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finding that the plaintiff's wrongful discharge claim brought pursuant to the NCEEPA against the state actor-defendants was barred by the Eleventh Amendment
Summary of this case from Howell v. N.C. Cent. Univ.Opinion
1:02CV224
September 2, 2003
MEMORANDUM OPINION
I. INTRODUCTION
This matter comes before the Court on Defendant University of North Carolina at Chapel Hill ("UNC-CH" or the "University") and Lawrence I. Gilbert's ("Gilbert") Motion to Dismiss the Amended Complaint, pursuant to Rule 12(b)(1), 12(b)(2), and 12(b)(6) of the Federal Rules of Civil Procedure [Document #8]. For the following reasons, Defendants' Motion to Dismiss will be GRANTED entirely and Plaintiff Ji-Da Dai's ("Plaintiff" or "Dai") Amended Complaint [see Document #6] will be DISMISSED.
It should be noted that the Amended Complaint is not a document originally filed in this Court. Rather, because the case was removed to this Court, the Amended Complaint was attached to Defendants' Notice of Removal [Document #6].
II. FACTUAL AND PROCEDURAL BACKGROUND
In this action Dr. Ji-Da Dai, a 58 year old man of Chinese origin, has filed a seven count suit against the University of North Carolina at Chapel Hill and Dr. Lawrence I. Gilbert, Professor of Biology, in his individual and official capacity. Specifically, Count I of the Complaint alleges a violation of Title VII of the Civil Rights Act of 1964 solely against UNC-CH; Count II alleges a violation of the North Carolina Equal Employment Practices Act, N.C. Gen. Stat. § 143-422.1 et seq. ("NCEEPA"), solely against UNC-CH; Count III alleges a violation of 42 U.S.C. § 1981 solely against UNC-CH; Count IV alleges a Breach of Contract solely against UNC-CH; Count V alleges Intentional Infliction of Severe Emotional Distress against both UNC-CH and Gilbert; Count VI alleges Negligent Infliction of Emotional Distress against both UNC-CH and Gilbert; and Count VII alleges a violation of 42 U.S.C. § 1983 against both UNC-CH and Gilbert. (See Mot. to Dismiss Amended Complaint, Exh. 1, ¶¶ 31-78 (hereinafter "Am. Compl.").)
Following his graduation in 1991 with a Doctorate Degree in Biology from UNC-CH, Plaintiff took employment with UNC-CH as a Research Associate. (Am. Compl. ¶ 7.) In 1992 he was appointed as a Research Assistant Professor with the Department of Biology at UNC — CH. (Id. 8.) Then, in 1994, he was appointed as a Research Associate Professor, a position which he held until the termination of his professional relationship with UNC-CH in 2000. (Id.) Plaintiff alleges that he was under Gilbert's supervision throughout Plaintiff's professional relationship with UNC-CH. (Id. ¶ 9.)
Around May 1999, Dai signed his employment contract with UNC-CH for a term of three years effective from July 1, 1999 through June 30, 2002. (Id. ¶ 10.) When Plaintiff Dai signed his contract, he was aware that the continuation of his contract and his salary, $31,780, were both contingent upon the availability of grant funding for Gilbert's research projects, which was the sole source of funding for Dai's salary. (Am. Compl. ¶ 10; Dr. Alan Feduccia Aff., Exh. 1.)
Soon after Dai signed his contract, he informed Gilbert that he would no longer perform "personal services" for him. (Am. Compl. ¶ 13.) In the past, Dai had cleaned Gilbert's home, performed yard work and provided rides for him. (Feduccia Aff., Exh. 3 and Dunbar Aff., Exh. 1.) Also, during a series of conversations with Gilbert, Dai raised concerns that he felt that he was being underpaid in comparison to his American counterparts and questioned why he was not chosen to attend international and national workshops like others in the Biology Department. (Am. Compl. ¶¶ 13-14.) According to Dai, the response from Gilbert was that Dai's American counterparts had better English, were younger, and could learn new things. (Id. ¶ 14.)
In early August 1999, Gilbert informed Plaintiff in a handwritten note that Plaintiff's services would no longer be required by the Biology Department due to non-availability of funds. (Id. ¶ 16.) On August 18, 1999, Dai received formal typewritten notification that Gilbert's inability to obtain continuation of a major grant would mean that funds necessary to support Dai's salary would no longer be available after December 31, 1999. (Id. ¶ 17; Mot. to Dismiss Am. Compl., Exh. 4.) This letter effectively terminated Dai's employment with UNC-CH.
Following his termination, Dai filed a grievance with the University's Faculty Grievance Committee (the "Committee"). (Am. Compl. ¶ 19.) In Dai's grievance, he alleged that Gilbert had discriminated against him on the basis of age and national origin when Gilbert terminated his employment contract for lack of funds. (Dunbar Aff., Exh. 1.) The Committee found that Dai's allegations were unsupported by substantial and credible evidence. (Dunbar Aff, Exh. 1.) The Committee, however, found that the Department of Biology did not make "every reasonable effort" to provide twelve months notification of termination to Dai, as it was obligated to do by the Code of the University of North Carolina when terminating an employee because of the failure of the continuation of funds, where such an employee, like Dai, had two or more years of continuous service. (Dunbar Aff., Exh. 1.) The Committee concluded that the Department of Biology had to make every reasonable effort to find funds for Plaintiff's salary so as to ensure twelve months notice of termination to Dai from the time the Department had notified him of its termination decision. (Dunbar Aff., Exh. 1.)
