POUNCEY v. GUILFORD COUNTY

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MONICA POUNCEY, )

)

Plaintiff, )

)

v. ) 1:18CV1022

)

GUILFORD COUNTY, )

MARTY LAWING, in his official )

and personal capacities, )

HEMANT DESAI, in his official )

and personal capacities, and )

JEFFREY SOLOMON, in his )

official and personal )

capacities, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Presently before the court is the Motion for Summary

Judgment filed by Defendants Guilford County (“the County”),

Marty Lawing (“Lawing”), Hemant Desai (“Desai”), and Jeffrey

Solomon (“Solomon”) (together “Defendants”). (Doc. 30.)

Plaintiff Monica Pouncey (“Plaintiff” or “Pouncey”) responded in

opposition, (Doc. 32), and Defendants replied, (Doc. 34). This

motion is now ripe for consideration.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

Plaintiff, Monica Pouncey, is an African American woman

formerly employed by Guilford County. ((Pl.’s Resp. in Opp’n to

Defs.’ Mot. for Summ. J. (“Pl.’s Resp.”) (Doc. 32), Affidavit of

Monica Pouncey (“Pouncey Aff.”) (Doc. 32-2) ¶¶ 4-5.)1 Defendants

are Guilford County, as well as individual Defendants Lawing,

County Manager of Guilford County; Desai, Guilford County Chief

Information Officer; and Solomon, the Enterprise Technology Team

Lead for Guilford County. (Complaint (Doc. 1) ¶¶ 4-7.) Pouncey

started working for Guilford County as a software engineer in

2008, (Defs.’ Mot. for Summ. J. (Doc. 30), Deposition of Monica

Lanae Pouncey (“Pouncey Dep.”) (Doc. 30-32) at 5), working as an

email administrator on the Enterprise Technology Team, (id. at

23).

Jeffrey Solomon became Pouncey’s supervisor in 2014. (Id.

at 6.) Pouncey attests that “the atmosphere that surrounded

[Solomon] was not positive,” as he “looked at his watch” when

employees came in late and “did not greet you any time of the

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.

day unless he had something to ask of you.” (Id. at 19.)

Plaintiff claims that Defendant Solomon had this attitude toward

her and “[o]ther African American people” but, when asked if he

did the same thing to white employees, Pouncey said, “not that

[she] saw.” (Id. at 20.) Pouncey also got “half communication or

no communication” and “drastically low” performance reviews with

Solomon as her supervisor. (Id. at 19.) Moreover, Solomon did

not bring up problems with Pouncey’s work until it was time for

her performance reviews, so she lacked “an opportunity to

address those issues.” (Id.) When Solomon presented her with

performance reviews, he failed to provide evidence for why she

was scored so poorly. (Id. at 24.)

Plaintiff alleges that two white employees, Teresa Wilson

and Brett Pennington, “always were favorite in everything that

[Solomon] wanted done.” (Id. at 21.) Plaintiff claims that

training requests by white employees were granted, while

requests by African American employees were denied. (Id.) She

argues, in a conclusory fashion, that she received fewer

opportunities and training than other employees. However, the

training log provided by Defendants shows Pouncey received more

training than anyone else on the Enterprise Technology Team,

having attended seven training sessions. (IS Department Training

Log (“Training Log”) (Doc. 30-23).) Three of the trainings on

the log occurred “prior to Solomon becoming [Pouncey’s]

supervisor.” (Pouncey Aff. (Doc. 32-2) ¶ 27.) Taking this into

account, Plaintiff received four trainings under Solomon – more

than almost all of Solomon’s direct reports, including Jeffrey

Dietz (white), Brett Pennington (white), Jessica Starke (black),

Wayne Streeter (black), and others not mentioned in Pouncey’s

affidavit. (Training Log (Doc. 30-23); see also Pouncey Aff.

(Doc. 32-2) ¶¶ 8, 13.) Teresa Wilson was Solomon’s only direct

report – out of seven – who received more training under his

supervision than Pouncey. (Training Log (Doc. 30-23).) Plaintiff

does not offer any evidence to dispute these training logs, and

this court therefore finds that Wilson and Plaintiff received

more training than anyone else. Solomon never made any racial

comments directed at Plaintiff, nor has he made any racial

comments in her presence. (Pouncey Dep. (Doc. 30-32) at 23.)

Pouncey concluded that Solomon “has a personal vendetta” against

her. (Id. at 24.)

Pouncey also claims Hemant Desai treated her differently

because of her race. She cited “previous issues that he has

questioned or belittled” her. (Id. at 18.) Desai “berated” her

on a conference call in either 2015 or 2016 about a project when

Pouncey “was asked a question that [she] didn’t have the answer

to at that moment” – Desai told her that she “wasn’t prepared.”

(Id. at 17-18.) This did not occur on any other conference

calls. (Id. at 18.) However, Pouncey claims Desai “questioned

[her] more so than any other employee” and “constantly told [her

she] wasn’t knowledgeable.” (Id. at 18-19.) Pouncey claims that

Desai had “something personal” against her and he was “very

sarcastic” and “condescending” towards her. (Id. at 19.)

