# BRISSON v. SALISBURY HOUSING AUTHORITY

> District Court, M.D. North Carolina · September 30, 2024

URL: https://www.frixlaw.com/law-library/cases/10653769

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** September 30, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10653769

## How later opinions describe it (automated extraction)

- 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]”

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10653769. Public record. Not legal advice.