Gerity v. N.C. Dep't of Health & Human Servs.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA15-843

Filed: 7 June 2016

Office of Administrative Hearings, No. 14 OSP 02904

KEVIN GERITY, Petitioner,

v.

NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Respondent.

Appeal by petitioner from Final Decision entered 12 March 2015 by Judge Fred

Gilbert Morrison, Jr. in the Office of Administrative Hearings. Heard in the Court of

Appeals 10 February 2016.

Law Offices of Michael C. Byrne, by Michael C. Byrne, for petitioner.

Attorney General Roy Cooper, by Assistant Attorney General Joseph E. Elder,

for respondent.

ELMORE, Judge.

The issue on appeal is whether Kevin Gerity (petitioner) is entitled to relief

under the Whistleblower Act, N.C. Gen. Stat. § 126-84 et seq. Senior Administrative

Law Judge Fred Gilbert Morrison, Jr. (ALJ) entered a final decision concluding that

petitioner is not as he failed to prove any of the three elements of a claim. We

conclude that petitioner failed to establish that he reported protected activity, and

thus we affirm.

I. Background

GERITY V. NCDHHS

Opinion of the Court

In December 2013, the North Carolina Department of Health and Human

Services (DHHS) decided to pursue termination of petitioner’s employment, and

petitioner subsequently submitted a letter of resignation. Petitioner filed the instant

action in April 2014 alleging that he was threatened with discharge because he made

reports that constituted protected activity under the Whistleblower Act. The events

preceding, as set out in the ALJ’s findings of fact, tend to show the following:

Petitioner worked as an autopsy technician and autopsy facility manager at the Office

of the Chief Medical Examiner (OCME), which is within the Division of Public Health

(DPH) and ultimately under DHHS. In 2010, Dr. Deborah Radisch became Chief

Medical Examiner and hired Dr. Clay Nichols for the position of Deputy Chief

Medical Examiner. Dr. Nichols served as petitioner’s supervisor.

In May 2011, petitioner assisted Dr. Nichols in performing an autopsy on

Terrell Boykin who presented with a gunshot wound to the head and was one of the

apparent victims of a double homicide. An x-ray “was said to indicate what appeared

to be the presence of an item in the brain.” The x-ray was not produced at the hearing.

Neither petitioner nor Dr. Nichols recovered a bullet from the brain or skull cavity

during the autopsy. Petitioner asked Dr. Nichols if he should perform a second x-ray,

and Dr. Nichols instructed petitioner it was not necessary. Dr. Nichols concluded the

autopsy, instructed petitioner to release the body to law enforcement, and returned

to his office. Despite Dr. Nichols’s instruction, petitioner performed a second x-ray,

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which did not show the presence of an object in the brain, and then he released the

body to law enforcement.

As an autopsy technician, petitioner was responsible for cleaning the autopsy

room. Petitioner testified at the hearing that the Boykin autopsy “was the last case

on that table for that day[.]” Petitioner stated that after he washed the cutting board

and started washing the coagulated blood off the autopsy bench, “an object appeared.”

He rinsed off the object, picked it up, and determined it was a round, whole bullet.

Petitioner put it in an evidence bag and called the photographer, William Holloman,

to return to the autopsy room. Petitioner explained to Holloman how he found the

object and asked Holloman to photograph it. When Holloman refused, petitioner took

a picture of the bagged object with his personal cell phone.

Petitioner did not call Dr. Nichols to return to the autopsy room. Instead, he

took the bagged object to Dr. Nichols’s office, which was located on a different level in

the building. Petitioner did not label the evidence bag or document where he found

the object, but he told Dr. Nichols that he found it near the cutting board. Dr. Nichols

took the bagged object but did not mention it in his autopsy report.

On 28 July 2011, petitioner met with Dr. Radisch and informed her that the

Boykin autopsy report “inaccurately stated the bullet exists and is not recovered.”

Dr. Radisch testified that she subsequently reviewed the preliminary autopsy report

and the x-ray but did not discuss them with Dr. Nichols and did not follow up with

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petitioner.

On 9 September 2011, Dr. Nichols sent petitioner an e-mail instructing him

not to use his cell phone to “conduct outside business on OCME time.” Dr. Nichols

also stated, “[Y]our contempt for Dr. Radisch is palpable. This includes a long history

of belligerence, snide remarks and on at least one occasion, openly confrontational

[sic].” Dr. Nichols listed three training classes for petitioner to attend, and concluded,

“I sincerely hope that we can use your years of experience in a constructive manner

for a long time to come.”

