Failure to Accommodate Cases

Patricia Butler vs. Verizon New England, Inc. No. 06-P-572. Essex. December 7, 2006. February 26, 2007. Present: Perretta, Laurence, & Grasso, JJ. Labor, Federal preemption, Collective bargaining. Federal Preemption. Anti-Discrimination Law, Handicap. Contract, Collective bargaining contract. Federal preemption principles arising under § 301 of the Federal Labor Management Relations Act (LMRA), 29 U.S.C. § 185(a) (1994), did not require dismissal of a unionized employee’s complaint against her employer alleging handicap discrimination in violation of G. L. c. 151B, in circumstances where the claim asserted a nonnegotiable State law right independent of the collective bargaining agreement between the employer and the union. [319-324] Civil action commenced in the Superior Court Department on July 22, 2005. Motions to dismiss and for reconsideration were heard by Richard E. Welch, III, J. Nancy A. Newark for the plaintiff. Brian H. Lamkin for the defendant. Grasso, J. Patricia Butler appeals from a judgment dismissing her complaint against Verizon New England, Inc. (Verizon), alleging handicap discrimination in violation of G. L. c. 15IB. The narrow question presented is whether Federal preemption principles arising under § 301 of the Federal Labor Management Relations Act (LMRA), 29 U.S.C. § 185(a) (1994), require dismissal of Butler’s complaint. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 212-213 (1985) (Lueck). We conclude that Butler’s action is not preempted and reverse the judgment of dismissal. See Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 412-413 (1988) (Lingle). 1. Background. For purposes of Verizon’s motion, we consider the pertinent factual allegations of the complaint in the light most favorable to Butler. See Nader v. Citron, 372 Mass. 96, 97-98 (1977). Butler worked for Verizon for twenty years as a central office technician. During much of that time she worked at a Verizon location in Lowell, where she lived. Butler is also a member of the International Brotherhood of Electrical Workers (union), with whom Verizon has a collective bargaining agreement (CBA). In 1989, Butler was diagnosed with multiple sclerosis. Her illness affects her mobility and use of her lower extremities, permitting her to walk or drive only for short periods of time. Initially, she was able to perform the essential functions of her job with reasonable accommodation. For example, at her request, Verizon installed an electric door opener at her workplace to accommodate her illness. In October, 2002, as part of a company-wide work force adjustment, Verizon relocated Butler’s entire work group from Lowell to Manchester, New Hampshire. Butler sought an accommodation from Verizon, asserting that her illness prevented her from driving long distances and that the extra driving time would aggravate her illness. She requested that Verizon not transfer her to Manchester and allow her to remain in Lowell. Verizon denied this request. Butler then took leave under the Family and Medical Leave Act. When her leave expired in January, 2003, she returned to work. Verizon modified her work schedule to permit her to commute to Manchester with a coworker to reduce the stress of driving. According to Butler, this arrangement proved unsatisfactory because of frequent schedule conflicts with her coworker due to days off and appointments. Butler again requested that she be transferred back to Lowell, and Verizon again denied her request. In May, 2003, Butler retired, fearing that if she stayed she would miss too much work, get fired, and lose valuable retirement benefits. After lodging a complaint with the Massachusetts Commission Against Discrimination (MCAD), Butler commenced an action in Superior Court alleging that Verizon’s failure to accommodate her illness amounted to handicap discrimination in violation of G. L. c. 151B. Verizon moved to dismiss Butler’s complaint pursuant to Mass.R.Civ.P. 12(b)(1), 365 Mass. 754 (1974), asserting lack of subject matter jurisdiction, and under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), asserting that her claim was preempted by § 301 of the LMRA because it “directly and unavoidably implicate^] numerous provisions of the [CBA] between Verizon and the Union.” On the materials before him, the judge concluded that § 301 of the LMRA preempted Butler’s action. See Lueck, 471 U.S. at 212. We disagree. 