An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-885


Filed: 3 August 2004


     v .                                 Stanly County
                                        No. 00 CVS 1678

    Appeal by plaintiffs from order entered 27 November 2002 by Judge Sanford L. Steelman in Stanly County Superior Court. Heard in the Court of Appeals 31 March 2004.

    Steven F. Blalock and Barry Nakell, for plaintiff appellant.

    Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Jill R. Wilson and Elizabeth V. LaFollette, for Stanly County Board of Education defendant appellee.

    Cranfill, Sumner & Hartzog, L.L.P., by Ann S. Estridge, for Jeffrey C. Moss defendant appellee.

    McCULLOUGH, Judge.

    The issues of this appeal from summary judgment arise from the following undisputed facts: In the summer of 1993, the Albemarle City Schools hired plaintiffs Jack Gaster and Baxter Morris as teachers at Albemarle High School. At that time, Albemarle operated its own local school administrative unit. Gaster was hired as a physical education teacher, and Morris was hired as a biology teacher. Additionally, Gaster was asked to be head football coachand athletic director; Morris was asked to be assistant football coach. Both agreed and signed probationary teaching contracts for the 1993-1994 school year. These contracts contained “special conditions” requiring both plaintiffs to fulfill their coaching duties to keep their probationary teacher status, and Gaster to fulfill his duty as athletic director. Failure to do this would be cause for termination. Plaintiffs began working prior to the start of the school year. On 15 July 1993, Gaster wrote a letter to the Assistant Superintendent of Albemarle City Schools requesting $1,600 in summer pay for performing various maintenance tasks around campus and supervising the school's weight room. Gaster received no compensation. Morris also performed these tasks and received no compensation.
    Plaintiffs signed a second probationary contract for the 1994- 1995 school year. These contracts contained the same “special conditions.” During the summer of 1994, Gaster received an additional month's pay for performing the same maintenance tasks and weight room supervision. Morris did not.
    At a 9 March 1995 Albemarle City Schools Board of Education meeting, the Board approved the recommendation that:
        Extended Length of Time Athletic Director/football coach at Albemarle High School and one other coach as designated by the athletic director and the high school principal.

(“Extended Employment”). Based upon this recommendation by the Albemarle School Board and starting in the summer of 1995, Gaster was to be paid two additional months (totaling 12 months), andMorris was to be paid one additional month (totaling 11 months).     In May of 1995, plaintiffs signed “Career Contracts” with Albemarle City Schools. These contracts did not reference any Extended Employment. Both plaintiffs received their additional pay for that summer, performing summer athletic and maintenance duties at the school. The duties, among other things, included: painting, repairing athletic equipment, maintaining athletic fields, trimming hedges, servicing drink machines, and painting athletic facilities. Plaintiffs also supervised the school's weight room, an area which was not restricted to Albemarle students or athletes.
    On 7 November 1996, the Albemarle City School System, composed of one school, merged with the Stanly County School System, composed of three schools. One Board of Education (“the Board”) then became the successor in interest to both Albemarle City School System and the Stanly County School System, thus governing four schools. After the merger, the Board began to address issues related to the differences between the two systems and sought to make changes to achieve parity among the schools. During this process, the Board discovered that plaintiffs were the only coaches of the four schools receiving compensation for summer work, though the three other schools had some sort of summer athletic program. On 2 June 1998, the Board decided to “leave the summer athletic program at Albemarle High School intact as it now exists for two years, FY 1997-98 and FY 1998-99, pending a thorough review and evaluation of the program.” The Board instructed the Superintendent of the newly merged system to inform plaintiffs thatthey might be in jeopardy after the summer of 1999.
    In the spring of 1999, an Interim Superintendent wrote plaintiffs explaining that the Board had only approved funding for their summer employment through 1999. He noted that he did not know how the Board would resolve the issue of their summer pay, but that “[t]he Board does desire to achieve uniformity for all high schools and most likely will arrive at that point during the budget process.”
    On 1 January 2000, defendant Jeffrey C. Moss became the Superintendent of the merged system. Approximately a month after Moss became Superintendent, the Board's finance committee began developing a proposed budget for the 2000-2001 fiscal year. During the February 2000 finance committee meeting, plaintiffs met with the committee to discuss their summer athletic program and maintenance of the athletic facilities during the summer. During the budget process, the finance committee decided to include $8,000 of funding for summer athletics and maintenance, $2,000 for each school. The proposed budget did not include funding for plaintiffs' summer pay. The Budget was approved on 11 April 2000 by the Board.     Plaintiffs attended the Board's next meeting on 6 June 2000. They had been informed by Moss that they would be given an opportunity to voice concerns as to their lost pay. At the meeting, plaintiffs were represented by an attorney, and were allowed to present testimony on their behalf by the principal of Albemarle High School. The Board directed its lawyer, Mark Lowder, to research whether plaintiffs had any contractual rights to theirsummer pay, and that if it was determined they did not, Lowder was to write plaintiffs a letter informing them that their summer pay was effectively eliminated. Having found there to be no contractual obligation, Lowder wrote plaintiffs a letter, dated 20 June 2000, informing them that their Extended Employment pay had been eliminated.
    Plaintiffs initially brought suit against the Board and Moss (and eight other individuals who have since been dismissed) on 1 December 2000. Plaintiffs alleged claims for violations of N.C. Gen. Stat. § 115C-325 (the career contract statute), violations of plaintiffs' federal constitutional rights, breach of contract, punitive damages and injunctive relief. Plaintiffs amended their complaint to allege violations of defendants' lack of “official action” in terminating plaintiffs extended employment. Upon motion by defendants, summary judgment was entered in their favor on all claims.
    Plaintiffs included seven assignments of error in the record on appeal. However, not one of these assignments concerns Superintendent Moss. Therefore, pursuant to Rule 10(a) of the North Carolina Rules of Appellate Procedure, summary judgment in his favor is hereby affirmed.
    The remaining defendant then is the Board. Plaintiffs properly raise three issues in this appeal as to why summary judgment should be in their favor, and not the Board's. They are as follows: (I) that all evidence before the court showed the extended employment payments were continuing in nature and the Board nevertook the requisite “official action” to terminate them; (II) that no “official action” was taken to terminate plaintiffs' contract rights of Extended Employment and defendant is in breach; and (III) failure to make payments for their Extended Employment without any authorization by the Board is a violation of due process. For the reasons set forth below, we find summary judgment was properly granted without error in favor of the Board.

