SELLERS v. WAKE FOREST UNIVERSITY BAPTIST MEDICAL CENTER

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

BILLIE S. SELLERS, )

)

Plaintiff, )

)

v. ) 1:21cv52

)

WAKE FOREST UNIVERSITY BAPTIST )

MEDICAL CENTER, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, Chief United States District Judge.

This lawsuit arises from Plaintiff Billie Sellers’s alleged

wrongful discharge and emotional distress as a result of the

circumstances of her employment with Defendant Wake Forest

University Baptist Medical Center (“WFUBMC”). Before the court is

WFUBMC’s motion to dismiss and, in the alternative, motion for

summary judgment. (Doc. 18.) Sellers has filed a response in

opposition (Doc. 22), to which WFUBMC filed a reply (Doc. 23).

For the reasons set forth below, WFUBMC’s motion to dismiss and

motion for summary judgment will be granted.

I. BACKGROUND

The facts, either not in dispute or viewed in the light most

favorable to Sellers as the non-moving party, establish the

following:

Sellers is a nurse practitioner who was employed by WFUBMC

from October 2018 to July 2020. (Doc. 2 at 1.) She has a history

of both Attention Deficit and Hyperactivity Disorder (ADHD) and

Generalized Anxiety Disorder (GAD). (Doc. 19 at 3.) Sellers was

pregnant when she first started at WFUBMC and advised her manager,

Dierdra Robinson, that she could not take her ADHD medication while

pregnant. (Doc. 20-1 at 113:1-6.) The non-physician staff were

all provided carrels in the practice; physicians were provided

offices. (Doc. 20-7 at ¶ 6.) However, Sellers also told Robinson,

“I would really benefit from a closed area to get, you know, this

new work done and so I can succeed in this new career.” (Id. at

113:6-9.) After this conversation, WFUBMC also provided Sellers

access to a doctor’s closed office which Sellers says she used for

“a few days a week.” (Id. at 113:10-12.)

Robinson and Sellers continued to have conversations

regarding Sellers’s need for a quiet workspace. At some point,

Robinson advised that it might be possible to convert one of

Sellers’s examination rooms into an office for her. (Doc. 20-1 at

114:3-16.) After Sellers was able to use the doctor’s closed

office, Sellers’s carrell was moved away from Robinson’s door to

a different space where there was “a little more privacy and kind

of wall bend for noise block” in an accommodation. (Id. at 116:13-

25.) Sellers was told by another nurse practitioner “that doctors

get offices and all the midlevels get the work stations.” (Id. at

120:5-6.)

In March 2019, Paige Rideout became Sellers’s new manager.

(Doc. 20-6 at ¶ 2.) Rideout was initially open to the possibility

of converting an examination room into an office for Sellers,

however Sellers “didn’t want to do that, to take away from [her]

patient room because [she] only had three and [she] wanted to see

them an ample amount of time.” (Doc. 20-1 at 123:2-13.) Rideout

also offered her office to Sellers for her use whenever Rideout

was out of the office. (Id. at 123:13-17.) In total, Sellers

“frequently” used the office of Dr. Lori Smith, who worked part-

time, and also utilized Rideout’s office “once or twice.” (Doc.

20-7 at ¶ 6; Doc. 20-6 at ¶ 15(c); Doc. 20-1 at 123:18-23.) Sellers

began her maternity leave in mid-May 2019 and did not return until

mid-August 2019. (Doc. 20-6 at ¶ 3.)

At some point in early January 2020, Sellers reiterated her

request for a quiet workspace. (Doc. 2 at ¶ 30.) On January 23,

Sellers got in an argument with her certified medical assistant,

Niki Stukes. (Doc. 20-6 at ¶ 4.) Although the exact phrases used

are disputed, Sellers was upset at the pace with which Stukes

completed her job and proceeded to loudly voice her anger at

Rideout in front of other employees. (Id.) After this argument,

Rideout, Sellers, Stukes, and Dr. Lori Smith, Sellers’s physician

supervisor, met on January 31, 2020, to discuss ways to communicate

more constructively. (Id.)

Beginning in March 2020 until April 7, Sellers took continuous

leave pursuant to the Family and Medical Leave Act of 1993 (FMLA),

29 U.S.C. § 2601 et seq. (Doc. 2 at 2.) While Sellers was on

leave, a meeting was set for April 7 with her, Virginia Dodd

Pulaski, Associate Director of Operations at Wake Forest Baptist

Health, and Rideout. (Doc. 20-6 at ¶ 6.) On April 7, however,

Sellers did not appear for this meeting, and instead stayed in an

examination room with a patient for much longer than expected.

(Id.) The next day, April 8, Sellers returned to FMLA leave, which

ran until early May 2020. (Id.)

At no point in time did WFUBMC ever refuse Sellers’s request

for leave or refuse to grant her time to attend medical

appointments. During her continuous leave, Sellers was unable to

access her personnel files because WFUBMC had disabled her computer

accounts for that period. (Id.) When she returned to work in May

2020, Sellers changed her continuous FMLA leave to intermittent

leave and received four hours of leave per week. (Id.)

Additionally, starting in May, two vacant offices were available

when a medical group left the building, and they were made

available for Sellers’s use all the time. (Doc. 22-1 at 133:5-

21.) Sellers permanently moved her office supplies and received

an empty office in which she could remain because it was not

currently in use. (Id.)

Sometime in May 2020, Chad Harris, the clinical coordinator

to which all certified medical assistants including Stukes report,

reported that some assistants had complained to him about the way

they were treated by Sellers. (Doc. 20-4 at ¶ 8.) Chief among

those complaints was Sellers’s apparent temper. For instance,

Sellers had become angry when Stukes, her assistant, refused to

pick up a dirty paper towel that Sellers had thrown on the floor

stating that picking up trash was “beneath her.” (Id. at ¶ 9.)

One certified medical assistant reported that Sellers had called

Rideout a “fucking bitch” and the assistant was afraid of Sellers’s

irritation. (Id.) Sellers had also complained directly to Harris

that her assistant, Stukes, “used to be great, but now is lazy.”

(Id.) Based on this information, Pulaski and other administrators

met with Sellers and issued her a Verbal Advisory, the lowest level

of formal discipline, on May 26, 2020. (Id. at ¶ 11.)

