Lenzer v. Flaherty

• Court: North Carolina Court of Appeals
• Writing for the Court: PARKER
• Citation: Lenzer v. Flaherty, 418 S.E.2d 276, 106 N.C.App. 496 (N.C. App. 1992)
• Decision Date: 07 July 1992
• Docket Number: No. 9014SC230,ARC-B,9014SC230
• Parties: Jeanne M. LENZER v. David T. FLAHERTY, In his official capacity as Secretary of the Department of Human Resources, Paul T. Kayye, Individually and in his official capacity as Director of the Division of Mental Health, Mental Retardation and Substance Abuse Services of the Department of Human Resources, Thomas Miriello, Individually and in his official capacity as Deputy Director for Alcohol and Drug Abuse Services of the Division of Mental Health, Mental Retardation and Substance Abuse Services Services of the Department of Human Resources, Michael F. Byrne, Individually and in his official capacity as Chief of the Employee Relations Section of the Department of Human Resources, Robert L. Baucom, Individually and in his official capacity as Director ofutner, and Harriet M. Harman, Individually and in her official capacity as Assistant Director ofutner.

Page 276

418 S.E.2d 276

106 N.C.App. 496

Jeanne M. LENZER v. David T. FLAHERTY, In his official capacity as Secretary of the Department of Human Resources, Paul T. Kayye Individually and in his official capacity as Director of the Division of Mental Health, Mental Retardation and Substance Abuse Services of the Department of Human Resources, Thomas Miriello, Individually and in his official capacity as Deputy Director for Alcohol and Drug Abuse Services of the Division of Mental Health, Mental Retardation and Substance Abuse Services [of the Department of Human Resources], Don Cummings, Individually and in his official capacity as Director of the Division of Personnel [Management] Services of the Department of Human Resources, Michael F. Byrne Individually and in his official capacity as Chief of the Employee Relations Section of the Department of Human Resources, Robert L. Baucom, Individually and in his official capacity as Director of ARC-Butner, and Harriet M Harman, Individually and in her official capacity as Assistant Director of ARC-Butner.

No. 9014SC230.

Court of Appeals of North Carolina.

July 7, 1992.

M. Travis Payne, Edelstein, Payne & Nelson, Raleigh, P. Lewis Pitts, Jr., Christic Institute South, Chapel Hill, for appellant.

Ann Reed, John R. Corne, Sp. Deputy Attys. Gen., Raleigh, for appellee.

O. William Faison and Reginald B. Gillespie, Jr., Faison & Brown, Durham, for defendants-appellees Baucom and Harman.

PARKER, Judge.

In this action alleging unlawful separation from employment, plaintiff, a former physician's assistant ("PA") at the Alcohol Rehabilitation Center in Butner, North Carolina ("ARC"), predicates defendants' liability on violation of her free speech rights under the United States and North Carolina Constitutions, civil conspiracy, tortious interference with economic relations, wrongful discharge and harassment in violation of N.C.G.S. § 122C-66(b). N.C.G.S. § 122C-66 makes it a crime to knowingly injure mentally or emotionally disabled patients in State facilities and provides guidelines for the reporting of actual or suspected abuse or exploitation of such patients.

Plaintiff contends she was fired for reporting suspected patient abuse at the ARC to authorities in the State Bureau of Investigation ("SBI") and the State Department of Human Resources ("DHR") in Raleigh. Plaintiff sues six State employees, in both their individual and official capacities, for compensatory and punitive damages. She sues the Secretary of DHR in his official capacity only, seeking reinstatement and protection for other employees or patients reporting suspected abuse.

The six State employees ("defendant employees") held the following positions at the time of plaintiff's discharge: (i) Dr. Harman, Lenzer's primary supervisor, was a Physician III at the ARC; (ii) Dr. Baucom, plaintiff's backup supervisor, was director of the facility; (iii) Dr. Kayye was director of DHR's Division of Mental Health, Mental Retardation and Substance Abuse Services ("Division"); (iv) Miriello was deputy director for Alcohol and Drug Abuse Services in the Division; (v) Cummings was director of the DHR Division of Personnel Management Services; and (vi) Byrne was chief of the Employee Relations Section in Cummings' division. Defendant employees became involved with plaintiff under the following circumstances.

Plaintiff began working at the ARC in January 1983. In late January or early February 1985 one of plaintiff's co-workers, a male health care technician ("Attendant N"), allegedly told plaintiff he was having homosexual relations with a patient who had been discharged from the facility. Attendant N also told plaintiff these relations had occurred almost nightly while the patient was still a resident at the facility.

Plaintiff reported this information about Attendant N to Dr. Harman, her immediate supervisor, and to Dr. Baucom. Dr. Baucom consulted the client advocate to determine whom to contact and how to proceed. The client advocate let plaintiff know her allegations were being investigated and Dr. Baucom would involve the SBI. Plaintiff also contacted the SBI on her own. According to plaintiff, the SBI indicated it was the appropriate agency to investigate plaintiff's dual concerns about patient exploitation and the operation of a male prostitution ring in Raleigh, to which she believed Attendant N might be referring ex-clients from the ARC.