2. Discussion. Whether Butler’s action is preempted turns on whether her claim of discrimination under G. L. c. 151B asserts a nonnegotiable State law right independent of the CBA, see Lingle, 486 U.S. at 412, or whether the claim is “inextricably intertwined” with that agreement. See Lueck, 471 U.S. at 213. The parties do not dispute that in considering Verizon’s motion to dismiss, the judge had before him only a portion of the CBA and not the entire agreement. Butler makes much of this in framing her arguments. She contends that without discovery and the opportunity to evaluate her G. L. c. 15 IB claim in light of the entire CBA, it cannot be said that her claim is “inextricably interconnected” with the interpretation of the CBA. Relying on Wright v. Universal Maritime Serv. Corp., 525 U.S. 70, 80 (1998), Butler argues that before a CBA may supersede an employee’s statutory right to claim employment discrimination or her right to a judicial forum for such a claim, the language in the CBA must be clear and unmistakable. Even then, Butler would have it, the LMRA would not preempt her G. L. c. 15 IB claim unless a mandatory grievance and arbitration procedure in the CBA specifically addressed the handling of a handicap discrimination or reasonable accommodation claim. A mandatory, but general, provision to grieve and arbitrate disputes would not suffice to require preemption of her State law claim.* ** See Lingle, 486 U.S. at 412-413 (“mere fact that a broad contractual protection . . . may provide a remedy for conduct that coincidentally violates state law does not make the existence or the contours of the state-law violation dependent upon the terms of the private contract” so as to require preemption). For its part, Verizon contends that in the particular circumstances of this case, whether the CBA specifically addresses handicap discrimination or reasonable accommodation is irrelevant because the accommodation requested by Butler (transfer back to Lowell) implicates company-wide work force adjustment provisions that are specifically addressed in the CBA. Verizon maintains that because (1) the accommodation requested would arguably require it to violate the CBA, and (2) such an accommodation is not “reasonable” and would defeat Butler’s claim of handicap discrimination, her claim is inextricably intertwined with the reduction in force provisions of the CBA so as to require preemption. See US Airways, Inc. v. Barnett, 535 U.S. 391, 394 (2002) (Barnett) (under Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. [1994] [ADA], absent special circumstances, “to show that a requested accommodation conflicts with the mies of a seniority system is ordinarily to show that the accommodation is not ‘reasonable’ ”). See also Labonte v. Hutchins & Wheeler, 424 Mass. 813, 816 n.5 (1997) (Federal cases decided under ADA serve as guide to interpretation of G. L. c. 151B). We reject both parties’ attempts at formulating the relevant issue. Whether a claim of discrimination is so “inextricably intertwined” with the CBA as to require dismissal on preemption grounds obviously requires consideration of the pertinent CBA provisions. After considering Butler’s complaint and the portions of the CBA cited by Verizon as requiring preemption, we conclude that Butler’s claim of handicap discrimination is not “inextricably intertwined” with the CBA. See Lingle, supra. In Lingle, supra, the United States Supreme Court considered whether an employee covered by a CBA that provided a contractual remedy for discharge without just cause could also enforce a State law remedy for retaliatory discharge. Id. at 401. There, the employer discharged the employee for filing a false workers’ compensation claim. Ibid. The employee and the union grieved the discharge under a CBA that prohibited discharge except for “proper” or “just” cause and provided a procedure for arbitration of “grievances,” broadly defined as encompassing “any dispute between ... the Employer and any employee, concerning the effect, interpretation, application, claim of breach or violation of this Agreement.” Id. at 401-402. An arbitrator ruled in the employee’s favor and ordered reinstatement with back pay. Id. at 402. Meanwhile, the employee sued for retaliatory discharge, alleging that she had been discharged for exercising her rights under the State’s workers’ compensation law. Ibid. Rejecting the employer’s contention that the claim for retaliatory discharge was preempted by § 301 of the LMRA, the Court concluded that the State law remedy for retaliatory discharge was independent of the contractual remedy contained in the CBA. Id. at 407. “[Section] 301 pre-emption merely ensures that federal law will be the basis for interpreting collective-bargaining agreements, and says nothing about the substantive rights a State may provide to workers when