GRAVES v. BANK OF AMERICA, N.A., No. 1:2013cv00663 - Document 41 (M.D.N.C. 2014)

Court Description: MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 9/22/2014; that Bank of America's motion for summary judgment (Doc. 25 ) be GRANTED. (Sheets, Jamie)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA VERONICA GRAVES, ) ) ) ) ) ) ) ) ) Plaintiff, v. BANK OF AMERICA, N.A., Defendant. 1:13cv663 MEMORANDUM OPINION AND ORDER THOMAS D. SCHROEDER, District Judge. In this employment action, Plaintiff Veronica Graves alleges discrimination and retaliation in violation of both the Americans with Disabilities Act ( ADA ), 42 U.S.C. § 12111 et seq., and the North Carolina Equal Employment Practices Act, N.C. Gen. Stat. § 143-422.1 et seq. Defendant s motion for summary judgment. is fully briefed and ready for decision. Before the (Doc. 25.) court is The motion For the reasons set forth below, the motion will be granted and the case dismissed. I. BACKGROUND The undisputed facts, viewed in the light most favorable to Graves, as the non-moving party, are as follows: 1 1 Throughout her briefing, Graves frequently fails to provide citation to any evidence in the record for key assertions. (See e.g. Doc. 28 at 2, 3, 5, 6, 8.) This practice violates Local Rule 7.2(a)(2) (providing that [e]ach statement of fact should be supported by reference to a part of the official record ) and renders her position subject to rejection on this basis alone. The court need not, and will not, scour the record for support for a party s position. See Graves began working customer service and center. for sales (Doc. 26-1 at 4.) Bank of America specialist at a in 2007 as Greensboro a call There, she responded to telephone calls, emails, and text messages from Bank of America customers. (Id. at 6.) In 2009, Graves began seeking medical attention for stress, anxiety, and depression and was prescribed medication. 28-1 at 12, 15, 19.) (Doc. She was placed on medical leave in the spring of 2011 and returned to work in May 2011, at which time she requested a reduction in her work schedule from eight hours a day to four-to-six hours a day, per her doctor s orders. (Doc. 26-1 at 41, 43, 49; Doc. 28-3 at 2.) Although the bank inquired condition, about the nature of her medical refused to provide that information. 2 Graves (Doc. 26-1 at 41 42.) Bank of America nevertheless approved her request in June 2011. (Id. at 41, 43.) At some unspecified point thereafter during the summer of 2011, Graves was asked to participate in a shift bid that scheduler involved a an chance eight-hour to work schedule, on but getting she the gave the schedule accommodated, which was resolved sometime in August 2011. (Id. Hughes v. B/E Aerospace, Inc., No. 1:12CV717, 2014 WL 906220, at *1 n.1 (M.D.N.C. Mar. 7, 2014). 2 Graves does believe that two coworkers Juwanna Jessup and Kristen McKellar knew that she had experienced stress, anxiety, and depression. (Doc. 28-1 at 15.) 2 at 42 45.) Graves remained on an abbreviated schedule, as she requested, from August 2011 until her doctor released her to return to work full-time in January 2012. Following several her charges of return to work discrimination Opportunity Commission ( EEOC ). (Id. at 43, 44.) full-time, with the Graves Equal filed Employment Her first charge was filed on February 13, 2012, although its basis is not in the record. 3 (Id. at 57 58; Doc. 6 ¶ 6.) Unable to find a violation, the EEOC issued its right to sue letter on March 26, 2012. 28-1 at 3.) Sometime in March 2012, Graves took another leave of absence and returned to work in around April 2012. 3 at 2.) (Doc. (Doc. 28- She filed another charge on May 29, 2012, alleging disability discrimination and retaliation in violation of the ADA. (Id. at 2.) This charge included her alleged failure to be accommodated from [o]n or around the month of May 2011 . . . until the month of August 2011. (Id.) On November 30, 2012, the EEOC responded that it could not establish any violation but provided Graves with a notice of her right to sue. (Id. at 4.) According to Graves, only one Bank of America employee Ebony Norway, as to which there is no evidence she was a decisionmaker - told her that they knew about her EEOC charges, but the EEOC had told Graves that her managers would learn of the charges. 