Howard v. College of the Albemarle et al

Filing 101

ORDER granting 38 Motion for Summary Judgment; denying as moot 46 Motion under Rule 56(d); granting 73 Motion to Seal Document; granting 79 Motion to Seal; denying 79 Motion for Sanctions; denying 79 Motion to Expedite; denying [8 3] Motion to Compel; denying 83 Motion for Sanctions; denying 84 Motion for Discovery; denying 84 Motion to Compel; denying 84 Motion for Sanctions; granting 87 Motion to Seal; granting 89 Motion for Leave to File; granting 95 Motion to Seal; denying 97 Motion to Strike ; Ex Parte granting 99 Ex Parte Motion to Seal. Signed by Chief Judge James C. Dever III on 3/27/2017. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DMSION
No. 2:15-CV-39-D

ROBERT HOWARD,
Plaintiff,

v.

)
)
)
)

)

COLLEGE OF THE ALBEMARLE,
and KANDI DEITEMEYER,
Defendants.

ORDER

)
)
)
)
)

On July 29, 2016, College of the Albemarle and Kandi Deitemeyer ("defendants") moved
for summary judgment [D.E. 38] in this employment-discrimination action and filed a memorandum
in support [D.E. 41]. On September 28, 2016, Robert Howard, ("Howard" or "plaintiff'), who
proceeds prose, responded in opposition [D.E. 58]. On October 17, 2016, defendants replied [D.E.
68]. As explained below, the court grants defendants' motion for summary judgment.
I.
On May 1, 2013, College of the Albemarle ("COA") hired Howard as the Vice President of
Business and Administrative Services. See [D.E. 43] ~ 1; [D.E. 59] ~ 1; Compl. [D.E. 5-1] ~ 7; Ans.
[D.E. 6]

~

7. On April 5, 2013, Howard signed a 60-day contract. See [D.E. 68-4]. Under the

contract, Howard was ''to perform services as Vice President of Business and Administrative
Services ... commencing on the 1st day of May 2013, and continuing through the 30th day of June
2013." Id.
COA's President, Kandi Deitemeyer ("Deitemeyer"), made the decision to hire Howard.
Deitemeyer Aff. [D.E. 61-1] ~ 13. When Deitemeyer decided to hire Howard, Deitemeyer knew that

Howard was a male, over age 40, and older than her; however, neither Howard's gender nor his age
had anything to do with Deitemeyer' s decision to hire Howard. See id. As COA President,
Deitemeyer does not have to obtain permission from the Board of Trustees to hire, discipline, or
terminate employees. [D.E. 17-2] ~21; see [D.E. 43] ~ 4; [D.E.

59]~ 4.

The COApersonnelpolicy

states that all employees, when not employed under a contract, may be terminated at will. [D.E. 172]

~ 21;

see [D.E. 43]

~

5; [D.E.

59]~

5.

Howard's initial contract expired on June 30, 2013, after which he continued as an at-will
employee. [D.E. 68-4]; see [D.E. 43]

~

6; [D.E. 59] ~ 6.

In September 2013, Deitemeyer evaluated Howard's performance by writing her own
evaluation, obtaining an evaluation from Howard's colleagues, and obtaining Howard's own selfevaluation. See Deitemeyer Aff.

~

8; [D.E. 17-11]; [D.E. 43]

~

7; [D.E.

59]~

7. The evaluation

Howard's colleagues provided to Deitemeyer included the following comments:
•"I think he is trying but seems overwhelmed ...."
• "[D]oes not come prepared to the meetings- does not have material with him."
• "[W]as concerned with his response concerning his area. (In the heat of the
moment, told me 'no one was going to tell me how to organize/staff his area' - his
tone really surprised me. I also received a telephone call concerning Bob's
unprofessional conduct. I have had several staff members share concerns with me ex.: forgetful, delegates 'his' work to other staff members .... I have concerns about
his overall performance .... "
• "Lacks in organization of office and often cannot find or misplaces documents of
importance. Seems to have difficulty recalling conversations, e-mails, etc. regarding
work related situations and has to be reminded constantly of history of situations."
• "Forgetful. Not organized. Has not gotten any concept of how things are run at
COA. Does not have any comprehension as to his duties."
• "I personally feel Mr. Howard does not respect the employees under him. He does
not value their history or knowledge .... It appears he has severe problems with his
memory .... He doesn't remember whole conversations .... You can't trust that he
has done what he said he would ...."
'
• "He does delegate items, but often it is ineffective and he doesn't seem to be aware
of the additional stress his delegation causes his staff .... Bob has had difficulty
learning and managing the many hats of his position."

2

[D.E. 17-12] 4-5. Deitemeyer's own written evaluation reflected some of the same concerns as
Howard's colleagues, as well as her own concerns. See [D.E. 17-11]. Deitemeyer found ''that
[Howard] is much more comfortable in the 'big picture' and abstract than with concrete, and detail
oriented nuances of the business office operations." Id. at 1. Deitemeyer also noted that "[i]n his
first 90+ days at COA, I anticipated much deeper and cognizant outcomes to the body of work he
inherited; however his approach to his role has been sporadic, confused and at times disorganized."
_)

Id. Deitemeyer also found that "[Howard] is struggling in his new role at COA. He is well liked,
but overall there is not a momentum of confidence for him in this role. His style ofleadership has
been very different and somewhat difficult for his division." Id. at 3. Deitemeyer also noted that she
had "concerns about [Howard's] ability to thrive in the role long term" and that she planned to
"monitor his performance and fit with COA for the next several months. In short, my confidence
and that of his team should be much higher given the work experience he brought to the college and
this role." Id. at 6.
On August 7, 2013, Howard completed a self-evaluation form. [D.E. 17-13]; see [D.E. 43]
~~ 7,

12; [D.E. 59] ~~ 7, 12. The form asked employees to rate themselves on a scale of 1 to 5 in 26

categories, and also asked open-ended questions. Howard gave himself 4' sand 5' s in each category
and did not answer the open-ended questions. [D.E. 17-13].
On an unspecified date, Deitemeyer told Howard she was concerned about his performance.
Deitemeyer A:ff.

~

9. Deitemeyer explained that Howard was not able to provide her with the

"informed recommendations, reliable data, and confident financial and cost analysis" Deitemeyer
needed as President and that Howard was more concerned about abstract issues. Id.; [D.E. 43] ~ 23;
[D.E. 59] ~ 23. During the meeting, Deitemeyer tried to make clear to Howard that he "had not built
sufficient confidence and trust" with his team or with her and that his performance had to improve

3

''very quickly." Deitemeyer Aff. , 9. Deitemeyer believed that Howard lacked "a sufficient
understanding, knowledge or focus on the details of his job," but she did not believe these issues
related to a memory problem or any type of disability. ld. Nonetheless, during the meeting Howard
said he would have his memory tested. Id. Deitemeyer did not ask Howard to get his memory tested
and "did not care about whether he had any type of test performed." ld.
On September 11, 2013, Deitemeyer offered Howard a contract to continue his employment
on a probationary basis through October 31, 2013. [D.E. 68-5]. On October 16, 2013, Howard
signed the contract. Id. Other than the dates of employment and execution, Howard's May 2013
contract and the October 2013 probationary contract contained identical provisions, including the
following:
All new staff appointments to positions and services of the institution are for a
probationary period of nine (9) working months. An employee may be dismissed at
anytime during the probationary period without notice or cause if it is felt that the
employee is not capable of carrying out his/her assigned duties and responsibilities.

