HUGHES v. BE AEROSPACE, INC. et al

Filing 47

MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 03/07/2014 as set out herein. ORDERED that the motions for summary judgment by B/E (Doc. 33 ) and the individual Defendants (Doc. 35 ) are GRANTED and that the case is DISMISSED WITH PREJUDICE. Costs shall be awarded to Defendants.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ARTHUR W. HUGHES,
Plaintiff,
v.
B/E AEROSPACE, INC.; MARK B.
DOWTY; MARK I. VAUGHAN; and
SUZANNE K. HELMICK,
Defendants.

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1:12CV717

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
Before the court in this employment action are motions for
summary judgment pursuant to Federal Rule of Civil Procedure 56
filed by all Defendants.

Defendant B/E Aerospace, Inc. (“B/E”),

moves for summary judgment on Plaintiff Arthur W. Hughes’ claims
of interference and retaliation in violation of the Family and
Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq.,
age discrimination in violation of the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., disability
discrimination in violation of the Americans With Disabilities
Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., and wrongful
discharge in violation of North Carolina’s public policy against
age discrimination, as embodied in N.C. Gen. Stat. § 143–422.2.
(Doc.

33.)

Defendants

Mark

B.

Dowty,

Mark

I.

Vaughan,

and

Suzanne K. Helmick (collectively the “individual Defendants”),

all employees of B/E, move for summary judgment on the FMLA
claims against them.

(Doc. 35.)

For the reasons stated herein,

both motions will be granted.
I.

BACKGROUND 1
A.

Hughes’ employment with B/E

B/E is a Delaware corporation with a place of business in
Winston-Salem, North Carolina.

(Doc. 16 ¶ 3.)

It is engaged in

the business of manufacturing aircraft cabin interior products.
(Id.)

During the relevant period, Defendant Dowty was B/E’s

Director of Engineering (Dowty Dep. at 10), 2 Defendant Vaughan
was its head of sales and marketing department (Vaughan Dep. at
7), 3 and Defendant Helmick was its human resources (“HR”) manager
in the seating products group (Doc. 37–9 at 2).
Hughes was hired by B/E on January 21, 2008, as a project
engineer

in

the

research

and

development

department

seating products group in the Winston-Salem office.
¶ 7; Doc. 16 ¶ 7.)

of

the

(Doc. 1

Though Hughes is a licensed professional

engineer, he had no experience in the aerospace industry prior
1

A substantial portion of Hughes’ factual briefing fails to cite to
the record, in violation of Local Rule 7.2(a)(2). A party should not
expect a court to do the work that it elected not to do.

2

Dowty’s deposition, portions of which were submitted by Hughes, B/E,
and the individual Defendants, is located at Docs. 37–2 and 38–2 and
will be cited as “Dowty Dep.”

3

Vaughan’s deposition, portions of which were submitted by Hughes,
B/E, and the individual Defendants, is located at Docs. 37–5 and 38–3
and will be cited as “Vaughan Dep.”

2

to

his

employment

at

B/E.

(Hughes

Dep.

37.) 4

at

Hughes’

supervisors in this position were Steve Hastings and Steve Kash.
(Id.

at

86.)

Hughes

performed

acceptably

at

first;

presented him with a monthly award in February 2009.

Kash

(Doc. 38-5

(noting that Hughes performed “at a high level” and “has done a
great job”).)

Yet his supervisors rated his performance during

the calendar year 2008 at 2.8 on a 4.0 scale (just below the
“meets

expectations”

level,

development” level of 2.0). 5
began

attending

degree

in

night

Business

and

above

(Doc. 37–13.)

classes

and

“needs

further

Additionally, Hughes

working

Administration

University in August 2008.

the

toward

a

at

Wake

(“MBA”)

(Hughes Dep. at 38.)

Master’s
Forest

Pursuant to a

written agreement between Hughes and B/E, B/E reimbursed the
entirety of Hughes’ tuition payments.

(Id. at 39.)

successfully completed the program in August 2010.

Hughes

(Id. at 38.)

In the summer of 2009, Hastings approached Hughes about the
possibility
department.
him

he

was

interested

of

transitioning

(Id. at 88.)
doing
in

the

a

good

into

the

sales

and

marketing

According to Hughes, Hastings told
job,

transfer.

and
(Id.)

he

told
Not

Hastings
long

he

after

was
this

4

Hughes’ deposition, portions of which were submitted by Hughes, B/E,
and the individual Defendants, is located at Docs. 37–1, 38–1, and 40–
1 and will be cited as “Hughes Dep.”

5

Hughes’ “Interim Employee Evaluation Form,” completed by Hastings and
covering the 90-day period ending on April 21, 2008, rated his
performance as a 2.9 on the same 4.0 scale. (Doc. 37–12; Hughes Dep.
at 86.)

3

conversation, Hughes moved into sales and marketing.
16 at 3.) 6

(Doc. 37–

Thereafter, Hughes reported directly to Dowty (Hughes

Dep. at 10, 86, 88), and his job title was project engineer
(Doc. 37–16 at 1).
the department.
Under
consisted

Dowty reported to Vaughan, who was head of

(Dowty Dep. at 12.)

Dowty’s

supervision,

primarily

of

Hughes’

responding

job

to

responsibilities

requests

for

quotes

(“RFQs”) that B/E received from account managers representing
air

carriers

(Hughes

Dep.

passenger

and

air

framers,

such

as

at

54.)

Hughes

then

developed

accommodations,

which

arrangement for an aircraft.
ensuring

that

Regulations.

the
(Id.)

is

(Id.)

products

Boeing

and
a

essentially

Airbus.

layout

the

of

seating

He was also responsible for

complied

with

Federal

Aviation

Specifically, Hughes’ job was to handle

this process for four B/E product lines for narrowbody aircraft:
Spectrum, Pinnacle, Icon, and Millennium.
Soon
workload

after

Hughes

increased

staying on pace.

transitioned

substantially

(Id. at 63.)

and

(Id. at 53.)

into
he

Dowty’s
began

group,

having

his

trouble

Although the number of RFQs was

increasing for everyone in the group, Hughes perceived that his
workload

was

coworkers.

increasing

at

(Id. at 63–64.)

a

faster

rate

than

that

of

his

He based this perception on a board

6

Dowty noted on Hughes’ 2009 performance appraisal that Hughes
transitioned into his current role, in the sales and marketing
department, in the second quarter of 2009.

4

maintained in the department that posted incoming RFQs.

(Id.)

