The Legal Principles Applicable to a Motion for Summary Judgment

STATE OF NORTH CAROLINA COUNTY OF WAKE IN THE OFFICE OF ADMINISTRATIVE HEARINGS 09OSP03754 Amanda Thaxton, Petitioner, v. DECISION North Carolina State Ethics Commission, Respondent. Petitioner filed a contested case petition on June 11, 2009, in the Office of Administrative Hearings. On May 30, 2012, Respondent filed a Motion for Summary Judgment supported by documents of record, including depositions and affidavits. On July 31, 2012, Petitioner filed a Brief in Opposition to Respondent s Motion for Summary Judgment. The presiding Administrative Law Judge carefully has reviewed and considered the Ethics Commission s Motion for Summary Judgment and its Brief in Support of that Motion, the Brief in Opposition to the Ethics Commission s Motion for Summary Judgment filed by Petitioner, the Reply Brief of the Ethics Commission in Further Support of its Motion for Summary Judgment, the exhibits, documents, affidavits, and other materials contained in the Appendix of Exhibits filed by the Ethics Commission in support of its Motion for Summary Judgment, the other papers and materials filed by the parties in support of and in opposition to the Ethics Commission s Motion for Summary Judgment, and the applicable statutory and case law relating to the Ethics Commission s Motion for Summary Judgment. This decision is not based upon a determination of the issue of whether Respondent North Carolina Ethics Commission dismissed Petitioner from her employment with the Commission because of a retaliatory intent on Respondent s part. This decision is based upon the undisputed record facts--specifically relying on Petitioner s deposition--that Petitioner s first Whistleblower Act report was inaccurate and that Petitioner knew that it was inaccurate and that Petitioner s second Whistleblower Act report concerned matters that do not rise to the level of a legally cognizable Whistleblower Act report because it concerns only employee grievance matters and not matters of general public policy or public concern. An explanation of this decision, including the underlying undisputed facts, is set forth as follows for the sake of clarity for reviewing tribunals. The Legal Principles Applicable to a Motion for Summary Judgment Rule 56(c) of the North Carolina Rules of Civil Procedure provides that summary judgment is appropriate when the pleadings, depositions, written responses to discovery requests, 1

admissions on file, and affidavits show that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. E.g., Summey v. Barker, 357 N.C. 492, 496 (2003). The ultimate purpose of Rule 56 is to eliminate a formal trial where only questions of law are involved by permitting penetration of an unfounded claim in advance of trial and allowing summary disposition when a fatal weakness in the non-moving party s claim is exposed. E.g., Highlands Township Taxpayers Association v. Highlands Township Taxpayers Association, Inc., 62 N.C. App. 537, 538 (1983). Rule 56 is not limited in its application to any particular type or types of cases. Atkins v. Beasley, 53 N.C. App. 33, 38 (1981); Emerson v. Great Atlantic & Pacific Tea Co., 41 N.C. App. 715, 716-17, rev. denied, 298 N.C. 202 (1979). And the courts of this State have repeatedly recognized that Whistleblower Act claims, such as those involved in this case, are appropriate for summary disposition under Rule 56 where the undisputed facts show that the moving party is entitled to judgment as a matter of law. E.g., Demurry v. North Carolina Department of Corrections, 195 N.C. App. 485, 499 (2009); Hodge v. North Carolina Department of Transportation, 175 N.C. App. 110, 116 (2005), rev. denied, 360 N.C. 533 (2006); Swain v. Elfland, 145 N.C. App. 383, 384-88, rev. denied, 354 N.C. 228 (2001); Kennedy v. Guilford Technical Community College, 115 N.C. App. 581, 589 (1994), overruled in part on other grounds, Newberne v. North Carolina Department of Crime Control & Public Safety, 359 N.C. 782, 790 (2005); Minneman v. Martin, 114 N.C. App. 616, 620 (1994). In order to prevail on a motion for summary judgment, the moving party must show, by reference to the record before the court, that there is no disputed issue of material fact, e.g., Miller v. Triangle Volkswagen, Inc., 55 N.C. App. 593, 597 (1982), and that it is entitled to judgment as a matter of law. E.g., Edwards v. Akion, 52 N.C. App. 688, 690, aff'd, 304 N.C. 585 (1981). When a motion for summary judgment is made and properly supported as provided by Rule 56, the non-moving party may not rest on the mere allegations or denials contained in its pleadings. Rather, the non-moving party s response, either by competent affidavits or as otherwise provided by Rule 56, must set forth specific facts showing that there is a genuine issue of material fact for trial. Rule 56(e); Taylor v. Greensboro News Co., 57 N.C. App. 426, 434, app. dismissed, 307 N.C. 459 (1983). Finally, the courts of this State recognize that, where the record before the court shows that the plaintiff has no legally cognizable claim or that an essential element of the plaintiff s claim is nonexistent, summary judgment is appropriate. E.g., Rorrer v. Cooke, 313 N.C. 338, 354-55 (1985); Kessing v. National Mortgage Corp., 278 N.C. 523, 534-35 (1971). The Undisputed Record Facts Relating to Petitioner s Claims Against the Ethics Commission in This Case On June 12, 2009, Petitioner filed her Petition for a Contested Case Hearing in this case against the Ethics Commission. Exhibit 5, Appendix of Exhibits filed by the Ethics Commission 2

