                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 04-1342



L. J. PETTYJOHN,

                                              Plaintiff - Appellant,

           versus


ESTES EXPRESS LINES,

                                              Defendant - Appellee.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham.   Russell A. Eliason,
Magistrate Judge. (CA-02-476-1)


Argued:   November 30, 2004                 Decided:   March 2, 2005


Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Romallus Olga Murphy, Sr., Greensboro, North Carolina, for
Appellant. David Lee Terry, POYNER & SPRUILL, L.L.P., Charlotte,
North Carolina, for Appellee.    ON BRIEF: Parmele Price Calame,
POYNER & SPRUILL, L.L.P., Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

      This case concerns the termination of L. J. Pettyjohn’s

(“Pettyjohn”) employment with Estes Express Lines (“defendant” or

“Estes”), a trucking firm. Pettyjohn originally filed suit against

defendant claiming that defendant’s actions constituted unlawful

discrimination based on race in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e, et seq. and discrimination

in   violation   of   42   U.S.C.   §       1981   (“discrimination     suit”).

Additionally, Pettyjohn contended that the resignation provision

included in his workers’ compensation mediation agreement is barred

by   North    Carolina’s   workers’         compensation   rules,    and   that

defendant’s attempt to secure his resignation was against public

policy and without consideration.              The district court granted

defendant’s motion for summary judgment, finding that Pettyjohn’s

claims were without merit.      We affirm the district court.



                                      I.

     Estes employed Pettyjohn for eight years, during which time he

was assigned to several different positions and his job performance

was generally satisfactory.      At the time of his injury, Pettyjohn

was working as a Pickup and Delivery (“P&D”) driver.                P&D drivers

drive local routes to pick up and deliver freight at various

commercial locations.      Pettyjohn’s job required that he be able to

lift a minimum of 100 pounds and that he be able to sit for 30-40


                                        2
minutes    at   a   time    while   driving.       These    requirements       were

apparently not a problem before Pettyjohn slipped and fell on ice

while on a loading dock, thereby injuring his head and back.

Subsequently, he found that he could not sit, drive, or lift as

needed in his P&D driver position. Pettyjohn’s physician initially

imposed a restriction of no lifting, which remained in effect for

four months.        After that period, his physician allowed him to

occasionally lift up to 55 pounds with no repetitive squatting,

crouching, or kneeling. During his mandated physical restrictions,

Pettyjohn was assigned to light duty work as a guard.

     Approximately ten months after his injury, Pettyjohn’s lifting

restrictions were eased again, allowing him to lift up to 75

pounds.     Subsequently, Estes had Pettyjohn alternate between the

guard position and a somewhat better paying maintenance job.

Eventually      Pettyjohn    was    transferred     to     the    higher     paying

maintenance job full-time.          However, that position still did not

pay as much as his previous P&D position.1

     Over a year after his injury, Pettyjohn and his attorney, Ken

Johnson (“Johnson”), attended a mediation session in an attempt to

settle    his   workers’    compensation     claim.        At    that   mediation,

Pettyjohn    signed,   on    the    advice   of   his    attorney,      a   document



     1
       Pettyjohn’s salary as a P&D driver was $17.35 an hour.
During this period and throughout the remainder of his employment
with Estes, Pettyjohn received compensation for his medical bills,
his medical treatment, his lost wages, and his wage differentials.

                                        3
entitled “Memorandum of Agreement of Mediation Conference” (the

“Mediation Agreement”).    This document stated that the matter had

been settled by consent, that defendant’s attorney was to draft an

agreement, and that:

     The terms of this Agreement are as follows: $45,500 in a
     lump sum in IC #016453, payment of the entire med fee and
     waiver of lien in N.C. Claim DA 7/18/99 and D’s will
     advance $5,000 on execution of clincher on both claims +
     resignation by employee-plaintiff.

J.A. 175.   There is no dispute that Pettyjohn read and voluntarily

signed   the   agreement   with   an    attorney     representing   him.

Pettyjohn’s attorney informed his client that he had a certain

number of days to revoke the Mediation Agreement.

