Richard L. Voorhees, United States District Judge.
After a thorough examination of the record, the parties' briefs, and applicable law, the Court
Before analyzing the merits of the Defendants' Motion, the Court must first discuss the Plaintiff's motions to strike the declarations of William Smith and Jimmie Link — declarations which the Defendants submitted in support of their Motion. See [Doc. No. 17]; [Doc. No. 18]. In his motions to strike, the Plaintiff raises numerous argumentative objections to the Defendants' submissions. The Court declines to address each of the Plaintiff's challenges, or to issue a separate order respecting the same, for a variety of reasons. First and foremost, a slew of Plaintiff's objections (and Defendants' submissions) are wholly irrelevant to the ultimate issues pending before the Court. The parties have seemingly gone to great lengths to place before this Court every fact produced during discovery, either in support of Defendants' Motion or in opposition to it, whether those facts are relevant to the Motion or not. The parties are reminded that, on a motion for summary judgment, the only matter of consequence is whether there exists a genuine issue of material fact. See, e.g., Fed. R. Civ. Pro. 56(a). The Court does not concern itself with irrelevant matters — such as, for example, the history of Hickory White since the early 1900s — and neither should the parties.
Second, throughout the motions to strike, the Plaintiff has attempted to wedge-in additional summary judgment arguments that were not expressly contained in, or elaborated upon, in his opposition brief to the Defendants' Motion. "It is not this court's responsibility to research and construct the parties' arguments[.]" See Draper v. Martin, 664 F.3d 1110, 1114 (7th Cir.2011). Aside from the fact that, for all practical purposes, this type of "incorporation by reference" allows the Plaintiff to skirt the page limitations imposed by this Court's local rules, see LCvR 7.1(D), W.D.N.C., Plaintiff has essentially asked this Court to read everything it has filed and, after doing so, construct a coherent argument against the Defendants' Motion — a task which the Plaintiff was obligated to do within his opposition brief. Accordingly, the Court will only consider Plaintiff's arguments against summary judgment to the extent they appear in Plaintiff's opposition brief, unless, as will be highlighted below, the Court considers a specific objection to evidentiary submissions on which the Court relies in ruling on the Defendants' Motion.
Third, to the extent the voluminous record contains disputes of fact, the Court will assume that those disputes are specifically highlighted by the parties' summary judgment briefs. The Court will not play "archaeologist with the record," Arkin v. Bennett, 282 F.Supp.2d 24, 33 n. 4 (S.D.N.Y. 2003), by setting out on its own treasure hunt to discover issues of fact that the parties should have brought to its attention through specific, consolidated, and concise briefing. See, e.g., Garmin Ltd. v. TomTom, Inc., 468 F.Supp.2d 988, 1000 (W.D.Wis.2006) ("A party opposing a motion for summary judgment must show its whole hand[.]"); see also Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir.2005) ("Summary judgment is not a dress rehearsal or practice run; it is the `put up or shut up' moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events." (citation and quotation marks omitted)); Respironics, Inc. v. Invacare Corp., 2008 WL 111983, at *4, 2008 U.S. Dist. LEXIS 1174, at *10-11 (W.D.Pa.2008); accord Robinson v. Prince George's Cnty., 465 Fed.Appx. 238, 240 (4th Cir.2012) ("The nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts, but must come forward with specific facts showing that there is a genuine issue for trial." (quotation marks and citation omitted)).
Finally, a motion to strike is no longer the favored (or authorized) method of challenging the inadmissible nature of evidentiary submissions at the summary judgment stage. Since the 2010 amendment to the Federal Rules of Civil Procedure, a motion to strike is technically not available to motions for summary judgment; rather, courts should treat the issues raised by such a motion as objections to the evidence and, if the Court finds the objections have merit, the improper evidence may simply be disregarded by the Court. See Fed. R. Civ. Pro. 56(c)(2) (providing that a party
Consequently, the Court construes the Plaintiff's motions to strike as mere objections to certain assertions contained in the various declarations submitted in support of the Defendants' Motion. To the extent the Court relies on any of the Defendants' submissions to which an objection has been made, the Court will discuss the specific objection, as is relevant, within the body of the Order below. However, to the extent the Plaintiff requests the Court enter an order respecting each and every objection contained in his motions to strike, asks the Court to consider arguments in opposition to summary judgment that are not specifically contained in Plaintiff's opposition brief, or requests the Court to scour the voluminous record for Plaintiff, those requests are
Plaintiff Arnold Propst is a male citizen of Burke County, North Carolina. [Doc. No. 1-1] at ¶ 1 (Complaint); [Doc. No. 4] at ¶ 1 (Answer). Defendants HWS Company, Inc. (hereinafter, "Hickory White")
Harold W. Sherrill serves as President for both Hickory White and Sherrill Furniture. [Doc. No. 1-1] at ¶ 5 (Complaint); [Doc. No. 4] at ¶ 5 (Answer). William Smith has been employed by Sherrill since 1986. [Doc. No. 16-15] at p. 2 (¶ 3) (Smith
Prior to his employment with Hickory White, Plaintiff was a partner at his family's construction business for approximately twenty years. See [Doc. No. 16-1] at p. 5 (Plaintiff Deposition). Plaintiff eventually left his family's business and began working for Hickory White in November 1989, as a member of its maintenance department. [Doc. No. 1-1] at ¶¶ 6, 22 (Complaint); [Doc. No. 4] at ¶¶ 6, 22 (Answer); [Doc. No. 16-1] at p. 5 (Plaintiff Deposition). Hickory White employed Plaintiff and operated the plant where he primarily worked. [Doc. No. 1-1] at ¶ 5 (Complaint); [Doc. No. 4] at ¶ 5 (Answer).
