CHO v. DUKE UNIVERSITY

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JUNE CHO, )

)

Plaintiff, )

)

v. ) 1:18CV288

)

DUKE UNIVERSITY and )

MARILYN HOCKENBERRY, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Plaintiff June Cho brings several claims against Defendants

Duke University (“Duke”) and Marilyn Hockenberry

(“Hockenberry”), including defamation, tortious interference

with contract, and national origin discrimination in violation

of federal and state law. (Doc. 7.) Defendants have moved for

summary judgment pursuant to Fed. R. Civ. P. 56. (Doc. 20.)

Plaintiff has responded, (Docs. 25, 26), and Defendants have

filed a reply, (Doc. 27). This court finds that Plaintiff has

failed to raise any genuine issues of material fact regarding

whether Defendant Duke discriminated against Plaintiff based on

national origin or whether Defendant Hockenberry tortiously

interfered with Plaintiff’s contract or defamed her. Defendants’

motion for summary judgment, therefore, will be granted.

I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

Plaintiff was born in South Korea and is now a United

States citizen. (Notice of Filing (Doc. 34) Ex. 1, Deposition of

June Cho (“Cho Dep.”) (Doc. 34-1) at 10.)1 She received her PhD

from the University of North Carolina at Chapel Hill. (Id. at

15.)

Duke hired Plaintiff as an associate professor without

tenure for the academic year beginning July 1, 2015. (Motion of

Defendants Duke University and Marilyn Hockenberry for Summary

Judgment (“Defs.’ Mot.”) (Doc. 20) Ex. 2, Offer Letter (Doc.

20-2) at 2.) Prior to working at Duke, Plaintiff worked as a

faculty researcher at the University of Alabama, Birmingham

(“UAB”). (Cho Dep. (Doc. 34-1) at 15–16.) During her time at

UAB, Plaintiff received an RO1 research grant from the National

Institutes of Health (“NIH”). (Id. at 18–19.) This grant helped

fund Plaintiff’s research, studying testosterone and cortisol

levels in infants. (Pl.’s Mem. in Opp’n to Defs.’ Mot. for Summ.

J. (Pl.’s Resp. Mem. (Doc. 26) Ex. 3, Equal Employment

Opportunity Commission Charge of Discrimination (“EEOC Charge”)

(Doc. 26-3) at 3.) The RO1 grant followed Plaintiff to Duke.

(Cho Dep. (Doc. 34-1) at 23–25.)

1 All citations in this Memorandum Opinion and Order to

documents filed with the court refer to the page numbers located

at the bottom right-hand corner of the documents as they appear

on CM/ECF.

A. Duke University Research Oversight Structure

Several Duke employees supervised Plaintiff and her work.

When Plaintiff arrived at Duke in July 2015, Plaintiff reported

to the Associate Dean for Research for the School of Nursing.

(Id. at 29.) Diane Holditch-Davis was the Associate Dean for

Research until December 2015. (Id. at 20, 28–29.) Defendant

Hockenberry took over as the Duke University School of Nursing

Associate Dean for Research starting in September 2015 until

August 2018, after Plaintiff left Duke. (Id. at 29, 122; Defs.’

Mot. (Doc. 20) Ex. 3, Declaration of Marilyn Hockenberry

(“Hockenberry Decl.”) (Doc. 20-3) ¶ 5.) She did not directly

supervise Plaintiff. (Hockenberry Decl. (Doc. 20-3) ¶ 6.)

Defendant Hockenberry also served as the Clinical Research

Unit Director for Duke University School of Nursing. (Id. ¶ 5.)

As the Clinical Research Unit Director, Defendant Hockenberry

supervised Research Practice Managers, who are part of Clinical

Research Units, which “are responsible for ensuring research

integrity and compliance with all state, federal, and

institutional regulations and policies.” (Id. ¶ 6.) She directly

supervised Phyllis Kennel, the Research Practice Manager

supervising Plaintiff’s study. (Id. ¶ 7.)

Within this structure, “[r]esearch study staff report

directly to the Research Practice Managers, not the Principal

Investigator or ‘PI.’” (Id. ¶ 6.) “This reporting structure is

intended to avoid concerns of undue influence by a PI, which may

be more likely to occur in a centralized power structure.” (Id.)

Plaintiff was the PI for her research project. (Id. ¶ 8.)

Duke also has an Institutional Review Board (“IRB”). (Id.

¶¶ 2–3.) The IRB’s “mission is to ensure the protection of human

research subjects.” (Id. ¶ 3.) The IRB must review and approve

all research study protocols, and any changes to protocols “must

also be submitted and approved prior to implementation.”2 (Id.)

Several others were also involved in supervising and

assisting Plaintiff’s research. Barbara Turner, Chair of the

Health of Women, Children, and Families Division of the Duke

University School of Nursing, served as Plaintiff’s direct

supervisor. (Defendants’ Reply in Support of Summary Judgment

(“Defs.’ Reply”) (Doc. 27) Ex. 1, Second Declaration of Barbara

Turner (Doc. 27-1) ¶ 2.) As Plaintiff’s supervisor, Turner

“conducted [Plaintiff’s] annual performance evaluations.” (Id.

¶ 3.) Kimberley Fisher is the Director of the Neonatal-Perinatal

Research Unit (“NPRU”) at Duke. (Defs.’ Mot. (Doc. 20) Ex. 6,

Declaration of Kimberley Fisher (“Fisher Decl.”) (Doc. 20-6)

¶ 2.) In this role, she worked with both the School of Nursing

and the School of Medicine. (Id.) Though not an official part of

her role, Fisher stepped in as the Study Coordinator for

2 IRBs are common and exist at other research universities.

(Hockenberry Decl. (Doc. 20-3) ¶ 3.)

Plaintiff’s research when the prior Study Coordinator left Duke.

(Id. ¶¶ 4-5.) Marion Broome serves as the Dean for Duke

University School of Nursing. (Defs.’ Mot. (Doc. 20) Ex. 4,

Declaration of Marion Broome (“Broome Decl.”) (Doc. 20-4) ¶ 2.)3

Broome was involved in the decision to hire Plaintiff. (Id.

¶ 3.) Phyllis Kennel served as the Director of Research

Operations and as a Research Practice Manager for the Duke

University School of Nursing Clinical Research Unit from May

2012 to February 2017. (Defs.’ Mot. (Doc. 20) Ex. 8, Declaration

of Phyllis Kennel (“Kennel Decl.”) (Doc. 20-8) ¶ 2.) In her role

as Research Practice Manager, she “provided assistance and

supervisory oversight to Dr. Cho’s research staff.” (Id. ¶ 4.)

Plaintiff’s staff therefore reported directly to Kennel. (Id.;

Cho Dep. (Doc. 34-1) at 31.) Kennel assisted Hockenberry with

the research supervision. (Cho Dep. (Doc. 34-1) at 30–31.) When

Kennel stepped down as a Research Practice Manager for

Plaintiff’s study in February 2017, Heather Adams took over

Kennel’s role. (Hockenberry Decl. (Doc. 20-3) ¶ 174; Defs.’ Mem.

(Doc. 20) at 11.)

3 Broome also serves as the Ruby F. Wilson Professor of

Nursing for Duke University School of Nursing and the Vice

Chancellor for Nursing Affairs at Duke. (Broome Decl. (Doc.

20-4) ¶ 2.) She has held these positions since 2014. (Id.)

4 The date reflected in paragraph 17 of Hockenberry’s

declaration should be March 22, 2017, as opposed to March 22,

2016. (Hockenberry Decl. (Doc. 20-3) ¶ 17.)

B. Issues with Protocol

As noted earlier, when Duke hired Plaintiff, she brought

the R01 grant on infants with her to Duke. (Cho Dep. (Doc. 34-1)

at 23–25.) Once Plaintiff finished transferring the study from

UAB to Duke, Plaintiff experienced several issues with the Duke

research protocol requirements. First, when Plaintiff went over

her research protocol with Fisher, Fisher expressed concern over

some of Plaintiff’s protocols, as they “contradicted the

standard of care practices for Duke’s newborn intensive care

unit and special infant care unit.” (Fisher Decl. (Doc. 20-6)

¶ 3.)5

On another occasion in March 2017, Heather Adams, then an

Assistant Research Practice Manager, went to Defendant

Hockenberry with a complaint about Plaintiff. (Hockenberry Decl.

(Doc. 20-3) ¶ 17.) At that time, Adams had taken over for Kennel

as the CRU point-person for Plaintiff’s research staff. (Id.)

