# Whigham

> District Court, E.D. North Carolina · April 8, 2026

URL: https://www.frixlaw.com/law-library/cases/11344191

## Case

- **Full name:** Christopher C. Whigham v. Tands, Inc.
- **Court:** District Court, E.D. North Carolina
- **Decided:** April 8, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11344191

## How later opinions describe it (automated extraction)

- finding three years too long to infer causation

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAKOLINA
WESTERN DIVISION
No. 5:25-CV-745-D

CHRISTOPHER C. WHIGHAM, )
Plaintiff,
V. ORDER
TANDS, INC.,
Defendant.

On October 24, 2025, Christopher C. Whigham (“Whigham” or “plaintiff’), proceeding
pro se, filed a complaint against Tands, Inc. (“Tands” or “defendant”) in Nash County Superior
Court [D.E. 1-3]. On November 19, 2025, Tands removed the action to this court [D.E. 1]. See
28 U.S.C. §§ 1331, 1441, 1446. On November 25, 2025, Tands moved to dismiss Whigham’s
complaint for failure to state a claim [D.E. 6] and filed a memorandum in support [D.E. 7]. See
Fed. R. Civ. P. 12(b)(6). On December 4, 2025, the court notified Whigham about the motion to
dismiss, the consequences of failing to respond, and the response deadline [D.E. 8]. See Roseboro
v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (per curiam).
On December 15, 2025, Whigham moved for leave to file an amended complaint [D.E. 11]
and attached an amended complaint as an exhibit to his motion [D.E. 11-1]. On January 2, 2025,
Tands responded in opposition to Whigham’s motion for leave to amend, and alternatively, asked
the court to construe the response in opposition as a motion to dismiss the amended complaint
[D.E. 12]. As explained below, the court construes Whigham’s motion for leave to amend the
complaint as the filing of the amended complaint, construes Tands’s response in opposition to
Whigham’s motion for leave to amend as a motion to dismiss the amended complaint, grants

Tands’s motion to dismiss Whigham’s federal claims, declines to exercise supplemental
jurisdiction over Whigham’s state-law claims, and remands the action to Nash County Superior
Court.
I.
Whigham is a 30-year-old African-American male who worked from June 6, 2024, to June
7, 2025, at a Bojangles restaurant in Rocky Mount, North Carolina. See [D.E. 1-9] 5; [D.E. 1-3]
2; [D.E. 11-1] 1-2. Tands is a North Carolina corporation with a principal place of business in
Kinston, North Carolina. See [D.E. 1]2. Tands operated the Bojangles where Whigham worked.
See [D.E. 1-3] 2. In February 2025, a co-worker, Laquan Bell (“Bell”), threatened Whigham with
knife. [D.E. 11-1] 1-2; [D.E. 1-3] 2. On another occasion, Bell threatened Whigham with a hot
pan. See [D.E. 11-1] 2; [D.E. 1-3] 2.
On June 6, 2025, Bell and another employee, Megan Morris (“Morris”), assaulted
Whigham. See [D.E. 11-1] 2; [D.E. 1-3] 2; see also [D.E. 11-3] 1. Bell threw a biscuit roller into
a sink near Whigham, causing water to splash on Whigham. See [D.E. 1-9] 5. Whigham told Bell
that he got splashed. See id. Bell “confronted” and “punched” Whigham. Id. Morris also punched
Whigham. See id. A manager intervened to stop the fight and called the police. See id. Morris
and Bell fled the scene. See id. Whigham “did not punch anyone” and only protected himself
from the “unprovoked assault.” Id. Whigham made a police report. See id.
Whigham complained about the incidents to management. See [D.E. 11-1] 2; [D.E. 1-3]
2-3. On June 7, 2025, Tands terminated Whigham’s employment. See [D.E. 1-9] 5; [D.E. 11-1]
2; [D.E. 1-3] 2.
On September 18, 2025, Whigham filed an amended EEOC charge of discrimination. See
[D.E. 1-9] 5—7. In the charge, Whigham described the June 6, 2025 incident with Bell and Morris

