Reed v. Buckeye Fire Equipment

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1481
RAMSEY REED,
Plaintiff - Appellant,
versus
BUCKEYE FIRE EQUIPMENT; BRYAN BOWER,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
Chief District Judge. (3:02-cv-00205)
Argued: May 23, 2007 Decided: July 30, 2007
Before KING and DUNCAN, Circuit Judges, and WILKINS, Senior Circuit
Judge.
Affirmed in part; reversed and remanded in part by unpublished per
curiam opinion.
ARGUED: Stephen Luke Largess, FERGUSON, STEIN, CHAMBERS, GRESHAM &
SUMTER, P.A., Charlotte, North Carolina, for Appellant. George
Bryan Adams, III, VAN HOY, REUTLINGER, ADAMS & DUNN, Charlotte,
North Carolina, for Appellees. ON BRIEF: Philip M. Van Hoy, VAN
HOY, REUTLINGER, ADAMS & DUNN, Charlotte, North Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ramsey Reed (“Appellant”) appeals the district court’s grant
of summary judgment in favor of Buckeye Fire Equipment Company
(“Buckeye”) and Bryan Bower (collectively, “Appellees”) on various
claims related to the termination of his employment on April 30,
2001. He alleges that, in firing him while he was on medical
leave, Buckeye violated the Family and Medical Leave Act (the
“FMLA”), 29 U.S.C. § 2601, et seq. and North Carolina’s prohibition
against age discrimination in employment, N.C. Gen. Stat. § 143-
422.2. He also alleges that Bryan Bower obstructed justice and
engaged in a civil conspiracy by attempting to blackmail him into
not filing this lawsuit.
The district court discerned no material issue of fact in any
of Appellant’s claims and granted summary judgment in favor of
Appellees on both the FMLA and state-law claims. Our review of the
record reveals, however, that Appellant has presented triable
issues in the claims against Buckeye and the obstruction of justice
claim against Bryan Bower. Accordingly, we reverse the district
court’s order on the FMLA, age discrimination and obstruction of
justice claims, and affirm on the civil-conspiracy claim. We set
forth the pertinent facts below, reciting them in the light most
favorable to Appellant. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986).
2
I.
Buckeye is a family-owned business headquartered in Kings
Mountain, North Carolina that manufactures and sells firefighting
equipment. Tom Bower and his two sons, Kevin and Bryan, own and
operate the company.
On January 25, 2001, Appellant was involved in a serious car
accident that necessitated medical leave. He suffered a severe
compound fracture to his leg that punctured his skin in several
places and required immediate surgery. Appellant was hospitalized
for several days following the surgery and underwent rehabilitative
therapy thereafter.
On the day of the accident, Appellant’s wife called Kevin
Bower, Buckeye’s Vice President of Operations, to inform him of her
husband’s accident and injury. Once Appellant was discharged from
the hospital, he also spoke with Kevin Bower and informed him that
he would require at least two months’ leave from work to recover.1
1
Buckeye advances a different account of its contact with
Appellant following his accident. According to Buckeye, Kevin
Bower spoke with Appellant on January 26, the day following his
accident, and followed up with a letter the same day. In the
letter, Kevin Bower informed Appellant that his leave fell under
the FMLA and he had up to twelve weeks to return to work “per our
discussion this morning.” J.A. 417. During discovery, Buckeye
produced an unsigned copy of this letter that bore a facsimile
stamp indicating that it had been sent from Tom Bower’s home office
on April 29, 2002, seven days after Appellant filed this suit.
Appellant contends that he did not talk with Kevin Bower on
January 26 and indeed could not have because of the painkillers he
was taking. He further asserts that he never received the letter
provided during discovery and that Buckeye forged it after the fact
to improve its legal position in this lawsuit. For purposes of
3
Appellant updated Kevin Bower from time to time regarding his
medical progress, which was steady until late-February.
On February 15, 2001, Buckeye’s maintenance manager, Howard
Corbin (“Corbin”), called Appellant to seek his help with several
equipment problems that had arisen during his absence. Appellant’s
doctor cleared him to return to work on a limited basis in a
wheelchair, and Appellant returned to Buckeye on February 23. He
fixed a problem with an automated label machine and taught the
maintenance crew how to resolve it in his absence. For a variety
of reasons, however, Appellant had to delay fixing a separate
problem with a gauge assembly machine until the following week.
