Semelka v. Univ. of N.C.

• Decision Date: 31 December 2020
• Docket Number: No. COA19-1076,COA19-1076
• Citation: 854 S.E.2d 34
• Parties: Richard C. SEMELKA, M.D., Petitioner, v. The UNIVERSITY OF NORTH CAROLINA, and the University of North Carolina at Chapel Hill, Respondents.
• Court: North Carolina Court of Appeals

854 S.E.2d 34

Richard C. SEMELKA, M.D., Petitioner,

v.The UNIVERSITY OF NORTH CAROLINA, and the University of North Carolina at Chapel Hill, Respondents.

No. COA19-1076

Court of Appeals of North Carolina.

Filed: December 31, 2020

Law Office of Barry Nakell, by Barry Nakell, for Petitioner-Appellant/Cross Appellee.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Vanessa N. Totten, Special Deputy Attorney General Kimberly Potter, and Assistant Attorney General Zachary Padget, for Respondents-Appellees/Cross-Appellants.

McGEE, Chief Judge.

Richard C. Semelka, M.D. ("Petitioner") appeals and the University of North Carolina ("UNC") and the University of North Carolina at Chapel Hill ("UNC-CH") (collectively, "Respondents") cross-appeal from the trial court's order affirming the UNC Board of Governors’ ("BOG") decision to discharge Petitioner from his employment and reversing the BOG's decision that UNC-CH could cease payment of Petitioner's salary following the decision of UNC-CH's Board of Trustees ("BOT"). We affirm.

I. Factual and Procedural Background

Petitioner was previously employed as the Director of Quality and Safety of Radiology and a Professor of Radiology within UNC-CH's School of Medicine's Department of Radiology. Between 2011 and 2015, Petitioner sent numerous emails to administrators within the Department of Radiology, the Office of the Dean of UNC-CH's School of Medicine, and UNC-CH's Office of University Counsel ("OUC") regarding safety concerns relating to the conduct of certain colleagues within the Radiology Department. Petitioner learned in January of 2016 that he had not been selected to fill the position that he had applied for – Division Chief of Abdominal Imaging. Petitioner sent UNC-CH Chancellor Carol Folt ("Chancellor Folt") a letter on 8 January 2016 expressing his concerns with how the Department of Radiology's administrators handled the investigations into his complaints and asserting his grievances with Department Chair, Dr. Matthew Mauro ("Dr. Mauro"), as well as certain other colleagues. In addition to alleging a "dereliction of responsibility by [Dr.] Mauro," Petitioner asserted that Dr. Mauro retaliated against him by "not appointing [him] as the [D]ivision [C]hief of Abdominal Imaging, but rather selected the only outside candidate that applied."

In response to Petitioner's letter to Chancellor Folt, the Executive Vice Chancellor and Provost, Dr. James W. Dean, Jr. ("Provost Dean"), sent Petitioner a letter on 21 January 2016 stating that he had read Petitioner's email to Chancellor Folt and spoken with "several people connected to the events that [Petitioner] describe[d]." Provost Dean informed Petitioner that a "thorough investigation" had been conducted into each of Petitioner's previously-communicated concerns. The letter rejected Petitioner's claim that he was retaliated against by Dr. Mauro, explaining that "any personnel decision is open to a number of interpretations, and may have been made based on a number of factors." Finally, Provost Dean outlined the faculty grievance process for Petitioner "to further pursue [his] concerns."

Petitioner retained the law firm of Mintz, Levin, Cohn, Ferris, Glovsky, and Popeo, P.C. ("Mintz Levin") in February of 2016. In an engagement letter dated 5 February 2016, Mintz Levin advised Petitioner that "[t]he Firm will represent and advise you with regard to issues concerning the University of North Carolina at Chapel Hill, and related matters." Petitioner submitted an expense reimbursement request to the Department of Radiology's Associate Chair for Administration, Bob Collichio ("Mr. Collichio"), on 13 July 2016. Petitioner sought reimbursement from the Radiology Operating Fund¹ for approximately $30,000 in legal fees he had paid to Mintz Levin. As justification for his request for reimbursement of legal fees, Petitioner sent Mr. Collichio a series of four emails explaining the "business-related" reasons he had hired Mintz Levin.

Mr. Collichio sought the assistance of OUC in determining whether any of Petitioner's legal expenses were reimbursable. In a 25 July 2016 email, Mr. Collichio informed Petitioner that he had not "provide[d] enough detail to make any decision on what can be reimbursed or not," and asked Petitioner to submit additional documentation in support of his request. In response, Petitioner sent Mr. Collichio the engagement letter from Mintz Levin, a partially redacted Mintz Levin invoice for February in the amount of $14,861.80, a partially redacted Mintz Levin invoice for March in the amount of $10,780.60, and an April invoice in the amount of $1,833.60. Petitioner informed Mr. Collichio in a 5 August 2016 email of his intention to terminate Mintz Levin because he had been charged "more money that [he had] derived benefit from." Petitioner also expressed frustration that his reimbursement request had not been approved and offered to personally meet with OUC.

