CREECH v. LANE AND ASSOCIATES

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

IMANI CREECH, )

)

Plaintiff, )

)

v. ) 1:22-cv-852

)

LANE AND ASSOCIATES, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Before this court is Defendant’s Motion for Summary

Judgment, (Doc. 41). For the reasons stated herein, Defendant’s

motion will be granted.

I. FACTUAL BACKGROUND

Defendant Lane & Associates is a family dentistry practice

based in North Carolina. (Ex. 1, Lane & Associates Employee

Handbook (“Employee Handbook”) (Doc. 41-3) at 10–11.)1 Defendant

hired Plaintiff on June 17, 2020, to serve as a “Dental

Assistant II” in Defendant’s Durham office. (Heather Barefoot

Aff. (Doc. 43-1) at 3.)

1 All citations in this Memorandum Opinion and Order to

documents filed within the court refer to the page numbers

located at the bottom right-hand corner of the documents as they

appear on CM/ECF.

Defendant’s employee handbook states that its employees are

employed “at-will” and that their “employment may be terminated

with or without cause, and with or without notice at any time.”

(Ex. 1, Employee Handbook (Doc. 43-1) at 13.) Additionally, the

handbook outlines various “Attendance and Leave Policies.” (See

id. at 24–26.) One of these policies states that employees must

“inform [their] supervisor by telephone” as soon as they know

they “will be late to work or absent from work.” (Id. at 25.)

Employees who fail “to report to work for three (3) consecutive

days without proper notification will be deemed to have

voluntarily abandoned [their] job, and [their] employment will

be automatically terminated.” (Id.) Plaintiff signed a form

acknowledging these policies and agreeing “to adhere to” them at

the time she was hired. (See Ex. 4, Acknowledgement of Receipt

and Review of Employee Handbook (“Acknowledgement”) (Doc. 41-2)

at 53.)

On Wednesday, December 2, 2020, shortly after 10:00 a.m.,

Plaintiff texted two of her supervisors, Heather Barefoot

(Defendant’s Clinical Operations Supervisor) and Daphne Fuller

(one of Plaintiff’s direct supervisors), to inform them that she

was sick, that she was presently in the hospital, and that her

ailment may require surgery. (See Pl.’s Suppl. Pleading (Doc.

25) at 11, 15; see also Heather Barefoot Aff. (Doc. 41-3) at 1,

4.)

Later that day, at 1:20 PM, Plaintiff texted Daphne to

confirm she “will not be in [Thursday] or Friday.” (Pl.’s Suppl.

Pleading (Doc. 25) at 15.) Daphne responded: “I’ve communicated

with Heather and I will need a letter upon your return. I hope

you feel better!” (Id.)

Fifteen minutes later, at 1:35 PM, Heather texted

Plaintiff: “I am sorry you are sick and Daphne informed me you

are out until Friday.” (Id. at 12.) Plaintiff responded to

Heather that she “was definitely getting surgery [Thursday] or

Friday” to correct her “pancreatitis and gallstones.” (Id.)

Heather replied that she would “inform our HR department along

with the office th[at] you will be out of work.” (Id. at 13.)

Early Friday morning, December 4, at 7:41 AM, Daphne

checked back in with Plaintiff, texting her: “Hope all is well

with you!!” (Id. at 15.) Plaintiff responded twenty-four hours

later, on Saturday morning, December 5: “I’m coming along having

two surgeries back to back is very hard. Hopefully I get to go

home today . . . Thanks for checking in on me.” (Id. at 16.)

After Plaintiff’s text message to Daphne on Saturday morning,

December 5, neither Daphne, Heather, nor any member of

Defendant’s Human Resources (“HR”) team heard from Plaintiff

again until the following Friday, December 11, when Plaintiff

texted Daphne and Heather to inform them that she intended to

return to work on Monday, December 14, 2020. (Id. at 14, 16.)

In the intervening time, on Monday, December 7, at 9:40 AM,

Leigh-Anne Ennis, another of Plaintiff’s direct supervisors,

(Heather Barefoot Aff. (Doc. 41-3) at 4), sent a group text

message to Plaintiff, copying Heather and Daphne, which stated:

Good morning Imani. You have been out since Dec

02,2020 without letting me know why you would be out.

You have not reached out to update me on your status

and when you will return. I hope all is well but I do

need you to communicate with me in regard to whether

you are ok and when you will be returning please. I

only know that you may have been at the hospital for

a surgery because per staff you have been in

communication with them but I have yet to hear or

read anything from you. Have you communicated with

Human Resources about your status or Heather Barefoot

because you have not with myself or Daphne. Looking

forward to your response. Thank you.

(Ex. 8, Group Text Message Between Leigh-Anne, Heather, Daphne,

& Plaintiff (“Leigh-Anne Message”) (Doc. 41-3) at 63–64.) The

record in this case does not indicate that Plaintiff responded

to Leigh-Anne’s text message and this court finds as a fact that

Plaintiff did not respond to this text.

