ORDER
THIS MATTER is before the court on Defendants’ Motion for Summary Judgment (# 21). After being fully briefed, the court heard oral arguments on the motion on January 25, 2016. Having considered the motion, briefs, arguments of counsel, and evidentiary record, the court enters the following findings, conclusions, and Order.
FINDINGS AND CONCLUSIONS
I. Introduction and Factual BackGROUND
The facts of this case are as follows. Defendant Minnesota Life Insurance Company (“Minnesota Life”) sells, via a network of independent agents, life insurance products. (Affidavit of Paul Dwyer, ¶3 (hereinafter, “Dwyer Affid.”)). Defendant Securian Financial Group (“SFG”) is the parent corporation of Minnesota Life. (Id. ¶2). It is also the parent corporation'of nonparty Securian Financial Services (“SFS”).
In 1994, Plaintiff Chamberlain signed an Agent’s Contract with the Minnesota Mutual Life Insurance Company (“MMLIC”) (now named Minnesota Life Insurance Company (Defendant)). (Dep. Ex. 43; Chamberlain Dep. pp. 50-54). The Agent’s Contract appointed Plaintiff to sell MMLIC life insurance products. (Id.) The appointment was non-exclusive, meaning that Plaintiff did not have exclusive rights on any specific territory, but had to compete with other agents for business. (Id. at p. 2). The Agent’s Contract included the following specific language:
During your agency service, you understand and agree that you are an independent contractor, not an employee. Nothing in this contract is intended, nor is it to be construed, to create an employee-employer relationship between you and [General Agent] or between you and us. You are free to use your own judgment: as to the persons from whom you will seek applications; the time which you do it; the place where you do it; and the means by which you do it.
(Id. p. 2) (emphasis added). The Agent’s Contract further specifically limited Chamberlain’s authority on behalf of MMLIC -to three tasks: 1) taking applications; 2) delivering policies; and 3) taking
The Agent’s Contract could be terminated by any party at any time, with or without cause. (Dep.Ex. 43, p. 6). To terminate without cause, 15 days written notice was required. (Id.). After MMLIC changed its name to Minnesota Life on October 1,1998, Minnesota Life sent annual contract updates to the Agent’s Contract. (Dwyer Affid. ¶ 5; Chamberlain Dep. p. 68). In 1994, Chamberlain also signed an Agent Sales Agreement with MMLIC Sales Corporation to become a registered representative to sell securities. (Dep.Ex. 45). MMLIC later changed its name to Ascend Financial Services, Inc., and then to Securian Financial Services (Deposition of Loyall Wilson, p. 40 (hereinafter “Wilson Dep.”); Dwyer Affid. ¶ 6). In 1997, Chamberlain signed an Agent Sales Agreement with Ascend Financial Services, Inc. to become a registered representative to sell securities. (Dep. Ex. 44; Chamberlain Dep. pp. 56-58). The Ascend Agent Sales Agreement provided that the agreement could be terminated by either party at any time, with or without cause. (Dep.Ex. 44, p. 4). To terminate without cause, the terminating party was required to give 15 days written notice to the other party. (Id.).
On May 1, 2001, Ascend Financial Services changed its name to Securian Financial Services, Inc. (“SFS”). (Wilson Dep., p. 40; Dwyer Aff. ¶ 6). Thereafter, annual contract updates came from SFS. (Dwyer Aff. ¶ 6; see also Dep. Ex. 62; Chamberlain Dep. pp. 62-65; Deposition of Dennis Howe, p. 59 (hereinafter “Howe Dep.”)). Therefore, at the time of his termination in October 2012, Chamberlain was an Agent with a contract to sell Minnesota Life products and was a Registered Representative with a contract to sell SFS products. (See Dep. Ex. 11).
