BRISSON v. SALISBURY HOUSING AUTHORITY

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

SEMONE BRISSON, )

)

Plaintiff, )

)

v. )

) 1:23-cv-891

SALISBURY HOUSING AUTHORITY, )

(also known as Housing )

Authority of Salisbury, NC), )

SALISBURY HOUSING CORPORATION, )

INC., and BRADLEY MOORE, in )

his individual capacity, )

)

Defendants. )

AMENDED1 MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Before this court is a Motion to Dismiss filed by Defendant

Salisbury Housing Corporation, Inc., (Doc. 19), and a Motion to

Dismiss filed by Defendant Salisbury Housing Authority, and

Defendant Bradley Moore, (Doc. 12). For the reasons stated

herein, Defendant Salisbury Housing Corporation, Inc.’s motion

will be granted. Defendant Salisbury Housing Authority and

Defendant Bradley Moore’s motion will be granted in part and

denied in part.

1 This court has corrected statements of law on pages 15–17

and 22.

I. FACTUAL BACKGROUND

On a motion to dismiss, a court must “accept as true all of

the factual allegations contained in the complaint.” Ray v.

Roane, 948 F.3d 222, 226 (4th Cir. 2020). The facts, taken in

the light most favorable to Plaintiff, are as follows.

Plaintiff is a resident of Salisbury, North Carolina, and,

at the times relevant to the allegations in her Complaint, was

an employee of the Housing Authority of the City of Salisbury,

North Carolina (“SHA”).2 (Complaint (“Compl.”) (Doc. 1) ¶¶ 7,

12.)

SHA is a public housing agency in Salisbury, North

Carolina. (Id. ¶ 10.) Bradley Moore (“Moore”) is the Executive

Director of SHA. (Id. ¶ 9.) Salisbury Corporation, Inc. (“SHC”)

is a nonprofit entity registered with the Secretary of State,

who, together with SHA, “is responsible for the administration

and distribution of funds” related to Section 8 housing in

Salisbury, NC, and “is an employer as defined by the ADA.” (Id.

¶ 11.)

2 Defendants allege that Plaintiff has improperly named

Defendant Salisbury Housing Authority and the true name is

“Housing Authority of the City of Salisbury, North Carolina.”

(Doc. 13 at 1.) (For ease of reference, the entity will be

referred to as “SHA” in this Order. The proper name will be

formally addressed infra Section IV.A.

Plaintiff suffers from “chemical sensitivities and

allergies,” which cause her to experience “mild to moderate, but

not life threatening,” adverse reactions to certain scented

substances, “including but not limited to air fresheners,

scented candles, and aerosol disinfectant spray,” (id. ¶ 13), as

well as “certain cleaning products and heavy perfume,” (id. ¶

124). Plaintiff’s adverse reactions include, among other

symptoms, “mild to severe breathing difficulty” and “foggy

thinking. (Id. ¶ 14.) Plaintiff’s condition dates to her “early

adult years” and she “has sought and continues to seek medical

treatment” to address it. (Id. ¶ 13.)

SHA first hired Plaintiff in January 2018 and, over the

successive years, Plaintiff served in a variety of part-time

roles for SHA. (Id. ¶¶ 2, 131.) On September 16, 2022, Plaintiff

assumed a new, full-time administrative position for SHA titled

“Occupancy Specialist.” (Id. ¶¶ 12, 64.) In this position, she

was “provided an office in the main office of the SHA, where she

was expected to work for the majority of her full-time hours.”

(Id. ¶ 12.)

On the morning of Plaintiff’s first day of work as an

Occupancy Specialist in September 2022, she noticed that her

coworker, Tasha Gibbs, was spraying a Clorox anti-bacterial

formula throughout the receptionist area, lobby, and other areas

of the SHA office – a standard practice of Gibbs’ at the time

due to concerns about the Covid-19 virus. (Id. ¶¶ 22–26.)

