About the Firm

Attorney Brian H. Alligood provides top quality, aggressive legal representation to individuals and businesses throughout North Carolina. Mr. Alligood regularly represents parties in disputes arising from all aspects of the employer-employee relationship. Employment issues frequently litigated include claims of discriminatory hiring and employment practices, sexual harassment, retaliation and wrongful discharge, wage and hour violations, breach of contract and no-compete covenants, and employee benefits litigation. In addition to confronting claims of traditional employment discrimination, Mr. Alligood represents parties with respect to statutory rights and obligations imposed by the Americans with Disabilities Act and the Family Medical Leave Act.

Mr. Alligood regularly appears in all North Carolina state and federal courts and administrative agencies, including the Equal Employment Opportunity Commission (EEOC), the North Carolina Department of Labor, and the Office of Federal Contractor Compliance Programs (OFCCP).

Monday, January 21, 2013

N.C. Supreme Court Clarifies Worker’s Compensation Exclusivity Exception in Negligence Action Brought against Public School Principal

In a December opinion, Trivette v. Yount, the North Carolina Supreme Court ruled that a Caldwell County public school employee stated a valid negligence cause of action against her school’s principal for an injury suffered on the job.  In so ruling, the Court determined that the school’s principal and the subordinate employee constituted co-employees.  This relationship, the Court found, was not subject to the exclusivity provision of North Carolina Workers’ Compensation Act – even though the injury occurred on the job and even though the plaintiff was simultaneously pursing a workers’ compensation claim before the North Carolina Industrial Commission.   

The facts of the case are somewhat bizarre.  The plaintiff testified that a student had pulled the safety pin from a fire extinguisher and sprayed it in a classroom.  The extinguisher was then brought to the area where the plaintiff’s desk and the principal’s office were located.  The next day, the principal placed the extinguisher on the corner of the plaintiff’s desk.  After the plaintiff asked the principal to remove the extinguisher and replace its safety pin, the principal allegedly scoffed and continued “playing” with the extinguisher while joking around with another secretary.  The extinguisher then discharged, causing a fine powdery mist to land on the plaintiff.  The plaintiff alleged that the substance aggravated her myasthenia gravis, a pre-existing medical condition that had been in remission.  She filed a claim with the North Carolina Industrial Commission seeking workers’ compensation benefits and also filed a separate lawsuit against the principal for additional damages.  Her husband joined in the lawsuit with a claim of his own for loss of consortium.

The defendant-principal moved to dismiss the lawsuit on grounds that North Carolina’s Workers’ Compensation Act provides the exclusive remedy for the plaintiff’s claim.  The defendant alternatively moved for summary judgment on grounds that the alleged conduct did not rise to a sufficient level of culpability even if the exclusivity provision did not bar the claim.

In opposing the motion to dismiss, the plaintiff argued that her suit was permissible under an exception to the exclusivity provision of the Workers’ Compensation Act.  That exception, known as the Pleasant exception, allows an injured worker to sue a co-employee for “intentional injuries,” a term defined to include injuries resulting from willful, wanton, and reckless negligence. 

In assessing whether the plaintiff’s action could fall within the Pleasant exception, the critical issue was whether the school principal constituted the plaintiff’s co-worker.  The Pleasant exception would allow the action if he was a co-worker.  If, on the other hand, the principal were deemed the plaintiff’s employer, rather than a co-worker, the exclusive remedy provision of the Workers’ Compensation Act would preclude the action. 

In order to resolve the issue, the Court closely examined the nature of the working relationship between the two parties.  The Court recognized that the defendant, as school principal, was an agent of the school board.  The Court also agreed that the defendant-principal held supervisory authority over the plaintiff.  Neither fact, however, was determinative. 

Instead, the Court turned to N.C.G.S. § 115C-276(j), which indicates that every person employed in North Carolina’s public schools (other than charter schools) is an employee of the local board of education.  On this basis, the Court concluded that the defendant-principal and the plaintiff were both employees of the Caldwell County Board of Education.  Consequently, the Court affirmed the lower courts’ determination that the plaintiff stated a permissible cause of action under the Pleasant exception to worker’s compensation exclusivity.

In further support of its opinion, the Supreme Court also approved of several North Carolina Court of Appeals decisions, which have previously held that supervisors and those they supervise should be treated as co-employees under the Workers’ Compensation Act.  By aligning itself with these cases, the North Carolina Supreme Court leaves no question that supervisors, in cases of willful, wanton, or reckless negligence, can be sued for work place injuries despite the availability of workers’ compensation benefits.

As noted earlier, the defendant also moved for summary judgment on grounds that his alleged misconduct did not arise to a sufficient level of culpability to support a liability finding under Pleasant in any event.   Please return soon for discussion of the outcome of this separate, but equally important North Carolina employment law ruling.

Thursday, January 3, 2013

Fourth Circuit Finds Plaintiff’s Allegations of Sexual Harrassment Sufficient to State a Claim for Relief

On December 1, 2012, in the case of Sheila Davis v. City of Charlottesville School Board, the Fourth Circuit Court of Appeals (the Circuit with jurisdiction over North Carolina's federal courts) vacated a District Court’s dismissal of a sexual harassment complaint filed by Sheila Davis against the City of Charlottesville School Board.  Presently, only the slip opinion is available; click here to view the slip opinion.

As the opinion explains, in order to establish a claim for coworker sexual harassment under federal law, a plaintiff must demonstrate that the conduct was unwelcome, that it was based on gender, that it “was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment,” and that it is “imputable to her employer.” See, e.g., Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 331 (4th Cir. 2003).

Ms. Davis alleged that she was the subject of an attempted sexual assault by a coworker and that she immediately reported the incident to a supervisor. She alleged that she then suffered an unwanted intimate touching by the same coworker the very next day. The district court concluded that Ms. Davis had not alleged any facts that would entitle her to relief and dismissed her complaint. The Fourth Circuit disagreed. It found that the facts alleged by Davis, including the physical nature of the harassment, stated a plausible claim that the assault was “sufficiently severe or pervasive” to survive dismissal. Furthermore, the Fourth Circuit held that Ms. Davis sufficiently alleged facts that could demonstrate liability on behalf of her employer, since she immediately reported the harassment and the harassment occurred again thereafter.

In sum, the Fourth Circuit held that Ms. Davis’s original complaint was sufficient to state a plausible claim for relief, and the district court’s judgment was reversed and remanded. The opinion is notable inasmuch as it confirms that even misconduct that is limited in frequency can suffice to establish a sexual harassment claim when the conduct is severe in nature.

The Davis case reaffirms the difficulties posed by allegations of workplace sexual misconduct.  Even in traditionally conservative federal circuits, when sexual misconduct is alleged to have recurred after reporting, such cases will almost surely reach a jury for final determination. If you are confronting issues of work place harassment, it is important to speak with experienced North Carolina employment lawyers. Please feel free to contact me directly at (336) 333-6375 to discuss the case or other North Carolina employment law matters.  For more information about my Greensboro law firm of Sharpless & Stavola, please visit our website at