JAMES v. RJ REYNOLDS TOBACCO COMPANY

Filing 50

MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 1/24/2013, that Defendant's Motion for Summary Judgment (Docket Entry 34 ) is GRANTED. (Lloyd, Donna)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JEFFREY JAMES,
Plaintiff,
v.
R.J. REYNOLDS TOBACCO COMPANY,
Defendant.

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1:09CV552

MEMORANDUM OPINION AND ORDER
The instant matter comes before the Court on Defendant’s
Motion for Summary Judgment (Docket Entry 34).
dated Mar. 4, 2011.)1

(See Docket Entry

For the reasons that follow, the Court will

grant the instant Motion.
Background
Plaintiff brought this suit against R.J. Reynolds Tobacco
Company (“RJRT”) for “unlawful employment discrimination on the
basis of Plaintiff’s race, and unlawful retaliation” under 42
U.S.C. § 1981 (“Section 1981”) and 42 U.S.C. § 2000e et seq.
(“Title VII”), as well as for “wrongful termination of Plaintiff”
in violation of the North Carolina Equal Employment Practices Act,
N.C. Gen. Stat. § 143-422.2.

(Docket Entry 1, ¶ 7.)

Plaintiff’s

instant action identifies the challenged employment action as the

1

The parties have consented to disposition of this case by
a United States Magistrate Judge. (Docket Entry 46.)

termination of his employment by RJRT on April 14, 2008.
¶¶ 16-19.)2

(Id.

The following facts are undisputed:

(1) Plaintiff is an African American male (id. ¶ 9) who “was
employed by [RJRT] from in or about September 2001 to on or about
April 14, 2008” (id. ¶ 10);
(2) Plaintiff joined RJRT’s IT Security & Risk Department (“IT
Security”) in 2006 (Docket Entry 36-1 at 7)3 and was responsible
for maintaining the part of the company’s virtual firewall that
“controlled

access

to

the

laptop

computers”

that

sales

representatives used in the field (Docket Entry 45 at 3 (citing
Docket Entry 45-3, ¶ 11));
(3) Plaintiff received a positive performance review in 2006
(see Docket Entry 36-1 at 21-22);
(4) in Plaintiff’s 2007 performance review, his supervisors
indicated that he “[a]lmost [a]chieves [e]xpectations” (Docket
Entry 36-3 at 25; see also Docket Entry 36-1 at 22-23), although

2

The Complaint references RJRT’s earlier decision to
outsource Plaintiff’s position to another company at a later date
(see Docket Entry 1, ¶¶ 11-14) and alleges that Plaintiff “was the
only African American in the [IT Security] group,” as well as “the
only person in [RJRT’s] IT Security group who was advised that his
or her services were no longer needed” (id. ¶ 11). However, those
allegations relate to the circumstances that led Plaintiff to make
an internal complaint with RJRT and thus undergird the retaliation
claim(s) in this case. Fairly read, Plaintiff’s Complaint does not
assert discrimination or retaliation claims other than as to his
firing.
3

All pin citations to Docket Entries refer to pagination
in the CM/ECF footer appended to each document.
2

Plaintiff

believed

he

had

“[done]

more

than

any

of

[his]

counterparts, and [] didn’t see anything in [the review] that
basically said [he] didn’t do or [] didn’t meet . . . [his]
expectations” (Docket Entry 36-1 at 27);
(5) Plaintiff did not “have any reason to think that [the
2007] performance assessment was somehow racially discriminatory
against” him (id. at 21);
(6) “[i]n January of 2008, numerous employees in the IT
Infrastructure department, and [Plaintiff] from IT Security, were
notified