Plaintiff cites no evidence to suggest she responded to

Leigh-Anne’s text or that she communicated in other ways with

Daphne, Heather, Leigh-Anne, or members of Defendant’s HR

department while she was absent from work between December 7 and

December 9. However, Plaintiff did exchange a series of text

messages with another Lane & Associates employee, Candice Lane,

shortly after 5:00 PM on Monday, December 7. (Pl.’s Suppl.

Pleading (Doc. 25) at 9; Def.’s Mem. of Law in Supp. of its Mot.

for Summ. J. (“Def.’s Mem.”) (Doc. 42) at 5.) In these texts,

Candice wished Plaintiff well in her recovery from surgery and

Plaintiff responded, thanking Candice, and asked, “How was work

today[?]” (Pl.’s Suppl. Pleading (Doc. 25) at 9.) But Plaintiff

did not ask Candice to approve additional time off work beyond

the Friday, December 4, timeline she had explicitly communicated

to Heather and Daphne, (see id. at 12, 15), nor did Plaintiff

request that Candice pass along any messages to Heather, Daphne,

or anyone else about Plaintiff’s need for a prolonged absence.

(see id. at 9–10.)

After Plaintiff failed to show up to work and failed to

communicate with her supervisors on Monday, December 7, Tuesday,

December 8, and Wednesday, December 9, Defendant terminated

Plaintiff’s employment, (see Ex. 5, Notice of Employee

Seperation [sic] (“Separation Notice”) (Doc. 41-2) at 57),

citing the clause in the employee handbook that calls for the

automatic termination of employees who fail to report to work or

communicate with their supervisors for three consecutive days.

(See id.; see also Ex. 1, Employee Handbook (Doc. 41-3) at 25.)

II. PROCEDURAL HISTORY

Plaintiff filed a complaint with the Equal Employment

Opportunity Commission (“EEOC”) and received a right to sue

letter on May 6, 2022. (See Pl.’s Suppl. Pleading (Doc. 25) at

1.) Plaintiff, proceeding pro se, then initiated a lawsuit in

the United States District Court for the District of New Jersey

on August 1, 2022, alleging that her firing violated the

Americans with Disabilities Act of 1990 (“ADA”) and Title VII.

(See Doc. 1.) She filed an Amended Complaint on October 6, 2022.

(Am. Compl. (Doc. 9).) Plaintiff’s case was transferred to the

United States District Court for the Middle District of North

Carolina on October 7, 2022. (Doc. 11.)

On November 17, 2022, Defendant filed a Motion to Dismiss,

(Doc. 19), and on August 30, 2023, this court issued an order

requiring Plaintiff to file a supplemental pleading to address

deficiencies in her Amended Complaint, (Doc. 24). On September

21, 2023, Plaintiff filed a Supplemental Pleading. (Pl.’s Suppl.

Pleading (Doc. 25).) The next day, this court denied without

prejudice Defendant’s Motion to Dismiss. (Doc. 27.) Defendant

then filed an Answer to Plaintiff’s Amended Complaint, (Doc.

28), and the parties proceeded to discovery.

On April 26, 2024, Defendant filed a Motion to Compel

Discovery, (Doc. 38), alleging that Plaintiff had failed to

appear for her deposition, produce records, and respond fully to

written interrogatories, (id. at 1–7). Defendant also filed a

Motion for Summary Judgment on June 3, 2024, (Def.’s Mot. for

Summ. J. (“Def.’s Mot.”) (Doc. 41)), and a supporting memorandum

on June 5, 2024, (Def.’s Mem. (Doc. 42)). Plaintiff responded to

Defendant’s Motion for Summary Judgment on June 13, 2024. (Pl.’s

Resp. to Def.’s Mot. for Summ. J. (“Pl.’s Resp.”) (Doc. 44).)

Another court in this district issued a text order on June

17, 2024, granting in part Defendant’s Motion to Compel. (Docket

Entry 06/17/24.) After Plaintiff appeared for a deposition on

June 21, 2024, (see Ex. 2, Pl. Dep. (Doc. 47-1) at 5–142),

Defendant filed a Supplemental Memorandum in Support of its

Motion for Summary Judgment, (Def.’s Suppl. Mem. of Law in Supp.

of Its Mot. for Summ. J. (“Def.’s Suppl. Mem.”) (Doc. 47)). In

its Supplemental Memorandum, Defendant noted that Plaintiff

“failed to serve a copy of her response to Defendant’s written

discovery requests despite the Court’s June 17, 2024 Order and

undersigned counsel’s multiple requests for her responses at

Plaintiff’s deposition.” (Def.’s Suppl. Mem. (Doc. 47) at 2.)