Over the intervening weekend, Appellant was hospitalized for
treatment of a serious blood clot in his leg. He remained in the
hospital for two days and was placed on blood-thinning medication
before being discharged with an order to remain homebound for six
weeks. Appellant spoke with Buckeye’s comptroller about this
setback, but was unsuccessful in several attempts to reach Kevin
Bower about the same.
Following treatment for the blood clot, Appellant’s recovery
continued at a steady pace. By the end of March 2001, he was using
a walker, was cleared by his doctors to leave his house, and was
receiving outpatient physical therapy. By mid-April, he was
reviewing the motion for summary judgment, we assume, as did the
district court, that Appellant did not receive the letter in
question.
4
walking with a cane and had purchased a new truck in preparation
for his return to work. On April 17, Appellant told Corbin that he
would return to Buckeye full-time on May 7. However, Tom Bower
called Appellant on April 30 to tell him that Buckeye was
terminating his employment for performance-related reasons. By
that time, Appellant had been on medical leave for nearly thirteen-
and-a-half weeks.
A. Contested Workplace Issues
The parties dispute virtually every material fact underlying
Appellant’s termination. To substantiate its claim of inadequate
job performance, Buckeye points to a number of equipment problems
arising both during and after Appellant’s tenure, a change in
Appellant’s job title in 1996, and a series of personal conduct
issues. Appellant disputes the significance of the equipment
problems, contests Buckeye’s characterization of the change in job
title, and challenges the claims of unprofessional conduct. We now
briefly summarize each episode in contention and the nature of the
dispute.
1. The Weld Line
In 1997, Buckeye contracted with a local manufacturer, Sotec,
to develop a weld line to automate the production of its fire
extinguisher cylinders. Tom Bower wanted the automated line to
produce two hundred forty welded cylinders per hour and pay for
itself within three years. Sotec agreed to Buckeye’s design
5
specifications and promised to deliver the weld line within twenty
to twenty-two weeks.
Appellant, as Buckeye’s head engineer, spent significant time
at Sotec’s plant working closely with its personnel during the
production and testing phase of the line. The project experienced
technical problems and the line remained nonfunctional after
eighteen months, far beyond the contractual time frame. Buckeye
contends that Appellant failed to keep it fully informed of these
problems. Kevin Bower eventually grew so frustrated with Sotec
that he ordered the line moved to Buckeye’s facilities for
completion. It became apparent that even then the weld line could
not meet the expectations of Buckeye’s management.
Buckeye contends that Appellant was principally responsible
for this project and that its problematic history, along with his
lack of communication regarding the problems during the line’s
construction, is evidence of his poor job performance. Appellant
argues that the problems with the weld line lay in its
construction, which was Sotec’s responsibility, and not in the
design that he developed. He additionally contends that he kept
Buckeye fully apprised of the project’s status and that he was not
principally responsible for the weld line.
2. Gauge Assembly Machine
Sometime in either 1996 or 1999 (Appellant claims the former
and Buckeye the latter), Buckeye purchased a machine to automate
6
the gauge assembly for its fire extinguishers. The machine never
functioned properly because of design flaws attributable to the
original manufacturer. As a result, Buckeye required the
manufacturer to redesign and rebuild parts of the machine. The
machine’s laser sensors proved particularly troublesome, requiring
constant manual adjustment. When Appellant was on medical leave,
the gauge assembly machine began malfunctioning, with expensive
consequences.
Buckeye contends that these events reflect poorly on
Appellant’s performance because he selected the laser sensors and
was responsible for the project. Appellant contends that he played
no role in the machine’s poor design and was able to circumvent it
with manual adjustments that kept the machine running for more than
five years. He further attributes the need for costly repairs to
the damage caused by maintenance workers’ maladroit attempts to
perform manual adjustments in his absence.
