Click each link below to access the court documents file in Vincoli v State (Roy Cooper's and Josh Stein's ongoing battle to keep Joe Vincoli from having a hearing to determine why he was reclassified by Governor McCrory as 'managerial exempt' (even though he managed no people and no program) and to determine whether or not he was fired because he tried to report information related to overpayments made by the State Health Plan to a hospital in North Carolina).
Josh Stein has chosen to fight my right to have a hearing in OAH.
Here is a portion of my most recent filing with the NC Court of Appeals.
2. Vincoli reasonably believed in good faith that his SPIF was accurate.
The Whistleblower Act states in pertinent part:
No 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) (emphasis added).
DPS contends that Vincoli knew or should have known that his report was inaccurate and that therefore his actions were not protected from retaliation.
This argument is without merit.
The Whistleblower Act is not limited solely to the reporting of fraud. The Act includes evidence of gross waste of state money or misappropriation of state resources.
Vincoli believed that the new information he had obtained when Baptist sued him might be material to the State’s ability to recover the overpayment. (R S pp 290-293).
Vincoli did not know the terms of any settlement between the State and Baptist Hospital.
Thus, he reasonably believed he had a duty as a state employee to provide the emails and documents he had obtained.
There is no evidence that Vincoli knowingly and intentionally submitted a false or inaccurate SPIF.
3. There is a reasonable proximity in time between Vincoli’s protected activity and his position being designated as exempt and the termination of his employment.
DPS contends that there is no causal link between the submittal of the SPIF and the ultimate termination of Vincoli’s employment from a position that was reclassified as managerial exempt.
There is no specified time within which adverse action must be taken after protected activity. Each case must be determined on the particular facts and circumstances In this case, all of the actions took place within the space of 12 months.
The most relevant actions took place within a four-month period of time from between August 2013 and December 2013.
The email evidence shows that on August 1, 2013, DPS management began reviewing other positions that could be made exempt, either policymaking or managerial. (R S p 427).
Vincoli’s position was listed for consideration, but it was noted that his immediate supervisor was not exempt, so management would have to consider making other changes. (R S p 428).
On August 2, 2013, Ellis Boyle replied with a list of positions and names he wanted made exempt. Neither Vincoli’s name or position was on Mr. Boyle’s list. (R S pp 426-427).
On August 14 and 15, 2013, Vincoli discovered that the SPIF he submitted in January 2013 had not been submitted to the SBI. (R S pp 420).
It was suggested that he re-submit the form to his supervisor if it remained a concern to him. (R S p 420).
He did so on August 20.
The same day, August 20, Deputy Commissioner Joe Prater inquired whether an exemption letter had been done for Vincoli. (R S p 397).
It had not been done.
On August 21, 2013, Vincoli notified his chain of command that he had re-submitted his SPIF (that he had previously submitted in January 2013). (R S p 414).
On August 22, 2013, Deputy Commissioner Tim Moose replied by email to Vincoli that “the issue has nothing to do with the Department.” (R S p [414).
Vincoli replied in turn by email that his concern was that “I handle these documents appropriately.”
Mr. Boyle replied, again by email, that: The point of Mr. Moose’s email was as a courtesy to let you know that you can do whatever you want with this information. This is not a department matter and the department will not provide you any legal advice about it or assist you with it. Please do not spend any more work time on this issue. There is no need for you to reply to this email. (R S p 413).
Vincoli emailed George Solomon, Director of Prisons, that Mr. Boyle and Mr. Moose are of the opinion that SPIFs should only concern DPS losses.
Vincoli further stated to Mr. Solomon that “I would like to point out that prior to joining DPS Mr. Boyle worked for the law firm Womble Carlisle . . . a firm that provides legal counsel to the alleged perpetrator in this case and perhaps he should recuse himself because of that.” (R S p 411).
This email was forwarded to Mr. Boyle. (R S p 411).
On August 22, 2013, Vincoli emailed Commissioner Guice requesting a meeting “to discuss this State Property Incident Form issue in the hopes that we could bring it to appropriate closure.” (R S p 467).
The following day, on August 23, 2013, Mr. Boyle repeated his directive to Vincoli to not waste any more of DPS leadership time with it. (R S pp 456-457).
Mr. Boyle added: You might be completely correct about your conspiracy theory of fraud from five years ago (or whenever it was). If so, as I told you yesterday, you are fully empowered to pursue that cause on your own. If you really want to “do the right thing,” you can do it by taking your own action independent of DPS. (R S pp 456).
The list of proposed exemptions was thereafter approved by management, submitted to OSHR and approved by the governor.
By letter dated October 1, 2013, Vincoli was notified that his position had been designated as managerial exempt. (R S p 473).
Vincoli had no prior notice that his position was under consideration for exempt status. He was terminated on December 9, 2013.
The foregoing evidence is sufficient to create an issue of fact that there is a causal link between Vincoli’s protected activity and the designation of his position as exempt which then permitted DPS to terminate his employment without cause.
