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Briley v. Brunswick Cove Living Center, LLC

United States District Court, E.D. North Carolina, Southern Division

May 16, 2018

WENDY GALE BRILEY, formerly known as Wendy Webb, Plaintiff,


          LOUISE W. FLANAGAN, United States District Judge

         This matter comes before the court on motion for summary judgment (DE 24) filed by defendant Brunswick Cove Living Center, LLC (“defendant”).[2] Plaintiff responded and defendant replied. In this posture, the issues raised are ripe for ruling. For the following reasons, the motion is granted.


         Plaintiff commenced this employment discrimination action with a verified complaint filed on November 23, 2016, against defendant, her former employer, which is a nursing home and assisted living facility located in Winnabow, North Carolina, (the “facility”); and defendant Ronald Ross (“Ross”), who also is a former employee of defendant, asserting the following claims:[3]

1) Violation by defendant of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 et seq., due to discrimination based upon sex, hostile work environment, and retaliation (Third Cause of Action).
2) Common law intentional and negligent infliction of emotional distress (First and Second Causes of Action).
3) Wrongful discharge by defendant in violation of North Carolina public policy (Fourth Cause of Action).
4) Negligent supervision and retention by defendant (Fifth Cause of Action).
5) Assault (Sixth Cause of Action).
6) Invasion of privacy - offensive intrusion (Seventh Cause of Action).

         Plaintiff seeks compensatory and punitive damages in excess of $25, 000.00, as well as attorney's fees and costs. Defendant answered, and the clerk entered default against defendant Ronald Ross. In the meantime, the court entered case management order providing for close of discovery on August 22, 2017, and deadline for dispositive motions on September 22, 2017.

         Defendant timely filed the instant motion, accompanied by a memorandum in support with exhibits. In particular, defendant relies upon the following materials in support of its motion:

1) Plaintiff's deposition.
2) A handwritten note of defendant Ross.
3) Plaintiff's charge of discrimination.
4) Affidavit of Zachary Miller (“Miller”), administrator of the facility.
5) Affidavit of Alice Dale, RN (“Dale”), director of nurses at the facility.
6) Exhibits marked during plaintiff's deposition, including defendant's employee manual, Equal Employment Opportunity Commission (“EEOC”) filings; defendant's sexual harassment/discrimination policy; and weekend manager job duties.
7) Plaintiff's time card reports, signed policies, and defendant's time clock process.
8) Resignation letter of defendant Ross.
9) Plaintiff's medical records.
10) Defendant's responses to interrogatories and requests for production of documents.[4]

         In opposition, plaintiff relies upon a brief, statement of material facts, defendant's interrogatory responses, statements made in defendant's brief, and an affidavit by plaintiff. In reply, defendant relies upon exhibits previously cited, as well as an additional medical record.[5]


         The facts viewed in the light most favorable to plaintiff may be summarized as follows. Plaintiff was employed by defendant from April 2013 until her termination on April 25, 2014. (Pl's Aff. (DE 26-3) ¶1; Verified Compl. ¶ 7). Plaintiff started as a cook assistant and then became a certified nursing assistant at the facility. (Verified Compl. ¶ 8). Individuals “with the authority to hire, fire or discipline” plaintiff were Miller and the “Director of Nurses, ” Alice Dale (“Dale”). (Miller Aff. (DE 25-10) ¶ 23; Dale Aff. (DE 25-11) at ¶¶ 15-17).

         Defendant Ronald Ross (“Ross”) was hired as defendant's maintenance supervisor and maintenance department head December 14, 2012. (Org. Chart (DE 25-10) at 6).[6] He did not have any “authority to give [plaintiff] assignments and could not hire, fire, [or] disclipline [plaintiff] or any other employee assigned to the Nursing Department.” (Miller Aff. (DE 25-10) ¶ 23; Dale Aff. (DE 25-11) at ¶¶ 15-17). Ross submitted a letter of resignation on February 10, 2014, giving notice that he would work until March 28, 2014. (Defendant's Interrog. Resp. (DE 26-4) at 10).

