McKinney v. Cleveland County Board of Education

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

3:20-cv-221-MOC-DSC

WENDY MCKINNEY, )

)

Plaintiff, )

)

vs. )

)

CLEVELAND COUNTY BOARD ) ORDER

OF EDUCATION, MARK PATRICK, )

STEPHEN FISHER, JENNIFER )

WAMPLER, )

)

Defendants. )

___________________________________ )

THIS MATTER comes before the Court on a Motion for Summary Judgment by

Defendant Cleveland County Board of Education. (Doc. No. 35).

I. BACKGROUND

A. Procedural Background

This is an employment discrimination action brought by Plaintiff Wendy McKinney

against her former employer Cleveland County Schools (“CCS”). Plaintiff filed this action in

Gaston County Superior Court on March 17, 2020, naming the following persons and entities as

Defendants: (1) Cleveland County Schools/Board of Education (“the Board”); (2) Mark Patrick,

individually and in his official capacity as principal of North Shelby School (“NSS”); (3)

Stephen Fisher, in his official capacity as Cleveland County Schools Superintendent; and (4)

Jennifer Wampler, individually and in her official capacity as Assistant Superintendent of

Operational and Human Services, and Executive Director of Human Resources for the Cleveland

County Schools. Defendants removed the case to this Court on April 15, 2020, based on federal

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question jurisdiction, under 28 U.S.C. § 1331. (Doc. No. 1).

Plaintiff’s Amended Complaint alleged the following ten causes of actions under state

and federal law: (1) wrongful discharge against the Board under North Carolina law; (2)

intentional infliction of emotional distress against the Board and Patrick in his official and

individual capacities; (3) negligent infliction of emotional distress against the Board and Patrick

in his official and individual capacities; (4) violations of the North Carolina Wage and Hour Act

against the Board; (5) unlawful retaliation against the Board under three North Carolina

statutes—N.C. GEN. STAT. § 115C-335.5, N.C. GEN. STAT. § 168A-10; and N.C. GEN. STAT. §

126-85; (6) pregnancy discrimination and hostile work environment claims against the Board

under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq., (“Title VII”); (7)

discrimination and failure to provide reasonable accommodations claims against the Board under

the American with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.; (8) claims against the

Board under the Family Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq.; (9) various federal

statutory and U.S. Constitutional claims against all Defendants under 42 U.S.C. § 1983; and (10)

punitive damages for any claim that authorizes such damages against all Defendants. (Doc. No.

1-4).

On November 19, 2020, this Court granted Defendants’ motion to dismiss all claims

except the claims against the Defendant Cleveland County Schools/Board of Education under

Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”), and the

Family Medical Leave Act (“FMLA”). (Doc. No. 24 at 8). On November 19, 2021, Defendant

filed the pending summary judgment motion. (Doc. No. 35). Plaintiff has responded to the

summary judgment motion. (Doc. No. 37). Furthermore, the Court held a hearing on the motion

on January 20, 2022. The Court ordered supplemental briefing by the parties on February 4,

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2022. (Doc. No. 45). The parties have submitted their supplemental briefing. (Doc. Nos. 48, 49).

This matter is therefore ripe for disposition.

B. Factual Background

1. Statement of Facts

Defendant hired Plaintiff as a full-time employee in January 2003. In August of 2003,

Plaintiff became a media assistant and bus driver for the Cleveland County schools. In July 2013,

Plaintiff began working as a data manager at NSS. In 2015, she was promoted to bookkeeper.

(Doc. No. 1-4 at ¶¶ 1, 12).

During the 2016-2017 school year, Plaintiff had gastric bypass surgery and was out of

work for approximately six weeks. (McKinney Dep., Doc. No. 35-2 at 20).1 In December 2016,

Plaintiff had surgery related to a hernia and was out of work for approximately four weeks. (Id.

at 21). Upon her return, she worked half days for a brief period before resuming a full-time

schedule. (Id. at 20). Plaintiff requested and was granted FMLA leave for this surgery and her

recovery. (McKinney Dep. Ex. 1, Doc. No. 35-3 at 1, 3).

On or about August 5, 2017, the data manager left NSS, and Plaintiff thereafter

performed both jobs of bookkeeper and data manager (and helped to cover the receptionist’s

desk) during the 2017-2018 school year. (Wampler Dep., Doc. No. 35-5, at 41). Plaintiff

received only positive employment reviews and evaluations in her various roles from 2003

through 2017. (Id. at 41).

In June 2017, Principal Hodges left North Shelby and was replaced by Mark Patrick.

(Doc. No. 35-2 at 24). Plaintiff disagreed with Patrick’s policies related to bookkeeping and had

1 Record citations in this Order correlate with how exhibits have been filed on the Court’s

docket.

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conflict with Mr. Patrick as her supervisor. (Id. at 27). Plaintiff contacted CCS Assistant

Superintendent of Operational and Human Resources Jennifer Wampler about how Patrick

allegedly treated Plaintiff at work. This led to a meeting between Ms. Wampler’s assistant in the

Human Resources Department, Jennifer Walker, and Plaintiff and Patrick on November 27,

2018. (Id. at 27, 32–36).

During the 2017-2018 school year, Plaintiff had many absences from work that were not

covered by FMLA. In August, September, and October, Plaintiff missed work on nine occasions

for either a full or half day. (Doc. No. 35-2 at 39). In November 2017, Plaintiff was absent for

seven days, either full or half days, excluding the day of the meeting between Plaintiff, Patrick,

and Walker. (Id. at 39–40).

