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LaSasso v. Express

United States District Court, E.D. North Carolina, Western Division

April 10, 2017

REX LASASSO Plaintiff,



         This matter is before the Court on defendant's motion for summary judgment in its favor on all claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has responded, defendant has replied, and the matter is ripe for ruling. A hearing was also held on the motion before the undersigned on February 2, 2017, at Raleigh, North Carolina. For the reasons that follow, defendant's motion is granted in part and denied in part.


         Plaintiff filed this action in Wake County Superior Court alleging claims arising under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, and the ADA Amendments Act (ADAAA), Pub. L. No. 110-325; the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201; the North Carolina Wage and Hour Act (NCWHA), N.C. Gen. Stat. § 95-25.1; as well as a common law claim for wrongful discharge in violation of North Carolina public policy. Following defendant's removal of the action to this Court, plaintiff filed with leave of Court and consent of defendant an amended complaint adding an additional claim for unpaid wages under the FLSA and NCWHA.

         Plaintiff was a long-time employee at defendant (FedEx), having begun his employment in October 1991 and working until his termination on April 28, 2014. When his employment was terminated, plaintiff was a Senior Aviation Line Maintenance Technician at FedEx's ramp facility at Raleigh-Durham International Airport. LaSasso Dep. at 18-19. Prior to his termination in 2014, plaintiffs yearly performance reviews reflected that FedEx was consistently satisfied with plaintiffs performance, save for the 2010 review. Langford Dep. at 136 -148. Plaintiff has had Type II diabetes since about 1994 and in 2014 continued to be affected by the disease. LaSasso Dep. at 38; Ryala Dep. at 14. Plaintiffs diabetes causes him to experience hypoglycemic events when his blood sugars are too low, the symptoms of which include irritability, shakiness, and dizziness. LaSasso Dep. at 37-8; Ryala Dep. at 28. To manage his diabetes, plaintiff takes medication and eats at regular intervals. LaSasso Dep. at 40; 188. Plaintiff informed his FedEx supervisors, his manager Joseph Fagan and his human resources advisor Peggy Langford, of his diabetes in the years preceding his termination. Id. at 43.

         In early 2014, plaintiff was informed by a co-worker, Daniel Lester, that Fagan had retroactively reduced the overtime hours that Fagan and plaintiff had worked on their timecards. Plaintiff noticed that, for example, if he had worked four hours of overtime, his timecard reflected that he a worked an amount less than four hours. LaSasso Dep. at 89; Lester Dep. at 23. Plaintiff confronted Fagan about this practice, referred to as "chopping, " noting that fractional reductions would add up to a lot of money over time. LaSasso Dep. at 119; Fagan Dep. at 133. Plaintiff recalls that Fagan told him he would be fired for challenging him on the overtime reporting. LaSasso Dep. at 119. Plaintiff made an anonymous complaint with FedEx's Alert Line regarding Fagan's overtime chopping. FedEx investigated plaintiffs complaint and discovered that Fagan was manually changing timecards and not following FedEx policy. [DE 45-35]; Castro Dep. at 90. Fagan received a warning letter, and later admitted that he had been under pressure to reduce overtime hours at the RDU facility. Fagan Dep. 28; 130.

         Plaintiff contends that following his complaints about Fagan's overtime reductions, Fagan's attitude toward plaintiff changed, becoming hostile and negative. For example, Fagan referred to plaintiff in an email as "absolutely an idiot, " Fagan Dep. at 92, and engaged in an email conversation which included plaintiffs co-workers in which Fagan was disrespectful to plaintiff. See Langford Dep. 180. The human resources manager, Peggy Langford, recommended that Fagan be counseled for this behavior as well as a determination that Fagan had treated plaintiff and Lester differently after both had engaged in similar conduct. Id.; [DE 45-26].

         While plaintiff was employed by FedEx, FedEx used an incremental employee discipline system which was designed to notify employees of performance issues and give them an opportunity to improve. Documented counseling in the Online Documented Compliment/Counseling System (OLCC), as a first step, was not considered discipline. A performance reminder, usually accompanied by an action plan to correct a deficiency, was the first official step in the discipline system. If an employee received a second performance reminder within a twelve month period, the employee's manager may determine to couple that second performance reminder with a decision day. Generally warranted when an employee fails to improve performance after the first reminder, a decision day is a day of paid leave during which the employee may decide whether he wants to remain employed with FedEx. See Watson Dep. at 10-16; Langford Dep. at 24-27. Warning letters could be issued by a manager to address conduct concerns. Watson Dep. at 24. FedEx policy provided that receipt by an employee of either three performance reminders, three unsatisfactory performance reviews, or a combination of three performance reminders and conduct letters within a twelve month period would be grounds for termination. Watson Dep. at 17.

