PATRICIA ANN GIBBS,
Plaintiff-Appellant,
v
.
Guilford County
No. 00 CVS 5926
GUILFORD TECHNICAL
COMMUNITY COLLEGE,
Defendant-Appellee.
Hicks McDonald Noecker LLP, by David W. McDonald, for
plaintiff-appellant.
Smith Moore LLP, by Julie C. Theall and Shannon J. Adcock, for
defendant-appellee.
McGEE, Judge.
Patricia Ann Gibbs (plaintiff) filed suit in Guilford County
Superior Court against Guilford Technical Community College
(defendant) on 6 April 2000 alleging wrongful termination, breach
of contract, and intentional infliction of emotional distress.
Defendant filed a notice of removal to federal court on 24 May
2000. The Guilford County Superior Court declared the matter
inactive and closed the case file without prejudice in an order
filed 20 June 2000. Plaintiff filed a motion on 26 June 2000
requesting that the case be remanded to state court. In an order
filed 23 July 2000, the United States District Court for the MiddleDistrict of North Carolina remanded the case to Guilford County
Superior Court because defendant failed to demonstrate that the
action arose under federal law.
Defendant filed a motion dated 17 August 2000 to dismiss the
action pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) and to
dismiss on the basis of a prior action on the same matters pending
in federal court. The trial court entered an order to continue the
motion on 18 September 2000. In an order filed 21 September 2000,
the trial court denied defendant's motion to dismiss on the basis
of a prior action pending and noted that defendant had withdrawn
its 12(b)(6) motion. Our Court affirmed the trial court's order in
an unpublished opinion, Gibbs v. Guilford Technical Community
College (COA01-328), on 16 April 2002.
Defendant filed an answer to plaintiff's complaint on 28 May
2002 and moved for summary judgment in a motion dated 19 July 2000.
Plaintiff filed a motion dated 2 August 2002 to continue
defendant's motion for summary judgment pursuant to N.C. Gen. Stat.
§ 1A-1, Rule 56(f). In a response dated 12 August 2002, defendant
opposed plaintiff's motion for a continuance. In an order filed 7
October 2002, the trial court denied plaintiff's motion to continue
and allowed defendant's motion for summary judgment. Plaintiff
appeals.
Plaintiff was born with cerebral palsy, a neurological
disorder. She earned degrees in elementary education, library
science, and special education. Plaintiff began her employment
with defendant in September 1982 as a library assistant. Plaintiffalleged that she was touched inappropriately by a female supervisor
in 1986. Plaintiff was transferred to the Compensatory Education
Department (CED) on 17 September 1987. The CED educates adults
with developmental disabilities with the primary diagnosis of
mental retardation. Throughout the years, plaintiff held a variety
of positions, and she was periodically assigned teaching positions.
Plaintiff was appointed as a full-time instructor for the
1996-1997 school year, encompassing the ten-month period from 1
July 1996 until 30 April 1997. By letter dated 7 April 1997,
plaintiff was notified that because of her unacceptable
performance, she was suspended for the duration of her employment
agreement, and her contract would not be renewed for the following
year. Despite the suspension, plaintiff was paid in full through
30 April 1997, the end of her contract term.
We note that defendant presented two cross-assignments of
error. However, in light of our decision, we do not reach the two
issues brought forward by defendant.
Several of plaintiff's assignments of error present the
argument that the trial court erred by denying her motion to
continue defendant's motion for summary judgment. Plaintiff cites
several cases for the proposition that "it is error for a court to
hear and rule on a motion for summary judgment when discovery
procedures, which might lead to the production of evidence relevant
to the motion, are still pending and the party seeking discovery
has not been dilatory in doing so." Plaintiff contends that
defendant failed to answer her discovery requests, that plaintiffwas not dilatory in proceeding with discovery, and that plaintiff
was prejudiced by defendant's incomplete and evasive responses to
discovery. Accordingly, plaintiff argues that the trial court
abused its discretion in denying her continuance motion. For the
reasons stated below, we disagree.
"Motions to continue pursuant to Rule[] 56(f) . . . of our
Rules of Civil Procedure are granted in the trial court's
discretion." Caswell Realty Assoc. v. Andrews Co., 128 N.C. App.
