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Boone v. Board of Governors of University of North Carolina

United States District Court, M.D. North Carolina

June 17, 2019

ANNIE BOONE, Plaintiff,



         Plaintiff, Annie Boone, initiated this action against Defendant, the Board of Governors of the University of North Carolina (“UNC”), alleging four claims: (1) failure to accommodate under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq.; (2) failure to accommodate under the Rehabilitation Act, 29 U.S.C. § 794 et seq.; (3) retaliation under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq.; and, as an alternative to her first and second claims, (4) interference under the FMLA, 29 U.S.C. § 2601 et seq. (ECF No. 1.) On March 30, 2018, this Court entered a Memorandum Opinion and Order (“2018 Order”) dismissing Plaintiff's first and fourth claims, leaving only Plaintiff's Rehabilitation Act claim and Plaintiff's FMLA retaliation claim. (ECF No. 15 at 16.) Before the Court are Defendant's Motion for Summary Judgment with respect to the two remaining claims, (ECF No. 33), and Defendant's Motion to Seal, (ECF No. 35). For the reasons outlined below, the Court will grant both motions.

         I. BACKGROUND

         Plaintiff applied for a position as a police officer at UNC in March 2012 and started working shortly thereafter. (See ECF No. 40-1.) Her job duties included patrolling UNC's Chapel Hill campus, responding to service calls, investigating criminal activity, making arrests, and training other officers in the field. (ECF No. 34-1 at 18-21.) She also carried a variety of weapons as part of her job, including a 40-caliber SIG SAUER pistol, a taser, a shotgun, and a rifle. (Id. at 19-20.)

         In May 2015, Boone spent a weekend in South Carolina with a male friend. (Id. at 44- 45.) Plaintiff states that, during that weekend, the man raped her. (Id.) Although Plaintiff received treatment in an emergency room a day later, (id. at 47-48), she did not report the rape to law enforcement or to her primary physician because she “just wanted to deal with it in [her] way and move on, ” (id. at 50-51).

         In August 2015, Plaintiff attended a Highway Safety Symposium in Concord, North Carolina with several co-workers from UNC. (Id. at 56-57.) One night during the multi-day conference, Plaintiff became very intoxicated and missed the morning session the following day. (Id. at 59, 61.) The day after she returned from the conference, Plaintiff confided in a co-worker that she “was having some concerns about [her] ability to do [her] job with the mindset that [she] was in.” (Id. at 63.) Approximately one week later, on August 28, 2015, Plaintiff was placed on a 30-day Investigatory Status with Pay to investigate Plaintiff's absence from the symposium and “[t]o allow time to receive [a] Fitness for Duty assessment.” (Id. at 68; ECF No. 34-2 at 41.)

         Plaintiff was directed to complete a Fitness for Duty Evaluation (“FFDE”) with the FMRT Group (“FMRT”) on September 1, 2015. (ECF No. 34-2 at 42.) FMRT evaluators are doctoral-level psychologists and advanced-practice medical providers who are trained in providing “medical and psychological evaluations for safety-sensitive employers, such as law enforcement, corrections, and juvenile justice departments.” (ECF No. 34-11 ¶ 4(a).) During Plaintiff's September 1, 2015 FFDE, after she told the psychologist administering the exam about her May 2015 sexual assault, the evaluation determined that she was “not fit for duty” due to her being “in the beginning stages of dealing with a traumatic event that has left her emotionally distraught.” (Id. at 42-44.)

         Plaintiff remained on leave and on October 16, 2015, saw her healthcare provider, Karen McCain, N.P.[1] (ECF No. 34-1 at 74.) At that visit, Nurse McCain recorded that Plaintiff was experiencing “[m]oderate depression” along with “crying episodes, extreme fatigue and [loss of] energy and was socially withdrawn.” (ECF No. 34-5 at 14-15.) Plaintiff had lost ten to fifteen pounds, and her hair was thinning. (Id. at 17.) Plaintiff did not tell Nurse McCain about her sexual assault during that appointment, nor at any time before this litigation. (ECF No. 34-1 at 78; see ECF No. 34-5 at 16, 24.) As a result of the appointment, Nurse McCain recommended that Plaintiff seek “specialized” and “intensive” therapy, in addition to telephonic counseling sessions every two weeks with Nurse McCain. (ECF No. 34-5 at 18, 20.) Nurse McCain also completed the necessary forms for Plaintiff to be awarded FMLA leave retroactively starting September 28, 2015, when her paid investigative leave ended, to December 18, 2015. (See ECF No. 34-2 at 48.)

