Brooks v. Carolina Tel. & Tel. Co., 8120SC795
| Decision Date | 20 April 1982 |
| Docket Number | No. 8120SC795,8120SC795 |
| Citation | 290 S.E.2d 370,56 N.C.App. 801 |
| Court | North Carolina Court of Appeals |
| Parties | Gail M. BROOKS v. CAROLINA TELEPHONE AND TELEGRAPH COMPANY. |
Pollock, Fullenwider, Cunningham & Patterson, P.A. by Bruce T. Cunningham, Jr., Southern Pines, for plaintiff-appellant.
Tally & Tally by John C. Tally, Fayetteville, for defendant-appellee.
In count one of her complaint, plaintiff has in effect alleged that her employment contract was breached. Although plaintiff did allege that she was wrongfully discharged, the closing paragraph in this count and her prayer for relief make it clear that she is seeking to recover not for wrongful discharge, but for failure of defendant to pay compensation earned during her employment. We quote, in pertinent part, as follows:
9. That the personnel administration policy for management employees provides for a termination allowance to any employee who is dismissed or induced to resign for unadaptability or inability to perform properly the duties of the job. That the Plaintiff would be entitled to thirty (30) weeks of termination allowance due to the fact that she had been employed for in excess of fifteen (15) years.
WHEREFORE, the Plaintiff prays that she have and recover of the Defendant a sum equal to thirty (30) weeks of the Plaintiff's salary as termination allowance, and that the costs of this action be taxed against the Defendant.
Pursuant to the allegation set out in her first count, plaintiff would be entitled at trial to show that her contract of employment with defendant entitled her to the termination pay she seeks to recover. Defendant's denial of plaintiff's allegations as to her entitlement to such pay puts this matter at issue. Summary judgment, pursuant to the provisions of G.S. 1A-1, Rule 56 of the Rules of Civil Procedure, may be entered only when the moving party has been able to show that there is no genuine issue as to any material fact remaining to be tried. Easter v. Hospital, 303 N.C. 303, 278 S.E.2d 253 (1981); Vassey v. Burch, 301 N.C. 68, 269 S.E.2d 137 (1980); Pitts v. Pizza, Inc., 296 N.C. 81, 249 S.E.2d 375 (1978); Savings & Loan Assoc. v. Trust Co., 282 N.C. 44, 191 S.E.2d 683 (1972); Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). In its affidavit in support of its motion for summary judgment, defendant has admitted plaintiff's employment in a management position and admitted that it had in effect a termination allowance applicable to management employees. Defendant's assertion, however, that such a provision was subject to changes or cancellation simply does not address the factual issue of whether plaintiff became entitled to such an allowance during and by reason of her employment. Such an employment contract provision, recognizably cancellable at will by an employer, would nevertheless operate to protect employees within its coverage during their employment and during the effective operation of such a provision. See e.g., Thomas v. College, 248 N.C. 609, 104 S.E.2d 175 (1958). Compare Briggs v. Mills, 251 N.C. 642, 111 S.E.2d 841 (1960). Defendant, in support of its position, relies on the decisions of our Supreme Court in Still v. Lance, 279 N.C. 254, 182 S.E.2d 403 (1971); Tuttle v. Lumber Co., 263 N.C. 216, 139 S.E.2d 249 (1964); and Howell v. Credit Corp., 238 N.C. 442, 78 S.E.2d 146 (1953); and the decision of this Court in Williams v. Biscuitville, Inc., 40 N.C.App. 405, 253 S.E.2d 18 (1979), disc. rev. denied, 297 N.C. 457, 256 S.E.2d 810 (1979). Those cases dealt with each employee's right to continued employment and did not deal with the issue of benefits or compensation earned during employment. Those cases are not apposite to the case now before us.
Summary judgment as to plaintiff's claim in Count One was erroneously entered and must be reversed.
In her second count, plaintiff seeks compensation for...
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