By both parties’ accounts, Plaintiff was a strong salesman and often received rewards for his work, including “Chairman’s Club Reward Trips.” See (Howe Dep. at p. 20-21); (Chamberlain Aff. (#33-1) at ¶ 19). In March 2012, Chamberlain and his then-wife attended a Chairman’s Club cruise in the Caribbean. (Chamberlain Dep. at p. 110). On the cruise, Chamberlain’s behavior triggered several complaints from cruise ship staff. (Roach Dep. at p. 47; Dep. Ex. 37 (excerpted), 38, Chamberlain Dep. at pp. 110-13). Defendant states that Chamberlain’s behavior included- running in the halls in a life jacket instead of attending the mandatory safety drill, being rude to staff, over-ordering room service, and being disruptive at dinner. (Roach Dep. pp. 47-48, 60, 115-116; Dep. Ex. 37, 38). Chamberlain denied that he engaged in disruptive or inappropriate behavior. (Roach Dep. at p. 48). One evening on the cruise, the ship’s security team responded to a 911 call from Chamberlain’s cabin. (Chamberlain Dep. at p. 115; Roach Dep. at p. 92; Dep. Ex. 37). The accounts of what triggered the call differ. Chamberlain’s wife reported to the ship crew that she was assaulted by
Plaintiff has previously been treated for alcoholism. See (Chamberlain Dep. at p. 20-21; Chamberlain Aff. at ¶ 53-54). Defendant states that after the cruise incident, individuals at Minnesota Life and SFS engaged in internal discussions regarding the reports of Chamberlain’s behavior on the cruise and that they decided that he posed a reputational risk to the company. (Wilson Dep. at pp. 53-55; 62; Fox Dep. at pp. 81-82, 107-108, 110, 154-56; Dep. Ex. 29). The company then decided that it was willing to maintain Chamberlain as an agent, but only if Chamberlain would agree to certain conditions. (Wilson Dep. at pp. 58-60; Fox Dep. at pp. 119,147,157). In the several months after the cruise ship incident, Minnesota Life and SFS discussed those conditions with Dennis Howe, the general agent at GCG. (Fox Dep. at pp. 103,168, 170; Howe Dep. at pp. 78-79; Dep. Ex. 48). Ultimately, a meeting was held between Chamberlain, Howe, and representatives from Minnesota Life and SFS. (Chamberlain Dep. at p. 128; Wilson Dep. at pp. 55-56; Fox Dep. at pp. 86, 121-22; Howe Dep. at p. 73). After the meeting, Minnesota Life and SFS sent Chamberlain and Howe letters outlining the conditions under which Chamberlain could continue selling their products. See (Chamberlain Dep. at pp. 135-36; Dep. Ex. 9; 10(# 23) at p. 86-87). The letter stated,
We met recently to discuss our concerns regarding your conduct and how it may threaten our reputation. In light of this information, as an alternative to immediate termination, Minnesota Life Insurance Company (“ML”) and Seeurian Financial Services, Inc. (“SFS”) are willing to consider continuing the relationship with you based on the' following conditions ...
Id. Plaintiff objected to several of the conditions, particularly (1) the requirement to prove attendance at AA; (2) the monthly administrative fee; (3) the reservation of rights to change or add conditions; and (4) the release of all claims, both present and future. (Chamberlain Dep. at pp. 138-145; Fox Dep. at p. 123). Ultimately, Chamberlain refused to agree to the conditions and did not sign the letter. (Chamberlain Dep. at p. 145; Fox Dep. at p. 126).
On October 16, 2012, Minnesota Life and SFS provided written notice to Chamberlain that his contracts with Minnesota Life and SFS were being terminated, effective at the end of the 15-day period following the letter. (Chamberlain Dep. at p. 147; Dep. Ex. 30). After Chamberlain’s termination, Dennis Howe terminated GCG’s contracts with Minnesota Life and SFS, taking all of his agents with him. (Howe Dep. at pp. 49-51). Chamberlain concedes he had the opportunity to work with GCG. (Chamberlain Dep. at p. 150). Chamberlain, Howe, and the other GCG agents signed with another broker/dealer, Ques-tar. (Howe Dep. at p. 57; Chamberlain Dep. at pp. 150, 154; Dep. Ex.12). However, the relationship between GCG and Chamberlain was terminated in January 2013. See (Howe Dep. at p. 57; Chamberlain Dep. at p. 151). Questar also terminated Chamberlain’s FINRA registration. (Dep.Ex. 22).