         On February 10, 2014, defendant Ross approached plaintiff and asked her name, and plaintiff stated her name was Wendy and turned and walked away. (Pl's Dep. (DE 25-2) at 20). The next day, on February 11, 2014, defendant Ross hand delivered a note to plaintiff as follows:

         (Image Omitted)

         (Pl's Aff. Ex. 1 (DE 26-3) at 5-6; see Pl's Dep. (DE 25-2) at 20)). Plaintiff did not read the note until the end of her shift that day. (Pl's Dep. (DE 25-2) at 21-22). Plaintiff worked the next day without incident. (Pl's Dep. (DE 25-5) at 9; Time Card Report (DE 25-13) at 3).

         On Thursday, February 13, 2014, on a day when plaintiff was off and not working, plaintiff came into the office, and described the note to a co-worker, Elizabeth Rothenberger (“Rothenberger”), who told plaintiff she needed to see Dale. (Pl's Dep. (DE 25-5) at 9-10). Rothenberger then walked plaintiff to Dale's office. (Id.)

         Rothenberger stayed briefly with plaintiff in Dale's office, then Rothenberger left and plaintiff and Dale had a conversation about the note. (Pl's Dep. (DE 25-5) at 11). Dale said that defendant's head administrator, Zachary Miller (“Miller”) “was out of the office that day or out of the facility that day, that she would bring it to his attention and let [plaintiff] know from there.” (Pl's Dep. (DE 25-5) at 11). Miller was out of the office from February 13, 2014 through February 16, 2014, returning Monday, February 17, 2014. (Miller Aff. (DE 25-10) ¶ 3). Dale “did not realize that [defendant] Ross would be making rounds the upcoming weekend, ” at which time plaintiff was scheduled to be working at the facility. (Dale Aff. (DE 25-11) ¶¶ 8, 10). Defendant Ross was on a “rotat[ion]” that weekend “to provide supervisor coverage at the facility, ” (Pl's Aff. ¶ 11), and Martha Kahn (“Kahn”) was the weekend nursing supervisor. (Defs' Interrog. Resp. (DE 26-4) at 5, 12).

         Plaintiff reported for work on the weekend of February 15-16, 2014. During their regular work shift that weekend, plaintiff and another employee took a belt to defendant Ross for repairs, and defendant Ross made “hand actions . . . like he was having sex with the belt.” (Pl's Dep. (DE 25-2) at 29). Defendant Ross also “pretend[ed] to be grabbing himself” multiple times during the weekend. (Id.). While working that weekend, plaintiff and Ross had an encounter in a patient's room, “[w]hile [plaintiff] was providing patient care in an incoherent patient's room, ” in that “Ross entered the room, closed the door, and stated to [plaintiff] that as a supervisor she [sic] needed to speak with him [sic].” (Verified Compl. ¶ 23; see Pl's Dep. (DE 25-3) at 7-8). “Based on Ross' position as a Maintenance Supervisor and a Department Head [plaintiff] felt compelled to answer to him and viewed [him] as a supervisor and a superior.” (Pl's Aff. (DE 26-3) ¶ 10).

         At some point that weekend, plaintiff “had a conversation with” defendant Ross, during which “[h]e apologized for giving [plaintiff] the [note].” (Pl's Dep. (DE 25-3) at 9-10; see Miller Aff. Ex. A (DE 25-10) at 4). In addition:

After several attempts [by plaintiff] at avoiding and ignoring Ross he continued to approach [plaintiff] during her shift. Each time [plaintiff] ignored him and [she] would immediately walk to an area with other employees present. Finally, as [plaintiff] was in the dining room Ross walked into the room and remained by the door with his arms crossed and impeded plaintiff's ability to get through that door. From then on, [plaintiff] did everything in her power to avoid contact with Ross and went the opposite direction each and every time she saw him.

(Verified Compl. ¶ 23; see Pl's Dep (DE 25-2) at 37-38; Pl's Dep. (DE 25-3) at 8-9; see Miller ...

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