Gilreath v. Cumberland County Board of Education et al
Filing
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ORDER granting in part and denying in part 10 Motion to Dismiss. Counsel should read order in its entirety for critical information and deadlines. Signed by Senior Judge W. Earl Britt on 4/10/2012. (Marsh, K)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO: 5:11-CV-00627-BR
JOSEPH GILREATH,
Plaintiff,
v.
THE STATE OF NORTH CAROLINA EX
REL. THE CUMBERLAND COUNTY
BOARD OF EDUCATION, THOMAS
HATCH, MICHAEL BAIN,
Defendants.
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ORDER
This matter is before the court on defendants’ motion to dismiss. Plaintiff, who is
represented by counsel, did not file a response to the motion.
Plaintiff is a music/band teacher at Ann Chestnutt Middle School in Cumberland County,
North Carolina. (Compl. ¶ 1.) Defendants Thomas Hatch and Michael Bain are the Principal
and Assistant Principal, respectively, of Ann Chestnut Middle School. (Id. ¶ 17.) Plaintiff
allegedly suffers from one or more impairments which substantially limit one or more major life
activities. (Id. ¶ 5.)
In 2008, plaintiff informed Hatch, in Bain’s presence, “about two of [his] impairments,
for the purpose of requesting a reasonable accommodation in the manner in which Plaintiff could
respond and relate in the classroom.” (Id. ¶ 10.) Plaintiff provided Hatch with medical
verifications of such impairments, which documentation Hatch rejected. (Id. ¶¶ 11-12.) Hatch
never responded to plaintiff’s request for an accommodation, “except to reduce Plaintiff’s
written evaluations and place additional duties upon Plaintiff, purportedly to improve
performance.” (Id. ¶ 13.) Beginning in March 2010, Bain, acting in conjunction with Hatch,
imposed “action plans” upon plaintiff. (Id. ¶ 14.) According to plaintiff, Hatch and Bain’s
conduct created a hostile work environment and was part of an “effort to retaliate against
Plaintiff because of his requests for [reasonable] accommodations, to cause his resignation, and,
failing that, to cause his tenure not to be renewed, resulting in his license to teach to be revoked,
which would cause Plaintiff’s contract not to be renewed.” (Id. ¶ 16.)
On 14 October 2010, plaintiff filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”). (Id. ¶ 21.) On 30 June 2011, the EEOC issued plaintiff a notice of
right-to-sue letter. (Id.) Plaintiff filed the instant action on 30 September 2011 in Cumberland
County Superior Court, alleging that defendants have violated his rights under the Americans
with Disabilities Act (“ADA”), 29 U.S.C. § 12101 et seq. Defendants removed the action to this
court on 3 November 2011.
First, defendants contend that this action should be dismissed for failure to state a claim
pursuant to Federal Rule of Civil Procedure 12(b)(6). This rule allows a defendant to challenge
the sufficiency of the allegations in the complaint. In order to survive a Rule 12(b)(6) motion to
dismiss, a complaint “must contain ‘a short and plain statement of the claim showing that the
pleader is entitled to relief.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Fed. R.
Civ. P. 8(a)(2)). This standard “does not require ‘detailed factual allegations,’ but it demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The complaint must contain “sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id.
(quoting Twombly, 550 U.S. at 570). Although plausibility does not entail probability, the facts
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in the complaint must establish more than the mere possibility that a defendant acted unlawfully.
Id. In considering whether the plaintiff has established a plausible claim for relief, this court is
bound to accept the well-pleaded facts of the complaint as true; however, conclusory assertions
of law or fact are not entitled to the assumption of truth. Id. at 1949-50; see also Nemet
Chevrolet, Ltd. v. Consumeraffairs.com. Inc., 591 F.3d 250, 255 (4th Cir. 2009). In sum,
“[w]hile a plaintiff is not charged with pleading facts sufficient to prove her case, as an
evidentiary matter, in her complaint, a plaintiff is required to allege facts that support a
[plausible] claim for relief.” Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir.
2003) (emphasis in original).
Defendants initially contend that dismissal is warranted because plaintiff has not alleged
the nature of his disability so as to state a claim for discrimination under the ADA. As this court
has recognized previously:
The ADA provides in relevant part:
No covered entity shall discriminate against a
qualified individual with a disability because of the
disability of such individual in regard to job
application procedures, the hiring, advancement, or
discharge of employees, employee compensation,
job training, and other terms, conditions, and
privileges of employment.
42 U.S.C. § 12112(a). Only a “qualified individual with a
disability” may bring a civil action under the ADA. That term is
further defined as “an individual with a disability who, with or
without reasonable accommodation, can perform the essential
functions of the employment position that such individual holds or
desires.” 42 U.S.C. § 12111(8). “Disability” is, in turn, defined
as:
(A) a physical or mental impairment that substantially limits one or
more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
Id. at § 12102(2). See King v. Wilmington Transit Co., 976 F.
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Supp. 356, 358 (E.D.N.C. 1997).
