Johnson v. DURHAM TECHNICAL COLLEGE

• Decision Date: 29 August 2000
• Docket Number: No. COA99-676.,COA99-676.
• Citation: 139 NC App. 676,535 S.E.2d 357
• Parties: Susan F. JOHNSON, Plaintiff, v. The TRUSTEES OF DURHAM TECHNICAL COMMUNITY COLLEGE, Defendant.
• Court: North Carolina Court of Appeals

535 S.E.2d 357

139 NC App. 676

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

No. COA99-676.

Court of Appeals of North Carolina.

August 29, 2000.

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

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

Patterson, Harkavy & Lawrence, L.L.P., by Burton Craige, Raleigh, for the North Carolina Academy of Trial Lawyers and the American Civil Liberties Union of North Carolina Legal Foundation, amici curiae.

TIMMONS-GOODSON, Judge.

The present case arises out of Susan F. Johnson's ("plaintiff") charges of discrimination filed against Durham Technical Community College ("defendant" or "Durham Tech") under the Retaliatory Employment Discrimination Act and the Americans with Disabilities Act. Plaintiff appeals adverse rulings that resulted in a denial of her claims.

Plaintiff taught literacy skills to inmates at the Durham County Jail Annex. She obtained the job by signing a contract with Durham Tech as a part-time instructor of a basic skills course. Pursuant to the contract, plaintiff taught from November of 1993 until mid-February of 1994. Over a two-year period, plaintiff and defendant entered into seven more contracts, for employment periods which lasted for a term of one to three months, depending on the length of the literacy course.

Plaintiff is unable to walk without crutches as a result of having contracted polio as a child. Prior to moving to North Carolina, she taught Latin in Troop County, Georgia. In 1986, plaintiff applied for and received permanent partial disability from her post as a teacher in Georgia and permanent total disability from the Federal Government.

In order to teach her class at the jail annex, plaintiff drove to the jail in her own car, entered on crutches, transferred into a wheelchair she kept at the jail, and taught class from the wheelchair. On 8 June 1994, plaintiff fell from her crutches while opening a security door at the jail, breaking a vertebra in her spine. She filed for workers' compensation benefits on 10 June 1994 and received payment for medical bills and temporary total disability. On 2 January 1995, plaintiff returned to the jail to teach under her fourth employment contract period. Following her fall, plaintiff used her wheelchair exclusively because walking was more difficult. From her home, plaintiff was lifted in her wheelchair onto a public transport van which drove her to the jail. She then rolled into the jail annex and taught her class from her wheelchair.

In February of 1995, plaintiff fell in a bathtub at home and broke her leg. She returned to the jail approximately two weeks later and continued to teach from her wheelchair with her leg in a cast.

Administrators at Durham Tech grew increasingly concerned about the possibility plaintiff would suffer another accident at the jail, exposing Durham Tech to liability. Additionally, the administrators were concerned about plaintiff's absences as a result of her injuries and her requirements of accommodations such as having guards at the jail assist her to open and close doors.

On 16 June 1995, plaintiff met with Russ Conley ("Conley"), the Director of the Adult and Basic Skills program at Durham Tech. Conley proposed that plaintiff teach on campus rather than at the jail at the expiration of her contract. Conley stated that having plaintiff teach at the jail "could prove to be a liability for Durham Tech." Conley discussed the possibility of plaintiff teaching students with disabilities and mental illnesses. Plaintiff refused the transfer, stating that she had no special education training. Conley informed plaintiff on 16 June 1995 that she would not be returning to the jail and that he had already hired someone to replace her.

On 21 June and 24 June 1995, the Dean of Adult and Continuing Education at Durham Tech, Art Clark, received anonymous phone calls alleging that plaintiff used drugs, gave drugs to inmates, carried a loaded weapon, supplied inmates with bullets, and had sex with inmates. Larry Haverland ("Haverland"), Deputy Director for Inmate Programs, testified that he corroborated some of the anonymous charges against plaintiff on 23 June 1995. Haverland did not know who had conducted the informal investigation of the anonymous charges or whether that individual was reliable. The corroborated charges were that plaintiff had taken contraband into the jail in the form of "possibly lighters or matches or something" and that plaintiff had visited an inmate at another prison. Haverland testified that a teacher does not violate jail rules by visiting an inmate at another prison. Plaintiff was not asked to answer the charges of the anonymous caller until after she filed charges of discrimination against Durham Tech in the fall of 1995.

