ADEFILA v. SELECT SPECIALTY HOSPITAL et al

Filing 42

MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 06/25/2014 as set out herein. For the reasons stated, Adefila's employment claims under Title VII and the ADA fail. ORDERED that Select's motion for summary judgment (Doc. 30 ) is GRANTED, its motion to strike (Doc. 40 ) is DENIED AS MOOT, and this case is DISMISSED WITH PREJUDICE.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CHRISTIANAH O. ADEFILA,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
SELECT SPECIALITY HOSPITAL,
Defendant.

1:13CV68

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
Before the court in this employment action is a motion for
summary judgment filed by Defendant Select Specialty Hospital
(“Select”)1

pursuant

(Doc. 30.)

Plaintiff Christianah O. Adefila, proceeding pro se,

alleges
origin

that
and

Select

to

Federal

terminated

disability,

Rule

her

subjected

of

Civil

because
her

to

of
a

Procedure

her

56.

national

hostile

work

environment, and retaliated against her for filing a charge of
discrimination

with

the

United

States

Equal

Employment

Opportunity Commission (“EEOC”), in violation of Title VII of
the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et
seq., and the Americans With Disabilities Act of 1990 (“ADA”),
42 U.S.C. § 12101 et seq.

For the reasons set forth below,

Select’s motion will be granted and the case will be dismissed.

1

Select notes that its legal name is Select Specialty Hospital –
Greensboro, Inc. (Doc. 17 at 1.)

I.

BACKGROUND
Select is a long-term acute care hospital that provides

treatment to patients with chronic diseases or complex medical
conditions.
Select’s

During

Chief

the

Nursing

relevant

Officer.

Decl.”), Doc. 31-1 ¶¶ 3-4.)

period,
(Clark

Robin

Clark

Declaration

was

(“Clark

Clark hired Adefila as a full-time

registered nurse (“RN”) on May 16, 2012.

(Id. ¶ 7; Adefila

Deposition

61.)

(“Adefila

Dep.”),

Doc.

31-5

at

As

an

RN,

Adefila’s job duties included evaluating patients and assuring
the implementation of each patient’s “individual nursing plan.”
(Clark Decl. ¶ 8.)
“Model

Nursing

Adefila was required to conform to Select’s
Practices

and

Procedures”

(the

“Model

Practices”), which include policies relating to administering
medication and other typical job duties.
According

to

several

Select

(Id. ¶¶ 9-10.)

employees,

during

her

short

term of employment2 Adefila performed her job at a substandard
level and was resistant to following the Model Practices.

For

example, Clark stated that Adefila needed constant reminders to
perform basic and crucial patient-care tasks and she failed to
prioritize obligations such as administering medicine over her
personal break time.

(Id. ¶¶ 16-17, 21.)

2

Abigail Jackson,

As a condition of employment, Adefila was required to complete a 90day introductory period during which she could be terminated at any
time for unsatisfactory performance.
(Id. ¶ 11.)
She acknowledges
she was within this period when she was terminated. (Adefila Dep. at
61.)

2

Adefila’s direct supervisor, stated that within the first 60
days of Adefila’s employment, she had to counsel Adefila “on at
least

three

occasions

regarding

her

nursing

practices.”

(Jackson Declaration (“Jackson Decl.”), Doc. 31-4 ¶¶ 5, 7.)

On

one of these occasions, Jackson admonished Adefila after she had
administered

medicine

without an IV pump.

to

a

patient

(Id. ¶ 8.)

“free-flow”

–

that

is,

This practice is extremely

dangerous to patients and a violation of the Model Practices.
(Id. ¶ 9.)

And, Elaine Sorenson, Select’s Director of Quality

Management,

concluded

skills,”

“was

unable

that
to

Adefila

present

“lacked

her

critical

reports

in

an

thinking
orderly

fashion and exhibited a poor train of thought,” and “was often
unable

to

answer

basic

questions

regarding

the

status

or

condition of her patients.”

(Sorenson Declaration (“Sorenson

Decl.”), Doc 31-3 ¶¶ 3, 7-8.)

Adefila has responded to some of

these claims in her briefing but has presented no admissible
evidence to refute them.
Select terminated Adefila on June 25, 2012, “because her
continued disregard of Select’s Model Practices posed a direct
threat to the safety of [Select’s] patients.”
¶ 32; Adefila Dep. at 61.)

(Clark Decl.

Adefila testified that Clark told

her she was being terminated because she left medications in a
patient’s room unattended.

