Martin v. Vance

• Decision Date: 04 May 1999
• Docket Number: No. COA98-649.,COA98-649.
• Court: North Carolina Court of Appeals
• Parties: Pamela A. MARTIN, Plaintiff, v. Jeffrey M. VANCE, Ronald Beauvais, and Duke University, Defendants.

514 S.E.2d 306

133 NC App. 116

Pamela A. MARTIN, Plaintiff, v. Jeffrey M. VANCE, Ronald Beauvais, and Duke University, Defendants.

No. COA98-649.

Court of Appeals of North Carolina.

May 4, 1999.

Baddour & Milner, PLLC, by Robert Terrell Milner, Chapel Hill, for plaintiff-appellee.

Fulbright & Jaworski, L.L.P., by John M. Simpson and Karen M. Moran, Washington, for defendants-appellants.

WALKER, Judge.

On 30 December 1997, plaintiff filed this action against her former employer, Duke University (Duke), and her former supervisors Jeffrey Vance (Vance) and Ronald Beauvais (Beauvais) alleging battery, intentional infliction of emotional distress, tortious interference with contract, and negligent retention. Plaintiff had been employed at Duke since 1990 as a nonexempt biweekly employee who was not covered by a collective bargaining agreement. This meant she was paid every two weeks and was subject to federal overtime restrictions. She was not employed for a fixed period of time and did not have a written employment contract. Since 5 February 1996, plaintiff had worked as Staff Assistant to Vance, an Associate Professor in Neurology at Duke University Medical Center. Beauvais was the Administrator of the Department of Neurology. Vance and Beauvais accused plaintiff of falsifying her time cards which led to her termination by Duke on 28 February 1997. As plaintiff gathered her belongings to leave, she alleges that Vance committed a battery upon her by standing in close proximity to her and then shoving her away from her computer. Plaintiff also alleges that during her employment with Vance she was subjected to a pattern of verbal abuse, insults, and humiliation that led to her diagnosis of clinical depression. Further, she alleges that Vance and Beauvais interfered with her "employment contract ... with Duke" by representing to her that Duke did not pay overtime but approved her use of "comp time" to make up for the extra hours that she had worked.

On 29 January 1997, prior to her termination, plaintiff requested a transfer to another department at Duke. The transfer/upgrade request form that plaintiff filed contained a certification which she signed. That certification read in part:

6. I hereby agree that any dispute or controversy arising out of or related to my employment or termination by Duke University shall be subject to final and binding resolution through the applicable grievance or dispute resolution procedure, as may be periodically amended and which is available upon request from the department of Human Resources.

The grievance procedure referred to in the certification was entitled the "Nonexempt (Biweekly) Employee Grievance Procedure" and was contained in the Duke University Personnel Policy Manual. The grievance procedure had been in place at Duke since 1994, and it called for an outside arbitrator to hear all grievances involving the involuntary termination of an employee such as plaintiff. Prior to the filing of her complaint, plaintiff availed herself of the grievance procedure and sought reinstatement through the internal portion of the process, proceeding to the "Second Step."

In response to plaintiff's complaint, defendants filed a motion to dismiss and a motion to stay these proceedings pending completion of arbitration. After a hearing on motions, the trial court made the following findings and conclusions:

FINDINGS OF FACT

1. Plaintiff was employed by Defendant Duke University during all times relevant to this action.

2. At no time did Plaintiff sign a written contract of employment with Duke University.

3. Plaintiff signed the document entitled Duke University Transfer/Upgrade Request which contained a clause referring to binding arbitration. Plaintiff never received the transfer she requested.

4. Duke University's Personnel Policy Manual is a unilaterally promulgated employment policy manual which outlines grievance procedures purporting to provide for the arbitration of certain disputes between Duke University and its employees.

CONCLUSIONS OF LAW

1. This Court has personal jurisdiction over the parties to this action, and subject matter jurisdiction over the claims asserted in this action.

2. Plaintiff was employed by Defendant Duke University as an employee-at-will during all times relevant to this action.

3. Pursuant to Walker v. Westinghouse Electric Corp., 77 N.C.App. 253, 335 S.E.2d 79 (1985), Duke University's unilaterally promulgated Personnel Policy Manual, submitted by Defendants as evidence of a contract between Duke University and Plaintiff to submit disputes such as those at issue in this action to binding arbitration, is not a part of Plaintiff's employment contract and is therefore not a contract as a matter of law.