Defendant contends that, “[t]hrough Plaintiff’s refusal to

participate in discovery, Defendant has been unfairly impeded in

its ability to defend the case.” (Id.)2 Plaintiff responded in

opposition to Defendant’s Supplemental Memorandum on July 17,

2024. (Pl.’s Opp’n to Suppl. Summ. of J. (“Pl.’s Suppl. Resp.”)

(Doc. 48).)

Defendant’s Motion for Summary Judgment, (Def.’s Mot. (Doc.

41)), is ripe and ready for review.

III. STANDARD OF REVIEW

Summary judgment is appropriate when “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); see Celotex

Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). This court's

summary judgment inquiry is whether the evidence “is so one-

sided that one party must prevail as a matter of law.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 251–252 (1986). The moving

party bears the initial burden of demonstrating “that there is

an absence of evidence to support the nonmoving party's

case.” Celotex Corp., 477 U.S. at 325. If the “moving party

discharges its burden . . . , the nonmoving party then must come

forward with specific facts showing that there is a genuine

2 Defendant’s frustration with Plaintiff’s delayed, and at

times deficient, participation in discovery is justified.

Plaintiff’s failure to abide by the rules and orders merits a

sanction. However, Plaintiff is proceeding pro se, the summary

judgment motion is ripe, and this court favors reaching the

merits.

issue for trial.” McLean v. Patten Cmtys., Inc., 332 F.3d 714,

718–19 (4th Cir. 2003) (citing Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)). “Conclusory or

speculative allegations do not suffice” to defeat

a motion for summary judgment. Thompson v. Potomac Elec. Power

Co., 312 F.3d 645, 649 (4th Cir. 2002). Summary judgment should

be granted “unless a reasonable jury could return a verdict for

the nonmoving party on the evidence presented.” McLean, 332 F.3d

at 719.

IV. ANALYSIS

Plaintiff’s Amended Complaint does not identify a

cognizable claim for relief,3 (see generally Am. Compl. (Doc.

9)), but her supplemental pleading specifies that she seeks

relief under the Americans with Disabilities Act of 1990

(“ADA”), (see Pl.’s Suppl. Pleading (Doc. 25) at 5). The ADA

forbids employers from discriminating against qualified

individuals on the basis of their disabilities. See 42 U.S.C. §

12112. Here, Plaintiff appears to allege that Defendant

discriminated against her on the basis of her disabilities when

3 Plaintiff invokes the Rehabilitation Act of 1973 in her

Amended Complaint, (see Am. Compl. (Doc. 9) at 3), but this Act

applies to the employment practices of federal agencies. See

Hannah P. v. Coats, 916 F.3d 327, 336 (4th Cir. 2019) (citing 29

U.S.C. § 794). Nothing in the record suggests that Defendant is

a federal agency or that Defendant receives funding from a

federal agency.

Defendant terminated her, (see Am. Compl. (Doc. 9) at 1), and

when Defendant denied her “reasonable accommodation request for

temporary leave,” (Pl.’s Suppl. Pleading (Doc. 25) at 5). Pro se

complaints are to be liberally construed, see Boag v.

MacDougall, 454 U.S. 364, 365 (1982), and in the light most

favorable to Plaintiff, this court considers Plaintiff’s

pleadings to assert ADA employment discrimination claims for (a)

wrongful discharge and (b) denial of reasonable accommodation.

Generally speaking, a plaintiff can establish claims of

employment discrimination through one of two avenues of proof:

(1) the production of direct and indirect evidence of

discrimination, or (2) the utilization of the McDonnell-Douglas

burden-shifting method of proof. See Rhoads v. F.D.I.C., 257

F.3d 373, 391–92 (4th Cir. 2001); see also Young v. United

Parcel Service, Inc., 575 U.S. 206, 228 (2015) (clarifying that

the burden-shifting method is, itself, another method for

showing “indirect evidence” of discrimination). A plaintiff

pursuing the first avenue must produce “direct evidence of [a

defendant’s] stated purpose to discriminate” or “indirect

evidence” that is “relevant to and sufficiently probative” of a

defendant’s discrimination. See Rhoads, 257 F.3d at 391 (cleaned

up) (citations omitted). In other words, the plaintiff must

produce “evidence of [the defendant’s] conduct or statements

that both reflect directly the alleged discriminatory attitude

and that bear directly on the contested employment decision.”

Id. at 391–92 (citation omitted).

Here, Plaintiff makes two attempts to produce direct

evidence of discrimination, but both attempts fall short of

establishing that Defendant demonstrated a “discriminatory

attitude,” see id., and otherwise fail to create a genuine issue

of material fact. First, in her Amended Complaint, Plaintiff

alludes to evidence of Defendant’s supposed discriminatory

attitude when she alleges: “[T]here were previous occasions that

happened at the job where my job was threatened because I fell

sick at the job and needed to go to urgent care.” (Am. Compl.