and the termination of his employment and stated “that [Tands] discriminated and retaliated
against” him. Id, at 5. On September 30, 2025, the EEOC issued a right to sue letter to Whigham.
See [D.E. 1-8] 2. On October 8, 2025, the North Carolina Department of Labor issued Whigham
a right to sue letter under the North Carolina Retaliatory Discrimination Act (“REDA”), N.C. Gen.
Stat. § 95-242(c). See [D.E. 1-7] 2.
On October 24, 2025, Whigham filed a complaint against Tands in Nash County Superior
Court. See [D.E. 1-3]. On November 19, 2025, Tands removed the action to this court. See [D.E.
1]. On November 25, 2025, Tands moved to dismiss Whigham’s complaint. See [D.E. 6]. On
December 15, 2025, Whigham moved for leave to amend the complaint, and filed a proposed
amended complaint and exhibits in support. See [D.E. 11]. On January 2, 2026, Tands responded
in opposition, and alternatively, asked the court to construe Tands’s response motion for leave to
amend as a motion to dismiss the amended complaint. See [D.E. 12] 1 n.1.
In his complaint, Whigham alleges claims for (1) hostile work environment and retaliation
under Title VII of the Civil Rights Act of 1964 (“Title VII”); (2) wrongful termination in violation
of North Carolina public policy; (3) failure to provide a safe work environment in violation of the
Occupational Safety and Health Act; and (4) negligent hiring, retention, and supervision. See
[D.E. 1-3] In the amended complaint, Whigham alleges three claims under Title VII:
discrimination (claim one); hostile work environment (claim two); and retaliation (claim three).
See [D.E. 11-1] 2. Whigham also alleges an “OSHA/REDA” retaliation claim (claim four). Id.
Under North Carolina law, Tands alleges a wrongful termination claim (claim five) and a negligent
retention and supervision claim (claim six). See id.

Il.
Federal Rule of Civil Procedure 15(a)(1) permits amendment to a pleading once “as a
matter of course no later than” 21 days after service of a motion under Rule 12(b). Fed. R. Civ. P.
15(a)(1)(B). “In all other cases, a party may amend its pleading only with the opposing party’s
written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). The court must “freely give leave
when justice so requires.” Id. When a plaintiff moves for leave to amend a complaint within the
time for amendment as of right under Rule 15(a)(1), courts generally treat the motion to amend as
the filing of the amended complaint. See St. John v. Moore, 135 F.3d 770, at *1 (4th Cir. 1998)
(per curiam) (unpublished table decision); Stewart v. RCA Corp., 790 F.2d 624, 631 (7th Cir.
1986); Zaidi v. Ehrlich, 732 F.2d 1218, 1220 (Sth Cir. 1984) (“When .. . a plaintiff who has a right
to amend nevertheless petitions the court for leave to amend, the court should grant the petition.”).
Whigham moved for leave to amend the complaint less than 21 days after service of Tands’s
motion to dismiss Whigham’s complaint. See [D.E. 11]. Whigham did not need to ask the court’s
permission to amend his complaint. See Fed. R. Civ. P. 15(a)(1); Moore, 135 F.3d, at *1; Stewart,
790 F.2d at 631; Zaidi, 732 F.2d at 1220. Thus, the court construes Whigham’s motion for leave
to amend as the filing of the amended complaint, and construes Tands’s response in opposition to
Whigham’s motion for leave to amend the complaint as a motion to dismiss the proposed amended
complaint. See [D.E. 12] 1 n.1.

' In any event, the futility analysis under Rule 15 is the same as the Rule 12(b)(6) analysis.
See Save Our Sound OBX, Inc. v. N.C. Dep’t of Transp., 914 F.3d 213, 228 (4th Cir. 2019); United
States ex rel. Ahumada v. NISH, 756 F.3d 268, 274 (4th Cir. 2014); Katyle v. Penn Nat’! Gaming,
Inc., 637 F.3d 462, 471 (4th Cir. 2011); United States ex rel. Wilson v. Kellogg Brown & Root,
Inc., 525 F.3d 370, 376 (4th Cir. 2008); Johnson v. Allen, 416 F. Supp. 3d 550, 562 (E.D.N.C.
2018), aff'd, 784 F. App’x 165 (4th Cir. 2019) (per curiam) (unpublished); Kariuki v. Dep’t of
Ins., No. 5:18-CV-341, 2019 WL 2559807, at *4 (E.D.N.C. June 20, 2019) (unpublished). Thus,
the court’s analysis would be the same whether the court considered the amended complaint for
futility under Rule 15 or for failure to state a claim under Rule 12(b)(6).