Once the Committee issued its findings and recommendations, Dr. Alan Feduccia, Chair of the Department of Biology, declined to accept the Committee's recommendation concerning obtaining funding to ensure twelve months notice of termination to Dai. (Feduccia Aff. ¶¶ 7, 8.) Following the Committee's recommendations and Dr. Feduccia's rejection, the Interim Chancellor of UNC-CH reviewed the report and agreed with the Committee's recommendations with one exception, which was that the Biology Department did not have to procure funds from other areas to support Dai's salary for twelve months notice. (Feduccia Aff. ¶ 8 Exh. 4.) Instead, it was decided that only funds from those sources that were appropriate for Dai's salary had to be used. (Id.) Dr. Feduccia only found resources to pay Dai six months additional salary from January 1, 2000 through June 30, 2000. (Feduccia Aff. ¶ 9.)
Thereafter, Dai appealed to the University's Board of Trustees ("Board of Trustees"). The Board of Trustees agreed with the Interim Chancellor's recommendations. However, the Board of Trustees recommended that Dai be paid an additional six months salary which now provided him with the salary equivalent of twelve months notice of termination, as he was entitled under the Code of the University of North Carolina. (Feduccia Aff., Exh. 6.) Finally, Dai appealed the Board of Trustees' decision to the Board of Governors who sustained the institutional decision and dismissed Dai's appeal. (Feduccia Aff., Exh. 7.)
After Dai exhausted all the University's avenues of recourse, he then filed a discrimination charge with the Equal Employment Opportunity Commission in May 2001. (Mot. To Dismiss Am. Compl., Exh.4.) The investigator with the Equal Employment Opportunity Commission wrote Dai informing him that his charge of discrimination would be dismissed for lack of jurisdiction due to untimeliness. (Mot. to Dismiss Am. Compl., Exh. 6.)
Plaintiff then filed his original Complaint in this matter in the Superior Court of Orange County, North Carolina on February 19, 2002. The University of North Carolina at Chapel Hill, which was then the only named Defendant, timely removed the action to this Court on March 25, 2002. On the same day, Plaintiff filed his Amended Complaint in the Superior Court of Orange County, which added Dr. Gilbert as a named defendant. The Amended Complaint filed in the Orange County Superior Court is now the document that sets forth the nature of this action. Currently before the Court is Defendants' Motion to Dismiss Amended Complaint [Document #8]. The Court will address Defendants' Motion to Dismiss as it relates to each of Plaintiff's claims in the order in which those claims are presented in the Amended Complaint.
III. DISCUSSION
A. Standard of Review
When deciding a Rule 12(b)(6) motion, the Court reviews the plaintiff's complaint using a relaxed standard, "accepting all well-pleaded allegations in the plaintiff's complaint as true and drawing all reasonable factual inferences from those facts in the plaintiff's favor. . . ." Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Accordingly, dismissal is only appropriate when it is "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46,78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). Relying on these principles, the Court now reviews Defendants' Motion to Dismiss.
B. Count I — Title VII of the Civil Rights Act of 1964, Defendant UNC-CH
The basic allegation of Count I is that "[b]y engaging in and/or condoning . . . discriminatory acts, practices and conduct . . . UNC has condoned and/or failed to prevent the maintenance of a racially discriminatory work environment, discriminated against Plaintiff in the terms and/or conditions of his employment on the basis of his race and national origin. . . ." (Am. Compl. ¶ 32.) Defendant UNC-CH asserts that this claim is barred by the applicable statute of limitations. Plaintiff has offered no response to this argument.
Title VII establishes an elaborate administrative process, requiring the expeditious filing of a charge of discrimination and the prompt consideration of the charge by the EEOC. See 42 U.S.C. § 2000e-5 et seq. Aggrieved persons must file a complaint with the EEOC "within one hundred and eighty days after the alleged unlawful employment practice occurred. . . ." 42 U.S.C. § 2000e-5(e)(1). The Fourth Circuit has held that this statutory language is "clear and unambiguous" and that the limitations period starts "from the time the alleged unlawful practice occurred, not from the time that the employee discovered its discriminatory nature." Hamilton v. 1st Source Bank, 928 F.2d 86, 87-88 (4th Cir. 1990) (en bane) (quotation omitted). Similarly, the filing limitations period begins as of the date the employee receives notice of the allegedly discriminatory act even though the effects of that act may not occur until later. See Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980) ("In sum, the only alleged discrimination occurred — and the filing limitations periods therefore commenced — at the time the tenure decision was made and communicated to Ricks. That is so even though one of the effects of the denial of tenure — the eventual loss of a teaching position — did not occur until later." (emphasis in original)).
In the present case, the discriminatory act occurred, at the latest, on August 18, 1999 when Gilbert formally notified Dai that his appointment would be terminated. This event was "a discrete act, and it was of such an obvious nature to plaintiff that it should have put him on notice that his rights were at stake." Faix v. Moen. Inc., 935 F. Supp. 726, 731 (E.D.N.C. 1996). Thereafter, Plaintiff had until February 15, 2000, to file his EEOC charge. Plaintiff greatly exceeded this deadline by failing to file his EEOC charge until May 8, 2001. Thus, Plaintiff's Title VII claim against Defendant UNC-CH is plainly barred by the statute of limitations.
When he ultimately filed his untimely charge with the EEOC, Plaintiff identified August 18, 1999, as both the earliest date and the latest date on which discrimination took place. (See Mot. to Dismiss Am. Compl., Exh.4.)
