NELSON v. THREE POINTS CENTER, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

TYLIYA J. NELSON, )

)

Plaintiff, )

)

v. ) 1:23CV527

)

THREE POINTS CENTER, LLC, et al., )

)

Defendants. )

)

MEMORANDUM OPINION AND ORDER

LORETTA C. BIGGS, District Judge.

Plaintiff, Tyliya Nelson (hereinafter “Plaintiff”), brought this lawsuit against Three

Points Center, LLC, Three Points Center North Carolina, LLC, Three Points Properties, LLC,

Three Points Properties North Carolina, LLC, Three Points Academy, Inc., and Thane Palmer

(hereinafter “Defendants”), alleging unlawful retaliatory discrimination under 42 U.S.C. § 1981

and Title VII of the Civil Rights Act of 1964 (hereinafter “Title VII”), codified at 42 U.S.C.

§§ 2000e–2000e-17. (ECF No. 1.) Before the Court is Defendants’ Motion for Summary

Judgment on all claims. (ECF No. 32.) For the reasons stated herein, Defendants’ motion

for summary judgment will be granted.

I. BACKGROUND

A. Factual Background

Plaintiff, Tyliya Nelson, a young African-American woman, (ECF No. 1 at 1), was an

employee of a therapeutic boarding school facility, owned and operated by Defendant Three

Points Center North Carolina, LLC, (hereinafter “the Facility”), located in Chatham County,

North Carolina. (See ECF Nos. 33-15 at 2; 33-16 at 2; ECF No. 33-12 at 62:1-3.) Plaintiff was

employed at the Facility for five months. (ECF Nos. 33-15 at 2; 33-26 at 2.) The Facility

serves clients who include adopted teenage girls (hereinafter “the students”) who suffer or

have suffered from trauma, disorders, depression, or have other specialized care needs, and

also serves their families. (ECF No. 33-4 ¶ 3.) Plaintiff was hired as a Youth Mentor at the

Facility on November 29, 2021, by the Group Living Director, Craig Butcher (hereinafter

“Director Butcher”). (ECF Nos. 33-15 at 2; 33-6 ¶¶ 2, 9.) Youth Mentors are required at all

times to accompany the students in the Facility, including in class, individual therapy sessions,

and group therapy sessions. (ECF Nos. 33-3 ¶ 8; 33-4 ¶ 4.)

Youth Mentors are employees of the Group Living department of the Facility and are

described as non-clinical and entry-level employees. (ECF No. 33-7 ¶ 11.) Youth Mentors

are managed by Shift Supervisors and the Group Living Director at the Facility. (See ECF No.

33-10 at 262:22-25; see also ECF Nos. 33-1 ¶ 11; 33-3 ¶ 14.) The Group Living Director

oversees the day-to-day “group living” operations, which Youth Mentors are a part of, and is

in charge of hiring, firing, promoting and disciplining the Youth Mentors, among others.

(ECF Nos. 33-6 ¶ 7; 33-7 ¶ 11.) Shift Supervisors have the authority to initiate termination

proceedings against Youth Mentors by recommending termination. (See ECF Nos. 33-2 ¶¶ 2,

5, 6–7.) If the termination recommendation is approved by the Group Living Director, a

Youth Mentor could be terminated. (See ECF No. 33-2 ¶¶ 5, 6–7.) The record reflects that

Shift Supervisor Daniel Gschwind was Plaintiff’s immediate supervisor and that Plaintiff

understood Shift Supervisor Gschwind to be her supervisor. (See ECF Nos. 33-2 at 5, 6–7;

33-10 at 262:22-25; 33-18 at 6–7.) One other Shift Supervisor who is relevant to the facts of

this case, is Hannah Locke. (ECF Nos. 33-1 ¶ 11; 33-3 ¶¶ 3, 14.)

When Plaintiff was onboarded on December 6, 2021, she reviewed and signed several

employment documents. (ECF Nos. 33-15 at 2; 33-17 at 2–7.) By signing, Plaintiff was

“agreeing and acknowledging that [she] will read and follow the policies and procedures”

contained therein. (ECF No. 33-19 at 2; see also ECF Nos. 33-8 ¶¶ 7, 11; 33-17 at 7.) One

document was titled “Welcome to Three Points Center and Resource Management, Inc.”

(hereinafter “Employee Handbook”).1 (ECF No. 33-18 at 1.) Another document was titled,

“Policy and Procedures Manual” (hereinafter “Employee Manual”).2 (ECF No. 33-19 at 1.)

The Employee Handbook and Manual were accessible to Plaintiff throughout her

employment. (ECF No. 33-8 ¶ 15; see also ECF No. 33-19 at 2.)

For approximately the first month of her work at Three Points North Carolina Plaintiff

assisted other staff in setting up the center for the arrival of the students. (ECF No. 33-10 at

89:3-9.) Beginning in January 2022, students arrived at the Facility, and Plaintiff began her

duties as a Youth Mentor. (See ECF No. 33-13 at 121:9-12.) On February 21, 2022, Plaintiff,

after being provided with her 90-day evaluation, met with Director Butcher about her

performance assessment. (ECF No. 33-11 at 85:11-23, 111:4-22.) Plaintiff’s 90-day evaluation

stated in relevant part that according to Director Butcher Plaintiff’s attendance/punctuality,

1 The Employee Handbook provides that employees are “expected to be available and ready to work

at the established starting time and are expected to remain at work and perform [their] work

assignments during [their] shift.” (ECF No. 33-18 at 6.) “Failure to comply with [the attendance]

policy will result in disciplinary action up to and including termination of employment.” (Id.) Further,

the Employee Handbook provides that “[f]requent absences or tardiness will not be tolerated and are

subject to disciplinary action up to and including termination of employment.” (Id.)

2 The Employee Manual outlines when attendance violations (known as “occurrences”) may result in

disciplinary actions for employees. (ECF No. 33-19 at 4.) An occurrence is defined as an employee

being “documented as an absence or a late,” among other things including an absence, arriving twice

late to work, leaving work early twice, failing twice to clock in or out. (Id.) Further, a single day of

dependability/reliability, job knowledge, job quality, and cooperation were “satisfactory,” and

all other categories of evaluation were “very good.” (ECF No. 33-20 at 2–3.) On February

22, 2022, Notwithstanding the attendance issues documented in her evaluation, Plaintiff

received a raise. (ECF No. 33-11 at 165:18-24, 166:12–167:5.)

Also on February 22, 2022, Shift Supervisor Gschwind issued an attendance write-up

to Plaintiff. (See ECF No. 33-21 at 2; see also ECF No. 33-11 at 125:13-17.) The attendance

write-up stated that Plaintiff was late, in excess of fifteen minutes, on February 8, 2022, and

February 20, 2022. (ECF No. 33-21 at 2.) The attendance write-up further stated that Plaintiff

left twenty-one minutes early without approval from her supervisor.3 (Id.) Finally, the write-

up states “[Plaintiff] has received a written warning. The next occurrence will result in a final

written warning. Any occurrence after will result in termination.” (Id.) The document is

signed and acknowledged by Plaintiff and Shift Supervisor Gschwind. (Id.) Plaintiff’s work

absences were not restricted to those reflected in her February 22, 2022, write-up. (See ECF

No. 33-22 at 2.) Although Plaintiff was written up for her tardiness when greater than fifteen

minutes, in total she was “late” as defined by the employee attendance policy twice in January

2022 and nine times in February 2022. (Id.)

Plaintiff was late again three times in March 2022. (Id. at 2–3.) The record reflects that

Shift Supervisor Gschwind wanted to fire Plaintiff in March 2022. (ECF No. 33-2 ¶¶ 6–7.)

However, Director Butcher declined to accept Shift Supervisor Butcher’s termination

recommendation at that time. (Id.) Subsequently, Plaintiff was also late twice in the four days

she worked in April, including on April 5, 2022. (ECF No. 33-22 at 4.) The record reflects

3 Plaintiff’s official timecard for her on-site employment also reflects Plaintiff leaving before the end

that Plaintiff was absent more than her Youth Mentor contemporaries, and those who had

absence records that were similar to Plaintiff were suspended or fired. (ECF Nos. 33-24 at 2;

33-25 at 2–3; 38-16 at 10–11, 12; 38-9 at 3–5.)

Several occurrences transpired on April 5 that are relevant to this action. The first

involved Defendant Palmer, a licensed marriage and family therapist and the Program and

Clinical Director of the Facility. (ECF No. 33-7 ¶ 2.) Defendant Palmer organized a group

therapy session between the students and clinicians4 to discuss on-going tensions between

students at the school about using a racial epithet, specifically the “N” word, among other

issues. (ECF Nos. 33-4 ¶¶ 6–7; 33-13 at 135:7-12, 136:7–137:5, 137:13-17.) Because all the

students were in attendance, several Youth Mentors accompanying them were also there.

(ECF No. 33-3 ¶10.) During the session, when Defendant Palmer was admonishing all

students that they should not call anyone the “N” word or otherwise use the word, he said the

following: “nobody is calling anyone a [“N” word] here.” (ECF Nos. 33-4 ¶ 7; 33-3 ¶ 11; see

also 33-1 ¶ 8.) Defendant Palmer did not say the “N” word again during the session and

apologized to staff for saying it on that occasion. (ECF No. 33-1 ¶¶ 6, 9; 33-4 ¶ 7; 33-3 ¶ 11.)

Palmer’s use of the “N” word during this April 5, 2022, session will hereinafter be referred to

as “the Incident.”

Plaintiff was not present for the Incident; she was offsite escorting a student to an

appointment. (ECF No. 33-3 ¶ 12; see also ECF No. 33-32 at 2–3.) Another Youth Mentor,

Sharecka Brewer, was present at the meeting and told Plaintiff over text about the Incident,

however, Sharecka Brewer also stated under oath that she did not actually hear Defendant

4 As the Program and Clinical Director of the Facility, Defendant Palmer supervised the clinical

Palmer say the “N” word. (ECF No. 33-1 ¶¶ 6–7; see also ECF No. 33-32 at 2.) Upon Plaintiff

and the student’s return to the Facility, the session was still occurring, so Plaintiff began to

record it. (ECF No. 33-10 at 242:20–243:5.) Plaintiff stated that she intended to get

Defendant Palmer to say the “N” word again while she was recording, but it did not occur.

(Id.) Plaintiff alleges recording this part of the session was protected activity under Title VII.

(ECF No. 36 at 11.)

A second occurrence transpired later in the afternoon of April 5, 2022, Shift Supervisor

Locke and Plaintiff, among others, were involved in a verbal altercation that took place, in

part, in front of students. (ECF Nos. 33-1 ¶ 11; 33-3 ¶ 14; see also ECF No. 33-39 at 2:6–6:25.)

