IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TEOFILO C. MATIAS,
Plaintiff,
v.
ELON UNIVERSITY,
Defendant.

)
)
)
)
)
)
)
)
)
)

1:17CV398

MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS, District Judge.
Plaintiff initiated this action against Defendant Elon University, his former employer,
alleging race discrimination in violation of 42 U.S.C. § 1981 (“§ 1981”) and 42 U.S.C. § 2000e
et seq. (“Title VII”). (ECF No. 1 ¶ 1.) Before the Court is Defendant’s Motion for Summary
Judgment, (ECF No. 19). For the reasons set forth below, Defendant’s motion will be granted.
I. 

BACKGROUND
Plaintiff, a Hispanic male, was hired by Defendant as a Custodian in 1999. (ECF No.

19 ¶ 10; ECF No. 19-1 at 1, 2.) In 2001, Plaintiff was promoted to Sanitation Recycling
Worker, in which his responsibilities included pulling trash and recycling from certain
buildings and areas. (ECF No. 19-1 at 3–4.) In 2005, Plaintiff was again promoted, this time
to Distribution Serviceman.

(Id. at 4.)

His responsibilities included inspecting fire

extinguishers and distributing and delivering custodial supplies. (ECF No. 19-3 at 7–8.)
According to Plaintiff, following this promotion, he asked his supervisor, Dave Worden, for

Case 1:17-cv-00398-LCB-LPA Document 27 Filed 11/26/18 Page 1 of 19

 a pay raise. (ECF No. 22-9 at 3.) Plaintiff testified that Mr. Worden responded, “You don’t
know how to do the job. How can I give you a raise? The only thing you know how to do is
make tacos.” (Id. at 3–4.) During Plaintiff’s tenure as Distribution Serviceman, he consistently
received good performance reviews, (see ECF No. 19-4), and his supervisors thought that “he
did good work” and that he had a “[s]trong work ethic,” (ECF No. 19-2 at 1; ECF No. 19-3
at 9). Plaintiff also served in a supervisory role on multiple occasions, including during
inclement weather and during a nine-week period when his direct supervisor was out on sick
leave. (ECF No. 22-9 at 5, 30.)
In or before August 2014, Plaintiff’s direct supervisor, Wayne Brown, who served as
Support Services Supervisor, announced his retirement.1 (See ECF No. 19-2 at 2; ECF No.
22-8 at 2.) Mr. Brown’s supervisor, Dave Worden, who was responsible for hiring his
successor, testified that he “[got] the word out” about the position to the employees in his
department. (ECF No. 19-3 at 4–5, 15.) Mr. Worden interviewed “[r]oughly half a dozen”
applicants for the position, although he testified that he was unsure if the position “ever
officially opened.” (Id. at 13, 15.) On August 11, 2014, Mr. Worden recommended Mark
Poole, a white male, for promotion to Support Services Supervisor. (ECF No. 1 ¶ 17; ECF
No. 22-8 at 2.)

1

The evidence does not reflect the exact date on which Mr. Brown announced his retirement, nor
does it reflect exactly when Mr. Worden began soliciting applicants for the Support Services
Supervisor position. Mr. Brown testified, however, that he gave “three or four months” notice before
he officially retired. (ECF No. 19-2 at 2.) The evidence also shows that Mr. Brown’s successor, Mark
Poole, was recommended for the available position on August 11, 2014, (ECF No. 22-8 at 2), and
assumed the role of Support Services Supervisor in January 2015, (ECF No. 22-15 at 2, 16).

