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Is refusal to be “zombie” grounds for termination? can’t get a lawyer in Greensboro?

March 14, 2013

Last week, March 7, Magistrate Judge L. Patrick Auld of North Carolina decided on a motion from plaintiff in a wrongful termination suit seeking court-appointed legal assistance. The Court denied the motion, a holding that will require plaintiff to retain private counsel or present her case on without legal representation. The opinion seems to imply that this particular plaintiff will be relatively competent to self-represent because she is educated … as a nurse.!?! And the Court writes that plaintiff’s claim that she is only able to pay a lawyer on contingency is not a claim that she is unable to pay. And her prior lawyer’s unwillingness to work on contingency seems taken as implied weakness of her claim.

Meanwhile, the claim also alleges facts that provide non-discriminatory basis for the termination, particularly what sounds like disobedience and inability to perform work duties. This is where the “zombie” quote comes in — plaintiff refused to be her boss’s zombie and she could not help lift a heavy patient. It seems maybe a fair question as to whether this particular job could be restricted to people who can lift over 200lbs but the issue of the “zombie” disobedience seems related to legal compliance with health laws. This particular plaintiff seems like maybe she was a whistleblower who was terminated because she wouldn’t break rules the way her boss wanted. Is refusal to be a “zombie” grounds for termination?


No. 1:13CV68.

United States District Court
for the Middle District of North Carolina

March 7, 2013.

Opinion by: United States Magistrate Judge L. Patrick Auld


This case comes before the Court on Plaintiff’s Motion for Help with Attorney Representation (Docket Entry 7). (See Docket Entry dated Feb. 8, 2013.) For the reasons that follow, the Court will deny the instant Motion.


Liberally construed, the Amended Complaint asserts these claims:

1) discrimination based on national origin, in the form of both hostile work environment and termination of employment, premised on the allegation that a “Charge Nurse[,] who [is] . . a Sierra Leonian [whereas Plaintiff is] a Nigerian[,] said hateful and racial things to [Plaintiff] like: Nigerians are carnivals [sic] . . . because [the Charge Nurse’s] aunt married a Nigerian and now she got [sic] missing” (id. at 6; see also id. at 5 (alleging, under heading “Harrassment [sic],” that Charge Nurse “berated [Plaintiff] in the presence of [her] patients that [she] didn’t know what [she was] doing[,] . . . slapped [Plaintiff’s] wrist and statched [sic] things from [her] hand[,] . . . [and] hid away [Plaintiff’s] documentations [sic] on a new admit . . . [before] show[ing] up with the papers and screem[ing] [sic] so loudly at [her] in the hallway [‘]what is your problem[‘] . . . and then throw[ing] the papers at [her] . . . in front of all the staff”), 8 (asserting that Charge Nurse “got [Plaintiff] fired”));

2) discrimination based on “disability,” in the form of both hostile work environment and termination of employment, premised on the allegations that A) Plaintiff has a “limitation of not lifting anything over 50 lbs as ordered by [her] doctor following an injury on [her] former job in 2010,” B) an “[A]ssistant [C]harge [N]urse . . . asked [Plaintiff] to help her with a patient . . . [who] weighed . . . 200-300 lbs so [Plaintiff] told [the Assistant Charge Nurse that Plaintiff] could not do it by [her]self,” C) the Assistant Charge Nurse “got so mad and she went and called [the Charge Nurse] and reported [Plaintiff],” and D) “[s]ince then [the Charge Nurse] screemed [sic] and yelled at [Plaintiff] at any time [Plaintiff] interacted with [the Charge Nurse]” (id. at 7; see also id. at 5 (setting out, under heading “Harrassment [sic],” alleged abuse by Charge Nurse), 8 (asserting that Charge Nurse “got [Plaintiff] fired”)); and

3) retaliation, in that “[o]n October 15th 2012 [Plaintiff] started working with Davita [Dialysis Inc.] . . . [and a] week into [her] orientation [she] received a message . . . that [she] should report to [Defendant Hospital; however, the next day] . . . [Plaintiff] received a call on [her] cell phone from the manager [at Davita Dialysis] stating that [Plaintiff] should leave [Defendant Hospital] immediately because [Defendant Hospital] called and told [the Davita Dialysis manager] that [Plaintiff] could not work on any of [Defendant Hospital’s] patients because [she] was terminated and [she] had filed charge [sic] against [Defendant Hospital] with the EEOC . . . and [later that day the Davita Dialysis manager] said since [Plaintiff] ha[d] filed charge [sic] against [Defendant Hospital the Davita Dialysis manager] no longer could have [Plaintiff and,] . . . [o]n the 5th of November 2012, [Davita Dialysis] fired [Plaintiff]” (id. at 11-12).

In footnote:

6 The instant Motion does state that Plaintiff “will be willing to pay the lawyer assigned to [her] after the case is over if need be.” (Docket Entry 7 at 1.) That statement, however, fails to assert that Plaintiff could not afford to pay an attorney before the case ends; at most, it implies an unwillingness by Plaintiff to compensate counsel until the conclusion of the case, i.e., a preference by Plaintiff for a contingency arrangement. Moreover, it appears Plaintiff, in fact, secured counsel for purposes of proceedings before the EEOC, but that said counsel declined to handle the litigation in this Court because “she was too busy to take [the] case.” (Id.)

But also:

In addition, the Amended Complaint acknowledges the existence of an explanation for the conflict between Plaintiff and the Charge Nurse totally unrelated to bias premised on national origin or disability: “I believe [the Charge Nurse] was afraid that I am not going to be pushed to do unlawful things like she enjoys doing [such as not wearing gloves as required] and so she wanted to get rid of me quickly. . . . It was only the Charge Nurse who had told me anything [critical of my job performance] and since she was not happy because I don’t just follow her like a zombie, she must have reported me and wanted me fired.” (Docket Entry 8 at 9; see also id. at 3-4 (describing two incidents in which Plaintiff challenged directives from the Charge Nurse that Plaintiff viewed as jeopardizing patient welfare and then sought to have a physician assistant (on one occasion) and a doctor (on the other) overrule the Charge Nurse), 10 (complaining that Charge Nurse slept while on duty).)


Plaintiff’s prospects appear better than most, because, as a registered nurse, she “is an educated individual who is capable of presenting h[er] case in a competent fashion,” Young, 911 F. Supp. at 212.


even viewing the question of whether Plaintiff diligently has attempted to hire an attorney as at equipoise, the balance of relevant factors heavily tilts against her instant request for appointment of counsel.

From → corporations, jobs, money

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