Donald v. Novant Health, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. 5:22-CV-363-D

THRESEA DONALD, )

)

Plaintiff, )

)

v. ) ORDER

)

NOVANT HEALTH, INC., )

THE PRESBYTERIAN HOSPITAL, )

d/b/a NOVANT HEALTH PRESBYTERIAN )

MEDICAL CENTER, and )

NOVANT HEALTH ROWAN )

MEDICAL CENTER, LLC )

)

Defendants. )

On December 20, 2023, Thresea Donald (“Donald” or “plaintiff’) filed an amended

complaint against Novant Health, Inc. (“Novant”), The Presbyterian Hospital, d/b/a Novant Health

Presbyterian Medical Center (“Presbyterian”), and Novant Health Rowan Medical Center, LLC

(“Rowan”) (collectively, “defendants”) [D.E. 40, 46]. Donald alleges (1) retaliation in violation

of 42 U.S.C. § 1981 (count one); (2) race discrimination in violation of 42 U.S.C. § 1981 (count

two); and (3) age discrimination in violation of the Age Discrimination in Employment Act of

1967 (“ADEA”), as amended, 29 U.S.C. §§ 621 et seq. (count three) [D.E. 40] f] 57-96.

On January 31, 2025, defendants moved for summary judgment [D.E. 87] and filed a

memorandum in support [D.E. 90], a statement of material facts [D.E. 88] and an appendix [D.E.

89]. On February 20, 2025, Donald responded to defendants’ motion for summary judgment [D.E.

92], and filed a response to defendants’ statement of material facts [D.E. 93]' and an appendix

[D.E. 94].

On March 5, 2025, defendants replied to Donald’s statement of material facts [D.E. 95]

and Donald’s response in opposition to defendants’ motion for summary judgment [D.E. 97]. On

March 10, 2025, Donald filed a surreply [D.E. 98]. On March 18, 2025, defendants moved to

strike Donald’s surreply [D.E. 99].

On March 31, 2025, defendants moved for extension of time to take Donald’s damages

expert’s deposition [D.E. 102]. On that day, Donald filed objections to Magistrate Judge Kimberly

A. Swank’s recommendations about various discovery orders [D.E. 104] and filed a response in

opposition to defendants’ motion to strike Donald’s surreply [D.E. 105].

On April 28, 2025, Donald filed a motion to withdraw Donald’s reply to defendants’

opposition to Donald’s objections to the magistrate’s order and moved for leave to file a reply

[D.E. 111]. As explained below, the court grants defendants’ motion for summary judgment and

denies as moot the parties’ other motions.

Donald is an African-American woman over age 40. P1.’s Statement of Additional Facts

[D.E. 93] J 1. Donald worked as the anatomic pathology supervisor (“AP Supervisor”) at Novant’s

1 Docket entry 93 consists of Donald’s response to defendants’ statement of material facts,

and a statement of additional facts. A party’s statement of material facts is “deemed admitted for

the purposes of the motion [for summary judgment] unless it is specifically controverted by a

correspondingly numbered paragraph in the opposing statement” that is “followed by a citation to

[admissible] evidence.” Local Civ. R. 56.1(a)(2), (a)(4); see Williamson v. Bridgestone Ams., Inc.,

625 F. Supp. 3d 466, 470—71 (E.D.N.C. 2022); Felton v. Moneysworth Linen Serv., Inc., 295 F.

Supp. 3d 595, 597 n.1 (E.D.N.C. 2018); Howard v. Coll. of the Albemarle, 262 F. Supp. 3d 322,

329 n.1 (E.D.N.C. 2017). Donald’s response provides citations only in some paragraphs. Thus,

Donald has admitted the facts contained in the remaining paragraphs of Novant’s statement.

Anatomic Pathology Laboratory (“AP Lab”) at Rowan Medical Center (“RMC”) in Salisbury,

North Carolina. See Defs.’ Statement of Material Facts (“DSMF”) [D.E. 88] 2. Donald began

work in the AP Lab on June 5, 2017. See id. Novant employed Donald as an at-will employee.

See id. at 10.

When Novant hired Donald, the AP Lab had five members: an administrative employee,

Donald, and three histology technologists. See id. at | 24. Histology technologists “have a two-

year degree or are job-trained and they cut tissue and embed tissue,” while cytology technologists

“read slides and review slides for cancer and normally are four-year degreed employees.” See id.

at 25-28. The cytology technologists and the histology technologists in the AP Lab were not

cross trained. See id. at | 30. Donald’s expertise is in cytology. See id. at § 29. Donald received

a certificate in cytotechnology from Johns Hopkins University and has never worked as a histology

technologist. See id. at f¥ 5, 29.

As the AP Lab Supervisor, Donald “perform[ed] all laboratory procedures, including

quality control, specimen collection, processing, testing, and reporting of lab results,” and oversaw

laboratory personnel and daily workload. See id. at f] 6-7. Donald, as the AP Lab’s only cytology

technologist, oversaw cytology screening. See id. at {| 7-8. Cytology screening consisted of

“writing and revising policies and procedures for the department, and accession processing and

microscopic evaluation of non-GYN cytology specimens.” See id.

When Donald began at RMC, Novant contracted to receive managerial support from other

entities, including Labcorp. See id. at { 18. Christine Stiller (“Stiller”), a white Labcorp employee,

served as Novant’s Clinical Laboratory Manager. See id. at § 19. Donald reported to Stiller from

Donald’s hire in June 2017 until October 2019. See id. at | 23. Stiller reported to Stefanie Schray

(“Schray”), a white Labcorp employee, who served as the Laboratory Director for the geographic

region which encompassed RMC until 2019. See id. at] 20. Schray reported to Tara Williams

(“Williams”), an African-American Labcorp employee, who was employed as the “System

Director/General Manager” for Novant’s clinical laboratories systemwide until August 2019.” Id.

at 21. Novant also contracted with Dr. Rachel Ross (“Ross”), a white pathologist from nearby

Rowan Pathology Associates, to serve as the Medical Director of Novant’s clinical laboratories.

