AJIT BOBBY SOOD v. TEMPUR SEALY INTERNATIONAL, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

AJIT “BOBBY” SOOD, )

)

Plaintiff, )

)

v. ) 1:19-cv-01248

)

TEMPUR SEALY INTERNATIONAL, )

INC., a Kentucky Corporation )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, Chief District Judge.

Before the court is the motion of Defendant Tempur Sealy

International, Inc. (“Temper Sealy”) to dismiss in part Plaintiff

Ajit “Bobby” Sood’s amended complaint pursuant to Federal Rule of

Civil Procedure 12(b)(6). (Doc. 18.) Sood brings eight separate

claims stemming from his employment with Tempur Sealy. Tempur

Sealy moves to dismiss claims three, seven, and eight, which allege

respectively: (1) hostile work environment based on disability

status in violation of the Americans with Disabilities Act (“ADA”),

42 U.S.C. § 12101, et seq.; (2) retaliation for filing a worker’s

compensation claim in violation of the Retaliatory Employment

Discrimination Act (“REDA”), N.C. Gen. Stat. § 95-240, et seq.

(2020); and (3) intentional infliction of emotional distress. For

the reasons set forth below, the motion will be granted in part

and denied in part.

I. BACKGROUND

Sood’s complaint contains the following factual allegations,

which are viewed in the light most favorable to him:1

On April 2, 2016, Sood interviewed for a job as a Senior

Product Engineer (“SPE”) with Tempur Sealy. (Doc. 17 ¶ 24.)

Shortly thereafter, he began working there as an independent

contractor. (Id.) On March 17, 2017, he was hired as a full-time

SPE employee and given a significant raise. (Id. ¶ 25.) In that

position, Sood reported to Cody Havaich. (Id. ¶ 27.)

On March 31, 2018, a Senior Quality Engineer (“SQE”) retired.

(Id.) Rather than hiring a replacement SQE, Tempur Sealy

transferred the SQE duties to Sood. (Id.) From that time on,

unlike other engineers, Sood was charged with performing the

functions of both the SPE and the SQE. (Id. ¶¶ 27, 28.) According

to Sood, he was given this increased workload based his Indian

national origin (id. ¶¶ 28, 29), whereas Caucasian and American

engineers were not assigned additional job duties (id.). In his

SQE role, Sood reported to Gary Ford. (Id. ¶ 27.)

Sood’s doubled workload caused him significant physical and

emotional stress, fatigue, and exhaustion. (Id. ¶ 30.) In

addition to his increased workload, he was required to attend

training, conferences, and seminars every Tuesday during his lunch

1 The facts set out here are those relevant only to the three claims

under consideration.

break. (Id. ¶ 35.) As had occurred throughout Sood’s employment,

his supervisor, Havaich, frequently called, texted, and emailed

regarding work outside of business hours, even when Sood was on

leave. (Id. ¶ 52.) When Sood did not reply or failed to answer

immediately, Havaich would get angry. (Id.)

On October 15, 2018, Sood went to Richard Herber, M.D., for

a medical exam. (Id. ¶ 39.) Doctor Herber determined that “Sood

may return to light duty immediately with the following

restrictions: Please reduce the workload stress for this patient.

He has a medical condition that has [sic] can be seriously impacted

and could worsen if patient’s stress is high.” (Id.) On October

24, 2018, Dr. Herber reiterated these recommendations and added

that, as part of Sood’s reduced workload, Sood should not be

required to lift items weighing over twenty pounds for thirty days.

(Id. ¶ 40.) He also advised that Tempur Sealy should “hire another

person to relieve the work load [sic] of both position [sic].”

(Id.)

After informing Havaich of Dr. Herber’s recommendations, and

despite Soods’s medical restrictions, Havaich had Sood unload,

pack, and lift heavy mattresses without assistance. (Id. ¶¶ 41,

42.) These duties were not part of Sood’s job description, Sood

had never been assigned such work previously, and no other

engineers were given similar duties. (Id. ¶¶ 135–37.) Due to

this work, Sood suffered additional injuries, including a wound

that required a tetanus shot and antibiotics. (Id. ¶ 43.)

On multiple occasions, Sood requested that Havaich provide

him with reasonable accommodations in the form of reduced

workloads. (Id. ¶ 31.) These requests were disregarded. (Id.)

