LaSasso v. FedEx Express et al

Filing 52

ORDER granting in part and denying in part 39 Motion for Summary Judgment. Summary judgment is appropriate in favor of FedEx on plaintiff's FLSA, NCWHA, and REDA claims. Genuine issues of material fact preclude entry of summary judgment on plaintiff's ADA/ADAA claims. Signed by US District Judge Terrence W. Boyle on 4/6/2017. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:15-CV-166-BO

REX LASASSO
Plaintiff,

v.
FEDEX EXPRESS a/k/a FEDERAL
EXPRESS CORPORATION,
Defendant.

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ORDER

This matter is before the Court on defendant's motion for summary judgment in its favor
on all claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has
responded, defendant has replied, and the matter is ripe for ruling. A hearing was also held on
the motion before the undersigned on February 2, 2017, at Raleigh, North Carolina. For the
reasons that follow, defendant's motion is granted in part and denied in part.
BACKGROUND
Plaintiff filed this action in Wake County Superior Court alleging claims arising under
the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, and the ADA Amendments Act
(ADAAA), Pub. L. No. 110-325; the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201; the
North Carolina Wage and Hour Act (NCWHA), N.C. Gen. Stat. § 95-25.1; as well as a common
law claim for wrongful discharge in violation of North Carolina public policy. Following
defendant's removal of the action to this Court, plaintiff filed with leave of Court and consent of
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defendant an amended complaint adding an additional claim for unpaid wages under the FLSA
andNCWHA.

Plaintiff was a long-time employee at defendant (FedEx), having begun his employment
in October 1991 and working until his termination on April 28, 2014. When his employment
was terminated, plaintiff was a Senior Aviation Line Maintenance Technician at FedEx's ramp
facility at Raleigh-Durham International Airport. LaSasso Dep. at 18-19. Prior to his
termination in 2014, plaintiffs yearly performance reviews reflected that FedEx was consistently
satisfied with plaintiffs performance, save for the 2010 review. Langford Dep. at 136 -148.
Plaintiff has had Type II diabetes since about 1994 and in 2014 continued to be affected by the
disease. LaSasso Dep. at 38; Ryala Dep. at 14. Plaintiffs diabetes causes him to experience
hypoglycemic events when his blood sugars are too low, the symptoms of which include
irritability, shakiness, and dizziness. LaSasso Dep. at 37-8; Ryala Dep. at 28. To manage his
diabetes, plaintiff takes medication and eats at regular intervals. LaSasso Dep. at 40; 188.
Plaintiff informed his FedEx supervisors, his manager Joseph Fagan and his human resources
advisor Peggy Langford, of his diabetes in the years preceding his termination. Id. at 43.
In early 2014, plaintiff was informed by a co-worker, Daniel Lester, that Fagan had
retroactively reduced the overtime hours that Fagan and plaintiff had worked on their timecards.
Plaintiff noticed that, for example, if he had worked four hours of overtime, his timecard
reflected that he a worked an amount less than four hours. LaSasso Dep. at 89; Lester Dep. at
23. Plaintiff confronted Fagan about this practice, referred to as "chopping," noting that
fractional reductions would add up to a lot of money over time. LaSasso Dep. at 119; Fagan
Dep. at 133. Plaintiff recalls that Fagan told him he would be fired for challenging him on the
overtime reporting. LaSasso Dep. at 119. Plaintiff made an anonymous complaint with FedEx's
Alert Line regarding Pagan's overtime chopping. FedEx investigated plaintiffs complaint and
discovered that Fagan was manually changing timecards and not following FedEx policy. [DE

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45-35]; Castro Dep. at 90. Fagan received a warning letter, and later admitted that he had been
under pressure to reduce overtime hours at the RDU facility. Fagan Dep. 28; 130.
Plaintiff contends that following his complaints about Pagan's overtime reductions,
Pagan's attitude toward plaintiff changed, becoming hostile and negative. For example, Fagan
referred to plaintiff in an email as "absolutely an idiot," Fagan Dep. at 92, and engaged in an
email conversation which included plaintiff's co-workers in which Fagan was disrespectful to
plaintiff. See Langford Dep. 180. The human resources manager, Peggy Langford,
recommended that Fagan be counseled for this behavior as well as a determination that Fagan
had treated plaintiff and Lestbr differently after both had engaged in similar conduct. Id; [DE
45-26].
While plaintiff was employed by FedEx, FedEx used an incremental employee discipline
system which was designed to notify employees of performance issues and give them an
opportunity to improve. Documented counseling in the Online Documented
Compliment/Counseling System (OLCC), as a first step, was not considered discipline. A
performance reminder, usually accompanied by an action plan to correct a deficiency, was the
first official step in the discipline system. If an employee received a second performance
reminder within a twelve month period, the employee's manager may determine to couple that
second performance reminder with a decision day. Generally warranted when an employee fails
to improve performance after the first reminder, a decision day is a day of paid leave during
which the employee may decide whether he wants to remain employed with FedEx. See Watson
Dep. at 10-16; Langford Dep. at 24-27. Warning letters could be issued by a manager to address
conduct concerns. Watson Dep. at 24. FedEx policy provided that receipt by an employee of
either three performance reminders, three unsatisfactory performance reviews, or a combination

