Reed v. Buckeye Fire Equipment

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-1481

RAMSEY REED,

Plaintiff - Appellant,

versus

BUCKEYE FIRE EQUIPMENT; BRYAN BOWER,

Defendants - Appellees.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
Chief District Judge. (3:02-cv-00205)

Argued: May 23, 2007 Decided: July 30, 2007

Before KING and DUNCAN, Circuit Judges, and WILKINS, Senior Circuit
Judge.

Affirmed in part; reversed and remanded in part by unpublished per
curiam opinion.

ARGUED: Stephen Luke Largess, FERGUSON, STEIN, CHAMBERS, GRESHAM &
SUMTER, P.A., Charlotte, North Carolina, for Appellant. George
Bryan Adams, III, VAN HOY, REUTLINGER, ADAMS & DUNN, Charlotte,
North Carolina, for Appellees. ON BRIEF: Philip M. Van Hoy, VAN
HOY, REUTLINGER, ADAMS & DUNN, Charlotte, North Carolina, for
Appellees.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Ramsey Reed (“Appellant”) appeals the district court’s grant

of summary judgment in favor of Buckeye Fire Equipment Company

(“Buckeye”) and Bryan Bower (collectively, “Appellees”) on various

claims related to the termination of his employment on April 30,

2001. He alleges that, in firing him while he was on medical

leave, Buckeye violated the Family and Medical Leave Act (the

“FMLA”), 29 U.S.C. § 2601, et seq. and North Carolina’s prohibition

against age discrimination in employment, N.C. Gen. Stat. § 143-

422.2. He also alleges that Bryan Bower obstructed justice and

engaged in a civil conspiracy by attempting to blackmail him into

not filing this lawsuit.

The district court discerned no material issue of fact in any

of Appellant’s claims and granted summary judgment in favor of

Appellees on both the FMLA and state-law claims. Our review of the

record reveals, however, that Appellant has presented triable

issues in the claims against Buckeye and the obstruction of justice

claim against Bryan Bower. Accordingly, we reverse the district

court’s order on the FMLA, age discrimination and obstruction of

justice claims, and affirm on the civil-conspiracy claim. We set

forth the pertinent facts below, reciting them in the light most

favorable to Appellant. See Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986).

2
 I.

Buckeye is a family-owned business headquartered in Kings

Mountain, North Carolina that manufactures and sells firefighting

equipment. Tom Bower and his two sons, Kevin and Bryan, own and

operate the company.

On January 25, 2001, Appellant was involved in a serious car

accident that necessitated medical leave. He suffered a severe

compound fracture to his leg that punctured his skin in several

places and required immediate surgery. Appellant was hospitalized

for several days following the surgery and underwent rehabilitative

therapy thereafter.

On the day of the accident, Appellant’s wife called Kevin

Bower, Buckeye’s Vice President of Operations, to inform him of her

husband’s accident and injury. Once Appellant was discharged from

the hospital, he also spoke with Kevin Bower and informed him that

he would require at least two months’ leave from work to recover.1

1
Buckeye advances a different account of its contact with
Appellant following his accident. According to Buckeye, Kevin
Bower spoke with Appellant on January 26, the day following his
accident, and followed up with a letter the same day. In the
letter, Kevin Bower informed Appellant that his leave fell under
the FMLA and he had up to twelve weeks to return to work “per our
discussion this morning.” J.A. 417. During discovery, Buckeye
produced an unsigned copy of this letter that bore a facsimile
stamp indicating that it had been sent from Tom Bower’s home office
on April 29, 2002, seven days after Appellant filed this suit.
Appellant contends that he did not talk with Kevin Bower on
January 26 and indeed could not have because of the painkillers he
was taking. He further asserts that he never received the letter
provided during discovery and that Buckeye forged it after the fact
to improve its legal position in this lawsuit. For purposes of

3
Appellant updated Kevin Bower from time to time regarding his

medical progress, which was steady until late-February.

