Egler v. American Airlines, Inc.

Filing 26

ORDER granting 12 Motion to Dismiss for Failure to State a Claim - Plaintiff's claims under the ADA (count I) and North Carolina law (count III) are DISMISSED WITHOUT PREJUDICE. Plaintiff's FMLA claim (count II) remains. Signed by District Judge Louise Wood Flanagan on 2/21/2018. (Tripp, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:17-CV-73-FL

MARION EGLER,
Plaintiff,
v.
AMERICAN AIRLINES, INC.,
Defendant.

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ORDER

This matter is before the court on defendant’s motion to dismiss counts I and III of plaintiff’s
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (DE 12). Plaintiff has responded
in opposition and defendant has replied. For the following reasons, the motion is GRANTED.
STATEMENT OF THE CASE
Plaintiff, a former employee of defendant, commenced this action on February 10, 2017,
asserting that she was terminated due to disability in violation of the Americans with Disabilities
Act of 1990, 42 U.S.C. § 12101, et seq. (“ADA”); that she was discriminated and retaliated against
for exercise of her rights under the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq.
(“FMLA”); and that she was wrongfully discharged due to retaliation in violation of the Retaliatory
Employment Discrimination Act, N.C. Gen. Stat. § 95-241 (“REDA”), and due to disability in
violation of the North Carolina Equal Employment Practices Act, N.C. Gen. Stat. § 143-422.1, et
seq. (“NCEEPA”). Plaintiff seeks declaratory and injunctive relief returning plaintiff to her prior
position, as well as compensatory and liquidated damages.

Defendant moves to dismiss plaintiff’s ADA claim (count I) on the grounds that it is
untimely and the complaint fails to allege facts supporting the claim; and defendant moves to
dismiss plaintiff’s North Carolina common law claim (count III) on the basis that the complaint fails
to allege facts providing relief under North Carolina law. The motion does not address plaintiff’s
FMLA claim. Plaintiff responded generally in opposition and specifically against dismissal of her
North Carolina common law claim.
The court entered case management order on August 10, 2017, setting deadline for discovery
on March 12, 2018, and deadline for dispositive motions on April 12, 2018.
STATEMENT OF THE FACTS
The facts alleged in the complaint, as pertinent to the instant motion, may be summarized
as follows. Plaintiff is a female, born March 3, 1966, who had been employed by defendant over
25 years prior to her termination on February 11, 2015. Plaintiff most recently served in the position
of Reservations Agent at the South Eastern Regional Office of defendant, at all times relevant to this
action.
Plaintiff was absent from work for the following four time periods: November 2-5, 2014;
November 17-22, 2014; December 17-24, 2014; and January 16-21, 2015. Plaintiff submitted
FMLA Leave of Absence Certification forms, executed by her treating physician, to the appropriate
medical department of defendant for these leaves of absence. Defendant approved these leave
forms.
According to the complaint, “Plaintiff’s medical conditions caused substantial limitations
upon her major life activities within the meaning of ADA,” and “Plaintiff has a history of having
physical impairments which limit her major life activities.” (Compl. ¶¶ 11-12). Also according to

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the complaint, defendant regarded plaintiff as “having physical impairments that substantially
limited her major life activities.” (Id. ¶ 13).
While on leave, defendant asked plaintiff for additional documentation, and plaintiff secured
proper documentation of her disability from her treating physician. Plaintiff further notified
defendant that she intended to seek further medical treatment. According to the complaint,
defendant falsely alleged that plaintiff had engaged in misrepresentation and dishonesty in her
submissions of FMLA documents, which plaintiff categorically denies. Despite plaintiff’s good
faith attempts to rectify defendant’s concerns about her FMLA documents, defendant terminated
plaintiff. According to the complaint, in terminating plaintiff, defendant falsely accused her of
improperly submitting FMLA documentation. Following the termination, plaintiff underwent major
spinal surgery.
Plaintiff filed a charge of discrimination with the Equal Employment Opportunity
Commission (“EEOC”) on or about September 4, 2015, and EEOC provided a notice of rights to sue
on January 27, 2016.
COURT’S DISCUSSION
A.

