BLACKBURN v. THE TRUSTEES OF GUILFORD TECHNICAL COMMUNITY COLLEGE
Filing
36
MEMORANDUM OPINION AND ORDER denying 29 MOTION to Dismiss Amended Complaint. IT IS THEREFORE ORDERED that GTCCs motion to dismiss Blackburns Second Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2) and 12(b)(6) (Doc. 29) is DENIED. Signed by JUDGE THOMAS D. SCHROEDER on 9/30/2011. (Solomon, Dianne)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
GAIL BLACKBURN,
Plaintiff,
v.
THE TRUSTEES OF GUILFORD
TECHNICAL COMMUNITY COLLEGE,
Defendant.
)
)
)
)
)
)
)
)
)
)
No. 1:09-CV-497
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
Before the court is the motion of Defendant, The Trustees
of Guilford Technical Community College (“GTCC”), to dismiss the
Second
Amended
(“Blackburn”)
Complaint
pursuant
to
of
Plaintiff
Federal
12(b)(1), 12(b)(2), and 12(b)(6).
Rules
of
(Doc. 29.)
Gail
Blackburn
Civil
Procedure
GTCC argues that
Blackburn has failed to state a claim upon which relief can be
granted
and
Americans
that
with
her
cause
Disabilities
of
Act
action
of
under
1990
Title
(“ADA”),
§ 12101 et seq., is barred by sovereign immunity.
I
42
of
the
U.S.C.
The arguments
of the parties have been fully briefed, and the matter is ripe
for decision.
DENIED.
For the reasons set forth below, the motion is
I.
FACTUAL AND PROCEDURAL BACKGROUND
The
Second
Amended
Complaint
alleges
the
following:
Blackburn was hired by GTCC on July 10, 2006, and worked as a
housekeeper.
(Doc. 28-1 ¶¶ 8(a), 8(b).)
as
of
a
result
workplace
injuries,
On September 18, 2007,
she
was
placed
on
work
restrictions requiring that she lift no more than 20 pounds, not
stand or sit for a prolonged time, and not repetitively bend,
stoop,
or
Blackburn‟s
squat.
(Id.
physician
restrictions.”
(Id.
¶
8(d).)
released
¶
her
8(e).)
On
to
December 10,
return
However,
GTCC
to
2007,
work
did
“with
not
allow
Blackburn to return to work because it perceived that she was
disabled and could not perform her job.
Thus, it is alleged,
GTCC refused to attempt to accommodate Blackburn‟s limitations
and, on March 12, 2008, terminated her employment.
to 8(i).)
(Id. ¶¶ 8(f)
Despite her medical limitations, she alleges, she was
“capable of performing modified duties of a regular job” as well
as several available suitable positions and could still perform
the
essential
without
functions
reasonable
of
her
employment
accommodations.
Blackburn contends that GTCC
(Id.
position,
¶¶
8(j)
to
with
or
8(l).)
unlawfully discriminated against
her in violation of Title I of the ADA, 42 U.S.C. § 12101 et
seq., and section 504 of the Rehabilitation Act of 1973 (as
amended), 29 U.S.C. § 794(a), and seeks a declaratory judgment,
2
injunctive relief, damages, and fees.1
(Doc. 28-1 ¶¶ 1, 13, 14,
Prayer for Relief.)
II.
ANALYSIS
A.
Sovereign Immunity under the Eleventh Amendment
GTCC seeks dismissal of Blackburn‟s claim under Title I of
the ADA pursuant to Federal Rules of Civil Procedure 12(b)(1)
and (b)(2), arguing that the court lacks jurisdiction over it.2
1
GTCC previously moved to dismiss an earlier version of the complaint
on the grounds that GTCC enjoyed sovereign immunity as well as for
failure to state a claim. (Doc. 14.) The court granted the motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) because
Blackburn failed to allege that she was a “qualified individual” under
the ADA, thus rendering moot the sovereign immunity argument.
See
Blackburn v. Trs. of Guilford Technical Cmty. Coll., 733 F. Supp. 2d
659, 662 n.1, 664-66 (M.D.N.C. 2010). Because the pleading deficiency
could be cured, the court dismissed the case without prejudice.
The
present motion arises as a result of Blackburn‟s re-pleading attempt,
and the court relies in part on the parties‟ briefing concerning
GTCC‟s first motion to dismiss.
2
GTCC does not discuss Rule 12(b)(1) or Rule 12(b)(2) in its brief.
GTCC does allege that the court lacks jurisdiction over Blackburn‟s
Title I claim on the grounds that the Eleventh Amendment grants GTCC
sovereign immunity.
Eleventh Amendment immunity has aspects of both
subject matter and personal jurisdiction, but it does not fall under
either category.
Constantine v. Rectors & Visitors of George Mason
Univ., 411 F.3d 474, 479-83 (4th Cir. 2005).
Further, the Fourth
Circuit has not ruled on whether dismissing a suit on Eleventh
Amendment immunity grounds is a dismissal for failure to state a claim
under Rule 12(b)(6) or a dismissal for lack of subject matter
jurisdiction under Rule 12(b)(1).
See Andrews v. Daw, 201 F.3d 521,
524 n.2 (4th Cir. 2000).
Courts generally consider motions alleging
Eleventh Amendment immunity under Rule 12(b)(1), however. See, e.g.,
Johnson v. N.C. Dept. of Health & Human Servs., 454 F. Supp. 2d 467
(M.D.N.C. 2006); RPR & Assocs. v. O‟Brien/Atkins Assocs., P.A., 921 F.
Supp. 1457, 1460 (M.D.N.C. 1995), aff‟d per curiam, 103 F. App‟x 120,
1996 WL 680724 (4th Cir. 1996); see also Trantham v. Henry Cnty.
Sherriff‟s Office, No. 4:10CV00058, 2011 WL 863498, at *3 (W.D. Va.
March 10, 2011) (noting “recent trend among the district courts within
the Fourth Circuit to consider sovereign immunity under Rule
12(b)(1)”), aff‟d per curiam, No. 11-1337, 2011 WL 2438677 (4th Cir.
3
GTCC contends that the Eleventh Amendment grants it immunity
from claims brought under Title I.