Shift Supervisor Locke states that she “confronted Plaintiff for either leaving the girls

unattended in a computer room or leaving the girls unattended with a laptop,” providing

unapproved food to students when not permitted to do so, and Plaintiff’s attitude among

other things. (ECF Nos. 33-3 ¶ 14; 33-39 at 2:6–6:25; 33-10 at 145:18–146:5.) Plaintiff and

other Youth Mentors on her shift were told they would be written up for their conduct. (ECF

No. 33-10 at 145:18–146:5.) The other Youth Mentors reprimanded included Sharecka

Brewer, who is Black, and Charlie Brackett and Avery McLaurin, who are white. (Id. at 146:6-

20.)

After being informed, on either the evening of April 5 or the morning of the April 6,

of the confrontation that occurred between the Youth Mentors, to include Plaintiff, and Shift

Supervisor Locke, Plaintiff’s Shift Supervisor Gschwind informed Director Butcher, and then

Plaintiff and the other Youth Mentors involved, that these Youth Mentors would be written

up for what occurred. (ECF Nos. 33-2 ¶ 11; 33-31 at 5; id. at 145:18–146:5.) Shift Supervisor

Gschwind also reviewed Plaintiff’s timecard and discovered Plaintiff arrived late for work on

April 5, 2022. (ECF No. 33-2 ¶ 14.)

The morning of April 6, 2022, Shift Supervisor Gschwind recommended Plaintiff’s

termination to Director Butcher because of her attendance violations and the interactions she

had with Supervisor Locke and Youth Mentor Charlie Brackett on April 5, 2022. (ECF Nos.

33-2 ¶ 14; 33-6 ¶ 15.) Director Butcher stated that he would approve Shift Supervisor

Gschwind’s termination recommendation if it was supported by Plaintiff’s timecards, and

further he asked for documentation. (ECF Nos. 33-2 ¶ 14; 33-6 ¶ 15.) Shift Supervisor

Gschwind then proceeded to collect that documentation. (ECF No. 33-2 ¶ 15.) Also, at 7:42

AM on the morning of April 6, 2022, Plaintiff sent a group text message; the group was

comprised of Youth Mentors, Charlie Brackett, Avery McLaurin, and Sharecka Brewer, Shift

Supervisors Locke and Gschwind, and Director Butcher. (ECF Nos. 33-34 at 2–3; 33-10 at

261:5–262:7.) Plaintiff’s message to the group stated:

“Hey heads up if we do something that ‘supervisors’ don’t like please say

something then don’t wait until the next day. [C]orrect us then and also let’s

not just take a supervisors[sic] word on something without further investigation

and remember I don’t have to be your friend you’re my boss and I will be

respectful to u[sic] but that does not make us buddy buddy so don’t say I’m

being disrespectful because I don’t talk to you in that way :) and last but not

least any problems with me please speak on it [emoji depicting salute].”

((ECF No. 33-34 at 2.)

Director Butcher offered to meet one-on-one with Youth Mentors about the subject of

Plaintiff’s message. (Id. at 3; ECF No. 33-1 ¶ 13.) Shift Supervisor Gschwind was not part of

these meetings. (ECF No. 33-2 ¶ 13.) According to the text message, Director Butcher’s

meeting with Plaintiff was scheduled for 11:00 AM. (ECF No. 33-34 at 3.) Plaintiff recorded

this meeting. (ECF Nos. 33-38; 33-39.)

Plaintiff began this meeting by discussing in detail the interactions and disagreements

between her, the Youth Mentors, and Shift Supervisor Locke on April 5, 2022. (ECF No. 33-

39 at 2:6-–6:25.) Next, Plaintiff began to talk about the conduct of another Youth Mentor,

Charlie Brackett, whom she believes is kowtowing to Shift Supervisors. (Id. at 7:1–8:1.) Then,

Plaintiff began discussing the Incident involving Defendant Palmer. (Id. at 8:2–9:4.) Plaintiff

quotes this part of the meeting when alleging she engaged in protected activity under Title

VII. (ECF No. 36 at 11.) This portion of the conversation was about a minute long. (See

ECF No. 33-38.) The entire meeting was approximately 30 minutes long. (See id.) Because

of the importance of this portion of their conversation to her claims, what Plaintiff and

Director Butcher discussed in that part of the meeting is reflected in more detail below.

In the afternoon of April 6, 2022, Shift Supervisor Gschwind presented Director

Butcher with a write-up and Plaintiff’s timecards to support his recommendation of

termination. (ECF Nos. 33-2 ¶ 15; 33-6 ¶ 16.) Shift Supervisor Gschwind’s write-up and

termination notice reflected five of Plaintiff’s late appearances across March and April, and

notes Plaintiff calling out on March 30, 2022, without coverage. (ECF Nos. 33-26 at 2; 33-3

¶ 13.) The write-up also notes that the assigned corrective action for Plaintiff was her

termination. (Id.) After being presented this documentation, Director Butcher approved Shift

Supervisor Gschwind’s recommendation. (ECF No. 33-6 ¶ 16.) Plaintiff was fired on April

6, 2022, and her termination and notice of termination were written and delivered to her at

the end of shift, by Shift Supervisor Gschwind. (ECF Nos. 33-26; 33-2 ¶ 15.)

As a result of her firing, Plaintiff brings two retaliation claims against several

defendants, including one individual, Thane Palmer (hereinafter “Defendant Palmer”), and

five business entities. (ECF No. 1 ¶¶ 9–32.) She brings her § 1981 retaliation claim against

Defendant Palmer. (See id. ¶¶ 93–112.) In addition, she brings her Title VII claim against five

entities, Three Points Center, LLC, Three Points Center North Carolina, LLC, Three Points

Properties, LLC, Three Points Properties North Carolina, LLC, Three Points Academy, Inc.

(hereinafter “Defendant Entities”). (Id. ¶¶ 113–22.)

B. Procedural History

Because Defendants have raised evidentiary and procedural objections to the filings for

the instant motion, the procedural history of the filings before this Court will be discussed in

some detail. On June 9, 2022, Plaintiff filed her initial Charge of Discrimination with the

Equal Employment Opportunity Commission (hereinafter “EEOC”). (ECF No. 33-29 at 2.)

On June 29, 2023, Plaintiff filed her Complaint alleging retaliatory discharge under Title VII

and 42 U.S.C. § 1981. (ECF No. 1 at 1.) On August 25, 2023, Defendants collectively filed

their Answer to this Complaint. (ECF No. 7.)

Following discovery, on May 20, 2024, Defendants collectively filed their Motion for

Summary Judgment on both of Plaintiff’s claims of retaliatory discharge.5 (ECF No. 32.) On

May 28, 2024, Plaintiff filed an Unopposed Motion for Extension of Time to File her

Response to Defendants’ Motion for Summary Judgment. (ECF No. 34 at 1.) The next day,

Plaintiff’s Motion was granted by this Court’s Magistrate Judge, and Plaintiff was given up to

and including July 22, 2024, to file her Response. (Text Order May 29, 2024.) At 11:58 PM

on July 22, 2024, Plaintiff filed her Response in Opposition to Defendants’ Motion for

5 If summary judgment were denied, Defendants made the following arguments in the alternative: (1)

Plaintiff’s claim for front pay to be denied based on the after-acquired evidence defense; (2) Plaintiff’s

claim for back pay should be limited based on the after-acquired evidence defense; (3) Plaintiff is not

entitled to punitive damages; and that (4) TPC Utah, TP Properties Utah, TP Properties North

Carolina, TPA should be dismissed from the action because Plaintiff cannot raise a genuine issue of

Summary Judgment, (ECF No. 36), with 11 exhibits attached, (ECF Nos. 36-1–36-11).

(Notice of Electronic Filing July 22, 2024.)

At 12:58 AM on July 23, 2024, Plaintiff’s counsel sent an email to Defendants’ counsel

and an email address for this Court. (ECF No. 45-1 at 1.) In this email, Plaintiff’s counsel

stated that he would like to “withdraw or strike [a footnote] of [his] pleading before motions

are referred or opposing counsel responds officially.” (Id.) Though not reflected on this

Court’s docket, a member of the Court Clerk’s Office responded and said that Plaintiff’s

counsel would need to have its request addressed through an amended filing.

At 1:18 AM on July 23, 2024, Plaintiff filed her Certificate of Service for her Response

in Opposition to Motion for Summary Judgment, (ECF No. 37). (Notice of Electronic Filing

of Certificate of Service July 23, 2024.) Plaintiff’s filing included an email chain and attachment

“Plaintiff’s Summary Judgment Exhibit Index” which reflected 33, not 11, exhibits. (ECF No.

37 at 3–4.) The email chain reflected two messages from Plaintiff on July 22, 2024, to Counsel

for Defendants. (Id. at 2.) In the first message, at 11:49 PM, Plaintiff’s counsel states he is

“not adding any more which [sic] why I’m sending this. It’s the exhibit upload that got me.

See attached for our records. I’m getting the brief in before 12 and then will have to correct

and clean up my filing.” (Id.) In the second message, at 11:52 PM, Plaintiff’s counsel states

“Also, I’m serving the deposition transcripts conventionally. I highlighted my PDF and I

could not get my comments deleted efficiently. See attached for the record.” (Id.) Plaintiff’s

counsel did not explain the untimeliness of this Certificate of Service.

At 3:03 AM on July 23, 2024, Plaintiff made an additional filing which included 33

attachments, (ECF Nos. 38-1–38-33), which appear to be the 33 exhibits Plaintiff referred to

in the earlier filed index, (ECF No. 37 at 3–4). Plaintiff’s counsel did not explain the

untimeliness of her filing of these additional exhibits.

At 5:24 PM on July 23, 2024, Plaintiff made an additional filing, (ECF No. 39), and

represented that its purpose was to include the entirety of four depositions of Defendants’

employees Director Butcher, Norm Thibault,6 Defendant Palmer, and Heidi Palmer7 in the

summary judgment record. (Notice of Electronic Filing of Transcripts July 23, 2024; id. at 1.)

Plaintiff purportedly made this filing pursuant to Federal Rule of Civil Procedure 32(a)(6),8

arguing that because Defendants had included excerpts of these depositions in their Motion

for Summary Judgment, she filed the depositions in their entirety. (ECF No. 39 at 1.)

Plaintiff’s counsel also did not explain the untimeliness of this filing.

