Opinion
1:00cv250-C
March 30, 2001
MEMORANDUM AND RECOMMENDATION
THIS MATTER is before the court upon defendants' Motion to Dismiss. Having carefully considered that motion and reviewed the pleadings, the undersigned enters the following findings, conclusions, and recommendation.
FINDINGS AND CONCLUSIONS
I. Background
At the time of his dismissal, plaintiff had worked for the State of North Carolina as a psychologist for nearly 20 years, and he worked at Broughton Hospital during that period as a Staff Psychologist II, grade 72. On January 19, 1996, plaintiff was discharged from his employment for unacceptable personal conduct and grossly inefficient job performance. Complaint, ¶ 44. Specifically, plaintiff was cited for his handling of a particular patient and his alleged failure to develop a treatment plan for her. Plaintiff contends that reason was pretextual and that he was terminated from his employment based on his opposition to sexual harassment he observed and reported the previous year involving a nurse. Plaintiff contends that he received disparate treatment, in that the alleged accuser, who was implicated in the same patient mistreatment, was allowed to resign, while he and the alleged victim, who was also involved in the treatment of that patient, were terminated.
Plaintiff appealed the dismissal (and the denial of his agency grievance) to the North Carolina Office of Administrative Hearings ("OAH"). The Administrative Law Judge ("ALJ") determined that plaintiff's termination was without just cause and awarded him reinstatement, back pay, lost benefits, and attorney's fees. The State Personnel Commission affirmed the recommendation of the ALJ. Plaintiff was reinstated May 4, 1998, but contends he did not receive full compensation and career growth credit during that period.
Concurrent with the administrative contest of the termination decision, plaintiff filed a charge with the Civil Rights Division of OAH (the Title VII deferral agency in North Carolina), hereinafter "OAH-CRD." OAH-CRD determined in 2000 that plaintiff was discharged in violation of Section 704(a) of Title VII and issued plaintiff a right-to-sue letter.
Defendants have moved to dismiss the complaint in its entirety, arguing that plaintiff failed to provide a jurisdictional statement, this court lacks jurisdiction over certain claims, and plaintiff has otherwise failed to state cognizable claims. In seeking dismissal, defendants contend that plaintiffs failure to avail himself of administrative remedies provided by the State of North Carolina prohibits jurisdiction from vesting in this court under Title VII. Further, defendants allege that plaintiff's claims under Section 1983 are barred by the eleventh amendment and that his state law tort claims are not cognizable because the State of North Carolina has not waived its sovereign immunity from suit. Plaintiff has responded timely to defendants' motions, and the court has allowed amendment of the complaint to remedy scrivener's errors.
II. Motion to Dismiss Standard
Defendants have moved for dismissal pursuant to Rule 12(b), Federal Rules of Civil Procedure, contending that this court lacks jurisdiction over plaintiff's claims. Rule 12(b) authorizes dismissal based upon a dispositive issue of law. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 1832(1989); Hishon v. King Spalding, 467 U.S. 69, 73(1984);Conley v. Gibson, 355 U.S. 41(1957). As the Court discussed in Neitzke:
This procedure [for dismissal], operating on the assumption that the factual allegations in the complaint are true, streamlines litigation by dispensing with needless discovery and fact finding. Nothing in Rule 12(b)(6) confines its sweep to claims of law which are obviously insupportable. On the contrary, if as a matter of law "it is clear that no relief could be granted under any set of facts . . . a claim must be dismissed, without regard to whether it is based on outlandish legal theory. . . . What Rule 12(b)(6) does not countenance are dismissals based on a Judge's disbelief of a complaint's factual allegations."Id., at 1832 (citation omitted). For the limited purpose of making a recommendation as to disposition of defendants' motion, the undersigned has accepted as true the facts alleged by plaintiff in the complaint and viewed them in a light most favorable to plaintiff.
III. Dismissal of Title VII Claim for Failure to Exhaust State Remedies
The necessity of asserting and then exhausting an administrative claim based on a state's antidiscrimination law is well settled and was addressed by the Court of Appeals for the Fourth Circuit in Davis v. North Carolina Dept. of Correction, 48 F.3d 134 (4th Cir. 1995). InDavis, the appellate court held that a federal court lacks jurisdiction over a Title VII complaint where a state has enacted a law prohibiting the unlawful employment practice, a state has established a state authority to grant or seek relief from such practice, and the federal plaintiff failed to first avail himself of such state remedy.
