SMITH v. NOFTLE et al

Filing 21

MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 06/12/2015, that Defendants' Amended Motion for Judgment on the Pleadings (Doc. 18 ) is GRANTED, that Defendants' Motion for Judgment on the Plead ings (Doc. 9 ) is DENIED AS MOOT, and that this case is DISMISSED WITH PREJUDICE as to Defendants Randy Noftle, Ann Strickland, Luanne Marshall, John Zill, and Kaba Ilco Corporation. FURTHER that the case is DISMISSED WITHOU T PREJUDICE as to Defendant Chris Moran, pursuant to Federal Rule of Civil Procedure 4(m), because Plaintiff has failed to serve Defendant Moran and any attempts to serve Defendant Moran would be futile based on the reasons outlined in this Memorandum Opinion and Order. A judgment consistent with this Memorandum Opinion and Order will be entered contemporaneously herewith.(Taylor, Abby)

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

JAMES E. SMITH,
Plaintiff,
v.
RANDY NOFTLE, ANN STRICKLAND,
LUANNE MARSHALL, JOHN ZILL,
CHRIS MORAN, and KABA ILCO
CORPORATION,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

1:13CV708

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Plaintiff James E. Smith (“Plaintiff”), proceeding pro se,
filed a Complaint (Doc. 2) on August 28, 2013, alleging
violations of his rights under the Americans with Disabilities
Act of 1990, codified as amended at 42 U.S.C. § 12101 et seq.
(“ADA”), and the Age Discrimination in Employment Act of 1967,
codified as amended at 29 U.S.C. § 621 et seq.(“ADEA”). The
Complaint names as Defendants Randy Noftle, Ann Strickland,
Luanne Marshall, John Zill (the “Individual Defendants”), and
their employer, Kaba Ilco Corporation (“Kaba”) (collectively
“Defendants”).
Defendants filed an Amended Motion for Judgment on the
Pleadings (Doc. 18), Plaintiff has filed a Response (Doc. 13),

and Defendants filed a Reply (Doc. 16).1 The motion is now ripe
for ruling. For the reasons stated herein, this court will grant
Defendants’ motion and dismiss this case.
Chris Moran, another Kaba employee, was also named as
defendant, but he has never been served. (See Summons (Doc. 5)
(providing a summons as to all Individual Defendants, except
Defendant Moran).)

The Magistrate Judge, in her order, made it

clear that Plaintiff was “responsible for preparing and
delivering to the Clerk, the correct summons for service on each
defendant.” (Order (Doc. 4) at 1.) This court has the authority
to dismiss this action for lack of service, pursuant to Federal
Rule of Civil Procedure 4(m), because it has been more than 120
days since the Complaint was filed.2 Although this court would
normally be required to give Plaintiff additional time to serve

1

On November 25, 2013, this court allowed Defendants to
amend their original Motion for Judgment on the Pleadings (Doc.
9) to include Defendant Kaba, but did not require the parties to
submit revised response and reply briefs. (See Order (Doc. 17)
at 2 (“[T]his court will treat the amended motion for judgment
on the pleadings as objected to by Plaintiff as to all
Defendants, including Kaba, on the same grounds expressed in the
initial response.”).)
2

Moreover, this court “possesses authority to dismiss an in
forma pauperis case at any time the court determines the action
or appeal . . . fails to state a claim upon which relief may be
granted,” as this court finds here. See Jones v. Sternheimer,
387 Fed. Appx. 366, 368 (4th Cir. 2010) (citing 28 U.S.C.
§ 1915(e)(2)(B)).
- 2 -

Defendant Moran, this court finds that service would be futile
for the same reasons this court will dismiss the claims against
the other Individual Defendants.

Therefore, this case will be

dismissed as to Defendant Moran as well.
I.

