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Francis v. Esper

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

May 16, 2018

GINA Y. FRANCIS, Plaintiff,
MARK T. ESPER, Secretary, U.S. Dept. of Army, Defendant.



         This cause comes before the Court on defendant's motion for summary judgment and motion to strike. The appropriate responses and replies have been filed, or the time for doing so has expired, and the motions are ripe for ruling. A hearing on the matters was held before the undersigned on April 18, 2018, at Raleigh, North Carolina. For the reasons that follow, defendant's motion to strike is denied and defendant's motion for summary judgment is granted in part and denied in part.


         Plaintiff, Gina Francis, initiated this action by filing a complaint in this Court on September 28, 2016, alleging claims under Title VII of the Civil Rights Act of 1964, as amended, and the Age Discrimination in Employment Act of 1967, as amended. 42 U.S.C. § 2000e, et seq.; 29 U.S.C. § 621, et seq. Plaintiff, an African American female born in 1958, worked as the sole civilian Veterinary Medical Officer at the Veterinary Treatment Facility at Camp Lejeune in Onslow County, North Carolina from August 1, 2005, to June 9, 2011. For the rating periods of September 1, 2008, to August 31, 2009, and September 1, 2009, to August 31, 2010, plaintiff received excellent or outstanding performance ratings. [DE 21-1]. On January 11, 2010, plaintiff was counseled by Captain Angelina Gerardo (Gerardo), regarding record-keeping deficiencies. [DE 19-2 at 33].[1]Plaintiff was counseled on May 12, 2010, by Captain Lavallee for inadvertent breakage of a vial of narcotics. Id. at 35.

         Beginning in the summer of 2010, Captain Alberto Bonfiglio (Bonfiglio), a white male, became plaintiffs first-line supervisor and Gerardo became Bonfiglio's supervisor. See Id. at 144; 162. On January 12, 2011, plaintiff was counseled by Bonfiglio regarding medical record-keeping, and was counseled again on January 24, 2011, regarding her failure to implement procedures discussed at her January 12th counseling. [DE 19-2 at 42-45].

         Plaintiffs father was hospitalized from December 11 through December 16, 2010, after which he was transferred to a nursing home. [DE 19-3 at 182]. On January 29, 2011, plaintiffs father passed away. Id. On April 26, 2011, Gerardo provided to plaintiff a proposed letter of separation signed by Bonfiglio. [DE 19-2 at 49-50]. Plaintiff responded in opposition to the proposed separation. Id. at 51-56. Plaintiff was separated from her employment with the Army on June 9, 2011. Id. at 64-65]. In her complaint, plaintiff alleges claims for race, sex, and age discrimination as well hostile work environment.


         At the outset, the Court denies defendant's motion to strike plaintiffs response to the motion for summary judgment for having been filed out of time. Striking is a drastic remedy that is generally disfavored and not presently appropriate. See Fed. R. Civ. P. 12(f); Waste Mgmt. Holdings v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001).

         A motion for summary judgment may not be granted unless there are no genuine issues of material fact for trial and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If that burden has been met, the non-moving party must then come forward and establish the specific material facts in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). In determining whether a genuine issue of material fact exists for trial, a trial court views the evidence and the inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007). However, "[t]he mere existence of a scintilla of evidence" in support of the nonmoving party's position is not sufficient to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). "A dispute is genuine if a reasonable jury could return a verdict for the nonmoving party. . . . and [a] fact is material if it might affect the outcome of the suit under the governing law." Libertarian Party of Virginia v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (internal quotations and citations omitted). Speculative or conclusory allegations will not suffice. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002).

         Under Title VII, there are two avenues through which a plaintiff may avoid summary judgment. First, a plaintiff may proceed under the mixed-motive framework by presenting direct or circumstantial evidence that discrimination motivated the employer's adverse employment decision. Hill v. Lockheed Martin Logistics Mgmt, Inc., 354 F.3d 277, 284 (4th Cir. 2004) (en banc) (abrogated on other grounds by Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013)). Under the mixed-motive theory, a plaintiff need only demonstrate '"a stated purpose to discriminate and/or indirect evidence of sufficient probative force to reflect a genuine issue of material fact.'" Brinkley v. Harbour Recreation Club, 180 F.3d 598, 607 (4th Cir. 1999) (alteration and quotation omitted).

         "The second method of averting summary judgment is to proceed under a 'pretext' framework, under which the employee, after establishing a prima face case of discrimination, demonstrates that the employer's proffered permissible reason for taking an adverse employment action is actually a pretext for discrimination." Hill, 354 F.3d at 285 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 807 (1973)). To establish a prima facie case of employment discrimination, plaintiff must show (1) that she is a member of a protected class; (2) who suffered an adverse employment action; (3) that at the time of the adverse action she was performing at a level that met her employer's legitimate expectations; and (4) the position remained open or was filled by similarly qualified applicants outside plaintiffs protected class. Hill, 354 F.3d at 285. "The central focus of the inquiry in a case such as this is always whether the employer is treating 'some people less favorably than others because of their race, color, religion, sex, or national origin.'" Furnco Const. Corp. v. Waters, 438 U.S. 567, 577 (1978) (quoting Teamsters v. United States, 431 U.S. 324, 335 n.15 (1973)).

         Plaintiff appears to proceed under the pretext framework. [DE 20]. Defendant concedes that plaintiff satisfies the first and third elements of her prima facie case - that is, that plaintiff is a member of a protected class or classes and that her termination was an adverse employment action. Defendant relies on plaintiffs record-keeping errors as evidence of both plaintiffs unsatisfactory job performance and his legitimate, nondiscriminatory reason for terminating plaintiffs employment. In response to the summary judgment motion, plaintiff has submitted the following evidence. Staff Sergeant Dawn Torrisi (Torrisi), the NCOIC[2] at the veterinary clinic, testified that when she reviewed all charts for charting errors plaintiff appeared to have no more mistakes than any of the military veterinarians. [DE 21-5] Torrisi Test, at 269, 273. Torrisi testified that she heard Bonfiglio refer to civilian staff as "his minions" and stated that that most of her staff was offended by Bonfiglio's comments. Torrisi Test, at 273. Torrisi heard Bonfiglio request to only see patient-animals with attractive owners on a regular basis. Torrisi Test, at 275. Bonfiglio apparently made the same if not more mistakes in record-keeping as plaintiff but was not counseled for those or other mistakes. Torrisi Test, at 280-81. Finally, as to plaintiffs termination, Torrisi testified as follows:

A. [Torrisi] The termination letter, if you - I'm sure you've read it. ...

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