Barbee v. Isothermal Cmty. Coll.

LONNIE BARBEE, Plaintiff, v. ISOTHERMAL COMMUNITY COLLEGE, RUSSELL WICKER, DAVID LIBERA,THAD HARRILL, STEVE MATHENY, WALTER DALTON, and SALONIA THORN, Defendants.

CIVIL CASE NO. 1:18-cv-00267-MR-WCM

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION

October 19, 2020

MEMORANDUM OF DECISION AND ORDER

THIS MATTER is before the Court on the Defendants' Motion for Summary Judgment [Doc. 30] and the Defendants' Motion for Sanctions for Plaintiff's Failure to Attend Mediation [Doc. 29].

I. PROCEDURAL BACKGROUND

On September 19, 2018, Lonnie Barbee (the "Plaintiff"), proceeding pro se, filed a Complaint against Isothermal Community College ("ICC"); Walter Dalton, the President of ICC; Stephen Matheny, the Vice President of Administrative Services at ICC; Thad Harrill, the Vice President of Community and Workforce Development, College Advancement, and Director of Alumni Affairs at ICC; Russell Wicker, the Director of the ICC Performing Arts and Conference Center ("PACC"); David Libera, a former ICC employee at the PACC; and Salonia Thorn, a part-time ICC employee at the PACC (collectively the "Defendants"). [Doc. 1]. The Plaintiff's Complaint asserts claims under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., for age discrimination, disability discrimination, retaliation, hostile work environment, disparate treatment, and wrongful termination [Id.].¹ On February 7, 2019, the Defendants answered. [Doc. 7].

On July 3, 2019, a Pretrial Order and Case Management Plan was entered setting various deadlines in this case. [Doc. 15]. That Order was subsequently modified twice, ultimately setting May 8, 2020 as the mediation deadline. [Docs. 25, 27]. Although the parties agreed to conduct a mediated settlement conference via videoconference on May 6, 2020, the Plaintiff never appeared. On May 8, 2020, the Defendants filed a Motion for Sanctions for Plaintiff's Failure to Attend Mediation. [Doc. 29].² Pursuant to28 U.S.C. § 636(b) and the standing Orders of Designation of this Court, the Honorable W. Carleton Metcalf, United States Magistrate Judge, was designated to consider the Defendants' Motion.

On May 15, 2020, the Defendants filed a Motion for Summary Judgment. [Doc. 30]. On May 20, 2020, the Magistrate Judge entered an Order deferring consideration of the Defendants' Motion for Sanctions pending the resolution of the Defendants' Motion for Summary Judgment. [Doc. 33]. On July 27, 2020, the Plaintiff filed his response to the Defendants' Motion for Summary Judgment. [Doc. 37]. On August 5, 2020, the Defendants replied. [Doc. 39].

Having been fully briefed, this matter is ripe for disposition.

II. STANDARD OF REVIEW

Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "As the Supreme Court has observed, 'this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346F.3d 514, 519 (4th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).

A genuine issue of fact exists if a reasonable jury considering the evidence could return a verdict for the nonmoving party. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). "Regardless of whether he may ultimately be responsible for proof and persuasion, the party seeking summary judgment bears an initial burden of demonstrating the absence of a genuine issue of material fact." Bouchat, 346 F.3d at 522. If this showing is made, the burden then shifts to the non-moving party who must convince the Court that a triable issue does exist. Id.

In considering the facts on a motion for summary judgment, the Court will view the pleadings and material presented in the light most favorable to the nonmoving party. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).

III. FACTUAL BACKGROUND³

Before any of the events relevant to this case, the Plaintiff sustained injuries in a car crash that limit his ability to move his hands, write, and recall information. [Doc. 37-2 at ¶ 3].

In 1999, the Plaintiff began working informally at ICC as a stagehand in the PACC. [Id. at ¶ 1]. In January 2005, ICC formally hired the Plaintiff as a part-time stagehand in the PACC. [Id. at ¶ 1]. The Plaintiff notified ICC about his disability before he was formally hired. [Id. at ¶ 4].

During his employment at ICC, the Plaintiff was supervised by Defendants Wicker and Libera. [Id.]. Defendant Wicker was the director of the PACC facility, while Defendant Libera was the technical direct and thus the Plaintiff's immediate supervisor. On July 14, 2016, Defendant Libera issued a written reprimand to the Plaintiff for failing to show up on a scheduled workday and being absent during a show. [Id. at ¶ 7].

On September 1, 2016, Defendant Wicker submitted a request for the Plaintiff to receive a pay increase. [Doc. 30-1 at 114]. On January 1, 2017, the Plaintiff received the requested pay increase. [Id. at 20].