Lamb v. John Umstead Hosp., 19 F. Supp. 2d 498, 511 (E.D.N.C. 1998).1 And, this court has
held that, to state a claim for relief, “Rule 8(a)(2) requires, at a minimum, that a plaintiff
asserting a claim under the ADA identify the nature of her alleged disability.” Id. at 512; see
also Bomar v. Mayor & City Council of Balt., No. RDB-11-0507, 2011 WL 5150278, at *7 (D.
Md. Oct. 27, 2011) (dismissing ADA claim for failure to state a claim upon which relief can be
granted where plaintiff failed to identify his alleged disability), aff’d in part and dismissed in
part, No. 11-2295, 2012 WL 540752 (4th Cir. Feb. 21, 2012); Lewis v. UPS Freight, No.
3:10CV29-HEH, 2010 WL 1640270, at *3 (E.D. Va. Apr. 22, 2010) (same).
In this case, plaintiff alleges that he “is a person who suffers from one or more
impairments within the meaning of the [ADA] which substantially limits one or more major life
activities” and that he “is a ‘qualified individual’ within the meaning of the [ADA].” (Compl. ¶¶
5, 6.) Yet, he provides no factual allegations to support these conclusory legal assertions. The
court concludes that plaintiff has failed to state a claim for discrimination under the ADA.
Although plaintiff has not moved to amend his complaint, the court will allow him to file an
amended complaint to cure this deficiency. See Fed. R. Civ. P. 15(a)(2) (“The court should
freely give leave [to amend] when justice so requires.”); Vess v. Ciba-Geigy Corp. USA, 317
F.3d 1097, 1108 (9th Cir. 2003) (“[L]eave to amend should be granted if it appears at all possible
that the plaintiff can correct the defect.” (alteration in original) (citation and internal quotation
marks omitted)); Lamb, 19 F. Supp. 2d at 512 (allowing the plaintiff “to file an amended
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The statutory sections from which the court quotes have since been modified by the ADA Amendments
Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008). Nonetheless, the amendments do not change the court’s
analysis.
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complaint to provide the level of specificity required by Rule 8(a).”). Because the court is
allowing plaintiff to amend his complaint, defendants’ motion to dismiss will be denied without
prejudice as to the claim for discrimination under the ADA.
Defendants also contend that to the extent plaintiff asserts a claim for retaliation under
the ADA, he has not stated a claim. The ADA's retaliation provision provides, in relevant part,
that “[n]o person shall discriminate against any individual because such individual has opposed
any act or practice made unlawful by this chapter . . . .” 42 U.S.C. § 12203(a). In order to
establish a prima facie case of retaliation, a plaintiff must allege (1) that he has engaged in
conduct protected by the ADA; (2) that he suffered an adverse action subsequent to engaging in
the protected conduct; and (3) that there was a causal link between the protected activity and the
adverse action. Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 216 (4th Cir. 2002).
Defendants argue that plaintiff has not allegedly suffered an adverse action.
“An action is materially adverse if it was harmful enough to have ‘dissuaded a reasonable
worker from making or supporting a charge of discrimination.’” Fink v. Richmond, No. DKC
2007-0714, 2009 WL 3216117, at *10 (D. Md. Sept. 29, 2009) (quoting Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)), aff’d, 405 F. App’x 719 (4th Cir. 2010); see also
Williams v. Brunswick Co. Bd. of Educ., 725 F. Supp. 2d 538, 548-49 (E.D.N.C. 2010)
(applying Burlington Northern’s adverse employment action standard to ADA retaliation claim
and collecting cases), aff’d, 440 F. App’x 169 (4th Cir. 2011). Plaintiff has alleged a number of
actions defendants took after he allegedly requested a reasonable accommodation, including
“reduc[ing] Plaintiff’s written evaluations,” “plac[ing] additional duties upon Plaintiff,”
“impos[ing] ‘action plans’ upon Plaintiff,” “providing negative evaluations,” and “creating a
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hostile work environment.” (Compl. ¶¶ 13, 14, 16.) At this stage of the proceedings, the court
finds that plaintiff has sufficiently alleged actions, when considered collectively, on defendants’
part that might have dissuaded a reasonable employee from complaining about discrimination.
Therefore, the court will deny defendants’ motion to dismiss plaintiff’s ADA retaliation claim.
As for any ADA claim against the individual defendants, that is, Hatch and Bain, the
court agrees with defendants that plaintiff has failed to state a claim.
It is well settled under the ADA that only employers can be
held liable as the statute specifically provides only for actions
against “employers.” Jones v. Sternheimer, 387 Fed. Appx. 366
(4th Cir. 2010). The ADA defines an employer as “a person
engaged in an industry affecting commerce who has twenty five or
more employees and any agent of such person.” 42 U.S.C. §
1211(5)(A). The phrase “agent of such person” does, in the
context of the ADA, create individual liability, but is
an unremarkable expression of respondeat
superior— that discriminatory personnel actions
taken by an employer's agent may create liability
for the employer.
Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510 (4th Cir.
1994) (citation omitted).
