Ngrime v. Mosaic

Filing 51

MEMORANDUM OPINION that defendant's motion for summary judgment will be granted and the plaintiff's complaint will be dismissed. A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAEL NGRIME,

)
)
Plaintiff,
)
)
v.
)
)
MOSAIC,
)
)
Defendant.
)
______________________________)

8:13CV194

MEMORANDUM OPINION

This matter is before the Court on the motion (Filing
No. 41) of defendant Mosaic for summary judgment against
plaintiff Michael Ngrime (“Ngrime”) filed pursuant to Federal
Rule of Civil Procedure 56.

Upon reviewing the motion, briefs,

evidence, and relevant law, the Court finds as follows.
I.

BACKGROUND
Mosaic is a non-profit, faith-based entity which serves

people with intellectual disabilities (Filing No. 42, at 2, ¶ 1).
Ngrime is a black, West African male from the nation of Cameroon
(Id. at ¶ 2).

Mosaic employed Ngrime as a Direct Support

Associate (“DSA”), a position responsible for training and
assisting Mosaic’s clients in daily living activities (Id. at 3,
¶ 5).

Ngrime worked for Mosaic from November 28, 2011, until May

17, 2012 (Id. at 2, ¶ 2; Id. at 9, ¶ 36).
Mosaic states the basis of Ngrime’s termination was an
allegation from a coworker, Jasmine Branch (“Branch”), made May

9, 2012, stating Ngrime physically abused one of Mosaic’s
clients, J.J. (“JJ”) (Id. at 5-6, at ¶ 19).

Mosaic interviewed

Ngrime, Branch, JJ, and others during its investigation of the
allegations on May 11, 2012 (Id. at 6-7, ¶ 25).

Branch reported

that, on the day in question, Ngrime and JJ fought repeatedly,
but ultimately, Ngrime open-handed hit JJ on the right side of
his back, below the shoulder blade (Id. at 7, ¶ 28).

Branch also

reported that Ngrime later mocked JJ’s pain (Id. at 7-8, ¶ 29).
Ngrime denied hitting JJ but explained that he defensively held
JJ’s hands behind his back after JJ attacked Ngrime (Id. at 8,
¶ 30).

JJ reported that Ngrime and JJ fought, that he was hurt,

and that Ngrime was the one who hurt him (Id. at ¶ 30).
Investigator Nicole Halpine (“Halpine”) observed a reddened
scabbed area on JJ’s right shoulder (Id. at ¶ 32).

Halpine

issued the following report to Mosaic on May 16, 2012:
I can substantiate that [Ngrime]
and [JJ] were involved in physical
altercation two times on the
evening of 05/08/12. These
altercations took place because of
[Ngrime] taking soap out of [JJ's]
room. When the first event
happened, [JJ] hit [Ngrime] and
Jasmine removed roommate T.S. so he
would not be scared. Co-worker
Savanna came over when she heard
the yelling and helped de-escalate
the situation. The second
altercation took place when [JJ]
was again asking for soap and
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[Ngrime] entered his room to look
for the soap. [JJ] told him to
leave and hit [Ngrime] again. This
time their fingers locked up and
[JJ] released one hand and
continued to hit [Ngrime]. [JJ]
then went to the kitchen to get
soap for his shower and when Ngrime
tried to redirect him, [JJ] hit him
again and [Ngrime] hit [JJ] on the
right side of his back below the
shoulder blade. Jasmine did not
say anything to [Ngrime] and did
not intervene, she gave [JJ] his
rationed soap and [JJ] went to take
a shower. At this time Jasmine
noticed that [JJ's] back shoulder
area was red. At the end of her
shift, [JJ's] back was still red,
she did call Mary Range, DSA when
she was off work to discuss what to
do and was told to report it,
however Jasmine did not report the
incident to anyone.
(Id. at 8-9, ¶ 35 (citing Filing No. 42-3 (“Ex.49"), at 223-24)).
Mosaic terminated Ngrime May 17, 2012 (Id. at 9, ¶ 36).