Il.
A motion to dismiss under Rule 12(b)(6) tests the complaint’s legal and factual sufficiency.
See Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544,
554-63 (2007); Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S.
30 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6)
motion, a pleading “must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (citation and quotation omitted); see
Twombly, 550 U.S. at 570; Giarratano, 521 F.3d at 302. In considering the motion, the court must
construe the facts and reasonable inferences “in the light most favorable to [the nonmoving party].”
Massey v. Ojaniit, 759 F.3d 343, 352 (4th Cir. 2014) (citation omitted); see Clatterbuck v. City of
Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013), abrogated on other grounds by Reed v. Town of
Gilbert, 576 U.S. 155 (2015). A pro se complaint, “however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (per curiam) (citation omitted). But Erickson does not undermine the “requirement
that a pleading contain more than labels and conclusions.” Giarratano, 521 F.3d at 304 n.5 (cleaned
up); see Seabrook v. Driscoll, 148 F.4th 264, 269 (4th Cir. 2025) (“[L]iberal construction does not
mean overlooking the pleading requirements under the Federal Rules of Civil Procedure.” (cleaned
up)). A court need not accept as true a complaint’s legal conclusions, “unwarranted inferences,
unreasonable conclusions, or arguments.” Giarratano, 521 F.3d at 302 (citation omitted); see Iqbal,
556 U.S. at 678-79. Rather, a plaintiff's factual allegations must “nudge[] [his] claims,” Twombly,
550 U.S. at 570, beyond the realm of “mere possibility” into “plausibility.” Iqbal, 556 U.S. at 678—
79.

‘Determining whether a complaint states a plausible claim for relief ... [is] a context-
specific task that requires the reviewing court to draw on its judicial experience and common
sense.” Id. at 679. “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct,” the complaint does not suffice. Id.
When evaluating a motion to dismiss, a court considers the pleadings and any materials
“attached or incorporated into the complaint.” E.I. du Pont de Nemours & Co. v. Kolon Indus.,
Inc., 637 F.3d 435, 448 (4th Cir. 2011); see Fed. R. Civ. P. 10(c); Goines v. Valley Cmty. Servs.
Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); Thompson v. Greene, 427 F.3d 263, 268 (4th Cir.
2005). A court also may consider a document submitted by a moving party if it is “integral to the
complaint and there is no dispute about the document’s authenticity” without converting the
motion into one for summary judgment. Goines, 822 F.3d at 166. “[I]n the event of conflict
between the bare allegations of the complaint and any exhibit attached . . . , the exhibit prevails.”
Id. (citation omitted); see Fayetteville Invs. v. Com. Builders, Inc., 936 F.2d 1462, 1465 (4th Cir.
1991). Additionally, a court may take judicial notice of public records. See, e.g., Fed. R. Evid.
201; Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007); Philips v. Pitt Cnty.
Mem’! Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
In an employment discrimination case, a plaintiff need not plead a prima facie case under
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), to survive a motion to dismiss.
See, e.g., Johnson v. Balt. City, 163 F.4th 808, 814 (4th Cir. 2026); Barnett v. Inova Health Care
Servs., 125 F.4th 465, 471 (4th Cir. 2025); Barbour v. Garland, 105 F.4th 579, 590 (4th Cir. 2024);
Holloway v. Maryland, 32 F.4th 293, 298 (4th Cir. 2022); Lemon v. Myers Bigel, P.A., 985 F.3d
392, 399 (4th Cir. 2021); Bing v. Bravo Sys., LLC, 959 F.3d 605, 616 & n.8 (4th Cir. 2020);
McCleary-Evans v. Md. Dep’t of Transp., 780 F.3d 582, 584-85 (4th Cir. 2015). Nonetheless, a