     Later that same day, Pettyjohn called the guard tower and told

the supervisor on duty that “it was over,” to which the supervisor

initially responded that he should “come on in to work.”         However,

once the supervisor was informed of the terms of the settlement, by

Estes’s HR representative, he called Pettyjohn back and said there

was no longer any need for him to come back.       Id. at 47.   Pettyjohn

agreed and said “okay.”    Id. at 48.    Pettyjohn never returned to

work for defendant.

     Six weeks after the execution of the Mediation Agreement, the

attorney representing Pettyjohn in his discrimination suit against

Estes, R. Murphy (“Murphy”), contacted Johnson in an attempt to

change the language in the workers’ compensation “Agreement for

Final Compromised Settlement and Release,” also known as the


                                  4
“Clincher Agreement,” which was to be filed with the North Carolina

Industrial Commission (“N.C.I.C.”).                   Murphy sought to have the

language    concerning   Pettyjohn’s            resignation         struck    from   that

document.      According      to    both       parties’      counsel    the    Clincher

Agreement that was actually submitted to the N.C.I.C. did not

include the language regarding Pettyjohn’s resignation.

       Subsequently, defendant filed a motion for summary judgment in

Pettyjohn’s discrimination suit.                In response and for the first

time, Pettyjohn alleged: (1) that defendant’s attempt to secure the

resignation was against public policy; (2) his resignation was

secured    without   consideration;            and    (3)    that    the     resignation

provision in his workers’ compensation agreement violated North

Carolina’s workers’ compensation rules.                 The district court found

that   Pettyjohn     failed    to    make       a    prima    facie    case     of    race

discrimination under Title VII or § 1981 and that Pettyjohn’s new

claims alleged in his response were not properly raised, however,

the district court found that these claims warranted dismissal on

the merits because they were unsupported by the evidence.                            Thus,

the district court granted defendants’ motion for summary judgment.

Pettyjohn timely filed this appeal.



                                       II.

       We review a district court’s summary judgment ruling de novo,

viewing the evidence in the light most favorable to the non-moving


                                           5
party.     Goldstein v. The Chestnut Ridge Volunteer Fire Co., 218

F.3d 337, 340 (4th Cir. 2000); Binakonsky v. Ford Motor Co., 133

F.3d 281, 284-85 (4th Cir. 1998). Summary judgment is appropriate

if “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 the

moving party is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56.



                                  III.

     Pettyjohn only appeals the district court’s dismissal of his

claim that securing a resignation in connection with a workers’

compensation settlement violated of North Carolina’s public policy,

that his resignation was without consideration, and that his

mediation agreement violates North Carolina’s workers’ compensation

rules.2    We will address these issues in turn.      The district court

noted that these claims were not properly raised.            Nevertheless,

the district court reviewed and dismissed these claims on the

merits.

     The    Federal   Rules   “allow   liberal   amendment   of   pleadings

throughout the progress of a case.”        Elmore v. Corcoran, 913 F.2d

170, 172 (4th Cir. 1990) (citing Brandon v. Holt, 469 U.S. 464, 471



     2
      Pettyjohn does not appeal the district court’s dismissal of
his race discrimination claims under Title VII and § 1981.

                                       6
(1985) (holding that petitioner is allowed to amend pleadings

before Supreme Court)). A party’s failure to amend will not affect

a final judgment if the issues resolved were “tried by express or

implied consent of the parties.”       Elmore, 913 F.2d at 172 (quoting

Fed. R. Civ. P. 15(b)).      Even without a formal amendment, “a

district court may amend the pleadings merely by entering findings

on the unpleaded issues.”   Id. (quoting Galindo v. Stoody Co., 793

F.2d 1502, 1513 n.8 (9th Cir. 1986)).

      In this case, there is no indication that defendant expressly

or impliedly consented to try this issue, except for the fact that

they did not explicitly object.    Nevertheless, the district court

did enter a finding on the unpleaded issue.      While the record would

have been clearer had Pettyjohn formally filed a motion to amend

and the district court had formally entered an order granting that

motion, they essentially did so in substance, if not in form.

Thus, we find that Pettyjohn’s appealed claims are properly before

us.   See People for the Ethical Treatment of Animals v. Doughney,

263 F.3d 359, 367 (4th Cir. 2001) (finding that plaintiff’s summary

judgment briefs essentially moved the district court for leave to

amend its complaint and court appears to have granted that motion

via its summary judgment ruling).