In February of 2018, Plaintiff’s mother became sick with cancer. Plaintiff was approved

for leave under the FMLA to take her mother to doctor appointments during the second semester

of the 2017-2018 school year. At this time, Plaintiff was instructed to prepare an unofficial

spreadsheet of her absences, including the reason(s) why she would be absent, who would be

substituting or covering for her during her absence(s), and stating whether the requested time off

was covered under FMLA. (Id. at 46–47). According to Plaintiff, other employees were not

similarly required to prepare a spreadsheet.

Plaintiff’s principal Mark Patrick told Plaintiff he would have to discuss Plaintiff’s leave

requests with vice principal Nancy Nation. (See Doc. No. 35-3 at 17–19). According to Plaintiff,

this was not the usual policy, practice, custom or usage for other employees seeking medical

leave, paid time off, or other approved absences. Plaintiff contends that these other employees

were allowed to find a substitute or coverage for their job during the needed absence, and they

were allowed to enter the requested time-off into the absence system provided by the County.

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According to Plaintiff, Defendant’s records show inconsistent and contradictory reasons

recorded for numerous absences and demonstrate a failure on Defendant’s part to determine and

designate approved FMLA leave, or to develop any written plan for tracking approved

intermittent FMLA leave.

On April 4, 2018, Plaintiff found out she was pregnant, and her physician told her that

her pregnancy may not be viable. Plaintiff’s physician classified the pregnancy as “high-risk”

due to Plaintiff’s age and health history. Plaintiff reported her dangerous medical condition to

Defendant. Throughout April 2018, Plaintiff experienced severe and disabling arm pain. She

went to the emergency room, but pain medications could not be administered due to her

pregnancy. A neurosurgeon diagnosed Plaintiff with a pinched nerve in her back but could not

order x-rays due to Plaintiff’s high-risk pregnancy. Acupuncture was attempted, but the

debilitating pain continued. Eventually the condition was diagnosed and surgically treated as a

ruptured disk (“back condition”). (Doc. No. 1-4, ¶¶ 27, 29).

In May 2018, a neurosurgeon wrote Plaintiff out of work due to the diagnosed back

condition and her related inability to use her left arm. The same month, Plaintiff started physical

therapy. (Id. ¶ 30). On or about May 21, 2018, Plaintiff applied for FMLA leave because of her

serious health condition involving a high-risk pregnancy. Defendant granted Plaintiff’s leave

request. When Plaintiff dropped off some paperwork at the school, principal Patrick told her she

was not allowed on campus while on a leave of absence. According to Plaintiff, this was contrary

to Defendant’s policy. Plaintiff received limited permission to be on campus.

On May 28, 2018, Plaintiff advised Patrick that she was hoping she could get the doctor

to let her come back to work “this week.” She still could not use her left hand to type without

excruciating pain, but she stated, “I really want to come back to work.” In response to Plaintiff’s

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stated intention to return to work, Patrick told a colleague that he wished he could say “you are

out of leave and you are of no use to me coming and sitting in an office crying.” (Doc. No. 40-4

at 26). According to Plaintiff, Defendant then devised a plan to terminate Plaintiff for excessive

(although approved) absences by means of a Conditional Evaluation process, but which could

not be effectuated until Plaintiff ran out of protected FMLA leave. (Doc. No. 40-4 at 26, 28, 30,

32, 32, 34, 36–42, 44, 46, 48, 54, 56, 58, 62, and 66).

As of July 2, 2018, Plaintiff’s leave under FMLA was exhausted. (McKinney Dep. Ex.

8 at 1). On June 29, 2018, Plaintiff’s neurosurgeon provided Plaintiff with a Fitness for Duty

Certification, stating that Plaintiff was able to return to work under restrictions from July 9,

2018, to October 9, 2018. (Doc. No. 37-14). Plaintiff was restricted from lifting more than 10

pounds due to her back condition. (Id.). In June 2018, NSS moved to a new building. Plaintiff

worked through the move to help set up the office at the new school while still subject to medical

restrictions to lift no more than ten pounds. Despite the known medical restrictions, Plaintiff was

instructed to move (and empty) boxes, as well as move and arrange extremely large files in file

cabinets that weighed well over ten pounds. (Doc. No. 35-2, p. 55 at 1–9).

On July 19, 2018, Plaintiff signed a “Conditional Evaluation” of her performance in the

position of “Bookkeeper” for the 2017-2018 school year. Principal Patrick signed it on July 16,

2018. The Conditional Evaluation stated in pertinent part:

When an employee’s annual evaluation includes two or more “needs

improvement” or “unsatisfactory” ratings, and the employee is not recommended

for dismissal at that time, the employee should receive a "conditional" evaluation

in no later than sixty (60) working days. A "conditional" evaluation may be

conducted at any time that an evaluator has concerns about an employee's

performance or conduct.

Being placed on a “conditional” evaluation means that the employee's job is in

jeopardy and that significant and sustained improvement must be demonstrated

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for continued employment. The evaluator is to consider whether to make a

recommendation for dismissal following completion of the conditional evaluation,

unless more immediate action is warranted.

(Doc. No. 35-3 at 31). The Conditional Evaluation explained in relevant part:

Plaintiff has missed 38.3 days this school year as of 05/29/18. This number is in

addition to days covered by FMLA and/or [leave of absence].

Plaintiff’s numerous absences had resulted in office duties and management

lacking efficiency and effectiveness. It has required other staff members to cover

her duties, which has impacted the daily operation of the school.

As a result, Plaintiff’s overall performance is being rated as “needing

improvement.”

(Id. at 34).

