Petition for Writ of Certiorari — Lisa Antoine, Petitioner v. Delancy LLC, dba Vital Medical Staffing

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IN THE UNITED STATES DISTRICT COURT |i

FOR THE WESTERN DISTRICT OF NORTH CART JNA

CHARLOTTE DIVISION

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3:20CV523

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LISA ANTOINE

Plaintiff,

Vs.

DELANCY LLC d/b/a VITAL

MEDIC AL STAFFING and

JURNEY’S OF STATESVILLE,

Defendants.

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ORDER

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This matter is before the Court upon the Parties’ cross motions for;summary judgment. A

hearing was held in this matter on July 13,2022. For the reasons stated in open court at the

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conclusion of the hearing,

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IT IS THEREFORE ORDERED that Plaintiffs Motion for Summary Judgment is hereby

DENIED, and Defendant’s Motion for Summary Judgment is hereby GRANTED.

Signed: July 13, 2022

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Graham C. Mullen

United States District Judge

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Case 3:20-cv-00523-GCM Document 65 Filed 07/13/22>: Page 1 of 1

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UNPUBLISHED

UNITED STATES COURT OF APPEALS |

FOR THE FOURTH CIRCUIT

No. 22-1755

LISA ANTOINE,

Plaintiff - Appellant,

v.

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DELANCY LLC, d/b/a Vital Medical Staffing,

Defendant - Appellee.

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Appeal from the United States District Court for the Western District of North Carolina, at

Charlotte. Graham C. Mullen, Senior District Judge. (3:20-cv-00523-GCM)

Submitted: December 15, 2022

Decided: December 19, 2022

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Before GREGORY, Chief Judge, and WILKINSON and DIAZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

Lisa Antoine, Appellant Pro Se.

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Unpublished opinions are not binding precedent in this circuit.

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Case 3:2Q-cv-Q0523-GCM Document 70 Filed 12/19/22 Page 1 of 2

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FILED: December 19, 2022

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

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No. 22-1755

(3:20-cv-00523-GCM)

LISA ANTOINE

Plaintiff - Appellant

v.

DELANCY LLC, d/b/a Vital Medical Staffing

Defendant - Appellee

JUDGMENT

In accordance with the decision of this court, the judgment of the district

court is affirmed.

This judgment shall take effect upon issuance of this court's mandate m

accordance with Fed. R. App. P. 41.

/s/ PATRICIA S. CONNOR, CLERK

Case 3:20-cv-00523-GCM Document 70-1 Filed 12/19/22 Page 1 of 1

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PER CURIAM:

Lisa Antoine appeals the district court’s order granting Defendant summary

judgment and denying Antoine summary judgment on Antoine’s discrimination and

retaliation claims, brought pursuant to Title VII of the Civil Rights Act of 1964,42 U.S.C.

§§ 2000e to 2000e-17, and the Age Discrimination in Employment Act, 29 U.S.C. §§ 621

to 634. We have reviewed the record and find no reversible error. Accordingly, we affirm

the district court’s order. Antoine v. Delaney LLC, No. 3:20-cv-00523-GCM (W.D.N.C.

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July 13, 2022). We dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before this court and argument would not aid the

decisional process.

AFFIRMED

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Case 3:2Q-cv-G0523-GCM Document 70 Filed 12/19/22 Page 2 of 2

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APPENDIX B

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IDENTIFICATION

CARD

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000034146224

12/10/1992

12/10/2022

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marshall

ERIC TERELL

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A. Wooten, Alexandra

B. 02/09/1990

C. Female

D. 06/14/2018

E. CNA

F. 12/03/2018

G. NO CALL NO SHOW

H. Charly Lindsey, Manager

I. Delaey Lindsey, Director

J. N/A

A. Wright, Leathia

B. 12/04/1981

C. Female

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D. 08/27/2018

E. LPN

F. 01/25/2019

G. NO CALL NO SHOW

H. Charly Lindsey, Manager

I. Delaey Lindsey, Director

J. N/A

11. Submit all documents related to Respondent’s employment of Eric Marshall, including but

not limited to all personnel files (both formal and informal), applications, evaluations,

counseling forms, disciplinary actions (both formal and informal), termination paperwork,

and any and all emails where Marshall’s employment was discussed. If said information

is in a separate file, please produce that file.

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See Response 11 - Eric Marshall’s employment file

12. Identify all Respondent employees assigned to work at the same location during the same

shift as Charging Party (including full time, part time, or through a staffing agency) at any

time during the period of March 5,2019 through March 29,2019, please provide the

following in a sortable excel spreadsheet using clearly labeled headers:

An indication If ssld

Date and shift that

Current £mp Date of Reason no longer

emphad super auth

they worked together

Status

Separation

employed.

over charging party.with lisa Antoine

EricT- Marshal!

