The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RUSSELL W. KING, )
)
Plaintiff, )
)
v. ) 1:24-cv-664
)
SOUTHWIRE COMPANY, LLC, )
)
Defendant. )
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
This matter is before this court on Defendant’s Motion for
Summary Judgment. (Docs. 19, 20.) Plaintiff filed a response,
(Docs. 24, 25), and Defendant filed a reply, (Doc. 28). Oral
argument on the motion was held on July 27, 2026. (Docket Entry
07/27/2026.) For the reasons stated herein, Defendant’s motion
will be granted.
I. BACKGROUND
Following oral argument, Plaintiff filed a Motion for Leave
to Supplement the Summary Judgment Record. (Doc. 45.) Plaintiff
also filed a memorandum in support of the motion, (Doc. 46), a
copy of his EEOC Online Inquiry Detail, (Doc. 46–1), and a
supplemental affidavit, (Doc. 46–2). Plaintiff seeks to submit
“this single EEOC document and supporting affidavit so that
Defendant’s dispositive motion may be decided on the most
complete factual record available.” (Doc. 46 at 2.)1 Plaintiff
contends that the additional information “bears directly on
Defendant’s arguments regarding timeliness and equitable
tolling” and supports “his efforts to timely pursue
administrative relief.” (Id. at 10.) While Defendant has not
responded to Plaintiff’s motion, in light of this court’s
discussion below, the motion is ready for a ruling.
This court finds, first, that Plaintiff’s affidavit and
information are not new and not timely. While Plaintiff arguably
should not be permitted to supplement the record with new
information because he fails to satisfy this standard, this
court nevertheless recognizes the preference within the Fourth
Circuit for resolution of cases on the merits, particularly
where the denial would be for untimeliness. As a result, this
court will consider the affidavit and new information.
With respect to the merits of Defendant’s motion for
summary judgment, (Doc. 19), this court finds Plaintiff failed
to exhaust his administrative remedies by timely filing a charge
of discrimination with the EEOC, and that Plaintiff has not
carried his burden to prove that the limitations period should
be equitably tolled. As a result, Plaintiff’s First Cause of
1 All citations in this Order to documents filed with the court
refer to the page numbers located at the bottom right-hand
corner of the documents as they appear on CM/ECF.
Action, alleging a violation of the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12112(a), will be dismissed with
prejudice. Additionally, Plaintiff’s remaining causes of action
for unpaid wages under the North Carolina Wage and Hour Act and
common law breach of contract, (Doc. 1 at 9–11), will be
dismissed with prejudice.
II. ANALYSIS
A. Motion to Supplement the Record (Doc. 45)
Plaintiff contends this court should allow supplementation
of the record through Plaintiff’s affidavit and the EEOC Online
Inquiry Detail because “Plaintiff does not seek to reopen
discovery, amend the pleadings, or inject new issues in this
litigation” and the information was “reasonably believed
unavailable, later discovered, and brought to the Court’s
attention.” (Doc. 46 at 8.)
The court begins its analysis with Rule 56(e), which
provides:
If a party fails to properly support an assertion of
fact or fails to properly address another party’s
assertion of fact as required by Rule 56(c), the court
may:
(1) give an opportunity to properly support or address
the fact;
(2) consider the fact undisputed for purposes of the
motion;
(3) grant summary judgment if the motion and supporting
materials — including the facts considered undisputed —
show that the movant is entitled to it; or
(4) issue any other appropriate order.
Fed. R. Civ. P. 56(e). This rule “allows the trial court in its
discretion to receive supplemental material in support of or in
opposition to a motion for summary judgment before ruling on the
motion.” Adardour v. Am. Settlements Inc., 08CV798, 2009 WL
2242635, at *2 (E.D. Va. July 24, 2009) (emphasis and internal
quotation marks omitted) (quoting RGI, Inc. v. Unified Indus.,
Inc., 963 F.2d 658, 662 (4th Cir. 1992)).
Courts have recognized that “[t]here appears to be no
controlling decision on the propriety of allowing a party to
supplement the evidence in support of . . . a motion for summary
judgment after it has become ripe for review.” Matheny v. L.E.
Myers Co., 16-CV-09304, 2018 WL 1095583, at *1 (S.D.W. Va. Feb.
26, 2018). After reviewing federal court decision on this issue,
the court in Matheny identified three instances where
supplementation was appropriate, including “when new material is
not merely cumulative or corroborative of evidence already in
the record, and . . . creates a new question of material fact
that may impact the ruling,” when “doing so provides the court
with ‘newly discovered evidence that, with reasonable diligence,
could not have been discovered earlier,’” or when “the request
is not made in bad faith and will not result in prejudice to the
other parties.” Id. (citations omitted) (collecting cases).
Here, this court finds that none of the three standards are
satisfied. Starting with the first two standards, Plaintiff did
not submit the EEOC Online Inquiry Detail as part of the summary
judgment briefing, in violation of Rule 6 of the Federal Rules
of Civil Procedure. That rule requires that “any opposing
affidavit must be served at least 7 days before the hearing.”
Fed. R. Civ. P. 6(c)(2). Relatedly, Local Rule 56.1 for the
Middle District of North Carolina requires that a party opposing
summary judgment must within “30 days after service of the
summary judgment motion and brief, file with the Court a
response that . . . sets out the elements that it must prove
(with citations to supporting authority), and the specific,
authenticated facts existing in the record or set forth in
accompanying affidavits.” LR 56.1(e). Under this authority, the
supplemental affidavit and records were not timely filed.
While Plaintiff’s failure to timely file the EEOC Online
Inquiry Detail may not have been a “strategic decision to
withhold evidence or an attempt to reopen the record after an
adverse ruling,” his actions do not reflect a “prompt effort[]
to ensure that the Court has before it a complete administrative
record.” (Doc. 46 at 9.) Regardless of whether or not the EEOC
provided the Online Inquiry Detail to Plaintiff through a
Freedom of Information Act request, (id.), Plaintiff’s affidavit
makes it clear he reviewed his “electronic and paper records
relating to [his] EEOC charge,” after the oral argument on
Defendant’s motion for summary judgment, (Doc. 46–2 at 1).