Plaintiff states that Desai has never made any racially

derogatory statements or comments to her. (Id. at 18.)

In 2016, Pouncey applied to a senior software engineer

position in her department. (Id. at 21.) The opening was

initially removed before the application deadline and before

Pouncey had applied. (Id.) Soon after the opening was removed,

the interview panel – which included Desai, Solomon, and

Bridgett Lindsey (“Lindsey”), announced they had given the job

to one of Pouncey’s white teammates. (Id.)

On June 29, 2017, another senior software engineer position

opened. (Id. at 16.) Pouncey applied the day the posting was

sent out. (Id.) The only two applicants were Pouncey and Brett

Pennington (“Pennington”), who is white. (Id.) Pouncey was

terminated two months before the position was filled. (Affidavit

of Graham Rothrock (“Rothrock Aff.”) (Doc. 30-29) ¶ 13.)

One of the central issues in this case is Plaintiff’s

alleged unauthorized access to certain email accounts. The facts

are relatively undisputed. On September 21, 2017, Solomon and

another employee were investigating an instance of a different

employee’s unauthorized access to an email account. Upon

investigation, they discovered Plaintiff had unauthorized access

to the accounts of two of her co-workers. (Defs.’ Mem. of Law in

Supp. of Mot. for Summ. J. (“Defs.’ Br.”) (Doc. 31) at 5.) After

Plaintiff mistakenly accused a co-worker of having access to her

account, (id. at 6), Solomon conducted “an audit of Plaintiff’s

access permissions.” (Id. at 7.) At this point, Solomon

discovered that Plaintiff also had unauthorized access to the

accounts of Desai and Graham Rothrock, “among others.” (Id.)

Pouncey acknowledges granting herself permissions to access

Desai’s email account the afternoon of June 29 – the day the

senior software engineer position was posted - and then removing

that access an hour later. (Pouncey Dep. (Doc. 30-32) at 16.)

Pouncey also acknowledges that she gave herself permissions to

access the email inbox of Rothrock, who works in recruitment

within the department, at 9:53 p.m. on July 3 – outside of work

hours. (Id.) Pouncey claims this access was for the Barracuda

project, though she used her personal ID, rather than her email

testing ID, to access the emails. (Id.)

On September 28, 2017, Pouncey was brought into a meeting

with June Harley, Ray Willis, and Desai to discuss her suspected

violation of county email policies. (Id. at 13, 17.) She was

asked about her access to Rothrock’s account after applying for

the senior position. (Id. at 13.) Pouncey was also asked about

access at various times to the inboxes of Lisa Canter, Teresa

Wilson, and Desai himself. (Id. at 13-14.) Plaintiff claimed she

accessed the accounts as part of her work on the MDM and

Barracuda projects. (Id. at 13.) Desai told Pouncey that the IT

department may only access mailboxes upon formal requests when

appropriate. (Id. at 14.) Plaintiff claimed to have permission

from Lisa Canter and Teresa Wilson but agrees she did not have

permission to access the mailboxes of Rothrock or Desai. (Id.)

At the meeting, Pouncey was told that “gaining access to

employee email accounts without the proper authorization” and

“for personal gain” was “unacceptable personal conduct.” (Id. at

17.) Plaintiff was placed on administrative leave without pay,

“pending a review/investigation into recent events.” (Id. at

30.) Plaintiff claims she had no reason to believe June Harley

treated her differently because of her race and is unsure

whether Willis treated her differently because of race. (Id. at

17.)

Plaintiff was terminated effective October 18, 2017. (Id.

at 31.) On October 26, 2017, Pouncey appealed her termination.

(See Doc. 30-12.) The termination and underlying allegations

were investigated by Human Resources employees including

Clarence Grier and Marty Lawing, who upheld the termination on

multiple grounds. (Doc. 30-13.) Pouncey and Lawing have never

met, (Pouncey Dep. (Doc. 30-32) at 8), and Grier is himself

African American. (Affidavit of Clarence Grier (“Grier Aff.”)

Doc. 30-27 ¶ 2.)

After she was terminated, Defendants discovered Pouncey had

“unrestricted and full access” to the email accounts of

individuals in “high level positions,” including members of the

Guilford County Board of Commissioners, the Guilford County

Sheriff, the County Manager, the Guilford County Attorney, and

the Director of Social Services. (Affidavit of Jeffrey Solomon

(“Solomon Aff.”) (Doc. 30-26) ¶ 38.) Contrary to what Plaintiff

had previously claimed, (Doc. 30-2), she accessed these accounts

via her personal username as well as her typical email test

username. (Solomon Aff. (Doc. 30-26) ¶ 38.) Pouncey was

contacted by co-workers who overheard Solomon claiming he was

going to have Pouncey arrested. (Pouncey Dep. (Doc. 30-32) at

22.) Solomon had allegedly been gloating about Pouncey’s

termination. (Id.) A police investigation was conducted into

Pouncey’s email access, but no criminal charges were brought.

(Doc. 30-15.)

B. Procedural Background

Pouncey filed this action on December 17, 2018. (Doc. 1.)

