Johnson v. McNairy & Assocs.

• Court: Court of Appeals of North Carolina
• Decided: June 3, 2014
• Docket: 13-1138
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1138 NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2014

SANDRA MARIE JOHNSON, Plaintiff,

v. Guilford County No. 13 CVS 6142

McNAIRY & ASSOCIATES, JIM & JEANNE LLC, JIM & JEANNE McNAIRY, Defendants.

Appeal by plaintiff from order entered 7 August 2013 by

Judge Richard Doughton in Guilford County Superior Court. Heard

in the Court of Appeals 6 February 2014.

Sandra Marie Johnson, pro se, for plaintiff-appellant.

Tuggle Duggins, PA, by Denis E. Jacobson, for defendants- appellees.

DAVIS, Judge.

Sandra Marie Johnson (“Plaintiff”) appeals from an order

granting the motion to dismiss of Defendants McNairy &

Associates, Jim & Jeanne LLC, Jim McNairy, and Jeanne McNairy

(collectively “Defendants”) pursuant to Rules 12(b)(1) and (6) -2-

of the North Carolina Rules of Civil Procedure. After careful

review, we affirm.

Factual Background

We have summarized the pertinent facts below using

Plaintiff’s own statements from her complaint, which we treat as

true in reviewing the trial court’s order dismissing her

complaint under Rule 12(b)(6). See, e.g., Stein v. Asheville

City Bd. of Educ., 360 N.C. 321, 325, 626 S.E.2d 263, 266 (2006)

(“When reviewing a complaint dismissed under Rule 12(b)(6), we

treat a plaintiff’s factual allegations as true.”).

From August 2009 until 3 September 2010, Plaintiff was an

employee of McNairy & Associates, where she worked as an

administrative assistant. On 15 July 2010, one of the

appraisers working in the office, Tim Johnson (“Mr. Johnson”),

made a series of racist and derogatory comments to Plaintiff

concerning her boyfriend. Specifically, Mr. Johnson (1) called

Plaintiff’s boyfriend “a wet back [sic]”; (2) referred to

Plaintiff’s boyfriend “as a filthy disgusting low life”; and (3)

told Plaintiff “that she amounts to nothing, that her life is a

big fat zero because of her choices.” Mr. Johnson yelled these

statements across the room for the entire office to hear.

On 21 July 2010, Plaintiff told Doris Holt (“Ms. Holt”),

the office manager, that she was contemplating filing a charge

against Mr. Johnson with the Equal Employment Opportunity -3-

Commission (“EEOC”). Ms. Holt relayed this information to

Jeanne McNairy, one of the co-owners of McNairy & Associates.

Plaintiff subsequently began to feel as though she was

being ignored by Jim McNairy, the other co-owner of McNairy &

Associates. On 19 August 2010, Plaintiff received a negative

performance review from Laura Rich (“Ms. Rich”) and Nancy Tritt.

Several days after the performance review was conducted,

Plaintiff was told in confidence by an unidentified individual

that during a meeting Jim McNairy had instructed the appraisers

working for McNairy & Associates to “give [her] some task or

criticism and report back to him if [she] was unpleasant or

resistant.” On 3 September 2010, Plaintiff was fired by Ms.

Rich, who was acting on Jim McNairy’s instructions, on the

ground that the appraisers had lost confidence in her ability to

do her job.

On 1 March 2011, Plaintiff filed a charge of discrimination

with the EEOC against McNairy & Associates in which she alleged

a violation of her rights under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”). The EEOC

investigated Plaintiff’s charge and, according to Plaintiff,

issued her a right-to-sue letter.1

Plaintiff subsequently filed a pro se action against

1 There is nothing in the record — outside of Plaintiff’s assertion in her complaint — that indicates the EEOC actually issued her a right-to-sue letter. -4-

Defendants in the United States District Court for the Middle

District of North Carolina, alleging that her discharge was in

violation of Title VII and 42 U.S.C. § 1981 (“§ 1981”) and also

constituted a wrongful discharge in violation of public policy

under North Carolina law. On 6 June 2012, the federal district

court entered an order (1) dismissing with prejudice Plaintiff’s

Title VII claim against McNairy & Associates as well as her §

1981 claims against all Defendants pursuant to Rule 12(b)(6) of

the Federal Rules of Civil Procedure based on her failure to

state a claim upon which relief could be granted; (2) dismissing

without prejudice Plaintiff’s Title VII claims against Jim &

Jeanne LLC, Jim McNairy, and Jeanne McNairy for lack of subject

matter jurisdiction pursuant to Rule 12(b)(1) of the Federal

Rules of Civil Procedure; and (3) declining to exercise

supplemental jurisdiction over Plaintiff’s wrongful discharge

claims arising under North Carolina law and, therefore,

dismissing those claims without prejudice. Plaintiff appealed

the order to the United States Court of Appeals for the Fourth

Circuit, but her appeal was dismissed. Johnson v. McNairy &

Assocs., 489 F. App’x 731 (4th Cir. 2012).