The similarity between Davis and this action is striking. Plaintiff inDavis filed an EEOC charge alleging violation of Title VII, which was referred by the EEOC to the OAH-CRD pursuant to a referral agreement. OAH-CRD investigated the Title VII charge, but conducted no investigation under Chapter 126-17, which provides the state prohibition on retaliation for opposing discrimination, because Davis failed to file any grievance, charge, or complaint with the State Personnel Commission ("SPC") or the OAH-CRD. The Davis court held that because plaintiff never presented a claim of violation of state law to the state administrative body, he never had a valid charge pending before the EEOC, he was not entitled to a right-to-sue letter, and there was no federal-court jurisdiction over his claim.
In this case, plaintiff seeks to assert a Title VII cause of action for retaliation for opposition to discrimination. Undisputedly, North Carolina makes retaliation for opposition to discrimination unlawful, N.C. Gen. Stat. § 126-17, and provides aggrieved state employees a mechanism to enforce such right. Id., at § 126-34.1(a)(3). Plaintiff has not, and apparently cannot, allege that he properly asserted and administratively exhausted such a state-law claim.
Review of the pleadings reveals that, after termination, plaintiff attacked such decision on two fronts. First, he filed a claim with OAH challenging the employment action and asserted a claim for retaliation for opposition to discrimination. (The pleadings are devoid of any reference to when such charge was filed and the actual contents of the charge). Second, he promptly filed a federal claim for retaliation based on opposition to discrimination with the EEOC, which transferred the matter to OAH-CRD (which the court finds to be distinct from OAH) as the statutory deferral agency under a work-share agreement.
Apparently, the two claims proceeded along very different tracks. Little more than a year after filing the first claim with OAH, plaintiff received an administrative hearing, at which he was represented by counsel. Two months later, a favorable decision issued, which was adopted seven months later by the SPC.
The second claim proceeded before OAH-CRD, which caused to be issued an almost immediate letter to plaintiff's employing agency advising that a civil rights investigation had commenced on the Title VII claim.
In the recommended decision on plaintiff's first claim, dated August 21, 1997, OAH "allowed" the state's motion to dismiss plaintiff's "retaliation claim as untimely." Such decision went undisturbed by the SPC and is a final decision for all intents and purposes. The spin to be placed on such "final decision" is not, as will be discussed below, as sweeping as defendants argue; however, the end result is the same.
Arguing that the ALJ's decision that plaintiff's retaliation claim is res judicata, defendants assert that this court must give the same preclusive effect to state-court judgments that would be given by a state court sitting in the jurisdiction from which such decision issued. This court agrees as to the necessity and applicability of the doctrine. Defendants argue that when such doctrine is applied to the ALJ's decision that plaintiff's "retaliation claim [is dismissed] as untimely," that decision would "bar further action in state court and therefore should be a bar to this action." The undersigned does not believe the ALJ's decision goes that far.
As argued by defendants, North Carolina courts recognize that decisions rendered from contested administrative cases are judicial decisions, which can bar subsequent civil actions. Catawba Memorial Hospital v. N.C. Dept. of Human Resources, 112 N.C. App. 557(1993), rev. denied, 336 N.C. 72(1994). While no complete copy of the administrative pleadings or any transcript has been provided, the court has searched the limited record provided by the respective parties to determine the scope of the ALJ's dismissal of the "retaliation claim as untimely." The ALJ's opinion is devoid of a detailed explanation of such decision, and the following questions patently are not answered:
(1) whether such claim was federal or state; and
(2) whether "untimely" meant time-barred, as defendants suggest at page four of their argument, or simply premature.
In construing administrative judgments that are capable of differing meanings, North Carolina courts have held, as follows:
When an issue has been directly tried and decided it cannot be contested again between the same parties or their privies in the same or any other court. "This rule prevails as to matters essentially connected with the subject matter of the litigation and necessarily implied in the final judgment, although no specific finding may have been made in reference thereto. If the record of the former trial shows that the judgment could not have been rendered without deciding the particular matter, it will be considered as having settled that matter as to all future actions between the parties."
As stated in 1B Moore's Federal Practice s 0.443(4) (2d Ed. 1965): "(Collateral estoppel's) requirement that an issue must have been determined by adjudication in the prior action is . . . significant . . . in situations in which the issue was undoubtedly raised and litigated in the prior action, but either was not in fact determined or cannot conclusively be shown to have been determined by the resulting judgment. In discovering what issues were determined by the judgment in a prior action, the court in the second action is free to go beyond the judgment roll, and may examine the pleadings and the evidence in the prior action. And if the rendering court made no express findings on issues raised by the pleadings or the evidence, the court may infer that in the prior action a determination appropriate to the judgment rendered was made as to each issue that was so raised and the determination of which was necessary to support the judgment."
Furthermore, Bradley's contention that this Court should not be bound by the Federal judgments since the Federal Courts erroneously applied North Carolina law and did not follow established rules of Federal procedure ignores an important rule applicable to res judicata and collateral estoppel. To be valid a judgment need not be free from error. Normally no matter how erroneous a final valid judgment may be on either the facts or the law, it has binding Res judicata and collateral estoppel effect in all courts, Federal and State, on the parties and their privies.King v. Grindstaff, 284 N.C. 348, 359-360 (1973) (citations omitted; emphasis added).
