{ "id": 5314074, "name": "JEANNE M. LENZER v. DAVID T. FLAHERTY, In his official capacity as Secretary of the Department of Human Resources, PAUL T. KAYYE, Individually and in his official capacity as Director of the Division of Mental Health, Mental Retardation and Substance Abuse Services of the Department of Human Resources, THOMAS MIRIELLO, Individually and in his official capacity as Deputy Director for Alcohol and Drug Abuse Services of the Division of Mental Health, Mental Retardation and Substance Abuse Services [of the Department of Human Resources], DON CUMMINGS, Individually and in his official capacity as Director of the Division of Personnel [Management] Services of the Department of Human Resources, MICHAEL F. BYRNE, Individually and in his official capacity as Chief of the Employee Relations Section of the Department of Human Resources, ROBERT L. BAUCOM, Individually and in his official capacity as Director of ARC-Butner, and HARRIET M. HARMAN, Individually and in her official capacity as Assistant Director of ARC-Butner", "name_abbreviation": "Lenzer v. Flaherty", "decision_date": "1992-07-07", "docket_number": "No. 9014SC230", "first_page": "496", "last_page": "516", "citations": [ { "type": "official", "cite": "106 N.C. App. 496" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "107 ALR Fed 21", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "weight": 2, "opinion_index": -1 }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "opinion_index": -1 }, { "cite": "416 S.E.2d 166", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "331 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498595 ], "year": 1992, "pin_cites": [ { "page": "353" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0348-01" ] }, { "cite": "491 U.S. 58", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6210401 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/us/491/0058-01" ] }, { "cite": "473 U.S. 159", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6197246 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/us/473/0159-01" ] }, { "cite": "136 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "parenthetical": "considering corporate stockholders and directors, with interest in activities of corporation and duty to advise or direct such activities" } ], "opinion_index": 0 }, { "cite": "262 N.C. 121", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565926 ], "year": 1964, "pin_cites": [ { "parenthetical": "considering corporate stockholders and directors, with interest in activities of corporation and duty to advise or direct such activities" } ], "opinion_index": 0, "case_paths": [ "/nc/262/0121-01" ] }, { "cite": "333 S.E.2d 490", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 331", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686660, 4695653, 4695471, 4689718, 4689592 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0331-03", "/nc/314/0331-01", "/nc/314/0331-05", "/nc/314/0331-02", "/nc/314/0331-04" ] }, { "cite": "328 S.E.2d 818", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "828-30" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 331", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524570 ], "year": 1985, "pin_cites": [ { "page": "345-48" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0331-01" ] }, { "cite": "79 A.L.R.3d 651", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "weight": 4, "year": 1976, "pin_cites": [ { "page": "662" }, { "page": "665" }, { "page": "668" } ], "opinion_index": 0 }, { "cite": "221 S.E.2d 282", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1976, "pin_cites": [ { "page": "290" }, { "page": "292" }, { "page": "294" } ], "opinion_index": 0 }, { "cite": "289 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566728 ], "weight": 3, "year": 1976, "pin_cites": [ { "page": "85" }, { "page": "88" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0071-01" ] }, { "cite": "84 S.E.2d 176", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "pin_cites": [ { "page": "181-82", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "240 N.C. 667", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609041 ], "year": 1954, "pin_cites": [ { "page": "674", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/240/0667-01" ] }, { "cite": "814 F.2d 553", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1684466 ], "year": 1987, "pin_cites": [ { "page": "556" } ], "opinion_index": 0, "case_paths": [ "/f2d/814/0553-01" ] }, { "cite": "775 F.2d 1240", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 41926 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "1252" }, { "page": "1252", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/f2d/775/1240-01" ] }, { "cite": "276 S.E.2d 325", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567370 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0437-01" ] }, { "cite": "354 S.E.2d 737", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "743", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 292", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169853 ], "year": 1987, "pin_cites": [ { "page": "301", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0292-01" ] }, { "cite": "388 S.E.2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "325 N.C. 704", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2489121, 2489031, 2489556, 2491254, 2492535 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/325/0704-05", "/nc/325/0704-02", "/nc/325/0704-04", "/nc/325/0704-03", "/nc/325/0704-01" ] }, { "cite": "382 S.E.2d 874", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "882" } ], "opinion_index": 0 }, { "cite": "95 N.C. App. 226", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520293 ], "year": 1989, "pin_cites": [ { "page": "237" } ], "opinion_index": 0, "case_paths": [ "/nc-app/95/0226-01" ] }, { "cite": "429 U.S. 274", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8150 ], "weight": 3, "year": 1977, "opinion_index": 0, "case_paths": [ "/us/429/0274-01" ] }, { "cite": "483 U.S. 635", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 28199 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "643" }, { "page": "532-33" } ], "opinion_index": 0, "case_paths": [ "/us/483/0635-01" ] }, { "cite": "895 F.2d 994", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10537329 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "998", "parenthetical": "Phillips, J., concurring" }, { "page": "1001-02", "parenthetical": "Phillips, J., concurring" } ], "opinion_index": 0, "case_paths": [ "/f2d/895/0994-01" ] }, { "cite": "457 U.S. 800", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6194865 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "818" }, { "page": "410" } ], "opinion_index": 0, "case_paths": [ "/us/457/0800-01" ] }, { "cite": "745 F.2d 868", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 593075 ], "year": 1984, "pin_cites": [ { "page": "879-80" } ], "opinion_index": 0, "case_paths": [ "/f2d/745/0868-01" ] }, { "cite": "391 U.S. 563", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767525 ], "weight": 2, "year": 1968, "pin_cites": [ { "parenthetical": "discussing the balancing of competing employee and employer interests" }, { "parenthetical": "discussing the balancing of competing employee and employer interests" } ], "opinion_index": 0, "case_paths": [ "/us/391/0563-01" ] }, { "cite": "461 U.S. 138", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11298262 ], "weight": 6, "year": 1983, "opinion_index": 0, "case_paths": [ "/us/461/0138-01" ] }, { "cite": "413 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 1992, "pin_cites": [ { "page": "283" }, { "page": "284" }, { "page": "284-85" }, { "page": "287" }, { "page": "286" }, { "page": "283" }, { "page": "293" }, { "page": "292" } ], "opinion_index": 0 }, { "cite": "330 N.C. 761", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511641 ], "weight": 9, "year": 1992, "pin_cites": [ { "page": "772" }, { "page": "772-73" }, { "page": "777" }, { "page": "773" }, { "page": "778-79" }, { "page": "777" }, { "page": "771" }, { "page": "785-86" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0761-01" ] }, { "cite": "385 S.E.2d 498", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "325 N.C. 546", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2491716, 2492262, 2491956, 2491610, 2489499 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/325/0546-05", "/nc/325/0546-02", "/nc/325/0546-04", "/nc/325/0546-01", "/nc/325/0546-03" ] }, { "cite": "382 S.E.2d 836", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "95 N.C. App. 301", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520544 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/95/0301-01" ] } ], "analysis": { "cardinality": 1568, "char_count": 47163, "ocr_confidence": 0.747, "pagerank": { "raw": 5.896243964920276e-07, "percentile": 0.9527300626407177 }, "sha256": "6537db52a81dadbac5c0a57a753c4062e941b172fe22a34de05ae970e92af7be", "simhash": "1:7e9a54be3fdf4074", "word_count": 7264 }, "last_updated": "2023-07-14T19:35:11.401464+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and ORR concur." ], "parties": [ "JEANNE M. LENZER v. DAVID T. FLAHERTY, In his official capacity as Secretary of the Department of Human Resources, PAUL T. KAYYE, Individually and in his official capacity as Director of the Division of Mental Health, Mental Retardation and Substance Abuse Services of the Department of Human Resources, THOMAS MIRIELLO, Individually and in his official capacity as Deputy Director for Alcohol and Drug Abuse Services of the Division of Mental Health, Mental Retardation and Substance Abuse Services [of the Department of Human Resources], DON CUMMINGS, Individually and in his official capacity as Director of the Division of Personnel [Management] Services of the Department of Human Resources, MICHAEL F. BYRNE, Individually and in his official capacity as Chief of the Employee Relations Section of the Department of Human Resources, ROBERT L. BAUCOM, Individually and in his official capacity as Director of ARC-Butner, and HARRIET M. HARMAN, Individually and in her official capacity as Assistant Director of ARC-Butner" ], "opinions": [ { "text": "PARKER, Judge.\nIn this action alleging unlawful separation from employment, plaintiff, a former physician\u2019s assistant (\u201cPA\u201d) at the Alcohol Rehabilitation Center in Butner, North Carolina (\u201cARC\u201d), predicates defendants\u2019 liability on violation of her free speech rights under the United States and North Carolina Constitutions, civil conspiracy, tortious interference with economic relations, wrongful discharge and harassment in violation of N.C.G.S. \u00a7 122C-66(b). N.C.G.S. \u00a7 122C-66 makes it a crime to knowingly injure mentally or emotionally disabled patients in State facilities and provides guidelines for the reporting of actual or suspected abuse or exploitation of such patients.\nPlaintiff contends she was fired for reporting suspected patient abuse at the ARC to authorities in the State Bureau of Investigation (\u201cSBI\u201d) and the State Department of Human Resources (\u201cDHR\u201d) in Raleigh. Plaintiff sues six State employees, in both their individual and official capacities, for compensatory and punitive damages. She sues the Secretary of DHR in his official capacity only, seeking reinstatement and protection for other employees or patients reporting suspected abuse.\nThe six State employees (\u201cdefendant employees\u201d) held the following positions at the time of plaintiff\u2019s discharge: (i) Dr. Harman, Lenzer\u2019s primary supervisor, was a Physician III at the ARC; (ii) Dr. Baucom, plaintiff\u2019s backup supervisor, was director of the facility; (iii) Dr. Kayye was director of DHR\u2019s Division of Mental Health, Mental Retardation and Substance Abuse Services (\u201cDivision\u201d); (iv) Miriello was deputy director for Alcohol and Drug Abuse Services in the Division; (v) Cummings was director of the DHR Division of Personnel Management Services; and (vi) Byrne was chief of the Employee Relations Section in Cummings\u2019 division. Defendant employees became involved with plaintiff under the following circumstances.\nPlaintiff began working at the ARC in January 1983. In late January or early February 1985 one of plaintiff\u2019s co-workers, a male health care technician (\u201cAttendant N\u201d), allegedly told plaintiff he was having homosexual relations with a patient who had been discharged from the facility. Attendant N also told plaintiff these relations had occurred almost nightly while the patient was still a resident at the facility.\nPlaintiff reported this information about Attendant N to Dr. Harman, her immediate supervisor, and to Dr. Baucom. Dr. Baucom consulted the client advocate to determine whom to contact and how to proceed. The client advocate let plaintiff know her allegations were being investigated and Dr. Baucom would involve the SBI. Plaintiff also contacted the SBI on her own. According to plaintiff, the SBI indicated it was the appropriate agency to investigate plaintiffs dual concerns about patient exploitation and the operation of a male prostitution ring in Raleigh, to which she believed Attendant N might be referring ex-clients from the ARC.\nAttendant N denied any misconduct when confronted on 8 March 1985. The patient also denied sexual relations with the attendant. Management gave Attendant N a warning for breaching confidentiality by giving out a male patient\u2019s name, without the patient\u2019s permission, as a referral to a modeling agency. Defendant Byrne explained the decision to give Attendant N a warning as follows.\n[T]he reason that particular course of action was taken was due to the fact that neither the internal investigation of the allegations of his misconduct with patients, nor the SBI\u2019s investigation of the same incidents generated any substantial information sufficient to justify just cause for taking a more stringent kind of disciplinary action.\nIn late February 1986 a former patient phoned the ARC to complain of sexual exploitation in connection with the same attendant and a man introduced to the patient by Attendant N. The patient was readmitted to the ARC. Dr. Baucom again involved the client advocate, the SBI and public safety officers in interviews with patients and staff concerning this case. Plaintiff was questioned but had no first-hand knowledge of the case. In March 1986 Dr. Baucom sent defendants Miriello and Byrne written summaries of the status of these investigations, at Miriello\u2019s request. The record contains a handwritten statement by the victim in the 1986 case stating he had been threatened by Attendant N\u2019s friend, Attendant N had made sexual overtures to him, and Attendant N had told this patient about getting in trouble over having had sex with another patient until that patient had the \u201cgood sense\u201d to remain silent. The 1986 victim confirmed these statements in a taped oral interview with Dr. Baucom.