United States District Court, W.D. North Carolina, Charlotte Division
ORDER AND NOTICE OF HEARING
D. WHITNEY, CHIEF UNITED STATES DISTRICT JUDGE.
MATTER is before the Court upon Defendant John J.
Jordan's Motion for Summary Judgment (Doc. No. 15) and
Defendant McClatchy Newspapers, Inc.'s Motion for Summary
Judgment (Doc. No. 16). The parties have fully briefed both
dispositive motions. The motions are now ripe for the
Court's determination. The Court has reviewed the
motions, briefs, exhibits thereto, and applicable
For the reasons stated herein, the Court DENIES Defendant
John J. Jordan's ("Jordan") Motion for Summary
Judgment (Doc. No. 15) and Defendant McClatchy Newspapers,
Inc.'s ("McClatchy") Motion for Summary
Judgment (Doc. No. 16).
judgment shall be granted "if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). The movant "bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue
of material fact." Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986) (internal citations omitted); see
also Fed.R.Civ.P. 56(a), (c). The nonmoving party
then bears the burden of showing a genuinely disputed
material fact by "citing to particular parts of
materials in the record" or by "showing that the
materials cited do not establish the absence . . . of genuine
dispute[.]" Fed.R.Civ.P. 56(c).
factual dispute is genuine "if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). "A fact is material if it
'might affect the outcome of the suit under the governing
law.'" Libertarian Party of Va. v. Judd,
718 F.3d 308, 313 (4th Cir. 2013) (quoting Anderson,
477 U.S. at 248). The court must "view the evidence in
the light most favorable to the nonmoving party."
Jacobs v. N.C. Administrative Office of the Courts,
780 F.3d 562, 568 (4th Cir. 2015) (citations omitted).
McClatchy moved for summary judgment on all claims asserted
against it.(Doc. No. 16). McClatchy argues that
Plaintiffs claims for wrongful discharge and disparate
treatment under the Americans with Disabilities Act
("ADA") fail because Plaintiff has failed to show
satisfactory performance as required for a prima facie case.
(Doc. No. 16-1 at 1). McClatchy also asserts Plaintiff cannot
show causation for her retaliation claim under the ADA. (Doc.
No. 16-1 at 1). McClatchy "does not dispute that
requesting a reasonable accommodation is a protected activity
and that Defendant McClatchy terminated Plaintiff s
employment." (Doc. No. 16-1 at 20).
Jordan claims entitlement to summary judgment to Plaintiffs
claim of tortious interference with contract because
Plaintiff has failed to show that Jordan, as a non-outsider,
acted with legal malice. (Doc. No. 15-1 at 1, 12-13).
the evidence in the light most favorable to Plaintiff, the
Court concludes a dispute of material fact exists as to each
of Plaintiffs claims. Days prior to initiating Plaintiffs
Performance Improvement Plan on May 1, 2015
("PIP"), Defendant Jordan emailed human resources
listing one of his concerns with Plaintiffs performance as
her difficulty traveling because of her vertigo. (Docs. No.
24-6, 24-10). The PIP indicated Plaintiff may be terminated
after the 90-day period of the PIP if she failed to improve
her performance. (Doc. No. 24-10). The PIP also required
Plaintiff to stop working from home and to begin working from
the Charlotte Observer office on June 1, 2015. (Doc. No.
24-10). After receiving the PIP, Plaintiff contacted human
resources to formally apply for an accommodation to work from
home due to her disability. The 90-day probationary period
for the PIP subsequently expired on August 1, 2015 without
any further discipline or termination. During this 90-day
period, Jordan's email to human resources acknowledged
that Plaintiff had addressed some areas of concern. (Doc. No.
August 28, 2015, human resources granted Plaintiffs
accommodation request to work from home. (Doc. No. 24-13). A
few weeks later, Defendant Jordan indicated he wanted to
proceed with Plaintiff s termination. (Doc. No. 24-14).
Jordan then issued a letter acknowledging that the PIP had
ended and Plaintiff had made improvements. (Doc. No. 24-15).
The letter explained that Jordan did not address Plaintiffs
performance until working through the "work
accommodation issue." (Doc. No. 24-15). The letter
indicated that Defendants "intend to extend the [PIP]
four more weeks" and terminate her "if there is no
significant improvement" or Plaintiff could "agree
to separate" and McClatchy would provide transitional
pay and subsidize her health care. (Doc. No. 24-15).
Plaintiff did not agree to separate at that time. After the
four week extension ended, Jordan on behalf of McClatchy
terminated Plaintiff. (Doc. No. 24-17). Jordan's letter
terminating Plaintiff indicated she had made progress in some
areas and received praise for her work from the Charlotte
Observer office but cited as grounds for termination the
continued decline of the dealsaver program and her below
standard leadership. (Doc. No. 24-17). Jordan acknowledges
that after Plaintiff s termination, the dealsaver program
continued to decline and the employees with responsibility
for the program were not terminated. (Doc. No. 24-1 at
light of this evidence, there are material questions of fact
as to whether Plaintiff was performing her job at a level
that met her employer's legitimate expectations, whether
Defendant McClatchy's justification for Plaintiffs
termination was pretextual, and whether a causal connection
existed between Plaintiffs termination and her request for a
reasonable accommodation. It also creates a material question of
fact as to whether Defendant Jordan acted with legal malice.
Legal malice occurs when the non-outsider "does a
wrongful act or exceeds his legal right or authority . . .
." Bloch v. Paul Revere Life Ins. Co., 547
S.E.2d 51, 60 ( N.C. Ct. App. 2001) (citations and quotations
omitted); see also Childress v. Abeles, 84 S.E.2d
176, 182 ( N.C. 1952) (defining legal malice as the
"intentional doing of the harmful act without legal
justification"); Lenzer v. Flaherty, 418 S.E.2d
276, 286 ( N.C. Ct. App. 1992) ("The qualified privilege
of a non-outsider is lost if exercised for motives other than
reasonable, good faith attempts to protect the
non-outsider's interests in the contract interfered
with."). Therefore, the Court DENIES Defendant McClatchy
and Defendant Jordan's Motions for Summary Judgment.
upon review of the record, it appears that the EEOC charge
filed by Plaintiff is not on the record. See Fed.R.Civ.P.
12(h)(3); Jones v. Calvert Group. Ltd., 551 F.3d
297, 300 (4th Cir. 2009) (holding that a failure to exhaust
administrative remedies deprives federal courts of subject
matter jurisdiction). As alleged, Plaintiff was terminated on
October 30, 2015. Plaintiff then filed an EEOC charge, number
430-2016-1137, and received a notice of right to sue letter
on January 31, 2017. Plaintiff amended her complaint on June
23, 2017 to add claims pursuant to the Americans with
Disabilities Act, 42 U.S.C. § 12101, et seq.
Therefore, the Court ORDERS Plaintiff to file her EEOC Charge
and Notice of Right to Sue on or before March 16, 2018.
Failure to furnish the Court with the EEOC Charge and Notice
of Right to Sue may result in dismissal of Plaintiffs
complaint for lack of subject matter jurisdiction.
1. Defendant John J. Jordan's Motion for Summary Judgment
(Doc. No. 15) is DENIED.
2. Defendant McClatchy Newspapers, Inc.'s Motion for
Summary Judgment (Doc. ...