POPE v. VILSACK

Filing 30

MEMORANDUM OPINION AND ORDER signed by JUDGE JAMES A. BEATY, JR on 06/07/2013; that Plaintiff's Motion to Strike is DENIED without prejudice to the parties raising specific objections at trial as necessary. FURTHER that Defendant 's Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART, as set forth herein. Specifically, Defendant's Motion for Summary Judgment is GRANTED as to Plaintiff's retaliation claim, and such claim is hereby DISMISSED. However, Defendant's Motion for Summary Judgment is DENIED as to Plaintiff's gender discrimination claim. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RHONDA R. POPE,

)
)
Plaintiff,
)
v.
)
)
THOMAS J. VILSACK,
)
Secretary of Agriculture for the United States
)
Department of Agriculture,
)
)
Defendant.
)
______________________________________ )

1:11CV946

MEMORANDUM OPINION AND ORDER
BEATY, District Judge.

This matter is currently before this Court on a Motion for Summary Judgment [Doc.
#18] filed by Defendant Thomas J. Vilsack, Secretary of Agriculture for the United States
Department of Agriculture (“Defendant”). Also before the Court is a Motion to Strike
[Doc.#23] filed by Plaintiff Rhonda R. Pope (“Plaintiff”) seeking to strike certain portions of
the exhibits attached to Defendant’s Motion for Summary Judgment. For the reasons set forth
below, the Court will deny Plaintiff’s Motion to Strike and will grant in part and deny in part
Defendant’s Motion for Summary Judgment.
I.

FACTUAL AND PROCEDURAL BACKGROUND
From December of 1990 to September of 2005, Plaintiff worked for the United States

Department of Agriculture (“USDA”) as a program technician for the USDA’s Farm Service
Agency (“FSA”). In September of 2005, Plaintiff was accepted to the USDA’s training program
and became a County Operations Trainee (“COT”). The nine-month training program was
designed to train and certify COTs to serve in the managerial position of County Executive

Director (“CED”) for the FSA. CEDs work directly with Farmer County Committees to
manage, implement, administer and facilitate FSA programs and services at the local level. The
Farmer County Committees select the CEDs for vacant positions in their respective counties.
Beginning in April of 2006, Plaintiff was assigned to work in the Caswell County FSA
office as a COT. Emmett Rogers, the then-CED of Caswell County, served as Plaintiff’s COT
trainer while Plaintiff was working in the Caswell County office. In June of 2006, Plaintiff
completed her COT training program and was certified as a COT. Plaintiff achieved an overall
rating of 95.1% across various rated programs and received an average rating of “superior” on
her training reviews. As a certified COT, Plaintiff was eligible for promotion to the position of
CED in North Carolina and was required to apply for every CED position that came available
in North Carolina until she was hired as a CED. When Plaintiff learned that Emmett Rogers
had been hired to serve as CED of Pamlico County, Plaintiff decided to focus her efforts on
the soon-to-be vacant CED position in Caswell County. Plaintiff contends that the Caswell
County CED position was “ideal” for her because she was raised in Caswell County, her parents
still lived there, and the County was a reasonable commute from her home.1
In view of the upcoming vacancy for the Caswell County CED position, Plaintiff visited
Walter (“Sam”) Butler, the vice-chair of the Farmer County Committee of Caswell County (“the

1

Plaintiff also applied for all other vacant CED positions, as required, but was not hired
for another position prior to the advertisement of the CED vacancy in Caswell County. In
August of 2007, after the events giving rise to the present action, Plaintiff was hired as the CED
of Ashe/Alleghany County. Thereafter, from October of 2007 to January of 2008, Plaintiff
worked as CED of Mecklenburg County, Virginia. Plaintiff resigned from the USDA in January
of 2008 to begin work with North Carolina Farm Bureau Insurance because it was closer to her
home. (Pl.’s Depo. 25:2-26:16, [Doc. #19-2]).
2

