SMALL v. NORTH CAROLINA A&T STATE UNIVERSITY

Filing 31

MEMORANDUM OPINION and RECOMMENDED RULING - MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 08/20/2014 as set out herein. RECOMMENDED that Defendant's motion for summary judgment (Docket Entry 19 ) be GRANTED and the action be DISMISSED.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
VAIERIE SMALL,
Plaintiff,

V.

NORTH C,\ROLINA,4.&T STÂTE
UNIVERSITY,

)
)
)
)
)
)
)
)

1,:1,3CY248

)

)
)

Defendant.

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE IUDGE
Plaintif{ a formet employee of Defendant

Noth

Carohna,\gricultural and Technical

State Univetsity ('NC,{.&Ð, btought this action alleging, inter alia, wtongful discharge,

violation of the Equal Pay Act, discrimination based on race and gender, and

retz.ltzitofrI

dischatge. The matter is befote the coutt on Defendant's motion for summary judgment
pursuant to Federal Rule of Civil Procedure 56. (Docket E.rtty 19.) Plaintiff has responded

to the motion and the matter is ripe for disposition. For the reasons that follow, it

is

recommefl.ded that Defendant's motion be granted.

I. FACTUAL

BACKGROUND1

Plaintiff was initially employed at NCA&T in September 2003 in a temporary, full-

time, grant-funded position

in the Depanment of

Information Technology ("DoIT").

(Compl. fl 4, Docket Entry 2;Def.'s Mot. Summ.J. E". 5, Declatation of Linda Mc,\bee fl 6,

I

These facts are viewed in the light most favorable to Plaintiff. For the most part, the operative
facts ate undisputed and ate drawn from the complaint, the depositions of the parties and the
affidavits and declarations submitted by the parties. The paties disagree ovet the inferences to be
dtawn from the facts.

Docket Entry 19-5; Pl.'s Response Br., Ex. A, Affidavit of Valetie Small fl 3, Docket Entry
26-1,.) Plaintiff was employed on aye^r-to-year basis through September 30,2007. (Compl.
1[1[

7, 9; McÂbee Decl. fl

-Analyst Ptogrammer

I

8.) Plaintiffs position

and a Data Base Softwate Ânalyst; these two positions had the same

salary gtade under the State

7; Small Aff. T

frcm

4.)

was originally listed as both an Applications

Office of State Personnel ("OSP") guidelines. (AzlcÂbee Decl. fl

In Septeml:er 2006, NCA&T began the process of conveting positions

a gtaded classification system

to "career banding."

(À4c-Abee

Decl. fl 9.) This process

involved "cross-walking," a system of mapping which "translated each position in the old
classifìcation system

to a position in the new classi{ication system, without regard for

any

patticular employee in any particular position." Qtl.) Under the new system, PlaintifPs job

title was changed from -Applications ,\nalyst Programmet

I to Business

and Technology

.{pplications Analyst; het position numbet, salary, and time limit remained unchanged.
(À4c,\bee Decl.

1T

10 )

On July 31, 2007, Plaintiff was informed that the funding for her position had run
out, and that het position would be tetminated on September 30, 20072. Qd. ll 11; Small

Aff. lJ 23; Compl. n 22.) On August 3,2007, Plaintiff filed a gtievance pursuant

to

Defendant's Gdevance Policy, contending that because she had been employed by NCA&T

for ovet three years, het position was permanent and she could not be

terminated.

(Employee Grievance and Appeal Filing Form, Mc,{bee Decl., Ex. 7, Docket Entty
23;

2

see

also Cornpl.

n

n.)

'1,9-5 at

Plaintiff also taised others issues in the grievance, alleging that

Plaintiff refers to this action

as

the first reduction-in-force ("RIF")
2

she

had been tetaliated against because she had sent a list

of ITT problems to the NCÂ&T

Chancellor and othet officials. (Id.)

.After Plaintiff filed het gdevance, a new Business and Technology Applications
,\nalyst position u/as cteated fot her in the Offìce of Student ,\ffairs, to start on October

1,

2007. (À4cAbee Decl. Ex. 8.) Plaintiff was transfetred to this position, without a bteak in
service, and retained the same salary. Q4cÂbee Decl.

fl 14; McAbee Decl. Ex. 9; Compl. fl

33.)

After Plaintiffs transfet to the Student Affairs division, she was placed on
investigatory leave with pay and was disciplined fot unacceptable petsonal conduct. This
conduct, which occutted in August 2007 l:efote her transfet, involved unauthotized access

of petsonal information of fotmet and curent NCA&T employees. Plaintiff received a oneweek suspension without pay. (Compl.

ffl

27-31,; Mc-A.bee

Decl. T 15.) Plaintiff contends

that the conclusions of the disciplinary process were incotrect because she was authodzedto
access all infotmation

in the different University

databases and she

"did not know at the

time that the wdtten atthonzatton for þer] to have access to these databases was not in

þer] personnel fìle." (Small ,\ff.

I 31.) Plaintiff

also contends that the suspension she

received was in retaliation fot het reporting problems in the

DoIT.

(Id.1132.) Although the

conduct fot which she was disciplined occurred while Plaintiff was still wotking in DoIT, the
disciplinary process was issued by Sullivan rü(/elbourne, the Vice Chancellor

fot

Student

Àffairs, because Plaintiff had already been transferred to Student Affairs at the time the
disciplinary lettet was issued. (Compl.

I

27

-31; McAbee Decl. fl 15; Small Aff.

3

11

30.)

In eatly Novembet 2007, after her one-week suspension, Plaintiff began working fot
LeonardJones, Ditectot of Housing and Residential Life in the Division of Student Âffairs.
(Compl. fl 32; Mo\bee Decl. Ex. 10; Small Aff.

1[

33.) According to Plaintiff, Mr. Jones

"nototiously diffìcult to wotk with and was disposed
violence." (Small ,{ff.
as the

f

to

was

confrontations and thteats of

33.) Also in November 2007, Linda Mc,{.bee was hired by NCA&T

Vice Chancellor of Human Resources. (À4c-dbee Decl. fl 3.)

McÂbee soon leatned that Plaintiff believed that her position was impropedy
classifìed. Âccotding to Plaintiff, she claimed that she had received a promotion in 2006
which was never implemented. Plaintiff alleges that on August 1,7,2006,3 she was granted

a

ptomotion to the position of Datal¡ase -Adminisuation Manager, and that Plaintiff and her
supervisot at that time, Sam Hardson, together with Vice Chancellor for IT, R.E. Harrigan,
executed a Position Description Form eD-102R), effective August 15,2006, to teflect this

ptomotion. (Compl. ff 12; Compl. Ex. 1; McAbee Decl. T 30 ) Plaintiff contends that she
confrmed the terms of the ptomotion in a letter dated November 9,2006 to the Intedm
Vice Chancellor of

ITT.