According to “a physical snapshot of the boards,” many of the
incoming

RFQs

were

related

Hughes’ name beside them.
Around
physicians

this
for

time,

symptoms

to

narrowbody

aircraft

and

had

(Id. at 64.)
Hughes
he

began

described

visiting
as

a

series

“[c]ognitive

of

issues,

short-term memory loss, inability to concentrate, irritability,
[and] daytime sleepiness.”

(Id. at 47.)

These symptoms were

causing him to fall behind in what he described as a “fast-paced
job” and struggle with his assignments in school.

(Id. at 49.)

Hughes first visited his primary care physician, Dr. Metheney,
reporting that he was having difficulty sleeping.

(Id. at 48.)

Dr. Metheney ordered a sleep study, referring him to Carolina
Sleep Medicine in September of 2009.

(Id.; Doc. 37–11 at 5.)

The results of the study were inconclusive because Hughes was
unable to fall asleep.

(Hughes Dep. at 52; Doc. 37–11 at 5.)

On the day of the sleep study, Hughes arrived at work at around
noon and reported to Dowty that he participated in a sleep study
but did not share any diagnosis at that time.

(Hughes Dep. at

52.)

via

Subsequently,

Hughes

informed

Helmick

e-mail

on

November 18, 2009, that he had been diagnosed with a condition
known as hypoxia 7 and that the condition was beginning to affect

7

Hypoxia refers to “a deficiency of oxygen reaching the tissues of the
body whether due to environmental deficiency or impaired respiratory

5

(Doc. 38–7 at 1.) 8

his quality of work.

Dowty also testified

that Hughes first told him sometime during the fall of 2009 that
he was having trouble sleeping and experiencing stress.

(Dowty

Dep. at 44.)
On

January

communications

21,

with

(Doc. 37–9 at 2.)

2010,

again

regarding

Helmick

Hughes

his

initiated
medical

e-mail

condition.

Hughes indicated that he had consulted with a

physician over the Christmas holiday and that the physician had
prescribed medication to help treat his increased stress levels
at work.
necessary

(Id.)
to

Hughes further stated that he “felt it was

inform

[Dowty]

that

[Hughes’]

heightened

level was now being addressed with medication.”

(Id.)

stress

He asked

for information about “the company’s policy regarding employee
health

conditions

and

job

performance”

and

indicated

that

a

meeting between himself, Dowty, and Helmick was scheduled for
the following Monday, January 25.

(Id.)

In response, Helmick

stated the company’s policy of complying with the ADA and FMLA
and explained some of the requirements of those statutes.
37–10.)

She

also

confirmed

the

January

25

meeting,

(Doc.
writing

“[i]t is my understanding that you, Mark Dowty and I will be

and circulatory organs.”
at 1117 (1986).

Webster’s Third New International Dictionary

8

Hughes testified that Dr. Metheney, as opposed to the doctors he
visited subsequently, diagnosed his hypoxia. (Hughes Dep. at 49.)

6

meeting on Monday to discuss your situation in order for all of
us to explore potential options.”

(Id.)

At the meeting, Hughes requested to be removed from three
of the four product lines for which he was responsible, leaving
him with only the Spectrum line, which he viewed as his main
focus.

(Hughes

Dep.

at

159–60.)

Dowty

denied

this

restructuring because it would not be feasible and would create
an unnecessary burden on Hughes’ coworkers.
23.) 9
if

(Helmick Dep. at

Helmick proposed other possible accommodations: she asked

Hughes

thought

that

either

suspending

his

taking a leave of absence would be helpful.
at 167.)

Hughes rejected both options.

MBA

studies

or

(Id.; Hughes Dep.

(Helmick Dep. at 23;

Hughes Dep. at 167.)

Helmick also talked with Hughes about

possibly

a

moving

into

manufacturing

engineer

or

process

engineer role in another group or department; although Hughes
expressed some willingness to transfer, there were no positions
open in the company in those areas at the time.

(Helmick Dep.

at 23–24.)
In February 2010, Dowty scored Hughes’ performance during
the calendar year of 2009 at 1.7 out of a possible 4.0, below
the “needs further development” threshold of 2.0.
at

6.)

Hughes

received

a

rating

9

of

1,

or

(Doc. 37–16

“does

not

meet

Helmick’s deposition, portions of which were submitted by Hughes,
B/E, and the individual Defendants, is located at Docs. 37–4 and 38–4
and will be cited as “Helmick Dep.”

7

expectations,” in the category of “Job Knowledge.”

(Id. at 3.)

Dowty commented: “Art transferred into this team in summer 2009
with

high

expectations

due

to

academic proficiency. . . .
asset envisioned.”
Performance

his

experience

and

Art has failed to develop into the

(Id. at 10.)

Improvement

assumed

Plan

Dowty also indicated that a

(“PIP”)

had

been

developed

“to

allow Art to rapidly improve performance and become successful
in this position.”
Hughes
space

was

(Id.)

permitted

provided

on

the

to

last

comment
page.

on
He

the

evaluation

stated

that

in

his

a

job

performance issues were being caused both by his health issues
(characterized as a “[b]reathing disorder resulting in insomnia”
as well as “[g]eneral anxiety”) and his lack of qualifications
relating to his job function.
wrote

that

he

was

(Id. at 11.)

“lacking

experience

Specifically, he
and

specialized

knowledge,” that the product lines he was responsible for were
“specialized in nature and reside in a niche market,” and that
he had received no formal training for the position.
Regarding

his

health

issues,

he

noted

that

he

(Id.)

remained

on

medication for anxiety, that he continued under the care of a
physician for both insomnia and anxiety, and that the root cause
of the breathing disorder was unknown, “with treatment being one
of an indefinite timeline.”

(Id.)

He further commented that he

observed some improvement as a result of the treatment, that he
8

had requested either a modification of his job responsibilities
or a transfer to a more low-stress job, and that he expected his
PIP to take effect about February 22, 2010.

(Id.)

Regarding Dowty, Hughes wrote that he “found many of the
performance

review

comments

from

[Dowty]

both

lacking

sensitivity and degrading, [but Hughes was] anticipating that
[Dowty’s]

education

about

[Hughes’]

impairments

[Dowty’s] lack of sensitivity . . . .”

(Id.)

will

improve

Specifically,

Hughes testified in his deposition that Dowty assumed a negative
tone

and

demeanor

during

the

review

process,

threatening

to

involve Vaughan and Helmick because he did not feel that Hughes
was cooperating.

(Hughes Dep. at 142.)

