IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-546
Filed 7 May 2024
Durham County, No. 18 CVS 3093
MICHAEL C. HOAGLIN, M.D., Plaintiff,
v.
DUKE UNIVERSITY HEALTH SYSTEM, INC. d/b/a DUKE UNIVERSITY HOSPITAL and JOSHUA SETH BRODER, M.D., Defendants.
Appeal by Plaintiff from order entered 27 October 2022 by Judge Michael J.
O’Foghludha in Durham County Superior Court. Heard in the Court of Appeals 28
November 2023.
Bailey & Dixon, LLP, by J. Heydt Philbeck, Sr., BrennerBondourant, by Lawrence H. Brenner, & Brown, Goldstein & Levy, LLP, by Gregory P. Care, admitted pro hac vice, & Anthony May, admitted pro hac vice, for Plaintiff- Appellant.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C., by Robert A. Sar, Jefferson Palmer Whisenant, Savannah Singletary, & Vanessa Nicole Garrido, for Defendant-Appellee.
CARPENTER, Judge.
Michael C. Hoaglin, M.D. (“Plaintiff”) appeals from the trial court’s grant of
summary judgment to Duke University Health System, Inc., (“Duke”) and Joshua
Seth Broder, M.D. (collectively, “Defendants”). On appeal, Plaintiff argues the trial
court erred by: (1) granting Defendants summary judgment; and (2) denying his
request for attorneys’ fees concerning his successful motion to compel. After careful HOAGLIN V. DUKE UNIV. HEALTH SYS., INC.
Opinion of the Court
review, we affirm in part and reverse in part.
I. Factual & Procedural Background
This case concerns a hospital’s decision to terminate a resident from the
hospital’s emergency-medicine residency program, an educational program for
medical doctors. Defendant Duke is the hospital, and Plaintiff is the terminated
resident. On 3 July 2018, Plaintiff sued Defendants for breach of contract and
violations of the Americans with Disabilities Act (the “ADA”).
On 16 November 2020, Plaintiff moved to compel Defendants to produce
documents for which Defendants claimed privilege. On 31 March 2021, the trial court
granted Plaintiff’s motion. On 26 August 2021, Plaintiff filed a motion for sanctions
and attorneys’ fees concerning discovery. After conducting an in-camera review of
the documents for which Defendants claimed privilege, the trial court denied
Plaintiff’s request for attorneys’ fees.
On 30 June 2022, both parties moved for summary judgment. The evidence
presented at the summary-judgment hearing tended to show the following. In April
2016, Plaintiff signed a contract outlining the terms of his employment with Duke
(the “Contract”). Among other things, the Contract states that Plaintiff’s sole source
of compensation must be the program stipend, and not from other unapproved work:
“this shall be the Trainee’s sole source of compensation.” The Contract also states
that:
During the term of this Agreement, the Trainee’s
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appointment is conditional upon satisfactory performance of all Program elements by the Trainee. If the actions, conduct, or performance, professional, academic, or otherwise, of the Trainee are deemed by the Hospital, Office of Graduate Medical Education or Program Director to be inconsistent with the terms of this Agreement, the Hospital’s standards of patient care, patient welfare, or the objectives of the Hospital or Program educational expectations, or if such actions, conduct, or performance reflects adversely on the Program or Hospital or disrupts operations at the Program or Hospital, corrective action may be taken by the Hospital, Director of Graduate Medical Education and/or Program Director as set forth in the Corrective Action and Hearing Procedures for Associate Medical Staff (a copy of which is available online at www.gme.duke.edu).
The parenthetical following the Corrective Action and Hearing Procedures for
Associate Medical Staff (the “Procedures”) includes a hyperlink to the Procedures.
The Procedures include various protocols concerning notices, hearings, and appeals
within Duke’s corrective-action process.
By January of 2017, Defendants received several grievances concerning
Plaintiff, including the following: “[Plaintiff] did not listen to concerns, was rude, and
discharged a patient too soon”; Plaintiff made perceived racist comments concerning
hairstyle; Plaintiff asked a patient questions deemed too personal; Plaintiff
performed a pelvic exam that a patient described as an “absolutely unacceptable”
experience; and Plaintiff exhibited “unprofessional behavior.”