adjudication of those rights does not depend upon the interpretation of such agreements.” Id. at 409. Here, Butler’s claim of handicap discrimination, like that in Lingle, supra, is not “inextricably intertwined” with the pertinent terms of the CBA. Butler’s claim that Verizon unlawfully discriminated against her by failing to accommodate her handicap does not arise from any contractual right established under the CBA and is distinct from any other claim that she may have thereunder. Nor does her claim depend upon interpretation of the CBA. In subsequent exposition of the meaning and scope of § 301 preemption set forth in Lueck, supra, and Lingle, supra, the United States Supreme Court has underscored “that § 301 cannot be read broadly to pre-empt nonnegotiable rights conferred on individual employees as a matter of state law, and ... it is the legal character of a claim, as ‘independent’ of rights under the collective-bargaining agreement . . . (and not whether a grievance arising from ‘precisely the same set of facts’ could be pursued . . . ) that decides whether a state cause of action may go forward.” Livadas v. Bradshaw, 512 U.S. 107, 123-124 (1994) (footnote omitted). “[W]hen the meaning of contract terms is not the subject of dispute, the bare fact that a collective-bargaining agreement will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished.” Id. at 124. This case is markedly different from Lueck, 471 U.S. at 216, where resolution of the employee’s State law claim depended on the meaning of a CBA because the duties imposed and rights established under State law derived from the rights and obligations established by the CBA. In Lueck, the CBA provided the basis not only for the benefits claimed by the employee, but also for the right to payments in a timely manner, the alleged violation of which formed the basis of the State tort of bad faith handling of an insurance claim. Id. at 214-218. In considering whether the State tort remedy could be applied to the employer’s handling of a claim for disability benefits authorized by the collective bargaining agreement, the Court observed that the State tort remedy “exists for breach of a ‘duty devolv[ed] upon the insurer by reasonable implication from the express terms of the contract,’ the scope of which, crucially, is ‘ascertained from a consideration of the contract itself.’ ” Id. at 216, quoting from Hilker v. Western Auto. Ins. Co., 204 Wis. 1, 16 (1931). Because the parties’ agreement as to how a benefit claim would be handled was necessarily relevant to the State tort alleging that the claim was handled in a dilatory manner, § 301 preempted application of the State tort remedy. Id. at 218-219. Here, as in Lingle, supra, and unlike in Lueck, supra, Butler’s State law remedy for handicap discrimination is independent of the CBA between Verizon and the union in the sense of “independent” that matters for § 301 preemption purposes: resolution of Butler’s State law claim of handicap discrimination does not require construing the CBA. See Lingle, supra at 406-407. While analysis of Butler’s claim of handicap discrimination might well involve attention to the same factual considerations as the contractual determination whether the accommodation (transfer to Lowell) implicates the work force adjustment provisions of the CBA, such parallelism does not render her handicap discrimination claim dependent on analysis of the CBA. Id. at 408. “[Ejven if dispute resolution pursuant to a collective-bargaining agreement, on the one hand, and state law, on the other, would require addressing precisely the same set of facts, as long as the state-law claim can be resolved without interpreting the agreement itself, the claim is ‘independent’ of the agreement for § 301 pre-emption purposes.” Id. at 409-410. We are not persuaded that the CBA terms relating to work force adjustment identified by Verizon transform Butler’s claim of handicap discrimination by failure to accommodate into one that is “inextricably intertwined” with the CBA. We recognize that, at summary judgment or at trial, seniority or other provisions of the CBA such as those addressing work force adjustment may enable Verizon to prevent Butler from satisfying her burden of establishing that it failed to provide her with a reasonable accommodation. See Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 453 (2002). See also Barnett, 535 U.S. at 393-394. Nevertheless, such evidence does not render Butler’s claim “inextricably intertwined” with the CBA so as to require § 301 preemption. Even under Barnett, supra, an employee is “free to present evidence of special circumstances that make ‘reasonable’ a seniority rule exception in the particular case.” Id. at 394. Moreover, “the employee’s initial request for an accommodation . . . triggers the employer’s obligation to participate in the interactive process of determining one.” Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. at 457, quoting from Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165 (5th Cir.), cert. denied, 519 U.S. 1029 (1996). See Andover Hous. Authy. v. Shkolnik, 443 Mass. 300, 308 (2005). The factual variables that may make summary judgment inappropriate speak even more forcefully to the impropriety of dismissal on preemption grounds of an independent State law claim such as Butler’s before discovery and before opportunity to demonstrate, if necessary, that special circumstances warrant a finding that the requested accommodation is “reasonable” notwithstanding any reduction in force provisions to the contrary. See Barnett, supra at 405. We also reject Verizon’s contention that Butler’s references to the CBA in her complaint transform her statutory claim into one under the CBA itself or so implicate the CBA as to render her claim inextricably intertwined with it. This attempt to recharacterize Butler’s complaint ignores the gravamen of her claim, which is that Verizon violated her rights under G. L. c. 15IB, not those contained in a CBA, by failing to make reasonable accommodation for her handicap. The fact that further factual allegations of Butler’s complaint may seek to counter Verizon’s anticipated defense that the requested accommodation would violate CBA provisions does not transform that complaint into a claim under the CBA or one that requires interpretation of the CBA for resolution. “The cause of action [Butler] asserts arises not out of contract, but out of [State law, G. L. c. 151B], and is distinct from any right conferred by the collective-bargaining agreement.” Wright v. Universal Maritime Serv. Corp., 525 U.S. at 79. As Verizon did not cross-appeal from the judge’s denial of its Mass.R.Civ.P. 12(b)(1) motion asserting that the Superior Court lacked subject matter jurisdiction due to Butler’s failure to exhaust administrative remedies, we need not resolve that issue. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). In any event, that contention would fail for the reason just discussed. The essence of Butler’s complaint is that Verizon’s failure to accommodate her by retransferring her to Lowell violated the statutory prohibition against discrimination in G. L. c. 151B, not a contractual right under the CBA. Moreover, from all that appears, and as conceded by Verizon, nothing in the available portions of the CBA makes Butler’s claim of handicap discrimination a subject of mandatory grievance and arbitration under the CBA so as to require that Butler grieve Verizon’s failure to transfer her before commencing a statutory action. The judgment of dismissal is reversed and the matter is remanded to the Superior Court for further proceedings. So ordered. Butler did not file a grievance under the CBA regarding Verizon’s failure to accommodate her request for transfer to Lowell or its failure to request a waiver of force adjustment provisions on her behalf. Although not material to our decision, Butler’s complaint alleges that the union challenged the transfer of the entire work group from Lowell to Manchester and, subsequent to Butler’s retirement, was successful in that challenge, with all individuals in the work group moved back to Lowell. Verizon also contended that the Superior Court lacked subject matter jurisdiction because Butler had failed to exhaust her administrative remedies under the CBA. Verizon maintained that Butler was required to resort to the grievance procedure of the CBA before seeking judicial relief. The judge rejected this argument. Verizon attached to its motion portions of the CBA, particularly art. G25, which governs work force adjustments and relocations and the procedures to be followed in implementing a work force adjustment. The parties do not contend that by considering this attachment the judge converted the motion to dismiss into a motion for summary judgment. At oral argument, Verizon conceded that the CBA does not specifically address handicap discrimination or reasonable accommodation. However, Verizon argues that the lack of such specific provision is not relevant because the accommodation requested by Butler, a transfer to Lowell, implicates company-wide work force adjustment provisions that are specifically addressed in the CBA. At oral argument, Butler conceded that if the CBA were to address how Verizon must handle reasonable accommodation claims, then a State law claim alleging such handicap discrimination would be inextricably intertwined with, and preempted by, the CBA. Nor is this case like Blanchette v. School Comm. of Westwood, 427 Mass. 176 (1998), which involved not preemption principles, but those of issue preclusion, waiver, and estoppel. In its brief, Verizon abandoned so much of this contention as asserted that the Superior Court lacked jurisdiction because of Butler’s failure to exhaust administrative remedies at the MCAD prior to filing suit.

