Amy Francisco v. Verizon South, Inc. , 442 F. App'x 752 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2432
AMY D. FRANCISCO,
Plaintiff - Appellant,
v.
VERIZON SOUTH, INC.,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia at Richmond. Dennis W. Dohnal, U.S.
Magistrate Judge. (3:09-cv-00737-DWD)
Submitted: June 23, 2011 Decided: August 8, 2011
Before GREGORY, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jay J. Levit, LAW OFFICE OF JAY J. LEVIT, Glen Allen, Virginia,
Tim Schulte, SHELLEY & SCHULTE, PC, Richmond, Virginia, for
Appellant. Raymond A. Cardozo, REED SMITH, LLP, San Francisco,
California, Helenanne Connolly, REED SMITH, LLP, Falls Church
Virginia, Betty S. W. Graumlich, REED SMITH, LLP, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Amy D. Francisco appeals from the district court’s
grant of summary judgment in favor of Verizon South, Inc. The
district court held that Francisco had failed to establish a
prima facie case of retaliation to support her claim under Title
VII. We affirm.
I.
When reviewing a grant of summary judgment, as here,
we construe the facts in the light most favorable to the
nonmoving party. Laughlin v. Metro. Wash. Airports Auth., 149
F.3d 253, 258 (4th Cir. 1998). Francisco, who is African
American, worked for Verizon and its predecessor from 1988 until
her termination on March 6, 2008. At all times relevant to this
dispute, Debra Nuckles supervised Francisco. As part of her
workplace duties, Francisco attended a conference on October 24,
2007. During the conference, Don Albert, a director at Verizon,
gave a presentation touting the company’s accomplishments. He
asked for a volunteer in the crowd to step on stage and display
cue cards to the audience at appropriate times. Specifically,
the volunteer was to display cards with words like “cheer” or
“clap” as Albert listed the successes of the company. Albert
had re-used cards from a previous presentation. On one side of
each card was a command to cheer, and on the other an image from
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The Phantom of the Opera that he had displayed at the previous
engagement. During the presentation, the volunteer dropped a
card and accidentally displayed the wrong side to the audience.
That side displayed a noose, an image used in The Phantom of the
Opera.
Francisco alleges that she “reasonably perceived this
noose and its display as a racist act of intimidation and
hostility.” J.A. 41. Although she was outraged by the
incident, she failed to notify Verizon of her complaint until
roughly three months later.
In December 2007, well before Francisco filed her
complaint, Albert was directed to identify a Verizon employee
for a reduction in force (“RIF”)--i.e., a layoff. Albert is
responsible for making “initial recommendations of the force
reductions” needed to compensate for the company’s decreased
business in the wireline department. Id. 326. That same month,
Albert determined that Francisco would be laid off. As Albert
explained, he first concluded that someone under the supervision
of Nuckles would be terminated, because Nuckles’s team comprised
an excessive number of employees. This left five candidates for
termination. Identification of Francisco as the individual to
be laid off was simple, reasoned Albert, because her performance
was rated the lowest out of the group.
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Albert maintained ultimate authority for determining
which employee was to be terminated. He consulted only with
Nuckles, during the first or second week of January 2008, and
solicited her input about his proposed decision to terminate
Francisco’s employment. He formally recommended Francisco for a
RIF on February 4, 2008. The human resources and legal
departments approved the recommendation on February 28, and
Francisco was notified of the decision on March 6. Neither
Albert nor Nuckles--the only employees vested with a role in the
decision-making process--learned of Francisco’s cue-card
complaint until after their respective roles in the RIF process
had concluded. Albert learned of the complaint on March 11,
2008, and Nuckles was so apprised on January 24, 2008.
At the same time that her termination was being
finalized, Francisco decided to voice her complaint about the
cue-card incident. She first raised the issue during a January
24, 2008 meeting with Louise Shutler and Faye Harrison, members
of the Verizon Security team. The meeting was arranged to
investigate Francisco’s three-day unexcused absence from work
the preceding week. Francisco took that opportunity to explain
the cue-card incident to Shutler and Harrison, but Shutler
informed her that Verizon Security had no jurisdiction over the
matter. Instead, Shutler promised to forward the complaint to
the company’s ethics office.