May 30,

2012, Ngrime appealed his termination and claimed for the first
time that his discharge was based on his race, national origin,
or color (Id. at 9-10, ¶ 39).
On August 13, 2012, after an appeal upheld his
termination, Ngrime filed his complaint against Mosaic with the
Nebraska Equal Opportunity Commission (“NEOC”), which was
cross-filed with the Equal Employment Opportunity Commission
("EEOC") (Id. at 10, ¶ 41).

Ngrime alleged race, color, and

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national origin discrimination under Title VII of the 1964 Civil
Rights Act and the Nebraska Equal Employment Practice Act
(“FEPA”) (Id.).

On January 30, 2013, the NEOC issued a “no

reasonable cause” finding and a “right to sue” notice (Id. at
¶ 42).

The EEOC adopted the NEOC’s findings and sent a “right to

sue” on March 26, 2013 (Filing No. 42, at 10, ¶ 43; Filing No. 8,
at 3).

Ngrime filed his lawsuit in federal court July 1, 2013,

and amended his complaint November 21, 2013 (Id. at 42, ¶ 44).
Ngrime alleges disparate treatment and harassment at Mosaic based
upon his race, color, and national origin (Id.).
II.

STANDARD OF REVIEW
A motion for summary judgment shall be granted by the

Court “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. Civ. P. 56(a).

A “material” fact is one

that “might affect the outcome of the suit under the governing
law,” and a genuine issue of material fact exists when “the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.”
U.S. 242, 248 (1986).

Anderson v. Liberty Lobby, Inc., 477

On a motion for summary judgment, facts

must be viewed in the light most favorable to the nonmoving party
only if there is a genuine dispute as to those facts.

Wood v.

SatCom Marketing, LLC, 705 F.3d 823, 828 (8th Cir. 2013).
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The moving party bears the burden to establish that no
genuine issue of material fact exists.

Fed. R. Civ. P. 56(a);

Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

If the

moving party does not meet its initial burden, summary judgment
must be denied even if no affidavits or other evidence have been
submitted in opposition to the motion.

See id. at 159-60.

After

the moving party has met its burden, “the non-moving party may
not rest on the allegations of his pleadings, but must set forth
specific facts, by affidavit or other evidence, showing that a
genuine issue of material fact exists.”

Singletary v. Missouri

Dept. of Corrections, 423 F.3d 886, 890 (8th Cir. 2005).
III. DISCUSSION
A.

TIME BAR
Section 2000e-5 of Title 42 limits to 90 days the time

period in which a plaintiff may timely file a motion in federal
court after a receipt of an EEOC “right to sue” letter.

Mosaic

claims Ngrime’s motion was untimely and moves for summary
judgment.

The EEOC letter was sent on March 26, 2013.

No. 42, at 10, ¶ 43; Filing No. 8, at 3.
lawsuit Monday, July 1, 2013.

Ngrime filed his

Id. at ¶ 44.

of 97 days, not counting March 26, 2013.

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Filing

That is a difference

In Barnes v. Riverside Seat Co., the Eighth Circuit
intimated the adoption of the Sixth Circuit’s analysis in Cook v.
Providence Hospital regarding the counting of time for Section
2000e-5.

The Sixth Circuit made the following statement:
At common law, there is a
presumption that a properly
addressed, stamped, and mailed
letter is received by the
addressee. See, e.g., Simpson v.
Jefferson Standard Life Ins. Co.,
465 F.2d 1320, 1323 (6th Cir. 1972)
(citing Wigmore on Evidence § 95,
at 524 (3d ed.)). As we recently
intimated in Hunter v. Stephenson
Roofing, Inc., 790 F.2d 472, 475
(6th Cir. 1986), there is a
presumption that mail is received
by the addressee and the ninety day
time limit begins to run five days
after the EEOC Notice of Right to
Sue is mailed.

Cook v. Providence Hospital, 820 F.3d 176, at 179 n.3 (6th Cir.
1987).

