NEW V. THERMO FISHER SCIENTIFIC, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

REBECCA HOLLAND NEW, )

)

Plaintiff, )

)

v. ) 1:19cv807

)

THERMO FISHER SCIENTIFIC, )

INC., a corporation, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, Chief District Judge.

Plaintiff Rebecca Holland New brings this action against

Defendant Thermo Fisher Scientific, Inc. (“Thermo”) alleging

breach of contract, sex discrimination, and other claims arising

from her employment and resignation. Before the court is Thermo’s

motion for summary judgment. (Doc. 73.) The motion is fully

briefed (Docs. 86, 87, 90) and the court heard argument on it on

February 3, 2022. For the reasons set forth below, the motion

will be granted and the action will be dismissed.

I. BACKGROUND

A. Facts

The facts, either not in dispute or viewed in the light most

favorable to New as the non-moving party, establish the following:

1. Employment Agreement with Thermo

On August 15, 2011, New was employed by Patheon

Pharmaceuticals Services, Inc. (“Patheon”) as a Senior Vice

President, Human Resources. (Doc. 1-1 at 2.)1 Over time, she

transitioned to the head of Patheon’s newly-established Global

Business Management function, “designed to deliver a better

customer experience and improve coordination across our business

units,” as Executive Vice President, Enterprise-Wide Operations.

(Docs. 86-5 at 2-3; 86-6 at 3.) In this role, New ceased reporting

directly to Chief Executive Officer (“CEO”) Jim Mullen and reported

to an intermediary, Michel Lagarde, President and Chief Operating

Officer. (Docs. 86-5 at 3; 86-7 at 2.) Lagarde selected New to

oversee business management because she was “significantly

talented” and “an excellent candidate” to become an

“effective . . . business leader.” (Doc. 87-63 at 14:9-15:6.)

On August 29, 2017, Defendant Thermo acquired Patheon N.V.,

Patheon’s parent company, and New became employed by Thermo. (Doc.

87-3 ¶ 2.) Rather than exercise her options under a change-in-

control provision in her employment contract, which would have

entitled her to depart with substantial severance, bonuses, and

other benefits, New accepted Thermo’s offer to stay on as a Group

Vice President, Enterprise-Wide Operations for Thermo’s Pharma

Services Group (“PSG”).2 (Id.; Doc. 1-1 at 23.) According to New,

1 All citations to the record are to the paragraph number or ECF docket

page except for testimony, which is cited to the deposition transcript

page and line number.

2 PSG is a division of, or affiliate operation owned and operated by,

Thermo. New claims she accepted employment with Thermo, at least in

Martin Van Walsum, Thermo’s Vice President of Executive

Compensation, told her that she would be “banded” at a compensation

level of 13 under Thermo’s structure.3 (Docs. 87-59 at 23:23-24:7;

87-66 at 172:21-173:10.) New’s offer letter from Thermo provided

for an annual base salary of $405,000 and noted she would continue

to report to Lagarde, who would be Thermo’s Senior Vice President

and President, Contract Development and Manufacturing. (Doc. 1-1

at 23.)

Upon starting with Thermo, New continued to oversee Global

Business Management (described as managing contracts, client

relations, demand planning, and expansion of business/upsell for

over 850 company clients), which took up at least 80% of her

responsibilities.4 (Docs. 86-6 at 3; 86-16; 87-3 ¶ 6; 87-14 at

10; 87-66 at 60:22-61:2.) New coordinated the business management

function across PSG’s five business units. (Docs. 86-46 at 32:16-

part, based on Lagarde’s representations that her “position would not

be eliminated,” “would not change,” and she “was very much needed in the

new organization.” (Doc. 87-3 ¶ 2.) She also says that Lagarde stated

that, although Thermo had a team for carve-outs and mergers and

acquisitions, he still needed his “own internal deal team” to “evaluate

some deals” before presenting them to Thermo’s corporate M&A team. (Doc.

87-66 at 61:7-18.) Her only fraud claim, however, was dismissed without

prejudice (Doc. 13) and has not been repleaded.

3 “Band” levels were Thermo’s method of assigning special benefits to

various executive positions and employees – the greater the band, the

greater the benefits. (See Doc. 87-66 at 173:4-16.) In her deposition,

New testified that “there was not clarity in terms of . . . the benefits

[between band] levels.” (Id. at 172:16-20.)

4 According to Lagarde, “98% of [New’s] responsibilities was Global

Business Management.” (Docs. 87-14 at 8; 86-43 at 48:15-49:1.)

20; 87-3 ¶ 6.) She also maintained other responsibilities,

including “Shared Services” (managing the vendor relationship with

Cognizant, a company that provided back office support

operations); the “Project Management Office” (supporting Mergers

& Acquisitions (“M&A”), Carve Outs, Integrations, and Strategic

Projects); “OneSource” (managing integrated business sales and

project management support for small clients); and “Client

Experience Management” (remediation planning and improved training

and communication tools to help improve client relationship

management). (Docs. 87-3 ¶ 6; 86-46 at 33:25-34:9, 34:25-35:6.)

Additionally, Thermo asked her to remain on PSG’s Global Leadership

Team (“GLT”). (Docs. 86-17; 87-62 at 187:8-13.) New was also one

of only four PSG executives selected by Thermo to participate in

the Global Leadership Program, a selective leadership development

program. (Docs. 86-19; 86-20.)

Following the acquisition, New heard rumors of plans to

“layer” her position and add a reporting level between her and

Lagarde, which Lagarde denied. (Doc. 86-46 at 50:12-25.) However,

in December 2017, Lagarde made an organizational change by adding

the position of President of Commercial Operations. (Doc. 86-16.)

As a result, New, as the head of Global Business Management, and

other executives began reporting to Franco Negron, the new

President of Commercial Operations, who then reported to Lagarde

effective January 2018. (Id.; Docs. 86-43 at 28:21-29:4, 31:1-3;

86-46 at 51:3-7.) While there were other reporting changes, New

was the only one of Lagarde’s direct reports whose reporting

relationship was changed. (Doc. 87-63 at 30:3-8.)

2. New’s Employment Agreement

The terms of New’s employment were set out in three different

documents which, taken together, establish the contractual

relationship between her and Thermo. (Doc. 87-3 ¶ 5.) In an

August 17, 2017 letter agreement, signed by New on August 28, 2017

(Doc. 1-1 at 23-25), the parties agreed that New’s initial

employment agreement with Patheon (Doc. 1-1 at 1-22) would “remain

largely in effect.” (Doc. 1-1 at 23.) Any aspects of her

employment that were “inconsistent with specific terms” of her

initial employment agreement with Patheon would be “governed by

the terms of [the signed August 2017 letter agreement.]” (Id.)

Her Employment Agreement was further modified through a memorandum

entitled “Outstanding Patheon Long-Term Incentive Awards for

Rebecca Holland New.” (Id. at 26.) Viewed in the light most

favorable to New, therefore, these documents show that her

contractual relationship with Thermo was defined by (1) her initial

employment agreement with Patheon (Doc. 1-1 at 1-22), (2) the

signed August 2017 letter agreement (Doc. 1-1 at 23-25), and (3)

the long-term incentive awards memorandum (Doc. 1-1 at 26),

(collectively, New’s “Employment Agreement”). (Doc. 13 at 3.)

New’s unvested Patheon stock options and restricted stock

units (“RSUs”) that were to vest upon the change in control

(resulting from Thermo’s purchase of Patheon) were converted to

unvested Thermo stock options and RSUs “subject to substantially

the same terms and conditions (including vesting schedule)” of her

Employment Agreement.5 (Doc. 1-1 at 26.) Additionally, New’s

unvested Thermo stock options and RSUs were to vest immediately if

she were terminated by Thermo “other than for Cause” or if New

resigned her employment for “Good Reason.” (Id. at 102.) If New

was terminated for a reason “other than for Cause,” or if she

terminated her employment for “Good Reason,” Thermo had to pay her

an amount equal to twelve months of base salary and earned stock

options and RSUs. (Id. at 11.) To recover these severance

benefits, New was required to submit a form releasing Thermo from

all current and future claims, both known and unknown. (Id. at

12.) New’s Employment Agreement also provided that she would

“continue to be eligible for severance in accordance with the terms

of [her] Employment Agreement for two years from Closing” and that

her “other current benefit and executive perquisite offerings,

excluding [her] severance benefits, will be unchanged for at least

one year from Closing.” (Id. at 24.)

The terms “Cause” and “Good Reason” are defined in New’s

employment agreement as follows:

5 New also earned a cash payment in exchange for her vested stock options

and RSUs as a result of the acquisition. (Doc. 1-1 at 26.)

“Cause” means the determination, in good faith, by the

Company, after notice to the Executive that one or more

of the following events has occurred: (i) the Executive

has failed to perform her material duties and, if

curable, such failure has not been cured after a period

of thirty (30) days’ notice from the Company; (ii) any

reckless or grossly negligent act by the Executive

having the effect of injuring the interests, business,

or reputation of any member of the Patheon Group in any

material respect; (iii) the Executive’s commission of

any felony (including entry of a nolo contendere plea);

(iv) any misappropriation or embezzlement of the

property of any member of the Patheon Group; or (v) a

breach of any material provision of this agreement by

the Executive, which breach, if curable, remains uncured

for a period of thirty (30) days after receipt by

Executive of notice from the Company of such breach.

* * *

“Good Reason” means the occurrence of any of the

following events without the consent of the Executive:

(i) a material reduction of the Executive's duties or

responsibilities that is inconsistent with the

Executive's position as described in this Agreement

(i.e. that would result in a de facto reduction in rank)

or a change in Executive’s reporting relationship such

that Executive no longer reports directly to the Chief

Executive Officer; (ii) a material breach by the Company

of this Agreement, or (iii) a requirement by the Company

that the Executive work more than fifty (50) miles from

Executive’s principle [sic] office. A termination of the

Executive’s employment by Executive shall not be deemed

to be for Good Reason unless (i) the Executive gives

notice to the Company of the existence of the event or

condition constituting Good Reason within thirty (30)

days after such event or condition initially occurs or

exists, (ii) the Company fails to cure such event or

condition within thirty (30) days after receiving such

notice, and (iii) the Executive’s “separation from

service” within the meaning of Section 409A of the Code

occurs not later than ninety (90) days after such event

or condition initially occurs or exists.

(Id. at 4-5.)6

3. Lukas Utiger

While at Patheon and then Thermo Fisher, New was required to

interact with Lukas Utiger, who was the president of another

business unit of each company.7

From May through December 2017, while Utiger was Patheon’s

President of Europe, he worked with Sylvia Held, who was New’s

direct report. (Docs. 87-69 at 76:1-4; 87-3 at ¶ 10.) During

this time, Utiger complained about Held’s performance and rated

her as “needs improvement” until New and others intervened,

changing Held’s rating to “meets expectations.” (Docs. 87-3 ¶ 10;

87-69 at 76:5-23.) Later, Lagarde directed New to replace Held

based on Utiger’s complaints. (Doc. 87-66 at 164:6-14.) Utiger

6 The Employment Agreement required that notices and other communications

between New and Thermo be in writing and either hand delivered or

delivered by registered or certified mail with postage prepaid and a

return receipt requested. (Doc. 1-1 at 15.) Notice and communications

were effective “when actually received by the addressee.” (Id.) While

Thermo contested proper notice earlier in the case (Doc. 13 at 11-16),

it has not raised any compliance question in the present motion.

7 The record is unclear whether and for how long Utiger and New were

peers. New claims the two were “peers” when they both reported directly

to Lagarde, prior to her reporting line change. (Doc. 87-3 ¶ 12.)

However, New clarifies in her deposition that, while employed at Thermo,

she believed the two were not peers, despite being “peers on the GLT,”

as she no longer reported to Lagarde. (Doc. 87-66 at 296:15-23.) There

is no evidence that Utiger had a supervisory role, or other

responsibility, over New. Of note, New claims she was not Utiger’s peer

in band level at Thermo, as Utiger was a band 13, and that she “supported

Utiger.” (Docs. 87-66 at 183:17-19; 87 at 5 n.38; 86-14.) However, as

noted infra, she simultaneously claims she was “demoted” to band level

12 when she received a Job Architecture letter in August 2018 -- less

than two months before she left Thermo. (Doc. 87 at 25.)

dismissed a female candidate New proposed and recommended a male

for Held’s position. (Doc. 87-8 ¶ 2.)

Upon Thermo’s acquisition of Patheon, Utiger became Thermo’s

President of North America (“NA”) on January 1, 2018. (Doc. 87-

69 at 19:4-12.) His team included three women: Toni Sweeney, NA

Human Resources Business Partner; Jillian Otto, who was also the

Business Manager on New’s team supporting NA; and Amanda Bosse,

General Manager for Cincinnati. (Docs. 87-3 ¶¶ 14, 35; 87-68 at

20:15-25; 86-39 at 35:2-17.) Even though he had not worked with

some of these women before (Docs. 87-67 at 13:9-14:11; 87-68 at

27:9-13), Utiger claimed they were “suddenly poor performers

[that] need[ed] to be moved to other roles.”8 (Doc. 87-66 at

137:3-15.) Utiger was known as a “direct” and “results oriented

leader” who was “equally difficult” for both men and women to work

with if he believed his standards were not being met. (Docs. 86-

39 at 35:2-18 (noting Utiger was “pretty direct” and “equally

difficult for [another male-led] business”); 86-42 at 296:14-22

(“[Utiger] had a pattern of if he did not like the way somebody

performed, he was incredibly difficult to work with.”); 86-43 at

247:21-248:7 (describing Utiger as “results oriented” and

“straight to the point”); 86-45 at 264:7-11 (noting Utiger had

8 Utiger also complained about at least one other women who worked for

him. (Doc. 87-3 ¶ 12 (calling Laura Parks, New’s direct report under

OneSource, a “waste” and complaining that she was lazy and added no value

to the organization).)

“differences” with many at Thermo, including men).) At one point,

these three women complained to Jewett about Utiger’s “harsh”

practice of “call[ing] people out” about their poor job performance

in public meetings. (Doc. 87-62 at 41:17-42:6.) Utiger was

counseled about his behavior (id. at 41:5-15) but reacted by

inappropriately demanding to know who on his team had complained

(id. at 301:8-16). Utiger would eventually recommend Bosse to be

his successor, noting she was “the only one on the team that could

actually run the business” based on her “extensive experience in

business management” at multiple levels. (Doc. 90-15 at 173:1-

15.)

