# Gaston v. Anson County School District

> District Court, W.D. North Carolina · July 1, 2019

URL: https://www.frixlaw.com/law-library/cases/10255111

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** July 1, 2019
- **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/10255111

## How later opinions describe it (automated extraction)

- affirming district court’s grant of summary judgment, finding that the plaintiff-teacher had failed to proffer “sufficiently demonstrative” evidence “of [the defendant’s] retaliatory intent to establish that the poor performance discharge motive [was] pretext
- finding that the plaintiff could not show that the defendant’s stated reasons for her termination—one being that she had made certain “misrepresentations to [Defendant] during the hiring process—were pretext for retaliatory animus

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:17-cv-00232-RJC-DSC

PHYLLIS GASTON, )
)
Plaintiff, )
)
v. )
) ORDER
ANSON COUNTY SCHOOL DISTRICT, )
)
Defendant. )
__________________________________________ )

THIS MATTER comes before the Court on Defendant’s Motion for Sanctions,
(Doc. No. 46), and Motion for Summary Judgment, (Doc. No. 48), and the parties’
associated briefs and exhibits.1 The Magistrate Judge issued a Memorandum and
Recommendation (“M&R”) on Defendant’s Motion for Sanctions, (Doc. No. 58),
recommending that Defendant’s Motion for Sanctions be granted due to Plaintiff’s
failure to comply with discovery and failure to appear at her deposition. Plaintiff
filed a timely Objection to the M&R, (Doc. No. 60). After having been fully briefed,
the motions are ripe for adjudication.

1 In responding to Defendant’s Motion for Summary Judgment, Plaintiff submitted
three responses—all of which are largely identical. (See Doc. Nos. 53–55). She then
submitted a Surreply to Defendant’s Reply Brief, which again, included the same
substance already stated in her former responses. (See Doc. No. 59). For purposes
of this Order, the Court construes Doc. No. 55 as the operative responsive brief to
Defendant’s Motion for Summary Judgment.
I. BACKGROUND
A. Factual Background
The following facts are undisputed, or when disputed, are taken in the light

most favorable to Ms. Phyllis Gaston (“Plaintiff”). In 2014, Plaintiff was enrolled in
the Graduate Teaching Program at the University of North Carolina at Charlotte
(“UNC Charlotte” or “UNCC”). In August 2014, Plaintiff informed individuals at
UNC Charlotte that she had “secured a full time teaching position in order to be
certain that [she would] be prepared for the Spring, 2015 course.” (Doc. No. 50-3 at
5). On November 14, 2014, Plaintiff met Marty Godwin, the Assistant
Superintendent and Human Resources (“HR”) Administrator for Defendant Anson

County Board of Education (“Defendant” or “the Board”),2 at a UNC Charlotte
career fair. (Doc. No. 1 at 9). Mr. Godwin and Plaintiff discussed the potential of
Plaintiff teaching at Anson County in the Spring. In this initial conversation,
Plaintiff represented that she intended to serve as a full time lateral entry teacher3

2 Although the Complaint names the Anson County School District as the
defendant, the correct name of the entity is Anson County Board of Education.
3 Mr. Godwin has submitted a declaration testifying to the requirements for lateral
entry licensure:

For a school system to apply for a lateral entry license for a teacher
during the 2014-2015 school year, the teacher must have shown the
school that she has a bachelor’s degree from a regionally-accredited
college or university. The teacher must also show one of the following:
(a) her degree was relevant to the area in which she was teaching (e.g.
a bachelor of science in biology for a biology teacher) and she received a
2.5 GPA or better for the course of study towards that degree; (b) she
had at least 24 hours of course work and five years of relevant work
experience; or (c) she passed North Carolina State Board of Education
and indicated that she had the necessary qualifications to serve in this capacity.
(Doc. No. 1 at 9; Doc. No. 52 at 1).
On November 26, 2014, Plaintiff submitted a job application to Defendant