Plaintiff, however, points to several instances in which Defendants spoke
highly of Plaintiff’s performance, including: “[Plaintiff] is doing very well”; “[Plaintiff]
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has all of the skills he will ultimately need”; and Plaintiff is on track to “graduate the
program.” Duke employees made these last two statements thirty-one days and
sixteen days, respectively, before Plaintiff’s termination.
In February 2017, Plaintiff saw a counselor at Duke for depression. On 1
March 2017, Plaintiff completed Duke’s Reasonable Accommodation Request Form
concerning his depression. After receiving Plaintiff’s request, Defendants agreed to
“ensure that this need is observed.” Specifically, Defendants committed to Plaintiff
that he would not be “scheduled for more than 5 days in a row.” Plaintiff does not
allege that Defendants failed to meet this assurance.
On 22 March 2017, Defendants documented additional concerns about
Plaintiff’s behavior, including: Plaintiff having a “second job driving for Uber”;
Plaintiff sleeping in hospital call rooms while “rent[ing] his apartment out on
AirBnB”; and Plaintiff “rent[ing] his car out online” and using the hospital fatigue
cab for regular transportation. When asked about his alleged other incomes, Plaintiff
responded, “[n]o, this is all I do. It’s not like I have a secret job or something.”
On 30 March 2017, Defendants terminated Plaintiff’s employment because of
“institutional policy violations.” Plaintiff appealed his termination to a hearing
panel, and on 1 May 2017, the panel unanimously voted to uphold the termination.
On 23 May 2017, Defendants notified Plaintiff of the final determination. Plaintiff
and Defendants offer competing evidence as to whether Defendants complied with
the Procedures when they terminated Plaintiff.
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On 27 October 2022, the trial court granted Defendants summary judgment,
dismissing Plaintiff’s claims. On 23 November 2022, Plaintiff filed written notice of
appeal.
II. Jurisdiction
This Court has jurisdiction under N.C. Gen. Stat. § 7A-27(b)(1) (2023).
III. Issues
The issues on appeal are whether the trial court erred by: (1) granting
Defendants summary judgment; and (2) denying Plaintiff’s request for attorneys’ fees
concerning his successful motion to compel.
IV. Analysis
A. Summary Judgment
We review appeals from summary judgment de novo. In re Will of Jones, 362
N.C. 569, 573, 669 S.E.2d 572, 576 (2008). Under a de novo review, “‘the court
considers the matter anew and freely substitutes its own judgment’ for that of the
lower tribunal.” State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008)
(quoting In re Greens of Pine Glen, Ltd. P’ship, 356 N.C. 642, 647, 576 S.E.2d 316,
319 (2003)).
Summary judgment is appropriate when “there is no genuine issue as to any
material fact,” and a party is “entitled to a judgment as a matter of law.” N.C. Gen.
Stat. § 1A-1, Rule 56(c) (2023). Concerning summary judgment, courts “must view
the presented evidence in a light most favorable to the nonmoving party.” Dalton v.
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Camp, 353 N.C. 647, 651, 548 S.E.2d 704, 707 (2001). “Since this rule provides a
somewhat drastic remedy, it must be used with due regard to its purposes and a
cautious observance of its requirements in order that no person shall be deprived of
a trial on a genuine disputed factual issue.” Kessing v. Nat’l Mortg. Corp., 278 N.C.
523, 534, 180 S.E.2d 823, 830 (1971).
Indeed, receiving summary judgment has the same effect as winning at trial—
without going to trial. See id. at 533, 180 S.E.2d at 829 (“The purpose of summary
judgment can be summarized as being a device to bring litigation to an early decision
on the merits without the delay and expense of a trial where it can be readily
demonstrated that no material facts are in issue.”).
1. Breach of Contract Claims
In his first argument, Plaintiff asserts that the trial court erred by granting
Defendants summary judgment concerning his breach-of-contract claims. To support
this, Plaintiff argues that (1) the Contract incorporated the Procedures, and (2) he
presented evidence that Defendants breached the Procedures. After careful review,
we agree with Plaintiff.
a. Incorporation
“The elements of a claim for breach of contract are (1) existence of a valid
contract and (2) breach of the terms of that contract.” Poor v. Hill, 138 N.C. App. 19,
26, 530 S.E.2d 838, 843 (2000) (citing Jackson v. Cal. Hardwood Co., 120 N.C. App.