Dowty once told Hughes

to “shut up” after Hughes brought up an objection to something
in the evaluation and commented “you don’t look sick to me”
before the review process began.

(Id. at 140–41, 143.)

As outlined in the evaluation, Hughes was placed on a PIP
beginning
identified

on

February

five

areas

22,
of

2010.
deficiency

(Doc.

37–20.)

relating

to

The

PIP

Hughes’

job

performance and assigned Hughes a different mentor for each area
to help him reach a satisfactory level of performance.

(Id.)

As part of Hughes’ development, the PIP required Hughes to sit
for five examinations or assessments and score at acceptable

9

levels.

(Id.

at

1–2;

Dowty

Dep.

69.) 10

at

The

individual

mentors in each area were responsible for designing the tests,
but Dowty and HR drafted and approved the PIP.
49–50.)

In

a

final

section,

titled

(Dowty Dep. at

“Consequences,”

the

PIP

stated that Hughes was required to meet with Dowty weekly to
review

his

progress,

that

his

progress

would

be

formally

documented in 30 days, and that failure to meet the expectations
set out in the PIP could result in termination.

(Doc. 37–20 at

3.)
On March 23, 2010, Hughes received a memorandum from Dowty
containing his 30-day progress report.

Dowty commented:

Noticeable progress has been made towards correcting
the areas of deficiency identified in [the PIP]. Some
areas
continue
to
require
additional
work
and
additional time is required to address other areas
more completely.
Generally your progress has been
acceptable and on-track with expectations.
(Doc. 37–21 at 1.)
sit

for

three

However, the PIP still required Hughes to

additional

examinations.

(Id.

at

1–2.)

Subsequently, he received another memorandum on June 7, 2010,
reviewing the 60 days that had passed since the issuance of the
first

progress

report.

(Doc.

37–22.)

There,

Dowty

wrote,

“[i]nitial progress you made in the first 30 days has not been
followed with an equivalent level of progress.”

10

(Id. at 1.)

The PIP did not require Hughes to sit for examinations relating to
each of the five areas of deficiency, but rather included two
examinations in each of the first two areas and one in the third area.
(Doc. 37–20 at 1–2.)

10

Specifically,

Hughes

“certification

was

given

application

required by the PIP.

three

quiz,”

attempts

one

(Id. at 2.)

of

to

the

take

the

examinations

Dowty stated that “[y]our

third attempt on the exam only served to underscore your lack of
comprehension of the basic certification application principles
needed for [the] position.”

(Id.)

Hughes scored a 38% on the

examination, supporting a conclusion that “there is insufficient
evidence

to

support

a

notion

that

[Hughes’]

engineering

estimates for programs involving a certification program would
be optimized or valid.”
that

Hughes

could

be

(Id.)

The update included a warning

terminated

performance not meet expectations.

within

30

days

should

his

(Id. at 1.)

In his deposition, Hughes expressed objections to certain
aspects of the PIP evaluations.
of

the

requirements

of

the

Although he admitted that some

PIP

were

reasonable,

he

believed

others were overwhelming and designed to set him up for failure.
(Hughes

Dep.

at

190.)

For

example,

he

testified

that

the

“subjective” tests devised by Dowty and Dennis Hedrick (one of
his mentors as part of the PIP) were unfair because he was not
tested on what he learned during the training exercises.
at

190,

192.)

He

was

particularly

frustrated

and

(Id.

skeptical

regarding the PIP when Dowty told him to “make up questions” to
ask

Hedrick

during

one

of

the

11

training

exercises.

(Id.

at

191.) 11

He also testified that he unsuccessfully asked Dowty to

retake one of his examinations orally, and that upon asking for
a retake on another occasion, Dowty responded “I don’t have time
for that.

I’m going on vacation.”

(Id. at 194–95.)

However,

Dowty specifically testified, without contradiction, that Hughes
was

given

three

opportunities

to

take

the

“certification

application quiz” and, on the third attempt, scored 38%.

(Dowty

Dep. at 49.)
On June 23, Hughes left work for a period of FMLA leave.
(Hughes Dep. at 202; Doc. 37–18.)

Erin Elliott, HR Generalist

at B/E, signed his FMLA designation form on behalf of B/E and
indicated that his request for FMLA leave was approved.
37–18

at

provider

1.)

Dr.

section

Jason

of

the

Thomason
form

the

indicated

and

completed

that

health

scheduled to complete a sleep study before July 15.
5.)

Hughes

testified

that,

other

than

the

underwent no treatment during his FMLA leave.
206.)

(Doc.

sleep

care

Hughes

was

(Id. at 3–
study,

he

(Hughes Dep. at

Rather, he had seen results of a medical test showing

that his level of anxiety was dangerously high and he felt that
taking

time

off

from

work

would

benefit

his

overall

health.

(Id. at 206, 209.)
11

Hughes believed that this statement shows that Dowty did not take
the PIP seriously, because he did not think that making up questions
when he had none served any legitimate purpose. (Hughes Dep. at 191.)
Dowty disputes that he ever told Hughes to “make up questions.”
(Dowty Dep. at 49–50.)
However, the court accepts Hughes’ testimony
for the purposes of the present motions.

12

Hughes returned to work on July 19.

(Id. at 217.)

Upon

his return, he received another memorandum from Dowty containing
an addendum to the 60-day update he had received on June 7.
(Doc.

37–23.)

It

indicated

that

Dowty

received

additional

information about instances of unsatisfactory performance while
Hughes was out on FMLA leave, including the results of Hughes’
“Engineering
addendum

Frame

stated

Specifications

that

the

final

quiz.”

PIP

(Id.

summary

at

would

1.)
be

The

due

on

August 12 and that Hughes would be terminated if he did not meet
expectations at that time.

(Id.)

With respect to his job responsibilities, Hughes testified
that, although he returned to the same workstation with the same
salary,

benefits,

and

supervisor

following

his

FMLA

leave

(Hughes Dep. at 217), he was given only one further assignment
(id. at 218–19).

According to Hughes, instead of his typical

job responsibilities, including responding to RFQs, he was given
a

simple

functions.

spreadsheet
(Id.)

project

using

basic

Microsoft

Excel

He testified that the project was so simple

that an intern could have completed it.

(Id. at 257.)

He

further stated that, “[w]hen I returned I would have expected
RFQs given to me, and I can’t recall any being given to me in
the same capacity as when I left.”

(Id. at 222.)

However, he

could not identify any RFQs that B/E received after he returned
from FMLA leave.

(Id.)
13

B/E submitted a table depicting all RFQs received relating
to Hughes’ four product lines between June and August of 2010.
(Doc. 37–3 at 2-3.)

