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 Complaint of Plaintiff Gail Blackburn ("Blackburn") pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6). (Doc. 29.) GTCC argues that Blackburn has failed to state a claim upon which relief can be granted and that her cause of action under Title I of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., is barred by sovereign immunity. The arguments of the parties have been fully briefed, and the matter is ripe for decision. For the reasons set forth below, the motion is DENIED.
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).) On September 18, 2007, as a result of workplace injuries, 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 squat. (Id. ¶ 8(d).) On December 10, 2007, Blackburn's physician released her to return to work "with restrictions." (Id. ¶ 8(e).) However, GTCC did 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. (Id. ¶¶ 8(f) to 8(i).) 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 functions of her employment position, with or without reasonable accommodations. (Id. ¶¶ 8(j) to 8(1).) Blackburn contends that GTCC 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.
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.
A plaintiff bears the burden of proving this court's subject matter jurisdiction. 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), the court may look beyond the face of the complaint and consider other evidence outside the pleadings without converting the motion to one for 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.
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, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999). With respect to the first exception, Congress explicitly invoked its "power to enforce the fourteenth amendment and to regulate commerce" in the text of the ADA. 42 U.S.C. § 12101(b)(4). 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." 42 U.S.C. § 12202. However, in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (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, 121 S.Ct. 955. 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, 121 S.Ct. 955.
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:
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. It is therefore silent as to whether community college employees in North Carolina are "State employees" under the statute. The parties have not
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." Section 126-5 does not define "State employees," however. Rather, it establishes which employees are covered by or exempted from the State Personnel System ("SPS")-a system of 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." It argues that because section 126-5(c2)(3) specifically 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 exempted from the SPS. Thus, GTCC argues, Blackburn should not be considered a "State employee" contemplated by SEFRRA. 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 plainly states that North Carolina waived its sovereign immunity to ADA claims for all "State employees" except those in certain exempt policy-making positions under N.C. Gen.Stat. § 126-5(d). N.C. Gen.Stat. § 143-300.35(a). GTCC does not argue that 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. Had the General Assembly meant for SEFRRA to apply only to those employees covered under the SPS, moreover, it could have easily and plainly said so. Instead, it only excluded employees in public policy-making 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. See Ayes v. U.S. Dept. of Veterans Affairs, 473 F.3d 104, 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 defined in section 126-5(d), all public school employees, see N.C. Gen.Stat.
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 meaning of N.C. Gen.Stat. § 143-300.35(a). In this respect, the parties' analysis is incomplete. There are several indications, however, 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 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, 112 S.Ct. 1011, 117 L.Ed.2d 181 (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 for any other reasonable construction.'" Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 53 L.Ed. 742 (1909)).
First, SEFRRA provides expressly that sovereign immunity is waived for the limited purpose of "allowing State employees... 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 specified federal employment laws. N.C. Gen.Stat. § 143-300.35(a) (emphasis added). The reference to 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. ch. 115D. The purpose of chapter 115D is "to provide for the establishment, organization, and administration of a system of educational institutions throughout the State...." N.C. Gen.Stat. § 115D-1. Indeed, section 115D-23 even refers to community college employees 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." N.C. Gen.Stat. § 115D-3. North Carolina law treats community colleges as a department of the State government. See Davis v. Cent. Piedmont Cmty. Coll., No. 3:07-cv-424-RJC, 2008 WL 5120616, 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
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 basis, was immune from suit.
Third, the Office of State Personnel ("OSP"), the administrative agency established to implement the SPS, 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 Chapter." 25 N.C. Admin. Code 1A.0003(5) (emphasis added). Community college employees are subject to both Article 14 and Article 15 of the SPS. See N.C. Gen.Stat. §§ 126-5(c5), (c6). 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:
Neither GTCC nor Blackburn has indicated whether Blackburn contributes to the Teachers' and State Employee' Retirement System, but community college employees are eligible to do so. See N.C. Gen.Stat. § 115D-22. Another example is N.C. Gen. Stat. § 143-300.2, which 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." See N.C. Gen.Stat. § 143-300.3. The statute defines the "State" to include "community 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).
Fifth, GTCC's reliance on portions of section 126-5 that refer separately to "State employees" and "community college employees" ignores the structure of that statute. 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 clearly do not fall within any defined group in sections 126-5(a)(2) or (3). The statute's subsequent listing of exemptions, including the express exemption of "[e]mployees of community colleges,"
Sixth, the provisions of section 126-5 upon which GTCC relies to argue that the SPS distinguishes between "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 for retaliation for reporting certain acts of wrongdoing. N.C. Gen. Stat. § 126-84. Article 15 prohibits the limitation on "[a] State employee's right to speak to a member of the General Assembly at the member's request." N.C. Gen. Stat. § 126-90. Thus, both Articles address rights of "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 vested in the Board of Governors are generally exempted from the SPS. N.C. Gen.Stat. § 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 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" under SEFRRA and further intended to include employees of community colleges within the meaning of the waiver.
The Second Amended Complaint alleges that Blackburn was "hired" by GTCC and was employed as a housekeeper; otherwise, it does not provide the terms of her employment.
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, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (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).
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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), abrogated on other grounds by Twombly, 550 U.S. 544, 127 S.Ct. 1955), a plaintiff's obligation "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do," id. 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, 127 S.Ct. 1955; see Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-51, 173 L.Ed.2d 868 (2009).
Employment discrimination claims carry no heightened pleading standard, see Twombly, 550 U.S. at 569-70, 127 S.Ct. 1955, 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, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). Yet the Fourth Circuit has not interpreted Swierkiewicz as 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 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 on work restrictions by her physician and that she engaged in a "self-initiated opposition to a lack of accommodation in not being placed in some other `suitable' position." (Doc. 30 at 10.) Blackburn contends that she has sufficiently alleged a "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 other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a).
The ADA defines "disability" as "(A) a physical or mental impairment that substantially limits one or more major life activities of [the] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(1).
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). Thus, she proceeds only on her "regarded as" claim. Moreover, the court previously addressed and rejected GTCC's argument that Blackburn's allegations that GTCC regarded her to be disabled were insufficient, id. at 663-64, and the court will not revisit that ruling here.
GTCC argues that Blackburn's allegation that she could perform the essential functions of her position despite her work restrictions is merely a "bare assertion" devoid of factual support. (Doc. 30 at 12.) 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 repetitively—render implausible her "conclusory" allegation that she could perform the essential functions of her job as housekeeper. Finally, it argues, Blackburn's contention that she was "qualified" is further undermined by her allegations that 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." 42 U.S.C. § 12111(8). "Essential functions" means "the fundamental job duties of the employment position the individual with a disability holds or desires" and "does not include the marginal functions of the position." 29 C.F.R. § 1630.2(n)(1). A job function may be "essential" for various 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. Id. § 1630.2(n)(3)(i), (iii). Further, "[a] plaintiff 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 Fed.Appx. 49, 57 (4th Cir.2002) (unpublished opinion).
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 her to return because it perceived her to be disabled. (Doc. 28-1 ¶¶ 8(b), 8(d) to 8(f).) She has also 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 case law requiring this at this stage.
Contrary to GTCC's argument, Blackburn's allegation that she could perform "modified duties" of a "regular job" (Doc. 28-1 ¶ 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" of her job ultimately requires a detailed factual inquiry, which ordinarily would be decided on a factual record.
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),
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)). The court cannot determine as a matter of law that her claimed 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 above the speculative level, even if only marginally so. Whether she can prove her claim remains for another day.
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 of Civil Procedure 12(b)(1), 12(b)(2) and 12(b)(6) (Doc. 29) is DENIED.
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.