that

their

positions

were

being

eliminated

after

a

transition period, as their functions were being outsourced to EDS”
(Docket Entry 35 at 4; see also Docket Entry 36-1 at 29-30);
(7) although Plaintiff was the only African American employee
whose job was outsourced at that time (see Docket Entry 36-2 at
49), he did not then believe the outsourcing of his job was
racially motivated (Docket Entry 36-1 at 33-34);
(8) Plaintiff was subsequently offered a job at EDS which was
to commence in August of 2008 (Docket Entry 36-3 at 30);
(9) on March 27, 2008, Plaintiff made a change to the part of
the firewall that “controlled the interface between the laptop
computer

in

the

field

and

the

networked

computer

at

RJRT

headquarters” (Docket Entry 45 at 4-5 (citing Docket Entry 45-3,
¶¶ 13 & 14); see also Docket Entry 35 at 5);

3

(10) shortly after Plaintiff made the change, “trade marketing
employees began having problems connecting to the RJRT server
through their laptops” (Docket Entry 35 at 5 (citing Docket Entry
36-2 at 4-7));
(11) later that same day (March 27, 2008), Plaintiff reversed
the change he had made to the firewall, but did not tell anyone
that day about either the change or the reversion (id. at 5-6
(citing Docket Entry 36-2 at 8-9, 10-11));
(12) on March 28, 2008, while connectivity problems continued,
Plaintiff “made a ‘fresh copy’ of the firewall policy as it existed
on the 27th” and, as a result, “the previous versions of the policy
were deleted (including the changes [Plaintiff] made on the 27th)”
(id. at 7 (citing Docket Entry 36-2 at 28-30));
(13) Plaintiff did not inform anyone on March 28, 2008, of any
of the changes he had made (id. (citing Docket Entry 36-2 at 32));
(14)

for

several

days,

various

members

of

IT

Security

attempted to determine the cause of the laptop connection problem
(id. at 7 (citing Docket Entry 36-2 at 37-38; Docket Entry 36-5,
¶ 3)), although an IT Security employee found a tedious “fix” on
March 28, 2008, that could be implemented laptop-by-laptop as
problems arose (id. (citing Docket Entry 36-2 at 37-38));
(15) on April 4, 2008, “Plaintiff complained to [RJRT’s] Human
Resources Department that he was being discriminated against on the
basis of his race” (Docket Entry 1, ¶ 15; see also Docket Entry 35

4

at 8 (“[O]n April 4, 2008, [Plaintiff] met with Marcy Mills . . .
in the Human Resources department because of ‘all of the little
events, all of the little things that were going on.’” (quoting
Docket Entry 36-2 at 44)));
(16) Plaintiff felt discriminated against because, among other
things, a white IT Security employee “was assigned . . . to
troubleshoot the laptop connection issue on March 27th [despite
Plaintiff’s familiarity with the system] and [] [Plaintiff] was the
only African American employee in IT Security in transition to EDS”
(Docket Entry 35 at 8 (citing Docket Entry 36-2 at 45-49));
(17)

on

April

9,

2008,

Plaintiff

met

with

his

direct

supervisor, Garry Blanks, to discuss Plaintiff’s transition to EDS
as well as the laptop problem (see Docket Entry 37-1), at which
time Plaintiff explained his thought process behind undoing the
change he had made on March 27, 2008 (id. at 21-23) and Blanks
stated, “let’s just say people may have listened to you and walked
away with we didn’t change anything” (id. at 23);
(18) on April 11, 2008, Plaintiff met with Ella Long, the
Senior Director Workplace Practices & HR Compliance (Docket Entry
37-2 at 1), and Linda Wood, the Senior Director HR Strategic
Partner (id. at 2), to discuss “the changes he had made to the
firewall policy” (id.), at which time Plaintiff stated he never
used his individual login account and could not recall the password
to that account (see id. at 3; Docket Entry 36-2 at 20-21); and

5

(19) on April 14, 2008, RJRT fired Plaintiff, allegedly
because

he

“did

not

inform

[his]

peers

nor

did

[he]

inform

management about the changes [he] made on March 27, 2008 . . .
[and] [he] misrepresented that [he] did not make any changes to the
Checkpoint Integrity Firewall on multiple occasions when questioned
by management and [his] peers” (Docket Entry 36-3 at 47).
According to RJRT, it was not until April 9, 2008, that
Plaintiff “finally mentioned to Blanks that he did modify the
internal part of the group firewall policy on March 27th . . . .”
(Docket Entry 35 at 10.)