A
plaintiff
bears
the
subject matter jurisdiction.
burden
of
proving
this
court‟s
Richmond, Fredericksburg & Potomac
R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
When evaluating a challenge to subject matter jurisdiction under
Rule
12(b)(1),
complaint
without
and
the
court
consider
converting
may
other
the
look
beyond
evidence
motion
to
one
the
outside
for
face
of
the
the
pleadings
summary
judgment.
Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).
A court
should dismiss for lack of federal subject matter jurisdiction
“only if the material jurisdictional facts are not in dispute
and the moving party is entitled to prevail as a matter of law.”
Richmond, 945 F.2d at 768 (citation omitted).
With certain exceptions, the Eleventh Amendment prohibits
suits against the States.3
instrumentality
that
Regents
Univ.
(1997).
of
the
is
of
This immunity extends to any State
considered
Cal.
v.
an
Doe,
“arm
519
of
U.S.
the
425,
State.”
429-30
State-funded colleges and universities structured to
June 20, 2011) (slip opinion).
Therefore, the court will consider
this motion pursuant to Rule 12(b)(1).
3
The Eleventh Amendment provides that “[t]he Judicial power of the
United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign
State.” U.S. Const. amend. XI.
4
have
close
ties
to
the
State
are
considered
State” for Eleventh Amendment purposes.
“arm[s]
of
the
Md. Stadium Auth. v.
Ellerbe Becket Inc., 407 F.3d 255, 263 (4th Cir. 2005); Huang v.
Bd. of Governors of the Univ. of N.C., 902 F.2d 1134, 1138 (4th
Cir. 1990).
GTCC is State-funded, N.C. Gen. Stat. § 115D-31,
and any judgment against it would be satisfied with State funds,
Miller v. Guilford Technical Cmty. Coll., No. 2:96CV00329, 1998
U.S. Dist. LEXIS 15153, at *6 (M.D.N.C. June 15, 1998).
Thus,
as GTCC contends, it is an “arm of the State” and, absent an
applicable waiver, is immune from private lawsuits in federal
court under the Eleventh Amendment.
Id. (finding GTCC an arm of
the State of North Carolina and, prior to enactment of N.C. Gen.
Stat.
§
Jackson
143-300.35(a),
v.
Hopper,
immune
No.
from
1:05CV96,
suit
2007
in
federal
WL
4320741,
court);
at
*2
(M.D.N.C. Jan. 25, 2007) (finding Piedmont Community College an
“agency of the State of North Carolina” entitled to Eleventh
Amendment
immunity
in
suit
by
prisoner/student),
aff‟d
per
curiam, 241 F. App‟x 949 (4th Cir. 2007).
However, an immunity defense is unavailable if Congress has
abrogated a State‟s immunity in the exercise of its power under
the Fourteenth Amendment or the State has waived its sovereign
immunity by consenting to suit in federal court.
Coll. Sav.
Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S.
666, 670 (1999).
With respect to the first exception, Congress
5
explicitly
invoked
its
“power
to
enforce
the
fourteenth
amendment and to regulate commerce” in the text of the ADA.
U.S.C. § 12101(b)(4).
42
Congress provided that a “State shall not
be immune under the eleventh amendment to the Constitution of
the United States from an action in Federal or State court of
competent jurisdiction for a violation of this chapter.”
U.S.C. § 12202.
42
However, in Board of Trustees of the University
of Alabama v. Garrett, 531 U.S. 356 (2001), the Supreme Court
held that Congress‟s reliance on the Fourteenth Amendment to
abrogate State immunity from private lawsuits under Title I of
the ADA was invalid insofar as it applied to suits for damages.
Id. at 374.
Therefore, absent other waiver, individuals cannot
sue State agencies under Title I of the ADA for damages, but
they may sue for injunctive relief.
Id. at 369-74.
With respect to the second exception, the North Carolina
General
Assembly,
in
the
wake
of
Garrett,
passed
the
State
Employee Federal Remedy Restoration Act (“SEFRRA”) in 2001 to
waive sovereign immunity for State employees seeking to bring
suit in federal court under the ADA.
SEFRRA states:
The sovereign immunity of the State is waived for the
limited purpose of allowing State employees, except
for those in exempt policy-making positions designated
pursuant to G.S. 126-5(d), to maintain lawsuits in
State and federal courts and obtain and satisfy
judgments against the State or any of its departments,
institutions, or agencies under . . . [t]he Americans
with Disabilities Act.
6
N.C. Gen. Stat. § 143-300.35(a).
Thus, Garrett applies to all
States; but North Carolina, to the extent set forth in SEFRRA,
consents to all claims, including those for damages.
See Wright
v. N.C. Dept. of Health & Human Servs., Office of Educ. Servs.,
405 F. Supp. 2d. 631, 635 (E.D.N.C. 2005).
SEFRRA waives sovereign immunity for “State employees” but
does not define them.
community
college
It is therefore silent as to whether
employees
in
employees” under the statute.
North
Carolina
are
“State
The parties have not identified,
nor has the court found, any reported decision of a State or
federal court in North Carolina that addresses whether community
college employees are State employees for purposes of SEFRRA.
One
case
has
noted
that
whether
an
employee
of
a
community
college is a State employee is a “close question,” but it did
not reach the issue.
Coll.,
259
F.
Supp.
See Jenkins v. Trs. of Sandhills Cmty.
2d
432,
446
(M.D.N.C.
2003),
aff‟d
per
curiam, 80 F. App‟x 819 (4th Cir. 2003).
GTCC argues that because SEFRRA references N.C. Gen. Stat.
§ 126-5(d) to define the “policy-making positions” exempted from
the sovereign immunity waiver, the court should look to Chapter
126 to define “State employees.”
“State
employees,”
however.
Section 126-5 does not define
Rather,
it
establishes
which
employees are covered by or exempted from the State Personnel
System
(“SPS”)
-
a
system
of
7
personnel
administration
that
classifies positions paid by the State, sets compensation, and
mandates conditions of employment.