Additionally, even though he never supervised New, Utiger had

strong opinions about New’s job performance. (Doc. 87-66 at

131:13-23.) Utiger routinely called New “unqualified” and

“incompetent,” claimed she lacked “the skills to do the job,” and

made other derogatory comments directly to her and to fellow GLT

members. (Id. at 129:1-130:1, 157:16-158:11.) Utiger believed

New did not have the requisite experience and technical skills to

handle Business Management or OneSource, complained to Lagarde

that the data she presented was not accurate, and called New “a

waste of SG&A [sales, general management and administration

expenses]” to her face. (Docs. 87-69 at 71:14-20, 102:6-18; 87-3

¶¶ 7, 9.) When New transitioned to the newly established Business

Management position, “Utiger worked with other business unit

leaders to lobby” Lagarde to eliminate her role because the

“function was not needed.” (Doc. 87-3 ¶ 10.) New, who lived and

worked in North Carolina, normally encountered Utiger, who lived

in Maryland, when they were both a part of business meetings

multiple times a week (Docs. 86-46 at 107:3-21; 87-69 at 219:12-

16), and he did not, according to New, interact with her enough to

have an educated opinion on her performance or the intricacies of

her position. (Doc. 87-66 at 131:17-23.)

New would confront Utiger and ask him for “feedback” on how

“to do a good job.” (Id. at 129:5-11.) Despite her efforts,

Utiger made “repeated attempts to try to displace [New] and . . .

take away functions from [her.]” (Id. at 226:12-15.) Utiger

believed each business unit should control its business

management, and he was unhappy with the process that created the

Global Business Management function. (Doc. 86-48 at 68:9-17.) In

early 2018, Utiger made a presentation to the GLT to move a

significant function from Global Business Management, under New,

back to the local NA sites, under Utiger. (Doc. 87-69 at 114:14-

116:2.) Utiger was “very critical of the business management

function” and “critical of what” business management was doing.

(Doc. 86-45 at 223:2-25.) Fellow executives on the GLT disagreed

with him and described Utiger’s tenacious campaign for his

preferred organizational structure as “one step forward, two steps

back,” “distracting,” “trivial,” and even a “waste of time and

resources.”9 (Docs. 87-19, 87-20, 87-21.)

New had “weekly complaints about [her] from [Utiger]” that

she would raise with Lagarde and Mike Jewett, the head of Human

Resources for PSG. (Doc. 87-66 at 14:22-24, 117:18-21.) Beginning

around January 2018, New attributed the pattern of Utiger’s actions

to animus against women. (Id. at 43:1-18.) She would discuss the

“harassment” from Utiger “at least on a monthly basis” with

multiple Thermo executives, including Lagarde, Negron, and Jewett,

and with Human Resources employees. (Id. at 44:12-45:17, 117:23-

118:11.) New also heard rumors that Utiger had called her “the

queen,” and other women “princesses,” behind her back. (Id. at

160:3-18.) When New twice confronted Utiger about these comments,

Utiger told her, “You weren’t supposed to hear it.” (Id. at 161:1-

6.)

Lagarde was aware of New’s issues with Utiger at Patheon

because Utiger complained about New’s job performance directly to

Lagarde. (Id. at 126:5-19.) Others at Thermo perceived a “toxic”

relationship between New and Utiger. (Docs. 87-67 at 123:23-

124:6; 87-62 286:12-287:1.) In the spring of 2018, New spoke with

Jewett about Utiger’s pattern of behavior with women, and Jewett

told New that Marc Casper, Thermo’s CEO, was aware of the

9 Negron and Lagarde disagreed with Utiger and had “contentious

conversations” concerning his “very strong position” of how the

organization should be structured. (Docs. 86-45 at 121:14-122:14; 86-

43 at 187:15-22.)

complaints and that Jewett and Lagarde would address them.10 (Doc.

87-8 ¶ 3.)

In April 2018, during a conversation with New about Otto’s

potential successor, Utiger rejected a female candidate because

“she would be having children and could not do the job” and its

required travel. (Doc. 87-3 ¶ 15.) In May 2018, following this

conversation, Utiger contacted Jewett about a “threat” he received

from New about working with women and a statement to the effect

that HR was questioning his “drive for diversity.” (Doc. 87-32.)

Jewett emailed New about it, and New denied she made a threat or

discussed HR, but she reiterated her concern about Utiger’s

“inappropriate comments” and “attempts to disparage.” (Id.) She

forwarded this email exchange to Negron, who said he “hopes this

stops soon.” (Id.) In September 2018, Otto and New complained to

Jewett about Utiger’s inappropriate conduct during a business

meeting, and Otto’s “ongoing and difficult relationship with

[another employee] and secondarily with [Utiger].” (Doc. 87-26.)

A subsequent investigation by Thermo found Utiger was “rude and

adversarial with certain employees” and “exhibits a negative

attitude toward [Otto].” (Id.) Otto and New disagreed on whether

Utiger’s behavior was based on sex. (Doc. 87-67 at 115:2-25.)

10 Thermo notes that Jewett has maintained that, during his conversations

with New about Utiger’s behavior, she “[made] it clear that this [was]

not a gender issue” and “affirmately [sic] added that it was not a gender

issue.” (Doc 87-14 at 10.) However, for the purposes of summary

judgment, the court views the facts in the light most favorable to New.

Jewett ultimately failed to address New’s issues (Doc. 87-66 at

226:7-9), and Utiger’s behavior did not change while New was

employed at Thermo (id. at 304:13-16).

4. New’s Departure from Thermo

Throughout 2018, PSG was undergoing Human Resources Review

and Job Architecture. (Doc. 87-62 at 197:20-198:1.) Human

Resources Review was an annual process for evaluating talent and

considering future job assignments. (Id. at 191:12-23.) The Job

Architecture process, by contrast, evaluated PSG roles to fit them

into Thermo’s job structure, post-acquisition, “banding” positions

within pay levels and assigning job titles. (Id. at 68:1-14,

273:9-12.) Division Presidents, upon the change in control, were

integrated into Thermo at band level 13 and thus were not included

in the Job Architecture process. (Id. at 98:5-23; Doc. 86-13.)

In May 2018, during Human Resources Review, Casper, Lagarde,

and other talent evaluators identified multiple possible next

roles for New within Thermo, including the position of Vice

President, General Manager, Supplements within the BioProduction

Division (the “BPD” job or role) at a company Thermo was in the

process of acquiring.11 (Docs. 87-37; 87-63 at 91:6-24.) New was

identified as a “top talent” who was “extremely important to the

11 The BPD role would be in Thermo’s Life Sciences Group, which was

outside of PSG. (Docs. 87-63 at 91:11-17; 86-29 at 3.)

organization,” and had “high potential” to reach “the highest

levels in the organization.” (Docs. 87-60 at 165:23-25; 87-65 at

138:8-9, 141:9-15, 153:1-7.) She was also rated “high risk”

because Thermo was “concerned” about losing her to another

organization as she was “difficult to replace externally.” (Doc.

87-65 at 144:5-22.) While Thermo knew that New was unable to

accept a relocation (Docs. 87-66 at 265:20-25; 87-63 at 72:14-20;

87-65 at 99:2-18),12 the Human Resources Review group was looking

for a position that matched New’s long-term career development

goals of running a business unit and moving to another division.

(Docs. 86-22; 86-26; 86-46 at 252:9-254:7.) The BPD role would

require relocation, but not until after one year (Doc. 86-29), and

it would allow New to have full control over profits and losses

(Doc. 86-26), which was another of her career developmental goals

(Doc. 86-22).

In early May 2018, unbeknownst to Thermo, New told the former

CEO of Patheon that she felt Thermo was too “bureaucratic,” so she

was “amping up the [job] search process.” (Doc. 86-27.)

In early June, Lagarde told New of the potential BPD job.

(Doc. 87-41.)

In June 2018, as a part of Job Architecture, Thermo analyzed

the cost of long-term incentives flowing from banding

12 New was “very clear” a relocation would have resulted in a divorce and

loss of her children. (Doc. 87-66 at 323:5-8.)

recommendations and determined that PSG was top-heavy with

executives (band levels 11-13). (Doc. 87-33.) New’s Business

Management role was identified as one of the positions to be “re-

assessed as she moves into her next role.” (Id.) Other roles

from the GLT that were identified for further review or “re-

band[ing]” included Negron’s Commercial role from band 13 to band

12 and a Vice President and General Manager role in Thermo’s “Soft

Gels” division to band 11. (Id.; 87-65 at 169:5-9.) By June 19,

it was determined that Thermo would “not backfill[] [New’s role]

when she moves on.” (Doc. 87-34.)

New’s responsibilities changed over time. New’s direct

report under OneSource left sometime in late 2017, and the team

reported directly to her. (Doc. 86-46 at 28:16-18, 29:12-30:19.)

In March 2018, New’s integration team lead was arrested and

consequently placed on leave. (Id. at 74:15-75:24.) Thereafter,

the integration team reported directly to New. (Id. at 32:8-11.)

In March or April, New was notified that she would begin to lose

her responsibility over Cognizant because Thermo moved those

services inhouse. (Id. at 35:11-21, 97:6-98:6.) New also lost

her Shared Services responsibility (for back-office services) in

May. (Doc. 87-3 ¶ 17.) And sometime before July 2018,13 Thermo

13 In her deposition, New could not identify a precise time this

responsibility was moved. (Doc. 86-46 at 73:22-24.)

moved some client-facing responsibilities from New’s project-

management team inhouse. (Docs. 86-46 at 73:1-21; 1-1 at 153.)

In June 2018, New once again approached Jewett about concerns

about Utiger’s behavior. (Doc. 87-3 ¶ 18.) Shortly thereafter,

she was removed from in-person attendance at Quarterly Business

Reviews with the CEO and asked to dial in with most of the

attendees.14 (Id.; Docs. 1-1 at 153; 90-5.) On July 16, 2018, New

met with Lagarde to express her concern that those at Thermo,

including Lagarde himself, were diminishing her role within the

company. (Doc. 87-66 at 54:10-21.) At this meeting, Lagarde

admitted that he was reducing New’s responsibilities in her best

interest and that he had no upcoming executive positions available

in PSG. (Id. at 54:22-55:9.) However, he advised New he was

“owning” her career development and that he was putting New forward

for positions elsewhere. (Id. at 99:16-20.) During the

discussion, Lagarde said he would not intend to make a contractual

payout to her. (Id. at 99:21-25.) New also told Lagarde that her

issues with Utiger were causing heart palpitations, to which

14 To the extent New places her removal from Quarterly Business Reviews

in mid-July instead of mid-June (Doc. 87 at 14), this would contradict

her previously sworn declaration (Doc. 87-3 ¶¶ 18-19). See Cleveland

v. Pol’y Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999) (“[A] party cannot

create a genuine issue of fact sufficient to survive summary judgment

simply by contradicting his or her own previous sworn statement (by,

say, filing a later affidavit that flatly contradicts that party’s

earlier sworn deposition) without explaining the contradiction or

attempting to resolve the disparity.”).

Lagarde replied her issues were “fake news.”15 (Id. at 15:11-18.)

The following day, July 17, New met with Jewett, who told her

there was no job for her in PSG but that they were looking for

other available job options for her. (Id. at 55:23-56:8.) That

same day, New received an email asking her to dial into Quarterly

Business Reviews and not to attend in-person. (Doc. 90-5.) Then

on July 20, she was advised by the leader of the M&A group that

Lagarde had removed her from further involvement in Thermo’s

investigation into an acquisition of Alster. (Doc. 87-3 at ¶ 18.)

At Patheon, New “had been the internal lead” during Patheon’s due

diligence work in investigating an Alster acquisition in 2017, but

she was “not included” when Thermo began its own Alster inquiry in

May 2018. (Id.; Doc. 1-1 at 153.) Thermo had its own M&A team,

and M&A was not a part of New’s Business Management duties. (Doc.

87-66 at 58:19-59:3.)

On July 23, New’s counsel sent a letter to Thermo “in

accordance with the ‘Good Reason’ provision in her Employment

Agreement.” (Doc. 87-43.) The letter contended that New’s change

in reporting relationship (putting Negron between her and Lagarde)

was a “significant change” constituting “Good Reason” under her

Employment Agreement. (Id.) Further, the letter claimed material

15 New’s July 16 meeting notes do not reference issues with Utiger other

than in the context of a disagreement between New and Utiger about

Business Management responsibilities. (Doc. 90-7.)

reductions in her duties and responsibilities, including “the

recent elimination of her role and involvement in leading mergers

and acquisitions, shifting of responsibilities of carve-outs to

peers, the removal of the integration lead as a direct report and

elimination of the function and role, [and] elimination of project

management office responsibilities including management of

Cognizant and outsourced operations.” (Id.) The letter also

stated that New and her counsel “would like to open a constructive

dialogue to discuss [New’s] transition period and transfer of

information and responsibilities, and her severance benefits.”

(Id.)

On August 22, New received an August 16, 2018 letter from

Jewett explaining Thermo’s Job Architecture changes and advising

that her “job profile title” would be “Vice President, Business

Management” with a band level of 12. (Doc. 1-1 at 138.) That

same day, Thermo’s 30-day “cure period” under New’s Employment

Agreement that was triggered by the July 23, 2018 letter from New’s

counsel expired.

On August 27, 2018, New’s counsel emailed Thermo’s counsel

suggesting they discuss a separation arrangement. (Doc. 1-1 at

139.) On September 5, 2018, Thermo offered New the BPD job outside

of the PSG group, but this position would eventually require her

to relocate and would result in reductions in title, band level,

reporting level, and compensation (through the loss of a 2019

synergy bonus). (Id.) New turned down the offer the next day,

and her counsel communicated her rejection to Thermo because the

“reporting, duties, responsibilities and compensation are not

comparable to her current role” and the position required

relocation. (Id. at 148.) New’s counsel also informed Thermo

that New would be leaving the company effective November 2, 2018.

(Id.) In response, Thermo advised New’s counsel that New’s

position “had not changed” and Thermo did not agree that the “Good

Reason” provision of her contract was triggered. (Id. at 147.)

