BROWN v. MARTIN MARIETTA MATERIALS, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ETHAN C. BROWN, )

)

Plaintiff, )

v. )

)

MARTIN MARIETTA MATERIALS, ) 1:18CV717

INC., )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Ethan C. Brown alleges that his former employer, Defendant Martin

Marietta Materials, Inc. (“Martin Marietta” or “the company”) discriminated against

him in violation of the Americans with Disabilities Act (“ADA”) and North Carolina

public policy and retaliated against him in violation of the Family Medical Leave Act

(“FMLA”). This matter is before the Court on Martin Marietta’s Motion for

Summary Judgment [Doc. #26]. For the reasons explained below, the motion is

granted in part and denied in part.

I.

The following facts are undisputed unless otherwise noted. On March 22,

2017, Martin Marietta terminated Brown’s employment after his FMLA leave

expired because, as of that date, he remained under a driving restriction that

prevented him from operating a haul truck at the company’s quarries after suffering

an epileptic seizure. (Decl. of Stacy Kerns ¶¶ 20-21 (Aug. 28, 2019) [Doc. #27-1];

Aff. of Ethan C. Brown ¶ 12 (Oct. 3, 2019) [Doc. #31].)

Martin Marietta owns and operates quarries at which it mines and refines

natural resource-based building materials. (Id. ¶ 3.) The company’s quarry

operations remove large rock from the ground, transport it to facilities at the quarry

to reduce and refine for use at construction sites, and load the material into

customers’ and distributors’ vehicles. (Id. ¶ 4.)

Brown was hired in May 2014 as a part-time Utility Person at Martin

Marietta’s quarry in Woodleaf, North Carolina before his position became full-time

in September 2014. (Id. ¶ 8; Employee Change Notice (May 27, 2014), Ex. 2 to

Kerns Decl.1; Employee Change Notice (Sept. 1, 2014), Ex. 3 to Kerns Decl.; Dep.

of Ethan C. Brown 24:21-25:2 (Aug. 1, 2019) [Docs. #27-3, #31-32].)

On August 3, 2015, according to Brown’s personnel file, his position

changed to that of a Truck Driver-Heavy Off Highway. (Kerns Decl. ¶ 10;

Employee Change Notification (Aug. 3, 2015), Ex. 4 to Kerns Decl.; Decl. of

Dennis Hellard ¶ 3 (Aug. 27, 2019) [Doc. #27-2].) Martin Marietta considers the

essential function of this position to be driving and operating a heavy equipment

vehicle to move rock product about the facility. (Kerns Decl. ¶ 11.) The job

description for the position of Truck Driver – Heavy Off Highway applicable to

Brown, according to Kerns, summarized the position as follows:

Responsible for driving/operating heavy equipment vehicle to move

rock product to selected intake crushing/screening site and deposit

load into intake area. Accountability of the safe and timely

transportation of such loads will be imperative. The ability to operate

1 Brown also submitted some of his Employee Change Notices. (See Doc. #31-4.)

2 Each party submitted portions of Brown’s deposition.

hand and foot controls in vehicle. Operative [sic] service equipment

and perform regular maintenance on equipment. Perform daily

inspection of vehicle at site. Perform pre-operation check of

equipment and complete documentation.

(Job Description 2017-2984, Truck Driver – Heavy Off Highway, Ex. 5 to Kerns

Decl.) The job description that Martin Marietta submitted to the EEOC differs from

this in some respects:

Operate 40-50 ton haul trucks loaded with rock. Assist with

maintenance in the quarry, and operation of pit and yard loaders.

Perform a pre-shift inspection, minor maintenance, and repairs on the

haul truck. Hours of operation are determined by customer demand.

Must be able to work extended hours and Saturdays.

(Letter from Matt Bates to Rafael Nieves (Dec. 12, 2017), Ex. A to E. Brown Aff.)

At the time of his deposition, Brown testified that he could not recall when

he began driving the haul trucks at the quarry or when he was trained to do so, but

he did remember that he did not drive them when he started as a Utility Person in

2014. (Brown Dep. 31:11-13, 33:4-7, 33:20-22.) But, he estimated he started

driving trucks in 2015 and remembered the training occurred at the Woodleaf

facility with experienced drivers. (Id. at 33:8-35:15.)

In his affidavit in opposition to summary judgment, Brown maintains that no

one told him that his position was changing from Utility Person to Truck Driver and

that it was “[a]s a Utility Person [that he] learned to drive a truck.” (E. Brown Aff.

¶ 8.) The job description for Utility Person that Martin Marietta provided to the

EEOC and Brown quoted in his affidavit does describe “maintain[ing] . . . water

truck to clean around plant equipment and to maintain roadways and parking

areas” and “operat[ing] a water truck to limit airborne dust” among other

maintenance duties. (Letter from Bates to Nieves (Dec. 12, 2017); E. Brown Aff.

¶ 5.) It was not until Brown went out on FMLA leave that he saw his job title was

Truck Driver. (Id. ¶ 9.) Until then, he believed he was a Utility Person, his job

duties had not changed, and “everyone in the quarries was pretty much expected

to do every type of job at the quarries.” (Id. ¶¶ 8, 9.)

Brown, like other employees, was cross-trained “as a good business

practice”. (Hellard Decl. ¶ 6.) For example, he was trained to be able to fill in for

the Weighmaster approximately two weeks a year when the full-time Weighmaster

took vacation. (Id.) Brown avers that he was “called on to perform all variety of

tasks that did not involve driving a truck or operating heavy equipment” and

“continued to do whatever needed to be done on any particular day, including

driving a truck [and] also all of the duties listed for a Utility Person.” (E. Brown Aff.

¶ 8; see also id. ¶ 7.) However, Martin Marietta “did not expect that non-driving

functions would or could become the exclusive job of employees who operated

[its] heavy equipment.” (Hellard Decl. ¶ 6.)

