ADEFILA v. FREIMANN
Filing
35
MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 1/20/2015, that DaVita's motion for summary judgment (Doc. 26 ) is GRANTED, and this case is DISMISSED WITH PREJUDICE. (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CHRISTIANAH O. ADEFILA,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
DAVITA, INC.,
Defendant.
1:13cv940
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
Before the court is a motion for summary judgment by Defendant
DaVita, Inc. (“DaVita”) as to Plaintiff Christianah Adefila’s
single claim for retaliation under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e et seq.
(Doc. 26.)
For the
reasons set forth below, DaVita’s motion will be granted and the
case will be dismissed.
I.
BACKGROUND
The undisputed essential facts, viewed in the light most
favorable to Adefila, as the non-moving party, are as follows.
Defendant
DaVita
provides
dialysis
treatment
and
support
services to patients with chronic kidney failure and end-stage
renal disease.
(Doc. 26-2 (Moore Decl.) ¶ 3.)
DaVita does this,
at least in part, by running dialysis clinics at the locations of
its clients.
(Id. ¶ 4.)
These clients include Alamance Regional
Medical Center (“ARMC”) and Select Specialty Hospital (“Select”).
(Id.)
Both of these clients have the contractual right to refuse
to accept any employee that DaVita assigns to work on their
premises.
(Id.)
Adefila applied to DaVita to work as a nurse and was granted
an interview in September 2012 with Shatisha Moore for a position
as an acute dialysis nurse.
(Id. ¶ 6.)
During the interview,
Moore told Adefila that the position was for work at ARMC and would
report to Moore.
(Id. ¶ 7.)
She also told Adefila that, if hired,
she may be assigned to work at Select for some periods.
¶ 8.) 1
(Id.
Although Adefila had previously worked for Select as a
registered nurse from May to June 2012, she did not disclose it
during the hiring process, nor did she tell Moore that she had
been
terminated
by
Select
for
leaving
prescription
medicine
unattended in a patient’s room (a charge Adefila does not deny).
(Adefila Dep. at 2, 4-5, 21, Doc. 26-1.) 2
Rather, she deliberately
withheld this information because she was fired and thereafter
filed an employment discrimination claim against Select with the
Equal
Employment
discrimination
and
Opportunity
hostile
Commission
work
(“EEOC”),
environment
based
claiming
upon
her
1
Adefila could not recall in her deposition whether Moore mentioned
Select was a client during the initial interview or during orientation.
(Adefila Dep. at 11–12, Doc. 26-1.)
2
DaVita has submitted two different documents for Adefila’s deposition
transcript, each with different excerpts. The docket number is retained
in the citation to show the source of the cited facts; the page cited
is of the docket entry, not of the deposition itself.
2
national origin and alleged disability.
(Adefila Dep. at 6-7, 21
& Ex. 1, Doc. 26-1; Doc. 32 (Adefila Aff.) ¶ 2.) 3
Adefila, who began work on October 15, 2012.
DaVita hired
(Adefila Dep. at 16,
Doc. 26-1.)
As a DaVita employee, Adefila was directed to report to Select
for orientation on October 24, 2012.
(Adefila Aff. ¶ 3.)
An hour
after Adefila arrived there, Moore called her and directed that
she
leave
Select’s
premises
immediately;
Moore
reported
that
Select had called and said it did not want her treating their
patients because she (Adefila) had worked there, been fired, and
filed an EEOC charge against Select.
26-1.)
(Adefila Dep. at 19, Doc.
Adefila went to Moore at ARMC, where Moore repeated the
information reported by Select and, according to Adefila, said, “I
cannot have you work here anymore.
You have a charge out there.”
(Id. at 20.) Moore was disappointed that Adefila had not disclosed
her prior employment with Select in her application or during her
interview and told Adefila she had been “dishonest”; Adefila
responded that she did not disclose the employment because she
“knew” that, if she had been truthful, Moore would not have hired
3
Adefila’s EEOC charge was still outstanding at the time of her
application and interview with DaVita. (Adefila Dep. at 8.) She later
filed an action against Select in this court, asserting claims under
Title VII of the Civil Rights Act and the Americans with Disabilities
Act. Her lawsuit was dismissed on Select’s motion for summary judgment,
with costs taxed against Adefila. Adefila v. Select Specialty Hospital,
___ F. Supp. 2d ___, No. 1:13cv68, 2014 WL 2882931 (M.D.N.C. June 25,
2014); Adefila v. Select Specialty Hospital, No. 1:13cv68 (M.D.N.C.