Pouncey originally brought eight claims: Race Discrimination

(Failure to Promote/Hire) under Title VII (Claim One); Race

Discrimination (Failure to Promote/Hire) under 42 U.S.C. § 1981

(Claim Two); Retaliation (Failure to Promote/Hire) under Title

VII (Claim Three); Retaliation (Failure to Promote/Hire) under

42 U.S.C. § 1981 (Claim Four); Race Discrimination (Termination)

under Title VII (Claim Five); Race Discrimination (Termination)

under 42 U.S.C. § 1981 (Claim Six); Retaliation (Termination)

under Title VII (Claim Seven); and Retaliation (Termination)

under 42 U.S.C. § 1981 (Claim Eight). (Id.)

Defendants filed a motion to dismiss pursuant to Fed. R.

Civ. P. 12(b)(6), (Doc. 7). On March 17, 2020, this court

entered a Memorandum Opinion and Order, (Doc. 17), and granted

in part and denied in part Defendants’ motion to dismiss. Claims

Three, Four, Seven, and Eight – all retaliation claims - were

dismissed in their entirety. (Id. at 43.) Claims One and Five

under Title VII were dismissed with regard to the individual

Defendants Lawing, Desai, and Solomon. (Id.) Remaining are

Claims One, Two, Five, and Six – all of which are brought

against Defendant Guilford County. Also remaining are Claims Two

and Six which are brought against the individual Defendants

Lawing, Desai, and Solomon.

Defendants filed a Motion for Summary Judgment on

December 23, 2020, (Defs.’ Mot. for Summ. J. (Doc. 30)), along

with a supporting brief (Defs.’ Br. (Doc. 31).) Defendants

included a variety of exhibits, including Plaintiff’s

deposition, and affidavits from other County employees and all

individual Defendants. (See Defs.’ Mot. for Summ. J. (Doc. 30).)

Defendants seek Summary Judgment “with regard to Plaintiff’s

claims for race discrimination based on termination and failure

to promote under Title VII of the Civil Rights Act of 1964 and

42 U.S.C. § 1981.” (Id. at 1.) This extends to all claims

pending for the court’s resolution: Claim One (Title VII

Failure-to-Promote) against the County, Claim Two (Section 1981

Failure-to-Promote) against all Defendants, Claim Five (Title

VII Wrongful Termination) against the County, and Claim Six

(Section 1981 Wrongful Termination) against all Defendants.2

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

2 Defendants also make a persuasive case for Plaintiff to be

barred from reinstatement or front pay. (Doc. 31 at 24-25.)

Since this court is granting summary judgment on all counts, it

need not address the question of equitable relief.

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’s

summary judgment inquiry is whether the evidence “is so one-

sided that one party must prevail as a matter of law.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). 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) (citing Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586-87 (1986)). Summary judgment should be

granted “unless a reasonable jury could return a verdict for the

nonmoving party on the evidence presented.” McLean, 332 F.3d at

719 (citing Liberty Lobby, 477 U.S. at 247–48). “Mere

allegations” in support of a party’s pleadings without “any

significant probative evidence” to support those allegations do

not provide sufficient evidence to allow a reasonable jury to

resolve a dispute in favor of that party. Liberty Lobby, 477

U.S. at 249; see also Brown v. Sears Auto. Ctr., 222 F. Supp. 2d

757, 761 (M.D.N.C. 2002) (“[T]he non-moving party cannot rely

solely on unsupported assertions to demonstrate that a genuine

issue of material fact exists.”).

Put another way, simply showing some “metaphysical doubt as

to the material facts” is not sufficient to establish a genuine

dispute. Matsushita, 475 U.S. at 586–87. In considering whether

a genuine issue of material fact exists, the court must be

careful not to weigh the evidence or make credibility

determinations. Liberty Lobby, 477 U.S. at 250. Instead, the

court must view the facts in the light most favorable to the

nonmoving party, drawing all reasonable inferences in favor of

that party. Id. at 255.

III. ANALYSIS

A. Claims One and Two: Failure to Promote

This court will begin by assessing Plaintiff’s first two

claims, which allege discriminatory failure to promote under

Title VII and 42 U.S.C. § 1981. As these claims have the same

elements, the court will assess them together. See Williams v.

Giant Food Inc., 370 F.3d 423, 430 n.5 (4th Cir. 2004) (“The

same elements are required for failure-to-promote claims alleged

under Title VII and § 1981, and the district court properly

considered these claims together.”). Plaintiff brings both

claims against the County and a claim under § 1981 against the

individual Defendants.

A prima facie failure to promote claim requires a plaintiff

to demonstrate “that (1) she is a member of a protected group,

(2) she applied for the position in question, (3) she was

qualified for that position, and (4) the defendants rejected her

application under circumstances that give rise to an inference

of unlawful discrimination.” Anderson v. Westinghouse Savannah

River Co., 406 F.3d 248, 268 (4th Cir. 2005); see also Bryant v.

Aiken Reg’l Med. Ctrs. Inc., 333 F.3d 536, 544–45 (4th Cir.