GTCC contends that only those employees covered by the SPS
should be considered “State employees.”
section
126-5(c2)(3)
specifically
It argues that because
exempts
from
the
SPS
“[e]mployees of community colleges whose salaries are fixed in
accordance with the provisions of G.S. 115D-5 and G.S. 115D-20,”
Blackburn
is
Blackburn
exempted
should
not
contemplated by SEFRRA.
from
be
the
SPS.
considered
Thus,
a
GTCC
“State
argues,
employee”
GTCC further points to a provision of
section 126-5 that identifies “State employees” separately from
“community college employees” and contends that this evidences
legislative
intent
to
treat
community
college
employees
separately from “State employees” for purposes of SEFRRA.
See
N.C. Gen. Stat. §§ 126-5(c5), (c6) (noting that Articles 14 and
15 “of this Chapter shall apply to all State employees, public
school employees, and community college employees.”)
Blackburn argues that a plain reading of SEFRRA makes clear
that the only employees excluded from SEFRRA are those in public
policy-making positions.
Had the legislature wished to exclude
all employees who were excluded from the SPS, Blackburn argues,
the statute would have stated as much.
SEFRRA
sovereign
plainly
immunity
states
to
ADA
that
North
claims
for
8
Carolina
all
“State
waived
its
employees”
except
those
in
certain
exempt
N.C. Gen. Stat. § 126-5(d).
GTCC
does
not
argue
that
policy-making
positions
under
N.C. Gen. Stat. § 143-300.35(a).
Blackburn
is
listed
as
an
exempt
policymaker within section 126-5(d), nor is there any indication
that as a housekeeper she falls within that exception.
General
Assembly
meant
for
SEFRRA
to
apply
only
Had the
to
those
employees covered under the SPS, moreover, it could have easily
and plainly said so.
public
policy-making
Instead, it only excluded employees in
positions
defined
in
section
126-5(d).
Under the doctrine of statutory construction expressio unius est
exclusio alterius, meaning “the expression of one thing implies
the
exclusion
of
another,”
the
General
Assembly‟s
limited
exclusion necessarily left all other “State employees” free to
sue under the ADA.
473
F.3d
104,
See Ayes v. U.S. Dept. of Veterans Affairs,
110-11
(4th
Cir.
2006)
(defining
this
“time-
honored maxim”); Kinlaw v. Harris, 364 N.C. 528, 535, 702 S.E.2d
294,
298
(2010)
(applying
doctrine).
In
this
respect,
therefore, Blackburn is correct.
Exemption from the SPS, moreover, does not render a person
incapable of being a “State employee.”
Many State employees are
exempted from the SPS, such as employees in public policy-making
positions
employees,
defined
see
in
N.C.
section
Gen.
126-5(d),
Stat.
§
all
public
126-5(c2)(1),
and
school
other
employees traditionally considered State employees, see, e.g.,
9
N.C. Gen. Stat. § 126-5(c1) (exempting all employees of the
Judicial Department, all employees of the General Assembly, and
employees of the North Carolina State Ports Authority).
The
North Carolina Supreme Court has also acknowledged that the SPS
exempts certain “State employees.”
Powell v. N.C. Dept. of
Trans., 347 N.C. 614, 616, 499 S.E.2d 180, 181 (1998) (“The SPA
[SPS] provides certain protections for state employees subject
to
its
provisions.
protected
by
However,
the
SPA.
some
Elected
state
employees
officials,
are
public
not
school
superintendents, principals, teachers, and other public school
employees,
for
example,
provisions of the SPA.”)
are
not
subject
to
most
of
the
Employees of community colleges whose
salaries are fixed in accordance with the provisions of N.C.
Gen. Stat. §§ 115D-5 and 115D-20 are also exempted from the SPS.
N.C. Gen. Stat. § 126-5(c2)(3).
That the SPS does not include all State employees and that
SEFRRA exempts only a limited subset of policy-makers, however,
does not resolve whether community college employees are “State
employees”
within
the
300.35(a).
In
incomplete.
There
meaning
this
are
of
respect,
several
N.C.
the
Gen.
parties‟
indications,
Stat.
§
analysis
however,
143is
that
community college employees are “State employees.”
The court begins by acknowledging that “rules of statutory
construction dictate that waivers of sovereign immunity „must be
10
construed strictly in favor of the sovereign and not enlarged
beyond what the language requires.‟”
Middlebrooks v. Leavitt,
525 F.3d 341, 347 (4th Cir. 2008) (quoting United States v.
Nordic Vill., Inc., 503 U.S. 30, 34 (1992)).
A court “will find
waiver only where stated „by the most express language or by
such overwhelming implications from the text as (will) leave no
room
any
for
Jordan,
415
other
U.S.
reasonable
651,
673
construction.‟”
(1974)
(quoting
Edelman
Murray
v.
v.
Wilson
Distilling Co., 213 U.S. 151, 171 (1909)).
First, SEFFRA provides expressly that sovereign immunity is
waived
. . .
for
to
the
limited
maintain
purpose
lawsuits
in
of
“allowing
State
and
State
federal
employees
courts
and
obtain and satisfy judgments against the State or any of its
departments, institutions, or agencies
. . .” under specified
federal
Stat.
employment
(emphasis
laws.
added).
The
N.C.
Gen.
reference
to
§
143-300.35(a)
State
“departments,
institutions, or agencies” evidences a clear intent to permit
employees of those entities to sue them.
GTCC is a member of
the North Carolina Community College System founded under N.C.
Gen. Stat. § 115D.
for
the
The purpose of section 115D is “to provide
establishment,
organization,
and
administration
of
a
system of educational institutions throughout the State . . . .”
N.C. Gen. Stat. § 115D-1.
to
community
college
Indeed, section 115D-23 even refers
employees
11
as
“institutional
employees.”
N.C. Gen. Stat. § 115D-23.
Moreover, the Community College
System is deemed “a principal administrative department of State
government” and falls “under the direction of the State Board of
Community Colleges.”
law
treats
community
government.
N.C. Gen. Stat. § 115D-3.
colleges
as
a
department
North Carolina
of
the
State
See Davis v. Cent. Piedmont Cmty. Coll., No. 3:07-
cv-424-RJC, 2008 U.S. Dist. LEXIS 102111, at *11 (W.D.N.C. Dec.
