LEE v. MARKET AMERICA, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

HUI MINN LEE, )

)

Plaintiff, )

)

v. ) 1:18CV1046

)

MARKET AMERICA, INC., )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

This matter comes before the court on Defendant Market

America, Inc.’s (“Defendant”) Motion for Summary Judgment,

(Doc. 33). For the reasons that follow, this court will grant

Defendant’s Motion for Summary Judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

Plaintiff Hui Minn Lee (“Plaintiff”)1 worked as a corporate

trainer at Market America from September 2000 through October 5,

2017. (Mem. of Law in Supp. of Def.’s Mot. for Summ. J. (“Def.’s

Br.”) (Doc. 34) at 1, 4.)2 She is Taiwanese. (Lee Decl. (Doc. 36-

1 Plaintiff also goes by “Nadine.” (Ex. A, Hui Minn Lee

Decl. (“Lee Decl.”) Doc. 36-1 ¶ 1.)

2 All citations in this Memorandum Opinion and Order to

documents filed with the court refer to the page numbers located

at the bottom right-hand corner of the documents as they appear

on CM/ECF.

1) ¶ 5.) Market America is a product brokerage and internet one-

to-one marketing company. (Def.’s Br. (Doc. 34) at 3.) Market

America does business worldwide, and its headquarters are in

Greensboro, North Carolina. (Id.) Plaintiff was a member of

Market America’s training department. (Id.)

Plaintiff started at Market America as a franchise services

representative and then moved into the training department in

2002. (Ex. 2, Nadine Lee Dep. (“Lee Dep.”) (Doc. 34-2) at 5–7.)

In 2015, her title changed to a senior trainer. (Id. at 8.) Her

title was changed again to global training project manager.

(Id.) Plaintiff was not in a management position, and she did

not have any direct reports. (Ex. D, Sherry Spesock Dep. Tr.

(“Spesock Dep.”) (Doc. 36-4) at 32.) Plaintiff was the only

Mandarin speaker in her department. (Ex. C, Liliana Camara Dep.

Tr. (“Camara Dep.”) (Doc. 36-3) at 58.) Plaintiff’s primary job

responsibility was to conduct trainings for the Asian Market

customer service representatives in Mandarin. (Id. at 70.)

Plaintiff had a history of problems with her supervisors.

For example, Plaintiff recorded her conversations with her first

supervisor in the training department because her supervisor was

not making changes in response to Plaintiff’s complaints. (Lee

Dep. (Doc. 34-2) at 10.)

Liliana Camara joined the Market America training

department in November 2013. (Camara Dep. (Doc. 36-3) at 30.) On

August 15, 2016, Camara was promoted to global training manager.

(Id. at 33.) Plaintiff, upon learning that Camara was now the

manager of the training department, asked why she was demoted

and complained to Colbert Trotter, the person who had promoted

Camara. (Lee Dep. (Doc. 34-2) at 14.) However, Plaintiff’s title

remained the same after Camara became manager, and Plaintiff’s

pay remained the same. (Id. at 20.) Trotter allowed Plaintiff to

report to her until Trotter left Market America on November 11,

2016. (Id. at 14–15; Camara Dep. (Doc. 36-3) at 33.)

Plaintiff was resistant to the changes implemented by

Camara and refused to follow Camara’s assignments. For example,

Camara wanted more collaboration within the training department

and asked all trainers to upload their training materials to an

online database. (Camara Dep. (Doc. 36-3) at 48, 55.) Plaintiff

refused to upload the training materials. (Id.) According to

Camara, Plaintiff gave her “a lot of resistance[.]” (Id. at 21.)

Camara had several conversations with Plaintiff about her

job performance, specifically that Plaintiff needed to be more

of a team player. (Lee Dep. (Doc. 34-2) at 22.) Nevertheless,

Plaintiff refused to do the trainings Camara asked her to do,

viewing those tasks as “beneath” her. (Id. at 25.) As the only

Mandarin speaker in the training department, Plaintiff’s refusal

to lead certain trainings impacted the quality of training

employees who primarily spoke Mandarin received because they

were forced to attend a training in their non-native language.