Plaintiff knew “she was going to have a serious reaction to the

spray,” (id. ¶ 23), and as she “start[ed] to feel symptoms,”

(id. ¶ 26), approached Gibbs to notify Gibbs of her chemical

sensitivities, (id. ¶ 27). Gibbs apologized and said “she did

not know.” (Id. ¶ 28.) After speaking with Gibbs, Plaintiff

returned to her office, closed her door, and attempted to open

her window to allow in fresh air, but came to realize that “the

window in her office did not open.” (Id. ¶ 29.)

Later that morning, Plaintiff informed her manager Cameron

Allison of her adverse reaction to the Clorox formula sprayed by

Gibbs, as well as the fact that Plaintiff suffers from chemical

sensitivities to “aerosols” and various other “chemicals and

fragrances.” (Id. ¶ 34, 35.) Later that morning, Allison told

Plaintiff that “there would be occasions” where Plaintiff would

inevitably come into contact with odors on the job, (id. ¶ 37),

but that “he would speak with Gibbs” about the Clorox formula,

(id. ¶ 36). After the events of that first day, “Gibbs did not

spray again,” (id. ¶ 41), and for the next two weeks, Plaintiff

experienced no further “chemical exposure[s],” (id. ¶ 61.)

However, the can of Clorox spray remained “sitting out on the

credenza at the receptionist area” of the office. (Id. ¶ 41.)

Additionally, “a commercial, wall mounted, Airwick automatic air

freshener sprayer” was stationed in the lobby and a “can of air

freshener” was stationed in the bathroom. (Id. ¶¶ 42, 59.)

On September 27, 2022, as Plaintiff walked down the hallway

to visit with a coworker, she noticed that the “hallway was full

of air freshener.” (Id. ¶¶ 62, 65.) Plaintiff learned that the

dispenser had recently been refilled, which “made it apparent

that management had not educated the staff on [her] chemical

sensitivities and the need to avoid unnecessary introduction of

chemicals into the offices.” (Id. ¶ 68.) Plaintiff texted her

manager Allison and “asked him if he could have the air

freshener taken down” as well as to “please make sure that the

employees in the office knew about [Plaintiff’s] chemical

sensitivity.” (Id. ¶ 69.)

The next day, September 28, 2022, Plaintiff noticed that

her colleague Gibbs had lit a “scented candle.” (Id. ¶¶ 70, 79.)

To avoid having the candle’s fumes enter her office, Plaintiff

“closed [her] door . . . even though she knew that people in the

office might think this rude.” (Id. ¶ 72.) Not knowing if or

what her manager Allison had communicated to coworkers about her

condition, Plaintiff approached Allison to further discuss her

chemical sensitivities and provide more context about the range

of fragrances that cause her “health issues.” (Id. ¶ 79.) In

discussing her issues, Plaintiff informed Allison that another

business in the area “had adopted a ‘scent-free’ workplace

policy and that people with noticeable fragrances were asked to

leave and return without the scents/fragrances.” (Id. ¶ 84.)

Allison “listened patiently” and responded that he would “talk

with Tasha [Gibbs]” and “let Bradley [Moore] know” about

Plaintiff’s condition. (Id. ¶ 89.) To Plaintiff’s knowledge

“[n]o texts or emails were sent . . . about her sensitivity and

the need to avoid the use of chemicals/fragrances in the

office.” (Id. ¶ 95.)

The next week, Plaintiff emailed Allison expressing concern

about fragrances she smelled in the office of a coworker with

whom she was supposed to collaborate and asked for Allison to

“[p]lease advise” on how she should proceed. (Id. ¶ 107.)

“Within about 10 or 15 minutes of sending the email,” SHA’s

Executive Director, Moore, approached Plaintiff and asked her

“‘What’s the problem?’ in a very irritated and confrontational

tone.” (Id. ¶¶ 109, 112.) Plaintiff attempted to explain her

chemical sensitivity to Moore, (id. ¶¶ 124, 127), but “Moore did

not offer to work with Plaintiff to identify a reasonable

accommodation that would allow [her] to maintain her full-time

position,” (id. ¶ 149). Instead, “Moore terminated her” during

the conversation, instructing her, “Take your things and go home

for good!” (Id. ¶¶ 138, 154.)

