An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-900
                     NORTH CAROLINA COURT OF APPEALS

                          Filed: 18 February 2014


VICKIE H. SOSSAMON,
     Plaintiff,

      v.                                    Vance County
                                            No. 12 CVS 506
GRANVILLE-VANCE DISTRICT HEALTH
DEPARTMENT, d/b/a GRANVILLE-VANCE
HOME HEALTH,
     Defendant.


      Appeal by Plaintiff from order entered 26 April 2013 by

Judge Henry W. Hight, Jr., in Vance County Superior Court. Heard

in the Court of Appeals 8 January 2014.


      Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner,
      for Plaintiff.

      Cranfill Sumner & Hartzog LLP, by Dan M. Hartzog, Jr., for
      Defendant.


      STEPHENS, Judge.


              Procedural History and Factual Background

      This action arises out of the discharge of Plaintiff Vickie

H. Sossamon from her employment with Defendant Granville-Vance

Home Health.       Plaintiff worked as a Licensed Physical Therapy
                                       -2-
Assistant II (“LPTA”) from approximately 4 April 1999 to 9 May

2011. The job required that Plaintiff be able to “perform tasks

of heavy lifting, extensive bending, and standing, and must be

able to assist in lifting or moving patients weighing as much as

300 pounds.”

    On 11 June 2008, Plaintiff was involved in a car accident

while leaving a patient’s home. Plaintiff received medical care

for her injuries and eventually returned to work. However, she

continued to seek treatment and had ongoing pain. As a result of

her injuries, Plaintiff filed a workers’ compensation claim on

11 June 2008. In January 2011, Plaintiff took a week off work

due to extreme pain. Plaintiff returned to work, but her pain

continued.     As a result, Plaintiff took Family and Medical Leave

Act (“FMLA”) leave. Plaintiff returned to work on 21 March 2011,

asked for assignment to lighter patients, and was told this was

not possible.

    On 25 March 2011, a doctor took Plaintiff out of work for

one month. On 28 April 2011, Plaintiff presented a doctor’s note

to her supervisor stating that Plaintiff would never be able to

return   to   work   as   an   LPTA.    The   note   stated   Plaintiff   was

“totally” disabled and Plaintiff was not to engage in “lifting,

twisting,     turning[,    or]    bending.”     Plaintiff     informed    her
                                   -3-
supervisor that she was not going to be able to return to work

on 3 May 2011 when her leave was exhausted. Plaintiff testified

she was unable to perform the job requirements of an LPTA.

    Later    on   28   April   2011,   Plaintiff     met   with   a   doctor

employed by Defendant. Plaintiff advised the doctor about “her

current situation regarding her continued neck problems and pain

as well as the fact that she had brought in documentation from

her physician that she was not able to work now nor would she

ever be able to return to work . . . .” Plaintiff also advised

the doctor that she was going to have surgery for her neck.

Plaintiff attempted to finalize some information necessary for

Defendant to complete its part of Plaintiff’s application for

disability   retirement.   Plaintiff     and   the   doctor   employed    by

Defendant also discussed

            [Plaintiff’s] feelings that even if the
            surgery    were   successful    . . .    that
            continuing    to  do   physical    activities
            required on the job . . . would jeopardize
            her health and risk . . . exacerbating her
            neuro-muscular problems in her neck and head
            area which she hopes to alleviate with the
            surgery. She stated she agreed with her
            physician that she would never be able to
            return to the activities required of her job
            with us . . . .
                                           -4-
Plaintiff did not report to work at the conclusion of her leave,

and the termination of her employment became effective on 9 May

2011.

    Plaintiff        brought     suit      on    18     May      2012    alleging     the

following causes of action: (1) violation of the Retaliatory

Employment Discrimination Act (“REDA”), N.C. Gen. Stat. § 95-240

et. seq.; (2) wrongful discharge in violation of public policy;

(3) violation of the equal protection clause of North Carolina’s

Constitution Article I, Section 19; (4) violation of the Law of

the Land Due Process Clause of North Carolina’s Constitution

Article   I,    Section   19;       (5)    violation        of   the    North     Carolina

Persons With Disabilities Protection Act (“NCPDPA”), N.C. Gen.