(Camara Dep. (Doc. 36-3) at 20-21.) Plaintiff’s refusal to lead

trainings also impacted the training department because other

employees had to cover for her. (Id. at 43.) Camara was not the

only Market America employee to express concerns about

Plaintiff’s job performance. Sherry Spesock, head of human

resources at Market America, observed Plaintiff in June 2016 and

noted that Plaintiff was “quick to leave” and “not willing to do

any additional work.” (Spesock Dep. (Doc. 36-4) at 8, 19.)

On one occasion, Camara informed Plaintiff that despite

Plaintiff’s refusal to conduct a training, Plaintiff was going

to have to lead the training because Plaintiff was the only

Mandarin speaker on the team, and the trainees needed to be

trained in Mandarin. (Camara Dep. (Doc. 36-3) at 59.) According

to Camara, Plaintiff “reluctantly agreed and planned to end the

class two weeks earlier.” (Id.) Moreover, Camara received

complaints “that the material was rushed and incomplete.” (Id.)

Despite Camara’s conversations with Plaintiff about

Plaintiff’s job performance issues, (id. at 36–37), Plaintiff’s

job performance did not improve. Although Plaintiff never

received a formal written reprimand, (id. at 37), Plaintiff’s

job performance was a “known issue” amongst Camara and Spesock,

(id. at 38).

Plaintiff never reported any issues of discrimination

during her employment. (Ex. 5, Def.’s Answers to Interrogs.

(Doc. 34-5) ¶ 3.) When Camara became Plaintiff’s manager,

Plaintiff told Spesock that Camara had made a comment to

Plaintiff about Camara and Plaintiff’s “cultural differences

. . . that impacted their ability to work together[.]” (Spesock

Dep. (Doc. 36-4) at 41–42.) Spesock told Camara that she would

be required to report to Camara, and Spesock also had a

conversation with Camara about being professional and

“manag[ing] everybody the same[.]” (Id. at 42–43.)

Camara and Spesock had several conversations about

Plaintiff before terminating her. (Camara Dep. (Doc. 36-3) at

76–78.) Regarding their conversations, Camara stated:

We had several -- Sherry and I had several

conversations about the concerns we had with

[Plaintiff’s] attitude. And given that it had been so

consistent, and given that she had refused or

challenged the authority of her last three managers,

myself included, we concluded that it was in the --

the best interest for the company was to not have

[Plaintiff] in the team.

(Id. at 78.) Camara and Spesock met with Plaintiff in Spesock’s

office and told Plaintiff they were terminating her because she

“was not being a team player[.]” (Id. at 79.)

Market America hired Rose Chaffin to replace Plaintiff.

(Id. at 82.) Chaffin was not given the same title as Plaintiff,

but she took on seventy to eighty percent of Plaintiff’s

responsibilities. (Id. at 84, 87.) Spesock also had the

understanding that although no one was hired after Plaintiff’s

termination with the exact title Plaintiff had, Chaffin was

hired to take Plaintiff’s position and job responsibilities.

(Spesock Dep. (Doc. 36-4) at 27–28.)

B. Procedural Background

Plaintiff submitted a charge of discrimination to the Equal

Employment Opportunity Commission (“EEOC”) on March 27, 2018,

alleging discrimination on the basis of age, national origin,

and sex. (Ex. 1, Position Statement (Doc. 34-1) at 2.) Plaintiff

filed a complaint, (Doc. 1), with this court on December 26,

2018, and later filed an amended complaint, (Am. Compl.

(Doc. 4)), on March 22, 2019. The amended complaint alleged the

following claims against Defendant: retaliation under 42 U.S.C.

§ 1981; race discrimination under § 1981, Title VII, and N.C.

Gen. Stat. § 143-422.2; and age and national origin

discrimination under Title VII and N.C. Gen. Stat. § 143-422.2.

(Id. at 12–13.)

Defendant filed a partial motion to dismiss Plaintiff’s

Title VII claims for race discrimination and retaliation and

Plaintiff’s state law claims. (Doc. 13.) Defendant did not move

to dismiss Plaintiff’s § 1981 claims nor Plaintiff’s Title VII

claims for age and national origin discrimination. (Id.) This

court granted Defendant’s motion to dismiss with respect to

Plaintiff’s Title VII claims for racial discrimination and

retaliation, and Plaintiff’s North Carolina public policy claims

for disparate treatment based on race, age, and national origin,

and harassment based on race, and denied with respect to

Plaintiff’s claims for wrongful discharge in violation of North

Carolina public policy based on race, age, and national origin.