Based on the facts above, Plaintiff listed three total

claims for relief under the Americans with Disabilities Act of

1990 (“ADA”) and the North Carolina Persons with Disabilities

Protection Act (“NCPDPA”) in her Complaint:

I. Failure to Provide a Reasonable Accommodation in

Violation of the ADA.

II. Retaliation in Violation of the ADA.

III. Discrimination and Retaliation in Violation of the

NCPDPA. (Id. ¶¶ 159–83.)

II. PROCEDURAL HISTORY

Plaintiff was issued a Right to Sue Letter by the EEOC on

or about July 22, 2023. (Id. ¶ 6.) Plaintiff filed her Complaint

in this suit in federal court on October 20, 2023. (Id. ¶ 1.)

Defendant SHA3 and Defendant Moore jointly filed a motion to

dismiss on November 30, 2023, (Doc. 12), as well as a supporting

brief, (Defs. SHA & Moore’s Mem. of Law in Supp. of Defs.’ Mot.

to Dismiss (“Defs. SHA & Moore’s Br.”) (Doc. 13)). Defendant SHC

filed a motion to dismiss on February 5, 2024, (Doc. 19), as

3 Upon this court’s belief, Defendant SHA’s proper name is

“Housing Authority of the City of Salisbury, North Carolina.”

Defendant was improperly named in Complaint as “Salisbury

Housing Authority (also known as Housing Authority of Salisbury,

NC).” For further discussion, see infra p. 9-12.

well as a supporting brief, (Def. SHC’s Mem. of Law in Supp. of

Def.’ Mot. to Dismiss (“Def. SHC’s Br.”) (Doc. 20)).

Plaintiff responded to SHA and Moore’s motion, (Pl.’s Mem.

in Opp’n to Defs.’ Mot. to Dismiss (“Pl. First Resp.”) (Doc.

17)), and Defendants SHA and Moore replied, (Defs. SHA & Moore’s

Reply to Pl.’s Opp’n to Defs.’ Mot. to Dismiss (“Def. SHA &

Moore’s Reply”) (Doc. 18)). Plaintiff also responded to

Defendant SHC’s motion (Pl.’s Mem. in Opp’n to Def. SHC’s Mot.

to Dismiss (“Pl. Second Resp.”) (Doc. 27)), and Defendant SHC

replied, (Def. SHC’s Reply to Pl.’s Opp’n to Def. SHC’s Mot. to

Dismiss (“Def. SHC’s Reply”) (Doc. 29)).

Defendants move to dismiss Plaintiff’s federal ADA claims

and state NCPDPA claim pursuant to Federal Rule of Civil

Procedure 12(b)(6). Additionally, Defendant SHA moves to dismiss

the claims on the ground that Plaintiff misnamed SHA in her

Complaint and thus sued an entity that does not “exist,” (Defs.

SHA & Moore’s Br. (Doc. 13) at 1, 11),4 and Defendant SHC moves

to dismiss the claims on the ground that Plaintiff failed to

effect service, (Def. SHC’s Br. (Doc. 20) at 1).

4 All citations in this Memorandum Opinion and Order to

documents filed within the court refer to the page numbers

located at the bottom right-hand corner of the documents as they

appear on CM/ECF.

III. STANDARD OF REVIEW

To survive a Rule 12(b)(6) motion, “a complaint must

contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its

face if “the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is

liable” and demonstrates “more than a sheer possibility that a

defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing

Twombly, 550 U.S. at 556–57). When ruling on a motion to

dismiss, this court accepts the complaint’s factual allegations

as true. Iqbal, 556 U.S. at 678. Further, this court liberally

construes “the complaint, including all reasonable inferences

therefrom, . . . in the plaintiff’s favor.” Est. of Williams-

Moore v. All. One Receivables Mgmt., Inc., 335 F. Supp. 2d 636,

646 (M.D.N.C. 2004) (citation omitted). This court does not,

however, accept legal conclusions as true, and “[t]hreadbare

recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

IV. ANALYSIS

A. Motion to Dismiss for Misnaming Defendant SHA

Plaintiff improperly named Defendant SHA in her Complaint

as the following: “Salisbury Housing Authority (also known as

Housing Authority of Salisbury, NC).” (Compl. (Doc. 1) at 1.)