716, 721, 496 S.E.2d 607, 611 (1998). "Under an abuse of
discretion standard, we defer to the trial court's discretion and
will reverse its decision 'only upon a showing that it was so
arbitrary that it could not have been the result of a reasoned
decision.'" Brewer v. Cabarrus Plastics, Inc., 160 N.C. App. 688,
690, 586 S.E.2d 819, 821 (2003) (quoting White v. White, 312 N.C.
770, 777, 324 S.E.2d 829, 833 (1985)), disc. review denied, 358
N.C. 153, 592 S.E.2d 554 (2004).
In the case before us, plaintiff filed suit on 6 April 2000
and her motion to continue was not denied until 7 October 2002, two
and one-half years after the lawsuit was filed. Plaintiff
emphasizes, and we recognize, that discovery was not permissible
during this entire period as a result of defendant's attempt to
remove the action to federal court and because of an appeal to this
Court on another issue. However, despite these lapses when
discovery was not practical, plaintiff still had a total of almost
thirty-six weeks to conduct discovery: (1) 6 April 2000 until 24
May 2000, the time between the date the complaint was filed and thedate the notice of removal to federal court was filed (7 weeks, 6
days); (2) 20 July 2000 until 20 October 2000, the time between
when the case was remanded to state court and when defendant filed
notice of appeal to this Court based on the trial court's denial of
defendant's motion to dismiss (12 weeks, 5 days); and (3) 6 May
2002 until 26 August 2002, the time between when the mandate issued
from this Court on the prior appeal and when the trial court heard
plaintiff's motion to continue (16 weeks). Despite these
opportunities for conducting discovery, plaintiff's first written
discovery was dated and served on 13 June 2002. In defendant's
response dated 15 August 2002, defendant objected to all but two of
plaintiff's requests.
Plaintiff cites several cases as examples of this Court
holding that a summary judgment motion was improperly heard and
ruled upon. For example, in Ussery v. Taylor, 156 N.C. App. 684,
577 S.E.2d 159 (2003), our Court reversed the trial court's grant
of summary judgment based on the plaintiff's argument that he was
not given reasonable time to conduct discovery. In Ussery, the
plaintiff filed the complaint on 13 December 2001 and served
written requests for discovery the next day. Ussery, 156 N.C. App.
at 684-85, 577 S.E.2d at 160. Approximately one month later, on 17
January 2002, the defendants filed a motion for summary judgment.
Id. at 685, 577 S.E.2d at 160. The defendants responded
incompletely to the plaintiff's requests on 5 February 2002. Id.
The plaintiff filed notices of depositions on 14 February 2002 to
be taken in late April. Id. However, the defendants' summaryjudgment motion was heard on 20 February 2002 and granted on 25
February 2002. Id.
The facts of Ussery are distinguishable from those in the case
before this Court. In Ussery, the plaintiff was prompt in filing
his first discovery request. In our case, plaintiff's first
written discovery request was not filed until over two years from
the date of the complaint. Further, in Ussery, the summary
judgment motion was heard and ruled upon approximately ten and one-
half weeks after the complaint was filed. In contrast, summary
judgment was not granted in the case before us until almost two and
one-half years after plaintiff filed her complaint.
Plaintiff also cites Kirkhart v. Saieed, 107 N.C. App. 293,
419 S.E.2d 580 (1992), which involved a trial court prematurely
granting a summary judgment motion. In Kirkhart, the plaintiff's
first request for documents was served on 9 March 1990. Kirkhart,
107 N.C. App. at 294, 419 S.E.2d at 580. The defendants partially
answered and objected and then subsequently filed a motion for
summary judgment on 6 August 1990. Id. Ten days later, the
plaintiff filed a motion to compel discovery. Id. At the 27
February 1991 hearing on the summary judgment motion, the plaintiff
moved for a continuance based on the argument that there were
outstanding discovery requests, an outstanding motion to compel
production, and that the information sought was critical to the
plaintiff's case. Id. The trial court denied the motions to
continue and compel and granted summary judgment in favor of the
defendants. Id. However, our Court reversed because the plaintiffwas prejudiced since he "did not have access to the documents
necessary to establish his case by the time of the hearing[.]"
Kirkhart, 107 N.C. App. at 297-98, 419 S.E.2d at 582.