Standard of Review
“To survive a motion to dismiss” under Rule 12(b)(6), “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly,
550 U.S. at 555. In evaluating whether a claim is stated, “[the] court accepts all well-pled facts as
true and construes these facts in the light most favorable to the plaintiff,” but does not consider

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“legal conclusions, elements of a cause of action, . . . bare assertions devoid of further factual
enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments.” Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted).
B.

Analysis
1.

ADA claim

The ADA “prohibits employers from ‘discriminating against a qualified individual on the
basis of disability in regard to the hiring, advancement, or discharge of employees.’” Gentry v. E.
W. Partners Club Mgmt. Co. Inc., 816 F.3d 228, 236 (4th Cir. 2016) (quoting 42 U.S.C. § 12112(a)).
“To establish a claim for disability discrimination under the ADA, a plaintiff must prove (1) that she
has a disability, (2) that she is a ‘qualified individual’ for the employment in question, and (3) that
her employer discharged her (or took other adverse employment action) because of her disability.”
Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 572 (4th Cir. 2015) (internal quotations
omitted). “‘Disability’ is defined by the ADA as ‘a physical or mental impairment that substantially
limits one or more major life activities.’” Id. (quoting 42 U.S.C. § 12102(1)(A)).
In this case plaintiff’s ADA claim fails because she has not alleged sufficient facts permitting
an inference that she has a disability or that defendant discharged her because of disability. First,
in describing plaintiff’s condition, the complaint parrots the language of the statute, stating, for
example, “[p]laintiff’s medical conditions caused substantial limitations upon her life activities
within the meaning of ADA.” (Compl. ¶ 11; compare 42 U.S.C. § 12102(1)(A)). Plaintiff has not
alleged what those medical conditions were, what limitations were caused by them, or what life
activities substantially were limited by them. Merely reciting the language of the statute is
insufficient to meet the pleading requirement. See Iqbal, 556 U.S. at 663; Nemet, 591 F.3d at 255.

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Plaintiff’s additional statement in the complaint that she “underwent major spinal surgery,”
(Compl. ¶ 24), following her termination, also is insufficient to raise the claim above the speculative
level. This allegation does not provide a sufficient factual basis to infer the nature of plaintiff’s
limitations prior to her termination, or whether and in what respect they substantially limited a major
life activity.
Second, plaintiff has failed to allege facts permitting an inference that defendant discharged
plaintiff due to her disability. Rather, plaintiff alleges in the complaint that defendant discharged
plaintiff by falsely accusing her of improperly submitting FMLA documentation. (Compl. ¶ 23).
Further, having not alleged with particularity the alleged nature of plaintiff’s disability, the court is
left to speculate on any causal connection between defendant’s reasons for terminating plaintiff and
a generally alleged “disability.” (Compl. ¶ 28). Again, plaintiff couches her claim in the language
of the statute, stating only that defendant terminated her “because of her status as a qualified
individual with a disability, her history of disability, and her being regarded as having a disability.”
(Id.). Plaintiff alleges no facts to raise this claim above the speculative level.
Therefore, plaintiff’s ADA claim must be dismissed without prejudice for failure to allege
facts supporting the elements of the claim. Where the court determines plaintiff has failed to state
an ADA claim on this basis, the court does not reach defendant’s alternative argument that plaintiff’s
ADA claim is untimely.
2.

North Carolina law

In her complaint, plaintiff asserts a North Carolina common law wrongful discharge claim
based upon retaliation in violation of REDA and based upon discrimination in violation of public
policy under NCEEPA. The court will address each in turn.

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a.

