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2 Charlotte L. Rev. 201 (2010)
Constructive Termination Must Be Recognized in Wrongful Termination Cases as a Matter of Law: Plaintiff's Duty to Mitigate Damages

handle is hein.journals/charlolwr2 and id is 201 raw text is: CONSTRUCTIVE TERMINATION MUST BE RECOGNIZED IN WRONGFUL TERMINATION CASES AS A MATTER OF LAW: PLAINTIFF'S DUTY TO MITIGATE DAMAGES Steven A. McCloskey* I. INTRODUCTION-WRONGFUL TERMINATION AND EMPLOYMENT AT-WILL North Carolina is an at-will employment state, meaning that in the absence of evidence to the contrary, either the employer or em- ployee is free to terminate the employment relationship at any time, for any (legal) reason, or for no reason at all.' In North Caro- lina, the doctrine of at-will employment has been well-protected by the courts, often at the sacrifice of sound legal analysis.2 There is an exception to at-will employment, however, where an employee-plaintiff's claim is for wrongful termination in violation of public policy. This wrongful termination tort was first recog- nized in the 1985 North Carolina Court of Appeals decision Sides v. Duke University, in which plaintiff-nurse Ms. Sides was fired for re- fusing to give perjured testimony in a lawsuit concerning medical malpractice.3 In 1989, in Coman v. Thomas Manufacturing,4 the Supreme Court of North Carolina gave its imprimatur to the tort itself, but also muddied the waters regarding the claim's applicability in cases of constructive wrongful termination. Plaintiff Coman was a truck driver who suffered adverse employment consequences when he re- fused to falsify trip sheets to be submitted to the Department of * McCloskey received a Bachelor of Science from Virginia Tech, and his J.D. from North Carolina Central School of Law; he is a solo practitioner in Winston-Salem, NC. 1. In North Carolina, at-will employees may be terminated for no reason, or for an arbi- trary or irrational reason, but not for an unlawful reason or purpose that contravenes pub- lic policy. Sides v. Duke Univ., 74 N.C. App. 331, 342, 328 S.E.2d 818, 826 (Ct. App. 1985), disc. rev. denied, 314 N.C. 331, 333 S.E.2d 490 (1985) (overruled in part on other grounds by Kurtzman v. Applied Analytical Indus., Inc., 347 N.C. 329, 331, 493 S.E.2d 420, 422 (1997)). 2. See, e.g., Steven A. McCloskey, North Carolina Employment Case Law: Contract Prin- ciples Abandoned, 25 N.C. CENT. L.J. 163 (2003). 3. 74 N.C. App. 331, 328 S.E.2d 818. 4. 325 N.C. 172, 173, 381 S.E.2d 445, 446 (1989). 201

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