United States District Court, E.D. North Carolina, Southern Division
W. FLANAGAN, United States District Judge
matter comes before the court on motion for summary judgment
(DE 24) filed by defendant Brunswick Cove Living Center, LLC
(“defendant”). Plaintiff responded and defendant
replied. In this posture, the issues raised are ripe for
ruling. For the following reasons, the motion is granted.
OF THE CASE
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:
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
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
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.
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
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).
Ronald Ross (“Ross”) was hired as defendant's
maintenance supervisor and maintenance department head
December 14, 2012. (Org. Chart (DE 25-10) at
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).
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:
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).
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.)
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).
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).
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