(Adefila Dep. at 62.)

Adefila

Select’s

wrote

a

letter

to

3

Chief

On July 1,

Executive

Officer,

Deana

Knight,

requesting

reconsideration

of

the

termination

decision.

(Doc. 34 at 9; Knight Declaration (“Knight Decl.”),

Doc.

¶¶

31-2

performance,

3,

5.)

In

attributed

the

her

letter,

issues

at

Adefila
work

to

defended
her

her

strained

relationship with Jackson, and claimed that Clark never raised
any

performance

issues

with

her.

(Doc.

34

at

9.)

Knight

investigated Adefila’s claims and, finding them without merit,
adhered to the decision.

(Knight Decl. ¶¶ 9-15; Adefila Dep. at

64.)
Subsequently, Adefila began working as an Acute Dialysis
Nurse at DaVita, Inc. (“DaVita”), on October 10, 2012.
at 12; Adefila Dep. at 43.)

(Doc. 34

DaVita provides dialysis service to

several facilities, including to Select’s patients at Select’s
hospital
Adefila

facility.
was

(“Alamance”).

(Clark

assigned

to

(Adefila

Decl.

¶

Alamance

Dep.

at

37.)

While

Regional

44.)

On

at

DaVita,

Medical
October

Center
24,

reported to Select as part of her duties with DaVita.

she

(Id.)

She never informed DaVita that she had been terminated by Select
earlier in the year.

(Id.)

On the same day, Clark discovered

Adefila on the hospital floor at Select.

(Clark Decl. ¶ 38.)

Clark contacted a representative of DaVita and informed her that
Adefila had been terminated by Select and requested that she be
removed from Select’s hospital.
home.

(Adefila Dep. at 49-50.)
4

(Id.)

Adefila was then sent

That
DaVita

day,

Adefila’s

“couldn’t

Adefila,

her

termination.

have

supervisor

[her]

supervisor

anymore.”

needed

(Id. at 50.)

at

three

DaVita

told

(Id.)
days

her

that

According

to

finalize

to
her

However, she continued to report to

work until November 5, when her supervisor told her she was not
qualified to work at Alamance.

(Id. at 51-52.)

Even after

that, Adefila was given an opportunity to find another placement
within DaVita (id. at 53), but she chose not to look for an
alternative placement because her supervisor did not recommend
her (id. at 54).
Adefila filed a charge of discrimination with the EEOC on
August

16,

2012.

She

alleged

discrimination

national origin, race, and disability.

based

on

her

(Doc. 8-1 at 4-5.)

The

EEOC mailed a right-to-sue letter for this charge on November 2,
2012.

(Id. at 1.)

Adefila filed a second charge on December

17, 2012, alleging retaliation.

(Id. at 2.)

this suit on January 28, 2013.

(Doc. 2.)

She then initiated
The EEOC sent a

right-to-sue letter for the retaliation charge January 31, 2013,
(Doc. 8-1 at 3), and Adefila amended her complaint on February
12 (Doc. 8).

The court dismissed Jackson as a defendant on June

25, 2013, on the ground that Adefila failed to perfect service
of process within 120 days of filing the complaint.

5

(Doc. 21.)

Select now moves for summary judgment on all claims.
30.)

(Doc.

Adefila responded (Doc. 34), and Select replied (Doc. 36).3

The motion is ripe for consideration.
II.

ANALYSIS
A.

Standard of Review

“The court shall grant summary judgment 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.”
Civ.

P.

56(a).

The

moving

party

bears

the

Fed. R.

burden

of

establishing that no genuine dispute of material fact remains.
When the non-moving party has the burden of proof, the moving
party is entitled to summary judgment if it shows the absence of
material disputed facts.
317, 322-23, 325 (1986).

Celotex Corp. v. Catrett, 477 U.S.
“As the Supreme Court has made clear,

‘courts should [not] treat discrimination differently from other
ultimate questions of fact.’”

Merritt v. Old Dominion Freight

Line, Inc., 601 F.3d 289, 295 (4th Cir. 2010) (quoting U.S.
3

After Select filed its reply brief and its motion was submitted to
the court, Adefila filed two more documents, titled “Plaintiff’s
Response to Defendant’s Reply Brief in Further Support of Motion for
Summary Judgement [sic]” (Doc. 38), and “Plaintiff’s Additional
Response to Defendant’s Reply Brief in Further Support of Motion for
Summary Judgement [sic]” (Doc. 39).
These filings constitute
impermissible surreplies. The court’s Local Rules “only allow for the
filing of a motion, a response to a motion, and a reply.” DiPaulo v.
Potter, 733 F. Supp. 2d 666, 670 (M.D.N.C. 2010) (citing Local Rules
7.3 & 56.1).
Unless new arguments are asserted in the opposing
party’s reply brief, a surreply is unnecessary.
Id.
Select merely
replied to Adefila’s response brief; it did not advance any new
arguments.
Thus, the court declines to consider Adefila’s two
filings, rendering Select’s motion to strike (Doc. 40) moot.

