United States District Court, M.D. North Carolina
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For ERIN DICKINSON, Plaintiff: STEPHEN LUKE LARGESS, LEAD ATTORNEY, TIN FULTON WALKER & OWEN, PLLC, CHARLOTTE, NC.
For UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, THE, UNIVERSITY OF NORTH CAROLINA SCHOOL OF THE ARTS, FRANCO COLAVECCHIA, JOSEPH TILFORD, HOWARD JONES, VICKI DAVIS, Defendants: CATHERINE F. JORDAN, N. C. DEPARTMENT OF JUSTICE, RALEIGH, NC.
MEMORANDUM OPINION AND ORDER
Thomas D. Schroeder, United States District Judge.
Plaintiff, Erin Dickinson, a former graduate student at Defendant University of North Carolina School of the Arts (" UNCSA" ), alleges that she was dismissed in violation of the Americans with Disabilities Act, 42 U.S.C. § § 12101 et seq. (" ADA" ), the Rehabilitation Act, 29 U.S.C. § § 701 et seq. (" Rehabilitation Act" ), and North Carolina common law. She names as Defendants the University of North Carolina (" UNC" ), UNCSA, and several university employees. Before the court is Defendants' motion to dismiss pursuant to Rules 12(b)(1), 12(b)(2), and 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 12.) The motion has been fully briefed and is ready for decision. For the reasons set forth below, Defendants' motion will be granted in part and denied in part.
Dickinson's complaint is lengthy. The essential allegations, taken in the light most favorable to Dickinson, show the following:
Dickinson applied to and was accepted for the graduate program in Scenic Art in the School of Design and Production at UNCSA. (Doc. 9 (Am. Compl.) ¶ 11.) This master's degree program takes three years to complete, with each year broken into three trimesters. (Id. ¶ 12.) The school's academic policy requires students to maintain a grade point average (" GPA" ) of at least a B, both cumulatively and per trimester. (Id. ¶ ¶ 14--15.) If a student fails to meet this requirement, he or she may be placed on academic probation. (Id.) At the close of each school year, students must be invited back for the next year; continuation is not automatic. (Id. ¶ 46.)
Dickinson has suffered from two medial conditions from adolescence through her time at UNCSA: severe migraine headaches, and polycystic ovary syndrome, " both of which are periodically completely disabling." (Id. ¶ ¶ 16, 18.) Polycystic ovary syndrome can cause Dickinson to be in " debilitating pain" for weeks at a time. (Id. ¶ 17.)
In her first trimester at UNCSA, fall 2008, one of Dickinson's instructors was Defendant Franco Colavecchia. (Id. ¶ 19.) He became ill and was replaced by Defendant Vicki Davis. (Id. ¶ ¶ 20--21.) Davis was not well received by her students because she ridiculed them. (Id. ¶ ¶ 23--26.) Dickinson and another student approached their advisor, Defendant Howard Jones, about Davis, and eventually filed a written complaint against her. (Id. ¶ ¶ 26--27.) Dickinson alleges, on information and belief, that Joseph Tilford (Dean of the School of Design and Production) and Jones conveyed the complaint to Davis, who in turn retaliated against Dickinson by giving her a grade of B-for the fall trimester (her worst grade for the term). (Id. ¶ 28.)
Davis continued to ridicule her students in the winter term. (Id. ¶ 30.) Dickinson wore sunglasses in class because the fluorescent lighting triggered severe migraines. (Id. ¶ ¶ 32--33.) Davis mocked and ridiculed Dickinson for this in front of her classmates. (Id. ¶ 34.) Dickinson again complained about Davis, who again gave Dickinson a B-(her worst grade for the term). (Id. ¶ ¶ 35--37.) For the 2009 spring term, Colavecchia returned to teaching, and Davis' role substantially declined. (Id. ¶ 38.) Colavecchia assigned Dickinson a grade of B in each of two classes. (Id. ¶ ¶ 39--40.)
At the end of the first year, based on Dickinson's grades and portfolio presentation, UNCSA extended her a written offer to continue in the program for a second year, which she accepted. (Id. ¶ ¶ 45--48.) At the end of her second year, Dickinson was again invited to return for her third and final year. (Id. ¶ 59.) Dickinson accepted the offer, paid the deposit, and applied for financial aid. (Id. ¶ 60.)
Around the time Dickinson was completing her second year, UNCSA decided not to reappoint Davis on tenure track but offered her a terminal teaching appointment for the 2010--2011 school year. (Id. ¶ 62.) One of the reasons for Davis' failure to secure reappointment was student complaints about her teaching, including Dickinson's complaints about being ridiculed for her health issues. (Id. ¶ 63.) Dickinson alleges, on information and belief, that Colavecchia decided to retaliate against Dickinson for her role in getting Davis fired by getting Dickinson expelled. (Id. ¶ 64.)
In summer 2010, after Dickinson had already accepted her third year offer and paid her deposit, UNCSA informed her that she was being dismissed because she had received two grades of F from Colavecchia for incomplete work for the past spring trimester. (Id. ¶ 65.) Dickinson denies that she failed to complete any work. (Id. ¶ ¶ 66--74.) She was told that her opportunity to make up the grades had passed, requiring her dismissal. (Id. ¶ 67.)
