Polk v. Mecklenburg County

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL ACTION NO. 3:20-CV-00483-FDW-DCK

VERONICA POLK,

Plaintiff,

v. ORDER

MECKLENBURG COUNTY,

Defendant.

THIS MATTER is before the Court on Defendant’s Motion for Summary Judgment. (Doc.

No. 26), and Plaintiff’s Motion to Supplement the Record, (Doc. No. 30). The Court held a hearing

on the two motions on June 21, 2021, and for the reasons stated in open Court, Plaintiff’s Motion

to Supplement, (Doc. No. 30), is GRANTED. After carefully reviewing the briefing, the evidence

submitted by the parties, and the arguments presented at the hearing, and for the reasons stated

herein, the Court GRANTS IN PART and DENIES IN PART Defendant’s Motion for Summary

Judgment. (Doc. No. 26).

I. BACKGROUND1

This lawsuit arises out of Veronica Polk’s (“Plaintiff”) employment as an Adult STD

Health Nurse with Mecklenburg County Health Department (“Health Department”). (Doc. No. 26-

1, p. 3). Before starting her role as an Adult STD Nurse, Plaintiff worked as a Pediatric Nurse Case

Manager for the Health Department in 2017. (Doc. No. 27, p. 1). Toward the end of her time in

pediatrics, Plaintiff received a Written Coaching Memo in November 2017, notifying her that

1 The background set forth herein is taken from a combination of the parties’ briefing and attached exhibits. The

background is taken in the light most favorable to Plaintiff as the nonmoving party.

various aspects of her job performance were unsatisfactory, including her repeated failures to

timely follow up with patients. (Doc. No. 26-8). Shortly after Plaintiff received the Written

Coaching Memo, she transferred to the Adult Health Work Unit and began her role as an Adult

STD Nurse. (Doc. No. 27, p. 1). In her role as an Adult STD Nurse, Plaintiff was responsible for

“informing patients and their partners of the results of sexually transmitted disease testing and

referring patients out to the appropriate agencies.” (Doc. No. 27, p. 1).

Beginning in March of 2018, Plaintiff began to have issues with her supervisor, Ms. Linda

Kinney, particularly with respect to workflow protocol. Plaintiff emailed Ms. Kinney about “areas

[in work protocol] that need further discussion and review.” (Doc. No. 27-2, p. 5). Throughout

March and April 2018, Plaintiff sent various emails to supervisors within the Health Department,

describing her concerns with workflow and protocol. For example, on April 3, 2018, Plaintiff sent

an email to Ms. Kinney and other supervisors detailing “examples of how the established protocol

steps do not correlate with actual clinic flow.” (Doc. No. 27-2, p. 9). One such example was

Plaintiff’s concern with timely notification protocol. As Plaintiff explained in her email, the

required three follow-up phone calls were an unrealistic work requirement because “it is

sometimes impossible to contact patients 3 times within a 24 hour timeframe . . . in addition to

[Plaintiff’s] other expected duties.” Id. Plaintiff also emailed the United States Department of

Health and Human Services, alleging various generalized instances of fraud and negligence

committed by the Mecklenburg County Health Department. (Doc. No. 30-5, p. 10). Other emails

in the record reflect similar concerns.2 See (Doc. Nos. 27-2, pp. 5-13; 27-3, pp. 1-7).

2 Plaintiff also alleges she spoke to “County Manager Dena Diorio” about what Plaintiff characterizes as her “Health

and Safety Concerns,” but there is no evidence of this in the record beyond Plaintiff’s own affidavit. See (Doc. No.

27-1, p. 7).

Throughout her employment as an Adult STD Nurse, Plaintiff took various instances of

leave under the FMLA to care for her family and for herself. In her declaration, Plaintiff states she

has been diagnosed with PTSD, migraines, and hand tremors. (Doc. No. 27-1, pp, 3-4). Although

the record is unclear with respect to the exact dates and timeline for Plaintiff’s various requests for

FMLA leave, it is clear that she was denied leave once in October 2018 for failure to provide

requisite medical certification, (Doc. No. 30-4, pp. 8-14), and that she was approved intermittent

leave to occur between January 2019 and July 2019. (Doc. No. 30-4, p. 33).

During the time frame for which such intermittent leave was requested and approved,

Plaintiff “left early [on March 27, 2019] without permission” and texted her supervisor: “I left and

texted to advise I have a health issue that I need to attend to. I know you’re short staffed, so I will

do my best to return. Please don’t cause a scene about it.” (Doc. No. 26-6, pp. 3, 22). Plaintiff also

“left early on March 21, 2019, before a scheduled day off on March 22, 2019, and called out the

following business day, March 25, 2019.” Id. at p. 3. Plaintiff’s absences in late March were cited

as a reason for her termination. Id. Plaintiff’s employment was formally terminated on April 25,

2019. Id. at p. 2.

As a result of her termination, Plaintiff instituted this lawsuit, filed initially in state court,

in June 2020. (Doc. No. 1-1). She asserted four causes of action against Defendant, alleging her

termination was: (1) unlawful retaliation under the First Amendment; (2) disability discrimination

in violation of the Americans With Disabilities Act (“ADA”); (3) wrongful in violation of North

Carolina public policy as stated in North Carolina’s Equal Employment Practices Act