Certified Nursing Assistant 12/10/1991 Male 6/15/2017

No

Terminated 2/7/2020 poor attendance

3-23-19; 7a-3p

Zykisha Brown.Allen Certified Nursing Assistant 1/22/1991 Female 6/30/2017

No

Active

N/A

N/A

3-27-19; 7a-3p

Full Name

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lob Title

Date of

Birth

Sex

Date of

Hire

a. Full name;

b. Job title;

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c. Date of birth:

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d. Sex;

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e. Date of birth;

f. An indication if said employee had supervisor authority over Charging Party;

g. Current employment status;

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h. Date of separation (if applicable); and

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i. Reason no longer employed (if applicable).

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13. Identify each complaint or report made by any other individual to any supervisor,

manager, Human Resources representative, or owner regarding Eric Marshall during

the relevant time period. For all complaints, provide the following information:

No complaints during this time frame.

a. Full name, sex, age, and job title of the individual who made the complaint or

report;

b. Name and job title of all supervisors or managers who were involved in the

complaint or were in the direct line of supervision of the individual who made

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the complaint or report;

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Vital Medical Staffing Rebuttal

Jurney's of Statesville Rebuttal

May 24, 2019

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I was going to work for them (Jurney's) for a month and I don't know how they can say I am not

their employee. I was at The Crossing at Steele Creek and I did good work before Jurney's. I

been doing this for 20 years. There was another incident with someone from another staffing

agency when I was at Steele Creek. An unknown girl from Favorite staffing came to work with

an attitude. The next day the girl from the Favorite staffing agency called vital staffing and

reported me and Candy Robinson, another PCA. Candy went down and talked to the supervisor

at Crossing and the supervisor said Vital called them about incident. The employees of the

facilities be upset because the staff workers get $8/hr. but staffing agency people get

$14-15/hr. Vital said I was getting burned out and moved me to Journey's. I didn't ask to move

over there and they didn't give me a reason as to why they were sending me there.

I was

working for 40 hours at Steele Creek. I took the job at Jurney's because I was buying a house.

Vital knew I was going to school to start my own agency. I feel insulted about their attack on

my credibility.

How many times did you work at Jurney's?

I can print all the places I worked.

Did you work only 4 days at Jurney's that month?

I worked more than that. I was there for 3 weeks. I have timesheets to show that I worked

more than 4 times.

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Tell me about the allegations about feces and patients not being changed.

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I always get my timesheet completed. The nurse would not sign off on my timesheet for the

day if I had not got my residents finished. The only incident I remember about feces

was Vital

said my partner Keisha and I didn't change the resident and left them in feces.

On Wed, Keisha

and I worked together. There was another girl who was an actual employee who didn't want to

work with Keisha, so I told Keisha to work with me that day. I don't remember who she was

that didn't want to work. We worked all the patients and when I left,

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Keisha worked a double

on the same hail. How could we leave patients soiled if she was there from 7-3pm and 3-llpm?

They said a med tech had to clean up behind us, another CNA from another shift would have to

clean the patient. Med techs don't clean patients. Keisha worked the next shift and she would

have to take over once I left. She couldn't leave people unattended when working both shifts.

Tell me about sexual harassment incident?

Me and Eric work a lot of different places together. I knew he was attracted to me and he knew

I was married. At the Regency location we worked at, he made it known he wanted to have sex.

I told him 1 don't have random sex and I'm married. At the job, he walked over to me and he

backed up on me and put his penis on my butt and said, "You want to suck it?" He said that in

front of the patient. I jumped back and said, "I'm a married woman." He jumped back. He

better be glad I didn t punch him. I saw him again on Sunday and he didn't do any rounds with

me.

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Vi complained to Miss Byers, the Supervisor in Charge, immediately. Eric started acting funny

and wouldn't help me out after I rejected his advances. I told Miss Byers immediately that Eric

just sexually harassed me, and he put himself against me and is not helping me. Byers called

Eric over there and I was still standing there. -1 didn't argue with him because I didn't want the

employer to call the staffing agency get me in trouble. I called Vital and they didn't answer the

phone. I left a message on the weekend and I sent a text message to Lindsey Charlie at Vital.

She never called me back. I felt like they didn't take me seriously. Every time I made a

complaint to Vital about unsafe situations, they did not address it.