At his deposition, Brown could not recall how often he drove a truck and

described covering for co-workers who were on vacation, at an appointment, or

out sick. (Brown Dep. 44:2-25.) Nevertheless, he acknowledged that he drove a

truck more often than he did anything else such as working as a Weighmaster,

painting, doing lawn care, cleaning, inspecting fire extinguishers, or conducting

maintenance. (Id. at 45:1-46:3.) Brown’s plant manager, Dennis Hellard, described

driving as “the main function of [Brown’s] job” and estimated that Brown “spent

85% to 90% of his time operating a truck”, which he drove “nearly every day.”

(Hellard Decl. ¶¶ 2, 3, 5.)

Since childhood, Brown has had epilepsy which is controlled by medication.

(Aff. of Renae Brown ¶ 2 (Oct. 3, 2019) [Doc. #32].) On December 24, 2016, he

suffered an epileptic seizure for the first time in five years. (E. Brown Aff. ¶ 12; R.

Brown ¶ 2.) His physician wrote a note seeking to excuse him from work from

December 27 through December 30. (Letter from Dr. Jane Gibert Boggs (Dec. 27,

2016), Ex. D to E. Brown Aff. [Doc. #31-4].) Brown called Martin Marietta’s

Senior Human Resources Administrator for the Mid-Atlantic Division, Stacy Kerns,

to tell her that he “was going to be out of work for six months due to epilepsy”

and to inquire about FMLA leave. (Brown Dep. 66:19-67:10.) On December 28,

Kerns sent Brown a copy of the company’s Notice of Eligibility and Rights and

Responsibilities Form pursuant to the FMLA, which Brown completed and returned

the same day. (Kerns Decl. ¶ 12; Letter from Kerns to Brown (Dec. 28, 2016), Ex.

6 to Kerns Decl.); Employee Request for Family or Medical Leave (Dec. 28, 2016),

Ex. 7 to Kerns Decl.).

Martin Marietta instructed Brown to note “on all the forms [he] submitted for

FMLA and disability purposes” that he was a truck driver. (R. Brown Aff. ¶ 4.)

Among the pre-printed bases upon which to seek leave, Brown selected “[f]or a

serious health condition that makes me unable to perform the essential functions of

my job” with leave to start December 27, 2016 and an expected date of return

“06/2017”. (Id.)

As required, Brown’s physician certified his serious health condition where it

was noted that he was a Truck Driver – Heavy Off Highway with the essential job

function of driving a truck. (Certificate of Health Care Provider (Jan. 9, 2017), Ex.

7 to Kerns Decl.3) She described that, as a result of Brown’s epileptic seizure on

December 24, he was “unable to drive for six months past the last seizure” and

estimated that Brown was incapacitated from December 24, 2016 to June 24,

20164. (Id.) He was prescribed medication, would need to attend follow-up

appointments every three months, could suffer episodic flare-ups preventing him

from performing his job functions, and was estimated to have a flare-up once a

year. (Id.) On January 26, 2017, Martin Marietta approved Brown’s FMLA request

and granted him twelve weeks leave. (Kerns Decl. ¶ 15; Designation Notice (Jan.

16, 2017), Ex. 9 to Kerns Decl.) Brown was paid for eight weeks of that leave

through Martin Marietta’s Sickness and Accident Benefit policy, which provides

“certain benefits to hourly employees who are approved for medical leave and are

unable to work because of a non-occupational accident or sickness not covered by

workers’ compensation.” (Kerns Decl. ¶¶ 15, 23.)

3 Brown also submitted his physician’s certification. (See Doc. #31-4.)

4 The physician noted Brown’s six-month period of incapacity as “12/14/16 –

6/24/16” because he suffered his seizure on December 14, 2016. The June 24,

2016 date appears by all reasonable inferences to be a typographical error.

Meanwhile, Brown’s mother emailed a series of questions to Kerns on

January 3 regarding Brown’s leave. (Email from R. Brown to Kerns (Jan. 3, 2017),

Ex. B to R. Brown Aff.) His mother inquired if he would be eligible for his long-

term disability benefit “since the doctor said no driving for 6 months” to which

Kerns responded that he could “certainly apply for it” even though there was a six-

month waiting period and they hoped he would be back to work then. (Id.) His

mother also asked, “What accommodations if any for Ethan are being discussed?

Who should we contact to discuss the possibility of accommodations?” (Id.) She

explained that Brown “would love to return to work” and reminded Kerns that

Brown was trained and worked in several positions at the Woodleaf and Kannapolis

quarries, including welding, maintenance, Weighmaster, and office duties. (Id.)

Kerns responded that, even though Brown wanted to work, his doctor said he

could not work. (Id.) Kerns explained that the company’s doctor and the

HR/Safety Manager, Kirk Grissett, “would be the ones to determine any

accommodations”, but “due to Ethan’s request”, Kerns had “not said anything to”

them. (Id.) She offered to discuss it with Grissett if Brown permitted her to do so

and otherwise directed the Browns to contact Grissett directly. (Id.) She also

informed them that there was nothing else to do at that point other than to discuss

Brown’s illness with Hellar, the plant manager, and Grissett. (Id.)

In mid-February 2017, Brown spoke with Grissett about opportunities to

return to work after his FMLA leave expired in March, but before Brown could drive

a truck again. (E. Brown Aff. ¶ 13.) He explained to Grissett that even though he

could not operate heavy equipment for six months, his doctor cleared him “to work

and do the maintenance, be on the ground, wash down, weld, run the scales”.

(Brown Dep. 67:18-25.) Grissett repeatedly told Brown “that wasn’t a job title”.