Plaintiff objected to the Conditional Evaluation and wrote a factual rebuttal to correct

numerous misstatements in the evaluation, challenging its findings and conclusions. According

to Plaintiff, Defendant never advised Plaintiff of the absences classified by Defendant as FMLA

leave, despite submitting the uniquely required “spreadsheet” on which she denoted the

intermittent dates she believed were covered by FMLA.

As a result of the July 2018 evaluation, Defendant placed Plaintiff on probation for 60

days, to be evaluated again on or before September 14, 2018. (Doc. No. 35-3, at 35–39).

Defendant did not offer Plaintiff a re-evaluation, nor did Defendant respond to her written

objections. Defendant did not give Plaintiff another opportunity to challenge the negative review

or Defendant’s classification of her absences, including the undisclosed calculations of approved

FMLA leave.

Plaintiff requested additional leave for the 2018-2019 school year and although she did

not qualify for FMLA leave, Defendant granted Plaintiff an additional 12 weeks of leave because

of her long years of service to the district. (McKinney Dep. Ex. 8 at 1; McKinney Dep. Ex. 12 at

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1). Plaintiff thus took leave sporadically starting in July 2018. (McKinney Dep. Ex. 8 at 1). On or

about August 17, 2018, when she was four to five months pregnant, Plaintiff tripped and fell

over a rolled-up rug left in the hallway at NSS. Plaintiff was constantly in pain and concerned

about her high-risk pregnancy, but she continued to try and be at work even while dealing with

these health issues. As a result of her disabilities and pregnancy, Plaintiff’s obstetrician had

written Plaintiff out of work. Plaintiff submitted her doctor’s notice on or about September 5,

2018, when her pain became too severe to continue working. (Doc. No. 1-4 at 15, ¶ 36).

On September 11, 2018, Plaintiff met with Assistant Superintendent Jennifer Wampler.

At this meeting, Wampler explained to Plaintiff that because Defendant had granted an

additional 12 weeks of discretionary leave to Plaintiff and that she had exhausted all legally

entitled leave, the administration would not recommend approving any additional discretionary

leave to Plaintiff beyond November 2018. (McKinney Dep. Ex. 8 at 1).

Plaintiff explained that she was trying to manage her high-risk pregnancy, suffering from

a ruptured disk in her back, and experiencing a recurrence of related severe carpal tunnel

syndrome. Wampler knew that additional leave from work would be required until Plaintiff

could deliver her baby in December and then undergo the ruptured disk surgery, which was

expected to resolve the residual carpal tunnel symptoms. Wampler told Plaintiff that, due to the

FMLA time taken in February for her mother, Plaintiff was technically about 40 hours short of

active workdays to qualify for additional FMLA leave. Plaintiff contends that the amount of this

alleged shortage is in disputed and elsewhere stated to have been 101 hours. Wampler told

Plaintiff that Defendant had agreed to grant Plaintiff as additional 12 weeks of additional unpaid

leave because Plaintiff had been with the school system for 15 years. Defendant categorized the

leave on its formal records as qualified FMLA leave. (Doc. No. 35-2, p. 57 at lines 4–5; Doc.

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No. 35-3 at 9). Wampler told Plaintiff that this leave would run out on some unspecified date in

November 2018. Wampler told Plaintiff she would then have no covered maternity leave, which

would then subject her to the school system’s “excessive absence policy.”

Wampler told Plaintiff she should submit a resignation or her employer would begin the

dismissal/termination process. Wampler did not discuss Plaintiff’s past approved or protected

absences nor performance as a factor in the dismissal. Wampler, however, also informed Plaintiff

that she could apply for short-term disability (“STD”) and directed her assistant to help Plaintiff

submit the forms to qualify for STD, which Plaintiff did immediately after the meeting.

Plaintiff’s request for short-term disability was approved following the requisite (60-day)

qualification period. Defendant classified Plaintiff as being on approved and qualified short-term

disability status, with her eligibility extending for one year, from November of 2018, until

November of 2019. (Doc. No. 35-3 at 1). On November 7, 2018, Plaintiff spoke again to

Wampler about an extension of unpaid leave, as Plaintiff could not receive invasive treatment for

her back condition while pregnant. Plaintiff would schedule her back surgeries at the earliest

possible dates after the baby was born. Plaintiff told Wampler that she would only need an

additional four to six weeks of approved leave (including the winter holidays), depending on the

expiration date for her existing approved 12-week absence. See (Doc. No. 40-4 at 75).

Wampler stated that she could not approve any additional, unpaid leave and told Plaintiff

that Wampler “would have to recommend dismissal due to her being in continued violation of

Board Policy” on “Excessive Absences.” Wampler told Plaintiff she could write a letter to

Defendant requesting an extended discretionary leave of absence.

On November 15, 2018, Plaintiff submitted her written request to the Board for

additional leave due to her high-risk pregnancy and ongoing (short-term) disability, asking the

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Board for a few weeks of approved, unpaid leave time, so she could recover from the birth of her

child and the back/neck surgeries. (Doc. No. 40-4 at 76). Plaintiff requested that she be allowed

return to work by January 2, 2019, with no restrictions.

On November 20, 2018, Wampler sent a memorandum to Defendant Cleveland County

Schools/Board of Education regarding Plaintiff’s request for an unpaid leave of absence. In the

memo, Wampler stated, “To my knowledge, the only leave requests that have been submitted

and approved by the board in the past, were requested for full, academic year, and the employees

were in good standing.” (Doc. No. 40-4 at 75). According to Plaintiff, Wampler failed to

distinguish the intermittent FMLA leave taken for Plaintiff’s mother’s cancer treatments from the

approved or protected leave resulting from Plaintiff’s known high-risk pregnancy, the reported

complications from Plaintiff’s ruptured disk, her work-related accident and injuries in helping

the school move locations over the summer, or the recognition of her existing qualification for

and receipt of short-term disability. Wampler characterized Plaintiff’s four-to-six-week extension

as unauthorized, unreasonable, and out of line with all past requests for leaves of absence

without pay that had been approved by the School Board.