in Support of its Motion for Summary Judgment [hereinafter cited as App. Exhibit 5 ]. In her OAH Petition, Petitioner alleged that her case was based on other (explain) N.C.G.S. 126-34.1(7), adding that the following occurred due to discrimination and/or retaliation for opposition to discrimination: other (explain) Retaliation in violation of N.C.G.S. 126, Article 14 (Whistleblower Act). App. Exhibit 5, 4. Beyond this, Petitioner s OAH Petition merely alleged that [The Ethics Commission] retaliated and discriminated against [her] with respect to the compensation, terms, conditions, location and/or privileges of [her] employment by terminating [her] employment with [the Ethics Commission] because of [her] protected activity in reporting matters set forth in N.C.G.S. 126-84. App. Exhibit 5, 5. Petitioner s August 12, 2009, Prehearing Statement offered a bit more detail concerning her Whistleblower Act allegations. In that document, Petitioner stated that she was terminated from her employment by the Ethics Commission because she reported various matters of public concern that constituted protected activity under the Whistleblower Act. App. Exhibit 6, page 4, second full paragraph. In particular, her Prehearing Statement contended that she: 1. reported to the Office of State Personnel the existence of a retaliatory and hostile work environment at [the Ethics Commission] and inequitable handling of personnel matters, such as leave issues; 2. reported to Dianne Sortini (a consultant hired by the Office of State Personnel [the OSP ] to look into the inner workings of the [Ethics Commission s] offices) the hostility in the [Ethics Commission s] offices and the [Ethics Commission s] seizure of certain notes [Petitioner] kept about her work activity and, on information and belief, dealings with media requests; 3. reported various issues on numerous occasions to the Office of the State Auditor and provided the State Auditor with copies of [the Ethics Commission s] public records request log, both the original and the version altered by [the Ethics Commission s Assistant Director], removing a statement made by [Petitioner in that log] that [Will Polk], a representative of Beverly Perdue, Lieutenant Governor of North Carolina, was permitted to look at certain records in private and outside the presence of staff members of [the Ethics Commission]; 4. reported to the State Auditor hostility and gross abuse of authority in the offices of [the Ethics Commission], as well as what [Petitioner] thought to be retaliation in job duties and general office practices; and 5. reported to the State Auditor [the Ethics Commission s] termination of another worker [at the Ethics Commission], Hayley Phillips, and possible wrongdoing regarding that termination. App. Exhibit 6, page 4, 4, page 4, A, page 5, B. Petitioner s deposition testimony, her written responses to the Ethics Commission s written discovery requests, and the other undisputed record evidence further flesh out and narrow 3

her Whistleblower Act claims against the Ethics Commission. Petitioner testified during her deposition that what she regards as her Whistleblower Act reports against the Ethics Commission took the form of reports that the Ethics Commission had violated a State rule or regulation, in that the Ethics Commission allegedly violated the State s personnel policy and State Ethics Commission s rules and regulations, which [she believes] are adapted from State policy. App. Exhibit 7, Thaxton Deposition, taken on March 29, 2012, [hereinafter cited as App. Exhibit 7, Thaxton Dep., at ], at 26. As to the State s personnel policy, Petitioner testified that the Ethics Commission harassed her in general and that her duties and responsibilities were severely limited because of [her] reporting of [her] issues to the Office of State Personnel and to [Ms. Dianne] Sortini. 1 App. Exhibit 7, Thaxton Dep., at 27. As regards this harassment alleged by Petitioner, she testified that: 1. on several occasions, Mr. [Perry] Newson [the Ethics Commission s Executive Director] asked [her] or cornered [her] when no one else was in the office [and told her that] if [she] was looking for outside employment, [she] should let him know ; 2. Executive Director Newson told her that he thought [she] was doing a great job but wanted to know what [she] thought about the rest of the office, as if he was trying to turn me against or get information from me on others in the office; 3. Ms. [Kathleen] Edwards [the Ethics Commission s Assistant Director] told [Petitioner] that no one cared what [Petitioner] had to say, no one really valued [Petitioner s] opinion, and that at one point told [Petitioner] that she never saw [Petitioner] going anywhere; and 4. Executive Director Newson harassed Petitioner verbally by speaking to her in a very curt tone. App. Exhibit 7, Thaxton Dep., at 28-29. In addition, Petitioner testified that Assistant Director Edwards interacted with her in what she felt was an impolite manner that was demeaning and made Petitioner look dumb. App. Exhibit 7, Thaxton Dep., at 47. Petitioner also testified that Executive Director Newson, Assistant Director Edwards, and Beth Carpenter, the Ethics Commission s Administrative Assistant and Coordinator for Statements of Economic Interest ( SEI ), see App. Exhibit 1, Attachment C, page 4, all verbally harassed her by speaking to her in a curt tone, though she stated that they did so both before 1 Petitioner also testified that the Ethics Commission violated State personnel policy by terminating her without just cause, App. Exhibit 7, Thaxton Dep., at 26-27; however, as she acknowledged in her Petition for a Contested Case Hearing, at the time of her dismissal, she had only 15 months of continuous State Government employment, such that she was not a tenured (or career ) State Government employee with legally protected rights in her continued employment. N.C. Gen. Stat. 126-1.1. 4

