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")
Select is a long-term acute care hospital that provides treatment to patients with chronic diseases or complex medical conditions. During the relevant period, Robin Clark was Select's Chief Nursing Officer. (Clark Declaration ("Clark Decl."), Doc. 31-1 ¶¶ 3-4.) Clark hired Adefila as a full-time registered nurse ("RN") on May 16, 2012. (Id. ¶ 7; Adefila Deposition ("Adefila Dep."), Doc. 31-5 at 61.) As an RN, Adefila's job duties included evaluating patients and assuring the implementation of each patient's "individual nursing plan." (Clark Decl. ¶ 8.) Adefila was required to conform to Select's "Model Nursing Practices and Procedures" (the "Model Practices"),
According to several Select employees, during her short term of employment
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." (Clark Decl. ¶ 32; Adefila Dep. at 61.) Adefila testified that Clark told her she was being terminated because she left medications in a patient's room unattended. (Adefila Dep. at 62.) On July 1, Adefila wrote a letter to Select's Chief Executive Officer, Deana Knight, requesting reconsideration of the termination decision. (Doc. 34 at 9; Knight Declaration ("Knight Decl."), Doc. 31-2 ¶¶ 3, 5.) In the letter, Adefila defended her performance, attributed her issues at work to 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. (Doc. 34 at 12; Adefila Dep. at 43.) DaVita provides dialysis service to several facilities, including to Select's patients at Select's hospital facility. (Clark Decl. ¶ 37.) While at DaVita, Adefila was assigned to Alamance Regional Medical Center ("Alamance"). (Adefila Dep. at 44.) On October 24, she reported to Select as part of her duties with DaVita. (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. (Id.) Adefila was then sent home. (Adefila Dep. at 49-50.)
Adefila filed a charge of discrimination with the EEOC on August 16, 2012. She alleged discrimination based on her national origin, race, and disability. (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.) She then initiated this suit on January 28, 2013. (Doc. 2.) 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. (Doc. 21.)
Select now moves for summary judgment on all claims. (Doc. 30.) Adefila responded (Doc. 34), and Select replied (Doc. 36).
"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." Fed.R.Civ.P. 56(a). The moving party bears the 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. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "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. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983)). 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 v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). But a non-moving party must establish more than the "mere existence of a scintilla of evidence" to support his position. Id. at 252, 106 S.Ct. 2505.
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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Karpel v. Inova Health Sys. Servs., 134 F.3d 1222, 1228 (4th Cir. 1998). Because Adefila has proffered no direct evidence of discrimination in this case,
ADA claims are also evaluated under the burden-shifting framework. 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 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 absent-minded, unable to present her reports clearly, failed to prioritize work over her personal break time, needed constant reminders to perform her job duties, and was resistant to following the Model Practices. 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.
Without direct evidence, retaliation claims are also analyzed under the McDonnell Douglas framework. Karpel, 134 F.3d at 1228. 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. Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 410 (4th Cir.2013). Adefila's retaliation theory is that Clark 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. Therefore, she cannot satisfy the causation requirement. 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 Select informed DaVita that she had filed an EEOC charge. (Adefila Dep. at 28-29.) This evidence is inadmissible hearsay that the court cannot consider in opposition to a summary judgment motion. See Greensboro Prof'l Fire Fighters 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. United States v. Portsmouth Paving Corp., 694 F.2d 312, 321 (4th Cir.1982). Thus, this evidence is insufficient to show that DaVita had knowledge of the EEOC charge. Adefila's retaliation claim must fail.
Finally, Adefila alleges that she was subjected to a hostile work environment while employed by Select. 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. 8-1 at 5), and Jackson, an African-American immigrant from Sierra
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 unreasonably interferes with an employee's work performance." Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (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. Harris, 510 U.S. at 21-22, 114 S.Ct. 367. An objectively hostile work environment is one "that a reasonable person would find hostile or abusive." Id. at 21, 114 S.Ct. 367. "Whether the harassment is objectively severe or pervasive is judged from the perspective of a reasonable person in the plaintiff's position." Williams, 457 F.Supp.2d at 608 (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (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. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)). As such, it "does not provide a remedy for every instance of verbal or physical harassment in the workplace." 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." EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir.2008). "[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Id. (quoting Faragher, 524 U.S. at 788, 118 S.Ct. 2275). 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 Adefila's work performance.
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.