Midgette v. Britthaven of New Bern et al, No. 4:2011cv00079 - Document 17 (E.D.N.C. 2012)

Court Description: ORDER granting 14 Motion for Summary Judgment - The clerk is directed to close this case. Signed by Senior Judge Malcolm J. Howard on 6/25/2012. (Lee, L.)

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Midgette v. Britthaven of New Bern et al Doc. 17 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA EASTERN DIVISION NO. 4:11­CV­79­H MIOSHI CHEVELLE MIDGETTE, Plaintiff, v. ORDER BRITTHAVEN OF NEW BERNI Defendant. This matter is before the court on defendant's motion for summary judgment. Plaintiff, who is proceeding pro se, has failed to respond to the motion , despite receiving notice from the clerk/s office of her need to respond. 1 filings has expired. The time for further This matter is ripe for adjudication. Plaintiff worked for defendant I a long­term , skilled care nursing facility, for approximately fourteen months. her employment I her work performance was poor habitually late for work to monitor residents l I missed a mandatory meeting alarms and safety devices). l Melissa Parker Throughout Ex. A to Def./s Mem. Supp. Summ. J. she was l and failed See Aff. of 4 [DE #15- lOn March 8 1 2012 1 plaintiff was advised in accordance with Roseboro v. Garrison 528 F.2d 309 (4th Cir. 1975) of the requirements of Rule 56 of the Federal Rules of Civil Procedure and that failure to respond to defendant/s motion may result in the entry of summary judgment against her. l l I Dockets.Justia.com 1] ("Parker Aff. ") .) She also received numerous complaints from charge nurses about perceived laziness, poor attitude and time on task. (Id. ) In March of 2010, plaintiff received a final warning for insubordination and inappropriate workplace conduct as a result of being argumentative with a charge nurse. (Id.) On November 19, 2010, after returning from a brief excused absence, plaintiff again argued with a superior and refused to work her assigned hall. been excused by a Id., Al though her absence had 2.) doctor's note, the doctor placed no restrictions or limitations on plaintiff's return to work. Plaintiff was terminated for refusing to work her assigned hall on November 22, 2010. On January 25 , plaintiff 2011, filed a Charge of Discrimination with the EEOC alleging that her termination was (Charge of Discrimination, Ex. B due to a \\disability/record. 1I to Mem. Supp. Mot. Summ. [DE #15­2].) J. The EEOC issued plaintiff a Notice of Right to Sue on February 15, 2011. Plaintiff filed the complaint in this matter on May 13, 2011, alleging discriminatory discharge. defendant served plaintiff with On November 2, 2011, Requests Plaintiff failed to respond to these requests. for Admissions. Federal Rule of Civil Procedure 36 (a) provides, in pertinent part, \\ [a] matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a 2 written answer or objection." Fed. R. Civ. P. 36 (a). Plaintiff has failed to respond, and all the requested admissions are now deemed admitted, including: • Defendant terminated plaintiff's employment inappropriate work place conduct; because of • During her employment, plaintiff was repeatedly tardy for scheduled work shifts and received multiple warnings about deficient work performance. • From November 19, 2010 forward, no physician has diagnosed the plaintiff with a physical disability; • When plaintiff returned to work on November 19, 2010, she refused to work the shift and hall to which she had been assigned for that day; • No physician instructed or advised that the plaintiff could not work the shift and hall to which she had been assigned to work on November 19, 2010; • Defendant terminated plaintiff's employment because of legitimate, non­discriminatory reasons that have nothing to do with disability or other legally protected classification; • Plaintiff has no evidence, whether direct or circumstantial, that links her termination of employment with discriminatory motive. An employer charged with discrimination is entitled to summary judgment if the plaintiff fails to establish a prima facie case or fails to raise a factual dispute regarding the reasons the employer proffers for the alleged discriminatory act. See Henson v. Liggett Group, Inc., 61 F.3d 270, 274 (4th Cir. 1995). Furthermore, "the mere existence of a scintilla of evidence in support of the plaintiff's position [is] 3 insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. If the plaintiff establishes a prima facie case, then an inference of discrimination arises. See Henson, 61 F.3d at 274. The defendant then can offer legitimate, nondiscriminatory explanations for the allegedly discriminatory acts. McDonnell Douglas Corp. v. Green, 792 U.S. 792, 802 (1973). See The employer's burden is one of production, not of persuasionj therefore, the employer is not required to prove the absence of discriminatory motive. See Henson, 61 F. 3d at 274 ­75. plaintiff always bears the ultimate burden of persuasion. The If the employer offers a legitimate, non­discriminatory reason, the plaintiff must show by a preponderance of the evidence that the defendant's explanation is merely a pretext for discrimination or otherwise not worthy of credence. See id. at 275. It is not enough for the plaintiff to merely prove the falsity of the employer's explanation; the plaintiff must also prove his case of intentional discrimination. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 147 (2000). To establish a prima facie case of discriminatory discharge, plaintiff must demonstrate that (1) she belonged to a protected class: (2) she was discharged; (3) at the time of the discharge, she was performing her job at a level that met the employer's legitimate expectations; 4 and (4 ) her di scharge occurred under circumstances that raise a reasonable inference of wrongful discrimination. Ennis v. Nat'l 'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995). To fall within the ADA's protected class, plaintiff must show she is disabled within the meaning of the act; i. e., a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such impairment; or that she was regarded as having such an impairment. 42 U.S.C. § plaintiff suffered from 12102 (2) . such a There is no evidence that disability; in fact, her complaint alleges only a "temporary disability." Furthermore, plaintiff cannot establish that at the time of the discharge she was performing her job at a level that met the employer's legitimate expectations. shows The undisputed evidence that plaintiff had been warned several times about inappropriate conduct and had received a final warning prior to her termination. Plaintiff has failed to establish a prima facie case of discrimination. Furthermore, defendant has presented legitimate, non­discriminatory reasons for her termination, and plaintiff has failed to present evidence that the reasons were pretext. solely The record reflects that plaintiff was terminated because of repeated 5 performance issues, not discrimination violative of federal law. Therefore, defendant is entitled to summary judgment. CONCLUSION For the foregoing reasons, defendant's motion for summary judgment is GRANTED. The clerk is directed to close this case. 1iJ This day of June 2012. Senior United States District Judge At Greenville, NC #26 6

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