(Id. at 67:25-68:1.) Brown called Grissett “numerous” other times to inquire about

job openings and “just to come and fill [in] – let somebody else run the truck in my

place until the other three months were over”, to “[s]ee if they would make

accommodations for [him] to fill in or to do somebody else’s work while they were

doing another job.” (Id. at 68:21-69:4, 73:7-13.) For example, he asked Grissett

to assign him to the groundsman position where the groundsman would drive

Brown’s truck while Brown ran the scales, did the maintenance in the pit, and

welded. (Id. at 69:12-70:7.) Brown also asked Grissett if he “could fill in for [the

Weighmaster] while he was doing quality control”, but Grissett “kind of left it

hanging[;] [t]here wasn’t really [an] answer to it.” (Id. at 72:7-25.) Grissett either

gave Brown “no straight answer”, “kind of left it hanging”, or told him no. (Id. at

68:21-69:11.) Brown asked whether there were any openings at the company’s

other facilities in Statesville, Hickory, Denver, Kannapolis, Pomona, and Reidsville

and was told no. (Id. at 70:8-15.) Despite Brown’s repeated inquiries of Grissett,

the response was “there’s no openings, that’s not your job title.” (Id. at 70:15-18;

see also E. Brown Aff. ¶ 13.)

On February 19, Brown’s mother emailed Kerns again and informed her that

Grissett told Brown there were no accommodations available for his position.

(Email from R. Brown to Kerns (Feb. 29, 2017), Ex. B to R. Brown Aff.) She asked

Kerns to describe Martin Marietta’s compliance with the ADA in this situation and

inquired further about Brown’s long-term disability. (Id.) The Browns received no

response. (E. Brown Aff. ¶ 14; R. Brown Aff. 9.)

On March 13, Brown received a letter from Grissett informing him that his

FMLA leave was to expire on March 21, warning Brown that if he were “unable to

return to work on March 22, 2017 [his] employment with Martin Marietta [would]

be terminated”, and inviting him to contact Grissett if he had any questions or

concerns. (Letter from Grissett to E. Brown (Mar. 10, 2017), Ex. D to E. Brown

Aff.; E. Brown Aff. ¶ 16.) Brown contacted Grissett and inquired about his long-

term disability, but was told “they weren’t going to consider that.” (Brown. Dep.

68:10-14; 80:16-25.) Brown’s mother also emailed Kerns and Grissett and noted

that they had not received any answers to their questions from February 19 even

though Brown’s FMLA leave was to expire on March 21. (Email from R. Brown to

Kerns & Grissett (Mar. 14, 2017), Ex. B to R. Brown Aff.) She expressed concern

that Martin Marietta “would not/could not make accommodations even though[]

Ethan submitted accommodation requests multiple times since January and each

time was told that there were no accommodations available.” (Id.) She once again

inquired about Brown’s long-term disability benefits. (Id.) She concluded by telling

Kerns and Grissett that Brown had begun the process of filing a charge of

discrimination against Martin Marietta with the EEOC. (Id.) On March 16, Grissett

responded that, among other things, an enrollment packet for long-term disability

had recently been mailed to Brown. (Email from Grissett to R. Brown (Mar. 16,

2017) [Doc. #31-4].)

In his affidavit in opposition to summary judgment, Brown avers that he

could have returned to work at the expiration of his FMLA leave with reasonable

accommodations including, “(a) temporary assignment as a welder, mechanic,

weigh master, utility person, office worker, laborer, or groundsman at any of

approximately 30 locations in central North Carolina, then full responsibilities

without accommodations after 90 days; (b) transfer to a similar open assignment

at any of 30 or more locations; (c) providing an additional finite amount of unpaid

leave.” (E. Brown Aff. ¶ 18.) Yet, he “was never given an opportunity to discuss

or explore any of these possibilities because [Martin Marietta] refused to engage in

the interactive process at all”, all while “stonewall[ing] and fail[ing] to respond”.

(Id. ¶ 17.)

In contrast to the stonewalling and silence Brown describes, Martin Marietta

contends that it was working to try to accommodate him. “During the time of

Brown’s FMLA leave, Martin Marietta investigated whether there was any way to

accommodate Brown’s driving restriction”, but because “driving was an essential

function of Brown’s job as a truck driver, there was no way to return [him] to his

position during the period of his restriction.” (Kerns Decl. ¶ 16.)

On February 20, 2017, Grissett completed a Reasonable Accommodation

Analysis in which he checked “No” when asked if leave would be an adequate

accommodation, if modifications to non-essential job functions could be made, if

there were open jobs Brown could perform in light of his restrictions, and if any

other alternative accommodations were considered. (Reasonable Accommodation

Analysis [Doc. #32-5].)

The company “evaluated whether Brown could transfer to any other vacant

job of equivalent pay and status, or even lesser pay and status, during the time in

which his driving restriction was in effect.” (Kerns Decl. ¶ 17.) However, Brown

was not qualified for any position that was or became available between January

1, 2017 and June 30, 2017 at Woodleaf or Denver, Kannapolis, Pomona, and

Hickory, facilities that were geographically proximate to Woodleaf, North Carolina.

(Id. (citing Ex. 10 to Kerns Decl.).) All but one position required the operation and

driving of heavy machinery, either as a Haul Unit, Loader, Yard Loader, or Truck

Driver. (Id. ¶ 18; see also Ex. 10 to Kerns Decl.) The other position was a 2nd Shift

Production/Plant Leadperson that opened in May, but the position required at least

one year of supervisory or leadership experience. (Id. ¶ 19.) Brown had no such

previous experience nor any while at Martin Marietta. (Id.)