2
Case 1:17-cv-00398-LCB-LPA Document 27 Filed 11/26/18 Page 2 of 19

 At some point after Mr. Brown’s announcement, when Plaintiff attempted to view the
job posting for the Support Services Supervisor position through Defendant’s internal Human
Resources (“HR”) database, he learned that the position was not posted. (ECF No. 19-1 at
7.) In October 2014, Plaintiff asked Mr. Brown about the position and was informed that Mr.
Worden had already selected a candidate. (Id. at 8.) In November 2014, Plaintiff asked Mr.
Worden about the position, to which Mr. Worden responded that he had already selected Mr.
Poole. (Id. at 8–9.) According to Plaintiff, Mr. Worden also made the following remarks:
“Why you not happy? You just want some money? You looking to make more money?” and
“You guys, Mexicans, you want everything. You just want money.” (ECF No. 22-9 at 10, 31.)
Over a year after the promotion decision was made, in February 2016, Plaintiff was
accused of sexual harassment by a coworker, Kimberly Ward. (ECF No. 19-8 at 1.) The
matter was initially brought to the attention of HR by two supervisors, Donnell Jeffries and
Dave Worden. (ECF No. 19-7 at 1.) Ms. Ward complained that Plaintiff had given her gifts
and attempted to kiss her on multiple occasions. (ECF No. 19-8 at 2–3.) Carla Ugboro,
Associate Director of HR for Employee Relations, conducted an investigation in which she
interviewed Plaintiff, Ms. Ward, Mr. Jeffries, Mr. Worden, and six other witnesses. (Id. at 1–
8.) During Plaintiff’s interview, he claimed that he was “set up” by other coworkers who had
grudges against him. (Id. at 7.) Plaintiff also accused another supervisor, Kevin Bigelow, of
engaging in a relationship with a coworker, in violation of company policy. (Id. at 7–8.) As a
result of the investigation, Ms. Ugboro recommended Plaintiff’s termination “based on his
behavior and the environment that he created for [Ms. Ward].” (ECF No. 19-9 at 1.) Plaintiff
was terminated on February 12, 2016. (Id.; ECF No. 19-7 at 36.)

3
Case 1:17-cv-00398-LCB-LPA Document 27 Filed 11/26/18 Page 3 of 19

 Plaintiff subsequently filed a Complaint, alleging failure to promote based on his
Hispanic race in violation of § 1981 and discriminatory termination, also based on race, in
violation of Title VII and § 1981. (ECF No. 1 ¶¶ 17, 22.) Defendant has moved for summary
judgment on both claims, arguing that “there is no genuine issue of material fact regarding
Plaintiff’s claims.” (ECF No. 19 at 1.)
II. 

STANDARD OF REVIEW
Summary judgment is appropriate when “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). A dispute is “genuine” if the evidence would permit a reasonable jury to find
for the nonmoving party, and “[a] fact is material if it might affect the outcome” of the
litigation. Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 568 (4th Cir. 2015) (internal
quotation marks omitted). The role of the court is not “to weigh the evidence and determine
the truth of the matter,” but rather “to determine whether there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). When reviewing a motion for summary
judgment, the court must “resolve all factual disputes and any competing, rational inferences
in the light most favorable” to the nonmoving party. Rossignol v. Voorhaar, 316 F.3d 516, 523
(4th Cir. 2003) (quoting Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir.
1996)).
In cases where, as here, the nonmovant bears the burden of proof at trial, the party
seeking summary judgment bears the initial burden of “pointing out to the district court . . .
that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). If the moving party carries this burden, then the burden

4
Case 1:17-cv-00398-LCB-LPA Document 27 Filed 11/26/18 Page 4 of 19

 shifts to the nonmoving party to point out “specific facts showing that there is a genuine issue
for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The
nonmoving party must support its assertions by citing to particular parts of the record, or
showing that the materials cited do not establish the absence of a genuine dispute. Fed. R.
Civ. P. 56(c)(1); see Celotex, 477 U.S. at 324. The judicial inquiry on summary judgment “thus
scrutinizes the plaintiff’s case to determine whether the plaintiff has proffered sufficient proof,
in the form of admissible evidence, that could carry the burden of proof of his claim at trial.”
Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
III. 

DISCUSSION
A.  Failure to Promote Claim

A plaintiff may prove discriminatory failure to promote under § 19812 in one of two
ways: (1) by “demonstrating through direct or circumstantial evidence that [unlawful]
discrimination motivated the employer’s adverse employment decision[;]” or (2) by proceeding
under the burden-shifting framework of McDonnell Douglas.3 Hill v. Lockheed Martin Logistics
Mgmt., Inc., 354 F.3d 277, 284–85 (4th Cir. 2004), abrogated on other grounds by Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 570 U.S. 338 (2013); see also Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 249
(4th Cir. 2015). Here, Plaintiff proceeds under both methods. (ECF No. 22 at 11, 13.)
Defendant contends it is entitled to summary judgment on Plaintiff’s failure to promote
claim because Plaintiff can show neither direct evidence of discrimination nor a case for

2

“The same elements are required for failure-to-promote claims alleged under Title VII and § 1981.”
Williams v. Giant Food Inc., 370 F.3d 423, 430 n.5 (4th Cir. 2004).
3

