United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
REIDINGER UNITED STATES DISTRICT JUDGE
MATTER is before the Court on the Defendant's
Motion for Summary Judgment [Doc. 16] and the Plaintiff's
Motion for Partial Summary Judgment [Doc. 19].
Perdue (the “Plaintiff”) brings this action
against her former employer, sanofi-aventis U.S. LLC (the
“Defendant”), asserting claims for violations of
the Americans with Disabilities Act (“ADA”), 42
U.S.C. §§ 12101 et seq., and for wrongful
discharge in violation of North Carolina public policy as
codified in the North Carolina Equal Employment Practices
Act, N.C. Gen. Stat § 143-422.2(a).
Defendant moves for summary judgment on the Plaintiff's
claims. [Doc. 16]. The Plaintiff moves for partial summary
judgment regarding her reasonable accommodation claim and the
Defendant's Twelfth, Fourteenth, Fifteenth, and Sixteenth
Affirmative Defenses. [Doc. 19].
STANDARD OF REVIEW
judgment is proper “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c). “As the Supreme Court has observed,
‘this standard provides that the mere existence of some
alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of material
fact.'” Bouchat v. Baltimore Ravens Football
Club, Inc., 346 F.3d 514, 519 (4th Cir. 2003) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
genuine issue of fact exists if a reasonable jury considering
the evidence could return a verdict for the nonmoving party.
Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994),
cert. denied, 513 U.S. 814 (1994). “Regardless
of whether he may ultimately be responsible for proof and
persuasion, the party seeking summary judgment bears an
initial burden of demonstrating the absence of a genuine
issue of material fact.” Bouchat, 346 F.3d at
522. If this showing is made, the burden then shifts to the
non-moving party who must convince the Court that a triable
issue does exist. Id.
considering the facts on a motion for summary judgment, the
Court will view the pleadings and material presented in the
light most favorable to the nonmoving party. Matsushita
Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S.
574, 587-88 (1986). Where, as here, the parties have filed
cross-motions for summary judgment, the Court must consider
“each motion separately on its own merits ‘to
determine whether either of the parties deserves judgment as
a matter of law.'” Rossignol v. Voorhaar,
316 F.3d 516, 523 (4th Cir. 2003) (quoting Philip Morris
Inc. v. Harshbarger, 122 F.3d 58, 62 n.4 (1st Cir.
Defendant operates a multinational pharmaceutical company in
various locations, including Asheville, North Carolina. [Doc.
1 at ¶ 9]. The Plaintiff began working for the Defendant
in November 2001. [Id. at ¶ 10, 28]. The
Plaintiff worked as an Executive Sales Professional
(“ESP”), which involves making drug sales calls
with physicians across a set territory in addition to
attending meetings and education programs. [Doc. 18-3 at 1].
ESPs typically spend 50% of more of their time traveling,
depending on the geography of the territory they are
assigned. [Id. at 2]. Generally, ESPs work more than
forty hours per week. [Doc. 18-2 at 30-31].
February 2013, the Plaintiff was placed on medical leave due
to inflammation of her lungs, joints, and muscles, and a
severe decrease in her ability to breathe. [Doc. 1 at ¶
12]. In April 2013, the Plaintiff was diagnosed with an
autoimmune disorder called Antisynthetase Syndrome.
[Id. at ¶ 13]. The Plaintiff remained on short
and long-term disability due to her symptoms as well as a
surgery to remove a tumor in her head that was causing her to
lose sight in one eye. [Id. at ¶¶ 15-19].
In December 2013, the Plaintiff returned to work on a 50%
flex-time schedule. [Id. at ¶ 20]. The
Plaintiff returned to work full-time in late 2015 and
continued to work in that capacity until January 2017.
[Id. at ¶ 21-22].
January 2017, the Defendant restructured its entire sales
organization. [Doc. 18-17 at 2]. As part of the
restructuring, the Plaintiff was transferred from a territory
where she resided in Greenville, South Carolina to a
territory in Asheville, North Carolina. [Doc. 18-2 at 17].
The Asheville territory is much larger than the Greenville
territory and required the Plaintiff to drive longer
distances. [Id. at 49]. After the reassignment, the
Plaintiff's commute from Greenville to Asheville took an
hour and twenty minutes oneway. [Doc. 18-17 at 2]. Shortly
after the restructuring, the Plaintiff's health began to
deteriorate because of the increased travel. [Doc. 18-28 at
Anderson (“Anderson”) served as the Area Business
Leader (“ABL”) for the Greenville territory.