In November 2018, Sood informed Havaich that he intended to

file a worker’s compensation claim relating to his injury, work,

and resulting illness. (Id. ¶ 45.) After receiving this news,

Havaich further increased Sood’s workload. (Id.)

On November 26, 2018, Dr. Herber recommended that Sood’s work

restrictions continue for an additional thirty days. (Id. ¶ 44.)

Yet, on November 30, 2018, Human Resources Manager Sarah East

reprimanded Sood for failing to perform his job duties, citing

errors on three specific projects. (Id. ¶ 46.) The allegations

in the reprimand were false, and the errors listed were

attributable to Havaich. (Id. ¶¶ 49, 50.) One of these errors

occurred in February 2018, over nine months earlier. (Id. ¶ 47.)

At some point after November 2018, Sood went on leave due to

his disabilities. (See id. at ¶ 53.) His doctor permitted him to

return to work on January 16, 2019. (Id.) On February 13, 2019,

Sood emailed East stating that, despite his recovery from work-

related injury and illness, he was still assigned job duties

intended for two employees and his stress level had not decreased.

(Id. ¶ 55.)

On March 6, 2019, Sood filed complaints with the Equal

Employment Opportunity Commission and the North Carolina

Department of Labor based on what he perceived as harassment and

hostility. (Id. ¶¶ 56, 57.) The next day he informed East that

he had filed those complaints. (Id.) On March 8, East put Sood

on a Performance Improvement Plan (“PIP”) which warned him of the

need to improve his performance as SQE. (Id. ¶¶ 58, 59.) The PIP

provided a sixty-day window for improvement. (Id. ¶ 66.) During

his 2018 performance evaluation, upon which the PIP was based,

there were no complaints about his performance as SPE. (Id. ¶

59.)

Sood met with Havaich and argued that the PIP was based on

false claims and was retaliatory. (Id. ¶ 60.) Havaich promised

to withdraw the PIP, but never did. (Id.; Doc. 20 at 10, n. 2.)

On March 20, 2019, Sood suffered another occupational injury

while tearing down used, hazardous mattresses at an event in Kansas

City. (Doc. 17 ¶ 61.) Against East’s directions, Havaich provided

no help to Sood during this event. (Id. ¶ 62.) Afterwards,

Havaich reprimanded, yelled, and cursed at Sood for his performance

at the event. (Id.) At the time, Sood was suffering

gastrointestinal symptoms and anxiety due to stress. (Id. ¶ 61.)

In an email dated March 23, 2019, Havaich stated that Sood

was “on pace” for his April 1 deliverables. (Id. ¶ 60; Doc. 17-

6.)

Four days later, on March 27, Dr. Herber ordered Sood to limit

himself to light duty. (Doc. 17 ¶ 63.) On March 28, Sood was

examined by a psychiatrist, who declared Sood fully disabled and

recommended that he be released from work due to work-related

illness. (Id.) Based on these recommendations, Sood did not work

from March 28, 2019, to June 10, 2019. (Id.) On June 13, 2019,

Sood was threatened with termination based on “poor performance.”

(Id. ¶ 64.) He was fired on June 28, 2019. (Id. ¶ 65.) From the

time East had issued the PIP, Sood had worked only 38 days. (Id.

¶ 66.)

II. ANALYSIS

A. Standard of Review

Federal Rule of Civil Procedure 8(a)(2) provides that a

complaint must contain “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P.

(8)(a)(2). Under Federal Rule of Civil Procedure 12(b)(6), “a

complaint must contain sufficient factual matter . . . to ‘state

a claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570, (2007)). A claim is plausible “when

the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. In considering a Rule 12(b)(6) motion,

a court “must accept as true all of the factual allegations

contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94

(2007) (per curiam), and all reasonable inferences must be drawn

in the plaintiff’s favor. Ibarra v. United States, 120 F.3d 472,

474 (4th Cir. 1997). “Rule 12(b)(6) protects against meritless

litigation by requiring sufficient factual allegation ‘to raise a

right to relief above the speculative level’ so as to ‘nudge[]

the[] claims across the line from conceivable to plausible.’”

Sauers v. Winston-Salem/Forsyth Cty. Bd. Of Educ., 179 F. Supp.

