Walker v. Westinghouse Elec. Corp., No. 8521SC95

• Docket Nº: No. 8521SC95
• Citation: 77 N.C.App. 253, 335 S.E.2d 79
• Case Date: October 15, 1985
• Court: Court of Appeal of North Carolina (US)

Page 79

335 S.E.2d 79 77 N.C.App. 253, 1 IER Cases 737 Robert E. WALKER
v.
WESTINGHOUSE ELECTRIC CORPORATION. No. 8521SC95. Court of Appeals of North Carolina. Oct. 15, 1985.

Badgett, Calaway, Phillips, Davis, Stephens, Peed & Brown by Herman L. Stephens, Winston-Salem, for plaintiff-appellant.

Womble Carlyle Sandridge & Rice by Charles F. Vance, Jr., Guy F. Driver, Jr. and M. Ann Anderson, Winston-Salem, for defendant-appellee.

EAGLES, Judge.

Plaintiff has abandoned his unfair and deceptive trade practices claim before this court. The crucial questions remaining before us are (1) did defendant discharge plaintiff in violation of its contract of employment with plaintiff and (2) did defendant wrongfully discharge plaintiff in violation of public policy? We answer both questions in the negative.

I

A party moving for summary judgment must establish that there is no genuine issue of material fact or that it has a complete defense as a matter of law. See Thomas v. Ray, 69 N.C.App. 412, 317 S.E.2d 53 (1984). The record must be viewed in the light most favorable to the non-movant, with all reasonable inferences therefrom. Sharpe v. Quality Education, Inc., 59 N.C.App. 304, [77 N.C.App. 259] 296 S.E.2d 661 (1982). The movant's papers are scrutinized with care, while the non-movant's are treated indulgently. Vassey v. Burch, 301 N.C. 68, 269 S.E.2d 137 (1980). We have examined the record in light of these principles.

II

In order to resolve the contract questions in this case, we first must determine what constituted the contract. Plaintiff contends that the contract included the Handbook; defendant contends in essence that the contract consisted merely of its agreement to pay plaintiff certain compensation for a certain amount of work, and that the Handbook did not become part of the contract. We are aware that a growing number of jurisdictions recognize that employee manuals purporting to set forth causes for termination may become part of the employment contract even in the absence of an express agreement. See Annot., 33 A.L.R. 4th 120, Section 4[a] (1984). Courts have reached this result on various grounds, including that the employer, by issuing the manual (as opposed to requiring employees to acknowledge that they may be terminated at any time) has assumed an obligation to terminate only for cause, see Toussaint v. Blue Cross & Blue Shield, 408 Mich. 579, 292 N.W.2d 880 (1980); that the employee, by not looking for other work in reliance on the corporate manual, gave consideration to make the manual part of the contract, see Wagner v. Sperry Univac, 458 F.Supp. 505 (E.D.Pa.1978), aff'd, 624 F.2d 1092 (3d Cir.1980) (mem.); or that the manual, having been promulgated after consultation with an employee committee, represented a contractual negotiating and bargaining process. See Wernham v. Moore, 77 A.D.2d 262, 432 N.Y.S.2d 711 (1980). We are also aware that there are strong equitable and social policy reasons militating against allowing employers to promulgate for their employees potentially misleading personnel manuals while reserving the right to deviate from them at their own caprice.

Nevertheless, the law of North Carolina is clear that unilaterally promulgated

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employment manuals or policies do not become part of the employment contract unless expressly included in it. Smith v. Monsanto Co., 71 N.C.App. 632, 322 S.E.2d 611 (1984); Griffin v. Housing Authority, 62 N.C.App. 556, 303 S.E.2d 200 (1983); Williams v. Biscuitville, Inc., 40 N.C.App. 405, 253 S.E.2d 18, disc. rev. denied, 297 N.C. 457, 256 S.E.2d 810 (1979); Cote v. [77 N.C.App. 260] Burroughs Wellcome Co., 558 F.Supp. 883 (E.D.Pa.1982) (applying North Carolina law). The contract did not, under our law, include the Handbook. Despite its apparent promise to "... become more than a handbook ... it will become an understanding ...," the Handbook did not become an understanding binding on the employer. III

Even if we were to assume arguendo that the Handbook had been part of plaintiff's contract of employment, it appears sufficiently well drafted that plaintiff nevertheless would be entitled to no relief. Though the Handbook does promise to "become more than a handbook ... it will become an understanding," and acknowledges "the responsibility of each management employee to fairly and consistently apply" the policies in it, supervisory personnel retain final discretionary authority in disciplinary matters. The Handbook says: "In disciplinary situations, the supervisor will exercise discretionary judgment in administering discipline, to take whatever action is necessary...." The Rules of Conduct expressly provide that they are not all-inclusive, and the described conduct simply "may result" in the various described disciplinary actions. While the Handbook appears to promise much, it contains little of substance to aid an employee being terminated. Accordingly we must reject plaintiff's claim that he is entitled to relief under the contract including the Handbook.

IV

A contract of employment which does not contain a specified term or fixed duration is ordinarily not enforceable. Still v. Lance, 279 N.C. 254, 182 S.E.2d 403 (1971). Since the Handbook was not a part of the contract, and the contract otherwise contained no specified term or duration, plaintiff worked as an employee at will. The contract could legally be terminated at any time at the will of either party. Id.; Nantz v. Employment Security Comm., 290 N.C. 473, 226 S.E.2d 340 (1976). There are certain limited exceptions to this rule.

A

If an employee gives some additional consideration in addition to the usual obligation of service, a contract for an indefinite term may become a contract for as long as the services are satisfactorily[77 N.C.App. 261] performed. Sides v. Duke Hospital, 74...