The chart shows that no incoming RFQs were

sent to engineering between July 19, when Hughes returned from
FMLA leave, and July 27, when he was placed on administrative
leave.

(Id.)

project

was

responsible

a

Furthermore,
portion

for,

which

of

a

he

called

(Dowty Dep. at 15–16.)
part of the project.
had

several

continuing

Dowty

testified

larger
a

that

assignment

the

that

“market-share

Excel

he

was

analysis.”

He enlisted Hughes’ help to complete
(Id.)

Dowty also testified that Hughes

objectives

that

he

should

working on upon his return, pursuant to the PIP.

have

been

(Id.)

Eight days after his return from FMLA leave, Hughes was
placed on paid administrative leave.

(Doc. 16 ¶ 22.)

According

to Vaughan, Hughes was placed on administrative leave while his
supervisors sought approval from corporate management for his
termination.

(Vaughan Dep. at 47.)

Dowty testified that he

recommended Hughes be terminated because of “a long series of
events that showed [Hughes] was incapable of doing the job, on
top of – once he returned, his disinterest in the job.”
Dep. at 14.)
leave

Hughes

facility

(Dowty

According to Dowty, after returning from FMLA
was

without

“[c]onstantly
telling

away

anyone,

assignments he had been given.”
14

from

[and]
(Id.)

his

desk,

didn’t

left

the

complete

the

Hughes admittedly had

trouble focusing on everyday tasks at work and did not complete
all of the continuous improvement projects outlined in the PIP
(Hughes

Dep.

at

187),

and

nothing

in

the

record

contradicts

Dowty’s testimony with respect to Hughes’ disinterest.
was officially terminated on August 3, 2010.
B.

Hughes

(Doc. 37–17.)

Hughes’ replacement at B/E

On June 25, 2010, contemporaneous with Hughes’ FMLA leave,
B/E

posted

products

an

open

group.

position
(Doc.

for

an

38–13.)

engineer
The

in

the

posting

seating

sought

an

“energetic, self-starter” able to begin employment by July 19.
(Id.

at

1.)

Hughes

contends

that

B/E

posted

his

job

as

available when he went on FMLA leave and specifically sought a
younger

person

However,

for

Dowty

his

position.

testified,

(Hughes

without

Dep.

at

contradiction,

127–29.)
that

the

posting was for a new position which was budgeted in 2009 as a
result of increased workload.

(Dowty Dep. at 76.)

According to

Dowty, the new position had nothing to do with Hughes’ job and
the timing was merely coincidental.

(Id. at 76–77.)

B/E filled the position described in the post when it hired
LaKeitha

Bennett

as

Hughes’ termination.
59.)
6,

a

temporary

employee

around

the

time

of

(Vaughan Dep. at 45; Helmick Dep. at 58–

She was eventually hired on a permanent basis on December
2010.

testified,

(Doc.
without

38–11.)

The

individual

contradiction,
15

that

Defendants
Tommy

all

Phillips

transferred to Winston-Salem in early 2011, in effect to fill
Hughes’

position.

(Dowty

Vaughan Dep. at 45.)

Dep.

at

77;

Helmick

Dep.

at

58;

Both Bennett and Phillips appear to have

been under the age of 40 at the time they were hired, 12 while
Hughes testified that he was 44 when he was terminated.

(Hughes

Dep. at 10.)
C.

Procedural background

Hughes filed a charge of discrimination with the United
States

Equal

January

25,

Employment
2011.

questionnaire,
responsible
Vaughan.

the

(Doc.

testified

(Doc.

Hughes

for

that

Commission

37–15.)

indicated

On

that

discrimination,

37–14

he

Opportunity

at

2.)

included

his

Dowty

and

but

At

Vaughan

(“EEOC”)

made

his
as

a

EEOC

intake

Helmick

no

on

were

mention

deposition,
defendant

of

Hughes
in

this

litigation because Vaughan was the one who officially placed him
on

administrative

termination.

leave

and,

in

Hughes’

view,

caused

his

(Hughes Dep. at 173–74.)

The EEOC issued Hughes a right-to-sue letter on June 7,
2012.

(Doc.

initiated

this

1

¶

90;

lawsuit.

Doc.

16

Against

¶

90.)
B/E,

Thereafter,

Hughes

asserts

Hughes
claims

under the FMLA for interference and retaliation (first claim),
12

The record is not clear on this point. Bennett’s resume indicates
that she graduated from college in June of 1998 with a bachelor’s
degree and began working in 1999.
(Doc. 38–12 at 4–5.)
Phillips’
resume indicates that he graduated from college in December 2006 and
began working for B/E in Miami in August 2007. (Id. at 8.) From this
information, it appears that both were under the age of 40 in 2010.

16

under the ADEA for age discrimination (second claim), under the
ADA for disability discrimination (third claim), and under North
Carolina law for a violation of the public policy against age
discrimination

claim). 13

(fourth

Against

the

individual

Defendants, Hughes asserts interference and retaliation claims
under the FMLA (first claim).
all

Defendants

moved

for

At the conclusion of discovery,

summary

judgment.

(Docs.

33,

35.)

Hughes opposes the motions (Docs. 38, 39), and the Defendants
have filed replies (Docs. 40, 41).

The motions are now ripe for

consideration.
II.

ANALYSIS
A.
“The

Standard of review
court

shall

grant

summary

judgment

if

the

movant

shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).

The moving party bears the burden of

establishing that no genuine dispute of material fact remains.
When the non-moving party has the burden of proof, the moving
party is entitled to summary judgment if it shows the absence of
material disputed facts.
317, 322-23, 325 (1986).

Celotex Corp. v. Catrett, 477 U.S.
“As the Supreme Court has made clear,

‘courts should [not] treat discrimination differently from other
13

Hughes’ breach of contract claim against B/E (fifth claim) was
voluntarily dismissed on January 23, 2013, and has not been
reasserted. (Doc. 27.)

17

ultimate questions of fact.’”

Merritt v. Old Dominion Freight

Line, Inc., 601 F.3d 289, 295 (4th Cir. 2010) (quoting U.S.
Postal

Serv.

(1983)).

Bd.

of

Governors

v.

Aikens,

460

U.S.

711,

716

In assessing whether a genuine dispute of material

fact sufficient to preclude summary judgment exists, the court
regards

the

non-movant’s

statements

as

true

and

accepts

all

admissible evidence and draws all inferences in the non-movant’s
favor.