SHA contends that “no such entity exists,” (Defs. SHA & Moore’s

Br. (Doc. 13) at 11), and thus that this court should dismiss

Plaintiff’s Complaint for a lack of personal jurisdiction,

(Defs. SHA & Moore’s Reply (Doc. 18) at 4). Plaintiff’s response

focuses on tangential issues related to businesses’ registration

with the Secretary of State, service, and personal jurisdiction.

(See Pl. First. Resp. (Doc. 17) at 5–12.)

Both parties’ arguments miss the point. This court sees no

indication that SHA does not “exist” in a literal sense. Rather,

Plaintiff simply neglected to include the entity’s full legal

name – specifically, omitting the words “the City of” – in its

filings. A search of the North Carolina Secretary of State

website reveals an active municipal entity with the legal name,

“Housing Authority of the City of Salisbury, North Carolina.”5

Moreover, SHA introduces itself as “Housing Authority of the

City of Salisbury, North Carolina” in the opening line of its

5 Business Registration, North Carolina Sec’y of State,

https://www.sosnc.gov/online_services/search/by_title/_Business_

Registration (last visited Sept. 17, 2024) (emphasis added).

memorandum in support of its motion to dismiss, (Defs. SHA &

Moore’s Br. (Doc. 13) at 1) (emphasis added)), and again in

several places throughout its reply brief, (Defs. SHA & Moore’s

Reply (Doc. 18) at 1, 6).

The issue here is a simple misnomer. Misnomers relate to

sufficiency of process, and dismissal, if appropriate, is

governed by Rule 12(b)(4). See, e.g., Connell v. Adams, No.

1:22-cv-935, 2023 WL 2914856, at *4 (M.D.N.C. Apr. 12, 2023). In

the present case, dismissal is not appropriate.

The prevailing standard in the Fourth Circuit is that “a

mere misnomer injures no one, and there is no reason why it

cannot be corrected by amendment.” Connell, 2023 WL 2914856, at

*4 (cleaned up) (quoting United States v. A.H. Fischer Lumber

Co., 162 F.2d 872, 874 (4th Cir. 1947)). “It has long been the

rule in this circuit that service of process is not legally

defective simply because the complaint misnames the defendant in

some insignificant way.” Morrel v. Nationwide Mut. Fire Ins.

Co., 188 F.3d 218, 224 (4th Cir. 1999); Miller v. Nw. Region

Libr. Bd., 348 F. Supp. 2d 563, 566-67 (M.D.N.C. 2004)

(rejecting a defendant’s argument that “there is no such entity”

when the defendant “clearly had notice of this action and should

have known that the action was brought against [it]”). “As a

general rule, the misnomer of a corporation . . . is immaterial

if it appears that [the corporation] could not have been, or was

not, misled.” A.H. Fischer Lumber Co., 162 F.2d at 873.

Defendant SHA could not have been, and was not, misled.

Indeed, SHA had clear notice of Plaintiff’s action. This is

evidenced by SHA’s prompt response to Plaintiff’s EEOC Complaint

and SHA’s ongoing engagement with the pleadings in the present

suit.

While this court notes that Plaintiff could have easily

corrected this misnomer prior to this point by filing a motion

to amend her Complaint, yet did not, it also recognizes a strong

preference within the Fourth Circuit for resolving cases on the

merits. See United States v. Shaffer Equip. Co., 11 F.3d 450,

462 (4th Cir. 1993). This court will allow Plaintiff twenty days

to amend her Complaint to include the proper name of Defendant

SHA: “Housing Authority of the City of Salisbury, North

Carolina.”

B. Motion to Dismiss ADA Claims Against Improper Defendants

Before addressing Plaintiff’s ADA claims on the merits,

Defendant Moore has raised issue as to proper party, (Doc. 13 at

12) and SHC has raised issues as to proper party and service of

process, (Doc. 20 at 11, 12). Assuming without deciding that

service of process on SHC was proper, this court finds that

neither Moore nor SHC are proper parties.

