McGEE, Chief Judge.
Dr. Sivaramalingam Manickavasagar ("Plaintiff") was hired by the North Carolina Correctional Institution for Women ("NCCIW") as a Physician III-A, and was fired from that position while still on "probationary/trainee" status. Plaintiff then filed a complaint against the North Carolina Department of Public Safety, NCCIW's medical director, Dr. Armayne Dunston ("Dr. Dunston"), and NCCIW's warden, Bianca Harris ("Warden Harris") (together, "Defendants"). Plaintiff sued Dr. Dunston and Warden Harris in both their official and individual capacities. Plaintiff's complaint alleged that he was fired in retaliation for reporting (1) racial discrimination and (2) fraud, misappropriation of state resources, and gross institutional mismanagement at NCCIW. Defendants moved for summary judgment, which was granted by the trial court. We affirm.
Plaintiff was born in Sri Lanka, but is a naturalized American citizen and has been practicing medicine since 1959. Plaintiff began employment with NCCIW as a Physician III-A on 30 January 2012. Plaintiff was to be on "probationary/trainee" status for the first nine months of his employment with NCCIW.
During NCCIW's "new hire orientation," Dr. Dunston received a report from a doctor hired at the same time as Plaintiff, Dr. Stanley Wilson ("Dr. Wilson"). Dr. Wilson stated that Plaintiff often arrived late to their training. On 21 February 2012, less than a month into his employment with NCCIW, Plaintiff reported to Dr. Dunston that Dr. Wilson had recently greeted him by saying "Namasthay," [sic] which Plaintiff felt was insulting because Plaintiff was "an American and ... speak[s] only English." Plaintiff also reported he felt that Dr. Wilson was second-guessing him and telling him what to do. Subsequently, Dr. Dunston spoke with Dr. Wilson about his greeting, and Dr. Wilson never said "Namasthay" [sic] to Plaintiff again. Dr. Dunston also spoke with Plaintiff about the "very collaborative approach to medicine" at NCCIW and told Plaintiff he would need to be able to "welcome feedback" from his colleagues.
Throughout the next several months, Dr. Dunston received numerous reports from NCCIW medical personnel that Plaintiff was combative and refused to follow NCCIW protocol. When other doctors or medical staff attempted to inform Plaintiff about proper NCCIW protocol, Plaintiff's reported "response to everyone" was simply to dismiss them and state that he had been practicing medicine for over fifty years.
NCCIW's nurse supervisor, Pamela Freeman-Caviness, reported to Dr. Dunston on 25 June 2012 that Plaintiff was asleep in the
Plaintiff later "admit[ted] to" the 25 June sleeping incident in a letter to Warden Harris dated 25 September 2012 ("the 25 September letter"). However, during deposition, Plaintiff clarified his statement by saying: "I admit the allegation, but not [the] description of that as sleeping on the job." To say that he was "sleeping," Plaintiff argued, would require a "differential diagnosis" from a doctor. Plaintiff further stated that he actually could not "remember ... [the][e]vents surrounding [the 25 June sleeping] incident and what happened after that, a few days after even," because he was on numerous medications that may have affected his cognitive state and also because he was not eating at the time in order to "remain alert."
Plaintiff wrote Dr. Dunston a letter on 2 July 2012 ("the 2 July letter"), which contained a number of grievances against Dr. Dunston. The 2 July letter generally out-lined what Plaintiff' saw as mismanagement of NCCIW by Dr. Dunston. It also alleged that Dr. Dunston "engaged in discriminatory activity against" Plaintiff by not assigning him to certain duties at the prison. Dr. Dunston forwarded Plaintiff's 2 July letter up the chain of command to the Equal Employment Opportunity office of the North Carolina Department of Correction ("EEO") because it "contained allegations [that] could be perceived as [racial] discrimination" by Dr. Dunston.
Nonetheless, during the EEO's subsequent investigation into the allegations in the 2 July letter, Dr. Dunston explained that she did not assign Plaintiff to certain duties because she was concerned about what she saw as Plaintiff's clashes with staff members and refusal to follow NCCIW protocol. Moreover, Plaintiff expressly stated to EEO investigators that he had "never faced discrimination [based on] race[] [or] religion" at NCCIW. As such, the EEO report concluded that any intimation of racial "discrimination" in Plaintiff's 2 July letter was unsubstantiated. If anything, the report noted, Plaintiff "communicated [his own] biases of a racial nature and generalized stereotypes of African-Americans as he referenced Dr. Dunston and her health" during the investigation.
