CHO v. DUKE UNIVERSITY et al
Filing
39
MEMORANDUM OPINION AND ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 01/21/2020, that Defendants' Motion for Summary Judgment, (Doc. 20 ), is GRANTED. FURTHER that this case is DISMISSED WITH PREJUDICE. A judgment in accordance with this Memorandum Opinion and Order will be entered contemporaneously herewith.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JUNE CHO,
Plaintiff,
v.
DUKE UNIVERSITY and
MARILYN HOCKENBERRY,
Defendants.
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1:18CV288
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Plaintiff June Cho brings several claims against Defendants
Duke University (“Duke”) and Marilyn Hockenberry
(“Hockenberry”), including defamation, tortious interference
with contract, and national origin discrimination in violation
of federal and state law. (Doc. 7.) Defendants have moved for
summary judgment pursuant to Fed. R. Civ. P. 56. (Doc. 20.)
Plaintiff has responded, (Docs. 25, 26), and Defendants have
filed a reply, (Doc. 27). This court finds that Plaintiff has
failed to raise any genuine issues of material fact regarding
whether Defendant Duke discriminated against Plaintiff based on
national origin or whether Defendant Hockenberry tortiously
interfered with Plaintiff’s contract or defamed her. Defendants’
motion for summary judgment, therefore, will be granted.
I.
FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
Plaintiff was born in South Korea and is now a United
States citizen. (Notice of Filing (Doc. 34) Ex. 1, Deposition of
June Cho (“Cho Dep.”) (Doc. 34-1) at 10.) 1 She received her PhD
from the University of North Carolina at Chapel Hill. (Id. at
15.)
Duke hired Plaintiff as an associate professor without
tenure for the academic year beginning July 1, 2015. (Motion of
Defendants Duke University and Marilyn Hockenberry for Summary
Judgment (“Defs.’ Mot.”) (Doc. 20) Ex. 2, Offer Letter (Doc.
20-2) at 2.) Prior to working at Duke, Plaintiff worked as a
faculty researcher at the University of Alabama, Birmingham
(“UAB”). (Cho Dep. (Doc. 34-1) at 15–16.) During her time at
UAB, Plaintiff received an RO1 research grant from the National
Institutes of Health (“NIH”). (Id. at 18–19.) This grant helped
fund Plaintiff’s research, studying testosterone and cortisol
levels in infants. (Pl.’s Mem. in Opp’n to Defs.’ Mot. for Summ.
J. (Pl.’s Resp. Mem. (Doc. 26) Ex. 3, Equal Employment
Opportunity Commission Charge of Discrimination (“EEOC Charge”)
(Doc. 26-3) at 3.) The RO1 grant followed Plaintiff to Duke.
(Cho Dep. (Doc. 34-1) at 23–25.)
1
All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.
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A.
Duke University Research Oversight Structure
Several Duke employees supervised Plaintiff and her work.
When Plaintiff arrived at Duke in July 2015, Plaintiff reported
to the Associate Dean for Research for the School of Nursing.
(Id. at 29.) Diane Holditch-Davis was the Associate Dean for
Research until December 2015. (Id. at 20, 28–29.) Defendant
Hockenberry took over as the Duke University School of Nursing
Associate Dean for Research starting in September 2015 until
August 2018, after Plaintiff left Duke. (Id. at 29, 122; Defs.’
Mot. (Doc. 20) Ex. 3, Declaration of Marilyn Hockenberry
(“Hockenberry Decl.”) (Doc. 20-3) ¶ 5.) She did not directly
supervise Plaintiff. (Hockenberry Decl. (Doc. 20-3) ¶ 6.)
Defendant Hockenberry also served as the Clinical Research
Unit Director for Duke University School of Nursing. (Id. ¶ 5.)
As the Clinical Research Unit Director, Defendant Hockenberry
supervised Research Practice Managers, who are part of Clinical
Research Units, which “are responsible for ensuring research
integrity and compliance with all state, federal, and
institutional regulations and policies.” (Id. ¶ 6.) She directly
supervised Phyllis Kennel, the Research Practice Manager
supervising Plaintiff’s study. (Id. ¶ 7.)
Within this structure, “[r]esearch study staff report
directly to the Research Practice Managers, not the Principal
Investigator or ‘PI.’” (Id. ¶ 6.) “This reporting structure is
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intended to avoid concerns of undue influence by a PI, which may
be more likely to occur in a centralized power structure.” (Id.)
Plaintiff was the PI for her research project. (Id. ¶ 8.)
Duke also has an Institutional Review Board (“IRB”). (Id.
¶¶ 2–3.) The IRB’s “mission is to ensure the protection of human
research subjects.” (Id. ¶ 3.) The IRB must review and approve
all research study protocols, and any changes to protocols “must
also be submitted and approved prior to implementation.” 2 (Id.)
Several others were also involved in supervising and
assisting Plaintiff’s research. Barbara Turner, Chair of the
Health of Women, Children, and Families Division of the Duke
University School of Nursing, served as Plaintiff’s direct
supervisor. (Defendants’ Reply in Support of Summary Judgment
(“Defs.’ Reply”) (Doc. 27) Ex. 1, Second Declaration of Barbara
Turner (Doc. 27-1) ¶ 2.) As Plaintiff’s supervisor, Turner
“conducted [Plaintiff’s] annual performance evaluations.” (Id.
¶ 3.) Kimberley Fisher is the Director of the Neonatal-Perinatal
Research Unit (“NPRU”) at Duke. (Defs.’ Mot. (Doc. 20) Ex. 6,
Declaration of Kimberley Fisher (“Fisher Decl.”) (Doc. 20-6)
¶ 2.) In this role, she worked with both the School of Nursing
and the School of Medicine. (Id.) Though not an official part of
her role, Fisher stepped in as the Study Coordinator for
2
IRBs are common and exist at other research universities.
(Hockenberry Decl. (Doc. 20-3) ¶ 3.)
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Plaintiff’s research when the prior Study Coordinator left Duke.
(Id. ¶¶ 4-5.) Marion Broome serves as the Dean for Duke
University School of Nursing. (Defs.’ Mot. (Doc. 20) Ex. 4,
Declaration of Marion Broome (“Broome Decl.”) (Doc. 20-4) ¶ 2.) 3
Broome was involved in the decision to hire Plaintiff. (Id.
¶ 3.) Phyllis Kennel served as the Director of Research
Operations and as a Research Practice Manager for the Duke
University School of Nursing Clinical Research Unit from May
2012 to February 2017. (Defs.’ Mot. (Doc. 20) Ex. 8, Declaration
of Phyllis Kennel (“Kennel Decl.”) (Doc. 20-8) ¶ 2.) In her role
as Research Practice Manager, she “provided assistance and
supervisory oversight to Dr. Cho’s research staff.” (Id. ¶ 4.)
Plaintiff’s staff therefore reported directly to Kennel. (Id.;
Cho Dep. (Doc. 34-1) at 31.) Kennel assisted Hockenberry with
the research supervision. (Cho Dep. (Doc. 34-1) at 30–31.) When
Kennel stepped down as a Research Practice Manager for
Plaintiff’s study in February 2017, Heather Adams took over
Kennel’s role. (Hockenberry Decl. (Doc. 20-3) ¶ 17 4; Defs.’ Mem.
(Doc. 20) at 11.)
3
Broome also serves as the Ruby F. Wilson Professor of
Nursing for Duke University School of Nursing and the Vice
Chancellor for Nursing Affairs at Duke. (Broome Decl. (Doc.
20-4) ¶ 2.) She has held these positions since 2014. (Id.)
4
The date reflected in paragraph 17 of Hockenberry’s
declaration should be March 22, 2017, as opposed to March 22,
2016. (Hockenberry Decl. (Doc. 20-3) ¶ 17.)
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B.
Issues with Protocol
As noted earlier, when Duke hired Plaintiff, she brought
the R01 grant on infants with her to Duke. (Cho Dep. (Doc. 34-1)
at 23–25.) Once Plaintiff finished transferring the study from
UAB to Duke, Plaintiff experienced several issues with the Duke
research protocol requirements. First, when Plaintiff went over
her research protocol with Fisher, Fisher expressed concern over
some of Plaintiff’s protocols, as they “contradicted the
standard of care practices for Duke’s newborn intensive care
unit and special infant care unit.” (Fisher Decl. (Doc. 20-6)
¶ 3.) 5
On another occasion in March 2017, Heather Adams, then an
Assistant Research Practice Manager, went to Defendant
Hockenberry with a complaint about Plaintiff. (Hockenberry Decl.
