{ "id": 4156007, "name": "TONDI HOLT, Plaintiff v. ALBEMARLE REGIONAL HEALTH SERVICES BOARD, and JERRY L. PARKS, in his official capacity as Health Director, Defendants", "name_abbreviation": "Holt v. Albemarle Regional Health Services Board", "decision_date": "2008-01-15", "docket_number": "No. COA07-262", "first_page": "111", "last_page": "120", "citations": [ { "type": "official", "cite": "188 N.C. App. 111" } ], "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": "622 S.E.2d 702", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634561 ], "weight": 7, "year": 2005, "pin_cites": [ { "page": "707" }, { "page": "706", "parenthetical": "alterations in original" }, { "page": "707" }, { "page": "707" } ], "opinion_index": 0, "case_paths": [ "/se2d/622/0702-01" ] }, { "cite": "618 S.E.2d 201", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633816 ], "year": 2005, "pin_cites": [ { "page": "206" } ], "opinion_index": 0, "case_paths": [ "/se2d/618/0201-01" ] }, { "cite": "294 F. Supp. 2d 746", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 9296776 ], "weight": 4, "year": 2003, "pin_cites": [ { "page": "749" }, { "page": "752" }, { "page": "758", "parenthetical": "footnote omitted" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/294/0746-01" ] }, { "cite": "567 S.E.2d 803", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "811" }, { "parenthetical": "citation omitted" }, { "page": "811" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 307", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249985 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "317" }, { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0307-01" ] }, { "cite": "501 S.E.2d 99", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "103" }, { "page": "104" }, { "page": "103" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 649", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11652142 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "655" }, { "page": "657" }, { "page": "655" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0649-01" ] }, { "cite": "175 N.C. App. 110", "category": "reporters:state", "reporter": "N.C. 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Gen. Stat. \u00a7 126-85", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2005, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 126-84", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 9, "year": 2005, "pin_cites": [ { "page": "116-17" }, { "page": "(a)", "parenthetical": "statement of policy" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 159-7", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(b)(l)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 884, "char_count": 21437, "ocr_confidence": 0.75, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1353351102709077 }, "sha256": "c4aabddc6128705413aab4c28bd800ff55cdc691c30ec407fad2d51e6ef1e84b", "simhash": "1:c206dc9b9fde2043", "word_count": 3303 }, "last_updated": "2023-07-14T21:34:30.605877+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and BRYANT concur." ], "parties": [ "TONDI HOLT, Plaintiff v. ALBEMARLE REGIONAL HEALTH SERVICES BOARD, and JERRY L. PARKS, in his official capacity as Health Director, Defendants" ], "opinions": [ { "text": "HUNTER, Judge.\nTondi Holt (\u201cplaintiff\u201d) appeals the trial court\u2019s grant of Albermarle Regional Health Services Board\u2019s (\u201cARHS\u201d) and Jerry L. Parks\u2019s (\u201cParks\u201d) (collectively \u201cdefendants\u201d) motion for summary judgment. After careful consideration, we affirm.\nIn early 2004, plaintiff was employed as a Finance Officer for ARHS. She was also involved with the personnel department and helped develop and implement agency policies. ARHS is a district health department and a public authority under N.C. Gen: Stat. \u00a7 130A-36(a) (2005) and N.C. Gen. Stat. \u00a7 159-7(b)(l) (2005). As a state institution, ARHS is barred from terminating an employee for reporting a violation of state policy as defined by N.C. Gen. Stat. \u00a7 126-84 (2005). N.C. Gen. Stat. \u00a7 126-85 (2005). No employee of a state agency who serves in a supervisory capacity may terminate an employee for reporting a violation of state policy. Id.\nOn 28 January 2004, plaintiff was terminated from her employment with ARHS by Parks. Plaintiff claims her termination is a violation of the above referenced statutes (\u201cthe Whistleblower Act\u201d). See N.C. Gen. Stat. \u00a7 126-84, et seq. (2005). Defendants, however, argue that plaintiff was in fact terminated for breaching her confidentiality obligations, which defendants characterized as \u201cunacceptable personal conduct[.]\u201d\nIn November 2003, Parks told plaintiff that ARHS would terminate the agency\u2019s safety director, \u201cL,\u201d an employee with thirty years\u2019 service to ARHS. According to plaintiff, Parks informed her that a member of ARHS\u2019s executive board wanted to terminate L because L had not done his job in thirty years. Plaintiff also stated that Parks told her that L had been placed in the position of safety director until he could retire, and it was time to let L go. Plaintiff told Parks that there was no cause to fire L, and she did not want to be part of any termination proceeding against him.