DICKINSON v. UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, THE et al
Filing
21
MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 03/16/2015; that Defendants' motion to dismiss (Doc. 12 ) is GRANTED as to the fifth claim for relief against the Individual Defendants in their official capacity, which is DISMISSED WITH PREJUDICE, and GRANTED as to Plaintiff's claim for punitive damages, which is DISMISSED WITH PREJUDICE, except as against the Individual Defendants sued in their personal capacity, which survives. Defendants' motion to dismiss is otherwise DENIED. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ERIN DICKINSON,
Plaintiff,
v.
UNIVERSITY OF NORTH CAROLINA,
UNIVERSITY OF NORTH CAROLINA
SCHOOL OF THE ARTS; and FRANCO
COLAVECCHIA, JOSEPH TILFORD,
HOWARD JONES, and VICKI DAVIS,
in their individual and
official capacities,
Defendants.
)
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1:14cv412
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
Plaintiff,
Defendant
Erin
University
Dickinson,
of
a
North
former
Carolina
graduate
School
student
of
the
at
Arts
(“UNCSA”), alleges that she was dismissed in violation of the
Americans
(“ADA”),
with
the
Disabilities
Rehabilitation
Act,
Act,
42
29
U.S.C.
U.S.C.
§§
12101
§§
et
seq.
701
et
seq.
(“Rehabilitation Act”), and North Carolina common law.
She names
as Defendants the University of North Carolina (“UNC”), UNCSA, and
several university employees.
motion
to
dismiss
pursuant
Before the court is Defendants’
to
Rules
12(b)(1),
12(b)(6) of the Federal Rules of Civil Procedure.
12(b)(2),
and
(Doc. 12.)
The
motion has been fully briefed and is ready for decision.
For the
reasons set forth below, Defendants’ motion will be granted in
part and denied in part.
I.
BACKGROUND
Dickinson’s complaint is lengthy.
The essential allegations,
taken in the light most favorable to Dickinson, show the following:
Dickinson applied to and was accepted for the graduate program
in Scenic Art in the School of Design and Production at UNCSA.
(Doc. 9 (Am. Compl.) ¶ 11.)
three
years
trimesters.
to
complete,
(Id. ¶ 12.)
This master’s degree program takes
with
each
year
broken
into
three
The school’s academic policy requires
students to maintain a grade point average (“GPA”) of at least a
B, both cumulatively and per trimester.
(Id. ¶¶ 14–15.)
If a
student fails to meet this requirement, he or she may be placed on
academic probation.
(Id.)
At the close of each school year,
students must be invited back for the next year; continuation is
not automatic.
Dickinson
(Id. ¶ 46.)
has
suffered
from
two
medial
conditions
from
adolescence through her time at UNCSA: severe migraine headaches,
and polycystic ovary syndrome, “both of which are periodically
completely disabling.” (Id. ¶¶ 16, 18.) Polycystic ovary syndrome
can cause Dickinson to be in “debilitating pain” for weeks at a
time.
(Id. ¶ 17.)
In her first trimester at UNCSA, fall 2008, one of Dickinson’s
instructors was Defendant Franco Colavecchia.
(Id. ¶ 19.)
became ill and was replaced by Defendant Vicki Davis.
2
He
(Id. ¶¶ 20–
21.)
Davis was not well received by her students because she
ridiculed them.
(Id. ¶¶ 23–26.)
Dickinson and another student
approached their advisor, Defendant Howard Jones, about Davis, and
eventually filed a written complaint against her.
(Id. ¶¶ 26–27.)
Dickinson alleges, on information and belief, that Joseph Tilford
(Dean of the School of Design and Production) and Jones conveyed
the complaint to Davis, who in turn retaliated against Dickinson
by giving her a grade of B- for the fall trimester (her worst grade
for the term).
(Id. ¶ 28.)
Davis continued to ridicule her students in the winter term.
(Id. ¶ 30.)
Dickinson wore sunglasses in class because the
fluorescent lighting triggered severe migraines.
(Id. ¶¶ 32–33.)
Davis mocked and ridiculed Dickinson for this in front of her
classmates.
(Id. ¶ 34.)
Dickinson again complained about Davis,
who again gave Dickinson a B- (her worst grade for the term).
¶¶ 35–37.)
(Id.
For the 2009 spring term, Colavecchia returned to
teaching, and Davis’ role substantially declined.
(Id. ¶ 38.)
Colavecchia assigned Dickinson a grade of B in each of two classes.
(Id. ¶¶ 39–40.)
At the end of the first year, based on Dickinson’s grades and
portfolio presentation, UNCSA extended her a written offer to
continue in the program for a second year, which she accepted.
(Id. ¶¶ 45–48.)
At the end of her second year, Dickinson was again
invited to return for her third and final year.
3
(Id. ¶ 59.)
Dickinson accepted the offer, paid the deposit, and applied for
financial aid.
(Id. ¶ 60.)
Around the time Dickinson was completing her second year,
UNCSA decided not to reappoint Davis on tenure track but offered
her a terminal teaching appointment for the 2010–2011 school year.
(Id. ¶ 62.)
