L. J. Pettyjohn v. Estes Express Lines

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).

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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

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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.
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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

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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

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“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

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

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(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.

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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’

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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.
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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

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

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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:

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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

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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.
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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

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