The case before us is distinguishable on the ground that in
Kirkhart, there was no evidence that the plaintiff was dilatory in
seeking discovery. Furthermore, there was an outstanding motion to
compel production of specific documents that the plaintiff had
requested from the defendants. Our Court found that these
documents were required in order for the plaintiff to establish his
case. In contrast, in the case before our Court, as discussed
above, there is evidence that plaintiff delayed in filing her first
discovery request. Further, unlike Kirkhart, at the time of the
summary judgment hearing in the instant case, there was no
outstanding motion to compel production of documents. Thus, we do
not find Kirkhart to be controlling.
In light of the significant amount of time plaintiff was
afforded to conduct discovery prior to the hearing on the motion
for summary judgment, we conclude that the trial court did not err
in denying plaintiff's motion to continue. We recognize that
defendant's response to plaintiff's request for documents was
incomplete. However, due to plaintiff's dilatory tactics, we
nonetheless hold that the trial court did not err. Accordingly,
this argument is overruled.
Plaintiff next argues in multiple assignments of error that
the trial court erred by granting summary judgment in favor of
defendant on plaintiff's breach of contract claim. Within thisargument, plaintiff asserts three points: (1) that the trial court
erred by concluding that her employment was for a definite term;
(2) that defendant's nonrenewal of plaintiff's appointment was
based upon an illegal and discriminatory motive; and (3) that the
reasons defendant gave for nonrenewal were discriminatory on their
face or transparent pretexts for discrimination. For the reasons
stated below, we find plaintiff's argument to be without merit.
"Our standard of review from the grant of a motion for summary
judgment is whether any genuine issue of material fact exists and
whether the moving party is entitled to judgment as a matter of
law." Herring v. Liner, ___ N.C. App. ___, ___, 594 S.E.2d 117,
119 (2004). "To state a claim for breach of contract, the
complaint must allege that a valid contract existed between the
parties, that defendant breached the terms thereof, the facts
constituting the breach, and that damages resulted from such
breach." Claggett v. Wake Forest University, 126 N.C. App. 602,
608, 486 S.E.2d 443, 446 (1997). Black's Law Dictionary 200 (8th
ed. 2004) defines "breach of contract" as a "[v]iolation of a
contractual obligation by failing to perform one's own promise, by
repudiating it, or by interfering with another party's
performance."
In the present case, plaintiff was employed pursuant to a
document that described her position and stated that her
"appointment period" was from 1 July 1996 until 30 April 1997.
Plaintiff argues that her employment was based on "a written year-
to-year contract" and that the contract "did not terminateautomatically at the expiration of the appointment." As support
for the assertion that her contract did not terminate
automatically, plaintiff refers to a prior determination by the
Employment Security Commission that plaintiff was not eligible for
unemployment benefits when defendant reduced her appointment in
1989 from twelve months to ten months. The decision was based on
the idea that plaintiff had reasonable assurance that she would
provide services for defendant the following school year.
Plaintiff cites Still v. Lance, 279 N.C. 254, 182 S.E.2d 403
(1971) for her assertion that teaching contracts are year-to-year
contracts. However, the language from Still which describes
teaching contracts in this manner is from a specific statute which
is not applicable to our case and is no longer in effect. Still,
279 N.C. at 260, 182 S.E.2d at 407. Contrary to plaintiff's
contention, the relevant language from Still states that
[t]he nature of school operations is such
that, in the absence of evidence of a contrary
intent, a contract for the employment of a
school teacher is presumed to be intended by
the parties to continue to the end of the
school year and not to be terminable by either
party prior to that time and without cause and
without the consent of the other party.
Still, 279 N.C. at 259, 182 S.E.2d at 407 (emphasis added).
Accordingly, plaintiff is not entitled to a presumption that her
contract would continue for the 1997-1998 school year. Rather,
plaintiff was appointed for a specific term which expired on 30
April 1997. Thus, the trial court did not err in finding that
plaintiff's employment was for a definite term.
Pursuant to defendant's "Management Manual," defendant "at itssole discretion, reserve[d] the right of nonrenewal of any
employment agreements issued by the college." In this case,
defendant exercised its right of nonrenewal by letter dated 7 April
1997. Although defendant exercised this right before plaintiff's
appointment period expired, defendant paid plaintiff the balance of
her salary due under the contract, thus performing its contract
with plaintiff. Accordingly, the trial court did not err in
granting summary judgment in favor of defendant on plaintiff's
breach of contract claim.
