Brooks v. Carolina Telephone & Telegraph Co. , 56 N.C. App. 801 ( 1982 )

290 S.E.2d 370 (1982)

Gail M. BROOKS
v.
CAROLINA TELEPHONE AND TELEGRAPH COMPANY.

No. 8120SC795.

Court of Appeals of North Carolina.

April 20, 1982.

Pollock, Fullenwider, Cunningham & Patterson, P.A. by Bruce T. Cunningham, Jr., Southern Pines, for plaintiff-appellant.

Tally & Tally by John C. Tally, Fayetteville, for defendant-appellee.

WELLS, Judge.

In count one of her complaint, plaintiff has in effect alleged that her employment contract was breached. Although plaintiff did allege that she was wrongfully discharged, the closing paragraph in this count and her prayer for relief make it clear that she is seeking to recover not for wrongful discharge, but for failure of defendant to pay compensation earned during her employment. We quote, in pertinent part, as follows:

9. That the personnel administration policy for management employees provides for a termination allowance to any employee who is dismissed or induced to resign for unadaptability or inability to perform properly the duties of the job. That the Plaintiff would be entitled to thirty (30) weeks of termination allowance due to the fact that she had been employed for in excess of fifteen (15) years.

WHEREFORE, the Plaintiff prays that she have and recover of the Defendant a sum equal to thirty (30) weeks of the Plaintiff's salary as termination allowance, and that the costs of this action be taxed against the Defendant.

Pursuant to the allegation set out in her first count, plaintiff would be entitled at trial to show that her contract of employment with defendant entitled her to the termination pay she seeks to recover. Defendant's denial of plaintiff's allegations as to her entitlement to such pay puts this matter at issue. Summary judgment, pursuant to the provisions of G.S. 1A-1, Rule 56 of the Rules of Civil Procedure, may be entered only when the moving party has been able to show that there is no genuine issue as to any material fact remaining to be tried. Easter v. Hospital, 303 N.C. 303, 278 S.E.2d 253 (1981); Vassey v. Burch, 301 N.C. 68, 269 S.E.2d 137 (1980); Pitts v. Pizza, Inc., 296 N.C. 81, 249 S.E.2d 375 (1978); Savings & Loan Assoc. v. Trust Co., 282 N.C. 44, 191 S.E.2d 683 (1972); Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). In its affidavit in support of its motion for summary judgment, defendant has admitted plaintiff's employment in a management position and admitted that it had in effect a termination allowance applicable to management employees. Defendant's assertion, however, that such a provision was subject to changes or cancellation simply does not address the factual issue of whether plaintiff became entitled to such an allowance during and by reason of her employment. Such an employment contract provision, recognizably cancellable at will by an employer, would nevertheless operate to protect employees within its coverage during their employment and during the effective operation of such a provision. See e.g., Thomas v. College, 248 N.C. 609, 104 S.E.2d 175 (1958). Compare Briggs v. Mills, 251 N.C. 642, 111 S.E.2d 841 (1960). Defendant, in support of its position, relies on the decisions of our Supreme Court in Still v. Lance, 279 N.C. 254, 182 S.E.2d 403 (1971); Tuttle v. Lumber Co., 263 N.C. 216, 139 S.E.2d 249 (1964); and Howell v. Credit Corp., 238 N.C. 442, 78 S.E.2d 146 (1953); and the decision of this Court in Williams v. Biscuitville, Inc., 40 N.C.App. 405, 253 S.E.2d 18 (1979), disc. rev. denied, 297 N.C. 457, 256 S.E.2d 810 (1979). Those cases dealt with each employee's right to continued employment and did not deal with the issue of benefits or compensation earned during employment. Those cases are not apposite to the case now before us.

Summary judgment as to plaintiff's claim in Count One was erroneously entered and must be reversed.

In her second count, plaintiff seeks compensation for overtime pay. In its affidavit, defendant asserted that management employees were not entitled to overtime pay. In her affidavit, defendant admits that she was not entitled to such pay. Her allegations that defendant violated its overtime policy by giving male employees compensatory time off for overtime does not in this case state a cause of action in plaintiff's favor. Summary judgment was properly entered as to Count Two.

In her third count, plaintiff seeks to recover for mental anguish resulting from her wrongful discharge. Plaintiff has not alleged that her employment was for a fixed term. This is fatal to an action for wrongful discharge, it being settled law that employment for an indefinite term may be terminated at will by either the employer or the employee. Nantz v. Employment Security Comm., 290 N.C. 473, 226 S.E.2d 340 (1976); Still v. Lance, supra. Summary judgment was properly entered as to Count Three.

In her fourth count, plaintiff seeks to recover vacation pay. Liberally construed, count four sets out a claim for vacation pay earned during her employment. Defendant's affidavit does not address, much less rebut such a claim. For the reasons stated in our discussion of Count One, summary judgment was erroneously entered as to Count Four.

The result is:

As to the claims for relief set out in:

Count One, Reversed.

Count Two, Affirmed.

Count Three, Affirmed.

Count Four, Reversed.

HILL and BECTON, JJ., concur.