Adams told Defendant Hockenberry that “she walked into

[Plaintiff’s] office and saw [Plaintiff] looking at study

information on a computer with a PhD student [Plaintiff]

5 For instance, Kimberley Fisher explained that “premature

infants are fragile, and it may not be feasible to obtain

multiple saliva samples at 15 minute intervals as stated in the

protocol,” and that “because of space, some infants who are

stable may be moved to another facility prior to reaching 40

weeks when the final pre-discharge sample was to be collected

under [Plaintiff’s] protocol.” (Fisher Decl. (Doc. 20-6) ¶ 3.)

intended to hire.” (Id.) The PhD student had not yet been

approved to work on the study, however. (Id.) Further, Plaintiff

had apparently requested that IT give this student access to

folders containing secure electronic data. (Id.) Defendant

Hockenberry entered the report into the IRB’s electronic

reporting system. (Id.) Plaintiff refutes that she showed the

student the data. (Cho Dep. (Doc. 34-1) at 126.) Plaintiff

emailed Adams asking her whether she had really seen Plaintiff

showing the student data, and that “[i]f you do not answer

within one week, I assume that it was not true.” (Id. at 128–

29.) Adams apparently responded that she did not make the

report. (Id. at 129.)

Further, Defendant Hockenberry allegedly accused Plaintiff

of using a device in her study without permission, (id. at 130),

and of sending data to outside analysts without a proper data

transfer agreement in place, (id. at 130–31). She also allegedly

accused Plaintiff of not properly compensating a research staff

member and failing to respond to emails. (Id. at 131.) Defendant

Hockenberry also noted that Plaintiff attempted to use

unauthorized training materials for her team. (Hockenberry Decl.

(Doc. 20-3) ¶ 12.)

C. Reopening of Study Enrollment at UAB

As a second issue with the protocol requirements, Duke

insisted that the entire study take place at Duke, with the

exception of the existing research subjects at UAB. (Cho Dep.

(Doc. 34-1) at 23–24.) Plaintiff, however, became frustrated at

the low numbers of new subjects enrolling in her study, and in

the fall of 2016, reopened subject recruitment for the study at

UAB without the approval of the Duke IRB. (Id. at 52–53, 64–65.)

This violated Duke’s research protocol. (Id. at 53; Broome Decl.

(Doc. 20-4) ¶ 4.) Plaintiff contends that she received verbal

permission from Turner to reopen enrollment at UAB. (Cho Dep.

(Doc. 34-1) at 54.)

Hockenberry, Fisher, and Kennel found out in November 2016

that Plaintiff had re-opened enrollment at UAB. (Hockenberry

Decl. (Doc. 20-3) ¶ 12; Fisher Decl. (Doc. 20-6) ¶ 7; Kennel

Decl. (Doc. 20-8) ¶ 12.) Fisher consulted with the chief of

Neonatology and the medical director for research concerning

this break from protocol. (Fisher Decl. (Doc. 20-6) ¶ 8.) They

decided that the NPRU would no longer work with Plaintiff; “this

decision meant that recruitment at Duke for this study would no

longer be allowed and [Plaintiff] would need to find another

site.” (Id.) Fisher informed the School of Nursing of this

decision in December 2016. (Id.)

D. Personnel Issues

In the months preceding the re-opening of the UAB

enrollment, Plaintiff also seemed to have trouble with members

of her staff. Plaintiff discouraged her Study Coordinator from

attending medical school at East Carolina University, because it

is not “prestigious.” (Kennel Decl. (Doc. 20-8) ¶ 7.) Plaintiff

also got upset when her data technician needed to be admitted to

the hospital unexpectedly in advance of a scheduled surgery,

which created a one-week gap in coverage. (Id. ¶ 9.) Plaintiff

“believed it was [Kennel’s] job to fill in,” even though it was

not Kennel’s job. (Id.; id. at 7–8.)

In May 2016, Plaintiff also requested that the Duke

statisticians assigned to her project be removed. (Cho Dep.

(Doc. 34-1) at 70–71.) She “had become upset when the

statisticians had not found significant findings and wanted them

to rerun the data to find significance.” (Turner Decl. (Doc.

20-5) ¶ 4.) She instead wanted to work with an outside

consultant at a Texas university, with whom she had worked on

prior studies. (Cho Dep. (Doc. 34-1) at 68–71.) Plaintiff states

that she understood she would need a data transfer agreement in

place in order to work with this outside consultant. (Id. at

72.)

E. Defendant Hockenberry’s Performance Review, the Office

of Audit, Risk and Compliance’s Audit, and the IRB’s

Review

After learning of these various issues, Defendant

Hockenberry consulted with the Vice Dean for Clinical Research

at Duke, who suggested that Defendant Hockenberry reach out to

Duke’s Office of Audit, Risk and Compliance to conduct an audit

of the study. Defendant Hockenberry requested an audit in

mid-November 2016. (Hockenberry Decl. (Doc. 20-3) ¶ 13.)

Defendant Hockenberry also met with Turner, Kennel, Fisher, and

Plaintiff in November 2016 to discuss the enrollment re-opening

at UAB. (Cho Dep. (Doc. 34-1) at 75.) During that meeting,

Defendant Hockenberry told those gathered that she would be

inviting an audit into Plaintiff’s research. (Id. at 80.)

After Defendant Hockenberry requested an audit, enrollment

for Plaintiff’s study was put on hold at both Duke and UAB.

(Hockenberry Decl. (Doc. 20-3) ¶ 13.) The Office of Audit, Risk

and Compliance finished its audit of Plaintiff’s study in

February 2017. (Turner Decl. (Doc. 20-5) ¶ 10.) The audit

apparently noted deviations from the approved IRB protocol,

(id.), but the audit apparently did not find Plaintiff’s conduct

warranted further action or discipline, (Cho Dep. (Doc. 34-1) at

82). Defendant Hockenberry was upset by this result. (Id. at

83.)

Defendant Hockenberry reported the audit and the other

concerns about Plaintiff’s study to the Duke IRB in December

2016. (Turner Decl. (Doc. 20-5) ¶ 8; Hockenberry Decl. (Doc.

20-3) at 13.) The Duke IRB conducted a full board review of

Plaintiff’s study, separate from the audit. (Hockenberry Decl.

(Doc. 20-3) ¶¶ 15–16.)6 “[T]he board unanimously voted to

recommend that based on a pattern of non-compliance,

[Plaintiff’s] PI privileges be revoked.” (Defs.’ Mot. (Doc. 20)

Ex. 7, Declaration of Geeta Swamy (“Swamy Decl.”) (Doc. 20-7)

¶ 5.) The Duke IRB submitted its recommendation to the Dean of

the School of Medicine, “who is an Institutional Officer tasked

with making a determination[] based on IRB recommendations.”

(Id. ¶ 6.) The Dean of the School of Medicine agreed and

“informed [Plaintiff] that her PI privileges were revoked” in

May 2017. (Id.)

Defendant Hockenberry, in late March 2017, went over

Plaintiff’s annual performance review with her. In that review,

Defendant Hockenberry told Plaintiff that Plaintiff had

difficult relationships with people and that Plaintiff had

violated protocols in her research. (Cho Dep. (Doc. 34-1) at

127.)

F. Plaintiff’s Meeting with Turner and Statements

Concerning Plaintiff and Her Husband

In March 8, 2017, Plaintiff met with Turner to discuss the

audit and Defendant Hockenberry. (Id. at 87–88; Turner Decl.

(Doc. 20-5) ¶ 11.) Plaintiff brought her husband with her to

6 While Defendant Hockenberry was one of the IRB chairs

during the IRB’s review of Plaintiff’s study, she did not

participate in the full board review, nor did she play a role in

the board’s recommendation. (Defs.’ Mot. (Doc. 20) Ex. 7,

Declaration of Geeta Swamy (“Swamy Decl.”) (Doc. 20-7) ¶ 7.)

this meeting for moral support. (Cho Dep. (Doc. 34-1) at 117.)

Turner did not allow Plaintiff’s husband into the meeting;

instead, Turner contends that she “asked him to sit in a waiting

area, he objected and shoved past [her] into [her] office.”

(Turner Decl. (Doc. 20-5) ¶ 11.) Turner further says that he

relented once Turner threatened to cancel the meeting. (Id.)