      First Pettyjohn argues in his appeal, that the “requirement to

resign as a part of a Workers’ Compensation ‘Clincher Agreement’ is

in violation of North Carolina’s Public Policy.”       Appellant’s Br.


                                   7
at 2.    North Carolina adheres to the at-will employment doctrine

which states that “in the absence of a contractual agreement . . .

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.”            Tarrant v.

Freeway Foods of Greensboro, 593 S.E.2d 808, 811 (N.C. Ct. App.

2004).   However, the Supreme Court of North Carolina held that an

employer can not terminate an employee for pursuing her workers'

compensation rights.    Id.    The court held in Tarrant that:

     While there is not a specific list of what actions
     constitute a violation of public policy, the exception
     has applied where the employee is fired (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.

          This Court has considered whether a claim of
     wrongful discharge based upon North Carolina public
     policy of not punishing employees for exercising their
     statutory rights under the Workers’ Compensation Act was
     tenable[.] . . . we concluded that such a cause of action
     probably does exist . . . . The next time this Court
     considered the issue we stated unequivocally [that a]
     plaintiff may state a claim for wrongful discharge in
     violation of public policy where he or she alleges the
     dismissal resulted from an assertion of rights under the
     Workers’ Compensation Act.

593 S.E.2d at 811 (internal citations omitted) (emphasis added).

     In Tarrant, six years after the plaintiff filed a workers'

compensation claim, the employer rehired her.         Id. at 809-10.    Two

days later, she was fired.      Id. at 810.     The plaintiff provided

evidence   that   she   was   fired   because   she   filed   a    workers’


                                      8
compensation claim.          For example, when she was leaving the store

after being rehired, she claimed that the district manager asked

her, “Are you going to behave?          You’re not going to fall again, are

you?”.      Id. at 812.     Also, on the day she was terminated, a manager

told her that her job performance was fine, but the company did not

want her around because she cost them a lot of money.                           Id.

Although there was no close temporal connection between the filing

of    the   claim    and    the   alleged       retaliatory   act,   the   employer

essentially admitted that it terminated the plaintiff for pursuing

her workers’ compensation rights.                Id.

       Based on the court’s reasoning in Tarrant and the facts in

this case, Pettyjohn must show that he was either: (1) “fired” or

constructively discharged because he filed a workers’ compensation

claim; or (2) forced to resign to settle his workers’ compensation

claim -- to support his assertion that Estes actions violated North

Carolina’s public policy.           See Salter v. E & J Healthcare, Inc.,

575 S.E.2d 46, 51 (N.C. Ct. App. 2003) (finding that the employee

has   the    burden    of   pleading   and       proving   that   the   employee's

dismissal occurred for a reason that violates public policy and

that there was a causal connection between the activity and the

dismissal).3        In the case at bar, there is no causal or temporal


       3
       To establish a prima facie case of retaliation, it must be
shown that (1) the plaintiff engaged in a protected activity, (2)
the employer took adverse action, and (3) there existed a causal
connection between the protected activity and the adverse action.”
Id. at 51.

                                            9
connection between Pettyjohn’s protected activity of filing his

workers’ compensation claim and his alleged forced resignation,

i.e. constructive discharge.4         In fact, Pettyjohn testified in his

deposition that his termination was solely because of his race.

     Further, the topic of resignation did not surface until after

the parties entered into a mediation to settle Pettyjohn’s workers’

compensation claim.    Johnson said that the mediation was an arms-

length negotiation, in the presence of a mediator and attorney’s

representing both parties.       Johnson also testified that defendant

initially offered to settle Pettyjohn’s workers’ compensation claim

for $7,500.    The negotiations elevated the amount to approximately

$30,000, at which point the issue of a general release was raised

-- including Pettyjohn’s discrimination claims or his resignation.

Johnson testified that he informed Pettyjohn that “resignation[s]

in clincher agreements in the trucking industry especially [are]

standard.” J.A. 225. When asked if “resignation of employment was

part of what you all [Pettyjohn and Johnson] settled for at the

mediation?”     Id. at 227.      Johnson answered, “Yes.”       Id.    Thus,

Pettyjohn offers no evidence that at the time of the mediation

defendant     “required”   him   to    resign   to   settle   his   workers’

compensation claim or was unwilling to settle his claim unless he




     4
      For the sake of argument we will treat Pettyjohn’s assertion
that he was forced to resign as a claim of constructive discharge.