That conversation reportedly took place

after another IT employee “found a version of the firewall policy
dated March 27, 2008 with ‘jamesj2’ as the author.”

(Id. at 9

(citing Docket Entry 36-5, ¶ 4).) As a result, RJRT contends that,
“on or about April 7, 2008, [an IT supervisor, Michael Mazza]
became interested in looking at the firewall policy history to see
what had changed.”

(Id. (citing Docket Entry 36-7 at 2-3 (“After

looking at the log, it showed two things of concern: One, a policy
had been changed around the time when we were having the issues,
and there was a lack of history of prior changes.”)).)

RJRT

further maintains that, on April 9, 2008, Blanks explained to
Plaintiff that Blanks was “looking at the data base from before
[March] 29th” (Docket Entry 37-1 at 19) and said:
I got to go through the policies and be able to prove
everybody [sic] that, look, nothing changed. Here’s a
policy before. Here’s a policy today. Nothing changed.

6

We didn’t touch anything those days that you were having
trouble.
(Id. at 20.)

It was only at that point, according to RJRT, “that

[Plaintiff] finally mentioned to Blanks that [Plaintiff] did modify
the internal part of the group firewall policy on March 27th, but
that it should not have had an impact on anything.”

(Docket Entry

35 at 10 (citing Docket Entry 37-1 at 22-25, 43-50).)
Plaintiff, however, avers that, “[o]n Saturday, March 29, 2008
. . . [Plaintiff] pointed out to [] Blanks the policy change that
[Plaintiff] had made and then reversed on March 27, 2008.” (Docket
Entry 45 at 7 (citing Docket Entry 45-3, ¶ 21).)4

4

Further,

RJRT argues that the statements in Plaintiff’s
Declaration in which he avers that he “pointed out to” Blanks the
changes on March 29, 2008, “should be stricken and not be
considered by this Court, as they contradict [Plaintiff’s] sworn
deposition testimony.”
(Docket Entry 47 at 6).
However, the
deposition testimony RJRT references does not necessarily conflict
with Plaintiff’s Declaration. For example, Plaintiff’s deposition
testimony reflects that, when asked “Did Garry Blanks [on March 29,
2008] ask you if you changed any of the firewall policies?”
Plaintiff replied, “No.
I pointed out to him what was on the
console. I showed him the internal policy, and I told him these
are the changes that I had made. He never asked me. I pointed it
out to him.” (Docket Entry 36-2 at 33.) The questioner thereafter
attempted to clarify exactly what Plaintiff and Blanks were looking
at when Plaintiff “pointed” something out and Plaintiff indicated
they “were not looking at previous versions of the policy,” but
were discussing the making of changes to the existing policy for
the purpose of addressing the laptop issues.
(Id. at 35-36.)
Furthermore, later in the deposition and without reference to a
specific time period, Plaintiff indicated that he did not tell
Blanks about the changes Plaintiff had made and that Blanks would
not know about the changes unless he asked Plaintiff. (See Docket
Entry 48-1 at 55-58.)
Taken in the light most favorable to
Plaintiff, a reasonable factfinder could find that the deposition
testimony did not contradict the statements in Plaintiff’s
Declaration.
Accordingly, the Court will not discount the
7

Plaintiff argues that the conversation on April 9, 2008, between
Plaintiff and Blanks supports Plaintiff’s timeline because “Blanks
acknowledged that [Plaintiff] had told him previously about the
policy changes that he had made, and therefore, that there had not
been any concealment as [RJRT] maintains.”

(Id. at 8-9.)