It is clearly understood, agreed, and acknowledged by the EMPLOYEE that the term
of employment hereunder shall not extend beyond the term of employment
hereinabove set forth, and there is no expectancy of employment or re-employment
beyond the term provided in this agreement, nor has such been offered or implied.
Therefore, by accepting this contract the employee acknowledges that he/she has no
property interest or right to continued employment after the termination date for this
contract. Although the employee may be asked to report to duty between contractual
periods, such continued employment is terminable at will until the employee and
President have both signed a new contract.

This contract for services supersedes any previously signed agreement, and may only
be modified by an instrument of equal dignity herewith, and the interpretation of
terms used herein shall be governed by the laws of the State ofNorth Carolina.
ld.; see [D.E. 68-4].
It was unusual for Deitemeyer to issue such a brief contract extension to a member of her

4

leadership team, but she did so because she had serious concerns about Howard's performance.
Deitemeyer Aff. ~ 10. After Howard's probationary contract expired on October 31, 2013, Howard
did not sign any new employment contract.
On November 6, 2013, Wendy Brickhouse ("Brickhouse"), COA's Human Resources
Director, sent an email to Howard and Deitemeyer that read:
Based on the discussion held late yesterday afternoon in the President's Office, I will
not discuss the salary for Dennis with you unless you can treat me professionally and
respect the current college policy. On several occasions, you have been disrespectful
towards me and have created a hostile and offensive environment in our working
relationship.
[D.E. 17-14].
On November 8, 2013, Teresea Harris ("Harris"), another COA employee, complained to
Deitemeyer about Howard. See [D.E. 17-15]. Harris complained about Howard's conduct at a
training session attended by herself, Howard, and several other COA employees. Id. Harris made
a suggestion in the meeting about the form of a report, and in response Howard, "in front of my coworkers and our trainer, went a little ballistic about getting exactly what he wanted.;' ld. Harris
complained that Howard's behavior "is totally unprofessional behavior in a 'Professional' employer
against his subordinate employee." Id. Susan Gentry ("Gentry"), another COA employee, attended
the meeting when Howard ''went a little ballistic" at Harris, and Gentry corroborated Harris's
account. [D.E. 38-4] 5-9.
Deitemeyer decided to terminate Howard's employment based on the above-described
evaluations, complaints, and performance concerns, and Deitemeyer' s determination that Howard
was not demonstrating the leadership skills, abilities, or attributes necessary to perform effectively
as COA's Vice President of Business and Administrative Services. See Deitemeyer Aff.

~~

8, 12.

On November 15, 2013, Deitemeyer and Brickhouse met with Howard to inform him of

5

Deitemeyer's decision to terminate his employment at COA. See id., 12; [D.E. 43] ,, 52, 54; [D;E.
59] ,, 52, 54. Deitemeyer handed Howard a termination letter, which states:
As you are aware, you joined the college on May 1, 2013, as the Vice President of
Business and Administrative Services. In accordance with College policy, you
received a 90 day evaluation, which included feedback from colleagues, subordinates
and myself. The evaluation showed several areas which needed attention as you
moved forward in this critical role at College ofThe Albemarle. As an outcome, you
were extended a contract only through October 31, 2013, which has since ended.
Thus, your contract has expired and you are currently serving at will.
After very careful consideration, I have decided not to continue your employment
with the College. Therefore, effective immediately, the College will be moving in
another direction to advance the mission of the college, as we vision toward
becoming a premier community college.

Thank you for your service to the College. I wish you the best in your future
endeavors.
[D.E. 17-16] (emphasis in original). During the meeting Deitemeyer did not mention Howard's age,
sex, or memory, although the letter referenced the evaluation which included COA employees'
comments about Howard's memory. [D.E. 43] , 56; [D.E. 59] , 56.
COA has a grievance policy that allows employees (including at-will employees) to request
a hearing before the Board of Trustees. See [D.E. 17-7]; [D.E. 17-2], 21. An employee may
receive such a hearing if the employee submits a written request within ten days of his or her

'
dismissal, demonstrating that "impermissible reasons" were involved in the dismissal. [D.E. 17-7]
5. The policy defines "impermissible reasons" to include various forms of discrimination, including
discrimination based on sex, age, or disability. Id. at 2.
Howard never requested a hearing in accordance with COA's grievance policy.· [D.E. 43]
, 58; [D.E. 59] , 58. 1 In a letter dated November 20, 2013, Howard complained to COA's Board

1

In his response to COA's statement of material facts, Howard claims that he did request a
hearing, but does not cite to admissible evidence supporting this contention. See [D.E. 43], 58;

6

ofTrustees about COA' s management, operations, and personnel administration and praised his own
accomplishments. [D.E. 17-17]. In the letter, Howard noted that his evaluation contained "several
references to [his] memory" but that he believed those were ''just unkind remarks." Id. at 8. Howard
also stated that Deitemeyer "[i]ndicated that I am much older than she," but did not claim that he had
been fired because of his age. Id. Howard wrote that he believed the current personnel structure at
COA gave too much power to the president and thereby created "a place of fear and intimidation."
See id. at 11; see also [D.E. 38-3] 35.
OnApril4, 2014, Howard sentanotherlettertotheBoardofTrustees. [D.E. 43], 61; [D.E.
59] , 61. Again, Howard did not state in the letter that he believed that any impermissible reasons
motivated his termination. [D.E. 43], 61; [D.E. 59], 61. The Board of Trustees did not hold a
grievance hearing concerning Howard's second letter.
At some point after April4, 2014, Howard filed a charge of discrimination with the EEOC.
See [D.E. 38-3] 36; [D.E. 43] , 62; [D.E. 59] , 62. Howard alleged sex, age, and disability
discrimination. See Compl., 114. On June 23, 2015, the EEOC issued a right to sue notice to
Howard. [D.E. 43], 63; [D.E. 59], 63.
On September 23, 2015, Howard filed suit in Pasquotank County Superior Court. See
Compl. [D.E. 5-1]. Defendants timely removed the action to this court based on federal-question
jurisdiction under 28 U.S.C. § 1331 and supplemental jurisdiction under 28 U.S.C. § 1367. See
[D.E. 1, 5]. Howard's complaint contains five claims: (1) sex discrimination in violation of Title
VII of the Civil Rights Act of 1964 ("Title VII'') against COA (Compl. ,, 117-30); (2) disability
discrimination in violation of the Americans with Disabilities Act ("ADA") against COA (id.

see also Local Civ. R. 56.1(a)(3). Therefore, the assertion that Howard never requested a hearing
is deemed admitted. See Local Civ. R. 56.1(a)(2)-(3).

