Paschal v. Myers
| Decision Date | 17 March 1998 |
| Docket Number | No. COA97-193,COA97-193 |
| Citation | 497 S.E.2d 311,129 N.C.App. 23 |
| Court | North Carolina Court of Appeals |
| Parties | Kyle R. PASCHAL, Plaintiff, v. Jerry D. MYERS, Personally and in his Official Capacity as County Manager of Rockingham County, North Carolina; W. Wayne Garrison, Personally and in his Official Capacity as Director of Rockingham County Emergency Medical Services; and Rockingham County, a Political Subdivision of the State of North Carolina, Defendants. |
Appeal by plaintiff from order entered 31 October 1996 by Judge Melzer A. Morgan, Jr. in Rockingham County Superior Court. Heard in the Court of Appeals 8 October 1997.
Puryear and Lingle, P.L.L.C. by David B. Puryear, Jr., Greensboro, for plaintiff-appellant.
Womble, Carlyle, Sandridge & Rice, a Professional Limited Liability Company by James R. Morgan, Jr., Winston Salem, for defendants-appellees.
Plaintiff Kyle R. Paschal filed this wrongful termination action on 22 November 1995 against defendants Jerry D. Myers, W. Wayne Garrison, and Rockingham County. In his complaint, plaintiff alleged that he had been terminated from permanent employment with defendant County in violation of his contractual and statutory rights not to be discharged except for adequate cause, in violation of the procedural rights accorded him by the Rockingham County personnel ordinance, in violation of the state personnel records privacy law, and in violation of his due process rights under the Law of the Land Clause of the North Carolina Constitution. Defendants filed their answer on 26 December 1995, denying the material allegations of plaintiff's complaint, and asserting affirmative defenses including governmental and official immunity, failure to exhaust administrative remedies, and failure to mitigate damages. Thereafter, on 12 September 1996, defendants filed a motion for summary judgment. This motion was heard by Judge Melzer A. Morgan, Jr. during the 11 October 1996 civil session of Rockingham County Superior Court.
The evidence tends to show that plaintiff had been employed by defendant County with its Emergency Medical Service (hereinafter "EMS") as an emergency medical technician-paramedic since August 1992. In June 1993, plaintiff became a full-time, non-probationary employee of defendant County. At all times during plaintiff's employment, defendant County had an established employment policy, which had been enacted as an ordinance of Rockingham County.
On 20 May 1995, plaintiff fractured the little finger on his right hand. On 22 May 1995, plaintiff completed a North Carolina Industrial Commission Form 19 (hereinafter "I.C. Form 19"), indicating that he had been injured during and in the course of employment. This form was submitted to an EMS officer on or about 1 June 1995.
Upon receiving a copy of this form, plaintiff's immediate supervisor, Lisa King, asked EMS Training Officer, Phyllis Paschall, to investigate plaintiff's statement that he had been injured during and in the course of employment. King told Paschall that plaintiff had previously indicated that he had hurt his finger while vacuuming, but had told other EMS employees that he had injured his finger during and in the course of employment, in accordance with the statement on the I.C. Form 19 injury report.
Plaintiff met with Paschall and King on 1 June 1995, and was suspended from employment pending investigation of King's allegations that plaintiff had falsified the I.C. Form 19 injury report. Subsequently, Paschall took the statements of several of plaintiff's co-workers, who confirmed King's version of the cause of plaintiff's injury. These witnesses stated that they had heard plaintiff tell King, during a telephone conversation, that he had injured his finger while vacuuming. Paschall also listened to a C-Comm tape of plaintiff's telephone calls on the evening of 20 May 1995, during which plaintiff discussed the cause of his injury. As a result of the information obtained during her investigation, on 5 June 1995, Paschall executed a written notice of termination discharging plaintiff from employment. The reasons for termination stated therein included falsification of a county record for profit, and discourteous treatment of another county employee. Plaintiff has at all times denied telling King that he had injured himself while vacuuming. Moreover, plaintiff contends that he never had notice of any problems with his job performance, specifically, in reference to discourteous treatment of another county employee before termination.
