GRAVES v. BANK OF AMERICA CORPORATION
Filing
41
MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 9/22/2014; that Bank of America's motion for summary judgment (Doc. 25 ) be GRANTED. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
VERONICA GRAVES,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
BANK OF AMERICA, N.A.,
Defendant.
1:13cv663
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
In
this
employment
action,
Plaintiff
Veronica
Graves
alleges discrimination and retaliation in violation of both the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12111 et
seq., and the North Carolina Equal Employment Practices Act,
N.C.
Gen.
Stat.
§
143-422.1
et
seq.
Defendant’s motion for summary judgment.
is fully briefed and ready for decision.
Before
the
(Doc. 25.)
court
is
The motion
For the reasons set
forth below, the motion will be granted and the case dismissed.
I.
BACKGROUND
The undisputed facts, viewed in the light most favorable to
Graves, as the non-moving party, are as follows: 1
1
Throughout her briefing, Graves frequently fails to provide citation
to any evidence in the record for key assertions. (See e.g. Doc. 28
at 2, 3, 5, 6, 8.)
This practice violates Local Rule 7.2(a)(2)
(providing that “[e]ach statement of fact should be supported by
reference to a part of the official record”) and renders her position
subject to rejection on this basis alone.
The court need not, and
will not, scour the record for support for a party’s position.
See
Graves
began
working
customer
service
and
center.
for
sales
(Doc. 26-1 at 4.)
Bank
of
America
specialist
at
a
in
2007
as
Greensboro
a
call
There, she responded to telephone
calls, emails, and text messages from Bank of America customers.
(Id. at 6.)
In 2009, Graves began seeking medical attention for stress,
anxiety, and depression and was prescribed medication.
28-1 at 12, 15, 19.)
(Doc.
She was placed on medical leave in the
spring of 2011 and returned to work in May 2011, at which time
she requested a reduction in her work schedule from eight hours
a
day
to
four-to-six
hours
a
day,
per
her
doctor’s
orders.
(Doc. 26-1 at 41, 43, 49; Doc. 28-3 at 2.)
Although the bank
inquired
condition,
about
the
nature
of
her
medical
refused to provide that information. 2
Graves
(Doc. 26-1 at 41–42.)
Bank of America nevertheless approved her request in June 2011.
(Id. at 41, 43.)
At some unspecified point thereafter during
the summer of 2011, Graves was asked to participate in a “shift
bid”
that
scheduler
involved
“a
an
chance
eight-hour
to
work
schedule,
on
but
getting
she
the
gave
the
schedule
accommodated,” which was resolved sometime in August 2011.
(Id.
Hughes v. B/E Aerospace, Inc., No. 1:12CV717, 2014 WL 906220, at *1
n.1 (M.D.N.C. Mar. 7, 2014).
2 Graves does believe that two coworkers – Juwanna Jessup and Kristen
McKellar – knew that she had experienced stress, anxiety, and
depression. (Doc. 28-1 at 15.)
2
at 42–45.)
Graves remained on an abbreviated schedule, as she
requested, from August 2011 until her doctor released her to
return to work full-time in January 2012.
Following
several
her
charges
of
return
to
work
discrimination
Opportunity Commission (“EEOC”).
(Id. at 43, 44.)
full-time,
with
the
Graves
Equal
filed
Employment
Her first charge was filed on
February 13, 2012, although its basis is not in the record. 3
(Id. at 57–58; Doc. 6 ¶ 6.)
Unable to find a violation, the
EEOC issued its right to sue letter on March 26, 2012.
28-1 at 3.)
Sometime in March 2012, Graves took another leave
of absence and returned to work in around April 2012.
3 at 2.)
(Doc.
(Doc. 28-
She filed another charge on May 29, 2012, alleging
disability discrimination and retaliation in violation of the
ADA.
(Id. at 2.)
This charge included her alleged failure to
be accommodated from “[o]n or around the month of May 2011 . . .
until the month of August 2011.”
