SPEARS V. WATER & SEWAGE AUTHORITY OF CABARRUS COUNTY
Filing
44
MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 05/24/2017. WSACC's motion for summary judgment 17 is GRANTED and this action is DISMISSED WITH PREJUDICE. (Coyne, Michelle)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JUDSON S. SPEARS,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
WATER & SEWAGE AUTHORITY OF
CABARRUS COUNTY,
Defendant.
1:15cv859
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
This is an action for wrongful discharge by Plaintiff Judson
S. Spears, who was terminated by his employer, the Water & Sewage
Authority of Cabarrus County (“WSACC”), on October 14, 2013.
Before the court is WSACC’s motion for summary judgment.
17.)
The motion is fully briefed and ready for decision.
(Doc.
For the
reasons set forth below, the motion will be granted and the
complaint will be dismissed.
I.
BACKGROUND
As they are construed in a light most favorable to Spears as
the nonmoving party, the facts are as follows.
Spears was employed by WSACC in 1996 as an Electrical and
Instrumentation Technician.
and
repair
“difficult
maintenance,
of
WSACC’s
technical
and
repair
His duties included the maintenance
wastewater
skilled
of”
facility,
work
control
in
specifically
the
systems
the
installation,
involved
in
the
wastewater pumping and treatment at WSACC facilities.
at 1; Doc. 34 at 4-5.)
(Doc. 25-3
While Spears dealt mostly with electrical
issues, he also served as a mechanic, responsible for fixing
failing equipment.
WSACC
promoted
(Doc. 25-3; Doc. 34 at 4-5.)
Spears
Supervisor around 2000.
to
Electrical
(Doc. 34 at 6.)
and
Instrumentation
The functions of this
position generally include his previous responsibilities, but with
an added management role of supervising electrical technicians.
(Id.; Doc. 28-2 at 1.)
Spears served in this role until he was
terminated on October 14, 2013.
(Doc. 34 at 8.)
At one time,
Spears managed up to three employees, but by 2010, he was only
managing one, Lynn Ritchie.
12.)
(Id.; Doc. 18-2 at 15; Doc. 36 at
When the employees he was managing left, Spears’ workload
increased.
(Doc. 34 at 12.)
On September 9, 2013, Spears injured his back while at work.
(Doc. 29-1; Doc. 29-2; Doc. 29-3; Doc. 29-4; Doc. 36 at 2-4.)
He
reported that his doctor gave him a “light work” restriction,
limited to lifting no more than twenty pounds.
Doc. 29-1; Doc. 29-2; Doc. 29-3; Doc. 29-4.)
(Doc. 18-3 at 6;
Spears’ doctor filed
a workers’ compensation claim on his behalf on September 16, 2013.
(Doc. 26-2; Doc. 29-1; Doc. 29-2; Doc. 36 at 3.)
Spears also
informed Mark Fowler and Chris Carpenter, his supervisors at the
time of his injury, but said he felt the weight restriction was
“excessive” and unnecessary.
(Doc. 1 at 3, ¶ 19.)
2
Spears did not ask for sick leave or medical leave (Doc. 36
at 5-6; Doc. 37 at 8), as he felt that he could not take any time
off because of the workload (Doc. 36 at 11).
He alleges that WSACC
knew that he was routinely violating his restrictions in an effort
to address a growing workload.
(Id. at 12-13.)
He did ask for
additional assistance in performing his duties because of his
injury
but
exception.
in
some
says
that
he
(Id. at 11-12.)
capacity
–
never
received
assistance,
with
one
He maintains that he was able to serve
mostly
“troubleshooting”
electrical
or
equipment failures, without having to physically exert himself –
but that his lifting restriction limited his ability to fully
perform his duties.
(Id. at 11-14.)
During his off time, Spears continued to work on personal
rental properties he owned.
(Id. at 9.)
injuring
employee
his
back,
a
WSACC
At some time after
observed
Spears
lifting
materials appearing to weigh more than 20 pounds while performing
work at one of Spears’ rental properties.
(Doc. 18-3 at 25-27.)
On September 27, 2013, Spears carried a piece of drywall that
weighed more than twenty pounds at one of his rental properties
and was filmed doing so by a private investigator hired by WSACC’s
insurance company.
(Doc. 1 at 4; Doc. 18-5 at 4; Doc. 36 at 9-
11, 14-15; Doc. 37 at 1.)
2013, for fraud.
WSACC terminated Spears on October 14,
(Doc. 25-1 at 5-6.)
Spears’ termination occurred in the midst of discussions
3
concerning his job performance.
In April 2013, Spears received
his annual evaluation, covering his performance from April 3, 2012,
through April 3, 2013.
The assessment noted his inefficiency,
lack of leadership skills, inability to prioritize work and staff
projects, and ineffective communication.
(Doc. 26; Doc. 26-1.)
The evaluation specifically noted his repeated absence from work,
which the evaluation explained by pointing to Spears’ need to take
time
off
from
appointments.”
work
(Doc.
to
attend
26-1
at
“an
extraordinary
3.)
But
the
number
evaluation
commended him for his overall competency and initiative.
26; Doc. 26-1.)
of
also
(Doc.
This followed Spears’ 2012 evaluation, which
contained similar remarks and an overall score of 3.93 out of 9
(1-3
is
“unsatisfactory”;
“exceptional”).
Spears’
4-6
is
“expected”;
and
7-9
is
(Doc. 27; Doc. 34 at 15-20; Doc. 37 at 4-5.)
supervisors
extended
his
2013
evaluation
period
through July 2013 and met with him several times to discuss his
performance.
at 6-7.)