3,
2008); N.C. Gen. Stat. § 115D-24 (waiver of governmental
immunity).
Community colleges have also been found to be an
“agency” of the State of North Carolina.
Conlin v. Southwestern
Cmty. Coll., No. 2:99Cv247-C, 2001 WL 1019918, at *2 (W.D.N.C.
Jan.
24,
2001)
(finding
that
the
“North
Carolina
Community
College System and its constituent colleges are agencies of the
State
of
North
Carolina
by
virtue
of
their
creation
and
governance under Chapter 115D”). Accordingly, GTCC appears to be
a State department, institution and/or agency within the meaning
of SEFRRA.4
Second,
in
its
initial
briefing
(and
before
the
court
raised the issue of the application of SEFRRA), GTCC trumpeted
heavily the fact that it is an “arm of the State” and, on that
4
This conclusion is consistent with section 115D‟s requirement that
“much of [a community college‟s] operations [] be governed by, or in
compliance with, the State Board, leaving [the college] little
autonomy from the State.”
Davis, 2008 U.S. Dist. LEXIS 102111, at
*11.
12
basis, was immune from suit.5
(Doc. 15 at 14-15.)
It is logical
to conclude that, absent an express exemption (that does not
appear), employees of an entity that is an arm of the State may
be “State employees.”
See Md. Stadium Auth., 407 F.3d at 263
(stating that colleges and universities funded by the State, and
which
are
considered
structured
an
“arm
to
of
have
the
close
ties
State”
for
to
the
Eleventh
State,
are
Amendment
purposes); Miller, 1998 U.S. Dist. LEXIS 15153, at *5-*6 (noting
GTCC is State-funded and an arm of the State); Davis, 2008 U.S.
Dist. LEXIS 102111, at *7-*9 (finding community college an arm
of the State).
As Blackburn aptly notes, it is logical that an
employee be either a federal employee, a State employee, or a
private employee, and if an employee‟s salary is set by the
State Board of Community Colleges, N.C. Gen. Stat. § 115D-5(a),
that employee is likely a State, not a private, employee.
5
GTCC relied on Peterson v. Davidson County Community College, 367
F. Supp. 2d 890 (M.D.N.C. 2005), as evidence that employees of
community colleges are not State employees.
In Peterson, the
plaintiff, an employee of Davidson Community College, sued the
community college, alleging a violation of the Age Discrimination in
Employment Act of 1967 (“ADEA”). The court stated that “there is no
state statute or constitutional provision demonstrating the state of
North Carolina‟s waiver of its immunity regarding the ADEA.”
Peterson, 367 F. Supp. 2d at 893.
At the time, of course, SEFRRA
provided such a waiver for “State employees.” See N.C. Gen. Stat. §
143-300.35(a)(2). While Peterson was decided four years after SEFRRA
was enacted, SEFRRA was never referenced in the opinion.
It thus
appears that the parties simply overlooked it (as they did here until
the court brought it to their attention and requested supplemental
briefing (Doc. 21)).
13
Third,
the
administrative
Office
agency
of
State
established
to
Personnel
implement
(“OSP”),
the
SPS,
the
N.C.
Gen. Stat. § 126-3(b)(1), defines “State employee” in a way that
covers
community
college
employees.
The
North
Carolina
Administrative Code defines “State employees,” for purposes of
the OSP, as “all employees of the State of North Carolina who
are subject to any part of the State Personnel [System], unless
otherwise
indicated
in
this
1A.0003(5) (emphasis added).
Chapter.”
25
N.C.
Admin.
Community college employees are
subject to both Article 14 and Article 15 of the SPS.
Gen. Stat. §§ 126-5(c5), (c6).
Code
See N.C.
Therefore, while the SPS itself
does not define “State employees,” the agency established to
implement the SPS defines “State employees” in a fashion that
covers community college employees.
Fourth, other North Carolina statutes have defined “State
employees” in a way that includes community college employees.
For example, N.C. Gen. Stat. § 143-345.20(3), which establishes
the “State Employee Incentive Bonus Program,” defines a “State
employee” as follows:
a. A person who is a contributing member of the
Teachers‟ and State Employees‟ Retirement System of
North Carolina, the Consolidated Judicial Retirement
System of North Carolina, or the Optional Program.
b. A person who receives wages from the State as
a part-time or temporary worker, but is not otherwise
a contributing member of one of the retirement
programs listed in subdivision a . . . .
14
Neither
GTCC
contributes
nor
to
Blackburn
the
has
Teachers‟
indicated
and
State
whether
Employee‟
Blackburn
Retirement
System, but community college employees are eligible to do so.
See N.C. Gen. Stat. § 115D-22.
Stat.
§
143-300.2,
which
Another example is N.C. Gen.
defines
the
State
entities
whose
employees may request that the State provide for the employees‟
defense when they are sued for their acts or omissions while
performing their official duties “as a State employee.”
N.C. Gen. Stat. § 143-300.3.
include
“community
See
The statute defines the “State” to
colleges,”
thus
rendering
their
employees
“State employees” who are eligible to request that the State
provide for their defense.
N.C. Gen. Stat. § 143-300.2(4).6
Yet
another example is N.C. Gen. Stat. § 135-45.1(11), which details
the benefits system for “Teachers and State employees.”
defines
an
“Employee
or
State
employee”
as
“[a]ny
It
permanent
full-time or permanent part-time regular employee (designated as
half-time or more) of an employing unit.”
is
defined
Community
to
include
College;
State
“[a]
North
Department,
An “employing unit”
Carolina
Agency,
School
or
System;
Institution;
Administrative Office of the Courts; or Association or Examining
6
N.C. Gen. Stat. § 143-300.2 provides: “„The State‟ includes all
departments, agencies, boards, commissions, institutions, bureaus, and
authorities of the State. Community colleges, technical colleges, and
occupational licensing boards regulated by Chapter 93B of the General
Statutes shall be deemed State agencies for purposes of this Article.”
15
Board whose employees are eligible for membership in a StateSupported Retirement System.”
N.C. Gen. Stat. § 125-45.1(12).
