Hopkins v. Mwr Mgmt. Co.

Hopkins v. MWR Mgmt. Co., 2016 NCBC 38.

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
MECKLENBURG COUNTY 15 CVS 697

BRANDON HOPKINS,

Plaintiff,

v.
ORDER & OPINION ON DEFENDANT
MWR MANAGEMENT COMPANY d/b/a MWR’S PARTIAL MOTION TO
MICHAEL WALTRIP RACING and TY DISMISS SECOND AMENDED
NORRIS, COMPLAINT

Defendants.

{1} THIS MATTER is before the Court upon Defendant MWR Management
Company’s (“Defendant” or “MWR”) Partial Motion to Dismiss Plaintiff Brandon
Hopkins’ (“Plaintiff” or “Hopkins”) Second Amended Complaint (the “Motion to
Dismiss” or the “Motion”).1
{2} The Court, having considered the Motion, the briefs supporting and
opposing the Motion, and the arguments of counsel at a February 2, 2016 hearing on
the Motion, hereby GRANTS in part and DENIES in part the Motion to Dismiss.
Van Kampen Law, PC, by Joshua R. Van Kampen and Sean F.
Herrmann, for Plaintiff Brandon Hopkins.

James, McElroy & Diehl, P.A., by William K. Diehl, Jr., Jon P. Carroll,
and Adam L. Ross, for Defendants MWR Management Company and Ty
Norris.
Bledsoe, Judge.
I.
PROCEDURAL BACKGROUND
{3} Hopkins commenced this action on January 12, 2015, asserting various
claims arising out of MWR’s termination of Hopkins’ employment on August 6, 2014.
Hopkins’ claims center around his allegation that MWR terminated him for seeking