\nIn March 1986 plaintiff reported her general concerns about this second case involving Attendant N directly to the SBI. In mid-April plaintiff also called Dr. Kayye, the director of the Division, and then spoke to Miriello, alleging that the ARC administration might be covering up such incidents and that she feared reprisal for her reporting possible cases of abuse. Plaintiff furnished a letter to Miriello at his request. Miriello shared that letter with Cummings and Byrne. A few days later Cummings told plaintiff, who called him on 21 April to say she was afraid of being disciplined - for reporting to the SBI, that DHR was aware of the allegations and investigations at the ARC.\nDr. Kayye believed plaintiff was falsely accusing her supervisors of covering up abuse but recognized plaintiff felt she was being harassed on account of her allegations. The other physician at the ARC, Dr. Shaver, viewed plaintiffs allegations of cover-up seriously.\nI admired [plaintiff\u2019s] sense of conscience and her concern, and I had no reason to distrust her personal evaluation of the situation. I admired her courage and her commitment to this kind of principle.\nDr. Shaver noticed that plaintiff\u2019s treatment by staff and supervisors changed after plaintiff began making these reports.\nDHR employees held several meetings to discuss plaintiff\u2019s perceptions and allegations. By the end of April, Cummings and Byrne had reviewed plaintiff\u2019s personnel file. Finding no evidence of any progressive discipline in that file, Cummings and Byrne concluded plaintiff had not been subjected to retaliation. Dr. Kayye, Cummings and Byrne all understood that physicians could have PAs removed from their medical licenses. Dr. Kayye, in fact, strongly expressed his conviction that a physician needed to be comfortable with any medical personnel practicing on the physician\u2019s license.\nOn 12 May 1986 Dr. Baucom learned for the first time from Dr. Kayye of plaintiff\u2019s phone calls to DHR about the second case involving Attendant N. According to Dr. Baucom, Dr. Kayye told him that Baucom \u201cneeded to go ahead and get rid of\u201d plaintiff but Dr. Kayye did not give a reason. The sworn testimony is also to the effect that Dr. Baucom and Miriello were shocked at Dr. Kayye\u2019s suggestion. According to Byrne, Dr. Kayye used even more colorful language, asking Dr. Baucom if he had yet fired that bitch or gotten the bitch off his medical license.\nOn 16 May Dr. Baucom, Byrne and Miriello met at the ARC to discuss the handling of plaintiffs allegations and plaintiffs job performance. At that meeting Dr. Baucom learned for the first time about plaintiffs contacts with the SBI, her written report to Miriello and her allegations that the administration was covering up abuse and that Dr. Harman had started holding non-disciplinary, supervisory sessions with plaintiff in order to harass plaintiff into keeping quiet. According to Dr. Baucom, the 16 May meeting focused \u201c[pjretty much [on] what was appropriate action to take with regards to [Attendant N] and also in regards to [plaintiff].\u201d At this meeting Byrne again mentioned a physician\u2019s option of withdrawing supervision from a PA. Dr. Baucom was aware that plaintiff had never received any formal discipline, as were the Raleigh officials. The meeting on 16 May lasted at least three hours.\nAs a result of that meeting, Dr. Baucom and Dr. Harman notified the State Board of Medical Examiners by letter on 19 May of their withdrawal of supervision from plaintiff, effective 20 May 1986. The letter stated no reason for the physicians\u2019 decision to withdraw supervision. Before 20 May DHR officials also informed the Secretary of DHR of the planned disposition of plaintiff\u2019s case. On 20 May Dr. Baucom and Dr. Harman met with plaintiff to inform her of the physicians\u2019 action with the State Board. At that meeting plaintiff admitted she no longer trusted her supervisors. Dr. Baucom informed plaintiff she was fired and had one hour to leave the premises. The same day Dr. Baucom informed Dr. Shaver that he and Dr. Harman could no longer supervise plaintiff on account of her insubordinate conduct in contacting SBI and DHR personnel in Raleigh.\nPrior to her termination plaintiff had received consistently high annual performance ratings, including an appraisal of \u201cvery good\u201d for 1985. Defendants do not dispute plaintiff\u2019s high level of competence in physical diagnosis and treatment. However, defendants point out that Dr. Harman complained to Byrne in mid-1985 about her difficulties in supervising plaintiff. According to Byrne, Dr. Harman consulted with him in May 1985 about plaintiff\u2019s tendencies to undertake tasks outside the scope of plaintiff\u2019s professional responsibilities. Byrne informed Dr. Harman that she had the option of writing up plaintiff\u2019s infractions. According to Dr. Harman\u2019s testimony, the problems with plaintiff confining herself to her medical role had come up as early as 1984. However, Dr. Harman did not begin putting her criticism of plaintiffs work, directed primarily at plaintiffs counseling of patients about childhood abuse, into writing until 25 February 1986. In their answers to plaintiffs complaint, Dr. Harman and Dr. Baueom both admit that \u201c[plaintiff\u2019s practices with regard to the areas criticized by [Dr.] Harman were not substantially different from the practices [plaintiff] had followed previously.\u201d Plaintiff received the first write-up in early March and a second write-up in early April 1986. Plaintiffs discharge followed on 20 May.\nIn plaintiffs subsequent administrative grievance procedure, DHR upheld her termination by letter from the DHR secretary dated 5 August 1986. DHR based its decision to affirm plaintiffs dismissal on section 9 of the State Personnel Manual: \u201cFailure to maintain the required credentials [of a job in State service] is a basis for immediate dismissal without prior warning.\u201d The statutory and regulatory basis for this credentials requirement as it applies to plaintiffs case is not in dispute. In order to be registered with the State Board of Medical Examiners, plaintiff needed supervision by two licensed physicians, a primary supervisor and a backup. N.C.G.S. \u00a7 90-18(13)b; N.C. Admin. Code tit. 21, r. 32D.0001 & .0002 (December 1984) (repealed 1 June 1990, replaced by r. 32L.0001 & .0009). A PA lacks the minimum credentials to practice in this State if she has no supervising physicians. N.C.G.S. \u00a7 90-18.1(a); N.C. Admin. Code tit. 21, r. 32D.0002 (December 1984) (repealed 1 June 1990, replaced by r. 32L.0004(c)). In affirming plaintiffs termination, DHR also took the position that the grievance procedure did not permit inquiry into the physicians\u2019 reasons for removing plaintiff from their licenses.