Wilkins v. Guilford County

582 S.E.2d 74

158 NC App. 661

Sandra B. WILKINS, Plaintiff, v. GUILFORD COUNTY, Guilford County Department Of Social Services, and John W. Shore, Director of the Guilford County Department of Social Services, in his individual and official capacities, Defendants.

No. COA02-1042.

Court of Appeals of North Carolina.

July 1, 2003.

Jerry R. Everhardt, Greensboro, for plaintiff-appellant.

County Attorney Jonathan V. Maxwell and Assistant County Attorney Kevin W. Whiteheart, Greensboro, for defendant-appellees.

BRYANT, Judge.

Sandra B. Wilkins (plaintiff) appeals a judgment filed 27 December 2001 granting summary judgment in favor of Guilford County, Guilford County Department of Social Services (DSS), and DSS director John W. Shore (Shore) (collectively defendants).

In her complaint filed 18 December 2000, plaintiff, a former DSS employee, alleged that the performance deficiencies cited by DSS as grounds for her 14 January 2000 dismissal were caused by side effects from an increased dosage of the drug Adderall prescribed to her for attention deficit disorder (ADD). Consequently, plaintiff claimed DSS' actions were in violation of 42 U.S.C. § 12101, et seq. of the Americans with Disabilities Act (ADA), 29 U.S.C. § 794 of the Rehabilitation Act of 1973, N.C. Gen.Stat. § 168A-5 (North Carolina's Persons with Disabilities Protection Act), 42 U.S.C. § 1983 for due process violations under the United States and North Carolina constitutions, and the public policy of this State. Defendants filed an answer dated 16 February 2001 denying liability, accompanied by a motion to dismiss under, inter alia, Rule 12(b)(6) for failure to state a claim upon which relief could be granted. Following discovery, defendants again moved to dismiss the case and, in the alternative, moved the trial court for summary judgment in their favor.

Medical History

The pleadings, depositions, and affidavits filed in this action reveal that plaintiff consulted her physician, Dr. Mary John Baxley, in December 1997 claiming she was suffering from ADD. Dr. Baxley accepted plaintiff's "self-report [of ADD] as [her] diagnosis [of plaintiff]" because plaintiff "knew quite a bit about attention deficit disorder, and it seemed to be reasonable." Dr. Baxley initially prescribed plaintiff an anti-depressant but placed her on Ritalin in May 1998. In May 1999, Dr. Baxley referred plaintiff to psychiatrist Dr. Brian Andrew Farah with "an existing diagnosis" of ADD and a history of depression. At this time, plaintiff was not using Ritalin. Plaintiff told Dr. Farah "she had responded to Ritalin in the past and wanted to go back on stimulants." Dr. Farah recommended that plaintiff start using Adderall instead of Ritalin because, in his opinion, "there[ ] [is] a rebound effect ... often see[n] when Ritalin runs out" that is not as severe with Adderall. The initial dosage prescribed to plaintiff was for ten milligrams a day, but Dr. Farah instructed plaintiff to monitor the effect of the Adderall according to the ADD symptoms she was experiencing and allowed her to increase her dosage up to 40 milligrams a day if needed. During a follow-up visit on 14 June 1999, plaintiff told Dr. Farah she was using the maximum dosage prescribed by him. She reported that the "target symptoms" of "[c]oncentration, focus, ability to stay on task, inattentiveness, [and] distractibility [sic]" had improved and that she was not experiencing any negative side effects. Plaintiff also indicated she was experiencing fewer mood swings. Based on this information, Dr. Farah continued plaintiff's prescription for Adderall at 40 milligrams per day.

Plaintiff saw Dr. Farah again in October 1999, at which time plaintiff reported several stress factors affecting her such as a loan agreement entered into by her husband and her mother's suffering from Alzheimer's disease. Dr. Farah noted the increased stress level, but because the Adderall appeared to be effective and plaintiff neither indicated nor exhibited any side effects, Dr. Farah continued plaintiff on the same dosage. It was only after plaintiff's employment was terminated that she complained to Dr. Farah that the Adderall was affecting her mood and consequently must have impacted her work performance. Following the filing of plaintiff's complaint, plaintiff's expert, Dr. C. Keith Connors, evaluated plaintiff and concluded that she probably suffered from attention deficit hyperactivity disorder (ADHD).

