Bombria v. Lowes' Home Ctrs., Inc.

An unpublished opinion of the North Carolina Court of Appeals does not constitute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
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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
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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
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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
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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
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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,
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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.
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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
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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
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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).