One of the reasons for Davis’ failure to secure
reappointment was student complaints about her teaching, including
Dickinson’s
complaints
about
being
ridiculed
for
her
health
issues. (Id. ¶ 63.) Dickinson alleges, on information and belief,
that Colavecchia decided to retaliate against Dickinson for her
role in getting Davis fired by getting Dickinson expelled.
(Id.
¶ 64.)
In summer 2010, after Dickinson had already accepted her third
year offer and paid her deposit, UNCSA informed her that she was
being dismissed because she had received two grades of F from
Colavecchia for incomplete work for the past spring trimester.
(Id. ¶ 65.)
Dickinson denies that she failed to complete any work.
(Id. ¶¶ 66–74.)
She was told that her opportunity to make up the
grades had passed, requiring her dismissal.
Dickinson
¶¶
79–82.)
appealed
unsuccessfully
Administrators
then
tried
to
to
(Id. ¶ 67.)
Colavecchia.
(Id.
avoid
with
meeting
Dickinson, but eventually Tilford did so right before the fall
2010 term began.
(Id. ¶¶ 85–102.)
Tilford told her that she could
only remain in school if she signed a probationary agreement. (Id.
4
¶ 96.) The agreement required Dickinson, unlike all other graduate
students, to make at least a B in every class.
(Id.)
She was
also required to retake set design to make up credits for the class
Colavecchia claimed she did not complete.
(Id. ¶ 97.)
Fearing
she would lose her financial aid unless she agreed, and doubting
that UNCSA administrators would overturn Tilford’s decision, she
agreed to the terms of probation and began the fall term.
¶¶ 98–102.)
(Id.
Besides her grades from Davis, Dickinson had never
received a grade below a B and believed she could meet the terms
of the agreement.
(Id. ¶ 101.)
From November 2010 through February 2011, Dickinson had to
miss class and had to make up work due to the onset of disabling
PCOS symptoms. (Id. ¶¶ 106–22.) She received several grades below
a B for the fall and winter terms.
(Id. ¶¶ 143, 150–51.)
spring term, Dickinson received two grades of B-.
161.)
In the
(Id. ¶¶ 157,
Dickinson alleges that she received these grades below B,
as well as being required to do additional work not required of
other students, as a result of a conspiracy among UNCSA instructors
and administrators to punish her for requesting accommodation of
her PCOS symptoms and to ensure she would not graduate.
¶¶ 164–76.)
(Id.
On May 25, 2011, Dickinson was dismissed from her
program for failing to comply with the terms of the probation
agreement and was not allowed to graduate.
(Id. ¶¶ 162–63.)
On March 28, 2014, Dickinson filed a complaint in a North
5
Carolina Superior Court.
(Doc. 17-1 at 1.)
On April 17, 2014,
she amended her complaint to add Davis as a Defendant.
at 1.)
(Doc. 17
Dickinson names as Defendants UNC and UNCSA, 1 as well as
Colavecchia,
Tilford,
Jones,
and
Davis
collectively
referred
to
the
“Individual
as
(the
latter
Defendants”).
Defendants removed the case to this court on May 21, 2014.
1.)
(Doc.
The complaint seeks injunctive relief, compensatory damages,
punitive damages, attorneys’ fees, and costs.
Five
four
claims
for
discrimination
relief
and
are
asserted:
retaliation
under
(Am. Compl. at 25.)
claims
the
for
ADA;
disability
claims
for
disability discrimination and retaliation under the Rehabilitation
Act; and a state-law claim of tortious interference with contract
under North Carolina law.
Defendants have jointly filed a motion to dismiss under Rules
12(b)(1), 12(b)(2), and 12(b)(6) of the Federal Rules of Civil
Procedure.
(Doc.
12)
Dickinson
Defendants replied (Doc. 20).
II.
responded
(Doc.
17),
and
The motion is ripe for resolution.
ANALYSIS
A.
Sovereign Immunity as to Dickinson’s State-Law Claim
Against the Individual Defendants
Dickinson’s
fifth
claim
for
relief
alleges
tortious
interference with contract against the Individual Defendants in
1
The parties make no distinction between UNC and UNCSA. Therefore,
conclusions as to the validity of claims against UNCSA apply equally to
UNC.
6
both their official and personal capacities.
203–12.)
(Am. Compl. ¶¶ 8,
To the extent this State-law tort claim is made against
these Defendants in their official capacity, Defendants move to
dismiss it on grounds of sovereign immunity pursuant to Rule
12(b)(1).
(Doc. 13 at 10.)
The defense of sovereign immunity is properly addressed under
Rule 12(b)(1).
See Anderson v. United States, 669 F.3d 161, 164
(4th Cir. 2011), certified question answered, 46 A.3d 426 (Md.
2012); cf. Smith v. Wash. Metro. Area Transit Auth., 290 F.3d 201,
205 (4th Cir. 2002) (citing Williams v. United States, 50 F.3d
299, 304 (4th Cir. 1995)).
Ex parte Young, 209 U.S. 123 (1908),
permits certain claims to be brought against a State so long as
they are styled as claims against State officials sued in their
official capacity.
Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 102 (1984).
But the Young “fiction” does not apply “in
a suit against state officials on the basis of state law.”
Id. at
106, 114 n.25.