(“NCEEPA”); and (4) wrongful in violation of North Carolina public policy as stated in North

Carolina’s Public Health Law. (Doc. No. 1-1). Upon removal to this Court, and after Defendant’s

initial Motion to Dismiss ripened for review, (Doc. No. 6), Plaintiff amended her Complaint and

added one new count: interference with her rights under and retaliation in violation of the Family

Medical Leave Act (“FMLA”). (Doc. No. 13). Defendant filed a Motion to Dismiss Plaintiff’s

Amended Complaint on March 9, 2021, (Doc. No. 14), which the Court granted in part and denied

in part. (Doc. No. 21). The Court left in place all but Plaintiff’s claim for wrongful discharge in

violation of public policy as stated in North Carolina’s Public Health Law. Id. Shortly thereafter,

Defendant filed the instant Motion for Summary Judgment, which served as the basis of the hearing

conducted on June 21, 2021. After reviewing the briefing by the parties, the exhibits submitted by

the parties, and considering the arguments set forth at the hearing, the Court addresses Defendant’s

Motion for Summary Judgment herein.

II. STANDARD OF REVIEW

Summary judgment shall be granted “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). A factual dispute is genuine “if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

fact is material only if it might affect the outcome of the suit under governing law. Id.

The movant has the “initial responsibility of informing the district court of 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)

(internal citations omitted).

Once this initial burden is met, the burden shifts to the nonmoving party. The nonmoving

party “must set forth specific facts showing that there is a genuine issue for trial.” Id. at 322 n.3.

The nonmoving party may not rely upon mere allegations or denials of allegations in his pleadings

to defeat a motion for summary judgment. Id. at 324. The nonmoving party must present sufficient

evidence from which “a reasonable jury could return a verdict for the nonmoving party.”

Anderson, 477 U.S. at 248; accord Sylvia Dev. Corp. v. Calvert Cnty., Md., 48 F.3d 810, 818 (4th

Cir. 1995).

When ruling on a summary judgment motion, a court must view the evidence and any

inferences from the evidence in the light most favorable to the nonmoving party. Anderson, 477

U.S. at 255. “‘Where the record taken as a whole could not lead a rational trier of fact to find for

the nonmoving party, there is no genuine issue for trial.’” Ricci v. DeStefano, 557 U.S. 557, 586

(2009) (quoting Matsushita v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

III. ANALYSIS

A. First Amendment

Defendant first argues Plaintiff cannot assert a retaliation claim under the First Amendment

via 42 U.S.C.§ 1983 as a matter of law. (Doc. No. 26).

The First Amendment to the Constitution provides that “Congress shall make no law . . .

abridging the freedom of speech.” U.S. Cont. amend. I. The right to freedom of speech includes

the right to be free from retaliation for engaging in protected speech. Suarez Corp. Indus. v.

McGraw, 202 F.3d 676, 685 (4th Cir. 2000). Notably, public employees are protected “from

termination of their employment in retaliation for their exercise of speech on matters of public

concern.” McVey v. Stacy, 157 F.3d 271, 277 (4th Cir. 1998). “‘[P]ersonal grievances [such as]

complaints about conditions of employment, or expressions about other matters of personal interest

do not constitute speech about matters of public concern that are protected by the First

Amendment.’” Id. (quoting Stroman v. Colleton Cnty. Sch. Dist., 981 F.2d 153, 156 (4th Cir.

1992)).

Whether an employee is speaking on a matter of public concern is the “threshold question.”

Brooks v. Arthur, 685 F.3d 367, 371 (4th Cir. 2012) (citation and quotation omitted). In

determining whether a public employee’s speech is protected under the First Amendment, courts

are instructed to “consider the ‘content, form, and context of a given statement.’” Id. (quoting

Connick v. Myers, 461 U.S. 138, 147-48 (1983)). Specifically, courts should “scrutinize the

comments to assess whether they are intended ‘to evaluate the performance of the office’—which

would merit constitutional protection—or merely ‘to gather ammunition for another round of

controversy’ with superiors—which would not.” Brooks, 685 F.3d at 371 (quoting Connick, 461

U.S. at 148). Ultimately, courts should be “wary of affording the broad cover of the First

Amendment to comments limited to ‘grievances about conditions of employment that cannot be

considered matters of public concern.’” Brooks, 685 F.3d at 372 (quoting Campbell v. Galloway,

483 F.3d 258, 267 (4th Cir. 2007)).

Defendant moves for summary judgment of Plaintiff’s First Amendment claim for three

reasons: first, Plaintiff has not and cannot establish municipal liability under 42 U.S.C. § 1983;

second, Plaintiff has not engaged in protected speech; and third, Plaintiff has not established

causation. (Doc. No. 26-1, pp. 6-10). The Court will address each of Defendant’s arguments in

turn.

1. Municipal Liability

Defendant first argues Plaintiff has failed to establish a county policy or custom of

retaliation in violation of the county’s employees’ First Amendment Rights. In response, Plaintiff

simply argues:

[S]he has provided sufficient evidence that Defendant had a custom or policy of

violating its employee’s [F]irst Amendment rights. First, there were at least two

other recent federal cases arising from the Health Department’s adverse treatment

of employees which were pending in this District. In both cases, the employees

complained that they had raises [sic] concerns about public health violations and

had suffered termination or other adverse actions in retaliation for those concerns.