870, 871, 463 S.E.2d 571, 572 (1995)). Contract “construction is a question of law for
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the court.” Story v. Stokes, 178 N.C. 409, 411, 100 S.E. 689, 690 (1919). Incorporation,
the idea that a document referenced in a contract can become part of the contract, see
Incorporation by Reference, BLACK’S LAW DICTIONARY (11th ed. 2019), is a question of
construction and thus, a question of law, see Walker v. Westinghouse Elec. Corp., 77
N.C. App. 253, 259, 335 S.E.2d 79, 83–84 (1985).
We considered contract incorporation in Walker, where an employee received
a “handbook” from his employer. 77 N.C. App. at 259, 335 S.E.2d at 84. The
handbook “apparently promised” that it would “become more than a handbook . . . it
w[ould] become an understanding . . . .” Id. at 260, 335 S.E.2d at 84 (quoting the
handbook). The Walker Court was “aware that a growing number of jurisdictions
recognize that employee manuals purporting to set forth causes for termination may
become part of the employment contract even in the absence of an express
agreement.” Id. at 259, 335 S.E.2d at 83.
Nonetheless, we stated that “the law of North Carolina is clear that
unilaterally promulgated employment manuals or policies do not become part of the
employment contract unless expressly included in it.” Id. at 259, 335 S.E.2d at 83–
84. Therefore, the “contract did not, under our law, include the Handbook.” Id. at
260, 335 S.E.2d at 84.
We again considered contract incorporation in Supplee v. Miller-Motte
Business College, Inc. 239 N.C. App. 208, 211, 768 S.E.2d 582, 587 (2015). There, the
plaintiff signed a program-enrollment agreement that was “subject to all terms and
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conditions set forth in the Catalog.” Id. at 211, 768 S.E.2d at 587. We held that the
enrollment agreement “incorporated the terms and conditions set forth in the . . .
student catalog,” which therefore “became a part of the contract between defendants
and [the plaintiff].” Id. at 219–20, 768 S.E.2d at 592.
Here, the Contract states that “corrective action may be taken . . . as set forth
in the [Procedures.]” Because the “conditions set forth in the Catalog” were
incorporated into the Supplee contract, see id. at 219–20, 768 S.E.2d at 592, likewise,
the requirements “set forth in the [Procedures]” were incorporated into the Contract.
The Contract could have incorporated the Procedures with more force: For
example, the Contract could have stated that “the procedures are incorporated into
this contract,” or “the procedures are part of this contract.” Nonetheless, the Contract
incorporated the Procedures because under Supplee, the Procedures were “expressly
included” in the Contract. See id. at 219–20, 768 S.E.2d at 592. Accordingly,
concerning Plaintiff’s breach-of-contract claims, failure to incorporate the Procedures
was not a basis upon which the trial court could grant Defendants judgment, as a
matter of law. See N.C. Gen. Stat. § 1A-1, Rule 56(c).
b. Breach of the Procedures
Next, we must discern whether there are any genuine issues of material fact
concerning Plaintiff’s breach-of-contract claims. See id. A breach-of-contract claim
requires a material breach, see Fletcher v. Fletcher, 123 N.C. App. 744, 752, 474
S.E.2d 802, 807–08 (1996), and whether a breach is material is a question of fact, see
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Charlotte Motor Speedway, Inc. v. Tindall Corp., 195 N.C. App. 296, 302, 672 S.E.2d
691, 695 (2009).
Here, the Procedures include various protocols concerning notices, hearings,
and appeals within Duke’s corrective-action process. And concerning Plaintiff’s
breach-of-contract claims, Plaintiff and Defendants offer competing evidence as to
whether Defendants followed the Procedures when they terminated Plaintiff. For
example, Plaintiff offered evidence that Defendants denied him an impartial appeals
panel, as guaranteed by the Procedures, and Defendants offered evidence that
Plaintiff’s appeals panel was indeed impartial.
