Gibson v. Corning Inc. et al

Filing 53

ORDER denying 26 Motion for Summary Judgment, granting 34 Motion for Summary Judgment and denying as moot 37 Motion TO IMPEACH AND SUPPRESS KEITH HOWEL'S STATEMENT BASED ON FIFTH AMENDMENT VIOLATIONS, 38 Motion FOR ENTRY OF F INAL JUDGMENT, 39 Motion FOR "MULTIPLEM" JUDGMENTS / MOTION FOR SUMMARY JUDGMENT ON ALL OR PARTIAL CLAIMS, 40 Motion FOR GLOBAL SETTLEMENT REQUEST FOR COMPENSATIONAL AND PUNITIVE DAMAGES, 44 Motion for Admisabality and Brief and Notification of New Address, and 45 Motion for Sipositive Motions Judgement. Signed by District Judge Terrence W. Boyle on 4/8/2015. Copy of order mailed to plaintiff via US Mail at 944 Bonham Avenue, Apartment 2, Wilmington, NC 28403. (Marsh, K)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:14-CV-105-BO
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DARYL K. GIBSON,
Plaintiff,
V.

CORNING IN CORPORATED, et al.,
Defendants.

ORDER

This matter is before the Court on the parties' cross-motions for summary judgment. [DE
26, 34]. Also pending are plaintiffs motions to impeach and suppress [DE 37], for entry of final
judgment [DE 38], for multiple judgments [DE 39], for global settlement request [DE 40], for
admissibility [DE 44] and for dispositive motions judgment [DE 45]. All are ripe for
adjudication. For the following reasons, defendants' motion for summary judgment is
GRANTED and plaintiffs motions are DENIED.
BACKGROUND
Plaintiffs pleadings vacillate between difficult to comprehend and bordering on
nonsensical. Accordingly, the Court has balanced the summary judgment requirement that it
view the facts in the light most favorable to the nonmoving party with the fact that it is often
impossible to figure out plaintiffs version ofthe facts. As the precise nature of plaintiffs claims
is unclear, the Court summarizes the multitude of incidents that may be a basis for some or any
of plaintiffs claims to the best of its ability.
Defendant Coming Incorporated (Coming) is a company that manufactures glass and
ceramics. Though Coming is based in New York, it has a large manufacturing plant in

Wilmington, North Carolina (the Wilmington plant). Pro se plaintiff Daryl Gibson was employed
by Coming at the Wilmington plant from March 12, 2007, until his termination on January 25,
2013. Plaintiff is a 55-year-old African-American male. He was 47 years old when he was hired
and 53 years old when he was terminated. He suffers from diabetes and a heart condition, as well
as other medical conditions. While defendants knew about plaintiffs diabetes and heart
condition, it is unclear whether they were aware of his other medical conditions.
This lawsuit appears to arise out of plaintiffs termination from his employment at
Coming. Plaintiff sues not only Coming, but also a number of individuals who were employed at
the Wilmington plant at the time of his termination: Larry Sutton, a union representative, Keith
Howell, plaintiffs supervisor, Kadianne McPherson, the plant's human resources manager, Bill
Karns, plaintiffs second-level supervisor until late 2010, Jim Enos, plaintiffs supervisor until
sometime in 2009, Maria Scarsellatta, the labor relations coordinator for the Wilmington plant,
and Anna Marie Allegretto, the administrative assistant for the medical department at the
Wilmington plant.
Plaintiffs termination followed a series of events beginning with a disagreement between
plaintiff and a co-worker, Sandra Blount. The precise dates the events occurred is in dispute, but
is immaterial. It is important to note that on December 18, 2012, prior to the disagreement,
plaintiff received a "meets expectations" performance review from his supervisor, Howell.
Subsequently, plaintiff got into an argument with Blount. Blount called plaintifflazy and told
him to "go the hell on." [DE 35 at 5]. Plaintiff responded by telling Blount to "get the fuck away
from him and leave him alone." [DE 26 at 4]. Both employees were disciplined by their
superiors-plaintiff received a Level One Warning 1 for using abusive language and Blount was
informally counseled. [DE 46 at 6]. When Howell (with Sutton present as plaintiffs union
1