CARLIE BOWLING, Plaintiff v. MARGARET R. PARDEE MEMORIAL HOSPITAL, Defendant No. COA05-1497 (Filed 17 October 2006) 1. Appeal and Error— appealability — interlocutory order— substantial right 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 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) plaintiffs 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. 2. Disabilities— North Carolina Persons with Disabilities Protection Act — Americans with Disabilities Act — Equal Employment Opportunity Commission claim commenced— concurrent jurisdiction not allowed The trial court did not err by dismissing plaintiffs claim under the North Carolina Persons with Disabilities Protection Act (NC Disabilities Act) pursuant to N.C.G.S. § 168A-ll(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) plaintiffs 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 right-to-sue letter was immaterial since the court never had jurisdiction over the case at all based on the fact that it was initially filed after plaintiff had already commenced federal administrative proceedings such that federal jurisdiction had attached. 3. Constitutional Law— Open Courts provision — federal proceeding — surrender of state court remedy — not violation An employee allegedly terminated because of his disability who elected to commence a federal proceeding with the EEOC and thus voluntarily surrendered his right to a remedy in the state court under the N.C. Persons with Disabilities Protection Act pursuant to N.C.G.S. § 168A-ll(c) while the federal proceeding was pending was not denied access to the state courts in violation of the Open Courts provision of N.C. Const, art. I, § 18. Appeal by plaintiff from judgment entered 12 July 2005 by Judge Laura J. Bridges in Superior Court, Henderson County. Heard in the Court of Appeals 21 September 2006. Law Offices of Glen C. Shults, by Glen C. Shulls, for plaintiff-appellant. Ford & Harrison, LLP, by David H. Tyner and Wade E. Ballard, for defendant-appellee. WYNN, Judge. No state court shall have jurisdiction over an action filed under the North Carolina Persons with Disabilities Protection Act (North Carolina Disabilities Act), where the plaintiff has commenced federal administrative proceedings under the Americans with Disabilities Act (ADA). Plaintiff argues that because he only commenced discrimination proceedings under the ADA with the Equal Employment Opportunity Commission (EEOC), this provision does not bar his North Carolina Disabilities Act action. Since filing a claim with the EEOC commences “federal administrative proceedings,” we affirm the dismissal of Plaintiff’s state law claim. Plaintiff Carlie Bowling, a licensed pharmacist, began working for Defendant Margaret R. Pardee Memorial Hospital in January 2004. He suffers from migraine headaches and other physical impairments arising from service-related injuries sustained in a helicopter crash in the mid-1980s. In July 2004, Pardee Hospital placed Mr. Bowling on administrative leave because of “certain episodes relating to Plaintiff’s job performance that caused concern about patients’ safety.” Mr. Bowling was subsequently examined by the hospital’s medical director and then terminated on 12 August 2004, after he refused to resign. On 26 October 2004, Mr. Bowling filed a claim with the EEOC, alleging that Pardee Hospital had discriminated against him and terminated him because of his migraine headaches, in violation of the Americans with Disabilities Act (ADA). While the EEOC matter was pending, Mr. Bowling brought an action in state court on 25 January 2005, asserting state law claims under the North Carolina Disabilities Act, wrongful discharge in violation of public policy, and negligent infliction of emotional distress. Pardee Hospital responded by moving to dismiss on 27 April 2005. The EEOC issued a right-to-sue letter to Mr. Bowling on 11 May 2005. Following a hearing on Pardee Hospital’s motion to dismiss, the trial court dismissed Mr. Bowling’s claim under the North Carolina Disabilities Act and denied Pardee Hospital’s motion to dismiss Mr. Bowling’s claims of wrongful discharge in violation of public policy and negligent infliction of emotional distress. Before we address the merits of Mr. Bowling’s appeal from that order, we note that his appeal is interlocutory, as the trial court’s judgment is not “one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court.” Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950). Mr. Bowling has two claims remaining at the trial level, but he argues that the dismissal of his North Carolina Disabilities Act claim affects a substantial right under North Carolina General Statutes §§ 1-277 and 7A-27(d), thereby giving this Court jurisdiction to consider the interlocutory appeal. A “substantial right” is one “affecting or involving a matter of substance as distinguished from matters of form: a right materially affecting those interests which a [person] is entitled to have preserved and protected by law: a material right.” Oestreicher v. American Nat’l Stores, Inc., 290 N.C. 118, 130, 225 S.E.2d 797, 805 (1976). Moreover, as previously held by this Court, “the right to avoid the possibility of two trials on the same issues is a substantial right that may support immediate appeal.” Alexander Hamilton Life Ins. Co. of Am. v. J & H Marsh & McClennan, Inc., 142 N.C. App. 699, 701, 543 S.E.2d 898, 900 (2001), disc. review denied, 357 N.C. 658, 590 S.E.2d 267 (2003); see also Green v. Duke Power Co., 305 N.C. 603, 606, 290 S.E.2d 593, 595 (1982). However, “[i]f there are no factual issues common to the claim determined and the claims remaining, ... no substantial right is affected.” Alexander Hamilton, 142 N.C. App. at 701, 543 S.E.2d at 900. Here, Mr. Bowling’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, namely, his termination by Pardee Hospital. If we refuse his appeal, two trials and possibly inconsistent verdicts could result. We therefore address the merits of Mr. Bowling’s arguments that the trial court erred in dismissing his claim under the North Carolina Disabilities Act because (I) the statute does not require dismissal of a case when an individual files a claim with the EEOC; and (II) the dismissal violated the “Open Courts” clause of the North Carolina Constitution. I. Mr. Bowling first asks us to construe N.C. Gen. Stat. § 168A-ll(c) (2005) as not requiring dismissal of a state law claim when an EEOC claim is commenced. “The cardinal principle of statutory construction is that the intent of the legislature is controlling.” State ex rel. Utils. Comm’n v. Carolina Util. Customers Ass’n, Inc., 163 N.C. App. 46, 50, 592 S.E.2d 221, 224 (internal quotations and citation omitted), disc. review denied, 358 N.C. 739, 602 S.E.2d 682 (2004). Moreover, “[t]he first consideration in determining legislative intent is the words chosen by the legislature.” O & M Indus. v. Smith Eng’g Co., 360 N.C. 263, 267, 624 S.E.2d 345, 348 (2006). If the language of a statute is “clear and unambiguous, there is no room for judicial construction and the court must give the statute its plain and definite meaning.” In re Banks, 295 N.C. 236, 239, 244 S.E.2d 386, 388 (1978). The statute should also be read as a whole. “The words and phrases of a statute must be interpreted contextually, and read in a manner which effectuates the legislative purpose.” In re Appeal of Bass Income Fund, 115 N.C. App. 703, 705, 446 S.E.2d 594, 595 (1994) (internal citations and quotations omitted). The statute at issue in this case is the North Carolina Disabilities Act, which reads in pertinent part: 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 the facts and circumstances involved in the alleged discriminatory practice under this Chapter. If such proceedings are commenced after a civil action has been commenced under this Chapter, the State court’s jurisdiction over the civil action shall end and the action shall be forthwith dismissed. N.C. Gen. Stat. § 168A-ll(c) (2005). Thus, the first part of the statute prevents this State’s courts from having jurisdiction over North Carolina Disabilities Act claims that are based on the same facts and circumstances of an action already “commenced” at either the federal administrative or judicial level; the second part then strips this State’s courts of such jurisdiction if the action is commenced at the federal level after a North Carolina Disabilities Act claim has already been initiated. Taken as a whole, then, the statute prohibits a plaintiff from commencing an action at the federal level, and then filing suit at the state level; or, alternatively, from filing suit at the state level and then commencing an action at the federal