that made the following representations:
(1) Plaintiff had one year of experience teaching high school English;
(2) Plaintiff had completed three months of student teaching/internship
under the supervision of teacher Kendl Bostleman in seventh grade
English/Language Arts during the 2012–2013 school year;
(3) Plaintiff anticipated receiving a teaching license on May 31, 2015 through
a “College/University program” and would apply for the license when she was
eligible.
(4) Plaintiff had received “State Advanced Certification” as highly qualified in
English and Reading and Language Arts.
(Doc. No. 52-1 at 3–6). However, none of the materials on file with the Board or
with UNC Charlotte show that Plaintiff had one year of experience teaching high
school English or that she had ever received a certification as a highly qualified
teacher. Moreover, Plaintiff had not completed three months of student teaching in
the spring of 2013; rather, she received a grade of “W” and no credit for her student
teaching in 2013. (Doc. No. 50-3 at 3). Thus, it appears that Plaintiff
misrepresented her qualifications on her application to the Board.
On December 3, 2014, the Board created a “New Hire Alert” for Plaintiff,
which listed her job title as a substitute teacher, with an hourly pay of $98/day.
(Doc. No. 52-2 at 2). Because Plaintiff had no certifications at the time the Board

licensure exams, achieved certain standardized test scores, and met
certain GPA requirements.

(Doc. No. 52 ¶ 10). Mr. Godwin stated these requirements are based on the
State Board of Education’s rules as provided in 16 N.C. Admin. Code 6C.0305
(West 2014; last amended Jan. 2, 2006). (Id. ¶ 11).
hired her, the term certified was crossed out. (Id.). At Plaintiff’s behest, the
Board’s HR Supervisor, Joy Drake, signed a letter on December 4, 2014, stating
that Plaintiff was “employed with Anson County Schools as an 8th Grade English

Language Arts teacher effective December 3, 2014. This is a full time position.”
(Doc. No. 51-1 at 3). This letter was supposedly provided to UNC Charlotte to
release Plaintiff from her teaching program at UNC Charlotte. (Doc. No. 51 ¶ 3).
Because Ms. Drake had been informed that Plaintiff qualified for a lateral
entry license, Ms. Drake gave Plaintiff a draft of a “Temporary Full-Time” form
contract. (Doc. No. 1 at 10; Doc. No. 51 ¶ 5). Ms. Drake noted on the unofficial copy
that the “official contract w[ould] be available after December Board Meeting.”

(Doc. No. 51-2 at 2). Because Plaintiff never provided the Board with the necessary
materials for the Board to apply for lateral entry licensure on her behalf, the Board
hired her as a full-time, uncertified, substitute teacher, (Doc. No. 51 ¶ 6; Doc. No.
51-3 at 2; Doc. No. 52 ¶ 13). Plaintiff acknowledged this status on April 2, 2015
after Ms. Drake informed Plaintiff that she was not invited to the new teacher
orientation because she was “not being paid as a certified teacher yet” and that

Plaintiff would “be invited to attend in August once [her] license ha[d] cleared
licensure.” (See Doc. No. 51-4 at 2). Defendant alleges that after Plaintiff had
begun teaching at Anson County Middle School, the Board became aware that
Plaintiff was attempting to complete her student teaching internship—a UNC
Charlotte field experience course–while being paid as a full-time substitute.4
The record is replete with Plaintiff’s negative performance reviews while

teaching at Anson Middle School.5 Despite consistent feedback, Plaintiff did not
seem to heed the Board’s recommendations for improvement. Ultimately, Plaintiff
received two formal write-ups from the Board in April 2015—one for leaving her
class in the hands of another teacher without obtaining prior authorization to do so,
and the second for being the only staff member to not complete the mandatory,
assigned safety training modules.