As for Brown’s requests to reassign job duties, Hellar averred that

attempting to assign responsibilities so that Brown did not drive a truck “would

have disrupted [the company’s] operations, would have introduced confusion about

job responsibilities, and ultimately would have risked the safety of [the company’s]

operations.” (Hellar Decl. ¶ 7.) During Brown’s absence, Martin Marietta did

“alternatively assign[] driving duties to supervisory personnel, assign[] truck drivers

from other facilities to the Woodleaf facility, and requir[e] existing truck drivers to

perform additional driving duties.” (Id. ¶ 8.) However, these “[c]hanges in

assignments place stress on employees, often require the payment of additional

overtime wages, and disrupt operations that are not a sustainable way to account

for an employee’s absence.” (Id.) The company also “could not simply hire a

temporary worker to drive a truck in Mr. Brown’s absence” “[b]ecause of the

complexities and dangers of quarry operations”. (Id.) As a result, “[s]hortly after

Martin Marietta terminated Brown’s employment, it hired a new full-time

equipment operator at the Woodleaf facility so that it could end these additional

burdens and disruptions.” (Id. ¶ 9.)

Martin Marietta terminated Brown on March 22, 2017 after an email

exchange among Grissett, Kerns, and the Director of Human Resources Matt Bates

in which Kerns asked if she was to terminate Brown or place him in unpaid status.

(Emails among Kerns, Grissett, Bates (Mar. 22, 2017) [Doc. #32-6].) Bates

instructed Kerns to terminate Brown. (Id.) The company has a “policy and practice

to terminate the employment of individuals who do not return to work after their

approved medical leave has ended if there are no reasonable accommodations

available that would enable the employee to return to work and no alternative

positions are available.” (Kerns Aff. ¶ 22.)

Brown alleges that Martin Marietta discriminated against him based on his

disability by terminating his employment (Count I5) and failing to accommodate his

5 In paragraph 34 of the Complaint, as part of Count I—Disability Discrimination

(Termination), Brown alleges that he was terminated in retaliation for exercising his

disability (Count II) all in violation of the ADA, retaliated against him in violation of

the FMLA (Count III), and wrongfully discharged him in violation of North Carolina’s

public policy (Count IV). Martin Marietta has moved for summary judgment on all

counts.

II.

“Summary judgment is appropriate when, viewing the facts in the light most

favorable to the nonmoving party, ‘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).” Groves v. Commc’n Workers of Am., 815 F.3d 177, 181 (4th Cir. 2016).

The moving party bears the initial burden of establishing “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) (citing Fed. R. Civ. P. 56(c)6). 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.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247-48 (1986). A dispute is genuine if a reasonable

rights under the ADA and advising Martin Marietta that he was filing an EEOC

charge. Martin Marietta has not moved for summary judgment on this retaliation

claim, to the extent one is alleged.

6 Rule 56(c) was amended effective December 1, 2010, but the substance of the

rule did not change.

jury, based on the evidence, could find in favor of the non-moving party. Id. at

248. The materiality of a fact depends on whether the existence of the fact could

cause a jury to reach different outcomes. Id. The court cannot weigh the

evidence, fail to credit contradictory evidence, or make credibility determinations.

Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651 (4th Cir. 2018).

III.

Under the ADA, a covered employer is prohibited from discriminating

“against a qualified individual on the basis of disability”. 42 U.S.C. § 12112(a). A

“qualified individual” is defined as “an individual 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). As is relevant here,

discrimination not only includes termination, 42 U.S.C. § 12112(a), but also the

failure to make “reasonable accommodations to the known physical or mental

limitations of an otherwise qualified individual with a disability who is an . . .

employee”, 42 U.S.C. § 12112(b)(5)(A).

A.

A reasonable accommodation is a “[m]odification[] or adjustment[] to the

work environment, or to the manner or circumstances under which the position

held . . . is customarily performed, that enable[s] an individual with a disability who

is qualified to perform the essential functions of that position”. 29 C.F.R.

§ 1630.2(o)(1)(ii)7. A job function “may be essential because the reason the

position exists is to perform that function”. 29 C.F.R. § 1630.2(n)(2). Whether a

function is essential is determined by, but not limited to, the “(i) [t]he employer’s

judgment as to which functions are essential; (ii) [w]ritten job descriptions prepared

before advertising or interviewing applicants for the job; (iii) [t]he amount of time

spent on the job performing the function; (iv) [t]he consequences of not requiring

the [employee] to perform the function . . . .” 29 C.F.R. § 1630.2(n)(3). Essential

job functions do “not include the marginal functions of the position.” 29 C.F.R.

§ 1630.2(n)(1).

Reasonable accommodations that allow an employee to perform the

essential functions of his position may include job restructuring, 42 U.S.C.

§ 12111(9)(B), by “reallocating or redistributing nonessential, marginal job

functions”, 29 C.F.R. § 1630.2(o) App.; reassignment to a vacant position, 42

U.S.C. § 12111(9)(B); or “the use of accrued paid leave or prov[ision] [of]

additional unpaid leave for necessary treatment”, 29 C.F.R. § 1630.2(o) App. “To

determine the appropriate reasonable accommodation it may be necessary for the

covered entity to initiate an informal, interactive process with the individual with a

disability in need of the accommodation” that “identif[ies] the precise limitations

7 The Fourth Circuit Court of Appeals considers these regulations to be

“interpretive guidelines for the ADA”. Myers v. Hose, 50 F.3d 278, 283 (4th Cir.

1995); cf. Jacobs v. N.C. Admin. Office of the Cts., 780 F.3d 562, 579 n.18 (4th

Cir. 2015) (assuming the regulations’ “reasonableness and declin[ing] to determine

what level of deference, if any, they are due” because the parties agreed that the

regulations were instructive).

resulting from the disability and potential reasonable accommodations that could

overcome those limitations.” 29 C.F.R. § 1630.2(o)(3).

“[T]o establish a prima facie case against his employer for failure to

accommodate under the ADA, the plaintiff must show: (1) that he was an

individual who had a disability within the meaning of the statute; (2) that the

[employer] had notice of his disability; (3) that with reasonable accommodation he

could perform the essential functions of the position . . .; and (4) that the

[employer] refused to make such accommodations.” Wilson v. Dollar General

Corp., 717 F.3d 337, 345 (4th Cir. 2013) (internal quotations omitted) (alterations

in original).