Accordingly, Plaintiff can prove no set of facts which would entitle him to relief on this claim and the Court will therefore grant Defendants' Motion to Dismiss the Amended Complaint as to Count I.
The fact that Plaintiff filed a grievance concerning his termination did not toll the commencement of the 180-day limitations period. The beginning of the limitations period for filing a Title VII charge was triggered by the date Dai learned his appointment would be terminated, not by the date he learned of the final outcome of his grievance. See Ricks, 449 U.S. at 259-61, 101 S.Ct. at 504-06 (rejecting professor's argument that EEOC limitations period was tolled pending his receipt of notice of outcome of grievance).
C. Count II — NCEEPA, N.C. Gen. Stat. § 143-422.1, Defendant UNC-CH
Defendant UNC-CH asserts that NCEEPA does not provide for a private cause of action upon which relief may be based. The University contends that "[t]he statute merely declares that discrimination in employment is against the public policy of the State of North Carolina, without providing a remedy for the policy's violation." (Mem. in Supp. of Defs' Mot. to Dismiss Am. Compl., at 19.) As with Count I, Plaintiff provides no response to this argument.
North Carolina General Statute § 143-422.2, entitled "Legislative declaration," states:
It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees.
It is recognized that the practice of denying employment opportunity and discriminating in the terms of employment foments domestic strife and unrest, deprives the State of the fullest utilization of its capacities for advancement and development, and substantially and adversely affects the interests of employees, employers, and the public in general.
In the time since the parties filed their pleadings addressing Defendants' Motion to Dismiss, the Fourth Circuit handed down its decision in McLean v. Patten Communities. Inc., 332 F.3d 714 (4th Cir. 2003). Contrary to UNC-CH's argument regarding N.C. Gen. Stat. § 143-422.2, the McLean case held that "when the record indicates, as it does in this case, that [the plaintiff's] separation may have been caused because of her race, we are of [the] opinion and hold that she has stated a cause of action under the state law of North Carolina under § 143-422.2." McLean, 332 F.3d at 721. The McLean court explained that the cause of action stated by the statute is a common law claim of wrongful discharge and the court therefore "remanded [the case] for consideration of the claims of the plaintiff for wrongful discharge on account of sex or race, either or both, under § 143-422.2." Id. In reaching this conclusion, the Fourth Circuit also stated that "while North Carolina may require that the discharge violate public policy, it may not also require that there be no remedy available to protect the interest of the aggrieved employee or society because the courts of North Carolina cannot fail to provide a forum to determine a valid cause of action." Id. at 720-21 (quotation omitted). Thus, as this Court has recently held, N.C. Gen. Stat. § 143-422.2 can be applied to allow a plaintiff to bring a common law claim for wrongful discharge. See Arbia v. Owens-Illinois. Inc., 2003 WL21297330, at *8 (M.D.N.C. June 4, 2003) (finding that "[w]hen liberally construed, Plaintiff, acting pro se, alleges that she was discharged in violation of North Carolina's public policy against disability discrimination as set out in NCEEPA. N.C. Gen. Stat. § 143-422.2. Therefore, Plaintiff has sufficiently stated a wrongful discharge claim under NCEEPA to survive a motion to dismiss. . . .").
Although unpublished and therefore not binding on the State's courts, a recent decision of the North Carolina Court of Appeals indicates that the North Carolina courts are in harmony with this conclusion, at least in terms of final outcome. In Bendross v. Town of Huntersville, 582 S.E.2d 726 (Table), 2003 WL 21649354 (N.C.App. July 15, 2003), the plaintiff "base[d] her claim for sexual discrimination on N.C. Gen. Stat. §§ 143-422.1 et seq.. . . ." Bendross, 2003 WL 21649354, at **3. The court of appeals noted that while North Carolina state courts "have not expressly addressed the issue . . ." of whether a private cause of action exists under this statute, "federal courts applying the statute have held that no statutory remedy exists." Id. TheBendross opinion did not mention the Fourth Circuit's McLean decision, but it did quote from the Fourth Circuit's earlier language in Smith v. First Union Nat. Bank, 202 F.3d 234 (4th Cir. 2000), which McLean later relied upon, stating that "`most courts have applied the NCEEPA only to common law wrongful discharge claims or in connection with other specific statutory remedies.'" Id. (quoting Smith, 202 F.3d at 247). The Bendross court then concluded, "[a]ccordingly, we will treat plaintiff's first cause of action as a common law claim for wrongful discharge." Id. Thus, the North Carolina Court of Appeals did not actually hold, as the Fourth Circuit did, that a plaintiff may "state a cause of action under the state law of North Carolina under § 143-422.2," McLean, 332 F.3d at 721, but reached the same result by concluding, just as the Fourth Circuit did, that a claim under that statute could be "treat[ed] . . . as a common law claim for wrongful discharge." Bendross, 2003 WL 21649354, at **3.
