Ortiz v. Vance Cnty. Sch.
| Decision Date | 30 April 2019 |
| Docket Number | No. 5:18-CV-91-D,5:18-CV-91-D |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | DOROTHY H. ORTIZ, Plaintiff, v. THE VANCE COUNTY SCHOOL, ADMINISTRATIVE UNIT, and VANCE COUNTY BOARD OF EDUCATION, Defendants. |
On December 21, 2018, Dorothy H. Ortiz ("Ortiz" or "plaintiff") filed a second amended complaint against the Vance County School Administrative Unit, d/b/a Vance County Public Schools ("VCPS"), and the Vance County Board of Education (the "Board"; collectively "defendants") alleging age and disability discrimination, retaliation and harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and intentional infliction of emotional distress ("IIED") [D.E. 40]. On January 4, 2019, defendants moved to dismiss Ortiz's second amended complaint for lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted [D.E. 41] and filed a memorandum in support [D.E. 42]. On January 25, 2019, Ortiz responded in opposition [D.E. 43, 44]. On February 7, 2019, defendants replied [D.E. 45]. As explained below, the court grants defendants' motion to dismiss and dismisses Ortiz's second amended complaint.
Ortiz began working at Western Vance High School ("Western Vance") in November 1999. See 2d Am. Compl. [D.E. 40] 3 ¶ 1. Ortiz initially worked as a computer skills instructor, but was paid as a teacher's assistant. See id. ¶ 2. While Ortiz worked at Western Vance, Ortiz earned "two associate degrees and a bachelor degree." Id. ¶ 7. Ortiz suffers from musculoskeletal degeneration, and repetitive bending, stooping, and lifting movements worsen her chronic condition. See id. ¶ 18.
In March 2012, Clarence Hicks ("Hicks"), the principal of Western Vance, informed Ortiz that defendants were eliminating her position as a teaching assistant in the computer lab and that the only positions available were in classrooms with young children. See id. ¶ 19. Because these jobs would require bending, stooping, and lifting, see id., Ortiz opted to use her short-term disability benefits. See id. at 6 ¶ 21. On April 16, 2012, Ortiz alleges that defendants first denied her request for a reasonable accommodation (i.e., "placement in a desk job out of the classroom."). Id. ¶ 3.
In April 2014, Ortiz's doctor certified that Ortiz could perform jobs with minimal bending, stooping, and lifting, and suggested a desk job as a reasonable accommodation. See id. ¶ 22. On April 14, 2014, Angela Miles ("Miles"), the Assistant Human Resources Director, informed Ortiz that Western Vance did not have any jobs that met the doctor's certification. See id. ¶ 23. In July 2014, Ortiz requested assignment to a vacant position as a front desk receptionist, but Miles informed Ortiz that Ortiz must obtain "a second fitness for duty certification" from her doctor concerning the position. Id. ¶¶ 25-26. On July 24, 2014, Ortiz returned her doctor's certification for the position. See id. ¶ 27. In August 2014, Ortiz learned that a "substantially younger," non-disabled employee had obtained the position. Id. ¶ 28. In September 2014, Ortiz applied for three similar positions for which she was qualified, but in each case defendants selected a younger, non-disabled candidate. See id. ¶ 29. At the time, Ortiz was 55 years old. See id. ¶ 31.
On November 1, 2014, defendants terminated Ortiz due to "a reduction in force." See id. ¶ 4.1 On May 21, 2015, Ortiz filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging disability discrimination, age discrimination, and retaliation. See id. ¶ 5; [D.E. 41-1].
Defendants attended an EEOC mediation with Ortiz. See [D.E. 44] 1. Although the mediation was not successful, on November 9, 2015, defendants re-hired Ortiz as a receptionist/bookkeeper/data manager. See 2d Am. Compl. [D.E. 40] ¶ 6. Ortiz's responsibilities included tracking student attendance, taking calls and messages, maintaining payroll, and greeting visitors. See id. ¶ 8. Ortiz alleges that she did not receive formal training for the position beyond a meeting with an accountant concerning audits. See id. ¶¶ 9-11. Nonetheless, Hicks informed Ortiz that he asked staff to provide formal training to Ortiz three times. See id. ¶ 11. Ortiz also alleges that defendants paid her at the bottom of the pay scale despite her education and experience. See id. ¶ 9.
