HAIRGROVE v. CITY OF SALISBURY

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

LARISSA HARPER HAIRGROVE, )

)

Plaintiff, )

)

v. ) 1:21-CV-814

)

CITY OF SALISBURY, )

DOWNTOWN SALISBURY, INC., )

and LANE BAILEY, in his )

individual and official capacity, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Catherine C. Eagles, Chief District Judge.

The plaintiff Larissa Hairgrove has sued her former employer, the City of

Salisbury, the City Manager, Lane Bailey, and Downtown Salisbury, Inc., a non-profit

with which she worked while employed by the City. She asserts statutory and

constitutional claims of sex discrimination and retaliation, as well as wage and hour

violations under the state and federal law. Because she offers no evidence creating

disputed questions of material fact, the defendants’ motions for summary judgment will

be granted.

I. Applicable Legal Standard and the Unsigned “Declaration”

A court “shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists “if the evidence

is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In analyzing a summary judgment

motion, courts “construe all facts and reasonable inferences in the light most favorable to

the nonmoving party.” Bandy v. City of Salem, 59 F.4th 705, 709 (4th Cir. 2023).

The moving party has the initial burden of demonstrating the absence of any

material issue of fact; once the moving party meets its initial burden, the non-moving

party must come forward with evidence demonstrating the existence of a genuine issue of

material fact requiring a trial. Id. at 709–10; see also Celotex Corp. v. Catrett, 477 U.S.

317, 323–24 (1986). “[T]he nonmoving party must establish that a material fact is

genuinely disputed by, inter alia, citing to particular parts of the materials of record.”

United States v. 8.929 Acres of Land in Arlington Cnty., 36 F.4th 240, 252 (4th Cir.

2022) (cleaned up); see also Celotex Corp., 477 U.S. at 324 (non-movant must respond

to a motion for summary judgment with affidavits or other evidence).

Here, Ms. Hairgrove’s consolidated response brief repeatedly cites to an unsigned

and incomplete declaration, filed at Doc. 47. See, e.g., Doc. 65 at 1–5, 10, 14–16. Some

weeks ago, her counsel filed a motion to replace that declaration with a different

declaration, signed by Ms. Hairgrove1 under oath, because counsel had accidentally filed

a draft version. Doc. 56. The Court granted the request to replace the unsigned

declaration at Doc. 47 with a corrected and signed declaration at Doc. 56-2. See Doc. 57.

1 Some of the underlying documentation refers to the plaintiff as Larissa Harper. See, e.g.,

Doc. 47-1. She has since changed her name to Larissa Harper Hairgrove. For clarity, the Court

always refers to the plaintiff as Ms. Hairgrove.

Yet Ms. Hairgrove’s brief does not cite to the signed declaration at Doc. 56-2

once. See generally Doc. 65. The unsigned document is not identical to the signed

declaration. Compare, e.g., Doc. 47 at ¶ 3 (discussing pre-employment communications

and start date), with Doc. 56-2 at ¶ 3 (discussing history of Salisbury, North Carolina);

Doc. 47 at ¶ 84 (discussing an email Ms. Hairgrove sent Mr. Kyle on June 14, 2019),

with Doc. 56-2 at ¶ 84 (discussing events Ms. Hairgrove attended on November 23 and

24, 2018); Doc. 47 at ¶ 154 (discussing a question an attorney asked Ms. Hairgrove

during a deposition), with Doc. 56-2 at ¶ 154 (discussing a meeting with Mr. Kyle on

June 18, 2019). The specific citations in Ms. Hairgrove’s briefing match up with the

unsigned draft declaration and not the final signed declaration.

In evaluating a motion for summary judgment, the Court “need consider only the

cited materials.” Fed. R. Civ. P. 56(c)(3). “Rule 56 does not impose upon the district

court a duty to sift through the record in search of evidence to support a party’s

opposition to summary judgment.” Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)

(cleaned up); see also Cray Commc’ns, Inc. v. Novatel Comput. Sys., Inc., 33 F.3d 390,

396 (4th Cir. 1994) (noting that a district court would be “well within its discretion in

refusing to ferret out the facts that counsel had not bothered to excavate”); Hughes v. B/E

Aerospace, Inc., No. 12-CV-717, 2014 WL 906220, at *1 n.1 (M.D.N.C. Mar. 7, 2014)

(“A party should not expect a court to do the work that it elected not to do.”).

Here, the Court will disregard the unsigned draft declaration at Doc. 47 because

Ms. Hairgrove’s counsel explicitly asserted that it was a draft, see Doc. 56 at ¶ 3; because

it contains obvious mistakes, strike-throughs, blanks, questions, and internal notes, see,

e.g., Doc. 47 at ¶¶ 10, 30, 32, 51, 55, 58, 64–65, 79, 101, 109, 118; and because it was

not signed under oath. Id. at 112.

Nor will the Court examine the signed but uncited version at Doc. 56-2. That

version is over 150 pages long, its paragraph numbers do not consistently match up to the

unsigned cited document, and the Court has no duty to excavate any potentially material

facts from that massive exhibit.2

Otherwise, the Court will consider the evidence of record, including Ms.

