{ "id": 5313316, "name": "WAYNE D. HOWELL, Plaintiff v. TOWN OF CAROLINA BEACH, NORTH CAROLINA, a body politic and incorporate, the TOWN OF CAROLINA BEACH BOARD OF COMMISSIONERS, DAVID SERRELL, in his individual and official capacities, and HUBERT VINCENT, PATSY R. EFIRD, and DOUGLAS BATSON, in their individual and official capacities, and ROBERT L. DOETSCH and EDWARD CHINNIS, in their official capacities, Defendants", "name_abbreviation": "Howell v. Town of Carolina Beach", "decision_date": "1992-06-16", "docket_number": "No. 915SC552", "first_page": "410", "last_page": "421", "citations": [ { "type": "official", "cite": "106 N.C. App. 410" } ], "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": "461 U.S. 138", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11298262 ], "weight": 23, "year": 1983, "pin_cites": [ { "page": "146" }, { "page": "719" }, { "page": "140" }, { "page": "715", "parenthetical": "citation omitted" }, { "page": "145" }, { "page": "719" }, { "page": "147-48" }, { "page": "720" }, { "page": "150" }, { "page": "722" }, { "page": "151-52" }, { "page": "723" }, { "page": "154" }, { "page": "724" }, { "page": "152" }, { "page": "723" }, { "page": "145" }, { "page": "719" } ], "opinion_index": 0, "case_paths": [ "/us/461/0138-01" ] }, { "cite": "428 F. Supp. 100", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3918757 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/f-supp/428/0100-01" ] }, { "cite": "349 S.E.2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 507", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4736704, 4734882, 4738767, 4739771, 4732061 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0507-03", "/nc/318/0507-02", "/nc/318/0507-01", "/nc/318/0507-05", "/nc/318/0507-04" ] }, { "cite": "342 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "80 N.C. App. 339", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523825 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/80/0339-01" ] }, { "cite": "426 U.S. 341", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6176818 ], "weight": 3, "year": 1976, "pin_cites": [ { "page": "344-45" }, { "page": "690" }, { "page": "2077-78" } ], "opinion_index": 0, "case_paths": [ "/us/426/0341-01" ] }, { "cite": "317 S.E.2d 678", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4679649, 4682146, 4682983, 4680616, 4682706 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0303-03", "/nc/311/0303-04", "/nc/311/0303-05", "/nc/311/0303-02", "/nc/311/0303-01" ] }, { "cite": "312 S.E.2d 917", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "924" } ], "opinion_index": 0 }, { "cite": "67 N.C. App. 198", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526055 ], "year": 1984, "pin_cites": [ { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/nc-app/67/0198-01" ] }, { "cite": "408 U.S. 564", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1782964 ], "weight": 3, "year": 1972, "opinion_index": 0, "case_paths": [ "/us/408/0564-01" ] }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "416 S.E.2d 166", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498595 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0348-01" ] }, { "cite": "381 S.E.2d 445", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "447", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "325 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2488329 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "175", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0172-01" ] }, { "cite": "335 S.E.2d 13", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "333 S.E.2d 490", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "314 N.C. 331", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686660, 4695653, 4695471, 4689718, 4689592 ], "weight": 2, "year": 1985, "pin_cites": [ { "parenthetical": "citation omitted" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0331-03", "/nc/314/0331-01", "/nc/314/0331-05", "/nc/314/0331-02", "/nc/314/0331-04" ] }, { "cite": "328 S.E.2d 818", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "828", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 331", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524570 ], "year": 1985, "pin_cites": [ { "page": "345", "parenthetical": "citation omitted" } ], "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", "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, "pin_cites": [ { "page": "103" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0100-01" ] }, { "cite": "356 