First, “[i]t is well-established that the ADA provides a

right of action against covered entities and not against

individual defendants.” Moore v. Ne. Univ., No. 1:18-cv-324,

2019 WL 825802, at *2 (M.D.N.C. Feb. 21, 2019) (citing Baird ex

rel. Baird v. Rose, 192 F.3d 462, 471–72 (4th Cir. 1999)). In

the present suit, Defendant Bradley Moore is an individual who

serves as “the Executive Director” of SHA. (Compl. (Doc. 1) ¶

9). As an individual who is not the employer, Moore is an

improper party and the ADA claims against him will be dismissed.

Second, to state an ADA claim, a plaintiff must plead that

the defendant “(1) fall[s] within the statutory definition of

‘employer’; and (2) exercised substantial control over

significant aspects of [her] compensation, terms, conditions, or

privileges of employment.” Miller v. Ingles, No. 1:09-cv-200,

2009 WL 4325218, at *7, (W.D.N.C. Nov. 24, 2009) (citing

Magnuson v. Peak Tech. Servs., Inc., 808 F. Supp. 500, 507 (E.D.

Va. 1992), aff'd, 40 F.3d 1244 (4th Cir. 1994)). A plaintiff

must show that the defendant is not just an employer within the

requirements of the ADA but is the plaintiff’s employer.

Defendant SHC argues that Plaintiff never alleged in its

Complaint that SHC is Plaintiff’s employer. (Def. SHC’s Br.

(Doc. 20) at 12–13.) This court agrees. In relevant portions of

her Complaint, Plaintiff states that SHC: (1) “is a nonprofit

corporation registered with the Secretary of State, and does

business in Salisbury, NC”; (2) “together with [SHA] is

responsible for the administration and distribution of [Section

8] funds”; and (3) “is an employer as defined by the ADA.”

(Compl. (Doc. 1) ¶ 11.)

However, Plaintiff provides no facts that tie SHC’s status

as an employer to SHC being Plaintiff’s employer. Rather,

Plaintiff pleads that “Defendants hired Plaintiff into a full-

time position . . . for the SHA.” (Compl. (Doc. 1) ¶ 2 (emphasis

added)); see also id. ¶ 8.) Plaintiff’s full-time position

required her to work “in the main office of the SHA.” (Id. ¶ 12

(emphasis added)). In fact, it appears Plaintiff refers

exclusively to SHA, and not once to SHC, throughout the “Facts”

section of her Complaint. (See generally id.) Moreover,

Plaintiff does not rebut SHC’s arguments on this point.

Therefore, in addition to this court’s own finding that

Plaintiff failed to plead facts that SHC is her employer, this

court furthers considers the argument to be conceded by

Plaintiff based on her lack of response in her successive

filing. See Hadley v. City of Mebane, No. 1:18-cv-366, 2020 WL

1539724, at *6–7 (M.D.N.C. Mar. 31, 2020).

Based on this analysis of the threshold issues concerning

Moore and SHC, this court finds SHA to be the sole proper

defendant and, accordingly, Plaintiff’s ADA claims will be

dismissed as to SHC and Moore. This court will address the

merits of Plaintiff’s ADA claims against SHA below.

C. Motion to Dismiss ADA Claims for Failure to Plead

Elements

Plaintiff contends that Defendant SHA’s actions violated

the Americans with Disabilities Act of 1990 (“ADA”) on two

grounds. First, Plaintiff alleges that Defendant failed to

provide a reasonable accommodation for her disability. (Compl.

(Doc. 1) ¶¶ 159-164.) Second, Plaintiff alleges Defendants

retaliated against Plaintiff by terminating her after she

engaged in the protected action of discussing her disability

with her supervisors and asking to identify a reasonable

accommodation. (Id. at ¶¶ 165-173.) Defendant argues that

Plaintiff’s claims fail as a matter of law because Plaintiff

cannot establish a prima facie case of disability discrimination

under the ADA. (See Defs. SHA & Moore’s Br. (Doc. 13) at 12–18.)