Nov. 6, 2014).
3
her.
(Id. at 21.)
Adefila pleaded with Moore not to fire her,
and Moore said she would have to talk with her boss but directed
Adefila to come back the next day.
(Id. at 22-23.)
Moore did not
fire Adefila, but told her to report for orientation at ARMC.
(Id.
at 22-24.)
The next day, Adefila reported to ARMC, another DaVita client.
(Id. at 22-25.)
ARMC’s employee, Olivia Rogers, performed a pre-
employment assessment on Adefila, which ARMC required of all new
workers at ARMC and for employees of businesses like DaVita that
assign employees to work at ARMC.
4.)
(Doc. 26-4 (Rogers Decl.) ¶¶ 3–
ARMC does not permit anyone who has failed the assessment to
work for it. (Doc. 26-3 (Fitts Decl.) ¶ 3.) During the assessment,
Rogers asked Adefila to complete a number of forms, which took
Adefila an hour to do even though it should have taken only fifteen
minutes.
(Rogers Decl. ¶ 5.)
Adefila was also given a mask test
and, although she had worn respiratory masks for twenty years, she
failed three times because she kept touching the mask after the
test had begun, contrary to Rogers’ express instructions.
¶ 6; Adefila Dep. at 26, Doc. 26-1.)
(Id.
Adefila was also very slow
in responding to questions, failed to follow a simple command to
wait in the exam room, and did not understand Rogers’ statement
that she would take her to the lab for blood work.
¶ 7.)
(Adefila Aff.
against
Based on her interactions with Adefila, Rogers recommended
employing
Adefila
and
4
so
informed
ARMC
Employee
Partnership Specialist Sonya Fitts.
2; Fitts Decl. ¶ 4.)
had
made
an
(Rogers Decl. ¶ 8 & Exs. 1–
At the time, Rogers did not know that Adefila
employment
discrimination
charge
against
Select.
(Rogers Decl. ¶ 9.)
On October 30, 2012, not knowing she had failed the health
assessment, Adefila reported to a dialysis center in Burlington.
(Compl. ¶ 12. 4)
The technician with whom she worked would not
explain how to do her work.
(Id.)
Adefila reports that when she
asked why, the technician responded, “I don’t have to tell you or
show you nothing because there is a reason why you were sent here
as against working in the unit you were hired for.”
(Id.)
Adefila
worked at that unit for two days before she again met with Moore.
(Id. ¶ 13.)
Fitts called Moore and informed her that Adefila had failed
her assessment and was not cleared to work at ARMC.
¶ 5.)
(Fitts Decl.
When Fitts relayed this message, she did not know that
Adefila had filed an employment discrimination charge against
Select.
(Id. ¶ 6.)
On November 5, 2012, Moore met with Adefila and informed her
that she was not cleared to work at ARMC because ARMC would not
let her work with its patients.
1.)
(Adefila Dep. at 31, 33, Doc. 26-
Adefila reports that Moore told her, “you are not doing well,”
4
Although when Adefila originally filed her complaint it was unverified,
she has since verified it. (See Adefila Aff. ¶ 1.)
5
“I cannot have you anymore,” and that Moore “was terminating [her]
employment,” but Moore advised her that she could apply for a
different position with DaVita and gave her two to three weeks to
do so.
(Id. at 30, 35, and 38; Adefila Dep. at 18–21, Doc. 33-1;
Moore Decl. ¶ 17; Adefila Decl. ¶ 7.)
According to Adefila,
although Moore told her she had two to three weeks to re-apply for
a DaVita position,
I didn’t understand what [Moore] meant, and I didn’t
want to sit there, argue with her, and be walked out by
a police or security. I wasn’t going to go through all
that crap. So all I said was, You recommend me? Am I
applying? And she said yes, and I just got up, Thank
you, and walked out. I didn’t have time to be treated
like trash.
(Adefila Dep. at 21, Doc. 33-1.)
After this meeting, however,
Adefila “never” applied for another position with DaVita. (Adefila
Dep. at 21, Doc. 33-1; Moore Decl. ¶ 18.)
terminated “on or about November 5, 2012.”