(Id.)
On November 30, 2012,
the EEOC responded that it could not establish any violation but
provided Graves with a notice of her right to sue.
(Id. at 4.)
According to Graves, only one Bank of America employee – Ebony
Norway, as to which there is no evidence she was a decisionmaker
- told her that they knew about her EEOC charges, but the EEOC
had told Graves that her managers would learn of the charges.
3
Graves testified at her deposition that she filed an EEOC charge in
February 2012 but has not provided a copy or any explanation of its
basis.
(Doc. 26-1 at 57-58.)
The bank admits that she filed the
charge on February 13, 2012. (Doc. 6 ¶ 6.)
3
(Doc. 26-1 at 53–54.)
In November 2012, Graves’ immediate supervisor — Tomekia
Friday — notified Bank of America’s Fraud Investigations Group
(“Fraud Investigations”) that she observed suspicious computer
system
(Doc.
screen-prints
26-2
¶¶ 2–4.)
sent
In
from
her
Graves’
position
work
email
a
customer
as
account.
service
associate, Graves had access to the bank’s confidential customer
information, including account numbers, telephone numbers, and
addresses.
(Doc. 26-1 at 6–8.)
Bank of America’s Code of
Ethics Policy, of which Graves was aware and on which she had
been
trained,
directed
employees
not
to
“access
customer
information or use customer information except for appropriate
business purposes.”
(Id. at 15–16, 74.)
Based on Friday’s alert, Bank of America’s Cyber Forensics
Department reviewed email sent from Graves’ work account.
26-2 ¶ 5.)
(Doc.
The Cyber Forensics Department discovered that “[a]
number of emails that Ms. Graves forwarded to her personal email
account
contained
customer
names,
customer
account
sensitive
numbers,
and
information,
addresses.”
including
(Id.)
On
December 6, 2012, Patrick Williams, an investigator with Fraud
Investigations, met with Graves and informed her of the results
of the Cyber Forensics Department’s review.
25–26; Id. ¶ 7.)
(Doc. 26-1 at 19,
Graves admitted to forwarding confidential
4
customer information from her work email account to her personal
(Doc. 26-1 at 21; Doc. 26-2 ¶ 8.) 4
email account.
Given Graves’ admission, Williams instructed her to delete
all emails containing customer information and any hard copies
of those emails.
(Doc. 26-2 ¶ 10.)
In accordance with the
bank’s procedures, Williams also asked that Graves provide a
written
statement
of
her
actions
and
execute
confirming deletion of the forwarded emails.
84; Doc. 26-2 ¶ 11.)
an
affidavit
(Doc. 26-1 at 83–
The bank’s Code of Ethics Policy required
employees “to cooperate with all internal investigations into
violations of Bank of America’s Code of Ethics Policy.”
26-1 at 14, 73.)
(Doc.
Graves responded that she would delete all
emails and hard copies.
(Id. at 25–27; Doc. 26-2 ¶ 12.)
refused, however, to sign the affidavit.
She
(Doc. 26-1 at 27.)
On December 12, 2012, Williams followed up with Graves,
requesting that she sign the affidavit.
(Id. at 28–29, 87.)
He
informed her that mere verbal confirmation that she had deleted
all the emails and hard copies was insufficient and that she had
until December 17, 2012, to sign the affidavit.
86-87.)
29, 86.)
(Id. at 29–30,
Again, Graves refused to sign the affidavit.
(Id. at
Williams followed up with Graves on December 18, 2012.
(Id. at 30, 85.)
Yet again, Graves refused to sign.
4
(Id.)
Graves argues that she sent the emails in order to “protect herself
from undue harassment by her supervisor” and claims that her
supervisor knew of the activity, but her record citation (where
provided) does not support this claim. (Doc. 28 at 2.)
5
After
this
third
refusal,
Resources Advisor Ashley Oates.
¶ 6.)
Williams
informed
Oates
Williams
spoke
Human
(Doc. 26-2 ¶ 16; Doc. 26-3
of
the
situation,
requested that Williams contact Graves again.