Fields v. Trollinger, No. 1:10cv296, 2011 WL 3422689, *6 (W.D.N.C. Mar. 28, 2011) (footnote
omitted) (memorandum and recommendation), adopted, 2011 WL 3421489 (W.D.N.C. Aug. 4,
2011). Accordingly, the ADA claim against the individual defendants will be dismissed.
The court also agrees with defendants that to the extent plaintiff asserts a claim for
employment discrimination by a state department or agency, he has failed to state a claim. In the
introductory paragraph of the complaint, plaintiff alleges that this action is filed pursuant to the
ADA and certain provisions of North Carolina’s State Personnel Act (“Personnel Act”).
(Compl. at 1.) The Personnel Act does prohibit employment discrimination based on a
“handicapping condition.” N.C. Gen. Stat. §§ 126-16, -36. But, it does not apply to “[p]ublic
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school superintendents, principals, teachers, and other public school employees.” N.C. Gen.
Stat. § 126-5(c2)(1). Therefore, plaintiff, as a public school teacher, cannot bring a claim under
the Personnel Act.
Finally, defendants contend that the defendant identified in the caption as “the State of
North Carolina ex rel. the Cumberland County Board of Education” is not a legal entity, and
therefore, the Cumberland County Board of Education should be dismissed for lack of
jurisdiction, insufficiency of process, and insufficiency of service of process. While plaintiff
does not appear to have properly identified the Cumberland County Board of Education in the
complaint’s caption, the court finds that this defect is not fatal.
The naming of all the parties in the caption of the complaint is required by Federal Rule
of Civil Procedure 10(a) and “is not determinative as to who is a party to a suit.” Williams v.
Brashaw, 459 F.3d 846, 849 (8th Cir. 2006) (citation omitted); see also Marsh v. Butler Cnty.,
Ala., 268 F.3d 1014, 1024 n.4 (11th Cir. 2001) (“[T]he caption of the complaint is not part of the
statement of the claim under Rule 8. The caption is something apart, being mandated by a
different rule: Fed. R. Civ. P. 10. The caption is chiefly for the court’s administrative
convenience.”). As one commentator notes,
Although helpful to the district court, the contents of the
caption usually are not considered a part of the pleader's statement
of the claim or the response thereto for purposes of applying the
pleading rules. Moreover, the caption is not determinative as to
the identity of the parties to the action or the district court's
personal jurisdiction over the defendant or its subject matter
jurisdiction. A very common defect in the caption is a misnomer
regarding a party or an erroneous designation of the capacity in
which a party is suing or being sued, or the identification of
something that is not a legal entity.
If the body of the complaint correctly identifies the party
being sued or if the proper person actually has been served with
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the summons and the complaint, federal courts generally will allow
an amendment under Rule 15 to correct technical defects in the
caption when that is thought necessary. This corrective action
seems appropriate inasmuch as a defective caption or even its
complete absence is merely a formal error and never should be
viewed as a fatal defect, particularly when it can be remedied early
in the action. Moreover, allowing the defect to be corrected is
consistent with the spirit of the federal rules in general and with
Rule 8(f) [now 8(e)] in particular.
5A Charles A. Wright et al., Federal Practice and Procedure § 1321 (3d ed. 2004) (footnotes
omitted).
Examining the body of the complaint, it is evident that the Cumberland County Board of
Education is the intended defendant. Plaintiff refers to this defendant as “Cumberland County
Board of Education,” “Board of Education,” and “Board of Education of the County of
Cumberland.” (Compl. ¶¶ 2, 3, 17.) Despite one reference to the “North Carolina Board of
Education,”2 it is evident that plaintiff is suing his employer, the Cumberland County Board of
Education. The court will not dismiss the action as to the Cumberland County Board of
Education on this basis. As plaintiff is allowed to amend the complaint to add allegations
regarding the nature of his disability, he should also use that opportunity to properly identify the
Cumberland County Board of Education in the caption.
In conclusion, plaintiff is ALLOWED to file an amended complaint, as outlined above,
within 15 days of the date of this order. Defendants’ motion to dismiss is ALLOWED IN PART
and DENIED IN PART WITHOUT PREJUDICE. Defendants Hatch and Bain are DISMISSED
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The entire allegation reads: “The conduct of Defendants Hatch and Bain, acting as, respectively Principal
and Assistant Principal of Ann Chesnutt Middle School, was on behalf of the North Carolina Board of Education and
the Cumberland County Board of Education and violated directly the American with Disabilities Act, which conduct
is directly attributable all [sic] named Defendants, for which they, each of them are [sic] liable in damages.”
(Compl. ¶ 17.)
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from this action. To the extent plaintiff assets a claim under the North Carolina State Personnel
Act, such claim is DISMISSED. The only claims remaining are for discrimination and
retaliation under the ADA. Defendant Cumberland County Board of Education may file another
motion to dismiss if plaintiff submits an amended complaint or may renew the original motion to
dismiss if plaintiff does not file an amended complaint in accordance with this order.
This 10 April 2012.
__________________________________
W. Earl Britt
Senior U.S. District Judge
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