On 4 June 2013, Plaintiff filed a pro se complaint in

Guilford County Superior Court against the same Defendants

asserting the same claims for relief that she had raised in her

federal lawsuit based on the same factual events. Defendants -5-

moved to dismiss Plaintiff’s complaint pursuant to Rule 12(b)(6)

of the North Carolina Rules of Civil Procedure. On 7 August

2013, the trial court entered an order (1) dismissing

Plaintiff’s Title VII claims against Jim & Jeanne LLC, Jim

McNairy, and Jeanne McNairy with prejudice pursuant to Rule

12(b)(1); and (2) dismissing all of Plaintiff’s claims with

prejudice pursuant to Rule 12(b)(6). Plaintiff filed a timely

notice of appeal to this Court.

Analysis

I. Applicability of Res Judicata as to Claim Under Title VII Against Defendant McNairy & Associates and as to § 1981 Claims Against All Defendants

“The doctrines of res judicata (claim preclusion) and

collateral estoppel (issue preclusion) are companion doctrines

which have been developed by the Courts for the dual purposes of

protecting litigants from the burden of relitigating previously

decided matters and promoting judicial economy by preventing

needless litigation.” Williams v. Peabody, 217 N.C. App. 1, 5,

719 S.E.2d 88, 92 (2011) (citation and quotation marks omitted).

In order to successfully assert the doctrine of res judicata, a litigant must prove the following essential elements: (1) a final judgment on the merits in an earlier suit, (2) an identity of the causes of action in both the earlier and the later suit, and (3) an identity of the parties or their privies in the two suits. -6-

Moody v. Able Outdoor, Inc., 169 N.C. App. 80, 84, 609 S.E.2d

259, 262 (2005).

Under North Carolina law, res judicata is an affirmative

defense, and, as a result, must ordinarily be asserted in a

responsive pleading. See N.C.R. Civ. P. 8(c). A review of the

record in this case reveals that Defendants filed only a Rule

12(b)(6) motion to dismiss and did not file an answer.

Nevertheless, “[i]f the complaint discloses an unconditional

affirmative defense which defeats the claim asserted or pleads

facts which deny the right to any relief on the alleged claim it

will be dismissed.” Sutton v. Duke, 277 N.C. 94, 102, 176

S.E.2d 161, 166 (1970).

In her complaint filed in Guilford County Superior Court,

Plaintiff acknowledged that she was refiling her entire federal

complaint in state court. She also stated that she was

attaching to her complaint “[t]he Federal Court docket including

dates of filings . . .” It is not entirely clear whether the

federal court’s order was contained among the attachments to the

complaint. However, that order is contained in the record on

appeal in this case. Moreover, Plaintiff’s appellate brief

freely acknowledges the dismissal of her federal lawsuit.

Therefore, we deem it appropriate to consider the federal

court’s order for purposes of determining the applicability of

res judicata. -7-

“Whether the doctrine of res judicata operates to bar a

cause of action is a question of law reviewed de novo on

appeal.” Mount Ulla Historical Pres. Soc'y, Inc. v. Rowan

County, ___ N.C. App. ___, ___, 754 S.E.2d 237, 240 (2014)

(citation, quotation marks, and brackets omitted). In the

present case, there is no question as to the second and third

elements of res judicata being fully established. It is

apparent on the face of the complaint that both the parties and

the claims presented are identical. Indeed, by Plaintiff’s own

admission, she simply refiled in Guilford County Superior Court

the same complaint naming the same Defendants that she filed in

federal court.

With regard to the first element, it is undisputed that the

federal court’s order dismissed with prejudice Plaintiff’s Title

VII claim as to Defendant McNairy & Associates as well as her §

1981 claims against all Defendants. Therefore, because there

was a final decision on the merits as to these claims, the first

element of res judicata — like the second and third elements —

is satisfied as to them. See Riviere v. Riviere, 134 N.C. App.

