DR. YAN-MIN WANG, Petitioner v. UNC-CH SCHOOL OF MEDICINE and DR. WILLIAM SNIDER, Respondents
Case Details
- Citation
- 216 N.C. App. 185
- Judge(s)
- Judge STEELMAN concurs.; Judge Elmore concurs in part, concurs in the result in part, and dissents in part by separate opinion.
- 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
The court of appeals affirmed in part and reversed/remanded in part the trial court's decision. The trial court properly determined that EPA non-faculty employees are protected by the Whistleblower Act, but erred by not remanding the retaliation issue to the Board of Governors for findings of fact. The court also affirmed that the trial court properly rejected discrimination claims, finding no error in the Board of Governors' decision that petitioner failed to prove gender, age, and national origin discrimination.
Excerpt
DR. YAN-MIN WANG, Petitioner v. UNC-CH SCHOOL OF MEDICINE and DR. WILLIAM SNIDER, Respondents No. COA10-1021 (Filed 4 October 2011) 1. Public Officers and Employees — Whistleblower Act — EPA non-faculty employee A de novo review revealed that the trial court did not err when it concluded that the Whistleblower Act applied to petitioner, an EPA non-faculty employee. 2. Public Officers and Employees — Whistleblower Act — sufficiency of findings of fact Although the trial court properly determined that petitioner was entitled to the protections of the Whistleblower Act, it erred by proceeding to determine that petitioner had been subjected to impermissible employment-related retaliation instead of remanding this issue to the Board of Governors (BOG) for appropriate findings of fact. The case was remanded to the superior court for further remand to the BOG. 3. Public Officers and Employees — doctor—failure to show gender, age, and national origin discrimination The trial court erred by reversing the Board of Governors’ (BOG) finding that a doctor had not discriminated against petitioner on the basis of her gender, age, and national origin. However, a remand was not necessary because there was competent, material, and substantial evidence in the record to support the BOG’s decision. 4. Constitutional Law — due process — equal protection The trial court erred by concluding that petitioner established the existence of valid due process or equal protection claims. Judge ELMORE concurring in part, concurring in result in part, and dissenting in part in separate opinion. Appeal by respondents from order entered 14 May 2010 by Judge Abraham Penn Jones in Orange County Superior Court. Heard in the Court of Appeals 9 February 2011. Alan McSurely for petitioner. Attorney General Roy Cooper, by Special Deputy Attorney General Gary R. Govertfor respondents. ERVIN, Judge. Respondents UNC-Chapel Hill School of Medicine and Dr. William Snider appeal an order reversing a decision of the Board of Governors of the University of North Carolina to the effect that Petitioner Dr. Yan-Min Wang had not been treated in an impermissible and unlawful manner in connection with her employment and ordering UNC-Chapel Hill to reinstate Petitioner to a position she previously held with the university, to pay Petitioner’s attorney’s fees, and to revise its grievance procedures. On appeal, Respondents argue that the trial court misapplied the whole record test in evaluating the BOG’s decision, erred reviewing the constitutional and other legal issues raised by Petitioner, and erred by reversing the BOG’s decision. After careful consideration of Respondents’ challenges to the trial court’s order in light of the record and the applicable law, we affirm the trial court’s order in part and reverse and remand the trial court’s order in part. I. Factual Background A. Substantive Facts On 1 August 2004, Dr. William Snider, the director of the Neuroscience Center at the UNC-Chapel Hill School of Medicine, appointed Petitioner to a part-time position as a research scientist. Dr. Snider leads a team that conducts experiments on the nerve processes of genetically modified mice. The funding necessary to support this work comes from grants provided by the National Institutes of Health and private foundations. Petitioner was initially appointed for a one year term, with her employment contingent upon the continued availability of the necessary funding and subject to the need for compliance with the University’s Employment Policies for EPA Non-Faculty Employees. In an e-mail sent prior to Petitioner’s appointment, Dr. Snider stated that, “if things go well” and the needed funding became available, Petitioner might obtain a full-time appointment as a non-tenure track research assistant professor in the future. On 27 April 2005, Dr. Snider submitted an application for a “reentry” grant from the NIH to fund Petitioner’s position as a full-time research assistant professor. On 1 August 2005, while the grant application was still pending, Petitioner was appointed to a second one-year term as a part-time research scientist. After her reappointment, Petitioner worked for Dr. Snider on a separate funding proposal involving the provision of support for Dr. Snider’s work using a line of experimental mice. As part