DIAL v. ROBESON COUNTY

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ANTHONY DIAL, )

)

Plaintiff, )

)

v. ) 1:20-cv-1135

)

ROBESON COUNTY, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Before this court is Defendant Robeson County’s Motion for

Summary Judgment. (Doc. 25.) For the following reasons, this

court will grant Defendant’s motion.

I. PROCEDURAL HISTORY

On May 16, 2017, Plaintiff Anthony Dial filed a charge of

employment discrimination alleging race and sex discrimination,

as well as retaliation, with the Equal Employment Opportunity

Commission (“EEOC”). (Ex. 1, 2017 EEOC Charge (Doc. 8-1).)1 On

December 10, 2019, Plaintiff filed another charge of employment

discrimination alleging race discrimination and retaliation with

the EEOC. (Ex. 2, 2019 EEOC Charge (Doc. 8-2).) These charges

1 All citations in this Memorandum Opinion and Order to

documents filed with the Court refer to the page numbers located

at the bottom righthand corner of the documents as they appear

on CM/ECF.

were timely submitted to the EEOC, and the EEOC issued Plaintiff

right to sue letters, pursuant to 42 U.S.C § 200(e)-(5)(f) et

seq. (See Compl. (Doc. 3) ¶¶ 12, 18, 22.) This court has

previously found that Plaintiff’s complaint incorporates by

reference both of Plaintiff’s charges of discrimination to the

EEOC. (See Mem. Op. and Order (Doc. 12) at 3.)

Plaintiff filed his complaint in Guilford County Superior

Court on November 12, 2020. (Compl. (Doc. 3) at 1.) Plaintiff

alleged the following causes of action against Robeson County

and Robeson County Department of Social Services: race and sex

discrimination in violation of Title VII for Plaintiff’s non-

promotion to Director of the Department of Social Services in

favor of a Black female; race discrimination in violation of

Title VII for Plaintiff’s non-promotion to Assistant County

Manager in favor of a Caucasian male; retaliation in violation

of Title VII; and violation of 42 U.S.C. §§ 1981 and 1983.

(Compl. (Doc. 3) ¶¶ 7–39.) Robeson County and Robeson County

Department of Social Services filed a Petition for Removal on

December 16, 2020. (Doc. 1.) They then moved to dismiss pursuant

to Fed. R. Civ. P. 12(b)(6). (Doc. 7.) This court granted the

motion as to Plaintiff’s claims for Title VII race and sex

discrimination in the non-promotion to Director of the

Department of Social Services, Plaintiff’s Title VII retaliation

claim, and Plaintiff’s §§ 1981 and 1983 claims. (See Mem. Op.

and Order (Doc. 12) at 34.) This court denied the motion to

dismiss as to Plaintiff’s claim of Title VII race discrimination

in the non-promotion to Assistant County Manager. (See id.)

Robeson County Department of Social Services was dismissed from

this action because of the lack of statutory authority to

proceed independently against the Department of Social Services,

(id. at 9–11); Robeson County is the sole remaining Defendant in

this action.

Defendant Robeson County (hereinafter, “Defendant”) filed a

motion for summary judgment on Plaintiff’s sole remaining claim

of Title VII race discrimination in the non-promotion to

Assistant County Manager, (Doc. 25), as well as a supporting

brief, (Br. in Supp. of Def. Robeson County’s Mot. for Summ. J.

(“Def.’s Br.”) (Doc. 27)). Plaintiff responded in opposition.

(Pl.’s Mem. in Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s Resp.”)

(Doc. 31).) Defendant replied. (Reply Br. in Supp. of Def.

Robeson County’s Mot. for Summ. J. (“Def.’s Reply”) (Doc. 33).)

Defendant’s motion for summary judgment, (Doc. 25), is ripe for

adjudication.

II. FACTUAL BACKGROUND

On a motion for summary judgment, the court views the

evidence in the light most favorable to Plaintiff as the

nonmoving party. See Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.

1994).

A. Plaintiff’s Background and Employment History

Plaintiff is a Native American male. (Compl. (Doc. 3) at 1;

Answer (Doc. 13) at 2.) Prior to working for Robeson County,

Plaintiff served in the Marine Corps from 1987 to 1993. (See Ex.

3, Excerpts from Tr. of Dep. of Anthony Dial (“Def.’s Excerpts

Dial Dep.”) (Doc. 25-3) at 6.) After leaving the Marine Corps,

Plaintiff worked for the North Carolina Department of

Corrections from 1994 to 2000 as a certified correctional

officer and a certified armorer. (See id. at 4, 8.) During that

time, Plaintiff attended night school at the Robeson County

Community College for two years, after which Plaintiff

transferred to University of North Carolina at Pembroke. (See

id. at 5.)

After receiving his degree in 2000, Plaintiff left his job

at the Department of Corrections to work for the Robeson County

Department of Social Services (“Robeson County DSS”). (See id.

at 9–10.) Plaintiff started as a foster care social worker in

Child Protective Services, and he was in that position from

approximately 2000 to 2002. (See id. at 10, 16–17.) In that

role, Plaintiff “supervised visits for children that were in

care[,] . . . offered services to their families[,] . . .

[assisted with family] reunification,” and “[i]f those

reunification efforts failed, . . . place[d] [children] with a

relative, or even adoption.” (Id. at 17.) It was not a

supervisory role. (See id. at 17–18.)