Doc. 26-3 ¶ 7.)
with
and
Oates
(Doc. 26-2 ¶ 17;
Consistent with Oates’ request, Williams asked
Graves to sign the affidavit and informed her that failure to do
so could result in her termination.
26-2 ¶ 18.)
(Doc. 26-1 at 31-33; Doc.
This accords with Bank of America’s Code of Ethics
Policy that states that a violation is grounds for termination.
(Doc. 26-1 at 14–15, 69.)
With both Charles Bridges (supervisor
to Friday, Graves’ immediate supervisor) and Williams present,
Graves refused to sign the affidavit.
(Id. at 31–33; Doc. 26-2
¶ 18–19.)
On
January
regarding Graves.
told
Oates
affidavit.
and
(Id.)
3,
2013,
Williams,
Oates,
and
Bridges
(Doc. 26-2 ¶ 20; Doc. 26-3 ¶ 8.)
Bridges
that
Graves
refused
to
met
Williams
execute
the
Based on this information, Oates recommended
that Graves be terminated.
(Doc. 26-3 ¶ 9.)
That same day,
Bridges met with Graves and advised her that her employment was
terminated for a violation of the bank’s Code of Ethics.
(Doc.
26-1 at 17–19; Doc. 26-3 ¶ 10.)
After her termination, Graves filed a third EEOC charge on
6
February 26, 2013. 5
(Doc. 28-3 at 5–6.)
In it, she claimed that
she was terminated as a result of disability discrimination and
retaliation.
continued
to
(Id. at 5.)
possess
As recently as February 2014, Graves
hard
copies
of
emails
containing
confidential Bank of America customer information.
(Doc. 26-1
at 36–37.)
On
July
23,
2013,
Graves
filed
the
present
complaint
alleging disability discrimination and retaliation under the ADA
as well as violations of North Carolina public policy. 6
Graves
alleges that Bank of America discriminated against her because
of her disability by wrongfully discharging her and by denying
reasonable accommodation of her work schedule.
(Compl. ¶ 12.)
She further alleges that Bank of America retaliated against her
for filing charges with the EEOC.
(Id. ¶¶ 13, 17.)
Finally,
she claims the bank’s actions violated North Carolina’s public
policy against disability discrimination and retaliation.
(Id.
¶ 19.) 7
5
In her testimony, Graves claims she also filed a fourth EEOC charge
prior to February 2012.
(Doc. 26-1 at 57–58.)
No evidence of this
charge appears in the record, however.
6
Graves’ complaint also states a separate “claim” for punitive
damages.
(Compl. ¶¶ 22–24.)
A request for punitive damages is of
course not a claim, but because Graves fails to raise a genuine
dispute of material fact as to any of her claims, the request is moot.
7
Graves’ complaint makes passing reference to a hostile work
environment.
(Doc. 3 ¶¶ 6–7 (“hostile work environment”), 15
(“hostile treatment”), 20–21 (“hostile atmosphere” and “hostile
environment”).)
However, the complaint only states claims for
7
After discovery, Bank of America filed the present motion
for summary judgment.
(Docs. 25.)
With Graves’ response (Docs.
28) and Bank of America’s reply (Doc. 29), the motion is ready
for consideration.
II.
ANALYSIS
A.
Standard of Review
A court must grant a motion for 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.
Where, as here, the non-moving party has the burden of proof,
the
moving
party
is
entitled
to
summary
judgment
if
it
demonstrates the absence of material disputed facts.
Celotex
Corp. v. Catrett, 477 U.S. 317, 322–23, 325 (1986).
For the
purposes of this motion, the court regards Graves’ statements as
true and draws all inferences in her favor.
Lobby, Inc., 477 U.S. 242, 255 (1986).
