# Carr v. The United States of America

> District Court, E.D. North Carolina · May 24, 2023

URL: https://www.frixlaw.com/law-library/cases/10252725

## Case

- **Court:** District Court, E.D. North Carolina
- **Decided:** May 24, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 5:21-CV-245-D

GLORIA CARR, )
Plaintiff,
v. ; ORDER
UNITED STATES OF AMERICA, et al.,
Defendants.

On June 7, 2021, Gloria Carr (“Carr” or “plaintiff”’), an African-American woman, filed a
complaint against the United States, Lloyd J. Austin, Secretary of Defense, and Christine E.
Wormuth, Secretary of the Army, (collectively, “defendants”) alleging race discrimination, sex
discrimination, retaliation, and constructive discharge under Title VII of the Civil Rights Act, 42
U.S.C. §§ 2000e, et seq. [D.E. 1]. On August 12, 2021, defendants moved to dismiss the complaint
for failure to state a claim [D.E. 8] and filed a memorandum in support [D.E. 9]. See Fed. R. Civ.
P. 12(b)(6). On September 1, 2021, Carr filed an amended complaint [D.E. 10] and responded to
defendants’ motion to dismiss [D.E. 11].
On September 29, 2021, defendants moved to dismiss Carr’s amended complaint for failure
to state a claim [D.E. 13] and filed a memorandum [D.E. 14]. See Fed. R. Civ. P. 12(b6)(6). On
October 19, 2021, Carr responded in opposition [D.E. 15] and filed a memorandum [D.E. 16]. On

. November 1, 2021, defendants replied [D.E. 17].
On March 1, 2022, the court denied as moot defendants’ motion to dismiss and granted in
part and denied in part defendants’ motion to dismiss Carr’s amended complaint [D.E. 18]. The only

claim that survived was Carr’s retaliation claim. See id. at 4-5. On November 28, 2022, defendants
moved for summary judgment [D.E. 31] and filed amemorandum, a statement of material facts, and
an appendix [D.E. 32, 33, 34]. On January 9 and 10, 2023, Carr responded in opposition [D.E. 40]
and filed amemorandum, a statement of material facts, and an appendix in support [D.E. 39, 41, 42].
On January 23, 2023, defendants replied [D.E. 45] and filed a statement of material facts and an
appendix [D.E. 46, 47].' As explained below, the court grants defendants’ motion for summary
judgment.
I,
The Army employed Carr as a Supervisory Contract Specialist and Director at Contracting
Command, Mission and Installation Contracting Command (“MICC”), 419th Contracting Support
Brigade (“CSB”) at Fort Bragg, North Carolina. See Am. Compl. [D.E. 10] f] 8-21; [D.E. 33] 1;
[D.E. 41] 7 1. As a Supervisory Contract Specialist and Director, Carr’s responsibilities included
supervising 80-100 people and being responsible for contracts totaling between $3 billion and □□□
billion per year. See Am. Compl. 957. Jerry David King (“King”) was Carr’s first-line supervisor.
See id. at ] 25. Colonel Carol Tschida (“Colonel Tschida”) was Carr’s second-line supervisor. See
id. From December 2013 through July 2017, Brigadier General Jeff Gabbert (“General Gabbert”)

1 Under Local Civil Rule 56.1(a)(2), each numbered paragraph in defendants “statement of
material facts [is] deemed admitted for the purposes of [Carr’s] motion unless it is specifically
controverted by a correspondingly numbered paragraph in the opposing statement.” Local Civil Rule
56.1(a)(2); see Williamson v. Bridgestone Ams.,Inc., _ F. Supp.3d__, __, 2022 WL 4084413, at
*3 (E.D.N.C. Sept. 6, 2022); Felton v. Moneysworth Linen Serv., Inc., 295 F. Supp. 3d 595, 597 n.1
(E.D.N.C. 2018); Howard v. Coll. of the Albemarle, 262 F. Supp. 3d 322, 329 n.1 (E.D.N.C. 2017),
aff'd, 697 F. App’x 257 (4th Cir. 2017) (per curiam) (unpublished); United States v. Compassionate
Home Care Servs., Inc., No. 7:14-CV-113, 2017 WL 1030706, at *1 n.1 (E.D.N.C. May 15, 2017)
(unpublished); see also Fed. R. Civ. P. 56(e)(2).

