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 under Rule 56 of the Federal Rules of Civil
Procedure. [DE 59]. The matter has been fully briefed and is
ripe for ruling. For the reasons discussed below
defendant's motion for summary judgment is granted.
August 2014, plaintiff began working for defendant, a North
Carolina Corporation with its principal place of business in
Raleigh, North Carolina. [DE 1-1, Complaint at ¶¶
2-4, 9]. Plaintiff was employed as a kitchen worker for
defendant, receiving $9.00 an hour. [DE 1-1, Complaint at
he was hired by defendant, plaintiff informed the management
of the diner that he was epileptic. [DE 1-1, Complaint at
¶¶ 10-11; DE 27-2, May Aff. at ¶ 7; DE 25-4,
Verif. and Decl. of the Remedy Diner, Inc. at ¶ 5].
According to plaintiff, this condition is a disability and
has a significant effect on plaintiffs daily activities as he
suffers from unexpected seizures. [DE 27-2, May Aff. at
¶¶ 4 & 5]. These seizures are generally short
but do affect plaintiffs ability to work while they are
occurring. [DE 27-2, May Aff. at ¶¶ 5 & 6].
Plaintiff states that he is able to recover quickly from
these seizures and perform required work before and after
these seizures. [DE 27-2, May Aff. at ¶ 5]. Plaintiff
states that he informed his managers that, due to his
epilepsy, he may require additional breaks throughout a work
shift or time off in order to seek medical treatment. [DE
27-2, May Aff. at ¶ 7].
plaintiff suffered a seizure between Thanksgiving and
Christmas in 2014, defendant allowed plaintiff to miss his
scheduled work shift in order to' recover. [DE 27-2, May
Aff. at ¶ 9]. Plaintiff was able to return to work for
his next scheduled shift without any consequences. [DE 27-2,
May Aff. at ¶ 10].
Friday, January 16, 2015, plaintiff suffered a seizure while
working at the diner. Wake County EMS was summoned to address
plaintiffs condition and took him to WakeMed Hospital. [DE
1-1, Complaint at ¶13-14]. This seizure caused plaintiff
to fall forward, hit his head, and bite his lip. [DE 27-2,
May Aff. at ¶ 11]. The following day, on January 17,
2015, plaintiff was discharged from the hospital with a note
stating that he could return to work on Sunday, January 18,
2015 with no restrictions. [DE 25-1 at 12; DE 27-2, May Aff.
at ¶ 13].
to plaintiff, he contacted one of his managers, Mr. Jason
Lloyd, after his seizure and inquired as to what he would
need to do in order to return to work. [DE 27-2, May Aff. at
¶¶ 15, 16 & 17]. Mr. Lloyd informed plaintiff
that he would need a doctor's note stating he was cleared
to return to work. Plaintiff states that he was not informed
he would need to find replacements for his shifts while he
was in the hospital and not permitted to work by his doctor.
[DE 27-2, May Aff. at ¶ 17]. According to the complaint,
plaintiff attempted to return to work between January 20 and
January 23. [DE 1-1, Complaint at ¶ 19]. The parties
agree that, upon his attempted return, plaintiff was told by
management that he had been terminated and a replacement for
his position had already been hired. [DE 1-1, Complaint at
to defendant, plaintiff missed two weekend shifts after his
seizure. Also according to defendant, Mr. Lloyd attempted to
contact plaintiff multiple times, leaving voicemail messages
and asking if plaintiff wished to continue his employment,
but plaintiff did not answer or return Mr. Lloyd's phone
calls. Mr. Scott Williams also attempted to contact
plaintiff. Defendant then assumed plaintiff quit, and Mr.
Lloyd filled the position. [DE 25-2, Def's Resp. to
PL's Interrog. No. 4]. Accordingly, defendants contend
that plaintiff was terminated for repeated absenteeism during
this time. [DE 25-2, Def.'s Resp. to PL's Interrog.
No. 4]. Defendant asserts that plaintiff was fired not for
any discriminatory reason but for missing shifts he had been
scheduled to work between January 20, 2015 and January 25,
2015 and plaintiffs failure to inform defendant of his
intention to return to work after being cleared by his
doctor. [DE 25-4, Verif. and Decl. of the Remedy Diner, Inc.
at ¶¶ 4 & 6; DE 25-2, Def.'s Resp. to
PL's Interrog. No. 4 & 11].
asserts that, around the time of his termination, he returned
to defendant's restaurant and spoke with one of
defendant's kitchen managers. [DE 27-2, May Aff. at
¶ 27]. During this conversation, plaintiff expressed he
was displeased with how his seizure and subsequent
termination were being handled. [DE 27-2, May Aff. at ¶
28]. Plaintiff also told the kitchen manager he was
interested in receiving all necessary documents and
information in order to file a claim for worker's
compensation due to his injuries. [DE 27-2, May Aff. at
¶¶ 27 & 28]. According to plaintiff, the
kitchen manager replied and asked plaintiff not to file the
worker's compensation claim and informed him that
defendant's management was afraid of being in any legal
or worker's compensation proceedings regarding its
employees. [DE 27-2, May Aff. at ¶29].
also contends that he returned to the restaurant sometime
between January 27 to January 30, and that, during a
conversation that happened between him and an owner, Ms.
Angie Holder, Ms. Holder stated that "the real reason he
was fired was because he was a liability to Remedy Diner on
account of his medical condition." [DE 1-1, Complaint at
¶ 23-24; DE 27-2, May Aff. at ¶ 32]. Defendant
denies this conversation. [DE 10, Answer at ¶¶ 23
& 24; DE 25-2, Def.'s Resp. to Pi's. Interrog.
did not file a claim for workers' compensation insurance
due to the injuries and expenses he sustained on January 16,
2015, and he did not file for unemployment insurance. [DE
1-1, Complaint at ¶ 19; DE 25-3, PL's Resp. to
Def.'s Interrog. No. 11]. Seven weeks later, on March 13,
2015, plaintiff was hired by Bella Empire, LLC at the same
rate of $9.00. [DE 25-1 at 15; DE 27-2, May Aff. at ¶
34]. Plaintiff stopped working with Bella Empire in May 2015.
[DE 25-1 at 21; DE 27-2, May Aff. at ¶ 35].
24, 2015, plaintiff filed a complaint with the U.S. Equal
Employment Opportunity Commission ("EEOC") under
the Americans with Disabilities Act. On November 10, 2015,
the EEOC found no evidence of discrimination and issued a
"right to sue" letter. Plaintiff then filed suit
February 5, 2016 in Wake County Superior Court, alleging: (1)
Violation of the ADA; (2) Violation of Title VII of the Civil
Rights Act of 1964; (3) Violation of the North Carolina
Retaliatory Employment Discrimination Act; and (4) ...