Appeal by plaintiff from judgment filed 27 December 2001 by
Judge William Z. Wood, Jr. in Guilford County Superior Court.
Heard in the Court of Appeals 19 May 2003.
Jerry R. Everhardt for plaintiff appellant.
County Attorney Jonathan V. Maxwell and Assistant County
Attorney Kevin W. Whiteheart, for defendant appellees.
Sandra B. Wilkins (plaintiff) appeals a judgment filed 27December 2001 granting summary judgment in favor of Guilford
County, Guilford County Department of Social Services (DSS), and
DSS director John W. Shore (Shore) (collectively defendants).
In her complaint filed 18 December 2000, plaintiff, a former
DSS employee, alleged that the performance deficiencies cited by
DSS as grounds for her 14 January 2000 dismissal were caused by
side effects from an increased dosage of the drug Adderall
prescribed to her for attention deficit disorder (ADD).
Consequently, plaintiff claimed DSS' actions were in violation of
42 U.S.C. § 12101, et seq. of the Americans with Disabilities Act
(ADA), 29 U.S.C. § 794 of the Rehabilitation Act of 1973, N.C. Gen.
Stat. § 168A-5 (North Carolina's Persons with Disabilities
Protection Act), 42 U.S.C. § 1983 for due process violations under
the United States and North Carolina constitutions, and the public
policy of this State. Defendants filed an answer dated 16 February
2001 denying liability, accompanied by a motion to dismiss under,
inter alia, Rule 12(b)(6) for failure to state a claim upon which
relief could be granted. Following discovery, defendants again
moved to dismiss the case and, in the alternative, moved the trial
court for summary judgment in their favor.
The pleadings, depositions, and affidavits filed in this
action reveal that plaintiff consulted her physician, Dr. Mary John
Baxley, in December 1997 claiming she was suffering from ADD. Dr.
Baxley accepted plaintiff's self-report [of ADD] as [her]
diagnosis [of plaintiff] because plaintiff knew quite a bit about
attention deficit disorder, and it seemed to be reasonable. Dr.Baxley initially prescribed plaintiff an anti-depressant but placed
her on Ritalin in May 1998. In May 1999, Dr. Baxley referred
plaintiff to psychiatrist Dr. Brian Andrew Farah with an existing
diagnosis of ADD and a history of depression. At this time,
plaintiff was not using Ritalin. Plaintiff told Dr. Farah she had
responded to Ritalin in the past and wanted to go back on
stimulants. Dr. Farrah recommended that plaintiff start using
Adderall instead of Ritalin because, in his opinion, there [is]
a rebound effect . . . often see[n] when Ritalin runs out that is
not as severe with Adderall. The initial dosage prescribed to
plaintiff was for ten milligrams a day, but Dr. Farah instructed
plaintiff to monitor the effect of the Adderall according to the
ADD symptoms she was experiencing and allowed her to increase her
dosage up to 40 milligrams a day if needed. During a follow-up
visit on 14 June 1999, plaintiff told Dr. Farah she was using the
maximum dosage prescribed by him. She reported that the target
symptoms of [c]oncentration, focus, ability to stay on task,
inattentiveness, [and] distractibility [sic] had improved and that
she was not experiencing any negative side effects. Plaintiff also
indicated she was experiencing fewer mood swings. Based on this
information, Dr. Farah continued plaintiff's prescription for
Adderall at 40 milligrams per day.
Plaintiff saw Dr. Farah again in October 1999, at which time
plaintiff reported several stress factors affecting her such as a
loan agreement entered into by her husband and her mother's
suffering from Alzheimer's disease. Dr. Farah noted the increased
stress level, but because the Adderall appeared to be effective andplaintiff neither indicated nor exhibited any side effects, Dr.
Farah continued plaintiff on the same dosage. It was only after
plaintiff's employment was terminated that she complained to Dr.
Farah that the Adderall was affecting her mood and consequently
must have impacted her work performance. Following the filing of
plaintiff's complaint, plaintiff's expert, Dr. C. Keith Connors,
evaluated plaintiff and concluded that she probably suffered from
attention deficit hyperactivity disorder (ADHD).
Plaintiff had been employed by the County since 1983. On 1
May 1999, plaintiff transferred to and began working as a social
worker in the DSS adult services unit. On 19 July 1999, plaintiff
received an initial performance evaluation with a score of four out
of five points, five being the highest rating. Five months later,
however, plaintiff's performance score had slipped to a two,
meaning her work [was] below job expectations in several areas.
Following this evaluation, plaintiff's supervisor, on 17 December
1999, recommended plaintiff's dismissal from DSS based on
insubordinate behavior, unwillingness or inability to get along
with people, and a lack of compassion and sensitivity toward
clients. When plaintiff was notified of this recommendation, she,
for the first time, thought [that] maybe the medicine [(Adderall)]
was [not] working like [it should] and requested accommodations
for her ADD. Plaintiff also requested and was granted a conference
hearing with Shore to contest the recommendation. In a letter
dated 3 January 2000, plaintiff informed Shore that her ADD
medication could cause loss of appetite, nervousness, [and]difficulty sleeping. In support of her claim, plaintiff, at the
conference hearing, presented a list of possible side effects from
Adderall as given to her by her pharmacy but did not argue that the
medication caused the deficiencies cited in the recommendation for
dismissal. Shore subsequently terminated plaintiff's employment
with DSS effective 14 January 2000.