On September 10, in a pre-scheduled call to discuss the BPD

offer, Casper attempted to persuade New to take the BPD job despite

her insistence that she could not relocate. (Doc. 87-66 at 308:13-

20.) Thermo maintained that relocation was not required until

after New’s son graduated high school, over a year away. (Docs.

86-46 at 227:14-228:10; 86-27.) Casper told her that if she did

not take the position, he had no other available job for her in

the organization and it would be “unfortunate” if she left the

company on negative terms after her successful time building

Patheon. (Id. at 309:2-11.) Casper asked New to trust him and

Lagarde, but New told him that she could not do so because Lagarde

had yet to fix Utiger’s harassment. (Id. at 310:13-311:6.) Casper

ended the conversation by telling New that he had “no job for her,”

so she should work with Lagarde and Jewett on her exit. (Id. at

309:19-23.)

Following her conversation with Casper, New spoke with Jewett

about her separation, and Jewett followed up with a September 20

letter with a severance inconsistent with the “Good Reason”

benefits in her contract. (Doc. 87-51 at 2.) In his

correspondence, Jewett informed New that the August 16 Job

Architecture letter was sent erroneously, and her job title,

position, and responsibilities remained the same. (Id.)

The Job Architecture was implemented October 1, slotting New

at a band level of 12; system title of Vice President, Business

Management; and business title of Group Vice President,

Enterprise-Wide Operations. (Doc. 87-52.) On October 2, New’s

counsel sent a letter to Thermo outlining some of the issues New

had encountered at the company, including – for the first time in

writing – her issues with Utiger, and advising that New would be

leaving her employment effective October 5, 2018.16 (Doc. 1-1 at

152-154.)

Throughout her time at Thermo, New’s position and

compensation never changed, and she maintained her spot on the GLT

until she left on October 5, 2018. (Doc. 86-46 at 32:3-32:15,

81:16-82:15, 195:11-15.) New never received the “Good Reason”

severance benefits outlined in her Employment Agreement, and her

16 New left at that time because she believed she was “told to leave” by

Casper. (Doc. 86-46 at 186:22-187:2.) New tried to work on her severance

with Jewett but contends she had “no choice but to leave” once he “took

a significant period of time to get back to [her].” (Id. at 187:5-11.)

stock options and RSUs that were to vest immediately upon her

termination by Thermo without Cause, or by New with “Good Reason,”

were removed from her investment account. (Doc 87-3 ¶ 38.)

On November 21, 2018, New filed a Charge of Discrimination

with the Equal Employment Opportunity Commission alleging

employment discrimination that took place beginning in May 2018.

(Doc 86-34.)

B. Procedural History

New filed an eight-count complaint on August 7, 2019, alleging

the following: Unlawful Sex Discrimination and Harassment, in

violation of Title VII, 42 U.S.C. § 2000e-2(a) (Count I); Hostile

and Abusive Working Environment, in violation of Title VII (Count

II); Unlawful Retaliation, in violation of 42 U.S.C. § 2000e-3(a)

(Count III); Breach of Contract regarding Severance and Other

Benefits (Count IV); Breach of Contract regarding Stock Options

and RSU’s (Count V); Conversion (Count VI); Fraud (Count VII); and

Failure to Pay Wages and Benefits when Due, in violation of the

North Carolina Wage and Hour Act, N.C. Gen. Stat. §§ 95-25.1 et

seq. (Count VIII). On September 30, 2019, along with its answer

to New’s complaint (Doc. 10), Thermo filed a motion to dismiss

pursuant to Federal Rules of Civil Procedure 12(b)(6) and 9(b)

(Doc. 8), which this court granted in part, dismissing the fraud

claim without prejudice, and denied in part on August 7, 2020 (Doc.

13). Following discovery, Thermo filed the present summary

judgment (Doc. 73), which is fully briefed (Docs. 86, 87, 90) and

ready for decision.

II. ANALYSIS

A. Standard of Review

A court must grant a motion for summary judgment if the

pleadings, depositions, and affidavits submitted show that there

is no genuine dispute as to any material fact and the moving party

is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

A fact is considered “material” if it “might affect the outcome of

the suit under the governing law.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). Under this standard, a genuine

dispute of material fact exists “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.”

Id. As a result, the court will only enter summary judgment in

favor of the moving party when the record “shows a right to

judgment with such clarity as to leave no room for controversy”

and clearly demonstrates that the non-moving party “cannot prevail

under any circumstances.” Campbell v. Hewitt, Coleman &

Associates, Inc., 21 F.3d 52, 55 (4th Cir. 1994) (citation

omitted). “Credibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the facts

are [fact-finder] functions . . .” Anderson, 477 U.S. at 255. On

summary judgment, “[t]he evidence of the non-movant is to be

believed, and all justifiable inferences are to be drawn in his

favor.” Id. However, “only reasonable inferences from the

evidence . . . in light of the competing inferences to the

contrary” should be considered by the court. Sylvia Development

Corp. v. Calvert County, Maryland, 48 F.3d 810, 818 (4th Cir. 1995)

(citations omitted). In evaluating material submitted in support

of or in opposition to a motion for summary judgment, the court

may reject inadmissible evidence. See Fed. R. Civ. P. 56(c)(4);

Evans v. Technologies Applications & Service Co., 80 F.3d 954, 962

(4th Cir. 1996).

While the movant bears the initial burden of demonstrating

that there are no genuine disputes of material fact, once that

burden has been met, the non-moving party must demonstrate the

existence of a genuine dispute of material fact. Bouchat v.

Baltimore Ravens Football Club, Inc., 346 F.3d 514, 521 (4th Cir.

2003); Matsushita Electric Industrial Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 586–87 (1986). A mere scintilla of evidence

is insufficient to circumvent summary judgment. Anderson, 477

U.S. at 252; Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013)

(“[T]he nonmoving party must rely on more than conclusory

allegations, mere speculation, the building of one inference upon

another, or the mere existence of a scintilla of evidence.”); see

also Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.

1987) (noting that there is an affirmative duty for “the trial

judge to prevent factually unsupported claims and defenses from

proceeding to trial” (citation omitted)). Instead, the nonmoving

party must convince the court that, upon the record taken as a

whole, a rational trier of fact could find for the nonmoving party.

Anderson, 477 U.S. at 248–49. Trial is unnecessary if “the facts

are undisputed, or if disputed, the dispute is of no consequence

to the dispositive question.” Mitchell v. Data General Corp., 12

F.3d 1310, 1315–16 (4th Cir. 1993).

B. Employment Agreement Claims

1. Good Reason

New raises four claims stemming from her Employment

Agreement: Breach of Contract regarding Severance and Other

Benefits (Count IV); Breach of Contract regarding Stock Options

and RSU’s (Count V); Conversion (Count VI); and Failure to Pay

Wages and Benefits when Due, in violation of the North Carolina

Wage and Hour Act, N.C. Gen. Stat. §§ 95-25.1 et seq. (Count

VIII). As this court previously stated, to maintain her claims

for breach of contract under her “Good Reason” provision, New must

demonstrate a genuine dispute as to whether a material reduction

in her duties or responsibilities occurred between July 7, 2018

(ninety days prior to her termination) and July 23, 2018 (the date

of her notice to Thermo), and Thermo must have had until August

22, 2018 to cure. (See Doc. 13 at 13-14.)

Thermo argues that none of the “Good Reason” events outlined

in New’s July 23 letter occurred between July 7 and July 23, 2018.

(Doc. 86 at 18-21.) Thermo further argues that the alleged events

in her July 23 letter do not constitute “Good Reason” as defined

by her Employment Agreement. (Id. at 21-24.) In response, New

contends that she had “Good Reason” pursuant to both the “[1]

elimination of her role as confirmed by Lagarde during their July

16 meeting and [2] her exclusion from further work on Alster and

M&A.” (Doc. 87 at 21-23.) In reply, Thermo argues that New has

“narrowed her Good Reason claim to a single event,” and that her

involvement with Alster was “limited” and “continued . . . after

July 23.” (Doc. 90 at 10-12.) Thermo characterizes New’s

interpretation of the phrase “elimination of her role” in the July

23 letter as novel and contends it “clashes with basic grammar”

and “calls for an unreasonable inference” that New’s Business

Management position had been eliminated on July 16. (Id. at 12-

13.)

Under North Carolina law, interpretation of a written and

unambiguous contract is a question of law for the court. Briggs

v. American & Efird Mills, Inc., 111 S.E.2d 841, 843 (N.C. 1960).

“Whenever a court is called upon to interpret a contract its

primary purpose is to ascertain the intention of the parties at

the moment of its execution.” Lane v. Scarborough, 200 S.E.2d

622, 624 (N.C. 1973). When construing contractual terms, a

contract’s plain language controls. See DeLoach v. Lorillard

Tobacco Co., 391 F.3d 551, 558 (4th Cir. 2004) (noting that “as

under general principles of contract law, our task is to ‘give

ordinary words their ordinary meanings.’” (quoting Internet East,

Inc. v. Duro Communications, Inc., 553 S.E.2d 84, 87 (N.C. Ct.

App. 2001)); Walton v. City of Raleigh, 467 S.E.2d 410, 411 (N.C.

1996) (“If the plain language of a contract is clear, the intention

of the parties is inferred from the words of the contract.”). “If

the contract is ambiguous, however, interpretation is a question

of fact and resort to extrinsic evidence is necessary.” Crider v.

Jones Island Club, Inc., 554 S.E.2d 863, 866 (N.C. Ct. App. 2001)

(citations omitted). An ambiguity may exist if the language is

“fairly and reasonably susceptible to either of the constructions

asserted by the parties.” Glover v. First Union National Bank of

North Carolina, 428 S.E.2d 206, 209 (N.C. Ct. App. 1993); see also

Crawford v. Potter, 2005 WL 2452092, at *4 (M.D.N.C. Oct. 4, 2005)

(unpublished) (“Ambiguity is not created merely by a difference of

opinion between the parties on the issue of what certain terms

mean.” (citing Wachovia Bank & Trust Co. v. Westchester Fire

Insurance Co., 172 S.E.2d 518, 522 (N.C. 1970))). In determining

whether language is ambiguous, “words are to be given their usual

and ordinary meaning and all the terms of the agreement are to be

reconciled if possible.” Anderson v. Anderson, 550 S.E.2d 266,

269-70 (N.C. Ct. App. 2001) (citation omitted).

Here, the contractual language at issue is the “Good Reason”

definition: “a material reduction of the Executive’s duties or

responsibilities that is inconsistent with the Executive’s

position as described in this Agreement (i.e. that would result in

a de facto reduction in rank).” (Doc. 1-1 at 4 (emphasis added).)

This language makes clear that the parties did not intend for any

responsibility or duty to constitute “Good Reason.” Rather, New

must demonstrate a genuine dispute as to whether such reduction

was material enough to be so inconsistent with her position that

losing it “would result in a de facto reduction in rank” of Group

Vice President, Enterprise-Wide Operations.17 (Doc. 1-1 at 23.)

New argues that her removal as a team member on the Alster

acquisition project is sufficient to trigger the “Good Reason”

provision of her contract. As Thermo contends, the record does

not support this. As Group Vice President, Enterprise-Wide

Operations, New was neither a member of Thermo’s corporate M&A

team, nor did she “lead” M&A, all facts she knew in taking the

Thermo job.18 (Docs. 86-46 at 58:19-59:3, 61:3-18; 87 at 22.) She

was not initially involved with the Alster project at Thermo when

it began in May 2018. (Doc. 1-1 at 153.) At Thermo, New oversaw

17 In her original contract with Patheon, New’s position is described as

“Senior Vice President, Human Resources.” (Doc. 1-1 at 18.) But New

is listed as Group Vice President, Enterprise-Wide Operations in her

offer letter from Thermo, and any aspects of her employment that were

“inconsistent with specific terms” of her initial employment agreement

with Patheon are “governed by the terms of [the signed August 2017 letter

agreement.]” (Id. at 23.)

18 New’s statement that Lagarde had promised her that she would be on his

“internal deal team” would not alter this conclusion, as it never

materialized.

Global Business Management, which took up at least 80% of her time

(Docs. 86-16; 87-14 at 10; 87-66 at 60:22-61:2; 86-43 at 48:15-

49:1), and mergers and acquisitions was a separate function

conducted by a separate group that was not a core part of those

responsibilities (Doc. 86-46 at 58:25-59:3, 71:10-15). New does

not present evidence indicating how much time she spent on the

Alster acquisition at Thermo.19 The only evidence in the record

reflects that New’s Alster role at Thermo was “limited” and took

“a couple hours at max,” as the “predominate scope of her role was

knowledge transfer from the original Patheon due diligence

effort.” (Doc. 86-44 at 147:16-148:7). New was not a part of

management-level meetings that occurred in April and June 2018.

(Doc. 86-44 at 148:8-20.) Thus, the fulfillment of her duty

transferring knowledge of her prior Alster work to Thermo’s M&A

19 When asked in her deposition how much time she spent on mergers and

acquisitions, New’s answer was nonresponsive. She noted it “fluctuated”

and cited Jewett’s testimony for the proposition that mergers and

acquisitions would take up “20 percent” of her time. (Doc. 86-46 at

59:4-12.) However, as New admits, and taking the facts in the light

most favorable to her, Jewett’s “20 percent” answer included not just

mergers and acquisitions, but other duties such as project management

and working with outside vendors, combined with mergers and acquisitions,

only excluding her primary Business Management role. (Id. at 59:15-19,

60:21-61:2; Doc. 87-14 at 10; see also Doc. 87-3 ¶ 6 (combining M&A

responsibilities with “Carve Outs, Integrations, and Strategic Projects”

under New’s “Project Management Office” umbrella of responsibilities).)

Further, it is undisputed that the “leading mergers and acquisitions”

portion of her Good Reason letter was a reference to her alleged removal

from the Alster acquisition team around July 2018 (Doc. 86-46 at 57:4-

10, 72:4-13), and New does not testify that she spent any significant

amount of time or involvement on the Alster project prior to her removal.