[Doc. 28-2 at 74]. At the time of the restructuring in
January 2017, Anderson told the Plaintiff that there was a
position opening in Greenville for which she believed the
Plaintiff was qualified. [Doc. 18-2 at 79, 147]. The
Plaintiff, however, told Anderson that she was not interested
in the position because she did not believe she was qualified
for it. [Id. at 81].
Hernandez (“Hernandez”) served as the ABL for the
Asheville territory and was the Plaintiff's supervisor
after the restructuring. [Doc. 18-2 at 69-70]. In February
2017, Hernandez wrote to her immediate supervisor, Regional
Business Leader Tim Cole (“Cole”), requesting
that he either transfer the Plaintiff back into the
Greenville territory or allow the Plaintiff to participate in
job share because of her health issues. [Doc. 18-17 at 2].
Hunt (“Hunt”) was transferred to an ESP position
in the Greenville territory as part of the restructuring.
[Doc. 18-11 at 88]. Hunt thereafter reported to Anderson.
[Doc. 28-2 at 74]. The year before the restructuring, Hunt
worked as an ESP under a different manager and won the
Defendant's Gold Award for her comparatively high sales
figures. [Doc. 28-1 at 2].
Defendant allows its employees to apply for “Flexible
Work Arrangements” including “job share.”
[Doc. 18-4 at 4]. In February 2017, the Plaintiff contacted
Hunt about the possibility of applying to job share
Hunt's position. [Doc. 18-11 at 88]. The Defendant's
policies regarding “Flexible Work Arrangements”
are explained in a document titled “Sanofi U.S.
Flexible Work Arrangements” (the “FWA
Document”). [Id.]. The FWA Document defines
“job share” as a “work agreement between
two employees who pair up with each handling 50% of the time
of a standard position.” [Id.]. According to
the FWA Document, job share “[i]s not an
entitlement” and “[n]ot all positions may be
suitable due to the type of work being performed, business
needs, or performance concerns.” [Id. at 3,
Document has a “Job Share Checklist, ” which
states that “[e]mployees may be eligible for a Job
Share Work Arrangement by applying to their managers and HR
Business Partners.” [Id. at 11]. The FWA
Document also has “Flexible Work Guidelines, ”
which state that “[a]ll Flexible Work Arrangements must
be approved in advance of their commencement.”
[Id. at 5]. They also say that employees must
“maintain satisfactory performance prior to applying
for a Flexible Work Arrangement” and that
“[e]mployees who are not meeting performance
expectations may have their request for a Flexible Work
Arrangement denied.” [Id. at 7]. According to
the FWA Document, managers “consider each request
individually” and “approve or deny a request . .
. based on business conditions and the employee's
satisfactory demonstration that his or her job is suitable
for the particular Flexible Work Arrangement and that
business needs will continue to be met.” [Id.
March 9, 2017, the Plaintiff and Hunt applied to job share
Hunt's ESP position in the Greenville territory. [Doc.
18-31 at 3]. Their job share proposal explicitly stated that
the Plaintiff sought the job share “based on her
current health issues.” [Id.]. Under the
proposal, the Plaintiff would work Tuesdays, Thursdays, and
every other Friday, while Hunt would work Mondays,
Wednesdays, and every other Friday. [Id. at 3].
Before the Plaintiff submitted the proposal, she acknowledged
that “[t]he job share possibility will be determined by
whether the business unit can support it.” [Doc. 18-30
at 2]. Anderson needed to approve the Plaintiff and
Hunt's job share proposal because she was the ABL in the
region where the job share would occur. [Doc. 18-2 at 104].
March 24, 2017, a few weeks after the Plaintiff submitted the
proposal, Hernandez texted the Plaintiff to tell her that a
full-time position may soon be available in Greenville. [Doc.
18-41]. The Plaintiff never responded to Hernandez.
Hernandez, and Anderson discussed the job share proposal
several times. [Doc. 18-12 at 88; 18-23, 18-36]. To account
for the possibility of the proposal being approved, they
sought and obtained a waiver from the Defendant's policy
that only allowed job shares to begin at the beginning of
each quarter because consideration of the proposal was
extending beyond March 31. [Doc. 18-34 at 2]. Although they
were discussing the job share proposal and preparing for its
approval, they acknowledged that the final decision on the
proposal would depend on “the outcomes of the
[Plaintiff and Hunt's] meetings with [Anderson].”