(Doc. No. 27, p. 13).

To prevail on a § 1983 claim against a municipality, a plaintiff must show that the

constitutional violation was caused by an official custom or policy of the municipality. Monell v.

Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978). Municipal policy is most easily

found in local ordinances and regulations, but policy may also be found in “informal ad hoc

‘policy’ choices or decisions of municipal officials authorized to make and implement municipal

policy.” Spell v. McDaniel, 824 F.2d 1380, 1385 (4th Cir 1987) (emphasis in original). “To hold

a municipality liable for a single decision (or violation), the decisionmaker must possess ‘final

authority to establish municipal policy with respect to the action ordered.’” Love-Lane v. Martin,

355 F.3d 766, 782 (4th Cir. 2004) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481

(1986)). The question of who possesses final policymaking authority is one of state law. Pembaur,

475 U.S. at 483.

Here, Plaintiff has not provided any evidence whatsoever that Defendant had a municipal

policy or custom of retaliating against employees in violation of its employees’ First Amendment

rights.

First, Plaintiff does not identify or provide evidence that the person who made the decision

to terminate her employment was a final policymaker.3 To the contrary, evidence submitted by

Defendant, and not disputed by Plaintiff, indicates that, upon termination, Plaintiff was notified of

her right to appeal her termination and she opted not to pursue the appeals process. (Doc. No. 26-

6, p. 60); see also (Doc. No. 26-1, p. 5). Plaintiff’s termination cannot be said to be the decision of

3 Defendant indicates that the County Manager is the final decisionmaker for termination decisions made by the

Health Department. See (Doc. No. 26-1, p. 7). Plaintiff does not dispute this. See generally (Doc. No. 27).

an individual with final policymaking authority if such decision can be reversed or overturned by

someone else. See Love-Lane, 355 F.3d 766 at 782-83 (“[The plaintiff] must demonstrate that the

[municipality] was aware of the constitutional violation and either participated in, or otherwise

condoned it.”). Without any evidence, or even argument, that the individual who decided to

terminate Plaintiff was a final policymaker, the Court is left to assume Plaintiff attempts to

establish respondent superior liability, which is impermissible as a matter of law under § 1983.

See Monell, 436 U.S. at 691.

Second, all Plaintiff points to as evidence of a county policy or custom is the existence of

two previous federal lawsuits “arising from the Health Department’s adverse treatment of

employees.” (Doc. No. 27, p. 13). However, “citation to lawsuits is not equivalent to offering

[evidence] of” municipal policy or custom, particularly when the lawsuits result in no liability for

the defendant.4 See Ulloa v. Prince George’s Cnty., Md., No. 15-0257, 2015 WL 7878956, at *4-

5 (D. Md. Dec. 4, 2015). By attempting to rely only on two lawsuits in which the plaintiffs did not

prevail on the merits as evidence of a municipal policy or custom, Plaintiff fails to show the

existence of a genuine dispute of material fact with respect to municipal liability.

2. Protected Conduct

Even assuming Plaintiff could somehow show a genuine dispute exists with respect to

municipal liability, the evidence before the Court fails to establish a genuine dispute as to whether

Plaintiff was speaking on a matter of public concern. The content, form, and context of Plaintiff’s

speech reveals that her speech concerned personal grievances and complaints about the conditions

4 Notably, Defendant provided the Court with citations to the cases Plaintiff points to as evidence of municipal

custom or policy. The cases are Adams v. Mecklenburg Cnty., No. 3:19-cv-00602-GCM, and Nicholson v.

Mecklenburg Cnty., No. 3:18-cv-00167-FDW-DCK.

of her employment, which is not the type of speech that is entitled to protection under the First

Amendment.

First, as to content, Plaintiff’s characterization of her speech differs markedly from the

substantive content of her speech as evidenced by emails she provided. For example, Plaintiff

states in her affidavit that she requested “corrective action be taken in regard to inaccuracies with

STD testing and inconsistencies with protocol and procedure for STI pool notification. (Doc. No.

27-1, p. 2). She also states that she “reached out directly to Linda Kinney to raise concerns

regarding improper training” and regarding the issuance of letters written in English to non-English

speaking patients. Id. at pp. 2-3. However, Plaintiff’s emails—provided by Plaintiff herself—paint

a different picture.

In the emails Plaintiff cites to as evidence of her speaking out about the issue of translation

issues for patients, Plaintiff explains to her supervisor that she needs a letter translated into Nepali

and asks her supervisor to “unlock [Plaintiff’s] ability to modify the letters . . . so that [Plaintiff]

can set up and print [her] letters in the system.” (Doc. No. 27-3, p. 5). In response, a supervisor,

Wendy Lacy (“Ms. Lacy”), directed Plaintiff to send a “clean” copy of the letter to have translated,

and Ms. Lacy offered her help if Plaintiff needed further assistance. Id. at pp. 3-4. The remaining

emails discussing translation needs demonstrate that Plaintiff’s supervisors were responsive to her

various translation needs and accommodated Plaintiff’s requests for translation. See id. at pp. 1-7

(“Hi Veronica, I have attached the STD letter in English & Spanish.”).