7

~~

131-36); (3) age discrimination in violation of the Age Discrimination in Employment Act of

1967 ("ADEA") againstCOA(id. ~~ 137-46); (4)wrongfuldischarge in violationofNorthCarolina
public policy against COA (id. ~~ 147-58); and (5) intentional infliction of emotional distress against
Deitemeyer (ill,. ~~ 159-70).

II.
In considering defendants' motion for summary judgment, the court views the evidence in
the light most favorable to Howard and applies well-established principles under Ru1e 56 of the
Federal Ru1es of Civil Procedure.

See,~'

Fed. R. Civ. P. 56; Scott v. Harris, 550 U.S. 372, 378

(2007); CelotexCor.p. v. Catrett,477U.S. 317,325-26 (1986);Anderson v. LibeeyLobby.Inc.,477
U.S. 242,247-55 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Cor.p., 475 U.S. 574, 585-87
(1986). Summary judgment is appropriate "if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(a);
see Anderso!l, 477 U.S. at 247-48. The party seeking summary judgment must initially come
forward and demonstrate an absence of a genuine issue of material fact or the absence of evidence
to support the nonmoving party's case. Celotex Cor.p., 4 77 U.S. at 325. Once the moving party has
met its burden, the nonmoving party then must affirmatively demonstrate that there exists a genuine
issue of material fact for trial. See Matsushim, 475 U.S. at 586-87.
"[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party
for a jury to return a verdict for that party." Anderso!l, 477 U.S. at 249. Conjectural arguments will
not suffice. See id. at249-S2; Bealev. Hardy, 769 F.2d213, 214 (4th Cir. 1985)("Thenonmoving
party ... cannot create a genuine issue of material fact through mere specu1ation or the building of
one inference upon another."). It is insufficient to show a "mere ... scintilla of evidence in support
of the [nonmoving party's] position ... ; there must be evidence on which the [factfinder] cou1d

8

reasonably find for the [nonmoving party]." Anderson, 477 U.S. at 252.
A.
In count one, Howard contends that COA terminated his employment due to his sex. Howard
lacks direct evidence of such disparate treatment; therefore, he relies on the burden-shifting
frameworkinMcDonnellDouglasCom. v. Green,411 U.S. 792(1973). Under McDonnell Douglas,
Howard first must establish a prima facie case of sex discrimination by showing that (1) he is a
member of a protected class; (2) he was discharged; (3) he was fulfilling his employer's legitimate
expectations at the time ofhis discharge; and (4) the discharge arose under circumstances permitting
a reasonable inference of sex discrimination.

See,~'

Hill v. Lockheed Martin Logistics Mgmt..

Inc., 354 F.3d 277, 285 (4th Cir. 2004) (en bane), abrogated in part on other grounds by Univ. of
Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013); Hughes v. Bedsole, 48 F.3d 1376, 1383 (4th
Cir. 1995). If Howard succeeds in proving his prima facie case, the burden shifts to COA to
articulate a legitimate, nondiscriminatory reason for Howard's discharge.

See,~'

St. Mazy's

HonorCtr. v. Hicks, 509U.S. 502,506-09 (1993); Tex. Dep'tofCmzy.Affairsv. Burdine, 450U.S.
248, 254 (1981 ).

If COA carries this burden of production by articulating a legitimate,

nondiscriminatory reason for Howard's discharge, Howard must prove that the reason offered by
COA was a mere pretext for sex discrimination. See,~' Reeves v. Sanderson Plumbing Prods ..
Inc., 530 U.S. 133, 143 (2000); Burdine, 450 U.S. at 253-56; Hux v. Ci1y of Newport News, 451
F.3d311, 315 (4th Cir. 2006); Warch v. Ohio Cas. Ins. Co., 435 F.3d 510,514 (4thCir. 2006); Hill,
354 F.3dat298; Kingv. Rumsfeld, 328 F.3d 145, 150-54 (4th Cir. 2003); Wilemativ. Fr~ 979
F.2d 30, 33 (4th Cir. 1992).
A plaintiff can prove pretext by showing that the alleged nondiscriminatory "explanation is
unworthy of credence or by offering other forms of circumstantial evidence sufficiently probative
9

of[sex] discrimination." Mereish v. Walker, 359 F.3d 330, 336 (4th Cir. 2004) (quotation omitted);
Reeves, 530 U.S. at 147. In analyzing the record concerning pretext, the court does not sitto decide
whether the employer in fact discriminated against the plaintiff on the basis of sex. See, ~'
Holland v. Washington Homes. Inc., 487 F.3d 208,217 (4th Cir. 2007); Hawkins v. PepsiCo. Inc.,
203 F.3d 274,279-80 (4th Cir. 2000). Rather, the court focuses on whethertheplaintiffhas raised
a genuine issue of material fact as to pretext under Reeves and its Fourth Circuit progeny. Under
Reeves and its Fourth Circuit progeny, a plaintiff may not "simply show the articulated reason is
false; he must also show that the employer discriminated against him on the basis of [sex]." Laber
v. Harvey, 438 F.3d404, 430-31 (4thCir. 2006) (en bane). In certain cases, however, thefactfinder
may infer illegal discrimination from the articulated reason's falsity. See id. at 431; Rowe v. Marley
Co., 233 F.3d 825, 830 (4th Cir. 2000).
An employer is entitled to summary' judgment on the issue of pretext if the employee
"create[s] only a weak issue of fact as to whether the employer's reason [is] untrue and there [is]
abundant and uncontroverted independent evidence that no discrimination had occurred." Reeves,
530 U.S. at 148. Moreover, "a plaintiffs own assertions of discrimination in and of themselves are
insufficient to counter substantial evidence oflegitimate nondiscriminatory reasons for a discharge."
Dockins v. Benchmark Commc'ns, 176 F.3d 745, 749 (4th Cir. 1999) (quotation omitted).
Terminating an employee for poor performance is not sex-related, and an employer lawfully can rely
on poor performance in taking adverse employment action. See Mereish, 359 F .3d at 335; Hawkins,
203 F.3d at 280; Fisher v. Asheville-Buncombe Tech. Cmty. Coll., 857 F. Supp. 465, 469-70
(W.D.N.C. 1993).
COA argues that Howard was not fulfilling COA's legitimate expectations when COA
discharged him. In support, COA cites Deitemeyer' s testimony and supporting documentation

10

detailing Deitemeyer' s beliefthat Howard's poor performance demonstrated he lacked the leadership
skills, abilities, or attributes necessary to perform effectively as COA's Vice President of Business
and Administrative Services. See [D.E. 41] 15. Howard responds that his own testimony shows he
was qualified and performing his job duties satisfactorily. See [D.E. 58] 2--6.

