United States District Court, W.D. North Carolina, Charlotte Division
ORDER AND NOTICE OF HEARING
D. Whitney Chief United States District Judge.
MATTER is before the Court on Defendant's Motion for
Summary Judgment, (Doc. No. 24), filed January 7,
2019. Plaintiff responded in objection to the
motion on January 28, 2019, and Defendant submitted a reply
brief on February 4, 2019. This matter is now ripe for
consideration. The Court finds that given the arguments of
the parties and the proximity to trial, a hearing is not
necessary and would not aid the Court in reaching its
decision on this record. For the reasons below, the Court
GRANTS IN PART and DENIES IN PART Defendant's motion.
Defendant moves for summary judgment on Plaintiff's
remaining three causes of action: 1) claim for violation of
42 U.S.C. § 1983 based on allegations that during
Plaintiff's employment with Defendant, she was retaliated
against for exercising her free speech rights under the U.S.
Constitution; (2) related claim for violation of the North
Carolina Constitution based on allegations of free speech
retaliation; and 3) claim for violation of the North Carolina
Whistleblower Protection Act.
Court first turns to Plaintiff's claims under the United
States Constitution and the North Carolina
Constitution. After reviewing the pleadings, proffered
evidence, and applicable law, the Court finds Plaintiff has
made a sufficient, albeit minimal, evidentiary showing that a
question of fact exists to resolve these claims. Moreover,
Defendant has failed to demonstrate it is entitled to
judgment as a matter of law on these claims. The law on these
claims is well-settled:
“Protection of the public interest in having debate on
matters of public importance is at the heart of the First
Amendment.” McVey v. Stacy, 157 F.3d 271, 277
(4th Cir. 1998) (citing Pickering v. Bd. of Educ.,
391 U.S. 563, 573, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)).
To resolve Plaintiff's appeal, we start by considering
the First Amendment rights of public employees. Public
employees do not “relinquish First Amendment rights to
comment on matters of public interest by virtue of government
employment.” Connick, 461 U.S. at 140, 103
S.Ct. 1684. To the contrary, the Supreme Court has long
that public employees are often the members of the community
who are likely to have informed opinions as to the operations
of their public employers, operations which are of
substantial concern to the public. Were they not able to
speak on these matters, the community would be deprived of
informed opinions on important public issues.
City of San Diego v. Roe, 543 U.S. 77, 82, 125 S.Ct.
521, 160 L.Ed.2d 410 (2004) (per curiam) (citing
Pickering, 391 U.S. at 572, 88 S.Ct. 1731). To that
end, the Supreme Court has repeatedly “underscored the
‘considerable value' of ‘encouraging, rather
than inhibiting, speech by public employees. For government
employees are often in the best position to know what ails
the agencies for which they work.'” Hunter v.
Town of Mocksville, 789 F.3d 389, 396 (4th Cir. 2015)
(quoting Lane v. Franks, ___U.S.___, 134 S.Ct. 2369,
2377, 189 L.Ed.2d 312 (2014)). As such, we do not take
lightly “[o]ur responsibility ... to ensure that
citizens are not deprived of fundamental rights by virtue of
working for the government.” Connick, 461 U.S.
at 147, 103 S.Ct. 1684.
“That being said, precedent makes clear that courts
must also consider ‘the government's countervailing
interest in controlling the operation of its
workplaces.'” Hunter, 789 F.3d at 397
(quoting Lane, 134 S.Ct. at 2377). Just as there is
a “public interest in having free and unhindered debate
on matters of public importance, ” Pickering,
391 U.S. at 573, 88 S.Ct. 1731, “[t]he efficient
functioning of government offices is a paramount public
interest, ” Robinson v. Balog, 160 F.3d 183,
189 (4th Cir. 1998). Therefore, a public employee “by
necessity must accept certain limitations on his or her
freedom.” Garcetti v. Ceballos, 547 U.S. 410,
418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). In particular,
under the balancing test developed by the Supreme Court in
Pickering and Connick, “the First
Amendment does not protect public employees when their speech
interests are outweighed by the government's interest in
providing efficient and effective services to the
public.” Lawson v. Union Cty. Clerk of Court,
828 F.3d 239, 247 (4th Cir. 2016).
Regarding Plaintiff's retaliation claim, “a public
employer contravenes a public employee's First Amendment
rights when it discharges . . . ‘[the] employee . . .
based on the exercise of' that employee's free speech
rights.” Ridpath v. Bd. of Governors Marshall
Univ., 447 F.3d 292, 316 (4th Cir. 2006) (alteration in
original) (quoting Suarez Corp. Indus. v. McGraw,
202 F.3d 676, 686 (4th Cir. 2000)). To state a claim under
the First Amendment for retaliatory discharge, a plaintiff
must satisfy the three-prong test set forth in McVey v.
Stacy, 157 F.3d 271 (4th Cir. 1998). In particular, the
plaintiff must show: (1) that he was a “public employee
... speaking as a citizen upon a matter of public concern
[rather than] as an employee about a matter of personal
interest;” (2) that his “interest in speaking
upon the matter of public concern outweighed the
government's interest in providing effective and
efficient services to the public;” and (3) that his
“speech was a substantial factor in the employer's
termination decision.” 157 F.3d at 277-78.
Grutzmacher v. Howard Cty., 851 F.3d 332, 341-42
(4th Cir.), cert. denied sub nom. Buker v.
Howard Cty., Md., 138 S.Ct. 171, 199 L.Ed.2d 42 (2017).
the speech is protected by the First Amendment is a question
of law for the Court, but whether it was a substantial factor
in the employer's decision is a question of fact for a
jury. Lane v. Anderson, 660 Fed.Appx. 185, 191 (4th
Cir. 2016). As an initial matter, the Court finds the
evidence shows Plaintiff engaged in protected speech by
speaking as a citizen on a matter of public concern.
Plaintiff, a nurse licensed by the North Carolina Board of
Nursing, had information on matters of public concern,
including the handling and care of patient medical records,
and notified various levels of management about her concerns
related to patient medical records not properly being stored
or processed, potentially the detriment of the health and
welfare of citizens. Defendant contends Plaintiff had other
“motivations”-largely to complain about her
personal conditions of employment-in expressing her concerns;
however, the Court finds such argument unpersuasive here in
light of the full record before the Court.
the other elements of these claims, a review of the
parties' summary of evidence and facts make clear a
ruling on summary judgment would require a determination as
to credibility and weight of the evidence, which is not
appropriate at this stage. Accordingly, summary judgment for
Defendant on Plaintiff's free speech claims is denied.
These claims shall be resolved by a jury during the
Court's next trial term.
Plaintiff's third claim, the Court finds that Defendant
is entitled to summary judgment on Plaintiff's claim for
violation of the North Carolina Whistleblower Protection Act
for the reasons stated in Defendant's Memorandum in
Support of its Motion for Summary Judgment as to the
applicability of the statute upon which Plaintiff seeks
relief,  as well as its reply brief. (Docs. Nos.
25, 33.) Defendant submitted uncontroverted evidence to show
Defendant County created a consolidated human services agency
to carry out the functions of the local health department,
the department of social services, and the area mental health
authority. (Doc. No. 25-4.) Accordingly, as a matter of law,
Plaintiff fails to qualify as a state employee or otherwise
meet the statutory requirements to make the Act applicable to
her. See N.C. Gen. Stat. Ann. § 126-5
(“An employee of a consolidated county human services
agency created pursuant to G.S. 153A-77(b) is not ...