Dr. Dunston continued to receive reports of Plaintiff clashing with staff members and not following NCCIW protocol through July of 2012. Dr. Dunston also received a second report of Plaintiff sleeping on the job, this time from Dr. Wilson, on 18 July 2012 ("the 18 July sleeping incident"). Dr. Dunston and NCCIW's deputy warden, John Habuda, met with Plaintiff' and Dr. Wilson the following day to discuss the 18 July sleeping incident ("the 19 July conference"). Plaintiff reportedly did not deny that he was asleep, and instead stated: "[A]fter eight hours, I can do what I want[.] [If] there is no work I can sleep, snooze, I can do whatever I want until the telephone rings and I pick it up."
They also discussed a recent argument between Plaintiff and Dr. Wilson, and Plaintiff stated that Dr. Wilson generally acted with an attitude of "white supremacy." Plaintiff also said of Dr. Dunston, his direct supervisor:
After receiving a report concerning the 19 July Conference, Warden Harris ordered an internal investigation of Plaintiff due to reports that Plaintiff was still sleeping on the job and after "becoming aware of other worrisome behavior" by Plaintiff.
While the investigation of Plaintiff was pending, Plaintiff sent Dr. Dunston another
Warden Harris informed Plaintiff, in writing, that Plaintiff was being placed on "investigatory status" effective 9 August 2012. As a result, Plaintiff would receive pay while he was being investigated, but he was not to report for duty. Plaintiff subsequently delivered another letter to the EEO on 4 September 2012. This letter reportedly documented seventeen instances where Plaintiff felt inmates had received "substandard clinical care" at NCCIW.
Plaintiff was notified by Warden Harris of his pre-disciplinary conference through a letter dated 20 September 2012. The pre-disciplinary conference was held on 24 September 2012. During the conference, Plaintiff was given the opportunity to submit a written response to the allegations against him, and he responded in the 25 September letter to Warden Harris, discussed previously. Again, Plaintiff "admit[ted] to" the 25 June sleeping incident in the 25 September letter. Plaintiff also stated he "became alert" when Dr. Dunston approached him to speak about his allegedly sleeping on the job. Plaintiff did not address the 18 July sleeping incident and stated that: "No other allegations of similar incidents have been brought to my attention[.]" Plaintiff acknowledged that he had an "adversarial relationship" with Dr. Wilson and declined to comment further except to note that he felt the issue "remain[ed] largely unresolved because of the lack of any efforts to resolve it by Dr. Dunston or anyone else in the chain of command." In a subsequent affidavit filed by Plaintiff, he took issue with the incidents involving Plaintiff and other NCCIW staff members being characterized as "confrontations" and stated that he "did not engage in `confrontations'" with staff members at NCCIW. Instead, Plaintiff averred, "[a]ny disagreements that occurred between Dr. Stanley Wilson and I were initiated by [Dr Wilson]."
Warden Harris mailed Plaintiff written notice of Plaintiff's termination from NCCIW on 24 October 2012 ("the termination letter"). The termination letter briefly summarized many of the reports that Dr. Dunston received from NCCIW staff regarding Plaintiff's general conduct. The termination letter then set out several categories of "unacceptable personal conduct" as provided in the Department of Correction Personnel Manual ("DOC manual"), specifically,
The termination letter continued by stating that
Plaintiff filed a complaint against the North Carolina Department of Public Safety, Dr. Dunston, and Warden Harris, alleging that he was fired in retaliation for reporting (1) racial discrimination and (2) fraud, misappropriation of state resources, and gross institutional mismanagement at NCCIW. Plaintiff's claims were based entirely on his reporting the contents of the 2 July letter.
The North Carolina Supreme Court has stated clearly that
Forbis v. Neal, 361 N.C. 519, 523-24, 649 S.E.2d 382, 385 (2007) (citations and internal quotation marks omitted).
North Carolina's Whistleblower Act ("the Act"), codified at N.C. Gen.Stat. § 126-84 et seq. (2013), provides that
N.C.G.S. § 126-84(a). Section 126-85 states that
N.C.G.S. § 126-85. In order to succeed on a claim for retaliatory termination,
Newberne v. Dep't of Crime Control & Pub. Safety, 359 N.C. 782, 788, 618 S.E.2d 201, 206 (2005). However, complaints merely "concerning employee grievance matters" are not protected by the Act. Hodge v. N.C. Dep't of Transp., 175 N.C. App. 110, 117, 622 S.E.2d 702, 707 (2005). Moreover,
Strickland v. Doe, 156 N.C. App. 292, 294-95, 577 S.E.2d 124, 128 (2003) (citation omitted).