(Doc. 18-2 at 18-20; Doc. 18-3 at 10-11; Doc. 25-1
During this time, Spears showed some improvement, but
not with respect to his leadership abilities.
11.)
(Doc. 18-3 at 10-
Spears disagreed with his 2013 evaluation and filed a
grievance letter to appeal through an internal process.
4 at 6-9)
(Doc. 18-
WSACC convened a hearing panel to address Spears’ appeal
but ultimately decided to affirm his 2013 evaluation.
12-14.)
4
(Doc. 39 at
Spears filed the instant action against WSACC on October 15,
2015, advancing claims under the Americans with Disabilities Act
of 1990 (“ADA”), 42 U.S.C. § 12112 and § 12117, as amended; the
North Carolina Retaliatory Employment Discrimination Act (“REDA”),
N.C. Gen. Stat. 95-240 et seq.; Title VII of the Civil Rights Act
of 1964 (“Title VII”), as amended by the Civil Rights Act of 1991
and set forth in 42 U.S.C. § 2000e, et seq.; the Family and Medical
Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq.; the North
Carolina Equal Employment Practices Act, N.C. Gen. Stat. 143-422.1
et
seq.;
and
the
North
Carolina
Persons
with
Protection Act, N.C. Gen. Stat. 168A-11 et seq.
Disabilities
(Doc. 1 at 1.)
Spears seeks compensatory damages for lost wages, benefits, and
pain and suffering; punitive damages; legal costs; treble damages
pursuant to N.C. Gen. Stat. § 95-243; and a mandatory injunction
forcing
WSACC
to
implement
discriminatory activities.
procedures
preventing
illegal
(Doc. 1 at 8-9.)
On August 31, 2016, WSACC moved for summary judgment on all
of Spears’ claims.
(Doc. 17.)
and WSACC replied (Doc. 42).
Spears has responded (Doc. 23),
Each claim will be addressed in
turn. 1
1
Spears did not address his Title VII claim in his response to WSACC’s
motion for summary judgment. (Doc. 24.) The court will consider that
claim to have been waived. Skinner v. Loudoun Cty. Dep't of Mgmt. &
Fin. Servs., 602 F. App'x 907, 910–11 (4th Cir. 2015) (holding that
plaintiff waived his arguments against dismissal of a claim on summary
judgment partially because he failed to address the claim in his response
5
II.
ANALYSIS
A.
Standard of Review
Summary
judgment
is
appropriate
where
the
pleadings,
affidavits, and other proper discovery materials demonstrate that
no genuine dispute as to any material fact exists and the moving
party is entitled to judgment as a matter of law.
Fed. R. Civ. P.
56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-33 (1986).
The
party seeking summary judgment bears the burden of initially
demonstrating the absence of a genuine dispute as to any material
fact.
Celotex, 477 U.S. at 323.
If this burden is met, the
nonmoving party must then affirmatively demonstrate a genuine
dispute of material fact which requires trial.
Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
There
is no issue for trial unless sufficient evidence favoring the
nonmoving party exists for a factfinder to return a verdict for
that party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-
brief).
Regardless of waiver, Spears’ claim cannot survive WSACC’s
motion for summary judgment.
To establish a prima facie retaliation
claim under Title VII, a plaintiff must show that (1) he engaged in a
protected activity, (2) the defendant took an adverse employment action
against him that a reasonable employee would find materially adverse,
and (3) there was a causal link between the two events.
Adefila v.
Select Specialty Hosp., 28 F. Supp. 3d 517, 524 (M.D.N.C. 2014) (citing
Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 410 (4th Cir.
2013)). There are two types of protected activities under Title VII:
(1) participation in a Title VII investigation, proceeding, or hearing,
and (2) opposition to any practice made unlawful under this subchapter.
Title VII § 704(a), 42 U.S.C. § 2000e-3(a); E.E.O.C. v. Navy Fed. Credit
Union, 424 F.3d 397, 405 (4th Cir. 2005).
Spears has not alleged
participation in either type of protected activity.
6
50, 257 (1986).
In addition, the nonmoving party is entitled to
have the “credibility of his evidence as forecast assumed, his
version of all that is in dispute accepted, [and] all internal
conflicts in it resolved favorably to him.”
Metric/Kvaerner
Fayetteville v. Fed. Ins. Co., 403 F.3d 188, 197 (4th Cir. 2005)
(quoting Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th
Cir. 1979)) (initial quotation marks omitted).
B.
Federal Claims
1.
Spears
ADA Wrongful Discharge
claims
that
WSACC
discriminated
against
him
terminating him because he was disabled with a back injury.
1 ¶ 42.)
by
(Doc.
To make out a prima facie case of wrongful discharge
under the ADA, a plaintiff must demonstrate that (1) he “was a
qualified individual with a disability”; (2) he “was discharged”;
(3) he “was fulfilling h[is] employer's legitimate expectations at
the
time
discharge
of
discharge”;
raise
discrimination.”
a
and
(4)
“the
reasonable
circumstances
inference
of
of
h[is]
unlawful
Rohan v. Networks Presentations LLC, 375 F.3d
266, 273 n.9 (4th Cir. 2004) (internal quotation marks omitted).
In order to survive summary judgment, a plaintiff must provide
evidence supporting each of these elements.
Reynolds v. Am. Nat.
Red Cross, 701 F.3d 143, 150 (4th Cir. 2012).
After a plaintiff
establishes a prima facie case, the burden of production shifts to
the
defendant-employer
to
articulate
7
a
legitimate,
nondiscriminatory
reason
for
the
adverse
employment
action.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Gillins
v. Berkeley Elec. Co-op., Inc., 148 F.3d 413, 415–16 (4th Cir.