(Doc. 9) at 1.) When pressed by opposing counsel in her

deposition to expound on these “occasions” of discrimination,

Plaintiff testified that, on one occasion, her supervisors,

Daphne and Heather, had been initially hesitant to allow her to

take time off work for an illness, but eventually apologized and

allowed her to take the time. (See Ex. 2, Pl. Dep. (Doc. 47-1)

at 57; see also Pl.’s Suppl. Resp. (Doc. 48) at 5.) Plaintiff

does not explain how this behavior was discriminatory nor

clarify whether her illness on that occasion was related to an

ADA-recognized disability. (See Ex. 2, Pl. Dep. (Doc. 47-1) at

57.) Even accepting as true Plaintiff’s bare assertion that her

supervisors were hesitant to accept her request for time off on

a previous occasion, this fact does not “bear directly on the

contested employment decision[s]” at issue here, see Rhoads, 257

F.3d at 391–92, rather, the record shows that Plaintiff’s

supervisors promptly acquiesced to Plaintiff’s request for time

off between Wednesday, December 2, and Friday, December 4, 2020.

(See Pl.’s Suppl. Pleading (Doc. 25) at 11–16.)

Second, while Plaintiff neglected to raise this point in

her Amended Complaint, she appears to argue in a later-filed

response memorandum that the circumstances of her termination

evince discrimination by disparate treatment. (Pl.’s Suppl.

Resp. (Doc. 48) at 3.) Specifically, Plaintiff contends that on

previous occasions Defendant allowed other employees to miss

work for extended periods of time and, unlike Plaintiff,

Defendant did not terminate those employees. (Id.) However,

Plaintiff does not allege, nor marshal facts to show, that these

other employees also failed to adhere to the “Attendance and

Leave Policies” outlined in Defendant’s employee handbook. (Ex.

1, Employee Handbook (Doc. 41-3) at 24–26.) This omission4 is

fatal to Plaintiff’s attempt at showing disparate treatment

because Plaintiff was not fired only due to her absences from

work, but rather for her lack of communication with her

supervisors about those absences. (See Ex. 5, Separation Notice

(Doc. 41-2) at 57 (citing Defendant’s “No Show/No Call 3 days”

policy as reason for Plaintiff’s firing).) Thus, Plaintiff has

offered no evidence at summary judgment upon which this court,

or a reasonable jury, could find that Plaintiff faced disparate

treatment.

Because Plaintiff has not forecast direct or indirect

evidence of discrimination, the only other avenue of proof

available to her is the McDonnell-Douglas burden-shifting

4 The only evidence Plaintiff brings forward concerning a

coworker’s absence is a series of Facebook messages she

exchanged with a coworker, Elizabeth Lanning, in fall of 2020.

(See Pl.’s Suppl. Resp. (Doc. 48) at 11–12.) The context

surrounding these messages is difficult to decipher, but it

appears that Elizabeth missed work on October 5, 2020. (See id.

(On this date, Plaintiff messaged Elizabeth encouraging her to

“get plenty of rest and please take care of yourself.”).)

Plaintiff argues to this court that “Elizabeth Lanning . . . got

pardoned for her sickness of a week, missed work and did not get

terminated.” (Id. at 3.) However, absent further explanation

from Plaintiff, the Facebook messages — which, on their face,

only provide evidence of the simple fact that Elizabeth missed

work — do not support a finding of disparate treatment. As

discussed above, Plaintiff’s attempt to draw comparisons with

Elizabeth is misplaced, because Plaintiff was terminated not

because of her absences alone, but rather because of her failure

to communicate those absences, and she has provided no evidence

that Elizabeth is similarly situated in this way.

framework. See Rhoads, 257 F.3d at 391–92; see also Adkins v.

CSX Transp., Inc., 70 F.4th 785, 792–93 (4th Cir 2023). An

employment discrimination plaintiff proceeding through this

avenue of proof must first establish a prima facie case of

employment discrimination. See Rhoads, 257 F.3d at 392. If the

plaintiff is successful in establishing a prima facie case, the

burden then shifts to the employer to “to rebut the presumption

of [discrimination] by articulating a legitimate

[nondiscriminatory] reason for its actions.” Id. Finally, the

burden shifts back to the plaintiff to “demonstrate that the

proffered reason is a pre-text for forbidden [discrimination].”

Id. Although the burden of proof shifts at each stage, the

“plaintiff always bears the ultimate burden of persuading the

trier of fact that she was the victim of [discrimination].” Id.

Below, this court analyzes Plaintiff’s ADA claims for

wrongful discharge and failure to accommodate and finds that she

has failed to establish a prima facie case for either claim.

A. Wrongful Discharge

For ADA wrongful discharge, “a plaintiff establishes a

prima facie case if [she] demonstrates that (1) [she] is within

the ADA's protected class; (2) [she] was discharged; (3) at the

time of [her] discharge, [she] was performing the job at a level

that met [her] employer's legitimate expectations; and (4) [her]

discharge occurred under circumstances that raise a reasonable

inference of unlawful discrimination.” Haulbrook v. Michelin N.

