Holland v. Harrison
Holland v. Harrison
Opinion
*637 This case presents the issue of whether a nurse at a county jail has stated a valid First Amendment claim by alleging that she was fired because she voiced objections within the workplace to performing a medical procedure on a patient. Plaintiff Elizabeth Holland appeals from the trial court's order dismissing her free speech claim pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. Because we conclude that Holland's speech did not pertain to a matter of public concern so as to invoke First Amendment protections, we affirm.
Factual and Procedural Background
We have summarized below the allegations in Holland's complaint, which we take as true in reviewing the trial court's Rule 12(b)(6) order.
See
Feltman v. City of Wilson
,
In 2006, Holland began working as a nurse in the Wake County Detention Center. At all relevant times, she was supervised by Nurse Tonya Minggia and Dr. Obi Umesi.
During the week of 6 May 2013, Holland was asked by a Detention Center employee to administer an antibiotic-vancomycin -to a patient through an IV in order to treat the patient's infection. This drug was required to be administered twice daily for a period of six weeks. Based upon her medical experience, Holland believed that vancomycin could not be safely administered through an IV and instead should be delivered with the aid of a pump device. Holland felt that administering the drug through an IV could put the patient's life at risk, potentially expose her to a claim of malpractice, and subject her to the loss of her nursing license.
Holland expressed to Minggia her belief that the Detention Center lacked the proper equipment to safely administer the medicine. In response, Minggia informed Holland that the appropriate equipment to administer the drug would be procured.
As of Friday, 10 May 2013, the pump had not been obtained. Holland reiterated her belief to Minggia that she could not safely administer the drug through an IV, but Minggia nevertheless instructed her to do so. Holland objected that following Minggia's directive would "jeopardize her career and the life of her patient." She also informed Minggia that because of the high patient-to-nurse ratio at the Detention Center, "administering the medication as requested could endanger the health *638 and safety of the other patients that she was to monitor because she would have to spend the majority of her time administering the medication and could not monitor the other patients to which she was assigned." *209 Holland contacted the physician's assistant who oversaw the Detention Center's medical facility and relayed her concerns about administering vancomycin through an IV. The physician's assistant told Holland that she had communicated with a nurse outside of the facility who agreed with Holland's position regarding the proper administration of the drug. After Holland's continued refusal to administer vancomycin to the patient through an IV, another nurse at the Detention Center agreed to do so.
Holland was subsequently notified by the on-duty nurse supervisor that she was being removed from her normal assignment in the observation unit of the Detention Center and was instead to report the following Monday for an 11:00 a.m. to 7:00 p.m. shift in the intake unit. Holland objected to this transfer based upon her belief that it was in response to her refusal to administer the vancomycin in an unsafe manner. After receiving an email from Minggia confirming the new assignment, Holland sent an email on 11 May to Minggia, Holland's workers' compensation case manager, and the human resources department stating that she would not report to work in the new position until a medical opinion was provided by her workers' compensation healthcare provider that the new position was consistent with work restrictions previously imposed for Holland after she sustained a work-related injury.
By the end of Sunday, 12 May, Holland had not received any response to her email. She did not report to work the following day but made multiple attempts to contact her case manager and the human resources department of the Sheriff's Office. 1 She eventually reached her case manager, who stated that Holland's 11 May email had been forwarded to the workers' compensation administrator. The case manager agreed with Holland that she should not accept the intake assignment until a medical review was completed.
During a telephone call that afternoon, Minggia informed Holland that she should have reported to work for her new position in the intake unit at 11:00 that morning as directed. When Minggia asked Holland whether she would report to work the next day at 11:00 a.m., Holland responded that she would come to work after a 10:00 a.m. workers' compensation-related *639 appointment but that she did not know when the appointment would end or whether her restrictions "would preclude her from performing certain duties under the new assignment." At that point, Minggia told Holland she was "no longer an employee of the Sheriff's [Office]" and was being "terminated because she did not show up for work [that morning]."