1.

There is no dispute as to the first two elements. (See Br. in Supp. of Def.’s

Mot. for Summ. J. (“Br. in Supp.”) at 10 [Doc. #27].) Instead, Martin Marietta

argues that driving was the essential function of Brown’s job, there were no

vacant positions with duties that Brown could perform and for which he was

qualified, his proposed reallocation of job duties was not reasonable, and Martin

Marietta was not required to provide Brown an indefinite leave of absence. (Id. at

11-19.)

In response, Brown contests the assertion that driving was an essential

function of his position because he maintains that the parties disagree about

whether Brown was a Utility Person or Truck Driver at the relevant time. (Pl.’s

Resp. in Opp’n to Def.’s Mot. for Summ. J. [corrected] (“Pl.’s Opp’n”) at 10-13

[Doc. #33].) He also argues that there is a question of fact about whether Martin

Marietta satisfied its obligation to engage in the interactive process with Brown to

find a reasonable accommodation. (Id. at 13-20.) Finally, he argues that there is

evidence that there were reasonable accommodations available – returning Brown

to work as a Utility Person for ninety days, assigning him to a non-driving position

at one of the company’s thirty facilities relatively nearby, or affording him a finite

amount of unpaid leave. (Id. at 21-23.)

First, there appears to be no dispute that the essential function of the Truck

Driver – Heavy Off Highway is driving a truck, as evidenced by both job

descriptions applicable during the relevant period and the declarations of Martin

Marietta’s Senior Human Resources Administrator for the Mid-Atlantic Division and

Brown’s Woodleaf Plant Manager.

However, Brown attempts to create a dispute about whether or not his

position was that of a Truck Driver – Heavy Off Highway or a Utility Person. Yet,

there is no genuine dispute about this. It is true that the job description for Utility

Person includes the operation of a water truck. However, Brown was hired as a

Utility Person in 2014 and estimated that he began driving haul trucks in 2015

which is when his personnel file reflects that he became a Truck Driver. In his

affidavit in opposition to summary judgment, he maintains that his job duties never

changed, though, despite his deposition testimony to the contrary. “A genuine

issue of material fact is not created where the only issue is to determine which of

the two conflicting versions of the plaintiff’s testimony is correct.” Barwick v.

Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984). “If a party who has been

examined at length on deposition could raise an issue of fact simply by submitting

an affidavit contradicting his own prior testimony, this would greatly diminish the

utility of summary judgment as a procedure for screening out sham issues of fact.”

Id.

Furthermore, Brown’s personnel file consistently documented his job

changes, and Brown has not taken issue with the content of any of those

documents and even submitted some of his Employee Change Notices himself.

The May 27, 2014 Employee Change Notice reflects Brown’s “New Hire” as a

part-time Utility Person. The September 1, 2014 Employee Change Notice

evidences Brown’s move from a part-time Utility Person to full-time Utility Person.

Critically, the August 3, 2015 Employee Change Notice reflects Brown’s change in

position from Utility Person to Truck Driver.

In addition, when Martin Marietta had to adjust for Brown’s absence, it did

so by redistributing his driving duties by assigning driving duties to supervisors,

assigning truck drivers from other facilities to Woodleaf, and requiring existing

truck drivers to perform additional driving duties. Consequently, soon after

Brown’s termination, Martin Marietta hired a new full-time equipment operator.

These are not actions Martin Marietta would have taken if Brown were anything

other than a Truck Driver. Brown even acknowledged that he drove a truck more

than he performed any other function. Neither the fact that Brown was unaware

of his change in positions nor that he performed other duties creates a genuine

dispute about Brown’s position. As of March 2017, Brown was a Truck Driver,

the essential function of which was driving trucks.

There are genuine disputes of material fact, though, about the existence of

reasonable accommodations, whether Martin Marietta satisfied its duty to

participate in good faith in an interactive process to identify reasonable

accommodations, and whether those reasonable accommodations would cause

Martin Marietta undue hardship.

On the one hand, Martin Marietta was not required to reallocate the

essential job function of a Truck Driver – driving a truck – so that Brown could

perform the position’s marginal functions, nor was it required to move others out

of their positions so that Brown could perform their jobs. 29 C.F.R. § 1630.2(o)

App. (“An employer . . . is not required to reallocate essential functions.”).

Similarly, while job restructuring may be a reasonable accommodation, such

restructuring involves reallocating “nonessential, marginal job functions”. Id. After

all, a reasonable accommodation “is one that ‘enables [a qualified] individual with a

disability . . . to perform the essential functions of [a] position.’” Jacobs, 780 F.3d

at 581 (quoting 29 C.F.R. § 1630.2(o)(1)(ii)) (alterations in original) (emphasis

added). Furthermore, Brown’s “identifying specific, isolated tasks he could have

performed despite his physician’s restrictions is not sufficient”, Fields v. Clifton T.

Perkins Hosp., No. RDB-12-3254, 2014 WL 2802986, at *5 (D. Md. June 19,

2014), aff’d, 605 F. App’x 200 (4th Cir. June 3, 2015), because Martin Marietta

was not required to create a new position for him, Dicksey v. New Hanover Cty.

Sheriff’s Dep’t, 522 F. Supp. 2d 742, 748 (E.D.N.C. 2007) (citing Lamb v. Qualex,

Inc., 33 F. App’x 49 (4th Cir. Apr. 3, 2002)).

On the other hand, reassigning an employee to a vacant position may be a

reasonable accommodation. There is no dispute that there were no vacant

positions at Woodleaf, Denver, Kannapolis, Pomona, or Hickory from January 1,

2017 to June 30, 2017 for which Brown was qualified that were not heavy

equipment operators. Yet, Brown asked Grissett if there were openings at other

facilities, including Statesville and Reidsville, and was told no. Furthermore, Brown

testified that he was willing to return to work at “any location in the Greensboro

district” and then averred that he would have transferred to any of Martin

Marietta’s thirty facilities from Raleigh to Charlotte. None of these other facilities

are listed on the chart of open positions that Martin Marietta produced in discovery

that reflected its evaluation of vacant positions at other facilities.