Dickinson argues only that it is “unclear” whether sovereign
immunity applies to her claim against the Individual Defendants in
their official capacity because “the State cannot claim immunity
from claims based in contract.”
misperceives the issue.
(Doc. 17 at 20.)
It is true that the State is not immune
from suit for contracts it enters into.
413, 424 (N.C. 1976).
Dickinson
Smith v. State, 222 S.E.2d
But Dickinson has styled her fifth cause of
7
action in tort, not contract.
North Carolina is immune from tort
liability, unless it is waived.
168 (N.C. 2013).
White v. Trew, 736 S.E.2d 166,
“The North Carolina Torts Claims Act provides a
limited waiver of immunity and authorizes recovery against the
State
for
negligent
acts
of
its
‘officer[s],
employee[s],
involuntary servant[s] or agent[s].’” Id. (quoting N.C. Gen. Stat.
§ 143–291(a) (2011)).
But suits against the State based on
“intentional acts of these individuals are not permitted.”
Id.
Because tortious interference with contract is an intentional
tort, as Dickinson concedes, see Doc. 17 at 19; Beverage Systems
of the Carolinas, LLC v. Associated Beverage Repair, LLC, 762
S.E.2d 316, 323 (N.C. App. 2014) (requiring that the inducement of
the third person not to perform the contract be intentional),
Dickinson has failed to provide any basis for determining that
North Carolina has waived its sovereign immunity for it.
Thus,
Defendants’ motion to dismiss the fifth claim for relief will be
granted
to
the
extent
Dickinson’s
complaint
alleges
tortious
interference with contract against the Individual Defendants in
their official capacity.
Dickinson also brings her fifth claim for relief against the
Individual Defendants in their personal capacity.
Defendants
argue that a personal capacity claim is “without basis because
these named Defendants are only being sued for acts from their
official capacity, and Plaintiff has failed to allege that these
8
Defendants did anything outside the scope of their job.”
at 10.)
(Doc. 13
In response, Dickinson argues that public officials are
not immune from claims against them in their personal capacity for
the intentional torts they commit.
(Doc. 17 at 19.)
Defendants’ argument in substance is that this personalcapacity claim cannot proceed because Dickinson has not alleged
the
prerequisites
for
holding
a
public
official
individually
liable for acts committed within the scope of his or her duties.
But Defendants have not supported this argument with any analysis
or citation to authority.
Under North Carolina law, a public
official can be held individually liable for damages when the
conduct complained of is malicious or corrupt, as well as when it
is outside the scope of official authority; and a public employee
can be individually liable “for mere negligence in the performance
of
his
governmental
or
discretionary
duties.”
Hunter
v.
Transylvania Cnty. Dep’t of Soc. Servs., 701 S.E.2d 344, 346 (N.C.
Ct. App. 2010).
Here, Dickinson’s amended complaint alleges that
the Individual Defendants acted with legal malice (Am. Compl.
¶
206),
and
alleges
various
facts
to
support
that
charge.
Defendants have not explained how dismissal is appropriate under
applicable North Carolina law.
Dickinson’s
fifth
claim
for
Thus, Defendants motion to dismiss
relief
against
the
Defendants in their personal capacity will be denied.
9
Individual
B.
Personal Jurisdiction
Second, Defendants move to dismiss for want of personal
jurisdiction under Rule 12(b)(2).
(Doc. 12 at 1–2; Doc. 13 at 4.)
But Defendants have presented no argument in support of this
contention.
The
defense
is
therefore
deemed
Defendants’ Rule 12(b)(2) motion will be denied.
7.2(a)(4)
(requiring
arguments);
Local
litigants
Rule
to
7.3(k)
support
waived,
See Local Rule
their
(providing
and
that
motions
a
with
“motion
unaccompanied by a required brief may, in the discretion of the
Court, be summarily denied”).
C.
Failure to State a Claim
Finally, Defendants move to dismiss for failure to state a
claim upon which relief can be granted pursuant to Rule 12(b)(6)
on two grounds: insufficiency of the complaint and the statute of
limitations.
Under Federal Rule of Civil Procedure 12(b)(6), “a complaint
must contain sufficient factual matter . . . to ‘state a claim to
relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
A claim is plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).
A 12(b)(6) motion to dismiss “challenges the legal sufficiency of
10
a complaint considered with the assumption that the facts alleged
are true.”
Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir.
2009) (internal citations omitted).
1.
Punitive Damages
Dickinson’s complaint includes a demand for punitive damages
against the Individual Defendants.
(Am. Compl. at 25.)
The
complaint does not indicate in what capacity these damages are
sought, and Defendants argue that they are only available against
the Individual Defendants in their personal capacity.
concedes this point in her response brief.
Dickinson
(Doc. 17 at 20.)
Thus,
there appears to be no dispute on this issue, and Defendants’
motion to dismiss Dickinson’s punitive damages claim will be
granted except as to the Individual Defendants sued in their
personal capacity as to the fifth claim for relief.
2.
A
defense
Statutes of Limitation
based
on
the
statute
of
limitations
is
an
affirmative defense, which can be the basis of a motion to dismiss
under Rule 12(b)(6).
Dean v. Pilgrim’s Pride Corp., 395 F.3d 471,
474 (4th Cir. 2005).
