Kennedy v. Guilford Technical Community College

• Decision Date: 19 July 1994
• Docket Number: No. 9318SC444,9318SC444
• Citation: 115 N.C.App. 581,448 S.E.2d 280
• Parties: , 94 Ed. Law Rep. 632, 9 IER Cases 1722 Katherine C. KENNEDY, Plaintiff, v. GUILFORD TECHNICAL COMMUNITY COLLEGE, Defendant.
• Court: North Carolina Court of Appeals

Page 280

448 S.E.2d 280

115 N.C.App. 581, 94 Ed. Law Rep. 632,

9 IER Cases 1722

Katherine C. KENNEDY, Plaintiff, v. GUILFORD TECHNICAL COMMUNITY COLLEGE, Defendant.

No. 9318SC444.

Court of Appeals of North Carolina.

July 19, 1994.

Smith, Follin & James by Norman B. Smith and Margaret Rowlett, Greensboro, for plaintiff-appellant.

Hendrick, Zotian, Bennett & Blancato by William A. Blancato, Winston-Salem, for defendant-appellee.

JOHN, Judge.

Plaintiff-employee filed an amended complaint in this action on 16 April 1992, claiming retaliation in violation of N.C.Gen.Stat. § 126-85 by defendant-employer following her reports of fellow-employee misuse and misappropriation of audio-visual (AV) equipment. In sum, plaintiff's complaint stated that after she informed supervisory and investigatory personnel at defendant Guilford Technical Community College (GTCC) of employee personal use of State equipment and of State property missing from inventory, she was transferred from her position as "Audio-Visual Secretary" (AV secretary) to the position of "Library Public and Technical Services Secretary." Plaintiff initiated her suit after unsuccessfully seeking reinstatement as AV secretary by means of an internal grievance procedure pursued with GTCC in the fall of 1991. From entry of summary judgment in favor of defendant on 12 March 1993, plaintiff appeals. We affirm the trial court.

This action was brought under North Carolina's "whistleblower" statutes, N.C.Gen.Stat. §§ 126-84 (1993), and 126-85 (1993), which provide in pertinent part as follows:

§ 126-84. Statement of policy.

It is the policy of this State that State employees shall be encouraged to report verbally or in writing to their supervisor, department head, or other appropriate authority, evidence of activity by a State agency or State employee constituting:

(1) A violation of State or federal law, rule or regulation;

(2) Fraud;

(3) Misappropriation of State resources; or

(4) Substantial and specific danger to the public health and safety.

§ 126-85. Protection from retaliation.

(a) No head of any State department, agency or institution or other State employee exercising supervisory authority shall discharge, threaten or otherwise discriminate against a State employee regarding the State employee's compensation, terms, conditions, location, or privileges of employment because the State employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, any activity described in G.S. 126-84, unless the State employee knows or has reason to believe that the report is inaccurate.

(Emphasis added).

A court ruling upon a motion for summary judgment must view all the evidence in the light most favorable to the nonmovant (here, plaintiff), see, e.g., Durham v. Vine, 40 N.C.App. 564, 566, 253 S.E.2d 316, 318-19 (1979), overruled in part on other grounds, Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992), accepting all her asserted facts as true, Railway Co. v. Werner Industries, 286 N.C. 89, 98, 209 S.E.2d 734, 739 (1974) (citation omitted), and drawing all reasonable inferences in her favor. Whitley v. Cubberly, 24 N.C.App. 204, 207, 210 S.E.2d 289, 291 (1974) (citations omitted). However, once the moving party presents an adequately supported motion, the opposing party must come forward with specific facts (not mere allegations or speculation) that controvert the facts set forth in the movant's evidentiary forecast. Roumillat, 331 N.C. at 63-64, 414 S.E.2d at 342; Moore v. Fieldcrest Mills, 36 N.C.App. 350, 353, 244 S.E.2d 208, 210 (1978), aff'd, 296 N.C. 467, 251 S.E.2d 419 (1979); see also N.C.R.Civ.P. 56(e) (1990), which provides in part:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

(Emphasis added).

Both parties correctly point out that our courts have issued no published decisions interpreting or applying G.S. §§ 126-84 and 126-85. Thus the question of whether the general principles just enunciated are applicable to actions commenced under these statutes has not been definitively answered. However, the parties direct our attention to related cases involving discrimination and retaliation claims brought under 42 U.S.C. §§ 2000e et seq. (Title VII) and 42 U.S.C. § 1983 (Section 1983) and suggest our analysis of the case sub judice should follow that utilized by courts in considering Title VII and Section 1983 claims. Noting that the procedures adopted by courts in these cases closely parallel the customary summary judgment analysis set out above, we elect for purposes of this appeal to adopt the parties' recommended reasoning.

