Mann v. First Union National Bank , 185 F. App'x 242 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1449
CYNTHIA MANN,
Plaintiff - Appellant,
versus
FIRST UNION NATIONAL BANK; FIRST UNION
SECURITIES, INCORPORATED,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Carl Horn III,
Magistrate Judge. (CA-00-264-H)
Argued: March 14, 2006 Decided: June 13, 2006
Before WIDENER, NIEMEYER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas Drake Garlitz, GARLITZ & WILLIAMSON, P.L.L.C., Charlotte,
North Carolina, for Appellant. Marylin E. Culp, LITTLER MENDELSON,
P.C., Charlotte, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Cynthia Mann appeals from the district court’s award of
summary judgment to her former employers, defendants First Union
National Bank and First Union Securities, Inc. (collectively,
“First Union”), in her employment discrimination action. Although
Mann initially sought relief under several theories, on appeal she
principally challenges only the court’s award of summary judgment
on her two retaliation claims, brought under Title VII of the Civil
Rights Act of 1964. As explained below, we affirm.1
I.
Mann was employed by First Union for over five years, from May
17, 1993, until her termination on September 17, 1998.2 Prior to
her employment with First Union, she obtained a Masters of Business
Administration from the Harvard Business School and worked for four
years at the Salomon Brothers investment banking firm in New York
1
Mann also appeals from the district court’s partial denial of
her first motion to strike documents filed by First Union, as well
as its denial of her second and third motions to strike. We have
carefully reviewed those challenged rulings, perceive no abuse of
discretion, and are content to affirm them on the sound reasoning
of the district court. See Mann v. First Union Nat’l Bank, No. CA-
00-264-H, slip op. at 4-21 (M.D. N.C. Mar. 17, 2005) (Memorandum
Opinion and Judgment).
2
By virtue of a 2001 merger, First Union has been integrated
into Wachovia Bank, National Association. See Wachovia Bank, Nat’l
Ass’n. v. Schmidt, 445 F.3d 762, 765 n.1 (4th Cir. 2006). At all
times relevant and in all court documents pertaining to this
proceeding, the defendants have been referred to as “First Union,”
and we refer to them as such herein.
2
City. In October 1994, Mann was assigned to First Union’s newly
formed Commercial Real Estate Finance Group (the “CREF Group”),
where she was employed as a Junior Trader of Commercial Mortgage
Backed Securities (“CMBS”).3 According to Mann’s affidavit, she
was one of two women employed in a “key role” within the CREF
Group. See J.A. 566.4 In May 1995, Steve Jones, who had been the
Primary CMBS Trader, was transferred to a different position within
First Union, and Mann assumed the role of Primary CMBS Trader. In
that position, Mann had numerous responsibilities, which included
acting as a trade manager and overseeing risk management
(“hedging”).
From the outset of Mann’s employment in the CREF Group at
First Union, she had difficulties communicating and interacting
amicably with her co-workers and with management. Her evaluations
consistently reflected that her work was superior, but that her
interpersonal skills were lacking. Over time, tensions built
between Mann and management concerning the scope of her duties.
Mann apparently saw herself primarily as a “trader,” responsible
for high-risk investments, while First Union’s management insisted
3
Because Mann appeals from the district court’s award of
summary judgment to First Union, the facts are presented in the
light most favorable to her. See Seabulk Offshore, Ltd. v. Am.
Home Assurance Co., 377 F.3d 408, 418 (4th Cir.2004).
4
Our citations to “J.A. ___” refer to the contents of the
Joint Appendix filed by the parties in this appeal.
3
on restricting Mann to the less-glamorous task of hedging.5 At
various times in January 1996, and again in January and February
1997, Mann informed her supervisors, Mike Greco and Larry Brown,
that she was interested in promotions (which, according to Mann,
were not normally publicized at First Union), and she also told her
superiors that she was dissatisfied with her compensation.
According to Mann’s deposition, First Union hired Peter Chan
into the CREF Group in 1996, and thereafter began reassigning
Mann’s duties to him. Mann testified that in March and April 1997
she had conversations with Greco and Brown in which they
“clarified” her role with First Union by giving her “trading
responsibilities” to Chan. J.A. 394. Thereafter, on July 22,
1997, Mann met with Greco to discuss why she had not received a
mid-year promotion. At the meeting, Mann told Greco that she felt
that she was being discriminated against because of her gender.
