United States District Court, E.D. North Carolina, Northern Division
C. DEVER III Chief United States District Judge
29, 2016, College of the Albemarle and Kandi Deitemeyer
("defendants") moved for summary judgment [D.E. 38]
in this employment-discrimination action and filed a
memorandum in support [D.E. 41]. On September 28, 2016,
Robert Howard, ("Howard" or "plaintiff'),
who proceeds pro se, responded in opposition [D.E. 58]. On
October 17, 2016, defendants replied [D.E. 68]. As explained
below, the court grants defendants' motion for summary
1, 2013, College of the Albemarle ("COA") hired
Howard as the Vice President of Business and Administrative
Services. See [D.E. 43] ¶ 1; [D.E. 59] ¶ 1; Compl.
[D.E. 5-1] ¶ 7; Ans. [D.E. 6] ¶ 7. On April 5,
2013, Howard signed a 60-day contract. See [D.E. 68-4]. Under
the contract, Howard was "to perform services as Vice
President of Business and Administrative Services...
commencing on the 1st day of May 2013, and continuing through
the 30th day of June 2013." Id.
President, Kandi Deitemeyer ("Deitemeyer"), made
the decision to hire Howard. Deitemeyer Aff. [D.E. 61-1]
¶ 13. When Deitemeyer decided to hire Howard, Deitemeyer
knew that Howard was a male, over age 40, and older than her;
however, neither Howard's gender nor his age had anything
to do with Deitemeyer's decision to hire Howard. See
Id. As CO A President, Deitemeyer does not have to
obtain permission from the Board of Trustees to hire,
discipline, or terminate employees. [D.E. 17-2] ¶ 21;
see [D.E. 43] ¶ 4; [D.E. 59] ¶ 4. The COA personnel
policy states that all employees, when not employed under a
contract, may be terminated at will. [D.E. 17-2] ¶ 21;
see [D.E. 43] ¶ 5; [D.E. 59] ¶ 5.
initial contract expired on June 30, 2013, after which he
continued as an at-will employee. [D.E. 68-4]; see [D.E. 43]
¶ 6; [D.E. 59] ¶ 6.
September 2013, Deitemeyer evaluated Howard's performance
by writing her own evaluation, obtaining an evaluation from
Howard's colleagues, and obtaining Howard's own
self-evaluation. See Deitemeyer Aff. ¶ 8; [D.E. 17-11];
[D.E. 43] ¶ 7; [D.E. 59] ¶ 7. The evaluation
Howard's colleagues provided to Deitemeyer included the
• "I think he is trying but seems overwhelmed"
• "[D]oes not come prepared to the meetings - does
not have material with him."
• "[W]as concerned with his response concerning his
area. (In the heat of the moment, told me 'no one was
going to tell me how to organize/staff his area' - his
tone really surprised me. I also received a telephone call
concerning Bob's unprofessional conduct. I have had
several staff members share concerns with me - ex.:
forgetful, delegates 'his' work to other staff
members have concerns about his overall performance....
• "Lacks in organization of office and often cannot
find or misplaces documents of importance. Seems to have
difficulty recalling conversations, e-mails, etc. regarding
work related situations and has to be reminded constantly of
history of situations."
• "Forgetful. Not organized. Has not gotten any
concept of how things are run at COA. Does not have any
comprehension as to his duties."
• "I personally feel Mr. Howard does not respect
the employees under him. He does not value their history or
knowledge.....It appears he has severe problems with his
memory. . . . He doesn't remember whole conversations. .
. .You can't trust that he has done what he said he
would. . . "
• "He does delegate items, but often it is
ineffective and he doesn't seem to be aware of the
additional stress his delegation causes his staff.... Bob has
had difficulty learning and managing the many hats of his
[D.E. 17-12] 4-5. Deitemeyer's own written evaluation
reflected some of the same concerns as Howard's
colleagues, as well as her own concerns. See [D.E. 17-11].
Deitemeyer found "that [Howard] is much more comfortable
in the 'big picture' and abstract than with concrete,
and detail oriented nuances of the business office
operations." Id. at 1. Deitemeyer also noted
that "[i]n his first 90 days at CO A, I anticipated
much deeper and cognizant outcomes to the body of work he
inherited; however his approach to his role has been
sporadic, confused and at times disorganized."