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of three performance reminders and conduct letters within a twelve month period would be
grounds for termination. Watson Dep. at 17.
Beginning in February 2014 and continuing to plaintiffs termination that April, plaintiff
began receiving increasingly severe discipline from Fagan, culminating in two simultaneous but
separate performance reminders issued on April 7, 2014. 1 Also on April 7, 2014, at
approximately 4:00 p.m., human resources manager Langford met with plaintiff regarding his
anonymous Alert Line complaint regarding Pagan's overtime adjustments as well as other
complaints. Langford Deel. at 58-60. Following their meeting, Langford advised plaintiff that
Fagan wished to speak with him. Fagan and plaintiff met at approximately 5 :30 p.m., during
which time Fagan issued the first performance reminder to plaintiff based on vehicle accidents.
Plaintiff did not agree with the basis for the performance reminder but signed the paperwork
indicating that he had received it. Fagan then delivered the second performance reminder,
reading the document aloud and describing the decision day portion of the discipline. Plaintiff
felt ambushed by the second performance reminder. Plaintiff had not eaten since approximately
12:30 p.m. and began to feel nauseated, hot, and lightheaded. As Fagan was describing the
decision day process, plaintiff pushed back his chair and shouted "I can't take this anymore. I
have diabetes." Plaintiff informed Fagan that Fagan stressed plaintiff out and was causing
plaintiffs medical issues. Plaintiff told Fagan that he would report him to the Federal Aviation
The first performance reminder related to the three documented counseling sessions which had
taken place in February and early March and involved paperwork errors, plaintiffs unauthorized
work after inclement weather, as well as plaintiffs incorrect installation of a flap actuator on an
aircraft, for which plaintiff had not received documented counseling. The second performance
reminder related to two vehicle accidents in which plaintiff was the driver. The first accident
occurred on February 10, 2014, when plaintiff backed a tug into a lift truck and damaged the lift
truck's front bumper. LaSasso Dep. 148; Fagan Deel. ii 11. The second accident occurred on
March 3, 2014, when plaintiff hit a freight loader while driving a de-icing truck in hazardous
conditions and without an audio communications system. LaSasso Dep. at 126; Fagan Deel. ii
11.
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Administration (FAA) and Occupational Safety and Health Administration (OSHA). Plaintiff
then slammed his portfolio on the desk and walked out of the conference room. LaSasso Dep. at
133-34; Fagan Dep. at 72; [DE 45-30]. In Pagan's documentation of the meeting, he recalled
that plaintiff was screaming, struck his hand down on the table multiple times, and leaned over·
aggressively at Fagan stating "bring it on" and "I am gonna get you!". [DE 45-30].
Once plaintiff left the conference room he proceeded down the hall to the office of Tom
Maxwell, a senior manager. When plaintiff entered Maxwell's office Maxwell was on the
phone; Maxwell, plaintiff, Langford, and Fagan were subsequently in the hall outside of
Maxwell's office where plaintiff told Maxwell he thought Fagan and Langford were out to get
him. An alarm on plaintiffs cell phone then went off, reminding plaintiff that he needed to eat.
Plaintiff showed the alarm to Langford and Fagan. Fagan took plaintiffs identification card,
suspended plaintiff with pay, and asked plaintiff to leave the facility. Plaintiff was escorted to
his locker where he retrieved some personal belongings and left the building; shortly after
leaving plaintiff returned to his desk to get his lunch, part of which he consumed in his car to
allow him to be clear-headed enough to drive. LaSasso Dep. at 136, 145-46; Langston Dep. at
86; 96; Fagan Dep. at 73-4.
On April 10, 2014, a workplace violence report was completed regarding the April 7
events. Castro Deel.~ 6. Plaintiffs supervisors Fagan and Castro along with representatives
from human resources then reviewed the April 7, 2014, incident and discussed plaintiffs future
employment at FedEx. On Pagan's recommendation, plaintiffs employment was terminated.
Langford Dep. at 123.

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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 oflaw. 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 Gorp. 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
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. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). "A dispute is
genuine if a reasonable jury could return a verdict for the nonmoving party .... and [a] fact is
material if it might affect the outcome of the suit under the governing law." Libertarian Party of

Virginia v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (internal quotations and citations omitted).
Speculative or conclusory allegations, however, will not suffice. Thompson v. Potomac Elec.