Anderson

(1986).
“mere

existence

not

Liberty

Lobby,

Inc.,

477

U.S.

242,

255

But a non-moving party must establish more than the

position.
is

v.

of

a

Id. at 252.
significantly

granted.”

Id.

at

scintilla

of

evidence”

to

support

his

If the evidence is “merely colorable, or
probative,

249-50

summary

(citations

judgment

omitted).

may

be

Ultimately,

summary judgment is appropriate where the non-movant fails to
offer “evidence on which the jury could reasonably find for the
plaintiff.”
B.

Id. at 252.

FMLA claims
1.

Interference

The FMLA provides, “[i]t shall be unlawful for any employer
to interfere with, restrain, or deny the attempt to exercise,
any right under this chapter.”

29 U.S.C. § 2615(a)(1).

One

right enjoyed by employees under the FMLA is the ability to take
“a total of 12 workweeks of leave during any 12-month period,”
without risk of losing one’s job, for any number of reasons,
18

including “a serious health condition that makes the employee
unable

to

perform

employee.”

the

functions

of

the

Id. §§ 2612(a)(1), (a)(1)(D).

position

of

such

The statute requires

that after taking leave, the employee must be restored to his
former position or to “an equivalent position with equivalent
employment

benefits,

employment.”
As

the

pay,

and

other

terms

and

conditions

of

Id. § 2614(a)(1)(B).
Fourth

Circuit

has

explained,

these

substantive

rights guaranteed by the FMLA are prescriptive, as opposed to
the

proscriptive

provisions

protecting

employees

from

discrimination and retaliation for exercising substantive rights
under the FMLA.
F.3d

541,

546

See Yashenko v. Harrah’s NC Casino Co., 446
(4th

Cir.

2006);

cf.

29

U.S.C.

(prohibiting discrimination and retaliation).

§

2615(a)(2)

An “interference”

claim exists only when the employer takes an affirmative action
to prevent or restrain the employee’s ability to exercise his
substantive rights under the FMLA.
This limitation is evidenced by the elements of the claim.
“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
19

entitled.”

Ijames

v.

Autumn

Corp.,

No.

1:08CV777,

2009

WL

2171252, at *8 (M.D.N.C. July 20, 2009) (quoting Rodriguez v.
Smithfield

Packaging

Co.,

545

F.

Supp.

2d

508,

516

(D.

Md.

2008)); accord Edgar v. JAC Prods., Inc., 443 F.3d. 501, 507
(6th Cir. 2006).

Without evidence that an employee was denied a

substantive right secured by the FMLA, the fifth element of an
interference claim cannot be satisfied.
In this case, it is undisputed that Hughes was granted FMLA
leave, took a leave of absence for approximately three weeks,
and returned to the same workstation, supervisor, salary, and
benefits.

Hughes’ contention that he was not returned to the

same or equivalent job is belied by the record.

He argues that

he was not working on RFQs when he returned and instead was
assigned to a mundane spreadsheet project.

However, Defendants

introduced uncontroverted evidence that no RFQs were sent to
engineering between Hughes’ return to work and his placement on
administrative

leave.

Moreover,

Hughes

had

other,

ongoing

assignments related to the PIP, and the spreadsheet assignment
was part of a larger project that Vaughan and Dowty were working
on.

Simply put, there is no record evidence to support Hughes’

claim that he was not returned to the same job for eight days

20

following his FMLA leave.

Therefore, Defendants’ motions for

summary judgment on this claim will be granted. 14
2.
FMLA

Retaliation

retaliation

claims

are

analyzed

under

the

burden-

shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792, 800–06 (1973).

See Yashenko, 446 F.3d at 550-51.

In order

to prevail on his FMLA retaliation claim, Hughes first must make
a prima facie showing that (1) he engaged in protected activity
under the FMLA, (2) B/E took adverse action against him, and (3)
the adverse action was causally connected to Hughes’ assertion
of FMLA rights.

Id. at 551 (citing Cline v. Wal-Mart Stores,

Inc., 144 F.3d 294, 301 (4th Cir. 1998)).

Should Hughes produce

sufficient prima facie evidence, the burden of production shifts
to B/E to articulate a legitimate, non-retaliatory explanation
for Hughes’ termination.

Id.

If B/E satisfies this burden,

Hughes retains the ultimate “burden of establishing that [B/E’s]
proffered explanation is pretext for FMLA retaliation.”

14

Id.

The court notes that Hughes effectively abandoned the interference
claim in his response brief.
Hughes’ FMLA argument conflates the
interference and retaliation claims, treating them as the same claim.
The only authority cited in the section, Blohm v. Dillard’s Inc., 95
F. Supp. 2d 473 (E.D.N.C. 2000), is an FMLA retaliation case, and the
heading of the FMLA section of Hughes’ brief reads “[B/E] violated the
Plaintiff’s rights under the FMLA when Defendant [B/E] terminated the
employment of the Plaintiff.”
(Doc. 38 at 8 (emphasis added).)
As
noted above, Hughes’ termination may create a retaliation claim, but
it does not establish an interference with Hughes’ attempt to exercise
his substantive rights under the FMLA. See Yashenko, 446 F.3d at 546.
In fact, Hughes exercised those rights fully before he was terminated.

21

(quoting Nichols v. Ashland Hosp. Corp., 251 F.3d 496, 502 (4th
Cir. 2001)).
The first two elements of Hughes’ prima facie case are not
in dispute; the parties agree that Hughes exercised his right to
take FMLA leave beginning on June 23, 2010, returned to work on
July 19, was placed on administrative leave on July 27, and was
ultimately

terminated

on

August

3.

With

respect

to

Hughes’

prima facie case, the only contested element is causation.
B/E

argues

that

Hughes’

termination

was

not

causally

related to his FMLA leave because his performance issues and the
threat of termination predated any exercise of FMLA rights.

The

Fourth Circuit has not determined whether plaintiffs in FMLA
retaliation cases must prove but-for causation to prevail, cf.
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528
(2013)

(but-for

causation

required

to

prevail

on

retaliation

claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq.); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167,
180

(2009)

(but-for

causation

required

to

prevail

on

ADEA

claim), or whether retaliation must be only a motivating factor
in the employer’s termination decision, cf. Price Waterhouse v.
Hopkins,

490

§ 2000e-2(m))
Title VII).

U.S.