However, Turner states that when she and Plaintiff walked out

after their meeting, “her husband verbally attacked [Turner] and

berated [Turner] such that [Turner] was fearful that [she] might

be struck.” (Id.)7

Plaintiff asserts that sometime after this meeting,

Defendant Hockenberry asked her staff to lock all the doors on

the first floor because Plaintiff could become physically

dangerous. (Cho Dep. (Doc. 34-1) at 133-34.) Plaintiff says that

Dr. Eun Ok Im, a faculty member at the time, whose office was

next to Defendant Hockenberry’s, attempted to get into her

office, but her door was locked. (Id.) Plaintiff contends that

Dr. Im told her that when Dr. Im asked why the door was locked,

“staff say, Marilyn Hockenberry ask us to lock all doors because

[Plaintiff] will come to and maybe harm someone.” (Id. at 134.)

7 Turner’s declaration includes an attachment of her

contemporaneous notes from that day which go into more detail.

(Turner Decl. (Doc. 20-5) at 9–10.)

In her declaration, Dr. Im states that she “asked the staff

member why the doors were locked. The staff member said that it

was a safety precaution because of concerns related to Dr. Cho’s

husband,” but that she could “not recall the specific words.”

(Defs.’ Mot. (Doc. 20) Ex. 9, Declaration of Eun Ok Im (“Im

Decl.”) (Doc. 20-9) ¶ 5.)

Defendant Hockenberry refutes that she made this statement

or any similar statements. (Hockenberry Decl. (Doc. 20-3) ¶ 23.)

She notes that she “was made aware that Dr. Turner had an

interaction with [Plaintiff’s] husband that made her feel

uncomfortable and unsafe.” (Id.)

G. Decision to Not Renew Plaintiff’s Appointment and

Early Termination of Research Grant

Starting in January 2017, Broome, concerned about the

audit, the IRB review, and that the NPRU would no longer support

Plaintiff’s study, consulted with other members of leadership

and made the decision not to renew Plaintiff’s Associate

Professor appointment. (Broome Decl. (Doc. 20-4) ¶ 4.) Broome

signed the letter containing this decision on April 6, 2017.

(Id. ¶ 5.) Turner informed Plaintiff of this decision on

April 12, 2017. (Id.) Duke offered Plaintiff a $27,000 severance

to leave within three months. (Cho Dep. (Doc. 34-1) at 122.)

Plaintiff declined and was paid through June 30, 2018. (Id.)

In May 2017, after the IRB recommended that Plaintiff’s

status as PI on her project be revoked, Broome consulted with

department leadership and determined that “the School of Nursing

should return the grant to the National Institutes of Health.”8

(Broome Decl. (Doc. 20-4) ¶¶ 6–7.)

H. Plaintiff’s Grievance Report

On March 8, 2017, Plaintiff met with Turner to discuss the

audit and Defendant Hockenberry. (Cho Dep. (Doc. 34-1) at 87–88;

Turner Decl. (Doc. 20-5) ¶ 11.) Plaintiff informed Turner that

she wanted to file a complaint of some kind. (Cho Dep. (Doc.

34-1) at 88.) Turner suggested Plaintiff go see the Duke

Ombudsman. (Id. at 99.) On April 3, 2017, Plaintiff delivered

her report to the Ombudsman, who delivered the report to the

Grievance Committee. (Id. at 103; EEOC Charge (Doc. 26-3) at 3.)

Plaintiff’s report discussed Defendant Hockenberry

“micromanaging” Plaintiff’s research, and general “harassment.”

(Cho Dep. (Doc. 34-1) at 102; Hockenberry Decl. (Doc. 20-3)

¶ 21.) Plaintiff also asked for the resignations of Defendant

Hockenberry and Fisher. (Cho Dep. (Doc. 34-1) at 103.)

In June 2017, Defendant Hockenberry, Broome, Turner,

Fisher, and Kennel attended the Faculty Hearing Committee

hearing concerning Plaintiff’s grievance. (Hockenberry Decl.

8 Defendant Hockenberry was not involved in these

discussions. (Broome Decl. (Doc. 20-4) ¶ 7.)

(Doc. 20-3) ¶ 21.) The Committee issued its unanimous decision

in July 2017 finding that Plaintiff was not the subject of

impermissible harassment based on national origin or any other

protected category or academic due process violations. (Id.;

Turner Decl. (Doc. 20-5) ¶ 16; Kennel Decl. (Doc. 20-8) ¶ 14.)

The Committee’s decision apparently “noted that Dr. Cho utilized

the term ‘harassment’ to refer to alleged ‘general mistreatment

by administration that she found detrimental to her research.’”

(Turner Decl. (Doc. 20-5) ¶ 16.)

I. Equal Employment Opportunity Commission (“EEOC”)

Charge

In August 2017, Plaintiff filed a Charge of Discrimination

with the EEOC. (EEOC Charge (Doc. 26-3) at 2.) Plaintiff’s EEOC

Charge discusses Defendant Hockenberry’s involvement in

Plaintiff’s research, which Plaintiff alleges barred her from

being able to move forward with her research. (Id. at 3.)

Plaintiff further alleges that Defendant Hockenberry

discriminated against her based on national origin. (Id.) She

then states that she filed a grievance report against Defendant

Hockenberry on April 3, 2017, and that Plaintiff experienced

three instances of retaliation for filing the grievance report:

(1) the April 12, 2017 notice to Plaintiff that her appointment

would not be renewed after June 2018;9 (2) the May 2017 adoption

of IRB’s recommendation that Plaintiff’s PI status be removed;

and, (3) the May 2017 termination of her RO1 grant. (Id. at

5-7.) Plaintiff noted that she did not know about the EEOC or

national origin discrimination until August 2017. (Id.; Cho Dep.

(Doc. 34-1) at 186.)

J. Procedural History

On December 12, 2017, the EEOC issued Plaintiff a Right-to-

Sue letter and informed Plaintiff that she had ninety days to

file suit. (Complaint (“Compl.”) (Doc. 7) ¶ 41.) Assuming that

Plaintiff received the Right-to-Sue letter on December 12, 2017,

Plaintiff had until March 14, 2018, to file suit. (See id.)

Plaintiff timely filed this suit on March 9, 2018, in Guilford

County Superior Court. (Id.) Shortly thereafter, Defendants

removed this action to this court pursuant to 28 U.S.C. §§ 1331,

1441, and 1446, asserting that Plaintiff’s complaint involves

federal questions and that this court can exercise supplemental

jurisdiction over the remaining state claims pursuant to 28

U.S.C. § 1367(a). (See Petition for Removal (Doc. 1) at 1-4.)

On April 11, 2019, Defendants filed a motion for summary

judgment pursuant to Fed. R. Civ. P. 56. (Defs.’ Mot. (Doc.

20).) Defendants filed a brief in support of this motion,

9 The notice was dated April 6, 2017. (EEOC Charge (Doc.

26-3) at 5.)

(Defs.’ Memorandum in Support of Summary Judgment (“Defs.’ Br.”)

(Doc. 21)), to which Plaintiff responded, (Pl.’s Response in

Opposition to Defendant’s Motion for Summary Judgment (Doc.

25)); Pl.’s Memorandum in Opposition to Defendants’ Motion for

Summary Judgment (“Pl.’s Br.”) (Doc. 26)), and Defendants

replied, (Defs.’ Reply in Support of Summary Judgment (“Defs.’

Reply”) (Doc. 27)).

Defendants argue that there are no genuine issues of

material fact, and that Defendants are entitled to judgment as a

matter of law. (Defs.’ Mot. (Doc. 20) at 1.) In particular,

Defendants argue that Plaintiff “can present no evidence of

national origin discrimination and Dr. Cho’s own testimony

demonstrates that she did not complain of national origin

discrimination until after the acts she contends were

retaliatory.” (Defs.’ Br. (Doc. 21) at 2.) Defendants also argue

that Plaintiff’s defamation claim against Defendant Hockenberry

is “based on incorrect assumptions and inadmissible double-

hearsay” and that “[t]o the extent Dr. Hockenberry reported

concerns about Dr. Cho’s work and performance, she was obligated

to do so in her role as Clinical Research Unit Director and is

entitled to a qualified privilege.” (Id.) Finally, Defendants

argue that Plaintiff’s tortious interference claim fails because

Defendant Hockenberry is a “non-outsider to the alleged

contract,” and that Plaintiff fails to prove actual malice as is

required. (Id.)

II. STANDARD OF REVIEW

Summary judgment is appropriate when “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); see Celotex

Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). This court must

look to substantive law to determine which facts are material —

only those facts “that might affect the outcome of the suit

under the governing law will properly preclude the entry of

summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). “On summary judgment the inferences to be drawn

from the underlying facts . . . must be viewed in the light most

favorable to the party opposing the motion.” United States v.

Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam).

This court therefore must determine whether the evidence

“is so one-sided that one party must prevail as a matter of

law.” Anderson, 477 U.S. at 252. The moving party bears the

initial burden of demonstrating “that there is an absence of

evidence to support the nonmoving party’s case.” Celotex Corp.,

477 U.S. at 325. If the “moving party discharges its burden

. . . , the nonmoving party then must come forward with specific

facts showing that there is a genuine issue for trial.” McLean

v. Patten Cmtys., Inc., 332 F.3d 714, 718–19 (4th Cir. 2003).

III. ANALYSIS

Plaintiff claims that Defendant Hockenberry defamed her and

seeks an injunction against any further “derogatory or

defamatory comments.” (Compl. (Doc. 7) ¶ 15.) Plaintiff further

claims that Defendant Hockenberry tortiously interfered with the

employment relationship between Plaintiff and her employer,

Duke. (Id. ¶ 26.) Finally, Plaintiff claims that Duke, by and

through its authorized agents, discriminated against her based

on national origin in violation of Title VII, as well as “the

public policy of the State of North Carolina” and North Carolina

General Statute § 143-422.1 et seq. (Id. ¶¶ 40, 42.) The court

will address each claim in turn.

A. Defamation

Plaintiff’s common-law defamation claim against Defendant

Hockenberry includes slander per se. (Compl. (Doc. 7) ¶ 9.) She

also seeks an injunction against Defendant Hockenberry to

prevent her from making “any derogatory or defamatory comments

regarding Plaintiff.” (Id. ¶¶ 14–17.)

To succeed on a defamation claim in North Carolina, a

plaintiff must allege that (1) the defendant caused injury to

the plaintiff; (2) by making false, defamatory statements; (3)

of or concerning the plaintiff; and (4) which were published to

a third person. Boyce & Isley, PLLC v. Cooper, 153 N.C. App. 25,

29, 568 S.E.2d 893, 898 (2002). In North Carolina, slander is

included under defamation. “Slander per se is ‘an oral

communication to a third party which amounts to . . . an

allegation that impeaches the plaintiff in his trade, business,

or profession.’” Id. at 29–30, 568 S.E.2d at 898 (quoting

Phillips v. Winston-Salem/Forsyth Cty. Bd. of Educ., 117 N.C.

App. 274, 277, 450 S.E.2d 753, 756 (1994)). “A prima facie

presumption of malice and a conclusive presumption of legal

injury and damage arises when a false statement falling into one

of these categories is spoken.” Barker v. Kimberly-Clark Corp.,

136 N.C. App. 455, 460, 524 S.E.2d 821, 824–25 (2000).

Plaintiff submits evidence that Defendant Hockenberry made

several defamatory statements: that Plaintiff was prone to

violence, (Cho Dep. (Doc. 34-1) at 135–36); that, during a

performance review, Defendant Hockenberry said Plaintiff was bad

at maintaining professional relationships and had violated IRB

protocol, (id. at 127); statements concerning protocol

violations that led to the audit and IRB review, (id. at 128,

130–33, 138); and statements made to Plaintiff’s colleagues

about Plaintiff being a “very bad person and very difficult to

. . . have a relationship with,” (id. at 139), a “really

wrongful researcher,” (id. at 137), and that being friends with

Plaintiff would not help them, (id. at 141–42).

Defendants claim that the alleged defamatory statement

about Plaintiff being prone to violence is inadmissible double

hearsay and therefore cannot serve to overcome Defendants’

motion for summary judgment. (Defs.’ Br. (Doc. 21) at 20.)

Defendants further claim that Defendant Hockenberry’s qualified

privilege protects her other allegedly slanderous statements

relating to the audit or IRB review of Plaintiff’s study. (Id.

at 20-21.) Finally, Defendants argue that the statement that

being friends with Plaintiff would be bad for her colleague’s

career is inadmissible double hearsay. (Defs.’ Supplemental

Brief (Doc. 37) at 6–7.) The court agrees with Defendants.

With regard to the other two statements allegedly made to

Plaintiff’s colleagues, concerning Plaintiff being bad at

relationships and being a bad researcher, neither Plaintiff in

her complaint nor Defendants in their motion for summary

judgment address these statements specifically. Plaintiff’s

complaint is vague as to specific statements; Plaintiff only

states that Defendant Hockenberry “in the presence of diverse

persons and in a public manner, charged and accused Plaintiff of

. . . incompetence and mismanagement in the performance of her

duties . . . .” (Compl. (Doc. 7) ¶ 6.) Plaintiff discusses these

two statements in her deposition. (Cho Dep. (Doc. 34-1) at 137,

139.) The court therefore will address these statements, as they

could potentially fall into the category of defamatory

statements about which Plaintiff complains.

1. Statements about Plaintiff Being Violent

Plaintiff alleges that Defendant Hockenberry defamed her by

allegedly “charg[ing] and accus[ing] Plaintiff of physically

dangerous behavior as well as incompetence and mismanagement in

the performance of her duties with Duke University.” (Compl.

(Doc. 7) ¶ 6.) More specifically, Plaintiff, in her deposition,

asserts that Dr. Im, upon finding that her office door was

locked, asked the staff why the door was locked. (Cho Dep. (Doc.

34-1) at 134.) Plaintiff states that the staff told Dr. Im that

“Marilyn Hockenberry ask us to lock all doors because June Cho

will come to and maybe harm someone.” (Id.)

Any of Plaintiff’s own testimony that Dr. Im told her that

Defendant Hockenberry had told staff, who told Dr. Im, things

about Plaintiff is plainly inadmissible hearsay. Materials

submitted at summary judgment must be presented in a form

admissible in evidence. Fed. R. Civ. P. 56(c)(1)(B), (c)(2),

(c)(4). “[H]earsay evidence, which is inadmissible at trial,

cannot be considered on a motion for summary judgment.” Md.

Highways Contractors Ass’n v. Maryland, 933 F.2d 1246, 1251 (4th

Cir. 1991). When there are multiple levels of hearsay, each

level must independently qualify for an exception to the rule

against hearsay. Fed. R. Evid. 805.

Plaintiff, in her complaint, asserts that “Plaintiff’s

colleagues, including Dr. Im, were warned by Defendant

Hockenberry that Plaintiff would become physically dangerous to

them when she becomes angry.” (Compl. (Doc. 7) ¶ 7.) Dr. Im,

however, asserts that she “do[es] not recall that Dr.

Hockenberry made this statement to [her],” only that “[she]

asked the staff member why the doors were locked. The staff

member said it was a safety precaution because of concerns

related to [Plaintiff’s] husband.” (Im Decl. (Doc. 20-9) ¶ 5.)

Dr. Im’s declaration that the staff told her the doors were

locked because of concerns about Plaintiff’s husband is

therefore inadmissible double hearsay. Here, the first level of

hearsay is what Defendant Hockenberry allegedly told staff. This

statement might be admissible under the party-opponent exception

to the hearsay prohibition. Fed. R. Evid. 801(d)(2)(A). However,

Defendant Hockenberry and Dr. Im deny the statement.

(Hockenberry Decl. (Doc. 20-3) ¶ 23; Im Decl. (Doc. 20-9) ¶ 5.)

Plaintiff has not identified a staff member who can testify to

the statement; therefore, the second level of hearsay is what

the staff said to Dr. Im. There is no applicable hearsay

exception for the staff’s statement.10

Because the only evidence submitted on this statement is

inadmissible double hearsay, Plaintiff does not create a genuine

10 While the staff’s statement to Dr. Im could arguably come

in under the party-opponent’s employee hearsay exception under

Fed. R. Evid. 801(d)(2)(D), this exception cannot apply because

Plaintiff is not suing Duke for defamation.

issue of material fact as Plaintiff has failed to present

evidence in admissible form, nor has Plaintiff shown how this

evidence might be admissible at trial.

2. Statements During Annual Performance Review and

Statements Leading to the Audit and IRB Review

Plaintiff also submits evidence that Defendant

Hockenberry’s statements that led to the audit and the IRB

review of Plaintiff’s projects, as well as her statements to

Plaintiff during her annual performance review, were defamatory.

Plaintiff states that “Marilyn Hockenberry said I had very

wrong relationship, very difficult relationship with others, and

I made some violations on my research . . . Hockenberry was

really concern about my research activity.” (Cho Dep. (Doc.

34-1) at 127.) These statements were allegedly made in

connection with or during Plaintiff’s annual performance review.

(Id.)