Hairgrove’s deposition,3 and will view the evidence in the light most favorable to Ms.

Hairgrove.

II. Overview of Relevant Facts

In 2017, defendant Lane Bailey, City Manager, hired Ms. Hairgrove as the

Downtown Development Director for the city of Salisbury. See Doc. 38-1 at 24;4 Doc.

2 The Court has considered whether to give Ms. Hairgrove another opportunity to correct her

briefing. But she has already been given several chances to adequately brief the motions. See

Doc. 45 (granting plaintiff more time to file briefs even though she had not shown good cause);

Doc. 57 (accepting plaintiff’s late filings and allowing her to replace incorrect documents with

corrected versions); Doc. 61 (noting that plaintiff has “one last opportunity to present her case

within the confines of the rules”); Doc. 63 (striking erroneous declaration from the record and

allowing plaintiff a chance to file a consolidated response brief). It would not be fair to the

defendants, who would yet again have to respond. In its discretion, the Court declines to prolong

the proceedings.

3 In their first round of reply briefs, the defendants objected to consideration of the unsigned

declaration, contending that it was inconsistent with Ms. Hairgrove’s deposition. See Doc. 58 at

1–2, 6; Doc. 59 at 5 n.4; Doc. 60 at 2 n.2. The defendants are correct that declarations under

oath that differ from sworn deposition testimony are generally not considered, but the Court need

not address this concern, as it is not considering the unsigned declaration for other reasons.

4 The Court has used the pagination appended by the CM-ECF system for this and other

deposition cites, not the internal pagination used by the court reporters transcribing the

deposition.

47-1. Ms. Hairgrove’s employment began in October 2017. See Doc. 38-1 at 9; Doc. 38-

3; Doc. 38-4; Doc. 38-7 at 1.

Ms. Hairgrove reported to Zack Kyle, the Assistant City Manager. See Doc. 38-2

at 1; Doc. 47-4. Under an agreement between the City and Downtown Salisbury

Incorporated Nonprofit (DSI), Ms. Hairgrove worked closely with the DSI board and was

responsible for DSI’s office management and day-to-day operations. Doc. 38-2 at 1–2.

A. Concerns About Ms. Hairgrove’s Employment and Performance

Ms. Hairgrove’s tenure at the City was rocky. Throughout her employment, Mr.

Kyle and DSI Board members raised concerns about her job performance. In December

2018, Mr. Kyle issued a disciplinary action report to Ms. Hairgrove for “lateness” and

“failure to follow instructions” among other offenses. See Doc. 38-9. A few months later

in a performance review, Mr. Kyle gave her unsatisfactory ratings in four categories,

including “relationships” and “planning and organization.” Doc. 38-10. Her next

evaluation noted improvement but was only slightly better. See Doc. 38-11.

In early 2019, some DSI board members expressed concerns to Mr. Kyle about

Ms. Hairgrove’s performance, specifically her timeliness and efficiency, and they asked

that she be terminated. Doc. 38-13. In June 2019, Mr. Kyle issued a disciplinary action

report to Ms. Hairgrove for “lateness,” “failure to follow instructions,” and

“unsatisfactory work quality.” Doc. 38-12 at 1. He listed specific concerns with Ms.

Hairgrove’s responsiveness to emails that had resulted in an “audit” of her email inbox

and suspended her for three days for “neglect of duties.” Id.

Ms. Hairgrove, for her part, was also dissatisfied with her employment. “[F]rom

almost day one,” Ms. Hairgrove felt as though DSI and its board of directors were

“working against” her. Doc. 38-1 at 9. There was some uncertainty about the exact

contours of Ms. Hairgrove’s role, see Doc. 48 at ¶¶ 14, 28, 32, Doc. 47-19 at 4, 12–13,

18, and both the City and DSI expected her to spend almost all of her time on their

projects so that, as summarized by someone who worked for her, Ms. Hairgrove was

essentially “working two full-time jobs.” Doc. 50 at ¶ 14; see also Doc. 38-1 at 8–9, 24;

Doc. 50 at ¶¶ 5, 22, 24; Doc. 48 at ¶¶ 14, 25; Doc. 49 at ¶¶ 10, 23–24; Doc. 47-7 at 1.

She struggled to keep up with expectations, even while working on evenings and

weekends. See Doc. 47-21; Doc. 50 at ¶ 34; Doc. 47-17.

DSI Board members were dismissive or demeaning towards Ms. Hairgrove. Doc.

38-1 at 6, 8–10, 12, Doc. 47-8 at 2–3. Ms. Hairgrove felt that “at times,” Mr. Kyle

bullied her, Doc. 38-1 at 10–11, see also Doc. 50 at ¶ 16, and she and at least one other

employee believed that she was being subjected to treatment, such as email audits, that

other city department heads were not. See, e.g., Doc. 38-1 at 13; Doc. 50 at ¶ 16.