April 19, 2017, Anderson, Hunt, and the Plaintiff held an
in-person meeting to discuss the job share proposal. [Doc.
18-2 at 105]. In addition to asking questions about the job
share proposal, [Doc. 18-12 at 143-44], Anderson also asked
Hunt “tough questions” regarding her performance,
competence, and attention to detail. [Doc. 18-2 at 118-122;
Doc. 28-2 at 166]. Specifically, Anderson mentioned
Hunt's issues regarding the submission of her expense
reports for the last few months. [Doc. 18-2 at 118-122; Doc.
18-44; Doc. 28-2 at 166]. Hunt responded that under her
previous manager she had received a Gold Award in 2016 for
her sales figures and received a positive year-end review in
2016. [Doc. 28-2 at 166]. Anderson told Hunt that she was
judging her by what she had seen since the restructuring in
2017 and did not “care what [her previous manager]
thinks about you.” [Id.].
Plaintiff testified that during the meeting, Anderson
“asked about my health and then made some reference to
that not being appropriate for her to ask.” [Doc. 18-2
at 123]. Hunt testified that Anderson simply asked the
Plaintiff, “[w]hen are you going to be coming back from
medical leave?” [Doc. 28-2 at 168]. After Anderson
asked, the Plaintiff “very openly explained to
[Anderson] about [her] autoimmune disorder.” [Doc. 18-2
at 119]. The Plaintiff conceded, however, that Anderson did
not ask any extensive follow-up questions about the
Plaintiff's health after hearing the Plaintiff's
answer. [Id. at 123].
2, 2017, the Plaintiff spoke with Kaitlin Santana
(“Santana”), who worked in the Defendant's
Human Resources Department. [Doc. 18-18 at 2]. During that
conversation, Santana offered to provide the Plaintiff with
hotel stays to limit the distance she needed to travel and a
more comfortable car to make her travel more comfortable if
she continued to work in the Asheville territory.
[Id.]. The Plaintiff responded that neither
option would help her. [Id.]. Santana also told the
Plaintiff that she should look on the Defendant's online
portal to see if any jobs in the Greenville area were vacant.
[Doc. 18-38 at 175]. By that time, however, there were no
vacant positions in upstate South Carolina. [Doc. 25-6 at
3, 2017, Anderson denied the Plaintiff's job share
proposal and communicated the denial to the Plaintiff and
Hunt by telephone. [Doc. 18-37]. Anderson explained to them
that “at this point in time with all the changes
happening at Sanofi, this would not be a good business
decision.” [Doc. 18-2 at 160-61]. Anderson said that
she discussed her decision with Cole and the Defendant's
Human Resources Department before notifying the Plaintiff and
Hunt. [Id. at 85].
Anderson elaborated that she denied the proposal because (1)
Hunt lacked attention to detail regarding expense reports;
(2) Hunt lacked attention to detail regarding oversampling of
certain products; (3) Hunt was one of the lowest ESPs in the
district in achieving a metric known as Call Plan Adherence;
(4) the proposal did not include a day when the Plaintiff and
Hunt would work together, which was important for planning;
(5) Anderson only recently had begun supervising Hunt and
felt uneasy about approving job share for such a new
employee; (6) the Greenville territory could not support a
job share because it was underperforming at the time of the
request; (7) Anderson felt that Hunt and the Plaintiff did
not meet the qualifications for a job share; and (8) the
recent restructuring had created a tense environment within
the company. [Id. at 85-88, 236, 300; Doc. 18-49 at
2]. It was noted that the first of three of these stated
reasons fell squarely within the basis for a denial of job
share because of Hunt's performance. [Doc. 18-4 at 7].
said that she did not take the Plaintiff's disability
into account when she denied the job share proposal. [Doc.
18-12 at 295]. Anderson said that she “didn't have
a problem with [the Plaintiff]” and “[i]t
wasn't [the Plaintiff's] ability that I really had a
question about ever.” [Id. at 295, 300].
that year, Hunt received a mid-year performance review, which
included a manager evaluation for Anderson to complete and an
employee self-evaluation for Hunt to complete. [Doc.
