amended complaint.pdf

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISIION Civil Action No: 5:14-CV-432-BO

MARY C. WILLINGHAM, ) ) Plaintiff, ) ) v. ) AMENDED COMPLAINT ) THE UNIVERSITY OF NORTH ) CAROLINA, a body politic and ) corporate institution of the State of ) North Carolina; THE UNIVERSITY ) Of NORTH CAROLINA AT ) CHAPEL HILL, a constituent ) institution of the University of ) North Carolina; CAROL LYNN ) FOLT, sued in her individual and ) official capacities; JAMES ) WARREN DEAN, JR., sued in his ) individual and official capacities; ) ROBERTA ANN OWEN, sued in ) her individual and official capacities;) and UNNAMED OTHERS; ) ) Defendants. )

NOW COMES plaintiff MARY C. WILLINGHAM (Plaintiff), by and through counsel

pursuant to Fed. R. Civ. P. 8 and 15, complaining against defendants, THE UNIVERSITY OF

NORTH CAROLINA (individually UNC and collectively Defendants), a body politic and

corporate institution of the State of North Carolina; and THE UNIVERSITY OF NORTH

CAROLINA at CHAPEL HILL (individually UNC-CH and collectively Defendants), a

constituent institution of The University of North Carolina; CAROL LYNN FOLT (individually

Folt and collectively Defendants), sued in her individual and official capacities as chancellor

of UNC-CH; JAMES WARREN DEAN, JR. (individually Dean and collectively

Case 5:14-cv-00432-BO Document 19-1 Filed 10/10/14 Page 1 of 29

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Defendants), sued in his individual and official capacities as provost for UNC-CH; ROBERTA

ANN OWEN (individually Owen and collectively Defendants, sued in her individual and

official capacities as senior associate dean at UNC-CH; and UNAMED OTHERS (individually

Others); alleges and says as follows:

PARTIES:

1. Plaintiff is a citizen and resident of Orange County, North Carolina and at all

times relevant herein has been entitled to the rights and protections conferred by the First

Amendment of the United States Constitution and the North Carolina Whistleblower Act,

pursuant to N.C. Gen. Stat. 126-84, et seq. (Whistleblower Act).

2. Defendant UNC is a body politic and corporate institution within the State of

North Carolina that is organized and exists pursuant to N.C. Gen. Stat. 116-1, et seq. As such,

Defendant UNC is a State institution that is empowered to sue and be sued.

3. Defendant UNC-CH is a constituent institution of defendant UNC that is

organized and exists pursuant to N.C. Gen. Stat. 116-4, et seq. As such, Defendant UNC-CH is

a State institution that is empowered to sue and be sued. Defendant UNC-CH is located in

Orange County, North Carolina.

4. On information and belief, Defendant Carol Lynn Folt is a citizen and resident of

Orange County, North Carolina. Since at least July 1, 2013, Defendant Folt has served as

chancellor for UNC-CH and is hereby being sued in her individual and official capacities as the

chancellor.

5. At all times relevant herein, Defendant Folts actions or inactions, as alleged

herein, were done under the color of state law while she was physically present in Orange

County, North Carolina.


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6. On information and belief, Defendant James Warren Dean, Jr. is a citizen and

resident of Orange County, North Carolina and, at all times relevant herein, has served as provost

for UNC-CH and is hereby being sued in his individual and official capacities as the provost.

7. At all times relevant herein, Defendant Deans actions or inactions, as alleged

herein, were done under the color of state law while he was physically present in Orange County,

North Carolina.

8. On information and belief, Defendant Roberta Ann Owen is a citizen and resident

of Orange County, North Carolina. From 2004 to 2014, Defendant Owen served as the senior

associate dean for undergraduate education in UNC-CHs College of Arts and Sciences. As the

senior associate dean, Defendant Owen exercised supervisory authority over Plaintiff at all times

relevant herein and is being sued in her individual and official capacities as senior associate

dean.

9. At all times relevant herein, Defendant Owens actions or inactions, as alleged

herein, were done under the color of state law.

10. Other unnamed Defendants may include others, who are not presently known to

Plaintiff at this time, who were acting under the color of state law and who were instrumental in

causing or condoning the retaliation that Plaintiff experienced, as alleged herein, when those

persons had a legal duty to protect Plaintiff from retaliation for exercising her legal rights.

11. On information and belief and at all times relevant herein, UNC-CH was under

the supervision and control of UNC and Defendant Folt. Further, on information and belief and

at all times relevant herein, Defendants Dean and Owen were under the supervision and control

of UNC, and Defendant Folt. Finally, on information and belief and at all times relevant herein,

Defendant Owen and Unnamed Others were under the supervision and control of Defendants

UNC, Folt, and Dean.


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12. On information and belief, at all times relevant herein, Defendant UNC has been

statutorily obligated to supervise the actions of administrators at UNC-CH and to ensure that

UNC-CH and its supervisors at all times comply with the law.

13. On information and belief, Defendants individually and severally knew or should

have known the acts or omissions, that UNC-CH through its managers and supervisors took

against Plaintiff in violation of the First Amendment to the Constitution of the United States, the

North Carolina Constitution, and the North Carolina Whistleblower Act, but refused or otherwise

failed to remediate such actions or omissions to act when each of the Defendants had a duty, as

alleged herein.

