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Kemp v. JHM Enterprises, Inc.

United States District Court, D. South Carolina, Greenville Division

March 7, 2016

P. David Kemp, Plaintiff,
JHM Enterprises, Inc. Defendant.


Timothy M. Cain United States District Judge

This matter is before the court on a motion for summary judgment filed by JHM Enterprises, Inc. (“JHM”). (ECF No. 33). P. David Kemp (“Kemp”) filed a response, and JHM filed a reply. (ECF Nos. 41, 45). In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(g), D.S.C., this matter was referred to a magistrate judge for pretrial handling. Now before the court is the magistrate judge’s Report and Recommendation (“Report”), recommending that the court deny JHM’s motion for summary judgment as to the ADA claims and grant its motion for summary judgment as to the intentional infliction of emotional distress claim. (ECF No. 54). Kemp has filed timely objections to the Report (ECF No. 55) and JHM has responded to those objections (ECF No. 60). JHM has also filed timely objections to the Report (ECF No. 56) and Kemp has responded to those objections (ECF No. 59). Accordingly, the matter is now ripe for review.

The Report has no presumptive weight and the responsibility to make a final determination in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 270- 71 (1976). In making that determination, the court is charged with conducting a de novo review of those portions of the Report to which either party specifically objects. See 28 U.S.C. § 636(b)(1). Then, the court may accept, reject, or modify the Report or recommit the matter to the magistrate judge. See id.


Kemp brought this action against JHM, alleging violations of the Americans with Disabilities Act, 42 U.S.C. §§ 12112(a), (b)(5)(a) and 12117(a), and a state law claim for intentional infliction of emotional distress. On July 8, 2013, Kemp, who suffers from Type 1 diabetes, began working for JHM as the Corporate Director of Human Resources. (ECF No. 33-18 at 14). On July 10, 2013, Kemp suffered a diabetic episode while traveling on the job for JHM with Daniel Barre (“Barre”), JHM’s Regional Director of Operation. (ECF No. 33-18 at 24). On July 11, 2013, Kemp was fired by Jane Brophy (“Brophy”) and Sid Wall (“Wall”), the vice presidents of JHM, for his “inappropriate” behavior on the previous day.[1](ECF No. 33-11).

Kemp alleges that JHM fired him because of his disability after he experienced a diabetic episode while traveling on-the-job for JHM’s business, and that JHM failed to provide him a reasonable accommodation. Kemp also alleges that JHM “intentionally engaged in conduct which was extreme and outrageous and which was certain to cause emotional distress” to Kemp. (ECF No. 1). JHM moved for summary judgment, asserting Kemp failed to present sufficient evidence to prove his wrongful termination claim, Kemp failed to request an accommodation prior to his termination to prove his failure to accommodate claim, and the South Carolina Workers’ Compensation Act provides the exclusive remedy for any physical or emotional problems from which Kemp allegedly suffered as a result of his termination. (ECF No. 33).

Standard of Review

Summary judgment is appropriate if, after reviewing the entire record in a case, the court is satisfied that no genuine issues of material fact exist and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). An issue of fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Issues of fact are “material” only if establishment of such facts might affect the outcome of the lawsuit under the governing substantive law. Id. All evidence should be viewed in the light most favorable to the nonmoving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).


I. The ADA Claims

The ADA prohibits discrimination by covered entities, including private employers, against qualified individuals with a disability. The Fourth Circuit has held that the causation and burden-shifting standards applicable in Title VII cases as set forth in McDonnell Douglass Corp. v. Green, 411 U.S. 792 (1973), are also applicable in cases brought pursuant to the ADA “where the defendant disavows any reliance on discriminatory reasons for its adverse employment action.” Ennis v. Nat’l Assoc. of Bus. and Educ. Radio, 53 F.3d 55, 58 (4th Cir. 1995).

Under the analysis set forth in McDonnel Douglass, if Kemp establishes a prima facie case, then the burden shifts to JHM to produce a legitimate, non-discriminatory reason for the termination. See Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 513 (4th Cir. 2006). If JHM meets this burden, then “the presumption of discrimination created by the prima facie case disappears from the case’ and [Kemp] must prove the [JHM’s] ‘proffered justification is pretextual.’” Id. at 514 (quoting Mereish v. Walker, 359 F.3d 330, 334 (4th Cir. 2004)).

The Report recommends denying JHM’s motion for summary judgment because a reasonable jury could find that Kemp has adequately demonstrated the facts necessary to establish a prima facie case for the wrongful termination claim. Specifically, the Report finds that a reasonable jury could conclude that: (1) Kemp is substantially limited by his diabetes in major life activities of speaking, communicating, and caring for himself, and is thus disabled under the ADA (ECF No. 54-11); (2) Kemp is a qualified individual for the position in question (ECF No. 54-15); and (3) JHM terminated Kemp’s employment because of his disability (ECF No. 54-15). By establishing a prima facie case, the burden then shifts to JHM to present a legitimate, non-discriminatory reason for termination. JHM admits that the sole reason for terminating Kemp’s employment was his “inappropriate” behavior on July 10, 2013.

The Report further recommended the court to find that Kemp has presented sufficient evidence of pretext to survive summary judgment. Specifically, Kemp presented evidence that (1) the decision-makers knew he had told Barre that he had diabetes and that the symptoms he experienced on July 10th were a result of his low blood sugar (ECF No. 41-13 at 13); (2) the emergency responders indicated that Kemp had suffered a “diabetic episode” at the time of the incident (ECF No. 33-14 at 25); and (3) the decision-makers did not investigate Kemp’s side of the story ...

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