United States District Court, W.D. Virginia, Charlottesville Division
Veronique M. Nzabandora, Plaintiff,
University of Virginia, ET AL ., Defendants.
K. MOON UNITED STATES DISTRICT JUDGE
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.
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
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.
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).
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.
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).
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
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
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).
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).
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).
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.
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
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).
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.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
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
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 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).
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
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
• 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
• Plaintiffs supervisor (Brenda Barrett):
“[L]ife is not fair, you need to get used to
that.” UVA “does not like people complaining
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.
survive summary judgment on the basis of direct and indirect
evidence, [a plaintiff] must produce evidence that 
clearly indicates a discriminatory attitude at the workplace
and must  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 ...