{ "id": 8520634, "name": "THOMAS H. PRIVETTE v. UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, DAVID S. JANOWSKI, in his individual and official capacities, and AMIR S. RESVANI, in his individual and official capacities", "name_abbreviation": "Privette v. University of North Carolina at Chapel Hill", "decision_date": "1989-11-07", "docket_number": "No. 8815SC1217", "first_page": "124", "last_page": "139", "citations": [ { "type": "official", "cite": "96 N.C. App. 124" } ], "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": "42 U.S.C. \u00a7 1988", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": -1 }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "opinion_index": -1 }, { "cite": "323 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2563010, 2565451, 2563151, 2564880, 2560976 ], "year": 1988, "pin_cites": [ { "parenthetical": "employment manual not part of employment contract unless expressly included" } ], "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", "year": 1988, "pin_cites": [ { "page": "608", "parenthetical": "employment manual not part of employment contract unless expressly included" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 77", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524411 ], "year": 1988, "pin_cites": [ { "page": "81", "parenthetical": "employment manual not part of employment contract unless expressly included" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0077-01" ] }, { "cite": "356 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "359" } ], "opinion_index": 0 }, { "cite": "319 N.C. 627", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4738632 ], "year": 1987, "pin_cites": [ { "page": "629" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0627-01" ] }, { "cite": "333 S.E.2d 490", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 331", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686660, 4695653, 4695471, 4689718, 4689592 ], "year": 1985, "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", "weight": 6, "year": 1985, "pin_cites": [ { "page": "823" }, { "page": "826" }, { "parenthetical": "employee-at-will's employment can be terminated for \"arbitrary or irrational reason\"" }, { "page": "829" }, { "page": "829", "parenthetical": "complaint must admit of no other motive for interference other than malice" }, { "page": "830" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 331", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524570 ], "weight": 5, "year": 1985, "pin_cites": [ { "page": "336" }, { "page": "342" }, { "page": "347" }, { "page": "346" }, { "page": "348" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0331-01" ] }, { "cite": "222 S.E.2d 412", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "431", "parenthetical": "in breach of contract claim, only principal, not agents, are liable for breach" } ], "opinion_index": 0 }, { "cite": "289 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569569 ], "year": 1976, "pin_cites": [ { "page": "332", "parenthetical": "in breach of contract claim, only principal, not agents, are liable for breach" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0303-01" ] }, { "cite": "176 S.E.2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "163", "parenthetical": "unwarranted deductions of facts are not admitted" } ], "opinion_index": 0 }, { "cite": "277 N.C. 94", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561932 ], "year": 1970, "pin_cites": [ { "page": "98", "parenthetical": "unwarranted deductions of facts are not admitted" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0094-01" ] }, { "cite": "347 S.E.2d 743", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "745" }, { "page": "745" }, { "page": "745", "parenthetical": "conclusions of law are not accepted as true when considering Rule 12 motion to dismiss" } ], "opinion_index": 0 }, { "cite": "318 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732963 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "174-75" }, { "page": "175" }, { "page": "175" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0172-01" ] }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "277 S.E.2d 562", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "571", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "51 N.C. App. 571", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2643851 ], "year": 1981, "pin_cites": [ { "page": "583", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/51/0571-01" ] }, { "cite": "251 S.E.2d 843", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1979, "pin_cites": [ { "page": "851" }, { "page": "852" } ], "opinion_index": 0 }, { "cite": "296 N.C. 416", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567570 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "427" }, { "page": "428" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0416-01" ] }, { "cite": "416 U.S. 134", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 84512 ], "weight": 4, "year": 1974, "pin_cites": [ { "page": "157" }, { "page": "35" }, { "page": "157" }, { "page": "35", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/us/416/0134-01" ] }, { "cite": "632 F.Supp. 455", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3851257 ], "year": 1986, "pin_cites": [ { "page": "458", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/f-supp/632/0455-01" ] }, { "cite": "408 U.S. 564", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1782964 ], "weight": 4, "year": 1972, "pin_cites": [ { "page": "569-70", "parenthetical": "hereafter \"Roth\"" }, { "page": "556", "parenthetical": "hereafter \"Roth\"" }, { "page": "577" }, { "page": "573" } ], "opinion_index": 0, "case_paths": [ "/us/408/0564-01" ] }, { "cite": "839 F.2d 225", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10543462 ], "year": 1988, "pin_cites": [ { "page": "229-30" } ], "opinion_index": 0, "case_paths": [ "/f2d/839/0225-01" ] }, { "cite": "260 S.E.2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "616" } ], "opinion_index": 0 }, { "cite": "298 N.C. 715", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573981 ], "year": 1979, "pin_cites": [ { "page": "723" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0715-01" ] }, { "cite": "468 U.S. 609", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11339552 ], "weight": 9, "year": 1984, "pin_cites": [ { "page": "618" }, { "page": "471" }, { "page": "620" }, { "page": "473" }, { "page": "622" }, { "page": "474", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/us/468/0609-01" ] }, { "cite": "408 U.S. 593", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1782863 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "597" }, { "page": "577" } ], "opinion_index": 0, "case_paths": [ "/us/408/0593-01" ] }, { "cite": "429 U.S. 274", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8150 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "287" }, { "page": "484" } ], "opinion_index": 0, "case_paths": [ "/us/429/0274-01" ] }, { "cite": "374 S.E.2d 401", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "405" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 306", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526841 ], "year": 1988, "pin_cites": [ { "page": "311" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0306-01" ] }, { "cite": "381 S.E.2d 827", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "832" } ], "opinion_index": 0 }, { "cite": "95 N.C. App. 56", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519444 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/95/0056-01" ] }, { "cite": "221 S.E.2d 282", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "292" }, { "page": "291" } ], "opinion_index": 0 }, { "cite": "289 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566728 ], "year": 1976, "pin_cites": [ { "page": "94" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0071-01" ] }, { "cite": "370 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "387" } ], "opinion_index": 0 }, { "cite": "322 N.C. 643", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518481 ], "year": 1988, "pin_cites": [ { "page": "661" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0643-01" ] }, { "cite": "382 S.E.2d 836", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "840", "parenthetical": "employee-at-will's employment can be terminated for \"indifferent and illogical\" reasons" } ], "opinion_index": 0 }, { "cite": "95 N.C. App. 301", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520544 ], "year": 1989, "pin_cites": [ { "parenthetical": "employee-at-will's employment can be terminated for \"indifferent and illogical\" reasons" } ], "opinion_index": 0, "case_paths": [ "/nc-app/95/0301-01" ] }, { "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", "year": 1986, "pin_cites": [ { "page": "85" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 253", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521759 ], "year": 1986, "pin_cites": [ { "page": "262" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0253-01" ] }, { "cite": "374 S.E.2d 590", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "employment manual not part of employment contract unless expressly included" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1169, "char_count": 32989, "ocr_confidence": 0.758, "pagerank": { "raw": 3.5778216310940005e-07, "percentile": 0.8866184862515151 }, "sha256": "27ef0fffb4bf084b4b427c3b2d62643cdde2adf7e1a114fd96fbe98e5e3ecff6", "simhash": "1:9f56d47cfebe0a83", "word_count": 5161 }, "last_updated": "2023-07-14T18:28:35.242103+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and COZORT concur." ], "parties": [ "THOMAS H. PRIVETTE v. UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, DAVID S. JANOWSKI, in his individual and official capacities, and AMIR S. RESVANI, in his individual and official capacities" ], "opinions": [ { "text": "GREENE, Judge.\nPlaintiff (hereafter \u201cPrivette\u201d or \u201cplaintiff\u201d) appeals the dismissal of his complaint in which he asserted multiple claims allegedly arising out of his discharge from employment by defendants. Defendants are the University of North Carolina at Chapel Hill (UNC), Dr. David S. Janowski [sic] (\u201cJanowsky\u201d), individually and officially, and Dr. Amir S. Resvani (\u201cResvani\u201d), individually and officially.\nThe facts, as alleged in the complaint, reveal that Privette in January 1986 was employed as \u201cresearch technician for the Lab at the University\u2019s Center for Alcoholic Studies. His duties involved performing scientific experiments under the direction of Dr. R. D. Myers\u201d (hereafter \u201cMyers\u201d). While Privette \u201creported directly to Dr. Myers concerning the scientific aspect of his work,\u201d other research in the Lab was supervised by Resvani who also \u201chad responsibility for some administrative aspects of the Lab.\u201d In early 1987, the defendants \u201cbegan a pattern of harrassment [sic] against Privette because of his association with Dr. Myers.\u201d The \u201cDefendants encouraged the research technicians under Rezvani\u2019s [sic] supervision to make false accusations against Dr. Myers and, because of Privette\u2019s association with Dr. Myers, also against Privette.