Amicus Curiae Brief — English v. General Elec. Co.

| FILED

No. 89-152 wap oD 18

IN THE Rien

Supreme Court of the Gnited States

October Term, 1989

VERA ENGLISH,

Petitioner,

GENERAL ELECTRIC COMPANY,

Respondent.

OW WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF THE PLAINTIFF EMPLOYMENT

LAWYERS ASSOCIATION AS AMICUS CURIAE

J. Michael McGuinness * Paul Tobias

Lisa A. Parlagreco Of Counsel

Counsel for Amicus 911 Mercantile Library Bldg.

P.O. Box 5939, JFK Station 414 Walnut Street

Boston, MA 02114 Cincinnati, OH 45202

(617) 742-19H (513) 241-8137

* Counsel »f Record

Appoliate Printing Services * Heritage Building * Suite 908 * Richmond, VA 23219 * (800) 642-7789

Page

ED oon e Va Nd hoes 645.0568 6006S 05 iil

Interest Of the Ammious Caries .... 2. ccc ccc scccccces 1

ESTE ELE TET UTR T CRT TTT Tee |

errr ries Teer Leen Tee CLEP ETE TTC TTT 1

Gg rr eT eee TEP eT e Te TTT 1

PPT TOTES ET CET CETTE EE EEE TTT Tee ee 1

I. The Energy Reorganization Act, 42 U.S.C. 5851.

Does Not Preempt A State Tort Claim Arising

Out Of An Unlawful Employee Discharge Fer

Making Safety Complaints ................. 2

Il. The Decision Below Preempting Petitioner’s

StateLaw Claim Frustrates The Independence Of

North Carolina Jurisprudence And The North

Se GED ob. c oe ec bene deuscasves 4

A. North Carolina’s Tradition Of Affording

Protection Against Abusive Employee

Discharge Practices Méilitates Against

«ss “PTT TTT CTT T TTT TTT TT Tee a

B. North Carolina’s Recognition Of Intentional

Infliction of Emotional Distress Militates

PE PER 8 wk che eee eieeseseces 6

TABLE OF CONTENTS

C.

Intentional Infliction Broadly Applies To A

Comprehensive Range Of Abusive Employer

DiissonGatt. .. ccc cceceseesunnenaeen

North Carolina’s Independent Judiciary

Affords An Essential Forum For Employee

Pootestigm. ..occcscvesesseue eee

TABLE OF AUTHORITIES

Cases: Page

Belknap v. Hale, 463 U.S. 491 (1983) ............... 3

Brown v. Burlington Ind., 378 S.E. 2d 232

TEC Eee GbGessescccescccecs 7

California v. ARC America Corp., 109 S. Ct. 1661

CECE C Sisk pace eecseccecercescrecce 3,4

City of Burbank v. Lockhead, 411 U.S. 624 (1973) ...... 2

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532

DMC eee eee hee sencecesscececccss 4

Collins v. Time, 549 F. Supp. 770 (N.D. Ala. 1982) ...... 7

Coman v. Thomas Mfg. Co., 381 S.E. 2d 445

DC UCG ESS eS adieaeedececcccccecs 5

Cooper v. California, 386 U.S. 58, 62 (1967) .......... 8

Davis v. U.S. Steel, 779 F. 2d (4th Cir. 1985) .......... 7

Decanas v. Bica, 424 U.S. 351, 356 (1976) ............ 3

Dixon v. Stuart, 354 S.E. 2d 757 (N.C. App. 1987) ...... 7

Farmer v. United Brotherhood, 430 U.S. 290 (1977) ...... 3

Florida Lime & Avocado Growers, Inc. v. Paul,

Cad wae be ec eee se ssscccess 2

Fort Halifax Packing v. Coyne, 482 U.S. 1 (1987) ....... 2

Gaballah v. PG&E, 711 F. Supp. 988 (N.D. Cal. 1989) ... 2

Geist v. Martin, 675 F. 2d 859 (7th Cir. 1982) eadnd dees 7

iil

Greenlee v. Southern Railway, 30 S.E. 115 (N.C. 1898) ... 5

Norris v. Lumberman’s Mutual Casualty Co., 881 F.