B. February 25, 2020 Board Meeting and Its Aftermath

On February 25, 2020, Ms. Hairgrove attended the DSI board’s regular monthly

meeting in possession of a City recording device, which was typically used in monthly

meetings to make it easier to write up the minutes. Doc. 38-14 at 1–2; Doc. 47-8 at 4. At

the end of the meeting, Board Chair Whitney Williams called a closed session without

any City staff to discuss the partnership between the City and DSI. Doc. 38-14 at 1; see

Doc. 47-8 at 1–2. Ms. Hairgrove left before the closed session, but she inadvertently left

the recording device in the meeting. Doc. 47-8 at 4.

Later that day, one of the DSI board members, Diane Young, emailed Ms.

Hairgrove and told her that she had the recording device. Id.; Doc. 38-14 at 2–3, 9. Ms.

Hairgrove told Ms. Young that she needed to get the device back that day and noted: “If

the recording was still running after City staff left, and you are worried about that

conversation being overheard, I’ll be glad to play the recording until we get to that point

and erase it in front of you.” Doc. 38-14 at 10. Ms. Young returned the device to Ms.

Hairgrove sometime in the next couple of days, purportedly without the recording of the

closed session. Id. at 5; Doc. 47-8 at 5.

On February 27, Ms. Hairgrove realized that the recording device still contained a

recording of the closed session. Doc. 47-8 at 5. Mr. Kyle “encouraged [Ms. Hairgrove]

to listen to the recording,” id., which she did. The next week, Mr. Kyle told Ms.

Williams that Ms. Hairgrove had listened to the recording. Id.

Ms. Williams and other DSI board members were upset. See generally Doc.

38-14. On March 17, they sent a letter to city officials about Ms. Hairgrove’s “deliberate

breach of the Board’s trust.” Id. at 1. The board members wrote that Ms. Hairgrove’s

“actions were dishonest” and “show[ed] a lack of integrity and good character.” Id. at 7.

They asserted that Ms. Hairgrove should have been suspended and that the board “ha[d]

been placed in a difficult situation of continuing to work with an Executive Director who

we hold in contempt.” Id. They did “not see a workable scenario where the existing

Board remains intact with the current Executive Director.” Id.

On April 12, Ms. Hairgrove submitted a written response, including a “timeline,

attachments, and statements” to “clear [her] name,” to Mr. Kyle and Brianna Price, who

worked in the City’s human resources department. See Doc. 47-8 at 1. She argued that

the closed session was illegal, id. at 1, 7–9, and complained of bullying, harassment, and

manipulation from DSI board members. Id. at 2–3.

C. Mr. Bailey’s Performance Review and Ms. Hairgrove’s Resignation

After the Board’s March 2020 complaints, Mr. Bailey required Ms. Hairgrove to

report directly to him. Doc. 42-12 at 1. He conducted a performance review of Ms.

Hairgrove and as part of that process “solicited performance evaluations from the DSI

board members that [were] not City employees.” Id.; see also Doc. 38-2 at 1 § 1.D.

Thirteen board members evaluated Ms. Hairgrove’s performance in several areas and in

total gave her “39 ratings of below expectations, 35 ratings of meets expectations, and

only 4 ratings of exceeds expectations.” Doc. 42-12 at 1 (cleaned up); see also Doc. 47-

19 (the evaluations). In other words, Ms. Hairgrove received just as many “below

expectations” ratings as she did “meets” or “exceeds expectations” ratings.

Some of the evaluations included positive comments on Ms. Hairgrove’s

performance, see, e.g., Doc. 47-19 at 13–15, 17, or referenced the difficulties Ms.

Hairgrove faced in her job for no fault of her own and the lack of clarity as to her role and

responsibilities. See, e.g., id. at 4, 12–15, 18, 42. But several of the board members

referenced the incident with the recording device in their evaluations. See, e.g., id. at 13,

31, 34–35. One board member wrote that “[h]aving to carry on with her as ED would

unquestionably lead to a series of resignations from the Board,” id. at 5, and another said

that “[t]he board has lost all confidence and trust and is no longer willing to work with

her.” Id. at 3.

Mr. Bailey also solicited evaluations about Ms. Hairgrove’s department from the

City’s Parks and Recreation, Communications, and Planning departments. Doc. 42-12 at

1. According to Mr. Bailey, those evaluations were similarly negative. Id.

In June 2020, Mr. Bailey met with Ms. Hairgrove to discuss his concerns with her

employment. See id. The next business day, June 22, he notified her by letter that he was

considering dismissing her “based on a pattern of performance deficiencies,” id., and

setting a meeting on June 24 to give Ms. Hairgrove an opportunity to respond before he

made a final decision about her employment. Id. at 3.

The next day, June 23, Ms. Hairgrove informed Mr. Bailey and Ms. Kennerly that

she was resigning from her position “due to a hostile work environment and work place

harassment.” Doc. 42-8 at 1; see Doc. 38-17; Doc. 38-1 at 2, 21–22. Mr. Bailey

acknowledged receipt of her resignation on June 24, 2020. Doc. 38-17. Ms. Hairgrove’s

position was temporarily filled by Latoya Price, who had worked with Ms. Hairgrove,

and then permanently filled by Sada Troutman. Doc. 38-1 at 10. Both are women.5

Additional facts will be discussed as they become relevant.