Therefore, though the term “State employee” is not defined in
SEFRRA,
the
term
is
defined
elsewhere
to
include
community
college employees for purposes of the State‟s employee benefits
programs, bonus programs, and provision of legal defense.7
Fifth, GTCC‟s reliance on portions of section 126-5 that
refer
separately
to
“State
employees”
and
“community
employees” ignores the structure of that statute.
college
Under the
heading of “Employees subject to Chapter; exemptions,” section
126-5(a) provides that it shall apply to “[a]ll State employees
not
herein
exempt,”
N.C.
Gen.
Stat.
§
126-5(a)(1),
certain
defined “employees of . . . local entities,” § 126-5(a)(2), and
certain “[c]ounty employees,” § 126-5(a)(3).
Community college
employees
defined
clearly
do
not
fall
sections 126-5(a)(2) or (3).
within
any
group
in
The statute‟s subsequent listing
7
GTCC points out that other statutory provisions seem to treat
community colleges like local governments, whose employees GTCC argues
are not treated as “State employees.”
For example, N.C. Gen. Stat.
§ 147-33.82, which describes the functions of the Office of
Information
Technology
Services,
describes
“local
governmental
entities” to include community colleges for purposes of subsection
147-33.82(b).
And, N.C. Gen. Stat. § 147-86.20(5), which defines
“State Agency” for purposes of the Statewide Accounts Receivable
Program, excludes community colleges (as well as the General Court of
Justice) from its definition.
Finally, N.C. Gen. Stat. § 12-3.1(b),
which defines “Agency” for purposes of setting fees and charges,
exempts community colleges from its definition. Importantly, however,
it also exempts the University of North Carolina, whose employees GTCC
appears to acknowledge (Doc. 25 at 3) would be “State employees.” See
N.C. Gen. Stat. § 12-3.1(b). These statutory provisions appear to be
distinguishable.
16
of exemptions, including the express exemption of “[e]mployees
of
community
colleges,”
§
126-5(c2)(3),
can
only
be
given
meaning if one concludes that they would otherwise fall within
the meaning of covered “State employees” in section 126-5(a)(1).
Sixth,
relies
to
the
provisions
argue
that
of
the
section
SPS
126-5
upon
distinguishes
which
between
GTCC
“State
employees” and community college employees by referring to them
separately, N.C. Gen. Stat. §§ 126-5(c5) & (c6), state that
Articles 14 and 15 of the SPS nevertheless apply to both groups.
Article 14 provides the right of “any State employee” to sue in
State
superior
court
for
damages
and
injunctive
relief
retaliation for reporting certain acts of wrongdoing.
for
N.C. Gen.
Stat. § 126-84.
Article 15 prohibits the limitation on “[a]
State
right
employee‟s
to
speak
to
a
member
of
the
General
Assembly at the member‟s request.”
N.C. Gen. Stat. § 126-90.
Thus,
of
both
Articles
address
rights
“State
employees”
and
expressly apply them to community college employees.
Seventh, like employees of community colleges, University
of North Carolina employees whose salaries are fixed under the
authority
exempted
vested
from
in
the
the
SPS.
Board
N.C.
of
Governors
Gen.
Stat.
are
§
generally
126-5(c1)(9)
(exempting except as to Articles 6 and 7); Univ. of N.C. v.
Feinstein, 161 N.C. App. 700, 703, 590 S.E.2d 401, 402 (2003)
(noting that “[t]he rights of university employees to challenge
17
any employment action in [the Office of Administrative Hearings]
must
arise
independently
from
The
State
Personnel
Act”).
However, North Carolina courts appear to consider employees of
the University of North Carolina system to be “State employees.”
See, e.g., Teague v. W. Carolina Univ., 108 N.C. App. 689, 424
S.E.2d
684
(1993)
(upholding
decision
of
State
Personnel
Commission that plaintiff, who claimed she was passed over for
consideration
as
Social
Research
Assistant
II,
was
a
“State
employee” who was not improperly denied priority consideration).
It would seem anomalous that university employees are “State
employees”
for
purposes
of
the
SEFRRA
waiver
yet
community
college employees are not.
For all these reasons, the court finds that the General
Assembly plainly intended to waive sovereign immunity for “State
employees”
employees
under
of
SEFRRA
community
and
further
colleges
intended
within
the
to
meaning
include
of
the
Blackburn
was
waiver.
The
Second
Amended
Complaint
alleges
that
“hired” by GTCC and was employed as a housekeeper; otherwise, it
does not provide the terms of her employment.8
8
(Doc. 28 ¶¶ 8(a),
This is important because if Blackburn were an independent
contractor, under North Carolina law she would not have been an
employee of GTCC and thus not a “State employee” under section 143300.35.
See N.C. Gen. Stat. § 143-300.2(d) (explaining the an
“„[e]mployee‟ includes an officer, agent, or employee but does not
include an independent contractor”).
18
8(b).)
The Second Amended Complaint alleges further that her
employment ended in “termination,” thus indicating that she was
an employee of GTCC.
(Id. ¶ 8(j).)
Therefore, the court finds
that the Second Amended Complaint alleges that Blackburn was a
“State employee” under SEFRRA such that her ADA claim is not
barred by the Eleventh Amendment.
Accordingly, GTCC‟s motion to
dismiss based on sovereign immunity will be denied.9
B.
GTCC’s Rule 12(b)(6) Motion
The purpose of a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6)
is to “test[] the sufficiency of a
complaint” and not to “resolve contests surrounding the facts,
the
merits
of
a
claim,
or
the
applicability
of
defenses.”
Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.
1992).
In considering a Rule 12(b)(6) motion, a court “must
accept as true all of the factual allegations contained in the
complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam), and all reasonable inferences must be drawn in the
plaintiff‟s favor, Ibarra v. United States, 120 F.3d 472, 474
(4th Cir. 1997).
9
GTCC does not contend that Blackburn‟s claim under section 504 of
the Rehabilitation Act is barred by the Eleventh Amendment.
See 42
U.S.C. § 2000d-7 (“A State shall not be immune under the Eleventh
Amendment of the Constitution of the United States from suit in
Federal court for a violation of section 504 of the Rehabilitation Act
of 1973[.]”); see also Constantine, 411 F.3d at 491-92 (holding that
section 2000d-7 is a constitutional waiver of Eleventh Amendment
immunity).