Plaintiff states that he filed a charge of discrimination with the EEOC in April
II. Summary Judgment Standard
Summary judgment shall be granted “if the movant shows 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. Crv, P. 56(a). A factual dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
When ruling on a summary judgment motion, a court must view the evidence and any inferences from the evidence in the light most favorable to the nonmoving party. Anderson,
III. Discussion
Á. Americans with Disabilities Act
The Americans with Disabilities Act (“ADA”) broadly protects the employment rights of the disabled by providing: “[n]o covered entity shall discriminate
1. Independent Contractor versus Employee Analysis
Defendants argue that Plaintiff is not entitled to relief for his ADA claims because he was an independent contractor, not an employee of Defendant. The ADA defines “employee” as “an individual employed by an employer,” 42 U.S.C.A. § 12111(4), and does not extend its protections to independent contractors. See, e.g., Wojewski v. Rapid City Reg’l Hosp., Inc.,
(1) the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; (2) the skill required in the particular occupation; (3) whether - the “employer” or the individual in question furnishes the equipment used and the place of work; (4) the length - of time during which the individual has worked; (5) the method of payment, whether by time or by the job; (6) the manner in which the work relationship is terminated; i.e., by one or both parties, with or without notice and explanation; (7) whether annual leave is afforded; (8) whether the work is an integral part of the business of the “employer”; (9) whether the worker accumulates retirement benefits;(10) whether the “employer” pays social security taxes; and (11) the intention of the parties. ,
Garrett,
a. Control
As to the most' important factor in the independent contractor/employee analysis, level of control, the court must assess “the degree of control of the professional services rendered rather than ‘peripheral, administrative details which were incidental to the rendering of ... services.’ ” Farlow,
Plaintiff argues that he was an employee because he was supervised through Defendants’ mandatory training, (Chamberlain Affidavit (# 33-1) at ¶¶ 49-50; Roach Dep. at p. 22); testing and audits (Wilson Dep. at pp. 23-24); compliance with policy manuals, (Wilson Dep. at pp. 1719; Howe Dep. at p. 59); licensing requirements (Wilson Dep. at pp. 27-28); approval of advertising (Wilson Dep. at pp. 26-27; Chamberlain Aff. at ¶ 31); attendance at meetings and conventions, and being subject to discipline. Plaintiff argues that he was not free to establish his own selling methods and was subject to a high level of Defendants’ control. Defendant also states that he was placed on “heightened supervision,” (Chamberlain Dep. Ex. 53), and that he was subjected to supervision by Dennis Howe of GCG, and Perry Fox of Minnesota Life and Securian. (Chamberlain Aff. at ¶ 37-38). Plaintiff also states that he was disciplined if he did not comply with the testing requirements and denied compensation until compliance was present. {Id. at ¶ 30-31).
By his briefing, Plaintiff argues that the following issues of material fact are present on the question of control: 1) whether his time was monitored through required meetings and required attendance at client events, sales meetings, and annual conferences; 2) that he was not free to and did not select all of his clients, as many were “orphans” or others assigned to him by
Defendant notes that several of Plaintiffs own statements belie these contentions regarding disputed facts, and argues that even if disputed, many of them are not material. While Defendants make no rebuttal to Plaintiffs arguments about orphan clients, the court does not find that fact to be material. As to the amount of time he was monitored, Defendants do not appear to dispute that Plaintiff was required to attend Monday morning GCG sales meetings, but note that in Plaintiffs deposition, he stated that “nobody demanded that [he] be in the office” (Chamberlain Dep. at p. 78) and that he was able to set up his own preferred hours to meet with his clients. See (id. at pp. 79-80). Defendants also note that when testifying about business meetings on Minnesota Life/SFS trips, Plaintiff stated that for some of the supposedly required meetings and presentations, he “basically would not show up at those things.” Id. This prior testimony from Plaintiff is consistent with the testimony from Minnesota Life’s and Securian’s Director of Meetings and Conference Management—that no one was required to attend sales conventions or leadership conferences for which they qualify. (Roach Dep. at pp. 12-13; 7-8). '
Regarding the fact that Plaintiff was required to sell in accordance with procedures set by Defendants, Defendants note that Plaintiff downplayed the extent to which he actually made sales in recent years at his deposition. When asked about whether he was required to work a certain number of hours in a week, Plaintiff testified that he “had hit a point in [his] career that everything [he] touched turned to gold” and that “[i]t wasn’t" selling anymore.” (Chamberlain Dep. at 77-78.) He “would go in and meet with [his] big clients,” and “the client was more like, ‘How much do . I need to write the check for?’ ” Id. He also testified that when he had company representatives come in to talk to his clients or potential clients, approximately 30% to 40% of the time those representatives would be from another company, not from Minnesota Life or SFS. Id. at 180. In addition, he admitted that that he was actually noncompliant with the SFS policies and procedures. Id. at 98. While such evidence does not completely rebut Plaintiffs claims regarding required sales procedures, the court has considered it‘at this stage in the proceedings.