In another email sent by Plaintiff to her supervisors, Plaintiff explains she has “identified

areas [of the proposed SO-17] that need further discussion and review,” and suggests a round table

discussion on “changes and clarification of what is written.”5 (Doc. No. 27-2, p. 5). Plaintiff

5 Neither Plaintiff nor Defendant explain or provide evidence explaining what SO-17 is.

emailed that “it would be selfish of anyone to compose this without understanding how this may

affect another’s role or departments functionality.” Id. The email does not contain any mention of

the types of “Health and Safety Concerns” Plaintiff describes in her affidavit.

In yet another email cited as evidence of Plaintiff’s speech on matters of public concern,

Plaintiff explained to her supervisor that various aspects of “established protocol” did not

“correlate with the actual clinic flow.” (Doc. No. 27-1, p. 9). As an example, Plaintiff complains

that the requirement of three phone calls to a patient within twenty-four hours is “sometimes

impossible” because if she had “10 patients that needed to be contacted by phone possibly x3 that

will equal 30 calls within a 24 hour period in addition to [Plaintiff’s] other expected duties.” Id.

In the same email, Plaintiff asks to “discuss how we can make adjustments to fit the better interest

of the true flow of this work,” because Plaintiff felt “as if . . . duties were dumped on [her] with no

support from [her] designated trainer.” Id. at p. 10. No reasonable jury could consider this speech

anything other than complaints about the conditions of Plaintiff’s employment.

Ultimately, the content of Plaintiff’s emails to supervisors demonstrates a dissatisfaction

with workflow and other conditions of employment, as well as various needs for clarification of

protocol. The content of Plaintiff’s speech does not seek to inform the public “about the

Mecklenburg County Health Department[’]s refusal to follow regulatory requirements.” (Doc. No.

27, p. 13). Nor do any of Plaintiff’s emails “seek to bring to light actual or potential wrongdoing

or breach of public trust.” See Brooks, 685 F.3d at 373 (citation omitted). Plaintiff’s emails, “if

released to the public, would convey no information at all other than the fact that a single employee

is upset with the status quo.”6 Id. (citation and quotation omitted).

6 Plaintiff’s Exhibit 5 reflects an email chain between multiple Health Department employees, including Plaintiff,

regarding “Standardized Workflow for Communication of STD Test Results,” but the emails sent by Plaintiff have

no substantive content. See (Doc. No. 27-12). Moreover, Plaintiff does not cite to this Exhibit anywhere in her

Second, as to form and context, Plaintiff’s complaints were all expressed via email to her

supervisors or other Health Department staff, and the emails were sent within the context of

personal dissatisfaction or protocol/workflow inquiry. To be sure, Plaintiff states that she contacted

County Managers about her Health and Safety Concerns via email, but as with the emails described

above, the content and context reflect statements made by an employee who was unhappy with her

supervisor. See (Doc. No. 27-7, pp. 26-28). Plaintiff also states that she “initiated a formal

complaint with the U.S. Health and Human Services Office of Inspector General, (“OIG”)” and

cites to an email sent on March 11, 2019, but she provides no evidence that the email was received

or acknowledged by the OIG.7 See (Doc. No. 30-5, p. 10).

Plaintiff also avers that she addressed “County Manager Dina Diorio at a general body

meeting” about the Health & Safety concerns, but there is no evidence of this in the record. Plaintiff

cites to Exhibit L-2, but Exhibit L-2 reflects an email chain between Plaintiff and Julie Berger, in

which Plaintiff states “I then sent an official grievance to Dena Diorio;” however, Plaintiff does

not make any actual substantive statements about her alleged Health & Safety concerns. (Doc. No.

30-5, pp. 11-20). There is simply no evidence in the record of the actual grievance sent to Ms.

Diorio. The only complaints documented in the record were complaints sent via email, which

discussed Plaintiff’s workflow and supervisor concerns. Emails sent to county managers and

internally to supervisors may be fairly said to be “public” in form, but the context of Plaintiff’s

emails clearly demonstrate that Plaintiff did “not seek to communicate to the public or to advance

a political or social point of view beyond the employment context.” See Brooks, 685 F.3d at 373.

Opposition Motion. See (Doc. No. 27). Regardless, to the extent Plaintiff seeks to rely on the evidence presented in

Exhibit 5, there is no documented speech made by Plaintiff.

7 Even if the email were received and acknowledged by the OIG, the email does not cite to any facts that would

serve as the basis of Plaintiff’s complaints and there is no evidence in the record that Defendants were aware of the

email. See (Doc. No. 30-5, p. 10).

Ultimately, Plaintiff’s own uncontroverted evidence demonstrates that her complaints are

more accurately characterized as personal grievances rather than matters of public concern. The

only evidence that Plaintiff provided to support her characterization of her complaints is her own

affidavit. Plaintiff’s personal characterization of her speech is insufficient to counter the substantial

evidence—provided by Plaintiff herself—showing that she spoke about private concerns regarding

the conditions of her employment. There is accordingly no genuine dispute as to whether Plaintiff

engaged in protected conduct—the evidence demonstrates that she did not, and Defendant is

entitled to summary judgment on Plaintiff’s First Amendment claim.8

B. Americans with Disabilities Act9

The ADA prohibits employers from “discriminat[ing] against a qualified individual on the

basis of disability in regard to job application procedures, the hiring, advancement, or discharge

of employees, employee compensation, job training, and other terms, conditions, and privileges or

employment.” 42 U.S.C. § 12112(a). The ADA also prohibits employers from retaliating against

employees who engage in protected ADA activity. § 12203(a).

