Evans v. Larchmont Infant Care Center et al, No. 2:2011cv00306 - Document 59 (E.D. Va. 2012)
Court Description: OPINION AND ORDER 38 MOTION for Summary Judgment by Larchmont Baptist Church Infant Care Center, Inc.. For the reasons stated herein, Defendant's motion for summary judgment, ECF No. 38, is DENIED. An amended scheduling order setting this matt er for trial, among other things, will be forthcoming. The Clerk shall promptly mail a copy of this Order to Plaintiff. IT IS SO ORDERED. Signed by Magistrate Judge F. Bradford Stillman and filed on 9/11/12. Copies distributed to all parties 9/11/12.(ldab, )
Download PDF
<![CDATA[
UNITED FOR THE STATES EASTERN DISTRICT DISTRICT Norfolk NICOLE D. FILED COURT OF VIRGINIA SEP 1 1 Division EVANS, 2012 CLERK, US DISTRICT COURT NORFOLK, VA Plaintiff, Case v. LARCHMONT INFANT BAPTIST CARE No.: 2:llcv306 CHURCH CENTER, INC. Defendant. OPINION Before Care Center, on May 1, to the Court judgment the "employer" VII") the or (the 2012.1 ECF No. summary because Inc.'s is ICC on did alleged "ICC") 38. not Larchmont Motion for Baptist the of with discrimination July No. 10, number 21, 41. federal the Civil of 2012, 2012, the statutory Act employees the Court that of ("ADA") who is proceeding pro se, a Rebuttal ordered the granted definition 1964 at of ("Title the time occurred. filed Court filed discrimination claims Rights Act Disabilities Evans, Defendant Infant Summary Judgment, Memorandum in Opposition and supporting exhibits ECF Church Defendant argues that it is entitled meet VII Americans Plaintiff Nicole a Defendant ORDER Plaintiff's employment under Title the AND ICC Brief on supplemental employed. ECF timely filed on May May 18, 22, 2012. briefing No. 45. 2012. On on On the August Defendant an extension until August 27, 1 Defendant attached a Roseboro Notice to the motion. -1- 2012, to file evidence or supplemental briefing in support of the instant motion and granted Plaintiff until September respond or further supplement her briefing. have complied Accordingly, briefed herein, and with the Court's Defendant's ready for I. supplemental Motion for Summary disposition. Defendant's motion is ECF No. For 54. 2012, to The parties briefing Judgment the reasons orders. is fully set forth DENIED. FACTUAL AND PROCEDURAL BACKGROUND For the purpose of the instant motion, not in dispute. 4, the following facts are The ICC is a former day care center. Plaintiff was employed as the Lead Teacher in the "Infant Room" at the ICC from September 2006 until August 2009. Am. Compl. 2-3, ECF No. 33 at 2- 3. In July 2009, for allegedly the ICC discharged one of Plaintiff's coworkers sleeping on the job. Id. at 2. The coworker subsequently filed a disability discrimination claim with the U.S. Equal Employment attach. 3. On July Kimberly Carmi, 24 into investigation witnessed the Opportunity and the July 31, 7. 29, ("EEOC"). 2009, in claims, ECF connection the ICC s No. 33 with an director, asked Plaintiff to write a statement that she had coworker Plaintiff 2009, July coworker's sleeping sought similar statements attach. Commission Ms. 3. Ms. Carmi from other ICC staff members. Id. at 3, at 3. On refused to Carmi on the write distributed -2- job. a a Id. at statement. survey Id. regarding staff's awareness about the attach. August 9. 3, ICC's policy against Plaintiff 2009, did not complete Plaintiff wrote a sleeping on the job. the letter survey. to the Id. EEOC at Id. 3. On stating that the coworker had been wrongfully terminated and that there had been no formal discussions regarding sleeping on the On August 7, 2009, Ms. Carmi reassigned of Assistant Teacher in the Toddler Although consequence the of the ICC did not II reduce reassignment, job. Plaintiff Room. Id. Id. 4. to the position at Plaintiff's Plaintiff attach. 3, attach. pay alleges rate that 7. as a her hours were reduced from forty hours per week to thirty-two less hours.2 Id. at 3. attach. which, she had not received prior to her reassignment. alleges, She also began receiving written reprimands, Id. 10, 17, 3, 11. On August the 8, at she EEOC. Id. 2009, attach. Plaintiff filed a 13. Plaintiff was retaliation charge with later transferred to the position of Lead Teacher in the "Transition Room."3 PL's Opp. Mem. to Def.'s 2010, the Sum. ICC J. Mot. Ex. terminated E, ECF No. Plaintiff. 41 Am. attach. Compl. 