(Doc. 18 at 23.)

Defendant then filed a Motion for Summary Judgment,

(Doc. 33), along with a brief in support, (Def.’s Br.

(Doc. 34)). Plaintiff responded, (Pl.’s Mem. in Opp’n to Def.’s

Mot. for Summ. J. (“Pl.’s Resp.”) (Doc. 36)), and Defendant

replied, (Def.’s Reply to Mot. for Summ. J. (“Def.’s Reply”)

(Doc. 40)). Defendant also filed a Motion to Amend, (Doc. 37),

along with a brief in support, (Mem. of Law in Supp. of Def.’s

Mot. to Amend (“Def.’s Mot. to Amend Br.”) (Doc. 38)), to which

Plaintiff responded, (Pl.’s Mem. in Opp’n to Def.’s Mot. to

Amend Mot. for Summ. J. (“Pl.’s Mot. to Amend Resp.”)

(Doc. 41)).

On January 4, 2022, this court entered an Order addressing

Defendant’s argument raised in its reply brief that this court

should strike the declaration of Quilin Cheng. (Doc. 42 at 2.)

Plaintiff filed a response. (Doc. 43.)

On January 20, 2022, this court granted in part Defendant’s

Motion to Amend. (Doc. 44.) This court allowed Plaintiff to file

a response to Defendant’s amended summary judgment motion. (Id.

at 6–7.) Plaintiff filed a response to Defendant’s amended

summary judgment motion to address the retaliation claim. (Pl.’s

Mem. in Opp’n to Def.’s Mot. for Summ. J. as to Pl.’s Claim for

Retaliation (“Pl.’s Retaliation Br.”) (Doc. 45).)

II. STANDARD OF REVIEW

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). This court’s

summary judgment inquiry is whether the evidence “is so one-

sided that one party must prevail as a matter of law.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 252 (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, 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. v. Zenith Radio Corp.,

475 U.S. 574, 586–87 (1986)). 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). “Mere allegations” in

support of a party’s pleadings without “any significant

probative evidence” to support those allegations do not provide

sufficient evidence to allow a reasonable jury to resolve a

dispute in favor of that party. Liberty Lobby, 477 U.S. at 248–

49 (internal quotations omitted) (quoting First Nat. Bank of

Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968)); see

also Brown v. Sears Auto. Ctr., 222 F. Supp. 2d 757, 761

(M.D.N.C. 2002) (“[T]he non-moving party cannot rely solely on

unsupported assertions to demonstrate that a genuine issue of

material fact exists.”).

Put another way, simply showing some “metaphysical doubt as

to the material facts” is not sufficient to establish a genuine

dispute. Matsushita, 475 U.S. at 586. In considering whether a

genuine issue of material fact exists, the court must be careful

not to weigh the evidence or make credibility determinations.

Liberty Lobby, 477 U.S. at 250. Instead, the court must view the

facts in the light most favorable to the non-moving party,

drawing all reasonable inferences in favor of that party. Id. at

255.

III. MOTION FOR SUMMARY JUDGMENT

A. Discrimination Claims

Plaintiff asserts national origin discrimination under

Title VII and the public policy of North Carolina, citing N.C.

Gen. Stat. § 143-422.2, and race discrimination under § 1981.

(Am. Compl. (Doc. 4) at 12.) 3 North Carolina courts, looking to

federal decisions for guidance in establishing evidentiary

standards and principles of law, have applied the burden-

shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). N.C. Dep’t of Corr. v. Gibson, 308 N.C. 131, 136–41,

301 S.E.2d 78, 82–85 (1983); see Hughes v. Bedsole, 48 F.3d

1376, 1383 (4th Cir. 1995). Additionally, Plaintiff’s § 1981

discrimination claim is analyzed under the same framework as

Plaintiff’s Title VII discrimination claim. See Guessous v.

Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016).

The parties have treated all three causes of action together for

purposes of summary judgment, and this court will do the same.

1. Prima Facie Case

There are two ways that Plaintiff can defeat a motion for

summary judgment in a Title VII discriminatory termination case.