Adefila claims she was
(Adefila Decl. ¶ 7.)
DaVita claims that it fired Moore effective November 25, 2012,
after her period to re-apply for a position had passed, based on
four alleged reasons:
[1] the fact that Select had refused to allow Ms.
Adefila to work at its hospital, [2] the fact that Ms.
Adefila had omitted her prior employment by Select on
her DaVita employment application, [3] the fact that
Ms. Adefila failed the ARMC assessment and so she would
not be permitted to work at that hospital, and [4] based
upon Ms. Adefila’s failure to identify any other vacant
position at DaVita that she was qualified to perform.
(Moore Decl. ¶¶ 18, 19.)
6
On December 17, 2012, Adefila filed a charge of discrimination
against DaVita with the EEOC, alleging that she was fired for
having filed an EEOC charge of discrimination against Select, her
former employer.
(Adefila Dep. Ex. 8, Doc. 26-1.)
On August 9,
2013, the EEOC dismissed the charge, issued Adefila a right to sue
letter, and concluded that the EEOC could not determine that DaVita
had violated any statute.
(Id.)
On October 23, 2013, Adefila, proceeding pro se, filed the
present action, claiming discriminatory retaliation under Title
VII of the Civil Rights Act of 1964.
Having completed discovery,
DaVita moves for summary judgment (Doc. 26); Adefila has responded,
now by counsel (Doc. 31); and DaVita has replied (Doc. 33).
The
motion is ready for resolution.
II.
ANALYSIS
A.
Standard of Review
A court must grant a motion for 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.”
Fed. R. Civ. P. 56(a).
The moving party bears the burden of
establishing that no genuine dispute of material fact remains.
Where, as here, the non-moving party has the burden of proof, the
moving party is entitled to summary judgment if it demonstrates
that the non-moving party’s evidence is insufficient to establish
an essential element of her claim.
7
Celotex Corp. v. Catrett, 477
U.S. 317, 322-23, 325 (1986).
For the purposes of this motion,
the court regards Adefila’s statements as true and draws all
inferences in her favor.
U.S. 242, 255 (1986).
Anderson v. Liberty Lobby, Inc., 477
But she must establish more than the “mere
existence of a scintilla of evidence” to support her position.
Id. at 252.
If the evidence is “merely colorable, or is not
significantly probative, summary judgment may be granted.”
249–50.
Ultimately, summary judgment is appropriate where the
non-movant
fails
to
offer
reasonably find for her.
B.
Id. at
evidence
on
which
the
jury
could
Id. at 252.
What Documentary Evidence May Be Considered
Summary judgment allows the court “to forecast the proof at
trial to determine whether consequential facts are in dispute, and
if not, to resolve the case without a trial.”
Mitchell v. Data
Gen. Corp., 12 F.3d 1310, 1316 (4th Cir. 1993), modified on other
grounds by Stokes v. Westinghouse Savannah River Co., 206 F.3d 420
(4th Cir. 2000).
But the proof that may be considered in that
forecast is not unlimited. In its reply brief, DaVita has objected
to several pieces of evidence relied upon by Adefila to show a
genuine dispute of material fact.
Although Adefila had a right to
file a surreply to address these evidentiary objections, see LR
7.6; Luna-Reyes v. RFI Const., LLC, No. 1:14CV235, ___ F. Supp. 3d
___, 2014 WL 5531354, at *2 (M.D.N.C. Nov. 3, 2014), she has not
elected to do so.
The court will now consider DaVita’s arguments
8
in turn.
1.
Sham Affidavit Rule
First, DaVita objects to reliance on statements in Adefila’s
affidavit
it
testimony.
contends
are
(Doc. 33 at 1.)
inconsistent
with
her
deposition
Adefila’s deposition was taken by
counsel for DaVita, apparently while Adefila was still proceeding
pro se.
After DaVita served its motion for summary judgment,
Adefila has responded to the motion, through counsel, with an
affidavit executed by her.
DaVita’s argument rests on the sham affidavit rule.
This
rule prohibits a party from creating a genuine issue of material
fact
by
relying
on
an
affidavit
created
after
the
party’s
deposition has already been taken, when the affidavit is materially
inconsistent with the deposition testimony.