(Doc. 20-3) ¶ 17.) At that time, Adams had taken over for Kennel
as the CRU point-person for Plaintiff’s research staff. (Id.)
Adams told Defendant Hockenberry that “she walked into
[Plaintiff’s] office and saw [Plaintiff] looking at study
information on a computer with a PhD student [Plaintiff]
5
For instance, Kimberley Fisher explained that “premature
infants are fragile, and it may not be feasible to obtain
multiple saliva samples at 15 minute intervals as stated in the
protocol,” and that “because of space, some infants who are
stable may be moved to another facility prior to reaching 40
weeks when the final pre-discharge sample was to be collected
under [Plaintiff’s] protocol.” (Fisher Decl. (Doc. 20-6) ¶ 3.)
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intended to hire.” (Id.) The PhD student had not yet been
approved to work on the study, however. (Id.) Further, Plaintiff
had apparently requested that IT give this student access to
folders containing secure electronic data. (Id.) Defendant
Hockenberry entered the report into the IRB’s electronic
reporting system. (Id.) Plaintiff refutes that she showed the
student the data. (Cho Dep. (Doc. 34-1) at 126.) Plaintiff
emailed Adams asking her whether she had really seen Plaintiff
showing the student data, and that “[i]f you do not answer
within one week, I assume that it was not true.” (Id. at 128–
29.) Adams apparently responded that she did not make the
report. (Id. at 129.)
Further, Defendant Hockenberry allegedly accused Plaintiff
of using a device in her study without permission, (id. at 130),
and of sending data to outside analysts without a proper data
transfer agreement in place, (id. at 130–31). She also allegedly
accused Plaintiff of not properly compensating a research staff
member and failing to respond to emails. (Id. at 131.) Defendant
Hockenberry also noted that Plaintiff attempted to use
unauthorized training materials for her team. (Hockenberry Decl.
(Doc. 20-3) ¶ 12.)
C.
Reopening of Study Enrollment at UAB
As a second issue with the protocol requirements, Duke
insisted that the entire study take place at Duke, with the
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exception of the existing research subjects at UAB. (Cho Dep.
(Doc. 34-1) at 23–24.) Plaintiff, however, became frustrated at
the low numbers of new subjects enrolling in her study, and in
the fall of 2016, reopened subject recruitment for the study at
UAB without the approval of the Duke IRB. (Id. at 52–53, 64–65.)
This violated Duke’s research protocol. (Id. at 53; Broome Decl.
(Doc. 20-4) ¶ 4.) Plaintiff contends that she received verbal
permission from Turner to reopen enrollment at UAB. (Cho Dep.
(Doc. 34-1) at 54.)
Hockenberry, Fisher, and Kennel found out in November 2016
that Plaintiff had re-opened enrollment at UAB. (Hockenberry
Decl. (Doc. 20-3) ¶ 12; Fisher Decl. (Doc. 20-6) ¶ 7; Kennel
Decl. (Doc. 20-8) ¶ 12.) Fisher consulted with the chief of
Neonatology and the medical director for research concerning
this break from protocol. (Fisher Decl. (Doc. 20-6) ¶ 8.) They
decided that the NPRU would no longer work with Plaintiff; “this
decision meant that recruitment at Duke for this study would no
longer be allowed and [Plaintiff] would need to find another
site.” (Id.) Fisher informed the School of Nursing of this
decision in December 2016. (Id.)
D.
Personnel Issues
In the months preceding the re-opening of the UAB
enrollment, Plaintiff also seemed to have trouble with members
of her staff. Plaintiff discouraged her Study Coordinator from
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attending medical school at East Carolina University, because it
is not “prestigious.” (Kennel Decl. (Doc. 20-8) ¶ 7.) Plaintiff
also got upset when her data technician needed to be admitted to
the hospital unexpectedly in advance of a scheduled surgery,
which created a one-week gap in coverage. (Id. ¶ 9.) Plaintiff
“believed it was [Kennel’s] job to fill in,” even though it was
not Kennel’s job. (Id.; id. at 7–8.)
In May 2016, Plaintiff also requested that the Duke
statisticians assigned to her project be removed. (Cho Dep.
(Doc. 34-1) at 70–71.) She “had become upset when the
statisticians had not found significant findings and wanted them
to rerun the data to find significance.” (Turner Decl. (Doc.
20-5) ¶ 4.) She instead wanted to work with an outside
consultant at a Texas university, with whom she had worked on
prior studies. (Cho Dep. (Doc. 34-1) at 68–71.) Plaintiff states
that she understood she would need a data transfer agreement in
place in order to work with this outside consultant. (Id. at
72.)
E.
Defendant Hockenberry’s Performance Review, the Office
of Audit, Risk and Compliance’s Audit, and the IRB’s
Review
After learning of these various issues, Defendant
Hockenberry consulted with the Vice Dean for Clinical Research
at Duke, who suggested that Defendant Hockenberry reach out to
Duke’s Office of Audit, Risk and Compliance to conduct an audit
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of the study. Defendant Hockenberry requested an audit in
mid-November 2016. (Hockenberry Decl. (Doc. 20-3) ¶ 13.)
Defendant Hockenberry also met with Turner, Kennel, Fisher, and
Plaintiff in November 2016 to discuss the enrollment re-opening
at UAB. (Cho Dep. (Doc. 34-1) at 75.) During that meeting,
Defendant Hockenberry told those gathered that she would be
inviting an audit into Plaintiff’s research. (Id. at 80.)
After Defendant Hockenberry requested an audit, enrollment
for Plaintiff’s study was put on hold at both Duke and UAB.
(Hockenberry Decl. (Doc. 20-3) ¶ 13.) The Office of Audit, Risk
and Compliance finished its audit of Plaintiff’s study in
February 2017. (Turner Decl. (Doc. 20-5) ¶ 10.) The audit
apparently noted deviations from the approved IRB protocol,
(id.), but the audit apparently did not find Plaintiff’s conduct
warranted further action or discipline, (Cho Dep. (Doc. 34-1) at
82). Defendant Hockenberry was upset by this result. (Id. at
83.)
Defendant Hockenberry reported the audit and the other
concerns about Plaintiff’s study to the Duke IRB in December
2016. (Turner Decl. (Doc. 20-5) ¶ 8; Hockenberry Decl. (Doc.
20-3) at 13.) The Duke IRB conducted a full board review of
Plaintiff’s study, separate from the audit. (Hockenberry Decl.
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(Doc. 20-3) ¶¶ 15–16.) 6 “[T]he board unanimously voted to
recommend that based on a pattern of non-compliance,
[Plaintiff’s] PI privileges be revoked.” (Defs.’ Mot. (Doc. 20)
Ex. 7, Declaration of Geeta Swamy (“Swamy Decl.”) (Doc. 20-7)
¶ 5.) The Duke IRB submitted its recommendation to the Dean of
the School of Medicine, “who is an Institutional Officer tasked
with making a determination[] based on IRB recommendations.”
(Id. ¶ 6.) The Dean of the School of Medicine agreed and
“informed [Plaintiff] that her PI privileges were revoked” in
May 2017. (Id.)
Defendant Hockenberry, in late March 2017, went over
Plaintiff’s annual performance review with her. In that review,
Defendant Hockenberry told Plaintiff that Plaintiff had
difficult relationships with people and that Plaintiff had
violated protocols in her research. (Cho Dep. (Doc. 34-1) at
127.)
F.
Plaintiff’s Meeting with Turner and Statements
Concerning Plaintiff and Her Husband
In March 8, 2017, Plaintiff met with Turner to discuss the
audit and Defendant Hockenberry. (Id. at 87–88; Turner Decl.
(Doc. 20-5) ¶ 11.) Plaintiff brought her husband with her to
6
While Defendant Hockenberry was one of the IRB chairs
during the IRB’s review of Plaintiff’s study, she did not
participate in the full board review, nor did she play a role in
the board’s recommendation. (Defs.’ Mot. (Doc. 20) Ex. 7,
Declaration of Geeta Swamy (“Swamy Decl.”) (Doc. 20-7) ¶ 7.)
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this meeting for moral support. (Cho Dep. (Doc. 34-1) at 117.)
Turner did not allow Plaintiff’s husband into the meeting;
instead, Turner contends that she “asked him to sit in a waiting
area, he objected and shoved past [her] into [her] office.”
(Turner Decl. (Doc. 20-5) ¶ 11.) Turner further says that he
relented once Turner threatened to cancel the meeting. (Id.)
