AIKENS v. HERBALIFE INTERNATIONAL OF AMERICA, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

CAMERON J. AIKENS, )

)

Plaintiff, )

)

v. ) 1:23-cv-757

)

HERBALIFE INTERNATIONAL OF )

AMERICA, INC. )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Before this court is Defendant’s Motion for Summary

Judgment, (Doc. 31), Defendant’s Motion to Seal, (Doc. 33), and

Defendant’s Motion to Strike, (Doc. 43). For the reasons stated

herein, Defendant’s Motion to Strike will be granted in part and

denied in part, Defendant’s Motion for Summary Judgment will be

granted, and Defendant’s Motion to Seal will be denied.

I. FACTUAL BACKGROUND

At summary judgment, “[t]he evidence of the non-movant is

to be believed, and all justifiable inferences are to be drawn

in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255(1986). “A party asserting that a fact cannot be or is

genuinely disputed must support the assertion by” either “citing

to particular parts of materials in the record” or by “showing

that the materials cited do not establish the absence or

presence of a genuine dispute, or that an adverse party cannot

produce admissible evidence to support the fact.” Fed. R. Civ.

P. 56(c)(1).1

This dispute revolves around Plaintiff’s termination of

employment with Defendant Herbalife International of America,

Inc., a company that manufactures food and supplement products.

(Pl.’s Ex. 4, Ted Collins Dep. (Doc. 39-4) at 10.)2 Plaintiff was

hired by Defendant on October 10, 2016. (Def.’s Ex. 1, Aikens

Offer Letter (Doc. 34-1) at 2.) He was twice promoted, once on

November 22, 2017, (Def.’s Ex. 2, Aikens Transfer Letter (Doc.

1 It is concerning to this court that most of the evidence

before it has been submitted without authentication and in some

cases, without a clear basis for admissibility or a finding of

relevance. However, as explained by another court in this

district in Slate v. Byrd, the 2010 amendments to Federal Rule

of Civil Procedure 56 “eliminated the unequivocal requirement

that documents submitted in support of a summary judgment motion

must be authenticated.” Slate v. Byrd, No. 1:09-cv-852, 2013 WL

1103275, at *2 n.5 (M.D.N.C. March 15, 2013), report and

recommendation adopted as modified, No. 1:09-cv-852, 2013 WL

2474336 (M.D.N.C. June 10, 2013) (citation omitted). “Under the

new rule, if the opposing party believes that [the cited]

materials cannot be presented in a form that would be admissible

in evidence, that party must file an objection.” Id. (alteration

in original) (internal quotation marks and citation omitted).

Accordingly, in the absence of objections, this court will

consider all evidence submitted.

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.

34-2)), and again on June 14, 2018, to a “Quality Control

Chemistry Lab Technician, (Def.’s Ex. 3, Position Transfer

Letter (Doc. 34-3) at 2).

Plaintiff, as a Chemistry Lab Technician, was responsible

for “performing routine physical analysis, compendial wet

chemical testing as well as instrumental methods including

automated titrimetric methods, spectrometric techniques and

assisting chemists as required.” (Def.’s Ex. 5, Job Description

(Doc. 34-5) at 2.) He was required to “provide detailed written

observations to management” and to “[i]nteract effectively with

co-workers, management and vendors in order to resolve

problems.” (Id.) Plaintiff was further required to comport with

Herbalife’s “Good Documentation Practices” (“GDP”), (see Def.’s

Ex. 8, Herbalife Internal Emails (Doc. 34-8) at 16 (“I reminded

[Plaintiff] he is going against our GDP . . . .”)), which

requires data entries to be “clearly written” and “documented at

the time of performance/verification.” (Def.’s Ex. 6, Good

Documentation Practices (Doc. 34-6) at 2.)

From late 2019 through 2021, Plaintiff’s work product and

behavior were the subject of numerous complaints. The first

documented complaint was on December 19, 2019, when Plaintiff’s

direct supervisor, Tanya Martin, received an email from David

O’Brien, Supervisor of the Quality Control Chemistry Lab.

(Def.’s Ex. 8, Herbalife Internal Emails (Doc. 34-8) at 2.)

O’Brien relayed that

a reviewer [was] stressed by the recording of a

Dextrose Equivalent completed by [Plaintiff]. . . .

This method has been completed by [Plaintiff] 4 times

recently with reviewers informing [Plaintiff] of the

requirements for the test and the issues caused by

not conducting the test properly. . . . Many questions

have arisen about the legitimacy of the testing and

the reviewers are uncomfortable reviewing tests

conducted in this manner even with manage approval.

(Id.)

In response, Martin met with Plaintiff on February 5, 2020.

(Id. at 3.) According to Martin’s notes, she “discussed with

[Plaintiff] that the expectations for his notebooks need to be

in good GMP3 order. The write up needs to be consistent and make

sense. His data needs to be in chronological time stamp order.

If I see any examples of data out of order, HR will be

notified.” (Id.)

On March 11, 2020, Martin again received an email from

O’Brien, who reported that he “received a complaint that

[Plaintiff’s] write up for Dextrose Equivalent was back dated in

several areas.” (Id. at 7.) Martin forwarded this email to two

Quality Control Department managers: Piyush Purohit and Corey

3 “GMP” is Herbalife’s shorthand for “Good Manufacturing

Practices.” (See Def.’s Ex. 6, Good Documentation Practices

(Doc. 34-6) at 2.)

Eminger. (Id. at 6.) On March 13, 2020, Martin received an email

from an Herbalife employee (name redacted) that stated: “I have

had several complains [sic] on [Plaintiff] today. . . . People

are just saying that everyone is busting butt here but trying to

get things done and he is just taking his time doing

everything.” (Def.’s Ex. A, Internal Emails (Doc. 36-1) at 10.)

Martin again met with Plaintiff on April 28, 2020. (Def.’s

Ex. 8, Herbalife Internal Emails (Doc. 34-8) at 8.) According to

her notes, they discussed, among other things, that “[Plaintiff]

will start lab audits and cleaning up today and complete this

every Tuesday and Thursday using the check list he provided.”

(Id.) She also “asked [Plaintiff] to send [her] daily emails of

which methods he ran and how many samples he tested in each

sample.” (Id.) Martin also “mentioned that chit chat in the lab

can be distracting and [Plaintiff] should be sure he is focusing

on getting his work done first.” (Id. at 9.) Martin noted that

Plaintiff “asked about the next level above a [Quality Control]

tech,” which Martin told him was a “senior [Quality Control]

tech,” a role that she noted, “[Plaintiff] would like to work

toward.” (Id.) Martin forwarded details of this meeting to

Eminger. (Id. at 8.)

On May 20, 2020, Martin and Plaintiff had another one-on-

one meeting. (Id. at 11.) Martin followed up on the series of

expectations she laid out for Plaintiff in their April 28, 2020,

meeting, asking Plaintiff why “the lab cleanliness audits [are]

not being done as discussed,” why Plaintiff has “only sent a few

daily emails with tasks and test[s] he has completed for the

day” despite being “asked almost a month ago to send them every

day,” and further, “why he had not done QCS failure forms for 2

QCS failures he had recently” because “failing to report a QCS

OOS is a problem and goes against compliance procedures.” (Id.)

Martin also again reminded Plaintiff “to be mindful of his chit

chatting and phone usage in the lab.” (Id.) Finally, Martin

let [Plaintiff] know that if he wants to be considered

for a promotion to a Sr Chemistry Tech he will have

to meet/exceed and maintain the expectations out

lined above along with his usual job duties for an

extended length of time(many months). [She] also

shared that if the above expectations are not met HR

and Corey [(Eminger)] would be notified.

(Id.) In Plaintiff’s deposition, when asked if he remembered

Martin telling him this, he responded “[y]es.” (Def.’s Ex. 9,

Aikens Dep. Excerpts (Doc. 34-9) at 11.) When asked if he did

“meet or exceed the expectations outlined in [the] email,”

Plaintiff replied: “Yes. The senior manager, Piyush [(Purohit)],

made me a subject matter expert in . . . every test. . . . If I

was incompetent, he wouldn’t have made me that or if Tanya

[(Martin)] disagreed, she would have given pushback.” (Id. at

13.)

On June 16, 2020, Martin again received an email from

O’Brien regarding Plaintiff’s work product. (Def.’s Ex. 8,

Herbalife Internal Emails (Doc. 34-8) at 12–13.) O’Brien

explained that

[Plaintiff]’s book . . . pages 98 and 99 have errors

which are showing inconsistencies in the write up.

The biggest issue is writing the number “2” in

differing ways. This makes the write up inconsistent

and should be corrected. The “2” was flagged for a

write over which is evident. The response to the

question of how the number “2” was written was most

inappropriate “Lmao”4 that response is not acceptable

in any form. There appears to be intent to be

inconsistent in the write up . . . .”

(Id. at 12.)

Martin met with Plaintiff on June 18, 2020, to discuss

O’Brien’s concerns. (Id.) Martin discussed with Plaintiff that

“being consistent with his numbers and penmanship is expected.”

(Id.) She also “explained to him that his comments were

unprofessional,” and that “his comments need to be professional

no matter where he writes them and he said he understood.” (Id.)

On November 11, 2020, Martin noted that “[Plaintiff] had

cartoons on the computer screen” while working in the lab. (Id.

at 15.) Martin “reminded him videos are not to be played in the

lab on the computer or phones.” (Id.) According to Martin’s

notes, “Henry” had also “noted [Plaintiff] had videos pulled

4 LMAO is shorthand for “laughing my ass off.” (Def.’s Br.

(Doc. 34) at 8.)

upon the screen 11/06/20.” (Id.) Also on November 11, Martin

received an email from an employee (name redacted), who relayed

that after telling a co-worker to complete a test assigned to

Plaintiff, Plaintiff said “give my methods to her again and

you’ll see what will happen or you won’t like what will happen,”

which made the employee “very uncomfortable.” (Def.’s Ex. A,

Internal Emails (Doc. 36-1) at 5.)

