An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                               NO. COA13-1138
                       NORTH CAROLINA COURT OF APPEALS

                               Filed:     3 June 2014


SANDRA MARIE JOHNSON,
     Plaintiff,

      v.                                       Guilford County
                                               No. 13 CVS 6142


McNAIRY & ASSOCIATES,
JIM & JEANNE LLC,
JIM & JEANNE McNAIRY,
     Defendants.


      Appeal by plaintiff from order entered 7 August 2013 by

Judge Richard Doughton in Guilford County Superior Court.                     Heard

in the Court of Appeals 6 February 2014.


      Sandra Marie Johnson, pro se, for plaintiff-appellant.

      Tuggle Duggins, PA, by Denis E. Jacobson, for defendants-
      appellees.


      DAVIS, Judge.


      Sandra Marie Johnson (“Plaintiff”) appeals from an order

granting     the    motion     to    dismiss     of    Defendants      McNairy     &

Associates, Jim & Jeanne LLC, Jim McNairy, and Jeanne McNairy

(collectively “Defendants”) pursuant to Rules 12(b)(1) and (6)
                                            -2-


of the North Carolina Rules of Civil Procedure.                           After careful

review, we affirm.

                                        Factual Background

       We    have    summarized           the    pertinent      facts      below        using

Plaintiff’s own statements from her complaint, which we treat as

true    in    reviewing       the       trial    court’s    order     dismissing         her

complaint under Rule 12(b)(6).                    See, e.g., Stein v. Asheville

City Bd. of Educ., 360 N.C. 321, 325, 626 S.E.2d 263, 266 (2006)

(“When reviewing a complaint dismissed under Rule 12(b)(6), we

treat a plaintiff’s factual allegations as true.”).

       From August 2009 until 3 September 2010, Plaintiff was an

employee     of     McNairy    &    Associates,         where   she       worked    as    an

administrative        assistant.            On    15    July    2010,      one     of    the

appraisers working in the office, Tim Johnson (“Mr. Johnson”),

made a series of racist and derogatory comments to Plaintiff

concerning her boyfriend.                Specifically, Mr. Johnson (1) called

Plaintiff’s        boyfriend       “a    wet     back   [sic]”;     (2)     referred      to

Plaintiff’s boyfriend “as a filthy disgusting low life”; and (3)

told Plaintiff “that she amounts to nothing, that her life is a

big fat zero because of her choices.”                     Mr. Johnson yelled these

statements across the room for the entire office to hear.

       On 21 July 2010, Plaintiff told Doris Holt (“Ms. Holt”),

the office manager, that she was contemplating filing a charge

against      Mr.    Johnson     with       the    Equal    Employment       Opportunity
                                          -3-


Commission    (“EEOC”).       Ms.    Holt       relayed       this   information     to

Jeanne McNairy, one of the co-owners of McNairy & Associates.

     Plaintiff      subsequently     began       to    feel    as    though   she   was

being ignored by Jim McNairy, the other co-owner of McNairy &

Associates.      On 19 August 2010, Plaintiff received a negative

performance review from Laura Rich (“Ms. Rich”) and Nancy Tritt.

Several   days      after    the    performance         review       was   conducted,

Plaintiff was told in confidence by an unidentified individual

that during a meeting Jim McNairy had instructed the appraisers

working for McNairy & Associates to “give [her] some task or

criticism and report back to him if [she] was unpleasant or

resistant.”      On 3 September 2010, Plaintiff was fired by Ms.

Rich,   who   was   acting    on    Jim     McNairy’s     instructions,        on   the

ground that the appraisers had lost confidence in her ability to

do her job.

