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 plaintiff's 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 plaintiff's
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, plaintiff's 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 andholidays.
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, plaintiff's 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 stateinstitution.
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)
diminishment 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 plaintiff's
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 plaintiff's failure to
follow established protocol in treating students. The first
concerned a student with a history of suicide, and the second
involved 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 plaintiff's
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 plaintiff's 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).
[1]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 (“plaintiff's 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)(1) 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 plaintiff's 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) (“[p]laintiff's
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.
[2]Turning to plaintiff's freedom of speech claim, we note
that the North Carolina Constitution proclaims that “[f]reedom 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 guarantee 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 U.S. at
147, 75 L. Ed. 2d at 720. Moreover, complaints about conditions
of employment or internal office affairs generally concern an
employee's self-interest rather than public concern, even though
a governmental office may be involved:
To presume that all matters which transpire
within a government office are public concern
would mean that virtually every remark--and
certainly every criticism directed at a
public official--would plant the seed of a
constitutional case. . . . [T]he First
Amendment does not require a public office to
be run as a roundtable for employee
complaints over internal office affairs.
Id. at 149, L. Ed. 2d at 721; see also Daniels v. Quinn, 801
F.2d 687, 690 (4th Cir. 1986) (“matters of public concern [for
First Amendment] purposes must relate to wrongdoing or a breach
of trust, not ordinary matters of internal . . . policy”)
(citation omitted); see also Jurgensen, 745 F.2d at 871 (report
dealing with police department released by employee not matter of
public concern because content of report did not involve or
allege illegal activity, corruption, abuse of power, waste or
discrimination); Leiphart v. N.C. School of the Arts, 80 N.C.
App. 339, 354, 342 S.E.2d 914, 925 (no violation of First
Amendment rights where “[p]etitioner's speech, his criticism of
[department head], was not based on public-spirited concern.
Instead, it focused on his own personal displeasure with . . .
internal policies”), cert. denied, 318 N.C. 507, 349 S.E.2d 862
(1986); and Pressman v. UNC-Charlotte, 78 N.C. App. 296, 301-02,
337 S.E.2d 644, 648 (1985) (no violation of First Amendment
rights where plaintiff's “criticism not based on public-spirited
concern but more narrowly focused on his own personal work and
personal displeasure with internal policies”).
In the case sub judice, plaintiff has asserted her
termination was occasioned in retaliation for statements uttered
regarding four main topics: (1) her proposal to employ nurse
practitioners rather than moonlighting physicians in the AfterHours program; (2) her reservations regarding the use of
Fellows as back-up supervisors; (3) her concern directed at Dr.
Hogan's volunteer status and its concomitant liability
implications for SHS; and (4) her expression of the need for
establishing a protocol for alcohol-related student health
issues. Upon careful review of the record, we conclude each of
the foregoing related to internal policies and office
administration of SHS and did not rise to the level of public
concern.
We note, for example, that no evidence in the record
indicates plaintiff ever voiced her concerns publicly outside the
employment setting, which would tend to indicate a public
concern. See Godon v. N.C. Crime Control & Public Safety, 959 F.
Supp. 284 (E.D.N.C. 1997) (plaintiff's comments to supervisors at
public academy concerning alleged race and sex discrimination in
discharge of certain cadets did not constitute protected speech
when plaintiff simply approached supervisors with verbal
complaints); cf. Lenzer v. Flaherty, 106 N.C. App. 496, 501-02,
507-09, 418 S.E.2d 276, 279-282, 284 (plaintiff's speech
protected where she reported perceived laxity of employer's
investigation into possible patient mistreatment to State Bureau
of Investigation, and where evidence indicated plaintiff's
concerns had some basis in fact and employer sought to keep allegations from being exposed), disc. review denied, 332 N.C.
345, 421 S.E.2d 348 (1992). In addition, regarding the use of
Fellows as back-up supervisors, all the evidence indicates,
plaintiff's expressed concerns notwithstanding, that the practice
was not illegal and was indeed permitted under the applicable
regulations. Thus not only was the matter merely indicative of
plaintiff's private concern, but plaintiff's concerns proved to
be unjustified.
Most significantly, however, assuming arguendo the substance
of plaintiff's comments touched upon public concern, we are
unable to conclude as a matter of law that plaintiff's statements
were the motivating, or substantial, factor behind her
termination. See Warren, 104 N.C. App. at 525-26, 410 S.E.2d at
234. Dr. Vukoson testified he removed plaintiff from his license
because she did not give his license the proper respect. Dr.
Cowan related two instances wherein plaintiff failed to follow
established protocol in treating students. Dr. Cowan also
referenced plaintiff's inability to communicate with Dr. Vukoson
and Jones, her supervisors. By contrast, while plaintiff's
complaint alleged she was discharged in retaliation for protected
speech, there was no forecast of evidence showing her statements
were either the motivating or a substantial factor underlying her
dismissal. Indeed, in her lengthy deposition, plaintiff simply reiterated her “belief” she was terminated in retaliation for
expressing her concerns. See Lenzer, 106 N.C. App. at 510, 418
S.E.2d at 284 (“the causal nexus between protected activity and
retaliatory discharge must be something more than speculation”).
Accordingly, the trial court did not err in allowing summary
judgment against plaintiff on her free speech claim.
In sum, for the reasons set forth herein, the order of the
trial court granting defendants' motion for summary judgment is
in all respects affirmed.
Affirmed.
Judges WYNN and MCGEE concur.
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