA, such a discussion may have been appropriate. However, since plaintiff\u2019s claim is based on wrongful discharge in violation of public policy under N.C. Gen. Stat. \u00a7 143-422.2, a discussion of reasonable accommodations under N.C. Gen. Stat. \u00a7 168A-3(9) and (10) is irrelevant.\nPlaintiff also contends that he was terminated because of his respiratory condition resulting from his employment. In support of his contention, plaintiff cites his performance evaluation which states that at times his work was excellent and \u201cthe only area in which he received less than satisfactory was in attendance.\u201d Plaintiff also states that \u201chis supervisor\u201d told him he was being terminated due to his respiratory condition.\nHowever, the affidavit of plaintiffs supervisor, Gary Keegan, states in part:\n3. Mr. Simmons was terminated from his employment on September 16, 1997 for poor job performance. Mr. Simmons\u2019 continued lack of progress in being able to tackle projects, learn basic mechanical repair, refusal to work required overtime and failure to meet minimum quality standards within the department led to his dismissal. The day before his termination, Mr. Simmons left work and refused to work overtime to complete a mechanical repair which he had started.\nThe \u201cSupervisor Summary\u201d section of the plaintiff\u2019s 4 September 1997 performance evaluation states:\nAnthony\u2019s overall work and attendance record needs improvement. At times, Anthony can be an excellent employee and team player, and at other times he will fall short of acceptable standards. Increased consistency of excellent work and a better attendance record can bring Anthony into the acceptable range.\nPlaintiff received below acceptable standard scores for his quality of work, technical application, and reliability and punctuality. The evaluation noted \u201cnumerous absences\u201d and \u201cnumerous lateness [sic].\u201d Additionally, the report stated \u201cAnthony is very apprehensive about working on weekends and late during the week. These areas need work.\u201d\nPlaintiff was terminated approximately eight months after he first complained of experiencing breathing problems. Both Keegan\u2019s and Foster\u2019s affidavits state that they thought plaintiff\u2019s respiratory problems had completely resolved well before his termination.\nIn sum, defendant has established that plaintiff is unable to prove that he is handicapped and that he was terminated based upon the alleged handicap. These being essential elements of his claim, summary judgment for defendant on the claim for wrongful discharge was proper.\nPlaintiff also argues that the trial court erred in granting summary judgment to defendant on his claims for intentional and negligent infliction of emotional distress.\nIn an action for intentional infliction of emotional distress, the essential elements are \u201c(1) extreme and outrageous conduct by the defendant (2) which is intended to and does in fact cause (3) severe emotional distress.\u201d Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992) (quoting Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981)). An action for negligent infliction of emotional distress requires a showing that defendant negligently engaged in conduct, which was reasonably foreseeable to cause, and did in fact cause, plaintiff to suffer severe emotional distress. Fields v. Dery, 131 N.C. App. 525, 526, 509 S.E.2d 790, 791 (1998), disc. review denied, 350 N.C. 308,-S.E.2d-(1999). Whether or not conduct constitutes extreme and outrageous behavior is initially a question of law for the court. Wagoner v. Elkin City Schools\u2019 Bd. of Education, 113 N.C. App. 579, 586, 440 S.E.2d 119, 123, disc. review denied, 336 N.C. 615, 447 S.E.2d 414 (1994). To establish the essential element of extreme and outrageous conduct, the conduct must go beyond all possible bounds of decency and \u201cbe regarded as atrocious, and utterly intolerable in a civilized community. The liability clearly does not extend to mere insults, indignities, threats, . ...\u201d Id.\nViewing the evidence in the light most favorable to the non-moving party, the plaintiff is unable to establish a showing of extreme and outrageous conduct on the part of defendant. Furthermore, plaintiff\u2019s forecast of evidence fails to support a claim of negligent infliction of emotional distress. Accordingly, the trial court did not err in granting summary judgment to defendant on the claims of intentional and negligent infliction of emotional distress.\nAffirmed.\nChief Judge EAGLES and Judge WYNN concur.", "type": "majority", "author": "WALKER, Judge." } ], "attorneys": [ "Gray, Newell & Johnson, L.L.P., by Angela Newell Gray, for plaintiff-appellant.", "Pinto Coates Kyre & Brown, PLLC, by Martha P Brown, for defendant-appellee." ], "corrections": "", "head_matter": "ANTHONY SIMMONS, Plaintiff-Appellant v. CHEMOL CORPORATION, Defendant-Appellee\nNo. COA99-385-2\n(Filed 4 April 2000)\n1. Employer and Employee\u2014 wrongful discharge \u2014 welder\u2014 respiratory irritation\nThe trial court did not err by granting summary judgment for defendant on a wrongful discharge claim where plaintiff, a welder, alleged that his rhinitis, an inflammation of the nasal membrane, rendered him handicapped and that his discharge violated public policy. Plaintiffs medical records establish that his condition is temporary; a discussion of reasonable accommodation is irrelevant under the Equal Employment Practices Act, on which plaintiffs claim is based; plaintiff received evaluation scores below an acceptable level for quality of work, technical application, reliability, and punctuality; and both his supervisor and plant manager thought that plaintiffs respiratory problems had been resolved well before his termination.\n2. Emotional Distress\u2014 intentional and negligent \u2014 employment termination\nThe trial court did not err by granting summary judgment for defendant on claims for intentional and negligent infliction of emotional distress arising from an employment termination.\nAppeal by plaintiff from order entered 10 February 1999 and filed 11 February 1999 by Judge Russell G. Walker, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 10 January 2000.\nGray, Newell & Johnson, L.L.P., by Angela Newell Gray, for plaintiff-appellant.\nPinto Coates Kyre & Brown, PLLC, by Martha P Brown, for defendant-appellee." }, "file_name": "0319-01", "first_page_order": 351, "last_page_order": 357 }