Link to original WordPerfect file
Link to PDF file
How to access the above link?
Return to nccourts.org
Return to the Opinions Page
All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
CARLIE BOWLING, Plaintiff, v. MARGARET R. PARDEE MEMORIAL
NO. COA 05-1497
Filed: 17 October 2006
1. Appeal and Error--appealability--interlocutory order--substantial right
Although plaintiff's appeal from the trial court's order dismissing his claim under the
North Carolina Persons with Disabilities Protection Act is an appeal from an interlocutory order
based on the fact that two claims remain at the trial level, plaintiff is entitled to immediate appeal
based on a substantial right, because: (1) plaintiff's North Carolina Disabilities Act claim and his
claim for wrongful discharge in violation of public policy, which remains at the trial court level,
unquestionably involve the same facts and circumstances; and (2) if the appeal is refused, two
trials and possibly inconsistent verdicts could result.
2. Disabilities--North Carolina Persons with Disabilities Protection Act--Americans
with Disabilities Act--Equal Employment Opportunity Commission claim
commenced--concurrent jurisdiction not allowed
The trial court did not err by dismissing plaintiff's claim under the North Carolina
Persons with Disabilities Protection Act (NC Disabilities Act) pursuant to N.C.G.S. § 168A-
11(c) after plaintiff commenced an Equal Employment Opportunity Commission (EEOC) claim,
because: (1) the General Assembly has disallowed concurrent jurisdiction over an NC
Disabilities Act claim and an Americans with Disabilities Act claim that arises out of the same
facts and circumstances; (2) plaintiff's claim was still being investigated at the EEOC at the time
of his state court filing thus making it fall within the NC Disabilities Act's language of
commenced federal administrative proceedings and thereby removing it from the subject
matter jurisdiction of the state court; and (3) the fact that defendant's motion to dismiss was not
heard until after the EEOC had issued plaintiff's right-to-sue letter was immaterial since the court
never had jurisdiction over the case at all based on the fact that it was initially filed after plaintiff
had already commenced federal administrative proceedings such that federal jurisdiction had
3. Constitutional Law--Open Courts provision_federal proceeding_surrender of state
court remedy_not violation
An employee allegedly terminated because of his disability who elected to commence a
federal proceeding with the EEOC and thus voluntarily surrendered his right to a remedy in the
state court under the N.C. Persons with Disabilities Protection Act pursuant to N.C.G.S. § 168A-
11(c) while the federal proceeding was pending was not denied access to the state courts in
violation of the Open Courts provision of N.C. Const. art. I, § 18.
Appeal by plaintiff from judgment entered 12 July 2005 by
Judge Laura J. Bridges in Superior Court, Henderson County. Heard
in the Court of Appeals 21 September 2006.
Law Offices of Glen C. Shults, by Glen C. Shults, for
Ford & Harrison, LLP, by David H. Tyner and Wade E. Ballard,for defendant-appellee.
No state court shall have jurisdiction over an action filed
under the North Carolina Persons with Disabilities Protection Act
(North Carolina Disabilities Act), where the plaintiff has
commenced federal administrative proceedings under the Americans
with Disabilities Act (ADA).
(See footnote 1)
Plaintiff argues that because he
only commenced discrimination proceedings under the ADA with the
Equal Employment Opportunity Commission (EEOC), this provision does
not bar his North Carolina Disabilities Act action. Since filing
a claim with the EEOC commences federal administrative
proceedings, we affirm the dismissal of Plaintiff's state law
Plaintiff Carlie Bowling, a licensed pharmacist, began working
for Defendant Margaret R. Pardee Memorial Hospital in January 2004.
He suffers from migraine headaches and other physical impairments
arising from service-related injuries sustained in a helicopter
crash in the mid-1980s. In July 2004, Pardee Hospital placed Mr.
Bowling on administrative leave because of certain episodes
relating to Plaintiff's job performance that caused concern about
patients' safety. Mr. Bowling was subsequently examined by the
hospital's medical director and then terminated on 12 August 2004,
after he refused to resign.
On 26 October 2004, Mr. Bowling filed a claim with the EEOC,
alleging that Pardee Hospital had discriminated against him and
terminated him because of his migraine headaches, in violation ofthe Americans with Disabilities Act (ADA).
(See footnote 2)
While the EEOC matter
was pending, Mr. Bowling brought an action in state court on 25
January 2005, asserting state law claims under the North Carolina
Disabilities Act, wrongful discharge in violation of public policy,
and negligent infliction of emotional distress. Pardee Hospital
responded by moving to dismiss on 27 April 2005. The EEOC issued
a right-to-sue letter to Mr. Bowling on 11 May 2005.