On December 3, 2020, Martin noted that Plaintiff’s

“handwriting continues to be sloppy and illegible.” (Def.’s Ex.

8, Herbalife Internal Emails (Doc. 34-8) at 16.) She reminded

him “he is going against our [Good Documentation Practices] SOP

to have illegible entries.” (Id.) On December 10, 2020, Martin

noted that “2nd shift wouldn’t be reviewing [Plaintiff’s]

packets. He has too many errors and doesn’t but [sic] his data

in order.” (Def.’s Ex. A, Internal Emails (Doc. 36-1) at 3.)

In “late 2020 or early 2021,” HR was notified of “an

incident when employees observed [Plaintiff] making what

appeared to be gang signs with his fingers during a department

team meeting.” (MaryAnn Atkins Decl. (Doc. 36) ¶ 4.) According

to HR Manager, MaryAnn Atkins, the incident “was addressed with

[Plaintiff], and no further employment action by Human Resources

was necessary.” (Id.) In an email from Senior Director of

Quality Control, Ted Collins, to Atkins, Collins relayed that

“[Plaintiff] indicated . . . he was not [making gang signs] and

was instead fidgeting.” (Def.’s Ex. A, Internal Emails (Doc. 36-

1) at 2.)

In June 2021, HR was informed of reports that “[Plaintiff]

had engaged in other inappropriate behavior towards female

coworkers.” (MaryAnn Atkins Decl. (Doc. 36) ¶ 5.) According to

Atkins, two female employees reported that “while walking

towards [them] in a hallway, [Plaintiff] gestured to in between

his legs,” and those female employees “could see [Plaintiff’s]

erect penis through his pants.” (Id. at 6.) Plaintiff was

subsequently put on leave while HR investigated the incident.

(Id.) According to Atkins, the investigation revealed “other

allegations of [Plaintiff’s] inappropriate and disruptive

behavior,” and that “at least one female coworker had even

decided to leave the team because of [Plaintiff’s] behavior.”

(Id. ¶ 7.) Ultimately, however, HR was “unable to substantiate

the female employees’ allegations to a point where [HR] believed

disciplinary action was warranted,” although Collins and Atkins

“met with [Plaintiff] to stress the absolute imperative that

[he] conduct himself appropriately in the workplace going

forward.” (Id. ¶¶ 12–13.)

A compilation of undated notes from anonymous colleagues

outlines a series of complaints about Plaintiff’s work ethic and

behavior. One comment reads: “The Youtube is a daily thing for

him now and it has been for a while now. (sometime more than 2

hours a day)[.] . . . Its watching videos and cartoons. Work a

little, play around on the computer a lot . . . .” (Def.’s Ex.

A, Internal Emails (Doc. 36-1) at 11.) Another comment reads:

“He made the statement: She must be bleeding (referring that the

attitude I had was coming from me on being on my monthly).”

(Id.) Another reads: “[Plaintiff’s] sexual discussions that he

has in the lab is very disturbing. He has made comments about

how we should all leave our husbands/boyfriends and get with him

and how he can make us happy.” (Id. at 12.)

Plaintiff, in his Response in Opposition to Summary

Judgment, states: “As the record reflects every allegation of

inappropriate behavior by the Plaintiff was investigated and

they were all unfounded.” (Pl.’s Resp. (Doc. 39) at 11.) He does

not cite to any evidence to support this assertion. It is

uncontroverted that HR was unable to substantiate the female

employees’ allegations against Plaintiff with respect to the

incident where he allegedly gestured to his genitals. However,

Plaintiff does not put forth any evidence to contradict

Defendant’s evidence that 1) his write-ups were often illegible

and inaccurate, 2) he watched videos in the lab, 3) he wrote

“LMAO” in his workbook, 4) he made comments to his colleagues

that made them uncomfortable, and 5) he was required to have

one-on-one coaching with his supervisor because of these issues.5

In either 2020 or 2021, Plaintiff applied for a higher

position at Herbalife, but a different applicant, a White woman,

received the position. (Def.’s Ex. 9, Aikens Dep. Excerpts (Doc.

34-9) at 4–5; Corey Eminger Decl. (Doc. 37) ¶ 10.) In

Plaintiff’s deposition he said Corey Eminger told him that he

did not receive the promotion because “[Eminger] didn’t like the

way [Plaintiff’s] handwriting looked.” (Def.’s Ex. 9, Aikens

Dep. Excerpts (Doc. 34-9) at 6.) Eminger stated that he told

Plaintiff he “could not approve someone for promotion that was

not responding to feedback or coaching from his supervisor.”

5 Defendant submits 2019 and 2020 yearly performance

evaluations for Plaintiff. (See Def.’s Ex.7, 2019 Performance

Review (Doc. 34-7); Def.’s Ex. A, 2020 Performance Review (Doc.

37-1).) Although they are generally positive, the 2020 review

states that Plaintiff “has been coached multiple times this year

on the quality of his write ups and GDP . . . . A few behavior

issues have been addressed this year that were causing

distractions for the team.” (Def.’s Ex. A, 2020 Performance

Review (Doc. 37-1) at 9.) Additionally, in his deposition,

Collins stated: “We wo[u]ld normally not document all

performance issues in anyone’s performance review.” (Pl.’s Ex.

4, Ted Collins Dep. (Doc. 39-4) at 17.) Plaintiff does not

dispute that he was coached on the accuracy and legibility of

his write-ups. Nor does Plaintiff dispute that he engaged in

disruptive behavior in the lab, such as watching videos.

Plaintiff only argues that “every allegation of inappropriate

behavior by the Plaintiff was . . . unfounded,” although does

not cite to the record to support such a dispute of fact. (Pl.’s

Resp. (Doc. 39) at 11.)

(Corey Eminger Decl. (Doc. 37) ¶ 12.) Further, Eminger relayed

that Martin “decided that the other applicant was more qualified

for the position.” (Id. ¶ 10.) Plaintiff, in his deposition,

also said Martin told him the other applicant was “a better,

qualified candidate.” (Def.’s Ex. 9, Aikens Dep. Excerpts (Doc.

34-9) at 12–13.)6

In 2021, Defendant hired Data Dome, Inc. (“Data Dome”), a

company that, according to its President, Lisa Bouchard,

“conducts, among other things, organizational training and

development programs designed to help its clients make better

hires, develop leaders into their full potential, and build

stronger teams.” (Lisa Bouchard Decl. (Doc. 35) ¶¶ 3–4; see also

6 Plaintiff submitted an affidavit from his former co-worker

Johnna Burns, in which she states that “[Plaintiff] was passed

over for promotions several times. [He] applied for a Chem I

role, but was denied for lack of experience. Management hired a

Caucasian woman without experience for the same role.” (Pl.’s

Ex. 2, Johnna Burns Aff. (Doc. 39-2) ¶¶ 10–11). Defendant asks

this court to disregard these statements arguing they are “not

based on personal knowledge” as required by Federal Rule of

Civil Procedure 56(c)(4), which states that “[a]n affidavit or

declaration used to support or oppose a motion must be made on

personal knowledge.” (Def.’s Reply (Doc. 42) at 3–4.) Defendant

argues that there is nothing in the record to support how Burns,

who was “not a member of management, would have any personal

knowledge” as to this employment decision. (Id. at 4.) This

court agrees. Plaintiff has provided no evidence that Burns

would be personally aware of the qualifications of the other

applicant or what considerations went into the employment

decision. This court will disregard paragraphs ten and eleven of

Burns’s affidavit.

Def.’s Ex. 10, Ted Collins Dep. Excerpts (Doc. 34-10) at 5.)

Data Dome conducted a nine-month program at Herbalife designed

to address “uncooperative teamwork between first and second

shift,” and “individuals . . . making assumptions and

presenting them as facts.” (Pl.’s Ex. 4, Ted Collins Dep. (Doc.

39-4) at 42.) Throughout the program, Plaintiff appeared

“disinterested and disengaged.” (Lisa Bouchard Decl. (Doc. 35)

¶ 11.) He “regularly arrived late to the sessions, would not sit

with the group, and would not participate.” (Id.) The nine-month

program culminated on November 4th and 5th with a widely

attended two-day presentation. (Pl.’s Ex. 4, Ted Collins Dep.

(Doc. 39-4) at 51–52; Corey Eminger Decl. (Doc. 37) ¶ 18; Lisa

Bouchard Decl. (Doc. 35) ¶ 9.)

On November 4, 2021, the first day of the Data Dome final

presentation, it is undisputed that Plaintiff either made a

statement or asked a question about promotions (“Data Dome

incident”). However, the parties dispute what Plaintiff said and

how he said it.

Plaintiff stated in his deposition:

I expressed at the meeting . . . how come minorities

don’t get the same opportunity to move up as

Caucasians based on the work history and from what I

was told when people expressed their concerns to me.

. . . I said it to Lisa Brouchard [sic]. . . . She

ignored the question and proceed [sic] and skipped

over me because we was going in a circle asking

questions from left to right.

(Def.’s Ex. 9, Aikens Dep. Excerpts (Doc. 34-9) at 7.)7 Plaintiff

has submitted evidence supporting this recollection of the Data

Dome incident. In an affidavit, Plaintiff’s co-worker, Johnna

Burns, stated that she “was present during the Data Dome Meeting

on November 4, 2021 when [Plaintiff] openly asked questions

about the validity of the promotional process and specifically

whether minorities were being passed over for promotions because

of their race.” (Pl.’s Ex. 2, Johnna Burns Aff. (Doc. 39-2) ¶

3.)8 Additionally, as seen in a screenshot of an email, Tiffaney

Bledsoe wrote that she and Plaintiff “were in a meeting where

7 Plaintiff’s report of what he said at the meeting is

inconsistent. (Compare Aikens Dep. Excerpts (Doc. 34-9) at 15

(“I said . . . I was told that they only promote their favorites

and their friends), with id. at 19 (“I said minorities, not

favoritism.”).)