In

support of that assertion, Plaintiff cites the following language
from the exchange:
[PLAINTIFF]: And the one I changed, that - on the 27th [] BLANKS: The Saturday.
[PLAINTIFF]: No, the 27th was to turn off the - the - to
put it in monitor mode.
[] BLANKS: Uh-huh (yes).
[PLAINTIFF]: And the other thing I thought, well, could
have been an issue, was the - you know, allowed the DNS
or allowed DSEP, but I’m like, well, that shouldn’t be a
problem. But just in case it is, I’ll just switch it
back, you know, if that’s the case. But that’s internal
though. That’s not external. So I couldn’t - you know
. . .
[] BLANKS: Well, let’s just say people may have listened
to you and walked away with we didn’t change anything.
(Id. at 9 (quoting Docket Entry 37-1 at 22-23).)
Summary Judgment Standard
“The [C]ourt shall grant summary judgment 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 of law.”

Declaration, but will
deposition testimony.

read

it
8

in

context

with

Fed. R. Civ.

Plaintiff’s

P. 56(a).

Such a genuine dispute exists if the evidence presented

could lead a reasonable factfinder to return a verdict in favor of
the non-moving party.

Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986). In making this determination, the Court must view
the evidence and any reasonable inferences therefrom in a light
most favorable to the non-moving party.

Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The party moving for summary judgment may discharge its burden
by identifying an absence of evidence to support the non-moving
party’s case.
(1986).

See Celotex Corp. v. Catrett, 477 U.S. 317, 325

The non-moving party then must “set forth specific facts

showing that there is a genuine issue for trial.” Matsushita Elec.
Indus.,

475

original).

U.S.

at

586-87

(citation

omitted)

(emphasis

in

In this regard, the non-moving party must convince the

Court that evidence exists upon which a finder of fact could
properly return a verdict in favor of the non-moving party.
Anderson, 477 U.S. at 252 (citation omitted); see also Francis v.
Booz, Allen & Hamilton, Inc., 452 F.3d 299, 308 (4th Cir. 2006)
(“Mere unsupported speculation is not sufficient to defeat a
summary judgment motion if the undisputed evidence indicates that
the other party should win as a matter of law.”).

9

Proving Racial Discrimination or Retaliation
To establish discrimination or retaliation in employment under
Title VII, Section 1981, or North Carolina law,5 a plaintiff may
proceed “in one of two ways. First, he may present direct evidence
of his superiors’ discriminatory [or retaliatory] intent.

Second,

he may attempt to satisfy the test specified in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973), which allows him to raise
an inference of discriminatory intent by showing that he was
treated worse than similarly situated employees of other [relevant
groups].”

Sterling v. Tenet, 416 F.3d 338, 345 (4th Cir. 2003)

(internal parallel citation omitted).6
that

the

record

contains

direct

Plaintiff does not argue

evidence

that

his

firing

constituted discrimination based on race and/or retaliation for
complaining about discrimination based on race.
45.)

(See Docket Entry

Accordingly, he must satisfy the McDonnell Douglas test,

which first requires proof of a prima facie case.

See Coleman v.

Maryland Ct. of App., 626 F.3d 187, 190 (4th Cir. 2010), aff’d in
other respects, ___ U.S. ___, 131 S. Ct. 1327 (2012).

5

The same standards apply to discrimination and
retaliation claims under either Title VII, Section 1981, or North
Carolina law. See Bryant v. Aiken Reg’l Med. Ctrs. Inc., 333 F.3d
536, 543 (4th Cir. 2003); Hughes v. Bedsole, 48 F.3d 1376, 1383
(4th Cir. 1995); Mallory v. Booth Refrigeration Supply Co., Inc.,
882 F.2d 908, 910 (4th Cir. 1989).
6

Although McDonnell Douglas arose in the discrimination
context, its framework also applies to retaliation claims. See
Hawkins v. Pepsico, Inc., 203 F.3d 274, 281 n.1 (4th Cir. 2000).
10

“[T]he elements of a prima facie case of discrimination
. . . are:

(1) membership in a protected class; (2) satisfactory

job performance; (3) adverse employment action; and (4) different
treatment from similarly situated employees outside the protected
class.”