However, since a Rule 12(b)(6) motion aims
to test the sufficiency of the complaint, and the burden of proving
an affirmative defense rests with a defendant, dismissal under
Rule
12(b)(6)
based
on
the
statute
of
limitations
occurs
in
“relatively rare circumstances.”
Goodman v. Praxair, Inc., 494
F.3d 458, 464 (4th Cir. 2007).
To succeed on a statute-of-
11
limitations defense at this stage, all facts necessary to show the
time bar must clearly appear “on the face of the complaint.”
a.
Id.
ADA and Rehabilitation Act
The parties disagree on what statute of limitations applies
to Dickinson’s ADA and Rehabilitation Act claims. Dickinson argues
that the four-year limitation from 28 U.S.C. § 1658 applies, and
Defendants urge application of the two-year limitation from N.C.
Gen. Stat. § 168A-12.
The determination will be dispositive in
this case, because Dickinson was finally dismissed from UNCSA on
May 25, 2011 (Am. Compl. ¶ 162), and filed her amended complaint
on April 17, 2014.
Thus, her disability discrimination claims are
timely under a four-year statute of limitations, but they are tardy
under a two-year limitations period.
Dickinson’s disability discrimination claims are creatures of
federal law, and thus would ordinarily be subject to the applicable
federal statute of limitations.
However, when Congress enacted
the ADA and Rehabilitation Act, it did not set a limitations
period.
Therefore
courts
must
“borrow
the
state
statute
of
limitations that applies to the most analogous state-law claim.”
A Soc’y Without a Name v. Virginia, 655 F.3d 342, 347 (4th Cir.
2011) (citations omitted).
For Title II of the ADA and Section
504 of the Rehabilitation Act, the most analogous North Carolina
law is the North Carolina Persons with Disabilities Protection
Act,
which
prohibits
disability
12
discrimination
in
public
accommodations, services, and transportation.
See N.C. Gen. Stat.
ch. 168A; McCullough v. Branch Banking & Trust Co., 35 F.3d 127,
130 (4th Cir. 1994).
The applicable statute of limitations for
non-employment claims under this North Carolina law is two years.
N.C. Gen. Stat. § 168A-12; Mary’s House, Inc. v. North Carolina,
976 F. Supp. 2d 691, 699 (M.D.N.C. 2013).
But, in 1990, Congress enacted the Civil Justice Reform Act
of 1990 (“CJRA”), Pub. L. No 101-650, 104 Stat. 5089 (codified in
scattered sections of 28 U.S.C.).
In Section 313 of that Act,
Congress created a general, catch-all statute of limitations of
four years for any “civil action arising under an Act of Congress
enacted after” December 1, 1990.
CJRA § 313, 104 Stat. at 5115
(codified as amended at 28 U.S.C. § 1658); see Jones v. R.R.
Donnelley & Sons Co., 541 U.S. 369, 371 (2004).
In 2004, the
Supreme Court considered whether a federal cause of action for a
violation of a federal statute that existed before December 1,
1990 — but was amended after December 1, 1990 — gets the benefit
of
the
four-year
limitations
period
of
§
1658.
The
Court
unanimously held that “a cause of action arises “‘under an Act of
Congress enacted’
after
December
1,
1990
—
and
therefore
is
governed by § 1658’s 4–year statute of limitations — if the
plaintiff’s claim against the defendant was made possible by a
post–1990 enactment.”
Jones, 541 U.S. at 382.
In this case, both relevant acts of Congress were originally
13
enacted before December 1, 1990.
on July 26, 1990.
L.
No.
101-336,
The ADA was originally enacted
Americans with Disabilities Act of 1990, Pub.
104
Stat.
327.
The
Rehabilitation
originally enacted on September 26, 1973.
1973, Pub. L. No. 93-112, 87 Stat. 355.
Act
was
Rehabilitation Act of
But Congress amended both
of these acts after December 1, 1990.
On September 25, 2008,
Congress enacted the ADA Amendments Act of 2008 (“ADAAA”), Pub. L.
No. 110-325, 122 Stat. 3553.
This act revised the definition of
“disability” for both the ADA and the Rehabilitation Act.
See id.
§ 4, 122 Stat. at 3555; id. § 7, 122 Stat. at 3558 (redefining a
person with a disability for Rehabilitation Act purposes in terms
of the revised definition of disability for the amended ADA).
Under Jones, the statute of limitations that applies to
Dickinson’s first four claims for relief turns on whether her ADA
and Rehabilitation Act claims were “made possible” by the ADAAA’s
revised definition of disability.
Jones, 541 U.S. at 382.
Before
the ADA was amended in 2008, it defined the disability of an
individual, in relevant part, as “a physical or mental impairment
that substantially limits one or more of the major life activities
of such individual.”
ADA § 3(2)(A), 104 Stat. at 329–30 (current
version at 42 U.S.C. § 12102(1)(A)).
further
definition
of
“physical
The act itself contained no
or
mental
“substantially limits,” or “major life activities.”
Before
the
ADAAA’s
enactment,
14
the
federal
impairment,”
See id.
courts
had
interpreted these key terms of the definition of disability.