In considering whether an employee was meeting his employer's legitimate expectations,
however, "it is the perception of the [employer] which is relevant, not the self-assessment of the
plaintiff." Hawkins, 203 F.3d at 280 (alteration and quotation omitted); see King, 328 F.3d at 149;
Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980); McDougal-Wilson v. Goodyear Tire & Rubber
Co., 427 F. Supp. 2d 595,607 (E.D.N.C. 2006). Thus, an employee's own testimony about his job
performance does not create a genuine issue of material fact as to whether he was meeting his
employer's legitimate expectations. See, ~' King, 328 F .3d at 149; Hawkins, 203 F .3d at 280;
Smith, 618 F.2d at 1067; Smith v. Mm1ID, No. 5:10-CV-248-D, 2011 WL 3703255, at *5 (E.D.N.C.
Aug. 23, 2011) (unpublished); O'Daniel v. United Hospice, No. 4:09-CV-72-D, 2010 WL 3835024,
at *4 (E.D.N.C. Sept. 29, 2010) (unpublished); Lloyd v. New Hanover Reg'l Med. Ctr., No.
7:06-CV-130-D, 2009 WL 890470, at *9 (E.D.N.C. Mar. 31, 2009) (unpublished); McDougalWilson, 427 F. Supp. 2d at 611. Likewise, to the extent Howard seeks to rely on the opinion
evidence of some coworkers concerning his performance,2 such opinion evidence does not create a
genuine issue of material fact as to whether he was meeting his employer's legitimate expectations.
See King, 328 F.3d at 149; Hawkins, 203 F.3d at 280; Smith, 2011 WL 3703255, at *5. Even
viewing the evidence in the light most favorable to Howard, Howard has failed to establish a prima
facie case of sex discrimination. Thus, the court grants summary judgment to COA on count one.

2

See [D.E. 59], 8 (collecting excerpts of positive references to Howard from coworkers'
deposition testimony).

11

Alternatively, even if Howard could establish a prima facie case of sex discrimination, his
sex-discrimination claim would fail because COA has articulated a legitimate, nondiscriminatory
reason for discharging Howard-his poor performance-and Howard has not offered evidence from
which a rational factfinder could find that COA's proferred reason was a pretext designed to mask
sex discrimination. See Warcb, 435 F.3d at 514--16; Miles v. Dell. Inc., 429 F.3d 480, 488-89 &
n.5 (4th Cir. 2005); Hill, 354 F.3d at 285. Notably, Howard presents no admissible evidence
suggesting that COA's stated reason for discharging him was a pretext to mask sex discrimination.
Likewise, COA has consistently given the same reason to explain Howard's discharge: poor
performance.
In opposition, Howard again cites his own opinion about his performance and laments
Deitemeyer' s expectations as President and COA' s alleged failure to give him enough time to adjust
to his new position. See [D.E. 58] 7-13. Howard also argues that Deitemeyer's concerns were
factually inaccurate and based on flawed information from Deitemeyer' s subordinates. See id. at
13-15. Specifically, Howard contends that the Harris email contains inaccurate information about
Howard and the Brickhouse email overstated Howard's conduct. See id.
Although Howard subjectively believes that he was performing well, an employee's
(

perception of his own performance cannot establish a genuine issue of material fact as to whether
the employee was meeting his employer's legitimate expectations.

See,~,

King, 328 F .3d at 149;

Hawkins, 203 F .3d at 280; Smith, 618 F .2d at 1067. Although Howard contests the factual accuracy
ofthe critiques ofhis performance, including the Brickhouse and Harris emails, the accuracy ofthose
critiques is irrelevant to the court's inquiry.

Rather, the issue is whether Deitemeyer, the

decisionmaker, believed the critiques to be true, which she did. See Holland, 487 F.3d at 215-17;
Hill, 354 F.3d at 293-94; Hawkins, 203 F.3d at 280. Furthermore, this court does not sit as a super12

personnel board and ask whether COA (through Deitemeyer) should have excused Howard's poor
performance or given him more time to improve. See Anderson v. Westinghouse Savannah River
Co., 406 F.3d 248, 272 (4th Cir. 2005); DeJarnette v. Corning Inc., 133 F.3d 293, 299-300 (4th Cir.
1998).

Additionally, the same-actor inference further undermines Howard's claim in that

Deitemeyer was the decisonmaker who hired Howard and, shortly thereafter, fired Howard. See
Proud v. Stone, 945 F.2d 796,797 (4th Cir. 1991) ("[I]n cases where the hirer and the firer are the
same individual and the termination of employment occurs within a relatively short time span
following the hiring, a strong inference exists that discrimination was not a determining factor for
the adverse employment action taken by the employer."); see also Taylor v. Va. Union Univ., 193
F.3d 219, 231 (4th Cir. 1999) (en bane), abrogated in part on other grounds hy Desert Palace Inc ..
v. Cosm, 539 U.S. 90 (2003); Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir.
1996); Tyndall v. Nat'l Educ. Ctrs.. Inc., 31 F.3d 209,214--15 (4th Cir. 1994). Even viewing the
evidence in the light most favorable to Howard, no rational jury could find that COA (through
Deitemeyer) was being dishonest when she explained that COA terminated Howard's employment
for poor performance and that the reason was designed to mask sex discrimination. Accordingly,
Howard's sex-discrimination claim fails, and the court grants summary judgment to COA on
Howard's sex-discrimination claim.

B.
In count two, Howard alleges disability discrimination in violation ofthe ADA. Howard has
no direct evidence of disability discrimination under the ADA and relies on the burden-shifting
framework in McDonnell Douglas. See Raytheon Co. v. Hernandez, 540 U.S. 44, 49 n.3 (2003).
To establish a prima facie case for his ADA claim, Howard must "produce evidence sufficient to
demonstrate that (1) he was a qualified individual with a disability; (2) he was discharged; (3) he was
13

fulfilling his employer's legitimate expectations at the time of discharge; and (4) the circumstances
of his discharge raise a reasonable inference of unlawful discrimination." Reynolds v. Am. Nat'l
Red Cross, 701 F.3d 143, 150 (4th Cir. 2012) (alterations and quotations omitted); Rohan v.
Networks Presentations LLC, 375 F.3d 266,272 n.9 (4th Cir. 2004); Rhoads v. F.D.I.C., 257 F.3d
373, 387 n.ll (4th Cir. 2001); Haulbrook v. Michelin N. Am.. Inc., 252 F.3d 696, 702 (4th Cir.
2001); Rocha v. Coastal Carolina