From approximately 2002 to 2005, Plaintiff worked as a

Child Protective Services investigator with an official job

title of Child Protective Services Social Worker III. (See id.

at 18.) In that role, Plaintiff “received referrals or

complaints . . . [regarding] children that were abused and

neglected”; Plaintiff “investigate[d] those complaints” and

“offer[ed] services.” (Id. at 18–19.) This was also not a

supervisory role. (See id. at 19.)

In 2005, Plaintiff became a foster care supervisor, and he

served in that role for approximately two and a half years. (See

id. at 19–20.) In that role, Plaintiff “managed caseloads,”

monitored the “state or federal aid received by [each] child,”

and “supervised LINKS,” which is a “program that helps children

transition” out of foster care. (Id. at 20–23.) Next, Plaintiff

worked as a supervisor in the investigative unit of Robeson

County DSS for approximately two and a half years. (See id. at

23–24.) Although Plaintiff’s positions from 2005 to present may

have included supervisory responsibilities, Plaintiff was

classified as a supervisor for approximately five years. (See

id.)

From 2009 until 2014, Plaintiff served as an income

maintenance administrator for Robeson County DSS, which involved

grantwriting for a new child advocacy unit, as well as meeting

with multidisciplinary stakeholders such as the DA’s office, law

enforcement, and social workers. (See id. at 24–26.) In this

position, Plaintiff supervised several program managers within

Robeson County DSS. (See id. at 29.)

From 2014 to the present, Plaintiff serves as program

manager for child support, serves as the hearing officer for

Medicaid fraud, and does outreach for Robeson County DSS at job

fairs. (See id. at 29–32). This is essentially a lateral

position to Plaintiff’s prior role as income maintenance

administrator, along with a few additional duties. (See id. at

31.) Finally, Plaintiff took on ad-hoc leadership duties during

Hurricanes Matthew and Florence as a shelter manager working

with the Red Cross. (See id. at 32–33.)

Outside of his work experience, Plaintiff is involved in

several community organizations. Plaintiff is the vice chair of

the Robeson House shelter in Lumberton, which is “an emergency

shelter for children ages seven to [sixteen].” (Ex. A, Pl. Dep.

Excerpts (“Pl.’s Excerpts Dial Dep.”) (Doc. 31-1) at 3.)

Plaintiff is also the vice chair of the Rape Crisis Center

Board. (Id. at 4) Plaintiff serves on the Clean and Green

Committee in Robeson County and is the watch commander for his

district’s community watch. (Id.) Plaintiff is a deacon at his

church. (Id.) Plaintiff is involved with the Domestic Violence

Task Force. (See id. at 5.) Finally, Plaintiff has recently been

involved with the Pembroke Lions Club. (See id. at 4.)

B. Assistant County Manager Position

Kellie Blue is the County Manager for Robeson County. (See

Decl. of Kellie Blue (“Blue Decl.”) (Doc. 28) at 1.) Blue was

appointed to this position by the Robeson County Board of

Commissioners pursuant to a four-year contract, and she began

this job on January 1, 2019. (See id.) Previously, she served as

Assistant County Manager and reported to the former County

Manager. (See id.) Both Blue and her predecessor as County

Manager are Native American. (See id.)

Robeson County typically has two Assistant County Managers,

each of whom oversee different departments on behalf of the

County Manager. (See id. at 2.) In Kellie Blue’s role as

Assistant County Manager immediately before her appointment to

County Manager, she oversaw “human services, the health

department, transportation, insurance and risk management,

emergency management services, communications, IT, claims, and

planning and zoning.” (Id.) The other Assistant County Manager —

Jason King — was responsible for “the County’s water and sewer

enterprises, building management, fleet management, veterans’

services, and human resources.” (Id.) It appears that the two

Assistant County Managers divide up Robeson County’s different

departments and oversee them independently of each other, with

each reporting to the County Manager. (See id.)

When Kellie Blue was appointed to County Manager, her

previous position as Assistant County Manager became vacant.

(See id.) Blue wanted to “fill the position as soon as possible

with someone who could ‘hit the ground running’ and would not

need extensive training, as [she] was very busy transitioning

into the County Manager role at the time.” (Id.)

Robeson County’s Human Resources Department posted the open

position on the Robeson County Employment Website on February

12, 2019. (See id. at 2; see also Ex. A, Job Posting for 2019

Assistant County Manager Position (Doc. 28-1).) The job

description included a list of essential job functions and

minimum qualifications. (See generally Ex. B, 2019 Job

Description for Assistant County Manager (“Job Description”)

(Doc. 28-2).) The minimum training and experience included:

Bachelor’s degree in Business/Public

Administration, or a related field; considerable

increasingly responsible experience in the

administration and management of local government

programs and personnel; or any equivalent combination

of training and experience which provides the required

skills, knowledge and abilities.

(Id. at 4 (emphasis added).) Essential job functions included,

inter alia:

Assists the County Manager in development of

policies and procedures pertaining to personnel,

capital improvement, fiscal control, construction

projects and public relations issues; serves as member

of County Manager’s management team, participating in

meetings and discussions to formulate and develop

planning on various issues pertaining to operations of

County government.

