Privette v. University of North Carolina at Chapel Hill

• Decision Date: 07 November 1989
• Docket Number: No. 8815SC1217,8815SC1217
• Citation: 385 S.E.2d 185,96 N.C.App. 124
• Court: North Carolina Court of Appeals
• Parties: , 56 Ed. Law Rep. 1317 Thomas H. PRIVETTE v. UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, David S. Janowski, in his individual and official capacities, and Amir S. Resvani, in his individual and official capacities.

Page 185

385 S.E.2d 185

96 N.C.App. 124, 56 Ed. Law Rep. 1317

Thomas H. PRIVETTE v. UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, David S.

Janowski, in his individual and official

capacities, and Amir S. Resvani, in his

individual and official capacities.

No. 8815SC1217.

Court of Appeals of North Carolina.

Nov. 7, 1989.

Faison & Brown by Charles Gordon Brown and John C. Schafer, Durham, for plaintiff-appellant.

Lacy H. Thornburg, Atty. Gen. by Edwin M. Speas, Jr., Sp. Deputy Atty. Gen., Raleigh, for the State.

GREENE, Judge.

Plaintiff (hereafter "Privette" or "plaintiff") appeals the dismissal of his complaint in which he asserted multiple claims allegedly arising out of his discharge from employment by defendants. Defendants are the University of North Carolina at Chapel Hill (UNC), Dr. David S. Janowski [sic] ("Janowsky"), individually and officially, and Dr. Amir S. Resvani ("Resvani"), individually and officially.

The facts, as alleged in the complaint, reveal that Privette in January 1986 was employed as "research technician for the Lab at the University's Center for Alcoholic Studies. His duties involved performing scientific experiments under the direction of Dr. R.D. Myers" (hereafter "Myers"). While Privette "reported directly to Dr. Myers concerning the scientific aspect of his work," other research in the Lab was supervised by Resvani who also "had responsibility for some administrative aspects of the Lab." In early 1987, the defendants "began a pattern of harrassment [sic] against Privette because of his association with Dr. Myers." The "Defendants encouraged the research technicians under Rezvani's [sic] supervision to make false accusations against Dr. Myers and, because of Privette's association with Dr. Myers, also against Privette."

The complaint further alleges that:

In retaliation for Privette's continued association with Dr. Myers and his initiation of the grievance procedure concerning the Defendants' harassment, the Defendants conspired to terminate Privette's employment with the University, prevent him from obtaining employment with the University in another capacity, prevent him from gaining admission into the University Medical School, and prevent him from seeking legal redress for the Defendants' violation of his rights.

On 19 June 1987, Janowsky told Privette that because he had failed to properly clean a "surgery table" he "would be terminated." Plaintiff alleged that the "Defendants conspired to make Privette's work area appear to be in much worse condition than the other work areas so that the Defendants would have an excuse for terminating Privette." "Janowsky told Privette that Janowsky would keep his own file on Privette and that he would use it against Privette if he had the opportunity, and that Janowsky would do whatever he could do to keep Privette out of the University's Medical School." On 23 June 1987, "Janowsky informed Privette that he was terminated effective June 19." "During the summer of 1987, Privette inquired about numerous jobs at the University. Although many persons expressed interest in employing Privette, in each case his application was eventually rejected. Upon information and belief, the applications were turned down after the employers had consulted with the individual Defendants or other University officials." "Upon information and belief, and as a part of a continuing effort to harass Privette, the Defendants have made defamatory statements about Privette to potential employers and told them not to employ Privette as part of a continuing effort to harass Privette."

Based on the facts alleged in the complaint, Privette made the following separate claims for relief:

Count I--Conspiracy

45. Each of the allegations set forth in paragraphs 1 through 44 is realleged herein.

46. The unlawful conduct and practices described herein were acts committed pursuant to a common scheme, enterprise, or agreement among the Defendants and others, the object of which was to commit unlawful acts or to use lawful acts to achieve unlawful results harmful to Privette.

47. Each of the Defendants and others were co-conspirators, and as co-conspirators each was the agent of the others in the perpetuation of unlawful conduct or practices which proximately caused injuries to Privette.

Count II--Deprivation of Civil Rights

( 42 U.S.C. Section 1983 )

48. Each of the allegations set forth in paragraphs 1 through 47 is realleged herein.

49. At all times relevant to this lawsuit Privette has had substantial liberty and property interest in his continued employment as a research technician at the lab, the right to seek and be considered for other employment at the University and elsewhere, the right to seek and be considered for admission into the University's Medical School, the right to seek legal redress through the University's Grievance Procedure and other legal remedies, the freedom of association, and the freedom of expression.