Erica Sanders from Vital called and told me that another CNA was working together with

me

and we left the resident in feces and I was outside listening to music. MS. Sanders didn't tell

me

who called or said what from the facility. Sanders is new, and I have nevlr received corrective

action for poor performance.

Do you know if corrective action was taken?

He was 26 years and even if I was attracted to him, he's a kid.

When no one responded to your complaint?

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No one because the next day they fired me.

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When did the harassment occur?

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On the 23rd, Saturday.

The two years I worked with Vital, no one knows what they are doing in that office. There were

other complaints by other staff employees regarding how they were getting paid by Vital. They

said I had 6 performance violations. I never was notified about them. I worked hard and make

beds military style. I gave a superior work award by the physical therapy area and they only

want to tell bad things. I read some of the position statement but not all of it because I know

they are not honest.

That March 28th allegation that they put me in inactive status. I always take care of my

residents and do my documentation. They have no statements and it's hot documented so its

hearsay.

December 28th issue was when that lady had diarrhea. The lady kept having to go the bathroom

and she apologized repeatedly and I told the patient it is ok. The women wanted to go to the

hospital and the facility wouldn't take her. I asked for Imodium for the patient. I reported this

to Vital. Jurney's did not report this to Vital Staffing. I did the best I could. Why didn't they say

anything to me about this?

That is not true on March 7th. One of the residents cooked chicken in the microwave,

I ran to

the room and took the resident out the room and went back in and opened the window.

Darrell Wright, another CNA from Favorite Staffing called Vital and madt; that complaint about

me. Vital didn't take my story in consideration. When I asked the supervisor at Jurney's, she

said she didn't report me to Vital Staffing but Vital said Jurney's contacted them,

These are all

mixed messages but I'm not being calling into the office or written up. i

On March 11th, that allegation is not true. I was told that I complained about the residents

. I

was working with Frances (she works for Vital) and they were her patients. They said I made a

nurse go home. The nurse went home and didn't come back. Most of the people are HIV+ and

it is a skill facility at the Bryan Center. I didn't make that lady go home. I don't know how Vital

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got this information.

There are saying on March 28th, Ms. Lindsey informed me that I was terminated. Ms. Lindsey

did not contact me. Ms. Sanders from Vital was the person who contacted me and informed

me that I was terminated. Ms. Sanders was also the person I contacted about Eric's sexual

harassment.

They hire you and put you straight to work. Vital gets the older ones out and the younger

generation who wants to make money and don't ask any questions. They never gave us policy

or procedures about the contracts.

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APPENDIX D

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Charlotte District Office

129 West Trade Street, Suite 400

Charlotte, NC 28202

Intake Monnation Group: 800-669-4000

Intake Monnation Group TTY; 800-669-6820

Charlotte Status Line: (866) 408-8075

Direct Dial: (704) 344-6686

TTY (704) 344-6684

FAX (704) 954-6410

Website: wtvtv.ecoc.gov

March 24, 2020

VIA Respondent Portal and Email

Vital Medical Staffing

c/o Anna Westmoreland

anna@,wesfmorelandlegalnc-com

RE: Lisa Antonie v. Vital Medical Staffing

EEOC Charge No. 430-2019-01515

Dear Ms. Westmoreland:

The Commission has determined that further information is needed to make a determination based

upon the merits of the charge. Therefore, Vital Medical Staffing is hereby requested to submit

information and records relevant to the subject charge of unlawful employment practices as related

to Title VII of the Civil Rights Act of 1964, as amended and the Age Discrimination in

Employment Act of 1967. The Commission is required by law to investigate charges filed with it,

and the enclosed request for information does not necessarily represent the entire body of evidence,

which we need to obtain from your organization in order that a proper determination as to the

merits of the charge can be made.

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and/or electronic data.

SStSSSSsHSSSigi

1.

2.

State the foil legal name and address of the facility named in the charge.

Provide the job title, duties, and description for all job positions Charging Party held at

any time during her employment.

Page 1 of 6

' 3. Submit a complete copy of Respondent’s employee handbook and any other employment

policies that were applicable at the time Charging Party was employed. Include Charging

Party’s signature page, if applicable.

4. Submit all documents related to Respondent’s employment of Charging Party including

but not limited to all hiring documents, job applications, personnel files (both formal and

informal), applications, evaluations, counseling forms, time sheets, disciplinary actions

(both formal and informal), termination paperwork, memoranda, and any and all emails

where Charging Party’s employment was discussed. If said information is in a separate

file, please produce that file.

5. Describe how Respondent’s Position Statement Exhibit 6, “Commission Mandated

Educational In-Services” applies to Respondent employees.