6

Postal

Serv.

(1983)).

Bd.

of

Governors

v.

Aikens,

460

U.S.

711,

716

In assessing whether a genuine dispute of material

fact sufficient to preclude summary judgment exists, the court
regards

the

non-movant’s

statements

as

true

and

accepts

all

admissible evidence and draws all inferences in the non-movant’s
favor.

Anderson

(1986).
“mere

existence

not

Liberty

Lobby,

Inc.,

477

U.S.

242,

255

But a non-moving party must establish more than the

position.
is

v.

of

a

Id. at 252.
significantly

granted.”

Id.

at

scintilla

of

evidence”

to

support

his

If the evidence is “merely colorable, or
probative,

249-50

summary

(citations

judgment

omitted).

may

be

Ultimately,

summary judgment is appropriate where the non-movant fails to
offer “evidence on which the jury could reasonably find for the
plaintiff.”
B.

Id. at 252.

Title VII and ADA Discriminatory Discharge

Title VII plaintiffs may establish discrimination either
through the introduction of direct evidence or by utilizing the
burden-shifting framework set forth in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 (1973).
Sys.

Servs.,

134

F.3d

1222,

1228

See Karpel v. Inova Health
(4th

Cir.

1998).

Because

Adefila has proffered no direct evidence of discrimination in
this case,4 she must proceed under McDonnell Douglas.

4

In order

Adefila has submitted an exhibit in which she claims that Jackson
told her and a co-worker that Nigerians are cannibals.
(Doc. 34 at

7

to establish a prima facie case of discriminatory discharge, she
must show “(1) that she is a member of a protected class; (2)
that she was qualified for her job and her job performance was
satisfactory;

(3)

that,

in

spite

of

her

qualifications

and

performance, she was fired; and (4) that the position remained
open

to

similarly

qualified

applicants

after

her

dismissal.”

Id. (quoting Williams v. Cerberonics, Inc., 871 F.2d 452, 455
(4th Cir. 1989)).
ADA

claims

framework.

are

also

evaluated

under

the

burden-shifting

See Ennis v. Nat’l Ass’n of Bus. & Educ. Radio,

Inc., 53 F.3d 55, 58 (4th Cir. 1995).

To establish a prima

facie wrongful discharge claim under the ADA, Adefila must show
that (1) she “was a qualified individual with a disability,” (2)
she

was

terminated,

(3)

she

“was

fulfilling

[Select’s]

legitimate expectations at the time of discharge,” and (4) “the
circumstances of [her] discharge raise a reasonable inference of
unlawful discrimination.”

Reynolds v. Am. Nat’l Red Cross, 701

15.)
Even assuming that this statement is admissible, it fails to
establish discriminatory animus because the record reflects that Clark
hired and fired Adefila, and there is no evidence that Jackson
proximately caused her termination.
See Staub v. Proctor Hosp., 131
S. Ct. 1186, 1191, 1194 (2011) (holding that an employer is liable
under the Uniformed Services Employment and Reemployment Rights Act,
38 U.S.C. § 4311, - a statute “very similar to Title VII” - when a
biased supervisor’s action is intended to cause, and does proximately
cause, an employee’s termination); see also Hill v. Lockheed Martin
Logistics Mgmt., Inc., 354 F.3d 277, 288-89 (4th Cir. 2004)
(discriminating supervisor must be “principally responsible” for
adverse employment action) (citing Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 151-52 (2000)).

8

F.3d

143,

150

(4th

Cir.

2012)

(quoting

Rohan

v.

Networks

Presentations LLC, 375 F.3d 266, 273 n.9 (4th Cir. 2004)).
Adefila cannot establish a prima facie case under either
Title VII or the ADA, because undisputed evidence shows her job
performance was not satisfactory.

Notably, she has introduced

nothing to contradict Select’s evidence that she was absentminded,

unable

to

present

her

reports

clearly,

failed

to

prioritize work over her personal break time, needed constant
reminders

to

perform

her

job

duties,

following the Model Practices.

and

was

resistant

to

She admitted in her deposition

that she left prescription medication unattended in a patient’s
hospital room.

