Nicholson v. Mecklenburg County

Filing 37

ORDER and NOTICE OF HEARING granting in part and denying in part 24 Motion for Summary Judgment. IT IS FURTHER ORDERED that the parties shall submit their Joint Pretrial Submissions as required under the Case Management Ord er (Doc. No. 9) in this case no later than February 27, 2019. TAKE NOTICE that the Court will conduct a pre-trial conference on the morning of docket call, March 4, 2019, at 9:00 a.m. in Courtroom #1-1 of the Charles R. Jonas Federal Building, 401 W. Trade Street, Charlotte, North Carolina 28202. Signed by Chief Judge Frank D. Whitney on 2/13/19. (clc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:18-cv-00167-FDW-DCK
NATALIE NICHOLSON,
Plaintiff,
v.
MECKLENBURG COUNTY,
Defendant.

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ORDER
and
NOTICE OF HEARING

THIS MATTER is before the Court on Defendant’s Motion for Summary Judgment, (Doc.
No. 24), filed January 7, 2019.1 Plaintiff responded in objection to the motion on January 28,
2019, and Defendant submitted a reply brief on February 4, 2019. This matter is now ripe for
consideration. The Court finds that given the arguments of the parties and the proximity to trial, a
hearing is not necessary and would not aid the Court in reaching its decision on this record. For
the reasons below, the Court GRANTS IN PART and DENIES IN PART Defendant’s motion.
In sum, Defendant moves for summary judgment on Plaintiff’s remaining three causes of
action: 1) claim for violation of 42 U.S.C. § 1983 based on allegations that during Plaintiff’s
employment with Defendant, she was retaliated against for exercising her free speech rights under
the U.S. Constitution; (2) related claim for violation of the North Carolina Constitution based on
allegations of free speech retaliation; and 3) claim for violation of the North Carolina
Whistleblower Protection Act.

1

The Court notes that in support of this motion, Defendant, with leave of Court (Doc. No. 26), filed both a sealed
memorandum (Doc. No. 25) and an unsealed, redacted memorandum (Doc. No. 27). Notwithstanding, the Court sees
no basis to seal this Order because it does not contain any of the information that formed the basis for the motion to
seal or the Court’s order granting that motion.

The Court first turns to Plaintiff’s claims under the United States Constitution and the
North Carolina Constitution.2 After reviewing the pleadings, proffered evidence, and applicable
law, the Court finds Plaintiff has made a sufficient, albeit minimal, evidentiary showing that a
question of fact exists to resolve these claims. Moreover, Defendant has failed to demonstrate it
is entitled to judgment as a matter of law on these claims. The law on these claims is well-settled:
“Protection of the public interest in having debate on matters of public importance
is at the heart of the First Amendment.” McVey v. Stacy, 157 F.3d 271, 277 (4th
Cir. 1998) (citing Pickering v. Bd. of Educ., 391 U.S. 563, 573, 88 S.Ct. 1731, 20
L.Ed.2d 811 (1968)).
To resolve Plaintiff's appeal, we start by considering the First Amendment rights of
public employees. Public employees do not “relinquish First Amendment rights to
comment on matters of public interest by virtue of government employment.”
Connick, 461 U.S. at 140, 103 S.Ct. 1684. To the contrary, the Supreme Court has
long recognized
that public employees are often the members of the community who are
likely to have informed opinions as to the operations of their public
employers, operations which are of substantial concern to the public. Were
they not able to speak on these matters, the community would be deprived
of informed opinions on important public issues.
City of San Diego v. Roe, 543 U.S. 77, 82, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004)
(per curiam) (citing Pickering, 391 U.S. at 572, 88 S.Ct. 1731). To that end, the
Supreme Court has repeatedly “underscored the ‘considerable value’ of
‘encouraging, rather than inhibiting, speech by public employees. For government
employees are often in the best position to know what ails the agencies for which
they work.’” Hunter v. Town of Mocksville, 789 F.3d 389, 396 (4th Cir. 2015)
(quoting Lane v. Franks, ––– U.S. ––––, 134 S.Ct. 2369, 2377, 189 L.Ed.2d 312
(2014)). As such, we do not take lightly “[o]ur responsibility ... to ensure that
citizens are not deprived of fundamental rights by virtue of working for the
government.” Connick, 461 U.S. at 147, 103 S.Ct. 1684.

“The standards for free speech retaliation claims under the state constitution are the same as those for free speech
claims under the federal constitution.” Penley v. McDowell Cty. Bd. of Educ., No. 114CV00170MOCDLH, 2016
WL 4435695, at *7 (W.D.N.C. Aug. 19, 2016), (quoting Sheaffer v. Cty. of Chatham, 337 F. Supp. 2d 709, 729
(M.D.N.C. 2004) (collecting cases); citing Munn-Goins v. Bd. of Trustees of Bladen Cmty. Coll., 658 F. Supp. 2d
713, 730 (E.D.N.C. 2009), aff'd, 393 Fed.Appx. 74 (4th Cir. 2010) (“The standards for free-speech claims under the
North Carolina Constitution are substantially identical to those for free-speech claims under the federal
constitution.”)), aff'd, 876 F.3d 646 (4th Cir. 2017)
2