The Eighth Circuit cited Cook in Barnes, saying “[w]e

find no abuse of discretion in the denial of Barnes's postjudgment motion, in which he asserted for the first time that he
never received the right-to-sue letter . . . [Cook] (presuming
receipt of EEOC right-to-sue letter within 5 days of mailing
absent convincing denial of receipt).”

Barnes v. Riverside Seat

Co., No. 2-1623, 2002 WL 31027585, at *1 (8th Cir. Sept. 12,
2002).

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Presuming, for Ngrime’s sake, that the Eighth Circuit
did adopt a five-day extension, the analysis changes as follows.
The EEOC mailed the “right to sue” letter on March 26, 2013.
Filing No. 42, at 10, ¶ 43; Filing No. 8, at 3.

The common-law

presumption tolls the beginning of the ninety-day period for five
days; therefore, it is presumed that Ngrime received the EEOC
letter Monday, April 1, 2013.

Barnes, No. 2-1623, 2002 WL

31027585, at *1 (citing Cook, 820 F.3d at 179 n.3).

Ninety days

after Monday, April 1, 2013, is Sunday, June 30, 2013.
No. 42, at 16.

Filing

What the defendant failed to recognize was the

application of Federal Rule of Civil Procedure 6(a)(1)(C), which
states “[w]hen the period is stated in days or a longer unit of
time. . . (C) include the last day of the period, but if the last
day is a Saturday, Sunday, or legal holiday, the period continues
to run until the end of the next day that is not a Saturday,
Sunday, or legal holiday.”

Fed. R. Civ. P. 6(a)(1)(C).

Because

the final day was June 30, 2013, a Sunday, the Federal Rules
require the Court to continue the period to the following nonholiday weekday.

That day was Monday, July 1, 2013, the day

Ngrime filed his complaint.

Therefore, the Court finds that the

complaint was timely filed.

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B.

DISCRIMINATION
Ngrime does not offer any direct evidence of

discriminatory intent to support his claim, so the Court must
analyze the facts of his claim under the familiar burden-shifting
framework set out by the McDonnell Douglas line of cases.

See

St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506–08 (1993).

As

a matter of law, Ngrime is required to produce such evidence to
prove the following prima facie elements:

“(1) he is a member of

a protected class, (2) he met his employer's legitimate
expectations, (3) he suffered an adverse employment action, and
(4) the circumstances give rise to an inference of discrimination
(for example, similarly situated employees outside the protected
class were treated differently)."

Gibson v. Am. Greetings Corp.,

670 F.3d 844, 853-54 (8th Cir. 2012)).

If Ngrime can meet these

elements, Mosaic may still prove it has a “legitimate, nondiscriminatory reason” to discharge Ngrime.

Id. at 856.

Disposing of any disputed material fact in favor of
Ngrime, the Court makes the following findings.
member of his asserted protected classes.

Ngrime is a

Whether Ngrime met

Mosaic’s legitimate expectations depends upon whether Ngrime
assaulted JJ.

Ngrime has contested Mosaic’s statement of facts,

he has maintained his innocence of this allegation.

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Therefore,

this question is one of fact to be resolved by jury.

Ngrime

experienced adverse employment action.
The Court finds that Ngrime cannot prove the final
element, circumstances giving rise to an inference of
discrimination.

To prove this element, Ngrime must find

disparate behavior in Mosaic’s actions between Ngrime and
similarly situated, non-protected-class employees.

First, Ngrime

claimed that two other white employees, Kraft and Kenniston, did
the same thing as Ngrime but were not discharged.
admitted these two men did not hit a client.

Later, Ngrime

Ngrime finally

argues in his brief that no similarly situated employees not in
his class ever existed at Mosaic.
However, Mosaic has presented a list of persons
discharged for attacking clients in the 2011 and 2012.
No. 42-3, at 232-37, Filing No. 42, at 11, ¶ 46.
individuals, five were white and one was black.
at 11, ¶ 46, Filing No. 42-3, at 114-115.

Filing

Of these six
Filing No. 42,

Three of the white

individuals were Direct Support Associates, which was Ngrime’s
exact job title.