Later that evening, Sellers sent a screenshot of her Verbal

Advisory to Harris. (Doc. 20-2 at ¶ 5.) Sellers made no comment,

but the text referenced the information Harris had provided Pulaski

and identified him by name. (Id.) Harris reported feeling

threatened and intimidated by the message. (Id. at ¶ 6.) Harris

made Pulaski aware of the situation, at which point Pulaski

informed him that she had escalated this incident to Employee

Relations. (Id. at 11.) Sellers was then placed on administrative

leave until June 2. (Doc. 20-6 at ¶ 11.) When she returned on

June 2, Sellers met with Rideout and others from Employee Relations

to discuss her behavior. (Id.) After this meeting, Sellers sent

a text to Harris apologizing for texting him the screenshot on the

evening of May 26. (Id. at ¶ 6.)

On June 12, Sellers emailed her supervisors and others,

tendering her resignation. (Doc. 20-1 at 90:9-16.) Sellers

offered to continue working for a period of four weeks and proposed

July 2 as her last workday. (Id.) While she proposed July 2 as

her last day, her notice period ran through July 12, which included

the week she was on rotating furlough. (Id.)

After submitting her resignation, Sellers requested an exit

interview with Dr. Elisabeth Stambaugh, Chief Medical Officer of

Wake Forest University Health Network, and a representative from

human resources. (Doc. 20-8 at 1.) This meeting took place on

June 24, 2020. (Doc. 20-8 at ¶ 5.) During this exit interview,

Sellers sought to rescind her resignation. (Doc. 20-1 at 421:19-

422:11.) Dr. Stambaugh decided to let Sellers’s resignation stand

but informed her that she was welcome to apply for other positions

within the WFUBMC system. (Doc. 20-8 at 2.)

Sellers filed this lawsuit in state court, and WFUBMC timely

removed it to this court. (Doc. 1.) Sellers presents four claims:

1) constructive discharged for taking FMLA leave; 2) “emotional

distress”; 3) failure to reasonably accommodate her ADHD and GAD

in violation of the Americans with Disabilities Act of 1990 (ADA),

42 U.S.C. § 12101 et seq.; and 4) failure to pay bonuses. (Doc.

2.) WFUBMC filed an answer generally denying Sellers’s allegations

(Doc. 5) and now moves to dismiss the complaint pursuant to Rule

12(b)(6), and alternatively for summary judgment pursuant to Rule

56 of the Federal Rules of Civil Procedure. (Doc. 18.)

II. ANALYSIS

A. Jurisdiction and Standard of Review

This court has jurisdiction over Sellers’s ADA claim because

it arises under federal law. 28 U.S.C. § 1331. The court exercises

supplemental jurisdiction over Sellers’s state law claims for

constructive discharge and intentional or negligent emotional

distress because they stem from the same factual nexus as her

federal claim: her working conditions and alleged attempts by

WFUBMC to deny her an adequate working environment free from

harassment. Id. § 1367(a) (granting “supplemental jurisdiction

over all other claims that are [sufficiently] related to claims in

the action within such original jurisdiction”); B.R. v. F.C.S.B.,

17 F.4th 485, 492 (4th Cir. 2021). As to the state claims, the

court applies state substantive law and federal procedural law.

See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 72-73 (1938); United

Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (holding

that federal courts are “bound to apply state law” to pendant

claims). In doing so, the court looks to the jurisprudence of

North Carolina’s highest court, the supreme court. See Priv.

Mortg. Inv. Servs., Inc. v. Hotel & Club Assocs., Inc., 296 F.3d

308, 312 (4th Cir. 2002); State ex rel. Martin v. Preston, 385

S.E.2d 473, 478 (N.C. 1989) (noting that “issues concerning the

proper construction and application of North Carolina laws and the

Constitution of North Carolina can only be answered with finality

by” the North Carolina Supreme Court). When that court has not

spoken directly on an issue, this court must “predict how that

court would rule if presented with the issue.” Id. The decisions

of the North Carolina Court of Appeals are the “next best indicia”

of what North Carolina’s law is, though its decisions “may be

disregarded if the federal court is convinced by other persuasive

data that the highest court of the state would decide otherwise.”

Id. (quoting Liberty Mut. Ins. Co. v. Triangle Indus., Inc., 957

F.2d 1153, 1156 (4th Cir. 1992)). In predicting how the highest

court of a state would address an issue, this court “should not

create or expand a [s]tate’s public policy.” Time Warner Ent.-

Advance/Newhouse P'ship v. Carteret-Craven Elec. Membership Corp.,

506 F.3d 304, 314 (4th Cir. 2007) (alteration and quotation

omitted).

Under Federal Rule of Civil Procedure 12(b)(6), “a complaint

must contain sufficient factual matter . . . to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)). A claim is plausible “when the plaintiff pleads

factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.”

Id. In considering a Rule 12(b)(6) motion, a court “must accept

as true all of the factual allegations contained in the complaint,”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), and all

reasonable inferences must be drawn in the plaintiff’s favor,

Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). “Rule

12(b)(6) protects against meritless litigation by requiring

sufficient factual allegations ‘to raise a right to relief above

the speculative level’ so as to ‘nudge[] the[] claims across the

line from conceivable to plausible.’” Sauers v. Winston-

Salem/Forsyth Cty. Bd. of Educ., 179 F. Supp. 3d 544, 550 (M.D.N.C.

2016) (quoting Twombly, 550 U.S. at 555). Mere legal conclusions

are not accepted as true, and “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Iqbal, 556 U.S. at 678.

A court must grant a motion for summary judgment if the

pleadings, depositions, and affidavits submitted show that there

is no genuine dispute as to any material fact and the moving party

is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

A fact is considered “material” if it “might affect the outcome of

the suit under the governing law.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). Under this standard, a genuine

dispute of material fact exists “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.”

Id. As a result, the court will only enter summary judgment in

favor of the moving party when the record “shows a right to

judgment with such clarity as to leave no room for controversy”

and clearly demonstrates that the non-moving party “cannot prevail

under any circumstances.” Campbell v. Hewitt, Coleman & Assocs.,

Inc., 21 F.3d 52, 55 (4th Cir. 1994) (internal quotation marks

omitted). “Credibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the facts

are [fact-finder] functions . . . .” Anderson, 477 U.S. at 255.

On summary judgment, “[t]he evidence of the non-movant is to be

believed, and all justifiable inferences are to be drawn in his

favor.” Id.

While the movant bears the initial burden of demonstrating

the absence of any genuine dispute of material fact, once that

burden has been met, the non-moving party must demonstrate that a

genuine dispute of material fact actually exists. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986);

Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 521

(4th Cir. 2003). A mere scintilla of evidence is insufficient.