was Commanding General of Mission and Installation Contracting Command, Headquartered at
Joint Base San Antonio, Fort Sam Houston, Texas. See [D.E. 33] § 2; [D.E. 41] 2.
The parties dispute various issues that allegedly arose in 2015. Carr contends that King made
discriminatory statements to her and that King and Colonel Tschida created a hostile work
environment. See [D.E. 41] 8-62. The court, however, has dismissed Carr’s hostile work
environment claim. See [D.E. 18] 2-3. Moreover, defendants respond that Carr created a hostile
work environment, that employees in her office complained and asked to be moved, that Carr could
not handle her workload, and that Carr had numerous performance issues. See [D.E. 33] f] 7-62.
In any event, these disputes are not material to Carr’s retaliation claim.
On January 25, 2016, Colonel Tschida (with the approval of General Gabbert) offered Carr
a Procurement Analyst Technical Director position (“Technical Director position”). Compare [D.E.
33] { 14 with [D.E. 41] 9 14. Carr did not immediately accept the position, and on January 27, 2016,
the office of the Chief Counsel notified King and Colonel Tschida that they should prepare to do a
management-directed reassignment of Carr if Carr declined the Technical Director position.
Compare [D.E. 33] { 18 with [D.E. 41] { 18; see [D.E. 34-3] 3. On January 27, 2016, Carr declined
the offer to transfer to the Technical Director position. See [D.E. 34-3] 3.
In March 2016, Carr remained as a Supervisor Contract Specialist and Director. On March
29, 2016, General Gabbert decided to notify Carr that he was reassigning her to the Technical
Director position. Compare [D.E. 33] ] 47 with [D.E. 41] § 47; see [D.E. 34-8]. On Thursday,
March 31, 2016, General Gabbert instructed his office assistant, Velia Anstadt, to schedule a meeting
with Carr to take place on Friday, April 1, 2016, so that General Gabbert could inform Carr of his
recent decision to assign her to the position of Technical Director. See [D.E. 34-8] 2; compare [D.E.
33] {4 47-48 with [D.E. 41] 47-48. Anstadt could not reach Carr on the telephone, sent an email

to Carr informing her that General Gabbert wanted to schedule a meeting with Carr on Friday, April
1, 2016, and enlisted King to help contact Carr. Compare [D.E. 33] {J 48-50 with [D.E. 41] □□
48-50; see [D.E. 34-3, 34-4]. King called Carr on her personal cell phone and directed Carr to
schedule a meeting with General Gabbert for Friday, April 1, 2016. Compare [D.E. 33] 451 with
[D.E. 41] 751; see [D.E. 34-3] 6. On Friday, April 1, 2016, Carr submitted a request for sick leave,
declined to schedule a meeting with General Gabbert for that day, scheduled the meeting with
General Gabbert for Monday, April 4, 2016, and took a day of sick leave on April 2016. Compare
[D.E. 33] 955 with [D.E. 41] 55. On April 1, 2016, Carr also scheduled an EEO appointment for
Friday, April 4, 2016. Compare [D.E. 33] 56 with [D.E. 41] 756.
On April 4, 2016, Carr attended a meeting at the EEO office. After that meeting, Carr then
met with General Gabbert. Compare [D.E. 33] ff 57-58 with [D.E. 41] 57-58. At the meeting
with General Gabbert, General Gabbert notified Carr that he was reassigning her ‘effective
immediately to the Technical Director position. Compare [D.E. 33] {] 58-59 with [D.E. 41] ff
58-59. As Technical Director, Carr would have “reviewed contracts prepared by other specialists
throughout the 419th Contracting Support Brigade.” [D.E. 41] 58. On April 4, 2016, Carr retired.
See [D.E. 33] 63; [D.E. 41] 63.
In Carr’s amended complaint, Carr alleges that defendants retaliated against her after she
“engaged in EEO activity on April 4, 2016 when she had her appointment with the EEO office.”
Am. Compl. 749. Referring to the April 4, 2016 meeting, Carr alleges that “[t]he retaliating officials
knew of the protected activity in that prior to her appointment, she emailed COL Tschida and Mr.
King to let them know she had an EEO appointment that morning.” Id. at ¢ 50. Carr also alleges
that “Mr. King acknowledged during the EEO investigation, that he learned on April 1, 2016, that

[Carr] had a scheduled appointment with the EEO office.” Id.? Carr alleges that she was “subjected
to adverse treatment” after her EEO meeting on April 4, 2016, which consisted of being moved
“from her position as Supervisory Contract Specialist and Director, NH-1102-04, MICC, Fort
Bragg .. . to the position of [Technical Director], 419th CSB, Fort Bragg, North Carolina.” Id. at
q 51.