Because we “must view the presented evidence in a light most favorable to the
nonmoving party,” see Dalton, 353 N.C. at 651, 548 S.E.2d at 707, genuine issues of
material fact remain in this case—specifically, whether Defendants breached the
Procedures and, if so, whether the breaches were material, see Charlotte Motor
Speedway, 195 N.C. App. at 302, 672 S.E.2d at 695. Therefore, the trial court erred
when it granted Defendants the “drastic remedy” of summary judgment concerning
Plaintiff’s breach-of-contract claims, as Defendants were not entitled to “judgment as
a matter of law” because genuine issues of material fact remain. See Kessing, 278
N.C. at 534, 180 S.E.2d at 830; N.C. Gen. Stat. § 1A-1, Rule 56(c).
2. ADA Claims
Next, Plaintiff challenges the trial court’s grant of summary judgment
concerning his three ADA claims: one alleging discrimination, one alleging failure to
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accommodate, and one alleging retaliation. We disagree with Plaintiff concerning the
first two claims, but we agree with him concerning his final claim of retaliation.
The ADA prohibits certain employers from discriminating against disabled
employees because of their disabilities. See 42 U.S.C. 12112(a). Courts analyze ADA
claims under the McDonnell Douglas burden-shifting framework. See Haynes v.
Waste Connections, Inc., 922 F.3d 219, 223 (4th Cir. 2019); McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802–03, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 677–78 (1973).
Under McDonnell Douglas, a plaintiff must first show a prima-facie ADA
claim. Ennis v. Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995).
If the plaintiff is successful, the burden shifts to the defendant to show a “legitimate,
nondiscriminatory explanation which, if believed by the trier of fact, would support a
finding that unlawful discrimination was not the cause of the employment action.”
Id. If the defendant is then successful, “the plaintiff bears the ultimate burden of
proving that [the plaintiff] has been the victim of intentional discrimination.” Id.
a. Discrimination Claim
A prima-facie discrimination claim under the ADA requires: (1) a disabled
plaintiff; (2) who was a “qualified individual”; (3) who suffered an adverse
employment action because of a disability. See Jacobs v. N.C. Admin. Off. of the Cts.,
780 F.3d 562, 572 (4th Cir. 2015). Here, there is no dispute about whether Plaintiff
is disabled or whether he suffered an adverse employment action. The parties only
dispute whether Plaintiff is a “qualified individual.”
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A qualified individual is “an individual who, with or without reasonable
accommodation, can perform the essential functions of the employment position.”
Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013) (quoting 42 U.S.C. §
12111(8)). To establish that he is qualified, Plaintiff must show “(1) that he could
satisfy the essential eligibility requirements of the program, i.e., those requirements
‘that bear more than a marginal relationship to the [program] at issue, and (2) if not,
whether any reasonable accommodation by [Defendants] would enable’ [P]laintiff to
meet these requirements.” Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454,
462 (4th Cir. 2012) (quoting Tyndall v. Nat’l Educ. Ctrs., Inc., 31 F.3d 209, 213 (4th
Cir. 1994)) (first alteration in original). In making these determinations, courts give
deference to medical schools. See id. at 463 (noting that courts are in poor position to
assess academic performance). We are in an equally poor position to assess medical
practice, so similar deference applies in a medical-residency context. See id.
A qualified-individual analysis is a two-part question: (1) Are the employee’s
obligations “essential”? And (2) can the employee satisfy the obligations, regardless
of employer accommodation? See id. at 462. We will begin Plaintiff’s qualified-
individual inquiry by analyzing his contractual obligations, specifically, his obligation
to work solely for Duke.
i. Essential Function
“Under the ADA, ‘[a]n essential function is a fundamental job duty of the
position at issue. The term does not include marginal tasks, but may encompass
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individual or idiosyncratic characteristics of the job.’” Allen v. City of Raleigh, 140 F.
