Black v. Western Carolina University

426 S.E.2d 733 (1993) 109 N.C. App. 209

Genie K. BLACK, Plaintiff,
v.
WESTERN CAROLINA UNIVERSITY, and John F. McCreary, in his official capacity and individual capacity, Defendants.

No. 9128SC899.

Court of Appeals of North Carolina.

March 2, 1993.

Van Winkle, Buck, Wall, Starnes and Davis, P.A. by Michelle Rippon, Asheville, for plaintiff-appellant.

Attorney Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen. Thomas J. Ziko, Raleigh, for defendants-appellees.

EAGLES, Judge.

Plaintiff contends that the trial court erred by entering summary judgment in favor of the defendants. We disagree.

The trial court's judgment is correct "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that [defendant] is entitled to a judgment as a matter of law." G.S. 1A-1, Rule 56(c); Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). "Summary judgment may not be granted if there is any genuine issue as to any material fact." Gray v. American Express Co., 34 N.C.App. 714, 715, 239 S.E.2d 621, 623 (1977).

Meadows v. Cigar Supply Co., Inc., 91 N.C.App. 404, 406, 371 S.E.2d 765, 766 (1988). "Where the terms [of a contract] are plain and explicit the court will determine the legal effect of a contract and enforce it as written by the parties." Church v. Hancock, 261 N.C. 764, 766, 136 S.E.2d 81, 83 (1964).

Plaintiff argues that because she was a full-time Assistant Professor in her second year of service, she was entitled to 180 days notice that she would not be reappointed to the WCU faculty. More specifically, she argues that "[t]he language of her employment contract together with provisions of the WCU Faculty Handbook and UNC Code which are incorporated into and form a part of her contract provide the basis for [her] position."

Initially, we disagree with plaintiff's assertion that the UNC Code was incorporated into her contract. "[T]he law of North Carolina is clear that unilaterally promulgated employment manuals or policies do not become part of the employment contract unless expressly included in it." Walker v. Westinghouse Electric Corp., 77 N.C.App. 253, 259, 335 S.E.2d 79, 83-84, disc. review denied, 315 N.C. 597, 341 S.E.2d 39 (1986) (citations omitted). Here, neither of the plaintiff's employment contracts expressly incorporated the provisions of the UNC Code. In fact, the only specific mention of the UNC Code found in her contracts is contained in paragraphs 8.c. and 8.g. However, neither the line adjacent to paragraph 8.c. nor the line adjacent to paragraph 8.g. was marked with an "X" to indicate that that provision became a part of the contract. Plaintiff also argues that the UNC Code was incorporated into her contract because the Foreword of the WCU Faculty Handbook states that "[i]t is designed to supplement ... The Code of the University of North Carolina[,]" which "contains the policies and operating procedures established by the Board of Governors of the University of North Carolina...." We find this argument equally unpersuasive. The Handbook's Foreword does not say that the UNC Code is incorporated. Rather, it merely states that the Handbook is designed to be a supplement to policies and operating procedures found in the UNC Code. If the drafters of the Handbook had intended to incorporate the provisions of the UNC Code, they would have done so specifically. Accordingly, we hold that the UNC Code was not expressly incorporated into the contract, and, therefore, it is not a part of the contract.

Plaintiff also appears to argue that because paragraph 8.g. was not marked with an "X" that Section III.B.3. was not incorporated into her employment contracts. Her argument overlooks the specific provisions of paragraph 4. of both years' employment contracts. Paragraph 4. expressly incorporates all the provisions of the WCU Tenure Policies and Regulations. The question remaining for decision, then, is whether Section III.B.3. or Section H.1. of the WCU Tenure Policies and Regulations controls the length of notice of nonreappointment that the plaintiff was entitled to receive. We hold that Section III. B.3. controls here.

Both of plaintiff's employment contracts specifically provide that her appointment was a "[f]ixed-term appointment for the employment period specified" in the contract. Section III.B.3. of the WCU Tenure Policies and Regulations, quoted above, is entitled "Fixed-Term Appointments[.]" That section provides that visiting faculty, adjunct faculty and other special categories of faculty "such as instructors, lecturers, artists-in-residence, [and] writers-in-residence" (emphasis ours) must receive fixed-term appointments, and that "the specification of the length of the appointment shall be deemed to constitute full and timely notice of the nonreappointment when the term expires. However, the list of faculty qualifying for fixed-term appointments in Section III.B.3. does not purport to be all inclusive. The appellee's brief correctly states that "[n]othing in the WCU Tenure Policies prohibits the university from employing faculty who hold other ranks, such as Assistant Professor, under ``fixed-term appointments.'" Moreover, we note that although Section H.1. does provide specific notice requirements in case of nonreappointment, its application is limited. The first sentence of Section H.1. makes clear that its provisions only apply to (1) full-time instructors whose appointment contract includes a provision that the appointment is subject to renewal and (2) probationary faculty members. Here, the plaintiff was hired at the rank of Assistant Professor not Instructor. Furthermore, in the contract form paragraph 8. of the contract form dealing with "Type of Appointment," paragraph 8.a. was marked and paragraph 8.b. was not marked with an "X" indicating the appointment was "fixed-term" and was not a probationary appointment. Accordingly, we conclude the plaintiff was not hired under a probationary appointment.

Finally, the plaintiff argues that the tenure policies and notice requirements of the American Association of University Professors are consistent with her position that she was entitled to more timely notice. However, those policies and notice requirements were not expressly incorporated into the plaintiff's contracts. Accordingly, they were not a part of the contract and do not affect disposition of this case. Walker v. Westinghouse Electric Corp., 77 N.C.App. 253, 259, 335 S.E.2d 79, 83-84, disc. review denied, 315 N.C. 597, 341 S.E.2d 39 (1986).

In sum, we conclude that the plaintiff negotiated for and was hired under a fixed-term appointment. As such, she was not entitled to notice of nonreappointment beyond the notice of the date of the expiration of her term found in the original contract. Accordingly, the trial court's entry of summary judgment in favor of the appellees is affirmed.

Affirmed.

ORR and JOHN, JJ., concur.