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 627", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4738632 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0627-01" ] }, { "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" }, { "page": "608" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 77", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524411 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "81" }, { "page": "81" } ], "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, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "315 N.C. 597", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714275, 4718790, 4717073, 4719672, 4715545 ], "year": 1986, "pin_cites": [ { "parenthetical": "citation omitted" } ], "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", "year": 1985, "pin_cites": [ { "page": "83-84" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 253", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521759 ], "year": 1985, "pin_cites": [ { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0253-01" ] }, { "cite": "415 S.E.2d 200", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 119", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499683, 2498378, 2502026, 2501299, 2501692 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0119-05", "/nc/331/0119-01", "/nc/331/0119-03", "/nc/331/0119-04", "/nc/331/0119-02" ] }, { "cite": "412 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1991, "pin_cites": [ { "page": "99" }, { "page": "99" }, { "page": "100" }, { "page": "103" }, { "page": "104" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 652", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523555 ], "weight": 5, "year": 1991, "pin_cites": [ { "page": "655" }, { "page": "656" }, { "page": "658" }, { "page": "662" }, { "page": "664" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0652-01" ] }, { "cite": "309 S.E.2d 253", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 815", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4762404 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0815-01" ] }, { "cite": "303 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "657" } ], "opinion_index": 0 }, { "cite": "63 N.C. App. 151", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524430 ], "year": 1983, "pin_cites": [ { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/nc-app/63/0151-01" ] }, { "cite": "385 S.E.2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "325 N.C. 545", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2490592, 2492204, 2490927, 2491153, 2491093 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/325/0545-02", "/nc/325/0545-05", "/nc/325/0545-01", "/nc/325/0545-04", "/nc/325/0545-03" ] }, { "cite": "381 S.E.2d 175", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "94 N.C. App. 650", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527699 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/94/0650-01" ] } ], "analysis": { "cardinality": 1099, "char_count": 27226, "ocr_confidence": 0.75, "pagerank": { "raw": 2.495333585412488e-07, "percentile": 0.8089494792939665 }, "sha256": "e281e59e4e50d8493df899cb4ba6aa2d48b3f2c659a66c12deeb438d3fc43287", "simhash": "1:73e8143216450e5e", "word_count": 4344 }, "last_updated": "2023-07-14T19:35:11.401464+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Arnold and Cozort concur." ], "parties": [ "WAYNE D. HOWELL, Plaintiff v. TOWN OF CAROLINA BEACH, NORTH CAROLINA, a body politic and incorporate, the TOWN OF CAROLINA BEACH BOARD OF COMMISSIONERS, DAVID SERRELL, in his individual and official capacities, and HUBERT VINCENT, PATSY R. EFIRD, and DOUGLAS BATSON, in their individual and official capacities, and ROBERT L. DOETSCH and EDWARD CHINNIS, in their official capacities, Defendants" ], "opinions": [ { "text": "LEWIS, Judge.\nSummary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. N.C.G.S. \u00a7 1A-1, Rule 56; Bolick v. Townsend Co., 94 N.C. App. 650, 381 S.E.2d 175, disc. rev. denied, 325 N.C. 545, 385 S.E.2d 495 (1989). \u201cA defendant is entitled to summary judgment only when he can produce a forecast of evidence, which when viewed most favorably to plaintiff would, if offered by plaintiff at trial, without more, compel a directed verdict in defendant\u2019s favor, (citation omitted) or if defendant can show through discovery that plaintiff cannot support his claim (citation omitted).