Narron v. Hardee's Food Systems, Inc., 847DC1127

• Citation: 75 N.C.App. 579,331 S.E.2d 205
• Decision Date: 02 July 1985
• Docket Number: No. 847DC1127,847DC1127
• Court: North Carolina Court of Appeals
• Parties: , 110 Lab.Cas. P 55,989 Glen NARRON v. HARDEE'S FOOD SYSTEMS, INC.

Page 205

331 S.E.2d 205

75 N.C.App. 579, 110 Lab.Cas. P 55,989

Glen NARRON v. HARDEE'S FOOD SYSTEMS, INC.

No. 847DC1127.

Court of Appeals of North Carolina.

July 2, 1985.

Edelstein, Payne and Jordan by Steven R. Edelstein, Raleigh, for plaintiff-appellant.

Blakeney, Alexander & Machen by W.T. Cranfill, Jr. and John C. Miller, Charlotte, for defendant-appellee.

MARTIN, Judge.

This appeal involves the interpretation of the Wage and Hour Act, G.S. 95-25.1 et seq. The specific issue raised is whether plaintiff had accumulated unused vacation for which he was entitled to be paid upon his termination from employment, where the employer's personnel policy under which plaintiff earned the vacation did not provide for forfeiture thereof, but the policy in effect at the time of his termination provided for such forfeiture. Because the record reveals a genuine issue of fact as to whether plaintiff had earned and accumulated vacation under the former policy, we hold that the trial court erred in entering summary judgment for defendant.

We initially note that the judgment from which plaintiff appeals adjudicates "the rights and liabilities of fewer than all the parties" and expressly retains jurisdiction for the purpose of adjudication of defendant's counterclaim without a determination by the trial judge that "there is no just reason for delay" within the language of Rule 54(b) of the North Carolina Rules of Civil Procedure. Therefore, at first glance, this appeal may appear to be subject to dismissal as being from an interlocutory order and subject to dismissal as fragmentary and premature. G.S. 1A-1, Rule 54(b); Leasing, Inc. v. Dan-Cleve Corp., 25 N.C.App. 18, 212 S.E.2d 41 (1975); Arnold v. Howard, 24 N.C.App. 255, 210 S.E.2d 492 (1974). However, we believe that a "substantial right" of the plaintiff is affected by the granting of summary judgment, so that the order granting defendant's motion for summary judgment is appealable under G.S. 1-277 and G.S. 7A-27. See Nasco Equipment Co. v. Mason, 291 N.C. 145, 229 S.E.2d 278 (1976).

The question presented is whether the trial court erred in granting summary judgment for defendant. Summary judgment is proper where "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 any party is entitled to a judgment as a matter of law." G.S. 1A-1, Rule 56(c). In ruling on a motion for summary judgment, the trial judge does not decide issues of fact but merely determines whether a genuine issue of fact exists. Vassey v. Burch, 301 N.C. 68, 269 S.E.2d 137 (1980); Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972). "However, summary judgments should be looked upon with favor where no genuine issue of material fact is presented." Kessing v. Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971).

Applying this standard to the facts of this case, we find that summary judgment was inappropriately entered. The uncontradicted facts reveal that plaintiff commenced employment with defendant in November 1972. He managed one of defendant's restaurants in Greenville, North Carolina, from 15 August 1978 until February or March 1983, at which time he was transferred to Rocky Mount, North Carolina. At the end of April 1983, defendant discovered that deposits totalling $3,500.00 for the period of 23 February through 28 February 1983 were missing from the Greenville restaurant, formerly managed by plaintiff. After conducting an investigation, defendant suspended plaintiff without pay on 6 May 1983, and in November 1983, defendant converted plaintiff's suspension into a discharge due to "gross negligence with respect to company property."

Based upon corporate policies which became effective on or about 13 April 1983, defendant did not provide plaintiff with any vacation pay upon his discharge. Plaintiff received notice of these policies through the following memorandum, dated 13 April 1983, which was sent to all restaurant managers:

SUBJECT: Termination for Cause--Vacation Pay

I have been notified of a change in our current termination policy. The change is effective immediately and applies to any employee who is discharged for cause. The new procedure is that Hardee's will no longer pay unused vacation to any employee who has been justifiably "terminated for cause".... A new policy is currently being drafted to cover this and will be distributed sometime during the next few months.

Plaintiff denied taking or misappropriating the missing funds. Defendant refused to pay plaintiff his accumulated vacation pay, asserting that plaintiff was dismissed for cause.

The words of statutes should be given their ordinary meaning, unless it appears from the context, or otherwise in the statute, that a different sense was intended. Abernethy v. Commissioners, 169 N.C. 631, 86 S.E. 577 (1915). G.S. 95-25.12 of the Wage and Hour Act provides as follows:

No employer is required to provide vacation for employees. However, if an employer provides vacation for employees, the employer shall give all vacation time off or payment in lieu of time off in accordance with the company...