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Johnson v. Nash Community College

North Carolina Court of Appeals
Apr 1, 2010
No. COA09-57 (N.C. Ct. App. Apr. 1, 2010)


No. COA09-57

Filed 20 April 2010 This case not for publication

Appeal by plaintiff from order entered 8 September 2008 by Judge J. Richard Parker in Nash County Superior Court. Heard in the Court of Appeals 10 June 2009.

Mario M. White for plaintiff-appellant. Tharrington Smith, L.L.P., by Randall M. Roden and Adam S. Mitchell, for defendant-appellee.

Nash County No. 08 CVS 878.

Plaintiff Jamaal Johnson appeals from the trial court's order granting summary judgment in favor of defendant Nash Community College ("the College") on his claim for retaliatory discharge. Because the College met its burden in moving for summary judgment and Mr. Johnson did not submit to the trial court any evidence demonstrating the existence of a genuine issue of material fact, we affirm.


Mr. Johnson, a contract employee of the College, taught basic education skills at a prison in Nash County. On or about 4 October 2005, Mr. Johnson was injured while on the job. He reported the injury to the College and its workers' compensation carrier, Key Risk Management, on 26 January 2006. Mr. Johnson was authorized to see Dr. Greig V. McAvoy at Rocky Mount Orthopedics and obtained an appointment for 9 February 2006. After examining Mr. Johnson, Dr. McAvoy gave him a note indicating that he could continue regular duty work.

On 27 November 2006, Mr. Johnson notified the College that he had been to see another doctor and that he might need surgery. On 31 October 2006, without authorization from the College or Key Risk Management, Mr. Johnson had visited Dr. Raymond Baule in Rocky Mount for an MRI and EMG that showed normal or minor degeneration. After reviewing Mr. Johnson's medical records and talking with Mr. Johnson, Key Risk Management agreed to set up an appointment for Mr. Johnson with Dr. Robert Saul of East Carolina Neurology. Susan Barkalow, the Human Resources Coordinator for the College, called Mr. Johnson several times and sent him a letter by certified mail dated 3 May 2007 notifying him of that appointment, which was scheduled for 8 May 2007.

After Mr. Johnson's appointment with Dr. Saul, Mr. Johnson reported to Ms. Barkalow that Dr. Saul had excused him from work and that the doctor was sending the medical report to Key Risk Management. When Key Risk Management received the medical report, however, it learned that Dr. Saul had in fact concluded that there was no reason Mr. Johnson could not return to his teaching duties, although he was restricted from lifting heavy objects. Dr. Saul reported he had advised Mr. Johnson of his opinion at the examination in response to Mr. Johnson's specific question about whether he could return to work.

By letter dated 21 May 2007, the College notified Mr. Johnson that he was in violation of the College's rules and procedures for workers' compensation approved absences from work. On 25 May 2007, the 3 May 2007 letter sent by the College to Mr. Johnson regarding his 8 May 2007 appointment was returned as "unclaimed" even though it had been sent to the correct address.

Mr. Johnson's complaint alleges that on 30 May 2007, Mr. Johnson served a Form 18 Notice of Accident to Employer and a Form 33 Request for Hearing on the College. The College claims it received these documents on 4 June 2007. According to the College, the decision not to renew Mr. Johnson's contract was made during the week of 28 May 2007 through 1 June 2007. A letter notifying Mr. Johnson of the decision was brought to the president of the College, William S. Carver, II, for his signature on 6 June 2007. President Carver claims that, at that time, he had not been told that the College had received a request for a workers' compensation hearing. Mr. Johnson received a letter a day later explaining that his contract would not be renewed due to his failure to comply with the College's workers' compensation leave policy.

On 15 April 2008, Mr. Johnson filed an unverified complaint in Nash County Superior Court, asserting a cause of action against the College for retaliatory discharge. In his complaint, Mr. Johnson alleged that the College had failed to renew his contract in retaliation for his filing a workers' compensation claim, hiring a lawyer, and requesting a hearing on contested issues.

On 15 August 2008, the College filed a motion for summary judgment, attaching affidavits from President Carver and Ms. Barkalow. In addition to the two affidavits, the College also submitted to the trial court an initial and final agency decision of the Employment Security Commission ("ESC") concluding that Mr. Johnson had been discharged for misconduct connected with work and affirming the adjudication disqualifying him from receiving unemployment benefits. The College also submitted the superior court order affirming the ESC decision.

In President Carver's affidavit, he stated that he had personally made the decision not to renew Mr. Johnson's contract based on the recommendation of Ms. Barkalow. According to President Carver, "[t]he reason for not renewing Mr. Johnson's contract was that he had been absent from work for a significant period without approval and without a proper medical authorization from a physician approved by the administrators of the State Workers Compensation program." In addition, "Mr. Johnson had misrepresented his authorization to work status to the College by telling Ms. Barkalow that Dr. Robert Saul had given him a written excuse from work, which was not true, and he did not accept certified mail from the College regarding his employment and his status."

