Opinion
No. 4:98cv270-T.
July 22, 1999.
MEMORANDUM AND RECOMMENDATION
THIS MATTER is before the court upon defendant's Motion to Dismiss, plaintiff's Response and Opposition to Defendant's Partial Motion to Dismiss, and plaintiff's Motion to Stay Proceedings Pending Outcome of EEOC Reconsideration of Retaliatory Charge. Having carefully considered those motions, the undersigned enters the following findings, conclusions, and recommendation.
FINDINGS AND CONCLUSIONS
I. Background
In this action brought under the Americans with Disabilities Act ("ADA") and the common law of North Carolina, plaintiff contends that he was unlawfully terminated from his employment with Autumn Corporation ("Autumn"). He alleges that Autumn violated the ADA and the common law by:
(1) creating a hostile work environment based on his alleged disability of being HIV positive;
(2) discharging him in retaliation for filing a charge of discrimination with the Equal Employment Opportunity Commission based on the alleged hostile work environment; and
(3) discharging him based on his alleged disability of being HIV positive.
Defendant seeks dismissal of the first and third counts in their entirety and the common-law component of the second count.
Plaintiff is proceeding pro Se, and on May 14, 1999, this court entered an Order advising him of the nature of defendant's motion and his requirements in responding to that motion. He was allowed 30 days within which to do so. Plaintiff did file his response and opposition after filing a number of pleadings not related to the substance of the dispositive motion, including a Motion to Stay Proceedings Pending Outcome of EEOC Reconsideration. Apparently without providing notice to defendant, plaintiff secured from the EEOC a "Notice of Intent to Reconsider" and has attached such notice to his pleading. The relevant regulations provide that "[i]n cases where the Commission decides to reconsider a dismissal or a determination finding reasonable cause to believe a charge is true, a notice of intent to reconsider will promptly issue." 29 C.F.R. § 1601.21 (b) and (d). The regulations further provide, in pertinent part, as follows:
[If] the charging party has filed suit . . . the notice of intent to reconsider shall vacate the letter of determination, but shall not revoke the charging party's right to sue in 90 days.29 C.F.R. § 1601.19 (b). The undersigned can find no provision which divests this court of jurisdiction to hear a case that apparently was timely filed before the Notice of Reconsideration was issued or which implies that judicial action should be stayed in favor of administrative reconsideration. Plaintiff's request for stay, therefore, will be denied.
II. Standard
Defendant has moved for dismissal pursuant to Rule 12(b), Federal Rules of Civil Procedure, contending that plaintiff has failed to state cognizable claims and that there is a lack of jurisdiction. Rule 12(b) authorizes dismissal based on a dispositive issue of law. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 1832 (1989); Hishon v. King Spalding, 467 U.S. 69, 73 (1984); Conley v. Gibson, 355 U.S. 41 (1957). As the Court discussed in Neitzke:
This procedure [for dismissal], operating on the assumption that the factual allegations in the complaint are true, streamlines litigation by dispensing with needless discovery and fact finding. Nothing in Rule 12(b)(6) confines its sweep to claims of law which are obviously insupportable. On the contrary, if as a matter of law "it is clear that no relief could be granted under any set of facts . . . a claim must be dismissed, without regard to whether it is based on outlandish legal theory. . . . What Rule 12(b)(6) does not countenance are dismissals based on a judge's disbelief of a complaint's factual allegations."Id., at 1832 (citation omitted). For the limited purpose of making a recommendation as to disposition of defendant's motion, the undersigned has accepted as true the facts alleged by plaintiff in the complaint and viewed them in a light most favorable to him. Inasmuch as plaintiff failed to attach his EEOC charges of discrimination to his complaint, the court has considered those exhibits as attached to defendant's supporting motion.
Plaintiff lives in Polk County; defendant provides health-care services to the elderly and the infirm. In April 1994, plaintiff began his employment with defendant as a registered nurse. On May 30, 1997, he filed with the EEOC a charge of discrimination, in which he claimed "that he was being subjected to a hostile working environment" because of his disability — HIV. After filing that charge, plaintiff alleges, he was "written up," subjected to more hostile treatment by his employer, and ultimately terminated for allegedly failing to obtain authorization from a supervisor for overtime work — a charge plaintiff contends was a pretext.
On September 10, 1997, defendant terminated plaintiff from employment, and on November 10, 1997, the EEOC, plaintiff, and defendant executed a negotiated settlement agreement concerning the first charge of hostile work environment. The terms of that agreement provided that defendant pay plaintiff $1,260.00 and give references to prospective employers with only plaintiff's dates of employment and salary history. The agreement stated that it was not an admission of any violation of the ADA, it could be specifically enforced in court, and it could be used as evidence in a later proceeding for breach of the agreement.
In December 1997, plaintiff filed with the EEOC a second charge of discrimination against defendant. In that charge, he alleged that on September 10, 1997, defendant retaliated against him by terminating him for filing the first EEOC charge. After investigating the second charge, the EEOC issued a right-to-sue letter dated September 29, 1998. Plaintiff filed his suit within the 90-day period and served defendant on March 9, 1999 — within the 120-day period allowed for service by Rule 4, Federal Rules of Civil Procedure.