3. Automated Labeling Machine
In 1997, Buckeye purchased an automation line that was
designed to fill fire extinguishers with a dry chemical. Appellant
convinced Tom Bower to add a $65,000 component to the line that
automatically applied labels to the fire extinguishers. Buckeye
claims that this machine never worked properly and that it was on
the verge of purchasing a new labeling machine for $20,000 at the
time the parties were conducting discovery in this lawsuit.
7
Appellant counters that the machine worked perfectly for a year or
more and only ran into problems when Buckeye switched to a cheaper
label that was not compatible with the machine.
4. Box Assembly Machine
In 2000, Buckeye installed a machine in its automated cylinder
fill line to assemble boxes in which to ship fire extinguishers.
However, the boxes did not stay closed properly, resulting in
extinguishers falling out and generating customer complaints.
Buckeye claims that Appellant had primary responsibility for
installing the machine and ensuring that it was operational, and
that it did not work properly until several years after Appellant’s
termination. Appellant responds that the problem involved the use
of a glue that did not dry quickly enough in warm weather and was
corrected before he was fired by using a different type of glue.
5. Change in Appellant’s Job Title
Buckeye hired Appellant in 1994 as General Manager. The
parties dispute, however, whether Appellant ever exercised
authority commensurate with the title. Buckeye asserts that
Appellant supervised both manufacturing and engineering operations
of the company and had eighty-five employees reporting to him.
Appellant argues that he was relegated to a subordinate role devoid
of the autonomous power or managerial responsibility that Buckeye
now claims.
8
In any event, the parties agree that Buckeye changed
Appellant’s job title to Head of Engineering in 1996 in the
reshuffling that followed the retirement of Buckeye’s chief
engineer and president. In this capacity, Appellant was to
supervise “product development, engineering changes of existing
products and all installation of new machinery to automate
manufacturing operations.” J.A. 431. Buckeye characterizes the
change as a demotion; rather than exercising responsibility for all
plant management, Appellant was limited to supervising plant
operations involving automation, and his direct reports were
reduced from eighty-five to one. Appellant maintains that the
adjustment simply realigned his title with his actual
responsibilities.
Although Appellant initially resisted the change in positions,
he eventually acceded to it. Buckeye gave him a $2,000 salary
increase and issued a positively-worded announcement to all of the
company’s employees. Buckeye claims that the salary increase was
an inducement for Appellant to stay with the company and the
announcement was intended to spare him embarrassment.
6. Appellant’s Personal Habits
Buckeye contends that Appellant’s personal habits and
professional demeanor caused problems in the workplace.
Specifically, it claims that: (1) Appellant violated its policy on
smoking breaks by frequently leaving the plant floor, in full view
9
of other employees, to smoke; (2) it received complaints that
Appellant left work early, arrived late, and was often visibly
hungover; and (3) Appellant bragged about his gambling exploits and
waived wads of cash around in front of hourly employees who earned
less then he. Buckeye claims that it warned Appellant about this
behavior on numerous occasions. Although there was no record of
any warnings in Appellant’s file, Buckeye states that it was
company policy not to reprimand managers in writing. Appellant
disputes the allegations. He claims to have stopped smoking before
the alleged smoke breaks, that he never received negative feedback
from his supervisors, and that his behavior did not differ in any
significant respect from that of others at the plant.
B. Bryan Bower’s Alleged Threat
After Appellant’s termination, he sent a demand letter to Tom
Bower seeking monetary damages and reinstatement in settlement of
his claims. He further offered to forego reinstatement if Buckeye
paid him roughly two years’ salary and provided a good letter of
reference. Tom Bower turned the letter over to Bryan Bower, who
handled most of Buckeye’s legal matters. Before responding, Bryan
searched through Appellant’s personal effects at the plant and
discovered romantic correspondence sent to Appellant by a woman to
whom he was not married. Bryan brought this note to his father’s
attention.
10
A subsequent phone call between Appellant and Bryan Bower is
another source of significant dispute. Appellant alleges that
Bryan, acting at his father’s behest, tried to blackmail him by
threatening to reveal the correspondence to Appellant’s wife if he
proceeded with this lawsuit. Bryan claims that he called Appellant
to attempt to resolve this dispute amicably, and neither made
threats nor discussed doing so with anyone. He acknowledges
mentioning the letter to Appellant, but only to ask Appellant to
have his girlfriend stop sending correspondence to Buckeye.