The rule acknowledges
that “prior depositions are more reliable than affidavits” and
that affidavits “are usually drafted by counsel, whose familiarity
with summary judgment procedure may render an affidavit less
credible.”
Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247,
253 (3d Cir. 2007).
The rule has its genesis in a Second Circuit
case from 1969, Perma Research & Dev. Co. v. Singer Co., 410 F.2d
572 (2d Cir. 1969), and the general approach has found approval
with virtually every federal circuit, as well as the Supreme Court,
see Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999);
Jiminez, 503 F.3d at 252 (collecting circuit court cases).
9
The Fourth Circuit has articulated a version of the sham
affidavit rule, explaining that “[a] genuine issue of material
fact is not created where the only issue of fact is to determine
which of the two conflicting versions of the plaintiff’s testimony
is correct.”
Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th
Cir. 1984) (citing Radobenko v. Automated Equipment Co., 520 F.2d
540, 544 (9th Cir. 1975)).
In Barwick, the Fourth Circuit also
quoted and approved of the rule as set out in Perma Research:
“If
a party who has been examined at length on deposition could raise
an issue of fact simply by submitting an affidavit contradicting
his own prior testimony, this would greatly diminish the utility
of summary judgment as a procedure for screening out sham issues
of fact.”
First,
Id. (quoting Perma Research, 410 F.2d at 578).
DaVita
moves
to
strike
statements
in
Adefila’s
affidavit that have no analogues in the deposition, under the
theory that Adefila had the opportunity to make these statements
at her deposition and explicitly or implicitly declined to do so.
(Doc. 33 at 2.) 5
given
the
facts
The court declines to strike these statements
of
this
case.
As
the
Second
Circuit,
the
progenitor of the sham affidavit rule, has held, when a deponent
5
DaVita relies on the following colloquy during Adefila’s deposition,
at which she appeared pro se:
Q.
. . . Have you told me everything that you think supports
your claims?
A.
Yes.
(Adefila Dep. at 27, Doc. 33-1.)
10
was not represented by counsel at the deposition, statements in a
subsequent affidavit should only be considered a sham when they
are “directly contradictory,” not when they are only “arguably
contradictory.”
Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 620
(2d Cir. 1996); see also id. (“In short, defense counsel did not
ask questions at the first deposition sufficient to elicit the
specific content of the conversation between Hayes, Grillo and
Tillman at the February 12, 1989 meeting. . . .
As a result, we
cannot conclude that the two depositions are contradictory without
drawing an improper inference as to [plaintiff’s] credibility.”
(emphasis added)).
DaVita has specifically requested that the court disregard
the parts of Adefila’s affidavit stating that her work was “overly
critiqued” and that the mask test was a “sham.”
¶¶ 5–6.)
(Adefila Aff.
These statements, although they will be disregarded for
other reasons, see infra Part II.B.3, will not be disregarded under
the sham affidavit rule because they concern issues not explicitly
broached by defense counsel during Adefila’s deposition and do not
“directly contradict” her deposition testimony.
Second, by contrast, several of the statements in Adefila’s
affidavit do directly contradict her earlier deposition testimony.
In her affidavit, Adefila states that she did not fail the mask
test at ARMC (Adefila Aff. ¶ 6); but in her deposition, she
admitted that she failed the mask test (Adefila Dep. at 12, Doc.
11
33-1).
These statements are in direct contradiction, so her
affidavit statement to this effect will be disregarded for this
summary judgment motion.
Similarly, in her affidavit, Adefila states that she did not
reapply for other positions because she was not qualified for any
of
them
(Adefila
Aff.
¶
7);
but
in
her
deposition,
Adefila
confessed that she had “never” looked for another job with DaVita
(Adefila Dep. at 18–21, Doc. 33-1).
Even under more generous
articulations of the sham affidavit rule, litigants must explain
subsequent inconsistent statements in an affidavit in order to
avoid the rule.
See Jiminez, 503 F.3d at 254 (“We have also held
that an affiant has the opportunity to offer a ‘satisfactory
explanation’ for the conflict between the prior deposition and the
affidavit. When a party does not explain the contradiction between
a subsequent affidavit and a prior deposition, it is appropriate
for the district court to disregard the subsequent affidavit and
the alleged factual issue in dispute as a ‘sham,’ therefore not
creating an impediment to a grant of summary judgment based on the
deposition.”