228,

258

(recognizing

(1989)

(superseded

mixed-motive

cause

of

by

42

action

U.S.C.
under

See Averette v. Diasorin, Inc., No. 3:11CV203, 2011

WL 3667218, at *3 (W.D.N.C. Aug. 22, 2011) (noting the lack of
22

Fourth

Circuit

issue,

precedent).

however,

because

The

court

Hughes’

need

not

argument

resolve

is

this

ultimately

unsuccessful even under the “motivating factor” analysis.
Applying the less stringent “motivating factor” standard,
the undisputed evidence allows Hughes to meet “the less onerous
burden of making a prima facie case of causality.”

Hoyle v.

Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011) (quoting
Williams

v.

1989)).

In many cases, temporal proximity between termination

and

Cerberonics,

protected

activity

Inc.,

under

a

871

F.3d

452,

457

non-discrimination

(4th

Cir.

statute

is

sufficient to make out prima facie causation under McDonnell
Douglas.
then

See, e.g., Hoyle, 650 F.3d at 337 (reassignment and

termination

within

two

months

of

reporting

harassment

sufficient under Title VII); King v. Rumsfeld, 328 F.3d 145, 151
& n.5 (4th Cir. 2003) (termination two months and two weeks
after protected activity sufficient under Title VII).

In Hoyle,

the plaintiff was ostensibly fired for violating a “last chance
agreement” designed to remedy her chronic absenteeism.
at 327–28.

650 F.3d

Despite significant evidence that she was terminated

for repeatedly calling in sick to work, the Fourth Circuit held
that the plaintiff could satisfy her prima facie burden based
upon the temporal proximity between her reporting alleged sexual
harassment and being reassigned and later terminated.
337.

Id. at

The plaintiff’s claim ultimately failed, however, because
23

she produced no evidence that the employer’s proffered reason
for taking the actions was pretext for retaliation.
38.

Id. at 337–

The temporal proximity in this case is even closer; Hughes

was placed on administrative leave eight days after returning
from

FMLA

leave

and

was

terminated

shortly

thereafter.

Therefore, the court concludes that Hughes has satisfied his
prima facie burden on the retaliation claim.
However,

this

presumption

is

rebutted

by

the

record

evidence of a non-retaliatory reason for Hughes’ termination.
As B/E points out, there is ample, uncontroverted evidence in
the

record

showing

that

the

cause

of

Hughes’

termination

predates any decision on his part to take FMLA leave.

Hughes

was aware of the possibility of termination as early as February
22, 2010, when he signed and commented on his calendar year 2009
performance

appraisal.

Helmick

testified

that

she

first

discussed termination in connection with the issuance of the
PIP,

which

appraisal.

was

contemporaneous

with

(Helmick Dep. at 26–27, 45.)

his

2009

performance

Moreover, Hughes was

alerted via memorandum on June 7 – more than two weeks prior to
the beginning of his FMLA leave period – that his performance
was deteriorating and that his scores on various assessments
were below the acceptable level.

Additional evidence of Hughes’

failure to make satisfactory progress on assessments came to

24

light during his FMLA leave, specifically his performance on the
“Engineering Frame Specifications quiz.”
This

evidence

satisfies

B/E’s

burden

of

production,

and

Hughes has produced no evidence that the reason for termination
proffered by B/E was pretext for retaliation.
Helmick

who

initially

suggested,

at

their

Moreover, it was
January

25,

2010,

meeting, that Hughes take a leave of absence to take care of his
health issues.

At that point, Hughes declined.

Performance

issues continued to surface up to and including the period of
Hughes’ FMLA leave, and there is no indication that B/E or any
individual

discouraged

FMLA

leave.

In

short,

there

is

no

evidence in the record that Hughes’ decision to take FMLA leave
was

a

motivating

employment.

factor

in

B/E’s

decision

to

terminate

his

Thus, Defendants’ motions for summary judgment will

be granted on this claim. 15
C.

ADA claims
1.

Without
discrimination

Disability discrimination
direct
is

evidence,

also

Hughes’

evaluated

burden-shifting framework.

under

claim
the

of

disability

McDonnell

Douglas

See Ennis v. Nat’l Ass’n of Bus. &

Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995).
15

To establish

Hughes also names the individual Defendants as defendants on both
FMLA claims, arguing that they each qualify as an “employer” under the
statute.
However, the court need not determine the issue of
individual liability in this case because all of Hughes’ FMLA claims
have been dismissed on the merits.

25

a prima facie wrongful discharge claim under the ADA, Hughes
must

show

that

disability,”

(1)

(2)

he

he

“was

was

a

qualified

terminated,

(3)

individual
he

“was

with

a

fulfilling

[B/E’s] legitimate expectations at the time of discharge,” and
(4) “the circumstances of [his] discharge raise a reasonable
inference of unlawful discrimination.”

Reynolds v. Am. Nat’l

Red Cross, 701 F.3d 143, 150 (4th Cir. 2012) (quoting Rohan v.
Networks
2004)).

Presentations
As

with

the

LLC,

375

FMLA

F.3d

266,

retaliation

273

claim,

n.9
if

(4th

Cir.

Hughes

is

successful, the burden shifts to B/E to articulate a legitimate
non-discriminatory reason for the termination.
at 58.

Ennis, 53 F.3d

If B/E meets this burden, the prima facie presumption

“‘drops out of the picture,’ and [Hughes] bears the ultimate
burden of proving that [he] has been the victim of intentional
discrimination.”

Id. (quoting St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502, 511 (1993)).
B/E argues that Hughes cannot make out a prima facie case
because
Hughes

he
cites

was
no

not

meeting

authority

on

B/E’s
point

legitimate
with

respect

expectations.
to

his

ADA

claim, 16 but claims that B/E originally made its determination

16

The only authority cited in the brief in support of Hughes’ ADA
claim is Norman v. Beasley Mezzanine Holdings, LLC, 826 F. Supp. 2d
875 (E.D.N.C. 2011), an FMLA retaliation case not applicable to any
claim under the ADA. The brief cites no relevant legal authority in
support of Hughes’ ADA claim and is therefore in violation of L.R.
56.1(e). The court could grant B/E’s motion on this ground alone but
will address the merits of Hughes’ claims.

26

that he was not performing at a satisfactory level while he was
suffering

from

a

disability,

then

did

not

give

him

an

opportunity to perform his job upon his return from FMLA leave.
The court need not determine whether Hughes was disabled
under the ADA, because it is undisputed that he was not meeting
B/E’s

legitimate

During

his

received

a

expectations

two-and-a-half
performance

expectations” level.

at

years

the

time

employed

evaluation

at

or

of
at

his

discharge.