Committee”). Plaintiff had known Mr. Butler since she was a child, as Mr. Butler’s family
previous lived on Plaintiff’s family’s farm in Caswell County. Plaintiff wanted to meet with Mr.
Butler “to express her interest in the Caswell County CED position and receive any advice [Mr.]
Butler may have regarding her interest.” (Pl.’s Summ. J. Resp. at 4, [Doc. #22]). During the
meeting, Plaintiff contends that Mr. Butler told Plaintiff that she would be “‘good for the CED
job’” given her experience and background. (Pl.’s Summ. J. Resp. at 4, [Doc. #22]). However,
Plaintiff further contends that Mr. Butler then told Plaintiff that the Committee was “‘fearful
of hiring another woman’” as CED of Caswell County due to tensions and problems in the past
between an all female staff and a female CED. (Pl.’s Summ. J. Resp. at 5, [Doc. #22]). Plaintiff
contends that Mr. Butler further told her that being female would be difficult for Plaintiff to
overcome with the Committee in Caswell County. (Pl.’s Depo. 51:12-19, [Doc. #19-2]).
On August 22, 2006, prior to advertising the vacancy for the Caswell County CED
position, the Committee held a meeting and received Caswell County staff members Jill Rudisill,
Beth Ware, and Tracey Walker. According to Plaintiff, Ms. Rudisill, Ms. Ware, and Ms. Walker
“spread gossip about Plaintiff to the members of the Committee regarding the two month work
period that Plaintiff spent in Caswell County” as a COT. (Pl.’s Summ. J. Resp. at 5, [Doc. #22]).
Plaintiff was not present at the Committee meeting on August 22, 2006, nor was she provided
any opportunity to defend against or comment on the discussion held therein at any time
relevant to this case. Per the Minutes of the Committee meeting, in addition to hearing the staff
members “concerns” about Plaintiff, “[t]he pros and cons of advertising vs. not advertising and
statewide vs. nationwide advertising for the vacant [CED] position were discussed. The

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[Committee] decided they would like to have a choice of candidates and wanted the vacant CED
position in Caswell County to be advertised nationwide.” (Ex. GE-5e to Pl.’s Summ. J. Resp.
at 66, [Doc. #22-7]).2
On September 21, 2006, the USDA posted, nationwide, an official vacancy
announcement for the Caswell County CED position. Three people submitted applications for
the position: Beverly Clark (female), Billy Merritt (male), and Plaintiff. Soon after the vacancy
closed to applicants, the state executive director deemed Ms. Clark and Mr. Merritt ineligible for
consideration for failure to file a performance appraisal as part of their respective applications.
As a result, Plaintiff was the only eligible candidate for the Caswell County CED position. On
the morning of November 3, 2006, the day of Plaintiff’s scheduled interview, the Committee
met to discuss the vacant CED position, the number of applicants for the position, and the
interview process. (Ex. GE-5e to Pl.’s Summ. J. Resp. at 67, [Doc. #22-7]). Thereafter, the
Committee interviewed Plaintiff for forty-five minutes. After Plaintiff’s interview concluded,
the Committee met again to discuss the interview. According to the Committee meeting
Minutes, the Committee “was adamant that they wanted a choice of candidates and that they
did not want to be forced to hire the only candidate that had a complete application.” (Ex. GE5e to Pl.’s Summ. J. Resp. at 67, [Doc. #22-7]). The Committee then filled out the interview
matrix used to evaluate candidates “based on their impression of [Plaintiff’s] responses to the
interview questions.” (Ex. GE-5e to Pl.’s Summ. J. Resp. at 67, [Doc. #22-7]).

2

The Court will refer the page numbers provided by the Clerk’s Office when referring
to this exhibit, rather than the page numbers set forth on the original documents.
4