3d, 544, 55 (M.D.N.C. 2016) (alteration in original) (quoting

Twombly, 550 U.S. at 555). “[T]he complaint must ‘state[] a

plausible claim for relief’ that permit[s] the court to infer more

than the mere possibility of misconduct based upon ‘its judicial

experience and common sense.’” Coleman v. Md. Ct. App., 626 F.3d

187, 190 (4th Cir. 2010) (alterations in original) (quoting Iqbal,

556 U.S. at 679). Thus, mere legal conclusions are not accepted

as true, and “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”

Iqbal, 556 U.S. at 678.

B. Hostile Work Environment Under the ADA

The ADA mandates that “[n]o covered entity shall discriminate

against a qualified individual with a disability because of the

disability of such individual in regard to . . . discharge of

employees, employee compensation, job training, and other terms,

conditions, and privileges of employment.” 42 U.S.C. § 12112(a).

This language creates a cause of action for hostile work

environment. Fox v. Gen. Motors Corp., 247 F.3d 169, 175 (4th

Cir. 2001). The hostile work environment provisions of the ADA

are modeled after those of Title VII, and “courts have routinely

used Title VII precedent in ADA cases.” Id. at 176. To state a

claim for hostile work environment, a plaintiff must show (1) he

is a qualified individual with a disability; (2) he was subjected

to unwelcome harassment; (3) the harassment was based on his

disability; (4) the harassment was sufficiently severe or

pervasive to alter a term, condition, or privilege of employment;

and (5) some factual basis exists to impute liability for the

harassment to the employer. Id. at 177. “The words ‘hostile work

environment’ are not talismanic, for they are but a legal

conclusion; it is the alleged facts supporting those words,

construed liberally, which are the proper focus at the motion to

dismiss stage.” Bass v. E.I. DuPont de Nemours & Co., 324 F.3d

761, 765 (4th Cir. 2003).

Tempur Sealy argues that this claim should be dismissed

because Sood has failed to plausibly allege that the harassment

was based on his disability and that the harassment was objectively

severe or pervasive. (Doc. 19 at 6–8; Doc. 21 at 2–5.) Both

contentions will be addressed in turn.

1. “Based On” Plaintiff’s Disability

To demonstrate that harassment is “based on” a disability, a

plaintiff must show that “but for” the employee's disability, he

or she would not have been the victim of the discrimination.

Pueschel v. Peters, 577 F.3d 558, 565 (4th Cir. 2009) (citing

Jennings v. Univ. of N.C., 482 F.3d 686, 723 (4th Cir. 2007)); see

also Gentry v. E.W. Partners Club Mgmt. Co., 816 F.3d 228, 234–36

(4th Cir. 2016) (declining to extend Title VII’s “motivating

factor” standard to the ADA). “The critical issue for

consideration in the ‘because of’ inquiry is whether a disabled

plaintiff has been ‘exposed to disadvantageous terms or conditions

of employment to which [non-disabled employees] are not exposed.’”

Mason v. Wyeth, Inc., 183 Fed. App’x 353, 361 (4th Cir. 2006)

(alteration in original) (quoting Ocheltree v. Scollon Prods.,

Inc., 335 F.3d 325, 331 (4th Cir. 2003) (en banc)).

Sood points to the following facts to establish that he was

subjected to a hostile work environment: he was forced to perform

all duties of a co-worker who retired in addition to his own

preexisting duties (Doc. 17 ¶ 27); he was reprimanded based on

false allegations by East in November 2018 (id. ¶¶ 46, 49); he was

yelled and cursed at for failing to perform job duties that he was

not assigned (id. ¶ 62); his supervisors consistently ignored and

disregarded his doctor’s recommendations, including by forcing him

to lift heavy objects despite medical restrictions, about which he

complained (id. ¶¶ 41–42, 90); his supervisor called, texted, and

emailed him outside of work hours (id. ¶ 52); he did not receive

a lunch break each Tuesday because he was placed in mandatory

training from 11:30a.m. to 1:00 p.m. (id. ¶ 35); he was issued a

PIP without justification (id. ¶¶ 58–60); and he was terminated

without justification (id. ¶¶ 64, 65). Sood alleges that all of

the above actions “either contributed to or occurred in response

to [his] disabled status.” (Doc. 20 at 10.)