On 13 June 1995, plaintiff submitted a written request for review of his termination to the Director of Rockingham County EMS, defendant W. Wayne Garrison. Defendant Garrison held a conference on this matter on 8 August 1995. Upon review of the evidence utilized by Paschall in making her decision, defendant Garrison issued a ruling on 14 August 1995, upholding plaintiff's dismissal for the reasons stated in Paschall's 5 June 1995 notice of termination. Defendant Garrison concluded that dismissal was proper because plaintiff's alleged misrepresentation of the cause of his finger injury indicated that plaintiff "may lie about giving medicine."
Thereafter, plaintiff requested a hearing before defendant Jerry D. Myers, Rockingham County Manager. Defendant Myers conducted a full, evidentiary hearing in this matter on 3 October 1995, and, on 27 October 1995, issued a ruling upholding plaintiff's termination. Therein, defendant Myers found that plaintiff had injured his finger on 20 May 1995 during a violent altercation with a guest of the department, Amanda West, resulting in their both having to receive medical treatment; that this altercation led to plaintiff's injury; and that plaintiff made a conscious effort to mislead his supervisors as to the cause of his injury.
After reviewing all of the evidence before him, Judge Morgan entered an order granting defendants' motion for summary judgment. Plaintiff appeals.
Plaintiff brings forth but one assignment of error on appeal, by which he argues that the trial court erred in granting defendants' motion for summary judgment. For the reasons discussed herein, we cannot agree, and accordingly, affirm the decision of the trial court.
Summary judgment is properly granted if, viewing the evidence in the light most favorable to the non-movant, there is no genuine issue of material fact, and any party is entitled to judgment as a matter of law. N.C.R. Civ. P. 56. The moving party bears the burden of showing a lack of issue of triable fact, and may meet this burden by showing the non-moving party cannot prove the existence of an essential element of his claim or cannot surmount an affirmative defense which would bar the claim. Messick v. Catawba County, 110 N.C.App. 707, 712, 431 S.E.2d 489, 492-93 (citing Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 62-63, 414 S.E.2d 339, 342 (1992)), disc. review denied, 334 N.C. 621, 435 S.E.2d 336 (1993).
First, plaintiff contends that his contract of employment was governed by the County's personnel policies included in its Employee Handbook. As those policies were properly a part of plaintiff's contract of employment, plaintiff asserts that there are disputed issues of fact as to whether defendants carried out his suspension and dismissal in breach of his contract of employment.
Irrefutably, North Carolina caselaw mandates that in the absence of an employment contract for a definite period, the employment is presumed to be "at will," terminable at the will of either employer or employee. Soles v. City of Raleigh Civil Service Comm., 345 N.C. 443, 446, 480 S.E.2d 685, 687, reh'g denied, 345 N.C. 761, 485 S.E.2d 299 (1997). Our Supreme Court has recognized two exceptions to the terminable-at-will doctrine: (1) "where plaintiff-employee is assured that he cannot be fired except for incompetence and 'where the employee gives some special consideration in addition to his services,' " Howell v. Town of Carolina Beach, 106 N.C.App. 410, 416, 417 S.E.2d 277, 280 (1992) () (alteration in original); and (2) "where an employment contract is terminated 'for an unlawful reason or purpose that contravenes public policy.' " Id. at 416, 417 S.E.2d at 281 (quoting Coman v. Thomas Manufacturing Co., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989)). Additionally, "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," so as to negate the terminable-at-will doctrine. Salt v. Applied Analytical, Inc., 104 N.C.App. 652, 655, 412 S.E.2d 97, 99 (1991) (), cert. denied, 331 N.C. 119, 415 S.E.2d 200 (1992). Notably, however, " 'unilaterally promulgated employment manuals or policies do not become [a] part of the employment contract, unless expressly included [therein].' " Howell, 106 N.C.App. at 414, 417 S.E.2d at 279 (quoting Walker, 77 N.C.App. at 259, 335 S.E.2d at 83-84).
In the instant case, plaintiff was a non-probationary, permanent employee for an indefinite term, i.e., an at-will employee. Further, plaintiff's case does not come within any of the public policy exceptions to the terminable-at-will doctrine. Plaintiff has not presented any evidence to show that the County's Employee Handbook was given to him at the time of his employment, that he had to sign indicating its receipt and his understanding of the Handbook's contents, or any other evidence that the Handbook's personnel policies had been made a part of his employment contract. Plaintiff maintains, however, the mere fact that...
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