Plaintiff worked for Hickory White as a general maintenance mechanic. [Doc. No. 16-1] at p. 12 (Plaintiff Deposition). However, Plaintiff's role as a maintenance mechanic left little room for discretion. He testified that his job duties were constrained to doing "as [he] was told to do as jobs were delegated" and "handed down" to him. [Doc. No. 16-1] at p. 28 (Plaintiff Deposition). Any time a machine broke — Plaintiff was asked to repair it. [Doc. No. 16-1] at p. 28 (Plaintiff Deposition); [Doc. No. 16-2] at p. 43 (Plaintiff Deposition). If Hickory White needed inspections completed (e.g., its fire extinguishers needed to be inspected on a monthly basis), Plaintiff was asked to do them. [Doc. No. 16-1] at pp. 28-29 (Plaintiff Deposition); [Doc. No. 16-2] at pp. 43-45 (Plaintiff Deposition). If general building maintenance was needed (e.g., broken water lines, wall replacement, asphalt and concrete repair, support reinforcement, roof repair), Plaintiff performed the maintenance. [Doc. No. 16-1] at pp. 28-30, 40-42 (Plaintiff Deposition); [Doc. No. 16-2] at pp. 43-45 (Plaintiff Deposition); [Doc. No. 19-5] at p. 7 (Plaintiff Deposition). Plaintiff would also fill-in for absent workers, as needed. [Doc. No. 16-1] at p. 30 (Plaintiff Deposition); [Doc. No. 16-2] at pp. 43-45 (Plaintiff Deposition).
To accomplish the tasks to which he was assigned, Plaintiff would utilize skills of the trade, such as welding and fabricating.
From the early 1990s until sometime between 2010 and 2011, Mike Walker supervised Plaintiff. [Doc. No. 16-1] at pp. 8-9, 11, 20 (Plaintiff Deposition). Plaintiff considered Mr. Walker to be a "super boss;" indeed, Plaintiff "never, ever had a problem" with Mr. Walker for the entirety of their working relationship. [Doc. No. 16-1] at p. 13 (Plaintiff Deposition). Sometime between 2000 and 2009, Mike Walker asked Plaintiff to become his foreman; however, Plaintiff turned down the opportunity because he did not wish to take on the additional responsibilities. [Doc. No. 16-1] at pp. 13-15 (Plaintiff Deposition). After Mr. Walker passed away, William Smith was designated as Plaintiff's "acting" supervisor.
As Plaintiff's new supervisor, Smith directed Plaintiff's work, and assumed hiring and firing authority over the department.
Plaintiff's maintenance role and duties did not change after Mike Walker passed
During his employment with Hickory White, Plaintiff took leave from work on four occasions. In the early or mid-2000s, Plaintiff took leave for an operation on his shoulder. [Doc. No. 16-1] at p. 45 (Plaintiff Deposition); [Doc. No. 16-7] at p. 2 (Personnel Records). In or around January 2009, Plaintiff took FMLA leave for an operation concerning a deviated septum. [Doc. No. 16-1] at pp. 45-46, 50 (Plaintiff Deposition); [Doc. No. 16-6] at pp. 3-4 (Personnel Records). In or around January 2012, Plaintiff was on leave as a result of a facial laceration. [Doc. No. 16-1] at p. 46 (Plaintiff Deposition); [Doc. No. 16-7] at pp. 3-4 (Personnel Records). Finally, in December 2012 to January 2013, Plaintiff took FMLA leave for surgery on his eyelids to correct a condition which the parties repeatedly describe as "droopy eyelids."
Prior to January 2012, Plaintiff had tolerated "droopy eyelids" for "a couple of years." [Doc. No. 16-2] at p. 1 (Plaintiff Deposition). Plaintiff's condition reportedly affected his peripheral vision; however, it did not affect his ability to perform activities of daily living, his ability to drive, or his ability to perform his work duties. See [Doc. No. 16-2] at pp. 2-3 (Plaintiff Deposition); [Doc. No. 19-14] at p. 2 (Letter from Dr. Lowry). Plaintiff never requested any job modifications from Hickory White as a result of his condition. [Doc. No. 16-2] at p. 2 (Plaintiff Deposition). Plaintiff attests that his "droopy eyelids" caused him to suffer "[n]o limitations other than [he] probably [could not] see as well at night." [Doc. No. 16-2] at p. 3 (Plaintiff Deposition). Plaintiff's doctor, Dr. Lowry at Morganton Eye Physicians, recommended, upon Plaintiff's request, that he have corrective outpatient surgery on his eyelids to
Once he decided to have corrective surgery, in late-2011 Plaintiff directly approached Jimmie Link regarding a possible leave of absence. [Doc. No. 16-1] at pp. 47-48, 52 (Plaintiff Deposition); [Doc. No. 16-2] at p. 1 (Plaintiff Deposition). Plaintiff told Link that his "droopy eyelids" were affecting his peripheral vision and that he would be undergoing surgery to correct the problem. [Doc. No. 16-1] at p. 52 (Plaintiff Deposition). Link told Plaintiff that he should "just let [her] know when" the surgery would occur and Hickory White will "give [him] the papers to take to [his] doctor...." [Doc. No. 16-1] at pp. 47-48 (Plaintiff Deposition). Link informed Plaintiff that he would be able to take the leave he needed for the surgery and, "[a]ny time [he] wanted off, just let her know." See [Doc. No. 16-2] at pp. 1, 6 (Plaintiff Deposition). After discussing the need for leave with Link, Plaintiff had an accidental fall, which required the eye surgery to be postponed. See, e.g., [Doc. No. 19-5] at p. 14 (Plaintiff Deposition). Plaintiff suffered a facial laceration, which required him to take time off from work in January 2012. See [Doc. No. 19-5] at pp. 9, 14 (Plaintiff Deposition); [Doc. No. 16-1] at p. 46 (Plaintiff Deposition); [Doc. No. 16-7] at pp. 3-4 (Personnel Records). The eye surgery was rescheduled for approximately one-year later. [Doc. No. 19-5] at p. 14 (Plaintiff Deposition); [Doc. No. 16-2] at pp. 6-7 (Plaintiff Deposition). Plaintiff informed Link of the new surgery date and she agreed to let him take FMLA leave. [Doc. No. 19-5] at pp. 14-15 (Plaintiff Deposition).