(Compl.

ll

14; Compl. Ex.

2.)

Âccording to McAbee, such

position teclassifìcation would have required the approval
Resources Depatment and OSP; there is no record

of

of both NCA&T's

a

Human

any such approval. (i\4c-Àbee Decl. fl

30.) In investigating this matter, and reviewing contemporaneous e-mails, McÂbee

learned

that a dispute had adsen between Plaintiff and NCA&T officials over Plaintiffs ptoposed
salary, and that F{alrrigan

left NC-{&T before the dispute was resolved. (d. T 31.) Hatrigan's

3 In her complaint, Plaintiff

lists this date as Âugust 77 ,2016, cleady a typographical eror. The
context of these allegations, togethet with the documents referred to and submitted as exhibits show
that these events occurted :u;'2006. (Jee Compl., Ex. 1, Docket Enty 2-1.)
4

replacement, Dr. Yljay Verma, decided not to proceed with the reclassifìcation of Plaintiffs

position. (Id.) Thus, Plaintiff temained Ãs

^rr,\pplication

Analyst Progtammer

I until her

position was cross-walked to a Business and Technology Applications Analyst. Her new
position in 2007, created to avoid het tetminatfon, was likewise classified as a Business and
Technology -dpplications Analyst, tesulting

in a hortzontal transfer on October 1, 2007.

(À4c,\bee Decl.lT 10.)

Plaintiff also informed Mc,{bee that her job duties and position classification were
not consistent. (lzlcÂbee Decl. 1126.) Plaintiff believed that she had been passed over for
market value increases which had been given to certain
was petforming duties

IT positions;

she believed that she

of a Datal:ase Managet but was not being compensated for

such.

Mcr{bee, in attempting to addtess Plaintiffs concerns, directed her compensation analyst to

look at Plaintiffs duties and position classification. In doing so, Mc,{.bee set up a meeting

with Plaintiffs supervisots

(ÌüV'elbourne and Jones),

Loleta Chavis, a compensation analyst,

and Sheila Benton, who had pteviously served as Intedm Directot of Human Resources
before McÂbee was hired. (Compl.

111[

43-45.) ,\ccording to Mc,\bee,

it is the duty of

management, not Human Resources, to detetmine an employee's job duties. (N4cAbee Decl.
111128-2e).

Jones, who was Plaintiffs immediate supervisot

in

Student ,\ffairs,

assigned

PlaintifPs job duties. Following the meeting with HR and Plaintiffs supervisors,

it

was

detetmined that Plaintiff was propetly classified as a Business and Technology ,\ppìications

Analyst, at the Journey level, and that the duties assigned by Jones were consistent with

5

Plaintiff's classifìcation. Jones was directed to proceed with his evaluation of PlaintifFs job
perfotmance.

(See

McÂbee Decl. Ex. 14.)

In a meeting with

Jones in July 2008, Plaintiff and Jones had an argument over

Plaintiffs job duties and the proper classification fot her position. (Compl. fl 50; Pl.'s Dep.

2/29/12 at'1,03-04;116-1S.) Plaintiff was disciplined following this meeting fot slamming
the door when leaving Jones' offìce. (Compl.
17

lTT

52, 55.) In a letter to

'Welboutne

on July

,2008, Plaintiff claimed thatJones was intimidating and hatassing, and on August 28,2008

she filed a gdevance alleging such behavior on the patt ofJones. (Compl.

I51,54;

McAbee

Decl. TT 33-35, 37; McAbee Decl. Ex. 18.)

On .{ugust 18, 2008, Welbourne teassþed Plaintiff to wotk undet the supervision of
Ryan Maltese, the Directot

Affairs. (Compl.

11

of the University Events

56; McÀbee Decl.

petformance evaluation for Plaintiff

I

Center

in the Division of

Student

35; McAbee Decl. Ex. 16.) Maltese completed

a

in May 2009. (Def.'s Mot. Summ. J., Declaration of

Melody Pierce, Ex. 2, Docket Entry 1,9-6.) While Plaintiff noted on the evaluation that she
believed the Careet Banded Title for het position was still incorrect, she did not fìle any
gtievances aftet she began working under Maltese's supervision.
31; McAbee Decl.

In

I39

€1" Dep.

2/29 /12 at 130-

)

2009, NC,A.&T advetised an

IT

ManagerfDatal:ase Administratot position.

Plaintiff did not apply fot the position. (N{c,{.bee Decl. Í144.) Jefftey Mueller was hired fot
the position, effective May 7,2009. (Id.) Mueller tesigned less than a

yer latet and the

position was again advertised in 2010. (Itl.) Plaintiff did not apply for the position at that
time eithet. NCA&T hited Gary Bums for the position effectiveJune 1, 20,10. (Id.)

6

In Aptil 201.0,Barbara Ellis was hited as Intetim Vice Chancelior for DoIT. (Def.'s
Mot. Summ.J., E". 3,Declaration of

Barba:ø-

Ellis fl 3, Docket E.rtty 19-3.) InJune

20'1,0,

3.)

Soon

Melody Pierce was hired as Vice Chancellor for Student -Affaits. @ietce Decl. fl

after her hiring, Pietce leatned that Plaintiffs position was the only technical position in
Student Affairs and because neithet Pierce nor Maltese had technical expettise,

it would

be

more effìcient to move the suppott of the R25 application, which was Plaintiffs primary
responsibility, back within

DoIT. Ellis detetmined that DoIT

accomp^nying R25 with its existing

could absotb the duties

staff. The ttansfet of the R25 application to DoIT

meant that Plaintiff had no remaining duties. Pietce therefote made the decision to

eliminate Plaintiffls position;
authortzatton

on March 14, 201,1,, Pierce submitted a

request for

of a reduction in force ("RIF") to Human Resources. (Ellis Decl. J[fl 5-8;

Pietce Decl. 1fl 7-9; Pierce Decl. Ex. 1; McAbee Decl. 11 14; McAbee Decl. Ex. 19.)

Following approval

of the RIF

tequest, Plaintiff was laid

off

effective

Âpdl 15, 201.1.

(l4c,\bee Decl. Í[ 42;McÀbee Decl. 8x.21,.)