Summary judgment is appropriate when, after reviewing the record as a whole, no genuine
issue of material fact exists and the moving party is entitled to judgment as a matter of law. See Fed.
Civ. P. 56(a); Scott v. Harris, 550 U.S. 372, 378, 380 (2007); Anderson v. Liberty Lobby, Inc.,
477 US. 242, 247-48 (1986). The party seeking summary judgment must initially demonstrate the
absence of a genuine issue of material fact or the absence of evidence to support the nonmoving
patty’s case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has
met its burden, the nonmoving party may not rest on the allegations or denials in its pleading, see
Anderson, 477 U.S. at 248-49, but “must come forward with 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) (cleaned up). A trial court reviewing a motion for summary judgment should determine
whether a genuine issue of material fact exists for trial. See Anderson, 477 U.S. at 249. Inmaking
this determination, the court must view the evidence and the inferences drawn therefrom in the light
most favorable to the nonmoving party. See Harris, 550 U.S. at 378.

2 King contends that he mistakenly stated during the EEO investigation that he learned about
Carr’s EEO meeting on April 1, 2016, and that he did not learn about Carr’s EEO meeting until April
4, 2016. See [D.E. 34-3] FJ 29-30. The dispute is not material.

A genuine issue of material fact exists if there is sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party. See Anderson, 477 U.S. at 249. “The mere
existence of a scintilla of evidence in support of the [nonmoving party’s] position [is]
insufficient... .” Id, at 252; see Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985) (“The
nonmoving party, however, cannot create a genuine issue of stevie] fact through mere speculation
or the building of one inference upon another.”). Only factual disputes that affect the outcome under
substantive law properly preclude summary judgment. See Anderson, 477 U.S. at 248.
Carr does not have direct evidence of retaliation and proceeds under the McDonnell Douglas

_ burden-shifting framework. To establish a prima facie case of retaliation, Carr must prove that (1)
she engaged in protected activity under Title VII, (2) her employer took some action against her that
a reasonable employee would find materially adverse, and (3) her employer took the adverse action
because of the protected activity. See Walton v. Harker, 33 F.4th 165, 177 (4th Cir. 2022); Mclver
v. Bridgestone Ams.., Inc., 42 F.4th 398, 411 (4th Cir. 2022); Roberts v. Glenn Indus. Grp., Inc., 998
F.3d 111, 122 (4th Cir. 2021); Sempowich v. Tactile Sys. Tech., Inc., 19 F.4th 643, 653 (4th Cir.
2021); Kitlinski v. United States Dep’t of Justice, 994 F.3d 224, 232 (4th Cir. 2021); Wilcox v.
Lyons, 970 F.3d 452, 460 (4th Cir. 2020); Evans v. Int’] Paper Co., 936 F.3d 183, 195 (4th Cir.
2019); Perkins v. int'l Paper Co., 936 F.3d 196, 213 (4th Cir. 2019); Ray v. Int] Paper Co., 909 □□□□ □
661, 667 (4th Cir. 2018); Savage v. Maryland, 896 F.3d 260, 276 (4th Cir. 2018); Strothers v. City
of Laurel, 895 F.3d 317, 327 (4th Cir. 2018); Abilt v. CIA, 848 F.3d 305, 315 n.9 (4th Cir. 2017);
Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 217 (4th Cir. 2016); Foster v. Univ. of Md.-E.
Shore, 787 F.3d 243, 253 (4th Cir. 2015); Adams v. Anne Arundel Cty. Pub. Sch., 789 F.3d 422, 429
(4th Cir. 2015); DeMasters v. Carilion Clinic, 796 F.3d 409, 416 (4th Cir. 2015); Boyer-Liberto v.
Fontainbleau Corp., 786 F.3d 264, 281 (4th Cir. 2015) (en banc); Balas v. Huntington Ingalls Indus.,

