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Holland v. Harrison

Court of Appeals of North Carolina

August 1, 2017

ELIZABETH HOLLAND, Plaintiff,
v.
DONNIE HARRISON, in his official capacity as Wake County Sheriff, OBI UMESI, in his individual capacity, TONYA MINGGIA, in her individual capacity, and THE OHIO CASUALTY INSURANCE COMPANY, Defendants.

          Heard in the Court of Appeals 9 February 2017

         Appeal by plaintiff from order entered 13 May 2016 by Judge Paul C. Ridgeway in Wake County Superior Court No. 15 CVS 16906

          Hairston Lane, PA, by M. Brad Hill and James E. Hairston Jr., for plaintiff-appellant.

          Office of the Wake County Attorney, by Roger A. Askew and Claire H. Duff, and Office of the Wake County Sheriff, by Paul G. Gessner, for defendants-appellees.

          DAVIS, Judge.

         This case presents the issue of whether a nurse at a county jail has stated a valid First Amendment claim by alleging that she was fired because she voiced objections within the workplace to performing a medical procedure on a patient. Plaintiff Elizabeth Holland appeals from the trial court's order dismissing her free speech claim pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. Because we conclude that Holland's speech did not pertain to a matter of public concern so as to invoke First Amendment protections, we affirm.

         Factual and Procedural Background

         We have summarized below the allegations in Holland's complaint, which we take as true in reviewing the trial court's Rule 12(b)(6) order. See Feltman v. City of Wilson, 238 N.C.App. 246, 247, 767 S.E.2d 615, 617 (2014).

         In 2006, Holland began working as a nurse in the Wake County Detention Center. At all relevant times, she was supervised by Nurse Tonya Minggia and Dr. Obi Umesi.

         During the week of 6 May 2013, Holland was asked by a Detention Center employee to administer an antibiotic - vancomycin - to a patient through an IV in order to treat the patient's infection. This drug was required to be administered twice daily for a period of six weeks. Based upon her medical experience, Holland believed that vancomycin could not be safely administered through an IV and instead should be delivered with the aid of a pump device. Holland felt that administering the drug through an IV could put the patient's life at risk, potentially expose her to a claim of malpractice, and subject her to the loss of her nursing license.

         Holland expressed to Minggia her belief that the Detention Center lacked the proper equipment to safely administer the medicine. In response, Minggia informed Holland that the appropriate equipment to administer the drug would be procured.

         As of Friday, 10 May 2013, the pump had not been obtained. Holland reiterated her belief to Minggia that she could not safely administer the drug through an IV, but Minggia nevertheless instructed her to do so. Holland objected that following Minggia's directive would "jeopardize her career and the life of her patient." She also informed Minggia that because of the high patient-to-nurse ratio at the Detention Center, "administering the medication as requested could endanger the health and safety of the other patients that she was to monitor because she would have to spend the majority of her time administering the medication and could not monitor the other patients to which she was assigned."

         Holland contacted the physician's assistant who oversaw the Detention Center's medical facility and relayed her concerns about administering vancomycin through an IV. The physician's assistant told Holland that she had communicated with a nurse outside of the facility who agreed with Holland's position regarding the proper administration of the drug. After Holland's continued refusal to administer vancomycin to the patient through an IV, another nurse at the Detention Center agreed to do so.

         Holland was subsequently notified by the on-duty nurse supervisor that she was being removed from her normal assignment in the observation unit of the Detention Center and was instead to report the following Monday for an 11:00 a.m. to 7:00 p.m. shift in the intake unit. Holland objected to this transfer based upon her belief that it was in response to her refusal to administer the vancomycin in an unsafe manner. After receiving an email from Minggia confirming the new assignment, Holland sent an email on 11 May to Minggia, Holland's workers' compensation case manager, and the human resources department stating that she would not report to work in the new position until a medical opinion was provided by her workers' compensation healthcare provider that the new position was consistent with work restrictions previously imposed for Holland after she sustained a work-related injury.

         By the end of Sunday, 12 May, Holland had not received any response to her email. She did not report to work the following day but made multiple attempts to contact her case manager and the human resources department of the Sheriff's Office.[1] She eventually reached her case manager, who stated that Holland's 11 May email had been forwarded to the workers' compensation administrator. The case manager agreed with Holland that she should not accept the intake assignment until a medical review was completed.

         During a telephone call that afternoon, Minggia informed Holland that she should have reported to work for her new position in the intake unit at 11:00 that morning as directed. When Minggia asked Holland whether she would report to work the next day at 11:00 a.m., Holland responded that she would come to work after a 10:00 a.m. workers' compensation-related appointment but that she did not know when the appointment would end or whether her restrictions "would preclude her from performing certain duties under the new assignment." At that point, Minggia told Holland she was "no longer an employee of the Sheriff's [Office]" and was being "terminated because she did not show up for work [that morning]."

         After her appointment the following day, Holland informed the human resources department that she would, in fact, report to work in the new position, but she was told to stay home and await further communications from the Sheriff's Office. Holland received a letter by hand-delivery later that day stating that her employment was being terminated effective immediately.

         On 21 December 2015, Holland filed the present action in Wake County Superior Court against Sheriff Donnie Harrison, in his official capacity; Dr. Umesi, in his individual capacity; Minggia, in her individual capacity; and the Sheriff's Office's insurance carrier, the Ohio Casualty Insurance Company (collectively "Defendants"). In her complaint, Holland asserted (1) state law claims for wrongful discharge in violation of public policy, tortious interference with contract, and violation of her right to due process under the North Carolina Constitution; and (2) federal claims pursuant to 42 U.S.C. § 1983 for violation of her free speech and due process rights under the United States Constitution. In her complaint, Holland alleged that Minggia and Dr. Umesi had intentionally misled the Sheriff regarding the circumstances surrounding her failure to report to work on 13 May 2013 in order to induce him to dismiss Holland. She asserted that, in actuality, the reasons for their recommendation that Holland be dismissed were her objection to administering the vancomycin as well as prior disagreements between her and them about patient care.

         On 3 March 2016, Defendants filed a partial motion to dismiss pursuant to Rule 12(b)(6) in which they asserted that Holland had failed to state any valid claims upon which relief could be granted except for her state law wrongful discharge claim. Following a hearing before the Honorable Paul C. Ridgeway on 13 May 2016, the trial court issued an order granting in part and denying in part Defendants' motion. The court dismissed Holland's state and federal constitutional claims but declined to dismiss her claim for tortious interference with contract.[2] Holland filed a timely notice of appeal ...


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