Anderson, 477 U.S. at 252. Instead, the nonmoving party must

convince the court that, upon the record taken as a whole, a

rational trier of fact could find for the nonmoving party. Id. at

248–49. Trial is unnecessary if “the facts are undisputed, or if

disputed, the dispute is of no consequence to the dispositive

question.” Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1315–16

(4th Cir. 1993).

B. Wrongful Discharge

Sellers’s first claim alleges that WFUBMC, through its

employees, “placed undo [sic] stress upon Plaintiff in an effort

to force her to quit.” (Doc. 2 at 2.) This undue stress includes

changing her patient schedule without notice, increasing her

patient loads, “encouraging insubordination by her medical

assistant,” and minimizing her concerns. (Id.) WFUBMC moves to

dismiss this claim for failing to state a claim upon which relief

can be granted, arguing that North Carolina courts do not recognize

constructive discharge as a basis for a wrongful discharge claim.

(Doc. 19 at 2.) In the alternative, it moves for summary judgment

on the grounds Sellers voluntarily resigned her position and was

not retaliated against for taking FMLA leave. (Id.)

Sellers characterizes her claim as one for “wrongful

discharge” because she was “constructively terminated by Defendant

in violation of the FMLA.” (Doc. 2 at 1-2.) Based on the complaint

alone, Sellers alleges the common law tort of wrongful discharge

in violation of public policy — here the FMLA. In her briefing,

however, she argues that her claims “are not for an independent,

common law tort claim of constructive discharge but rather identify

constructive discharge as one of the adverse employment actions

taken against Plaintiff by the Defendant under the disability

discrimination and FMLA retaliation claims.” (Doc. 22 at 11.)

Despite the reference to the FMLA in her complaint, Sellers’s brief

captions her constructive discharge claim as predicated on the

ADA, and she included no such FMLA retaliation claim in her

complaint. (Doc. 22 at 10.)1 Rather, she has four claims: one

for “wrongful discharge”; the second for “emotional distress”; the

third for the “American [sic] with Disability [sic] Act”; and

fourth for “bonus monies.” (Id.) A motion to dismiss evaluates

the sufficiency of the complaint only, Iqbal, 556 U.S. at 678,

which plainly characterizes her claim as one for wrongful

discharge. Her first claim seeks damages suffered from her alleged

wrongful discharge, not from WFUBMC’s alleged violation of the

FMLA.

Accepting all the facts pleaded by Sellers as true, she has

failed to state a claim upon which relief can be granted. North

Carolina courts do not recognize a cause of action for wrongful

constructive discharge. See Whitt v. Harris Teeter, Inc., 614

S.E.2d 531 (N.C. 2005) (per curiam) (adopting dissenting opinion

at 598 S.E.2d 151, 159 (N.C. Ct. App. 2004) (McCollough, J.,

dissenting)). Federal district courts applying Whitt have

construed its holding to preclude a claim of wrongful constructive

discharge altogether. See, e.g., Perry v. Diversified Wood Prods.,

1 In addition to failing to allege a claim for retaliation under the FMLA

in the complaint, Sellers failed to provide any evidence that she

exhausted such a claim. See Sydnor v. Fairfax Cnty. Va., 681 F.3d 591,

593 (4th Cir. 2012) (noting that “a plaintiff must exhaust his

administrative remedies by filing a charge with the EEOC before pursuing

a suit in federal court”).

Inc., 2018 WL 3945933 at *7 (E.D.N.C. Aug. 16, 2018) (collecting

cases). This is because North Carolina is an “at-will” employment

state, meaning that employees can be fired at any time and for any

non-discriminatory reason, or even no reason. Still v. Lance, 182

S.E.2d 403 (N.C. 1971). The state recognizes an exception to the

rule where the termination violates the express public policy of

North Carolina. Coman v. Thomas Mfg. Co., Inc., 381 S.E.2d 445,

447 (N.C. 1989); Amos v. Oakdale Knitting Co., 416 S.E.2d 166,

169-70 (N.C. 1992) (recognizing a wrongful discharge claim where

an employee was terminated for refusing to work for less than the

state minimum wage). These protected or prohibited activities are

“confined to the express statements contained within [North

Carolina’s] General Statutes or [the State] Constitution.”

Whitings v. Wolfson Casing Corp., 618 S.E.2d 750, 753 (N.C. Ct.

App. 2005).

The FMLA, as a federal law, does not meet this exception to

create the requisite state policy for a claim of wrongful discharge

under North Carolina law. See Baucom v. Cabarrus Eye Ctr, P.A.,

No. 1:06CV209, 2007 WL 1074663 at *7 (M.D.N.C. Apr. 4, 2007)

(dismissing a wrongful discharge claim based on violations of the

FMLA pursuant to Rule 12(b)(6)); Gomoll v. Landura Mgmt. Co., Inc.,

No. 1:04CV857, 2005 WL 1230788 at *2 (M.D.N.C. Apr. 28, 2005)

(same); Brewer v. Jefferson Pilot Standard Life Ins. Co., 333 F.

Supp. 2d 433, 439 (M.D.N.C. 2004) (same); Buser v. S. Food Serv.,

Inc., 73 F. Supp. 2d 556, 565 (M.D.N.C. 1999) (declining to hold

that violation of the FMLA rises to the level of a state public

policy). For this reason, Sellers has failed to state a claim

upon which relief can be granted to the extent that she relied on

any violation of the FMLA to establish the basis for a “wrongful

discharge” claim.

Sellers does not provide any legal argument in support of a

claim of wrongful discharge under the FMLA. Rather, in her

response to WFUBMC’s motion to dismiss, she recites the standard

for a plaintiff to prevail on a constructive discharge claim under

Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. (Doc.

22 at 11-12.) Title VII appears nowhere in her complaint.

Somewhat confusingly, Sellers argues that many “federal courts

have allowed constructive discharge claims associated with

violation of federal statutes.” (Id. at 10-11.) Because some

courts have found that constructive discharge claims can be

supported by claims under Title VII, Sellers argues, her claims

“identify constructive discharge as one of the adverse employment

actions taken against Plaintiff by the Defendant under the

disability discrimination and FMLA retaliation claims.” (Id. at

11.) Even were her claim to be so construed, it fails.2

2 Whether Sellers’s claim is for constructive discharge for violation of

the ADA, for an FMLA retaliation claim which does not appear in her

complaint, or for a violation of Title VII, the standard is the same.