On November 8, 2006, Plaintiff received a letter informing her that she was not selected
for the vacant CED position, that the vacancy was going to be re-advertised, and that she would
not need to re-apply for the position to receive consideration following re-advertisement of the
vacancy. The USDA re-advertised the Caswell County CED position nationally a second time
on November 13, 2006. In addition to Plaintiff, two other candidates submitted applications:
Billy Merritt (male), the same candidate who had applied in response to the first advertisement,
and John Poumar (male). Mr. Poumar was deemed ineligible for consideration, leaving Plaintiff
and Mr. Merritt as the only qualified candidates. The Committee interviewed Plaintiff a second
time. The interview consisted of asking and answering twelve questions different from those
asked during the first interview, and again lasted approximately forty-five minutes. Plaintiff
contends that the Committee did not accept her letter of reference during the interview process.
After Plaintiff’s interview concluded, the Committee conducted the interview of Mr. Merritt
over the phone, asking the same twelve questions as were asked of Plaintiff. Mr. Merritt’s
interview lasted approximately ten (10) minutes. Thereafter, the Committee selected Mr. Merritt
to fill the vacant Caswell County CED position and informed Plaintiff that she had not been
selected. When Plaintiff inquired about why she was not selected for the Caswell County CED
position, District Director Robin Hampton, who was present for both candidates’ interviews,
told Plaintiff that “the Committee chair is a ‘very direct, brief, and to-the-point person’ and that
Plaintiff had provided ‘too much information when answering questions about her qualifications
for the job.’” (Pl.’s Summ. J. Resp. at 10, [Doc. #22]; Ex. 14 to Decl. of Robin Hampton, [Doc.
#19-29]).

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On January 22, 2007, after consulting with EEO counselors following each of her two
interviews for the Caswell County CED position, Plaintiff received a notice of right to file a
formal Complaint of discrimination against Defendant. Plaintiff timely filed such Complaint
on January 26, 2007, raising claims of gender discrimination and retaliation. Thereafter, on
September 4, 2009, the USDA issued its Final Agency Decision pertaining to Plaintiff’s formal
discrimination Complaint. In its Final Agency Decision, the USDA, held that “the weight of
the evidence indicates that discrimination under a mixed motive analysis occurred with regard
to the [Plaintiff’s] non-selection, based on sex.” (Final Agency Decision at 24, [Doc. #22-5]).3
The USDA further held that “[t]he weight of the evidence indicates that discrimination did not
occur based on reprisal.” (Final Agency Decision at 24, [Doc. #22-5]). Based on its decision,
the USDA awarded Plaintiff attorney’s fees and costs and issued injunctive relief against
Defendant. The USDA did not, however, order that Defendant hire Plaintiff for or promote
Plaintiff to any employment position. Plaintiff appealed the Final Agency Decision to the
EEOC’s Office of Federal Operations (“OFO”) on October 14, 2009. The OFO issued its final
decision on August 4, 2011, affirming the USDA’s Final Agency Decision. Thereafter, Plaintiff
filed her Complaint in this case alleging both gender discrimination and retaliation pursuant to
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended, and seeking, in
part, “a position that is within her career path and substantially similar to that which she had
applied.” (Pl.’s Summ. J. Resp. at 2, [Doc. #22]).

3

The Court refers to the page numbers provided on the original document rather than
the page numbers assigned to the document by the Clerk’s Office.
6

Defendant now moves for Summary Judgment contending that there are no genuine
issues of material fact as to any of Plaintiff’s claims and, therefore, Defendant is entitled to
judgment as a matter of law. In addition to filing a Response to Defendant’s Motion for
Summary Judgment, Plaintiff has filed a Motion to Strike certain portions of the exhibits
attached to Defendant’s Motion for Summary Judgment. Because resolution of Plaintiff’s
Motion to Strike bears on what evidence the Court may consider in resolving Defendant’s
Motion for Summary Judgment, the Court will address Plaintiff’s Motion to Strike first.
II.

PLAINTIFF’S MOTION TO STRIKE

Plaintiff moves to strike certain portions of the exhibits, including various Declarations,
attached to Defendant’s Motion for Summary Judgment. As set forth in Rule 56 of the Federal
Rules of Civil Procedure, affidavits or declarations “must be made on personal knowledge, set
out facts that would be admissible in evidence, and show that the affiant or declarant is
competent to testify to the matters stated.” Fed. R. Civ. P. 56(c)(4). Plaintiff challenges specific
portions of the Declarations of District Director Robin Hampton, State Executive Director
Keith Weatherly, Committee members Irvin Thompson, Helen Lunsford, and Walter (“Sam”)
Butler, and Caswell County staff members Jill Rudisill and Beth Ware. In addition, Plaintiff
challenges portions of the Committee meeting Minutes for August 22, 2006. Plaintiff’s
challenges in its Motion to Strike generally fall within two categories: (1) that statements within
the exhibits constitute inadmissible hearsay; or (2) that statements within the exhibits are not
based on personal knowledge. For purposes of this Memorandum Opinion and Order, the
Court will discuss and rule on each of the general categories Plaintiff has raised as being