Because the evidence could have been discovered earlier and is
neither new nor timely, this court finds that supplementation is
not appropriate under the first two standards articulated above.
This court also finds that Plaintiff fails to satisfy the
third standard. Rather than excuse Plaintiff’s failure, his
allegations are somewhat aggravating as Plaintiff placed the
EEOC Online Inquiry Detail at issue in his response to summary
judgment. (See Doc. 25-5 at 3 (“On or about December 28, 2022, I
filed an Inquiry with the Equal Employment Opportunity
Commission (EEOC), which resulted in an appointment for April
13, 2023.”); Doc. 25 at 17 (“King initially contacted the EEOC
by submitting an inquiry on December 28, 2022.”).) Plaintiff had
possession of the Online Inquiry and his failure to provide it
previously is his mistake. The delay in filing was not “beyond
[his] control” and does not appear to be the result of “diligent
and persistent efforts to comply with EEOC procedures.” (Doc. 25
at 18.) Rather, it appears to this court that the circumstances
of this litigation prompted Plaintiff’s reactionary filings. As
a result, this court finds that the third standard is not
satisfied.
Nevertheless, the court will consider the late-filed
affidavit and the EEOC Online Inquiry Detail. The Fourth Circuit
has articulated a “strong policy favoring the disposition of
cases on the merits and disfavoring dismissals without a
decision.” Rangarajan v. Johns Hopkins Univ., 917 F.3d 218, 229
(4th Cir. 2019). This policy is particularly favored where the
denial would be for untimeliness. Lora v. Ledo Pizza Sys., Inc.,
No. CV 16-4002, 2017 WL 3189406, at *4 n.3 (D. Md. July 27,
2017) (collecting cases). Therefore, this court will permit
supplementation of the summary judgment record.
B. Administrative Exhaustion
Turning to the merits of Defendant’s motion, (Doc. 19),
Defendant raises several grounds for summary judgment, (see Doc.
20 at 9-19). Because the court finds summary judgment should be
granted on Plaintiff’s ADA claim for failing to exhaust his
administrative remedies by timely filing a charge of
discrimination with the EEOC, the court will not address other
grounds for summary judgment on the ADA claim.
1. 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, 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 must come forward with
specific facts showing that there is a genuine issue for trial.”
McLean v. Patten Cmtys., Inc., 332 F.3d 714, 719 (4th Cir. 2003)
(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586-87 (1986)). Summary judgment should be granted
“unless a reasonable jury could return a verdict in favor of the
nonmovant on the evidence presented.” Id. at 719 (citing Liberty
Lobby, 477 U.S. at 247–48).
2. Factual Background
The facts are relatively undisputed, although the parties
contest the conclusions that should be drawn from those facts.
Plaintiff suffered a stroke in February 2021 and was
hospitalized with an induced coma for two to three months. (Doc.
20-2 at 25.) On July 13, 2021, his doctor cleared him to “return
to work full time effective July 19, 2021 with no work
restrictions.” (Id. at 97.) Plaintiff worked from his home from
July 2021 to March 2022. (Doc. 25-1 at 38.) On March 15, 2022,
Plaintiff received a “promotion to the position of Director,
Healthcare Vertical.” (Doc. 20-2 at 101.) This position had an
“anticipated start date” of “4/1/2022,” (id.), and Defendant
argues the “position was a lateral move” from his former
position of “Director, Contractor Solutions,” (Doc. 20 at 3).
Plaintiff then went on short-term disability leave on March 24,
2022. (Doc. 25-1 at 20.) Plaintiff recalls reporting “things to
HR that were going on with what was happening in my neck and —
and what the doctors had found.” (Id.) Plaintiff also states he
reported symptoms such as “dizziness, pain in the neck,” being
“tired,” and having “a headache” because “[t]here was a lot of
things that was going on with the right side of my body.” (Id.)
Defendant then “recommended going on leave.” (Id.)
Plaintiff then had another procedure on June 15, 2022. (Id.
at 33.) According to Defendant, Plaintiff spoke with human
resources on August 10, 2022, and he “explain[ed] that he may or
may not be able to return to work. He wasn’t sure.” (Doc. 20-4
at 4.) Human resources then stated that “if he was cleared from
his health care provider, that as part of his return, we would
like to review to see if there’s any accommodations.” (Id.)
Human resources then worked with senior leadership to “update[]”
the “job description and physical requirements of the job.” (Id.
at 8.) Framed as “standard process with every leader that we
work with,” (id.), Defendant “refreshed” and “updated” the job
description “because at the time of a request, we have to ensure
that the job description is accurate and current,” (Doc. 25-2 at
4–5). Human resources explained that there are “multiple
versions of types of our job descriptions,” and “[d]epending on
how and when the job description is used, physical requirements
may or may not be included on the job description.” (Id. at 9.)
On August 26, 2022, Defendant sent Plaintiff the updated job
description with new terms that included standing, walking up
and down stairs, and driving a vehicle. (Doc. 20-2 at 94, 98.)
Plaintiff refused to sign the updated terms, did not request
medical clearance for the new description, (see Doc. 20-2 at 58-
66), and remains an employee on “inactive” status receiving
long-term disability, (Doc. 20-4 at 12).
On December 28, 2022, Plaintiff “filed an Inquiry with the
Equal Employment Opportunity Commission (EEOC), which resulted
in an appointment for April 13, 2023.” (Doc. 25-5 at 3.) Because
of Covid-19 restrictions, “the EEOC was not allowing individuals
to come into the office in-person.” (Id.) In an effort to
“secure an earlier appointment,” Plaintiff “made at least 23
calls to the EEOC.” (Id.) He also “daily checked the EEOC online
portal for earlier appointment availability with no success.”
