NC Appeals Court deals blow to fired UNC professor claiming ‘whistleblower’ status | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    The N.C. Court of Appeals has dismissed the case of a former UNC Chapel Hill professor who has been challenging his dismissal since 2018. Professor Richard Semelka's latest legal action alleged that university officials violated the state Whistleblowers Act.

    "[P]laintiff cannot establish a prime facie case of whistleblower retaliation as his discharge was the result of legitimate, non-retaliatory reasons related to his misrepresentations in seeking reimbursement for $30,000 in personal legal fees," wrote Judge John Arrowood for the unanimous appellate panel. "Accordingly, plaintiff's arguments to the contrary are overruled."

    Semelka was a tenured professor in the UNC medical school's radiology department in January 2016, when he sent a letter to the chancellor "expressing various health and safety concerns." The letter singled out his department chairman for criticism, according to Arrowood's opinion. Semelka's letter argued that the chairman retaliated against Semelka by not appointing him to lead a division within the department.

    University officials responded to the letter but took no further action. Semelka hired a law firm in February 2016 to help him present his concerns to the university's Board of Trustees.

    Problems arose when Semelka submitted an expense report in July 2016 for $30,000 in legal fees. University officials did not accept the professor's explanations about the reasons for the requested reimbursement. The university's chief audit officer eventually looked into Semelka's travel and business expenses from July 2010 through September 2016.


    "The audit revealed that on multiple occasions dating from 2010, plaintiff received reimbursements for nine trips which were 'primarily personal in nature and were not reimbursable as business travel,'" according to Arrowood's opinion. "It appeared that plaintiff had developed a pattern of planning personal vacations, and shortly before the trip was scheduled to begin, plaintiff would attempt to schedule work meetings with colleagues abroad to justify multiple days of travel reimbursement requests."

    As for the legal fees, the audit found that Semelka "misrepresented the nature of his reimbursement request in an improper attempt to have the university pay for personal legal expenses."

    The university started the process of firing Semelka in January 2017. The university system's Board of Governors confirmed that decision in September 2018.

    State courts have upheld the decision, though Semelka was able to win back pay for the time between the discontinuation of his salary in August 2017 and the BOG's decision to uphold his dismissal a year later.

    In its latest decision, the Appeals Court determined that Semelka's whistleblower claims already had been addressed in earlier legal action. That included an earlier appearance before the Appeals Court dubbed "Semelka I."

    "Defendants argue the trial court erred in denying their motion to dismiss as plaintiff is precluded from establishing the elements of his whistleblower claims because Semelka I determined that his discharge was (1) 'proper' and (2) 'not retaliatory[.]' We agree," Arrowood wrote.

    "We disagree with plaintiff's interpretation of the facts underlying his termination," Arrowood added. "Despite plaintiff's assertion that the internal investigation was used as a pretext for retaliation, the facts indicate that the audit was conducted due to the 'unusual' nature of plaintiff's request for reimbursement of legal fees and the ambiguity of his stated reasons for the reimbursement."


    "[T]he Faculty Hearings Committee concluded that despite plaintiff's ambiguity in his stated reasons for the reimbursement, 'the specificity of his emails ... dated January 1 and 6, 2016, make clear that [plaintiff] originally consulted with outside counsel because he was considering legal action against the University,'" Arrowood wrote. "Thus, the Committee ultimately concluded that plaintiff's deliberate obscurity of the need for outside legal consultation was 'disingenuous and dishonest' and 'constitute[d] misconduct of such a nature as to adversely reflect on [plaintiff]'s honesty, trustworthiness, and fitness to be a faculty member.'"

    Judges Toby Hampson and Jefferson Griffin joined Arrowood's opinion.