1998).
If the employer does so, the burden then shifts back to
the plaintiff to demonstrate that the employer’s stated reason was
merely pretextual and that the employer was motivated, in fact, by
a discriminatory purpose.
See St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 515 (1993) (“[A] reason cannot be proved to be ‘a pretext
for discrimination’ unless it is shown both that the reason was
false, and that discrimination was the real reason.” (emphasis in
original)).
WSACC argues that Spears cannot set forth a prima facie case
of discrimination under the ADA for three reasons.
First, Spears
cannot show that he was otherwise qualified for his job because of
his alleged workers’ compensation fraud.
he
cannot
introduce
evidence
that
he
(Doc. 18 at 7.)
was
Second,
terminated
under
circumstances that raise an inference of unlawful discrimination.
(Id.)
Third, even if Spears could make out a prima facie case, he
cannot prove that WSACC’s proffered reason for termination – his
fraud in relation to his workers’ compensation claim – was false.
(Id. at 7-8.)
Spears responds by arguing that the temporal
proximity between him notifying his superiors of his back injury
and his termination is proof of causation and sufficient to raise
an inference of discrimination under the ADA.
8
(Doc. 24 at 6-7.)
Even if Spears could establish a prima facie case of wrongful
discharge
under
proffered
reason
discrimination.
false,
and
that
the
ADA, 2
for
he
cannot
terminating
establish
him
was
a
that
WSACC’s
pretext
for
To do so, he must prove “both that the reason was
discrimination
challenged conduct.”
was
the
real
reason’
for
the
DeJarnette v. Corning Inc., 133 F.3d 293,
298 (4th Cir. 1998) (quoting Jiminez v. Mary Washington Coll., 57
F.3d 369 (4th Cir. 1995) (emphasis removed)); see also Gillins v.
Berkeley Elec. Coop., Inc., 148 F.3d 413, 416 (4th Cir. 1998)
(stating that “[t]his court has adopted what is best described as
the ‘pretext-plus' standard for summary judgment in employment
discrimination cases”).
Spears has failed to make such a showing.
The record demonstrates that Spears’ colleagues considered
him to be generally honest and likeable.
And he appears to have
had few disciplinary issues over his 17-year career.
But Spears
fails to adduce evidence sufficient for the court to discard
WSACC’s proffered reason for the termination, conceding that he
was violating his weight restriction when working on his rental
properties while pursuing a workers’ compensation claim.
18-5 at 4.)
(Doc.
Each of the WSACC employees deposed explained that he
viewed Spears’ actions as fraud and dishonesty and the exclusive
2
WSACC appears to concede that Spears has a disability under the ADA.
Because the court will grant WSACC’s motion for summary judgment, it
need not address WSACC’s argument that Spears’ alleged fraud prevented
him from being otherwise qualified for the job. (Doc. 18 at 6-9.)
9
reason for his termination.
(Doc. 18-2 at 4, 9, 11, 19; Doc. 18-
3 at 4, 11, 19; Doc. 25-1 at 6; Doc. 31 at 15, 18; Doc. 38 at 6.)
Spears’
direct
supervisor,
Carpenter,
further
explained
that
Spears violated his restriction even after affirming that he was
abiding by his weight restriction at work.
40 at 4-5.)
(Doc. 38 at 15; Doc.
Moreover, Spears himself noted that he was given one
explanation for his termination: fraud.
(Doc. 18-4 at 10-11; Doc.
24 at 14; Doc. 35 at 10-11.)
Spears fails to introduce evidence that his termination was
the result of unlawful discrimination under the ADA.
In sum, the
material facts are not in dispute: Spears reported an injury,
received a light-work restriction, and was later terminated after
violating
that
restriction
while
working
on
his
home-rental
business even though he was pursuing a workers’ compensation claim
for the injury.
Instead
of
providing
evidence
of
discrimination,
Spears
argues that WSACC’s fraud contention lacks merit, as his employer
cannot prove the elements of fraud under North Carolina law.
However, “it is irrelevant whether in fact plaintiff was guilty of
such conduct; it matters only that the employer subjectively
believed that this was so. . . . [T]he ADA demands only that courts
find
that
the
discriminatory
employer’s
determinations
intentions.”
Shiflett
v.
were
GE
not
Fanuc
driven
by
Automation
Corp., 960 F. Supp. 1022, 1030 (W.D. Va. 1997), aff'd, 151 F.3d
10
1030 (4th Cir. 1998).
It is of course possible that Spears was a
non-compliant patient who foolishly decided to ignore his doctor’s
advice on his personal time.
But WSACC’s proffered reason – that
Spears’ off duty activity demonstrated that his pursuit of his
workers’
compensation
claim
and
contention
of
injury
were
fraudulent – is indubitably a legitimate reason for termination.
See Holder v. City of Raleigh, 867 F.2d 823, 829 (4th Cir. 1989)
(finding that employer's belief that employee was not trustworthy
a legitimate, nondiscriminatory reason for failure to promote);
Brewer v. Dana Corp., 205 F. Supp. 2d 511, 518-19 (W.D.N.C. 2002)
(finding
that
violation
of
a
work
rule
is
a
legitimate,
nondiscriminatory reason for discharge); Grier v. Casey, 643 F.
Supp. 298, 309 (W.D.N.C. 1986) (finding that integrity and honesty
are legitimate qualifications to demand of an employee).
This is true even if WSACC was mistaken.
As the Fourth
Circuit has explained, “[b]ad or mistaken reasons for a decision
may
yet
be
non-discriminatory.”