These statements, made to Plaintiff alone during a

performance review, are not defamatory under the circumstances,

however. To be defamatory, the statements must be “published to

a third person.” Boyce & Isley, PLLC, 153 N.C. App. at 29, 568

S.E.2d at 898. Because Plaintiff submits no evidence that

Defendant Hockenberry included these comments in any sort of

official report read by someone else or made these statements to

anyone other than Plaintiff, the court finds these statements

are not defamatory as a matter of law.

Further, Plaintiff alleges that Defendant Hockenberry’s

reports to the IRB and the Office of Audit, Risk and Compliance

were defamatory. These include Defendant Hockenberry’s reports

that Plaintiff allowed an unauthorized PhD student to access

study data, (Cho Dep. (Doc. 34-1) at 125-26), reporting the

re-opening of enrollment at UAB without permission, (id. at

130), that Plaintiff was using a device in her study without

permission, (id.), and that Plaintiff was sending data to

outside analysts without a proper data transfer agreement, (id.

at 130–31).

Defendant Hockenberry has a qualified privilege to discuss

and address perceived issues with those individuals whom she

supervises or other Duke supervisors.

A statement which would otherwise qualify as slander per se

may be protected by privilege.

A qualified or conditionally privileged

communication is one made in good faith on any subject

matter in which the person communicating has an

interest, or in reference to which he has a right or

duty, if made to a person having a corresponding

interest or duty on a privileged occasion and in a

manner and under circumstances fairly warranted by the

occasion and duty, right, or interest.

Stewart v. Nation-Wide Check Corp., 279 N.C. 278, 285, 182

S.E.2d 410, 415 (1971). “Where the affirmative defense of

privilege is alleged, the burden is on the defendant to

establish facts sufficient to show that the publication of the

alleged defamation was made on a privileged occasion.” Shuping

v. Barber, 89 N.C. App. 242, 245, 365 S.E.2d 712, 714 (1988).

“The existence of the privilege creates a presumption that the

communication was made in good faith and without malice.”

Phillips, 117 N.C. App. at 278, 450 S.E.2d at 756. “The burden

then falls upon the claimant to show either actual malice on the

part of the declarant or excessive publication.” Market Am.,

Inc. v. Christman-Orth, 135 N.C. App. 143, 150, 520 S.E.2d 570,

576 (1999).

Actual malice may be demonstrated by “evidence of ill-will

or personal hostility on the part of the declarant . . . or by a

showing that the declarant published the defamatory statement

with knowledge that it was false, with reckless disregard for

the truth or with a high degree of awareness of its probable

falsity.” Clark v. Brown, 99 N.C. App. 255, 263, 393 S.E.2d 134,

138 (1990). Summary judgment is “most appropriate . . . where

plaintiff, who, assuming the burden of production to negate

defendant’s presumption of good faith with evidence of actual

malice, sets forth no specific fact showing an issue as to

defendant’s motive, but rests upon bare allegation and

suspicion.” Dobson v. Harris, 352 N.C. 77, 87, 530 S.E.2d 829,

837 (2000).

Defendant Hockenberry has presented facts which are not

disputed and which establish that the elements of qualified

privilege are all present here. First, Defendant Hockenberry, in

her role as Associate Dean for Research and Clinical Research

Unit Director, had a duty “to report the audit and related

concerns about Dr. Cho’s study to the Duke IRB.” (Hockenberry

Decl. (Doc. 20-3) ¶ 15.) Indeed, Plaintiff even admits that it

was “reasonable for [Defendant Hockenberry] to raise concerns

about work performance or perceived security issues or perceived

protocol deviations,” that it was “[a]bsolutely her job, and

that’s her good reason to give hard time to [Plaintiff],” and

that “part of her role was to protect the university.” (Cho Dep.

(Doc. 34-1 at 183–84.) Plaintiff also admits that it was within

the scope of Defendant Hockenberry’s role to request an audit.

(Id. at 78.) Defendant Hockenberry was therefore obligated to

report Adams’ report that she had witnessed Plaintiff looking at

study information with a PhD student who had not yet been

officially approved on the study; she was also obligated to

report Plaintiff’s re-opening of recruitment at UAB.

(Hockenberry Decl. (Doc. 20-3) ¶¶ 10, 12, 17.)

The second requirement, that the statements be made to a

person having a corresponding interest or duty, is also

satisfied here for all the statements. The Duke IRB and Office

of Audit, Risk and Compliance both had a corresponding duty or

interest in maintaining the integrity of research done at Duke

or investigating any protocol deviations. (See id. ¶ 16; Swamy

Decl. (Doc. 20-7) ¶ 3.)

The third requirement, that the statements be made on a

“privileged” or “proper” occasion, is satisfied here as well.

Plaintiff does not allege any disclosure of statements outside

of official reporting channels or to anyone outside the Duke

administration; at a minimum, Plaintiff does not dispute this

finding. (Cho Dep. (Doc. 34-1) at 160.) Reporting potential

misconduct through the appropriate private administrative

channels is “privileged” in nature, see Phillips, 117 N.C. App.

at 278, 450 S.E.2d at 756 (finding that an employee’s report of

the plaintiff’s misconduct to the superintendent was privileged,

when it was done privately), or is at least the proper occasion

to pass these issues along to the administrative processes

likely required to address these issues. Plaintiff submits no

evidence to the contrary. Plaintiff admits that she is not aware

of whether Defendant Hockenberry made defamatory comments to

anyone outside of Duke. (Cho Dep. (Doc. 34-1) at 160.)

Fourth, Defendant Hockenberry made all of these statements

in a “manner and under circumstances fairly warranted by the

occasion and duty, right, or interest.” As one of Plaintiff’s

supervisors, these comments are entirely appropriate for a

performance review or for a report of “perceived protocol

violations,” given the numerous reported complaints regarding

Plaintiff’s difficulties with staff and following protocols.

These complaints included, among others, Plaintiff allegedly

granting a PhD student unauthorized access to secure electronic

data, re-opening the study at UAB, and attempting to use

unauthorized training materials. (Hockenberry Decl. (Doc. 20-3)

¶¶ 12, 14, 17.) In sum, Defendant Hockenberry’s statements

concerning Plaintiff’s personnel issues and Plaintiff’s research

are shielded by qualified privilege; in order to defeat summary

judgment, Plaintiff must provide some evidence that Defendants

acted with malice. See Shreve v. Duke Power Co., 97 N.C. App.

648, 651, 389 S.E.2d 444, 446 (1990) (“The existence of a

privilege creates a presumption that the statement was made in

good faith and without malice.”). Defendant Hockenberry has

established the elements of qualified privilege; the burden then

shifts to Plaintiff to prove actual malice. See Towne v. Cope,

32 N.C. App. 660, 664, 233 S.E.2d 624, 627 (1977).

Plaintiff does not, however, create a genuine issue of

material fact with respect to whether Defendant Hockenberry made

these statements in good faith. Plaintiff submits only her

deposition in support of her allegations. In particular

Plaintiff states that “Marilyn Hockenberry said I had very wrong

relationship, very difficult relationship with others, and I

made some violations on my research . . . Hockenberry was really

concern about my research activity.” (Cho Dep. (Doc. 34-1) at

127.) This is not enough, considered in the context of a one-on-

one performance review, to rise to the level of bad faith or

actual malice. See Phillips, 117 N.C. App. at 278, 450 S.E.2d at

756.

Plaintiff also offers no evidence to demonstrate that

Defendant Hockenberry submitted the report, concerning whether

Plaintiff showed sensitive data to a PhD student, to the IRB in

bad faith. See Shreve, 97 N.C. App. at 651, 389 S.E.2d at 446.

Plaintiff only provides her deposition testimony that Adams told

her in an email that Adams was “very sorry” and that it was not

her who reported Plaintiff to the IRB. (Cho Dep. (Doc. 34-1) at

129.) As noted above, however, the court will not consider

inadmissible hearsay on a summary judgment motion. Md. Highways

Contractors Ass’n, 933 F.2d at 1251. Plaintiff therefore offers

nothing but her own testimony that this report was made in bad

faith or with actual malice.

Defendant Hockenberry’s statements to Plaintiff during the

performance review and about Plaintiff’s research to the Office

of Audit, Risk and Compliance and the IRB were therefore

“limited in . . . scope to [her] purpose,” were done on “a

proper occasion,” and “publi[shed] in a proper manner and to

proper parties only.” Harris, 102 N.C. App. at 331, 401 S.E.2d

at 850. Because Defendant Hockenberry’s statements are

privileged, and Plaintiff fails to prove actual malice or a lack

of good faith, Plaintiff fails to create a genuine issue of

material fact that these statements are defamatory.