         Beginning in February 2014 and continuing to plaintiffs termination that April, plaintiff began receiving increasingly severe discipline from Fagan, culminating in two simultaneous but separate performance reminders issued on April 7, 2014.[1] Also on April 7, 2014, at approximately 4:00 p.m., human resources manager Langford met with plaintiff regarding his anonymous Alert Line complaint regarding Fagan's overtime adjustments as well as other complaints. Langford Decl. at 58-60. Following their meeting, Langford advised plaintiff that Fagan wished to speak with him. Fagan and plaintiff met at approximately 5:30 p.m., during which time Fagan issued the first performance reminder to plaintiff based on vehicle accidents. Plaintiff did not agree with the basis for the performance reminder but signed the paperwork indicating that he had received it. Fagan then delivered the second performance reminder, reading the document aloud and describing the decision day portion of the discipline. Plaintiff felt ambushed by the second performance reminder. Plaintiff had not eaten since approximately 12:30 p.m. and began to feel nauseated, hot, and lightheaded. As Fagan was describing the decision day process, plaintiff pushed back his chair and shouted "I can't take this anymore. I have diabetes." Plaintiff informed Fagan that Fagan stressed plaintiff out and was causing plaintiffs medical issues. Plaintiff told Fagan that he would report him to the Federal Aviation Administration (FAA) and Occupational Safety and Health Administration (OSHA). Plaintiff then slammed his portfolio on the desk and walked out of the conference room. LaSasso Dep. at 133-34; Fagan Dep. at 72; [DE 45-30]. In Fagan's documentation of the meeting, he recalled that plaintiff was screaming, struck his hand down on the table multiple times, and leaned over-aggressively at Fagan stating "bring it on" and "I am gonna get you!". [DE 45-30].

         Once plaintiff left the conference room he proceeded down the hall to the office of Tom Maxwell, a senior manager. When plaintiff entered Maxwell's office Maxwell was on the phone; Maxwell, plaintiff, Langford, and Fagan were subsequently in the hall outside of Maxwell's office where plaintiff told Maxwell he thought Fagan and Langford were out to get him. An alarm on plaintiffs cell phone then went off, reminding plaintiff that he needed to eat. Plaintiff showed the alarm to Langford and Fagan. Fagan took plaintiffs identification card, suspended plaintiff with pay, and asked plaintiff to leave the facility. Plaintiff was escorted to his locker where he retrieved some personal belongings and left the building; shortly after leaving plaintiff returned to his desk to get his lunch, part of which he consumed in his car to allow him to be clear-headed enough to drive. LaSasso Dep. at 136, 145-46; Langston Dep. at 86; 96; Fagan Dep. at 73-4.

         On April 10, 2014, a workplace violence report was completed regarding the April 7 events. Castro Decl. ¶ 6. Plaintiffs supervisors Fagan and Castro along with representatives from human resources then reviewed the April 7, 2014, incident and discussed plaintiffs future employment at FedEx. On Fagan's recommendation, plaintiffs employment was terminated. Langford Dep. at 123.


         A motion for summary judgment may not be granted unless there are no genuine issues of material fact for trial and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If that burden has been met, the non-moving party must then come forward and establish the specific material facts in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). In determining whether a genuine issue of material fact exists for trial, a trial court views the evidence and the inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007). However, "[t]he mere existence of a scintilla of evidence" in support of the nonmoving party's position is not sufficient to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). "A dispute is genuine if a reasonable jury could return a verdict for the nonmoving party.... and [a] fact is material if it might affect the outcome of the suit under the governing law." Libertarian Party of Virginia v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (internal quotations and citations omitted). Speculative or conclusory allegations, however, will not suffice. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002).

         At the outset, the Court notes that plaintiff does not contest the entry of summary judgment in defendant's favor on plaintiffs FLSA and NCWHA claims. Accordingly, defendant's motion as to those claims is GRANTED. Plaintiff does contest entry of summary judgment on his ...

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