However, Turner states that when she and Plaintiff walked out
after their meeting, “her husband verbally attacked [Turner] and
berated [Turner] such that [Turner] was fearful that [she] might
be struck.” (Id.) 7
Plaintiff asserts that sometime after this meeting,
Defendant Hockenberry asked her staff to lock all the doors on
the first floor because Plaintiff could become physically
dangerous. (Cho Dep. (Doc. 34-1) at 133-34.) Plaintiff says that
Dr. Eun Ok Im, a faculty member at the time, whose office was
next to Defendant Hockenberry’s, attempted to get into her
office, but her door was locked. (Id.) Plaintiff contends that
Dr. Im told her that when Dr. Im asked why the door was locked,
“staff say, Marilyn Hockenberry ask us to lock all doors because
[Plaintiff] will come to and maybe harm someone.” (Id. at 134.)
7
Turner’s declaration includes an attachment of her
contemporaneous notes from that day which go into more detail.
(Turner Decl. (Doc. 20-5) at 9–10.)
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In her declaration, Dr. Im states that she “asked the staff
member why the doors were locked. The staff member said that it
was a safety precaution because of concerns related to Dr. Cho’s
husband,” but that she could “not recall the specific words.”
(Defs.’ Mot. (Doc. 20) Ex. 9, Declaration of Eun Ok Im (“Im
Decl.”) (Doc. 20-9) ¶ 5.)
Defendant Hockenberry refutes that she made this statement
or any similar statements. (Hockenberry Decl. (Doc. 20-3) ¶ 23.)
She notes that she “was made aware that Dr. Turner had an
interaction with [Plaintiff’s] husband that made her feel
uncomfortable and unsafe.” (Id.)
G.
Decision to Not Renew Plaintiff’s Appointment and
Early Termination of Research Grant
Starting in January 2017, Broome, concerned about the
audit, the IRB review, and that the NPRU would no longer support
Plaintiff’s study, consulted with other members of leadership
and made the decision not to renew Plaintiff’s Associate
Professor appointment. (Broome Decl. (Doc. 20-4) ¶ 4.) Broome
signed the letter containing this decision on April 6, 2017.
(Id. ¶ 5.) Turner informed Plaintiff of this decision on
April 12, 2017. (Id.) Duke offered Plaintiff a $27,000 severance
to leave within three months. (Cho Dep. (Doc. 34-1) at 122.)
Plaintiff declined and was paid through June 30, 2018. (Id.)
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In May 2017, after the IRB recommended that Plaintiff’s
status as PI on her project be revoked, Broome consulted with
department leadership and determined that “the School of Nursing
should return the grant to the National Institutes of Health.” 8
(Broome Decl. (Doc. 20-4) ¶¶ 6–7.)
H.
Plaintiff’s Grievance Report
On March 8, 2017, Plaintiff met with Turner to discuss the
audit and Defendant Hockenberry. (Cho Dep. (Doc. 34-1) at 87–88;
Turner Decl. (Doc. 20-5) ¶ 11.) Plaintiff informed Turner that
she wanted to file a complaint of some kind. (Cho Dep. (Doc.
34-1) at 88.) Turner suggested Plaintiff go see the Duke
Ombudsman. (Id. at 99.) On April 3, 2017, Plaintiff delivered
her report to the Ombudsman, who delivered the report to the
Grievance Committee. (Id. at 103; EEOC Charge (Doc. 26-3) at 3.)
Plaintiff’s report discussed Defendant Hockenberry
“micromanaging” Plaintiff’s research, and general “harassment.”
(Cho Dep. (Doc. 34-1) at 102; Hockenberry Decl. (Doc. 20-3)
¶ 21.) Plaintiff also asked for the resignations of Defendant
Hockenberry and Fisher. (Cho Dep. (Doc. 34-1) at 103.)
In June 2017, Defendant Hockenberry, Broome, Turner,
Fisher, and Kennel attended the Faculty Hearing Committee
hearing concerning Plaintiff’s grievance. (Hockenberry Decl.
8
Defendant Hockenberry was not involved in these
discussions. (Broome Decl. (Doc. 20-4) ¶ 7.)
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(Doc. 20-3) ¶ 21.) The Committee issued its unanimous decision
in July 2017 finding that Plaintiff was not the subject of
impermissible harassment based on national origin or any other
protected category or academic due process violations. (Id.;
Turner Decl. (Doc. 20-5) ¶ 16; Kennel Decl. (Doc. 20-8) ¶ 14.)
The Committee’s decision apparently “noted that Dr. Cho utilized
the term ‘harassment’ to refer to alleged ‘general mistreatment
by administration that she found detrimental to her research.’”
(Turner Decl. (Doc. 20-5) ¶ 16.)
I.
Equal Employment Opportunity Commission (“EEOC”)
Charge
In August 2017, Plaintiff filed a Charge of Discrimination
with the EEOC. (EEOC Charge (Doc. 26-3) at 2.) Plaintiff’s EEOC
Charge discusses Defendant Hockenberry’s involvement in
Plaintiff’s research, which Plaintiff alleges barred her from
being able to move forward with her research. (Id. at 3.)
Plaintiff further alleges that Defendant Hockenberry
discriminated against her based on national origin. (Id.) She
then states that she filed a grievance report against Defendant
Hockenberry on April 3, 2017, and that Plaintiff experienced
three instances of retaliation for filing the grievance report:
(1) the April 12, 2017 notice to Plaintiff that her appointment
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would not be renewed after June 2018; 9 (2) the May 2017 adoption
of IRB’s recommendation that Plaintiff’s PI status be removed;
and, (3) the May 2017 termination of her RO1 grant. (Id. at
5-7.) Plaintiff noted that she did not know about the EEOC or
national origin discrimination until August 2017. (Id.; Cho Dep.
(Doc. 34-1) at 186.)
J.
Procedural History
On December 12, 2017, the EEOC issued Plaintiff a Right-toSue letter and informed Plaintiff that she had ninety days to
file suit. (Complaint (“Compl.”) (Doc. 7) ¶ 41.) Assuming that
Plaintiff received the Right-to-Sue letter on December 12, 2017,
Plaintiff had until March 14, 2018, to file suit. (See id.)
Plaintiff timely filed this suit on March 9, 2018, in Guilford
County Superior Court. (Id.) Shortly thereafter, Defendants
removed this action to this court pursuant to 28 U.S.C. §§ 1331,
1441, and 1446, asserting that Plaintiff’s complaint involves
federal questions and that this court can exercise supplemental
jurisdiction over the remaining state claims pursuant to 28
U.S.C. § 1367(a). (See Petition for Removal (Doc. 1) at 1-4.)
On April 11, 2019, Defendants filed a motion for summary
judgment pursuant to Fed. R. Civ. P. 56. (Defs.’ Mot. (Doc.
20).) Defendants filed a brief in support of this motion,
9
The notice was dated April 6, 2017. (EEOC Charge (Doc.
26-3) at 5.)
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(Defs.’ Memorandum in Support of Summary Judgment (“Defs.’ Br.”)
(Doc. 21)), to which Plaintiff responded, (Pl.’s Response in
Opposition to Defendant’s Motion for Summary Judgment (Doc.
25)); Pl.’s Memorandum in Opposition to Defendants’ Motion for
Summary Judgment (“Pl.’s Br.”) (Doc. 26)), and Defendants
replied, (Defs.’ Reply in Support of Summary Judgment (“Defs.’
Reply”) (Doc. 27)).
Defendants argue that there are no genuine issues of
material fact, and that Defendants are entitled to judgment as a
matter of law. (Defs.’ Mot. (Doc. 20) at 1.) In particular,
Defendants argue that Plaintiff “can present no evidence of
national origin discrimination and Dr. Cho’s own testimony
demonstrates that she did not complain of national origin
discrimination until after the acts she contends were
retaliatory.” (Defs.’ Br. (Doc. 21) at 2.) Defendants also argue
that Plaintiff’s defamation claim against Defendant Hockenberry
is “based on incorrect assumptions and inadmissible doublehearsay” and that “[t]o the extent Dr. Hockenberry reported
concerns about Dr. Cho’s work and performance, she was obligated
to do so in her role as Clinical Research Unit Director and is
entitled to a qualified privilege.” (Id.) Finally, Defendants
argue that Plaintiff’s tortious interference claim fails because
Defendant Hockenberry is a “non-outsider to the alleged
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contract,” and that Plaintiff fails to prove actual malice as is
required. (Id.)
II.
STANDARD OF REVIEW
Summary judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex
Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). This court must
look to substantive law to determine which facts are material —
only those facts “that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). “On summary judgment the inferences to be drawn
from the underlying facts . . . must be viewed in the light most
favorable to the party opposing the motion.” United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam).