Work History

Plaintiff had been employed by the County since 1983. On 1 May 1999, plaintiff transferred to and began working as a social worker in the DSS adult services unit. On 19 July 1999, plaintiff received an initial performance evaluation with a score of four out of five points, five being the highest rating. Five months later, however, plaintiff's performance score had slipped to a two, meaning her "work [was] below job expectations in several areas." Following this evaluation, plaintiff's supervisor, on 17 December 1999, recommended plaintiff's dismissal from DSS based on insubordinate behavior, unwillingness or inability to get along with people, and a lack of compassion and sensitivity toward clients. When plaintiff was notified of this recommendation, she, for the first time, "thought [that] maybe the medicine [ (Adderall)] was[ ] [not] working like [it should]" and requested accommodations for her ADD. Plaintiff also requested and was granted a conference hearing with Shore to contest the recommendation. In a letter dated 3 January 2000, plaintiff informed Shore that her ADD medication could cause "loss of appetite, nervousness, [and] difficulty sleeping." In support of her claim, plaintiff, at the conference hearing, presented a list of possible side effects from Adderall as given to her by her pharmacy but did not argue that the medication caused the deficiencies cited in the recommendation for dismissal. Shore subsequently terminated plaintiff's employment with DSS effective 14 January 2000.

At the hearing on defendants' motions to dismiss and for summary judgment, plaintiff conceded she had no claim against defendants under N.C. Gen.Stat. § 168A-5, which relates to employment discrimination, and no claim against Shore in his individual capacity under the ADA and the Rehabilitation Act but maintained she was entitled to relief under the remaining causes of action raised in her complaint. Finding that there were no genuine issues of fact and that defendants were entitled to judgment as a matter of law, the trial court granted the summary judgment motion on 27 December 2001.

The dispositive issues are whether: (I) plaintiff suffered from a disability and (II) plaintiff had a property interest in her employment.

I

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C.G.S. § 1A-1, Rule 56(c) (2001). The burden is on the summary judgment movant to establish the lack of any triable factual issue. Trexler v. Norfolk S. Ry. Co., 145 N.C.App. 466, 469, 550 S.E.2d 540, 542 (2001).

The movant may meet its burden by: (1) demonstrating that an essential element of the plaintiff's claim is nonexistent; (2) establishing through discovery that the plaintiff[] cannot produce evidence to support an essential element of the claim; or (3) showing that plaintiff cannot survive an affirmative defense, such as governmental immunity.

Id.

Plaintiff first argues the trial court erred in granting defendants' motion for summary judgment because there were genuine issues of material fact as to whether she suffered from a disability under the ADA and the Rehabilitation Act.

The ADA prohibits discrimination against qualified individuals with a disability, 42 U.S.C. § 12112(a) (2003), disability being defined as either (1) "a physical or mental impairment that substantially limits one or more of the major life activities of such individual," (2) "a record of such an impairment," or (3) "being regarded as having such an impairment," 42 U.S.C. § 12102(2) (2003). For purposes of proving a disability, "the Rehabilitation Act of 1973 ... is interpreted substantially identically to the ADA," Katz v. City Metal Co., Inc., 87 F.3d 26, 31 n. 4 (1st Cir.1996); see EEOC v. Amego, 110 F.3d 135, 144 (1st Cir.1997); thus the same case law applies.

In this case, plaintiff only argues disability as defined by "a physical or mental impairment that substantially limits one or more... major life activities." 42 U.S.C. § 12102(2)(A) (2003). She claims that her mental impairment of ADD/ADHD coupled with the negative side effects from the increased dosage of Adderall substantially limited the major life activity of working, resulting in her wrongful termination from DSS. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 480, 119 S.Ct. 2139, 2145, 144 L.Ed.2d 450, 461 (1999) (working is a major life activity); but see 29 C.F.R. § 1630.2(j)(3)(i) (2003) ("The term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person.... The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working."). Assuming plaintiff suffers from a mental impairment, see Bercovitch v. Baldwin Sch., Inc., 133 F.3d 141, 155 n. 18 (1st Cir.1998) (questioning whether ADHD qualifies as a mental impairment under the ADA), we must first consider whether a person qualifies as disabled if the underlying impairment is controlled by medication but the medication, because of negative side effects, creates substantial limitations under the Act.

In Sutton, the United States Supreme Court held, "[a] person whose physical or mental impairment is corrected by medication or other measures...