Gilreath v. North Carolina Department of Health & Human Services

HUNTER, Judge,

concurring in part and dissenting in part.

Although I concur with the majority opinion that plaintiff failed to preserve her assignment of error as to the motion to strike, I respectfully dissent from the majority’s holding that defendant’s affidavits should have been excluded as hearsay.

As noted by the majority, the dispositive issue in this matter is whether an issue of material fact exists concerning the rate at which plaintiff should have been paid for her on-call time. The trial court found as fact that the pay rate for on-call employees of the Whitaker School, which included plaintiff, was set at $0.94 per hour. The find *507 ing is based on the affidavit of Debbie Johnson (“Johnson”), the Director of Human Resources at John Umstead Hospital, and an exhibit attached to her affidavit.

The majority finds that the affidavit of Johnson, as well as those of two other affiants who stated that the pay rate for Whitaker was $0.94, do not appear to be based on personal knowledge, as they are not members of the Whitaker School Management Team and were not involved in the establishment of the pay rate. The majority thus concludes that such statements must be hearsay and therefore should not be considered by the trial court in a motion for summary judgment.

The North Carolina Rules of Civil Procedure state that affidavits in support of a motion for summary judgment “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” N.C. Gen. Stat. § 1A-1, Rule 56(e) (2005). This Court has held that when a Rule 56 affidavit does not specifically state that it is based on “personal knowledge,” it may still be sufficient if its content and context show its material parts are founded on the affiant’s personal knowledge. Hylton v. Koontz, 138 N.C. App. 629, 634 , 532 S.E.2d 252, 256 (2000). We note that in the instant case it is unnecessary to consider the context and content in an attempt to determine if Johnson had personal knowledge. Unlike in Hylton , Johnson specifically averred personal knowledge of the contents of her affidavit.

Despite Johnson’s averment of personal knowledge, however, the majority’s analysis assumes that as Johnson did not herself set the rate, her knowledge of that information was not personal and must be hearsay. In Moore v. Coachmen Industries, Inc., 129 N.C. App. 389 , 499 S.E.2d 772 (1998), this Court held that “[t]he fact that an affiánt’s knowledge was gathered from business records or communications is not fatal to the Rule 56(e) requirement that an affidavit be based on the personal knowledge of the affiant.” Id. at 394 , 499 S.E.2d at 776 . In Moore , the challenged affidavit was from a senior corporate attorney employed by the defendant who made statements regarding the business practices of the defendant with regards to warranties. The affiant in Moore stated that the vehicle sold to the plaintiff by a third-party dealer was covered by no warranty from the defendant other than the new vehicle limited warranty. Although the affiant had not personally handled the sale of the vehicle, since “[b]oth of the affidavits were made upon [the senior corporate attorney’s] personal *508 knowledge, acquired through review of his employer’s business records[,]” Moore found the affidavits to be competent evidence. Moore, 129 N.C. App. at 396 , 499 S.E.2d at 777 .

Here, similarly, Johnson averred that she was the Director of Human Resources for John Umstead Hospital and had previously been the Assistant Director of Human Resources. Johnson stated that the Umstead Human Resources office also provided human resources functions for the Whitaker School, including distribution of pay stubs to employees. Johnson stated that on 31 January 2001, she “informed the Payroll Office of Whitaker School’s decision to establish a $0.94 per hour on-call rate via facsimile[.]” A copy of the facsimile, dated “1-31-01” was attached to Johnson’s affidavit as Exhibit 7, and stated “[i]t is official . . . Whitaker & Town are still .94<t/hr[,]” followed by Johnson’s initials. An additional exhibit, a memorandum to Institution Human Resources Managers from the Department of Health and Human Services, dated 22 May 2000, directs the human resource managers to determine eligibility for on-call pay and report the information to the Department. Here, in addition to Johnson’s clear averment that the pay rate for Whitaker was within her’personal knowledge, it is apparent that Johnson’s review and reporting of business records for Whitaker provides an appropriate basis for her personal knowledge of that information. See Moore, 129 N.C. App. at 396 , 499 S.E.2d at 777 .

Moreover, Rule 56(e) states that:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

N.C. Gen. Stat. § 1A-1, Rule 56(e); see also Brown v. City of Winston-Salem, 171 N.C. App. 266, 275 , 614 S.E.2d 599, 604-05 (2005) (holding summary judgment was properly granted when the plaintiff failed to file affidavits contradicting factual matters established by the defendant’s affidavits).

I note that here, plaintiff, in her own motion for summary judgment, does not contest that the correct pay rate for Whitaker school was established at $0.94 per hour. Rather, plaintiff’s own affidavit *509 states only that she was told that she would be paid “between $0.94 and $2.00/hour for my on-call time[,]” but does not aver that she was told she would be paid at the higher $2.00 per hour rate. Further, the letter included by plaintiff in support of her motion to dismiss from Ray Newman (“Newman”), the Director of the Whitaker School, also indicates that the pay rate was not, in fact, $2.00. The letter'was dated 4 September 2003, more than two years after plaintiff began being paid for on-call time. Newman implied that the School Management team, after learning of the overpayment to plaintiff, had determined that in the future all clinical on-call staff at Whitaker should be paid the same $2.00 rate as the Umstead staff. Newman also acknowledged that he had also been overpaid for his on-call hours. Newman’s letter indicates an acknowledgment by the Whitaker School that the initial pay rate established for on-call employees was not $2.00 an hour. Plaintiff fails to assert any factual basis for her claim that $0.94 was not the correct rate of pay for on-call Whitaker employees.

As the evidence in support of defendant’s motion for summary judgment is competent, and as no material issue of fact exists as to the correct rate of on-call pay for plaintiff’s position at the Whitaker school, the trial court’s grant of summary judgment should be affirmed. See Brown, 171 N.C. App. at 275 , 614 S.E.2d at 604-05 .