On March 17,201,1, PlaintiFf filed a Petition in the North Caroltna Offìce of
,\dministrative Headngs ("OAH") alleging that the elimination of her position was due to
disctimination based on race or gender andf or retaliation. In an Ordet dated May 24,

201,3,

the Âdministtative LawJudge ("ÂLJ") found that Plaintiff had not met het burden to prove

discrimination or tetaliation. (Def.'s Bt., Ex. 1, O,A.H Otder, Docket Er,tty 20-1,.) The

North Carolna State Personnel Commission ("SPC") adopted the fìndings and conclusions
of the AIJ on November 13, 2013. (Def.'s Br., Ex. 2, SPC Order, Docket E.rtty 20-2.) A.t

7

the time of briefing in this matter, Plaintiffls petition fot judicial teview of the SPC's decision
was pending in Guilfotd County Supetiot Court.

Plaintiff fìled a Charge of Discdmination with the Equal Employment Oppottunity
Comrnission ("EEOC") or June 15, 2011, alleging that she had been disctirninated against

on the basis of sex and that she had been
discdmination.

@1.'s

Dep.3/20/1.4 at 68;

retaliated against

for

complaining of

and Ex. 5.)

On February 21., 201,3, Plaintiff fìled this action in the Guilfotd County Superiot

Coutt. (Docket Enty 2.) On March 27, 2013, Defendant removed the case to this court
pursuant to 28 U.S.C. S 1446(d). (Petition for Removal, Docket Entry 1.) Defendant filed

the motion for summary judgment on May 2, 201.4 (Docket Entry 19) and Plaintiff
tesponded to the motion onJune 30,201,4. (Docket Ftrtry 26.)

II. MOTION

FOR SUMMARYJUDGMENT

A. Standard of Review
Summary judgment is proper only when, viewing the facts in the light most favorable

to the non-movingpaïry, thete is no genuine issue of rnatertal fact and the movant is entitled
to judgment as a matter of law.

-1¿¿

Fed. R. Civ. P. 56(c); Celotex Corþ. u. Catrelt,477 U.5.317,

322 (1,986); Holland u. Il/a.rhington Homes, Inc., 487 F.3d 208, 213 (4tt' Cu. 2007). Ân issue is
genuine

if

patry.

See

a teasonable jury, based on the evidence, could find

in favor of the non-moving

Anderson a. Liberfl Lnbþt, 477 U.S. 242, 248 (1986); Holland, 487 F.3d at 21.3.

The

materiahty of a fact depends on whether the existence of the fact could cause a iury to reach

diffetent outcomes.

See Andersoru,

477 U.S. at

248.

Summary judgment tequires

determination of the sufficiency of the evidence, not a weighing of the evidence.

I

See

a

id. at

249. In

essence,

disagreement

the analysis concerns "whether the evidence presents a suffìcient

to require submission to a iury or whethet it is so one-sided that one party

must prevail as a matter of law."

Id.

at25"l.-52.

A paty opposing a propedy suppoted motion for summary judgment

of þer] pleadings, but rather must
set forth specific facts showing that thete is a genuine issue of tdal.

may not rest upon the mere allegations . . .

Furthermore, neither [u]nsuppotted speculation, nor evidence that is metely
colorable or not significantly ptobative will suffìce to defeat a motion fot
summary judgment; r^ther, if the adverse patty fails to bdng fotth facts
showing that teasonable minds could diffet on a material point, then,
regardless of [a]ry proof ot evidentiary requirements imposed by the
substantive law, summary judgment, if appropriate, shall be entered.
Bouchat u. Baltimore Rauens þ-ootball Clab,

[nc.,346 tr.3d

51,4,

522 (4th Cir. 2003) (intemal

quotation matks and citations omitted).

B. Discussion
In her response to Defendant's motion fot surilnary judgment, Plaintiff

concedes

that she does not have a claim fot wrongful discharge in violation of public policy. @1.'s Br.

Opp. Summ.J. at 7, Docket F,nttt¡ 27.) Furthet, Plaintiff also concedes that "het claim fot
interference with employment rights . . . principally sounds in tott, and thetefote is propedy
subject to the defense of sovereign immunity." (Id.) ,{.ccotdingly, the court will not considet

the motion for summary judgment as to these two claims, the fìrst and fifth claims fot telief

in the Complaint. What remains fot summary judgment considetation, thetefore, are three
claims: (1) violatron of the Equal Pay Act; (2) retahatory dischatge; and (3) discrimin^tory
discharge.

9

L. Equal Pay Act Claim (Clairn2)

In her second claim for relief, Plaintiff alleges that Defendant paid male co-wotkers
more for performing the same wotk in violation of the Equal Pay ,{.ct, 29 U.S.C. S 206(d)

("EPA"). In the sole factual allegation

as

to this claim, Plaintiff contends that "fD]efendant

intentionally required fP]laintiff to perform the duties of Database ,\dminisü:ator without
compensation

for that position, but employed men, most of whom were

Caucasian,

Database Âdministrators with annual compensation of $95,000 or higher." (Compl.

11

as

68.)

The Equal Pay Â.ct provides:

No employer having employees subject to any provisions of this section shall
discriminate, within any establishment in which such employees are employed,
between employees on the basís of sex by paying wages to employees in such
establishment at rate less than the rate at which he pays wages to employees
^
of the opposite sex in such establishment fot equal wotk on jobs the
perfotmance of which requires equal skill, effot, and tesponsibiìity, and which
are perfotmed under similar working conditions, except whete such payment
is made putsuant to (i) a seniodty system; (ü) a medt system; (üt) a system
which measures earnings by quantity or quality of productions; or (iv) a

diffetential based on any factor other than sex.
2e

u.s.c. s 206(dx1).

The plaintiff bears the initial burden of establishing a prima fade case of
discrimination.

See Strag

u. Bd of Trustees, 55 F. 3d 943, 948 (4th Cir. 1995).

In this case,

Plaintiff must show: (1) Defendant paid het less than a male co-employee; Q) that the said
employee performed work requfuing equal skill, effort and tesponsibihty; and (3) that they

performed this work under similar working conditions.

417 U.S. 188, 195 (197\; Fowler u.

See Corning

l-^and Mgmt. Groupe, Inc.,

Cla¡¡ lØorks u. Brennan,

978 tr.2d 1.58, 161 (1992).

Plaintiff must identifir a particular male "comparator" for purposes of this inqutry. Strag 55
rest on the bate allegation that she is
F.3d at 948. "¡,\]n Equal Pay
'{.ct plaintiff cannot
10

receiving lower pay for equal wotk; she must also show that the comparison she is making is
an appropdate one." Id. at950.