6. Submit any and all documents relating to Charging Party being placed on “inactive” status

for six months on or around March 28,2018.

7. For any and all “oral discipline” referenced within Respondent’s Position Statement,

Section 3, provide the following:

a. Full name, job title, and employer of the individual(s) issuing the oral discipline;

b. Any and all documentation enforcing the need for said discipline; and

c. Any and all documentation relating, referencing, or reflecting the oral discipline.

8. Identify each complaint or report made by any other individual to any supervisor,

manager, Human Resources representative, or owner regarding Charging Party at any

time during her employment. For all complaints, provide the following information:

a. Full name, job title, and medical facility (or client) of the individual who made

the complaint or report;

b. Name and job title of all supervisors or managers who were involved in the

complaint or were in the direct line of supervision of the individual who made

the complaint or report;

c. All documents, emails, email attachments, text messages, and instant messages

which state, describe, reference, or relate to the individual’s complaint or report;

d. Description of what action, if any, Respondent took in response to the complaint

or report; and

e. A copy of all investigation notes and documents, to include witness testimonies

and statements related to or that reference the complaint or report.

9. Submit any and all information relating to Charging Party’s discharge. Including, but not

limited to:

a. Date of discharge;

b. Full name, job title, sex, and age of all individuals who requested the discharge,

c. Full name, job title, sex, and age of the individual who made the final decision to

discharge Charging Party; and

d. Copies of any and all documents relating to Charging Party’s discharge.

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10. Identify all employees who were discharged for at any time during the time period of

October 1,2018 through the present. For each person identified, provide the following

information:

a. Full name of each employee discharged;

b. Date of birth;

c. Sex;

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d. Date of hire;

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e. Job title hired into;

f. Date of discharge;

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g. Reason for discharge;

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h. Full name of direct supervisor;

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Full name and job title of any and all individuals involved in making the

decision to discharge the employee; and

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j. All documents which relate to the discharge of the employees identified.

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11. Submit all documents related to Respondent’s employment of Eric Marshall, including but

not limited to all personnel files (both formal and informal), applications, evaluations,

counseling forms, disciplinary actions (both formal and informal), |ermination paperwork,

and any and all emails where Marshall’s employment was discussed. If said information

is in a separate file, please produce that file.

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12. Identify all Respondent employees assigned to work at the same Ideation during the same

shift as Charging Party (including full time, part time, or through a- staffing agency) at any

time during the period of March 5, 2019 through March 29, 2019, please providejhe

following in a sortable excel spreadsheet using clearly labeled headers:

a. Full name;

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b. Job title;

f.

c. Date of birth;

d. Sex;

e. Date of birth;

f. An indication if said employee had supervisor authority over Charging Party;

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g. Current employment status;

h. Date of separation (if applicable); and

i. Reason no longer employed (if applicable).

13. Identify each complaint or report made by any other individual to any supervisor,

manager, Human Resources representative, or owner regarding Eric Marshall during

the relevant time period. For all complaints, provide the following information:

a. Full name, sex, age, and job title of the individual who made the complaint or

b

Name’and job title of all supervisors or managers who Were involved m the

complaint or were in the direct line of supervision of the individual who made

the complaint or report;

c. All documents, emails, email attachments, text messages, and instant messages

which state, describe, reference, or relate to the individual’^ complaint or report,

d. Description of the complaint or report;

Page 3 of 6

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e. Description of what action, if any, Respondent took in response to the complaint

or report; and

f. A copy of all investigation notes and documents, to include witness testimonies

and statements related to or that reference the complaint or report

14. Identify each complaint or report made Charging Party to any supervisor, manager,

Human Resources representative, owner, or anyone else during the relevant time

period. For all complaints, provide the following information;

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a. Name and job title of all individuals who were involved in the complaint or

were in the direct line of supervision of the individual who made the complaint

or report;

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b. All documents, emails, email attachments, text messages, ahd instant messages

which state, describe, reference, or relate to the individual’s complaint or report;

c. Description of the complaint or report;

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d. Description of what action, if any, Respondent took in response to the complaint

or report; and

e. A copy of all investigation notes and documents, to include Witness testimonies

and statements related to or that reference the complaint orj report.

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If we do not receive the requested information by the date specified, we may proceed to subpoena

the requested information. The EEOC is authorized by Title VII — Section 710 to issue a subpoena

compelling the production of the information in the event of non-compliance by a Respondent.