This court therefore must determine whether the evidence
“is so one-sided that one party must prevail as a matter of
law.” Anderson, 477 U.S. at 252. The moving party bears the
initial burden of demonstrating “that there is an absence of
evidence to support the nonmoving party’s case.” Celotex Corp.,
477 U.S. at 325. If the “moving party discharges its burden
. . . , the nonmoving party then must come forward with specific
facts showing that there is a genuine issue for trial.” McLean
v. Patten Cmtys., Inc., 332 F.3d 714, 718–19 (4th Cir. 2003).
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III. ANALYSIS
Plaintiff claims that Defendant Hockenberry defamed her and
seeks an injunction against any further “derogatory or
defamatory comments.” (Compl. (Doc. 7) ¶ 15.) Plaintiff further
claims that Defendant Hockenberry tortiously interfered with the
employment relationship between Plaintiff and her employer,
Duke. (Id. ¶ 26.) Finally, Plaintiff claims that Duke, by and
through its authorized agents, discriminated against her based
on national origin in violation of Title VII, as well as “the
public policy of the State of North Carolina” and North Carolina
General Statute § 143-422.1 et seq. (Id. ¶¶ 40, 42.) The court
will address each claim in turn.
A.
Defamation
Plaintiff’s common-law defamation claim against Defendant
Hockenberry includes slander per se. (Compl. (Doc. 7) ¶ 9.) She
also seeks an injunction against Defendant Hockenberry to
prevent her from making “any derogatory or defamatory comments
regarding Plaintiff.” (Id. ¶¶ 14–17.)
To succeed on a defamation claim in North Carolina, a
plaintiff must allege that (1) the defendant caused injury to
the plaintiff; (2) by making false, defamatory statements; (3)
of or concerning the plaintiff; and (4) which were published to
a third person. Boyce & Isley, PLLC v. Cooper, 153 N.C. App. 25,
29, 568 S.E.2d 893, 898 (2002). In North Carolina, slander is
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included under defamation. “Slander per se is ‘an oral
communication to a third party which amounts to . . . an
allegation that impeaches the plaintiff in his trade, business,
or profession.’” Id. at 29–30, 568 S.E.2d at 898 (quoting
Phillips v. Winston-Salem/Forsyth Cty. Bd. of Educ., 117 N.C.
App. 274, 277, 450 S.E.2d 753, 756 (1994)). “A prima facie
presumption of malice and a conclusive presumption of legal
injury and damage arises when a false statement falling into one
of these categories is spoken.” Barker v. Kimberly-Clark Corp.,
136 N.C. App. 455, 460, 524 S.E.2d 821, 824–25 (2000).
Plaintiff submits evidence that Defendant Hockenberry made
several defamatory statements: that Plaintiff was prone to
violence, (Cho Dep. (Doc. 34-1) at 135–36); that, during a
performance review, Defendant Hockenberry said Plaintiff was bad
at maintaining professional relationships and had violated IRB
protocol, (id. at 127); statements concerning protocol
violations that led to the audit and IRB review, (id. at 128,
130–33, 138); and statements made to Plaintiff’s colleagues
about Plaintiff being a “very bad person and very difficult to
. . . have a relationship with,” (id. at 139), a “really
wrongful researcher,” (id. at 137), and that being friends with
Plaintiff would not help them, (id. at 141–42).
Defendants claim that the alleged defamatory statement
about Plaintiff being prone to violence is inadmissible double
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hearsay and therefore cannot serve to overcome Defendants’
motion for summary judgment. (Defs.’ Br. (Doc. 21) at 20.)
Defendants further claim that Defendant Hockenberry’s qualified
privilege protects her other allegedly slanderous statements
relating to the audit or IRB review of Plaintiff’s study. (Id.
at 20-21.) Finally, Defendants argue that the statement that
being friends with Plaintiff would be bad for her colleague’s
career is inadmissible double hearsay. (Defs.’ Supplemental
Brief (Doc. 37) at 6–7.) The court agrees with Defendants.
With regard to the other two statements allegedly made to
Plaintiff’s colleagues, concerning Plaintiff being bad at
relationships and being a bad researcher, neither Plaintiff in
her complaint nor Defendants in their motion for summary
judgment address these statements specifically. Plaintiff’s
complaint is vague as to specific statements; Plaintiff only
states that Defendant Hockenberry “in the presence of diverse
persons and in a public manner, charged and accused Plaintiff of
. . . incompetence and mismanagement in the performance of her
duties . . . .” (Compl. (Doc. 7) ¶ 6.) Plaintiff discusses these
two statements in her deposition. (Cho Dep. (Doc. 34-1) at 137,
139.) The court therefore will address these statements, as they
could potentially fall into the category of defamatory
statements about which Plaintiff complains.
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1.
Statements about Plaintiff Being Violent
Plaintiff alleges that Defendant Hockenberry defamed her by
allegedly “charg[ing] and accus[ing] Plaintiff of physically
dangerous behavior as well as incompetence and mismanagement in
the performance of her duties with Duke University.” (Compl.
(Doc. 7) ¶ 6.) More specifically, Plaintiff, in her deposition,
asserts that Dr. Im, upon finding that her office door was
locked, asked the staff why the door was locked. (Cho Dep. (Doc.
34-1) at 134.) Plaintiff states that the staff told Dr. Im that
“Marilyn Hockenberry ask us to lock all doors because June Cho
will come to and maybe harm someone.” (Id.)
Any of Plaintiff’s own testimony that Dr. Im told her that
Defendant Hockenberry had told staff, who told Dr. Im, things
about Plaintiff is plainly inadmissible hearsay. Materials
submitted at summary judgment must be presented in a form
admissible in evidence. Fed. R. Civ. P. 56(c)(1)(B), (c)(2),
(c)(4). “[H]earsay evidence, which is inadmissible at trial,
cannot be considered on a motion for summary judgment.” Md.
Highways Contractors Ass’n v. Maryland, 933 F.2d 1246, 1251 (4th
Cir. 1991). When there are multiple levels of hearsay, each
level must independently qualify for an exception to the rule
against hearsay. Fed. R. Evid. 805.
Plaintiff, in her complaint, asserts that “Plaintiff’s
colleagues, including Dr. Im, were warned by Defendant
- 22 -
Hockenberry that Plaintiff would become physically dangerous to
them when she becomes angry.” (Compl. (Doc. 7) ¶ 7.) Dr. Im,
however, asserts that she “do[es] not recall that Dr.
Hockenberry made this statement to [her],” only that “[she]
asked the staff member why the doors were locked. The staff
member said it was a safety precaution because of concerns
related to [Plaintiff’s] husband.” (Im Decl. (Doc. 20-9) ¶ 5.)
Dr. Im’s declaration that the staff told her the doors were
locked because of concerns about Plaintiff’s husband is
therefore inadmissible double hearsay. Here, the first level of
hearsay is what Defendant Hockenberry allegedly told staff. This
statement might be admissible under the party-opponent exception
to the hearsay prohibition. Fed. R. Evid. 801(d)(2)(A). However,
Defendant Hockenberry and Dr. Im deny the statement.
(Hockenberry Decl. (Doc. 20-3) ¶ 23; Im Decl. (Doc. 20-9) ¶ 5.)
Plaintiff has not identified a staff member who can testify to
the statement; therefore, the second level of hearsay is what
the staff said to Dr. Im. There is no applicable hearsay
exception for the staff’s statement. 10
Because the only evidence submitted on this statement is
inadmissible double hearsay, Plaintiff does not create a genuine
10
While the staff’s statement to Dr. Im could arguably come
in under the party-opponent’s employee hearsay exception under
Fed. R. Evid. 801(d)(2)(D), this exception cannot apply because
Plaintiff is not suing Duke for defamation.
- 23 -
issue of material fact as Plaintiff has failed to present
evidence in admissible form, nor has Plaintiff shown how this
evidence might be admissible at trial.
2.
Statements During Annual Performance Review and
Statements Leading to the Audit and IRB Review
Plaintiff also submits evidence that Defendant
Hockenberry’s statements that led to the audit and the IRB
review of Plaintiff’s projects, as well as her statements to
Plaintiff during her annual performance review, were defamatory.
Plaintiff states that “Marilyn Hockenberry said I had very
wrong relationship, very difficult relationship with others, and
I made some violations on my research . . . Hockenberry was
really concern about my research activity.” (Cho Dep. (Doc.
34-1) at 127.) These statements were allegedly made in
connection with or during Plaintiff’s annual performance review.
(Id.)