After her appointment the following day, Holland informed the human resources department that she would, in fact, report to work in the new position, but she was told to stay home and await further communications from the Sheriff's Office. Holland received a letter by hand-delivery later that day stating that her employment was being terminated effective immediately.
On 21 December 2015, Holland filed the present action in Wake County Superior Court against Sheriff Donnie Harrison, in his official capacity; Dr. Umesi, in his individual capacity; Minggia, in her individual capacity; and the Sheriff's Office's insurance carrier, the Ohio Casualty Insurance Company (collectively "Defendants"). In her complaint, Holland asserted (1) state law claims for wrongful discharge in violation of public policy, tortious interference with contract, and violation of her right to due process under the North Carolina Constitution; and (2) federal claims pursuant to
On 3 March 2016, Defendants filed a partial motion to dismiss pursuant to
*210
Rule 12(b)(6) in which they asserted that Holland had failed to state any valid claims upon which relief could be granted except for her state law wrongful discharge claim. Following a hearing before the Honorable Paul C. Ridgeway on 13 May 2016, the trial court issued an order granting in part and denying in part Defendants' motion. The court dismissed Holland's state and federal constitutional claims but declined to dismiss her claim for tortious interference with contract.
2
Holland filed a timely notice of appeal as to the portion of the trial court's order
*640
dismissing her
Analysis
I. Appellate Jurisdiction
Defendants seek the dismissal of Holland's appeal as interlocutory. Accordingly, we must determine whether we have appellate jurisdiction to hear this appeal.
See
Duval v. OM Hospitality, LLC
,
"A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court."
"Generally, there is no right of immediate appeal from interlocutory orders and judgments."
Paradigm Consultants, Ltd. v. Builders Mut. Ins. Co.
,
However, there are two avenues by which a party may immediately appeal an interlocutory order or judgment. First, if the order or judgment is final as to some but not all of the claims or parties, and the trial court certifies the case for appeal pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b), an immediate appeal will lie. Second, an appeal is permitted underN.C. Gen. Stat. §§ 1-277 (a) and 7A-27(d)(1) if the trial court's decision deprives the appellant of a substantial right which would be lost absent immediate review.
*641
N.C. Dep't of Transp. v. Page
,
The trial court's 13 May 2016 order does not contain a certification under Rule 54(b). Therefore, Holland's appeal is proper only if she can demonstrate a substantial right that would be lost absent an immediate appeal.
See
Embler v. Embler
,
Our caselaw makes clear that a substantial right is affected "where a possibility of inconsistent verdicts exists if the case proceeds to trial."
Heritage Operating, L.P. v. N.C. Propane Exch., LLC
,
To demonstrate that a second trial will affect a substantial right, [the appellant] must show not only that one claim has been finally determined and others remain which have not yet been determined, but that (1) the same factual issues would be *211 present in both trials and (2) the possibility of inconsistent verdicts on those issues exists.
Id
. at 627-28,
In the present case, we are satisfied that a sufficient overlap exists between Holland's surviving claim for wrongful discharge and her First Amendment claim that was dismissed by the trial court such that there exists a possibility of inconsistent verdicts absent immediate appeal of the trial court's order. Specifically, Holland's complaint alleges that she was discharged because she protested to her supervisors that administering vancomycin through an IV would be dangerous to her patient whereas Defendants assert that she was fired for not reporting to work on 13 May 2013. It is clear that the factual issue regarding the cause of Holland's dismissal would arise in both a trial on the wrongful discharge *642 claim and a trial on the First Amendment claim given that both claims hinge upon the actual reason for the termination of her employment.
Our consideration of this interlocutory appeal is consistent with this Court's prior caselaw. In
Bowling v. Margaret R. Pardee Mem'l Hosp.
,
Thus, we are satisfied that we possess jurisdiction to consider the merits of Holland's appeal.
See
Carcano
,
II. Dismissal of First Amendment Claim
As noted above, Holland's sole argument on appeal is that the trial court erred in granting Defendants' motion to dismiss her free speech claim under
The standard of review of an order granting a Rule 12(b)(6) motion is whether the complaint states a claim for which relief can be granted under some legal theory when the complaint is liberally construed and all the allegations included therein are taken as true. On appeal, we review the pleadings de novo to determine their legal sufficiency and to determine whether the trial court's ruling on the motion to dismiss was correct.
