350 S.E.2d 376 | N.C. Ct. App. | 1986
Randall K. ROSE
v.
The CURRITUCK COUNTY BOARD OF EDUCATION.
Court of Appeals of North Carolina.
*378 Ferguson, Stein, Watt, Wallas and Adkins, P.A. by John W. Gresham, Charlotte, for plaintiff-appellant.
White, Hall, Mullen, Brumsey and Small by William Brumsey, III, Elizabeth City, for defendant-appellee.
PARKER, Judge.
Plaintiff assigns error to the trial court's granting of summary judgment for defendant. In deciding whether this assignment of error is meritorious, we must resolve the underlying question whether, as a matter of law, under the Teacher Tenure Act, a career teacher assigned duties as a probationary principal can resign those duties and claim rights as a career teacher.
We note at the outset that G.S. 115C-325 (formerly G.S. 115-142) does not address this specific question. In construing the statute, we must endeavor to ascertain the legislative intent from the language of the statute and its purpose. The recognized purpose of the Teacher Tenure Act is to provide greater job security for career public school teachers by granting tenure to educators who successfully complete a probationary status. Thompson v. Board of Education, 292 N.C. 406, 233 S.E.2d 538 (1977).
As originally drafted, the statute did not contain the second paragraph of G.S. 115C-325(d)(2). This paragraph was added by the 1983 amendment enacted in Chapter 770 of the 1983 Session Laws and entitled "An Act to Clarify the Provisions of the Fair Employment and Dismissal Act." Under this provision, a person retains his or her status as a career teacher during the probationary period as a principal. G.S. 115C-325(d)(2). Therefore, in the instant case, the school board could not have refused to renew plaintiff's principal's contract and dismissed him from employment without satisfying the procedural requirements set forth in G.S. 115C-325(e) for a career teacher.
Defendant argues that because plaintiff resigned he automatically forfeited his rights as a career teacher and the dismissal procedures for career teachers are inapplicable. We do not agree. To hold that a probationary principal cannot resign as a principal and assert his or her rights as a career teacher, in our judgment, would discourage career teachers from seeking to become career principals. Experience teaches that some people who are excellent teachers may discover after a year or two years that they are not suited either by reason of ability or personal preference to administrative duties. For such a person to be forced to sacrifice everything he has earned as a career teacher in order to extricate himself from an administrative position during the probationary period is not in keeping with either the intent or spirit of the Teacher Tenure Act. On the other hand, public policy protecting the best interests of the students and the educational system dictates that the Board of Education and the superintendent should not be permitted to circumvent the statutory requirements respecting a career teacher by letting an unsatisfactory situation continue. We hold, therefore, that plaintiff as a probationary principal had a statutorily protected right in his job as a career teacher *379 and that, absent plaintiff's resignation as a career teacher, defendant could not take this right away without affording him the statutorily mandated procedures of notice and hearing.
Defendant also argues that plaintiff's action filed 25 March 1985 was barred by the two year statute of limitations set out in G.S. 1-53(1), which applies to an action upon a contract against a local unit of government. We do not agree. In our view, the applicable statute of limitations is the three year statute in G.S. 1-52(2) "upon a liability created by statute," and plaintiff's action is not barred.
Since defendant has not shown entitlement to summary judgment as a matter of law, it was error for the trial court to enter summary judgment for defendant. G.S. 1A-1, Rule 56.
Next, we must determine whether the trial court should have granted plaintiff's motion for summary judgment. We hold that the trial court did not err in denying plaintiff's motion. A motion for summary judgment is proper only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Zimmerman v. Hogg and Allen, 286 N.C. 24, 209 S.E.2d 795 (1974). Considering the affidavits of both parties, including the exhibits attached thereto, we hold there exists a genuine issue of fact as to whether plaintiff intended to resign as a career teacher or whether he intended to resign only as a principal.
In making its determination, the jury is entitled to consider all evidence bearing on the circumstances surrounding plaintiff's resignation including, but not limited to, evidence, if any, of discussions with the superintendent and members of the Board of Education in the spring of 1982 concerning a teaching position, correspondence and conferences between plaintiff and the superintendent and plaintiff's conduct subsequent to the 16 July 1982 letters.
If the jury should determine that plaintiff intended to resign only from his position as a principal, and not as a teacher, then plaintiff would be entitled to a salary adjustment to compensate him for loss of salary and benefits which he suffered because of his improper dismissal. See Faison v. New Hanover Co. Board of Education, 75 N.C.App. 334, 330 S.E.2d 511 (1985).
The order appealed from is reversed and this cause is remanded for a full trial on the merits.
Reversed and Remanded.
WEBB and EAGLES, JJ., concur.