Inc., 711 F.3d 401, 410 (4th Cir. 2013); see also Burlington N. & Santa Fe Ry. v. White, 548 U.S.
53, 67—70 (2006).
As for whether Carr engaged in protected activity, defendants concede that Carr engaged in
protected activity when she attended an EEO appointment on April 4, 2016. See [D.E. 32] 7-9.
Defendants, however, argue that any other alleged protected activity, such as Carr’s alleged meetings
before April 4, 2016, with King, Colonel Tschida, or General Gabbert, was not protected activity
and, even if it were, Carr did not identify that activity as protected activity in Carr’s EEOC charge,
her complaint, or her amended complaint. Thus, according to the defendants, Carr cannot rely on
that activity because she failed to administratively exhaust any retaliation claim arising from that
alleged protected activity. See id.; [D.E. 45] 1-6. Carr responds that she engaged in protected
activity by complaining about alleged discriminatory actions towards her and others to Colonel
Tschida, King, and General Gabbert from August to December 2015 and to the EEO office on March
17, 2016, and April 1, 2016. See [D.E. 39] 7-9.
Title VII protects two kinds of activities: opposition and participation. See Netter v. Barnes,
908 F.3d 932, 937-38 (4th Cir. 2018); Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 259
(4th Cir. 1998). “[O]ppositional activity must be directed to ‘an unlawful employment practice’
under Title VII... .” DeMasters, 796 F.3d at 417; see Netter, 908 F.3d at 937-38; Boyer-Liberto,
786 F.3d at 282; Bonds v. Leavitt, 629 F.3d 369, 384 (4th Cir. 2011); Laughlin, 149 F.3d at 259.
The opposition clause applies when an employee “opposes not only employment actions actually
unlawful under Title VII but also employment actions [she] reasonably believes to be unlawful
[under Title VII].” DeMasters, 796 F.3d at 417 (cleaned up); see Netter, 908 F.3d at 937-38; Boyer-
Liberto, 786 F.3d at 282. As for the participation clause, it protects making a charge, testifying,

7 .

assisting, or participating in any manner in an investigation, proceeding, or hearing under Title VIL.
See 42 U.S.C. § 2000e-3(a); Laughlin, 149 F.3d at 259.
Carr’s amended complaint alleges that defendants retaliated against her after she “engaged _
in EEO activity on April 4, 2016 when she had her appointment with the EEO office.” Am, Compl.
749. Referring to the April 4, 2016 meeting, Carr alleges that “[t]he retaliating officials knew of the
protected activity in that prior to her appointment, she emailed COL Tschida and Mr. King to let
them know she had an EEO appointment that morning.” Id. at ]50. Carr also alleges that “Mr. King
acknowledged during the EEO investigation, that he learned on April 1, 2016 that [Carr] had a
scheduled appointment with the EEO office.” Id. Carr alleges that she was “subjected to adverse
treatment” after this meeting with the EEO on April 4, 2016, which consisted of being moved “from
her position as Supervisory Contract Specialist and Director, NH-1102-04, MICC, Fort Bragg... □□
the position of [Technical Director], 419th CSB, Fort Bragg, North Carolina.” Id. at ¥ 51.

_ The only alleged protected activity that Carr included in her amended complaint was
scheduling her EEO meeting on April 1, 2016, and attending the EEO meeting on April 4, 2016.
Carr does not contend in her amended complaint that she engaged in any other protected activity.
See Am. Compl. f] 48—49.: Carr never attempted to amend her complaint to add this new alleged
protected activity that allegedly occurred before April 1, 2016. Carr cannot amend her claims or
amend her complaint via summary judgment briefing. See, e.g., U.S. ex rel. Carter v. Halliburton
Co., 866 F.3d 199, 210 n.6 (4th Cir. 2017); Murray Energy Corp. v. Admin. of Envt’l Prot. Agency,
861 F.3d 529, 537 n.5 (4th Cir. 2017); vonRosenberg v. Lawrence, 849 F.3d 163, 167 n.1 (4th Cir.
2017); S. Walk at Broadlands Homeowner’s Ass’n, Inc., v. OpenBand at Broadlands, LLC, 713 F.3d
175, 184 (4th Cir. 2013); Barclay White Skanska, Inc. v. Battelle Mem. Inst., 262 F. App’x 556, 563
(4th Cir 2008) (collecting cases); see also Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599,