On or about December 18, 2012, Hickory White provided Plaintiff with a "Certification of Health Care Provider for Employee's Serious Health Condition (Family and Medical Leave Act)" form, which Plaintiff's doctor completed and returned to Link. [Doc. No. 1-1] at ¶ 12 (Complaint); [Doc. No. 4] at ¶ 12 (Answer); [Doc. No. 16-3] at pp. 2-3 (Personnel Records); [Doc. No. 16-4] at pp. 1-3 (Personnel Records). Based on the information provided by Plaintiff (and his doctor), Link approved Plaintiff to take a leave of absence, commencing December 31, 2012. [Doc. No. 1-1] at ¶¶ 9, 12 (Complaint); [Doc. No. 4] at ¶¶ 9, 12 (Answer); [Doc., No. 16-2] at p. 6 (Plaintiff Deposition). Plaintiff's eyelid surgery took place on January 3, 2013. [Doc. No. 16-2] at p. 7 (Plaintiff Deposition).
Other than Link, Plaintiff discussed his need for surgery only with Shane Crawford. [Doc. No. 16-2] at p. 2 (Plaintiff Deposition); [Doc. No. 16-2] at p. 47 (Plaintiff Deposition) (stating that he did not discuss the leave of absence with William Smith). Plaintiff testified he knew his FMLA rights and would have gone to Link with any questions he may have had. [Doc. No. 16-1] at p. 48 (Plaintiff Deposition). Following the surgery, Plaintiff's eye condition was fully corrected. [Doc. No. 16-2] at p. 3 (Plaintiff Deposition). Plaintiff was on an approved FMLA leave at the time of the layoff in January 2013. [Doc. No. 11] at ¶¶ 6-7 (Joint Stipulation); [Doc. No. 1-1] at ¶¶ 10, 14 (Complaint); [Doc. No. 4] at ¶¶ 10, 14 (Answer). Sometime between
Neither Hickory White nor Sherrill sent Plaintiff the FMLA eligibility notice, designation notice, or notice of rights and responsibilities (i.e., USDOL Form Nos. WH-381 and 382 or their equivalent), as required by law, in December 2012 or early January 2013. [Doc. No. 11] at ¶ 18 (Joint Stipulation). Thad Powell had not asked for FMLA leave in the two years prior to the January 2013 layoff. [Doc. No. 11] at ¶ 9 (Joint Stipulation). Plaintiff's co-worker, Ken Chaffin, was also on FMLA leave when he was terminated by Smith through application of the 2013 RIF. See, e.g., [Doc. No. 19-7] at pp. 20-21 (Smith Deposition).
In the mid-2000s, Hickory White struggled with economic pressures arising from the infiltration of cheap foreign "casegoods"
While business seemed to improve somewhat between 2010 and 2012, in late-2012 Hickory White's sales plummeted by fifteen percent (15%) — or $1.25 million — and its costs increased by fifty percent (50%). [Doc. No. 16-18] at pp. 4-5 (¶¶ 7-9) (Monroe Declaration). By November 2012, in order to cauterize the apparent hemorrhage of money, Thad Monroe (Sherrill's Chief Operating Officer), after consulting with Bryan Milleson (Sherrill's Chief Financial Officer), recommended that Hickory White implement a reduction-in-force ("RIF") measure immediately. [Doc. No.
During the January 16, 2013 meeting, no decision was made regarding the number of employees to be laid off, the specific employees to be terminated, the selection criteria to be used, or the specific dollar figure to be saved. [Doc. No. 16-18] at p. 6 (¶ 15) (Monroe Declaration); [Doc. No. 16-16] at pp. 5-7 (Link Deposition); [Doc. No. 19-6] at pp. 12-13 (Link Deposition). Instead, those decisions were mostly left to appropriate managers within Hickory White's leadership. [Doc. No. 16-18] at p. 6 (¶ 15) (Monroe Declaration); [Doc. No. 16-16] at pp. 5-7 (Link Deposition); [Doc. No. 19-6] at pp. 12-13 (Link Deposition). However, because maintenance employees had not been subjected to the immediately preceding layoffs, the meeting's attendees decided to reduce the employees in Hickory White's maintenance department by two employees.
Monroe communicated the decision to William Smith sometime between January 16 and 17.
After being informed that he needed to reduce the maintenance staff by two employees, Smith decided to terminate Plaintiff and another maintenance worker, Ken Chaffin. [Doc. No. 24-2] at p. 5 (Smith Deposition); [Doc. No. 16-15] at p. 17 (¶ 48) (Smith Declaration). In coming to his decision, Smith deemed the following criteria important: (1) the ability of the residual maintenance staff to "maintain[ ] the facilities" and continue "day-to-day operation" of the plant, with a de-emphasis on preventative maintenance; (2) the availability of funding for future operations and projects;
At the time of the layoffs, the maintenance department consisted of five maintenance employees: Howard Childress; Shane Crawford; Thad Powell; Arnold Propst; and Ken Chaffin.
Through process of elimination, Smith determined he needed to terminate Plaintiff and Mr. Chaffin, the two remaining maintenance employees. [Doc. No. 24-2] at p. 5 (Smith Deposition); [Doc. No. 16-15] at p. 17 (¶ 48) (Smith Declaration). Smith chose Plaintiff and Mr. Chaffin because he "did not have funding for the types of projects" that those employees were working on, and because he considered Childress, Crawford, and Powell's skills to be better suited, comparatively, for maintaining the Hickory White plant in the future. [Doc. No. 16-3] at p. 21 (Smith Deposition); [Doc. No. 24-2] at p. 5 (Smith Deposition); [Doc. No. 16-15] at pp. 17-18 (¶¶ 45-49) (Smith Declaration).
In coming to his decision, Smith testified that he relied on his "perception" — i.e., his subjective understanding of Hickory White's current and future needs, funding levels for the department, and the qualifications and skills of the maintenance employees. See, e.g., [Doc. No. 16-13] at p. 22 (Smith Deposition). While contemplating his decision, Smith did not review any personnel records, written performance evaluations, job descriptions, or training records.
Smith communicated his decision to Plaintiff on January 18, 2013.