While the court finds that Plaintiff has pointed to some facts in the record showing that he is subject to the control of Defendants to a certain extent, the court believes that the facts here ultimately weigh in favor of finding an independent contractor relationship. Plaintiff is certainly subject to control in that he is held to certain requirements of professionalism and required to sell Defendants’ products in a certain manner, but the degree of control that Defendants had over Plaintiffs actual rendering of professional services is significantly less than that found in traditional employer relationships. Additionally, the court finds it significant'that Plaintiff sets his own hours and handled client meetings on his own schedule. Additionally, he attested that he did not actually attend events that were supposedly required of him, thus indicating that'he was not subject to complete control of Defendants.
b. Other factors
(1) Type of occupation
Insurance salespeople have routinely been found to be independent contractors by courts examining the issue. See, e.g.,
(⅞) Skill required for the occupation
At oral argument, Plaintiff stated that the type of work performed in the course of his duties dp not require a particularly high degree of skill. Defendants do not appear to dispute this argument, and note that the Agent’s Contract makes clear that Plaintiff had limited authority to act on behalf of the company. His authority was limited to three tasks: (1) taking applications; (2) delivering policies; and (3) taking initial premiums. (Dep.Ex. 43). However, the court notes that Plaintiff was very skilled at making sales, and was in fact rewarded for being a top salesman. The Agent’s Contract also required Chamberlain to obtain his own license. Id. Additionally, the court notes that other courts examining the issue have found that on this prong, the skill required for a job as an insurance agent weighs against employee status. See Schwieger v. Farm Bureau Ins. Co. of NE,
(8) Who famished the equipment used at the place of work
GCG (not Defendants) provided and paid for office space, staffing, secretarial help, computers, supplies, and administrative assistance for Plaintiffs use. (Chamberlain Dep. at p. 94; Dep. Ex. 35; Compl. ¶ 13). This factor weighs against finding an employment relationship between Plaintiff and Defendants.
(⅝) Length of time worked
Plaintiff worked for Minnesota Life, Sec-urian, and GCG Wealth Management for nearly nineteen years, from 1994 through October 2012. The court finds that this factor weighs in favor of finding an employment relationship. See Cilecek v. Inova Health Sys. Servs.,
(5) Method of payment
The record indicates that Chamberlain was compensated solely based on his sales. (Chamberlain Dep. at pp. 66, 73-74, 75; Dep. Ex. 62); Compensation included
(6) How the relationship is terminated
The Agent’s Contract between Plaintiff and Minnesota Life could be terminated by any party at any time, with or without cause. See (Dep.Ex. 43, p. 6). To terminate without cause, 15 days written notice was required. Id. The court finds this factor to be neutral. See Cilecek,
(7) Whether annual leave is available
Plaintiff was not paid’ for any vacation time or sick leave, see, (Chamberlain Dep. at p.7980), which weighs against finding an employment relationship. See Farlow,
(8) Whether work is an integral part of employer’s business
Clearly,' sales of securities and life insurance products are integral to Defendants’ business. This factor thus weighs in favor of finding an employment relationship. See, e.g., Weary,
(9) Whether the employer' provides retirement benefits
Based on his sales production, Plaintiff was eligible to participate in voluntary benefits and .retirement programs. (Chamberlain Dep. at p. 93; Fox Dep. at pp. 39-40; Dep. Ex. 1). Chamberlain was provided benefits, including medical, dental and vision, as well as various other benefits, by Minnesota Life. (Chamberlain Aff. at ¶¶ 16-18), This factor weighs in favor of finding an employment relationship. See Cilecek,
(10) Whether the employer pays social security taxes; other tax-related considerations
The facts related to tax and other financial considerations indicate somewhat mixed results in this case. For commissions earned from SFS, and for the value of reward sales conventions and trips, Chamberlain received 1099 . tax forms (used to report income of non-employees), see (Chamberlain Dep. p, 84), which weighs against finding an employer relationship. See, e.g,, Farlow,
(11) Intention of the parties
The Agent’s Contract that Plaintiff signed stated that he understood and agreed that he was an independent contractor, not an employee. (Dep. Ex. 43 (#22-2 at pp. 51-58)). The agreement states:
During your agency sendee, you understand and agree that you are an independent contractor, not an employee. Nothing in this contract is intended, nor is it to be construed, to create an employee-employer relationship between you and [General Agent] or between you and us.