Id. Deitemeyer also found that "[Howard] is
struggling in his new role at COA. He is well liked, but
overall there is not a momentum of confidence for him in this
role. His style of leadership has been very different and
somewhat difficult for his division." Id. at 3.
Deitemeyer also noted that she had "concerns about
[Howard's] ability to thrive in the role long term"
and that she planned to "monitor his performance and fit
with COA for the next several months. In short, my confidence
and that of his team should be much higher given the work
experience he brought to the college and this role." Rat
August 7, 2013, Howard completed a self-evaluation form.
[D.E. 17-13]; see [D.E. 43] ¶¶ 7, 12; [D.E. 59]
¶¶ 7, 12. The form asked employees to rate
themselves on a scale of 1 to 5 in 26 categories, and also
asked open-ended questions. Howard gave himself 4's and
5's in each category and did not answer the open-ended
questions. [D.E. 17-13].
unspecified date, Deitemeyer told Howard she was concerned
about bis performance. Deitemeyer Aff. ¶ 9. Deitemeyer
explained that Howard was not able to provide her with the
"informed recommendations, reliable data, and confident
financial and cost analysis" Deitemeyer needed as
President and that Howard was more concerned about abstract
issues. Id.; [D.E. 43] ¶ 23; [D.E. 59] ¶
23. During the meeting, Deitemeyer tried to make clear to
Howard that he "had not built sufficient confidence and
trust" with his team or with her and that his
performance had to improve "very quickly."
Deitemeyer Aff. ¶ 9. Deitemeyer believed that Howard
lacked "a sufficient understanding, knowledge or focus
on the details of his job, " but she did not believe
these issues related to a memory problem or any type of
disability. Id. Nonetheless, during the meeting
Howard said he would have his memory tested. Id.
Deitemeyer did not ask Howard to get his memory tested and
"did not care about whether he had any type of test
September 11, 2013, Deitemeyer offered Howard a contract to
continue his employment on a probationary basis through
October 31, 2013. [D.E. 68-5]. On October 16, 2013, Howard
signed the contract. Id. Other than the dates of
employment and execution, Howard's May 2013 contract and
the October 2013 probationary contract contained identical
provisions, including the following:
All new staff appointments to positions and services of the
institution are for a probationary period of nine (9) working
months. An employee may be dismissed at anytime during the
probationary period without notice or cause if it is felt
that the employee is not capable of carrying out his/her
assigned duties and responsibilities.
. . .
It is clearly understood, agreed, and acknowledged by the
EMPLOYEE that the term of employment hereunder shall not
extend beyond the term of employment hereinabove set forth,
and there is no expectancy of employment or re-employment
beyond the term provided in this agreement, nor has such been
offered or implied. Therefore, by accepting this contract the
employee acknowledges that he/she has no property interest or
right to continued employment after the termination date for
this contract. Although the employee may be asked to report
to duty between contractual periods, such continued
employment is terminable at will until the employee and
President have both signed a new contract.
This contract for services supersedes any previously signed
agreement, and may only be modified by an instrument of equal
dignity herewith, and the interpretation of terms used herein
shall be governed by the laws of the State of North Carolina.
Id.; see [D.E. 68-4].
unusual for Deitemeyer to issue such a brief contract
extension to a member of her leadership team, but she did so
because she had serious concerns about Howard's
performance. Deitemeyer Aff. ¶ 10. After Howard's
probationary contract expired on October 31, 2013, Howard did
not sign any new employment contract.
November 6, 2013, Wendy Brickhouse ("Brickhouse"),
COA's Human Resources Director, sent an email to Howard
and Deitemeyer that read:
Based on the discussion held late yesterday afternoon in the
President's Office, I will not discuss the salary for
Dennis with you unless you can treat me professionally and
respect the current college policy. On several occasions, you
have been disrespectful towards me and have created a hostile
and offensive environment in our working relationship.
November 8, 2013, Teresea Harris ("Harris"),
another COA employee, complained to Deitemeyer about Howard.
