LONG v. LIBERTYWOOD NURSING CENTER et al
Filing
65
MEMORANDUM OPINION AND ORDER. Signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 2/24/2015, that Plaintiff's Pro Se Motion/Request that the Court Subpoena Witnesses for Trial (Doc. 28 ) is DENIED AS MOOT. FURTHER that Plaintiff's Pro S e Motion/ Request that Mediation Fees be Waived (Doc. 29 ) is GRANTED. Plaintiff will not be required to pay mediation costs. FURTHER that Plaintiff's Motion Request to file Report in Court Records of Mediation Session Results and Reli ef from Assessed Payment of $500 (Doc. 48 ) is DENIED. FURTHER that Defendant's Motion to Strike Plaintiff's Affidavit (Doc. 53 ) is DENIED. FURTHER that Defendant's Motion to Strike Two of Plaintiff's Exhibi ts (Doc. 56 ) is GRANTED IN PART and DENIED IN PART. Defendant's Motion to Strike page 28 of Plaintiff's Brief (Doc. 52 ) is GRANTED, but Defendant's Motion to Strike page 23-24 of Plaintiff's Brief is DENIED. FURTHER that Plaintiff's Pre-trial Motion For United States Constitutional Law Clarity Concerns And Civil Rights Court Proceedings (Doc. 61 ) is DENIED AS MOOT. FINALLY ORDERED that Defendant's Motion for Summary Judgment (Doc. 44 ) is GRANTED and that this action is DISMISSED. A judgment consistent with this Memorandum Opinion and Order and the Memorandum Opinion and Order filed January 28, 2014, will be entered contemporaneously herewith. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
BRIDGET M. LONG,
Plaintiff,
v.
LIBERTYWOOD NURSING CENTER,
WILLIAM SCHUTZ, and
DEBBIE DRAUGHN,
Defendants,
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1:13CV315
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Plaintiff Bridget M. Long (“Plaintiff”), proceeding pro se,
filed this action asserting various claims of discrimination
based on race and retaliation, violating Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq.
(“Title VII”).
This court subsequently dismissed several of
Plaintiff’s claims, leaving only her claim of retaliation in
violation of Title VII.
(Memorandum Opinion and Order (“Mem.
Op. & Order”) (Doc. 22) at 9.)
Presently before this court is a Motion for Summary
Judgment filed by Defendant Libertywood Nursing Center
(“Defendant” or “Defendant Libertywood”).
(Doc. 44.)1
Plaintiff
received a Roseboro letter, informing her of her right to
respond to Defendant’s Motion for Summary Judgment.
(Doc. 46.)
Plaintiff did not submit a formal response to Defendant’s
Motion for Summary Judgment, but instead, filed two documents
opposing the motion.
First, Plaintiff filed an Affidavit,
entitled “Plaintiff’s Pro Se Affidavit in Support of Plaintiff’s
Timely Motion Request to Dismiss Defendant’s Motion for Summary
Judgment and a Motion for a Direct Verdict and Relief,” what
this court refers to as “Plaintiff’s Affidavit.”
(Doc. 51).)
(Pl.’s Aff.
Second, Plaintiff filed her “Pro Se Informal
Brief,” what this court refers to as “Plaintiff’s Brief.”
(Pl.’s Br. (Doc. 52).)
These documents, although they are not
typical “responses,” do outline the reasons why Plaintiff
believes Defendant’s Motion for Summary Judgment should be
denied.
Therefore, this court will consider the arguments put
forth in both documents.
Defendant has subsequently replied
(Doc. 59), and Defendant’s Motion for Summary Judgment is now
ripe for adjudication.
Additionally, there are a number of
1
Defendants William Schutz and Debbie Draughn were
originally named in the Complaint, but this court dismissed
Schutz and Draughn from the case. (Mem. Op. & Order (Doc. 22)
at 9.) Therefore, Defendant Libertywood is the only defendant
for the purpose of this motion.
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other motions that are before this court, which this court will
also address.
For the reasons that follow, this court will deny
Plaintiff’s Pre-trial Motion for United States Constitutional
Law Clarity Concerns and Civil Rights Proceedings (Doc. 61);
grant in part and deny in part Defendant’s Motion to Strike
Plaintiff’s Exhibits (Doc. 56); deny Defendant’s Motion to
Strike Plaintiff’s Affidavit (Doc. 53); deny Plaintiff’s Motion
Request to file Report in Court Records of Mediation Session
Results and Relief from Assessed Payment of $500 (Doc. 48);
grant Plaintiff’s Motion/Request that Mediation Fees be Waived
(Doc. 29); deny as moot Plaintiff’s Pro Se Motion/Request that
the Court Subpoena Witnesses for Trial (Doc. 28); and grant
Defendant’s Motion for Summary Judgment (Doc. 44).
Accordingly,
this case will be dismissed.
I.
PRELIMINARY MATTERS
As indicated above, there are a number of other motions
before this court in addition to Defendant’s Motion for Summary
Judgment. Some of these motions address the evidence this court
is to consider in deciding Defendant’s Motion for Summary
Judgment.
As a result, this court will address these
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preliminary motions first before considering Defendant’s Motion
for Summary Judgment.
A.
Request to Waive Mediation Costs (Doc. 29)
Plaintiff requests that this court waive her mediation
costs.
Local Rules allow this court to waive such fees.