On July 25, 2024, Plaintiff, without moving for Leave from this Court to do so, filed

an Amended Response in Opposition to Defendants’ Motion for Summary Judgment. (ECF

No. 40 at 1.) This filing also included an amended Exhibit Index. (ECF No. 40-1.) On July

31, 2024, Defendants collectively filed their Reply in Support of their Motion for Summary

Judgment. (ECF No. 41.) In addition to responding to Plaintiff’s arguments, Defendants

made several evidentiary objections to Plaintiff’s filings on the grounds of this District’s local

6 At the time of Plaintiff’s employment, Norm Thibault was the CEO of TPC Utah and TPC North

Carolina. (ECF No. 33-9 ¶ 2.)

7 Heidi Palmer was the Human Resources Director at the Facility at the time of Plaintiff’s employment.

(ECF No. 33-8 ¶ 2.)

8 This rules states: “If a party offers in evidence only part of a deposition, an adverse party may require

the offeror to introduce other parts that in fairness should be considered with the part introduced,

and any party may itself introduce any other parts.” Fed. R. Civ. P. 32(a)(6). However, Plaintiff’s

filing did not make any showing of why “in fairness” the entirety of these four depositions must be

included in the record and did not ask Defendants to make such a showing. (ECF No. 39 at 1.)

rules, including the admissibility of Plaintiff’s exhibits under the Federal Rules of Evidence.

(Id. at 1, 2, 2 n.1.) Defendants also objected to Plaintiff filing an Amended Response in

Opposition to Defendants’ Motion for Summary Judgment. (Id. at 2 n.2.) Defendants raised

these objections a second time in later filings related to their Motion to Strike, (ECF No. 45

at 2–4), which was resolved by a separate Order, (ECF No. 60).

II. DEFENDANTS’ OBJECTIONS TO PLAINTIFF’S FILINGS OPPOSING

SUMMARY JUDGMENT

As a threshold matter, before this Court can address the merits of Defendants’ Motion

for Summary Judgment, it must first address several procedural and evidentiary objections

raised by Defendants to Plaintiff’s filings made in response to Defendants’ motion.

A. Procedural Objections

1. The Timeliness of Plaintiff’s Summary Judgment Filings

Defendants challenge Plaintiff’s Response in Opposition to Defendants’ Motion for

Summary Judgment as “untimely,” arguing that Plaintiff’s brief, exhibits, and certificates of

service were not completely filed until the evening of July 23, 2024, one day after the filing

deadline. (ECF No. 41 at 2, 2 n.1.) Defendants further object to Plaintiff filing an Amended

Response on July 25, 2024, two days after Plaintiff’s counsel represented on July 23, 2024, he

found a mistake in his original filing. (Id. at 2 n.1.)

This District’s Local Rules provide that the “failure to file a brief or response within

the time specified in this rule shall constitute a waiver of the right thereafter to file such brief

or response, except upon a showing of excusable neglect.” L.R. 7.3(k). Further, Federal Rule

of Civil Procedure 6(b) provides that “[w]hen an act may or must be done within a specified

time, the court may, for good cause, extend the time . . . with or without motion or notice if

the court acts, or if a request is made, before the original time or its extension expires; or on

motion made after the time has expired if the party failed to act because of excusable neglect.”

Fed. R. Civ. P. 6(b)(1)(A)–(B).

Here, Plaintiff did not request an additional extension of time to file her Response.

Thus, under Federal Rule of Civil Procedure 6(b) and Local Rule 7.3(k), Plaintiff has waived

her right to respond to Defendants’ summary judgment motion unless she can, by motion,

establish that her filings should be still considered because of “excusable neglect.” Fed. R.

Civ. P. 6(b)(1)(B); L.R. 7.3(k). However, Plaintiff has not made such a motion for the filings

made after her extended deadline, including the Amended Response in Opposition to

Defendants’ Motion for Summary Judgment. The Court therefore finds that Plaintiff’s

amended response to Defendants’ motion for summary judgment is untimely and will not be

accepted.9 Plaintiff’s timely filed Response in Opposition to Defendants’ Motion for

Summary Judgment (hereinafter “Response in Opposition”), (ECF No. 36), will be considered

by this Court for the instant motion for summary judgment.

As for the exhibits supporting Plaintiff’s Response, (ECF Nos. 38-1–38-33), though

they were untimely filed on ECF, the record reflects that Defendants were sent those exhibits

via email before the filing deadline. (ECF No. 37 at 2.) Moreover, Defendants had ample

enough time to file both their Reply Brief and accompanying evidentiary objections to

Plaintiff’s later filed Response exhibits, (ECF Nos. 38-1–38-33). (ECF No. 41 at 4–6.)

Therefore, this Court finds that, with respect to the 33 exhibits, any prejudice to Defendants

was, at best, de minimis. See, e.g., Khouri v. Nat'l Gen. Ins. Mktg., Inc., No. 1:20CV580, 2021 WL

1923763, at *3 (M.D.N.C. Mar. 5, 2021) (allowing a late filing on similar grounds); Davis v. Old

9 The Court, upon review of the two responses filed by Plaintiff, finds that the difference between

Plaintiff’s two Responses in Opposition were minimal, the only substantive change being a deleted a

Dominion Tobacco Co., Inc., No. 2:09CV603, 2010 WL 11565856, at *2 (E.D. Va. Oct. 13, 2010)

(same). Accordingly, the Court will consider the exhibits supporting Plaintiff’s Response,

(ECF No. 38-1–38-33), filed on July 23, 2024.

2. The Length of Plaintiff’s Response Brief

Defendants object to the length of Plaintiff’s Response in Opposition because it

incorporates a discovery brief, an image of a deposition transcript page, and two exhibits.

(ECF No. 41 at 2 n.1; see also ECF No. 45 at 3–4.) Plaintiff admits that incorporating the

discovery brief is against this District’s Local Rules but asks “that the [C]ourt exercise its

discretion to consider a previously filed motion prior to the close of discovery” for the

resolution of Defendants’ Motion for Summary Judgment. (ECF No. 36 at 26 n.9 (citing Fed.

R. Civ. P. 56(c)(3))10.)

This District’s Local Rules provide that “[e]xcept with the Court’s prior permission,

briefs prepared on a computer in support of motions and responsive briefs shall not exceed

6,250 words.” L.R. 7.3(d)(1). This word count includes “the body of the brief, headings and

footnotes.” Id. The Local Rules also provide that “[a] party may not incorporate by reference

arguments made in another brief or file multiple motions to circumvent these limits.” L.R.

7.3(d)(3). “The word limitations imposed by the Local Rules serve to facilitate the equitable

and efficient adjudication of motions by the Court.” Williamson v. Prime Sports Mktg., LLC,

No. 1:19CV593, 2022 WL 5180420, at *2 (M.D.N.C. Feb. 28, 2022) (citation and internal

quotation marks omitted). For this reason, the remedy for such violations is often striking the

offending documents. L.R. 83.4(3); see, e.g., id.

10 Federal Rule of Civil Procedure 56(c)(3) states “[t]he court need consider only the cited materials,

As earlier stated, Plaintiff admits to violating the Local Rules by requesting that this

Court consider a discovery brief that it incorporated in its Response in Opposition by

reference. (ECF No. 36 at 26 n. 9.) Plaintiff’s discovery brief, therefore, will not be considered

for the resolution of Defendants’ Motion for Summary Judgment. Similarly, Plaintiff did not

request Leave from this Court to permit her Response in Opposition to exceed 6,250 words.

However, because of the advanced stage of the litigation, instead of striking the entirety of

Plaintiff’s Response in Opposition, this Court will disregard the portions of the document

which blatantly violates the Local Rules, specifically where Plaintiff pasted a deposition page

into its Response in Opposition. (ECF No. 36 at 3, 16.)

B. Defendants’ Evidentiary Objections to Plaintiff’s Response in

Opposition

Defendants challenge seven exhibits supporting Plaintiff’s Response in Opposition,

(ECF No. 38-6, 38-11, 38-12, 38-15, 38-18–38-19, 38-25), pursuant to Federal Rule of Civil

Procedure 56(c)(2) and this District’s local rules. (ECF No. 41 at 4–6 (citing Fed. R. Civ. P.

56(c)(2); L.R. 7.6).) Defendants request that this Court strike the challenged exhibits or

otherwise disregard them in its resolution of Defendants’ Motion for Summary Judgment. (See

id. at 4, 6.) Plaintiff argues that Defendants’ objections should be overruled because “the

objections raised are not convincing [and] are contrary to the aims of the rules and applicable

precedent governing the motions and arguments currently pending before the Court.” (ECF

No. 43 at 2 (citations omitted).)

Federal Rules of Civil Procedure 56(c) provides in relevant part, “[a] party asserting

that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to

particular parts of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A). In assessing a summary

trial. Kennedy v. Joy Techs., Inc., 269 F. App’x 302, 308 (4th Cir. 2008) (citing Maryland Highways

Contractors Ass’n, Inc. v. State of Maryland, 933 F.2d 1246, 1251 (4th Cir. 1991)). Therefore, “[a]

party may object that the material cited to support or dispute a fact cannot be presented in a

form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2).

Under this District’s local rules, “a party may assert evidentiary objections in its . . .

reply memorandum to factual allegations contained in . . . replies.” L.R. 7.6. “A district court

possesses broad latitude in ruling on the admissibility of evidence” and rulings are reviewed

for an abuse of discretion. Kennedy, 269 F. App’x at 308 (citing GE v. Joiner, 522 U.S. 136, 141–

42 (1997)).

The Court will address the parties’ arguments for the evidentiary objections in turn.

1. Defendants’ Objection to Plaintiff’s Exhibit, (ECF No. 38-6), is

Sustained

This objection pertains to a page of one of Plaintiff’s exhibits, (ECF No. 38-6 at 3),

which Defendants challenge under Federal Rules of Evidence 901 and 403. (ECF No. 41 at

6.) The page is a spreadsheet which purports to compile a list of former employees at TPC

North Carolina, who hired those employees, if those employees were fired or quit, their length

of employment, their total hours spent on the job, and other notes. (ECF No. 38-6 at 3.)

Defendants argue that this spreadsheet, (id.), should be stricken and disregarded by this

Court because the information it contains was created by Plaintiff’s counsel, includes Plaintiff’s

counsel’s commentary, and cites to “exhibits” but does not identify the exhibit by number.

(ECF No. 41 at 6.) Plaintiff’s counsel admits to creating the spreadsheet and including his

commentary in it, but he characterizes his commentary as “benign.” (ECF No. 43 at 9.)

Plaintiff’s counsel also provided an updated version of the spreadsheet, (ECF No. 43-4 at 2),

Defendants’ remaining objections are “trivial,” and that there “appears to be nothing

misleading, confusing or unfairly prejudicial about” the challenged exhibit. (ECF No. 43 at

9.)

The Court views the principal issues with the challenged exhibit, (ECF No. 38-6), to

be whether it can be authenticated and by whom it must be authenticated. The Federal Rules

of Evidence provide that authentication of evidence requires “the proponent [to] produce

evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed.