3 Graves testified at her deposition that she filed an EEOC charge in February 2012 but has not provided a copy or any explanation of its basis. (Doc. 26-1 at 57-58.) The bank admits that she filed the charge on February 13, 2012. (Doc. 6 ¶ 6.) 3 (Doc. 26-1 at 53 54.) In November 2012, Graves immediate supervisor Tomekia Friday notified Bank of America s Fraud Investigations Group ( Fraud Investigations ) that she observed suspicious computer system (Doc. screen-prints 26-2 ¶¶ 2 4.) sent In from her Graves position work email account. a customer service as associate, Graves had access to the bank s confidential customer information, including account numbers, telephone numbers, and addresses. (Doc. 26-1 at 6 8.) Bank of America s Code of Ethics Policy, of which Graves was aware and on which she had been trained, directed employees not to access customer information or use customer information except for appropriate business purposes. (Id. at 15 16, 74.) Based on Friday s alert, Bank of America s Cyber Forensics Department reviewed email sent from Graves work account. 26-2 ¶ 5.) (Doc. The Cyber Forensics Department discovered that [a] number of emails that Ms. Graves forwarded to her personal email account contained customer names, customer account sensitive numbers, and information, addresses. including (Id.) On December 6, 2012, Patrick Williams, an investigator with Fraud Investigations, met with Graves and informed her of the results of the Cyber Forensics Department s review. 25 26; Id. ¶ 7.) (Doc. 26-1 at 19, Graves admitted to forwarding confidential 4 customer information from her work email account to her personal (Doc. 26-1 at 21; Doc. 26-2 ¶ 8.) 4 email account. Given Graves admission, Williams instructed her to delete all emails containing customer information and any hard copies of those emails. (Doc. 26-2 ¶ 10.) In accordance with the bank s procedures, Williams also asked that Graves provide a written statement of her actions and execute confirming deletion of the forwarded emails. 84; Doc. 26-2 ¶ 11.) an affidavit (Doc. 26-1 at 83 The bank s Code of Ethics Policy required employees to cooperate with all internal investigations into violations of Bank of America s Code of Ethics Policy. 26-1 at 14, 73.) (Doc. Graves responded that she would delete all emails and hard copies. (Id. at 25 27; Doc. 26-2 ¶ 12.) refused, however, to sign the affidavit. She (Doc. 26-1 at 27.) On December 12, 2012, Williams followed up with Graves, requesting that she sign the affidavit. (Id. at 28 29, 87.) He informed her that mere verbal confirmation that she had deleted all the emails and hard copies was insufficient and that she had until December 17, 2012, to sign the affidavit. 86-87.) 29, 86.) (Id. at 29 30, Again, Graves refused to sign the affidavit. (Id. at Williams followed up with Graves on December 18, 2012. (Id. at 30, 85.) Yet again, Graves refused to sign. 4 (Id.) Graves argues that she sent the emails in order to protect herself from undue harassment by her supervisor and claims that her supervisor knew of the activity, but her record citation (where provided) does not support this claim. (Doc. 28 at 2.) 5 After this third refusal, Resources Advisor Ashley Oates. ¶ 6.) Williams informed Oates Williams spoke Human (Doc. 26-2 ¶ 16; Doc. 26-3 of the situation, requested that Williams contact Graves again. Doc. 26-3 ¶ 7.) with and Oates (Doc. 26-2 ¶ 17; Consistent with Oates request, Williams asked Graves to sign the affidavit and informed her that failure to do so could result in her termination. 26-2 ¶ 18.) (Doc. 26-1 at 31-33; Doc. This accords with Bank of America s Code of Ethics Policy that states that a violation is grounds for termination. (Doc. 26-1 at 14 15, 69.) With both Charles Bridges (supervisor to Friday, Graves immediate supervisor) and Williams present, Graves refused to sign the affidavit. (Id. at 31 33; Doc. 26-2 ¶ 18 19.) On January regarding Graves. told Oates affidavit. and (Id.) 3, 2013, Williams, Oates, and Bridges (Doc. 26-2 ¶ 20; Doc. 26-3 ¶ 8.) Bridges that Graves refused to met Williams execute the Based on this information, Oates recommended that Graves be terminated. (Doc. 26-3 ¶ 9.) That same day, Bridges met with Graves and advised her that her employment was terminated for a violation of the bank s Code of Ethics. (Doc. 26-1 at 17 19; Doc. 26-3 ¶ 10.) After her termination, Graves filed a third EEOC charge on 6 February 26, 2013. 