United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
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.
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
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.
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.
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].
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.
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. 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].
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.
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.
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).
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