R. Evid. 901(a). Although the spreadsheet, (ECF No. 38-6 at 3), was created by referencing

discovery evidence, it is Plaintiff’s counsel who created the document and wrote the

commentary therein. (ECF No. 43 at 8.) Therefore, at a trial, only Plaintiff’s counsel could

testify to its authenticity, and he would likely rely on hearsay to testify to the spreadsheet’s

authenticity, both actions being impermissible. Therefore, this Court finds that the

spreadsheet in the challenged exhibit, (ECF No. 38-6 at 3), cannot be presented in a form

admissible at trial as Rule 56 requires, and thus the exhibit cannot be considered for

Defendants’ Motion for Summary Judgment. Fed. R. Civ. P. 56(c)(2).

2. Defendants’ Objection to Plaintiff’s Exhibit, (ECF No. 38-11), is

Sustained

This objection pertains to Plaintiff’s exhibit, (ECF No. 38-11), which Defendants

challenge under Federal Rules of Evidence 403, 404, 405, and 802. (ECF No. 41 at 6.) The

challenged exhibit, (ECF No. 38-11), is the first page of an online newspaper article, written

by a non-party and dated August 12, 2022; it is titled: “Three Utah teen treatment centers

disciplined for assaults, ‘unnecessary’ seclusion and painful restraints.” (ECF No. 38-11 at 2.)

The article is mostly redacted, and no sealed version is available for the Court’s review. (Id.)

Defendants argue that this challenged exhibit, (ECF No. 38-11), should be stricken and

disregarded by this Court on the grounds of the rules of evidence listed above, however,

Defendants do not explain further. (ECF No. 41 at 6.) Plaintiff does not explain why this

challenged exhibit, (ECF No. 38-11), should survive Defendants’ evidentiary objection

however, requests that the exhibit be considered by the Court. (ECF No. 43 at 11.) Rather,

Plaintiff “requests that the court consider any probative information in [this exhibit] and any

other relevant evidence ‘in the record.’” (Id. (citation omitted).)

The challenged exhibit, (ECF No. 38-11), regardless of the amount redacted, is likely

hearsay. See Fed. R. Evid. 801(c)(1)(2). The Fourth Circuit has consistently held that

newspaper articles are hearsay when used to prove the factual matters asserted therein. United

States v. ReBrook, 58 F.3d 961, 967 (4th Cir. 1995), abrogated on other grounds by Neder v. United

States, 527 U.S. 1 (1999); see also Greene v. Scott, 637 F. App’x 749, 751–52 (4th Cir. 2016) (citing

Nooner v. Norris, 594 F.3d 592, 603 (8th Cir. 2010)). Plaintiff has not provided an affidavit

from the declarant, the article’s writer, certifying that the actions and allegations contained in

the article occurred; yet Plaintiff appears to be offering the article as proof of the allegations

against Defendants’ therapeutic boarding schools. Further, Plaintiff has not asserted this

article falls under an exception to the hearsay rule. (See ECF No. 43 at 11.) Therefore, this

Court concludes that Plaintiff’s exhibit, (ECF No. 38-11), is inadmissible hearsay. See Fed. R.

Evid. 801(c)(1)–(2). Accordingly, the challenged exhibit cannot be considered for

Defendants’ Motion for Summary Judgment. Maryland Highways Contractors Ass’n v. Maryland,

933 F.2d 1246, 1251 (4th Cir. 1991) (citations omitted).

3. Defendants’ Objection to Plaintiff’s Exhibit, (ECF No. 38-12), is

Sustained

This objection pertains to Plaintiff’s exhibit, (ECF No. 38-12), which Defendants

challenge under Federal Rules of Evidence 403, 404, 405 and 802. (ECF No. 41 at 6.) The

challenged exhibit, (ECF No. 38-12), appears to be a July 27, 2022, letter from the Utah

Department of Human Services Office of Licensing, purporting to place TPC Utah’s

Residential Treatment License on “Conditional Status” for violations of several Utah

Administrative Rules. (ECF No. 38-12 at 2.) The letter is largely redacted and there is no

sealed version available for the Court’s review. (See generally id.)

Defendants argue that this challenged exhibit, (ECF No. 38-12), should be stricken and

disregarded by this Court on the grounds of the rules of evidence listed above, but do not

explain further. (ECF No. 41 at 6.) Plaintiff again does not explain why this challenged

exhibit, (ECF No. 38-12), should survive Defendants’ evidentiary objection but asks that it be

considered by the Court. (ECF No. 43 at 11.) Defendants’ hearsay objection is the most

pressing to this Court for the instant motion. See Maryland Highways Contractors, 933 F.2d at

1251.

The letter contained in the challenged exhibit, (ECF No. 38-12), is an out of court

statement, Fed. R. Evid. 801(c)(1), and Plaintiff does not explain if this document is being

offered for the truth of the matter asserted. (ECF No. 43 at 11.) Because Plaintiff has not

identified the relevance of this exhibit, the Court therefore is unable to assess Plaintiff’s

purpose in offering this exhibit. (Id.) Yet, upon the Court’s own review of the challenged

exhibit, its only conceivable purpose is to make a characterization about TPC Utah and the

operation of its therapeutic boarding school, (See ECF No. 38-12), which would be a use for

Plaintiff does not argue the challenged exhibit falls under a hearsay exception, nor does the

Court so find. (ECF No. 43 at 11); see Fed. R. Evid. 803(8)(A)(i)–(iii). Accordingly, because

the challenged exhibit, (ECF No. 38-12), is inadmissible hearsay, it cannot be considered for

Defendants’ Motion for Summary Judgment. Maryland Highways Contractors, 933 F.2d at 1251.

4. Defendants’ Objection to Plaintiff’s Exhibit, (ECF No. 38-15), is

Sustained

This objection pertains to Plaintiff’s exhibit, (ECF No. 38-15), which Defendants

challenge under Federal Rules of Evidence 901, 801, 602, and 403. (ECF No. 41 at 5.) The

challenged exhibit, (ECF No. 38-15), appears to be a letter from a law firm addressed to TPC

Utah regarding a “Demand for Action” from some members of TPC Utah’s limited liability

corporation in response to alleged embezzlement by a non-party, Glenn Thibault, the former

Financial Officer of TPC Utah. (ECF Nos. 38-15 at 2; 41 at 5.)

Defendants argue that this challenged exhibit, (ECF No. 38-15), should be stricken and

disregarded by this Court because it cannot be authenticated, is inadmissible hearsay, and could

confuse or mislead the factfinder. (ECF No. 41 at 5 (citing Fed. R. Evid. 403, 602, 801, 901).)

Plaintiff only addresses Defendants’ hearsay objection, arguing that Defendants “hearsay

argument . . . can be ignored” because the challenged exhibit falls under hearsay exceptions.

(ECF No. 43 at 6.) Plaintiff argues that “while the letter was written on behalf of a non-party

the Defendants ‘manifested’ a belief that the letter’s statements about [former TPC Utah CFO

Glenn Thibault] were ‘true’” making it admissible. (Id. (citing Fed. R. Evid. 801(d)(2)(b)11.)

11 The Court notes that Federal Rule of Evidence 801(d)(2)(b) outlines a statement that is not hearsay,

rather than being a hearsay exception. This exclusion covers statements by a party opponent that the

party “manifested that it adopted or believed to be true.” Fed. R. Evid. 801(d)(2)(b). To support this

argument, Plaintiff argues this letter prompted a lawsuit, but she provided no evidence of this lawsuit

that this letter prompted. (ECF No. 43 at 6.) Therefore, there is no indication in the record that any

Plaintiff further argues that the challenged exhibit is not hearsay because it has an

“independent legal significance” and goes to whether Defendants are an integrated employer

for Title VII purposes, therefore Plaintiff argues the “‘verbal acts’12 rule may also apply.” (Id.

(citations omitted).)

The Court finds the most serious of Defendants’ objections to the challenged exhibit

to be their hearsay objection. Cf. Maryland Highways Contractors, 933 F.2d at 1251. To that end,

the Court finds that the letter contained in the challenged exhibit, (ECF No. 38-15), is an out

of court statement, Fed. R. Evid. 801(c)(1), and the Court must therefore analyze whether the

challenged exhibit is otherwise admissible. Fed. R. Evid. 801(c)(1)–(2), 803(8)(A)(i)–(iii).

Under the Federal Rules of Evidence, verbal acts are declarations that are not hearsay because

“the statement itself affects the legal rights of the parties or is a circumstance bearing on

conduct affecting their rights.” Fed. R. Evid. 801 Advisory Committee’s Note to Subdivision

(c). Further, the rule is meant to exclude those statements whose “significance . . . lies solely

in the fact that it was made.” Id. (citation omitted).

Although the letter contains what could be considered “verbal acts,” namely statements

regarding the rights of some members of TPC Utah’s limited liability corporation against TPC

Utah, those statements alone do not make the letter admissible. However, the verbal acts in

the letter are evidence of neither Defendants operating as an integrated employer nor

Plaintiff’s retaliatory discharge claim. See First Data Merch. Servs. Corp. v. SecurityMetrics, Inc., No.

CIV.A. RDB-12-2568, 2014 WL 7409537, at *16 (D. Md. Dec. 30, 2014); see also First Data

12 The Court notes that Plaintiff is likely referring to the exclusion, not exception, of “verbal acts” and

“verbal parts of an act” from the hearsay rules. See Fed. R. Evid. 801(c)(1)–(2); Fed. R. Evid.

801 advisory committee’s note to subdivision (c); see also First Data Merch. Servs. Corp. v. SecurityMetrics,

Merch. Servs. Corp. v. SecurityMetrics, Inc., 672 F. App’x 229, 236–37 (4th Cir. 2016). Because the

verbal acts in the letter are irrelevant to Plaintiff’s burdens of proof, the Court must examine

whether the portions of the letter which are not verbal acts, but remain hearsay, are admissible

under any other relevant exception. First Data Merch., 672 F. App’x at 237. The Court does

not so find. See Fed. R. Evid. 803(8)(A)(i)–(iii). Therefore, the challenged exhibit, (ECF No.

38-15), cannot be considered in the resolution of Defendants’ Motion for Summary Judgment.

See Maryland Highways Contractors, 933 F.2d at 1251.

5. Defendants’ Objection to Plaintiff’s Exhibit, (ECF No. 38-18), is

Sustained

This objection pertains to Plaintiff’s exhibit, (ECF No. 38-18), which Defendants

challenge under Federal Rules of Evidence 901 and 106. (ECF No. 41 at 5–6.) The challenged

exhibit, (ECF No. 38-18), appears to be unofficial excerpts or copies of documents related to

Defendants’ property agreements in several states. (ECF No. 38-18 at 2, 3–4, 5–10.)