Perkins v. Int’l Paper Co., 936 F.3d 196, 206 n.4 (4th Cir.

2019); Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d

310, 318 (4th Cir. 2005); Hill v. Lockheed Martin Logistics

Mgmt., Inc., 354 F.3d 277, 284 (4th Cir. 2004) (en banc),

overruled in part on other grounds by Gross v. FBL Fin. Servs.

3 In Plaintiff’s response brief, she stipulated to a

dismissal of her age discrimination claims under North Carolina

law and Title VII. (Pl.’s Resp. (Doc. 36) at 9 n.3.) Therefore,

this court will consider only national origin discrimination

under Title VII and North Carolina law, and race discrimination

under § 1981.

Inc., 557 U.S. 167 (2009). First, “[a] plaintiff can survive a

motion for summary judgment by presenting direct or

circumstantial evidence that raises a genuine issue of material

fact as to whether an impermissible factor such as race

motivated the employer’s adverse employment decision.” Diamond,

416 F.3d at 318. Where, as here, there is insufficient direct or

circumstantial evidence of discrimination, the plaintiff may

attempt to prove her claim by using the burden-shifting

framework set forth in McDonnell Douglas, 411 U.S. 792 (1973).4

In the present case, Plaintiff’s opposition to Defendant’s

motion for summary judgment proceeds under the McDonnell Douglas

framework. Thus, this court will do the same.

4 Although Plaintiff complained to Spesock in December 2016

that Camara made certain comments about race and national origin

to Plaintiff, (Lee Decl. (Doc. 36-1) ¶¶ 25–27), those comments

are too remote to provide direct or circumstantial evidence of

discrimination. McCray v. Pee Dee Reg’l Transp. Auth., 263 F.

App’x 301, 306 (4th Cir. 2008) (unpublished) (“While isolated

statements can constitute direct evidence of discrimination, the

statements must be contemporaneous to the adverse employment

action.”); Loveless v. John’s Ford, Inc., 232 F. App’x 229, 234

(4th Cir. 2007) (unpublished) (finding direct evidence of

discrimination where the employer made comments about the

employee’s age during the conversation in which the employee was

terminated). The most concerning comment alleged—that Camara

would “take care of every Hispanic in the company[,]” (Lee Decl.

(Doc. 36-1) ¶ 12 (internal quotation marks omitted)), is not

probative of discrimination because Plaintiff’s replacement was

part of the same protected class as Plaintiff. (Spesock Dep.

(Doc. 36-4) at 33 (“Ms. Lee was replaced as a corporate trainer

by Rose, a 54-year-old Chinese female[.]”).)

To establish a prima facie case of wrongful termination

under Title VII, Plaintiff must establish:

(1) she is a member of a protected class; (2) she

suffered adverse employment action; (3) she was

performing her job duties at a level that met her

employer’s legitimate expectations at the time of the

adverse employment action; and (4) the position

remained open or was filled by similarly qualified

applicants outside the protected class.

Hill, 354 F.3d at 285. Here, Defendant does not dispute that

Plaintiff has satisfied the first two elements: Plaintiff is

Asian and therefore a member of a protected class, and she was

terminated from her employment. (Def.’s Br. (Doc. 34) at 16.)

As to the third element of a prima facie case of Title VII

discrimination, the required showing that a plaintiff was

performing up to the employer’s legitimate expectations is a

“relatively easy test[,]” Rishel v. Nationwide Ins. Co., 297 F.

Supp. 2d 854, 870 (M.D.N.C. 2003) (internal quotation marks

omitted) (quoting Young v. Lehman, 748 F.2d 194, 197 (4th Cir.

1984)), although “not a hollow one,” Bibichev v. Triad Intern.

Maint. Corp., 951 F. Supp. 2d 839, 846 (M.D.N.C. 2013).

Defendant argues that Plaintiff failed to perform her job

to the legitimate expectations of Defendant. (Def.’s Br.

(Doc. 34) at 16–21.) Plaintiff disagrees for several reasons.

(Pl.’s Resp. (Doc. 36) at 11.) First, Plaintiff argues that

Defendant never alleged Plaintiff was terminated for poor

performance but rather alleged she was terminated for not being

a team player. (Id.) This argument fails because regardless of

semantics, Defendant is plainly arguing Plaintiff failed to meet

its legitimate expectations of job performance. (Def.’s Br.