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
5
Case 1:17-cv-00398-LCB-LPA Document 27 Filed 11/26/18 Page 5 of 19

 discrimination under the McDonnell Douglas analysis. (ECF No. 20 at 10–14; ECF No. 23 at
2–9.) Specifically, Defendant argues that there is no direct evidence of discrimination because
any discriminatory remarks allegedly made to Plaintiff by his supervisor, Mr. Worden, fail to
“illustrate [the required] nexus between that motive and the adverse employment action.”
(ECF No. 23 at 3–4 (internal quotation marks omitted).) Further, Defendant argues that
Plaintiff can neither prove a prima facie case of unlawful failure to promote nor show that
Defendant’s nondiscriminatory reason for hiring Mr. Poole was a pretext for discrimination.
(ECF No. 20 at 10–14; ECF No. 23 at 5–9.)
Plaintiff, in response, argues that there is evidence of discrimination based on Mr.
Worden’s discriminatory remarks, which have a nexus with the adverse employment action
against Plaintiff. (ECF No. 22 at 11–13.) Plaintiff also argues that, with respect to the
McDonnell Douglas analysis, his failure to apply for the Support Services Supervisor position in
a timely manner should be excused because “Defendant failed to make all eligible employees
aware of the Support Services Supervisor job vacancy.” (Id. at 14.) Further, Plaintiff argues
that Defendant’s nondiscriminatory reason for promoting Mr. Poole instead of Plaintiff is
simply pretext for discrimination. (Id. at 15.)
1.  Direct Evidence of Discrimination
To prove direct evidence of discrimination, a plaintiff must show “evidence of conduct
or statements that both reflect directly the alleged discriminatory attitude and that bear directly
on the contested employment decision.” Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th
Cir. 2006) (internal quotation marks omitted). The statements in question “must have a nexus
with the adverse employment action.” Id. “While isolated statements can constitute direct

6
Case 1:17-cv-00398-LCB-LPA Document 27 Filed 11/26/18 Page 6 of 19

 evidence of discrimination, the statements must be contemporaneous to the adverse
employment action.” McCray v. Pee Dee Reg’l Transp. Auth., 263 F. App’x 301, 306 (4th Cir.
2008). Courts have also considered “the context of the statement . . . and the status of the
person making the statement.” EEOC v. CTI Global Sols., Inc., 815 F. Supp. 2d 897, 906 (D.
Md. 2011).
Plaintiff argues that Mr. Worden made four statements that constitute evidence of
racial discrimination, (ECF No. 22 at 3–4), as follows:
1.  “You don’t know how to do the job. How can I give you a raise? The only
thing you know how to do is make tacos.” This statement was made after
Plaintiff inquired about a pay raise following his promotion to Distribution
Serviceman in 2005. (ECF No. 22-9 at 3–4.)
2.  “You guys, Mexicans, you want everything. You just want money.” This
statement was made in 2014, when Plaintiff inquired about the Support
Services Supervisor position. (Id. at 31.)
3.  “Why you not happy? You just want some money? You looking to make
more money?” and “What the [expletive]? You not happy where you at?”
These statements were also made in 2014 when Plaintiff inquired about the
Support Services Supervisor Position. (Id. at 10.)
4.  “All the time you begging for money, Teo. That’s the only thing you do.
And if you don’t drive those expensive Volvos, you shouldn’t be begging
for money.” This statement was made in response to Plaintiff’s inquiry
about a pay raise. (Id. at 12.)
As a preliminary matter, because the third and fourth statements do not include any
evidence of racial animus, they will not be considered as direct evidence of racial
discrimination. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (explaining that Title
VII is not a “general civility code” for the workplace (quoting Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 80 (1998))). The first statement, made in 2005, occurred approximately nine
years before the contested employment decision, i.e. the decision to promote Mr. Poole instead

7
Case 1:17-cv-00398-LCB-LPA Document 27 Filed 11/26/18 Page 7 of 19

 of Plaintiff to Support Services Supervisor. Courts have routinely found that statements made
in a shorter time frame were not “reasonably contemporaneous” to the adverse employment
action in question. E.g. McCray, 263 F. App’x at 303, 306 (holding that statements made two
and a half years before termination were not “reasonably contemporaneous” with the
termination decision); Gaines v. McDonald, 152 F. Supp. 3d 464, 470 (M.D.N.C. 2015) (holding
that a statement made approximately five months before termination was not
contemporaneous); but see Arthur v. Pet Dairy, 593 F. App’x 211, 212, 221 (4th Cir. 2015) (per
curiam) (holding that a statement made approximately three weeks before termination
“sufficiently tie[d] [the supervisor’s] alleged discriminatory intent to the relevant time period”).
Mr. Worden’s second statement was made in November 2014, approximately three
months after the promotion decision was made. (See ECF No. 22-9 at 31; ECF No. 22-8 at
2.) As discussed with respect to Mr. Worden’s 2005 statement, this latter statement also fails
to be sufficiently contemporaneous to serve as direct evidence of discrimination. See McCray,
263 F. App’x at 306; Nana-Akua Takyiwaa Shalom v. Payless Shoesource Worldwide, Inc., 921 F.
Supp. 2d 470, 484 (D. Md. 2013) (finding no direct evidence of discrimination based on
statements “made approximately two months prior to Plaintiff’s termination date and in a
context unrelated to Plaintiff’s employment status”); Jordan v. Radiology Imaging Assocs., 577 F.
Supp. 2d 771, 780 (D. Md. 2008) (holding that a statement made “several months after
Plaintiff’s termination[ ] was not contemporaneous with the decision to terminate Plaintiff and
did not directly relate to that decision”). The Court therefore concludes that Mr. Worden’s
statements do not constitute direct evidence of discrimination in the decision not to promote