Id.

. . . are:

“The elements of a prima facie retaliation claim
(1) engagement in a protected activity; (2) adverse

employment action; and (3) a causal link between the protected
activity and the employment action.”

Id.7

“‘If a prima facie case

is presented, the burden shifts to the employer to articulate a
legitimate, nondiscriminatory [or non-retaliatory] reason for the
adverse employment action.’

If the employer meets that 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
[or retaliation].’”

Adams v. Trustees of the Univ. of N.C. -

Wilmington, 640 F.3d 550, 558-59 (4th Cir. 2011) (internal citation
omitted) (quoting Hill v. Lockheed Martin Logistics Mgmt., Inc.,
354 F.3d 277, 285 (4th Cir. 2004) (en banc)); accord Hoyle v.
Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011) (“If a

7

“[P]rotected activity” consists of “[o]pposition activity
[which] encompasses . . . voicing one’s opinions in order to bring
attention to an employer’s discriminatory activities . . . [and]
[p]articipation activity [which] encompasses . . . making a charge,
testifying, or participating in any manner in a Title VII
investigation, proceeding, or hearing.” Kubicko v. Ogden Logistics
Servs., 181 F.3d 544, 551 (4th Cir. 1999) (internal quotation marks
omitted).
11

plaintiff puts forth sufficient evidence to establish a prima facie
case of retaliation and a defendant offers a non-discriminatory
explanation for his termination, the plaintiff bears the burden of
establishing that the employer’s proffered explanation is pretext.”
(internal quotation marks omitted)).
Analysis
Even if the Court assumes that Plaintiff has made out a prima
facie case of racial discrimination and retaliation for reporting
discrimination based on race, RJRT (as it argued in seeking summary
judgment (see Docket Entry 35 at 16-20)) has carried its burden of
producing a non-discriminatory and non-retaliatory reason for
Plaintiff’s firing (see Docket Entry 37-2 at 17-18 (indicating
Plaintiff was fired because he “did not inform [his] peers [or]
management about the changes [he] made on March 27, 2008 . . .[,
he] misrepresented that [he] did not make any changes to the
Checkpoint Integrity Firewall on multiple occasions when questioned
by management and [his] peers . . .[, and] [his] actions seriously
compromised

the

department”)).

integrity

of

the

Information

Technology

As a result, to avoid summary judgment, Plaintiff

must identify competent evidence sufficient to allow a reasonable
factfinder to conclude that RJRT’s stated reason for Plaintiff’s
dismissal

constituted

pretext

for

discrimination

based

on

Plaintiff’s race and/or for retaliation due to his reporting
discrimination based on his race.

12

“[W]hen an employer gives a

legitimate,

non-discriminatory

reason

for

discharging

the

plaintiff, it is not [the court’s] province to decide whether the
reason was wise, fair, or even correct, ultimately, so long as it
truly was the reason for the plaintiff’s termination.”
PepsiCo,

Inc.,

203

F.3d

quotation marks omitted).

274,

279

(4th

Cir.

2000)

Hawkins v.
(internal

Here, Plaintiff has failed to show that

the explanation RJRT gave for his termination did not constitute
its real reason for firing him.
Although the Parties dispute exactly when Plaintiff attempted
to inform Blanks about the changes Plaintiff had made, Plaintiff
has presented no evidence to suggest that Long, the person who
drove the decision to fire Plaintiff (see Docket Entry 35 at 11;
Docket Entry 37-2 at 3-4), in fact believed that Plaintiff informed
Blanks about the changes before April 9, 2008, or even that Blanks
himself understood that Plaintiff had disclosed those changes prior
to April 9, 2008.