Holder,
867
F.2d
at
829.
Moreover, because the issue is whether Spears’ termination was
motivated by discriminatory intent, the court need not decide, as
Spears urges, whether WSACC could prove that he actually committed
fraud.
Ruth v. Eka Chemicals, Inc., 92 F. Supp. 3d 526, 532 (N.D.
Miss.), aff'd, 623 F. App'x 281 (5th Cir. 2015) (In disability
discrimination
restrictions
action
while
where
off-duty,
plaintiff
court
11
noted:
violated
light-work
“[Plaintiff]
cannot
prevail by merely showing that he should not have been terminated
for exceeding his restrictions.
To establish pretext, he must
produce evidence demonstrating that it was not a true reason for
his termination.” (citation omitted)).
The court will therefore grant WSACC’s motion for summary
judgment on Spears’ ADA wrongful discharge claim.
2.
WSACC
ADA Retaliation
also
moves
for
summary
judgment
on
Spears’
ADA
retaliation claim, where he alleges that he was terminated because
of
his
disability,
compensation
evaluation.
claim,
in
retaliation
and
for
(Doc. 1 ¶ 39.)
for
appealing
filing
his
2013
a
workers’
performance
WSACC argues that Spears cannot make
out a claim for ADA retaliation because he never engaged in a
protected activity under the ADA.
response
brief,
Spears
does
not
(Doc. 42 at 3-4.)
identify
what
ADA
In his
protected
activity resulted in WSACC’s allegedly retaliatory termination.
Instead, he argues that, but for his back injury, WSACC would not
have accused him of fraud and terminated him.
(Doc. 24 at 14.)
Spears reiterates that he requested accommodations for his back
injury, but received none.
(Id.)
Finally, he explains that his
claim under North Carolina’s REDA “would closely parallel [his]
ADA-Retaliation claim.”
(Id.)
Spears confuses an ADA retaliation claim with a claim for
wrongful discharge under the ADA.
12
In an ADA retaliation claim, an
employer discriminates against an employee after he “opposed any
act or practice made unlawful by this chapter” or “made a charge,
testified,
assisted
in
an
investigation, proceeding, or hearing under this chapter.”
42
U.S.C. § 12203(a).
or
participated
in
any
manner
In a wrongful discharge claim under the ADA,
an employer discriminates against a qualified employee on the basis
of his disability.
42 U.S.C. § 12112(a); Gentry v. E. W. Partners
Club Mgmt. Co. Inc., 816 F.3d 228, 235 (4th Cir. 2016) (noting
that
the
“but
for
causation
standard”
applies
to
disability
discrimination claims under the ADA).
Regardless,
Spears
fails
to
adduce
facts
sufficient
to
survive WSACC’s motion because he cannot point to any instance
where he engaged in a protected activity under the ADA.
As WSACC
correctly notes, “[f]iling a workers' compensation claim is not
something that is covered by the ADA, but rather by retaliation
provisions under state law.” Reynolds, 701 F.3d at 154. Moreover,
there is nothing in his 2013 performance evaluation that relates
to his later back injury that resulted in his disability.
The court will therefore grant WSACC’s motion for summary
judgment on Spears’ claim for retaliation under the ADA.
3.
Spears
ADA Accommodation
also
argues
that
WSACC
failed
to
accommodate his disability, in violation of the ADA.
¶¶ 40, 41.)
reasonably
(Doc. 1
To establish a prima facie case of failure to
13
accommodate under the ADA, Spears must show “(1) that he was an
individual who had a disability within the meaning of the statute;
(2) that the [employer] had notice of his disability; (3) that
with
reasonable
accommodation
he
could
perform
the
essential
functions of the position . . . ; and (4) that the [employer]
refused to make such accommodations.” Wilson v. Dollar Gen. Corp.,
717 F.3d 337, 345 (4th Cir. 2013) (citation omitted).
If the
plaintiff proves the elements of his failure-to-accommodate claim,
the employer can avoid liability if it can show that the proposed
accommodation
will
cause
undue
hardship.
Reyazuddin
v.
Montgomery Cty., 789 F.3d 407, 414 (4th Cir. 2015) (internal
quotation marks omitted).
The
requires
third
an
element
inquiry
relevant position.
of
into
a
the
failure-to-accommodate
essential
of
the
In the context of the ADA, “[n]ot all job
requirements or functions are essential.”
579.
functions
claim
Jacobs, 780 F.3d at
Instead, essential functions are those “ that bear more
than a marginal relationship to the job at issue[.]”
Tyndall
v. Nat'l Educ. Ctrs. Inc. of Cal., 31 F.3d 209, 213 (4th Cir.
1994) (citation omitted).
A job function is essential when “the
reason the position exists is to perform that function,” when there
aren't enough employees available to perform the function, or when
the function is so specialized that someone is hired specifically
because of his or her expertise in performing that function.
14
29
C.F.R. § 1630.2(n)(2); see Jacobs, 780 F.3d at 579.
identifies
function
two
is
factors
that
essential
to
inform
a
whether
position:
(1)
The ADA
a
particular
the
employer’s
judgment of the essential functions, and (2) any written job
description, if prepared ahead of advertising or interviewing
candidates for a position. See 42 U.S.C. § 12111(8).
But “even if a plaintiff is unable to perform an essential
function of the job, the court must nevertheless determine whether
the person could do the job with reasonable accommodation.”
v. Qualex, Inc., 33 F. App'x 49, 59 (4th Cir. 2002).