4 In March 2015, Plaintiff’s University Supervisor wrote the school principal
inquiring about Plaintiff’s performance: “I am just making sure that [Plaintiff] is
meeting standards. She must have them met by the end of the internship in April.”
(Doc. No. 50-5 at 2). After Plaintiff’s outburst on April 28, 2015, Mr. Godwin
characterized Plaintiff to UNC Charlotte as “a UNCC student that is substituting.”
(Doc. No. 53-7 at 2).
5 See Doc. No. 52-3 at 5 (noting, after observing Plaintiff teach on March 20, 2015,
that Plaintiff’s performance was “below standard on each of the four standards
observed during the observation” and characterizing her relationships with
students as “adversarial and confrontational”); id. at 8 (asking Plaintiff to refrain
from placing “students in the hallway for disciplinary reasons” and leaving them
unsupervised); id. at 9 (issuing Plaintiff a formal write-up on April 2, 2015 for
opting to not teach her class and instead choosing to work on her grades: “This is
completely unacceptable and unprofessional to choose to not teach your class to
work on grades, especially without permission from administration.”); id. at 10
(instructing Plaintiff that “[h]aving unpredictable and inconsistent expectations on
homework isn’t a best practice” and asking her to “[p]lease correct this
immediately”); id. at 12 (attempting to give Plaintiff feedback on April 2, 2015 and
asking Plaintiff to “provide an explanation of why [she was] not complying with . . .
expectations that have been communicated in multiple instructional coaching
sessions, classroom feedback, post-observation conferences, and in writing . . . .).
See also Doc. No. 52-4 at 7 (threatening to issue Plaintiff a second formal write-up
on April 2, 2015 because she was the “the only staff member that ha[d] not
completed the assigned [safety training] modules”).
On April 24, 2015, the school principal Mr. McLaurin informed Plaintiff that
she was being reassigned from her full time English/Language Arts class to the
Computer Lab. (Doc. No. 52-5). Plaintiff alleges that prior to this reassignment,

Plaintiff had “reported numerous incidents of sexual and general harassment”6 and
that she was preparing “to write up a group of white male students for another
incident of sexual harassment” on April 24, 2015—the same day she was
reassigned. (Id.).7 Her reassignment was to be effective starting Monday, April 27,
2015, and Mr. McLaurin instructed Plaintiff to “[s]ee Mrs. Harrington first thing on
Monday morning to get the key . . . .” (Id.). On April 27, 2015, instead of reporting
to the computer lab as instructed, Plaintiff went to her former classroom and “found

a substitute teacher in her English/Language Arts classroom.” (Doc. No. 1 at 11).
Subsequently, Plaintiff left the school early and went to HR and visited with her
University Supervisor at UNC Charlotte. (Doc. No. 50-7 at 2). Plaintiff alleges that

6 See generally Doc. No. 1 at 13–14 (alleging incidents of supposed harassment).
7 None of these alleged reports are documented in the record, except for Plaintiff’s
own allegations in her Complaint. “Such general
‘assertions, standing alone, are insufficient to sustain an actionable Title VII
claim.’” Huggins v. N.C. Dep't of Admin., No. 5:10-CV-414-FL, 2013 WL 5201033, at
*8 (E.D.N.C. Sept. 13, 2013), aff'd sub nom. Huggins v. NC Dep't of Admin., 554 F.
App'x 219 (4th Cir. 2014) (quoting Gilliam v. S. Carolina Dep't Of Juvenile
Justice 474 F.3d 134, 143 (4th Cir. 2007)). Notably, however, Plaintiff has not
identified these supposed instances of reporting harassment as the protected
activity for which Defendant retaliated against her. (See Doc. No. 55 at 1 (claiming
that she engaged in protected activity on April 27, 2015 when she allegedly reported
being subjected to “discrimination, harassment, and a hostile working environment”
to HR)). Therefore, because the alleged reports lack substantiation, and because
Plaintiff has not argued that the reports constituted protected activity, the Court
does not consider these alleged reports for purposes of this Order.
when she arrived home on April 27, 2015, her Anson County School email account
had been deactivated. (Doc. No. 1 at 12). The next day on April 28, 2015, when
Plaintiff arrived at work, she alleges that her ID card had been deactivated. (Id.).