(Doc. 34) at 16.)

Second, Plaintiff argues that Defendant did not follow its

employee handbook regarding written warnings for poor

performance. (Pl.’s Resp. (Doc. 36) at 12.) This argument also

fails because the guidelines for handling employee misconduct

are discretionary. (Ex. F, Market America Employee Handbook

(“Handbook”) (Doc. 36-6) at 2 (“The following guidelines may be

applied at the discretion of Market America’s management[.]”)

(emphasis added).) “[N]o system is perfect” regarding employee

discipline, Bibichev, 951 F. Supp. 2d at 849, and Plaintiff has

not produced evidence tending to show that Defendant’s

expectations were not legitimate.

Third, Plaintiff argues that she was not the only one to

perceive her job performance as satisfactory, citing the

declaration of Qilin Cheng. (Pl.’s Resp. (Doc. 36) at 12–14.)

For the reasons discussed in this court’s January 20, 2022

Order, (Doc. 44), the declaration of Qilin Cheng will not be

considered by this court.

In this case, Defendant has presented substantial evidence

that at the time of Plaintiff’s termination, Plaintiff was not

meeting Defendant’s legitimate expectations. Plaintiff created

the potential for significant harm to the company by failing to

adequately train at least seven new employees whose first

language was not English. (Camara Dep. (Doc. 36-3) at 42–43.)

These employees either had to attend a training in English

because Plaintiff refused to conduct the trainings in Mandarin,

or they attended a training led by Plaintiff in Mandarin, but

there were “a lot of concerns about how the quality of that

training was.” (Id. at 20–21.) These concerns were not

unfounded; Camara relied on the statements of a bilingual

employee who attended Plaintiff’s training and had also attended

the same training in English and reported to Camara that

Plaintiff’s training was rushed and incomplete. (Id. at 25, 59.)

Plaintiff fails to respond to these allegations about refusing

to conduct trainings or that the trainings were not conducted

properly.

Plaintiff also refused to follow the demands of her

supervisor to upload her training materials to the shared

training database. (Id. at 56.) Again, Plaintiff offers no

explanation in response to this allegation. Overall, Plaintiff

was consistently resistant to Defendant’s demands – that she

conduct trainings in Mandarin and follow her department’s

protocol for uploading her training materials. (Id. at 21–22,

56.) Plaintiff contends she “was always a team player . . .

[and] never resisted the changes Camara wanted to make in the

training department once she became my manager. Rather, Camara

did not understand how the training department functioned

because she lacked experience.” (Lee Decl. (Doc. 36-1) ¶ 35.) It

was especially important for Plaintiff to conduct the trainings

her supervisor asked her to lead because Plaintiff was the only

employee in the training department who spoke Mandarin. (Camara

Dep. (Doc. 36-3) at 58.) Defendant’s evidence is further

supported by Plaintiff’s own statements acknowledging she was

aware that her employer did not view her as a team player and

that she had refused to conduct certain trainings that were

“beneath” her. (Lee Dep. (Doc. 34-2) at 22, 25.) The McDonnell

Douglas burden-shifting method of proof requires evidence

sufficient to support a finding of discrimination. Where

Plaintiff does not rebut her employer’s assertion of

expectations, no inference of discrimination arises. See Sadeghi

v. Inova Health Sys., 251 F. Supp. 3d 978, 993 (E.D. Va. 2017)

(citing Armstrong v. Index Journal Co., 647 F.2d 441, 448 (4th

Cir. 1981) (Where “[t]he record facts conclusively show that

plaintiff’s supervisors perceived him as insubordinate and

disruptive, . . . plaintiff cannot establish that he was

satisfying defendant’s legitimate expectations at the time of

his discharge.”); Spease v. Pub. Works Comm’n of City of

Fayetteville, 369 F. App’x 455, 456 (4th Cir. 2010)

(unpublished) (concluding that plaintiff failed to satisfy the

third prong because he was insubordinate).

Moreover, that Plaintiff received positive performance

reviews at some point during her employment is not sufficient to

establish she was meeting her employer’s legitimate

expectations. “It is the ‘employer’s legitimate expectations at

the time of the adverse employment action’ that matters.”