(Id.) His wife, who also called the EEOC ten times on her own,
(id. at 1), accompanied him to the Greensboro EEOC Office three
times, (id. at 2). Each time, he “was told that the EEOC was not
operating in-person and that [he] should continue to use online
tools and the local phone number.” (Id. at 4.) No appointments
became available, and Plaintiff completed his interview on April
13, 2023. (Id.) The charge was finalized on April 14, 2023.
(Doc. 25-1 at 39.)
From Plaintiff’s most recent filings, the Online Inquiry
establishes the following undisputed facts. Under the heading of
“Reason(s) for Claim,” Plaintiff alleged “12/28/2022” as the
“Date of Incident (Approximate).” (Doc. 46-1 at 4.) Then, as a
submission date, Plaintiff also listed “12/28/2022.” (Id.)
Plaintiff submitted the “Reason for Complaint” as “Disability,”
and stated in the “Adverse Action(s)” section that “I had a
stroke. My employer stopped paying me and changed my job
description by adding two steps after they found I was disabled.
Would not let me take my earned vacation, took my company
vehicle without compensation[.]” (Id.) At the bottom of the
page, the “Appointment” section indicates a phone interview
scheduled for “04/13/2023,” and the section for “Approximate
Deadline for Filing a Charge” lists “06/27/2023.” (Id.) On the
next page of the Online Inquiry, Plaintiff provides additional
information that he “wrote and signed [m]y job description in
March 2022. My supervisor added two tasks to it after I was on
STD and handed it to HR and Legal in September 2022.” (Id. at
5.)
3. Timeliness of Charge
From the undisputed facts in the record, this court finds
that Plaintiff failed to file a timely charge of discrimination
with the EEOC. The ADA requires a plaintiff to file a charge of
discrimination with the EEOC within 180 days of the alleged
discriminatory incident. 42 U.S.C. § 2000e–5(e)(1). The parties
dispute whether the discriminatory incident occurred in August
2022, September 2022, or October 2022. Defendant contends the
relevant date of discrimination is August 26, 2022. (Doc. 20 at
9.) Plaintiff contends the relevant dates of discrimination
include August 2022, when his job description was changed,
October 2022 when Plaintiff’s long-term disability was approved,
November 2022 when his health insurance benefits were cancelled,
or January 2023 when no 401(k) contribution was made. (Doc. 25
at 16.) Additionally, Plaintiff’s Online Inquiry states that the
added “tasks” to his job description were “handed . . . to HR
and Legal in September 2022,” (Doc. 46–1 at 5), while his EEOC
Charge of Discrimination states that “[i]n October 2022, my job
description was sent to me with two additional sentences added,
that no other employee has in their job description,” (Doc. 7–2
at 1).
“[T]he date of an adverse employment decision is the
relevant date for determining whether a plaintiff is a qualified
individual with a disability.” E.E.O.C. v. Stowe-Pharr Mills,
Inc., 216 F.3d 373, 379 (4th Cir. 2000) (internal quotation
marks and citations omitted). “An adverse action includes ‘a
significant change in employment status, such as hiring, firing,
failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in
benefits.’” Manning v. N. Carolina State Univ., 724 F. Supp.3d
438, 454 (E.D.N.C. 2024) (quoting Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 761 (1998)).
This court finds the adverse employment action, and
resulting discriminatory act, occurred on August 26, 2022, when
Defendant added new terms to Plaintiff’s job description. It is
those new terms which Plaintiff contends constituted the adverse
employment action and precluded his return to work. (See e.g.,
Doc. 25 at 11-12 (“Defendant made the decision to alter Mr.
King’s job description in August 2022, to include ‘requirements’
he was unable to perform upon his return from disability
leave.”); Doc. 46 at 10 (recognizing that “the relevant act
occurred on or around September 2022”).)
Plaintiff’s other alleged dates are not acts of
discrimination. Plaintiff argues that on November 1, 2022, he
was placed on long term disability. That appears to be a choice
Plaintiff made. Even if it was not, the transition from short-
term to long-term is a natural progression once the six-month
window expires. (See Doc. 20-2 at 37.) Notably, the August 2022
email that added the new terms also mentioned Plaintiff’s
“upcoming . . . 9/22 transition to long term disability.” (Id.
at 98.) Plaintiff recalls speaking with human resources prior to
that email but could not recall the contents of that call. (Id.
at 36.) Thus, in context the transition to long-term disability
was both required and chosen by Plaintiff. Similarly, the
October 2022 date upon which health insurance was cancelled also
appears to be a transition as part of the disability process as
a result of Plaintiff’s inability to return to work. (See id. at
100.) The other suggested date of January 2023, where a payment
was made “which Plaintiff understands had no corresponding
401(k) contribution” cannot be a discriminatory event. (Doc. 25
at 16.) Plaintiff was not entitled to any payments beyond long-
term disability, and he does not explain what the payment was
for or how it was discriminatory. Thus, the only possible last
discriminatory act was August 26, 2022, when new terms were
added to his job description which in turn, according to
Plaintiff, precluded his return to work. Because Plaintiff’s
charge was finalized on April 14, 2023, (Doc. 25-1 at 39), this
court finds that Plaintiff failed to file a charge of
discrimination within 180 days of August 26, 2022.
Defendant argues that the alleged change in Plaintiff’s job
description is a “discrete alleged discriminatory event” and not
a continuing violation. (Doc. 20 at 10.) Defendant appears to
make this argument because of a phone call between counsel where
Plaintiff’s counsel held the position that the change in
Plaintiff’s job description constituted a continuing violation.