Specifically, Local Rule 83.9c(c) says,
If a party contends it is unable to pay its share of
the mediator's fee, that party shall, before the
conference, file a motion with the Court to be
relieved of the obligation to pay. The motion shall
be accompanied by an affidavit of financial standing.
The mediated settlement conference should proceed
without payment by the moving party, and the Court
will rule on the motion upon completion of the case.
The Court will take into consideration the outcome of
the case, whether by settlement or judgment, and may
relieve the party of its obligation to pay the
mediator if payment would cause a substantial
financial hardship. If the party is relieved of its
obligation, the mediator shall remain uncompensated as
to that portion of his or her fee, a circumstance that
reflects the mediator's duty of pro bono service.
LR 83.9c(c), available at http://www.ncmd.uscourts.gov/sites
/ncmd/files/CIV_LR.pdf.
Looking at the record, it appears that Plaintiff requested
that this court waive the mediation fee before the mediation
conference began.
The mediator in this case was appointed on
April 1, 2014. (Doc. 27.) Plaintiff made her first request for
waiver of mediation fees on April 25, 2014. (Doc. 29.) Then, the
conference took place on August 19, 2014. (Pl.’s Mot. for Relief
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from Assessed Payment of $500.00 (Doc. 48) at 1 (renewing
Plaintiff’s request for relief).)
As part of her initial
request, Plaintiff included an affidavit outlining her financial
difficulties and her lack of a permanent job, satisfying the
requirement that she provide an “affidavit of financial
standing.”
(Pl.’s Aff. of Facts (Doc. 30) at 1.)
This court recognizes that this case will ultimately be
resolved by judgment, rather than by settlement between the
parties.
However, this court also finds that requiring
Plaintiff to pay the mediation costs would “cause a substantial
financial hardship.”
See LR 83.9c(c).
Based on these findings,
this court finds it is proper to waive the mediator fees, and
since this court is entering summary judgment on behalf of
Defendant and dismissing the matter, now is the appropriate time
to waive such fees.
Therefore, Plaintiff’s initial request for waiver of
mediation fees (Doc. 29) will be granted.
Because it requests
the same relief, Plaintiff’s renewed motion for waiver of
mediation costs (Doc. 48) will be denied as moot.
B.
Motion to File Mediation Report (Doc. 48)
Along with asking that mediation costs be waived, Plaintiff
also filed a “Motion Request to File Report in Court Records of
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Mediation Session Results.”
(Doc. 48.)
Under this court’s
local rules,
Evidence of statements made and conduct occurring in
a mediated settlement conference or otherwise in
communications with a mediator during the mediation
process . . . shall not be subject to discovery and
shall be inadmissible in any proceeding in the action
or other civil actions on the same claim.
LR 83.9e(i)(1).
There are limited exceptions to this rule; for
instance, the statements or conduct of a party during mediation
can be disclosed in a proceeding for sanctions.
See LR
83.9e(i)(1)(i).
To the extent that Plaintiff seeks to inform this court of
the substance of the parties’ negotiations, this information is
inadmissible.
To the extent Plaintiff seeks to report the
parties’ conduct during the mediation, Plaintiff has not made
allegations of sanctionable conduct by either party.
It appears
that there may have been some miscommunication over the date and
time of the mediation session, and this certainly was an
inconvenience to Plaintiff who had to secure transportation.
Nonetheless, based on the information in front of this court, it
does not appear that sanctions are warranted.
motion will be denied.
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Accordingly, this
C.
Motion for Directed Verdict (Doc. 51)
The title of Plaintiff’s Affidavit (Doc. 51) indicates that
it is requesting a “direct verdict.”
There is no provision in
the Federal Rules of Civil Procedure that specifically provides
for a directed verdict, but Rule 50(a) allows the court to grant
a motion for judgment as a matter of law, which would have the
same effect as a directed verdict in a state court.
See Fed. R.
Civ. P. 50(a).
However, this is not the correct time for Plaintiff to make
such a motion.
A motion for judgment as a matter of law occurs
during a jury trial when the other party has “been fully heard.”
Id.
This matter has not reached a trial before a jury, and as a
result, this court cannot enter judgment as a matter of law for
Plaintiff pursuant to Rule 50(a).
Additionally, Plaintiff has not shown that she is entitled
to judgment as a matter of law.
A judgment as a matter of law
can be issued when the court “finds that a reasonable jury would
not have a legally sufficient evidentiary basis to find for the
party.”
Id.
This court would have to find that, assuming that
all of the facts are the way that Defendant sees them, there is
no way a jury could rule in Defendant’s favor.
As explained in
this court’s analysis of Defendant’s Motion for Summary
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Judgment, there are a number of facts that a jury could use to
find for Defendant.
Therefore, even if this was the proper time
to consider a motion for judgment as a matter of law, or were
this court to convert the motion to a motion for summary
judgment, this court would not be able to grant such a motion
for Plaintiff.
D.
Request to Subpoena Witnesses for Trial (Doc. 28)
In a motion dated April 24, 2014, Plaintiff requested that
approximately 30 witnesses be “subpoenaed for public trial
proceedings” as Plaintiff believed these individuals have
“knowledge of my employment discrimination and I being aggrieved
in this case matter.”
(Pl.’s Motion/Request to Subpoena
Witnesses (Doc. 28) at 1-4.)