Under such circumstances, no material question

of fact as to pretext exists.

See Holder v. City of Raleigh, 867

F.2d 823, 829 (4th Cir. 1989) (“A reason honestly described but
poorly founded is not a pretext, as that term is used in the law of
discrimination.”); accord Price v. Thompson, 380 F.3d 209, 214 n.1
(4th Cir. 2004) (“We note that mere mistakes of fact are not
evidence of unlawful discrimination.”).
Plaintiff argues that “[t]he fact that [] Long says that
[Plaintiff] [admitted that he did not tell anyone about the changes

13

until April 9, 2008] is insufficient to make that an undisputed
fact.”

(Docket Entry 45 at 16-17.)

However, the question of when

Plaintiff notified Blanks about changes Plaintiff made to the
firewall is not the issue in a pretext analysis; rather, the issue
is what the decisionmaker believed or understood at the time of the
decision.

See, e.g., Hawkins, 203 F.3d at 279 (affirming summary

judgment for employer where plaintiff, who was discharged for poor
performance,

“fail[ed]

.

.

.

to

supply

evidence

that

[decisionmaker] actually believed [plaintiff’s] performance was
good”); Jordan v. Summers, 205 F.3d 337, 344 (7th Cir. 2000)
(“Pretext is a lie, not merely a mistake.”). Long averred that “it
was determined that [Plaintiff] had misled management and concealed
changes he made to the firewall policy.” (Docket Entry 37-2 at 3.)
Although some question may exist as to the soundness of her
conclusion, Plaintiff has failed to present any evidence indicating
that

Long

did

not

actually

hold

that

view

at

the

time

of

Plaintiff’s firing.
Neither has Plaintiff shown that Blanks understood that, in
the immediate aftermath of the laptop problem, Plaintiff had
identified the changes he made.

Moreover, Plaintiff himself

admitted that, in the conversation between Plaintiff and Blanks on
April 9, 2008, “Blanks allowed that the root of the problem
[regarding

Plaintiff’s

prior

communications]

was

.

.

.

that

unidentified ‘people’ - perhaps [] Blanks himself - had walked away

14

with the wrong impression (‘. . . people may have listened to you
and walked away with we didn’t change anything.’)”

(Docket Entry

45 at 9 (emphasis added) (quoting Docket Entry 37-1 at 23); see
also id. at 16 (referencing same in context of pretext).)

The

transcript of Plaintiff’s conversation with Blanks on April 9,
2008, shows, at most, that Blanks may have admitted that, at an
earlier date, Plaintiff may have attempted to make some reference
to changes he had made, but that Blanks still did not perceive that
Plaintiff had done so.

(See Docket Entry 37-1 at 22-23.)

Again,

whether or not, prior to April 9, 2008, Plaintiff in fact attempted
to inform Blanks about the changes Plaintiff made is not the issue.
Pretext analysis turns on whether, at the time of Plaintiff’s
firing,

Blanks

actually

understood

that

Plaintiff

timely

and

properly notified Blanks of changes Plaintiff made to the system.
The conversation between Blanks and Plaintiff on April 9, 2008,
does not prove that point.
Nor

does

Plaintiff’s

deposition

testimony

concerning

an

interaction he had with Blanks on Saturday, March 29, 2008,
establish that Blanks then knew about the changes Plaintiff made.
In that testimony, Plaintiff asserted the following: “I pointed out
to [Blanks] what was on the console.

I showed him the internal

policy, and I told him these are the changes I had made.
asked me.

I pointed it out to him.”

He never

(Docket Entry 36-2 at 33.)

Although Plaintiff argues that this testimony indicates he told

15

Blanks about the changes on March 29, 2008 (see Docket Entry 45 at
7),

it

does

not

show

that

Blanks

understood

that,

by

such

“point[ing] out,” Plaintiff had reported making changes to the
firewall.