Nevertheless, although neither side raises the issue, the Court finds that Plaintiff's NCEEPA claim in the present case is barred by the Eleventh Amendment to the United States Constitution. Unlike the defendant in McLean and the defendants in each case that McLean relied upon, both Defendants in the present case are state actors. Plaintiff alleges that "UNC's final decision was designed to and indeed did ratify and/or condone Dr. Gilbert's conduct, which is violative of N.C.G.S. § 143-422.2 . . .," and he seeks to "recover back pay and compensatory damages from UNC . . ." as a result. (Am. Compl. ¶ 43, 47.) A claim such as this which alleges that state officials violated state law in carrying out their official responsibilities is exactly the sort of claim from which states are granted immunity by the Eleventh Amendment. Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 121, 104 S.Ct. 900, 919, 79 L.Ed.2d 67 (1984) ("[A] claim that state officials violated state law in carrying out their official responsibilities is a claim against the State that is protected by the Eleventh Amendment."). Specifically, claims brought directly in federal court that allege violations of federal rights are barred when a plaintiff seeks to collect monetary damages from the state, as does Dai in the present case. Id. at 120, 104 S.Ct. at 918 (citing Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) ("[T]he federal court is barred from awarding damages against the state treasury even though the claim arises under the [United States] Constitution."). The Eleventh Amendment constitutional bar "applies as well to state-law claims brought into federal court under pendent jurisdiction," such as Plaintiff's NCEEPA claim. Id. at 121, 104 S.Ct. at 919.
Although Defendants do not directly argue that the Eleventh Amendment gives them immunity from a wrongful discharge claim, they do contend, in the context of Plaintiff's infliction of emotional distress claims, that "the State of North Carolina has not waived its sovereign immunity from suit . . . on any tort claim. . . ." (Defs' Reply to PL's Opp'n to Defs' Mot. to Dismiss Am. Compl., at 3.) As will be discussed in the text below, because North Carolina has indeed retained sovereign immunity in its own courts from tort claims, the State is likewise entitled to Eleventh Amendment immunity when common law ton claims, such as wrongful discharge, that seek monetary damages are brought into federal court through pendent jurisdiction.
Here, a judgment against UNC-CH, an agency of the State, would be a judgment against the State. Huang v. Bd. of Governors of Univ. of North Carolina, 902 F.2d 1134, 1138 (4th Cir. 1990) ("Eleventh Amendment bars a suit by private parties to recover money damages from the state or its alter egos acting in their official capacities."). Until recently, a state could waive the protection of the Eleventh Amendment only by unequivocal state statute or state constitutional provision. See e.g. Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1360-61, 39 L.Ed.2d 662 (1974) ("In deciding whether a State has waived its constitutional protection under the Eleventh Amendment, we 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." (quotation omitted)). With regard to state common law claims, however, Eleventh Amendment immunity has been somewhat limited byLapides v. Bd. of Regents, of Univ. Sys. of Georgia, 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002). There the Supreme Court held that Georgia's Attorney General, by removing Lapides' lawsuit to federal court, had waived the State's Eleventh Amendment immunity from suit in federal court on Lapides' state tort claims. Lapides, 535 U.S. at 624, 122 S.Ct. at 1646. In so holding, however, the Court plainly stated that "we must limit our answer to the context of state-law claims, in respect to which the State has explicitly waived immunity from state-court proceedings," and that the opinion would not "address the scope of waiver by removal in a situation where the State's underlying sovereign immunity from suit has not been waived or abrogated in state court." Id. at 617-18, 122 S.Ct. at 1643.
Here, unlike the State of Georgia in Lapides, North Carolina has not waived its underlying sovereign immunity from suit for common law tort claims in its own state courts. Rather, the legislative intent in North Carolina is that "all tort claims against UNC and its constituent institutions for money damages be brought before the North Carolina Industrial Commission." Jones v. Pitt County Memorial Hosp., 104 N.C. App. 613, 617, 410 S.E.2d 513, 515 (1991). After that, the correct procedure for seeking review of an administrative decision is to file a petition in the court "explicitly stat[ing] what exceptions are taken to the [administrative] decision," N.C. Gen. Stat. §§ 150B-45, 46, and not by filing a civil action. See Huang v. North Carolina State Univ., 107 N.C. App. 710, 713-14, 421 S.E.2d 812, 814 (1992) ("[T]hose who have grievances with the University have available only those administrative remedies provided by the rules and regulations of the University and must exhaust those remedies before having access to the courts."). Thus, North Carolina requires administrative exhaustion before recourse to its courts can be sought on common law tort claims.
Accordingly, Lapides does not apply here because the State of North Carolina has not waived its sovereign immunity from suit in its own courts on tort claims but, rather, requires administrative exhaustion before recourse to the courts can be sought. Therefore, Defendants' removal of Plaintiff's NCEEP A-based common law wrongful discharge tort claim to federal court does not constitute a waiver of the State's Eleventh Amendment immunity. The Court therefore finds that Plaintiff's Count II, which is in essence a common law wrongful discharge claim against Defendant UNC-CH, is jurisdictionally barred by the Eleventh Amendment and will, accordingly, grant Defendants' Motion to Dismiss the Amended Complaint as to this Count.
D. Count III — 42 U.S.C. § 1981, Defendant UNC-CH
Defendant UNC-CH argues (1) that the Eleventh Amendment bars this claim for monetary damages against the State and its officials, and (2) that 42 U.S.C. § 1983 is the exclusive federal remedy for the violation of rights guaranteed by 42 U.S.C. § 1981 when the claim is brought against state actors. Here again, Plaintiff has failed to respond to these arguments.
The Court need not devote extensive discussion to this claim because the United States Supreme Court has plainly held "that the express action at law provided by § 1983 for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, provides the exclusive federal damages remedy for the violation of the rights guaranteed by § 1981 when the claim is pressed against a state actor." Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735, 109 S.Ct. 2702, 2723, 105 L.Ed.2d 598 (1989) (quotation omitted). Therefore, as a matter of law, Plaintiff can have no remedy against UNC-CH pursuant to § 1981. Accordingly, the Court will grant Defendants' Motion to Dismiss the Amended Complaint as to Count III.