Because of this court’s decision on Defendant’s Motion for
Summary Judgment explained in this opinion, there will be no
trial.
Therefore, there is no need to subpoena witnesses.
As a
result, this court will deny this motion as moot.
E.
Plaintiff’s Additional Claims (Doc. 52)
Plaintiff, in her Pro Se Informal Brief, made a number of
other claims for relief besides her retaliation claim under
Title VII.
These claims include: (1) a Fourteenth Amendment due
process claim for Defendant not providing a pre-dismissal
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conference before terminating Plaintiff; (2) a First Amendment
claim; and (3) an age discrimination claim.
(Pl.’s Br. (Doc.
52) at 3-5, 10.)2
If Plaintiff intends for these to be amendments to her
original complaint, this court will not permit Plaintiff to
amend her complaint to add these claims.
Rule 15(a) of the
Federal Rules of Civil Procedure governs when a party can amend
her complaint.
Fed. R. Civ. P. 15(a).
A party is allowed to
amend her complaint automatically with 21 days of filing the
complaint, but after that, the party must have “leave” or
permission from the court to amend her pleading.
See Fed. R.
Civ. P. 15(a)(1)-(2).
There are two reasons why this court will deny Plaintiff
permission to amend her complaint to include these new claims.
First, this court notes that these new claims are substantially
different from the Title VII claim currently in front of this
court, alleging new causes of action that would require this
court to inquire into new facts.
Additionally, Plaintiff
attempts to add these claims at a late point in these
proceedings, when the parties have completed discovery and
All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.
2
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Defendant has filed a motion for summary judgment.
Therefore,
adding these claims now would prejudice Defendant.
Second, this court finds that these claims would be futile,
meaning that they are “clearly insufficient or frivolous on
[their] face.”
See Anand v. Ocwen Loan Servicing, LLC, 754 F.3d
195, 200 (4th Cir. 2014).
For instance, Plaintiff’s new First
and Fourteenth Amendment claims only apply to government action.
Actions by a private employer do not fall within the protection
of the First and Fourteenth Amendments.
See, e.g., Rendell-
Baker v. Kohn, 457 U.S. 830, 837 (1982); Jackson v. Metro.
Edison Co., 419 U.S. 345, 349 (1974).
Additionally, Plaintiff
has not stated a claim for age discrimination.
As a result,
this court will not consider these additional claims.
F.
Defendant’s Motions to Strike (Docs. 53, 56)
Defendant Libertywood requests that this court strike
Plaintiff’s Affidavit (Doc. 51) and strike two exhibits included
on pages 23, 24, and 28 of Plaintiff’s Brief (Doc. 52). (See
Def.’s Mots. to Strike (Docs. 53, 56).)
First, Defendant requests that this court strike portions
of Plaintiff’s Affidavit because Paragraphs 12, 13, 14, 15, and
7 of Plaintiff’s Affidavit fail to comply with Rule 56(c)(2) and
56(c)(4) of the Federal Rules of Civil Procedure.
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(Doc. 53.)
Rule 56(c)(4) governs affidavits used to support or oppose a
motion for summary judgment, and requires that such an affidavit
“be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant
is competent to testify on the matters stated.”
56(c)(4).
Fed. R. Civ. P.
Rule 56(c)(2) then gives one party the opportunity to
object to any material cited by another party if that material
cannot be presented in a form that would be admissible in
evidence.
This court agrees with Defendant that Plaintiff’s Affidavit
does not comport with the rules set forth for affidavits, and
this court does not read the allegations made in Plaintiff’s
Affidavit as presenting admissible evidence.
Nevertheless, it
appears to this court that Plaintiff was attempting to respond
to Defendant’s Motion for Summary Judgment when she prepared her
“Affidavit” and included arguments that one would expect a party
to make in a response to a summary judgment motion.
Therefore,
consistent with its obligation to construe pro se pleadings
liberally, this court will not strike Plaintiff’s Affidavit but
will treat Plaintiff’s Affidavit as a response to Defendant’s
Motion for Summary Judgment.
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Second, Defendant requests that this court strike two
exhibits attached to Plaintiff’s Brief because they fail to
comply with the Federal Rules of Civil Procedure and the Federal
Rules of Evidence.
(Doc. 56.)
Defendant argues that Exhibit
20, (see Pl.’s Br. (Doc. 52) at 28), attempts to disclose
evidence of settlement offers made during the Equal Employment
Opportunity Commission (“EEOC”) conciliation process and is
therefore inadmissible under the provisions of Title VII3 and
under Fed. R. Evid. 408.
(Def.’s Mem. in Supp. of Def.’s Mot.
to Strike Two of Pl.’s Exs. (“Def.’s Strike Mem.”) (Doc. 60) at
1-2.)
This court agrees, and Exhibit 20 is stricken from
Plaintiff’s Brief.
Defendant also points to an unnumbered exhibit in
Plaintiff’s Brief that contains an EEOC determination made on
January 28, 2013, (see Pl.’s Br. (Doc. 52) at 23-24), and
contends that it is inadmissible under Rule 403 of the Federal
Rules of Evidence.
(Def.’s Strike Mem. (Doc. 60) at 2.)
Generally, prior administrative findings, such as the EEOC
Although Defendant cites 42 U.S.C. § 2000(e)(m) in its
brief, this court assumes that Defendant is referring to the
confidentiality requirements of the Title VII conciliation
provisions. See 42 U.S.C. § 2000e-5(b) ("Nothing said or done
during and as a part of [the conciliation process] may be made
public . . . or used as evidence in a subsequent proceeding
without the written consent of the persons concerned.").