7

objectionable at this stage, but will leave open the opportunity for the parties to raise specific
objections for the Court’s consideration at trial as necessary.4
With regard to Plaintiff’s hearsay challenge, Plaintiff contends that statements made to
the Committee or to Robin Hampton regarding Plaintiff’s prior job performance constitute
inadmissible hearsay and should not be considered by the Court. Plaintiff’s challenge in this
regard focuses on the Declarants’ references to the statements made by female staff members
Jill Rudisill, Beth Ware, and Tracey Walker at the Committee meeting held on August 22, 2006,
and statements about Plaintiff by USDA employees to Robin Hampton at various times prior
to the interview process for the Caswell County CED position. In response to Plaintiff’s
hearsay challenges, Defendant contends that the challenged statements are offered not for the
truth of the matter asserted, but rather to show the state of mind of the Committee members
during the selection process. In other words, Defendant contends that it offers the challenged
statements to show what effect hearing those statements had on the listener.
To the extent that Defendant contends it is not offering the statements made regarding
Plaintiff’s prior work performance for the truth of the matter asserted, but rather to show what
effect, if any, such statements had on the person who heard them, the challenged statements
would not constitute hearsay under the Federal Rules of Evidence. See Fed. R. Evid. 801;

4

The Court notes that this Memorandum Opinion and Order was entered on the docket
prior to the last day on which Plaintiff could have filed a Reply brief to her Motion to Strike.
Nevertheless, to the extent that such Reply would have addressed Plaintiff’s objections to
Defendant’s Response, the Court concludes that it still would deny Plaintiff’s Motion to Strike
for the reasons set forth herein. However, as noted throughout this Memorandum Opinion and
Order, Plaintiff remains free to re-raise the objections set forth in her Motion to Strike, and any
that she would have raised in a Reply brief, at trial for the Court’s consideration at that time.
8

United States v. Guerrero-Damian, 241 Fed. App’x. 171, 173 (4th Cir. 2007) (“A statement is
not hearsay if it is offered to prove knowledge, or show the effect on the listener or listener’s
state of mind.”). Therefore, the Court will not strike the challenged statements at this stage and
will consider the statements, and references made to the statements, for the limited purpose
offered by Defendant. However, as noted above, if it is necessary during trial, the parties may
raise specific objections for the Court’s consideration at that time.
Plaintiff also challenges portions of the Declarations on the grounds that the Declarants
lack personal knowledge of the facts set forth therein. For example, Plaintiff contends that
none of the Declarant’s have personal knowledge of Plaintiff’s prior work performance. Instead,
Plaintiff contends that the Declarants base their Declarations only on what they heard about
Plaintiff’s prior work history from third parties. Although Plaintiff may be correct that the
Committee members may not have observed Plaintiff in her work setting, the evidence on the
record shows that Ms. Hampton, and each of the Committee members were present at the
meeting on August 22, 2006, where staff members made statements about Plaintiff’s work
performance. Therefore, the evidence shows that each person present had personal knowledge
of any statements made or discussions had at that meeting. Moreover, as noted above, to the
extent that references to the challenged statements are being offered to show the effect on the
listener and not for the truth of the matter asserted, no present hearsay problem exists.
Plaintiff further challenges references by individual Committee members to the
motivations or beliefs of the Committee as a whole. Plaintiff contends that individual
Committee members can do no more than speculate or offer conclusory statements about the