Neurop~chiatric

Crisis Servs., 979 F. Supp. 2d 670, 677

(E.D.N.C. 2013V
COA argues that Howard has not produced evidence that he was a "qualified individual" with
a disability under the ADA. See 42 U.S.C. § 12112(a). The ADA defines "disability" as "(A) a
physical or mental impairment that substantially limits one or more major life activities ... ; (B) a
record of such an impairment; or (C) being regarded as having such an impairment (as described in
paragraph (3))." 42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(g)(l). Section 12102(3), in tum, states:
For purposes of paragraph (1)(C):
(A) An individual meets the requirement of "being regarded as having such an
impairment" if the individual establishes that he or she has been subjected to an
action prohibited under this chapter because of an actual or perceived physical or
mental impairment whether or not the impairment limits or is perceived to limit a
major life activity.
(B) Paragraph 1(C) shall not apply to impairments that are transitory and minor. A
transitory impairment is an impairment with an actual or expected duration of 6
months or less.
Uri.der section 12102(3), which Congress added in the ADAAA, an individual bringing a "regarded

as" claim need only show that an employer subjected him to an action the ADA prohibits because

3

Although this order includes citations to cases applying the ADA before the ADA
Amendment Act of2008 ("ADAAA"), the court has applied the ADAAA to Howard's ADA claim.
See,~' 42 U.S.C. § 12102(3); 29 C.F.R. § 1630.2(1)(1); Olsen v. Capital Region Med. Ctr., 713
F.3d 1149, 1154 (8thCir. 2013); Youngv. United Parcel Serv.• Inc., 707 F.3d437, 443 n.7 (4thCir.
2013).
14

of an actual or perceived impairment regardless of whether the employer perceived the impairment
to limit the individual in a major life activity. See 42 U.S.C. § 12102(3); 29 C.F.R. § 1630.2(1)(1);
Olse11, 713 F.3dat 1154; Gecewiczv. HemyFordMacombHosp. Corp., 683 F.3d316, 321-23 (6th
Cir. 2012); Harris v. RestonHosp. Ctr.. LLC, No. 1:10-cv-1431, 2012 WL 1080990, at *4-S (E.D.
Va. Mar. 26, 2012) (unpublished). Thus, a "regarded as" claim under the ADAAA is much easier
to prove than a "regarded as" claim before the ADAAA. Cf. Young, 707 F .3d at 443-44 (analyzing
a pre-ADAAA ''regarded as" claim);

Roh~

375 F.3d at 277-78 (same); Pollard v. High's of

Baltimore. Inc., 281 F.3d 462,471 n.S (4th Cir. 2002) (same); Davis v. Univ. ofN.C., 263 F.3d 95,
99-100 (4th Cir. 2001) (same); Rhoads, 257 F.3d at 390-91 (same); Haulbrook, 252 F.3d at 703
(same).
Howard contends that COA regarded him as having an impairment related to his memory and
fired him because it mistakenly believed that he had an impairment concerning his memory. See
Compl. ,, 132-34. In support, Howard cites the references to Howard's forgetfulness and memory
in his colleagues' evaluation and the summary of that evaluation Deitemeyer provided. See [D.E.
58] 7; see also [D.E. 17-11 & 17-12] (evaluations).
Deitemeyer testified that she did not consider Howard to have a mental or physical disability,
condition, or impairment-concerning his memory or anything else-even though Howard may have
forgotten or failed to follow through on some of his duties. See Deitemeyer

Aff.,

9. Moreover,

although the record does contain comments ofcertain colleagues who described Howard as forgetful,
no evidence suggests Deitemeyer ever discussed Howard's memory with COA employees. Viewing
the record in the light most favorable to Howard, no rational jury coUld find that COA regarded
Howard as being disabled under the ADA. Thus, the court grants summary judgment to COA on
Howard's ADA claim.
15

Alternatively, Howard has failed to create a genuine issue of material fact about whether he
was :fulfilling COA' s legitimate expectations when COA terminated his employment. As discussed,
he was not. Accordingly, Howard has failed to establish a prima facie case under the ADA, and the
court grants summary judgment to COA on Howard's ADA claim. See Abilt v. Cent. Intelligence
Agency, 848F.3d305, 315 n.9 (4thCir. 2017); Rohru1, 375 F.3dat272n.9; Rhoads, 257F.3dat387
n.11 (4th Cir. 2001); Haulbrook, 252 F.3d at 702; Ennis v. Nat'lAss'nofBus. &Educ. Radio. Inc.,
53 F.3d 55, 61--62 (4th Cir. 1995); Rochil, 979 F. Supp. 2d at 677.

c.
In count three, Howard alleges age discrimination in violation of the ADEA; Howard has
no direct evidence of age discrimination and relies on the McDonnell Douglas framework. To
establish a prima facie case of age discrimination under the McDonnell Douglas framework, Howard
must prove that (1) he was in the age group protected by the ADEA; (2) he was discharged; (3) at
the time of his discharge, he was performing his job at a level that met his employer's legitimate
expectations; and (4) after his discharge, he was replaced by someone of comparable qualifications
who was substantially younger. See O'Connor v. Consol. Coin Caterers Cor,p., 517 U.S. 308,
310-13 (1996); Ruffv. Target Stores. Inc., 226F.App'x294, 300--03 (4thCir. 2007) (unpublished);
Laber, 438 F.3d at 430; Wood v. Town of Warsaw. N.C., 914 F. Supp. 2d 735, 739-40 (E.D.N.C.
2012).
COA argues that Howard has failed to raise a genuine issue of material fact as to whether
Howard was performing his job at a level that met COA's legitimate expectations when COA
discharged him. As discussed, COA has presented substantial evidence that Howard was not
performing his job at a level that met COA' s legitimate expectations when COA discharged him.
See Ruff, 226 F. App'x at 301-03; Diamond v. Bea Maurer. Inc., 128 F. App'x 968, 973 (4th Cir.
16

2005) (per curiam) (unpublished); Walsh v. Ciba-Geigy Corp., 121 F.3d 702, at *2 (4th Cir. 1997)
(unpublished table opinion). Therefore, Howard has failed to create a genuine issue of material fact
regarding whether he was meeting his employer's legitimate expectations at the time of his
discharge. Accordingly, Howard has failed to prove his prima facie case, and the court grants
summary judgment to COA on Howard's ADEA claim.
Alternatively, even if Howard established a prima facie case of age discrimination, Howard
has not raised a genuine issue of material fact as to whether COA's legitimate reason for his
termination (i.e., poor performance) was a pretext for age discrimination. It was not. See Laber, 43 8
F.3d at 430-31; Wood, 914 F. Supp. 2d at 742-44. Thus, the court grants summary judgment to
COA on Howard's ADEA claim.
D.
In count four, Howard alleges that COA wrongfully discharged him in violation of North

Carolina public policy. 4

North Carolina law governs Howard's wrongful-discharge claim.