3
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determination in this case, can be admitted as evidence, but as
Defendant correctly points out, this court is not bound by the
EEOC’s findings.
See Laber v. Harvey, 438 F.3d 404, 421-22 (4th
Cir. 2006).
Rule 403 provides that this court “may exclude relevant
evidence if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.”
Evid. 403.
Fed. R.
This court agrees with Defendant that the EEOC
determination may have diminished probative value due to a
possible error of law in the EEOC’s determination.
Yet, at this
point, this court does not find that any of the concerns
outlined in Rule 403 substantially outweigh the probative value.
Accordingly, the motion to strike page 23 and 24 of Plaintiff’s
Brief is denied.
G.
Plaintiff’s Pretrial Motion (Doc. 61)
Plaintiff also filed a “Pre-trial Motion For United States
Constitutional Law Clarity Concerns And Civil Rights Court
Proceedings,” what this court refers to as “Plaintiff’s Pretrial Motion.”
(Pl.’s Pre-trial Mot. (Doc. 61).)
In this pre-
trial motion, Plaintiff expresses a number of concerns and asks
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that this court “intercede on [Plaintiff’s] behalf to prevent
the defendant Libertywood Nursing Center representing attorney
. . . from overstepping lawful boundaries in the court
proceedings.”
(Id. at 1.)
Plaintiff’s main concern seems to stem from Defendant’s
motions to strike.
(See id. at 1-2.)
This court has denied one
motion to strike completely and denied one motion to strike in
part, and in addition, this court has explained its reasons for
reaching such a decision.
See supra Part I.F.
To the extent
Plaintiff’s Pre-trial Motion addresses these motions to strike,
the motion is denied as moot.
Plaintiff also seems to be concerned that counsel for
Defendant Libertywood has been granted preferential treatment,
since he is a licensed attorney and Plaintiff is proceeding
pro se. (Plaintiff’s Pre-trial Mot. (Doc. 61) at 2.)
This court
can assure Plaintiff that there has been no preferential
treatment.
Plaintiff has represented herself well, but as
explained below, the merits of Plaintiff’s claim require that
this court dismiss the case.
Finally, Plaintiff asks for counsel at trial.
Because this
court has dismissed her case, this request is now moot.
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II.
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
The sole dispositive motion pending before this court is
Defendant’s Motion for Summary Judgment.
(Doc. 44.)
Based on
the reasons stated herein, this court will grant Defendant’s
motion.
A.
Legal Standard
Summary judgment is appropriate where an examination of the
pleadings, affidavits, and other proper discovery materials
before the court demonstrates that no genuine issue of material
fact exists, thus entitling the moving party, in this case
Defendant, to judgment as a matter of law.
Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
Defendant bears the burden of initially demonstrating that there
is no genuine issue of material fact.
Celotex, 477 U.S. at 323.
If the Defendant has met that burden, then the nonmoving party,
Plaintiff, must persuade the court that a genuine issue remains
for trial.
When the [Defendant] has carried its burden under
Rule 56(c), its opponent must do more than simply
show that there is some metaphysical doubt as to the
material facts. In the language of the Rule, the
nonmoving party must come forward with “specific
facts showing that there is a genuine issue for
trial.”
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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586–87 (1986) (citations and footnote omitted) (quoting Fed. R.
Civ. P. 56).
In considering a motion for summary judgment, the
court is not to weigh the evidence, but rather must determine
whether there is a genuine issue for trial.
Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986).
The court must view the facts in the light most favorable
to Plaintiff, drawing inferences favorable to that party if such
inferences are reasonable.
Id. at 255.
However, there must be
more than a factual dispute; the fact in question must be
material, and the dispute must be genuine.
56(c); Anderson, 477 U.S. at 248.
Fed. R. Civ. P.
A dispute is only “genuine”
if “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”
Id.
Along with viewing the facts in the light most favorable to
Plaintiff, this court must also recognize that Plaintiff is
proceeding pro se.
When reviewing a pro se complaint, federal
courts should examine carefully the plaintiff's factual
allegations, and not summarily dismiss the complaint “unless it
appears ‘beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to
relief.’”
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978)
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(citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also
Boag v. MacDougall, 454 U.S. 364, 365 (1982) (recognizing that
federal courts should construe a pro se petitioner’s pleading
liberally, no matter how inartful).
B.
Facts
Many of the facts underlying Plaintiff’s claim for
retaliation are undisputed.
Until early 2010, Plaintiff was
employed by two companies: Healthcare Services Group, Inc.
(“HSG”) and Defendant Libertywood.
HSG provides housekeeping
services to Defendant Libertywood.
Along with working as a
housekeeper with HSG, Plaintiff worked for Defendant Libertywood
on a part-time basis, performing the duties of a non-certified
interactive aid or “sitter.”
At some point before March 2010, another employee - Pam
Everhart - filed a Title VII claim.
The Title VII complaint
alleged that an employee - Plaintiff’s cousin - was subjecting
Everhart to a hostile work environment.
Plaintiff was not
mentioned in the claim, nor was she involved in making the
claim.