\nPlaintiff filed this action on 15 May 1987. On 22 July 1987 all defendants moved for dismissal pursuant to Rule 12(b)(l,) (2) and (6) of the North Carolina Rules of Civil Procedure and each thereafter filed a detailed answer. Following substantial discovery, on 30 June 1989 defendants moved for summary judgment and filed 24 exhibits with the trial court. Plaintiff opposed this motion with a 47-page summary of facts purportedly established by 28 exhibits accompanying plaintiffs response to the summary judgment motion. The parties\u2019 exhibits on appeal run to more than 1,700 pages and include affidavits, selected excerpts from voluminous depositions and extracts from personnel files of a number of ARC employees who were disciplined for a variety of personal and job-related problems by means less drastic than discharge. After hearing on the motions, the trial court took defendants\u2019 motions for dismissal and summary judgment under advisement and subsequently ruled against plaintiff on each of her claims.\nThe trial court\u2019s order and amended order explain the legal bases for the court\u2019s rulings in some detail. The trial judge found no genuine issues of material fact and granted summary judgment to defendant employees, in their individual capacity, on plaintiff\u2019s claim for damages under 42 U.S.C. section 1983, premised on alleged retaliation for exercise of her First Amendment rights, as well as on plaintiff\u2019s claims for civil conspiracy and tortious interference with contract. On plaintiff\u2019s section 1983 claim for monetary relief against defendant employees in their official capacity, the trial court ruled that dismissal was appropriate under Rule 12 of the North Carolina Rules of Civil Procedure in that the DHR employees were not \u201cpersons\u201d under section 1983 and sovereign immunity barred such claims.\nThe trial court rested dismissal of four other claims against defendant employees in their official capacity on sovereign immunity as well: violation of plaintiff\u2019s rights under the State Constitution, violation of N.C.G.S. \u00a7 122C-66(b), wrongful discharge and civil conspiracy. The claim for tortious interference with contract, brought solely against plaintiff\u2019s supervising physicians, was also held barred by sovereign immunity as to the physicians\u2019 conduct in their official capacity. The court also dismissed the claim for injunctive relief against the secretary of DHR in his official capacity in light of the court\u2019s judgment against plaintiff as to all remaining defendants.\nThe trial court took a different approach to its dismissal of three claims brought against defendant employees individually. As to plaintiff\u2019s wrongful discharge claim, the court found that the allegations did \u201cnot fall within any exception to the employment-at-will doctrine,\u201d including the public policy exception urged by plaintiff. As to the State constitutional and N.C.G.S. \u00a7 122C-66(b) claims for monetary damages, the court ruled that \u201csaid claims are not cognizable in this State.\u201d\nWe affirm in part and reverse and remand in part. As discussed hereinafter, the trial court erred in granting summary judgment to defendant employees individually on plaintiff\u2019s claims for violation of section 1983, civil conspiracy and tortious interference with contract. The court also erred in dismissing the wrongful discharge claim against defendant employees in their individual capacity and in dismissing plaintiff\u2019s section 1983 claim for injunctive relief against defendant Flaherty in his official capacity. Dismissal of the section 1983 claims against the remaining defendants in their official capacity was correct. The court also properly dismissed plaintiff\u2019s State statutory and State constitutional claims against defendant employees individually. The court erred, however, in dismissing the State constitutional claim asserted against defendant employees in their official capacity. Finally, dismissal of the State statutory, wrongful discharge, civil conspiracy and tortious interference with contract claims against defendant employees in their official capacity was proper.\nI. Summary Judgment\nThe summary judgment order relieved defendant employees of liability in their individual capacity for violation of plaintiff\u2019s federal constitutional rights and civil conspiracy. It also relieved Dr. Baucom and Dr. Harman of individual liability for tortious interference with contract. Summary judgment on these claims was error. Summary judgment is only appropriate where the parties\u2019 pleadings and discovery materials establish there is no genuine issue of material fact. McLaughlin v. Barclays American Corp., 95 N.C. App. 301, 382 S.E.2d 836, cert. denied, 325 N.C. 546, 385 S.E.2d 498 (1989). Giving plaintiff as non-movant all favorable inferences that may reasonably be drawn from the evidence before the trial court, as we must, we find that each of these three claims raises controverted factual issues sufficient to withstand defendants\u2019 motion under N.C.G.S. \u00a7 1A-1, Rule 56(c).\nA State official will be personally answerable for damages under section 1983 only where qualified immunity is not available to shield the official from liability for deprivation of federal rights. Corum v. University of North Carolina, 330 N.C. 761, 772, 413 S.E.2d 276, 283 (1992). To maintain her claim under section 1983, plaintiff must first establish that the conduct was protected by showing that (i) the speech pertained to a matter of public concern and (ii) the public concern outweighed the governmental interest in efficient operations. See Connick v. Myers, 461 U.S. 138, 75 L.Ed.2d 708 (1983). The determination of whether the conduct is protected activity is a question of law. Id. at 148 n.7, 75 L.Ed.2d at 720 n.7.\nDefendants argue that summary judgment in their favor on plaintiffs section 1983 claim for violation of her federal free speech rights should be affirmed, in that (i) plaintiff\u2019s statements about a possible lack of vigor in investigating patient abuse at the ARC did not address a matter of public concern; (ii) even if plaintiff\u2019s speech touched an issue of public concern, the governmental interest in efficient institutional operations outweighed plaintiff\u2019s interest in making public comment; and (iii) even if plaintiff\u2019s interests were paramount, defendants were entitled to qualified immunity because their conduct was not clearly unlawful under existing precedent.\nAs to defendants\u2019 first argument, we cannot agree that plaintiff was speaking out for personal reasons unrelated to a matter of public concern when she questioned the vigor of investigations into possible mistreatment of patients at the ARC. Viewed in the light most favorable to plaintiff, the evidence is that plaintiff raised sincere concerns about patient abuse and that these concerns had some basis in fact. Evidence in the record suggests, for instance, that the ARC administration, knowing of an incident of sexual misconduct in 1983 between a male PA and a patient, sought to keep that information from going beyond the ARC. The record also reveals that Attendant N was treated somewhat indulgently despite his apparent guilt of sexual abuse of patients. About a month after plaintiff\u2019s discharge in May 1986, Attendant N received notice that he was terminated. One of the stated grounds was falsification of his employment application in 1975. When Attendant N challenged his firing, he was permitted to resign under a settlement guaranteeing him a neutral employment reference. Byrne\u2019s personal opinion was that Attendant N had been involved in sexual misconduct; and in Byrne\u2019s view Dr. Baucom had formed the same opinion. At her deposition Dr. Harman also testified that plaintiff\u2019s account of the 1985 conversation with Attendant N about his supposed sexual adventures with patients was credible. Finally, evidence in the record permits the inference that with the 1986 patient incident, the SBI was not immediately contacted by the ARC administration and the patient was assigned to Dr. Shaver rather than to plaintiff with instructions that the circumstances surrounding the patient\u2019s return not be written up in the patient\u2019s chart. This evidence does not support defendants\u2019 argument that plaintiff was making \u201cfalse allegations of a cover up to create a whistleblower claim in the event of her discharge\u201d for refusal to comply with Dr. Harman\u2019s instructions about how plaintiff was to do her job. Patient abuse in any form in government operated hospitals is a matter of public concern.