Oversees County capital improvement projects,

ensuring adherence to specified standards; confers

with department heads, supervisory boards, County

Commissioners, court officials, architects,

contractors, etc., to resolve disputes, as necessary.

Oversees, coordinates and administers various

personnel programs in accordance with local, state and

federal ordinances, statutes and laws; develops

amendments to local personnel ordinance, as necessary,

and presents recommendations to County Commissioners.

Represents the County in official capacities on

various regional and County boards and committees.

Assumes duties of County Manager in his/her

absence, ensuring adherence to established policies,

procedures and standards.

(Id. at 2.)

C. Selection Process

Robeson County’s Human Resources Department collected and

screened job applications, resulting in eight qualified

applicants being moved forward for interviews. (See Blue Decl.

(Doc. 28) at 3.) These candidates included Plaintiff and Shelton

Hill. (See id.) To assess the candidates, Blue prepared a list

of interview questions, as well as a budget exercise. (See id.)

Blue interviewed both Plaintiff and Hill “on or about Wednesday,

May 1, 2019.” (Id.) During the interview, Blue “followed the

script [of questions] for each . . . applicant.” (Ex. 1, Tr. of

Dep. of Kellie Blue (“Blue Dep.”) (Doc. 25-1) at 12.) Blue

testified that she had total discretion in selecting an

Assistant County Manager; the Robeson County Board of

Commissioners did not provide any input, solicited or

unsolicited, regarding candidates. (See id. at 6–8).

Ultimately, Shelton Hill, a Caucasian male, was selected

for the Assistant County Manager position. (See Ex. 2, Tr. of

Dep. of Shelton Hill (“Hill Dep.”) (Doc. 25-2) at 5.) Hill has a

high school diploma but not a bachelor’s degree. (See Appl. of

Shelton Hill for Assistant County Manager Position (“Hill Job

Appl.”) (Doc. 28-4) at 3, 8.) “Hill had a decade and a half of

management experience in one of the largest textile firms in

Robeson County, supervising over a hundred people.” (Blue Decl.

(Doc. 28) at 5-6.) After his private sector work, Hill moved to

the public sector. (See id. at 5.) “Hill worked for the Lumber

River Council of Governments for two years and the Department of

Transportation for a year.” (Id. at 5.) Hill then began working

for Robeson County, which altogether “gave him almost 20 years’

experience in public sector work directly related to the role he

was interviewing for.” (Id.) Hill “had worked in transportation,

human services, human resources, risk management, safety, and

inspections. . . . This included technical areas such as

obtaining Medicaid/Medicare and other grant reimbursements,

handling claims, and managing departments that provide important

services to the County’s residents.” (Id.) Hill had also

previously worked with Blue; she was his supervisor in his role

as “County Risk Manager/Safety Officer.” (See Hill Job Appl.

(Doc. 28-4) at 6.)

Blue testified that “when [she] considered the applicants,

[she] felt that Mr. Hill had the most relevant experience for

the position.” (Blue Decl. (Doc. 28) at 5.) Blue elaborated:

He had a broad . . . skill set that would be essential

to the manager’s office in an assistant manager role.

. . . He had worked in our human resource office,

handled risk management. That is a key . . . facet of

an assistant manager. . . . One of the other areas is

SEATS. He had worked in our regional transportation

department [and was] very familiar with . . . the

SEATS program.

(Blue Dep. (Doc. 25-1) at 14–15.) Although Hill did not have a

four-year college degree, Blue testified that either a college

degree or relevant work experience was necessary and that Hill’s

lack of a college degree was not a concern for Hill’s candidacy.

(See id. at 16–17.) She explained that “Hill’s prior experience

gave him a proven track record in the areas that the person

hired as Assistant County Manager would be expected to

supervise.” (Blue Decl. (Doc. 28) at 5.)

In contrast, regarding Plaintiff’s qualifications, Blue

testified that Plaintiff’s “concentration has been in one area,

and that is our DSS department, and then Mr. Hill had a broad

array . . . of experience [in] what we needed in the manager’s

office with some HR, risk management . . . .” (Blue Dep. (Doc.

25-1) at 20.)

D. Tom Taylor’s Alleged Involvement in the Selection

Process

Tom Taylor is an elected member of the Robeson County Board

of Commissioners. (See Ex. 5, Decl. of H.T. (“Tom”) Taylor, Jr.

(“Taylor Decl.”) (Doc. 25-5) at 1.) Taylor also owns and

operates a hardware store in Lumberton. (See id.)

Plaintiff alleges that County Commissioners, like Taylor,

have influence on Robeson County personnel decisions. (See Pl.’s

Resp. (Doc. 31) at 2–3, 8–9.) In support, Plaintiff cites the

unsworn and unsigned affidavit of Roger Oxendine, a former

Robeson County Commissioner. (See id. at 9; see also Aff. of

Roger Oxendine (Doc. 31-3) at 2.) Plaintiff also testified that

Taylor stated in a three-way phone conversation between Taylor,

Plaintiff, and Reese Oxendine (another Robeson County employee)

that “[we] would not have two Indians and [an] African-American

in administration. [We’d] have to have a White.” (Pl.’s Excerpts

Dial Dep. (Doc. 31-1) at 13–15 (cleaned up).) Taylor denies

making any such statement.2 (See Taylor Decl. (Doc. 25-5) at 2.)