Plaintiff filed an EEOC charge on May 1, 2013. [Doc. No. 1-1] at ¶ 21 (Complaint); [Doc. No. 4] at ¶ 21 (Answer). The EEOC issued a "Notice of Rights to Sue" on January 30, 2014. [Doc. No. 1-1] at ¶ 23 (Complaint); [Doc. No. 4] at ¶ 23 (Answer). This action commenced soon thereafter. See, generally [Doc. No. 1] (Notice of Removal); [Doc. No. 1-1] (Complaint).
On March 6, 2015, Defendants filed their motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. [Doc. No. 16]. Defendants seek judgment in their favor on all of Plaintiff's claims. In their Motion, the Defendants argue that summary judgment should be entered against Plaintiff because (1) Plaintiff has not established a prima facie case of disability discrimination under the Americans with Disabilities Act (the "ADA"); (2) Plaintiff has not established a prima facie case of age discrimination under the Age Discrimination in Employment Act (the "ADEA"); (3) Plaintiff has not established a prima facie case of retaliation under the Family and Medical Leave Act (the "FMLA"); (4) even if Plaintiff has established his prima facie cases, Defendants have offered a legitimate, non-discriminatory/non-retaliatory reason for Plaintiff's termination and he cannot demonstrate such reason to be pretext; (5) Plaintiff's state law claims for wrongful termination under the North Carolina Equal Employment Practices Act (the "NCEEPA") fails for the same reasons as Plaintiff's federal age and disability discrimination claims; (6) Plaintiff cannot demonstrate that Defendants unlawfully interfered with his rights under the FMLA; and (7) Plaintiff has failed to prove that he is entitled to certain damages sought by his Complaint.
Each of these issues having been properly and timely presented, the Court will now discuss and analyze each of the Defendants' challenges.
Summary judgment is appropriate only "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). In order to support or oppose a summary judgment motion, a party is required to cite to "materials in the record, including depositions, documents, electronically stored information, affidavits or declarations,... admissions, interrogatory answers, or other materials;" or show "that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1); accord Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (applying former version of Rule 56); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (same).
It is well-established that the mere existence of "some" factual disputes will not defeat summary judgment; rather, the dispute presented must be "genuine" and concern "material" facts. Anderson, 477 U.S. at 247-248, 106 S.Ct. 2505 (emphasis in original); see also Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir.2008). Only legitimate disputes over facts that might affect the outcome of the suit under relevant governing law fall within that category. See Fields v. Verizon Servs. Corp., 493 Fed.Appx. 371, 374 (4th Cir.2012). A dispute is "genuine" if "a reasonable jury could return a verdict for the nonmoving party." Dulaney v. Packaging Corp. of
Abstract or conjectural doubts, minor discrepancies, and points irrelevant to the "material" facts are not genuine or material and do not cast sufficient doubt on the validity of testimony to preclude the entry of summary judgment. Emmett, 532 F.3d at 297; Hux v. City of Newport News, Va., 451 F.3d 311, 315 (4th Cir.2006). The non-movant cannot demonstrate a triable issue of disputed fact by building one inference upon another. Emmett, 532 F.3d at 297 (citing Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.1985)). Although it is certainly true that "the facts and all reasonable inferences must be viewed in the light most favorable to the non-moving party," Smith v. Va. Commonwealth Univ., 84 F.3d 672, 675 (4th Cir.1996) (en banc), it is equally true that a court is "well within its discretion in refusing to ferret out the facts that counsel has not bothered to excavate." Cray Commc'ns. Inc. v. Novatel Computer Sys., Inc., 33 F.3d 390, 396 (4th Cir.1994).
Finally, in employment disputes, such as the one at bar, the Court and the parties must never lose track of the context in which the dispute has arisen. In North Carolina, "absent an employment contract for a definite period of time, both employer and employee are generally free to terminate their association at any time and without reason." See, e.g., Head v. Adams Farm Living, Inc., 775 S.E.2d 904, 909 (2015). Further, there is no general federally protected right to "just cause" protection in private sector employment. Instead, in North Carolina, it is the exception, not the rule, that an employee is vested with a cause of action arising out of the termination of his employment. See Head, 775 S.E.2d at 909 (adhering to the employment-at-will doctrine absent a contractual right or a "public policy exception" which vests the employee with a cause of action). Under federal law, a plaintiff must demonstrate that his termination from private employment was the result of some sort of statutorily prohibited discriminatory animus or the violation of another federally protected right; otherwise federal law will be "converted from one preventing discrimination ... to one ensuring dismissals only for just cause to all people...." See Moore v. Eli Lilly & Co., 990 F.2d 812, 816 (5th Cir.1993) (citing Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1504-05 (5th Cir.1988)). It is under this rubric that the Court will now consider the arguments presented.
At the summary judgment stage, a plaintiff carries the initial burden of establishing
In the ADA context, a plaintiff must establish a prima facie case of discriminatory discharge, which requires evidence demonstrating that (1) he was a member of the statutorily-protected class;
If a plaintiff presents sufficient evidence to satisfy the underlying prima facie
For purposes of this Motion, the Court assumes, without deciding, that Plaintiff has met his prima facie showing of wrongful termination under the ADA and retaliatory discharge under the FMLA.
As stated above, once the Plaintiff meets his prima facie burden, the burden of production then shifts to Defendants. The Defendants' burden of production is not onerous; rather, they must only "articulate some legitimate, nondiscriminatory explanation which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action." Ennis, 53 F.3d at 58. Because an employer's burden is one of production, and not of persuasion, it "is not required to prove [the] absence of a discriminatory motive, but merely articulate some legitimate reason for its action." EEOC v. Clay Printing Co., 955 F.2d 936, 941 (4th Cir. 1992) (quoting EEOC v. Western Electric Co. Inc., 713 F.2d 1011, 1014 (4th Cir. 1983)).