In early 2017, ICC formally hired Defendant Thorn to work part-time at the PACC. [Doc. 37-2 at ¶ 5]. Defendant Thorn and the Plaintiff performed many of the same tasks. [Id. at ¶ 6]. After Defendant Thorn started working, Defendant Wicker reduced the hours work by the Plaintiff and other employees and gave those hours to Defendant Thorn. [Id.; Doc. 37-4 at ¶ 2]. Shortly thereafter, the Plaintiff asked Defendant Libera why ICC hired Defendant Thorn. [Doc. 37-2 at ¶ 8]. Defendant Libera responded that thePACC needed "fresh blood." [Id.]. On two other occasions, Franklin "Robby" Holland, a custodian at ICC, heard Defendant Wicker say that the PACC needed "new blood" because the Plaintiff and another employee were "getting old." [Doc. 37-3 at ¶ 2].

The Plaintiff complained about the comments and the reduction in his hours to Defendants Wicker, Harrill, and Matheny. [Doc. 37-2 at ¶¶ 8-10]. No action was taken in response to the Plaintiff's complaints. [Id.]. Sometime after the Plaintiff complained, another employee sabotaged the Plaintiff's headset during a performance and threw a roll of tape at the Plaintiff, which injured his hand. [Id. at ¶ 11].

In September 2017, Defendant Libera left his position at the PACC. [Id. at ¶ 13]. Defendant Libera was one of the employees who helped accommodate the Plaintiff's disability by handwriting instructions for him. [Id.].

On November 30, 2017, the Plaintiff and Defendant Wicker got into an argument following a performance at the PACC. [Doc. 30-1 at 34; Doc. 37-1 at ¶¶ 21-22]. The argument started because Defendant Wicker was unhappy with the way the Plaintiff operated the lights during the performance. [Doc. 37-2 at ¶ 22]. The Plaintiff challenged Defendant Wicker's approach in front of another employee and then went outside for asmoke break. [Doc. 30-1 at 35]. Defendant Wicker followed the Plaintiff outside and told him that he should not "correct me in front of an employee." [Id.]. The two began arguing and Defendant Wicker told the Plaintiff to leave the PACC. [Id.]. Defendant Wicker never referenced the Plaintiff's age or disability during the argument. [Id. at 38].

Later that night, Defendant Wicker messaged the Plaintiff on Facebook, where he typically sent work schedules to the Plaintiff, and said: "I'm not going to be needing you for the rest of December. Thanks for the Dedication. Take care." [Doc. 30-4 at 7]. The Plaintiff responded by sending several unanswered messages to Defendant Wicker, including ones stating:

• "[B]eware, BIG BOY, I'm coming after you . . . ."

• "Hope you are ready for all this, buddy . . . ."

• "You are just a HILL BILLY . . . ."

• "[Y]ou can't even get along with your own wife . . . ."

[Id. at 7-9]. Although Defendant Wicker never responded to the Plaintiff's messages, he decided that the Plaintiff would not work at the PACC anymore. [Id.; Doc. 30-4 at ¶ 3]. The Plaintiff was 72 years old when he last worked at the PACC. [Doc. 37-2 at ¶ 3].

IV. DISCUSSION

A. Claims Against Individual Defendants

Defendants Dalton, Matheny, Harrill, Wicker, Libera, and Thorn move for summary judgment on all the Plaintiff's claims against them, arguing that there is no individual liability for claims asserting ADA violations, ADEA violations, or wrongful discharge in violation of North Carolina public policy. [Doc. 31 at 14].⁴

The ADEA and the ADA do not provide for individual liability and allow claims only against employers. Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510-11 (4th Cir. 1994) (stating that "the ADEA limits civil liability to the employer . . . ."); Miller v. Ingles, No. CIV. 1:09-cv-00200, 2009 WL 4325218, at *8 (W.D.N.C. Nov. 24, 2009) (Reidinger, J.) (stating that "individuals are not liable for violations of the ADA.") (citation omitted). "'Likewise, a claim for wrongful discharge under North Carolina law cannot be brought against an individual . . . .'" Magaha v. W & B Trucking, Inc., No. 1:15-cv-00159-MOC-DLH, 2015 WL 8759260, at *4 (W.D.N.C. Dec. 14, 2015) (quoting Gibson v. Corning Inc., No. 5:14-cv-105-BO, 2015 WL 1880188, at *4 (E.D.N.C. Apr. 13, 2015); Iglesias v. Wolford, 539 F. Supp. 2d 831, 839-40(E.D.N.C. 2008)). The Plaintiff's forecast of evidence clearly shows that his employer was Defendant ICC. Because Defendants Dalton, Matheny, Harrill, Wicker, Libera, and Thorn are individuals, and do not qualify as employers under the ADA, the ADEA, or North Carolina state law, their Motion for Summary Judgment on the Plaintiff's claims against them will be granted.

B. Disparate Treatment

Defendant ICC moves for...