To the extent that Sood argues that Tempur Sealy’s actions

“contributed to” his disability, these claims fail. In a hostile

work environment claim, the ADA prohibits harassment that is based

on an individual’s disability, not harassment that causes a

disability. See 42 U.S.C. § 12112(a). With this in mind, at least

three of Sood’s allegations occurred before any claim of disability

arose in October 2018 (Doc. 17 ¶¶ 38–40), specifically: his

increased workload, which began in January 20182 (id. ¶ 27); his

supervisor contacting him outside of work hours, which occurred

“throughout [his] employment with Defendant” (id. ¶ 52); and his

mandatory Tuesday trainings, which began on or before July 17,

2018 (see Doc. 17-2). As these instances occurred before his

disability arose or was known, Tempur Sealy’s actions could not

have been based on Sood’s disability.

Of his remaining claims, Sood specifically alleges that

East’s reprimand on November 30, 2018, and his termination in June

2 Further, Sood himself claims that he was assigned these additional job

duties based on racial stereotypes, not based on his disability. (Id.

¶¶ 28–31; Doc. 20 at 10.)

2019 were based on his disability. (See Doc. 17 ¶¶ 46–50

(indicating that he was reprimanded for an error that occurred in

February 2018 “only after he suffered his work-related injury in

October 2018” and that the “reprimand was issued to create

groundwork to terminate Plaintiff because of his disabilities,

ethnicity, national origin, and ancestry”); Doc. 20 at 10.) There

are certain additional allegations that are sufficiently connected

to his disability that, for the purposes of the present motion,

they can be reasonably inferred to be based on his disability.

Specifically, Sood alleges that Tempur Sealy ignored his requests

for reasonable accommodation and that shortly after becoming aware

of his disability, it forced him to perform work that was outside

his job description, against medical recommendations, and to which

no other engineer was assigned. For each of these instances, Sood

has stated facts sufficient to support that the alleged harassment

would not have occurred but-for his being disabled. As such, he

has plausibly alleged that at least some of the harassment he

experienced was based on his disability.

2. Severe or Pervasive Harassment

“[P]laintiffs must clear a high bar in order to satisfy the

severe or pervasive test.” Equal Emp't Opportunity Comm'n v.

Sunbelt Rentals, Inc., 521 F.3d 306, 315–16 (4th Cir. 2008)

(distinguishing actionable “hostile work environment” from mere

“rude treatment by coworkers, ... callous behavior by one’s

supervisor, ... or a routine difference of opinion and personality

conflict with one's supervisor”) (internal citations omitted). A

“merely unpleasant working environment” does not suffice. Hopkins

v. Balt. Gas & Elec. Co., 77 F.3d 745, 753 (4th Cir. 1996). To

prevail, a plaintiff must establish that the work environment was

both subjectively and objectively hostile. Fox, 247 F.3d at 178.

In deciding whether an environment is objectively hostile, courts

consider the frequency and severity of the discriminatory conduct,

whether it unreasonably interfered with the plaintiff's work

performance, and whether it was physically threatening or

humiliating, or merely consisted of offensive utterances. Id.

Considering the totality of the circumstances, a hostile workplace

is one so “permeated with ‘discriminatory intimidation, ridicule,

and insult’” it “alter[s] the conditions of the victim's employment

and create[s] an abusive working environment.” Harris v. Forklift

Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB

v. Vinson, 477 U.S. 57, 64-65 (1986)). Ultimately, whether

“harassment [is] sufficiently severe or pervasive is

quintessentially a question of fact.” Beardsley v. Webb, 30 F.3d

524, 530 (4th Cir. 1994) (quoting Paroline v. Unisys Corp., 879

f.2d 100, 105 (4th Cir. 1989)).

Having considered the claims of harassment that are allegedly

based on Sood’s disability, it must be determined whether that

harassment was sufficiently severe or pervasive to constitute a

hostile work environment. Although Sood does not allege any facts

showing threats, humiliation, or offensive utterances based on his

disability, he plausibly alleges that the harassment he

experienced was frequent, pervasive, physically harmful, and

interfered with his ability to perform his job. See Bluey v.

Charles Cty., MD, No. CV DKC 19-3163, 2020 WL 5203334, at *10 (D.

Md. Sept. 1, 2020) (finding harassment to be pervasive and frequent

where, in a six-month period, a disabled employee was groundlessly

reprimanded, requests for reasonable accommodation were repeatedly

denied or ignored, the employee was forced to take unpaid leave,

and the employee was subjected to arbitrary medical exams and

documentation requirements); Fox, 247 F.3d at 179 (finding

harassment to be physically harmful where supervisors aggravated

an employee’s back injury by requiring him to perform tasks that

were too physically demanding).