B. It would be unfair and unjust to apply the doctrine of res judicata under the circumstances of this case.
The ALJ’s Final Decision dismissing this case on the grounds of res judicata is erroneous for a second reason. As Judge Dietz stated in his concurring opinion in the prior appeal, “this is not an ordinary case.” It is not a case to which the doctrine of res judicata can be fairly applied. It would be unfair and unjust to apply res judicata in these unique circumstances.
The application of the doctrine of res judicata is not without limitation. Shelton v. Fairley, 72 N.C. App. 1, 5, 323 S.E.2d 410, 414 (1984), disc. review denied, 313 N.C. 509, 329 S.E.2d 394 (1985).
Courts have carved out exceptions to the doctrine of res judicata based upon policy reasons. Id. The doctrine is to be construed with strictness. Id.
Therefore, res judicata should “be applied in particular situations as fairness and justice require,” and not “so rigidly as to defeat the ends of justice or so as to work an injustice.” Edwards v. Edwards, 118 N.C. App. 464, 471–72, 456 S.E.2d 126, 130–31 (1995), citing 46 Am.Jur.2d Judgments § 522, at 786-87 (1994).
In other words, the doctrine will apply, except under special circumstances or special cases. In re Trucking Co., 285 N.C. 552, 560, 206 S.E.2d 172, 178 (1974).
Viewed from the standpoint of “fairness” and “justice,” this is one of those special cases or circumstances in which the rigid application of the doctrine of res judicata is inapplicable.
It would be neither fair nor just to bar Vincoli’s present contested case.
He filed a declaratory judgment action in lieu of appealing the dismissal of the original contested case.
This Court found that Vincoli is entitled to a hearing in OAH.
In summary, it is undeniable that the dismissal of Vincoli’s original contested case by the ALJ for lack of subject matter jurisdiction was erroneous as a matter of law.
This Court stated that “Nothing in this opinion shall be construed to prejudice any right Vincoli may have to seek a contested case hearing under N.C. Gen. Stat. § 126-5(h).”
OAH does have jurisdiction of Vincoli’s claim that his position was improperly classified as managerial exempt.
4. The evidence is sufficient to suggest that DPS’s purported reason for designating Vincoli’s position as exempt is pretextual.
DPS contends that Vincoli has no evidence that the proffered reason for terminating his employment is a pretext.
However, Vincoli can rely upon circumstantial evidence that the adverse employment actions were retaliatory and the proffered reasons pretextual. Newberne v. Dep’t of Crime Control and Public Safety, 359 N.C. 782, 790, 618 S.E.2d 201, 207 (2005).
DPS claims that Vincoli’s position was made exempt in accordance with the guidelines established by OSHR and in the same manner as all other positions in DPS. (R S p 210).
That may very well be true, but it does not necessarily mean that Vincoli’s position actually met the statutory definition of managerial exempt. (R S pp 468-472). See N.C. Dep’t of Transp. v. Hodge, 347 N.C. 602, 499 S.E.2d 187 (1998) (Hodge’s position did not meet the statutory definition of policymaking exempt).
An exempt managerial position is “a position delegated with significant managerial or programmatic responsibility that is essential to the successful operation of a State department, agency, or division.” N.C. Gen. Stat. § 126-5(b)(2).
DPS did not produce a worksheet or other documentation of analysis of Vincoli’s position demonstrating how it met the definition of managerial exempt.
In fact, the evidence is that Vincoli was effectively demoted in January 2013. He reported to a lower level manager who was not exempt. He was no longer called upon for development of policy. He supervised no employees.
Two months after he was terminated, his position was deemed unnecessary to the department’s key functions and was reclassified to a nurse director position. (R S p 465-466).
These facts serve to sufficiently discredit DPS proffered non-retaliatory reasons for designating Vincoli’s position as exempt and terminating his employment.
Where credibility is at issue, summary judgment is not appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Landrum v. Armbruster, 28 N.C. App. 250, 254, 220 S.E.2d 842, 844 (1976) (Plaintiff was entitled to have the issue determined by the trier of the facts after a trial in which credibility of all witnesses could be properly determined).
Therefore, the ALJ erred as a matter of law in dismissing Vincoli’s petition for a contested case and motion in the cause.
For the foregoing reasons, Vincoli respectfully requests that Court of Appeals reverse the administrative law judge’s Final Decision granting Respondent’s Motion for Summary Judgment and dismissing Vincoli’s contested case and remand the case to the Office of Administrative Hearings with instructions to conduct an administrative hearing.
This the 14th day of July, 2017.
As stated by NC State Senator Joyce Krawiec:
“I believe that what happened to him was terribly wrong,” she said.
“We are always encouraging people to do the right thing, and ‘when you see something, say something.’ I want to make sure that when brave citizens speak out against errors, fraud, injustice, etc., they are protected from retaliation.
“A citizen should never be punished for doing the right thing.”
Sadly, in North Carolina it appears that the State punishes citizens when they report issues that involve hospitals. As I told Modern Healthcare, 'the reality in North Carolina is that the State and the hospitals are the same entity.'