8
Case 1:17-cv-00398-LCB-LPA Document 27 Filed 11/26/18 Page 8 of 19

 Plaintiff. Plaintiff has thus failed to provide sufficient direct evidence to permit a reasonable
juror to find that Defendant’s failure to promote Plaintiff was based on his race.
2.  McDonnell Douglas Framework
“The second method of averting summary judgment is to proceed under a ‘pretext’
framework, under which the employee, after establishing a prima facie case of discrimination,
demonstrates that the employer’s proffered permissible reason for taking an adverse
employment action is actually a pretext for discrimination.” Hill, 354 F.3d at 285 (citing Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53 (1981) and McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 807 (1973)). To establish a prima facie case of discrimination, Plaintiff
must establish that “(1) [he] is a member of a protected group, (2) there was a specific position
for which [he] applied, (3) [he] was qualified for that position, and (4) [Defendant] rejected
[his] application under circumstances that give rise to an inference of discrimination.” Williams
v. Giant Food Inc., 370 F.3d 423, 430 (4th Cir. 2004).
Once a plaintiff has demonstrated a prima facie case of discrimination, the burden
shifts to the defendant to “produce evidence that ‘if believed by the trier of fact, would support
a finding that unlawful discrimination was not the cause of the employment action.’” Gilmore
v. Holder, 616 F. App’x 546, 547 (4th Cir. 2015) (per curiam) (quoting St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 507 (1993)). Once the defendant meets its burden of production, “then
the presumption created by the plaintiff’s prima facie case ‘drops out of the picture,’ and the
burden shifts back to the plaintiff to present evidence from which a reasonable juror could
conclude that the reason proffered by the defendant was a pretext for discrimination.” Id. at
548 (quoting Hicks, 509 U.S. at 511). To meet its burden, the plaintiff must prove “both that

9
Case 1:17-cv-00398-LCB-LPA Document 27 Filed 11/26/18 Page 9 of 19

 the reason was false, and that discrimination was the real reason.” Adams v. Trs. of the Univ. of
N.C.-Wilmington, 640 F.3d 550, 560 (4th Cir. 2011) (quoting Jiminez v. Mary Wash. Coll., 57 F.3d
369, 378 (4th Cir. 1995)). “A plaintiff alleging a failure to promote can prove pretext by
showing that he was better qualified, or by amassing circumstantial evidence that otherwise
undermines the credibility of the employer’s stated reasons.” Id. at 559 (quoting Heiko v.
Colombo Sav. Bank, 434 F.3d 249, 259 (4th Cir. 2006)).
The parties do not contest that Plaintiff satisfies the first and fourth elements of the
prima facie case: that he is a member of a protected class and that the position was filled by a
white applicant, Mr. Poole.4 (See ECF Nos. 20, 22, 23.) Plaintiff has also introduced sufficient
evidence from which a reasonable juror could find that Plaintiff meets the third element: that
he was qualified for the position. (See ECF No. 22-9 at 5, 30 (detailing Plaintiff’s experience
temporarily serving in supervisory roles on multiple occasions).) Defendant does, however,
argue that Plaintiff does not meet the second element of the prima facie case because Plaintiff
did not apply for the position before it was filled. (ECF No. 20 at 10–11.) Plaintiff, in
response, argues that “Defendant failed to make all eligible employees aware of the Support
Services Supervisor job vacancy and that the application requirement should not apply.” (ECF
No. 22 at 14.)
In the Fourth Circuit, “if [an] employer fails to make its employees aware of vacancies,
the application requirement may be relaxed and the employee treated as if [he] had actually
applied for a specific position.” Williams, 370 F.3d at 431. This exception to the application