     On 1 March 2011, Plaintiff filed a charge of discrimination

with the EEOC against McNairy & Associates in which she alleged

a violation of her rights under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”).                        The EEOC

investigated     Plaintiff’s       charge       and,   according      to   Plaintiff,

issued her a right-to-sue letter.1

     Plaintiff      subsequently      filed       a    pro     se    action    against

1
  There is nothing in the record — outside of Plaintiff’s
assertion in her complaint — that indicates the EEOC actually
issued her a right-to-sue letter.
                                         -4-


Defendants in the United States District Court for the Middle

District of North Carolina, alleging that her discharge was in

violation of Title VII and 42 U.S.C. § 1981 (“§ 1981”) and also

constituted a wrongful discharge in violation of public policy

under North Carolina law.           On 6 June 2012, the federal district

court entered an order (1) dismissing with prejudice Plaintiff’s

Title VII claim against McNairy & Associates as well as her §

1981 claims against all Defendants pursuant to Rule 12(b)(6) of

the Federal Rules of Civil Procedure based on her failure to

state a claim upon which relief could be granted; (2) dismissing

without prejudice Plaintiff’s Title VII claims against Jim &

Jeanne LLC, Jim McNairy, and Jeanne McNairy for lack of subject

matter jurisdiction pursuant to Rule 12(b)(1) of the Federal

Rules    of     Civil    Procedure;      and    (3)    declining          to    exercise

supplemental      jurisdiction     over     Plaintiff’s          wrongful      discharge

claims     arising      under    North    Carolina         law     and,        therefore,

dismissing those claims without prejudice.                       Plaintiff appealed

the order to the United States Court of Appeals for the Fourth

Circuit, but her appeal was dismissed.                     Johnson v. McNairy &

Assocs., 489 F. App’x 731 (4th Cir. 2012).

    On     4    June    2013,   Plaintiff      filed   a   pro     se   complaint      in

Guilford       County   Superior    Court      against     the     same        Defendants

asserting the same claims for relief that she had raised in her

federal lawsuit based on the same factual events.                              Defendants
                                             -5-


moved to dismiss Plaintiff’s complaint pursuant to Rule 12(b)(6)

of the North Carolina Rules of Civil Procedure.                            On 7 August

2013,     the     trial       court     entered     an    order      (1)    dismissing

Plaintiff’s       Title      VII    claims    against    Jim   &   Jeanne     LLC,    Jim

McNairy,    and       Jeanne   McNairy       with   prejudice      pursuant    to    Rule

12(b)(1);       and    (2)   dismissing       all   of   Plaintiff’s       claims    with

prejudice pursuant to Rule 12(b)(6).                     Plaintiff filed a timely

notice of appeal to this Court.

                                             Analysis

I. Applicability of Res Judicata as to Claim Under Title VII
   Against Defendant McNairy & Associates and as to § 1981
   Claims Against All Defendants

    “The        doctrines      of     res    judicata    (claim     preclusion)       and

collateral estoppel (issue preclusion) are companion doctrines

which have been developed by the Courts for the dual purposes of

protecting litigants from the burden of relitigating previously

decided    matters      and    promoting      judicial     economy    by    preventing

needless litigation.”              Williams v. Peabody, 217 N.C. App. 1, 5,

719 S.E.2d 88, 92 (2011) (citation and quotation marks omitted).

            In order to successfully assert the doctrine
            of res judicata, a litigant must prove the
            following essential elements: (1) a final
            judgment on the merits in an earlier suit,
            (2) an identity of the causes of action in
            both the earlier and the later suit, and (3)
            an identity of the parties or their privies
            in the two suits.
                                          -6-


Moody v. Able Outdoor, Inc., 169 N.C. App. 80, 84, 609 S.E.2d

259, 262 (2005).

    Under North Carolina law, res judicata is an affirmative

defense, and, as a result, must ordinarily be asserted in a

responsive pleading.           See N.C.R. Civ. P. 8(c).            A review of the

record in this case reveals that Defendants filed only a Rule

12(b)(6)      motion    to     dismiss     and     did    not   file    an   answer.