Defendants argue that this challenged exhibit, (ECF No. 38-15), should be stricken and

disregarded by this Court because it contains unofficial, incomplete, excerpts of several

documents. (ECF No. 41 at 5–6 (citing Fed. R. Evid. 106, 901).) Plaintiff admits that these

are excerpts of copies of documents she obtained from county recorder offices, and provides

some of the unincluded pages, but that because of the limited purpose of the documents any

missing pages “are likely immaterial.” (ECF No. 43 at 7.) Plaintiff provides no other

explanation for the purpose of these documents being provided. (See id.) Plaintiff further

admits the documents have unofficial copy watermarks and argue that “Defendants however

cannot genuinely contend that the pertinent language on the ‘unofficial copy’ [in the challenged

exhibit] is going to be any different than the language of a purchased version of the same

The Court finds that Plaintiff would be able to provide complete, official, versions of

the documents contained in the challenged exhibit at trial and has already provided some

missing pages from those documents. (Id.) Because Plaintiff has not identified the relevance

of this exhibit, it leaves the Court unable to assess Plaintiff’s purpose in offering this exhibit.

(See id.) The Court further finds that Plaintiff has made no showing about how she would

authenticate these documents, including who she would rely on to authenticate them; instead,

Plaintiff simply says that they can be authenticated. (See id.) Accordingly, this challenged

exhibit, (ECF No. 38-18), cannot be considered in the resolution of Defendants’ Motion for

Summary Judgment.

6. Defendants’ Objection to Plaintiff’s Exhibit, (ECF No. 38-19), is

Sustained

This objection pertains to Plaintiff’s exhibit, (ECF No. 38-19), which Defendants

challenge under Federal Rules of Evidence 403, 404, 405 and 802. (ECF No. 41 at 6.) The

challenged exhibit is an online article dated October 16, 2020, from the Jackson Progress-

Argus, the title of which is: “Three Points Center establishing residential treatment center for

adopted youth in Butts County.” (ECF No. 38-19 at 2.) The challenged exhibit discusses the

opening of TPC North Carolina, where the Facility is located, treatment services provided,

and aspects of the programming available to the students there, among other things. (Id. at

3–4.)

Defendants argue that this challenged exhibit, (ECF No. 38-19), should be stricken and

disregarded by this Court on the grounds of the rules of evidence listed above, but do not

explain further. (ECF No. 41 at 6.) Plaintiff does not explain why the challenged exhibit

should survive Defendants’ evidentiary objection but asks that it be considered by the Court.

The challenged exhibit, (ECF No. 38-19), is another newspaper article written by a

non-party; however, it contains statements made by one of Defendants’ employees. As stated

above, newspaper articles are hearsay when used to “prove the factual matters asserted

therein.” ReBrook, 58 F.3d at 967; see also Greene, 637 F. App’x at 751–52 (citing Nooner, 594

F.3d at 603). Plaintiff does not argue the article falls under a hearsay exception, such as the

party opponent exception; however, even if she did, because the party opponent statements

were conveyed in a newspaper article, the only applicable hearsay exception does not apply.

See Fed. R. Evid. 801(d)(2); see also Greene, 637 F. App’x at 751–52. Accordingly, because this

article is inadmissible hearsay, the challenged exhibit cannot be considered for Defendants’

Motion for Summary Judgment. Maryland Highways Contractors, 933 F.2d at 1251.

7. Defendants’ Objection to Plaintiff’s Exhibit, (ECF No. 38-25), is

Sustained

This objection pertains to Plaintiff’s exhibit, (ECF No. 38-25), which Defendants

challenge under Federal Rules of Evidence 901 and 403. (ECF No. 41 at 4–5.) The challenged

exhibit, (ECF No. 38-25), contains one table and two charts. (ECF No. 38-25 at 2, 3–4.) The

table in the challenged exhibit is titled “Corporate Timeline of Three Points Entity

Defendants,” and purports to catalog how the Defendant entities were created, dates of

agreements between the entities, and purchases of property, among other things. (Id. at 2.)

The two charts in the challenged exhibit are both titled “Information for Three Points Entity

Defendants” and purport to describe the corporate form and business relationships between

the Defendant entities. (Id. at 3–4.)

Defendants argue that this exhibit, (ECF No. 38-25), should be stricken and

disregarded by this Court because the table and charts it contains were created by Plaintiff’s

5 (citing Fed. R. Evid. 403, 901).) Defendants further argue that “Counsel purports to cite to

documents therein, but documents are not provided.” (Id. at 4.) To address authentication,

Plaintiff provided supplementary materials, citations and deposition excerpts, to support the

statements made in the challenged exhibit. (ECF No. 43 at 4–5 (citing ECF Nos. 43-1; 43-

2).) Plaintiff further argues that “nothing about [the table] is unfairly prejudicial or misleading”

because the commentary therein is based on statements from depositions. (See id.)

As with an earlier exhibit, the main concern with the challenged exhibit, (ECF No. 38-

25), is its ability to be authenticated in accordance with Rule 901 of the Federal Rules of

Evidence. Fed. R. Evid. 901(a). The table and charts contained in the challenged exhibit,

though reliant on discovery evidence, are Plaintiff’s counsel’s creations. Plaintiff’s counsel

would not be able to authenticate the challenged exhibit, and therefore, the challenged exhibit

could not be presented in a form that would be admissible at trial, as Rule 56 requires. Fed.

R. Civ. P. 56(c)(2). Therefore, the challenged exhibit, (ECF No. 38-25), cannot be considered

in the resolution of Defendants’ Motion for Summary Judgment and shall be stricken.

C. Defendants’ Objections to Conflicts Between Unsworn Witness

Declarations and Depositions are Sustained in Part

Defendants next argue that Plaintiff, to create a factual dispute, “relies on her

declaration [(ECF No. 36-1)], which contradicts her deposition testimony, [(ECF No. 41-1)].”

(ECF No. 41 at 2.) Further, Defendants argue that Plaintiff’s Declaration from Dr. Laurine

Leblanc-White, (ECF No. 38-26), who is a former employee of TPC North Carolina, also

contradicts her prior statements.13 (ECF Nos. 41 at 2; 38-26 ¶¶ 3–4.) Plaintiff does not directly

13 These initial statements, by Defendants’ former employee, Dr. Laurine LeBlanc, were made on a

respond to Defendants’ arguments about these witnesses’ declarations. (See generally ECF No.

43.) However, Plaintiff generally argues that Defendants’ objections are without merit. (Id. at

1, 2.)

Upon review of summary judgment motion, the district courts are not generally

empowered to make determinations of the credibility of evidence. See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249, 255 (1986). However, as noted above, the Court is empowered, upon

objection of a party, to review the suitability of evidence for the Court’s resolution of a

summary judgment motion. See Fed. R. Civ. P. 56(c)(2).

Here, Defendants’ arguments appear to this court to invoke the “sham affidavit”

doctrine. Zimmerman v. Novartis Pharms. Corp., 287 F.R.D. 357, 362 (D. Md. 2012) (citing

Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999)); see also In re Family Dollar FLSA

Litig., 637 F.3d 508, 512–13 (4th Cir. 2011). The “sham affidavit” doctrine forbids “a party

[from] create[ing] a genuine issue of fact sufficient to survive summary judgment simply by

contradicting [her] own previous sworn statement (by, say, filing a later affidavit that flatly

contradicts that party’s earlier sworn deposition) without explaining the contradiction or

attempting to resolve the disparity.” Cleveland, 526 U.S. at 806 (collecting cases). The purpose

of the “sham affidavit” doctrine is to protect “the utility of summary judgment as a procedure

for screening out sham issues of fact.” Hannah v. United Parcel Serv., Inc., 72 F.4th 630, 638 (4th

Cir. 2023) (quoting Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984) (additional

citations omitted). However, the doctrine applies only where there is “a bona fide

inconsistency” between a party’s sworn statements. Libertarian Party of Va. v. Judd, 718 F.3d

308, 314 n.6 (4th Cir. 2013) (quoting Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 n.7 (4th

Cir. 2001)). In the case of a “bona fide inconsistency,” the remedy is to strike the later-given

testimony. See In re Family Dollar, 637 F.3d at 513.

Defendants argue that Plaintiff contradicts her deposition testimony by submitting a

declaration that states Director Butcher was her supervisor, not Shift Supervisor Gschwind.

(ECF No. 41 at 10.) In her deposition on February 24, 2024, Plaintiff repeatedly states that

Shift Supervisor Gschwind was her supervisor. (See generally ECF No. 41-1.) In her July 22,

2024, declaration, Plaintiff portrays Director Butcher as her only supervisor and Shift

Supervisor Gschwind as “another Group Living staff member.” (ECF No. 38-28 ¶¶ 3, 4, 14.)

The Court finds this to be a material and “bona fide inconsistency” between Plaintiff’s two

sworn statements. Judd, 718 F.3d at 314 n.6 (citation omitted). Accordingly, the conflict

between Plaintiff’s unsworn declaration and deposition is resolved in favor of Plaintiff’s

deposition. In re Family Dollar, 637 F.3d at 513. This finding is also reflected above in the

Court’s factual background section.

III. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IS GRANTED

The Court will now consider the merits of the Defendants’ Motion for Summary

Judgement based on these rulings.

A. Standard of Review

Summary judgment is appropriate when “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). “A dispute is genuine if a reasonable jury could return a verdict for the

nonmoving party.” Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 568 (4th Cir. 2015)

(internal quotations omitted) (internal citations omitted). “[I]n deciding a motion for summary

nonmovant” and to “draw all reasonable inferences in his favor.” Harris v. Pittman, 927 F.3d

266, 272 (4th Cir. 2019) (citing Jacobs, 780 F.3d at 568). A court “cannot weigh the evidence

or make credibility determinations,” Jacobs, 780 F.3d at 569 (citations omitted), and thus must

“usually” adopt “the [nonmovant’s] version of the facts,” even if it seems unlikely that the

nonmoving party would prevail at trial. Witt v. W. Va. State Police, Troop 2, 633 F.3d 272, 276

(4th Cir. 2011) (internal quotation marks omitted) (quoting Scott v. Harris, 550 U.S. 372, 378

(2007)).

Where the nonmovant will bear the burden of proof at trial, the party seeking summary

judgment bears the initial burden of “pointing out to the district court . . . that there is an

absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S.

317, 325 (1986). If the moving party carries this burden, then the burden shifts to the

nonmoving party to point out “specific facts showing that there is a genuine issue for trial.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ.