See id. at 22. Ross worked at RMC. See id.

In February 2018, Donald requested a transfer to Novant’s Mint Hill Medical Center. See

id. at ¢ 32. Although Donald told Novant that the purpose of her transfer request was to move

closer to her family, Donald asserts she requested the transfer to “remove herself from a hostile

work environment, but did not want her future employer to know.” Compare id. at 7 31, with □□□□□

Response to Defs.’ Statement of Material Facts [D.E. 93] { 31.

In April 2018, Ross “yelled” at Donald, but Donald did not believe there was anything

racial about the incident. See DSMF ff 40-42; Donald Dep. [D.E. 89-1] 49. Donald orally

reported the incident to Stiller and Schray, and her reports did not concern race. See DSMF {J

43-44. On July 3, 2018, Donald filed a formal complaint about the incident with Ross. See id. at

4147. Donald’s formal complaint included Stiller’s response to her oral complaint. See id,

Donald’s formal complaint did not mention race. See DSMF f 48; [D.E. 89-1] 155-57.

Kim Hailey (“Hailey”), an African-American employee relations consultant at Novant, reviewed

Donald’s formal complaint. See DSMF 4 50. As part of the investigation, Hailey spoke with

Donald, and Donald completed an investigation form. See id. at 57. Novant did not find any

evidence of retaliation and determined that Donald struggled “with team and peer

communication.” Id. at {J 58-59.

On June 18, 2018, Novant gave Donald a “[p]Jerformance [a]ction [p]lan” for “deficiencies

in her leadership and communication skills.” See id. at { 33 (quotation omitted). The plan noted

that Donald “falls short with people to people engagement and motivation” but praised Donald’s

competency in her other responsibilities. See id. Also in June 2018, Stiller gave Donald an annual

evaluation for her first year at Novant, which reiterated Donald’s communication issues. See id.

at 37-38.

On September 7, 2018, Williams placed Donald on a 30-day performance improvement

plan. Id. at | 60. The plan sought to correct Donald’s communication issues and required Donald

to take a course entitled “Leading with Emotional Intelligence.” Id. at f] 62-63. On October 25,

2018, Donald completed the performance improvement plan. See id. at ¢ 64. In October 2018,

Donald told Stiller that someone slashed Donald’s tires at Donald’s apartment complex and Donald

speculated to Hailey that someone from Novant may have been involved. See id. at f] 66-67. On

June 28, 2019, Donald received an Annual Manager Evaluation from Stiller which noted Donald’s

continuing communication issues. See id. at J 68.

Beginning in March 2019, Donald began applying for positions at other healthcare

employers because of a lack of work at the AP Lab. See id. at f] 76-80, 87-93. In August 2019,

Donald wrote to a friend that “[RMC] is one of the smallest [hospitals] and has very little

specimens .... I may have to retire early.” Id. at | 80.

In 2019, Novant changed RMC’s management structure. Before 2019, RMC’s geographic

market was Charlotte, and Schray, the region’s Laboratory Director, managed it. See id. at | 94.

In October 2019, Angella Callwood (“Callwood”), an African-American Labcorp employee, began

as the Laboratory Director for the Winston-Salem region and RMC became a part of that market.

See id. at 97-98. When Novant interviewed Donald in 2017, Callwood recommended Donald

be hired for the AP Lab Supervisor position. See id. at 94. Ashley Faust (“Faust”), a white

Novant employee, replaced Stiller as the AP Lab’s Manager, and Donald reported to Faust. See

id, at TJ 99-100. Faust reported to Callwood. See id, at 99.

When Callwood became the Laboratory Director responsible for RMC, she noticed

declining cytotechnology case volumes at RMC. See id. at | 147. As 2020 began, cytotechnology

case volumes continued to decline. See id. at [J] 151-53. In March 2020, Ross passed away and

the three remaining pathologists at Rowan Pathology Associates eventually left the practice,

leading to its dissolution. See id. at 154-56, 201. The AP Lab lacked a pathologist to read the

pathology specimens without a local pathology practice, which contributed to decreased volumes.

See id. at | 158.

Beginning in March 2020 and continuing into the summer, the COVID pandemic caused a

decrease in hospital operations at RMC and an ensuing decrease in case volumes at the AP Lab.

See id. at {J 158-60. When Novant hired Donald in 2017, Donald reviewed between five to ten

slides per day. See id. at ¢ 185. By 2020, Donald reviewed only two to four slides per day. See

id. Between March 18, 2020, and March 27, 2020, cytotechnology case volumes decreased by 40

percent. See id. at ¢ 102; [D.E. 89-1] 31. By April and May 2020, Donald’s case load had fallen

from 2-3 “fine needle aspirations” per week in December 2019 to “one, if any, per week.” See

DSMF { 104.

Donald and Faust worked together to plan cuts in AP Lab members’ hours, which led to a

10-hour per week reduction for each AP Lab team member. See id. at 105-08. The workload

and productivity levels at RMC and the AP Lab continued to decrease after the initial reduction in

work hours. See id, at FJ] 109-11. On April 30, 2020, Faust informed Donald that Novant required

that Faust and Donald each take one paid-time-off day per week for the months of May and June.

See id. at J 112.

On April 1, 2020, Stiller sent an email to update various other teams at RMC which

included a cartoon “Joke of the day.” Id. at ff 112, 117. Stiller did not send the email to Donald

or the AP Lab team. See id. at J 118-19. The cartoon depicts three men standing on a gallows

platform in a western setting. See id. at J 121; [D.E. 89-11] 3. One white man is wearing a cowboy

hat and cowboy boots. See DSMF § 121; [D.E. 89-11] 3. Another white man is wearing jeans and

cowboy boots. See DSMF { 121; [D.E. 89-11] 3. A third white man is dressed as an executioner.