and after she made what she considers to be her whistleblower reports. App. Exhibit 7, Thaxton Dep., at 29-30. As to the Ethics Commission s alleged limitation of Petitioner s duties and job responsibilities, she testified that her duties were severely limited by the Ethics Commission during the last few months of her employment there in what she believes was retaliation for her alleged whistleblower reports to the Office of State Personnel ( OSP ) and Dianne Sortini, as well as her alleged whistleblower reports to the State Auditor s Office. She testified that, prior to reporting to the OSP and Dianne Sortini, her duties at the Ethics Commission included doing: special projects for any of the senior staff that needed it, [reviewing] all of the [SEIs] for state employees, judges and commissions, also include[ing] Das, run[ning] the [Ethics Commission s SEI] public records [request] log, I pretty much made copies [of the SEI files requested by people], [c]alled people back to make sure they wanted to come get [the copies], collected money charged for things like that and [performed] other administrative duties. Petitioner testified that, after she made her alleged whistleblower reports to the OSP and Dianne Sortini, [a]nything outside the scope of the SEIs had to be approved by Beth Carpenter before [Petitioner] was allowed to do [it]. Petitioner claimed that, if she wanted to telephone someone and tell him that copies of a requested SEI file had been made and were ready to be picked up, she had to ask Beth Carpenter for approval and that Assistant Director Edwards had to review all the SEI file copies made before they were given to the person requesting them. 2 App. Exhibit 7, Thaxton Dep., at 30-33. Petitioner acknowledged in her deposition testimony that when she concluded that she verbally was being harassed by Executive Director Newson, Assistant Director Edwards, and Beth Carpenter, and when she concluded that her job duties were being limited severely, she did not file any grievance with the Ethics Commission or any other agency, and she did not file a petition for a contested case hearing in the OAH to challenge these alleged violations of State personnel policy. She testified that, instead, she simply told the people at the Office of State Personnel about these matters. App. Exhibit 7, Thaxton Dep., at 42-43. As to the rules and regulations of the Ethics Commission that Petitioner claims the Commission violated and which she alleges she made the subject of one or more whistleblower reports, she testified that Assistant Director Edwards sent an email message to the staff of the Ethics Commission, including Petitioner, which stated how the staff was to respond to requests by members of the public to review the SEI files maintained by the Ethics Commission. Petitioner acknowledged that this email message did not constitute a set of rules or regulations of the Ethics Commission or of the State Government, but rather was simply a statement from Kathleen Edwards [contained] in an email [message.] Petitioner also acknowledged that, after 2 The Ethics Commission argued in its summary judgment papers that this testimony by Petitioner does not actually evidence any reduction in her duties or job responsibilities, but rather that she was required to obtain the approval of her immediate supervisor before executing the same sorts of tasks that she previously had executed without the approval of her supervisor. In a review of Petitioner s papers filed in opposition to the Ethics Commission s Motion for Summary Judgment, she does not dispute this. 5

Assistant Director Edwards sent out this email message, Petitioner assumed that she [Assistant Director Edwards] could change the procedures she outlined in her email message at any time. App. Exhibit 7, Thaxton Dep., at 37-38. Petitioner testified that this email message from Assistant Director Edwards stated that the staff of the Ethics Commission should respond to requests made by members of the public to review SEI files in accordance with the following procedures: 1. You never let them review an original record. You always give them copies to protect the integrity of the original records. 2. [N]o one was allowed to view them [the Ethics Commission s SEI files] in a closed room by themselves. There had to be a staff member present or in eyesight of where they were. Many times, people would review them in the conference [room] where I could visually see them. 3. [N]o one was allowed to review the [Ethics Commission s SEI files] without previously making an appointment. App. Exhibit 7, Thaxton Dep., at 35-36. Petitioner testified that she is not acquainted with the North Carolina Public Records Law, N.C. Gen. Stat. 132-1, et seq., and that, consequently, she does not know whether any of these alleged Ethics Commission SEI public records request procedures conflict with or even violate the requirements of the Public Records Law such as the Public Records Law s requirement that, once a person requests a public record, the custodian of the record must make the record itself, not just a copy of it, available to the requester for inspection and examination. 3 App. Exhibit 7, Thaxton Dep., at 36. Petitioner testified that the underlying reasons for each of these alleged Ethics Commission internal procedures are that: 1. as to alleged internal procedure number one, if a person who comes to the Ethics Commission s offices to review its SEI files is allowed to review the original files, he could alter, steal, or destroy them; 2. as to alleged internal procedure number two, if a person who comes to the Ethics Commission s offices to review its SEI files is allowed to review these files without 3 N.C. Gen. Stat. 132-6(a) provides, in pertinent part, that: Every custodian of public records shall permit any record in the custodian s custody to be inspected and examined by any person, and shall, as promptly as possible, furnish copies thereof upon payment of any fees as may be prescribed by law. Thus, if Petitioner s characterization of Assistant Director Edwards email message were correct, it appears that the very first procedure that Petitioner alleges was contained in Ms. Edwards email message would have squarely violated the express terms of the Public Records Law. 6