Supp. 3d 470, 482 (E.D.N.C. 2015) (quoting Jones v. Nationwide Life Ins. Co., 696
F.3d 78, 88 (1st Cir. 2012)) (alteration in original). “[C]onsideration shall be given to
the employer’s judgment as to what functions of the job are essential, and if an
employer has prepared a written job description before advertising or interviewing
applicants for the job, the description shall be considered evidence of the essential
functions of the job.” 42 U.S. C. § 12111(8). “[C]ourt[s] give[] a ‘significant degree’ of
deference to an employer’s business judgment about the necessities of a job.” Jones,
696 F.3d at 88 (quoting Jones v. Walgreen Co., 679 F.3d 9, 14 (1st Cir. 2012)).
Here, the Contract states that Plaintiff’s stipend from Duke “shall be the
Trainee’s sole source of compensation. Except for approved and authorized
extracurricular activities, the Trainee shall not accept from any other fee of any kind
for service.” First, Plaintiff argues that this is a limit on Defendant’s responsibility
to pay, rather than a limit on Plaintiff’s ability to work outside of the Program. We
disagree.
If Plaintiff’s reading was correct, the second sentence would be superfluous; if
the stipend language is simply a limit on Duke, there is no need to double down and
state that “Trainee shall not accept from any other fee of any kind for service.” See
United States v. Butler, 297 U.S. 1, 65, 56 S. Ct. 312, 319, 80 L. Ed. 477, 488 (1936)
(“These words cannot be meaningless, else they would not have been used.”); Kungys
v. United States, 485 U.S. 759, 778, 108 S. Ct. 1537, 1550, 99 L. Ed. 2d 839, 857 (1988)
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(plurality opinion) (stating that “no provision should be construed to be entirely
redundant”). Therefore, the Contract’s compensation language limited Plaintiff’s
ability to work outside of the Program because otherwise, the second sentence would
be redundant.
Second, we think adherence to this limitation was an “essential function” of
Plaintiff’s job. Defendants distilled this limitation to a contractual clause, which
tends to show the essential nature of the limitation. See 42 U.S.C. § 12111(8). Indeed,
if Plaintiff’s obligation to work solely for Duke was merely marginal, why include it
in the Contract? See id. Asked another way, would Defendants have allowed Plaintiff
into the Program if Plaintiff’s participation was contingent on his ability to
simultaneously work elsewhere? That Plaintiff lied to Defendants about driving for
Uber and renting his apartment is instructive. Because Plaintiff’s work limitation
was contractual, see id., and because we give “a ‘significant degree’ of deference to an
employer’s business judgment about the necessities of a job,” see Jones, 696 F.3d at
88, we think Plaintiff’s obligation to work solely for Duke was an essential function
of participating in the Program.
ii. Ability to Perform
Under the second prong of the qualified-individual analysis, we must discern
“whether any reasonable accommodation by [Defendants] would enable [P]laintiff” to
perform his essential functions. See Halpern, 669 F.3d at 462. The Fourth Circuit
has noted that “[a]n employee may be qualified when hired, but could fail either to
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maintain his qualifications or, more commonly, to meet his employer’s legitimate
expectations for job performance.” Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 514
(4th Cir. 2006). So in cases where an employee is fired, “the prima facie case requires
the employee to demonstrate ‘that he was “qualified” in the sense that he was doing
his job well enough to rule out the possibility that he was fired for inadequate job
performance, absolute or relative.” Id. at 514–15 (quoting Loeb v. Textron, Inc., 600
F.2d 1003, 1013 (1st Cir. 1979)).
Here, Plaintiff may have initially satisfied the essential function of working
solely for Duke while in the Program; because Defendants admitted Plaintiff into the
Program, Defendants must have thought so. But that is not the only inquiry. See id.
at 514. The inquiry is also whether Plaintiff “maintain[ed] his qualifications,” i.e.,
continued to honor his obligation to only work for Duke while in the Program.
The parties offer competing evidence concerning Plaintiff’s performance in the
Program—but the parties do not dispute that Plaintiff drove for Uber and rented his
apartment through AirBnB while working at Duke. Then Plaintiff lied to Defendants
about it. And relevant to our analysis, Defendants’ reasonable accommodation—
easing Plaintiff’s workload—would not “enable [P]laintiff to meet” his sole-income
commitment. See Halpern, 669 F.3d at 462. On the contrary, because Plaintiff’s work
hours were limited as an accommodation, he potentially had more time to drive for
Uber.