5 (Doc. 28-3 at 5 6.) In it, she claimed that she was terminated as a result of disability discrimination and retaliation. continued to (Id. at 5.) possess As recently as February 2014, Graves hard copies of emails containing confidential Bank of America customer information. (Doc. 26-1 at 36 37.) On July 23, 2013, Graves filed the present complaint alleging disability discrimination and retaliation under the ADA as well as violations of North Carolina public policy. 6 Graves alleges that Bank of America discriminated against her because of her disability by wrongfully discharging her and by denying reasonable accommodation of her work schedule. (Compl. ¶ 12.) She further alleges that Bank of America retaliated against her for filing charges with the EEOC. (Id. ¶¶ 13, 17.) Finally, she claims the bank s actions violated North Carolina s public policy against disability discrimination and retaliation. (Id. ¶ 19.) 7 5 In her testimony, Graves claims she also filed a fourth EEOC charge prior to February 2012. (Doc. 26-1 at 57 58.) No evidence of this charge appears in the record, however. 6 Graves complaint also states a separate claim for punitive damages. (Compl. ¶¶ 22 24.) A request for punitive damages is of course not a claim, but because Graves fails to raise a genuine dispute of material fact as to any of her claims, the request is moot. 7 Graves complaint makes passing reference to a hostile work environment. (Doc. 3 ¶¶ 6 7 ( hostile work environment ), 15 ( hostile treatment ), 20 21 ( hostile atmosphere and hostile environment ).) However, the complaint only states claims for 7 After discovery, Bank of America filed the present motion for summary judgment. (Docs. 25.) With Graves response (Docs. 28) and Bank of America s reply (Doc. 29), the motion is ready for consideration. II. ANALYSIS A. Standard of Review A court must grant a motion for summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the burden of establishing that no genuine dispute of material fact remains. Where, as here, the non-moving party has the burden of proof, the moving party is entitled to summary judgment if it demonstrates the absence of material disputed facts. Celotex Corp. v. Catrett, 477 U.S. 317, 322 23, 325 (1986). For the purposes of this motion, the court regards Graves statements as true and draws all inferences in her favor. Lobby, Inc., 477 U.S. 242, 255 (1986). Anderson v. Liberty But, she must establish disability discrimination and retaliation under the ADA. The parties have not addressed, nor does the court construe the complaint as raising, a hostile work environment claim under Title VII, much less a plausible one. See Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (complaint must state a plausible claim for relief that permits the court to infer more than the mere possibility of misconduct); Erickson v. Pardus, 551 U.S. 89, 93 (2007) ( Specific facts are not necessary in a complaint, but the complaint must at least give the defendant fair notice of what the . . . claim is and the grounds upon which it rests. ) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 8 more than the mere existence of a scintilla of evidence to support her position. Id. at 252. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Id. at 249-50. Ultimately, summary judgment is appropriate where the non-movant fails to offer evidence on which the factfinder could reasonably find for her. B. Id. at 252. ADA: Discrimination Claim Graves alleges that Bank of America failed to accommodate her disability and (Doc. 3 ¶ 12.) wrongfully terminated her because of it. Each claim is addressed below. 1. Wrongful discharge The ADA prohibits an employer from terminating a qualified employee because of her disability. 