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May v. The Remedy Diner, Inc.

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

May 25, 2017

WILLIAM MAY, Plaintiff,



         This 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.


         In 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 ¶ 9].

         After 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].

         When 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].

         On 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].

         According 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 ¶ 20].

         According 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].

         Plaintiff 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].

         Plaintiff 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. No. 15].

         Plaintiff 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].

         On June 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) ...

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