UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

OCCIE L. JONES, 

Plaintiff-Appellant,

v.  No. 02-1024

DUKE ENERGY CORPORATION,

Defendant-Appellee. 

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

H. Brent McKnight, Magistrate Judge.

(CA-00-641-3-MCK)

Submitted: July 16, 2002

Decided: August 9, 2002

Before NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Roger W. Rizk, ROGER W. RIZK, P.A., Charlotte, North Carolina,

for Appellant. Jill Stricklin Cox, John James Doyle, CONSTANGY,

BROOKS & SMITH, L.L.C., Winston-Salem, North Carolina, for

Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

Occie L. Jones appeals the district court’s adverse grant of summary judgment in her civil action against her former employer, Duke

Energy Corporation (Duke), in which she alleged that Duke violated

the North Carolina Equal Employment Practices Act, N.C. Gen. Stat.

§ 143-422.2 (1999) (NCEEPA) by engaging in retaliation, subjecting

her to a hostile work environment and general disparate treatment

because of her race, and constructively discharging her. She further

alleged that Duke violated the Employee Retirement Income Security

Act of 1974, 29 U.S.C.A. §§ 1001-1461 (West 1999 & Supp. 2002)

(ERISA), by failing to furnish her with documents relating to other

employees’ monthly contribution amounts under medical insurance

plans offered by Duke. For the reasons set forth below, we affirm the

district court’s grant of summary judgment in favor of Duke. 

The provisions of the NCEEPA do not explicitly provide a private

cause of action for violation of the stated public policy, nor have

North Carolina courts recognized such a private cause of action arising independently out of the statute. Smith v. First Union Nat’l Bank,

202 F.3d 234, 247 (4th Cir. 2000). While Jones recognizes this to be

the case, she claims that the narrow exception to the employment-atwill doctrine for wrongful discharge carved out by North Carolina

courts demonstrates a shifting of the tide toward private action rights

under the statute, and she argues there is no "rational distinction"

between claims for constructive discharge and wrongful discharge

claims. We disagree. As the district court found, North Carolina

courts and federal courts applying North Carolina law have made that

very distinction, by finding repeatedly that no private cause of action

exists for retaliation, hostile work environment, disparate treatment,

or constructive discharge in violation of public policy.1 We decline to

expand the provisions of the NCEEPA, as Jones requests. 

1

See, e.g., Smith, 202 F.3d at 247 (no cause of action for sexual harassment under the NCEEPA); McFadden v. Trend Community Health

Servs., 114 F. Supp. 2d 427, 2000 U.S. Dist. LEXIS 19340, *6-7

(W.D.N.C. 2000) (constructive discharge); DeWitt v. Mecklenburg

County, 73 F. Supp. 2d 589, 604-05 (W.D.N.C. 1999) (general disparate

treatment, hostile work environment, retaliation). 

2 JONES v. DUKE ENERGY CORP.
Jones also asserts that the district court erred in finding that Duke

did not violate ERISA’s disclosure provisions2 by refusing to send her

a comparison "cost scale" showing the required contribution amounts

payable by other individuals for retiree medical coverage. Specifically, Jones requested Duke to produce "scenarios of Retirement

Medical Insurance monthly premiums" for people eligible in all

groups. We find the district court properly rejected Jones’ ERISA

claim based upon the undisputed fact that no integrated "cost scale"

or "comparison chart" showing monthly contribution amounts for all

groups of participants by age and eligible service at retirement ever

existed during the time period at issue. Duke cannot be in violation

of § 1024(b)(4), for its failure to disclose a document it did not have.

Accordingly, we find that summary judgment was proper. We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

2Under ERISA, a plan administrator’s duty to disclose plan documents

to participants is governed by Section 1024(b)(4), which provides, in pertinent part: 

The administrator shall, upon written request of any participant

or beneficiary, furnish a copy of the latest updated summary plan

description, and the latest annual report, any terminal report, the

bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated . . . . 

29 U.S.C.A. § 1024(b)(4) (West Supp. 2002). In defining the phrase "instruments under which the plan is established or operated," we have held

that, "The clear and unambiguous meaning of this statutory language

encompasses only formal or legal documents under which a plan is set

up or managed." Faircloth v. Lundy Packing Co., 91 F.3d 648, 654 (4th

Cir. 1996). 

JONES v. DUKE ENERGY CORP. 3