of that process, Petitioner conducted preliminary genotyping tests on the mice used in the lab’s experiments for the purpose of confirming that the mice-in question were isletl-Cre positive as had been reported in the funding proposal. As a result of the tests that she performed, Petitioner concluded that the mice were not all isletl-Cre positive, a finding that she reported to Dr. Snider. Although the evidence concerning the extent to which there actually were any genotyping problems in the laboratory and what, if any, steps needed to be taken to identify and solve any genotyping problems was conflicting, the record indicates that, in early December 2005, Petitioner and Dr. Snider exchanged a series of e-mails in which they disputed the appropriateness of the tone that each had used in commrmicating with other during various conversations concerning the genotyping issue and the specifics of what each had said to the other during these conversations. On 12 December 2005, Dr. Snider learned that the NIH grant had been approved. In January 2006, Dr. Snider sent e-mails to Petitioner stressing the importance that the level of collegiality that she displayed while interacting with others would play in his decision concerning whether to reappoint Petitioner to another term of employment. On 31 January 2006, Dr. Snider informed Petitioner that he had decided not to recommend her for a research faculty appointment due to concerns about her tendency to make “intemperate comments” and engage in “harsh interactions.” However, Dr. Snider told Petitioner that, if she could “interact productively around the science,” he would set up a “mentoring committee” that would monitor Petitioner’s progress and advise him “if and when it is appropriate to make the research faculty appointment.” In February 2006, Petitioner met with Denise Vandervort, a human relations facilitator, for the purpose of expressing her concerns about Dr. Snider’s decision to refrain from recommending her for appointment to a full-time position. After discussing the matter with Petitioner and Dr. Snider, Ms. Vandervort and Dr. Snider “agreed that any further interactions between [Dr. Snider and Petitioner] should take place in the presence of a third party” and created a mentoring committee for the purpose of assisting in the resolution of the various issues that surrounded Petitioner’s employment. On 24 March 2006, the mentoring committee presented Petitioner with a “memorandum of understanding” detailing the terms under which she would be allowed to continue to work at the Center. However, Petitioner did not sign the MOU because she did not agree with its terms. On 31 March 2006, Petitioner met with Karen Silverburg, the Associate Dean of Human Resources, for the primary purpose of discussing her contention that Dr. Snider had “promised” to promote her to a full-time position. Although Plaintiff asserts in her brief before this Court that she “mentioned” problems with the mouse colony during this meeting, the record contains no indication that issues concerning laboratory procedures were addressed at that time. In late March and early April, 2006, Petitioner wrote a letter (referred to as the “Dear Dr.” letter) in which she complained about Dr. Snider’s “broken promises” to hire her as a full-time researcher. In addition, the “Dear Dr.” letter included a paragraph discussing Petitioner’s concerns about mouse genotyping in Dr. Snider’s lab. Petitioner e-mailed or gave this letter to Dr. James Anderson and Dr. Colin Hall, the chairs of the two departments in which Dr. Snider had an appointment; Associate Dean Karen Silverberg; Dr. Albert Collier, the University’s Scientific Integrity Officer; Wayne Blair and Dr. Laurie Mesibov, the University’s ombudsmen; and Dr. Anthony-Sam Lamantia, a professor in the Neurosciences Center and one of Dr. Snyder’s colleagues. According to applicable University policies, Drs. Anderson, Hall, Collier and Mesibov and Mr. Blair were faculty members or administrators to whom a complaint could appropriately be directed. However, Petitioner should not, under established University policy, have sent the “Dear Dr.” letter to Dr. Lamantia. After learning that Petitioner had sent a copy of the “Dear Dr.” letter to Dr. Lamantia, Dr. Snider decided that he could not work with Petitioner any longer. As a result, on 13 April 2006, Dr. Snider rejected the funding from the NIH grant which would have been used to employ Petitioner in a full-time position, instructed Petitioner to work at an off-campus site for the remainder of her contract, and notified Petitioner that she would not be reappointed. B. Procedural History On 23 April 2006, Petitioner filed a grievance with the EPA Non-Faculty Grievance Committee in which she alleged that Dr. Snider had failed to renew her appointment in retaliation for her decision to report his “broken promises” to promote her to a full-time position and the problems with mouse genotyping in his lab. On 1 June 2006, the Grievance Committee reported to Chancellor James Moeser that it had found “no basis to determine that Dr. Snider has engaged in unfair or retaliatory treatment toward the