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noting that plaintiff's equal protection claim could be defeated by any rational explanation for defendant's conduct, but holding that because the complaint does not suggest a rational basis for the conduct, "the facts alleged by Plaintiff suffice, if barely, to state a claim under the Equal Protection Clause"
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1:03cv10-T
August 22, 2003
MEMORANDUM AND RECOMMENDATION
THIS MATTER is before the Court on Defendants' motion to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(1) on the basis that this Court lacks subject matter jurisdiction. Having considered the pleadings, the parties' brief, and the applicable law, the undersigned recommends that Defendants' motion to dismiss be granted in part and denied in part.
FACTUAL AND PROCEDURAL BACKGROUND
This action arises out of the employment of Ricky E. Yates with the North Carolina Department of Correction from 1986 until the time of his death on May 20, 2001. (Compl. ¶ 4). In the Complaint, filed in the Superior Court of Buncombe County, North Carolina on or about December 10, 2002, Plaintiff alleged that Mr. Yates was diagnosed with multiple sclerosis in 1992, when he was employed as an intensive officer, level II, with the NCDOC. (Compl. ¶¶ 17-18). Plaintiff alleged further that in 1993, Mr. Yates was promoted to the position of Chief Probation/Parole Officer ("CPPO") III and that in 1994, he requested an accommodation for certain non-essential job duties that he had difficulty performing, including the use of firearms. (Compl. ¶ 21). According to the Complaint, Defendants failed to respond to this request until September of 1996, when they demoted Mr. Yates from a CPPO III to a CPPO I, resulting in a substantial reduction in pay grade and job responsibilities. (Compl. ¶¶ 28-31). Plaintiff alleged in her Complaint that Mr. Yates was demoted because of his disability. (Compl. ¶ 30). Plaintiff also alleged that beginning in 1999, when Defendant Betty Echerd became Mr. Yates' supervisor, she used her position to create and contribute to a hostile working environment based on Mr. Yates' disability and retaliated against individuals who opposed her harassment of Mr. Yates. (Compl. ¶ 33). Plaintiff alleged that Defendants repeatedly refused Mr. Yates' requests for reasonable accommodation and sought to compel him to leave his employment. (Compl. ¶ 38-39, 41). Plaintiff alleged further that Defendants Theodis Beck, Don Rouse, and Roger Haynie knew or should have known that a person who was not disabled and was not firearms certified was promoted to a CPPO III position after Mr. Yates' demotion. (Compl. ¶ 40).
Plaintiff ultimately alleged in her Complaint that Defendants "acted in concert to deprive Ricky Yates of his civil rights, including but not limited to demoting him because of his disability; denying him a reasonable accommodation; and subjecting him to a hostile working environment so severe and pervasive as to effect [sic] the terms and conditions of employment." (Compl. ¶ 51). Plaintiff then asserted her first cause of action, "pursuant to 42 U.S.C. § 1983 to enforce the equal protection clause of the Fourteenth Amendment to the United States Constitution." (Compl. ¶ 54). In addition to her § 1983 claim, Plaintiff alleged a second cause of action "brought pursuant to Article I[, Section] 19 of the North Carolina Constitution." (Compl. ¶ 64). Under this cause of action, Plaintiff alleged that Defendants treated Mr. Yates differently than they treated similarly situated and/or less qualified employees who were not disabled, denied Mr. Yates reasonable accommodation, and subjected him to a hostile work environment because of his disability. (Compl. ¶ 65).
Defendants removed the action to this Court on January 8, 2003 and subsequently moved to dismiss Plaintiffs Complaint, asserting that this Court lacks subject matter jurisdiction over the action, in part, because Plaintiff has failed to exhaust her administrative remedies and because Plaintiff failed to file this cause of action within ninety days of receiving her notice of right to sue from the Equal Employment Opportunity Commission ("EEOC"). As support for their arguments, Defendants attached to their motion the Recommended Decision of an administrative law judge ("ALJ") in the North Carolina Office of Administrative Hearings, in which the ALJ recommended that Mr. Yates be posthumously reinstated to his position as a CPPO III from the date of his demotion until May 20, 2001 and awarded payment of all lost wages as a result of his demotion, and reasonable attorneys' fees and costs. (Exh. A attached to Def. Mem. Supp. Mot. to Dismiss). Defendants also attached the State Personnel Commission decision reversing the ALJ's recommended decision and Plaintiffs request for judicial review, filed in the Superior Court of Catawba County, North Carolina. (Exh. B, C attached to Def. Mem. Supp. Mot. to Dismiss). Finally, Defendants attached the EEOC charge, filed by Mr. Yates on or about March 8, 2000, in which he alleges that he was discriminated against on the basis of his disability in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. and the notice of right to sue, issued on December 8, 2000. (Exh. D, E attached to Def. Mem. Supp. Mot. to Dismiss).
