{ "id": 8523555, "name": "SYLVIA ADAIRE FOGL SALT v. APPLIED ANALYTICAL, INC.", "name_abbreviation": "Salt v. Applied Analytical, Inc.", "decision_date": "1991-12-17", "docket_number": "No. 915SC336", "first_page": "652", "last_page": "665", "citations": [ { "type": "official", "cite": "104 N.C. App. 652" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "12 ALR4th 544", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "weight": 2, "opinion_index": -1 }, { "cite": "33 ALR4th 120", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "weight": 2, "opinion_index": -1 }, { "cite": "168 Cal. Rptr. 722", "category": "reporters:state", "reporter": "Cal. Rptr.", "weight": 3, "year": 1980, "opinion_index": 0 }, { "cite": "111 Cal. App. 3d 443", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 6043571 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/cal-app-3d/111/0443-01" ] }, { "cite": "226 Mont. 69", "category": "reporters:state", "reporter": "Mont.", "case_ids": [ 5307809 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/mont/226/0069-01" ] }, { "cite": "772 F.Supp. 267", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3720169 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/f-supp/772/0267-01" ] }, { "cite": "767 F.Supp. 735", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3726469 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/f-supp/767/0735-01" ] }, { "cite": "765 F.Supp. 297", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7383241 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/f-supp/765/0297-01" ] }, { "cite": "388 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "326 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307411 ], "year": 1990, "pin_cites": [ { "page": "210", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0205-01" ] }, { "cite": "765 F.Supp. 293", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7383199 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "295-96" } ], "opinion_index": 0, "case_paths": [ "/f-supp/765/0293-01" ] }, { "cite": "68 N.C.L. Rev. 1178", "category": "journals:journal", "reporter": "N.C. L. Rev.", "pin_cites": [ { "page": "1192" } ], "opinion_index": 0 }, { "cite": "385 S.E.2d 498", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "325 N.C. 546", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2491716, 2492262, 2491956, 2491610, 2489499 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/325/0546-05", "/nc/325/0546-02", "/nc/325/0546-04", "/nc/325/0546-01", "/nc/325/0546-03" ] }, { "cite": "382 S.E.2d 836", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "840", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "95 N.C. App. 301", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 8524570 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "342" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0331-01" ] }, { "cite": "393 S.E.2d 899", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 801", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307844, 5304753, 5307091, 5306749, 5307806 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0801-01", "/nc/326/0801-02", "/nc/326/0801-05", "/nc/326/0801-03", "/nc/326/0801-04" ] }, { "cite": "389 S.E.2d 622", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "625" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 100", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522878 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/98/0100-01" ] }, { "cite": "393 S.E.2d 890", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 601", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5309098, 5308369, 5308874, 5304632 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0601-02", "/nc/326/0601-03", "/nc/326/0601-04", "/nc/326/0601-01" ] }, { "cite": "387 S.E.2d 80", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "97 N.C. App. 130", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519891 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/97/0130-01" ] }, { "cite": "360 S.E.2d 107", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 638", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723523, 4726053, 4726533, 4730695 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0638-02", "/nc/320/0638-03", "/nc/320/0638-01", "/nc/320/0638-04" ] }, { "cite": "354 S.E.2d 746", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "85 N.C. App. 281", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169838 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/85/0281-01" ] }, { "cite": "290 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "56 N.C. App. 801", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524594 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/56/0801-01" ] }, { "cite": "356 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1987, "pin_cites": [ { "page": "358" } ], "opinion_index": 0 }, { "cite": "319 N.C. 627", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4738632 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0627-01" ] }, { "cite": "344 S.E.2d 18", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 557", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4693913, 4704150, 4701941, 4693702 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0557-04", "/nc/316/0557-02", "/nc/316/0557-03", "/nc/316/0557-01" ] }, { "cite": "338 S.E.2d 617", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1986, "pin_cites": [ { "page": "618" }, { "page": "762" }, { "page": "620" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 758", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524088 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/78/0758-01" ] }, { "cite": "374 S.E.2d 590", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2563010, 2565451, 2563151, 2564880, 2560976 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0626-03", "/nc/323/0626-04", "/nc/323/0626-01", "/nc/323/0626-05", "/nc/323/0626-02" ] }, { "cite": "370 S.E.2d 605", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "608" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 77", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524411 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/91/0077-01" ] }, { "cite": "341 S.E.2d 39", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 597", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714275, 4718790, 4717073, 4719672, 4715545 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0597-02", "/nc/315/0597-01", "/nc/315/0597-03", "/nc/315/0597-04", "/nc/315/0597-05" ] }, { "cite": "335 S.E.2d 79", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1985, "pin_cites": [ { "page": "83-84" }, { "page": "83" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 253", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521759 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0253-01" ] }, { "cite": "182 S.E.2d 403", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 254", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566604 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0254-01" ] }, { "cite": "371 S.E.2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "91 N.C. App. 404", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525766 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/91/0404-01" ] }, { "cite": "381 S.E.2d 445", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1989, "pin_cites": [ { "page": "447" }, { "page": "448" }, { "page": "448" } ], "opinion_index": 0 }, { "cite": "325 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2488329 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "175" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0172-01" ] } ], "analysis": { "cardinality": 1187, "char_count": 30346, "ocr_confidence": 0.775, "pagerank": { "raw": 4.3065997037505286e-07, "percentile": 0.9169080900083364 }, "sha256": "d8f460ddc92cf3e155648d68591bcb57e3d48efa6d9b5f77773f4ba2c1b52551", "simhash": "1:dda1f562a62fab16", "word_count": 4862 }, "last_updated": "2023-07-14T22:39:04.224888+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Arnold and Lewis concur." ], "parties": [ "SYLVIA ADAIRE FOGL SALT v. APPLIED ANALYTICAL, INC." ], "opinions": [ { "text": "COZORT, Judge.\nPlaintiff employee brought an action for breach of employment contract and for wrongful discharge allegedly based on breach of implied covenant of good faith and fair dealing. The trial court granted summary judgment for defendant employer. We affirm.\nThe depositions and other materials in the record demonstrate that, in 1985, plaintiff was employed at Burroughs Wellcome Company in Greenville, North Carolina, as a chemist testing pharmaceutical products. She held 11V2 years of seniority, earned $22,000 a year, and received many company benefits. An employee of the defendant, Applied Analytical, Inc. (\u201cAAI\u201d), approached plaintiff about taking a chemist\u2019s position with AAI at a salary of $17,500-$18,500 per year. She declined the initial offers, but following negotiations, plaintiff accepted a position with defendant. One of the main topics discussed during the negotiations was plaintiff\u2019s need for job security. She informed defendant that if the job with AAI turned out to be unsatisfactory for either party, she would be unable to return to her job at Burroughs Wellcome, or any other pharmaceutical company, because she did not hold a four-year degree in chemistry. In response, the general manager at AAI discussed career growth with plaintiff and talked of plaintiff\u2019s future with the company in general terms. The letter from AAI\u2019s general manager confirming defendant\u2019s offer of employment stated:\nThis letter is to confirm in writing my verbal offer to you of a Chemist position at Applied Analytical Industries, with an initial annual salary of $17,500.00.