Taylor also testified that he “never told Kellie Blue anything

about who she should hire for the [Assistant County Manager]

position.” (Id. at 3.)

Additionally, Plaintiff’s wife, Rhonda Dial, testified that

Taylor told her, in discussing the Assistant County Manager

position, “[t]hat is Shelton Hill’s job.” (See Ex. B, Aff. of

Rhonda Dial (Doc. 31-2) at 3.)

III. LEGAL STANDARD

Summary judgment is appropriate when “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex

Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). When reviewing a

summary judgment motion, the court must view all evidence in the

light most favorable to the nonmoving party. See Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 600–01

(1986). This court’s summary judgment inquiry is whether the

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

2 As will be explained infra Section IV.C.2, Taylor’s

alleged statement does not create a genuine issue of material

fact, even if admissible.

matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

251–52 (1986).

The moving party bears the initial burden of demonstrating

“that there is an absence of evidence to support the nonmoving

party’s case.” Celotex Corp., 477 U.S. at 325. If the “moving

party discharges its burden . . ., the nonmoving party then must

come forward with specific facts showing that there is a genuine

issue for trial.” McLean v. Patten Cmtys., Inc., 332 F.3d 714,

718–19 (4th Cir. 2003) (citing Matsushita Elec. Indus. Co, 475

U.S. at 586-87). Summary judgment should be granted “unless a

reasonable jury could return a verdict for the nonmoving party

on the evidence presented.” Id. at 719 (citing Liberty Lobby,

477 U.S. at 247–48).

IV. ANALYSIS

Plaintiff alleges a Title VII employment discrimination

claim against Defendant for failure to promote Plaintiff to

Assistant County Manager on the basis of race. (Compl. (Doc. 3)

at 2–3.) Plaintiff claims that the County Manager, Kellie Blue,

chose not to promote him to the position of Assistant County

Manager even though he was more qualified than Shelton Hill, the

Caucasian male ultimately hired for the position. (See id.)

Title VII makes it an unlawful employment practice for an

employer, including a state agency, “to discriminate against any

individual with respect to his compensation, terms, conditions,

or privileges of employment, because of such individual’s race.”

42 U.S.C. § 2000e–2(a)(1). A Title VII plaintiff may survive a

summary judgment motion through one of two avenues of proof. A

plaintiff may establish through direct or circumstantial

evidence that race, though not the sole reason, was a

“motivating factor” in the denial of a promotion. See Diamond v.

Colonial Life & Accident Ins., 416 F.3d 310, 318 (4th Cir.

2005). Alternatively, a plaintiff may use the burden-shifting

framework established by the Supreme Court in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). See id. Because the parties

proceed under the McDonnell Douglas framework in their

arguments, this court will proceed under the McDonnell Douglas

burden-shifting analysis. See generally Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (providing an

overview of the McDonnell Douglas burden-shifting framework).

Under McDonnell Douglas, a plaintiff must first establish a

prima facie case of discrimination. See id. at 142. If the

plaintiff establishes his prima facie case, the burden then

shifts to the employer to articulate a “legitimate,

nondiscriminatory reason” for its actions. See id. (internal

citations omitted). If the employer does so, the burden shifts

back to the plaintiff to present evidence that the employer’s

articulated reason was pretext for unlawful discrimination. See

id. at 143. The plaintiff bears the ultimate burden of

persuasion. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.

248, 253 (1981).

Here, although Plaintiff establishes a prima facie case of

discrimination, Defendant provides a legitimate, non-

discriminatory reason for promoting Hill over Plaintiff.

Further, Plaintiff does not demonstrate that Defendant’s

articulated reason was pretext for unlawful discrimination.

Thus, this court will grant Defendant’s motion for summary

judgment.

A. Plaintiff’s Prima Facie Case

Viewed in the light most favorable to Plaintiff, this court

finds that Plaintiff has established a prima facie case of race

discrimination in his non-promotion to Assistant County Manager.

To establish a prima facie case for discriminatory failure to

promote, a plaintiff must prove that he: (1) is a member of a

protected class; (2) applied for the position; (3) was qualified

for the position; and (4) was rejected under circumstances

giving rise to an inference of unlawful discrimination. See

Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1129 (4th

Cir. 1995). “The burden of establishing a prima facie case of

disparate treatment is not onerous. The plaintiff must prove by

a preponderance of the evidence that []he applied for an

available position for which []he was qualified, but was

rejected under circumstances which give rise to an inference of

unlawful discrimination.” Burdine, 450 U.S. at 253.

Here, neither party disputes that Plaintiff has established

the first two elements of a prima facie case. First, Plaintiff,

as a Native American, is a member of a protected class. (Compare

Def.’s Br. (Doc. 27) at 16, with Pl.’s Resp. (Doc. 31) at 4.)

Second, Plaintiff applied for the Assistant County Manager

Position. (Compare Def.’s Br. (Doc. 27) at 16, with Pl.’s Resp.

(Doc. 31) at 4.)

Further, Defendant concedes the third element, as Defendant

does not argue that Plaintiff was unqualified for the Assistant

County Manager Position, but rather, that Hill was more

qualified than Plaintiff. (See Def.’s Br. (Doc. 27) at 15–19.)

