United States District Court, E.D. North Carolina, Southern Division
GINA Y. FRANCIS, Plaintiff,
MARK T. ESPER, Secretary, U.S. Dept. of Army, Defendant.
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
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.
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].Plaintiff was
counseled on May 12, 2010, by Captain Lavallee for
inadvertent breakage of a vial of narcotics. Id. at
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
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.
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).
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).
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).
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)).
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 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. ...