being observed by a chaperone, he could likewise alter, steal, or destroy the documents; 4 and 3. as to internal procedure number three, if the Ethics Commission permitted people to review its SEI files without a prior appointment, that would be disruptive of office order and would be inconvenient for the Ethics Commission s staff. App. Exhibit 7, Thaxton Dep., at 38-39. Assistant Director Edwards email message referred to by Petitioner shows that Petitioner s characterization of this document and its contents is erroneous. This email message, which appears in the Ethics Commission s Appendix of Exhibits as Exhibit 8, was dated May 20, 2007, and was addressed to Alice Austin, Beth Carpenter, and Petitioner, with a copy to Executive Director Newson. App. Exhibit 9, Affidavit of Kathleen S. Edwards [the Edwards Affidavit ], sworn to May 30, 2012, 4, the contents of which Petitioner did not dispute. The Edwards email message states that the Ethics Commission s SEI files are public records for purposes of the North Carolina Public Records Law and that, as such, the Ethics Commission is required, among other things: (i) to permit those records to be inspected and examined at reasonable times and under reasonable supervision; and (ii) to furnish copies of the documents as promptly as possible. App. Exhibit 8, page 1. Contrary to Petitioner s testimony that this email message mandated that the staff of the Ethics Commission provide only copies of the Ethics Commission s original SEI files to those persons requesting them, the actual Edwards email message states that persons making public records requests for the Ethics Commission s SEI files have the choice of either reviewing the SEIs themselves (that is, the original files) or obtaining copies of those files. Thus, Assistant Director Edwards email message instructed its recipients to find out from each person making a public records request for an SEI file [w]hether they want to merely review SEIs or obtain copies. App. Exhibit 8, page 1. (Underscoring in original) Accordingly, Appendix Exhibit 8, a contemporaneous document whose contents are undisputed by Petitioner, shows that Petitioner s characterization of it as establishing an internal procedure forbidding document requesters to be given access to original documents is erroneous. Likewise erroneous is Petitioner s testimonial characterization of this email message as mandating that the staff of the Ethics Commission never should allow a person to review an Ethics Commission SEI file without an Ethics Commission chaperone being present to observe him as he reviews the file. The closest that this email message comes to addressing this general subject is Assistant Director Edwards quotation of a portion of the Public Records Law in the introductory section of the email message, where she states that the Ethics Commission is required to permit its SEI files to be inspected and examined at reasonable times and under 4 The undersigned notes that, by Petitioner s own admission, this second alleged internal procedure presupposes that the person who is reviewing the Ethics Commission s SEI files is reviewing only a copy of those files, not the originals, given that Petitioner testified that alleged internal procedure number one allegedly mandated that the Ethics Commission s staff never allow anyone to review originals of these SEI files. App. Exhibit 7, Thaxton Dep., at 35-36. Petitioner s deposition testimony leaves unexplained why it would matter if a person was unchaperoned while reviewing copies of the Ethics Commission s SEI files, even if the person did attempt to alter, steal, or destroy the files, since, according to Petitioner s testimony, any such files would be only copies anyway. 7

reasonable supervision. But Assistant Director Edwards did not say in this email message what constituted reasonable supervision in any given case (any more than the Public Records Law attempts to define this term), or whether any supervision at all was necessary if the person reviewing an SEI file was someone known to and trusted by the management staff of the Ethics Commission. App. Exhibit 8, pages 1-2. The only part of Petitioner s testimony concerning this email message that is borne out by the actual Edwards email message itself is Petitioner s statement that Assistant Director Edwards told the Ethics Commission s staff not to make copies of SEI files for persons who just dropped by the Ethics Commission s offices without an appointment. App. Exhibit 8, page 2. In this regard, however, Petitioner herself acknowledged that, as the Assistant Director of the Ethics Commission and as the author of this email message, Kathleen Edwards was authorized to make the decision to change or make exceptions to this appointment procedure whenever she (Assistant Director Edwards) concluded that circumstances warranted it. Assistant Director Edwards Affidavit, the contents of which Petitioner did not dispute, bears out this conclusion. App. Exhibit 9, Edwards Affidavit, 5-6. Assistant Director Edwards Affidavit also bears out that the statements made by her in the May 20, 2007, email message to Alice Austin, Beth Carpenter, and Petitioner did not, as Petitioner has conceded, constitute rules or regulations of the Ethics Commission. Rather, Assistant Director Edwards statements made in this email message provided guidelines to these three staff members for their handling of public records requests for SEIs. Assistant Director Edwards email message specifically noted that these guidelines were being provided on an interim basis only, just until a public records policy could be developed and implemented. App. Exhibit 8, page 1; App. Exhibit 9, Edwards Affidavit, 5. Kathleen Edwards Affidavit also bears out that she had the authority to adjust these interim guidelines and give these three Ethics Commission staff members different instructions if she concluded that circumstances warranted it. App. Exhibit 9, Edwards Affidavit, 6. Petitioner testified in her deposition that, in October 2007, the Ethics Commission violated the alleged internal procedures that she claims were set out in Assistant Director Edwards email message (the three procedures identified above). More particularly, Petitioner testified that, on October 11, 2007, Will Polk, the then-general Counsel to then-lieutenant Governor Beverly Perdue, came to the offices of the Ethics Commission and asked to see the Lieutenant Governor s SEI file. App. Exhibit 7, Thaxton Dep., at 52, 55, 58. Petitioner testified that Will Polk identified himself to her by giving her his business card, App. Exhibit 7, Thaxton Dep., at 58; that Will Polk had no previous appointment to see these SEI files, App. Exhibit 7, Thaxton Dep., at 56, 57; and that Petitioner told him that he would have to make an appointment before he could see these files. App. Exhibit 7, Thaxton Dep., at 58. Will Polk accepted this response and left, at which point Petitioner told Assistant Director Edwards what had happened. App. Exhibit 7, Thaxton Dep., at 58-59. Petitioner testified that Assistant Director Edwards had Beth Carpenter telephone Will Polk s office and say that he could come back to the Ethics Commission s offices to look at these SEI files if he still wished to do so. 5 App. Exhibit 7, Thaxton Dep., at 59. 5 In view of Will Polk s in-person request to Petitioner to see the Lieutenant Governor s SEI file and Beth Carpenter s subsequent telephone message to Will Polk s office stating that he could come back to the Ethics 8