On February 15, 2001, Buckeye’s maintenance manager, Howard

Corbin (“Corbin”), called Appellant to seek his help with several

equipment problems that had arisen during his absence. Appellant’s

doctor cleared him to return to work on a limited basis in a

wheelchair, and Appellant returned to Buckeye on February 23. He

fixed a problem with an automated label machine and taught the

maintenance crew how to resolve it in his absence. For a variety

of reasons, however, Appellant had to delay fixing a separate

problem with a gauge assembly machine until the following week.

Over the intervening weekend, Appellant was hospitalized for

treatment of a serious blood clot in his leg. He remained in the

hospital for two days and was placed on blood-thinning medication

before being discharged with an order to remain homebound for six

weeks. Appellant spoke with Buckeye’s comptroller about this

setback, but was unsuccessful in several attempts to reach Kevin

Bower about the same.

Following treatment for the blood clot, Appellant’s recovery

continued at a steady pace. By the end of March 2001, he was using

a walker, was cleared by his doctors to leave his house, and was

receiving outpatient physical therapy. By mid-April, he was

reviewing the motion for summary judgment, we assume, as did the
district court, that Appellant did not receive the letter in
question.

4
walking with a cane and had purchased a new truck in preparation

for his return to work. On April 17, Appellant told Corbin that he

would return to Buckeye full-time on May 7. However, Tom Bower

called Appellant on April 30 to tell him that Buckeye was

terminating his employment for performance-related reasons. By

that time, Appellant had been on medical leave for nearly thirteen-

and-a-half weeks.

A. Contested Workplace Issues

The parties dispute virtually every material fact underlying

Appellant’s termination. To substantiate its claim of inadequate

job performance, Buckeye points to a number of equipment problems

arising both during and after Appellant’s tenure, a change in

Appellant’s job title in 1996, and a series of personal conduct

issues. Appellant disputes the significance of the equipment

problems, contests Buckeye’s characterization of the change in job

title, and challenges the claims of unprofessional conduct. We now

briefly summarize each episode in contention and the nature of the

dispute.

1. The Weld Line

In 1997, Buckeye contracted with a local manufacturer, Sotec,

to develop a weld line to automate the production of its fire

extinguisher cylinders. Tom Bower wanted the automated line to

produce two hundred forty welded cylinders per hour and pay for

itself within three years. Sotec agreed to Buckeye’s design

5
specifications and promised to deliver the weld line within twenty

to twenty-two weeks.

Appellant, as Buckeye’s head engineer, spent significant time

at Sotec’s plant working closely with its personnel during the

production and testing phase of the line. The project experienced

technical problems and the line remained nonfunctional after

eighteen months, far beyond the contractual time frame. Buckeye

contends that Appellant failed to keep it fully informed of these

problems. Kevin Bower eventually grew so frustrated with Sotec

that he ordered the line moved to Buckeye’s facilities for

completion. It became apparent that even then the weld line could

not meet the expectations of Buckeye’s management.

Buckeye contends that Appellant was principally responsible

for this project and that its problematic history, along with his

lack of communication regarding the problems during the line’s

construction, is evidence of his poor job performance. Appellant

argues that the problems with the weld line lay in its

construction, which was Sotec’s responsibility, and not in the

design that he developed. He additionally contends that he kept

Buckeye fully apprised of the project’s status and that he was not

principally responsible for the weld line.

2. Gauge Assembly Machine

Sometime in either 1996 or 1999 (Appellant claims the former

and Buckeye the latter), Buckeye purchased a machine to automate

6
the gauge assembly for its fire extinguishers. The machine never

functioned properly because of design flaws attributable to the

original manufacturer. As a result, Buckeye required the

manufacturer to redesign and rebuild parts of the machine. The

machine’s laser sensors proved particularly troublesome, requiring

constant manual adjustment. When Appellant was on medical leave,

the gauge assembly machine began malfunctioning, with expensive

consequences.

Buckeye contends that these events reflect poorly on

Appellant’s performance because he selected the laser sensors and

was responsible for the project. Appellant contends that he played

no role in the machine’s poor design and was able to circumvent it

with manual adjustments that kept the machine running for more than

five years. He further attributes the need for costly repairs to

the damage caused by maintenance workers’ maladroit attempts to

perform manual adjustments in his absence.