\nNext defendants argue that their interest in institutional efficiency outweighed any free speech interests plaintiff might have had. We agree that a public employer may have certain institutional interests that must be weighed against an employee\u2019s rights to speak out on a matter of public concern. See, e.g., Connick v. Myers, 461 U.S. 138, 75 L.Ed.2d 708 (1983); Pickering v. Board of Education, 391 U.S. 563, 20 L.Ed.2d 811 (1968) (discussing the balancing of competing employee and employer interests). However, defendants\u2019 exhibits in the record are insufficient to demonstrate as a matter of law, as defendants argue, that \u201c[p]laintiff\u2019s continued employment with the ARC would inevitably have fostered disharmony and adversely affected discipline and morale in the work place, which would have impaired the efficiency of the institution.\u201d The record before us fails to support a reasonable apprehension that plaintiff\u2019s speech would damage staff morale or institutional efficiency. See Jurgensen v. Fairfax County, 745 F.2d 868, 879-80 (4th Cir. 1984).\nFinally, defendants assert that their conduct is insulated from liability by the doctrine of qualified immunity. In general, qualified immunity protects government officials from personal liability for performing discretionary functions to the extent that such conduct does not violate \u201c \u2018clearly established statutory or constitutional rights of which a reasonable person would have known.\u2019 \u201d Corum, 330 N.C. at 772-73, 413 S.E.2d at 284 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L.Ed.2d 396, 410 (1982)).\nOn the initial issue to be examined under the Harlow test\u2014 whether the specific right allegedly violated was \u201cclearly established\u201d \u2014 we conclude that public speech about suspected patient abuse in State facilities merits legal protection. This conclusion is fortified by the existence in this State of statutory provisions governing the reporting of such patient abuse. See, e.g., N.C.G.S. \u00a7 122C-66. The second issue to be examined under the Harlow test is whether reasonable persons in defendants\u2019 position could have failed to appreciate that their conduct would violate the specific rights alleged by plaintiff. Applying this part of the Harlow test to the present case requires \u201cfactual determinations respecting [defendants\u2019] conduct and its circumstances.\u201d Collinson v. Gott, 895 F.2d 994, 998 (4th. Cir. 1990) (Phillips, J., concurring). Although an employer\u2019s \u201csubjective beliefs about the legality of the demotion [or discharge] are irrelevant,\u201d Corum, 330 N.C. at 777, 413 S.E.2d at 286 (citing Anderson v. Creighton, 483 U.S. 635, 643, 97 L.Ed.2d 523, 532-33 (1987)), factual determinations about defendants\u2019 motives may also have to be made where motivation is an element of the cause of action.\n[The] \u201cpurely \u2018objective\u2019 test cannot in the end avoid the necessity to inquire into official motive or intent or purpose when such states of mind are essential elements of the constitutional right allegedly violated.\u201d\n[w]here the defendant\u2019s subjective intent is an element of the plaintiff\u2019s claim and the defendant has moved for summary judgment based on a showing of the objective reasonableness of his actions, the plaintiff may avoid summary judgment only by pointing to specific evidence that the officials\u2019 actions were improperly motivated.\nCorum, 330 N.C. at 773, 413 S.E.2d at 284-85 (quoting Collinson v. Gott, 895 F.2d 994, 1001-02 (4th Cir. 1990) (Phillips, J., concurring) (citations omitted).\nIn challenging an adverse employment decision for violation of constitutional rights, an employee establishes a prima facie case by showing that protected activity was a substantial or motivating factor in the employer\u2019s decision. Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 50 L.Ed.2d 471 (1977). This prima facie showing shifts the burden to the employer to show, by a preponderance of the evidence, that the adverse decision would have been made in the absence of the protected activity. Id. In the present case plaintiff\u2019s forecast of evidence meets the prima facie threshold for showing that her protected speech played a motivating part in plaintiff\u2019s termination.\nAlthough evidence of retaliation in a case such as this one may often be completely circumstantial, the causal nexus between protected activity and retaliatory discharge must be something more than speculation. Brooks v. Stroh Brewery Co., 95 N.C. App. 226, 237, 382 S.E.2d 874, 882, disc. rev. denied, 325 N.C. 704, 388 S.E.2d 449 (1989). Plaintiff\u2019s evidence on this record goes beyond speculation and conjecture and meets the quantum of sufficient specific evidence required by Corum in this type case. 330 N.C. at 778-79, 413 S.E.2d at 287. Therefore, defendants could only prevail at the summary judgment stage by showing, to counter plaintiff\u2019s prima facie case, that there is no genuine issue of fact as to the legitimacy of the reason motivating their decision regarding plaintiff. This showing is not made on the record now before this Court. Since defendants concede plaintiff\u2019s alleged deviation from ARC policies and protocols had long been tolerated without any disciplinary action, we cannot say plaintiff\u2019s discharge would have occurred notwithstanding the protected conduct at issue in this case. Defendants\u2019 longstanding tolerance of plaintiff\u2019s alleged insubordination throws into question the credibility of defendants\u2019 account of their motivation in firing plaintiff. If defendants\u2019 \u201cmotive was to suppress speech, one result is reached, while if the motive was to punish insubordination, another conclusion results.\u201d Corum, 330 N.C. at 777, 413 S.E.2d at 286. In the present case defendants\u2019 motives in having plaintiff\u2019s supervisors withdraw plaintiff from their medical licenses is a material, controverted issue of fact bearing on the question of whether defendants violated plaintiff\u2019s free speech rights under federal law. Under the Harlow test as discussed in Corum, then, defendants have not established their entitlement to summary judgment, as a matter of law, on the basis of the defense of qualified immunity. Accordingly, we reverse summary judgment in favor of defendants in their individual capacity on plaintiff\u2019s section 1983 claim and remand that claim to the trial court.