These statements, made to Plaintiff alone during a
performance review, are not defamatory under the circumstances,
however. To be defamatory, the statements must be “published to
a third person.” Boyce & Isley, PLLC, 153 N.C. App. at 29, 568
S.E.2d at 898. Because Plaintiff submits no evidence that
Defendant Hockenberry included these comments in any sort of
official report read by someone else or made these statements to
- 24 -
anyone other than Plaintiff, the court finds these statements
are not defamatory as a matter of law.
Further, Plaintiff alleges that Defendant Hockenberry’s
reports to the IRB and the Office of Audit, Risk and Compliance
were defamatory. These include Defendant Hockenberry’s reports
that Plaintiff allowed an unauthorized PhD student to access
study data, (Cho Dep. (Doc. 34-1) at 125-26), reporting the
re-opening of enrollment at UAB without permission, (id. at
130), that Plaintiff was using a device in her study without
permission, (id.), and that Plaintiff was sending data to
outside analysts without a proper data transfer agreement, (id.
at 130–31).
Defendant Hockenberry has a qualified privilege to discuss
and address perceived issues with those individuals whom she
supervises or other Duke supervisors.
A statement which would otherwise qualify as slander per se
may be protected by privilege.
A qualified or conditionally privileged
communication is one made in good faith on any subject
matter in which the person communicating has an
interest, or in reference to which he has a right or
duty, if made to a person having a corresponding
interest or duty on a privileged occasion and in a
manner and under circumstances fairly warranted by the
occasion and duty, right, or interest.
Stewart v. Nation-Wide Check Corp., 279 N.C. 278, 285, 182
S.E.2d 410, 415 (1971). “Where the affirmative defense of
- 25 -
privilege is alleged, the burden is on the defendant to
establish facts sufficient to show that the publication of the
alleged defamation was made on a privileged occasion.” Shuping
v. Barber, 89 N.C. App. 242, 245, 365 S.E.2d 712, 714 (1988).
“The existence of the privilege creates a presumption that the
communication was made in good faith and without malice.”
Phillips, 117 N.C. App. at 278, 450 S.E.2d at 756. “The burden
then falls upon the claimant to show either actual malice on the
part of the declarant or excessive publication.” Market Am.,
Inc. v. Christman-Orth, 135 N.C. App. 143, 150, 520 S.E.2d 570,
576 (1999).
Actual malice may be demonstrated by “evidence of ill-will
or personal hostility on the part of the declarant . . . or by a
showing that the declarant published the defamatory statement
with knowledge that it was false, with reckless disregard for
the truth or with a high degree of awareness of its probable
falsity.” Clark v. Brown, 99 N.C. App. 255, 263, 393 S.E.2d 134,
138 (1990). Summary judgment is “most appropriate . . . where
plaintiff, who, assuming the burden of production to negate
defendant’s presumption of good faith with evidence of actual
malice, sets forth no specific fact showing an issue as to
defendant’s motive, but rests upon bare allegation and
suspicion.” Dobson v. Harris, 352 N.C. 77, 87, 530 S.E.2d 829,
837 (2000).
- 26 -
Defendant Hockenberry has presented facts which are not
disputed and which establish that the elements of qualified
privilege are all present here. First, Defendant Hockenberry, in
her role as Associate Dean for Research and Clinical Research
Unit Director, had a duty “to report the audit and related
concerns about Dr. Cho’s study to the Duke IRB.” (Hockenberry
Decl. (Doc. 20-3) ¶ 15.) Indeed, Plaintiff even admits that it
was “reasonable for [Defendant Hockenberry] to raise concerns
about work performance or perceived security issues or perceived
protocol deviations,” that it was “[a]bsolutely her job, and
that’s her good reason to give hard time to [Plaintiff],” and
that “part of her role was to protect the university.” (Cho Dep.
(Doc. 34-1 at 183–84.) Plaintiff also admits that it was within
the scope of Defendant Hockenberry’s role to request an audit.
(Id. at 78.) Defendant Hockenberry was therefore obligated to
report Adams’ report that she had witnessed Plaintiff looking at
study information with a PhD student who had not yet been
officially approved on the study; she was also obligated to
report Plaintiff’s re-opening of recruitment at UAB.
(Hockenberry Decl. (Doc. 20-3) ¶¶ 10, 12, 17.)
The second requirement, that the statements be made to a
person having a corresponding interest or duty, is also
satisfied here for all the statements. The Duke IRB and Office
of Audit, Risk and Compliance both had a corresponding duty or
- 27 -
interest in maintaining the integrity of research done at Duke
or investigating any protocol deviations. (See id. ¶ 16; Swamy
Decl. (Doc. 20-7) ¶ 3.)
The third requirement, that the statements be made on a
“privileged” or “proper” occasion, is satisfied here as well.
Plaintiff does not allege any disclosure of statements outside
of official reporting channels or to anyone outside the Duke
administration; at a minimum, Plaintiff does not dispute this
finding. (Cho Dep. (Doc. 34-1) at 160.) Reporting potential
misconduct through the appropriate private administrative
channels is “privileged” in nature, see Phillips, 117 N.C. App.
at 278, 450 S.E.2d at 756 (finding that an employee’s report of
the plaintiff’s misconduct to the superintendent was privileged,
when it was done privately), or is at least the proper occasion
to pass these issues along to the administrative processes
likely required to address these issues. Plaintiff submits no
evidence to the contrary. Plaintiff admits that she is not aware
of whether Defendant Hockenberry made defamatory comments to
anyone outside of Duke. (Cho Dep. (Doc. 34-1) at 160.)
Fourth, Defendant Hockenberry made all of these statements
in a “manner and under circumstances fairly warranted by the
occasion and duty, right, or interest.” As one of Plaintiff’s
supervisors, these comments are entirely appropriate for a
performance review or for a report of “perceived protocol
- 28 -
violations,” given the numerous reported complaints regarding
Plaintiff’s difficulties with staff and following protocols.
These complaints included, among others, Plaintiff allegedly
granting a PhD student unauthorized access to secure electronic
data, re-opening the study at UAB, and attempting to use
unauthorized training materials. (Hockenberry Decl. (Doc. 20-3)
¶¶ 12, 14, 17.) In sum, Defendant Hockenberry’s statements
concerning Plaintiff’s personnel issues and Plaintiff’s research
are shielded by qualified privilege; in order to defeat summary
judgment, Plaintiff must provide some evidence that Defendants
acted with malice. See Shreve v. Duke Power Co., 97 N.C. App.
648, 651, 389 S.E.2d 444, 446 (1990) (“The existence of a
privilege creates a presumption that the statement was made in
good faith and without malice.”). Defendant Hockenberry has
established the elements of qualified privilege; the burden then
shifts to Plaintiff to prove actual malice. See Towne v. Cope,
32 N.C. App. 660, 664, 233 S.E.2d 624, 627 (1977).
Plaintiff does not, however, create a genuine issue of
material fact with respect to whether Defendant Hockenberry made
these statements in good faith. Plaintiff submits only her
deposition in support of her allegations. In particular
Plaintiff states that “Marilyn Hockenberry said I had very wrong
relationship, very difficult relationship with others, and I
made some violations on my research . . . Hockenberry was really
- 29 -
concern about my research activity.” (Cho Dep. (Doc. 34-1) at
127.) This is not enough, considered in the context of a one-onone performance review, to rise to the level of bad faith or
actual malice. See Phillips, 117 N.C. App. at 278, 450 S.E.2d at
756.
Plaintiff also offers no evidence to demonstrate that
Defendant Hockenberry submitted the report, concerning whether
Plaintiff showed sensitive data to a PhD student, to the IRB in
bad faith. See Shreve, 97 N.C. App. at 651, 389 S.E.2d at 446.
Plaintiff only provides her deposition testimony that Adams told
her in an email that Adams was “very sorry” and that it was not
her who reported Plaintiff to the IRB. (Cho Dep. (Doc. 34-1) at
129.) As noted above, however, the court will not consider
inadmissible hearsay on a summary judgment motion. Md. Highways
Contractors Ass’n, 933 F.2d at 1251. Plaintiff therefore offers
nothing but her own testimony that this report was made in bad
faith or with actual malice.
Defendant Hockenberry’s statements to Plaintiff during the
performance review and about Plaintiff’s research to the Office
of Audit, Risk and Compliance and the IRB were therefore
“limited in . . . scope to [her] purpose,” were done on “a
proper occasion,” and “publi[shed] in a proper manner and to
proper parties only.” Harris, 102 N.C. App. at 331, 401 S.E.2d
at 850. Because Defendant Hockenberry’s statements are
- 30 -
privileged, and Plaintiff fails to prove actual malice or a lack
of good faith, Plaintiff fails to create a genuine issue of
material fact that these statements are defamatory.