9

true motivations or beliefs of the Committee as a whole. In this regard, the Court notes that
the challenged statements appear to involve perceptions or opinions of individual Committee
members in the context of the decision-making process used by the entire Committee.
Therefore, to the extent that any Committee member participated in discussions or the decision
stemming from those discussions, as a part of the Committee, that individual Committee
member would have personal knowledge of the Committee’s motivations throughout the
decision-making process.
In addition, Plaintiff challenges Ms. Hampton’s and Mr. Weatherly’s statements regarding
the motivations or beliefs of the Committee. In that regard, Plaintiff contends that because Ms.
Hampton and Mr. Weatherly are not Committee members, they cannot speak competently to
the true beliefs or motivations of the Committee. However, the evidence shows that Ms.
Hampton was present at all Committee meetings and was present during all interviews and
follow-up discussions relevant to this case. In addition, the evidence shows that the Committee
contacted Mr. Weatherly, as the State Executive Director, to discuss the interview procedures
and the Committee’s perceptions at the time. Therefore, to the extent that Ms. Hampton and
Mr. Weatherly either participated in or provided counsel during the interview and decisionmaking process, they would have personal knowledge of the Committee’s motivations during
the decision-making process. However, the Court notes that to the extent that any of the
challenged statements might be construed as legal conclusions, the Court, in deciding the
motion for summary judgment, will draw its own conclusions without being swayed by any
potentially impermissible material. Therefore, based on the foregoing, the Court will deny

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Plaintiff’s Motion to Strike at this time, without prejudice to the parties raising specific
objections at trial as necessary.
III.

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
A.

Standard of Review

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, the court shall grant
summary judgment when there exists no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Zahodnick v. Int’l Bus. Machs.
Corp., 135 F.3d 911, 913 (4th Cir. 1997). The party seeking summary judgment bears the
burden of initially coming forward and demonstrating the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986).
Once the moving party has met its burden, the non-moving party must then affirmatively
demonstrate that there is a genuine issue of material fact which requires trial. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1349, 89 L. Ed. 2d 538
(1986). When making a summary judgment determination, the court must view the evidence
and all justifiable inferences from the evidence in the light most favorable to the non-moving
party. Zahodnick, 135 F.3d at 913. Moreover, the Court should not grant a motion for
summary judgment “‘unless the entire record shows a right to judgment with such clarity as to
leave no room for controversy and establishes affirmatively that the adverse party cannot prevail
under any circumstances.’” Campbell v. Hewitt, Coleman & Assocs., Inc., 21 F.3d 52, 55 (4th
Cir. 1994) (quoting Phoenix Sav. & Loan, Inc. v. Aetna Casualty & Sur. Co., 381 F.2d 245, 249
(4th Cir. 1967)). Nevertheless, a mere scintilla of evidence is insufficient to withstand a motion

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for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505,
2512, 91 L. Ed. 2d 202 (1986). Instead, there must be evidence “on which the jury could
reasonably find for the plaintiff.” Id. With this standard in mind, the Court will address the
merits of Plaintiff’s gender discrimination and retaliation claims to determine whether Defendant
is entitled to judgment as a matter of law on either claim.

B.

Plaintiff’s Gender Discrimination Claim

Title VII provides that “[a]ll personnel actions affecting employees or applicants for
employment . . . shall be made free from any discrimination based on race, color, religion, sex,
or national origin.” 42 U.S.C. § 2000e-16. Plaintiff alleges that Defendant engaged in gender
discrimination in violation of Title VII when Defendant failed to promote Plaintiff, on two
separate occasions, to the position of Caswell County CED. A plaintiff may establish a claim
of intentional discrimination sufficient to avoid summary judgment under two frameworks.
First, a plaintiff may proceed under a mixed-motive framework, in which “it is sufficient for the
[plaintiff] to demonstrate [through direct or circumstantial evidence] that the employer was
motivated to take the adverse employment action by both permissible and forbidden reasons.”
Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284 (4th Cir. 2004). A plaintiff
may also proceed under the McDonnell Douglas5 pretext framework, in which a plaintiff “after
establishing a prima facie case of discrimination, demonstrates that the employer’s proffered
permissible reason for taking an adverse employment action is actually pretext for

5

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668

(1973).
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discrimination.” Hill, 354 F.3d at 285. “Regardless of the type of evidence offered by Plaintiff
as support for her discrimination claim (direct, circumstantial, or evidence of pretext), or
whether she proceeds under a mixed-motive or single-motive theory, ‘[t]he ultimate question
in every employment discrimination case involving a claim of disparate treatment is whether the
plaintiff was the victim of intentional discrimination.’” Id. at 286 (quoting Reeves v. Sanderson
Plumbing Prod., Inc., 530 U.S. 133, 153, 120 S. Ct. 2097, 2111, 147 L. Ed. 2d 105 (2000)). The
Court will address the merits of Plaintiff’s gender discrimination claim under both frameworks.
1.