plaintiff must plausibly allege a claim for relief under governing law. See, e.g., Iqbal, 556 U.S. at
677-80; Twombly, 550 U.S. at 554-63; Johnson, 163 F.4th at 814; Barnhill v. Bondi, 138 F.4th
123, 132 (4th Cir. 2025); Barnett, 125 F.4th at 470; Barbour, 105 F.4th at 590; Laurent-Workman
y. Wormuth, 54 F.4th 201, 210 (4th Cir. 2022); Holloway, 32 F.4th at 298-301; Nadendla v.
WakeMed, 24 F.4th 299, 304-05 (4th Cir. 2022); Bing, 959 F.3d at 616-18; McCleary-Evans, 780
F.3d at 585-86, 588.
A.
In claim one, Whigham brings a Title VII discrimination claim. Title VII prohibits an
employer from taking adverse employment action against an employee “because of” an
individual’s “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Whigham
does not specifically allege the protected characteristic that forms the basis for the alleged
discrimination. See generally [D.E. 11-1]. The court construes Whigham’s amended complaint
as alleging a race discrimination claim. See id.
To state a race discrimination claim under Title VI, Whigham must plausibly allege that
Tands discriminated against him because of his race with respect to his compensation, terms,
conditions, or privileges of employment. See, e.g., Kelly v. Town of Abingdon, 90 F.4th 158, 169
& n.6 (4th Cir. 2024); Holloway, 32 F.4th at 299; Bing, 959 F.3d at 616-17; McCleary-Evans, 780
F.3d at 585-86.
A plaintiff may establish a race discrimination claim in two ways. First, a plaintiff can use
direct evidence to show that race discrimination motivated interference with a contractual interest,
including an adverse employment action. See, e.g., Diamond v. Colonial Life & Accident Ins.,
416 F.3d 310, 318 (4th Cir. 2005). Direct evidence in this context means “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, 784 (4th Cir. 2021) (per
curiam) (unpublished). Alternatively, if a plaintiff lacks direct evidence of race discrimination, 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), overruled
on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009). 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.” Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016).
To establish a prima facie case of race discrimination, Whigham must show that (1) he was
a member of a protected class, (2) he suffered an adverse employment action, (3) he was fulfilling
his employer’s legitimate expectations at the time of the adverse action, and (4) he was treated
differently than a similarly situated employee outside the protected class. See, ¢.g., Joliison, 163
F.4th at 814-15; Goode v. Cent. Va_ Legal Aid Soc’y, Inc., 807 F.3d 619, 626 (4th Cir. 2015),
abrogated in part on other grounds by Bing, 959 F.3d 605; White v. BF waste Servs., LLC, 375
F.3d 288, 295 (4th Cir. 2004); Tahir v. Sessions, No. 5:16-CV-781, 2017 WL 1735158, at *4
(E.D.N.C. May 2, 2017) (unpublished), aff'd, 703 F. App’x 211 (4th Cir. 2017) (per curiam)
(unpublished).
An adverse employment action under Title VII does not require a “significant .. . [o]r
serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee

must exceed a heightened bar” change in working conditions. Muldrow v. City of St. Louis, 601
U.S. 346, 355 (2024) (cleaned up). Instead, it requires “some harm respecting an identifiable term
or condition of employment.” Id. Moreover, to “[d]iscriminate against means [to] treat worse.”
Id. (cleaned up). Thus, an adverse employment action includes a “disadvantageous change to the
compensation, terms, conditions, or privileges of employment” because of a protected status. Cole
v. Grp. Health Plan, Inc., 105 F.4th 1110, 1114 (8th Cir. 2024).
Whigham does not plausibly allege a race discrimination claim. Specifically, the amended
complaint alleges workplace incidents between Bell, Morris, and Whigham that have nothing to
do with race or any other protected status. See, ¢.g., Bing, 959 F.3d at 617-19; McCleary-Evans,
780 F.3d at 585-86. Moreover, the amended complaint does not plausibly allege that Tands
terminated Whigham’s employment because of his race or any other protected status. See Bing,
959 F.3d at 617-19; McCleary-Evans, 780 F.3d at 585-86. Thus, the court dismisses claim one.
In claim two, Whigham brings a Title VII hostile work environment claim. To state a
hostile work environment claim under Title VII, an employee must plausibly allege that (1) he
experienced unwelcome conduct, (2) the conduct was based on race, (3) the conduct was
sufficiently severe or pervasive to alter the conditions of employment and create an abusive
atmosphere, and (4) the conduct is imputable to the employer. See, e.g., Seabrook, 148 F.4th at
271; Cosby v. S.C. Probation, Parole & Pardon Servs., 93 F.4th 707, 716 (4th Cir 2024);
Laurent-Workman, 54 F.4th at 210-12; Chapman v. Oakland Living Ctr., 48 F.4th 222, 229 (4th
Cir. 2022); Perkins v. Int’l Paper Co., 936 F.3d 196, 207-08 (4th Cir. 2019); Parker v. Reema
Consulting Servs., Inc., 915 F.3d 297, 302 (4th Cir. 2019); Boyer-Liberto v. Fontainebleau Corp.,
786 F.3d 264, 277 (4th Cir. 2015) (en banc); Okoli v. City of Balt., 648 F.3d 216, 220-21 (4th Cir.
2011); EEOC v. Fairbrook Med. Clinic, P.A., 609 F.3d 320, 327 (4th Cir. 2010); Ziskie v. Mineta,

547 F.3d 220, 224 (4th Cir. 2008); Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 331 (4th Cir.
2003) (en banc); Evans v. Capitol Broad. Co., 716 F. Supp. 3d 387, 402-04 (E.D.N.C. 2024). An
employee also must plausibly allege that his protected characteristic was the “but for” cause of the
alleged harassment. See, e.g., Seabrook, 148 F.4th at 271; Gilliam v. S.C. Dep’t of Juv. Just., 474
F.3d 134, 142 (4th Cir. 2007).
To determine whether conduct was sufficiently severe or pervasive to alter the employee’s
terms and conditions of employment and create an abusive working environment based on a
protected characteristic, the court examines the allegations both subjectively and objectively. See,
e.g., Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993); Evans, 936 F.3d at 192. First, the
employee must subjectively consider the conduct to be sufficiently severe or pervasive to alter his
conditions of employment. See, e.g., Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-71
(2001) (per curiam); Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998); Boyer-Liberto,
786 F.3d at 277. Second, a court views the conduct from the perspective of a reasonable person in
the employee’s position to determine whether it is objectively severe or pervasive. See, e.g.,
Breeden, 532 U.S. at 271; Faragher, 524 U.S. at 787-88; Oncale, 523 U.S. at 81-82; Boyer-
Liberto, 786 F.3d at 277.
The objective component helps courts “to police the baseline for hostile environment
claims.” Mendoza v. Borden, Inc., 195 F.3d 1238, 1244 (11th Cir. 1999) (en banc) (citation and
quotation omitted). The court considers all the circumstances, including the “frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.” Harris, 510 U.S. at 23; see Seabrook, 148 F.4th at 272; Parker, 915 F.3d at 304.
The conduct must be severe or pervasive to be actionable. See Harris, 510 U.S. at 23; Faragher,

