Johnson v. Board of Trustees of Durham Technical Community College

• Citation: 157 NC App. 38,577 S.E.2d 670
• Decision Date: 01 April 2003
• Docket Number: No. COA02-356.,COA02-356.
• Parties: Susan F. JOHNSON, Plaintiff, v. BOARD OF TRUSTEES OF DURHAM TECHNICAL COMMUNITY COLLEGE, Defendant.
• Court: Court of Appeal of North Carolina (US)

577 S.E.2d 670

157 NC App. 38

Susan F. JOHNSON, Plaintiff, v. BOARD OF TRUSTEES OF DURHAM TECHNICAL COMMUNITY COLLEGE, Defendant.

No. COA02-356.

Court of Appeals of North Carolina.

April 1, 2003.

Glenn, Mills & Fisher, P.A., by Stewart W. Fisher, Durham, for plaintiff-appellant.

Haywood, Denny & Miller, L.L.P., by George W. Miller, III and George W. Miller, Jr., Durham, for defendant-appellee.

The North Carolina Academy of Trial Lawyers, by Lynn Fontana, Durham, and the American Civil Liberties Union of North Carolina, by Seth H. Jaffe, Raleigh, amicus curiae.

STEELMAN, Judge.

This appeal arises out of a disability discrimination claim filed by Susan F. Johnson ("plaintiff" or "Johnson") against the Trustees of Durham Technical Community College ("defendant" or "Durham Tech") under the North Carolina Persons with Disabilities Protection Act ("NCPDPA"), N.C. Gen.Stat. § 168A-1, et seq. (2001). Plaintiff appeals the trial court's judgment dismissing her claim with prejudice and awarding her no costs, attorney's fees or other relief. For reasons stated herein, the judgment is reversed, and this case is remanded to the trial court.

Since contracting polio as a young child, plaintiff has been unable to walk without crutches, and her physical activity has been substantially limited. In 1986, after teaching full-time for several years, plaintiff's disability forced her to quit working on a full-time basis, although she remained able to teach on a part-time basis.

In 1993, plaintiff began working with Durham Tech's Adult and Basic Skills Department as a part-time instructor for the in-house education program for inmates of the Durham County Jail Annex ("the jail"). Russ Conley ("Conley"), program director for Durham Tech's Adult and Basic Skills Department, contracted with plaintiff and supervised her work.

Plaintiff taught classes which prepared inmates to take their high school equivalency exam under her first contract with Durham Tech from November 1993 to February 1994. She entered seven additional part-time teaching contracts with Durham Tech between February 1994 and June 1995. Each of these contracts was for a specific term determined by the duration of the class taught by plaintiff.

Plaintiff initially was able to drive herself to and from work and to enter the jail using only her crutches. On 8 June 1994, plaintiff fell from her crutches as she attempted to open the security door to enter the jail and broke her back. Plaintiff applied for and received workers' compensation benefits for her injuries resulting from this fall. While recovering, plaintiff did not return to work, and defendant found a replacement teacher to fulfill the remainder of plaintiff's contract ending in August 1994.

When plaintiff returned to work for defendant under a new contract in January 1995, she was confined to a wheelchair at all times. She used wheelchair-accessible public transportation to travel to and from work at the jail and taught classes from her wheelchair. Although jail guards occasionally escorted plaintiff and helped her open doors, she generally was able to enter the jail and her classroom without assistance.

On 11 February 1995, plaintiff fell in the bathtub at her home and broke her leg. She returned to work at the jail approximately two weeks later and resumed her teaching duties from her wheelchair.

In the spring of 1995, Art Clark ("Clark"), Dean of Adult and Continuing Education at Durham Tech, and Ruth Lewis ("Lewis"), Conley's direct supervisor, discussed with Conley their concerns about plaintiff's safety and Durham Tech's liability if she were to suffer another accident at the jail. Conley also had some concerns at this time about plaintiff's prior absenteeism due to her injuries. Clark encouraged Conley to speak with plaintiff and to consider whether it would be appropriate for her to continue working at the jail in light of her previous fall.

On 16 June 1995, Conley met with plaintiff and discussed with her other teaching opportunities with Durham Tech that were not at the jail. Plaintiff was "not receptive" to these other teaching positions. Conley then informed plaintiff that "the situation had proved to be a liability for Durham Tech" and that she would not be returning to work for defendant at the jail. Conley testified that Clark had made the decision not to re-hire plaintiff and that Lewis had concurred with this decision.

