Nguyen v. Austin Quality Foods, Inc.

Citation974 F.Supp.2d 879
Decision Date24 September 2013
Docket NumberNo. 5:12–CV–00049–FL.,5:12–CV–00049–FL.
CourtUnited States District Courts. 4th Circuit. Eastern District of North Carolina
PartiesTUAN H. NGUYEN, Plaintiff, v. AUSTIN QUALITY FOODS, INC.; Keebler Company, Inc.; and Kellogg Company, Defendants.

974 F.Supp.2d 879

TUAN H. NGUYEN, Plaintiff,
AUSTIN QUALITY FOODS, INC.; Keebler Company, Inc.; and Kellogg Company, Defendants.

No. 5:12–CV–00049–FL.

United States District Court,
E.D. North Carolina,
Western Division.

Sept. 24, 2013.

[974 F.Supp.2d 881]

Beatrice Joan Davis, Robert Henry Jessup, IV, Howard, Stallings, From & Hutson P.A., Raleigh, NC, for Plaintiff.

Kimberly Joyce Lehman, Robert A. Sar, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Raleigh, NC, for Defendants.


LOUISE W. FLANAGAN, District Judge.

This matter comes before the court on defendants' motion for summary judgment (DE 21). Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), United States Magistrate Judge Robert B. Jones, Jr. entered a memorandum and recommendation (“M & R”) wherein it is recommended that the court grant defendants' motion. Plaintiff filed objections to the M & R, to which defendants responded. In this posture, the issues raised are ripe for ruling. For the reasons that follow, the court grants defendants' motion for summary judgment.


On January 5, 2012, plaintiff filed complaint in the Wake County Superior Court alleging defendants terminated his employment in violation of the North Carolina Retaliatory Employment Discrimination Act (“REDA”), N.C. Gen.Stat. § 95–240 et seq., and North Carolina public policy. Plaintiff also alleges he was discriminated against on the basis of his disability, race, and national origin, in violation of North Carolina public policy.

Defendants timely removed this action to this court on the basis of diversity of citizenship jurisdiction. On February 16, 2012, defendants filed answer, generally denying the allegations and raising several affirmative defenses, including that plaintiff was terminated for legitimate, non-discriminatory reasons. After a period of discovery, on January 31, 2013, defendants filed the instant motion for summary judgment wherein they seek dismissal of all of plaintiff's claims. Defendants rely on depositions, sworn declarations, and business records, including an employee handbook, in support of the motion for summary judgment.

Plaintiff defends against the instant motion with reliance on depositions, sworn affidavits, and defendants' business records, including employment records of plaintiff, letters written by defendants' human resource manager and in-house counsel, and notice of termination of compensation by reason of trial return to work form as filed with the North Carolina Industrial Commission.


The following is undisputed. Plaintiff began working as a temporary employee at defendants' manufacturing plant in Cary, North Carolina (the “plant”) in 2006, and he was hired in a permanent capacity in August 2007. During the time frame at issue in this case, plaintiff operated a machine that assembled peanut butter sandwich crackers. Plaintiff routinely placed pieces of cardboard (“slip sheets”) under the machine to collect dripping peanut butter to facilitate the cleaning process.

On July 13, 2009, plaintiff suffered a work-related injury when he reached into the machine to straighten or pat down a corner of the slip sheet. Plaintiff's left hand was caught in the machine, resulting in the partial amputation of three fingers.

On July 15, 2009, plaintiff filed a workers' compensation claim, and he received benefits until August 16, 2009, when his doctor approved his return to light duty work on a trial basis. On August 17, 2009, plaintiff returned to the plant and had a

[974 F.Supp.2d 882]

meeting with the plant's safety manager, human resources manager, and a co-worker, who served as a translator. At that meeting, plaintiff was suspended pending further investigation.

On August 27, 2009, defendants terminated plaintiff's employment. On that date, defendants prepared a separation form, indicating violation of the plant's rules and policies as the reason for termination. Subsequent letters from defendants to plaintiff stated the reason for termination was violation of the plant's rules and policies, specifically lockout/tagout policy.

