Johnson v. The Sunshine House, Inc.

Filing 70

ORDER granting in part and denying in part 57 Motion for Summary Judgment. Signed by District Judge Max O. Cogburn, Jr on 5/28/2013. (eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:11-cv-00511-MOC-DCK
RHAE JOHNSON,

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Plaintiff,
Vs.
THE SUNSHINE HOUSE, INC.,
Defendant.

ORDER

THIS MATTER is before the court on defendant’s Motion for Summary Judgment. In
considering such motion, the court has carefully reviewed plaintiff’s response, defendant’s reply,
and conducted a hearing. While defendant argued at the hearing that plaintiff did virtually no
discovery and cannot make out a prima facie case of race-based discrimination, and could not
rebut the legitimate business reason given for her termination, plaintiff has submitted some
evidentiary materials (#64-1 through 7) that indicate that there are genuine issues of material fact
that remain for trial on the Title VII claim. In particular, plaintiff has provided some evidence
that the reason given for her termination was false and that another similarly situated employee
not within the protected class was treated more favorably. As to the retaliation claim, plaintiff
failed to respond to the Motion for Summary Judgment and that claim will be dismissed as there
is no evidence that defendant retaliated against her for any “whistleblowing activity.”
Summary judgment shall be granted “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A factual dispute is genuine “if the evidence is such that a reasonable jury could return a

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verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A fact is material only if it might affect the outcome of the suit under governing law. Id.
The movant has the “initial responsibility of informing the district court of the basis for
its motion, and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (internal citations omitted). Once this initial burden is met, the burden shifts to
the nonmoving party. That party “must set forth specific facts showing that there is a genuine
issue for trial.” Id. at 322 n.3. The nonmoving party may not rely upon mere allegations or
denials of allegations in his pleadings to defeat a motion for summary judgment. Id. at 324.
Instead, that party must present sufficient evidence from which “a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248; accord Sylvia Dev. Corp. v.
Calvert Cnty., Md., 48 F.3d 810, 818 (4th Cir. 1995). When ruling on a summary judgment
motion, a court must view the evidence and any inferences from the evidence in the light most
favorable to the nonmoving party. Anderson, 477 U.S. at 255. “‘Where the record taken as a
whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine
issue for trial.’” Ricci v. DeStefano, 129 S. Ct. 2658, 2677 (2009) (quoting Matsushita v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)).
Plaintiff alleges that defendant fired her because of her race in violation of Title VII of
the Civil Rights Act of 1964, and, implicitly, 42 U.S.C. § 1981. The elements of proving racial
discrimination are the same under Title VII and Section 1981. See Spriggs v. Diamond Auto
Glass, 242 F.3d 179, 184 (4th Cir. 2001) (Title VII and section 1981 share common elements).
Where, as here, Plaintiff lacks any direct evidence of racial discrimination, the court must

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analyze her claim under the burden-shifting framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-05 (1973). Bonds v. Leavitt, 629 F.3d 369, 386 (4th Cir. 2011). Read in a
light most favorable to plaintiff, this is a disparate discipline case.
To establish a prima facie case of racial discrimination in the enforcement of employee
disciplinary measures under Title VII, the plaintiff must show: (1) that she is a member of the
class protected by Title VII, (2) that the prohibited conduct in which she engaged was
comparable in seriousness to misconduct of employees outside the protected class, and (3) that
the disciplinary measures enforced against her were more severe than those enforced against
those other employees. Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir. 1993). Here,
the allegedly disparate discipline was plaintiff’s firing.1
In its reply, defendant has, quite properly, pointed to a number of deficiencies in the
evidence plaintiff has presented in her response, arguing in the main that plaintiff has not
produced sufficient evidence that the comparator was similarly situated to her in the continuum
of the defendant’s disciplinary process.

In determining whether a plaintiff's misconduct is

comparable in seriousness to that of a comparator, the Court of Appeals for the Fourth Circuit
has held that trial courts should consider “the gravity of the offenses on a relative scale,”
comparing “the harm caused or threatened to the victim or society, and the culpability of the
offender.” Moore v. City of Charlotte, 745 F.2d 1100, 1107 (4th Cir.1985) (quoting Solem v.
Helm, 463 U.S. 277 (1983)). Precise similarity between the compared offenses is not required.
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The Fourth Circuit has held that the prima facie case in discriminatory termination
suits requires the plaintiff to show: (1) she is a member of a protected class; (2) she suffered
adverse employment action; (3) she was performing her job duties at a level that met her
employer's legitimate expectations at the time of the adverse employment action; and (4) the
position remained open or was filled by similarly qualified applicants outside the protected class.
Miles v. Dell, Inc., 429 F.3d 480, 485 (4th Cir. 2005); see also Holland v. Washington Homes,
Inc., 487 F.3d 208, 214 (4th Cir. 2007).
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Cook, 988 F.2d at 511 (holding that “the comparison will never involve precisely the same set
of work-related offenses occurring over the same period of time and under the same sets of
circumstances.”). In every case, however, “[t]he similarity between comparators and the
seriousness of their respective offenses, must be clearly established in order to be meaningful.”
Lightner v. City of Wilmington, 545 F.3d 260, 265 (4th Cir.2008). In this case, plaintiff has
presented some evidence that the comparator purportedly committed similarly serious offenses,
to wit, failing to change diapers.
The court will deny the Motion for Summary Judgment as to the Title VII claim, but will
reserve evidentiary issues concerning comparators until trial.

Plaintiff is advised that her

projected evidence, while sufficient to survive summary judgment, may not be sufficient to avoid
a directed verdict.

ORDER
IT IS, THEREFORE, ORDERED defendant’s Motion for Summary Judgment (#57) is
GRANTED as to the Second Cause of action for retaliation, and DENIED as to plaintiff’s First
Cause of Action under Title VII and Section 1981.
Signed: May 28, 2013

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