Blue’s Declaration also suggests that Plaintiff was qualified

for the position of Assistant County Manager, as Blue testified

that only qualified candidates advanced to the interview stage

of the selection process. (See Blue Decl. (Doc. 28) at 3 (“The

eight remaining, qualified applicants, including Anthony Dial

and Shelton Hill, were interviewed by me over the course of

several days.”).)

Finally, “[t]o satisfy the fourth prong, [Plaintiff] need

only show that the position was filled by a person not in the

protected class.” Weaks v. N.C. Dept. of Transp., 761 F. Supp.

2d 289, 298 (M.D.N.C. 2011); see also Carter v. Ball, 33 F.3d

450, 458 (4th Cir. 1994). The Assistant County Manager position

was filled by Shelton Hill, who is a Caucasian, (see Hill Dep.

(Doc. 25-2) at 5), so the position was filled by a person not in

a protected class.

However, “[m]ore recently, the Fourth Circuit has cast

doubt on [prima facie case analysis], stating that such a rule

would mean ‘any qualified member of a protected class who

alleges nothing more than that []he was denied a position or

promotion in favor of someone outside [his] protected class

would be able to survive a Rule 12(b)(6) motion.’” Velez v.

Wormuth, No. 7:20-CV-20-D, 2022 WL 3022134, at *6 (E.D.N.C. July

29, 2022) (quoting McCleary-Evans v. Md. Dep’t of Transp., 780

F.3d 582, 588 (4th Cir. 2015)). In line with that critique,

Defendant argues that to satisfy the fourth prong of the prima

facie case, Plaintiff must show that a “comparator of a

different protected class than [P]laintiff was selected” for the

job, where “there must be ‘enough common features between

[Plaintiff and the comparator] to allow for a meaningful

comparison.’” (Def.’s Br. (Doc. 27) at 16 (quoting Humphries v.

CBOCS West, Inc., 474 F.3d 387, 405 (7th Cir. 2007).) Defendant

contends that Hill is not an appropriate comparator to Plaintiff

to satisfy the fourth prong because they both “brought differing

combinations of education and experience to their applications.”

(Id. at 20.)

This court is not convinced by Defendant’s argument as a

matter of law. Whether or not the comparator is sufficiently

similar to establish an inference of discrimination here appears

to present an issue of fact for the jury to determine whether

there are enough common features. For purposes of summary

judgment, Plaintiff and Hill were both qualified for the

Assistant County Manager position; whether Hill’s experience is

sufficient to distinguish Plaintiff’s college degree and

experience is an issue of fact. Furthermore, it appears to this

court that the appropriate comparators here in a failure to

promote case would be similarly-situated applicants for the

Assistant County Manager. Plaintiff and Hill, both qualified

candidates for the job, one of whom is a member of a protected

class and one of whom is not, are sufficiently similar for

purposes of summary judgment. Accordingly, as Hill, who is not a

member of a protected class, was promoted over Plaintiff, a

member of a protected class, an inference of discrimination may

arise. See Gary v. Facebook, Inc., 822 F. App’x 175, 180 (4th

Cir. 2020) (“Under McDonnell Douglas, an inference of

discrimination arises from evidence that the employer favored a

comparator over the plaintiff.”).

Thus, this court finds that Plaintiff has established a

prima facie case of discrimination.

B. Defendant’s Legitimate, Non-Discriminatory Reasons

“Under McDonnell Douglas, once a plaintiff establishes a

prima facie case, the burden shifts to the defendant to produce

a non-discriminatory explanation for the decision.” Weaks, 761

F. Supp. 2d at 298. “The burden on Defendants at this stage is

one of production, not persuasion, and the court’s analysis ‘can

involve no credibility assessment.’” Id. at 298–99 (quoting St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993)).

Defendant proffers that Hill was selected for the position

of Assistant County Manager because he was the better-qualified

candidate. (See Blue Decl. (Doc. 28) at 5.) “[R]elative employee

qualifications are widely recognized as valid, non-

discriminatory bases for any adverse employment decision.” Evans

v. Techs. Applications & Serv. Co., 80 F.3d 954, 960 (4th Cir.

1996). And an “employer has discretion to choose among equally

qualified candidates provided the decision is not based upon

unlawful criteria.” Id.

Defendant explains that “Hill worked in leadership

positions in several County departments, including the office

for risk management, safety officer, operations manager, and

safety officer for the DOT transportation system, and as a

combined assistant director of human resources and risk

manager.” (Def.’s Br. (Doc. 27) at 9; see also Blue Decl. (Doc.

28) at 5–6.) Blue testified that Hill’s experiences in human

resources and risk management, as well as his familiarity with

the SEATS program, were key in selecting Hill for the position.

(Blue Dep. (Doc. 25-1) at 15.) This is consistent with

Defendant’s job description for the Assistant County Manager

position, which requires: human resources skills, such as

“acting on employee problems, selecting new employees,

appraising employee performance, recommending promotions,

discipline, termination and salary increases”; risk and safety

compliance skills, such as “develop[ing] policies, procedures,

and programs to meet safety standards set by state and federal

laws, codes, and regulations including United States and state

occupational safety and health administration regulations,”

along with managing “liability and property insurance programs”;

and familiarity with the County’s transportation and SEATS

programs, as the Assistant County Manager “[a]dministers [the]

County vehicle program.” (Job Description (Doc. 28-2) at 2, 3.)