3. Other Statements Defendant Hockenberry

Purportedly Made

Plaintiff offers three other examples of defamatory

comments made to colleagues. First, in Plaintiff’s words, “Most

important first is the first meeting and called everybody and

just treat me as a really wrongful researcher, I do this and I

did this, that’s all first fabrication . . . .” (Cho Dep. (Doc.

34-1) at 137.) In a second example, Plaintiff submits that

Defendant Hockenberry said “that [Plaintiff is a] very bad

person and very difficult to relate – have a relationship with,

and my research all projects are not – what I have done is

really concern, and just be careful about June Cho.” (Id. at

139.) Third and finally, Plaintiff asserts that “Hockenberry

advise Im, just away from June Cho and nothing will help you if

you keep that relationship.” (Id. at 141.)

Regarding the first statement, Plaintiff submits nothing

more than that bare assertion of what Defendant Hockenberry

said. Defendant Hockenberry’s statement, on its face, does not

raise a genuine issue of material fact as to whether it

“impeaches the plaintiff in h[er] trade, business, or

profession.” Boyce & Isley, PLLC, 153 N.C. App. at 29–30, 568

S.E.2d at 898. The only part of that allegation that could be

considered defamatory — “wrongful researcher” — describes the

manner in which Plaintiff believes she was treated, not what any

Defendant said. This statement therefore is not defamatory as a

matter of law.

Plaintiff also asserts that Defendant Hockenberry told

Plaintiff’s colleagues that Plaintiff is a “very bad person and

very difficult to relate – have a relationship with.” (Cho Dep.

(Doc. 34-1) at 139.) Plaintiff fails, however, to provide any

other facts to support this assertion. She does not list to whom

these statements were made nor any specific occasions when these

statements were made. Without more,11 this assertion does not

rise to the level of specific facts sufficient to create a

genuine issue of material fact. See Richmond, Fredericksburg &

Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.

1991).

As to the third statement, Plaintiff offers as evidence a

statement Defendant Hockenberry made to Dr. Im around May 2018,

in which she told Dr. Im to stay away from Plaintiff “and

11 Plaintiff fails to present any facts as to what may have

been specifically said. The allegations that Plaintiff is a “bad

person” and “difficult to . . . have a relationship with,”

standing alone, are personal opinions, not slanderous

statements. See Daniels v. Metro Magazine Holding Co., 179 N.C.

App. 533, 539, 634 S.E.2d 586, 590 (2006) (“Rhetorical hyperbole

and expressions of opinions not asserting provable facts are

protected speech.”).

nothing will help you if you keep that relationship.” (Cho Dep.

(Doc. 34-1) at 141–42.) Because neither party explicitly

addressed this statement in their original briefs, this court

requested supplemental briefing on whether this statement is

defamatory as a matter of law, and whether this statement would

be admissible in evidence as to comport with Federal Rule of

Civil Procedure 56(c)(2). (Doc. 35.) Both parties filed briefs

in response. (Docs. 36, 37.)

Plaintiff contends that this statement is admissible and

defamatory. Plaintiff cites four exceptions to the Federal Rules

of Evidence’s general prohibition on hearsay: (1) that Rule 801

allows “a statement made by an employee on an issue within the

scope of his/her employment”; (2) that it was an excited

utterance under Rule 803; (3) that it was evidence of a then-

existing emotional condition of Defendant Hockenberry under Rule

803; and (4) that it falls within Rule 807’s residual exceptions

clause. (Pl.’s Supplemental Brief (Doc. 36) at 4–5.) The court

finds that none of these exceptions apply here.

For a double-hearsay statement to be admitted, there must

be an applicable exception for each level of hearsay. Fed. R.

Evid. 805. The statement at issue here is double hearsay: the

first level is what someone told Plaintiff and the second level

is what Defendant Hockenberry said to Dr. Im. Plaintiff has not

clarified where she heard this statement from, therefore this

court cannot say whether there is an applicable hearsay

exception for that recitation of Defendant Hockenberry’s

statement. Plaintiff only states that “[o]ne may not expect the

statement to have been addressed by Dr. Im in the statement

presented previously,” (id. at 5), but this does not clarify

whether Dr. Im was the way Plaintiff heard about Defendant

Hockenberry’s alleged statement. Nevertheless, Plaintiff has not

provided an exception for what the court can only guess is Dr.

Im, or another Duke employee, allegedly telling Plaintiff what

Defendant Hockenberry said.12 Because this is inadmissible double

hearsay, and Plaintiff has failed to demonstrate how this

statement might be admissible at trial, the court may not

consider it on Defendants’ motion for summary judgment.

Plaintiff thus does not create a genuine issue of material fact

as to whether this statement is defamatory.

4. Defendant Hockenberry Did Not Defame Plaintiff as

a Matter of Law

Because Plaintiff’s evidence with regard to statements

about Plaintiff’s alleged violence and other statements made to

Plaintiff’s colleagues is inadmissible, and the statements made

during Plaintiff’s annual review and to the IRB and the Office

12 If it was a Duke employee who told Plaintiff what

Defendant Hockenberry allegedly said, the party-opponent’s

employee hearsay exception under Fed. R. Evid. 801(d)(2)(D)

would not apply because Plaintiff is not suing Duke for

defamation.

of Audit, Risk and Compliance are protected by qualified

privilege, Plaintiff fails to create a genuine issue of material

fact for these statements.

Plaintiff’s claim for an injunction against Defendant

Hockenberry is based upon the same facts this court finds

insufficient to establish a claim on the merits. The claim for a

preliminary injunction will be denied as a matter of law.

B. Tortious Interference with Contract

Plaintiff alleges Defendant Hockenberry interfered with her

contract with Duke and raises a claim of tortious interference

with contract under North Carolina law. (Compl. (Doc. 7) at 3.)

Specifically, she alleges that Defendant Hockenberry reported

alleged protocol violations to the IRB and requested an audit,

and that this was done intentionally to interfere with

Plaintiff’s contract. (Id. at 4.)

To prevail on a tortious interference with contract claim

under North Carolina law, a plaintiff must show: “(1) the

existence of a valid contract between plaintiff and a third

party; (2) knowledge by defendant of the contract; (3) acts by

defendant to intentionally induce the third party not to perform

the contract; (4) defendant's acts were committed without

justification; and (5) actual damage to the plaintiff.” Barker,

136 N.C. App. at 462, 524 S.E.2d at 826. “A plaintiff may

maintain a claim for tortious interference with contract even if

the employment contract is terminable at will.” Bloch v. Paul

Revere Life Ins. Co., 143 N.C. App. 228, 239, 547 S.E.2d 51, 59

(2001). “Bad motive is the essence of a claim for tortious

interference with contract.” Id.

Here, elements one and two are satisfied, which Defendants

do not dispute: There was a valid contract between Plaintiff and

Duke, and Defendant Hockenberry knew of this contract. (Defs.’

Br. (Doc. 21) at 3, 22.) With regard to the third element — acts

by defendant to intentionally induce the third party not to

perform the contract — Defendant Hockenberry contests that she

induced Duke not to renew Plaintiff’s contract. (Defs.’ Reply

(Doc. 27) at 12.)

The question for this court, therefore, is whether an issue

of material fact exists that could cause a reasonable juror to

find that Defendant Hockenberry wrongfully induced Duke to not

renew Plaintiff’s contract. “Inducement” is defined as “[t]he

act or process of enticing or persuading another person to take

a certain course of action.” Inducement, Black's Law Dictionary

(11th ed. 2019). This court finds as follows: (1) that Plaintiff

fails to submit facts which are admissible to establish any

inducement by Defendant Hockenberry; and (2) even if Defendant

Hockenberry induced Duke not to renew Plaintiff’s contract, that

inducement was not wrongful because Defendant Hockenberry

established that she is not an outsider to the contract.

While Plaintiff submits evidence that Defendant

Hockenberry, by reporting alleged protocol violations to the IRB

and requesting an audit, set events in motion that culminated in

Duke not renewing Plaintiff’s contract, (Hockenberry Decl. (Doc.

20-3) ¶¶ 13, 15, 17; Broome Decl. (Doc. 20-4) ¶ 4), Plaintiff

does not submit sufficient evidence that Defendant Hockenberry’s

acts were intended to “entic[e] or persuad[e]” Duke not to

perform the contract. Plaintiff only asserts that Defendant

Hockenberry wrote Plaintiff’s termination letter, which was

signed by Broome. (Cho Dep. (Doc. 34-1) at 107–08.) She contends

that “Dr. Im told [Plaintiff] that a physician had told her that

Dr. Hockenberry was asked to resign because she had done

something without the Dean’s permission.”13 (Id. at 108.)