Plaintiff relies upon a decision from the federal court for the principle that a prima facie case of retaliation (based upon a violation of first amendment rights) in "whistle-blowing" circumstances is properly considered composed of the following elements: "(1) [plaintiff] engaged in protected activity, (2) followed by an adverse employment action, and (3) that the protected conduct was a substantial or motivating factor in the adverse action." McCauley v. Greensboro City Bd. of Educ., 714 F.Supp. 146, 151 (M.D.N.C.1987) (citations omitted) (plaintiff claimed she was retaliated against, in violation of Title VII and 42 U.S.C. §§ 1981 and 1983, for filing race and sex discrimination charges with the E.E.O.C.). The McCauley court then observed that although "[t]he analysis for retaliatory acts which violate ... Title VII is similar, ... the Plaintiff must prove 'but for' instead of 'motivating factor' causation in her prima facie case." Id. (citation omitted).

The case cited by plaintiff continues by stating that upon presentation of a prima facie case of retaliation based upon first amendment rights, "the burden shifts to the defendant to show that it would have taken the same action even in the absence of the protected conduct." Id. at 153. Stated otherwise, "the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse [employment] action." Melchi v. Burns Int'l Sec. Servs. Inc., 597 F.Supp. 575, 582 (E.D.Mich.1984) (construing Michigan's "Whistleblowers' Protection Act"); see also Heerdink v. Amoco Oil Co., 919 F.2d 1256, 1260 (7th Cir.1990), cert. denied, 501 U.S. 1217, 111 S.Ct. 2826, 115 L.Ed.2d 996 (1991). An articulated reason is not "legitimate," and so does not overcome the presumption of discrimination arising from plaintiff's prima facie showing, unless it has "a rational connection with the business goal of securing a competent and trustworthy work force." Harris v. Marsh, 679 F.Supp. 1204, 1285 (E.D.N.C.1987), aff'd in part, rev'd in part on other grounds by Blue v. U.S. Dept. of Army, 914 F.2d 525 (4th Cir.1990).

Finally, if the defendant-employer meets its burden, the plaintiff must then come forward with evidence to show "that the legitimate reason was a mere pretext for the retaliatory action." Melchi, 597 F.Supp. at 582 (relying on language from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668, 679 (1973)); thus, "a plaintiff retains the ultimate burden of proving that the [adverse employment action] would not have occurred had there been no protected activity" engaged in by the plaintiff. Id. at 583. Courts have referred to this as requiring a showing by plaintiff of "but-for" causation, id., creating an affirmative obligation on plaintiff's part to produce evidence countering that produced by the employer on its motion for summary judgment. Furthermore, if at that point "plaintiff has no evidence whatsoever of pretext, the continued litigation of plaintiff's case can be frivolous despite the existence of a prima facie case." Blue v. U.S. Dept. of Army, 914 F.2d 525, 536 (4th Cir.1990) (citation omitted).

We begin our analysis of the case sub judice by assuming arguendo (but explicitly not deciding) that when viewed in the light most favorable to plaintiff, the evidence before the trial court established a prima facie case of discrimination with respect to conditions of plaintiff's employment in retaliation for having engaged in the protected activity of reporting employee misuse or misappropriation of State property. In this context, however, we note parenthetically defendant's strong arguments against consideration of plaintiff's transfer to a secretarial position in the Learning Resources Center's library as "discrimination" with respect to her compensation, terms, conditions, location or privileges of employment. See G.S. § 126-85. GTCC emphasizes uncontested evidence demonstrating that plaintiff's transfer had no effect on her hours, her wages, her seniority, or her privileges and benefits, and only minimal impact on her location (requiring a move from third to first floor), and that the written job description for her new secretarial position was virtually identical to the description for her former one.

Defendant further counters plaintiff's suggestion that the transfer interrupted a "reclassification" of her former job which had been in progress for some time by pointing out she was unable to offer any evidence supporting that assertion. For instance, defendant continues, she presented no factual information establishing that her desired reclassification had been approved by the appropriate personnel, that funding for it was or would ever be available, or that being transferred would necessarily have an adverse effect upon any decision made about the reclassification.

Furthermore, plaintiff stated she was primarily dissatisfied with her new job because sh...