\nDuring ARHS\u2019s executive board meeting, the discussion of terminating L came up. Plaintiff asked to be excused from the meeting and she was.\nAccording to plaintiff, in December 2003, ARHS\u2019s personnel consultant, Sylvia Johnson (\u201cJohnson\u201d), told her that a reduction in work force would be used to terminate L. Plaintiff told Johnson that she thought such action was illegal and wrong, and she did not want to be part of any termination proceedings against L. Plaintiff also stated that she was warned not to meddle with the board\u2019s actions to terminate L, as the board was behind the decision.\nOn 19 December 2003, L met with Parks offsite in order that, according to plaintiff, she would not be involved in the termination. At the meeting, L was terminated. According to plaintiff, Parks informed L that if anyone else became involved with his termination that they were putting their jobs at risk.\nOn 6 January 2004, plaintiff met with Parks and Johnson. According to plaintiff, she told them that if there was litigation between defendants and L, she would testify truthfully and felt that she needed her own legal representation. Johnson, however, testified that plaintiff provided little context as to why the meeting was being held and that she continually sought reassurances that her job would be protected were L to \u201cdo something.\u201d According to Johnson, Parks reassured her that her job would be protected. Johnson also said that there was no discussion as to whether plaintiff would be provided with legal representation were L to bring an action because they were unaware as to what L was planning. Plaintiff was ultimately terminated on 22 January 2004.\nDefendants contend plaintiff was terminated for violating confidentiality requirements imposed by the Health Information Portability and Accountability Act (\u201cHIPAA\u201d) and agency policy. Defendants\u2019 evidence is summarized below.\nIn January 2004, Parks was notified by Dennis Harrington (\u201cHarrington\u201d) of the Department of Health and Human Services (\u201cDHHS\u201d) of suspected violations of state and local law involving plaintiff and Allen Jones (\u201cJones\u201d). According to Parks, he learned that during December 2003 confidential patient health information had been illegally generated at ARHS at plaintiff\u2019s direction. The reports contained confidential information for Medicaid clinical services provided at another county health department, the Martin Tyrrell Washington District Health Department (\u201cWHD\u201d). According to Parks, the reports indicated that WHD had approximately 1.6 million dollars in Medicaid funds which had gone uncollected. The records were given by plaintiff to Jones and contained plaintiff\u2019s handwritten notes.\nJones took the documentation to WHD and told its director, Keith Patton (\u201cPatton\u201d), that he would assist them in collecting the money owed in exchange for twenty-five percent of the funds collected. Jones told Patton that he received the documentation from ARHS and that it had been reviewed and given to him by plaintiff.\nIn January 2004, Patton logged a formal complaint against ARHS. The complaint alleged that ARHS staff had improperly accessed confidential patient information in the WHD. After meeting with state representatives about the incident, Parks understood that plaintiff\u2019s actions violated HIPAA, state, and local privacy laws.\nAfter receiving assurances that plaintiff had violated the law from Jill Moore, a specialist with the Institute of Government, Parks scheduled a pre-dismissal conference with plaintiff. At the conference, plaintiff did not deny the allegations against her and conceded that she had written the summaries of the reports and given them to Jones. Defendants then terminated plaintiff.\nPlaintiff raises the following issues for this Court\u2019s review: (1) whether the evidence establishes that plaintiff\u2019s conduct was protected under the Whistleblower Act; and (2) whether the evidence shows that defendants\u2019 reason for termination was a pretext for firing plaintiff for protected conduct.\nWe review a trial court\u2019s grant of summary judgment de novo. Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 470, 597 S.E.2d 674, 693 (2004). \u201cSummary judgment is appropriate \u2018if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that [a] party is entitled to a judgment as a matter of law.\u2019 \u201d Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003) (alteration in original) (quoting N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c)). \u201cEvidence presented by the parties is viewed in the light most favorable to the non-movant.\u201d Id.\nI.