In its motion for summary judgment, Defendant argues that the statute of limitations
limits the televant time period for Plaintiffs Equal Pay ,\ct claim. The statute of limitations
for a clarn undet the Equal Pay Act is two years, except where a plaintiff proves a willful
violation, in which case the period is three years. 29 U.S.C. $ 255(a). In ordet to prove

a

willful violation, a plarnttff must show that "the employer eithet knew ot showed teckless
disregard fot the matter of whether its conduct was ptohibited by the statute ." Mcl-aøgblin

u.

Nchland Shoe C0.,486 U.S. 128,133 (1988).4

Plaintiff hete filed her complaint on F'ebtuary 21, 2013. Thus, even
prove

a

if

she were to

willful violation, she could not tecovet damages fot the period pdor to Fel>ruary

2'1,

201.0. Plaintiff appears to agree with this argument: "Plaintiff has demonstrated. . . that this

violation is not only willful, it is deliberate and retahatory. The statute allows fot thtee yeats

fot such a deliberate and willful violation, teaching back to at least Febtuary 2010." (Pl.'s Bt.
at 12, Docket Entty

27 .)

Plaintiff faces a bigger hurdle than the statute of lirnitations, however. Plaintiff

has

simply not put forth any credible evidence that shows that she was paid less than any male
co-workers with jobs requiring equal skill, effott, and responsibility dudng the relevant

period. By February 21, 20L0, Plaintiff had been wotking fot

c

several years

in

the

McLaaghlinwas a overtime pay case under the Fair Labor Standards Act ("FLSA"). The Court
was faced with the meaning of the word "willful" as used in the statute of limitations applicable to
civil actions to enforce the FLSA. This court notes that the "Equal Pay Act" is contained in the
F'LSA. Thus, while the claim in McI-nughlin was not an equal pay claim, the statute of lirnitations
discussion in that case is applicable to all types of claims undet the FLSA.
1,7

Department

of

Student Affairs, not DoIT, as a Business

&

Technology -{pplications

-dnalyst. The only male compatator she identifies, Gary Burns, was hited onJune 1,2010 to
a position

advetised and classified as an IT ManagetfDatabase Administr^tor. Plaintiff and

Burns' positions did not require equal skill, effort and responsibility. Plaintiff believed that

het position was misclassified, but as found by the Administrative Law Judge, Plaintiff
temained at the same salary grade and position ftom 2006 until her position was eliminated

in 201.1. pef.'s Br. Ex.

1, OAH Decision fl 30, Docket Entry 20-1,.) Het position was at

salary gtade 76, while Burns' position

caried a

salary grade

of

81

Defendant put forward evidence that Burns' position as a man get involved a gte ter
level of skill, effort and responsibility. In her declaration, Renee Mattin, an IT Directot in
the DoIT since 1997, stated:

The jobs performed by Mt. Butns and Ms. Small in 2010 did not tequire equal
responsibility. Âlthough Ms. Small had some duties in common with a
database administrator, she was responsible fot the R25 application only. Mt.
Burns was responsible for all of the University's databases, many of which
were enterptise-wide systems, unlike the R25 application. Fot example, Mr.
Butns was responsible fot Banner databases, which includes moduies fot
Advancement (donations to the Univetsity), Finance, Human Resources, and
Financial Âid; the One-Card database, which provides student services; and J
Point database cashiedng systems, among othets. Mt. Burns' applications
have over 13,000 users. By contrast, the application Ms. Small v/as
responsible fot in 2010 has around 3,000-5,000 users. If the R25 application
were to go down, Univetsity scheduling activities could not occur and campus
events could be double booked into the same room. If the Bannet
applications were to go down, student tegistration, grading, and student
fìnancial aid processing would not occur. Financial operations fot the
university would be sevetely impacted. Futthermore, Mr. Burns supervises
another employee, a database analyst. Ms. Small's petformance evaluations do
not teflect any supervisory duties.
(Declaration of Renee Martin fl 13, Docket Entry 1,9-4.)

12

In determining whethet jobs are substantially equal for the purposes of the EPA,

a

plaintiff neednotshowthatherposition andthatof hermalecomp^tator ateidenticalin
every respect. Glant u. GES Expo:ition Seras., Inc., 123 F. Supp. 2d 847,856 Q). Md. 2000).
Instead, rather than telying upon patticular job titles, a plainttff "must show that she and het

male counterpart petfotmed substantially equal work
responsibihty."' Id.

(qaoting Hodgsoa u. Fairrnont

in term of 'skill, effott

Srþþll Co., 454 F.2d 490, 493 (4th Clt.

and

1,972).

 job will not attomalcally be deemed to involve equal effort or responsibility simply
because

it includes most of the same genetal duties.

Wheatlel u. IVicomico Coanfii, Md., 390

tr.3d 328,333 (4th Ctr. 2004). A ¡ob will be consideted unequal "despite having the
general core responsibilities

same

- if the more highly paid job involves additional tasks which (1)

requireextraeffort...Q)consumeasignificantamountofthetime...and(3)areofan
economic value commerìsurate with the pay differential."

Id. Qiting Hodgson, 454 F.2d at

4e3).

The evidence in the tecotd shows that during the televant period Plaintiff

was

tesponsible primadly for maintaining one applicat)on, the R25 application which was used

for scheduling events on campus. In het brief, Plaintiff claims that NCA&T tteated her
Database Adminisuator, pointing

to het job

evaluations

for

as a

2008-2009 and 2009-2010,

which list her 'lWorking Title" as R25 Database Administtator. (Pl.'s Br., Exs. A-61

,

A-62,

Docket Entties 26-42, 43.) Howevet, evefl this title, noted only on the evaluation fotms,
suggests that

Plaintiffs pdmary tesponsibility was for the R25 database. Additionally, the

definitions and assessments of competency listed on the evaluations deal ptimadly with the
R25 application. Plaintiff asserts that she worked with other applications, and indeed, the

t3

evaluations show that she was assigned some othet duties, including web design

fot the

Division of Student Affairs, but even she does not claim that she was responsible fot
maintaining all the various databases fot which Burns, the male comparator, was responsible.

Âdditionally, the evidence shows that Plaintiff had no supervisory responsibilities, unlike
Butns

Plaintiff has not put forward evidence which demonstrates that she held a job
tequfuing the same skill, effott, and responsibility as that of a male who was paid mote than

her. Even vìewing the facts in the light most favorable to Plaintiff

and weighing the

evidence in her favor, thete exists no genuine issue of material factthat the salary differential

between Plaintiff and Butns was based on gendet discrimination. -Accotdingly, the Coutt

recommends that Defendant's motion fot summary judgment on Plaintifls Equal Pay Act
claim be granted.

2.