302, 306, 517 S.E.2d 673, 676 (1999) (holding that dismissal

with prejudice indicates disposition on merits precluding

subsequent litigation). Consequently, the doctrine of res

judicata serves to bar these claims and as such they were

properly dismissed by the trial court. -8-

As to Plaintiff’s remaining claims, however, the federal

court’s order specifically dismissed without prejudice

Plaintiff’s Title VII claims against Defendants Jim & Jeanne

LLC, Jim McNairy, and Jeanne McNairy as well as the claims based

upon North Carolina law. Accordingly, res judicata does not

apply to those claims. See Estate of Means v. Scott Elec. Co.,

207 N.C. App. 713, 718, 701 S.E.2d 294, 298 (2010) (recognizing

that dismissals operate as adjudication on merits unless trial

court specifies dismissal is without prejudice).

II. Title VII Claims Against Jim & Jeanne LLC, Jim McNairy, and Jeanne McNairy

The trial court ruled that it did not have subject matter

jurisdiction over the Title VII claims against Defendants Jim &

Jeanne LLC, Jim McNairy, or Jeanne McNairy and, therefore, ruled

that these claims were subject to dismissal pursuant to Rule

12(b)(1). North Carolina Rule of Civil Procedure 12(b)(1)

allows for the dismissal of a claim when a court lacks subject

matter jurisdiction. N.C.R. Civ. P. 12(b)(1). “Whether a trial

court has subject-matter jurisdiction is a question of law,

reviewed de novo on appeal.” McKoy v. McKoy, 202 N.C. App. 509,

511, 689 S.E.2d 590, 592 (2010).

Defendants Jim & Jeanne LLC, Jim McNairy, and Jeanne

McNairy argue that the trial court lacked subject matter

jurisdiction over Plaintiff’s Title VII claims against them -9-

because Plaintiff failed to exhaust her administrative remedies

in connection with these claims. “In order to have a viable

claim under Title VII, a plaintiff must exhaust available

administrative remedies, file a claim with the Equal Employment

Opportunity Commission (EEOC) in a timely fashion, obtain a

right to sue letter from the EEOC, and bring suit within 90 days

of the letter.” Paquette v. Cty. of Durham, 155 N.C. App. 415,

419, 573 S.E.2d 715, 718 (2002), disc. review denied, 357 N.C.

165, 580 S.E.2d 695 (2003). This Court has held that “[w]here a

plaintiff has failed to exhaust its administrative remedies, its

action brought in the trial court may be dismissed for lack of

subject matter jurisdiction.” Vanwijk v. Prof’l Nursing Servs.,

Inc., 213 N.C. App. 407, 410, 713 S.E.2d 766, 768 (2011).

“[R]eceipt of, or at least entitlement to, a right-to-sue

letter is a jurisdictional prerequisite that must be alleged in

a plaintiff’s complaint.” Davis v. N.C. Dep’t of Corr., 48 F.3d

134, 140 (4th Cir. 1995). In the present case, Plaintiff’s

complaint alleges that she received a right-to-sue letter from

the EEOC and that the letter was submitted by her to the federal

court. She further alleges that she has exhausted all of her

administrative remedies. Therefore, we believe the trial court

was premature in dismissing her Title VII claims pursuant to

Rule 12(b)(1).

However, the trial court also dismissed the Title VII -10-

claims against these Defendants for failure to state a claim

upon which relief can be granted under Rule 12(b)(6).

Accordingly, we must next determine whether dismissal under that

ground was appropriate.

On appeal, we review a motion to dismiss based on Rule

12(b)(6) de novo. Ventriglia v. Deese, 194 N.C. App. 344, 347,

669 S.E.2d 817, 819 (2008). We must determine whether “the

allegations of the complaint, if treated as true, are sufficient

to state a claim upon which relief can be granted under some

legal theory.” Bridges v. Parrish, 366 N.C. 539, 541, 742

S.E.2d 794, 796 (2013) (citation and quotation marks omitted).

We conclude that Plaintiff’s Title VII claims against these

remaining Defendants are barred by the doctrine of collateral

estoppel and, as a result, were properly dismissed by the trial

court.

The elements of collateral estoppel, as stated by our Supreme Court, are as follows: (1) a prior suit resulting in a final judgment on the merits; (2) identical issues involved; (3) the issue was actually litigated in the prior suit and necessary to the judgment; and (4) the issue was actually determined.