1 Although the Motion is titled “Defendants’ Partial Motion to Dismiss the Second Amended
Complaint,” suggesting that both Defendants are moving parties, the body of the Motion states that
MWR is the sole moving party, and the claims sought to be dismissed are asserted against only MWR.
surgery to repair a shoulder injury Hopkins suffered during the course of his
employment. Hopkins amended his complaint with Defendants’ consent on May 26,
2015. Defendants subsequently filed their answer, and MWR filed a Motion to
Dismiss, on July 15, 2015, and Hopkins filed a Motion to Amend to assert a second
amended complaint on September 15, 2015.
{4} On November 5, 2015, the Court granted Hopkins’ Motion to Amend and at
the same time dismissed Hopkins’ claim for wrongful discharge based on an alleged
violation of the North Carolina Persons with Disabilities Protection Act, N.C. Gen.
Stat. 168A-1, et seq. (“NCPDPA”). See Hopkins I v. MWR Mgmt. Co., 2015 NCBC
LEXIS 104 (N.C. Super. Ct. Nov. 5, 2015) (“Hopkins I ” or the “November 5 Order”).
In so ruling, the Court concluded that “Hopkins ha[d] not shown that he was a ‘person
with a disability’ under the NCPDPA[.]” Id. at *19.
{5} Hopkins filed the Second Amended Complaint on November 10, 2015. The
Second Amended Complaint contains factual allegations nearly identical to those in
the Amended Complaint and, based on those same allegations, adds claims against
MWR under the Americans with Disabilities Act (“ADA”) and the Family and Medical
Leave Act (“FMLA”).
{6} On December 2, 2015, MWR filed the current Motion to Dismiss, seeking the
dismissal of Hopkins’ newly-added ADA and FMLA claims. The Motion has been
fully briefed, and the Court held a hearing on the Motion on February 2, 2016, at
which all parties were represented by counsel. The Motion is ripe for resolution.
II.
FACTUAL BACKGROUND
{7} The Court does not make findings of fact when ruling on a motion to dismiss
pursuant to Rule 12(b)(6) because such a motion “does not present the merits, but
only whether the merits may be reached.” Concrete Serv. Corp. v. Investors Grp.,
Inc., 79 N.C. App. 678, 681, 340 S.E.2d 755, 758 (1986).
{8} The relevant factual and procedural background of this case is recited in
detail in Hopkins I, 2015 NCBC LEXIS 104, at *2–7, which the Court incorporates
herein by reference.
III.
ANALYSIS
A. Standard of Review
{9} When ruling on a motion to dismiss pursuant to Rule 12(b)(6), a court asks
“whether the allegations of the complaint, treated as true, are sufficient to state a
claim upon which relief may be granted under some legal theory, whether properly
labeled or not.” Enoch v. Inman, 164 N.C. App. 415, 417, 596 S.E.2d 361, 363 (2004).
Thus, courts generally construe complaints liberally and accept all allegations as
true, but a “trial court can reject allegations that are contradicted by the documents
attached, specifically referred to, or incorporated by reference in the complaint.”
Laster v. Francis, 199 N.C. App. 572, 577, 681 S.E.2d 858, 862 (2009). Dismissal of
a claim on a Rule 12(b)(6) motion is proper “(1) when the complaint on its face reveals
that no law supports plaintiff’s claim; (2) when the complaint reveals on its face the
absence of fact sufficient to make a good claim; (3) when some fact disclosed in the
complaint necessarily defeats the plaintiff’s claim.” Oates v. JAG, Inc., 314 N.C. 276,
278, 333 S.E.2d 222, 224 (1985) (citations omitted).
B. Americans with Disabilities Act
{10} The ADA, 42 U.S.C. § 12101, et seq., prohibits covered entities, including
private employers, from discriminating against “a qualified individual on the basis of
disability in regard to job application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job training, and other terms,
conditions, and privileges of employment.” Id. § 12112(a). The ADA defines
“disability” as: “(A) a physical or mental impairment that substantially limits one or
more major life activities of such individual; (B) a record of such an impairment; or
(C) being regarded as having such an impairment (as described in paragraph (3)).”
Id. § 12102(1). A “qualified individual” with a disability under the ADA is someone
“who, with or without reasonable accommodation, can perform the essential
functions” of the job. Id. § 12111(8). A reasonable accommodation “is one that
‘enables [a qualified] individual with a disability . . . to perform the essential functions
of [a] position,’” and an employer has a good-faith duty to engage with its employee
to identify a reasonable accommodation. Jacobs v. N.C. Admin. Office of the Courts,
780 F.3d 562, 580–81 (4th Cir. 2015) (alterations in original) (quoting 29 C.F.R. §
1630.2(o)(1)(ii)) (internal punctuation omitted).
{11} “To establish a claim for disability discrimination under the ADA, a plaintiff
must prove ‘(1) that she has a disability, (2) that she is a “qualified individual” for the
employment in question, and (3) that [her employer] discharged her (or took other
adverse employment action) because of her disability.’” Id. at 572 (alteration in
original) (quoting EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d 373, 377 (4th Cir. 2000)).
To demonstrate one’s status as a “qualified individual with a disability” under the
ADA, an individual may offer: “1) proof that the individual is ‘actually disabled,’ and
that such disability ‘substantially limits one or more major life activities’; 2) proof
that the individual has a record of such impairment; or 3) proof that the individual is
‘regarded as having such an impairment.’” West v. J.O. Stevenson, Inc., No. 7:15-CV-
87-FL, 2016 U.S. Dist. LEXIS 22526, at *41 (E.D.N.C. Feb. 24, 2016) (quoting 42
U.S.C. § 12102(1)).
{12} Hopkins alleges in his Second Amended Complaint that he was a “qualified
individual with a disability” under the ADA and that MWR violated the ADA by (i)
“treating Plaintiff differently from his peers in terms and conditions of employment
and ultimately terminating him on the basis of his actual or perceived disability”; (ii)
“denying Plaintiff a requested reasonable accommodation, his shoulder surgery and
leave”; and (iii) “retaliating against Plaintiff for exercising his statutory right to
request a reasonable accommodation.” (Second Am. Compl. ¶¶ 93–94.)
{13} MWR first contends that the Court’s conclusion in the November 5 Order
that Hopkins failed to show that he was a “person with a disability” under the
NCPDPA, Hopkins I, 2015 NCBC LEXIS 104, at *19, compels the further conclusion
that Hopkins is not a “qualified person with a disability” under the ADA, therefore
mandating dismissal.
{14} As the Court discussed in the November 5 Order, “a ‘person with a disability’
under the NCPDPA is anyone who ‘(i) has a physical or mental impairment which
substantially limits one or more major life activities; (ii) has a record of such an
impairment; or (iii) is regarded as having such an impairment.’” Hopkins I, 2015
NCBC LEXIS 104, at *13 (quoting N.C. Gen. Stat. § 168A-3(7a) (2014)). “Physical or
mental impairment” encompasses a comprehensive list of disorders or conditions, but
the statute excludes conditions that are “temporary in nature, lasting six months or
fewer, and leaving no residual impairment.” N.C. Gen. Stat. § 168A-3(7a)(a). “Major
life activities” under the NCPDPA include a variety of life functions, such as
“sleeping, lifting, bending, . . . and working.” Id. § 168A-3(7a)(b). In addition, a
person is “regarded as having an impairment” and therefore is a “person with a
disability” under the NCPDPA when he (i) “has a physical or mental impairment that
does not substantially limit major life activities but that is treated as constituting
such a limitation” or (ii) has no such impairment limiting a major life activity “but is
treated as having such an impairment.” Id. § 168A-3(7a)(d).
{15} Hopkins previously argued that he qualified as a “person with a disability”
under either the first prong (actual disability) or third prong (perceived disability) of
the statutory definition under the NCPDPA, but the Court disagreed. As to the first
prong, the Court concluded that the facts as pleaded did not support Hopkins’
allegations that the alleged impairment lasted more than six months as required
under the NCPDPA.2 The Court further found that the facts as alleged did not show
that Hopkins’ alleged disability had substantially limited one or more of his major
life activities—in particular, as pleaded here, the major life activities of sleeping and
lifting. See Hopkins I, 2015 NCBC LEXIS 104, at *14–17. As to the third prong, the
Court concluded that “[f]airly read, the Amended Complaint indicates that MWR