8 Burns stated in her affidavit that she was present at the

Data Dome meeting. (Pl.’s Ex. 2, Johnna Burns Aff. (Doc. 39-2) ¶

3.) But Plaintiff stated in his deposition that “Johnna . . .

wasn’t at my Data Dome meeting.” (Def.’s Ex. A, Aikens Dep.

Excerpts (Doc. 42-1) at 7.) Based on this discrepancy, Defendant

asks this court to disregard Burns’s statements about the Data

Dome incident, arguing that because she was not present, her

statements are “not based on personal knowledge” as required by

Federal Rule of Civil Procedure 56(c)(4), see supra n.6. (Def.’s

Reply (Doc. 42) at 3–4.) In so arguing, Defendant asks this

court to credit Plaintiff’s sworn statements over Burns’ sworn

statements. But “[c]redibility determinations . . . are jury

functions, not those of a judge.” Anderson, 477 U.S. at 255. The

fact that these statements directly conflict is concerning. But

“submitting an affidavit that presents a conflict does not, by

itself, violate any of the provisions of Rule 56(c).” Biggs v.

Edgecombe Cnty. Pub. Sch. Bd. of Educ., No. 4:16-cv-271, 2020 WL

594098, at *1 (E.D.N.C. Feb. 6, 2020). This court need not

disregard these statements.

[Plaintiff] expressed concern and questioned why minorities do

not have the opportunity of promotion that was observed with

Caucasians.” (Pl.’s Ex. 7, Emails and Text Messages (Doc. 39-7)

at 2.)

Defendant’s evidence paints a different picture of the Data

Dome incident.9 Bouchard stated that “[Plaintiff] at one point

interrupted the Department Director’s [(Collins)] presentation

of the promotions lattice to accuse Herbalife management of only

promoting employees that were their ‘friends’ and who

participated in a cross-fit workout program.” (Lisa Bouchard

Decl. (Doc. 35) ¶ 14.) Bouchard denied “ever hear[ing]

[Plaintiff] . . . complain that minorities were treated

differently than others with respect to promotions, or anything

else.” (Id. ¶ 20.) According to Eminger, “[Plaintiff]

interrupted to defiantly state that he was unfairly denied a

promotion without explanation twice due to favoritism, and that

managers only promoted their friends and those who participated

in the ‘cross-fit’ exercise program.” (Corey Eminger Decl. (Doc.

37) ¶ 20.) Collins stated that he does not recall Plaintiff

referencing minorities, but rather, remembers Plaintiff saying,

9 Plaintiff, too, submits evidence that he did not reference

minorities — according to an email where his attorney relayed a

phone call with Plaintiff’s colleague Ashley Aggers, Aggers did

not remember him explicitly mentioning race, (see Pl.’s Ex. 7,

Emails and Text Messages (Doc. 39-7) at 2).

“they hire their favorites and cross fits.” (Def.’s Ex. 10, Ted

Collins Dep. Excerpts (Doc. 34-10) at 11–12.)

The parties also dispute how Plaintiff relayed his question

or statement during the Data Dome incident. In his deposition,

Plaintiff stated that “we was going in a circle asking questions

from left to right,” (Def.’s Ex. 9, Aikens Dep. Excerpts (Doc.

34-9) at 7), and that he wasn’t “being unprofessional or

anything,” (id. at 18). Burns, in her affidavit, relayed the

same, stating that “[Plaintiff] asked the question in a

professional matter [sic].” (Pl.’s Ex. 2, Burns Aff. (Doc. 39-2)

¶ 4.) Defendant presents conflicting evidence as to how

Plaintiff expressed himself. Eminger explained that Plaintiff

“interrupted” Collins’s presentation and made a “defiant[]”

statement. (Corey Eminger Decl. (Doc. 37) ¶ 20.) Bouchard stated

that it seemed like Defendant “was attempting to hijack what the

Department was attempting to accomplish through the program.”

(Lisa Bouchard Decl. (Doc. 35) ¶ 16.) According to Collins,

“[Plaintiff] presented [his question] as an outburst during the

presentation.” (Def.’s Ex. 10, Collins Dep. Excerpts (Doc. 34-

10) at 11.)

After the incident, during the remainder of the final two-

day presentation, Plaintiff was seen “slouching in his seat,

looking at the ceiling, . . . focus[ing] on his phone,” refusing

to join a small group activity, (Corey Eminger Decl. (Doc. 37)

¶ 21), and “roll[ing] his eyes,” (Lisa Bouchard Decl. (Doc. 35)

¶ 17).

On November 8, 2021, three days after the meeting,

Plaintiff was called into Eminger’s office to discuss his

behavior during the Data Dome two-day event. (Corey Eminger

Decl. (Doc. 37) ¶ 27.) According to Eminger, “[Plaintiff] failed

to take any accountability for making false statements, in a

disruptive manner, and his overall behavior in the Data Dome

closing session.” (Id. ¶ 28.) Eminger conveyed details of the

meeting to Collins and Human Resources. (Id. ¶ 31.)

On January 6, 2022,10 Plaintiff was terminated. (Pl.’s Ex.

1, Aikens Termination Letter (Doc. 39-1); Def.’s Ex. 4,

Termination Letter (Doc. 34-4).) The termination letter stated

that Plaintiff “exhibited behavior which adversely affects or is

otherwise detrimental to the interests of Herbalife Nutrition or

employees as well as making false or defamatory statements that

may damage the reputation and/or integrity of Herbalife

Nutrition.” (Pl.’s Ex. 1, Aikens Termination Letter, (Doc. 39-1)

10 The termination letter offered by each party as an

exhibit is dated “January 5, 2022,” however the parties refer to

Plaintiff’s date of termination as “January 6, 2022” in their

briefing. (See Def.’s Br. (Doc. 34) at 7; Pl.’s Resp. (Doc. 39)

at 6.) Regardless, this one-day difference is immaterial to the

issues before the court at summary judgment.

at 1.) Specifically, the termination letter describes

Plaintiff’s conduct at the two-day Data Dome final presentation,

outlining three discrete “conduct issues”: 1) his interruption

of Collins’s presentation on November 4th, 2021, when he stated

that “management only promotes ‘their favorites,’ ‘their

friends,’” 2) Plaintiff’s disengaged attitude and lack of

participation in his small group activity on November 5th, 2021,

and 3) his downplaying of the issue and admission that he “did

not have evidence” of promotions based on favoritism in a

subsequent meeting with Eminger on November 8, 2021. (Id. at 2–

4.)

Plaintiff filed charges of discrimination with the Equal

Employment Opportunity Commission(“EEOC”), (Def.’s Ex. 13, EEOC

Charge (Doc. 34-13) at 2), and the National Labor Relations

Board (“NLRB”), (Pl.’s Ex. 3, NLRB Charge (Doc. 39-3) at 1).

In Plaintiff’s Complaint, he alleges one claim for relief

under 42 U.S.C. § 1981. (Compl. (Doc. 1) at ¶¶ 16–27.) He states

that “[w]ith discriminatory intent, Defendant intentionally

interfered with Plaintiff’s federally protected right to make

and enforce contracts in violation of 42 U.S.C. § 1981,

specifically terminating his employment and preventing him from

continuing his employment contract.” (Id. ¶ 24.) Some of

Plaintiff’s allegations imply that he was wrongfully terminated

for engaging in a protected activity, (id. ¶ 12–13, 22), but

other allegations imply that he was wrongfully terminated on the

basis of his race, (see id. ¶ 14 (“Plaintiff’s race was a factor

when Defendant terminated his employment.”)). Accordingly, this

court will construe Plaintiff’s Complaint to assert a claim of

retaliation in violation of § 1981 and a claim of racial

discrimination in violation of § 1981.

II. PROCEDURAL HISTORY

Plaintiff filed his Complaint in the Western District of

North Carolina on May 26, 2023. (Complaint (“Compl.”) (Doc. 1).)

Defendant filed a Motion to Change Venue on July 25, 2023. (Doc.

5.) The motion was granted, and the lawsuit was transferred to

this court on September 1, 2023. (Doc. 12.) Defendant filed its

Answer to Plaintiff’s Complaint on September 15, 2023. (Answer

(Doc. 15).)

On April 29, 2024, Defendant filed a Motion for Summary

Judgment, (Def.’s Mot. for Summ. J. (Doc. 31)), along with two

versions of a brief in support: a public version, (Br. in Supp.

of Def.’s Mot. for Summ. J. (Doc. 32)), and, following a Motion

to Seal, (Def.’s Mot to Seal (Doc. 33)), a version filed under

temporary seal, (Sealed Br. in Supp. of Def.’s Mot. for Summ. J.

(“Def.’s Br.”) (Doc. 34).)11 The same day, Defendant also filed

three Declarations: one from Lisa Bouchard, (Lisa Bouchard Decl.

(Doc. 35)), one from MaryAnn Atkins, (MaryAnn Atkins Decl. (Doc.

36)), and one from Corey Eminger, (Corey Eminger Decl. (Doc.

37)). Plaintiff filed a Response in Opposition to Defendant’s

Motion for Summary Judgment on June 4, 2024. (Pl.’s Resp. in

Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s Resp.”) (Doc. 39)).

Defendant replied on June 18, 2024. (Def.’s Reply in Further

Supp. of Def.’s Mot. for Summ. J. (“Def.’s Reply”) (Doc. 42).)

On July 24, 2024, Defendant filed a Motion to Strike,

(Def.’s Mot. to Strike (Doc. 43)), and a supporting memorandum,

(Mem. of Law in Supp. of Def.’s Mot. to Strike (“Def.’s Mem.”)

(Doc. 44)). Plaintiff filed a Response in Opposition on August

14, 2024. (Pl.’s Resp. in Opp’n to Def.’s Mot. to Strike (Doc.

45).) Defendant replied on August 28, 2024. (Def.’s Reply (Doc.

46).)

III. ANALYSIS

A. Defendant’s Motion to Strike

Before addressing the merits of Defendant’s Motion for

Summary Judgment, this court must address evidentiary objections

raised in Defendant’s Reply, (Def.’s Reply (Doc. 42)), and in

11 This court cites to Defendant’s sealed brief throughout

this Memorandum Opinion and Order.

