PATRICIA ANN GIBBS,
Plaintiff,
v
.
Guilford County
No. 00 CvS 5926
GUILFORD TECHNICAL
COMMUNITY COLLEGE,
Defendant.
Hicks McDonald LLP, by David W. McDonald, for plaintiff-
appellee.
Smith Helms Mulliss & Moore, L.L.P., by Julie C. Theall and
Shannon J. Adcock, for defendant-appellant.
EAGLES, Chief Judge.
Patricia Ann Gibbs, (“plaintiff”), initiated this action
against her employer, Guilford Technical Community College
(“defendant”), alleging wrongful termination, breach of contract
and infliction of emotional distress. Defendant appeals from the
denial of defendant's motion to dismiss for prior action pending.
After careful consideration of the briefs and record, we affirm.
Plaintiff was born with cerebral palsy, “a potentially
disabling neurological condition.” Plaintiff earned a Bachelor of
Arts degree in Elementary Education from Guilford College in 1969,
a Master of Library Science degree from the University of NorthCarolina at Greensboro in 1976, and a Master's Degree in Special
Education from George Washington University in 1982.
Plaintiff began working for defendant in 1982 as a Library
Assistant at defendant's Washington Street campus. In March 1987,
defendant transferred plaintiff to the library at the Jamestown
campus. Plaintiff's new position required her to handle paperwork.
Defendant provided plaintiff with a typewriter after receiving a
request from plaintiff. In August 1987, defendant transferred
plaintiff to the Literacy Department at the Greensboro campus.
Plaintiff was responsible for teaching a class of “mentally
challenged adults.” In 1990, plaintiff taught at an off-campus
site in Greensboro and was provided enlarged attendance forms by
defendant. Plaintiff assisted with the testing of students in
1992. In December 1996, defendant assigned plaintiff to teach
“high functioning mentally retarded adults 10 hours per week” which
increased to 25 hours per week in early 1997. Defendant sent
plaintiff a “Notice of Suspension and Nonrenewal” on 7 April 1997.
The reasons for this action stated in the notice were:
“inappropriate interaction with the students in [plaintiff's]
class” and “inappropriate to have [plaintiff's sister-in-law] work
with those student records without proper authorization.”
Plaintiff filed a complaint pro se in the United States
District Court for the Middle District of North Carolina on 13
March 1998. Initially, plaintiff alleged violations of the
Rehabilitation Act of 1973 and the Americans with Disabilities Act
as well as alleging sexual harassment and wrongful dismissal. Anamended complaint filed 2 June 2000 alleged that the “action is
brought under the American[s] with Disabilities Act (ADA) 42 U.S.C.
12101, et. seq., in that it is a lawsuit for damages for wrongful
termination and failure to accommodate the disabilities of the
plaintiff.”
Plaintiff then commenced a state action against defendant on
6 April 2000. Plaintiff alleged wrongful termination, breach of
contract, and infliction of emotional distress. Defendant filed to
remove the action to Federal District Court. Plaintiff moved to
remand the matter to Guilford County Superior Court which was
unopposed by defendant.
On 17 August 2000, defendant moved to dismiss this action
pursuant to Rule 12(b)(6) and based on the fact that there was a
prior action pending. The motion to dismiss was heard at the 18
September 2000 civil session of Guilford County Superior Court
before Judge Michael E. Helms. By written order filed 21 September
2000, Judge Helms denied defendant's motion to dismiss for prior
action pending, denied defendant's motion for a stay, and noted
that defendant's Rule 12(b)(6) motion had been withdrawn.
Defendant appeals.
Defendant raises two issues on appeal: whether the trial
court's denial of defendant's motion to dismiss affected a
substantial right to support an interlocutory appeal, and whether
the trial court erred in denying defendant's motion to dismiss on
the basis of prior action pending. After careful review, we
affirm. First, defendant contends that the trial court's denial of
defendant's motion to dismiss affected a substantial right which in
turn would support an interlocutory appeal. On this record, we
agree.
“A denial of a motion to dismiss on the ground that there is
a prior pending action is immediately appealable.” Stevens v.
Henry, 121 N.C. App. 150, 154, 464 S.E.2d 704, 707 (1995). See
also Winston-Salem Joint Venture v. Cathy's Boutique, 72 N.C. App.
673, 674, 325 S.E.2d 286, 287 (1985); Atkins v. Nash, 61 N.C. App.
488, 489, 300 S.E.2d 880, 881 (1983). But see Allen v. Trust Co.,
35 N.C. App. 267, 268-69, 241 S.E.2d 123, 124 (1978); Acorn v.
Knitting Corp., 12 N.C. App. 266, 267-68, 182 S.E.2d 862, 863,
cert. denied, 279 N.C. 511, 183 S.E.2d 686 (1971).
Second, defendant contends the trial court erred in denying
defendant's motion to dismiss based on the defense of prior action
pending. We disagree.
Defendant argues that the trial court should have dismissed
this action because an action arising out of the same events had
already been brought by plaintiff in federal court more than two
years earlier. “The authorities are legion in North Carolina that
the pending of a prior action between the same parties for the same
cause of action in a court of competent jurisdiction works an
abatement of a subsequent action either in the same court or
another court of the same state having jurisdiction.” Shore v.