2 The Court specifically found as follows in the November 5 Order:

Hopkins had surgery on August 7, 2014, and achieved a full recovery in less than three
months when his doctor cleared him to return to work with no restrictions on October
28, 2014. (Am. Compl. ¶ 41.) The injury’s impact on his ability to sleep or participate
in team workouts did not begin until June 2014, which is fewer than six months before
his full recovery. (Am. Compl. ¶¶ 21–23.) Thus, any effect of the injury lasting more
than six months was a result of the decision to delay surgery rather than the nature of
the injury itself.
Hopkins I, 2015 NCBC LEXIS 104, at *32.
knew of the injury but considered Hopkins a capable worker between the time he was
injured and his surgery” and does not “permit an inference that MWR treated him as
suffering an impairment that was not temporary and substantially limited his major
life activities.” Id. at *18.
{16} The Court has previously observed that “[t]he NCPDPA is the North
Carolina equivalent of the ADA.” Id. at *15 n.2 (citing Johnson v. Bd. Of Trs. of
Durham Tech. Cmty. Coll., 157 N.C. App. 38, 46, 577 S.E.2d 670, 674 (2003)). While
the NCPDPA and the ADA are substantially similar, the ADA Amendments Act of
2008, Pub. L. No. 110-325, 122 Stat. 3553 (the “ADAAA”), reinstated a more inclusive
scope of protection by mandating that the definition of disability “shall be construed
in favor of broad coverage of individuals under this chapter, to the maximum extent
permitted by [its] terms.” 42 U.S.C. § 12102(4)(A) (2012); see also Summers v.
Altarum Inst., Corp., 740 F.3d 325, 329 (4th Cir. 2014) (discussing the ADAAA and
its legislative history). The NCPDPA was amended after the ADAAA became law,
but North Carolina's definition of “a person with a disability” still excludes temporary
conditions and did not add a mandate for broad coverage similar to the ADAAA’s
mandate. See 2011 N.C. Sess. Laws 94.
(i) Actual Disability
{17} Turning first to Plaintiff’s claim of “actual disability,” Plaintiff argues that
he has pleaded facts establishing that he had “a physical impairment that
substantially limits one or more major life activities” under the ADA. Unlike the
NCPDPA, the regulations implementing the ADA provide that the term
“‘[s]ubstantially limits’ is not meant to be a demanding standard,” 29 C.F.R. §
1630.2(j)(1)(i). Indeed, the regulations state that “[a]n impairment need not prevent,
or significantly or severely restrict, the individual from performing a major life
activity in order to be considered substantially limiting.” Id. § 1630.2(j)(1)(ii).
Moreover, in contrast to the NCPDPA, the ADA does not contain a requirement that
an impairment last longer than six months to qualify for coverage. See id. §
1630.2(j)(1)(ix).3 Also unlike the NCPDPA, the ADA specifically includes as a “major
life activity” “[t]he operation of a major bodily function,” including, the
“musculoskeletal . . . function[].” Id. § 1630.2(i)(1)(ii).
{18} In cases brought under the ADA, as amended by the ADAAA, “[t]he primary
object of attention . . . should be whether covered entities have complied with their
obligations and whether discrimination has occurred, not whether the individual
meets the definition of disability.” Jacobs, 780 F.3d at 572 (quoting 29 C.F.R. §
1630.1(c)(4)). “The question of whether an individual meets the definition of
disability under this part should not demand extensive analysis.” 29 C.F.R. §
1630.1(c)(4). At the pleading stage under the Federal Rules, a plaintiff asserting
claims under the ADA is “not required . . . to go into particulars about the life activity
affected by [the] alleged disability or detail the nature of [the] substantial
limitations.” Mary’s House, Inc. v. N.C., 976 F. Supp. 2d 691, 702 (M.D.N.C. 2013)
(quoting Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009)).
{19} In this case, Plaintiff has pleaded that he suffered a torn labrum on October
6, 2013, (Second Am. Compl. ¶¶ 15, 19), and contends that he has pleaded facts
showing that this impairment substantially limited “his ability to sleep,” his ability
to “lift[], reach[], and perform[] manual tasks,” and his “musculoskeletal system’s
function.” (Pl. Mem. Supp. Mot. Dismiss 11; Second Am. Compl. ¶ 91.) Plaintiff
alleges that he underwent surgery to repair his injury on August 7, 2014, (Second
Am. Compl. ¶ 26), and was cleared to return to work with no restrictions on October
28, 2014. (Second Am. Compl. ¶ 42.)
{20} The Court previously concluded that Plaintiff had failed to plead facts
permitting a conclusion that Plaintiff was substantially limited in his ability to sleep