In
1999, the Supreme Court held that “a person whose physical or
mental impairment is corrected by mitigating measures still has an
impairment,
but
if
the
impairment
is
corrected
‘substantially limi[t]’ a major life activity.”
it
does
not
Sutton v. United
Air Lines, Inc., 527 U.S. 471, 483 (1999), overturned by statute,
ADAAA § 4, 122 Stat. at 3556 (codified at 42 U.S.C. § 12102(4)(E)).
Relying
in
enactment,
part
the
on
Sutton,
Fourth
and
Circuit
ruling
adopted
prior
a
to
the
similarly
ADAAA’s
limiting
construction of “substantially limits”:
[T]he EEOC first asserts that Turpin’s disability can be
established under an “intermittent manifestation” theory
of disability. . . .
Here, the alleged intermittent
manifestation (the seizure) is the disability itself.
To hold that a person is disabled whenever that
individual suffers from an occasional manifestation of
an illness would expand the contours of the ADA beyond
all bounds. An intermittent manifestation of a disease
must be judged the same way as all other potential
disabilities. The statute is explicit — to be disabled
under the ADA, a person must have a substantial
limitation on a major life activity.
EEOC v. Sara Lee Corp., 237 F.3d 349, 352 (4th Cir. 2001).
The following year, in 2002, the Supreme Court echoed the
reasoning of Sara Lee.
In Toyota Motor Manufacturing, Kentucky,
Inc. v. Williams, the Court held that “to be substantially limited
in performing manual tasks, an individual must have an impairment
that prevents or severely restricts the individual from doing
activities that are of central importance to most people’s daily
15
lives.
The impairment’s impact must also be permanent or long
term.”
534 U.S. 184, 198 (2002), abrogated in part by ADAAA § 4,
122 Stat. at 3556 (codified at 42 U.S.C. § 12102(C)–(D)).
Relying
on these statements of the law, the Fourth Circuit explained in
2004 that,
although [plaintiff] appears to be almost completely
incapable of interacting with others during her
episodes, her episodes are sporadic and last, at most,
thirty minutes. During the four months of her employment
with
[defendant],
[plaintiff]
appears
to
have
experienced approximately thirty episodes. Intermittent
manifestations of an illness are insufficient to
establish a substantial limitation on a major life
activity.
Rohan v. Networks Presentations LLC, 375 F.3d 266, 276 (4th Cir.
2004) (citing Sara Lee, 237 F.3d at 352); see also id. at 276 n.18
(“As we explain above, we recognize that Rohan is substantially
incapacitated during her episodes, but these episodes occurred, at
most, slightly more than twice per week on average.
ADA,
the
frequency
of
[plaintiff’s]
episodes
Under the
simply
do
not
establish a substantial limitation, regardless of each individual
episode’s severity.” (citations omitted)).
After passage of the ADAAA, however, these cases no longer
reflect current law.
See Jacobs v. N.C. Admin. Office of the
Courts, No. 13-2212, ___ F.3d ___, 2015 WL 1062673, at *9 (4th
Cir. Mar. 12, 2015) (observing that “[i]n enacting the ADAAA,
Congress abrogated earlier inconsistent caselaw”); Matarese v.
Archstone Pentagon City, 795 F. Supp. 2d 402, 434 n.15 (E.D. Va.
16
2011) (“Both Rohan v. Networks Presentations LLC and EEOC v. Sara
Lee Corp. rely heavily on Supreme Court cases that were expressly
rejected by the 2008 amendments to the ADA.”), aff’d in part,
vacated in part on other grounds sub nom. Matarese v. Archstone
Communities, LLC, 468 F. App’x 283 (4th Cir. 2012) (per curiam).
In
passing
the
ADAAA,
Congress
explicitly
expressed,
in
its
“purposes” section, its disagreement with the Supreme Court’s
interpretations
of
the
ADA
in
Toyota
and
Sutton,
and
applications of those cases by the lower federal courts.
§ 2(b)(2)–(5), 122 Stat. at 3554.
ADAAA
Congress enacted several “rules
of construction” intended to overrule these cases:
The definition of “disability” in paragraph (1) shall be
construed in accordance with the following:
(A) The definition of disability in this Act shall
be construed in favor of broad coverage of individuals
under this Act, to the maximum extent permitted by the
terms of this Act.
(B) The term “substantially limits” shall be
interpreted consistently with the findings and purposes
of the ADA Amendments Act of 2008.
(C) An impairment that substantially limits one
major life activity need not limit other major life
activities in order to be considered a disability.
(D) An impairment that is episodic or in remission
is a disability if it would substantially limit a major
life activity when active.
(E)(i) The determination of whether an impairment
substantially limits a major life activity shall be made
without regard to the ameliorative effects of mitigating
measures such as . . . .
17
the
Id. § 4, 122 Stat. at 3555–56 (codified at 42 U.S.C. § 12102(4));
see also Carmona v. Sw. Airlines Co., 604 F.3d 848, 855 (5th Cir.
2010) (“These amendments would be very favorable to Carmona’s case
if they are applicable, because they make it easier for a plaintiff
with an episodic condition like Carmona’s to establish that he is
an ‘individual with a disability.’”).
Defendants do not attempt to explain how Dickinson’s claims
would have been viable under the ADA and Rehabilitation Act as
they existed before the ADAAA, and it is not entirely clear that
they would have been.