Because we defer to medical professionals to determine when a person is
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“qualified,” see id. at 463, we agree with Defendants concerning Plaintiff’s ability,
“with or without reasonable accommodation, [to] perform the essential functions of
the employment position,” see Wilson, 717 F.3d at 345. Put differently: Plaintiff did
not perform the essential function of working solely for Duke while in the Program,
and Defendants’ accommodation had no bearing and Plaintiff’s ability to do so. See
id. at 345.
Therefore, Plaintiff cannot establish an element a prima-facie discrimination
claim because he is not a “qualified individual.” See Jacobs, 780 F.3d at 572. As
Plaintiff cannot establish an element of prima-facie discrimination claim, the trial
court did not err by granting Defendants summary judgment because Defendants
were “entitled to a judgment as a matter of law.” See N.C. Gen. Stat. § 1A-1, Rule
56(c); Jacobs, 780 F.3d at 572.
b. Failure to Accommodate Claim
To establish a prima-facie failure-to-accommodate claim under the ADA,
Plaintiff must show: “(1) that he was an individual who had a disability within the
meaning of the statute; (2) that [Defendants] had notice of his disability; (3) that with
reasonable accommodation he could perform the essential functions of the position . .
. ; and (4) that [Defendants] refused to make such accommodations.” Wilson, 717 F.3d
at 345 (quoting Rhoads v. Fed. Deposit Ins. Corp., 257 F.3d 373, 387 n.11 (4th Cir.
2001)).
The ADA does not provide an all-inclusive definition of the term “reasonable
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accommodation.” Rather, it gives examples of what a “‘reasonable accommodation’
may include,” like “job restructuring, part-time or modified work schedules,
reassignment to a vacant position . . . and other similar accommodations.” 42 U.S.C.
§ 12111(9)(B). “[T]he range of reasonable accommodations is broad . . . .” Elledge v.
Lowe’s Home Ctrs., LLC, 979 F.3d 1004, 1011 (4th Cir. 2020).
The Fourth Circuit has explained that “what counts as a reasonable
accommodation is not an a priori matter but one that is sensitive to the particular
circumstances of the case.” Id. “[W]hat will serve as a reasonable accommodation in
a particular situation may not have a single solution, but rather, many possible
solutions.” Id. As long as the employer’s chosen accommodation is reasonable, “not
even a well-intentioned court may substitute its own judgment for the employer’s
choice.” Id. at 1012.
Here, Defendants granted Plaintiff’s accommodation request before
terminating his employment. Specifically, Defendants committed to Plaintiff that he
would not be “scheduled for more than 5 days in a row.” Plaintiff does not allege that
Defendants failed to meet their assurance, and “modified work schedules” are one of
the codified examples of a reasonable accommodation. See 42 U.S.C. § 12111(9)(B).
Plaintiff does not argue that Defendants’ accommodation was unreasonable.
Rather, Plaintiff argues that Defendants’ accommodation “was inconsequential . . .
because [they] intended to fire” him. Indeed, Plaintiff argues that Defendants “never
implemented the accommodations because they intended to terminate plaintiff
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instead.”
But if we accept Plaintiff’s argument, every employer who fires a qualified
individual after granting an accommodation is subject to a failure-to-accommodate
suit if the employee claims the employer ultimately intended to fire him. This cannot
be so. See Wilson, 717 F.3d at 345 (stating that the fourth element of a failure-to-
accommodate claim requires a refusal to make the accommodation). In our view,
Plaintiff’s argument may support a retaliation claim, but not failure to accommodate.
See id. Concerning Plaintiff’s failure-to-accommodate claim, the facts are clear:
Defendants granted Plaintiff’s accommodation request by promising not to schedule
him to work more than five consecutive days. Plaintiff does not allege that
Defendants broke this promise.
Accordingly, there is “no genuine issue” concerning the last element of
Plaintiff’s failure-to-accommodate claim. See id.; N.C. Gen. Stat. § 1A-1, Rule 56(c).