It is worth noting that the Fourth Circuit has clarified that the vitality of this portion of the Jett holding was not affected by the Civil Rights Act of 1991, which added an additional subsection to § 1981. Dennis v. County of Fairfax, 55 F.3d 151, 156 n. 1 (4th Cir. 1995).
E. Count IV — Breach of Contract, Defendant UNC-CH
Defendant UNC-CH argues that all claims brought against it under the common law of North Carolina are subject to dismissal from this court because federal courts are barred from considering claims that state officials violated state law. Yet again, Plaintiff offers no response to this argument.
As discussed above, the Eleventh Amendment does indeed act as a constitutional bar that applies to state-law claims brought into federal court under pendent jurisdiction. Pennhurst, 465 U.S. at 121, 104 S.Ct. at 919. Here, just as with common law tort claims, North Carolina passes the Lapides test. North Carolina has not waived its sovereign immunity from suit in state court on a breach of contract claim, where the plaintiff has not previously exhausted available administrative remedies. North Carolina law provides that, because the legislature has provided an effective administrative remedy to those aggrieved by a final agency decision in a contested case, that remedy is exclusive and its relief must be exhausted before recourse to the courts can be sought. Huang, 107 N.C. App. at 713-14, 421 S.E.2d at 814.
Accordingly, Lapides does not apply because the State of North Carolina has not waived its sovereign immunity from suit in its own courts on breach of contract claims but, rather, requires administrative exhaustion before recourse to the courts can be sought. Therefore, Defendants' removal of Plaintiff's breach of contract claim to federal court does not constitute a waiver of the State's Eleventh Amendment immunity. Thus, Plaintiff's state common law breach of contract claim is jurisdictionally barred from consideration in this Court based upon immunity provided by the Eleventh Amendment. The Court will therefore grant Defendants' Motion to Dismiss the Amended Complaint as to Count IV.
F. Count V — Intentional Infliction of Emotional Distress, Defendants UNC-CH and Gilbert
Count VI — Negligent Infliction of Emotional Distress, Defendants UNC-CH and Gilbert
Because they are closely related, the Court will address Plaintiff's claims for Intentional and Negligent Infliction of Emotional Distress within the same section. Turning first to the Intentional Infliction claim, Defendants argue that Dai has failed to sufficiently allege conduct which rises to the level necessary to support such a claim. Plaintiff responds by simply relying on the Rule 12(b)(6) standard and citing a Fifth Circuit case which summarizes this standard by stating that a "plaintiff need not set forth all the facts upon which the claim is based; rather, a short and plain statement of the claim is sufficient if it gives the defendant fair notice of what the claim is and the grounds upon which it rests." Mann v. Adams Realty Co., Inc., 556 F.2d 288, 293 (5th Cir. 1977). Plaintiff also relies on Baird v. Rose, 192 F.3d 462 (4th Cir. 1999), which, according to Plaintiff, "held that the extreme and outrageous character of the conduct may arise from an abuse by the actor of a position which gives him actual authority over the other." (PL's Mem. In Opp'n to Defs' Mot. to Dismiss Am. Compl., at 10.)
In North Carolina, "[t]he essential elements of an action for intentional infliction of emotional distress are 1) extreme and outrageous conduct by the defendant 2) which is intended to and does in fact cause 3) severe emotional distress." Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992) (quotation omitted). To satisfy the first element's required showing that the conduct was extreme and outrageous, it must be "`so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. . . .`"Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 493, 340 S.E. 116, 123 (1986). cert. denied 317 N.C. 334, 346 S.E.2d 140 (1986) (quoting Restatement (Second) of Torts § 46 cmt. (d) (1965)). This determination is a question of law, Lenins v. K-Mart Corp., 98 N.C. App. 590, 599, 391 S.E.2d 843, 848 (1990), and "`[r]arely will conduct in the employment context rise to the level of outrageousness necessary to provide a basis for recovery for the tort of intentional infliction of emotional distress.'" Swaim v. Westchester Academy. Inc., 170 F. Supp.2d 580, 584 (M.D.N.C. 2001) (quoting Wilson v. Southern Nat'1 Bank of North Carolina, 1996 WL 445088, at **5 (4th Cir. Aug. 8, 1996) (unpublished)).
The Court finds that, as a matter of law, the allegations contained in Plaintiff's Amended Complaint, even if presumed true and taken as a whole, are insufficient to set forth a claim for intentional infliction of emotional distress. While Plaintiff is correct that survival of a motion to dismiss "does not require a claimant to set out in detail the facts upon which he bases his claim," it is also true that a plaintiff must "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swaim v. Westchester Academy, Inc., 170 F. Supp.2d 580, 584 (M.D.N.C. 2001) (quotations omitted). At its base, "[a] motion to dismiss tests the legal sufficiency of the plaintiff's complaint." Id., at 583. Here, Plaintiff's intentional infliction of emotional distress claim is based on Gilbert's alleged discriminatory acts of: 1) failing to pay Dai the same as "American" employees; 2) requesting that Dai perform manual tasks around his home, drive him places, and run errands for him; 3) threatening to "blacklist" Dai in the scientific community, and 4) terminating Dai's employment — all on the basis of Dai's national origin. Dai also alleges that, in response to his inquiry of why he was not sent to international and national workshops like other employees, Gilbert responded that they had better English and were younger and could therefore learn new things. These allegations are insufficient because the grounds upon which they rest are not, as a matter of law, so outrageous in character and extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Therefore, the Court finds that Plaintiff can prove no set of facts which would entitle him to relief on this claim and will therefore grant Defendants' Motion to Dismiss the Amended Complaint as to Plaintiff's claim for intentional infliction of emotional distress in Count V.
