United States District Court, District of Columbia
Farnandon D. White, Plaintiff,
Washington Nursing Facility, Defendant.
P. Mehta United States District Judge
Farnandon D. White brought this lawsuit pro se
against his former employer Washington Nursing Facility
(“WNF”). He generally alleges that, as a black
male certified nursing aide (“CNA”), he was
treated differently from his mostly black female colleagues,
harassed, and ultimately terminated for filing charges of
discrimination with the Equal Employment Opportunity
Commission (“EEOC”). Rightly construing the
complaint as brought under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e, WNF contends that it is
entitled to summary judgment because White was fired for the
legitimate reason of falsifying resident care
records.See generally Def.'s Mot. for
Summ. J. [hereinafter Def.'s Mot.], ECF No. 36. White
counters that summary judgment is inappropriate because the
asserted reason is “contradictory and
pretext[ual].” Pl.'s Opp'n to Def.'s Mot.
for Summ. J. [hereinafter Pl.'s Opp'n], ECF No. 39,
on its review of the evidence, the court holds that no
reasonable jury could find that WNF's stated reason for
terminating White was a pretext for unlawful discrimination
or retaliation. The court also finds that White has failed to
carry his burden with respect to his hostile work environment
claim. The court therefore grants WNF's motion with
respect to the federal claims. Pursuant to 28 U.S.C. §
1367(c)(3), the court declines to exercise supplemental
jurisdiction over any remaining state law claims. See
generally Am. Compl., ECF No. 4 (asserting wrongful
termination and workplace harassment).
relevant time period, WNF was “a duly licensed and
certified skilled nursing facility in the District of
Columbia, ” subject to oversight by the D.C. Department
of Health. Def.'s Stmt. of Material Facts [hereinafter
Def.s' SMF], ECF No. 36, ¶¶ 1, 12. White
started his employment with WNF on June 21, 2010, working the
day shift-7 a.m. to 3:30 p.m. His job entailed assisting WNF
residents with their daily care and activities. White's
specific tasks included taking the residents' vital
signs; checking their diapers every two hours and, if
necessary, changing them; transferring the residents to and
from their beds and wheelchairs; and repositioning them on a
regularly scheduled basis to prevent bedsores. Def.'s Ex.
3, Deposition of Farnandon D. White [hereinafter White Dep.]
19-20, 30-31, ECF No. 36-1 at 11, 14; Def.'s Ex. 4, Decl.
of Nancy Casanas [hereinafter Casanas Decl.] ¶¶
14-16, ECF No. 36-1 at 30. In addition, White observed the
residents and reported any changes in their condition to the
nursing staff. White Dep. 28-29, ECF No. 36-1 at 13.
nursing aides were required to document the care provided
each resident throughout each shift, using a computerized
system known as Point of Care (“POC”). Def.'s
SMF ¶¶ 10-11. The POC system enabled the production
of reports on the specific care of each resident based on the
information entered by the aide; it also generated audit
reports, showing the actual time the aide entered the
information into the system. Id. ¶¶ 21-22.
The nursing aide accessed the system by entering his employee
code into a computer touch screen on the nursing unit. Once
in the system, the aide was provided a list of residents
assigned to him on that particular shift and each
resident's care needs. Id. ¶¶ 13-16.
Each task was identified by an icon on the computer screen,
which the aide pressed once the task was completed. The
system would then record the task as having been performed.
Id. ¶¶ 16-17. “Many of the CNA care
tasks, such as turning and repositioning and toileting, [were
required to] take place on a regularly scheduled basis
throughout each shift.” Casanas Decl. ¶16, ECF No.
26-1 at 30. Thus, the “expectation [was] that entries
[were] made into the system at or near the end of the
CNA's shift, when all care tasks to be completed on the
shift [were] in fact [ ] completed.” Def.'s SMF
February 2011 and June 2013, White received nine notices of
unacceptable conduct, and he received Job Performance
Employee Counseling on several occasions. Id.