This contrasts with Plaintiff’s more concentrated work

experience solely in the Robeson County DSS. (Def.’s Excerpts

Dial Dep. (Doc. 25-3) at 9–10, 16–29.)

Further, Blue testified that she wanted to hire someone who

could “hit the ground running,” (see Blue Decl. (Doc. 28) at 2),

which would likely be an applicant with familiarity across

multiple Robeson County departments, like Hill, rather than

someone whose work is concentrated only in one department, like

Plaintiff.

Additionally, Defendant points to Hill’s extensive

supervisory and managerial experience, in comparison to

Plaintiff’s limited supervisory experience. (Def.’s Br. (Doc.

27) at 10–11.) Specifically, Hill supervised “over a hundred

people” for a decade and a half while working in the private

sector before he worked for Robeson County. (Blue Decl. (Doc.

28) at 5.) While classified as a supervisor, Plaintiff had only

supervised five foster care social workers from 2005 to 2008 and

then four investigative social workers from 2008 to 2009.

(Application of Pl. Anthony Dial for Assistant County Manager

Position (“Pl. Job Appl.”) (Doc. 28-3) at 4–5.)

Plaintiff argues that Blue failed to consider Plaintiff’s

experiences outside of working for the Robeson County Department

of Social Services, including his service “in the Marine Corp,

[employment with the] Department of Public Safety, and volunteer

organizations.” (Pl.’s Resp. (Doc. 31) at 5–6.) This court is

not convinced by Plaintiff’s argument because even if this court

accepts Plaintiff’s argument as to his additional experience,

those facts do not rebut Defendant’s nondiscriminatory reasons

for the selection of Hill.

This stage of analysis “can involve no credibility

assessment.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509

(1993). The defendant “need only articulate ‘reasons for its

actions which, if believed by the trier of fact, would support a

finding that unlawful discrimination was not the cause of the

employment action.’” Moore v. Mukasey, 305 F. App’x 111, *4 (4th

Cir. Dec. 30, 2008) (emphasis in original) (quoting St. Mary’s

Honor Ctr., 509 U.S. at 507). At summary judgment, it is

Plaintiff’s burden to come forward with evidence to create an

issue of material fact; this court does not weigh evidence. See

Reeves, 530 U.S. at 142–43 (explaining that the defendant’s

burden at the second stage of the McDonnel Douglas analysis “is

one of production, not persuasion”); Bius v. Thompson, No.

02cv01120, 2004 WL 1348221, at *5 (M.D.N.C. June 14, 2004)

(“This court ‘does not sit as a kind of super-personnel

department weighing the prudence of employment decisions made by

firms charged with employment discrimination.’ ‘When an employer

articulates a reason for failing to select the plaintiff not

forbidden by law, it is not the court’s province to decide

whether the reason was wise, fair, or even correct.’”) (cleaned

up).

In sum, Defendant has presented evidence that Hill was

selected for the Assistant County Manager position over

Plaintiff because Hill had a wider array of relevant prior work

experiences in key areas of responsibility for an Assistant

County Manager and because Hill had more supervisory and

managerial experiences. Although Plaintiff alleges that he had

equivalent experience, Plaintiff has not presented evidence

sufficient to create an issue of material fact as to Blue’s

testimony. Thus, Defendant has articulated a legitimate, non-

discriminatory reason for its decision to promote Hill over

Plaintiff, meeting its burden at this stage of the McDonnell

Douglas framework.

C. Plaintiff’s Evidence of Pretext

Once an employer satisfies its burden of providing a

legitimate, non-discriminatory reason, the burden “returns to

the plaintiff to ‘prove by a preponderance of the evidence that

the stated reason for the adverse employment action is a pretext

and the true reason is discriminatory or retaliatory.’” Gary,

822 F. App’x at 180. “A plaintiff alleging a failure to promote

can prove pretext by showing that he was better qualified, or by

amassing circumstantial evidence that otherwise undermines the

credibility of the employer’s stated reasons.” Heiko v. Colombo

Sav. Bank, F.S.B., 434 F.3d 249, 259 (4th Cir. 2006). “The

ultimate burden of persuasion remains on the plaintiff at all

times.” Weaks, 761 F. Supp. 2d at 300 (citing Burdine, 450 U.S.

at 252–53.) Thus, Plaintiff must “forecast sufficient evidence

for a jury to conclude that (1) he was the better qualified

candidate or (2) Defendant[’s] stated reason for promoting

[Hill] over him was pretextual.” See id. This court finds that

Plaintiff has not forecast sufficient evidence that he was a

better qualified candidate or that Defendant’s stated reason for

promoting Hill was pretextual. Thus, Plaintiff fails to meet his

burden at the third and final stage of the McDonnell Douglas

framework.3

3 “[A]n equally valid way to prove pretext is to provide

evidence that the employer’s proffered reason was not the actual

reason relied on, but was rather a false description of its

reasoning — albeit one based on a real difference in

qualifications — manufactured after the fact.” Dennis v.

Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 648 n.4 (4th

Cir. 2002). Plaintiff has not presented any such argument, so

this court will not consider this method of showing pretext.