Plaintiff does not dispute that, as part of the
investigation launched by her employer, all employees of both
HSG and Defendant Libertywood were instructed not to speak with
anyone associated with the hostile work environment claim.
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Plaintiff admits that she then had a conversation with
Everhart. (Def.’s Mem. in Supp. of Mot. for Summ. J. (“Def.’s
Mem.”), Ex. K, Deposition of Bridget M. Long (“Pl.’s Dep.”)
(Doc. 45-11) at 12-13.)
Plaintiff contests any characterization
by Defendant that she “approached Pam Everhart about any
complaint she had made against any employee.”
51) ¶ 9.)
(Pl.’s Aff. (Doc.
Nonetheless, Plaintiff’s supervisor at HSG, Ed
Johnson, believed that Plaintiff had spoken with Everhart, and
on April 5, 2010, HSG terminated Plaintiff for insubordination.
(Def.’s Mem., Ex. A, Pl.’s HSG Personnel File (Doc. 45-1) at 2.)
Plaintiff asserts that Johnson cannot prove that she was
insubordinate (Pl.’s Aff. (Doc. 51) ¶ 14.), but she does not
contest that her speaking with the complainant served as the
basis for HSG’s decision to terminate her.
HSG has not been
named as a party to this suit.
Although Plaintiff was terminated by HSG in April 2010,
Plaintiff was not terminated by Defendant Libertywood at that
time.
Plaintiff contends that her supervisors at Defendant
Libertywood indicated that they would look into the matter and
would schedule Plaintiff to work once the matter was settled.
(Def.’s Mem., Ex. C, Pl.’s First EEOC Charge (Doc. 45-3) at 2.)
Nonetheless, the last day Plaintiff worked for Defendant
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Libertywood was March 19, 2010.
(Def.’s Mem., Ex. K, Pl.’s Dep.
(Doc. 45-11) at 12.)
On June 12, 2010, Plaintiff filed her first EEOC charge
against Defendant Libertywood (Case No. 435-2010-00536),
claiming that Defendant Libertywood discriminated against
Plaintiff based on her race.
In the charge, Plaintiff made
several allegations against both Defendant Libertywood and HSG
(even though HSG was not named in the charge).
(Def.’s Mem.,
Ex. C, Pl.’s First EEOC Charge (Doc. 45-3) at 1-2.)
Plaintiff
reported that, on or about April 16, 2010, an employee of
Defendant Libertywood indicated that Plaintiff had not been
fired, but Plaintiff also recognized that she had not worked for
Defendant Libertywood between March 19 and June 12, 2010.
at 2.)
(Id.
The EEOC dismissed this charge and issued Plaintiff a
right-to-sue letter on March 17, 2011.
(Def.’s Mem., Ex. D,
First Right-to-Sue Letter (Doc. 45-4) at 1-2.)
The letter
stated, “In order to pursue this matter further, you must file a
lawsuit against the respondent(s) named in the charge within 90
days of the date you receive this Notice.”
(Id. at 2.)
Yet,
Plaintiff did not file a lawsuit on this charge within the time
allotted.
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On March 5, 2011, Plaintiff filed her second EEOC charge
against Defendant Libertywood (Case No. 435-2011-00340),
claiming that Defendant Libertywood retaliated against Plaintiff
based on the filing of her first EEOC charge.
(Def.’s Mem., Ex.
F, Pl.’s Second EEOC Charge (Doc. 45-6) at 1.)
Plaintiff
referenced her first EEOC charge and stated that, at the time of
filing her first charge, she was told that she was “still on
payroll” with Defendant Libertywood.
(Id.)
Plaintiff further
stated that, on February 21, 2011, she contacted Defendant
Libertywood and asked to be placed on the schedule.
(Id.)
Defendant Libertywood allegedly said there was no work at the
time, but Plaintiff stated that Defendant Libertywood had hired
new employees during that time.
(Id.)
As part of the investigation into Plaintiff’s second EEOC
charge, the EEOC received a letter from Cynthia Duncan, the
human resource director for Defendant Libertywood, stating:
Every time I needed an employee to work I was
told that I could not call [Plaintiff], because she
was no longer an employee, but she was still on the
payroll. As of today she is still on the payroll.
She is still not asked to fill in when needed.
(Def.’s Mem., Ex. I, Cynthia Duncan Letter (Doc. 45-9) at 5.)
The letter was dated May 20, 2011.
Plaintiff agreed that she
knew of Ms. Duncan’s letter and, by the time she filed her
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retaliation claims, Plaintiff says she was aware that Defendant
may have been retaliating against her by not placing her on the
schedule.
(Def.’s Mem., Ex. K, Pl.’s Dep. (Doc. 45-11) at 29-
30, 49.)
The EEOC dismissed Plaintiff’s second charge and issued
Plaintiff a right-to-sue letter on September 25, 2012.
(Def.’s
Mem., Ex. G, Second Right-to-Sue Letter (Doc. 45-7) at 1.)
The
letter provided the same warning that Plaintiff was to file suit
within 90 days of receiving the right-to-sue letter.
Yet,
Plaintiff did not file a lawsuit on her second charge within the
time allotted.
On October 4, 2012, Plaintiff filed her third EEOC charge
against Defendant Libertywood (Case No. 435-2012-00928),
claiming again that Defendant Libertywood retaliated against
Plaintiff “for reporting and opposing discrimination in
violation of Title VII.”