Anderson v. Liberty
But, she must establish
disability discrimination and retaliation under the ADA. The parties
have not addressed, nor does the court construe the complaint as
raising, a hostile work environment claim under Title VII, much less a
plausible one. See Coleman v. Md. Court of Appeals, 626 F.3d 187, 190
(4th Cir. 2010) (complaint must state a plausible claim for relief
that permits the court to infer more than the mere possibility of
misconduct); Erickson v. Pardus, 551 U.S. 89, 93 (2007) (“Specific
facts are not necessary” in a complaint, but the complaint must at
least “‘give the defendant fair notice of what the . . . claim is and
the grounds upon which it rests.’”) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)).
8
more than the “mere existence of a scintilla of evidence” to
support her position.
Id. at 252.
If the evidence is “merely
colorable, or is not significantly probative, summary judgment
may be granted.”
Id. at 249-50.
Ultimately, summary judgment
is appropriate where the non-movant fails to offer evidence on
which the factfinder could reasonably find for her.
B.
Id. at 252.
ADA: Discrimination Claim
Graves alleges that Bank of America failed to accommodate
her
disability
and
(Doc. 3 ¶ 12.)
wrongfully
terminated
her
because
of
it.
Each claim is addressed below.
1.
Wrongful discharge
The ADA prohibits an employer from terminating a qualified
employee because of her disability.
42 U.S.C. § 12112(a).
To
survive a motion for summary judgment, the employee must produce
evidence sufficient for a factfinder to conclude that (1) she
“was a qualified individual with a disability”; (2) she “was
discharged”; (3) she “was fulfilling [her] employer’s legitimate
expectations
at
the
time
of
discharge”;
and
(4)
“the
circumstances of [her] discharge raise a reasonable inference of
unlawful discrimination.”
F.3d
143,
150
Presentations
(4th
LLC,
Reynolds v. Am. Nat’l. Red Cross, 701
Cir.
375
2012)
F.3d
266,
(quoting
273
n.9
Rohan
v.
(4th
Cir.
Networks
2004)).
Failure to support any element will doom a claim on summary
judgment.
Id.
Here,
even
assuming
9
(without
deciding)
that
Graves was disabled, she has failed to produce evidence that she
was meeting Bank of America’s legitimate expectations or that
the
circumstances
allow
for
a
reasonable
inference
of
discrimination.
Bank
of
employees
America’s
from
Code
“access[ing]
of
Ethics
customer
Policy
information
prohibited
or
us[ing]
customer information except for appropriate business purposes.”
(Doc.
26-1
at
acknowledges
74.)
that
Graves
it
was
prohibited
aware
her
of
this
from
policy
sending
and
emails
containing confidential customer information from her work email
account to her personal email account.
38.)
(Id. at 14–15, 18–19,
She also admits that she violated the policy.
(Id. at 21;
Doc. 26-2 ¶ 8.)
As to the former, Bank of America’s Code of Ethics Policy
warns that a violation could lead to termination, and Graves was
aware of this.
terminated,
because
(Doc. 26-1 at 14–15, 32–33.)
Graves
she
had
was
advised
violated
the
and
When she was
understood
policy.
(Id.
that
17–19,
it
was
45–46
(acknowledging “they terminated me on the basis of the Code of
Ethics”).)
Thus, her sending of the emails to her personal
account was a sufficient basis for termination under the policy.
Graves
contends
now
that
she
was
saving
the
emails
protect herself from undue harassment by her supervisor.”
28 at 2.)
“to
(Doc.
This assertion is not only unsupported by the present
10
record but, even if true, would not undermine the bank’s ability
to expect compliance with the policy.
Graves has not shown that
Bank of America’s policy is not legitimate.
See Warch v. Ohio
Cas. Ins. Co., 435 F.3d 510, 518 (4th Cir. 2006) (concluding
that plaintiff failed to show that his employer’s expectations
“were somehow not ‘legitimate’”).
ulterior
motives
is
not
That Graves may have harbored
important.
Rather,
“[i]t
perception of the decision maker which is relevant.”
is
the
Smith v.