Plaintiff's reliance on Baird v. Rose, 192 F.3d 462 (4th Cir. 1999), is incomplete. In Baird, Plaintiff is correct that the Fourth Circuit recognized the viability, albeit in applying Virginia's law of intentional infliction of emotional distress, of a claim for that tort where `"[t]he extreme and outrageous character of the conduct may arise from an abuse by the actor of a position which gives him actual authority over the other. . . .'" Baird. 192 F.3d at 472 (quoting Restatement (Second) of Torts § 46 cmts. e, f (1965)). However, Plaintiff omitted the second half of that sentence which states that "`conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face of knowledge' of special susceptibility." Id. There is no indication that Plaintiff had any special susceptibility such as there was in Baird where the defendant was a teacher who "intentionally attempted to humiliate Baird, a child, knowing that she was suffering from clinical depression."Id. Therefore, even if actual authority creates a heightened standard for the tort of intentional infliction of emotional distress under North Carolina law in the same manner as it does under Virginia law — which Plaintiff has not shown — then such a standard would still be inapplicable because Plaintiff has not alleged that he had some special susceptibility which Gilbert had knowledge of and proceeded in the face of.
Turning to Plaintiff's claim for negligent infliction of emotional distress, Defendants argue that Plaintiff bases this claim solely upon Gilbert's allegedly discriminatory acts and that, since discrimination is by definition intentional conduct, these intentional acts cannot serve as the basis for a negligent infliction claim. Plaintiff does not respond to this argument. Defendants' argument is directly supported by Thomas v. Northern Telecom. Inc., 157 F. Supp.2d 627, 637 (M.D.N.C. 2000) (citingMitchell v. Lydall. Inc., 1994 WL 38703, at **3 (4th Cir. Feb. 10, 1994) (unpublished)). As the Thomas court stated, "[l]ike the plaintiff in [theMitchell] case, Plaintiff Thomas's allegations in this case charge nothing but intentional acts by Defendant. Therefore, Plaintiff fails to state a claim for negligent infliction of emotional distress." Thomas 157 F. Supp.2d at 637. Plaintiff Dai's situation is no different. Therefore, the Court finds that Plaintiff can prove no set of facts which would entitle him to relief on this claim and will therefore grant Defendants' Motion to Dismiss the Amended Complaint as to Plaintiff's claim for negligent infliction of emotional distress in Count VI.
G. Count VII — 42 U.S.C. § 1983, Defendants UNC-CH and Gilbert
The Court also notes that, beyond their substantive failings, Plaintiff's tort claims of intentional and negligent infliction of emotional distress are, like his wrongful discharge and breach of contract claims, state common law claims which are barred from consideration in federal court by the State's Eleventh Amendment immunity.
In Count VII of the Amended Complaint, Plaintiff alleges that the "practices and conduct of both [UNC-CH and Gilbert] toward Plaintiff were violative of the Equal Protection Clause of the Constitutions of the United States of America and the State of North Carolina" and, therefore, that "Dr. Gilbert's discriminatory practices and conduct towards him violated 42 U.S.C. § 1983." (Am. Compl. ¶¶ 72, 76.) As to this claim, Defendants offer two separate arguments why Plaintiff's section 1983 claim should be dismissed. First, Defendants argue this claim should be dismissed as to UNC-CH and Gilbert in his official capacity because of the State's Eleventh Amendment immunity from liabilities that must be paid from public funds. Second, as to Gilbert in his individual capacity, Defendants argue that the claim should be dismissed because of the operation of collateral estoppel. Plaintiff responds to the first argument by relying on Corum v. University of North Carolina, 330 N.C. 761, 413 S.E.2d 276 (1992). cert. denied 506 U.S. 985 (1992), to suggest particularly as to Gilbert that individual defendants sued in their official capacities for prospective equitable relief do not benefit from Eleventh Amendment immunity. Secondly, Plaintiff responds to Defendants' collateral estoppel argument regarding Gilbert in his individual capacity by suggesting that his case is not precluded because he only availed himself of UNC-CH's internal grievance procedure, and a decision was not rendered by a state Administrative Law Judge nor was a legal opinion rendered. Dai further raises a somewhat incongruous argument contending that res judicata is inapplicable to Gilbert in his individual capacity.
The Court will not address this argument except to say that, although a companion doctrine with collateral estoppel, res judicata is narrower in application and operates so that only "a final judgment on the merits in a prior action will prevent a second suit based on the same cause of action between the same parties or those in privity with them."Thomas M. McLnnis Assocs., Inc. v. Hall, 318 N.C. 421, 428, 349 S.E.2d 552, 556 (1986) (emphasis supplied). The requirements necessary for the operation of res judicata are inapplicable here, instead it is the broader doctrine of collateral estoppel which bars Plaintiff's claim because collateral estoppel provides that "a final judgment on the merits prevents relitigation of issues actually litigated and necessary to the outcome of the prior action in a later suit involving a different cause of action between the parties or their privies." Id. at 428, 349 S.E.2d at 557 (emphasis supplied).