Filing No. 50, at 5.

The evidence adduced at

summary judgment gives no inference of discrimination.
Therefore, the defendant’s motion for summary judgment will be
granted.

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Assuming Ngrime could prove the elements, Mosaic has
presented a legitimate, non-discriminatory reason to terminate
Ngrime.

There is no doubt, and it is uncontroverted between the

parties, that employee violence against clients is a legitimate
reason to terminate employment.

Billups v. Methodist Hosp. of

Chicago, 922 F.2d 1300, 1303 (7th Cir. 1991) (“There is little
doubt that the defendant's articulated reason is legitimate.
Physically abusing [a] . . . patient is serious misconduct.”);
Filing No. 42, at 19; Filing No. 42-3, at 69-70 (Ngrime’s
Deposition in which he states that striking a resident is a
legitimate nondiscriminatory reason for termination).
Finally, Ngrime has adduced no evidence of pretext.
Though Ngrime vigorously defends his innocence against the
allegations of JJ and Branch, the Eighth Circuit has clarified
the distinction between conduct and good-faith belief of conduct:
The critical inquiry in
discrimination cases like this one
is not whether the employee
actually engaged in the conduct for
which he was terminated, but
whether the employer in good faith
believed that the employee was
guilty of the conduct justifying
discharge. Hitt v. Harsco Corp.,
356 F.3d 920, 924 (8th Cir. 2004);
Scroggins v. Univ. of Minn., 221
F.3d 1042, 1045 (8th Cir. 2000). A
plaintiff seeking to survive an
employer's motion for summary
judgment must therefore show a
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genuine issue for trial about
whether the employer acted based on
an intent to discriminate rather
than on a good-faith belief that
the employee committed misconduct
justifying termination. Johnson,
424 F.3d at 811. [The plaintiff]
has not presented sufficient
evidence to create an issue for
trial on the question whether the
final decision maker . . . and the
principal recommender . . .
genuinely believed that he had
engaged in such conduct.
* * *
The record in support of the
employer's conclusion is not so
sparse, or the employer's
conclusion so implausible, that
[the plaintiff's] challenge to the
merits of the decision can create a
genuine issue about whether the
employer's motivation was
impermissible. . . . [The
plaintiff] points to nothing in the
record suggesting that [the
employer] did not honestly believe
that [the plaintiff] [did that
which he was accused of] on
multiple occasions.
McCullough v. Univ. of Arkansas, 559 F.3d 855, 861-62 (8th Cir.
2009) (affirming summary judgment on discrimination claim for the
employer).

Ngrime vigorously denies ever attacking JJ and has

fallen into a classic issue in employment law cases.

Ngrime is

under the false impression that Mosaic bears a burden to prove
Ngrime physically abused JJ.

See Filing No. 47, at 30

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(“Defendant does not have even a scintilla of evidence that
Plaintiff physically abused a resident.”); Id. at 35.

Ngrime is

not on trial for his alleged violence against Mosaic’s client,
nor is his burden simply to argue and prove whether the violence
occurred, he must adduce evidence as to whether Mosaic acted in
good faith in its adverse employment actions.

Ngrime has

produced nothing to create a question in the mind of a jury that
Mosaic did not act in good faith in its investigation and its
conclusion.
Finally, the Court has considered Ngrime’s hostile work
environment claim and finds it should be dismissed because Ngrime
failed to notify Mosaic of his co-workers’ actions.

See Joens v.

John Morrell & Co., 243 F. Supp. 2d 920, 932-33 (N.D. Iowa 2003)
(“[T]he Eighth Circuit Court of Appeals has reiterated that in
order to establish employer liability for harassment by coworkers, a plaintiff must establish that the employer ‘knew or
should have known of the conduct and failed to take proper
remedial action.’”).
IV.

CONCLUSION
For the foregoing reasons, defendant’s motion will be

granted and the plaintiff’s complaint will be dismissed.

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A

separate order will be entered in accordance with this memorandum
opinion.
DATED this 7th day of October, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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