On November 26, 2018, Defendant Cleveland County Schools/Board of Education met in

closed session and voted to deny the requested extension of Plaintiff’s leave of absence through

the end of the school year. See (Doc. No. 40-4 at 88). On November 27, 2018, Wampler called

Plaintiff to inform her that Defendants had denied her additional request for an unpaid leave of

absence due to her medical condition. By letter dated December 11, 2018, Superintendent Fisher

informed Plaintiff that her employment was terminated, that the School Board could not approve

her request because Plaintiff was out of leave time, and that such approval would contradict the

“excessive absence policy.” (Doc. No. 40-4 at 88). Board member Danny Lee Blanton testified

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in his deposition that the School Board’s vote in closed session to terminate Plaintiff’s

employment was conducted without consideration or discussion of Plaintiff's performance,

Board Policy 5250, Policy Code 7510.F, or any other policy regarding excessive or approved

absences. (Blanton Dep., Doc. No. 40-2, pp. 29, 35–38). The Board made was also not aware

that Plaintiff was on approved short-term disability. (Id., at 73–74; Miller Dep., Doc. No. 40-3, p.

87).

Plaintiff contends that the school district granted other employees extensions of requested

leaves of absence beyond the protected or pre-approved leave provided by the district.2

According to Plaintiff, on one instance, a male principal was given an extension because his wife

was having a difficult pregnancy. In another case, a transportation employee was given leave

shortly after being hired. Plaintiff argues that another employee was given an extension to start a

new business “to see if he would like it” before he resigned. Several other employees were

granted leave for medical reasons. Superintendent Fisher publicly stated in the School Board’s

meeting of December 14, 2018, that all of those employees had paid leave time left to use.

According to Plaintiff, this is disputed by Wampler’s admission that most employees were given

a full year of discretionary leave of absence.

Defendant presented evidence on summary judgment that Plaintiff’s absences as a

bookkeeper had required others to step in to do Plaintiff’s work. Sherry Champion, who is

Payroll Specialist in the Payroll Department of CCS, had to assume many of the duties that

would have been performed by Plaintiff. (Champion Aff., Doc. No. 35-7 ¶ 10). Champion had to

physically travel to North Shelby School in order to obtain the relevant payroll information and it

2 Plaintiff has not included any exhibits or attachments as evidence to support her anecdotal

evidence of those employees being granted such leaves of absence.

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would often take her more than one entire workday to enter all of the relevant information for

payroll. (Id. ¶¶ 11–12). This work was on top of Champion’s other regular duties and was a

“hardship” on her. (Id. ¶ 15). Michelle Brennan, who was an Accounts Payable/Purchasing Clerk

in the Purchasing Department at this time, likewise had to take on the work that would have been

done by Plaintiff. (Brennan Aff., Doc. No. 35-8 ¶¶ 8–9). In Plaintiff’s absence, Brennan had to

travel to the North Shelby School on multiple occasions to pay invoices, prepare monthly credit

card statements, order school supplies, receive cash from teachers and write out receipts to the

teachers, and review and reconcile North Shelby’s bank statements. (Id. ¶¶ 10–14). These tasks

were on top of her regular duties for CCS and required “considerable time.” (Id. ¶¶ 16–17).

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).

When determining whether a genuine issue has been raised, the court must construe all

inferences and ambiguities against the movant and in favor of the non-moving party. United

States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

The party seeking summary judgment has the initial burden of demonstrating that there is

no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the

movant has made this threshold demonstration, the non-moving party, to survive the motion for

summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather,

the non-moving party must demonstrate specific, material facts exist that give rise to a genuine

issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-

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movant’s position is insufficient to withstand the summary judgment motion. Anderson, 477

U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to

preclude granting the summary judgment motion. Dash v. Mayweather, 731 F.3d 303, 311 (4th

Cir. 2013). “Only disputes over facts that might affect the outcome of the suit under the

governing law will properly preclude the entry of summary judgment. Factual disputes that are

irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. Further, Rule 56

provides, in pertinent part:

A party asserting that a fact cannot be or is genuinely disputed must support the

assertion by:

(A) citing to particular parts of materials in the record, including depositions,

documents, electronically stored information, affidavits or declarations,

stipulations (including those made for purposes of the motion only), admissions,

interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a

genuine dispute, or that an adverse party cannot produce admissible evidence to

support the fact.

FED. R. CIV. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the

non-movant, the non-movant must show the existence of a factual dispute on every essential

element of his claim.

III. DISCUSSION

A. Defendant’s Title VII Pregnancy Discrimination Claim

Title VII of the Civil Rights Act of 1964, as amended, makes it unlawful for an employer

to “discharge any individual, or otherwise to discriminate against any individual with respect to

[her] compensation, terms, conditions or privileges of employment, because of such individual's

race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). In 1978, with the

passage of the Pregnancy Discrimination Act (“PDA”), Congress amended the definition section

of Title VII to include the following:

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The terms “because of sex” or “on the basis of sex” include, but are not limited to,

because of or on the basis of pregnancy, childbirth, or related medical conditions;

and women affected by pregnancy, childbirth, or related medical conditions shall

be treated the same for all employment-related purposes, including receipt of

benefits under fringe benefit programs, as other persons not so affected but

similar in their ability or inability to work, and nothing in section 2000e-2(h) of

this title shall be interpreted to permit otherwise.