\nAll of us at AAI are impressed with your qualifications and believe you can make significant contributions to our company. We hope you will accept our offer and believe you will find the position challenging and rewarding. As I indicated today during our telephone conversation, I believe the position which we are offering you will allow opportunities for your continued career growth in new areas involving method development for pharmaceutical dosage forms and bioanalytical assays for drugs in biological fluids.\nWe would appreciate a response to our offer by April 8, 1985.\nPlaintiff accepted defendant\u2019s offer and moved to Wilmington, North Carolina, where she began working for defendant in August 1985. In January, 1986, defendant granted plaintiff early tenure in the company, increased her salary by $2,000.00, and made her eligible for profit-sharing and a bonus. Plaintiff received positive evaluations from AAI supervisors after six months of employment, and again after one year with the company. On 14 November 1986, AAI\u2019s president, Frederick Sancilio, called plaintiff into his office and presented her with a letter of termination. The letter stated plaintiff was being discharged for low productivity and for bothering other employees. Plaintiff adamantly protested the grounds for termination, reluctantly signed the letter, packed her personal belongings, and left the same day.\nPlaintiff filed a complaint against defendant on 9 November 1988, alleging a claim for breach of contract. On 26 July 1989, the North Carolina Supreme Court handed down its decision in Coman v. Thomas Mfg. Co., Inc., 325 N.C. 172, 381 S.E.2d 445 (1989). Based on the Coman decision, plaintiff moved to amend her complaint on 7 September 1989 to include a tort claim for breach of implied covenant of good faith and fair dealing. Defendant\u2019s responsive pleadings included a motion for summary judgment. The trial court granted summary judgment for defendant on 18 January 1991, and plaintiff filed timely notice of appeal.\nThe question before the Court when reviewing a summary judgment motion 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 a material fact and that a party is entitled to judgment as a matter of law. N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (1990); Meadows v. Cigar Supply Co., 91 N.C. App. 404, 371 S.E.2d 765 (1988). We consider first whether the trial court properly granted summary judgment on plaintiff\u2019s breach of contract claim.\nIt is clear in North Carolina that, in the absence of an employment contract for a definite period, both employer and employee are generally free to terminate their association at any time and without any reason. Still v. Lance, 279 N.C. 254, 182 S.E.2d 403 (1971). This Court has held, however, that in some circumstances employee manuals setting forth reasons and procedures for termination may become part of the employment contract even where an express contract is nonexistent. Walker v. Westinghouse Electric Corp., 77 N.C. App. 253, 335 S.E.2d 79 (1985), disc. review denied, 315 N.C. 597, 341 S.E.2d 39 (1986).\nPlaintiff argues initially that defendant\u2019s personnel manual constituted part of her employment contract. She contends the contract was breached because defendant failed to follow the disciplinary procedure outlined in the manual. In her deposition, plaintiff testified she was given a copy of AAI\u2019s personnel manual on or about her first day of work at the company. Each employee, including plaintiff, was required to sign a statement verifying the receipt of the manual. Employees were also required to sign periodic verifications acknowledging they had read revisions to the manual. According to the defendant\u2019s manual, employees were classified as either \u201cprobationary\u201d or \u201ctenured.\u201d An employee would be classified as probationary for the first six months of satisfactory performance. The employee then is classified as a tenured employee.\nThe manual made no specific reference to \u201cemployment at-will.\u201d The section of the manual describing disciplinary procedures provided: \u201c[T]he Company reserves the right, with or without guideline notification to: Terminate an employee at any time. Suspend from work any employee . . . [or] [r]eturn to probationary status from tenured status any employee . . . .\u201d These rights were reserved for a \u201csevere violation\u201d of standards or rules by a \u201cpermanent\u201d or \u201ctenured\u201d employee. The handbook\u2019s illustrations of \u201csevere violations\u201d included, but were not limited to: \u201cblatant safety rule violations which endanger the health and safety of the employee and/or his fellow workers, falsification of Company records or data, misappropriation or misuse of Corporate assets, soliciting or engaging in outside activities of any kind or for any purposes on Company property at any time.