C. Trial Court Proceedings
Appellant filed suit alleging that Buckeye violated the FMLA
by terminating him while he was on medical leave, and engaged in
unlawful age discrimination by transferring his job
responsibilities to younger workers after firing him. Appellant
further alleged that Bryan Bower engaged in civil conspiracy and
obstruction of justice by attempting, at Tom Bower’s behest, to
blackmail him into foregoing suit. Appellees moved for summary
judgment on all claims, which the district court granted. See Reed
v. Buckeye Fire Equip. Co., 422 F. Supp. 2d 570, 572 (W.D.N.C.
2006). Appellant timely appealed.
II.
We review de novo an appeal from a grant of summary judgment
and apply the same standard as the district court. Howard v.
11
Winter, 446 F.3d 559, 565 (4th Cir. 2006). Summary judgment is
only appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(c). A genuine issue of
material fact exists “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Liberty
Lobby, 477 U.S. at 248. We must construe the facts in a light most
favorable to Appellant as the nonmoving party. See id. at 255.
Guided by these principles, we turn to a consideration of
Appellant’s arguments.
A.
First, Appellant challenges the district court’s grant of
summary judgment on his FMLA claim. He alleges that Buckeye
violated the FMLA by failing to provide him with the required
notice of his rights thereunder. He contends that such failure is
actionable because it both interfered with and caused prejudice to
his FMLA rights by depriving him of the knowledge that, in order to
avoid losing his job, he needed to return to work within the twelve
weeks of protected leave. He claims that if he had received the
required notice, he could have structured his medical care to
return within this time frame and consequently would not have been
fired by Buckeye. Buckeye counters that it provided the required
12
notice and regardless terminated Appellant for reasons unrelated to
his medical leave.
In its summary judgment analysis, the district court presumed
that Buckeye failed to send Appellant the required notice, thereby
interfering with his FMLA rights. However, the district court
granted Buckeye’s motion for summary judgment after concluding that
any such lack of notice did not prejudice Appellant’s right to
return to his job because Buckeye fired him for reasons independent
of his medical leave. We must disagree. We are constrained on
this record to find sufficient factual disputes to preclude summary
judgment.
Congress passed the FMLA to provide workers flexibility in
managing their work and family responsibilities by guaranteeing
reasonable medical leave in certain circumstances. See 29 U.S.C.
§ 2601(b). An “eligible employee” has the right to take up to
twelve weeks’ leave from work during any twelve-month period
“[b]ecause of a serious health condition that makes the employee
unable to perform the functions of” his or her job.2 29 U.S.C. §
2612(a)(1)(D). The employee has an accompanying right to return to
the same or an equivalent position at the conclusion of the leave
2
It is uncontested that Appellant qualifies as an “eligible
employee,” see 29 U.S.C. § 2611(2) (definition of “eligible
employee”), and that his injuries constituted a “serious health
condition” that impeded his ability to perform his job, see 29
U.S.C. § 2611(11) (definition of “serious health condition”).
13
period.3 29 U.S.C. § 2614(a)(1).
The right to reinstatement following FMLA leave is not
unqualified. 29 U.S.C. § 2614(a)(3)(B); See Also Yashenko v.
Harrah’s NC Casino Co., LLC, 446 F.3d 541, 547 (4th Cir. 2006).
“An employee has no greater right to reinstatement . . . than if
the employee had been continuously employed during the FMLA leave
period.” 29 C.F.R. § 825.216(a). In other words, the mere fact
that an employee takes leave under FMLA offers no protection from
decisions adversely affecting employment status.
The FMLA requires an employer to provide an employee
requesting leave notice of his or her rights within a reasonable
time, “one or two business days [after the request] if feasible.”