\nWe turn next to plaintiff\u2019s claim against defendants individually for monetary relief based on civil conspiracy.\nA claim for damages resulting from a conspiracy exists where there is an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way, and, as a result of acts done in furtherance of, and pursuant to, the agreement, damage occurs to the plaintiff. In such a case, all of the conspirators are liable, jointly and severally, for the act of any one of them done in furtherance of the agreement.\nFox v. Wilson, 85 N.C. App. 292, 301, 354 S.E.2d 737, 743 (1987) (citations omitted). Plaintiff\u2019s allegations of civil conspiracy are that defendants had an implicit or explicit agreement (i) to silence and discredit plaintiff by removing her from her supervising physicians\u2019 licenses in order to fire her on the pretext that she lacked the necessary credentials and (ii) to prevent the proper investigation of patient abuse at the ARC. Pursuant to that agreement, plaintiff alleged, inter alia, defendants discharged plaintiff, forced one or more other employees who had knowledge of abuse to resign, permitted Attendant N to resign with a promise not to disclose to his prospective employers the allegations of sexual misconduct against him at the ARC, manipulated patients into withdrawing or moderating complaints of sexual exploitation and attempted to obtain false affidavits against plaintiff and other employees who were openly critical of administrative handling of sexual abuse complaints.\nThe evidence in the record is sufficient to raise more than a conjecture or suspicion as to the existence of an agreement to discharge plaintiff for exercise of her First Amendment rights in reporting potential patient abuse. See Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981). As the record raises genuine issues of material fact with respect to this allegation and others relating to the proper investigation of patient abuse, summary judgment was improper.\nFurther, we do not agree with defendants\u2019 contention that this common law cause of action for civil conspiracy is barred as a matter of law by the intra-corporate immunity doctrine. Our research discloses no North Carolina case in which the doctrine has been adopted as a defense to civil conspiracy. Among the federal circuit courts, the authorities are split as to the application of the doctrine in actions arising under federal statutes, in particular 42 U.S.C. section 1985(3). See Buschi v. Kervin, 775 F.2d 1240, 1252 (4th Cir. 1985), and Garza v. City of Omaha, 814 F.2d 553, 556 (8th Cir. 1987). Moreover, even if we were to adopt the doctrine, on the evidence in this record, a genuine issue of material fact would still exist as to defendants\u2019 motive. As the court stated in Buschi,\nthe doctrine is inapplicable \u201cwhere the plaintiff has alleged that the corporate employees were dominated by personal motives or where their actions exceeded the bounds of their authority.\u201d\n775 F.2d at 1252 (citation omitted). We, therefore, reverse that portion of the trial court\u2019s order granting summary judgment to defendant employees on plaintiff\u2019s civil conspiracy claim.\nWe next address plaintiff\u2019s claim against Dr. Baucom and Dr. Harman individually for tortious interference with contract. In order to establish a claim for tortious interference with an existing contract, plaintiff needed to forecast evidence of the following elements:\nFirst, that a valid contract existed between the plaintiff and a third person, conferring upon the plaintiff some contractual right against the third person. Second, that the outsider had knowledge of the plaintiff\u2019s contract with the third person. Third, that the outsider intentionally induced the third person not to perform his contract with the plaintiff. Fourth, that in so doing the outsider acted without justification. Fifth, that the outsider\u2019s act caused the plaintiff actual damages.\nChildress v. Abeles, 240 N.C. 667, 674, 84 S.E.2d 176, 181-82 (1954) (citations omitted). Plaintiff\u2019s complaint and discovery documents give an evidentiary forecast, adequate to withstand defendants\u2019 motion for summary judgment, that the PA position she held at the ARC was a permanent position with a State classification of Physician Extender II; that defendants Baucom and Harman withdrew supervision from plaintiff for the purpose of causing her to lose the certification required for plaintiff to maintain her position with the State; that defendants were motivated by unlawful reasons rather than legitimate business interests; and that withdrawal of supervision in fact caused the intended effect of plaintiff losing her employment, resulting in damage to plaintiff. Under our case law plaintiff\u2019s cause of action for tortious interference with contract lies even though her employment contract was terminable at will. Smith v. Ford Motor Co., 289 N.C. 71, 85, 221 S.E.2d 282, 290, 79 A.L.R.3d 651, 662 (1976); Sides v. Duke University, 74 N.C. App. 331, 345-48, 328 S.E.2d 818, 828-30, disc. rev. denied, 314 N.C. 331, 333 S.E.2d 490 (1985).\nDefendants Baucom and Harman contend they cannot be liable for tortious interference with contract in that their supervisory status dictates they were not outsiders to plaintiff\u2019s employment contract. It is true that so-called \u201cnon-outsiders\u201d often enjoy qualified immunity from liability for inducing their corporation or other entity to breach its contract with an employee. See, e.g., Smith v. Ford Motor Co., 289 N.C. 71, 221 S.E.2d 282, 79 A.L.R.3d 651 (1976); Wilson v. McClenny, 262 N.C. 121, 136 S.E.2d 569 (1964) (considering corporate stockholders and directors, with interest in activities of corporation and duty to advise or direct such activities). However, even if defendants Baucom and Harman were deemed to have the status of non-outsiders, such status \u201cis pertinent only to the question [of the] justification for [defendants\u2019] action.\u201d Smith, 289 N.C. at 88, 221 S.E.2d at 292, 79 A.L.R.3d at 665. The qualified privilege of a non-outsider is lost if exercised for motives other than reasonable, good faith attempts to protect the non-outsider\u2019s interests in the contract interfered with. Id. at 91, 221 S.E.2d at 294, 79 A.L.R.3d at 668. Plaintiff\u2019s forecast of evidence raises precisely the issue of wrongful purpose, which purpose would defeat a non-outsider\u2019s qualified privilege to interfere. For the foregoing reasons, we reverse the order of the trial court granting summary judgment to defendants Baucom and Harman in their individual capacity on plaintiff\u2019s claim for tortious interference with contract.\nII. Section 1983 Claims: Official Capacity\nThe trial court erred in dismissing the section 1983 claim against defendant Flaherty in his official capacity. For purposes of a claim for prospective equitable relief from violation of federal constitutional law, State officials acting in their official capacity are \u201cpersons\u201d reachable under section 1983. Kentucky v. Graham, 473 U.S. 159, 167 n.14, 87 L.Ed.2d 114, 122 n.14 (1985). Neither sovereign immunity nor qualified immunity will bar such a claim. Corum v. University of North Carolina, 330 N.C. 761, 771, 413 S.E.2d 276, 283 (1992). Therefore, we reverse as to defendant Flaherty.