At the hearing on defendants' motions to dismiss and for
summary judgment, plaintiff conceded she had no claim against
defendants under N.C. Gen. Stat. § 168A-5, which relates to
employment discrimination, and no claim against Shore in his
individual capacity under the ADA and the Rehabilitation Act but
maintained she was entitled to relief under the remaining causes of
action raised in her complaint. Finding that there were no genuine
issues of fact and that defendants were entitled to judgment as a
matter of law, the trial court granted the summary judgment motion
on 27 December 2001.
The dispositive issues are whether: (I) plaintiff suffered
from a disability and (II) plaintiff had a property interest in her
Summary judgment is proper if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that any party is entitled to a judgment as
a matter of law. N.C.G.S. § 1A-1, Rule 56(c) (2001). The burden
is on the summary judgment movant to establish the lack of anytriable factual issue. Trexler v. Norfolk S. Ry. Co.
, 145 N.C.
App. 466, 469, 550 S.E.2d 540, 542 (2001).
The movant may meet its burden by: (1)
demonstrating that an essential element of the
plaintiff's claim is nonexistent; (2)
establishing through discovery that the
plaintiff cannot produce evidence to support
an essential element of the claim; or (3)
showing that plaintiff cannot survive an
affirmative defense, such as governmental
 Plaintiff first argues the trial court erred in granting
defendants' motion for summary judgment because there were genuine
issues of material fact as to whether she suffered from a
disability under the ADA and the Rehabilitation Act.
The ADA prohibits discrimination against qualified individuals
with a disability, 42 U.S.C. § 12112(a) (2003), disability being
defined as either (1) a physical or mental impairment that
substantially limits one or more of the major life activities of
such individual, (2) a record of such an impairment, or (3)
being regarded as having such an impairment, 42 U.S.C. § 12102(2)
(2003). For purposes of proving a disability, the Rehabilitation
Act of 1973 . . . is interpreted substantially identically to the
ADA, Katz v. City Metal Co., Inc.
, 87 F.3d 26, 31 n.4 (1st Cir.
1996); see EEOC v. Amego
, 110 F.3d 135, 144 (1st Cir. 1997); thus
the same case law applies.
In this case, plaintiff only argues disability as defined by
a physical or mental impairment that substantially limits one or
more . . . major life activities. 42 U.S.C. § 12102(2)(A) (2003).
She claims that her mental impairment of ADD/ADHD coupled with thenegative side effects from the increased dosage of Adderall
substantially limited the major life activity of working, resulting
in her wrongful termination from DSS. See Sutton v. United
, 527 U.S. 471, 480, 144 L. Ed. 2d 450, 461 (1999)
(working is a major life activity); but see
29 C.F.R. §
1630.2(j)(3)(i) (2003) (The term substantially limits means
significantly restricted in the ability to perform either a class
of jobs or a broad range of jobs in various classes as compared to
the average person . . . . The inability to perform a single,
particular job does not constitute a substantial limitation in the
major life activity of working.). Assuming plaintiff suffers from
a mental impairment, see Bercovitch v. Baldwin Sch., Inc.
, 133 F.3d
141, 155 n.18 (1st Cir. 1998) (questioning whether ADHD qualifies
as a mental impairment under the ADA), we must first consider
whether a person qualifies as disabled if the underlying impairment
is controlled by medication but the medication, because of negative
side effects, creates substantial limitations under the Act.
, the United States Supreme Court held, [a] person
whose physical or mental impairment is corrected by medication or
other measures does not have an impairment that presently
'substantially limits' a major life activity. Sutton
, 527 U.S. at
482-83, 144 L. Ed. 2d at 462. The Supreme Court, however, also
stated that if a person is taking measures to correct for, or
mitigate, a physical or mental impairment, the effects of those
measures -- both positive and negative -- must be taken into
account when judging whether that person is 'substantially limited'
in a major life activity and thus 'disabled' under the Act. Id
.at 482, 144 L. Ed. 2d at 462. Accordingly, the negative effects of
treatment measures for an impairment, including the side effects of
medication, must be considered in determining whether a disability
exists. See Nawrot v. CPC Int'l
, 277 F.3d 896, 904 (7th Cir. 2002)
(courts may consider only the limitations of an individual that
persist after taking into account mitigation measures (e.g.,
medication) and the negative side effects of the measures used to
mitigate the impairment); Taylor v. Phoenixville Sch. Dist.
F.3d 296, 309 (3d Cir. 1999) (considering the severe side effects
of the plaintiff's medication for her bipolar and manic depressive
disorders for purposes of finding disability); Treiber v. Lindbergh
, 199 F. Supp. 2d 949, 960 (E.D.Mo. 2002) (although
chemotherapy for the plaintiff's breast cancer affected her ability
to have children, plaintiff did not assert any interest in having
children and, therefore, that side-effect of her treatment did not
render her disabled under the ADA).
