Vukelic v. Bartz, No. Al-01-146.
| Decision Date | 24 February 2003 |
| Docket Number | No. Al-01-146. |
| Citation | 245 F.Supp.2d 1068 |
| Parties | Pamela J. VUKELIC, Plaintiff, v. Darleen BARTZ, in her individual capacity as Preventive Health Section Chief of the North Dakota Department of Health; and Murray G. Sagsveen in his individual capacity as the former North Dakota State Health Officer, Defendants. |
| Court | U.S. District Court — District of North Dakota |
Patricia R. Monson, Nilles, Hansen & Davies, Ltd., Fargo, ND, for Plaintiff.
Tag C. Anderson, Attorney General's Office, Bismarck, ND, for Defendants.
This dispute arose out of actions alleged to have been taken by the defendants Darleen Bartz and Murray Sagsveen, against the plaintiff, Pamela J. Vukelic, while working for the North Dakota Department of Health [hereinafter referred to as the Health Department]. According to the plaintiff [hereinafter referred to as Vukelic], she was removed from her position as the Health Department's Director of the Division of Disease Control on May 31, 2000, under the guise of a departmental reorganization. Thereafter, Vukelic claims that she was subjected to retaliatory and punitive actions by the defendants. Vukelic submitted a letter of resignation and resigned from the Health Department on August 15, 2000. She contends that her reassignment amounted to a constructive discharge.
On December 31, 2001, Vukelic filed an action against defendants Bartz and Sagsveen under 42 U.S.C. §§ 1983 alleging: 1) retaliation in violation of the First Amendment, 2) deprivation of a property right without due process of law in violation of the Fourteenth Amendment, 3) injury to reputation in violation of the First Amendment and deprivation of liberty without due process of law in violation of the Fourteenth Amendment, 4) defamation, and 5) intentional/reckless infliction of emotional distress.
On August 14, 2002, the defendants filed a motion for dismissal pursuant to Rule 56 of the Federal Rules of Civil Procedure. The defendants characterize Vukelic as a disgruntled former employee dissatisfied with the ongoing reorganization of the Health Department. The defendants assert that a dismissal of the lawsuit is warranted because (1) the defendants are immune from suit under the doctrine of qualified immunity, (2) the Eleventh Amendment bars the plaintiffs state law claims, (3) the alleged defamatory statements are privileged and not capable of defamatory meaning, and (4) the plaintiff failed to identify facts that support her claim of intentional infliction of emotional distress.
The plaintiff, Pamela Vukelic, was employed at the Health Department from 1994 until her resignation in August of 2000. She initially served as the HIV/AIDS Program Manager for the Division of Disease Control. In May of 1998, Vukelic was named the Director of the Division of Disease Control. Defendant Murray Sagsveen [hereinafter referred to as Sagsveen] was appointed as the State Health Officer on February 1, 1998. Defendant Darleen Bartz [hereinafter referred to as Bartz] was designated as the Health Department's acting Chief of the Preventive Health Section on or about July 1, 1999, replacing Dr. Alana Knudson Buresh. The "acting" designation was removed in January of 2000.
Vukelic's problems with Sagsveen allegedly began in December 1998. The evidence reveals that Sagsveen reportedly confronted Vukelic and several other director/supervisors (Sandy Anseth and Sandy Adams) about a rumor circulating through the Health Department that he and Dr. Alana Knudson-Buresh were having an affair. According to Vukelic, Sagsveen thereafter became increasingly critical of the manner in which she ran her department.
In early July 1999, Vukelic shared her concerns with Darlene Bartz that a subordinate, Rod Gilmore, was using government property for personal reasons to an excessive degree. Vukelic learned that Gilmore had used federal grant monies to purchase ear plugs for the Bismarck Gun Club and she suspended Gilmore for thirty (30) days without pay. To Vukelic's chagrin, Gilmore's suspension was later overturned by Sagsveen on procedural grounds. According to Sagsveen, he had never criticized Vukelic's handling of the incident. See Deposition of Sagsveen, p. 86.
In December of 1999, Sagsveen confronted Vukelic about the disclosure of protected health information in an article that had been published in the New England Journal of Medicine. To address confidentiality concerns, Sagsveen implemented a multi-step review procedure that Vukelic considered cumbersome and confusing.