\u201d\nThe complaint further alleges that:\nIn retaliation for Privette\u2019s continued association with Dr. Myers and his initiation of the grievance procedure concerning the Defendants\u2019 harassment, the Defendants conspired to terminate Privette\u2019s employment with the University, prevent him from obtaining employment with the University in another capacity, prevent him from gaining admission into the University Medical School, and prevent him from seeking legal redress for the Defendants\u2019 violation of his rights.\nOn 19 June 1987, Janowsky told Privette that because he had failed to properly clean a \u201csurgery table\u201d he \u201cwould be terminated.\u201d Plaintiff alleged that the \u201cDefendants conspired to make Privette\u2019s work area appear to be in much worse condition than the other work areas so that the Defendants would have an excuse for terminating Privette.\u201d \u201cJanowsky told Privette that Janowsky would keep his own file on Privette and that he would use it against Privette if he had the opportunity, and that Janowsky would do whatever he could do to keep Privette out of the University\u2019s Medical School.\u201d On 23 June 1987, \u201cJanowsky informed Privette that he was terminated effective June 19.\u201d \u201cDuring the summer of 1987, Privette inquired about numerous jobs at the University. Although many persons expressed interest in employing Privette, in each case his application was eventually rejected. Upon information and belief, the applications were turned down after the employers had consulted with the individual Defendants or other University officials.\u201d \u201cUpon information and belief, and as a part of a continuing effort to harass Privette, the Defendants have made defamatory statements about Privette to potential employers and told them not to employ Privette as part of a continuing effort to harass Privette.\u201d\nBased on the facts alleged in the complaint, Privette made the following separate claims for relief:\nCount I \u2014 Conspiracy\n45. Each of the allegations set forth in paragraphs 1 through 44 is realleged herein.\n46. The unlawful conduct and practices described herein were acts committed pursuant to a common scheme, enterprise, or agreement among the Defendants and others, the object of which was to commit unlawful acts or to use lawful acts to achieve unlawful results harmful to Privette.\n47. Each of the Defendants and others were co-conspirators, and as co-conspirators each was the agent of the others in the perpetuation of unlawful conduct or practices which proximately caused injuries to Privette.\nCount II \u2014 Deprivation of Civil Rights\n(42 U.S.C. Section 1983)\n48. Each of the allegations set forth in paragraphs 1 through 47 is realleged herein.\n49. At all times relevant to this lawsuit Privette has had substantial liberty and property interest in his continued employment as a research technician at the lab, the right to seek and be considered for other employment at the University and elsewhere, the right to seek and be considered for admission into the University\u2019s Medical School, the right to seek legal redress through the University\u2019s Grievance Procedure and other legal remedies, the freedom of association, and the freedom of expression.\n50. At all times relevant to this lawsuit, the Defendants have acted under color of state law.\n51. The Defendants acted arbitrarily and capriciously in harassing and terminating Privette. The Defendants have also violated Privette\u2019s rights to seek legal redress and his rights to freedom of association and freedom of expression.\n52. Janowski [sic] and Rezvani [sic] have acted in bad faith and with ill will and malice towards Privette in violating his rights.\n53. Privette has incurred substantial injuries as a result of the Defendants\u2019 violation of his rights.\nCount III \u2014 Interference with Contractual Relations\n54. Each of the allegations set forth in paragraphs 1 through 53 is realleged herein.\n55. Between January of 1986 and June of 1987 Privette had a valid contract of employment with the University which conferred rights and privileges upon Privette.\n56. Janowski [sic] and Rezvani [sic] had knowledge of the contract between Privette and the University.\n57. Janowski [sic] and Rezvani [sic] intentionally induced the University to terminate Privette in violation of his contract of employment.\n58. Janowski [sic] and Rezvani [sic] lacked any justification for their acts.\n59. The acts of Janowski [sic] and Rezvani [sic] have proximately caused Privette to incur substantial damages.\nCount IV \u2014 Intentional Infliction of Emotional Distress\n60. Each of the allegations set forth in paragraphs 1 through 59 is realleged herein.\n61. The acts of the Defendants amount to extreme and outrageous conduct.\n62. The Defendants acted with the intent to cause Plaintiff to suffer severe emotional distress, or with reckless indifference as to the likelihood that Privette would suffer severe emotional distress.\n63. The Defendants\u2019 acts have caused Privette to suffer severe emotional distress.\n64. The Defendants\u2019 acts have proximately caused Privette to suffer substantial damages.\nCount V \u2014Wrongful Discharge\n65. Each of the allegations set forth in paragraphs 1 through 64 is realleged herein.\n66. Pursuant to the University\u2019s Personnel Guide, Privette could be discharged only for just cause.