The confidentiality of information provided during investigations is governed by 42 U.S.C. §

2000e-8(d) and (e) and EEOC regulations contained at 29 C.F.R. § 1601.22. Availability of

records is governed by the Freedom of Information Act (‘ FOIA ), 5 U.S.C. § 552, and the EEOC

regulations pertaining to FOIA set forth at 29 C.F.R. § 1610. The EEOC cannot agree on

exemptions to disclosure that are contrary to law.

Additionally, find the enclosed Document Retention Notice Pursuant to Charge of Discrimination.

If you have any questions regarding the information the Commission is requesting or anything else

in this letter, please do not hesitate to communicate with me. I can be reached at (980) 296-1271

or rehecca.conwav@eeoc.gov.

Thank you for your assistance.

Sincerely,

Rebecca Conway

Federal Investigator

Page 4 of 6

Rete^nn Notice Pursuant to Charge nf DiserlmmaHott

YOU ARE HEREBY GIVEN

PAPER DOCUMENTS OR ELECTRONIC DA

STORED ON ANY COMPUTERSTORAG

BACKUP TAPES), THAT

ACCOMPANYING CHARGE OF

ma^DmODATA^GENERATE)BY OR

HARDDISKS FLOPPY DISKS,

c^ms AND DEFENSES IN THE

^ pLure TO COMPLY WITH THIS

.

igence CAN RESULT IN

So"“"—E

MONETARY PENALTIES AND OTHER COURT-IMPOSED ACTION.

A. Paper Document, to be Preserved: Hard-copy information which, should be preserved

includes, but is not limited to:

1. Personnel files;

2. Employee data;

3 Payroll information;

4. Personnel policies, procedures, and regulations,

c t etters memorandums, and notes,

6 AH complaints of discrimination or unfair treatment;

7 All documents related to internal investigations, and

subject matter of the charge of

All other documents containing information relevant to th

8.

discrimination

the Commission may still seek the same

Note that even where hard-copy documents exist,

information in an electronic format simultaneously.

: Electronic information which should be preserved includes

B. Electronic Data to be Preserved:

but is not limited to;

containing any referenc

information of your employees;

3'

mTo8,L f

4.

..del<,tecr files and file fragments containing

«0

3S2&*

subject matter of the charge of

where su

tter of the charge

5. ^"Scdamcontaminglnfonnation relevant to the subject ma

of discrimination.

Page 5 of 6

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APPENDIX E

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Vital wie^cAC smff=/w^ V:CiD5

SEXUAL HARASSMENT

Aii facilities approved by your staffing agency are committed to pro^ iding a work environment

that is free of discrimination and unlawful harassment. Sexual haras sment in the workplace is

unlawful, and H is unlawful to retaliate against an employee for filtnc a complaint of sexual

harassment or for cooperating in an investigation of such a complai it.

The facility will subscribe to the following guidelines concerning se? jal harassment and has

adopted them as guidelines. Alt forms of harassment of others due o race, color, religion, sex.

age, national origin, ancestry, sexual orientation, physical or menta handicap, veteran, or other

protected statute are prohibited and not tolerated in the workplace.

Tor the purposes of this policy, sexual harassment is defined as an f type of sexually-oriented

conduct, whether intentional or not, that is unwelcome and has the, furpose of creating a work

enviionment that is hostile, offensive, or coercive to a reasonable v, sman or man, as the case

may be. The following are examples of conduct that, depending up< n the circumstances, may

.constitute sexual harassment:

•

I. a) unwelcome and unwanted sexual jokes, language, epithi its, advances, or

propositions

b) written or oral abuse of a sexual nature, sexually degrad ig or vulgar words used to

,

describe an Individual

3. c) the display of sexually suggestive objects, pictures, post* rs, or cartoons

4. d) unwelcome and unwanted comments about an individua s body, sexual prowess, or

sexual deficiencies

3. e) asking questions about sexual conduct

6. f) unwelcome touching, leering, whistling, brushing against he body; or suggestive,

insuiting, or obscene comments or gestures; and

7, g) demanding sexual favors in exchange for favorable revie jvs, assignments,

promotions,

or continued employments, or promises of the same.

'

If you believe that you have been the subject of sexual harassment or subjected to a hostile

offensive, or coercive work environment, or if you are not certain w ether certain behavior is

sexual harassment or whether it is actionable under this policy, yoi. are strongly encouraged to

notify your immediate supervisor of Human Resources in the faciiit' as well as your staffing

company, so that the complaint may be investigated. An investigati >n of all complaints will be

undertaken immediately, and all information will be handled with th i highest degree of

confidentiality possible under the circumstances and with due rega ds for the rights and wishes

.

of all parties.

■