A "Level One Warning" is a verbal warning, Coming's lowest level of formal discipline.
2

representative) tried to administer the verbal warning in a later meeting, plaintiff became
extremely agitated and ultimately threatened to harm Blount. Plaintiff was eventually terminated
for threatening behavior effective January 25, 2013.
During the investigation of the incident with Blount, plaintiff alleged that Blount had
previously sexually harassed him by touching his head, neck, and hair while telling him he
needed a haircut, hugging him when he returned from leave, and telling him that he needed a
"good Christian woman." [DE 26 at 5-6]. Corning investigated the claims of sexual harassment
and determined that Blount's conduct did not warrant disciplinary action.
In 2011, well before the incident with Blount, plaintiff was denied two requests for
Family and Medical Leave Act (FMLA) leave. [DE 35 at 10]. Both were after-the-fact requests
for intermittent FMLA leave. Defendant Allegretto, who was responsible for the FMLA requests,
denied one as untimely, and appears to have taken no action on the other, as plaintiff never
followed her instructions to provide her with the form that covered the claimed condition. That
same year, plaintiff filed a complaint with the U.S. Department of Labor about his FMLA leave,
which was administratively closed in late 2011.
Plaintiff filed a workers' compensation claim against Corning in March 2012, and also
made a complaint to North Carolina Occupational Safety and Health Division about a "hot glass"
safety incident that occurred on December 28, 2012. The worker's compensation claim was
settled in February 2013, after plaintiff's termination. The hot glass incident resulted in an
inspection which also occurred in February 2013, after plaintiff was dismissed.
Plaintiff also has filed a number of administrative charges. He filed four charges in 2009,
two with the U.S. Equal Employment Opportunity Commission (EEOC) and two with the
National Labor Relations Board (NLRB), which were all disposed of that year. He also filed an

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EEOC charge in November 2011, which was dismissed in June 2012. Plaintiff also filed a
number of administrative charges around the time of his termination or afterward for which he
has timely filed suit. NLRB Charge No. 11-CA-097859, filed on 1/23/13, Retaliatory
Employment Discrimination Act (REDA) Complaint No. 023-13, filed on 1114/13, and EEOC
Charge No. 846-2013-14644, filed on 4113113. The NLRB charge was referred to arbitration, and
the arbitrator found in Coming's favor on October 10, 2013. The other two charges were
dismissed and notice of rights letters were issued on 2/20/14 and 11/25/13, respectively.
Plaintiff filed this suit on February 24, 2014. As mentioned above, his causes of action
are not explicitly laid out in the complaint, and it is quite difficult to discern exactly what laws he
claims defendants have violated. Construing his allegations liberally, the Court assumes that
plaintiff is bringing federal claims of racial and sexual harassment, race and sex discrimination,
and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (Title
VII), harassment, discrimination, and retaliation under the Americans with Disabilities Act, 42
U.S.C. § 12101, et seq. (ADA), age discrimination under the Age Discrimination in Employment
Act, 29 U.S.C. § 621, et seq. (ADEA), violation ofthe FMLA, 29 U.S.C. § 2601, et seq.
(FMLA), violation of Section 8 of the Labor Management Relations Act, 29 U.S.C. §§ 127-28
(LMRA), violation ofthe Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (FLSA), and
violation of the OSHA, 29 U.S.C. § 15, et seq. Plaintiff also appears to bring pendent claims
under North Carolina law for fraud, defamation, wrongful discharge in violation of public policy,
and violation of the REDA, N.C. Gen. Stat.§ 95-2540, et seq. Plaintiff seeks $65,000 in backpay, reinstatement of his job, and $70 million in punitive damages for mental and emotional
distress.