Stat. § 168A-1 et seq.; and (6) punitive damages. On 23 July

2012,   Defendant     filed     a    motion      to    dismiss     on     grounds    that

“Plaintiff’s [c]omplaint [did] not state a claim on which relief

[could have been] granted, as the [c]omplaint reveal[ed] that

Plaintiff      was   unable     to    perform         her   job    with      or   without

reasonable      accommodation        and    [was]       currently       on    disability

retirement.” On 25 September 2012, the motion to dismiss was

granted as to all claims except the REDA and wrongful discharge

claims. On 7 February 2013, Defendant filed a motion for summary

judgment on the remaining claims. On 8 April 2013, Defendant
                                      -5-
filed an amended motion for summary judgment. On 26 April 2013,

an order was entered granting Defendant’s amended motion for

summary judgment. Plaintiff filed notice of appeal on 22 May

2013.

                                 Discussion

    On appeal, Plaintiff argues that the trial court committed

reversible   error   in    granting    Defendant’s       motion   for   summary

judgment when there were genuine issues of material fact for

determination   by   a    jury   of   her   REDA   and   wrongful   discharge

claims.   We affirm.

I. REDA

    Plaintiff argues that the trial court committed reversible

error by granting Defendant’s motion for summary judgment on her

REDA claim. We disagree.

    “Our standard of review of an appeal from summary judgment

is de novo; such judgment is appropriate only when the record

shows 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.” In

re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008)

(citation and internal quotation marks omitted; italics added).

“The evidence must be viewed in the light most favorable to the
                                          -6-
non-moving party.” Wiley v. United Parcel Serv., Inc., 164 N.C.

App. 183, 186, 594 S.E.2d 809, 811 (2004) (citation omitted).

       Plaintiff argues that “it is clear that [Plaintiff] was

terminated (a) due to her workers’ compensation claim, (b) the

medical treatment for her neck injury, (c) the work restrictions

that   the    treating    physicians      placed   on   her   due    to    her   neck

injury,      (d)   the   refusal   of    [D]efendant    to    accommodate        those

restrictions, and (e) the refusal to allow her to work while

awaiting surgery.” However, of the possibilities suggested by

Plaintiff, only (a), termination due to her filing of a workers’

compensation claim, could be a violation of REDA.

       Section     95-241(a)   of       our   General   Statutes      provides      in

pertinent part that

              [n]o person shall discriminate or take any
              retaliatory   action against   an  employee
              because the employee in good faith does or
              threatens to . . .

              [f]ile a claim or complaint, initiate any
              inquiry,      investigation,     inspection,
              proceeding[,] or other action, or testify or
              provide information to any person with
              respect to . . .

              . . .

              Chapter 97 of the General             Statutes        [the
              Workers’ Compensation Act].

N.C. Gen. Stat. § 95-241(a) (2013).
                                    -7-
            The statute [which REDA replaced did] not
            prohibit all discharges of employees who are
            involved in a workers’ compensation claim[;]
            it only prohibits those discharges made
            because    the    employee    exercises    his
            compensation    rights.    Furthermore,    our
            appellate courts indicated in applying the
            former provision that a plaintiff fails to
            make out a case of retaliatory action where
            there   is   no  close   temporal   connection
            between the filing of the claim and the
            alleged retaliatory act.

Salter v. E & J Healthcare, Inc., 155 N.C. App. 685, 691, 575

S.E.2d   46,   50   (2003)   (citation    and   internal   quotation   marks

omitted).

            [REDA]     prohibits    discrimination     or
            retaliation against an employee for filing a
            worker[s’] compensation claim. In order to
            state a claim under REDA, a plaintiff must
            show (1) that he exercised his rights as
            listed under N.C. Gen. Stat. § 95–241(a),
            (2) that he suffered an adverse employment
            action, and (3) that the alleged retaliatory
            action   was   taken because   the   employee
            exercised his rights under N.C. Gen. Stat. §
            95–241(a). An adverse action includes the
            discharge, suspension, demotion, retaliatory
            relocation of an employee, or other adverse
            employment action taken against an employee
            in the terms, conditions, privileges, and
            benefits of employment. If [the] plaintiff
            presents a prima facie case of retaliatory
            discrimination, then the burden shifts to
            the defendant to show that he would have
            taken the same unfavorable action in the
            absence of the protected activity of the
            employee. Although evidence of retaliation
            in a case such as this one may often be
            completely circumstantial, the causal nexus
            between protected activity and retaliatory
                                        -8-
            discharge   must       be    something      more    than
            speculation.

