Former NSU counseling center director can sue over termination, S.D. Supreme Court decides

Capitol News Bureau

PIERRE, S.D. (KELO) — A former employee of Northern State University who lost her job one day after complaining that unlicensed students were engaging in counseling and had access to patients’ records can proceed with her lawsuit for retaliatory discharge against one of the defendants, the South Dakota Supreme Court has ruled.

In a decision publicly released Thursday, the state’s high court said a circuit judge was partially right and partially wrong when he dismissed the entire case brought by Sara Hallberg.

Starting in September 2017, Hallberg was director of the student counseling center at the university in Aberdeen. She noticed shortly after starting there that unlicensed student employees were counseling patients and signing therapy notes, allegedly in violation of ethical standards of the American Counseling Association.

Hallberg communicated her concerns to her supervisors, including the university’s associate vice president of student affairs, Francesca Leinwall, and the university’s vice president of enrollment management and student affairs, Jeremy Reed.

They informed Hallberg that student employees weren’t required to be licensed to perform their employment duties.

The justices in their decision Thursday ruled unanimously that Circuit Judge Scott Myren correctly dismissed Hallberg’s lawsuit against the state Board of Regents and Reed.

But the justices said the judge erred in dismissing the case against Leinwall. The judge had said sovereign immunity protected the regents as well as Leinwall and Reed.

Justice Janine Kern, who wrote the Supreme Court’s decision, agreed that sovereign immunity applied to the regents, who oversee the state’s public universities and special schools.

Kern disagreed with the circuit judge on Leinwall, however, and wrote that the Leinwall portion of the lawsuit should continue: “On remand, we note that questions concerning whether Leinwall exceeded the scope of her authority by committing an illegal act or the intentional tort of retaliatory discharge implicate mixed questions of law and fact.”

Hallberg’s allegations against Reed raised a different issue that the judge correctly decided, Justice Kern wrote.

“To establish her claim of retaliatory discharge against Reed, Hallberg asserts that he served as Leinwall’s direct supervisor. Aside from this, however, Hallberg has not pled specific allegations regarding how Reed retaliated against her,” Kern wrote. “For instance, the complaint does not allege that Reed ordered Leinwall to send the letter terminating Hallberg. Nor does it allege that Reed had personal knowledge of her attempts to report the allegedly unethical or unlawful conduct.”

According to the justices’ decision, Hallberg contacted other South Dakota state universities, who reportedly told Hallberg they didn’t permit counselors to practice without licenses.

Hallberg also contacted the state licensing board, who told her counseling without a state license violated state law.

Hallberg also discovered that staff members including student employees had access to the center’s system for storing patient records and counseling notes, and that student employees were the primary point of contact for students calling the center to schedule counseling appointments.

At a full staff meeting in December 2017, Hallberg explained her concerns about the center’s possible violations of the national association’s ethical standards and various related matters.

The next day, Hallberg received a termination letter from Leinwall for disrupting the “efficiency or morale of the Department” in violation of the regents’ standards.

The full decision is at https://ujs.sd.gov/uploads/sc/opinions/28683mrxgnms.pdf

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