Amy Francisco v. Verizon South, Incorporated

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:09-cv-00737-DWD Copies to all parties and the district court/agency. [998649117].. [10-2432]

Appeal: 10-2432

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Date Filed: 08/08/2011

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-2432

AMY D. FRANCISCO,
Plaintiff - Appellant,
v.
VERIZON SOUTH, INC.,
Defendant - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia at Richmond.
Dennis W. Dohnal, U.S.
Magistrate Judge. (3:09-cv-00737-DWD)

Submitted:

June 23, 2011

Decided:

August 8, 2011

Before GREGORY, DUNCAN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Jay J. Levit, LAW OFFICE OF JAY J. LEVIT, Glen Allen, Virginia,
Tim Schulte, SHELLEY & SCHULTE, PC, Richmond, Virginia, for
Appellant. Raymond A. Cardozo, REED SMITH, LLP, San Francisco,
California, Helenanne Connolly, REED SMITH, LLP, Falls Church
Virginia, Betty S. W. Graumlich, REED SMITH, LLP, Richmond,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Amy

D.

Francisco

appeals

from

the

district

court’s

grant of summary judgment in favor of Verizon South, Inc.

The

district court held that Francisco had failed to establish a
prima facie case of retaliation to support her claim under Title
VII.

We affirm.

I.
When reviewing a grant of summary judgment, as here,
we

construe

the

nonmoving party.
F.3d

253,

258

facts

in

the

light

most

favorable

to

the

Laughlin v. Metro. Wash. Airports Auth., 149
(4th

Cir.

1998).

Francisco,

who

is

African

American, worked for Verizon and its predecessor from 1988 until
her termination on March 6, 2008.

At all times relevant to this

dispute, Debra Nuckles supervised Francisco.

As part of her

workplace duties, Francisco attended a conference on October 24,
2007.

During the conference, Don Albert, a director at Verizon,

gave a presentation touting the company’s accomplishments.

He

asked for a volunteer in the crowd to step on stage and display
cue cards to the audience at appropriate times.

Specifically,

the volunteer was to display cards with words like “cheer” or
“clap” as Albert listed the successes of the company.
had re-used cards from a previous presentation.

Albert

On one side of

each card was a command to cheer, and on the other an image from
2

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The Phantom of the Opera that he had displayed at the previous
engagement.

During the presentation, the volunteer dropped a

card and accidentally displayed the wrong side to the audience.
That side displayed a noose, an image used in The Phantom of the
Opera.
Francisco alleges that she “reasonably perceived this
noose

and

its

hostility.”

display
J.A.

as

41.

a

racist

Although

act
she

of
was

intimidation

and

outraged

the

by

incident, she failed to notify Verizon of her complaint until
roughly three months later.
In

December

2007,

well

before

Francisco

filed

her

complaint, Albert was directed to identify a Verizon employee
for a reduction in force (“RIF”)--i.e., a layoff.

Albert is

responsible

for

the

reductions”

needed

making
to

“initial
compensate

recommendations
for

business in the wireline department.

the

of

company’s

Id. 326.

force

decreased

That same month,

Albert determined that Francisco would be laid off.

As Albert

explained, he first concluded that someone under the supervision
of Nuckles would be terminated, because Nuckles’s team comprised
an excessive number of employees.
termination.

This left five candidates for

Identification of Francisco as the individual to

be laid off was simple, reasoned Albert, because her performance
was rated the lowest out of the group.

3

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Albert maintained ultimate authority for determining
which employee was to be terminated.

He consulted only with

Nuckles, during the first or second week of January 2008, and
solicited her input about his proposed decision to terminate
Francisco’s employment.
RIF

on

February

departments

4,

approved

He formally recommended Francisco for a

2008.
the

The

human

recommendation

resources
on

and

February

legal

28,

Francisco was notified of the decision on March 6.

and

Neither

Albert nor Nuckles--the only employees vested with a role in the
decision-making

process--learned

of

Francisco’s

cue-card

complaint until after their respective roles in the RIF process
had concluded.

Albert learned of the complaint on March 11,

2008, and Nuckles was so apprised on January 24, 2008.
At

the

same

time

that

her

termination

was

being

finalized, Francisco decided to voice her complaint about the
cue-card incident.

She first raised the issue during a January

24, 2008 meeting with Louise Shutler and Faye Harrison, members
of

the

Verizon

investigate

Security

Francisco’s

the preceding week.
the

cue-card

team.

The

three-day

meeting

unexcused

was

arranged

absence

from

to

work

Francisco took that opportunity to explain

incident

to

Shutler

and

Harrison,

but

Shutler

informed her that Verizon Security had no jurisdiction over the
matter.

Instead, Shutler promised to forward the complaint to

the company’s ethics office.
4

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Hearing no further word about her complaint, Francisco
on February 7 contacted Shutler.

Shutler acknowledged that she

had forgotten to forward the complaint and had not spoken with a
single person about the issue.