Defendant’s subsequent Motion to Strike, (Def.’s Mot. to Strike

(Doc. 43)), and corresponding memorandum, (Def.’s Mem. (Doc.

44)).12 Defendant objects to Plaintiff’s introduction of newly

disclosed evidence in his Response in Opposition to Summary

Judgment, (Pl.’s Resp. (Doc. 39)), and asks this court to strike

the evidence from the record and disregard it for purposes of

summary judgment. (Def.’s Mot. to Strike (Doc. 43) at 2.)13

1. Newly Disclosed Evidence

Defendant argues that Plaintiff, in his Response, “has

presented multiple pieces of ‘evidence’ that he never disclosed

to Defendant, despite multiple requests to do so.” (Def.’s Reply

(Doc. 42) at 4; see also Def.’s Mem. (Doc. 44) at 6.) First,

Defendant argues that Plaintiff has improperly presented new

messages with another Herbalife employee, Casey Wray (“Wray

Messages”). (See Def.’s Reply (Doc. 42) at 4; Def.’s Mem. (Doc.

12 Local Rule 7.6 permits a party to raise evidentiary

objections in a reply brief. See LR 7.6 (“[A] party may assert

evidentiary objections in its response or reply memorandum to

factual allegations contained in memoranda or replies supporting

or opposing . . . motions for summary judgment.”).

13 Plaintiff argues Defendant’s Motion to Strike is untimely

under the 21-day window provided by Federal Rule of Civil

Procedure 12(f). (Pl.’s Resp. in Opp’n to Def.’s Mot. to Strike

(Doc. 45) at 2.) Rule 12(f) governs motions to strike pleadings.

Fed. R. Civ. P. 12(f). Defendant’s Motion to Strike seeks to

strike arguments and evidence presented at the summary judgment

stage and thus, Rule 12(f) is inapplicable. See Fed. R. Civ. P.

7(a) (defining “pleadings”).

44) at 6–7.) Second, Defendant argues that Plaintiff improperly

presented new text messages between himself and Johnna Burns

(“Burns Text Messages”). (See Def.’s Reply (Doc. 42) at 4;

Def.’s Mem. (Doc. 44) at 7.) Third, Defendant argues that

Plaintiff improperly presented a new email from Daisha Peele

(“Daisha Peele Email”). (Def.’s Reply (Doc. 42) at 5; Def.’s

Mem. (Doc. 44) at 7.)

Defendant’s references to these newly disclosed pieces of

evidence are replete with inaccurate citations to the record.

Plaintiff has attached two text threads with Johnna Burns. One

thread with Burns is found at Docket Entry 39-5. (Def.’s Ex. 5,

Johnna Burns Text Messages (Doc. 39-5) at 1–2.) This thread is

marked on ECF as “Exhibit C.” Another thread with Burns is found

at Docket Entry 39-7, pages three and four. (Def.’s Ex. 7,

Emails and Text Messages (Doc. 39-7) at 3–4.) This thread is

part of what is marked “Exhibit E” on ECF. Defendant cites to

the Burns text messages as “ECF No. 39-5” in its Reply brief,

(Def.’s Reply (Doc. 42) at 4), and later, in its Memorandum in

Support of its Motion to Strike, as “Exhibit C (ECF No. 39-6).”

(Def.’s Mem. (Doc. 44) at 7.) This court cannot ascertain which

Burns text messages Defendant seeks to strike. Accordingly, this

portion of Defendant’s Motion to Strike is denied.

Defendant states in its Reply that the Daisha Peele Email

is found at “ECF No. 39-6, p.5,” (Def.’s Reply (Doc. 42) at 5),

but states in its subsequent Memorandum in Support of its Motion

to Strike that this email is found at “Exhibit E . . . (ECF No.

39-8).” (Def.’s Mem. (Doc. 44) at 7.) Neither Docket Entry 39-6

nor Docket Entry 39-8 contain an email from Daisha Peele.

Plaintiff presents two different emails from Daisha Peele. (See

Pl.’s Ex. 7, Emails and Text Messages (Doc. 39-7) at 1, 5.)

However, because Defendant attached the Peele email found at

Doc. 39-7, page one, to its Memorandum in Support of Summary

Judgment, (Def.’s Ex. 17, Pl.’s Produc. (Doc. 34-17) at 2), and

thus clearly received that email during discovery, this court

construes Defendant’s Motion to Strike to refer to the Peele

email found at Doc. 39-7, page five.

Finally, the Wray Messages are found at Docket Entry 39-6,

(Def.’s Ex. 6, Casey Wray Messages (Doc. 39-6).) These messages

are marked as Exhibit D on ECF. Defendant, in its Memorandum in

Support of its Motion to Strike, cites to the Wray Messages as

“Exhibit D (ECF No. 39-7).” (Def.’s Mem. (Doc. 44) at 6.) There

is only one set of messages with Wray, so despite this

deficiency, it is clear to this court that Defendant seeks to

strike Docket Entry 39-6. Accordingly, this court will analyze

whether the Wray messages and the Peele email found at Doc. 39-

7, page five, should be stricken.

Defendant argues that, during discovery, it requested that

Plaintiff produce all documents and information relating to his

claims. (Def.’s Reply (Doc. 42) at 5.) Most importantly,

Defendant requested “all documents and communications between

you and any other person that relate to the facts and

allegations upon which your Complaint is based between October

2015 and the present,” (Def.’s Mem. (Doc. 44) at 3), “all

documents evidencing communications between you and any current

or former employee of Herbalife, including but not limited to

personal notes, letters, memoranda, and emails, that pertain to

your job performance, compensation, benefits, alleged

harassment, separation from employment, or any other matter

pertaining to your employment with Herbalife, ” (id.), and “all

documents relating to any complaints or reports of

discrimination, harassment, or retaliation that you made to or

about Defendant,” (id.)

Defendant argues that these “newly-disclosed documents” are

“plainly responsive to multiple [requests for production] served

on Plaintiff by Defendant during the discovery period.” (Id. at

6.) With respect to the Wray messages and the Peele email, this

court agrees.14 But that is not the end of the inquiry. Federal

Rule of Civil Procedure 37(c)(1) explains that “[i]f a party

fails to provide information or identify a witness as required

by Rule 26(a) or (e), the party is not allowed to use that

information or witness to supply evidence on a motion . . . ,

unless the failure was substantially justified or is harmless.”

Fed. R. Civ. P. 37(c)(1) (emphasis added); see also Benjamin v.

Sparks, 986 F.3d 332, 341 (4th Cir. 2021).

This court retains “broad discretion” in determining

whether such a failure was substantially justified or harmless,

Bresler v. Wilmington Tr. Co., 855 F.3d 178, 190 (4th Cir.

2017), but is instructed to consider the following:

(1) the surprise to the party against whom the

evidence would be offered; (2) the ability of that

party to cure the surprise; (3) the extent to which

allowing the evidence would disrupt the trial;(4) the

importance of the evidence; and (5) the nondisclosing

party’s explanation for its failure to disclose the

evidence.

Id. (quoting S. States Rack & Fixture, Inc. v. Sherwin-Williams

Co., 318 F.3d 592, 597 (4th Cir. 2003)).15 “The party failing to

disclose information bears the burden of establishing that the

14 Further, Plaintiff does not contest this point. (See

generally Pl.’s Resp. in Opp’n to Def.’s Mot. to Strike (Doc.

45).)

15 Although, district courts are “not required to tick

through each of the Southern States factors.” Wilkins v.

Montgomery, 751 F.3d 214, 222 (4th Cir. 2014).

nondisclosure was substantially justified or was harmless.”

Bresler, 855 F.3d at 190 (citation omitted).

Plaintiff does not dispute that he failed to produce the

Wray Messages and the Peele email, nor does he attempt to

provide any justification, let alone a “substantial

justification” for his failure. See Fed. R. Civ. P. 37(c)(1).

Rather, Plaintiff argues that his failure to produce the “text

messages” was “harmless.” (Pl. Resp. in Opp’n to Def.’s Mot. to

Strike (Doc. 45) at 2.) Specifically, he argues that “the

substance of the text messages was disclosed during the

Plaintiff’s employment as part of an allegation that he was

sexually harassing a female employee.” (Id.)16 Plaintiff does not

specify to which set of messages he refers,17 but this court

construes Plaintiff’s argument to refer to the messages with

Casey Wray, because in his Response in Opposition to Summary

Judgment, Plaintiff cites to the Wray messages as support for

16 Plaintiff additionally argues that Defendant “waived

their right to object to the inclusion of the text messages”

because it did not raise the issue in its Reply. (Pl.’s Resp. in

Opp’n to Def.’s Mot. to Strike (Doc. 45) at 3.) This is false.

Defendant’s Reply specifically notes that Plaintiff’s Response

included evidence not previously disclosed in evidence,

including text messages with Casey Wray, text messages with

Johnna Burns, and an email from Daisha Peele. (Def.’s Reply

(Doc. 42) at 4–5.)

17 As discussed above, Defendant’s motion sought to strike

messages with two different people — messages with Burns and

messages with Wray.

the proposition that the investigation as to Plaintiff’s sexual

harassment “produced clear evidence that he was not the

aggressor . . . and in fact, Wray had been pursuing him.” (Pl.’s

Resp. (Doc. 39) at 4.) Plaintiff provides no justification nor

argument for his failure to provide the Peele email. In the

absence of any argument that this failure was “substantially

justified,” or “harmless,” Fed. R. Civ. P. 37(c)(1), Plaintiff

will not be allowed to use the Peele email found at Doc. 39-7,

page five, as evidence in its Response in Opposition to

Defendant’s Motion for Summary Judgment.

Plaintiff argues that the late addition of the Wray

Messages was harmless because Defendant acquired these messages

during its own investigation of the alleged sexual harassment.