The first issue is whether the claim asserted before OAH was state or federal. A search of the partial administrative record (as it has been attached in various pieces to the pleadings) reveals, unequivocally, that plaintiff's federal charge of discrimination was not before OAH and that ALJ. As discussed above, the federal charge was filed with the EEOC on March 19, 1996; the EEOC referred such matter to the OAH-CRD as the deferral agency; and the OAH-CRD issued a letter April 25, 1996, to plaintiff's employing agency indicating that it had received the federal civil rights complaint from the EEOC and would be initiating an investigation of the federal charge. The next document of record that concerns the federal charge is a "Notice of Determination" dated February 3, 2000, indicating that OAH-CRD had determined reasonable cause to believe that a Title VII violation had occurred.
Meanwhile, OAH, moved forward with the personnel grievance and a different charge of discrimination. OAH conducted a contested case hearing in June 1997 and issued its decision August 21, 1997, recommending reinstatement, but also dismissing the opposition claim as "untimely." That decision was affirmed on March 9, 1998, by the State Personnel Commission, and plaintiff was reinstated in May 1998.
To decide the first issue of the origin of the charge that was before OAH, the court must also take into consideration the second issue, which is the meaning of "untimely." The reference in the OAH decision to plaintiff's retaliation claim being "untimely" is most important to determining whether the claim was based on federal or state law. Review of plaintiff's brief in response reveals confusion on his part: he believes the claim was dismissed because "The Office of State Personnel strictly adheres to the rule that a contested case petition must be filed within 30 days of the last discriminatory act, or the complaint of discrimination is time barred." Plaintiff's Response, at 6. Plaintiff cites no authority for this argument, but the court concludes that plaintiff has lifted the 30-day deadline from Chapter 126-35, which provides that an employee has but 30 days to appeal to the State Personnel Commission the "just cause" termination decision by a department head.
It would make little sense for the Legislature to place a 30-day limitation on bringing discrimination claims or tie such claims to just-cause determinations as to personnel action. Discrimination is seldom, if ever, patently practiced.
Plaintiff also takes the view that there was but one complaint before the administrative body; however, review of the administrative record presented reveals two separate and distinct state administrative processes. The first was under OAH, which reviewed the personnel action for "just cause" and the claim for opposition retaliation. The second was the investigation by OAH-CRD as the EEOC deferral agency. Most importantly, each proceeding was assigned a separate case number by the respective branches of OAH.
Plaintiff cites no authority for his proposition that his state-law claim was time barred or that his claims were a unified action. Even if he were to assert such theory successfully, it would be antithetical to his ever asserting a Title VII claim, since failure to comply with a statute of limitations is not a substitute for exhaustion.
Plaintiff and defendants have all assumed that "untimely" is synonymous with "time barred." To the contrary, the plain meaning of "untimely" filed (used, as here, as an adverb) is "1: at an inopportune time . . . 2: before the due, natural, or proper time." Merriam Webster's Collegiate Dictionary, 10th Ed. Granted, an inopportune time could be belatedly, but such a construction would be diametrically opposed to the relevant state law and the few sentences that explain the ALJ's dismissal of such claim. When the ordinary meaning of untimely is compared with relevant state law and the clues found in the ALJ opinion, it becomes clear that plaintiff's OAH opposition claim was not dismissed as filed too late, but dismissed as filed too early. This court has, as suggested by the state court in King, searched the record and relevant statutory law for guidance. Chapter 126-34 of the North Carolina General Statutes provides that before a harassment or discrimination claim can be made to the State Personnel Commission (and, by implication, its designee OAH), the claim must first be submitted to the employee's supervisor in accordance with the grievance procedure in effect in that employee's agency. N.C. Gen. Stat. § 126-34. After such threshold submission, the employing agency has 60 days to consider the claim before plaintiff may appeal the agency disposition to the State Personnel Commission.
With that provision in mind, the ALJ's two-sentence explanation of the motion and its disposition makes perfect sense:
Respondent's motion to dismiss Petitioner's retaliation claim as untimely was held open until Petitioner cross-examined Broughton Hospital Director Seth Hunt. Following Director Hunt's cross examination, the motion was ALLOWED.
Recommended Decision, at 1. Dismissal of plaintiff's retaliation claim as "untimely" indicates that such dismissal was of a Chapter 126-17 claim for retaliation, which is a positive development herein for plaintiff. It also means, however, that the claim was not dismissed as "time barred," but as unripe because plaintiff failed to first present it to his supervisor for resolution. Strict compliance with administrative procedure is an unvarying prerequisite for obtaining judicial review of employment related claims in North Carolina, Johnson v. North Carolina DOT, 107 N.C. App. 63 (1992); and the ALJ followed the letter of the law in dismissing plaintiff's claim as premature.