“That being said, precedent makes clear that courts must also consider ‘the
government's countervailing interest in controlling the operation of its
workplaces.’” Hunter, 789 F.3d at 397 (quoting Lane, 134 S.Ct. at 2377). Just as
there is a “public interest in having free and unhindered debate on matters of public
importance,” Pickering, 391 U.S. at 573, 88 S.Ct. 1731, “[t]he efficient functioning
of government offices is a paramount public interest,” Robinson v. Balog, 160 F.3d
183, 189 (4th Cir. 1998). Therefore, a public employee “by necessity must accept
certain limitations on his or her freedom.” Garcetti v. Ceballos, 547 U.S. 410, 418,
126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). In particular, under the balancing test
developed by the Supreme Court in Pickering and Connick, “the First Amendment
does not protect public employees when their speech interests are outweighed by
the government's interest in providing efficient and effective services to the public.”
Lawson v. Union Cty. Clerk of Court, 828 F.3d 239, 247 (4th Cir. 2016).
Regarding Plaintiff's retaliation claim, “a public employer contravenes a public
employee's First Amendment rights when it discharges . . . ‘[the] employee . . .
based on the exercise of’ that employee's free speech rights.” Ridpath v. Bd. of
Governors Marshall Univ., 447 F.3d 292, 316 (4th Cir. 2006) (alteration in original)
(quoting Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000)). To
state a claim under the First Amendment for retaliatory discharge, a plaintiff must
satisfy the three-prong test set forth in McVey v. Stacy, 157 F.3d 271 (4th Cir.
1998). In particular, the plaintiff must show: (1) that he was a “public employee ...
speaking as a citizen upon a matter of public concern [rather than] as an employee
about a matter of personal interest;” (2) that his “interest in speaking upon the
matter of public concern outweighed the government's interest in providing
effective and efficient services to the public;” and (3) that his “speech was a
substantial factor in the employer's termination decision.” 157 F.3d at 277–78.
Grutzmacher v. Howard Cty., 851 F.3d 332, 341–42 (4th Cir.), cert. denied sub nom. Buker v.
Howard Cty., Md., 138 S. Ct. 171, 199 L. Ed. 2d 42 (2017).
Whether the speech is protected by the First Amendment is a question of law for the Court,
but whether it was a substantial factor in the employer’s decision is a question of fact for a jury.
Lane v. Anderson, 660 F. App’x 185, 191 (4th Cir. 2016). As an initial matter, the Court finds the
evidence shows Plaintiff engaged in protected speech by speaking as a citizen on a matter of public
concern. Plaintiff, a nurse licensed by the North Carolina Board of Nursing, had information on
matters of public concern, including the handling and care of patient medical records, and notified
various levels of management about her concerns related to patient medical records not properly

being stored or processed, potentially the detriment of the health and welfare of citizens.
Defendant contends Plaintiff had other “motivations”—largely to complain about her personal
conditions of employment—in expressing her concerns; however, the Court finds such argument
unpersuasive here in light of the full record before the Court.
As to the other elements of these claims, a review of the parties’ summary of evidence and
facts make clear a ruling on summary judgment would require a determination as to credibility and
weight of the evidence, which is not appropriate at this stage. Accordingly, summary judgment
for Defendant on Plaintiff’s free speech claims is denied. These claims shall be resolved by a jury
during the Court’s next trial term.
As to Plaintiff’s third claim, the Court finds that Defendant is entitled to summary judgment
on Plaintiff’s claim for violation of the North Carolina Whistleblower Protection Act for the
reasons stated in Defendant’s Memorandum in Support of its Motion for Summary Judgment as
to the applicability of the statute upon which Plaintiff seeks relief, 3 as well as its reply brief. (Docs.
Nos. 25, 33.) Defendant submitted uncontroverted evidence to show Defendant County created a
consolidated human services agency to carry out the functions of the local health department, the
department of social services, and the area mental health authority. (Doc. No. 25-4.) Accordingly,
as a matter of law, Plaintiff fails to qualify as a state employee or otherwise meet the statutory
requirements to make the Act applicable to her. See N.C. Gen. Stat. Ann. § 126-5 (“An employee
of a consolidated county human services agency created pursuant to G.S. 153A-77(b) is not
considered an employee of an entity listed in this subdivision.”); Johnson v. Forsyth County, 743

This ruling expressly excludes the portion of Defendant’s argument referenced in the initial memorandum in support
of its motion, (Doc. No. 25), in the last two sentences of footnote 3 on page 18 regarding causation and the citation to
the Hubbard v. N.C. State Univ., 789 S.E.2d 915, 918 (N.C. Ct. App. 2016). As noted above, the causation issue shall
be determined by a jury in evaluating the two constitutional claims surviving summary judgment. The Court therefore
does not incorporate by reference that portion of Defendant’s argument.
3

S.E.2d 227, 229 (N.C. Ct. App. 2013). Plaintiff presents neither evidence nor sufficient argument
and applicable law to rebut Defendant’s evidence.
IT IS THEREFORE ORDERED that Defendant’s Motion for Summary Judgment (Doc.
No. 24) is GRANTED IN PART AND DENIED IN PART.
IT IS FURTHER ORDERED that the parties shall submit their Joint Pretrial Submissions
as required under the Case Management Order (Doc. No. 9) in this case no later than February
27, 2019.
IT IS FURTHER ORDERED that trial in this matter shall be limited to a total of 7 hours
per side for their presentation of evidence and argument to the jury, including opening statements,
direct examination of the party’s own witnesses, cross-examination of the opposing party’s
witnesses, and closing arguments. Jury selection, including voir dire of the jury, is excluded from
the time limitation. Objections and sidebars are also excluded from the time limitation, unless the
Court determines in its discretion during the course of trial to begin counting unnecessary sidebars
against the party requesting them.
TAKE NOTICE that the Court will conduct a pre-trial conference on the morning of docket
call, March 4, 2019, at 9:00 a.m. in Courtroom #1-1 of the Charles R. Jonas Federal Building, 401
W. Trade Street, Charlotte, North Carolina 28202.
IT IS SO ORDERED.

Signed: February 13, 2019