         Plaintiff was granted some additional unpaid leave, and on January 6, 2016, she was again seen by Nurse McCain. (Id. at 54; ECF No. 34-7 ¶ 26.) As a result of that appointment, Nurse McCain found that Plaintiff “ha[d] recovered back to baseline, and [was] acceptable to return to work without any physical limitations or restrictions.” (ECF No. 34-2 at 54.)

         Before she could return to work, however, UNC asked that Plaintiff sit for another FFDE. (ECF No. 34-7 ¶ 27.) Plaintiff's January 8, 2016 follow-up FFDE found that she was again “not fit for duty.” (ECF No. 34-11 at 48-50.) During the FFDE, Plaintiff reflected that her sexual assault makes her “feel[ ] guarded, avoid[ ] situations that make her feel vulnerable, and that she now has ‘a hole in [her] armor.'” (Id. at 49.) Boone reported that, since her first FFDE in September, she had only seen her healthcare provider, Nurse McCain, twice and that she had not otherwise received any psychotherapy from a licensed practitioner.[2] (Id. at 48-49; see also ECF No. 34-5 at 22-23.) In arriving at her conclusion that Plaintiff was “not fit for duty, ” the evaluating psychologist determined, after witnessing Plaintiff's continuing distress during the evaluation, that Plaintiff had not accessed the appropriate degree of treatment. (ECF No. 34-11 at 49-50.) Further, the evaluating psychologist “strongly encouraged” Plaintiff to “initiate treatment with a licensed mental health professional with expertise in treating trauma.” (Id. at 50.) As a result of her being found to be not fit for duty, Plaintiff was not allowed to return to work. (ECF No. 34-7 ¶¶ 28, 30.)

         On January 28, 2016, Plaintiff submitted forms entitled “Voluntary Self-Identification of Disability, ” “Health Care Provider-Medical Information Release Form, ” and “Accommodation Request Form” to UNC. (ECF No. 40-9.) As part of her request for an accommodation, Plaintiff was required to submit a “Documentation of Disability” form, signed by an authorized healthcare provider, that includes “a description of [her] disability[, ] any related limitations[, ] and recommendations for accommodation(s) and/or service(s).” (Id. at 7.) Plaintiff did not submit such documentation; instead, she asked that the psychologist who conducted Plaintiff's second FFDE complete the form, “as [that doctor] was the only one saying [Plaintiff] was not fit to return to duty.” (ECF No. 40-10.) After Plaintiff told UNC that her healthcare provider would not be completing the “Documentation of Disability” form, UNC terminated Plaintiff's employment, effective March 4, 2016. (ECF No. 40-11 at 2.)


         Defendant filed four documents under seal along with its Motion to Seal. (See ECF Nos. 37-1 to 37-4.) Those sealed documents include Plaintiff's medical records from various doctor visits and Plaintiff's “medical history statement” given when she applied to UNC in March 2012. (See id.) Both Defendant and Plaintiff filed briefs supporting the Motion to Seal. (ECF Nos. 36, 38.)

         “When presented with a request to seal judicial records or documents, a district court must comply with certain substantive and procedural requirements.” Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 576 (4th Cir. 2004). Substantively, a district court must “first ‘determine the source of the right of access with respect to each document.'” Doe v. Pub. Citizen, 749 F.3d 246, 266 (4th Cir. 2014) (quoting Va. Dep't of State Police, 386 F.3d at 576). The Fourth Circuit has “squarely held that the First Amendment right of access attaches to materials filed in connection with a summary judgment motion.” Id. at 267. Therefore, the First Amendment right of access applies in this case, as the documents that Defendant wishes to seal were filed in support of, or in opposition to, Defendant's summary judgment motion.