\n67. At all times that Privette was employed by the University, he served the University faithfully and diligently, conducted himself properly, and performed all the duties incident to his employment honestly and with reasonable diligence, care and attention.\n68. The Defendants discharged Privette without just cause.\n69. The Defendants\u2019 wrongful discharge of Privette was the proximate cause of damages incurred by Privette.\nCount VI \u2014 Breach of Contract\n70. Each of the allegations set forth in paragraphs 1 through 69 is realleged herein.\n71. Between January of 1986 and June of 1987, Privette had a valid and enforceable contract of employment with the University.\n72. The Defendants breached Privette\u2019s contract of employment with the University.\n73. The Defendants\u2019 breach of Privette\u2019s employment contract was the proximate cause of damages incurred by Privette.\nCount VII \u2014 Punitive Damages\n74. Each of the allegations set forth in paragraphs 1 through 73 is realleged herein.\n75. The aforesaid actions were done intentionally, willfully, wantonly, or with a heedless and reckless disregard of Privette\u2019s rights, entitling Privette to recover punitive damages in an amount sufficient to punish the Defendants and deter similar conduct in the future.\nIn his prayer for relief, the plaintiff requested back pay, punitive damages and injunctive relief to enjoin the defendants from interfering with \u201cany application by the Plaintiff for employment with any person or entity, including the University because of Plaintiff\u2019s exercise of his civil rights.\u201d The plaintiff also requested injunctive relief to prohibit the defendants from interfering with or adversely affecting \u201cany application by the Plaintiff for admission to any school or program of the University, or any other college or university. . .\u201d Finally, the plaintiff requested that \u201cthe University\u2019s personnel file be purged of any notes or documents which relate in any way to the Defendants\u2019 wrongful conduct or the Plaintiff\u2019s exercise of his civil rights. . .\u201d\nThe plaintiff later moved to amend his complaint to add:\n53A The University\u2019s Grievance Procedure would not provide adequate redress for Privette\u2019s claims and requested remedies, and would not provide an orderly procedure for an appeal to the Superior Court for review of the final administrative action. Thus, Privette has no adequate remedy under state law which provides due process.\nOn 18 July 1988, the trial court allowed the plaintiff\u2019s motion to amend his complaint and \u201c[u]pon consideration of the amended complaint, memoranda submitted on behalf of the parties, and arguments of counsel,\u201d granted defendants\u2019 Rule 12(b)(6) Motion to Dismiss. In the alternative, after considering affidavits \u201cattached to defendants\u2019 motion for partial summary judgment, the amended complaint, the memoranda submitted on behalf of the parties, and the arguments of counsel,\u201d the trial court granted summary judgment for the defendants as to Count II, Count III, Count V, and Count VI of the amended complaint.\nThe issues presented are whether the trial court properly dismissed I) the breach of contract claim; II) the wrongful discharge claim; III) the interference with contractual relations claim; IV) the intentional infliction of emotional distress; V) the deprivation of civil rights claim; VI) the conspiracy claim; and VII) the punitive damages claim, pursuant to Rule 12.\nWe first determine the trial court was not required to convert the Rule 12 motion into one for summary judgment under Rule 56. N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) (1983); N.C.G.S. \u00a7 1A-1, Rule 56 (1983). N.C.G.S. \u00a7 1A-I2(b) (if \u201cmatters outside the pleading\u201d are presented to the court, Rule 12 motions are converted to Rule 56 motions). While matters outside the pleadings were introduced, the record is clear the trial court did not consider these affidavits in ruling on the Rule 12 motion. The trial court specifically stated in its order that for the purposes of the Rule 12 motion, it considered only the amended complaint, memoranda submitted on behalf of the parties and arguments of counsel. \u201cMemoranda of points and authorities as well as briefs and oral arguments . . . are not considered matters outside the pleading for purposes\u201d of converting a Rule 12 motion into a Rule 56 motion. 5 C. Wright & A. Miller, Federal Practice and Procedure Sec. 1366 at 682 (1969). The record does not contain a copy of the memoranda submitted by the attorneys to the trial court and we are unable to determine if the memoranda contained any factual matters not contained in the pleadings. However, the plaintiff does not contest the issue and we therefore accept the memoranda as legal memoranda, not including factual matters outside the pleadings.\nIn reviewing the Rule 12 dismissal, we accept all the well-pleaded facts, not conclusions of law, as true. Jackson v. Bumgardner, 318 N.C. 172, 174-75, 347 S.E.2d 743, 745 (1986); Sutton v. Duke, 277 N.C. 94, 98, 176 S.E.2d 161, 163 (1970) (unwarranted deductions of facts are not admitted). \u201c[W]hen the complaint on its face reveals the absence of fact sufficient to make a good claim,\u201d dismissal of the complaint under Rule 12 is proper. Jackson, 318 N.C. at 175, 347 S.E.2d at 745.