Defendants have offered a legitimate, nondiscriminatory reason for discharging Plaintiff from his employment with Hickory White. Defendants have shown that Hickory White was suffering substantial financial difficulties at the time Plaintiff was on leave for his eyelid procedure. The significant decline in Hickory White's financial stability required upper management to adopt a reduction-in-force policy, just as it had done during other financially challenging periods. The Fourth Circuit has commonly held, as have courts within its jurisdiction, that RIFs are legitimate, lawful reasons for terminating an employee. See, e.g., White v. Dalton, 2000 WL 1058979, at *1, 2000 U.S. App. LEXIS 18694, at *1-2 (4th Cir.2000) (per curiam) ("Defendant presented a legitimate, nondiscriminatory reason for his decision: a
However, case law suggests that an employer must go a bit further in RIF cases than simply pointing to its RIF policy (as a whole) and the financial reasons underlying it — indeed, the employer must offer a legitimate, lawful reason for having applied the RIF policy against the plaintiff/employee. See, generally Fields, 493 Fed.Appx. at 376-77 (discussing the specific reasoning given for applying Verizon's RIF policy against the plaintiff — not simply allowing Verizon to satisfy its burden by pointing to the RIF as a whole). Even under this more exacting inquiry, the Defendants have met their burden by offering specific reasons regarding why Hickory White's RIF policy was applied to Plaintiff.
Smith was told that, to carry out the RIF, he had to terminate two employees in the five-member maintenance department. This determination was reached by upper management (outside of Smith's presence) because no maintenance workers were dismissed in the immediately preceding layoffs. Ultimately, eight people were terminated during the layoff — two in maintenance and six in other departments. Smith testified that, to carry out this command, he established certain criteria to guide his decision. In short, Smith determined that he needed a residual workforce that would have, what he believed to be, the requisite skill-set to keep the "day-to-day" operational objectives of Hickory White on track, which comported with the maintenance department's funding levels and the "current and future" business needs of Hickory White. See [Doc. No. 16-13] at p. 13 (Smith Deposition); [Doc. No. 24-2] at p. 5 (Smith Deposition); [Doc. No. 16-15] at pp. 14-16 (¶¶ 39-42) (Smith Declaration); [Doc. No. 16-18] at p. 7 (¶ 18) (Monroe Declaration). The Fourth Circuit has held that concern for the "existing and future" operational and business needs of a company is a legitimate and lawful reason for applying an RIF policy. See Fields, 493 Fed.Appx. at 376; Mereish v. Walker, 359 F.3d 330, 335 (4th Cir.2004); Duke v. Uniroyal Inc., 928 F.2d 1413, 1418 (4th Cir.1991). "Such a strategic business decision constitutes a legally sufficient justification" for an employee's termination. See Mereish, 359 F.3d at 335. Moreover, "budgetary constraints" have long-offered a legitimate, nondiscriminatory, and non-retaliatory reason for applying a RIF policy. See, e.g., Causey v. Balog, 162 F.3d 795, 803 (4th Cir.1998).
Having identified the skills and duties relevant to his decision, Smith identified the employees he believed would produce a residual workforce capable of carrying out Hickory White's operational and business goals within the budgetary constraints caused by its financial predicament. The selected employees — Childress, Crawford, and Powell — were retained; the remaining two maintenance employees — Propst and Chaffin — were terminated. See [Doc. No.
To withstand Defendants' motion for summary judgment, Plaintiff must now bring forth evidence tending to show that the Defendants' legitimate and lawful reasons were merely pretext for unlawful discrimination or retaliation. That is to say, Plaintiff must present some evidence creating a genuine dispute concerning the truth of the Defendants' proffered reason for discharging him, such that a reasonable trier of fact could find that the "real reason" underlying Plaintiff's discharge was either (1) his alleged disability; or (2) his lawful use of FMLA leave. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Rowe v. Marley Co., 233 F.3d 825, 830 (4th Cir.2000). Plaintiff's evidence is lacking on both points, and thus his claims must fail.
A plaintiff can show pretext by demonstrating that the defendant's explanation is "unworthy of credence" or by "offer[ing] other forms of circumstantial evidence sufficiently probative of intentional discrimination." Dugan v. Albemarle Cnty. Sch. Bd., 293 F.3d 716, 721 (4th Cir.2002); Wright v. N.C. Dep't of Health & Human Servs., 405 F.Supp.2d 631, 636 (E.D.N.C.2005). If an employer offers inconsistent explanations or justifications concerning its actions, then those inconsistencies are probative of pretext. See EEOC v. Sears Roebuck & Co., 243 F.3d 846, 852-53 (4th Cir.2001). Mere conjecture and speculation, however, are insufficient to overcome a summary judgment motion. See Autry v. North Carolina Dep't of Human Resources, 820 F.2d 1384, 1386 (4th Cir.1987); Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 241-46 (4th Cir.1982); accord Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir.1999). Furthermore, "mere mistakes of fact are not evidence of unlawful discrimination." See, e.g., Price v. Thompson, 380 F.3d 209, 215 n. 1 (4th Cir.2004); Clark v. Creative Hairdressers, Inc., 2005 WL 3008511, at *11, 2005 U.S. Dist. LEXIS 27182, at *40-41 (D.Md.2005).
To prove pretext, a plaintiff must do more than present conclusory allegations of discrimination; rather, "concrete particulars are required." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985). More than a "mere ... scintilla of evidence" or the appearance of "some metaphysical doubt" concerning pretext must be presented. See Anderson, 477 U.S. at 252, 106 S.Ct. 2505; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.2002); Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 191 (4th Cir.1997); Tao of Sys. Integration, Inc. v. Analytical Servs. & Materials, Inc., 330 F.Supp.2d 668, 671 (E.D.Va.2004). However, even if a plaintiff proves that an employer's proffered reason is false or inconsistent, "there
Most importantly, this Court does not sit as some sort of general personnel management bureau, burdened with the duty to examine or second guess the ultimate wisdom or folly of an employer's legitimate business decisions. See Fields, 493 Fed.Appx. at 378-79; Rowe v. Marley, Co., 233 F.3d 825, 831 (4th Cir.2000) (holding an employer's decision to discharge one employee over another is the type of decision this court is reluctant to second guess); Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 272 (4th Cir.2005); Henson v. Liggett Grp., Inc., 61 F.3d 270, 277 (4th Cir.1995) ("We have recognized the importance of giving an employer the latitude and autonomy to make business decisions, including workplace reorganization, as long as the employer does not violate" applicable law.); EEOC v. Clay Printing Co., 955 F.2d 936, 946 (4th Cir.1992) ("It is not ... the function of this court to second guess the wisdom of business decisions."). Rather, the Court's "sole concern" is whether the reason for which the Plaintiff was discharged constituted unlawful discrimination or retaliation. DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir.1998). "Thus, when an employer articulates a reason for discharging the [P]laintiff[,] not forbidden by law, it is not [the Court's] province to decide whether the reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the [P]laintiff's termination." DeJarnette, 133 F.3d at 299 (quotations and citations omitted).