She merely notes that – while employed at Patheon – she led the team

that conducted the due diligence work on Alster back in 2017. (Id. at

58:3-11.)

team would not “result in a de facto reduction in rank” of her

Group Vice President, Enterprise-Wide Operation position.20

Additionally, New’s counsel argues that “[t]he phrase

‘elimination of her role’ in the Good Reason letter concerned

Lagarde’s admission on July 16 that he was eliminating New’s job”

and not solely her work in M&A.21 (Doc. 87 at 22.) While the

elimination of New’s job would constitute “Good Reason,” it is

undisputed that New’s job was not eliminated in July 2018. (Docs.

1-1 at 149-50; 87-65 at 188:3-189:15.) Indeed, New remained in

her position, and continued to receive the same compensation, until

she resigned in October 2018. (Doc. 87-46 at 81:16-82:15.)

Therefore, even if Lagarde “eliminated” New’s role in July 2018,22

Thermo “cured” this defect by the end of the cure period in paying

20 Though the extent is unclear, there is evidence in the record that

New’s limited role with Alster continued after July 23, 2018. (Docs.

86-46 at 67:20-68:6; 90-8.) Ultimately, Thermo reduced the Alster

acquisition to a carveout “related to softgels.” (Doc. 87-64 at 126:19-

127:20, 151:10-25.)

21 The letter’s relevant text lists New’s harms as: “the recent

elimination of her role and involvement in leading mergers and

acquisitions, shifting of responsibilities . . . to peers, the removal

of the integration lead . . . and elimination of the function and role,

elimination of project management office responsibilities including

management of Cognizant and outsourced operations, just to name a few.”

(Doc. 1-1 at 136.) In her deposition, New testified that the “recent

elimination of her role and involvement in leading mergers and

acquisitions” portion of her Good Reason letter was a reference to her

alleged removal from the Alster acquisition team around July 2018. (Doc.

86-46 at 57:4-10, 72:4-13.)

22 Thermo notes that New’s July 16 meeting notes do not refer to any job

loss. (Doc. 90-7.) However, for the purposes of summary judgment, the

court views the facts in the light most favorable to New.

her to continue as Group Vice President, Enterprise-Wide

Operations. (See Doc. 1-1 at 5 (noting Thermo may “cure . . .

within thirty (30) days after receiving such notice”)).

For these reasons, the court finds that the “elimination of

[New’s] role and involvement in leading mergers and acquisitions”

does not constitute “Good Reason” pursuant to the terms of her

Employment Agreement. Therefore, New has not demonstrated a

genuine dispute as to whether an event which would trigger “Good

Reason” occurred between July 7 and July 23, 2018, the relevant

period under the Employment Agreement.

2. Termination “Other than for Cause”

In the alternative, New argues that Thermo breached her

Employment Agreement by terminating her “other than for Cause”

when Casper told her there was no job for her and she should “work

on her exit.” (Doc. 87 at 20-21.) She further contends that

Thermo’s severance offer is consistent with “a policy that only

applies if [Thermo] eliminated her position,” and therefore a

material dispute exists to whether she was terminated. (Id. at

21.) In response, Thermo argues that her interpretation of

Casper’s comments “conflicts with her repeated statements about

her resignation” and that the discussion was in the context of her

repeated representations that she wished to resign. (Doc. 90 at

13.) Ultimately, New argues that the inference that she was fired

after her conversation with Casper is reasonable. Again, the

record does not support such a contention. See Ford Motor Co. v.

McDavid, 259 F.2d 261, 266 (4th Cir. 1958), cert. denied, 358 U.S.

908 (1958) (“Permissible inferences must still be within the range

of reasonable probability, however, and it is the duty of the court

to withdraw the case from the jury when the necessary inference is

so tenuous that it rests merely upon speculation and conjecture.”).

New’s proffered inference removes the conversation with

Casper from the surrounding context. This conversation took place

following months of communications from New and her counsel that

she wished to resign from Thermo with “Good Reason” if her concerns

were not addressed. (Doc. 1-1 at 136 (July 2018: “we would like

to open a constructive dialogue to discuss her transition period

and transfer of information and responsibilities, and her

severance benefits”), 139 (August 2018: “we need to focus our

discussion on her separation”), 148 (September 2018: “[The BPD

role] is not a position she can accept. . . . The Good Cause

referenced in our prior communications has not been cured . . .

[so] [c]ontinuing with the company is not something she is

interested in.”).) Critically, this included a message from New’s

counsel declining the BPD offer mere days before counsel’s phone

call communicating a November 2 separation date from Thermo. (Id.

at 148 (“Continuing with the company is not something she is

interested in. . . . To that end, we propose a scheduled departure

date of November 2.”).) It is undisputed that “Casper simply

interpreted New’s rejection of the BPD job as a resignation.”

(Doc. 87 at 18.)

Second, there is no communication from Thermo asking or

directing New to leave or informing her that her position was

eliminated by a certain date. To the contrary, Thermo made clear

she could continue in her current position. (Doc. 1-1 at 150

(“your current position has not been eliminated and your job

responsibilities remain the same”).) It was New’s counsel, not

Thermo, who voluntarily proposed a November 2 separation date (id.

at 148), followed by an earlier date of October 5 once her

severance demands were not being met (id. at 154).

Finally, New points to Thermo’s September 2018 severance

offer as evidence that Thermo was terminating her without cause.

(Doc 87 at 21.) This inference ignores the plain language of

Thermo’s communication. (See Doc. 1-1 at 150 “while you are not

eligible . . . [Thermo] is willing to offer you a separation

payment . . . to achieve an amicable resolution of your

concerns”). It also ignores the only context: that New had

indicated she intended to leave Thermo. See Scott v. Harris, 550

U.S. 372, 380 (2007) (“When opposing parties tell two different

stories, one of which is blatantly contradicted by the record, so

that no reasonable jury could believe it, a court should not adopt

that version of the facts for purposes of ruling on a motion for

summary judgment.”). For these reasons, New has not produced

evidence that gives rise to a genuine dispute that Thermo

terminated her other than for cause.

New has thus failed to demonstrate a genuine dispute of

material fact as to her claims for Breach of Contract regarding

Severance and Other Benefits (Count IV) and Breach of Contract

regarding Stock Options and RSU’s (Count V). Consequently,

Thermo’s motion for summary judgment as to those claims will be

granted.

3. Conversion and Wage and Hour Act Claims

New’s claim for conversion (Count VI) and North Carolina Wage

and Hour Act (Count VIII) arise out of the rights stemming from

her Employment Agreement. New acknowledges as much. (Doc. 87 at

24 (stating that New’s “wage payment and conversion claims are

inextricably tied to her breach of contract claims”).) As to

conversion, she alleges that Thermo “wrongfully converted [her]

vested Stock Options and RSUs by removing them, or causing their

removal, from [her] Fidelity account” and “effectively prevent[ed]

[her] from exercising her vested Stock Options and RSUs in

accordance with the terms and conditions of the Employment

Agreement.” (Doc. 1 ¶¶ 153, 154.) As for her Wage and Hour Act

claim, she alleges that her “severance pay, bonuses and other

benefits and [her] vested [Thermo] Stock Options and RSUs

constitute wages due, and [Thermo] failed to pay [her] all wages

due upon the termination of her employment in violation of the

North Carolina Wage and Hour Act (“NCWHA”), N.C. Gen. Stat. §§ 95-

25.1 et seq.” (Id. ¶ 166.) As to both claims, she contends she

is entitled to recovery because “she terminated her employment for

Good Reason or was terminated [by Thermo] ‘other than for Cause.’”

(Doc. 87 at 24.)

In North Carolina, “[a] claim for conversion ‘requires (1) an

unauthorized assumption and exercise of right of ownership over

property belonging to another and (2) a wrongful deprivation of it

by the owner, regardless of the subsequent application of the

converted property.’” Lockerman v. South River Electric

Membership Corp., 794 S.E.2d 346, 354 (N.C. Ct. App. 2016) (quoting

North Carolina State Bar v. Gilbert, 663 S.E.2d 1, 4 (N.C. Ct.

App. 2008)). The Wage and Hour Act defines “wage” as “compensation

for labor or services rendered by an employee whether determined

on a time, task, piece, job, day, commission, or other basis of

calculation” and provides that “[f]or the purposes of G.S. 95–25.6

through G.S. 95–25.13 ‘wage’ includes sick pay, vacation pay,

severance pay, commissions, bonuses, and other amounts promised

when the employer has a policy or a practice of making such

payments.” N.C. Gen. Stat. § 95–25.2(16). Under the act, an

employer is obliged to pay wages, including bonuses and

commissions, when due. Id. § 95-25.6. However, an employee must

have “earned” the wages and benefits to have a claim under the

act. See Hamilton v. Memorex Telex Corp., 454 S.E.2d 278, 282-83

(N.C. Ct. App. 1995); Myers v. Roush Fenway Racing, LLC, No.

1:09CV508, 2009 WL 5215375, at *5 (M.D.N.C. Dec. 28, 2009), report

and recommendation adopted in part, rejected in part, No.

1:09CV508, 2010 WL 2765378 (M.D.N.C. July 12, 2010) (“The North

Carolina courts have consistently interpreted the Act to exclude

recovery of future, unearned wages.”).

Here, because New has failed to establish a genuine dispute

of material fact as to whether Thermo breached the Employment

Agreement entitling her to the various benefits she seeks, her

conversion and Wage and Hour Act claims necessarily fail. In other

words, Thermo did not wrongfully convert her benefits, nor were

they earned wages under the act. Thermo’s motion for summary

judgment on Counts VI and VIII will accordingly be granted.

C. Title VII

New’s remaining causes of action allege violations of Title

VII stemming from the behavior of Utiger. Title VII makes it

unlawful for an employer “to discriminate against any individual

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

privileges of employment, because of such individual’s . . .

sex . . . .” 42 U.S.C. § 2000e-2(a)(1). New alleges that Thermo

violated Title VII in three ways: Unlawful Sex Discrimination and

Harassment (Count I); Hostile and Abusive Working Environment

(Count II); and Unlawful Retaliation (Count III). Each basis for

relief will be addressed in turn.

1. Unlawful Sex Discrimination/Harassment

A plaintiff may prove discrimination under Title VII “either

through direct and indirect evidence of [discriminatory] animus,

or through the burden-shifting framework of McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973).” Foster v. University of

Maryland-Eastern Shore, 787 F.3d 243, 249 (4th Cir. 2015),

abrogated on other grounds by University of Texas Southwestern

Medical Center v. Nassar, 570 U.S. 338 (2013); Diamond v. Colonial

Life & Accident Insurance Co., 416 F.3d 310, 317-18 (4th Cir. 2005)

(noting that a plaintiff may either establish that her protected

status, though not the sole reason, was a “motivating factor” for

her adverse action, or use the McDonnell Douglas burden-shifting

framework). New submits no direct evidence of discrimination.

(See Doc. 87 at 25.) Instead, she advances her Title VII

discrimination and retaliation claims under the burden-shifting

framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Lightner v. City of Wilmington, 545 F.3d 260, 264–65 (4th Cir.

2008) (applying McDonnell Douglas framework to Title VII sex and

race discrimination claims). Under the McDonnell Douglas

framework:

[T]he plaintiff-employee must first prove a prima facie

case of discrimination by a preponderance of the

evidence. If she succeeds, the defendant-employer has

an opportunity to present a legitimate,

nondiscriminatory reason for its employment action. If

the employer does so, the presumption of unlawful

discrimination created by the prima facie case “drops

out of the picture” and the burden shifts back to the

employee to show that the given reason was just a pretext

for discrimination.

Evans v. Technologies Applications & Service Co., 80 F.3d 954, 959

(4th Cir. 1996) (citing St. Mary’s Honor Center v. Hicks, 509 U.S.

502, 511 (1993)). At the second step, the defendant’s burden is

one of production, not persuasion. St. Mary’s Honor Center, 509

U.S. at 509. The ultimate burden of proving “the defendant

intentionally discriminated against the plaintiff remains at all

times with the plaintiff.” Id. at 507 (citation omitted). Under

the McDonnell Douglas framework, the plaintiff must develop some

evidence on which a juror could reasonably base a finding that

discrimination motivated the challenged employment action. Mackey

v. Shalala, 360 F.3d 463, 469 (4th Cir. 2004) (citing Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000)). If a

plaintiff fails to establish a prima facie case of discrimination

or fails to raise a genuine dispute about the employer’s

legitimate, non-discriminatory explanation for the alleged

discriminatory act, the defendant is entitled to summary judgment.

Henson v. Liggett Group, Inc., 61 F.3d 270, 276 (4th Cir. 1995).

To establish a prima facie case of discrimination on this

claim, New must prove by a preponderance of the evidence: “(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.”

Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir.

2010). Here, the first two elements are clearly met because New,

a woman, is a member of a protected class (sex), and she has

presented substantial evidence of satisfactory job performance.

a. Adverse Employment Action

For the third element, an “adverse employment action” is “a

discriminatory act which adversely affects the terms, conditions,

or benefits of the plaintiff’s employment.” James v. Booz-Allen

& Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004) (citations

omitted). In determining what constitutes an “adverse employment

action,” there must be “a significant change in employment status,

such as hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing a

significant change in benefits.” Hoyle v. Freightliner, LLC, 650

F.3d 321, 337 (4th Cir. 2011) (citation omitted); cf. James, 368

F.3d at 376-77 (finding no adverse action in a discrimination

claim, noting it was “significant” that an employee “retained his

position . . . and received the same pay, benefits, and other terms

and conditions of employment”). Whether an action is adverse

depends on the facts relating to it as judged from the perspective

of a reasonable person in the plaintiff’s position, considering

all circumstances. See Burlington Northern & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 71 (2006).

With this framework in mind, each proffered employment action

will be addressed in turn.

i. Diminished Responsibilities

New claims Lagarde’s “diminishing” of her role constituted an

adverse employment action. This includes her removal from in-

person Quarterly Business Reviews, her exclusion from the Alster

acquisition project, and the removal of various direct reports,

including “the removal of the integration lead [PMO] as a direct

report and elimination of the function and role, elimination of

project management office responsibilities including management of

Cognizant and outsourced operations.” (Doc. 87 at 12-15, 25.)