A. Standard of Review

Summary judgment is appropriate where an examination of the pleadings, affidavits, and other proper discovery materials before the court demonstrates “that 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 also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (holding that a factual dispute is “material” only if it might affect the outcome of the suit and “genuine” only if there is sufficient evidence for a reasonable jury to find for the non-moving party).

The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden, the non-moving party must then “set forth specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In making a determination on a summary judgment motion, the court views the evidence “in the light most favorable to the party opposing the motion”, granting that party the benefit of all reasonable inferences. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); see also Matsushita, 475 U.S. at 588, 106 S.Ct. 1348.

The district court reviews de novo those portions of a magistrate judge's M & R to which specific objections are filed. 28 U.S.C. § 636(b). The court does not perform a de novo review where a party makes only “general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982). Absent a specific and timely filed objection, the court reviews only for “clear error,” and need not give any explanation for adopting the M & R. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir.2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983). Upon careful review of the record, “the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

B. REDA Claim

REDA prohibits discrimination or retaliation against an employee for, inter alia, filing a workers' compensation claim. N.C. Gen.Stat. § 95–241(a)(1). To state a claim under REDA, a plaintiff must show that

(1) he exercised his right to engage in protected activity, such as filing a workers' compensation claim; (2) he suffered an adverse employment action; and (3) a causal connection exists between the exercise of the protected activity and the

[974 F.Supp.2d 883]

alleged retaliatory action. If the plaintiff has established a prima facie case of retaliatory termination, the burden shifts to the defendant to show that it would have taken the same unfavorable action in the absence of the protected activity of the employee.

Edwards v. PCS Phosphate Co., Inc., 812 F.Supp.2d 689, 693 (E.D.N.C.2011) (citations omitted). Once defendant meets its burden, plaintiff must demonstrate that the proffered non-discriminatory reason was actually pretext for discrimination. Lilly v. Mastec N. Am., Inc., 302 F.Supp.2d 471, 481 (M.D.N.C.2004).1

Plaintiff alleges he was terminated for filing a workers' compensation claim. There is no dispute that plaintiff has satisfied the first two elements of a REDA claim. However, defendants contend plaintiff has failed to establish the third element of a prima facie case, a causal connection between the filing of his claim and his termination. The causal connection element can be satisfied by a showing of close temporal proximity between the exercise of the protected activity and the alleged retaliatory employment action, or a pattern of conduct. Smith v. Computer Task Group, Inc., 568 F.Supp.2d 603, 614 (M.D.N.C.2008) (citations omitted). In addition, a plaintiff may present “direct and circumstantial evidence of causation or non-causation.” Edwards, 812 F.Supp.2d at 695;see Lilly, 302 F.Supp.2d at 483–84.

Plaintiff makes three objections to the M & R. First, plaintiff argues the magistrate judge erred in finding no close temporal proximity between the exercise of the protected activity and the adverse employment action. Second, plaintiff argues the magistrate judge erred in finding there was no pattern of retaliatory conduct for purposes of the prima facie case. Third, plaintiff argues the magistrate judge erred in finding defendants' proffered legitimate, non-discriminatory reason for the adverse employment action was not pretextual.

1. Close Temporal Proximity

“Courts have established the general parameters of temporal proximity for purposes of REDA on a case-by-case basis. At one extreme, courts have found a time period of approximately one month or less to constitute close temporal proximity.” Smith, 568 F.Supp.2d at 614 (citations omitted). Under these circumstances, close temporal proximity may be sufficient alone to establish the requisite “causal connection element of the prima facie case under REDA”. Id. at 614 n. 12 (citations omitted). “At the other extreme, courts have held a time period of more than two and one-half months to constitute the absence of close temporal proximity.” Id. at 614 (citations omitted). When the time period between the protected activity and adverse employment action is greater than two and one-half months, courts have considered temporal proximity in addition to direct and circumstantial evidence of causation. See Edwards, 812 F.Supp.2d at 695. “A grey area appears to exist for periods between...

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