8. at On 4. June 3, Plaintiff alleges that the termination was the ICC's final act of retaliation 2 Payroll records from the relevant time period reveal that the amount of Plaintiff's reassignment. weekly Def.'s Sum. J. pay Mot. was Ex. reduced 1, subsequent ECF No. 38 attach. to her 1. 3 There is evidence that on September 28, 2009, after learning of Plaintiff's EEOC charge, the ICC director offered to transfer Plaintiff to the position of Lead Teacher in the "Toddler I" room, where she would have three assistants. ECF No. 33 attach. 11. Plaintiff reportedly declined the offer. -3- Id. related to Plaintiff's conduct coworker in 2009. charge alleging environment On July 15, that and she On August 26, 2010, 2010, had discharged protected activity under surrounding Plaintiff been in the termination of her filed a subjected retaliation the ADA. Id. the EEOC issued a to for attach. a second EEOC hostile work participating in 15. Determination, finding that the ICC was an employer within the meaning of the ADA and that [t]he evidence believe the reveals Respondent there is sufficient retaliated against cause the to Charging Party by initially demoting her from Lead Teacher in Infants to Assistant in Toddlers and then reassigning her to the Transition Room. The evidence also reveals that the Charging Party was further retaliated against in being issued a Record of Discussion which had not been issued to anyone previously. This action is in violation of the Americans with amended, Section 503. PL's Opp. Mem. The attached EEOC Determination. the terms of Disabilities to Def.'s Sum. a ECF No. the J. Mot. proposed 33 16. Right to Sue attach. 18. timely June 2011. 9, ECF No. The filed on March a of 1990, ECF No. as 41 attach. Agreement to 4. its ICC declined to accept Agreement, Plaintiff a Notice of Plaintiff 4, Conciliation attach. Conciliation Ex. Act and 18, Complaint the 2011. in EEOC issued ECF No. this Court 33 on 3. Plaintiff's one-page complaint alleged retaliation under the ADA and Title VII the ICC, of the Civil Rights Act of 1964. it named Kimberly Carmi and Laura Reed, Board of Directors, as individual defendants. -4- In addition to Chair of the ICC's On January 17, 2012, the ICC and complaint state a Ms. for Reed lack claim. the ICC On 23, February dismiss 29, Plaintiff's as dismiss jurisdiction January 19, complaint 2012, case to matter 2012, on the ECF No. the the Carmi same to filed a grounds argued sua Carmi sponte, and Reed should not be granted ECF No. the ICC's 2012. ECF No. March 19, 31. 2012. Answer to She 4 be filed ECF No. 33. the Show an Amended On March Cause 30, 2012, dismissed Defendant's from to the because exhibits on filed its Defendants Carmi and ECF No. 36. Plaintiff had failed to the ICC not an it to employed this that case. the Acts' Plaintiff's Arbaugh v. Court matter fifteen In its denied or more & the 2012 numerosity rather H Corp., than a 546 U.S. Plaintiff's fact employees February 29, employer claim Y on lack ICC employer within the definition of the ADA or Title VII because predicated for the 2, matter never dismiss and March subject was to case on of jurisdiction motion 2012, the Court Ordered that a Order Complaint Plaintiff's Amended Complaint. On March 21, Reed to state motion 30. response to 29. granted Plaintiff leave to file an amended complaint.4 ECF No. a failure directed and filed for failure claim Plaintiff complaint Court and Ms. improper defendants. 2012, Plaintiff's 25. Court, show cause why defendants dismissed from the On On motion Reed's motion. February Plaintiff to 23. Plaintiff's and Ms. a subject ECF No. motion to dismiss in of filed motion that during Order, requirement jurisdictional 500, to jurisdiction. -5- 515 the the was times Court was an relevant explained element of prerequisite. See (2006). Accordingly, the dismiss for lack of subject demonstrate VII. that they were proper defendants under the ADA or Title ECF No. 35. On April Plaintiff 30, appeared behalf of the represented there was Klein ICC. that no 2012, for 1, ECF No. the requested ICC the At policy to to a as cover appeared conference, Mr. corporation Plaintiff's Certificate ICC's a Esq., a Commission, maintain conference at which Klein, the status had dissolved the status Gregory submitted of and that claims. Mr. Fact from the that the existence registered Klein states which corporate on agent. on June ECF No. 30, 50. On ICC filed the instant motion for summary judgment. The motion a 37. Corporation failure 38. and ECF No. terminated 2012, se insurance State Commission the Court held a pro subsequently Virginia May 2012, hearing