Between 21 June and 24 June 1995, Clark received anonymous phone calls alleging that plaintiff was a frequent drug user, had engaged in sexual relationships with prisoners, had provided prisoners with drugs and bullets and frequently carried a loaded weapon. On 26 June 1995, Conley spoke to plaintiff at the jail and informed her that her teaching position with Durham Tech would end when her contract expired on 28 June 1995. Defendant did not offer her another teaching position.

Plaintiff filed discrimination charges against defendant with the North Carolina Department of Labor under the North Carolina Retaliatory Employment Discrimination Act ("REDA"), N.C. Gen.Stat. § 95-240, et seq. (2001), and with the Equal Employment Opportunity Commission under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. (2002). After exhausting her administrative remedies, plaintiff filed a complaint alleging defendant refused to re-hire her in violation of REDA and the ADA.

On 23 December 1997, Durham County Superior Court Judge Henry V. Barnette partially granted defendant's motion for summary judgment and dismissed plaintiff's REDA claim. On 18 December 1998, Durham County Superior Court Judge Narley L. Cashwell granted defendant's motion for directed verdict as to plaintiff's ADA claim.

Plaintiff appealed both the summary judgment and directed verdict rulings. A unanimous panel of this Court affirmed Judge Barnette's order granting defendant's summary judgment motion based on plaintiff's retaliatory discharge claim under REDA, reversed Judge Cashwell's decision directing a verdict based on plaintiff's ADA claim and remanded the case for further proceedings consistent with its opinion. Johnson v. Trustees of Durham Tech. Cmty. Coll., 139 N.C.App. 676, 535 S.E.2d 357 ("Johnson I"), disc. review denied and appeal dismissed, 353 N.C. 265, 546 S.E.2d 102 (2000).

Plaintiff amended her complaint to add a claim under the NCPDPA alleging defendant failed to re-hire her on the basis of her disability in violation of N.C. Gen.Stat. § 168A-5(a)(1). On 29 May 2001, plaintiff and defendant filed a stipulation in which plaintiff voluntarily dismissed her claims under the ADA and defendant waived the statute of limitations defense to plaintiff's claim under the NCPDPA. This matter was tried without a jury in accordance with N.C. Gen.Stat. § 168A-11(a).

On 12 September 2001, Durham County Superior Court Judge Howard E. Manning, Jr., filed a judgment dismissing plaintiff's action with prejudice. The judgment contained lengthy findings of fact and conclusions of law, including the following:

During the [s]pring of 1995, Conley became concerned about Johnson's safety in the jail, and also became concerned about whether he was putting Ms. Johnson in a situation which might prove to be a liability for [Durham Tech]. Conley's concern was "prompted" as a result of discussions with either Ruth Lewis or Dean Art Clark during the spring of 1995. Neither Lewis nor Clark went to the jail or conducted an investigation first hand with respect to Johnson's ability to function safely in a wheelchair while carrying out her teaching responsibilities.

In the spring[][of] 1995[,] Conley, after talking with Dean Clark and/or Lewis, broached the subject with Johnson about teaching elsewhere than at the jail. Johnson did not want to teach elsewhere[,] and Conley did not push the issue. Dean Clark and Lewis wanted Johnson out of the jail environment and wanted her to teach elsewhere for Durham Tech. Their view was "paternalistic" and not based on an investigation into the conditions at the jail or Johnson's ability to teach there despite her disability. While Dean Clark did not order Conley to move Johnson from the jail and put her somewhere else, he strongly "suggested" it to Conley. They [Dean Clark and Lewis] left the unpleasant task of carrying out the "suggestion"... and the placement of Johnson in a teaching position outside of jail to Conley. The decision of Clark to be carried out by Conley was made solely on the basis of Johnson's disability and was not based on poor job performance or absences occasioned by her disability or health.

...

On June 16, 1995, Conley met with Johnson at his office to discuss Johnson's teaching at the jail....

...

Conley was not going to offer Johnson a contract that would permit her to remain and teach at the jail. The basis for Conley's decision was that his superiors at Durham Tech were concerned about "liability" should Johnson continue to teach there. This concern was based solely upon her disability and was without basis in fact. The jail was no more "unsafe" for Johnson than any other place because she was able to function at the facility safely and to do her job there as she had done since January 1995, without incident. The decision to not offer Johnson another contract to teach a[t] the jail had been made as of June 16, 1995, but not implemented or carried out, as the contract period had not expired and there was still time for Johnson to attempt to get Durham Tech to reverse its decision. Conley, her immediate supervisor and department head, was not going to offer her a contract to teach at the jail after the present contract expired. (emphasis added).

I.

In her first assignment of error, plaintiff contends that the trial court erred in failing to apply the United States Supreme Court decision in McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995), to her employment discrimination claim under the...