(See Pl.’s Resp. in Opp’n to Def.’s Mot. to Strike (Doc. 45) at

2–3.) “There is no general exception to the discovery rules for

information that the requesting party already knows.” Kariuki v.

N. Carolina Dep’t of Ins., No. 5:18-cv-341, 2021 WL 1601091, at

*1 (E.D.N.C. Apr. 23, 2021). While the inclusion of evidence

already known to an opposing party may be harmless, see Fazzie

v. Steinberg, No. JKB-15-1730, 2018 WL 4335514, at *5 (D. Md.

Sept. 11, 2018), Plaintiff has not provided any evidence that

the content of these messages was previously known to Defendant.

In support of his argument that the inclusion of the messages

was harmless, Plaintiff cites to excerpts of Collins’s

deposition, where Collins stated that HR investigated

Plaintiff’s alleged sexual misconduct. (See Pl.’s Ex. 1, Ted

Collins Dep. Excerpts (Doc. 45-1).) Nowhere in the deposition

excerpt does Collins address messages between Wray and

Plaintiff, and in fact, Collins explained that the investigation

and determination rested solely with HR and that he was not

familiar with the investigation’s findings. (Id. at 3.) Given

Plaintiff’s obligation to turn over information that was

responsive to the RFPs, even if Defendant allegedly already held

it, and Plaintiff’s lack of proof that this failure was

harmless, pursuant to Federal Rule 37(c)(1), Plaintiff will not

be allowed to use the Wray Messages as evidence in opposition to

Defendant’s Motion for Summary Judgment.

i. Attorney’s Fees

Defendant also requests, pursuant to Rule 37(c)(1), “the

reimbursement of its attorney’s fees and expenses associated

with preparing this motion to remedy the unfairness created by

Plaintiff’s misconduct.” (Def.’s Mem. (Doc. 44) at 9.) Federal

Rule of Civil Procedure 37(c)(1)(A) permits a court to “order

payment of the reasonable expenses, including attorney’s fees,

caused by the failure [to provide information required by Rule

26(a) or (e)].” Fed. R. Civ. P. 37(c)(1)(A). This penalty may be

imposed “in addition to or instead of” Rule 37(c)(1)’s rule

prohibiting a party from using the information. Fed. R. Civ. P.

37(c)(1). However, as explained in Southern States, these

“alternative sanctions” referenced in Rule 37(c)(1) were

primarily intended [by the advisory committee] to

apply when a party fails to disclose evidence helpful

to an opposing party. . . . This is because

“[p]reclusion of evidence is not an effective

incentive to compel information that, being

supportive of the position of the opposing party,

might advantageously be concealed by the disclosing

party.”

S. States Rack & Fixture, Inc., 318 F.3d at 595 n.2; see also

Intercollegiate Women’s Lacrosse Coaches Ass’n v. Corrigan

Sports Enters., Inc., 694 F. Supp. 3d 625, 656 (M.D.N.C. 2023).

Neither the Wray Messages nor the Peele email are helpful

to Defendant. Accordingly, this court finds the exclusion of the

evidence a sufficient remedy and denies Defendant’s request for

attorney’s fees.

B. Defendant’s Motion for Summary Judgment

1. 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,

477 U.S. at 252. 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 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.” McLean, 332 F.3d at 719 (citing Anderson, 477 U.S.

at 247–48).

2. Retaliation Claim18

42 U.S.C. § 1981 provides that “[a]ll persons within the

. . . United States shall have the same right in every State and

18 Defendant, in its Reply to Plaintiff’s Response in

Opposition to Defendant’s Motion for Summary Judgment, argues

that Plaintiff’s claim for retaliation has been conceded because

Plaintiff failed to address it in his Response to Defendant’s

Motion for Summary Judgment. (See Def.’s Reply (Doc. 42) at 5.)

Plaintiff’s Response conflates the elements of his two distinct

claims, so although it does not mention the word “retaliation,”

there are pieces of his argument that appear to address the

elements of retaliation. Given the presence of what appears to

be some argument in support of a retaliation claim and because

the Fourth Circuit has a “strong policy that cases be decided on

the merits.” United States v. Shaffer Equip. Co., 11 F.3d 450,

462 (4th Cir. 1993), this court does not find Plaintiff’s

retaliation claim conceded.

Territory to make and enforce contracts . . . as is enjoyed by

white citizens.” 42 U.S.C. § 1981(a). Section 1981 “encompasses

claims of retaliation.” CBOCS West, Inc. v. Humphries, 553 U.S.

442, 457 (2008).

When employment discrimination plaintiffs lack direct

evidence of retaliatory discrimination, they may proceed by

satisfying the “McDonnell Douglas framework[, which] is a three-

step burden-shifting framework.” Foster v. Univ. of Md.-Eastern

Shore, 787 F.3d 243, 250 (4th Cir. 2015). Plaintiff does not put

forth any direct evidence of discrimination, so this court will

proceed via the McDonnell Douglas framework. This framework

first requires the plaintiff to establish a prima facie case.

Id. “To establish a prima facie case of retaliation under Title

VII, [a plaintiff] must show (i) that [he] engaged in a

protected activity, (ii) that [his employer] took adverse action

against [him], and (iii) that a causal relationship existed

between the protected activity and the adverse employment

activity.” Guessous v. Fairview Prop. Invests., LLC, 828 F.3d

208, 217 (4th Cir. 2016) (internal quotation marks and citation

omitted).19

If the plaintiff has established a prima facie case of

retaliation,

[t]he burden then shifts to the [defendant] to show

that its purportedly retaliatory action was in fact

the result of a legitimate non-retaliatory reason. 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.

Foster, 787 F.3d at 250 (internal quotation marks and citations

omitted).

i. Prima Facie Case of Retaliation

The first element of the prima facie case requires a

plaintiff to establish that he engaged in a protected activity.

Guessous, 828 F.3d at 217. “In CBOCS, . . . the Court held that

42 U.S.C. § 1981 — which declares that all persons ‘shall have

the same right . . . to make and enforce contracts . . . as is

enjoyed by white citizens’ — prohibits not only racial

discrimination but also retaliation against those who oppose

it.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 354–55

19 “A prima facie retaliation claim under § 1981 has the

same elements as a retaliation claim under Title VII.” Parks v.

La.-Pac. Corp., 400 F. Supp. 3d 393, 416 (W.D.N.C. 2019); see

also Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281

(4th Cir. 2015) (en banc).

(2013) (citing CBOCS West, Inc., 553 U.S. at 445). “An employee

opposes race discrimination [in employment] when [he]

‘communicates to [his] employer a belief that the employer has

engaged in’ such discrimination.’” Ali v. BC Architects Eng’rs,

PLC, 832 Fed. App’x 167, 172 (4th Cir. 2020) (quoting Crawford

v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn., 555 U.S.

271, 276 (2009)).

“[F]or an employee’s activity to constitute protected

‘opposition,’ [he] must show (1) that [he] reasonably believed

that the employment action [he] opposed constituted a [§ 1981]

violation, and (2) that [his] conduct in opposition was

reasonable.” Netter v. Barnes, 908 F.3d 932, 937–38 (4th Cir.

2018);20 see also Ali, 832 Fed. App’x at 172.

Plaintiff, in his Complaint, appears to allege that the

following activity was protected: “At a training meeting on

November 4, 2021, Plaintiff . . . specifically questioned

20 In Netter, the Fourth Circuit analyzed claims of

retaliation under Title VII and § 1981 under the same standard,

explaining that, “[b]ecause § 1981 ‘affords no greater

substantive protection than Title VII’ in the circumstances

here, our analysis of [the plaintiff’s] claim ‘also disposes of

the § 1981 claim.’” Netter, 908 F.3d at 937, n.1 (citation

omitted); see also N.Y.C. Transit Auth. v. Beazer, 440 U.S. 568,

583 n.24 (1979) (“[I]t seems clear that [§ 1981] affords no

greater substantive protection than Title VII.”). Accordingly,

this court applies both § 1981 caselaw and Title VII caselaw in

evaluating whether Plaintiff has put forth evidence for a

reasonable jury to find that he engaged in a protected activity.

whether minorities were being passed over for promotions because

of their race . . . .” (Compl. (Doc. 1) ¶ 9.) Defendant, at

summary judgment, argues the evidence does not show that

Plaintiff made such a statement. (Def.’s Br. (Doc. 34) at 18

(“[T]here are serious issues with Plaintiff’s ‘evidence’ of

having even engaged in protected activity at all.”).) But even

if he did, Defendant argues Plaintiff’s question “does not

qualify as protected activity” because his conduct was

“disrespectful, unprofessional, counter to [Herbalife’s]

training and disruptive.” (Def.’s Br. (Doc. 34) at 21–22

(quoting Def.’s Ex. 4, Termination Letter (Doc. 34-4) at 5).)

The parties dispute whether Plaintiff actually

“‘communicate[d] to [Defendant] a belief that [Defendant] has

engaged in’ [racial] discrimination” in violation of § 1981, see

Ali, 832 Fed. App’x at 172, and further, whether his conduct in

opposition was “reasonable,” Netter, 908 F.3d at 937–38, or

whether it was “disruptive or disorderly,” Laughlin, 149 F.3d at

260, and therefore not protected opposition activity. However,

even assuming Plaintiff addressed racial discrimination in the

promotion process and did so without being “disruptive or

disorderly,” id., Plaintiff still fails to establish that he was

engaged in a protected activity, because he has not shown that

he ”reasonably believed that the employment action [he] opposed

constituted a [§ 1981] violation.” Netter, 908 F.3d at 937–38.21

For a plaintiff to show that he “reasonably believed the

employment action [he] opposed constituted a [§ 1981]

violation,” id., he must “point to specific evidence in the

record from which a jury could infer that a reasonable person in

the plaintiff’s shoes would have ‘belie[ved] that [his]

complaints related to an ongoing [§ 1981] violation.” Cosby v.