New first claims her change from in-person to remote Quarterly

Business Reviews constitutes an adverse action because it deprived

her of an opportunity “to get feedback on . . . performance” and

“to have face time” to “meet with senior leadership.” (Doc. 87 at

12 (quoting Doc. 87-64 at 119:17-23).) However, she does not offer

any evidence of how feedback received from attending the meeting

remotely – with the majority of attendees – is of lesser value, or

even completely nonexistent, and any implication of adverse

consequences from a mere lack of feedback or “face time” is purely

speculative. James, 368 F.3d at 377 (rejecting a discrimination

claim based on exclusion from “important meetings” because it

“lack[ed] specificity” and “fail[ed] further to substantiate how

the alleged exclusions, whatever they might have been, adversely

affected him”); cf. Adams v. Anne Arundel County Public Schools,

789 F.3d 422, 431 (4th Cir. 2015) (noting that “reprimands and

poor performance evaluations . . . are much less likely to involve

adverse employment actions than the transfers, discharges, or

failures to promote whose impact on the terms and conditions of

employment is immediate and apparent”); Forkkio v. Powell, 306

F.3d 1127, 1130-31 (D.C. Cir. 2002) (“Purely subjective

injuries . . . are not adverse actions.”).

New next bases her claim on her not being involved in mergers

and acquisitions and Thermo’s Alster acquisition project. The

court has already addressed this claim in detail, and for the

reasons noted concludes that the loss of any opportunity related

to mergers and acquisitions does not constitute an “adverse

employment action.”

Finally, New cites her loss of direct reports. Her direct

report under OneSource left sometime in late 2017, and the team

then instead reported directly to her. (Doc. 86-46 at 28:16-18,

29:8-30:19.) Then in March 2018, New’s integration team lead was

placed on leave following her arrest. (Id. at 74:15-75:24.)

Thereafter, the integration team also reported directly to New.

(Id. at 32:8-11.) In neither case did New lose any responsibility,

just the intermediary who reported to her. In March or April, New

was notified that she would begin to lose her responsibility

overseeing the company’s relationship with a vender, Cognizant,

because Thermo moved the services that Cognizant was providing

inhouse. (Id. at 35:11-21, 97:6-98:6.) New also lost her Shared

Services responsibility (for back-office services) in May. (Doc.

87-3 ¶ 17.) And sometime before July 2018, Thermo moved some

client-facing responsibilities from New’s project-management team

to a sales leader inhouse. (Docs. 86-46 at 73:1-21; 1-1 at 153.)

While it is undisputed New held these various duties,

responsibilities, and direct reports immediately after

acquisition, these progressive changes did not have an impact on

her employment conditions equivalent to “hiring, firing, failing

to promote, reassignment with significantly different

responsibilities, or a decision causing a significant change in

benefits.” Hoyle, 650 F.3d at 337 (citation omitted). New

retained her position as Group Vice President, Enterprise-Wide

Operations, received the same compensation, and maintained her

spot on the GLT until she left on October 5, 2018. (Doc. 86-46 at

32:3-32:15, 81:16-82:15, 195:11-15.) Additionally, none of these

changes had an impact on her Global Business Management function,

which took up at least 80% of her time.23 (Docs. 86-16; 87-14 at

10; 87-66 at 60:21-61:2; 86-43 at 48:15-49:1.).

ii. Job Architecture “Demotion”

Next, New contends the August 16 Job Architecture letter

23 While the court takes the facts in the light most favorable to New,

Thermo has maintained that these various changes in duties were “de

minimis” and occurred “organically” as PSG was “absorbed into Thermo”

following acquisition. (Docs. 87-14 at 8; 86-43 at 48:15-24.)

reduced her title and band level and demoted her. Although conduct

“short of ultimate employment decisions can constitute adverse

employment action,” there must be a “tangible effect on the terms

and conditions of employment.” James 368 F.3d at 375-77 (citations

omitted). Here, the Job Architecture letter had no practical

effect on New, as it is undisputed that her position, title, and

compensation did not change from the time the Job Architecture

letter was sent, to when it was made effective on October 1, 2018,

to when she resigned four days later, on October 5, 2018.24 (Doc.

86-46 at 32:3-32:15, 81:16-82:15.) Cf. Ajayi v. Aramark Business

Services, Inc., 336 F.3d 520, 531 (7th Cir. 2003) (holding an

employee could not establish a prima facie case of discriminatory

demotion under Title VII because “a memorandum stating that her

position was being eliminated and that she would be demoted two

weeks later” which never materialized was “[a]n unfulfilled

threat, which results in no material harm, [and] is not materially

adverse”); cf. James, 368 F.3d at 377 (“[A] poor performance

evaluation is actionable only where the employer subsequently uses

the evaluation as a basis to detrimentally alter the terms or

conditions of the recipient’s employment.” (citation omitted));

Dickerson v. SecTek, Inc., 238 F. Supp. 2d 66, 75 (D.D.C. 2002)

(“In sum, then, the effect of [plaintiff’s] demotion (if it can be

24 For these reasons, the fact that the Job Architecture letter was issued

in August and retracted as allegedly erroneously sent is immaterial.

called that) was simply never felt. It was a[] hypothetical

employment action, not an actual one, and thus does not satisfy

the requirements of the prima facie case.”).

Even if there were some future change in benefits between the

band levels, see James, 368 F.3d at 376 (“The question is whether

there was a change in the terms or conditions of [plaintiff’s]

employment which had a significant detrimental effect on

[plaintiff’s] opportunities for promotion or professional

development” and “speculation about the future adverse

consequences . . . may not rise to the level of a genuine dispute”

(citation omitted)), there is insufficient record evidence to

create a genuine dispute that New was ever a “band 13” at Thermo

so as to have been demoted. Banding did not exist at Patheon, and

the Job Architecture process was a method to attempt to slot

Patheon employees into the Thermo compensation structure. Vice

Presidents and Group Vice Presidents, such as New, were not offered

a “band 13” level in their offer letters upon acquisition, only

“Presidents,” who had a superior title. (Compare Docs 86-8, 86-

9, 86-10, 86-11, 86-12, 86-15, 86-35 with Docs. 86-13, 86-14.)

Band 13 level executives did not participate in the banding process

(see Doc. 87-62 at 98:2-23), and other than the levels which were

assigned early, banding did not occur until the Job Architecture

process was completed and implemented on October 1, 2018. (Doc.

90-12 at 12:20-13:25.) The record reflects that New was considered

a band 12 during the Job Architecture process. (See Doc. 87-34.)

New also testified that Utiger (a president and band level 13) was

not a “peer” because he was a different band level, among other

reasons. (Doc. 87-66 at 181:23-182:6, 183:17-22.)

New cites two things for her claim she was a band 13 employee

and thus demoted in the Job Architecture process. First, she says

that before the merger, in June or July of 2017, Thermo’s Van

Walsum told her she would be a band 13. (Id. at 172:21-173:21.)

Specifically, she says, Van Walsum explained that band 13 was

“where most of the direct reports at this level to a business

leader like Michel [Lagarde] are.” (Id.) Before getting to the

merit of the alleged oral statement, it is notable that it is

inadmissible to determine the terms of New’s employment. See

Lassiter v. Bank of North Carolina, 551 S.E.2d 920, 923 (N.C. Ct.

App. 2001) (“The parol evidence rule prohibits the admission of

parol evidence to vary, add to, or contradict a written instrument

intended to be the final integration of the transaction.” (citation

omitted)). And New’s fraud claim based on this very allegation

(Count VII) was previously dismissed without prejudice, pursuant

to Federal Rule of Civil Procedure 9(b), and has not been

realleged. (Doc. 13 at 20-24.) Even assuming its truth, however,

this alleged statement fails to support her claim as it was

allegedly made before Negron was put in place between New and

Lagarde in December 2017, such that New thereafter no longer

reported directly to Lagarde.

The facially closer question is New’s citation to Negron’s

deposition testimony where he stated that a band 12 would be a

reduction in band and title for New. (Doc 87-65 at 81:13-18.)

But on closer inspection this is insufficient to create a genuine

dispute of a material fact for several reasons. First, there is

no basis in the record that Negron had any foundation to draw this

conclusion. He admittedly was not involved in the Job Architecture

banding process or familiar with Thermo’s banding system for New

and other Group Vice Presidents. (Id. at 81:2-11, 199:2-15; see

Docs. 87-33; 87-62 at 197:20-198:7.) Second, as noted, there is

no evidence that New had previously been assigned a band level at

Thermo from which she would be demoted. (See, e.g., Docs. 87-34;

87-66 at 183:17-22.) In fact, the record reflects the opposite.

If New had been a band 13, it would make her Negron’s “peer” in

band level, which is contrary to the fact he was New’s direct

supervisor. (Docs. 86-13; 86-16.) Finally, New was not placed in

a band until the Job Architecture went into effect, and she

presents no evidence that anyone involved in the Job Architecture

process ever considered her a band 13. (Doc. 90-12 at 13:2-13.)

While Negron testified that the “vice president” title on the

August 16 letter would be a reduction, it is clear it does not

reflect the reality of what Thermo was implementing. The Job

Architecture slotted New as a “vice president” within the new

banding system, but there is no dispute that Thermo confirmed to

New on September 20th that “your job title of ‘Global Vice

President, Enterprise-Wide Operations’ will not change.” (Doc. 1-

1 at 150.)

Thus, while the court may not make credibility determinations

at this stage, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986), the contention New was ever a band 13 at Thermo is simply

unsupported by the record. See Scott v. Harris, 550 U.S. 372, 380

(2007) (“When opposing parties tell two different stories, one of

which is blatantly contradicted by the record, so that no

reasonable jury could believe it, a court should not adopt that

version of the facts for purposes of ruling on a motion for summary

judgment.”).

iii. BPD Offer

New also argues the BPD offer was a demotion because it would

require her to relocate (which she could not) and would result in

reductions in title, band level, reporting level, and compensation

(through the loss of a 2019 synergy bonus). (Doc. 87 at 15-16,

25.) However, as discussed above, the record reflects that New

was not terminated, and the BPD offer was just that – an offer.

New freely rejected the offer, and she was told she could remain

in her current position. See James 368 F.3d at 377 (an adverse

action must have a “tangible effect on the terms and conditions of

employment”); cf. Laird v. Fairfax Cty., Virginia, 978 F.3d 887,

895 (4th Cir. 2020) (holding, in the Americans with Disabilities

Act context, that “a transfer is not an adverse action when it is

voluntarily requested and agreed upon”); see also Pennington v.

City of Huntsville, 261 F.3d 1262, 1267 (11th Cir. 2001) (holding

that “the decision to reprimand or transfer an employee, if

rescinded before the employee suffers a tangible harm, is not an

adverse employment action”).

iv. Casper “Termination”

New also claims her alleged termination by Casper constitutes

an adverse employment action. To be sure, if New was in fact

terminated, it would constitute an adverse employment action.

Roberts v. Glenn Industrial Group, Inc., 998 F.3d 111, 123 (4th

Cir. 2021) (“‘Discharge’ from employment is one form of adverse

employment action”). However, for the reasons discussed in section

II.B.2. supra, her employment was never terminated. New resigned.

See Evans v. Davie Truckers, Inc., 769 F.2d 1012, 1014 (4th Cir.

1985) (A Title VII claim requires adverse employment action, which

does not occur where plaintiff voluntarily resigns); cf. Stone v.

University of Maryland Medical System Corp., 855 F.2d 167, 173

(4th Cir. 1988) (“If [an employee] resigned of his own free will

even though prompted to do so by events set in motion by his

employer, he relinquished his property interest voluntarily and

thus cannot establish that the state ‘deprived’ him of it within

the meaning of the due process clause.”).25

For these reasons, New has failed to present evidence of a

genuine dispute as to whether she suffered an adverse employment

action.

b. Inference of Unlawful Discrimination

The fourth element of a discrimination claim -- requiring

that plaintiffs plausibly plead an inference of discrimination --

is often satisfied by identification of a comparator. See, e.g.,

Okusami v. Maryland Department of Health & Mental Hygiene, No.

ELH-18-1701, 2020 WL 5500167, at *23–24 (D. Md. Sept. 11, 2020).

New is “‘not required as a matter of law to point to a similarly

situated . . . comparator in order to succeed’ on a discrimination

claim.” Laing v. Federal Express Corp., 703 F.3d 713, 720 (4th

Cir. 2013) (quoting Bryant v. Aiken Regional Medical Centers Inc.,

333 F.3d 536, 545-46 (4th Cir. 2003) (“[Plaintiff] is not required

as a matter of law to point to a similarly situated white

comparator in order to succeed on a race discrimination claim. We

would never hold, for example, that an employer who categorically

refused to hire black applicants would be insulated from judicial

25 Additionally, New claims her interaction with Utiger, and Thermo’s

response, constitutes a constructive discharge. The Fourth Circuit has

yet to expressly rule on the question of whether constructive discharge

constitutes an independent cause of action. See, e.g., Perkins v. Int’l

Paper Co., 936 F.3d 196, 203 n.1 (4th Cir. 2019) (noting lack of clarity

in the district court regarding whether constructive discharge was a

separate cause of action but declining to rule on the issue). For the

reasons discussed infra, New was not constructively discharged.

review because no white applicant had happened to apply for a

position during the time frame in question.” (citation omitted))).

However, where a plaintiff relies on comparator evidence to

establish circumstances giving rise to an inference of unlawful

discrimination, “[t]he similarity between comparators . . . must

be clearly established in order to be meaningful.” Lightner v.

City of Wilmington, North Carolina, 545 F.3d 260, 265 (4th Cir.

2008) (rejecting comparison evidence as “too loose” because

plaintiff and comparator held different job positions).

Here, even assuming New suffered an adverse employment

action, she fails to provide evidence that the adverse employment

action occurred under circumstances giving rise to an inference of

discrimination. New bases her sex discrimination claims on her

disparate treatment compared to male GLT colleagues. (Doc. 87-

26.) While a comparison between employees “will never involve

precisely the same set of work-related offenses occurring over the

same period of time and under the same set of circumstances,”

Haynes v. Waste Connections, Inc., 922 F.3d 219, 223 (4th Cir.

2019) (citation omitted), if a plaintiff “seeks to establish a

prima facie case of . . . discrimination by pointing to” a

comparator, “[t]he similarity between comparators . . . must be

clearly established in order to be meaningful.” Lightner, 545

F.3d at 265. Overall, “[c]ourts must look at all relevant factors

in determining whether . . . employees are in fact similarly

situated.” Robinson v. Volvo Group North America, LLC, 65 F. Supp.

