# Baucom v. Novant Health, Inc.

> District Court, W.D. North Carolina · December 12, 2023

URL: https://www.frixlaw.com/law-library/cases/10260634

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** December 12, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CASE NO. 3:22-CV-00662-FDW-SCR
DENISE BAUCOM, )
)
Plaintiff, )
)
v. ) ORDER
)
NOVANT HEALTH, INC., )
)
Defendant. )
)

THIS MATTER is before the Court on Defendant’s Motion for Summary Judgment
(Doc. No. 24). This matter has been fully briefed, (Doc. Nos. 24, 26, 27, 28), and is ripe for
ruling. For the reasons set forth below, Defendant’s Motion is DENIED IN PART and
GRANTED IN PART.
I. BACKGROUND1
This lawsuit arises out of Denise Baucom’s (“Plaintiff”) employment as a Registered
Nurse (“RN”) in Novant Health’s (“Defendant”) Hospice Unit within Novant’s Presbyterian
Medical Center in Charlotte, North Carolina. The Hospice Unit provides end-of-life care to
patients which includes turning, repositioning, administering medications, bathing, providing
incontinence care, and tending to wounds. (Doc. No. 27-7, p. 1). Additionally, postmortem care
is provided to include cleaning the patient, removing all medical equipment from the patient,
placing the patient in a body bag, and transporting the patient to the morgue. (Id. at 2).
Defendant’s job description for the RN position includes occasionally lifting or carrying eleven
(11) to thirty (30) pounds. (Doc. No. 24-4, p. 12).

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.
The Hospice Unit previously was staffed with two RNs and one Certified Nursing
Assistant (“CNA”), but at all relevant times for purposes of this lawsuit the Hospice Unit was
only staffed with two RNs. (Id.). Therefore, the responsibilities typical of a CNA became the
responsibility of the RNs working. (Id.). Of significance, Defendant’s job description for a CNA
includes frequently lifting or carrying eleven (11) to twenty (20) pounds and occasionally lifting

or carrying twenty-one (21) to thirty (30) pounds. (Doc. No. 27-16, p. 4). All lifting, turning, or
repositioning is conducted at waist level using nursing techniques taught to promote proper body
mechanics and to ensure the safety of both the RN and the patient. (Doc. No. 27-7, p. 3; Doc. No.
27-13, p. 5).
Plaintiff began working for Defendant in April 2015, typically working the 7:00 p.m. to
7:00 a.m. shift. (Doc. No. 24-4). On March 9, 2020, Plaintiff had surgery on her rotator cuff and
remained out of work until July 2020. (Doc. No. 24-2, p. 3). In anticipation of returning to work,
Plaintiff’s doctor provided documentation for Defendant as to the restrictions placed on Plaintiff
which included: no lifting over two (2) pounds above shoulder level, ten (10) pounds from waist

to shoulder, and twenty (20) pounds floor to waist. (Doc. No. 24-3, p. 2). These restrictions were
initially set to last two months, with the doctor providing further guidance to Plaintiff after a
follow-up. (Id.). After Defendant reviewed Plaintiff’s restrictions, Defendant determined
Plaintiff could be accommodated. (Doc. No. 24-1, p. 4). Namely, Defendant “confirmed that
another [Hospice Unit] staff member could complete the task at hand rather than Plaintiff” and
“Plaintiff could also call for assistance in the event another [Hospice Unit] staff member could
not assist her in performing a duty she was unable to complete.” (Id.).
On July 27, 2020, Plaintiff returned to work for the 7:00 p.m. to 7:00 a.m. shift working
alongside fellow RN, Reba Shreve. (Doc. No. 27-7, p. 4). Ms. Shreve was not aware that
Plaintiff requested an accommodation nor that she was expected to provide additional assistance
as needed. (Doc. No. 27-7, p. 3). Nevertheless, Ms. Shreve attempted to turn the patients alone
without the help of Plaintiff but was unsuccessful. (Id.). Plaintiff and Ms. Shreve requested help
multiple times over the course of their shift, yet no help was provided until approximately one
hour before their shift ended. (Id.). The following day, Plaintiff contacted the Hartford Group—a