4

To satisfy the fourth element, Plaintiff “need only show that the position was filled by a white
applicant, as he has done.” Carter v. Ball, 33 F.3d 450, 458 (4th Cir. 1994).
10
Case 1:17-cv-00398-LCB-LPA Document 27 Filed 11/26/18 Page 10 of 19

 requirement only applies if the plaintiff “can show that [he] would have applied had [he]
known about [the vacancy].” Id. at 432. Specifically, this exception may be applicable in
instances where “the company did not follow its own policy” in advertising job vacancies, id.
at 431, or where the employer used a more informal, word-of-mouth hiring system, Barnett v.
W. T. Grant Co., 518 F.2d 543, 549 (4th Cir. 1975); see also EEOC v. Metal Serv. Co., 892 F.2d
341, 349–51 (3d Cir. 1990) (noting that an employer’s word-of-mouth hiring practices made it
difficult to ascertain which positions were available); Roberts v. Gadsden Mem’l Hosp., 835 F.2d
793, 797–99 (11th Cir. 1988) (concluding, in part, that the plaintiff established a prima facie
case of discriminatory failure to promote where his employer never posted notice of the
vacancy and used informal communications during social gatherings to make promotion
selections).
The only evidence in the record regarding the manner in which Defendant advertised
the job vacancy is Mr. Worden’s testimony that he “g[o]t the word out that [Defendant] would
be looking to replace [Mr. Brown’s] position.” (ECF No. 19-3 at 15.) Because Defendant
used a word-of-mouth hiring system5 for the Support Services Supervisor position, Plaintiff
may be treated as if he applied for the position, provided he can show that he would have
done so, had he been aware of the vacancy. See Williams, 370 F.3d at 431, 432. To that end,
Plaintiff points to specific evidence showing that he actually attempted to apply for the

5

Both parties, in their briefs, reference portions of Ms. Ugboro’s deposition regarding Defendant’s
policy for posting vacancies. (ECF No. 22 at 14; ECF No. 23 at 6.) Neither party, however, included
those portions of Ms. Ugboro’s deposition in their filings or any other evidence to show whether
Defendant followed its own policies for advertising job vacancies. Accordingly, the Court cannot
consider those references or arguments. See Dash v. Walton, No. 1:99CV00350, 2000 WL 1229264, at
*4 (M.D.N.C. July 17, 2000) (“Because there is no evidence before the Court of [a certain argument],
this argument cannot be considered.” (citing Fed. R. Civ. P. 56(e))).
11
Case 1:17-cv-00398-LCB-LPA Document 27 Filed 11/26/18 Page 11 of 19

 Support Services Supervisor position by searching the job postings on the HR database and
asking Mr. Brown and Mr. Worden about the position. (ECF No. 19-1 at 7–9.) Therefore,
based on the evidence, the Court concludes that Plaintiff has satisfied this element of his prima
facie case by demonstrating that he would have applied for the Support Services Supervisor
position had he known that Defendant was interviewing applicants. Plaintiff has thus
established a prima facie case of discrimination. See Weaks v. N.C. Dep’t of Transp., 761 F. Supp.
2d 289, 298 (M.D.N.C. 2011) (“The burden to establish a prima facie case of disparate
treatment is not onerous.” (quoting Burdine, 450 U.S. at 253) (emphasis omitted)).
Because Plaintiff has satisfied his burden of establishing a prima facie case of
discrimination, Defendant must present evidence of a legitimate, nondiscriminatory reason for
selecting an applicant other than Plaintiff. Defendant argues that Mr. Poole was selected for
the Support Services Supervisor position “based on his previous supervisory experience and
experience maintaining and repairing equipment used for custodial service.” (ECF No. 20 at
12.) In support of this reason, Defendant has produced evidence showing that Mr. Poole was
qualified for the Support Services Supervisor position. (ECF No. 19-2 at 3; ECF No. 19-3 at
14.) Specifically, the record reflects that:
x  Mr. Brown, Mr. Poole’s direct supervisor, stated, “[Poole] was hard working.
He was real knowledgeable on equipment, basic equipment repairs and stuff,
but other than that—he had worked for me a while and he was a good man,
hard working, dependable.” (ECF No. 19-2 at 3.)
x  Mr. Worden, who made the ultimate hiring decision, stated that he selected
Mr. Poole based on “[p]revious supervisory experience, equipment
maintenance, work ethic, [and] fit.” When asked about what type of
equipment Mr. Poole had experience with, Mr. Worden responded,
“[e]quipment specifically used for custodial service, whether it be vacuums,
carpet machines, swing buffers.” (ECF No. 19-3 at 14.)