29 C.F.R. § 825.301(c). If the employer learns of the employee’s
need after the leave has commenced, “notice should be mailed to the
employee’s address of record.” Id. Such notice should include, as
appropriate, indication “that the leave will be counted against the
employee’s annual” twelve weeks of leave protected by the FMLA, 29
C.F.R. § 825.301(b)(1)(I), and that the employee has the “right to
restoration to the same or an equivalent job upon return” to work,
29 C.F.R. § 825.301(b)(1)(vii).
An employer who prevents or impedes an employee from
exercising his or her FMLA rights is liable to the employee for, as
3
There are narrow exceptions to this reinstatement requirement
that are not applicable here. See § 2614(b).
14
appropriate, damages and equitable relief. 29 U.S.C. §§ 2615(a),
2617(a). To state such a claim, the employee must prove that the
employer: (1) interfered with his or her exercise of FMLA rights;
and (2) caused prejudice thereby. Ragsdale v. Wolverine World
Wide, Inc., 535 U.S. 81, 89 (2002). Actionable interference exists
where the employer impedes, restrains, or denies the exercise of
any rights protected the FMLA. 29 C.F.R. § 825.220(a). Prejudice
exists where an employee loses compensation or benefits “by reason
of the violation,” 29 U.S.C. § 2617(a)(1)(A)(i)(I); sustains other
monetary losses “as a direct result of the violation,” §
2617(a)(1)(A)(i)(II); or suffers some loss in employment status
remediable through “appropriate” equitable relief, § 2617(a)(1)(B).
We consider each of these elements in turn.
With respect to the interference prong, the district court
assumed that Buckeye interfered with Appellant’s FMLA rights by
failing to provide the required notice. Buckeye contends that it
satisfied its notice obligations by mailing a letter to Appellant
on January 26, 2001 that apprised him of his FMLA rights and the
twelve-week limit on his medical leave. Appellant responds that
Buckeye neither sent this letter nor otherwise provided notice of
his rights. The evidence in the record is both ambiguous and
disputed. Viewed in the light most favorable to Appellant, we must
15
presume that Buckeye did not send the letter4 and therefore failed
to satisfy 29 C.F.R. § 825.301(c).5 Such failure constitutes
actionable interference. See 29 C.F.R. § 825.220(b) (“Any
violations of the [FMLA] or of [its governing] regulations
constitute interfering with . . . the exercise of rights provided
by the [FMLA].”).
4
We decline to address Appellant’s request to sanction Buckeye
for allegedly falsifying the January 26 letter. Before the
district court, Appellant raised the specter of manufactured
evidence, but he did not formally request the sanctions that he now
seeks. The district court sharply rebuked Appellant for his
allegations of impropriety, but did not have occasion to address
them in the context of a formal request for sanctions. Although
the district court’s opinion leaves no doubt of its view of
Appellant’s allegations, it would be inappropriate for us to
address this issue in the first instance. See Muth v. United
States, 1 F.3d 246, 250 (4th Cir. 1993) (court generally declines
to hear issues raised for the first time on appeal absent plain
error or fundamental miscarriage of justice).
5
We find no merit in Buckeye’s assertion that its duty to
provide notice was either satisfied or obviated by Appellant’s
independent awareness of and access to information about the FMLA.
The regulations governing the FMLA clearly indicate that an
employer must provide the notice set forth in 29 C.F.R. §
825.301(b) when it learns of an employee’s need to take leave. See
29 C.F.R. § 825.301(c). This requirement is worded as an
imperative--“notice shall be given”--that does not take account of
what the employee may know or have access to or any notice
previously supplied by the employer. See id. Therefore, what
Appellant may have known or had access to is immaterial to the
question of whether Buckeye satisfied its obligation to provide
notice under § 825.301(c).
Further, the circumstances of this case demonstrate the
utility of this notice requirement. Despite the fact that
Appellant was aware of the FMLA, knew that Buckeye had a FMLA
policy, and had access to various information about FMLA’s
protections, he did not know that FMLA applied either to his job
position in general or specifically to the medical leave at issue
here. The notice required by § 825.301(c) would have disabused him
of both misconceptions.