Greco “became infuriated, ordered [her] out of his office and told
[her] he would never speak with [her] again.” J.A. 568. Upon
leaving Greco’s office, Mann went directly to the office of Brian
Simpson, Greco’s supervisor, to schedule an appointment. As she
5
Apparently, there is a sharp divide within the investment
banking industry between “hedgers” and “traders.” Although both
hedgers and traders buy and sell investments, a trader is expected
to invest actively and aggressively, generating profits, while a
hedger is expected to invest more conservatively and maintain
market positions. It also appears that, in the industry, traders
are generally better paid and more respected than hedgers.
4
waited to see Simpson, “Greco came down the hall shouting to . . .
Simpson that he wanted [Mann] fired.” Id. at 569.
On July 28, 1997, Mann filed an internal complaint with First
Union’s Human Relations Department, whereby she requested an
investigation into whether she had been the victim of gender
discrimination. Her internal complaint was premised, in part, on
her assertion that the “Real Estate Products Group Management
promoted and/or gave less qualified men roles that [Mann] held or
in which [she] was entitled to function.” J.A. 577.
Thereafter, Vaughn Moore, First Union’s Assistant Vice
President for the Human Resources Division, investigated Mann’s
internal complaint. On October 29, 1996, Moore wrote Mann to
inform her that he had completed his investigation and, on the
basis thereof, had determined that her discrimination claims were
unsubstantiated. By his letter, Moore asserted that Mann had been
relegated to hedging duties due to a combination of “practical”
concerns and her inability to work well with clients and customers.
J.A. 579. Additionally, Moore related his conclusion that “a
primary factor in the conflict between [Mann] and management . . .
[was] poor communication and [a] lack of clarity” concerning her
role. Id. at 580.6 Moore informed Mann that steps would be taken
6
In response to Mann’s concerns that Moore was not qualified
to investigate her complaints because he did not fully understand
the commercial trading business, First Union hired an outside
securities lawyer, Jeffery Davis, to independently investigate
Mann’s complaint. Following his investigation, Davis agreed with
5
in order to improve her working situation. Pursuant to Moore’s
recommendation, Mann met with Brown and Simpson on November 6,
1997. At that meeting, Brown told Mann that, thenceforth, she
would “only be a hedger.” J.A. 569.
On January 22, 1998, Mann received her last formal evaluation
at First Union. This evaluation was completed by Brown, who rated
Mann’s overall performance as “Meets Expectations.” J.A. 361. By
that evaluation, Brown enumerated specific areas of needed
improvement for Mann to focus on during the first quarter of 1998,
directing her to “[s]how sensitivity to the roles of [her] peers,
supervisors, and subordinates”; to “[b]e careful not to encroach on
other employees’ responsibilities”; and to “[a]pproach co-workers
in a positive, productive manner.” Id. Brown’s evaluation further
advised Mann that she needed to “understand and accept that
decisions may be made by management that incorporate factors beyond
[Mann’s] immediate scope,” and that flexibility would “be a
critical success factor” for her. Id. By their signatures on the
evaluation, Brown and Mann acknowledged that they had “discussed
performance results and established performance goals and
development plans for 1998.” Id.
In February 1998, Brown and Greco left First Union.
Thereafter, First Union appointed Barry Reiner and Wes Jones to
replace Brown and Greco as Mann’s supervisors. Throughout the
Moore’s conclusions.
6
Spring and Summer of 1998, Mann and First Union’s management
continued to have difficulties relating to Mann’s constant
frustration at having been relegated to the position of hedger.
On September 9, 1998, Mann sent Reiner a memorandum,
contending that First Union had discriminated against her on the
basis of her gender by offering a woman named Nicole Feldman a
position within the CREF Group without first consulting Mann. The
next day, September 10, 1998, Mann sent Reiner a second memorandum,
complaining that her exclusion from an internal sales meeting
amounted to gender discrimination. Reiner responded to Mann by
email on September 10, 1998, stating that he and Mann needed to
discuss the issues raised in her memoranda in person, and also
asserting that (1) Mann had been given the opportunity to express
her views regarding Feldman and that Reiner simply disagreed with
her; (2) Feldman was not hired as part of an “agenda,” but rather
“to get much needed help on board quickly”; (3) Mann continued to
misstate her role as “senior trader,” when, in fact, her function
was “to be primarily hedge trading”; (4) the other positions Mann
wished to fill would not be her “highest and best use”; and (5)
Mann needed to “have more of a team oriented focus.” J.A. 369-70.