III. Discussion

A. Title VII and Section 1983

5 In her deposition, Ms. Hairgrove refers to each with “she/her” pronouns. See, e.g., Doc. 38-

1 at 10.

Ms. Hairgrove asserts three Title VII claims against the City and Mr. Bailey in his

official capacity.6 First, she claims she was subject to sex discrimination during her

employment and alleges both disparate treatment and a hostile work environment.

Second, she brings a retaliation claim, asserting that the City terminated her employment

in retaliation for her complaints of discrimination. Finally, she brings a retaliation claim

alleging that the City and Mr. Bailey sabotaged her employment with the Lexington

Tourism Authority because she filed an EEOC charge against them.

Ms. Hairgrove also brings a § 1983 claim against the City and Mr. Bailey in his

individual and official capacities for violations of equal protection. The Court discusses

the Title VII and § 1983 claims together, as Ms. Hairgrove did in the briefing; in this

context the law for each is the same. See Pitts v. Baltimore Police Dep’t, No. 22-CV-

1404, 2023 WL 3158705, at *6 n.7 (D. Md. Apr. 28, 2023) (noting that the elements to

establish a retaliation claim are the same under Title VII and § 1983); Gairola v. Va.

Dep’t of Gen. Servs., 753 F.2d 1281, 1285 (4th Cir. 1985) (“Under Title VII

and . . . § 1983, the elements of the required prima facie case are the same.”); Young v.

Hous. Auth. of Baltimore City, No. 21-CV-996, 2022 WL 4484221, at *8 (D. Md. Sept.

27, 2022) (collecting cases); Love-Lane v. Martin, 355 F.3d 766, 786 (4th Cir. 2004).

1. Sex Discrimination – Disparate Treatment

To make out a disparate treatment claim of sex discrimination under Title VII or

§ 1983, Ms. Hairgrove may either provide direct evidence of discrimination or rely on the

6 In 2022, the Court dismissed Ms. Hairgrove’s Title VII claims against DSI. Doc. 20.

McDonnell Douglas burden-shifting framework. See McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973); Sempowich v. Tactile Sys. Tech., Inc., 19 F.4th 643, 649 (4th

Cir. 2021); Love-Lane, 355 F.3d at 786; Brinston v. City of Easley, No. 20-CV-3660,

2022 WL 19404465, at *5 (D.S.C. Aug. 5, 2022). Ms. Hairgrove points to no direct

evidence of sex discrimination. See generally Doc. 65.

Under the McDonnell Douglas framework, Ms. Hairgrove has the initial burden to

establish a prima facie case of employment discrimination by showing that: “(1) she is a

member of a protected class; (2) her employer took an adverse action against her; (3) she

had been fulfilling her employer’s legitimate expectations at the time of the adverse

action; and (4) the adverse action occurred under circumstances that raise a reasonable

inference of unlawful discrimination, including because the employer left open the

position or replaced the plaintiff with someone outside the protected class.” Sempowich,

19 F.4th at 649–50.

To the extent Ms. Hairgrove is asserting a disparate treatment claim, it will be

dismissed, both because she has abandoned it and on the merits. While she has offered

evidence that she is a member of a protected class, she has not responded to defense

arguments directed specifically to the remaining elements. Nowhere in her brief does she

discuss whether she suffered an adverse action when she resigned, for example, or

whether she was fulfilling her employer’s legitimate expectations at the time.7 She has

7 The City and Mr. Bailey in his official capacity specifically argued that Ms. Hairgrove did

not meet her burden to establish the second, third, or fourth element. In her briefing directed to

both the Title VII and § 1983 claims, Doc. 65 at 37, she was silent as to these elements.

thus abandoned any such claim. See Stanley v. Wentworth Voluntary Fire Dep’t, Inc.,

No. 10-CV-380, 2011 WL 3665009, at *9 (M.D.N.C. Aug. 17, 2011) (Mag. J., opinion,

order, and recommendation); Barclay v. USAA Gen. Indem. Co., No. 20-CV-249, 2023

WL 2773540, at *2 (E.D.N.C. Feb. 23, 2023) (Mag., J., memorandum and

recommendation), adopted, 2023 WL 2733398 (E.D.N.C. Mar. 31, 2023).

On the merits, and in the alternative, the evidence summarized earlier establishes

that Ms. Hairgrove resigned and that she was not meeting her employer’s legitimate

expectations. She has failed to rebut that evidence with any evidence to the contrary.

Similarly, her position was filled by women, and she has pointed to no circumstances

raising a reasonable inference that her employment was terminated based on her sex.

2. Sex Discrimination – Hostile Work Environment

Title VII and § 1983 prohibit employers from “subjecting an employee to a hostile

work environment.” See Robinson v. Priority Auto. Huntersville, Inc., 70 F.4th 776, 781

(4th Cir. 2023). As the Fourth Circuit has recently explained, “[a] hostile work

environment exists only when the workplace is so permeated with discriminatory

intimidation, ridicule, and insult, that it would reasonably be perceived, and is perceived,

as hostile or abusive.” Id. (cleaned up). Courts “apply a four-part test to see if this

standard is met.” Id.