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Hearing no further word about her complaint, Francisco
on February 7 contacted Shutler. Shutler acknowledged that she
had forgotten to forward the complaint and had not spoken with a
single person about the issue. She promised to take action
immediately and ultimately transmitted the complaint to Kenna
Ashley, who talked with Francisco on February 13. No further
action was taken on the complaint, and Francisco was notified of
her termination on March 6.
After learning of her termination, Francisco filed
suit, alleging unlawful retaliation in violation of Title VII.
In her complaint, Francisco asserted that she was “terminated
from employment with Verizon in retaliation for complaining
about incidents at work of race discrimination and racial
intimidation.” J.A. 37.
After extensive discovery, Verizon moved for summary
judgment. The district court granted the motion, dismissing
Francisco’s retaliation claim. From this order Francisco now
appeals.
II.
A party is entitled to summary judgment if it “shows
that there is no genuine dispute as to any material fact” and
that it “is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). Summary judgment is appropriate “against a party
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who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To resist
summary judgment, a nonmoving party “must do more than simply
show that there is some metaphysical doubt as to the material
facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986), and the party “cannot defeat summary
judgment with merely a scintilla of evidence,” Am. Arms Int’l v.
Herbert, 563 F.3d 78, 82 (4th Cir. 2009).
We review de novo a district court’s granting of
summary judgment, viewing the facts in the light most favorable
to the nonmoving party. Laughlin, 149 F.3d at 258.
III.
Title VII’s retaliation provision forbids “an employer to
discriminate against any of his employees . . . because [the
employee] has opposed any practice made an unlawful employment
practice.” 42 U.S.C. § 2000e-3(a). We have endorsed a familiar
three-step framework when assessing Title VII retaliation
claims. Laughlin, 149 F.3d at 258. First, the plaintiff must
show, by a preponderance of the evidence, a prima facie case of
retaliation. Id. The burden then shifts to the defendant “to
rebut the presumption of retaliation by articulating a non-
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retaliatory reason for its action.” Id. If the defendant
successfully rebuts, the presumption of retaliation “drops from
the case” and the plaintiff bears the ultimate burden. Id.(internal quotation marks omitted).
To establish the necessary prima facie case of
retaliation, a plaintiff must demonstrate “(1) that she engaged
in protected activity, (2) that an adverse employment action was
taken against her, and (3) that there was a causal link between
the protected activity and the adverse employment action.” Id.Because we conclude that Francisco has failed to satisfy the
causation prong, we need not assess the remaining two elements.
To demonstrate the requisite “causal link between the
protected activity and the adverse employment action,” id., a
plaintiff must generally show at the very least that the
termination occurred after the decision-making authority became
aware of the employee’s grievance, see Williams v. Cerberonics,
Inc., 871 F.2d 452, 457 (4th Cir. 1989). The undisputed facts
show that Francisco fails to meet this most basic element of the
causation prong.
Only two individuals at Verizon exercised direct
control over Francisco’s termination--Albert and Nuckles. The
undisputed facts show that Albert did not learn of Francisco’s
complaint until March 11, 2008, five days after Francisco was
notified that she would be laid off. Nuckles completed her
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involvement in Francisco’s termination by giving input to Albert
in the first or second week of January 2008. This was at least
a week before she learned of Francisco’s complaint on January
24. * Although the human resources and legal departments also had
a role--albeit a most formal role--in approving Francisco’s
termination, Francisco does not allege that any individuals in
those departments knew of her complaint.
Thus, short of innuendo and conclusory allegations of
a vast conspiracy, Francisco is unable to present more than a
“scintilla of evidence” that any of the decision makers knew of
her complaint prior to her official termination. Her claim
inexorably fails, and summary judgment is appropriate. We
therefore affirm the judgment of the district court.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
*
Verizon disputes this date, contending that Nuckles did not
learn of Francisco’s complaint until November 2008. In support
of the earlier date, Francisco points to Shutler’s deposition
wherein she testified that Nuckles talked to her about
Francisco’s complaint on January 24, 2008. Shutler, however,
almost immediately corrected herself, testifying that she meant
to identify Francisco as the person who informed her about the
complaint. We think it obvious from the context of Shutler’s
testimony and her clarifying remarks that Shutler misspoke, but
we nevertheless follow the district court’s lead in assuming
that Nuckles learned of the complaint on January 24.
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before the court and argument would not aid the decisional
process.
AFFIRMED
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