Hall v. May Dept. Store, 637 P.2d 125 (Ore. 1981) ...... 7 Ee ee en

Haskins v. Royster, 70 N.C. 601 (1874) ....-..+--+--- 5 Oregon v. Hass, 420 U.S. 714 (1975)... 22.0... ce eee.

Hines v. Davidowitz, 312 U.S. 52 (1942) ...-..---++-- - Pratt v. Brown, 855 F.2d 1225 (6th Cir. 1988)..........

Hogan v. Forsyth Country Club, 340 S.E. 2d 141 Pruneyard Shopping Center v. Robbins, 447 U.S. 74

(N.C. App. 1986), disc. rev. denied, 346 S.E. 2d 141 SE Sd did ced Cds inden eee ei eek

I haa Ge 6 KARAS eae 6

Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947)

GUD ke ceepees eh enewesestusnesense 3 Rogers v. Loews, 526 F. Supp. 523 (D.D.C. 1981) .......

Holmes v. Oxford Chemicals, 672 F. 2d 854 Sides v. Duke Hospital, 328 S.E. 2d 818 (N.C. App. 1985),

ooo}: & a errrr rer errr Teer eres 7 dis. rev. denied.

Fe e's + b ASH x ee Kees eaeehes

Johnson v. Railway Express, 421 U.S. 454 (1975) ........ 6

Silkwood v. Kerr McGee, 464 U.S. 238 (1984) ..........

Kelly v. Schlumberger, 849 F. 2d 41 (1st Cir. 1988) ...... 7

Southwest Forest v. Sutton, 868 F. 2d 352

Kirby v. Jules Chain Stores Corp., 188 S.E. 625 IE 405s Ph nee avween ss onaeeaar

Ml Peer erry Ere errr. yay ss eres 6

Treants Enterprises v. Onslow County, 350 S.E. 2a

Lingle v. Norge Div. of Magic Chief, 100, L. Ed. 2d 410 365 (N.C. App.), 360 S.E. 2d 783 (1987) .........

rrr rrer rr rer Terr ree ee ee 2,5

Trought v. Richardson, 338 S.E. 2d 617

Linn v. Plant Guard Workers, 383 U.S. 53. 63 (1966) .... 3 Oe i esos Sait kcs'nccaxnnaele

Maryland v. Louisiana, 451 U.S. 725 (1981) ........... 2 West v. King’s Dept. Store, 365 S.E. 2d 621 (N.C. 1988) ...

Milton v. Ill. Bell., 427 N.E. 2d 829 (Ill. App. 1981) ..... 7 Wheeler v. Caterpillar Tractor Co., 485 N.E. 2d 372

(Ill. 1985), cert. denied,

Muratore v. MLS Scotia Prince, 656 F. Supp. 471 EE 4 acu en agnis cae oaeee

(D. Me. 1987), aff'd in pert part,

OOS F. 26 DOr (COGS Cae, TED cc ccc ccesccsens 8 Williams v. Hillhaven Corp., 370 S.E. 2d 423

Se a>: -5 ceedeboduseneacane wes

Nader v. Allegheny Airlines, 426 U.S. 290 (1976) ........ 3

Woodruff v. Miller, 387 S.E. 2d 176 (N.C. App. 1983) ....