MOTION TO DISMISS STANDARDS
Where, as here, a defendant seeks to dismiss a complaint for lack of subject matter jurisdiction under Rule 12(b)(1), the burden is on the plaintiff, the party asserting jurisdiction, to prove that the court has subject matter jurisdiction. See Jones v. American Postal Workers Union, 192 F.3d 417, 422 (4th Cir. 1999). A motion to dismiss under Rule 12(b)(1) should be granted "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Richmond, Fredericksburg Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). When evaluating its jurisdiction, a court is to regard the pleadings as evidence on the issue but may also consider evidence outside the pleadings without converting the motion to one for summary judgment. See Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999).
With respect to a motion to dismiss under Rule 12(b)(6), a complaint should not be dismissed for failure to state a claim upon which relief can be granted unless "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King Spaulding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232 (1984); see also Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957). In evaluating a motion to dismiss, "a court must accept the factual allegations of the complaint as true." GE Investment Private Placement Partners II v. Parker, 247 F.3d 543, 548 (4th Cir. 2001). Notwithstanding this exacting standard, dismissals should be granted when warranted. As recognized by the Supreme Court in Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827 (1989), the Rule 12(b)(6) procedure for early dismissal "streamlines litigation by dispensing with needless discovery and fact finding." Id., 490 U.S. at 326-27, 109 S.Ct. at 1832. Accordingly, "[n]othing in Rule 12(b)(6) confines its sweep to claims of law which are obviously insupportable." Id., 490 U.S. at 327, 109 S.Ct. at 1832.
DISCUSSION
I. Exhaustion of State Administrative Remedies
Defendants first assert that this Court lacks subject matter jurisdiction over this action because Plaintiff failed to exhaust her administrative remedies. Defendants note that Mr. Yates sought relief, pursuant to North Carolina General Statutes § 126-36, through a proceeding with the North Carolina Office of Administrative Hearings in which Mr. Yates alleged that he was discriminated against on the basis of his disability and that the review of his case continued in North Carolina state courts. Defendants' argument ignores, however, clear federal authority establishing that, as a general rule, "a plaintiff bringing a suit pursuant to 42 U.S.C. § 1983 does not have to exhaust state administrative remedies before filing suit in federal court." Talbot v. Lucy Corr Nursing Home, 118 F.3d 215 (4th Cir. 1997) (citing Patsy v. Board of Regents, 457 U.S. 496, 512, 102 S.Ct. 2557, 2565-66 (1982) and collecting cases). There are two exceptions to this general rule, which require the exhaustion of state administrative remedies where: (1) Congress explicitly provides that state administrative remedies must be exhausted before suit may be brought under a particular federal law pursuant to § 1983; or (2) Congress implicitly requires the exhaustion of state administrative remedies where such requirement may be fairly understood from congressional action. See Talbot, 118 F.3d at 219. Since Plaintiff has made clear that her § 1983 claim is premised on violations of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and nothing in the Equal Protection Clause requires, either explicitly or implicitly, the exhaustion of state administrative remedies, neither of these exceptions applies and Plaintiffs claims are not barred by her alleged failure to exhaust her state administrative remedies. The undersigned will recommend, therefore, that Defendants' motion to dismiss on the basis that Plaintiff failed to exhaust her state administrative remedies be denied.