(Def.’s Mem., Ex. J, Pl.’s Third EEOC
Charge (Doc. 45-10) at 1.)
In her third charge, Plaintiff
stated that she contacted Defendant Libertywood and was told
that she had been discharged.
(Id.)
On January 28, 2013, the
EEOC issued a determination that “the evidence obtained during
the investigation establishes that [Plaintiff’s] filing of
charges of discrimination was a factor in [Defendant
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Libertywood’s] decision not to recall her for available jobs.”
(Pl.’s Br. (Doc. 52) at 24.)
Plaintiff and Defendant
Libertywood engaged in conciliation efforts, but after those
proved unsuccessful, the EEOC issued Plaintiff a right-to-sue
letter on this claim and Plaintiff filed suit in this court on
April 17, 2013.
C.
Analysis
To establish a prima facie case for retaliation in
violation of Title VII, a plaintiff must allege (1) that she
engaged in protected activity; (2) that the employer took an
adverse employment action against her; and (3) that a causal
link exists between the protected activity and the adverse
action.
Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190
(2012).
If this court finds that Plaintiff has shown a prima
facie case, Defendant must provide a legitimate,
nondiscriminatory reason for the adverse employment action, and
if it does so, Plaintiff must refute that reason by a
preponderance of the evidence.
Williams v. Cerberonics, Inc.,
871 F.2d 452, 456 (4th Cir. 1989).
In the end, Plaintiff “bears
the ultimate burden of proving that she has been the victim of
retaliation.”
Laughlin v. Metro. Washington Airports Auth., 149
F.3d 253, 258 (4th Cir. 1998).
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Earlier in these proceedings, this court found that
Plaintiff stated a claim for retaliation under Title VII, noting
that Plaintiff’s Complaint “allege[d] that Plaintiff filed
charges with the EEOC about her treatment, that she was
thereafter not scheduled to work or allowed to return to work,
and that other employees were discharged and new people hired
even though Plaintiff was told there was no work available for
her.”
(Mem. Op. & Order (Doc. 22) at 6.)
Accordingly, this
court denied Defendant’s Motion to Dismiss in part.
(Id.)
However, despite this court’s finding that Plaintiff stated a
claim for retaliation, this court now finds that there is not
enough evidence in the record to establish a prima facie case of
retaliation.
First, this court notes that Plaintiff has shown that she
engaged in protected activity.
Protected activity under Title
VII involves both “participation” in a Title VII claim or
“opposition” to illegal discrimination, even if the claimant has
not filed a Title VII claim against the employer.
F.3d at 259 (citing 42 U.S.C. § 2000e-3(a)).
Laughlin, 149
Here, Plaintiff
asserts that Defendant Libertywood retaliated against her for
“reporting and opposing discrimination in violation of Title
VII.”
(Def.’s Mem., Ex. J, Pl.’s Third EEOC Charge (Doc. 45-10)
-23-
at 1.)
Plaintiff filed two EEOC charges before filing the EEOC
charge that serves as the basis for this action.
As a result,
Plaintiff has satisfied this court that she engaged in protected
activity within the meaning of Title VII’s retaliation
provisions.
Second, this court also notes that Plaintiff has shown that
she was subject to an adverse employment action.
Plaintiff
contends that, on October 2, 2012, she was informed that she was
terminated, certainly an adverse employment action.
See
Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 775 (4th Cir.
1997).
Furthermore, to the extent Defendant Libertywood refused
to add Plaintiff to the schedule, this would also constitute an
adverse employment action.
Such a repeated refusal to add
Plaintiff to the schedule would “have dissuaded a reasonable
worker from making or supporting a charge of discrimination.”
See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006).
For its part, Defendant Libertywood does not dispute that
Plaintiff was subjected to an adverse employment action, arguing
instead that Plaintiff had constructive notice of any adverse
employment action as early as June 2010.
(See Def.’s Mem. (Doc.
45) at 7-8 (“[Plaintiff] knew that she was constructively
-24-
terminated before she filed her first EEOC complaint, and when
she received her right to sue letter on her second EEOC
complaint.” (citations omitted)).)
Although Defendant does not dispute that Plaintiff was
subject to an adverse employment action, it is worth noting that
this court is limited in what adverse employment actions it can
consider as the basis for Plaintiff’s claim.
Title VII imposes
a strict time limit on bringing a charge alleging employment
discrimination or retaliation, requiring that a party file her
charge “within one hundred and eighty days after the alleged
unlawful employment practice occurred.”
5(e)(1).
42 U.S.C. § 2000e-
Therefore, if a party does not “file a charge within
either 180 or 300 days of the date of the act,” the party
“lose[s] the ability to recover for it.”
4
See Nat'l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002).
Although
an untimely filed adverse employment action is not actionable,
nothing in the statute prevents “an employee from using the
4
The 300-day window mentioned in 42 U.S.C. § 2000e-5(e)(1)
does not apply in North Carolina. “North Carolina has no state
agency with statewide ‘authority to grant or seek relief from
[an unlawful employment] practice . . . upon receiving notice
thereof,’” see Bratcher v. Pharm. Prod. Dev., Inc., 545 F. Supp.
2d 533, 539 (E.D.N.C. 2008) (quoting 42 U.S.C. § 2000e–5(e)(1)),
meaning that Plaintiff must file a complaint within 180 days of
the adverse employment action to file a timely claim.
