An unpublished opinion of the North Carolina Court of Appeals does not constitute 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 defendantsappellees.

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)
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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 
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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.
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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 
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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.
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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.
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“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.
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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 
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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 
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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 
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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].
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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 
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(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.
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Judges CALABRIA and STROUD concur.

Report per Rule 30(e).