14. At all times relevant herein, Defendants Folt, Dean, Owen, and Unnamed others

were decision-makers, or otherwise purposefully influenced the decision-maker(s), in the adverse

actions that UNC-CH took against Plaintiff, as alleged herein.

JURISDICTION AND VENUE:

15. The Court has jurisdiction over this lawsuit, pursuant to 28 U.S.C. 1331 and

1343(a)(3).

16. The jurisdiction of this Court is invoked over claims arising under 42 U.S.C.

1983, the First and Fourteenth Amendments to the United States Constitution, and ancillary

jurisdiction over claims arising under N.C. Gen. Stat. 126-84, et seq. (Whistleblower Act) in

that the claims are factually interdependent.

17. The original complaint in this matter was filed on June 30, 2014, which date was

within one year (1) after the occurrence of the last act of retaliation, as alleged herein, pursuant

to the Whistleblower Act.

18. This amended complaint asserts claims that arose out of the same conduct,

transaction, or occurrences as that set out in the original complaint for this action.


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ADMINISTRATIVE PROCEDURES:

19. On July 1, 2013, Plaintiff filed an EPA Non-Faculty Grievance with UNC-CHs

human resources department to complain about the retaliation that she experienced from

Defendants related to her work demotion and change of work conditions, as alleged herein.

20. To the extent that Plaintiff was required to exhaust her administrative remedies

prior to the filing of this action, which is denied, Plaintiff did not exhaust her administrative

remedies for her claims of retaliation because doing so was and would have been futile and

inadequate for the following reasons:

A. The administrative remedies then available to Plaintiff would deprive Plaintiff

of her right to recover her full measure of damages against Defendants,

including that for back pay, mental anguish, pain, humiliation, inconvenience

and damage to professional reputation and other damages that she could

recover in this civil action;

B. The administrative remedies then available to Plaintiff would deprive Plaintiff

of her ability to recover treble damages and reimbursement for her attorney

fees that she could recover in this civil action;

C. The administrative remedies then available to Plaintiff would deprive Plaintiff

of her statutory right to a trial by jury;

D. The administrative remedies then available to Plaintiff would deprive Plaintiff

of her ability to sue any defendant who caused her harm and losses in an

individual capacity;

E. The administrative remedies then available to Plaintiff would deprive, and did

deprive, Plaintiff of an ability to obtain prompt and effective redress of the

retaliation that she faced on a daily work basis. After waiting for more than


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one year after the filing of her grievance, as referenced above, Plaintiff still

had no final decision from the UNC-CHs Board of Trustees.

F. At all times relevant herein, Defendants have failed to post sufficient notice in

accordance with N.C. Gen. Stat. 95-9, or otherwise use appropriate means,

to keep its employees, including Plaintiff, informed of their protections and

obligations under the Whistleblower Act, as required by N.C. Gen. Stat.

126-88. On information and belief, UNC-CHs Whistleblower policy

(which is not labeled as such) repeats only some portions of the law, but failed

to inform UNC-CH employees, including Plaintiff, that the employees had the

option to file a civil action for damages in superior court (within one year) or

could file an administrative grievance with UNC-CH (within only 30 days),

but could not file both a civil action and an administrative grievance and

failed to advise employees to seek the advice of personal legal counsel prior to

making the decision; and

G. Any final decision by UNC-CHs Board of Trustees, Plaintiff would not have

been informed by UNC-CH of her right to file a petition for judicial review of

the decision.

21. To the extent required, Plaintiff has satisfied all private, administrative, and

judicial prerequisites for the institution of this action.

COMMON ALLEGATIONS:

Plaintiffs Employment at UNC-CH

22. Around October 2003, UNC-CH hired Plaintiff to serve as contract employee in

the capacity of a part-time learning specialist for UNC-CHs athletic department.


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23. As a learning specialist, Plaintiffs job responsibilities were centered on assisting

university athletes, some of whom had learning disabilities, to succeed academically at the

undergraduate level.

24. Around December 2004, UNC-CH promoted Plaintiff to serve as a full-time

learning specialist in the athletic department. Although Plaintiffs job responsibilities remained

essentially the same, Plaintiff began working extensively with athletes from UNC-CHs

revenue sports, consisting mostly of the football and basketball teams.

25. At all times while she served as a learning specialist, Plaintiff met or exceeded the

reasonable work expectations of her employer Defendants.

26. By the 2008-2009 academic year, Plaintiff became disillusioned by what she had

been experiencing first-hand as a learning specialist. Specifically, Plaintiff became increasingly

troubled by the widespread inappropriate, unethical, and corrupt academic assistance that she had

personally witnessed various student-athletes receiving from UNC-CHs officials and staff.

27. Because of this disillusionment, Plaintiff began looking for other employment

outside of the athletic department, but within the areas of academic support, during the 2008-

2009 academic year.

28. On or about January 15, 2010, UNC-CH hired Plaintiff to serve full-time as an

assistant director for UNC-CHs Center for Student Success and Academic Counseling (the

CSSAC).

29. On information and belief, Defendants categorized this assistant director position

at the Center as an at-will non-faculty position.

30. As assistant director, Plaintiff reported directly to Harold Woodard (Woodard),

the associate dean and director for the CSSAC. Instead of focusing solely on athletes, the


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assistant director position for the CSSAC permitted Plaintiff to assist with helping all

undergraduate students, including athletes, on an academic basis.