(Doc. 23–1 at 1.) If true, Plaintiff has abandoned this position
in response to summary judgment, now arguing that Plaintiff
“asserts that each act was discriminatory and all were based
upon Defendant’s unlawful disability discrimination, as
indicated on his EEOC Charge, which indicated that this
discrimination was a continuing action.” (Doc. 25 at 16
(emphasis added).) However, in response to Defendant’s motion
for sanctions which this court denied at the hearing, Plaintiff
challenges “the vast majority of cases that the Defendant cites
to deny a continuing violation” under the theory that the cases
“actually discuss situations where employees have been
dismissed, but here, Defendant has kept [Plaintiff] in a quasi-
employment situation.” (Doc. 27 at 9.) This response, (Doc. 27),
was filed after Plaintiff’s response to Defendant’s summary
judgment motion, (Doc. 25). Regardless of this peculiar
presentation of issues, for the sake of completeness this court
will consider whether Plaintiff’s EEOC Charge of Discrimination
is timely under the continuing violation doctrine.
Plaintiff’s charge stated that the discrimination took
place from October 24, 2022 to November 24, 2022 and was a
“Continuing Action.” (Doc. 7–2 at 1.) Plaintiff’s inquiry stated
that the approximate date of the incident occurred on the same
date as the submission date. (Doc. 46–1 at 4.) While a jury may
reasonably infer that Plaintiff believed he suffered a
continuing violation, this court finds that the continuing
violation doctrine cannot apply to Plaintiff’s claims. “[I]t is
well settled that the continuing violation theory only applies
to hostile work environment claims.” Tang v. Becerra, No. CV 21-
2739, 2022 WL 4465899, at *5 (D. Md. Sep. 26, 2022); see also
Boudreaux v. Booz Allen Hamilton, Inc., 25-CV-00051, 2026 WL
788952, at *4 (W.D. Va. Mar. 20, 2026). The doctrine cannot
“revive time-barred discrete acts.” Tripp v. Cnty. of Gates, No.
16-CV-00023, 2017 WL 3528653, at *6 (E.D.N.C. Aug. 16, 2017)
(citing Guessous v. Fairview Prop. Investments, LLC, 828 F.3d
208, 221 n.5 (4th Cir. 2016)). The Complaint alleges “Defendant
has discriminated against Mr. King on the basis of disability,”
(Doc. 1 at 9), and Plaintiff’s response brief asserts that “each
act was discriminatory and all were based upon Defendant’s
unlawful disability discrimination.” (Doc. 25 at 16.) Because
Plaintiff articulates a theory of disability discrimination,
(id. at 8), and not a claim for hostile work environment, this
court finds the continuing violation doctrine inapplicable. As a
result, Plaintiff’s ADA claims are untimely because he failed to
file a charge of discrimination with the EEOC within 180 days of
the alleged discriminatory incident. See 42 U.S.C. § 2000e–
5(e)(1).
4. Equitable Tolling
Plaintiff contends that “if the Court finds that
[Plaintiff’s] Charge of Discrimination was not timely filed,
equitable tolling should be applied.” (Doc. 25 at 18.) Plaintiff
argues that he “diligently pursued opportunities to file his
Charge earlier,” (id. at 6), but the “systemic barriers caused
by the COVID-19 pandemic” justify “the application of equitable
tolling,” (Id. at 18). These “operational limitations at the
EEOC,” according to Plaintiff, were “clearly beyond [his]
control, as [he] and his wife made continuous, documented
efforts to comply with the filing requirements.” (Id.)
Both Plaintiff and his wife submitted affidavits, (Doc. 25–
5), stating that the EEOC told Plaintiff “that the EEOC was not
allowing individuals to come into the office in-person” and
instead Plaintiff had “to continue using online tools and
telephone calls to attempt to secure an earlier appointment.”
(Id. at 3.) Plaintiff asserts that he called the EEOC at least
twenty-three times to secure an earlier appointment, checked the
EEOC online portal daily, and visited the EEOC office in-person
three times. (Id. at 3–4.) Plaintiff’s wife contends that she
also called the EEOC ten times to move Plaintiff’s appointment
and monitored the portal daily. (Id. at 1.) Plaintiff was
unsuccessful in his efforts and attended his scheduled
appointment on April 13, 2023. (Id. at 4.)
Defendant argues that equitable tolling should not apply
because the facts “demonstrate he lied to the EEOC in terms of
when the last discriminatory act occurred.” (Doc. 28 at 8.)
Because Plaintiff “told the EEOC that the last discriminatory
act occurred in October 2022, not August 2022,” Defendant
maintains that “is why the EEOC scheduled his interview in April
2023, within the 6-month statutory deadline for filing his ADA
claim.” (Id. (emphasis omitted).) Moreover, Defendant explains
that Plaintiff’s “self-serving affidavits” in support of
equitable tolling “do not address what he advised the EEOC in
terms of when [Defendant] allegedly last discriminated against
him.” (Id. at 8 n.3 (emphasis in original).)
Equitable tolling is “to be applied sparingly.” Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002); see also 4
Larson on Employment Discrimination § 72.06 (2026) (identifying
that “[p]laintiffs who seek to excuse on equitable grounds their
late filings of charges with the EEOC . . . bear a heavy burden
of proof”). Equitable tolling “focuses on whether there was
excusable delay by the plaintiff.” Edmonson v. Eagle Nat’l Bank,
922 F.3d 535, 549 (4th Cir. 2019) (internal quotation marks
omitted). A court may toll a limitations period only “in those
rare instances where — due to circumstances external to the
party’s own conduct — it would be unconscionable to enforce the
limitation period against the party and gross injustice would
result.” Id. (internal quotation marks omitted).
Historically, the Fourth Circuit maintained a three-part
test for equitable tolling. A litigant “is only entitled to
equitable tolling if he presents (1) extraordinary
circumstances, (2) beyond his control or external to his own
conduct, (3) that prevented him from filing on time.” Rouse v.
Lee, 339 F.3d 238, 246 (4th Cir. 2003). Then, after Rouse, the
Supreme Court articulated a two-part test for equitable tolling.
In Menominee Tribe, the Supreme Court explained that “a litigant
is entitled to equitable tolling of a statute of limitations
only if the litigant establishes two elements: “(1) that he has
been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely
filing.” Menominee Indian Tribe of Wis. v. United States, 577
U.S. 250, 255 (2016). Because this two-part test for equitable
tolling was recognized in Edmonson, this court will determine
whether Plaintiff was pursuing his rights diligently and some
extraordinary circumstance prevented timely filing. See
Edmonson, 922 F.3d at 551 (distinguishing equitable tolling from
other equitable doctrines requiring a three-part test such as
fraudulent concealment).