3.
Other Statements Defendant Hockenberry
Purportedly Made
Plaintiff offers three other examples of defamatory
comments made to colleagues. First, in Plaintiff’s words, “Most
important first is the first meeting and called everybody and
just treat me as a really wrongful researcher, I do this and I
did this, that’s all first fabrication . . . .” (Cho Dep. (Doc.
34-1) at 137.) In a second example, Plaintiff submits that
Defendant Hockenberry said “that [Plaintiff is a] very bad
person and very difficult to relate – have a relationship with,
and my research all projects are not – what I have done is
really concern, and just be careful about June Cho.” (Id. at
139.) Third and finally, Plaintiff asserts that “Hockenberry
advise Im, just away from June Cho and nothing will help you if
you keep that relationship.” (Id. at 141.)
Regarding the first statement, Plaintiff submits nothing
more than that bare assertion of what Defendant Hockenberry
said. Defendant Hockenberry’s statement, on its face, does not
raise a genuine issue of material fact as to whether it
“impeaches the plaintiff in h[er] trade, business, or
profession.” Boyce & Isley, PLLC, 153 N.C. App. at 29–30, 568
- 31 -
S.E.2d at 898. The only part of that allegation that could be
considered defamatory — “wrongful researcher” — describes the
manner in which Plaintiff believes she was treated, not what any
Defendant said. This statement therefore is not defamatory as a
matter of law.
Plaintiff also asserts that Defendant Hockenberry told
Plaintiff’s colleagues that Plaintiff is a “very bad person and
very difficult to relate – have a relationship with.” (Cho Dep.
(Doc. 34-1) at 139.) Plaintiff fails, however, to provide any
other facts to support this assertion. She does not list to whom
these statements were made nor any specific occasions when these
statements were made. Without more, 11 this assertion does not
rise to the level of specific facts sufficient to create a
genuine issue of material fact. See Richmond, Fredericksburg &
Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.
1991).
As to the third statement, Plaintiff offers as evidence a
statement Defendant Hockenberry made to Dr. Im around May 2018,
in which she told Dr. Im to stay away from Plaintiff “and
11
Plaintiff fails to present any facts as to what may have
been specifically said. The allegations that Plaintiff is a “bad
person” and “difficult to . . . have a relationship with,”
standing alone, are personal opinions, not slanderous
statements. See Daniels v. Metro Magazine Holding Co., 179 N.C.
App. 533, 539, 634 S.E.2d 586, 590 (2006) (“Rhetorical hyperbole
and expressions of opinions not asserting provable facts are
protected speech.”).
- 32 -
nothing will help you if you keep that relationship.” (Cho Dep.
(Doc. 34-1) at 141–42.) Because neither party explicitly
addressed this statement in their original briefs, this court
requested supplemental briefing on whether this statement is
defamatory as a matter of law, and whether this statement would
be admissible in evidence as to comport with Federal Rule of
Civil Procedure 56(c)(2). (Doc. 35.) Both parties filed briefs
in response. (Docs. 36, 37.)
Plaintiff contends that this statement is admissible and
defamatory. Plaintiff cites four exceptions to the Federal Rules
of Evidence’s general prohibition on hearsay: (1) that Rule 801
allows “a statement made by an employee on an issue within the
scope of his/her employment”; (2) that it was an excited
utterance under Rule 803; (3) that it was evidence of a thenexisting emotional condition of Defendant Hockenberry under Rule
803; and (4) that it falls within Rule 807’s residual exceptions
clause. (Pl.’s Supplemental Brief (Doc. 36) at 4–5.) The court
finds that none of these exceptions apply here.
For a double-hearsay statement to be admitted, there must
be an applicable exception for each level of hearsay. Fed. R.
Evid. 805. The statement at issue here is double hearsay: the
first level is what someone told Plaintiff and the second level
is what Defendant Hockenberry said to Dr. Im. Plaintiff has not
clarified where she heard this statement from, therefore this
- 33 -
court cannot say whether there is an applicable hearsay
exception for that recitation of Defendant Hockenberry’s
statement. Plaintiff only states that “[o]ne may not expect the
statement to have been addressed by Dr. Im in the statement
presented previously,” (id. at 5), but this does not clarify
whether Dr. Im was the way Plaintiff heard about Defendant
Hockenberry’s alleged statement. Nevertheless, Plaintiff has not
provided an exception for what the court can only guess is Dr.
Im, or another Duke employee, allegedly telling Plaintiff what
Defendant Hockenberry said. 12 Because this is inadmissible double
hearsay, and Plaintiff has failed to demonstrate how this
statement might be admissible at trial, the court may not
consider it on Defendants’ motion for summary judgment.
Plaintiff thus does not create a genuine issue of material fact
as to whether this statement is defamatory.
4.
Defendant Hockenberry Did Not Defame Plaintiff as
a Matter of Law
Because Plaintiff’s evidence with regard to statements
about Plaintiff’s alleged violence and other statements made to
Plaintiff’s colleagues is inadmissible, and the statements made
during Plaintiff’s annual review and to the IRB and the Office
12
If it was a Duke employee who told Plaintiff what
Defendant Hockenberry allegedly said, the party-opponent’s
employee hearsay exception under Fed. R. Evid. 801(d)(2)(D)
would not apply because Plaintiff is not suing Duke for
defamation.
- 34 -
of Audit, Risk and Compliance are protected by qualified
privilege, Plaintiff fails to create a genuine issue of material
fact for these statements.
Plaintiff’s claim for an injunction against Defendant
Hockenberry is based upon the same facts this court finds
insufficient to establish a claim on the merits. The claim for a
preliminary injunction will be denied as a matter of law.
B.
Tortious Interference with Contract
Plaintiff alleges Defendant Hockenberry interfered with her
contract with Duke and raises a claim of tortious interference
with contract under North Carolina law. (Compl. (Doc. 7) at 3.)
Specifically, she alleges that Defendant Hockenberry reported
alleged protocol violations to the IRB and requested an audit,
and that this was done intentionally to interfere with
Plaintiff’s contract. (Id. at 4.)
To prevail on a tortious interference with contract claim
under North Carolina law, a plaintiff must show: “(1) the
existence of a valid contract between plaintiff and a third
party; (2) knowledge by defendant of the contract; (3) acts by
defendant to intentionally induce the third party not to perform
the contract; (4) defendant's acts were committed without
justification; and (5) actual damage to the plaintiff.” Barker,
136 N.C. App. at 462, 524 S.E.2d at 826. “A plaintiff may
maintain a claim for tortious interference with contract even if
- 35 -
the employment contract is terminable at will.” Bloch v. Paul
Revere Life Ins. Co., 143 N.C. App. 228, 239, 547 S.E.2d 51, 59
(2001). “Bad motive is the essence of a claim for tortious
interference with contract.” Id.
Here, elements one and two are satisfied, which Defendants
do not dispute: There was a valid contract between Plaintiff and
Duke, and Defendant Hockenberry knew of this contract. (Defs.’
Br. (Doc. 21) at 3, 22.) With regard to the third element — acts
by defendant to intentionally induce the third party not to
perform the contract — Defendant Hockenberry contests that she
induced Duke not to renew Plaintiff’s contract. (Defs.’ Reply
(Doc. 27) at 12.)
The question for this court, therefore, is whether an issue
of material fact exists that could cause a reasonable juror to
find that Defendant Hockenberry wrongfully induced Duke to not
renew Plaintiff’s contract. “Inducement” is defined as “[t]he
act or process of enticing or persuading another person to take
a certain course of action.” Inducement, Black's Law Dictionary
(11th ed. 2019). This court finds as follows: (1) that Plaintiff
fails to submit facts which are admissible to establish any
inducement by Defendant Hockenberry; and (2) even if Defendant
Hockenberry induced Duke not to renew Plaintiff’s contract, that
inducement was not wrongful because Defendant Hockenberry
established that she is not an outsider to the contract.
- 36 -
While Plaintiff submits evidence that Defendant
Hockenberry, by reporting alleged protocol violations to the IRB
and requesting an audit, set events in motion that culminated in
Duke not renewing Plaintiff’s contract, (Hockenberry Decl. (Doc.