         Procedurally, a district court presented with a sealing request must:

(1) provide public notice of the sealing request and a reasonable opportunity for the public to voice objections to the motion; (2) consider less drastic alternatives to closure; and (3) if it determines that full access is not necessary, it must state its reasons-with specific findings-supporting closure and its rejections of less drastic alternatives.

Id. at 272. Local Rule 5.4 outlines similar requirements.[3] LR 5.4. The burden rests on the party seeking to keep information sealed. Va. Dep't of State Police, 386 F.3d at 575.

         First, the Court notes that the motion to seal has been publicly docketed since its date of filing on February 11, 2019. (ECF No. 35.) “Any interested party therefore has had sufficient time to seek intervention to contest any sealing order, but the docket reflects no such action.” Cochran v. Volvo Grp. N. Am., LLC, 931 F.Supp.2d 725, 728 (M.D. N.C. 2013). Accordingly, the Court concludes that the “public notice” requirement has been satisfied. See Id. (concluding that a motion to seal docketed less than one month before the entry of the order to seal provided sufficient public notice).

         Next, Defendant and Plaintiff have demonstrated a sufficiently compelling interest in preserving the confidentiality of some of Plaintiff's sensitive medical information. “If the request is narrowly tailored, sensitive medical information may be sealed.” Bell v. Shinseki, No. 1:12CV57, 2013 WL 3157569, at *9 (M.D. N.C. June 20, 2013), aff'd, 584 Fed.Appx. 42 (4th Cir. 2014). The motion to seal is narrowly tailored to only include Plaintiff's medical records which summarize Plaintiff's medical visits or medication or treatment history. (See ECF Nos. 37-1 to 37-4.) The parties have filed, unsealed, other relevant medical records and information, such as Plaintiff's FFDE reports and excerpts of Plaintiff's and Nurse McCain's depositions. (See ECF Nos. 40-6, 40-8, 34-1, 34-5.) Further, because simply redacting portions of Plaintiff's medical records would be insufficient to protect the confidentiality of these materials, the Court finds it appropriate for the entirety of these documents to be filed under seal. See Bell, 2013 WL 3157569, at *9.

         Because Plaintiff's interests in preserving the confidentiality of the documents in question overcome the First Amendment presumption of public access to court documents, Defendant's motion to seal will be granted.


         A. Standard of Review

         Summary judgment is appropriate when “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). A dispute is “genuine” if the evidence would permit a reasonable jury to find for the nonmoving party, and “[a] fact is material if it might affect the outcome” of the litigation. Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 568 (4th Cir. 2015) (internal quotation marks omitted). The role of the court is not “to weigh the evidence and determine the truth of the matter” but rather “to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). When reviewing a motion for summary judgment, the court must view the evidence and “resolve all factual disputes and any competing, rational inferences in the light most favorable” to the nonmoving party. Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (quoting Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir. 1996)).

         In cases where the nonmovant will bear the burden of proof at trial, the party seeking summary judgment bears the initial burden of “pointing out to the district court . . . that there is an absence of evidence to support the nonmoving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party carries this burden, then the burden shifts to the nonmoving party to point out “specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e) (emphasis omitted)). In so doing, “the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence.” Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013). The nonmoving party must support its assertions by citing to particular parts of the record, or by showing that the materials cited do not establish the absence of a genuine dispute. Fed.R.Civ.P. 56(c)(1); see Celotex, 477 U.S. at 324. The judicial inquiry on summary judgment “thus scrutinizes the plaintiff's case to determine whether the plaintiff has proffered sufficient proof, in the form of admissible evidence, that could carry the burden of proof of his claim at trial.” Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).

         Plaintiff has two remaining claims pending against Defendant: a violation of the Rehabilitation Act for a failure to accommodate, and a violation of the FMLA for retaliation. (See ECF No. 34 at 2.) Both counts will be addressed in turn.

         B. ...

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