Hwang v. Cairns

• Decision Date: 17 January 2023
• Docket Number: COA22-31
• Citation: 2023 NCCOA 10
• Parties: JAMES HWANG, MD, Plaintiff, v. BRUCE CAIRNS, THE UNIVERSITY OF NORTH CAROLINA, THE UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL and UNIVERSITY OF NORTH CAROLINA HEALTH CARE SYSTEM, Defendants.
• Court: North Carolina Court of Appeals

2023-NCCOA-10

JAMES HWANG, MD, Plaintiff, v. BRUCE CAIRNS, THE UNIVERSITY OF NORTH CAROLINA, THE UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL and UNIVERSITY OF NORTH CAROLINA HEALTH CARE SYSTEM, Defendants.

No. COA22-31

Court of Appeals of North Carolina

January 17, 2023

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

Heard in the Court of Appeals 2 November 2022.

Appeal by plaintiff from orders entered 6 August 2021 by Judge John M. Dunlow in Durham County Superior Court. Cross-appeal by defendants from order entered 4 April 2019 by Judge Lora Cubbage in Durham County Superior Court. Durham County, No 18 CVS 2942

Zaytoun Ballew &Taylor, PLLC, by John R. Taylor, Robert E. Zaytoun, Matthew D. Ballew, and Clare F. Kurdys, for plaintiff-appellant/cross-appellee.

Hartzog Law Group LLP, by Dan M. Hartzog and Katie Weaver Hartzog, for defendant-appellee/cross-appellant Bruce Cairns.

Marla S. Bowman, Laura E. Dean, and Brooks, Pierce, McLendon Humphrey &Leonard, L.L.P., by Eric M. David, for defendants-appellees/cross-appellants the University of North Carolina and the University of North Carolina at Chapel Hill.

Attorney General Joshua H. Stein, by Assistant Attorney General Robert T. Broughton, and Wyrick Robbins Yates &Ponton LLP, by T. Cullen Stafford

and Michael D. DeFrank, for defendant-appellee/cross-appellant University of North Carolina Health Care System.

ZACHARY, Judge.

¶ 1 Plaintiff James Hwang, M.D., appeals from the trial court's 6 August 2021 orders granting summary judgment in favor of the University of North Carolina and the University of North Carolina at Chapel Hill ("the University"), University of North Carolina Health Care System ("UNC-HCS"), and Bruce Cairns, M.D. ("Cairns") (collectively, "Defendants"). Plaintiff also appeals from the trial court's 6 August 2021 order dismissing as moot Plaintiff's motion for leave to file his second amended complaint. Lastly, Defendants cross-appeal from the trial court's 4 April 2019 order denying their motions to dismiss Plaintiff's amended complaint pursuant to Rule 12 of the North Carolina Rules of Civil Procedure.

¶ 2 After careful review, we affirm the 6 August 2021 orders. Because we affirm the 6 August 2021 orders granting Defendants' motions for summary judgment, we dismiss Defendants' cross-appeal as moot.

I. Background

¶ 3 Plaintiff is a physician and critical care surgeon. In June 2010, the University appointed Plaintiff as an "Assistant Professor in the tenure track in the Department of Surgery, Burn Center[,]" and in September 2014, and again in February 2017, it reappointed Plaintiff as a "Clinical Assistant Professor in the Department of Surgery at the University[.]" Plaintiff practiced medicine in the field of burn surgery at a hospital operated by UNC-HCS in Orange County, North Carolina. Cairns, who was the Division Chief of Burns in the Department of Surgery and the Medical Director of the Burn Center at the time, supervised Plaintiff.

¶ 4 During Plaintiff's tenure at the Burn Center, he experienced difficulties working with Cairns. Allegedly, "Cairns would regularly yell at Plaintiff in public and in front of other treatment providers without valid justification." Cairns also allegedly "engaged in similar harassing and abusive conduct to other physicians, physician's assistants, nurses and other staff members at the Burn Center throughout Plaintiff's entire term of employment." In light of these issues, Plaintiff accepted a position with the University of Alabama at Birmingham in February 2017. His last day of employment at the Burn Center was 30 June 2017.

¶ 5 Upon learning of Plaintiff's anticipated departure, three of Plaintiff's colleagues organized a party to celebrate Plaintiff's work at the Burn Center and to wish him well on his next endeavor. The party organizers emailed UNC-HCS and the University employees an electronic invitation to the going-away party, with the subject line: "Hwang's A Big Boy Now! Come Wish Him Good Luck!!"

¶ 6 The party took place on 11 June 2017 in a private room at the Top of the Hill Restaurant &Brewery in Chapel Hill. Some of the party's decorations included a poster of Plaintiff's head photoshopped onto the squatting body of a person wearing thong underwear, as well as other posters with Plaintiff's head photoshopped onto the bodies of shirtless men. The party organizers also hired a male stripper to perform "[a]s an innocent joke[.]" The stripper removed his pants and shirt, and danced with some of the participants.