(citation omitted)).
inconsistency.
Adefila has not explained this
Therefore, the court will disregard Adefila’s
statement that she was not qualified for any other position at
DaVita. 6
6
Alternatively, the affidavit statement could be disregarded for
failing to make a statement based on personal knowledge, as required by
12
2.
DaVita
North Carolina
Decision
argues
that
the
Division
court
of
must
Employment
disregard
Security
Adefila’s
submission of a decision by the North Carolina Department of
Commerce Division of Employment Security that concluded that she
is not disqualified from receiving benefits.
Adefila Aff. at 6; Doc. 1-2.)
(Doc. 33 at 3;
DaVita cites N.C. Gen. Stat. § 96-
4(x)(8), which prohibits the admission of any “finding of fact or
law, judgment, determination, conclusion or final order” by the
Division of Employment Security in any proceeding before a “court
or judge of [North Carolina] or the United States.”
Adefila has
not offered any reason why the evidence is admissible.
At summary judgment, parties can only rely on proof that would
be admissible under the rules of evidence.
56(c)(1)(B), 56(c)(2).
Fed. R. Civ. P.
Although state statutory privileges do not
automatically apply to federal claims in federal court, they can
apply when an asserted federal interest is outweighed by “a state’s
policy reasons for crafting a legislative privilege and . . .
reasons of comity.”
Hartsell v. Duplex Products, Inc., 895 F.
Supp. 100, 102 (W.D.N.C. 1995) (citing United States v. Cartledge,
928 F.2d 93, 96 (4th Cir. 1991)), aff’d, 123 F.3d 766 (4th Cir.
1997).
On multiple occasions, federal courts have held that N.C.
Federal Rule of Civil Procedure 56(c)(4). Since Adefila did not look
at any of DaVita’s open job postings, she could not have known whether
she qualified for any of them.
13
Gen. Stat. § 96-4(x)(8) represents weighty enough interests to
warrant exclusion of evidence on a motion for summary judgment.
See Rudolph v. Buncombe Cnty. Gov’t, 846 F. Supp. 2d 461, 466 &
n.2 (W.D.N.C. 2012), aff’d, 474 F. App’x 931 (4th Cir. 2012); Smith
v. Computer Task Group, Inc., 568 F. Supp. 2d 603, 610-11 (M.D.N.C.
2008) (excluding Employment Security Commission decision under
prior codification at N.C. Gen. Stat. § 96-4(t)(8)); Stroud v.
Tyco Electrs., 438 F. Supp. 2d 597, 600 & n.2 (M.D.N.C. 2006);
Hartsell, 895 F. Supp. at 103.
Thus, the Employment Security
decision will not be considered for purposes of this motion.
3.
Other Challenges to Adefila’s Affidavits
DaVita argues that various parts of Adefila’s affidavits must
be disregarded under Federal Rule of Civil Procedure 56(c)(4),
which requires that affidavits supporting or opposing a motion for
summary judgment “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.”
Under
this rule, summary judgment affidavits that are conclusory or based
upon hearsay shall not be considered. Evans v. Techs. Applications
& Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996).
More specifically,
a plaintiff’s “[c]onclusory assertions” about an employer’s “state
of mind and motivation” do not create a genuine dispute of material
fact sufficient “to withstand summary judgment.”
Green & Co., 836 F.2d 845, 848 (4th Cir. 1988).
14
Goldberg v. B.
Adefila has essentially presented two affidavits to support
her argument that there is a genuine dispute of material fact.
The first is her affidavit presented in opposition to summary
judgment.
Several parts of this affidavit are inadmissible, being
either conclusory or opinions of others’ states of mind — or both.
For example, the court will disregard Adefila’s statement that,
“[a]lthough [Moore] did not immediately fire me, her attitude, as
well as the attitude of others, towards me changed since they
learned that I had filed a complaint against my former employer.”
(Adefila Aff. ¶ 5.)
These are opinions, unsupported by fact, of
DaVita’s employees’ states of mind, which Adefila aims to impute
to DaVita.
Likewise, the court disregards Adefila’s contention
that “Rogers created an unorthodox ‘mask test’ for the sole purpose
of failing me.
My orientation and training was a sham, as if they
all knew that I would be terminated shortly.”