50. At all times relevant to this lawsuit, the Defendants have acted under color of state law.

51. The Defendants acted arbitrarily and capriciously in harassing and terminating Privette. The Defendants have also violated Privette's rights to seek legal redress and his rights to freedom of association and freedom of expression.

52. Janowski [sic] and Rezvani [sic] have acted in bad faith and with ill will and malice towards Privette in violating his rights.

53. Privette has incurred substantial injuries as a result of the Defendants' violation of his rights.

Count III--Interference with Contractual Relations

54. Each of the allegations set forth in paragraphs 1 through 53 is realleged herein.

55. Between January of 1986 and June of 1987 Privette had a valid contract of employment with the University which conferred rights and privileges upon Privette.

56. Janowski [sic] and Rezvani [sic] had knowledge of the contract between Privette and the University.

57. Janowski [sic] and Rezvani [sic] intentionally induced the University to terminate Privette in violation of his contract of employment.

58. Janowski [sic] and Rezvani [sic] lacked any justification for their acts.

59. The acts of Janowski [sic] and Rezvani [sic] have proximately caused Privette to incur substantial damages.

Count IV--Intentional Infliction of Emotional Distress

60. Each of the allegations set forth in paragraphs 1 through 59 is realleged herein.

61. The acts of the Defendants amount to extreme and outrageous conduct.

62. The Defendants acted with the intent to cause Plaintiff to suffer severe emotional distress, or with reckless indifference as to the likelihood that Privette would suffer severe emotional distress.

63. The Defendants' acts have caused Privette to suffer severe emotional distress.

64. The Defendants' acts have proximately caused Privette to suffer substantial damages.

Count V--Wrongful Discharge

65. Each of the allegations set forth in paragraphs 1 through 64 is realleged herein.

66. Pursuant to the University's Personnel Guide, Privette could be discharged only for just cause.

67. At all times that Privette was employed by the University, he served the University faithfully and diligently, conducted himself properly, and performed all the duties incident to his employment honestly and with reasonable diligence, care and attention.

68. The Defendants discharged Privette without just cause.

69. The Defendants' wrongful discharge of Privette was the proximate cause of damages incurred by Privette.

Count VI--Breach of Contract

70. Each of the allegations set forth in paragraphs 1 through 69 is realleged herein.

71. Between January of 1986 and June of 1987, Privette had a valid and enforceable contract of employment with the University.

72. The Defendants breached Privette's contract of employment with the University.

73. The Defendants' breach of Privette's employment contract was the proximate cause of damages incurred by Privette.

Count VII--Punitive Damages

74. Each of the allegations set forth in paragraphs 1 through 73 is realleged herein.

75. The aforesaid actions were done intentionally, willfully, wantonly, or with a heedless and reckless disregard of Privette's rights, entitling Privette to recover punitive damages in an amount sufficient to punish the Defendants and deter similar conduct in the future.

In his prayer for relief, the plaintiff requested back pay, punitive damages and injunctive relief to enjoin the defendants from interfering with "any application by the Plaintiff for employment with any person or entity, including the University because of Plaintiff's exercise of his civil rights." The plaintiff also requested injunctive relief to prohibit the defendants from interfering with or adversely affecting "any application by the Plaintiff for admission to any school or program of the University, or any other college or university ..." Finally, the plaintiff requested that "the University's personnel file be purged of any notes or documents which relate in any way to the Defendants' wrongful conduct or the Plaintiff's exercise of his civil rights ..."

The plaintiff later moved to amend his complaint to add:

53A The University's Grievance Procedure would not provide adequate redress for Privette's claims and requested remedies, and would not provide an orderly procedure for an appeal to the Superior Court for review of the final administrative action. Thus, Privette has no adequate remedy under state law which provides due process.

On 18 July 1988, the trial court allowed the plaintiff's motion to amend his complaint and "[u]pon consideration of the amended complaint, memoranda submitted on behalf of the parties, and arguments of counsel," granted defendants' Rule 12(b)(6) Motion to Dismiss. In the alternative, after considering affidavits "attached to defendants' motion for partial summary judgment, the amended complaint, the memoranda submitted on behalf of the parties, and the arguments of counsel," the trial court granted...