Bibichev, 951 F. Supp. 2d at 847 (emphasis in original) (quoting

Hill, 354 F.3d at 285). The probative value of those performance

reviews is reduced by the fact that none of those reviews were

conducted by Plaintiff’s most recent supervisor. Plaintiff’s two

most recent performance reviews, although positive, were

completed by a prior supervisor. (Ex. B, Job Performance

Evaluations (Doc. 36-2); Spesock Dep. (Doc. 36-4) at 10–13.)

Significantly, the person who completed those reviews, Sherry

Spesock, noted in her deposition that she could not “give a true

evaluation for [Plaintiff] in the interim” and that Spesock’s

personal observation of Plaintiff was not positive in nature.

(Spesock Dep. (Doc. 36-4) at 17, 19.)

In contrast to the abundance of evidence presented by

Defendant, Plaintiff has not presented any evidence—other than

her own self-serving statements—to dispute these events. (Lee

Decl. (Doc. 36-1).) It is well-established that a plaintiff’s

“perception of [herself] . . . is not relevant. It is the

perception of the decision maker which is relevant.” Smith v.

Flax, 618 F.2d 1062, 1067 (4th Cir. 1980). Plaintiff argues that

this issue should survive summary judgment because she was not

alerted about her deficient performance. (Pl.’s Resp. (Doc. 36)

at 14–15 (analogizing the facts of this case to Murry v. Jacobs

Tech., Inc., No. 1:10-cv-771, 2012 WL 1145938 (M.D.N.C. Apr. 5,

2012)).) However, this court is not persuaded by the cases cited

by Plaintiff for two reasons. First, the Market America Employee

Handbook is clear that “Market America may terminate an

employee’s employment . . . with or without notice, at any time

for any reason.” (Handbook (Doc. 36-6) at 2.) One example of

conduct that can lead to immediate dismissal is insubordination.

(Id.) The Handbook further states that “the Company may, under

appropriate circumstances, take corrective action, other than

immediate dismissal.” (Id. at 3 (emphasis added).) Second, the

deposition testimony of Camara indicates that Camara did have

conversations with Plaintiff regarding issues with her job

performance. (See Camara Dep. (Doc. 36-3) at 37.) This accords

with the Handbook’s policy of verbal warnings prior to

dismissal. (See Handbook (Doc. 36-6) at 3.)

Therefore, this court finds that Plaintiff has failed to

demonstrate that at the time of her termination she was meeting

her employer’s legitimate expectations, and Defendant is

entitled to summary judgment on this basis.5

2. Legitimate, Non-Discriminatory Reason

Even if Plaintiff could establish her prima facie case

under McDonnell Douglas, she has not demonstrated that she could

survive the remainder of the burden-shifting test. Once a prima

facie case has been shown, the burden shifts to the defendant

“to articulate a legitimate, nondiscriminatory reason for the

adverse employment action.” Lettieri v. Equant Inc., 478 F.3d

640, 646 (4th Cir. 2007) (internal quotation marks omitted)

(quoting Hill, 354 F.3d at 285). The burden on a defendant at

this stage is one of production, not persuasion, and the court

5 This court notes that genuine issues of material fact

likely exist as to the fourth element of a prima facie case of

discrimination using the McDonnell Douglas framework. Defendant

argues that Plaintiff was not replaced by an individual outside

of her protected class because Rose Chaffin, an Asian female,

replaced Plaintiff. (Def.’s Br. (Doc. 34) at 21–24.) On the

other hand, Plaintiff argues her position was eliminated and no

one was ever hired to replace her. (Pl.’s Resp. (Doc. 36) at 15

(citing Spesock Dep. (Doc. 36-4) at 30).) Thus, a genuine issue

of material fact remains as to whether Plaintiff’s position

remained open or was filled by someone outside the protected

class. Because Chaffin did not take on 100 percent of

Plaintiff’s job, (Camara Dep. (Doc. 36-3) at 87), this court

does not find the fact Chaffin was hired to establish as a

matter of law that someone in the protected class replaced

Plaintiff. Ultimately, this court need not dwell on this element

in light of this court’s reasoning as to the third element of

the McDonnell Douglas framework and the additional analysis that

follows, and therefore this court will assume that this element

has been met.

is not permitted to make a credibility assessment. St. Mary’s

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

Defendant argues that it terminated Plaintiff because she

“was not a team player.” (Def.’s Br. (Doc. 34) at 25.) Plaintiff

does not argue against a finding that Defendant has stated a

legitimate, non-discriminatory reason under McDonnell Douglas.