Under this test, Ms. Hairgrove must show (1) that she experienced unwelcome

harassment; (2) that the harassment was based on her sex; (3) that the harassment was so

“severe or pervasive” that it altered the conditions of her employment and created an

abusive work environment; and (4) that the harassment was imputable to her employer.

See id.; Okoli v. City of Baltimore, 648 F.3d 216, 220 (4th Cir. 2011). “While the first

element is subjective, the rest of the test is made up of objective components based on a

‘reasonable person’ standard.” Robinson, 70 F.4th at 781–82. And to determine whether

an environment was hostile “the Court must look at all 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.” Roberts v. Glenn Indus. Grp., Inc.,

998 F.3d 111, 118 (4th Cir. 2021) (cleaned up).

The evidence shows that Ms. Hairgrove regularly had disagreements with her

supervisor and various members of the DSI board. But Ms. Hairgrove points to no

evidence tending to prove that these disagreements were a result of harassment because

of her sex. It does not violate Title VII for an employer to have unreasonable

expectations of an employee.

Ms. Hairgrove claims that the City treated her differently than male department

heads, but she does not provide evidence to support this claim. See Doc. 65 at 6–7

(contending that Mr. Bailey and Mr. Kyle treated her differently than other male

department heads but with no citation to any evidence in support); id. at 20 (same); id. at

13–14 (same, citing to defendant’s responses to discovery requests). Conclusory

assertions and opinions are insufficient to create a disputed question of fact.8 See Fed. R.

8 In its review of the record, the Court did independently identify an isolated comment

arguably related to sex: a comment by a DSI board member that Ms. Hairgrove “needed to be

more like” a certain man who worked for the City and who wore “nice suits.” Doc. 38-1 at 10.

Civ. P. 56(c)(1)(A) (“A party asserting that a fact . . . is genuinely disputed must support

the assertion by . . . citing to particular parts of materials in the record”); see also Bouchat

v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (“A party

opposing a properly supported motion for summary judgment . . . must set forth specific

facts showing that there is a genuine issue for trial.” (cleaned up)); Thomas v. JPMorgan

Chase, No. 5-CV-1573, 2006 WL 8456581, at *3 (D. Md. June 15, 2006).

Nor could any reasonable jury find that the harassment was “so severe and

pervasive” that it altered the conditions of Ms. Hairgrove’s employment and created an

abusive work environment. The evidence shows that Mr. Kyle criticized Ms. Hairgrove’s

work performance on numerous occasions. Doc. 38-9; Doc. 38-10; Doc. 38-11; Doc.

38-12. It is undisputed that Ms. Hairgrove and Mr. Kyle’s relationship was strained and

that they often had disagreements about how Ms. Hairgrove was doing her job and how

the department was run. See, e.g., Doc. 47-10 at 2; Doc. 47-16; Doc. 38-8 at 4, 12; Doc.

38-1 at 7, 10–11, 16–17. And there is evidence in the record of heated exchanges

between Ms. Hairgrove and DSI board members, see Doc. 38-1 at 8–10, 12, and that Ms.

Hairgrove felt board members were harassing her, id. at 9, and treating her as a

“scapegoat,” id. at 6, or “punching bag.” Id. at 9.

This isolated incident does not rise to the level of a hostile work environment based on sex. See

Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (en banc) (noting that

“viable hostile work environment claims often involve repeated conduct,” but “an isolated

incident of harassment can amount to” discrimination “if that incident is extremely serious”); see

also Cuthbertson v. First Star Logistics, LLC, 638 F. Supp. 3d 581, 593 (W.D.N.C. Nov. 1,

2022).

But “[e]valuation and criticism of one’s work performance, while perhaps

unpleasant, is not abusive.” Holloway v. Maryland, 32 F.4th 293, 301 (4th Cir. 2022).

Ms. Hairgrove’s “disagreement with the decisions or management style of” Mr. Kyle

“does not rise to the level of a hostile workplace claim.” Valluzzi v. Azar, No. 18-CV-

3602, 2020 WL 128457, at *8 (D. Md. Jan. 10, 2020) (cleaned up); see also Evans v. Int’l

Paper Co., 936 F.3d 183, 192 (4th Cir. 2019) (“[C]allous behavior by one’s superiors[] or

a routine difference of opinion and personality conflict with one’s supervisor are not

actionable under Title VII.”). Nor does the DSI board’s “rudeness, anger, and hostility”

towards Ms. Hairgrove create a hostile workplace claim. Valluzzi, 2020 WL 128457, at

*9; see also EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008) (“[E]ven

incidents that would objectively give rise to bruised or wounded feelings will not on that

account satisfy the severe or pervasive standard.”); Evans, 936 F.3d at 192 (“[R]ude

treatment from coworkers . . . [is] not actionable under Title VII.”); Britt v. DeJoy, No.

20-1620, 2022 WL 4280495, at *3 (4th Cir. 2022) (per curiam) (unpublished).

Because no reasonable jury could find on the record in this case that Ms.