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MOTION FOR SUMMARY JUDGMENT
Both parties seek entry of summary judgment in their favor as to all claims. Summary
judgment is proper only when, viewing the facts in the light most favorable to the non-moving
party, there is no genuine issue of material fact, and the movant is entitled to judgment as a
matter oflaw. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317,322-23 (1986); Cox v.
Cnty. of Prince William, 249 F.3d 295, 299 (4th Cir. 2001). An issue is "genuine" if a reasonable
jury, based on the evidence, could find in favor ofthe non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242,248 (1986); Cox, 249 F.3d at 299. When addressing cross-motions for
summary judgment, the court must ask "whether the evidence presents a sufficient disagreement
to require submission to the jury or whether it is so one-sided that one party must prevail as a
matter of law." Anderson, 477 U.S. at 251.
In determining whether a genuine issue of material fact exists for trial, a 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). The party seeking summary judgment "bears the initial responsibility
of informing the district court of the basis for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex.
477 U.S. at 323. Once the moving party has met its burden, the non-moving party must then "set
forth specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co.
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
CLAIMS THAT ARE NOT LEGALLY VIABLE

Prior to addressing the remaining claims on their merits, the Court will address some
plaintiffs potential claims that, for various reasons, are not legally viable.

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Statute of Limitations
A number of plaintiffs claims are barred by the applicable statutes of limitations. This action
was filed on February 24, 2014. Any claims related to events that transpired in 2009 are time
barred, whether under Title VII, where the statute of limitations is 90 days from the issuance of
the notice of rights letter, 42 U.S.C. § 1981, which has a four year statute of limitations, or state
common-law fraud, N.C. Gen. Stat. § 1-52(9) or wrongful discharge,§ 1-54(3), which have a
three year statute of limitations. Accordingly, any claims relating to events that transpired in
2009 must be dismissed. As plaintiffs allegations against defendants Karns and Eos arise solely
from events that concluded in 2009, those defendants must also be dismissed from this action.
Accordingly, defendants' motion for summary judgment is granted on any claims relating to
events that transpired in 2009 and on any claims against defendants Karns and Eos.
Plaintiffs defamation claims are barred by the applicable one-year statute of limitations.
N.C. Gen. Stat.§ 1-54(3). This action was filed more on February 24, 2014, more than one year
after plaintiffs employment was terminated. Construing the facts in the light most favorable to
plaintiff, any defamatory statements were made while he was still employed by Coming.
Accordingly, plaintiffs defamation claim must be dismissed and defendants' summary judgment
motion on that claim is granted.
Title VII, ADEA, ADA, and Wrongful Discharge Claims against Individuals
Plaintiff is barred from asserting claims against individual defendants under Title VII, the
ADEA, the ADA, and North Carolina's wrongful discharge statute. An individual is not an
employer within the meaning of the ADEA. Birkbeck v. Marvel Lighting Corp., 30 F.3d 507,
510-11 (4th Cir.) cert. denied, 513 U.S. 1058 (1994). Nor is an individual an employer within
the meaning of Title VII. Lissau v. S. Food Serv., Inc., 159 F .3d 177, 180 (4th Cir. 1998). In

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deciding Lissau, the Fourth Circuit reasoned in part that the "sliding scale of liability [used to
calculate damages in Title VII cases] does not stipulate an amount in cases where a plaintiff
seeks to hold an individual supervisor liable." !d. at 181. The remedial scheme in Title VII as
discussed by Lissau is identical to the remedial scheme in the ADA. Accordingly, as the Fourth
Circuit has explained, it stands to reason that no individual liability for supervisors exists under
the ADA either. Baird ex rel. Bairdv. Rose, 192 F.3d 462,472 (4th Cir. 1999).
Likewise, a claim for wrongful discharge under North Carolina law cannot be brought
against an individual-a plaintiff may only bring suit against his employer for wrongful
discharge. Iglesias v. Wolford, 539 F.Supp.2d 831, 839 (E.D.N.C. 2008); Garner v. Rentenbach

Constructors, Inc., 515 S.E.2d 438,441 (N.C. 1999); Sides v. Duke University, 328 S.E. 2d 818,
827 (N.C. Ct. App. 1985), overruled on other grounds by Kurtzman v. Applied Analytical Indus.,