Here, Plaintiff asserts Defendant generally discriminated against her in violation of the

Americans with Disabilities Act, but Plaintiff does not make clear whether she is asserting a

retaliation claim, a discrimination claim, or both. See (Doc. No. 13, pp. 24-25). The Court will

accordingly evaluate the merits of an ADA retaliation claim and the merits of an ADA

discrimination claim in turn.

8 In the interest of judicial efficiency, the Court declines to analyze Defendant’s causation argument.

9 Based on the record before it, the Court notes that Plaintiff has not filed an EEOC charge prior to filing suit, which

is a mandatory requirement. See Sydnor v. Fairfax Cnty., Va., 681 F.3d 591, 593 (4th Cir. 2012). However, because

the requirement is procedural rather than jurisdictional, the issue is waivable if not raised at the appropriate stage of

litigation. See Fort Bend Cnty, Tx. v. Davis, 139 S. Ct. 1843, 1851-52 (2019) (holding that Title VII’s “charge-filing

requirement” is “mandatory without being jurisdictional”). Defendants here have not raised the EEOC issue, and the

Court accordingly declines to address it.

1. Discrimination

To survive summary judgment for an ADA discrimination claim, a plaintiff is required to

“provide evidence sufficient to demonstrate that (1) [s]he ‘was a qualified individual with a

disability’; (2) [s]he was ‘discharged’; (3) [s]he ‘was fulfilling h[er] employer’s legitimate

expectations at the time of discharge’; and (4) ‘the circumstances of h[er] discharge raise a

reasonable inference of unlawful discrimination.’” Reynolds v. Am. Nat. Red Cross, 701 F.3d 143,

150 (4th Cir. 2012) (quoting Rohan v. Networks Presentations, LLC, 375 F.3d 266, 277 n.9 (4th

Cir. 2004)). Once the prima facie case is established, Defendant has an opportunity to produce

evidence of a legitimate, non-discriminatory reason for terminating Plaintiff. See McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The burden then shifts to Plaintiff to provide

evidence that Defendant’s non-discriminatory justification was merely pretext. See id. at 804.

Defendant does not contest that Plaintiff is a qualified individual with a disability and only

argues there is no evidence to support that Plaintiff was meeting her employer’s legitimate

expectations at the time of discharge.10

In her Opposition Motion, Plaintiff asserts she was meeting her employer’s legitimate

expectations. As evidence for this, Plaintiff points to one email from her supervisor, Ms. Linda

Kinney, in which Ms. Kinney told Plaintiff “We are a dream team!” (Doc. No. 27-2, p. 3). Plaintiff

also states in her Opposition Motion, that on another occasion, Ms. Kinney told Plaintiff that “the

team was lucky to have [Plaintiff],” but there is no evidence of this in the record beyond Plaintiff’s

own Declaration. See (Doc. No. 27, p. 9). As to the “we are a dream team” email, the email

provides no context for Ms. Kinney’s statement. See (Doc. No. 27-2, p. 3). The only context the

10 Defendant does not contest that Plaintiff is a qualified individual with a disability. (Doc. No. 26-1, p. 14).

However, the Court is nonetheless concerned with the dearth of objective medical evidence in the record to support

Plaintiff’s claim that she is disabled for purposes of the ADA. Indeed, there is no medical evidence in the record.

Court can glean is from the subject line, which reads: “Re: STD Test Result Communication

Discrepancies.” Id. However, a subject line and statement of “we are a dream team” from a

supervisor without any further context is insufficient to raise a genuine dispute as to whether

Plaintiff was meeting her employer’s legitimate expectations. Plaintiff also argues that any

criticisms of her work were “wholly unwarranted,” without providing any factual, as opposed to

opinion, evidence in support. (Doc. No. 27, p. 9). Plaintiff can point to no other evidence in the

record to raise a genuine dispute as to whether Defendant was satisfied with her work performance.

Indeed, Defendant has provided substantial record evidence indicating the Health

Department was dissatisfied with Plaintiff’s work performance long before her termination.

Defendant has submitted a copy of Plaintiff’s Termination Package, which is 61 pages long and

details numerous instances of Written Performance Reminders, complaints of absenteeism,

inability to timely notify patients of test results, and inappropriate interactions with fellow

employees. See (Doc. No. 26-6). Moreover, Plaintiff and Defendant provided as evidence

Plaintiff’s Annual Performance Review from September 2018, which indicates that Plaintiff was

given an “NI” grade for each of her core competencies.11 See (Doc. Nos. 26-7, 27-6). The only

difference between Plaintiff’s Exhibit and Defendant’s Exhibit is that Plaintiff provides her own

written response to the performance review. Compare (Doc. No. 26-7) with (Doc. No. 27-6).