Therefore, the trial court appropriately granted Defendants summary judgment
concerning Plaintiff’s failure-to-accommodate claim because Defendants were
“entitled to a judgment as a matter of law.” See N.C. Gen. Stat. § 1A-1, Rule 56(c).
c. Retaliation Claim
To establish a prima-facie retaliation claim under the ADA, Plaintiff must
show: “(1) he engaged in protected conduct, (2) he suffered an adverse action, and (3)
a causal link exists between the protected conduct and the adverse action.” Reynolds
v. Am. Nat’l Red Cross, 701 F.3d 143, 154 (4th Cir. 2012) (citing A Soc’y Without a
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Name v. Virginia, 655 F.3d 342, 350 (4th Cir. 2011)). Here, there is no dispute about
whether Plaintiff engaged in protected conduct by seeking accommodations or
whether he suffered an adverse employment action when Defendants terminated him
from the Program. The parties only dispute whether there is a genuine issue
concerning a “causal link” between the two.
“A temporal connection between the protected conduct and the adverse
employment action may be sufficient to present a genuine factual issue on
retaliation.” Lamb v. Qualex, Inc., 33 F. App’x 49, 60 (4th Cir. 2002) (citing Kiel v.
Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999)). “Indeed, ‘[a] close
temporal connection between the two events is generally enough to satisfy the third
element of the prima facie test.’” Id. (quoting McClendon v. Ind. Sugars, Inc., 108
F.3d 789, 796–97 (7th Cir. 1997)).
Here, on 1 March 2017, Plaintiff completed Duke’s Reasonable Accommodation
Request Form concerning his depression. On 30 March 2017, Defendants terminated
Plaintiff’s employment because of “institutional policy violations.” In other words,
there was less than one month between “the protected conduct and the adverse
employment action,” which is usually “sufficient to present a genuine factual issue on
retaliation.” See id. Because we “must view the presented evidence in a light most
favorable to the nonmoving party,” see Dalton, 353 N.C. at 651, 548 S.E.2d at 707, we
believe the “causal link” element of Plaintiff’s prima-facie case is satisfied, see
Reynolds, 701 F.3d at 154.
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Therefore, the burden shifts to Defendants to show a “legitimate,
nondiscriminatory explanation which, if believed by the trier of fact, would support a
finding that unlawful discrimination was not the cause of the employment action.”
See Ennis, 53 F.3d at 58 (emphasis added). Accordingly, a question of material fact
remains, and the trial court erred by granting Defendants summary judgment
concerning Plaintiff’s retaliation claim. See N.C. Gen. Stat. § 1A-1, Rule 56(c).
B. Attorneys’ Fees
In his final argument, Plaintiff asserts that the trial court erred by denying
Plaintiff’s request for attorneys’ fees concerning his successful motion to compel. We
We review a trial court’s decision to award or deny attorneys’ fees under Rule
37 for abuse of discretion. Graham v. Rogers, 121 N.C. App. 460, 465, 466 S.E.2d 290,
294 (1996). “Abuse of discretion results where the court’s ruling is manifestly
unsupported by reason or is so arbitrary that it could not have been the result of a
reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).
Normally when a motion to compel is granted under Rule 37, the trial court
should award attorneys’ fees to the moving party. N.C. Gen. Stat. § 1A-1, Rule
37(a)(4) (2023). But a trial court need not award attorneys’ fees if “the court finds
that the opposition to the motion was substantially justified or that other
circumstances make an award of expenses unjust.” Id.
Here, there is nothing in the record to suggest that the trial court acted
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arbitrarily by denying Plaintiff’s request for attorneys’ fees concerning his successful
motion to compel. The trial court “considered arguments of counsel” and conducted
an in-depth, in-camera review of the documents for which Defendants claimed
privilege, and the trial court decided, in its discretion, not to award attorneys’ fees to
Plaintiff. The trial court’s decision was not “manifestly unsupported by reason,” and
therefore, the trial court did not abuse its discretion. See Hennis, 323 N.C. at 285,
372 S.E.2d at 527.
V. Conclusion
We conclude that the trial court erred in granting Defendants summary
judgment concerning Plaintiff’s breach-of-contract and ADA retaliation claims, but
the trial court did not err concerning the remainder of the summary-judgment order.
And the trial court did not err by declining to award Plaintiff attorneys’ fees
concerning his motion to compel. Accordingly, we reverse the trial court’s order in
part, affirm in part, and remand.
AFFIRMED in part, REVERSED in part, and REMANDED.
Judges COLLINS and WOOD concur.
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