S. Carolina Prob., Parole & Pardon Servs., 93 F.4th 707, 719

(4th Cir. 2024) (analyzing a Title VII retaliation claim); see

also Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 285

(4th Cir. 2015) (en banc) (analyzing whether plaintiff’s belief

was objectively reasonable for retaliation claims under Title

VII and § 1981). In other words, “[t]o warrant protection, the

employee’s perception of a violation must be ‘objectively

reasonable’ under the circumstances known to [him].” Strothers

v. City of Laurel, Md., 895 F.3d 317, 328 (4th Cir. 2018).

Accordingly, this court must determine “whether the

circumstances known to [Plaintiff] at the time of [his]

21 “Because the analysis for determining whether an employee

reasonably believes a practice is unlawful is an objective one,

the issue may be resolved as a matter of law.” Session v.

Montgomery Cnty. Sch. Bd., 462 Fed. App’x 323, 325 (4th Cir.

2012) (quoting Jordan v. Alternative Res. Corp., 458 F.3d 332,

339 (4th Cir. 2006)).

complaint support a reasonable belief” that Defendant Herbalife

was engaging in racially discriminatory promotional practices.

See id.; see also Boyer-Liberto, 786 F.3d at 285; Cosby, 93

F.4th at 719.

In determining whether a plaintiff had a “reasonable basis”

to oppose unlawful discrimination, the Fourth Circuit in

Strothers looked to the elements of the alleged unlawful

practice (in that case, hostile work environment), “in light of

what [the plaintiff] knew.” Strothers, 895 F.3d at 328; see also

Doyle v. Advanced Fraud Sols., LLC, No. 1:18-cv-885, 2020 WL

1305162, at *7 (M.D.N.C. Mar. 19, 2020) (“In determining what

constitutes objective reasonableness, this court will start by

examining the case law pertaining to the complained-of

conduct.”) (12(b)(6) context). Plaintiff asserted in his

deposition that, at the Data Dome meeting, he asked “how come

minorities don’t get the same opportunity to move up as

Caucasians.” (See Def.’s Ex. 9, Aikens Dep. Excerpts (Doc. 34-9)

at 7; see also Compl. (Doc. 1) ¶ 9.)

“To establish a prima facie case of failure to promote

based on race, a plaintiff must show that: ‘(1) [he] is a member

of a protected group, (2) there was a specific position for

which [he] applied, (3) [he] was qualified for that position,

and (4) [the defendant] rejected [his] application under

circumstances that give rise to an inference of

discrimination.’” Benson v. Vaughn Industs. LLC, 450 F. Supp. 3d

655, 665 (E.D.N.C. 2020) (quoting Williams v. Giant Food Inc.,

370 F.3d 423, 430 (4th Cir. 2004)). These elements need not be

actually satisfied, but the evidence must show that at the time

of the complaint, Plaintiff’s “belief that these elements were

satisfied was reasonable.” Strothers, 895 F.3d at 328.

Plaintiff fails to point to any evidence in the record that

would permit a jury to find that when he made his complaint at

the Data Dome meeting, he had a reasonable belief that the

elements of failure-to-promote in violation of § 1981 were

satisfied — neither with respect to himself nor with respect to

any other employees.22 Nor does any evidence in the record

support such a finding. In his deposition, Plaintiff stated:

“I’ve seen they have chosen the white employee over the black.”

(Def.’s Ex. A, Aikens Dep. Excerpts (Doc. 42-1) at 3.) He

provided the following examples:

[T]he only time I knew that there was direct

competition was between Darryl when he was trying to

become the quality control supervisor and a Caucasian

22 Plaintiff, in his Response, states that he “noticed that

although there seemed to be an equal number of white and

minority employees, only two out of 10 minority employees had

been promoted during the time Plaintiff had been at Herbalife

while eight or nine white employees had been promoted.” (Pl.’s

Resp. (Doc. 39) at 5.) This assertion is not accompanied by any

citation to the record. Defendant has submitted Plaintiff’s

interrogatory responses, which includes a chart of minority and

non-minority employees and their “Date of Promotion or

Application.” (See Def.’s Ex. 15, Pl.’s Discovery Resps. (Doc.

34-15) at 7.) Notably, Plaintiff did not submit this, nor cite

to the chart in his Response. Further, this chart’s probative

value is suspect at best — under the column listed “Date of

Promotion or Application” the chart lists “Unknown” for eight of

the ten employees. This court cannot ascertain if those

employees applied for a promotion and were denied or never

applied for a promotion. Further, despite Plaintiff’s allegation

that eight White employees were promoted compared to only two

minority employees, this chart only lists five White employees.

Nor has Plaintiff put forth any evidence of the ratio of Black

and White employees at Herbalife. At bottom, this chart is vague

and incomplete in light of Plaintiff’s allegations and is not

sufficient to support a reasonable belief of racial

discrimination in promotions. It is also contradicted by a sworn

statement from Herbalife’s HR Manager, MaryAnn Atkins, who noted

that “HR records confirm that during [Plaintiff’s] time in the

QC Department, a higher percentage of Black or African American

employees had been promoted than White Employees: 79% of White

employees and 87% of Black or African American employees in the

Quality Control department received at least on promotion in

that time.” (MaryAnn Atkins Decl. (Doc. 36) ¶ 20.)

man on second shift, I do know the Caucasian man got

the title. And Margo . . . applied to be a manger,

the qualify [sic] control manager, and they made

Corey the manager because Corey was originally the

quality control, I mean, the microbiologist

supervisor. And they both applied for the position

and he got the title. . . . Me personally, they chose

Tiffaney over me. As far as Juan and Joey, they just

got title changes. . . . [I]t wasn’t a competition

between them.

(Id.) As an initial matter, it is not clear from the deposition

which of these individuals are members of a protected class.

However, because this court must construe all facts in the light

most favorable to Plaintiff, this court understands Plaintiff to

assert that Darryl and Margo are members of a protected class.

However, with respect to Darryl, the unnamed “Caucasian man on

second shift,” Margo, and Corey, Plaintiff admitted he did not

know their prior work experience, the details of their

performance reviews, or their relative qualifications. (Id. at

5–6.)

Q: Yeah. So you don’t know where the other employees

were working prior to Herbalife?

[Plaintiff]: Huh-uh.

Q: Or what duties they might have performed?

[Plaintiff]: Before Herbalife? No.

Q: And you wouldn’t have been involved in any

performance reviews for those other employees?

[Plaintiff]: No.

Q: Are you taking the position that any of these

employees that were promoted did not deserve the

promotion?

[Plaintiff]: No. It was an observation that both –

both employees were qualified, but they chose the

Caucasian employees more times and both were good.

And not saying one is more qualified than the other,

but they both seem both pretty well suited in the

career. And they coincidentally happen to seem to

favor a particular race over another race which led

to reviews and me speaking on behalf of them in the

Data Dome.

Q: Yeah. So, but you don’t know whether one was

qualified over the other?

[Plaintiff]: No.

Q: And you don’t know for any of these instances of

promotion whether the individual promoted was the

most qualified for that promotion?

[Plaintiff]: No.

(Id.)

No reasonable jury could find that Plaintiff reasonably

believed that the elements of discriminatory promotion were

satisfied here. The elements of failure-to-promote require a

showing that the person who did not receive the promotion was

“qualified for the position sought.” Williams v. Henderson, 129

Fed. App’x 806, 813 (4th Cir. 2005). Although Plaintiff stated

that “both employees were qualified,” (Def.’s Ex. A, Aikens Dep.

Excerpts (Doc. 42-1) at 5–6), he conceded he did not know

details regarding the qualifications of any of the relevant

applicants. Further, Plaintiff has provided no indication that

he reasonably believed these individuals were rejected for

promotion “under circumstances that give rise rise to an

inference of discrimination,” Benson, 450 F. Supp. 3d at 665

(E.D.N.C. 2020).23

Plaintiff has similarly failed to show that he reasonably

believed the elements of failure-to-promote in violation of

§ 1981 were satisfied with respect to his own alleged experience

of racial discrimination when he applied for a position as a

“Chem 1,” and “[Herbalife] chose Tiffaney over me,” (Def.’s Ex.

A, Aikens Dep. Excerpts (Doc. 42-1) at 3, 5). Plaintiff asserted

in his deposition that “the qualifications for chem 1 was a

Bachelor’s degree with zero to one year experience or a person

with Associate’s degree with at least 5 years of experience.

That was a prerequisite and, you know, I was 2 years above it.”

(Id. at 5.) Assuming Plaintiff fulfilled the position’s baseline

23 This court notes that Plaintiff also submits a screenshot

of an email from Daisha Peele, in which she recounts her own

experience of being overlooked for promotions. (See Pl.’s Ex. 7,

Emails and Text Messages (Doc. 39-7) at 1.) But without any

evidence that Plaintiff was aware of her experience at the time

he made the statement at Data Dome, Peele’s email is irrelevant

to whether Plaintiff’s belief at that time was objectively

reasonable. Plaintiff has not provided any evidence that he was

aware of Peele’s experience at the relevant time. In fact, the

record suggests he was not — in his deposition he gave three

discrete examples of instances of alleged discrimination in

promotions and did not mention Peele. (See Def.’s Ex. A, Aikens

Dep. Excerpts (Doc. 42-1) at 3.)

qualifications as he avers, Plaintiff has again not shown that

he reasonably believed he was rejected for the position “under

circumstances that give rise to an inference of discrimination.”

Benson, 450 F. Supp. 3d at 665.

As an initial matter, Plaintiff did not know any details

regarding Tiffaney’s qualifications. In his deposition,

Plaintiff said he knew “she had a science degree, but she had

less chemistry or lab experience than [Plaintiff].” (Def.’s Ex.

A, Aikens Dep. Excerpts (Doc. 42-1) at 4).24 Plaintiff conceded

he did not know any other details about her qualifications:

Q: An animal science degree from where?

[Plaintiff]: I’m not sure.

Q: And she worked in a lab where?

[Plaintiff]: I’m not sure. I didn’t ask her job. She

just said she had two years of experience.

Q: What was she doing in her other job?

[Plaintiff]: I really don’t know.