She promised to take action

immediately and ultimately transmitted the complaint to Kenna
Ashley, who talked with Francisco on February 13.

No further

action was taken on the complaint, and Francisco was notified of
her termination on March 6.
After

learning

of

her

termination,

Francisco

filed

suit, alleging unlawful retaliation in violation of Title VII.
In her complaint, Francisco asserted that she was “terminated
from
about

employment
incidents

with

intimidation.”

at

Verizon
work

of

in
race

retaliation

for

discrimination

complaining
and

racial

J.A. 37.

After extensive discovery, Verizon moved for summary
judgment.

The district court granted the motion, dismissing

Francisco’s retaliation claim.

From this order Francisco now

appeals.

II.
A party is entitled to summary judgment if it “shows
that there is no genuine dispute as to any material fact” and
that it “is entitled to judgment as a matter of law.”
Civ. P. 56(a).

Fed. R.

Summary judgment is appropriate “against a party
5

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who

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fails

to

Date Filed: 08/08/2011

make

a

showing

Page: 6 of 9

sufficient

to

establish

the

existence of an element essential to that party’s case, and on
which

that

party

will

bear

the

burden

of

proof

at

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

trial.”

To resist

summary judgment, a nonmoving party “must do more than simply
show that there is some metaphysical doubt as to the material
facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S.

574,

586

(1986),

and

the

party

“cannot

defeat

summary

judgment with merely a scintilla of evidence,” Am. Arms Int’l v.
Herbert, 563 F.3d 78, 82 (4th Cir. 2009).
We

review

de

novo

a

district

court’s

granting

of

summary judgment, viewing the facts in the light most favorable
to the nonmoving party.

Laughlin, 149 F.3d at 258.

III.
Title VII’s retaliation provision forbids “an employer to
discriminate against any of his employees . . . because [the
employee] has opposed any practice made an unlawful employment
practice.”

42 U.S.C. § 2000e-3(a).

three-step

framework

claims.

when

We have endorsed a familiar

assessing

Laughlin, 149 F.3d at 258.

Title

VII

retaliation

First, the plaintiff must

show, by a preponderance of the evidence, a prima facie case of
retaliation.
rebut

the

Id.

The burden then shifts to the defendant “to

presumption

of

retaliation
6

by

articulating

a

non-

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retaliatory

reason

Date Filed: 08/08/2011

for

its

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action.”

Id.

If

the

defendant

successfully rebuts, the presumption of retaliation “drops from
the case” and the plaintiff bears the ultimate burden.

Id.

(internal quotation marks omitted).
To

establish

the

necessary

prima

facie

case

of

retaliation, a plaintiff must demonstrate “(1) that she engaged
in protected activity, (2) that an adverse employment action was
taken against her, and (3) that there was a causal link between
the protected activity and the adverse employment action.”

Id.

Because we conclude that Francisco has failed to satisfy the
causation prong, we need not assess the remaining two elements.
To demonstrate the requisite “causal link between the
protected activity and the adverse employment action,” id., a
plaintiff

must

generally

show

at

the

very

least

that

the

termination occurred after the decision-making authority became
aware of the employee’s grievance, see Williams v. Cerberonics,
Inc., 871 F.2d 452, 457 (4th Cir. 1989).

The undisputed facts

show that Francisco fails to meet this most basic element of the
causation prong.
Only

two

individuals

at

Verizon

exercised

direct

control over Francisco’s termination--Albert and Nuckles.

The

undisputed facts show that Albert did not learn of Francisco’s
complaint until March 11, 2008, five days after Francisco was
notified that she would be laid off.
7

Nuckles completed her

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involvement in Francisco’s termination by giving input to Albert
in the first or second week of January 2008.

This was at least

a week before she learned of Francisco’s complaint on January
24. *
a

Although the human resources and legal departments also had

role--albeit

a

most

formal

role--in

approving

Francisco’s

termination, Francisco does not allege that any individuals in
those departments knew of her complaint.
Thus, short of innuendo and conclusory allegations of
a vast conspiracy, Francisco is unable to present more than a
“scintilla of evidence” that any of the decision makers knew of
her

complaint

inexorably

prior

fails,

to

and

her

official

summary

termination.

judgment

is

Her

appropriate.

claim
We

therefore affirm the judgment of the district court.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials

*

Verizon disputes this date, contending that Nuckles did not
learn of Francisco’s complaint until November 2008. In support
of the earlier date, Francisco points to Shutler’s deposition
wherein she testified that Nuckles talked to her about
Francisco’s complaint on January 24, 2008.
Shutler, however,
almost immediately corrected herself, testifying that she meant
to identify Francisco as the person who informed her about the
complaint.
We think it obvious from the context of Shutler’s
testimony and her clarifying remarks that Shutler misspoke, but
we nevertheless follow the district court’s lead in assuming
that Nuckles learned of the complaint on January 24.

8

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before

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the

court

Date Filed: 08/08/2011

and

argument

would

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not

aid

the

decisional

process.

AFFIRMED

9