Davis v. Capital Ready Mix Concrete, LLC

1

ROSCOE DAVIS, JR., Plaintiff, v. CAPITAL READY MTX CONCRETE, LLC, and ARTHUR KENNEDY, Defendants.

No. 5:21-CV-463-D

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

November 7, 2023

ORDER

JEMES C. DEVER, JUDGE

On September 2,2021, Roscoe Davis, Jr. ("Davis" or ''plaintiff') filed a complaint under the j Families First Coronavirus Response Act, Pub. L. No 116-127,134 Stat. 178 (2020) ("FFCRA"), against Capital Ready Mix Concrete, LLC ("Capital") and Arthur Kennedy ("Kennedy") (collectively "defendants") in the Wake County Superior Court [D.E. 1-1]2—12. Davis also asserted j state law claims under the North Carolina Wage and Hour Act, N.C. Gen. Stat §§ 95-25.1 et seq. (2023) ("NCWHA"), under the North Carolina Retaliatory Employment Discrimination Act, N.C. ; Gen. Stat. §§ 95-240 et seq, (2023) ("REDA"), and for wrongful interference with an entitlement benefit [D.E. 1-1] 4. On October 1, 2021, Davis amended his complaint [D.E. 1-1] 13-22. On November 8,2021, the defendants removed the action to this court [D.E. 1]. On January 25, 2022, Davis filed a second amended complaint [D.E. 23].

On May 31, 2023, defendants moved for summary judgment [D.E. 44] and filed a memorandum in support [D.E. 45], a statement of material facts [D.E. 46], and an appendix [D.E. 47]. On June 21,2023, Davis responded in opposition [D.E. 48] and filed a memorandum in support [D.E. 48-1], an opposing statement of material facts [D.E. 48-2], and exhibits [D.E. 48-3 to 48-15].

On July 5, 2023, defendants replied [D.E. 49] and responded to Davis's statement of material facts [D.E. SO]. As explained below, the court grants defendants' motion for summary judgment.

I.

On March 29,2016, Davis began driving for Capital. SeeDefs.' Statement of Material Facts ("Defs.' SOMF") [D.E. 46] 11; PL's Statement of Material Facts ("Davis SOMF") [D.E. 48-2] 11. During the relevant time period, Kennedy served as Capital's Vice President of Human Resources and Safety. See Defs.' SOMF ¶ 2; Davis SOMF 12. In late May 2020, Brandon O'Briant ("O'Brianf), another Capital employee, tested positive for COVID-19. See Defs.' SOMF ¶¶ 25-26; Davis SOMF ¶¶ 25-26. On May 28,2020, after learning O'Briant tested positive, Capital notified its employees of their potential exposure and told them to report to Select Family Practice (''Select") for COVID-19 testing. See Defs.' SOMF ¶¶ 30, 32; Davis SOMF ¶ 30, 32. Capital contacted Davis, who was not working on May 28, and instructed him to report to work on May 29 and then get tested. See Defs.' SOMF 1 36; Davis SOMF ¶ 36. Davis then contacted another Capital employee, saying, "I'm going to take the test in the morning [,] and I'm letting them know that I will be staying home until results are back." Defs.' SOMF ¶ 37; see Davis SOMF ¶ 37. Davis also told two other Capital employees he was not comfortable returning to work before receiving his results. See Defs.SOMF 138; Davis SOMF 138.

On May 29,2020, Davis reported to Capital, where Anthony Letterman ("Letterman") told Davis to get a COVID-19 test and return to work. Compare Defs.SOMF ¶¶ 44-45, with Davis SOMF ¶¶ 44-45. Davis told Letterman he intended to "go home and wait until [he got his] results back" and that he would talk to Letterman after receiving his results. See Defs.' SOMF ¶ 48,50; Davis SOMF ¶ 48, 50. Letterman repeated his instruction to return to work. See Defs.' SOMF f 49 Davis SOMF f 49. Davis left for Select after another Capital employee instructed him to do so. See Defs.' SOMF ¶¶ 53-54; Davis SOMF flf 53-54. At Select, medical assistant Gwendolyn Johnson ("Johnson") administered Davis's COVID-19 test. See Defs.' SOMF ¶ 55; Davis SOMF 155. Davis asked Johnson what he should do after the test, and she replied that "[a]fter you take this test, you go home." [D.E. 48-11] 122-23. Nobody else at Select instructed Davis to go home. See id at 134-35.