Hairgrove was subjected to “severe and pervasive” harassment because of her sex, the

defendants’ motion for summary judgment will be granted on these claims.

3. Retaliation – Termination of Employment

Ms. Hairgrove claims that she was retaliated against for complaining about a

hostile work environment. Ms. Hairgrove does not have direct evidence of retaliation

and is instead proceeding under the McDonnell Douglas burden-shifting framework. See

Walton v. Harker, 33 F.4th 165, 177 (4th Cir. 2022). Under this framework, Ms.

Hairgrove is required to show that “(1) she engaged in a protected activity, (2) the

employer acted adversely against her, and (3) there was a causal connection between the

protected activity and the asserted adverse action.” Id. (cleaned up); see also Sempowich,

19 F.4th at 653; Pitts, 2023 WL 3158705, at *6 n.7 (noting that the elements to establish

a retaliation claim are the same under Title VII and § 1983).

While Ms. Hairgrove has offered evidence that she complained about her work

environment, she has not offered any clear evidence that she “engaged in a protected

activity” by complaining about sex discrimination or a hostile work environment based

on her sex. See Doc. 38-1 at 10–11, 13; see generally Doc. 65. In her complaint, she

seems to identify her response letter to Mr. Kyle and Ms. Price about the recording

device incident as the protected activity. See Doc. 12 at ¶ 44. But nowhere in this letter,

Doc. 47-8, does she mention discrimination based on any protected status. See McIver v.

Bridgestone Ams., Inc., 42 F.4th 398, 411 (4th Cir. 2022) (holding that the plaintiff’s

failure to put her employer on notice of the plaintiff’s belief that unwelcome conduct was

on account of protected status defeated retaliation claim).

Even if she has shown protected activity, the City and Mr. Bailey are entitled to

summary judgment. Ms. Hairgrove claims several times that she was fired from her

employment, see Doc. 65 at 26–27, 33–35, but the uncontradicted evidence shows that

she resigned. See Doc. 38-17; Doc. 38-18; Doc. 38-1 at 2, 21–22. “[A]n employee’s

voluntary resignation does not, as a matter of law, constitute an adverse” action sufficient

to sustain a retaliation claim. High v. R & R Transp., Inc., 242 F. Supp. 3d 433, 446

(M.D.N.C. 2017); see, e.g., Holleman v. Colonial Heights Sch. Bd., 854 F. Supp. 2d 344,

355 (E.D. Va. 2012); Willis v. Cleveland Cnty., No. 18-CV-292, 2020 WL 3578297, at *8

(W.D.N.C. July 1, 2020).

To the extent that the complaint and briefing can be read as claiming that Ms.

Hairgrove was constructively discharged, the evidence is insufficient to show that her

working conditions became “so intolerable that a reasonable person” in her position

“would have felt compelled to resign.” Green v. Brennan, 578 U.S. 547, 555 (2016)

(cleaned up); see also Shomo v. Napa Mgmt. Servs. Corp., No. 22-CV-989, 2022 WL

17477066, at *3 (E.D. Va. Dec. 6, 2022). Choosing to resign when faced with

unsatisfactory work conditions and termination based on poor performance is not a

constructive discharge.

4. Retaliation – Sabotaging Future Employment

Ms. Hairgrove also claims that the City and Mr. Bailey sabotaged her employment

with the Lexington Tourism Authority (LTA) after she filed an EEOC charge of

discrimination against the City. Ms. Hairgrove does not have direct evidence of

retaliation and is again proceeding under the McDonnell Douglas burden-shifting

framework, discussed supra in Part III.A.3.

In the fall of 2020, Ms. Hairgrove started a new job as the Tourism Marketing

Coordinator at LTA. See Doc. 38-1 at 18–19; Doc. 42-9. She reported to Robin Bivens,

the Executive Director.

Shortly after starting with LTA, Ms. Hairgrove filed an EEOC charge of

discrimination against the City, see Doc. 38-20, and in April 2021 the charge was

mediated. See Doc. 38-1 at 18. At some unidentified point, Ms. Hairgrove informed Ms.

Bivens about the EEOC charge. See id. at 18–19; Doc. 38-15 at 3. Afterwards, Ms.

Bivens also heard about the lawsuit in what she characterized as meaningless gossip.

Doc. 38-15 at 3–4. Ms. Bivens informed some coworkers and spoke with an attorney

about any potential issues. Id.

Ms. Bivens announced that she was retiring from the Executive Director position

in June 2021. Id. at 5. The LTA board established a committee to hire a new Executive

Director. Id. at 4. Ms. Hairgrove, with Ms. Bivens’ encouragement, applied for the

position but did not get it. Id. at 5. In August of 2021, Ms. Hairgrove’s position was

eliminated from the LTA. Doc. 38-16.

Ms. Hairgrove claims that “there are genuine issues of material fact as to whether

the City is responsible for the . . . dissemination of the rumor in the Main Street

community which resulted in [her] losing her job for the Lexington Tourism Authority.”