2003); Carter v. Ball, 33 F.3d 450, 458 (4th Cir. 1994). It is

undisputed that Plaintiff is a member of a protected group. The

parties also agree that Plaintiff applied for the position

before her termination, though it was not filled until after she

was fired. The parties dispute whether Plaintiff is qualified

for the position, given she was terminated prior to the internal

position being filled.

Plaintiff “worked for Guilford County as a Software

Engineer for almost a decade at the time of her application” and

“was the second-most tenured member of the Enterprise team by

four years, and the longest tenured non-Senior Software Engineer

by six years.” (Pl.’s Resp. (Doc. 32) at 10.) Taking the facts

in the light most favorable to the nonmoving party, absent her

termination, Plaintiff would have been objectively qualified for

the promotion. However, Plaintiff was no longer an employee when

the internal position was filled, as she “had already been

terminated for misconduct.” (Defs.’ Br. (Doc. 31) at 20.) In

fact, “Plaintiff was discharged two months before the position

. . . was filled.” (Id.) This, Defendants argue, means Plaintiff

was inherently not qualified for the position at the time it was

filled, and disqualifies her failure to promote claim. (See id.)

As this court noted in its Memorandum Opinion and Order,

(Doc. 17 at 28 n.10), other courts have dismissed failure to

promote claims at summary judgment when the plaintiff was

terminated prior to the promotion decision. See Oliver v. Nat’l

Beef Packing Co., LLC, 294 F. App’x 455, 458 (11th Cir. 2008)

(“[The plaintiff] failed to present[] a prima facie case of

discrimination regarding his failure to promote claim because

[the defendant] had terminated his employment prior to making

the decision and filling the . . . position at issue.”). Here,

before ruling Plaintiff was not qualified for the promotion due

to her termination, this court provided leeway for Plaintiff to

conduct discovery and uncover whether the termination was merely

a pretextual excuse to avoid promoting her. However, Plaintiff

has failed to create a genuine dispute of material fact as to

whether her termination was pretextual. See discussion infra

Section III.C.2. Thus, at this stage, Plaintiff has failed to

demonstrate she was qualified for the promotion, given her

termination two months prior to the position being filled.3

B. Claim Five: Title VII Wrongful Termination

Plaintiff brings wrongful termination claims under both

Title VII and 42 U.S.C. § 1981. This court will first analyze

Plaintiff’s Title VII wrongful termination claim against the

County.

3 Even if this court were to accept Plaintiff’s prima facie

case and move on to the McDonnell Douglas analysis on the

failure-to-promote claims, Plaintiff would ultimately be unable

to demonstrate that her employer’s failure to promote her was

discriminatory. Plaintiff points to her earlier denied

application for a promotion as evidence of discrimination,

arguing that this time around she was terminated instead.

However, “[A] plaintiff's perception of [her] own experience,

performance, and skills is not relevant. It is the perception of

the decisionmaker that counts.” Benson v. Vaughn Indus. LLC, 450

F. Supp. 3d 655, 666 (E.D.N.C. 2020). While Plaintiff may

believe she was supremely qualified for a promotion, her own

view of her fitness for the job is irrelevant. See Anderson v.

Westinghouse Savannah River Co., 406 F.3d 248, 271 (4th Cir.

2005) (“[The plaintiff] may not choose the criteria on which she

wishes to compete . . . for the promotion. Moreover, she cannot

establish pretext by relying on criteria of her choosing when

the employer based its decision on other grounds.”). Plaintiff

received a lower score on her previous promotion evaluation than

her sole competitor – and one of the panelists evaluating

Plaintiff was herself African American. Anderson, 406 F.3d at

270 (“[T]he deciding factor in the promotion decision was the

rating . . . that each applicant who was interviewed

received. . . . A comparison of the two rating forms, compiled

by the same interview panel, indicates that the panel found [the

plaintiff’s competitor] to be the superior candidate.”).

There are two ways that Plaintiff can defeat a motion for

summary judgment in a Title VII discriminatory termination case.

The first is through direct evidence of discrimination: “[a]

plaintiff can survive a motion for summary judgment by

presenting direct or circumstantial evidence that raises a

genuine issue of material fact as to whether an impermissible

factor such as race motivated the employer’s adverse employment

decision.” Diamond v. Colonial Life & Accident Ins. Co., 416

F.3d 310, 318 (4th Cir. 2005). In the present case, Plaintiff

does not allege any statement indicating that Plaintiff’s race

played a direct role in her termination.

Instead, Plaintiff pursues the second path to defeating a

motion for summary judgment, under the framework from McDonnell

Douglas v. Green, 411 U.S. 792 (1973). The McDonnell Douglas

test requires Plaintiff to demonstrate four elements to prove a

prima facie case of racial discrimination: (1) that she is a

member of a protected class; (2) she suffered an adverse

employment action; (3) that Plaintiff was performing well enough

to meet the legitimate expectations of her employer; and (4) the

adverse employment action gives rise to an inference of unlawful

discrimination. McKiver v. Gen. Elec. Co., 11 F. Supp. 2d 755,

758 (M.D.N.C. 1997). Here, the first element is satisfied: it is

undisputed that Plaintiff is African American and therefore a

member of a protected class. The second element is also

undisputed, as Plaintiff was terminated from her position. At

issue are only the third and fourth elements: Plaintiff’s

performance and her termination giving rise to an inference of

unlawful discrimination. Assuming Plaintiff has stated a prima

facie case for wrongful termination,4 this court will proceed

through the McDonnell Douglas analysis.