That same day, September 10, 1998, Mann sent Reiner another
memorandum, by which she asserted that Tim Martin, a member of the
CREF Group, had been disrespectful to her. According to this
memorandum, Martin was on the phone while Mann was working at her
7
adjacent computer with a member of the technical support staff and,
during the course of his conversation, Martin turned towards Mann
and said (to the person on the phone) “I sit next to a nosey busy
body [sic] who sits on this desk and listens to everything I say.
I’ll have to call you from another phone off the desk.” J.A. 372.
In her September 10, 1998 memorandum, Mann related that she was
disturbed that “this level of disrespect is tolerated in our
environment,” and demanded a “verbal apology” from Martin and that
“First Union’s management . . . stop condoning such behavior.” Id.
Meanwhile, September 1998 turned out to be a particularly
volatile time in the investment banking business. The bond market
slipped, causing financial institutions, including First Union, to
experience substantial losses. By his affidavit, Wes Jones stated
that he informed First Union’s hedgers in September 1998 that the
business was experiencing heavy losses, and that he needed accurate
information concerning everyone’s market position “on a daily and
even hourly basis.” J.A. 204. In so doing, Jones advised that he
expected every hedger’s market position to be slipping, and that he
would not look negatively on anyone who was losing money. Jones
further asserted that, given the rapidly changing market
conditions, he needed “a very accurate picture of where [everyone]
stood in the market.” Id.
According to Jones, “everyone, except Mann, marked down their
positions as accurately as they could with the information
8
available to them.” J.A. 204. Jones stated that “[w]e began to
suspect that Mann was mis-marking or mis-reporting her position
because her reports did not match what was happening in the
market.” Id. After investigating, Jones and other managers
“determined that the gains Mann was reporting were on her short
positions only and failed to reflect losses on her long positions.”
Id. Jones concluded that Mann was reporting her market position
“without representing the full loss in her long position —
something that is an unacceptable practice.” Id.
On September 17, 1998, Mann met with Jones, Reiner, and Dan
Comisar of the Human Resources Division. At that meeting, Mann was
informed that she was being terminated for failing to accurately
report her market position. According to Mann, she protested that
her reports were all correct, and Jones informed her that her
termination was “the result of a series of things.” J.A. 573.
Specifically, Jones stated that Mann’s termination was also due to
her failure to accept her role as a hedger, and that it had “a lot
to do with last week.” Id. Mann responded that she should not be
fired for complaining about gender discrimination, and Reiner
asserted that her complaints were not the reason for her
termination. According to Mann, Jones subsequently stated that
Mann was being terminated “because of” her recent memoranda, which
Jones described as “insubordinate, disruptive, and distracting.”
Id.
9
On March 8, 1998, Mann filed a complaint with the Equal
Opportunity Employment Commission (the “EEOC”). On November 10,
1999, the EEOC issued Mann a right to sue letter. Thereafter, on
February 7, 2000, Mann instituted this civil action in the Northern
District of Illinois. By her Complaint, she initiated claims under
Title VII and state tort law, and sought back pay, front pay,
damages for mental anguish and suffering, punitive damages, an
award of attorneys’ fees and costs, and “[s]uch other and further
relief as this Court may deem just and proper.” J.A. 17-18. By
Order of May 18, 2000, the case was transferred to the Western
District of North Carolina.7
Following discovery proceedings, First Union, on December 1,
2003, filed a motion for summary judgment in the district court.
And, by Order of March 17, 2005, the court awarded the summary
judgment sought by First Union. See Mann v. First Union Nat’l
Bank, No. CA-00-264-H (M.D. N.C. Mar. 17, 2005). On April 15,
2005, Mann timely noted her appeal of the district court’s ruling,
and we possess jurisdiction pursuant to 28 U.S.C. § 1291.
7
After this case was transferred to the Western District of
North Carolina, the parties consented to have the matter handled
exclusively by a United States Magistrate Judge, in accordance with
28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73(b). The
case was initially assigned to then-Magistrate Judge McKnight, who
retained the matter upon receiving his Commission as a district
judge on August 25, 2003. When Judge McKnight died prematurely on
November 27, 2004, the case was reassigned to Magistrate Judge
Horn, who rendered the decision from which this appeal emanates.