See DSMF 121; [D.E. 89-11] 3. A fourth white man has a noose around his neck and is in the

air. See DSMF ¥ 121; [D.E. 89-11] 3. Below the man in the air is an open trap door with a

trampoline. See DSMF § 121; [D.E. 89-11] 3. The shading of the cartoon suggests that the man

in the air had dropped through the trap door and sprung off the trampoline. See DSMF § 121;

[D.E. 89-11] 3. The three men on the gallows platform are depicted laughing at the man in the air.

See DSMF f 121; [D.E. 89-11] 3. None of the men in the cartoon are African-American. See

DSMF 121; [D.E. 89-11] 3. “April Fools!” is written underneath the cartoon. See [D.E. 89-11]

3.

Donald saw the cartoon when an African-American subordinate in the AP Lab brought it

to her attention and told Donald “people were upset.” See DSMF ff 122-24. A white

histotechnologist told Donald that he did not consider the email racist because “the guy with the

noose around his neck is not black.” Id. at § 124.

On April 2, 2020, Donald sent an email to Sheena Boyd, a supervisor in Novant’s employee

relations department. See id. at fj 53, 127; Pl.’s Reply Statement of Additional Facts [D.E.

6. In the email Donald wrote “[i]s this racist or do I just not have a sense of humor??? One of my

white team members who thought it was extremely funny said ‘Oh no, it’s not racism because the

person with the noose around their neck is not black.”” See id. at {J 53, 127 (emphasis omitted).

Donald also wrote in the email to Boyd:

I am guessing that some may say this Novant Health Manger is just ignorant, or she

lacks good judgment, or that she just has no regard for professionalism in the

workplace —but I refuse to believe that she knows absolutely nothing about the

history of lynching in the south; that it was part of the white supremacist uprising

after the Civil War; that it took so many black lives; that it is a symbol of HATE

.... Can someone please explain to this woman that lynching is NOT a joke!!!!

Id, at J 127. At her deposition, Donald testified that she felt the cartoon was racist and

inappropriate because of the noose’s symbolism. See Donald Dep. 34-35.

When Boyd received Donald’s email, she sent the email to Hailey for investigation. See

DSMF at J 139. Hailey forwarded the email to Callwood. See id. at J] 140-41. Hailey also emailed

Donald to thank her for bringing the cartoon to her attention and “informed [Donald] that she had

forwarded the complaint to Callwood to investigate and resolve the issue.” Id. at] 141. Callwood

spoke with Stiller about the cartoon and gave her a “verbal coaching.” See id. at J 144. On April

9, 2020, Callwood prepared a “Leader/Department Investigation of Employee Complaint Form”

in which Callwood summarized her conversation with Stiller. See id. at 145. Callwood wrote

that Stiller “underst[ands] how this [cartoon] could be considered offensive. . . . It was bad

judgment on her part. [Callwood] explained to [Stiller] this is where your [d]iversity training is

very valuable.” Id.

In May 2020, the workload at RMC continued to decline. See id. at J 113-14. On May

13, 2020, Callwood and Faust contacted Hailey to discuss the elimination of Donald’s position.

See id. at | 167. Specifically, Callwood noted that “volume at RMC really can’t support a full

time [c]ytotech.” Id.

Callwood and Faust wrote a written summary of their decisionmaking. See id. at J 167-

69. In preparing the summary, Callwood and Faust reviewed productivity statistics for the AP Lab

supervisor position, including cytology volume for the end of 2019 and into 2020. See id. at J

170. Callwood and Faust drafted the written summary and sent it to Eric Henry (“Henry”), an

African-American senior vice president at Novant, who had final authority to approve the written

summary to eliminate Donald’s position. See id, at {J 171-72. Henry approved the written

summary. See id. at 171. The written summary was sent to the employee relations department

and verified. See id. at {J 172, 174. Because of Donald’s history of complaints to employee

relations, leadership within the employee relations and human resources departments reviewed the

written summary. See id. at 175. The written summary justified eliminating Donald’s position

because the declining cytology case volumes at RMC did not “warrant a full-time

cytotechnologist” and the slides that Donald reviewed could “be sent to [Forsyth Medical Center]

[C‘FMC”)] for screening and returned to FMC with minimal impact to workflow.” Id. at □ 179.

The report also incorporated other statistics showing the AP Lab’s lack of workload. See id. at ff

181-88. Novant leadership approved the written summary. See id. at | 189. In a letter dated June

18, 2020, Novant informed Donald that it had eliminated her position. See [D.E. 89-1] 314.

After Novant eliminated Donald’s position, Faust absorbed Donald’s supervisory

responsibilities. See id. at | 205. Eventually, Novant closed the AP Lab at RMC and transferred

its workload to the AP Lab at FMC. See id. at J 208.

On June 27, 2020, Donald applied for the AP Supervisor position at Presbyterian Medical

Center (“PMC”) in Charlotte, North Carolina. See DSMF § 212; [D.E. 89-1] 433. Jeanie Hollar

(“Hollar’”), the anatomic pathology manager at PMC, served as the hiring manager for the role.

See DSMF { 214. Novant promoted Hollar to serve as Novant’s Laboratory Regional Manager.

See id. at { 214. Because of Hollar’s promotion, Novant sought to fill the anatomic pathology

manager position first before hiring an anatomic pathology supervisor. See id. at J 215-16. In

August 2020, Novant hired Montello as the anatomic pathology manager at PMC. See id. at J

216. Montello’s background is in cytology. See id, at § 218. Hollar sought to hire an anatomic

supervisor a candidate with a histology background to complement Montello’s background. See

id.