31. On information and belief, CSSACs stated mission was dedicated to promoting

academic excellence to assist students in achieving their academic goals while enrolled at

Carolina [UNC-CH].

32. Upon Plaintiff being named assistant director, CSSAC had been composed of four

constituent programs: Learning Center, Center for Student Academic Counseling, Summer

Bridge, and Writing Center. On information and belief, the stated purpose of these constituent

programs was to provide support for students in developing the skills and strategies needed to

achieve academic success.

33. As an assistant director, Plaintiff was responsible for training tutors and

overseeing, evaluating, and managing CSSACs programs.

34. Eventually, as part of her duties as assistant director, Plaintiff also served as a

clinical instructor for UNC-CHs School of Education. As a clinical instructor, Plaintiff was

assigned to the Teaching and Learning area and taught peer tutoring courses whenever needed.

35. At all times while she served as an assistant director, Plaintiff met or exceeded the

reasonable work expectations of Defendants.

36. During her tenure as assistant director, Plaintiff played a substantial part in the

following accomplishments:

A. Led project management for supplemental instruction, tutoring, education

course/peer tutoring program, and graduate assistants;

B. Redeveloped the community tutor board;

C. Created and marketed five new/updated programs to students and faculty;


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D. Communicated new programming to cohort leaders of diverse targeted student

groups;

E. Wrote and piloted a speed reading program based on needs assessments of

graduate and undergraduate students;

F. Led the effort to re-design CSSAC using a five pillar approach, which led to a

shift in culture;

G. Marketed programs on campus via internet, television prompts, and movable

walkway signs;

H. Developed social networking sites for CSSAC including Facebook and

twitter;

I. Redirected staff to measurable result-focused orientation through

establishment of electronic data collection system;

J. Developed and completed live time data collection using technology for all

programming;

K. Updated the center to a total online registration and evaluation along with

calendar appointment system for 28,000 students to access;

L. Wrote and executed animation videos to communicate skills and strategies to

students;

M. Coordinated and supervised staff to support projects with team approach as

well as constant communication updates of progress using data collection

tools;

N. Reserved and coordinated facilities for programming that served over 5000

students;

O. Advised and counseled undergraduate students on coursework;


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P. Facilitated registration with and for students during all semesters including

summer; and

Q. Co-supervised five professionals, student office assistants and graduate

student; among her many work accomplishments.

UNC-CHs Academic Programs for Athletes Become a National Scandal

37. Around July 2011, UNC-CHs former football player, Michael McAdoo

(McAdoo), filed a civil action against UNC-CH and the National Collegiate Athletic

Association (NCAA) for damages and to restore his eligibility to play college football.

McAdoo had been dismissed from the football team and declared ineligible by the NCAA, in

part, for having accepted inappropriate academic help from a UNC-CH tutor. Media

organizations throughout the nation covered the litigation of McAdoos claims.

38. McAdoos lawsuit brought forth a firestorm of media coverage and scrutiny of

UNC-CHs academics for athletes in the revenue generating sports of football and basketball

(collectively revenue sports).

39. Following McAdoos lawsuit and continuously to this date, various issues

pertaining to UNC-CHs academic integrity and athletics in the revenue sports have garnered

national coverage by the media. The national, state, and local media have reported on the

following allegations and more:

A. That the chair of UNC-CHs Department of African and Afro-American

Studies (DAAAS) taught classes where enrolled students, many

consisting of scholarship athletes in the revenue sports, only met a few times,

if at all, for class sessions;

B. That there were 40 or more courses where there was little-to-no evidence that

any professor had taught the courses (no show classes) and that the majority


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of enrollments in the no show classes consisted of UNC-CH athletes in the

revenue sports;

C. That UNC-CH athletes had been placed in certain no show classes to obtain

and/or retain NCAA eligibility status to compete;

D. That multiple courses had forged signatures on submitted grade rolls;

E. That gross grade inflation was being applied for athletes in the revenue sports

who were not able to read or write at the college level in an effort to maintain

their eligibility to compete;

F. That there were 200 lecture-style courses that were confirmed or suspected of

having never held class, dozens of independent studies courses with little-

to-no supervision, and 560 suspicious grade changes for athletes dating

back many years;

G. That a sports agent had been hired by the chair of UNC-CHs DAAAS to

teach a class composed in part of scholarship athletes;

H. That UNC-CH athletes accounted for around 45 percent of the enrollments in

the no show classes over a 10-year period, while consisting of less than 5

percent of the undergraduate student body;

I. That academic tutors were writing papers for UNC-CH athletes in the revenue

sports for the athlete to receive the grades on the work performed by the

tutors; and

J. That UNC-CH counselors had steered UNC-CH athletes in revenue sports

to the no show courses as GPA boosters. (collectively athletic scandals)


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Plaintiff Engaged in Protected Activity

40. On or about September 2010, Plaintiff reported in good faith to a staff attorney for

UNC-CHs Office of University Counsel her personal knowledge about academic fraud and

cheating in the athletic department, including specific violations of NCAA regulations. Plaintiff

reported among other things such as academic mentors or tutors completing the work for UNC-

CH athletes to artificially keep or make the athletes eligible to compete pursuant to NCAA

regulations by meeting minimum grade point average regulations even though the athletes were

not able to do college level and even high school level work. Plaintiff reported that the coaches

for revenue sports were directing academic advisors to keep the players eligible under NCAA

regulations. The meeting lasted for approximately two and one-half hours.

