An unpublished opinion of the North Carolina Court of Appeals does not constitute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)
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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
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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.
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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
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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.
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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.
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“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.
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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
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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
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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
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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].
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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
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(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.
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Judges CALABRIA and STROUD concur.
Report per Rule 30(e).