See [D.E. 17-15]. Harris complained about Howard's
conduct at a training session attended by herself, Howard,
and several other COA employees. Id. Harris made a
suggestion in the meeting about the form of a report, and in
response Howard, "in front of my coworkers and our
trainer, went a little ballistic about getting exactly what
he wanted." Id. Harris complained that
Howard's behavior "is totally unprofessional
behavior in a 'Professional' employer against his
subordinate employee." Id. Susan Gentry
("Gentry"), another COA employee, attended the
meeting when Howard "went a little ballistic" at
Harris, and Gentry corroborated Harris's account. [D.E.
decided to terminate Howard's employment based on the
above-described evaluations, complaints, and performance
concerns, and Deitemeyer's determination that Howard was
not demonstrating the leadership skills, abilities, or
attributes necessary to perform effectively as COA's Vice
President of Business and Administrative Services. See
Deitemeyer Aff. ¶¶ 8, 12. On November 15, 2013,
Deitemeyer and Brickhouse met with Howard to inform him of
Deitemeyer's decision to terminate his employment at COA.
See Id. ¶ 12; [D.E. 43] ¶¶ 52, 54;
[D.E. 59] ¶¶ 52, 54. Deitemeyer handed Howard a
termination letter, which states:
As you are aware, you joined the college on May 1, 2013, as
the Vice President of Business and Administrative Services.
In accordance with College policy, you received a 90 day
evaluation, which included feedback from colleagues,
subordinates and myself. The evaluation showed several areas
which needed attention as you moved forward in this critical
role at College of The Albemarle. As an outcome, you were
extended a contract only through October 31, 2013,
which has since ended. Thus, your contract has expired and
you are currently serving at will.
After very careful consideration, I have decided not to
continue your employment with the College. Therefore,
effective immediately, the College will be moving in another
direction to advance the mission of the college, as we vision
toward becoming a premier community college.
Thank you for your service to the College. I wish you the
best in your future endeavors.
[D.E. 17-16] (emphasis in original). During the meeting
Deitemeyer did not mention Howard's age, sex, or memory,
although the letter referenced the evaluation which included
COA employees' comments about Howard's memory. [D.E.
43] ¶ 56; [D.E. 59] ¶ 56.
a grievance policy that allows employees (including at-will
employees) to request a hearing before the Board of Trustees.
See [D.E. 17-7]; [D.E. 17-2] ¶ 21. An employee may
receive such a hearing if the employee submits a written
request within ten days of his or her dismissal,
demonstrating that "impermissible reasons" were
involved in the dismissal. [D.E. 17-7] 5. The policy defines
"impermissible reasons" to include various forms of
discrimination, including discrimination based on sex, age,
or disability. Id. at 2.
never requested a hearing in accordance with COA's
grievance policy. [D.E. 43] ¶ 58; [D.E. 59] ¶
In a letter dated November 20, 2013, Howard complained to
COA's Board of Trustees about CO A's management,
operations, and personnel administration and praised his own
accomplishments. [D .E. 17-17]. In the letter, Howard noted
that his evaluation contained "several references to
[his] memory" but that he believed those were "just
unkind remarks." Id. at 8. Howard also stated
that Deitemeyer "[i]ndicated that I am much older than
she, " but did not claim that he had been fired because
of his age. Id. Howard wrote that he believed the
current personnel structure at COA gave too much power to the
president and thereby created "a place of fear and
intimidation." See Id. at 11; see also [D.E.
April 4, 2014, Howard sent another letter to the Board of
Trustees. [D.E. 43] ¶ 61; [D.E. 59] ¶ 61. Again,
Howard did not state in the letter that he believed that any
impermissible reasons motivated his termination. [D.E. 43]
¶ 61; [D.E. 59] ¶ 61. The Board of Trustees did not
hold a grievance hearing concerning Howard's second
point after April 4, 2014, Howard filed a charge of
Discrimination with the EEOC. See [D.E. 38-3] 36;
[D.E. 43] ¶ 62; [D.E. 59] ¶ 62. Howard alleged sex,
age, and disability discrimination. See Compl. ¶ 114. On
June 23, 2015, the EEOC ...