In arguing that this Court lacks subject matter jurisdiction because Plaintiff failed to exhaust her administrative remedies, Defendants assert that this Court lacks jurisdiction under North Carolina Rule of Civil Procedure 12(b)(1) and rely exclusively on decisions rendered by North Carolina state courts. Whether a plaintiff must exhaust administrative remedies prior to asserting her federal substantive claims pursuant to § 1983, however, is a question of federal law, not state law, and at all times, the Federal Rules of Civil Procedure govern issues of procedure in this Court. See Fed.R.Civ.P. 1.
II. Section 1983 and the ADA
Defendants next argue that this Court lacks subject matter jurisdiction over this action because Plaintiff failed to file this action within ninety (90) days of her decedent's receipt of his notice of right to sue from the EEOC, because § 1983 does not provide a remedy for violations of the ADA, and because individuals cannot be sued under the ADA. While Defendants assert that these are issues of subject matter jurisdiction, they are more properly grounds for dismissal for failure to state a claim upon which relief can be granted under Rule 12(b)(6). See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398, 102 S.Ct. 1127, 1135 (1982) (compliance with Title VII filing period is not a jurisdictional prerequisite to filing suit but is subject to waiver and tolling when equity requires). The undersigned will, therefore, evaluate these arguments under the standards applicable to a Rule 12(b)(6) motion.
The undersigned notes initially that each of these arguments is based on the premise that Plaintiff has either asserted an ADA claim in this action or sought to vindicate Plaintiffs decedent's rights under the ADA through § 1983. Plaintiff, however, asserts in her brief that she has not alleged an ADA claim, either on its own or through § 1983, but rather, has alleged a violation of her decedent's constitutional right to equal protection. Plaintiff argues, therefore, that the prerequisites to filing an ADA claim and limitations as to whom she is able to hold liable under the ADA are not applicable in this case.
The issue presented by these arguments, then, is whether a plaintiff who alleges conduct that would ordinarily be actionable under the ADA may pursue a claim of disability discrimination under the Equal Protection Clause pursuant to § 1983, thereby avoiding the procedural and substantive limitations of the ADA, or, alternatively, whether such a plaintiff is preempted by the ADA from asserting her constitutional claim under § 1983. Beginning with the pertinent statutory language, § 1983 provides that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage . . . subjects . . . any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. . . ." 42 U.S.C. § 1983. It is well established that § 1983 "does not in itself create any substantive rights"; rather, "it provides a statutory basis to receive a remedy" for violations of federal law by a person acting under color of state law. Zombro v. Baltimore City Police Dep't., 868 F.2d 1364, 1366 (4th Cir. 1989). The Supreme Court has recognized two exceptions to the general rule that federal statutory violations are generally cognizable through § 1983: (1) where Congress has foreclosed private enforcement of the statute in the enactment itself; and (2) where the statute does not create enforceable "rights" under § 1983. See Wright v. Roanoke Redevelopment Housing Auth., 479 U.S. 418, 423, 107 So. Ct. 766, 770 (1987); Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 19, 101 S.Ct. 2615, 2626 (1981). According to the Court, "[w]hen the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983." Id., 453 U.S. at 20, 101 S.Ct. at 2626. The purpose behind this exception is to prevent claimants from bypassing the requirements of a particular statute's enforcement scheme by bringing suit directly under § 1983, at least where that enforcement scheme is "comprehensive." See id.
Although the ADA certainly has a comprehensive enforcement scheme, for two reasons, the undersigned recommends holding that Plaintiffs constitutional equal protection claim is not foreclosed by the ADA. First, Plaintiff does not seek to assert a claim based on the ADA through § 1983, but rather, limits her claim to a constitutional equal protection claim. The exceptions to the general rule permitting the vindication of federal constitutional and statutory claims recognized in Wright and National Sea Clammers appear to apply only to federal statutory violations sought to be vindicated through § 1983, not constitutional violations. See, e.g., Wright, 479 U.S. at 423, 107 S.Ct. at 770 (recognizing two exceptions to the application of § 1983 to remedy "statutory violations"); National Sea Clammers, 453 U.S. at 20, 101 S.Ct. at 2626 (explaining the exception to the general rule "when 'a state official is alleged to have violated a federal statute which provides its own comprehensive enforcement scheme'" (quoting Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 673 n. 2, 99 S.Ct. 1905, 1945 n. 2 (Stewart, J., dissenting))); see also Baumgardner v. County of Cook, 108 F. Supp.2d 1041, 1043 (N.D. Ill. 2000) (recognizing distinction between applicability of exceptions to statutory and constitutional claims and concluding that exceptions articulated in Wright and National Sea Clammers do not apply to allegations of constitutional violations through § 1983).