Inc., 493 S.E.2d 20 (N.C. 1997). Accordingly, defendant's motion for summary judgment on
plaintiffs Title VII, ADEA, ADA and North Carolina wrongful discharge claims as to the
individual defendants is granted.
OSHA and FLSA Claims
Plaintiff cannot bring any claim for violation of the OSHA because no private right of
action exists under that statute. Scarborough v. Aegis Commc 'ns. Group, Inc., 217 F .3d 840,
2000 WL 790965 (4th Cir. 2000) (unpublished) (per curiam) citing Elliott v. S.D. Warren Co.,
413 F.3d 1, 4 (1st Cir. 1998); Williams v. Mead Westvaco Corp., No. 7:07-CV-171, 2007 WL
2327586 (W.D.Va. Aug. 10, 2007). Defendant's motion for summary judgment on any OSHA
claim, therefore, is granted.
The FLSA establishes overtime pay, minimum wage requirements, and the forty-hour
work week. 29 U.S.C. § 201 et. seq. Plaintiffhas made no allegations that he was underpaid,

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improperly paid, or that his employer violated the FLSA's hourly limits. Accordingly,
defendants' motion for summary judgment is granted as to any FLSA claim.
LMRA Claims
Plaintiff generally alleges that defendants discriminated and retaliated against him
because he filed complaints with the National Labor Relations Board (NLRB) and his Union. He
further alleges that his employment was terminated for filing NLRB complaints and that he is
"currently unemployed due to [defendants] blackballing my employment." [DE 4].
Section 7 of the LMRA provides employees with the "right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection .... " 29 U.S.C. § 157. Section 8 of the LMRA prohibits
employers from interfering with, restraining, or coercing employees in the exercise of their
Section 7 rights, from discriminating "in regard to hire or tenure of employment or term or
condition of employment to encourage or discourage membership in any labor organization" and
from "discharg[ing] or otherwise discriminat[ing] against an employee because he has filed
charges or given testimony under this subchapter." 29 U.S.C. § 158(a)(1), (3), and (4). An
employer is also prohibited from retaliating against an employee because the employee
complained to his union or filed a grievance. Diversified Indus., 208 NLRB 233 (1974).
In 1959, the Supreme Court articulated what has become known as the Garmon doctrine,
noting that "[w]hen an activity is arguably subject to§ 7 or§ 8 of the Act, the States as well as
the federal courts must defer to the exclusive competence of the National Labor Relations Board
if the danger of state interference with national policy is to be averted." San Diego Bldg. Trades
Council, Millmen 's Union, Local 2020 v. Garmon, 359 U.S. 236, 244 (1969). Accordingly, to the

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extent that plaintiffs claims are alleged violations of the LMRA, those claims are preempted.
The proper forum for those complaints is the NLRB and this Court lacks jurisdiction over them.
Therefore, summary judgment for defendants on any LMRA claim is warranted.
LEGALLY VIABLE CLAIMS
Plaintiffs remaining claims, though legally viable, all are subject to summary judgment
in defendants' favor.
Title VII, ADEA, ADA Termination Claims
As discussed supra, any claims under Title VII, the ADA, and the ADEA are viable only
against Coming. The substance of plaintiffs complaint appears to be devoted to allegations that
he was discriminated against on the basis of his race, sex, age, and disability, and unlawfully
retaliated against following the disagreement with Blount and the subsequent investigation.
Title VII makes it unlawful for an employer to "discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such
individual's race ... or national origin." 42 U.S.C. §§ 2000e-2(a). The ADA and ADEA
likewise make it unlawful for employers to discriminate against individuals based on their race
and age. 42 U.S.C. § 12101 et seq.; 29 U.S.C. § 621 et seq .. In such cases, there are two avenues
through which a plaintiff may avoid summary judgment. First, a plaintiff may survive a summary
judgment motion by presenting direct or circumstantial evidence that discrimination motivated
the employer's adverse employment decision. See Hill v. Lockheed Martin Logistics Mgmt., Inc.,
354 F.3d 277,284 (4th Cir. 2004). "The second method of averting summary judgment is to
proceed under a 'pretext' framework, under which the employee, after establishing a prima face
case of discrimination, demonstrates that the employer's proffered permissible reason for taking
an adverse employment action is actually a pretext for discrimination." !d. at 285; see also Ennis