\u201d For non-severe violations committed by a \u201ctenured\u201d employee, the manual provided for a verbal warning upon the first violation and written notices for the second and third violations. A tenured employee would be terminated after a fourth non-severe violation. Plaintiff contends she never received a verbal or written notice prior to termination, in violation of the prescribed disciplinary procedure.\nIt is clear that \u201cunilaterally promulgated employment manuals or policies do not become part of the employment contract unless expressly included in it.\u201d Walker, 77 N.C. App. at 259, 335 S.E.2d at 83-84. In Rosby v. General Baptist State Convention, 91 N.C. App. 77, 370 S.E.2d 605, disc. review denied, 323 N.C. 626, 374 S.E.2d 590 (1988), this Court found no breach of contract by an employer when the employer\u2019s personnel policies were not incorporated into the oral contract for employment. The plaintiff received the employment manual when he was hired, and was told it would be his \u201cwork bible.\u201d The manual included a salary scale, conditions of employment, expected conduct of employer and the employee, and procedures to be followed for disciplinary actions. Id. at 81, 370 S.E.2d at 608. The Rosby court stated:\nWhile we are sensitive to the \u201cstrong 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\u201d as enunciated in Westinghouse, supra, at 259, 335 S.E.2d at 83 (1985), we find that in the case sub judice, the material contained within the manual was neither inflexible nor all-inclusive on the issue of termination procedures. The manual, although presented as plaintiff\u2019s \u201cwork bible\u201d when he was hired, was not expressly included within his terminable-at-will contract.\nId.\nIn contrast, in Trought v. Richardson, 78 N.C. App. 758, 338 S.E.2d 617, disc. review denied, 316 N.C. 557, 344 S.E.2d 18 (1986), this Court held that plaintiff stated a claim for breach of contract based on her allegation that the employer\u2019s policy manual was part of her employment contract. There the plaintiff was required to sign a statement indicating she had read the defendant\u2019s policy manual which provided she could be discharged \u201cfor cause\u201d only and which stated that certain procedures must be followed in order for her to be discharged. Id. at 760, 338 S.E.2d at 618. The plaintiff alleged she was discharged without cause and without the benefit of the personnel manual procedures. Id. The Court concluded that \u201con hearing on a Rule 12(b)(6) motion the plaintiff has sufficiently alleged that the policy manual was a part of her employment contract which was breached by her discharge to survive her motion.\u201d Id. at 762, 338 S.E.2d at 620.\nIn Harris v. Duke Power Co., 319 N.C. 627, 356 S.E.2d 357 (1987), the North Carolina Supreme Court limited the rule in Trought to those specific facts. The plaintiff in Harris contended that his employment manual was part of his contract for employment with defendant and that he was entitled to recover for breach of contract when he was discharged in violation of the manual\u2019s provisions. Id. at 630, 356 S.E.2d at 358. The Court distinguished Trought, finding that Harris had not been told that he could be discharged only \u201cfor cause.\u201d Id. The Court also noted that the employment manual in Harris provided rules of conduct which were directed specifically toward management and not targeted at employees. Id.\nIt is clear from the evidence below that the handbook given plaintiff by defendant cannot be considered part of her original contract. As a result, plaintiff\u2019s breach of contract claim based on this theory must fail.\nPlaintiff next argues that the employment handbook was an independent unilateral contract made by defendant to her. She argues she is entitled to recover for defendant\u2019s breach of that unilateral contract. We disagree. North Carolina has recognized a unilateral contract theory with respect to certain benefits relating to employment. In Brooks v. Carolina Telephone, 56 N.C. App. 801, 290 S.E.2d 370 (1982), the Court found severance payments part of a unilateral contract. In Welsh v. Northern Telecom, Inc. 85 N.C. App. 281, 354 S.E.2d 746, disc. review denied, 320 N.C. 638, 360 S.E.2d 107 (1987), the court acknowledged vacation and retirement benefits. In White v. Hugh Chatham Memorial Hosp. Inc., 97 N.C. App. 130, 387 S.E.2d 80, disc. review denied, 326 N.C. 601, 393 S.E.2d 890 (1990), the Court accepted disability payments. However, in Rucker v. First Union Nat\u2019l Bank, 98 N.C. App. 100, 389 S.E.2d 622, disc, review\u25a0 denied, 326 N.C. 801, 393 S.E.2d 899 (1990), the Court declared, \u201cWe decline to apply a unilateral contract analysis to the issue of wrongful discharge. . . . [T]o apply a unilateral contract analysis to the situation before us would, in effect, require us to abandon the \u2018at-will\u2019 doctrine which is the law in this State. This we cannot do.