18-45]. In her self-evaluation Hunt wrote that her
“[s]trategic planning could be improved for the second
half of the year” and that her “[p]lanning and
strategizing will be more successful due to more familiarity
to new territory.” [Doc. 18-45 at 3]. She also wrote
that due to changes in the Defendant's sales organization
related to the restructuring, “things that are
important have perhaps fallen behind.” [Id. at
6]. Hunt also said that her “adaptability may have been
challenged at the beginning of 2017” after she started
working for Anderson. [Id. at 7; see also
Doc. 28-2 at 273-74]. Anderson's section of the review noted
that “[e]arly in the year, [Hunt] had some missteps
with appropriate sampling, but quickly corrected her
mistakes.” [Doc. 18-45 at 8].
suffered a seizure in May 2017, which she attributed to
stress caused by her relationship with Anderson. [Doc. 28-2
at 198-99]. Hunt was placed on medical leave until July 16,
2017. [Id. at 220]. Hunt returned to work on July
17, 2017, although her doctors had been unable to ascertain a
physical reason for the seizure. [Doc. 28-2 at 222-23].
Roughly a month after Hunt returned from leave, she heard
rumors that the Defendant was going to restructure again at
the end of 2017. [Doc. 28-2 at 224]. On September 25, 2017,
Hunt suffered from seizure-like symptoms again. [Doc. 25-9 at
5]. On November 3, 2017, Hunt resigned, saying she said that
she “couldn't take working for Debbie Anderson
anymore.” [Doc. 28-2 at 250].
the job share with Hunt was denied, the Plaintiff looked for
other jobs on the Defendant's online portal that she
could perform with her restrictions but did not find one.
[Doc. 18-2 at 182]. At that point, it was already rumored
that the Defendant would be undergoing another restructuring
at the end of 2017. [Doc. 18-20 at 2]. The Plaintiff hoped
that she would be reassigned to the Greenville territory as
part of the potential restructuring. [Id.].
August 31, 2017, the Plaintiff informed the Defendant that
she was unable to return to her full-time position, with or
without accommodations, and did not know when she would be
able to do so. [Doc. 18-1 at 2]. The Plaintiff also requested
a part-time position but was told that the Defendant could
not sustain a part-time position at that time. [Doc. 18-26].
September 19, 2017, the Defendant terminated the
Plaintiff's employment. [Id.]. The Defendant
explained to the Plaintiff that her short-term disability
ended and said it was unable to grant her an
“indefinite leave of absence.” [Doc. 18-2 at 198;
Plaintiff claims that the Defendant violated the ADA in the
following ways: (1) by failing to accommodate her disability;
(2) by failing to engage in the interactive process; (3) by
terminating her employment; and (4) by retaliating against
her for requesting a reasonable accommodation. [Doc. 1 at
¶¶ 55-56]. The Plaintiff also claims that the
Defendant wrongfully discharged her in violation of North
Carolina public policy. [Id. at ¶¶ 59-68].
The Defendant moves for summary judgment on each of the
Plaintiff's claims. [Doc. 16].
Failure to Accommodate
Plaintiff's primary claim is that the Defendant
discriminated against her by failing to accommodate her
disability. The Defendant moves for summary judgment on the
basis that the Plaintiff's forecast of evidence fails to
create an issue of fact as to whether any reasonable
accommodation was available.
protects a “qualified individual, ” which is
defined as “an individual with a disability who, with
or without reasonable accommodation, can perform the
essential functions of the employment position that such
individual holds or desires.” 42 U.S.C. §
12111(8). To prevail on a failure-to-accommodate claim
brought under the ADA, the Plaintiff is required to show that
(1) she was a qualified individual; (2) the Defendant had
notice of her disability; (3) she could perform the essential
functions of the position she held or desired with a
reasonable accommodation; and (4) the Defendant refused to
make such accommodations. See Wilson v. Dollar Gen.
Corp., 717 F.3d 337, 345 (4th Cir. 2013).
Plaintiff does not claim that she could be accommodated as an
ESP in the Asheville territory. Her physician said as much.
[Doc. 18-50 at 2-3]. In fact, the Plaintiff declined the
accommodations that were offered in that position. [Doc.
18-18 at 2]. Instead, the Plaintiff specifically requested
the job share with Hunt in the Greenville territory as an
employer is “not obligated to provide the accommodation
requested or preferred by the employee.” Cravens v.
Blue Cross & Blue Shield of Kansas City, 214 F.3d
1011, 1019 (8th Cir. 2000). Under the ADA, however, the
employer may need to reassign the employee to a vacant
position as an accommodation if the employer is unable to
identify a reasonable accommodation that will allow a
qualified employee to continue performing the essential
functions of his or her current job. 42 U.S.C. §
12111(9)(B). Thus, the question before the Court is whether