617 (4th Cir. 2009) (collecting cases); Cloaninger v. McDevitt, 555 F.3d 324, 336 (4th Cir. 2009);
Shanahan v. City of Chi., 82 F.3d 776, 781 (7th Cir. 1996); Car Carriers, Inc. v. Ford Motor Co., 745
F.2d 1101, 1107 (7th Cir. 1984); Shinaberry v. Town of Murfreesboro, No. 2:17-CV-7, 2019 WL
5446712, at *5 n.4 (E.D.N.C. Oct. 23, 2019) (unpublished); Optima Tobacco Corp. v. Flue-Cured
Tobacco Growers, Inc., No. 5:16-CV-889, 2019 WL 4858848, at *8 (E.D.N.C. Sept. 30, 2019)
(unpublished); United States for Graybar Elec. Co., Inc. v. TEAM Constr., LLC, 275 F. Supp. 3d
737, 748 n.3 (E.D.N.C. 2017); Gilbert v. Deutsche Bank Tr. Co. Ams., No. 4:09-CV-181, 2017 WL
1012981, at *2 n.2 (E.D.N.C. Mar. 14, 2017) (unpublished); Hexion Specialty Chems., Inc. v.
Oak—Bark Corp., No. 7:09-CV-105, 2011 WL 4527382, at *7 (E.D.N.C. Sept. 28, 2011)
(unpublished).
Alternatively, the court declines to consider these new contentions about alleged protected
activity before April 1, 2016, because Carr failed to administratively exhaust them. Before a person
may file a claim under Title VII, she must file a charge of discrimination with the EEOC. See 42
U.S.C. § 2000e—5(f)(1). An EEOC charge suffices “only if it is sufficiently precise to identify the
parties, and to describe generally the action or practices complained of.” Chacko v. Patuxent Inst.,
429 F.3d 505, 508 (4th Cir. 2005) (quotation omitted); see Miles v. Dell, Inc., 429 F.3d 480, 491 (4th
Cir. 2005). Moreover, the content of the EEOC charge determines the scope of plaintiff's right to
maintain a Title VII claim in court. See, e.g., Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th
Cir. 2002). “Only those discrimination claims stated in the initial charge, those reasonably related
to the original complaint, and those developed by reasonable investigation of the original complaint
may be maintained in a subsequent Title VII lawsuit.” Evans v. Techs. Applications & Serv. Co.,
80 F.3d 954, 963 (4th Cir. 1996); see Miles, 429 Fd at 491. “Thus, a claim in formal litigation will
generally be barred if the EEOC charge alleges discrimination on one basis, such as race, and the

formal litigation claim alleges discrimination ona separate basis, such as sex.” Jones v. Calvert
Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009), abrogated on other grounds by Fort Bend Cnty. v.
Davis, 139 S. Ct. 1843 (2019). The same principle applies with respect to a plaintiff who files an
EEOC charge that alleges retaliation with respect to one allegedly protected activity, but then seeks
to expand the formal litigation claim to a separate allegedly protected activity. See Chacko, 429 F.3d
at 509. The rationale behind these principles concerning the scope of an EEOC charge relates to
providing fair notice to an employer concerning a charge and to permitting the EEOC to investigate
and (if appropriate) resolve the dispute without a lawsuit. See, e.g., id. at 508-09; Miles, 429 F.3d
at 491.
Although Carr’s amended complaint mentions some of the allegedly discriminatory
statements her supervisors allegedly made in meetings from January 2015 until April 2016, Carr only
alleges protected activity and retaliation based scheduling her EEO meeting on April 1, 2016, and
attending it on April 4, 2016. See Am. Compl. ff 49-51. Therefore, the only potential retaliation
claim that Carr’s amended complaint contains is a retaliation claim arising from this alleged
protected activity.
As for the adverse action requirement, defendants argue that Carr’s reassignment was not
adverse action because there was no change to her hours, location, pay, benefits, seniority, or
advancement opportunities. See [D.E. 32] 9-12; [D.E. 45] 6. Carr responds that her reassignment
was an adverse action because it was a demotion that changed her job title and supervisory authority.
See [D.E. 39] 13-14. .
Under Title VII, material adversity “means [that an employer’s actions] well might have
dissuaded a reasonable worker from making or supporting a charge of discrimination.” White, 548
U.S. at 68. Title VII does not redress “trivial harms” or provide a “general civility code for the
10