20-3) ¶¶ 13, 15, 17; Broome Decl. (Doc. 20-4) ¶ 4), Plaintiff
does not submit sufficient evidence that Defendant Hockenberry’s
acts were intended to “entic[e] or persuad[e]” Duke not to
perform the contract. Plaintiff only asserts that Defendant
Hockenberry wrote Plaintiff’s termination letter, which was
signed by Broome. (Cho Dep. (Doc. 34-1) at 107–08.) She contends
that “Dr. Im told [Plaintiff] that a physician had told her that
Dr. Hockenberry was asked to resign because she had done
something without the Dean’s permission.” 13 (Id. at 108.)
This assertion cannot serve as a basis for finding a
genuine issue of material fact because it is predicated on
13
Plaintiff’s full statement concerning this incident is as
follows:
I thought that decision made by Marilyn Hockenberry
rather than Dean Broome, because first, Dean Broome is
traveling, and second, that there is evidence that
when Eun-Ok Im had interview with medical doctors
before becoming new ADR, the medical doctor told Im,
Do you know why Marilyn Hockenberry has to retire, and
Im said, I don’t know, I don’t have any idea. And then
medical doctor ask Im, Go to Marilyn Hockenberry and
ask her why she has to retire. And Im said, How can I
ask? And the medical doctor said, She did something
without Dean permission.
(Cho Dep. (Doc. 34-1) at 107–08.)
- 37 -
inadmissible double hearsay, as there are no applicable
exceptions for either statement, neither Im’s nor the
physician’s. As noted above, the court will not consider
inadmissible hearsay on a summary judgment motion. Md. Highways
Contractors Ass’n, 933 F.2d at 1251. Plaintiff’s assertion that
Defendant Hockenberry essentially took matters into her own
hands to fire Plaintiff is based entirely on what Dr. Im told
Plaintiff, and what a doctor told Dr. Im. Both levels of this
assertion are based on inadmissible hearsay. Plaintiff submits
no other evidence tending to prove Defendant Hockenberry forged
Plaintiff’s termination letter, therefore, the court will not
consider this statement in determining whether Defendant
Hockenberry induced Duke to end Plaintiff’s contract.
Even if the court were to find that Defendant Hockenberry
had induced Duke not to renew Plaintiff’s contract, Defendant
Hockenberry was justified in doing so under the fourth element
of tortious interference, concerning whether a defendant was
justified in interfering with a contract.
In arguing that Defendant Hockenberry would have been
justified in interfering with Plaintiff’s contract, Defendants
argue that Defendant Hockenberry was a non-outsider to
Plaintiff’s contract with Duke. With regard to the justification
requirement, “[w]hether a defendant is justified in interfering
with a plaintiff’s contract depends upon ‘the circumstances
- 38 -
surrounding the interference, the actor's motive or conduct, the
interests sought to be advanced, the social interest in
protecting the freedom of action of the actor[,] and the
contractual interests of the other party.’” Bloch, 143 N.C. App.
at 239-40, 547 S.E.2d at 59 (quoting Robinson, Bradshaw &
Hinson, P.A. v. Smith, 129 N.C. App. 305, 317, 498 S.E.2d 841,
850 (1998)). A non-outsider is one who “though not a party to
the terminated contract, had a legitimate business interest of
[her] own in the subject matter.” Smith v. Ford Motor Co., 289
N.C. 71, 87, 221 S.E.2d 282, 292 (1976). The status of nonoutsider “is pertinent only to the question of [the]
justification for [defendants’] action.” Id. at 88, 221 S.E.2d
at 292. The burden is on a defendant to prove that they are a
non-outsider and therefore justified in their actions. See
Embree Constr. Group, Inc. v. Rafcor, Inc., 330 N.C. 487, 499,
411 S.E.2d 916, 925 (1992) (holding that justification is an
affirmative defense in tortious interference cases and therefore
the burden is on the defendant).
Generally, “‘non-outsiders’ often enjoy qualified immunity
from liability for inducing their corporation or other entity to
breach its contract with an employee.” Lenzer v. Flaherty, 106
N.C. App. 496, 513, 418 S.E.2d 276, 286 (1992). However, “[t]he
qualified privilege of a non-outsider is lost if exercised for
motives other than reasonable, good faith attempts to protect
- 39 -
the non-outsider’s interests in the contract interfered with.”
Id., 418 S.E.2d at 286.
“In order to hold a ‘non-outsider’ liable for tortious
interference with contract, a plaintiff must establish that the
defendant acted with legal malice, that ‘[s]he does a wrongful
act or exceeds h[er] legal right or authority in order to
prevent the continuation of the contract between the parties.’”
Bloch, 143 N.C. App. at 240, 547 S.E.2d at 60 (quoting Robinson,
Bradshaw & Hinson, 129 N.C. App. at 318, 498 S.E.2d at 851).
Plaintiff claims that “Hockenberry is an outsider to the
subject contract between Plaintiff and Duke,” (Pl.’s Resp. (Doc.
26) at 12), but offers no facts to support that claim. The
undisputed facts establish that Defendant Hockenberry was an
employee of Duke, a party to the contract. The facts are not
disputed that Defendant Hockenberry was Plaintiff’s supervisor
and “had a legitimate business interest of [her] own in the
subject matter” of Plaintiff’s performance of her duties. See
Smith, 289 N.C. at 87, 221 S.E.2d at 292. Indeed, Plaintiff
concedes that it was “[a]bsolutely her job, and that’s her good
reason to give hard time to [Plaintiff],” and that “part of her
role was to protect the university.” (Cho Dep. (Doc. 34-1 at
183–84.) The court will therefore treat Defendant Hockenberry as
a non-outsider to Plaintiff’s contract.
- 40 -
Because the court is treating Defendant Hockenberry as a
non-outsider to Plaintiff’s contract, Plaintiff must establish
Defendant Hockenberry acted with “legal malice” — that she did a
“wrongful act or exceed[ed] h[er] legal right or authority in
order to prevent the continuation of the contract between the
parties.” Bloch, 143 N.C. App. at 240, 547 S.E.2d at 60
(internal quotation marks omitted). Plaintiff submits no
evidence that Defendant Hockenberry committed a “wrongful act”
or exceeded her authority in reporting alleged protocol breaches
to the relevant authority within the Duke administration.
Plaintiff admits that it was “reasonable for [Defendant
Hockenberry] to raise concerns about work performance or
perceived security issues or perceived protocol deviations,”
that it was “[a]bsolutely her job, and that’s her good reason to
give hard time to [Plaintiff],” and that “part of her role was
to protect the university.” (Cho Dep. (Doc. 34-1 at 183–84.)
Plaintiff also admits that it was within the scope of Defendant
Hockenberry’s role to request an audit. (Id. at 78.) Plaintiff
therefore does not raise a genuine issue of material fact as to
whether Defendant Hockenberry was justified in reporting
potential protocol breaches.
Because there is no evidence that Defendant Hockenberry
intentionally or wrongfully induced Duke not to renew
Plaintiff’s contract, the court need not address whether
- 41 -
Plaintiff sustained actual damages from Duke not renewing her
contract. Plaintiff fails to raise a genuine issue of material
fact as to whether Defendant Hockenberry tortiously interfered
with her contract with Duke, and therefore Defendants’ motion
for summary judgment as to this claim will be granted.
C.
National Origin Discrimination and Retaliation
Plaintiff fails to submit any direct evidence of
discrimination and fails to make out a prima facie case of
discrimination. For those reasons, Defendants’ motion for
summary judgment as to this claim will be granted.
1.
National Origin Discrimination
Plaintiff has not submitted direct evidence of intentional
discrimination, and both parties agree Plaintiff is proceeding
upon a circumstantial case of discrimination under Title VII.
(See Defs.’ Br. (Doc. 21) at 14–15; Pl.’s Br. (Doc. 26) at 6.)
In the absence of any direct evidence of discrimination,
the Fourth Circuit applies the McDonnell Douglas framework to
employment discrimination cases. Goode v. Cent. Va. Legal Aid
Soc’y, Inc., 807 F.3d 619, 626 (4th Cir. 2015). Under the
McDonnell Douglas framework, a plaintiff “has the burden of
proving by the preponderance of the evidence a prima facie case
of discrimination.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 253 (1981). To establish a prima facie case of
discrimination, the plaintiff must demonstrate “(1) membership
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in a protected class; (2) satisfactory job performance; (3)
adverse employment action; and (4) different treatment from
similarly situated employees outside the protected class.”