is on now the fully briefed and neither party has matter. Accordingly, it is ready for disposition. II. Under Rule judgment to any material it Lobby, 477 could fact law." might "genuine" of the JUDGMENT STANDARD Federal Rules of Civil should be granted only if "there matter of if 56 SUMMARY Fed. affect U.S. only return a and the 242, if R. the verdict the movant Civ. P. outcome 248 for 56(a). of (1986). evidence the is the A "is A fact case. dispute such summary no genuine dispute as entitled non-moving -6- is Procedure, to is judgment "material" Anderson of that v. material a party." a only Liberty fact reasonable Id. as is jury The party seeking responsibility of motion" and summary informing the district demonstrating fact. When, here, the trial, the of v. Catrett, 477 nonmoving party bears moving ^showing' that court absence Celotex Corp. at is, "bears the material as judgment party may discharge initial of the basis a genuine U.S. the the its dispute 317, burden 323 of (1986). of persuasion initial pointing out to the district for its burden "by court that there is an absence of evidence to support the nonmoving party's case" or by producing evidence nonmoving party's this the answers to specific Id. at exists, Id. at 325. the nonmoving party by her own interrogatories, facts essential 323, showing that elements If the movant is affidavits, required there by admissions and or on is of the satisfies "to go beyond the depositions, file, a genuine issue determining a "court whether genuine must draw a dispute of all reasonable nonmoving party and may not make weigh (4th and negates designate for trial." 325. In the claims. initial burden, pleadings that the evidence." Williams Cir. consider 2004). materials record evidence, 56(c)(3), mindful In of v. conducting cited by the advisory notes Plaintiff's 2010. pro se of credibility determinations or In -7- is the status Inc., analysis, parties, including that which inferences but not a it that F.3d court may cited. instant and 372 in fact favor Staples, this material need 667 only consider Fed. case, 662, R the documents any .Civ. P. Court is filed pro se are "to standards Pardus, 1151 be liberally than formal 551 U.S. (4th Cir. 89, 1978) construed" pleadings 94 and held drafted by (2007); Gordon to "less stringent lawyers." Erickson v. v. Leeke, 574 F.2d 1147, ("The Fourth Circuit takes the position that its district courts must be especially solicitous of civil rights plaintiffs. This counsel must pro se."). be solicitude for a heightened when a Accordingly, the civil civil Court rights rights has plaintiff plaintiff appears conducted an review of evidence filed in support of both parties' III. with independent positions. DISCUSSION AND ANALYSIS The ADA and Title VII define an employer as "a person engaged in an industry employees for affecting each commerce working day who in has each fifteen (15) or more twenty (20) or more . ."42 of calendar weeks in the current or preceding calendar year. U.S.C. §§ 2000e(b), 12111(5). The fifteen employee . numerosity requirement is a threshold element of any plaintiff's retaliation claim. v. See Arbauqh v. Y & H Corp., Deltaville Boatyard, at *7 (E.D. Va. Feb. 14, LLC, 546 U.S. Civil No. 2011) 500, 515 3:10cv491, (citing Arbaugh). (2006); 2011 WL 666050, In determining the number of individuals a defendant employed on a given day, must examine the number of individuals with Coles whom the courts defendant maintained an employer/employee relationship rather than the number of individuals Walters v. who Metro. worked Educ. or were Entr., compensated Inc., -8- 519 U.S. on that 202, 206 day. See (1997). Defendant argues that it never the employed years fifteen relevant to is entitled to summary judgment because employees the instant Plaintiff alleges that in 2010 for engaging in for the requisite she was demoted in 2009 and terminated protected activity in is whether there over whether numerosity year preceding reassignment, ICC or 2010, 12111(5); 233 Va. year is a genuine dispute 2009, ("'Current in the her Co., calendar year'" 42 947 is 2008, year termination. CMA Constr. see White v. 1996) which year of Accordingly, requirement reassignment, the 2009. F. alleged harassment Empresas Diaz Masso, Inc., Cir. 973-974 A. 2011); (7th Cir. v. Castaways Supp. the ICC's Family Diner, 453 231, as see F.3d §§ the also 167, F.3d 175 971, 2006). Defendant Has Met Its In support of Smith 651 her U.S.C. occurred."); Hernandez-Miranda v. the of