\nThe North Carolina Whistleblower Act, N.C. Gen. Stat. \u00a7\u00a7 126-84 to 88 (2005), requires a plaintiff to prove the following three essential elements by a preponderance of the evidence in order to establish a prima facie case: \u201c(1) that the plaintiff engaged in a protected activity, (2) that the defendant took adverse action against the plaintiff in his or her employment, and (3) that there is a causal connection between the protected activity and the adverse action taken against the plaintiff.\u201d Newberne v. Department of Crime Control & Pub. Safety, 359 N.C. 782, 788, 618 S.E.2d 201, 206 (2005).\nWe first address whether plaintiff, taking the evidence in the light most favorable to her, engaged in protected conduct. To be protected, the whistleblowing activity must constitute a report about \u201cmatters affecting general public policy.\u201d Hodge v. N.C. Dep\u2019t of Transp., 175 N.C. App. 110, 117, 622 S.E.2d 702, 707 (2005). The WTiistleblower Act establishes a state policy to\nencourage its employees to report violations of state or federal law, rules or regulation; fraud; misappropriation of state resources; \u201c[substantial and specific danger to the public health and safety; or [g]ross mismanagement, a gross waste of monies, or gross abuse of authority;\u201d and it further protects State employees from intimidation or harassment when they report on \u201cmatters of public concern.\u201d N.C. Gen. Stat. \u00a7 126-84 (2003). Employees who report activities under this statute are protected from retaliation under N.C. Gen. Stat. \u00a7 126-85 (2003).\nId,, at 116, 622 S.E.2d at 706 (alterations in original).\nIn the instant case, plaintiff alleges that her protected activity was announcing that she intended to testify truthfully were L to bring litigation. In Hodge, the \u201cplaintiff\u2019s \u2018report\u2019 was [a] lawsuit seeking reinstatement to his former position.\u201d Id. at 117, 622 S.E.2d at 707. This Court held that the lawsuit did not concern matters affecting general public policy because it \u201crelated only tangentially at best to a potential violation of the North Carolina Administrative Code.\u201d Id. This Court has therefore declined \u201cto extend the definition of a protected activity to individual employment actions that do not implicate broader matters of public concern.\u201d Id. In so concluding, the Court in Hodge reasoned that \u201cthe General Assembly [did not] intend[] N.C. Gen. Stat. \u00a7 126-84 to protect a [s]tate employee\u2019s right to institute a civil action concerning employee grievance matters.\u201d Id.\nLike the plaintiff in Hodge, plaintiff in this case has made only conclusory allegations that L\u2019s termination was the result of \u201cunlawful age discrimination, and a violation of the State Personnel Act.\u201d Nowhere are there specific statements made by plaintiff that L was fired due to his age; instead, plaintiff concedes that L had a history of poor job performance, that plaintiff herself advocated his termination in prior years, and that defendants did not violate their own policy by not offering a new position to L. Ultimately, the dispute between the parties is an individual termination action that does not implicate broader matters of public concern.\nThis Court has applied whistleblower protection to those \u201cwho allege retaliation after cooperating in investigations regarding misconduct by their supervisors].]\u201d Id. at 116-17, 622 S.E.2d at 706 (citing Caudill v. Dellinger, 129 N.C. App. 649, 655, 501 S.E.2d 99, 103 (1998) \u201c(employee terminated after cooperating with State Bureau of Investigation regarding misconduct by her supervisor was able to make out a prima facie case under N.C. Gen. Stat. \u00a7 126-84)\u201d).\nUnlike in Caudill, however, plaintiff merely stated that she would testify truthfully and never actually testified or cooperated with any investigating agency regarding the termination of L. Moreover, Caudill held that \u201c[i]t is the public policy of this state that citizens cooperate with law enforcement officials in the investigation of crimes.\u201d Caudill, 129 N.C. App. at 657, 501 S.E.2d at 104. In the instant case, there has been no investigation or substantiated allegations that the termination of L was in violation of any state laws or regulations. Instead, this case is more in line with Hodge: It involves an individual employment action, the termination of L, and there is no evidence that defendants engaged in \u201c[g]ross mismanagement\u201d or a \u201cviolation of State or federal law, rule or regulation\u201d that would afford plaintiff protection under the Whistleblower Act. See N.C. Gen. Stat. \u00a7 126-84(a) (statement of policy). Instead, plaintiff could have filed a grievance with defendants after her termination. Accordingly, plaintiffs conduct, even construing the evidence in her favor, is insufficient to establish a prima facie case, and plaintiffs assignment of error as to this issue is rejected. As plaintiff is unable to establish that her conduct was protected within the meaning of the Act, we need not address whether the other elements of a prima facie case have been established. However, in the alternative, we also discuss in Section II of this opinion whether defendants presented a legitimate, non-retaliatory reason for terminating plaintiff.