41. Plaintiff never heard back from UNC-CHs counsel once she reported the

improper, unethical, illegal, and corrupt conduct. In light of receiving no follow up from the

Office of University Counsel, Plaintiff began to believe that the only way to effectively bring

integrity back to academics for athletes in revenue sports was for her to report personal

knowledge in good faith to sources outside the UNC-CH community.

42. Around summer 2011, Plaintiff established contact with Dan Kane (Kane), a

writer for the Raleigh News & Observer (N&O) newspaper. Plaintiff maintained direct contact

with Mr. Kane for many months thereafter.

43. During her discussions with Mr. Kane, Plaintiff would inform him and answer his

questions concerning her personal knowledge about the academic fraud in UNC-CHs athletic

department. Plaintiff described the bogus paper class system that was designed to keep

athletes in revenue sports artificially eligible under NCAA regulations by intentionally causing

a misrepresentation of the athletes true grade point average and to misrepresent many UNC-CH

athletes in revenues sports inability to perform college -evel and even high school-level work.


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Plaintiff explained that without this fraudulent system, UNC-CH athletes would never have been

academically eligible under either UNC-CHs internal regulations or under NCAA regulations.

44. Soon after Plaintiffs initial contact with Mr. Kane, Plaintiff informed her

immediate supervisor that she was speaking with the N&O about her personal knowledge

concerning issues related to the athletic scandals that had been reported by the media throughout

the state and nation.

45. On or about October 2012, Plaintiff started a blog where she at times reported in

the public domain about some of her own personal knowledge about issues related to the athletic

scandals at UNC-CH, as alleged herein, that had been reported by the media throughout the

North Carolina and the United States.

46. Plaintiff made these statements in the public sphere on her blog in good faith for

purposes of helping to stop the improper, unethical, and corrupt treatment and services that

UNC-CH faculty and/or staff were providing UNC-CH athletes.

47. On or about October 2012, Plaintiff reported in good faith to UNC-CHs agent,

James Martin, about her personal knowledge concerning the academic fraud in the athletic

department, including the paper class and no show class systems that UNC-CH used to

artificially maintain many of their athletes eligibility to compete in the revenue sports under

NCAA regulations.

48. Plaintiff also shared her data with James Martin on the low admissions standards

that permitted a significant number of woefully underprepared athletes of the revenue sports to

matriculate at UNC-CH. On information and belief, UNC and/or UNC-CH had hired James

Martin to gather evidence regarding the athletic scandals.

49. On or about November 17, 2012, Plaintiff informed her N&O contact, Mr. Kane,

about the academic cheating in UNC-CHs athletic department for athletes in the revenue sports.


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50. Plaintiff truthfully explained to Mr. Kane how some UNC-CH athletes who were

not even able to perform college-level work would register for the paper classes and/or the no

show classes. Plaintiff further truthfully explained to Mr. Kane how plagiarism by some of the

UNC-CH athletes in revenue sports was tolerated by UNC-CH faculty and staff.

51. On or about November 18, 2012, the N&O published segments of its interview

with Plaintiff to report about the improper, unethical, illegal, and corrupt academic services and

treatment that some UNC-CH faculty and staff were providing to, or otherwise acquiescing for,

many UNC-CH athletes in revenue sports.

CNNs Special Report

52. From February 23, 2013 to July 2013, Plaintiff met in person with numerous

UNC-CH officials, including the chancellor and several deans, to discuss Plaintiffs research

findings regarding the improper, unethical, and corrupt treatment and services that UNC-CH

faculty and/or staff were providing to UNC-CH athletes in revenue sports.

53. Plaintiffs purpose in meeting with UNC-CH officials to report in good faith her

personal knowledge was to cause potentially positive changes and help return academic integrity

to UNC-CH academics for athletes in the revenue sports. Her efforts were to no avail.

54. On or about July 2013 and again during the fall of 2013, Plaintiff emailed various

UNC-CH officials, including the provost and members of the Faculty Athletic Council, to share

the findings of Plaintiffs research. Plaintiff again hoped that her meetings would serve as a

catalyst for positive changes and help return integrity to UNC-CH academics for many athletes

in revenue sports. Her efforts were to no avail.

55. Just prior to January 8, 2014, Plaintiff met for an interview with Sara Ganim, a

news correspondent at Cable News Network (CNN). During the meeting, Plaintiff informed

Ms. Ganim in good faith about her research concerning the low reading and writing scores of


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admitted UNC-CH athletes in the revenue sports. This was the same research that Plaintiff had

attempted to discuss with the UNC-CH officials, as alleged above, but received little to no

interest by them.

56. On or about January 8, 2014, following Plaintiffs interview with Ms. Ganim,

CNN broadcasted nationally a special report on the reading abilities of college athletes.

57. In this special report, CNN cited Plaintiff and her research, which indicated that

a subset of UNC-CH athletes who were suspected of having academic challenges were reading

mostly below the high school grade levels. In this national broadcast of the special report,

CNN cited Plaintiff as being the UNC-CH employee who had conducted the research.

58. On or about January 17, 2014, Defendant Dean and Defendant Folt falsely

informed the attending members of the UNC-CH Faculty Council that Plaintiffs research into

UNC-CHs athlete literacy, as reported by CNN, was so flawed that it had no merit.