Standard of Review
    Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen. Stat. § 1A-1, Rule 56(c) (2003). In making this determination, "the evidence presented by the parties must be viewed in the light most favorable to the non-movant." Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998). The party moving for summary judgment has the burden of establishing the absence of any triable issue of fact, which may be satisfied by showing that the party cannot overcome an affirmative defense which would bar the claim. Taylor v. Ashburn, 112 N.C. App. 604, 606-07, 436 S.E.2d 276, 278 (1993), cert. denied, 336 N.C. 77, 445 S.E.2d 46 (1994). "Once the movant has established its right to summary judgment, the non-movant may not rest upon conclusory allegations but must come forward with affidavits showing that a material factual dispute exists." Pierce Concrete, Inc. v. Cannon Realty & Construction Co.,77 N.C. App. 411, 412, 335 S.E.2d 30, 31 (1985). With this standard of review in mind, we turn to the case before us.
I. Extended Employment
    In their first issue on appeal, the gravamen of plaintiffs' claim is that the Board took no official final action, as required by statute to be taken in an open meeting, in or around June of 2000 to terminate the Extended Employment of plaintiffs. We disagree with plaintiffs that their Extend Employment required such action.
    North Carolina's statute governing when a meeting of a public body can be closed, provides that:
            (a) Permitted Purposes. -- It is the policy of this State that closed sessions shall be held only when required to permit a public body to act in the public interest as permitted in this section. A public body may hold a closed session and exclude the public only when a closed session is required:

                (6)    . . . Final action making an appointment or discharge or removal by a public body having final authority for the appointment or discharge or removal shall be taken in an open meeting.

N.C. Gen. Stat. § 143-318.11 (2003) (the “Open Meetings Law”). Nowhere does Chapter 143 define “final action,” “discharge,” or “removal.” Case law interpreting this particular statute is scarce, and of limited assistance. However, we do not see any ambiguity in the statute's application to the facts of the case at bar. Plaintiffs have not been “discharged” or “removed.” They still possess career teacher status and their positions in the athleticsdepartment (in which there is no career status). See Babb v. Harnett County Bd. of Education, 118 N.C. App. 291, 295, 454 S.E.2d 833, 836 (1995), disc. review denied, appeal dismissed, 340 N.C. 358, 458 S.E.2d 184 (1995) (there is no tenure in coaching positions).
    Plaintiffs have not been removed or discharged in any respect. Therefore, we hold that no final action was required to be taken in adjusting plaintiffs' duties and pay relating to their coaching status. Budget shifts such as the one at issue are inherent in the year-to-year choices schools are forced to make, and employees of schools do not have rights requiring “final action” when any shift in funding disrupts compensation for duties ancillary to their tenured work. Such decisions and shifts in funding are inevitable when school systems merge and Boards seek to have some parity between all schools in the system.
    Additionally, though plaintiffs have abandoned any argument as to tenure in their summer work pursuant to N.C. Gen. Stat. § 115C- 325, the career contract statute is important in considering whether plaintiffs or any part of their career teacher status was “discharged” or “removed” requiring final action under the Open Meetings Law. In the definition section of N.C. Gen. Stat. § 115C- 325, “demote” is defined as:
        [T]o reduce the salary of a person who is classified or paid by the State Board of Education as a classroom teacher or as a school administrator. The word “demote” does not include:...(iii) any reduction in salary that results from the elimination of a special duty, such as the duty of an athletic coach ora choral director.