When Plaintiff was let into the building, she discovered that a substitute had been
requested for the Computer Lab. (Id.). Subsequently, Plaintiff demanded that she
speak with Mr. Adams, the assistant principal. (Id.). Multiple witnesses have
testified to the fact that Plaintiff interrupted a closed-door meeting between Mr.
Adams, a parent, and a student. (See generally Doc. No. 52-6). The record
establishes that Plaintiff caused a public disruption in front of school personnel,
students, and at least one parent—shouting and accusing both the principal and

assistant principal of being white supremacists and threatening that she intended
to file a lawsuit. (id.). After this scene, Plaintiff alleges that she went and spoke to
Ms. Drake, requesting that Ms. Drake give Plaintiff her contract. (Doc. No. 1 at 12).
Ms. Drake did not comply with Plaintiff’s request, allegedly informing Plaintiff that
she was a substitute. (Id.).
The date of Plaintiff’s termination, and whether Plaintiff was terminated at

all, are disputed. Plaintiff alleges that Mr. Godwin called Plaintiff on May 8, 2015
and informed her that she had been terminated. (Id. at 13). On the contrary,
Defendant alleges that Plaintiff was never terminated. (Doc. No. 49 at 13). Rather,
Defendant claims that Plaintiff was merely removed from its system in January
2016, when the Chief Financial Officer for the Board was reviewing certain records
and realized that Plaintiff had not been separated or terminated. (Doc. No. 51-5).
After being alerted to this, the Board’s superintendent directed that May 1, 2015—
Plaintiff’s last pay date—be considered Plaintiff’s last day of employment and also
directed that Plaintiff be “deactivate[d]” as a substitute “if that ha[d] not been done

yet.” (See id.). On May 7, 2015, the Board informed UNC Charlotte that it would
not be able to provide a student teaching certification for Plaintiff for the following
reasons:
(1) Formal student teacher arrangement protocol was not followed by UNCC
nor Mr. Gaston[;]
(2) Ms. Gaston’s application [the Board] ha[d] on file indicate[d] that she
ha[d] completed student [teaching] prior to becoming a substitute teacher for
[the Board]; and
(3) [Ms. Gaston] d[id] not have a contract with ACS.

(Doc. No. 53-7 at 4). Mr. Godwin explained that the decision reflected that “normal
student teaching is addressed through the HR department with signed
documentation” and that Plaintiff’s position as a substitute teacher “did not meet
the criteria of the UNCC program.” (Id. at 3).
A. Procedural Background
On May 1, 2017, Plaintiff sued Defendant and other various school personnel,
alleging employment discrimination claims arising out of her work at Anson Middle
School. (Doc. No. 1). On May 19, 2017, all individual defendants were terminated,
leaving the Board as the sole Defendant. After Defendant filed its Motion to
Dismiss, (Doc. No. 11), the Court dismissed all of Plaintiff’s claims but for her
retaliation claim. (Doc. No. 22). Defendant answered Plaintiff’s Complaint on
March 9, 2018. (Doc. No. 23). A mediation occurred on June 27, 2018, but the
parties reached an impasse. (Doc. No. 31). On August 8, 2018, the Court issued its
Pretrial Order and Case Management Plan, (Doc. No. 36), setting the close of
discovery as December 21, 2018.
On December 4, 2018, Defendant served Plaintiff with a notice of deposition

via FedEx. (Doc. No. 42; Doc. No. 44-1 at 2–4). Three days prior to the duly noticed
deposition, Plaintiff filed an Objection to Notice of and Deposition of Plaintiff
Phyllis Gaston, (Doc. No. 43), complaining of factors such as time, distance, and
expense, as well as Defendant’s conduct at mediation. Plaintiff stated that
responding to written questions should be sufficient. From the record, it also
appears that Plaintiff attempted to dodge service of Defendant’s Response in
Objection to Plaintiff’s Objection. (See Doc. No. 47-1). This document which

Plaintiff refused service of warned that “[i]f Plaintiff fails to attend her deposition,
the Board will seek dismissal of Plaintiff’s case,” citing Federal Rules of Civil
Procedure 37(d)(1)(A)(i) and 41(b), which authorize the Court to dismiss a claim for
failure to appear at one’s own deposition and failure to prosecute. (Doc. No. 44).
Plaintiff failed to appear for her deposition.
After Plaintiff did not appear for her deposition scheduled on December 20,