After applying the decision making model for interpreting administrative judgments suggested in King v. Grindstaff, supra, the undersigned concludes, as follows:
(1) plaintiff asserted before a state tribunal, OAH, a claim for retaliation for opposition;
(2) reading the pleadings in a light most favorable to plaintiff, as required by Rule 12, a reasonable, if not strong, inference is that plaintiff asserted such claim under state law;
(3) assuming such claim was made under state law, the claim was administratively dismissed without prejudice for plaintiff's failure to first submit the claim to his supervisor, as required by Chapter 126-34; and
(4) there is no record that such state-law claim was ever properly reasserted by plaintiff.
The undersigned, therefore, concludes that plaintiff asserted a state-law claim for retaliation for opposition to discrimination and that such claim was dismissed without prejudice as "untimely," in that it was not ripe for consideration by the State Personnel Commission because plaintiff failed to first comply with Chapter 126-34. Inasmuch as plaintiff never went back and reasserted that claim before his agency, he never exhausted his state-law remedy, which divests this court of any jurisdiction over plaintiff's federal claim. Plaintiff's timely submission of a federal claim, which was properly deferred to the OAH-CRD under the workshare agreement and investigated, is, surprisingly, of no import. Absent exhaustion of the state remedy, any issuance of a right-to-sue letter by OAH-CRD, even after finding that plaintiff had been the victim of discrimination proscribed by Title VII, does not give plaintiff a right to sue. Davis, supra. While the court would be inclined to recommend dismissal of plaintiff's federal claim without prejudice so that he could go back and exhaust his remedy, the passage of time has created a situation where plaintiff is barred from attempting to exhaust his state remedy. Assuming in the most liberal interpretation of North Carolina law that North Carolina's general three-year limitations period applied to Chapter 126-17 claims, the period for plaintiff to reassert such claim before his employer passed not later than January 1, 2000. For these reasons, the undersigned will recommend that plaintiff's Title VII claim be dismissed with prejudice for failure to exhaust his state remedy.
The complaint, as twice amended, lacks the specific date that plaintiff asserted his claims before the OAH. OAH most likely issued a case number when the complaint was filed, and the number placed thereon, 960SP969, would indicate that the matter was filed in 1996. The claim (also absent from the pleadings now before the court) most certainly contained the disputed state-law claim, making plaintiff's discovery of that claim not later than December 31, 1996. Applying most generous three-year limitations period, which is also what would be applied to the sister Title VII claim, plaintiff's unexhausted Chapter 126-17 claim was stale well before this action was filed.
While it is not the court's position to teach federal practice, counsel for the respective parties should review their pleadings, motions, and briefs for consideration of whether they provided the court with a logical description of what transpired and the documents that would have been supportive. Although plaintiff's complaint is exhaustive as to what abuse allegedly occurred to the patient (indeed, down to reciting the day, time hour, and temperature), he makes hardly any mention of when important filings were made with the administrative forum. This is particularly important where, as here, a challenge is made to exhaustion.
IV. Dismissal of Constitutional Claims
A. Introduction
In Lujan v. Defenders of Wildlife, 504 U.S. 555(1992), the Supreme Court held that the "party invoking federal jurisdiction bears the burden of establishing" the elements of standing,, and "each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation," id. at 561; and when, as here, "standing is challenged on the basis of the pleadings, we `accept as true all material allegations in the complaint, and . . . construe the complaint in favor of the complaining party.'" Pennell v. City of San Jose, 485 U.S. 1, 7(1988) ( quoting Warth v. Seldin, 422 U.S. 490, 501(1975)). Plaintiff has failed to accomplish this task, despite being allowed twice to amend his complaint.
B. Absolute Immunity of the State of North Carolina and Individuals Sued in Their Official Capacities to Plaintiff's Federal Constitutional Claims
In addition to asserting a claim under Title VII, plaintiff also contends that the state defendants' conduct violated Section 1983. The eleventh amendment of the United States Constitution provides, as follows:
[The] judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.
The North Carolina Department of Health and Human Services is an agency of the State of North Carolina, as are the individual defendants sued in their official capacities.