Plaintiff first contends that he was discharged from NCCIW "because he had [reported] that he was being discriminated against on account of his race and national origin" in violation of N.C.G.S. § 126-85. Although Plaintiff's complaint states that he was reporting racial discrimination in the 2 July letter, we find no evidence in the record to support this claim. With the exception of his complaint, Plaintiff has never stated that he was actually discriminated against because of his race, religion, or national origin, or that he was reporting as such. During the EEO's investigation into the 2 July letter, Plaintiff told EEO investigators that he had "never faced discrimination [based on] race[] [or] religion" at NCCIW. In the affidavit Plaintiff submitted to the trial court, Plaintiff never stated he felt he was discriminated against because of his race, religion, or national origin, and instead stated that he had "used the word `discrimination' because [he] was not able to determine any other explanation for the disparate treatment that [he] received." During deposition, Plaintiff repeatedly refused to state that there was any racial motivation behind this alleged "discrimination," as seen through the following exchanges:
At one point, after opposing counsel again specifically asked Plaintiff about the allegation in his complaint that he was discriminated against based on race or national origin, Plaintiff stated that he could not respond, pointed to his lawyer, and stated "[t]hat's what he wrote."
Based on these statements by Plaintiff, it is clear Plaintiff did not believe, even leading up to trial, that he was ever discriminated against because of his race or national origin at NCCIW. As such, Plaintiff's 2 July letter did not involve his reporting racial discrimination at NCCIW, and instead constituted an employee grievance matter, which was not protected by the Act. See Hodge, 175 N.C.App. at 117, 622 S.E.2d at 707. Therefore, Plaintiff's claim that he was fired from NCCIW in retaliation for reporting discrimination based on race or national origin is without merit and was properly dismissed by the trial court.
Plaintiff next argues he was fired for reporting fraud, misappropriation of state resources, and gross mismanagement of NCCIW in the 2 July letter. Again, to establish a prima facie claim for retaliatory termination, a plaintiff must establish
Newberne, 359 N.C. at 788, 618 S.E.2d at 206. Regarding this third element for establishing a prima facie claim,
Id. at 790-91, 618 S.E.2d at 207-08 (citations and internal quotations omitted). Plaintiff's complaint alleges that Defendants' stated reasons for firing him were pretextual and, thus, his claim falls within the second category of cases described above.
Id. at 790-91, 618 S.E.2d at 207-08 (citations omitted).
Even if we were to assume arguendo that Plaintiff has established a prima facie claim, his suit against Defendants was still properly disposed of through summary judgment. Defendants have articulated some legitimate, non-retaliatory reasons for terminating Plaintiff's employment with NCCIW, specifically his reported clashes with NCCIW personnel and ongoing refusal to follow NCCIW protocol. Therefore, under the McDonnell Douglas/Burdine burden-shifting proof scheme, in order to survive summary judgment, Plaintiff would have to raise a factual issue regarding whether these proffered reasons for firing Plaintiff were pretextual. "To raise a factual issue regarding pretext, the plaintiff's evidence must go beyond that which was necessary to make a prima facie showing by pointing to specific, non-speculative facts which discredit the defendant's non-retaliatory motive." Wells v. N.C. Dep't of Corr., 152 N.C. App. 307, 317, 567 S.E.2d 803, 811 (2002).
Although Plaintiff argues at length in his brief that he has established a prima facie claim against Defendants, Plaintiff has provided this Court with no express argument that the Defendants' stated reasons for firing him were pretextual, nor has he even directly attacked the validity of most of Defendants' articulated reasons for firing him. Plaintiff does not refute the documented instances of his sleeping on the job; instead, he has stated that he either did not remember whether he was asleep or he challenges the characterization of his "non-alert[ness]" as "sleeping." Plaintiff does not dispute the repeated occurrences of his clashing with NCCIW staff; he either does not remember these occurrences or challenges their being characterized as "confrontations."
Instead, Plaintiff argues on appeal that the trial court should not have even considered the numerous reports from NCCIW staff regarding Plaintiff's conduct at NCCIW — i.e., all of the legitimate articulated bases for firing Plaintiff — because those reports constituted hearsay. Plaintiff has waived this argument on appeal, as he did not raise it with the trial court. See N.C.R.App. P. 10(a)(1). In any event, Plaintiff's claim is without merit; "[s]tatements of one person to another are admissible to explain the subsequent conduct of the person to whom the statement was made." State v. Coffey, 326 N.C. 268, 282, 389 S.E.2d 48, 56 (1990) (citation and internal quotation marks omitted).
Plaintiff does provide this Court with another argument that could be interpreted as an argument that Defendants' articulated reasons for firing him were pretextual. Plaintiff points to a part of the dismissal letter that cites several of the DOC Manual's enumerated forms of "unacceptable personal conduct." Specifically, Plaintiff's dismissal letter notes that the conduct of "[k]nowingly making false or malicious statements with intent to harm or destroy the reputation, authority, or official standing of an individual or the Department" may have been relevant in NCCIW's determination to fire Plaintiff. Plaintiff argues that "a reasonable juror could infer that Warden Harris was referring to Plaintiff's reports of ... waste and mismanagement of state resources ... when she
Notwithstanding the fact that the termination letter documents a number of inflammatory statements made by Plaintiff about other NCCIW staff members,
Affirmed.
Judges HUNTER, ROBERT C. and BELL concur.