2018, Defendant filed its Motion for Sanctions, (Doc. No. 46), and Motion for
Summary Judgment, (Doc. No. 48), on January 24, 2019. Defendant premises its
Motion for Sanctions on Plaintiff’s refusal to appear at her own deposition and
failure to conduct discovery in this case. Indeed, it appears to the Court that
Plaintiff’s only effort to participate in discovery was her filing of initial disclosures
on August 24, 2018, (Doc. No. 40), and then amending this filing on August 27,
2018, (Doc. No. 41). Since then, Plaintiff has not participated in any discovery.
Plaintiff has not issued any written discovery, nor has she noticed any depositions,
indicating a failure to prosecute a matter she initiated.

II. STANDARD OF REVIEW
A. Motion for Sanctions
A district court may assign dispositive pretrial matters, including
motions for sanctions that ask for dismissal of an action, to a magistrate judge for
“proposed findings of fact and recommendations.” 28 U.S.C. § 636(b)(1)(A) and (B).
The Federal Magistrate Act provides that “a district court shall make a de novo
determination of those portions of the report or specific proposed findings or

recommendations to which objection is made.” Id. at § 636(b)(1)(C); Fed. R. Civ. P.
72(b)(3); Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983).
B. Motion for Summary Judgment
Summary judgment shall be granted “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 factual dispute is genuine “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). A fact is
material only if it might affect the outcome of the suit under governing law. Id.
The movant has the “initial responsibility of informing the district court of the basis
for its motion, and identifying those portions of the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, which
it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). This
“burden on the moving party may be discharged by ‘showing’—that is, pointing out

to the district court—that there is an absence of evidence to support the nonmoving
party’s case.” Id. at 325.
Once this initial burden is met, the burden shifts to the nonmoving party,
which “must set forth specific facts showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 250. The nonmoving party may not rely upon mere
allegations or denials of allegations in the pleadings to defeat a motion for summary
judgment, rather it must present sufficient evidence from which “a reasonable jury

could return a verdict for the nonmoving party.” Id. at 248; accord Sylvia Dev.
Corp. v. Calvert Cty., Md., 48 F.3d 810, 818 (4th Cir. 1995).
When ruling on a summary judgment motion, a court must view the evidence
and any inferences from the evidence in the light most favorable to the nonmoving
party. Anderson, 477 U.S. at 255. Additionally, because Plaintiff filed her
Complaint it must be held to less stringent standards than formal pleadings

drafted by lawyers. Haines v. Kerner 404 U.S. 519, 520–521 (1972). Nevertheless,
“[w]here the record taken as a whole could not lead a rational trier of fact to find for
the nonmoving party, there is no genuine issue for trial.” Ricci v. DeStefano, 557
U.S. 557, 586 (2009) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986)). The mere argued existence of a factual dispute does not
defeat an otherwise properly supported motion. Anderson, 477 U.S. at 248–49. “If
the evidence is merely colorable or is not significantly probative,” summary
judgment is appropriate. Id. at 249–50 (citations omitted).
III. DISCUSSION

A. Defendant’s Motion for Summary Judgment

“Title VII prohibits an employer from retaliating against a worker for either
participating in a Title VII proceeding or opposing an employer’s discriminatory
practices.” Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 255 (4th
Cir. 1998) (citing 42 U.S.C. § 2000e–3(a)) (footnote omitted). Retaliation claims
claims filed under Title VII, 42 U.S.C. § 2000e–3 apply the burden-shifting
framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under the McDonnell-Douglas framework, a plaintiff “must satisfy a three-step
proof scheme”:
First, [Plaintiff] must establish, by a preponderance of the evidence, a
prima facie case of retaliation. Once established, the burden shifts to
[Defendant] to rebut the presumption of retaliation by articulating a
non-retaliatory reason for its action. If [Defendant] meets its burden of
production, the presumption of discrimination created by the prima
facie case is rebutted and “drops from the case,” and [Plaintiff] bears
the ultimate burden of proving that she has been the victim of
retaliation[.]