\nI\nBreach of Contract\nThe complaint alleges an employment contract existed between defendant UNC and plaintiff, and plaintiff did not state a claim for breach of contract against defendants Janowsky and Resvani, either in their individual or official capacities. Smith v. State, 289 N.C. 303, 332, 222 S.E.2d 412, 431 (1976) (in breach of contract claim, only principal, not agents, are liable for breach). Furthermore, we determine that as the plaintiff\u2019s alleged contract with UNC was terminable at will, Privette has failed to allege a breach of contract claim against UNC.\n\u201c[W]hen a contract of employment does not fix a definite term the employment is terminable without cause at the will of either party.\u201d Sides v. Duke University, 74 N.C. App. 331, 336, 328 S.E.2d 818, 823, disc. rev. denied, 314 N.C. 331, 333 S.E.2d 490 (1985). The fact that Privette alleged that he was discharged \u201cwithout just cause\u201d is immaterial as he did not allege that his employment was for a definite period. Harris v. Duke Power Co., 319 N.C. 627, 629, 356 S.E.2d 357, 359 (1987). Privette alleges no more than a unilateral expectation of continued employment.\nPrivette argues that regardless of his failure to allege a \u201cdefinite term\u201d of employment, that UNC\u2019s Personnel Guide applies to his dismissal. Firstly, Privette failed to allege that his employment contract expressly included UNC\u2019s Personnel Guide. Roshy v. Gen\u2019l Baptist State Convention, 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) (employment manual not part of employment contract unless expressly included). Secondly, plaintiff did not include in his complaint the relevant terms of the personnel guide or attach the personnel guide to the complaint as an exhibit.\nAccordingly, as the complaint \u2018reveals the absence of fact sufficient to make a good claim,\u2019 we affirm the trial court\u2019s dismissal of Privette\u2019s breach of contract action against all defendants.\nII\nWrongful Discharge\nAs a general rule, an employee-at-will has no claim for relief for wrongful discharge. Walker v. Westinghouse Electric Corp., 77 N.C. App. 253, 262, 335 S.E.2d 79, 85, disc. rev. denied, 315 N.C. 597, 341 S.E.2d 39 (1986). However, the doctrine is not without limits and a valid claim for relief exists for wrongful discharge of an employee-at-will if the contract is terminated \u201cfor an unlawful reason or purpose that contravenes public policy.\u201d Sides, 74 N.C. App. at 342, 328 S.E.2d at 826.\nPrivette alleged that UNC discharged him because he associated with Myers, an allegedly out-of-favor member of the UNC research faculty. We determine that this allegation, while possibly asserting an arbitrary reason for discharge, does not assert an unlawful reason. Id. (employee-at-will\u2019s employment can be terminated for \u201carbitrary or irrational reason\u201d); McLaughlin v. Barclays American Corp., 95 N.C. App. 301, 382 S.E.2d 836, 840 (1989) (employee-at-will\u2019s employment can be terminated for \u201cindifferent and illogical\u201d reasons). Furthermore, the plaintiff does not allege that the discharge contravenes any public policy.\nAccordingly, as the complaint \u2018reveals the absence of fact sufficient to make a good claim,\u2019 we affirm the trial court\u2019s dismissal of plaintiff\u2019s claim for relief against all defendants for wrongful discharge.\nIll\nInterference with Contractual Relations\nThe elements of a tortious interference with employee contract claim are: \u201c(1) a valid contract between the plaintiff and a third person which confers upon the plaintiff a contractual right against a third person; (2) the defendant knows of the contract; (3) the defendant intentionally induces the third person not to perform the contract; (4) and in doing so acts without justification; (5) resulting in actual damage to plaintiff.\u201d United Laboratories, Inc. v. Kuykendall, 322 N.C. 643, 661, 370 S.E.2d 375, 387 (1988). The interference is \u201cwithout justification\u201d if the defendants\u2019 motives for procuring termination of the employment contract were \u201cnot reasonably related to the protection of a legitimate business interest\u201d of the defendant. Smith v. Ford Motor Co., 289 N.C. 71, 94, 221 S.E.2d 282, 292 (1976); Sides, 74 N.C. App. at 347, 328 S.E.2d at 829. This claim for relief also exists on behalf of employees at will. Smith, 289 N.C. at 85, 221 S.E.2d at 291.\nThe complaint alleged that Janowsky was the director of the University\u2019s \u201cCenter for Alcohol Studies\u201d and that Resvani was the assistant director of the Center\u2019s \u201cLab.\u201d These allegations show that both Janowsky and Resvani had an interest in insuring proper work procedures at the Center and, as such, had a legitimate professional interest in the plaintiff\u2019s performance of his duties. Therefore, Privette\u2019s complaint on its face admits that Janowsky and Resvani had a proper motive for their actions. See Sides, 74 N.C. App. at 346, 328 S.E.2d at 829 (complaint must admit of no other motive for interference other than malice).\nAccordingly, Privette\u2019s complaint \u2018reveals the absence of fact sufficient to make a good claim\u2019 for interference with employment contract and the trial court was correct in dismissing this claim.\nIV\nIntentional Infliction of Emotional Distress\nPrivette assigned as error dismissal of this claim for relief, but has failed to cite authority in his brief in support of the assignment. We deem it abandoned. North Carolina Rules of App. Procedure, Rule 28(b)(5); State v. Sanders, 95 N.C. App. 56, 381 S.E.2d 827, 832 (1989).