Brown, 324 N.C. 427, 429, 378 S.E.2d 778, 779 (1989). “[A] prior
action pending in a federal court within the territorial limits ofthe state constitutes grounds for abatement of a subsequent state
action on substantially similar grounds between the same parties.”
Eways v. Governor's Island, 326 N.C. 552, 561, 391 S.E.2d 182, 187
(1990). Defendant contends that the parties, subject matter,
issues and relief sought are substantially identical in both
actions so a motion to dismiss was proper. See Clark v. Craven
Regional Medical Authority, 326 N.C. 15, 21, 387 S.E.2d 168, 172
(1990). We are not persuaded.
“In determining whether the parties and causes are the same
for the purpose of abatement by reason of the pendency of the prior
actions, the ordinary test is this: 'Do the two actions present a
substantial identity as to parties, subject matter, issues involved
and relief demanded.'” State ex rel. Onslow County v. Mercer, 128
N.C. App. 371, 375, 496 S.E.2d 585, 588 (1998) (citations omitted).
Here, there is no dispute that the parties and relief sought
are substantially similar. The issues and subject matter in
plaintiff's state claim are not identical or substantially similar
to those in her federal action.
The subject matter of the two actions are not substantially
similar. Plaintiff alleged wrongful termination and failure to
accommodate the disabilities of plaintiff under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. 12101 et seq., in her federal
claim. While in her state claim, plaintiff alleged wrongful
termination in violation of public policy, breach of contract and
infliction of emotional distress. The wrongful termination
allegation in plaintiff's state action provides: “[d]efendantterminated plaintiff's employment in violation of the public policy
of the State of North Carolina, because of plaintiff's age and
because of plaintiff's handicap.” Plaintiff further alleges that
the public policy violated by defendant is provided in North
Carolina's “Equal Employment Practices Act,” which 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.
G.S. § 143-422.2.
G.S. Chapter 168A, the “North Carolina Persons With
Disabilities Protection Act,” has been found to be analogous with
the ADA. See Stroud v. Harrison, 131 N.C. App. 480, 508 S.E.2d 527
(1998), disc. review denied, 350 N.C. 107, 534 S.E.2d 212 (1999).
Plaintiff makes no claim under G.S. Chapter 168A in her state
action. The ADA is the subject matter for plaintiff's claim in her
federal action while her state action is based on a provision of
North Carolina's “Equal Employment Practices Act,” G.S. § 143-422.1
et seq. This claim is distinguishable from a claim under G.S.
Chapter 168A. See Simmons v. Chemol Corp., 137 N.C. App. 319, 323,
528 S.E.2d 368, 371 (2000). For similar reasons, the federal and state actions differ with
respect to the issues presented. The issues in the federal action
involve whether defendant violated the ADA in dismissing plaintiff
from employment and failing to accommodate plaintiff's condition.
Whereas the issues in the state action involve whether, in
dismissing plaintiff, defendant violated the public policy of North
Carolina, breached a contract, and inflicted emotional distress.
We conclude that the trial court properly denied defendant's
motion to dismiss on the basis of prior action pending. While we
are aware of this Court's recent decision in Kelly v. Carteret
County Board of Education, __ N.C. App. __, __ S.E.2d __ (Mar. 5,
2002) (No. COA01-468), we do not find it controlling here. In
Kelly, the issue before this Court was “whether 'all the
allegations forming the gravamen of Plaintiff's complaint fall'
within the scope of a disability discrimination claim.” Id. at __,
__ S.E.2d at __. The plaintiff in Kelly alleged that “she was
wrongfully terminated in violation of the public policy of North
Carolina that 'all people . . . hold employment without
discrimination on the bases of handicap or disability' and 'that
the safety of persons and property on or near the public highways
be protected.'” Id. at __, __ S.E.2d at __. Kelly held that “as
the 'gravamen' of Plaintiff's complaint is based on her disabling
condition, and not on her refusal to violate public policy,
Plaintiff's complaint only sets forth an injury based on a
discrimination claim.” Id. at __, __ S.E.2d at __. However, the
scope of Kelly was limited to a review of “the trial court'sdismissal of [plaintiff's] claim for wrongful termination in
violation of the public policy of North Carolina to protect the
safety of persons and property.” Id. at __ n.1, __ S.E.2d at __.
Kelly did not discuss nor involve G.S. § 143-422.2 as the basis for
a public policy violation.
Our Supreme Court held in Amos v. Oakdale Knitting Co., 331
N.C. 348, 416 S.E.2d 166 (1992), that:
[a]lthough the definition of “public policy”
approved by this Court does not include a
laundry list of what is or is not “injurious
to the public or against the public good,” at
the very least public policy is violated when
an employee is fired in contravention of
express policy declarations contained in the
North Carolina General Statutes.
Id. at 353, 416 S.E.2d at 169 (footnote omitted). Here, plaintiff
alleged she was “fired in contravention of express policy
declarations contained in the North Carolina General Statutes.”
Id. This express declaration is in the “Equal Employment Practices
Act,” G.S. § 143-422.1 et seq.
Since we uphold the trial court's decision in favor of
plaintiff, we need not address plaintiff's cross-assignments of
error.
Accordingly, the decision of the trial court is affirmed.
Affirmed.
Judges McCULLOUGH and CAMPBELL concur.
Report per Rule 30(e).
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