3d 458, 463 (M.D.N.C. 2014). The inquiry is whether the would-be

comparator’s commonalities are such that, taken together with the

other prima facie evidence, a jury could reach an inference of

discrimination. See Ajayi, 336 F.3d at 531–32 (declining to

consider supervisory employee and nonsupervisory employee as

similarly situated); Pense v. Maryland Department of Public Safety

& Correctional Services, No. PWG-17-1791, 2020 WL 5946574, at *3

(D. Md. Oct. 7, 2020) (“The purpose of the similarly situated

requirement is to eliminate confounding variables, such as

differing roles, performance histories, or decision-making

personnel.” (citation omitted)).

New claims she was “treated differently from her male GLT

colleagues” as “she was the only GLT member not directly reporting

to Lagarde,” her “male colleagues did not have the same type of

conflicts with [fellow GLT member] Utiger,” she was “the sole GLT

member to receive a [Job Architecture] letter . . . demot[ing]

her,” and no fellow GLT member was “given the ultimatum [she]

received: relocate for a lesser position or hit the road.” (Doc.

87 at 26.) In response, Thermo argues that New “does not point to

any similarly-situated male [Group Vice President] who was treated

differently.” (Doc. 90 at 3.)

New’s claim presupposes the status of “GLT member” as

sufficient to meet the comparator requirement. However, while the

other GLT members were males and thus outside the protected class

(Doc. 87-62 at 187:14-17), the record indicates that such

comparison is “too loose.” Lightner, 545 F.3d at 265. As New

testified in her deposition, members of the GLT are not

sufficiently similar to be considered “peers” in many key respects.

(See Doc. 87-66 at 181:10-14.) Members may be “peers” on the GLT

but have different band levels, job titles, and reporting levels,

and they receive various levels of compensation,26 perform diverse

functions, and bear different levels of responsibility in the

organization. (Id. at 183:10-22; see also Doc. 87 at 5 n.38.)

New has not presented evidence of any specific male GLT member

with whom to compare her treatment, such as a comparator that was

also a Group Vice President with a similar job function and

reporting level. Therefore, the court finds there are too many

variables to fairly compare “GLT members” generally to allow a

jury to reach an inference of discrimination.

For these reasons, New has failed to present evidence of a

genuine dispute as to whether she received different treatment

from similarly situated employees outside the protected class.

c. Thermo’s Proffered Legitimate, Non-

Discriminatory Reasons

Even assuming New was successful in establishing her prima

26 New was one of the highest compensated Group Vice Presidents on the

GLT. (See Docs. 86-33; 86-35.)

facie case of discrimination, the burden would then shift to Thermo

to articulate some legitimate, non-discriminatory reason for each

of the asserted adverse employment actions. McDonnell Douglas,

411 U.S. at 807. Thermo has met this burden.

First, New complains she was “excluded” from Quarterly

Business Reviews. (Doc. 87 at 30.) As the court has noted, Thermo

has presented evidence that she was merely moved to remote

attendance with the vast majority of other attendees for logistical

reasons. (Docs. 87-63 at 41:18-21 (Lagarde noting attendance

needed to be cut back because “there were too many people”); 87-

66 at 211:10-23.)

New also complains she was removed from M&A and the Alster

acquisition project, but (as also discussed above) Thermo has

produced evidence showing mergers and acquisitions was not one of

New’s core business management functions, she was not on Thermo’s

M&A team, and her work on the Alster acquisition was a mere

knowledge transfer from her previous involvement. (Docs. 86-44 at

147:16-148:7; 86-46 at 58:19-59:3, 71:10-15.)

Next, New contends that her role was “diminish[ed]” through

the removal from various integration duties, client-facing

responsibilities, and employees. (Doc. 87 at 25.) However, Thermo

has produced evidence that such duties and responsibilities were

moved inhouse as Patheon was becoming fully integrated into Thermo,

and that they did not impact New’s chief Global Business Management

function. (See, e.g., Docs. 87-14 at 8, 14; 90-11 at 37:6-39:25;

87-63 at 48:15-49:1.)

New complains that her job was “identified . . . as one to be

eliminated” under the Job Architecture. (Doc. 87 at 30.) Thermo

has produced evidence that the Job Architecture program was a

company-wide cost-cutting measure, which identified and assessed

the positions of multiple executives and GLT members as part of

the integration of PSG into Thermo, and there is no evidence that

New was treated adversely compared to similar executives. Thus,

Thermo has articulated a legitimate, nondiscriminatory reason for

eventually eliminating New’s position following the Job

Architecture process or purportedly “demoting” her position.27 See

Atkinson v. Food Lion, LLC, 433 F. Supp. 2d 628, 634-35 (M.D.N.C.

2005), aff’d, 173 F. App’x 248 (4th Cir. 2006) (finding that the

employer’s proffered reason for the plaintiff’s termination, that

the plaintiff’s department was eliminated as part of cost-cutting

efforts, was a legitimate business reason); Bennett v. Charles

County Public Schools, No. AW-04-1501, 2006 WL 4738662, at *3 (D.

Md. May 23, 2006), aff’d, 223 F. App’x 203 (4th Cir. 2007) (“By

averring that its wastewater plants were reaching the end of their

useful life expectancies, and that it made business sense to

27 At the hearing on the present motion, Thermo noted, and New did not

dispute, that Thermo did not eliminate New’s job for over a year and a

half after New resigned.

eliminate some plants, place others with modern facilities, and

retain an independent contractor to oversee the plants that

remained, Defendant has met its burden of stating a legitimate,

nondiscriminatory reason for its employment decision.”).

As for New’s contention that Thermo “pushed the BPD job even

though they understood that New could not relocate” and that it

was a demotion in title, compensation, and reporting level (Doc.

87 at 30), Thermo has produced evidence that the BPD offer was

meant to reflect New’s high potential in the company and Thermo’s

desire to meet her career goal of running a business unit during

the Human Resources Review process. Put another way, there are

only so many jobs running a business unit available in any

corporate organization, and Thermo identified one for New based on

an anticipated acquisition. See supra I.A.4. Thermo has also

demonstrated that the position did not require relocation until a

year after the effective date in an effort to mitigate her

concerns. Thus, Thermo has articulated a legitimate,

nondiscriminatory reason for offering her the BPD role.

Finally, as for the claim that Casper terminated New’s

employment, Thermo has provided ample evidence that not only did

he not do so, but he was merely responding to New’s assertions,

including those made through her legal counsel on seeking a

departure from the company based on her asserted “Good Reason”

bases of her Employment Agreement, that she wanted to run a

business unit. Thermo has noted that other than the BPD role, it

had no other available job for her in the organization meeting her

desires and that if she was not interested in that offer, she

should coordinate with Lagarde and Jewett on her intended

departure. (Doc. 87-66 at 309:2-23.)

d. Pretext for Discrimination

Because Thermo has met its burden of production, New bears

the burden to establish pretext. To survive a summary judgment

motion, a plaintiff must develop some evidence on which a juror

could reasonably base a finding that discrimination motivated the

challenged employment action. Mackey v. Shalala, 360 F.3d 463,

469 (4th Cir. 2004). To establish a genuine factual dispute, a

plaintiff must show both that the reason offered by the defendant

was false and that discrimination was the real reason. Jiminez v.

Mary Washington College, 57 F.3d 369, 378 (4th Cir. 1995). A

plaintiff can prove pretext by showing that the employer’s

explanation is “unworthy of credence” or by offering other forms

of circumstantial evidence sufficiently probative of

discrimination. Walker v. Mod-U-Kraf Homes, LLC, 775 F.3d 202,

211 (4th Cir. 2014); Khoury v. Meserve, 268 F. Supp. 2d 600, 615

(D. Md. 2003) (“It is not enough for Plaintiff to allege pretext

based on her own view of the truth; in order to rebut Defendant’s

non-discriminatory reason, Plaintiff’s task is to proffer evidence

showing that Defendant’s stated reason was not the real reason for

its actions.”). In evaluating a plaintiff’s allegation of pretext,

“it is not a court’s province to decide whether an employer’s

reason for terminating an employee was wise, fair, or even correct,

ultimately, so long as it truly was the reason for the employee’s

[adverse employment action].” Walker, 775 F.3d at 211 (citation

omitted).

New argues that Thermo’s “reasons are false and pretextual.”

(Doc. 87 at 27-28.) But New’s response does not explain how this

is so. Rather, she reiterates her arguments why each action is

adverse. (See Doc 87 at 27-28.) New began reporting Utiger’s

behavior on a monthly basis beginning in January 2018. She does

not challenge Thermo’s explanation for her removal from the Alster

project, or that any of her responsibilities or direct reports

(including one who was removed because she was arrested) as Group

Vice President, Enterprise-Wide Operations were subsequently moved

as an “organic” consequence of Thermo fully integrating PSG.28 New

also does not present evidence that Thermo’s legitimate reason of

moving the vast majority of meeting attendees to remote attendance

is pretextual, other than conclusorily suggesting the timing in

the summer of 2018 must have been punitive. (Doc. 87 at 14-15.)

See Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.

28 Thermo’s decision during the Job Architecture process not to backfill

the Group Vice President, Enterprise-Wide Operations position when New

“move[d] into her next role” is consistent with this reason.

1987) (“Unsupported speculation is not sufficient to defeat a

summary judgment motion.”); see also Walker, 775 F.3d at 211 n.3

(noting that “timing is unlikely to defeat a nonretaliatory

explanation on its own”).

New argues that the Job Architecture was pretextual by noting

that while the August 16 Job Architecture letter was withdrawn

shortly thereafter, the substance was eventually implemented

unchanged on October 1, 2018. But this fails to respond to

Thermo’s non-discriminatory reason that Job Architecture was a

company-wide cost-cutting program that identified multiple

potential executive positions to be re-assessed. Thermo also

proffered evidence that there are “two titles” in its system, the

“business title” (chosen by the employee) and the “system title”

in the Job Architecture. Thus, even if New had not resigned, her

“business title” of Group Vice President, Enterprise-Wide

Operations would not have changed. (Docs. 90-10 at 236:14-22,

240:1-15; 87-62 at 241:1-242:13; 1-1 at 150.) She has also not

shown any other executive at her organizational level who was

banded at a level 13.

Additionally, New does not offer evidence challenging

Thermo’s goal of offering the BPD role to further her career goal

of running a business unit, other than by highlighting her

inability to relocate and Thermo’s failure to offer her another

position before she resigned. See Bryan v. Prince George’s County,

Maryland, No. DKC–10–2452, 2011 WL 2650759, at *6 (D. Md. July 5,

2011) (noting that, to demonstrate pretext, the employee “must

point to facts that render the employer’s reason so questionable

as to raise an inference of deceit”). Of note, she highlights the

“Soft Gels” role, offered to another female executive, as a

possible alterative position and evidence the BPD offer was

extended pretextually. (Docs. 87 at 28; 87-65 at 169:3-9.)

However, this would have been a demotion to band 11 (Doc. 87-33),

and New’s criteria to determine which role was preferable is based

on (1) her previous work related to “Soft Gels” at Patheon and (2)

her personal preference to remain in PSG. (See Doc. 87 at 12

n.128.) New “cannot establish pretext by relying on criteria of

her choosing when the employer based its decision on other

grounds.” Anderson v. Westinghouse Savannah River Co., 406 F.3d

248, 271 (4th Cir. 2005).

For these reasons, even if New could establish a prima facie

case, she cannot demonstrate that Thermo’s legitimate, non-

discriminatory reason for each of the asserted adverse employment

actions was pretextual. Thus, New has failed to meet her burden

to produce a genuine dispute of material fact that would

demonstrate discrimination. Thermo’s motion for summary judgment

on New’s discrimination claim will therefore be granted.

2. Hostile and Abusive Working Environment

New’s second Title VII claim alleges that Utiger’s actions

created a hostile and abusive working environment. Thermo moves

for summary judgment on the grounds that New failed to demonstrate

Utiger’s actions were based on sex, objectively severe or

pervasive, or caused her to be constructively discharged. (Doc.

86 at 11-16.)

A hostile work environment exists “[w]hen the workplace is

permeated with discriminatory intimidation, ridicule, and insult

that is sufficiently severe or pervasive to alter the conditions

of the victim’s employment and create an abusive working

environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21

(1993) (citations omitted). To establish a claim of hostile work

environment, a plaintiff must show that she experienced harassment

that was (1) unwelcome; (2) based on her protected status; (3)

sufficiently severe or pervasive to alter the conditions of

employment and create an abusive atmosphere; and (4) imputable to

the employer. See EEOC v. Fairbrook Medical Clinic, P.A., 609

F.3d 320, 327 (4th Cir. 2010); Jennings v. University of North

Carolina, 482 F.3d 686, 696 (4th Cir. 2007) (en banc) (noting that,

in reviewing hostile environment claims, “[a]ll the circumstances

are examined . . . [and] [e]vidence of a general atmosphere of

hostility toward those of the plaintiff’s gender is considered in

the examination of all the circumstances” (citations omitted)).

Here, the first and fourth elements are clearly met because

New would discuss the “harassment” from Utiger “at least on a

monthly basis” with multiple Thermo executives, including Lagarde,

Negron, Jewett, and with Human Resources employees. (Doc. 87-66

at 44:12-45:17, 117:23-118:11.) The question is whether New has

made out a prima facie case that the alleged conduct was based on

her sex and was severe or pervasive so as to constitute a basis

upon which a reasonable jury could determine that Thermo had a

hostile work environment.

a. Based on Sex

For the second element, New argues Utiger’s conduct

demonstrated general hostility toward women. See Oncale v.

Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998) (“A trier

of fact might reasonably find such discrimination, for example, if

a female victim is harassed in such sex-specific and derogatory

terms . . . as to make it clear that the harasser is motivated by

general hostility to the presence of women in the workplace.”).

Viewed in the light most favorable to New, the record supports

that she was subjected to rude, petty, and abrasive behavior from

Utiger. However, there is little evidence of behavior that is

facially related to her sex. The vast majority of New’s complaints

reflect a contentious business relationship with Utiger, who was

known as a “direct” and “results oriented leader,” based on his

opinion of her performance and the business management function.

(Docs. 86-39 at 35:2-18; 86-43 at 247:21-248:7; 86-48 at 67:16-

21.) Utiger had “contentious conversations” concerning his “very

strong position” of the business management function not only with

New, but also with Lagarde and Negron. (Docs. 86-45 at 121:14-

122:14; 86-43 at 187:15-22.)