1. Plaintiff’s Argument that he was the Better

Qualified Applicant

Plaintiff contends that he is a superior candidate for

Assistant County Manager than Hill because he has a college

degree, while Hill does not, and because he has greater

supervisory experience than what was represented by Blue. (See

Pl.’s Resp. (Doc. 31) at 6–7.) This argument is not convincing.

“When a plaintiff relies on his qualifications to establish

pretext, he must do more than show his qualifications were

similar or only slightly superior to those of the person

eventually selected.” Weaks, 761 F. Supp. 2d at 300. Instead, he

must either show that “qualifications were so plainly superior

that the employer could not have preferred another candidate” or

“provide evidence that the employer’s proffered reason was not

the actual reason relied on, but was rather, a false description

of its reasoning . . . manufactured after the fact.” Dennis, 290

F.3d at 648 n.4. As Plaintiff does not present evidence that

Blue’s explanation was “manufactured after the fact,” Plaintiff

must show his qualifications were “plainly superior” to Hill’s.

See id.

Plaintiff focuses on “a college degree as the first (and

presumably primary) job qualification” for the Assistant County

manager position. (Pl.’s Resp. (Doc. 31) at 7.) The job

description states:

MINIMUM TRAINING AND EXPERIENCE

Bachelor’s degree in Business/Public Administration,

or a related field; considerable increasingly

responsible experience in the administration and

management of local government programs and personnel;

or any equivalent combination of training and

experience which provides the required skills,

knowledge and abilities.

(Job Description (Doc. 28-2) at 4.) Thus, the plain language of

the job description requires as minimum qualifications either a

bachelor’s degree “or” relevant “training and experience which

provides the required skills, knowledge, and abilities.” (Id.)

Plaintiff met the educational requirements and it is not

disputed that Plaintiff had a Bachelor’s degree and Hill did

not.

However, Blue explained that Hill’s past work experiences

were in key related areas of the Assistant County Manager

position and that she prioritized that experience over

education, as Blue sought an applicant who could “hit the ground

running” over someone who may need more training. (See Blue

Decl. (Doc. 28) at 2, 6.) Plaintiff has presented no evidence to

contradict Blue’s subjective determination that Hill’s broad

array of experience, including human resources, risk management,

and SEATS, (see Blue Dep. (Doc. 25-1) at 20), were not

appropriately desirable skills for the Assistant County Manager

position. A college degree or relevant experience were minimum

qualifications but did not establish superior qualifications for

the position. See Westinghouse Savannah River Co., 406 F.3d at

270–71 (explaining that just because the plaintiff exceeded the

minimum educational requirements for a job and had more

education than her competitor does not alone establish that the

employer’s reasons for promoting her competitor were pretext for

discrimination). Plaintiff’s argument that his college degree

makes him more qualified is not persuasive. See id. (explaining

that when defendants “base the promotion decision on the core

and functional competencies listed in the job description and

not on the educational levels of applicants, [the plaintiff]

cannot rely on [his] educational background to establish that

the defendants’ reasons for promoting [a less-educated

candidate] was a pretext for discrimination”).

Additionally, Plaintiff contends that Blue failed to fully

consider all of Plaintiff’s supervisory experiences while in the

Marine Corps and in community organizations. (Pl.’s Resp. (Doc.

31) at 6–7.) However, Plaintiff only included his involvement

with Robeson House, not any other community organizations, in

his application for the Assistant County Manager position, (see

Pl. Job Appl. (Doc. 28-3) at 8), and Plaintiff does not contend

those experiences were discussed in his interview. Further,

Plaintiff held supervisory roles for less time than Hill, and

Plaintiff supervised fewer people than Hill. Thus, this argument

is not sufficient to establish a genuine issue of material fact

as to whether Plaintiff was “plainly superior” to Hill for the

Assistant County Manager position.

The record does not establish a material issue of fact

concerning whether Plaintiff was more qualified than Hill. Hill

had extensive supervisory experience and experience in areas of

responsibility for the Assistant County Manager position.

Plaintiff, although he had completed a bachelor’s degree, only

had experience within the Robeson County DSS. Further, Hill had

previously worked directly under Jason King, the other Assistant

County Manager, and Blue, the former Assistant County Manager.

(See Hill Job Appl. (Doc. 28-4) at 6–7.)

2. Circumstantial Evidence Undermining Defendant’s

Stated Reason

Plaintiff also proffers evidence to establish that

Defendant’s stated reason for promoting Hill over Plaintiff for

the Assistant County Manager position was pretextual. However,

neither of the two arguments Plaintiff advances are convincing.

First, Plaintiff alleges that Taylor, a member of the

Robeson County Board of Commissioners, had influence on the

selection process and did not want a Native American to be

selected for the role. (See Pl.’s Resp. (Doc. 31) at 9.)

Plaintiff’s allegation rests upon two facts: that the Board of

Commissioners has input on personnel decisions, based upon a

former Commissioner’s testimony, (see Ex. C, Aff. Roger Oxendine

(Doc. 31-3) at 2); and that Taylor stated to Plaintiff that “we

would not have two Indians and an African-American in

administration,” (Pl.’s Excerpts Dial Dep. (Doc. 31-1) at

13-15). Oxendine’s affidavit — which is not sworn, notarized, or

signed — cannot be considered by this court on a motion for

summary judgment.4 Orsi v. Kirkwood, 999 F.2d 86, 92 (4th Cir.