Flax, 618 F.2d 1062, 1067 (4th Cir. 1980).
Further, Graves argues that it was reasonable for her to
refuse to sign the bank’s affidavit because of its text.
28 at 3.)
This argument fails, too.
(Doc.
Factually, Graves cites
only to the draft affidavit itself, and not to any testimony, to
support the claim. 8
point.
(See id.)
Moreover, her argument misses the
The undisputed facts show that the bank’s Code of Ethics
Policy warned that her violation was grounds for dismissal.
noted,
her
conduct
constituted
a
violation.
The
bank
As
also
warned that it expected Graves to cooperate in the investigation
and sign the affidavit that confirmed destruction of the emails.
(See Doc. 26-1 at 14, 73.)
policy
and
employer’s
failing
to
legitimate
In either event, by violating the
cooperate,
Graves
expectations.
8
failed
to
Consequently,
meet
her
Graves’
Graves does attach copies of some emails in which she objects to
signing the affidavit, which the court has reviewed.
11
failure
to
establish
that
she
was
performing
her
job
at
a
satisfactory level dooms her prima facie case of discrimination
under the ADA.
See Jones v. Dole Food Co., 827 F. Supp. 2d 532,
547 (W.D.N.C. 2011) (“When an employee is aware of an employer’s
policy and violates it, he has not met the employer’s legitimate
expectations.”).
Graves
also
fails
to
provide
circumstances
that
would
support a reasonable inference of disability discrimination in
her
discharge.
claimed
April
Bank
disability
2012
termination.
deposition
–
–
was
America’s
Graves’
resolved
(Doc.
that
of
28-3
even
she
at
last
leave
of
some
eight
2.)
does
absence
not
from
months
Graves
of
before
that
her
March
testified
believe
terminated her because of her disability.
don’t believe that.”).) 9
accommodation
in
the
to
her
her
bank
(Doc. 26-1 at 46 (“I
And, even if she could establish such
circumstances, she cannot demonstrate that the bank’s proffered
reason – Graves’ violation of the Code of Ethics policy – was
pretextual.
See Ennis v. Nat’l Ass’n of Business & Edu. Radio,
9
Graves testified:
Q:
So what is the basis for your belief that Bank of America
terminated you on January 3, 2013, because of your
disability?
A:
What is the basis that I – I don’t believe that.
Q:
So what do you believe?
A:
As far as what? That they terminated me on the basis of the
Code of Ethics.
(Id.)
She also testified, “I’m not saying that they treated me
different because of a disability. I don’t know if they knew anything
about that.” (Id. at 50.)
12
Inc., 53 F.3d 55, 58 (4th Cir. 1995).
failure
to
shifting
meet
her
approach,
evidence
to
prima
Graves
raise
a
facie
has
Thus, whether viewed as a
case,
failed
reasonable
or
to
under
the
elicit
inference
burden
sufficient
of
unlawful
discrimination.
Therefore, Bank of America’s motion for summary judgment as
to Graves’ claim of wrongful discharge under the ADA will be
granted.
2.
The
ADA
Failure to accommodate
also
obligates
employers
to
provide
“reasonable
accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability who is an . . .
employee.”
42
U.S.C.
§ 12112(b)(5)(A)
(defining
the
phrase
“discrimination against a qualified individual on the basis of
disability” under 42 U.S.C. § 12112(a)).
Here, Graves claims
that Bank of America refused to reasonably accommodate her need
for a reduced work schedule in May 2011.
1 at 41; Doc. 28-3 at 2.)
(Compl. ¶ 12; Doc. 26-
Bank of America contends the claim is
time-barred and fails on the merits.
Graves does not respond
directly to either argument.
An employee alleging a claim under the ADA must file a
charge with the EEOC “within one hundred and eighty days after
the alleged unlawful employment practice occurred.”
42 U.S.C.
§ 12117(a); 42 U.S.C. § 2000e-5(e)(1); see also J.S. ex rel.