Accordingly, the court must predict how the Supreme Court of North Carolina would rule on any
disputed state-law issue. See Twin City Fire Ins. Co. v. Ben Amold-Sunbelt Beverage Co. of S.C.,
433 F.3d 365, 369 (4th Cir. 2005). In doing so, the court must look first to opinions ofthe Supreme
Court of North Carolina. See Stahle v. CTS Corp., 817 F.3d 96, 100 (4th Cir. 2016). Ifthere are
no governing opinions from the Supreme Court of North Carolina, the court "may consider lower
court opinions[,] ... treatises, and the practices of other states." Twin City Fire Ins. Co., 433 F.3d

To the extent Howard asserts this claim against Deitemeyer, the claim fails. See,~'
Iglesias v. Wolford, 539 F. Supp. 2d 831, 840 (E.D.N.C. 2008) (supervisors are not "employers"
under North Carolina law and cannot be individually liable for wrongful discharge in violation of
North Carolina public policy), affd, 400 F. App'x 793 (4th Cir. 2010) (per curiam) (unpublished).
4

17

at 369 (quotation omitted). 5 In doing so, a federal court "should not create or expand [a] [s]tate's
public policy."

Time Warner Entm't-Advance/Newhouse P'ship v. Carteret-Craven Elec.

Membership Corp., 506 F.3d 304, 314 (4th Cir. 2007) (first alteration in original) (quotation
omitted); Wade v. Danek Med.. Inc., 182 F.3d 281, 286 (4th Cir. 1999). Moreover, in predicting
how the Supreme Court of North Carolina would address an issue, this court must "follow the
decision of an intermediate state appellate court unless there is persuasive data that the highest court
would decide differently." Toloczko, 728 F.3d at 397-98.
Under North Carolina law, an employer generally may terminate an at-will employee for any
reason. Gamer v. Rentenbach Constructors Inc., 350 N.C. 567, 568-72, 515 S.E.2d 438, 439-41
(1999). North Carolina recognizes a narrow exception to that general rule if an employee's
termination violates North Carolina public policy.

See,~'

Whitt v. Harris Teeter. Inc., 359 N.C.

625, 625, 614 S.E.2d 531, 532 (2005) (per curiam) (adopting dissenting opinion at 165 N.C. App.
32, 43-50, 598 S.E.2d 151, 159-63 (2004) (McCullough, J., dissenting)); Gamer, 350 N.C. at
568-72, 515 S.E.2d at 439-41; Amos v. Oakdale Knitting Co., 331 N.C. 348, 350-54,416 S.E.2d
166, 167-70 (1992); Coman v. Thomas Mfg. Co., 325 N.C. 172, 176-78, 381 S.E.2d 445,447-49
(1989). To prove a claim of wrongful discharge in violation of North Carolina public policy, a
plaintiff must identify and rely upon a specific North Carolina statute or North Carolina
constitutional provision stating North Carolina's public policy. See Gamer, 350N.C. at568-72, 515
S.E.2d at439-41; Amos, 331 N.C. at350-54, 416 S.E.2d at 167-70; Coman, 325 N.C. at 176,381
S.E.2d at 447; Home v. Cumberland Cty. Hosp. Sys .. Inc., 228 N.C. App. 142, 146, 746 S.E.2d 13,
17-19 (2013); Gillis v. Montgomezy Cty. Sheriff's Dep't, 191 N.C. App. 377,379-81,663 S.E.2d

5

North Carolina does not have a mechanism to certify questions of state law to its Supreme
Court. See Town ofNags Head v. Toloczko, 728 F.3d 391, 397-98 (4th Cir. 2013).
18

447,449-50 (2008); Whitings v. Wolfson Casing Cotp., 173 N.C. App. 218,222, 618 S.E.2d 750,
753 (2005); Considine v. Compass Grp. USA. Inc., 145 N.C. App. 314, 321, 551 S.E.2d 179, 184
(2001), affd, 354 N.C. 568, 557 S.E.2d 528 (2001) (per curiam).
The Supreme Court of North Carolina requires a plaintiff claiming wrongful discharge in
violation ofNorth Carolina public policy to allege "specific conduct by a defendant that violated a
specific expression ofNorth Carolina public policy" in a specific North Carolina statute or a specific
'

provision in the North Carolina Constitution. Considine, 145 N.C. App. at 321-22, 551 S.E.2d at
184; see Garner, 350N.C. at568-72, 515 S.E.2dat439-41; Amos, 331 N.C. at350-54, 416 S.E.2d
at 167-170; Comm 325 N.C. at 176-78, 381 S.E.2d at 447-49; Home, 228 N.C. App. at 146, 746
S.E.2dat 17-19; Gillis, 191 N.C.App. at379-80, 663 S.E.2dat449-50; Whitings, 173 N.C.App.
at 222, 618 S.E.2d at 753.
Howard bases his wrongful-discharge claim on allegations that Deitemeyer asked him to
falsify "a personnel letter that would be a violation of Plaintiff's CPA code of ethics" and that the
public policy of the State ofNorth Carolina "as articulated in N.C. Gen. Stat. § 93-12(9), including
21 NCAC 08N, [requires] that Certified Public Accountants maintain high-ethical standards, and not
falsely sign documents or bare false witness." Compl. ~ 151, 154. Howard contends that
Deitemeyer terminated him because he would not "falsify[] a disciplinary action against a college
employee." Id. ~ 155.
Count four concerns a COA employee named "Mr. D."6 COA employed Mr. D as the
Director of Campus Security and Mr. D reported to Howard. See [D.E. 17-21] ~ 3. Mr. D applied
for the position of Basic Law Enforcement Program ("BLET") Director. ld.

6

~

5. Suzanne

To protect the employee's confidentiality rights under N.C. Gen. Stat.§ 115D-29, the court
refers to the employee as "Mr. D." See [D.E. 31].
19

Rohrbaugh ("Rohrbaugh"), COA' s Vice President of Workforce Development and Continuing
Education at that time, chaired a search committee for the BLET Program Director position. See id.
~ 4.

The search committee consisted mostly of volunteers from various law-enforcement agencies

in COA's service area, including the Chief of Police of the City of Elizabeth City, the Sheriff of
Perquimans County, and the Chief Deputy from the Dare County Sheriffs Office. See id. When
the interview committee for the BLET Program Director position decided not to interview Mr. D,
Mr. D became upset and filed a grievance. See id.

~~5-7.

Rohrbaugh then learned that Mr. D

contacted at least one member of the Search Committee to gather information about why he was not
interviewed. See id. ~ 6. Rohrbaugh consulted with Wendy Brickhouse, COA' s Human Resources
Director, and each was concerned that Mr. D's actions might interfere with or disrupt the search-andselection process. See id.

~~

7-8, [D.E. 17-2] ~~ 10-11.