Lamb
The burden
of identifying an accommodation that would allow a qualified
individual to perform the job rests with the plaintiff, as does
the ultimate burden of persuasion in demonstrating that such an
accommodation is reasonable.
Id.
Once the plaintiff has met his
burden of proving that a reasonable accommodation exists, the
employer
may
present
evidence
that
the
plaintiff's
requested
accommodation imposes an undue hardship on the employer.
Id.; see
42 U.S.C. § 12112(b)(5)(A).
The term “reasonable accommodation” means “[m]odifications or
adjustments
to
circumstances
customarily
the
under
which
performed,
disability . . . to
position.”
work
environment,
the
that
perform
or
position
enable
the
15
held
an
the
or
manner
or
desired
is
individual
essential
29 C.F.R. § 1630.2(o)(1)(ii).
to
functions
with
of
a
that
The ADA notes that a
reasonable
accommodation
U.S.C. § 12111(9).
may
require
job
restructuring.
42
But an employer is not required to grant a
reasonable accommodation unless it would enable the employee to
perform all of the essential functions of his position. 42 U.S.C.
§ 12111(8); Jacobs, 780 F.3d at 581.
In support of its motion, WSACC notes that Spears requested
two accommodations: (1) assistance in lifting items heavier than
20 pounds and (2) the hiring of additional employees. WSACC argues
that it provided Spears with the former by instructing Spears to
ask fellow employees for help whenever he encountered a task that
his weight restriction prohibited.
(Doc. 42 at 2.)
But WSACC
contends that Spears’ second requested accommodation (the hiring
of additional workers) is not considered reasonable under the ADA.
(Id. at 3, n.2.)
Spears replies that WSACC paid “lip service” to its duty to
provide
injury.
failed
reasonable
accommodation
(Doc. 24 at 11.)
to
accommodate
his
once
he
disclosed
his
back
In addition, Spears contends, WSACC
disability
by
declining
to
hire
additional workers, even when he was experiencing “a heavy, heavy
workload that continued to increase.”
(Id. at 12; Doc. 18-4 at
14.)
Ultimately, the record is disputed whether WSACC provided
Spears with his first requested accommodation.
In his deposition,
Spears explained that he was not always provided adequate support,
16
noting that Ritchie was often unable to respond to his requests
for assistance.
(Doc. 35 at 17-18.)
Carpenter, on the other hand,
testified that “we were very clear to [Spears] that we would abide
by his weight restrictions, whatever he needed, and he just needed
to let us know and that he had the authority to ask any employee
or manager or supervisor.”
(Doc. 39 at 8.)
Carpenter repeats
this account several times in his deposition.
(Doc. 18-3 at 5-6,
13, 15, 17.)
But
judgment.
this
dispute
does
not
insulate
Spears
from
summary
The parties agree that lifting materials heavier than
20 pounds is a requirement of Spears’ position.
Doc. 18-3 at 20; Doc. 24 at 13.)
(Doc. 18-2 at 6;
In addition, Spears’ written job
description states that “[t]his work requires the regular exertion
of up to 25 pounds of force.”
(Doc. 28-2 at 2.)
Thus, lifting
more than twenty pounds was an essential function of Spears’ job,
and neither of his accommodations would be reasonable.
As the
Fourth Circuit has noted, “requiring assistance for all tasks that
involve lifting more than 20 pounds would reallocate essential
functions, which the ADA does not require.”
E.E.O.C. v. Womble
Carlyle Sandridge & Rice, LLP, 616 F. App'x 588, 592-93 (4th Cir.
2015) (upholding district court’s finding that lifting more than
20 pounds was an essential function of plaintiff’s position, based
“on the [] job description, the judgment of [the defendant’s]
managers,
the
experience
of
17
[plaintiff’s
former
colleagues] . . . ,
and
[the
defendant’s]
proffered
consequences . . . namely that other [employees] would have to
work harder and longer, and the overall flexibility of the team
would be diminished”); Peters v. City of Mauston, 311 F.3d 835,
845 (7th Cir. 2002) (holding that the employee's request that
someone else do the heavy lifting for him was “unreasonable because
it [would] require[ ] another person to perform an essential
function of [the] job”); cf. Martinson v. Kinney Shoe Corp., 104
F.3d 683, 687 (4th Cir. 1997) (“The ADA simply does not require an
employer to hire an additional person to perform an essential
function of a disabled employee's position.”).
Spears’
ADA
failure-to-accommodate
claim
therefore
lacks
merit, and WSACC’s motion for summary judgment as to it will be
granted.
4.
FMLA
Spears also advances a claim for violation of the FMLA. (Doc.
24 at 14-21.)
His complaint alleges that WSACC (1) interfered
with his right to take FMLA leave by terminating him (Doc. 1 at 7,
¶¶ 45-47) and (2) failed to provide FMLA leave “as needed due to
his injury and disabled condition” (id. at 6, ¶ 41, 45).
In his
briefing, Spears restyles these claims by arguing that WSACC
interfered with his FMLA rights to take leave to attend his son’s
medical
appointments,
and
discharged
exercising his rights under the FMLA.
18
him
in
retaliation
(Doc. 24 at 14-21.)
for
The FMLA provides two types of rights and protections to
certain covered employees.
Yashenko v. Harrah's NC Casino Co.,
LLC, 446 F.3d 541, 546 (4th Cir. 2006).
First, covered employees
who elect to take a leave of absence for family or medical reasons
qualify
for
several
entitlements,
including
“a
total
of
12
workweeks of leave during any 12–month period” for family- and
health-related matters, 29 U.S.C. § 2612(a)(1), and have a right
“to be restored by the employer to the position of employment held
by the employee when the leave commenced” or to “an equivalent
position with equivalent employment benefits, pay, and other terms
and conditions of employment.”