13
Duck v. Isle of Wight Cnty. Sch. Bd., 402 F.3d 468, 475 n.12
(4th Cir. 2005).
reasonable
Graves claims that Bank of America denied her
accommodation
beginning
in
May
2011,
but
she
testified that the bank agreed to accommodate her in June 2011
and then asked her to participate in a “shift bid” involving
eight-hour shifts sometime between June 2011 and August 2011.
(Compl. ¶ 12; Doc. 26-1 at 41, 43–45.)
She does not complain of
any failure to accommodate thereafter.
Graves’
earliest
EEOC
charge
was
filed
on
February
2012, although the record fails to reflect its basis.
1 at 57–58; Doc. 6 ¶ 6.)
13,
(Doc. 26-
While Graves filed a later charge on
May 29, 2012, alleging disability discrimination and failure to
accommodate (Doc. 28-3 at 2), neither charge was timely as to
the
alleged
May
2011
denial,
even
if
the
earlier
charge
is
assumed to have properly raised a failure to accommodate claim.
Thus, that claim is time-barred.
As to the alleged denial of reasonable accommodation that
allegedly occurred as a result of the “shift bid” request, the
record fails to reflect any dates other than the request was
made
sometime
between
June
2011
and
until
August
2011.
Therefore, it is difficult to determine whether her EEOC charges
were timely based on that occurrence, assuming again that her
earlier charge properly raised a failure to accommodate claim.
See Johnson v. Glickman, 155 F. Supp. 2d 1240, 1246 (D. Kan.
14
2001)
failed
(“[D]efendant
to
timely
bears
comply
the
with
burden
to
show
administrative
that
plaintiff
prerequisites.”);
but cf. Darden v. Cardinal Travel Ctr., 493 F. Supp. 2d 773, 776
(W.D. Va. 2007) (“Although the Fourth Circuit has not ruled on
which party holds the burden of establishing the timeliness of
Title
burden
VII
of
cases,
. . .
establishing
I
find
the
that
the
timeliness
of
plaintiff
the
bears
filing
complaint where it is contested by the defendant.”).
of
the
her
However,
the May 2012 charge’s statement that the failure to accommodate
occurred “until the month of August 2011” suggests strongly that
the claim is time-barred.
(Doc. 28-3 at 2.)
In any event, a plaintiff must file a claim within ninety
days of receiving her right to sue letter.
42 U.S.C. § 2000e-
5(f)(1); see also Davis v. Va. Commonwealth Univ., 180 F.3d 626,
628 n.3 (4th Cir. 1999) (“Upon [EEOC] notification, i.e. a right
to sue letter, the aggrieved party has 90 days to file suit.”).
In this case, the evidence, viewed most favorably to Graves, is
that she received her right to sue letters pertaining to her
failure to accommodate claim on March 26, 2012, and November 30,
2012. 10
(Doc. 28-3 at 3–4.)
She filed this lawsuit on July 23,
10
Graves’ February 2013 charge (Doc. 28-3 at 5), which was timely
filed within ninety days of her termination, alleges no failure to
accommodate by Bank of America.
See Chacko v. Patuxent Inst., 429
F.3d 505, 509 (4th Cir. 2005) (“[I]f the factual foundation in the
administrative charge is too vague to support a claim that is later
presented in subsequent litigation, that claim will also be
15
2013.
(Doc. 1.)
Thus, under either scenario, her failure to
accommodate claims are time-barred.
Even if the claims were somehow timely, however, Graves has
failed
to
establish
accommodate
under
a
the
prima
ADA.
facie
To
case
avoid
for
failure
summary
to
judgment,
a
plaintiff must point to evidence sufficient for a factfinder to
determine
that
(1)
she
was
an
individual
with
a
disability
within the meaning of the statute; (2) her employer had notice
of her disability; (3) she could perform the essential functions
of her job with reasonable accommodation; and (4) her employer
refused
to
make
such
accommodations.