Following a hearing on Pardee Hospital's motion to dismiss ,
the trial court dismissed Mr. Bowling's claim under the North
Carolina Disabilities Act and denied Pardee Hospital's motion to
dismiss Mr. Bowling's claims of wrongful discharge in violation of
public policy and negligent infliction of emotional distress.
 Before we address the merits of Mr. Bowling's appeal from
that order, we note that his appeal is interlocutory, as the trial
court's judgment is not one which disposes of the cause as to all
the parties, leaving nothing to be judicially determined between
them in the trial court. Veazey v. City of Durham, 231 N.C. 357,
361-62, 57 S.E.2d 377, 381 (1950). Mr. Bowling has two claims
remaining at the trial level, but he argues that the dismissal of
his North Carolina Disabilities Act claim affects a substantial
right under North Carolina General Statutes §§ 1-277 and 7A-27(d),
thereby giving this Court jurisdiction to consider the
A substantial right is one affecting or involving a matter
of substance as distinguished from matters of form: a right
materially affecting those interests which a [person] is entitled
to have preserved and protected by law: a material right. Oestreicher v. American Nat'l Stores, Inc., 290 N.C. 118, 130, 225
S.E.2d 797, 805 (1976). Moreover, as previously held by this
Court, the right to avoid the possibility of two trials on the
same issues is a substantial right that may support immediate
appeal. Alexander Hamilton Life Ins. Co. of Am. v. J & H Marsh &
McClennan, Inc., 142 N.C. App. 699, 701, 543 S.E.2d 898, 900
(2001), disc. review denied, 357 N.C. 658, 590 S.E.2d 267 (2003);
see also Green v. Duke Power Co., 305 N.C. 603, 606, 290 S.E.2d
593, 595 (1982). However, [i]f there are no factual issues common
to the claim determined and the claims remaining, . . . no
substantial right is affected. Alexander Hamilton, 142 N.C. App.
at 701, 543 S.E.2d at 900.
Here, Mr. Bowling's North Carolina Disabilities Act claim and
his claim for wrongful discharge in violation of public policy,
which remains at the trial court level, unquestionably involve the
same facts and circumstances, namely, his termination by Pardee
Hospital. If we refuse his appeal, two trials and possibly
inconsistent verdicts could result. We therefore address the
merits of Mr. Bowling's arguments that the trial court erred in
dismissing his claim under the North Carolina Disabilities Act
because (I) the statute does not require dismissal of a case when
an individual files a claim with the EEOC; and (II) the dismissal
violated the Open Courts clause of the North Carolina
 Mr. Bowling first asks us to construe
N.C. Gen. Stat. §
as not requiring dismissal of a state law claim
when an EEOC claim is commenced. The cardinal principle of statutory construction is that the
intent of the legislature is controlling. State ex rel. Utils.
Comm'n v. Carolina Util. Customers Ass'n, Inc., 163 N.C. App. 46,
50, 592 S.E.2d 221, 224 (internal quotations and citation omitted),
disc. review denied, 358 N.C. 739, 602 S.E.2d 682 (2004).
Moreover, [t]he first consideration in determining legislative
intent is the words chosen by the legislature. O & M Indus. v.
Smith Eng'g Co., 360 N.C. 263, 267, 624 S.E.2d 345, 348 (2006). If
the language of a statute is clear and unambiguous, there is no
room for judicial construction and the court must give the statute
its plain and definite meaning. In re Banks, 295 N.C. 236, 239,
244 S.E.2d 386, 388 (1978). The statute should also be read as a
whole. The words and phrases of a statute must be interpreted
contextually, and read in a manner which effectuates the
legislative purpose. In re Appeal of Bass Income Fund, 115 N.C.
App. 703, 705, 446 S.E.2d 594, 595 (1994) (internal citations and
The statute at issue in this case is the North Carolina
Disabilities Act, which reads in pertinent part:
No court shall have jurisdiction over an
action filed under this Chapter where the
plaintiff has commenced federal judicial or
administrative proceedings . . . under the
Americans with Disabilities Act of 1990, . . .
involving or arising out the facts and
circumstances involved in the alleged
discriminatory practice under this Chapter.
If such proceedings are commenced after a
civil action has been commenced under this
Chapter, the State court's jurisdiction over
the civil action shall end and the action
shall be forthwith dismissed.
N.C. Gen. Stat. § 168A-11(c) (2005). Thus, the first part of the
statute prevents this State's courts from having jurisdiction overNorth Carolina Disabilities Act claims that are based on the same
facts and circumstances of an action already commenced at either
the federal administrative or judicial level; the second part then
strips this State's courts of such jurisdiction if the action is
commenced at the federal level after a North Carolina Disabilities
Act claim has already been initiated.