American workplace.” Id. (quotation omitted); see Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 80 (1998). Rather, Title VII's anti-retaliation provision prohibits an employer’s actions that
likely to deter victims of discrimination from complaining to the EEOC, the courts, and their
employers.” White, 548 U.S. at 68 (quotation omitted); see Robinson v. Shell Oil Co., 519 U.S. 337,
346 (1997). The court analyzes material adversity from the perspective of an objective, reasonable
employee, and ignores “a plaintiff's unusual subjective feelings.” White, 548 U.S. at 68-69; see

Bryant, 288 F.3d at 134-35. Additionally, the court must account for the “particular circumstances”
surrounding the alleged retaliation. White, 548 U.S. at 69.
Reassignment—and a corresponding change in working conditions—can constitute an
adverse action, but only if it has a “significant detrimental effect” on the plaintiff. Boone v. Goldin,
178 F.3d 253, 256 (4th Cir. 1999); see Adams, 789 F.3d at 429-30; Williams v. Brunswick Cnty.
Bd. of Rdue,, 725 F. Supp. 2d 538, 547 (E.D.N.C. 2010), aff'd, 440 F. App’x 169 (4th Cir. 2011)
(per curiam) (unpublished). When analyzing a transfer or reassignment, the “mere fact that a new
job assignment is less appealing to the employee . . . does not constitute adverse employment
action.” James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 376 (4th Cir. 2004); see Boone, 178
F.3d at 256-57. “[A]bsent any decrease in compensation, job title, level of responsibility, or
‘opportunity for promotion, reassignment to a new position commensurate with one’s salary level
does not constitute an adverse employment action.” Boone, 178 F.3d at 256-57.
The court need not resolve the parties’ dispute about whether Carr’s reassignment was
adverse action. Instead, the court turns to but-for causation.
Defendants argue that Carr presents no evidence that her protected activity on April 1, 2016
(in scheduling the EEO meeting), or April 4, 2016 (in having the EEO meeting), was the but-for
cause of General Gabbert’s decision to reassign her. See [D.E. 32] 12-16; [D.E. 45] 6-7. In
11

support, defendants note that General Gabbert decided to reassign Carr before Thursday, March 31,
2016, and attempted to reach Carr on March 31, 2016, to schedule a meeting for Friday, April 1,
2016, to inform Carr about his decision. See [D.E. 34-8] 2-5. Despite various attempts to reach
Carr on March 31, 2016, General Gabbert could not reach Carr to schedule the meeting and
communicate his decision on Friday, April 1,2016. See [D.E. 32] 12-16; [D.E. 45] 6-7; [D.E. 34-3,
34-4, 34-8]; compare [D.E. 33] ff 47-55 with [D.E. 41] ff] 47-55. Carr responds that the close
temporal proximity between her protected activity on April 1, 2016, and the adverse action on April
4, 2016, are enough to establish a genuine issue of material fact about causation. See DE. 39] 8-9;
Jacobs v. N.C. Admin. Off, of the Courts, 780, F.3d 562, 579 (4th Cir. 2015).
“Retaliation claims . . . require the employee to show that retaliation was a but-for cause of
a challenged adverse employment action.” Guessous, 828 F.3d at 217 (quotation and citation
omitted); see Lashley v. Spartanburg Methodist Coll., 66 F.4th 168, 176 (4th Cir. 2023); Fry v. Rand
Constr. Corp., 964 F.3d 239, 246 (4th Cir. 2020); Strothers, 895 F.3d at 335-36; Villa v. CavaMezze
Grill, LLC, 858 F.3d 896, 900 (4th Cir. 2017); Huckelba v. Deering, No. 5:16-CV-247, 2016 WL
6082032, at *3 (E.D.N.C. Oct. 17, 2016) (unpublished). “Naked allegations of a causal connection
between plaintiff's protected activity and the alleged retaliation do not state a plausible Title VII
claim.” Huckelba, 2016 WL 6082032 at *3. Furthermore, the employee must demonstrate temporal
proximity between the alleged retaliation and the protected activity. See Clark Cnty. Sch. Dist. v.
Breeden, 532 U.S. 268, 273-74 (2001) (per curiam); Hooven-Lewis v. Caldera, 249 F.3d 259, 278
(4th Cir. 2001); Brown v. Wake Cnty. Gov., No. 5:16-CV-806, 2017 WL2982971, at *4 (E.D.N.C.
July 12, 2017) (unpublished); Huckelba, 2016 WL 6082032, at *4.
But-for causation “requires that a plaintiff demonstrate that the decisionmaker imposing the
adverse action have actual knowledge of the protected activity.” Roberts, 998 F.3d at 125. A
12

