Heard in the Court of Appeals 17 November 2014.
This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]
Appeal by Plaintiff from order entered 25 March 2014
by Judge Donald W. Stephens in Superior Court, Wake County.
Wake County. No. 13 CVS 03447.
Monteith & Rice, PLLC, by Charles E. Monteith, Jr. and Shelli Henderson Rice, for Plaintiff-Appellant.
Attorney General Roy Cooper, by Assistant Attorney General Tamika L. Henderson, for Defendants-Appellees.
McGEE, Chief Judge. Judges HUNTER, Robert C. and BELL concur.
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 front Provider Office of the prison (" the 25 June sleeping incident" ). Dr. Dunston went to the front Provider Office and saw another doctor enter and bump into Plaintiff; Plaintiff then opened his eyes. Dr. Dunston told Plaintiff that he had been sleeping and asked Plaintiff to come to her office. Dr. Dunston later explained to Plaintiff that " sleeping was inappropriate in the prison setting" and that it was a safety and security breach. Plaintiff did not deny that he was sleeping and instead stated: " No one was going to hurt me, I know the housekeeper, she is a patient of mine and I ask her how she is doing."
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 outlined 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:
Why should I get any advice from her[.] [S]he is an administrator, she is not a practicing physician. I am the man with the boots on the ground[.] I practice medicine, I do not need to get advice from her. . . . I will not take any clinical advice from her; I am not going to do that[.]"
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 letter, dated 23 July 2012. In that letter, Plaintiff accused Dr. Wilson of having " the audacity and courage to act out as a Master towards a 'Slave' only as a result of the treatment I had received from this administration since I joined the Department of Corrections about [six] months ago." Dr. Dunston also forwarded this letter up the chain of command to the EEO, which was received while the EEO was conducting its investigation into the 2 July letter.
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,
4. Participating in any action that would in any way seriously disrupt or disturb the normal operation of the agency, or any sub-unit of the Department of Correction or State government.
. . . .
16. . . . intimidation of fellow employees
. . . .
20. . . . engaging in undue familiarity with inmates
. . . .
28. Knowingly making false or malicious statements with intent to harm or destroy the reputation, authority, or official standing ...