On 26 June 1995, Conley approached plaintiff at the jail annex and informed her that her position would end on 28 June 1995 when her contract expired. Plaintiff was not offered another teaching contract with Durham Tech.

During the week before trial, Durham Tech identified the anonymous caller as Cynthia Wilson ("Wilson"), a nursing aide who had worked in plaintiff's home. At trial, plaintiff denied Wilson's charges. Two nursing aides who assisted plaintiff at the same time as Wilson testified that they had never seen any signs of drug use or improper conduct by plaintiff.

Plaintiff initiated charges of discrimination with the North Carolina Department of Labor under the Retaliatory Employment Discrimination Act and with the Equal Employment Opportunity Commission under the Americans with Disabilities Act. After exhausting her administrative remedies, plaintiff filed a complaint alleging that defendant had removed her from its employment in violation of state and federal law.

On 23 December 1997, Judge Henry V. Barnette of the Superior Court, Durham County partially allowed defendant's Motion for Summary Judgment, dismissing plaintiff's claims brought pursuant to the North Carolina Retaliatory Employment Discrimination Act, but denying summary judgment as to plaintiff's cause of action brought pursuant to the Americans with Disabilities Act. Specifically, Judge Barnette denied plaintiff's Motion for Summary Judgment as to whether plaintiff was a "qualified individual with a disability" for purposes of the Americans with Disabilities Act.

On 18 December 1998, Judge Narley L. Cashwell of the Superior Court, Durham County granted defendant's Motion for Directed Verdict as to plaintiff's claim under the Americans with Disabilities Act. Plaintiff appeals.

On appeal, plaintiff argues that the trial court erred in: (I) granting defendant's Motion for Summary Judgment as to plaintiff's claims under the Retaliatory Employment Discrimination Act; and (II) directing a verdict against plaintiff as to her claims under the Americans with Disabilities Act.

I. RETALIATORY DISCRIMINATION ACT CLAIM

By her first assignment of error, plaintiff argues that the trial court erred in granting defendant's Motion for Summary Judgment as to plaintiff's claims under the Retaliatory Employment Discrimination Act. We cannot agree.

Summary judgment is proper where there is no genuine issue as to any material fact. Alltop v. Penney Co., 10 N.C.App. 692, 179 S.E.2d 885 (1971). An issue is genuine where it is supported by substantial evidence. Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). A genuine issue of material fact is of such a nature as to affect the outcome of the action. Smith v. Smith, 65 N.C.App. 139, 308 S.E.2d 504 (1983). The moving party bears the burden of establishing the lack of a triable issue of fact. Pridgen v. Hughes, 9 N.C.App. 635, 177 S.E.2d 425 (1970). The motion must be denied where the non-moving party shows an actual dispute as to one or more material issues. Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972). As a general principle, summary judgment is a drastic remedy which must be used cautiously so that no party is deprived of trial on a disputed factual issue. Billings v. Harris Co., 27 N.C.App. 689, 220 S.E.2d 361 (1975), aff'd, 290 N.C. 502, 226 S.E.2d 321 (1976).

The North Carolina Retaliatory Employment Discrimination Act ("REDA"), enacted in 1992, prohibits discrimination against an employee who has filed a workers' compensation claim. N.C. Gen.Stat. § 95-240, et seq. (1999). In pertinent part, the Act provides:

(a) No person shall discriminate or take any retaliatory action against an employee because the employee in good faith does or threatens to do any of the following:

(1) File a claim or complaint, initiate any inquiry, investigation, inspection, proceeding or other action, or testify or provide information to any person with respect to any of the following:

a. Chapter 97 of the General Statutes.

N.C. Gen.Stat. § 95-241 (1999).

REDA replaced North Carolina General Statutes section 97-6.1, the purpose of which was to promote an open environment in which employees could pursue remedies under the Workers' Compensation Act without fear of retaliation from their employers. Abels v. Renfro Corp., 108 N.C.App. 135, 423 S.E.2d 479 (1992), aff'd in part, rev'd in part, 335 N.C. 209, 436 S.E.2d 822 (1993). The former law merely protected employees against discharge and demotion. N.C. Gen. Stat. § 97-6.1(a) (repealed 1992). By enacting REDA, however, the General Assembly expanded the definition of retaliation to include "the discharge, suspension, demotion, retaliatory relocation of an employee, or other adverse employment action taken against an employee in the terms, conditions, privileges, and benefits of employment." N.C. Gen.Stat. § 95-240(2) (1999).

In a claim brought pursuant to the former provision, section 97-6.1(a), this Court stated that an employee bears the burden of proof in retaliatory discharge actions....