Furthermore, as Plaintiff continued to explain the

circumstances of this interaction in the deposition, it became
apparent that he had “pointed out” the firewall policy as it
existed after Plaintiff made the fresh copy on March 28, 2008.
(See Docket Entry 36-2 at 233 (“Q. You pointed it out to him on the
29th?

A. On the 29th because we were inside, and he wanted me to

change the rule on the policy. Q. I thought when you created the
fresh copy on the 28th, it deleted all of the previous versions?
A.

We’re

inside

that

policy.”).)

The

record,

setting

out

Plaintiff’s own words, thus shows that Plaintiff did not “point
out” changes he had made on March 27, 2008, no matter what he may
have thought he conveyed.
Further, apart from her concern that Plaintiff waited over a
week to tell anyone about his changes to the firewall, Long
insisted on the termination of Plaintiff’s employment (rather than
reassignment) based on her view that:

(1) Plaintiff had made the

changes without any direction to do so from his supervisors (Docket
Entry 37-2 at 2-3); (2) he created a fresh copy of the firewall
policy, again without telling his supervisors, which erased the
firewall history (id. at 3); and (3) he apparently lied to Long
when he said he never used his individual login, yet the restored

16

firewall history showed he used his individual login to make the
first change on March 27, 2008, a fact Long found “particularly
troubling”

(id.).

These

allegation of pretext.

unrefuted

circumstances

defeat

any

See Henson v. Liggett Grp., Inc., 61 F.3d

270, 277 (4th Cir. 1995) (“We have recognized the importance of
giving an employer the latitude and autonomy to make business
decisions . . . .”); see also Bacchus v. Tubular Textile LLC, No.
1:01CV00621, 2003 WL 21796550, at *6 (M.D.N.C. Mar. 19, 2003)
(unpublished)

(“Employers

retain

the

right

to

make

business

decisions, even poor or inaccurate ones, so long as they do not
violate the law.” (citing Henson, 61 F.3d at 277)).
In the pretext discussion in Plaintiff’s Response, he alleges
that “there is ample record evidence from which a fact-finder
reasonably could find that [RJRT] lied to the [Equal Employment
Opportunity Commission (“EEOC”)], and/or during discovery, and/or
now to the Court about the material fact of who decided to
terminate [Plaintiff].”

(Docket Entry 45 at 18.)

In this regard,

Plaintiff asserts that RJRT told the EEOC that “IT management”
decided to fire him (id. at 17), that RJRT then told Plaintiff in
its Answers to Plaintiff’s First Interrogatories that Blanks,
Mazza,

Long,

and

Wood

“collaboratively

agreed”

to

terminate

Plaintiff’s employment (id. at 18), and that RJRT now represents to
the Court that Long made the ultimate decision (id.).

17

As an initial matter, in the case Plaintiff cites in support
of this argument, E.E.O.C. v. Sears Roebuck and Co., 243 F.3d 846
(4th Cir. 2001), the Fourth Circuit noted that “the fact that [the
employer] has offered different justifications at different times
for [the adverse employment action] is, in and of itself, probative
of pretext,” id. at 852-53 (emphasis added).
may

not

“seek

to

expose

[an

employer’s

However, a plaintiff
non-discriminatory]

rationale as pretextual by focusing on minor discrepancies that do
not cast doubt on the explanation’s validity, or by raising points
that are wholly irrelevant to it.
‘genuine’

dispute,

the

latter

The former would not create a

would

fail

to

be

‘material.’”

Holland v. Washington Homes, Inc., 487 F.3d 208, 216 (4th Cir.
2007) (internal quotation marks omitted).

The fact that an

employer’s identification of the decisionmaker varied is not the
same as altering the justification for the decision.

Plaintiff’s

argument in this regard thus does not cast doubt on the validity of
RJRT’s

non-discriminatory

and

non-retaliatory

explanation

for

Plaintiff’s firing.
Further,

the

record

does

not

support

Plaintiff’s

characterization of RJRT’s statements about the decisionmaker.
First, in its response to the EEOC, RJRT indicated that both “IT
management” and “HR” participated in the “investigation” into
Plaintiff’s alleged misconduct.