President Carver asserted in his affidavit:

My decision was not influenced in any way by Mr. Johnson's having engaged an attorney to seek a hearing before the North Carolina Industrial Commission regarding Workers Compensation benefits, since I did not know about that either at the time the staff made its recommendation to me, or later when I signed the official letter notifying Mr. Johnson of the College's decision not to renew his contract.

President Carver explained further that he spoke with Ms. Barkalow and made the decision about Mr. Johnson's employment status during the week of 28 May through 1 June 2007, prior to any notice to the College regarding Mr. Johnson's request for a workers' compensation hearing.

According to President Carver, the letter notifying Mr. Johnson of his non-renewal was prepared early the following week, and President Carver signed that letter and sent it to Mr. Johnson on 6 June 2007. President Carver stated:

I did not know when I signed the letter that Mr. Johnson had filed a request for hearing on Workers Compensation. That action by Mr. Johnson had nothing to do with my decision regarding Mr. Johnson's contract. Although I now know, from having been told and having reviewed the documents, that the College received a copy of the hearing request by Mr. Johnson's attorney on June 4, 2007. I did not know that at the time we acted on Mr. Johnson's contract status, the attorney's letter was delivered to the College's HR Office and to our insurance carrier, Key Risk Management. I did not learn about Mr. Johnson's request for a Workers Compensation hearing until much later, when I was advised that he had filed a lawsuit regarding the non-renewal of his contract in which it was alleged the College had retaliated against him for seeking a hearing on Workers Compensation.

President Carver concluded by asserting that "[t]he College's decision not to renew [Mr. Johnson's] contract was based on his unacceptable actions and behavior as an employee."

Ms. Barkalow's affidavit similarly stated that "[t]he decision not to renew Mr. Johnson's contract was made before the College knew Mr. Johnson had filed a request for hearing before the Industrial Commission. . . ." She claimed that Mr. Johnson's annual contract was not renewed due to a period of extended unauthorized absence from work, misrepresentation of his status

regarding medical authorization to return to work, refusal to comply with College policies and procedures regarding medical examination by approved physicians for purposes of Workers Compensation and failure to answer telephone calls or accept certified mail notification from the College regarding his absence from work, his medical authorization to return to work, sick leave and related topics.

Although Mr. Johnson was served on 15 August 2008 with notice that the summary judgment hearing had been calendared for 8 September 2008, Mr. Johnson filed no brief or evidence in response to the summary judgment motion. In addition, Mr. Johnson and his counsel did not appear for the summary judgment hearing.

On 8 September 2008, the trial court entered an order granting summary judgment to the College. The court determined that Mr. Johnson was "unable to forecast any evidence which rebuts the Affidavits and exhibits submitted on behalf of the College that show the College was not aware of the Workers Compensation filing and did not consider that filing as part of its consideration of the events and circumstances when it made the decision not to renew Mr. Johnson's contract." Additionally, the trial court concluded that Mr. Johnson's claim was barred by collateral estoppel or res judicata as a result of the ESC's determination, as upheld by the superior court, that Mr. Johnson had been terminated for misconduct. Mr. Johnson timely appealed to this Court from the order granting summary judgment.


This Court reviews a trial court's ruling on a motion for summary judgment de novo. Falk Integrated Techs., Inc. v. Stack, 132 N.C. App. 807, 809, 513 S.E.2d 572, 574 (1999). "Summary judgment is appropriately granted if `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.'" Id., 513 S.E.2d at 573 (quoting N.C.R. Civ. P. 56(c)). The moving party has the burden of establishing a lack of any triable issue, and we consider the evidence in the light most favorable to the non-moving party. Id., 513 S.E.2d at 573-74.

Mr. Johnson first contends that the trial court erred in basing its summary judgment decision on the absence of a genuine issue of material fact as to the merits of his claim because the College's motion did not include that ground as a basis for granting its motion. We disagree. Our review of the motion indicates that the College argued both claim preclusion and the merits. Indeed, the affidavits of President Carver and Ms. Barkalow, attached to the motion, address only the merits of Mr. Johnson's claim and do not address the claim preclusion argument.