Am., 252 F.3d 696, 702 (4th Cir. 2001); see also Rhoads, 257

F.3d at 387 n.11.

Regarding the first element, “[o]ne is within the ADA's

protected class if one is ‘a qualified individual with a

disability.’” Haulbrook, 252 F.3d at 702 (quoting 42 U.S.C. §

12112). The ADA defines “disability” as “a physical or mental

impairment that substantially limits one or more major life

activities.” 42 U.S.C. § 12102(1)(A). A “qualified individual”

is one “who, with or without reasonable accommodation, can

perform the essential functions of the [job].” Id. § 12111(8).

Plaintiff alleges she suffers from, among other

disabilities, “IBS, gastroduodenitis, pancreatitis, and PTSD,”

(Pl.’s Suppl. Pleading (Doc. 25) at 5). The Fourth Circuit

requires that litigants claiming to have a disability “produce

evidence” of that disability. See Reynolds v. Am. Nat’l Red

Cross, 701 F.3d 143, 150 (4th Cir. 2012). Here, Plaintiff met

her burden to “produce evidence” by attaching health records

that appear to confirm a diagnosis for IBS. (Doc. 26 at 2.)

These records also substantiate her visits to the hospital and

the abdominal surgeries that sparked her absences from work in

December 2020. (See Doc. 26 at 3–8.) Drawing reasonable

inferences in Plaintiff’s favor, it appears that she is an ADA-

qualified individual with at least one underlying disability,

IBS, thus establishing the first element of a prima facie case

for ADA wrongful discharge.

It is also uncontroverted that Plaintiff “was discharged”

from her role as a “Dental Assistant II.” (see Ex. 5, Separation

Notice (Doc. 41-2) at 57). Thus, Plaintiff has established

element two of a prima facie case. See Haulbrook, 252 F.3d at

702. However, Plaintiff has not met her burden to establish

elements three and four of a prima facie case.

Element Three: Defendant’s Legitimate Expectations

Defendant argues that at the time of Plaintiff’s firing on

December 9, 2020, Plaintiff “was not fulfilling Defendant’s

legitimate expectations.” (See Def.’s Mem. (Doc. 42) at 12

(referring to the third prima facie element outlined in

Haulbrook, 252 F.3d at 702).) Specifically, Defendant argues

Plaintiff “failed to notify Defendant of her absences on three

consecutive days and failed to respond to attempts to contact

her, despite clearly published written policies.” (Id.)

Defendant’s internal employment policies make clear that

employees must inform their supervisors “as soon as [they] know

[they] will be . . . absent from work.” (Ex. 1, Employee

Handbook (Doc. 41-3) at 25.) These policies also state that

“[f]ailure to report to work for three (3) consecutive days

without proper notification will be deemed to have voluntarily

abandoned your job, and your employment will be automatically

terminated.” (Id.) Plaintiff agreed to these policies when she

began her employment with Defendant. (See Ex. 4, Acknowledgement

(Doc. 41-2) at 53.)

Under Defendant’s policy, Plaintiff “was to report any

absences to [her] direct supervisors Daphne Fuller, Tatiana

Pacheco, and/or Leigh-Anne Ennis,” or to HR Director, Jim Houck,

or to Clinical Operations Supervisor, Heather Barefoot. (Heather

Barefoot Aff. (Doc. 41-3) at 4.) Defendant contends that

Plaintiff failed to appear at work and failed to report her

absences to the required individuals for three consecutive days

(Monday, December 7, 2020, through Wednesday, December 9, 2020).

(Def.’s Mem. (Doc. 42) at 12; Jim Houck Aff. (Doc. 41-2) at 5.)

Plaintiff counters that she “did in fact give [Defendant]

notice” of her absences, (Pl.’s Suppl. Resp. (Doc. 48) at 2),

and laments Defendant’s “rigid” policies, (Pl.’s Resp. (Doc. 44)

at 2), believing that her communication to Defendant about her

hospitalization and surgery was adequate to meet Defendant’s

expectations, (see Pl.’s Suppl. Resp. (Doc. 48) at 3).

It is not this court’s role to evaluate the propriety of

Defendant’s decision to discharge Plaintiff, so long as

Defendant has presented evidence that Plaintiff was terminated

for failing to meet Defendant’s clearly communicated, legitimate

expectations.5 Plaintiff has failed to establish that she was

meeting her employer’s clearly communicated, legitimate

expectations because she violated Defendant’s explicit report-

or-communicate policy. Plaintiff’s arguments, discussed below,

that she did adhere to Defendant’s communication policies are

unavailing and do not create a genuine issue of material fact.