BACKGROUND
Plaintiff, a Winston-Salem resident, had been employed in

various capacities by Kaba since 1976. (Compl. (Doc. 2) at 4.)3
Plaintiff asserts that he suffers from a medical condition “that
rises to the level of a disability” (id.), but Plaintiff does
not specify what that disability is. Plaintiff further alleges
that “[t]oward the last years of [his] employment,” he was
“treated unfairly and harassed” in such a manner that his
disability was exacerbated. (Id.)
On or around January 15, 2011, Plaintiff fell unconscious
while attempting to carry out his work duties and was told by
his supervisors that he needed to obtain medical treatment and a
medical release before returning to work. (Id.) Plaintiff
submits that he “[s]ubsequently . . . sought treatment from
[his] physicians, who would not provide [him] with a medical
release to return to work but required that [he] take a medical
All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.
3

- 3 -

leave of absence until the situation at work could be resolved.”
(Id. at 4-5.) Plaintiff remained on a medical leave of absence
until April 12, 2012, at which time Kaba terminated his
employment, “because [he] exceeded the normal number of days
that an employee can be out of work.” (Id. at 5.)
Defendants do not dispute Plaintiff’s contention that he
suffered from a medical condition that rises to the level of a
disability. (See Answer of Individual Defs. (Doc. 8) at 3;
Answer of Def. Kaba (Doc. 14) at 3.) Plaintiff also asserts that
“[m]anagement was well aware of [his] health condition [but] did
nothing to engage in interatctive [sic] dialogue with [him]
or .

. . [his] physician as to work.” (Compl. (Doc. 2) at 5.)
Finally, Plaintiff alleges that he was 56 years old at the

time he was fired. (Id.) Plaintiff filed the present action
asserting that he was subjected to unlawful discrimination in
violation of federal law based on his age and his disability.
(Id.)
II.

LEGAL STANDARD
A motion for judgment on the pleadings pursuant to Federal

Rule of Civil Procedure 12(c) is analyzed under the same
standard as a motion to dismiss for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6). See Burbach

- 4 -

Broad. Co. of Del. v. Elkins Radio Corp., 278 F.3d 401, 405–06
(4th Cir. 2002). Thus, the court assumes the factual allegations
in the complaint to be true and draws all reasonable factual
inferences in the plaintiff’s favor as the nonmoving party. See
id. at 406. However, unlike on a Rule 12(b)(6) motion, on a Rule
12(c) motion, the court may consider the answer as well. Rinaldi
v. CCX, Inc., No. 3:05–CV–108-RJC, 2008 WL 2622971, at *2 n.3
(W.D.N.C. July 2, 2008).
The factual allegations of the answer “are taken as true
only where and to the extent they have not been denied or do not
conflict with the complaint.” Jadoff v. Gleason, 140 F.R.D. 330,
331 (M.D.N.C. 1991). “For the purposes of this motion [the
defendant] cannot rely on allegations of fact contained only in
the answer, including affirmative defenses, which contradict
[the plaintiffs’] complaint,” because the “[p]laintiffs were not
required to reply to [the] answer, and all allegations in the
answer are deemed denied.” Id. at 332; see Fed. R. Civ. P.
8(b)(6) (“If a responsive pleading is not required, an
allegation is considered denied or avoided.”). “The test
applicable for judgment on the pleadings is whether or not, when
viewed in the light most favorable to the party against whom the
motion is made, genuine issues of material fact remain or

- 5 -

whether the case can be decided as a matter of law.” Smith v.
McDonald, 562 F. Supp. 829, 842 (M.D.N.C. 1983), aff'd, 737 F.2d
427 (4th Cir. 1984), aff'd, 472 U.S. 479 (1985).
III. ANALYSIS
Plaintiff alleges violations of his rights under the ADA
and the ADEA. This court finds that Plaintiff’s ADA claims can
be characterized in three ways: (1) a claim for failure to
accommodate his disability; (2) a claim for wrongful discharge
based on his disability; and (3) a hostile environment claim.
Plaintiff’s ADEA claim is a general age discrimination claim.
This court will address each claim in turn.
A.

Americans with Disabilities Act

The ADA prohibits discrimination “against a qualified
individual on the basis of disability in regard to job
application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms,
conditions, and privileges of employment.” 42 U.S.C. § 12112(a).
Before analyzing the merits of Plaintiff’s three potential ADA
claims, this court will address the preliminary issue of
appropriate parties.

- 6 -

i.