12
Case 1:17-cv-00398-LCB-LPA Document 27 Filed 11/26/18 Page 12 of 19

 x  Mr. Poole’s last performance review before his promotion included
comments such as, “[Mr. Poole] adjusts well to any changes in job
assignments and always has a positive attitude,” “[v]ery motivated individual
who carries out assignments with little supervision and is willing to take on
other jobs if needed,” and “[c]ommunicates well with others.” (ECF No.
22-15 at 13–14.)
Plaintiff, attempting to show that Defendant’s reason is a pretext for discrimination,
argues that “his qualifications [were] demonstrably superior.” (ECF No. 22 at 15 (citing Heiko,
434 F.3d at 261–62).) Evidence reflecting Plaintiff’s qualifications includes:
x  Mr. Brown remarked that Plaintiff “did good work” and “got along with
everybody okay.” (ECF No. 19-2 at 1.) Mr. Worden stated that Plaintiff
had a “[s]trong work ethic.” (ECF No. 19-3 at 9.)
x  Plaintiff supervised other sanitation employees during home football games.
(ECF No. 22-9 at 5; ECF No. 22-12 at 4 (“[M]ost of the time [Plaintiff]
looked after the . . . sanitation group, at the games.”)) Plaintiff also
supervised six other employees while Mr. Brown was out on sick leave for
nine weeks. (ECF No. 22-9 at 5; ECF No. 22-12 at 2.)
x  Plaintiff had some experience with equipment repair, as indicated by the
repeated suggestions in his yearly performance reviews that he “[c]ontinue
to learn equipment repair,” specifically vacuum repair. (E.g. ECF No. 22-6
at 5, 10, 14, 16, 20, 24, 29, 31, 36, 40.)
This evidence notwithstanding, when a plaintiff fails to show “that his qualifications
are demonstrably superior,” then “the promotion decision remains vested in the sound
business judgment of the employer.” Heiko, 434 F.3d at 261–62. After reviewing the evidence
before the Court in the light most favorable to Plaintiff, the Court finds that Plaintiff has, at
best, shown that his “job qualifications [were] similar or only slightly superior to those of [Mr.
Poole].”

Id. at 261.

Such a showing is insufficient to establish that Defendant’s

nondiscriminatory reason for promoting Mr. Poole instead of Plaintiff was a pretext for
discrimination. See id.; see also Moore v. Mukasey, 305 F. App’x 111, 116 (4th Cir. 2008)

13
Case 1:17-cv-00398-LCB-LPA Document 27 Filed 11/26/18 Page 13 of 19

 (“[Plaintiff] cannot rely on his qualifications to establish pretext if he asserts that his
qualifications are similar or only slightly superior to those of the person ultimately selected for
promotion.”)

Therefore, Plaintiff has failed to present a genuine issue as to whether

Defendant’s proffered nondiscriminatory reason for selecting Mr. Poole was a pretext for
discrimination. Accordingly, the Court will grant Defendant’s Motion for Summary Judgment
as to Plaintiff’s failure to promote claim.
B.  Discriminatory Termination Claim
Next, Defendant claims that it is entitled to summary judgment on Plaintiff’s
discriminatory termination claim because it terminated Plaintiff after an internal investigation
found that he created a hostile work environment for a female coworker. (ECF No. 20 at 16–
19.) Plaintiff argues in response that he did not harass his coworker and that Defendant
treated him differently than another employee, Kevin Bigelow, who was the subject of multiple
sexual harassment complaints. (ECF No. 22 at 16–21.)
A discriminatory termination claim under Title VII and § 1981, like a failure to promote
claim, may be proven by direct or circumstantial evidence of discrimination, or by using the
burden-shifting McDonnell Douglas framework. See Foster, 787 F.3d at 249. Because Plaintiff
does not attempt to argue that there is direct or circumstantial evidence of discrimination with
regard to his termination, he proceeds under the McDonnell Douglas framework. (ECF No. 22
at 16.) To establish a prima facie case of discriminatory termination under Title VII and
§ 1981, Plaintiff must show that: “(1) he is a member of a protected class; (2) he was qualified
for his job and his job performance was satisfactory; (3) he was fired; and (4) other employees
who are not members of the protected class were retained under apparently similar