First, Plaintiff argues that she communicated her absence

to two of her supervisors, Heather and Daphne, and that they

“assured [Plaintiff] they would let HR know [that Plaintiff]

would be out of the office.” (Pl.’s Resp. (Doc. 44) at 1.) But

the facts show that Plaintiff only communicated her absence

through December 4, and did not provide notice of her later

absences on December 7, 8, or 9. Indeed, both parties attached

screenshots showing that Plaintiff texted Daphne on Wednesday,

December 2, that she “will not be in tomorrow or Friday.” (Pl.’s

Suppl. Pleading (Doc. 25) at 15; Ex. 5, Text Messages Between

Pl. and Daphne Fuller (“Daphne Messages”) (Doc. 47-1) at 147.)

5 This court “does not sit as a kind of super-personnel

department weighing the prudence of employment decisions.”

DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998)

(citation omitted). Additionally, it is not this court’s role to

decide whether Defendant’s reason for firing Plaintiff “was

wise, fair, or even correct, ultimately, so long as it truly was

the reason for [the firing].” Id. (citation omitted).

Heather contacted Plaintiff to confirm that she would be absent

through December 4, (Pl.’s Suppl. Pleading (Doc. 25) at 12

(“Daphne informed me you are out until Friday.”)), and then

informed Plaintiff that she would pass along word to HR of

Plaintiff’s absence, (id. at 13 (“I will inform our HR

Department along with the office they [sic] you will be out of

work.”).)

While Plaintiff clearly communicated to her supervisors

that she would be absent through Friday, December 4, she never

followed up with her supervisors and never indicated that she

would require additional time off work the following week. Text

messages between Daphne and Heather reveal that on Sunday,

December 6, neither supervisor had received an update about

“when [Plaintiff] will return to work.” (See Ex. 6, Text

Messages Between Daphne Fuller and Heather Barefoot I

(“Daphne/Heather Messages I”) (Doc. 41-3) at 59.) The next day,

Monday, December 7, Plaintiff did not show up to work nor

communicate with her supervisors about her absence and, as a

result, Leigh-Anne Ennis (another of Plaintiff’s direct

supervisors) sent a group text message addressed to Plaintiff,

copying Heather and Daphne, in which Leigh-Anne instructed

Plaintiff to “update” her “status” and provide an expected

return date. (See Ex. 8, Leigh-Anne Message (Doc. 41-3) at 63–

64.) Plaintiff did not respond to Leigh-Anne’s text, despite the

fact that the text put Plaintiff on clear notice that her

supervisors viewed her as being out of compliance with

Defendant’s policies.

In sum, based on the record detailed above, it is

uncontroverted that Plaintiff communicated to her supervisors

that she would be absent through Friday, December 4, but it is

equally uncontroverted that she did not communicate with those

supervisors about her need for continued absences beyond that

date. As a result, when Plaintiff failed to report for work and

failed to communicate her absences between Monday, December 7,

and Wednesday, December 9, she was in clear violation of

Defendant’s policies.

Second, Plaintiff appears to argue that she was fulfilling

Defendant’s expectations because another Lane & Associates

employee, Candice Lane, was aware of Plaintiff’s absence from

work during the week of Monday, December 7. (See Pl.’s Resp.

(Doc. 44) at 1; Ex. 2, Pl. Dep. (Doc. 47-1) at 22 (“Candice knew

everything about the surgeries and everything.”).) Plaintiff’s

argument that Candice was aware of Plaintiff’s absences is

substantiated by contemporaneous text messages between the two

parties. (See Pl.’s Suppl. Pleading (Doc. 25) at 9–10 (showing

texts between Candice and Plaintiff in which Candice checks in

on Plaintiff’s recovery and wishes her well).) In Plaintiff’s

view, because “Candice was introduced as the acting head

assistant at the time,” (Pl.’s Resp. (Doc. 44) at 1), the fact

that Candice was aware of Plaintiff’s absence during the week of

December 7 should have been enough to satisfy Defendant’s policy

requiring employees to inform their “supervisors” of absences,

(see id.; see also Ex. 1, Employee Handbook (Doc. 41-3) at 25

(outlining Defendant’s communication policy)).

This argument is unavailing for several reasons. First,

Defendant attached multiple affidavits to its Motion for Summary

Judgment which make clear that Candice was “not one of

Plaintiff’s supervisors upon which proper of notice of absences

could be given.” (Jim Houck Aff. (Doc. 41-2) at 5; Heather

Barefoot Aff. (Doc. 41-3) at 4.) To the extent that Plaintiff

had a subjective belief that communicating with Candice was

sufficient to satisfy Defendant’s policies, this does not create

a genuine issue of material fact regarding Defendant’s actual,

legitimate expectations for communication at the time. Second,

on Monday morning, December 7, Leigh-Anne put Plaintiff on

explicit notice that she was out of compliance with Defendant’s

communication policies and instructed her to contact either HR,

Heather, Daphne, or Leigh-Anne to update her “status.” (See Ex.