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v. Nat'l Ass 'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995). Plaintiff has not
presented direct evidence that any type of discrimination motivated Corning's adverse
employment decisions, thus the Court addresses plaintiffs claims under the pretext framework.
Rather than addressing each claim individually, the Court will assume without deciding that
plaintiff has made out a prima facie case of discrimination for each claim. Once that occurs, "the
burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse
employment action." Hill, 354 F.3d at 285. Corning has met its burden by producing affidavits,
signed under penalty of perjury, demonstrating that plaintiff was fired because he had
communicated threats toward Blount. Communication of threats is a legitimate reason for
discharge, as is a good-faith belief that threats have been made. See, e.g., Holland v. Washington
Homes, Inc., 487 F.3d 208,214-15 (4th Cir. 2008) (affirming summary judgment on Title VII
discrimination and retaliation claims where plaintiff was fired for threatening his supervisor).
In response to evidence that demonstrates Corning had a legitimate reason for terminating
plaintiff, plaintiff has not put forth any evidence demonstrating that Corning's rationale was
mere pretext for discrimination of any type. Aside from his denials of the threats (which the
Court accepts as true), nothing in the record supports an inference that Corning did not believe
plaintiff had threatened Blount when it made the decision to fire him. Accordingly, plaintiff
cannot meet his burden "to prove, by a preponderance of the evidence, that the legitimate reasons
offered by[] defendant were not its true reasons, but were a pretext for discrimination." Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). Therefore, summary judgment
for Corning on plaintiffs Title VII, ADA, and ADEA discrimination claims is appropriate.

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Title VII Sexual Harassment Claim
Plaintiff also appears to allege that Coming failed to properly investigate or address his
claim of sexual harassment by Blount. The Court will assume that plaintiff intended to argue that
Coming failed to properly investigate because a male victim was complaining about a female
perpetrator and address this as an unlawful sex discrimination claim under Title VII. It is
axiomatic that "Title VII does not provide a remedy for every instance of verbal or physical
harassment in the workplace." Lissau v. S. Food Serv, Inc., 159 F.3d 177, 183 (4th Cir. 1998).
"Relief is unavailable where the alleged conduct is not severe or pervasive enough to create an
objectively hostile or abusive work environment or where the victim does not subjectively
perceive the environment to be abusive." !d. (internal quotations and citation omitted). To
determine whether this standard is satisfied, courts consider, among other things, the frequency
of the conduct, its severity, whether it is physically threatening or humiliating, whether the
conduct interfered with work performance, and what psychological harm resulted. Harris v.
Forklift Systems, Inc., 510 U.S. 17,23 (1993).
Plaintiff claims that Blount sexually harassed him by touching his head, neck, and hair
while telling him he needed a haircut, hugging him when he returned from leave, and telling him
that he needed a "good Christian woman." Taking plaintiffs accusations against Blount as true,
Blount's conduct simply did not rise to the level of"severe or pervasive enough to create an
objectively hostile or abusive work environment." Lissau, 159 F .3d at 183. Plaintiff does not
state the frequency of the conduct, whether the conduct interfered with work performance, or
what psychological harm resulted. Objectively, Blount's conduct cannot be considered either
physically threatening or humiliating. Even if plaintiff subjectively perceived her actions as
abusive, the conduct was not severe or pervasive enough to create an objectively hostile work

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environment, thus his claims are insufficient to make out a prima facie case of sexual
harassment. Summary judgment for Corning on plaintiffs unlawful sex discrimination claim is
warranted.
FMLA Claims
Plaintiff alleges that Corning and the remaining individual defendants violated his rights
under the FMLA. The FMLA provides employees with two types of protections: substantive
entitlements and proscriptive protections. Yashenko v. Harrah's NC Casino Co., LLC, 446 F.3d
541, 546 (4th Cir. 2006). Violations ofthe substantive entitlements are known as interference
claims, while violations of the proscriptive protections are known as retaliation claims. /d.
plaintiff appears to have raised both types of claims.
A. Interference