42 U.S.C. § 2000e(k). Under the definition imposed by the PDA, therefore, “an employer is

obliged to ignore a woman’s pregnancy and ‘to treat the employee as well as it would have if she

were not pregnant.’” Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998)

(quoting Piraino v. Int’l Orientation Resources, Inc., 84 F.3d 270, 274 (7th Cir. 1996)). The PDA

does not require an employer to extend benefits to pregnant women that it does not also extend to

other employees, including taking excessive work absences. See Armindo v. Padlocker, Inc., 209

F.3d 1319, 1322 (11th Cir. 2000) (holding that the “PDA is not violated by an employer who

fires a pregnant employee for excessive absences, unless the employer overlooks the comparable

absences of non-pregnant employees”).

The PDA does not require an employer to provide special accommodations to its

pregnant employees. The PDA only ensures that pregnant employees are given the same

opportunities and benefits as nonpregnant employees who are similarly limited in their ability to

work. See Spivey v. Beverly Enters., Inc., 196 F.3d 1309, 1312 (11th Cir. 1999); see also Byrd v.

Lakeshore Hosp., 30 F.3d 1380, 1382 (11th Cir. 1994) (“It is today a settled principle that the

PDA and Title VII are violated when pregnant employees are denied privileges afforded non-

pregnant temporarily disabled employees.”). And if an employee’s pregnancy prevents her from

fulfilling the duties of her position, her employer is not obligated to treat her any differently than

it would treat a nonpregnant employee who is in the same position. See Armindo v. Padlocker,

Inc., 209 F.3d 1319, 1320 (11th Cir. 2000) (“[T]he Pregnancy Discrimination Act ... is not

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violated by an employer who fires an employee for excessive absences, even if those absences

were the result of the pregnancy, unless the employer overlooks the comparable absences of non-

pregnant employees.”); see also Geier v. Medtronic, Inc., 99 F.3d 238, 242 (7th Cir. 1996)

(“[T]he Pregnancy Discrimination Act does not require that employers make accommodations

for their pregnant workers; ‘employers can treat pregnant women as badly as they treat similarly

affected but nonpregnant employees.’” (quoting Troupe v. May Dep’t Stores Co., 20 F.3d 734,

738 (7th Cir. 1994)) (alterations omitted)).

Under Title VII, a plaintiff has two paths to demonstrate employment discrimination: (1)

the mixed-motive framework or (2) the pretext framework first set out in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973); Haynes v. Waste Connections, Inc., 922 F.3d 219, 223 (4th

Cir. 2019). To survive summary judgment under the mixed-motive framework, a plaintiff “must

produce direct evidence of a stated purpose to discriminate and/or [indirect] evidence of

sufficient probative force to reflect a genuine issue of material fact.” Rhoads v. F.D.I.C., 257

F.3d 373, 391 (4th Cir. 2001) (internal quotation omitted). That is, “[w]hat is required is

evidence of conduct or statements that both reflect directly the allegedly discriminatory attitude

and that bear directly on the contested employment action.” Id. at 391–92 (internal quotation

omitted).

Plaintiff alleges discrimination under Title VII on the basis “of her pregnancy or related

medical conditions.” However, there is no direct or indirect evidence of any discriminatory

attitude that bears on the contested employment action; thus, Plaintiff’s only available avenue is

the burden-shifting approach of McDonnell Douglas. Haynes, 922 F.3d at 223.

To make out a prima facie case of employment discrimination related to pregnancy under

Title VII, Plaintiff can only proceed “by showing that (1) [s]he is a member of a protected class;

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(2) [s]he suffered [an] adverse employment action; (3) [s]he was performing h[er] job duties at a

level that met h[er] employer’s legitimate expectations at the time of the adverse employment

action; and (4) the position remained open or was filled by similarly qualified applicants outside

the protected class.” Holland v. Wash. Homes, Inc., 487 F.3d 208, 214 (4th Cir. 2007); see also

Haynes, 922 F.3d at 223.

Under the McDonnell Douglas burden-shifting framework, the initial burden is on the

plaintiff to demonstrate each of these four elements; thus, she must show that she had

satisfactory job performance in the eyes of her employer. This element “does not require the

plaintiff to show that [s]he was a perfect or model employee. Rather, a plaintiff must show only

that [s]he . . . was meeting [her] employer’s legitimate expectations.” Hayes v. Waste

Connections, Inc., 922 F.3d 219, 225 (4th Cir. 2019). However, a plaintiff must show that she is

meeting the legitimate job expectations of her employer; thus, neither a plaintiff’s nor a

coworkers’ testimony can create a genuine issue of material fact on that point: “‘It is the

perception of the decision maker which is relevant, not the self-assessment of the plaintiff.’”

King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir. 2003) (quoting Evans v. Techs. Applications &

Serv. Co., 80 F.3d 954, 960–61 (4th Cir. 1996)).

On summary judgment, Defendant has presented evidence that Plaintiff was not meeting

Defendant’s legitimate performance expectations before she was fired. In the summer of 2018,

before Plaintiff’s termination in December 2018, Plaintiff received a “conditional” evaluation

from her supervisor, Principal Mark Patrick, and her overall performance was rated “as ‘needing

improvement.’” (McKinney Dep. Ex. 6, at 4). This conditional evaluation stated on its face that

“the employee’s job is in jeopardy.” (McKinney Dep. Ex. 6, at 1). The evaluation set out that

Plaintiff had missed 38.3 days of school over and above absences that were covered by the

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Family and Medical Leave Act or any leave of absence. (McKinney Dep. Ex. 6, at 4). The

evaluation stated that Plaintiff’s “numerous absences have resulted in office duties and

management lacking efficiency and effectiveness.” (Id.). The evaluation made clear that a “needs

improvement” rating meant that the “employee is not recommended for dismissal at [this] time,”

but the evaluation was a “conditional evaluation,” which was defined as one where “the

employee’s job is in jeopardy.” (McKinney Dep. Ex. 6, at 1). The evaluation set out that

“significant and sustained improvement must be demonstrated for continued employment.” (Id.).