On October 28, 2013, Rohrbaugh forwarded a request from COA's attorney that Howard, as
Mr. D's supervisor, send Mr. Dan email stating:
It has come to my attention that you have contacted one or more of the members of
the selection committee for the position of Director of Law Enforcement Programs
to ask questions about the process. Apparently you have also disclosed to at least one
member of the committee, who is not an employee of the College and is only a
volunteer to the committee, that you are pursuing a grievance concerning the
selection process. Such contacts, particularly in the context in which your questions
were asked, are potentially disruptive to the process. The grievance which you filed,
as was your right, is a confidential personnel matter. It will be processed under
College procedure. While you have a right to pursue such a grievance, no person,
including potential candidates for a position, have a right to take other actions which
can be disruptive to the process. At this time, I am directing you not to contact any
of the members of the selection committee regarding any matter relating to the
selection process until further notice. It would be best for you to refrain from
communicating with any members of the committee about other matters as well in
order to avoid the appearance that you are trying to intimidate them or influence their
decision. Should you take any actions which could potentially interfere with or
disrupt this process, or which otherwise are intimidating towards members of the
committee, you will be subject to disciplinary action.

20

[D.E. 17-4] 1. Howard refused. See [D.E. 17-2] ~~ 12-13; [D.E. 17-21] ~~ 11-13; [D.E. 43] ~ 32;
[D.E. 59]

~

32. Howard then discussed Mr. D and the email separately with COA's attorney, but

persisted in refusing to communicate with Mr. D regarding his interference in the selection process.
See [D.E. 17-22] 2-3; [D.E. 43]

~

33; [D.E. 59]

~

33 ..

On October 29,2013, Brickhouse emailed Mr. D. [D.E. 17-3]; [D.E. 17-2] ~~ 14--15. The
last sentence in the proposed email was removed and replaced with a paragraph reading:
I urge you not to take any actions which could potentially interfere with or disrupt
this process, or which otherwise are intimidating towards members ofthe committee.
You should not discuss the substance of your grievance or the fact that you are
pursuing a grievance with other employees or members of the selection committee
because this could interfere with the investigation of your grievance. It is important
that employee grievances be kept confidential. Interfering with or disrupting the
selection process or the grievance investigation could lead to disciplinary action.
[D.E. 17-3]. After Mr. D received the email from Brickhouse, Mr. D. acknowledged receipt and told
Brickhouse he would not contact any other members of the search committee about the matter. See
[D.E. 17-2] ~ 16.
Although Howard believes that the document he was asked to send to Mr. D was a "letter"
and not an "email," Howard failed to produce any document different than the emails defendants
produced. See [D.E. 17-3 & 17-4]. Howard also argues that the document had "[a] different tone,
a different message.... [I]t was putting him on notice. It was personnel action, as I understood it."
[D.E. 17-22] 3. Nonetheless, Howard admits that it is reasonable for an employer to ask an
employee not to disrupt a search process. See [D.E. 43] ~ 36; [D.E. 59] ~ 36. Howard also admits
he is not aware of any statement in the email, as presented in the document COA has placed in the
record, thatwasnottrue. See [D.E. 43] ~37; [D.E. 59] ~37. Howard also admitshedidnotreceive
a copy of the letter he alleges he was asked to send and admits he has not seen anything other than
the document COA produced that looks like what he recalls being asked to send to Mr. D. See [D.E.
21

43] ~ 3 8; [D.E. 59] ~ 3 8. Moreover, Howard cannot recall any specific statement about the document
he was asked to send to Mr. D. Howard testified that the events were ''too far back for me to say
specific statements were in or not in. They may have been. A lot of this may have been, but I
believe there was more. I think it was different. The major difference is it's going from Wendy to
[Mr. D]." [D.E. 17-22] 4-5.
Deitemeyer knew that Howard refused to send the email to Mr. D. [D.E. 17-2] ~~ 13, 18.
Deitemeyer did not force Howard to send the email. See id. ~ 14. Moreover, Deitemeyer does not
recall Howard contemporaneously raising any ethical objection. [D.E. 43]

~ 40;

[D.E.

59]~ 40.

Howard's wrongful-discharge claim fails for at least two reasons. First, this court predicts
that the Supreme Court ofNorth Carolina would not conclude that the CPA Code of Ethics, N.C.
Gen. Stat. § 93-12(9),7 or 21 NCAC 8N8 specifically express North Carolina public policy with

7

N.C. Gen. Stat.§ 93-12(9) states:

Adoption of Rules of Professional Conduct; Disciplinary Action.--The Board shall
have the power to adopt rules of professional ethics and conduct to be observed by
certified public accountants in this State and persons exercising the practice privilege
authorized by this Chapter. The Board shall have the power to revoke, either
permanently or for a specified period, any certificate issued under the provisions of
this Chapter to a certified public accountant or any practice privilege authorized by
the provisions of this Chapter or to censure the holder of any such certificate or
person exercising the practice privilege authorized by this Chapter. The Board also
shall have the power to assess a civil penalty not to exceed one thousand dollars
($1 ,000) for any one or combination of the following causes:
a. Conviction of a felony under the laWs of the United States or of any state of the
United States.
b. Conviction of any crime, an essential element of which is dishonesty, deceit or
fraud.
c. Fraud or deceit in obtaining a certificate as a certified public accountant.
d. Dishonesty, fraud or gross negligence in the public practice of accountancy.
e. Violation of any rule of professional ethics and professional conduct adopted by
the Board.

22

respect to the email concerning Mr. D. See Home, 746 S.E.2d at 17-19; Gillis, 191 N.C. App. at
379-80, 663 S.E.2d at 449-50; Whitings, 173 N.C. App. at 222-23, 618 S.E.2d at 753-54;
Considine, 145 N.C. App. at 439-41, 551 S.E.2d at 183-84. Second, even if that statute or
regulation does express North Carolina public policy, and even considering the record in the light
most favorable to Howard, no rational jury could conclude that COA discharged Howard for
refusing to send the email to Mr. D. See [D.E. 43]

~

41; [D.E.

59]~

41. Thus, the court grants

summary judgment to COA on count four.

