Norman v. Beasley Mezzanine Holdings, LLC et al

Filing 38

ORDER denying 28 Motion for Summary Judgment. Signed by US District Judge Terrence W. Boyle on 11/14/2011. (Sawyer, D.)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No.5:1O-CV-511-BO

KIMBERLEY L. NORMAN,

)
)
)
v.
)
)
BEASLEY MEZZANINE HOLDINGS,
)
LLC, BEASLEY FM ACQUISITION
)

CORP., BECKY GILREATH,
)

KATHRYN LOLLIS alk/al KATY LOLLIS,)
and EDWARD MCTINDAL alklal
)
MAC EDWARDS,
)
Defendants. )
)

Plaintiff,

ORDER

This matter is before the Court on Defendants' Motion for Summary Judgment [DE 28].
Plaintiff has responded [DE 33], Defendants have replied [DE 37], and the matter is now ripe for
ruling. For the reasons discussed below, Defendants' Motion for Summary Judgment is denied.
BACKGROUND
Plaintiff was employed by Defendant Beasley, I an operator of five radio stations in
Fayetteville, North Carolina, as an account executive. Plaintiffs responsibilities included
traveling throughout a fourteen county district selling air time. Specifically, Plaintiff was
responsible for writing proposals, seeking advertising clients, soliciting business, and writing
advertisements. Plaintiff was also responsible for ensuring that clients' ad copy was properly

I Plaintiff contends that her paychecks indicate that Beasley Mezzanine Holdings LLC was
her employer. Defendants assert that Beasley FM Acquisition Corp. was Plaintiffs employer
and that Beasley Mezzanine Holdings is not a proper defendant. For the purposes of
consideration of this motion, and in viewing the facts in the light most favorable to the Plaintiff,
the Court will construe the Beasley entities together as Plaintiffs employer, referred to
hereinafter as "Beasley."

submitted so that it could air at the appropriate times. Plaintiffs salary was based on a
commission of her sales.
Plaintiff suffers from irritable bowel syndrom (IBS) that in 2009 began to worsen. In
January 2010 Plaintiff submitted documentation to her employer requesting coverage under the
Family Medical Leave Act (FMLA). Plaintiff was notified that her FMLA request was approved,
and she became eligible for up to twelve weeks of unpaid leave in a calendar year for specified
family and medical reasons. Plaintiff was never denied a request for time off under FMLA by
Defendants.
Plaintiff was terminated from her employment with Defendant Beasley on April 12, 2010.
She filed suit against Defendants in Cumberland County Civil Superior Court on October 15,
2010, alleging that Defendants violated the FMLA and that the basis for her termination was
discriminatory and retaliatory. Defendants removed the action to this Court on November 17,
2010. Defendants answered Plaintiff s complaint and her amended complaint and have now
moved for summary judgment.
DISCUSSION
A motion for summary judgment may not be granted unless there are no genuine issues of
material fact for trial and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If that burden has been
met, the non-moving party must then come forward and establish the specific material facts in
dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574,588 (1986). In determining whether a genuine issue of material fact exists for trial, a

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trial court views the evidence and the inferences in the light most favorable to the nonmoving
party. Scott v. Harris, 550 U.S. 372, 378 (2007). However, "[t]he mere existence of a scintilla
of evidence" in support of the nonmoving party's position is not sufficient to defeat a motion for
summary judgment; "there must be evidence on which the [fact finder] could reasonably find for
the [nonmoving party]." Anderson v. LibertyLobby, Inc., 477 U.S. 242, 252 (1986).
FMLA
The FMLA entitles employees to take "reasonable leave for medical reasons." 29 U.S.c.
§ 2601 (b)(2). The act allows eligible employees to take a total of twelve workweeks ofleave
during any twelve month period due to a "serious health condition that makes the employee
unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(l)(D).
If agreed to by the employee and the employer, FMLA leave may be taken intermittently or on a
reduced leave schedule. 29 U.S.c. § 26 I2(b)(l). The Act also contemplates protection from
discrimination for employees who exercise their rights under the FMLA. 29 U.S.C. § 2615(a)(2);

Hodgens v. General Dynamics Corp., 144 F.3d 151, 160 (lst Cir. 1998). Specifically,
"employers cannot use the taking of FMLA leave as a negative factor in employment actions,
such as hiring, promotions, or disciplinary actions." 20 C.F.R. § 825.220(c). The proscription of
discrimination or retaliation against an employee for exercising their rights under the FMLA is
analogous to the proscription of discrimination and retaliation found in Title VII. See Rice v.