The evaluation was signed by Principal Patrick on July 16, 2018, and by Plaintiff on July

19, 2018. Despite this conditional evaluation based upon her “numerous absences” and the need

for “significant and sustained improvement,” by December 1, 2018, which was part of the

academic year which started on July 1, Plaintiff had missed over 70 full days of work and 15

partial days. (McKinney Dep. Ex. 12, at 1). Given the lack of sustained improvement,

Superintendent Fisher sent Plaintiff a letter on December 14, 2018, notifying Plaintiff of her

termination. (Id.). Here, because Plaintiff has not shown that she was meeting Defendant’s

legitimate expectations—that is, she had numerous, unexcused absences—she has not made out a

prima facie case under Title VII. See Randa v. Garland, 855 F. Appx. 874 (4th Cir. 2021) (per

curiam) (holding that even though former AUSA had received a positive performance

evaluation, her termination did not constitute discrimination under Title VII because she failed to

satisfy the third element, because her supervising attorney had concluded that plaintiff was not a

competent employee).

Plaintiff argues in her response that there are genuine issues of material fact for her Title

VII claim because (1) there is “direct or probative indirect evidence of a ‘mixed-motive

discrimination’” and (2) because there is a genuine issue of material fact surrounding the

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“conditional evaluation” she received for the 2017-2018 school year. Plaintiff’s contentions fail.

As the mixed-motive framework under Title VII, a plaintiff “may establish a claim of

discrimination by demonstrating through direct or circumstantial evidence that sex . . .

discrimination motivated the employer’s adverse employment decision.” Hill v. Lockheed

Martin Logistics Mgmt., Inc., 354 F.3d 277, 284 (4th Cir. 2004), overruled in part on other

grounds, Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009). Plaintiff claims that the mere fact

that Defendant knew she was pregnant provides such evidence. While knowledge of a pregnancy

can satisfy the first element under the McDonnell Douglas burden shifting regime, Simpson v.

Amylin Pharms., Inc., 977 F. Supp. 2d 552, 563 n.7 (W.D.N.C. 2013), it is not enough under the

mixed-motive framework: “At a minimum, to pursue an mixed-motive case, a plaintiff must

demonstrate that a protected trait . . . actually played a role in the employer’s decision-making

process and had a determinative influence on the outcome.” Worden v. SunTrust Banks, Inc.,

549 F.3d 334, 342 n.7 (2008) (emphasis added) (internal quotation omitted). Mere knowledge of

the existence of Plaintiff’s pregnancy, without more, which is all that Plaintiff puts forward in

opposition to summary judgment, does not establish direct or circumstantial evidence that

Plaintiff’s pregnancy “actually played a role in the employer’s decision-making process and had

a determinative influence on the outcome.”

Next, as to Plaintiff’s argument under the McDonnell Douglas burden shifting approach,

Plaintiff’s asserts that the fact that she disagreed with the negative work evaluation and filed a

written objection to the evaluation “confirms the existence of a genuine issue of fact.” (Doc. No.

40 at 17). It is well settled, however, that an employee’s disagreement with a job evaluation does

not create an issue of material fact and that it is the employer’s perception that matters under

Title VII: “It is the ‘perception of the decision maker which is relevant, not the self-assessment

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of the plaintiff.’” Fry v. Rand Constr. Corp., 964 F.3d 239, 248 (4th. Cir. 2020), cert. denied, 141

S. Ct. 2595 (2021) (quoting DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998)). In

any event, the negative work evaluation stressed that the poor evaluation was based on Plaintiff’s

excessive absences. While Plaintiff disagreed with the negative work evaluation generally,

Plaintiff does not contest and has admitted that she in fact did have excessive absences.

Given that one of the four requirements to make out a prima facie case under the Title

VII burden shifting framework is that the employee must be performing her “job duties at a level

that met h[er] employer’s legitimate expectations at the time of the adverse employment action,”

Holland v. Wash. Homes Inc., 487 F.3d 208, 214 (4th Cir. 2007), Plaintiff’s argument that her

“conditional evaluation cannot properly be considered as a determinative factor in Plaintiff’s

prima facie case” is incorrect as a matter of law. “[T]he plaintiff’s perception of [her]self . . . is

not relevant. Similarly, that plaintiff’s coworkers may have thought that [she] did a good job, or

that [she] did not ‘deserve’ [to be discharged], is close to irrelevant.” DeJarnette v. Corning Inc.,

133 F.3d 293, 299 (4th Cir. 1998).

Plaintiff also argues that her conditional evaluation, which was primarily the work of the

principal of the school where she worked, does not satisfy Title VII’s requirements because the

principal was not the employer or decision-maker. This argument is incorrect as a matter of law.

As the Supreme Court has held, “[A] tangible employment action taken by the supervisor

becomes for Title VII purposes the act of the employer.” Burlington Indus., Inc. v. Ellerth, 524

U.S. 742, 762 (1998). Under North Carolina law, “the executive head of a school shall be called

‘principal.’” N.C. GEN. STAT. § 115C-5(7). The statutes also set out that “[e]very principal of a

public school shall make such reports as are required by the boards of education . . . .” N.C. GEN.

