Jones v. Duke Energy Corp.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
OCCIE L. JONES, 
Plaintiff-Appellant,
v.  No. 02-1024
DUKE ENERGY CORPORATION,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
H. Brent McKnight, Magistrate Judge.
(CA-00-641-3-MCK)
Submitted: July 16, 2002
Decided: August 9, 2002
Before NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Roger W. Rizk, ROGER W. RIZK, P.A., Charlotte, North Carolina,
for Appellant. Jill Stricklin Cox, John James Doyle, CONSTANGY,
BROOKS & SMITH, L.L.C., Winston-Salem, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 JONES v. DUKE ENERGY CORP.
OPINION
PER CURIAM:
Occie L. Jones appeals the district court’s adverse grant of sum-
mary judgment in her civil action against her former employer, Duke
Energy Corporation (Duke), in which she alleged that Duke violated
the North Carolina Equal Employment Practices Act, N.C. Gen. Stat.
§ 143-422.2 (1999) (NCEEPA) by engaging in retaliation, subjecting
her to a hostile work environment and general disparate treatment
because of her race, and constructively discharging her. She further
alleged that Duke violated the Employee Retirement Income Security
Act of 1974, 29 U.S.C.A. §§ 1001-1461 (West 1999 & Supp. 2002)
(ERISA), by failing to furnish her with documents relating to other
employees’ monthly contribution amounts under medical insurance
plans offered by Duke. For the reasons set forth below, we affirm the
district court’s grant of summary judgment in favor of Duke.
The provisions of the NCEEPA do not explicitly provide a private
cause of action for violation of the stated public policy, nor have
North Carolina courts recognized such a private cause of action aris-
ing independently out of the statute. Smith v. First Union Nat’l Bank,
202 F.3d 234, 247 (4th Cir. 2000). While Jones recognizes this to be
the case, she claims that the narrow exception to the employment-at-
will doctrine for wrongful discharge carved out by North Carolina
courts demonstrates a shifting of the tide toward private action rights
under the statute, and she argues there is no "rational distinction"
between claims for constructive discharge and wrongful discharge
claims. We disagree. As the district court found, North Carolina
courts and federal courts applying North Carolina law have made that
very distinction, by finding repeatedly that no private cause of action
exists for retaliation, hostile work environment, disparate treatment,
or constructive discharge in violation of public policy.1 We decline to
expand the provisions of the NCEEPA, as Jones requests.
1
See, e.g., Smith, 202 F.3d at 247 (no cause of action for sexual harass-
ment under the NCEEPA); McFadden v. Trend Community Health
Servs., 114 F. Supp. 2d 427, 2000 U.S. Dist. LEXIS 19340, *6-7
(W.D.N.C. 2000) (constructive discharge); DeWitt v. Mecklenburg
County, 73 F. Supp. 2d 589, 604-05 (W.D.N.C. 1999) (general disparate
treatment, hostile work environment, retaliation).
JONES v. DUKE ENERGY CORP. 3
Jones also asserts that the district court erred in finding that Duke
did not violate ERISA’s disclosure provisions2 by refusing to send her
a comparison "cost scale" showing the required contribution amounts
payable by other individuals for retiree medical coverage. Specifi-
cally, Jones requested Duke to produce "scenarios of Retirement
Medical Insurance monthly premiums" for people eligible in all
groups. We find the district court properly rejected Jones’ ERISA
claim based upon the undisputed fact that no integrated "cost scale"
or "comparison chart" showing monthly contribution amounts for all
groups of participants by age and eligible service at retirement ever
existed during the time period at issue. Duke cannot be in violation
of § 1024(b)(4), for its failure to disclose a document it did not have.
Accordingly, we find that summary judgment was proper. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
2
Under ERISA, a plan administrator’s duty to disclose plan documents
to participants is governed by Section 1024(b)(4), which provides, in per-
tinent part:
The administrator shall, upon written request of any participant
or beneficiary, furnish a copy of the latest updated summary plan
description, and the latest annual report, any terminal report, the
bargaining agreement, trust agreement, contract, or other instru-
ments under which the plan is established or operated . . . .
29 U.S.C.A. § 1024(b)(4) (West Supp. 2002). In defining the phrase "in-
struments under which the plan is established or operated," we have held
that, "The clear and unambiguous meaning of this statutory language
encompasses only formal or legal documents under which a plan is set
up or managed." Faircloth v. Lundy Packing Co., 91 F.3d 648, 654 (4th
Cir. 1996).