III. Discussion
A. First Cause of Action: Federal Hostile Work Environment Claim
Without doubt, the whole point of the administrative component of Title VII is to encourage remediation of employment disputes without resort to the federal courts. To encourage the process, Congress provided a well-defined scheme of burdens both on employees and employers to file and answer administrative charges before a neutral administrative body. To that end, the EEOC is empowered to conduct investigations of charges and, where it determines such action is appropriate, seek to reconcile the parties through mediation. As noted by the Court of Appeals for the Fourth Circuit,
[the statutory scheme has] provided that persons aggrieved by unlawful employment practices should first attempt to have the EEOC settle the matter in an atmosphere of secrecy without resorting to the extreme measure of bringing a civil action in the congested federal courts.Mickel v. South Carolina State Employment Serv., 377 F.2d 239, 241 (4th Cir.), cert. denied, 389 U.S. 877 (1967).
Plaintiff admits in paragraph eight of his complaint that he alleged in his first charge of discrimination against defendant that it had subjected him to a hostile work environment based upon his alleged disability and that he then settled the claim on November 10, 1997. In his response and opposition to defendant's motion, plaintiff argues that he "is in poor health . . . and not pretending to know the finer details of law required to protect oneself from these very fancy tactics." Response, at 3. North Carolina law, however, is clear as to the validity of a release:
There are a class of cases where releases of this character have been set aside and the plaintiff permitted to recover notwithstanding them. But those decisions are all based upon the ground of fraud, undue advantage, misrepresentation, in some instances combined with weakness of mind and body. As said in Bean's Case by Merrimon, C. J.: "The court of equity will grant relief where only the party complaining makes mistake, when the facts and circumstances give rise to the presumption that there has been undue influence, imposition, mental imbecility, surprise, or confidence abused. Mere ignorance, mere inadequacy of consideration, mere weakness of mind, mere mistake on the part of one party, will not entitle that party to relief; but it is otherwise when there is a combination of such things to prejudice the party."West v. Seaboard Airline Ry., 65 S.E. 979, 980 (N.C. 1909) (citations omitted). Plaintiff's arguments concerning a "slanted playing field" and not having a lawyer avoid a simple answer to the straightforward question this court posed in its May 14, 1999, Order, i.e., whether "the first federal cause of action is barred by by the doctrine of accord and satisfaction." Without doubt, it is, and the undersigned will recommend that the federal component of the first cause of action be dismissed with prejudice.
B. First Cause of Action: Supplemental State Hostile Work Environment Claim
In paragraphs 13 and 14 of the Complaint, plaintiff contends that the alleged hostile work environment based on his HIV positive status also violates the common law of North Carolina. Defendant has moved for dismissal based upon both Rule 12(b)(1) (lack of jurisdiction) and Rule 12(b)(6) (failure to state a claim under North Carolina law).
Defendant's argument under Rule 12(b)(6) that a claim of hostile work environment is not recognized under the North Carolina common law is well taken, but runs contrary to a recent, unpublished decision of Honorable Lacy H. Thornburg, United States District Judge, in EEOC v. Tar Heel Capital, Inc., 1:98cv84 (W.D.N.C. December 3, 1998). In that case, the undersigned recommended that similar state-law claims in a sexual discrimination case be dismissed for the very reasons defendant asserts in this matter, i.e., that such claims are not recognized by state law. In relevant part, Judge Thornburg determined, as follows:
The North Carolina Supreme Court rules that the "ultimate purpose of . . . G.S. 143-422.2 and Title VII ( 42 U.S.C. § 2000e, et seq.) is the same," and thus the statute is co-extensive with the federal statute, evaluated under the same standards of evidence and principles of law. This interpretation of the overlap of the state and federal statutes is the rule of the Fourth Circuit as well.Id., at 5 (copy of opinion available online). Although plaintiff's claim is one under the ADA, as opposed to a Title VII claim for sexual discrimination or harassment, the undersigned believes that the logic ofTar Heel Capital would be extended to this particular case, and that while it has not yet been presented with the issue, the Court of Appeals for the Fourth Circuit would likely recognize a hostile-work environment claim under the ADA. See Burns v. AAF-McQuay, Inc., 166 F.3d 292, 294 (4th Cir. 1999) (reserving issue of hostile-work-environment claim under the ADA). The undersigned, therefore, will recommend that defendant's motion under Rule 12(b)(6) to dismiss the state-law component of plaintiff's first cause of action be denied.
Defendant has also requested dismissal based upon Rule 12(b)(1) and states in a paragraph heading that the basis for such motion is the statute of limitations. Unfortunately, defendant fails to elaborate on its Rule 12(b)(1) motion in the text of its memorandum of law. Contained in defendant's argument as to the third cause of action, however, is a relevant argument as to statute of limitations.