New proffers evidence of Utiger’s behavior toward other women

to demonstrate general hostility toward women.29 While “the primary

focus in the hostile work environment analysis is on the

plaintiff’s experience, evidence of how others were treated in the

same workplace can be relevant to a hostile work environment

claim.” Perkins v. International Paper Co., 936 F.3d 196, 209-10

(4th Cir. 2019). Here, the record shows that Utiger’s abrasive

behavior was largely indiscriminately directed to other Thermo

employees of both sexes, as female employees considered him

“incredibly difficult” for both men and women to work with if he

believed his high standards were not being met. (Docs. 86-42 at

296:14-22; 86-45 at 264:7-11). For example, Amanda Bosse testified

that Utiger “was pretty direct and equally difficult for . . . a

male led [business.]” (Doc. 86-39 at 35:2-18.) She also testified

that even though it “took a while” to get used to “his style,”

29 New relies on Utiger’s purported statement that he “never met a woman

that [he] liked.” (Docs. 87 at 31; 87-2 at 2.) While such a statement

could be admissible for proof of Utiger’s state of mind, Fed. R. Evid.

803(3), Thermo correctly objects to the use of the evidence as

inadmissible because of multiple levels of hearsay – Goodfellow allegedly

learned from Jewett who allegedly learned from Lagarde who allegedly

heard from Utiger (Doc. 90 at 8). See Maryland Highways Contractors

Ass’n, Inc. v. State of Md., 933 F.2d 1246, 1251 (4th Cir. 1991)

(“[H]earsay evidence, which is inadmissible at trial, cannot be

considered on a motion for summary judgment.”)

Bosse did not believe Utiger’s behavior was gender related. (Doc.

90-9 at 54:5-17, 64:3-17.) Similarly, Jillian Otto testified that

even though Utiger was clearly a “jerk[]” and “difficult to work

with,” his behavior was not based on her sex. (Doc. 90-14 at

115:22-116:5.) Furthermore, Toni Sweeney testified in her

deposition that she believed problems stemmed from Utiger’s

“dismissive and very demanding” demeanor, especially when “he was

not on board with an approach.” (Doc. 87-68 at 128:17-129:14.)

She noted that Utiger “wanted individuals on his team . . . to be

very direct . . . to create a natural tension” because “he felt it

would elevate the business.” (Id. at 77:5-10.) However, she

disagreed with his approach because she could be “just as

effective” without being “nasty.” (Id. at 77:5-25.)

Next, New points to the rumors that Utiger had on at least

two occasions told others that she was “the queen” and other women

were “princesses.” These isolated incidents occurred over the

course of a year -- once in “the fall of 2017” and again “in the

spring of 2018.” (Doc. 86-46 at 160:3-13.) Thermo points out

that there is no claim or evidence that Utiger ever uttered these

words to New.

Finally, New highlights Utiger “seeking to replace Held with

a man” (Doc. 87 at 33), his rejection of an internal female

candidate New proposed to replace Jillian Otto, and his comment

that the candidate “would be having children and could not do the

job” and its required travel. (Doc. 87-3 ¶ 15.) New proposes

that his comments about Otto’s potential replacement and his

recommendation of a man to fill Held’s position instead shows

animus against women in the workplace. (Docs. 87-8 ¶ 2; 87 at 9.)

Thermo responds that this inference is plainly contrary to Utiger’s

subsequent recommendation of Bosse - a woman - to be his eventual

successor because he viewed her as “the only one on the team that

could actually run the business” based on her “extensive experience

in business management” at multiple levels. (Doc. 90-15 at 173:1-

15.) However, even assuming that Utiger’s motivation for rejecting

Otto’s potential successor was avoiding someone who he felt “could

not do the job” which required travel (Doc. 87-3 ¶ 15), the basis

of his reasoning – that potentially having children might prevent

the female candidate from travelling – may reflect a prejudiced

view toward women. See, e.g., 42 U.S.C.A. § 2000e(k) (“The terms

‘because of sex’ or ‘on the basis of sex’ include, but are not

limited to, because of or on the basis of pregnancy, childbirth,

or related medical conditions.”); Woods v. City of Greensboro, 855

F.3d 639, 651 (4th Cir. 2017) (holding that “imposing unique

burdens or stereotypical expectations on an individual based on

her membership in a protected group is illicit discrimination,”

including the “stereotypical assumption that pregnant women will

eventually require substantial absences from work” (citation

omitted)).

The question is whether this conduct amounts to general

hostility toward women in the workplace, including New, or rather

relates to a professional disagreement over New’s job performance.

See Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 191 (4th

Cir. 2004) (holding a “hostile work environment claim fails because

it is based on professional frustrations, not personal racial

attack”); Adefila v. Select Specialty Hospital, 28 F. Supp. 3d

517, 525 (M.D.N.C. 2014) (holding that a “stray ‘[Nigerians are]

cannibals’ remark — even if considered by the court — cannot

transform a garden variety dispute between an employee and her

supervisor into a Title VII claim”). No doubt Utiger’s isolated

comments of “princess” and “queen” are based on sex, and his

assessment of a female replacement for Otto and recommendation of

a man to fill Held’s position may have been. While the remaining

comments and conduct attributable to Utiger are certainly rude,

petty, boorish, and abrasive, the court need not reach a firm

conclusion whether they also are based on sex because, for the

reasons that follow, New fails to demonstrate they are severe or

pervasive.

b. Severe or Pervasive

To satisfy the third element of a hostile work environment

claim, New must establish that Utiger’s behavior was sufficiently

severe or pervasive to alter the conditions of employment and

create an abusive atmosphere. New argues that Utiger’s conduct

was severe or pervasive due, in part, to his general hostility

toward women as demonstrated by his (1) recommendation of a man to

fill Held’s position; (2) “immediate” criticisms of Sweeney and

Otto despite never working with them before; (3) complaint of

“harsh” behavior from Sweeney, Otto, and Bosse; and (4) “rude and

adversarial” and “negative attitude toward [Otto].” (Doc. 87 at

32-34.) Additionally, she argues his “constant disparagement and

criticisms” -- such as calling New a “queen” and other women

“princesses,” and regularly telling people New had “no skills,”

and was “incompetent,” “unqualified,” and a “waste of resources”

-- created a “contentious” and “toxic” relationship that was

abusive. (Id. at 34.) Furthermore, she argues Utiger’s “abuse

impacted [her] work performance” because his criticisms were

“without justification” and were described by others as “one step

forward, two steps back,” “distracting,” “trivial,” and even a

“waste of time and resources.” (Id.) In response, Thermo argues

that Utiger’s “toxic” relationship with New concerning her job

performance, and his isolated statements referring to her as a

“queen” and other women as “princesses” behind her back, are

insufficient to establish an objectively abusive work environment.

(Doc. 90 at 7-8.)

Whether the environment is objectively hostile or abusive is

“judged from the perspective of a reasonable person in the

plaintiff’s position.” Oncale, 523 U.S. at 81. The ultimate

determination has both objective and subjective elements and is

made by examining the totality of the circumstances, which “may

include the frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably interferes with

an employee’s work performance.” Harris, 510 U.S. at 23 (noting

that “no single factor is” dispositive); see Perkins, 936 F.3d at

211 (while courts may “discuss[] the evidence offered by [a

plaintiff] in categories” they still must “consider the totality

of the plaintiff’s experiences in evaluating whether an

environment is severe or pervasive”)

Title VII was not intended to create a general workplace

civility code. See Jennings v. University of North Carolina, 482

F.3d 686, 717 (4th Cir. 2007) (Niemeyer, J., dissenting) (citing

Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)). As

such, it “does not provide a remedy for every instance of verbal

or physical harassment in the workplace.” Murray v. City of

Winston–Salem, 203 F. Supp. 2d 493, 499 (M.D.N.C. 2002) (quoting

Lissau v. Southern Food Service, Inc., 159 F.3d 177, 183 (4th Cir.

1998)). Plaintiffs must “clear a high bar in order to satisfy the

severe or pervasive test.” EEOC v. Sunbelt Rentals, Inc., 521

F.3d 306, 315 (4th Cir. 2008). “[S]imple teasing, offhand

comments, and isolated incidents (unless extremely serious) will

not amount to discriminatory changes in the terms and conditions

of employment.” Id. (quoting Faragher, 524 U.S. at 788). On

summary judgment, the court must “identify situations that a

reasonable jury might find to be so out of the ordinary as to meet

the severe or pervasive criterion.” Id. at 316. “The more severe

the harassment, the less pervasive it needs to be, and vice versa.”

Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 284 (4th Cir.

2015) (quoting Ayissi–Etoh v. Fannie Mae, 712 F.3d 572, 579 (D.C.

Cir. 2013) (Kavanaugh, J., concurring)).

As discussed above, New has established that those at Thermo

were subjected to rude, petty, and abrasive behavior from Utiger.

But such allegations fail to rise to an actionable level under

Title VII. See Evans v. International Paper Co., 936 F.3d 183,

192 (4th Cir. 2019) (“[R]ude treatment from coworkers, callous

behavior by one’s superiors, or a routine difference of opinion

and personality conflict with one’s supervisor are not actionable

under Title VII.”); Baqir v. Principi, 434 F.3d 733, 747 (4th Cir.

2006) (“[The plaintiff] merely complains of rude treatment by [his

colleagues] — conduct falling short of that required to sustain a

hostile work environment claim.”); Bass v. E.I. DuPont de Nemours

& Co., 324 F.3d 761, 765 (4th Cir. 2003) (holding that the

plaintiff did not state a hostile work environment claim despite

allegations of “callous behavior by her superiors”). New does not

allege any physically threatening conduct, unwanted touching, or

offensive sexist language used in her presence. See Boyer-Liberto,

786 F.3d at 277; Evans, 936 F.3d at 192 (“[I]ncidents that would

objectively give rise to bruised or wounded feelings will not on

that account satisfy the severe or pervasive standard.” (quoting

Sunbelt Rentals, Inc., 521 F.3d at 315)).

The record, when viewed in the light most favorable to New,

shows she encountered Utiger at business meetings a few times a

week beginning in September 2017 (Doc. 86-46 at 107:3-21). But

even New contends that Utiger did not interact with her enough to

have an educated opinion on her performance or the intricacies of

her position. (Doc. 87-66 at 131:13-23.) New first points to the

rumors she heard from other GLT members that Utiger had called her

“the queen,” and other women “princesses,” but these two isolated

incidents took place months apart over the course of over a year

and outside of New’s presence. See Perkins, 936 F.3d at 210

(noting that while “the evidence of racially offensive conduct

that [plaintiff] heard about second-hand should not be disregarded

simply because he did not witness it,” it “does not create a

genuine issue of material fact . . . because the statements are

remote in time relative to each other and to [plaintiff’s] decision

to leave [the employer]”).

New would also “usually” hear about Utiger’s insults about

her job performance second hand from others on the GLT, but Utiger

would tell her she was “incompetent,” had “no skills,” or “wasn’t

qualified” directly at least once a week. (Doc. 87-66 at 129:1-

14, 157:16-158:22.) These performance-related comments are at

worst rude, disrespectful, unpleasant, or even unprofessional but

fall far short of the frequent racial or sexually-demeaning

comments courts have found sufficient to give rise to an abusive

work environment. Compare EEOC v. Central Wholesalers, Inc., 573

F.3d 167, 175-77 (4th Cir. 2009) (finding alleged gender-based and

race-based harassment was sufficiently severe or pervasive where

co-workers referred to women as “b***hes” and a co-worker in a

cubicle next to the plaintiff had Playboy items, watched

pornography in her presence, had a pornographic screensaver, and

placed a screwdriver in a Halloween decoration in a sexual manner

more than once; and where co-workers frequently used racial

epithets, some directed at the plaintiff, and two co-workers “kept

blue-colored mop-head dolls in their offices which they had hanging

by nooses tied around the dolls’ necks”) and Spriggs v. Diamond

Auto Glass, 242 F.3d 179, 184-85 (4th Cir. 2001) (holding that

supervisor’s constant, even daily, use of racial epithets was

sufficiently severe or pervasive to survive summary judgment) and

Amirmokri v. Baltimore Gas & Electric Co., 60 F.3d 1126, 1131 (4th

Cir. 1995) (hostile work environment survived summary judgment

where Iranian plaintiff was “intentionally . . . embarrass[ed]”

with impossible tasks and called offensive names like “local

terrorist” on a daily basis) with Walker, 775 F.3d at 205-06, 210

(finding a “near-daily” barrage of targeted vulgarities persisting

for over a year, such as a male co-worker regularly grabbing his

crotch and saying “these nuts are looking for you”; referring to

the plaintiff as “fresh meat”; and suggesting that if another male

co-worker “want[ed] a blow job” he should go join the plaintiff

where she was working, to be “simply too close to that line for

summary judgment to be appropriate”) and Singleton v. Department

of Correctional Education, 115 F. App’x 119, 120-22 (4th Cir. 2004)

(unpublished) (affirming summary judgment where the harasser “made

offensive comments, showed [the plaintiff] unwanted attention that

made her uncomfortable, and continuously expressed a sexual

interest in her” for over a year “approximately four times a week,”

as “conduct that [the plaintiff] complains of, though boorish and

offensive, is more comparable to the kind of rude behavior,

teasing, and offhand comments that we have held are not

sufficiently severe and pervasive to constitute actionable sexual

harassment”) and Skipper v. Giant Food, Inc., 68 F. App’x 393, 399

(4th Cir. 2003) (unpublished) (no racially hostile work

environment where plaintiff was exposed to daily racist graffiti,

overheard white co-workers using racial slurs 13 times over four

years, and referred to by manager with a racial slur).30

Further, Utiger and New were both members of the GLT. It was

30 While the Fourth Circuit does not accord precedential value to its

unpublished opinions, it has noted that “they are entitled only to the

weight they generate by the persuasiveness of their reasoning.” See

Collins v. Pond Creek Mining Co., 468 F.3d 213, 219 (4th Cir. 2006)

(citation omitted).

in this “peer” context that Utiger made his comments to others and

to New about New’s job performance and her Business Management

function. (Doc. 87-66 at 158:23-159:4, 159:15-22.) Although

Utiger was her superior in many respects, he was not her supervisor

and he never managed her. (Id. at 131:13-20) Boyer-Liberto, 786

F.3d at 278 (“[A] supervisor’s power and authority invests his or

her harassing conduct with a particular threatening character.”