Laughlin, 149 F.3d at 258 (4th Cir. 1998).
1. Plaintiff cannot establish a prima facie case of retaliation
because she cannot demonstrate a causal nexus existed between
her protected activity and the Board’s adverse employment
action.

To establish a prima facie case of retaliation, Plaintiff must meet three
elements: “(1) that she engaged in protected activity, (2) that an adverse
employment action was taken against her, and (3) that there was a causal link
between the protected activity and the adverse employment action.” Id. The

Fourth Circuit has noted that both formal and informal grievances can constitute
protected activity. “Opposition activity encompasses utilizing informal grievance
procedures as well as staging informal protests and voicing one's opinions in order
to bring attention to an employer's discriminatory activities.” Laughlin, 149 F.3d at
259. The Court finds that Plaintiff engaged in protected activity when she filed her
report of alleged discrimination to the Board’s HR personnel on April 27, 2015.8
Thus, Plaintiff meets the first element of a retaliation claim.

Defendant argues that Plaintiff cannot establish the second element of her
retaliation claim, asserting that the Board never took adverse employment action
against Plaintiff because the Board never terminated Plaintiff. Rather, Defendant
argues it simply “removed her from its systems more than seven (7) months later,
when its CFO noted that she was still listed as a full-time substitute, but had not
been paid since May 1, 2015.” (Doc. No. 49). The Court is not persuaded by this

argument for two reasons. First, the issues of whether Plaintiff was terminated,
and if so, when she was terminated are disputed. Second, regardless of the issue of
whether Plaintiff was terminated, the Court finds that Defendant took another
adverse employment decision against Plaintiff. The Fourth Circuit has noted that

8 This date is disputed, but for purposes of this Order, the Court adopts the date
Plaintiff claims she filed the report.
adverse action does not only encompass termination decisions. “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) (alteration and internal quotation
marks omitted). “A reassignment can only form the basis of a valid Title VII claim if
the plaintiff can show that the reassignment had some significant detrimental
effect.” Id. at 376 (internal quotation marks omitted). Examples of an adverse
action include a “decrease in compensation, job title, level of responsibility, or
opportunity for promotion.” Id. (internal quotation marks omitted).
Here, construing Plaintiff’s claim broadly,9 Plaintiff has put forth evidence

that Defendant took adverse action against her when it reassigned Plaintiff from
her full-time English/Language Arts class to the Computer Lab. Defendant argues
that “[u]ltimately, Plaintiff performed so poorly as a substitute for the Anson
Middle School Eighth Grade English Language Arts class that she was reassigned
as a substitute in the school’s computer lab.” (Doc. No. 49 at 2). Because this
decreased Plaintiff’s level of responsibility, the Court finds that Plaintiff has

established that the Board took some type of adverse action against her, even if the
issue of termination, or lack thereof, is disputed.
Regarding the third element of a retaliation claim, “[t]o survive summary
judgment . . . a plaintiff must have evidence from which a reasonable factfinder

9 The Court is mindful of the requirement that pro se filings “however unskillfully
pleaded, must be liberally construed.” Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th
Cir. 1994).
could conclude that a causal connection exists between the protected activity and
the adverse action.” Dowe v. Total Action Against Poverty in Roanoke Valley, 145
F.3d 653, 657 (4th Cir. 1998). “To satisfy the third element, the employer must

have taken the adverse employment action the plaintiff engaged in a
protected activity.” Id. “Title VII retaliation claims must be proved according to
traditional principles of but-for causation.” Univ. of Tex. Sw. Med. Ctr. v. Nassar,
570 U.S. 338, 360 (2013); see also Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 252
(4th Cir. 2015). The burden for establishing causation at the prima facie stage is
not an onerous one, Foster, 787 F.3d at 251; nevertheless, Plaintiff has failed to
establish a causal connection because the adverse employment action preceded