3. Automated Labeling Machine

In 1997, Buckeye purchased an automation line that was

designed to fill fire extinguishers with a dry chemical. Appellant

convinced Tom Bower to add a $65,000 component to the line that

automatically applied labels to the fire extinguishers. Buckeye

claims that this machine never worked properly and that it was on

the verge of purchasing a new labeling machine for $20,000 at the

time the parties were conducting discovery in this lawsuit.

7
Appellant counters that the machine worked perfectly for a year or

more and only ran into problems when Buckeye switched to a cheaper

label that was not compatible with the machine.

4. Box Assembly Machine

In 2000, Buckeye installed a machine in its automated cylinder

fill line to assemble boxes in which to ship fire extinguishers.

However, the boxes did not stay closed properly, resulting in

extinguishers falling out and generating customer complaints.

Buckeye claims that Appellant had primary responsibility for

installing the machine and ensuring that it was operational, and

that it did not work properly until several years after Appellant’s

termination. Appellant responds that the problem involved the use

of a glue that did not dry quickly enough in warm weather and was

corrected before he was fired by using a different type of glue.

5. Change in Appellant’s Job Title

Buckeye hired Appellant in 1994 as General Manager. The

parties dispute, however, whether Appellant ever exercised

authority commensurate with the title. Buckeye asserts that

Appellant supervised both manufacturing and engineering operations

of the company and had eighty-five employees reporting to him.

Appellant argues that he was relegated to a subordinate role devoid

of the autonomous power or managerial responsibility that Buckeye

now claims.

8
 In any event, the parties agree that Buckeye changed

Appellant’s job title to Head of Engineering in 1996 in the

reshuffling that followed the retirement of Buckeye’s chief

engineer and president. In this capacity, Appellant was to

supervise “product development, engineering changes of existing

products and all installation of new machinery to automate

manufacturing operations.” J.A. 431. Buckeye characterizes the

change as a demotion; rather than exercising responsibility for all

plant management, Appellant was limited to supervising plant

operations involving automation, and his direct reports were

reduced from eighty-five to one. Appellant maintains that the

adjustment simply realigned his title with his actual

responsibilities.

Although Appellant initially resisted the change in positions,

he eventually acceded to it. Buckeye gave him a $2,000 salary

increase and issued a positively-worded announcement to all of the

company’s employees. Buckeye claims that the salary increase was

an inducement for Appellant to stay with the company and the

announcement was intended to spare him embarrassment.

6. Appellant’s Personal Habits

Buckeye contends that Appellant’s personal habits and

professional demeanor caused problems in the workplace.

Specifically, it claims that: (1) Appellant violated its policy on

smoking breaks by frequently leaving the plant floor, in full view

9
of other employees, to smoke; (2) it received complaints that

Appellant left work early, arrived late, and was often visibly

hungover; and (3) Appellant bragged about his gambling exploits and

waived wads of cash around in front of hourly employees who earned

less then he. Buckeye claims that it warned Appellant about this

behavior on numerous occasions. Although there was no record of

any warnings in Appellant’s file, Buckeye states that it was

company policy not to reprimand managers in writing. Appellant

disputes the allegations. He claims to have stopped smoking before

the alleged smoke breaks, that he never received negative feedback

from his supervisors, and that his behavior did not differ in any

significant respect from that of others at the plant.

B. Bryan Bower’s Alleged Threat

After Appellant’s termination, he sent a demand letter to Tom

Bower seeking monetary damages and reinstatement in settlement of

his claims. He further offered to forego reinstatement if Buckeye

paid him roughly two years’ salary and provided a good letter of

reference. Tom Bower turned the letter over to Bryan Bower, who

handled most of Buckeye’s legal matters. Before responding, Bryan

searched through Appellant’s personal effects at the plant and

discovered romantic correspondence sent to Appellant by a woman to

whom he was not married. Bryan brought this note to his father’s

attention.

10
 A subsequent phone call between Appellant and Bryan Bower is

another source of significant dispute. Appellant alleges that

Bryan, acting at his father’s behest, tried to blackmail him by

threatening to reveal the correspondence to Appellant’s wife if he

proceeded with this lawsuit. Bryan claims that he called Appellant

to attempt to resolve this dispute amicably, and neither made

threats nor discussed doing so with anyone. He acknowledges

mentioning the letter to Appellant, but only to ask Appellant to

have his girlfriend stop sending correspondence to Buckeye.