16
We therefore consider whether Appellant has adduced sufficient
evidence to survive summary judgment that such interference
prejudiced him. Buckeye contends that Appellant was a substandard
employee whom it had considered firing long before his FMLA leave
and whom it ultimately fired for poor job performance. Appellant
argues that there are numerous disputes about the underlying facts,
and that the district court erred by resolving those disputes in
Buckeye’s favor. Viewing the evidence in a light most favorable to
Appellant, we must agree.
To substantiate its claims of poor job performance, Buckeye
points to a series of operational problems with projects on which
Appellant worked, certain of his personal habits, and aspects of
his employment history. Appellant, however, has responded with
evidence that calls each incident into legitimate dispute. For
example, Buckeye argues that Appellant was responsible for the
problematic development and implementation of the weld line because
of his close involvement in its design and construction. However,
other evidence suggests that the problems with the line stemmed
from the manufacturer’s decision to use inadequate construction
materials. Viewing these facts in Appellant’s favor, we cannot
conclude as a matter of law that this incident is demonstrative of
his alleged poor job performance.
Similar factual disputes exist for each of the other incidents
at issue. With respect to the gauge assembly machine, Buckeye
17
argues that Appellant equipped the machine with a poorly
functioning laser sensor that required constant manual adjustment
and eventual replacement at a significant cost. Other evidence
suggests that, until he went on medical leave, Appellant was able
to keep the machine running despite problems caused by the original
manufacturer’s poor design. With respect to the box assembly
machine, Buckeye contends that Appellant selected a faulty machine
that could not assemble boxes properly. Other evidence suggests
that the problem with the machine was easily resolved when a new
type of glue was used to seal the assembled boxes. With respect to
the label machine, Buckeye contends that Appellant selected a
faulty machine that could not properly apply labels. Other
evidence suggests that the machine functioned properly until
Buckeye switched to a less expensive label that was not fully
compatible with the machine.
Buckeye’s contentions regarding Appellant’s personal habits
and employment history remain in similar dispute. Buckeye asserts
that Appellant took excessive smoking breaks, but other evidence
suggests that he had quit smoking before these alleged incidents.
Buckeye asserts that it repeatedly warned Appellant about
inappropriate behavior around the other employees, but there is no
documentary evidence to substantiate this assertion, which
Appellant disputes. Buckeye asserts that it demoted Appellant from
General Manager to Head of Engineering in 1996, but other evidence
18
suggests that Appellant’s job duties were relatively consistent
throughout his employment.
Ultimately, Buckeye has not adduced sufficient undisputed
facts to demonstrate that it fired Appellant solely for reasons of
job performance. We cannot conclude, at this stage of the
proceedings, that Buckeye’s failure to provide notice did not
prejudice Appellant’s right to reinstatement under the FMLA.
Because Buckeye has not demonstrated an absence of a material issue
of fact regarding either element of Appellant’s FMLA claim, summary
judgment is inappropriate.
B.
Next, Appellant challenges the district court’s grant of
summary judgment on his claim for age discrimination. The public
policy of North Carolina, as stated in N.C. Gen. Stat. § 143-422.2,
prohibits employers from discriminating against their employees on
the basis of age. In implementing this policy, North Carolina
courts follow the evidentiary standards and principles of law
applied to federal discrimination claims. N.C. Dept. of Correction
v. Gibson, 301 S.E.2d 78, 85 (N.C. 1983). The federal Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.,
governs claims of age-based discrimination.
Because Appellant does not put forth any direct or
circumstantial evidence of discrimination, we analyze his claim
under the burden-shifting framework set forth in McDonnell Douglas
19
Corp. v. Green, 411 U.S. 792 (1973). See Laber v. Harvey, 438 F.3d
404, 430 (4th Cir. 2006). Under this framework, Appellant has the
initial burden of proving a prima facie case of discrimination.
Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285
(4th Cir. 2004). For purposes of the ADEA, Appellant must show
that: (1) he was in the protected age group (i.e., over the age of
forty); (2) he was discharged; (3) his job performance met the
legitimate expectations of his employer at the time he was fired;
and (4) he was replaced by an individual that was substantially
younger. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
142 (2000).