In his briefing, Plaintiff attempts to show pretext by asserting a variety of challenges to the Defendants' RIF explanation.
Plaintiff claims that Smith's memory of his decision-making process has "evolved"
The Court finds that the Defendants "[have] not engaged in the kind of shifting, inconsistent explanations that permit a reasonable inference of pretext." See Calobrisi, 2015 WL 1349627, at *4, 2015 U.S. Dist. LEXIS 37014, at *15. The record shows that Defendants, through Smith, have never departed from their central justification for discharging Plaintiff — that Hickory White's financial difficulties required the maintenance department to reevaluate its allocation of resources to reflect the new business and operational goals of the company. Plaintiff's brief takes issue with Defendants' reasons by arguing that they have "evolved" over time; however, the Court finds that Smith's statements have merely elaborated on his initial explanation — not added "an entirely new rationale to [his] explanation." EEOC v. Delta Chem. Corp., 2008 WL 4833098, at *1-8, 2008 U.S. Dist. LEXIS 91480, at *24-25 (D.Md.2008).
Smith and Link originally disclosed to Plaintiff that he was being terminated as a result of a RIF. Smith further disclosed that part of the reason Plaintiff was terminated was because Hickory White was no longer funding roofing projects — i.e., projects of the sort Plaintiff was working on.
There is nothing inconsistent between Hickory White's development of new business objectives, driven by decreased departmental funding, and a "consideration of which skill sets of which employees would be best used in which positions in order to implement" those new objectives. See, e.g., Calobrisi, 2015 WL 1349627, at *4, 2015 U.S. Dist. LEXIS 37014, at *16. Smith's elaboration on the decision-making process makes clear that the department's decreased funding, which impacted its ability to continue undertaking the type of work assigned to Plaintiff, affected the outcome of the RIF. Indeed, each of Smith's statements are undisputed, consistent, and constitute the same "central justification"
Further, Plaintiff has not demonstrated that Smith's declaration is inconsistent with any tangible evidence. The only physical evidence cited by Plaintiff is a 2008 evaluation, drafted by Smith, which shows that Smith rated Plaintiff and Powell with the same numerical designation in the category of "welding/machining" — giving both a score of "four out of five."
Plaintiff also argues that Smith's reasoning demonstrates pretext because he "was given no criteria" by which to make a decision. [Doc. No. 19] at pp. 10-11 (Plaintiff's Response Brief). This is a mischaracterization of Smith's testimony. While Plaintiff is correct in that Smith was not
Next, Plaintiff asserts that Defendants' reasons are pretext because Smith "did not review personnel files, training records, previous assessments, or job descriptions" and did not "compare [the] experience or actual skills" of the maintenance employees before deciding whom to terminate. [Doc. No. 19] at pp. 10-11 (Plaintiff's Response Brief). These arguments must likewise fail. Importantly, Plaintiff's contention that Smith did not engage in a comparative analysis of the employees' skills, as such relate to Hickory White's needs, as he perceived each to be, is demonstrably refuted by the record testimony. The Court has discussed Smith's comparative analysis at length throughout this Order and will not repeat that discussion here. Moreover, Smith testified that there was no need to review Hickory White's files or records because he believed he sufficiently understood the five maintenance employees' qualifications and skills so as to arrive at a decision without a lengthy investigation. Smith also testified that any such records would not assist in his evaluation because they were "out of date" and not particularly relevant to his inquiry, which was focused on Hickory White's future needs. Smith testified that he utilized his opinion of the employees' skills to determine which of them would comprise the residual workforce that best fit Hickory White's existing and future needs. Plaintiff has cited no authority requiring an employer to perform an exhaustive review of its employment records before arriving at a decision to terminate an employee through implementation of a legitimate RIF policy. Indeed, the adequacy of Smith's investigation is not at issue; "the issue is whether discriminatory [or retaliatory] animus motivated" Plaintiff's termination. See Tucker v. Thomas Jefferson Univ., 484 Fed.Appx. 710, 712 (3d Cir.2012).
Throughout this litigation, Plaintiff has repeatedly suggested that Smith's decision must have been based on unlawful motives because Plaintiff subjectively evaluates his own skills and experience higher than those of Thad Powell, a fellow maintenance worker and the only comparator employee identified in the record.
Further, even if Plaintiff was more qualified than Powell, he has offered no evidence which shows that Smith knew or believed such to be true, or that Smith did not actually believe that Childress, Crawford, and Powell were better qualified for retention purposes.
"[T]here is nothing unlawful about an employer's basing its hiring decision on subjective criteria," so long as the employer's explanation of its reasons are "clear and specific in order to afford the employee a full and fair opportunity to demonstrate pretext." Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 105 (2d Cir.2001). Though subjective in some respects, Smith's evaluation and decision-making process was not of the type rejected by courts as "wholly subjective and unarticulated" — Smith both articulated his criteria and the basis on which it was developed. W. v. Mando Am. Corp., 2010 WL 1905032, at *3, 2010 U.S. Dist. LEXIS 46784, at *3 (M.D.Ala.2010) (finding the employer's reasoning not too subjective where its stated reason for favoring other employees over plaintiff was that plaintiff "would not work well with others"); see also Chapman v. AI Transp., 229 F.3d 1012, 1034 (11th Cir. 2000) ("[S]ubjective reasons are not the red-headed stepchildren of proffered nondiscriminatory explanations for employment
Plaintiff also argues that "statistical" evidence and the temporal proximity between Plaintiff's FMLA leave and his termination demonstrate pretext. First, Plaintiff's attempt to show pretext by arguing that "37.5%" of the employees terminated in the layoff (i.e., three employees — Plaintiff, Chaffin, and an employee named "Brooks") were on FMLA leave at the time of the RIF, and that other employees had been terminated in the past after having utilized FMLA leave, necessarily fails. [Doc. No. 19] at pp. 7, 18 (Plaintiff's Response Brief). Plaintiff has only presented evidence that two employees (Plaintiff and Chaffin) were terminated by Smith while on FMLA leave.