third-party responsible for part of Defendant’s accommodation process—and reported (1) the
events that transpired during Plaintiff’s shift, (2) the lack of accommodation in place, and (3) the
need for accommodation. (Doc. No. 27, p. 3).
On July 30, 2020, Plaintiff again saw her doctor and received a referral directly to the
Accommodations Department, which Plaintiff submitted to Employee Occupational Health.
(Doc. No. 27-8). To be accommodated, Plaintiff either wanted a staff member assigned to come
to the Hospice Unit to assist for rounds every two (2) hours or wanted to be assigned to a unit
that did not involve lifting in violation of her medical restrictions. (Doc. No. 27-15, p. 3).
Subsequently, due to concerns for her own safety and the safety of her patients, Plaintiff called

out from each shift Defendant scheduled her to work. (Doc. No. 27, p. 4). Plaintiff
communicated with her manager, Melissa Crank, that she had turned paperwork into the
Accommodations Department, (Doc. No. 27-2, p. 2–3); however, Ms. Crank sent Plaintiff a letter
on August 17, 2020, advising Plaintiff of the shifts for which she has called out and requesting
information on whether Plaintiff intended to return to work. (Doc. No. 24-3, p. 3). Concurrently,
the Hartford Group was investigating Plaintiff’s disability claim and approved Plaintiff for long-
term disability on August 19, 2020. (Doc. No. 27, p. 5). Plaintiff communicated her long-term
disability status to Ms. Crank the same day. (Doc. No. 27-2, p. 5). Ultimately, Plaintiff’s long-
term disability continued through the time at which Plaintiff was terminated.
On November 25, 2020, Plaintiff timely filed a charge for disability discrimination
(“Charge”) with the Equal Employment Opportunity Commission (“EEOC”). (Doc. No. 1–1).
On January 20, 2021, Plaintiff received a letter from Ms. Crank informing her that Plaintiff was
out on unapproved leave and would be terminated if she did not report to work on February 1,
2021. (Doc. No. 27-11, p. 2). On January 28, 2021, Plaintiff contacted Ms. Crank asking for

clarification due to her approved leave status with the Hartford Group. (Doc. No. 27-5, p. 2).
Plaintiff also communicated her interest in returning to work so long as her restrictions were
accommodated. (Id.). On February 4, 2021, Plaintiff received another letter from Ms. Crank
advising Plaintiff to disregard the January 20, 2021, letter due to “incorrect information.” (Doc.
No. 24-3, p. 4). Nevertheless, the February 4th letter informed Plaintiff that Defendant
categorized Plaintiff’s failure to return to work as “abandonment” and Plaintiff was being
terminated. (Id.).
Plaintiff filed a first amendment to the Charge on March 2, 2021, to include the
termination of her employment by Defendant, and a second amendment on October 4, 2021, to

add an additional claim for discrimination under the Americans with Disabilities Act, 42 U.S.C.
§ 12101 et. seq. (“ADA”). (Doc. No. 1–1, p. 3–4). Plaintiff claims she filed a third amendment
(“Third Amendment”) to her Charge on January 27, 2022, alleging racial discrimination by
Defendant for the first time. (Doc. No. 1–1, p. 5). The EEOC concluded its investigation and
issued a determination recommending conciliation on May 24, 2022. (Doc. No. 1, p. 4). When
conciliation failed, the EEOC issued a Conciliation Failure and Notice of Rights on September
14, 2022. (Doc. No. 1–1, p. 6).
Plaintiff filed this case in the United States District Court for the Western District of
North Carolina on December 12, 2022, asserting claims against Defendant for: discrimination
under the ADA; failure to accommodate under the ADA; race discrimination under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000 et. seq. (“Title VII”); race discrimination under
42 U.S.C. § 1981 (“§ 1981”); and wrongful discharge due to race discrimination under the North
Carolina Equal Employment Practices Act, N.C. GEN. STAT. § 143–422. (Doc. No. 1; Doc. No.
4). Defendant subsequently moved to Dismiss Plaintiff’s Title VII and § 1981 claims for failure

to state a claim, (Docs. Nos. 8, 9), which the Court granted. (Doc. No. 20). On August 28, 2023,
Defendant filed the instant Motion for Summary Judgment. (Doc. No. 24). After reviewing the
briefings by the parties and the exhibits submitted by the parties, 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)). “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. Also, the mere argued existence of a factual dispute
does not defeat an otherwise properly supported motion. Id. If the evidence is merely colorable,
or is not significantly probative, summary judgment is appropriate. Id. at 249-50. In the end, the
question posed by a summary judgment motion is whether the evidence as applied to the