¶ 7 Dr. Shiara Ortiz-Pujols, a research fellow in the Burn Center in 2017, observed photographs of the party on Facebook in her cubicle the following morning. Dr. Ortiz-Pujols did not attend the going-away party, and she "found [the photographs] to be distasteful and inappropriate." She described one of the photographs depicting "a gentleman in what appeared to be chaps[,]" another showing "what appeared to be a cutout of [Plaintiff] partially unclothed and making an odd facial expression[,]" and "a photo appearing to show [Plaintiff] touching another employee's breasts." After looking at the photographs "one time for a one-minute to two-minute period[,]" she sent a text message to Dr. Samuel Jones, one of Dr. Ortiz-Pujols's supervisors at the Burn Center, expressing her concern. Dr. Ortiz-Pujols also discussed the photographs with a colleague at her cubicle that morning; Cairns walked by her cubicle during this conversation.

¶ 8 Cairns and Dr. Ortiz-Pujols then privately discussed the photographs from the party. Dr. Ortiz-Pujols told Cairns-who also did not attend the party-that she "had seen a photo appearing to show [Plaintiff] touching another employee's breasts[,]" as well as a photograph "showing what appeared to be a cutout of [Plaintiff] partially unclothed and making an odd facial expression." Cairns noticed that "Dr. Ortiz-Pujols was clearly uncomfortable" and "distressed[.]" He asked Dr. Ortiz-Pujols who she believed Plaintiff was grabbing in one of the photographs, and Dr. Ortiz-Pujols reported that "it was one of the [operating room] nurses."

¶ 9 As one of Dr. Ortiz-Pujols's supervisors, Cairns felt "an obligation to report" what Dr. Ortiz-Pujols had seen to his supervisor, Dr. Melinda Kibbe, the Chair of the Department of Surgery. Cairns thus relayed Dr. Ortiz-Pujols's concerns to Dr. Kibbe shortly after his conversation with Dr. Ortiz-Pujols. Dr. Kibbe asked to speak with Dr. Ortiz-Pujols. After Cairns brought Dr. Ortiz-Pujols into Dr. Kibbe's office, the three of them discussed the photographs. Dr. Kibbe then asked Cairns to find the photographs so that she could review them, but the photographs had already been removed from Facebook by the time Cairns attempted to locate them.

¶ 10 Following her conversation with Cairns and Dr. Ortiz-Pujols, Dr. Kibbe reported the allegations to Dr. Harvey Lineberry, who held joint appointments as the University's "associate dean for the School of Medicine for human resources and as vice president for HR coordination with" UNC-HCS. Dr. Lineberry decided to initiate an investigation based upon Dr. Kibbe's report. On 23 June 2017, representatives from the University and UNC-HCS jointly began the investigation into the party and Plaintiff's actions. Because Plaintiff's last day at the Burn Center was 30 June 2017, Dr. Kibbe felt that "it [wa]s [her] duty to withhold [Plaintiff's] incentive comp[ensation]" of $63,545.00 until the investigation into Dr. Ortiz-Pujols's allegations had concluded.

¶ 11 On 9 November 2017, Dr. Kibbe received the final report from the investigation, which concluded that Plaintiff did not violate any policies at his goingaway party on 11 June 2017. The investigators interviewed the party organizers and Plaintiff, all of whom "adamantly denied" the existence of the photographs and any unprofessional behavior at the party. Consequently, the investigators concluded that Plaintiff did not violate the applicable disruptive and inappropriate behavior policy, ADMIN 204. The day after Dr. Kibbe received the report, she authorized the payment of Plaintiff's incentive compensation. On or around 7 December 2017, Plaintiff received his incentive compensation of $63,545.00.

¶ 12 On 30 May 2018, Plaintiff filed a complaint in Durham County Superior Court against Defendants, arising out of Defendants' respective roles in the investigation into the allegations against Plaintiff and the temporary withholding of his incentive compensation. Plaintiff filed an amended complaint on 8 November 2018, asserting against the University and UNC-HCS claims of (1) breach of contract and (2) breach of implied covenant of good faith and fair dealing. Plaintiff asserted against Cairns claims of (1) interference with existing contractual duties, (2) slander per se, and (3) slander per quod; he further asserted that Cairns was "not entitled to the defense of public official immunity[.]" Plaintiff sought punitive damages from Cairns, and he alleged that Defendants were jointly and severally liable.

¶ 13 On 7 December 2018, UNC-HCS filed a motion to dismiss Plaintiff's amended complaint pursuant to Rule 12(b)(1), 12(b)(2), and 12(b)(6) of the North Carolina Rules of Civil Procedure. The University and Cairns jointly filed a motion to dismiss the amended complaint on the same grounds on 12 December 2018. After a hearing on 11 March 2019, the trial court denied Defendants' motions. In an order entered on 4 April 2019, the court noted that "[n]othing in this [c]ourt's order precludes Defendants from developing...