Because his statistical evidence is irrelevant to the Court's inquiry, Plaintiff is left to argue that, out of the five maintenance employees constituting the pool subject to the 2013 RIF, Smith chose the two who were on FMLA leave in January 2013. See
Moreover, Plaintiff fails to show that the temporal proximity between his firing and his leave/eye surgery is sufficient to show pretext. Though Plaintiff has correctly pointed out that the temporal proximity of his discharge to his use of FMLA leave is sufficient to establish a prima facie case of retaliatory discharge, such evidence is not sufficient to create a jury issue on the question of pretext.
Finally, conspicuously absent from all of the Plaintiff's arguments are citations to any evidence tending to show that, even if the Defendants' reasons for applying the RIF against Plaintiff are false or inconsistent, sufficient evidence of disability discrimination or FMLA retaliation otherwise exists such that a rational trier of fact can find in favor of the Plaintiff at trial.
Specifically, both Smith and Walker repeatedly gave Plaintiff good reviews and congratulated him on his work. Plaintiff was never disciplined while employed by Hickory White. Under Smith's supervision, Plaintiff received a raise; under Walker, he was offered a promotion (though he ultimately declined). Plaintiff testified that he had a good relationship with both Walker and Smith, and Smith testified that he considered Plaintiff to be a "tremendous" asset to Hickory White. Plaintiff testified that he liked Smith and got along with him. Plaintiff testified that his requests for leave were never turned down, and that he never heard anyone make negative comments about his use of FMLA leave or his medical conditions. Indeed, Plaintiff's testimony shows that Hickory White was accommodating to his leave requests on multiple occasions. Plaintiff has offered no evidence showing that either Smith, Walker, Crawford, or Childress (all persons with some sort of supervisory authority over him) held any discriminatory or retaliatory animus toward him. Moreover, the record shows that Plaintiff has not been replaced since being terminated. See [Doc. No. 16-13] at pp. 5-7 (Smith Deposition). Most critically, however, when asked by the defense whether he thought he was discriminated against, Plaintiff responded by admitting: "I don't know." See [Doc. No. 16-2] at pp. 49-50 (Plaintiff Deposition). At best — Plaintiff has created only a "weak issue" of fact regarding actual discrimination and retaliation vel non. This is insufficient to create a genuine issue of material fact for trial. See Reeves, 530 U.S. at 148, 120 S.Ct. 2097.
While the Court acknowledges that Plaintiff earnestly disagrees with Smith's decision to terminate him; absent a showing of unlawfulness, federal law provides no remedy for the effects of mere business decisions respecting Plaintiff's employment status. Based on the evidence and arguments submitted by the parties, the Court finds that there is no genuine issue of material fact regarding whether the Defendants discriminated against Plaintiff on the basis of his alleged disability, or whether they retaliated against him for his lawful use of FMLA leave.
Plaintiff conceded in his response brief that he could not proceed on his ADEA claim under Stokes v. Westinghouse Savannah River Co., 206 F.3d 420 (4th Cir. 2000). See [Doc. No. 19] at pp. 19-20 (Plaintiff's Response Brief). Plaintiff's concession, coupled with his failure to oppose Defendants' arguments, is fatal to his federal ADEA claim. See, e.g., Bronitsky v. Bladen Healthcare, LLC, 2013 WL 5327447, at *1-2, 2013 U.S. Dist. LEXIS 134820, at *3-4 (E.D.N.C.2013); Harris v. hhgregg, Inc., 2013 WL 1331166, at *4, 2013 U.S. Dist. LEXIS 45394, at *11-12 (M.D.N.C.2013); Allen v. Fed. Express Corp., 2011 WL 1260225, at *9, 2011 U.S. Dist. LEXIS 34812, at *26 n. 5 (M.D.N.C. 2011); Eady v. Veolia Transp. Services, Inc., 609 F.Supp.2d 540, 560-61 (D.S.C. 2009) ("The failure of a party to address an issue raised in summary judgment may be considered a waiver or abandonment of the relevant cause of action."); Brand v. N.C. Dep't of Crime Control & Pub. Safety, 352 F.Supp.2d 606, 618 (M.D.N.C.2004); accord Ferdinand-Davenport v. Children's Guild, 742 F.Supp.2d 772, 777 (D.Md.2010); Jones v. Family Health Ctrs., Inc., 323 F.Supp.2d 681, 690 (D.S.C.2003); Mentch v. E. Sav. Bank, FSB, 949 F.Supp. 1236, 1247 (D.Md.1997). Accordingly, Defendants' Motion is
Plaintiff has also plead and argued that the Defendants interfered with his FMLA rights by terminating his employment. To establish a claim for FMLA interference, an employee must prove that: (1) he was an eligible employee; (2) his employer was covered by the statute; (3) he was entitled to leave under the FMLA; (4) he gave his employer adequate notice of his intention to take leave; and (5) the employer denied him FMLA benefits to which he was entitled. See Rodriguez v. Smithfield Packing Co., 545 F.Supp.2d 508, 516, 523 (D.Md.2008). Plaintiff has only argued that Defendants interfered with his FMLA rights by terminating him and refusing to allow him to return to his prior position at the conclusion of his leave period. See [Doc. No. 19] at pp. 14 n.13, 15 (Plaintiff's Response Brief). "The Fourth Circuit analyzes claims that an employer failed to restore an employee to his or her pre-FMLA position under the interference theory...." Santorocco v. Chesapeake Holding Co., LLC, 2010 WL 2464972, at *4, 2010 U.S. Dist. LEXIS 58160, at *10 (D.Md.2010) (citing Yashenko v. Harrah's N.C. Casino Co., 446 F.3d 541, 550-51 (4th Cir.2006)). An FMLA interference claim differs from an FMLA retaliation claim in that "motive is largely irrelevant when analyzing an interference claim." See Santorocco, 2010 WL 2464972, at *4, 2010 U.S. Dist. LEXIS 58160, at *11. However, "FMLA leave does not provide an employee any greater rights than he or she would have had without taking leave." Mercer v.