See Sowers v. Bassett Furniture Indus., Inc., No. 4:19CV39, 2021 WL

An employee is entitled to relief absent a formal discharge

“if an employer deliberately makes the working conditions

intolerable in an effort to induce the employee to quit.” Martin

v. Cavalier Hotel Corp., 48 F.3d 1343, 1353-54 (4th Cir. 1995)

(internal quotations omitted). To prevail on a claim for

constructive discharge, a plaintiff must prove two elements: 1)

the deliberateness of the employer’s actions, motivated by an

improper reason such as racial bias or age discrimination, and 2)

the objective intolerability of the working conditions. Freeman

v. Dal-Tile Corp, 750 F.3d 413, 425 (4th Cir. 2014) (quoting Honor

v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 187 (4th Cir. 2004)).

In evaluating whether working conditions are intolerable, courts

use an “objective standard of whether a ‘reasonable person’ in the

employee’s position would have felt compelled to resign.” Bristow

v. The Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985).

The law “does not permit an employee’s subjective perceptions to

276169, at *7 (W.D. Va. Jan. 27, 2021) (plaintiff alleging claim for

constructive discharge as a result of ADA discrimination must have

experienced “objectively intolerable working conditions . . . [by]

‘show[ing]: (1) that the employer’s actions were deliberate, and (2)

that working conditions were intolerable.’” (quoting Lacasse v. Didlake,

Inc., 712 F. App’x 231, 239 (4th Cir. 2018); McCormack v. Blue Ridge

Behav. Healthcare, 523 F. Supp. 3d 841, 851-52 (W.D. Va. 2021) (a

plaintiff seeking relief for constructive discharge under the FMLA must

show “her working conditions were so intolerable that a reasonable person

in her position ‘would have had no choice but to resign’” (quoting

Perkins v. Int’l Paper Co., 936 F.3d 196, 211 (4th Cir. 2019)); Munday

v. Waste Mgmt. of N. Am., Inc., 126 F.3d 239, 244 (4th Cir. 1997) (noting

that, to succeed on a claim for constructive discharge, a Title VII

plaintiff must show “deliberateness of the employer’s action, and

intolerability of the working conditions”).

govern a claim of constructive discharge.” Id. “An employee is

protected from a calculated effort to pressure him into resignation

through the imposition of unreasonably harsh conditions, in excess

of those faced by his coworkers. He is not, however, guaranteed

a working environment free of stress.” Goldsmith v. Mayor and

City Council of Baltimore, 987 F.2d 1064, 1072 (4th Cir. 1993).

Sellers contends she has experienced more than “general

dissatisfaction with her work environment” because “her health and

safety were jeopardized by the Defendant’s conduct.” (Doc. 22 at

12.) Specifically, she contends that her manager, Paige Rideout,

“placed undo stress upon [her] in an effort to force her to quit.

The stress included changing [her] patient schedule without

consulting or informing her, increasing her patient loads to an

unmanageable level, encouraging insubordination by her medical

assistant, Nikki Stukes, and minimizing her concerns.” (Doc. 2 at

2.) She further alleges that when she submitted an amendment to

her FMLA application, Rideout “slammed her hand on the desk and

told [her] to leave.” (Id.) As a result of these alleged

instances, Sellers claims, she submitted her resignation. (Id.)

Having a change of heart, she then attempted to rescind her

resignation after an exit interview with Dr. Elisabeth Stambaugh,

Chief Medical Officer of Wake Forest University Health Network.

(Id.) Dr. Stambaugh refused to rescind the resignation, and

Sellers claims she was thus “constructively terminated.”3 (Id.)

The record fails to create a genuine dispute of material fact

as to the intolerability of her working conditions. Taking each

of her complaints in turn, the one instance in the record in which

Sellers’s patient schedule was modified without her knowledge

resulted from Sellers informing Rideout that something had

happened at work on June 5, 2020, that made her feel threatened

and unsafe. (Doc. 20-6 at 7.) Rideout’s affidavit states, and

Sellers does not dispute, that Rideout “requested that [Sellers’s]

patient visits for the following Monday afternoon and Tuesday be

cancelled or rescheduled.” (Id. at 8.) Rideout was under the

impression that Sellers would not be coming to work the week after

the undisclosed incident in which Sellers felt threatened and

unsafe at work. (Id.) Sellers, however, did show up for work the

following week and was dismayed to learn that her patients had

been rescheduled. (Id.) Sellers’s medical assistant was able to

schedule several of her patients back into the office on Monday

and Tuesday of that week. (Id.) The rescheduling of patients in

3 An employer’s refusal to allow an employee to rescind her voluntary

resignation does not constitute a constructive discharge. See Rush v.

Verizon Virginia, Inc., No. 7:04CV93, 2004 WL 2900654, at *3 (W.D. Va.

Dec. 9, 2004) (no duty under the ADA to allow an employee who has resigned

to rescind resignation); see also Jones v. Butler Metro. Hous. Auth.,

40 F. App’x 131, 137 (6th Cir. 2002) (no duty for employer to accept

employee’s attempt to rescind resignation, and no “adverse employment

action” for purposes of retaliation claim under federal law); accord

Wilkerson v. Springfield Pub. Sch. Dist. No. 186, 40 F. App’x 260, 263

(7th Cir. 2002); Schofield v. Metro. Life Ins. Co., No. 3:CV-03-0357,

2006 WL 2660704, at *9 (M.D. Pa. Sept. 15, 2006).

response to an employee’s stated unspecified fears is not an

intolerable working condition.

Sellers next complains that her patient load was increased to

an unmanageable level. While an increased patient load can be a

difficult working condition, “difficult or unpleasant working

conditions, without more, are not so intolerable as to compel a

reasonable person to resign.” Evans v. Int’l Paper Co., 936 F.3d

183, 193 (4th Cir. 2019). Sellers makes no claim and provides no

evidence that her workload was increased disproportionate to that

of other similarly situated employees. Nor has she presented any

evidence as to the quantity of her patient load, when this increase

took place, or the duration of the increase. As such, this ground

fails. Goldsmith v. Mayor and City Council of Baltimore, 987 F.2d

1064, 1072 (4th Cir. 1993) (affirming dismissal of state claim for

constructive discharge where employee failed to provide evidence

that working conditions were unreasonably harsh in excess of that

faced by her coworkers and “so intolerable that a reasonable person

of reasonable sensibilities would be compelled to quit”).

Sellers alleges that Rideout encouraged her medical

assistant, Nikki Stukes, to be insubordinate. (Doc. 2 at 2.) This

allegation stems from an incident between Sellers, Rideout, and

Stukes on January 23, 2020. While there is some dispute as to the

tone and specifics of the conversation, the material portions of

the occurrence are undisputed, and the remaining facts are viewed

in the most favorable light to Sellers.

