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PHILLIPS v. HOLLADAY PROP. SERVS.

August 20, 1996

JENNIFER M. PHILLIPS, Plaintiff,
v.
HOLLADAY PROPERTY SERVICES, INC., Defendant.



The opinion of the court was delivered by: RICHEY

 INTRODUCTION

 ORDER

 BACKGROUND

 This case was originally filed on May 3, 1996. On May 17, 1996, the Court held a Rule 16 status and scheduling conference, and thereafter granted Plaintiff leave to amend her Complaint and issued a scheduling order setting deadlines for discovery, as well as the pre-trial and trial dates. The Court now has before it the Defendant's Motion for Partial Summary Judgment pursuant to Fed. R. Civ. P. 56. Following discovery, the Defendant now asserts that there are no material facts in dispute with regard to Plaintiff's discrimination claims under Title VII of the Civil Rights Act of 1964, as amended. The Court agrees, and therefore dismisses Plaintiff's Title VII claim premised on race and national origin discrimination, with prejudice.

 In this case, Plaintiff, a former nursing assistant at the Georgetown Retirement Home ("the Georgetown") which is operated by Defendant, claims that she was fired due to her race (African-American) and national origin (Jamaican). See Amended Complaint at P 1. Defendant claims that the basis of Plaintiff's termination was insubordination, specifically her failure to lower her voice and "cool it" at a meeting with her supervisor (Ms. Cebe Vicino), even though Ms. Vicino had warned her two times about this behavior. See Deposition of Connie Finney at 21:12-18 and Defendant's Exhibit "E". Plaintiff admits that only minutes after Ms. Vicino terminated Plaintiff, she (1) returned to Ms. Vicino's office and said, "I am praying for you" and "You are nothing but a bitch;" and (2) gained access to the intercom system, dialed Ms. Vicino's office and again said, "You are nothing but a bitch." See Plaintiff's Deposition at 178:1 to 181:6.

 Plaintiff denies that she raised her voice before Ms. Vicino fired her. See Plaintiff's Deposition at 160:18 to 161:6. Furthermore, Plaintiff testified at her deposition that she believes she was terminated because Ms. Vicino mistakenly thought that Plaintiff had defaced a company document. See id. at 165:9-10; 205:10-12. Plaintiff also testified that she believes that she was terminated because Defendant mistakenly thought that Plaintiff was supposed to work on a particular Saturday, a day on which Plaintiff did not in fact work. See id. at 189:3-9.

 II.

 DISCUSSION

 A. Plaintiff's Burden of Proof

 To avoid summary judgment, Plaintiff must satisfy the tripartite framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817, and reaffirmed in St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S. Ct. 2742, 2747, 125 L. Ed. 2d 407. Initially, Plaintiff must make out her prima facie case by showing that (1) she belongs to a protected class or classes; (2) she was qualified for the position of nursing assistant at the time of her termination; (3) she was terminated; and (4) after her termination, her position remained open and was ultimately filled by someone outside of the protected classes.

 The parties do not dispute that Plaintiff has satisfied all of the elements of her prima facie case for her national origin claim. However, they do dispute whether Plaintiff has satisfied the fourth element on her race discrimination claim, because Plaintiff's successor was an African-American. *fn1" The Court finds that Plaintiff's replacement by an African-American does not necessarily preclude her from establishing a prima facie case. See Edwards v. Wallace Community College, 49 F.3d 1517, 1521 (11th Cir. 1995) (holding that a race-discrimination plaintiff may establish a prima facie case of discrimination despite the fact that the employer hired someone from the same protected class to fill the vacancy left by the plaintiff); accord Lockley v. Chao, 812 F. Supp. 246, 250 n.5 (D.D.C. 1993) (Revercomb, J.). To make out her prima facie case, however, Plaintiff must come forward with some evidence showing that "a comparable non-protected person was treated better," i.e., that non-Blacks were not terminated "for the same or similar conduct." Mitchell v. Toledo Hosp., 964 F.2d 577, 582-83 (6th Cir. 1992). As discussed below, Plaintiff has not made this showing.

 Assuming, arguendo, Plaintiff has made out a prima facie case of race and national origin discrimination, the second step of the McDonnell Douglas framework requires Defendant to articulate -- but not prove -- that it discharged Plaintiff "for a legitimate, nondiscriminatory reason." Hicks, 509 U.S. at 507, 113 S. Ct. at 2747 (quotation omitted). Defendant has met this de minimus burden by asserting that Plaintiff was terminated for insubordination. Plaintiff does not contest that Defendant has met its burden in her Opposition. Additionally, at her deposition, Plaintiff admitted that if she were insubordinate and disrespectful to Ms. Vicino, that such conduct would ...


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