\u201d Coats v. Jones, 63 N.C. App. 151, 154, 303 S.E.2d 655, 657, affd, 309 N.C. 815, 309 S.E.2d 253 (1983). Therefore, we must consider each of plaintiff\u2019s claims, in the light most favorable to him, to determine if plaintiff\u2019s forecast of the evidence revealed any genuine issue of material fact. Before such discussion, we note that in his brief, plaintiff fails to argue his claims of intentional infliction of emotional distress, invasion of privacy, and defamation. Therefore, these claims are deemed abandoned pursuant to N.C.R. App. P. 28(b)(5) and we decline to address them.\nPlaintiff\u2019s claims for breach of employment contract and for wrongful discharge rely on his argument that the town\u2019s Personnel Policies and Procedures Manual takes him out of the employment-at-will category.\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. (Citation omitted). 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. (Citation omitted).\nSalt v. Applied Analytical, Inc., 104 N.C. App. 652, 655, 412 S.E.2d 97, 99 (1991), disc. rev. denied, 331 N.C. 119, 415 S.E.2d 200 (1992). Without more, \u201cunilaterally promulgated employment manuals or policies do not become part of the employment contract unless expressly included in it.\u201d Walker v. Westinghouse Elec. Corp., 77 N.C. App. 253, 259, 335 S.E.2d 79, 83-84 (1985), disc. rev. denied, 315 N.C. 597, 341 S.E.2d 39 (1986) (citation omitted).\nIn Salt, plaintiff filed suit against her employer for both breach of contract and wrongful discharge. Plaintiff-Salt argued that her employer\u2019s personnel manual, which she was required to sign to confer receipt, constituted part of her employment contract. By failing to follow the disciplinary procedure outlined in the manual, plaintiff-Salt alleged that the employment contract was breached. The manual classified employees as either probationary or tenured. In this manual, the employer specifically reserved the right to \u201c[terminate an employee at any time. Suspend from work any employee . . . [or] [r]eturn to probationary status from tenured status any employee. . . .\u201d Salt, 104 N.C. App. at 656, 412 S.E.2d at 99. Plaintiff-Salt could not show that the manual was \u201cexpressly included within [her] terminable-at-will contract.\u201d Rosby v. General Baptist State Convention of North Carolina Inc., 91 N.C. App. 77, 81, 370 S.E.2d 605, 608, disc. rev. denied, 323 N.C. 626, 374 S.E.2d 590 (1988). She also could not show that the manual provided for discharge only \u201cfor cause.\u201d Harris v. Duke Power Co., 319 N.C. 627, 356 S.E.2d 357 (1987). Therefore, we held that defendant-Applied Analytical\u2019s personnel manual could not be considered a part of plaintiff\u2019s employment contract. Summary judgment on the issue of breach of contract was, therefore, properly granted in favor of defendant-Applied Analytical.\nIn the case at bar, the Town imposed upon itself the requirements set out in its Personnel Policies and Procedures Manual. The parties agree that the Manual provides a grievance procedure: \u201cTo provide a means whereby any employee who feels that he/she has been subjected to unfair, discriminatory or abusive treatment may secure a hearing without delay and be assured of a prompt, orderly, and fair response to the griev\u00e1nce or appeal.\u201d Dismissals and suspensions are specifically set out as matters within the grievance procedure. The Manual requires a grievance hearing to take place within 25 days of the incident in question. Plaintiff filed the required written grievance request but the record indicates that the town manager never called the required grievance hearing.\nIn the case at bar, there is no doubt that the Council adopted a \u201cPersonnel Policies and Procedures Manual.\u201d This was submitted to the plaintiff who signed it, indicating that he had read and understood it. There is no evidence that there was any intent by either party that the offering of the document by the Town and the reading and signing by the plaintiff was to create an employment contract. Plaintiff-Howell has not shown that the Manual was \u201cexpressly included within [his] terminable-at-will contract.\u201d Rosby, 91 N.C. App. at 81, 370 S.E.2d at 608. Nor has he shown that the Manual provided for discharge only \u201cfor cause.\u201d Harris v. Duke Power Co., 319 N.C. 627, 356 S.E.2d 357 (1987). Hence, the Town\u2019s Personnel Policies and Procedures Manual could not be considered as part of plaintiff\u2019s employment contract. Consequently, there is no breach of contract and summary judgment in favor of defendants on this issue is affirmed.