(Adefila Dep. at 62.)

In her reconsideration

letter, she claimed that she only left the medication in the
patient’s room because she was paged to the nurses’ station and
then had to take the patient for a CT scan.

(Doc. 34 at 9.)

Taking this assertion as true, it does not refute the charge
that she left the medication unattended while she responded to
the call.
issues

Nor does it contradict the myriad other performance

referred

to

in

the

declarations

submitted

by

Select.

Because Adefila cannot establish that she was performing her job
at a satisfactory level, she cannot make out a prima facie case
of discrimination under Title VII or the ADA.5

5

The court need

Moreover, Adefila was hired and fired by Clark within a span of six
weeks. “As the Fourth Circuit consistently has made clear, ‘where the

9

not determine whether Adefila can satisfy the other elements of
the prima facie cases.
C.

Retaliation

Without

direct

evidence,

retaliation

claims

analyzed under the McDonnell Douglas framework.
F.3d at 1228.

are

also

Karpel, 134

To establish a prima facie retaliation claim,

Adefila must show that (1) she engaged in a protected activity,
(2) Select took an adverse employment action against her that a
reasonable employee would find materially adverse, and (3) there
was a causal link between the two events.
Ingalls

Indus.,

Adefila’s

Inc.,

retaliation

711

F.3d

theory

401,
is

Balas v. Huntington

410

that

(4th
Clark

Cir.

2013).

caused

her

termination from DaVita by telling her supervisor there that she
had filed an EEOC charge against Select.

(See Doc. 8-1 at 2.)

However, she has produced no admissible evidence that anyone at
DaVita knew that she had filed an EEOC charge.
cannot satisfy the causation requirement.

Therefore, she

See Hooven-Lewis v.

Caldera, 249 F.3d 259, 278 (4th Cir. 2001).
The only evidence regarding DaVita’s knowledge is Adefila’s
testimony that the manager at DaVita who fired her told her that

hirer and the firer are the same individual and the termination of
employment occurs within a relatively short time span following the
hiring, a strong inference exists that discrimination was not a
determining factor for the adverse action taken by the employer.’”
Springs v. Mayer Brown, LLP, Civ. No. 3:09CV352, 2009 WL 3461231, at
*6 (W.D.N.C. Oct. 20, 2009) (quoting Proud v. Stone, 945 F.2d 796,
797-98 (4th Cir. 1991)).

10

Select

informed

DaVita

that

(Adefila Dep. at 28-29.)
that

the

judgment

court
motion.

cannot
See

she

had

filed

an

EEOC

charge.

This evidence is inadmissible hearsay
consider

in

Greensboro

opposition

Prof’l

to

a

summary

Firefighters

Ass’n,

Local 3157 v. City of Greensboro, 64 F.3d 962, 967 (4th Cir.
1995).

Where testimony includes two levels of hearsay, “both

levels must either be excluded from the definition of hearsay or
satisfy some exception to the hearsay rule” before the testimony
may be admitted.
F.2d

312,

321

insufficient
charge.
D.

to

United States v. Portsmouth Paving Corp., 694
(4th

Cir.

1982).

show

that

DaVita

Thus,
had

this

knowledge

evidence
of

the

is
EEOC

Adefila’s retaliation claim must fail.
Hostile Work Environment

Finally,

Adefila

alleges

that

she

was

subjected

hostile work environment while employed by Select.

to

a

To survive

summary judgment on this claim, Adefila must produce sufficient
evidence for a reasonable jury to find that the conduct was (1)
unwelcome;

(2)

based

on

her

race

or

national

origin;

(3)

“sufficiently severe or pervasive to alter the conditions of
employment and create an abusive atmosphere”; and (4) imputable
to Select.

EEOC v. Central Wholesalers, Inc., 573 F.3d 167, 175

(4th Cir. 2009).

This claim is based upon interactions between

Adefila, who is an African-American of Nigerian descent (Doc. 81 at 5), and Jackson, an African-American immigrant from Sierra
11

Leone (Jackson Decl. ¶ 2).

