GLORIA ANN EVANS, Plaintiff v. JUDITH R. COWAN, Individually and in her official capacity as Director of Student Health Services, UNC-CH; BRUCE VUKOSON, Individually and in his official capacity as Director of the AfterHours Program at Student Health Services, UNC-CH; and JANE M. HOGAN, Individually and in her official capacity as Associate Director of Student Health Services, UNC-CH; Defendants
Case Details
- Citation
- 132 N.C. App. 1
- Judge(s)
- Judges WYNN and McGEE concur.
- Procedural Posture — the stage the case had reached
- appeal
- State
- North Carolina
- Circuit
- 4th Circuit
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
Affirmed summary judgment for defendants on all claims. Plaintiff, a at-will employee at UNC-Chapel Hill Student Health Services, failed to establish a property interest in continued employment necessary for due process protection, and her free speech claim failed because her statements concerned internal policies rather than matters of public concern.
Excerpt
GLORIA ANN EVANS, Plaintiff v. JUDITH R. COWAN, Individually and in her official capacity as Director of Student Health Services, UNC-CH; BRUCE VUKOSON, Individually and in his official capacity as Director of the AfterHours Program at Student Health Services, UNC-CH; and JANE M. HOGAN, Individually and in her official capacity as Associate Director of Student Health Services, UNC-CH; Defendants No. COA97-781 (Filed 5 January 1999) 1. Constitutional Law— State — Law of the Land Clause— employment interest — employment at will The trial court properly granted summary judgment for defendant on a claim under Art. I, § 19 of the North Carolina Constitution (the Law of the Land Clause) arising from the termination of plaintiff’s employment. Plaintiff must possess a property interest in the employment before the Law of the Land analysis may be undertaken and plaintiffs assertions that she fell outside the category of an at-will employee are unfounded. 2. Constitutional Law— State — freedom of speech — public concern — reason for discharge The trial court did not err by granting summary judgment for defendant on plaintiffs free speech claim under the North Carolina Constitution arising from the termination of her employment where, assuming that the Whistleblower Act did not afford an adequate state remedy, plaintiffs statements related to internal policies and office administration and there was no forecast of evidence showing that her statements were either the motivating or a substantial factor underlying her dismissal. Appeal by plaintiff from order filed 16 April 1997 by Judge Robert H. Hobgood in Orange County Superior Court. Heard in the Court of Appeals 18 February 1998. McSurely Dorosin & Osment, by Alan McSurely, Mark Dorosin and Ashley Osment, for plaintiff-appellant. Attorney General Michael F. Easley, by Thomas J. Ziko and Celia Grasty Jones, for defendants-appellees. JOHN, Judge. Plaintiff appeals the trial court’s grant of summary judgment in favor of defendants. We affirm the trial court. Pertinent factual and procedural information includes the following: Defendant Jane Hogan (Dr. Hogan) was awarded a Ph.D. degree in health care administration in 1991 by the University of Pennsylvania. In 1990, she served as a volunteer consultant at the University of North Carolina at Chapel Hill (UNC-CH) Student Health Services (SHS). In that capacity, Dr. Hogan contacted plaintiff and suggested employment at SHS to plaintiff. The latter had under consideration a tenure track faculty position at the University of South Carolina School of Nursing, but instead agreed 9 April 1990 to become Associate Director of the AfterHours Program (AfterHours) at SHS. AfterHours provided health services to UNC-CH students during evenings, weekends and holidays. Plaintiff joined a task force comprised of defendant Dr. Bruce Vokoson (Dr. Vokoson), Director of AfterHours; Dr. Hogan; defendant Dr. Judith Cowan (Dr. Cowan), Director of SHS; and Jaclyn Jones (Jones), Acting Director of Nursing. The task force was seeking methods of improving the efficiency of SHS. In addition, plaintiffs duties included clinical responsibilities and the task of recruiting and supervising physician extenders, i.e., physician assistants attached to a physician’s medical license, employed in AfterHours. The AfterHours task force met regularly for several months. In December 1990, plaintiff suggested that SHS change its practice of paying “moonlighting” physicians to provide AfterHours medical care. In plaintiff’s opinion, that service could be more efficiently and economically furnished by full-time nurse practitioners. According to plaintiff, this suggestion made Dr. Vukoson “visibly angry.” In task force meetings, plaintiff also sought implementation of a comprehensive alcohol policy for SHS, noting “most of our patients’ problems [are] alcohol-related.” At one meeting, plaintiff also expressed concern that Dr. Hogan had acted as the second R.N. covering a SHS night shift. Plaintiff noted Dr. Hogan was a non-employee acting in a medical capacity at a state institution. In April 1991, Dr. Cowan informed plaintiff that her job responsibilities would be strictly clinical as of 1 July 1991. Shortly