\nPlaintiff-Howell claims that summary judgment on his wrongful discharge claim was improper because the Manual was a lawfully adopted' ordinance which provided procedures for discharge which were not followed. Plaintiff also implies that his discharge was due to bad faith by the town manager and three of the town council members. Where, as here, an employment manual was found not to be a part of an employment contract, plaintiff-Salt argued that her employer\u2019s personnel manual was an \u201cindependent unilateral contract made by defendant[-Applied Analytical] to her.\u201d Salt, 104 N.C. App. at 658, 412 S.E.2d at 100. Previously, this Court declined \u201cto apply a unilateral contract analysis to the issue of wrongful discharge . . . [because to do so] would, in effect, require us to abandon the \u2018at-will\u2019 doctrine which is the law in this State.\u201d Id. (citing Rucker v. First Union Nat. Bank, 98 N.C. App. 100, 103, 389 S.E.2d 622, 625, disc. rev. denied, 326 N.C. 801, 393 S.E.2d 899 (1990)). However, our Supreme Court has recognized two exceptions to the terminable-at-will doctrine. First, where plaintiff-employee is assured that he cannot be fired except for incompetence and \u201c[w]here the employee gives some special consideration in addition to his services\u201d then the additional consideration removes \u201cplaintiff\u2019s employment contract from the terminable-at-will rule. ...\u201d Sides v. Duke University, 74 N.C. App. 331, 345, 328 S.E.2d 818, 828, disc. rev. denied, 314 N.C. 331, 333 S.E.2d 490 and disc, rev. denied, 314 N.C. 331, 335 S.E.2d 13 (1985) (citation omitted). Second, where an employment contract is terminated \u201cfor an unlawful reason or purpose that contravenes public policy,\u201d the contract is removed from within the terminable-at-will doctrine. Coman v. Thomas Mfg. Co., Inc., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989) (citation omitted), see Amos v. Oakdale Knitting Co., 331 N.C. 348, 416 S.E.2d 166 (1992). Public policy was defined as \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 Coman, 325 N.C. at 175 n.2, 381 S.E.2d at 447 n.2. (citation omitted). In dicta, the Coman Court stated, \u201c[b]ad 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; see also Amos. \u201c[T]here is no independent tort action for wrongful discharge of an at-will employee based solely on allegations of discharge in bad faith.\u201d Salt, 104 N.C. App. at 662, 412 S.E.2d at 103; see also Amos.\nIn the case at bar, plaintiff-Howell has not alleged facts which fall within the exceptions to the \u201cat-will\u201d doctrine. Plaintiff has not shown that he provided any \u201cadditional consideration\u201d other than his services. He has not alleged that his termination was due to an unlawful purpose or resulted from acts which contravene public policy. Further, plaintiff is unable to rely upon the theory of an \u201cindependent unilateral contract\u201d or upon termination due to bad faith as neither of these theories is recognized in wrongful discharge actions. Though the manual set out grievance procedures it was not a part of plaintiff\u2019s employment contract. As in Salt, \u201cplaintiff\u2019s employment relationship with defendant [Town] was not \u2018governed\u2019 by the policy manual given to [him] . . . .\u201d Salt, 104 N.C. App. at 664, 412 S.E.2d at 104. Therefore, defendants\u2019 failure to follow the grievance procedures does not constitute wrongful discharge. Summary judgment on this issue was properly granted.\nPlaintiff-Howell claims the Town\u2019s failure to follow the Manual\u2019s grievance procedure violated his due process rights under the Fourteenth Amendment and Article 1, Section 19 of the North Carolina Constitution and constituted a violation of 42 U.S.C. \u00a7 1983. The requirement of \u201cprocedural due process applies only to the deprivation of interests encompassed within the Fourteenth Amendment\u2019s protection of liberty and property. . . .\u201d Board of Regents of State Colleges v. Roth, 408 U.S. 564, 33 L.Ed. 2d 548, 92 S.Ct. 2701 (1972). We acknowledge that in the case before us, plaintiff\u2019s employment, which was terminable at will, in and of itself did not provide him with a Fourteenth Amendment property right or a vested interest in continued employment. See Burwell v. Griffin, 67 N.C. App. 198, 209, 312 S.E.2d 917, 924, disc. rev. denied, 311 N.C. 303, 317 S.E.2d 678 (1984). However, an enforceable interest in continued employment can be \u201ccreated by ordinance, or by an implied contract.