Also, providing additional, finite unpaid leave for necessary treatment may

be a reasonable accommodation. 29 C.F.R. § 1630.2(o) App. Under Fourth Circuit

precedent, “a leave request will not be unreasonable on its face so long as it (1) is

for a limited, finite period of time; (2) consists of accrued paid leave or unpaid

leave; and (3) is shown to be likely to achieve a level of success that will enable

the individual to perform the essential functions of the job in question.” Wilson,

717 F.3d at 345 n.8. Cf. Myers, 50 F.3d at 283 (describing the ADA as “framing

the precise issue as whether an individual ‘can’ (not ‘will be able to’) perform the

job with reasonable accommodation” and holding “that reasonable accommodation

does not require the [employer] to wait indefinitely for [the individual’s] medical

conditions to be corrected, especially in light of the uncertainty of cure”). “The

employee must show that had he been granted leave, at the point at which he

would have returned from leave, he could have performed the essential functions

of his job.” Wilson, 717 F.3d at 346. “In determining whether leave would or

would not have enabled an individual to perform the essential functions of a

position, it is improper to consider . . . evidence of the individual’s abilities beyond

his or her proposed return date.” Id. at 346 n.8 (finding that “evidence Wilson later

suffered an additional medical setback and could not return to work until a year

later, is irrelevant to the question of whether he could have performed the essential

functions of his position if given two days of leave”).

Martin Marietta argues that affording Brown leave8 was not a reasonable

accommodation “because it would have done nothing to allow Brown to perform

the essential functions of his job.” (Br. in Supp. at 14.) The company is under the

impression that Brown would have needed an “indefinite leave of absence”

(emphasis added), because it reads Brown’s FMLA documentation to show

“Brown’s return to work was uncertain – six months after the date of his last

8 To the extent that Martin Marietta distinguishes Brown’s request for long-term

disability from a request for unpaid leave so that it may argue that the latter is a

“new proposal” raised during discovery that should be foreclosed, such an

argument misunderstands the employer’s duty to participate in the interactive

process as it is explained below. Furthermore, Grissett was aware as of February

20, 2017 that leave was a possible accommodation when he completed the

Reasonable Accommodation Analysis.

seizure” and relies on Brown’s possible “episodic flare-ups”. (Id. at 14-17.)

“Martin Marietta did not believe that there was a definite date on which Brown

could have returned to work”. (Kerns Aff. ¶ 28.) Yet, in a Disability Analysis

completed on February 20, 2017, Grissett was asked how long Brown’s

impairment would last, to which he responded, “Employee is unable to drive for six

months past the last seizure. 12/24/16 to 6/24/2017.” (Disability Analysis (Feb.

20, 2017) [Doc. #32-5].) This parallels Brown’s physician’s statement that he

was “unable to drive for six months past the last seizure”, which occurred on

December 24, 2016, and estimated the end of his period of incapacity to be June

24, 2017.9 There is nothing indefinite about that date. Brown’s driving restriction

was apparently lifted that June, (see Brown Dep. 128:21-22), such that he could

have performed the essential functions of his job as a Truck Driver at the point at

which he would have returned from leave had it been granted. That Brown may

have had flare-ups after June that would have necessitated a subsequent driving

restriction is not relevant to the question of whether he could have driven a truck if

given unpaid leave through June 2017.

In sum, as required, Brown has “present[ed] evidence from which a jury may

infer that the [proposed] accommodation is ‘reasonable on its face, i.e., ordinarily

or in the run of cases.’” Reyazuddin v. Montgomery Cty., Md., 789 F.3d 407, 414

(4th Cir. 2015) (quoting Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454,

9 See supra n.4.

464 (4th Cir. 2012)) (second alteration in original); see also id. (describing a

reasonable accommodation as “feasible or plausible”).

2.

The focus now turns to Martin Marietta and any undue hardship these

possible reasonable accommodations would have imposed on the company. See id.

(“Courts have reconciled and kept distinct the ‘reasonable accommodation’ and

‘undue hardship’ requirements by holding that, at the summary judgment stage,

the employee need only show that an accommodation seems reasonable on its

face, and then the employer must show special (typically case-specific)

circumstances that demonstrate undue hardship.”) (international quotations

omitted). If a reasonable accommodation “would impose an undue hardship on the

operation of the business” of the employer, then the employer is not required to

provide that accommodation. 42 U.S.C. § 12112(b)(5)(A). An undue hardship

exists when an action requires

significant difficulty or expense when considered in light of . . . (i) the

nature and cost of the accommodation . . . ; (ii) the overall financial

resources of the facility or facilities involved in the provision of the

reasonable accommodation; the number of persons employed at such

facility; the effect on expenses and resources, or the impact otherwise

of such accommodation upon the operation of the facility; (iii) the

overall financial resources of the covered entity; the overall size of the

business of a covered entity with respect to the number of its

employees; the number, type, and location of its facilities; and (iv) the

type of operations of the covered entity, including the composition,

structure, and functions of the workforce of such entity; the

geographic separateness, administrative, or fiscal relationship of the

facility or facilities in question to the covered entity.

42 U.S.C. § 12111(10)(A), (B); see also 29 C.F.R. § 1630.2(p)(2)(v) (describing

the “impact of the accommodation upon the operation of the facility” as “including

the impact on the ability of other employees to perform their duties and the impact

on the facility’s ability to conduct business”).