defined the (1st in the Plaintiff's 2000e(b), (E.D. met during dispute. the question before the Court the period it Initial Burden on Summary Judgment. of its position, Defendant has purported weekly payroll submitted printouts transactions ("the ledger") from January 2008 through December 2009.5 Def.'s Sum. J. Mot. Supp. Mem. Ex. the 1, names individual ECF No. of paid did not 39 attach. employees work in a 1. and For the each amount given week, 5 Although not fatal to its motion, -9- his the they were or her ledger paid. name is lists If an absent Defendant has not submitted an affidavit or declaration attesting to the printouts. week, source or accuracy of the from the list for that week. The number of employees paid in a given week has been totaled and is hand-written to the right of the employees' names. Id. In 2008, the total number of employees paid in any given week never exceeded fourteen. Id. indicate paid four weeks Id. There employees. in is which no the ledger ICC data for In 2009, the totals fifteen the week or more of April 19, 2009. Defendant has former director states that employed than and the ICC. Kimberly responsible in 2009 individuals cannot produce ever met the Order, its that submitted an Affidavit and on ECF No. initial B. 2010, Id. Plaintiff s the ICC ECF "never for Ultimately, evidence Defendant's burden on Aff., weekly basis sufficient fifteen-employee 46. Carmi from Kimberly Carmi, No. 55. for managing the personnel the a than nineteen weeks." Plaintiff ICC of she was fourteen greater also ICC employed more period Defendant of time argues that to establish that requirement. productions a It Def.'s Resp. and argument the to Ct. satisfies summary judgment. Evidence Establishes a Genuine Dispute of Material Fact. Plaintiff numerosity contends, requirement. however, In her that opposition primarily attacks the veracity of the as a means for a determining employed in given numerous exhibits in week. number ECF No. of her -10- ICC satisfied memorandum, 41 of at individuals 6. position She to its use Defendant has her the Plaintiff ledger and questions the support the attached opposition memorandum. Pursuant to this Court's February 29, 2012 Order, she also attached documentation in support of her claims to her amended complaint. According EEOC to identified the evidence seventeen weeks employed fifteen employees. interviewed an Plaintiff's on the employee claims ledger. that during ECF No. during Plaintiff 2009 41 attach. an in November 2009, who was 41 from a ECF 3, 41 Simpson this on ledger 2009/ her 11. the inference would produce As in Plaintiff has submitted Neither ledger; an in its an fifteen the EEOC apparently not into listed affidavit and dated August Sampson." copies is ECF No. time cards to July 31, 2009, of 2009 2009. Sampson nor reasonable whether her name a to is Liz infer Sampson Defendant makes no attempt to five Adding her to the employee weeks in 2009 in which the employees. out, from the week of April 39 it Reply brief. additional Plaintiff points ECF No. ICC the investigation Elizabeth however she was an ICC employee. ICC employed which However, "Elizabeth documentation presented that, or Simpson, pool 4. attach. appears from the rebut at including an "Liz Simpson" that date from May 26, No. 5. the Id. sixteen employees, attach submitted, in on-site A document entitled "State Tax Summary" lists has attach. that 1 she Ms. 14, at was Carmi's 2009, 30-31; is absent from the through the week of May 31, however employed -11- name with Ms. the Carmi ICC represents in 2009 and attests to having direct knowledge of the number of employees that the ICC employed throughout that year. can reasonably infer that the absence even though she was at ICC From these facts, employed Ms. not being paid. Carmi the Court during See Walters, her 519 U.S. 208. The absent same can from the be said of numerous other ledger during various weeks individuals who are in 2009 but who appear regularly for periods before and after their absences. For example, Carmen the April week Navarrete 27, of 2008. is April ECF No. 5, 3, she respective which the The 6 2010, attach. 1. as She early is reappears she when date of hire adding her and Ms. their absent ledger as as absent ICC payroll from the Documents Navarrete during her absences employed of August week beginning Carmen the records Sawko Defendant on of the the as April 2009. Carmi produces fifteen ledger 9 and 15, lists changed her absence. name ECF No. has from 41 additional and -12- attach. 