Retaliation Claim (Claim Three)

Plaintiff asserts a clakn for retahatton pursuant to Title
1964 rn Claim

VII of the Civil Rights .,\ct of

Thtee. Title VII provides that it is unlawful:

for an employet to disctiminate against any of his employees . . . because he
has opposed any ptactice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified, assisted, or paticipated
in any manner in aî investigation, ptoceeding, or hearing undet this
subchapter.

42U.S.C. $ 2000e-3(a).

,\

fundamental requirement

of such a clakn is that the tetaliation

against the employee be based upon that employee taising charges

the ptovisions of Title

acts

statute

and

VII,

it

i.e., an

employmentpracice.

of non-compliance with

Id. Title VII "is not a general bad

does not prohibit private employers from retal-iatng agarnst an

1,4

employee based on het opposition to disctimirr tory ptactices that are outside the scope

Title

VII."

Bonds u. I-.eauitt,629

F.3d 369,384 (4th Cir. 201,1);

Uniu. S1ts., 1,1,7 F.3d 242,249 (5th Cir. 1997) ("Tide

see

of

also Lnwrel u. Texas AdiM

VII prohibits

tetaliation only against

individuals who oppose discdminatory employment practices or participate in complaints ot
investigations of employment practices ptohibited by title

VII.");

PaÍterson u. ll/e¡Íem Carolina

Uùu., No. 2:12cv3, 201.2 ffl- 6851306, at x2 CX/.D.N.C. Nov. 26, 2012) (unpublished)
(quotingLitman u. George Ma¡on Uniu.,156 F'. S.,pp. 2d 579,584 e,.D. Ya.2001))

("[rtle VII]

ptovides a remedy only for those who suffet retaliation after chatging noncompliance with
Title

VII itself, eg., those who complain of discriminatory

employment practices.").

In the absence of direct evidence o[ discdmination, coutts apply the burden-shifting
framework set forth in McDonnell Doaglas Corp. u. Green,411 U.S. 792 (1.973) for claims
pursuant to Title

VII.

Under the McDonnell

of demonsttating aþrimafacie

case

Doaglas analysis,

Plaintiff has the initial burden

of retaliation. A plaintiff can meet this burden by proving

three elements: "(1) that she engaged in a protected activity; Q) that her employet took an
adverse employment action against her; and (3) that thete was a causal link between the two

events." Balas u. Hantirugton Ingall Indas.,Int.,711 tr.3d 401,,41,0 (4th Cir. 201,3) (quotingEEOC
u.

Nary

t:-ed.

Credit Union, 424 tr.3d 397 , 405-06 (4th Cir. 2005)); I-øøghlia u. MeÍro. lØashington

Airports Aøth., 1,49 tr.3d 253, 258 (4th Cit. 199S); Caasry u. Balog 1.62 F. 3d 795,803 (4th Cit.

1998). If a plaintiff establishes aþrinafatie

case,

the defendantcaî tebut the presumption

of

retaliation by articulating a non-discdmifl tory reasorì for its actions. The plaintiff then must
present evidence sufficient

to create a genuine issue of matenal fact that the defendant's

15

legitimate, non-retaliatory reason is pretextual.

See

Matuia a. Bald Head Island Mgnt., 259 F.3d

261.,27L (4th Cir. 2001)

The Supteme Coutt recently held that "Title

VII

retaliation claims must be proved

according to traditional pdnciples of but-fot causation . . . tequirfing] ptoof that the unlawful

tetaliation would not have occurred in the absence of the alleged wrongful action or actions

of the employet."

Uniu. of Texas Soathwestern Med. Center u. Nassar, 133 S.Ct. 2517, 2533

Q01,3). The Foutth Citcuit Court of ,\ppeals has noted that in the tetaliation context, Nassar

tequites that a plaintiff "retains the ultimate butden of petsuading the trier

her engagement

in the protected activities

of fact . . . that

v/as a 'but-for' cause oF' the alleged advetse

employment action. Stale1 u. Graenberg, No. 13-1875,2014WL 2535403, at x1 (4th Cir. Jun.

6, 201,4) (unpublished) (citing Nassar, 133 S. Ct. at 2533) (internal quotation and citation

omitted). Indeed, several courts in this Circuit have held that the "but-for" causal link
requited by Nan'ar applies at the summary judgment stage.
Civ. No. TJS-10-1933,2013

ìíL

See þ-oster

u. Uniu. of Md. E. Shore,

5487813, at * 6 (D. Md. Sept. 27,2013) (noting that Nassals

heightened standard of causation applies on sununary judgment); Atkins u. Belissary, Civ. No.
4:1.2-cv-L856-RBH, 201.4 Iü-T, 507279, at x5

p.S.C. Feb. 6, 2014) (in gtanting summâry

judgment, court noted that Nassar tequires a plaintiff to establish the causation element
her primafaùe case pursuant

to the but-fot standatd); ll/alker

u.

of

Mod-U-Kraf Home¡ LLC, 988

F'. Supp. 2d589,601 CW.D. Ya.201.3) (same); bat¡ee SkrTecqu Cib¡on Island Corþ., Civ. No.

RDB-13-1796, 201,4 WL 3400614, at x11 n. 11 (D. Md. July 11, 2014) (in discusstng Nassar

in the F'SLA context, coutt notes that "establishing 'but-fot' causation is the ultimate burden
that a plaintiff must prove at ttial, while at the summary judgment stage, a plaintiff faces

16

a

less onerous burden

of making a prkna facie case

oF causality.") (intetnal

citation omitted).

Thus, under Nassar, to establish a "but-fot" catss^I telation, a plaintiff must now prove that

"the desire to tetaliate was the 'but-for' cause" of the adverse action taken against her.
Nassar,133 S. Ct. at2528.

In this case, the only actionable adverse action is the RIF decision, which occured in

,\pril 2011.s The only "protected activities" which Plaintiff
a. man was paid higher wages than she was, btought

alleges are (1) her

complaintthat

up in het gdevance concetning

Defendant's tefusal to implement her ptomotion and taise (Compl. ll17); and (2) Plaintiffs
lettet to Dt. \X/elbourne, Vice Chancellor for Student -dffairs, alleging hostility and tetaliation
against her by Leonatd Jones, togethet

with a gtievance she fìled concerning the alleged

intimidation, hatassment and misconduct of Jones. Qd. llll

51,, 54.)