Those defendants have moved to dismiss such claim under Rule 12(b)(2), alleging that this court lacks jurisdiction over them because they enjoy eleventh-amendment immunity from suit and have not waived that immunity.Moreno v. University of Md., 645 F.2d 217 (4th Cir. 1981) aff'd, 458 U.S. 1(1982). Absent waiver or consent, the eleventh amendment bars suits directly against a state or its agencies, regardless of the nature of the relief sought. Pennhurst State School Hosp. v. Halderman, 465 U.S. 89(1984). The eleventh-amendment bar is effective whether the state is a named party or, as here, a party in fact. Scheuer v. Rhodes, 416 U.S. 232, 237(1974). A suit against an employee in his official capacity is, in fact, a suit against the state. Inasmuch as the party in fact — the State of North Carolina — is immune under the eleventh amendment, the undersigned will recommend that plaintiff's Section 1983 action be dismissed as to such state parties.
C. State Constitutional Claims Asserted Against State Employees In Their Individual Capacities
Plaintiff has also attempted to assert parallel state constitutional claims against state actors in their individual capacities. These claims are absolutely barred as a matter of well-settled state law,
From inception and through amendment, plaintiff has failed to identify the provisions of the state constitution upon which he relies in asserting such parallel state constitutional claims. The court determines, however, that plaintiff may be attempting to assert (1) his right to free speech, as protected by Article I, Section 14 of the North Carolina Constitution; (2) his right to due process, as protected by Article I, Section 19 of the North Carolina Constitution; and (3) his right to liberty, as protected by Article I, Sections 1 and 19 of the North Carolina Constitution.
In Corum v. University of North Carolina, 330 N.C. 761(1992), the North Carolina Supreme Court explicitly held that North Carolina does not recognize a direct cause of action under the North Carolina Constitution against state employees sued in their individual capacities:
The [State] Constitution is intended to protect our rights as individuals from our actions as the government. The Constitution is not intended to protect our rights vis-a-vis other individuals.Id., at 788. Under the Corum analysis, plaintiff can have no claims against any of the defendants in their individual capacities under the North Carolina Constitution. The undersigned, therefore, will recommend that those claims be dismissed with prejudice in accordance with Rule 12(b)(6).
D. Qualified Immunity: Federal Constitutional Claims Against Individual Defendants Sued In Their Individual Capacities
Public officials sued in their individual capacities are free from liability for monetary damages if they can plead and prove that their conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 815-16(1982). In Mitchell v. Forsyth, 472 U.S. 511(1985), the Supreme Court held that qualified immunity is "immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if the case is erroneously permitted to go to trial." Id. at 526. Qualified immunity is a question of law, Adams v. St. Lucie County Sheriff's Dept., 962 F.2d 1563, 1566-67 (11th Cir. 1992).
When a defendant asserts qualified immunity, the court "considers in the light most favorable to the plaintiff all facts fairly inferrable [sic] from the record — regardless of the existence of factual disputes — and decides whether, under those facts, defendant's conduct violated law clearly established at the time." Bennett v. Parker, 898 F.2d 1530, at 1535, n. 2 (11th Cir. 1990). The Bennett court further held that such "determination, whether in the context of a Rule 56(b) or (e) motion for summary judgment, a motion to dismiss for failure to state a claim, or a motion for judgment on the pleadings, is a legal determination. . . ." Id.
Plaintiff here must show the court that he can and has made allegations of fact which could support a finding that defendants committed the unconstitutional acts alleged — specifically, infringing his right to free speech and depriving him of property without due process of law. In addition, plaintiff must allege acts to support his conspiracy theory that is contained within the second cause of action.
As a matter of law, those acts must be sufficient to generate liability under the first and fourteenth amendments. All inferences, including credibility of an affiant, are drawn in favor of plaintiff for qualified-immunity purposes. Gordon v. Kidd, 971 F.2d 1087, 1093-94 (4th Cir. 1992). If it is undisputed that the right allegedly violated was clearly established at the time, a defendant asserting a qualified-immunity defense may still be immune from damages for violation of that right if, under the circumstances, a reasonable official could have believed that his or her particular conduct was lawful. A court must make an objective, although fact-specific, inquiry into the legal reasonableness of the conduct. Anderson v. Creighton, 483 U.S. 635, 641(1987). The lawfulness of the action must be apparent when assessed from the perspective of an objectively reasonable official charged with knowledge of established law; a defendant's motives are irrelevant to the qualified-immunity inquiry. Id. The inquiry depends upon the reasonableness of the official's perceptions, not those of the plaintiff. Gooden v. Howard County, 954 F.2d 960, 965 (4th Cir. 1992) ( en banc).
The only relevant allegation of an affirmative act done by any of the individual defendants is found at paragraph 20 of the Second Amended Complaint, in which plaintiff avers that he "was discharged from Broughton Hospital in Morganton, North Carolina, by Defendant Mike Orndoff, purportedly because plaintiff reported that a coworker, Annette Honea, Registered Nurse, had been sexually harassed by Dr. Randall Lay, Staff Psychiatrist."