decisionmaker obviously cannot be motivated by something that the decisionmaker did not know.
See, e.g., Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir.
1998), abrogated on other grounds by Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53 (2006);
Ross v. Comms. Satellite Corp., 759 F.2d 355, 365 n.9 (4th Cir. 1985).
Even viewing the record in the light most favorable to Carr, Carr’s protected activity was not
the but-for cause of General Gabbert’s decision to reassign her. General Gabbert decided before
March 31, 2016, to reassign Carr to the Technical Director position. See [D.E. 34-8] Jf 8-9, 12-25.
General Gabbert instructed Anstadt on March 31, 2016, to contact Carr and schedule a meeting with
Carr on April 1, 2016, so that he could inform Carr of his decision. See id. Carr then avoided
meeting with General Gabbert until April 4, 2016, and scheduled an EEO meeting on April 1, 2016,
to take place on April 4, 2016. At the meeting on April 4, 2016, General Gabbert notified Carr that
he was reassigning her effective immediately. Compare [D.E. 33] ff] 58-59 with [D.E. 41] FJ 58-S9.
Even viewing the record in the light most favorable to Carr, Carr’s protected activity on April
2016, occurred after General Gabbert made the decision to reassign Carr, and Carr has no evidence
that General Gabbert knew about her protected activity before making his decision. See [D.E. 34-8]
8-9, 12-25; see also [D.E. 33] J] 18-24, 47-60; [D.E. 41] 18-24, 47-60. Because General
Gabbert decided to reassign Carr before Carr engaged in her protected activity on April 1, 2016, it
is impossible that Carr’s protected activity was the but-for cause of her reassignment. See Conrad
v. CSX Transp., Inc., 824 F.3d 103, 108 (4th Cir. 2016); Lalanne v. Begin Managed Programs, 346
F. App’x 666, 667 (2d Cir. 2009) (unpublished); Jefferies v. UNC Reg’ Physicians Pediatrics, 392
F, Supp. 3d 620, 629 (M.D.N.C. 2019); Supinger v. Virginia, 167 F. Supp. 3d 795, 812 (W.D. Va.
2016); accord. Clark Cnty. School Dist., 532 U.S. at 272; Roberts, 998 F.3d at 125; Dowe,145 F.3d
at 656; Ross, 759 F.2d at 365 n.9; Swerdloff v. Green Spring Health Servs., Inc., 139 F.3d 892, 1998
13

WL 165783, at *4 (4th Cir. Apr. 2, 1998) (unpublished). Thus, the court grants defendants’ motion
for summary judgment.
In opposition, Carr cites Jacobs. See Jacobs, 780 F.3d at 571. Jacobs, however, provides no
comfort to Carr. In Jacobs, the protected activity occurred before the adverse action, and the
decisionmaker taking the adverse action knew about the protected activity before taking the adverse
action. See id.
I.
In sum, the court GRANTS defendants’ motion for summary judgment [D.E. 31].
Defendants may file a motion for costs in accordance with the Federal Rules of Civil Procedure and
the court’s local rules. The clerk shall close the case. _
SO ORDERED. This 24-day of May, 2023.

= Neve
J S C. DEVER II
United States District Judge

14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10252725. Public record. Not legal advice.