42 U.S.C. § 12112(a). To survive a motion for summary judgment, the employee must produce evidence sufficient for a factfinder to conclude that (1) she was a qualified individual with a disability ; (2) she was discharged ; (3) she was fulfilling [her] employer s legitimate expectations at the time of discharge ; and (4) the circumstances of [her] discharge raise a reasonable inference of unlawful discrimination. F.3d 143, 150 Presentations (4th LLC, Reynolds v. Am. Nat l. Red Cross, 701 Cir. 375 2012) F.3d 266, (quoting 273 n.9 Rohan v. Networks (4th Cir. 2004)). Failure to support any element will doom a claim on summary judgment. Id. Here, even assuming 9 (without deciding) that Graves was disabled, she has failed to produce evidence that she was meeting Bank of America s legitimate expectations or that the circumstances allow for a reasonable inference of discrimination. Bank of employees America s from Code access[ing] of Ethics customer Policy information prohibited or us[ing] customer information except for appropriate business purposes. (Doc. 26-1 at acknowledges 74.) that Graves it was prohibited aware her of this from policy sending and emails containing confidential customer information from her work email account to her personal email account. 38.) (Id. at 14 15, 18 19, She also admits that she violated the policy. (Id. at 21; Doc. 26-2 ¶ 8.) As to the former, Bank of America s Code of Ethics Policy warns that a violation could lead to termination, and Graves was aware of this. terminated, because (Doc. 26-1 at 14 15, 32 33.) Graves she had was advised violated the and When she was understood policy. (Id. that 17 19, it was 45 46 (acknowledging they terminated me on the basis of the Code of Ethics ).) Thus, her sending of the emails to her personal account was a sufficient basis for termination under the policy. Graves contends now that she was saving the emails protect herself from undue harassment by her supervisor. 28 at 2.) to (Doc. This assertion is not only unsupported by the present 10 record but, even if true, would not undermine the bank s ability to expect compliance with the policy. Graves has not shown that Bank of America s policy is not legitimate. See Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 518 (4th Cir. 2006) (concluding that plaintiff failed to show that his employer s expectations were somehow not legitimate ). ulterior motives is not That Graves may have harbored important. Rather, [i]t perception of the decision maker which is relevant. is the Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980). Further, Graves argues that it was reasonable for her to refuse to sign the bank s affidavit because of its text. 28 at 3.) This argument fails, too. (Doc. Factually, Graves cites only to the draft affidavit itself, and not to any testimony, to support the claim. 8 point. (See id.) Moreover, her argument misses the The undisputed facts show that the bank s Code of Ethics Policy warned that her violation was grounds for dismissal. noted, her conduct constituted a violation. The bank As also warned that it expected Graves to cooperate in the investigation and sign the affidavit that confirmed destruction of the emails. (See Doc. 26-1 at 14, 73.) policy and employer s failing to legitimate In either event, by violating the cooperate, Graves expectations. 8 failed to Consequently, meet her Graves Graves does attach copies of some emails in which she objects to signing the affidavit, which the court has reviewed. 11 failure to establish that she was performing her job at a satisfactory level dooms her prima facie case of discrimination under the ADA. See Jones v. Dole Food Co., 827 F. Supp. 2d 532, 547 (W.D.N.C. 2011) ( When an employee is aware of an employer s policy and violates it, he has not met the employer s legitimate expectations. ). Graves also fails to provide circumstances that would support a reasonable inference of disability discrimination in her discharge. claimed April Bank disability 2012 termination. deposition was America s last accommodation Graves leave of resolved some eight (Doc. that of 28-3 even she at 2.) does absence Graves not to before testified believe terminated her because of her disability. don t believe that. ).) 