Wiley, 164 N.C. App. at 186-87, 594 S.E.2d at 811 (citations and

internal quotation marks omitted; italics added).

    Here, there is no dispute that Plaintiff “exercised h[er]

rights” to file a workers’ compensation claim and “that [s]he

suffered an adverse employment action” when she was terminated

from employment. Id. at 186, 594 S.E.2d at 811. Thus, the only

issue     left    in    considering     whether   Plaintiff       sufficiently

forecast a REDA claim is whether “the alleged retaliatory action

was taken because . . . [Plaintiff] exercised [her] rights” to

file a workers’ compensation claim. Id. (emphasis added).

    Plaintiff          admitted   at    her   deposition       that    she   was

terminated because she could not fulfill her job description. In

her complaint, Plaintiff alleged she has “significant pain in

her neck and shoulders and is unable to lift, twist, turn, and

bend.” She also alleged that “[h]er termination was directly

related    to    her   work[-]related    injury   and    the   resulting     work

restrictions.”

            A party is bound by h[er] pleadings and,
            unless withdrawn, amended, or otherwise
            altered, the allegations contained in all
            pleadings   ordinarily   are conclusive   as
            against    the    pleader.   [Sh]e    cannot
            subsequently take a position contradictory
            to h[er] pleadings. An admission in a
                                   -9-
           pleading has the same effect as a jury
           finding[] and is conclusive upon the parties
           and the trial judge.

Bradley v. Bradley, 206 N.C. App. 249, 255-56, 697 S.E.2d 422,

427 (2010) (citations and internal quotation marks omitted).

      Further, in other actions, Plaintiff has taken the position

that she was terminated because she was unable to perform her

job requirements. First, on her Department of Labor complaint

form, Plaintiff stated that she was “terminated due to inability

to   perform   [the]   job   description.”   Plaintiff   confirmed   this

statement was accurate in her deposition for this case:

           [Defense   Counsel]:  And   I’ll  draw  your
           attention to the second page[]: “Why do you
           think your employer took this employment
           action against you?” Your answer was, “I did
           file a worker[s’] compensation claim[;]
           however[, I was] terminated due to inability
           to perform [the] job description, which was
           to be able to lift up to 300 pounds.”

           [Plaintiff]: That’s correct.

           [Defense counsel]: So that’s your reason
           that you’ve given to the Department of Labor
           as to why you were terminated, correct?

           [Plaintiff]: Yes.

           [Defense Counsel]: And was that an accurate
           reason?

           [Plaintiff]: Yes.
                                           -10-
Second,      in    response   to     an     interrogatory       in    her     workers’

compensation case, Plaintiff stated that she was “[t]erminated

on May 9, 2011 due to not being able to                      perform [her] job

description.” Finally, in a deposition related to a separate

lawsuit for the underlying car accident, Plaintiff once again

stated that she was terminated due to her inability to perform

the tasks listed in the job description. Therefore, so far as

Plaintiff’s REDA action is concerned, her consistent position

and   judicial      admissions      that    she   was   terminated      due    to    her

inability     to    perform   the    functions       required    by    the    job    are

conclusive.

      Moreover, Plaintiff’s contention that she was not offered

an accommodation does not save her REDA claim. A failure to

return an employee to work in a position other than her own has

never been held to be violative of REDA. See Wiley, 164 N.C.

App. at 187, 594 S.E.2d at 812 (“[P]laintiff has not cited any

authority suggesting that a failure to return an employee to

work in a position other than his own violates . . . REDA[.]”).

As    this    Court    has    noted,        “[u]nlike     the    Americans          with

Disabilities Act, . . . REDA does not require an employer to

make an accommodation for an employee. If no position currently

exists    that     [the]   plaintiff         could   perform,        necessarily      no
                                      -11-
adverse employment action has occurred.” Id. Thus, Defendant’s

actions were not “retaliatory actions” within the meaning of

REDA, and Plaintiff has failed to forecast sufficient facts to

support a REDA claim.

    Plaintiff’s own testimony, in this case and in previous

actions, indicates that the reason for her termination was her

inability to fulfill her job description. Plaintiff’s claim that

she was discharged because she exercised her right to file a

workers’    compensation      claim        is    simply      unsupported     by    the

evidence and contradicted by her testimony in this case and

others. Since Plaintiff has not met her burden of showing a

prima   facie   case,    we    are    not       required      to   address   whether

Defendant would have terminated Plaintiff’s employment in the

absence of Plaintiff’s workers’ compensation claim. Taken in the

light most favorable to Plaintiff, there is no genuine issue of

material fact as to whether Defendant took retaliatory action

against    Plaintiff    because      she    filed      a    workers’    compensation

claim. Plaintiff’s argument is overruled.

