Labor & Employment Law Daily Wrap Up, DISCRIMINATION—E.D.N.C.: New homes sales consultant advances race, disability bias claims, (Aug 21, 2026)

By Steven D. Cole, J.D.

Factual disputes precluded summary judgment on the sales consultant’s discrimination claims, however she was not an eligible employee under the FMLA, and her status as an outside salesperson exempted her from the FLSA’s reach.

A federal district court in North Carolina made a number of rulings on the employer’s motion for summary judgment in this case, finding that the factual record was as yet undeveloped so as to resolve most of these disputes. This was the case with the employee’s claims for discriminatory compensation based on race under Title VII and 42 U.S.C. § 1981, and her ADA failure to accommodate and retaliation claims. Her interference and retaliation claims asserted under the FMLA could not proceed because the employee was not an eligible employee, and her claim for a violation of the FLSA required dismissal because the FLSA exempts outside salespeople (Lemrabott v. McKee Homes, LLC, No. 5:24-CV-536 (E.D.N.C. Aug. 19, 2026)).

The employee in this case, a Black woman, was hired by McKee Homes in 2020 as a New Home Advisor. She was promoted to the position of New Homes Sales Consultant (NHSC) after six months. As an NHSC, the employee was responsible for advertising and showing homes in the company’s four Fayetteville communities. She was subject to monthly sales goals, and was paid a commission of 1.25 percent (which was increased to 1.5 percent on April 2022) for each successful closing.

Leave request. At some point in 2022, the employee notified her supervisor that she was experiencing “pain.” She was subsequently diagnosed with uterine fibroids, which required surgery followed by a recovery period of at least three weeks. She contacted McKee Homes’ Director of Human Resources on October 25 to request “short term disability or FMLA” leave, and subsequently provided a hospital authorization letter showing November 29 to December 6, 2022, as possible surgery dates. The employee stated in her complaint that her supervisor became aware that her pain occurred during her monthly menstrual cycle. McKee Homes disputed this allegation.

Performance evaluation. On October 26, one day after the employee requested leave, McKee Homes scheduled an evaluation of her performance by contracting with Impact Marketing, which provides a “secret shopper” program to covertly evaluate employees. McKee Homes had used this service in the past, but not since September 2020. The appointment took place on November 8, with Impact Marketing’s employees posing as prospective homebuyers. The agency graded the employee with a score of 36 out of 100, prompting a McKee Homes executive to decide to terminate the employee, effective November 28, 2022, the day before her scheduled surgery.

Discriminatory compensation. Subsequently, the employee filed this lawsuit. The court first considered her claims asserting discriminatory compensation under Title VII and Section 1981, alleging that McKee Homes paid her at a lower rate than similarly situated white employees because of her race. Her complaint stated that homes in the Fayetteville area were generally priced lower than those in Raleigh and Wilmington, resulting in lower commissions. The parties disagreed as to whether the employee was assigned to the Fayetteville district because of her race, or because she lived in this area. This dispute of material fact precluded an entry of summary judgment on these claims.

ADA claims. Next, the employee contended that McKee Homes violated her rights under the ADA by failing to provide her with an accommodation and by retaliating against her by firing her after she requested leave for her planned surgery. McKee Homes did not question whether the employee was an individual with a disability under the ADA, but the company did challenge whether, and to what extent, the employee informed her supervisor and HR about the limitations that she was experiencing as a result of her pain. This dispute rendered summary judgment inapt.

As to the employee’s allegation of retaliation, the timing of her notice of requested leave and her employer’s decision to schedule a “secret shopper” session, and well as the proximity of her termination and scheduled surgery, created a genuine dispute of material fact which rendered summary judgment inappropriate.

FMLA interference and retaliation. The employee’s claims for interference and retaliation in violation of the FMLA could not proceed because the employee did not qualify for FMLA protection. The FMLA only covers employees who are employed by “an employer who is employed at a worksite at which such employer employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50.” 29 U.S.C. § 2611(2)(B)(ii). McKee Homes alleged that it never employed 50 or more employees within a 75-mile radius, and the employee did not contradict this statement.

Unpaid commissions. With regard to the employee’s allegation that she was owed commissions for sales while employed by McKee Homes, the court determined that this claim could not be brought under the FLSA because her position as an NHSC fell under the FLSA’s exemption for “outside salesm[en].”

Other rulings. The employee did not object to summary judgment in her former employer’s favor as to her state-law claim asserting wrongful termination in violation of public policy, based on her protected status as a handicapped employee. Nor did the employee oppose the motion for summary judgment in favor of McKee Homes Realty, LLC, on all claims because the employee never worked for that company.

The case is No. 5:24-CV-536.

Attorneys: Kirton M. Madison (Madison Law) for Victoria Lemrabott. Kyle Richard Still (Wyrick Robbins Yates & Ponton) for McKee Homes, LLC.

Companies: McKee Homes, LLC

Cases: Discrimination DisabilityDiscrimination RaceDiscrimination CoverageLiability Discharge EmployeeLeave EmployeeStatus Retaliation NorthCarolinaNews