Id. § 2614(a)(1)(A)-(B).
Claims
of alleged violations of these prescriptive rights — known as
“interference” or “entitlement” claims — arise under 29 U.S.C.
§ 2615(a)(1), which states that “[i]t shall be unlawful for any
employer to interfere with, restrain, or deny the exercise of or
the attempt to exercise, any right provided under this subchapter.”
Second, the FMLA “protect[s] employees from discrimination or
retaliation for exercising their substantive rights under the
FMLA.”
Yashenko, 446 F.3d at 546 (citations omitted).
Claims
alleging violations of these rights are commonly referred to as
“retaliation” or “discrimination” claims.
Id.
These rights arise
under 29 U.S.C. § 2615(a)(2), which states that “[i]t shall be
unlawful for any employer to discharge or in any other manner
19
discriminate against any individual for opposing any practice made
unlawful by this subchapter.”
With this background, the court turns to each claim.
a.
Interference
Spears alleges that WSACC interfered with his FMLA rights
when it failed to provide him with FMLA leave time.
45, 46, 47.)
(Doc. 1 ¶¶ 41,
WSACC counters that Spears never pleaded this claim
and never “filled out the paperwork to take FMLA leave or requested
FMLA leave even though he was aware of the process for doing so.”
(Doc. 42 at 7.)
To proceed on an interference claim asserting a violation of
substantive rights under the FMLA, a plaintiff “bears the burden
of proof in establishing that he is entitled to the benefit at
issue under the statute.” Yashenko, 446 F.3d at 549 (citing Rhoads
v. FDIC, 257 F.3d 373, 384 (4th Cir. 2001)).
In addition, “[a]n
employee is mandated to provide notice to her employer when she
requires FMLA leave.”
Brushwood v. Wachovia Bank, N.A., 520 F.
App'x 154, 157 (4th Cir. 2013) (quoting Rhoads, 257 F.3d at 381–
82 (footnote omitted)). Proper notice “‘make[s] the employer aware
that the employee needs FMLA-qualifying leave, and the anticipated
timing and duration of the leave.’” Rhoads, 257 F.3d at 382–83
(quoting 29 C.F.R. § 825.302(c)).
“The employee, however, need
not expressly assert rights under the FMLA or even mention the
FMLA, but may only state that leave is needed.” Id.; see also 29
20
C.F.R. § 825.303(b) (providing similar notice requirements for
unforeseeable FMLA leave). Indeed, employees need only give verbal
notice “sufficient to make the employer aware that the employee
needs
FMLA–qualifying
leave,
duration of the leave.”
and
the
anticipated
timing
and
29 C.F.R. § 825.302(c) (noting that an
FMLA-qualifying event includes “a condition [that] renders the
employee unable to perform the functions of the job”); 29 C.F.R.
§ 825.301(b) (“An employee giving notice of the need for FMLA leave
must explain the reasons for the needed leave so as to allow the
employer to determine whether the leave qualifies under the Act.”).
As
the
Fourth
Circuit
has
explained,
“no
‘magic
necessary to invoke the protections of the FMLA.”
Pfizer, Inc., 558 F.3d 284, 293 (4th Cir. 2009).
question
is
how
the
information
reasonably interpreted.”
conveyed
to
the
words’
are
Dotson v.
“The critical
employer
is
Sarnowski v. Air Brooke Limousine, Inc.,
510 F.3d 398, 402 (3d Cir. 2007).
“Once the employee has provided
at least verbal notice of a serious health condition sufficient to
alert the employer to the fact that the protections of the FMLA
may apply, ‘[t]he employer should inquire further to ascertain
whether it is FMLA leave that is being sought and to obtain further
details of this leave.’”
Brushwood, 520 F. App'x at 157 (quoting
Rhoads, 257 F.3d at 383).
Here, Spears’ various claims fail for several reasons.
His
arguments based on his son’s medical appointments are outside the
21
pleadings.
The complaint alleges a failure to provide FMLA leave
based only on Spears’ “injury and disabled condition.”
7,
¶¶ 45-47.)
involving
judgment.
his
Spears
son
in
is
attempting
response
to
to
raise
WSACC’s
an
motion
(Doc. 1 at
FMLA
for
claim
summary
But he cannot raise new claims after discovery unless
he amends his complaint, which he has not done.
Wahi v. Charleston
Area Med. Ctr., Inc., 562 F.3d 599, 617 (4th Cir. 2009); Hexion
Specialty Chemicals, Inc. v. Oak-Bark Corp., No. 7:09-CV-105-D,
2011 WL 4527382, at *7-11 (E.D.N.C. Sept. 28, 2011).
His claims
involving his son will be dismissed on this ground.
As to his interference claim regarding his back injury, this
claim fails because Spears is unable to establish that he ever
asked for or sought time off because of it.
In fact, on multiple
occasions Spears adamantly denies ever seeking FMLA leave.
18-4 at 18, 20, 25-27.)
(Doc.
For example, as to his back injury, when
asked if he filled out the paperwork to take FMLA time, he
responded:
“No.
I’ve
used
medical
shoulder, knee, but not at this time.
major issue.
at
8.)
in
times
coworkers
requested FMLA leave time.
also
of
past,
There was, there was no
I mean, it was a, it was a back sprain.”
Spears’
Doc. 40 at 6.)
leave
testified
that
(Doc. 37
Spears
never
(Doc. 18-2 at 16-17; Doc. 18-3 at 24;
While Spears takes issue with his inability to use
the “comp time” that he had acquired over his years of service,
(Doc. 18-4 at 17-20), his decision not to exercise his rights under
22
the FMLA prevents him from now arguing that WSACC interfered with
his doing so.