Will Polk returned to the Ethics Commission s offices shortly thereafter, at which point Beth Carpenter met him, apologized for the confusion, and had the Lieutenant Governor s SEI file in her hand. Assistant Director Edwards then came out of her office, spoke to Will Polk and escorted him down the hall to review those records. The Ethics Commission s conference room was occupied at this time. Consequently, Assistant Director Edwards ushered Will Polk into an unoccupied office. This was an office previously occupied by a former member of the Ethics Commission s staff. Since the departure of the former staff member, this office had remained empty. Assistant Director Edwards showed Will Polk into this unoccupied office and left him unchaperoned with the Lieutenant Governor s SEI file and the door either partially or fully closed. App. Exhibit 7, Thaxton Dep., at 61. Petitioner s testimonial characterization of these events from October 11, 2007, is similar to the accounts of these events given by Will Polk and Kathleen Edwards. See App. Exhibits 10 and 9, respectively, the Affidavit of William M. Polk [the Polk Affidavit ], sworn to on May 30, 2012, and the Edwards Affidavit. Assistant Director Edwards adds in her Affidavit, however, that she understood Will Polk s request to be time sensitive, that she knew Will Polk, that she believed him to be entirely trustworthy, that she knew that he had a very busy work schedule, and that she therefore made the decision to permit him to return to the offices of the Ethics Commission on October 11, 2007, to review the Lieutenant Governor s SEI file, noting that this decision was within her authority to make and that it violated no rule or regulation of the Ethics Commission. Citing her May 20, 2007, email message, Assistant Director Edwards also notes in her Affidavit that there was no Ethics Commission rule, regulation, or internal operating procedure requiring that Will Polk be accompanied by a chaperone while he reviewed the Lieutenant Governor s SEI file, adding that the issue of a chaperone was irrelevant in any event, since the Lieutenant Governor s SEI file had been copied in its entirety many times by news reporters and others prior to October 11, 2007. App. Exhibit 9, Edwards Affidavit, 4-11. Petitioner did not file any affidavit disputing any of these matters stated by Assistant Director Edwards in her Affidavit. Petitioner acknowledged that she has no reason to believe that Will Polk deleted, altered, stole, or destroyed any of the contents of the Lieutenant Governor s SEI file. App. Exhibit 7, Thaxton Dep., at 62-63. Will Polk has stated under oath that he did none of these things and that all he did was read Lieutenant Governor Perdue s SEI file and then put it back in its folder. App. Exhibit 10, Polk Affidavit, 13. In explaining why she reported this episode to the OSP, Dianne Sortini, and the State Auditor and why she felt that this matter rose to the level of a whistleblower report under N.C. Gen. Stat. 126-84, Petitioner testified that she was troubled by the fact that Will Polk was allowed to view the original of the Lieutenant Governor s SEI file, that he was allowed to do so without a chaperone and that he was allowed to do so without a prior appointment because this had the potential to lead to some form of corruption, App. Exhibit 7, Thaxton Dep., at 70, such as the alteration, theft, or destruction by Will Polk of the Lieutenant Governor s SEI file. See App. Exhibit 7, Thaxton Dep., at 38-39. Commission s offices right away and see these files, the Ethics Commission contended in its summary judgment papers that the alleged requirement of a previous appointment was satisfied in full. Petitioner s summary judgment papers did not dispute this. 9

When Will Polk left the Ethics Commission s offices that day, Petitioner made a note in the Ethics Commission s SEI public records request log that stated as follows: 10/11/2007 Will Polk General Counsel Copies/Review all of Bev Perdue s Lt. Governor, 301 file. N Blount Street (Reviewed files in Frank s office Raleigh, NC 27609 alone with door closed) 715-9039 App. Exhibit 7, Thaxton Dep., at 67 and Exhibit 7 to Thaxton Dep. Petitioner wrote a similar notation that day in her office work notes. 6 App. Exhibit 11. Petitioner also testified that, approximately six months after Will Polk s visit to the Ethics Commission (in approximately April 2008), someone at the Ethics Commission deleted that portion of Petitioner s SEI log entry that stated Reviewed files in Frank s office alone and with door closed. App. Exhibit 7, Thaxton Dep., at 67. In her Responses to the Ethics Commission s First and Second Sets of Requests for Production of Documents and Things, request numbers 3, 7, Petitioner stated that it was Kathleen Edwards who deleted this log entry. App. Exhibits 12 and 13, respectively. None of this testimony by Petitioner concerning Will Polk s visit to the Ethics Commission on October 11, 2007, takes account of the undisputed fact that the May 20, 2007, email message from Assistant Director Edwards to the Ethics Commission s SEI staff concerning the Ethics Commission s interim guidelines for handling SEI public records requests did not establish any rules, regulations, procedures, or even guidelines mandating that persons reviewing SEI files be allowed to see only copies of those files or the fact that this email message did not mandate that all persons reviewing SEI files be chaperoned by a member of the Ethics Commission s staff. In addition to these undisputed record facts, Petitioner acknowledged in her deposition testimony that the Lieutenant Governor s SEI file routinely and frequently was reviewed and copied in full by news reporters and others, both before and after Will Polk reviewed this file at the Ethics Commission s offices on October 11, 2007; that the entire contents of this SEI file thus already were in the public domain before Will Polk s visit to the Ethics Commission s offices on October 11, 2007; and that the documents that Will Polk reviewed on October 11, 2007 were exactly what these previous persons had seen and copied. App. Exhibit 7, Thaxton Dep., at 65-66. Even more significantly, Petitioner acknowledged in her deposition testimony that, given that full and complete copies of exactly what Will Polk reviewed at the Ethics Commission s offices on October 11, 2007, already were in the hands of reporters from many of the State s newspapers and other news organizations, as well as members of the public at large as of October 11, 2007, it would not have been possible for Will Polk to have succeeded, if he had 6 Petitioner s work notes for October 11, 2007, state: Will Polk came to get copy of Bev Perdue s file. I said I can t get it now. Kathy allowed Mr. Polk to view records in an office by himself with the door closed. App. Exhibit 11. 10