thereafter, plaintiff developed pleural pericarditis, an inflammation of the lung tissue and heart covering. Plaintiff informed Jones, her supervisor, that she expected to return to work the week of 5 May 1991. However, because her sick leave was exhausted, plaintiff actually resumed her duties 29 April 1991. On 30 April 1991, Dr. Vukoson telephoned plaintiff’s cardiologist to ascertain if plaintiff was working contrary to her physician’s instructions. Plaintiff subsequently received a letter dated 6 May 1991, signed by Jones and Drs. Vukoson and Cowan, described therein as a “Final Written Warning for personal conduct.” Noting plaintiff’s earlier than anticipated return to work, the correspondence asserted plaintiff’s “inconsistent communications” had resulted in 1) the waste of administrative time expended in procuring coverage for her shifts, 2) inconvenience to staff who had agreed to provide coverage, and 3) dimin-ishment in supervisory and employee relations as a result of the confusion. In addition, plaintiff was relieved of responsibility for the AfterHours schedule. According to plaintiff, the warning communicated by the letter was rescinded 30 August 1991. In May 1991, plaintiff learned at a nursing staff meeting that SHS planned to use “Fellows,” physicians who were current recipients of a fellowship in a graduate medical education program, as back-up supervision for nurse practitioners in AfterHours. To be approved to practice in North Carolina, nurse practitioners must work continuously under the supervision of a primary supervising physician (PSP). Believing this new policy would directly conflict with 21 N.C.A.C. 32M.0009(5)(a), plaintiff approached Jones and Dr. Cowan with her concerns. Dr. Cowan contacted the Board of Medical Examiners (the Board) to request clarification of the regulation and obtain advice regarding the proposed practice. Dr. Cowan was informed the physicians in question could properly serve as back-up supervisors. This response was consistent with information Dr. Hogan had sought and received from the Board. Plaintiff’s re-certification with the Board as a nurse practitioner came due in June 1991. Dr. Vukoson, as plaintiffs PSP, was required to sign her application for reapproval to practice, and despite some reluctance, he did so. However, by copy of a letter to the Board dated 18 October 1991, Dr. Vukoson advised plaintiff he intended to withdraw as her PSP effective 1 January 1992. Dr. Vukoson indicated this decision was based on his increasing lack of trust in plaintiff and what he perceived as her lack of respect for his medical license. In her deposition, Dr. Cowan related that Dr. Vukoson had communicated to her two instances of plaintiffs failure to follow established protocol in treating students. The first concerned a student with a history of suicide, and the second involved a prescription to a student of a drug not in the treatment protocol and allowing that student to leave SHS while “complaining of what could have been a serious reaction with the [drug].” Dr. Cowan also indicated she was aware of a “profound communication difficulty, such a profound difference in perceptions” between plaintiff and Dr. Vukoson. On 14 November 1991, the UNC-CH Medical Staff (the Staff) passed a resolution (the resolution) under which only physicians serving as full-time employees of the Staff and working in the same section as a physician extender were permitted to serve as the latter’s PSP. This rule in effect prevented any physician other than Dr. Vukoson from acting as plaintiff’s PSP. As a result of the resolution, plaintiff was unable to maintain the necessary medical credentials for her position and was notified she would be discharged as of 6 May 1992. Plaintiff received a pre-termination hearing 24 April 1992 and appealed through the highest available grievance procedure levels. Ultimately, UNC-CH Chancellor Paul Hardin upheld plaintiffs discharge for failure to maintain credentials. On 16 November 1993, plaintiff filed the instant action in Orange County Superior Court, alleging slander, violation of her federal constitutional rights and violation of her rights under Article I, §§ 1, 12, 14 and 19 of the North Carolina Constitution. Following removal of the case , by defendants to the United States District Court for the Middle District of North Carolina, defendants moved for summary judgment. In an order filed 6 January 1995, the federal court granted summary judgment on the federal constitutional and slander claims and remanded the state constitutional claims brought against defendants in their official capacities to Orange County Superior Court. On 14 February 1995, defendants sought summary judgment from the trial court on plaintiffs state constitutional claims, arguing each was barred by res judicata as being “identical in all respects to the federal constitutional claims already adjudicated.” Defendants’ motion was allowed, and plaintiff filed timely notice of appeal. On appeal, this Court reversed the trial court’s grant of summary judgment and remanded. See Evans v. Cowan, 122 N.C. App. 181, 468 S.E.2d 575 (1996) (“an independent determination of plaintiff’s constitutional rights under the state constitution