In the relevant part of his second claim for relief, plaintiff contends that the individual defendants "conspired to deprive him of his property, his reputation, and his rights to and free speech as protected by the laws of . . . the United States." Second Amended Complaint, at 83 (errors in the original). At page five of their arguments, defendants contend that these claims should be dismissed based on qualified immunity. Defendants provide no other argument for dismissal for the Section 1983 claims against the state employees in their individual capacities.
[T]he test for qualified immunity for executive officers is one of "objective legal reasonableness" — whether an official acting under the circumstances at issue reasonably could have believed that his action did not violate the constitutional rights asserted.Sevigny v. Dicksey, 846 F.2d 953, 956 (4th Cir. 1988) (citation omitted). And "[t]he contours of the right [violated by the officer] must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640(1987).
Assuming plaintiff's allegation found in paragraph 20 of the Second Amended Complaint is true, i.e., that Defendant Orndoff terminated him in retaliation for his opposition to discrimination (an allegation which finds support in those portions of the state administrative record supplied), that individual defendant cannot claim qualified immunity. As of the date of the alleged wrongful conduct, January 19, 1996, it was well established, both under Title VII and North Carolina law, that retaliation for opposition to discrimination was unlawful:
No state department, agency, or local political subdivision of North Carolina shall retaliate against an employee for protesting alleged violations of G.S. 126-16.
N.C. Gen. Stat. § 126-17. Chapter 126-17 had been in effect for 19 years at that point, and a reasonable state executive with supervisory authority over mental-health professionals should have been well aware of such state provision, as well as the federal opposition clause upon which it was undoubtedly based. It appearing that Defendant Ornoff is not entitled to the qualified immunity he seeks, the undersigned will recommend that his motion be denied and that such federal claims as may otherwise survive dismissal proceed against him in his individual capacity.
As to the remaining individual defendants sued in their individual capacities, there are absolutely no allegations that would support plaintiff's Section 1983 claims and conspiracy claims against them. As to Dr. Randall Lay, M.D., his only involvement in this matter appears to be that he was the person who, allegedly, harassed the nurse and received allegedly preferential treatment by being allowed to resign, rather than being fired, in relation to the patient-abuse incident. There is simply no nexus between him and the decision to terminate plaintiff. As to the supervisors of Defendant Orndoff, including the Secretary of the agency, plaintiff has failed to allege any facts which would show that such defendants conspired with Defendant Orndoff to deprive plaintiff of any right. Instead, the only allegations appear to be in the nature of a lack of due diligence on their part to substantively review the employment decision of Defendant Orndoff.
The doctrine of respondeat superior generally is inapplicable to Section 1983 suits. Monell v. Department of Social Servs., 436 U.S. 658, 694 (1978). Liability attaches if the conduct alleged directly causes a deprivation and is undertaken to effectuate official policy or custom for which the official is responsible. Fisher v. Washington Metro. Area Transit Auth., 690 F.2d 1133, 1142-43 (4th Cir. 1982). The official policy of the State of North Carolina is found in its general statute, which prohibits the specific conduct herein alleged. Higher officials may be liable for acts of subordinates if the official is aware of a pervasive, unreasonable risk of harm from a specified source and fails to take corrective action as result of deliberate indifference or tacit authorization. Slakan v. Porter, 737 F.2d 368 (4th Cir. 1984), cert. denied, 470 U.S. 1035(1985). There have been no such allegations in this case. Inasmuch as there are no allegations that would support plaintiff's broad charge of conspiracy, and it appearing that respondeat superior is inapplicable to these Section 1983 claims, the undersigned will recommend that plaintiff's claims against Defendants Bruton, Kilbride, Hunt, and Lay be dismissed with prejudice.
E. Statute of Limitations
Defendants have not tendered any argument concerning the statute of limitations, which is three years on Section 1983 claims. Review of the pleadings reveals that this action was filed on November 2, 2000, and that the alleged wrongful conduct occurred on January 19, 1996 — more than four years prior. N.C. Gen. Stat. § 1-52(5); National Advertising Co. v. City of Raleigh, 947 F.2d 1158 (4th Cir. 1991), cert. denied, 60 U.S.L.W. 3782 (U.S. 1992); Cole v. Cole, 633 F.2d 1083, 1091-92 (4th Cir. 1980). The limitations period is not tolled pending exhaustion of state administrative or judicial remedies. Howard v. Bangs, No. 88-7201 (4th Cir. Nov. 15, 1988) (unpublished) (exhaustion under Hamlin v. Warren, 664 F.2d 29 (4th Cir. 1981), cert. denied, 455 U.S. 911(1982)), cert. denied, 493 U.S. 827 (1989); Maddox v. Hopkins, No. 88-7670 (4th Cir. Sept. 16, 1988) (unpublished) (exhaustion under 42 U.S.C. § 1997e(1988)). It appearing from the face of the complaint that all of plaintiff's Section 1983 claims are time barred, the undersigned will recommend that those claims be dismissed with prejudice.