Id. Thus, the stated intent of the parties clearly weighs against finding an employment relationship.
(12) Parties’ beliefs regarding the nature of the employment relationship
Plaintiff has not offered any evidence indicating that he at any time thought he was an employee of Defendants or that he was improperly classified as such. Plaintiff in fact stated several times at his deposition that he identified himself as a financial advisor with GCG, not as an employee of Defendants. (Chamberlain Dep. at pp. 28-29, 39, 99; Dep. Ex. 20; Defs. Br. at p. 5). This factor thus weighs against finding an employment relationship.
c. Conclusion as to Employment Status
Having considered the balance of the applicable factors, the court finds that Plaintiffs employment relationship with Defendants was that of an independent contractor, not employee. The court also finds support for such conclusion in several decisions from the Fourth Circuit and district courts within the Circuit. See, e.g., Daniell v. Old Line Life Ins. Co. of Am.,
2. Alternative Analysis of Plaintiff’s Prima Facie Case
Though the court finds that Plaintiff is an independent contractor and thus not entitled to the protections of the ADA, it has considered whether, if Plaintiff were an employee and thus a “qualified individual” under the ADA, his claims would succeed at this stage in the proceedings.. For the reasons explained herein, the court finds that Plaintiff’s claims related to disability discrimination would fail eyen if he were considered an employee within the meaning of the Act.
a. Whether Plaintiff is Disabled within the Meaning of the ADA
The ADA prohibits covered employers from discharging qualified.employees because they are disabled. 42 U.S.C. § 12112(a). To establish a prima facie ADA disability discrimination claim, plaintiff must first show that he is disabled within the meaning of the Act. Pollard v. High’s of Balt., Inc.,
Here, Plaintiff does not articulate how his impairment of alcoholism “substantially limit[ed]” his ability to perform any “major life activities,” which is a required showing under the Act. In fact, Plaintiff indicated on the face of his Complaint that no one had ever informed him that he was seen to be drunk at work or that his alcoholism had ever affected his work performance. See Complaint at ¶ 32. Plaintiff reiterates the argument that his alcoholism had no effect on his work in his briefing. See, e.g., PI. Resp. (#33) at'pp. 20-21. As Plaintiff correctly notes, there is no evidence in the record that he ever had any difficulties performing his job due to his alcoholism. Plaintiff stated in his deposition that he was sober for nine years but relapsed in October 2011, a few months before the cruise incident. See Chamberlain Dep. at pp. 133-43 ((# 23) at pp. 61-62). He also admitted to drinking at various times on the cruise in March
Finally, the court has considered whether Plaintiff has met the requirement for showing that he is “regarded as” disabled on the third prong. The “regarded-as prong” is subject to the following requirements:
[a]n individual meets the requirement of ‘being regarded as having such an impairment’ if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of 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, the perception of the employer becomes the relevant inquiry for the court. See Hilton v. Wright,