C. Trial Court Proceedings

Appellant filed suit alleging that Buckeye violated the FMLA

by terminating him while he was on medical leave, and engaged in

unlawful age discrimination by transferring his job

responsibilities to younger workers after firing him. Appellant

further alleged that Bryan Bower engaged in civil conspiracy and

obstruction of justice by attempting, at Tom Bower’s behest, to

blackmail him into foregoing suit. Appellees moved for summary

judgment on all claims, which the district court granted. See Reed

v. Buckeye Fire Equip. Co., 422 F. Supp. 2d 570, 572 (W.D.N.C.

2006). Appellant timely appealed.

II.

We review de novo an appeal from a grant of summary judgment

and apply the same standard as the district court. Howard v.

11
Winter, 446 F.3d 559, 565 (4th Cir. 2006). Summary judgment is

only appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.” Fed. R. Civ. P. 56(c). A genuine issue of

material fact exists “if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Liberty

Lobby, 477 U.S. at 248. We must construe the facts in a light most

favorable to Appellant as the nonmoving party. See id. at 255.

Guided by these principles, we turn to a consideration of

Appellant’s arguments.

A.

First, Appellant challenges the district court’s grant of

summary judgment on his FMLA claim. He alleges that Buckeye

violated the FMLA by failing to provide him with the required

notice of his rights thereunder. He contends that such failure is

actionable because it both interfered with and caused prejudice to

his FMLA rights by depriving him of the knowledge that, in order to

avoid losing his job, he needed to return to work within the twelve

weeks of protected leave. He claims that if he had received the

required notice, he could have structured his medical care to

return within this time frame and consequently would not have been

fired by Buckeye. Buckeye counters that it provided the required

12
notice and regardless terminated Appellant for reasons unrelated to

his medical leave.

In its summary judgment analysis, the district court presumed

that Buckeye failed to send Appellant the required notice, thereby

interfering with his FMLA rights. However, the district court

granted Buckeye’s motion for summary judgment after concluding that

any such lack of notice did not prejudice Appellant’s right to

return to his job because Buckeye fired him for reasons independent

of his medical leave. We must disagree. We are constrained on

this record to find sufficient factual disputes to preclude summary

judgment.

Congress passed the FMLA to provide workers flexibility in

managing their work and family responsibilities by guaranteeing

reasonable medical leave in certain circumstances. See 29 U.S.C.

§ 2601(b). An “eligible employee” has the right to take up to

twelve weeks’ leave from work during any twelve-month period

“[b]ecause of a serious health condition that makes the employee

unable to perform the functions of” his or her job.2 29 U.S.C. §

2612(a)(1)(D). The employee has an accompanying right to return to

the same or an equivalent position at the conclusion of the leave

2
It is uncontested that Appellant qualifies as an “eligible
employee,” see 29 U.S.C. § 2611(2) (definition of “eligible
employee”), and that his injuries constituted a “serious health
condition” that impeded his ability to perform his job, see 29
U.S.C. § 2611(11) (definition of “serious health condition”).

13
period.3 29 U.S.C. § 2614(a)(1).

The right to reinstatement following FMLA leave is not

unqualified. 29 U.S.C. § 2614(a)(3)(B); See Also Yashenko v.

Harrah’s NC Casino Co., LLC, 446 F.3d 541, 547 (4th Cir. 2006).

“An employee has no greater right to reinstatement . . . than if

the employee had been continuously employed during the FMLA leave

period.” 29 C.F.R. § 825.216(a). In other words, the mere fact

that an employee takes leave under FMLA offers no protection from

decisions adversely affecting employment status.

The FMLA requires an employer to provide an employee

requesting leave notice of his or her rights within a reasonable

time, “one or two business days [after the request] if feasible.”