Apparently unhappy with the quality of Stukes’s work, Sellers

approached Rideout and said something to the effect that if she

was expected to see a certain number of patients per day, she would

need a medical assistant who was more readily available. (Doc.

20-1 at 339:4-9.) Sellers voiced this complaint while Rideout was

in her “pod,” an area open to both other medical staff and

patients. (Id.; Doc. 20-6 at 2.) Sellers admits that when she

made the statement, “it came across wrong,” and both Rideout and

Stukes were offended and perceived Sellers’s comments as

disrespectful. (Id. at 339:10-340:21.) Rideout “slammed the pod

counter there and said ‘just shut up. Just shut up. Don’t say

another word. You are not allowed to speak out here.’”4 (Doc.

20-1 at 339:17-20.)

The undisputed evidence is that Stukes had been on the

telephone with a patient when Sellers requested that she assist

her with another patient currently in the office. (Doc. 20-6 at

2.) When Stukes told Sellers to wait until she finished her

telephone call, Sellers left to complain to Rideout, and the above

argument ensued. (Id.) The argument seemingly concluded with

Rideout supporting Stukes, and a meeting was scheduled between

4 Sellers characterizes this as “violent to me and degrading, demeaning,

and very hurtful.” (Doc. 20-1 at 339:17-20.) This also serves as a

partial basis for her claim for emotional distress and is discussed in

more detail below.

Sellers, Stukes, Rideout, and Dr. Lori Smith, Sellers’s physician

supervisor, to discuss how to communicate in a more constructive

fashion. (Id. at 3.) At the conclusion of that meeting, Sellers

apologized to Stukes. (Id.) The allegation that Rideout

“encouraged insubordination” thus relates to Rideout supporting

Stukes’s side of the incident rather than Sellers’s.

Friction between coworkers and management is not uncommon in

the workplace, and only in the most extreme cases does it make an

employee’s work situation intolerable. For instance, in Williams

v. Giant Food, Inc., the Fourth Circuit affirmed dismissal of

plaintiff’s constructive discharge claims, holding that being

yelled at and told you are a poor manager and chastised in front

of customers did not create conditions so intolerable as to compel

a reasonable person to resign. 370 F.3d 423, 434 (4th Cir. 2004).

In Carter v. Ball, the Fourth Circuit affirmed dismissal of the

plaintiff’s constructive discharge claims, holding that being

unfairly criticized, losing supervisory responsibilities, and

having one’s supervisor display a poster that may have been

offensive to African Americans was insufficient to establish a

constructive discharge claim. 33 F.3d 450, 459-60 (4th Cir. 1994).

And in Evans, the Fourth Circuit affirmed the grant of summary

judgment against the plaintiff on her constructive discharge claim

where Evans, an African American chemical engineer, alleged she

was mistreated in comparison to white, male employees and that

white, male co-workers made racially insensitive and offensive

comments that forced her to resign. 936 F.3d at 187, 194. These

comments included that white male employees said an African

American employee was “from a shoot em up, bang neighborhood,”

that Evans’ natural hairstyle was unprofessional, and that she was

nicknamed Angela Davis, after the civil rights and Black Panther

activist because Davis “stirred up a lot of trouble.” Id. at 189.

Despite this, the Fourth Circuit concluded that summary judgment

was warranted because “[t]he conditions, while no doubt

frustrating and unpleasant to Evans, cannot, from an objective

perspective, be construed to leave her no choice but to resign.”

Id. at 194. The court also noted that “[t]he record reflects many

positive aspects of Evans’ employment,” citing Evans’s resignation

letter stating that while there had been challenges, her tenure

was, “on the whole, satisfying and productive” and a “great

experience.” Id. at 194.

Here, even accepting all her claims and facts as true, Sellers

has not shown that her working conditions were so intolerable as

to require quitting. Her grievances are insufficient to cause a

reasonable person to conclude that she has no alternative but to

resign. Moreover, as in Evans, Sellers’s resignation email belies

her current characterization of her experience. In her email,

Sellers noted “there are unsettled matters within the workplace at

Internal Medicine at Westchester which remain,” and offered an

exit interview “to communicate concerns related to these matters

if senior leadership wishes.” (Doc. 20-1 at 109.) But she also

noted “I do appreciate the opportunity to work with Wake over the

past 2 years. I have gained an irreplaceable amount of experience

and I am appreciative for that. Thank you for allowing me the

chance to grow as a practitioner.” (Id.) Sellers continued,

stating “thank you for the opportunity to serve my patients and

for the chance to work beside some of the kindest, most

compassionate providers in this area.” (Id.) She concluded by

stating, “[w]orking with staff at Internal Medicine has also been

my pleasure and it was my honor to service their needs as well.”

(Id.) She even offered to work three weeks after giving her notice

and asked to rescind her resignation 10 days later. As in Evans,

Sellers’s offer to work a notice period, her positive comments in

her resignation letter, and her attempt to rescind her resignation

and continue working for WFUBMC make clear that she has not

presented sufficient evidence to meet her burden of establishing

that her working conditions were so intolerable that a reasonable

person would have felt compelled to resign.

Therefore, individually and collectively, Sellers’s grounds

for her claim for wrongful discharge fail, and WFUBMC’s motion for

summary judgment will be granted.5

5 To the extent Sellers attempts to base her constructive discharge claim

C. Emotional Distress

Sellers’s second claim seeks damages for “emotional

distress.” (Doc. 2 at 3.) She alleges that WFUBMC knew of her

“love and need for her position,” “harassed and reprimanded” her

while she was on FMLA leave, and “unjustifiably” disciplined her

when she returned to work. (Id.) She concludes that “the conduct

of Defendant, as herein set out, constitutes the tort of

intentional and/or negligent infliction of emotional distress” and

seeks punitive damages. (Id.)

WFUBMC moves to dismiss this claim and, in the alternative,

for summary judgment. It argues that to the extent Sellers’s cause

of action is for negligent infliction of emotional distress (NIED),

it should be dismissed because it alleges only intentional conduct

and is also barred by “the doctrine of workers’ compensation

exclusivity.” (Doc. 19 at 19.) To the extent it is a claim for

intentional infliction of emotional distress (IIED), WFUBMC seeks

summary judgment “because the undisputed facts fail to establish

the requisite ‘extreme and outrageous conduct required for a valid

claim.” (Id. at 20.)