4. The document entitled "Duke University Transfer/Upgrade Request" is not a contractual agreement in any sense, is not a part of Plaintiff's employment contract and is therefore not a contract as a matter of law.

The trial court denied defendants' motions to dismiss and to stay proceedings pending arbitration.

Ordinarily, this appeal would be interlocutory because it does not determine all of the issues between the parties and directs some further proceeding preliminary to a final judgment. Futrelle v. Duke University, 127 N.C.App. 244, 247, 488 S.E.2d 635, 638, disc. review denied, 347 N.C. 398, 494 S.E.2d 412 (1997). However, an order denying arbitration is immediately appealable because it involves a substantial right, the right to arbitrate claims, which might be lost if appeal is delayed. Burke v. Wilkins, 131 N.C.App. 687, 688-89, 507 S.E.2d 913, 914 (1998).

On appeal, defendants contend that the grievance procedure was a part of plaintiff's employment contract and that this was evidenced by her signing of the transfer/upgrade request. Plaintiff argues that the grievance procedure and policy manual were not part of her employment contract and that the transfer/upgrade request did not constitute a supplement to her employment contract because there was no mutuality of assent to the agreement and there was no voluntary waiver of plaintiff's rights to judicial process. At the outset, we note that "North Carolina has a strong public policy favoring the settlement of disputes by arbitration." Johnston County v. R.N. Rouse & Co., 331 N.C. 88, 91, 414 S.E.2d 30, 32 (1992). Our review confirms this position is consistent with other jurisdictions including "a liberal federal policy favoring arbitration agreements." Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). Our Supreme Court has held that where there is any doubt concerning the existence of an arbitration agreement, it should be resolved in favor of arbitration. R.N. Rouse & Co.,331 N.C. at 92,414 S.E.2d at 32. The validity of an arbitration agreement is determined by the application of basic contract law principles. Futrelle, 127 N.C.App. 244,488 S.E.2d 635; Doctor's Associates, Inc. v. Casarotto, 517 U.S. 681, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996).

The dispositive issue here is whether the plaintiff, in her contract of employment with Duke, agreed to arbitration of her claims in accordance with the procedure set forth in the Personnel Policy Manual.

The trial court in its denial of defendants' motion, cited Walker v. Westinghouse Electric Corp., 77 N.C.App. 253, 335 S.E.2d 79 (1985), disc. review denied, 315 N.C. 597, 341 S.E.2d 39 (1986) where the plaintiff employee alleged he was wrongfully discharged by his employer and claimed that an employee handbook was part of his employment contract which the employer had violated. Under the facts of that case, this Court held that the handbook was not part of the plaintiff's at-will employment contract. Id. There was no issue regarding how the dispute would be resolved. This Court quoted extensively from the employee handbook and concluded that the handbook "did not become an understanding binding on the employer." Id. at 260, 335 S.E.2d at 84. However, Walker is inapposite here as there is evidence beyond the promulgation of the policy manual that indicates the grievance procedure was made part of plaintiff's employment contract.

In this case, we examine a number of factors to determine if plaintiff's contract of employment included an agreement to arbitrate her claims. First, plaintiff had worked for Duke since 1990 and the Personnel Policy Manual containing the grievance procedure had existed since 1994. Also, in her complaint, plaintiff asserted she had a contract of employment with Duke although she denied in her affidavit the grievance procedure was ever explained to her. However, she does not claim that she was unaware of the grievance procedure, and, in fact, plaintiff availed herself of the grievance procedure and began proceedings prior to the initiation of this action. Further, plaintiff sought a transfer to another department and signed the transfer/upgrade request which contained an explicit certification that any dispute or controversy arising out of or related to her employment or termination by Duke would be subject to resolution through the applicable grievance or dispute resolution procedure.

An employment-at-will contract may be supplemented by additional agreements which are enforceable. Walker, 77 N.C.App. at 261, 335 S.E.2d at 84. Before a valid contract can exist, there must be a mutual agreement between the parties as to the terms of the contract. Normile v. Miller and Segal v. Miller, 313 N.C. 98, 326 S.E.2d 11 (1985)

. "If a question arises concerning a party's assent to a written instrument, the court must first examine the written instrument to ascertain the intention of the parties." Routh v. Snap-On Tools Corp., 108 N.C.App. 268, 273, 423 S.E.2d 791, 795 (1992). If the language of the contract is "clear and unambiguous," the court must interpret the...