Later that morning, petitioner e-mailed Dr. Radisch, OCME administrator Pat

Barnes, and Dr. Lou Turner (Dr. Radisch’s supervisor) stating, “I am formally

requesting a follow up meeting to the conversation we had on July 28, 2011, in

regards to the [Boykin] case I worked with Dr. Nichols.” Petitioner continued, “The

autopsy report released to the public states ‘no bullet was recovered’. This disturbs

me because I personally recovered the bullet in this case and personally handed it to

Dr. Nichols, yet this is not reflected in the final report.” Dr. Radisch forwarded the

e-mail to Dr. Nichols but did not take any additional action.

In September 2013, DHHS leadership learned that the State Bureau of

Investigation (S.B.I.) was investigating the Boykin autopsy. Investigators

interviewed petitioner regarding his role in the autopsy. Around the same time, the

local media reported about understaffing and other problems at the OCME. As a

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result of information discovered during the S.B.I. investigation, the following month

DHHS ordered an internal personnel investigation into the Boykin autopsy.

According to DHHS’s final report submitted to the ALJ, “Petitioner provided detailed

information about the OCME’s unwritten policies, protocols and practices for

evidence collection.” Additionally, he “acknowledged that an autopsy technician

should call the pathologist back into the room upon finding evidence outside the

body.”

In November 2013, DHHS terminated Dr. Nichols’s employment. In December

2013, DHHS decided to pursue termination of petitioner’s employment. On 6

December 2013, Dr. Turner delivered a pre-disciplinary letter to petitioner, which

was signed by DPH Acting Division Director Danny Staley and stated, “This letter is

to notify you that a pre-disciplinary conference has been scheduled for December 9,

2013, at 11:00 a.m. . . . The purpose of this conference is to ensure that the decision

to be made is not based on misinformation and to give you an opportunity to respond.”

On 9 December 2013, petitioner, Mr. Staley, Dr. Turner, and DHHS Human

Resources Manager Greg Chavez attended the pre-disciplinary conference. Mr.

Staley began by stating, “This is your opportunity to give me your side of the story,”

and no decision has been made. Before addressing the content of the pre-disciplinary

letter, petitioner presented a typed resignation letter addressed to Mr. Staley. In the

letter, petitioner stated, “Please accept this letter of resignation effective today,

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December 9, 2013. . . . It is my intention to retire effective January 1, 2014.” Mr.

Staley accepted petitioner’s resignation and sent him a letter that day to confirm. In

April 2014, petitioner filed a petition for a contested case hearing alleging a violation

of the Whistleblower Act. Petitioner filed a prehearing statement on 30 May 2014

stating the following:

[Petitioner] was threatened with discharge and was

constructively discharged from the Respondent because he

made reports that were protected activity under the

Whistleblower Act. These reports were on matters of

public concern that involved (a) substantial and specific

dangers to the public health and safety, specifically

mishandling and incompetence of autopsies [sic] of murder

victims by superiors or colleagues, (b) gross

mismanagement, and (c) gross abuse of authority.

On 7 January 2015, Senior Administrative Law Judge Fred Gilbert Morrison,

Jr. heard arguments, and on 12 March 2015, he entered a final decision concluding

that petitioner was not entitled to relief. Petitioner appeals.

II. Analysis

“It is well settled that in cases appealed from administrative tribunals,

‘[q]uestions of law receive de novo review,’ whereas fact-intensive issues ‘such as

sufficiency of the evidence to support [an agency’s] decision are reviewed under the

whole-record test.’ ” N.C. Dep’t of Env’t & Natural Res. v. Carroll, 358 N.C. 649, 659,

599 S.E.2d 888, 894–95 (2004) (quoting In re Greens of Pine Glen Ltd. P’ship., 356

N.C. 642, 647, 576 S.E.2d 316, 319 (2003)). Under a de novo review, the reviewing

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court “ ‘consider[s] the matter anew[ ] and freely substitutes its own judgment for the

agency’s.’ ” Id. at 660, 599 S.E.2d at 895 (quoting Mann Media, Inc. v. Randolph

Cnty. Planning Bd., 356 N.C. 1, 13–14, 565 S.E.2d 9, 17 (2002)). When applying the

whole record test, however, the reviewing court “ ‘may not substitute its judgment for

the agency’s as between two conflicting views, even though it could reasonably have

reached a different result had it reviewed the matter de novo.’ ” Id. (quoting Watkins

v. N.C. State Bd. of Dental Exam’rs, 358 N.C. 190, 199, 593 S.E.2d 764, 769 (2004)).