1993) (“It is well established that unsworn, unauthenticated

documents cannot be considered on a motion for summary

judgment.”). Further, Blue testified that “[t]he Board of

Commissioners did not have any say in my decision.” (Blue Decl.

(Doc. 28) at 7.) Thus, based on the record this court may

4 Even if Oxendine’s affidavit is considered, it would not

affect this analysis. In terms of specific facts, the affidavit

states that Oxendine served as a County Commissioner and that

Oxendine knows both Plaintiff and Blue. However, Oxendine’s

familiarity with “standard practice” and “influence” is too

conclusory to create a material issue of fact as to the hiring

decision at issue here. (See Ex. C, Aff. Roger Oxendine (Doc.

31-3) at 2.) He offers no specific factual testimony or

knowledge as to the relevant events of this action; it is

entirely speculative as to what may have occurred during the

hiring of Hill or whether Oxendine has any knowledge of “facts

that would be admissible in evidence.” See Fed. R. Civ. P.

56(c)(4).

consider, this court finds that the Board of Commissioners did

not have influence on Blue’s hiring decision. Also, Plaintiff’s

testimony regarding Taylor’s alleged statement is inadmissible

hearsay.5 Even if admissible, Taylor’s statement does not create

a genuine issue of material fact as to unlawful racial

discrimination in the Assistant County Manager hiring process.

Nothing in the record suggests Taylor was involved in the hiring

process or that he provided input or influence in the hiring

decision. Consequently, Plaintiff’s allegation that the Board of

Commissioners provided impermissible race-based input in the

hiring decision is unavailing.

5 Plaintiff contends that Taylor’s statement is admissible

as a statement against Defendant’s interest, given that Taylor,

as a County Commissioner, is an agent of Defendant Robeson

County. (Pl.’s Resp. (Doc. 31) at 9.) The statement against

interest hearsay exception does not apply here, as it only

applies when the declarant (Taylor) is unavailable. See Fed. R.

Evid. 804(b)(3). This court has not been presented evidence that

Taylor is unavailable to testify. It is also not admissible as a

non-hearsay opposing party statement under Fed. R. Evid.

801(d)(2)(D) because Taylor’s statement was not made “on a

matter within the scope of that [agency or employment]

relationship.” See Fed. R. Evid. 801(d)(2)(D). “In order for a

statement to qualify as a party admission under Fed. R. Evid.

801(d)(2)(D), the declarant must have actually been involved in

the decision to hire or fire the person bringing the

discrimination charge.” Goss v. George Washington Univ., 942 F.

Supp. 659, 662 (D.D.C. 1996). Nothing in the record suggests

Taylor provided input or influence on the hiring decision or was

involved in the hiring process, so his statement is not

admissible as a party admission. Regardless, this court declines

to make an evidentiary finding as to the admissibility of

Taylor’s alleged statement, as even if admissible, the statement

does not create a genuine issue of material fact.

Second, Plaintiff alleges that Tom Taylor told Plaintiff’s

wife, Rhonda Dial, that the Assistant County Manager position

was “Shelton Hill’s job” before the hiring decision was made.

(See Pl.’s Resp. (Doc. 31) at 2–3 (referencing Rhonda Dial’s

affidavit); see also Ex. B, Aff. of Rhonda Dial (Doc. 31-2) at

3.) However, this allegation does not provide evidence of

unlawful race-based discrimination. This statement is

inadmissible hearsay that this court cannot consider, as it is

being offered for the truth of the matter asserted — that

Shelton Hill was already selected for the Assistant County

Manager position. Even if admissible, it does not provide

evidence of race-based discrimination as a pretext for

Defendant’s promotion decision. At most, it suggests

preselection, which “‘is not sufficient evidence for jurors

reasonably to conclude’ that the defendant[’s] explanation for

hiring [Hill] was pretext.” See Westinghouse Savannah River Co.,

406 F.3d at 271 (quoting Mackey v. Shalala, 360 F.3d 463, 468–69

(4th Cir. 2004)). “[P]re-selection does not violate Title VII

when the pre-selection is based on the qualifications of the

pre-selected candidate, and not on some basis prohibited by

Title VII.” Weaks, 761 F. Supp. 2d at 306 (citing Mackey, 360

F.3d at 468–69). “[W]hile pre-selection may establish that an

employee was ‘unfairly treated, it does not by itself prove

racial discrimination.’” Id. (quoting Westinghouse Savannah

River Co., 406 F.3d at 271).

In sum, Plaintiff does not raise a genuine dispute of

material fact to suggest Defendant’s proffered reason for

promoting Hill over Plaintiff was pretextual.

Vv. CONCLUSION

Plaintiff establishes a prima facie case of race

discrimination in his non-promotion to Assistant County Manager

under McDonnell Douglas. However, Defendant meets its burden of

articulating a legitimate, non-discriminatory reason for its

action — that Hill, the selectee, was more qualified than

Plaintiff. Finally, Plaintiff does not raise a genuine dispute of

material fact suggesting that Defendant’s stated reason was

pretextual. Accordingly, Defendant is entitled to judgment as a

matter of law.

For the foregoing reasons,

IT IS THEREFORE ORDERED that Defendant’s Motion for Summary

Judgment, (Doc. 25), is GRANTED.

This the 27th day of March, 2023.

Wat 1. olan,

United States District J e

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