1. Legitimate, Nondiscriminatory Reason for

Termination

Once Plaintiff has established a prima facie case, the

burden shifts to Defendants “‘to articulate a legitimate,

nondiscriminatory reason for the adverse employment

action.’” Lettieri v. Equant Inc., 478 F.3d 640, 646 (4th Cir.

2007) (quoting Hill v. Lockheed Martin Logistics Mgmt.,

Inc., 354 F.3d 277, 285 (4th Cir. 2004)). Plaintiff was

allegedly terminated because of her unauthorized access of the

4 Plaintiff has not necessarily met this burden, though this

court ultimately dismisses Plaintiff’s claim under a full

McDonnell Douglas analysis. A prima facie inference of unlawful

discrimination can be drawn when Plaintiff is passed over for,

or replaced by, a similarly qualified white employee. Thompson

v. Potomac Elec. Power Co., 312 F.3d 645, 650 (4th Cir. 2002)

(assessing whether “similarly situated employees were selected

for upgrades on the basis of race”). The employee hired in

Plaintiff’s place was also African American, undermining any

circumstantial presumption that race discrimination was a reason

for her termination. (Solomon Aff. (Doc. 30-26) ¶ 47.)

email inboxes of a variety of individuals. More specifically,

the County upheld her termination on three main bases: (1)

“[i]nsubordination and failure to follow supervisory

directives,” (2) “[d]isplaying poor judgment and lack of

integrity,” and (3) “[c]reating a conflict of interest by using

[her] position to access the mailboxes of individuals involved

in the hiring process for a position that [she] applied for.”

(Appeal Dismissal Notice by M. Lawing November 20, 2017 (“Appeal

Dismissal”) (Doc. 30-14) at 1.) The County Manager provided an

additional basis that Plaintiff “provided false or misleading

statements and information during the investigation.” (Id.)

Solomon’s affidavit indicates the office’s email access

permission policy was a “standard practice that ha[d] been

conveyed to all staff and followed by other staff members,” and

notes that “Plaintiff was fully aware of these practices . . .

as evidenced from her following those exact processes on other

occasions.” (Solomon Aff. (Doc. 30-26) ¶¶ 42-43.) Brett

Pennington corroborates that “management has always required

authorization for full access to the entire content of an end-

user’s email box,” in large part “due to the sensitive nature of

some of the County offices.” (Affidavit of Bretton Pennington

(“Pennington Aff.”) (Doc. 30-30) ¶ 22.) Pennington claims he has

“never accessed another employee’s or co-worker’s email box

without prior consent and authorization” and would not need to

within the job. (Id. ¶ 21.) Employee Teresa Wilson notes that,

although it was not in writing, “this directive [to obtain pre-

approval before searching another employee’s email] has been in

place since I have been employed with GCIS” in order “to

maintain the integrity of GCIS with other County departments and

to prevent the actual or perceived unauthorized invasions of

privacy and unauthorized access to confidential and sensitive

human resource, legal, and law enforcement information.”

(Affidavit of Teresa Wilson (“Wilson Aff.”) (Doc. 30-31) ¶ 27.)

Plaintiff disputes that this policy existed, claiming it was

merely an excuse for her termination.

Though Defendants have put forth ample testimonial evidence

indicating such an informal policy did exist, it is not this

court’s role to weigh Plaintiff’s credibility against the

credibility of Defendants’ witnesses. However, Plaintiff’s

disagreement with her employer about the existence of an email

access policy is not dispositive. This dispute alone is not

enough to sustain a wrongful termination claim through the

summary judgment stage. See JKC Holding Co. v. Washington Sports

Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001) (“The

existence of an alleged factual dispute . . . will not defeat a

properly supported motion for summary judgment, unless the

disputed fact is one that might affect the outcome of the

litigation.”). There is evidence that Plaintiff violated what

was, at minimum, an informal company policy, and that even upon

supervisory review, this was one of several legitimate,

nondiscriminatory reasons for terminating Plaintiff. The Fourth

Circuit addressed a similar set of facts in a wrongful

termination case from 2013:

There is considerable evidence that [the plaintiff]

violated a clearly communicated company policy

forbidding delivery records falsification — a policy

upon which FedEx’s commercial viability depends. There

is also considerable evidence that the company

genuinely believed in this reason for terminating [the

plaintiff]. And perhaps most importantly, not only

did [the plaintiff] fail to adduce any comparator

evidence in her favor, but the only comparator

identified in the summary judgment record . . . was

treated in the exact same manner as [the plaintiff]

after violating the exact same company policy in the

exact same way.

Laing v. Fed. Exp. Corp., 703 F.3d 713, 722–23 (4th Cir. 2013).

The initial reason for Pouncey’s termination, prior to the

County’s investigation, was legitimate and nondiscriminatory.