That the exceptions would not apply to claims alleging constitutional violations pursuant to § 1983 would seem particularly appropriate where, as here, proving a constitutional violation will require applying an entirely different substantive analysis than proving a violation of the ADA. In order to prove that Defendants discriminated against Mr. Yates under the ADA by improperly demoting him, for example, Plaintiff would have to show that Mr. Yates was in a class of persons protected by the ADA, suffered an adverse employment action, was performing the job at a level that met his employer's reasonable expectations, and that the adverse employment action occurred under circumstances that raise a reasonable inference of unlawful discrimination. See Haulbrook v. Michelin North Am., 252 F.3d 696, 702 (4th Cir. 2001). Ultimately, Plaintiff would have to show that Mr. Yates was demoted "because of" his disability. See 2 U.S.C. § 12112(a). Under the Equal Protection Clause, however, "state action distinguishing between the disabled and non-disabled is constitutional so long as 'there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.'" Wessel v. Glendening, 306 F.3d 203, 210 (4th Cir. 2002) (quoting Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 2642 (1993)). In order to establish a violation of the Equal Protection Clause based on disability discrimination, then, Plaintiff will have to show that there was no rational basis for the state action distinguishing between him and other individuals because of his disability. See Wessel, 306 F.3d at 210; see also Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 367, 121 S.Ct. 955, 964 (2001) ("States are not required by the Fourteenth Amendment to make special accommodations for the disabled, so long as their actions toward such individuals are rational"). Given the different substantive standards under the ADA and the Equal Protection Clause, it makes sense that even if the comprehensive enforcement scheme of the ADA precludes utilizing § 1983 to assert an ADA violation, a claimant would still be able to assert a violation of the Equal Protection Clause based on alleged disability discrimination through § 1983.
The second, and perhaps more persuasive, reason the undersigned recommends holding that Plaintiff may pursue her § 1983 claim in this case is that Fourth Circuit precedent suggests that, at least in this circuit, a claimant is not precluded from asserting a violation of the ADA through § 1983. While the Fourth Circuit has held, applying National Sea Clammers, that a plaintiff may not assert a violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq., through § 1983, see Zombro, 868 F.2d at 1369, it has recently made clear that a public employee plaintiff may assert an employment discrimination claim under § 1983, even where the plaintiff could have, but did not, assert a claim based on the same conduct under Title VII, 42 U.S.C. § 2000e-l, et seq., see Booth v. Maryland, 327 F.3d 377, 382-83 (4th Cir. 2003). While the Fourth Circuit has not decided this issue in the context of the ADA, it has recognized that "the ADA echoes and expressly refers to Title VII," that "the two statutes have the same purpose," and, therefore, that "courts have routinely used Title VII precedent in ADA cases." Fox v. General Motors Corp., 247 F.3d 169, 176 (4th Cir. 2001). Additionally, as noted by the district court in Baumgardner, the ADA articulates a broad purpose and its legislative history evidences an intent to parallel Title VII and to supplement, not preempt, other federal and state laws protecting disabled individuals from discrimination. See Baumgardner, 108 F. Supp.2d at 1044-46. In light of the Fourth Circuit precedent establishing that Title VII does not preempt a plaintiffs ability to assert an employment discrimination claim on the basis of sex, race, national origin, or religion under § 1983 and in light of the parallels between Title VII and the ADA warranting the application of Title VII precedent to ADA claims, the undersigned concludes that notwithstanding the enforcement mechanism established in the ADA to prevent discrimination against persons with disabilities, a plaintiff is not precluded by the ADA from asserting a claim for disability discrimination under the Equal Protection Clause of the Fourteenth Amendment pursuant to § 1983. See Pathways Psychosocial v. Town of Leonardtown, 223 F. Supp.2d 699, 708 (D. Md. 2002) (holding plaintiffs equal protection claims asserting disability discrimination under § 1983 not to be preempted by the ADA "even though based on the same facts and circumstances as the ADA claims").