-25-
prior acts as background evidence in support of a timely claim.”
Id. at 113.
Here, Plaintiff filed her third EEOC charge on October 4,
2012.
at 1.)
(Def.’s Mem., Ex. J, Pl.’s Third EEOC Charge (Doc. 45-10)
Therefore, this court can consider any adverse
employment actions that took place in the 180-day period between
April 7, 2012 and October 4, 2012, but not what happened
earlier.5
Plaintiff alleges she was terminated on October 2,
2012, well after April 7, 2012, and as a result, Plaintiff’s
termination is an actionable adverse employment action.
5
Defendant uses the untimely filed EEOC charges to argue
that this court lacks subject matter jurisdiction. This court
must assess whether it has subject matter jurisdiction before it
can look to the merits of the case. See Kontrick v. Ryan, 540
U.S. 443, 455 (2004). As a basis for its argument, Defendant
states that the claims in Plaintiff’s third EEOC charge are
“mere re-allegations” of the claims made in Plaintiff’s timebarred second EEOC charge. (Def.’s Mem. (Doc. 45) at 7-10.)
Defendant claims Plaintiff knew that she had been constructively
discharged at the time of filing her second EEOC charge, and as
a result, she cannot use her discharge as a basis for claiming
retaliation. (Id.) However, this court finds that it does
indeed have subject matter jurisdiction over the claim. The 90day filing requirement “is not a jurisdictional prerequisite to
suit in federal court,” but instead is a non-jurisdictional
requirement similar to the statute of limitations. See Zipes v.
Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); see also
Vitello v. Liturgy Training Publications, 932 F. Supp. 1093,
1096 (N.D. Ill. 1996) (citing St. Louis v. Alverno College, 744
F.2d 1314, 1316 n.2 (7th Cir. 1984)). This court will consider
the effect that any untimeliness has on the merits of
Plaintiff’s claim, but the fact that Plaintiff did not timely
file a previous EEOC charge does not strip this court of subject
matter jurisdiction.
-26-
Additionally, any decision not to add Plaintiff to the schedule
between April 7, 2012 and October 4, 2012, could also be an
actionable adverse employment action.
However, any decisions
made by Defendant Libertywood before April 7, 2012, including
the actions alleged in Plaintiff’s previous EEOC charges, are
not actionable now.
Although not actionable, as the Supreme Court recognized in
Morgan, this evidence could be used as “background evidence” in
support of Plaintiff’s timely claim.
113.
See Morgan, 536 U.S. at
Yet, even considering the information presented in the
first and second charges as “background evidence,” this court
finds that there is no genuine dispute as to causation.
The
evidence, even taken in the light most favorable to Plaintiff,
does not establish a causal link between Plaintiff’s filing of
an EEOC charge and the decision not to add her to the schedule
and ultimately to terminate her.
The causation prong of the retaliation prima facie case
requires plaintiffs to demonstrate a causal connection between
the protected activity and the adverse employment action.
Horne
v. Reznick Fedder & Silverman, 154 Fed. Appx. 361, 364 (4th Cir.
2005) (per curiam).
In a Title VII retaliation claim, Plaintiff
must ultimately show that the adverse employment action would
-27-
not have occurred if Plaintiff had not filed her charges of
discrimination with the EEOC.
Univ. of Texas Sw. Med. Ctr. v.
Nassar, 570 U.S. ____, ____, 133 S. Ct. 2517, 2533 (2013).
This
is a very high standard, and it is not enough to show that
retaliation was a “motivating factor” in the decision.
See id.
When asserting a prima facie case, the Fourth Circuit has
held that “very little evidence of a causal connection is
required,” and temporal proximity is sufficient.
Burgess v.
Bowen, 466 F. App'x 272, 283 (4th Cir. 2012) (internal quotation
marks and alterations omitted).
However, the Fourth Circuit has
also held a lapse of as little as “two months between the
protected activity and the adverse action is ‘sufficiently long
so as to weaken significantly the inference of causation.’”
Horne, 154 Fed. Appx. at 364 (quoting King v. Rumsfeld, 328 F.3d
145, 151 n.5 (4th Cir. 2003)).
Additionally, actions that take
place before the employee’s protected action can also rebut any
inference of causation.
Id.
When examining Plaintiff’s claim that she was discharged
for her participation in a Title VII investigation, the length
of time between Plaintiff’s first and second EEOC charges and
her eventual termination negates any inference of causation.
Plaintiff filed her first EEOC charge on June 12, 2010 and her
-28-
second charge on March 5, 2011.
October 2, 2012.
Plaintiff was terminated on
The 19-month interval between filing a charge
and being terminated is simply too long to infer that there was
a causal connection.
See Dowe v. Total Action Against Poverty
in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998) (“A lengthy
time lapse between the employer becoming aware of the protected
activity and the alleged adverse employment action, as was the
case here, negates any inference that a causal connection exists
between the two.”).
Examining Plaintiff’s claim that she was not added to the
schedule due to her protected activity is a more difficult
analysis.
For the reasons stated above, the length of time
between Plaintiff’s first and second EEOC charges and any
decision to keep Plaintiff on the schedule within the actionable
time period (i.e., after April 7, 2012) is simply too long to
provide an inference of causation.
Nevertheless, Defendant Libertywood’s actions committed
before April 7, 2012, could provide some “background evidence”
on the timely filed claims or establish that the decision to
keep Plaintiff from the schedule in 2012 was a continuation of a
retaliatory decision made earlier.