On December 9, 2015, Ortiz received two disciplinary actions. See id. ¶¶ 12-13. The first disciplinary action concerned Ortiz's professionalism. Hicks notified Ortiz that "he received numerous complaints about [Ortiz] getting involved in school issues that did not involve her." Id. ¶ 12. Hicks also said that "some of the teachers did not like [Ortiz's] tone." Id. Ortiz alleges that any interactions with other teachers concerned "asking them to complete their attendance and report it to" her. Id. Ortiz alleges that Hicks did not provide any training or suggestions for improvement during this meeting. See id. The second disciplinary action concerned a sick student. See id. ¶ 13.Ortiz alleges that a student came to see her and complained about chest pains. See id. Ortiz claims that, because she had not received training on how to handle such a situation, she called Jeanette Noel ("Noel"), a long-time colleague and friend, who told Ortiz to call the school nurse. See id. Ortiz alleges that her second disciplinary action was for violating the "student's privacy rights." Id.
On December 10, 2015, Ortiz received a third disciplinary action because she held Noel's paycheck. See id. ¶ 14. Hicks gave Ortiz a memorandum concerning distribution of paychecks. See id. Ortiz alleges that she "wanted to talk to Ms. Noel and had stored Ms. Noel's check until they could have a face-to-face conversation with each other." Id. On December 21, 2015, Ortiz submitted a second charge to the EEOC alleging a hostile work environment and retaliation in violation of Title VII. See id. ¶ 8. On July 17, 2016, Ortiz's doctor "took her out of work due to work related health issues." Id. ¶ 16.
On December 4, 2017, the EEOC issued a dismissal and right to sue notice concerning Ortiz's December 2015 EEOC charge. See id. ¶ 8; [D.E. 40-1]. On September 18, 2018, the EEOC issued a dismissal and right to sue notice concerning Ortiz's May 2015 EEOC charge. See 2d Am. Compl. [D.E. 40] ¶ 9; [D.E. 40-2].
A motion to dismiss under Rule 12(b)(6) tests the complaint's legal and factual sufficiency. See Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-63 (2007); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S. 30 (2012); Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6) motion, a pleading "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678 (quotation omitted); see Twombly, 550 U.S. at 570;Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the facts and reasonable inferences "in the light most favorable to the [nonmoving party]." Massey v. Ojaniit, 759 F.3d 343, 352 (4th Cir. 2014); see Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013), abrogated on other grounds by Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). A court need not accept as true a complaint's legal conclusions, "unwarranted inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 556 U.S. at 678-79. Rather, a plaintiff's allegations must "nudge[ ] [her] claims," Twombly, 550 U.S. at 570, beyond the realm of "mere possibility" into "plausibility." Iqbal, 556 U.S. at 678-79.
When evaluating a motion to dismiss, a court considers the pleadings and any materials "attached or incorporated into the complaint." E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011); see Fed. R. Civ. P. 10(c); Thompson v. Greene, 427 F.3d 263, 268 (4th Cir. 2005). A court also may take judicial notice of public records without converting the motion to dismiss into a motion for summary judgment. See, e.g., Fed. R. Evid. 201(d); Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
The motion to dismiss requires the court to consider the plaintiffs' state-law claims, and the parties agree that North Carolina law applies. Accordingly, this court must predict how the Supreme Court of North Carolina would rule on any disputed state-law issues. See Twin City Fire Ins. Co. v. Ben Arnold-Sunbelt Beverage Co. of S.C., 433 F.3d 365, 369 (4th Cir. 2005). In doing so, the court must look first to opinions of the Supreme Court of North Carolina. See Stahle v. CTS Corp., 817 F.3d 96, 100 (4th Cir. 2016). If there are no governing opinions from that court, this court may consider the opinions of North Carolina Court of Appeals, treatises, and "the practices of otherstates." Twin City Fire Ins. Co., 433 F.3d at 369 (quotation omitted).2 In predicting how the highest court of a state would address an issue, this court "should not create or expand a [s]tate's public policy." Time Warner Entm't-Advance/Newhouse P'ship v. Carteret-Craven Elec. Membership Corp., 506 F.3d 304, 314 (4th Cir. 2007) (alteration and quotation omitted); see Wade v. Danek Med., Inc., 182 F.3d 281, 286 (4th Cir. 1999). Moreover, in predicting how the highest court of a state would address an issue that it has not yet resolved, this court must "follow the decision of an intermediate state appellate court unless there [are] persuasive data that the highest court would decide differently." Toloczko, 728 F.3d at 398 (quotation omitted).
Ortiz first claims that defendants discriminated against her based on her age and...
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