Power Co., 312 F.3d 645, 649 (4th Cir. 2002).
At the outset, the Court notes that plaintiff does not contest the entry of summary
judgment in defendant's favor on plaintiffs FLSA and NCWHA claims. Accordingly,
defendant's motion as to those claims is GRANTED. Plaintiff does contest entry of summary
judgment on his ADA/ADAAA claim and wrongful discharge in violation of North Carolina
public policy claim.

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I.

ADA/AD AAA
Plaintiff advances two theories of relief under the AD A and its amendments: wrongful

discharge and failure to accommodate. Because plaintiff has not come forward with direct
evidence of discrimination, he proceeds under the burden shifting analysis of McDonnell

Douglas v. Green, 411 U.S. 792 (1973). This requires plaintiff to first establish aprimafacie
case, after which the burden shifts to FedEx to proffer a legitimate, non-discriminatory basis for
the adverse employment action. If FedEx does so, the burden shifts back to plaintiff to establish
that FedEx's proffered basis is mere pretext for discrimination. Id at 802.
A plaintiff makes a prima facie showing of wrongful discharge in violation of the ADA
by establishing that "(1) he is within the ADA's protected class; (2) he was discharged; (3) at the
time of discharge, he was performing his job at a level that met his employer's legitimate
expectations; and (4) his discharge occurred under circumstances that raise a reasonable
inference of unlawful discrimination." Haulbrook v. Michelin North America, 252 F.3d 696, 702
(4th Cir. 2001). FedEx does not dispute that plaintiff was within the ADA's protected class or
that he was discharged. A genuine issue of material fact exists as to whether plaintiff was
performing his job at a level which met his employer's legitimate expectations and whether his
discharge occurred under circumstances which give rise to a reasonable inference of unlawful
discrimination.
First, plaintiff has proffered evidence that his supervisors, specifically Fagan, were aware
that plaintiff had diabetes and that in the years preceding 2014 he had received positive
performance reviews and had an overall positive record of performance. Specifically, on a seven
point scale plaintiff had received ratings of seven in 2011, 2012, and 6.6 in 2013. Langford Dep.

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at 136. It was only after plaintiff reported Fagan for chopping overtime on employees' timecards
that plaintiff began to receive serial documented counseling sessions. 2
Second, plaintiff has proffered sufficient evidence from which a reasonable jury could
conclude that he was fired because of his diabetes and hypoglycemic episode. Plaintiffs
evidence supports that Langford was aware of how someone experiencing a hypoglycemic
episode might appear and Fagan has admitted that plaintiff was acting out of character on April
7, 2014. Langford Dep. at 51; Fagan Dep. at 82. Further, plaintiff has proffered evidence that an
alarm reminding him to eat in order to keep his blood sugars up went off during this interaction
and he showed the alarm to Langford and Fagan. Although plaintiff told Fagan and Langford
that he could not take the stress and referenced his diabetes, plaintiff was escorted to his locker
and asked to leave the building.
The foregoing further supports a reasonable conclusion that FedEx's proffered legitimate
bases for terminating plaintiff, performance issues and the receipt of three performance and/or
discipline warnings within twelve months, is mere pretext. Langford and Pagan's notes
regarding the April 7 incident are inconsistent in terms of the severity and degree of plaintiffs
outburst, and although a workplace violence report was completed Langford testified that she
never felt threatened by plaintiff. Langford Dep. at 76. Accordingly, plaintiffs wrongful
termination claim under the ADA and ADAAA may proceed.
A claim for failure to accommodate requires a plaintiff to show (1) that he is an
individual with a disability within the meaning of the ADA, (2) that the employer had notice of
the disability, (3) that with reasonable accommodation the employee could perform the essential

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Although the Alert Line was purportedly anonymous, plaintiff has proffered evidence that
plaintiffs co-workers knew that it was plaintiff who had reported Pagan's activities, and it would
not be unreasonable to conclude that Fagan was aware as well. [DE 45-29].
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functions of the position, and (4) that the employer refused to make such an accommodation.

Rhoads v. FD.IC., 257 F.3d 373, 387 n.11 (4th Cir. 2001).
FedEx argues first that plaintiffs failure to accommodate claim is beyond the scope of
his EEOC charge and that the Court may not consider this claim. See Evans v. Techs.