If Appellant is able to establish each of these elements, the
burden then shifts to Buckeye “to articulate a legitimate,
nondiscriminatory reason for the adverse employment action,” Hill,
354 F.3d at 285. If Buckeye carries this burden, Appellant must
then show that the “proffered permissible reason . . . is actually
a pretext for discrimination,” id. Specifically, Appellant must
“prove by a preponderance of the evidence that the legitimate
reasons offered by [Buckeye] were not its true reasons, but were a
pretext for discrimination.” Reeves, 530 U.S. at 143 (internal
quotations omitted).
We turn first to Appellant’s prima facie case of
discrimination. He easily satisfies the first two elements because
it is undisputed (1) that he was over the age of forty when he lost
20
his job and (2) that Buckeye fired him. Viewing the facts in the
light most favorable to him, as we must at this juncture, we
believe that Appellant satisfies the third and fourth elements as
well.
With respect to the third element, for summary judgment
purposes there is sufficient evidence to establish that Appellant
was meeting Buckeye’s legitimate expectations when he was
terminated. Buckeye continuously employed Appellant at a high
level of its organization for nearly seven years, and granted him
several raises and bonuses during that time. Buckeye gave him
significant responsibility for designing, procuring, supervising,
troubleshooting, and repairing critical components of the
manufacturing infrastructure for its most important products.
There is no documentation of any of the alleged problems with
Appellant’s performance or work habits. Therefore, we find that
there is at least a triable issue of fact in this regard.
We likewise conclude that Appellant has adduced sufficient
evidence to establish that Buckeye transferred his job duties to
younger workers. Appellant, who was 55-years-old when fired by
Buckeye, contends that Buckeye transferred some of his job duties
to John Classic, a 45-year-old6 employee, and outsourced other of
6
The fact that Classic is also in the class protected by the
ADEA is not material. The Supreme Court has held that the ADEA
does not require an employee in the protected class to lose his job
to someone outside the protected class in order to state a claim.
O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312 (1996).
21
his job duties before hiring Bill Besco, aged forty, to head
engineering. Buckeye responds that it eliminated Appellant’s
position, that John Classic’s duties were materially distinct from
Appellant’s, and that it did not hire a new head of engineering
until several years later. There is evidence, however, to refute
this characterization. For example, Appellant presented evidence
that, after he was fired, Classic assumed certain of Appellant’s
previous duties as liaison to a third-party testing laboratory. In
addition, it is undisputed that Buckeye eventually hired a 40-year-
old as an engineer. Construing these facts in Appellant’s favor,
we find sufficient evidence to satisfy the fourth element of his
ADEA claim.
Because Appellant has established a prima facie case of age
discrimination, we turn to Buckeye’s proffered legitimate
nondiscriminatory reason for his firing. Buckeye’s repeated
assertion that it terminated Appellant for poor job performance,
based on the same operational problems and personal habits
underlying its defense of his FMLA claim, is insufficient for the
reasons stated heretofore. Regardless of the relative strength or
weakness of Appellant’s claims, there remain too many disputed
issues of material fact to warrant an award of summary judgment.
Rather, the essential point is that the plaintiff “lost out because
of his [or her] age.” Id. (emphasis omitted).
22
C.
Appellant next challenges the district court’s grant of
summary judgment in favor of Bryan Bower on the claims of civil
conspiracy and obstruction of justice. Appellant based these
claims on Bryan Bower’s alleged threat, allegedly made at Tom
Bower’s behest, to reveal Appellant’s affair to his wife if he
filed this lawsuit. We consider the civil conspiracy and
obstruction of justice causes of action separately.
1.
To state a claim for civil conspiracy under North Carolina
law, a plaintiff must prove, inter alia, an agreement between two
or more individuals to engage in an unlawful act or to accomplish
a lawful act in an unlawful manner. Lenzer v. Flaherty, 418 S.E.2d
276, 284-85 (N.C. Ct. App. 1992). “[T]he evidence of the agreement
must be sufficient to create more than a suspicion or conjecture in
order to justify submission of the issue to a jury.” Dickens v.
Puryear, 276 S.E.2d 325, 337 (N.C. 1981). The district court here
concluded that Appellant’s civil conspiracy failed because there
was no evidence of an illicit agreement, and we agree.