8. ICC during her eight twelve weeks but 19. it to for of in the name is reappears indicate Navarrete 8, names Sharon Hand's 2009, submitted Carmen 41 employees. 19, attach. lists Ms. ECF No. respectively. July submitted ledger during the weeks fourteen 2009, Plaintiff an or more ledger beginning that to the has 2009, dated October 23, retained an employment relationship with the absence, weeks the An Organizational Chart Navarrete-Sawko's If but on 2009.6 She then remains on the ledger through the week of January Id. 39 2009, week of July 19, end. listed that Carmen on Ms. Sawko August still 16, an status 2009, making it reasonable to conclude that Ms. ICC employee the week of August as such transactions. is not Veida reflected Evans and in the Shirley 2, 2009, even though her following and week's payroll Dailey Bobby absent from the ledger the week of August 15, Hand was are 2009, all but all three appear regularly on the ledger in preceding and subsequent weeks. ECF No. ICC's 39 attach. payroll 1 at during 33-35. their Adding these respective individuals absences to the produces an additional two weeks in which the ICC employed fifteen employees. Plaintiff has also submitted an affidavit from Linda Turnage, in which Ms. July 1999 Turnage attests that she was employed by the ICC from through January organizational chart that 2011. the ICC 8. Ms. always 33 attach. Linda Turnage Aff., Turnage attests that, "has No. Plaintiff submitted lists Ms. the Lead Teacher for preschoolers. attach. ECF employed 12. The Turnage as ECF No. 41 to the best of her knowledge, fifteen (15) to nineteen (19) employees due to the Staff to Children Ratio in each classroom." ECF No. 33 attach. 12. Although a cursory review of the ledger suggests that the ICC failed to meet the numerosity requirement in 2008 or 2009, whether an employee worked or was compensated during a given week is not dispositive of whether the defendant relationship with that individual. Viewing the record evidence in -13- maintained See Walters, the light an employment 519 U.S. most at 206. favorable to Plaintiff, depict it the seems number employment on inferences in its fifteen or more is more Moreover, the given of the Plaintiff, in 2009 of the ledger that the ICC met similarly unable to numerosity requirement conclude that is the submitted Ms. other weeks hand, employees employees states of their the Edgar, 809 2008 and is may that or not has is missing from to ICC that the can which fourteen 2010. ICC 1034, 2009. employed but the it ledger from in 2009, did all proffered. conclude not Turnage's always the it meet is the this correct; 1039 (4th -14- case. knowledge not of relevant however, that for 1987). the more at least ICC than on the fifteen Both women were the number period. making of Only one credibility summary judgment. Cir. Defendant affidavit, employed to claim states individuals Ms. relevant and be ICC an identify at twenty, Defendant affidavit, the years and have unable is had drawing able to ICC nineteen that is a task for trial F.2d is the ICC employed during the accounts determinations v. the in ICC issue of competing affidavits. than 2009 during the individuals of in the accurately year. Carmi's nineteen week not the numerosity requirement there more whom Court 2009 Court Finally, employed 19, does ledger which weeks April Although never in the Indeed, four altogether. has with review the week ledger any employees. than the during own weeks that individuals favor of nineteen far of relationship Moreover, least apparent Summerlin Accordingly, unable to employer years conclude, within 2009, or this a genuine least is a matter to 2010. Defendant the meaning creates employed at as on the relevant evidence based judgment, setting this of the dispute Accordingly, reasons No. the matter law, that ADA and of the Court Defendant was Title the fact it, VII not during parties' over whether cannot an the proffered Defendant for twenty weeks during Court is conclude 2008, that summary judgment. CONCLUSION stated herein, 38, before Rather, fifteen employees entitled to ECF of suit. IV. For the record is for DENIED. trial, Defendant's motion An amended among other for summary scheduling things, order will be Order to forthcoming. The Clerk shall promptly mail a copy of this Plaintiff. IT IS SO ORDERED. UNITED STATES MAGISTRATE JUDGE Norfolk, Virginia September U , 2012 -15-
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