After his test, Davis called Kennedy and told him he was going home until he received his results. See Defs.' SOMF ¶¶ 69-72; Davis SOMF U| 69-72. Davis went home. See Defs.' SOMF 173; Davis SOMF ¶ 73. Jason Holland ("Holland"), another Capital employee, called Davis to ask him to return to work, but Davis repeated that he would stay home until he received his results. See Defs.' SOMF ¶¶ 75-78; Davis SOMF ¶¶ 75-78. Holland reported this conversation and Davis's conduct during interactions with other Capital employees to Kennedy. Compare Defs.' SOMF ¶¶ 41,51,53,79, with Davis SOMF ¶¶ 41,51,53,79.^[1] Capital's then-owner determined that Davis's refusal to come to work and his conduct towards other employees merited termination. See Defs.' SOMF 180; Davis SOMF ¶ 80. Kennedy participated in this decision but was not the ultimate decisionmaker. See Defs.' SOMF ¶ 81; Davis SOMF ¶ 81.^[2] Kennedy then called Davis and gave rum one more chance to return to work, but Davis again refused. See Defs.' SOMF ¶¶ 83-85; Davis SOMF ¶ 83-85. Kennedy then informed Davis that Capital had terminated Davis's employment. See Defs.' SOMF 186; Davis SOMF ¶ 86.

On May 31,2020, Davis filed for unemployment benefits. See Defs.' SOMF187; Davis SOMF If 87. Davis reported to the North Carolina Division of Employment Security ("NCDES") that Capital terminated his employment "[f]or refusing to report back to work after [C]ovid-19 testing [because he] wanted to get [his] results back first then report back to work." Defs. SOMF ¶ 90; see Davis SOMF ¶¶ 90. Capital reported to the NCDES that it terminated Davis for "refus[ing] duty and [being] disrespectful to various employees." Defs.' SOMF 193; see Davis SOMF ¶ 93. NCDES initially concluded Davis was discharged for misconduct and denied his claim, but on appeal Davis received unemployment benefits. See Defs.' SOMF ¶¶ 96,101; Davis SOMF ¶¶ 96,101; [D.E. 48-11] 192.

II.

Summary judgment is appropriate when, after reviewing the record as a whole, the court determines that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Scott v. Harris. 550 U.S. 372, 378, 380 (2007); Anderson v. Liberty Lobby. Inc.. 477 U.S. 242, 247-48 (1986). The party seeking summary judgment must initially demonstrate the absence of a genuine issue of material fact or the absence of evidence to support the nonmoving party's case. See Celotex Corp. v. Catrett, 477 U.S. 317,325 (1986). Once the moving party has met its burden, the nonmoving party may not rest on the allegations or denials in its pleading, see Anderson, 477 U.S. at 248-49, but "must come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis and quotation omitted). A trial court reviewing amotion for summary judgment should determine whether a genuine issue of material fact exists for trial. See Anderson, 477 U.S. at 249. In making this determination, the court must view the evidence and the inferences drawn therefrom in the light most favorable to the nonmoving party. See Harris, 550 U.S. at 378.

A genuine issue of material fact exists if there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. See Anderson. 477 U.S. at 249. "The mere existence of a scintilla of evidence in support of the [nonmoving party's] position [is] insufficient" Id at 252; see Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985) ("The nonmoving party, however, cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another."). Only factual disputes that affect the outcome under substantive law properly preclude summary judgment. See Anderson, 477 U.S. at 248.

A.

In Davis's first claim, Davis alleges that defendants violated the FFCRA. See Sec. Am. Compl. [D.E. 23] ¶¶ 27-42. The FFCRA includes the Emergency Paid Sick Leave Act ("EPSLA"), FFCRA §§ 5101-11,134 Stat, at 195-201.^[3] The EPSLA required employers to provide 80 hours of paid sick leave to full-time employees who met one of the statute's six specified criteria. See FFCRA § 5102(a)(1)-(6)» (b)(2)(A). The parties agree that the only criterion potentially applicable to Davis was that he had "been advised by a health care provider to self-quarantine due to concerns related to COVID-19." FFCRA § 5102(a)(2); see Defs.' Mem. Supp. Mot. Summ. J. [D.E. 45] ("Defs.' Mem.") 12-16; Pl's Mem. Opp'n Defs.' Mot Summ. J. [D.E. 48] ("Davis Mem.") 11-13.

The term "health care provider" in the EPSLA has the same meaning as in section 101 of the Family and Medical Leave Act of 1993 ("FMLA") (codified at 29 U.S.C. § 2611). See FFCRA § 5110(4). In the EPSLA, Congress delegated rule making authority to the Secretary of Labor. See FFCRA § 5111. On April 6, 2020, the Secretary promulgated rules under the FFCRA which reference the FMLA's regulations to further define "health care provider." See 29 C.F.R. § 826.20(a)(3), 85 Fed. Reg. 19326,19349 (Apr. 6, 2020); see also 29 C.F.R. § 825.102. Those regulations define "health care provider" as "[a] doctor of medicine or osteopathy who is authorized to practice medicine or surgery... by the State in which the doctor practices"; or "[a]ny other person determined by the Secretary to be capable of providing health care services." 29 C.F.R. § 825.102. The regulation limits the latter category to "[n]urse practitioners, nurse-midwives, clinical social workers[,] and physician assistants who are authorized to practice under State law" or "[a]ny health care provider from whom an employer or the employer's group health plan's benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits." Id.

Davis relies on Johnson's instruction for his EPSLA claim. See Dav...