\nII.\nOnce a plaintiff has established a prima facie case, the employer must proffer a legitimate, non-retaliatory reason for firing the plaintiff. Wells v. N.C. Dep\u2019t of Corr., 152 N.C. App. 307, 317, 567 S.E.2d 803, 811 (2002). At that point, \u201c \u2018the burden [of production] shifts to the plaintiff to present evidence, raising a genuine issue of fact, that his [engagement in a protected activity] . . . [was] a substantial causative factor in the adverse employment action, or provide an excuse for not doing so.\u2019 \u201d Id. (citation omitted) (alterations in original).\nTh\u00fcs, even if we assume that plaintiff has established a prima facie case, we must determine whether defendant offered a legitimate, non-retaliatory reason to terminate plaintiff and whether plaintiff met her burden of production. Our review of the evidence reveals that defendant offered such a reason and plaintiff is unable to raise a genuine issue of material fact that the termination was a pretext for protected activity.\nThis Court has held that where a plaintiff acknowledges that an employer had \u201clegitimate explanations for the actions [plaintiff] alleged were retaliatory^]\u201d summary judgment in favor of the employer is appropriate. Hodge, 175 N.C. App. at 118, 622 S.E.2d at 707. The undisputed evidence shows that plaintiff committed a breach of confidentiality by disclosing patient records to Jones. Jones later attempted to use those records for personal, monetary gain. Plaintiff acknowledged in her deposition that she gave Jones the stack of documents. Moreover, when confronted by Parks regarding the disclosure of confidential patient information, plaintiff did not dispute the allegation and acknowledged that she also gave Jones a handwritten summary of the information. Plaintiff also admitted that she did not generate the information as part of her job. Indeed, she knew that part of her job description was to safeguard such information and that HIPAA made it illegal for her to access the information when it was not necessary for her job duties. She also conceded that it was not part of her job description to be concerned as to what Medicaid funds were owed WHD.\nIn addition to plaintiffs own remarks, defendants have presented evidence that terminating plaintiff due to the breach of confidentiality was appropriate. Harrington, from DHHS, characterized plaintiffs conduct as a gross violation of law such that any disciplinary action short of termination would have been unacceptable. Harrington also said that plaintiffs disclosure violated the ethical duty imposed on county health departments and was \u201ca severe breach of trust between the ARHS and its patients.\u201d Additionally, Curtis Dickson, the Director for Hertford County Public Health Authority, and Johnson, the former Regional Personnel Director for DHHS, both testified that plaintiffs actions were illegal and Johnson advised Parks that plaintiff committed a dismissible offense. Finally, the evidence shows that the breach of confidentiality was brought to Parks\u2019s attention by Patton, a third party with no knowledge of L\u2019s termination. This is not a case where defendants were creating a false paper trail in order to justify their termination of plaintiff on pretextual grounds.\nWe find additional support for our decision in Shoaf v. Kimberly-Clark Corp., 294 F. Supp. 2d 746 (M.D.N.C. 2003). In that case, the plaintiff filed an employment discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. \u00a7 2000e et seq. Id. at 749. The plaintiff admitted to disclosing information in violation of his confidentiality agreement with the defendant. Id. at 752. The Shoaf Court then granted summary judgment because the evidence presented showed that defendant \u201cfocused only upon Plaintiffs breach of his duties of confidentiality and loyalty owed to Defendant as a basis for their decision to discharge Plaintiff.\u201d Id. at 758 (footnote omitted). The same circumstances being presented here, we thus conclude that defendants have established a legitimate non-retaliatory reason for their adverse employment decision. Accordingly, the burden now shifts to plaintiff to establish that her engagement in protected activity was a substantial causative factor of her termination.\nIn order to raise a factual issue regarding pretext, \u201cthe plaintiff\u2019s 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\u2019s non-retaliatory motive.\u201d Wells, 152 N.C. App. at 317, 567 S.E.2d at 811. Plaintiff has failed to carry this burden.\nIn the instant case, the only direct evidence presented by plaintiff that defendants terminated her employment in retaliation for her opposition to L\u2019s release was a statement to L by Parks not to discuss his termination with anyone as it could cost them their jobs. That comment, however, was taken out of context. During L\u2019s and Parks\u2019s meeting together, L had requested a copy of his personnel file. At that point, Parks instructed L to go through appropriate channels for any information he needed because accessing such information through employees that did not have authorization to such information could cost them their jobs. L corroborates this during his deposition when he stated, in relation to the conversation he had with Parks, that: \u201cI know it was in reference to some personnel issues and that I should keep those things in confidence, and that it could possibly cause other people problems.