In late May of 2000, Vukelic learned that Sagsveen had received a letter from State Representative Rod Froelich on May 2, 2000, and the letter was critical in part of the manner in which Vukelic managed her department. Vukelic was upset that Sagsveen had never informed her of the letter nor had Sagsveen sought her input when he formulated a response to the legislator. On May 30, 2000, Vukelic wrote a note to Sagsveen expressing concern and she requested to meet with Sagsveen to discuss the letter. Unsatisfied with Sagsveen's response, Vukelic consulted with her staff and then proceeded to initiate her own investigation into the allegations outlined in the letter of May 2, 2000, from Representative Froelich.
On May 31, 2000, Vukelic was called into Bartz's office and informed that she would be reassigned as part of an ongoing Health Department reorganization. The Health Department had experienced a number of personnel changes since Sagsveen became State Health Officer in February 1998. In late December 1998, Vukelic had expressed concerns to Sagsveen about the turmoil in the Health Department and the frequent and disruptive staff changes. See Deposition of Sagsveen, p. 57. Sagsveen testified that after he started work as the State Health Officer in February 1998, he had been exploring a reorganization of the Health Department to reduce administrative overhead and comply with a directive from the Governor to reduce the budget and the number of full-time equivalent positions. See Deposition of Sagsveen, p. 112. On May 31, 2000, Vukelic was notified that she would be reassigned different job duties and that her duties as Director of the Division of Disease Control were being combined with the job duties of the State Epidemiologist. Combining the State Epidemiologist duties and Director of Disease Control duties was a recommendation that had been made by Darlene Bartz to State Health Officer Sagsveen.
Despite the reassignment within the Health Department, Vukelic continued to earn the same salary and benefits. Following the reassignment, Vukelic immediately contacted the North Dakota Public Employee Association and a grievance was filed on her behalf by Executive Director Chris Runge. In a letter dated June 7, 2000, Sagsveen opined that Vukelic's reassignment was not a grievable action under state law.
The undisputed evidence has revealed that Vukelic and many other of the staff within the Division of Disease Control did not accept the reassignment and reorganization changes well. Following the announcement of the reorganizational decision, Vukelic and various members of Vukelic's staff contacted the Governor's Office, the First Lady, and several members of the Legislative Assembly of North Dakota to express their displeasure with Vukelic's reassignment and to complain about Sagsveen and his management of the Health Department. These contacts in turn led to numerous legislators contacting the Health Department in early June 2000 asking for an explanation of Vukelic's reassignment. The legislative contacts and subsequent inquiries were also eventually described in a number of newspaper articles that appeared in the Bismarck Tribune. In Vukelic's opinion, all of those actions prompted Sagsveen to place her on administrative leave effective June 19, 2000.
On June 21, 2000, an article critical of Sagsveen appeared in the Bismarck Tribune. A second article appeared in the June 25th edition of the Bismarck Tribune which discussed the turmoil within the Health Department. Sagsveen responded to the newspaper articles in a letter dated July 3, 2000, wherein he attributed a breakdown in communications between the State Epidemiologist and the Division of Disease Control to Vukelic. Specifically, Sagsveen made the following relevant statements:
Several former and current department employees call me "authoritarian" and "intimidating," particularly because I approved the reassignment of duties for Pam Vukelic. There were many reasons for the reassignment that have not been explained in the newspaper articles. When I appointed Darleen Bartz to manage two separate sections within the department, I asked her to carefully review the organization to determine if we could better and more efficiently serve the public. She recommended a number of changes, including the reassignment of Pam Vukelic, which I approved.
I approved the reassignment of Pam Vukelic (with no loss of pay or grade) for several organizational reasons. The new director of Disease Control, Larry Shireley, has been the state epidemiologist since 1990. He has a masters of science degree in health education, has a masters of public health degree, has extensive experience with infectious diseases, and he is the commander of a National Guard counter-bioterrorism unit. Pam Vukelic has a masters of science degree in home economics with an emphasis on textiles/clothing (Dr. McDonough promoted her to be the director of the Disease Control Division when he was the chief of the Preventive Health Section). Larry Shireley's professional and educational qualifications are far superior for this position. Also, we were experiencing communication problems between the state epidemiologist and the division. Pam Vukelic had denied the state epidemiologist access to...
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