Mixed-Motive Framework

As noted above, “an unlawful employment practice is established when the complaining
party demonstrates that race, color, religion, sex, or national origin was a motivating factor for
any employment practice, even though other factors also motivated the practice.” 42 U.S.C.
§ 2000e-2(m). To prevail under this mixed-motive analysis, “the employee does not have to
demonstrate that the prohibited discrimination was the sole motivating factor . . . so long as it
was a motivating factor.” Fisher v. Maryland Dep’t of Pub. Safety & Corr. Serv., 461 Fed.
App’x 242, 243 (4th Cir. 2012) (citing Hill, 354 F.3d at 284). However, “[t]he protected trait
‘must have actually played a role in the employer’s decisionmaking process and had a
determinative influence on the outcome.’” Hill, 354 F.3d at 286 (quoting Reeves, 530 U.S. at
141, 120 S. Ct. at 2105).
In the present case, the Court finds that there exists a genuine issue of material fact as
to whether Defendant was motived, at least in part, by Plaintiff’s gender in its decision not to
promote Plaintiff to the Caswell County CED position. In so finding, the Court notes that

13

Plaintiff has presented evidence of her conversation with Mr. Butler, wherein Mr. Butler
purportedly told Plaintiff that, based on prior negative experiences, the Committee was
concerned about hiring a female CED to supervise an all female staff. In addition, Plaintiff has
presented evidence that the Committee entertained purportedly negative commentary about
Plaintiff’s prior work history from female staff members in a Committee meeting held prior to
the advertisement of the Caswell County CED vacancy, during which Plaintiff was not present.
Regardless of the content of that discussion, the evidence shows that the Committee neither
informed Plaintiff of the statements made nor afforded her an opportunity to defend against
those statements. In addition, the evidence shows that the Committee met to discuss their
purported concern about having only one candidate, that is, Plaintiff, just prior to and
immediately after Plaintiff’s first interview, even though Defendant admits that Plaintiff was a
qualified candidate for the Caswell County CED position.
Furthermore, the evidence shows that the Committee hired Billy Merritt, a male
applicant who, only two months prior, had been disqualified for failure to properly file his
application. The evidence further shows that the Committee hired Mr. Merritt after only a tenminute phone interview, including the time it took to read each of the twelve questions asked.
Moreover, Plaintiff presented evidence that although the Committee praised Mr. Merritt for his
letter of reference, as a proffered legitimate reason for hiring Mr. Merritt over Plaintiff, the
Committee did not accept Plaintiff’s letter of reference during the interview process. Such
evidence shows, at the very least, that Plaintiff and Mr. Merritt were not treated equally during
the selection process, and the Court concludes that a genuine issue of material fact exists as to

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whether Plaintiff’s gender was, at least in part, a motivating factor in Defendant’s failure to
promote her to CED of Caswell County.
2.

Pretext Framework

In addition to showing a genuine issue of material fact under a mixed- motive analysis,
the Court finds that there exists a genuine issue of material fact precluding summary judgment
under the pretext framework. To demonstrate a prima facie case of discriminatory failure to
promote under the McDonnell Douglas pretext framework, Plaintiff initially carries the burden
of showing that (1) she is a member of a protected class; (2) there was an open position for
which she applied; (3) she was qualified for the position in question; and (4) she was rejected
under circumstances that give rise to an inference of discrimination. Williams v. Giant Food
Inc., 370 F.3d 423, 430 & n.5 (4th Cir. 2004). The burden of establishing a prima facie case is
not an onerous one. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct.
1089, 1094, 67 L. Ed. 2d 207 (1981). If Plaintiff makes out a prima facie case, “the burden shifts
to the employer to articulate a legitimate, nondiscriminatory reason” for the challenged
employment action. Hill, 354 F.3d at 285. If the employer meets its burden in this regard, “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.’” Id.
(quoting Reeves, 530 U.S. at 143, 120 S. Ct. at 2106).
In the present case, Plaintiff has presented sufficient evidence to make out a prima facie
case of discrimination. Specifically, as to the first two elements, Plaintiff has presented evidence
that she is a female, and that she applied for the vacant position of CED of Caswell County.