                                       10
resigned.      Therefore,    plaintiff     fails   to    show    that    he   was

constructively    or    otherwise    discharged    or   that    his   voluntary

resignation was a wrongful discharge against North Carolina’s

public policy. Gravitte v. Mitsubishi Semiconductor Am., Inc., 428

S.E.2d 254, 258 (“To proceed under [the public policy] exception,

plaintiff must allege facts which indicate that she was in fact

‘discharged.’ If plaintiff voluntarily resigned defendant’s employ,

she cannot bring a claim for wrongful discharge.”).

     Pettyjohn’s second claim, that he was not compensated for his

resignation, fails because he was actually compensated for his

resignation.      The    Mediation    Agreement    calls   for     Pettyjohn’s

resignation and settlement of his workers’ compensation claim in

exchange for $45,500.        Estes accepted Pettyjohn’s resignation,

proceeded to execute the Clincher Agreement, and did in fact pay

Pettyjohn $45,500.      Moreover, neither Pettyjohn nor anyone acting

on his behalf ever revoked the Mediation Agreement which included

payment for his resignation. Therefore, Pettyjohn’s claim that his

resignation was without compensation is without merit.

     Pettyjohn’s third claim, that the exclusion of the resignation

language in the Clincher Agreement violates N.C.I.C. Rule 502,

fails because Rule 502 does not prohibit resignations as part of

workers’    compensation    settlements.      North     Carolina      Industrial

Commission Rule 502 provides in relevant part:




                                      11
       Compromise settlement agreements.
       (a) All compromise settlement agreements must be
       submitted to the Industrial Commission for approval. Only
       those agreements deemed fair and just and in the best
       interest of all parties will be approved.
       (b) No compromise agreement will be approved unless it
       contains the following language or its equivalent:

       . . . .

       (3) That the employee knowingly and intentionally waives
       the right to further benefits under the Workers’
       Compensation Act for the injury which is the subject of
       this agreement.

       . . . .

       (5) That no rights other than those arising under the
       provisions of the Workers’ Compensation Act are
       compromised or released.

4 N.C.A.C. 10A.0502 (emphasis added).

       Rule 502 refers to the narrow jurisdiction of the Industrial

Commission, prohibiting parties from including issues not relevant

to an employee’s workers’ compensation claim.               Pettyjohn does not

offer the court any evidence or case law to support the assertion

that    defendant     acted   contrary       to   North    Carolina’s   workers’

compensation rules.       Pettyjohn does not substantiate his implied

claim    that     resigning   was   a    “right”      he    was   releasing   or

compromising, thus prohibited from being included in the Clincher

Agreement.       The language of the rule only prohibits the releasing

of rights.       That does not prohibit the employee or the employer

from using the employees’ position as a bargaining chip or leverage




                                        12
during settlement negotiations.5             Although the parties chose to

omit the resignation language in the document submitted to the

N.C.I.C,    that    does   not     violate     North   Carolina’s   workers’

compensation rules.6



                                       IV.

     In    sum,    Pettyjohn     has   not    demonstrated   that   defendant

constructively discharged or fired him because he filed a workers’

compensation claim, that defendant required him to resign in order

to settle his workers’ compensation claim, in violation of North

Carolina’s public policy, that he was not compensated for his

resignation, or that defendant violated North Carolina’s workers’

compensation rules. Based on the foregoing, we affirm the district

court.



                                                                     AFFIRMED




     5
       It would, however, prohibit the employer or employee from
compromising or releasing an employees’ EEOC claims, for example.
As we noted supra, Pettyjohn’s attorney, Johnson, testified and
plaintiff does not dispute that it was standard for resignations to
be included in Clincher Agreements in the trucking industry.
     6
       The record does not demonstrate that either of the parties
believed that Pettyjohn’s resignation was no longer in effect due
to the deletion of the resignation language from the document
submitted to the N.C.I.C. Thus, the omission neither revoked nor
rescinded Pettyjohn’s resignation, which occurred immediately upon
the signing of the Mediation Agreement.

                                       13