\u201d Id. (citing Bishop v. Wood, 426 U.S. 341, 344-45, 48 L.Ed. 2d 684, 690, 96 S.Ct. 2074, 2077-78 (1976)). Here, the Manual, which was also a town ordinance, created the reasonable expectation of continued employment within the meaning of the due process clause. The Town\u2019s ordinance, in effect, is comparable to rights given State employees pursuant to N.C.G.S. \u00a7 126-35 (1991). That statutory provision delineates certain procedures relating to grievances and disciplinary actions with respect to State employees. Cases decided pursuant to N.C.G.S. \u00a7 126-35 have held the statute to create a reasonable expectation of employment and a property interest within the meaning of the Due Process Clause. See i.e., Leiphart v. North Carolina School of the Arts, 80 N.C. App. 339, 342 S.E.2d 914, cert. denied, 318 N.C. 507, 349 S.E.2d 862 (1986); Faulkner v. North Carolina Dept. of Corrections, 428 F. Supp. 100 (W.D.N.C. 1977).\nIn the present case, the facts do not suggest, nor do defendants argue that the Manual is inapplicable to plaintiff. The Manual was adopted as a town ordinance on 13 February 1979 and became effective 14 February 1979. The scope of the Manual covers \u201call employees of the Town.\u201d A permanent employee includes \u201c[a]n employee who has successfully completed his or her probationary period.\u201d A probationary employee is defined as \u201c[a]ny employee who has not successfully completed the required six (6) months probationary period immediately after being hired,\u201d except for police officers who must complete twelve months as a probationary employee. Plaintiff was sworn in as a police officer in the Town of Carolina Beach on 25 February 1982 and completed the requisite twelve (12) month probationary period. The Manual\u2019s provisions therefore apply directly to plaintiff.\nQuestions remain as to whether plaintiff received the process he was due. With respect to employee grievances, the personnel policy outlined detailed procedures, indicating:\nIt is the policy of the Town that all employees shall be treated fairly and consistently in all matters related to their employment. When an employee feels that he/she has not been so treated, he/she shall have the right to present a grievance or appeal free from interference, restraint, coercion, discrimination, or reprisal.\nThe Manual delineated specific procedures using a three-step process. Step One included an oral appeal by the employee to his or her immediate supervisor. Step Two required the employee to put the grievance into writing no later than ten (10) days following the incident leading to the grievance. Step Three of the process indicated, \u201c[t]he Town Manager shall personally conduct, or at his discretion, direct a Grievance Committee to conduct a grievance hearing not later than twenty-five (25) work days after the date of the incident or action which caused the grievance.\u201d As for the personnel policies associated with disciplinary procedure, the Manual indicated that a single act of insubordination \u201c[m]ay result in discharge after review and approval by the Town Manager; file to be documented as necessary.\u201d\nThe facts in this case demonstrate that following plaintiff\u2019s circulation of the firearm memorandum, the town manager verbally reprimanded him on 10 February 1988. At that time, plaintiff orally requested the town manager to reduce the reprimand to writing, but he refused. Later the same day, plaintiff submitted a written request to the town manager asking for a written reprimand which request was again refused. In a letter dated 17 February 1988, the town manager dismissed plaintiff. Defendants argue that plaintiff received all-the process that he was due and any hearing before the town manager \u201cwould have been an unnecessary exercise in futility on the part of the Town.\u201d However, based on these facts, it is evident plaintiff was not afforded the proper procedure pursuant to either the grievance policy or the disciplinary policy. Regardless of whether the town manager had the discretion to terminate plaintiff, he had the responsibility to provide plaintiff with a proper review which could have included a hearing. Consequently, summary judgment as to plaintiff\u2019s due process claim was improperly granted and is now reversed.