\nHowever, State officials and agents are not \u201cpersons\u201d covered by section 1983 when the remedy sought is monetary damages. Will v. Michigan Dep\u2019t of State Police, 491 U.S. 58, 105 L.Ed.2d 45 (1989). Thus the trial court did not err in dismissing the section 1983 claims for monetary damages against all remaining defendants in their official capacity and we affirm that portion of the trial court\u2019s order.\nIII. Rule 12 Dismissals: Individual Capacity\nFinding no precedent for plaintiffs State constitutional claims, the trial court ruled these claims were not cognizable in North Carolina. Our Supreme Court has since recognized a direct cause of action for violation of an individual\u2019s protected speech rights under Article 1, Section 14 of the State Constitution. Corum v. University of North Carolina, 330 N.C. 761, 413 S.E.2d 276 (1992). However, Corum expressly held that State constitutional claims are not cognizable against State actors in their individual capacity. Id. at 788, 413 S.E.2d at 293. Therefore, we affirm the trial court\u2019s dismissal of plaintiff\u2019s State constitutional claims against defendant employees in their individual capacity.\nPlaintiff also seeks to bring a claim against defendant employees individually for monetary damages under N.C.G.S. \u00a7 122C-66(b). Plaintiff argues that the legislature has provided express protection against retaliatory discharge for State employees such as plaintiff by enacting the following provision.\nAn employee of a facility who . . . has knowledge of [pain or injury to a client caused by another employee or volunteer, \u201cother than as a part of generally accepted medical or therapeutic procedure,\u201d N.C.G.S. \u00a7 122C-66(a)J . . . shall report the violation ... to authorized personnel designated by the facility. No employee making a report may be threatened or harassed by any other employee or volunteer on account of the report. Violation of this subsection is a misdemeanor punishable by a fine, not to exceed five hundred dollars ($500.00).\nN.C.G.S. \u00a7 122C-66(b) (1985).\nThis statutory provision is criminal in nature and does not create the sweeping remedy urged by plaintiff. While N.C.G.S. \u00a7 122C-66 requires reporting of known or suspected abuse of patients in facilities subject to the licensing requirements of Chapter 122C such as the ARC, the language of this provision does not create a cause of action for retaliatory discharge against an employer by an employee discharged in retaliation for reporting suspected patient abuse. For this reason we affirm the dismissal of this claim.\nAs to plaintiff\u2019s claim for wrongful discharge, the facts of this case fit within the public policy exception to the employment-at-will doctrine as that exception has recently been delineated by our Supreme Court. In Amos v. Oakdale Knitting Co., 331 N.C. 348, 353, 416 S.E.2d 166, 169 (1992), the Court declared that \u201cat the very least public policy is violated when an employee is fired in contravention of express policy declarations contained in the North Carolina General Statutes.\u201d That observation, in our view, applies with equal force to rights guaranteed by the State Constitution such as plaintiff\u2019s free speech claim. Similarly, discharge resulting from a report made pursuant to N.C.G.S. \u00a7 122C-66 would give rise to a cause of action for wrongful discharge under the public policy exception to the at-will doctrine. Therefore, we reverse the dismissal of the wrongful discharge claim.\nIV. Dismissal of Other Claims: Official Capacity\nCorum permits suit against State actors in their official capacity for violation of the free speech rights protected by the North Carolina Constitution. The trial court erred in holding such claims barred by sovereign immunity. See Corum, 330 N.C. at 785-86, 413 S.E.2d at 292. Under the standard reviewed in our earlier discussion of plaintiff\u2019s section 1983 claim against defendant employees in their individual capacity, the allegations of plaintiff\u2019s complaint state a cause of action for violation of plaintiff\u2019s free speech rights protected under the North Carolina Constitution. We, therefore, reverse the portion of the trial court\u2019s order dismissing the State constitutional claim against defendant employees in their official capacity.\nOn the other hand, the claim against defendant employees in their official capacity for violation of N.C.G.S. \u00a7 122C-66(b) was correctly dismissed on the ground that this statute creates no civil cause of action against an employer for retaliatory discharge, as we have already discussed. Dismissal of plaintiff\u2019s claims for civil conspiracy and wrongful discharge were likewise properly rested on the ground that such actions against defendant employees in their official capacity were barred by the doctrine of sovereign immunity. The trial court\u2019s dismissal of the claim against Dr. Baucom and Dr. Harman in their official capacity for tortious interference with contract was also correctly grounded on sovereign immunity. Accordingly, we affirm dismissal of these four claims.\nIn light of the foregoing discussion of plaintiff\u2019s claims, defendants\u2019 cross assignments of error premised on defendants\u2019 alternative motions are not well-founded and are overruled.\nAffirmed in part; reversed in part and remanded.\nJudges JOHNSON and ORR concur.\n. For organizational purposes, the legal issues in this opinion are discussed as they were disposed of in the trial court\u2019s orders, namely, by summary judgment or as Rule 12(b)(6) dismissals; however, nothing in this opinion is intended in any way to suggest a modification of that part of Rule 12(b) which provides that where \u201cmatters outside the pleading are presented to and not excluded by the court, the [Rule 12(b)(6)] motion shall be treated as one for summary judgment.\u201d", "type": "majority", "author": "PARKER, Judge." } ], "attorneys": [ "Edelstein, Payne & Nelson, by M. Travis Payne, for plaintiff-appellant.", "Christie Institute South, by P. Lewis Pitts, Jr., for plaintiff-appellant.", "Attorney General Lacy H. Thornburg, by Senior Deputy Attorney General Ann Reed and Special Deputy Attorney General John R. Come, for defendant-appellees.", "Faison & Brown, by O. William Faison and Reginald B. Gillespie, Jr., for defendant-appellees Baucom and Harman." ], "corrections": "", "head_matter": "JEANNE M. LENZER v. DAVID T. FLAHERTY, In his official capacity as Secretary of the Department of Human Resources, PAUL T. KAYYE, Individually and in his official capacity as Director of the Division of Mental Health, Mental Retardation and Substance Abuse Services of the Department of Human Resources, THOMAS MIRIELLO, Individually and in his official capacity as Deputy Director for Alcohol and Drug Abuse Services of the Division of Mental Health, Mental Retardation and Substance Abuse Services [of the Department of Human Resources], DON CUMMINGS, Individually and in his official capacity as Director of the Division of Personnel [Management] Services of the Department of Human Resources, MICHAEL F. BYRNE, Individually and in his official capacity as Chief of the Employee Relations Section of the Department of Human Resources, ROBERT L. BAUCOM, Individually and in his official capacity as Director of ARC-Butner, and HARRIET M. HARMAN, Individually and in her official capacity