Here, Sood alleges that in the six-month period after his

disability arose, he was repeatedly forced to perform job duties

against medical recommendations and, in doing so, sustained

multiple injuries. Despite repeated requests for reasonable

accommodation throughout that time, he alleges, his work situation

remained the same and caused his mental and physical health to

further deteriorate. Due to his deteriorating health, he was

placed on medical leave at least twice. In that same six-month

period, he was given at least three unwarranted reprimands, placed

on a PIP, and ultimately terminated in June 2019, less than three

weeks after he returned from medical leave. “These allegations,

all occurring within a sufficiently short period of time, are

sufficiently pervasive and serve to form a plausible claim for a

hostile work environment. If taken independently they may seem

like ‘isolated personnel decisions.’” Bluey, 2020 WL 5203334, at

*11 (quoting Pueschel, 577 F.3d at 566). And ordinarily these

allegations do not alone constitute an actionable hostile work

environment claim. However, when viewed collectively and

construed liberally (as the court must at the motion to dismiss

stage), the allegations plausibly state a claim for a hostile work

environment. Indeed, Sood need not make a prima facie case of

hostile work environment at the pleadings stage but merely state

a plausible claim. McCleary–Evans v. Md. Dep't of Transp., State

Highway Admin., 780 F.3d 582, 584 (4th Cir. 2015) (quoting

Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510, 515 (2002)). It

remains to be shown what facts Sood may be able to prove to

ultimately prevail on this claim.

Tempur Sealy’s motion to dismiss claim three of the amended

complaint will be denied.

C. REDA

N.C. Gen. Stat. § 95–241(a) (2020) provides that “[n]o person

shall discriminate or take any retaliatory action against an

employee because the employee in good faith does or threatens to

... [f]ile a claim or complaint, initiate any inquiry,

investigation, inspection, proceeding or other action, or testify

or provide information to any person with respect to ... Chapter

97 of the General Statutes,” the Workers’ Compensation Act, N.C.

Gen. Stat. § 97-1 (2020) et seq. “In order to state a claim under

REDA, a plaintiff must show (1) that he exercised his rights as

listed under N.C. Gen. Stat. § 95–241(a), (2) that he suffered an

adverse employment action, and (3) that the alleged retaliatory

action was taken because the employee exercised his rights under

N.C. Gen. Stat. § 95–241(a).” Wiley v. UPS, Inc., 594 S.E.2d 809,

811 (N.C. Ct. App. 2004) (citation omitted). An adverse action

includes “the discharge, suspension, demotion, retaliatory

relocation of an employee, or other adverse employment action taken

against an employee in the terms, conditions, privileges, and

benefits of employment.” N.C. Gen. Stat. § 95–240(2) (2020). “If

plaintiff presents a prima facie case of retaliatory

discrimination, then the burden shifts to the defendant to show

that he ‘would have taken the same unfavorable action in the

absence of the protected activity of the employee.’” UPS, Inc.,

594 S.E.2d at 811 (quoting N.C. Gen. Stat. § 95–241(b)).

In the present case, it is undisputed that Sood meets elements

one and two. The parties agree that he has properly exercised his

rights by filing a workers’ compensation claim and he suffered an

adverse employment action, at minimum, in the form of his

termination. Sood argues that he suffered additional adverse

employment actions based on the PIP, his supervisors’ unwarranted

reprimands, and the assignment of more difficult job duties. (Doc.

17 ¶¶ 134–39.) Defendants, relying primarily on Title VII

precedent relating to discrimination claims, contend that those

activities do not constitute adverse employment actions as a matter

of law. (Doc. 19 at 8, 9.)

Title VII, to which courts may refer for guidance in REDA

cases, Smith v. Comput. Task Grp., Inc., 568 F. Supp. 2d 603, 614

n.12 (M.D.N.C. 2008), applies a broader standard to its anti-

retaliation provision than that applicable to its anti-

discrimination provision. Strothers v. City of Laurel, MD, 895

F.3d 317, 327 (4th Cir. 2018). Unlike discriminatory actions,

retaliatory actions need not “affect the terms and conditions of

employment” to constitute an adverse employment action. Id.

Retaliatory actions need only be “materially adverse” such that

they “‘might have dissuaded a reasonable worker’ from engaging in

protected activity.” Id. (quoting Burlington N. & Santa Fe Ry.

Co. v. White, 548 U.S. 53, 62–64 (2006)). Under this broader

standard, at least some of the acts short of termination — in

particular, the PIP — may constitute adverse employment actions.