B/E,

above

he

the

never
“meets

His 2009 evaluation, which resulted in the

issuance of the PIP, was below the “needs further development”
threshold.

Furthermore, Hughes admitted in his comments on his

performance appraisal, as well as at his deposition, that he was
performing at a substandard level.

He admitted that he had

provided inaccurate RFQ estimates (Hughes Dep. at 239) and that
he failed to complete the requirements of the PIP.

Critically,

he was rated a 1 out of 4 on his 2009 performance appraisal in
the category of “Job Knowledge,” and Dowty commented that some
of his noted deficiencies were (1) “[h]is unfamiliarity and lack
of proficiency with the Boeing and Airbus frame specifications
as they relate to aircraft interior design,” and (2) “[b]asic
certification requirements of seating,” among others.
16

at

3.)

There

was

no

evidence

that

Hughes’

(Doc. 37–
performance

improved once he returned from FMLA leave; rather, more evidence
of substandard performance surfaced, and Hughes did not complete
27

the requirements of the PIP.

Therefore, no reasonable juror

could find that Hughes was meeting B/E’s legitimate expectations
when he was placed on administrative leave and later terminated.
Because

Hughes

cannot

establish

a

prima

facie

case,

his

disability discrimination claim fails.
2.

Failure to accommodate

Hughes also argues that B/E violated the ADA by failing to
grant him an accommodation.
make

“reasonable

demonstrate

that

The ADA requires an employer to

accommodations”
such

unless

accommodation

the

“would

employer

impose

hardship on the operation of the business . . . .”
§ 12112(b)(5).
failure

to

an

can
undue

42 U.S.C.

In order to establish a prima facie claim for

accommodate,

Hughes

must

show

that

(1)

he

had

a

disability under the meaning of the ADA, (2) B/E had notice of
his

condition,

(3)

“with

reasonable

accommodation

he

could

perform the essential functions of the position”; and (4) B/E
refused to make the reasonable accommodation.

Wilson v. Dollar

Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013) (quoting Rhodes v.
FDIC, 257 F.3d 373, 387 n.11 (4th Cir. 2001)).
The court will assume, without deciding, that the first two
elements of the claim have been established.

B/E does not argue

that

party

Hughes

was

not

disabled,

and

neither

has

briefed

whether, in Hughes’ case, hypoxia or sleep apnea would qualify
as a disability under the ADA.

There is no dispute that B/E had
28

notice of Hughes’ condition.

In any event, Hughes’ claim fails

because he has not produced sufficient evidence regarding either
of the final two elements.
Hughes “bears the burden of identifying an accommodation
that would allow a qualified individual to perform the job, as
well

as

the

ultimate

burden

of

persuasion

with

respect

demonstrating that such an accommodation is reasonable.”

to

Shin

v. Univ. of Md. Med. Sys. Corp., 369 F. App’x 472, 481 (4th Cir.
2010) (citing Halperin v. Abacus Tech. Corp., 128 F.3d 191, 197
(4th

Cir.

1997)).

Hughes

requested

only

one

accommodation

throughout the entire relevant period:

he asked that his job be

restructured

for

and

that

responsibility

three

product lines be transferred to his coworkers.

of

his

four

Dowty denied

Hughes’ request because it would unduly burden the other members
of his group.
In Crabill v. Charlotte Mecklenburg Board of Education, 423
F. App’x 314, 323 (4th Cir. 2011), the Fourth Circuit held that
an

accommodation

that

would

shift

the

plaintiff’s

duties

to

other workers in the plaintiff’s department, thereby increasing
the coworkers’ workloads, is unreasonable.
the

ADA

does

not

require

“permanent light duty.”

an

employer

to

The court noted that
assign

an

employee

Id. (quoting Carter v. Tisch, 822 F.2d

465, 467 (4th Cir. 1987)) (applying the Rehabilitation Act of
1973, 29 U.S.C. § 701 et seq.)); accord Mason v. Avaya Commc’ns,
29

Inc.,

357

F.3d

1114,

1121

n.3

(10th

Cir.

2004)

(“[A]n

accommodation that would require other employees to work harder
is unreasonable.”); Rehrs v. Iams Co., 486 F.3d 353, 357 (8th
Cir. 2007) (“Under the ADA, an accommodation that would cause
other

employees

opportunities

to

is

work

harder,

not

longer,

mandated.”);

or

see

be

deprived

also

29

of

C.F.R.

§ 1630.2(p)(2)(v) (one factor to consider in determining whether
granting an accommodation would create undue hardship on the
employer is “the impact on the ability of other employees to
perform their duties and the impact on the facility's ability to
conduct business”).

Because there were only four employees

performing Hughes’ job function (Hughes Dep. at 89), the effect
of

reallocating

three

of

Hughes’

four

coworkers would have been pronounced. 17

product

lines

to

his

Such an accommodation

would have significantly added to the job responsibilities of
the

other

workers

in

the

seating

products

group.

It

is

therefore not required by the ADA.
Furthermore,

Hughes

has

not

produced

sufficient

evidence

for a reasonable juror to conclude that he would have been able
to perform his job even with the requested accommodation.
record

evidence

acceptable

levels

shows
on

that
three

Hughes
out

17

of

was

unable

five

to

The

score

examinations

at

given

Dowty stated that there was only one other engineer in the seating
products group, and the other engineer was responsible for eleven
product lines. (Doc. 37–6 ¶¶ 5–6.)

30

pursuant

to

illustrated

the
a

PIP.

lack

According

of

to

understanding

Dowty,

of

the

required to perform his job effectively.

the

basic

results
concepts

Hughes possessed no

experience in the aerospace industry prior to coming to B/E, a
fact he readily admits.

Significantly, Hughes failed to score

at the “meets expectations” level on any job evaluation while
employed

at

B/E,

including

evaluations

by

Hastings

before Hughes began experiencing any symptoms.

and

Kash

Therefore, the

court concludes that, as a separate and independent ground for
the decision, Hughes has not demonstrated that he could perform
the

essential

functions

of

the

job

with

a

reasonable

accommodation.

Having failed to satisfy either the third or the

fourth

of

element

his

failure

to

accommodate

claim,

Hughes’

claim cannot survive summary judgment.
D.
In

ADEA and North Carolina public policy claims
order

to

establish

a

prima

facie

case

of

age

discrimination in a discharge case under the ADEA, Hughes must
show

that

he

was

(1)

a

member

of

the

protected

class,

(2)

qualified for the position and meeting the employer’s legitimate
expectations,
performance,

(3)
and

terminated
(4)

despite

replaced

by

his

someone

qualifications outside the protected class.
162

F.3d

795,

802

(4th

Cir.