Plaintiff alleges that he was wrongfully denied leave under the FMLA. There were only
two instances in which plaintiff was both provisionally and finally denied FMLA leave, both of
which were in 2011. Though plaintiff does not clearly state against whom he brings this claim,
the Court assumes that he raises this claim only against Corning and Allegretto, as they are the
only two defendants involved with plaintiffs FMLA requests. This allegation constitutes an
interference claim, which arises when an employer "interefere[s] with, restrain[ s] or den[ies] the
exercise of or the attempt to exercise, any right provided" by the FMLA. 29 U.S.C. § 2615(a)(1).
To establish unlawful interference with an entitlement to FMLA benefits, an
employee must prove that: (1) [he] was an eligible employee; (2) [his] employer
was covered by the statute; (3) [he] was entitled to leave under the FMLA; (4)
[he] gave [his] employer adequate notice of [his] intention to take leave; and (5)
the employer denied [him] FMLA benefits to which [he] was entitled.
Downs v. Winchester Medical Center, 21 F.Supp.3d 615, 617 (W.D.Va. 2014) (citation

omitted). At the time plaintiff was denied leave, FMLA regulations required an employee who

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needed unforeseeable leave to provide notice "as soon as practical under the facts and
circumstances of the particular case." 29 C.F.R. § 303(a), 73 Fed. Reg. 68099. An employer was
entitled to require the employee to comply with its "usual and customary notice requirements
applicable to such leave." !d. The regulations provided that FMLA leave could be denied if the
employee failed to comply with the notice and procedural requirements. 29 C.F.R. § 303(c), 73
Fed. Reg. 68100.
Assuming that plaintiff was an eligible employee entitled to FMLA leave and Coming
was covered by statute, plaintiff cannot demonstrate that he gave adequate notice. In both cases
where plaintiffs FMLA leave was denied, it appears that he did not comply with Coming's
notification or certification requirements. Both requests were submitted after the fact, and when
Allegretto requested further documentation, plaintiff never provided it. Plaintiff has not disputed
this. Accordingly, plaintiff has pled no facts that demonstrate that he gave his employer adequate
notice or that he was denied benefits to which he was entitled. Therefore, defendants are entitled
to summary judgment on plaintiffs FMLA interference claim.

B. Retaliation
It also appears that plaintiff alleges he was terminated for asserting his FMLA rights.

Again, it is unclear against whom plaintiff brings this claim, but the only available defendants
are Coming and the individuals who played a role in the termination decision: Howell,
McPherson, Scarselletta, and Sutton. A retaliation claim arises when an adverse action is taken
against an employee for exercising his substantive FMLA rights. 29 U.S.C. § 2615(a)(2);

Yashenko, 446 F.3d at 546.The Fourth Circuit analyzes a claim that an employer discharged an
employee for taking FMLA leave as a retaliation claim under the McDonnell Douglas burdenshifting framework. !d. at 550-551. Accordingly, plaintiff must establish a prima facie case of