We note that because plaintiff contends that her contract did
not expire automatically, she takes her first argument one step
further and asserts that she was terminated for reasons which
contravene public policy. However, because we conclude that the
trial court did not err in finding that plaintiff's contract was
for a definite term, which defendant did not breach, we do not
reach the additional argument asserted by plaintiff.
Plaintiff next argues the trial court erred by granting
summary judgment in favor of defendant on plaintiff's claim for
wrongful discharge in violation of public policy. In her
complaint, plaintiff alleged that defendant terminated her because
of her age and handicap, thus violating the public policy set out
in N.C. Gen. Stat. § 143-422.2 (2003) which provides that
[i]t is the public policy of this State to
protect and safeguard the right and
opportunity of all persons to seek, obtain and
hold employment without discrimination or
abridgment on account of race, religion,
color, national origin, age, sex or handicap
by employers which regularly employ 15 or more
employees.
For the reasons stated below, we find plaintiff's argument
unpersuasive.
It is well established that "'the tort of wrongful discharge
arises only in the context of employees at will.'" Doyle v.
Asheville Orthopaedic Assocs., P.A., 148 N.C. App. 173, 174, 557
S.E.2d 577, 577 (2001) (quoting Wagoner v. Elkin City Schools' Bd.
of Education, 113 N.C. App. 579, 588, 440 S.E.2d 119, 125, disc.
review denied, 336 N.C. 615, 447 S.E.2d 414 (1994)), disc. review
denied, 355 N.C. 348, 562 S.E.2d 278 (2002). See also Houpe v.
City of Statesville, 128 N.C. App. 334, 343, 497 S.E.2d 82, 89,
disc. review denied, 348 N.C. 72, 505 S.E.2d 871 (1998) ("Wrongful
termination may be asserted 'only in the context of employees at
will,' and not by an employee 'employed for a definite term or
. . . subject to discharge only for "just cause."'" (quoting
Wagoner, 113 N.C. App. at 588, 440 S.E.2d at 125 (citation
omitted)).
As stated above, we conclude that plaintiff was employed for
a definite term and was not an employee at will. Accordingly, she
cannot assert a claim for wrongful discharge in violation of public
policy. Thus, we hold that the trial court did not err in granting
defendant's motion for summary judgment on plaintiff's claim.
Plaintiff next argues the trial court erred by granting
summary judgment in favor of defendant on plaintiff's claim of
infliction of emotional distress. Plaintiff argues that under the
facts of the case before us, "intentional discrimination in
employment in violation of N.C. Gen. Stat. § 143-422.2 issufficient to support a claim for intentional infliction of
emotional distress [IIED.]" As previously stated, N.C. Gen. Stat.
§ 143-422.2 provides that
[i]t is the public policy of this State to
protect and safeguard the right and
opportunity of all persons to seek, obtain and
hold employment without discrimination or
abridgment on account of race, religion,
color, national origin, age, sex or handicap
by employers which regularly employ 15 or more
employees.
We note that plaintiff cites no cases to support her contention
that intentional discrimination in violation of N.C. Gen. Stat. §
143-422.2 is "sufficiently outrageous to shock the collective
conscience of the community[.]" For the reasons stated below, we
do not find plaintiff's argument persuasive.
"The essential elements of IIED are '1) extreme and outrageous
conduct by the defendant 2) which is intended to and does in fact
cause 3) severe emotional distress.'" Guthrie v. Conroy, 152 N.C.
App. 15, 21, 567 S.E.2d 403, 408 (2002) (quoting Waddle v. Sparks,
331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992) (citation omitted)). "In
ruling on a motion for summary judgment, whether a defendant's
alleged acts may be reasonably regarded as extreme and outrageous
is initially a question of law." Shreve v. Duke Power Co., 85 N.C.
App. 253, 257, 354 S.E.2d 357, 359 (1987). "Conduct is extreme and
outrageous when it is 'so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of decency, and to
be regarded as atrocious, and utterly intolerable in a civilized
community.'" Smith-Price v. Charter Behavioral Health, ___ N.C.
App. ___, ___, 595 S.E.2d 778, 782 (2004) (quoting Briggs v.Rosenthal, 73 N.C. App. 672, 677, 327 S.E.2d 308, 311 (citation
omitted), cert. denied, 314 N.C. 114, 332 S.E.2d 479 (1985)).
Furthermore, the statute of limitations for an IIED claim is three
years. See N.C. Gen. Stat. § 1-52(5) (2003); Carter v. Rockingham
Cty. Bd. of Educ., 158 N.C. App. 687, 689, 582 S.E.2d 69, 72
(2003).