14
Case 1:17-cv-00398-LCB-LPA Document 27 Filed 11/26/18 Page 14 of 19

 circumstances.” Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 188 (4th Cir. 2004); see also
Scott v. Health Net Fed’l Servs., LLC, 463 F. App’x 206, 208 (4th Cir. 2012) (per curiam). If a
plaintiff proves a prima facie case of discriminatory termination, then the burden shifts to the
employer “to articulate some legitimate, nondiscriminatory reason for the [termination].”
Burdine, 450 U.S. at 253 (quoting McDonnell Douglas Corp., 411 U.S. at 802). If the employer
meets its burden, the plaintiff must then show that the employer’s reason was merely a “pretext
for discrimination.” Id. The plaintiff may do this “either directly by persuading the court that
a discriminatory reason more likely motivated the employer or indirectly by showing that the
employer’s proffered explanation is unworthy of credence.” Id. at 256.
Although Defendant concedes that Plaintiff can prove the first and third elements of
the prima facie case, it argues that Plaintiff cannot meet the second and fourth elements of the
prima facie case. (ECF No. 20 at 16.) With respect to the second element, Defendant argues
that actions that led to Plaintiff’s sexual harassment complaint “made him unqualified for the
job.” (Id.) This argument, however, misses the point. To satisfy this prong, Plaintiff must
only show that he satisfactorily performed the duties required of the position. See PrinceGarrison v. Md. Dep’t of Health & Mental Hygiene, 317 F. App’x 351, 353 (4th Cir. 2009) (per
curiam) (finding that the district court properly held that the plaintiff did not meet the second
element because “she consistently received reports of deficient work performance”); Warren
v. Tri Tech Labs., Inc., 993 F. Supp. 2d 609, 633–34 (W.D. Va. 2014) (holding that Plaintiff’s job
performance was not satisfactory due to “missing paperwork, unfinished regulatory
paperwork, [and] the changing of processes within the facility without approval”), aff’d, 580 F.
App’x 182 (4th Cir. 2014). Plaintiff has introduced sufficient evidence to show that he

15
Case 1:17-cv-00398-LCB-LPA Document 27 Filed 11/26/18 Page 15 of 19

 remained qualified for his position and that his performance was satisfactory. As previously
discussed, Plaintiff routinely received performance reviews stating that he “frequently
exceed[ed] [the] requirements of [his] position.” (See, e.g., ECF No. 19-4 at 10.) Although
Defendant introduced evidence showing that Plaintiff was found to have created a hostile
work environment for a coworker, it failed to otherwise show that Plaintiff’s job performance
was not satisfactory. Therefore, viewing the evidence in the light most favorable to Plaintiff,
the Court finds that he has shown that he was still qualified for his position, thus meeting the
second element of the prima facie case.
Defendant has established, however, that Plaintiff cannot meet the fourth element of
the prima facie case: that another employee who is not a member of Plaintiff’s protected class
was retained under apparently similar circumstances. Plaintiff argues that Mr. Bigelow, a
supervisor who had “been accused of sexual harassment multiple times by different employees
on different occasions,” (ECF No. 22 at 17), was not terminated while Plaintiff was terminated
“under apparently similar circumstances,” Honor 383 F.3d at 188; see ECF No. 22 at 17.
Plaintiff points to two separate sexual harassment investigations into Mr. Bigelow’s behavior.
First, Mr. Bigelow was the subject of a 2013 HR investigation in response to a sexual
harassment and retaliation complaint by a former employee, alleging that Mr. Bigelow fired
her after she refused to go out with him. (ECF No. 22-5 at 2.) Although that investigation
did not find that Mr. Bigelow had retaliated against the former employee, the HR
representative recommended that he receive training “on policies and procedures including
sexual harassment” and “assistance with developing his supervisory skills.” (Id. at 5.) Second,
HR investigated the accusations made by Plaintiff in 2016, during Plaintiff’s own sexual

16
Case 1:17-cv-00398-LCB-LPA Document 27 Filed 11/26/18 Page 16 of 19

 harassment investigation, that Mr. Bigelow was engaged in a relationship with a coworker in
violation of Defendant’s policy. (ECF No. 19-12.) The supplementary investigation into
Plaintiff’s accusations concluded that they “[could not] definitively say” whether the
allegations against Mr. Bigelow were true. (Id.) Both allegations led to HR investigations,
neither of which found that Mr. Bigelow violated Defendant’s code of conduct. (See ECF No.
22-5 at 5; ECF No. 19-12.)
In contrast to Mr. Bigelow’s situation, Defendant’s HR investigation into sexual
harassment allegations against Plaintiff found that “[Plaintiff] created a hostile work
environment for [his coworker].” (ECF No. 19-9 at 1.) Therefore, Plaintiff and Mr. Bigelow
are not “similarly situated,” as contemplated by the prima facie case test. See Haywood v. Locke,
387 F. App’x 355, 360 (4th Cir. 2010) (per curiam) (finding not enough “common features
between the individuals to allow [for] a meaningful comparison” (alteration in original)
(quoting Humphries v. CBOCS W., Inc., 474 F.3d 387, 405 (7th Cir. 2007), aff’d on other grounds,
553 U.S. 442 (2008))). Although Plaintiff attempts to contest the findings of the investigations
into Mr. Bigelow’s alleged misconduct, (ECF No. 22 at 6–9), the court does not “sit as a superpersonnel department weighing the prudence of employment decisions.”