\nV\nDeprivation of Civil Rights\nPlaintiff next alleged that the defendants, in their individual and official capacities, violated Privette\u2019s civil rights and sought relief under 42 U.S.C. \u00a7 1983 (1979). \u00a7 1983, a federal statute, \u201ccreates no substantive rights; it only provides for access to the courts to vindicate those rights already guaranteed by the Constitution or other federal statutes.\u201d. Harwood v. Johnson, 92 N.C. App. 306, 311, 374 S.E.2d 401, 405 (1988). State courts, along with the federal courts, \u201cexercise concurrent subject matter jurisdiction over claims arising under [\u00a7] 1983.\u201d Id.\nA. Substantive Due Process\nA plaintiff states a cause of action under \u00a7 1983 when he alleges that his conduct was protected by the constitution and that the constitutionally-protected conduct was a \u201cmotivating factor\u201d in his discharge. Mt. Healthy City School District v. Doyle, 429 U.S. 274, 287, 50 L.Ed.2d 471, 484 (1977). An employment discharge violates substantive due process rights if it is based upon constitutionally impermissible grounds, regardless of whether the employee had a property interest in continued employment. Perry v. Sindermann, 408 U.S. 593, 597, 33 L.Ed.2d 570, 577 (1972).\nPlaintiff first alleged that his association with Myers led to defendants\u2019 harassment of Privette. Privette argues that any harassment from the defendants as a result of his relationship with Myers is a violation of his \u201cfreedom of association\u201d and gives rise to \u00a7 1983 claim. We agree with the plaintiff that freedom of association can be a liberty interest entitled to \u201cprotection as a fundamental element of personal liberty.\u201d Roberts v. U.S. Jaycees, 468 U.S. 609, 618, 82 L.Ed.2d 462, 471 (1984). The United States Supreme Court has enunciated two types of association: the \u201cfreedom of intimate association\u201d and the \u201cfreedom of expressive association.\u201d Id.\nThe \u2018freedom of intimate association\u2019 grows out of the bill of rights and protects \u201cthe formation and preservation of certain kinds of highly personal relationships . . . from unjustified interference by the State.\u201d Id. Determining the limits which can be made on a public employee \u201centails a careful assessment of where that relationship\u2019s objective characteristics locate it on a spectrum from the most intimate to the most attenuated of personal attachments.\u201d Id., 468 U.S. at 620, 82 L.Ed.2d at 473. The only association between Myers and Privette alleged in the complaint is an employment relationship. There is no allegation of any \u2018intimate\u2019 association or \u2018personal attachment.\u2019\n\u2018Freedom of expressive association\u2019 includes:\n[a]n individual\u2019s freedom to speak, to worship, and to petition the government for the redress of grievances [that] could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed. . . . According protection to collective effort on behalf of shared goals is especially important in preserving political and cultural diversity and in shielding dissident expression from suppression by the majority.\nRoberts, 468 U.S. at 622, 82 L.Ed.2d at 474 (emphasis added) (citations omitted). Plaintiff\u2019s complaint includes no allegations that defendants\u2019 actions in any manner interfered with a \u2018collective effort\u2019 of Privette and Myers to assert \u2018shared goals.\u2019 The allegation that Privette was harassed for his association with Myers is insufficient to allege a \u2018freedom of expressive association.\u2019 The mere \u201caccident of overlapping location at some point in space and time\u201d is not sufficient \u201cto invoke the preferred freedom of association.\u201d Tribe, Laurence H., American Constitutional Law, 2d Ed. (1988) \u00a7\u00a7 15-17.\nAccordingly, the complaint \u2018reveals the absence of fact sufficient to make a good claim;\u2019 we determine the trial court did not err in dismissing plaintiff\u2019s claims for violations of substantive due process based on \u2018freedom of association.\u2019\nB. Procedural Due Process\nThe plaintiff is denied procedural due process \u201conly to the degree that plaintiffs complaint reveals a colorable claim that a \u2018property\u2019 or \u2018liberty\u2019 interest was violated by the procedures attendant to plaintiff\u2019s discharge.\u201d Presnell v. Pell, 298 N.C. 715, 723, 260 S.E.2d 611, 616 (1979).\n1\nPlaintiff first claimed a property interest \u201cin continued employment\u201d and that this interest was violated when he was denied a hearing before being discharged from his employment. We disagree. At-will employees have no property interests in their employment cognizable under the due process clause. See Pittman v. Wilson County, 839 F.2d 225, 229-30 (4th Cir. 1988). The necessity of a hearing before discharge arises only if plaintiff has a property interest in continued employment. Board of Regents v. Roth, 408 U.S. 564, 569-70, 33 L.Ed.2d 548, 556 (1972) (hereafter \u201cRoth\u201d).\n2\nPrivette next alleged his \u201cright to seek and be considered for admission into the University\u2019s Medical School\u201d was a property interest and that the procedures attendant to his dismissal denied him of this interest. To have a property interest claim, a plaintiff \u201cmust have more than an abstract need or desire. . . . He must have more than a unilateral expectation. ... He must, instead, have a legitimate claim of entitlement. . .\u201d Roth, 408 U.S. at 577, 33 L.Ed.2d at 561 (emphasis added). Privette alleged only his desire to attend UNC medical school. He did not allege that he was qualified to attend medical school, that he had applied and was rejected by the medical school or that he was entitled to admission to any medical school. \u201c \u2018The admission to a professional school is a privilege and not, standing-alone, a constitutional or property right. . . .