10

524 U.S. at 787-88; Boyer-Liberto, 786 F.3d at 277-78. Title VII does not create a “general civility
code for the American workplace.” Oncale, 523 U.S. at 80; see Faragher, 524 U.S. at 787-88;
Boyer-Liberto, 786 F.3d at 277-81; Irani v. Palmetto Health, 767 F. App’x 399, 416 (4th Cir. 2019)
(per curiam) (unpublished). Rather, the “conduct must ... amount to a change in the terms and
conditions of employment.” Faragher, 524 U.S. at 788; see Boyer-Liberto, 786 F.3d at 277-81.
Simple teasing, sporadic rude language, offhand comments, jokes related to a protected status, and
isolated incidents (unless extremely serious) will not amount to discriminatory changes in the
terms and conditions of employment. See White, 548 U.S. at 68-69; Breeden, 532 U.S. at 270—
71; Faragher, 524 U.S. at 788; cf. Chapman, 48 F.4th at 228-34; Boyer-Liberto, 786 F.3d at 277—
81. Likewise, mere rude or insensitive treatment cannot sustain a hostile work environment claim.
See, e.g., Bonds, 629 F.3d at 385-86; Bagir v. Principi, 434 F.3d 733, 746-47 (4th Cir. 2006); see
also Breeden, 532 U.S. at 270-71; Faragher, 524 U.S. at 787-88; Oncale, 523 U.S. at 81-82; cf.
Chapman, 48 F.4th at 228-34; Boyer-Liberto, 786 F.3d at 277-81; Walker, 775 F.3d at 207-10;
Freeman v. Dal-Tile Corp., 750 F.3d 413, 420-24 (4th Cir. 2014); Okoli, 648 F.3d at 220-22.
“The real social impact of workplace behavior often depends on a constellation of
surrounding circumstances, expectations, and relationships which are not fully captured by a
simple recitation of the words used or the physical acts performed.” Oncale, 523 U.S. at 81-82.
“Common sense, and an appropriate sensitivity to social context,” will enable courts to distinguish
between teasing, distasteful jokes, sporadic rude language, vulgarity, stupidity, offhand comments,
and insensitive treatment and “conduct which a reasonable person in the plaintiff’s position would
find severely hostile or abusive” based on a protected characteristic. Id. at 82; Hartsell v. Duplex
Prods., Inc., 123 F.3d 766, 772-73 (4th Cir. 1997).
Although hostile work environment claims often involve repeated conduct, an “isolated

11

incident of harassment can amount to discriminatory changes in the terms and conditions of
employment, if that incident is extremely serious.” Boyer-Liberto, 786 F.3d at 277 (cleaned up);
see Pryor v. United Air Lines, Inc., 791 F.3d 488, 496 (4th Cir. 2015); Okoli, 648 F.3d at 220 &
n.5. In assessing the severity of the harassing conduct, harasser’s status is an important factor. See
Boyer-Liberto, 786 F.3d at 278; Sonnier v. Diaiiiond Healthcare Corp., 114 F. Supp. 3d 349, 356
(E.D. Va. 2015). A “supervisor’s power and authority invests his or her harassing conduct with a
particular threatening character.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 763 (1998); see
Boyer-Liberto, 786 F.3d at 278.
To impute liability to an employer for an employee’s harassment, a plaintiff must
demonstrate that “after having acquired actual or constructive knowledge of the allegedly
harassing conduct,” the employer did not take “prompt and adequate remedial action to correct it.”
Mikels v. City of Durham, 183 F.3d 323, 329 (4th Cir. 1999) (cleaned up) (collecting cases); see
Pryor, 791 F.3d at 498; Freeman, 750 F.3d at 423; EEOC v. Xerxes Corp., 639 F.3d 658, 669 (4th
Cir. 2011); EEOC v. Sunbelt Rentals, fitc., 521 F.3d 306, 319 (4th Cir. 2008). As for an employer’s
remedial actions, employers are required to “take steps reasonably likely to stop the harassment.”
Bazemiore v. Best Buy, 957 F.3d 195, 202 (4th Cir. 2020) (citation omitted); see Xerxes Corp., 639
F.3d at 669. In assessing remedial actions, the court must consider, titer alia, “the promptness of
the employer’s investigation when complaints are made, whether offending employees were
counseled or disciplined for their actions, and whether the employer’s response was actually
effective” in stopping the conduct of which plaintiff complains. Xerxes Corp., 639 F.3d at 669;
see Bazemore, 957 F.3d at 202; Pryor, 791 F.3d at 498. “[S]o long as discipline is reasonably
calculated to end the [offensive] behavior, the exact disciplinary actions lie within [the employer’s]
discretion.” Bazemore, 957 F.3d at 202. “A remedial action that effectively stops the harassment