While the “settled general rule” is that “the burden of
proving an affirmative defense is on the party asserting it,”
McNeill v. Polk, 476 F.3d 206, 220 n.3 (4th Cir. 2007) (King,
J., concurring in part), here, Defendant has established that
Plaintiff’s Charge of Discrimination was not timely filed. Under
such circumstances, Courts have recognized that a “plaintiff
bears the burden of establishing the timeliness of the filing of
her complaint whe[n] it is contested by the defendant.” Cepada
v. Bd. of Educ. of Baltimore Cnty., WDQ-10-0537, 2010 WL
3824221, at *3 (D. Md. Sept. 27, 2010) (internal quotation marks
omitted); see also Hausner v. United States, 811 F. Supp. 3d
691, 704 (D. Md. 2025) (“The party seeking equitable tolling
bears the burden to prove her entitlement to such tolling.”);
Levere v. Signature Props., LLC, No. CV 21-1929, 2022 WL
2159837, at *11 (D. Md. June 14, 2022); Darden v. Cardinal
Travel Ctr., 493 F. Supp. 2d 773, 776 (W.D. Va. 2007).
This court finds that the factual record is insufficient
for Plaintiff to carry his burden of proving that he has been
pursuing his rights diligently and that extraordinary
circumstances prevented timely filing. The facts submitted by
Plaintiff establish that he diligently tried to reschedule the
EEOC interview once the Online Inquiry was submitted and the
interview was scheduled for April 2023. (See Doc. 25–5; see also
Doc. 25 at 6 (arguing Plaintiff “diligently pursued
opportunities to file his charge earlier (emphasis added)).) He
offers no explanation, however, for why the interview was
scheduled for April 2023 in the first instance.
Instead, the factual record with Plaintiff’s supplement
establishes the following critical dates: first, that Plaintiff
listed the Date of Incident as 12/28/2022, (Doc. 46-1 at 4);
second, using that date, the Online Inquiry lists “Approximate
Deadline for Filing a Charge” as “06/27/2023,” (id.); third, the
April 13, 2023 appointment falls within the 180-day deadline
based upon the information Plaintiff provided the EEOC, (id.);
and fourth, Plaintiff later amended the “Date(s) Discrimination
Took Place” from 12/28/2022 specified in the Online Inquiry to
“10/24/2022” in the EEOC Charge of Discrimination, (see Doc. 7-2
at 1).
From these critical dates, Plaintiff is unable to support
his entitlement to equitable tolling because his provision of
information to the EEOC in the Online Inquiry Detail constitutes
a mistake that precludes tolling. Courts in this district have
recognized that “where the plaintiff is at least partly
responsible for the delay or does not diligently pursue his
legal rights, tolling is generally not permitted.” Fulmore v.
City of Greensboro, 834 F. Supp. 2d 396, 413 (M.D.N.C. 2011)
(collecting cases). The undisputed facts in this case establish
that Plaintiff’s alleged date of discrimination created a filing
deadline that the EEOC followed. Plaintiff’s incorrect
information that caused him to miss a filing deadline is the
exact “garden variety claim of excusable neglect” rejected by
the Supreme Court. Menominee Tribe, 577 U.S. at 257–58 (internal
quotation marks omitted). While Plaintiff may not have had the
benefit of counsel advising him during the EEOC filing process,
“a plaintiff’s pro se status does not, on its own, trigger
equitable tolling.” Levere, 2022 WL 2159837, at *12. Plaintiff,
with or without counsel, has not demonstrated that he ever
provided accurate information to the EEOC such that “there is no
indication he was responsible for the EEOC’s delay.” Fulmore,
834 F. Supp. 2d at 415.
This conclusion is consistent with Fourth Circuit
precedent. In Citicorp Person-to-Person Fin. Corp. v. Brazell,
the plaintiff was required by statute to file a charge with the
state civil rights office before the EEOC could consider the
charge. 658 F.2d 232, 233-34 (4th Cir. 1981). The plaintiff
first contacted the EEOC, and on the EEOC form the plaintiff
reported “that she had filed a charge with SCHAC and then,
somewhat ambiguously, that it would be filed on July 10, 1979.”
Id. at 234. As a result of this report, the EEOC did not refer
the complaint to the state agency. Id. The court explained that
“[e]ven though there may be some reasonable explanation of Ms.
Brazell’s legal mistake, if there was one, it was her mistake.”
Id. at 235. “Under these circumstances,” the court held, “we
find no basis for the application of an equitable tolling
doctrine, even if we were to embrace it in principle.” Id.
Like in Brazell, Plaintiff’s reported date of
discrimination may have some reasonable explanation, namely that
he believed there was a continuing violation. (See Doc. 7–2 at
1; Doc. 46–1 at 4.) Had Plaintiff provided this explanation to
this court, and if this court were to find that the explanation
was not garden variety excusable neglect, the record remains
factually insufficient to support equitable tolling. Plaintiff
states that after he submitted his inquiry, “an appointment was
scheduled for April 13, 2023.” (Doc. 25 at 17.) Plaintiff does
not explain why the interview was scheduled for that date.
Plaintiff also does not identify what he told the EEOC during
his attempts to reschedule his interview, nor does he explain
why he sought to reschedule an interview that fell within the
180-day time limit based upon his description of the
discrimination to the EEOC. Furthermore, Plaintiff offers no
facts which would support a finding that the EEOC would not have
provided an earlier interview if Plaintiff had accurately
described the date of discrimination in his Online Inquiry.
Instead, Plaintiff argues inferences contradicted by the factual
record.