Nevertheless,       “[i]f    the     complaint     discloses    an     unconditional

affirmative defense which defeats the claim asserted or pleads

facts which deny the right to any relief on the alleged claim it

will be dismissed.”             Sutton v. Duke, 277 N.C. 94, 102, 176

S.E.2d 161, 166 (1970).

    In her complaint filed in Guilford County Superior Court,

Plaintiff acknowledged that she was refiling her entire federal

complaint     in    state    court.        She     also   stated     that    she   was

attaching to her complaint “[t]he Federal Court docket including

dates of filings . . .”               It is not entirely clear whether the

federal court’s order was contained among the attachments to the

complaint.      However, that order is contained in the record on

appeal   in    this    case.         Moreover,    Plaintiff’s      appellate   brief

freely     acknowledges        the    dismissal     of    her   federal      lawsuit.

Therefore,     we     deem   it      appropriate    to    consider     the    federal

court’s order for purposes of determining the applicability of

res judicata.
                                              -7-


       “Whether the doctrine of res judicata operates to bar a

cause   of   action       is   a     question       of   law    reviewed        de   novo       on

appeal.”      Mount       Ulla     Historical       Pres.      Soc'y,      Inc.      v.   Rowan

County,    ___     N.C.    App.      ___,    ___,    754    S.E.2d       237,    240      (2014)

(citation,       quotation       marks,      and    brackets        omitted).          In      the

present case, there is no question as to the second and third

elements     of     res    judicata         being    fully     established.               It    is

apparent on the face of the complaint that both the parties and

the claims presented are identical.                      Indeed, by Plaintiff’s own

admission, she simply refiled in Guilford County Superior Court

the same complaint naming the same Defendants that she filed in

federal court.

       With regard to the first element, it is undisputed that the

federal court’s order dismissed with prejudice Plaintiff’s Title

VII claim as to Defendant McNairy & Associates as well as her §

1981 claims against all Defendants.                        Therefore, because there

was a final decision on the merits as to these claims, the first

element of res judicata — like the second and third elements —

is satisfied as to them.               See Riviere v. Riviere, 134 N.C. App.

302, 306, 517 S.E.2d 673, 676 (1999) (holding that dismissal

with    prejudice         indicates         disposition        on    merits       precluding

subsequent        litigation).          Consequently,          the       doctrine      of      res

judicata     serves       to   bar    these    claims      and      as    such    they      were

properly dismissed by the trial court.
                                          -8-


    As to Plaintiff’s remaining claims, however, the federal

court’s       order     specifically        dismissed            without     prejudice

Plaintiff’s Title VII claims against Defendants Jim & Jeanne

LLC, Jim McNairy, and Jeanne McNairy as well as the claims based

upon North Carolina law.            Accordingly, res judicata does not

apply to those claims.           See Estate of Means v. Scott Elec. Co.,

207 N.C. App. 713, 718, 701 S.E.2d 294, 298 (2010) (recognizing

that dismissals operate as adjudication on merits unless trial

court specifies dismissal is without prejudice).

II. Title VII Claims Against Jim & Jeanne LLC, Jim McNairy, and
    Jeanne McNairy

    The trial court ruled that it did not have subject matter

jurisdiction over the Title VII claims against Defendants Jim &

Jeanne LLC, Jim McNairy, or Jeanne McNairy and, therefore, ruled

that these claims were subject to dismissal pursuant to Rule

12(b)(1).       North    Carolina    Rule       of   Civil       Procedure     12(b)(1)

allows for the dismissal of a claim when a court lacks subject

matter jurisdiction.         N.C.R. Civ. P. 12(b)(1).              “Whether a trial

court   has    subject-matter      jurisdiction         is   a    question       of   law,

reviewed de novo on appeal.”           McKoy v. McKoy, 202 N.C. App. 509,

511, 689 S.E.2d 590, 592 (2010).