Appropriate Parties

Plaintiff may only assert ADA claims against his employer,
not individual defendants who are also employees. See Baird v.
Rose, 192 F.3d 462, 471–72 (4th Cir. 1999) (“[T]he ADA does not
recognize a cause of action for discrimination by private
individuals, only public entities.”). Plaintiff’s Complaint
asserts that Defendants Noftle, Strickland, Marshall, Zill, and
Moran are employees of Defendant Kaba, and they are being sued
in their individual capacities. (See Compl. (Doc. 2) at 1-2
(listing the positions within Kaba that each Individual
Defendant holds.) The ADA does not authorize such a suit, and as
a result, this court must dismiss the ADA claim as to these
employees. See Baird, 192 F.3d at 471–72. Therefore, the only
current defendant against whom Plaintiff may assert an ADA claim
is his former employer, Kaba.
ii.

Failure to Accommodate

Plaintiff’s Complaint most likely attempts to state a
failure-to-accommodate claim under the ADA. Under Title VII, as
incorporated by the ADA, a plaintiff must file a charge of
discrimination with the Equal Employment Opportunity Commission
(“EEOC”) within 180 days of the alleged discriminatory activity.
See 42 U.S.C. § 12117(a) (incorporating 42 U.S.C. § 2000e-5(e));

- 7 -

Sydnor v. Fairfax Cnty., Va., 681 F.3d 591, 593 (4th Cir. 2012).
The Supreme Court has made clear that untimely claims are
subject to dismissal, indicating that “[p]rocedural requirements
established by Congress for gaining access to the federal courts
are not to be disregarded by courts out of a vague sympathy for
particular litigants.” Baldwin Cnty. Welcome Ctr. v. Brown, 466
U.S. 147, 152 (1984) (per curium); Mohasco Corp. v. Silver, 447
U.S. 807 (1980) (“[S]trict adherence to the procedural
requirements specified by the legislature is the best guarantee
of evenhanded administration of the law.”); Suarez v. CharlotteMecklenburg Sch., 123 F. Supp. 2d 883, 887 (W.D.N.C. 2000).
However, “[f]iling a timely charge of discrimination with
the EEOC is . . . a requirement that, like a statute of
limitations, is subject to waiver, estoppel, and equitable
tolling.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393
(1982). Therefore, this court must examine the particulars of
Plaintiff’s Complaint and the time in which it was filed to
determine if Plaintiff’s Complaint is self-defeating in showing
that the EEOC charge was untimely.
Plaintiff was terminated by Kaba on April 12, 2012. (Compl.
(Doc. 2) at 5.) Prior to being terminated, Plaintiff was on
medical leave and had not worked on the premises at Kaba since

- 8 -

January 15, 2011. (Id. at 4.) All behavior and acts alleged by
Plaintiff to be in violation of the ADA occurred prior to
Plaintiff being placed on medical leave. (See id.) Defendants
attached to their Answer a copy of Plaintiff’s EEOC Charge of
Discrimination (“EEOC Charge”), which this court can consider in
evaluating the present motion. (Answer of Individual Defs., Ex.
A, EEOC Charge (Doc. 8-1).)4

Plaintiff’s EEOC Charge was filed

on September 14, 2012. Plaintiff’s EEOC Charge was filed 167
days after Plaintiff was terminated by Kaba and 609 days after
Plaintiff was placed on medical leave. Plaintiff was unable to
work while on medical leave, so the most recent action taken by
Kaba with regard to Plaintiff was allowing Plaintiff to be
4

This court may rely on the Plaintiff’s EEOC Charge (Doc.
8-1) in addressing Defendants’ Amended Motion for Judgment on
the Pleadings (Doc. 18), without converting the motion to one
for summary judgment, even though Plaintiff did not submit the
EEOC Charge. Defendants attached the Charge to their Answer
(Doc. 8). The Fourth Circuit has found that a court may consider
a document not attached to the complaint in determining whether
to dismiss the complaint if “it was integral to and explicitly
relied on in the complaint” and if “the plaintiffs do not
challenge its authenticity.” See Phillips v. LCI Int'l, Inc.,
190 F.3d 609, 618 (4th Cir. 1999). This court finds that
Plaintiff’s September 14, 2012 EEOC Charge of Discrimination
(Doc. 8-1) is integral to and explicitly relied upon in the
complaint, as Plaintiff would have been unable to file a civil
action without first filing such a charge with the EEOC.
Furthermore, Plaintiff does not challenge the authenticity of
the Charge. As such, this court finds it unnecessary to construe
Defendants’ motion as one for summary judgment and will rely on
the parties' submissions in ruling on the present motion.
- 9 -