is required”). Upon review by our Supreme Court, the ruling of this Court was affirmed per curiam. Evans v. Cowan, 345 N.C. 177, 477 S.E.2d 926 (1996). Following remand to Orange County Superior Court, defendants again moved for summary judgment. The motion was granted in an order filed 16 April 1997. Plaintiff appeals. Summary judgment is properly entered when the pleadings, depositions, answers to interrogatories, admissions and affidavits show no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. N.C.R. Civ. P. 56; Davis v. Town of Southern Pines, 116 N.C. App. 663, 665, 449 S.E.2d 240, 242 (1994), disc. review denied, 339 N.C. 737, 454 S.E.2d 648 (1995). The burden is on the movant to show: (1) an essential element of plaintiff’s claim is nonexistent; (2)' plaintiff cannot produce evidence to support an essential element of its claim; or (3) plaintiff cannot surmount an affirmative defense raised in bar of its claim. Lyles v. City of Charlotte, 120 N.C. App. 96, 99, 461 S.E.2d 347, 350 (1995), rev'd on other grounds, 344 N.C. 676, 477 S.E.2d 150 (1996). In assessing whether this burden is met, all inferences are to be viewed in the light most favorable to the non-movant. Crow v. Citicorp Acceptance Co., 319 N.C. 274, 281, 354 S.E.2d 459, 464 (1987). Bearing these general principles in mind, we first consider plaintiff’s assertion that her termination violated Article I, § 19 of the North Carolina Constitution (the Law of the Land Clause). The Law of the Land Clause provides that “[n]o person shall be ... in any manner deprived of his life, liberty, or property, but by the law of the land,” N.C. Const. art. I, § 19, and has generally been held to be equivalent to the Due Process Clause of the United States Constitution. Lorbacher v. Housing Authority of the City of Raleigh, 127 N.C. App. 663, 675, 493 S.E.2d 74, 81 (1997). Given the similarities, a decision of the United States Supreme Court interpreting the Due Process Clause is persuasive, though not controlling, authority for interpretation of the Law of the Land Clause. Id. Defendants argue plaintiff was an employee at will with no vested property right in continued employment, and thus failed to show the threshold element of a due process analysis. Plaintiff, apparently recognizing that the weight of authority supports defendants’ position, see, e.g., Lorbacher, 127 N.C. App. at 675, 493 S.E.2d at 81 (“plaintiffs complaint fails to state a valid claim under the Law of the Land Clause . . . [because] [h]e simply lacks the requisite property interest in continued employment to trigger the protections afforded by our State Constitution”); Woods v. City of Wilmington, 125 N.C. App. 226, 234, 480 S.E.2d 429, 434 (1997) (trial court’s grant of summary judgment to defendant on Article I, § 19 claim affirmed where “plaintiff did not possess a cognizable property interest in continued employment protected by the North Carolina Constitution”); and Ware v. Fort, 124 N.C. App. 613, 617, 478 S.E.2d 218, 221 (1996) (plaintiff’s argument failed “because plaintiff simply had no property right in the position of which he could be constitutionally deprived — under either the North Carolina or federal constitutions”), nonetheless urges us to take an independent approach to the unique fact situation here, informed by the particularities of North Carolina constitutional jurisprudence, reflecting the unique language, history and policy of the North Carolina Constitution. However, plaintiff is unable to point us to a case supporting her position, and we agree with defendants that plaintiff must possess a property interest in the employment at issue before the Law of the Land Clause analysis may be undertaken. We consider then whether the requisite property interest is present in the case sub judice. This jurisdiction has long adhered to the employment-at-will doctrine, i.e. “[w]here a contract of employment does not fix a definite term, it is terminable at the will of either party, with or without cause.” Burgess v. Your House of Raleigh, 326 N.C. 205, 209, 388 S.E.2d 134, 137 (1990) (citations omitted). An employee at will has no property interest by virtue of her employment, though an enforceable interest in continued employment may “be created by [statute], or by an implied contract.” Howell v. Town of Carolina Beach, 106 N.C. App. 410, 417, 417 S.E.2d 277, 281 (1992) (citations omitted). Plaintiff, having accumulated but twenty-five months of service, makes no claim of statutory “permanent employee status” under N.C.G.S. § 126-5(c)(l) prior to 1 July 1993. See also N.C.G.S. § 126-15.1 (1995) (“probationary employee” is one exempt from state Personnel Act because not “continuously employed for the period of time required by G.S. 126-5(c)). However, plaintiff asserts an implied employment contract in that [she] was heavily recruited for the position at SHS and lured away from a better paying tenure track position at the University of South Carolina; was promised that she would be able to continue to conduct her research; given a joint appointment for a time certain with the School of Nursing; and assured that while she would be accepting a position as a PE II, her position would be quickly upgraded to