\nPlaintiff\u2019s last allegation of error concerns his claim that defendants\u2019 action violated his First Amendment right to free speech. Defendants fired plaintiff for insubordination. Defendants claim that plaintiff\u2019s memorandum containing the language to the effect that the town manager would be liable for deaths in the line of duty should a policeman\u2019s weapon malfunction due to its age or its present state of disrepair was insubordinate behavior. During the verbal reprimand, defendants claim plaintiff became verbally abusive which was also insubordination. Plaintiff claims that he had a First Amendment right to draft the memorandum documenting the poor condition of the police department\u2019s firearms. Plaintiff insinuates that he was fired for campaigning against the mayor and a councilwoman which he claims also violates his right to free speech. The seminal case in this area is Connick v. Myers, 461 U.S. 138, 75 L.Ed. 2d 708, 103 S.Ct. 1684 (1983). Normally, government has \u201cwide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.\u201d Id. at 146, 75 L.Ed. 2d at 719. This broad discretion is curtailed when a decision to fire a government employee is made based upon an employee\u2019s expression on an issue of public concern: one of political, social or other concern to the community. Id. \u201c[A] public employee does not relinquish First Amendment rights to comment on matters of public [concern] by virtue of government employment.\u201d Id. at 140, 75 L.Ed. 2d at 715 (citation omitted). The test for determining whether plaintiff\u2019s expression was one of \u201clegitimate public concern\u201d is whether the matter is one in \u201cwhich free and open debate is vital to informed decisionmaking by the electorate.\u201d Id. at 145, 75 L.Ed. 2d at 719. The reviewing court must examine the employee\u2019s speech in light of the \u201ccontent, form [manner, time, place], and context of a given statement, as revealed by the whole record[]\u201d to determine whether it is a matter of public concern. Id. at 147-48, 75 L.Ed. 2d at 720.\nIf it is determined that the employee\u2019s expression does touch upon a matter of public concern and that it was one of the reasons for terminating this employee, then the court must determine whether the government employer was justified in discharging the employee. The government\u2019s burden of proving justification \u201cvaries depending upon the nature of the employee\u2019s expression.\u201d Id. at 150, 75 L.Ed. 2d at 722. The employee\u2019s constitutional rights are balanced against the \u201cgovernment\u2019s interest in effective and efficient fulfillment of its responsibilities to the public.\u201d Id. The essential question is whether plaintiff\u2019s expression impedes his or her ability to fulfill the responsibilities of the job. However, \u201c[w]hen close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer\u2019s judgment is appropriate.\u201d Id. at 151-52, 75 L.Ed. 2d at 723. Employers do not have to let the situation degenerate into a hostile working environment before taking action. The First Amendment does not require an employer to \u201ctolerate action which he reasonably believe[s] would disrupt the office, undermine his authority, and destroy close working relationships.\u201d Id. at 154, 75 L.Ed. 2d at 724. The more substantially the employee\u2019s speech touches or involves a matter of public concern, the stronger the showing and the heavier the burden is for the State to prove justification for terminating the plaintiff. Id. at 152, 75 L.Ed. 2d at 723.\nPlaintiff-Howell alleges that he was fired because of the memorandum he authored and because of his political activities. Our first determination must be whether the memorandum covers an issue of public concern. The question is whether this memorandum dealt with an issue upon which \u201cfree and open debate is vital to informed decisionmaking by the electorate.\u201d Id. at 145, 75 L.Ed. 2d at 719. Because members of the public are as likely as officers to be harmed by malfunctioning police firearms, we find that this issue is one of public concern.\nFurther, we evaluate the content, manner, time, place, and context in which the issue arose. Plaintiff alleges that the memorandum was written in accordance with his duties as a firearms instructor. We do not find the memorandum to be unreasonable as to form or context.