Smith v. Monsanto Co. , 71 N.C. App. 632 ( 1984 )

322 S.E.2d 611 (1984)

Lura S. SMITH
v.
MONSANTO COMPANY and Monsanto North Carolina, Inc.
Edith B. JOHNSON
v.
MONSANTO COMPANY and Monsanto North Carolina, Inc.

No. 8412SC338.

Court of Appeals of North Carolina.

December 4, 1984.

Carter & Melvin by Stephen R. Melvin and Lester G. Carter, Jr., Fayetteville, for plaintiffs, appellants.

Smith, Moore, Smith, Schell & Hunter by Martin N. Erwin and Michael A. Gilles, Greensboro, for defendants, appellees.

HEDRICK, Judge.

Plaintiffs contend the trial court erred in granting summary judgment for the defendant because a genuine issue of material fact exists as to whether defendant breached its contracts of employment with them. The employment contracts lacked a definite term and therefore were terminable at the will of either party. Still v. Lance, 279 N.C. 254, 182 S.E.2d 403 (1971). Plaintiffs' forecast of evidence indicates that defendant had a company policy, applicable to them, of providing employees subject to reduction in force with a choice between termination with severance pay or layoff with the possibility of recall for one year. Pursuant to company policy, defendant allowed plaintiffs to choose between termination and layoff. However, there is no evidence that plaintiffs contracted with defendant for the right to either termination with severance pay or layoff with the possibility of recall. This choice was a gratuitous benefit defendant conferred on plaintiffs after the parties had agreed on employment contracts which were terminable at will. This Court has previously held in similar circumstances that an employee has no contractual right on which to base a claim: "Defendant's personnel policies, which were amended after plaintiff was hired, were not expressly incorporated in plaintiff's contract, and without such inclusion defendant was not obligated to follow its personnel policies in dismissing plaintiff." Griffin v. Housing Authority, 62 N.C.App. 556, 557, 303 S.E.2d 200, 201 (1983). Thus plaintiffs had no right to recall and we need not decide if they presented evidence that defendant failed to recall them when it could have done so.

Plaintiffs also contend summary judgment was improper because their forecast of evidence tended to show that defendant should have been equitably estopped from defending on the basis that the contracts were terminable at will. In effect, plaintiffs argue that they surrendered their right to severance pay in response to defendant's deceiving statement that they might be recalled. Yet, as previously discussed, plaintiffs had no "right" to severance pay which they might have been deceived into surrendering. The employment contracts remained terminable at will, so plaintiffs never were deprived of any right. Finally, they have failed to show any evidence of deception on the part of the defendant. Plaintiffs freely made the choice between severance pay and layoff. Defendant offered only the possibility of recall based on seniority, and there was no evidence that laid off workers less senior than plaintiffs were recalled. Thus, the doctrine of equitable estoppel has no application to this case. See Hawkins v. Finance Corp., 238 N.C. 174, 177-78, 77 S.E.2d 669, 672 (1953).

Affirmed.

WEBB and HILL, JJ., concur.