Wang v. Unc–ch Sch. of Med.
| Decision Date | 04 October 2011 |
| Docket Number | No. COA10–1021.,COA10–1021. |
| Citation | 273 Ed. Law Rep. 456,716 S.E.2d 646 |
| Court | North Carolina Court of Appeals |
| Parties | Dr. YAN–MIN WANG, Petitioner,v.UNC–CH SCHOOL OF MEDICINE and Dr. William Snider, Respondents. |
OPINION TEXT STARTS HERE
Appeal by respondents from order entered 14 May 2010 by Judge Abraham Penn Jones in Orange County Superior Court. Heard in the Court of Appeals 9 February 2011.
Alan McSurely, Chapel Hill, for petitioner.
Attorney General Roy Cooper, by Special Deputy Attorney General Gary R. Govert, for respondents.
Respondents UNC–Chapel Hill School of Medicine and Dr. William Snider appeal an order reversing a decision of the Board of Governors of the University of North Carolina to the effect that Petitioner Dr. Yan–Min Wang had not been treated in an impermissible and unlawful manner in connection with her employment and ordering UNC–Chapel Hill to reinstate Petitioner to a position she previously held with the university, to pay Petitioner's attorney's fees, and to revise its grievance procedures. On appeal, Respondents argue that the trial court misapplied the whole record test in evaluating the BOG's decision, erred reviewing the constitutional and other legal issues raised by Petitioner, and erred by reversing the BOG's decision. After careful consideration of Respondents' challenges to the trial court's order in light of the record and the applicable law, we affirm the trial court's order in part and reverse and remand the trial court's order in part.
On 1 August 2004, Dr. William Snider, the director of the Neuroscience Center at the UNC–Chapel Hill School of Medicine, appointed Petitioner to a part-time position as a research scientist. Dr. Snider leads a team that conducts experiments on the nerve processes of genetically modified mice. The funding necessary to support this work comes from grants provided by the National Institutes of Health and private foundations. Petitioner was initially appointed for a one year term, with her employment contingent upon the continued availability of the necessary funding and subject to the need for compliance with the University's Employment Policies for EPA Non–Faculty Employees. In an e-mail sent prior to Petitioner's appointment, Dr. Snider stated that, “if things go well” and the needed funding became available, Petitioner might obtain a full-time appointment as a non-tenure track research assistant professor in the future.
On 27 April 2005, Dr. Snider submitted an application for a “reentry” grant from the NIH to fund Petitioner's position as a full-time research assistant professor. On 1 August 2005, while the grant application was still pending, Petitioner was appointed to a second one-year term as a part-time research scientist.
After her reappointment, Petitioner worked for Dr. Snider on a separate funding proposal involving the provision of support for Dr. Snider's work using a line of experimental mice. As part of that process, Petitioner conducted preliminary genotyping tests on the mice 1 used in the lab's experiments for the purpose of confirming that the mice in question were islet1–Cre positive as had been reported in the funding proposal. As a result of the tests that she performed, Petitioner concluded that the mice were not all islet1–Cre positive, a finding that she reported to Dr. Snider. (R165, 549–53) Although the evidence concerning the extent to which there actually were any genotyping problems in the laboratory and what, if any, steps needed to be taken to identify and solve any genotyping problems was conflicting, the record indicates that, in early December 2005, Petitioner and Dr. Snider exchanged a series of e-mails in which they disputed the appropriateness of the tone that each had used in communicating with other during various conversations concerning the genotyping issue and the specifics of what each had said to the other during these conversations.
On 12 December 2005, Dr. Snider learned that the NIH grant had been approved. In January 2006, Dr. Snider sent e-mails to Petitioner stressing the importance that the level of collegiality that she displayed while interacting with others would play in his decision concerning whether to reappoint Petitioner to another term of employment. On 31 January 2006, Dr. Snider informed Petitioner that he had decided not to recommend her for a research faculty appointment due to concerns about her tendency to make “intemperate comments” and engage in “harsh interactions.” However, Dr. Snider told Petitioner that, if she could “interact productively around the science,” he would set up a “mentoring committee” that would monitor Petitioner's progress and advise him “if and when it is appropriate to make the research faculty appointment.”