placed on medical leave on January 15, 2011. The present action
was filed more than two years after that date. Therefore,
elements of Plaintiff’s ADA claims are most likely time-barred.
However, this court will address the substantive components of
Plaintiff’s failure to accommodate claim to show that, even if
timely filed, Plaintiff has failed to state such a claim.
To establish a prima facie case for failure to accommodate,
an employee must show that: (1) he was an individual with a
disability within the meaning of the ADA; (2) the employer had
notice of his disability; (3) with reasonable accommodation, he
could perform the essential functions of the position; and
(4) the employer refused to make such accommodations. Haneke v.
Mid-Atl. Capital Mgmt., 131 Fed. Appx. 399, 400 (4th Cir. 2005)
(citing Rhoads v. FDIC, 257 F.3d 373, 387 n.11 (4th Cir. 2001)).
“Implicit in the fourth element is the ADA requirement that the
employer and employee engage in an interactive process to
identify a reasonable accommodation.” Id. (citing 29 C.F.R. §
1630.2(o)(3) (“To determine the appropriate reasonable
accommodation it may be necessary for the [employer] to initiate
an informal, interactive process with the individual with a
disability in need of the accommodation.”)).

- 10 -

It is undisputed that Plaintiff has adequately alleged the
first two elements. See supra Part I. Plaintiff focuses on the
final two elements, alleging that Kaba had a duty to engage in
an “interactive” dialogue with Plaintiff regarding potential
accommodations that might “allow [him] to perform the essential
functions of his . . . job.” (Compl. (Doc. 2) at 6.) Defendant
Kaba admits that it never made any accommodations, and it does
not claim that it engaged in the “interactive process”
contemplated by 29 C.F.R. § 1630.2(o)(3). Kaba contends,
instead, that it was never required to provide any reasonable
accommodations or engage in any dialogue with Plaintiff because
Plaintiff could not show that he was a “qualified individual
with a disability – that is, that he could perform the essential
functions of the job with or without a reasonable
accommodation.” (Defs.’ Mem. in Supp. of Am. Mot. for J. on the
Pleadings (Doc. 19) at 6.) Having reviewed the relevant
statutory language and case law, this court agrees.
By its terms, the ADA only requires an employer to “mak[e]
reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a
disability.” 42 U.S.C. § 12112(b)(5)(A) (emphasis added). If
Plaintiff was not a qualified individual entitled to reasonable

- 11 -

accommodation in the first place, he does not satisfy the third
prong of the failure to accommodate inquiry, and Defendant Kaba
had no obligation to engage in any interactive process regarding
reasonable accommodations suitable for Plaintiff’s disability.
“It is well-settled that an individual who has not been
released to work by his or her doctor is not a ‘qualified
individual with a disability.’” Kitchen v. Summers Continuous
Care Ctr., LLC, 552 F. Supp. 2d 589, 594 (S.D.W. Va. 2008); see
also Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1047
(6th Cir. 1998) (“[B]ecause [the plaintiff] was not released by
her doctor to return to work, she has not met the second
requirement that she be qualified to perform the essential
functions of the job.”); Tyndall v. Nat’l Educ. Ctrs., Inc. of
Cal., 31 F.3d 209, 213 (4th Cir. 1994) (“An employee who cannot
meet the attendance requirements of the job at issue cannot be
considered a ‘qualified’ individual protected by the ADA.”);
Crow v. McElroy Coal Co., 290 F. Supp. 2d 693, 696 (N.D.W. Va.
2003) (“Because [the plaintiff] failed to obtain a release to
work from his doctor, [the plaintiff] has not shown that he can
perform the essential functions of the job with or without
reasonable accommodation.”); Farrish v. Carolina Commercial Heat
Treating, Inc., 225 F. Supp. 2d 632, 636 (M.D.N.C. 2002) (“[A