Of 36 applicants for the AP Supervisor position, Novant selected Donald, Robert Pavelik

(“Pavelik”), and Jeff Moore (“Moore”) to interview. See id. at § 220. Donald, Pavelik, and Moore

each had experience at Novant. See id. In January 2021, Hollar and Montello hired Pavelik for

the position. See id. at ] 222. Pavelik “self-identifies as multi-racial, including Asian, Native

Hawaiian/Other Pacific Islander and White.” Id. at ] 223. At the time of his hire, Pavelik was 35

years old. See id. Pavelik possesses a histology background. See id. at § 225. Donald’s interview

feedback summary prepared by Novant stated “don’t hire . . . experience was in a low volume

setting. Skills relevant to histology are not strong.” Id. at ¢ 228. When Hollar and Montello

decided to hire Pavelik, neither Hollar nor Montello knew about Donald’s prior complaints. See

id. at □ 238. On April 28, 2021, Donald filed a charge of discrimination with the EEOC alleging

race, color, and age discrimination, and retaliation for Novant’s failure to hire her for the PMC AP

Supervisor position. See id. at J 240; [D.E. 89-1] 444-47.

IL.

Summary judgment is appropriate when, after reviewing the record as a whole, the court

determines that no genuine issue of material fact exists and the moving party is entitled to judgment

as a matter of law. See Fed. R. Civ. P. 56(a); Scott v. Harris, 550 U.S. 372, 378, 380 (2007);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The party seeking summary

10

judgment initially must demonstrate the absence of a genuine issue of material fact or the absence

of evidence to support the nonmoving party’s case. See Celotex Corp. v. Catrett, 477 U.S. 317,

325 (1986). Once the moving party has met its burden, the nonmoving party may not rest on the

allegations or denials in its pleading, see Anderson, 477 U.S. at 248-49, but “must come forward

with 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) (emphasis and quotation omitted). A trial court

reviewing a motion for summary judgment should determine whether a genuine issue of material

fact exists for trial. See Anderson, 477 U.S. at 249. In making this determination, the court must

view the evidence and the inferences drawn therefrom in the light most favorable to the nonmoving

party. See Harris, 550 U.S. at 378.

A genuine issue of material fact exists if there is sufficient evidence favoring the

nonmoving party for a jury to return a verdict for that party. See Anderson, 477 U.S. at 249. “The

mere existence of a scintilla of evidence in support of the [nonmoving party’s] position [is]

insufficient....” Id. at 252; see Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985) (“The

nonmoving party, however, cannot create a genuine issue of material fact through mere speculation

or the building of one inference upon another.”). Only factual disputes that affect the outcome

under substantive law properly preclude summary judgment. See Anderson, 477 U.S. at 248.

A.

Section 1981 prohibits race discrimination and retaliation in contracting. See 42 U.S.C. §

1981; CBOCS W., Inc. v. Humphries, 553 U.S. 442, 446-57 (2008) (holding that section 1981

encompasses retaliation claims). Section 1981 provides, in relevant part, that “[a]ll persons within

the jurisdiction of the United States shall have the same right . . . to make and enforce contracts . .

. as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). Section 1981 “protects all persons from

11

racial discrimination in making and enforcing coniracts.” Woods v. City of Greensboro, 855 F.3d

639, 645 (4th Cir. 2017).

A plaintiff may establish a race discrimination or retaliation claim in two ways. First, a

plaintiff can use direct evidence to show that race discrimination or retaliation motivated an

employer’s adverse employment action. See, e.g., Diamond v. Colonial Life & Accident Ins., 416

F.3d 310, 318 (4th Cir. 2005). “Direct evidence encompasses conduct or statements that both (1)

reflect directly the alleged discriminatory attitude, and (2) bear directly on the contested

employment decision.” Laing v. Fed. Express Corp., 703 F.3d 713, 717 (4th Cir. 2013) (cleaned

up); see Johnson v. United Parcel Serv., Inc., 839 F. App’x 781, 793 (4th Cir. 2021) (per curiam)

(unpublished); Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir. 2006), abrogated in part

on other grounds by Gross v. FBL Fin. Servs.. Inc., 557 U.S. 167 (2009). Alternatively, if a

plaintiff lacks direct evidence of race discrimination or retaliation (as in this case), a plaintiff can

proceed under the McDonnell Douglas burden-shifting framework. See Hill v. Lockheed Martin

Logistics Mgmt., Inc., 354 F.3d 277, 284-85 (4th Cir. 2004) (en banc), abrogated in part on other

grounds by Gross, 557 U.S. 167.2 The McDonnell Douglas framework consists of three steps: “(1)

the plaintiff must first establish a prima facie case of employment discrimination or retaliation; (2)

the burden of production then shifts to the employer to articulate a non-discriminatory or non-

retaliatory reason for the adverse action; (3) the burden then shifts back to the plaintiff to prove 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 or retaliatory.” Gisessous v. Fairview Prog. invs.,

2 Donald’s brief in opposition to summary judgment asserts that Donald possesses direct

evidence of race discrimination and retaliation. The cited materials, however, do not reflect

directly defendants’ alleged racial or retaliatory attitude. See [D.E. 92] 7-10. Accordingly,

Donald must proceed under the McDonnell Douglas framework.

12

LLC, 828 F.3d 208, 216 (4th Cir. 2016). The McDonnell Douglas framework applies to retaliation

and race discrimination claims under section 1981. See, e.g., Williams v. Giant Food Inc., 370

F.3d 423, 430 & n.3 (4th Cir. 2004); Beall v. Abbott Lab’ys, 130 F.3d 614, 619 (4th Cir. 1997),

abrogated in part on other grounds by Gilliam v. S.C. Dep’t of Juv. Just., 474 F.3d 134 (4th Cir.

2007).

If a plaintiff establishes a prima facie case, the burden shifts to “the employer to rebut the

presumption of retaliation by articulating a legitimate[,] nonretaliatory reason for its actions.”