,{.t her deposition in March 201,4, Plaintiff explained that het complaint that a man
was being paid higher wages was actually contained in the "gtievance" she fìled in Novembet

2006. Ql;s 3/20/14Dep.
Docket Entty 1,9-2). In this letter, addressed to
^t37-39,

Pat

Chatt, the Interim Assistant Vice Chancellot of ITT, Plaintiff complained that she had not
received the reclassifìcation
promised to

to a higher gtade and salary inctease that she claims were

het. pl.'s 3/20/14Dep.,F-x.2, Docket Entty

1,9-2

at8.) In a follow-up e-mail

on Decembet 1, 2006, Plaintiff cladfìed her questions tegarding the promised classifìcation,
essentially complaining that the 5o/o proposed salary increase with the promotion to "DBA

s

plaintiff must file a charge with the EEOC within either 180 or 300 days of the alleged
42 U.S.C. fl 2000e-5(e) (1); Nat'l kk Parenger Corp. u. Morgan,536 U.S. 101,
^ct.
110 (2002). Plaintiff Frled het charge of discrimination with the EEOC onJune 1.5,201.1.. Thus, any discrete
act occurring on or before August 19,2010 may not fotm the basis for Plaintiffs retaliation claim. Morgan,
536 U.S. at 1,10. The only adverse action alleged in PlaintifFs complaint which occutred after Âugust 19,
2010 is the reduction-in-fotce action, which was decided on Match 15, 20tl and became effective on Äpril
t5,2011.
Undet Title VII,

discriminatory

ot

a

rctahatory

I7

Managef' would result in her being paid less than some of the employees who would be

reporting

to her.

(1d.,

Ex. 3, Docket Entry

1.9-2

at

1,0-1,1,.) Plaintiff lists

the three

administtatots in that category, all of whom are male. (Itl.) This observation, contained in

an emall in which Plaintiff attempts to obtain clartficatton of a ptomotion and raise she
claims wete promised to her, simply does not rise to the level

of a grtevance or complaint

that male employees in her position were being paid mote than her. This email cannot in
any fashion be viewed as "protected activity" within the meaning of Title

VII. Plaintiff was

simply complaining about het salary and classification in conjunction with her belief that she
had been ptomised a ptomotion and a raise.

Plaintiff also alleges that she engaged in ptotected activity when she complained of
hatassment by Leonatd Jones. (Compl. T1l 51, 54.) Specifically, Plaintiff contends that het

lettet to Dr. ìlelbourne dated July 17,2008 constitutes evidence that she complained of
hostile envi-tonment and that Jones retaliated against het

fot

a

those complaints. While

Plaintiff uses the term "hostile environmerìt" in the letter, it is cleat that the incident she is
complaining of occurred when she asked Jones fot clarifìcation of het teclassifìcation status.
She claimed that Jones, her supervisor, stared at het without blinking

fot fotty seconds

and

that she was scated because she was a woman. Howevet, she did not complain that the
intimidation or harassment was motivated by her sex oT any other protected category undet

Title

VII.

She was merely recounting a disagteement between herself and her supervisor

The letter, and the later gdevance based on the same incident, do not constitute protected
activity under Title

VII

18

Moteovet, even if Plaintiff demonsttated that she engaged in protected conduct
undet Titie

VII,

she has failed

to put forward any evidence linking the ptotected activities to

the RIF which occutred more than fìve years
ptoximity

can,

in some

cases, be sufficient alone

latet.

Although "very close" temporal

to establish causation, an extended petiod

of time between protected activity and alleged tetaliation "suggests, by itself, no causality at

all."

Clark Cnfl. Sch. Di¡t. u. Breeden,532 U.S. 268, 273-74 (2001). The Foutth Citcuit has

recently afftmed that a retaliation claim shouid be dismissed at the pleadings stage
allegations show a substantial length

employment action.
4842041, (4th

See

Hart

the

of time between the protected activity and advetse

u. Hanouer

Cnfl. Sch. 8d.,495 F. -{pp'x No. 11-1619,2012WL

Cir. Oct. 12,201,2) (unpublished) (affirming dismissal of complaint and citing

cases whete petiods

this case, the fìve-ye

of thirteen and twenty months negated an inference of causation). In

^t

gàp between the alleged protected activity and the

insufficient to demonstrate a causal connection.
1.93

if

RIF decision is

See, e.g., Paschøa/ u. L,owe's Home Centers, Inc.,

F. App'* 229,233-34 (4th Cn. 2006) (unpublished) (afftming surrrnary judgment when

only evidence of causal connection involved a thtee to four month time gap). Therefore,
because Plaintiff carinot show

a causal connection through temporal proximity, she must

prove, through other relevant evidence, retahatory animus. I-nttieri u. Eqaaat, Inc., 478 F.3d
640, 650 (4th Cir. 2007). Here, Plaintiff has not shown that either

of the decision-makets,

Ellis and Pierce, nor any NCÂ&T administratots, had any rctaltatory animus against her or
any reason to retaliate against her.

Futthermore, even assuming Plaintiff established

a

þrima fatie case

of discdmifl tory

retaliation, Defendant has asserted a legitimate, nondiscriminatory reason for the adverse

19

employment action. The administrators involved in the RItr decision, Vice Chancellots Ellis
and Pierce, testified that the decision to telocate Plaintiffs duties to

careful review and

DoIT was made aftet

in order to increase effìciency and provide better

Affairs. (Ellis Decl. flfl 5-9; Pierce Decl. ffil 6-12.) Plaintiff

services

has failed

to

Student

to establish that

I)efendant's legitimate, non-retahatory reasons fot tetminating het employment thtough

a

RIF were pretextual - either for complaining that she was paid less than male counterparts or

fot complaining of a hostile work environment. ,\ccotdingly, the court finds that no
reasonable

jutot could detetmine that Defendant's proffeted reason for the RIF was a

pretext fot retaliation.

Plaintiff has failed to cite any evidence that demonstrates a causal connection
between her alleged protected activity and Defendant's RIF decision, let alone the "but-for"

proof of causation that Nassar now tequires. Rather, Plaintiff offers only conclusory
allegations based on her assumptions, together with het self-serving deposition and affidavit

testimony, which are unsuppotted

ptesented

l:y

any admissible evidence. Thetefote, the evidence

by Defendant, combined with the lack of evidence submitted by Plaintiff,

demonstrates there

is no

genuine issue

of matetal

fact as

to Plaintiffls

allegations

of

tetahatory motive.

This coutt, thetefote, concludes that Plaintiff has failed to set foth

of retaliation. Futhermore,

everì.

if Plaintiff

had succeeded in making out

a

a

þrima fade case

prima fade case,

this court concludes that Plaintiff has failed to present evidence ftom which a reasonable
fact fìnder could conclude that Defendant's ptoffered reasons for the RIF in this case are

20

only pretexts for discriminatory tetaliation. The coutt recorrur.ends that Defendant

be

granted summaq/ judgment on this claim.