59. During this Faculty Council meeting of January 17, 2014, Defendants Dean and

Folt publically referred to Plaintiffs research as a travesty and called Plaintiff a liar before

all the attending members of the UNC-CH Faculty Council. Defendants Dean and Folts

decision to refer to Plaintiff before the entire Faculty Council as a liar and her research as a

travesty caused Plaintiff substantial harms and losses to her professional reputation and

otherwise. At no time had Plaintiff ever been intentionally untruthful or dishonest in her

dealings with Defendants.

The Three Reviewers

60. On or about April 11, 2014, three outside reviewers, serving as agents of UNC-

CH, publically disputed Plaintiffs athlete literacy claims that were broadcasted nationally in

CNNs special report. The reviewers asserted that Plaintiff overstated how many athletes were


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subpar readers, and used a test not recommended for determining reading ability at the grade

level.

61. On information and belief, UNC-CH used the agent reviewers to retaliate

against Plaintiff because of her having been truthful during her interview by Ms. Ganim at CNN

about the academic fraudulent system at UNC-CH for athletes in revenue sports. At no time did

any of the reviewers ever speak with Plaintiff to discuss her findings or otherwise obtain all of

the information that Plaintiff used to arrive at her research findings.

62. On information and belief, Defendants spent approximately $500,000.00 over a

24-month period to wage a public relations campaign against Plaintiff and against the truth of

what Plaintiff had asserted as it pertained to the improper, unethical, illegal, and corrupt

treatment and services that UNC-CH faculty and staff had been providing to UNC-CH student

athletes in the revenue sports.

63. On information and belief, UNC-CH arranged for and used the Reviewers as its

agents in an effort to disingenuously and unfairly malign the professional reputation of Plaintiff

in a misguided effort to protect what UNC-CH thought was its interests.

UNC-CHs Reprisal and Retaliation against Willingham

64. Around April 30, 2013, on information and belief, then Chancellor Holden Thorp

forwarded to his successor, Defendant Folt, a recording of a speech that Plaintiff had given to

members of a public interest group, the Drake Group, which detailed the academic fraud that

UNC-CH had been engaged in with its athletes in revenue sports, as alleged herein.

65. On information and belief, on or after April 30, 2013, Defendant Folt listened to

the speech given by Plaintiff to the Drake Group and then decided shortly after with Defendant

individuals to retaliate against Plaintiff for having continued to expose the academic fraud at

UNC-CH.


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66. On or after June 30, 2013, UNC-CH through its managers informed Plaintiff that,

effective July 1, 2013, about the following changes:

A. That Plaintiff would receive a demotion in rank and title;

B. That Plaintiff would thereafter be required indefinitely to report to weekly

meetings with her supervisor (which were not required for other employees);

C. That Plaintiff would receive additional extensive job duties, which were

clerical in nature and not in areas related to her career path;

D. That the additional job duties not related to her career path would require

Plaintiff to receive extensive training over the summer (thus, requiring

Plaintiff to cancel immediately any summer vacation plans);

E. That Plaintiff would no longer be serving as an academic advisor to

undergraduate students, but would instead only be a graduation advisor for

senior year students (which is clerical work in nature and outside Plaintiffs

career path);

F. That Plaintiff was permitted thereon to see only senior year students for

advising. UNC-CHs supervisors directed Plaintiff to cease immediately

having any more contacts with students with whom Plaintiff had been serving

in the capacity of academic coach and had built a mentor-student relationship

for up to two years;

G. That Plaintiffs work hours would be strictly enforced during the afternoons

(which on information and belief was designed to and in fact did isolate

Plaintiff and prevent her from being able to attend the regular faculty meetings

and athletic reform group meetings, both of which took place during the

afternoons and were necessary for professional growth);


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H. That Plaintiff would be required to provide written requests for all time off for

sick, vacation, and personal leave to her immediate supervisor (when other

employees in positions similar to Plaintiff would not be so required);

I. That Plaintiff must submit the written request for sick, vacation, and personal

leave to her supervisor at least 30 days prior to any need for sick, vacation,

and/or personal leave and that some of the requests would be denied;

J. That Plaintiff would be required immediately to split her existing office into

two offices located approximately mile from each other. UNC-CH directed

Plaintiff to move immediately her then existing office in the Student and

Academic Services building to an office in the basement of the Student and

Academic Services building with substantially poorer work conditions;

K. That for the weekday morning hours, Plaintiff would be required to work out

of her basement office in the Student and Academic Services building. But

during the weekday afternoon hours, Plaintiff would be required to work out

of UNC-CHs Steele building, an approximate mile walk from her

basement office; and

L. That when she used the office in the Steele building during the afternoons,

Plaintiff would be required to share this office with a retired professor even

though the office was only big enough for one person to use at a time (thus,

frequently placing Plaintiff in the awkward position of having to ask the

retired professor if he would not mind leaving the office so that she could use

the office during any given afternoon);


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M. That Plaintiff would be required to work office hours for students at times

when faculty meetings were being conducted for purposes of excluding

Plaintiff from the same. (collectively adverse employment actions)

67. In light of the sanctions that Defendants issued Plaintiff effective July 1, 2013, as

alleged herein, each day those sanctions collectively rose to the level of being severe and

pervasive unwelcomed retaliatory treatment against Plaintiff for having engaged in the protected

activity, as alleged herein.