    Defendants        Jim    &   Jeanne     LLC,     Jim     McNairy,      and    Jeanne

McNairy     argue     that   the   trial        court   lacked       subject      matter

jurisdiction     over    Plaintiff’s       Title     VII     claims     against       them
                                       -9-


because Plaintiff failed to exhaust her administrative remedies

in connection with these claims.               “In order to have a viable

claim    under    Title    VII,   a   plaintiff      must   exhaust    available

administrative remedies, file a claim with the Equal Employment

Opportunity      Commission   (EEOC)      in   a   timely   fashion,    obtain   a

right to sue letter from the EEOC, and bring suit within 90 days

of the letter.”      Paquette v. Cty. of Durham, 155 N.C. App. 415,

419, 573 S.E.2d 715, 718 (2002), disc. review denied, 357 N.C.

165, 580 S.E.2d 695 (2003).           This Court has held that “[w]here a

plaintiff has failed to exhaust its administrative remedies, its

action brought in the trial court may be dismissed for lack of

subject matter jurisdiction.”          Vanwijk v. Prof’l Nursing Servs.,

Inc., 213 N.C. App. 407, 410, 713 S.E.2d 766, 768 (2011).

    “[R]eceipt of, or at least entitlement to, a right-to-sue

letter is a jurisdictional prerequisite that must be alleged in

a plaintiff’s complaint.”         Davis v. N.C. Dep’t of Corr., 48 F.3d

134, 140 (4th Cir. 1995).              In the present case, Plaintiff’s

complaint alleges that she received a right-to-sue letter from

the EEOC and that the letter was submitted by her to the federal

court.    She further alleges that she has exhausted all of her

administrative remedies.          Therefore, we believe the trial court

was premature in dismissing her Title VII claims pursuant to

Rule 12(b)(1).

    However,       the    trial   court    also    dismissed   the     Title   VII
                                        -10-


claims against these Defendants for failure to state a claim

upon     which   relief     can    be    granted    under       Rule    12(b)(6).

Accordingly, we must next determine whether dismissal under that

ground was appropriate.

       On appeal, we review a motion to dismiss based on Rule

12(b)(6) de novo.     Ventriglia v. Deese, 194 N.C. App. 344, 347,

669 S.E.2d 817, 819 (2008).               We must determine whether “the

allegations of the complaint, if treated as true, are sufficient

to state a claim upon which relief can be granted under some

legal    theory.”    Bridges      v.    Parrish,   366   N.C.    539,   541,   742

S.E.2d 794, 796 (2013) (citation and quotation marks omitted).

       We conclude that Plaintiff’s Title VII claims against these

remaining Defendants are barred by the doctrine of collateral

estoppel and, as a result, were properly dismissed by the trial

court.

            The elements of collateral estoppel, as
            stated by our Supreme Court, are as follows:
            (1) a prior suit resulting in a final
            judgment on the merits; (2) identical issues
            involved;   (3)  the   issue  was   actually
            litigated in the prior suit and necessary to
            the judgment; and (4) the issue was actually
            determined.

Bluebird Corp. v. Aubin, 188 N.C. App. 671, 678, 657 S.E.2d 55,

61 (citation omitted), disc. review denied, 362 N.C. 679, 669

S.E.2d 741 (2008).        “Whether the doctrine of collateral estoppel

is applicable and bars a specific claim or issue is a question
                                      -11-


of law subject to de novo review.”                 Powers v. Tatum, 196 N.C.

App. 639, 642, 676 S.E.2d 89, 92, disc. review denied, 363 N.C.

583, 681 S.E.2d 784 (2009).

            An issue is actually litigated, for purposes
            of collateral estoppel or issue preclusion,
            if it is properly raised in the pleadings or
            otherwise submitted for determination and is
            in   fact   determined.      A   very  close
            examination of matters actually litigated
            must be made in order to determine if the
            underlying issues are in fact identical; if
            they are not identical, then the doctrine of
            collateral estoppel does not apply.