3 For example, 29 C.F.R. § 1630.2(j)(1)(ix) provides:

The six-month “transitory” part of the “transitory and minor” exception to “regarded
as” coverage in § 1630.15(f) does not apply to the definition of “disability” under
paragraphs (g)(1)(i) (the “actual disability” prong) or (g)(1)(ii) (the “record of” prong) of
this section. The effects of an impairment lasting or expected to last fewer than six
months can be substantially limiting within the meaning of this section.
or lift for purposes of the NCPDPA. As to Plaintiff’s alleged inability to sleep, the
Court relied upon federal decisions under the ADA but not the ADAAA and held as
follows:
At the hearing, Hopkins directed the Court’s attention to his allegations
regarding substantial impairment of his ability to sleep and lift.
However, the Amended Complaint only alleges that Hopkins told his pit
coach that his shoulder pain “affected his ability to sleep” in early June
2014. (Am. Compl. ¶ 21.) Without more, this statement does not give rise
to an inference that Hopkins was “substantially limited” in his ability to
sleep. See Anderson v. Discovery Commc’ns, 517 Fed. Appx. 190, 194–
95 (4th Cir. 2013) (holding that a plaintiff who alleged receiving less
than four hours of sleep nightly on account of insomnia was not
substantially limited in a major life activity under the ADA); Boerst v.
Gen. Mills Operations, 25 Fed. Appx. 403, 407 (6th Cir. 2002) (“Getting
between two and four hours of sleep a night, while inconvenient, simply
lacks the kind of severity we require of an ailment before we will say
that the ailment qualifies as a substantial limitation under the ADA.”).
Hopkins I, 2015 NCBC LEXIS 104, at *14–15.
{21} As to Plaintiff’s alleged inability to lift, the Court held:
Hopkins asserts that he continued to work through the summer of 2014,
although he “was unable to work out and could only partially participate
in pit practice” as he was “trying to save his shoulder for the beating it
would take on race day.” (Am. Compl. ¶ 23.) Hopkins’ inability to
participate in team workouts while continuing to perform the other
aspects of his job does not indicate that he was substantially limited in
the major life activities of lifting or working. See Reynolds v. Am. Nat’l
Red Cross, 701 F.3d 143, 152–53 (4th Cir. 2012) (holding that the
plaintiff was not substantially limited in his ability to lift under the ADA
where his alleged injuries did not restrict him from doing activities of
central importance to most people’s daily lives) 4; Gravitte v. Mitsubishi
Semiconductor Am., Inc., 109 N.C. App. 466, 471, 428 S.E.2d 254, 257,
disc. rev. denied, 334 N.C. 163, 432 S.E.2d 360 (1993) (stating that
“plaintiff’s condition must limit more than her mere ability to work a
particular job in order for it to affect a major life activity”). Taken as
true, Hopkins’ pleadings indicate that he could, in fact, perform most of
his job duties but chose to exert himself sparingly. See Clark v. United
Emergency Servs., No. COA07-592, 2008 N.C. App. LEXIS 660, *22–23

4 In Reynolds, the Fourth Circuit joined other federal circuit courts of appeals in holding that the
ADAAA, which took effect on January 1, 2009, does not apply retroactively. 701 F.3d at 151–52.
Hopkins I cited a number of federal cases that were decided after January 1, 2009 but did not apply
the ADAAA because the conduct underlying the ADA claims occurred prior to 2009.
(N.C. Ct. App. Apr. 15, 2008) (unpublished) (holding that plaintiff failed
to state a claim under the NCPDPA when she could perform her job
duties at times when she was not receiving treatments for a blood
disorder).
Hopkins I, 2015 NCBC LEXIS 104, at *16–17 (footnote added).
{22} Impairments lasting for fewer than six months are excluded from the
statutory definition of “disability” under the NCPDPA, which reflects interpretations
of the ADA prior to the 2008 amendments. See Toyota Motor Mfg., Ky., Inc. v.
Williams, 534 U.S. 184, 198 (2002) (holding that an impairment only rises to the level
of a disability under the ADA if its impact is “permanent or long term”). The 2008
amendments to the ADA and the accompanying regulations took a more inclusive
view that “effects of an impairment lasting or expected to last fewer than six months
can be substantially limiting . . . .” 29 C.F.R. § 1630.2(j)(1)(ix) (emphasis added). In
promulgating these regulations, the EEOC has offered guidance on how to consider
an impairment’s duration. “Impairments that last only for a short period of time are
typically not covered, although they may be covered if sufficiently severe.” 29 C.F.R.
§ 1630.2(j)(i)(ix) (app.). Courts should view duration as merely “one factor that is
relevant in determining whether the impairment substantially limits a major life
activity.” Id. As an example of a sufficiently severe temporary impairment, the
Fourth Circuit has embraced the EEOC’s view that an individual with a back
impairment that results in a twenty pound lifting restriction lasting for several
months is substantially limited in the major life activity of lifting. Summers, 740
F.3d at 330 (relying on 29 C.F.R. § 1630.2(j)(i)(ix) (app.)).
{23} First, as to sleep, Plaintiff alleges only that he told his pit coach that his
shoulder pain “affected his ability to sleep” on a single occasion in early June 2014.
(Second Am. Compl. ¶ 22.) Plaintiff does not allege any facts showing that he was
actually unable to sleep as a result of his injury. Moreover, he has not pleaded any
facts indicating the degree or severity of any alleged inability to sleep, including how
frequently he suffered from his alleged inability to sleep, how severely his nightly
sleep was disrupted when his ability to sleep was affected, or the length of time he
suffered from his alleged inability to sleep.5 Based on the facts pleaded here—simply
that Plaintiff told his pit coach on a single occasion that his injury had “affected his
ability to sleep”—the Court concludes that Plaintiff has failed to plead facts from
which a permissible inference may be drawn that he was substantially limited in his
ability to sleep as a result of his alleged disability. See, e.g., West, 2016 U.S. Dist.
LEXIS 22526, at *43 (“Where plaintiff has failed to plead the expected duration of his
impairment, as well as its severity, the court cannot determine its effect on any major
life activity.”); Estate of Murray v. UHS of Fairmount, Inc., No. 10-2561, 2011 U.S.
Dist. LEXIS 130199, at *26 (E.D. Pa. Nov. 9, 2011) (holding that plaintiff was not
substantially limited in the major life activity of sleeping where her evidence “boil[ed]
down to a brief mention . . . of not eating, not sleeping, and having racing thoughts
without any details as to duration, frequency, or severity”); but see Summers, 740
F.3d at 330 (holding that plaintiff’s temporary impairment was sufficiently severe to
survive a 12(b)(6) motion where plaintiff alleged that his broken legs and injured
tendons rendered him immobile for seven months).
{24} Next, as to lifting, reaching and performing manual tasks, Plaintiff alleges
that he continued to work through the summer of 2014, although he “was unable to
work out and could only partially participate in pit practice” as he was “trying to save
his shoulder for the beating it would take on race day.” (Second Am. Compl. ¶ 24.)
The Court previously concluded that “Hopkins’ pleadings indicate that he could, in
fact, perform most of his job duties but chose to exert himself sparingly,” and that any
impairment was temporary in nature and not so severe that he was substantially
limited in lifting, reaching, and other manual tasks. Hopkins I, 2015 NCBC LEXIS
104, at *16–17. In reaching this conclusion, the Court relied on North Carolina case
law and analogous pre-ADAAA federal case law, which, as explained above, place a
stricter burden on plaintiffs to allege disability at the pleadings stage. See supra ¶ 16.