N.C. Gen. Stat. § 115C-325(a)(4) (2003) (emphasis added). As tenured teachers, the loss of summer duties and pay was not even a demotion.
    Furthermore, final action was taken in an open meeting for the necessary budgetary decisions made by the Board in adopting the budget as proposed in an 11 April 2000 meeting.   (See footnote 1)  One such decision was choosing not to continue the extended employment for summer work allocated to the non-tenured special duties held by plaintiffs, but to instead allocate each school $2,000 within the system for “ATHLETIC DIRECTOR SUMMER WORK.” Arguably, this money was free to be used to provide some compensation for similar extended summer employment for plaintiffs and similarly situated coaches and athletic directors in the merged system. While the budget shift was not explicit as to affecting plaintiffs' positions, plaintiffs had been given ample notice such changes were being considered and that the budget would make clear whether their Extended Employment funding would be continued. Notice was first given to plaintiffs in the spring of 1998 when they were informed their summer pay would be reconsidered in two years. After two years, on or around 20 June 2000, they received a letter from the Board's attorney giving them clear notice that funding for their summer duties had been cut.     Plaintiffs cite Jacksonville Daily News Co. v. Onslow County Bd. of Education, 113 N.C. App. 127, 439 S.E.2d 607 (1993) for their argument that these budget cuts were not properly of record in the 11 April 2000 open meeting. In Jacksonville, the school board voted in public session to delete from their budget pay raises for members of the Board. When additional funds became available, the Board Chair determined that the pay raises could be implemented and should be made retroactive. The Chair telephoned all members of the Board but one to obtain their approval. We do not find that case applicable to the case at bar, and read the holding in that case as narrowly as we stated it:
            We hold that an action by the Board to give itself a pay raise must be deliberated at a meeting open to the public. We find that such deliberations and actions are exactly the type of “deliberations” and “actions” that the General Assembly intended be conducted openly at a public meeting.

Id. at 130, 439 S.E.2d at 609. In that case the open meeting only gave notice to the public that the Board's pay raise was being deleted, when the result was the opposite. Here, after clear notice to plaintiffs, the budget showed that summer program funds for all four schools was $8,000 ($2,000 per school), and there was no mention in the budget of extended summer pay to individual athletic positions. This was sufficient notice of a budget shift in an open meeting.
     We hold, as a matter of law, that the facts of this case do not implicate N.C. Gen. Stat. § 143-318.11(a)(6) and do not require a final action in an open meeting as to the plaintiffsindividually. Plaintiffs' tenured status as teachers has been unaffected. There has been no discharge or removal from their positions, and only a discretionary shift in the budget. The record reveals the budget was properly approved in an open meeting.
    Therefore, we overrule all assignments of error on this issue.
II. Breach of Contract
    Plaintiffs next contend that they possessed contractual rights in their summer obligations and pay. They argue that the language of their career contracts protected both the Board and plaintiffs as to carrying out their athletic obligations. And, further, because these contracts where signed only two months after the Albemarle City School Board approved the Extended Length of Employment, the contract rights were established as to the Extended Employment and payment under their career contracts. We disagree.
    When the language of a contract is plain and unambiguous then construction of the agreement is a matter of law for the court. Whirlpool Corp. v. Dailey Construction, Inc., 110 N.C. App. 468, 471, 429 S.E.2d 748, 751 (1993). The “special conditions” portion of Gaster's career contract states:
        To fulfill the responsibilities as Athletic Director and Head Football Coach for the life of this contract. Failure to continue to fulfill assigned coaching duties and duties as Athletic Director is cause for dismissal pursuant to N.C.G.S. § 115-325(e)(1)(d) and (j).

The “special conditions” portion of Morris's contract states:
        To fulfill the responsibilities as Assistant Football Coach for the life of this contract. Failure to continue to fulfill assignedcoaching duties is cause for dismissal pursuant to N.C.G.S. § 115-325(e)(1)(d) and (j).