Sunrise Express, Inc., 209 F.3d 1008, 1017 (7th Cir. 2000); Yashenko v. Harrah's N. C. Casino
Co" LLC, 446 F.3d 541,546 (4th Cir. 2006).
Because FMLA retaliation claims are analogous to Title VII claims, they are also
analyzed under the McDonnell Douglas burden-shifting framework. Yashenko, 446 F.3d at 551

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(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). The plaintiff must first make
a prima facie case of retaliation by showing that she "engaged in protected activity, that the
employer took adverse action against [her], and that the adverse action was causally connected to
the plaintiffs protected activity." Cline v. Wal-Mart Stores. Inc., 144 F.3d 294, 301 (4th Cir.
1998). If the plaintiff can make a prima facie showing, the burden shifts to the defendant to offer
a non-discriminatory explanation for the plaintiffs termination. Yashenko, 446 F.3d at 551. If
the defendant can show that the termination was non-discriminatory, the plaintiff must then
establish that the employer's explanation is merely pretext for FMLA discrimination. Id.
A. Prima Facie Showing

Plaintiff has made a prima facie showing of her FMLA retaliation claim. Plaintiff
engaged in protected activity by requesting FMLA coverage and by taking FMLA leave. See 20
C.F.R. § 825.220(c). Plaintiff suffered an adverse employment action when she was disciplined
and subsequently terminated on April 12, 2010. Plaintiff has also shown a causal connection
between her FMLA activity and her adverse employment actions. An adverse employment
action need not be solely caused by Plaintiffs engagement in protected activity, and a Plaintiff
may offer "evidence of the temporal proximity between [her] absence and the elimination of
[her] job" to make a prima facie case of causality. Yashenko, 446 F.3d at 551. Plaintiff took
FMLA leave on Friday, April 9, 2010, and was both disciplined and terminated the following
Monday; Plaintiff has made the requisite showing of causality to establish a prima facie case for
retaliation under the FMLA.
B. Non-discriminatory Explanation & Pretext
When viewing the facts in the light most favorable to Plaintiff, there remains a genuine

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issue of material fact as to whether Plaintiff was disciplined or terminated because she took
FMLA leave. Defendants have offered evidence that Plaintiffs discipline and termination were
not a result of her FMLA leave, but rather of her declining sales performance, her persistent
tardiness, and ultimately her insubordination. Plaintiffs alleged insubordination arose when,
during a meeting with her supervisors about her job performance, Plaintiff requested a tape
recorder or the presence of an attorney before proceeding further with discussions. The meeting
was adjourned, and Plaintiff was ultimately escorted from the building. Plaintiffs supervisors
then decided that Plaintiffs refusal to proceed with discussions constituted insubordination, a
ground for immediate termination.
Plaintiff contends that her request for a tape recorder or for an attorney to be present was
in compliance with the FMLA, which requires that disputes between employers and employees
over qualifying FMLA leave should be documented. 20 C.F.R. § 825.301(c). Additionally,
Plaintiff offers evidence that such an accommodation was offered, but that Plaintiffs supervisors
subsequently determined that such a request was insubordination and failed to continue the
meeting at a later time.
Defendants also argue that, in addition to meeting their burden in establishing a non­
discriminatory basis for Plaintiffs termination, Plaintiff cannot show that the reasons proffered
by Defendants are in fact merely pretextual. Plaintiff has offered sufficient evidence, however, to
call into question whether Defendants' explanation for her termination is merely pretext.
Plaintiff points to the fact that just prior to her termination she received a laudatory performance
evaluation and that she had already exceeded her monthly sales quota. Plaintiff also disputes
Defendants' contention that Plaintiffs termination was not planned, pointing to an email from a

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month prior to her termination stating that Plaintiff was a "weak link." Plaintiff has also offered
evidence that Defendants did not consider her FMLA condition to be very serious, and that
Plaintiff s supervisors appeared to doubt whether Plaintiff s frequent absences were in fact
caused by a her FMLA-covered medical condition.
Because Defendants have failed to proffer sufficient undisputed facts to show that
Plaintiff was disciplined only due to problems with job performance or terminated only because
of insubordination, summary judgment is inappropriate at this time.
CONCLUSION
Accordingly, for the reasons discussed above, Defendants' Motion for Summary
Judgment is DENIED.

SO ORDERED, this

h

day of November, 2011.

T RRENCE W. BOYLE
Ul\IITED STATES DISTRICT

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