5 As pleaded, Plaintiff’s inability to sleep did not begin until June 2014 and, at most, ended no later
than his release to return to work on October 28, 2014, a period of no more than four months. (Second
Am. Compl. ¶¶ 21–23.)
{25} Construing the ADA in favor of broad coverage and to the maximum extent
permitted by its terms, as the Court is required to do under the ADAAA, the Court
cannot determine that Hopkins has failed to plead sufficiently that he was
substantially limited in his ability to reach, lift, and perform manual tasks. Plaintiff
has at least alleged non-conclusory facts that his impairment limited his ability to
lift, reach, and perform manual tasks, which the Court determines is sufficient under
the ADAAA to survive a motion to dismiss. See generally Mary’s House, 976 F. Supp.
2d at 702 (holding that plaintiffs’ allegations that they were recovering addicts and
previously homeless was sufficient at the 12(b)(6) stage to support an inference that
they were substantially limited in their ability to work and care for themselves); Bray
v. Town of Wake Forest, No. 5:14-CV-276-FL, 2015 U.S. Dist. LEXIS 44731, at *27–
28 (E.D.N.C. Apr. 3, 2015) (holding that plaintiff who alleged she could not lift, run,
and jump while pregnant sufficiently pleaded disability despite pre-ADAAA
precedent that pregnancy alone is not a disability for the purposes of the ADA); see
also Rico v. Xcel Energy, Inc., 893 F. Supp. 2d 1165, 1168 (D.N.M. 2012) (“[I]n light
of the new standards outlined in the ADAAA and its implementing regulations, courts
have declined to dismiss, under Rule 12(b)(6), ADA claims for failure to allege facts
that, if proven, would establish an impairment that ‘substantially limits’ a major life
activity”). While proof of more detailed facts may be needed to survive a motion for
summary judgment, Plaintiff’s allegations are sufficient at this stage to support an
inference that he was substantially limited in his ability to lift, reach, and perform
manual tasks.
{26} Last, Plaintiff alleges that he suffered a torn labrum, which substantially
limited his “musculoskeletal system’s function” and thus constituted a disability
under the ADA. According to the Orthopaedic Surgery section of the John Hopkins
Medicine website, “[t]he labrum is a piece of fibrocartilage (rubbery tissue) attached
to the rim of the shoulder socket that helps keep the ball of the joint in place. When
this cartilage is torn, it is called a labral tear.”6 Fibrocartilage is “a type of cartilage

6See John Hopkins Medicine, Orthopaedic Surgery, http://www.hopkinsmedicine.org/orthopaedic-
surgery/specialty-areas/sports-medicine/conditions-we-treat/labral-tear-shoulder.html.
having a large number of fibers,”7 and “[c]artilage is a type of connective tissue in the
body that has a tough, flexible matrix made of collagen, protein, and sugar.”8
“Cartilage is found in the nose and ears, as well as joints, including the knees, hips,
shoulders, and fingers,”9 and “[t]he skeletal system includes the bones of the skeleton
and the cartilages, ligaments, and other connective tissue that stabilize or connect
the bones.”10 Defendants do not argue that the labrum is not part of the body’s
musculoskeletal system, and so the Court accepts as true Plaintiff’s allegation that
his torn labrum affected his body’s musculoskeletal system.
{27} In contrast to the other alleged major life activities Plaintiff contends were
substantially limited by his alleged disability, Plaintiff has advanced a number of
allegations suggesting that his torn labrum substantially restricted the operation of
his musculoskeletal function, including numerous allegations asserting that Plaintiff
suffered intense pain in his shoulder and neck for several months and lost feeling in
his arm and hand from time to time. (Second Am. Compl. ¶¶ 16–26.) As a result, the
Court concludes that, as pleaded here, Plaintiff’s impairment, although temporary, is
alleged to have been sufficiently severe to “substantially limit” the operation of his
musculoskeletal function under the expansive definition of that term under the 2008
Amendments to the ADA. E.g., 29 C.F.R. 1630.2(j)(1) (“‘Substantially limits’ is not
meant to be a demanding standard.”). See also Summers, 740 F.3d at 332 (stating
that torn tendons are impairments to the musculoskeletal system); Moore v. Jackson
Cnty. Bd. Of Educ., 979 F. Supp. 2d 1251, 1261 (N.D. Ala. 2013) (holding that
plaintiff’s broken ankle substantially limited her general musculoskeletal function).11

7 See Dictionary.com, http://www.dictionary.com/browse/fibrocartilage.

8 See Univ. of Md. Med. Ctr., http://umm.edu/health/medical/altmed/supplement/cartilage.

9 Id.

10 See Cleveland Clinic, Diseases & Conditions, https://my.clevelandclinic.org/health/diseases_
conditions/hic_musculoskeletal_pain/hic_Normal_Structure_and_Function_of_the_Musculoskeletal_
System (emphasis added).