To the extent Sellers’s claim is for NIED, WFUBMC is correct

that it fails to state a claim to survive dismissal pursuant to

Rule 12(b)(6). In order to state a claim for NIED, a plaintiff

on a failure to accommodate under the ADA, her claim would fail for the

reasons noted in the discussion of her ADA claim infra.

must allege that “(1) the defendant[] negligently engaged in

conduct; (2) it was reasonably foreseeable that such conduct would

cause the plaintiff severe emotional distress . . .; and (3) the

conduct did in fact cause the plaintiff severe emotional distress.”

Johnson v. Ruark Obstetrics & Gynecology Assocs., P.A., 395 S.E.2d

85 (N.C. 1990). “In order to establish actionable negligence, a

plaintiff must show that: (1) defendant failed to exercise due

care in the performance of some legal duty owed to plaintiff under

the circumstances; and (2) the negligent breach of such duty was

the proximate cause of the injury.” Guthrie v. Conroy, 567 S.E.2d

403, 410-11 (N.C. Ct. App. 2002).

Sellers has failed to allege any acts of negligence on the

part of WFUBMC. Her complaint contains a single conclusory

allegation that WFUBMC “by and through its duly authorized agents,

was negligent in the training and retention of Plaintiff’s

supervisory personnel when it knew or should have known that their

[sic] actions were causing injury to Plaintiff.” (Doc. 2 at 3.)

Sellers alleges no facts related to WFUBMC’s training of employees

or any specific facts or instances of WFUBMC’s alleged negligence

to render such a claim plausible. On the contrary, the complaint

alleges only intentional wrongful acts and simply concludes that

they were committed negligently, which “is insufficient to state

a claim for negligent infliction of emotional distress.” Barbier

v. Durham Cnty. Bd. of Educ., 225 F. Supp. 2d 617, 631 (M.D.N.C.

2002) (citing Mitchell v. Lydall, Inc., No. 93-1374, 1994 WL 38703,

at *3-4 (4th Cir. Feb. 10, 1994)); see also Thomas v. N. Telecom,

Inc., 157 F. Supp. 2d 627, 637 (M.D.N.C. 2000) (dismissing claim

for negligent infliction of emotional distress because plaintiff

had only alleged conduct which is “inherently intentional”);

Robles v. Transdev North America, Inc., No. 1:15CV285, 2015 WL

4924733 n.3 (M.D.N.C. Aug. 18, 2015) (noting “conclusory

allegations of negligence, supported by factual allegations of

nothing but intentional acts, cannot state a claim for negligent

conduct.”).

As to Sellers’s claim of IIED, WFUBMC is entitled to summary

judgment. Under North Carolina law, the essential elements of an

IIED claim are “(1) extreme and outrageous conduct, (2) which is

intended to cause and does cause (3) severe emotional distress to

another.” Dickens v. Puryear, 276 S.E.2d 325, 335 (N.C. 1981).

IIED may also “exist where defendant’s actions indicate a reckless

indifference to the likelihood that they will cause severe

emotional distress.” Id. “The determination whether conduct rises

to the level of extreme and outrageous behavior is a question of

law.” Foster v. Crandell, 638 S.E.2d 526, 537 (N.C. Ct. App.

2007). To be extreme and outrageous, conduct must “go beyond all

possible bounds of decency, and . . . be regarded as atrocious,

and utterly intolerable in a civilized community.” Smith-Price v.

Charter Behav. Health Sys., 595 S.E.2d 778, 782 (N.C. Ct. App.

2004) (internal quotation marks and citation omitted). North

Carolina courts have set a high threshold for this standard. See

Dobson v. Harris, 521 S.E.2d 710, 715 (N.C. Ct. App. 1999) (finding

an exaggerated report of child abuse to the Department of Social

Services not extreme and outrageous), rev’d on other grounds, 530

S.E.2d 829 (N.C. 2000); Hogan v. Forsyth Country Club Co., 340

S.E.2d 116, 121, 123 (N.C. Ct. App. 1986) (finding that requiring

pregnant employee to carry heavy loads and refusing to allow her

leave to go to the hospital not extreme and outrageous conduct).

North Carolina courts “rarely find conduct in the employment

context that will rise to the level of outrageousness necessary to

support a claim of intentional infliction of emotional distress.”

Smith v. Comput. Task Grp., Inc., 568 F. Supp. 2d 603, 621

(M.D.N.C. 2008) (internal quotes and citations omitted); see,

e.g., Thomas, 157 F. Supp. 2d at 635; Haburjak v. Prudential Bache

Sec., Inc., 759 F. Supp. 293, 302-03 (W.D.N.C. 1991) (listing state

court cases); Locklear v. Person Cnty. Bd. of Educ., No. 1:05CV255,

2006 WL 1743460, at **15-16 (M.D.N.C. June 22, 2006); Jackson v.

Blue Dolphin Commc’ns of N.C., L.L.C., 226 F. Supp. 2d 785, 794

(W.D.N.C. 2002). Liability “does not extend to mere insults,

indignities, [or] threats.” Hogan v. Forsyth Country Club Co.,

340 S.E.2d 116, 123 (N.C. Ct. App. 1986). “In cases where North

Carolina courts have found IIED claims actionable, the conduct has

been extremely egregious, and involved sexual advances, obscene

language, and inappropriate touching.” Bratcher v. Pharm. Prod.

Dev., Inc., 545 F. Supp. 2d 533, 545 (E.D.N.C. 2008) (collecting

cases).

Here, Sellers has failed to show conduct by WFUBMC that, if

believed, is sufficiently extreme and outrageous. See Dickens v.

Puryear, 276 S.E.2d 325, 335 (N.C. 1981). She claims that WFUBMC

“placed undo [sic] stress upon [her] in an effort to force her to

quit . . . include[ing] changing [her] patient schedule without

consulting or informing her, increasing her patient loads to an

unmanageable level, encouraging insubordination by her medical

assistant . . . and minimizing her concerns.” (Doc. 2 at 2.) She

also points to WFUBMC’s refusal to rescind her resignation. (Id.)

None of this, alone or together, rises to the level of “extreme

and outrageous” conduct that is “utterly intolerable in a civilized

community.” Smith-Price v. Charter Behav. Health Sys., 595 S.E.2d

778, 782 (N.C. Ct. App. 2004). Cf. Brown v. Burlington Industries,

Inc., 378 S.E.2d 232, 235 (N.C. Ct. App. 1989) (finding extreme

and outrageous conduct where the defendant asked the plaintiff

“‘how tight [she] was,’ referring to her vagina,” indicated that

he wanted plaintiff’s “long legs wrapped around his body,” grabbed

his penis, and implied that if plaintiff would have sex with him,

he would place her in another position, and held her paycheck while

puckering his lips), disc. review allowed, 384 S.E.2d 513 (N.C.