Our analysis thus turns to whether plaintiff's ability to work
was substantially limited by side effects from her ADD medication
(1) The term substantially limits means:
(i) Unable to perform a major life activity
that the average person in the general
population can perform; or
(ii) Significantly restricted as to the
condition, manner[,] or duration under which
an individual can perform a particular major
life activity as compared to the condition,
manner, or duration under which the average
person in the general population can perform
that same major life activity.
29 C.F.R. § 1630.2(j)(1) (2003). In this case, there is noevidence plaintiff was unable, due to side effects from Adderall,
to perform a major life activity, i.e. work, that an average person
could perform. From the time plaintiff started taking Adderall
until after she lost her position with DSS, she never reported any
side effects to her doctor, and her doctor did not observe any side
effects during any of plaintiff's office visits, including after
plaintiff's termination. Plaintiff also made no requests for ADA
accommodations based on ADD until 17 December 1999, the date she
was recommended for termination. Moreover, plaintiff had been
taking the increased dosage of 40 milligrams of Adderall per day
for at least a month prior to her first performance evaluation at
DSS on 19 July 1999 on which she received the second-highest
rating. This tends to indicate that the use of the drug had no
impact on plaintiff's job performance and that other, non-drug-
related factors contributed to the decline in her work performance
leading to her poor evaluation in December 1999 and subsequent
termination from DSS. As we see nothing in this record to
substantiate plaintiff's disability claim, the trial court did not
err in granting defendants' summary judgment motion with respect to
this claim. See Trexler
, 145 N.C. App. at 469, 550 S.E.2d at 542
(summary judgment proper if an essential element of the plaintiff's
claim is nonexistent).
 We next consider whether summary judgment was proper as to
plaintiff's section 1983 claim.
Section 1983 provides in pertinent part that:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage of anyState or Territory or the District of
Columbia, subjects, or causes to be subjected,
any citizen of the United States or other
person within the jurisdiction thereof to the
deprivation of any rights, privileges, or
immunities secured by the Constitution and
laws, shall be liable to the party injured in
an action at law, suit in equity, or other
proper proceeding for redress . . . .
42 U.S.C. § 1983 (2003).
In the case sub judice
, plaintiff argues her property rights
under the due process clauses of the United States and North
Carolina constitutions were violated because DSS failed to comply
with the warning requirements set forth in Regulation 28 of the
Guilford County Personnel Regulations, which deals with
disciplinary action, including the dismissal of Guilford County
personnel. We disagree.
The procedural safeguards encompassed by the due process
clause extend to [an employee's] continued employment only if she
had a property interest in that employment, Pittman v. Wilson
, 839 F.2d 225, 226 (4th Cir. 1988), and absent a contractual
agreement specifying a definite period of employment, only [a]
statute or ordinance may create a property interest in continued
employment, Kearney v. County of Durham
, 99 N.C. App. 349, 351,
393 S.E.2d 129, 130 (1990); see Pittman
, 839 F.2d at 227 (absent
a contractual guarantee, an exception to the 'employee-at-will'
rule specifically is recognized under North Carolina law when a
statute or ordinance provides for restrictions on the discharge of
an employee); Presnell v. Pell
, 298 N.C. 715, 723, 260 S.E.2d 611,
616 (1979). In Kearney
, this Court further held that [i]n the
absence of evidence that [a] resolution was adopted with the sameformality and characteristics of an ordinance, it is insufficient
to create a property interest analogous to that of a statute or
, 99 N.C. App. at 352, 393 S.E.2d at 130; see
, 839 F.2d at 227-29.
Generally, measures that prescribe binding rules of conduct
are ordinances while measures that relate to administrative or
housekeeping matters are categorized as resolutions. Kearney
N.C. App. at 351-52, 393 S.E.2d at 130 (citation omitted) (internal
quotations omitted). Like a statute, an ordinance is a law
binding on all concerned. Therefore, certain important procedures
generally are prescribed for its adoption. These normally require
a prescribed record vote, a public hearing, and published notice.
, 839 F.2d at 228 n.7.
In this case, the minutes of the Board of Commissioners
indicate that the Board specifically adopted the Guilford County
Personnel Regulations, including Regulation 28, by resolution
not by ordinance for the purpose of providing a lawful, orderly
and fair system of personnel administration
for Guilford County
(emphasis added). The Board thus expressly conveyed its intention
to adopt a resolution on administrative matters regarding the
County personnel. See Kearney
, 99 N.C. App. at 351-52, 393 S.E.2d
at 130. While the minutes further state that the regulations may
be supplemented or amended by the Board from time to time as
necessary, there is no provision requiring formalities such as a
prescribed record vote, a public hearing, and published notice.
, 839 F.2d at 228 n.7. As there is thus no evidence that
Regulation 28 was adopted with the same formality andcharacteristics of an ordinance, Kearney
, 99 N.C. App. at 352, 393
S.E.2d at 130, plaintiff did not acquire a property interest in her
employment with DSS and the trial court properly granted summary
judgment to defendants on plaintiff's section 1983 claim based on
due process violations.
Chief Judge EAGLES and Judge LEVINSON concur.
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