1998).

The

framework applies in this context as well.
31

qualifications
with

and

comparable

Causey v. Balog,
McDonnell

Douglas

See Rowe v. Marley

Co., 233 F.3d 825, 829 (4th Cir. 2000).

If Hughes is successful

in

B/E

proving

a

prima

facie

case,

then

must

articulate

legitimate, non-discriminatory reason for the termination.

a

Id.

Hughes retains the ultimate burden to prove that B/E’s proffered
reason
Id.

was

actually

pretext

for

unlawful

age

discrimination.

He must prove that his age was the but-for cause of his

termination.

Gross,

557

U.S.

at

180.

The

North

Carolina

courts, construing the state public policy announced in N.C.
Gen. Stat. § 143-422.2, have held that this framework applies in
cases brought under state law as well.

See N.C. Dep’t of Corr.

v. Gibson, 301 S.E.2d 78, 82–83 (N.C. 1983).
For the reasons discussed above, see supra Part II.C.1.,
Hughes cannot establish a prima facie case of age discrimination
because the undisputed evidence in the record shows that he was
not

performing

expectations.

at

a

level

consistent

with

B/E’s

legitimate

Therefore, the court will grant B/E’s motion for

summary judgment on the age discrimination claims on this basis.
Furthermore, even if Hughes were able to make a prima facie
showing, his claim would fail because he has not produced any
evidence from which a reasonable jury could infer that B/E’s
explanation was actually pretext for age discrimination.

The

only evidence in the record concerning this issue is that B/E’s
job posting sought somebody who was an “energetic, self-starter”
for a position in the seating products group, and that the two
32

people hired in the period following Hughes’ termination appear
to

have

been

outside

of

the

protected

class. 18

Contrary

to

Hughes’ assertions, “energetic” is not a synonym for “young,”
nor

does

it

necessarily

imply

youth.

According

to

Merriam-

Webster’s dictionary, “energetic” means “operating with force,
vigor, or effect.”
at 751 (1986).

Webster’s Third New International Dictionary

And according to Roget’s Thesaurus, “young” is

not listed among 40 possible synonyms for “energetic,” which
include “active,” “enterprising,” “lively,” and “industrious.”
See

Energetic

Entry,

http://thesaurus.com/browse/energetic
2014).

(last

Thesaurus.com,
visited

Mar.

7,

As Hughes concedes, persons of any age may act in an

energetic or lethargic manner.

(Hughes Dep. at 128–29.)

There

is no evidence in the record that any of Hughes’ supervisors
attributed his performance issues to his age or considered age
at all in the decision to terminate him or to hire Bennett and
Phillips.

Therefore, a reasonable jury could not conclude that

B/E’s proffered explanation for Hughes’ termination was pretext
for age discrimination, and B/E’s motion for summary judgment
will be granted.
E.

Defendants’ request for attorneys’ fees and costs

At the end of their briefs, Defendants request an award of

18

The ADEA protects employees who are at least 40 years of age.
U.S.C. § 631(a).

33

29

attorneys’

fees

and

costs,

citation to authority.

albeit

without

any

argument

(Doc. 34 at 20; Doc. 36 at 10.)

or

Under

the ADA, the court may, in its discretion, award attorneys’ fees
and costs to a prevailing party other than the United States.
42 U.S.C. § 12205.

The other statutes allow a court to award

attorneys’ fees and costs to prevailing plaintiffs only.

See 29

U.S.C. §§ 626(b), 216(b) (ADEA); 29 U.S.C. § 2617(a)(3) (FMLA).
Federal Rule of Civil Procedure 54(d)(1) provides that “[u]nless
a

federal

otherwise,

statute,

these

rules,

costs

other

than

--

or

a

court

attorney's

order

fees

--

provides
should

be

allowed to the prevailing party.”
Defendants have made no showing that they are entitled to
attorneys’

fees

under

the

ADA.

A

district

court

may

award

attorneys’ fees to a prevailing defendant upon a finding that
the plaintiff’s action was “frivolous, unreasonable, or without
foundation.”

See

Davis

v.

Balt.

Hebrew

Congregation,

__

F.

Supp. 2d __, 2013 WL 6206993, at *12 (D. Md. Nov. 27, 2013)
(citing Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421
(1978) (Title VII) and Brown v. Lucky Stores, Inc., 246 F.3d
1182, 1190 (9th Cir. 2001) (ADEA)).
were

unsuccessful,

the

court

cannot

frivolous as a matter of law.

Here, while Hughes’ claims
conclude

that

they

were

Therefore, Defendants’ request

for an award of attorneys’ fees will be denied.

34

However,
costs,

other

Rule

54(d)

than

prevailing party.

creates

attorneys’

a

fees,

general
should

presumption

be

awarded

that

to

the

See Cherry v. Champion Int’l Corp., 186 F.3d

442, 446 (4th Cir. 1999).

Unless a federal statute provides

otherwise, “[c]osts may be denied to the prevailing party only
when there would be an element of injustice in a presumptive
cost

award.”

statutes,

Id.

some

Despite

courts

have

fee-shifting

allowed

provisions

prevailing

recover costs in FMLA and ADEA cases.

in

defendants

the
to

See, e.g., Billings v.

Cape Cod Child Dev. Program, 270 F. Supp. 2d 175, 177–78 (D.
Mass. 2003) (concluding that FMLA’s fee-shifting provision does
not displace Rule 54(d)’s general presumption); Herold v. Hajoca
Corp.,

682

F.

Supp.

297,

301

(W.D.

Va.

1988)

(prevailing

defendants in ADEA cases “may recover only those costs set forth
in 28 U.S.C. § 1920”).

The court concludes that a presumptive

award would not be unjust here and that Defendants may therefore
file a bill of costs pursuant to Local Rule 54.1 to recover
costs allowable under 28 U.S.C. § 1920.
III. CONCLUSION
For the reasons stated, the court concludes that Hughes has
not

produced

summary

sufficient

judgment

on

his

evidence
FMLA,

to

ADA,

public policy claims.

35

overcome
ADEA,

and

a

motion

North

for

Carolina

IT

IS

THEREFORE

ORDERED

that

the

motions

for

summary

judgment by B/E (Doc. 33) and the individual Defendants (Doc.
35) are GRANTED and that the case is DISMISSED WITH PREJUDICE.
Costs shall be awarded to Defendants.

/s/
Thomas D. Schroeder
United States District Judge
March 7, 2014

36