She was terminated “for unacceptable personal conduct related to

her unauthorized access to Guilford County employee email

accounts, but particularly for her access to Graham Rothrock’s

email account . . . close in time to her applying for the Senior

Software Engineer” position. (Aff. of Hemant Desai (As Chief

Information Officer and Director of Guilford County Information

Services) (Doc. 30-25) ¶ 29.) Plaintiff then disputed and

appealed her termination; however, it was upheld based on

“[i]nsubordination and failure to follow supervisory

directives,” “creating a conflict of interest,” and displaying

“poor judgment and lack of integrity.” (Appeal Dismissal (Doc.

30-14) at 2.) Whether the County was wise in its decision to

terminate Plaintiff, or whether the email policy was a formal or

informal one, is immaterial.

Moreover, the termination was approved by individuals

against whom Pouncey alleges no racial bias. The County Human

Resources Manager, Ray Willis, and the Deputy County Manager,

Clarence Grier, both of whom represented the County in the

decision to terminate Plaintiff, are themselves African

American. (See Affidavit of Ernest Ray Willis (“Willis Aff.”)

(Doc. 30-28) ¶¶ 2-3; (Grier Aff. (Doc. 30-27) ¶¶ 2-3.) Willis

recounts his decision process as follows:

I reviewed the results and compared them against the

County’s disciplinary processes under the relevant

Personnel Regulations. I participated in the

discussions to determine whether any disciplinary

action was appropriate. I also attended both meetings

between Plaintiff, Hemant Desai, and Jeffrey Solomon

on September 28, 2017 regarding her suspension and on

October 18, 2017 regarding her termination from

employment.

(Willis Aff. (Doc. 30-28) ¶ 18.) Willis echoed the same concerns

as those expressed by Desai. He found that Plaintiff was

“subject to termination” due to “her additional access to Graham

Rothrock’s email account from July 3, 2017 through July 17,

2017.” (Id. ¶ 24.) “The timing of her access was determined not

to be coincidental to her application for the Senior Software

Engineer position for which she applied on June 29, 2017.” (Id.)

Further, Plaintiff’s access to the email accounts “constitute[d]

a major breach of confidential information in the possession of

HR – some of which is subject to HIPAA privacy laws.” (Id.

¶ 26.) This confidential data included “social security numbers,

medical data, bank account data, salary information, benefits

data, employee job searches, and performance evaluations.” (Id.

¶ 27.) According to Willis, this risked putting the County in

legal trouble. (Id. ¶ 28.)

It is a matter of material dispute, at this stage, whether

an established office policy required Plaintiff to obtain

explicit permission before accessing these inboxes. However, the

County’s conclusion that Plaintiff accessed the HR email account

in order to gain an advantage in the promotion process is not an

issue of material fact. Whether it is a true conclusion or a

false one is not for this court to determine. Plaintiff has

provided no evidence to contradict the substantial evidence that

this was the County’s genuine conclusion and basis for action.5

The conclusions drawn by County representatives constitute

legitimate and nondiscriminatory reasons for terminating

Plaintiff, regardless of the disputed email policy.

2. Stated Reason for Termination is Not Pretextual

Since the County has provided a legitimate explanation for

Plaintiff’s termination, the burden shifts back to Plaintiff to

prove by a preponderance of the evidence that this articulated

reason is mere pretext. McKiver, 11 F. Supp. 2d at 758. “The

final pretext inquiry ‘merges with the ultimate burden of

persuading the court that [the plaintiff] has been the victim of

intentional discrimination,’ which at all times remains with the

plaintiff.” Merritt v. Old Dominion Freight Line, Inc., 601 F.3d

289, 294 (4th Cir. 2010) (quoting Tex. Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 256 (1981)).

Plaintiff offers no evidence to indicate the County’s

reasoning was anything but genuine. She makes no allegations of

racial bias against Clarence Grier, who handled her appeal.

5 Although not necessary to the result reached here,

Plaintiff is a software engineer and email administrator. Her

failure to recognize the purpose of proper authorizations to

access email accounts, and the purpose those authorizations

serve, is striking. Those authorizations clearly exist to

protect the integrity of employees’ email accounts and the

authority of those who use those accounts.

(Pouncey Dep. (Doc. 30-32) at 8.) Plaintiff concedes that she

did not know Grier prior to her termination. (Id.) Grier’s

investigation concluded that “Plaintiff accessed Graham

Rothrock’s email box . . . for the purpose of gaining an

advantage over other applicants for the Senior Software Engineer

position.” (Grier Aff. (Doc. 30-27) ¶ 12.) According to his

report, “Plaintiff accessed . . . email boxes . . . without

permission and without a valid business reason,” (id. ¶ 13), and

then “falsely accused her supervisor . . . and co-worker . . .

of accessing her emails without permission,” (id. ¶ 14). Grier

further concluded that “Plaintiff provided several statements

and explanations that were not credible and were misleading,”

(id. ¶ 15), in addition to “display[in] a lack of integrity” and

“engag[ing] in unethical practices,” (id. ¶ 16). He therefore

recommended her termination be upheld on appeal. (Id.)