Turning to the question whether the trial court properly concluded that no genuine issue of material fact existed, we first note that "a prima facie showing of retaliatory discharge requires a plaintiff to show: (1) he engaged in some protected activity . . .; (2) the employer took adverse employment action against plaintiff; and (3) that the protected conduct was a substantial or motivating factor in the adverse action (a causal connection existed between the protected activity and the adverse action)." Employment Sec. Comm'n of N.C. v. Peace, 128 N.C. App. 1, 9, 493 S.E.2d 466, 471 (1997), aff'd in part, appeal dismissed and disc. review improvidently allowed in part, 349 N.C. 315, 507 S.E.2d 272 (1998). In this case, the College argues that no issue of fact existed as to the third element of the claim.

President Carver's and Ms. Barkalow's affidavits set out facts indicating that the decision not to renew Mr. Johnson's contract, which was made before they knew he had requested a workers' compensation hearing, was based on his absences from work without permission, violation of the College's policy on leave, and misrepresentations about his ability to return to work. This forecast of evidence was sufficient to meet the College's burden on the motion for summary judgment.

Once the moving party on a motion for summary judgment has shown the absence of a genuine issue of material fact, "the burden shifts to the nonmoving party to `produce a forecast of evidence demonstrating that the [nonmoving party] will be able to make out at least a prima facie case at trial.'" DeWitt v. Eveready Battery Co., 355 N.C. 672, 681-82, 565 S.E.2d 140, 146 (2002) (quoting Collingwood v. Gen. Elec. Real Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989)). Here, Mr. Johnson filed nothing in opposition to the motion for summary judgment.

Mr. Johnson contends, however, that the affidavits submitted by Ms. Barkalow and President Carver were signed in bad faith. According to Mr. Johnson, in the proceeding before the ESC, Ms. Barkalow "previously testified under oath to exactly the opposite of what she stated in the affidavit." Although the testimony referenced in Mr. Johnson's brief is not contained in the record on appeal, Mr. Johnson asks this Court to take judicial notice of the record in his appeal of the ESC decision, which includes that evidence.

We cannot rely upon evidence submitted in an unrelated case to justify overturning the summary judgment order. Mr. Johnson is asking this Court to consider evidence that was not submitted to or considered by the trial court, which we cannot do. See Cunningham v. Cunningham, 171 N.C. App. 550, 562, 615 S.E.2d 675, 684 (2005) (explaining that "this Court's review is limited to the record on appeal and the verbatim transcript of the proceedings, and judicial notice is not a substitute for the proper compilation of evidence that could have been submitted to the trial court during the hearing and included in the record on appeal"). We cannot determine that a trial court erred based on evidence that the trial court never saw. It is well established that an appellate court "will not consider arguments based upon matters not presented to or adjudicated by the trial tribunal." State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991).

In addition, Mr. Johnson's proposed record on appeal served in this case attempted to include the record on appeal for the appeal from the ESC decision. When the College objected to Mr. Johnson's proposed record on appeal on the grounds that the ESC record was not part of the record in this case, Mr. Johnson filed a statement that he was not requesting judicial settlement of the record. The record on appeal was, therefore, deemed settled in accordance with the College's objections by operation of Rule 11(c) of the Rules of Appellate Procedure. See N.C.R. App. P. 11(c) ("If any appellee timely serves amendments, objections, or a proposed alternative record on appeal, and no judicial settlement of the record is timely sought, the record is deemed settled as of the expiration of the ten-day period within which any party could have requested judicial settlement of the record on appeal under this Rule 11(c)."). As a result, the evidence upon which Mr. Johnson now attempts to rely was excluded from the record on appeal and cannot be considered by this panel. See Coiner v. Cales, 135 N.C. App. 343, 346, 520 S.E.2d 61, 62 (1999) (refusing to consider affidavit excluded from record on appeal by trial court, since order settling record on appeal is final order, and no petition for writ of certiorari was filed), disc. review denied, 351 N.C. 352, 542 S.E.2d 206 (2000).

In sum, because Mr. Johnson makes no argument that the College's evidence was insufficient to shift the burden to him and because he submitted no evidence on his own behalf showing the existence of a genuine issue of material fact, we hold that the trial court properly granted summary judgment to the College. Since we are resolving Mr. Johnson's appeal on this basis, we need not address the question whether the decision of the superior court in the appeal from the ESC final agency decision could give rise to a defense of res judicata or collateral estoppel.


Judges ROBERT C. HUNTER and STEELMAN concur.

Report per Rule 30(e).

Summaries of

Johnson v. Nash Community College

North Carolina Court of Appeals
Apr 1, 2010
No. COA09-57 (N.C. Ct. App. Apr. 1, 2010)
Case details for

Johnson v. Nash Community College

Case Details

Full title:JAMAAL JOHNSON, Plaintiff, v. NASH COMMUNITY COLLEGE, Defendant

Court:North Carolina Court of Appeals

Date published: Apr 1, 2010


No. COA09-57 (N.C. Ct. App. Apr. 1, 2010)