See, e.g., Monroe v. BellSouth Telecomm., Inc., No. Civ.

102CB00591, 2003 WL 22037720, at *5 (M.D.N.C. Aug. 15,

2003)(considering a warning from an HR Manager to be an adverse

employment action against an employee at least “[i]n that it was

one of the steps in the process to terminate” him); Bumgardner v.

Spotless Ent., 287 F. Supp. 2d 630, 636 (W.D.N.C. 2003) (finding

an employee suffered an adverse employment action where he was

“counseled” and warned by a supervisor that, if he called the EPA,

he would be fired); see also Johnson v. Trs. of Durham Tech. Cmty.

Coll., 535 S.E.2d 357, 362 (N.C. Ct. App. 2000) (noting the General

Assembly defined retaliatory action broadly). As such, Sood has

adequately alleged the first two elements of a REDA claim.

However, the parties disagree as to whether Sood has sufficiently

alleged that the adverse employment actions were taken because he

exercised his protected rights.

Evidence of retaliation in REDA cases is often

circumstantial. UPS, Inc., 594 S.E.2d at 811. However, “the

causal nexus between protected activity and retaliatory discharge

must be something more than speculation.” Id. In the absence of

direct evidence of retaliation, see, e.g., Tarrant v. Freeway Foods

of Greensboro, Inc., 593 S.E.2d 808, 813 (N.C. Ct. App. 2004),

North Carolina courts infer retaliation where there is a “close

temporal connection between the plaintiff instituting a charge”

and the adverse employment action. Shaffner v. Westinghouse Elec.

Corp., 398 S.E.2d 657, 659 (N.C. Ct. App. 1990); see also Wiley v.

United Parcel Serv., Inc., 102 F. Supp. 2d 643, 651 (M.D.N.C.

1999). While there is no precise time period required for a “close

temporal connection,” courts have found a time period of

approximately one month to be acceptable, see Martin v. Nationwide

Mut. Ins. Co., No. 1:99CV00956, 2001 WL 604192, at *9–10 (M.D.N.C.

Apr. 20, 2001), while ninety days has been deemed too long, see

Wilkerson v. Pilkington N. Am., Inc., 211 F. Supp. 2d 700, 707

(M.D.N.C. 2002) (citing Shaffner, 398 S.E.2d at 657). In addition

to temporal proximity, courts allow plaintiffs to introduce

reasonable inferences of a causal connection between the protected

activity and the termination. Smith, 568 F. Supp. 2d at 615–16.

Here, Tempur Sealy correctly points out that more than ninety

days elapsed between Sood’s filing of his workers’ compensation

claim and his termination. (Doc. 19 at 10.) Relying on Shaffner,

it argues that, as a matter of law, this time period is too long

to infer retaliation. However, the present case is

distinguishable. First, unlike the plaintiff in Shaffner, Sood

was not consistently working at the company throughout those ninety

days. In fact, he was on medically-required leave for most of

that time, having been found to be fully disabled. He ultimately

worked fewer than 40 days after the filing of his claim before he

was terminated. Second, and more importantly, he arguably suffered

his first adverse employment action — being placed on a PIP — only

one day after informing East of his workers’ compensation claim.

As discussed above, the PIP could be considered an adverse

employment action at least in that it was “one of the steps in the

process to terminate” Sood. See Monroe, 2003 WL 22037720, at *5.

As only one day had passed between informing East of the workers’

compensation claim and Sood’s placement on the PIP, the facts as

alleged make plausible a “close temporal connection” between the

exercise of Sood’s rights and the adverse employment action.

Further, even if Sood’s placement on a PIP did not in itself

constitute an adverse employment action, the timing of this action

can support a reasonable inference of a causal connection between

the claim and Sood’s ultimate termination. That he was put on the

PIP one day after he informed East of his claim and the PIP gave

him a window of only 60 days for improvement is some evidence of

a causal connection between his workers’ compensation claim and

his termination 38 working days later, such that dismissal on these

grounds would be inappropriate.

As Sood has plausibly alleged a REDA violation, the motion to

dismiss claim seven of the amended complaint will be denied.

D. Intentional Infliction of Emotional Distress

Tempur Sealy also moves to dismiss Sood’s claim for

intentional infliction of emotional distress. (Doc. 18.) Under

North Carolina law, the essential elements of this tort are “(1)

extreme and outrageous conduct, (2) which is intended to cause and

does cause (3) severe emotional distress to another.” Dickens v.