Beall, 130 F.3d at 619; see Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 254 (1981); Carter

v. Ball, 33 F.3d 450, 460 (4th Cir. 1994). This burden is one of production, not persuasion. See

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509-11 (1993). “Once an employer articulates a

reason for discharging the plaintiff not forbidden by law, [the court does] not evaluate whether the

reason was wise, fair, or even correct.” Wannamaker-Amos v. Purem Novi, Inc., 126 F.4th 244,

257 (4th Cir. 2025) (quotation omitted); see Villa v. CavaMezze Grill, LLC, 858 F.3d 896, 901

(4th Cir. 2017); Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000). If the defendant

offers admissible evidence sufficient to meet its burden of production, “the burden shifts back to

the plaintiff to prove by a preponderance of the evidence that the employer's stated reasons were

not its true reasons, but were a pretext for discrimination.” Hill, 354 F.3d at 285 (quotation

omitted); see, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000); King

v. Rumsfeld, 328 F.3d 145, 150-54 (4th Cir. 2003). A plaintiff can do so by showing that the

employer’s “explanation is unworthy of credence or by offering other forms of circumstantial

evidence sufficiently probative of [illegal] discrimination.” Mereish v. Walker, 359 F.3d 330, 336

(4th Cir. 2004) (quotation omitted), abrogated in part on other grounds by Gross, 557 U.S. 167;

see Reeves, 530 U.S. at 147. The plaintiff, however, “cannot survive summary judgment by

13

focusing on minor discrepancies that do not cast doubt on the explanation’s validity or by raising

irrelevant points.” Fitzgerald v. Botetourt Cnty., No. 22-1081, 2024 WL 4579401, at *3 (4th Cir.

Oct. 25, 2024) (unpublished) (quotation omitted); see Hux v. City of Newport News, 451 F.3d 311,

315 (4th Cir. 2006).

1.

In count one, Donald alleges defendants retaliated against Donald for her April 2, 2020,

complaint about Stiller’s email when Novant eliminated the AP Lab Supervisor position at RMC

on June 18, 2020. Donald also alleges defendants retaliated against her in January 2021 when

Novant did not hire Donald for the AP Lab Supervisor position at PMC.

Section 1981 prohibits retaliation for complaints about race discrimination. See Comcast

Corp. v. Nat’1 Ass’n of Afr. Am.-Owned Media, 589 U.S. 327, 331-32 (2020); Univ. of Tex. Sw.

Med. Ctr, v. Nassar, 570 U.S. 338, 354-55 (2013); CBOCS W., Inc., 553 U.S. at 452-57. To state

a prima facie case of retaliation under section 1981, the plaintiff must show that (1) she engaged

in protected activity, (2) the employer took an action against her that a reasonable employee would

find materially adverse, and (3) a causal connection existed between the protected activity and the

adverse employment action.?> See DeCoster v. Becerra, 119 F.4th 332, 342 (4th Cir. 2024);

Laurent-Workman v. Wormuth, 54 F.4th 201, 218 (4th Cir. 2022); DeMasters v. Carilion Clinic,

796 F.3d 409, 416 (4th Cir. 2015); Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 250 (4th Cir.

2015); Boyer-Liberto, 786 F.3d at 281; Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 410

(4th Cir. 2013); Bryant v. Aiken Reg’| Med. Ctrs. Inc., 333 F.3d 536, 543 (4th Cir. 2003); Spriggs

3 The elements of a prima facie case of retaliation under section 1981 are the same as a

Title VII retaliation claim. See, e.g., Guessous, 828 F.3d at 218; Boyer-Liberto v. Fontainebleau

Corp., 786 F.3d 264, 281 & n.5 (4th Cir. 2015). Accordingly, the court cites cases applying both

statutes.

14

y. Diamond Auto Glass, 242 F.3d 179, 190 (4th Cir. 2001); Brown v. Goodwill Indus. of E. N.C.,

Inc., No. 4:17-CV-144, 2018 WL 2422315, at *2 (E.D.N.C. May 29, 2018) (unpublished); Johnson

v. Pitt Cnty. Bd. of Educ., No. 4:16-CV-214, 2017 WL 2304211, at *12 (E.D.N.C. May 25, 2017)

(unpublished); see also Nassar, 570 U.S. 338 at 362-63; Burlington N. & Santa Fe. Ry. v. White,

548 U.S. 53, 67-70 (2006).

“To establish a causal relationship between the protected activity and the [adverse action],

a plaintiff must show that the decision maker was aware of the protected activity at the time the

alleged retaliation occurred.” Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 124 (4th Cir.

2021). An employee cannot demonstrate a causal connection between protected activity and the

employer’s adverse action without alleging that the decisionmaker who took the adverse action

knew that the employee had engaged in protected activity. See Holland v. Washington Homes,

Inc., 487 F.3d 208, 218 (4th Cir. 2007); Hooven-Lewis v. Caldera, 249 F.3d 259, 278 (4th Cir.

2001); Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998),

abrogated on other grounds by White, 548 U.S. 53; see also Conrad v. CSX Transp., Inc., 824 F.3d

103, 108 (4th Cir. 2016); Gestamp S.C., L.L.C. v. NLRB, 769 F.3d 254, 261-62 (4th Cir. 2014).

Courts also consider the temporal proximity between an employer’s knowledge of

protected activity and an adverse action. See, e.g., Clark Cnty. Sch. Dist. v. Breeden, 532 U.S.

268, 273—74 (2001) (per curiam); Price v. Thompson, 380 F.3d 209, 213 (4th Cir. 2004), abrogated

on other grounds by Nassar, 570 U.S. 338. An adverse action taken shortly after an employer

learned of protected activity typically permits a reasonable inference of causation. See, e.g.,

Massaro v. Fairfax Cnty., 95 F.4th 895, 902-03 (4th Cir. 2024); Dowe, 145 F.3d at 657. “A lengthy

time lapse between the employer becoming aware of the protected activity and the alleged adverse

employment action, [however,] . . . negates any inference that a causal connection exists between

15

the two.” Dowe, 145 F.3d at 657 (finding three years too long to infer causation); see Breeden,

532 U.S. at 274 (same for 20 months); Barnhill v. Bondi, 138 F.4th 123, 132-35 (4th Cir. 2025)

(same for six months); Cosby v. S.C. Prob., Parole & Pardon Servs., 93 F.4th 707, 721-22 (4th

Cir. 2024) (same for six years); Massaro, 95 F.4th at 902 (same for 18 months); Roberts, 998 F.3d

at 126 (same for three months); Penley v. McDowell Cnty. Bd. of Ed., 876 F.3d 646, 656 (4th Cir.