Anderson v.

Westinghouse Savannah River Co., 406 F.3d 248, 272 (4th Cir. 2005) (internal quotation marks
omitted). Plaintiff has failed to satisfy the fourth element of the prima facie test. Accordingly,
summary judgment in favor of Defendant is appropriate as to this claim.6

6

Failure to meet one element of the prima facie case is fatal to the claim. See Haywood, 387 F. App’x
at 360 (“As [Plaintiffs] failed to show their comparator was similarly situated, they failed to make out
a prima facie case of discrimination. . . . [Accordingly,] the district court properly granted summary
judgment to the defendant.”).
17
Case 1:17-cv-00398-LCB-LPA Document 27 Filed 11/26/18 Page 17 of 19

 Even assuming that Plaintiff could establish a prima facie case, Plaintiff cannot show
that Defendant’s legitimate nondiscriminatory reason for terminating his employment was a
pretext for discrimination. Defendant’s stated reason for terminating Plaintiff is that a HR
investigation found that he had created a hostile work environment for a coworker, thereby
violating Defendant’s Staff Manual. (See ECF No. 19-9 at 1; ECF No. 22-1 at 2.) To prove
that Defendant’s reason was a pretext for discrimination, Plaintiff “must show both that the
reason advanced was a sham and that the true reason was an impermissible one under the law.”
Ousley v. McDonald, 648 F. App’x 346, 349 (4th Cir. 2016) (internal quotation marks omitted).
Plaintiff devotes extensive portions of his brief and deposition to presenting his version
of the events that led to his sexual harassment complaint. (See ECF No. 22 at 5–6, 17–19;
ECF No. 22-9 at 13–24.) Plaintiff further argues that the investigation was “hasty and
informal” and was a “gross deviation from the standards set forth in Defendant’s own Staff
Manual.” (ECF No. 22 at 18.) Although Plaintiff questions the thoroughness of Defendant’s
investigation of Ms. Ward’s sexual harassment complaint, “focusing on the quality of internal
investigations misses the point.” Cupples v. AmSan, LLC, 282 F. App’x 205, 210 (4th Cir.
2008). Plaintiff has failed to point to any evidence demonstrating that the real reason for his
discharge was discriminatory. The record is devoid of evidence showing that Ms. Ugboro or
any HR professional involved in the investigation and termination of Plaintiff were motivated
by discriminatory purposes.7 “If [Defendant’s] reason for termination is not forbidden by law,

7

Plaintiff argues that Mr. Worden, Plaintiff’s supervisor who allegedly made discriminatory comments
towards him in the past, was “instrumental in advancing the sexual harassment investigation.” (ECF
No. 22 at 18.) Although Mr. Worden (and Donnell Jeffries) initially brought Ms. Ward’s complaint
against Plaintiff to the attention of HR, there is no evidence that shows that Mr. Worden further
influenced Ms. Ugboro’s investigation. (See ECF No. 19-7 at 1; ECF No. 19-8.)
18
Case 1:17-cv-00398-LCB-LPA Document 27 Filed 11/26/18 Page 18 of 19

 ‘it is not [the Court’s] province to decide whether the reason was wise, fair or even correct,
ultimately, so long as it was truly the reason for the plaintiff’s termination.’” Id. (quoting
DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998)). The Court therefore concludes
that there is no genuine dispute as to any material fact concerning Defendant’s reason for
Plaintiff’s termination. Accordingly, Defendant is entitled to summary judgment on Plaintiff’s
wrongful termination claim.
IV. 

CONCLUSION

Based on the above, the Court concludes that Defendant has shown that there is no
genuine dispute of any material fact regarding Defendant’s alleged failure to promote and
termination of Plaintiff. Accordingly, summary judgment in favor of Defendant is appropriate
as to both claims.
For the reasons outlined herein, the Court enters the following:
ORDER
IT IS THEREFORE ORDERED that Defendant’s Motion for Summary Judgment,
(ECF No. 19), is GRANTED, and Plaintiff’s claims against Defendant are hereby
DISMISSED WITH PREJUDICE.
A Judgment dismissing this action will be entered contemporaneously with this Order.
This, the 26th day of November 2018.
/s/ Loretta C. Biggs
United States District Judge

19
Case 1:17-cv-00398-LCB-LPA Document 27 Filed 11/26/18 Page 19 of 19