Howell v. Town of Carolina Beach

• Decision Date: 16 June 1992
• Docket Number: No. 915SC552,915SC552
• Citation: 417 S.E.2d 277,106 N.C.App. 410
• Court: North Carolina Court of Appeals
• Parties: Wayne D. HOWELL, Plaintiff, v. TOWN OF CAROLINA BEACH, North Carolina, a body politic and incorporate, the Town of Carolina Beach Board of Commissioners, David Serrell, in his individual and official capacities, and Hubert Vincent, Patsy R. Efird, and Douglas Batson, in their individual and official capacities, and Robert L. Doetsch and Edward Chinnis, in their official capacities, Defendants.

Page 277

417 S.E.2d 277

106 N.C.App. 410

Wayne D. HOWELL, Plaintiff, v. TOWN OF CAROLINA BEACH, North Carolina, a body politic and incorporate, the Town of Carolina Beach Board of Commissioners, David Serrell, in his individual and official capacities, and Hubert Vincent, Patsy R. Efird, and Douglas Batson, in their individual and official capacities, and Robert L. Doetsch and Edward Chinnis, in their official capacities, Defendants.

No. 915SC552.

Court of Appeals of North Carolina.

June 16, 1992.

A.A. Canoutas, Wilmington, for plaintiff-appellant.

Johnson and Lambeth by Carter T. Lambeth and Maynard M. Brown, Wilmington, for defendants-appellees.

LEWIS, Judge.

Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. N.C.G.S. § 1A-1, Rule 56; Bolick v. Townsend Co., 94 N.C.App. 650, 381 S.E.2d 175, disc. rev. denied, 325 N.C. 545, 385 S.E.2d 495 (1989). "A defendant is entitled to summary judgment only when he can produce a forecast of evidence, which when viewed most favorably to plaintiff would, if offered by plaintiff at trial, without more, compel a directed verdict in defendant's favor, (citation omitted) or if defendant can show through discovery that plaintiff cannot support his claim (citation omitted)." Coats v. Jones, 63 N.C.App. 151, 154, 303 S.E.2d 655, 657, aff'd, 309 N.C. 815, 309 S.E.2d 253 (1983). Therefore, we must consider each of plaintiff's claims, in the light most favorable to him, to determine if plaintiff's forecast of the evidence revealed any genuine issue of material fact. Before such discussion, we note that in his brief, plaintiff fails to argue his claims of intentional infliction of emotional distress, invasion of privacy, and defamation. Therefore, these claims are deemed abandoned pursuant to N.C.R.App.P. 28(b)(5) and we decline to address them.

Plaintiff's claims for breach of employment contract and for wrongful discharge rely on his argument that the town's Personnel Policies and Procedures Manual takes him out of the employment-at-will category.

It is clear in North Carolina that, in the absence of an employment contract for a definite period, both employer and employee are generally free to terminate their association at any time and without any reason. (Citation omitted). This Court has held, however, that in some circumstances employee manuals setting forth reasons and procedures for termination may become part of the employment contract even where an express contract is nonexistent. (Citation omitted).

Salt v. Applied Analytical, Inc., 104 N.C.App. 652, 655, 412 S.E.2d 97, 99 (1991), disc. rev. denied, 331 N.C. 119, 415 S.E.2d 200 (1992). Without more, "unilaterally promulgated employment manuals or policies do not become part of the employment contract unless expressly included in it." Walker v. Westinghouse Elec. Corp., 77 N.C.App. 253, 259, 335 S.E.2d 79, 83-84, (1985), disc. rev. denied, 315 N.C. 597, 341 S.E.2d 39 (1986) (citation omitted).

In Salt, plaintiff filed suit against her employer for both breach of contract and wrongful discharge. Plaintiff-Salt argued that her employer's personnel manual, which she was required to sign to confer receipt, constituted part of her employment contract. By failing to follow the disciplinary procedure outlined in the manual plaintiff-Salt alleged that the employment contract was breached. The manual classified employees as either probationary or tenured. In this manual, the employer specifically reserved the right to "[t]erminate an employee at any time. Suspend from work any employee ... [or] [r]eturn to probationary status from tenured status any employee...." Salt, 104 N.C.App. at 656, 412 S.E.2d at 99. Plaintiff-Salt could not show that the manual was "expressly included within [her] terminable-at-will contract." Rosby v. General Baptist State Convention of North Carolina Inc., 91 N.C.App. 77, 81, 370 S.E.2d 605, 608, disc. rev. denied, 323 N.C. 626, 374 S.E.2d 590 (1988). She also could not show that the manual provided for discharge only "for cause." Harris v. Duke Power Co., 319 N.C. 627, 356 S.E.2d 357 (1987). Therefore, we held that defendant-Applied Analytical's personnel manual could not be considered a part of plaintiff's employment contract. Summary judgment on the issue of breach of contract was, therefore, properly granted in favor of defendant-Applied Analytical.