2017) (same for eight and nine months); Causey v. Balog, 162 F.3d 795, 803 (4th Cir. 1998) (same

for 13 months); Colley v. ISS Facility Servs., Inc., No. 24-1320, 2025 WL 1743498, at *1-2 (4th

Cir. June 24, 2025) (per curiam) (unpublished) (same for four months). A plaintiff can rebut this

conclusion by plausibly alleging that her employer’s actions taken during the intervening period

demonstrate retaliatory animus. See Barbour v. Garland, 105 F.4th 579, 593-600 (4th Cir. 2024);

Massaro, 95 F.4th at 902-03; Alberti v. Rectors & Visitors of the Univ. of Va., 65 F.4th 151, 156

(4th Cir. 2023); Walton v. Harker, 33 F.4th 165, 177-78 (4th Cir. 2022); Lettieri v. Equant Inc.,

478 F.3d 640, 650 (4th Cir. 2007); King, 328 F.3d at 151 n.5.

As for Donald’s 2018 complaints, Donald cannot rely on those complaints because they

occurred before September 8, 2018. Section 1981 claims are subject to a four-year statute of

limitations. See Jones v. R.R. Donnelly & Sons Co., 541 U.S. 369, 379-85 (2004); Chambers v.

N.C. Dep’t of Just., 66 F.4th 139, 141-43 (4th Cir. 2023) (holding that four-year statute of

limitations applies to claims concerning post-contract formation conduct); 28 U.S.C. § 1658(a).

In April 2018, Donald alleges Ross yelled at her, but admits that Ross did not yell at her because

of her race. On July 3, 2018, Donald filed a formal complaint concerning Ross and Stiller. See

DSMF J 47-48. On September 8, 2022, Donald filed her first complaint in this court. See [D.E.

1]. Thus, Donald’s section 1981 claim is time-barred to the extent it relies on conduct that occurred

before September 8, 2018. See 28 U.S.C. § 1658(a).

16

Alternatively, even if the court were to consider Donald’s 2018 complaints, Donald fails

to demonstrate a genuine issue of material fact concerning her 2018 complaints. To show

causation, Donald’s retaliation claim “require[s] proof of a decisionmaker’s knowledge of

protected activity.” See Mclver v. Bridgestone Ams., Inc., 42 F.4th 398, 412 (4th Cir. 2022)

(quotation omitted); Roberts, 998 F.3d at 124. “[I]f [an employee] fails to tie complaints about

workplace conduct to her protected status, the employer could not have retaliated for engaging in

a protected activity.” Mclver, 42 F.4th at 412; see Roberts, 998 F.3d at 124; Landino v. Sapp, 520

F. App’x 195, 198-99 (4th Cir. 2013) (per curiam) (unpublished). Donald, however, did not

inform anyone at Novant that she considered Ross and Stiller’s 2018 conduct to be race related.

See DSMF J 40-42; Donald Dep. 49; [D.E. 89-1] 155-57. Thus, defendants are entitled to

summary judgment on count one to the extent Donald’s claims rely on Donald’s 2018 complaints.

As for Donald’s retaliation claim based on Stiller’s April 2020 email, the court assumes

without deciding that Donald engaged in protected activity when she reported Stiller’s email.

Moreover, eliminating Donald’s position and defendants’ failure to hire Donald for the PMC AP

Lab Supervisor position are adverse employment actions. See, e.g., Barbour, 105 F.4th at 590-91;

Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 577 (4th Cir. 2015); King, 328 F.3d at 151

n.5; Templeton v. First Tennessee Bank, N.A., 424 F. App’x 249, 251 (4th Cir. 2011) (per curiam)

(unpublished). Donald has not, however, produced sufficient evidence of causation. The nearly

three-month gap between Donald’s alleged protected activity and her position’s elimination, and

the approximately seven-month gap between the alleged protected activity and Pavelik’s hire, do

not create a genuine issue of material fact about causation. See Breeden, 532 U.S. at 274; Barnhill,

138 F.4th at 132-35; Cosby, 93 F.4th at 721-22; Massaro, 95 F.4th at 902; Roberts, 998 F.3d at

126; Penley, 876 F.3d at 656; Causey, 162 F.3d at 803; Dowe, 145 F.3d at 657; Perry v. Kappos,

17

489 F. App’x 637, 643 (4th Cir. 2012) (unpublished).

As for Donald’s failure to hire claim, Donald cannot demonstrate the relevant

decisionmakers who decided to hire Pavelik knew of her complaint about Stiller’s email. See

Mclver, 42 F.4th at 412; Roberts, 998 F.3d at 125. This fact dooms her claim. Furthermore,

Donald presents no evidence of intervening retaliatory animus in the period between her complaint

about Stiller’s email and the adverse employment actions. Thus, Donald fails to establish a prima

facie case of retaliation.

Alternatively, even if Donald established a prima facie case of retaliation, no genuine issue

of material fact exists about pretext. As for the elimination of Donald’s position, Novant had

legitimate, nonretaliatory reasons for eliminating the AP Lab Supervisor position: the AP Lab’s

decreased workload and the ease with which it could shift Donald’s responsibilities to other

employees. In opposition to this conclusion, Donald argues that Novant’s justifications are false

because (1) volumes were high from 2017 to 2019; (2) Donald’s applications for other positions

were motivated by a desire to escape a hostile work environment, not a decline in workload, and

(3) when Novant terminated Donald’s employment, Novant used overtime for other Novant

employees and the AP Lab’s overall productivity was 100.4 percent. See [D.E. 92] 14-16.