(See Pl.’s Resp. (Doc. 36) at 16.) Therefore, this court finds

that Defendant has met its burden of producing a legitimate,

non-discriminatory reason for terminating Plaintiff.

3. Pretext

Because Defendant has provided a legitimate explanation for

Plaintiff’s termination, the burden shifts back to Plaintiff to

prove by a preponderance of the evidence that Defendant’s

articulated reason is mere pretext. McKiver v. Gen. Elec. Co.,

11 F. Supp. 2d 755, 758 (M.D.N.C. 1977). “The final pretext

inquiry ‘merges with the ultimate burden of persuading the court

that [the plaintiff] has been the victim of intentional

discrimination,’ which at all times remains with the

plaintiff.” Merritt v. Old Dominion Freight Line, Inc., 601 F.3d

289, 294 (4th Cir. 2010) (alteration in original) (quoting Tex.

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)).

Thus, the question is whether Plaintiff has presented or

forecasted evidence that Defendant’s reason was not the true

reason, but was a mere pretext for discrimination, sufficient to

survive summary judgment. See Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 143 (2000).

Here, Plaintiff’s evidence of pretext is that Camara “set

out on a path to terminate [Plaintiff].” (Pl.’s Resp. (Doc. 36)

at 17.) Specifically, Plaintiff alleges that Camara “stripped

[Plaintiff] of her MPCP training responsibilities,” “began to

make unreasonable demands of [Plaintiff]” such as requiring

Plaintiff to work late hours, and “accused [Plaintiff] of

‘dumping UFO Services Training on [Camara]’ despite the fact

that [Plaintiff] had been told to cease conducting” that

training. (Id.) Plaintiff further alleges that Camara described

Plaintiff and Camara’s work issues as “cultural differences[,]”

implying “that the racial differences between [Camara] and

[Plaintiff] were a root source of Camara’s inability to work

with her.” (Id. at 17–18 (internal quotation marks omitted).)

There are several problems with Plaintiff’s evidence.

First, Plaintiff’s evidence of pretext is supported only by her

own statements. Plaintiff’s self-serving assessment of her own

job performance and the reason for her termination is not enough

to carry her burden of establishing pretext. See Evans v. Techs.

Applications & Serv. Co., 80 F.3d 954, 959, 960 (4th Cir. 1996)

(finding the plaintiff’s “unsubstantiated allegations and bald

assertions concerning her own qualifications and the

shortcomings of her co-workers” insufficient to establish

pretext at summary judgment for a claim of sex discrimination by

failure to promote); see also Goldberg v. B. Green & Co., 836

F.2d 845, 848 (4th Cir. 1988) (plaintiff’s own opinions and

conclusory allegations do not have sufficient “probative force

to reflect a genuine issue of material fact”).

Second, only one of those allegations can be considered as

potential evidence of pretext: Camara’s statement to Plaintiff

that they could not work well together because of “cultural

differences.” The other allegations—that Camara took away some

of Plaintiff’s job responsibilities and required Plaintiff took

work long hours—are not tied to any discriminatory motive.

“Title VII does not protect employees from all unfair or

unprofessional treatment, but only from intentional

discrimination on the basis of ‘certain, discreet

classifications.’” Porter v. Nat’l Con-Serv, Inc., 51 F. Supp.

2d 656, 660 (D. Md. 1998) (quoting Rose-Maston v. NME Hosp.,

Inc., 133 F.3d 1104, 1109 (8th Cir. 1998)). As a matter of law,

Camara’s isolated statement regarding “cultural differences,”

which occurred about eight months prior to Plaintiff’s

termination, (see Camara Dep. (Doc. 36-3) at 96 (noting

Plaintiff believed the “cultural differences” comment was made

in December 2016)), is insufficient evidence of pretext to

survive summary judgment. Although isolated statements can

constitute evidence of discrimination, such statements must be

contemporaneous to the adverse employment action. Compare

McCray, 263 F. App’x at 306 (finding isolated statements from

the defendant too remote from termination of black executive

director to serve as evidence of discrimination), with Loveless,

343 F. App’x at 234 (discriminatory statements regarding the

plaintiff’s age occurring during the plaintiff’s termination

meeting were evidence that the plaintiff’s age was a motivating

factor in the defendant’s decision to terminate the plaintiff).