Plaintiff contends that the additional terms’ that Defendants sought to impose on the conditions of his employment show that he was “regarded as” an alcoholic by his employer and punished for his impairment. Plaintiff notes that the additional terms to which Defendants wanted Plaintiff to agree included conditions not imposed on other employees, including proving attendance at Alcoholics Anonymous meetings, submitting to random drug tests, and a zero tolerance policy for drug and alcohol use both on and off the job. See Chamberlain Dep. Ex. 9, 10 ((# 23) at pp. 85-90). In light of the ADAAA’s instruction that “[t]he definition of disability ... shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter,” 42 U.S.C.A. § 12102(4)(A), and because Plaintiff has pointed to evidence that could lead a jury to find that Defendants regarded Plaintiff as having an impairment, the court finds that Plaintiff has made the requisite showing at this stage in the proceedings that an issue of material fact exists as to whether he is disabled within the meaning of the
3. Allegation of Unlawful Termination
“Disability discrimination may be proven through direct and indirect evidence or through the McDonnell Douglas burden-shifting framework.” Jacobs v. N.C. Admin. Office of the Courts,
Plaintiff does not articulate which legal framework under which he pursues his ADAAA claims. See PI. Resp. (# 33) at p. 19. However, the relevant evidence here is that individuals from Minnesota Life and SFS discussed Plaintiff’s behavior on the cruise ship with him after he was kicked off the cruise, then presented him with additional terms to which he had to agree in order to maintain his relationship with them, and ultimately ended the agency relationship when Plaintiff did not agree :to those additional terms. See Chamberlain Dep. at pp. 128-47. The court does not believe that such evidence constitutes direct evidence of discrimination. As such, it will assess Plaintiffs claims under the now-familiar McDonnell Douglas burden-shifting framework. See Ennis v. Nat’l Ass’n of Bus. & Educ. Radio, Inc.,
To prevail under the McDonnell Douglas framework, Plaintiff must first establish a prima facie case of unlawful discrimination. Jacobs,
To state a prima facie claim of discrimination based on termination of employment, Plaintiff is required to show sufficient evidence at summary judgment “to demonstrate that: (1) he was a qualified individual with a disability; (2) he was discharged; (3) he was fulfilling h[is] employer’s legitimate expectations at the time of discharge; and (4) the circumstances of h[is] discharge raise a reasonable inference of unlawful discrimination.” Reynolds v. Am. Nat. Red Cross,
As noted above, the court has found that Plaintiff meets the first prong of this test at this stage in the proceedings. Neither party disputes that Plaintiff was discharged, and Plaintiff thus satisfies the second prong. On the third prong, both parties agree that Plaintiff was a strong salesman, but Defendants argue that he was not meeting them legitimate expectations at the time of discharge because they believed he acted inappropri
As to fourth prong, whether the circumstances of Plaintiffs discharge raise a reasonable inference of unlawful discrimination on the basis of his alcoholism, the court finds that the additional terms to which Defendants wanted Plaintiff to agree, including the requirement to prove attendance at AA and submit to random drug testing, at least raise an inference of discrimination on the basis of a perceived disability.