\nAs the memorandum regards a matter of public concern, there remain two questions: whether plaintiff was fired due to the memorandum and, if so, whether the Town was so justified. The answer to these two questions require the determination of several issues of fact. Therefore, summary judgment on this issue was not properly granted. Plaintiff\u2019s allegations and the depositions of the council members indicate that there is a genuine issue of material fact as to whether plaintiff\u2019s political activities may have contributed to his termination. Plaintiff\u2019s forecast of the evidence presents a colorable claim that a constitutionally protected \u201cliberty interest\u201d (freedom of speech) encompassed by the Due Process Clause of the Fourteenth Amendment has been violated.\nSummary judgment as to the First Amendment claim and the Due Process claim is reversed. Summary judgment as to the other claims is affirmed.\nReversed in part.\nAffirmed in part.\nJudges Arnold and Cozort concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "A. A. Canoutas for plaintiff-appellant.", "Johnson and Lambeth, by Carter T. Lambeth and Maynard M. Brown, for defendants-appellees." ], "corrections": "", "head_matter": "WAYNE D. HOWELL, Plaintiff v. TOWN OF CAROLINA BEACH, NORTH CAROLINA, a body politic and incorporate, the TOWN OF CAROLINA BEACH BOARD OF COMMISSIONERS, DAVID SERRELL, in his individual and official capacities, and HUBERT VINCENT, PATSY R. EFIRD, and DOUGLAS BATSON, in their individual and official capacities, and ROBERT L. DOETSCH and EDWARD CHINNIS, in their official capacities, Defendants\nNo. 915SC552\n(Filed 16 June 1992)\n1. Appeal and Error \u00a7 418 (NCI4th)\u2014 claims not argued in brief \u2014 abandoned\nClaims of intentional infliction of emotional distress, invasion of privacy, and defamation arising from the termination of plaintiff\u2019s employment which were not argued in his brief were abandoned. N.C.R. App. P. 28(b)(5).\nAm Jur 2d, Appeal and Error \u00a7\u00a7 691, 693.\n2. Master and Servant \u00a7 10.2\u2014 employment termination \u2014breach of employment contract \u2014personnel manual not part of contract\nSummary judgment was properly .granted for defendants on a breach of employment contract claim where plaintiff contended that the town\u2019s Personnel Policies and Procedures Manual took him out of the employment at will category, but plaintiff did not show that the Manual was expressly included within his terminable at will contract or that the Manual provided for discharge only'for cause.\nAm Jur 2d, Master and Servant \u00a7\u00a7 14, 27, 32, 48.3.\n3. Master and Servant \u00a7 10.2 (NCI3d)\u2014 wrongful discharge \u2014 exceptions to employment at will not shown \u2014summary judgment for defendants\n\u2022 The trial court correctly granted summary judgment for defendants on a wrongful discharge claim based on failure to follow procedures in a personnel manual where the manual was found not to be part of the employment contract, and plaintiff did not allege facts which fall within the exceptions to the employment at will doctrine. Plaintiff did not show that he provided any additional consideration other than his services and did not allege that his termination was due to an unlawful purpose or resulted from acts which contravene public policy.\nAm Jur 2d, Master and Servant \u00a7\u00a7 14, 27, 32, 48.3.\n4. Constitutional Law \u00a7 105 (NCI4th) \u2014 personnel manual \u2014 town ordinance \u2014due process\nSummary judgment was improperly granted for defendants on plaintiff\u2019s due process claim where plaintiff was discharged as a Carolina Beach policeman and claimed that the Town\u2019s failure to follow the grievance procedure in its personnel manual violated his rights under the Fourteenth Amendment to the United States Constitution, Article 1, Section 19 of the North Carolina Constitution, and 42 U.S.C. 1983. Plaintiff\u2019s employment was terminable at will and did not in and of itself provide him with a Fourteenth Amendment property right or a vested interest in continued employment, but the Manual, which was also a town ordinance, created the reasonable expectation of continued employment within the meaning of the due process clause. Regardless of whether the town manager had the discretion to terminate plaintiff, he had the responsibility to provide plaintiff with a proper review which could have included a hearing.\nAm Jur 2d, Public Officers and Employees \u00a7 261.