Feltman
,
*643
"Dismissal is proper when one of the following three conditions is satisfied: (1) the complaint on its face reveals that no law supports the plaintiff's claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good claim; or (3) the
*212
complaint discloses some fact that necessarily defeats the plaintiff's claim."
Podrebarac v. Horack, Talley, Pharr, & Lowndes, P.A
.,
Section 1983 provides a private right of action against anyone who, acting under color of state law, causes the "deprivation of any rights, privileges, or immunities secured by the Constitution...."
In order to establish that the employee engaged in protected speech, she must show that "(i) the speech pertained to a matter of public concern and (ii) the public concern outweighed the governmental interest in efficient operations."
Hawkins v. State
,
Defendants contend that even taking Holland's factual allegations as true, she has failed to establish that her speech related to a matter of public concern. A "matter of public concern" is one that "relates to any matter of political, social, or other concern to the community."
The test is whether the employee was speaking as a citizen about matters of public concern, or as an employee on matters of personal interest. Moreover, complaints about conditions of employment or internal office affairs generally concern an employee's self-interest rather than *644 public concern, even though a governmental office may be involved[.]
Evans v. Cowan
,
As a general proposition, courts are more likely to conclude that speech involves a matter of public concern when the speech is directed at an audience wider than one's immediate supervisors.
See, e.g.
,
Durham v. Jones
,
Evans
is instructive on this point. In
Evans
, the plaintiff was hired by the University of North Carolina at Chapel Hill's Student Health Services ("SHS") to help run the AfterHours Program ("AfterHours"), which provided health services to students outside of normal business hours.
Evans
,
The plaintiff filed a lawsuit in which she alleged that SHS had retaliated against her in violation of her free speech rights, and the claim was dismissed by the trial court.
Id. at 5,
*645 Evans underscores the relevance to this inquiry of the context and form of the speech at issue. The content of the communications made by the plaintiff in Evans arguably touched upon matters of public concern- i.e. , the cost-effectiveness of a healthcare program at a publicly-funded university, the program's ability to help students deal with alcohol problems, and the program's compliance with regulations concerning the oversight of nurses. However, the internal nature of her complaints militated against a conclusion that they involved matters of public concern such that free speech protections would attach.
Conversely,
Lenzer v. Flaherty
,
In reversing the trial court's dismissal of the plaintiff's free speech claim, we rejected the notion that the "plaintiff was speaking out for personal reasons unrelated to a matter of public concern when she questioned the vigor of investigations into possible mistreatment of patients at the ARC."
Id. at 507,
Warren v. New Hanover County Board of Education
,
In concluding that the plaintiff's speech involved a matter of public concern, we highlighted the fact that the plaintiff had "addressed the Board about the survey results
*214
at a public school board meeting."
Id. at 526,
Guided by the cases discussed above, we conclude that in the present case the trial court did not err in dismissing Holland's § 1983 claim. Holland voiced within the workplace a disagreement with her supervisors regarding the appropriate method for administering a particular medicine to a specific patient. She has not pled facts alleging a systemic problem with patient care at the Detention Center or asserting that she "ever voiced her concerns publicly outside the employment setting, which would tend to indicate a public concern."
Evans
,
Nothing in our holding, however, should be construed as diminishing the importance of patient safety in public medical facilities. In appropriate circumstances, a public employee's speech about the mistreatment of such patients could certainly rise to the level of public concern so as to invoke the First Amendment. However, even taking Holland's allegations in the light most favorable to her, we are unable to conclude that her speech under the specific circumstances alleged in her complaint involved a matter of public concern.
Accordingly, Holland has failed to state a free speech claim under
*647 Conclusion
For the reasons stated above, we affirm the trial court's 13 May 2016 order.
AFFIRMED.
Chief Judge McGEE and Judge MURPHY concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.