In her complaint, Dickinson alleges that
she suffers from “severe migraine headaches and a disorder known
as Polycystic Ovary Syndrome or PCOS, both of which are completely
disabling.
When symptomatic, the illnesses substantially limit
major functions — including sleeping, eating, walking, standing,
communicating
and
interacting
doing manual tasks.”
with
others,
(Am. Compl. ¶ 16.)
concentrating,
and
The pain from the ovarian
cysts cause Dickinson “debilitating pain that can last for weeks.”
(Id. ¶ 17.)
She has had these conditions from adolescence,
continuing up and through her studies at UNCSA.
(Id. ¶ 18.)
In Rohan, the unsuccessful plaintiff suffered from PTSD and
depression.
375 F.3d at 273.
The Rohan court held that these
medical problems did not establish a substantial limitation on a
major life activity.
Id. at 276.
Despite suffering from totally
disabling episodes that lasted up to thirty minutes, at an average
18
frequency
of
about
one
episode
every
four
days,
Rohan’s
“[i]ntermittent manifestations of an illness [were] insufficient
to establish a substantial limitation on a major life activity.”
Id.
The Rohan court likened the case to the situation in Sara
Lee, where the plaintiff suffered from epilepsy.
Id.
The Sara
Lee court held that the seizure, rather than the epilepsy itself,
was the disability.
237 F.3d at 352.
Despite experiencing life-
long seizures multiple times per week that resulted in physical
injury,
memory
loss,
sleep
loss,
not
to
mention
total
unresponsiveness during the seizure, id. at 351, the court could
not find a substantial limitation on a single, major life activity,
id. at 352–53.
Juxtaposing Sara Lee and Rohan with this case, the court is
not persuaded that Defendants have demonstrated that Dickinson’s
allegations of disability would have been sufficient to state a
claim before the ADAAA, thus requiring application of the two-year
statute
of
limitations.
See
42
U.S.C.
§
12102(4)(D)
(“An
impairment that is episodic or in remission is a disability if it
would substantially limit a major life activity when active.”).
Consequently, the court cannot say that Dickinson’s claims are
barred under the two-year limitations period as a matter of law,
and she is entitled to proceed for now with application of the
four-year statute of limitations of 28 U.S.C. § 1658 because she
19
brought her claims within that window. 2
Defendants’ motion to
dismiss on this ground will therefore be denied.
b.
Tortious Interference with Contract
The statute of limitations for the State-law claim of tortious
interference with contract is three years.
N.C. Gen. Stat. § 1-
52(5); Glynne v. Wilson Med. Ctr., 762 S.E.2d 645, 649 (N.C. Ct.
App. 2014) (applying § 1-52(5)). 3
Dickinson argues that the
limitations period did not begin until May 25, 2011, the day she
was ultimately expelled, under the continuing violation doctrine.
(Doc. 17 at 19.)
In reply, Defendants say nothing about the
applicability of this doctrine.
In North Carolina, the general rule is that a cause of action
“accrues as soon as the right to institute and maintain a suit
arises.”
Williams v. Blue Cross Blue Shield of N.C., 581 S.E.2d
415, 423 (N.C. 2003) (citations omitted).
continuing violations:
An exception exists for
“When this doctrine applies, a statute of
limitations does not begin to run until the violative act ceases.
A continuing violation is occasioned by continual unlawful acts,
2
Whether Dickinson states a plausible claim for relief under the ADAAA’s
changes is considered in Part II.C.3.a, infra.
3
There is conflicting authority from the North Carolina Court of Appeals
as to whether the statute of limitations for tortious interference with
contract is governed by N.C. Gen. Stat. § 1-52(5) or § 1-52(1). See
Philips v. Pitt Cnty. Mem’l Hosp. Inc., 731 S.E.2d 462, 468–69 (N.C. Ct.
App. 2012) (applying § 1-52(1)). The difference is immaterial in this
case since, as all parties agree, both sections apply a three year
limitations period.
20
not by continual ill effects from an original violation.”
Id.
(citations and quotation marks omitted).
Under the Rule 12(b)(6) standard, where dismissal for statute
of limitations is rarely warranted, Defendants have made no effort
to show that the continuing violation doctrine does not apply, and
the court finds that the complaint pleads tortious acts continuing
up to and including her expulsion on May 25, 2011.
Therefore, the
fifth claim for relief will not be dismissed on this ground.
3.
Plausibility
a.
Federal Statutory Claims Against the
Individual Defendants
Defendants argue that Dickinson’s ADA and Rehabilitation Act
claims cannot proceed against the Individual Defendants in either
their official or individual capacity.
(Doc. 13 at 7–8.)
But
Dickinson brings her ADA and Rehabilitation Act claims against the
Individual Defendants in their official capacity only (Am. Compl.
¶ 8), a point Dickinson makes clear in her response brief (Doc. 17
at 15).
Defendants
cite
no
authority
for
dismissing
the
claims
against the Individual Defendants in their official capacity.
Rather, a claim against a “state official in his or her official
capacity is not a suit against the official but rather is a suit
against the official’s office.
As such, it is no different from
a suit against the State itself.”
21
Will v. Michigan Dep’t of State
Police, 491 U.S. 58, 71 (1989) (citation omitted).