II. Wrongful Discharge

    Next, Plaintiff argues the trial court erred in granting

summary    judgment     on    her    claim       for       wrongful    discharge    in

violation of public policy. Again, we disagree.
                                         -12-
      “In North Carolina, . . . absent an employment contract for

a   definite   period       of   time,    both    employer    and   employee   are

generally free to terminate their association at any time and

without reason.” Gravitte v. Mitsubishi Semiconductor Am., 109

N.C. App. 466, 472, 428 S.E.2d 254, 258                     (citation omitted),

disc. review denied, 334 N.C. 163, 432 S.E.2d 360 (1993).

      The discharge of an at-will employee generally does not

support an action for wrongful discharge in this State. However,

as argued by Plaintiff, exceptions to this general rule have

been recognized by our appellate courts, including a prohibition

against termination for a purpose in contravention of public

policy. Plaintiff cites some of the leading cases that                         have

recognized     this    exception.         Kurtzman    v.     Applied   Analytical

Indus., Inc., 347 N.C. 329, 493 S.E.2d 420 (1997) (holding it a

violation of public policy for nurse who alleged her employer

pressured her not to testify honestly in a malpractice lawsuit

and   discharged      her    after       she    testified    honestly),   reh’ing

denied, 347 N.C. 586, 502 S.E.2d 594 (1998); Amos v. Oakdale

Knitting Co., 331 N.C. 348, 416 S.E.2d 166 (1992) (holding it a

violation of public policy for employer to discharge employee

for refusing to work for less than statutory minimum wage);

Deerman v. Beverly California Corp., 135 N.C. App. 1, 518 S.E.2d
                                        -13-
804 (1999) (holding it a violation of public policy where a

nurse    was   allegedly     fired    for   reporting    violations       of   state

regulations by employer), disc. review denied, 351 N.C. 353, 542

S.E.2d 208 (2000); Roberts v. First-Citizens Bank & Trust Co.,

124 N.C. App. 713, 478 S.E.2d 809 (1996) (holding it a violation

of public policy to discharge a commercial loan officer for

refusal to cash collateral without giving notice to debtor as

required by statute); Vereen v. Holden, 121 N.C. App. 779, 468

S.E.2d 471 (1996) (holding discharge of employee for political

affiliation     violates     public     policy);   Lenzer     v.    Flaherty,    106

N.C. App. 496, 418 S.E.2d 276 (1992) (holding it a violation of

public    policy   when      hospital    worker    discharged       for   reporting

patient abuse); Williams v. Hillhaven Corp., 91 N.C. App. 35,

370 S.E.2d 423 (1988) (reversing dismissal of the plaintiff’s

complaint      where   the    plaintiff     alleged     she   was    fired     after

testifying truthfully against her employer). In each of these

cases, 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 policy. 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.
                                        -14-
    In her complaint, Plaintiff identifies the public policy

supporting    her    wrongful       discharge     claim    as     the    disability

discrimination      prong    of   the   North     Carolina      Equal    Employment

Practices    Act    (“the    Employment     Act”)    and    its    public    policy

statement set forth in N.C. Gen. Stat. § 143-422.1 et seq. “[A]t

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.” Amos, 331 N.C. at 353,

416 S.E.2d at 169. The            Employment Act         provides in pertinent

part:

            It 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 . . . .

N.C. Gen. Stat. § 143-422.2 (2013). The Employment Act does not

define “handicap,” 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, 347, 524 S.E.2d 569, 574 (2000).

    The NCPDPA defines a “[p]erson with a disability” as

            any 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.
                                         -15-


N.C. Gen. Stat. § 168A-3(7a) (2013).

       When a “qualified person with a disability” requests that

an    accommodation    be    made      for    her    disabling      condition,         her

employer    must      investigate        whether          there    are       reasonable

accommodations      that    can     be   made       and    must    make      reasonable

accommodations for the person’s condition. N.C. Gen. Stat. §

168A-4 (2013). Assuming without deciding that Plaintiff is a

“person with a disability,” as that term is defined in section

168A-3(7a),    we   conclude      that       Plaintiff      is    not   a    “qualified

person with a disability.” (Emphasis added). That term means:

            With regard to employment, a person with a
            disability who can satisfactorily perform
            the duties of the job in question, with or
            without    reasonable    accommodation,    (i)
            provided that the person with a disability
            shall   not    be   held   to   standards   of
            performance different from other employees
            similarly    employed,   and   (ii)    further
            provided that the disabling condition does
            not create an unreasonable risk to the
            safety or health of the person with a
            disability, other employees, the employer’s
            customer, or the public . . . .