At the latest, plaintiff knew of the alleged hostile work environment claim on May 30, 1997, when he filed his charge of discrimination with the EEOC. He filed this action on December 25, 1998. While plaintiff's claim has all the earmarks of a typical common-law tort to which a three-year limitations period is applied, the North Carolina Supreme Court has made it unequivocal that actions for employer torts based on HIV-positive status are controlled by the Communicable Disease Act, Chapter 130A-148(h)(j) (1989), which mandates that an action be brought within 180 days of the date the aggrieved party became aware of the alleged discrimination. Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 207 (1990). Plaintiff's claim, which was filed more than one and one-half years after he knew of the alleged wrongful acts, is barred by the 180-day statute of limitation contained in Chapter 130A. The undersigned, therefore, will recommend that defendant's motion under Rule 12(b)(1) to dismiss the state-law component of plaintiff's first cause of action be granted and such claim be dismissed with prejudice.
C. Second Cause of Action: Supplemental State Claim for Retaliation Based on Filing of Charge of Discrimination With the EEOC
Defendant has moved pursuant to Rules 12(b)(1) and 12(b)(6) for dismissal of the state component of plaintiff's second cause of action. The Rule 12(b)(6) motion must be denied for the reasons discussed above and in Tar Heel Capital, supra. As to the Rule 12(b)(1) motion, defendant has again omitted any supporting argument, and it does not appear that Chapter 130A would have any relevance to this claim of retaliation for having filed a charge of discrimination, inasmuch as plaintiff's HIV-positive status is not an element of the claim. Based upon the pleadings and arguments now before the undersigned, a recommendation will be entered that defendant's Rule 12(b)(1) motion also be denied. Defendant has not moved to dismiss the federal component of plaintiff's second cause of action
D. Third Cause of Action: Federal and State Claims of Wrongful Discharge Based on His HIV-Positive Status
In his third cause of action, plaintiff contends that he was discharged from his employment based on his HIV-positive status. He appears to assert claims under both the ADA and the North Carolina common law for such alleged conduct. The record is clear, however, that plaintiff failed to first present those claims in a charge of discrimination filed with the EEOC. Defendant has moved to dismiss both claims under Rule 12 (b)(1). The allegations contained in a charge of discrimination with the EEOC set the outer limits of this court's jurisdiction under the ADA and any tag-along, state-law claims. Evans v. Technologies Applications Serv. Co., 80 F.3d 954, 962-63 (4th Cir. 1996).
This rule serves the dual purpose of affording the EEOC and the employer an opportunity to settle the dispute through conference, conciliation, and persuasion, and of giving the employe[r] some warning of the conduct about which the employee is aggrieved.Cheek v. Eastern and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir 1994) (citations omitted). Plaintiff's second charge of discrimination clearly was limited to a claim that defendant discharged him in retaliation for his having filed the first charge of a hostile work environment; no mention was made of his being terminated because he was HIV positive. This court lacks jurisdiction to consider claims that were not first raised with the Commissioner, and plaintiff's federal claim under the third cause of action, therefore, should be dismissed.
Defendant has also moved under Rule 12(b)(6) to dismiss the statelaw component of the third cause of action and contended that North Carolina has not recognized such a cause at common law. As discussed above, Tar Heel may require a different result on the issue of recognition at common law; but the logic of Tar Heel, which finds federal and state law concerning employment discrimination to be coextensive, reasonably could be read to require plaintiff to file a claim with the EEOC before bringing the state common-law tort. Such discussion, however, appears to be moot, inasmuch as a claim for discharge based upon HIV-positive status is no longer governed by common law, but is supplanted by Chapter 130A, which requires that a civil action be brought within 180 days. It is not necessary for a decision in this case to determine whether a state court would stay its hand pending the results of the federal administrative process.
To the extent plaintiff attempted to assert a coextensive state common-law claim, it is supplanted by Chapter 130A under Burgess and must be dismissed with prejudice as time barred under Chapter 130A.
The undersigned speculates that the reason the file has purportedly been reopened by the Commissioner is for the purpose of considering whether the second charge of discrimination should be amended to allow just such a claim. Those proceedings may result in a disposition of this issue administratively, the Commissioner may wish to pursue the action civilly on plaintiff's behalf, or a new right-to-sue letter may issue.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that defendant's
(1) Motion to Dismiss the federal claim contained in plaintiff's first cause of action be GRANTED and that claim be dismissed with prejudice as barred by the doctrine of accord and satisfaction;
(2) Motion to Dismiss the state claim contained in plaintiff's first cause of action be GRANTED and that claim be dismissed with prejudice as barred by the applicable 180-day statute of limitations;
(3) Motion to Dismiss the state claim contained in plaintiff's second cause of action be DENIED;
(4) Motion to Dismiss the federal claim contained in plaintiff's third cause of action be GRANTED and such claim be dismissed without prejudice, inasmuch as administrative remedies were not first exhausted;
(5) Motion to Dismiss the state claim contained in plaintiff's third cause of action be GRANTED and such claim be dismissed with prejudice as barred by the applicable 180-day statute of limitations;
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. Arn; 474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111 (1986); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208 (1984).
This Memorandum and Recommendation is entered in response to defendant's Motion to Dismiss (#5).