Bluebird Corp. v. Aubin, 188 N.C. App. 671, 678, 657 S.E.2d 55,

61 (citation omitted), disc. review denied, 362 N.C. 679, 669

S.E.2d 741 (2008). “Whether the doctrine of collateral estoppel

is applicable and bars a specific claim or issue is a question -11-

of law subject to de novo review.” Powers v. Tatum, 196 N.C.

App. 639, 642, 676 S.E.2d 89, 92, disc. review denied, 363 N.C.

583, 681 S.E.2d 784 (2009).

An issue is actually litigated, for purposes of collateral estoppel or issue preclusion, if it is properly raised in the pleadings or otherwise submitted for determination and is in fact determined. A very close examination of matters actually litigated must be made in order to determine if the underlying issues are in fact identical; if they are not identical, then the doctrine of collateral estoppel does not apply.

Williams, 217 N.C. App. at 6, 719 S.E.2d at 93 (internal

citations, quotation marks, and brackets omitted).

In the present case, we are satisfied that the elements of

collateral estoppel have all been met. The issues before the

trial court were identical to those before the federal district

court given that — as noted above — Plaintiff simply refiled her

original complaint in Guilford County Superior Court. The

federal district court conducted a thorough analysis of whether

Plaintiff’s allegations were sufficient to state a claim under

Title VII. The federal court ultimately concluded that

the complaint's allegations of the statements made by a coworker on a single occasion — which Plaintiff acknowledges is the complete content of the alleged incident — fail to satisfy the requirement that her belief be objectively reasonable. That is, such statements could not, as a matter of law, have constituted such severe or pervasive conduct as to constitute a hostile work environment under [Title VII]. -12-

This adjudication by the federal court of the Title VII

claim against McNairy & Associates is sufficient to trigger the

application of collateral estoppel because the Title VII claims

against Jim & Jeanne LLC, Jim McNairy, and Jeanne McNairy are

based on the identical set of facts found by the federal court

to be insufficient to state a claim under Title VII. Therefore,

based on the application of collateral estoppel, we conclude

that the trial court properly dismissed Plaintiff’s Title VII

claims against Defendants Jim & Jeanne LLC, Jim McNairy, and

Jeanne McNairy pursuant to Rule 12(b)(6).

III. Wrongful Discharge Claims Against All Defendants

Finally, Plaintiff asserts claims against all Defendants

for wrongful discharge in violation of North Carolina public

policy.

In North Carolina, employment is generally terminable by either the employer or employee for any reason where no contract exists specifying a definite period of employment. This is a bright-line rule with very limited exceptions. An at-will employee may not be terminated: (1) for refusing to violate the law at the employers [sic] request, (2) for engaging in a legally protected activity, or (3) based on some activity by the employer contrary to law or public policy.

McDonnell v. Tradewind Airlines, Inc., 194 N.C. App. 674, 677,

670 S.E.2d 302, 305 (internal citations and quotation marks

omitted), disc. review denied, 363 N.C. 128, 675 S.E.2d 657 -13-

(2009).

“To prevail on a claim for unlawful termination in

violation of public policy a plaintiff must identify a specified

North Carolina public policy that was violated by an employer in

discharging the employee.” Id. at 677-78, 670 S.E.2d at 305.

Therefore, while notice pleading is generally sufficient to

state a claim, our case law requires that wrongful discharge

claims be pled with specificity. Gillis v. Montgomery Cty.

Sheriff’s Dep’t, 191 N.C. App. 377, 379, 663 S.E.2d 447, 449,

appeal dismissed and disc. review denied, 362 N.C. 508, 668

S.E.2d 26 (2008). To meet this specificity requirement, a

plaintiff must allege “specific conduct by a defendant that

violated a specific expression of North Carolina public policy.”

Considine v. Compass Grp. USA, Inc., 145 N.C. App. 314, 321-22,

551 S.E.2d 179, 184, aff’d per curiam, 354 N.C. 568, 557 S.E.2d

528 (2001).

Plaintiff has failed to allege that Defendants’ conduct

violated any specific expression of North Carolina public

policy. Accordingly, the trial court properly dismissed

Plaintiff’s wrongful discharge claims pursuant to Rule 12(b)(6).

Conclusion

For the reasons stated above, the trial court’s order is

affirmed.

AFFIRMED. -14-

Judges CALABRIA and STROUD concur.

Report per Rule 30(e).