New York Tel. Co. v. New York, 440 U.S. 519 (1979) ..... 3

iv

Levislati tas Prosser, Intentional Infliction of Mental Suffering:

Legislative History A New Tort, 37 Mich. L. Rev. 874 (1939)

S. Rep. No. 848, 95th Cong., 2nd Sess. (1978) reprinted in

1978 U.S. Code Cong. & Admin. News 7303 ...... 2 Spence, With Justice For None (1989)

Stone, The Common Law In The United States,

50 Harv. L. Rev. 4 (1936)

Constitutional Provisions

Sutherland, Statutory Construction (4th ed. 1984)

Art. I, Sec. I, North Carolina Constitution ............ 8

Art. I, Sec. 18, North Carolina Constitution ........... 8

Statutes

I nk eh le od eee oS 3

I I yd a a re ee 6

Other Authorities

Larson & Barowsky, Unjust Dismissal (1986) ..........-. 7

McGuinness, The Doctrine of Wrongful Discharge In North

Carolina: The Confusing Path From Sides To Guy and The

Need for Reform, 10 Campbell L. Rev. 217 (1988) ...... 3,5

McGuinness, Contemporary Applications of Intentional

Infliction of Emotional Distress, Journal of the North

Carolina Academy of Trial Lawyers, 20

SU eS CR hb wee e neces eee ese eesecens 6

Perritt, Employee Dismissal Law and Practice

PE hee ekde whee ee eedeedenseserseeess 7

Posner, The Economic Analysis of Law (3rd ed. 1986)... .. 5

vi

vii

INTEREST OF THE AMICUS CURIAE

Plaintiff Employment Lawyers Association (hereafter PELA)

is a non-profi* organization consisting of over 800 lawyers in forty-

nine states. PELA’s members concentrate in the representation of

individual employees in employment and labor matters. Members

of PELA are active in litigating abusive employee discharge claims

like that of Petitioner throughout the nation. PELA is vitally

interested in the outcome of this critical case. Amicus has

obtained the consent of both the Petitioner and Respondent to file

this brief, and has filed letters indicating consent with the clerk’s

office.

STATEMENT OF THE CASE

PELA adopts the statement of the case as presented by

Petitioner.

ISSUE

Whether The Energy Reorganization Act, 42 U.S.C.

5851, Which Provides A Limited Remedy For Employees

Who Suffer Reprisal For Making Safety Complaints

(Whistleblowing), Preempts An Employee’s State Law

Tort Action?

SUMMARY OF ARGUMENT

There is no Congressional intent suggesting that 42 U.S.C.

5851 was designed to preempt all preexisting state tort law claims

available to redress various forms of abusive employer misconduct.

North Carolina and other states have long provided an

independent judiciary affording employees traditional remedies and

constitutionally protected rights of trial by jury. Absent clear

Congressional intent to preempt state law claims, a federal statute

may not eviscerate preexisting state remedies for intentionally

inflicted emotional distress. Here, the Fourth Circuit's approach

preempting such a traditional state tort remedy contravenes basic

principles of American federalism.

_— ~

I. The Energy Reorganization Act, 42 U.S.C.

5851, Does Not Preempt a State Tort Claim

Arising Out of an Unlawful Employee

Discharge for Making Safety Complaints.

Absent an express Congressional intent to preempt state law,

preemption occurs when "compliance with both is a physical

impossibility . . .," Florida Lime & A »cado Growers, Inc. v. Paul,

373 U.S. 132, 142-43 (1963), or where the state law "stands as an

obstacle to the accomplishmeni and execution of the full | rposes

and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67

(1942). The analysis in Norris v. Lumberman’s Mutual Casualty

Co., 881 F. 2d 1144, 1150 (1st Cir. 1989) demonstrates that neither

the statutory language nor the legislative history of section 5851

indicates any Congressional intent to prohibit state common law

remedies. Lingle v. Norge Division of Magic Chief, 108 S. Ct. 1877,

1885 (1988) rejected the analysis employed by the lower court here

favoring preempticn. Accord Fort Halifax Packing Company v.

Coyne, 482 U.S. 1 (1987) (State statute requiring severance pay

not preempted by NLRA or ERISA).