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Furthermore, as to the third element, Plaintiff has presented evidence, and Defendant appears
to admit, that Plaintiff was qualified for the CED position. To satisfy the fourth element, that
is, that Plaintiff was rejected under circumstances giving rise to an inference of discrimination,
Plaintiff need only show that the position was filled by an applicant not in the protected class,
that is, a male. See Carter v. Ball, 33 F.3d 450, 458 (4th Cir. 1994); Johnson v. City of Charlotte,
229 F. Supp. 2d 488, 493 (W.D.N.C. 2002). The evidence shows that Defendant selected Billy
Merritt, a male, to fill the vacant Caswell County CED position.
Once Plaintiff has made a prima facie case of discrimination, the burden shifts to
Defendant to articulate a legitimate, nondiscriminatory reason for its decision not to promote
Plaintiff. In that regard, Defendant contends that it did not select Plaintiff for the position of
Caswell County CED, and instead hired Mr. Merritt, because “Merritt had a better interview;
his experience was better suited for the position; he had an excellent letter of reference from his
former supervisor and he did not have a history of problematic habits like Plaintiff.” (Def.’s
Summ. J. Br. at 15, [Doc. #19]). Assuming, arguendo, that Defendant has proffered legitimate,
nondiscriminatory reasons for not selecting Plaintiff for the Caswell County CED position, the
burden again shifts to Plaintiff to present evidence that Defendant’s proffered reasons are
pretext for discrimination. As described in more detail above, Plaintiff has presented the
statements of Walter (“Sam”) Butler regarding the Committee’s concern with having an allfemale staff and a female CED in Caswell County. In addition, Plaintiff has presented evidence
regarding the disparities between the selection process for Plaintiff and for the male applicant,
and ultimate Selectee, Billy Merritt, including the disparity in the time spent by each candidate

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on the interview, the fact that Defendant praised Mr. Merritt for his letter of reference but
declined to accept a letter of reference from Plaintiff, and the fact that Mr. Merritt had
previously been disqualified from the interview process for failure to follow directions. In
addition, evidence that the Committee held multiple meetings to discuss their purported
concerns with the single candidate, that is, Plaintiff, both inside and outside of the selection
procedure, raises an inference of pretextual discrimination sufficient to overcome summary
judgment at this time.
Based on all of the record evidence, the Court concludes that genuine issues of material
fact exist under either framework set forth above such that granting summary judgment for
Defendant would not be appropriate in this case. As such, the Court will deny Defendant’s
Motion for Summary Judgment as to Plaintiff’s gender discrimination claim.
C.

Plaintiff’s Retaliation Claim

In addition to her gender discrimination claim, Plaintiff asserts a claim for retaliation
under Title VII, 42 U.S.C. § 2000e-3(a), alleging that Defendant discriminated against Plaintiff
during the second round of interviews for the vacant CED position because Plaintiff sought
EEO counseling for alleged gender discrimination after her first interview. However, although
Plaintiff, who is represented by counsel in this action, asserted retaliation allegations in her
Complaint, she does not address her retaliation claim anywhere in her Response to Defendant’s
Motion for Summary Judgment and, therefore, appears to have abandoned that claim. In these
circumstances, and pursuant to the Local Rules of this District, the Court will grant Defendant’s
Motion for Summary Judgment as uncontested with regard to Plaintiff’s retaliation claim, and

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will, therefore, dismiss Plaintiff’s retaliation claim. See L.R. 56.1(d) (“The failure to file a
response may cause the Court to find that the motion is uncontested.”).
IV.

CONCLUSION
Based on the foregoing, IT IS ORDERED that Plaintiff’s Motion to Strike is DENIED

without prejudice to the parties raising specific objections at trial as necessary. IT IS
FURTHER ORDERED that Defendant’s Motion for Summary Judgment is GRANTED IN
PART and DENIED IN PART, as set forth herein. Specifically, Defendant’s Motion for
Summary Judgment is GRANTED as to Plaintiff’s retaliation claim, and such claim is hereby
DISMISSED. However, Defendant’s Motion for Summary Judgment is DENIED as to
Plaintiff’s gender discrimination claim.
This, the 7th day of June, 2013.

United States District Judge

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