P. 56(e)). In so doing, “the nonmoving party must rely on more than conclusory allegations,

mere speculation, the building of one inference upon another, or the mere existence of a

scintilla of evidence.” Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013) (citing Liberty

Lobby, 477 U.S. at 252 (additional citation omitted). Instead, the nonmoving party must

support its assertions by “citing to particular parts of . . . the record” or “showing that the

materials cited do not establish the absence . . . of a genuine dispute.” Fed. R. Civ. P.

56(c)(1)(A)–(B); see also Celotex, 477 U.S. at 324.

Defendants argue that Plaintiff cannot raise a genuine issue of fact to support her

claims of retaliatory discharge. (ECF No. 33 at 19.) Plaintiff argues that genuine issues of

material fact exist on both her retaliatory discharge claims and whether the entity Defendants

operated as Plaintiff’s integrated employer. (See ECF No. 36 at 10, 12, 13, 14, 17.) The Court

will address the parties’ arguments in turn.

B. No Genuine Dispute of Material Fact Exists as to Plaintiff’s Retaliation

Claims

“Title VII renders it ‘an unlawful employment practice for an employer . . . to

discriminate against any individual with respect to [her] compensation, terms, conditions, or

privileges of employment, because of such individual’s race, color, religion, sex, or national

origin.’” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 276–77 (4th Cir. 2015) (citing 42

U.S.C. § 2000e–2(a)(1)). A retaliatory discharge claim can be proven with direct evidence or

by circumstantial evidence through the McDonnell Douglas burden shifting framework. Foster v.

Univ. of Maryland-E. Shore, 787 F.3d 243, 249 (4th Cir. 2015) (citing McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973)). Plaintiff does not appear to offer direct evidence of retaliation

and instead relies on the application of the McDonnell Douglas framework to prove her claim.

(See ECF No. 36 at 7.)

“To prevail under the McDonnell Douglas framework, a Plaintiff must first establish a

prima facia case.” Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 122 (4th Cir. 2021) (citing

Foster, 787 F.3d at 250) (additional citation omitted). “To establish a prima facie case of

retaliation in contravention of Title VII, a plaintiff must prove ‘(1) that she engaged in a

protected activity,’ as well as ‘(2) that her employer took an adverse employment action against

her,’ and ‘(3) that there was a causal link between the two events.’” Boyer-Liberto, 786 F.3d at

281 (quoting EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405–06 (4th Cir. 2005)). “A prima

facie retaliation claim under 42 U.S.C. § 1981 has the same elements.” Boyer-Liberto, 786 F.3d

at 281 (citing CBOCS W., Inc. v. Humphries, 553 U.S. 442, 446 (2008)) (additional citation

If Plaintiff can establish a prima facie case, the burden then shifts to the employer to

show that it took its adverse action for a legitimate, nonretaliatory reason. Roberts, 998 F.3d at

122. If the employer makes that showing, the burden shifts back to Plaintiff to rebut the

employer’s evidence by demonstrating the employer’s purported nonretaliatory reason was

merely a pretext for discrimination. Id.

Title VII protects persons from retaliation for engaging in two kinds of activities:

opposition and participation. See Netter v. Barnes, 908 F.3d 932, 937 (4th Cir. 2018); see also

Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998) (citing 42 U.S.C.A. §

2000e–3(a)). Plaintiff argues that she engaged in oppositional protected activity. (See ECF

No. 36 at 11.) Employees engage in protected oppositional activity when, inter alia, they

“complain to their superiors about suspected violations of Title VII.” Boyer-Liberto, 786 F.3d

at 281 (internal quotation marks omitted) (quoting Bryant v. Aiken Reg’l Med. Ctrs. Inc., 333 F.3d

536, 543–44 (4th Cir.2003)). Accordingly, “Title VII proscribes discrimination against an

employee because, in relevant part, she ‘has opposed any practice made an unlawful

employment practice by this subchapter.’” Boyer-Liberto, 786 F.3d at 281 (quoting 42 U.S.C. §

2000e–3(a)). The Court first examines whether Plaintiff has established a prima facie case of

retaliation.

1. Plaintiff Has Failed to Show that She Engaged in Protected Activity

“Protected activity under Title VII includes complaints of discrimination based upon

‘race, color, religion, sex or national origin.’” Roberts, 998 F.3d at 122 (quoting Landino v. Sapp,

520 F. App’x. 195, 198 (4th Cir. 2013) (quoting Balazs v. Liebenthal, 32 F.3d 151, 159 (4th Cir.

1994)). Utilizing informal or formal company grievance procedures to make complaints may

constitute protected activity. See Laughlin, 149 F.3d at 259; Roberts, 998 F.3d at 122. However,

not every complaint that mentions discrimination in passing is protected activity under Title

VII. See Laughlin, 149 F.3d at 259–60.

Defendants argue that Plaintiff did not engage in protected activity during her April 6,

2022, conversation with Director Butcher because it was objectively unreasonable for Plaintiff

to believe that the Incident, wherein Defendant Palmer used the “N” word in the April 5,

meeting with students, was an unlawful employment practice. (ECF No. 33 at 20.) Plaintiff

contests that the Incident occurred during a group therapy session and that “a 19-year-old

[B]lack woman paid $14 per hour to take care of ‘troubled teens’ was aware of [Defendant

Palmer’s] stated therapeutic purpose [for saying the “N” word].” (ECF No. 36 at 11.) Plaintiff

further argues that even if the Incident occurred during a group therapy session, a trier of fact

could still find Plaintiff’s opposition to the Incident to be reasonable and that her recording

on April 5, 2022 “was also a good faith opposition [to] something she reasonably believed may

qualify as an unlawful employment practice.” (Id. at 11, 25 (citation and internal quotation

marks omitted).)

Contrary to Plaintiff’s assertion that the meeting between Defendant Palmer and

students was not a therapy session, this Court concludes that the record evidence supports

that the session in which the Incident occurred, was in fact a group therapy session. (ECF

No. 33-4 ¶ 6; see also ECF No. 33-13 at 137:1-5.) Further, record evidence supports that

Plaintiff was, made aware of why Defendant Palmer used the “N” word during the group

therapy session; and more specifically her own statements reflect she was aware that

Defendant Palmer did not say the “N” word with racial animus. (ECF No. 33-39 at 8:2–9:13.)

Therefore, the sole issue related to the first element of Plaintiff’s prima facie case is whether

Plaintiffs actions on April 5 and 6, 2022 amounted to “protected activity” as defined by case

law for Title VII claims.

Plaintiff identifies two specific actions that she took, one on April 5 and the other on

April 6, which she contends qualify as protected activity. The first occurred on April 5, 2022,

when Plaintiff returned to the Facility, and while the session between Defendant and the

students was still occurring, Plaintiff began to record the group therapy session. (ECF No.

33-10 at 242:20–243:5.) The second action Plaintiff contends constituted protected activity

was her statements to Director Butcher on April 6, 2022, about the Incident. (ECF No. 36 at

11–12, 25.)

This Court concludes that Plaintiff’s April 5, 2022, recording of the meeting in which

Dr. Palmer said the “N” word was not protected activity under Title VII because it did not

constitute, nor was it used to, make a complaint of any kind about discrimination or other

unlawful employment practices under Title VII. Roberts, 998 F.3d at 122. According to record

evidence, Plaintiff stated that she intended to get Defendant Palmer to say the “N” word again

during the session while she was recording, but it did not occur. (ECF No. 33:10 at 242:23–

243:5.)

Next, the Court will consider whether Plaintiff’s meeting with Director Butcher

constitutes protected activity. In her conversation with Director Butcher, Plaintiff made

several statements about her co-workers and workplace, however, she does not allege that they

all were protected activities. (See ECF No. 36 at 10–11.) It is not the role or responsibility of

this Court to scour each line of this conversation to see if any statement could be construed as

protected activity. Rather, the Court will address only what Plaintiff argues was protected

activity under Title VII. Immediately prior to the alleged protected activity, Plaintiff’s April 6,

2022, meeting with Director Butcher began with her remarking about how another Youth

Mentor, Charlie Brackett, only follows directions but does not raise his voice when he

perceives a wrong. (ECF No. 33:39 at 7:1–8:1.)

Plaintiff and Director Butcher’s conversation regarding the Incident that Plaintiff

identifies as protected activity, (ECF No. 36 at 11), with some additional dialogue for context,

is reproduced below:

“Plaintiff: I’m like, [Charlie Brackett] if you feel like something was done

unfairly, even to yourself - -

Director Butcher: Yeah.

Plaintiff: - - then say it. Like the whole [Defendant Palmer] saying the [“N”

word].

Director Butcher: Yeah.

Plaintiff: Like, you [sic] what I’m saying? It was like, I know that it wasn’t

[Defendant Palmer’s] intent to be like, oh - -

Director Butcher: Oh, he knows when he - - he knows when to - - he stays

put.

Plaintiff: Yeah.

Director Butcher: And that’s when he was like - - he said, oh, I shouldn’t say

that word. But then again, I always tell people, like, no, there’s no excuse to use

that word. At the same time, it’s like you have to - - you know why he did say

it; there was zero malicious, like, intent to hurt or upset anyone.

Plaintiff: Uh-huh.

Director Butcher: Like you were saying, let’s try and promote it, say - - but he

probably went about it the wrong way. He shouldn’t say the word, but there’s

no hate in his heart behind it. He wasn’t trying to be offensive to you or anyone

else. You know what I mean?

Plaintiff: Uh-huh.

Director Butcher: Oh, well - - oh, you’re right. Like you shouldn’t say that

Plaintiff: Yeah. But like that didn’t really bug me as bad as like the other

situation. And then like - - and then like, for example, me, [Shift Supervisor

Gschwind], [Charlie Brackett], [Youth Mentor Sharecka Brewer], [Youth

Mentor Avery McLaurin] all sitting there the day before and had this

conversation with Charlie. We was like [Charlie Brackett], we understand you

want to follow everything by the book. We get that. But this constantly, every

situation that happens - -

Director Butcher: Yeah.

Plaintiff: - - you call [Shift Supervisor Gschwind]. And we was like, that’s not

- - you know what I’m saying? Like, you can’t stand on your own two feet.”

(ECF No. 33-39 8:2–9:13.)