Q: Have you seen any of her reviews?

24 It is concerning to this court that Plaintiff

misconstrues the facts in his Response in Opposition to Summary

Judgment. In his deposition, Plaintiff stated that the White

woman who received the “Chem I” position he applied for “had

about two years of lab experience.” (Def.’s Ex. A, Aikens Dep.

Excerpts (Doc. 42-1) at 4.) In his Response, he states (without

any citations to the record) that “Herbalife would go on to hire

[(for the Chem I position)] a Caucasian female with no

experience.” (Pl.’s Resp. (Doc. 39) at 4.)

[Plaintiff]: No.

(Id.) In other words, Plaintiff did not know whether he and she

were similarly qualified for the role.

Further, and more importantly, the record shows that around

the time he applied for this position, he had been the subject

of a plethora of complaints. In one-on-one coaching in May of

2020, his supervisor explicitly told him that “if he wants to be

considered for a promotion . . . he will have to meet/exceed and

maintain the expectations out lined above along with his usual

job duties for an extended length of time(many months).” (Def.’s

Ex. 8, Herbalife Internal Emails (Doc. 34-8) at 11.) Although

Plaintiff stated in his deposition that he did meet his

supervisor’s expectations, (see Def.’s Ex. 9, Aikens Dep.

Excerpts (Doc. 34-9) at 13), the record belies this statement —

following the May 2020 one-one-one meeting, Plaintiff was

reprimanded for 1) having errors in his write ups, (Def.’s Ex.

8, Herbalife Internal Emails (Doc. 34-8) at 12), 2) writing

unprofessional comments in his work book, (id.), 3) watching

cartoons in the lab, (id. at 15), and 4) having sloppy and

illegible handwriting, (id. at 16).

After an explicit warning that he would not be considered

for a promotion unless he was able to “meet [or] exceed”

expectations for an extended period of time, (id. at 11),

Plaintiff was reprimanded several times for engaging in the same

conduct he was warned would hinder his ability to receive a

promotion. During this time, he applied for a promotion and was

denied. It was not objectively reasonable for Plaintiff, given

his prior communications with his supervisor and his continued

errors and misconduct, to assume that his denial of a promotion

was an unlawful form of racial discrimination.25

Because Plaintiff has failed to demonstrate that he

reasonably believed Herbalife had violated § 1981, even assuming

he questioned racial discrimination at the Data Dome meeting,

this was not protected activity. Accordingly, because Plaintiff

is required to show that he was engaged in a protected activity

for purposes of the prima facie case, his retaliation claim

fails as a matter of law. When the prima facie case is not

established, the question of pretext is not relevant. See

Haywood v. Locke, 387 Fed. App’x 355, 357 (4th Cir. 2010).

25 Even further, Plaintiff stated in his deposition that

Eminger told him he did not get the promotion because of his

handwriting. (Def.’s Ex. 9, Aikens Dep. Excerpts (Doc. 34-9) at

6.) Plaintiff also stated that Martin told him it was because

the other candidate was “better, qualified.” (Id. at 12–13.)

Given the history of complaints regarding Plaintiff and his work

product, including repeated complaints about the legibility of

his handwriting, these reasons do not justify a reasonable

inference of racial discrimination.

Defendant’s Motion for Summary Judgment is granted as to

Plaintiff’s retaliation claim.

3. 42 U.S.C. § 1981 Racial Discrimination Claim

A plaintiff employee pursuing a claim of racial

discrimination in violation of § 1981 may prove discrimination

in one of two ways. First, they may put forth direct evidence of

racial discrimination, such as “conduct or statements that . . .

reflect . . . the alleged discriminatory attitude and that bear

directly on the contested employment decision.” Fuller v.

Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995) (abrogated on other

grounds). If a plaintiff is unable to put forth direct evidence

of discrimination, then the McDonnell Douglas burden-shifting

scheme will apply. See Patterson v. McLean Credit Un., 491 U.S.

164, 186 (1989) (explaining that McDonnell Douglas scheme

applies to § 1981 claims). “Most discrimination cases . . . will

fall within this traditional McDonnell Douglas . . . framework.”

Fuller, 67 F.3d at 1141.

Plaintiff has not put forth direct evidence of

discrimination based on race. In his deposition, he testified

that his claim that race was a factor in his termination was

based solely on “compare and contrast” to non-minority

individuals who were not terminated. (See Def.’s Ex. 9, Aikens

Dep. Excerpts (Doc. 34-9) at 23.) Therefore, the burden-

shifting evidentiary framework established by McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), applies to his claim for

relief. “[T]he plaintiff employee ‘must first establish a prima

facie case of employment discrimination.’” Irani v. Palmetto

Health, 767 Fed. App’x 399, 418 (4th Cir. 2019) (quoting

Guessous, 828 F.3d at 216). If the plaintiff is able to make

this showing, “the burden of production ‘shifts to the employer

to articulate a non-discriminatory . . . reason for the adverse

action.’” Id. Then, the burden shifts back to the plaintiff

employee, who must show “by a preponderance of the evidence that

the stated reason for the adverse employment action is a pretext

and that the true reason is discriminatory.” Id.

In order to establish a prima facie case of discriminatory

termination,

a plaintiff must make a prima facie showing that: (1)

he was a member of a protected class; (2) he was

satisfactorily performing his job at the time of the

termination; (3) he was terminated from his

employment; and (4) the prohibited conduct in which

he engaged was comparable in seriousness to

misconduct of other employees outside the protected

class who received less severe discipline.

Haynes v. Waste Connections, Inc., 922 F.3d 219, 223 (4th Cir.

2019).

It is undisputed that Plaintiff is a member of a protected

class and that he was subject to an adverse employment action.

Therefore, the elements of the prima facie case that are in

dispute are i) whether he was treated differently from similarly

situated employees outside of his protected class (Prong Four)

and ii) whether he was satisfactorily performing his job at the

time of the adverse employment action (Prong Two).

i. Similarly Situated Employees

This prong of the prima facie case requires the

identification of an appropriate comparator. See Haynes, 922

F.3d at 223. “[T]o establish a valid comparator, the plaintiff

must produce evidence that the plaintiff and the comparator

‘dealt with the same supervisor, [were] subject to the same

standards and . . . engaged in the same conduct without such

differentiating or mitigating circumstances that would

distinguish their conduct or the employer’s treatment of them

for it.’” Id. at 223–24 (quoting Haywood, 387 Fed. App’x at

359). Although, notably, “plaintiffs do not need to share the

same supervisor in every case, and that comparison point is not

a bar to relief in a case . . . where the comparators are

otherwise similar in all relevant respects.” Cowgill v. First

Data Techs., Inc., 41 F.4th 370, 382 (4th Cir. 2022) (internal

quotation marks and citation omitted).

Plaintiff, in his Response in Opposition to Summary

Judgment, identifies two comparators, both White: Scott Dixon

and Casey Wray. (Pl.’s Resp. (Doc. 39) at 6–7.) He alleges that

these two individuals, outside of his protected class, “were

treated differently than he was.” (Id. at 6.) Specifically, he

argues that Scott Dixon “was not terminated for behavior that

was demonstrably worse in the exact same meetings with the same

consulting group” and that “Wray, a Caucasian female was not

terminated for her sexually explicit messages but later would

receive a promotion.” (Id. at 4, 6.)

As an initial matter, Plaintiff provides no admissible

evidence regarding his second comparator, Casey Wray. (See supra

Section III.A.1. (striking the Wray Messages).) Further, there

is nothing in the record to suggest that she had the same

supervisor as Plaintiff or that she is otherwise similar in all

relevant respects. Accordingly, the record does not support a

finding that Wray is similarly situated to Plaintiff.

As to Plaintiff’s first comparator, Scott Dixon, the record

shows the following. Collins, when asked in his deposition, if

he “recall[ed] any incidents where [Dixon] was disrespectful or

disruptive towards DataDome,” he answered, “[Dixon] had

performance issues, yes. He did have difficulties with

DataDome.” (Pl.’s Ex. 4, Collins Dep. (Doc. 39-4) at 73.)

Additionally, he stated that Dixon had a “regular pattern of

drawing conclusions that were not supported by fact,” and “not

working as a team member.” (Id.) According to a text message

from Johnna Burns, Dixon had “several write ups,” and had a

“heated” interaction with a Data Dome employee. (Pl.’s Ex. 5,

Johnna Burns Text Messages (Doc. 39-5) at 1.) Additionally, in a

text message to “Tiffaney,” Plaintiff stated: “Remember that

Tuesday meeting we had when [Dixon] called Lisa [(Bouchard)] a

bitch to Ted [and] Corey and said she was talking rudely,” to

which Tiffaney responded with an emoji of a laughing face.

(Pl.’s Ex. 7, Emails and Text Messages (Doc. 39-7) at 3.)26 Dixon

was not fired, although the record suggests that he was

disciplined for some of his misconduct. (See id.)

Plaintiff fails to “establish [Dixon as] a valid

comparator.” See Haynes, 922 F.3d at 223. First, there is no

evidence that Plaintiff and Dixon reported to the same

supervisor.27 And although “that comparison point is not a bar to

relief in a case . . . where the comparators are otherwise

similar in ‘all relevant respects,’” Cowgill, 41 F.4th at 382,

Plaintiff has not established that the two are otherwise similar

in all relevant respects. Plaintiff and Dixon held different

26 Collins stated in his deposition that he “[did] not

recall a situation where [Dixon] used profanity toward the

consultant.” (Pl.’s Ex. 4, Ted Collins Dep. (Doc. 39-4) at 73.)

27 Plaintiff argues in his Response in Opposition to Summary

Judgment that he and Dixon “report[ed] to the same supervisor.”