F. Possible Section 1983 Claims Against Defendant Orndoff
If the district court declines to accept the above-proffered recommendations, and assuming that plaintiff's second cause of action is not fatally defective on its face for noncompliance with Rule 8(a), the undersigned would recommend that the individual viability of each of plaintiff's Section 1983 claims be considered.
As to the first-amendment claim, a Section 1983 claim is only available where Congress has not afforded a more specific remedy. As discussed at length above, Title VII provides a specific remedy for retaliation for voicing opposition to employment discrimination. The allegations that support plaintiff's Section 1983 free-speech claim are identical to those that would have supported plaintiff's claim under Title VII for opposing employment discrimination. Plaintiff's first-amendment claim, therefore, must be dismissed for failure to state a cognizable claim.
Plaintiff's next claim is described by him in his pleading as the right to perform his job. There is not specific right "to do your job" found in the United States Constitution, but the undersigned has broadly construed the claim to be one for denial of due process in the taking of a liberty or property interest. Inasmuch as plaintiff has been restored to his job and back pay, his primary concern is the damage that such termination caused to his professional reputation. Under relevant case law, however, injury to a state employee's reputation is not actionable under Section 1983:
But the interest in reputation alone which respondent seeks to vindicate in this action in federal court is quite different from the "liberty" or "property" recognized in those decisions. Kentucky law does not extend to respondent any legal guarantee of present enjoyment of reputation which has been altered as a result of petitioners' actions. Rather his interest in reputation is simply one of a number which the State may protect against injury by virtue of its tort law, providing a forum for vindication of those interests by means of damages actions. And any harm or injury to that interest, even where as here inflicted by an officer of the State, does not result in a deprivation of any "liberty" or "property" recognized by state or federal law, nor has it worked any change of respondent's status as theretofore recognized under the State's laws. For these reasons we hold that the interest in reputation asserted in this case is neither "liberty" nor "property" guaranteed against state deprivation without due process of law.
Respondent in this case cannot assert denial of any right vouchsafed to him by the State and thereby protected under the Fourteenth Amendment. That being the case, petitioners' defamatory publications, however seriously they may have harmed respondent's reputation did not deprive him of any "liberty" or "property" interests protected by the Due Process Clause.Paul v. Davis, 424 U.S. 693, 711-12(1976).
Assuming that plaintiff is attacking the process used in his termination, due process usually requires a predeprivation hearing where the loss of property or liberty results from established state procedures. Logan v. Zimmerman Brush Co., 455 U.S. 422(1982). A predeprivation process cannot reasonably be required, however, where loss results from a random, unauthorized act of an employee who is a state actor, Parratt v. Taylor, 451 U.S. 527(1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327(1986); in which event, due process is satisfied by the availability of adequate state postdeprivation remedies, Parratt, at 541; see Hudson, at 533-34. The analysis turns on whether the alleged deprivation is foreseeable and will occur at a predictable point, such that predeprivation safeguards would be of use in preventing the kind of deprivation alleged. Zinermon v. Burch, 494 U.S. 113(1990); Fields v. Durham, 909 F.2d 94 (4th Cir. 1990), cert. denied, 498 U.S. 1068(1991). Where these requirements are met and where the deprivation was effected by an employee authorized to effect such deprivation and responsible for initiating procedural safeguards, theParratt/Hudson rule has no application. Zinermon, at 136-38.
While no specific allegation has been made, the court has reviewed closely the quasi-judicial decisions upon which this action is founded. Specifically, while finding a violation of Title VII, the State Personnel Commission found that plaintiff's supervisor, presumably Defendant Orndoff, provided plaintiff with a pretermination conference. As to postdeprivation process, plaintiff cannot and simply has not alleged that such process was inadequate, inasmuch as he availed himself of that process and was restored to his former position with back pay. For these reasons, the undersigned will recommend that plaintiff's due-process claim be summarily dismissed in its entirety.
G. State Constitutional Claims Asserted Against The State, Its Agencies, and Defendants Sued in Their Official Capacities
At this point, all that remains of plaintiff's state constitutional claims (which were lumped with everything else in the second cause of action) are the claims against the State of North Carolina, eo nominee. While federal cases interpreting federal constitutional rights are not controlling in the interpretation of state constitutional rights, the federal and state constitutional rights asserted are identical, although originating in different textual sources. North Carolina courts have held repeatedly that federal court interpretation of federal rights that are concomitant with state rights is highly persuasive. McNeil v. Harnett County, 327 N.C. 552(1990); Armstrong v. Armstrong, 85 N.C. App. 93,rev'd on other grounds, 322 N.C. 397(1988). Based upon such decisions, the undersigned finds that plaintiff's state constitutional claims would be both time barred and impotent for reasons discussed in the immediately preceding sections. While it is obvious that the North Carolina free-speech claim would not be supplanted by Title VII, it would be preempted by Chapter 126-17 of the North Carolina General Statutes.
