Brian Whitaker v. PQ Newport Beach Bakery, Inc.

Court lacked subject-matter jurisdiction of age discrimination claim against school board where employee elected to file OCRC charge tortious violation of rights not recognized claim under Ohio law employee failed to submit proper evidence to support disability discrimination claim employee failed to make prima facie case of retaliation conduct supporting IIED claim not sufficiently extreme and outrageous no abuse of discretion in affirming termination under R.C. 3319.16.

<bold>1. Appeal and Error — appealability —</bold> <bold>interlocutory order — substantial right</bold> <block_quote> Although plaintiff's appeal from the trial court's order dismissing his claim under the North Carolina Persons with Disabilities Protection Act is an appeal from an interlocutory order<page_number>Page 816</page_number> based on the fact that two claims remain at the trial level, plaintiff is entitled to immediate appeal based on a substantial right, because: (1) plaintiff's North Carolina Disabilities Act claim and his claim for wrongful discharge in violation of public policy, which remains at the trial court level, unquestionably involve the same facts and circumstances; and (2) if the appeal is refused, two trials and possibly inconsistent verdicts could result.</block_quote> <bold>2. Disabilities — North Carolina Persons with</bold> <bold>Disabilities Protection Act — Americans with Disabilities</bold> <bold>Act — Equal Employment Opportunity Commission claim</bold> <bold>commenced — concurrent jurisdiction not allowed</bold> <block_quote> The trial court did not err by dismissing plaintiff's claim under the North Carolina Persons with Disabilities Protection Act (NC Disabilities Act) pursuant to N.C.G.S. § <cross_reference>168A-11</cross_reference>(c) after plaintiff commenced an Equal Employment Opportunity Commission (EEOC) claim, because: (1) the General Assembly has disallowed concurrent jurisdiction over an NC Disabilities Act claim and an Americans with Disabilities Act claim that arises out of the same facts and circumstances; (2) plaintiff's claim was still being investigated at the EEOC at the time of his state court filing thus making it fall within the NC Disabilities Act's language of "commenced federal administrative proceedings" and thereby removing it from the subject matter jurisdiction of the state court; and (3) the fact that defendant's motion to dismiss was not heard until after the EEOC had issued plaintiff's righ

Summary judgment in favor of appellee on claims of disability discrimination and retaliation is appropriate where appellant provided no evidence that he was able to perform the functions of the job, even with a reasonable accommodation, or that he engaged in a protected activity, respectively. Trial court does not abuse its discretion in denying motion for leave to amend the complaint where motion was untimely filed after summary judgment motion, resulting in prejudice to appellee.