68. On and continuously after July 1, 2013, Defendants retaliated against Plaintiff by

providing her with a hostile work environment and purposefully failing or refusing to take

prompt and effective remedial action to eradicate Plaintiffs hostile work environment in

retaliation against Plaintiff.

69. In addition to that listed in the preceding paragraphs, Defendants created and

condoned a hostile work environment for Plaintiff in at least the following manner:

A. Taking the adverse employment actions, as alleged in paragraph 65, which are

incorporated herein by reference on a day-to-day basis;

B. When UNC-CHs provost, Defendants Dean and Folt, personally attacked

Plaintiffs character and called her a liar at a faculty meeting during

February 2014;

C. When UNC-CH would frequently submit false claims and accusations against

Plaintiff after July 1, 2013 that Plaintiff had been engaged in multiple

violations of Family Educational Rights and Privacy Act (FERPA) and

Health Insurance Portability and Accountability Act (HIPAA) in an effort to

intimidate Plaintiff and to harass Plaintiff by requiring her immediately to

redo training pertaining to these statutes;


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D. When UNC-CH would fail to or otherwise cause inordinate delay in handling

Plaintiffs complaints about her treatment, including the filing of a grievance

pursuant to UNC-CHs policies and procedures;

E. Various UNC-CH faculty and staff would remove and exclude Plaintiff from

group email lists for purposes of regular business communication;

F. Permitted and refused to remediate Plaintiffs hostile work environment in a

prompt and effective manner. (collectively adverse employment actions).

70. On a regular basis after July 1, 2013, Plaintiff submitted formal and informal

demands directly and through legal advocates to UNC and to UNC-CH regarding the retaliation

and hostile work conditions she was experiencing, but received no response from Defendants.

71. On March 6, 2014, Louis Clark, Esq., president of the Government Accountability

Project in Washington D.C., sent a letter on behalf of Plaintiff to Defendant Folt, the UNC

President, Thomas W. Ross, and the UNC Board of Governors Chair, Peter Hans, to detail and

complain about the retaliation and hostile work environment that Plaintiff faced in the

workplace on a regular basis. A true copy of this letter is attached as Exhibit A and is

incorporated herein by reference.

72. On information and belief, no one on behalf of UNC, UNC-CH, or otherwise to

Mr. Clarks letter dated March 6, 2014 or otherwise contacted Plaintiff regarding the same.

73. On May 6, 2014, Louis Clark, Esq. sent another letter on behalf of Plaintiff to

UNC President, Thomas W. Ross, the UNC Board of Governors Chair, Peter Hans and

Defendant Folt, to inform them that he had not received any response to his previous letter dated

March 6, 2014 and to reiterate the hostile work environment that Plaintiff had been experiencing

the workplace. A true copy of this letter is attached as Exhibit B and is incorporated herein by

reference.


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74. On information and belief, no one on behalf of UNC, UNC-CH or otherwise

responded to Mr. Clarks letter dated May 6, 2014 that complained about and detailed some of

the hostile work environment that Plaintiff was experiencing in the workplace.

FIRST CLAIM FOR RELIEF: (42 U.S.C. 1983-Retaliation for Exercise of First Amendment Rights)

75. The foregoing allegations are hereby realleged and fully incorporated herein by

reference as if fully set forth herein.

76. As alleged herein, Plaintiff met with members of the media and others to report

truthfully and accurately her personal knowledge about the inappropriate, unethical, illegal, and

corrupt services that UNC-CH faculty and staff had been providing to some UNC-CH athletes,

particularly those in the revenue sports.

77. As alleged herein, during her meetings, Plaintiff informed the members of the

media and others about the academic fraud that some of UNC-CH faculty and staff had been

engaged in to inappropriately assist some UNC-CH athletes in revenue sports in an effort to

maintain academic eligibility for those athletes, particularly the ones who could not read or write

at the high school or lower levels. As alleged herein, Plaintiff informed the media and others

about the no show classes and paper classes that some UNC-CH faculty and staff directed

some UNC-CH athletes to take; how some UNC-CH faculty and staff guided some UNC-CH

athletes to major in subject areas that consisted of little to no academic accountability in an effort

to maintain those athletes eligibility in the revenue sports; and how tutors would purposefully

write papers for some of the UNC-CH athletes for purpose of having UNC-CH athletes

plagiarize the same for academic credit.

78. The acts and practices that Plaintiff informed the media, as alleged herein, were

designed by some UNC-CH faculty and staff as a way avoid the minimal grade standards for


22

some UNC-CH athletes who would not otherwise be able to maintain sufficient grades to

compete in the revenue sports. These acts and practices directly violated the NCAA regulations

pertaining to academic eligibility and, as a result, purposefully placed UNC-CH revenue sports at

an unfair advantage over other universities under the regulatory authority of the NCAA.

79. At all times relevant herein, Plaintiff engaged in temperate speech with the media

on matters of public interest protected by the First Amendment of the United States Constitution.

80. At the time of Defendants actions, as alleged herein, it was clearly established

law that a state, including a state university and officials thereof, cannot retaliate against an

employee on a basis that infringes on that employees constitutionally protected interest in free

speech. Rankin v. McPherson, 443 U.S. 378, 383 (1987).