\u201d This evidence fails to discredit defendants\u2019 legitimate, non-retaliatory reason to terminate plaintiff.\nPlaintiff argues that there was a close temporal proximity between her protected activity and her firing. This circumstantial evidence, plaintiff argues, is sufficient to prove retaliatory termination. In support of this proposition, plaintiff cites this Court\u2019s opinion in Caudill. In that case, the plaintiff was terminated \u201calmost immediately\u201d upon the defendant learning that the plaintiff was cooperating with the State Bureau of Investigation. Caudill, 129 N.C. App. at 655, 501 S.E.2d at 103. In this case, plaintiff was terminated ten weeks after her initial complaint and fourteen days after her last complaint regarding L\u2019s termination. More importantly, the plaintiff in Caudill forecasted evidence that she was performing her job satisfactorily up until the termination. Such is not the case here. As discussed above, defendants have produced substantial evidence that plaintiff was not performing her job satisfactorily because she had disclosed confidential information to Jones. Because plaintiff has not presented evidence that she was performing her job satisfactorily, she is unable to rely on the temporal proximity of her termination after her protected activity as sufficient circumstantial evidence to prove retaliatory termination. Accordingly, plaintiffs assignments of errors are rejected, and the trial court\u2019s grant of summary judgment is affirmed.\nIII.\nIn summary, we hold that plaintiff\u2019s conduct was not protected under the Whistleblower Act. Alternatively, we hold that plaintiff has failed to raise a factual issue as to whether defendants\u2019 termination of her employment was pretexual. Accordingly, the ruling of the trial court is affirmed.\nAffirmed.\nJudges McGEE and BRYANT concur.\n. In order to comply with the protective order entered by the trial court, ARHS employees whose confidential information is discussed are referenced by their last initial only.\n. The parties do not dispute the second element, as defendants terminated plaintiff\u2019s employment.\n. Plaintiffs continued reference to the termination of L as \u201cillegal\u201d does not, absent some support of that allegation in the record, make the termination unlawful.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Homthal, Riley, Ellis & Maland, L.L.R, by John D. Leidy, for plaintiff-appellant.", "Womble Carlyle Sandridge & Rice, PLLC, by James R. Morgan, Jr. and Mary Nell Craven, for defendant-appellees." ], "corrections": "", "head_matter": "TONDI HOLT, Plaintiff v. ALBEMARLE REGIONAL HEALTH SERVICES BOARD, and JERRY L. PARKS, in his official capacity as Health Director, Defendants\nNo. COA07-262\n(Filed 15 January 2008)\n1. Public Officers and Employees\u2014 retaliatory discharge\u2014 whistleblower action \u2014 conduct not protected\nSummary judgment was correctly granted for defendants in a whistleblower action alleging retaliatory discharge where plaintiff was not able to establish that her conduct was protected within the meaning of the Whistleblower Act. Plaintiff alleged protected activity in stating that she would testify truthfully if a dismissed employee brought litigation, but the dispute ultimately was an individual termination action that did not implicate broader matters of public policy.\n2. Public Officers and Employees\u2014 retaliatory discharge\u2014 whistleblower action \u2014 legitimate reason for discharge\nSummary judgment was properly granted in a whistleblower action where defendant offered a legitimate, nonretaliatory reason for plaintiff\u2019s discharge. Plaintiff, who worked for a regional health services board, committed a breach of confidentiality in disclosing patient records, and there was also evidence that termination was appropriate.\n3. Public Officers and Employees\u2014 retaliatory discharge\u2014 whistleblower action \u2014 no issue of pretext\nSummary judgment was properly granted in a whistleblower action for retaliatory discharge where, after defendants established a nonretaliatory reason for the discharge, plaintiff was not able to raise a factual issue of pretext.\nAppeal by plaintiff from an order entered 20 November 2006 by Judge Clifton W. Everett, Jr. in Pasquotank County Superior Court. Heard in the Court of Appeals 1 November 2007.\nHomthal, Riley, Ellis & Maland, L.L.R, by John D. Leidy, for plaintiff-appellant.\nWomble Carlyle Sandridge & Rice, PLLC, by James R. Morgan, Jr. and Mary Nell Craven, for defendant-appellees." }, "file_name": "0111-01", "first_page_order": 141, "last_page_order": 150 }