(Docket Entry 45-2 at 10-11.)

Further, RJRT stated that “[Plaintiff] was called into a meeting,

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and on April 14, 2008, he was terminated for Violation of Company
Policy - HR Policies and Practices 1.03, paragraph 3 - Misconduct.”
(Id. at 11.)

This statement does not, as Plaintiff suggests (see

Docket Entry 45 at 17-18), assert that IT management decided to
fire Plaintiff.
Next, in RJRT’s Answers to Plaintiff’s First Interrogatories,
RJRT reported that Blanks, Mazza, Long, and Wood “collaboratively
agreed . . . that termination of [Plaintiff’s] employment was
appropriate.” (Docket Entry 36-4 at 7.) Comparatively, in support
of its instant Motion, RJRT asserts that, “[w]hile Mazza and Blanks
recommended that [Plaintiff] be removed from his position within IT
Security and possibly assigned elsewhere, Long determined that the
termination of [Plaintiff’s] employment was the more appropriate
discipline in light of his conduct.”

(Docket Entry 35 at 11.)

These two characterizations do not conflict with each other or with
the EEOC statement.
Simply

put,

“collaboratively

unanimity throughout the process.

agreed”

does

not

signify

Although Mazza and Blanks

initially recommended reassignment, Mazza testified that, when Long
and Wood asked them, “don’t you think the right thing to do is to
terminate [Plaintiff],” Mazza and Blanks “probably just nodded.”
(Docket Entry 48-3 at 23; see also Docket Entry 37-2 at 3-4
(setting forth Long’s sworn statement that Blanks and Mazza “had
recommended to [Long] that [Plaintiff] be removed from his position

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within the IT Security & Risk department [but that] [u]ltimately
[Long] determined that termination of [Plaintiff’s] employment was
the more appropriate discipline and that he could not simply be
assigned to another department, given his conduct”).)
Mazza and Blanks carred out the actual firing.
36-3 at 11-13; Docket Entry 48-3 at 25.)
evidence

to

call

this

account

into

Moreover,

(See Docket Entry

Plaintiff has cited no

question.

Under

these

circumstances, the record establishes that Blanks, Mazza, Long, and
Wood all took part in a discussion about Plaintiff’s future, that
they came into the discussion with different recommendations, and
that they ultimately all acquiesced to the decision to fire him.8
In sum, the evidence, viewed in a light most favorable to
Plaintiff, would not permit a reasonable factfinder to determine
that the reasons RJRT gave for firing Plaintiff represented pretext
for race discrimination and/or retaliation.
Conclusion
RJRT has provided a non-discriminatory and non-retaliatory
reason for its firing of Plaintiff. Plaintiff, in turn, has failed

8

In addition, “[w]hen the hirer and the firer are the same
individual, there is a powerful inference . . . that discrimination
did not motivate the employer . . . .” Proud v. Stone, 945 F.2d
796, 798 (4th Cir. 1991).
In the instant case, Blanks hired
Plaintiff (see Docket Entry 36-1 at 5) and gave him a positive
review for his work in 2006 (id. at 21-22). Accordingly, a strong
inference exists that, whatever role Blanks played in the decision
to fire Plaintiff, discriminatory animus did not motivate him. See
Proud, 945 F.2d at 798. Nor has Plaintiff come forward with any
evidence to suggest that Long, Wood, or Mazza exhibited any racial
bias. (See Docket Entry 45 at 1-20.)
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to show that record evidence raises a material question of fact
regarding whether RJRT’s explanation constitutes pretext for racial
discrimination and/or retaliation.
IT IS THEREFORE ORDERED that Defendant’s Motion for Summary
Judgment (Docket Entry 34) is GRANTED.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
January 24, 2013

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