grievant or to other employees.” Petitioner appealed the Grievance Committee’s decision to the Chancellor, who rejected her appeal on 22 August 2006. At that point, Petitioner appealed to the Board of Trustees. On 20 December 2006, the BOT’s Grievance Panel remanded Petitioner’s grievance to the Grievance Committee in order to permit that body to make detailed factual findings concerning Petitioner’s grievance on the basis of a de novo review of the record and recommended that Petitioner be permitted to submit a new grievance. On 25 February 2007, Petitioner submitted a new statement of her grievances in which she asserted four claims: 1.) On April 13, 2006, Dr. Snider gave me a signed letter informing me that I was to [work off campus for the rest of my appointment.] This action was in retaliation for reports I had made about him to appropriate University administrative officials starting in late March, 2006 .. . concerning] matters governed by . . . University policy and [the Whistleblower Act.] 2.) On April 13, 2006 in the same letter Dr. Snider informed me that my contract would not be renewed and that my reentry grant would be returned to NIH. This action was in retaliation for reports I had made about him to appropriate University administrative officials starting in late March, 2006... concerning] matters governed by . . . University policy and [the Whistleblower Act.] 3.) During the entire period of my employment in his lab, Dr. Snider discriminated against me on the basis of my age (48), sex (female), and national origin (Chinese). After identifying the issues that it needed to address in order to resolve Petitioner’s grievance, the Grievance Committee reviewed documentary evidence, interviewed witnesses and conducted a hearing at which Petitioner and Dr. Snider presented their respective contentions. On 21 May 2007, the Grievance Committee issued a report concluding that it could not “find in favor of any of Dr. Wang’s claims.” On 4 June 2007, Petitioner appealed the Grievance Committee’s decision to the Chancellor. On 10 October 2007, Chancellor Moeser rejected Petitioner’s appeal. Petitioner appealed the Chancellor’s determination to the BOT, which rejected Petitioner’s appeal by means of a letter dated 26 February 2008. Petitioner appealed the BOT’s decision to the BOG on 11 July 2008. On 8 January 2009, the BOG’s Committee on Personnel and Tenure submitted a report addressing Petitioner’s allegations. The report was adopted by the BOG as its decision on the following day. In its decision, the BOG considered Petitioner’s arguments on a de novo basis. In response to Petitioner’s contention that she had been subjected to impermissible discrimination stemming from her age, sex, and national origin, the BOG concluded that, “based upon all of the evidence in the record and the legal precedents,” Petitioner had “failed to carry her burden of demonstrating that she was discriminated against.” Moreover, the BOG concluded that, given her status as an EPA Non-Faculty employee, Petitioner was not protected by the Whistleblower Act and that Petitioner was not entitled to relief on First Amendment grounds. In addition, the BOG stated that: Although we conclude that Dr. Wang does not have an appeal to this Board for retaliation under the whistleblower statute or the First Amendment, we note that the Record on Appeal does not show retaliation by Dr. Snider under either basis. It shows two people who simply could not get along, and a supervisor who finally reached the breaking point and ended the relationship. Finally, the BOG concluded that: in this appeal, Dr. Wang did not meet her burden of proving discrimination or retaliation. She did not show that discrimination or retaliation were the reasons she was not reappointed, the grant application was withdrawn, and/or she was barred from the lab. .. . Therefore, the Committee recommends that the Chancellor’s decision not to reappoint should be affirmed. On 9 February 2009, Petitioner filed a petition seeking judicial review of the BOG’s decision in the Orange County Superior Court. In her petition, Petitioner asserted that the BOG had erred in a number of respects, including allegations that: 1. The BOG erred by ruling that, as an EPA Non-Faculty employee, Petitioner was not protected by the Whistleblower Act. 2. The BOG erred by rejecting Petitioner’s claim to the protection of the First Amendment and analogous provisions of the North Carolina Constitution. 3. The BOG erred in its reliance on and interpretation of case law and its analysis of salaries paid to other employees in connection with its consideration of Petitioner’s discrimination claims[.] 4. The BOG erred by denying Petitioner’s request for copies of CD recordings of the witness interviews conducted in connection with the Grievance Committee’s investigation. 5. The BOG erred in its analysis of Petitioner’s retaliation and discrimination claims by failing to subject the record evidence to “a pretext or mixed motive analysis.” 