Also notable is Plaintiff’s Written Coaching Memo, dated November 21, 2017—months

before any alleged discrimination took place. (Doc. No. 26-8). The Memo, signed by Plaintiff,

explains that Plaintiff was verbally coached on her performance issues seven times before she was

issued the Written Coaching Memo. Id. The Memo sets forth in detail a number of Plaintiff’s

performance issues, including that Plaintiff was behind on her work. Id. Plaintiff’s failure to timely

11 The Court presumes “NI” refers to “Needs Improvement” because the comments on the Review repeatedly

indicate that “[Plaintiff] needs improvement.” See (Doc. No. 26-7).

complete her work was a stated reason for her termination in April 2019. See (Doc. No. 26-6, p.

4).

Ultimately, Plaintiff can only point to two statements made by Ms. Kinney, which mention

Plaintiff’s contributions to the “team,” in support of her argument, but such statements contain no

context that could lead a reasonable jury to conclude Plaintiff was meeting her employer’s

legitimate expectations.12 Plaintiff’s characterizations of the other, undisputed record evidence are

simply insufficient to withstand summary judgment on the record before the Court. See Evans v.

Techs. Application Serv. Co., 80 F.3d 954, 960-61 (4th Cir. 1996) (noting that in a discrimination

case, “it is the perception of the decision maker [of the employer] which is relevant, not the self-

assessment of the plaintiff”); Bryant v. Bell Atl. Md. Inc., 288 F.3d 124, 134-35 (4th Cir. 2002)

(“These affidavits, however, amount to no more than subjective beliefs, and such evidence, without

more is insufficient to create a genuine issue of material fact.”). Defendant is accordingly entitled

to summary judgment on Plaintiff’s ADA discrimination claim.

2. Retaliation

The ADA provides that “no person shall discriminate against any individual because such

individual has opposed any act or practice made unlawful by this chapter or because such

individual made a charge, testified, assisted, or participated in any manner in an investigation,

proceeding or hearing under this chapter.” 42 U.S.C. § 12203(a).

A plaintiff asserting retaliation in violation of the ADA must “either offer sufficient direct

and indirect evidence of retaliation[] or proceed under a burden-shifting method.” Rhoads v.

12 Whether or not Plaintiff was meeting Ms. Kinney’s legitimate expectations is a meaningfully different inquiry

than the inquiry of whether Plaintiff was meeting her employer’s legitimate expectations. Undisputed evidence in

the record indicates that, in mid-2018, neither Plaintiff nor Ms. Kinney were meeting their employer’s legitimate

expectations. See (Doc. No. 26-9) A Human Resources Department Investigation revealed that Ms. Kinney “failed

to provide adequate training oversight” and “did not conduct formal supervisory meetings with [Plaintiff].” Id. at p.

5. If Ms. Kinney herself was not meeting her employer’s legitimate expectations, Plaintiff cannot rely on only Ms.

Kinney’s passing statements as evidence that Plaintiff was meeting her employer’s legitimate expectations.

F.D.I.C., 257 F.3d 373, 391 (4th Cir. 2001) (citation omitted). If proceeding under the first method,

a plaintiff will only survive summary judgment if he or she “produce[s] direct evidence of a stated

purpose to discriminate and/or [indirect] evidence of sufficient probative force to reflect a genuine

issue of material fact.” Id. (citation and quotation omitted). If proceeding under a burden-shifting

method, a plaintiff must first prove a prima facie case of retaliation and show that “(1) [s]he

engaged in protected conduct, (2) she suffered an adverse action, and (3) a causal link exists

between the protected conduct and the adverse action.” Reynolds, 701 F.3d at 154 (citation

omitted). If a prima facie case is established, the burden shifts to the employer to show that it had

“legitimate nonretaliatory reason[s] for its actions.” Rhoads, 257 F.3d at 392. Finally, the plaintiff

must establish that any legitimate reason offered by the employer is simply pretext. Id.

Here, Plaintiff has offered no direct or indirect evidence of stated purpose to discriminate

and must accordingly proceed under a burden shifting framework. Under a burden shifting

framework, Defendant argues that Plaintiff has not engaged in any protected activity, which is an

essential element of Plaintiff’s retaliation claim. (Doc. No. 26-1, p. 13). Plaintiff does not dispute

this. See (Doc. No. 27). Indeed, after careful review of the record, the Court finds Plaintiff has not

even alleged she engaged in the conduct protected under the ADA. To be sure, Plaintiff alleges

“retaliation” generally, but does not specify any instances of ADA-protected conduct other than

taking FMLA leave, which is more appropriately handled under the FMLA. Thus, to the extent

Plaintiff asserts an ADA retaliation claim, Defendant is entitled to summary judgment.

C. Wrongful Discharge in Violation of North Carolina Public Policy (N.C. Gen. Stat.

§ 143-422.1)

North Carolina’s Equal Employment Practices Act (“NCEEPA”) provides that “[i]t is the

public policy of this State to protect and safeguard the right and opportunity of all persons to seek,

obtain and hold employment without discrimination or abridgement on account of race, religion,

color, national origin, age, sex or handicap.” N.C. GEN. STAT. § 143-422.2(a). When asserting a

wrongful discharge claim in violation of public policy as set forth by the NCEEPA, a plaintiff

bears the same evidentiary burden as required for an ADA claim. See N.C. Dep’t of Corr. v.