Having concluded that Plaintiff may assert an equal protection claim based on allegations of disability discrimination and is not limited to the enforcement mechanisms established in the ADA, the undersigned will recommend denying Defendants' motion to dismiss on the basis that Plaintiffs equal protection claim is preempted by the ADA. The undersigned will also recommend the denial of Defendants' motion to the extent it relies on Plaintiffs failure to comply with the procedural or substantive requirements of the ADA. Specifically, the undersigned recommends denying Defendants' motion to dismiss on the basis that this action was filed more than ninety days as required by the ADA and because individuals may not be held liable under the ADA.
III. Qualified Immunity
Defendants next argue that they are entitled to qualified immunity, though after articulating the law applicable to the qualified immunity defense, they do not even attempt an application of the law to the facts of this case or explain, in even cursory fashion, why they are entitled to qualified immunity. The undersigned will nevertheless evaluate the merits of this defense.
Defendants also argue that they are entitled to qualified immunity from claims asserted against them in their official capacities. Qualified immunity, however, protects officials from suit in their individual capacities, not official capacities. See, e.g., Debauche v. Irani, 191 F.3d 499, 505 (4th Cir. 1999).
Under the doctrine of qualified immunity, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738 (1982). In evaluating whether a government official is entitled to qualified immunity, a court is required to determine, first, whether the facts alleged show that the official's conduct violated a constitutional right. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156 (2001). If the facts produced or alleged by the plaintiff do not establish the violation of a constitutional right, the inquiry ends. See id. If, however, the facts viewed in the light most favorable to the plaintiff do establish such a violation, the court must determine whether the right was clearly established such that a reasonable official would have known that his conduct would violate that right. See id.; see also Brown v. Gilmore, 278 F.3d 362, 367 (4th Cir. 2002).
In this case, Plaintiff alleges that Defendants violated Mr. Yates' right to equal protection by discriminating against him and harassing him on the basis of his disability. As noted above, in order to succeed in asserting an equal protection claim based on disability discrimination, Plaintiff would have to show that there was no rational basis for the state action distinguishing between Mr. Yates and other similarly situated individuals because of his disability. See Wessel, 306 F.3d at 210. Because persons with disabilities are not considered members of a protected class under the Equal Protection Clause, Plaintiffs claim is, as she acknowledges, essentially a "class of one" equal protection claim. The Supreme Court has recognized "successful equal protection claims brought by a 'class of one,' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 1074 (2000) (per curiam); see also Tri County Paving, Inc. v. Ashe County, 281 F.3d 430, 439 (4th Cir. 2002). As explained by the Court, "the purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents." Olech, 528 U.S. at 564, 120 S.Ct. at 1074-75 (internal quotation marks, brackets, and citation omitted). The Court then affirmed the denial of a Rule 12(b)(6) motion to dismiss where the complaint alleged that the defendant treated the plaintiff differently from other similarly situated persons and that this discrimination was "irrational and wholly arbitrary." Id., 528 U.S. at 565, 120 S.Ct. at 1075. In so holding, the Court made clear that these allegations were sufficient "quite apart from the [defendant's] subjective motivation." Id.
In this case, Plaintiff has alleged that Defendants discriminated against Mr. Yates because of his disability and because he requested reasonable accommodation for his disability. While Plaintiff does not explicitly allege that Defendants' conduct was irrational and arbitrary, as required to prove her claim, she does allege that Defendants treated Mr. Yates differently than other employees who were similarly situated or less qualified than Mr. Yates and that, in doing so, they violated his right to equal protection. The Court notes that Plaintiffs equal protection claim will be defeated by any rational explanation for Defendants' conduct in distinguishing between Mr. Yates and others who were similarly situated to him or in declining his requests for reasonable accommodation. See Garrett, 531 U.S. at 367, 121 S.Ct. at 964 (in proving an equal protection violation under the rational basis test, "the burden is upon the challenging party to negative any reasonably conceivable state of facts that could provide a rational basis for the classification"). However, the face of the Complaint does not suggest a rational basis, and as all reasonable inferences from the allegations must be drawn in Plaintiffs favor, the undersigned is unable to say that no equal protection "relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon, 467 U.S. at 73, 104 S.Ct. at 2232. Accordingly, the undersigned recommends holding that the facts alleged by Plaintiff suffice, if barely, to state a claim under the Equal Protection Clause for irrational and arbitrary discrimination between Mr. Yates and other public employees.