3. Discriminatory Discharge Claim (Claim Four)
In het fouth claim for relief, Plaintiff

alleges that Defendant discdminated against

her because she was the only employee subjected to a RIF "which was discdminately applied
against het

in substance and in violation of ptocedural protections." (Compl.

I

89.) Just

as

with the tetaliation claim, where thete is no evidence of discrimination, Plaintiff must
establish aþrinafacie case of discriminatory discharge using the McDonnell Doøglas framewotk.
411 U.S. at802;

see

al¡o Reeues u. Sanderson Plambingl)rods., [nc.,530 U.S. 133, '142

plaintiff is successful in makingaprimafatie

case,

Q000).

If

a

then the burden shifts to the defendant to

aniculate a legitimate, nondiscriminatory reason for the challenged action. Reeues,530 U.S. at
1,42; MtDonnell Doagla¡ 411 U.S.

at802. Once the defendant "ptoduces sufficient

evidence

to support a nondisctiminatolT explanation fot its decision," the burden then shifts back to
the plaintiff to show that the legitimate reasorì.s offeted by the defendant were not its ttue
reasons, but were a pretext

fot discdmination."

Reeues,530 U.S.

^t

1,43 (internal citations

omitted).

To establish

a prima

fade case of discriminatoty dischatge undet Tide VII, Plaintiff

must show the following elements: (1) she is a member of a protected class; (2) she was
qualifìed for the job and met the employet's legitimate expectations; (3) she was dischatged
despite het qualifications and petformance; and (4) following her dischatge the position

eithet remained open or was fìlled by similatly qualifìed applicants outside the ptotected
class. Hi// u. I-nckheed Martìn Lngiúics Mgmt., [nc.,354 tr.3d 277,284 (4th Cu. 2004) (en banc).

21

Because she was terminated as the tesult of a reduction in force decision, Plaintiff could also

satisfy the fourth element of

a

prima fade case by intoducing other probative evidence that

indicates the employer did not treat her race and gender neutrally when making its decision.
Causell, 162

F.3d at 802 ("Because þlaintiffl was terminated as part of a reduction in fotce,

he could potentially satisfi' the fourth element of a prkna facie case by introducing other
probative evidence that indicates the employer did not treat
making its decision.");

see also

^ge

and race neutrally when

Dagan u. Albemarle Cnfi. School Bd., 293 F.3d 71.6,720-21 n.1

(4th Cit. 2002) (discussing McDonnell Douglas ftamework in a RIF context); Herold
Corþ.,864 F.2d 3L7,31,9 (4th Cir. 1988) (noting that when a decision

u. HE'oca

to tetminate an

employee as paÍt of a reduction in force is not based on employee's job performance, foutth
step of theprinafacie case is met by showingthat "persons outside the ptotected. . . class

wete retained in the same positiorì or . " . there was some othet evidence that the employer
did not treat [the class] . . . neutrally in deciding to dismiss the plaintiff.").
Defendant here concedes that Plaintiff satisfies the frst three factors of theprimafacie
case. (Def.'s Bt. Supp. Summ. J. at

1,9

n.8, Docket Entry 20.) Howevet, Defendant argues,

and this court agrees, that Plaintiff has not shown any circumstances of the RIF, other than

the first three prima fade elements, that suggest or give rise to an infetence of discrimination

from which a jury could determine that NCÂ&T did not treat Plaintiffs nce and gender
neutrally in handling the

RIF. PlaintifPs mere allegations, and her unsupported

assertions in

her afltdavit, ate insufficient to show that her tace and gendet wete not neuttal factots in the
decision to RIF Plaintiff.

22

Defendant has presented evidence indicating that the decision to tetminate Plaintiffs
position was based on non-disctiminatory factors. The two administtatots involved in the
decision to move Plaintiff's duties to DoIT are both .,\ftican-Âmerican females. @ietce Aff.

fl 2; Ellis Aff. 112.) Both Pietce and Ellis testified about the ptoblems the Univetsity was
experiencing with the R25 application and their belief that

function adequately,

it

in order fot the application to

should be supported in its entirety by

DoIT.

@ierce Decl.

TI

7-8;

Elüs Decl. TT 5-6.) They both testified as to the "purely business" reasons for the decision
and specifically state that Plaintiffs protected status had nothing to do with the decision to

eliminate PlaintifPs position. @ietce Decl. n

n;

Ellis Decl. fl 9.) Plaintiff has simply not

demonstrated that there was any discdminatory animus attached to the RIF decision.

Moreover, as Plaintiff concedes, Defendant hete has aticulated a legitimate nondiscdminatory teason for the RIF, which was to increase the efficiency

of the DoIT.

Â,s

Ellis stated in her affidavtt, "it made perfect business serise to me thatif DoIT could absotb

the work associated with the R25 application, then
application to

DoIT."

@,llis

it

was more effìcient

to move the

Âff. fl 8.) Once that decisiori was made, and it was determined

that DoIT could handle the work to support the R25 appìication without hidng additional
employees, the decision to RIF PlaintifPs position was a legitimate and made sense.

Thus, to survive summary judgment, Plaintrff must demonstrate that Defendant's
explanation is mere pretext. "To make this demonstration, the employee must show that

as

between the plaintifls þrotected status] and the defendant's explanation, [the ptotected
status] was the more likely reason

for the dismissal, or that the employer's ptoffeted

explanation is simply unworthy of ctedence." Tack u. Henkel Corþ.,973 F.2d 371.,374-75

23

(4th Cir. 1992). Plaintiff, in attempting to show that Defendant's articulated, admittedly
non-discriminatory reason for the RIF was pretext, argues that the decision

in

2007 to

transfer her to Student Affairs and out of DoIT was neither lø;ttonal not justifìed. She claims

that the 2007 transfer was "emphatically retahatory and not motivated by

business

rationality." €1.'. Br. at 16-1,7.) However, the 2007 transfer is not the subject of this
lawsuit, and even

if Plaintiff could show that the 2007 ttansfet was rctahatory

and without

legitimate reason, such showing is irtelevant to the claims in this case and does not prove
that the 2011 RIF was a pretext fot discdmination.

Plaintiff appears to argue that the fact that she was the only employee subject to the

RIF demonstrates pretext. However, she has cited no

cases

which suggest that a particular

number or percentage of employees must be tetminated to constitute a propet teduction in

force, or that a layoff of a single employee demonsttates pretext.

In

fact, a teduction in

force situation is generally dictated by business considerations; the numbet of positions
eliminated is not determinative on the pretext issue.