Goode, 807 F.3d at 626 (quoting Coleman v. Md. Court of Appeals,
626 F.3d 187, 190 (4th Cir. 2010)).
After a plaintiff successfully makes out a prima facie case
of discrimination, “the defendant may respond by producing
evidence that it acted with a legitimate, nondiscriminatory
reason,” at which point the “plaintiff may adduce evidence
showing that the defendant’s proffered reason was mere pretext
and that [national origin] was the real reason for the
defendant’s less favorable treatment of the plaintiff.” Williams
v. Staples, Inc., 372 F.3d 662, 667 (4th Cir. 2004). While the
burden shifts back and forth between the plaintiff and
defendant, “[t]he ultimate burden of persuading the trier of
fact that the defendant intentionally discriminated against the
plaintiff remains at all time with the plaintiff.” Tex. Dep’t of
Cmty. Affairs, 450 U.S. at 253.
Plaintiff satisfies the first prong, as Plaintiff is a
member of a protected class as a Korean-born person. (Cho Dep.
(Doc. 34-1) at 10.) Even assuming Plaintiff has established she
satisfactorily performed her job and was terminated, Plaintiff
has failed to present any evidence that other similarly situated
individuals were treated differently. Plaintiff does not address
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the similarly situated requirement in her response outside of
her recitation of the prima facie requirements, (Pl.’s Resp.
(Doc. 26) at 6–7); Plaintiff submits no evidence, admissible or
not, of similarly situated comparators in her deposition or in
any of the other evidence she submits, including her EEOC
Charge, a Duke interrogatory, and a deposition of her husband.
There is no genuine issue of material fact if the nonmoving
party fails to make a sufficient showing of an essential element
of its case as to which it would have the burden of proof at
trial. See Celotex, 477 U.S. at 322–23.
In the absence of any evidence that individuals outside the
protected class were treated differently in their employment,
the facts submitted do not present an issue of fact that
Plaintiff’s termination was based upon improper discrimination.
Because Plaintiff has failed to make a sufficient showing on an
essential element of the prima facie case, Plaintiff fails to
raise a genuine dispute as to any material fact with regard to
whether Defendants discriminated against her. Plaintiff’s claim
for national origin discrimination must fail.
2.
Retaliation
Title VII prohibits an employer from “retaliating against
an employee for complaining about prior discrimination.” Foster
v. Univ. of Md.–E. Shore, 787 F.3d 243, 249 (4th Cir. 2015). To
establish a prima facie case of retaliation, “a plaintiff must
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prove (1) that she engaged in a protected activity, as well as
(2) that her employer took an adverse employment action against
her, and (3) that there was a causal link between the two
events.” Boyer–Liberto v. Fontainebleau Corp., 786 F.3d 264, 281
(4th Cir. 2015) (internal quotation marks omitted). Filing an
EEOC charge is a protected activity. 42 U.S.C. § 2000e–3(a).
Title VII retaliation claims require a showing that the action
would not have happened but for the plaintiff's protected
activity. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338,
360 (2013).
Retaliatory actions “need not ‘affect the terms and
conditions of employment’” but must be “‘materially
adverse’[ ]such that they ‘might have dissuaded a reasonable
worker’ from engaging in protected activity.” Strothers v. City
of Laurel, 895 F.3d 317, 327 (4th Cir. 2018) (quoting Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64, 68 (2006)).
Once an employee makes out a prima facie case, the employer
bears the burden of producing a legitimate nonretaliatory reason
for the materially adverse action. See id. at 328. The employee
then bears the burden of showing, by a preponderance of the
evidence, that the employer's stated rationale is a pretext for
retaliation. Id.
Title VII makes it “an unlawful employment practice for an
employer . . . to discriminate against any individual with
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respect to [her] compensation, terms, conditions, or privileges
of employment, because of such individual's race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).
Title VII also prohibits retaliation by a private employer
against an employee because the employee has (1) “made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing” under Title VII or (2)
“opposed any practice made an unlawful employment practice by”
Title VII. 42 U.S.C. § 2000e-3(a). These are referred to as the
participation clause and the opposition clause, respectively.
Under the opposition clause, “an employee is protected when she
opposes not only . . . employment actions actually unlawful
under Title VII but also employment actions she reasonably
believes to be unlawful.” Boyer-Liberto, 786 F.3d at 282
(alterations and internal quotation marks omitted); Strothers,
895 F.3d at 327. This opposition activity, however, is only
protected if an employee's subjective belief is also
“objectively reasonable in light of the facts.” Peters v.
Jenney, 327 F.3d 307, 321 (4th Cir. 2003); see also Strothers,
895 F.3d at 327.
Plaintiff alleges that Duke retaliated against her for
filing her grievance report. (Compl. (Doc. 7) at 4–5.)
Plaintiff’s grievance report, however, was focused on Defendant
Hockenberry’s managerial style: that Defendant Hockenberry
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tended to micromanage, that she needed to be copied on emails,
and that she tended to only point out Plaintiff’s failures and
did not compliment Plaintiff when she succeeded. (Cho Dep. (Doc.
34-1) at 89.) Title VII only provides protection against
discrimination on the basis of “race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2(a)(1); see also Burlington
N. & Santa Fe Ry., 548 U.S. at 68 (citing, with approval, a
treatise that notes that “personality conflicts at work that
generate antipathy and snubbing by supervisors and co-workers
are not actionable” (internal quotation marks omitted)). As
such, Plaintiff could not have had a reasonable belief that the
conduct she was opposing violated Title VII, because she was not
even complaining of discrimination: Plaintiff was complaining
about Defendant Hockenberry’s management style. This grievance
therefore does not constitute protected activity.
Plaintiff submits no other evidence or argument that
Defendants retaliated against her for any other activity.
Plaintiff thus fails to meet the first element of the prima
facie case of retaliation, that she was engaged in protected
activity. There is no genuine issue of material fact if the
nonmoving party fails to make a sufficient showing on an
essential element of its case as to which it would have the
burden of proof at trial. See Celotex, 477 U.S. at 322–23.
Because Plaintiff cannot make out a prima facie case of
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retaliation, Plaintiff fails to raise a genuine issue of
material fact as to whether Defendants retaliated against her
for her national origin discrimination claims. The court will
grant Defendant’ motion for summary judgment on this claim.
D.
North Carolina Public Policy and Statutory Claims
Plaintiff also claims that Defendant Duke’s conduct
violated the public policy of the State of North Carolina and
N.C. Gen. Stat. § 143-422.1 et seq. (Compl. (Doc. 7) ¶ 40.)
North Carolina Equal Employment Practices Act (“NCEEPA”),
the North Carolina state law on which Plaintiff bases this
claim, states:
It is the public policy of this State to protect
and safeguard the right and opportunity of all persons
to seek, obtain and hold employment without
discrimination or abridgement on account of race,
religion, color, national origin, age, sex or handicap
by employers which regularly employ 15 or more
employees.
N.C. Gen. Stat. § 143-422.2(a). North Carolina courts, when
interpreting NCEEPA, “look to federal decisions for guidance in
establishing evidentiary standards and principles of law to be
applied in discrimination cases.” Abels v. Renfro Corp., 335
N.C. 209, 218, 436 S.E.2d 822, 827 (1993) (quoting Dep’t of
Corr. v. Gibson, 308 N.C. 131, 136, 301 S.E.2d 78, 82 (1983));
see also Donovan v. Bragg Mut. Fed. Credit Union, No. 5:18-CV148-FL, 2019 WL 189000, at *5 (E.D.N.C. Jan. 14, 2019) (applying
Title VII doctrine to a claim brought under NCEEPA). NCEEPA thus
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creates a private state law cause of action for “wrongful
discharge.” Smith v. First Union Nat’l Bank, 202 F.3d 234, 247
(4th Cir. 2000).
This court, in discussing Plaintiff’s claim of national
origin discrimination under Title VII above, has addressed
Plaintiff’s NCEEPA wrongful discharge claim. Because the court
must apply the same facts and legal standard to Plaintiff’s
NCEEPA claim as were applied to her Title VII claim, see Abels,
335 N.C. at 218, 436 S.E.2d at 827, Defendants’ motion for
summary judgment as to Plaintiff’s North Carolina claims must be
granted.
IV.
CONCLUSION
Because Plaintiff fails to raise a genuine dispute as to
any material fact for any of her four claims, summary judgment
is therefore appropriate.
For the foregoing reasons, this court finds that
Defendants’ motion for summary judgment should be granted.
IT IS THEREFORE ORDERED that Defendants’ Motion for Summary
Judgment, (Doc. 20), is GRANTED.
IT IS FURTHER ORDERED that this case is DISMISSED WITH
PREJUDICE.
A judgment in accordance with this Memorandum Opinion and
Order will be entered contemporaneously herewith.
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This the 21st day of January, 2020.
__________________________________
United States District Judge
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