a PE III. This Court has previously held that an implied employment contract may arise out of representations and additional consideration proffered at the time of hiring. See Sides v. Duke University, 74 N.C. App. 331, 345, 328 S.E.2d 818, 828, disc. review denied, 314 N.C. 331, 333 S.E.2d 490 (1985) (allegations (1) that plaintiff was assured by employer “she could only be discharged for incompetence, [(2) and that] these assurances induced her to move here from Michigan in order to accept the job offer, and [(3)] were part of her employment contract,” sufficient “to remove plaintiffs employment contract from the terminable-at-will rule” for purposes of surviving motion to dismiss breach of contract claim pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6) (1990) for failure to state a claim). However, our Supreme Court has recently cast doubt upon the Sides holding. See Kurtzman v. Applied Analytical Industries, Inc., 347 N.C. 329, 334, 493 S.E.2d 420, 424 (1997) (change of residence exception to employment-at-will doctrine disapproved, and “employer’s assurances of continued employment [held not to] remove an employment relationship from the at-will presumption”). In addition, Sides is readily distinguishable from the instant case. In Sides, the plaintiff was assured individuals in her position could be discharged only for incompetence. Sides, 74 N.C. App. at 345, 328 S.E.2d at 828. Nothing in the record indicates plaintiff herein received any analogous promise. Moreover, the Sides plaintiff moved from Michigan to North Carolina to accept employment. On the other hand, plaintiff acknowledged “there were some good reasons why it might be convenient” to remain in Chapel Hill as opposed to relocating to South Carolina, because her data set was located in Chapel Hill. We therefore conclude that plaintiff’s assertions she fell outside the category of an at-will employee are unfounded. See Salt v. Applied Analytical, Inc., 104 N.C. App. 652, 659, 412 S.E.2d 97, 101 (1991) (no additional consideration where plaintiff failed to show assurances containing “specific terms or conditions, as in Sides”), cert. denied, 331 N.C. 119, 415 S.E.2d 200 (1992); see also McMurry v. Cochrane Furniture Co., 109 N.C. App. 52, 57-58, 425 S.E.2d 735, 739 (1993) (“[plaintiffs failure to accept a tentative offer of employment elsewhere in return for defendant’s gratuitous offer of continued employment for an indefinite period was ... not sufficient additional consideration” to create implied contract). Accordingly, because plaintiff lacked a property interest in continued employment, the trial court’s grant of defendant’s summary judgment motion on plaintiff’s Law of the Land Clause claim is affirmed. Turning to plaintiff’s freedom of speech claim, we note that the North Carolina Constitution proclaims that “[fjreedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained . . . .” N.C. Const, art. I, § 14. Our Supreme Court has deemed the foregoing section “a direct personal gúarantee of each citizen’s right of freedom of speech.” Corum v. University of North Carolina, 330 N.C. 761, 781, 413 S.E.2d 276, 289, cert. denied, 506 U.S. 985, 121 L. Ed. 2d 431 (1992). Nonetheless, a citizen asserting abridgement of her state constitutional rights may assert a direct claim thereunder only absent an adequate state remedy. Id. at 782, 413 S.E.2d at 289. The judiciary “must bow to established claims and remedies where these provide an alternative to the extraordinary exercise of its inherent constitutional power.” Id. at 784, 413 S.E.2d at 291. Arguing that plaintiff possessed an adequate state remedy precluding her direct constitutional claim, defendants point to what is referred to as our “Whistleblower Act,” N.C.G.S. §§ 126-84 through 126-88 (1995). In her complaint, plaintiff alleged she was discharged in retaliation for her “good faith and truthful communications about important health and administrative issues at the Student Health Services,” speech protected by the North Carolina Constitution. Plaintiff maintains the Whistleblower Act did not afford an adequate state remedy for this claim. Assuming arguendo plaintiff is correct, we nonetheless hold summary judgment was proper on her freedom of speech claim. For such a claim to be properly advanced, the speech at issue first must involve a matter of public concern. Connick v. Myers, 461 U.S. 138, 146, 75 L. Ed. 2d 708, 719 (1983). Second, “such protected speech or activity [must have been] the ‘motivating’ or ‘but for’ cause for [the plaintiff’s] discharge or demotion.” Warren v. New Hanover County Bd. of Education, 104 N.C. App. 522, 525-26, 410 S.E.2d 232, 234 (quoting Jurgensen v. Fairfax County, 745 F.2d 868, 877-78 (4th Cir. 1984)). Resolution of these issues is a matter of law for the court. Id. As to the question of public concern, the court must look to the content, form and context of the speech involved. Connick, 461 U.S. at 147-48, 75 L. Ed. 2d at 720; see also Corum, 330 N.C. at 775, 413 S.E.2d at 285. The test is whether the employee was speaking as a citizen about matters of public concern, or as an employee on matters of personal interest. Connick, 461
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