(Pl.’s Resp. (Doc. 39) at 8.) But this argument is not

accompanied by a citation to the record, nor does any part of

the record support it.

positions at Herbalife: Plaintiff was employed as a Lab Tech,

while Dixon was employed as Chemist I and later Chemist II. (See

Def.’s Ex. 3, Position Transfer Letter (Doc. 34-3) at 2; Def.’s

Ex. 15, Pl.’s Discovery Resps. (Doc. 34-15) at 7.) Additionally,

throughout the year prior to his termination, Plaintiff was the

subject of a plethora of complaints regarding errors in his

work, problems with the legibility of his work product, his work

ethic, his watching videos in the lab, and making inappropriate

and rude comments to co-workers. (See generally Def.’s Ex. 8,

Herbalife Internal Emails (Doc. 34-8); Def.’s Ex. A, Internal

Emails (Doc. 36-1); Def.’s Ex. B, Internal Emails (Doc. 36-2).)

But Plaintiff has only provided vague assertions of Dixon’s

misconduct beyond his undisputed Data Dome performance issues.

Specifically, all Plaintiff puts forth is that Dixon had “write-

ups,” and called the Data Dome consultant, Lisa Bouchard, a

“bitch.” Based on the evidence presented, this court cannot find

that Dixon was sufficiently “similar in all relevant respects”

to Plaintiff.

In Hoyle v. Freightliner, LLC, the plaintiff, after having

“significant problems with absenteeism,” leading to a “last

chance agreement” with her employer, was terminated for calling

in sick. 650 F.3d 321, 327–28, 337 (4th Cir. 2011). In that

case, the Fourth Circuit held that that the plaintiff had failed

to identify a valid comparator because “[w]hile [plaintiff]

identified similarly situated male employees who called in sick

at the time [she] did and were not disciplined, [plaintiff]

failed to identify any similarly situated men who also had

problems with excessive absenteeism, leading to a ‘last chance’

agreement.” Id. at 337. Similarly, here, although Plaintiff has

identified an individual (Dixon) who also had difficulties with

Data Dome, he has “failed to identify any similarly situated

[non-Black] employees who also had [a comparable history of

complaints regarding work product and behavior.]” Id.28

Further, the record shows that “differentiating or

mitigating circumstances” existed that “distinguish[e]d their

conduct [and] their employer’s treatment of them for it.” See

Haynes, 922 F.3d at 224. In response to the question “[w]hy was

[Dixon] not terminated for his difficulties with DataDome?”

Collins explained that unlike Plaintiff, Dixon’s difficulties

“were largely early on discussions. So not at the conclusion of

the campaign, not after we’ve learned our tools and applied

28 Accordingly, Plaintiff’s citation to Haynes v. Waste

Connections, Inc., is unavailing. (See Pl.’s Resp. (Doc. 39) at

7–8.) In that case, the comparator had “more infractions and was

less respectful to his superiors, . . . yet received more

favorable treatment,” than the plaintiff. 922 F.3d 219, 224 (4th

Cir. 2019).

them, but early on at the start.”29 (Pl.’s Ex. 4, Ted Collins

Dep. (Doc. 39-4) at 73.)

But even assuming Plaintiff could show that Dixon is a

valid comparator, he still fails to establish a prima facie case

because he has not demonstrated prong two: satisfactory job

performance.

ii. Job Performance

Under McDonnell-Douglas, a Plaintiff must “demonstrate that

he ‘was performing [his] job duties at a level that met [his]

employer’s legitimate expectations at the time of the adverse

action.’” Giles v. Nat’l R.R. Passenger Corp., 59 F.4th 696, 704

(4th Cir. 2023) (citation omitted). Notably, a plaintiff’s “own

testimony . . . cannot establish a genuine issue as to whether

[he] was meeting [his employer’s] expectations,” King v.

Rumsfeld, 328 F.3d 145, 149 (4th Cir. 2003), because “[i]t is

the perception of the decision maker which is relevant, not the

self-assessment of the plaintiff,” Giles, 59 F.4th at 704

(internal quotation marks and citation omitted).

29 Collins additionally explained that “[Dixon] brought

forth his concerns as questions and did not have the outburst

like [Plaintiff] did.” (Pl.’s Ex. 4, Ted Collins Dep. (Doc. 39-

4) at 73.) But this basis for differential treatment concerns a

disputed question of fact — whether Plaintiff indeed presented

his statement or question as an “outburst.” (See supra Section

III.B.2.i.)

Plaintiff has not demonstrated that he was meeting

Herbalife’s expectations at the time of the adverse action. He

has not provided any evidence, beyond his own assertions, that

he was a successful employee.30 Yet, Herbalife has provided

extensive evidence that Plaintiff had persistent performance and

behavioral issues in the two years leading up to his

termination, (see supra Section I), and at the Data Dome

meeting.31 See Purchase v. Astrue, 324 Fed. App’x 239, 241–42

(4th Cir. 2009) (“[Plaintiff] fails to demonstrate that she was

performing her job at a satisfactory level. The record is

replete with documentation of her performance shortcomings.”)

30 Plaintiff’s brief does not address the adequacy of his

job performance beyond stating that “as the record reflects

every allegation of inappropriate behavior by the Plaintiff was

investigated and they were all unfounded.” (Pl.’s Resp. (Doc.

39) at 11.) This appears to be in reference to the allegation

that Plaintiff inappropriately gestured to his genitals, for

which Defendant ultimately did not pursue disciplinary actions.

But Defendant has outlined a series of performance and

behavioral issues, unrelated to that allegations which are

undisputed by Plaintiff and supported by the record. (See supra

Section I.)

31 Although portions of Plaintiff’s alleged misconduct at

the Data Dome meeting are in dispute, Plaintiff has not disputed

that during the Data Dome final two-day presentation, he was

“not participating . . . with his group,” “rolled his eyes,” and

was “using his cell phone,” which was part of the umbrella of

behavior that Defendant explained in Plaintiff’s Termination

Letter was “opposed to . . . established Company policy, Company

values and the departmental Team operating Agreement.” (Pl.’s

Ex. 1, Termination Letter (Doc. 39-1) at 1–3.)

When a plaintiff fails to demonstrate he performed his job

satisfactorily, “he cannot state a prima facie case of disparate

treatment [and] the presumption that his termination was based

on discrimination cannot apply, and summary judgment . . . is

appropriate.” Parks v. La.-Pac. Corp., 400 F. Supp. 3d 393, 414

(W.D.N.C. 2019). Without any evidence that Plaintiff was

performing his job satisfactorily, he fails to establish a

necessary prong of the prima facie case of race discrimination

under § 1981.

Although Plaintiff argued the question of pretext

throughout his opposition brief, when the prima facie case has

not been met, the question of pretext is not relevant. See

Haywood, 387 Fed. App’x at 357.

In sum, because Plaintiff has failed to establish prong two

and prong four of the McDonnell Douglas framework, he has not

established a prima facie case of race discrimination, and thus

summary judgment as to this claim is appropriate.

C. Defendant’s Motion to Seal

Defendant filed a Motion to Seal its Brief in Support of

Summary Judgment. (Mot. to Seal (Doc. 33).) This motion seeks

only to seal Exhibit 16 of its Brief, which “contains health

records that Plaintiff Cameron J. Aikens has indicated he

considers to be confidential material.” (Id. at 1.) Defendant

states that “pursuant to Rule 5.4 and the parties’ Local Civil

Rule 5.5 Joint Report (ECF No. 17), Plaintiff will have 14 days

from the filing of this Motion to file a response providing the

materials and information required by LR 5.4(c)(3).” (Id.)

Plaintiff has not filed any response relating to this Motion to

Seal.

Local Rule 5.4 states:

No motion to seal will be granted without a sufficient

showing by the party claiming confidentiality as to

why sealing is necessary and why less drastic

alternatives will not afford adequate protection,

with evidentiary support, including affidavits or

declarations, and with citation to any supporting

statutes, case law, or other authority. If

confidential information needs to be discussed or

provided to make this showing, a sealed supplement to

the motion to seal may be filed separately. This

showing also must address the length of time for which

sealing is sought. Failure to file LR 5.4(c)(3)

supporting materials will result in denial of the

motion to seal and unsealing of the materials without

further notice.

LR 5.4(c)(3). Plaintiff, as the party seeking confidentiality of

Exhibit 16, has failed to comply with Local Rule 5.4.

Accordingly, this Motion to Seal will be denied without

prejudice to Plaintiff filing materials supporting the sealing

of this document consistent with Local Rule 5.4.

IV. CONCLUSION

This court grants Defendant’s Motion to Strike as to the

Wray Messages, (Doc. 39-6), and the Peele Email, (Doc. 39-7 at

5), because this evidence was responsive to RFPs, but not

disclosed during discovery, and Plaintiff’s failure to disclose

them was neither substantially justified nor harmless.

Accordingly, Plaintiff may not use them in support of his

Response in Opposition to Defendant’s Motion for Summary Judgment

pursuant to Federal Rule of Civil Procedure 37(c)(1).

This court grants Defendant’s Motion for Summary Judgment as

to Plaintiff’s claims for retaliation and racial discrimination

in violation of § 1981, because Plaintiff has failed to establish

a prima facie case for either claim.

This court denies without prejudice Defendant’s Motion to

Seal, because Plaintiff, as the party seeking confidentiality,

failed to comply with Local Rule 5.4.

For the foregoing reasons, IT IS THEREFORE ORDERED that

Defendant’s Motion for Summary Judgment, (Doc. 31), is GRANTED

and this case is DISMISSED.

IT IS FURTHER ORDERED that Defendant’s Motion to Seal, (Doc.

33), is DENIED WITHOUT PREJUDICE. The document, (Doc. 34-16),

shall remain sealed for 20 days to allow Plaintiff to file

materials supporting the sealing of this document consistent with

Local Rule 5.4.

IT IS FURTHER ORDERED that Defendant’s Motion to Strike,

(Doc. 43), is GRANTED as to the Wray Messages and the Peele Email

and DENIED as to the Burns messages.

IT IS FURTHER ORDERED that the Final Pretrial Conference set

for February 27, 2025, is CANCELED.

A Judgment dismissing this action will be filed

contemporaneously herewith.

This the 24th day of February, 2025.

Whi tien

United States District Judge

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