(Id. ¶ 6.)
To the
extent this contention is offered as an opinion of another’s state
of mind (e.g., that the sole purpose was to fail Adefila, that the
orientation and training was a sham, and the implication that
everyone
knew
she
would
be
terminated
shortly),
it
will
be
disregarded.
Adefila’s
second
affidavit
is
essentially
her
complaint.
While a non-movant on summary judgment ordinarily cannot rely on
matters pleaded in a complaint, a verified complaint “is the
equivalent of an opposing affidavit for summary judgment purposes,
15
when the allegations contained therein are based on personal
knowledge.”
1991).
Williams v. Griffin, 952 F.2d 820, 823 (4th Cir.
Adefila purports to convert her original complaint into a
verified
one
affidavit.
through
the
first
paragraph
of
her
subsequent
(Adefila Aff. ¶ 1 (“As the Plaintiff, I have read the
Complaint filed pro se in this matter and the allegations contained
therein, to the best of my knowledge, are true.”).)
no objection to this technique.
DaVita lodges
To the extent the allegations in
the complaint comply with the rules for affidavits explained above
(and many of its allegations are redundant with those in the
affidavit), they have been considered in this motion for summary
judgment.
C.
Title VII and the Prima Facie Case
Title VII of the Civil Rights Act of 1964 prohibits employers
from discriminating against employees on the basis of sex, race,
color, national origin, and religion. Title VII not only prohibits
such discrimination, but also retaliation by an employer against
an employee who has made a “charge” of discrimination under Title
VII — so-called “participation” activity.
42 U.S.C. § 2000e-3;
Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 259
(4th Cir. 1998) (“An employer may not retaliate against an employee
for participating in an ongoing investigation or proceeding under
Title VII . . . .”).
Neither
party
argues
that
16
there
is
direct
evidence
of
retaliation; instead, each relies on the burden-shifting framework
of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which
applies to retaliation claims. Karpel v. Inova Health Sys. Servs.,
134 F.3d 1222, 1228 (4th Cir. 1998) (citing Ross v. Commc’ns
Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985)).
framework,
a
demonstrating
plaintiff
three
establishes
elements:
“(1)
a
she
prima
Under this
facie
engaged
in
case
by
protected
activity, (2) the employer took adverse action, and (3) there was
a causal connection between the two.”
Id.
In this case, only the
third, causal element of the prima facie case is disputed.
31 at 5; Doc. 33 at 4.)
(Doc.
The particular dispute is just how strict
a “causal connection” is required for the prima facie case.
In 2013, the Supreme Court held that “Title VII retaliation
claims must be proved according to traditional principles of butfor causation, not the lessened causation test stated in [42
U.S.C.] § 2000e–2(m).
This requires proof that the unlawful
retaliation would not have occurred in the absence of the alleged
wrongful action or actions of the employer.”
Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013).
DaVita argues
that, post-Nassar, the “causal connection” required for the prima
facie case is “but-for” causation.
not mention Nassar.
(Doc. 33 at 3.)
Adefila does
(See Doc. 31 at 6.)
The Fourth Circuit has not yet addressed Nassar in a published
opinion, but it has commented on the case in several unpublished
17
opinions. 7
For example, it has noted that Nassar runs contrary to
the circuit’s earlier precedent, which had only required proof
that the employee’s engagement in a protected activity was a
“motivating factor” for the adverse employment action.
See EEOC
v. A.C. Widenhouse, Inc., 576 F. App’x 227, 229–31 (4th Cir. 2014).
It has also noted that “temporal proximity alone” cannot meet the
but-for causation standard established by Nassar.
Staley v.
Gruenberg, 575 F. App’x 153, 156 (4th Cir. 2014) (citing Hernandez
v. Yellow Transp., Inc., 670 F.3d 644, 660 (5th Cir. 2012).
The
Fourth Circuit has further suggested that, after Nassar, the
employee carries the ultimate burden of showing but-for causation
“[t]hroughout”
the
burden-shifting
process.
Rome
v.
Dev.
Alternatives, Inc., No. 13-1935, 2014 WL 5013020, at *1 (4th Cir.
Oct. 8, 2014); accord Felt v. MEI Technologies, Inc., No. 14-1079,
2014 WL 4978583, at *1 (4th Cir. Oct. 7, 2014); Bell v. Shinseki,
No. 13-1890, 2014 WL 4555250, at *1 (4th Cir. Sept. 16, 2014).