STAT. § 115C-288(b). The North Carolina courts have echoed this language: “By statute and

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under traditional common-law principles, then, the superintendent and principal are agents of the

board.” Trivette v. Yount, 735 S.E.2d 306, 309 (N.C. 2012) (quoting Abell v. Nash Cnty. Bd. of

Educ., 643 S.E.2d 566, 570 (N.C. Ct. App. 2007)). The school principal’s job evaluation of

Plaintiff was the act of Defendant under Title VII.

In sum, the fact that Plaintiff’s employer gave her a conditional evaluation in July 2018

defeats Plaintiff’s ability to maintain a prima facie case under Title VII because she was not

working at a level that met her employer’s legitimate job expectations. According to Plaintiff’s

2018 conditional evaluation, her most recent job performance evaluation, her job was in jeopardy

and “significant and sustained” improvement was necessary for her to keep it. Because Plaintiff

cannot maintain a prima facie case of her Title VII claim based on pregnancy discrimination,

Defendant is entitled to summary judgment as to this claim.

B. Plaintiff’s ADA Discrimination Claim

Under the ADA, employers are prohibited 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.’” Wilson v. Dollar General Corp., 717 F.3d 337, 345 (4th Cir. 2013)

(quoting 42 U.S.C. § 12111(8)). Defendant contends that Plaintiff’s claims under the ADA for

discrimination and lack of reasonable accommodation cannot proceed because she cannot show

that she is a “qualified individual” under the Act. Laird v. Fairfax Cnty., Va., 978 F.3d 887, 892

n.4 (4th Cir. 2020). For the following reasons, the Court agrees.

In Plaintiff’s response to the summary judgment motion, Plaintiff argues that she made a

request for reasonable accommodations under the ADA which “was adequate, and clearly put the

employer on notice.” (Doc. No. 40 at 19). However, as Defendant correctly points out,

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reasonable accommodations need only be made if a person is a “qualified individual” to begin

with. A qualified individual is someone who can perform the essential functions of the job.

Johnson v. Bd. of Trustees of Boundary Cnty. Sch. Dist. No. 101, 666 F.3d 561, 565 (9th Cir.

2011); accord Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1022 (4th Cir. 1997).

One of the most basic requirements for an employee is attendance: “An employee who

cannot meet the attendance requirements of the job at issue cannot be considered a ‘qualified’

individual protected by the ADA.” Tyndall v. Nat’l Educ. Ctrs., Inc. of Calif., 31 F.3d 209, 213

(4th Cir. 1994). “In addition to possessing the skills necessary to perform the job in question, an

employee must be willing and able to demonstrate these skills by coming to work on a regular

basis. . . . Therefore, a regular and reliable level of attendance is a necessary element of most

jobs.” Id. Employers possess the ability to establish the requisite essential functions of jobs for

their employees and “they do not need to change a job’s essential functions or split them across

multiple employees,” nor do they need to “require other employees to work harder or longer.”

Elledge v. Lowe’s Home Cntrs., LLC, 979 F.3d 1004, 1013 (4th Cir. 2020) (internal quotation

omitted). “An accommodation is reasonable ‘unless [the employer] can demonstrate that the

accommodation would impose an undue burden.’” Lamb v. Qualex, Inc., 33 Fed. Appx. 49, 59

(4th Cir. 2002) (quoting 42 U.S.C. § 12112(b)(5)(A)).

While the Fourth Circuit has held that regular and reliable attendance is usually an

essential function of the job, “[e]ven if a person is unable to perform the essential function of the

job in question, a court must nevertheless determine whether the person could do the job with

reasonable accommodation.” Martinson v. Kinney Shoe Corp., 104 F.3d 683, 687 (4th Cir. 1997)

(internal quotation omitted). However, the Fourth Circuit has also held that this requirement does

not encompass “an individual’s future ability to perform the essential functions of [her]

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position.” Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995) (emphasis added). Rather, the ADA

provisions “are formulated entirely in the present tense, framing the precise issue as whether an

individual ‘can’ (not ‘will be able to’) perform the job with reasonable accommodation. Nothing

in the text of the reasonable accommodation provision requires an employer to wait an indefinite

period for an accommodation to achieve its intended effect.” Id.

Here, the evidence shows on summary judgment that Plaintiff was excessively absent

from her job during the 2017-2018 school year as reflected in her conditional job evaluation, had

been granted the full measure of leave to which she was entitled under the FMLA by July 2,

2018, and was then granted an additional 12 weeks of unpaid leave by Defendant that was not

required under any statute and which ended in November 2018. Plaintiff asserts that she

informed her employer that she could come back to work full time in January 2019, after she had

her baby and recovered. When the 12 weeks of unpaid leave were about to expire, Plaintiff wrote

to Defendant Board: “I need six weeks from the birth of my son and two weeks from my neck

surgery to recover.” (McKinney Dep. Ex. 11 at 1). Plaintiff necessarily qualified the request,

however, with the caveat “[a]s long as there is [sic] no complications from the childbirth and

neck surgery.” (Id. at 1). About two weeks before the request to the Defendant board, Plaintiff

stated in an email to her school principal and Defendant board’s assistant superintendent that she

had another health issue. Plaintiff wrote: “I was sent to an orthopedic surgeon where I found out

I now also have a severe case of carpal tunnel. My left hand is completely crippled now and has

formed into a claw that I can only straighten with force and I have no feeling in either hand.”

(McKinney Dep. Ex. 10 at 1).