had it in his mind that day, to alter, destroy, delete, or remove some or all of the contents of Lieutenant Governor Perdue s SEI file. App. Exhibit 7, Thaxton Dep., at 66. In other words, Petitioner admitted that there never was any possibility that the corruption she says she was concerned about and which she says drove her to make her whistleblower report could have occurred. Despite these undisputed facts, Petitioner testified that she made a series of what she considers to be whistleblower reports to various persons and agencies. Cataloging these alleged whistleblower reports in her deposition, she testified that: 1. She made numerous reports to the OSP and to Dianne Sortini regarding harassment of myself and other [Ethics Commission] employees. Petitioner testified that, [w]hen [she] felt that [the] OSP was no longer willing to help [her], [she] went to the State Auditor s Office and reported that I felt harassed while working at the [Ethics] Commission. App. Exhibit 14, Petitioner s Answers to the Ethics Commission s First Set of Interrogatories, Interrogatory 1; App. Exhibit 7, Thaxton Dep., at 19-20, 22-24. 2. She gave the State Auditor s Office a copy of the Ethics Commission s SEI public records request log containing her notation Reviewed files in Frank s office alone and with door closed, together with a copy of this document showing that this notation by her later had been deleted. She told the State Auditor s Office that Assistant Director Edwards was the person who had deleted this part of her log entry. She testified that she also gave the State Auditor s Office a copy of Assistant Director Edwards email message concerning the Ethics Commission s alleged procedures for handling SEI public records requests. App. Exhibits 12 and 13, Petitioner s Responses to the Ethics Commission s First and Second Sets of Requests for Production of Documents and Things, request numbers 3, 7; App. Exhibit 14, Petitioner s Answers to the Ethics Commission s First Set of Interrogatories, Interrogatory 1; App. Exhibit 7, Thaxton Dep., at 69. 3. She told the State Auditor s Office about her contentions concerning Will Polk s October 11, 2007, visit to the offices of the Ethics Commission to review Lieutenant Governor Perdue s SEI file, and she reported that a big exception to how [SEI] records are generally [made available by the Ethics Commission for inspection by members of the public] was made for the Lieutenant Governor s staff member [Will Polk], and that since that was a large deal, I recorded it in the record [the Ethics Commission s SEI public records request log]. App. Exhibit 14, Petitioner s Answers to the Ethics Commission s First Set of Interrogatories, Interrogatory 1. According to Petitioner s deposition testimony, these are all of the whistleblower reports that she made to anyone, and these reports constitute the universe of Whistleblower Act reports that are the subject of this legal proceeding. Petitioner made no other whistleblower reports to anyone. App. Exhibit 7, Thaxton Dep., at 19-22. 11

Petitioner testified that she is not aware of any instances of sexual harassment occurring at the Ethics Commission during her employment there and that she never made any Whistleblower Act reports of any such harassment to anyone. App. Exhibit 7, Thaxton Dep., at 24. In addition, Petitioner never has made any Whistleblower Act reports or accusations to anyone concerning the Ethics Commission regarding fraud, acts of misappropriation of State resources, acts by the Ethics Commission creating a substantial and specific danger to the public health or safety, gross waste of monies, or violations of State or federal law. App. Exhibit 7, Thaxton Dep., at 24-25. The Legal Principles Applicable to a Claim Arising Under the Whistleblower Act The Whistleblower Act establishes that it is the policy of this State to encourage its employees to report violations of State or federal law, rules or regulations, fraud, misappropriation of state resources, substantial and specific danger to the public health, and safety, gross mismanagement, a gross waste of monies, or gross abuse of authority. N.C. Gen. Stat. 126-84; Hodge v. North Carolina Department of Transportation, 175 N.C. App. 110, 116 (2005), rev. denied, 360 N.C. 533 (2006). Section 84 of the Whistleblower Act, entitled Statement of Policy, provides, in pertinent part, that: (a) It is the policy of this State that State employees shall be encouraged to report 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 gross abuse of authority. (b) Further, it is the policy of this State that State employees be free of intimidation or harassment when reporting to public bodies about matters of public concern, including offering testimony to or testifying before appropriate legislative panels. N.C. Gen. Stat. 126-84. In accordance with this State policy, the Whistleblower Act protects State employees from intimidation, harassment, and retaliation when they report on those matters of public concern spelled out in N.C. Gen. Stat. 126-84. Hodge, 175 N.C. App. at 116. In this regard, N.C. Gen. Stat. 126-85, entitled Protection from retaliation, provides, in pertinent part, that: (a) No 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,, reports, any activity 12