Plaintiff contends that the facts of this case are
analogous to Morris v. Lowes Home Centers, 10-CV-388, 2011 WL
2417046 (M.D.N.C. June 13, 2011). There, the plaintiff “visited
the EEOC . . . eighteen days before the last possible filing
deadline.” Id. at *4. After completing the intake questionnaire,
the “EEOC did not interview her then and scheduled the interview
instead for November 5, 2007, even though her intake
questionnaire . . . indicated that the filing deadline would
have passed by that time.” Id. (citation omitted). The EEOC
“later further delayed [the] interview, rescheduling it for . .
. a full month after the last possible filing deadline.” Id.
Because there was “nothing to indicate [plaintiff] contributed
to the delay or could have proceeded without the EEOC’s
involvement,” the court found that “the EEOC’s delay in
scheduling an interview and preparing her charge constitutes an
extraordinary circumstance that was beyond her control and
prevented her from filing the charge on time.” Id.
Unlike in Morris, where the plaintiff’s completed intake
questionnaire “indicated that the filing deadline would have
passed by” the time of the interview, id., Plaintiff’s Online
Inquiry indicated June 2023 as a filing deadline and Plaintiff
was scheduled for an April 2023 interview, (Doc. 46–1 at 4).
Additionally, Plaintiff has not presented any evidence that the
EEOC knew why Plaintiff needed an earlier appointment. The
evidence therefore does not support the conclusion in Morris
that any delays were “due entirely to the EEOC” because the
plaintiff “acted diligently to preserve her rights.” Morris,
2011 WL 2417046, at *5. Plaintiff may have diligently pursued
the rescheduling of his appointment, but no evidence indicates
“agency error or misinformation” sufficient to justify equitable
tolling. Id. at *4 (quoting Bishop v. Hazel & Thomas, PC, No.
97-2284, 1998 WL 377912, at *2 n.3 (4th Cir. July 1, 1998)).
Plaintiff also asserts that “the COVID-19 pandemic and its
resulting operational limitations at the EEOC equate to
‘extraordinary circumstances.’” (Doc. 25 at 18.) Such
circumstances, according to Plaintiff, “were clearly beyond
[Plaintiff’s] control, as [Plaintiff] and his wife made
continuous, documented efforts to comply with the filing
requirements.” (Id.) Considering this issue, a court in this
district recognized that courts “have not found that the COVID-
19 pandemic justifies equitable tolling absent a corresponding
showing that the pandemic prevented the plaintiff from timely
filing suit.” Willard v. Indus. Air, Inc., 20-CV-00823, 2021 WL
309116, at *4 (M.D.N.C. Jan. 29, 2021) (collecting cases).
Moreover, courts finding that the COVID-19 pandemic justifies
equitable tolling have recognized, as a point of distinction,
that the plaintiff “can point to specific ways in which the
COVID-19 pandemic – and the EEOC’s response – prevented him from
filing his charge of discrimination within the 180-day window.”
Nunez v. Brookhaven Sci. Assocs., LLC, No. CV 23-272, 2024 WL
168317, at *3 (E.D.N.Y. Jan. 16, 2024) (emphasis added).
Here, this court finds that Plaintiff has failed to provide
evidence that identifies, in specific ways, how the COVID-19
pandemic supports equitable tolling. Plaintiff does not allege
“how he or the EEOC were affected by the COVID-19 pandemic in
such a way that timely filing was impeded.” Uchikura v. Willis
Towers Watson Call Ctr., No. CV-22-00002, 2022 WL 17552449, at
*11 (D. Ariz. Dec. 9, 2022). Instead, Plaintiff asserts that
because “the EEOC was not allowing individuals to come into the
office in-person,” he could not “secure an earlier appointment.”
(Doc. 25–5 at 3.) Such facts may support that his ability to
reschedule an appointment was impeded, or that his ability to
attend his interview in person was impeded, but neither indicate
how the EEOC’s operations “prevented his ability to timely file
suit” when the EEOC interviewed Plaintiff within the deadline
established by the information he reported. Willard, 2021 WL
309116, at *4. This court therefore finds that Plaintiff has
failed to provide evidence supporting that his deadline to file
a charge of discrimination should be equitably tolled because he
pursued his rights diligently and that extraordinary
circumstances prevented timely filing. Summary judgment is thus
appropriate for Plaintiff’s ADA claim.
C. State Law Claims
Plaintiff also contends that “as a benefit of his
employment,” Defendant promised that Plaintiff “would receive
either a monthly stipend for a company vehicle payment or a on-
time lump sum payment of $10,000.00 upon surrender of the
company vehicle.” (Doc. 1 at 6.) Plaintiff asserts that after he
went on short-term disability leave in April 2022, “a
representative of Defendant retrieved his company vehicle from
his residence.” (Id.) When Plaintiff “requested that he receive
his $10,000.00 lump sum that he was now entitled to,” Defendant
“failed to provide [Plaintiff] with the lump sum payment.” (Id.
at 6–7.)
Defendant argues that “Plaintiff has failed to establish
any contractual right to such payment or that [Defendant] had a
policy of paying $10,000 to anyone who returned a company
vehicle, because no such contract or policy exists.” (Doc. 20 at
18.) Rather, Defendant “had a vehicle policy providing for a
$10,000 a year allowance for certain employees who drove their
own vehicles more than 5,000 miles a year for business
purposes.” (Id. at 19 (emphasis in original).) Because Plaintiff
“has not proven he drove a single mile for . . . business
purposes at any point in 2022,” or that “he reviewed and signed
off on the vehicle policy as required to be eligible for the
allowance,” Defendant asserts that “Plaintiff has offered only
speculative testimony regarding payments made to employees who
surrendered vehicles.” (Id.)