IV. State-Law Claims: Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress, and Violation of the State Constitution
Plaintiff has alleged state common-law claims for intentional infliction of emotional distress (claim three) and negligent infliction of emotional distress (claim four). This court's jurisdiction over those claims is pursuant to statutory supplemental jurisdiction, which provides that a federal court's original jurisdiction extends to nonfederal claims when the federal question is substantial and the claims asserted could be brought in one proceeding. In United Mine Workers v. Gibbs, 383 U.S. 715, 727(1966), the Supreme Court found, as follows:
[If] considered without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in the federal courts to hear the whole.
Inasmuch as it appears that plaintiff's state-law claims arise from the same transactions or occurrences upon which her federal claim is based, the issues are properly joined in this action.
To state a claim for intentional infliction of emotional distress, a plaintiff must allege "(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress." Hogan v. Forsyth Country Club, 79 N.C. App. 483, 488, disc. rev. denied, 317 N.C. 334(1986). "It is a question of law for the court to determine, from the materials before it, whether the conduct complained of may reasonably be found to be sufficiently outrageous as to permit recovery."Id., at 490. The court notes that while plaintiff comes close, he does not specifically allege that defendants' conduct "[did] cause severe emotional distress." Id., at 488. (See ¶¶ 88-93, Second Amended Complaint). Specifically, plaintiff alleges only that he "suffered great anxiety," ¶ 90, and that defendants "acted with reckless indifference to the likelihood that their actions would cause severe emotional distress to plaintiff," ¶ 91, not that defendants' conduct caused severe emotional distress.
As to the claim for negligent infliction of emotional distress, plaintiff must allege the following:
1. defendants negligently engaged in conduct;
2. it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress or mental anguish; and
3. the conduct did in fact cause the plaintiff severe emotional distress.Pardasani v. Rack Room Shoes. Inc., 912 F. Supp. 187, 192 (M.D.N.C. 1996). As with the intentional-infliction claim, plaintiff fails to allege that defendants' conduct did cause him severe emotional distress.
Inasmuch as those deficiencies could be cured by a third amended complaint, the undersigned has overlooked them. The problem, however, is that under relevant state law, this court has no jurisdiction over such claims when they are asserted against North Carolina and its employees. North Carolina has established the Industrial Commission for adjudication of torts allegedly committed by the State of North Carolina. N.C. Gen. Stat. §§ 143-291, et seq. By comparison, a state's waiver of sovereign immunity in its own courts is not a waiver of eleventh-amendment immunity subjecting it to suit in a federal court; similarly, a state's waiver of sovereign immunity so that its citizens might file tort claims against it in an administrative forum is not a waiver of eleventh-amendment immunity so that jurisdiction might somehow be conferred on the federal courts. If a state determines it will be sued, then it determines where it may be sued. See Pennhurst State School Hosp. v. Halderman, supra. This court lacks jurisdiction over the plaintiff's state common-law claims because North Carolina enjoys immunity from suit in this court. Such claims, however, should be dismissed without prejudice so that plaintiff may seek his remedy in state forums.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that defendants' Motion to Dismiss be ALLOWED in its entirety, as follows:
(1) plaintiff's Title VII claims be DISMISSED with prejudice for failure of the plaintiff to exhaust his administrative remedies, which, due to the passage of time, are no longer available;
(2) plaintiff's various federal constitutional claims, as proffered within the "Second Claim for Relief" and asserted under 42, United States Code, Section 1983, be DISMISSED with prejudice for the reasons discussed above;
(3) plaintiff's various state constitutional claims, as proffered within the "Second Claim for Relief" and asserted under the North Carolina Constitution, be DISMISSED with prejudice for the reasons discussed above;
(4) plaintiff's claim for intentional infliction of emotional distress be DISMISSED without prejudice for lack of jurisdiction;
(5) plaintiff's claim for negligent infliction of emotional distress be DISMISSED without prejudice for lack of jurisdiction; and
(6) plaintiff be taxed with defendants' costs in defending this action.
The parties are hereby advised that pursuant to 28, United States Code, Section 636(b)(1)(C), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within ten (10) days of service of same. Failure to file objections to this Memorandum and Recommendation with the district court will preclude the parties from raising such objections on appeal. Thomas v. Arn, 474 U.S. 140(1985), reh'g denied, 474 U.S. 1111(1986); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208(1984).
This Memorandum and Recommendation is entered in response to defendants' Motion to Dismiss (#5).