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Howard v. College of Albemarle

United States District Court, E.D. North Carolina, Northern Division

June 30, 2013

ROBERT HOWARD, Plaintiff,
v.
COLLEGE OF THE ALBEMARLE, and KANDIDEITEMEYER, Defendants.

          ORDER

          JAMES C. DEVER III Chief United States District Judge

         On July 29, 2016, College of the Albemarle and Kandi Deitemeyer ("defendants") moved for summary judgment [D.E. 38] in this employment-discrimination action and filed a memorandum in support [D.E. 41]. On September 28, 2016, Robert Howard, ("Howard" or "plaintiff'), who proceeds 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 judgment.

         I.

         On May 1, 2013, College of the Albemarle ("COA") hired Howard as the Vice President of Business and Administrative Services. See [D.E. 43] ¶ 1; [D.E. 59] ¶ 1; Compl. [D.E. 5-1] ¶ 7; Ans. [D.E. 6] ¶ 7. On April 5, 2013, Howard signed a 60-day contract. See [D.E. 68-4]. Under the contract, Howard was "to perform services as Vice President of Business and Administrative Services... commencing on the 1st day of May 2013, and continuing through the 30th day of June 2013." Id.

         COA's President, Kandi Deitemeyer ("Deitemeyer"), made the decision to hire Howard. Deitemeyer Aff. [D.E. 61-1] ¶ 13. When Deitemeyer decided to hire Howard, Deitemeyer knew that Howard was a male, over age 40, and older than her; however, neither Howard's gender nor his age had anything to do with Deitemeyer's decision to hire Howard. See Id. As 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.

         Howard's initial contract expired on June 30, 2013, after which he continued as an at-will employee. [D.E. 68-4]; see [D.E. 43] ¶ 6; [D.E. 59] ¶ 6.

         In September 2013, Deitemeyer evaluated Howard's performance by writing her own evaluation, obtaining an evaluation from Howard's colleagues, and obtaining Howard's own 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 following comments:

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

[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 6.

         On August 7, 2013, Howard completed a self-evaluation form. [D.E. 17-13]; see [D.E. 43] ¶¶ 7, 12; [D.E. 59] ¶¶ 7, 12. The form asked employees to rate themselves on a scale of 1 to 5 in 26 categories, and also asked open-ended questions. Howard gave himself 4's and 5's in each category and did not answer the open-ended questions. [D.E. 17-13].

         On an unspecified date, Deitemeyer told Howard she was concerned about 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 performed." Id.

         On September 11, 2013, Deitemeyer offered Howard a contract to continue his employment on a probationary basis through October 31, 2013. [D.E. 68-5]. On October 16, 2013, Howard signed the contract. Id. Other than the dates of employment and execution, Howard's May 2013 contract and the October 2013 probationary contract contained identical provisions, including the following:

All new staff appointments to positions and services of the institution are for a probationary period of nine (9) working months. An employee may be dismissed at anytime during the probationary period without notice or cause if it is felt that the employee is not capable of carrying out his/her assigned duties and responsibilities.
. . .
It is clearly understood, agreed, and acknowledged by the EMPLOYEE that the term of employment hereunder shall not extend beyond the term of employment hereinabove set forth, and there is no expectancy of employment or re-employment beyond the term provided in this agreement, nor has such been offered or implied. Therefore, by accepting this contract the employee acknowledges that he/she has no property interest or right to continued employment after the termination date for this contract. Although the employee may be asked to report to duty between contractual periods, such continued employment is terminable at will until the employee and President have both signed a new contract.
This contract for services supersedes any previously signed agreement, and may only be modified by an instrument of equal dignity herewith, and the interpretation of terms used herein shall be governed by the laws of the State of North Carolina.

Id.; see [D.E. 68-4].

         It was 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.

         On November 6, 2013, Wendy Brickhouse ("Brickhouse"), COA's Human Resources Director, sent an email to Howard and Deitemeyer that read:

Based on the discussion held late yesterday afternoon in the President's Office, I will not discuss the salary for Dennis with you unless you can treat me professionally and respect the current college policy. On several occasions, you have been disrespectful towards me and have created a hostile and offensive environment in our working relationship.

[D.E. 17-14].

         On November 8, 2013, Teresea Harris ("Harris"), another COA employee, complained to Deitemeyer about Howard. See [D.E. 17-15]. Harris complained about Howard's conduct at a training session attended by herself, Howard, and several other COA employees. Id. Harris made a suggestion in the meeting about the form of a report, and in response Howard, "in front of my coworkers and our trainer, went a little ballistic about getting exactly what he wanted." 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. 38-4] 5-9.

         Deitemeyer decided to terminate Howard's employment based on the above-described evaluations, complaints, and performance concerns, and Deitemeyer's determination that Howard was not demonstrating the leadership skills, abilities, or attributes necessary to perform effectively as COA's Vice President of Business and Administrative Services. See Deitemeyer Aff. ¶¶ 8, 12. On November 15, 2013, Deitemeyer and Brickhouse met with Howard to inform him of 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.

         COA has a grievance policy that allows employees (including at-will employees) to request a hearing before the Board of Trustees. See [D.E. 17-7]; [D.E. 17-2] ¶ 21. An employee may receive such a hearing if the employee submits a written request within ten days of his or her dismissal, demonstrating that "impermissible reasons" were involved in the dismissal. [D.E. 17-7] 5. The policy defines "impermissible reasons" to include various forms of discrimination, including discrimination based on sex, age, or disability. Id. at 2.

         Howard never requested a hearing in accordance with COA's grievance policy. [D.E. 43] ¶ 58; [D.E. 59] ¶ 58.[1] In a letter dated November 20, 2013, Howard complained to COA's Board 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. 38-3] 35.

         On 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 letter.

         At some 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 ...


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