- 12 -

person] who cannot come to work cannot fulfill any, much less
the essential, functions of [a] job.”); Gower v. Wrenn Handling,
Inc., 892 F. Supp. 724, 727 (M.D.N.C. 1995) (finding that
plaintiff was not a qualified individual with a disability when
his doctor failed to release him to return to work).
Here, Plaintiff expressly states in his Complaint that his
“physicians [] would not provide [him] with a medical release to
return to work” and that going back to work “would be
detramental [sic] to [his] health.” (Compl. (Doc. 2) at 4-5.)
Thus, it appears on the face of the Complaint that Plaintiff was
not a “qualified individual with a disability” entitled to a
reasonable accommodation in the first instance.
Moreover, even if Plaintiff had been cleared to return to
work, “[t]he [employer’s] duty to engage in an interactive
process to identify a reasonable accommodation is generally
triggered when an employee communicates to his employer his
disability and his desire for an accommodation for that
disability.” Wilson v. Dollar Gen. Corp., 717 F.3d 337, 346-47
(4th Cir. 2013); see also Ainsworth v. Loudon Cnty. Sch. Bd.,
851 F. Supp. 2d. 963, 981 (E.D. Va. 2012) (noting that an
employer is only required to engage in the “interactive process”
of determining a reasonable accommodation if the “plaintiff

- 13 -

. . . make[s] clear to the employer that [he or she] want[s]
assistance for her disability”). Plaintiff makes no allegation
that he made any request for accommodation at any point, and has
therefore failed to demonstrate that Kaba’s obligation to find a
reasonable accommodation was ever triggered.5
iii. Wrongful Discharge
Plaintiff’s Complaint could also be read as asserting a
wrongful discharge claim under the ADA. Plaintiff’s EEOC Charge
of Discrimination was filed on September 14, 2012. (EEOC Charge
(Doc. 8-1).)

As stated earlier, Plaintiff’s EEOC Charge was

filed 167 days after Plaintiff was terminated by Kaba.
Therefore, his wrongful discharge claim is timely. However, as
with the failure-to-accommodate claim, this court finds that
Plaintiff has failed to state a wrongful discharge claim under
the ADA.

5

On a related note, “[n]othing in the text of the
reasonable accommodation provision requires an employer to wait
an indefinite period for an accommodation to achieve its
intended effect. Rather, reasonable accommodation is by its
terms most logically construed as that which presently, or in
the immediate future, enables the employee to perform the
essential functions of the job in question.” Myers v. Hose, 50
F.3d 278, 283 (4th Cir. 1995). Without any indication that any
sort of accommodation would allow Plaintiff to return to work
after more than a year of medical leave, Defendant Kaba had no
obligation to grant any further leave time.
- 14 -

To establish a prime facie case of wrongful discharge, a
plaintiff must show by a preponderance of the evidence that
(1) he is within the ADA’s protected class; (2) he was
discharged; (3) at the time of his discharge, he was performing
the job at a level that met his employer’s legitimate
expectations; and (4) his discharge occurred under circumstances
that raise a reasonable inference of unlawful discrimination.
Haneke v. Mid-Atl. Capital Mgmt., 131 Fed. Appx. 399, 400 (4th
Cir. 2005) (citing Haulbrook v. Michelin N. Am., Inc., 252 F.3d
696, 702 (4th Cir. 2001)).
As to the first element, an individual is “within the ADA’s
protected class” if he is a “qualified individual with a
disability,” which means “an individual with a disability who,
with or without reasonable accommodation, can perform essential
functions of the employment position that such ‘individual’
holds or ‘desires.’” 42 U.S.C. § 12111. As discussed supra,
Plaintiff has not alleged facts sufficient to show that he was a
qualified individual with a disability within the meaning of the
statute at the time he was terminated. When an employee cannot
attend work, that employee cannot be, absent special
circumstances not present here, a qualified individual protected
by the ADA. Tyndall, 31 F. 3d at 213.

- 15 -

Plaintiff has failed to

allege that he was actually performing any work at all for Kaba
at the time he was discharged and within the statutory period,
or that he was capable of performing such work at the time of
his discharge.

Because Plaintiff has not shown that he was a

qualified individual pursuant to the ADA when Kaba terminated
him, Plaintiff has failed to state a claim for wrongful
discharge.
iv.