9 months her March from of that in the her her bank (Doc. 26-1 at 46 ( I And, even if she could establish such circumstances, she cannot demonstrate that the bank s proffered reason Graves violation of the Code of Ethics policy was pretextual. See Ennis v. Nat l Ass n of Business & Edu. Radio, 9 Graves testified: Q: So what is the basis for your belief that Bank of America terminated you on January 3, 2013, because of your disability? A: What is the basis that I I don t believe that. Q: So what do you believe? A: As far as what? That they terminated me on the basis of the Code of Ethics. (Id.) She also testified, I m not saying that they treated me different because of a disability. I don t know if they knew anything about that. (Id. at 50.) 12 Inc., 53 F.3d 55, 58 (4th Cir. 1995). failure to shifting meet her approach, evidence to prima Graves raise a facie has Thus, whether viewed as a case, failed reasonable or to under the elicit inference burden sufficient of unlawful discrimination. Therefore, Bank of America s motion for summary judgment as to Graves claim of wrongful discharge under the ADA will be granted. 2. The ADA Failure to accommodate also obligates employers to provide reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an . . . employee. 42 U.S.C. § 12112(b)(5)(A) (defining the phrase discrimination against a qualified individual on the basis of disability under 42 U.S.C. § 12112(a)). Here, Graves claims that Bank of America refused to reasonably accommodate her need for a reduced work schedule in May 2011. 1 at 41; Doc. 28-3 at 2.) (Compl. ¶ 12; Doc. 26- Bank of America contends the claim is time-barred and fails on the merits. Graves does not respond directly to either argument. An employee alleging a claim under the ADA must file a charge with the EEOC within one hundred and eighty days after the alleged unlawful employment practice occurred. 42 U.S.C. § 12117(a); 42 U.S.C. § 2000e-5(e)(1); see also J.S. ex rel. 13 Duck v. Isle of Wight Cnty. Sch. Bd., 402 F.3d 468, 475 n.12 (4th Cir. 2005). reasonable Graves claims that Bank of America denied her accommodation beginning in May 2011, but she testified that the bank agreed to accommodate her in June 2011 and then asked her to participate in a shift bid involving eight-hour shifts sometime between June 2011 and August 2011. (Compl. ¶ 12; Doc. 26-1 at 41, 43 45.) She does not complain of any failure to accommodate thereafter. Graves earliest EEOC charge was filed on February 2012, although the record fails to reflect its basis. 1 at 57 58; Doc. 6 ¶ 6.) 13, (Doc. 26- While Graves filed a later charge on May 29, 2012, alleging disability discrimination and failure to accommodate (Doc. 28-3 at 2), neither charge was timely as to the alleged May 2011 denial, even if the earlier charge is assumed to have properly raised a failure to accommodate claim. Thus, that claim is time-barred. As to the alleged denial of reasonable accommodation that allegedly occurred as a result of the shift bid request, the record fails to reflect any dates other than the request was made sometime between June 2011 and until August 2011. Therefore, it is difficult to determine whether her EEOC charges were timely based on that occurrence, assuming again that her earlier charge properly raised a failure to accommodate claim. See Johnson v. Glickman, 155 F. Supp. 2d 1240, 1246 (D. Kan. 14 2001) failed ( [D]efendant to timely bears comply the with burden to show administrative that plaintiff prerequisites. ); but cf. Darden v. Cardinal Travel Ctr., 493 F. Supp. 2d 773, 776 (W.D. Va. 2007) ( Although the Fourth Circuit has not ruled on which party holds the burden of establishing the timeliness of Title burden VII of cases, . . . establishing I find the that the timeliness of plaintiff the bears filing complaint where it is contested by the defendant. ). of the her However, the May 2012 charge s statement that the failure to accommodate occurred until the month of August 2011 suggests strongly that the claim is time-barred. (Doc. 28-3 at 2.) In any event, a plaintiff must file a claim within ninety days of receiving her right to sue letter. 42 U.S.C. § 2000e- 5(f)(1); see also Davis v. Va. Commonwealth Univ., 180 F.3d 626, 628 n.3 (4th Cir. 1999) ( Upon [EEOC] notification, i.e. a right to sue letter, the aggrieved party has 90 days to file suit. ). In this case, the evidence, viewed most favorably to Graves, is that she received her right to sue letters pertaining to her failure to accommodate claim on March 26, 2012, and November 30, 2012. 