29 C.F.R. § 825.301(c). If the employer learns of the employee’s

need after the leave has commenced, “notice should be mailed to the

employee’s address of record.” Id. Such notice should include, as

appropriate, indication “that the leave will be counted against the

employee’s annual” twelve weeks of leave protected by the FMLA, 29

C.F.R. § 825.301(b)(1)(I), and that the employee has the “right to

restoration to the same or an equivalent job upon return” to work,

29 C.F.R. § 825.301(b)(1)(vii).

An employer who prevents or impedes an employee from

exercising his or her FMLA rights is liable to the employee for, as

3
There are narrow exceptions to this reinstatement requirement
that are not applicable here. See § 2614(b).

14
appropriate, damages and equitable relief. 29 U.S.C. §§ 2615(a),

2617(a). To state such a claim, the employee must prove that the

employer: (1) interfered with his or her exercise of FMLA rights;

and (2) caused prejudice thereby. Ragsdale v. Wolverine World

Wide, Inc., 535 U.S. 81, 89 (2002). Actionable interference exists

where the employer impedes, restrains, or denies the exercise of

any rights protected the FMLA. 29 C.F.R. § 825.220(a). Prejudice

exists where an employee loses compensation or benefits “by reason

of the violation,” 29 U.S.C. § 2617(a)(1)(A)(i)(I); sustains other

monetary losses “as a direct result of the violation,” §

2617(a)(1)(A)(i)(II); or suffers some loss in employment status

remediable through “appropriate” equitable relief, § 2617(a)(1)(B).

We consider each of these elements in turn.

With respect to the interference prong, the district court

assumed that Buckeye interfered with Appellant’s FMLA rights by

failing to provide the required notice. Buckeye contends that it

satisfied its notice obligations by mailing a letter to Appellant

on January 26, 2001 that apprised him of his FMLA rights and the

twelve-week limit on his medical leave. Appellant responds that

Buckeye neither sent this letter nor otherwise provided notice of

his rights. The evidence in the record is both ambiguous and

disputed. Viewed in the light most favorable to Appellant, we must

15
presume that Buckeye did not send the letter4 and therefore failed

to satisfy 29 C.F.R. § 825.301(c).5 Such failure constitutes

actionable interference. See 29 C.F.R. § 825.220(b) (“Any

violations of the [FMLA] or of [its governing] regulations

constitute interfering with . . . the exercise of rights provided

by the [FMLA].”).

4
We decline to address Appellant’s request to sanction Buckeye
for allegedly falsifying the January 26 letter. Before the
district court, Appellant raised the specter of manufactured
evidence, but he did not formally request the sanctions that he now
seeks. The district court sharply rebuked Appellant for his
allegations of impropriety, but did not have occasion to address
them in the context of a formal request for sanctions. Although
the district court’s opinion leaves no doubt of its view of
Appellant’s allegations, it would be inappropriate for us to
address this issue in the first instance. See Muth v. United
States, 1 F.3d 246, 250 (4th Cir. 1993) (court generally declines
to hear issues raised for the first time on appeal absent plain
error or fundamental miscarriage of justice).
5
We find no merit in Buckeye’s assertion that its duty to
provide notice was either satisfied or obviated by Appellant’s
independent awareness of and access to information about the FMLA.
The regulations governing the FMLA clearly indicate that an
employer must provide the notice set forth in 29 C.F.R. §
825.301(b) when it learns of an employee’s need to take leave. See
29 C.F.R. § 825.301(c). This requirement is worded as an
imperative--“notice shall be given”--that does not take account of
what the employee may know or have access to or any notice
previously supplied by the employer. See id. Therefore, what
Appellant may have known or had access to is immaterial to the
question of whether Buckeye satisfied its obligation to provide
notice under § 825.301(c).
Further, the circumstances of this case demonstrate the
utility of this notice requirement. Despite the fact that
Appellant was aware of the FMLA, knew that Buckeye had a FMLA
policy, and had access to various information about FMLA’s
protections, he did not know that FMLA applied either to his job
position in general or specifically to the medical leave at issue
here. The notice required by § 825.301(c) would have disabused him
of both misconceptions.