\u201d Id. at 103, 389 S.E.2d at 625. We find Rucker to be dispositive in this case.\nPlaintiff next alleges she contributed additional consideration which would remove the contract from the scope of the employment at-will doctrine. In Sides v. Duke University, 74 N.C. App. 331, 328 S.E.2d 818, disc. review denied, 314 N.C. 331, 335 S.E.2d 13 (1985), this Court carved out a significant exception from the employment at-will rule. There the plaintiff did not have an employment contract and thus was employed at-will. The plaintiff\u2019s complaint alleged that she was assured by Duke she could be discharged only for \u201cincompetence,\u201d and these assurances induced her to move from Michigan to accept a job in Durham. Id. at 333, 328 S.E.2d at 821. The Court stated:\nGenerally, employment contracts that attempt to provide for permanent employment, or \u201cemployment for life,\u201d are terminable at will by either party. Where the employee gives some special consideration in addition to his services, such as relinquishing a claim for personal injuries against the employer, removing his residence from one place to another in order to accept employment, or assisting in breaking a strike, such a contract may be enforced. (Emphasis added.)\nId. at 345, 328 S.E.2d at 828 (quoting Burkhimer v. Gealy, 39 N.C. App. 450, 454, 250 S.E.2d 678, 682, disc. review denied, 297 N.C. 298, 254 S.E.2d 918 (1979)). The Court then determined:\nThe additional consideration that the complaint alleges, her move from Michigan, was sufficient, we believe, to remove plaintiff\u2019s employment contract from the terminable-at-will rule and allow her to state a claim for breach of contract since it is also alleged that her discharge was for a reason other than the unsatisfactory performance of her duties.\nId.\nWe find the facts below distinguishable from Sides. In Sides, the defendant assured the plaintiff \u201cboth at her job interview and again when the job was offered to her that nurse anesthetists at [the hospital] could only be discharged for incompetence.\u201d Id. at 333, 328 S.E.2d at 821. In the case at bar, the plaintiff cannot point to any specific assurances given to her which compare to the assurances given to the plaintiff in Sides that she would not be discharged except for \u201cincompetence.\u201d The assurances upon which plaintiff here bases her breach of contract theory do not contain any specific terms or conditions, as in Sides. Plaintiffs deposition reveals:\nQ. When you had your discussions with [the general manager], did you tell him that you would not take the job unless you understood that you had a permanent position there?\nA. Not in those particular words, but\u2014\nQ. What did you tell him?\nA. \u2014I feel like we established the fact that if I were leaving my job at Burroughs Wellcome then I was going into a job \u2014 well, he told me he felt like I could have some career growth there, that there were things that they wanted me to do in the future as far as their microbiology lab and at the time it didn\u2019t exist but they wanted me to help them with the microbiology lab.\nAnd, we just talked about things that were far into the future that I couldn\u2019t just go to work there and just do.\nAnd, he felt like I had a chance for some real career growth there and, you know, that it was for a permanent job.\nFurthermore, a reading of defendant\u2019s letter confirming plaintiff\u2019s employment indicates no assurances concerning the duration of plaintiff\u2019s employment or relating to the discharge policies of the company. The letter\u2019s reference to \u201ccontinued career growth\u201d does not suffice. Plaintiff can show no more than an offer of employment for an undetermined time. The trial court\u2019s entry of summary judgment on plaintiff\u2019s breach of contract claim was properly granted.\nWe now turn to the claims plaintiff raised by the amendment to her complaint. Plaintiff asserts a claim against defendant for breach of implied covenant of good faith and fair dealing implicit in her employment contract. Plaintiff contends that defendant breached its implied covenant of good faith and fair dealing by discharging plaintiff in violation of defendant\u2019s personnel policy, by breaching defendant\u2019s assurance of permanent employment and by communicating to third parties false reasons for discharging plaintiff. We conclude the trial court properly granted summary judgment on this claim.\nIn Coman v. Thomas Mfg. Co., Inc., 325 N.C. 172, 381 S.E.2d 445 (1989), the North Carolina Supreme Court created an exception to the employment at-will doctrine by authorizing a tort claim for wrongful discharge for an at-will employee whose discharge is in violation of a public policy. The Court specifically approved language from Sides v. Duke University, 74 N.C. App. 331, 328 S.E.2d 818, disc. review denied, 314 N.C. 331, 335 S.E.2d 13 (1985). The Court, quoting Sides, stated:\n[W]hile there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy. A different interpretation would encourage and sanction lawlessness, which law by its very nature is designed to discourage and prevent.