8, Leigh-Anne Message (Doc. 41-3) at 63–64.) Despite that clear

indication of expectations, Plaintiff did not respond to Leigh-

Anne’s text or take any other corrective action. At summary

judgment, Plaintiff offers no explanation to this court as to

why she neglected to respond to Leigh-Anne’s text,6 or why, when

Plaintiff exchanged messages with Candice later that day, she

neglected to ask Candice to relay a message to Leigh-Anne,

Daphne, Heather, or HR about Plaintiff’s need for a prolonged

absence.

In sum, Defendant has shown at summary judgment that

Defendant did not consider Candice to be a supervisor to whom

Plaintiff could communicate absences and that even if Plaintiff

believed at the time that Candice was a proper person to notify,

Leigh-Anne’s Monday, December 7, text message to Plaintiff put

Plaintiff on notice that she was out of compliance with

Defendant’s policies. Despite that notice, Plaintiff failed to

take corrective action.

Finally, Plaintiff argues that she was fulfilling

Defendant’s expectations at the time of her firing because

Defendant informed her that she needed only to provide a

6 Plaintiff states that she had never met Leigh-Anne and

that Leigh-Anne “was never introduced to me as a supervisor or

manager.” (Pl.’s Resp. (Doc. 44) at 1.) However, even accepting

this as true, it does not explain why Plaintiff would fail to

respond to a group text message that also included Daphne and

Heather as co-recipients — the same supervisors Plaintiff had

communicated with about her absences the week prior.

doctor’s note explaining her absences upon her return to work —

something she was prepared to do, and would have done, had she

not been fired. (See Pl.’s Suppl. Resp. (Doc. 48) at 3; see also

Ex. 7, Duke Health Doctor’s Note (Doc. 47-1) at 153.)

Plaintiff’s argument appears to be in reference to a text

message Daphne sent to Plaintiff on Wednesday, December 2.

Daphne, responding to Plaintiff’s text stating she “will not be

in tomorrow or Friday,” sent the following message: “I’ve

communicated with Heather and I will need a letter upon your

return. I hope you feel better!” (Pl.’s Suppl. Pleading (Doc.

25) at 15.) Nothing in Daphne’s text message suggests that her

instruction to Plaintiff to provide “a letter upon return” was

meant to stand in place of Defendant’s requirement that

employees “must immediately inform [their] supervisor by

telephone” of any absences. (Ex. 1, Employee Handbook (Doc. 41-

3) at 25.) At the time that Daphne referenced “a letter upon

return,” Plaintiff had only communicated to Daphne that she

would be absent through Friday, December 4. (Pl.’s Suppl.

Pleading (Doc. 25) at 15.) Even if Plaintiff temporarily

believed that she had received carte blanche from Daphne to be

absent for as long as necessary, so long as she provided a “a

letter upon return,” this belief was no longer reasonable after

Leigh-Anne sent the text message to Plaintiff on the morning of

Monday, December 7, notifying Plaintiff that she was out of

compliance with Defendant’s communication policies.

At bottom, none of Plaintiff’s arguments that “[she] was

performing the job at a level that met [her] employer's

legitimate expectations” at “the time of [her] discharge,” see

Haulbrook, 252 F.3d at 702, are sufficient to create a genuine

dispute of material fact. Instead, Defendant has shown at

summary judgment that Plaintiff’s failure to report to work and

failure to communicate with her supervisors about her absences

for three consecutive days fell short of Defendant’s “legitimate

expectations” for employee communication. As a result, Plaintiff

has failed to establish the third element of a prima facie case

for wrongful discharge.

Element Four: Reasonable Inference of Unlawful Discrimination

For many of the same reasons that Plaintiff’s conduct

failed to meet the legitimate expectations of her employer, the

circumstances of Plaintiff’s discharge also do not “raise a

reasonable inference of unlawful discrimination.” See Haulbrook,

252 F.3d at 702. Rather, as discussed above, the record before

this court reveals that after Plaintiff initially communicated

to her supervisors that she would be absent through Friday,

December 4, she provided no further updates nor communication

about her continued absences from work the following week. (See

Ex. 6, Daphne/Heather Messages I (Doc. 41-3) at 59; Ex. 7, Text

Messages Between Daphne Fuller and Heather Barefoot II

(“Daphne/Heather Messages II”) (Doc. 41-3) at 61.)

On Monday morning, December 7, Plaintiff’s supervisors

noted her absence, (see id.), and texted Plaintiff informing her

that she needed to update her status, (see Ex. 8, Leigh-Anne

Message, (Doc. 41-3) at 63). After a third consecutive day in

which Plaintiff missed work and did not communicate with her

supervisors, those supervisors notified Defendant’s HR Director,

Jim Houck, about Plaintiff’s failure to comply with Defendant’s

“Attendance and Leave Policies,” (see Ex. 9, Text Messages

Between Daphne Fuller and Heather Barefoot III (“Daphne/Heather

Messages III”) (Doc. 41-3) at 66; Ex. 10, Heather Barefoot Email

to Jim Houck (Doc. 41-3) at 68), and initiated the process of

firing Plaintiff, (see Ex. 5, Separation Notice (Doc. 41-2) at

57). Ultimately, Defendant fired Plaintiff, citing the clause in

Defendant’s employee handbook that calls for the automatic

termination of employees who fail to report to work or

communicate with their supervisors for three consecutive days.