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retaliation by showing that (1) "he engaged in protected activity," (2) "the employer took adverse
action against him," and (3) "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). Close
temporal proximity between the adverse employment decision and protected activity can
establish a prima facie case of causality. Williams v. Cerebonics, Inc., 871 F.2d 452, 457 (4th
Cir. 1989).
Here, the FMLA leave requests at issue were denied in 2011. Plaintiff was terminated for
events that began in December 2012 and ended in January 2013. The 2011 leave requests and
2013 termination are too remote in time to establish a prima facie case. Even taking the facts in
the light most favorable to plaintiff, he has demonstrated no causal connection between his
FMLA leave and complaint and his termination. Moreover, even if he were able to establish a
prima facie case, Corning has articulated a legitimate reason for his termination: threatening Ms.
Blount, in response to which plaintiff has offered no evidence that the reason was pretextual.
Accordingly, summary judgment for Corning and the individual defendants is appropriate on any
FMLA termination claim.
North Carolina REDA Claim
Unlike the federal anti-discrimination laws, REDA provides for individual and employer
liability. Accordingly, plaintiffs claims under REDA for OSHA or workers' compensation
retaliation apply to Corning, as well as the individual defendants Howell, McPherson,
Scarselletta, and Sutton, as they were involved in the events surrounding plaintiffs termination.
REDA provides that
No person shall discriminate or take any retaliatory action against an employee
because the employee in good faith does or threatens to (1) File a claim or
complaint, initiate any inquiry, investigation, inspection, proceeding or other

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action, or testify or provide information to any person with respect to [a workers'
compensation claim or an OSHA complaint.
N.C. Gen. Stat. § 95-24l(l)(a) (workers' compensation) and (b) (OSHA complaints). Both
plaintiffs workers' compensation claim and his "hot glass" complaint to OSHA fall within the
scope ofREDA. To state a claim under REDA, a plaintiff must show that (1) he exercised his
right to engage in a protected activity; (2) he suffered an adverse employment action, and (3) a
causal connection exists between the exercise of the protected activity and the alleged retaliatory
action. Wiley v. United Parcel Serv., Inc., 594 S.E.2d 809, 811 (N.C. Ct. App. 2004). If a
plaintiff presents a prima facie case, the burden shifts to defendant to demonstrate, by a
preponderance of the evidence that it "would have taken the same unfavorable action in the
absence ofthe protected activity ofthe employee. N.C. Gen. Stat. § 95-241(b). "Although
evidence of retaliation ... may often be completely circumstantial, the causal nexus between
protected activity and retaliatory discharge must be something more than speculation." Swain v.

Eljland, 550 S.E.2d 530, 534 (N.C. Ct. App. 2001). A plaintiff may, however, "present evidence
of close temporal proximity between the protected activity and the adverse employment action"
to satisfy the element of causal connection. Smith v. Computer Task Group, Inc., 568 F.Supp.2d
603, 615 (M.D.N.C. 2008).
Plaintiff has presented absolutely no evidence of a causal connection between either the
workers' compensation claim or OSHA claim and his discharge. His complaint consists entirely
and solely of speculation. Accordingly, the Court finds that plaintiff has not made out a prima
facie case as to the workers' compensation claim. In an abundance of caution, the Court will

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assume that the close temporal proximity between the OSHA complaint filed on December 28,
2012, and his termination on January 25, 2013, could satisfy the burden.

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Assuming plaintiff made out a prima facie case for violation of REDA based on his
OSHA complaint, the statute provides an affirmative defense if the employer can show "by the
greater weight of the evidence that it would have taken the same unfavorable action in the
absence of the protected activity of the employee." N.C. Gen. Stat. § 95-241. As discussed

supra, Coming has articulated a legitimate reason for terminating Gibson for cause: threatening
to harm Blount. By virtue of the affidavits signed under penalty of perjury, Coming and the
individual defendants have demonstrated that they are entitled to the affirmative defense as a
matter of law under N.C.Gen.Stat § 95-241(b). It is clear, therefore, that summary judgment in
favor of defendants on any REDA claims is appropriate.
Wrongful Discharge Claim
Plaintiff also alleges a claim for wrongful discharge pursuant to North Carolina public
policy as stated in the North Carolina Equal Employment Practices Act (EEPA), N.C. Gen. Stat.
§ 143--422.1, et seq .. The public policy exception to the North Carolina's "employment-at-will
doctrine is a 'narrow exception."' Roberts v. First-Citizens Bank & Trust Co., 478 S.E. 2d 809,
814 (N.C. Ct. App. 1997) (citation omitted). It is only applicable where "the public policy of
North Carolina is clearly expressed within [the] general statutes or state constitution, or (2)
potential harm to the public is created by defendant's unlawful actions." McDonnell v. Guilford