Here, Plaintiff’s stated intentions to return to work sometime in the future after her

prolonged absence does not raise a genuine issue of fact as to whether she could perform the

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essential duties of her position. Plaintiff has simply not shown that she could fulfill the essential

functions of her position at the time she was terminated. While Defendant could have been more

generous than the law requires and given Plaintiff even more time to return to work, including

until after she had her baby and recovered from her physical ailments, Defendant’s failure to do

so simply does not constitute a violation of the ADA.

In sum, given that Plaintiff cannot meet her burden of demonstrating that she “could do

the job with reasonable accommodation,” Martinson, 104 F.3d at 687, and given her extended

absences from her job, Plaintiff has failed to raise a genuine issue of disputed fact as to whether

she could perform the essential functions of her position for her reasonable accommodation

claim. Thus, Defendant is entitled to summary judgment as to Plaintiff’s ADA claim.

C. Plaintiff’s FMLA Claim

The FMLA “entitles eligible employees to take twelve weeks of leave during any twelve-

month period” for serious health problems of family members or themselves. Vannoy v. Fed.

Reserve Bank of Richmond, 827 F.3d 296, 301 (4th Cir. 2016). Because FMLA is not unlimited,

the “FMLA requires that employers provide an individual, written notice to affected employees

that an absence qualifies under the FMLA.” Id. (citing 29 C.F.R. § 825.300). Plaintiff alleged in

the Amended Complaint that she was terminated in violation of the FMLA because she

“compl[ied] with her doctor’s note” and “for taking time off that would have been covered under

the FMLA.” (Doc. No. 1-4 ¶ 65).

On summary judgment, Plaintiff has presented no evidence that she was terminated for

taking FMLA leave or that Plaintiff was not granted the full amount of FMLA leave to which she

was entitled. Here, the undisputed evidence shows that by July 2018 Plaintiff had exhausted her

FMLA leave. Then, in July 2018 Plaintiff requested and was granted an extra 12 weeks of

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discretionary leave. Defendant was not required by any law to give her this extra leave, but it did

so because of Plaintiff’s many years of service to the school district. Plaintiff then was partially

absent from her bookkeeping job from July 2018 to September 2018. She was completely absent

from her bookkeeping job from September 2018 until her termination in December 2018.

Between July 2, 2018, when she had exhausted her FMLA leave, and when Defendant

terminated her employment, Plaintiff had 70 full days and 15 partial days of absences. Defendant

had presented ample evidence on summary judgment that it terminated Plaintiff’s employment

because of her many absences, not because she took FMLA leave.

In response to Defendant’s summary judgment motion, Plaintiff contends that she

received no written notice of her FMLA absences. Plaintiff asserts that she was required to chart

her own absences and designate whether the leave was FMLA or otherwise. She further contends

that Defendant failed to properly determine, document, or inform Plaintiff of her FMLA rights,

and in the Condition Evaluation and the Board’s policy on Excessive Absences, discriminated

against her for taking FMLA and punished her for having exercised their rights under federal

law.

To the extent that Plaintiff is now alleging a violation as to lack of written notice under

the FMLA, Plaintiff has presented no evidence to show that she was prejudiced by any such

violation. See Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 90 (2002) (noting that a

plaintiff must show a “real impairment of [her] rights and resulting prejudice”). Here, Plaintiff

was informed in a meeting on September 11, 2018, with Defendant board’s assistant

superintendent that she had exhausted her FMLA leave and that, because of her other absences,

she did not qualify to any additional leave under the FMLA. While Plaintiff contends that it was

Defendant’s responsibility to keep track of and inform her of her FMLA leave rights, she neither

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argues nor presents any evidence that she was denied any FMLA leave to which she was entitled.

Moreover, as noted, she has not raised a genuine issue of a disputed fact as to whether Defendant

terminated her employment for taking FMLA leave, particularly given that Plaintiff was granted

12 weeks of additional leave that she was not entitled to under any law. In sum, the Court finds

that Defendant is entitled to summary judgment as to Plaintiff’s FMLA claim.

IV. CONCLUSION

For the reasons stated herein, the Court grants Defendant’s summary judgment motion.

Finally, the Court writes separately to note that Plaintiff, a long-time and otherwise well-

qualified employee of the Cleveland County school district, no doubt faced immense personal

and physical challenges that kept her out of work for long periods of time before she was fired.

She took care of her mother, who had cancer, and then she was faced with a difficult, high-risk

pregnancy and other medical conditions that resulted in many work absences. Arguably,

considering the many years of dedicated service Plaintiff gave to the Cleveland County school

district, the school district should have allowed her to take the rest of the 2018 calendar year off

and recover to full health, before requiring her to return to work in January 2019 after the

school’s Christmas break. Aside from the right to take 12 weeks of unpaid FMLA leave and an

employer’s sheer generosity, American workers have few options when they face a personal

health crisis that forces them out of work for long periods. This is unfortunate and can result in

especially cruel consequences for employees who have loyally served an employer for decades.

In this case, however, the Court is constrained to find that there are no genuine issues of disputed

fact as to whether Plaintiff’s ADA, FMLA, or Title VII rights were violated. Here, the

undisputed evidence shows that Defendant did not terminate Plaintiff’s employment because of

her pregnancy, because of an ADA disability, or because she took FMLA leave. Rather, the

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evidence shows that Defendant terminated Plaintiff's employment because of her excessive

absences. Therefore, Defendant is entitled to summary judgment on Plaintiff's Title VI, ADA,

and FMLA claims.

IT IS, THEREFORE, ORDERED that:

1. Defendant’s Motion for Summary Judgment, (Doc. No. 35), is GRANTED, and this

action is dismissed with prejudice.

Signed: March 25, 2022

Biever SS

Max O. Cogburn i &

United States District Judge ttget

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