According to Brown’s affidavit, Martin Marietta has “over 8,500 employees

in 27 states, Canada, and the Bahamas.” (E. Brown Aff. ¶ 4.) It “operate[s] 282

aggregates quarries, mines and yards, and over 150 other facilities, such as

concrete plants, with annual revenues of nearly $4 billion.” (Id.) Brown estimated

that there were thirty facilities in the Raleigh-Charlotte region. On the other hand,

the company only “employs on average a dozen or more individuals (depending on

the quarry size) to conduct the operations of the quarry.” (Kerns Aff. ¶ 5.) The

Woodleaf facility had sixteen employees. (Id.) Both Kerns and Hellard averred that

the company had to “assign[] driving duties to supervisory personnel, assign[]

other truck drivers to the facility, and/or requir[e] existing truck drivers to perform

additional driving duties” during Brown’s absence, “often” resulting “in additional

expenditures on overtime compensation” and additional “significant stress to

individual employees and the operation of the facility.” Hellard did not consider

this to be “a sustainable way to account for an employee’s absence.” (Hellard Aff.

¶ 8.) This evidence shows a genuine dispute of material fact as to whether any of

Brown’s accommodations that may be reasonable cause Martin Marietta undue

hardship in light of the operations of Martin Marietta, the nature and cost of the

accommodation, the financial resources of the Woodleaf facility and the company

as a whole, the number of employees at each facility, and the number and location

of the company’s other facilities, among other factors.

3.

There is also a genuine dispute about whether Martin Marietta met its

obligation to participate in the interactive process to identify a reasonable

accommodation. “The ADA imposes upon employers a good-faith duty ‘to engage

[with their employees] in an interactive process to identify a reasonable

accommodation.” Jacobs, 780 F.3d at 581 (quoting Wilson, 717 F.3d at 346)

(alteration in original). “This duty is triggered when an employee communicates

[his] disability and desire for an accommodation – even if the employee fails to

identify a specific, reasonable accommodation.” Id. (citing Wilson, 717 F.3d at

346). Of course, if there is no “reasonable accommodation that would allow [the

employee] to perform the essential functions of the position”, then “an employer

will not be liable for failure to engage in the interactive process”. Id. (citing Wilson,

717 F.3d at 347).

[C]ourts should look for signs of failure to participate in good faith or

failure by one of the parties to make reasonable efforts to help the

other party determine what specific accommodations are necessary.

A party that obstructs or delays the interactive process is not acting

in good faith. A party that fails to communicate, by way of initiation

or response, may also be acting in bad faith. In essence, courts

should attempt to isolate the cause of the breakdown and then assign

responsibility.

Crabill v. Charlotte Mecklenburg Bd. of Educ., 423 F. App’x 314, 323 (4th Cir.

Apr. 20, 2011) (quoting Beck v. Univ. of Wisconsin Bd. of Regents, 75 F.3d 1130,

1135-36 (7th Cir. 1996)).

Beginning as early as January 3, Martin Marietta was made aware of

Brown’s desire to return to work with reasonable accommodation when his mother

asked what reasonable accommodations were being discussed and with whom she

and Brown should talk about reasonable accommodations because he would love

to return to work. As directed, Brown and his mother spoke with Grissett who

repeatedly told Brown “that wasn’t a job title” when Brown suggested various jobs

he could perform and, other times, Grissett gave Brown “no straight answer”,

“kind of left it hanging”, or told him no. Despite a follow-up email from Brown’s

mother to Kerns in mid-February about accommodations and long-term disability

benefits, they received no response. It was not until mid-March that anyone

responded, and it was by way of a letter from Grissett informing Brown that his

FMLA leave was expiring, warning him that he would be terminated if he could not

return to work on March 22, and inviting questions or concerns. When Brown

inquired again about long-term disability, Grissett said the company was not going

to consider that. Brown’s mother emailed Kerns and Grissett on March 14, noted

that the Browns had received no response to their questions from February, and,

each time the company had responded to inquiries, the response was that there

were no accommodations available. On March 22, 2017, Brown was terminated.

There is no dispute that Brown made Martin Marietta aware of his disability

and his desire to return to work, and this triggered the company’s duty to engage

in good faith with Brown to identify a reasonable accommodation. Brown even

proposed possible accommodations, albeit not all reasonable ones. Yet, as

explained above, a reasonable jury could find that there were reasonable

accommodations available. Therefore, although Kerns and Grissett did

communicate with Brown and his mother during his absence, a jury could find from

the substance of the communications and, at times, the absence of communication

that Martin Marietta breached its duty of good faith to engage with Brown in an

interactive process to identify a reasonable accommodation.

In sum, genuine disputes of material facts as to Brown’s claim that Martin

Marietta violated the ADA by failing to provide him reasonable accommodation

preclude summary judgment on Count II.

B.

A claim that an employer violated the ADA by terminating an employee

requires the employee to prove “(1) that [he] has a disability, (2) that [he] is ‘a

qualified individual’ for the employment in question, and (3) that [his employer]

discharged [him] (or took other adverse employment action) because of [his]

disability.” Jacobs, 780 F.3d at 572.10 Martin Marietta maintains that, at the time

10 Martin Marietta proposes using the burden-shifting scheme from McDonnell

Douglas applied “in a typical discharge case brought under the ADA”. (Br. in Supp.

at 9 (quoting Ennis v. Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58 (4th

Cir. 1995)). Ennis involved an employee allegedly terminated for numerous job

of his termination, Brown was not a qualified individual because there was no

reasonable accommodation that would allow him to perform the essential functions

of his job as a Truck Driver. (See Br. in Supp. at 16.)

In its Reply Brief, Martin Marietta contends that Brown has waived his

disparate treatment claim because he failed to respond to the company’s summary

judgment arguments. However, although Brown expounds more fully on his

reasonable accommodation claim, he does rely on some of the same arguments

and facts to support his termination claim by focusing on whether Brown was a

qualified individual. (See Pl.’s Opp’n at 10 (providing law on discharge claims under

the ADA and the requirement that the individual be a qualified individual), 13

(referring to “both the ADA discrimination and failure-to-accommodate claims” in

the context of the interactive process).)