\nComan, 325 N.C. at 175, 381 S.E.2d at 447 (quoting Sides, 74 N.C. App. at 342, 328 S.E.2d at 826). The Court defined public policy as being \u201cthe principle of law which holds that no citizen can lawfully do that which has a tendency to be injurious to the public or against the public good.\u201d Id. Coman therefore provides an exception to the employment at-will doctrine for employees who have been wrongfully discharged for an unlawful reason or for a reason which offends the public good.\nIn dicta, the Court, discussed the issue of firing an employee in bad faith:\nThis Court has never held that an employee at will could be discharged in bad faith. To the contrary, in Haskins v. Royster, 70 N.C. 601 (1874), this Court recognized the principle that a master could not discharge his servant in bad faith. Thereafter, this Court stated the issue to be whether an agreement to give the plaintiff a regular permanent job was anything more than an indefinite general hiring terminable in good faith at the will of either party. Malever v. Jewelry Co., 223 N.C. 148, 25 S.E.2d 436 (1943) (emphasis added).\nId. at 176-77, 381 S.E.2d at 448.\nThe Court also said, \u201cBad faith conduct should not be tolerated in employment relations, just as it is not accepted in other commercial relationships.\u201d Id. at 177, 381 S.E.2d at 448. The plaintiff here does not contend that she has a cause of action because her termination contravened any public policy. Instead, she argues that Coman created a cause of action based solely on \u201ca breach of the implied covenant of good faith and fair dealing.\u201d She contends the bad faith of the defendant is proven by defendant\u2019s disregarding its promise of a permanent job and by giving false reasons \u2014 poor performance \u2014 for her discharge. We do not find this evidence sufficient to sustain a tort claim for wrongful discharge.\nIn McLaughlin v. Barclays American Corp., 95 N.C. App. 301, 382 S.E.2d 836, disc. review denied, 325 N.C. 546, 385 S.E.2d 498 (1989), this Court discussed whether the plaintiff there had sufficiently alleged a claim based on bad faith discharge. The plaintiff alleged that he had been fired because he struck a subordinate on the face with his hand while defending himself from an attack by the subordinate. This Court said:\nAlong with the compelling public-policy concerns in those cases, moreover, the holdings in Sides and Coman are consistent with the principle that our courts do not give their imprimatur to employers who discharge employees in bad faith. ... We cannot say, however, that defendants\u2019 actions amounted to bad faith. Sides, in language quoted with approval by our Supreme Court, noted the employer\u2019s right to terminate an at-will contract for \u201cno reason, or for an arbitrary or irrational reason.\u201d The conduct of defendants in this case, in its worst light indifferent and illogical, does not demonstrate the kind of bad faith that prompted our courts to recognize causes of action in Sides and Coman.\nMcLaughlin, 95 N.C. App. at 306-07, 382 S.E.2d at 840 (citation omitted).\nThe question presented here is whether Sides, Coman, and McLaughlin, read together, create a separate tort action based exclusively on discharge in bad faith, where no contravention of public policy is alleged or proven. We hold that there is no independent tort action for wrongful discharge of an at-will employee based solely on allegations of discharge in bad faith. As many h\u00e1ve pointed out, the discussion of \u201cbad faith\u201d in Coman was pure dicta completely unnecessary to the Court\u2019s decision. See, e.g., Alford, Coman v. Thomas Manufacturing Co.: Recognizing a Public Policy Exception to the At-Will Employment Doctrine, 68 N.C.L. Rev. 1178, 1192. Both Coman and Sides involved violations of public policy. Our research has not discovered a single case from a North Carolina court which has allowed a claim of wrongful discharge based solely on the theory of bad faith.\nThe federal courts sitting in North Carolina and applying North Carolina law to this issue are split on whether to allow bad faith discharge claims independent of public policy violations. One federal court in the Eastern District has specifically rejected the idea of permitting such a claim. In English v. General Elec. Co., 765 F.Supp. 293 (E.D.N.C. 1991), the court refused to allow a plaintiff to maintain a bad faith discharge claim in the absence of an egregious public policy violation. The court reasoned:\nDespite plaintiff\u2019s assertion that North Carolina recognizes a cause of action for bad faith discharge, the court finds that the present position of the North Carolina courts is more limited. Currently, the judicially-created exception to the general rule that employees are terminable at will extends only to cases where the discharge violates some well established public policy.