688, 695 (D. Md. 201,2) (quoting Conkwright u.
101,7-1,8

See Sagar u. Oracle

IT/esringhoase

Corþ., g14 F. Supp. 2d

Elec. CorP.,739 tr. Snpp. 1006,

(D. Md. 1990)) ("It is well-established that 'in employment disctimination

involving a teduction

in

force,

cases

it is not the court's duty to second guess the business

judgment of defendant's employees and managets' ot the manner in which the teduction in
force is catded out."). Plaintifls arguments, which are difficult to follow, and the evidence

24

offered

in suppott theteof, do not demonstrate

discrirninatory animus

or pretext in

the

decision to terminate PlaintifPs employment in 20L1 as part of a reduction-in-fotce.6
Because Plaintiff has failed

decision

to

to meet her burden to demonstrate that Defendant's

terminate her employment through the

discdmination, there is no genuine issue

of

RIF in

201,1,

was pretext fot

matertal fact as to this claim. This Coutt finds

that summary judgment is appropriate on Claim Fout.

4. Defendant's Evidentiary Objections

In its Reply Brief,
patagtaphs

Defendant raises sevetal evidentiary objections to cett^tî

of Plaintifls affidavit and to certain exhibits

attached

to PlaintifÎs

affìdavit.

Defendant also objects to Footnote 1 in Plaintiffs btief and moves to strike this footnote.

Defendant did
"objections" in

not ftle a separate motion to strike.
a

teply btief, without a

sepa.r^te pleading,

6

Because Defendant included its

it was not docketed

as a

motion to

Plaintiff focuses much of her argument on the actions of Linda Mc-Abee, who was hired as Vice
Chancellot for Human Resources at NCA.&T tn2007,just a few months befote the first time RIF
was consideted in connection with Plaintiff. In fact, Plaintiff argues that "the 2011 RIF was the
delayed rmplementation of a preplanned tetaliatory RIF that was interrupted because Defendant did
not have a qualified and trained Database Âdministrator Manager ready to step [up] and perform the
work that Plaintiff was performing to keep the R-25 database functioning ptopetly. Ftom all
appeatances, Defendant vias prepared to complete its retaliation binge against plaintiff in 2008 with
the RIF pâpers that were prepared and circulated, but not issued, in accordance with Lnda
McÂbee's 2008 'strategy."' (?1.'s Br. zt 77 .) Plaintiff offets no evidenti^ry of legal support fot this
theory. In fact, Plaintiff does not cite a single case in her opposition bdef, other than mentioning
McDonnell Doaglas without proper citation, and thus appatently does not contest the legal standatds
set fotth by Defendant in support of its motion for summary judgment. Plaintiff also does not
separately divide her argument on her two Title VII claims, making it diffrcult to discetn which
stâtements apply to which claim. ,\t any rate, Plaintiffs reliance on Mc,\bee's alleged "strategyJ'
developed in 2008, to eliminate Plaintiffs posiuon is unavailing in the context of the present lawsuit.
25

strike, and Plaintiff did not have the opportunity to tespond to the objections. ,\ccotdingly,
the court will not specifically rule on Defendant's objections.T

The court notes, however, thatan"afîtdavit. . . used to . . . oppose a motion must be
made on personal knowledge, set out facts that would be admissible in evidence, and show

that the afîtant. . . is competent to testi$r on the matters stated." Fed. R. Civ. P. 56(c)(a)
(fotmetly Fed. R. Civ. P. 56(e)); see Argo u. Blue

Cross and Blae Shield of

Kannt lnc.,452tr.3d

1193, 1200 (10th Cir. 2006) (noting that '[u]nder the petsonal knowledge standatd, an
afîtdavit is inadmissible

if the witness could not have actually perceived ot observed that

which he testifies to") (internal quotation marks omitted); Euans

u. Techs. Applications dz Sera.

Co., 80 F.3d 954, 962 (4th Cir. 1996) (noting that summary judgment affidavits cannot be

conclusory ot based upon heatsay). This court, thetefote, having examined the affìdavit and

exhibits in support thereof, has considered only those pottions which comply with Rule 56.
Sæ ll/illiams u. Computer Scis. Corþ.,

No. 1:08CV41,201,0 UL 3395293, at x4 (I\4.D.N.C. '\ug.

23,201,0) (unpublished) (Sharp, MJ.)

("fflh.

Coutt will not stdke these exhibits but will

consider them only to the extent that they comply with Fed. R. Civ. P. 56(c)(2) J'); Croues u.

7

The court is
that the Fedetal Rules of Civil Procedure ptovide fot a motion to sftike
^w^te
"pleadings." Fed. R. Civ. P. 7 (a). Because the challenged items hete ate not technically "pleadings"
as defined by Rule 7(a), Defendant likely considered a separate motion to be unnecessaly. However,
in its present posture, Plaintiff did not ltave an oppotunity to respond to the evidentiary objections.
,\t any t^te, discussed, the court will not sttike the materials identifred by Defendant but has
^s
considered Defendant's objections to such matedals in resolving the undetlying motion for
sunÌmary judgment. See Mct'-ad1en a. Da/<e Unia.,786 F. Supp. 2d887,921. n.9 (À{.D.N.C. 2011) (aÍ"d
in þart, rea'd in pørt and remanded on dffirenî grounds, Eaans u. Chalmers,703 F.3d 636 (4th Clr. 2012))
(frnding "no need to strike the exhibits submitted [in support of a motion to dismiss] because a
[m]otion to [s]tdke under Rule 12(f) must be directed to a pleading, not an exhibit to a btief," but
noting that the Court would consider objections to exhibits raised in motion to strike in evaluating
merits of undedying motion to dismiss); DeBerry u. Dauis, No. 1:08CV582,2010 WL 1610430, at *6
(dectining to grant motion to strike under Rule 12(f) because items challenged were not "pleadings"
as deFrned by Rule 7(a), but obsewing that Court could consider arguments raised in motion to
stdke

in carryrng out its substantive

review).
26

AT d2 T Mobiliry, No. 8:12-3329-TMC,
("f[]h.

court will exclude

^ny

201,4

WL

3809665, at

*2 (D.S.C. Aug. 1, 20'1,4)

improper exhibits in considering summary judgment issues

without fotmally entering an order striking them.').

III.

CONCLUSION
For the foregoing reasons, it is RECOMMENDED that Defendant's motion fot

stÍnma4/ judgment (Docket E.ttty 19) be GRANTED and the action be DISMISSED.

L
Stnrtr lügirrsêJudgr

Dutham, Notth Caroltna
Âugust 20,20'1,4

27