This Court must analyze (1) was Plaintiff opposing an unlawful employment practice

under Title VII; and if it was not an unlawful employment practice under Title VII, could

Plaintiff still reasonably believe she was opposing unlawful employment practices. Boyer-

Liberto, 786 F.3d at 282. The Court first finds that oppositional activity can take the form of

an employee’s use of informal grievance procedures, such as Plaintiff did by communicating

with Director Butcher. See Cosby v. S.C. Prob., Parole & Pardon Servs., 93 F.4th 707, 719 (4th

Cir. 2023) (citing DeMasters v. Carilion Clinic, 796 F.3d 409, 417 (4th Cir. 2015)). As to whether

Plaintiff is opposing an “unlawful employment practice,” the Fourth Circuit has said that “the

term ‘unlawful employment practice’ should be interpreted broadly.” Id. (citing DeMasters, 796

F.3d at 417). Yet, even when viewing the facts in the light most favorable to Plaintiff, the

Court concludes that what Plaintiff opposed was not an unlawful employment action under

Title VII. 42 U.S.C. § 2000e-3(a). Title VII does not prohibit employers from admonishing

others about their use of racial slurs. Id. Therefore, the plain language of the statute does not

suggest anything unlawful was done on this occasion. See id.

However, the Fourth Circuit has noted that its “broad interpretation” of the term

under Title VII but also employment actions [the employee] reasonably believes to be

unlawful.” Cosby, 93 F.4th at 719 (citing DeMasters, 796 F.3d at 417); see also Boyer-Liberto, 786

F.3d at 282 (quoting Navy Fed. Credit Union, 424 F.3d at 406). However, this “broad

interpretation is not without limits.” Cosby, 93 F.4th at 719. Plaintiff must have an “objectively

reasonable belief in light of all the circumstances that a Title VII violation has happened” for

their opposition activity to be protected. McIver v. Bridgestone Ams., Inc., 42 F.4th 398, 411 (4th

Cir. 2022) (quoting Boyer-Liberto, 786 F.3d at 282) (internal citations omitted). Plaintiff must

point to specific evidence in the record that would permit a jury to infer that Plaintiff’s

complaints were related to a Title VII violation. Cosby, 93 F.4th at 719 (citing id. at 412).

The Court acknowledges in no uncertain terms that the use of racial slurs, in any form,

are not permissible in the workplace. Boyer-Liberto, 786 F.3d at 280. However, the issue before

this Court is whether the Incident, its surrounding circumstances, and Plaintiff’s statement

about it to Director Butcher, constitute protected activity under Title VII. See McIver, 42 F.4th

at 411. To that end, there is language to suggest that both Plaintiff and Director Butcher

believed it was inappropriate for Defendant Palmer to say the “N” word when he was

prohibiting the students from using it and perhaps should have prohibited it without reference

to the slur itself. (ECF No. 33-39 at 8:2–9:13.)

“[I]n light of all the circumstances” the Court finds that it is not objectively reasonable

for Plaintiff to believe her opposition to this conduct was protected under Title VII. McIver,

42 F.4th at 411. Defendant Palmer was prohibiting students’ use of the word; and he only did

so after several incidents of students using the word, which was causing ongoing conflict

among the students in the Facility. (ECF Nos. 33-1 ¶ 4; 33-3 ¶ 9; 33-13 at 136:7–137:5.)

Further, none of the Facility employee declarations state that Defendant Palmer used the word

in a discriminatory way, or in any way other than to admonish students from using it. (ECF

Nos. 33-1 ¶ 6; 33-3 ¶ 11; 33-4 ¶ 8.) In light of these circumstances surrounding the Incident

and Plaintiff’s own description of the Incident, there is no basis for a jury to infer that Plaintiff

believed she was opposing unlawful employment practices. (ECF No. 33-39 at 8:2–9:13.)

Plaintiff repeatedly agreed that she did not believe Defendant Palmer wished to cause offense

and even stated that the Incident did not bother her as much as another Youth Mentor, Charlie

Brackett, reporting issues too often to Shift Supervisors. (Id.)

Accordingly, this Court concludes that Plaintiff has failed to show that she engaged in

oppositional protected activity and further has not shown there are genuine issues of material

fact from which a reasonable juror could find that Plaintiff engaged in oppositional protected

activity in response to an unlawful employment practice in violation of Title VII.

Even assuming that Plaintiff had established protected activity, her prima facie case

still fails. Defendants do not challenge that an adverse employment action was taken against

Plaintiff, that being her April 6, 2022, termination. (See generally ECF No. 33.) However,

Defendants do, in fact challenge the causal connection between Plaintiff’s alleged protected

activity and the adverse action taken against her. (ECF No. 33 at 20–21, 21–22.) Thus, the

Court next examines whether Plaintiff has established a causal relationship between her alleged

protected activity and her April 6, 2022, termination.

2. Plaintiff Has Failed to Show a Causal Relationship Between her

Protected Activity and Termination

To establish a causal relationship between a plaintiff’s protected activity and the adverse

employment activity, a plaintiff must show their employer “took the adverse action because of

the protected activity.” Roberts, 998 F.3d at 123 (quoting Bryant v. Aiken Reg’l Med. Ctrs., Inc.,

(additional citation omitted). “[A] plaintiff must show that the decision maker was aware of

the protected activity at the time the alleged retaliation occurred.” Id. at 124 (citations

omitted); see also Constantine v. Rectors and Visitors of George Mason Univ., 411 F.3d 474, 501 (4th

Cir. 2005) (citing Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th

Cir. 1998)). Thereafter, a causal link can be established by establishing either or both of the

following: (1) the existence of facts that suggest the adverse action occurred because of the

protected activity or (2) a showing that the adverse employment action is sufficiently close in

time to the protected activity. Roberts, 998 F.3d at 123 (internal citations omitted). The

standard for establishing causation at the prima facie stage is less onerous than but-for

causation. See Foster, 787 F.3d at 251 (citation omitted). Often when an adverse action is taken

shortly after protected activity reasonable inference of causation is permissible. Dowe, 145

F.3d at 657 (4th Cir. 1998).

“Since, by definition, an employer cannot take action because of a factor of which it is

unaware, the employer’s knowledge that the plaintiff engaged in a protected activity is

absolutely necessary to establish the third element of the prima facie case.” Dowe, 145 F.3d at

657 (citation omitted); see also Roberts, 998 F.3d at 124. The Fourth Circuit has “consistently

required proof of a decisionmaker’s knowledge of protected activity to support a Title VII

retaliation claim.” Roberts, 998 F.3d at 124. To determine there was a causal relationship

between protected activity and Plaintiff’s termination, “a plaintiff must show that the

decisionmaker was aware of the protected activity at the time the alleged retaliation occurred.”

Id. (citations omitted).

Defendants first argue that Plaintiff’s § 1981 claim against Defendant Palmer fails

because Plaintiff cannot establish that he was involved in Plaintiff’s termination at all. (ECF

No. 33 at 19–20.) Plaintiff argues that because Defendant Palmer was a director at the Facility

and Director Butcher’s father-in-law, the Court can infer that he was involved in Plaintiff’s

termination. (ECF No. 36 at 11, 21.) Plaintiff has provided no record evidence to support its

claim that Defendant Palmer directed Director Butcher to fire Plaintiff. Nor, upon the Court’s

own review, is there any evidence in the record that suggest Defendant Palmer was aware of

either Plaintiff’s protected activity—her surreptitious recording of the April 5, 2022, group

therapy session and her April 6, 2022, conversation with Director Butcher—or that Defendant

Palmer had any role in Plaintiff’s termination.

Defendants also argue that Plaintiff cannot demonstrate that the employee who

recommended her termination, Shift Supervisor Gschwind, had actual knowledge of her

alleged protected activity. (ECF No. 33 at 21.) In response, Plaintiff disputes that her

termination was initiated by Shift Supervisor Gschwind and that it was done in accordance

with Defendants’ attendance discipline policy. (ECF No. 36 at 13, 14–15.) Plaintiff also argues

that the close temporal proximity between Plaintiff’s termination and her alleged protected

activity allows for an inference of causation. (Id. at 12.)

The Court concludes that the record does not support that anyone other than Shift

Supervisor Gschwind initiated Plaintiff’s termination procedure. (ECF Nos. 33-2 ¶¶ 14–15;

33-6 ¶ 16.) Plaintiff also provided no record evidence that Director Butcher initiated Plaintiff’s

termination procedure. The record instead reflects that Shift Supervisor Gschwind,

recommended Plaintiff’s termination to Director Butcher on April 6, 2022, before Plaintiff’s

conversation with Director Butcher and before anyone was made aware of her secret recording

on April 5, 2022. (ECF Nos. 33-2 ¶¶ 14–15; 33-6 ¶ 16.) Plaintiff also provided, and the Court

cannot find, record evidence to support that Shift Supervisor Gschwind was aware of

Plaintiff’s alleged protected activity before recommending Plaintiff’s termination. Further,

there is no indication in the record that when his termination notice was approved by Director

Butcher, that Shift Supervisor Gschwind was made aware of Plaintiff’s alleged protected

activity. Regardless, the Fourth Circuit has held that the causation analysis centers on “what

the relevant decisionmaker knew at the time of the adverse employment action, not on any

knowledge other employees may have had that could be imputed to the employer.” Roberts,

998 F.3d at 124 (citing Dowe, 145 F.3d at 657) (additional citations omitted in original).

Further, the record also does not support that Plaintiff’s termination violated

Defendants’ attendance discipline policy. According to the Employee Manual, an employee’s

termination based on attendance violations did not require two written warnings as Plaintiff

claims. (ECF Nos. 33-18 at 6; 33-19 at 4.) Rather, an employee could be terminated following

two written warnings, but that these were guidelines not requirements; further, the Employee

Manual specifically disclaims that employees may be fired for termination violations that are

otherwise severe. (ECF No. 33-19 at 4.) In addition, the record reflects the severity of

Plaintiff’s attendance violations, the lack of attendance violations of those similarly situated to

her, and the termination and suspension of Youth Mentors on the basis of attendance

violations. (Compare ECF No. 33-22 at 2–4, 5 with ECF Nos. 33-24 at 2; 33-25 at 2–3; 38-16

at 10–11, 12; see also ECF No. 38-9 at 3–5.)

Therefore, even though the time between Plaintiff’s alleged oppositional activity and

her termination is a matter of hours, the evidence in the record that establishes the person

who initiated her termination did so before Plaintiff’s alleged protected activity occurred and

accordingly was done without knowledge of her protected activity. See Roberts, 998 F.3d at 124

(citing Dowe, 145 F.3d at 657) (additional citations omitted in original).

Finally, even if Plaintiff could establish a prima facie case of retaliation, her retaliation

claim would nonetheless flounder on the remaining steps of the McDonnell Douglas test, which

the Court considers below.

3. Defendants Have Established Legitimate and Non-Discriminatory

Reasons for Terminating Plaintiff

Defendants argue that the “but-for” cause of Plaintiff’s termination was “excessive

tardiness” and “no-shows” at work. (ECF No. 33 at 15–16, 21.) Defendants provide evidence

that Plaintiff’s direct supervisor, Shift Supervisor Gschwind, wished to recommend the

termination of Plaintiff in both March of 2022 and on April 6, 2022, based on her attendance.