\u2019 \u201d Phelps v. Washburn University, 632 F.Supp. 455, 458 (D. Kan. 1986) (citation omitted). Privette\u2019s allegations are no more than speculation suggesting the defendants might interfere with his application were he to apply. These allegations do not rise to a property interest.\n3\nPrivette next alleged that the defendants interfered with his liberty interest in seeking future employment by threatening to disseminate false information.\nDismissal from employment does not itself offend the liberty interest one has to seek future employment. However, \u201cdismissal based upon an unsupported charge which could wrongfully injure the reputation of an employee\u201d does affect a constitutional liberty interest. Arnett v. Kennedy, 416 U.S. 134, 157, 40 L.Ed.2d 15, 35 (1974). In such an instance, the employee is to be accorded pursuant to the due process clause, \u201can opportunity to refute the charge before University officials.\u201d Roth, 408 U.S. at 573, 33 L.Ed.2d at 558. The purpose of the hearing in such a case is to provide the person \u201c \u2018an opportunity to clear his name.\u2019 \u201d Arnett, 416 U.S. at 157, 40 L.Ed.2d at 35 (citation omitted).\nAssuming Privette has sufficiently alleged that the defendants dismissed him \u2018upon an unsupported charge which could wrongfully injure the reputation\u2019 of Privette and entitle him to a hearing after his dismissal, Privette also alleged that UNO\u2019s administrative hearing procedures were inadequate in that:\n[UNO\u2019s] Grievance Procedure would not provide adequate redress for Privette\u2019s claims and requested remedies, and would not provide an orderly procedure for appeal to the Superior Court for review of the final administrative action. Thus, Privette has no adequate remedy under state law which provides due process.\nThese conclusory allegations are insufficient as a matter of law to \u201cdemonstrate the adequacy, or lack thereof, of legal administrative remedies.\u201d Lloyd v. Babb, 296 N.C. 416, 427, 251 S.E.2d 843, 851 (1979). \u201c[W]hen an effective administrative remedy exists, that remedy is exclusive. . . . Our inquiry must therefore be, taking plaintiff[\u2019s] factual allegations as true, whether the [grievance] procedure is an effective administrative remedy for the wrongs of which [he] complainfs].\u201d Id. 296 N.C. at 428, 251 S.E.2d at 852. However, the failure of the complaint to allege the provisions of UNC\u2019s Grievance Procedure renders impossible our determination of the adequacy in fact of the hearing procedures provided to Privette. In order for Privette to avoid dismissal under Rule 12, the complaint must allege facts sufficient to satisfy the substantive elements of the claim; plaintiff\u2019s conclusory pleadings are insufficient. Jackson, 318 N.C. at 175, 347 S.E.2d at 745 (conclusions of law are not accepted as true when considering Rule 12 motion to dismiss). Accordingly, the complaint \u2018reveals the absence of fact sufficient to make a good claim\u2019 for violation of his procedural due process rights and the trial court did not err in dismissing this claim.\nVI\nConspiracy\nThe elements of a civil conspiracy are: (1) an agreement between two or more individuals; (2) to do an unlawful act or to do a lawful act in an unlawful way; (3) resulting in injury to plaintiff inflicted by one or more of the conspirators; and (4) pursuant to a common scheme. Jones v. City of Greensboro, 51 N.C. App. 571, 583, 277 S.E.2d 562, 571 (1981) (citations omitted).\nAs we have determined that plaintiff has not successfully alleged the doing of any \u2018unlawful\u2019 act and does not argue that defendants\u2019 acts were lawful, but done in an \u2018unlawful way,\u2019 plaintiff\u2019s conspiracy claim fails. The complaint \u2018reveals the absence of fact sufficient to make a good claim,\u2019 and the trial court properly dismissed this claim.\nVII\nPunitive Damages\nPunitive damages can be recovered \u201conly for tortuous [sic] conduct and then only on proof that the defendant acted to cause plaintiff\u2019s injury wilfully, with malice, or with a reckless disregard for plaintiff\u2019s rights.\u201d Sides, 74 N.C. App. at 348, 328 S.E.2d at 830. We have determined that plaintiff\u2019s claims for the underlying causes of actions are not enforceable claims as alleged and plaintiff\u2019s plea for the award of punitive damages likewise was properly dismissed.\nVIII\nHaving determined that the trial court committed no error in dismissing Privette\u2019s complaint under Rule 12, we find it unnecessary to address any of the alternate bases for the trial court\u2019s dismissal.\nAffirmed.\nJudges JOHNSON and COZORT concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Faison & Brown, by Charles Gordon Brown and John C. Schafer, for plaintiff-appellant.", "Lacy H. Thornburg, Attorney General, by Edwin M. Speas, Jr., Special Deputy Attorney General, for the State." ], "corrections": "", "head_matter": "THOMAS H. PRIVETTE v. UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, DAVID S. JANOWSKI, in his individual and official capacities, and AMIR S. RESVANI, in his individual and official capacities\nNo. 8815SC1217\n(Filed 7 November 1989)\n1. Rules of Civil Procedure \u00a7 12 (NCI3d) \u2014 motion to dismiss \u2014 no conversion to summary judgment motion\nThe trial court was not required to convert defendants\u2019 Rule 12(b)(6) motion to dismiss into one for summary judgment under Rule 56 where the trial court did not consider matters outside the pleadings but considered only the amended complaint, memoranda submitted on behalf of the parties and arguments of counsel.