Even assuming the first two elements

are satisfied, the evidence falls far short of establishing that
Jackson’s

conduct

was

sufficiently

severe

or

pervasive

to

maintain a hostile work environment claim.
Whether

conduct

is

sufficiently

“severe

or

pervasive”

depends on the totality of the circumstances, including “the
frequency of the discriminatory conduct; its severity; whether
it is physically threatening or humiliating, or a mere offensive
utterance;

and

whether

it

employee's work performance.”

unreasonably

interferes

with

an

Harris v. Forklift Sys., Inc.,

510 U.S. 17, 23 (1993); see also Williams v. Aluminum Co. of
Am., 457 F. Supp. 2d 596, 608 (M.D.N.C. 2006).

To create a

cause of action under Title VII, the harassment must be both
subjectively and objectively hostile.
22.

Harris, 510 U.S. at 21–

An objectively hostile work environment is one “that a

reasonable person would find hostile or abusive.”

Id. at 21.

“Whether the harassment is objectively severe or pervasive is
judged

from

the

perspective

plaintiff's position.”
Oncale

v.

Sundowner

of

a

reasonable

person

in

the

Williams, 457 F. Supp. 2d at 608 (citing
Offshore

Servs.,

Inc.,

523

U.S.

75,

81

(1998)).
Title VII was not intended to create a general workplace
civility code.

See Jennings v. Univ. of N.C., 482 F.3d 686, 717

(4th Cir. 2007) (citing Faragher v. City of Boca Raton, 524 U.S.
12

775, 788 (1998)).
every

instance

workplace.”

As such, it “does not provide a remedy for
of

verbal

or

physical

harassment

in

the

Murray v. City of Winston-Salem, 203 F. Supp. 2d

493, 499 (M.D.N.C. 2002) (quoting Lissau v. S. Food Serv., Inc.,
159 F.3d 177, 183 (4th Cir. 1998)).

“[P]laintiffs must clear a

high bar to satisfy the severe or pervasive test.”
Sunbelt

Rentals,

“[S]imple

Inc.,

teasing,

(unless

extremely

changes

in

the

521

offhand
serious)

terms

and

F.3d

306,

comments,
will

not

and
amount

conditions

(quoting Faragher, 524 U.S. at 788).

315

of

(4th

Cir.

isolated
to

EEOC v.
2008).

incidents

discriminatory

employment.”

Id.

On summary judgment, the

court must “identify situations that a reasonable jury might
find to be so out of the ordinary as to meet the severe or
pervasive criterion.”

Id.

Here, the only alleged instances of conduct are that (1)
Jackson slapped at Adefila’s hands on three separate occasions
in an attempt to grab patient files from her and yelled at
Adefila four times (Adefila Dep. at 74-76); and (2) Jackson told
her and a co-worker that Nigerians are cannibals (Doc. 34 at
15).

The incidents other than the cannibals comment may be

indicative

of

a

strained

supervisor-subordinate

relationship,

but they do not rise to the level necessary to state a hostile
work environment claim.

Also, there is no evidence that these

incidents had to do with anything other than
13

Adefila’s work

performance.6

The stray “cannibals” remark – even if considered

by the court - cannot transform a garden variety dispute between
an employee and her supervisor into a Title VII claim.

See

Alexander v. City of Greensboro, Nos. 1:09-CV-293, 1:09-CV-934,
2013

WL

6687237,

Morales-Cruz
2012)).

v.

at

*18

Univ.

Therefore,

of

(M.D.N.C.
P.R.,

Adefila’s

676

Dec.
F.3d

hostile

18,
220,

work

2013)
226

(citing

(1st

environment

Cir.
claim

will be dismissed.7
III. CONCLUSION
For the reasons stated, Adefila’s employment claims under
Title VII and the ADA fail.
IT IS THEREFORE ORDERED that Select’s motion for summary
judgment (Doc. 30) is GRANTED, its motion to strike (Doc. 40) is
DENIED AS MOOT, and this case is DISMISSED WITH PREJUDICE.

/s/
Thomas D. Schroeder
United States District Judge
June 24, 2014
6

On the contrary, Adefila testified that the disputes between her and
Jackson were “always about patient, work, it’s about job [sic].”
(Adefila Dep. at 76.)
7

Adefila’s response brief fails to cite to any legal authority and
often fails to support factual assertions with citations to the
record, in violation of this district’s local rules. See, e.g., L.R.
56.1(d).
Thus, the court has discretion to treat the motion for
summary judgment as uncontested. Id. However, the Fourth Circuit has
instructed that district courts have an obligation to review unopposed
dispositive motions to ensure that dismissal is proper. See Stevenson
v. City of Seat Pleasant, 743 F.3d 411, 416 n.3 (4th Cir. 2014).

14