For similar reasons, as to his son’s medical
appointments, there is no evidence that Spears ever sought FMLA
leave before attending any of them, or that he even advised his
supervisors until well afterwards, when his unexplained absences
were made a ground of his evaluation.
(See Doc. 24 at 20.)
For all these reasons, the court will grant WSACC’s motion
for summary judgment on Spears’ claim for FMLA interference. 3
b.
Retaliation
With respect to his claim of FMLA retaliation, Spears argues
that WSACC terminated him for being absent from work while he was
taking his son to medical appointments.
(Doc. 24 at 14-21.)
Spears also contends that WSACC failed to give him notice of his
rights under the FMLA when he elected to take this leave.
20.)
(Id. at
As with the interference claim, WSACC argues that Spears
never requested FMLA leave and never pleaded this claim in his
complaint.
(Doc. 42 at 7.)
3
In addition, as noted above, WSACC has produced sufficient evidence
that it terminated Spears because it believed he was committing fraud
and violating its trust. (Doc. 18-2 at 9; Doc. 31 at 18.) This further
illustrates the weakness of Spears’ FMLA interference claim. Mercer v.
Arc of Prince Georges Cty., Inc., 532 F. App'x 392, 397 (4th Cir. 2013)
(affirming grant of summary judgment for employer where it submitted
sufficient evidence that it would have terminated employee regardless
of her FMLA leave); Kariotis v. Navistar Int'l Transp. Corp., 131 F.3d
672, 680–81 (7th Cir. 1997) (holding that there is no FMLA interference
claim where employer discharges employee based on honest belief that
employee is not taking FMLA for approved purpose).
23
WSACC is correct.
As noted above, Spears’ complaint fails to
allege a retaliation claim involving his son; rather, this argument
is raised in response to WSACC’s motion for summary judgment.
Because it is too late to raise new grounds absent amendment of
the complaint, this claim fails.
Wahi, 562 F.3d at 617; Hexion
Specialty Chemicals, 2011 WL 4527382, at *7-11.
Even if this were not so, Spears’ claim would also fail as a
matter of law.
Spears contends that he alerted WSACC to his son’s
medical needs 4 when he filed a grievance in response to his 2013
performance evaluation.
(Doc. 24 at 15-16.)
included this grievance letter in the record.
But Spears has not
Fed. R. Civ. P.
56(c)(1) (“A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by: citing to particular parts
of materials in the record.”); Local Rules 7.2(a) and 56.1(e).
Moreover, even if Spears could demonstrate a prima facie case,
namely “that he engaged in protected activity, that the employer
took adverse action against him, and that the adverse action was
causally connected to the plaintiff's protected activity,” Cline
v. Wal–Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998), WSACC
has responded by “offer[ing] a non-discriminatory explanation” for
4
According to Spears, his son suffered a shoulder injury that required
several medical appointments, surgery, and physical therapy. (Doc. 24
at 15-16.) The court will assume that this meets the definition of a
“serious medical condition” under the ADA, 29 C.F.R. § 825.113, as it
appears that the condition required continuing treatment, as defined in
29 C.F.R. § 825.115.
24
the termination, which returns the burden to Spears to “establish[]
that the employer’s proffered explanation is pretext for FMLA
retaliation,” Nichols v. Ashland Hosp. Corp., 251 F.3d 496, 502
(4th Cir. 2001); see also Yashenko, 446 F.3d at 551.
Spears
concedes: "It is undisputed that the sole reason [WSACC] terminated
the
Plaintiff’s
employment
was
because
[WSACC]
alleged
the
Plaintiff committed WC insurance fraud." (Doc. 24 at 14.) Because
Spears
cannot
demonstrate
pretext,
for
the
above, WSACC is entitled to summary judgment.
at
551
(affirming
introduced
grant
evidence
of
summary
consistent
reasons
Yashenko, 446 F.3d
judgment
with
discussed
after
employer’s
plaintiff
legitimate
nondiscriminatory reason for termination). 5
For all these reasons, WSACC’s motion for summary judgment as
to Spears’ FMLA retaliation claim will be granted.
C.
State Law Claims
Having granted summary judgment on Spears’ federal claims,
the court has “wide latitude in determining whether or not to
retain jurisdiction over [the remaining] state claims.”
5
Shanaghan
Moreover, the crux of the problem in the 2013 performance evaluation
was Spears’ failure to mention his son’s medical needs until after Spears
had missed work on several occasions and received the evaluation,
preventing WSACC from ascertaining whether he was exercising his rights
under the FMLA while away from work. Indeed, WSACC employees testified
that they did not know why Spears was frequently absent from work. (Doc.
40 at 2-3.)
Spears himself affirmed that he did not request FMLA
leave despite understanding how to do so.
(Doc. 18-4 at 25-27.)
Thus, because Spears has failed to show that WSACC was aware that he was
taking FMLA time, he cannot prove that his discharge was “causally
connected to [his] protected activity.” Cline, 144 F.3d at 301.
25
v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995); see 28 U.S.C.
§ 1367(a),
(c)(3).
In
determining
whether
to
exercise
supplemental jurisdiction under 28 U.S.C. § 1367, the district
court should consider the “convenience and fairness to the parties,
the existence of any underlying issues of federal policy, comity,
and considerations of judicial economy.”
110 (citation omitted).