6. The applicable grievance procedures, on their face and as applied to Petitioner, “violated Petitioner’s Constitutional rights under Article I of the North Carolina Constitution, particularly Sections 18 and 19, which provide for timely hearings and guaranteeing that the state will provide equal protection and the law of the land to all citizens, which includes the right to a fair, impartial hearing.” In addition, Petitioner asserted that the BOG’s decision was arbitrary and capricious and rested upon a misapplication of the applicable law. Petitioner’s petition came on for hearing before the trial court at the 25 January 2010 civil session of Orange County Superior Court. On 14 May 2010, the trial court entered an order reversing the BOG and ruling that: 1. Petitioner, an EPA Non-Faculty employee, was protected by the Whistleblower Act. 2. Dr. Wang’s distribution of the “Dear Dr.” letter was protected activity, and was “a substantial or motivating factor” in Dr. Snider’s decision not to renew her contract. 3. The BOG “arbitrarily and capriciously mis-stated and misapplied the appropriate law” to the evidence concerning Petitioner’s claims under the Whistleblower Act by failing to “subject the evidence to the pretext and mixed motive analyses.” 4. The BOG violated Petitioner’s rights under the North Carolina Constitution by failing to provide her with transcripts of its interviews with witnesses. 5. The applicable grievance procedures, which afford more procedural rights to career State employees who challenge the existence of just cause for an adverse employment action than to EPA Non-Faculty employees who file a grievance alleging discrimination or retaliation, violated Petitioner’s rights to due process and equal protection. Based upon these determinations, the trial court ordered the UNC School of Medicine to “reinstate, Petitioner in a comparable position with retroactive pay and benefits that she would now be entitled to as if she had been employed since the University banned her from her workplace!,] • • • reimburse her reasonable attorney’s fees and costs[,] . . . bring the University’s unconstitutional Grievance Procedure into compliance consistent with this Decision and Order, and . . . make available to all parties ... all testimonial evidence adduced in any grievance!.]” Respondents noted an appeal to this Court from the trial court’s order. II. Legal Analysis A. Standard of Review According to N.C. Gen. Stat. § 150B-43, “[a]ny person who is aggrieved by the final decision in a contested case, and who has exhausted all administrative remedies made available to him by statute or agency rule, is entitled to judicial review of the decision.” N.C. Gen. Stat. § 150B-51(b) authorizes a trial court to reverse or modify an agency’s decision if the petitioner’s substantial rights have been prejudiced because the agency’s findings, inferences, conclusions, or decisions are: (1) In violation of constitutional provisions; (2) In excess of the statutory authority or jurisdiction of the agency; (3) Made upon unlawful procedure; (4) Affected by other error of law; (5) Unsupported by substantial evidence admissible under [N.C. Gen. Stat. §§] 150B-29(a), 150B-30, or 150B-31 in view of the entire record as submitted; or (6) Arbitrary, capricious, or an abuse of discretion. “On judicial review of an administrative agency’s final decision, the substantive nature of each assignment of error dictates the standard of review.” N.C. Dep’t of Env’t & Natural Res. v. Carroll, 358 N.C. 649, 658, 599 S.E.2d 888, 894 (2004). The first four grounds are “law-based” inquiries warranting de novo review. The latter two grounds are “fact-based” inquiries warranting review under the whole-record test. Under de novo review, a court “considers the matter anew[] and freely substitutes its own judgment for the agency’s.” Under the whole-record test, a court “examines all the record evidence ... to determine whether there is substantial evidence to justify the agency’s decision.” Trayford v. N.C. Psychology Bd., 174 N.C. App. 118, 121, 619 S.E.2d 862, 863-64 (2005) (quoting Carroll, 358 N.C. at 659-60, 599 S.E.2d at 894-95), aff’d, 360 N.C. 396, 627 S.E.2d 462 (2006). “As to appellate review of a superior court order regarding an agency decision, ‘the appellate court examines the trial court’s order for error of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.’ ” ACT-UP Triangle v. Commission for Health Servs., 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (quoting Amanini v. N.C. Dep’t of Human Resources, 114 N.C. App. 668, 675, 443 S.E.2d 114, 118-19 (1994)). In reviewing “an agency decision, the trial court should state the standard of review it applied to resolve each issue.” Zimmerman v. Appalachian State Univ., 149 N.C. App. 121, 130, 560 S.E.2d 374, 380 (2002) (citing In re Appeal of Willis, 129 N.C. App. 499, 502, 500 S.E.2d 723, 726 (1998)). B. Whistleblower Act 1. Applicability N.C. Gen. Stat. Chapter 126, Article 14, §§ 126-84-88, which is commonly known as the “Whistleblower Act,” protects State employees who report serious misconduct to their superiors or other appropriate authorities. The determination of whether EPA Non-Faculty employees such as Petitioner are protected by the Whistleblower Act requires inte
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