\nClearly, the Coman and McLaughlin decisions contain language which could arguably lead to the adoption of a good faith requirement for discharge in future cases. However, Coman and McLaughlin are grounded solely on the premise that North Carolina has created a public policy exception to the employment at-will doctrine, and any suggestion in those cases that there is a broader prohibition against discharges in bad faith is purely dicta. Although plaintiff argues that North Carolina courts would now recognize an exception to the employment at-will doctrine for bad faith discharges, the North Carolina Supreme Court in commenting on the effect of Coman stated that the employment at-will doctrine has \u201cbeen narrowly eroded by statutory and public policy limitations on its scope.\u201d Burgess v. Your House of Raleigh, 326 N.C. 205, 210, 388 S.E.2d 134 (1990) (emphasis added).\nEnglish, 765 F.Supp. 293, 295-96 (citations omitted). The same rationale was applied in. Percell v. Int\u2019l Business Machines, Inc., 765 F.Supp. 297 (E.D.N.C. 1991).\nCourts in the Middle District, however, have held that a bad faith exception to employment at will exists under certain circumstances. See, e.g., Iturbe v. Wandel & Goltermann Technologies, Inc., No. 90-CV-00242, (M.D.N.C. May 23, 1991); Riley v. Dow Corning Corp., et al., 767 F.Supp. 735 (M.D.N.C. 1991); Mayse v. Protective Agency, Inc., 772 F.Supp. 267 (1991). In Iturbe, the court upheld a plaintiff\u2019s claim for wrongful discharge based on two theories. First, the court allowed plaintiffs claim that she was wrongfully discharged in violation of the public policy against sex and ethnic discrimination. Second, the court ruled plaintiff had stated a claim of wrongful discharge based on bad faith where the defendant failed to follow personnel manual procedures when it discharged plaintiff,\nTo support its bad faith holding, the court in Iturbe discussed two cases cited in Coman which illustrated other jurisdictions\u2019 willingness to accept a bad faith exception to the employment at-will doctrine. Both cases allowed for a bad faith exception to employment at will where employees were fired in violation of written policy manuals. See Kerr v. Gibson\u2019s Products Co., 226 Mont. 69, 733 P.2d 1292 (1987); Cleary v. American Airlines Inc., 111 Cal. App. 3d 443, 168 Cal. Rptr. 722 (1980). The court in Iturbe found the plaintiff had stated an action where it was alleged that plaintiff\u2019s employers \u201chad a written procedure for layoffs in which job performance was the primary factor in determining which employees would be laid off and seniority was a determining factor in cases where job performance was considered to be equal.\u201d Iturbe, slip opinion at 13. The court denied the defendant\u2019s motion to dismiss for failure to state a cause of action, concluding the plaintiff \u201chas stated a claim that her termination was in violation of this written procedure. This is the type of bad faith discharge claim that the court believes the Coman and McLaughlin cases recognized.\u201d Id., slip opinion at 14.\nWe believe the opinion in the English case from the Eastern District is a more accurate analysis of North Carolina law. Moreover, assuming arguendo that our Supreme Court intended, as the Middle District Court in Iturbe believes, to create a separate wrongful discharge claim grounded solely on bad faith with no claim based on public policy violations, the plaintiff in the case at bar still cannot survive defendant\u2019s summary judgment motion. A footnote in Iturbe gives the rationale for the Court\u2019s decision: \u201cSince the court today only rules on the sufficiency of [plaintiff\u2019s] complaint, the court accepts as true [plaintiff\u2019s] allegations that the written procedure existed and that it somehow governed her employment relation with [defendants], or her termination.\u201d Id., slip opinion at 13 (emphasis added). As we stated earlier, plaintiff\u2019s employment relationship with defendant AAI was not \u201cgoverned\u201d by the policy manual given to her; the manual was not made an express part of her contract or made otherwise applicable to her. Therefore, even if we were to follow Iturbe's analysis of Coman and McLaughlin, plaintiff still has no cause of action because her termination was not governed by the employment manual. Plaintiff\u2019s allegations of bad faith, consisting of charges that defendant breached its assurance of permanent employment and that defendant communicated false reasons for firing plaintiff, simply have not been recognized, as sufficient to sustain a cause of action for wrongful discharge.