In February 2006, Petitioner met with Denise Vandervort, a human relations facilitator, for the purpose of expressing her concerns about Dr. Snider's decision to refrain from recommending her for appointment to a full-time position. After discussing the matter with Petitioner and Dr. Snider, Ms. Vandervort and Dr. Snider “agreed that any further interactions between [Dr. Snider and Petitioner] should take place in the presence of a third party” and created a mentoring committee for the purpose of assisting in the resolution of the various issues that surrounded Petitioner's employment. On 24 March 2006, the mentoring committee presented Petitioner with a “memorandum of understanding” detailing the terms under which she would be allowed to continue to work at the Center. However, Petitioner did not sign the MOU because she did not agree with its terms.
On 31 March 2006, Petitioner met with Karen Silverberg, the Associate Dean of Human Resources, for the primary purpose of discussing her contention that Dr. Snider had “promised” to promote her to a full-time position. Although Plaintiff asserts in her brief before this Court that she “mentioned” problems with the mouse colony during this meeting, the record contains no indication that issues concerning laboratory procedures were addressed at that time.
In late March and early April, 2006, Petitioner wrote a letter (referred to as the “Dear Dr.” letter) in which she complained about Dr. Snider's “broken promises” to hire her as a full-time researcher. In addition, the “Dear Dr.” letter included a paragraph discussing Petitioner's concerns about mouse genotyping in Dr. Snider's lab. Petitioner e-mailed or gave this letter to Dr. James Anderson and Dr. Colin Hall, the chairs of the two departments in which Dr. Snider had an appointment; Associate Dean Karen Silverberg; Dr. Albert Collier, the University's Scientific Integrity Officer; Wayne Blair and Dr. Laurie Mesibov, the University's ombudsmen; and Dr. Anthony–Sam Lamantia, a professor in the Neurosciences Center and one of Dr. Snyder's colleagues. According to applicable University policies, Drs. Anderson, Hall, Collier and Mesibov and Mr. Blair were faculty members or administrators to whom a complaint could appropriately be directed. However, Petitioner should not, under established University policy, have sent the “Dear Dr.” letter to Dr. Lamantia. After learning that Petitioner had sent a copy of the “Dear Dr.” letter to Dr. Lamantia, Dr. Snider decided that he could not work with Petitioner any longer. As a result, on 13 April 2006, Dr. Snider rejected the funding from the NIH grant which would have been used to employ Petitioner in a full-time position, instructed Petitioner to work at an off-campus site for the remainder of her contract, and notified Petitioner that she would not be reappointed.
On 23 April 2006, Petitioner filed a grievance with the EPA Non–Faculty Grievance Committee in which she alleged that Dr. Snider had failed to renew her appointment in retaliation for her decision to report his “broken promises” to promote her to a full-time position and the problems with mouse genotyping in his lab. On 1 June 2006, the Grievance Committee reported to Chancellor James Moeser that it had found “no basis to determine that Dr. Snider has engaged in unfair or retaliatory treatment toward the grievant or to other employees.” Petitioner appealed the Grievance Committee's decision to the Chancellor, who rejected her appeal on 22 August 2006. At that point, Petitioner appealed to the Board of Trustees. On 20 December 2006, the BOT's Grievance Panel remanded Petitioner's grievance to the Grievance Committee in order to permit that body to make detailed factual findings concerning Petitioner's grievance on the basis of a de novo review of the record and recommended that Petitioner be permitted to submit a new grievance.
On 25 February 2007, Petitioner submitted a new statement of her grievances in which she asserted four claims:
1.) On April 13, 2006, Dr. Snider gave me a signed letter informing me that I was to [work off campus for the rest of my appointment.] This action was in retaliation for reports I had made about him to appropriate University administrative officials starting in late March, 2006 ... concern[ing] matters governed by ... University policy and [the Whistleblower Act.]
2.) On April 13, 2006 in the same letter Dr. Snider informed me that my contract would not be renewed and that my reentry grant would be returned to NIH. This action was in retaliation for reports I had made about him to appropriate University administrative officials starting in late March, 2006 ... concern[ing] matters governed by ... University policy and [the Whistleblower Act.]
3.) During the entire period of my employment in his lab, Dr. Snider discriminated against me on the basis of my age (48), sex (female), and national origin (Chinese).
After identifying the issues that it needed to address in order to resolve Petitioner's grievance, the Grievance Committee reviewed documentary evidence, interviewed witnesses and conducted a hearing at which Petitioner and Dr. Snider presented their...
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