described in G.S. 126-84, unless the State employee knows or has reason to believe that the report is inaccurate. (a1) No State employee shall retaliate against another State employee because the employee,, reports, any activity described in G.S. 126-84. * * * * * (c) The protections of this Article shall include State employees who report any activity described in G.S. 126-84 to the State Auditor as authorized by G.S. 147-64.6B or to the Program Evaluation Division as authorized by G.S. 120-36.12(10). In order to prevail on a Whistleblower Act claim, the plaintiff must prove, by a preponderance of the evidence, the following three elements: 1. that the plaintiff engaged in one of the protected activities identified in N.C. Gen. Stat. 126-84(a) or (b); 2. that the defendant took an adverse employment action against the plaintiff; and 3. that there was a causal connection between the protected activity engaged in by the plaintiff and the adverse employment action taken by the defendant against the plaintiff. Hodge, 175 N.C. App. at 116 (citing and relying upon Newberne v. North Carolina Department of Crime Control & Public Safety, 359 N.C. 782, 788 (2005)). Not just any report on matters of public concern qualifies for Whistleblower Act protection, however. As the statute itself expressly states, its protections do not apply and a Whistleblower Act plaintiff has no claim where the plaintiff knows or has reason to believe that the report is inaccurate. N.C. Gen. Stat. 126-85(a); Newberne, 359 N.C. at 795-96. Expanding on this statutory exception to the Whistleblower Act, the North Carolina Supreme Court has observed that: The plain meaning of this proviso is that the Act does not apply to employees who make allegations of mis-management or wrongdoing which they know or should know to be false. In other words, the Act does not protect false whistleblowing allegations, unless the plaintiff has no reason to know of their falsehood. Cf. Westman & Modesitt, Whistleblowing, Ch. 2, II.E.2 at 52 (noting that false [whistleblowing] allegations serve no public interest);. Newberne, 359 N.C. at 795-96. In addition to this statutory exception for reports which the employee knows or should know to be inaccurate, the appellate courts of this State have held that reports of employee grievance matters do not constitute reports for purposes of the Whistleblower Act, such that a plaintiff-employee may not, as a matter of law, base a Whistleblower Act claim upon such a 13

report. E.g., Hodge, 175 N.C. App. at 112-16. In Hodge, a State employee brought a Whistleblower Act claim, arguing that his protected activity took the form of his earlier litigations filed in the North Carolina Office of Administrative Hearings and the Superior Court over the reclassification of his job as policy making exempt, his employer s failure to give him priority for re-employment after he had lost his job following a reduction in force, and his employer s failure to provide him with adequate work space, a computer with updated software, adequate training, and an access number to the Department of Transportation s database after he was re-employed by the Department. Id. at 112-113. The trial court awarded summary judgment to the employer-agency, dismissing the employee s Whistleblower Act claim on the ground that these reports do not rise to the level of a Whistleblower Act claim: First, the Court finds and concludes as a matter of law, that the institution of civil actions by State Employees to secure their employment rights allegedly violated by a state agency, or the institution of administrative proceedings in the Office of Administrative Hearings, are NOT acts which trigger the right to sue for retaliation under the Whistleblower Act,. Id. at 115, 705. (Emphasis in original) On appeal, the North Carolina Court of Appeals affirmed the trial court s ruling and its rationale. In its analysis of the appropriate scope of the Whistleblower Act, the Court of Appeals first surveyed the case law on the Act and observed that the courts of this State have applied its protections to employees who allege retaliation after: (i) reporting sexual harassment in the workplace, Wells v. North Carolina Department of Corrections, 152 N.C. App. 307, 313 (2002); (ii) cooperating in SBI investigations regarding misconduct by their supervisors, Caudill v. Dellinger, 129 N.C. App. 649, 655 (1998), aff'd, 350 N.C. 89 (1999); (iii) cooperating in the investigation of a supervisor regarding the supervisor s mistreatment of patients in a state hospital, Minneman v. Martin, 114 N.C. App. 616, 617 (1994); (iv) reporting police misconduct, Newberne, 359 N.C. at 797; (v) reporting improper police procedures and obstruction of justice, Swain v. Elfland, 145 N.C. App. 383, 385, rev. denied, 354 N.C. 228 (2001); (vi) reporting misappropriation of governmental resources, Hanton v. Gilbert, 126 N.C. App. 561, 564, rev. denied, 347 N.C. 266 (1997); and (vii) reporting possible conflicts of interest among staff members and potential appropriation of State resources for private gain, Aune v. University of North Carolina, 120 N.C. App. 430, 431 (1995), rev. denied, 342 N.C. 893 (1996). Hodge, 175 N.C. App. at 116-17. The Court of Appeals in Hodge stated that the plaintiffs whistleblower reports in all of these cases concerned reports of matters affecting general public policy that implicate broader matters of public concern. Id. By contrast, the court observed that the plaintiff in Hodge: contends that his 1998 suit [his OAH appeal] seeking reinstatement into his former position constitutes reporting to another appropriate authority the violation of a rule or regulation under the Whistleblower Act. He contends that DOT violated N.C. Admin. Code tit. 25 r. 1B.0428 (September 1987), which 14