Defendant provided a copy of the “Vehicle Policy” at issue
in this case. (Doc. 20–3 at 11.) The policy explains that
“[m]any employees operate company owned, leased, rental or their
personal vehicles as part of their jobs.” (Id.) Because of the
nature of the work at the company, “certain roles” are “eligible
for a vehicle.” (Id. at 4.) According to the Vice President of
Total Rewards Deborah Graham, (see id. at 23), Plaintiff was
eligible for a company vehicle because his job fell within the
classification of outside sales, (id. at 8). The policy’s
section for outside sales employees stated that “[i]f, as
determined by the area EVP, a truck and/or trailer is not needed
to perform their job responsibilities Outside Direct Sales
Employees are eligible for a vehicle allowance.” (Id. at 13
(emphasis in original).) Under the appendix for vehicle
allowances, the policy stated that “Direct Sales” employees that
“drive [a] minimum of 5,000 miles annually for company business”
receive an “Annual Allowance” of $10,000. (Id. at 26.) The
policy also provided several requirements for both employees
with a company vehicle and employees receiving a vehicle
allowance. For those with a company vehicle, the policy required
completed safety forms and mileage reimbursement forms. (Id. at
13.) For those receiving a vehicle allowance, the policy
required “proof of sustainability requirement,” (id. at 14), and
mileage reporting, (id. at 17). Graham also stated during
deposition that “to be eligible for the allowance” an employee
“must complete a training video that walks through the details
of the policy as well as sign off on the policy.” (Id. at 9.)
This court finds that summary judgment should be granted
for both Plaintiff’s wage claim and contract claim. The North
Carolina Wage and Hour Act (“WHA”) defines wage as “compensation
for labor or services rendered by an employee whether determined
on a time, task, piece, job, day, commission, or other basis of
calculation.” N.C. Gen. Stat. § 95—25.2(16). The WHA also
provides that the definition of wages “includes sick pay,
vacation pay, severance pay, commissions, bonuses, and other
amounts promised when the employer has a policy or practice of
making such payments.” Id. The North Carolina Department of
Labor promulgated a rule interpreting the WHA term “[o]ther
amounts promised” and stated that the term includes “those
amounts which the employer has promised or has a policy or
practice of paying and shall include, but are not limited to,
travel expenses, holiday pay, birthday pay, jury duty pay, shift
premium pay, prizes, moving expenses, educational expenses, or
telephone expenses.” N.C. Admin. Code tit. 13, r. 12.0310.
Plaintiff’s contention that the vehicle allowance
constitutes a wage under North Carolina law rests on the notion
that Defendant maintains a “practice” of compensating employees
“when surrendering a company vehicle.” (Doc. 25 at 20.) This
court agrees with Defendant that the only evidence produced to
support Plaintiff’s contention is “a self-serving statement,”
(Doc. 28 at 9), where he sent a text message to an employee in
human resources asking if he was “eligible for the buyout”
because he knew “others that turned in Company vehicles and use
their own car were paid 10K because the lure of a company
vehicle was in our salary when we signed with [Defendant],”
(Doc. 25–3 at 5). At summary judgment, this court finds that
Plaintiff’s self-serving statements amounting to hearsay are
unable to “defeat summary judgment” because they are
inadmissible and lack “objective corroboration.” Williams v.
Giant Food Inc., 370 F.3d 423, 433 (4th Cir. 2004); Maryland
Highways Contractors Ass’n, Inc. v. State of Md., 933 F.2d 1246,
1251 (4th Cir. 1991) (“[H]earsay evidence, which is inadmissible
at trial, cannot be considered on a motion for summary
judgment.”).
In fact, the document capable of objectively corroborating
Plaintiff’s opinion confirms Plaintiff’s misstatement of the
policy. Contrary to Plaintiff’s contention that compensation
vests upon surrendering the vehicle, the condition necessary for
eligibility is the determination by an “area EVP” that a truck
or trailer “is not needed to perform” an employee’s “job
responsibilities.” (Doc. 20–3 at 13 (emphasis in original).)
Outside sales employees, as explained in the appendix on vehicle
allowances, are “[r]equired to drive [a] minimum of 5,000 miles
annually for company business.” (Id. at 26.) Therefore, the
events that trigger the allowance are not the returning of a
company vehicle, but the determination of whether a vehicle is
necessary for performing job responsibilities and the continued
performance of driving for company business.
More fundamentally, however, Plaintiff “rendered” no “labor
or services” necessary to constitute wages under the WHA. N.C.
Gen. Stat. § 95—25.2(16). While the WHA has been interpreted to
include circumstances where an employer has a “practice of
paying” and thus might not require a formal policy, N.C. Admin.
Code tit. 13, r. 12.0310, this court finds that prior to any
wages being owed, an employee must “actually perform[] the work
required to earn them,” Kornegay v. Aspen Asset Grp., LLC, 204
N.C. App. 213, 229, 693 S.E.2d 723, 735 (2010) (emphasis
omitted) (internal quotation marks omitted). Courts
interpreting the WHA have recognized that “a predicate for
recovery under this statute is an employee’s ability to show
that he met the conditions necessary to earn the wages to which
he was entitled by performing the required work.” Buckner v.
United Parcel Serv., Inc., 09-CV-411, 2010 WL 2889586, at *3
(E.D.N.C. July 21, 2010) (emphasis added), aff’d, 489 F. App’x
709 (4th Cir. 2012). Plaintiff cannot show entitlement to earned
wages because his theory of discrimination is centered upon the
fact that “he has been prevented from returning to work,” (Doc.
25 at 13), including at the time Defendant retrieved the company
vehicle. (See Doc. 7–2 (stating the company vehicle was “taken .
. . without compensation” in April 2022).) Thus, even if
Defendant maintained a practice of compensating employees for
returning company vehicles beyond that stated in the policy,
this court finds that Plaintiff’s wage claim falls outside the
definition of wages under the WHA.
Summary judgment is also appropriate for Plaintiff’s
contract claim. Plaintiff contends that the “valid, binding
employment agreement” was an “employment contract” that
“contained a promise that [Plaintiff] would receive either a
monthly stipend for a company vehicle payment or a one-time lump
sum payment of $10,000.00 upon surrender of the company
vehicle.” (Doc. 1 at 11.) Plaintiff argues that because he and
Defendant “agreed upon pay, participation and Defendant’s
incentives, commissions plans, and the use of a company vehicle
for the duration of his employment,” and then Plaintiff
“accepted the terms offered by Defendant,” the parties “created
a valid, binding employment contract.” (Doc. 25 at 19.)