E.
In count five, Howard alleges intentional infliction ofemotional distress against Deitemeyer.

Any disciplinary action taken shall be in accordance with the provisions of Chapter
150B of the General Statutes. The clear proceeds of any civil penalty assessed under
this section shall be remitted to the Civil Penalty and Forfeiture Fund in accordance
with G.S. 115C-457.2.
N.C. Gen. Stat.§ 93-12(9).
8

21 NCAC 8N contains the Rules of Professional Ethics and Conduct the North Carolina
Board of Certified Public Accountant Examiners has adopted. Howard does not cite a specific .
portion of the administrative code, but apparently relies on the general admonition that
A CPA shall at all,times maintain independence of thought and action, hold the
affairs of clients in strict confidence, strive continuously to improve professional
skills, observe generally accepted accounting principles and standards, promote
sound and informative financial reporting, uphold the dignity and honor of the
accounting profession, and maintain high standards of personal conduct.
21 NCAC 8N.0201. Howard also apparently relies on 21 NCAC 8N.0202(a), which states that
A CPA shall not engage in deceptive conduct. "Deception" means any fraud,
misrepresentations, or omissions that a CPA either knew or should have known to
have a capacity to be misleading.
Id. 8N.0202(a).
23

\
To prove his claim of intentional infliction of emotional distress ("liED" claim), Howard must
prove: (1) that Deitemeyer engaged in extreme and outrageous conduct; (2) that the conduct was
intended to cause severe emotional distress; and (3) that the conduct in fact caused severe emotional
distress. See Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992). To be considered
"extreme and outrageous," the conduct must be '"so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable ina civilized community."' Hogan v. Forsyth Country Club Co., 79N.C. App. 483,493,
340 S.E.2d 116, 123 (1986) (quoting Restatement (Second) ofTorts § 46 cmt. d (1965)). Whether
conduct qualifies as "extreme and outrageous" is a question of law for the court. See, ~' Lenins
v. K-Mart Cor.p., 98 N.C. App. 590, 599, 391 S.E.2d 843, 848 (1990).
Under North Carolina law, it is extremely rare to find conduct in the employment context
that will rise to the level of outrageousness necessary to support an liED claim. See, ~' Bratcher
v. Pharm. Prod. Dev.• Inc., 545 F. Supp. 2d 533, 544-45 (E.D.N.C. 2008) (collecting cases); Efird
v. Riley, 342 F. Supp. 2d 413,427 (M.D.N.C. 2004); Thomas v. N. Telecom. Inc., 157 F. Supp. 2d
627, 635 (M.D.N.C. 2000); Atkins v. USF Dugan, Inc., 106 F. Supp. 2d 799, 810-11 (M.D.N.C.
1999). "[L]iability clearly does not extend to mere insults, indignities, [or] threats .... " Hogan, 79
N.C. App. at 493, 340 S.E.2d at 123 (citing Restatement (Second) of Torts§ 46 cmt. d (1965)).
Rather, "[i]n cases where North Carolina courts have found liED claims actionable, the conduct has
been extremely egregious, and involved sexual advances, obscene language, and inappropriate
touching." Bratcher, 545 F. Supp. 2d at 545 (collecting cases); see Moody-Williams v. LipoScience,
953 F. Supp. 2d 677, 683 (E.D.N.C. 2013); see also Payne v. Whole Foods Mkt. Grp .. Inc., 812 F.
Supp. 2d 705, 710 (E.D.N.C. 2011), affd, 471 F. App'x 186 (4th Cir. 2012) (per curiam)
(unpublished).
24

The record does not show, and Howard does not argue, that Deitemeyer directed any sexual
harassment, threats of physical or emotional harm, physical contact, obscene language, or other
similar misconduct at him, and Howard does not base his liED claim on such conduct. See [D.E.
43] ~ 64; [D.E. 59] ~ 64. Rather, Howard bases his liED claim on the same conduct that forms the
basis ofhis other claims. See Compl. ~~ 160-70.9 In his response to COA's s~tement of material

9

In his complaint, Howard alleges:

160.
161.
162.
163.
164.
165.
166.

167.
168.

169.

170.

Defendant engaged in extreme and outrageous behavior toward Plaintiff.
Plaintiff was often singled out for vicious, abusive, and incorrect attacks
including those outlined above.
Deitemeyer was particularly inappropriate and abusive surrounding her
compensation including as outlined above.
Deitemeyer was sometimes irrational and whimsical in Plaintiff's
assignments as the logo situation above illustrates.
Deitemeyer was reckless in taking Plaintiff from another job and treating him
so viciously and leaving him unemployed.
Deitemeyer knew that Plaintiffwas principal breadwinner of family of 4 with
one child in college.
Deitemeyer knew that Plaintiff was passionate about the mission of the
community college to the people of North Carolina and had spent a lot of
effort moving into the community college system and would find this
termination a crushing blow.
Deitemeyer willfully isolated Plaintiff from his colleagues.
Deitemeyerwas not satisfied to have Plaintiffmove on to another community
college opportunity. Indeed she sought to destroy and end Plaintiff's career
and impede his ability to support his family.
The plainly foreseeable nature of the emotional distress caused to Plaintiff
demonstrates Defendant's intention to cause Plaintiff severe emotional
distress, or at a minimum demonstrate that Defendant$ acted with reckless
indifference to the likelihood that such actions would cause Plaintiff severe
emotional distress.
The previously described actions did in fact cause Plaintiff severe emotional
distress. Plaintiff's symptoms include serious mental and emotional injuries
with physical manifestations. Plaintiff has been diagnosed with Anxiety
Disorder and Panic Attacks by qualified medical professionals, and been
forced to seek treatment and medication for these injuries.

Compl. ~~ 160-70.
25

facts, Howard lists numerous instances of alleged rude behavior by Deit~mey~r, but does not offer
any citations to the record supporting his claims. [D.E. 59] ~~ 64-66.
Howard has failed to raise a genuine issue of material fact concerning whether Deitemeyer
engaged in extreme and outrageous conduct. As a matter of law, she did not. See, ~. MoodyWilliams, 953 F. Supp. 2d at 682-84; Payne, 812 F. Supp. 2d at 710; Bratcher, 545 F. Supp. 2d at

544-45; Sims-Campbell v. Welch, 769 S.E.2d 643, 648-49 (N.C. Ct. App. 2015); Hogm 79 N.C.
App. at 493-94, 340 S.E.2d at 122-23. Thus, the court grants summary judgment to Deitemeyer on
Howard's liED claim.

m.
The court has reviewed the other pending motions, the responses, and the record. The court
denies as moot Howard's motion to find defendants' motion for summary judgment premature under
Rule 56(d) of the Federal Rules of Civil Procedure [D.E. 46]. The court grants COA's motions to
seal [D.E. 73, 99] andgrantsHoward'smotionsto seal [D.E. 79, 87, 95]. The court denies Howard's
motion to compel subpoena compliance and for sanctions [D.E. 83], denies Howard's motion to
depose two witnesses [D.E. 84], and grants COA's motion for leave to file a brief in excess often
pages [D.E. 89]. The court denies COA's motion to strike Howard's reply to COA's response to
Howard's motion to depose two witnesses [D.E. 97].

IV.
In sum, the court GRANTS defendants' motion for summary judgment [D.E. 38], DENIES
as moot plaintiffs motion under Rule 56(d) [D.E. 46], GRANTS defendants' motions to seal [D.E.
73, 99], GRANTS plaintiffs motions to seal [D.E. 79, 87, 95], DENIES plaintiffs motion to compel
and for sanctions [D.E. 83], DENIES plaintiffs motion to depose two witnesses [D.E. 84],
GRANTS defendants' motion for leave to file a brief in excess often pages [D.E. 89], arid DENIES
26 .

defendants' motion to strike [D.E. 97]. 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.
SO ORDERED. This J,1 day of March 2017.

27