11 “The link between particular impairments and various major bodily functions should not be difficult
to identify. Because impairments, by definition, affect the functioning of body systems, they will
The Court thus concludes that Plaintiff may maintain his claim for “actual disability”
under the ADA at this stage of the litigation based on his contention that his alleged
impairment substantially limited the operation of his musculoskeletal function.
(ii) Regarded As
{28} Chief Judge Flanagan recently summarized the elements of a “regarded as”
claim under the 2008 Amendments to the ADA:
The elements of an ADAAA claim brought under the “regarded as”
prong essentially are the same as those elements necessary to state a
claim under the ADAAA's “actually disabled” prong. See Reynolds v.
Am. Nat'l Red Cross, 701 F.3d 143, 150, 153 (4th Cir. 2012). The only
difference between the two claims is the nature of proof required to
demonstrate that the plaintiff is a “qualified individual with a
disability.” Under the “regarded as” prong, individuals who are
“regarded as having” a physical or mental impairment that
substantially limits one or more of their major life activities are
protected by the ADAAA. See 42 U.S.C. § 12102(1)(A) & (C). To be
“regarded as” having such an impairment, the plaintiff must
demonstrate that he suffers from “an actual or perceived physical or
mental impairment whether or not the impairment limits or is
perceived to limit a major life activity.” [Id.] § 12102(3)(A). Thus,
unlike the “actually disabled” prong, which requires proof that an
impairment substantially limits a major life activity, to plead a
successful claim under the “regarded as” prong, a plaintiff need only
show that he suffers from an impairment, whether or not that
impairment actual[ly] affects him or is only perceived by his employer
and regardless of whether that impairment substantially limits any
major life activity. See id.; see also 29 C.F.R. § 1630.2(l)(1)[.]

West, 2016 U.S. Dist. LEXIS 22526, at *44–45.
{29} In concluding that Plaintiff had failed to plead facts alleging that MWR
regarded him as disabled under the NCPDPA, the Court observed that “Hopkins
himself asserts that even while injured he was ‘probably in the top 10-15%’ of front
tire changers in the Sprint Cup and that MWR did not identify any deficiency in his
job performance when they terminated him.” Hopkins I, 2015 NCBC LEXIS 104, at
*18. The Court also determined that “[f]airly read, the Amended Complaint indicates

generally affect major bodily functions. For example . . . rheumatoid arthritis affects musculoskeletal
functions.” 29 C.F.R. § 1630.2(i) (app.)
that MWR knew of the injury but considered Hopkins a capable worker between the
time he was injured and his surgery.” Id. The Court finally concluded that “Hopkins’
efforts to ‘suck[] it up’ and ‘work through the pain,’ . . . [did] not permit an inference
that MWR treated him as suffering an impairment that was not temporary and
substantially limited his major life activities” under the NCPDPA. In advancing his
“regarded as” claim under the ADA, Plaintiff relies on these same identical facts.
(Second Am. Compl. ¶¶ 39, 21.)
{30} Under the ADAAA, however, Plaintiff needs not meet the same pleading
standard as under the NCPDPA. A plaintiff has sufficiently pleaded that he was
“regarded as” disabled under the ADA where “1) he is actually impaired and such
impairment is known to his employer or 2) his employer perceives him to be
impaired.” West, 2016 U.S. Dist. LEXIS 22526, at *49. In defining “regarded as,” the
statute specifically uses the word “impaired” rather than “disabled,” meaning a
plaintiff no longer must prove that he was regarded as having a substantially limiting
impairment. Id. at *48–49; see also Jordan v. Forfeiture Support Assocs., 928 F.
Supp. 2d 588, 606 (E.D.N.Y. 2013).
{31} Plaintiff has, under this more lenient standard, alleged that he was
impaired by his shoulder injury and that his employer knew of the impairment.
While the Court concluded in Hopkins I that Plaintiff had not alleged that he was
terminated because MWR perceived him as disabled—as defined in the NCPDPA—
Plaintiff has alleged here that MWR terminated him shortly after he notified his
employer that he could not complete the race season on account of his shoulder injury.
(Second Am. Compl. ¶¶ 25–26.) Therefore, Plaintiff has alleged that he was “regarded
as” disabled under 42 U.S.C. § 12102(1)(C).12