19
Under Federal Rule of Civil Procedure 8(a)(2), a complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”
Although the complaint
need only “give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests,” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957), abrogated on other grounds by Twombly,
550
U.S.
labels
544),
and
a
plaintiff‟s
conclusions,
obligation
and
a
“requires
formulaic
more
recitation
elements of a cause of action will not do,” id.
than
of
the
Rule 12(b)(6)
protects against meritless litigation by requiring sufficient
factual
allegations
“to
raise
a
right
to
relief
above
the
speculative level” so as to “nudge[] the[] claims across the
line
from
conceivable
to
plausible.”
Id.
at
555,
570;
see
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-51 (2009).
Employment
discrimination
claims
carry
no
heightened
pleading standard, see Twombly, 550 U.S. at 569-70, nor must an
employment
discrimination
complaint
contain
specific
facts
establishing a prima facie case, Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 510-11, 515 (2002).
not
interpreted
Swierkiewicz
as
Yet the Fourth Circuit has
removing
the
burden
of
a
plaintiff to plead facts sufficient to state all the elements of
her claim.
Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761,
764-65 (4th Cir. 2003) (holding that the plaintiff failed to
20
allege
facts
sufficient
to
support
all
the
elements
of
her
hostile work environment claim).
GTCC puts forth two arguments in support of its motion to
dismiss.
First, it argues that Blackburn has failed to allege
sufficient facts to make plausible her allegation that she was
qualified to perform the essential functions of her position as
housekeeper.
Second, it contends that she has failed to allege
sufficient facts to support her claim that GTCC regarded her as
disabled; rather, it argues, she has alleged only that she was
placed
engaged
on
work
in
a
accommodation
position.”
sufficiently
restrictions
by
“self-initiated
in
not
being
(Doc. 30 at 10.)
alleged
a
her
physician
opposition
placed
in
some
to
and
that
she
a
lack
of
other
„suitable‟
Blackburn contends that she has
“regarded
as”
claim
at
this
pleading
stage.
At the time of the alleged events, Title I of the ADA
provided that “[n]o covered entity shall discriminate against a
qualified individual with a disability because of the disability
of such individual in regard to . . . discharge of employees
. . .
and
employment.”
other
terms,
conditions,
42 U.S.C. § 12112(a).10
10
and
privileges
of
To establish a claim of
The ADA Amendments Act of 2008 (“ADAAA”), Pub. L. No. 110-325, 122
Stat. 3553, which became effective on January 1, 2009, changed “with a
disability because of the disability of such individual” to “on the
basis of disability.” See id. § 5(a)(1), 122 Stat. at 3557. For the
reasons noted previously, the ADAAA does not apply retroactively to
21
discriminatory firing under Title I, a plaintiff must prove that
(1) she has a “disability,” (2) she is a “qualified individual,”
and
(3)
in
“„discharg[ing]‟
[her],
[her]
employer
„discriminate[d] against [her] because of [her] disability.‟”
Martinson v. Kinney Shoe Corp., 104 F.3d 683, 686 (4th Cir.
1997) (first and fourth alterations in original) (quoting 42
U.S.C. § 12112(a)).11
The ADA defines “disability” as “(A) a physical or mental
impairment
that
activities
of
substantially
[the]
limits
individual;
(B)
one
or
a
more
record
major
of
such
life
an
impairment; or (C) being regarded as having such an impairment.”
42
U.S.C.
§
12102(1).12
An
individual
may
fall
within
the
“regarded as” category in one of two ways: “(1) a covered entity
mistakenly believes that a person has a physical impairment that
substantially limits one or more major life activities, or (2) a
covered entity mistakenly believes that an actual, nonlimiting
impairment
substantially
limits
one
or
more
major
life
Blackburn‟s case. See Blackburn, 733 F. Supp. 2d at 662 n.2; see also
Cochran v. Holder, No. 10-1548, 2011 WL 2451724, at *3-*4 (4th Cir.
June 21, 2011) (per curiam) (unpublished opinion) (concluding that the
ADAAA does not apply retroactively).
11
Section 504 of the Rehabilitation Act (as amended) prohibits
discrimination on the basis of a disability “under any program or
activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).
The same standards applicable to Title I of the ADA also govern
complaints of employment discrimination arising under section 504 of
the Rehabilitation Act. Id. § 794(d).
12
At the time of the alleged events, this provision was located at 42
U.S.C. § 12102(2).
See generally, supra, note 10 (discussing the
ADAAA).
22
activities.”
Sutton v. United Air Lines, Inc., 527 U.S. 471,
489 (1999), superseded by statute, ADA Amendments Act of 2008,
Pub. L. No. 110-325, 122 Stat. 3553.
Blackburn
previously
conceded
that
she
is
not
disabled.
Blackburn v. Trs. of Guilford Technical Cmty. Coll., 733 F.
Supp. 2d 659, 663 n.3 (M.D.N.C. 2010).
on her “regarded as” claim.
addressed
allegations
and
rejected
that
GTCC
Thus, she proceeds only
Moreover, the court previously
GTCC‟s
regarded
argument
her
to
that
be
Blackburn‟s
disabled
were
insufficient, id. at 663-64, and the court will not revisit that
ruling here.13
The sole issue before the court, therefore, is
whether the Second Amended Complaint should be dismissed for
13
It is nevertheless noteworthy that GTCC argues that Blackburn‟s
allegations indicate only that “the College recognized her physicianimposed work restrictions prevented her from doing the work of a
Custodian” (Doc. 30 at 10).
This is no more than GTCC‟s
interpretation of the alleged facts.
GTCC cites Wooten v. Farmland
Foods, 58 F.3d 382 (8th Cir. 1995), for the proposition that “an
employer does not regard an employee as disabled when it lays him off
based upon the physical restrictions imposed by a doctor.”
(Doc. 30
at 10.)
But Wooten was a summary judgment decision based on a
detailed factual inquiry, after which the court concluded that the
plaintiff had failed to provide sufficient evidence to establish that
the employer regarded him as disabled rather than merely encumbered by
physician-imposed restrictions that could not be accommodated. See 58
F.3d at 386.