As with other employment discrimination claims, a plaintiff

bringing a claim for relief under the ADA is not required to

establish a prima facie case of discrimination or satisfy any

heightened pleading standard at the motion to dismiss stage. See

Swierkiewicz v. Sorema N. A., 534 U.S. 506, 515 (2002);

McCleary-Evans v. Md. Dep’t of Transp., State Highway Admin, 780

F.3d 582, 584–85 (4th Cir. 2015). However, the plaintiff is

“required to allege facts to satisfy the elements of a cause of

action created by that statute.” See McCleary-Evans, 780 F.3d at

585; Bing v. Brivo Sys., LLC, 959 F.3d 605, 616 (4th Cir. 2020).

In other words, “the ordinary rules for assessing the

sufficiency of a complaint apply.” Swierkiewicz, 534 U.S. at

511.

Failure to Accommodate

The ADA “prohibits employers from ‘discriminat[ing]’

against ‘qualified individual[s] on the basis of disability.’ An

employer unlawfully discriminates against an employee by, among

other things, failing to ‘mak[e] reasonable accommodations to

the known physical or mental limitations of an otherwise

qualified individual with a disability who is an applicant or

employee.’” Laird v. Fairfax Cnty., Va., 978 F.3d 887, 892 (4th

Cir. 2020) (internal citations to statute omitted). A

“reasonable accommodation” may include “making existing

facilities used by employees readily accessible to and usable by

individuals with disabilities.” 42 U.S.C. § 12111(9)(A).

Thus, this court must determine whether Plaintiff “has

alleged facts to satisfy” the elements of the failure to

accommodate cause of action created by the ADA. See McCleary-

Evans, 780 F.3d at 585. While Plaintiff is not required to

assert a prima facie case of failure to accommodate, see id., to

the extent that Plaintiff pleaded facts that address prima facie

elements, these facts are helpful for the court to determine

whether Plaintiff has alleged an ADA claim that is “plausible on

its face” as required by Iqbal and Twombly. Cf. Gaines v. Balt.

Police Dep’t, 657 F. Supp. 3d 708, 734 (D. Md. 2023) (“Although

a plaintiff need not assert a prima facie case . . . to survive

a Rule 12(b)(6) motion, references to the [prima facie] elements

. . . is helpful to gauge the sufficiency of the allegations.”).

The prima facie elements of an ADA failure to accommodate

claim are as follows: “(1) that [s]he was an individual who had

a disability within the meaning of the statute; (2) that the

employer had notice of [her] disability; (3) that with

reasonable accommodation [s]he could perform the essential

functions of the position; and (4) that the employer refused to

make such accommodation.” Wirtes v. City of Newport News, 996

F.3d 234, 238–39 (4th Cir. 2021).

Within the meaning of the ADA, a disability is “a physical

or mental impairment that substantially limits one or more major

life activities.” 42 U.S.C. § 12102(1)(a). “Examples of ‘major

life activities' include ‘functions such as caring for oneself,

performing manual tasks, walking, seeing, hearing, speaking,

[thinking,] breathing, learning, and working.’” Lochridge v.

City of Winston-Salem, 388 F. Supp. 2d 618, 625 (M.D.N.C. 2005)

(quoting 29 C.F.R. § 1630.2(j)). According to the Code of

Federal Regulations, “[t]he term ‘substantially limits’ sh[ould]

be construed broadly in favor of expansive coverage” and “is not

meant to be a demanding standard.” 29 C.F.R. § 1630.2(j)(1)(i).

Defendant SHA argues that Plaintiff does not have a

“physical or mental impairment that substantially limits [a]

major life activity” because she “fails to state what major life

activities” her purported disability limits. (Defs. SHA &

Moore’s Br. (Doc. 13) at 13, 15.) However, SHA’s argument

overlooks Plaintiff’s contention that she experiences physical

“immune system reactions such as mild to severe breathing

difficulty” as well as “foggy thinking.” (Compl. (Doc. 1) ¶ 14.)

As detailed above, “breathing” and “thinking” are “major life

activities” expressly enumerated by the Code of Federal

Regulations.