12 The exception for “transitory and minor” impairments lasting six months or less still remains for

the “regarded as” prong. 42 U.S.C. § 12102(3)(B). The Court in Hopkins I determined that, based on
the time at which Plaintiff’s ability to sleep and work out were allegedly impaired, “any effect of the
injury lasting more than six months was the result of the decision to delay surgery rather than the
nature of the injury itself.” Hopkins I, 2015 NCBC LEXIS 104, at *14. In light of the ADAAA’s
mandate for broad coverage, however, the Court will permit Plaintiff’s “regarded as” claim to proceed
and address the evidence concerning whether Plaintiff’s alleged impairments were “transitory” or
“minor” at the summary judgment stage of this litigation.
(iii) Reasonable Accommodation/Retaliation
{32} MWR moved to dismiss Plaintiff’s ADA claim on the basis of an “actual or
perceived” disability and, other than on this ground, has not specifically moved to
dismiss Plaintiff’s ADA claim to the extent it is based on Plaintiff’s contentions that
MWR “den[iedl Plaintiff a requested reasonable accommodation, his shoulder surgery
and leave” and “retaliate[d] against Plaintiff for exercising his statutory right to
request a reasonable accommodation.” (Second Am. Compl. ¶¶ 93–94.) Nonetheless,
the Court briefly addresses these contentions in light of the Court’s rulings on
Plaintiff’s claims for actual and perceived disability.
{33} The ADA's implementing regulations instruct that a
covered entity is required, absent undue hardship, to provide a reasonable
accommodation to an otherwise qualified individual who meets the
definition of disability under the ‘actual disability’ prong (paragraph
(g)(1)(i) of this section), or ‘record of’ prong (paragraph (g)(1)(ii) of this
section), but is not required to provide a reasonable accommodation to an
individual who meets the definition of disability solely under the ‘regarded
as’ prong (paragraph (g)(1)(iii) of this section).