Dickinson appealed unsuccessfully to Colavecchia. (Id. ¶ ¶ 79--82.) Administrators then tried to avoid meeting with Dickinson, but eventually Tilford did so right before the fall 2010 term began. (Id. ¶ ¶ 85--102.) Tilford told her that she could only remain in school if she signed a probationary agreement. (Id. ¶ 96.) The agreement required Dickinson, unlike all other graduate students, to make at least a B in every class. (Id.) She was also required to retake set design to make up credits for the class Colavecchia claimed she did not complete. (Id. ¶ 97.) Fearing she would lose her financial aid unless she agreed, and doubting that UNCSA administrators would overturn Tilford's decision, she agreed to the terms of probation and began the fall term. (Id. ¶ ¶ 98--102.) Besides her grades from Davis, Dickinson had never received a grade below a B and believed she could meet the terms of the agreement. (Id. ¶ 101.)
From November 2010 through February 2011, Dickinson had to miss class and had to make up work due to the onset of disabling PCOS symptoms. (Id. ¶ ¶ 106--22.) She received several grades below a B for the fall and winter terms. (Id. ¶ ¶ 143, 150--51.) In the spring term, Dickinson received two grades of B-. (Id. ¶ ¶ 157, 161.) Dickinson alleges that she received these grades below B, as well as being required to do additional work not required of other students, as a result of a conspiracy among UNCSA instructors and administrators to punish her for requesting accommodation of her PCOS symptoms and to ensure she would not graduate. (Id. ¶ ¶ 164--76.) On May 25, 2011, Dickinson was dismissed from her program for failing to comply with the terms of the probation agreement and was not allowed to graduate. (Id. ¶ ¶ 162--63.)
On March 28, 2014, Dickinson filed a complaint in a North Carolina Superior Court. (Doc. 17-1 at 1.) On April 17, 2014, she amended her complaint to add Davis as a Defendant. (Doc. 17 at 1.) Dickinson names as Defendants UNC and UNCSA, as well as Colavecchia, Tilford,
Jones, and Davis (the latter four collectively referred to as the " Individual Defendants" ). Defendants removed the case to this court on May 21, 2014. (Doc. 1.) The complaint seeks injunctive relief, compensatory damages, punitive damages, attorneys' fees, and costs. (Am. Compl. at 25.) Five claims for relief are asserted: claims for disability discrimination and retaliation under the ADA; claims for disability discrimination and retaliation under the Rehabilitation Act; and a state-law claim of tortious interference with contract under North Carolina law.
Defendants have jointly filed a motion to dismiss under Rules 12(b)(1), 12(b)(2), and 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 12) Dickinson responded (Doc. 17), and Defendants replied (Doc. 20). The motion is ripe for resolution.
A. Sovereign Immunity as to Dickinson's State-Law Claim Against the Individual Defendants
Dickinson's fifth claim for relief alleges tortious interference with contract against the Individual Defendants in both their official and personal capacities. (Am. Compl. ¶ ¶ 8, 203--12.) To the extent this State-law tort claim is made against these Defendants in their official capacity, Defendants move to dismiss it on grounds of sovereign immunity pursuant to Rule 12(b)(1). (Doc. 13 at 10.)
The defense of sovereign immunity is properly addressed under Rule 12(b)(1). See Anderson v. United States, 669 F.3d 161, 164 (4th Cir. 2011), certified question answered, 427 Md. 99, 46 A.3d 426 (Md. 2012); cf. Smith v. Wash. Metro. Area Transit Auth., 290 F.3d 201, 205 (4th Cir. 2002) (citing Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995)). Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), permits certain claims to be brought against a State so long as they are styled as claims against State officials sued in their official capacity. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). But the Young " fiction" does not apply " in a suit against state officials on the basis of state law." Id. at 106, 114 n.25.
Dickinson argues only that it is " unclear" whether sovereign immunity applies to her claim against the Individual Defendants in their official capacity because " the State cannot claim immunity from claims based in contract." (Doc. 17 at 20.) Dickinson misperceives the issue. It is true that the State is not immune from suit for contracts it enters into. Smith v. State,289 N.C. 303, 222 S.E.2d 412, 424 (N.C. 1976). But Dickinson has styled her fifth cause of action in tort, not contract. North Carolina is immune from tort liability, unless it is waived. White v. Trew,366 N.C. 360, 736 S.E.2d 166, 168 (N.C. 2013). " The North Carolina Torts Claims Act provides a limited waiver of immunity and authorizes recovery against the State for negligent acts of its 'officer[s], employee[s], involuntary servant[s] or agent[s].'" Id. (quoting N.C. Gen. Stat. § 143--291(a) (2011)). But suits against the State based on " intentional acts of these individuals are not permitted." Id. Because tortious interference with contract is an intentional tort, as Dickinson concedes, see Doc. 17 at 19; Beverage Systems of the Carolinas, LLC v. Associated Beverage Repair, LLC,762 S.E.2d 316, 323 (N.C.App. 2014) (requiring that the ...