Attendant N denied any misconduct when confronted on 8 March 1985. The patient also denied sexual relations with the attendant. Management gave Attendant N a warning for breaching confidentiality by giving out a male patient's name, without the patient's permission, as a referral to a modeling agency. Defendant Byrne explained the decision to give Attendant N a warning as follows.

[T]he reason that particular course of action was taken was due to the fact that neither the internal investigation of the allegations of his misconduct with patients, nor the SBI's investigation of the same incidents generated any substantial information sufficient to justify just cause for taking a more stringent kind of disciplinary action.

In late February 1986 a former patient phoned the ARC to complain of sexual exploitation in connection with the same attendant and a man introduced to the patient by Attendant N. The patient was readmitted to the ARC. Dr. Baucom again involved the client advocate, the SBI and public safety officers in interviews with patients and staff concerning this case. Plaintiff was questioned but had no first-hand knowledge of the case. In March 1986 Dr. Baucom sent defendants Miriello and Byrne written summaries of the status of these investigations, at Miriello's request. The record contains a handwritten statement by the victim in the 1986 case stating he had been threatened by Attendant N's friend, Attendant N had made sexual overtures to him, and Attendant N had told this patient about getting in trouble over having had sex with another patient until that patient had the "good sense" to remain silent. The 1986 victim confirmed these statements in a taped oral interview with Dr. Baucom.

In March 1986 plaintiff reported her general concerns about this second case involving Attendant N directly to the SBI. In mid-April plaintiff also called Dr. Kayye, the director of the Division, and then spoke to Miriello, alleging that the ARC administration might be covering up such incidents and that she feared reprisal for her reporting possible cases of abuse. Plaintiff furnished a letter to Miriello at his request. Miriello shared that letter with Cummings and Byrne. A few days later Cummings told plaintiff, who called him on 21 April to say she was afraid of being disciplined for reporting to the SBI, that DHR was aware of the allegations and investigations at the ARC.

Dr. Kayye believed plaintiff was falsely accusing her supervisors of covering up abuse but recognized plaintiff felt she was being harassed on account of her allegations. The other physician at the ARC, Dr. Shaver, viewed plaintiff's allegations of cover-up seriously.

I admired [plaintiff's] sense of conscience and her concern, and I had no reason to distrust her personal evaluation of the situation. I admired her courage and her commitment to this kind of principle.

Dr. Shaver noticed that plaintiff's treatment by staff and supervisors changed after plaintiff began making these reports.

DHR employees held several meetings to discuss plaintiff's perceptions and allegations. By the end of April, Cummings and Byrne had reviewed plaintiff's personnel file. Finding no evidence of any progressive discipline in that file, Cummings and Byrne concluded plaintiff had not been subjected to retaliation. Dr. Kayye, Cummings and Byrne all understood that physicians could have PAs removed from their medical licenses. Dr. Kayye, in fact, strongly expressed his conviction that a physician needed to be comfortable with any medical personnel practicing on the physician's license.

On 12 May 1986 Dr. Baucom learned for the first time from Dr. Kayye of plaintiff's phone calls to DHR about the second case involving Attendant N. According to Dr. Baucom, Dr. Kayye told him that Baucom "needed to go ahead and get rid of" plaintiff but Dr. Kayye did not give a reason. The sworn testimony is also to the effect that Dr. Baucom and Miriello were shocked at Dr. Kayye's suggestion. According to Byrne, Dr. Kayye used even more colorful language, asking Dr. Baucom if he had yet fired that bitch or gotten the bitch off his medical license.

On 16 May Dr. Baucom, Byrne and Miriello met at the ARC to discuss the handling of plaintiff's allegations and plaintiff's job performance. At that meeting Dr. Baucom learned for the first time about plaintiff's contacts with the SBI, her written report to Miriello and her allegations that the administration was covering up abuse and that Dr. Harman had started holding non-disciplinary, supervisory sessions with plaintiff in order to harass plaintiff into keeping quiet. According to Dr. Baucom, the 16 May meeting focused "[p]retty much [on] what was appropriate action to take with regards to [Attendant N] and also in regards to [plaintiff]." At this meeting Byrne again mentioned a physician's option of withdrawing supervision from a PA. Dr. Baucom was aware that plaintiff had never received any formal discipline, as were the Raleigh officials. The meeting on 16 May lasted at least three hours.

As a result of that meeting, Dr. Baucom and Dr. Harman notified the State Board of Medical Examiners by letter on 19 May of their withdrawal of supervision from plaintiff, effective 20 May 1986. The letter stated no reason for the physicians' decision to withdraw supervision. Before 20 May DHR officials also informed the Secretary of DHR of the planned disposition of plaintiff's case. On 20 May Dr. Baucom and Dr. Harman met with plaintiff to inform her of the physicians' action with the ...