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Nzabandora v. University of Virginia

United States District Court, W.D. Virginia, Charlottesville Division

September 22, 2017

Veronique M. Nzabandora, Plaintiff,
University of Virginia, ET AL ., Defendants.



         This is an employment discrimination case against the University of Virginia (“UVA”) and the Commonwealth of Virginia filed by a former nurse at UVA's medical center. Plaintiff Veronique Nzabandora asserts claims of racial and national origin discrimination, retaliation, and a hostile work environment related to her employment and termination. The parties have filed cross-motions for summary judgment.

         The facts viewed in Plaintiff's favor reveal that she was subjected to some harassing remarks during her employment. But Defendants have provided legitimate reasons for her termination, which Plaintiff has not shown are pretextual. First, Plaintiff refused to cooperate with an investigation into an alleged medication error. Second, during the course of that refusal, Plaintiff made remarks to her supervisor and an HR employee that those individuals (as well as high-level UVA administrators) interpreted as threats. For those reasons, Plaintiff's claims relating to her termination fail. Additionally, all but one of her claims not bearing directly on her termination must be dismissed as a matter of law.

         The hostile work environment claim, though, will proceed to trial. Defendants did not raise an argument for its dismissal in their opening brief, and Plaintiff's motion fails because- viewing the facts in Defendants' favor-no harassing or discriminatory statements were made.


         Federal Rule of Civil Procedure 56(a) provides that a court should grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” “As to materiality . . . [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In order to preclude summary judgment, the dispute about a material fact must be “‘genuine, ' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.; see also JKC Holding Co. v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). However, if the evidence of a genuine issue of material fact “is merely colorable or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 250. In considering a motion for summary judgment under Rule 56, a court must view the record as a whole and draw all reasonable inferences in the light most favorable to the nonmoving party. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994).

         Because there are cross-motions for summary judgment, the facts would usually be viewed twice: once in Plaintiff's favor when considering Defendants' motion, and vice versa. Defs. of Wildlife v. N. Carolina Dep't of Transp., 762 F.3d 374, 392 (4th Cir. 2014) (quoting Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003)). However, the Court recounts the facts only in Plaintiff's favor, because the grant of Defendants' summary judgment motion negates the need to consider Plaintiff's affirmative motion and construe the facts a second time in Defendants' favor. E.g., Rossignol, 316 F.3d at 523 (observing that grant of summary judgment to defendant necessarily resolves plaintiff's cross motion). The hostile work environment claim, however, is an exception to this approach because that claim is before the Court only on Plaintiff's motion. Thus, the Court construes the facts in Defendants' favor during its analysis of that count. See infra Part IV.


         In 2014, Plaintiff was interviewed and hired as a nurse by Brenda Barrett, who became her supervisor. (Dkt. 63-1 at ECF 11-12; dkt. 63-4 ¶¶ 3, 5). According to Plaintiff, as of August 2015, she felt that Barrett gave her “everyday support, ” but that changed after Plaintiff “complained about discrimination.” (Dkt. 63-1 at ECF 19).

         The facts construed in Plaintiff's favor indicate that co-worker Brittany Abshire used racially charged language towards Plaintiff on occasions in the second half of 2015. In July and August 2015, Abshire called Plaintiff a stupid African immigrant and accused her of sitting on her “black ass.” (Dkt. 75-2 at ECF 9-10, 14, 25). In September, Abshire told Plaintiff during work to stop sitting on her “black African ass” and occasionally stated she could not stand Plaintiff's “smelly food” and accent. (Id. at ECF 54). During this July-to-September period, Abshire also told Plaintiff to “go back where you came from.” (Id. at ECF 59). Plaintiff reported this conduct to Barrett on July 5th and early September, respectively. (Id. at ECF 13).

         In early September 2015, Plaintiff and Abshire became involved in a disagreement over medical protocol, requiring Barrett's intervention. (Dkt. 63-4). In an email, Plaintiff referenced bullying she experienced at the hands of Abshire. (Id.). Later that month, Plaintiff via email expressed gratitude to Barrett for her role in helping mediate the conflict with herself and Abshire. (Dkt. 63-1 at ECF 16-17).

         This détente was short-lived. On September 28, 2015, Abshire claimed (and Plaintiff denied) that Plaintiff, during a disagreement, forcefully and demonstrably poked Abshire in the shoulder “multiple times” to make her point. (Dkt. 63-4 at ECF 25). Barrett consulted with Human Resources (HR) about the matter and relied on two witnesses who, in written statements, supported Abshire's account of the event. (Id. at ECF 26-32). HR employee Jill Melton suggested “formal counseling” of Plaintiff, but Barrett provided Plaintiff a less severe notice requiring only “informal counseling, ” a notation which was not placed in Plaintiff's permenant file. (Id. at ECF 32, 40; dkt. 59-2 at ECF 150). Abshire received a more severe sanction of formal counseling for using profane language. (Dkt. 63-4 at ECF 6-7).

         On November 2, 2015, Plaintiff sent a letter to UVA's president complaining about various work issues, including her prior incidents with Abshire, as well as Plaintiff's contention that her hours and pay were being cut. (Dkt. 63-2 at ECF 18-22). UVA Medical Center Director of Employee Relations, Veronica Ford, investigated the letter's allegations and found them to be without merit. (Dkt. 63-7 at ECF 1-2, 5-6).

         On November 30, 2015, a doctor filed a “Be Safe” report after a patient complained she received the wrong medication. (Dkt. 63-4 at ECF 46). In consultation with HR and her supervisor, Barrett decided on December 4th to place Plaintiff on administrative leave pending the investigation. (Id. at ECF 49). This decision was relayed to Ford, who had investigated Plaintiff's prior complaints. (Id. at ECF 47-48).

