Tucker v. General Tel. Co. of the Southeast

• Decision Date: 16 December 1980
• Docket Number: No. 8014SC342,8014SC342
• Citation: 272 S.E.2d 911,50 N.C.App. 112
• Court: North Carolina Court of Appeals
• Parties: Douglas A. TUCKER v. GENERAL TELEPHONE COMPANY OF THE SOUTHEAST.

Page 911

272 S.E.2d 911

50 N.C.App. 112

Douglas A. TUCKER v. GENERAL TELEPHONE COMPANY OF THE SOUTHEAST.

No. 8014SC342.

Court of Appeals of North Carolina.

Dec. 16, 1980.

Maxwell, Freeman, Beason & Lambe, P. A. by James B. Maxwell, Durham, for plaintiff-appellant.

Newsom, Graham, Hedrick, Murray, Bryson & Kennon by William P. Daniell, Durham, for defendant-appellee.

WELLS, Judge.

Plaintiff's sole assignment of error is to the trial court's granting of defendant's motion for summary judgment. On motion for summary judgment, the question before the court is whether 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 a party is entitled to judgment as a matter of law. G.S. 1A-1, Rule 56(c); Page v. Sloan, 281 N.C. 697, 704, 190 S.E.2d 189, 193 (1972). The burden upon the moving party is to establish that there is no genuine issue as to any material fact remaining to be determined. Savings & Loan Assoc. v. Trust Co., 282 N.C. 44, 51-52, 191 S.E.2d 683, 688 (1972). This burden may be carried by a movant by proving that an essential element of the opposing party's claim is nonexistent or by showing through discovery that the opposing party cannot produce enough evidence to support an essential element of his claim. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 470, 251 S.E.2d 419, 421 (1979); Zimmerman v. Hogg & Allen, 286 N.C. 24, 29, 209 S.E.2d 795, 798 (1974). The purpose of summary judgment is to eliminate formal trials where only questions of law are involved by permitting penetration of an unfounded claim or defense in advance of trial and allowing summary disposition for either party when a fatal weakness in the claim or defense is exposed. Moore v. Fieldcrest Mills, Inc., supra; Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975). See also Gregory v. Perdue, Inc., 47 N.C.App. 655, 657, 267 S.E.2d 584, 586 (1980).

Plaintiff having asserted a cause of action for wrongful discharge or suspension of employment, and defendant having raised defenses to plaintiff's alleged cause of action, the question before the trial court on defendant's motion for summary judgment was whether defendant was successful in showing that plaintiff's claim was unfounded or had a fatal weakness.

In support of its motion, defendant presented the affidavit of F. C. White, defendant's vice president for personnel. White's affidavit stated that plaintiff was suspended from his position with defendant because plaintiff failed to cooperate with a company investigation, plaintiff had felony charges pending against him and adverse publicity was being generated by those charges, and plaintiff failed to comply with instructions by leaving his assigned work site without informing his supervisor. White also stated that at the time plaintiff was suspended there was a collective bargaining agreement in effect between defendant and the International Brotherhood of Electrical Workers, Local 289, and that plaintiff was a member of that union. Although White stated that certain articles of the collective bargaining agreement were attached to his affidavit as an exhibit, these articles were not included in the record on appeal.

Defendant also presented the deposition of plaintiff, in which he testified in pertinent part as follows:

I filed this Complaint alleging that I had been wrongfully discharged or suspended by General Telephone Company after I had been arrested by the Durham Police officers for Unlawfully and Wilfully Receiving Stolen Property. I filed suit because I didn't do anything wrong. I am a member of a union and am aware that there is a union contract at GTE. I followed four steps of the Grievance Procedure, which included an arbitration hearing. The arbitrator's award did not require GTE to rehire me.

At the time I was a PBX installer with GTE, which is basically, private business telephone exchanges. They are in banks and computer communications. We are able to pull up accounts by this system at various terminals within a bank.

In addition, I had worked on telephone lines at the police department and specifically, the police information network.... In my position I had authority to go into the main switchline at GTE's offices downtown and I had access to the police station's central communication office through security.

There are many burglar alarm systems in private homes around Durham that in some form do go through the central communications room at the police department and as a PBX installer, I had access to the room where those terminals were involved. I could monitor telephone conversations or telephone lines. If you are able to acquire access to the police communication network, you could monitor all telephone lines coming into the police department.

... There were some articles in the Durham Morning Herald concerning the Bills of Indictment which were secretly entered and the articles discusses (sic) the arrest of my brother and myself and our operation of TNT Auto Sales. There was also an article in Durham Sun.... The article in the Sun also indicated that the FBI was conducting a ten-state investigation involving myself and my brother.

My supervisor and M. B. Henry first came to see me after the arrest when I was at Star Buick. They wanted to go to my car and have a little meeting. I refused to talk with them at that time....

Earlier that day I had been to Stem, North Carolina. I had been assigned to go to Star Buick but I had found they didn't need my services and so I was helping another routeman find a better route to go to Stem to work on Public Service's meter service out there. I don't believe I let my supervisor know where I was going at that time. I do not generally do this, but once in a blue moon, I do. I travel so much that there is no way I can stop to call my supervisor and tell him exactly where I have to go. I don't believe I ever told another employee that I had gone to Stem at that time. I had a paging system and am paged continually by the company. I believe that I told somebody at the time I went to Stem, "Man, if they want me, tell them I ain't here." They paged the man I was with and asked for me and I told them (sic) to tell them that I wasn't there, because it was almost 4:30 when I was anticipating getting back to work and I didn't intend to work past 4:30. I do not remember discussing that incident with the representatives at GTE at the first meeting. I do understand that they gave the other employee a reprimand for telling the paging service that he hadn't seen me.

... (T)he company told me there had been adverse publicity as a result of my arrest. They indicated to me that they were going to suspend me and that one of the reasons for this was the adverse publicity. I believe another reason they were going to suspend me was because of the indictment...