This assertion cannot serve as a basis for finding a

genuine issue of material fact because it is predicated on

13 Plaintiff’s full statement concerning this incident is as

follows:

I thought that decision made by Marilyn Hockenberry

rather than Dean Broome, because first, Dean Broome is

traveling, and second, that there is evidence that

when Eun-Ok Im had interview with medical doctors

before becoming new ADR, the medical doctor told Im,

Do you know why Marilyn Hockenberry has to retire, and

Im said, I don’t know, I don’t have any idea. And then

medical doctor ask Im, Go to Marilyn Hockenberry and

ask her why she has to retire. And Im said, How can I

ask? And the medical doctor said, She did something

without Dean permission.

(Cho Dep. (Doc. 34-1) at 107–08.)

inadmissible double hearsay, as there are no applicable

exceptions for either statement, neither Im’s nor the

physician’s. As noted above, the court will not consider

inadmissible hearsay on a summary judgment motion. Md. Highways

Contractors Ass’n, 933 F.2d at 1251. Plaintiff’s assertion that

Defendant Hockenberry essentially took matters into her own

hands to fire Plaintiff is based entirely on what Dr. Im told

Plaintiff, and what a doctor told Dr. Im. Both levels of this

assertion are based on inadmissible hearsay. Plaintiff submits

no other evidence tending to prove Defendant Hockenberry forged

Plaintiff’s termination letter, therefore, the court will not

consider this statement in determining whether Defendant

Hockenberry induced Duke to end Plaintiff’s contract.

Even if the court were to find that Defendant Hockenberry

had induced Duke not to renew Plaintiff’s contract, Defendant

Hockenberry was justified in doing so under the fourth element

of tortious interference, concerning whether a defendant was

justified in interfering with a contract.

In arguing that Defendant Hockenberry would have been

justified in interfering with Plaintiff’s contract, Defendants

argue that Defendant Hockenberry was a non-outsider to

Plaintiff’s contract with Duke. With regard to the justification

requirement, “[w]hether a defendant is justified in interfering

with a plaintiff’s contract depends upon ‘the circumstances

surrounding the interference, the actor's motive or conduct, the

interests sought to be advanced, the social interest in

protecting the freedom of action of the actor[,] and the

contractual interests of the other party.’” Bloch, 143 N.C. App.

at 239-40, 547 S.E.2d at 59 (quoting Robinson, Bradshaw &

Hinson, P.A. v. Smith, 129 N.C. App. 305, 317, 498 S.E.2d 841,

850 (1998)). A non-outsider is one who “though not a party to

the terminated contract, had a legitimate business interest of

[her] own in the subject matter.” Smith v. Ford Motor Co., 289

N.C. 71, 87, 221 S.E.2d 282, 292 (1976). The status of non-

outsider “is pertinent only to the question of [the]

justification for [defendants’] action.” Id. at 88, 221 S.E.2d

at 292. The burden is on a defendant to prove that they are a

non-outsider and therefore justified in their actions. See

Embree Constr. Group, Inc. v. Rafcor, Inc., 330 N.C. 487, 499,

411 S.E.2d 916, 925 (1992) (holding that justification is an

affirmative defense in tortious interference cases and therefore

the burden is on the defendant).

Generally, “‘non-outsiders’ often enjoy qualified immunity

from liability for inducing their corporation or other entity to

breach its contract with an employee.” Lenzer v. Flaherty, 106

N.C. App. 496, 513, 418 S.E.2d 276, 286 (1992). However, “[t]he

qualified privilege of a non-outsider is lost if exercised for

motives other than reasonable, good faith attempts to protect

the non-outsider’s interests in the contract interfered with.”

Id., 418 S.E.2d at 286.

“In order to hold a ‘non-outsider’ liable for tortious

interference with contract, a plaintiff must establish that the

defendant acted with legal malice, that ‘[s]he does a wrongful

act or exceeds h[er] legal right or authority in order to

prevent the continuation of the contract between the parties.’”

Bloch, 143 N.C. App. at 240, 547 S.E.2d at 60 (quoting Robinson,

Bradshaw & Hinson, 129 N.C. App. at 318, 498 S.E.2d at 851).

Plaintiff claims that “Hockenberry is an outsider to the

subject contract between Plaintiff and Duke,” (Pl.’s Resp. (Doc.

26) at 12), but offers no facts to support that claim. The

undisputed facts establish that Defendant Hockenberry was an

employee of Duke, a party to the contract. The facts are not

disputed that Defendant Hockenberry was Plaintiff’s supervisor

and “had a legitimate business interest of [her] own in the

subject matter” of Plaintiff’s performance of her duties. See

Smith, 289 N.C. at 87, 221 S.E.2d at 292. Indeed, Plaintiff

concedes that it was “[a]bsolutely her job, and that’s her good

reason to give hard time to [Plaintiff],” and that “part of her

role was to protect the university.” (Cho Dep. (Doc. 34-1 at

183–84.) The court will therefore treat Defendant Hockenberry as

a non-outsider to Plaintiff’s contract.

Because the court is treating Defendant Hockenberry as a

non-outsider to Plaintiff’s contract, Plaintiff must establish

Defendant Hockenberry acted with “legal malice” — that she did a

“wrongful act or exceed[ed] h[er] legal right or authority in

order to prevent the continuation of the contract between the

parties.” Bloch, 143 N.C. App. at 240, 547 S.E.2d at 60

(internal quotation marks omitted). Plaintiff submits no

evidence that Defendant Hockenberry committed a “wrongful act”

or exceeded her authority in reporting alleged protocol breaches

to the relevant authority within the Duke administration.

Plaintiff admits that it was “reasonable for [Defendant

Hockenberry] to raise concerns about work performance or

perceived security issues or perceived protocol deviations,”

that it was “[a]bsolutely her job, and that’s her good reason to

give hard time to [Plaintiff],” and that “part of her role was

to protect the university.” (Cho Dep. (Doc. 34-1 at 183–84.)

Plaintiff also admits that it was within the scope of Defendant

Hockenberry’s role to request an audit. (Id. at 78.) Plaintiff

therefore does not raise a genuine issue of material fact as to

whether Defendant Hockenberry was justified in reporting

potential protocol breaches.

Because there is no evidence that Defendant Hockenberry

intentionally or wrongfully induced Duke not to renew

Plaintiff’s contract, the court need not address whether

Plaintiff sustained actual damages from Duke not renewing her

contract. Plaintiff fails to raise a genuine issue of material

fact as to whether Defendant Hockenberry tortiously interfered

with her contract with Duke, and therefore Defendants’ motion

for summary judgment as to this claim will be granted.

C. National Origin Discrimination and Retaliation

Plaintiff fails to submit any direct evidence of

discrimination and fails to make out a prima facie case of

discrimination. For those reasons, Defendants’ motion for

summary judgment as to this claim will be granted.

1. National Origin Discrimination

Plaintiff has not submitted direct evidence of intentional

discrimination, and both parties agree Plaintiff is proceeding

upon a circumstantial case of discrimination under Title VII.

(See Defs.’ Br. (Doc. 21) at 14–15; Pl.’s Br. (Doc. 26) at 6.)

In the absence of any direct evidence of discrimination,

the Fourth Circuit applies the McDonnell Douglas framework to

employment discrimination cases. Goode v. Cent. Va. Legal Aid

Soc’y, Inc., 807 F.3d 619, 626 (4th Cir. 2015). Under the

McDonnell Douglas framework, a plaintiff “has the burden of

proving by the preponderance of the evidence a prima facie case

of discrimination.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450

U.S. 248, 253 (1981). To establish a prima facie case of

discrimination, the plaintiff must demonstrate “(1) membership

in a protected class; (2) satisfactory job performance; (3)

adverse employment action; and (4) different treatment from

similarly situated employees outside the protected class.”

Goode, 807 F.3d at 626 (quoting Coleman v. Md. Court of Appeals,

626 F.3d 187, 190 (4th Cir. 2010)).

After a plaintiff successfully makes out a prima facie case

of discrimination, “the defendant may respond by producing

evidence that it acted with a legitimate, nondiscriminatory

reason,” at which point the “plaintiff may adduce evidence

showing that the defendant’s proffered reason was mere pretext

and that [national origin] was the real reason for the

defendant’s less favorable treatment of the plaintiff.” Williams

v. Staples, Inc., 372 F.3d 662, 667 (4th Cir. 2004). While the

burden shifts back and forth between the plaintiff and

defendant, “[t]he ultimate burden of persuading the trier of

fact that the defendant intentionally discriminated against the

plaintiff remains at all time with the plaintiff.” Tex. Dep’t of

Cmty. Affairs, 450 U.S. at 253.