But when this court looks to
Defendant Libertywood’s decisions to keep Plaintiff from being
-29-
added to the schedule immediately after Plaintiff filed her
first EEOC charge, it finds that there is sufficient evidence to
rebut any inference of causation.
Plaintiff filed her first
charge with the EEOC on June 12, 2010.
At that point, Plaintiff
admits she had not worked for Defendant Libertywood since
March 19, 2010.
12.)
(Def.’s Mem., Ex. K, Pl.’s Dep. (Doc. 45-11) at
The decision not to put Plaintiff on the schedule for over
three months before any filing by Plaintiff - or any other
alleged opposition to Defendant Libertywood - rebuts any
inference that the decision not to put Plaintiff on the schedule
was caused by her filing of the EEOC charge.
Moreover, any inference of causation is further rebutted by
the evidence that Plaintiff was found to be insubordinate by HSG
because she was observed speaking with Pam Everhart, a person
whom HSG had warned all employees not to communicate with during
the pendency of an investigation.
This evidence further weakens
Plaintiff’s argument that the decision not to put Plaintiff on
the schedule was done for a retaliatory purpose.
All of the
events that transpired and led to Plaintiff’s discharge from HSG
preceded Plaintiff’s filing of an EEOC charge.
More
importantly, these incidents provide context for Defendant
Libertywood’s initial decision to keep Plaintiff from the
-30-
schedule.
See Lowe, 145 F.3d at 657.
Without establishing
causation, Plaintiff’s claim cannot survive summary judgment,
and Defendant is entitled to judgment as a matter of law.
Id.
This court further finds that, if Plaintiff could show
causation sufficient to demonstrate a prima facie case,
Plaintiff’s claim would still not survive summary judgment.
Plaintiff’s insubordination is a legitimate nondiscriminatory
reason for keeping Plaintiff off of the schedule.
871 F.2d at 456.
See Williams,
Furthermore, Plaintiff has not rebutted this
legitimate nondiscriminatory reason, nor has she produced any
evidence that her termination was due to retaliatory animus.
This court does note that its decision is different from
the determination made by the EEOC.
In its determination on
Plaintiff’s third charge, the EEOC found that “the evidence
obtained during the investigation establishes that [Plaintiff’s]
filing of charges of discrimination was a factor in [Defendant
Libertywood’s] decision not to recall her for available jobs.”
(Pl.’s Br. (Doc. 52) at 24.)
The EEOC’s determination is
admissible in this proceeding, but this court conducts a de novo
-31-
review of whether there is evidence of retaliation.6
See Laber,
438 F.3d at 421-22.
When conducting this de novo review of Plaintiff’s claim,
this court has found that Plaintiff cannot establish that
retaliation was the sole cause of why Defendant Libertywood
decided not to put her on the schedule.
The EEOC appears to
have applied the mixed-motive framework and found retaliation
was a factor in the decision to keep Plaintiff off of the
schedule.
This is not enough, as this court must find that “the
unlawful retaliation would not have occurred in the absence of
the alleged wrongful action or actions of the employer.”
Nassar, 133 S. Ct. at 2533.
With the undisputed evidence that
Plaintiff was terminated by HSG due to her insubordination and
the undisputed evidence that Plaintiff had not worked for
Defendant Libertywood for three months before filing her first
charge, this court cannot find that the evidence indicates a
genuine dispute as to retaliation.
As a result, this court
disagrees with the EEOC determination and finds that Defendant
Libertywood is entitled to judgment as a matter of law.
Because of the differing process, in this civil action,
the burden is on Plaintiff to present evidence of unlawful
discrimination. It appears to this court that the factual
record before the EEOC may have been different from the
allegations and evidence Plaintiff presented to this court.
6
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III. CONCLUSION
IT IS THEREFORE ORDERED that Plaintiff’s Pro Se
Motion/Request that the Court Subpoena Witnesses for Trial (Doc.
28) is DENIED AS MOOT.
IT IS FURTHER ORDERED that Plaintiff’s Pro Se Motion/
Request that Mediation Fees be Waived (Doc. 29) is GRANTED.
Plaintiff will not be required to pay mediation costs.
IT IS FURTHER ORDERED that Plaintiff’s Motion Request to
file Report in Court Records of Mediation Session Results and
Relief from Assessed Payment of $500 (Doc. 48) is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion to Strike
Plaintiff’s Affidavit (Doc. 53) is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion to Strike Two
of Plaintiff’s Exhibits (Doc. 56) is GRANTED IN PART and DENIED
IN PART.
Defendant’s Motion to Strike page 28 of Plaintiff’s
Brief (Doc. 52) is GRANTED, but Defendant’s Motion to Strike
page 23-24 of Plaintiff’s Brief is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Pre-trial Motion For
United States Constitutional Law Clarity Concerns And Civil
Rights Court Proceedings (Doc. 61) is DENIED AS MOOT.
IT IS FINALLY ORDERED that Defendant’s Motion for Summary
Judgment (Doc. 44) is GRANTED and that this action is DISMISSED.
-33-
A judgment consistent with this Memorandum Opinion and Order and
the Memorandum Opinion and Order filed January 28, 2014, will be
entered contemporaneously herewith.
This the 24th day of February, 2015.
_______________________________________
United States District Judge
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