County Tradewind Airlines, Inc., 670 S.E.2d 302, 306 (N.C. Ct. App.) disc. rev. denied, 675
S.E.2d 657 (N.C. 2009). To date, FMLA violations have not been held to be within the scope of
the public policy exception. See, e.g, Schuler v. Branch Banking & Trust Co., No. 1:08-CV-378,
2

The Court does not make the same assumption regarding the worker's compensation claim
because that claim was filed ten months before Gibson's discharge.
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2009 WL 3261665, at *5 (W.D.N.C. Oct. 8, 2009) (declining "to extend the North Carolina
public policy exception to the at-will employment rule to include claims based on alleged
violations of the FMLA" absent "guidance from the North Carolina courts or legislature.").
Accordingly, any wrongful discharge claim would have to be based on the alleged
violations of Title VII, the ADA, the ADEA, or the RED A. Because summary judgment has
been granted in favor of defendants on each of these claims, plaintiffs claim for wrongful
discharge under North Carolina law fails as well. See Hughes v. Bedsole, 48 F.3d 1376, 1383
(4th Cir. 1995) (stating that the North Carolina Supreme Court "explicitly adopted the Title VII
evidentiary standards in evaluating a state claim under" the EEPA); Morris v. Bel/south

Telecomm., Inc., 302 F. Supp.2d 515, 524 (M.D.N.C. 2004) (dismissing plaintiffs EEPA claims
on same grounds as her Title VII and ADA claims); Whitings v. Wolfson Casing Corp, 618 S.E.
2d 750, 753 (N.C. Ct. App. 2005) (stating that a REDA action is a supplemental remedy to the
common law tort of wrongful discharge). Moreover, as North Carolina law does not create a
private right of action for retaliation, plaintiff cannot assert that he was wrongfully terminated in
retaliation for complaining about an EEPA-protected category. McLean v. Patten Communities,

Inc., 332 F.3d 714, 719 (4th Cir. 2003); Mullis v. Mechs. & Farmers Bank, 994 F.Supp. 680,688
(M.D.N.C. 1997). Accordingly, summary judgment for defendants is appropriate on plaintiffs
wrongful discharge claims.
Fraud
Plaintiff also appears to allege common law fraud against all remaining defendants. The
elements of a fraud claim are (1) false representation or concealment of a material fact; (2) that is
reasonably calculated to deceive; (3) that is made with the intent to deceive; (4) that does in fact
deceive; and (5) results in damage to the injured party. See, e.g, Becker v. Graber Builders, Inc.,

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561 S.E.2d 905, 910 (N.C. Ct. App. 2002). Plaintiff's reliance on the misrepresentation must be
reasonable. See, e.g., RD & J Properties v. Lauralea-Dilton Enterprises, LLC, 600 S.E.2d 492,
498-99 (N.C. Ct. App. 2004). Summary judgment for the defendant is appropriate if a plaintiff
fails to satisfy his burden on any one element of a fraud claim. !d.
Even if any or all of the defendants intentionally concealed or falsely represented
material facts, it is completely unclear how plaintiff was deceived by or relied on any of the
alleged misrepresentations such that he was injured. While he was ultimately terminated, no facts
have been proffered that would demonstrate that his termination resulted from his reliance on
intentional misrepresentations or concealment on the part of any of the named defendants.
Accordingly, defendants are entitled to summary judgment as to this claim.
PLAINTIFF'S MOTIONS
As the Court has granted defendant's Summary Judgment Motion as to all claims,
plaintiff's motions are denied as moot.
CONCLUSION
For the foregoing reasons, defendant's Motion for Summary Judgment [DE 34] is
GRANTED. Plaintiff's Motion for Summary Judgment [DE 26] and all remaining motions [DE
37, 38, 39, 40, 44, 45] are DENIED AS MOOT. The Clerk is DIRECTED to enter judgment
accordingly and to close the file.

SO ORDERED, this %day of April, 2015.

T RRENCE W. BOYLE
UNITED STATES DISTRICT JUD

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