16
 We therefore consider whether Appellant has adduced sufficient

evidence to survive summary judgment that such interference

prejudiced him. Buckeye contends that Appellant was a substandard

employee whom it had considered firing long before his FMLA leave

and whom it ultimately fired for poor job performance. Appellant

argues that there are numerous disputes about the underlying facts,

and that the district court erred by resolving those disputes in

Buckeye’s favor. Viewing the evidence in a light most favorable to

Appellant, we must agree.

To substantiate its claims of poor job performance, Buckeye

points to a series of operational problems with projects on which

Appellant worked, certain of his personal habits, and aspects of

his employment history. Appellant, however, has responded with

evidence that calls each incident into legitimate dispute. For

example, Buckeye argues that Appellant was responsible for the

problematic development and implementation of the weld line because

of his close involvement in its design and construction. However,

other evidence suggests that the problems with the line stemmed

from the manufacturer’s decision to use inadequate construction

materials. Viewing these facts in Appellant’s favor, we cannot

conclude as a matter of law that this incident is demonstrative of

his alleged poor job performance.

Similar factual disputes exist for each of the other incidents

at issue. With respect to the gauge assembly machine, Buckeye

17
argues that Appellant equipped the machine with a poorly

functioning laser sensor that required constant manual adjustment

and eventual replacement at a significant cost. Other evidence

suggests that, until he went on medical leave, Appellant was able

to keep the machine running despite problems caused by the original

manufacturer’s poor design. With respect to the box assembly

machine, Buckeye contends that Appellant selected a faulty machine

that could not assemble boxes properly. Other evidence suggests

that the problem with the machine was easily resolved when a new

type of glue was used to seal the assembled boxes. With respect to

the label machine, Buckeye contends that Appellant selected a

faulty machine that could not properly apply labels. Other

evidence suggests that the machine functioned properly until

Buckeye switched to a less expensive label that was not fully

compatible with the machine.

Buckeye’s contentions regarding Appellant’s personal habits

and employment history remain in similar dispute. Buckeye asserts

that Appellant took excessive smoking breaks, but other evidence

suggests that he had quit smoking before these alleged incidents.

Buckeye asserts that it repeatedly warned Appellant about

inappropriate behavior around the other employees, but there is no

documentary evidence to substantiate this assertion, which

Appellant disputes. Buckeye asserts that it demoted Appellant from

General Manager to Head of Engineering in 1996, but other evidence

18
suggests that Appellant’s job duties were relatively consistent

throughout his employment.

Ultimately, Buckeye has not adduced sufficient undisputed

facts to demonstrate that it fired Appellant solely for reasons of

job performance. We cannot conclude, at this stage of the

proceedings, that Buckeye’s failure to provide notice did not

prejudice Appellant’s right to reinstatement under the FMLA.

Because Buckeye has not demonstrated an absence of a material issue

of fact regarding either element of Appellant’s FMLA claim, summary

judgment is inappropriate.

B.

Next, Appellant challenges the district court’s grant of

summary judgment on his claim for age discrimination. The public

policy of North Carolina, as stated in N.C. Gen. Stat. § 143-422.2,

prohibits employers from discriminating against their employees on

the basis of age. In implementing this policy, North Carolina

courts follow the evidentiary standards and principles of law

applied to federal discrimination claims. N.C. Dept. of Correction

v. Gibson, 301 S.E.2d 78, 85 (N.C. 1983). The federal Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.,

governs claims of age-based discrimination.

Because Appellant does not put forth any direct or

circumstantial evidence of discrimination, we analyze his claim

under the burden-shifting framework set forth in McDonnell Douglas

19
Corp. v. Green, 411 U.S. 792 (1973). See Laber v. Harvey, 438 F.3d

404, 430 (4th Cir. 2006). Under this framework, Appellant has the

initial burden of proving a prima facie case of discrimination.

Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285

(4th Cir. 2004). For purposes of the ADEA, Appellant must show

that: (1) he was in the protected age group (i.e., over the age of

forty); (2) he was discharged; (3) his job performance met the

legitimate expectations of his employer at the time he was fired;

and (4) he was replaced by an individual that was substantially

younger. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

142 (2000).

