Wiley v. United Parcel Service, Inc., COA03-516.

• Decision Date: 04 May 2004
• Docket Number: No. COA03-516.,COA03-516.
• Citation: 594 S.E.2d 809,164 NC App. 183
• Parties: Turner O. WILEY, Plaintiff, v. UNITED PARCEL SERVICE, INC., Defendant.
• Court: North Carolina Court of Appeals

594 S.E.2d 809

164 NC App. 183

Turner O. WILEY, Plaintiff, v. UNITED PARCEL SERVICE, INC., Defendant.

No. COA03-516.

Court of Appeals of North Carolina.

May 4, 2004.

Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner, Greensboro, for plaintiff-appellant.

Alston & Bird, LLP, by Brian D. Edwards and Meredith S. Jeffries, Charlotte, for defendant-appellee.

MARTIN, Chief Judge.

On 6 October 2000, plaintiff filed an employment discrimination complaint with the North Carolina Department of Labor alleging that defendant United Parcel Service, Inc. (UPS) had discriminated against him in retaliation for his having filed a workers' compensation claim. After receiving a right to sue letter in December 2000, plaintiff filed this action, seeking money damages and injunctive relief, pursuant to the North Carolina Retaliatory Employment Discrimination Act (REDA). N.C. Gen.Stat. §§ 95-240 to -245 (2003). Plaintiff alleged that defendant had violated N.C. Gen.Stat. § 95-241(a)(1a) by refusing to return him to work as a retaliatory action for filing a workers' compensation claim. Defendant filed an answer, denying plaintiff's allegations, and subsequently moved for summary judgment.

The materials before the trial court disclose that plaintiff, who had been an employee of UPS since 1975, suffered a seizure while driving a UPS package car in March 1985. When plaintiff returned to work, he was unable to operate a commercial vehicle pursuant to UPS and federal regulations, 49 C.F.R. § 391.41, due to his use of seizure control medication. In order to accommodate his medical restrictions, UPS created a full time position for him by combining part time positions in the car wash and package handling areas of the facility. Plaintiff subsequently suffered two back strains and an injury to his shoulder.

Despite plaintiff's medical restrictions due to his seizures, his back and shoulder injuries, and his medical need to use the restroom frequently, UPS accommodated plaintiff in non-driving positions from 1985 until 1997. UPS terminated plaintiff in April 1997, but rehired him in February 1999. In his new position as a carwash fueler, plaintiff pumped diesel fuel into UPS vehicles and logged the information.

On 30 August 2000, while fueling UPS tractor-trailers, plaintiff allegedly suffered another seizure which caused a fuel spill. Although plaintiff's personal physician, Dr. Edward D. Hill, Jr., released him to return to work that same day, UPS required a company-approved doctor to examine him before he could return. On 8 September 2000, Dr. George Whittenburg, the company-approved physician, examined plaintiff and determined he should not be allowed to work at heights, with hazardous materials or machinery, or in water. In addition, Dr. Whittenburg limited plaintiff to lifting objects less than thirty pounds.

Under the Collective Bargaining Agreement provision between UPS and the union to which plaintiff belonged, in cases where a dispute arises between the company's doctor and an employee's doctor, a third doctor, whose opinion is binding upon all parties, is selected to evaluate the employee. Dr. Carlo P. Yuson examined plaintiff on 4 October 2000 and concluded that plaintiff should not be allowed to handle hazardous material, to work at heights, to work at extreme temperatures or to drive. On 20 November 2000, Dr. Hill, plaintiff's personal physician, reversed his earlier decision and concluded that plaintiff could not return to work where he was "exposed to noxious diesel fuel, as it may have been a precipitant" for his seizures.

On 10 September 2000, plaintiff filed a workers' compensation claim, which he amended on 8 November 2000, alleging that the exposure to diesel fuel fumes was a significant contributing factor to the onset of his seizure on 30 August 2000. He also claimed that the stress of his work since February 1999 "activated and accelerated the seizure he experienced." After considering the restrictions placed upon plaintiff by the physicians, UPS determined that plaintiff could not return to work in his job as a fueler because the job could not be performed without working with diesel fuel, a hazardous material. Robert Kociolek (Kociolek), UPS's District Human Resources Manager of the West Carolina District, tried to identify a position for plaintiff that would accommodate his medical restrictions. Kociolek considered positions in the feeder division but determined that such positions required driving and/or handling of hazardous materials. He also considered positions as a car washer, operations clerk and package handler, but such positions were either not available or they required the ability to lift packages in excess of thirty pounds. Kociolek ruled out a position as a small sorter because, among other reasons, plaintiff had previously informed UPS he was unable to work in that area due to the lack of close restroom facilities. In December 2000, Kociolek, having been unable to identify a position for plaintiff, sent plaintiff a letter informing him of this fact and asking him if there were any accommodations that could be made that would enable him to return to work. Plaintiff did not respond. Since UPS has been unable to identify a position meeting plaintiff's needs, plaintiff has not returned to work since August 2000.

The trial court granted defendant's motion for summary judgment. Plaintiff appeals.

Plaintiff argues that the trial court erred in granting summary judgment because there was a genuine issue of material fact in dispute. Summary judgment is 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 any party is entitled to a judgment as a matter of law." N.C. Gen. Stat. § 1A-1, Rule 56(c) (2003). The evidence must be viewed in the light most favorable to the non-moving party. Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C.App. 729, 733, 504 S.E.2d 574, 577 (1998).

The North Carolina Retaliatory Employment Discrimination Act (REDA) prohibits discrimination or retaliation against an employee for filing a worker's compensation claim. N.C. Gen.Stat. § 95-241(a)(1a) (2003). In order to state a claim under REDA, a plaintiff must show (1) that he exercised his rights as listed under N.C. Gen.Stat. § 95-241(a), (2) that he suffered an adverse employment action, and (3) that the alleged retaliatory action was taken because the employee exercised his rights under N.C. Gen. Stat. § 95-241(a). Salter v. E & J Healthcare, Inc., 155 N.C.App. 685, 693, 575 S.E.2d 46, 51 (2003). An adverse action includes "the discharge, suspension, demotion, retaliatory relocation of an employee, or other adverse employment action taken against an employee in the terms, conditions, privileges, and benefits of employment." N.C. Gen.Stat. § 95-240(2) (2003). If plaintiff presents a prima facie case of retaliatory discrimination, then the burden shifts to the defendant to show that he "would have taken the same unfavorable action in the absence of the protected activity of the employee." N.C. Gen. Stat. § 95-241(b) (2003). "Although evidence of retaliation in a case such as this one may often be completely circumstantial, the causal nexus between protected activity and retaliatory discharge must be something more than speculation." Swain v. Elfland, 145 N.C.App. 383, 387, 550 S.E.2d 530, 534, cert. denied, 354 N.C. 228, 554 S.E.2d 832 (2001) (citation omitted).

Plaintiff exercised his rights under the Workers' Compensation Act by filing a claim alleging his exposure to fuel fumes and the stress of his work were significant factors in the onset of his seizure on 30 August 2000. However, plaintiff cannot establish that UPS's failure to return him to work constituted an adverse employment action nor can he demonstrate that the alleged retaliatory action was taken because he exercised his workers' compensation rights.

The medical doctors that examined plaintiff after his alleged seizure concluded he should be restricted from working with hazardous materials such as diesel fuel. In addition, plaintiff's workers' compensation claim states that the "occupational disease was caused by ... the exposure to the chemical fumes" in his work as a fueler. UPS's failure to return pl...