REDA

REDA prohibits “retaliatory action against an employee because the employee in good faith
does or threatens to” file a claim or complaint related to workers compensation, occupational health
and safety, and other enumerated statutory rights. N.C. Gen. Stat. § 95-241. Here, plaintiff does not
allege any facts permitting an inference that she engaged in conduct protected by REDA. Nor does
she identify in opposition to the instant motion any statutory rights exercised under REDA.
Accordingly, Plaintiff’s claim under REDA must be dismissed for failure to state a claim.
Moreover, REDA provides that “[a]n employee may only bring an action under this section
when [s]he has been issued a right-to-sue letter by the [state] Commissioner [of Labor].” N.C. Gen.
Stat. § 95-243. Where plaintiff does not allege issuance of a right to sue letter, and where the statute
expressly mandates such a letter as a prerequisite to suit, plaintiff’s REDA claim also must be
dismissed on this independent basis. See,e.g., Williams v. Tillman, 229 N.C. 434, 435 (1948) (noting
that failure to comply with “mandatory” statutory requirements deprives the court of jurisdiction);
Hopkins v. Hopkins, 132 N.C. 22, 43 S.E. 508, 508 (1903) (same); cf. In re D.S., 364 N.C. 184, 194
(2010) (stating that statutory requirements which are “directory, rather than mandatory” are “not
jurisdictional”).
Plaintiff cites Commissioner of Labor of N. Carolina v. House of Raeford Farms, Inc., 124
N.C. App. 349, 354 (1996), for the proposition that REDA timelines are neither “jurisdictional” nor
“mandatory.” House of Raeford Farms, however, did not address the statutory requirement at issue
here. There, the North Carolina Court of Appeals observed that REDA “fails to provide a
consequence for the Commissioner’s failure to comply with the 90–day period given to make a
determination about a complaint,” and thus, the court held, “this statutory time period is of a

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directory, not jurisdictional nature.” Id. at 356 (emphasis added). The court did not address,
however, the mandatory pre-requisite in REDA for filing suit, namely that “[a]n employee may only
bring an action under this section when [s]he has been issued a right-to-sue letter by the [state]
Commissioner [of Labor].” N.C. Gen. Stat. § 95-243. Accordingly, House of Raeford Farms is
inapposite.
In sum, plaintiff’s state law claim asserted under REDA must be dismissed for failure to state
a claim upon which relief can be granted.
b.

NCEEPA

Plaintiff asserts a common law claim for wrongful discharge in violation of public policy
against “discrimination” in employment actions. (Compl. ¶ 35). NCEEPA states that it is the public
policy of North Carolina to safeguard the right of “employment without discrimination or
abridgement on account of race, religion, color, national origin, age, sex or handicap . . . .” N.C.
Gen. Stat. § 143-422.2 . Although the North Carolina Supreme Court has not addressed application
of this statute in the context of disability discrimination, some courts including this one in the past
have interpreted NCEEPA to provide a basis for a common law wrongful discharge claim based
upon discrimination due to disability. See, e.g., Sidhu v. Cancer Centers of N. Carolina, P.C., No.
5:12-CV-603-FL, 2013 WL 2122958, at *4 (E.D.N.C. May 15, 2013) (collecting federal cases
recognizing same).
The North Carolina Supreme Court has looked to federal decisions and standards for
evaluating claims of discrimination premised upon NCEEPA. See N. Carolina Dep’t of Correction
v. Gibson, 308 N.C. 131, 136 (1983). Accordingly, in this case, for the reasons stated above
regarding plaintiff’s federal ADA claim, plaintiff has failed to allege facts giving rise to a plausible

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inference that defendant discriminated against plaintiff due to disability. Thus, plaintiff’s claim
under NCEEPA must be dismissed for failure to state a claim.

CONCLUSION
Based on the foregoing, defendant’s motion to dismiss (DE 12) is GRANTED. Plaintiff’s
claims under the ADA (count I) and North Carolina law (count III) are DISMISSED WITHOUT
PREJUDICE. Plaintiff’s FMLA claim (count II) remains.
SO ORDERED, this the 21st day of February, 2018.

_____________________________
LOUISE W. FLANAGAN
United States District Judge

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