Defendants argue that even assuming Plaintiff has made out a prima facie ease, they have articulated a legitimate, nondiscriminatory reason for terminating Plaintiff—that he failed to sign the additional terms of employment. Courts have frequently found that an employee’s failure to comply with the terms of a “last chance agreement” constitute a legitimate reason for terminating an employee with substance abuse problems. See, e.g., Klaper v. Cypress Hills Cemetery, No. 10-CV1811 NGG LB,
At oral arguments, Plaintiff conceded that last chance agreements are appropriate tools for employers to use in addressing drug and alcohol substance abuse issues faced by their employees. He also argued that the proposed terms here at least create a question of fact for the jury because the agreement did not simply require Plaintiff to behave better or adhere to a certain level of professionalism. However, as noted above, employers are entitled to impose such conditions. Additionally, Plaintiff argues that the offered agreement at issue here “went too far” because of the proposed prospective release, proof of AA attendance (which would be difficult if not impossible, as such meetings are, by their nature and name, anonymous), the restrictions to drinking both on and off the job, and the provision allowing Defendants to impose additional terms at any time. As noted above, however, courts have routinely found that simply imposing conditions related to an employee’s alcohol abuse, both on and off work time, or singling them out for treatment not required of other employees, is a permissible and reasonable method of attempting to accommodate a substance abuse problem. See, e.g., Longen,
Defendants also argue on the point of offering a legitimate, non-discriminatory reason for terminating Plaintiff that his own statements indicate that he did not believe he was fired for a discriminatory reason. When asked in his deposition why he thought Minnesota . Life and Securian terminated his contract, Plaintiff stated that he thought that-,Kolleen Roach and George Connelly did not want him there anymore because he “didn’t fit the mold” of the companies. See Chamberlain Dep. at p. 148-49. By this, Plaintiff explained that he “spoke out,” was “willing to challenge them,” asked questions that other employees “wanted to know but [were] too
I have read the brief of the Defendants where they cited from my deposition where I was asked about the reason I thought I was terminated. I do believe one reason was the fact that I did not fit their mold and asked a lot of questions. However, I do also believe that the fact that I was an alcoholic was a reason that they discriminated against me, refused to change any of the terms of the Additional Supervision conditions letter, and ultimately, fired me.
PL Aff. (#33-1) at ¶78. However, the court is not required to accept Plaintiffs later testimony as creating a genuine issue of material fact on the issue of discriminatory termination where submitted affidavits are inconsistent with prior testimony. See Rohrbough v. Wyeth Labs., Inc.,
Turning to the final step— which requires Plaintiff to rebut Defendants’ statement regarding a legitimate, non-discriminatory reason for terminating Plaintiffs employment by showing that such reason was mere pretext for discrimination—the court notes that Plaintiff nowhere mentions the word “pretext” in his brief, but does seem to assert evidence of pretext by way of comparator evidence. See, e.g. (Pl.Resp.(# 33) at p. 13-14) (discussing testimony from Ms. Roach that historically, there had been several instances of misconduct at Chairman’s Club events, including destruction of property, a physical fight, a domestic altercation, and being kicked out of a hotel due to noisiness). To show pretext, Plaintiff may introduce evidence to show that “the employer’s proffered explanation is unworthy of credence,” Holland v. Washington Homes, Inc.,
Though Plaintiff argues that other agents of Defendants misbehaved on work trips and at other events, see (PI. Resp.(# 33) at p. 13-14), Plaintiffs factual assertions as to his co-workers’ misconduct falls far short of showing that they are “similarly situated” within the meaning of the employment discrimination analysis outlined above. Perhaps most significantly, Plaintiff has failed to explain how other poor behavior is tantamount to getting into a physical altercation with a spouse that resulted in an emergency call, and ultimately being kicked off of a cruise ship.
Given that Defendants have offered a legitimate reason for discharging Plaintiff, and Plaintiff has failed to offer any evidence that would allow a jury to determine that such reason was mere pretext, the court finds that under this alternative analysis of Plaintiffs claim for a discriminatory discharge on the basis of a disability, Plaintiffs claim would not survive summary judgment even if he were an employee within the meaning of the ADA.
4. Allegation of Failure to Accommodate
To state a plausible claim for relief in a failure to accommodate case under the ADA, Plaintiff must allege facts establishing: 1) that he had a disability within the meaning of the statute; 2) that the employer had notice of such disability; 3) that with reasonable accommodation he could perform the essential functions of the position; and 4) that the employer refused to make such accommodations. See 42 U.S.C.A. § 12101; Rhoads v. F.D.I.C.,
B. Wrongful Discharge in Violation of North Carolina Public Policy
As to Plaintiffs claim for wrongful discharge brought pursuant to the North Carolina Equal Employment Practices Act (“NCEEPA”), that law states in relevant part:
It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national Origin, age, sex or handicap by employers which regularly employ 15 or more employees.