Gibson, 301 S.E.2d 78, 84 (N.C. 1983) (adopting the “evidentiary standards and principles of law”

of Title VII for discrimination claims asserted pursuant to the NCEEPA); see also Perdue v. Sanofi-

Aventis, U.S., LLC, No. 19-2094, 2021 WL 2324553, at *6 n.5 (4th Cir. June 8, 2021); Brown v.

Martin Marietta Materials, Inc., 440 F. Supp. 3d 503, 519-20 (M.D.N.C. 2020) (holding that a

wrongful discharge claim in violation of the NCEEPA rises and falls with an ADA claim). Here,

Plaintiff has not met her evidentiary burden with respect to her ADA claim; her wrongful discharge

claim in violation of public policy as set forth in the NCEEPA must also fail.

D. Family and Medical Leave Act

The Family and Medical Leave Act makes it unlawful for an employer to “interfere with,

restrain, or deny the exercise of . . . any right under [the FMLA]” or to “discharge or . . .

discriminate against any individual for opposing any practice made unlawful by [the FMLA].”

29 U.S.C. § 2615(a). At oral argument, Plaintiff made clear that she is asserting both an FMLA

interference claim and an FMLA retaliation claim. The Court accordingly evaluates the merits of

Plaintiff’s FMLA claims under both the interference and retaliation theories.

1. Statute of Limitations

At the outset however, the Court must consider whether any portion of Plaintiff’s FMLA

claim is time-barred. The FMLA contains a statute of limitations, requiring any lawsuit to be filed

within two-year of an alleged violation of the Act. § 2617(c)(1). The limitations period is extended

to three years for willful violations. § 2617(c)(2). Willful violations occur when the “employer

‘knew or showed reckless disregard [as to] whether its conduct was prohibited [by the FMLA].’”

IJames v. Autumn Corp., No. 1:08CV777, 2009 WL 2171252, at *13 (M.D.N.C. July 20, 2009)

(quoting Settle v. S.W. Rodgers Co., 182 F.3d 909 (4th Cir. 1999) (unpublished table decision)).

Willful violations of the FMLA generally do not occur when an employee’s request for FMLA

leave has been granted. See Honeycutt v. Baltimore Cnty., Md., No. JFM-06-0958, 2007 WL

1858691, at *3 (D.Md. June 18, 2007) (citing cases where there was no willfulness when the

employee’s FMLA request was granted), aff’d 278 F. App’x 292 (4th Cir. 2008).

In its Motion, Defendant argues Plaintiff seeks to hold Defendant liable for violations that

are barred by the two-year statute of limitations. (Doc. No. 26-1, p. 17). Plaintiff filed her initial

Complaint in state court on June 4, 2020, (Doc. No. 1-1, p. 2), and in her Amended Complaint,

she alleges Defendant’s conduct in violating the FMLA was willful. (Doc. No. 12, p. 32). Thus,

any alleged FMLA violation that occurred prior to June 4, 2018, is barred unless Plaintiff provides

evidence of a willful violation through “‘depositions, affidavits, answers to interrogatories, or

admissions on file.’” Bosse v. Baltimore Cnty., 692 F. Supp. 2d 574, 583 (D. Md. 2010) (quoting

Washington v. Purdue Farms, Inc., No. 4:07-3552-TLW-TER, 2009 WL 386926, at *8 (D.S.C.

Feb. 13, 2009)). Plaintiff has not provided any evidence to support a willful violation of the FMLA

and, when asked about evidence of willfulness at oral argument, Plaintiff’s attorney stated that

Defendant violated the FMLA willfully when it terminated Plaintiff’s employment immediately

upon her return from FMLA leave. (Tr. at 14:31-14:32). Argument by Plaintiff’s counsel is not

sufficient evidence of willfulness, particularly when Plaintiff was granted her FMLA leave request.

Thus, the two-year statute of limitations applies, and any alleged violations that occurred prior to

June 4, 2018, are time barred.

2. Interference

The FMLA prohibits employers from interfering with employees’ ability to exercise their

substantive rights under the FMLA, including the right to take “12 workweeks of leave during any

12-month period” for various medical and/or family reasons. 29 U.S.C. § 2612 (a)(1); § 2615 (a).

To make out an FMLA interference claim, an employee “must demonstrate that (1) [s]he is entitled

to an FMLA benefit; (2) h[er] employer interfered with the provision of that benefit; and (3) that

the interference caused harm.” Adams v. Anne Arundel Cnty. Pub. Schs., 789 F.3d 422, 427 (4th

Cir. 2015) (citing Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002) (internal

citations omitted)).

An employee is only entitled to an FMLA benefit if the employee is taking “FMLA-

qualifying leave” and provides adequate notice to the employer of the qualifying leave. See

Rhoads, 257 F.3d at 382-83 (discussing the employee’s FMLA obligations); Rodriguez v.

Smithfield Packing Co., 545 F. Supp. 2d 508, 515-16 (D.Md. 2008) (“The core requirements for

triggering an employer’s obligations [under the FMLA] are a serious health condition and

adequate communication, meaning a timely communication sufficient to put an employer on notice

that the protections of the Act may apply.” (emphasis in original)); Brushwood v. Wachovia Bank,

N.A., 520 F. App’x 154, 157 (4th Cir. 2013) (quotations omitted).