¶¶ 39-53. Job Performance Employee Counseling
consisted of four tiers: Informal Counseling; Formal
Counseling; Second Formal Counseling and Final Warning; and
immediate discharge. Def.'s Ex. 7, WNF's Requests for
Admissions [hereinafter WNF's Req. for Admis.], Ex. 1,
ECF No. 36-1 at 55. On April 19, 2013, White received Formal
Counseling based on a nurse's report that he had failed
to feed a resident by 10:15 a.m., and a resident's
complaint that “he had left her exposed in bed while he
went to care for others.” Def.'s SMF ¶ 48. On
April 24, 2013, White received Second Formal Counseling and a
one-day suspension without pay based on a resident's
complaint that she had not received assistance more than six
hours after the day shift had begun. Id. ¶ 49.
White was then warned that he would be discharged if he
“continue[d] to display inadequate job performance
within the next six (6) months.” Id. ¶
50. White responded by disagreeing with “these false
accusation[s].” WNF's Req. for Admis., Ex. 6, ECF
No. 36-1 at 65. On June 27, 2013, White again received Second
Formal Counseling based on his failure to complete
distributing lunches to the residents in their rooms; he was
again warned that he would be discharged in six months if his
performance did not improve. Def.'s SMF ¶ 53. White
responded: “this is farther harassment by staffing and
management. I will submit written responses in a few
days.” WNF's Req. for Admis., Ex. 2, ECF 36-1 at
September 4, 2013, White, an African American man, filed a
charge with the EEOC, alleging discrimination based on his
race, color, sex, and national origin between January 1,
2011, and June 28, 2013, “and continuing.”
Def.'s Ex. 15, Not. of Charge of Discrimination, ECF 36-1
at 114. WNF Administrator Gail Jernigan received the EEO
complaint but “did not view [it] as being meritorious
because [White] was a black male and virtually one hundred
percent of the work force at WNF at the time was
black.” Def.'s Ex. 1, Decl. of Gail Jernigan
[hereinafter Jernigan Decl.] ¶ 17, ECF No. 36-1 at 4.
Jernigan “passed [the] EEO complaint on to corporate
counsel and gave it no further thought.” Id.
October 3, 2013, a POC Audit Report showed that White
“[had] documented that he had provided all of the care
for all nine of the residents assigned to him during the 7
a.m. to 3:30 p.m. shift by 9:23 a.m.-less than two and
one-half hours after the shift began and more than six hours
before it was over.” Casanas Decl. ¶ 22, ECF No.
26-1 at 31. The report further revealed that White had made
all of the entries between 8:49 a.m. and 9:23 a.m., even
though some of the care services “would had to have
been provided . . . throughout the day shift, as indicated by
the ‘Scheduled Time' column on the report.”
Id. ¶¶ 23-24. On that same day, in
consultation with WNF's Directors of Nursing and Human
Resources, Jernigan made the decision to terminate White
“for blatantly falsifying resident care information in
the POC system.” Jernigan Decl. ¶ 11, ECF No. 36-1
at 3; see White Dep. 27, ECF No. 36-1 at 13
(agreeing that he was terminated “for the
documentation”). The Facility's Employee Handbook
“specifies as grounds for immediate discharge willful
false recordkeeping and willful neglect of duty.”
Jernigan Decl. ¶ 14, ECF No. 36-1 at 3; Def.'s Ex.
9, Employee Handbook, ECF No. 36-1 at 102 (listing examples
of dishonesty that “normally will result in immediate
discharge from our employ, ” including “willful
falsification of any pay, time, business, expense or
his termination, White filed another charge with the EEOC on
October 22, 2013, asserting retaliation. Def.'s Ex. 16,
ECF No. 36-1 at 117. He also filed a grievance with Teamsters
Local Union 639 on October 6, 2013, claiming that his
termination was retaliatory and unjustified. WNF's Req.
for Admis., Exs. 13 and 14, ECF No. 36-1 at 79, 81.
January 29, 2014, the EEOC issued a Dismissal and Notice of
Rights, informing White that it could not conclude from its
investigation that any federal statutes were violated.
Def.'s Ex. 17, ECF No. 36-1 at 119. White initiated this
civil suit by lodging his complaint and a motion to proceed
in forma pauperis with the Clerk of Court on April
25, 2014. On September 15, 2014, the court denied WNF's
initial motion to dismiss the complaint as untimely. ECF No.