The next issue, then, is whether the right allegedly violated by Defendants was clearly established such that a reasonable official would have known that his conduct would violate that right. See id.; see also Brown, 278 F.3d at 367. The contours of an individual's right not to be discriminated against by public officials on the basis of physical disability without at least some rational explanation, even if the reason proffered did not actually motivate the officials at the time, was clearly established at the time of the events forming the basis for Plaintiffs Complaint. See Olech, 528 U.S. at 564, 120 S.Ct. at 1074 (recognizing that contours of equal protection right not to be treated differently from similarly situated persons where there is no rational basis for difference in treatment had previously been established and citing earlier cases); City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 446, 105 S.Ct. 3249, 3258 (1985) (distinctions based on mental retardation need only be rationally related to legitimate government interest to withstand equal protection challenge); Brown v. North Carolina Div. of Motor Vehicles, 166 F.3d 698, 706 (4th Cir. 1999) (applying rational basis standard articulated in Cleburne to distinctions based on physical disabilities). Since no rational basis appears on the face of the Complaint, the undersigned recommends denying Defendants' motion to dismiss based on qualified immunity.
IV. Corum Claim
Finally, Defendants move to dismiss Plaintiffs state constitutional claim against them on the basis that another remedy was available for Plaintiffs injuries and, in their individual capacities, on the basis that a claim for monetary relief under the North Carolina Constitution may be brought against a person only in his official capacity. Plaintiff asserts this claim under Article I, Section 19 of the North Carolina Constitution, which provides, in pertinent part, that no person "shall be denied the equal protection of the laws." N.C. Const, art. I, § 19.
In Corum v. University of N.C., 330 N.C. 761, 413 S.E.2d 276 (1992), the Supreme Court of North Carolina recognized a direct action under the North Carolina Constitution against state officials for violation of rights guaranteed by its Declaration of Rights set forth in Article I. See id., 330 N.C. at 782, 413 S.E.2d at 290. This right is limited, however, in that a plaintiff may not seek, pursuant to a Corum claim, monetary relief against a person in his individual capacity, and a Corum claim is not cognizable at all where there is an adequate state remedy. See Swain v. Elfland, 145 N.C. App. 383, 391, 550 S.E.2d 530, 536 (2001). Pertinent to Plaintiffs allegations in this case, North Carolina law provides a mechanism for public employees to contest the legality of employment decisions and to complain of harassment or retaliation on the basis of a disability. See N.C. Gen. Stat. §§ 126-34 through 126-38. Accordingly, there is an adequate state remedy, and Defendants' motion to dismiss Plaintiffs cause of action based on violations of the North Carolina Constitution should be granted. Alternatively, because a Corum claim for monetary relief may not be asserted against persons in their individual capacities, Defendants' motion should be granted as to Plaintiffs second cause of action asserted against Defendants in their individual capacities.
RECOMMENDATION
For the foregoing reasons, the undersigned respectfully RECOMMENDS that Defendants' motion to dismiss Plaintiffs first cause of action, asserted pursuant to 42 U.S.C. § 1983, be DENIED. The undersigned FURTHER RECOMMENDS that Defendants' motion to dismiss Plaintiffs second cause of action, asserted pursuant to Article I, Section 19 of the North Carolina Constitution, be GRANTED.
The parties are hereby advised that, pursuant to 28, United States Code, Section 636(b)(1)(C), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within ten (10) days of service of same. Failure to file objections to this Memorandum and Recommendation with the district court will preclude the parties from raising such objections on appeal. Thomas v. Am, 474 U.S. 140, 152, 106 S.Ct. 466, 473 (1985); United States v. Schronce, 727 F.2d 91, 93-94 (4th Cir. 1984).