Appellant has presented no evidence to create anything more
than “a suspicion or conjecture” that Bryan Bower entered an
illicit agreement to blackmail him into foregoing this lawsuit.
Id. Appellant argues that we can infer such an agreement from the
facts that (1) Bryan Bower made the alleged threat after Tom Bower
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asked him to handle Appellant’s demand letter, and (2) Bryan Bower
brought the romantic correspondence to his father’s attention
before using it to attempt to blackmail Appellant. Such an
inference, however, exceeds even the generous construction of the
facts to which Appellant is entitled. There is no factual basis in
the record to suggest that the Bowers ever discussed blackmailing
Appellant, much less reached an agreement do so. Therefore,
Appellant’s conspiracy claim must fail.
2.
In North Carolina, it is a common-law civil offense “to do any
act which prevents, obstructs, impedes or hinders public or legal
justice.” Broughton v. McClatchy Newspapers, Inc., 588 S.E.2d 20,
30 (N.C. Ct. App. 2003) (internal citations omitted). In
Broughton, the North Carolina Court of Appeals affirmed summary
judgment on an obstruction-of-justice claim because the “plaintiff
presented no evidence that her case was in some way judicially
prevented, obstructed, impeded or hindered by the acts of [the]
defendants.” Id. Here, the district court relied on Broughton in
holding that Appellant’s obstruction-of-justice claim failed
because there was no evidence that Bryan Bower’s alleged threat
impeded or hindered this lawsuit. See Reed, 422 F. Supp. 2d at
588-89.
Despite the somewhat cursory conclusion in Broughton, however,
there are other North Carolina decisions finding a legally
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sufficient claim where the defendant attempted to prevent,
obstruct, impede, or hinder justice. See e.g., Burgess v. Busby,
544 S.E.2d 4, 12-13 (N.C. Ct. App. 2001) (upholding obstruction
claim relating to medical malpractice case where the names of
jurors were circulated by defendant to hospital staff after jury
found for injured patient); In re Kivett, 309 S.E.2d 442, 462 (N.C.
1983) (finding judge removable for obstruction of justice where he
unsuccessfully called on another judge to delay grand jury
investigation); see also Jackson v. Blue Dolphin Commc’ns of N.C.,
226 F. Supp. 2d 785, 794 (W.D.N.C. 2002) (upholding obstruction
claim where defendant fired plaintiff-employee after she refused to
give false testimony in an unrelated proceeding); State v. Rogers,
315 S.E.2d 492, 512-13 (N.C. Ct. App. 1984) (finding sufficient
evidence to sustain a conviction of an attorney for attempting to
interfere with a witness where the attorney engaged in overt acts
designed to induce a witness to leave court so that the attorney
could obtain a dismissal of the charges against his client).
We note, as well, that the North Carolina General Statutes
setting forth specific crimes under the heading of Obstructing
Justice also focus on the acts or attempted acts of the alleged
obstructor, rather than the reaction of the victim. See e.g. N.C.
Gen. Stat. § 14-226 (“If any person shall . . . intimidate or
attempt to intimidate any person who is . . . a witness in any
[state court], or prevent or deter, or attempt to prevent or deter
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any person . . . acting as such witness from attendance upon such
court, he shall be guilty of a Class H felony.” (emphasis added)).
Based on our review of the precedent, we conclude that summary
judgment was inappropriate here as well. Taking Appellant’s
allegation as true, Bryan Bower’s action in threatening to reveal
compromising correspondence to Appellant’s wife if he proceeded
with this lawsuit was so designed to impede his access to the legal
system as to support a claim of obstruction of justice under North
Carolina law.
III.
Based on the foregoing, we reverse the district court’s order
granting summary judgment in favor of Appellees Buckeye Fire
Equipment Company and Bryan Bower on Appellant Ramsey Reed’s FMLA,
age-discrimination, and obstruction of justice claims, and remand
to the district court for further proceedings. We affirm the
district court’s grant of summary judgment in favor of Appellee
Bryan Bower on Appellant’s claim of civil conspiracy.
AFFIRMED IN PART;
REVERSED AND REMANDED IN PART
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