If Appellant is able to establish each of these elements, the

burden then shifts to Buckeye “to articulate a legitimate,

nondiscriminatory reason for the adverse employment action,” Hill,

354 F.3d at 285. If Buckeye carries this burden, Appellant must

then show that the “proffered permissible reason . . . is actually

a pretext for discrimination,” id. Specifically, Appellant must

“prove by a preponderance of the evidence that the legitimate

reasons offered by [Buckeye] were not its true reasons, but were a

pretext for discrimination.” Reeves, 530 U.S. at 143 (internal

quotations omitted).

We turn first to Appellant’s prima facie case of

discrimination. He easily satisfies the first two elements because

it is undisputed (1) that he was over the age of forty when he lost

20
his job and (2) that Buckeye fired him. Viewing the facts in the

light most favorable to him, as we must at this juncture, we

believe that Appellant satisfies the third and fourth elements as

well.

With respect to the third element, for summary judgment

purposes there is sufficient evidence to establish that Appellant

was meeting Buckeye’s legitimate expectations when he was

terminated. Buckeye continuously employed Appellant at a high

level of its organization for nearly seven years, and granted him

several raises and bonuses during that time. Buckeye gave him

significant responsibility for designing, procuring, supervising,

troubleshooting, and repairing critical components of the

manufacturing infrastructure for its most important products.

There is no documentation of any of the alleged problems with

Appellant’s performance or work habits. Therefore, we find that

there is at least a triable issue of fact in this regard.

We likewise conclude that Appellant has adduced sufficient

evidence to establish that Buckeye transferred his job duties to

younger workers. Appellant, who was 55-years-old when fired by

Buckeye, contends that Buckeye transferred some of his job duties

to John Classic, a 45-year-old6 employee, and outsourced other of

6
The fact that Classic is also in the class protected by the
ADEA is not material. The Supreme Court has held that the ADEA
does not require an employee in the protected class to lose his job
to someone outside the protected class in order to state a claim.
O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312 (1996).

21
his job duties before hiring Bill Besco, aged forty, to head

engineering. Buckeye responds that it eliminated Appellant’s

position, that John Classic’s duties were materially distinct from

Appellant’s, and that it did not hire a new head of engineering

until several years later. There is evidence, however, to refute

this characterization. For example, Appellant presented evidence

that, after he was fired, Classic assumed certain of Appellant’s

previous duties as liaison to a third-party testing laboratory. In

addition, it is undisputed that Buckeye eventually hired a 40-year-

old as an engineer. Construing these facts in Appellant’s favor,

we find sufficient evidence to satisfy the fourth element of his

ADEA claim.

Because Appellant has established a prima facie case of age

discrimination, we turn to Buckeye’s proffered legitimate

nondiscriminatory reason for his firing. Buckeye’s repeated

assertion that it terminated Appellant for poor job performance,

based on the same operational problems and personal habits

underlying its defense of his FMLA claim, is insufficient for the

reasons stated heretofore. Regardless of the relative strength or

weakness of Appellant’s claims, there remain too many disputed

issues of material fact to warrant an award of summary judgment.

Rather, the essential point is that the plaintiff “lost out because
of his [or her] age.” Id. (emphasis omitted).

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 C.

Appellant next challenges the district court’s grant of

summary judgment in favor of Bryan Bower on the claims of civil

conspiracy and obstruction of justice. Appellant based these

claims on Bryan Bower’s alleged threat, allegedly made at Tom

Bower’s behest, to reveal Appellant’s affair to his wife if he

filed this lawsuit. We consider the civil conspiracy and

obstruction of justice causes of action separately.

1.

To state a claim for civil conspiracy under North Carolina

law, a plaintiff must prove, inter alia, an agreement between two

or more individuals to engage in an unlawful act or to accomplish

a lawful act in an unlawful manner. Lenzer v. Flaherty, 418 S.E.2d

276, 284-85 (N.C. Ct. App. 1992). “[T]he evidence of the agreement

must be sufficient to create more than a suspicion or conjecture in

order to justify submission of the issue to a jury.” Dickens v.

Puryear, 276 S.E.2d 325, 337 (N.C. 1981). The district court here

concluded that Appellant’s civil conspiracy failed because there

was no evidence of an illicit agreement, and we agree.