Here, although Camara was a decisionmaker, Plaintiff does not

contend that this statement was made contemporaneous to her

termination.

Defendant has provided a legitimate reason for Plaintiff’s

termination that Plaintiff cannot dismiss as pretextual. Summary

judgment is appropriate here because “the non-moving party

cannot rely solely on unsupported assertions to demonstrate that

a genuine issue of material fact exists.” Brown v. Sears Auto.

Ctr., 222 F. Supp. 2d 757, 761 (M.D.N.C. 2002).

B. Section 1981 Retaliation Claim

Plaintiff argues that Defendant retaliated against her in

violation of § 1981 when it terminated her after she complained

to her supervisor that Camara discriminated against Plaintiff

because of Plaintiff’s race. (Pl.’s Retaliation Br. (Doc. 45) at

1–3.) Plaintiff argues that after she complained, Camara began

retaliating against her, and ultimately fired her. (Id. at 3.)

“A plaintiff may prove that an employer took action with

. . . retaliatory intent through direct evidence or through the

burden-shifting framework of McDonnell Douglas.” Strothers v.

City of Laurel, 895 F.3d 317, 327 (4th Cir. 2018) (citation

omitted). To establish a prima facie case of § 1981 retaliation

under the McDonnell Douglas framework, an employee must show

“(1) she engaged in a protected activity; (2) the employer acted

adversely toward her; and (3) there was a causal connection

between the protected activity and the asserted adverse action.”

Id. (internal quotation marks omitted) (quoting Ziskie v.

Mineta, 547 F.3d 220, 229 (4th Cir. 2008)). If the employee is

able to meet her burden of showing a prima facie case, “[t]he

burden then shifts to the [employer] to show that its

purportedly retaliatory action was in fact the result of a

legitimate non-retaliatory reason.” Foster v. Univ. of Md.-E.

Shore, 787 F.3d 243, 250 (4th Cir. 2015). “If the employer makes

this showing, the burden shifts back to the plaintiff to rebut

the employer’s evidence by demonstrating that the employer’s

purported nonretaliatory reasons were not its true reasons, but

were a pretext for discrimination.” Id. (internal quotation

marks and citation omitted).

This court finds summary judgment should be granted as to

Plaintiff’s § 1981 retaliation claim. Even if Plaintiff has

established a prima facie case of retaliation, Plaintiff has

failed to produce evidence demonstrating Defendant’s stated

reason for terminating her was pretextual. Plaintiff may prove

pretext by showing that the alleged nondiscriminatory

“explanation [for termination] is unworthy of credence or by

offering other forms of circumstantial evidence sufficiently

probative of [retaliation].” Lloyd v. New Hanover Reg’l Med.

Ctr., No. 7:06-CV-130-D, 2009 WL 890470, at *5 (E.D.N.C. Mar.

31, 2009), aff’d, 405 F. App’x 703 (4th Cir. 2010) (internal

quotation marks omitted) (quoting Mereish v. Walker, 359 F.3d

330, 336 (4th Cir. 2004)). For the same reasons discussed supra

Part III.A.3, Plaintiff has not done so. For this reason,

Plaintiff’s retaliation claim must fail. Accordingly, summary

judgment should be granted in favor of Defendant as to

Plaintiff’s § 1981 retaliation claim.

IV. CONCLUSION

For the reasons set forth above, this court finds that

Defendant’s Motion for Summary Judgment, (Doc. 33), will be

granted.

IT IS THEREFORE ORDERED that Defendant’s Motion for Summary

Judgment, (Doc. 33), is GRANTED.

A judgment reflecting this Memorandum Opinion and Order

will be entered contemporaneously herewith.

This the 16th day of February, 2022.

LA; Kir

Lb Uinm L. 0S xX

ss United States District Jufide

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