10 (Doc. 28-3 at 3 4.) She filed this lawsuit on July 23, 10 Graves February 2013 charge (Doc. 28-3 at 5), which was timely filed within ninety days of her termination, alleges no failure to accommodate by Bank of America. See Chacko v. Patuxent Inst., 429 F.3d 505, 509 (4th Cir. 2005) ( [I]f the factual foundation in the administrative charge is too vague to support a claim that is later presented in subsequent litigation, that claim will also be 15 2013. (Doc. 1.) Thus, under either scenario, her failure to accommodate claims are time-barred. Even if the claims were somehow timely, however, Graves has failed to establish accommodate under a the prima ADA. facie To case avoid for failure judgment, summary to a plaintiff must point to evidence sufficient for a factfinder to determine that (1) she was an individual with a disability within the meaning of the statute; (2) her employer had notice of her disability; (3) she could perform the essential functions of her job with reasonable accommodation; and (4) her employer refused to make such accommodations. Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013). Here, the record simply Bank fails to support Graves claim that of America failed to accommodate her requests. 11 Graves concedes that the bank granted her requests for a leave of absence and for a reduced work schedule. 42 45, 49.) temporary (Doc. 26-1 at In her brief to this court, she describes the work (Doc. 28 at 4.) restrictions implemented as quite workable. The only wrinkles seem to be that it took the procedurally barred. ). That charge, therefore, does not preserve her failure to accommodate claim. 11 It appears doubtful that Bank of America had notice of Graves disability. Graves herself states: I m not saying that they treated me different because of a disability. I don t know if they knew anything about that. (Doc. 26-1 at 50.) She also declined to provide Bank of America with the medical reason for her requested reduced work schedule. (Id. at 41 42.) 16 bank approximately a couple of weeks to decide whether to grant the request and that thereafter (sometime during the summer of 2011) she was asked to participate in a shift bid for a full schedule. But these facts do not save her claim. Graves America concedes the that nature of predicated her request. what my illness was. information. ).) of her her had refused claimed to illness tell upon Bank which of she (Id. at 41-42 ( They wanted to know And I wasn t willing to give them that She was obligated, however, to inform the bank disability accommodate it. she so it could assess whether and how to See Schneider v. Giant of Md., LLC, 389 F. App x 263, 270 (4th Cir. 2010) (citing EEOC v. Fed. Express Corp., 513 F.3d 360, 369 (4th Cir. 2008)) (observing that the employee must inform the employer of both the disability and the employee s need for accommodations for that disability. ). 12 As to the request to participate in the shift bid, Graves herself testified that she gave her scheduler a chance to work on getting the schedule accommodated, which was resolved in August 2011. (Doc. 26-1 at 42 45.) Thereafter, Graves was placed shorter she on the hourly schedule 12 desired until her Unpublished opinions of the Fourth Circuit are not precedential but are cited for their persuasive reasoning. See Collins v. Pond Creek Mining Co., 468 F.3d 213, 219 (4th Cir. 2006) (recognizing that we ordinarily do not accord precedential value to our unpublished decisions and that such decisions are entitled only to the weight they generate by the persuasiveness of their reasoning (citation omitted)). 17 doctor cleared her for full-time duty in January 2012. 44 45.) (Id. at Graves has not demonstrated why the bank s request for information and any de minimis delay was unreasonable under the circumstances. of showing reasonable Therefore, Graves has failed to meet her burden that Bank of accommodation, America and failed the to bank s provide motion her for with summary judgment on this claim will be granted. 13 C. ADA: Retaliation Claim Graves also alleges that Bank of America terminated her in retaliation for filing a charge of discrimination with the EEOC on May 29, 2012. (Compl. ¶ 12.) Under the ADA, an employer may not terminate an employee for making a charge of discrimination. 