Appellant has presented no evidence to create anything more

than “a suspicion or conjecture” that Bryan Bower entered an

illicit agreement to blackmail him into foregoing this lawsuit.

Id. Appellant argues that we can infer such an agreement from the

facts that (1) Bryan Bower made the alleged threat after Tom Bower

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asked him to handle Appellant’s demand letter, and (2) Bryan Bower

brought the romantic correspondence to his father’s attention

before using it to attempt to blackmail Appellant. Such an

inference, however, exceeds even the generous construction of the

facts to which Appellant is entitled. There is no factual basis in

the record to suggest that the Bowers ever discussed blackmailing

Appellant, much less reached an agreement do so. Therefore,

Appellant’s conspiracy claim must fail.

2.

In North Carolina, it is a common-law civil offense “to do any

act which prevents, obstructs, impedes or hinders public or legal

justice.” Broughton v. McClatchy Newspapers, Inc., 588 S.E.2d 20,

30 (N.C. Ct. App. 2003) (internal citations omitted). In

Broughton, the North Carolina Court of Appeals affirmed summary

judgment on an obstruction-of-justice claim because the “plaintiff

presented no evidence that her case was in some way judicially

prevented, obstructed, impeded or hindered by the acts of [the]

defendants.” Id. Here, the district court relied on Broughton in

holding that Appellant’s obstruction-of-justice claim failed

because there was no evidence that Bryan Bower’s alleged threat

impeded or hindered this lawsuit. See Reed, 422 F. Supp. 2d at

588-89.

Despite the somewhat cursory conclusion in Broughton, however,

there are other North Carolina decisions finding a legally

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sufficient claim where the defendant attempted to prevent,

obstruct, impede, or hinder justice. See e.g., Burgess v. Busby,

544 S.E.2d 4, 12-13 (N.C. Ct. App. 2001) (upholding obstruction

claim relating to medical malpractice case where the names of

jurors were circulated by defendant to hospital staff after jury

found for injured patient); In re Kivett, 309 S.E.2d 442, 462 (N.C.

1983) (finding judge removable for obstruction of justice where he

unsuccessfully called on another judge to delay grand jury

investigation); see also Jackson v. Blue Dolphin Commc’ns of N.C.,

226 F. Supp. 2d 785, 794 (W.D.N.C. 2002) (upholding obstruction

claim where defendant fired plaintiff-employee after she refused to

give false testimony in an unrelated proceeding); State v. Rogers,

315 S.E.2d 492, 512-13 (N.C. Ct. App. 1984) (finding sufficient

evidence to sustain a conviction of an attorney for attempting to

interfere with a witness where the attorney engaged in overt acts

designed to induce a witness to leave court so that the attorney

could obtain a dismissal of the charges against his client).

We note, as well, that the North Carolina General Statutes

setting forth specific crimes under the heading of Obstructing

Justice also focus on the acts or attempted acts of the alleged

obstructor, rather than the reaction of the victim. See e.g. N.C.

Gen. Stat. § 14-226 (“If any person shall . . . intimidate or

attempt to intimidate any person who is . . . a witness in any

[state court], or prevent or deter, or attempt to prevent or deter

25
any person . . . acting as such witness from attendance upon such

court, he shall be guilty of a Class H felony.” (emphasis added)).

Based on our review of the precedent, we conclude that summary

judgment was inappropriate here as well. Taking Appellant’s

allegation as true, Bryan Bower’s action in threatening to reveal

compromising correspondence to Appellant’s wife if he proceeded

with this lawsuit was so designed to impede his access to the legal

system as to support a claim of obstruction of justice under North

Carolina law.

III.

Based on the foregoing, we reverse the district court’s order

granting summary judgment in favor of Appellees Buckeye Fire

Equipment Company and Bryan Bower on Appellant Ramsey Reed’s FMLA,

age-discrimination, and obstruction of justice claims, and remand

to the district court for further proceedings. We affirm the

district court’s grant of summary judgment in favor of Appellee

Bryan Bower on Appellant’s claim of civil conspiracy.

AFFIRMED IN PART;
REVERSED AND REMANDED IN PART

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