Moreover, Plaintiff was replaced by another member of the

same protected class. (Solomon Aff. (Doc. 30-26) ¶ 47); see

McCaskey v. Henry, 461 F. App’x 268, 270 (4th Cir. 2012) (“[H]er

claim of discriminatory termination fails because a member of

her protected class was promoted into her position after her

termination.”). “[F]ederal courts now routinely rely on

comparator evidence when deciding whether an adverse employment

action was driven by a discriminatory motive.” Laing, 703 F.3d

at 719. Here, the only comparator is the individual hired to

replace Plaintiff after her termination – an individual who is

part of the same protected class as Plaintiff. (Solomon Aff.

(Doc. 30-26) ¶ 47.) This undermines Plaintiff’s argument that

she was terminated because of her race, rather than because of

her violations of informal company policy. Plaintiff does not

meet her burden of providing evidence, beyond conclusory

statements, that the County’s reasoning was pretextual. Claim

Five will therefore be dismissed.

C. Claim Six: 1981 Wrongful Termination

Plaintiff brings a 42 U.S.C. § 1981 wrongful termination

claim against all Defendants. Under § 1981, “a plaintiff bears

the burden of showing that race was a but-for cause of its

injury.” Comcast Corp. v. Nat’l Ass’n of African Am.-Owned

Media, ____ U.S. ____, ____, 140 S. Ct. 1009, 1014 (2020).

Defendants seek summary judgment with regard to the sixth claim

and their related tenth affirmative defense, qualified immunity.

1. Section 1981 Claim Against County

Under § 1981, when a plaintiff brings an action against a

county, the high bar for § 1983 municipal liability applies.

“[W]here a plaintiff seeks to state a claim for violation of

rights under § 1981 against a municipality, the same rules with

respect to municipal liability apply as are applied under a

claim for violation of § 1983.” Beck v. City of Durham, 129

F. Supp. 2d 844, 853 (M.D.N.C. 2000); see also Jett v. Dallas

Indep. Sch. Dist., 491 U.S. 701, 733 (1989) (“[T]he express

cause of action for damages created by § 1983 constitutes the

exclusive federal remedy for violation of the rights guaranteed

in § 1981 by state governmental units.”); Greensboro Pro. Fire

Fighters Ass’n, Local 3157 v. City of Greensboro, 64 F.3d 962,

965 n.3 (4th Cir. 1995) (“[T]he same principles of municipal

liability apply to § 1981 and § 1983 actions.”).

Local governing bodies, therefore, can be sued

directly under § 1983 for monetary, declaratory, or

injunctive relief where, as here, the action that is

alleged to be unconstitutional implements or executes

a policy statement, ordinance, regulation, or

decision officially adopted and promulgated by that

body’s officers. Moreover, . . . local governments,

like every other § 1983 “person,” by the very terms of

the statute, may be sued for constitutional

deprivations visited pursuant to governmental “custom”

even though such a custom has not received formal

approval through the body’s official decisionmaking

channels.

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91 (1978). In

other words, Plaintiff “must allege that [s]he suffered

discrimination . . . caused by an official policy or custom of

the municipality, or that the alleged discrimination resulted

from the actions of an official having express or implied

authority from the [County], as its ‘policymaker’ in matters of

personnel management.” Beck, 129 F. Supp. 2d at 853.

Plaintiff has failed to adequately create a dispute of

material fact over whether Guilford County had an “official

policy or custom” of discrimination. She has not alleged the

County has any particular custom of discrimination. She has not

presented any facts to indicate that the County’s

decisionmakers, specifically Willis and Grier, possess any

racial animus against her. See Greensboro Pro. Fire Fighters

Ass’n, 64 F.3d at 965 (“When a final decision by an employee

implements municipal policy, then municipal liability may

follow.”).

Nor has she created a genuine dispute of material fact as

to whether Desai, Lawing, or Solomon terminated her due to her

race. See discussion infra Section III.C.2. Even the Huntley

affidavit provided by Plaintiff, (Affidavit of Corey Huntley

(“Huntley Aff.”) (Doc. 32-6)), makes only a conclusory statement

about Solomon, with no accompanying details or facts. Shepherd

v. Coastal Cmty. Action, Inc., 602 F. Supp. 2d 686, 694

(E.D.N.C. 2009) (“[The plaintiff’s colleague’s] vague opinion of

racial favoritism by [the defendants] are not sufficient to

create a genuine issue of material fact.”) Moreover, even if

Plaintiff had demonstrated that Desai or Solomon were

discriminatory in firing her, she has not shown they were

policymakers with final say over County employment. In fact,

Plaintiff herself appealed the decision to County Human

Resources, where the termination was upheld.

With regard to Lawing, Plaintiff cites to N.C. Gen. Stat.

§ 153A-82 and Guilford County Personnel Regulation 28, claiming

“the county manager [has] final authority over non-elected

county officials and employees.” (Pl.’s Resp. (Doc. 32) at 21.)