The Court will first address Defendants' Eleventh Amendment argument as it applies to UNC-CH and Gilbert in his official capacity. As discussed above, the Eleventh Amendment provides states with immunity from liabilities that must be paid from public funds. Quern, 440 U.S. at 342-43, 99 S.Ct. at 1146. It is settled that Congress did not intend the federal civil rights statutes, including § 1983, to abrogate this immunity. Id. Plaintiff's citation to Corum does not indicate otherwise. There the North Carolina Supreme Court stated that "plaintiff's action against UNC, ASU, and the individual defendants sued in their official capacities for prospective equitable relief is not barred because in this context these defendants are `persons' reachable under section 1983."Corum, 330 N.C. at 771, 413 S.E.2d at 283 (emphasis supplied). In the present case however, Plaintiff has not requested prospective equitable relief but, rather, contends he "is entitled to recover back pay and compensatory damages from both Defendants . . ." (Am. Compl. ¶ 78.) Because, as discussed above, the State of North Carolina has not waived its Eleventh Amendment immunity, Plaintiff is jurisdictionally barred from bringing suit for such monetary damages. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989) (holding that "neither a State nor its officials acting in their official capacities are `persons'" against whom monetary damages under § 1983 may be obtained).
Therefore, the Court will grant Defendants' Motion to Dismiss the Amended Complaint as to Plaintiff's Count VII § 1983 claim against Defendant UNC-CH and Defendant Gilbert in his official capacity.
The Court will now consider Plaintiffs § 1983 claim as it relates solely to Defendant Gilbert in his individual capacity. Defendants do not argue that the Eleventh Amendment provides immunity for Gilbert, but suggest instead that collateral estoppel bars Plaintiff from relitigating in this Court the issue that is determinative of Plaintiff's § 1983 claim where Plaintiff has previously litigated the same issue in administrative proceedings. The particular issue addressed here is that of national origin discrimination raised by Plaintiff.
The Supreme Court considered a collateral estoppel question in a setting very similar to the present case in University of Tennessee v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986). There, as in the present case, the plaintiff litigated the issue of alleged unlawful discrimination in the university's grievance process, and the finding of no such motivation was affirmed at the highest administrative level of appeal. Elliott at 791-92, 106 S.Ct. at 3222. Also, like Dai, the plaintiff in Elliott chose not to seek review of the decision in the state's courts, instead proceeding with his discrimination claim in federal court under Title VII and 42 U.S.C. § 1983. Id. The Supreme Court held that, while unreviewed administrative determinations by state agencies did not preclude a trial de novo in federal court of a Title VII claim, the same was not true of a claim under § 1983. Id at 796-97, 106 S.Ct. at 3225. Specifically, as to the § 1983 claim, the Court "h[e]ld that when a state agency acting in a judicial capacity resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, federal courts must give the agency's fact finding the same preclusive effect to which it would be entitled in the State's courts." Id. at 799, 106 S.Ct. at 3226 (quotation and citation omitted).
Thus, the question before this Court is whether UNC-CH was acting in a judicial capacity to resolve a disputed issue of fact properly before it which the parties had an adequate opportunity to litigate and, if so, whether that issue is the same as the one Plaintiff now brings before this Court.
Plaintiff does not dispute the second half of that question. Moreover, it seems apparent from the face of Plaintiff's Amended Complaint that the issue he now brings before this Court, that is, whether there was national origin discrimination on the part of UNC-CH, acting through Gilbert, which motivated the termination of his employment, is indeed the same issue Dai brought before the Faculty Grievance Committee. The Court will therefore find that the allegations of Plaintiff's § 1983 claim raise the same issue as Plaintiff has raised in previous proceedings. Accordingly, the only thing left for the Court to determine is whether UNC-CH was acting in a judicial capacity to resolve a disputed issue of fact properly before it which the parties had an adequate opportunity to litigate.
On this issue Plaintiff argues that the Elliott standard has not been met because in Elliott the decision reached was by a state Administrative Law Judge (ALJ), while here the decision was rendered by a Faculty Grievance Committee. Plaintiff contends this does not satisfy Elliott because there has been no showing that the Committee has the same inherent powers as are vested, by N.C. Gen. Stat. § 150B-33, in state ALJs. Thus, Plaintiff contends that because his proceeding was not heard by an ALJ and no legal opinion was produced, collateral estoppel cannot be used here to bar his claim. This argument is without merit.
Although apparently designated as a one-time ALJ for purposes of Elliott's hearing, the hearing officer in Elliott was in fact a university official, the Administrative Assistant to the Vice President for Agriculture. Elliott, 478 U.S. at 791, 106 S.Ct. 3222. Moreover, the final agency decision was rendered by another university official, the Vice President for Agriculture. Id. Similarly, in Long v. Laramie County Cmty. Coll. Dist., 840 F.2d 743, 746-47 (10th Cir. 1988), cert. denied 488 U.S. 825 (1988), a college Grievance Committee conducted an administrative hearing and made findings and recommendations for review and final decision by the college's Board of Trustees. In other cases the administrative proceeding was conducted by a panel of the employee's peers, as was done in Dai's case. See Layne v. Campbell County Dep't of Soc. Servs., 939 F.2d 217, 219 n. 5 (4th Cir. 1991) (county employee given hearing before panel consisting of three members chosen from a standing panel appointed by the county's Board of Supervisors; one member selected by the department head, one by the grievant, and the third by the two appointees, or by the state circuit court, if requested); Roberts v. County of Fairfax, 937 F. Supp. 541, 544 (E.D. Va. 1996) (county employee granted hearing before county Civil Service Commission, a body appointed by the county Board of Supervisors to adjudicate employee grievances). Despite this variety of hearing officials, the courts in each case recognized that the administrative proceedings were judicial in nature. The key factor in each determination was whether the designated officials, regardless of their titles, made their determinations in the course of proceedings in which the employees had a full and fair opportunity to litigate the issues presented. See e.g., Long, 840 F.2d at 751 (describing opportunity to present documentary and testimonial evidence, cross-examine witnesses, and have advice of counsel as among the reasons for finding that the administrative agencies acted in a judicial capacity within the meaning of Elliott.)