The district courts in this circuit are not in agreement on
the application of Nassar, with some requiring but-for causation
at the prima facie stage and others requiring it only at the
pretext stage.
See Cade v. Astrue, No. 2:11-CV-03498-PMD-BM, 2014
7
Unpublished opinions of the Fourth Circuit are not precedential. See
Collins v. Pond Creek Mining Co., 468 F.3d 213, 219 (4th Cir. 2006)
(recognizing that “we ordinarily do not accord precedential value to our
unpublished decisions” and that such decisions “are entitled only to the
weight they generate by the persuasiveness of their reasoning” (citation
omitted)).
18
WL 4635568, at *4 n.5 (D.S.C. Sept. 15, 2014).
noted the disagreement before.
This court has
See Castonguay v. Long Term Care
Mgmt. Servs., LLC, No. 1:11CV682, 2014 WL 1757308, at *7 n.16
(M.D.N.C. Apr. 30, 2014).
As in Castonguay, however, it is not
necessary to resolve the issue in this case.
That is because, for
the reasons that follow, even assuming that Adefila can meet her
initial burden of proving a “causal connection,” she fails to show
but-for causation at the pretext stage.
D.
DaVita’s Legitimate,
Terminating Adefila
Non-Discriminatory
Reasons
for
When a plaintiff establishes her prima facie case, the burden
then
shifts
to
the
employer
“to
produce
nondiscriminatory reason for the adverse action.”
a
legitimate
Karpel, 134
F.3d at 1228.
DaVita offers a legitimate, non-discriminatory reason for
firing Adefila; among its reasons:
Adefila was rejected from
working at ARMC by ARMC, one of the specific clients Adefila was
hired to service, and Adefila did not apply for other positions
with DaVita.
(Moore Aff. ¶¶ 12–17; Doc. 33 at 6.)
Although
Adefila challenges the reason as pretextual, she offers no argument
that it was an illegitimate reason for terminating her.
31 at 6–7.)
(See Doc.
Therefore, DaVita has met its burden of production at
this point.
19
E.
Adefila’s Proof of Pretext
Once an employer produces a legitimate, nondiscriminatory
reason for the adverse action, the burden shifts to the plaintiff
to
show
that
“the
employer’s
reason
was
mere
pretext
for
retaliation by showing ‘both that the reason was false and that
discrimination was the real reason for the challenged conduct.’”
Smith v. First Union Nat. Bank, 202 F.3d 234, 248 (4th Cir. 2000)
(emphasis
added)
“ultimate,”
(quoting
rather
than
Jiminez,
57
F.3d
intermediate,
at
burden
377–78).
of
The
persuasion
throughout this burden-shifting framework rests on Adefila to
prove intentional retaliation.
Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981).
And, in particular, Adefila
must ultimately prove that, but for filing her charge against
Select Specialty, DaVita would not have fired her.
Nassar, 133 S.
Ct. at 2534. If Adefila is successful, intentional, discriminatory
retaliation may be inferred, and her claim may proceed to trial.
Jiminez, 57 F.3d at 378.
Adefila
argues
that
assessment was pretextual.
DaVita’s
reliance
(Doc. 31 at 7.)
on
ARMC’s
health
Specifically, Adefila
argues that DaVita subjected her to “sham training and testing
procedures,” designed to ensure her failure, a trap that she could
not evade.
(Id.)
However, there is simply no admissible evidence
that her training and testing were a sham.
Adefila, in her post-deposition declaration, does opine that
20
Rogers’ mask test was “unorthodox” and concludes that it was a
“sham” pretext for terminating her.
(Adefila Aff. ¶ 6.)
But such
a conclusory opinion is not a “fact” for purposes of the burdenshifting framework or the requirements of Rule 56(c).
See Causey
v. Balog, 162 F.3d 795, 801 (4th Cir. 1998) (holding that a party’s
“conclusory allegations” are “insufficient to support a finding of
pretext”).
Adefila’s case does not fail on this point alone.
Even
assuming ARMC’s mask test was a sham, the undisputed evidence shows
that no one at ARMC had any knowledge of Adefila’s EEOC charge
against Select when she failed the health assessment.