Although the Complaint provides only a few details about

Plaintiff’s condition, this court finds the facts and reasonable

inferences drawn from those facts sufficient to plausibly allege

a disability. Whether or not Plaintiff’s sensitivity and alleged

physical difficulties are sufficient to establish a “substantial

limit” on “one or more major life activities” are matters that

will have to be addressed following discovery.

Next, Defendant argues that Plaintiff’s sought

accommodation was unreasonable, and that no reasonable

accommodation would have allowed Plaintiff to perform the

essential functions of her job. (See Defs. SHA & Moore’s Br.

(Doc. 13) at 15–18.) Defendant contends that “it is apparent

that Plaintiff’s ‘requested accommodation’ required nothing less

than an entirely scent-free workplace.” (Id. at 16 (citing

Compl. (Doc. 1) ¶¶ 84, 85)). Indeed, Plaintiff discussed a

“scent-free” workplace policy with her manager on multiple

occasions, (Compl. (Doc. 1) ¶¶ 84, 126), and even opines in her

Complaint that such a policy would have been “a reasonable

accommodation for [her] disability,” (id. ¶ 126).

Defendant argues that the majority position of district

courts within the Fourth Circuit is that a “scent-free”

workplace is not a reasonable accommodation under the ADA. (See

Def. SHA’s Br. (Doc. 13) at 16-17) (citing Feldman v. Charlotte-

Mecklenburg Bd. of Educ., No. 3:11-cv-34, 2012 WL 3619078, at *7

(W.D.N.C. Aug. 21, 2012); Anderson v. Sch. Bd. Of Gloucester

Cnty., No. 3:18-cv-745, 2022 WL 732231, at *12 (E.D. Va. Mar.

10, 2022); Call v. Panchanathan, No. 1:20-cv-260, 2021 WL

4206423, at *4 (E.D. Va. Sept. 15, 2021).) However, Feldman,

Anderson, and Call each addressed the issue at summary judgment

with the benefit of a more fulsome record of evidence.

Moreover, while the Feldman court stated that “it is

Plaintiff’s burden to demonstrate that there is some reasonable

accommodation that could have allowed her to perform the

essential functions of her job,” Feldman, 2012 WL 3619078, at *7

(citing Tyndall v. Nat'l Educ. Ctrs., Inc. of Cal., 31 F.3d 209,

213 (4th Cir. 1994)), the court also instructed that “[o]nce an

employee informs her employer of the need for a reasonable

accommodation it is the responsibility of both the employee and

the employer to determine what precise accommodation is

necessary.” Id. It can be reasonably inferred from Plaintiff’s

Complaint that SHA did not meaningfully engage in back-and-forth

discussion to determine whether a reasonable accommodation

existed. While Plaintiff referenced a “scent-free” environment

to her supervisors, she also asked to discuss with her

supervisors “modifications to the workplace” that would allow

her to minimize “risk [of] exposure to substances to which she

had a known reaction,” (Compl. (Doc. 1) ¶ 167), and alleges that

“[i]nstead of receiving an accommodation or an opportunity to

discuss an accommodation,” she was fired, (id. ¶ 169).

At this stage of the pleadings, this court is not prepared

to draw the inference against Plaintiff that an entirely “scent

free” workplace was the only accommodation that would have

redressed her purported disability. For example, construing

reasonable inferences in favor of Plaintiff suggests the

following accommodations may have been available: (i) relocation

to an office with a working window would have allowed Plaintiff

to minimize her adverse reactions, (see Compl. (Doc. 1) ¶¶ 29,

132, 144); (ii) management could have promptly notified and

educated staff about Plaintiff’s sensitivity, “asked staff not

to spray chemicals or fragrances or burn candles,” and “taken

the air freshener cans and dispensers out of the office” to cut

down on unnecessary introductions of certain scented substances,

(see id. ¶ 68, 103), short of the complete ban on all

fragrances. Discovery may reveal more.