Yet, Plaintiff has not provided a single fact to indicate Lawing

terminated her on the basis of race – Plaintiff has never met,

seen, or spoken to Marty Lawing. (Pouncey Dep. (Doc. 30-32) at

8.) Plaintiff has simply not provided enough facts to create a

reasonable material dispute over whether the County has an

official custom of racial discrimination. Therefore, this court

will grant summary judgment to the County on this § 1981 claim.

2. Section 1981 Claim Against Individual Defendants

In addition to a § 1981 claim against the County for

wrongful termination, Plaintiff pursues a § 1981 claim against

Defendants Solomon, Lawing, and Desai. The individual Defendants

argue that qualified immunity prohibits Plaintiff from pursuing

§ 1981 wrongful termination claims against them in their

individual capacities. “[G]overnment officials performing

discretionary functions generally are shielded from liability

for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which

a reasonable person would have known.” Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). “[A] constitutional right is clearly

established when its contours [are] sufficiently clear that a

reasonable official would understand that what he is doing

violates that right.” Ridpath v. Bd. of Governors Marshall

Univ., 447 F.3d 292, 313 (4th Cir. 2006) (internal quotation

marks and citation omitted).

The question of qualified immunity in discriminatory

termination cases has already been squarely addressed by a court

in this district. It “would not be objectively reasonable for

Defendants to believe they could lawfully terminate Plaintiff

based, even in part, on her race,” for purposes of qualified

immunity. Disher v. Weaver, 308 F. Supp. 2d 614, 628 (M.D.N.C.

2004). Assuming “questions of fact remain as to both the

proffered reason for Plaintiff’s firing . . . and whether race

was a motivating factor,” this court would not be able to

determine at the summary judgment phase that qualified immunity

protects the individual Defendants from liability. Id.

However, no genuine “questions of fact remain” as to the

proffered reason for Plaintiff’s firing. Plaintiff accuses

Defendants Solomon and Desai of holding negative attitudes about

black employees but does not provide examples or evidence that

demonstrate more than the suggestion of personal animus.

a. Defendant Desai

The first individual Defendant is Defendant Desai.

Plaintiff alleges race motivated Desai to terminate her, citing

a single instance when Desai referred to Plaintiff as

“unprepared” – at a time Plaintiff admits she did not have the

answer to a question. (Pouncey Dep. (Doc. 30-32) at 18.)

Plaintiff’s deposition testimony concedes that while Defendant

Desai “questioned [her] more so than any other employee,” he

never made a racially derogatory comment or used any kind of

racial epithet towards Plaintiff. (Id.) Plaintiff also alleges

Desai had “something personal” against her and generally behaved

“in very sarcastic manner” towards her. (Id. at 19.)

“[W]orkplace disagreements and incidents of occasional

mistreatment are ordinary occurrences in a workplace,” and a

single example of such an incident – one lacking any overt

references to race - is not sufficient to create a genuine

dispute of material fact. Julsaint v. Corning, Inc., 178 F.

Supp. 2d 610, 620 (M.D.N.C. 2001). Nor are general allegations

of personal animus sufficient. Moreover, Plaintiff has not

connected this incident to her firing over a year later. Even if

the facts are taken in the light most favorable to Plaintiff,

the most that can be inferred from the evidence presented is

that Desai possessed some personal grudge against Plaintiff,

with no further evidence to indicate that bias was race-based.

b. Defendant Lawing

The second individual Defendant is Marty Lawing. Plaintiff

admits she has never so much as seen or spoken to Lawing.

(Pouncey Dep. (Doc. 30-32) at 8.) There is no genuine dispute of

material fact as to whether Lawing held a racial animus against

Plaintiff that influenced her termination.

c. Defendant Solomon

The third and final individual Defendant is Jeffrey

Solomon. Plaintiff provides marginally more evidence of

potential racial bias on the part of Solomon. For example, the

affidavit of former employee Corey Huntley corroborates that

“Solomon treated employees of color differently” and was

“confrontational with black employees.” (Huntley Aff. (Doc.

32-6) ¶¶ 7-8.) Huntley, like Plaintiff, does not provide any

specific examples, stating only that while “[w]hite employees

under Solomon had more freedom to accomplish tasks their own

way, . . . black employees had to carefully adhere to Solomon’s

preferences.” (Id. ¶ 9.) Though more explicit than the evidence

presented regarding Desai or Lawing, this conclusory narrative

is inadequate. A “plaintiff’s subjective belief that [a

defendant] treated her differently due to her race and that [a

defendant] ultimately terminated her employment due to her race

is not sufficient to create a genuine issue of material fact.”

Shepherd, 602 F. Supp. 2d at 694. Moreover, none of the

allegations relayed tie back to Plaintiff’s termination: she

does not bring a hostile work environment claim, but rather a

wrongful termination claim.

Iv. CONCLUSION

For the reasons set forth above,

IT IS HEREBY ORDERED that Defendants’ Motion for Summary

Judgment, (Doc. 30), is GRANTED and as to all claims.

IT IS FURTHER ORDERED that this case is DISMISSED WITH

PREJUDICE.

A judgment reflecting this Memorandum Opinion and Order

will be entered contemporaneously herewith.

This the 28th day of June, 2021.

*

Wy Uirm L. Blur.

Bo Ai san Osha Mt

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