Hostile Work Environment

Plaintiff’s Complaint also attempts to state a hostile work
environment claim under the ADA. The Fourth Circuit has found
that a hostile work environment claim is cognizable under the
ADA. To state a claim for hostile work environment under the
ADA, a plaintiff must plausibly assert:
(1) he is a qualified individual with a disability;
(2) he was subjected to unwelcome harassment; (3) the
harassment was based on his disability; (4) the
harassment was sufficiently severe or pervasive to
alter a term, condition, or privilege of employment;
and (5) some factual basis exists to impute liability
for the harassment to the employer.
Fox v. Gen. Motors Corp., 247 F.3d 169, 177 (4th Cir. 2001). As
stated supra, discrimination claims are subject to a strict
timeline. However, in the context of a hostile work environment
claim, the Supreme Court has recognized a “continuing violation”
theory:

- 16 -

[T]he statute precludes recovery for discrete acts of
discrimination or retaliation that occur outside the
statutory time period. We also hold that
consideration of the entire scope of a hostile work
environment claim, including behavior alleged outside
the statutory time period, is permissible for the
purposes of assessing liability, so long as an act
contributing to that hostile environment takes place
within the statutory time period. The application of
equitable doctrines, however, may either limit or
toll the time period within which an employee must
file a charge.
Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002).
As this court has previously explained, the only action
made by Kaba affecting Plaintiff that falls within the statutory
period is when Kaba terminated Plaintiff on April 12, 2012, for
exhausting medical leave. The date that Plaintiff went on
medical leave and all preceding events fall outside the statute
of limitations for an ADA claim and are, therefore, time-barred.
In order for this claim to be actionable and not time-barred,
Plaintiff would need to show that it is a continuing violation.
To plead a continuing violation, Plaintiff must show that
‘[T]he unconstitutional or illegal act was a fixed and
continuing practice.’ In other words, if the plaintiff
can show that the illegal act did not occur just once,
but rather ‘in a series of separate acts[,] and if the
same alleged violation was committed at the time of
each act, then the limitations period begins anew with
each violation.’
A Soc'y Without A Name v. Virginia, 655 F.3d 342, 348 (4th Cir.
2011) (quoting Nat'l Adver. Co. v. City of Raleigh, 947 F.2d
- 17 -

1158, 1166-67 (4th Cir. 1991)), cert. denied, ____ U.S. ____,
132 S. Ct. 1960 (2012). However, “continual unlawful acts are
distinguishable from the continuing ill effects of an original
violation because the latter do not constitute a continuing
violation.” Id. Thus, because the only portion of Plaintiff’s
claim that is timely is being terminating for exhausting his
medical leave, Plaintiff’s termination would have to be one in a
series of continuing unlawful acts to not be time-barred.
Plaintiff contends that “[he] suffer[s] from a medical
condition that rises to the level of a disability.” (Compl.
(Doc. 2) at 4.) Plaintiff further asserts that “[t]owards the
last years of [his] employment, [he] was treated unfairly and
harassed by other employees and supervisors, which exacerbated
[his] disability.” (Id.; EEOC Charge (Doc. 8-1).) Plaintiff also
alleges that Kaba was “well aware of [his] medical condition,
medications and doctors before [his] incident.”6 (Pl.’s Resp. in
Opp. to Defs.’ Mot. for J. on the Pleadings (Doc. 13) at 3.) In
its Answer, “Kaba admits that the Plaintiff has a medical
condition that might be a ‘disability’ as that term is defined
in the [ADA].” (Answer of Def. Kaba (Doc. 14) at 3.)

6

However,

The “incident” most likely refers to the January 15, 2011
date when Plaintiff went on medical leave.
- 18 -

Kaba denies that Plaintiff was discriminated against in any way
in violation of the ADA. (Id. at 4.) Plaintiff does not make any
allegations of discriminatory behavior by Kaba, or its
employees, occurring any time between January 15, 2011, when he
was placed on medical leave and April 12, 2012, when he was
terminated. Therefore, there is no other discriminatory action
upon which Plaintiff could base his hostile work environment
claim, and the only discriminatory event that could anchor a
continuing violation claim is Plaintiff’s termination on
April 12, 2012.
As explained supra, Plaintiff’s termination was not a
violation of the ADA. Plaintiff was not a qualified individual
at the time he was terminated. In addition, Plaintiff was on
medical leave and was not given a medical release to return to
work. There was no accommodation that Kaba could make to enable
Plaintiff to work when Plaintiff was medically unable to work.
The only claim Plaintiff could make connecting the termination
to any previous discriminatory behavior on the part of Kaba is a
continuing effects claim, which does not trigger a viable ADEA
claim. Moreover, because the termination itself is not a
violation, it cannot serve as the basis for a continuing
violation claim. Therefore, Plaintiff’s hostile work environment