\nTo summarize, plaintiff has failed to prove a claim for breach of contract because (1) the employment manual upon which her contract claim was based was not a part of her employment contract; (2) unilaterally promulgated employment manuals do not affect the at-will nature of employment in North Carolina; and (3) plaintiff\u2019s additional consideration, moving from Greenville to Wilmington, was not in exchange for assurances of discharge only for fault. As to the tort claim alleging wrongful discharge, North Carolina law does not allow claims of bad faith discharge in the absence of public policy violations. Assuming arguendo that such a claim is valid, plaintiff\u2019s evidence failed to prove that she has a claim for bad faith discharge.\nThe trial court\u2019s entry of summary judgment for defendant is\nAffirmed.\nJudges Arnold and Lewis concur.", "type": "majority", "author": "COZORT, Judge." } ], "attorneys": [ "Patterson, Harkavy, Lawrence, Van Noppen & Okun, by Martha A. Geer, for plaintiff appellant.", "Stevens, McGhee, Morgan, Lennon & O\u2019Quinn, by Robert A. O\u2019Quinn, for defendant appellee." ], "corrections": "", "head_matter": "SYLVIA ADAIRE FOGL SALT v. APPLIED ANALYTICAL, INC.\nNo. 915SC336\n(Filed 17 December 1991)\n1. Master and Servant \u00a7 10.2 (NCI3d)\u2014 employee discharge-violation of personnel manual \u2014no breach of contract\nThe trial court properly granted summary judgment for defendant employer on plaintiff\u2019s claim for breach of her employment contract based on defendant\u2019s failure to follow the disciplinary procedures outlined in its personnel manual when it terminated plaintiff\u2019s employment where the evidence before the court showed that the personnel manual cannot be considered as part of plaintiff\u2019s contract of employment.\nAm Jur 2d, Master and Servant \u00a7\u00a7 48.3, 48.5.\nRight to discharge allegedly \u201cat-will\u201d employee as affected by employer\u2019s promulgation of employment policies as to discharge. 33 ALR4th 120.\n2. Master and Servant \u00a7 10.2 (NCI3d)\u2014 employment handbook \u2014 no unilateral contract\nAn employment handbook does not constitute a unilateral contract which will give rise to a breach of contract action.\nAm Jur 2d, Master and Servant \u00a7\u00a7 48.3, 48.5.\nRight to discharge allegedly \u201cat-will\u201d employee as affected by employer\u2019s promulgation of employment policies as to discharge. 33 ALR4th 120.\n3. Master and Servant \u00a7 10.2 (NCI3d)\u2014 wrongful discharge \u2014 no additional consideration \u2014 employment at will applicable\nPlaintiff did not contribute additional consideration which would remove her employment from the scope of the employment at will doctrine where she failed to show that her move from Greenville to accept employment by defendant in Wilmington was induced by assurances concerning the duration of her employment or the discharge policies of defendant employer.\nAm Jur 2d, Master and Servant \u00a7\u00a7 32, 33.\n4. Master and Servant \u00a7 10.2 (NCI3d)\u2014 wrongful discharge \u2014 bad faith \u2014 insufficient allegations\nPlaintiff\u2019s allegations that defendant breached its covenant of good faith and fair dealing by disregarding its promise of a permanent job and by giving third parties false reasons for discharging plaintiff were insufficient to sustain a claim for wrongful discharge.\nAm Jur 2d, Master and Servant \u00a7 43.\nModern status of rule that employer may discharge at-will employee for any reason. 12 ALR4th 544.\n5. Master and Servant \u00a7 10.2 (NCI3d)\u2014 wrongful discharge \u2014 bad faith \u2014 necessity for public policy violation\nThere is no independent tort action for wrongful discharge of an at-will employee based solely on allegations of discharge in bad faith in the absence of a public policy violation. Furthermore, even if prior decisions created a wrongful discharge action based solely on bad faith in failing to follow personnel manual procedures, plaintiff has no cause of action against defendant because the policy manual given to her was not made an express part of her contract or made otherwise applicable to her, and her termination was not governed by the policy manual.\nAm Jur 2d, Master and Servant \u00a7\u00a7 48.3, 48.5, 48.7.\nModern status of rule that employer may discharge at-will employee for any reason. 12 ALR4th 544.\nAPPEAL by plaintiff from Order entered 22 January 1991 by Judge Herbert 0. Phillips, III, in NEW HANOVER County Superior Court. Heard in the Court of Appeals in Wilmington on 17 October 1991.\nPatterson, Harkavy, Lawrence, Van Noppen & Okun, by Martha A. Geer, for plaintiff appellant.\nStevens, McGhee, Morgan, Lennon & O\u2019Quinn, by Robert A. O\u2019Quinn, for defendant appellee." }, "file_name": "0652-01", "first_page_order": 680, "last_page_order": 693 }