Preemption analysis begins with the settled concept that all

presumptions operate against preemption. E.g. Rice v. Santa Fe

Elevator Corp., 331 U.S. 218, 230 (1947). Preemption analysis

provides that one "starts with the basic assumption that Congress

did not intend to displace state law." Maryland v. Louisiana, 451

U.S. 725, 746 (1981). As Chief Justice Rehnquist has explained,

"unless the requisite preemption intent is abundantly clear, we

should hesitate to invalidate state and local legislation..." City of

Burbank v. Lockhead Air Terminai, Inc., 411 U.S. 624, 643 (1973)

(Rehnquist, J. dissenting). The Fourth Circuit’s approach in the

case sub judice overlooks these strong presumptions and the

legislative history of section 5851. See S. Rep. No. 848, 95th

Cong., 2nd Sess. (1978), reprinted in 1978 U.S. Code Cong. &

Admin. News 7303; Gaballah v. PG&E, 711 F. Supp. 988, 990

(N.D. Cal. 1989); Wheeler v. Caterpillar Tractor Co., 485 N.E. 2d

372 (Ill. 1985), cert. denied, 475 U.S. 1122 (1986). Here, there is

no such abundantly clear evidence that Congress intended to

preempt the entire field of all state remedies for emotional harm

and other tortious injuries to workers who suffer reprisal for

making safety complaints.

These fundamental principles of de‘erence to state law have

been particularly strong where the state law involved is common

law rather than statutory law. In Na er v. Allegheny Airlines, 426

U.S. 290, 301 (1976), this Court rejected the defendant’s

preemption argument, reaffirming that common law rights are not

abrogated by a subsequent federal statute. This Court has long

preseived states’ rights to enforce common law remedies, especially

in the labor context. E.g., Belknap v. Hale, 463 U.S. 491, 509

(1983) (state fraud and contract claims not preempted by the

National Labor Relations Act); Linn v. Plant Gaurd Workers, 383

U.S. 53, 63 (1966) ("state remedies have been designed to

compensate the victim...").

This Court’s holding and rationale in Farmer v. United

Brotherhood of Carpenters and Joiners, 430 U.S. 290 (1977) is

controlling. There, this Court held that the National Labor

Relations Act did not preempt a tort action for intentional

infliction under California law. Absent express legislative intent to

preempt a specific area by statute, statutory and common law

remedies are cumulative. See New York Tel. Co. v. New State

Dept. of Labor, 440 U.S. 519 (1979); Holien v. Sears, Roebuck &

Co., 689 P.2d 1292 (Ore. 1984); J. Sutherland, Statutory

Construction, section 50.05 at 441 (4th ed. 1984). Therefore, the

long established Norih Carolina common law doctrines of

intentional infliction of emotional dis:ress and wrongful discharge

are similarly not abrogated by the subsequently enacted limited

remedy associated with 42 U.S.C. 5851.

Congress and the states have enacted overlapping protections

against wrongful discharge and related injuries thus creating layers

of essential protection. See McGuinness, The Doctrine of Wrongful

Discharge In North Carolina: The Confusing Path From Sides to

Guy and the Need for Reform, 10 Campbell L. Kev. 217, 219 n.4

(1988) (summarizing federal statutery and state common law

theories of recovery). There is no actual or apparent conflict

between the essential purposes of North Carolina’s state tort law

and section 5851 and thus no obstacle for compliance with both.

Moreover, "ordinarily, state causes of action are not preempted

solely because they impose liability over and above that authorized

by federal law." California v. ARC America Corp., 109 S. Ct. 1661,

1667 (1989). In Decanas v. Bica, 424 U.S. 351, 356 (1976), this

Court recognized that "states possess broad authority...to regulate

the employment relationship to protect workers within the State."

3

The Fourth Circuit's approach here frustrates the bedrock

principles of federalism.

This Court has repeatedly “recognized the severity of

depriving a person of the means of livelihond.” Cleveland Bd. of

Educ. v. Loudermill, 470 U.S. 532, 543 (1985). Justice Marshall’s

concurrence in Loudermill also underscored the "traumatic effect

of a wrongful discharge on a working person" and how "so very

much is at stake" in employment litigation. Jd. at 551. Too tauch

is at stake in state employment litigation nationally for section

5851 to wipe out ceniuries of setiled state common law protection

absent clear Congressional intent to displace these seminal laws.