1989), review dismissed as improvidently granted, 388 S.E.2d 769

(N.C. 1990); McLain v. Taco Bell Corp., 527 S.E.2d 712, 715 (N.C.

Ct. App. 2000) (finding extreme and outrageous conduct where a

defendant “physically assaulted plaintiff, . . . [demanded] sexual

relations . . . [and] began masturbating, ultimately ejaculating

upon plaintiff’s clothing”), disc. review denied, 544 S.E.2d 563

(N.C. 2000); Dickens v. Puryear, 276 S.E.2d 325, 327 (N.C. 1981)

(holding that pointing a gun at a plaintiff’s face while “four men

wearing ski masks and armed with nightsticks then approached from

behind plaintiff and beat him into semi-consciousness” was

sufficiently extreme and outrageous).

Many employees may face difficult managers, unmanageable

workloads, and tension with their coworkers. But these are

insufficient to support an IIED claim. Sellers’s NIED and IIED

claims will therefore be dismissed on WFUBMC’s motions to dismiss

and for summary judgment, respectively.

D. Americans with Disabilities Act

Sellers’s third claim alleges WFUBMC violated the ADA when it

“intentionally discriminated against her on the basis of her

disability” by failing to provide her with reasonable

accommodation when she requested a quiet workspace where she could

focus on completing job-related paperwork. (Doc. 2 at 4.)

According to Sellers, this, in combination with the previously

discussed conditions of her work environment, exacerbated her

attention deficit disorder and caused her physician to place her

on medical leave for a short period. (Id.) Upon return from her

medical leave, Sellers alleges, her request for an additional four-

hour per week reduction in work hours was met “with hostility and

unwarranted disciplinary actions.” (Id.) WFUBMC moves for summary

judgment on Sellers’s claim on the ground there was no indication

that she needed the accommodation to satisfactorily perform her

job duties. (Doc. 19 at 16.)

The ADA generally prohibits employers from “discriminat[ing]

against a qualified individual on the basis of disability.” 42

U.S.C. § 12112(a). One form of discrimination is failing to make

“reasonable accommodations” for a disabled employee’s “known

physical or mental limitations,” unless the employer “can

demonstrate that the accommodation would impose an undue hardship”

on its business. Id. § 12112(b)(5)(A). To show an employer’s

failure to accommodate, the plaintiff must prove: (1) that she had

a disability within the statutory meaning; (2) that the employer

knew of her disability; (3) that a reasonable accommodation would

permit her to perform the essential functions of the position; and

(4) that the employer refused to make the accommodation. Wilson

v. Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013). Even if

a plaintiff makes this showing, the employer can still defeat the

failure-to-accommodate claim by demonstrating that the

accommodations would impose an undue hardship. U.S. Airways, Inc.

v. Barnett, 535 U.S. 391, 395 (2002).

WFUBMC does not dispute that Sellers has ADHD, that ADHD can

be a disability within the meaning of the ADA, and that her

coworkers were aware of her condition. (Doc. 19 at 16.) The

question is whether she has satisfied the final two elements.

WFUBMC argues that, because Sellers could perform her job duties

at a satisfactory level without accommodation, “there is no need

for the employer to provide [a reasonable accommodation].” (Id.)

This argument too narrowly construes the burden placed on

employers by the ADA. Title I of the ADA prohibits employers from

“discriminat[ing] against a qualified individual on the basis of

disability.” 42 U.S.C. § 12112(a). A “qualified individual” is

“an individual who, with or without reasonable accommodation, can

perform the essential functions of the employment position that

such individual holds or desires.” Id § 12111(8) (emphasis added).

As WFUBMC has admitted, Sellers could adequately perform the

essential functions of her employment, including seeing patients

and charting their information after the visits. WFUBMC points to

the fact that Sellers was capable of completing her work and cites

her desire to be overly meticulous as the reason for any delay.

(Doc. 19 at 16-17.) Because Sellers could perform the essential

functions of her job with or without reasonable accommodation, she

is a qualified individual under the ADA. The question then

becomes, whether a reasonable accommodation would enable Sellers

to complete her job and if so, whether she was denied a reasonable

accommodation by WFUBMC.

According to Sellers, her ADHD prevented her from staying

focused at times, making it difficult for her to complete her

charting. (Doc. 22-1 at 133:3-4.) In her deposition, Sellers

noted that some evenings she would spend hours after her shift

completing her charting in a quiet environment due to her ADHD.

(Id. at 132:2-11.) However, this only happened “[w]hen patient

volume would increase,” and there is no evidence in the record

that Sellers’s experience with longer than normal charting times

was due to her ADHD rather than an increased quantity of patients.

(Id.) Nor does Sellers allege that this increased patient load

was a problem unique to her or that her charting experience was

different from that of any other similarly situated nurse

practitioner during periods of higher patient volume. There is no

evidence that Sellers could not complete her job absent

accommodation or that an accommodation would enable her to perform

the essential duties which her ADHD prevented her from doing.

Sellers complains about the time she spent charting; however, Dr.

Smith told her that her charting “was more detailed than necessary”

and that she should “be less detailed in her documentation and []

spend less time on it.” (Doc. 20-7 at ¶ 4.)

Even assuming Sellers’s ADHD contributed to her long hours

charting and an accommodation could better enable Sellers to

perform her duties, the record reflects that Sellers was given

reasonable accommodation when possible. See Halpern v. Wake Forest

Univ. Health Scis., 669 F.3d 454, 464 (4th Cir. 2012) (noting

employers need not provide an employee’s proposed accommodation if

it “will cause undue hardship in the particular circumstances.”

(internal quotations omitted)). Sellers admits that on numerous

occasions she was able to use various offices as her own when they

were not being used. This includes Dr. Smith’s office, which

Sellers used “frequently,” (Doc. 20-1 at 113:10-12; Doc. 20-7 at

¶ 6) and Rideout’s office, which Sellers used occasionally (Doc.

20-1 at 123:19-23; Doc. 20-6 at ¶ 15(c). Additionally, once open

space became available, Sellers was able to permanently move into

one of two vacant offices where she would have a private space

free from distractions. (Doc. 22-1 at 133:5-21.) In her

deposition, Sellers specifically recalled “those other two offices

being open and available for [her] to utilize.” (Id. at 132:12-

16.) WFUBMC’s accommodations for Sellers came in spite of WFUBMC’s

“limited” space and in spite of the fact that only physicians

received private offices. (Doc. 20-6 at ¶ 15(c).) Every time

Sellers made a request for an accommodation, she was provided one,

and at no point did Sellers inform WFUBMC that the accommodation

she received was inadequate.