If the “findings are supported by substantial evidence—that amount of evidence that

a reasonable mind would accept as adequate to support a decision, the reviewing

court must uphold the . . . decision.” N.C. Dep’t of Corr. v. McNeely, 135 N.C. App.

587, 592, 521 S.E.2d 730, 733 (1999) (citing ACT-UP Triangle v. Comm’n for Health

Sci., 345 N.C. 699, 707, 483 S.E.2d 388, 393 (1997)).

The Whistleblower Act, codified at N.C. Gen. Stat. § 126-84 et seq. (2015),

provides,

(a) It is the policy of this State that State employees shall

be encouraged to report verbally or in writing to their

supervisor, department head, or other appropriate

authority, evidence of activity by a State agency or State

employee constituting:

(1) A violation of State or federal law, rule or regulation;

(2) Fraud;

(3) Misappropriation of State resources;

(4) Substantial and specific danger to the public health and

safety; or

(5) Gross mismanagement, a gross waste of monies, or

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gross abuse of authority.

N.C. Gen. Stat. § 126-84(a) (2015). Furthermore,

[n]o head of any State department, agency or institution or

other State employee exercising supervisory authority

shall discharge, threaten or otherwise discriminate against

a State employee regarding the State employee’s

compensation, terms, conditions, location, or privileges of

employment because the State employee, or a person

acting on behalf of the employee, reports or is about to

report, verbally or in writing, any activity described in G.S.

126-84, unless the State employee knows or has reason to

believe that the report is inaccurate.

N.C. Gen. Stat. § 126-85(a) (2015).

In order to succeed on a claim under the Whistleblower Act, a plaintiff has the

burden of proving by a preponderance of the evidence the following three elements:

“(1) that the plaintiff engaged in a protected activity, (2) that the defendant took

adverse action against the plaintiff in his or her employment, and (3) that there is a

causal connection between the protected activity and the adverse action taken against

the plaintiff.” Newberne v. Dep’t of Crime Control & Pub. Safety, 359 N.C. 782, 788,

618 S.E.2d 201, 206 (2005).

On appeal, petitioner claims that the ALJ erred in concluding that he did not

engage in protected activity for two reasons. First, he argues no evidence supports

the ALJ’s conclusion that his 9 September 2011 e-mail was a “tit for tat.” Petitioner

contends that the Boykin autopsy report was inaccurate or fraudulent, without

further explanation. Second, petitioner states that the Whistleblower Act applies if

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his employer retaliated based on a misapprehension that petitioner reported

protected activity.

We do not find merit in petitioner’s first argument. Although petitioner takes

issue with the ALJ’s “tit for tat” theory, petitioner fails to present any argument on

why the numerous other findings are not supported by substantial evidence or why

the conclusions of law are in error. Likewise, petitioner does not present any

argument on why his allegations constituted any one of the five protected activities

under N.C. Gen. Stat. § 126-84 (2015). In the three-and-a-half pages petitioner

devotes to discussing protected activity in his brief, he cites only one case, from

California, on public policy. “It is not the duty of this Court to supplement an

appellant’s brief with legal authority or arguments not contained therein.” Goodson

v. P.H. Glatfelter Co., 171 N.C. App. 596, 606, 615 S.E.2d 350, 358 (2005) (noting that

the appellant “fail[ed] to cite any legal authority or even a legal definition of the term

ratification in its brief to this Court”).

In its final decision, the ALJ concluded in part,

8. After considering all of the evidence, it is found that

Petitioner failed to show by a preponderance of the

evidence that he found a whole bullet during the Boykin

autopsy. Neither party produced the x-ray, the bagged

object, or any photographs thereof, and the parties offered

conflicting evidence on whether the bagged item consisted

of a whole bullet, a bullet jacket, a bullet fragment, or

something else. It is concluded that Dr. Radisch’s

description of the object as a “piece of copper projectile

jacket” is more credible than Petitioner’s description of a

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“whole bullet,” particularly in light of the autopsy report

which clearly describes a “gaping” exit wound.