governing legal rules “is so one-sided that one party must prevail as a matter of law.” Id. at 252.
III. ANALYSIS
A. Americans with Disabilities Act
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). Here, Plaintiff asserts Defendant
discriminated against her in violation of the ADA by terminating her employment due to her
disability and Defendant failed to provide her with reasonable accommodations. The Court will
accordingly evaluate the merits of an ADA discrimination claim and ADA failure to
accommodate claim in turn.
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 argues there is no evidence to support that Plaintiff was meeting her
employer’s legitimate expectations at the time of discharge and there are no circumstances
giving rise to an inference of discrimination. However, the Court disagrees. While Defendant
correctly cites cases indicating that an employee is not meeting an employer’s legitimate
expectations when it is the employer’s understanding that the employee is unwilling to return to
work, see Thomas v. City of Annapolis, Md., 851 F. App’x 341, 346 (4th Cir. 2021), the
evidence before this Court raises a genuine dispute as to whether Plaintiff intended to return to
work and what Defendant knew about that intent. Furthermore, the evidence indicates a dispute
as to the extent to which Plaintiff was on approved leave at the time of termination, and the
extent to which Defendant knew of the approved leave.
Assuming Plaintiff can establish the elements for a prima facie case of ADA
discrimination, the burden would shift to Defendant to provide evidence of a legitimate, non-
discriminatory reason for Plaintiff’s termination before shifting back to Plaintiff. Still, there is

also a genuine dispute of material fact as to whether abandonment constitutes a legitimate, non-
discriminatory justification for terminating Plaintiff under these circumstances or whether it is
merely pretext. Resolution of these disputes would require the Court to resolve the credibility of
witnesses and weigh the evidence, which is appropriate for a jury, not the Court. See Sedar v.
Reston Town Ctr. Prop., LLC, 988 F.3d 756, 761 (4th Cir. 2021) (“[C]ourts must . . . refrain
from weighing the evidence or making credibility determinations. A court improperly weighs the
evidence if it fails to credit evidence that contradicts its factual conclusions or fails to draw
reasonable inferences in the light most favorable to the nonmoving party.” (citations and
quotations omitted)). Accordingly, the Court DENIES Defendant’s Motion for Summary

Judgment as to Plaintiff’s claim for ADA discrimination.
2. Failure to Accommodate
Another form of prohibited ADA discrimination is an employer's failure to make
“reasonable accommodations to the known physical or mental limitations of an otherwise
qualified individual with a disability who is an ... employee.” 42 U.S.C. § 12112(b)(5)(A). As
defined by the ADA, “reasonable accommodations” can include “(A) making existing facilities
used by employees readily accessible to and usable by individuals with disabilities; and (B) job
restructuring, part-time or modified work schedules, reassignment to a vacant position, ...
appropriate adjustment or modifications of ... policies, ... and other similar accommodations....”
Id. § 12111(9). To survive summary judgment for an ADA failure to accommodate claim, a
plaintiff is required to show: (1) she was disabled; (2) the employer had notice of her disability;
(3) she could perform the essential functions of her position with a reasonable accommodation;
and (4) the employer refused to make such accommodation. Wilson v. Dollar Gen. Corp., 717
F.3d 337, 345 (4th Cir. 2013). Here, the parties dispute what constitutes an essential function of

Plaintiff’s RN position as well as whether Plaintiff is able to satisfy the third and fourth elements
outlined above.
The beginning of this inquiry lies with a determination of what the essential functions of
Plaintiff’s RN position were. A function is essential as long as it “bears more than a marginal
relationship to the job at issue.” Rohan v. Network Presentations, LLC, 375 F.3d 266, 279 (4th
Cir. 2004) (quoting Tyndall v. Nat’l Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994)).
The ADA provides that, in any determination of a position’s essential functions, “consideration
shall be given to the employer’s judgment.” 42 U.S.C. § 12111(8). Though the ADA identifies a
position’s written job description as relevant to the employer’s judgment, it does not posit that