88. Plaintiff also authored various reports that she published to the public in her

personal blog that reported truthfully and accurately her personal knowledge about the

inappropriate, unethical, illegal, corrupt services that UNC-CH faculty and staff would provide

to UNC-CH athletes, particularly those in the revenue sports, as alleged herein.

89. When Plaintiff spoke publically and to members of the media about her athletic

academic concerns at UNC-CH, Plaintiff was speaking as a citizen upon matters of public

concern, as evident by the news coverage, inter alia.

90. At all times relevant herein, Plaintiffs interests in speaking upon the matters of

public concern, as alleged herein, outweighed Defendants interests in managing its working

environment.

91. On information and belief, Plaintiffs speaking as a citizen upon matters of public

concern, as alleged herein, was a substantial factor in Defendants decisions to retaliate against

Plaintiff as alleged herein in paragraphs 66 and 69, supra, which are incorporated herein by

reference.


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92. As a direct and proximate result of Defendants acts of reprisal against Plaintiff,

as alleged herein, Plaintiff has incurred and sustained harms, losses and other damages in an

amount to be determined at trial, but in excess of $10,000.00.

SECOND CLAIM FOR RELIEF: (Whistleblower Claim Act ClaimN.C. Gen. Stat. 126-84, et seq)



94. At all times relevant herein, Plaintiff has been a State employee of the State of

North Carolina and subject to the protections and privileges contained in N.C. Gen. Stat. 126-

84, et. seq.

95. On information and belief, UNC-CH engaged in violations of NCAA regulations

when it steered some UNC-CH athletes in revenue sports to paper classes (i.e. courses where

the grade was based only on one paper that was turned in by the athlete but was not necessarily

prepared by the athlete), no show classes (classes where enrolled athletes were never required

to attend) and promoted or condoned institutional plagiarism (UNC-CH tutors who wrote papers

for the athletes to turn in for a grade under the athletes names) in an effort to artificially boost

and/or maintain the grade point averages of some of the UNC-CH athletes (many of whom could

not read or write at the high school grade level) so that those athletes would be eligible to

compete in the revenue sports and placing UNC-CH at an unfair advantage with the sports

programs of other universities.

96. When UNC-CH engaged in or otherwise condoned the actions and omissions, as

alleged in the preceding paragraph, UNC-CH engaged in fraud as it pertains to the affected

scholarship athletes in revenue sports.


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97. Under the NCAA system, when an athlete accepts a scholarship from a

university in lieu of monetary payments, which NCAA forbids, the athlete is said to receive his

or her proper remuneration in the value of the genuine collegiate education that the athlete

receives at no cost under the terms of the scholarship. So when UNC-CH engaged in institutional

deception in an effort to maintain scholarship athletes eligibility to compete in revenue sports

for UNC-CHs financial benefits, which were substantial, UNC-CH is in effective committing a

fraud against the scholarship athlete who, as a result, does not receive a genuine collegiate

education.

98. On information and belief, Defendants acts and omissions, as alleged herein,

constituted a misappropriation of state resources and constituted gross mismanagement and

waste of monies in addition to a gross abuse of authority.

99. N.C. Gen. Stat. 14-118.2 makes it a crime for any person, firm, corporation, or

association to assist any student or attempt to assist any student in obtaining or in attempting to

obtain, by fraudulent means, any academic credit, grade, test score, or any diploma, certificate or

other instrument purporting to confer any literary, scientific, professional, technical or other

degree in any course of study in any university or college.

100. At all times relevant herein, Plaintiff engaged in protected activity under N.C.

Gen. Stat. 126-84, et seq. when she reported to Defendants and the agents of Defendants (i.e.

university counsel, Mr. Martin, etc.) the no show classes, paper courses, institutional

plagiarism, violations of NCAA regulations and fraud, and other criminal violations of N.C. Gen.

Stat. 14-118.2, as alleged herein.

101. At all times relevant herein, Plaintiff engaged in protected activity under N.C.

Gen. Stat. 126-84, et seq., when she reported to Defendants and the agents of Defendants (i.e.


25

university counsel, Mr. Martin, etc.) the no show classes, paper courses, institutional

plagiarism, violations of NCAA regulations, and fraud, as alleged herein.

102. On information and belief, Defendants discriminated and retaliated against

Plaintiff because Plaintiff engaged in good faith in the protected activity, as alleged herein,

Defendants acted as alleged in paragraphs 66 and 69, supra, which are incorporated herein by

reference.

103. Defendants essentially punished Plaintiff for having reported the truth, as alleged

herein, which truth was protected by N.C. Gen. Stat. 126-84.

104. Defendants constructively terminated Plaintiffs employment by taking the adverse

employment actions against Plaintiff and creating and facilitating a hostile work environment

against Plaintiff through severe and pervasive work conditions that it imposed or permitted to be

imposed on Plaintiff on a daily basis from July 1, 2014 to May 2, 2014 when Plaintiff resigned

because of the same.

105. The adverse employment actions that Defendants took against Plaintiff

discriminated against the compensation, terms, conditions, location, or privileges of Plaintiffs

employment at UNC-CH.

106. On May 2, 2014, Plaintiff submitted her notice of resignation to her supervisor,

Harold Woodard, because of the hostile work environment and Defendants refusal to remediate

the same. A true copy of her resignation notice explaining the reasons is attached hereto as

Exhibit C and is incorporated herein by reference.