Assuming Plaintiff has established a prima facie case of interference, the Plaintiff's claim must still fail if it is shown that he was discharged for a legitimate reason — the 2013 RIF — and that Plaintiff "would not otherwise have been employed at the time reinstatement is requested."
See Santorocco, 2010 WL 2464972, at *5, 2010 U.S. Dist. LEXIS 58160, at *14 (internal quotation marks and citation omitted). Here, the undisputed evidence shows that Hickory White was in dire financial straits during the time period in which Plaintiff took his FMLA leave for eyelid surgery. The evidence shows that, as a result of the company's financial troubles, upper management made the decision to institute a reduction-in-force consisting of eight employees. Those same individuals determined that two persons had to be laid off from the maintenance department, the same department which employed Plaintiff. While the decision regarding whom to terminate was left to Smith as "acting" supervisor of the department, the decision to institute the RIF and to lay off two maintenance employees did not come from Smith, nor was Smith a part of that decision. Plaintiff has produced no evidence to suggest that FMLA status played any role in those individuals' decision to institute the RIF or to employ it in the maintenance department. Thus, it is undisputed that, regardless as to whether Plaintiff was on FMLA leave, the 2013 RIF would have been implemented, and it would have been applied against two maintenance employees.
Now, Plaintiff does not dispute that two of the five maintenance employees should have been retained — i.e., Childress and Crawford. Thus, only three maintenance employees remained that could be subjected to the 2013 RIF — Powell, Chaffin, and
Plaintiff argues that the case law only supports granting summary judgment where an entire department or job title is eliminated, or where preexisting performance or conduct issues would support the termination of an employee seeking FMLA leave. See [Doc. No. 19] at p. 18 (Plaintiff's Response Brief). However, the Court does not read the case law as restrictively as Plaintiff. Rather, the Fourth Circuit requires only that the record evidence show that the Plaintiff "would not have otherwise been employed at the time reinstatement is requested;" or, in other words, that "[Plaintiff] would have been discharged had he not taken leave." Yashenko, 446 F.3d at 547. Here, the evidence shows that a legitimate RIF was instituted out of operational and business necessity. It also shows that the relevant decision-maker had to eliminate two employees out of three prospective candidates, two of which were on FMLA leave. The record contains no evidence that the decision to implement the RIF took into account FMLA use or status as an element of decision. The evidence also shows that the Plaintiff's position has not been filled with a replacement in the years since the RIF. As is discussed in Section III.B.3., supra, Plaintiff has proffered no evidence to demonstrate a triable issue as to the veracity of Defendants' explanation or reasoning.
Critically, Plaintiff's position would lead to the type of "anomalous result" rejected by the Fourth Circuit in Yashenko. See Yashenko, 446 F.3d at 548. Under Plaintiff's theory, Plaintiff and Chaffin would have been given "greater rights than those provided to" Powell (and Crawford and Childress) merely because Plaintiff and Chaffin were both on FMLA leave at the time the 2013 RIF was implemented. See Yashenko, 446 F.3d at 548. This scenario would have resulted in two anomalous results: (1) Powell would have to have been terminated even though Smith considered him to be more qualified than Plaintiff and Chaffin; and (2) Smith would have had to either refuse to implement the command from upper management to terminate two employees from maintenance (thus, likely placing his own job in jeopardy), or he would have had to terminate another employee whom he considered to be more qualified than Plaintiff and Chaffin — i.e., either Crawford or Childress. This Court, like the Fourth Circuit, does not construe the FMLA to impose such an unusual burden on the legitimate business decisions faced by employers under those types of circumstances; to do so would "upset[ ] the careful balance that Congress has created between employees' need for protected family and medical leave and employers' need to protect their legitimate business interests — an outcome wholly inconsistent with the purposes and goals of the FMLA." See Yashenko, 446 F.3d at 548.
All of the record evidence, when compared to Plaintiff's mere speculations (which are insufficient to overcome summary judgment), persuades the Court that Plaintiff would not have remained employed by Hickory White had he not been on FMLA leave at the time the 2013 RIF was implemented. Indeed, the FMLA
Like his ADEA claim, Plaintiff concedes that summary judgment should be entered against his age-based NCEEPA claim. See [Doc. No. 19] at pp. 19-20 (Plaintiff's Response Brief). Accordingly, Defendants' Motion is
With respect to Plaintiff's remaining state law disability discrimination claim under the NCEEPA, the Court is similarly required to grant summary judgment in favor of the Defendants. Under North Carolina law, a disability discrimination claim tracks the standards required to prove a federal claim under the ADA. See, e.g., N.C. Dep't of Corr. v. Gibson, 301 S.E.2d 78, 82-84, 308 N.C. 131 (N.C.1983); Youse v. Duke Energy Corp., 614 S.E.2d 396, 401-402, 171 N.C. App. 187 (N.C.Ct. App.2005). If Plaintiff's ADA claim fails, then his state-based disability claim must also fail. See Youse, 614 S.E.2d at 402 ("[S]ince the Middle District determined that plaintiff had failed to prove, under the ADA, that she was discriminated against based on her disability, we find that plaintiff's state law claim based on the same factual allegation of disability discrimination is collaterally estopped."). As is discussed above, the Court has granted summary judgment to the Defendants on Plaintiff's claim of disability discrimination made pursuant to the ADA. See supra. Accordingly, the Court
Because the Court has granted summary judgment in favor of the Defendants on all of Plaintiff's substantive claims, the Court declines to address any of the Defendants' arguments regarding Plaintiff's claimed damages. Those arguments are mooted as a result of the holdings discussed throughout this Order.