9. Even if the object Petitioner said he found was a whole

bullet, it is not clear that Dr. Nichols’ autopsy report was

fraudulent or even inaccurate. Dr. Nichols prepared a

thorough autopsy report that identified Mr. Boykin’s cause

of death and described in considerable detail the entry and

exit wounds made by a bullet. Petitioner claims to have

discovered a bullet and contends that the report was

fraudulent because Dr. Nichols stated that a “bullet exists

and is not recovered.” But although Dr. Nichols’ statement

could be read as an assertion that no one at the OCME

found a bullet, it could also be interpreted as a truthful

assertion that Dr. Nichols did not personally find and

recover a bullet and thus he could not verify or vouch for

one’s recovery. This interpretation is supported by the fact

that the OCME had no rules for how pathologists should

respond to items presented to them outside the autopsy

room, likely because this situation had never arisen before.

10. After considering all of the evidence, it is concluded that

Petitioner’s complaints about the Boykin autopsy

primarily concerned his dissatisfaction with Dr. Nichols’

job performance rather than fraud or a substantial and

specific threat to public safety. Petitioner admitted that he

did not trust Dr. Nichols and that he called Mr. Holloman

to show him that Dr. Nichols’ work was “sloppy.” Dr.

Nichols, in turn, obviously distrusted and was not always

satisfied with Petitioner. The timing of Petitioner’s

complaints about the Boykin autopsy also suggest a kind of

“tit for tat,” with Petitioner complaining about Dr. Nichols’

work in retaliation for Dr. Nichols’ warnings about

Petitioner’s secondary employment and interactions with

others.

In sum, the ALJ concluded that “the greater weight of the evidence does not support

a conclusion that Petitioner engaged in protected activity when he reported his

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concerns about the Boykin autopsy to his superiors at the OCME[.]” We agree.

The evidence supports the ALJ’s findings that petitioner knew under known

protocol and work rules that he should have called Dr. Nichols, the pathologist, to

return to the autopsy room so that Dr. Nichols could properly collect and bag any

newly discovered evidence. It is evident from the record that petitioner and Dr.

Nichols disagreed on what to do with the later-found object. However, Dr. Nichols’s

decision not to mention the object—presented to him in his office, after the autopsy

ended, in an unmarked evidence bag, with no documented record of where it came

from—in his autopsy report does not, as petitioner alleges, make the autopsy report

fraudulent. N.C. Gen. Stat. § 126-84 (2015).

Although the ALJ made additional remarks suggesting petitioner was

complaining about Dr. Nichols due to Dr. Nichols’s 9 September 2011 e-mail, we do

not find it necessary to speculate as to petitioner’s timing in reporting to Dr.

Radisch—i.e., whether it was a “tit for tat.” Instead, in analyzing the substance of

petitioner’s 28 July 2011 oral report and 9 September 2011 written report to Dr.

Radisch, we conclude petitioner failed to establish by a preponderance of the evidence

that he reported or was about to report protected activity.

We address petitioner’s second argument without reaching the merits. At the

hearing, petitioner testified that an S.B.I. agent and Dr. Turner asked him if he spoke

to the media regarding the Boykin autopsy. Although petitioner denied speaking to

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the media, he stated, “[I]t seemed to me I was being zeroed in on as far as being a

leak.”

The ALJ addressed petitioner’s allegation by stating that because petitioner

did “not contend that he actually prompted the media reports or S.B.I. investigation

. . . there is no need to determine whether such behavior would qualify as protected

activity under the Whistleblower Act.” Later in the final decision, in discussing the

third element of a claim and the absence of a retaliatory motive—assuming arguendo

that petitioner satisfied the first two elements—the ALJ stated, “[E]ven if Petitioner

could show that DHHS management sought his dismissal because they mistakenly

believed him to be the source of the media and S.B.I. leaks, this would be insufficient

to establish a claim under the Whistleblower Act.”

As the ALJ pointed out, our courts have not considered whether a “perceived

whistleblower” is entitled to protection under the Whistleblower Act. However, this

Court need not decide that issue today as it is not necessary to reach a conclusion in

this case. For the reasons discussed above, because petitioner’s reports to Dr. Radisch

did not constitute protected activity under N.C. Gen. Stat. § 126-84 (2015), a

perceived report of the same content to a different party (the S.B.I. or the media)

would likewise not constitute protected activity.

Because petitioner did not engage in protected activity, we need not address

petitioner’s arguments on the remaining two elements of a claim under the

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Whistleblower Act.

III. Conclusion

The ALJ did not err in determining that petitioner was not entitled to relief

under the Whistleblower Act.

AFFIRMED.

Judges STROUD and DIETZ concur.

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