Here, the Court finds that Plaintiff has already had a full and fair opportunity to litigate, before a state agency acting in a judicial capacity, the issue he raises in his present § 1983 claim. In the hearing before the Faculty Grievance Committee, witnesses were examined and cross-examined, and documentary evidence was introduced. Further, both Dai and Defendants had the benefit of the advice of counsel. Additionally, the proceedings were recorded. After considering the evidence presented, the Faculty Grievance Committee made findings and recommendations which were reviewed at the University level by the Interim Chancellor. (Dunbar Aff. ¶¶ 8-9.) In the University's final decision, the Interim Chancellor reviewed the written record of the proceedings and issued his own findings, including the specific finding at issue here: that Dai had failed to substantiate his allegations of national origin discrimination. (Dunbar Aff. ¶ 9 Exh. 2.) Along with other issues he raised before the Committee, Plaintiff presented a statement on his claim of national origin discrimination to the Committee and was permitted to question Gilbert on Gilbert's own statement regarding those issues. Plaintiff submitted evidence, including documents prepared by his counsel, and was given copies of the documents Gilbert submitted. Plaintiff also presented witnesses and had the opportunity to question all witnesses, including those adverse to him. The hearing panel considered the entire record accumulated during this proceeding in reaching its finding that national origin discrimination was not a factor in the termination of Plaintiff's employment contract.
Plaintiff next had the benefit of a whole-record review of the Committee's findings, conducted by the Interim Chancellor. After this entire process Plaintiff then exercised his right to appeal the University's final determination to the UNC-CH Board of Trustees and the UNC Board of Governors. Dai also had the right to petition the North Carolina courts for judicial review of the final administrative decision from these bodies, pursuant to the North Carolina Administrative Procedure Act, N.C. Gen. Stat. § 150B-43. However, like the plaintiff in Elliott, Dai chose not to take advantage of that opportunity, instead filing the present lawsuit alleging national origin discrimination under § 1983. Thus, because Dai did not seek further review of the University's final ruling, this administrative decision must be given the same preclusive effect to which it would be entitled in North Carolina courts. Elliott, 478 U.S. at 799, 106 S.Ct. at 3226 ("[F]ederal courts must give the agency's factfinding the same preclusive effect to which it would be entitled in the State's courts.").
A brief examination of North Carolina case law indicates that the States' courts would indeed apply the bar of collateral estoppel to his § 1983 claim. In North Carolina, to "determin[e] whether collateral estoppel is applicable to specific issues, certain requirements must be met: (1) The issues to be concluded must be the same as those involved in the prior action; (2) in the prior action, the issues must have been raised and actually litigated; (3) the issues must have been material and relevant to the disposition of the prior action; and (4) the determination made of those issues in the prior action must have been necessary and essential to the resulting judgment." King v. Grindstaff, 284 N.C. 348, 358, 200 S.E.2d 799, 806 (1973). In particular, in cases such as this where the "[p]laintiff has not sought judicial review of the administrative determination . . . but rather filed an original action in . . . [c]ourt. The general rule is that an essential issue of fact which has been litigated and determined by an administrative decision is conclusive between the parties in a subsequent action." Maines v. City of Greensboro, 300 N.C. 126, 133, 265 S.E.2d 155, 160 (1980). This is why, in similar instances, North Carolina courts have found that collateral estoppel barred plaintiffs' relitigation of race discrimination under 42 U.S.C. § 1983, where the issue had been raised and resolved in a prior administrative proceeding. See e.g. King v. North Carolina Dept. of Transp., Div. of Motor Vehicles, 121 N.C. App. 706, 711, 468 S.E.2d 486, 491 (1996), rev, denied, 343 N.C. 751, 473 S.E.2d 617 (1996) ("Accordingly, because we conclude, as the trial court determined, that issue preclusion bars relitigation of the racial discrimination issue, we affirm the trial court's grant of summary judgment on King's Title VII and 42 U.S.C. § 1983 claims."). Therefore, because collateral estoppel would bar Plaintiff from relitigating this issue in the courts of North Carolina, he is likewise barred from doing so here. Accordingly, the Court will grant Defendants' Motion to Dismiss the Amended Complaint as to Plaintiff's Count VII claim against Defendant Gilbert in his individual capacity for a violation of 42 U.S.C. § 1983.
IV. CONCLUSION
For the reasons discussed above, the Court has determined that it lacks subject matter jurisdiction over several of Plaintiff's claims as specifically described herein due to the limitations placed on the jurisdiction of federal courts by the Eleventh Amendment. With regard to the remaining claims, even drawing all reasonable factual inferences in Plaintiff's favor, the Court finds that Plaintiff can prove no set of facts in support of each claim which would entitle him to relief. Therefore, the Court will grant in full Defendants' Motion to Dismiss the Amended Complaint [Document #8]. Therefore, Plaintiff's Amended Complaint [see Document #6] will be dismissed in its entirety as to both Defendant UNC-CH and Defendant Gilbert. An Order and Judgment consistent with this Memorandum Opinion will be filed contemporaneously herewith.