Plaintiff’s protected activity.
Plaintiff has identified April 27, 2015 as the definitive date that she engaged
in protected activity. (Doc. No. 54 at 1). While Plaintiff’s reassignment did not take
effect until Monday morning, April 27, 2015, the Board made the reassignment
prior to Plaintiff filing her complaint with HR. This is memorialized by an e-mail
the principal sent to Plaintiff on April 24, 2015, informing her that she needed “to

be prepared to start” in the Computer Lab Monday morning and that she would no
longer be on the “E[nglish] L[anguage] A[rts] team.” (Doc. No. 52-5 at 2). Because
the alleged adverse employment decision precipitated the protected activity, a
reasonable juror could not find the necessary causal nexus. See Dowe, 145 F.3d at
657 (“[T]he employer's knowledge that the plaintiff engaged in a protected activity
is absolutely necessary to establish the third element of the prima facie case.”).
Since Plaintiff cannot prove that the Board reassigned her after becoming aware of
Plaintiff’s participation in protected activity, Plaintiff cannot establish that the
Board “must have taken the adverse employment action [she] engaged in a

protected activity,” and thus Plaintiff cannot establish a prima facie case of
retaliation. Dowe, 145 F.3d at 657.
2. Even assuming Plaintiff could establish a prima facie case of
retaliation, Plaintiff cannot establish that Defendant’s
legitimate, nondiscriminatory reasons for her reassignment and
ultimate termination were pretext for retaliatory animus.

Even assuming Plaintiff could establish a prima facie case of
retaliation, the Board has offered legitimate, nondiscriminatory reasons for
Plaintiff’s reassignment. As mentioned, the record is replete with evidence of
Plaintiff’s failure to meet the Board’s legitimate expectations in her employment.10
The record demonstrates that, despite consistent feedback and communication from
school personnel that she was not meeting standards and specific suggestions for
improvement, Plaintiff’s poor performance persisted. Plaintiff had ample
opportunities to amend course and incorporate the Board’s feedback regarding her
need to improve in certain core competency areas in her teaching, yet she failed to
do so. After Plaintiff demonstrated her ineffectiveness in teaching and maintaining
control in her English Language Arts class, the Board reassigned her to the
Computer Lab. This was a legitimate, nonretaliatory—perhaps even charitable—
course of action for the Board to take. Rather than terminate her, the Board chose

10 See supra note 5.
to afford Plaintiff another opportunity at a different post. Plaintiff has offered no
evidence demonstrating that the Board’s legitimate, nonretaliatory reason to
reassign Plaintiff was pretextual, other than her own threadbare allegations—

something insufficient for overcoming a summary judgment motion.
To the extent that Plaintiff alleges her ultimate termination was the adverse
employment action taken against her, the record indicates that Plaintiff procured
her employment with Defendant by making certain misrepresentations in her job
application. Defendant seems to have hired Plaintiff on false pretenses—it relied on
her representations that she had had one year of experience teaching high school
English and that she had received a certification as a highly qualified teacher in

English and Language Arts. The Board alleges that it did not uncover the falsity of
these representations until May 2015. Therefore, regardless of the date of
termination (or removal from Defendant’s system) the Court adopts, Defendant had
a legitimate, nondiscriminatory reason for ending Plaintiff’s employment with the
Board. And here again, Plaintiff has not put forth any evidence showing that the
Board’s legitimate reason for her termination/removal from its system was a pretext

for retaliation. See King v. Rumsfeld, 328 F.3d 145, 154 (4th Cir. 2003) (affirming
district court’s grant of summary judgment, finding that the plaintiff-teacher had
failed to proffer “sufficiently demonstrative” evidence “of [the defendant’s]
retaliatory intent to establish that the poor performance discharge
motive [was] pretext); see also Springs v. Ally Fin. Inc., No. 3:10-CV-311, 2012 WL
260661, at *9 (W.D.N.C. Jan. 30, 2012), aff'd, 475 F. App'x 900 (4th Cir. 2012)
(finding that the plaintiff could not show that the defendant’s stated reasons for her
termination—one being that she had made certain “misrepresentations to
[Defendant] during the hiring process—were pretext for retaliatory animus).