We agree with the trial court that defendant committed no acts
within the three-year statute of limitations to support plaintiff's
claims. Plaintiff's forecast of evidence shows that plaintiff may
have been touched inappropriately by another employee in 1986, that
she was transferred numerous times over the next ten years by
defendant, that she was never promoted beyond the entry-level
position of instructor, and that she was terminated from employment
by defendant effective 30 April 1997. The inappropriate touching
occurred fourteen years prior to the filing of plaintiff's
complaint and thus falls well outside the statute of limitations.
Similarly, plaintiff's last transfer occurred in December 1996,
three years and four months before plaintiff filed her complaint.
Therefore, all of plaintiff's transfers also fall outside the
applicable statute of limitations. The only action by defendant
falling within the statute of limitations is defendant's 7 April
1997 notice to plaintiff that plaintiff's employment contract would
not be renewed for the next school year. This action does not rise
to the level of extreme and outrageous conduct by defendant. While
plaintiff may have had strained working relations with defendant,
defendant's actions toward plaintiff did not extend beyond "allpossible bounds of decency[.]" Smith-Price, ___ N.C. App. at ___,
595 S.E.2d at 782 (citation omitted). Accordingly, we hold that
the evidence presented by plaintiff does not demonstrate conduct
rising to the level of extreme and outrageous conduct sufficient to
support a claim for IIED and we affirm the trial court's granting
of defendant's motion for summary judgment on this claim.
We also recognize that plaintiff emphasizes that she did not
specify in her complaint whether she was alleging intentional
infliction or negligent infliction of emotional distress (NIED).
Plaintiff notes that the theories are separate from one another and
have different proof requirements. Nonetheless, without citing any
authority, plaintiff argues that the pleading requirements for NIED
and IIED are the same. Thus, plaintiff argues that even if
defendant's actions do not support a claim for IIED, defendant's
actions certainly support a claim for NIED.
"To state a claim for intentional infliction of emotional
distress ('IIED'), a plaintiff must allege facts showing that the
defendant engaged in '(1) extreme and outrageous conduct, (2) which
is intended to cause and does cause (3) severe emotional distress
to another.'" Chapman v. Byrd, 124 N.C. App. 13, 19, 475 S.E.2d
734, 739 (1996) (quoting Dickens v. Puryear, 302 N.C. 437, 452, 276
S.E.2d 325, 335 (1981)), disc. review denied, 345 N.C. 751, 485
S.E.2d 50 (1997) . In contrast, "to state a claim for negligent
infliction of emotional distress, a plaintiff must allege that:
'(1) the defendant negligently engaged in conduct, (2) it was
reasonably foreseeable that such conduct would cause the plaintiffsevere emotional distress . . ., and (3) the conduct did in fact
cause the plaintiff severe emotional distress.'" Hickman v.
McKoin, 337 N.C. 460, 462, 446 S.E.2d 80, 82 (1994) (quoting
Sorrells v. M.Y.B. Hospitality Ventures of Asheville, 334 N.C. 669,
672, 435 S.E.2d 320, 321-22 (1993) (citation omitted)). Contrary
to plaintiff's assertion, the pleading requirements for NIED and
IIED are not identical.
The allegations for plaintiff's third claim for relief,
"infliction of emotional distress" are as follows:
33. The allegations of paragraphs 1-32
are incorporated herein by reference as if
fully restated.
34. Defendant's conduct toward plaintiff
is extreme and outrageous and exceeds all
bounds usually tolerated by a decent society.
35. Defendant knew at the time of its
actions that plaintiff was fragile, and that
its actions would result in emotional distress
to plaintiff. Defendant acted with callous
disregard to the consequences of its treatment
of plaintiff.
36. Defendant's conduct in fact caused
severe emotional distress to plaintiff.
37. As a result of defendant's actions,
plaintiff suffered severe emotional distress.
38. Plaintiff has suffered damages
exceeding $10,000.00 according to proof at
trial.
We hold that although plaintiff did not specifically designate in
the claim heading whether she was alleging IIED or NIED, the
substance of the allegations indicates that only IIED is alleged.
Accordingly, we do not reach the issue regarding NIED.
Affirmed.
Judges CALABRIA and STEELMAN concur.
Report per Rule 30(e).
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