In a 23 August 2016 email, Mr. Collichio informed Petitioner that OUC had provided feedback that was "not good news." The email explained that Petitioner's request for reimbursement of legal fees could not be honored because Petitioner did not get prior approval by OUC and "faculty do not have the authority to bind the University in contract for outside counsel," as "these are the decisions made by the OUC." The email also stated that OUC "looked at the line items in the invoices [Petitioner] provided, and, though vague, they do not appear to align with all of the reasons [Petitioner] provided as the purpose of retaining outside counsel."

At the request of the OUC, in August of 2016, UNC-CH's Director of Internal Audit Department, Phyllis Petree ("Ms. Petree"), commenced an investigation into Petitioner's request for reimbursement of legal fees. Ms. Petree also initiated an audit into Petitioner's prior travel and business reimbursements from the Radiology Operating Fund from July 2010 to September 2016. In a final audit report entered 5 January 2017, Ms. Petree concluded that "the primary purpose of the law firm engagement giving rise to the legal fees in question was for personal matters, though [Petitioner] initially represented that the fees were for consultation related to cybersecurity and to his University duties." Additionally, Ms. Petree concluded that between September 2010 and September 2016, Petitioner "claimed and was reimbursed for costs of nine trips that were primarily personal in nature and were not reimbursable as business travel."

In a letter dated 11 January 2017, Provost Dean informed Petitioner of his intention to discharge him from his employment as a professor at UNC-CH for misconduct under the Trustee Policies and Regulations Governing Academic Tenure in the University of North Carolina at Chapel Hill (the "Tenure Policy").² Relying on Ms. Petree's audit report, the letter stated that Petitioner submitted to the Radiology Department a request for reimbursement of $30,000 in legal fees, "knowingly representing that these expenses were incurred for legal advice regarding [his] work performed for the University when, instead, these legal services were obtained for primarily personal reasons, including pursuing legal action against the University." Provost Dean described Petitioner's behavior as "inappropriate and unethical conduct that may also constitute a criminal violation" and found "this significant act alone constitutes misconduct of such a nature to indicate that [Petitioner is] no longer fit to be a member of the faculty[.]" The letter stated that "[f]urther contributing to a pattern of dishonesty and false representations, [Ms. Petree] thereafter discovered that, over the past five years, [Petitioner had] established a practice of improperly seeking full reimbursement from the University for trips that were personal in nature." According to Provost Dean, Petitioner's behavior was "sufficiently serious as to adversely reflect on [his] honesty, trustworthiness and fitness to be a faculty member" and his "actions constitute misconduct of such a nature as to indicate that [Petitioner] is no longer fit to be a member of the faculty[.]" The letter informed Petitioner of his right to appeal the decision and explained that pursuant to Section 3 of the Tenure Policy, Petitioner was suspended "pending [his] discharge or other resolution of [the] matter," but that his suspension would be "with full pay."

On that same day, the Executive Dean of the School of Medicine, Dr. Wesley Burks ("Dr. Burks") sent Petitioner a letter outlining "the specific terms of [his] suspension from employment pursuant to Section 3(b)(9)" of the Tenure Policy. The letter explained that Petitioner would continue to receive his full pay during his suspension, which was "effective immediately and shall continue until a final decision concerning [his] discharge from employment."

Petitioner appealed Provost Dean's decision to the UNC-CH Faculty Hearings Committee (the "Faculty Hearings Committee") on 11 January 2017, in accordance with the Tenure Policy.³ The matter was heard by a five-member panel over the course of three days. At the hearing, Petitioner argued that he was the victim of retaliation on behalf of UNC-CH based on the safety concerns he had previously raised. The Faculty Hearings Committee submitted a memorandum to Chancellor Folt on 23 May 2017 with its findings and its unanimous recommendation that Chancellor Folt uphold Provost Dean's decision to discharge Petitioner. Finding that UNC-CH's investigations into Petitioner's concerns revealed no evidence of retaliation against Petitioner, the Faculty Hearings Committee rejected Petitioner's retaliation claim. Specifically, the Faculty Hearings Committee concluded:

Dr. Semelka's choice to seek reimbursement for $30,000 worth of legal fees and his description of the need for this outside legal consultation as being related to various activities such as writing books or considering new safety

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