Therefore,
dismissal is not warranted on this basis at this time. 4
b.
Disability Discrimination
i.
Dickinson’s
first
ADA
claim
discrimination under the ADA.
for
relief
is
for
disability
Under Title II of the ADA, a claim
for disability discrimination lies where a qualified individual
with a disability is “excluded from participation in or . . .
denied the benefits of the services, programs, or activities of a
public entity, or [is] subjected to discrimination by any such
entity.”
42 U.S.C. § 12132.
A “qualified individual with a
disability” is “an individual with a disability who, with or
without reasonable modifications to rules, policies, or practices,
. . . meets the essential eligibility requirements for the receipt
of services or the participation in programs or activities provided
4
Claims against the Individual Defendants in their official capacity
may be redundant of some or all of the claims against UNC and UNCSA.
See, e.g., Munoz v. Baltimore Cnty., Md., No. CIV.A. RDB-11-02693, 2012
WL 3038602, at *5 (D. Md. July 25, 2012) (“As the Plaintiff has filed
[ADA] claims against Baltimore County, his claims against the individual
supervisors employed by the County in their official capacities are
redundant. Therefore, the Plaintiff’s ADA and Rehabilitation Act claims
against each individual defendant in his official capacity are DISMISSED
WITH PREJUDICE.”); Adams v. Montgomery Coll. (Rockville), 834 F. Supp.
2d 386, 396 (D. Md. 2011) (noting that, since claim against public
community college was valid, there was no need to pursue official
capacity claim against administrators); Fink v. Richmond, No. CIV.A DKC
2007-0714, 2009 WL 3216117, at *4 (D. Md. Sept. 29, 2009) (“Plaintiff
has sued the government agency and the redundant claim against Richmond
in his official capacity should be dismissed if any portion of the
complaint goes forward.”), aff’d, 405 F. App’x 719 (4th Cir. 2010).
Because Defendants have not raised this argument, the court does not
address it at this time.
22
by a public entity.”
42 U.S.C. § 12131(2).
Defendants argue that Dickinson has failed to plead two
required elements of an ADA disability discrimination claim:
(1)
that she was “otherwise qualified to complete the graduate school
program,” and (2) “that she was dismissed from the graduate school
program by reason of her disability.”
(Doc. 13 at 16.)
Defendants’ first argument is inaccurate.
Dickinson has
alleged that, aside from the grades assigned by the Individual
Defendants, she had no grades below a B for any trimester during
her first two years.
Nor had her cumulative or term GPA ever
dropped below a 3.0 during those two years, which is all that was
required to avoid being put on academic probation.
¶ 29.)
(Am. Compl.
Considering Dickinson’s GPA, the “positive feedback” she
received on her portfolios (id. ¶¶ 47, 59), the ability of the
school to extend extra time for projects due to physical disability
(see id. ¶¶ 51–55), Dickinson’s requests for accommodation in the
form of additional time to complete coursework (Id. ¶¶ 168–69),
and UNCSA’s invitation for Dickinson to return for her final year
(id. ¶ 60), the plausible inference is that, with additional time
and without a discriminatory probation agreement, Dickinson could
have completed her assignments.
Defendants’
second
argument
is
equally
unpersuasive.
Dickinson need not plead that she was dismissed directly because
of her disability.
Dismissal from school is but one way to
23
discriminate under Title II.
Discrimination occurs not only when
a disabled student is “excluded from participation” in a public
academic program through expulsion, but also when the student is
“denied the benefits of the services, programs, or activities” of
a college.
42 U.S.C. § 12132.
Dickinson pleads that subjecting
her to unreasonable time demands and a probation agreement lacking
any basis in university policy were discriminatory and ultimately
led to her dismissal.
(Id. ¶¶ 170, 172–73.)
Defendants have
offered no reason why these actions, if true, cannot count as
discrimination.
Therefore, Defendants’ motion to dismiss on this
basis will be denied.
ii.
Dickinson’s
second
Rehabilitation Act
claim
for
relief
discrimination under the Rehabilitation Act.
charges
disability
Section 504 of the
Rehabilitation Act is similar to the ADA, but stricter.
Under
that Act, a claim for disability discrimination lies where an
“otherwise qualified individual with a disability” is “solely by
reasons
of
her
or
his
disability
.
.
.
excluded
from
the
participation in, . . . denied the benefits of, or . . . subjected
to discrimination under any program or activity receiving Federal
financial assistance . . . .”
29 U.S.C. § 794(a).
A “qualified
individual with a disability” is defined the same as it is under
the ADA.
See 29 U.S.C. § 705(20)(B).
Defendants argue that the complaint is insufficient under the
24
Rehabilitation Act because Dickinson fails to plead (1) that she
was otherwise qualified to complete the graduate school program,
and (2) “that she was dismissed from the graduate school program
solely because of her disability.”
(Doc. 13 at 16.)
Both
arguments are unpersuasive.
Argument one fails for the same reasons given above for the
ADA discrimination claim.
As to the second argument, Defendants
are correct that Dickinson never alleges that any of the actions
were taken against her solely because of her disability.