Application & Svc. Co., 80 F.3d 954, 963 (4th Cir. 1996) ("Only those discrimination claims
stated in the initial charge, those reasonably related to the original complaint, and those
developed by reasonable investigation of the original complaint may be maintained in a
subsequent .. ·. lawsuit." Claims which have not been exhausted fall outside of the scope of the
EEOC charge and are procedurally barred. Chacko v. Patuxent Inst., 429 F.3d 505, 509 (4th Cir.
2005).
Plaintiffs EEOC charge makes references both to his diabetes and his allegation that
FedEx prevented him from properly treating his condition. While plaintiff may not have used
the term accommodation in his charge, his claim that FedEx failed to reasonably accommodate
his diabetes is both reasonably related to his complaint and would be developed by a reasonable
investigation. "Documents filed by an employee with the EEOC should be construed, to the
extent consistent with permissible rules of interpretation, to protect the employee's rights and
statutory remedies." Fed. Exp. Corp. v. Holowecki, 552 U.S. 389, 406 (2008). The Court thus
finds that plaintiff exhausted his failure to accommodate claim and it need not be dismissed. See

also Sydnor v. Fairfax Cty., Va., 681F.3d591, 594 (4th Cir. 2012) ("the exhaustion requirement
should not become a tripwire for hapless plaintiffs. While it is important to stop clever parties
from circumventing statutory commands, we may not erect insurmountable barriers to litigation
out of overly technical concerns.").

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Questions of fact remain as to whether FedEx denied plaintiff a reasonable
accommodation. There is conflicting evidence in the record as to whether and when FedEx
became aware of plaintiffs diabetes. Further, "implicit in the fourth element is the ADA
requirement that the employer and employee engage in an interactive process to identify a
reasonable accommodation," and there is a genuine dispute as to whether FedEx and plaintiff
engaged in this process in good faith. Haneke v. Mid-At!. Capital Mgmt., 131 Fed. App'x 399,
400 (4th Cir. 2005) (citing 29 C.F.R. § 1630.2(0)(3)). Accordingly, the Court declines to enter
summary judgment in FedEx's favor on plaintiffs failure to accommodate claim.
II.

Wrongful discharge under North Carolina law
Plaintiffs final claim is for wrongful discharge in violation of the public policy of North

Carolina. Plaintiff does not contest that he was an at-will employee, and under North Carolina
law an at-will employee generally may not raise a wrongful termination claim. Combs v. City

Elec. Supply Co., 203 N.C. App. 75, 79 (2010). There is a public policy exception to this general
rule, however, where an employer's termination is based on an unlawful reason. Id. In response
to the summary judgment motion, plaintiff limits his theory of relief to a violation of North
Carolina's Retaliatory Employment Discrimination Act (REDA), which provides that
no person shall discriminate or take any retaliatory action against an employee
because the employee in good faith does or threatens to ... file a claim or
complaint, initiate any inquiry, investigation, inspection, proceeding or other
action ... with respect to
any of the statutory provisions provided, including the NCWHA. N.C. Gen. Stat. § 95-221(a).
To establish his wrongful discharge in violation of public policy claim, plaintiff must
demonstrate that (1) he engaged in protected activity, (2) his employer took adverse action, and
(3) there is a causal connection between the protected activity and the adverse employment

action. Brewer v. Cabarrus Plastics, Inc., 130 N.C. App. 681, 690 (1998). While plaintiff
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engaged FedEx's internal grievance system by making an Alert Line complaint regarding
Pagan's alleged overtime chopping,
REDA requires that employees pursue or threaten to pursue a "claim or
complaint, [or] initiate [ ] ... [an] action" outside any internal grievance systems
that their employer has developed. Complaining internally, such as an employee
complaining to his supervisor or to human resources, does not suffice.
Hadley v. Duke Energy Progress, Inc, No. 5:14-CV-229-D, 2016 WL 1071098, at *7 (E.D.N.C.
Mar. 17, 2016), aff'd sub nom. Hadley v. Duke Energy Progress, LLC, No. 16-1861, 2017 WL
496091 (4th Cir. Feb. 7, 2017). Plaintiff cannot demonstrate the first element of his REDA claim
and summary judgment is therefore appropriate in FedEx's favor. 3
CONCLUSION
For the foregoing reasons, FedEx's motion for summary judgment [DE 39] is
GRANTED IN PART and DENIED IN PART. Summary judgment is appropriate in favor of
FedEx on plaintiff's FLSA, NCWHA, and REDA claims. Genuine issues of material fact
preclude entry of summary judgment on plaintiffs ADA/ADAA claims. The clerk is
DIRECTED to refer this matter to the appropriate United States Magistrate Judge for pretrial
conference.

SO ORDERED, this

1_ day of April, 2017.

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TEkmcE W. BOYLE
UNITED STATES DISTRICT JUDGE

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Although plaintiff threatened to report Fagan to OSHA and the FAA during the April 7
meeting, plaintiff does not advance this threat as a basis for REDA liability and, in light of
plaintiffs hypoglycemic state, the Court does not find this threat to have been made in good faith
as would be required.
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