The recommended Extended Employment passed by Albemarle City School Board extended the scope of the responsibilities of the “[a]thletic director/football coach” and “one other coach designated by the athletic director and the high school principal.” The Extended Employment recommended by the Board went to the scope of the job description of the “athletic director/football” coach, not any rights specific to plaintiff Gaster. One aspect of this job description was that he appoint “any coach” to assist him in the obligation of the extended employment, not necessarily plaintiff Morris. The Board was free to redefine the scope of the athletic director/football coach as funding so necessitated, without affecting any contractual obligations of the Board. The fact that the Board cut specific funding for payment of the summer obligations from the position of athletic director/football coach (Gaster) and the additional appointed coach (Morris) did not affect any contractual rights held by plaintiffs.
    The only contractual rights held by plaintiffs are their career contracts. These rights granting plaintiffs' career status were conditioned on fulfilling their duties as coaches. However, the contract did not guarantee to plaintiffs' their career status in their coaching positions, and therefore it surely did not guarantee them rights in the specific scope of their coaching positions. These were conditions of plaintiffs' career status which the Board had the choice to enforce or not. See Babb, 118N.C. App. at 294, 454 S.E.2d at 835 (where the court found a clause in a coaching contract requiring mutual consent to “change” a coach's duties, and did not require the coach's consent to terminate those duties). No language in the condition required the Board or school to keep plaintiffs as coaches. The Board would be free to replace plaintiffs in their coaching positions (though, if doing so, clearly would have no grounds under plaintiffs' contracts to terminate their career status).
    Additionally, even if the Extended Employment constituted an individual contract, separate from the career contract, it is a settled rule of law in North Carolina and other jurisdictions that employment for an indefinite term is regarded as employment-at-will which may be terminated at any time by either party. Roberts v. Wake Forest University, 55 N.C. App. 430, 434, 286 S.E.2d 120, 123 (1982), disc. review denied, 305 N.C. 586, 292 S.E.2d 571 (1982) (golf coach). Both private and public employees may be classified as at-will employees. An employer may discharge an at-will employee for any reason, including those which are arbitrary, irrational, or illogical, without incurring liability. Woods v. City of Wilmington, 125 N.C. App. 226, 229, 480 S.E.2d 429, 432 (1997). An at-will employee has no protected property right in his employment, unless such right is created by statute, ordinance or contract. Evans v. Cowan, 132 N.C. App. 1, 6-7, 510 S.E.2d 170, 174 (1999); Peace v. Employment Sec. Comm'n, 349 N.C. 315, 321, 507 S.E.2d 272, 277 (1998), motion denied, 516 U.S. 1144, 143 L. Ed. 2d 1030 (1999). While exceptions have eroded the doctrine to some extent,we do not find that the facts of this case implicate any of these exceptions. See, e.g., Still v. Lane, 279 N.C. 254, 259, 182 S.E.2d 403, 406-07 (1971) (Where a business usage, or other circumstance, appearing on the record, or of which the court may take judicial notice, which shows that at the time the parties contracted, they intended the employment to continue through a fixed term, the contract cannot be terminated at an earlier period except for cause or by mutual consent); Coman v. Thomas Manufacturing Co., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989) (Adopting the public policy exception to the at-will employment doctrine).
    Assuming plaintiffs have sufficiently forecast evidence as to some separate contractual relationship between themselves and the Board for their summer duties and pay, such employment in this instance is clearly at-will under North Carolina law. Plaintiffs have forecast no evidence sufficient to indicate any fixed term as to their summer duties. Nor do we find, sua sponte, any custom or usage in the context of extended employment relating to the summer duties at issue in this case that would require consent by either party to terminate such duties or a court to find some cause in terminating them. Therefore, if it indeed ever existed, plaintiffs' at-will contract was terminated by letter from the Board's attorney to plaintiffs' attorney on 20 June 2000, stating: “As of this date they [plaintiffs] do not have extended employment.” Therefore, we overrule all assignments of error on this issue.
III. Due Process
    Plaintiffs' third issue on appeal alleges that they have been denied due process in the termination of their Extended Employment. See Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548 (1972). They argue that they possessed a property interest in their summer duties and summer pay. We disagree.
    As we have determined in this opinion that plaintiffs were at best at-will employees of the school in carrying out their summer duties, we need not address in-depth the issue of due process. In North Carolina, the law is clear that an at-will employee has no cognizable property right in his employment, and is barred from bringing a due process claim. McCallum v. N.C. Coop. Extension Serv., 142 N.C. App. 48, 59, 542 S.E.2d 227, 236, appeal dismissed, disc. review denied, 353 N.C. 452, 548 S.E.2d 527 (2001); see also Richards v. Board of Education, 58 Wis. 2d 444, 452-53, 206 N.W.2d 597, 601 (1973). Therefore, we overrule all assignments of error on this issue.
    As plaintiffs seek summary judgment from this Court and contend no disputed facts, and as we can find none, summary judgment is the appropriate disposition of this case. After thorough review of the records and briefs, we affirm the trial court's grant of summary judgment in favor of defendants.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

Footnote: 1
    We find irrelevant the source of the budget's funding, whether state or local, for plaintiffs' extra month's summer pay.

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