Defendant argues that “Plaintiff cannot show the existence
of any employment agreement between him and [Defendant], let
alone one obligating [Defendant] to pay him $10,000 upon return
of a company vehicle. Nor could he.” (Doc. 20 at 19 (internal
citations omitted).) Defendant asserts that Plaintiff has not
“demonstrated that he reviewed and signed off on the vehicle
policy as required to be eligible for the allowance (if he were
to have used his own vehicle to travel, which he did not.)”
(Id.) According to Defendant, “Plaintiff has offered only
speculative testimony regarding payments made to employees who
surrendered vehicles.” (Id.)
This court finds that the undisputed facts before this
court fail to prove the existence of a valid contract. Plaintiff
correctly identifies that “the elements of a breach of contract
claim are (1) the existence of a valid contract and (2) a breach
of the terms of that contract.” (Doc. 25 at 19 (quoting
BioSignia, Inc. v. Life Line Screening of Am., Ltd., 12CV1129,
2014 WL 2968139, at *4 (M.D.N.C. July 1, 2014)).) Under North
Carolina law, however, “[t]he well-settled elements of a valid
contract are offer, acceptance, consideration, and mutuality of
assent to the contract’s essential terms.” Se. Caissons, LLC v.
Choate Const. Co., 247 N.C. App. 104, 110, 784 S.E.2d 650, 654
(2016) (citing Snyder v. Freeman, 300 N.C. 204, 218, 266 S.E.2d
593, 602 (1980)). Mutuality of assent “is essential to the
formation of any contract . . . so as to establish a meeting of
the minds.” Ward v. Ward, 252 N.C. App. 253, 258, 797 S.E.2d
525, 529 (2017) (quoting Creech v. Melnik, 347 N.C. 520, 526-27,
495 S.E.2d 907, 911-12 (1998)). “Mutual assent is typically
formed ‘by an offer by one party and an acceptance by the other,
which offer and acceptance are essential elements of contract.”
FIA Card Servs., N.A. v. Caviness, No. COA13-1442, 24 WL
2123376, at *2 (N.C. Ct. App. May 20, 2014) (emphasis in
original) (quoting Connor v. Harless, 176 N.C. App. 402, 405,
626 S.E.2d 755, 757 (2006)).
Here, this court finds that the agreement lacks evidence of
mutuality of assent. Defendant argues that there was no proof
that Plaintiff “reviewed and signed off on the vehicle policy,”
(Doc. 20 at 19), and Plaintiff provides no evidence to rebut the
deposition testimony of Deborah Graham that Plaintiff “did not
complete the training” that was required “to start the vehicle
allowance,” (Doc. 20–3 at 10). Defendant’s copy of the vehicle
policy is not signed by Plaintiff, (id. at 24–28), and Plaintiff
produces no evidence from Defendant identifying an entitlement
to or eligibility for a vehicle allowance. In fact, Plaintiff
was asked during his deposition “[w]hat is the basis of your
contention that you were promised pay in exchange for turning
over the vehicle,” and he responded that “nobody promised me
anything” but “[t]o my best recollection, there is a document
that would say that.” (Doc. 20–2 at 78.) Additionally, the text
messages between Plaintiff and human resources reveal that
Plaintiff’s understanding of a vehicle allowance was premised on
“others who had to turn them in.” (Doc. 25–3 at 7.) While these
facts may reveal that Plaintiff was aware of coworkers receiving
a vehicle allowance, they are insufficient to demonstrate
mutuality of assent.
The North Carolina Court of Appeals has recognized that
“[t]o constitute a valid contract, the parties must assent to
the same thing, their minds must meet as to all essential
terms.” Braun v. Glade Valley Sch., Inc., 77 N.C. App. 83, 89,
334 S.E.2d 404, 408 (1985) (emphasis added). In Braun, the court
considered whether a letter sent from a school to a teacher
stating “I am planning for you to be a part of our faculty next
year” constituted a contract. Id. at 84, 334 S.E.2d at 405. The
court explained that the “letter is not a complete contract
within itself” because “[a]t best, the letter constituted a
future promise to enter into a contract in the future.” Id. at
89, 334 S.E.2d at 408. The evidence, according to the court,
made it “clear that the plaintiff and defendant . . . never
reached mutual understanding as to salary, fringe benefits,
length of employment, duties and responsibilities, or housing
arrangements.” Id. at 89–90, 334 S.E.2d at 408.
Similarly here, Plaintiff and Defendant never reached a
mutual understanding as to the vehicle allowance. The absence of
the mutuality of assent is not only demonstrated by the
evidentiary shortcomings identified above, but also Plaintiff’s
inaccurate understanding of how the policy worked in practice.
This misunderstanding was not informed by Defendant’s actions or
promises, (see Doc. 20–2 at 78), but rather Plaintiff’s
coworkers’ representations. The evidence before this court is
therefore insufficient to establish a meeting of the minds
between Plaintiff and Defendant because at no point did the two
parties “assent to the same thing” where an eligible employee
could receive a vehicle allowance upon the determination by an
“area EVP” that a company vehicle “is not needed to perform” an
employee’s “job responsibilities,” (Doc. 20–3 at 13 (emphasis in
original)). Braun, 77 N.C. App. at 89, 334 S.E.2d at 408. As a
result, summary judgment is appropriate for Plaintiff’s contract
claim.
III. CONCLUSION
For the foregoing reasons,
IT IS THEREFORE ORDERED that Defendant’s Motion for Summary
Judgment, (Doc. 19), is GRANTED and Plaintiff’s Complaint, (Doc.
1), is DISMISSED WITH PREJUDICE.
A Judgment dismissing this action will be filed
contemporaneously herewith.
This the 14th day of August, 2026.
United States District Judge
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