level. Using clear and concise language, the General Assembly has disallowed concurrent jurisdiction over a North Carolina Disabilities Act claim and an ADA claim that arise out of the same facts and circumstances. Under the ADA, a claimant must exhaust his administrative remedies by first filing a claim with the EEOC within 180 days of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e)(l) (2004); see also Sheaffer v. County of Chatham, 337 F. Supp. 2d 709, 723 (M.D.N.C. 2004). Following review by the EEOC, if a right-to-sue letter is issued, the plaintiff has an additional ninety days to file suit in federal court under the ADA. 42 U.S.C. § 2000e-5(f)(l) (2004). The North Carolina Disabilities Act has a similar 180-day statute of limitations from when the plaintiff becomes aware of or, with reasonable diligence, should have become aware of the alleged discriminatory practice. N.C. Gen. Stat. § 168A-12 (2005). Here, Mr. Bowling was terminated on 12 August 2004 and filed a claim with the EEOC on 26 October 2004, within the ADA’s statute of limitations. While the EEOC was investigating his claim, Mr. Bowling also filed suit in state court on 25 January 2005, within the North Carolina Disabilities Act’s statute of limitations. However, because Mr. Bowling’s claim was still being investigated at the EEOC at the time of his state court filing, it fell within the North Carolina Disabilities Act’s language of “commenced federal. . . administrative proceedings,” thereby removing it from the subject matter jurisdiction of the state court. The fact that Pardee Hospital’s motion to dismiss was not heard until 27 June 2005, after the EEOC has issued Mr. Bowling a right-to-sue letter, is immaterial; the court never had jurisdiction over the case at all because it was initially filed after Mr. Bowling had already “commenced federal . . . administrative proceedings,” such that federal jurisdiction was attached. In addition, Mr. Bowling had an additional ninety days after the right-to-sue letter to file suit in federal court. The clear meaning of the language of N.C. Gen. Stat. § 168A-ll(c) does not allow a plaintiff to file simultaneous federal and state claims, then see which one has a better chance of being successful. A plaintiff must either choose a. single forum at the outset and proceed accordingly, or ensure that one claim or the other is completely concluded within the statute of limitations so that he may move forward with the other. In light of the provisions of the ADA, the short statute of limitations prescribed for the North Carolina Disabilities Act by our General Assembly suggests its intent to allow a plaintiff a remedy at either the state or federal levels, but not both. Accordingly, we hold that N.C. Gen. Stat. § 168A-ll(c) requires dismissal of a state law claim when an EEOC claim is commenced. II. Along these lines, we find Mr. Bowling’s argument that the Open Courts clause of the. North Carolina Constitution requires that he have recourse to the state courts for his North Carolina Disability Act claim to be without merit. The Open Courts clause provides that, “All courts shall be open; every person for an injury done to him in his lands, goods, person, or reputation shall have remedy by due course of law . . .’’N.C. Const, art. I, § 18. Nevertheless, as our Supreme Court has noted in the past, “[t]he legislature has the power to define the circumstances under which a remedy is legally cognizable and those under which it is not.” Lamb v. Wedgewood South Corp., 308 N.C. 419, 444, 302 S.E.2d 868, 882 (1983). This Court has likewise held that a statute does not violate the Open Courts clause if it “does not deny litigants access to North Carolina courts, but merely postpones litigation here pending the resolution of the same matter in another sovereign court.” Lawyers Mut. Liab. Ins. Co. v. Nexsen Pruet Jacobs & Pollard, 112 N.C. App. 353, 358, 435 S.E.2d 571, 574 (1993) (internal quotations and citation omitted). In the instant case, Mr. Bowling was not denied access to nor barred from the North Carolina courts. Rather, he elected to commence federal administrative proceedings, thereby voluntarily surrendering his right to a remedy in state court, so long as those federal proceedings were pending. The North Carolina courts were open to Mr. Bowling; he chose not to avail himself of them for his North Carolina Disabilities Act claim. In conclusion, we affirm the trial court’s dismissal of Mr. Bowling’s claim under the North Carolina Disabilities Act. Affirmed. Judges McGEE and MCCULLOUGH concur. . N.C. Gen. Stat. § 168A-ll(c) (2005). . 42 U.S.C. §§ 12101 et seq. (2004).