(See id.; see also Ex. 1, Employee Handbook (Doc. 41-3) at 25.)

In sum, the circumstances of Plaintiff’s discharge make

clear that Plaintiff was fired for violating Defendant’s

“Attendance and Leave Policies” and not on account of unlawful

discrimination.7 Therefore, Plaintiff has failed to establish the

fourth element of a prima facie case.8

B. Failure to Accommodate9

“To establish a prima facie case for failure to

accommodate, [a plaintiff] must show: ‘(1) that she was an

individual who had a disability within the meaning of the

7 This finding is further supported by the fact that

Plaintiff’s supervisors sent her pleasant text messages, wished

Plaintiff well, and approved of her absence when she

communicated her need to miss work through Friday, December 4.

(See Pl.’s Suppl. Pleading (Doc. 25) at 11 (“I am sorry you are

sick . . .”); id. at 13 (“Hopefully all will go easy and I wish

you a speedy recovery . . . Good luck!!”); id. at 15 (“I hope

you feel better! . . . Hope all is well with you!!”); id. at 16

(“Take it easy.”).) Plaintiff’s trouble began not when she fell

ill, but rather when she stopped communicating with her

supervisors about her need for additional time off work.

8 Even assuming Plaintiff has established a prima facie case

of wrongful discharge, her claim would still fail at the next

stages of the McDonnell-Douglas framework. See Rhoads, 257 F.3d

at 392. That is, Defendant put forward a legitimate,

nondiscriminatory reason for Plaintiff’s firing — her failure to

show up to work or notify her supervisors for three consecutive

days — that is fully consistent with its established policies.

With the burden shifting back to Plaintiff at the third stage of

McDonnell-Douglas, Plaintiff has not forecast any evidence to

“demonstrate that the proffered reason [for her firing] is a

pre-text for forbidden [discrimination].” Id.

9 It is not clear that the McDonnell-Douglas burden-shifting

framework applies to ADA reasonable accommodation claims. See,

e.g., Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 572–

82 (4th Cir. 2015)(invoking the McDonnell-Douglas framework at

summary judgment to analyze a plaintiff’s ADA wrongful discharge

and retaliation claims but evaluating only the prima facie case

for her failure-to-accommodate claim). Here, Plaintiff has

failed to establish even a prima facie case of ADA failure-to-

accommodate. Therefore, this court need not contemplate whether

to apply later stages of the McDonnell-Douglas framework.

statute; (2) that the employer had notice of her disability; (3)

that with reasonable accommodation she could perform the

essential functions of the position; (4) that the employer

refused to make such accommodations.’” Jacobs v. N.C. Admin.

Off. of the Cts., 780 F.3d 562, 579 (4th Cir. 2015) (cleaned up)

(citation omitted). To prevail on a failure-to-accommodate

claim, a plaintiff must have made “an adequate request” for

accommodation, “thereby putting the employer on notice” of its

“duty to provide [a] reasonable accommodation[].” Lashley v.

Spartanburg Methodist Coll., 66 F.4th 168, 179 (4th Cir. 2023)

(citation omitted).

Here, Plaintiff claims that Defendant failed to provide her

“reasonable accommodation request for temporary leave.” (Pl.’s

Suppl. Pleading (Doc. 25) at 5.) However, Plaintiff produces no

evidence to show that she ever requested “temporary leave” from

Defendant. Instead, the record shows, at best, that Plaintiff

requested time off from work between Wednesday, December 2, and

Friday, December 4. (Id. at 11–16.) Defendant granted that time

off. (Id. at 13.) Plaintiff did not request permission for

“leave” beyond those dates. Because Plaintiff never put

Defendant on notice of her need for an accommodation — such as

time away from work — after December 4, her failure-to-

accommodate claim fails as a matter of law. See Lashley, 66

F.4th at 179,

Vv. CONCLUSION

Plaintiff has failed to establish a prima facie case for her

ADA wrongful discharge and failure-to-accommodate claims. For the

foregoing reasons, Defendant’s Motion for Summary Judgment, (Doc.

41), will be granted.

IT IS THEREFORE ORDERED that Defendant’s Motion for Summary

Judgment, (Doc. 41), is GRANTED and Plaintiff’s Complaint is

DISMISSED.

A Judgment dismissing this action will be entered

contemporaneously herewith.

This the 30th day of December, 2024.

[3 Wie [ ku.

United States District oof

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