Decl. ¶ 9; Fitts Decl. ¶ 6.)
(Rogers
Moreover, ARMC, like Select, had a
contractual right “to refuse to accept any employee that DaVita
assigns to perform to work on [its] premises.”
Adefila Dep. at 36, Doc. 26-1.)
(Moore Decl. ¶ 4;
There is no evidence that DaVita
requested or even suggested that ARMC fail Adefila.
ARMC’s
health
assessment
suffered
from
some
And even if
professional
deficiency, it is not the province of the court to question the
wisdom of the mask test, so long as Adefila’s failure of the test
“truly was the reason for [her] termination.”
Hawkins v. PepsiCo,
Inc., 203 F.3d 274, 279 (4th Cir. 2000); see also Anderson v.
Westinghouse Savannah River Co., 406 F.3d 248, 272 (4th Cir. 2005)
(“We do not sit as a ‘super-personnel department weighing the
prudence
of
employment
decisions’
21
made
by
the
defendants.”
(quoting DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir.
1998))).
Adefila’s only counter-argument is that “[b]oth parties agree
that Moore, DaVita’s representative, wanted to fire Adefina [sic]
immediately upon learning of the complaint against Select.”
31 at 8.)
(Doc.
In fact, DaVita has not made this concession, (Doc. 33
at 5), and Adefila points to no part of the record evidencing such
a fact. 8
Rather, DaVita simply noted that for purposes of its
motion for summary judgment, the court must accept Adefila’s
admissible testimony as true.
(Doc. 33 at 5.)
8
However, Adefila’s
While the court need not scour the record for support for bare
statements, see Local Rule 7.2(a)(2), the only conceivable basis for
this contention is Adefila’s statement that Moore “told me that I could
no longer work at DaVita because I had filed a complaint against Select
Hospital. Essentially, she said DaVita could not have me as an employee
‘with charges out there.’” (Adefila Aff. ¶ 5; accord Compl. ¶ 7.) If
this is Adefila’s intended support, it does not suffice.
To be sure, DaVita could not force Select to allow Adefila to work
for it, “with charges out there” or not, because Select had a contractual
right to refuse Adefila’s services. (Adefila Dep. at 36, Doc. 26-1.)
Moreover, even after Select rejected Adefila, Moore arranged for Adefila
to work at another DaVita client, ARMC, rather than to terminate her.
Yet, Adefila was also rejected by ARMC, which, like Select, had a
contractual right to do so. Adefila’s contention that the ARMC testing
was a “sham” is purely speculative on this record, unsupported by any
facts after discovery has closed.
And even after ARMC rejected her,
Adefila testified in her deposition, Moore invited her to apply for other
open positions with DaVita and gave her two to three weeks to do so.
(Adefila Dep. at 38, 42, Doc. 26-1; Adefila Dep. at 18–21, Doc. 33-1.)
But Adefila never did. (Adefila Dep. at 38, 42, Doc. 26-1.) Moore’s
statement, on this record and in the light most favorable to Adefila,
is evidence of a motivating factor behind Adefila’s termination. But
in light of undisputed evidence that DaVita continued to employ Adefila
after Moore’s alleged statement, that Moore sent Adefila to ARMC for
work, Adefila’s failure to demonstrate that DaVita had any other position
for her, and DaVita’s legitimate business reasons for firing Adefila
(including dishonesty and rejection by Select and ARMC), no reasonable
jury could find that, but for Adefila’s participation in her EEOC charge
against Select, DaVita would not have fired Adefila.
22
accusation that Moore “wanted” to fire her is nothing more than a
“conclusory assertion” about her employer’s state of mind and
motivation, which is “not enough to withstand summary judgment.”
Goldberg, 836 F.2d at 848.
At this final point in the burden-shifting framework, Adefila
fails to carry her burden, not even providing the “mere existence
of a scintilla of evidence” to support her position.
Anderson,
477 U.S. at 252. Accordingly, DaVita’s motion for summary judgment
will be granted.
III. CONCLUSION
For the reasons stated,
IT IS THEREFORE ORDERED that DaVita’s motion for summary
judgment (Doc. 26) is GRANTED, and this case is DISMISSED WITH
PREJUDICE.
/s/
Thomas D. Schroeder
United States District Judge
January 20, 2015
23
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