However,
under
such
Twombly
and
Iqbal,
even
if
she
had
had
made
an
allegation, it would not have been accepted as true for purposes
of Rule 12(b)(6) because a plaintiff’s grounds for relief “requires
more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.”
at
555
(citations
omitted).
Yet,
the
facts
Twombly, 550 U.S.
alleged
in
the
complaint make plausible her ultimate claim that she was placed on
academic
probation
because
of
disability
discrimination.
Therefore, Dickinson has pleaded a plausible claim for disability
discrimination
under
the
Rehabilitation
Act,
and
Defendants’
motion to dismiss will be denied.
c.
Retaliation
For her third and fourth claims for relief, Dickinson alleges
retaliation
in
violation
of
the
ADA
and
Rehabilitation
Act,
respectively. To state a claim for retaliation under both of these
25
acts, a plaintiff must “allege (1) that she has engaged in conduct
protected by the ADA; (2) that she 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) (citing Rhoads v. FDIC, 257 F.3d 373, 392 (4th
Cir. 2001)). 5
Although a plaintiff “need not establish that the
conduct she opposed actually constituted an ADA violation,” she
must allege “the predicate for a reasonable, good faith belief
that
the
behavior
(citations omitted).
fails.
she
is
opposing
violates
the
ADA.”
Id.
Defendants argue that Dickinson’s complaint
The court disagrees.
Dickinson alleges that she engaged in conduct protected by
the ADA when she requested accommodations (Am. Compl. ¶¶ 185, 188–
90); that she subsequently suffered adverse action in the form of
destroyed evidence, heightened academic standards, bad grades,
extra work assignments, and expulsion (id. ¶¶ 186–92); and causal
links exist between all her protected conduct and the adverse
actions (id. ¶¶ 185–92).
These allegations are sufficient at this
stage. 6
5
Neither party raises any argument about the standard of the causal
connection required, so the court has not considered it. Cf. Gallagher
v. San Diego Unified Port Dist., 14 F. Supp. 3d 1380, 1385–88 (S.D. Cal.
2014) (discussing effect of Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133
S. Ct. 2517 (2013) on ADA retaliation claims).
6
Defendants also argue that various other matters should have been
26
d.
Tortious Interference with Contract
Tortious interference with contract, Dickinson’s fifth claim
for relief, has five elements under North Carolina law:
(1) a valid contract between the plaintiff and a third
person which confers upon the plaintiff a contractual
right against a third person; (2) defendant knows of the
contract; (3) the defendant intentionally induces the
third person not to perform the contract; (4) and in
doing so acts without justification; (5) resulting in
actual damage to the plaintiff.
Embree Const. Grp., Inc. v. Rafcor, Inc., 411 S.E.2d 916, 924 (N.C.
1992) (citations omitted).
As noted earlier, Dickinson alleges
her fifth cause of action only against the Individual Defendants.
(Am. Compl. ¶ 205.)
Defendants claim the complaint is insufficient in two primary
ways.
First, they argue that Dickinson has not alleged facts
showing a contract between her and UNCSA.
(Doc. 13 at 18.)
This
is incorrect. Dickinson’s complaint alleges that she “had at [sic]
contract with UNC and UNCSA to obtain her graduate degree.”
Compl. ¶ 204.)
suffices.
(Am.
At this stage of litigation, this allegation
See, e.g., Rouse v. Duke Univ., 869 F. Supp. 2d 674,
683 (M.D.N.C. 2012) (“A current student in good standing who is
paying her tuition and other fees would seem to have a contractual
alleged to avoid dismissal. (Doc. 13 at 17–18.) First, it is clear
that several of these arguments are factually inaccurate; for example,
contrary to the Defendants’ arguments, Dickinson did plead that UNCSA
had notice of her disability.
(Am. Compl. ¶ 166.)
Second, none of
these additional “perfunctory” arguments is supported by authority or
explanation, and so none will be considered further. See Hayes, 2014
WL 4198412, at *2.
27
right to return to school, nothing else appearing.”).
Further,
Defendants themselves go on to describe what they believe were the
terms of the contract.
argue
that
Dickinson
(Doc. 13 at 18–19.)
failed
to
allege
Second, Defendants
that
the
Individual
Defendants “intentionally induced UNCSA not to allow [Dickinson]
to complete the graduate school program.”
(Doc. 13 at 19.)
This,
too, is incorrect. Dickinson alleges generally that the Individual
Defendants intentionally induced UNCSA to breach the contract (Am.
Compl. ¶ 206) and enumerates the way each Individual Defendant
acted to do so (id. ¶¶ 207–12).
Therefore, Defendants’ motion to
dismiss the tortious interference claim on this ground will be
denied.
III. CONCLUSION
For the reasons set forth above,
IT IS THEREFORE ORDERED that Defendants’ motion to dismiss
(Doc. 12) is GRANTED as to the fifth claim for relief against the
Individual
Defendants
in
their
official
capacity,
which
is
DISMISSED WITH PREJUDICE, and GRANTED as to Plaintiff’s claim for
punitive damages, which is DISMISSED WITH PREJUDICE, except as
against the Individual Defendants sued in their personal capacity,
which survives. Defendants’ motion to dismiss is otherwise DENIED.
/s/
Thomas D. Schroeder
United States District Judge
March 16, 2015
28
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