\nAm Jur 2d, Summary Judgment \u00a7 13.\n2. Master and Servant \u00a7 10.2 (NCI3d)\u2014 breach of employment contract \u2014insufficiency of complaint\nPlaintiff\u2019s allegation that he was discharged without just cause was insufficient to state a claim against UNC-CH for breach of an employment contract where plaintiff failed to allege that his employment was for a definite period. Plaintiff\u2019s contention that the UNC-CH Personnel Guide applies to his dismissal was without merit where plaintiff failed to allege that his employment contract expressly included the Personnel Guide and failed to include in his complaint the relevant terms of the Personnel Guide or attach the Personnel Guide to the complaint as an exhibit.\nAm Jur 2d, Master and Servant \u00a7\u00a7 27, 45, 46.\n3. Master and Servant \u00a7 10.2 (NCI3d)\u2014 wrongful discharge\u2014 insufficiency of complaint\nPlaintiff\u2019s allegation that UNC-CH discharged him because he associated with an out-of-favor member of the UNC-CH research faculty failed to state a claim for wrongful discharge of an employee at will.\nAm Jur 2d, Master and Servant \u00a7 54.\n4. Master and Servant \u00a7 13 (NCI3d)\u2014 tortious interference with employment contract \u2014insufficiency of complaint\nPlaintiff\u2019s complaint was insufficient to state a claim against the individual defendants for tortious interference with plaintiff\u2019s contract of employment as a research technician for the lab at the UNC-CH Center for Alcoholic Studies where it alleged that one defendant was the director of the Center and the second defendant was the assistant director of the Center\u2019s lab, since the complaint showed on its face that both defendants had a legitimate professional interest in plaintiff\u2019s performance of his duties and therefore had a proper motive for their actions.\nAm Jur 2d, Master and Servant \u00a7\u00a7 45, 46.\n5. Constitutional Law \u00a7 17 (NCI3d)\u2014 freedom of expressive association \u2014 insufficiency of complaint to allege violation\nPlaintiff\u2019s allegation that defendants, acting under color of State law, harassed and terminated plaintiff as a research technician for the lab at the UNC-CH Center for Alcoholic Studies because of plaintiff\u2019s association with an out-of-favor member of the research faculty was insufficient to state a claim under 42 U.S.C. \u00a7 1983 for a violation of his right to freedom of expressive association.\nAm Jur 2d, Constitutional Law \u00a7\u00a7 533 et seq.\n6. Master and Servant \u00a7 10 (NCI3d)\u2014 at-will employee \u2014 no right to hearing before discharge\nAn at-will employee had no property interest in continued employment cognizable under the due process clause and thus was not entitled to a hearing before being discharged.\nAm Jur 2d, Constitutional Law \u00a7\u00a7 839, 845; Master and Servant \u00a7 27.\n7. Constitutional Law \u00a7 17 (NCI3d)\u2014 employee dismissal \u2014 interference with admission to medical school \u2014 no protected property interest\nPlaintiff\u2019s allegation that his dismissal as a research technician at the UNC-CH Center for Alcoholic Studies affected his \u201cright to seek and be considered for admission into the University\u2019s Medical School\u201d failed to state a claim under 42 U.S.C. \u00a7 1988 based on a property interest protected by procedural due process.\nAm Jur 2d, Constitutional Law \u00a7\u00a7 813-815.\n8. Constitutional Law \u00a7 17 (NCI3d)\u2014 employee dismissal \u2014 injury to reputation \u2014 inadequacy of grievance procedure \u2014 insufficient allegations\nAssuming that plaintiff sufficiently alleged that defendants dismissed him as a research technician at UNC-CH on the basis of an unsupported charge which could wrongfully injure plaintiffs reputation so that he was entitled to a hearing after his dismissal, plaintiff\u2019s complaint was insufficient to state a claim under 42 U.S.C. \u00a7 1983 for a violation of his procedural due process rights where it contained a conclusory allegation that the UNC Grievance Procedure was inadequate to provide sufficient redress for him but failed to allege the provisions of the Grievance Procedure.\nAm Jur 2d, Pleading \u00a7 69.\n9. Conspiracy \u00a7 2 (NCI3d)\u2014 civil conspiracy \u2014 insufficiency of complaint\nPlaintiff\u2019s complaint was insufficient to state a claim for civil conspiracy arising out of his discharge from employment by defendants where it failed to allege any unlawful act by defendants or any lawful act done in an unlawful way.\nAm Jur 2d, Conspiracy \u00a7\u00a7 49 et seq.\n10.Damages \u00a7 12.1 (NCI3d)\u2014 punitive damages \u2014 dismissal where underlying claims dismissed\nPlaintiff\u2019s claim for punitive damages was properly dismissed where the underlying claims were not enforceable as stated.\nAm Jur 2d, Damages \u00a7 741.\nAPPEAL by plaintiff from Farmer (Robert LJ, Judge. Judgment entered 6 August 1988 in Superior Court, ORANGE County. Heard in the Court of Appeals 11 May 1989.\nFaison & Brown, by Charles Gordon Brown and John C. Schafer, for plaintiff-appellant.\nLacy H. Thornburg, Attorney General, by Edwin M. Speas, Jr., Special Deputy Attorney General, for the State." }, "file_name": "0124-01", "first_page_order": 156, "last_page_order": 171 }