Doc. 65 at 37. She offers no other argument and points to no evidence supporting this

claim. See generally id. She has not provided any direct evidence of retaliation nor met

her burden to establish a prima facie case of retaliation under the McDonnell-Douglas

framework. Summary judgment for the City and Mr. Bailey is appropriate.

B. First Amendment Claim

In her revised briefing, Ms. Hairgrove addresses a purported First Amendment

retaliation claim. Doc. 65 at 25–35. There is no such claim in her complaint, Doc. 12,

and a complaint cannot be amended in a brief. See S. Walk at Broadlands Homeowners

Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d.175, 184 (4th Cir. 2013) (“It is

well-established that parties cannot amend their complaints through briefing”).

Additionally, in making this argument Ms. Hairgrove violated a Court order.

Because her first set of response briefs violated the Local Rules and this Court’s orders,

see Doc. 61, Doc. 63, the Court struck them from the record and allowed Ms. Hairgrove a

chance to file a consolidated response brief. Doc. 63. The Court specifically ordered Ms.

Hairgrove to not “make any new argument” in this consolidated brief and to “limit her

arguments to those made in her original briefing.” Id. at 2. She had not made any First

Amendment argument in her original briefing. See Doc. 56-3; Doc. 52; Doc. 53.

Ms. Hairgrove has made no motion to amend her complaint or otherwise

persuasively explained why she should be able to assert the First Amendment claim for

the first time in a revised summary judgment brief. There being no First Amendment

claim pending, the Court need not address this claim.

C. Wage and Hour Violations

Ms. Hairgrove asserts North Carolina Wage and Hour Act (NCWHA) claims

against all defendants. She also asserts wage and hour violations of the federal Fair

Labor Standards Act (FLSA) against the City and Mr. Bailey in his official and

individual capacities.9 Because no reasonable jury could find, based on the evidence of

record, that Ms. Hairgrove was not an exempt executive employee, summary judgment

will be granted on these claims.

9 Ms. Hairgrove’s FLSA claims against DSI have been dismissed. Doc. 20.

Both the FLSA and the NCWHA10 require an employer to “pay each employee

who works longer than 40 hours in any workweek at a rate of not less than time and one

half of the regular rate of pay of the employee for those hours in excess of 40 per week.”

N.C. Gen. Stat. § 95-25.4(a); see 29 U.S.C. § 207(a)(1). But these provisions do not

apply to certain “executive” employees. See 29 U.S.C. § 213(a)(1); N.C. Gen. Stat. § 95-

25.14(b)(4) (adopting the definitions of the FLSA for this exemption). Under the FLSA,

an exempt executive employee is any employee:

(1) Compensated on a salary basis . . . at a rate of not less than $684

per week . . .;

(2) Whose primary duty is management of the enterprise in which the

employee is employed or of a customarily recognized department

or subdivision thereof;

(3) Who customarily and regularly directs the work of two or more

other employees; and

(4) Who has the authority to hire or fire other employees or whose

suggestions and recommendations as to the hiring, firing,

advancement, promotion or any other change of status of other

employees are given particular weight.

29 C.F.R. § 541.100(a).

This exception must be narrowly construed, and the defendants have the burden to

prove it applies. See Pugh v. Lindsay, 206 F.2d 43, 46 (4th Cir. 1953); Hantz v. Prospect

Mortg., LLC, 11 F. Supp. 3d 612, 619 (E.D. Va. 2014). “The question of how an

10 The NCWHA’s overtime provision does not apply to “any city, town, county, or

municipality, or any State or local agency or instrumentality of government.” N.C. Gen. Stat.

§ 95-25-14(d). As such, Ms. Hairgrove’s NCWHA claims against the City and Mr. Bailey in his

official capacity are likely barred. But these defendants did not raise this argument until their

reply brief, and, generally, parties are not permitted to raise new arguments in a reply brief. See

Tyndall v. Maynor, 288 F.R.D. 103, 108 (M.D.N.C. 2013). The Court need not resolve this issue

because, as explained infra, Ms. Hairgrove was correctly classified as an exempt employee.

employee spends [her] time is a question of fact, while the question of whether [her]

activities fall within an exemption is a question of law.” Hantz, 11 F. Supp. 3d at 619.

Ms. Hairgrove’s offer letter described her position as “salary/exempt.” Doc. 47-1

at 1. Shortly after beginning employment, Ms. Hairgrove received a copy of the City’s

Employee Handbook and received an orientation covering its contents, Doc. 38-4, Doc.

38-1 at 42, which included the policy that exempt employees would not receive overtime

compensation. Doc. 38-5 at 2; Doc. 38-1 at 42. Ms. Hairgrove also signed a statement of

understanding acknowledging that she had “been told the FLSA status of [her] position”

and that she understood “the overtime policy as it relate[d]” to her. Doc. 38-3.

Throughout her employment, she was paid on a salary basis and was not paid overtime

wages for hours she worked past 40 each week.

Ms. Hairgrove now contends that the defendants misclassified her and that she

was not exempt from the overtime provisions. She does not dispute that she met the first

two requirements of the exemption, see Doc. 65 at 41, and focuses her argument on

whether she “customarily and regularly direct[ed] the work of two or more other

employees” and had “the authority to hire or fire other employees” or if her

recommendations were given particular weight.