Indeed, the issue whether an employer regarded an
employee to be disabled is frequently resolved on a summary judgment
record, because it raises fact issues. 1 Barbara T. Lindemann & Paul
Grossman, Employment Discrimination Law 849 & n.330 (C. Geoffrey
Weirich ed., 4th ed. 2007) (collecting cases); cf. Terry v. City of
Greensboro, No. 1:02CV221, 2003 WL 151851, at *3 (M.D.N.C. Jan. 17,
2003) (granting Rule 12(b)(6) motion but noting (unlike the present
case) that the plaintiff did not allege that he was prevented from
returning to work in any position); Thomas v. Northern Telecom, Inc.,
157 F. Supp. 2d 627, 632 (M.D.N.C. 2000) (granting Rule 12(b)(6)
motion because plaintiff also alleged the employer gave her excessive
work, which was inconsistent with a claim of perceived disability).
23
failure to allege facts supporting the plausible inference that
Blackburn is a qualified individual.
GTCC
argues
that
Blackburn‟s
allegation
that
she
could
perform the essential functions of her position despite her work
restrictions
support.
is
merely
a
“bare
(Doc. 30 at 12.)
assertion”
devoid
of
factual
It further contends that the facts
alleged as to her work restrictions — that she could not lift
more than 20 pounds, stand or sit for a prolonged period, or
bend/stoop/squat
“conclusory”
functions
allegation
of
Blackburn‟s
undermined
repetitively
her
job
contention
by
her
that
as
—
render
she
could
perform
housekeeper.
that
she
allegations
was
that
implausible
the
her
essential
Finally,
it
argues,
“qualified”
is
further
she
was
“capable
of
performing modified duties of a regular job” (Doc. 28-1 ¶ 8(k)
(emphasis
added))
and
that
GTCC
refused
to
accommodate
her
limitations.
A “qualified individual” is an individual “who, with or
without
reasonable
accommodation,
can
perform
the
essential
functions of the employment position that such individual holds
or desires.”
“the
42 U.S.C. § 12111(8).
fundamental
job
duties
of
“Essential functions” means
the
employment
position
the
individual with a disability holds or desires” and “does not
include the marginal functions of the position.”
§ 1630.2(n)(1).
29 C.F.R.
A job function may be “essential” for various
24
reasons, including the fact that the position exists to perform
that function, the existence of a limited number of employees
available among whom that job function can be distributed, and
the fact that the employee was hired for her expertise in that
particular
function.
Id.
§ 1630.2(n)(2).
In
determining
whether a job function is “essential,” a court may consider,
among other things, the employer‟s judgment and the amount of
time the employee must spend performing that function.
§ 1630.2(n)(3)(i),
(iii).
Further,
“[a]
plaintiff
Id.
must
show
that [s]he can perform the essential functions of the job at the
time of the employment decision or in the immediate future.”
Lamb
v.
Qualex,
Inc.,
33
F.
App‟x
49,
57
(4th
Cir.
2002)
(unpublished opinion).14
Blackburn has plainly alleged that she was employed as a
housekeeper,
placed
on
work
restrictions
(as
noted),
and
released by her physician to return to work “with restrictions”
but
that
GTCC
refused
to
allow
She
has
also
to
return
because
it
(Doc. 28-1 ¶¶ 8(b), 8(d) to
perceived her to be disabled.
8(f).)
her
alleged
that
“[d]espite
[her]
medical
limitations, [she] could still perform the essential functions
of the employment position.”
(Id. ¶ 8(l).)
She has not alleged
the “essential functions” of her job, but GTCC has not presented
14
Unpublished decisions are not precedential but are cited for their
persuasive authority.
25
case law requiring this at this stage.15
Cf., e.g., Kirbyson v.
Tesoro Ref. & Mktg. Co., No. 09-3990, 2010 WL 761054, at *6
(N.D. Cal. Mar. 2, 2010) (permitting an ADA claim to proceed
despite the defendant‟s argument that the plaintiff needed to
“plead, with greater specificity . . . the essential features of
the position that he sought to fill, and how [the defendant] was
supposed to accommodate him” and noting that “[the defendant]
fails to identify any legal authority that suggests that [the
plaintiff] must plead this level of particularity at this stage
of the litigation”); Imbody v. C & R Plating Corp., No. 1:08-CV0218,
2009
WL
196251,
at
*1-*4
(N.D.
Ind.
Jan.
23,
2009)
(denying a Rule 12(b)(6) motion where the plaintiff alleged that
he was injured on the job, his physician provided him with a
variety of work restrictions (specified in the complaint), he
sought accommodation from his employer but was denied it, and
his
employer
could
perform
terminated
the
him
shortly
essential
thereafter,
functions
of
his
although
job
he
with
accommodations and restrictions, and rejecting the employer‟s
argument that the plaintiff “ha[d] not pled enough facts to
establish that . . . he could perform the essential functions of
15
EEOC v. Supervalu, Inc., 674 F. Supp. 2d 1007 (N.D. Ill. 2009),
cited by GTCC, held that an allegation that the employee was a
“qualified individual with a disability” was insufficient where the
complaint did not even assert that she could perform the “essential
functions” of her job.
See id. at 1011, 1014.
The opinion did not
address whether or to what extent an ADA complaint must list and
describe the “essential functions” of her job.
26
his job”).16
But cf., e.g., Kelley v. Corr. Corp. of Am., 750 F.
Supp. 2d 1132, 1139 (E.D. Cal. 2010) (granting a Rule 12(b)(6)
motion to dismiss a California State-law claim where that law
used
the
ADA‟s
definition
of
“qualified
individual”
and
the
complaint “alleges no facts at all to indicate whether Plaintiff
is a qualified individual or what the essential elements of her
job are or what the essential elements of an alternative job
might be”); Gladden v. Winston Salem State Univ., 495 F. Supp.