- 19 -

claim is time-barred or, in the alternative, Plaintiff has not
stated a claim.
B.

Age Discrimination in Employment Act

Plaintiff also asserts a claim under the ADEA,7 but his
allegations regarding age discrimination are minimal. Plaintiff
has made no allegations that would suggest direct evidence that
Kaba intentionally discriminated against him on the basis of his
age. Therefore, Plaintiff must rely on the burden-shifting
method of proof established in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). See Henson v. Liggett Grp., Inc., 61 F.3d
270, 274 (4th Cir. 1995) (applying McDonnell Douglas to ADEA
claims). McDonnell Douglas requires a plaintiff to first allege
a prima facie case of discrimination, which gives rise to an
inference of discrimination. See McDonnell Douglas, 411 U.S. at
802-04. The burden then shifts to the defendants to produce a
legitimate non-discriminatory reason for their action. See id.;
Henson, 61 F.3d at 274. If the defendants provide evidence of a
non-discriminatory reason for their action, the plaintiff bears
the ultimate burden of persuasion and must show, by a
7

The ADEA, like the ADA and Title VII, “do[es] not provide
for causes of action against defendants in their individual
capacities.” Jones, 387 Fed. Appx. at 368. Therefore, Plaintiff
cannot state a plausible claim under the ADEA against the
Individual Defendants.
- 20 -

preponderance of the evidence, that the proffered reason was
pretext for discrimination. See id. at 275.
To establish a prima facie case of discriminatory discharge
under the ADEA, Plaintiff must allege the following elements:
(1) he is a member of the protected class; (2) he was qualified
for the job and met the employer’s legitimate expectations; (3)
he was discharged despite his qualifications and performance;
and (4) following his discharge, he was replaced by someone with
comparable qualifications outside the protected class. Causey v.
Balog, 162 F.3d 795, 802 (4th Cir. 1998) (citing Blistein v. St.
John’s College, 74 F.3d 1459, 1467–68 (4th Cir. 1996)).
Plaintiff alleges that he was 56 years old at the time he
was discharged, and therefore meets the first element, but his
Complaint is deficient in at least two ways. First, he has
failed to demonstrate that he was “qualified” for the job or
that he was meeting Defendant Kaba’s “legitimate expectations”
at the time he was discharged. As discussed supra, Plaintiff had
been on medical leave for over a year, with no release from his
physicians to return to work. Second, Plaintiff makes no
allegations that he was replaced by anyone, much less an
individual with “comparable qualifications outside the protected
class.” See Causey, 162 F.3d at 802. This court finds that

- 21 -

Plaintiff has not stated a sufficient ADEA claim and, therefore,
this claim must be dismissed.
IV.

CONCLUSION
IT IS THEREFORE ORDERED that Defendants’ Amended Motion for

Judgment on the Pleadings (Doc. 18) is GRANTED, that Defendants’
Motion for Judgment on the Pleadings (Doc. 9) is DENIED AS MOOT,
and that this case is DISMISSED WITH PREJUDICE as to Defendants
Randy Noftle, Ann Strickland, Luanne Marshall, John Zill, and
Kaba Ilco Corporation.
IT IS FURTHER ORDERED that the case is DISMISSED WITHOUT
PREJUDICE as to Defendant Chris Moran, pursuant to Federal Rule
of Civil Procedure 4(m), because Plaintiff has failed to serve
Defendant Moran and any attempts to serve Defendant Moran would
be futile based on the reasons outlined in this Memorandum
Opinion and Order.
A judgment consistent with this Memorandum Opinion and
Order will be entered contemporaneously herewith.
This the 11th day of June, 2015.

_____________________________________
United States District Judge

- 22 -