Shanaghan, 58 F.3d at
The doctrine of supplemental jurisdiction
“is a doctrine of flexibility, designed to allow courts to deal
with
cases
involving
pendent
claims
in
the
manner
sensibly accommodates a range of concerns and values.”
Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988).
that
most
Carnegie–
A federal court
may decline supplemental jurisdiction, however, when a state claim
“raises a novel or complex issue of State law” or “substantially
predominates” over federal claims.
Here,
it
is
appropriate
for
See 28 U.S.C. § 1367(c).
the
court
to
exercise
its
discretion under 28 U.S.C. § 1367(c) and retain jurisdiction over
Spears’ State law claims.
Spears sought review in federal court
from the outset, so a decision by this court on his State claims
would hardly be unfair.
(Doc. 1.)
In addition, his State law
claims arise from the same facts as his federal claims, making
determination by this court more convenient for the parties and
most sensible when considering judicial economy.
Finally, Spears’
State law claims do not raise novel or complex issues of State law
or substantially predominate over federal claims.
26
1.
REDA
REDA prohibits the discharge of an otherwise terminable-atwill employee in retaliation for various protected activities,
such as filing a claim for worker’s compensation.
Stat. § 95-241(a)(1)(a).
See N.C. Gen.
To state a claim under REDA, a plaintiff
must show that “(1) he exercised his right to engage in a protected
activity, such as filing a workers' compensation claim; (2) he
suffered an adverse employment action, and (3) a causal connection
exists between the exercise of the protected activity and the
alleged retaliatory action.”
Smith v. Computer Task Grp., Inc.,
568 F. Supp. 2d 603, 613 (M.D.N.C. 2008) (citing Wiley v. United
Parcel Serv., Inc., 164 N.C. App. 183, 186, 594 S.E. 2d 809, 811
(2004)). If a plaintiff presents a prima facie case of retaliatory
termination, the burden shifts to the defendant to show, by a
preponderance of the evidence, that it “would have taken the same
unfavorable action in the absence of the protected activity of the
employee.”
Smith, 568 F. Supp. 2d at 613 (citing 10 N.C. Gen.
Stat. § 95–241(b)). “Although evidence of retaliation . . . may
often
be
completely
circumstantial,
the
causal
nexus
between
protected activity and retaliatory discharge must be something
more than speculation.”
Smith, 568 F. Supp. 2d at 613 (citing
Swain v. Elfland, 145 N.C. App. 383, 387, 550 S.E.2d 530, 534
(2001)).
WSACC argues that Spears cannot establish a prima facie case
27
under REDA because he cannot prove a causal connection between the
filing of his workers’ compensation claim and his termination.
(Doc. 18 at 13-14.)
In addition, WSACC contends that – even if
Spears were to establish a prima facie claim under REDA – WSACC’s
allegations of Spears’ fraud show that it would have terminated
him regardless of his workers’ compensation claim.
In
response,
Spears
argues
that
the
(Id. at 14.)
temporal
proximity
between the filing of his workers’ compensation claim (on or about
September
16,
2013)
and
his
termination
establishes causation under REDA.
(October
(Doc. 24 at 3.)
14,
2013)
In addition,
he argues that WSACC cannot prove that it would have terminated
him even if his workers’ compensation claim had not been filed,
noting that WSACC can only “point[] to one single reason for
terminating Spears’ employment.”
(Id. at 5.)
Finally, Spears
argues that WSACC failed to follow its progressive disciplinary
procedures before terminating him.
(Id.)
The court agrees with WSACC. Even assuming, without deciding,
that Spears has made out a prima facie REDA claim, the fact that
WSACC cited the “single reason” it did for terminating Spears
suffices to meet its burden under REDA.
Wiley v. United Parcel
Serv., Inc., 102 F. Supp. 2d 643, 650-51 (M.D.N.C. 1999), aff'd,
11 F. App'x 176 (4th Cir. 2001) (explaining that once the employer
“articulates a legitimate nondiscriminatory reason” the burden
shifts to the employee to show that the given reason was a pretext
28
for retaliation (citing Evans v. Technologies Applications & Serv.
Co., 80 F.3d 954, 959 (4th Cir. 1996) (emphasis added) (quotation
omitted)).
In addition, Spears’ allegation that WSACC failed to
follow its progressive disciplinary procedures before terminating
him is inapposite here, especially given the stated reason of
fraudulent activity.
“[A federal court] does not sit as a kind of
super-personnel department weighing the prudence of employment
decisions made by firms charged with employment discrimination.”
DeJarnette v. Corning Inc., 133 F.3d 293, 298–99 (4th Cir. 1998)
(quotations and citations omitted)); see also EEOC v. Clay Printing
Co., 955 F.2d 936, 946 (4th Cir. 1992).
In addition, as noted
above, Spears has failed to make a sufficient showing that WSACC’s
reason
for
terminating
him
was
pretextual.
The
court
will
therefore grant summary judgment for WSACC on Spears’ REDA claim.
2.
North Carolina Public Policy
Spears concedes that his claim for violation of North Carolina
public policy is “dependent on the REDA claim.”
(Doc. 24 at 21.)
Because the court will grant summary judgment for WSACC on Spears’
REDA claim, the court will also grant summary judgment for WSACC
on Spears’ claim under North Carolina public policy.
III. CONCLUSION
For the reasons stated, the court finds that the record
reflects no genuine dispute as to any material fact and that WSACC
is entitled to judgment as a matter of law.
29
IT IS THEREFORE ORDERED that WSACC’s motion for summary
judgment (Doc. 17) is GRANTED and this action is DISMISSED WITH
PREJUDICE.
/s/
Thomas D. Schroeder
United States District Judge
May 24, 2017
30
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