In the case at bar, the Town imposed upon itself the requirements set out in its Personnel Policies and Procedures Manual. The parties agree that the Manual provides a grievance procedure: "To provide a means whereby any employee who feels that he/she has been subjected to unfair, discriminatory or abusive treatment may secure a hearing without delay and be assured of a prompt, orderly, and fair response to the grievance or appeal." Dismissals and suspensions are specifically set out as matters within the grievance procedure. The Manual requires a grievance hearing to take place within 25 days of the incident in question. Plaintiff filed the required written grievance request but the record indicates that the town manager never called the required grievance hearing.

In the case at bar, there is no doubt that the Council adopted a "Personnel Policies and Procedures Manual." This was submitted to the plaintiff who signed it, indicating that he had read and understood it. There is no evidence that there was any intent by either party that the offering of the document by the Town and the reading and signing by the plaintiff was to create an employment contract. Plaintiff-Howell has not shown that the Manual was "expressly included within [his] terminable-at-will contract." Rosby, 91 N.C.App. at 81, 370 S.E.2d at 608. Nor has he shown that the Manual provided for discharge only "for cause." Harris v. Duke Power Co., 319 N.C. 627, 356 S.E.2d 357 (1987). Hence, the Town's Personnel Policies and Procedures Manual could not be considered as part of plaintiff's employment contract. Consequently, there is no breach of contract and summary judgment in favor of defendants on this issue is affirmed.

Plaintiff-Howell claims that summary judgment on his wrongful discharge claim was improper because the Manual was a lawfully adopted ordinance which provided procedures for discharge which were not followed. Plaintiff also implies that his discharge was due to bad faith by the town manager and three of the town council members. Where, as here, an employment manual was found not to be a part of an employment contract, plaintiff-Salt argued that her employer's personnel manual was an "independent unilateral contract made by defendant[-Applied Analytical] to her." Salt, 104 N.C.App. at 658, 412 S.E.2d at 100. Previously, this Court declined "to apply a unilateral contract analysis to the issue of wrongful discharge ... [because to do so] would, in effect, require us to abandon the 'at-will' doctrine which is the law in this State." Id. (citing Rucker v. First Union Nat. Bank, 98 N.C.App. 100, 103, 389 S.E.2d 622, 625, disc. rev. denied, 326 N.C. 801, 393 S.E.2d 899 (1990)). However, our Supreme Court has recognized two exceptions to the terminable-at-will doctrine. First, where plaintiff-employee is assured that he cannot be fired except for incompetence and "[w]here the employee gives some special consideration in addition to his services" then the additional consideration removes "plaintiff's employment contract from the terminable-at-will rule...." Sides v. Duke University, 74 N.C.App. 331 345, 328 S.E.2d 818, 828, disc. rev. denied, 314 N.C. 331, 333 S.E.2d 490 and disc. rev. denied, 314 N.C. 331, 335 S.E.2d 13 (1985) (citation omitted). Second, where an employment contract is terminated "for an unlawful reason or purpose that contravenes public policy," the contract is removed from within the terminable-at-will doctrine. Coman v. Thomas Mfg. Co., Inc., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989) (citation omitted), see Amos v. Oakdale Knitting Co., 331 N.C. 348, 416 S.E.2d 166 (May 8, 1992). Public policy was defined as "the principle of law which holds that no citizen can lawfully do that which has a tendency to be injurious to the public or against the public good." Coman, 325 N.C. at 175 n. 2, 381 S.E.2d at 447 n. 2. (citation omitted). In dicta, the Coman Court stated, "[b]ad faith conduct should not be tolerated in employment relations, just as it is not accepted in other commercial relationships." Id., at 177, 381 S.E.2d at 448; see also Amos. "[T]here is no independent tort action for wrongful discharge of an at-will employee based solely on allegations of discharge in bad faith." Salt, 104 N.C.App. at 662, 412 S.E.2d at 103; see also Amos.

In the case at bar, plaintiff-Howell has not alleged facts which fall within the exceptions to the "at-will" doctrine. Plaintiff has not shown that he provided any "additional consideration" other than his services. He has not alleged that his termination was due to an unlawful purpose or resulted from acts which contravene public policy. Further, plaintiff is unable to rely upon the theory of an "independent unilateral contract" or upon termination due to bad faith as neither of these theories is recognized in wrongful discharge actions. Though the manual set out grievance procedures it was not a part of plaintiff's employment contract. As in Salt, "plaintiff's employment relationship with defendant [Town] was not 'governed' by the policy manual given to [him]...." Salt, 104 N.C.App. at 664, 412 S.E.2d at 104. Therefore, defendants' failure to follow the grievance procedures does not constitute wrongful discharge. Summary judgment on this issue was properly granted.

Plaintiff-Howell claims the Town's failure to follow the Manual's grievance procedure violated his due process rights under the Fourteenth Amendment and Article 1, Section 19 of the North Carolina Constitution and constituted a violation of 42 U.S.C. §...