29 C.F.R. § 1630.2(o)(4)); Chamberlain v. Securian Fin. Grp., Inc., No. 3:14-cv-00453-
MOC-DCK, 2016 U.S. Dist. LEXIS 20353, at *49 (W.D.N.C. Feb. 19, 2016) (“the
ADAAA, apparently in an attempt to resolve a circuit split, provides that
accommodations need not be given to ‘regarded as’ employees”). Accordingly, because
the Court has concluded that Plaintiff’s claim for “actual disability” shall survive
dismissal on this Motion, Plaintiff’s reasonable accommodation claim should not be
dismissed under Rule 12(b)(6).
{34} In addition, an ADA retaliation claim “leaves employers liable for
terminating employees who are retaliated against for making a good-faith request for
a reasonable accommodation,” whether the employee’s alleged disability is actual or
perceived. Saley v. Caney Fork, LLC, 886 F. Supp. 2d 837, 855 (M.D. Tenn. 2012).
As a result, Plaintiff’s ADA retaliation claim should likewise survive Defendant’s
Motion.
C. Family Medical Leave Act
{35} The Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq., grants
employees the prescriptive right to take up “to a total of 12 workweeks of leave during
any 12-month period” when, inter alia, an employee is burdened with “a serious
health condition that makes the employee unable to perform” his job. 29 U.S.C. §
2612(a)(1).
{36} The FMLA makes clear that it is “unlawful for any employer to interfere
with, restrain, or deny the exercise of or the attempt to exercise” an employee’s FMLA
rights. 29 U.S.C. § 2615(a)(1). A violation of this section is frequently described as
an “FMLA interference” claim. To make out an “FMLA interference” claim, an
employee must demonstrate that (1) he is entitled to an FMLA benefit; (2) his
employer interfered with the provision of that benefit; and (3) that interference
caused harm. Adams v. Anne Arundel Cnty. Pub. Sch., 789 F.3d 422, 427 (4th Cir.
2015) (citing Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002)).
{37} The FMLA further provides that it is “unlawful for any employer to
discharge or in any other manner discriminate against any individual for opposing
any practice made unlawful by [the FMLA].” 29 USCS § 2615(a)(2). A violation of
this section is typically referred to as an “FMLA retaliation” claim. The Fourth
Circuit has recognized that “because FMLA retaliation claims are analogous to Title
VII retaliation claims, they can be analyzed under the burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800–06 (1973).” Ranade v. BT
Ams., Inc., 581 F. App’x 182, 183 (4th Cir. 2014) (citing Nichols v. Ashland Hosp.
Corp., 251 F.3d 496, 502 (4th Cir. 2001)). Thus, to plead an FMLA retaliation claim,
an employee must allege facts showing “that []he engaged in protected activity, that
[the employer] took adverse action against [him], and that the adverse action was
causally connected to [the employee’s] protected activity.” Mercer v. Arc of Prince
Georges Cnty., Inc., 532 F. App’x. 392, 398 (4th Cir. 2013) (quoting Cline v. Wal-Mart
Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998)).
{38} Plaintiff’s FMLA claim here is premised on Plaintiff’s allegation that “MWR
repeatedly discouraged Plaintiff from taking his requested FMLA protected leave and
ultimately terminated him for these requests.” (Second Am. Compl. ¶ 107.) Thus, it
appears that Plaintiff’s claim is for both discouraging Plaintiff from taking FMLA
leave—an FMLA interference claim—and for terminating Plaintiff for requesting
FMLA leave—an FMLA retaliation claim.
{39} Defendants move to dismiss Plaintiff’s FMLA claim on the ground that
Plaintiff has failed to allege compliance with MWR’s usual notice and procedural
requirements. More specifically, MWR argues that Plaintiff’s failure to plead that he
“requested medical leave under the FMLA pursuant to MWR’s written policies as set
forth in the Employee Manual,” (Defs.’ Mem. Supp. Mot. Dismiss 10), renders
Plaintiff’s claim fatally defective in light of 29 C.F.R. § 825.302(d), which permits an
employer to delay or deny an FMLA leave request “[w]here an employee does not
comply with the employer’s usual notice and procedural requirements,” and federal
case law dismissing FMLA claims based on an employee’s failure to comply with the
employer’s internal leave policies and procedures. See, e.g., Righi v. SMC Corp. of
Am., 632 F.3d 404, 411–12 (7th Cir. 2011) (holding that “an employee’s failure to
comply with his employer’s internal leave policies and procedures is a sufficient
ground for termination and forecloses an FMLA claim”); Gibson v. Corning Inc., No.
5:14-CV-105-BO, 2015 U.S. Dist. LEXIS 48905, at *18–19 (E.D.N.C. Apr. 13, 2015)
(dismissing plaintiff’s FMLA claim where plaintiff did not comply with the employer’s
notification or certification requirements).
{40} Defendant’s argument, however, seeks to require Plaintiff to plead facts to
anticipate and defeat Defendants’ expected defenses rather than to identify required
elements omitted from Plaintiff’s pleading. As noted above, an “FMLA interference”
claim must allege that a plaintiff is entitled to an FMLA benefit, interference, and
resulting harm. Adams, 789 F.3d at 427. Similarly, an “FMLA retaliation” claim
must allege protected activity, adverse action, and a causal connection. Mercer, 532
F. App’x. at 398. Neither claim requires a plaintiff to specifically allege compliance
with the employer’s internal leave policies in order to state a valid claim for purposes
of Rule 12(b)(6). See, e.g., Findlay v. PHE, Inc., No. 1:98CV01068, 1999 U.S. Dist.
LEXIS 9760, at *9 (M.D.N.C. Apr. 16, 1999) (“[C]ompliance with employer notice
procedures is not an element of an FMLA retaliation claim which must be specifically
pleaded.”); Thomas v. Dolgencorp, LLC, No. 1:13-cv-128-MHT-PWG, 2015 U.S. Dist.
LEXIS 98167, at *10 (M.D. Ala. June 9, 2015) (“A defendant bears the burden of proof
for an affirmative defense under the FMLA. This includes for the affirmative defense
of lawful reasons for termination.”) (citation omitted).
{41} Rather, a defendant may raise an employee’s failure to comply with the
defendant employer’s policies and procedures as an affirmative defense against the
plaintiff’s claim. See, e.g., Findlay, 1999 U.S. Dist. LEXIS 9760 at *9–10. (“[F]ailure
to meet [employer notice] requirements represents a merit-based defense to Plaintiff’s
contention that she engaged in protected activity and is appropriately raised at the
summary judgment stage.”). Indeed, the cases upon which Defendant relies,
including Righi and Gibson cited above, were decided under Rule 56 after the
development of a factual record, not under Rule 12 as a matter of pleading. See
generally, e.g., Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (“[A] complaint
need not anticipate or overcome affirmative defenses; thus, a complaint does not fail
to state a claim simply because it omits facts that would defeat [an affirmative]
defense.”); Levin v. Miller, 763 F.3d 667, 671 (7th Cir. 2014) (“Complaints need not
anticipate affirmative defenses . . . .”).
{42} Although the North Carolina appellate courts have made clear that
“dismissal under Rule 12(b)(6) on the grounds of [an] affirmative defense is proper if
the complaint on its face reveals an “insurmountable bar” to recovery, Johnson v.
N.C. Dept. of Transp., 107 N.C. App. 63, 66–67, 418 S.E.2d 700, 702 (1992) (citation
omitted), the Court cannot conclude that Defendant’s purported affirmative defense
here compels the dismissal of Plaintiff’s FMLA claim as a matter of law at this stage
of the litigation. Accordingly, the Court concludes that Defendant’s motion to dismiss
Plaintiff’s FMLA claim should be denied at this time, without prejudice to
Defendants’ right to raise this defense by proper motion after appropriate factual
development.
IV.
CONCLUSION
{43} For the foregoing reasons, the Court hereby DENIES in part and GRANTS
in part MWR’s Partial Motion to Dismiss:
a. MWR’s Motion to Dismiss is GRANTED, and Plaintiff’s ADA claim is
DISMISSED with prejudice, but only to the extent Plaintiff’s ADA claim
is based on Plaintiff’s alleged actual disability in the major life activity
of sleeping.
b. Except as provided above, MWR’s Motion to Dismiss is DENIED as to
Plaintiff’s ADA claim, including to the extent Plaintiff’s ADA claim is
based on:
i. Plaintiff’s alleged actual disability in the major life
activities of lifting, reaching, and performing manual
tasks, and in the operation of Plaintiff’s musculoskeletal
function;
ii. Plaintiff’s contention that he was “regarded [by MWR] as”
having a physical or mental impairment that substantially
limits one or more of his major life activities;
iii. MWR’s alleged failure to provide Plaintiff a reasonable
accommodation; and
iv. MWR’s alleged retaliation against Plaintiff for engaging in
protected conduct;
c. MWR’s Motion to Dismiss Plaintiff’s FMLA claim is DENIED, without
prejudice to MWR’s right to move to dismiss Plaintiff’s FMLA claim
based on Plaintiff’s failure to comply with MWR’s usual notice and
procedural requirements, if warranted, after factual development at a
later stage of this litigation.
SO ORDERED, this the 13th day of May, 2016.

/s/ Louis A. Bledsoe, III
Louis A. Bledsoe, III
Special Superior Court Judge
for Complex Business Cases