2d
517,
“Plaintiff
522
is
(M.D.N.C.
a
2007)
disabled
(finding
individual
the
who,
allegation
with
that
reasonable
accommodations can perform his job duties,” to be conclusory and
“insufficient” to satisfy the requirement that “with reasonable
accommodation he could perform the essential functions of the
position”
because
it
“merely
recite[d]
the
language
of
the
applicable cause of action”).
Contrary to GTCC‟s argument,
Blackburn‟s allegation
that
she could perform “modified duties” of a “regular job” (Doc. 281 ¶ 8(k)) does not necessarily mean that she could not perform
her job‟s “essential functions.”
A determination of whether the
“modified duties” Blackburn claims she could perform would have
satisfied
the
“essential
functions”
16
of
her
job
ultimately
These cases are cited for their interpretations of the applicable
pleading standard as it relates to the “qualified individual”
requirement.
The court does not address here the issue of an
employer‟s duty to accommodate a plaintiff alleging “regarded as”
liability. Cf. Blackburn, 733 F. Supp. 2d at 665 (holding the “better
reasoned view” to be that no such duty exists).
27
requires a detailed factual inquiry, which ordinarily would be
decided on a factual record.17
C.f., e.g., Hayes v. Elementary
Sch. Dist. No. 159, No. 10-C-7095, 2011 WL 1059890, at *3 (N.D.
Ill. Mar. 21, 2011) (“[W]hether or not [the plaintiff] was able
to perform her job with or without reasonable accommodations
involves a factual analysis regarding [her] physical condition
and job duties that is far beyond the scope of the pleadings.”
(denying a Rule 12(b)(6) motion)); Liss v. Nassau Cnty., 425 F.
Supp. 2d 335, 342 (E.D.N.Y. 2006) (in a pre-Twombly decision,
denying a Rule 12(b)(6) motion because although “[t]he plaintiff
alleges
no
facts
regarding
the
„essential
functions‟
of
his
employment, or that support the inference that he was unable to
perform these essential functions,” “the question of what tasks
the plaintiff could and could not perform . . . is one of fact
17
Significantly, Blackburn elsewhere suggests that modifications may
not have been necessary, tracking the statutory language and alleging
that she “could still perform the essential functions of the
employment position with or without reasonable accommodations.” (Doc.
28-1 ¶ 8(l) (emphasis added).) Thus, her “modified duties” allegation
(id. ¶ 8(k)) and her allegation that she was “capable of performing
the duties of several available suitable positions” (id. ¶ 8(j)) need
not be taken as establishing that she could not perform her original
job, at least at this pleading stage.
GTCC‟s related argument that Blackburn‟s Charge of Discrimination
filed with the United States Equal Employment Opportunity Commission
(Doc. 29-1 at 2-3; see Doc. 30 at 17-18 (passing reference)) shows
that Blackburn could not perform the “essential functions” of her job
was not developed until GTCC‟s reply brief (see Doc. 35 at 4), leaving
Blackburn no meaningful opportunity to respond. Even so, the Charge‟s
statement that GTCC “failed to provide [Blackburn] with a reasonable
accommodation and terminated [her] due to [her] medical condition”
(Doc. 29-1 at 2) does not necessarily imply that she could not perform
the “essential functions” of her position.
28
and, therefore, not appropriate for determination on a motion to
dismiss”).
It is noteworthy that the few ADA cases GTCC cites
in support of its argument were not decided on the pleadings but
rather
on
summary
judgment
after
a
factual
record
had
been
developed to allow a comparison of the employee‟s abilities and
limitations with the “essential functions” of the job.
This is
consistent with the court‟s review of the case law.
Cf., e.g.,
1
Employment
Barbara
T.
Lindemann
&
Paul
Grossman,
Discrimination Law 853 & n.342 (C. Geoffrey Weirich ed., 4th ed.
2007) (listing federal appellate court decisions conducting or
requiring “a factual comparison of the [plaintiff‟s] abilities,
with
or
without
reasonable
accommodation,
with
the
essential
functions of the job at issue,” all after the submission of
evidence).
GTCC contends that “[m]edical restrictions are . . . highly
relevant to the question of whether an employee has a colorable
claim under the ADA,” Williams v. Avnet, Inc., 910 F. Supp.
1124,
1131
(E.D.N.C.
1995),18
and
it
points
to
Blackburn‟s
alleged restrictions on lifting more than 20 pounds, standing or
sitting
for
a
prolonged
time,
and
repetitively
stooping, or squatting (see Doc. 28-1 ¶ 8(d)).
bending,
The effect of
Blackburn‟s alleged restrictions on her ability to perform the
18
The Fourth Circuit affirmed Williams on other grounds and did not
reach the holding relevant to GTCC‟s quotation.
See Williams v.
Channel Master Satellite Sys., Inc., 101 F.3d 346, 349 n.3 (4th Cir.
1996) (per curiam).
29
“essential functions” of her job, however, cannot be determined
without a fact-specific inquiry that is not possible on this
record, as discussed above.
At
the
pleading
stage,
the
court
is
not
tasked
with
determining the merits of a claim, only whether it is plausibly
stated.
At this preliminary stage, the court finds that while
Blackburn pushes the envelope on the minimum required to survive
a motion to dismiss, her Second Amended Complaint sufficiently
alleges that she could perform the “essential functions” of her
job
as
housekeeper,
particularly
since
she
was
apparently
capable of doing so before her work-related injury (see id. ¶¶
8(b), 8(c)).
her
claimed
The court cannot determine as a matter of law that
post-injury
ability to do so was
not
plausible,
where the “essential functions” of her job are not before the
court and a fact-specific inquiry will be necessary.
Therefore,
the court finds that the Second Amended Complaint pleads facts
sufficient
to
raise
Blackburn‟s
right
to
relief
speculative level, even if only marginally so.
above
the
Whether she can
prove her claim remains for another day.
III. CONCLUSION
For the reasons set forth above,
IT
IS
THEREFORE
ORDERED
that
GTCC‟s
motion
to
dismiss
Blackburn‟s Second Amended Complaint pursuant to Federal Rules
30
of Civil Procedure 12(b)(1), 12(b)(2) and 12(b)(6) (Doc. 29) is
DENIED.
/s/ Thomas D. Schroeder___
United States District Judge
September 30, 2011
31
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