(ECF No. 33 at 9, 21.) Defendant further supports those reasons with evidence of Plaintiff’s

documented attendance violations. Plaintiff argues that Defendants cannot provide legitimate,

non-discriminatory reasons for her termination, and to the extent that they do, those reasons

are pretext for retaliatory animus. (See ECF No. 36 at 10, 13–15.)

Only where a prima facie case of retaliation is established, the burden then shifts to the

employer to produce a legitimate, non-discriminatory reason for the adverse action. Laber v.

Harvey, 438 F.3d 404, 430 (4th Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 142 (2000); McDonnell Douglas, 411 U.S. at 802–03). In evaluating Defendants’ proffered

reasons, this Court cannot “sit as a kind of super-personnel department weighing the prudence

of employment decisions made by firms charged with employment discrimination.” DeJarnette

v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998) (citations omitted). It is not the province of

this Court to “decide whether the reason was wise, fair, or even correct, ultimately, so long as

it truly was the reason for the plaintiff's termination.” Hawkins v. PepsiCo, Inc., 203 F.3d 274,

279 (4th Cir. 2000) (citing DeJarnette, 133 F.3d at 299) (internal quotation marks omitted).

The Fourth Circuit has repeatedly recognized that a plaintiff’s inability to meet job

performance expectations are legitimate, non-discriminatory reasons for an employer to take

an adverse employment action against a plaintiff. Defendant has made an offer of proof that

reflects that Youth Mentors, such as Plaintiff, were required to be on time or early to begin

their hourly positions. (ECF Nos. 33 at 3; 33-18 at 6; 33-19 at 4.) In addition, Defendants

have shown that Youth Mentors were not permitted to leave their shift early without

permission from their Shift Supervisor and were not permitted to be absent from work

without coverage or adequate notice (a “no show”). (ECF Nos. 33-18 at 6; 33-19 at 4.)

Defendants have also shown that employees were formally and informally reprimanded for

attendance violations. (ECF Nos. 38-9 at 3–5.)

As applied to Plaintiff, Defendants have shown that Plaintiff violated that policy when

Plaintiff: (1) was late to work sixteen times from January 1, 2022, to her termination of April

6, 2022; (2) left work early twice without permission during the same period; and (3) was a

“no-show” at work three times during the same period. (ECF No. 33 at 16; see also ECF No.

33-22 at 2–4.) Defendants have shown that Plaintiff was formally reprimanded, in a write-up

that she had repeatedly violated the attendance policy. (ECF No. 33-21 at 2.) In addition,

Defendants have shown that Plaintiff’s attendance issues were reflected in her 90-day

performance evaluation. (ECF No. 33-20 at 3.) Finally, Defendants have shown that six of

her late arrivals, both of her early departures, and one of her no-shows occurred after her

formal reprimand from her performance evaluation and attendance violation write-up on

February 22, 2022. (See ECF No. 33-22 at 2–4)

Given the foregoing, this Court concludes that Defendant has met its burden of proof

to establish legitimate and non-discriminatory reasons for terminating Plaintiff.

4. Plaintiff Has Not Established that Defendants’ Established Reasons

for Firing her Were Pretext for Discrimination

Plaintiff argues that “Defendants’ proffered reasons” for Plaintiff’s termination,

namely that “she was chronically late, should be rejected.” (ECF No. 36 at 10) (internal

quotation marks omitted). Plaintiff argues that in firing her Defendants deviated from their

attendance discipline policy, and further, other attendance write-ups in the record show that

Plaintiff’s infractions were not what the Facility considered to be serious. (Id. at 12–13, 15.)

Further, Plaintiff argues that her supervisors valued “reliability” instead of “punctuality.” (Id.

at 14.) Finally, Plaintiff argues that text messages in the record reflect that Shift Supervisor

Gschwind wished to give Plaintiff a write-up based on an incident with Shift Supervisor Locke,

not her attendance. (Id.)

To carry the burden of proving pretext, a plaintiff must establish “both that the

[employer’s] reason was false, and that [retaliation] was the real reason for the challenged

conduct.” Foster, 787 F.3d at 252 (quoting Jiminez v. Mary Washington Coll., 57 F.3d 369, 378

(4th Cir. 1995) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)) (alterations in

original). The showing must reflect that plaintiff’s protected activity was the but-for, direct

cause of the adverse employment action. Id. However, evidence may include that which calls

into question the honesty of the plaintiff’s supervisor’s belief that plaintiff was not meeting

their employer’s expectations, the expectations can be discredited as inconsistent and

contradictory, or that the expectations were designed to hide retaliatory animus. DeJarnette,

133 F.3d at 299; see also Jacobs, 780 F.3d at 575.

First, the Plaintiff cannot prove that Defendants deviated from their attendance policy

in firing her. To support this argument Plaintiff primarily claims that after her first written

warning about her attendance policy, that a second written warning was supposed to be given

before firing her. (ECF No. 36 at 13.) However, as Plaintiff conceded in her argument, the

Employee Manual and Handbook, “contemplates” a second warning, but a second warning is

not required. (Id.) Moreover, this Court’s own review of the evidence reflects that Plaintiff’s

poor attendance could have justified her immediate firing, including any one of her three “no-

shows.” (ECF Nos. 33-18 at 6; 33-19 at 4.) Further, the record reflects that Shift Supervisor

Gschwind sought to terminate Plaintiff for her attendance violations in March 2022, before

her alleged protected activity. (See ECF No. 33-2 ¶ 6.) Therefore, even if a second warning

were required to terminate Plaintiff for her attendance issues, which is not true, this alone is

not evidence of pretext because it does not show that Defendants were dishonest in firing her

on attendance grounds or otherwise used her attendance violations to hide retaliatory animus.

See Hawkins, 203 F.3d at 280 (citing DeJarnette, 133 F.3d at 299).

Plaintiff also does not meet her burden by simply gesturing at others’ attendance

violations which did not result in termination. Plaintiff must provide sufficient evidence that

would allow a reasonable factfinder to conclude that, from the perspective of the

decisionmaker, Plaintiff was fired for unlawful reasons. See Adkins v. CSX Transp., Inc., 70

F.4th 785, 793, 794 (4th Cir. 2023) (quoting Holland v. Wash. Homes, Inc., 487 F.3d 208, 217

(4th Cir. 2007)) (internal citation omitted). Thus, when Plaintiff points out the flaws in her

coworkers, she does not rebut Defendants’ arguments that she severely violated the attendance

policy, received previous feedback about her attendance violations, or otherwise disprove that

attendance was the but for cause of her termination. Instead, she is questioning the merits of

Defendants’ evaluation of her work, which this Court is not in a position to evaluate. Hawkins,

203 F.3d at 280 (citing DeJarnette, 133 F.3d at 299) (additional citation omitted).

Plaintiff’s additional argument that Shift Supervisor Gschwind also wished to write-up

Plaintiff for her involvement in a verbal altercation April 5, 2022, with Shift Supervisor Locke

rather than attendance is also unavailing. It is true that the Fourth Circuit has found that when

an employer’s explanations can be discredited as inconsistent and contradictory, this may allow

for an inference of pretext. Jacobs, 780 F.3d at 576. However, the inconsistencies this Court

must look for are in the explanations given to Plaintiff for her termination or inconsistencies

between the reason offered to Plaintiff and those provided to this Court in litigation. Id.

Defendants have never represented to Plaintiff that she was fired as a result of her altercation

with Shift Supervisor Locke only that it was a result of her attendance violations. (ECF No.

33 at 15–16.) Nor have Defendants represented to this Court that Plaintiff was fired for

anything other than her attendance violations. (Id.)

Further, Plaintiff has not provided any evidence that her job performance was other

than what the Defendants have established in their showing. A plaintiff may fail to prove

pretext when they fail “to supply evidence that [their employer] actually believed [their]

performance was good,” which can include poor performance on work evaluations and

informal indicia of an employer’s dissatisfaction with the plaintiff’s performance. Hawkins,

203 F.3d at 279, 280 (citing DeJarnette, 133 F.3d at 299). Plaintiff cannot make this showing

simply by making a conclusory statement that her, and others’ reliability, was what her

employers cared about, not their lateness. Hawkins, 203 F.3d at 280 (4th Cir. 2000) (finding

the decisionmaker’s perspective of Plaintiff’s work, not her “self-assessment” that is relevant)

(quoting DeJarnette, 133 F.3d at 299 (4th Cir. 1998) (quoting Evans v. Tech. Applications & Serv.

Co., 80 F.3d 954, 960–61 (4th Cir. 1996)) (additional citation omitted). The record evidence

of Plaintiff’s evaluations and write ups, contradict her argument. Instead, the record reflects

that Plaintiff’s supervisors and coworkers alike agreed that Plaintiff was frequently late to

work, her attendance violations were documented and penalized, and though Plaintiff had

great relationships with her students, her workplace conduct did not meet the Facility’s job

performance standards for Youth Mentor timeliness.

Therefore, this Court finds that there is no evidence to support Plaintiff’s assertion that

Defendants’ proffered legitimate nondiscriminatory reasons are dishonest or are motivated by

retaliatory animus.” See Foster, 787 F.3d at 252.

IV. CONCLUSION

Summary judgment “is mandated where the facts and the law will reasonably support

only one conclusion,” which is that there are no genuine issues of material fact that would allow

a reasonable jury to find in favor of Plaintiff on her claim of retaliatory discharge. Hawkins, 203

F.3d at 279 (quoting McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 356 (1991)) (internal

quotation marks omitted). The Court so finds here. The record before this Court shows that

Plaintiff cannot meet her ultimate burden of proving to a reasonable jury that she has been a victim

of intentional retaliation. See Foster, 787 F.3d at 252. Accordingly, Defendants are entitled to

judgment as a matter of law on Plaintiff’s claims of retaliation under Title VII and 42 U.S.C. §

1981. See Fed. R. Civ. P. 56(c).

Defendants’ Motion for Summary Judgment on all claims will be granted.

For the reasons stated herein, the Court enters the following:

ORDER

IT IS THEREFORE ORDERED that Defendants’ Motion for Summary Judgment,

(ECF No. 32), is GRANTED and Plaintiff’s claims are Dismissed.

IT IS FURTHER ORDERED that for the reasons outlined in the attached

memorandum this Court did not consider the following exhibits, ECF Nos. 38-6, 38-11, 38-

12, 38-15, 38-18, 38-19, 38-25, 39-1, 39-2, 39-3, and 39-4, for the resolution of Defendants’

Motion for Summary Judgment, (ECF No. 32).

This, the 7th day of April 2025.

/s/ Loretta C. Biggs

United States District Judge