The ADA requires neither a perfect accommodation nor the exact

accommodation requested by the employee. See Reyazuddin v.

Montgomery Cnty., Md., 789 F.3d 407, 415 (4th Cir. 2015); Hannah

P. v. Coats, 916 F.3d 327, 337 (4th Cir. 2019). Access to a

private office, an accommodation not available to other nurse

practitioners, was a reasonable accommodation offered to and

accepted by Sellers, which provided her “a meaningful equal

employment opportunity.” Reyazuddin, 789 F.3d at 415. WFUBMC’s

accommodation gave Sellers “an opportunity to attain the same level

of performance as is available to nondisabled employees having

similar skills and abilities.” Id. at 416. As such, WFUBMC did

not fail to accommodate her disability, and WFUBMC is entitled to

summary judgment on Sellers’s failure to accommodate claim.

To the extent Sellers contends WFUBMC failed to accommodate

her GAD, that claim is without merit. The only accommodation

Sellers requested in connection with her GAD was FMLA leave, which

she was indisputably granted. (Doc. 20-1 at 250:15-18.)

E. Bonus Money

Sellers alleges that she received performance bonuses for

both 2019 and 2020 during her employment with WFUBMC. (Doc. 2 at

6.) She claims that despite her demands, WFUBMC has failed to pay

these bonuses. (Id.) WFUBMC moves for summary judgment on the

ground that Sellers received all bonus money for which she was

eligible. (Doc. 19 at 12.) In support of its motion, WFUBMC

attaches proof of payment, and Sellers does not address this

argument in her response brief. The court therefore considers it

conceded. L.R. 7.3(k). However, the Fourth Circuit still requires

that unopposed dispositive motions be reviewed to determine if

dismissal is proper. Jones v. SSC Durham Operating Co., LLC, No.

1:17CV686, 2019 WL 290036, at *2 (M.D.N.C. Jan. 22, 2019) (citing

Stevenson v. City of Seat Pleasant, Md., 743 F.3d 411, 416 n.3

(4th Cir. 2014)). Even so, the court’s review on the merits

demonstrates that dismissal is appropriate.

WFUBMC attaches the affidavit of Mary Rice, Associate Vice

President and Chief Financial Officer for WFUBMC, in which Rice

notes that for the 2019 fiscal year, Sellers was entitled to a

bonus of $1,231.02. (Doc. 20-5 at ¶ 9.) For the first and second

quarters of 2020, Sellers was entitled to bonuses of $261.55 and

$800.47, respectively. (Id. at ¶¶ 11, 13.) Affixed to Rice’s

affidavit are financial records indicating Sellers’s paychecks for

the relevant periods. (Id. at 10-13.) Each paycheck contains

Sellers’s base pay as well as a line for any bonus payments she

received. (Id.) Each paycheck reflects the bonus Sellers received

for that time period. For instance, for the second quarter of

2020, which ran from October to December of 2019, Sellers’s

paycheck reflects a bonus payment of $800.47, which is what she

was owed according to Rice. (Id. at 12.) There are paychecks

reflecting bonuses in the other amounts noted by Rice as well.

Sellers does not contest the validity of these records.

In January 2020, WFUBMC modified its compensation model to

include incentive payments based on productivity. (Id. at ¶ 14.)

These incentives are available to those advanced practice

providers whose productivity was in the 60th percentile or above.

(Id.) Sellers seemingly did not qualify for this incentive bonus

as she was below the 60th percentile for productivity. (Id. at ¶

16.)6 In addition to the incentive bonuses, all advanced practice

providers, no matter their productivity, were eligible to receive

a flat value incentive bonus based on their specialty of care.

(Id.) This flat value bonus was $2,500 per fiscal year. (Id.)

However, because the compensation model was modified in January of

2020, halfway through the 2020 fiscal year, only half of the flat

value bonus was available to advanced practice providers like

Sellers. (Id.) Therefore, Sellers was entitled to $1250.00 which

she received in her July 31, 2020 paycheck. (Id. at 13.)

Sellers does not dispute any of the amounts listed by Rice.

At her deposition, Sellers could not articulate the amount she was

owed for 2019 or for 2020. (Doc. 20-1 at 85:16-88:21.) In

deposition she stated that she was entitled to $1,250.00 of

“incentive pay” because, while she left the office on July 2, her

notice extended through July 12. (Id.) It is unclear which

incentive Sellers is discussing, but presumably she is referring

to the other half of the $2,500 flat value bonus. The fact that

her notice extended for another week does not have any bearing on

6 Sellers does not dispute that she was below the 60th percentile for

productivity as measured by her accrued work relative value units.

whether she was eligible for a productivity incentive bonus,

because that extra week was her furlough week in which she would

not see any patients. (Id.)

To the extent Sellers argues she is entitled to $1,250.00 as

another half of the flat value incentive, she is incorrect. July

1 began the new fiscal year for WFUBMC. The flat value incentives

are paid on a yearly basis. (Doc. 20-5 at ¶ 15.) Therefore, the

flat value incentive for the 2021 fiscal year would be paid on

July 31, 2021, as a bonus for the last year. Sellers received

$1,250 for half of the 2020 fiscal year between January 1 and July

31, 2020, which was half of the yearly bonus because the bonus

program started halfway through the 2020 fiscal year. (Id. at

13.) Having an additional week in her notice period during which

she could not work because she was furloughed would not entitle

her to an additional flat value bonus.

As noted, Sellers does not contest either the validity or

accuracy of the financial records indicating she was paid all

bonuses for which she was eligible. Therefore, based on the

undisputed facts, WFUBMC’s motion for summary judgment on

Sellers’s fourth cause of action is granted to all claims for bonus

money.

III. CONCLUSION

For the reasons stated,

IT IS ORDERED that WFUBMC’s motion for summary judgment as to

Sellers’s claims for wrongful constructive discharge, intentional

infliction of emotional distress, failure to accommodate pursuant

to the ADA, and unpaid bonus money is GRANTED, and judgment shall

be entered for WFUBMC.

IT IS FURTHER ORDERED that WFUBMC’s motion to dismiss

Sellers’s claim for negligent infliction of emotional distress is

GRANTED and that claim is DISMISSED.

As this disposes of all of Sellers’s claims, the Clerk of

Court is directed to close this case.

/s/ Thomas D. Schroeder

United States District Judge

January 21, 2022