(quoting Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 763

(1998))); see Vance v. Ball State University, 570 U.S. 421, 424

(2013) (“[A]n employee is a ‘supervisor’ for purposes of vicarious

liability under Tide VII if he or she is empowered by the employer

to take tangible employment actions against the victim.”); Howard

v. Winter, 446 F.3d 559, 566 (4th Cir. 2006) (“The fact that

[defendant] was her superior in rank, however, [is] not enough to

show that he [is] her supervisor for purposes of Title VII.”). As

for Utiger’s comment of “queen,” it is true that infrequent uses

of gender or racially-charged language can establish a hostile

work environment if the offensive action was sufficiently severe.

See, e.g., Boyer–Liberto, 786 F.3d at 278, 280 (“[A] reasonable

jury could find that [a supervisor’s] two uses of the ‘porch

monkey’ epithet . . . were severe enough to engender a hostile

work environment.”). But here, unlike in Boyer–Liberto, Utiger is

not New’s supervisor, these comments were made outside of her

presence, and he did not use the equivalent of an explicit, odious

racial slur that would support the finding that the comment,

standing alone or in conjunction with the other conduct,

established a hostile work environment.

Finally, even crediting New’s characterization of Utiger’s

treatment as a whole as “abusive,” the record compels the

conclusion that while New’s relationship with Utiger may have been

“toxic,” he treated many (of both sexes) with whom he worked in a

similar manner. To be sure, no employee is required to endure

unlawful discrimination, and one who does should not be prejudiced

because of his or her willingness to tolerate it. But here New

continued to do her job well and remained on the GLT for over a

year despite her “toxic” relationship with Utiger. Moreover, New

authorized her counsel to send a Good Reason letter, and she

continued to communicate with Thermo to address her issues, in the

sincere hope that she would remain with the company. (See Doc. 1-

1 at 136, 139, 148, 152-54; see also Doc. 87-66 at 306:24-307:11

(New “thought very highly of” PSG and Thermo and “wanted to stay

and grow”).) Accordingly, regardless of how unpleasant Utiger may

have made the work environment, his conduct does not appear to

have unreasonably interfered with her work performance or desire

to remain a part of Thermo or PSG.31 See Bass, 324 F.3d at 765

31 It is notable that New’s argument that the BPD offer was an adverse

action is based in part on her claimed desire to remain in PSG despite

Utiger’s behavior. See supra II.C.1.d.

(“The words ‘hostile work environment’ are not talismanic, for

they are but a legal conclusion[.]”).

For these reasons, New has failed to present evidence of a

genuine dispute that Utiger’s conduct was sufficiently severe or

pervasive to support a claim of hostile work environment. Thermo’s

motion for summary judgment as to New’s hostile work environment

claim will therefore be granted.

c. Constructive Discharge

New also contends that Utiger’s alleged unlawful conduct

caused her to resign. Thermo responds that she has failed to

present evidence that a reasonable person would have felt compelled

to resign and thus be constructively discharged.

To establish constructive discharge, New must show “(1) the

deliberateness of [Thermo’]s actions, motivated by [sexist] bias,

and (2) the objective intolerability of the working conditions.”

Freeman v. Dal-Tile Corp., 750 F.3d 413, 425 (4th Cir. 2014)

(citation omitted). Mere “dissatisfaction with work assignments,

a feeling of being unfairly criticized, or difficult or unpleasant

working conditions are not so intolerable as to compel a reasonable

person to resign.” Honor, 383 F.3d at 187 (citation omitted); see

Evans, 936 F.3d at 193 (noting that constructive discharge requires

“something more” than a hostile work environment). “To establish

a constructive discharge claim, a plaintiff must show ‘that [s]he

was discriminated against by h[er] employer to the point where a

reasonable person in h[er] position would have felt compelled to

resign.’” Evans, 936 F.3d at 193 (quoting Green v. Brennan, 136

S. Ct. 1769, 1777 (2016) (noting that “difficult or unpleasant

working conditions, without more, are not so intolerable as to

compel a reasonable person to resign”)).

Here, as New has not demonstrated she was subjected to a

hostile work environment, “it necessarily follows that [s]he

cannot show constructive discharge.” Perkins, 936 F.3d at 212.

While Utiger’s behavior toward New was rude, boorish, and

insensitive, it was not “to the point where a reasonable person in

her position would have felt compelled to resign.” Evans, 936

F.3d at 193 (citation omitted); Williams v. Giant Food Inc., 370

F.3d 423, 434 (4th Cir. 2004) (concluding allegations that

plaintiff’s “supervisors yelled at her, told her she was a poor

manager and gave her poor evaluations, chastised her in front of

customers, and once required her to work with an injured back”

failed to establish “the objectively intolerable working

conditions necessary to prove a constructive discharge”); Matvia

v. Bald Head Island Management, Inc., 259 F.3d 261, 272-73 (4th

Cir. 2001) (co-worker ostracism, denial of a management position,

and mandatory counseling for turning in an inaccurate time card

would not have compelled a reasonable person to resign); Carter v.

Ball, 33 F.3d 450, 459 (4th Cir. 1994) (noting that even a “slight

decrease in pay coupled with some loss of supervisory

responsibilities is insufficient evidence of constructive

discharge” (citation omitted)).

Moreover, it is significant that New did not work on Utiger’s

team or even report to him. Thus, her interactions with him were

more limited. This is reflected by the reality that her counsel

did not raise Utiger’s behavior with Thermo for weeks, and not

until counsel’s final communication before New’s October 5

separation (Doc. 1-1 at 152-54), and New does not cite Utiger’s

behavior as a reason for her departure in her deposition (Doc. 86-

46 at 186:22-187:11 (New claims she left at that time because she

believed she was “told to leave” by Casper and had “no choice but

to leave” once Jewett “took a significant period of time to get

back to [her]” about her severance)). Rather, New expressed a

desire to remain with Thermo and PSG, even though Utiger’s behavior

did not change before she left. (Id. at 304:13-16, 306:24-307:11.)

Cf. Evans, 936 F.3d at 194 (holding workplace conditions could not

objectively “rise to the level of intolerability required by

Supreme Court and Fourth Circuit precedent,” even though they were

“frustrating and unpleasant,” where plaintiff stated in a

resignation letter that she had a “great experience” that was “on

the whole, satisfying and productive”).

For these reasons, New has failed to present evidence of a

genuine dispute that she was constructively discharged.

3. Retaliation Claim

New’s final Title VII claim alleges that Thermo retaliated

against her for reporting Utiger’s actions throughout 2018.32

Thermo moves for summary judgment on the ground that New failed to

establish an adverse action or a causal link between her alleged

reporting and an adverse action. (Doc. 86 at 17.)

Employers are prohibited from “retaliating against an

employee for complaining about prior discrimination” or

participating in a protected activity. Foster, 787 F.3d at 249;

Baqir, 434 F.3d at 748, 747 n.16 (4th Cir. 2006) (citing 29 C.F.R.

§ 1614.101(b)). Title VII retaliation claims require a showing

that the action would not have happened “but-for” the plaintiff’s

protected activity. Nassar, 570 U.S. at 360. A plaintiff may

prove retaliation “either through direct and indirect evidence of

retaliatory animus, or through the burden–shifting framework of

McDonnell Douglas.” Foster, 787 F.3d at 249. To establish a

retaliation claim using direct and indirect evidence, a plaintiff

must present “evidence of conduct or statements that both reflect

directly the alleged discriminatory attitude and that bear

directly on the contested employment decision.” Jacobs v. North

Carolina Administrative Office of the Courts, 780 F.3d 562, 577–

78 (4th Cir. 2015) (citation omitted). Here, New has not presented

32 New’s EEOC Charge of Discrimination alleges discrimination beginning

in May 2018. (Doc 86-34.)

any direct or indirect evidence of conduct reflecting a

discriminatory attitude that would bear directly on her alleged

adverse actions.

To state a prima facie claim of retaliation under Title VII,

a plaintiff must establish (1) engagement in a protected activity;

(2) a materially adverse action; and (3) a causal connection

between the protected activity and the asserted materially adverse

action. Strothers v. City of Laurel, 895 F.3d 317, 327 (4th Cir.

2018); Hinton v. Virginia Union University, 185 F. Supp. 3d 807,

825–31 (E.D. Va. 2016) (citing Burlington Northern & Santa Fe Ry.

Co. v. White, 548 U.S. 53 (2006)). In the context of a retaliation

claim, a “protected activity” is an employee’s participation in an

ongoing investigation or proceeding under Title VII, or an

employee’s opposition to discriminatory practices in the

workplace. Laughlin v. Metropolitan Washington Airports

Authority, 149 F.3d 253, 259 (4th Cir. 1998); 42 U.S.C.A. § 2000e-

3(a). For the second element, the “‘materially adverse action’

standard is explicitly less restrictive than the ‘adverse

employment action’ standard for discrimination claims” because

while “‘adverse employment actions’ in the discrimination context

must ‘affect employment or alter the conditions of the workplace,’

a ‘materially adverse action’ in the retaliation context need not

impact conditions in the workplace to be actionable.” Hinton, 185

F. Supp. 3d at 826 (quoting White, 548 U.S. at 62); Cravey v. Hill,

No. 1:17-CV-1014, 2018 WL 4471732, *5 (M.D.N.C. Sept. 18, 2018).

Rather, a materially adverse action is one that “well might . . .

dissuade[ ] a reasonable worker from making or supporting a charge

of discrimination.” White, 548 U.S. at 68 (citation omitted).

Upon this showing, the burden shifts to the defendant to produce

evidence that its actions were not retaliatory. Foster, 787 F.3d

at 250 (4th Cir. 2015). If the defendant does so, then the

plaintiff must show by a preponderance of the evidence that the

defendant’s asserted grounds for taking its action were a pretext

for retaliation. Id. When proceeding under the burden shifting

framework, the “but for” standard is met by showing pretext and

that discrimination was the “real reason for the challenged

conduct.” Id. at 252 (citation omitted) (noting “Nassar does not

alter the legal standard for adjudicating a McDonnell Douglas

retaliation claim,” as “the McDonnell Douglas framework has long

demanded proof at the pretext stage that retaliation was a but-

for cause of a challenged adverse employment action”); accord

Guessous v. Fairview Property Investments, LLC, 828 F.3d 208, 216–

17 (4th Cir. 2016) (noting that the burden to show pretext merges

with plaintiff’s burden of persuading the court that plaintiff was

a victim of intentional discrimination).

Here, the court assumes without deciding that New has

sufficiently established evidence to support a prima facie case.

First, her alleged “monthly” complaints of gender harassment,

(Doc. 87-66 at 44:12-45:17, 117:23-118:11) constitute protected

activities under Title VII. Laughlin, 149 F.3d at 259. For the

second element, New contends five separate adverse actions: (1)

Lagarde diminished her responsibilities over time; (2) the August

16 Job Architecture Letter demoted her in band level and title;

(3) the BPD job was offered when Thermo knew she could not accept

it; (4) Casper terminated her when he told her to “work on her

exit”; and (5) she was constructively discharged. The court has

previously found that the Job Architecture letter did not demote

her,33 Casper’s comments cannot reasonably be construed to have

terminated her, and she was not constructively discharged.

Moreover, the BPD job offer, which would have met New’s desire to

run a business unit, cannot be considered an adverse action when

Thermo assured her that her position remained intact after she

rejected the position. (Doc. 1-1 at 150.) However, the court can

assume, without deciding, that a reasonable jury may conclude that

New suffered an adverse employment action through each of these,

including Lagarde’s diminution of her responsibilities over time.

33 Even if New believed the Job Architecture letter was at least a threat

to demote her, Thermo advised her at the time it had had been erroneously

sent and would have no impact. Though the Job Architecture results were

eventually implemented, New has not presented any evidence that she was

aware of, and thus reasonably could have been dissuaded by, either the

results sent to HR employees on September 7 (Doc. 87-52) or thereafter

while employed by Thermo. Cf. Perkins, 936 F.3d at 211 (“[I]nformation

about which a plaintiff is unaware cannot, by definition, be part of a

plaintiff’s work experience. Thus, such information is not proper for

consideration in evaluating the severe or pervasive requirement of a

hostile work environment claim.”).

And the at least “monthly” frequency of her complaints may suffice

to establish causation. Roberts v. Glenn Industrial Group, 998

F.3d 111, 123 (4th Cir. 2021); see Carter, 33 F.3d at 460 (noting

that close temporal proximity may be “strongly suggestive of

retaliatory motive and thus indirect proof of causation”).

The burden then shifts to Thermo to articulate a legitimate,

nondiscriminatory reason for each adverse employment action, and

this burden is one of production, not persuasion. Holland v.

Washington Homes, Inc., 487 F.3d 208, 214 (4th Cir. 2007). Here,

because the bases of liability are the same as those for her main

discrimination claim, the same analysis applies, see section

II.C.1.c supra, and Thermo has come forward with legitimate, non-

discriminatory reasons for each of the asserted adverse actions.

New therefore bears the burden of demonstrating evidence that

the employer’s stated reasons were “not its true reasons, but were

a pretext for discrimination.” Holland, 487 F.3d at 214 (citations

omitted). In this context, she must have some evidence that her

protected activity was a “but-for” cause of the adverse employment

action. Nassar, 570 U.S. at 358-61; Foster, 787 F.3d at 252

(noting the plaintiff must establish “both that the employer’s

reason was false and that retaliation was the real reason for the

challenged conduct” (citation omitted)).

This, New has failed to do. For the same reasons she failed

to show pretext on her main discrimination claim, she has failed

to come forward with any evidence here. Rather, she merely

articulates how each action is, in her view, adverse. There is

therefore no genuine dispute that Thermo took an adverse action

against her because she engaged in a protected activity.

Accordingly, Thermo’s motion for summary judgment on New’s

retaliation claim will be granted.

III. CONCLUSION

For the reasons stated,

IT IS THEREFORE ORDERED that the Defendant’s motion for

summary judgment is GRANTED and this action is DISMISSED WITH

PREJUDICE.

/s/ Thomas D. Schroeder

United States District Judge

March 15, 2022