# NEW V. THERMO FISHER SCIENTIFIC, INC.

> District Court, M.D. North Carolina · March 15, 2022

URL: https://www.frixlaw.com/law-library/cases/10253995

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** March 15, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10253995

## How later opinions describe it (automated extraction)

- 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
- holding a “hostile work environment claim fails because it is based on professional frustrations, not personal racial attack”
- noting that constructive discharge requires “something more” than a hostile work environment
- noting that there is an affirmative duty for “the trial judge to prevent factually unsupported claims and defenses from proceeding to trial” (citation omitted)

## Opinion text

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 (4

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253995. Public record. Not legal advice.