12

will be deemed adequate as a matter of law.” Xerxes Corp., 639 F.3d at 670 (citation omitted);
Bazemore, 957 F.3d at 201-02.
Whigham’s hostile work environment claim fails because he does not plausibly allege that
Bell and Morris engaged in the conduct constituting the hostile work environment because of
Whigham’s protected characteristic (i.e., his race). See, e.g., Seabrook, 148 F.4th at 271; Gilliam,
474 F.3d at 142. Alternatively, Whigham did not allege a hostile work environment claim in his
amended EEOC charge. See [D.E. 1-9] 5. Whigham cannot bring this claim in federal court
without raising it first in an EEOC charge. See, e.g., Hoffman v. Inova Health Care Servs., 169
F.4th 207, 218-20 (4th Cir. 2026); Walton v. Harker, 33 F.4th 165, 172 (4th Cir. 2022); Sydnor v.
Fairfax Cnty., 681 F.3d 591, 593 (4th Cir. 2012). Thus, the court dismisses claim two.
In claim three, Whigham brings a Title VII retaliation claim. To state a claim, Whigham
must plausibly allege that (1) he engaged in protected activity, (2) his employer took some action
against him that a reasonable employee would find materially adverse, and (3) his employer took
the adverse action because of the protected activity. See, e.g., Barnhill, 138 F.4th at 132; Barbour,
105 F.4th at 590; Massaro v. Fairfax Cnty., 95 F.4th 895, 902 (4th Cir. 2024); Cosby, 93 F.4th at
718; Mclver v. Bridgestone Ams., Inc., 42 F.4th 398, 411 (4th Cir. 2022); Walton, 33 F.4th at 177;
Holloway, 32 F.4th at 299-300; Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 122 (4th Cir.
2021); Sempowich v. Tactile Sys. Tech., Inc., 19 F.4th 643, 653 (4th Cir. 2021); Kitlinski v. U.S.
Dep’t of Just., 994 F.3d 224, 232 (4th Cir. 2021); Wilcox v. Lyons, 970 F.3d 452, 460 (4th Cir.
2020); Evans v. Int’] Paper Co., 936 F.3d 183, 195 (4th Cir. 2019); Perkins, 936 F.3d at 213; Savage
v. Maryland, 896 F.3d 260, 276 (4th Cir. 2018); Strothers v. City of Laurel, 895 F.3d 317, 327 (4th
Cir. 2018); Guessous, 828 F.3d at 217; Foster v. Univ. of Md. E. Shore, 787 F.3d 243, 253 (4th Cir.
2015); DeMasters v. Carilion Clinic, 796 F.3d 409, 416 (4th Cir. 2015); Boyer-Liberto, 786 F.3d

13

at 281; Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 410 (4th Cir. 2013); see also
Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 67-70 (2006); Bonds v. Leavitt, 629 F.3d
369, 384 (4th Cir. 2011).
Title VII protects two kinds of activities: opposition and participation. See Netter v.
Barnes, 908 F.3d 932, 937-38 (4th Cir. 2018); Laughlin v. Metro. Wash. Airports Auth., 149 F.3d
253, 259 (4th Cir. 1998). “[O]ppositional activity must be directed to ‘an unlawful employment
practice’ under Title VII... .” DeMasters, 796 F.3d at 417 (citation omitted); see Netter, 908 F.3d
at 937-38; Boyer-Liberto, 786 F.3d at 282; Laughlin, 149 F.3d at 259. The opposition clause
applies when an employee “opposes not only employment actions actually unlawful under Title
VII but also employment actions [he] reasonably believes to be unlawful [under Title VII].”
DeMasters, 796 F.3d at 417 (cleaned up); see Netter, 908 F.3d at 937-38; Boyer-Liberto, 786 F.3d
at 282. The participation clause protects employees making a charge, testifying, assisting, or
participating in any manner in an investigation, proceeding, or hearing under Title VII. See 42
U.S.C. § 2000e-3(a); Laughlin, 149 F.3d at 259.
“To establish a causal relationship between the protected activity and the [adverse action],
a plaintiff must show that the decisionmaker was aware of the protected activity at the time the
alleged retaliation occurred.” Roberts, 998 F.3d at 124. 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.