The Fourth Circuit’s approach in the case sub judice erroneously

construes Congressional intent and frustrates settled state law

protection for the common worker. As one commentator

explained:

In the workplace, we wage our most important

battles, with poor weapons 2nd few rights, and

then, like the slaves of old, many ire

irretrievably trapped...The American

worker...lives with degradation and helplessness.

G. Spence, With Justice For None 162 (1989).

Il. The Decision Below Preempting Petitioner’s

State Law Claim Frustrates The Independence

Of North Carolina Jurisprudence And The

North Carolin. Constitution.

A. North Carolina’s Tradition Of

Affording Protection Against Abusive

Employee Discharge Militates Against

Preempztion.

Are the states free to provide greater or additional remedies

for abused workers than the limited remedies provided by Congress

through 42 U.S.C. 5851? California v. ARC America Corp., 109 S.

Ct. 1661. 1667 (1989) and its antecedents provide that states are

frec to “impose liability over and a+ ve that authorized by federal

law." The foregoing preemption analysis must be applied against

the backdrop of North Carolina’s historic tradition of state law

protection for the abused wozker.

North Carolina has a rich and proud heritage of protecting

employees from abusive emnloyer misconduct through various

common law claims. North Carolina was among the first states in

the nation to recognize a bad faith excepticn to the employment

at will doctrine. In 1874, in Haskins v. Royster, 70 N.C. 601 (N.C.

1874), the North Carolina Supreme Court held that an employer

may not discharge an employee in bad faith. See McGuinness,

The Doctrine of Wrongful Discharge In North Carolina: The

Confusing Path From Sides To Guy and The Need For Reform, 10

Campbeli L. Rev. 217, 222-23 (1988). In the nineteenth century,

the North Carolina Supreme Court observed that "the courts will

be very de.clict in their duty if they do not force justice in favor

of employees as well as the public.” Greenlee v. Southern Railway,

30 S.E. 115, 115 (N.C. 1898).

In Coman v. Thomas Manufacturing Company, 381 S.E. 2d

445 (N.C. 1989), the North Carolina Supreme Court reaffirmed

Haskins: "bad faith conduct should not be tolerated in

employment relations, just as it is not accepted in other

commercial relationships.” /d. at 448 and n.3. Judge Richard

Posner of the Seventh Circuit similarly supports a state law cause

of action for wrongful discharge. "A common law tort of unjust

termination [is] sensibly applied in cases where a worker is fired

for exercising a legal right..." Posner, The Economic Analysis of

Law 307 (3rd ed. 1986). See Lingle v. Norge Div. of Magic Chief,

Inc., 108 S. Ct. 1877, 1881-82 (1988) (discussing state wrongful

discharge claims in the context of preemption).

Between North Carolina’s historic pronouncements in Haskins

aud Coman, the No:th Carolina Court of Appeals employed its

common law tradition in recognizing various common law theories

to enable workers to combat abusive employer conduct. E.g., Sides

v. Duke Hospital, 328 S.E. 2d 818, disc. rev. denied, 333 S.i:. 2d 490

(N.C. 1985) (public policy exception to the at will doctrine);

Williams v. Hillhaven Corp., 370 S.E. 2d 423 (N.C. App. 1988)

(same). In Sides, the court relied upon North Carolina’s rich

cominon law history: "with social change comes the imperative

demand that law shall satisfy the needs which change has

created...law shall at once have continuity with the past and

adantability to the future.” 328 S.E. 2d at 827, quoting Stone, The

Common Law In The United States, 50 Harv. L. Rev. 4, 11 (1936).

5

In addition to the iraditional bad © ‘th excepticn and the public

policy exception, North Carolina also recognizs implied contract

claims for discharged employces. Trought v. Richardson, 338 S.E.