Taken as a whole, then, the statute prohibits a plaintiff from
commencing an action at the federal level, and then filing suit at
the state level; or, alternatively, from filing suit at the state
level and then commencing an action at the federal level. Using
clear and concise language, the General Assembly has disallowed
concurrent jurisdiction over a North Carolina Disabilities Act
claim and an ADA claim that arise out of the same facts and
Under the ADA, a claimant must exhaust his administrative
remedies by first filing a claim with the EEOC within 180 days of
the alleged unlawful employment practice. 42 U.S.C. § 2000e-
5(e)(1) (2004); see also Sheaffer v. County of Chatham, 337 F.
Supp. 2d 709, 723 (M.D.N.C. 2004). Following review by the EEOC,
if a right-to-sue letter is issued, the plaintiff has an additional
ninety days to file suit in federal court under the ADA. 42 U.S.C.
§ 2000e-5(f)(1) (2004). The North Carolina Disabilities Act has a
similar 180-day statute of limitations from when the plaintiff
becomes aware of or, with reasonable diligence, should have become
aware of the alleged discriminatory practice. N.C. Gen. Stat. §
Here, Mr. Bowling was terminated on 12 August 2004 and filed
a claim with the EEOC on 26 October 2004, within the ADA's statuteof limitations. While the EEOC was investigating his claim, Mr.
Bowling also filed suit in state court on 25 January 2005, within
the North Carolina Disabilities Act's statute of limitations.
However, because Mr. Bowling's claim was still being investigated
at the EEOC at the time of his state court filing, it fell within
the North Carolina Disabilities Act's language of commenced
federal . . . administrative proceedings, thereby removing it from
the subject matter jurisdiction of the state court. The fact that
Pardee Hospital's motion to dismiss was not heard until 27 June
2005, after the EEOC has issued Mr. Bowling a right-to-sue letter,
is immaterial; the court never had jurisdiction over the case at
all because it was initially filed after Mr. Bowling had already
commenced federal . . . administrative proceedings, such that
federal jurisdiction was attached. In addition, Mr. Bowling had an
additional ninety days after the right-to-sue letter to file suit
in federal court.
The clear meaning of the language of N.C. Gen. Stat. § 168A-
11(c) does not allow a plaintiff to file simultaneous federal and
state claims, then see which one has a better chance of being
successful. A plaintiff must either choose a single forum at the
outset and proceed accordingly, or ensure that one claim or the
other is completely concluded within the statute of limitations so
that he may move forward with the other. In light of the
provisions of the ADA, the short statute of limitations prescribed
for the North Carolina Disabilities Act by our General Assembly
suggests its intent to allow a plaintiff a remedy at either the
state or federal levels, but not both. Accordingly, we hold that
N.C. Gen. Stat. § 168A-11(c)
requires dismissal of a state lawclaim when an EEOC claim is commenced.
 Along these lines, we find Mr. Bowling's argument that the
Open Courts clause of the North Carolina Constitution requires that
he have recourse to the state courts for his North Carolina
Disability Act claim to be without merit.
The Open Courts clause provides that, All courts shall be
open; every person for an injury done to him in his lands, goods,
person, or reputation shall have remedy by due course of law . . .
N.C. Const. art. I, § 18. Nevertheless, as our Supreme Court has
noted in the past, [t]he legislature has the power to define the
circumstances under which a remedy is legally cognizable and those
under which it is not. Lamb v. Wedgewood South Corp.
, 308 N.C.
419, 444, 302 S.E.2d 868, 882 (1983). This Court has likewise held
that a statute does not violate the Open Courts clause if it does
not deny litigants access to North Carolina courts, but merely
litigation here pending the resolution of the same matter
in another sovereign court. Lawyers Mut. Liab. Ins. Co. v. Nexsen
Pruet Jacobs & Pollard
, 112 N.C. App. 353, 358, 435 S.E.2d 571, 574
(1993) (internal quotations and citation omitted).
In the instant case, Mr. Bowling was not denied access to nor
barred from the North Carolina courts. Rather, he elected to
commence federal administrative proceedings, thereby voluntarily
surrendering his right to a remedy in state court, so long as those
federal proceedings were pending. The North Carolina courts were
open to Mr. Bowling; he chose not to avail himself of them for his
North Carolina Disabilities Act claim. In conclusion, we affirm the trial court's dismissal of Mr.
Bowling's claim under the North Carolina Disabilities Act.
Judges McGEE and McCULLOUGH concur.
42 U.S.C. §§ 12101 et seq.
*** Converted from WordPerfect ***