N.C. Gen. Stat. § 168A-3(9)(a).

       The evidence demonstrates that Plaintiff could not perform

the   duties   of   the     job   of     an   LPTA    as    defined         in   the   job

description. Furthermore, given the fact that the job of LPTA

entails performing CPR on Defendant’s patients, we believe that
                                   -16-
Plaintiff’s condition, which renders her unable to perform CPR

due to her restrictions on twisting and bending, could create an

unreasonable    risk   to   herself     and    Defendant’s     patients.       As

Plaintiff was not a “qualified person with a disability,” we

conclude that Defendant was under no duty to make accommodations

for Plaintiff’s physical condition. See, e.g., White v. N.C.

Dep’t of Corr., 117 N.C. App. 521, 527, 451 S.E.2d 876, 881

(1995) (“The evidence demonstrates that the petitioner could not

perform the duties of the job of correctional officer as defined

in the job description. Furthermore, given the fact that the job

of correctional officer entails the supervision of inmates, we

believe that petitioner’s condition, which renders him unable to

pursue    foot-fleeing      inmates     or      physically     subdue      them

effectively, could create an unreasonable risk to himself, his

fellow correctional officers, other inmates[,] and the public at

large.   As   petitioner    was   not   a     ‘qualified     [person    with    a

disability],’ we conclude that respondent was under no duty to

make accommodations for petitioner’s physical condition.”).

    Furthermore, Plaintiff’s contention that Defendant failed

to provide reasonable accommodations is not relevant in a claim

for wrongful discharge in violation of public policy. Our Court

has stated:
                                    -17-
            [The]    plaintiff’s    concern    with    the
            defendant’s   alleged   failure   to   provide
            reasonable accommodations to the plaintiff
            is misplaced. Had [the] plaintiff filed a
            claim under N.C. Gen. Stat. § 168A-11, which
            provides a civil cause of action under the
            [NCPDPA], such a discussion may have been
            appropriate.     However,     since      [the]
            plaintiff’s claim is based on wrongful
            discharge in violation of public policy
            under N.C. Gen. Stat. § 143-422.2, a
            discussion   of   reasonable    accommodations
            under N.C. Gen. Stat. § 168A-3(9) and (10)
            is irrelevant.

Simmons v. Chemol Corp., 137 N.C. App. 319, 323, 528 S.E.2d 368,

371 (2000). Although Plaintiff did file a claim under NCPDPA,

this claim was dismissed at the Rule 12(b)(6) stage and that

ruling has not been appealed. Therefore, Plaintiff’s contention

that she was denied reasonable accommodations is not relevant to

her wrongful discharge claim.

    Finally, Plaintiff argues that Defendant violated public

policy   because   “[D]efendant’s    own   policy    manual   provides     the

procedure    and   policy   that   [D]efendant      must   follow   when   an

employee requires or requests a reasonable accommodation.” This

Court has stated:

            We are . . . aware that there are strong
            equitable   and    social   policy   reasons
            militating against allowing employers to
            promulgate for their employees potentially
            misleading personnel manuals while reserving
            the right to deviate from them at their own
            caprice.
                                     -18-
          Nevertheless, the law of North Carolina is
          clear    that     unilaterally   promulgated
          employment manuals or policies do not become
          part of the employment contract unless
          expressly included in it.

Walker v. Westinghouse Elec. Corp., 77 N.C. App. 253, 259, 335

S.E.2d   79,    83-84     (1985)   (citations     omitted),    disc.    review

denied, 315 N.C. 597, 341 S.E.2d 39 (1986).

    There is no evidence in the record to suggest that the

policy manual became part of Plaintiff’s employment contract.

Therefore,     on   the   record   before   us,   we   hold   that   Plaintiff

failed to present a sufficient forecast of evidence to survive

Defendant’s motion for summary judgment on this issue.

    AFFIRMED.

    Judges STEELMAN and DAVIS concur.

    Report per Rule 30(e).