Wilson
Corp., 717 F.3d 337, 345 (4th Cir. 2013).
simply
fails
to
support
Graves’
claim
that
v.
Dollar
Gen.
Here, the record
Bank
of
America
failed to accommodate her requests. 11
Graves concedes that the bank granted her requests for a
leave of absence and for a reduced work schedule.
42–45, 49.)
temporary
(Doc. 26-1 at
In her brief to this court, she describes the
work
(Doc. 28 at 4.)
restrictions
implemented
as
“quite
workable.”
The only wrinkles seem to be that it took the
procedurally barred.”). That charge, therefore, does not preserve her
failure to accommodate claim.
11
It appears doubtful that Bank of America had notice of Graves’
disability. Graves herself states: “I’m not saying that they treated
me different because of a disability. I don’t know if they knew
anything about that.”
(Doc. 26-1 at 50.)
She also declined to
provide Bank of America with the medical reason for her requested
reduced work schedule. (Id. at 41–42.)
16
bank approximately a couple of weeks to decide whether to grant
the request and that thereafter (sometime during the summer of
2011) she was asked to participate in a “shift bid” for a full
schedule.
But these facts do not save her claim.
Graves
America
concedes
the
that
nature
of
predicated her request.
what my illness was.
information.”).)
of
her
her
had
refused
claimed
to
illness
tell
upon
Bank
which
of
she
(Id. at 41-42 (“They wanted to know
And I wasn’t willing to give them that
She was obligated, however, to inform the bank
disability
accommodate it.
she
so
it
could
assess
whether
and
how
to
See Schneider v. Giant of Md., LLC, 389 F.
App’x 263, 270 (4th Cir. 2010) (citing EEOC v. Fed. Express
Corp., 513 F.3d 360, 369 (4th Cir. 2008)) (observing that the
employee must “inform the employer of both the disability and
the employee’s need for accommodations for that disability.”). 12
As
to
the
request
to
participate
in
the
shift
bid,
Graves
herself testified that she gave her scheduler “a chance to work
on getting the schedule accommodated,” which was resolved in
August 2011.
(Doc. 26-1 at 42–45.)
Thereafter, Graves was
placed
shorter
she
on
the
hourly
schedule
12
desired
until
her
Unpublished opinions of the Fourth Circuit are not precedential but
are cited for their persuasive reasoning.
See Collins v. Pond Creek
Mining Co., 468 F.3d 213, 219 (4th Cir. 2006) (recognizing that “we
ordinarily do not accord precedential value to our unpublished
decisions” and that such decisions “are entitled only to the weight
they generate by the persuasiveness of their reasoning” (citation
omitted)).
17
doctor cleared her for full-time duty in January 2012.
44–45.)
(Id. at
Graves has not demonstrated why the bank’s request for
information and any de minimis delay was unreasonable under the
circumstances.
of
showing
reasonable
Therefore, Graves has failed to meet her burden
that
Bank
of
accommodation,
America
and
failed
the
to
bank’s
provide
motion
her
for
with
summary
judgment on this claim will be granted. 13
C.
ADA: Retaliation Claim
Graves also alleges that Bank of America terminated her in
retaliation for filing a charge of discrimination with the EEOC
on May 29, 2012.
(Compl. ¶ 12.)
Under the ADA, an employer may not terminate an employee
for making a charge of discrimination.
42 U.S.C. § 12203(a).
To avoid a motion for summary judgment on her ADA retaliation
claim,
Graves
engaged
in
must
a
point
protected
to
facts
activity,
indicating
(2)
the
that
“(1)
employer
she
acted
adversely against her, and (3) there was a causal connection
between the protected activity and the asserted adverse action.”
Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011).
The filing of an EEOC charge is an activity protected under the
ADA.
42 U.S.C. § 12203(a).
facie
case
and
Bank
of
If Graves can establish a prima
America
13
offers
a
legitimate
non-
In light of the court’s conclusion, Graves’ argument that even if
she were not disabled she was perceived to be (Doc. 28 at 4–5) need
not be addressed.