\n5. Constitutional Law \u00a7 115 (NCI4th)\u2014 free speech \u2014memo by police officer regarding malfunctioning weapons \u2014 employment terminated\nSummary judgment was improperly granted for defendants in an action in which plaintiff alleged that he was terminated as a police officer because he wrote a memo documenting the poor condition of the police department\u2019s firearms and because he campaigned against the mayor and a councilwoman. The issue is one of public concern because members of the public are as likely as officers to be harmed by malfunctioning police firearms and the memo, which plaintiff alleges was written in accordance with his duties as a firearms instructor, was not unreasonable as to form or context. The answer to questions of whether plaintiff was fired due to the memo and whether the Town was justified require the determination of issues of fact.\nAm Jur 2d, Public Officers and Employees \u00a7 223.\nAPPEAL by plaintiff from summary judgment issued 21 March 1991 by Judge E. Lynn Johnson in New HANOVER County Superior Court. Heard in the Court of Appeals 17 October 1991.\nPlaintiff was first hired as an auxiliary policeman for the town of Carolina Beach, but became a full time officer in 1982. Before beginning each position, plaintiff was required to read the town\u2019s \u201cPersonnel Policies and Procedures Manual\u201d (Manual). Plaintiff eventually rose to the rank of captain. On 4 January 1988, plaintiff drafted a memorandum to the chief of police which documented the malfunction of some of the police weapons. The chief issued a memorandum to the town manager, dated 8 January 1988, in which he requested funds to purchase new firearms. As justification for the purchase, the chief attached a copy of plaintiff\u2019s 4 January memorandum. The chief and town manager met on 8 January 1988, to discuss the issue of new weapons. It was at this meeting that the town manager ordered the chief, who in turn ordered plaintiff, to cancel the firearms order previously placed.\nOn 4 February 1988, a police training session led to a discussion concerning the frequent jamming and misfiring of the weapons then in use. The officers requested a letter of \u201cprotection\u201d be drafted to document the weapons\u2019 condition. On this same date, plaintiff drafted a memorandum to the chief of police outlining the inadequacy of a particular revolver which jammed after one or two rounds. Plaintiff concluded the memorandum with the following statement, \u201cI would hope that the Town Manager will realize by this memorandum that if one (1) of our officers is killed in the line of duty and it is found that his firearm will not properly function, the Town Manager will have to suffer the liability.\u201d A copy was circulated to all sworn officers.\nOn 10 February 1988, the town manager called plaintiff and the chief of police into his office. The town manager verbally reprimanded both officers. He refused to reduce the reprimand to writing despite requests from both officers. The only written record of the meeting was contained within a set of shorthand notes taken by the town manager\u2019s secretary during the meeting. Plaintiff\u2019s written request for a copy of these notes was denied. On 17 February 1988, plaintiff was discharged as a police officer because of\ngross insubordination to the Town Manager as a result of your circulating a memorandum concerning firearms which was personally demeaning to me as Town Manager and for your profane, rude and abusive language, and insolent behavior when being verbally reprimanded by me on February 10, 1988. In addition you attempted to physically intimidate me at this meeting which is inexcusable.\nSubsequent to his termination, on 18 February, plaintiff dispatched a written request for a hearing to the town attorney, to the town manager, to the mayor, and to the town board. The town manager responded that such a hearing was not necessary.\nOn 13 April 1988, plaintiff filed a civil action against the town, the town board, and the town manager for breach of employment contract, wrongful discharge, violations of free speech and due process, invasion of privacy, defamation and intentional infliction of emotional distress. Plaintiff sought compensatory and punitive damages. Summary judgment on all claims was granted in favor of defendants on 21 March 1991.\nA. A. Canoutas for plaintiff-appellant.\nJohnson and Lambeth, by Carter T. Lambeth and Maynard M. Brown, for defendants-appellees." }, "file_name": "0410-01", "first_page_order": 440, "last_page_order": 451 }