Puryear, 276 S.E.2d 325, 335 (N.C. 1981); accord Simmons v. Chemol

Corp., 528 S.E.2d 368, 371 (N.C. Ct. App. 2000). “The tort may

also exist where defendant's actions indicate a reckless

indifference to the likelihood that they will cause severe

emotional distress.” Dickens, 276 S.E.2d at 335. Here, Tempur

Sealy argues that none of the alleged conduct was sufficiently

extreme and outrageous to satisfy the first element and asserts

that Sood has not suffered severe emotional distress, as required

under the third element. (Doc. 19 at 11–14.)

“Whether or not conduct constitutes extreme and outrageous

behavior is initially a question of law for the court.” Simmons,

528 S.E.2d at 372. “Conduct is extreme and outrageous when it is

so outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.”

Smith–Price v. Charter Behav. Health Sys., 595 S.E.2d 778, 782

(N.C. Ct. App. 2004) (internal quotation marks and citation

omitted). “North Carolina courts rarely ‘find conduct in the

employment context that will rise to the level of outrageousness

necessary to support a claim of intentional infliction of emotional

distress.’” Smith, 568 F. Supp. 2d at 621 (quoting Thomas v. N.

Telecomm., Inc., 157 F. Supp. 2d 627, 635 (M.D.N.C. 2000)). The

employment context includes retaliatory termination cases arising

under REDA. Id.

Sood alleges that Tempur Sealy intentionally inflicted

emotional distress upon him when his supervisors assigned him an

unreasonable workload, ignored his disability-based medical

restrictions, discriminated against him based upon his protected

status, and unlawfully terminated him due to his disabilities,

race, ethnicity, and national origin. (Doc. 17 ¶ 142.) As a

matter of law, this conduct does not rise to the level of extreme

or outrageous conduct. Compare Dickens, 276 S.E.2d at 327, 336–

37 (finding alleged conduct extreme and outrageous when defendants

pointed pistol between plaintiff's eyes, beat him into semi-

consciousness with nightsticks, and threatened him with

castration), Brown v. Burlington Indus., Inc., 378 S.E.2d 232,

233–36 (N.C. Ct. App. 1989) (finding alleged conduct extreme and

outrageous when employee's supervisor made sexually explicit

remarks and gestures two to three times a week over an extended

period of time), and Hogan v. Forsyth Country Club Co., 340 S.E.2d

116, 121–22 (N.C. Ct. App. 1986) (finding alleged conduct extreme

and outrageous when supervisor engaged in unwanted sexual touching

of plaintiff, screamed profanities at her when she refused his

advances, threatened her with bodily injury, and pulled a knife on

her), with Atkins v. USF Dugan, Inc., 106 F. Supp. 2d 799, 810–11

(M.D.N.C. 1999) (finding conduct not extreme or outrageous when

employee was told he was “too old and sick” to handle his job and

was allegedly terminated in violation of federal and state

discrimination laws), Pardasani v. Rack Room Shoes Inc., 912 F.

Supp. 187, 192 (M.D.N.C. 1996) (finding conduct not extreme and

outrageous when plaintiff alleged he was given poor performance

evaluations, denied promotions available to others, excluded from

training, and finally terminated from his employment), Thomas, 157

F. Supp. 2d at 635 (finding alleged conduct not extreme and

outrageous where employer gave plaintiff excessive workload

compared to coworkers, filed paperwork late causing her to lose

disability benefits, and discharged her in retaliation for

exercising her rights under Title VII), and Hogan, 340 S.E.2d at

122–23 (finding conduct not extreme or outrageous when co-employee

screamed and shouted at plaintiff, called her names, and threw

menus at her).

As Sood has failed to establish the requisite extreme and

outrageous conduct, the court need not consider whether he has

plausibly alleged having suffered severe emotional distress.

Tempur Sealy’s motion to dismiss claim eight of the amended

complaint will therefore be granted.

III. CONCLUSION

For the reasons stated,

IT IS THEREFORE ORDERED that Tempur Sealy’s motion to dismiss

(Doc. 18) will be GRANTED IN PART and DENIED IN PART as follows:

the motion to dismiss claims three and seven will be DENIED, and

the motion to dismiss claim eight will be GRANTED and claim eight

is DISMISSED.

/s/ Thomas D. Schroeder

United States District Judge

September 21, 2020