As for the alleged high volumes from 2017 to 2019, Novant terminated Donald in 2020

after the COVID pandemic and the closure of Ross’s pathology practice caused case volumes to

fall. High case volumes from 2017 to 2019 do not equal high case volumes in 2020.

As for Donald’s alleged desire to escape a hostile work environment, Donald’s only

evidence comes from her declaration, which contradicts her deposition testimony.. Compare [D.E.

92-1] Tf 26-27, with Donald Dep. 21-22, 27; [D.E. 89-1] 188. At her deposition, Donald admitted

that she was motivated to seek another job because of the declining workload at RMC. See Donald

18

Dep. 21-22, 27. The court disregards Donald’s declaration to the extent that it contradicts her

deposition testimony. See Cleveland v. Pol’y Mgmt. Sys. Corp., 526 U.S. 795, 806-07 (1999); In

te Family Dollar FLSA Litig., 637 F.3d 508, 512 (4th Cir. 2011); Rohrborough v. Wyeth Labs.,

Inc., 916 F.2d 970, 975 (4th Cir. 1990); Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir.

1984); Swindell v. CACTI NSS, Inc., No. 5:17-CV-617, 2020 WL 5824024, at *3 n.3 (E.D.N.C.

Sept. 30, 2020) (unpublished), aff’d, No. 20-2179, 2022 WL 3754531 (4th Cir. Aug. 30, 2022) (per

curiam) (unpublished).

As for Donald’s assertions about Novant paying overtime to some employees and the

productivity rate at the AP Lab, the court examines whether Novant’s reasons for terminating

Donald were a pretext (i.e., a lie). The court does not examine whether Novant exercised sound

business judgment in how it ran the AP Lab. See Wannamaker-Amos, 126 F.4th at 257; Villa, 858

F.3d at 901; Hawkins, 203 F.3d at 279; Williams v. Md. Dep’t of Health, No. 22-1074, 2024 WL

2746979, at *4—5 (4th Cir. May 29, 2024) (per curiam) (unpublished); Nzabandora v. Rectors &

Visitors of the Univ. of Va., 749 F. App’x 173, 177 (4th Cir. 2018) (per curiam) (unpublished).

Donald’s evidence fails to show that Novant’s business justifications for eliminating her job were

pretextual. Even viewing the record in the light most favorable to Donald, Donald fails to present

evidence sufficient to create a genuine issue of material fact as to pretext.

As for Novant’s decision to hire Pavelik, Novant had legitimate, nondiscriminatory reasons

for hiring Pavelik. Pavelik had experience in histology, which complimented Montello’s cytology

backround, andl Paveiik had experience working; a high-volume laboratory with Montello. See

DSMF ff 225, 228-32. Again, Donald contests the factual basis of Novant’s reasons. Even

viewing the evidence in the light most favorable to Donald, no rational jury could find Novant’s

reasons for hiring Pavelik pretextual. See Holland v. Washington Homes, Inc., 487 F.3d 208, 215

19

(4th Cir. 2007); Laber v. Harvey, 438 F.3d 404, 431-32 (4th Cir. 2006) (en banc); Anderson v.

Westinghouse Savannah River Co., 406 F.3d 248, 269-70 (4th Cir. 2005); Dugan v. Ablemarle

Cnty. Sch. Bd., 293 F.3d 716, 722-23 (4th Cir. 2002). Moreover, Donald’s own assessment that

she was more qualified for the position fails to create a genuine issue of material fact about pretext.

See, e.g., King, 328 F.3d at 149; Hawkins, 203 F.3d at 280; Evans v. Techs. Applications & Serv.

Co., 80 F.3d 954, 960 (4th Cir. 1996); Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980); Cole v.

Wake Cnty. Bd. of Educ., 494 F. Supp. 3d 338, 346 (E.D.N.C. 2020); Felton, 295 F. Supp. 3d at

604; Broadway v. United Parcel Serv., Inc., No. 5:16-CV-803, 2018 WL 542666, at *5 (E.D.N.C.

Jan. 24, 2018) (unpublished). Thus, the court grants defendants’ motion for summary judgment

on Donald’s section 1981 retaliation claim.

2.

In count two, Donald alleges race discrimination in violation of section 1981. See Am.

Compl. 9] 73-85. Donald lacks direct evidence of race discrimination and proceeds under the

McDonnell Douglas framework.

As for Donald’s race discrimination claim about Novant’s elimination of her position,

Donald must show that (1) she was a member of a protected class, (2) she suffered an adverse

employment action, (3) she was fulfilling her employer’s legitimate expectations at the time of the

adverse action, and (4) she was treated differently than a similarly situated employee outside the

protected class. See, e.g., Giles v. Nat’] R.R. Co., LLC, 59 F.4th 696, 703-04 (4th Cir. 2023);

Goode v, Cent. Va. Legal Aid Sac’y, Inc., 807 F.3d 619, 626 (4th Cir. 2015), abrogated in part ott

other grounds by Bing ¥. Brive Sys., LLC, 959 F.3d 605 (4th Cir. 2020); Coleman v. Md. Ct. of

Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S. 30 (2012); White v. BFI Waste Servs.,

LLC, 375 F.3d 288, 295 (4th Cir. 2004); Tahir v. Sessions, No. 5:16-CV-781, 2017 WL 1735158,

20

at *4 (E.D.N.C. May 2, 2017) (unpublished), aff’d, 703 F. App’x 211 (4th Cir. 2017) (per curiam)

(unpublished). As for Donald’s race discrimination claim based on Novant’s decision to hire

Pavelik, Donald must show: “(1) she is a member of a protected group, (2) there was a specific

position for which she applied, (3) she was qualified for that position, and (4) [the defendant]

rejected her application under circumstances that give rise to an inference of discrimination.”

Williams, 370 F.3d at 430; see McDonnell, 411 U.S. at 802; Anderson, 406 F.3d at 268; Henry v.