There is no dispute that Brown had a disability. And, there is no dispute

that Martin Marietta terminated him on March 22, 2017 at the expiration of his

FMLA leave because he could not drive a truck as proscribed by his physician.11

performance issues, but who claimed she was discharged because of her disability,

facts distinguishable from this atypical case where there is direct evidence that

Brown was discharged because of his disability.

11 At his deposition, Brown testified that Martin Marietta afforded five employees

three to six months of leave for injuries or surgeries and allowed them to return to

work, while it denied Brown the same leave and terminated him instead. (Brown

Dep. 100:14-105:5.) However, as Kerns averred, these individuals, like Brown,

were eligible for paid leave under the company’s Sickness and Accident Benefit

Plan based on their years of continuous service. (Kerns Aff. ¶ 24.) Two employees

with thirty-nine years and sixteen years of service were eligible for twenty-six

weeks of paid leave but used eight and seven, respectively. (Id. ¶ 25.) One

employee with seventeen years of service took all twenty-six weeks of paid leave,

Thus, the issue is whether Brown was a qualified individual at the time of his

termination. Because there are genuine disputes of material fact as to whether

there were reasonable accommodations available such that Brown would have

been a qualified individual at the time of his termination, summary judgment on

Count I is precluded.

IV.

Martin Marietta also moved for summary judgment on Brown’s claim of

retaliation in violation of the FMLA. A plaintiff claiming FMLA retaliation “must

first make a prima facie showing that he engaged in protected activity, that the

employer took adverse action against him, and that the adverse action was

causally connected to the plaintiff’s protected activity.” Yashenko v. Harrah’s NC

Casino Co., LLC, 446 F.3d 541, 551 (4th Cir. 2006). The employer must then

offer a non-discriminatory explanation for the termination, after which the plaintiff

must show that the explanation is pretextual. Id. Martin Marietta argues that

Brown cannot show the causal connection between his FMLA leave and his

termination and, even if he could, he cannot rebut the company’s legitimate, non-

retaliatory reason for terminating him – because he could not return to work at the

expiration of his FMLA leave, he was terminated per company policy. (Br. in Supp.

but chose not to return to work. (Id.) Two employees suffered work-related

injuries, and, thus, did not fall under the company’s Sickness and Accident Benefit

Plan. (Id.) One of them was out of work for five weeks, and the other missed no

work. (Id.) Although this evidence does not show disparate treatment, there is

direct evidence that Brown was terminated because of his disability. The issue is,

thus, whether he was a qualified employee at the time.

at 21-22.) According to Martin Marietta, “whether or not [it] accurately concluded

that there was no accommodation available to Brown . . . , there is no evidence

whatsoever that [it] terminated Brown’s employment because he exercised his

rights under the FMLA.” (Id. at 21-22.)

As Martin Marietta argues in its Reply Brief, Brown has neglected to respond

at all in opposition to the company’s motion for summary judgment on this claim.

(See generally Pl.’s Opp’n.) However, “summary judgment cannot be granted by

default . . . .” Fed. R. Civ. P. 56(e) advisory committee’s note to 2010

amendment. “Although the failure of a party to respond to a summary judgment

motion may leave uncontroverted those facts established by the motion, the

moving party must still show that the uncontroverted facts entitle the party to ‘a

judgment as a matter of law.’” Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 416

(4th Cir. 1993) (quoting then-Fed. R. Civ. P. 56(c)). The court “must review the

motion, even if unopposed, and determine from what it has before it whether the

moving party is entitled to summary judgment as a matter of law.” Id.

Assuming Brown could make a prima facie case of retaliation in violation of

the FMLA, Martin Marietta has proffered a legitimate, non-retaliatory reason for

Brown’s termination. Its company policy is to terminate employees who cannot

return to work at the expiration of their FMLA leave, and it did not deviate from

that policy. There is no record evidence to show that this proffered explanation is

pretextual. Accordingly, summary judgment on Count III is appropriate.

V.

As Martin Marietta notes, to the extent that Brown’s state claim of wrongful

discharge is asserted pursuant to the North Carolina Persons with Disabilities

Protection Act, N.C. Gen. Stat. § 168A-1 et seq., this portion of Count IV fails as

a matter of law because it arises from the same facts and circumstances as his

ADA claims. See N.C. Gen. Stat. § 168A-11(c) (“No court shall have jurisdiction

over an action filed under this Chapter where the plaintiff has commenced federal

judicial . . . proceedings under . . . the Americans with Disabilities Act . . .

involving or arising out of the facts and circumstances involved in the alleged

discriminatory practice under this Chapter.”); Cone ex rel. Cone v. Randolph Cty.

Sch., 302 F. Supp. 2d 500, 514 (M.D.N.C. 2004) (applying N.C. Gen. Stat. §

168A-11(c) to dismiss the North Carolina Persons with Disabilities Protection Act

claim as a matter of law).

However, to the extent that Brown’s wrongful discharge claim is based on a

violation of North Carolina’s Equal Employment Practices Act, N.C. Gen. Stat.

§ 143-422.2, the claim will rise or fall with Brown’s ADA claims and, therefore,

summary judgment on this portion of Count IV is not appropriate.

VI.

For the reasons explained in this Memorandum Opinion, IT IS HEREBY

ORDERED that Defendant Martin Marietta Materials, Inc.’s Motion for Summary

Judgment [Doc. #26] be granted in part and denied in part. It is granted in part as

to Count III (retaliation in violation of FMLA) and the portion of Count IV alleging a

violation of the North Carolina Persons with Disabilities Protection Act. It is denied

in part as to Count I (termination in violation of ADA), Count II (failure to

accommodate in violation of the ADA), and the portion of Count IV alleging a

violation of North Carolina’s Equal Employment Protection Act.

This the 24th day of February, 2020.

/s/ N. Carlton Tilley, Jr.

Senior United States District Judge