Although Plaintiff here insists she is asserting an interference claim, the only possible

allegations of interference the Court can glean are the allegations that Plaintiff’s “request for

FMLA leave for her son was denied in spite of several attempts to obtain it from late October 2018,

thought March 2019.” (Doc. No. 27, p. 15). Notably absent from this one-sentence allegation of

interference is any citation to the record, any proffer of evidence indicating Plaintiff was entitled

to such leave for her son, and any proffer of evidence or argument that Plaintiff was prejudiced by

the denial of the requested leave.

Regardless, even after a careful combing-through of the record, the Court is unable to find

any evidence of FMLA interference between October 2018 and March 2019. The only documented

evidence of Defendant denying Plaintiff’s requests for leave are automated emails summarizing

Plaintiff’s leave request, notifying Plaintiff that the leave request was denied, and listing “no

medical certification” as the reason for denial. See (Doc. No. 30-4, pp. 8-15). All other automated

emails either indicate that Plaintiff’s leave request was granted or that Plaintiff’s leave request was

successfully submitted. See (Doc. No. 30-4). Additionally, Plaintiff’s own evidence indicates she

was given extra time to submit the Department of Labor form necessary to approve her FMLA

request and that she was warned her FMLA request would be denied without the form. (Doc. No.

30-2, p. 6). Ultimately, the undisputed record evidence shows that Plaintiff was either not entitled

to FMLA leave for failure to submit proper certifications or that she was granted FMLA leave.

While approval of FMLA leave “does not automatically foreclose [an] interference claim,” there

is simply no evidence in the record that Defendant interfered with Plaintiff’s FMLA rights. See

Vannoy v. Fed. Rsrv. Bank of Richmond, 827 F.3d 296, 303 n.5 (4th Cir. 2016). To the contrary,

the record evidence indicates that Defendant, in at least one instance, took extra steps to ensure

that Plaintiff received any FMLA leave to which she was entitled. Defendant is accordingly

entitled to summary judgment on Plaintiff’s FMLA interference claims.

3. Retaliation

“Retaliation claims brought under the FMLA are analogous to those brought under Title

VII.” Adams, 789 F.3d at 429 (citing Laing v. Fed. Express Corp., 703 F.3d 713, 717 (4th Cir.

2013). Unless a plaintiff can offer direct and/or indirect evidence of discrimination, a plaintiff must

prove the following to establish a prima facie case of retaliation under the FMLA: “(1) she engaged

in protected activity; (2) her employer took an adverse employment action against her; and (3)

there was a causal link between the two events.” Adams, 789 F.3d at 429 (internal quotations

omitted). Then, if the defendant can provide a nondiscriminatory reason for the adverse

employment action, the plaintiff has an opportunity to show that the employer’s stated reason is

pretext. Id.

Here, the Court is satisfied that Plaintiff has pointed to evidence that sufficiently raises a

genuine dispute as to material fact. Plaintiff has presented evidence that she was granted

intermittent FMLA leave for the period beginning January 18, 2019 and ending July 17, 2019.

(Doc. No. 30-4, p. 33). Defendant’s evidence indicates Plaintiff was terminated shortly after

returning from what Plaintiff claims was FMLA leave in late March of 2019. See (Doc. No. 26-

6). Defendant has argued it had a non-discriminatory reason for Plaintiff’s termination, and

Plaintiff has argued Defendant’s stated reason is pretext. Thus, the question is one of credibility,

which is more appropriate for a jury. Accordingly, Defendant is not entitled to summary judgment

on the limited question of whether Plaintiff’s termination shortly after returning from alleged

FMLA leave in March 2019 was impermissible retaliation under the FMLA.13

IV. CONCLUSION

IT IS THEREFORE ORDERED that Plaintiff’s Motion to Supplement the Record, (Doc.

No. 30), is GRANTED. Defendant’s Motion for Summary Judgment, (Doc. No. 26), is GRANTED

IN PART and DENIED IN PART. The Court GRANTS summary judgment in favor of Defendant

13 The Court emphasizes that its conclusion about whether Plaintiff was meeting her employer’s legitimate

expectations at the time of discharge with respect to an ADA discrimination has no bearing on Plaintiff’s FMLA

retaliation claim. With the ADA discrimination claim, the Court concluded that Plaintiff could not satisfy her burden

in establishing an essential element of the prima facie case. See supra Section B.1. With FMLA retaliation however,

Plaintiff has satisfied her evidentiary burden with respect to the prima facie case, and the triable issue is whether

Defendant’s stated non-discriminatory reason for termination was pretext or not, which is a question only of

credibility.

as to Counts I, I, IU, and IV of Plaintiff's Amended Complaint. See (Doc. No. 13). The Court

DENIES summary judgment as to Count V, to the extent it asserts a claim of FMLA retaliation

for leave taken in March 2019. Given that this matter will proceed to trial on the limited issue of

FMLA retaliation, the parties shall submit their pre-trial submissions no later than July 7, 2021.

Docket call is at 9:00 AM on July 12, 2021, in Courtroom #5B of the Charles R. Jonas Federal

Building, located at 401 West Trade Street, Charlotte, North Carolina, 28202.

TAKE NOTICE that a pretrial conference will be held immediately following docket call

on July 12, 2021.

IT IS SO ORDERED.

Signed: June 25, 2021

Frank D. Whitney é

United States District Judge Ags

22