N.C. Gen.Stat. § 143-422.2. The claim for wrongful discharge can be analyzed under the same analysis as the ADA claim. See, e.g., Moser v. Driller’s Serv., Inc.,
C. Alternative Claim for Breach of Contract
Plaintiff initially brought an alternative claim for breach of contract in his Complaint, see (# 1-1 at ¶¶ 51-55), but failed to respond to Defendants’ arguments regarding this claim in its Motion for Summary Judgment. See (# 33). For this reason alone, the claim can be dismissed because Plaintiff abandoned it. See Fed.R.Civ.P. 56(e); Williams v. Silver Spring Volunteer Fire Dep’t,
D. Alternative Claim for Unjust Enrichment
Plaintiff argues that Defendant was unjustly enriched by his termination based on the fact that he lost income and benefits as a result of his termination, including servicing fees he would have received on existing policies and commissions he would have received from sales of new policies. Plaintiff also argues that Defendant is being unjustly enriched because the premiums generated by the life insurance policies that he sold during his tenure are now going largely to Defendants. “Under a claim for unjust enrichment, a plaintiff must establish certain essential elements: (1) a measurable benefit was conferred on the defendant, (2) the defendant consciously accepted that benefit, and (3) the benefit was not conferred officiously or gratuitously.” Lake Toxaway Cmty. Ass’n, Inc. v. RYF Enterprises, LLC,
E. Summary Judgment as to Defendant SFG
Finally, Defendant argues that summary judgment should be granted as to SFG because it was an improperly named party in this action and Plaintiff has failed to offer evidence sufficient to pierce the corporate veil. As noted above, SFG is the parent company of Minnesota Life and SFS. See Dwyer Aff. (# 22-1, p.) at ¶2. Generally, “a parent corporation (so-called because of control through ownership of another corporation’s stock) is not liable for the acts of its subsidiaries.” Channing v. Equifax, Inc,, No. 5:11-CV-293-FL,
IV. Conclusion
In light of the above analysis, the court finds that even in the light most favorable
ORDER
IT IS, THEREFORE, ORDERED that Defendants’ Motion for Summary Judgment (# 21) is GRANTED and this action is DISMISSED with prejudice. The Clerk of Court shall enter a Judgment in accordance with such Order.
Notes
, Defendants have maintained from the outset of this litigation that Defendant SFG is an improperly named party.
. Deposition Exhibits are available in the record at (# 22-2).
. The court notes that the EEOC right to sue notice does not appear anywhere in the record. However, in Defendants' Answer to the , Complaint (# 5), which was removed from state court, Defendants concede that Plaintiff timely filed an EEOC charge. See id. at ¶ 38. As Defendants do not assert any defenses regarding the EEOC notice (i.e. for untimeliness), the court will assume without deciding that the EEOC letter was properly received by Plaintiff and that he exhausted his administrative remedies before filing this lawsuit, See Rudolph v. Buncombe Cnty. Gov’t ,
. EEOC regulations provide, "[a]n impairment is a disability within the meaning of this section if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the.general population.” 29 C.F.R. § 1630.2(j)(l)(ii). However, the impairment "need not prevent, or significantly or severely restrict, the individual from performing a major life activity” to be "substantially limiting," Id. "The term 'substantially limits' shall be construed broadly in favor of expansive coverage” and is "not meant to be a demanding standard." Id. § 1630.2(j)(l)(i). Examples of "major life activities” include “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working” and operation of a major bodily function. Id. § 1630.2(i)(l).
. The court notes that it applies the standards articulated in the ADA Amendments Act (“ADAAA”), which took effect January 1,
. By the complaint, Plaintiff also seemed to assert that his attention deficit disorder (“ADD”) constituted a disability, but when questioned at oral arguments about whether he still contended that his ADD constituted a disability within the meaning of the ADA, Defendant conceded that there was no evidence in the record to that effect. The court will thus only discuss Plaintiff's allegations of disability due to alcoholism.
. On a motion for summary judgment, a mov-ant may demonstrate "that a genuine issue of material fact exists by referencing matters in the record, including depositions and affidavits.” In re Family Dollar FLSA Litig.,
If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.
Id. at 513 (4th Cir.2011) (citing Barwick v. Celotex Corp.,
. Under North Carolina law, "[a] corporate parent cannot be held liable for the acts of its subsidiary unless the corporate structure is a sham and the subsidiary is nothing but a