14

53; see also Conrad v. CSX Transp., Inc., 824 F.3d 103, 108 (4th Cir. 2016); Gestamp S.C., LLC.
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., Breeden, 532 U.S. at 273-74; Price v.
Thompson, 380 F.3d 209, 213 (4th Cir. 2004), abrogated on other grounds by Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 570 U.S. 338 (2013). An adverse action taken shortly after an employer
learned of protected activity typically permits a reasonable inference of causation. See, e.g.,
Massaro, 95 F.4th at 902-03; 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, □
... Degates any inference that a causal connection exists between 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); 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); Barnhill, 138 F.4th at 132-35
(same for six months); Cosby, 93 F.4th at 721-22 (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 Educ., 876 F.3d 646, 656 (4th Cir. 2017) (same for eight to nine months); Causey v.
Balog, 162 F.3d 795, 803 (4th Cir. 1998) (same for 13 months). A plaintiff can rebut this
conclusion about time lapse by plausibly alleging that his employer’s actions taken during the
intervening period demonstrate retaliatory animus. See Barbour, 105 F.4th at 593-600; Massaro,
95 F.4th at 902-03; Alberti v. Rector & Visitors of the Univ. of Va., 65 F.4th 151, 156 (4th Cir.
2023); Walton, 33 F.4th at 177~78; Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007).
Whigham’s retaliation claim fails because he does not plausibly allege that he engaged in
protected activity. See DeMasters, 796 F.3d at 417; Netter, 908 F.3d at 937-38; Boyer-Liberto,

15

786 F.3d at 282; Laughlin, 149 F.3d at 259. Moreover, Whigham does not plausibly allege that he
reasonably believed Bell’s and Morris’s conduct violated Title VII or that the Tands’s
decisionmaker was aware that Whigham engaged in any protected activity under Title VII before
terminating his employment. Thus, the court dismisses claim three.
In claim four, Whigham brings an OSHA retaliation clam. OHSA does not provide a
private right of action for retaliation. See Scarborough v. Aegis Comme’ns Grp., Inc., 217 F.3d
840, at *1 (4th Cir. 2000) (per curiam) (unpublished table decision); Albrecht v. Balt. & Ohio R.R.,
808 F.2d 329, 332-33 (4th Cir. 1987); Johnson v. Interstate Mgmt. Co., 849 F.3d 1093, 1096-98
(D.C. Cir. 2017) (Kavanaugh, J.); Elliott v.S.D. Warren Co., 134 F.3d 1, 4 (Ist Cir. 1998). Thus,
the court dismisses claim four.
B.
Tands removed the action to this court based on federal question jurisdiction. See [D.E. 1]
1-3. The court has dismissed Whigham’s federal claims. The court declines to exercise
supplemental jurisdiction over Whigham’s state-law claims and remands the action to Nash
County Superior Court. See 28 U.S.C. § 1367(c)(3); Royal Canin U.S.A., Inc. v. Wullschleger,
604 U.S. 22, 31-32 (2025); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988); United
Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966); Kovachevich v. Nat’] Mortg. Ins. Corp.,
140 F.4th 548, 556 (4th Cir. 2025); Henderson v. Harmon, 102 F.4th 242, 251 (4th Cir.
2024); ESAB Gprp., Inc. v. Zurich Ins. PLC, 685 F.3d 376, 394 (4th Cir. 2012); Shanaghan v. Cahill,
58 F.3d 106, 110 (4th Cir. 1995).
IV.
In sum, the court GRANTS defendant’s motion to dismiss [D.E. 6, 12], DENIES AS
MOOT plaintiff’s motion for leave to amend the complaint [D.E. 11], DECLINES to exercise

16

supplemental jurisdiction over plaintiff’s state-law claims, and REMANDS the action to Nash
County Superior Court.
SO ORDERED. This 7 day of April, 2026.

sha —
J S C. DEVER Il
United States District Judge

17

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11344191. Public record. Not legal advice.