“The phrase ‘customarily and regularly’ means a frequency that must be greater

than occasional but which, of course, may be less than constant. Tasks or work

performed ‘customarily and regularly’ includes work normally and recurrently performed

every workweek; it does not include isolated or one-time tasks.” 29 C.F.R. § 541.701.

Ms. Hairgrove’s own testimony shows that she supervised two full-time staff members

“normally and recurrently” starting in October of 2018. See, e.g., Doc. 38-1 at 6 (Ms.

Hairgrove “had a staff” that she “would delegate some tasks to”); Doc. 42-7 at 6 (same);

Doc. 38-1 at 27 (Ms. Hairgrove “managed two full-time staff members”); Doc. 42-7 at 44

(same); Doc. 38-1 at 29 (stating she “finally” got “two full-time staff” members in

October 2018); Doc. 42-7 at 52 (same).

Ms. Hairgrove also had the ability to hire other employees or her suggestions and

recommendations during the hiring process were given “particular weight” on hiring

decisions. See 29 C.F.R. § 541.105 (providing guidance on “determin[ing] whether an

employee’s suggestions and recommendations are given ‘particular weight’”). She was

directly involved in the hiring of both full-time staff members she supervised. For

example, when hiring for the administrative staff member, Ms. Hairgrove was “given a

pool of candidates” to choose from, and she reviewed their resumes, interviewed the

candidates, and chose which applicant to hire. Doc. 42-7 at 45–46; Doc. 38-1 at 27–28.

She also prepared a public posting to solicit applicants for the marketing position,

reviewed all the applications, was involved in interviewing candidates, and was a part of

the panel that ultimately decided who to hire. Doc. 42-7 at 47–51; Doc. 38-1 at 28–29.

Ms. Hairgrove has not provided evidence sufficient to create a genuine dispute of

material fact as to whether she was an exempt executive employee. Summary judgment

for the defendants is proper.

Ms. Hairgrove contends that the defendants have waived this affirmative defense

by not pleading it in their answer. Doc. 65 at 37–40. But all defendants asserted in their

answers that Ms. Hairgrove was an exempt employee.” Doc. 18 at ¶ 19; Doc. 21 at ¶ 19.

And “an affirmative defense is not waived when it is first raised in a pre-trial dispositive

motion absent unfair surprise or prejudice to the plaintiff.” Morrissey v. CES Comput.

Enhancement Sys., Inc., No. 21-CV-899, 2023 WL 2432838, at *3 (D. Md. Mar. 9, 2023)

(cleaned up). Ms. Hairgrove has not demonstrated that allowing this defense causes her

prejudice or unfair surprise, as it has been obvious from the beginning of this case that

Ms. Hairgrove’s “exempt” status was at issue. See Doc. 12 at ¶¶ 19 (second amended

complaint alleging that she was “theoretically employed as an exempt department head”),

61 (alleging that the defendants willfully misclassified Ms. Hairgrove as exempt);

Morrissey, 2023 WL 2432838, at *3 (“[T]he very nature of this lawsuit, which involves a

retail employee operating under a seemingly commission-based employment agreement,

should have provided [the plaintiff] with ample notice that the bona fide commission

exemption would be at issue.”). There has been no waiver of this defense.

D. North Carolina Constitution

Ms. Hairgrove asserts a state common-law claim against the defendants for

violations of the North Carolina Constitution. She provides no briefing on this claim.

See generally Doc. 65. “Failure to address a defendant’s arguments for summary

judgment in an opposition brief is itself sufficient grounds to grant the defendant’s

motion.” Pang v. Adult Day Health, Inc., No. 19-CV-2283, 2022 WL 2869161, at *7 (D.

Md. July 21, 2022) (cleaned up); see also Stanley, 2011 WL 3665009, at *9; Barclay,

2023 WL 2773540, at *2. Ms. Hairgrove has abandoned this claim and not met her

burden to respond to the defendants’ showing, so summary judgment will be granted.

IV. Conclusion

Ms. Hairgrove has not made out a prima facie case of sex discrimination under

Title VII or § 1983. Nor has she met her burden to show that she was subjected to a

hostile work environment or that any defendant retaliated against her for complaining

about sex discrimination. Summary judgment will be granted to the defendants on her

Title VII and § 1983 claims. Her claim for violations of the FLSA and NCWHA also

cannot move forward because she was an exempt executive employee. Finally, Ms.

Hairgrove has abandoned her state constitutional claim by not responding to the

defendant’s briefing.

It is ORDERED that:

1. The defendants City of Salisbury and Lane Bailey’s motion for summary

judgment in his official capacity, Doc. 37, is GRANTED.

2. The defendant Lane Bailey’s motion for summary judgment in his individual

capacity, Doc. 39, is GRANTED.

3. The defendant Downtown Salisbury, Inc.’s motion for summary judgment,

Doc. 41, is GRANTED.

4. Judgment will be entered separately as time permits.

This the 14th day of September, 2023.

UNITED STATES ae ; JUDGE

24