Williams,    217   N.C.   App.   at    6,    719    S.E.2d   at   93   (internal

citations, quotation marks, and brackets omitted).

    In the present case, we are satisfied that the elements of

collateral estoppel have all been met.                The issues before the

trial court were identical to those before the federal district

court given that — as noted above — Plaintiff simply refiled her

original    complaint     in   Guilford     County    Superior    Court.    The

federal district court conducted a thorough analysis of whether

Plaintiff’s allegations were sufficient to state a claim under

Title VII.    The federal court ultimately concluded that

            the    complaint's    allegations   of   the
            statements made by a coworker on a single
            occasion — which Plaintiff acknowledges is
            the complete content of the alleged incident
            — fail to satisfy the requirement that her
            belief be objectively reasonable.   That is,
            such statements could not, as a matter of
            law,   have   constituted   such  severe  or
            pervasive conduct as to constitute a hostile
            work environment under [Title VII].
                                   -12-



      This adjudication by the federal court of the Title VII

claim against McNairy & Associates is sufficient to trigger the

application of collateral estoppel because the Title VII claims

against Jim & Jeanne LLC, Jim McNairy, and Jeanne McNairy are

based on the identical set of facts found by the federal court

to be insufficient to state a claim under Title VII.           Therefore,

based on the application of collateral estoppel, we conclude

that the trial court properly dismissed Plaintiff’s             Title VII

claims against Defendants Jim & Jeanne LLC, Jim McNairy, and

Jeanne McNairy pursuant to Rule 12(b)(6).

III. Wrongful Discharge Claims Against All Defendants

      Finally, Plaintiff      asserts claims against all Defendants

for wrongful discharge in violation of North Carolina public

policy.

           In North Carolina, employment is generally
           terminable   by  either   the   employer   or
           employee for any reason where no contract
           exists specifying a definite period of
           employment. This is a bright-line rule with
           very   limited  exceptions.      An   at-will
           employee may not be terminated: (1) for
           refusing to violate the law at the employers
           [sic] request, (2) for engaging in a legally
           protected activity, or (3) based on some
           activity by the employer contrary to law or
           public policy.

McDonnell v. Tradewind Airlines, Inc., 194 N.C. App. 674, 677,

670   S.E.2d   302,   305   (internal   citations   and   quotation   marks

omitted), disc. review denied, 363 N.C. 128, 675 S.E.2d 657
                                              -13-


(2009).

    “To        prevail      on    a     claim     for      unlawful          termination     in

violation of public policy a plaintiff must identify a specified

North Carolina public policy that was violated by an employer in

discharging the employee.”                   Id. at 677-78, 670 S.E.2d at 305.

Therefore,      while     notice        pleading      is     generally         sufficient    to

state a claim, our case law requires that wrongful discharge

claims be pled          with specificity.               Gillis v. Montgomery Cty.

Sheriff’s Dep’t, 191 N.C. App. 377, 379, 663 S.E.2d 447, 449,

appeal dismissed and disc. review denied, 362 N.C. 508, 668

S.E.2d    26    (2008).          To    meet    this     specificity           requirement,    a

plaintiff      must    allege         “specific      conduct        by   a    defendant    that

violated a specific expression of North Carolina public policy.”

Considine v. Compass Grp. USA, Inc., 145 N.C. App. 314, 321-22,

551 S.E.2d 179, 184, aff’d per curiam, 354 N.C. 568, 557 S.E.2d

528 (2001).

    Plaintiff         has   failed       to    allege        that    Defendants’        conduct

violated       any    specific         expression       of     North         Carolina    public

policy.         Accordingly,           the    trial     court        properly       dismissed

Plaintiff’s wrongful discharge claims pursuant to Rule 12(b)(6).

                                         Conclusion

    For the reasons stated above, the trial court’s order is

affirmed.

    AFFIRMED.
                         -14-


Judges CALABRIA and STROUD concur.

Report per Rule 30(e).