2d 617, 619-20 (N.C. App. 1986) (bilaterally executed employment

manual binding). In addition to the numerous federai statutory

and constitutional protections, the North Carolina General

Assembly has afforded protection for whistieblowers. See N.C.

Gen. Stat. 126-84. The Fourth Circuit’s decision eviscerates the

fabric of this compelling state protection of basic human righis.

B. North Carolina’s Recognition Of

Intentional Infliction Of Emotional

Distress Militates Against Preemption.

In addition to the traditional wrongful discharge theories,

North Carolina has also long recognized the tort of intentional

infliction of emotional distress. See West v. Kings Departmeni

Store, Inc., 365 S.E. 2d 621 (N.C. 1988); McGuinness,

Contemporary Applications of Intentional Infliction of Emotional

Distress, Journal of The North Carolina Academy of Trial Lawyers

20 (Vol. 21, No. 1, 1989). In Kirby v. Jules Chain Stores Corp., 188

S.E. 625 (N.C. 1936), the North Carolina Supreme Court initially

recognized a form of intentional infliction of emotional distress as

an independent tort. See generally Prosser, Intentional Infliction of

Mental Suffering: A New Tort, 37 Mich. L. Rev. 874 (1939).

Contemporary North Carolina cases have also applied the

intentional inflicticn tort to various forms of abusive employee

discharge. In Hogan v. Forsyth County Country Club, 340 S.E. 2d

116, 123 (N.C. App. 1986), disc. rev. denied, 346 S.E. 2d 141

(1986), the court recognized intentional infliction in an «™pioyee

discharge case premised upon sexual harassment. In spn.: f the

comprehensive coverage and application of litle VII of the Civil

Rights Act of 1964, North Carolina recognized the protection of

the intentional infliction tort and the essential "remedial recourse

through our North Carolina legal system." /d. See Johnson v.

Railway Express, 421 U.S. 454, 459 (1975) (despite the

comprehensive nature of Title VII, "the aggrieved individual is

clearly not deprived of other remedies he possesses and is not

limited to Title VII in his search for relief"). Certainly, if the

pervasive Title VII scheme does not preempt the field, the narrow

provision in section 5851 is not preemptive.

6

In Dixon v. Stuart, 354 S.E. 2d 757 (N.C. App. 1987), the

court reversed the trial court’s dismissal of the employee's

intentional infliction claim where the employee alleged a pattern

of ridicule and egregious harassment in the workplace. See Brown

v. Burlington Industries 378 S.E. 2d 232 (N.C. App. 1989)

(intentional infliction verdict of $60,000.00 affirmed in employee

discharge case —- emised upon sex harassment). These compelling

North Carolina cases are in accord with strong national trends

underscoring traditional state law intentional infliction claims. E.g.

Davis v. U.S. Steel, 779 F. 2d 209 (4th Cir. 1985) (sex harassment);

Pratt v. Brown, 855 F. 2d 1225 (6th Cir. 1988); Rogers v. Loews

L’Enfant Piaza, 526 F. Supp. 523 (D.D.C. 1981), H. Perritt,

Employee Dismissal Law and Practice, section 5.23 (2nd ed. 1987);

Larson & Barowsky, Unjust Dismissal, section 4.03 (1986).

C. Intentional Infliction Broadly Applies To A

Comprehensive Range Of Abusive Employer

Misconduct.

In addition to the foregoing employee discharge cases

grounded in intentional infliction theories, the intentional infliction

tort has been employed in various other employment contexts.

E.g., Holmes v. Oxford Chemicals, 672 F. 2d 854 (11th Cir. 1982)

(intentional infliction verdict upheld where the employer arbitrarily

reduced employee’s monthly disability payment); Kelly v.

Schlumberger Tech., 849 F. 2d 41 (ist Cir. 1988) (intentional

infliction claim recognized for employer misconduct in drug testing

program; $125,000.00 verdict affirmed); Souchwest Forest (nd. v.