Plaintiff satisfies the first prong, as Plaintiff is a

member of a protected class as a Korean-born person. (Cho Dep.

(Doc. 34-1) at 10.) Even assuming Plaintiff has established she

satisfactorily performed her job and was terminated, Plaintiff

has failed to present any evidence that other similarly situated

individuals were treated differently. Plaintiff does not address

the similarly situated requirement in her response outside of

her recitation of the prima facie requirements, (Pl.’s Resp.

(Doc. 26) at 6–7); Plaintiff submits no evidence, admissible or

not, of similarly situated comparators in her deposition or in

any of the other evidence she submits, including her EEOC

Charge, a Duke interrogatory, and a deposition of her husband.

There is no genuine issue of material fact if the nonmoving

party fails to make a sufficient showing of an essential element

of its case as to which it would have the burden of proof at

trial. See Celotex, 477 U.S. at 322–23.

In the absence of any evidence that individuals outside the

protected class were treated differently in their employment,

the facts submitted do not present an issue of fact that

Plaintiff’s termination was based upon improper discrimination.

Because Plaintiff has failed to make a sufficient showing on an

essential element of the prima facie case, Plaintiff fails to

raise a genuine dispute as to any material fact with regard to

whether Defendants discriminated against her. Plaintiff’s claim

for national origin discrimination must fail.

2. Retaliation

Title VII prohibits an employer from “retaliating against

an employee for complaining about prior discrimination.” Foster

v. Univ. of Md.–E. Shore, 787 F.3d 243, 249 (4th Cir. 2015). To

establish a prima facie case of retaliation, “a plaintiff must

prove (1) that she engaged in a protected activity, as well as

(2) that her employer took an adverse employment action against

her, and (3) that there was a causal link between the two

events.” Boyer–Liberto v. Fontainebleau Corp., 786 F.3d 264, 281

(4th Cir. 2015) (internal quotation marks omitted). Filing an

EEOC charge is a protected activity. 42 U.S.C. § 2000e–3(a).

Title VII retaliation claims require a showing that the action

would not have happened but for the plaintiff's protected

activity. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338,

360 (2013).

Retaliatory actions “need not ‘affect the terms and

conditions of employment’” but must be “‘materially

adverse’[ ]such that they ‘might have dissuaded a reasonable

worker’ from engaging in protected activity.” Strothers v. City

of Laurel, 895 F.3d 317, 327 (4th Cir. 2018) (quoting Burlington

N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64, 68 (2006)).

Once an employee makes out a prima facie case, the employer

bears the burden of producing a legitimate nonretaliatory reason

for the materially adverse action. See id. at 328. The employee

then bears the burden of showing, by a preponderance of the

evidence, that the employer's stated rationale is a pretext for

retaliation. Id.

Title VII makes it “an unlawful employment practice for an

employer . . . to discriminate against any individual with

respect to [her] compensation, terms, conditions, or privileges

of employment, because of such individual's race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).

Title VII also prohibits retaliation by a private employer

against an employee because the employee has (1) “made a charge,

testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing” under Title VII or (2)

“opposed any practice made an unlawful employment practice by”

Title VII. 42 U.S.C. § 2000e-3(a). These are referred to as the

participation clause and the opposition clause, respectively.

Under the opposition clause, “an employee is protected when she

opposes not only . . . employment actions actually unlawful

under Title VII but also employment actions she reasonably

believes to be unlawful.” Boyer-Liberto, 786 F.3d at 282

(alterations and internal quotation marks omitted); Strothers,

895 F.3d at 327. This opposition activity, however, is only

protected if an employee's subjective belief is also

“objectively reasonable in light of the facts.” Peters v.

Jenney, 327 F.3d 307, 321 (4th Cir. 2003); see also Strothers,

895 F.3d at 327.

Plaintiff alleges that Duke retaliated against her for

filing her grievance report. (Compl. (Doc. 7) at 4–5.)

Plaintiff’s grievance report, however, was focused on Defendant

Hockenberry’s managerial style: that Defendant Hockenberry

tended to micromanage, that she needed to be copied on emails,

and that she tended to only point out Plaintiff’s failures and

did not compliment Plaintiff when she succeeded. (Cho Dep. (Doc.

34-1) at 89.) Title VII only provides protection against

discrimination on the basis of “race, color, religion, sex, or

national origin.” 42 U.S.C. § 2000e-2(a)(1); see also Burlington

N. & Santa Fe Ry., 548 U.S. at 68 (citing, with approval, a

treatise that notes that “personality conflicts at work that

generate antipathy and snubbing by supervisors and co-workers

are not actionable” (internal quotation marks omitted)). As

such, Plaintiff could not have had a reasonable belief that the

conduct she was opposing violated Title VII, because she was not

even complaining of discrimination: Plaintiff was complaining

about Defendant Hockenberry’s management style. This grievance

therefore does not constitute protected activity.

Plaintiff submits no other evidence or argument that

Defendants retaliated against her for any other activity.

Plaintiff thus fails to meet the first element of the prima

facie case of retaliation, that she was engaged in protected

activity. There is no genuine issue of material fact if the

nonmoving party fails to make a sufficient showing on an

essential element of its case as to which it would have the

burden of proof at trial. See Celotex, 477 U.S. at 322–23.

Because Plaintiff cannot make out a prima facie case of

retaliation, Plaintiff fails to raise a genuine issue of

material fact as to whether Defendants retaliated against her

for her national origin discrimination claims. The court will

grant Defendant’ motion for summary judgment on this claim.

D. North Carolina Public Policy and Statutory Claims

Plaintiff also claims that Defendant Duke’s conduct

violated the public policy of the State of North Carolina and

N.C. Gen. Stat. § 143-422.1 et seq. (Compl. (Doc. 7) ¶ 40.)

North Carolina Equal Employment Practices Act (“NCEEPA”),

the North Carolina state law on which Plaintiff bases this

claim, states:

It is the public policy of this State to protect

and safeguard the right and opportunity of all persons

to seek, obtain and hold employment without

discrimination or abridgement on account of race,

religion, color, national origin, age, sex or handicap

by employers which regularly employ 15 or more

employees.

N.C. Gen. Stat. § 143-422.2(a). North Carolina courts, when

interpreting NCEEPA, “look to federal decisions for guidance in

establishing evidentiary standards and principles of law to be

applied in discrimination cases.” Abels v. Renfro Corp., 335

N.C. 209, 218, 436 S.E.2d 822, 827 (1993) (quoting Dep’t of

Corr. v. Gibson, 308 N.C. 131, 136, 301 S.E.2d 78, 82 (1983));

see also Donovan v. Bragg Mut. Fed. Credit Union, No. 5:18-CV-

148-FL, 2019 WL 189000, at *5 (E.D.N.C. Jan. 14, 2019) (applying

Title VII doctrine to a claim brought under NCEEPA). NCEEPA thus

creates a private state law cause of action for “wrongful

discharge.” Smith v. First Union Nat’l Bank, 202 F.3d 234, 247

(4th Cir. 2000).

This court, in discussing Plaintiff’s claim of national

origin discrimination under Title VII above, has addressed

Plaintiff’s NCEEPA wrongful discharge claim. Because the court

must apply the same facts and legal standard to Plaintiff’s

NCEEPA claim as were applied to her Title VII claim, see Abels,

335 N.C. at 218, 436 S.E.2d at 827, Defendants’ motion for

summary judgment as to Plaintiff’s North Carolina claims must be

granted.

IV. CONCLUSION

Because Plaintiff fails to raise a genuine dispute as to

any material fact for any of her four claims, summary judgment

is therefore appropriate.

For the foregoing reasons, this court finds that

Defendants’ motion for summary judgment should be granted.

IT IS THEREFORE ORDERED that Defendants’ Motion for Summary

Judgment, (Doc. 20), is GRANTED.

IT IS FURTHER ORDERED that this case is DISMISSED WITH

PREJUDICE.

A judgment in accordance with this Memorandum Opinion and

Order will be entered contemporaneously herewith.

This the 21st day of January, 2020.

Yo.

Ahi un _L. Shun ~

United States District Jud

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