107. Defendants alleged reasons for taking the adverse employment actions against

Plaintiff were specious and served merely as a pretext to retaliate against Plaintiff because she

had been engaging in the protected activity.


26

108. Even if Defendants had valid or legitimate reasons for taking adverse action

against Plaintiff, which is denied, Defendants retaliatory animus was a substantial causative

factor for the adverse action that was taken against Plaintiff.

109. On information and belief, Defendants violations of N.C. Gen. Stat. 126-85

were willful and unjustified.

110. As a direct and proximate result of Defendants discrimination and retaliation

against Plaintiff, as alleged herein, Plaintiff has incurred harms and losses in an amount to be

proven at trial, but in excess of $10,000.00.

THIRD CLAIM FOR RELIEF (Defamation)



112. On or about January 17, 2014, Defendant Dean and Defendant Folt falsely

informed the attending members of the UNC-CH Faculty Council that Plaintiffs research into

UNC-CHs athlete literacy, as reported by CNN, was so flawed that it had no merit.

113. During the Faculty Council meeting on January 17, 2014, Defendant Dean and

Defendant Folt informed various faculty members at UNC-CH that Plaintiff was a liar for

having shared her personal research with CNN and others.

114. At no time was Plaintiff ever intentionally untruthful or dishonest in her

disclosures to CNN or others concerning the inappropriate, unethical, or corrupt acts of UNC-

CH, as alleged herein. Defendant Dean and Defendant Folts assertion to Plaintiff as being a

liar in what she communicated to CNN is false.


27

115. At the time that Defendant Dean and Defendant Folt referred to Plaintiff as a

liar to the UNC-CH Faculty Council, both Dean and Folt knew that the statement was false or

otherwise failed to exercise ordinary care to determine whether the statement was false.

116. As a direct and proximate result of Defendants Dean and Folts referring

publically and to UNC-CH faculty as a liar, as alleged herein, Plaintiff has incurred harms and

losses in an amount to be proven at trial, but in excess of $10,000.00.

DEMAND FOR JURY TRIAL:

Pursuant to Fed. R. Civ. P. 38(b) and 42 U.S.C. 1981a(c), Plaintiff hereby makes

demand for a trial by jury on all triable issues.

PRAYER FOR RELIEF:

WHEREFORE, Plaintiff prays unto the Court as follows:

1. That the Court issue a permanent injunction against Defendants jointly and

severally in favor of Plaintiff as follows:

A. That Defendants be required to reinstate Plaintiff to her employment with

Defendants; or alternatively at her election, that Plaintiff receive front pay

from Defendants; and

B. That Defendants, and their agents, managers, and employees be enjoined from

any further acts of discrimination or retaliation against Plaintiff;

2. That Plaintiff have and recover of Defendants, individually, jointly and severally,

the amount of all compensatory harms, losses, and damages in an amount to be determined at

trial, but in excess of $10,000.00, plus interest;

3. That Plaintiff recover from Defendants all court costs, including expert witness

fees, deposition costs, and attorneys fees, as permitted by law;


28

4. That Plaintiffs compensatory harms, losses, and damages be trebled pursuant to

N.C. Gen. Stat. 126-87;

5. That Plaintiff receive a jury trial as to all matters so triable;

6. That the Court grant Plaintiff such other and further relief as the Court deems just

and proper.

This the 10th day of October, 2014. /s/ J. Heydt Philbeck /s/ Philip A. Collins

J. Heydt Philbeck, Atty. Bailey & Dixon, LLP 434 Fayetteville Street, Suite 2500 Raleigh, North Carolina 27601 Telephone: (919) 828-0731 Facsimile: (919) 828-6592 Email: [email protected] N.C. State Bar # 19379 Philip A. Collins, Atty. Bailey & Dixon, LLP 434 Fayetteville Street, Suite 2500 Raleigh, North Carolina 27601 Telephone: (919) 828-0731 Facsimile: (919) 828-6592 Email: [email protected] N.C. State Bar # 29153 Attorneys for Plaintiff


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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION Civil Action No: 14-cv-432

MARY C. WILLINGHAM, ) ) Plaintiff, ) ) v. ) CERTIFICATE OF SERVICE ) THE UNIVERSITY OF NORTH ) CAROLINA AT CHAPEL ) HILL, et. al, ) ) Defendants. ) The undersigned counsel hereby certifies that on this date, a copy of the foregoing:

AMENDED COMPLAINT was electronically filed with the Clerk of Court for the EDNC using

the CM/ECF system, which should send notification of such filing to the counsel for the parties

listed below, who are believed to be CM/ECF participants.

This the 10th day of October, 2014. BAILEY & DIXON, LLP By: /s/ J. Heydt Philbeck 434 Fayetteville Street, Suite 2500 Raleigh, North Carolina 27601 Telephone: (919) 828-0731 Email: [email protected] Attorneys for Plaintiff SERVED ON: Kimberly D. Potter, Esq. Stephanie A. Brennan, Esq. Special Deputy Attorney Generals N.C. Department of Justice Posti Office Box 629 Raleigh, NC 27602-0629 [email protected] [email protected]


amended complaint.pdf

Documents

state of north carolina

defendant uncch

chancellor of unc

state institution

corporate institution

uncch roberta ann owen

defendant carol lynn

defendant james warren