In sum, Title VII was “not intended to immunize insubordinate, disruptive, or
nonproductive behavior at work.” Laughlin v. Metro. Washington Airports Auth.,
149 F.3d 253, 260 (4th Cir. 1998) (quoting Armstrong v. Index Journal Co., 647 F.2d
441, 448 (4th Cir. 1981)). This Court declines to question the propriety of the
Board’s decisions regarding Plaintiff’s employment when the record evidence is
overwhelming that Plaintiff failed to adequately perform in her teaching position
and made certain misrepresentations to Defendant in her initial job application.

Because Plaintiff cannot establish a prima facie case of retaliation, nor can she
show that Defendant’s legitimate, nonretaliatory reasons for reassigning and
ultimately removing and/or terminating Plaintiff from its system and employ were
pretext for retaliatory animus, Plaintiff’s retaliation claim fails as a matter of law
and entry of summary judgment in Defendant’s favor is appropriate.
B. Defendant’s Motion for Sanctions

Defendant has moved for sanctions for Plaintiff’s noncompliance with
discovery and failure to appear at her deposition. The Magistrate Judge issued a
Memorandum and Recommendation (“M&R”), recommending that this Court grant
Defendant’s Motion and impose sanctions. Plaintiff objected, but advanced the
same arguments already included in her initial briefing. Nevertheless, the Court
has conducted a de novo review of the M&R and finds Plaintiff’s objections
meritless.
In its Motion for Sanctions, Defendant asked for dismissal of Plaintiff’s

remaining claim for retaliation, or, in the alternative, for an award of attorneys’ fees
and court reporting costs for the deposition Plaintiff refused to attend. (Doc. No. 46
at 2). The Fourth Circuit has repeatedly expressed a strong preference to decide
claims and defenses on their merits. Colleton Preparatory Acad., Inc. v. Hoover
Universal, Inc., 616 F.3d 413, 417 (4th Cir. 2010). As such, the Court has chosen to
evaluate Plaintiff’s retaliation claim on the merits rather than awarding dismissal
as a sanction, and therefore DENIES IN PART Defendant’s Motion for Sanctions.

Nevertheless, the Court is disturbed by Plaintiff’s choice to invoke the power
of this Court yet fail to comply with certain rules of procedure. Plaintiff cannot pick
and choose which legal rules she will adhere to. Defendant was clearly entitled to
depose Plaintiff11 and finds Plaintiff’s unilateral refusal to appear for her deposition
unacceptable. Therefore, under Federal Rule of Civil Procedure 37(b)(2) and the
Court’s inherent power to impose sanctions, the Court GRANTS IN PART

Defendant’s Motion for Sanctions by awarding attorneys’ fees and court reporting
costs for the deposition Plaintiff refused to attend.

11 See Fed. R. Civ. P. 45(c)(1)(B); see also Fed. R. Civ. P. 37(d)(3) (authorizing
dismissal for a party’s failure to attend its own deposition).
IT IS THEREFORE ORDERED THAT:
1. Defendant’s Motion for Summary Judgment, (Doc. No. 48), is
GRANTED;
2. The Magistrate Judge’s M&R, (Doc. No. 58), is AFFIRMED and
ADOPTED;
3. Defendant’s Motion for Sanctions, (Doc. No. 46), is DENIED IN PART
and GRANTED IN PART. That is, denied in part as to Defendant’s
request to dismiss Plaintiffs retaliation claim as a sanction. Rather,
the Court has chosen to adjudicate that claim on the merits. But the
Motion is granted in part as to Defendant’s request for attorneys’ fees
and costs. Plaintiff shall reimburse Defendant its attorneys’ fees and
court reporting costs for the deposition Plaintiff refused to attend.
Defendant is DIRECTED to submit a subsequent pleading with
accompanying exhibits documenting the amount of attorneys’ fees and
costs it incurred for the deposition; and
4. The Clerk of Court is directed to close this case.

Signed: June 30, 2019
Otef$ 4 Cr Of
Robert J. Conrad, Jr. as
United States District Judge ee

20

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10255111. Public record. Not legal advice.