Defendant SHA does not argue in detail the second or fourth

elements of a prima facie case for failure to accommodate - that

Defendant had notice of Plaintiff’s purported disability and

that Defendant refused to make accommodations. Likewise, this

court finds that both elements were sufficiently plead by

Plaintiff. According to Plaintiff, she notified her supervisor

of her purported disability on multiple occasions, (see, e.g.,

id. ¶¶ 35–36, 69, 79, 124), and was fired before accommodations

were provided, (id. ¶ 138).

For the reasons stated above, Defendant SHA’s motion to

dismiss Plaintiff’s ADA claim for failure to accommodate will be

denied.

Retaliation

The ADA “prohibits retaliation against employees who seek

the Act’s statutory protections.” Laird, 978 F.3d at 892 (citing

42 U.S.C. § 12203(a)–(b)). As explained above, Plaintiff is not

required to plead the prima facie elements of an ADA retaliation

claim, yet those prima facie elements, when pleaded, may be

instructive to the court. The prima facie elements of an ADA

retaliation claim are: “(1) that she has engaged in conduct

protected by the ADA; (2) that she suffered an adverse action

subsequent to engaging in the protected conduct; and (3) that

there was a causal link between the protected activity and the

adverse action.” Freilich v. Upper Chesapeake Health, Inc., 313

F.3d 205, 216 (4th Cir. 2002).

Defendant SHA does not directly contest Plaintiff’s

retaliation claim. Instead, SHA argues (as discussed above) that

Plaintiff does not have an ADA-recognized disability and that

there were no reasonable accommodations for her chemical

sensitivities. Having found that Plaintiff met her burden for

these arguments in her pleadings, this court likewise finds that

Plaintiff has sufficiently plead the elements of a retaliation

claim. Plaintiff sought to discuss accommodations for her

disability with a supervisor, (Compl. (Doc. 1) ¶ 127), and

during that very same conversation she was fired, (id. ¶ 138).

As such, SHA’s motion to dismiss Plaintiff’s ADA

retaliation claim will be denied.

C. Motion to Dismiss for Failure to State an NCPDPA Claim

Plaintiff additionally asserts a claim of discrimination in

violation of the North Carolina Persons with Disabilities

Protection Act (“NCPDPA”). N.C. Gen. Stat. § 168A-1 et seq. “The

NCPDPA creates a cause of action for a person with a disability

who is aggrieved by a discriminatory practice as defined in the

act.” Cone ex rel. Cone v. Randolph Cnty. Schs., 302 F. Supp. 2d

500, 514 (M.D.N.C. 2004), aff'd sub nom. Cone v. Randolph Cnty.

Schs., 103 F. App'x 731 (4th Cir. 2004) (citing § 168A-11(a)).

Claims under the NCPDPA, however, are limited in

that “no court shall have jurisdiction over an action

filed under this Chapter where the plaintiff has

commenced federal judicial or administrative

proceedings under . . . the Americans with

Disabilities Act of 1990 . . . involving or arising

out of the facts and circumstances involved in the

alleged discriminatory practice under this Chapter.

Id. (quoting § 168A-11(c)). “Thus courts will dismiss a

plaintiff's claims under the NCPDPA when they arise out of the

same facts as a claim under the Rehabilitation Act or ADA.” Id.

Here, Plaintiff’s claim for relief under the NCPDPA arises from

the same facts as her ADA claim, and thus fails as a matter of

law. Plaintiff’s claim under the NCPDPA will be dismissed

against all defendants.

Vv. CONCLUSION

For the foregoing reasons,

IT IS THEREFORE ORDERED that Salisbury Housing Corporation,

Inc.’s Motion to Dismiss, (Doc. 19), is GRANTED and all claims

against Salisbury Housing Corporation, Inc. are DISMISSED.

IT IS FURTHER ORDERED that the Housing Authority of the City

of Salisbury, North Carolina and Bradley Moore’s Motion to

Dismiss, (Doc. 12), is GRANTED IN PART AND DENIED IN PART. All

claims against Defendant Moore are DISMISSED. Further,

Plaintiff’s NCPDPA claim against the Housing Authority of the

City of Salisbury, North Carolina is DISMISSED. In all other

respects, the motion is DENIED.

This the 30th day of September, 2024.

Woelie Pilens Mt

United States District Jyspe

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