description as dispositive. Rather, in performing the essential functions inquiry, a court must
“consult the full range of evidence bearing on the employer’s judgment, including the testimony
of senior officials and those familiar with the daily requirements of the job.” Elledge v. Lowe’s
Home Centers, LLC, 979 F.3d 1004, 1009 (4th Cir. 2020).
Here, Defendant contends that “any lifting that would have violated Plaintiff’s
restrictions was not an essential function of her position . . . [or] was a marginal function of the
position.” (Doc. No. 24-1, p. 8). However, the parties’ evidence reveals a genuine dispute as to
material facts that preclude the entry of judgment for the failure to accommodate claim. For
example, the evidence indicates a dispute as to the extent to which Plaintiff, as a RN, was also
responsible for the duties traditionally held by a CNA, which includes lifting in excess of
Plaintiff’s restrictions. Because this factual dispute must be resolved by a jury, the Court declines
to address other disputes as to material facts for the remaining elements outlines above.
Accordingly, Defendant’s Motion is DENIED as to Plaintiff’s claim for failure to accommodate.
B. Wrongful Discharge in Violation of North Carolina Public Policy (N.C. Gen. Stat. §
143-422.2)
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 a Title VII 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);
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); Hughes v. Bedsole, 48 F.3d. 1376 (4th Cir. 1995). “Absent direct evidence, the
elements of a prima facie case of discrimination under Title VII are: (1) membership in a
protected class; (2) satisfactory job performance; (3) adverse employment action; and (4)
different treatment from similarly situated employees outside the protected class. Coleman v.
Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (citing White v. BFI Waste Servs., LLC,
375 F.3d 28, 295 (4th Cir. 2004)).

Plaintiff has based her allegations completely upon a comparison to an employee from a
non-protected class. (Doc. No. 24-2, p. 10–11). Therefore, the validity of her prima facie case
depends upon whether that comparator is in fact similarly situated. Tex. Dep’t. of Comty. Affairs
v. Burdine, 450 U.S. 248, 258 (1981). Accordingly, Plaintiff is required to show that she and the
comparator are similar in all relevant respects including “evidence that the employees ‘dealt with
the same supervisor, [were] subject to the same standards and . . . engaged in the same conduct
without such differentiating or mitigating circumstances that would distinguish their conduct or

the employer’s treatment of them for it. Haywood v. Locke, 387 F. App’x 355, 359 (4th Cir.
2010) (quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)).
Here, Plaintiff identifies S.C., a white female employed as a Registered Nurse in the
Hospice Unit with Defendant, who was transferred to a different unit as a disability
accommodation following surgery. While Plaintiff is correct that both she and S.C. are similar in
many manners, aside from race, there is an important manner in which the two are different.
Namely, the restrictions of each based on their respective disabilities vary significantly.
Following Plaintiff’s rotator cuff surgery, Plaintiff was prohibited from lifting over two (2)
pounds above shoulder level, ten (10) pounds from waist to shoulder, and twenty (20) pounds

from floor to waist. (Doc. No. 24-3, p. 2). Comparatively, S.C. was prohibited from doing “any
pushing/pulling, bending, squatting, kneeling, gripping, twisting, or lifting over 25 pounds.”
(Doc. No. 24-4, p. 5–6). Therefore, under § 143-422.2, Plaintiff cannot establish a prima facie
case with respect to S.C. because multiple differentiating and mitigating circumstances remain.
Accordingly, Defendant’s Motion is GRANTED as to Plaintiff’s claim for wrongful discharge.
IV. CONCLUSION
IT IS THEREFORE ORDERED that Defendant’s Motion for Summary Judgment,
(Doc. No. 24), is:
1. DENIED IN PART, to the extent it seeks summary judgment on Plaintiff’s claim
for ADA discrimination;
2. DENIED IN PART, to the extent it seeks summary judgment on Plaintiffs claim
for ADA failure to accommodate;
3. GRANTED IN PART, to the extent it seeks summary judgment on Plaintiff's
claim for wrongful discharge.
IT IS FURTHER ORDERED that the parties shall TAKE NOTICE that trial is
scheduled to begin on Monday, January 8, 2024. (Doc. No. 15). The parties’ Pretrial
Submissions shall be due by December 18, 2023. Docket Call will take place at 9:01 a.m. on
January 8, 2024, and the Final Pretrial Conference will take place immediately following Docket
Call, in Courtroom #5B of the Charles R. Jonas Federal Building, located at 401 West Trade
Street, Charlotte, North Carolina, 28202.
IT IS SO ORDERED.

Frank D. Whitney é +3
United States District Judge ages

Signed: December 12, 2023

12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10260634. Public record. Not legal advice.