An unpublished opinion of the North Carolina Court of Appeals does not constitute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