Vaughn Indus., LLC, 450 F. Supp. 3d 671, 679 (E.D.N.C. 2020).

Under section 1981, a plaintiff also must show that her race was the “but for” cause of the

interference with a contractual interest. Comcast Corp., 589 U.S. at 340-41; Lawrence v. DAP

Prods., Inc., No. 23-2268, 2025 WL 1098841, at *2 (4th Cir. Apr. 14, 2025) (per curiam)

(unpublished); Nadendla v. WakeMed, 24 F.4th 299, 303-05 (4th Cir. 2022); McK enzie-El v. Am.

Sugar Refining, Inc., No. 21-1089, 2021 WL5412341, at *2 (4th Cir. Nov. 19, 2021) (per curiam)

(unpublished). But-for causation requires the plaintiff to “ultimately prove that, but for race, [she]

would not have suffered the loss of a legally protected right.” Comcast Corp., 589 U.S. at 341;

see Lawrence, 2025 WL 1098841, at *2.

In support of her race discrimination claim about Novant’s elimination of her job, Donald

essentially argues that Stiller’s email created a hostile work environment. See [D.E. 92] 16-20.

The court, however, already denied Donald’s motion to amend her complaint to add a hostile work

environment claim under section 1981. See [D.E. 39] 6-9. Donald cannot use her opposition to

summary judgment to amendl her complaint. See, e.g, U.S. ex rei. Carter v. Haiiiburton Co., 866

F.3d 199, 210 n.6 (4th Cir. 2017); Murray Energy Corp. v. Adm’r of EPA, 861 F.3d 529, 537 n.5

(4th Cir. 2017); vonRosenberg v. Lawrence, 849 F.3d 163, 167 n.1 (4th Cir. 2017); S. Walk at

Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 184-85

21

(4th Cir. 2013); see also Wahi y. Charleston Area Med. Ctr. Inc., 562 F.3d 599, 617 (4th Cir. 2009);

Cloaninger ex rel. Est. of Cloaninger v. McDevitt, 555 F.3d 324, 336 (4th Cir. 2009); United States

ex rel, Graybar Elec. Co., Inc. v. TEAM Constr, LLC, 275 F. Supp. 3d 737, 748 n.3 (E.D.N.C.

2017); Shinaberry v. Town of Murfreesboro, No. 2:17-CV-7, 2019 WL 5446712, at *5 n4

(E.D.N.C. Oct. 23, 2019) (unpublished); Optima Tobacco Corp. v. U.S. Flue-Cured Tobacco

Growers, Inc., No. 5:16-CV-889, 2019 WL 4858848, at *7 (E.D.N.C. Sept. 30, 2019)

(unpublished). Thus, the court ignores Donald’s arguments to the extent they mimic her failed

hostile work environment claim. See [D.E. 39] 6-9.

Donald does not present any other evidence of race discrimination concerning Novant’s

decision to eliminate Donald’s position or its decision to hire Pavelik. Specifically, Donald does

not present any evidence that creates an inference of race discrimination in Novant’s decision to

eliminate her position or Novant’s later decision to hire Pavelik for a different position. See, e.g.,

Swaso v. Onslow Cnty. Bd. of Educ., 698 F. App’x 745, 748-49 (4th Cir. 2017) (unpublished).

Thus, the court grants defendants’ motion for summary judgment on Donald’s race discrimination

claim.

Alternatively, even if the court were to assume that Donald established a prima facie case

of race discrimination, no genuine issue of material fact exists about pretext. As discussed, Novant

has demonstrated legitimate, nondiscriminatory reasons for eliminating Donald’s position and

terminating her employment, and for its decision to hire Pavelik for a different position. Thus, the

burden shifts to Donald to demonstrate that there is a genuine issue of material fact about pretext.

As explained, no rational jury could find that Novant’s reasons for efiminating; Donald’s position

and terminating Donald or its decision to hire Pavelik were pretextual. Thus, even if Donald could

establish a prima facie case of race discrimination, defendants are entitled to summary judgment

22

on Donald’s race discrimination claim.

B.

In count three, Donald alleges that Novant discriminated against her because of her age

when it hired Pavelik. To establish a prima facie case of discriminatory failure to hire, Donald

must show: “(1) [she] was a member of a protected class, i.e., that [she] was at least 40 years old;

(2) [the] employer had an open position for which [she] applied and was qualified; (3) [she] was

rejected despite [her] qualifications; and (4) the position remained open or was filled by a similarly

qualified applicant who was substantially younger than the plaintiff, whether within or outside the

class protected by the ADEA.” Laber, 438 F.3d at 430; see, e.g., Westmoreland v. TWC Admin.,

LLC, 924 F.3d 718, 725-26 (4th Cir. 2019); Walsh v. Ciba-Geigy Corp., 121 F.3d 702, 1997 WL

538006, *1—2 (4th Cir. 1997) (per curiam) (unpublished table decision). The McDonnell Douglas

framework applies to ADEA age discrimination claims. See, e.g., Massaro, 95 F.4th at 901-02;

Bandy v. City of Salem, 59 F.4th 705, 712 & n.3 (4th Cir. 2023); Westmoreland, 924 F.3d at 725;

Smith, 618 F.2d at 1066 & n.3.

The court assumes without deciding that Donald has established a prima facie case of age

discrimination. As explained, Novant had legitimate, nondiscriminatory reasons for selecting

Pavelik, and no genuine issue of material fact exists about pretext. Thus, the court grants

defendants’ motion for summary judgment on Donald’s age discrimination claim.

Il.

In sum, the court GRANTS defendants’ motion for summary judgment [D.E 87] and

DENIES AS MOOT the parties’ remaining outstanding motions [D.E. 99, 102, 104, 111].

Defendants may file a motion for costs in accordance with the Federal Rules of Civil Procedure

and this court’s local rules. The clerk shall close the case.

23

SO ORDERED. This _!4 day of September, 2025.

A l Net”

J S C. DEVER III

United States District Judge

24