as Assistant Director of ARC-Butner\nNo. 9014SC230\n(Filed 7 July 1992)\n1. Constitutional Law \u00a7 115 (NCI4th)\u2014 physician\u2019s assistant\u2014 statements about investigation of patient abuse \u2014termination of employment \u2014free speech rights \u2014civil rights action\nThe trial court erred in entering summary judgment for defendant State employees in their individual capacities in plaintiff\u2019s 42 U.S.C. \u00a7 1983 action for violation of her federal free speech rights where plaintiff was discharged as a physician\u2019s assistant at an alcohol rehabilitation center after she questioned the vigor of investigations into possible mistreatment of patients at the center; plaintiff\u2019s statements addressed a matter of public concern; the government\u2019s interest in institutional efficiency did not outweigh plaintiff\u2019s free speech interests; the conduct of defendants was not insulated by the doctrine of qualified immunity; and plaintiff\u2019s forecast of evidence made a prima facie showing that her protected speech played a motivating part in the termination of her employment.\nAm Jur 2d, Constitutional Law \u00a7\u00a7 496 et seq.\nFirst amendment protection for public hospital or health employees subjected to discharge, transfer or discipline because of speech. 107 ALR Fed 21.\n2. Conspiracy \u00a7 12 (NCI4th)\u2014 civil conspiracy \u2014free speech rights \u2014sufficient forecast of evidence\nThe trial court erred in granting summary judgment for defendant State employees individually on plaintiff\u2019s claim for civil conspiracy to discharge plaintiff as a physician\u2019s assistant at an alcohol rehabilitation center for exercising her free speech rights in reporting possible patient abuse where her forecast of evidence supported her allegations that defendants had an implicit or explicit agreement to prevent the proper investigation of patient abuse at the center and to silence and discredit plaintiff by removing her from her supervising physicians\u2019 licenses in order to fire her for lacking the necessary credentials. Furthermore, even if the intra-corporate immunity doctrine were adopted by the Court of Appeals, this doctrine would not bar plaintiff\u2019s action for civil conspiracy because a genuine issue of material fact would still exist as to defendants\u2019 motives.\nAm Jur 2d, Constitutional Law \u00a7\u00a7 496 et seq.\nFirst amendment protection for public hospital or health employees subjected to discharge, transfer or discipline because of speech. 107 ALR Fed 21.\n3. Master and Servant \u00a7 13 (NCI3d)\u2014 tortious interference with employment contract \u2014 sufficient forecast of evidence \u2014qualified privilege of non-outsiders\nThe trial court erred in granting summary judgment for defendant supervising physicians individually on the claim of plaintiff physician\u2019s assistant for tortious interference with her employment contract where plaintiff\u2019s forecast of evidence tended to show that she held a permanent position at an alcohol rehabilitation center with a State classification of Physician Extender II; defendants withdrew their supervision of plaintiff for the purpose of causing plaintiff to lose the certification required to maintain her position with the State; defendants were motivated by unlawful reasons rather than legitimate business interests; and withdrawal of supervision in fact caused the intended effect of plaintiff losing her employment, resulting in damage to plaintiff. Even if defendants are deemed to have the status of non-outsiders, plaintiff\u2019s forecast of evidence raises the issue of wrongful purpose which would defeat a non-outsider\u2019s qualified privilege to interfere with plaintiff\u2019s contract of employment.\nAm Jur 2d, Interference \u00a7 45.\n4. Constitutional Law \u00a7 86 (NCI4th)\u2014 \u00a7 1983 claim \u2014 Secretary of DHR \u2014official capacity \u2014 reinstatement to job\nThe trial court erred in dismissing plaintiff\u2019s 42 U.S.C. \u00a7 1983 claim against the Secretary of DHR in his official capacity seeking reinstatement to her job since State officials acting in their official capacities are \u201cpersons\u201d reachable under \u00a7 1983 when sued for prospective equitable relief.\nAm Jur 2d, Civil Rights \u00a7 17.\n5. Constitutional Law \u00a7 86 (NCI4th)\u2014 \u00a7 1983 claims \u2014State agents \u2014official capacities \u2014damages claims barred\nThe trial court properly dismissed plaintiff\u2019s \u00a7 1983 claims for monetary damages against State officials and agents in their official capacities since they are not \u201cpersons\u201d covered by \u00a7 1983 when the remedy sought is monetary damages.\nAm Jur 2d, Civil Rights \u00a7 17.\n6. Constitutional Law \u00a7 115 (NCI4th)\u2014 free speech violation \u2014 State agents \u2014individual capacities \u2014no claim under N.C. Constitution\nA plaintiff has no direct claim under the N.C. Constitution against State agents sued in their individual capacities for alleged violations of her free speech rights.\nAm Jur 2d, Civil Rights \u00a7 17.\n7. Master and Servant \u00a7 10.2 (NCI3d)\u2014 reporting of patient abuse \u2014no statutory claim for retaliatory discharge\nWhile N.C.G.S. \u00a7 122C-66 requires reporting of known or suspected abuse of patients in facilities licensed under Chapter 122C, this statute does not create a cause of action for retaliatory discharge by an employee discharged for reporting suspected patient abuse.\nAm Jur 2d, Master and Servant \u00a7 60.\n8. Master and Servant \u00a7 10.2 (NCI3d)\u2014 wrongful discharge \u2014free speech \u2014 report of patient abuse \u2014public policy exception\nThe discharge of an employee for exercising her free speech rights guaranteed by the N.C. Constitution or for reporting patient abuse pursuant to N.C.G.S. \u00a7 122C-66 gives rise to a cause of action for wrongful discharge under the public policy exception to the employment-at-will doctrine.\nAm Jur 2d, Master and Servant \u00a7 60.\n9. Constitutional Law \u00a7 115 (NCI4th); State \u00a7 4.2 (NCI3d|\u2014 State officials \u2014official capacities \u2014sovereign immunity \u2014free speech violation \u2014 other claims\nThe trial court erred in holding that plaintiffs claims against State officials in their official capacities for violation of her free speech rights protected by the N.C. Constitution were barred by sovereign immunity. However, the trial court properly dismissed plaintiffs claims against State officials in their official capacities for civil conspiracy, wrongful discharge and tortious interference with contract on the ground that such claims were barred by sovereign immunity.\nAm Jur 2d, Constitutional Law \u00a7 282.\nAppeal by plaintiff from orders entered 27 September 1989 and 16 October 1989 by Judge Robert H. Hobgood in DURHAM County Superior Court. Heard in the Court of Appeals 21 February 1991.\nEdelstein, Payne & Nelson, by M. Travis Payne, for plaintiff-appellant.\nChristie Institute South, by P. Lewis Pitts, Jr., for plaintiff-appellant.\nAttorney General Lacy H. Thornburg, by Senior Deputy Attorney General Ann Reed and Special Deputy Attorney General John R. Come, for defendant-appellees.\nFaison & Brown, by O. William Faison and Reginald B. Gillespie, Jr., for defendant-appellees Baucom and Harman." }, "file_name": "0496-01", "first_page_order": 526, "last_page_order": 546 }