Sutton, 868 F. 2d 352 (10th Cir. 1989) (intentional infliction verdict

of $1,250,000.00 upheld for abusive discharge); Collins \ General

Time Corp., 549 F. Supp. 770 (N.D. Ala. 1982) (threats of

discharge may give rise to intentional infliction); Geist v. Martin,

675 F. 2d 859 (7th Cir. 1982) (intentional infliction for termination

of plaintiffs husband as agent of deferdant); Hall v. May Dept.

Stores, 637 P. 2d 126 (Ore. 1981) (intentional infliction claim

supported for employee harassment in investigating cash shortages).

In Milton v. Ill. Beli Tel., 427 N.E. 2d 829 (Ill. App. 1981), the

court held that an intentional infliction claim was stated where the

employer harassed the employee for refusing to falsify reports.

The intentional infliction tort also applies far beyond the

employment context, often focusing on a series or pattern of bad

7

acts. E.g., Woodruff v. Miller, 387 S.E. 2d 176 (N.C. App. 1983);

Muratore v. MLS Scotia Prince, 656 F. Supp. 471 (D. Me. 1987),

aff'd 845 F. 2d 347, 352 (ist Cir. 1988).

The import of the foregoing cases is thai states are free to

employ their common law tradition in recognizing multiple layer

of protection from abusive employer misconduct, thus affording full

damage remedies along with the right to trial by jury. Since there

is no conflict in the state and federal provisions, there is no

legitimate basis to abrogate time-honored state law. Tie Fourth

Circuit’s holding in the case sub judice denies Vera English and

employees everywhere their fundamental right to trial by jury as

guaranteed by the North Carolina and United States Constitutions.

D. North Carolina’s Independent Judiciary

Affords An Essential Forum For

Employee Protection.

North Carolina employees such as Vera English are entitled

to access state courts for traditional remedies pursuant to Article

I, Section 18 (Open Court Clause) of the North Carolina

Constitution. The Open Court Clause provides: "All courts shall

be open; every person for an injury done him in his lands, good,

person or reputation shall have remedy by due course of law; and

right and justice shall be administered without favor, denial, or

delay.". The reasoning of the North Carolina Supreme Court in

Coman is especially instructive: "Although plaintiff may have some

additional remedy in the federal courts, the courts of North

Carolina cannot fail to provide a forum to determine a valid cause

of action." 381 S.E. 2d at 446. Article 1, Section 1 of the North

Carolina Constitution further endows individuals with a

constitutional right to enjoy the fruits of one’s labor. See Treants

v. Onslow County, 350 S.E. 2d 365 (N.C. App.), aff'd 360 S.E. 2d

783 (1987).

States are free to provide greater remedies than those

afforded by Congress or by the federal constitution. In Pruneyar@

Shopping Center v. Robbins, 447 U.S. 74, 81 (1980), this Cou~.

recognized the authority of a state "to adopt in its own constitution

individual liberties more expansive than those conferred by the

federal constitution." Accord Oregon v. Hass, 420 U.S. 714, 719

(1975); see Cooper v. California, 386 U.S. 58, 62 (1967). More

specifically, in Silkwood v. Kerr-McGee, 464 U.S. 238, 257-58

8

(1984), this Court held that states are free to impose greater

liability on offending employers tnat Congress has seen fit to

impose. Here, the Fourth Circuit’s decision pervasively tramples

upon traditional states’ rights without any supporting Congressional

intent. Rather, the decision below serves only to frustrate North

Carolina’s history of providing redress to employees subjected to

tortious emotional distress by abusive employers.

CONCLUSION

Wherefore, Amicus PELA respectfully urges this Court to

reverse the judgement below and to remand this case for trial.

J. Micnael McGuinness * Of Counsel

Lisa A. Parlagreco Paul Tobias

Counsel For Amicus, PELA 911 Mercantile Library Bldg.

P.O. Box 5939, JFK Station 414 Walnut Street

Boston, MA 02114 Cincinnati, OH 45202

(617) 742-1900 513) 241-8137

* Counsel of Record

oa