         On December 8th and at HR's request, Barrett called Plaintiff as part of the investigation to obtain her perspective on the alleged medication error. (Dkt. 63-4 at ECF 53). The call was unfruitful. Plaintiff generally refused to engage, and, among other things: stated she was a federal agent; asked “you don't know who you are doing this to, do you?”; and demanded to know if she was being fired. (Id. at ECF 52-53). Barrett relayed this information to Melton in HR, and the two tried again later that day to have a telephone conversation with Plaintiff.

         On the second call, Plaintiff stated that she was giving Barrett and Melton “one last chance” to do the right thing and stated, vaguely, “you see it every day in the media.” (Dkt. 63-4 at ECF 11; dkt. 63-10 at ECF 7).[1] She said that Melton and Barrett “needed to be careful, ” and when Melton pressed Plaintiff to explain, she stated that they knew “what happens” when HR does the wrong thing. (Dkt. 63-4 at ECF 11; dkt. 63-10 at ECF 7). Plaintiff further advised the employees to ask God for forgiveness and that they “are going to be surprised.” (Dkt. 63-10 at ECF 33).

         There is contemporaneous, substantial, and uncontroverted evidence that Plaintiff's December 8th statements were interpreted as threats requiring swift and extensive action. Melton relayed the conversation via email immediately to her supervisor, Ms. Ford. (Dkt. 63-10 at ECF 33). Twelve minutes later, Ford responded that security would do more patrols around the area and test the panic buttons. (Dkt. 63-7 at ECF 7-8). The Medical Center's CEO immediately requested “security present at the [holiday] celebration events, ” saying that the situation “makes me very uncomfortable in light of the current events, ” which included (1) a mass workplace shooting during a holiday party in San Bernadino, California days before, and (2) the murder of television staff by a disgruntled employee in Roanoke a few months earlier.[2]The Vice President for Health Affairs agreed, writing that “[w]e must consider this a credible threat” and said that the administrators should “consider options” and “gather appropriate security personnel.” (Dkt. 62-12 at 3).[3]

         The next morning, December 9, 2015, the Vice President for Health Affairs forwarded Melton's email to the University-wide COO and stated that “[p]eople are on pins and needles.” (Id. at ECF 5-6). UVA police launched an investigation, Virginia State Police provided extra security at the Medical Center, and local police patrolled the December 9th holiday party. (Dkt. 63-7 at ECF 2).

         After this initial perceived threat subsided, HR employees Ford and Melton recommended that Plaintiff be terminated for (1) failing to cooperate with the medication error investigation, as she was ordered to do at the time of her administrative leave, and (2) threatening her immediate supervisor and an HR employee. Barrett agreed with this recommendation[4] and drafted a termination letter dated December 18, 2015, which Plaintiff received via mail on January 6, 2016. (Dkt. 63-4 at ECF 58-59). The letter recounted the two reasons for termination and also observed, by way of background, that the investigation had confirmed a medication error. Upon receipt, Plaintiff apparently interpreted this latter statement as the basis for her firing, so Barrett sent an amended termination letter in April 2016 that omitted mention of the medicine error investigation's finding. The second letter is otherwise substantively identical to the first, and both letters contain clear, up-front, unambiguous statements that Plaintiff was fired for failure to cooperate and for making threats. (Compare id. at ECF 58-59 with id. at ECF 60- 61).


         Before turning to the substantive arguments, the Court must decide whether this is a case of direct and indirect evidence of discrimination, or rather one suited for the McDonnell Douglas framework.

         Plaintiff offers a handful of statements by UVA employees she claims they made to her that constitute direct evidence of discrimination. The statements are as follows.

Chief HR Officer at the Medical Center (John Boswell): “[Discrimination has been at UVA for over 20 years.”
Director for Neurosciences (Joel Anderson): “We have fired so many black nurses here, you are not going to be the first, you are not going to be the last one.” “You need to stop [complaining or] you will be fired.”
Employee Relations Manager at the Medical Center (Althea Howell): “[C]omplaining will never get you anywhere. Just go back to work and don't talk about it.”
Plaintiffs supervisor (Brenda Barrett): “[L]ife is not fair, you need to get used to that.” UVA “does not like people complaining about discrimination.”

         Defendants observe that none of these statements came directly from the alleged speaker. Plaintiff either did not depose the speakers or did not ask if they made these statements, and there is no written record of the statements. Instead, the statements all were attributed to the speakers by Plaintiff at her deposition. Defendants therefore argue they are inadmissible hearsay. Assuming arguendo that these statements are nonhearsay as statements of the declarant's then-existing state of mind (e.g., motive and intent), Fed.R.Evid. 803(3), they are still insufficient to avoid resort to the McDonnell Douglas framework.

         “To survive summary judgment on the basis of direct and indirect evidence, [a plaintiff] must produce evidence that [1] clearly indicates a discriminatory attitude at the workplace and must [2] illustrate a nexus between that negative attitude and the employment action.” Brinkley v. Harbour Recreation Club,180 F.3d 598, 608 (4th Cir. 1999) (finding “a few isolated statements indicating sexists attitudes” at company insufficient where plaintiff “utterly fails to connect” them with her eventual demotion and termination), overruled on other grounds by Desert Palace v. Costa,539 U.S. 90 (2003); see Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir. 2006) (holding that alleged discriminatory attitude must “bear directly on the ...

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