42 U.S.C. § 12203(a). To avoid a motion for summary judgment on her ADA retaliation claim, Graves engaged in must a point protected to facts activity, indicating (2) the that (1) employer she acted adversely against her, and (3) there was a causal connection between the protected activity and the asserted adverse action. Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011). The filing of an EEOC charge is an activity protected under the ADA. 42 U.S.C. § 12203(a). facie case and Bank of If Graves can establish a prima America 13 offers a legitimate non- In light of the court s conclusion, Graves argument that even if she were not disabled she was perceived to be (Doc. 28 at 4 5) need not be addressed. 18 discriminatory reason for her termination, Graves bears the burden of providing evidence that the bank s stated reason is pretext for a discriminatory one. 145, 151 (4th Cir. 2003). King v. Rumsfeld, 328 F.3d Under this standard, Graves claim for retaliation fails. As to sufficient requisite the prima evidence causal facie from case, which connection. a Graves fails factfinder Employer to could knowledge of provide find the an EEOC charge is absolutely necessary for a finding of retaliation. See Dowe v. Total Action Against Poverty, 145 F.3d 653, 657 (4th Cir. 1998). 26-1 at Graves evidence on this score is marginal. 53 54 (relying on Graves statement that the (Doc. EEOC explained that the employer would be informed of the charge and on her testimony that Bridges and Friday told her, Nobody s harassing you, so you can stop saying that ).) 14 Even further, the passage of more than seven months between Graves filing of her EEOC charge on May 29, 2012, and her termination in January 2013, is simply too long to support a finding of retaliation. See Hooven-Lewis v. Caldera, 249 F.3d 259, 278 (4th Cir. 2001) ( A six month lag is sufficient to negate any inference of causation. ); Jones, 827 F. Supp. 2d at 554 ( [C]omplaints of 14 While Graves deposition suggests that Bridges and Friday at least knew that she had complained of harassment (Doc. 26-1 at 54), there is no evidence that they knew of her EEOC charge. 19 retaliation are considered stale after only a few months. ). As a result, Graves fails to meet her prima facie case. Moreover, as noted earlier, Bank of America has provided a legitimate non-discriminatory reason for her termination the violation of the bank s Code of Ethics Policy and Graves has not provided any evidence this was pretextual. It is not this court s province to second-guess this decision absent evidence of pretext. See Holland v. Wash. Homes, Inc., 487 F.3d 208, 217 18 (4th Cir. 2007). Therefore, Bank of America s motion for summary judgment on this claim will be granted as well. D. State Law Claims With facts identical to her federal claims, Graves pleads state law claims based on an alleged violation of North Carolina s public policies against disability discrimination and retaliation. abridgement North Carolina law prohibits discrimination or on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more considering employees. state law N.C. Stat. discrimination Gen. § 143 422.2. and retaliation When claims, North Carolina look[s] to federal decisions for guidance in establishing evidentiary standards and principles of law to be applied in discrimination cases. N.C. Dep t of Correction v. Gibson, 301 S.E.2d 78, 82 (N.C. 1983); see also Williams v. Avnet, Inc., 910 F. Supp. 1124, 1137 (E.D.N.C. 1995) (applying 20 Gibson to a state law disability claim). Moreover, no retaliatory discharge claim exists under North Carolina public policy. 607 See Stout v. Kimberly Clark Corp., 201 F. Supp. 2d 593, (M.D.N.C. 2002) (holding that no North Carolina court decision . . . has ruled that a discharge as retaliation for an employee s protest of the employer s discriminatory activities violates the state s public policy ). of material fact exists regarding Because no genuine issue Graves federal disability discrimination and retaliation claims, therefore, her state law claims similarly fail. III. CONCLUSION For the reasons stated, therefore, IT IS ORDERED that Bank of America s motion for summary judgment (Doc. 25) be GRANTED. /s/ Thomas D. Schroeder United States District Judge September 22, 2014 21

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