18
discriminatory
reason
for
her
termination,
Graves
bears
the
burden of providing evidence that the bank’s stated reason is
pretext for a discriminatory one.
145, 151 (4th Cir. 2003).
King v. Rumsfeld, 328 F.3d
Under this standard, Graves’ claim
for retaliation fails.
As
to
sufficient
requisite
the
prima
evidence
causal
facie
from
case,
which
connection.
a
Graves
fails
factfinder
Employer
to
could
knowledge
of
provide
find
an
the
EEOC
charge is “absolutely necessary” for a finding of retaliation.
See Dowe v. Total Action Against Poverty, 145 F.3d 653, 657 (4th
Cir. 1998).
26-1
at
Graves’ evidence on this score is marginal.
53–54
(relying
on
Graves’
statement
that
the
(Doc.
EEOC
explained that the employer would be informed of the charge and
on her testimony that Bridges and Friday told her, “Nobody’s
harassing you, so you can stop saying that”).) 14
Even further,
the passage of more than seven months between Graves’ filing of
her EEOC charge on May 29, 2012, and her termination in January
2013, is simply too long to support a finding of retaliation.
See Hooven-Lewis v. Caldera, 249 F.3d 259, 278 (4th Cir. 2001)
(“A
six
month
lag
is
sufficient
to
negate
any
inference
of
causation.”); Jones, 827 F. Supp. 2d at 554 (“[C]omplaints of
14
While Graves’ deposition suggests that Bridges and Friday at least
knew that she had complained of harassment (Doc. 26-1 at 54), there is
no evidence that they knew of her EEOC charge.
19
retaliation are considered stale after only a few months.”).
As
a result, Graves fails to meet her prima facie case.
Moreover, as noted earlier, Bank of America has provided a
legitimate non-discriminatory reason for her termination – the
violation of the bank’s Code of Ethics Policy – and Graves has
not provided any evidence this was pretextual.
It is not this
court’s province to second-guess this decision absent evidence
of pretext.
See Holland v. Wash. Homes, Inc., 487 F.3d 208,
217–18 (4th Cir. 2007).
Therefore, Bank of America’s motion for
summary judgment on this claim will be granted as well.
D.
State Law Claims
With facts identical to her federal claims, Graves pleads
state
law
claims
based
on
an
alleged
violation
of
North
Carolina’s public policies against disability discrimination and
retaliation.
abridgement
North Carolina law prohibits “discrimination or
on
account
of
race,
religion,
color,
national
origin, age, sex or handicap by employers which regularly employ
15
or
more
considering
employees.”
state
law
N.C.
Stat.
discrimination
Gen.
§ 143–422.2.
and
retaliation
When
claims,
North Carolina “look[s] to federal decisions for guidance in
establishing evidentiary standards and principles of law to be
applied in discrimination cases.”
N.C. Dep’t of Correction v.
Gibson, 301 S.E.2d 78, 82 (N.C. 1983); see also Williams v.
Avnet, Inc., 910 F. Supp. 1124, 1137 (E.D.N.C. 1995) (applying
20
Gibson
to
a
state
law
disability
claim).
Moreover,
no
retaliatory discharge claim exists under North Carolina public
policy.
607
See Stout v. Kimberly Clark Corp., 201 F. Supp. 2d 593,
(M.D.N.C.
2002)
(holding
that
no
“North
Carolina
court
decision . . . has ruled that a discharge as retaliation for an
employee’s protest of the employer’s discriminatory activities
violates the state’s public policy”).
of
material
fact
exists
regarding
Because no genuine issue
Graves’
federal
disability
discrimination and retaliation claims, therefore, her state law
claims similarly fail.
III. CONCLUSION
For the reasons stated, therefore,
IT IS ORDERED that Bank of America’s motion for summary
judgment (Doc. 25) be GRANTED.
/s/
Thomas D. Schroeder
United States District Judge
September 22, 2014
21
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