requires [that] a dismissed employee be returned to employment in the same or similar position, at the same pay grade and step. Thus, he maintains that DOT retaliated against him for protected conduct under the Whistleblower Act. We disagree. * * * * * In this case, plaintiff s report was his 1998 lawsuit seeking reinstatement to his former position. The central allegations of the 1998 lawsuit related only tangentially at best to a potential violation of the North Carolina Administrative Code. As such, the lawsuit did not concern matters affecting general public policy. We decline to extend the definition of a protected activity to individual employment actions that do not implicate broader matters of public concern. We do not believe the General Assembly intended N.C. Gen. Stat. 126-84 to protect a State employee s right to institute a civil action concerning employee grievance matters. Id. at 116-17. (Emphasis supplied) See also Holt v. Albemarle Regional Health Services Board, 188 N.C. App. 111, 115-17 (2008) (Plaintiff State employee informed her superiors of her opposition to their proposed termination of one of her co-workers, as well as her view that such an act would be unlawful; following the co-worker s later termination, the plaintiff informed her superiors that, if her former co-worker sued for wrongful termination, she would testify truthfully and that she wanted independent legal representation. When the plaintiff thereafter was terminated and sued the agency under the Whistleblower Act, the court affirmed the trial court s award of summary judgment for the defendants, noting that [t]his Court has declined to extend the definition of a protected activity to individual employment actions that do not implicate broader matters of public concern. ). Petitioner s Claim That She Was Dismissed by the Ethics Commission in Retaliation for Her Alleged Whistleblower Act Report Concerning Will Polk and Lieutenant Governor Perdue s SEI File As noted above, the Whistleblower Act does not apply to and is not triggered by a report where the plaintiff knows or has reason to believe that the report is inaccurate. N.C. Gen. Stat. 126-85(a); Newberne v. North Carolina Department of Crime Control & Public Safety, 359 N.C. 782, 796 (2005). The heart and essence of Petitioner s alleged Whistleblower Act report concerning Will Polk and Lieutenant Governor Perdue s SEI file is that the Ethics Commission deviated from its rules and regulations concerning how members of the public were to be allowed to examine public records and that, as a result, Will Polk could have altered, stolen, or destroyed the Lieutenant Governor s SEI file. Petitioner admitted in her deposition testimony that neither of these assertions is accurate. First, she admitted that it would have been impossible for Will Polk to have altered, stolen, or destroyed any part of Lieutenant Governor Perdue s SEI file without being detected. App. Exhibit 7, Thaxton Dep., at 65-66. In other words, the underlying premise, implication, and thrust of Petitioner s report is inaccurate. Furthermore, Petitioner knew that her report was inaccurate and has admitted that fact. 15

Petitioner asserts that the Ethics Commission s rules and regulations concerning how to handle public records requests for the SEI files maintained by the Ethics Commission were contained in an email message dated May 20, 2007, from Assistant Director Edwards to various members of the Ethics Commission s staff, including Petitioner. App. Exhibit 7, Thaxton Dep., at 35-37. Petitioner, however, admitted in her deposition testimony that Assistant Director Edwards May 20, 2007, email message did not contain any rules or regulations at all. App. Exhibit 7, Thaxton Dep., at 37-38. Indeed, this email message states that it contains only temporary or interim guidelines, App. Exhibit 8, May 20, 2007, Email Message from Kathleen Edwards, page 1; App. Exhibit 9, Kathleen Edwards Affidavit, 5-6, and Petitioner also admitted that Kathleen Edwards, as the then-assistant Director of the Ethics Commission, had the authority to change and make exceptions to these interim guidelines whenever she concluded that it was appropriate under the circumstances to do so. App. Exhibit 7, Thaxton Dep., at 37-38. In addition, Assistant Director Edwards May 20, 2007, email message nowhere states that members of the public seeking to review an SEI file maintained by the Ethics Commission may only view a copy of the SEI file, as opposed to the original of the SEI file. App. Exhibit 8, Kathleen Edwards May 20, 2007, Email Message. In fact, this email message states just the opposite. App. Exhibit 8, page 1. Furthermore, Assistant Director Edwards May 20, 2007, email message does not state that a person seeking to examine an SEI file maintained by the Ethics Commission must be chaperoned by a member of the Ethics Commission s staff. App. Exhibit 8. Because Petitioner s report(s) concerning Will Polk and Lieutenant Governor Perdue s SEI file are inaccurate and because Petitioner knew or should have known that they were inaccurate, they cannot and do not, as a matter of law, trigger Whistleblower Act protection. N.C. Gen. Stat. 126-85(a); Newberne v. North Carolina Department of Crime Control & Public Safety, 359 N.C. 782, 788 (2005). For this reason, summary judgment is appropriate as to this portion of Petitioner s Whistleblower Act case. Petitioner s Claim That She Was Dismissed by the Ethics Commission In Retaliation for Her Alleged Whistleblower Act Report(s) of What She Refers to as Employee Grievance Matters As discussed above, under the North Carolina Court of Appeals ruling in Hodge v. North Carolina Department of Transportation, 175 N.C. App. 110, 112-16 (2005), rev. denied, 360 N.C. 533 (2006), reports of employee grievance matters do not trigger Whistleblower Act protection because employee grievance matters do not affect general public policy and do not implicate broader matters of public concern. Specifically, the Court of Appeals in Hodge held that: 1. a report by a dismissed State Government employee that a State Government agency violated State personnel laws, rules, and/or regulations by wrongfully reclassifying the employee s job as policy making exempt is merely an employee grievance matter that does not rise to the level of a Whistleblower Act report; and 2. a report by a dismissed State Government employee that a State Government agency violated State personnel laws, rules, and/or regulations by wrongfully failing to give the 16