10
II.
We review de novo an award of summary judgment, viewing the
facts and inferences drawn therefrom in the light most favorable to
the non-moving party. Baqir v. Principi, 434 F.3d 733, 741 (4th
Cir. 2006). Summary judgment is not appropriate unless “‘the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, show that there is no
genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law.’” Id. (quoting Fed. R.
Civ. P. 56(c)) (alteration and internal quotation marks omitted).
III.
On appeal, Mann contends that the district court erred in
awarding First Union summary judgment on her two Title VII
retaliation claims, the first of which relates to her demotion to
the position of hedger (the “retaliatory demotion claim”), and the
second of which pertains to her termination (the “retaliatory
termination claim”). In pertinent part, section 704(a) of Title
VII prohibits an employer from taking an adverse employment action
against any employee “because he has opposed any practice made an
unlawful employment practice by this subchapter.” Title VII
§ 704(a), 42 U.S.C. § 2000e-3(a). Under the burden-shifting
framework formulated by the Supreme Court in McDonnell Douglas
Corp. v Green, a Title VII plaintiff bears the initial burden of
11
making out a prima facie case of retaliation. See 411 U.S. 792,
802-04 (1973). “In order to establish a prima facie case of
retaliation, a plaintiff must prove three elements: (1) that she
engaged in a protected activity; (2) that her employer took an
adverse employment action against her; and (3) that there was a
causal link between the two events.” EEOC v. Navy Fed. Credit
Union, 424 F.3d 397, 405-06 (4th Cir. 2005). As explained below,
Mann has failed to present a prima facie case of retaliation with
respect to either of her retaliation claims.
A.
By her retaliatory demotion claim, Mann contends that First
Union stripped her of her duties as a trader (thereby relegating
her to the role of hedger) in retaliation for her July 22, 1997
oral complaint of gender discrimination to Mr. Greco and the
internal complaint she filed with First Union’s Human Relations
Department on July 28, 1997. Mann’s own testimony shows
conclusively, however, that no causal nexus existed between her
demotion and her July 1997 complaints. In her deposition, Mann
testified that Brown and Greco “clarified” her role with First
Union in March and April 1997 by assigning her trading
responsibilities to Chan. J.A. 394. And such an action, having
occurred in March and April 1997, could not have been due to Mann’s
complaints of July 1997. Cf. Thompson v. Potomac Elec. Power Co.,
12
312 F.3d 645, 651 (4th Cir. 2002) (“The district court rightly
found that the continuation of the alleged adverse action after the
filing of a discrimination complaint did not, without more, support
Thompson’s prima facie burden of showing causation.”). Indeed, as
the district court observed, Mann’s July 28, 1997 internal
complaint was actually premised on First Union’s reallocation of
her trading duties to Chan. In these circumstances, Mann is unable
to show a causal connection between her July 1997 complaints and
her earlier demotion to the position of hedger in March and April
1997. The district court thus did not err in awarding summary
judgment to First Union on the retaliatory demotion claim.
B.
In her retaliatory termination claim, Mann maintains that
First Union contravened Title VII by firing her in retaliation for
her memoranda of September 9 and 10, 1998. As related above, in
order to establish the first prong of her retaliation claim, Mann
is obliged to show that, by sending such memoranda, she was
engaging in a protected activity. See Navy Fed., 424 F.3d at 405-
06. Title VII “protects activity in opposition not only to
employment actions actually unlawful under Title VII but also
employment actions an employee reasonably believes to be unlawful.”
Id. at 406. Mann, however, could not have reasonably believed that
13
the activities she complained of in her September 1998 memoranda
were unlawful employment actions prohibited by Title VII.
By that memoranda, Mann contended that she had suffered gender
discrimination (1) when she was not consulted on the hiring of
Feldman, a female job applicant; (2) by being excluded from a sales
meeting; and (3) by Martin’s comment that she was “a nosey busy
body.” Viewing these incidents either separately or in the
aggregate, no reasonable person could have believed that Title VII
had been, or was in the process of being, contravened. First,
other than Mann’s bare assertions, there is no evidence that she
was excluded from the Feldman hiring decision or the sales meeting
because of her gender, and she therefore had no reason to conclude
that the actions were taken on such a basis. See Goldberg v. B.
Green and Co., Inc., 836 F.2d 845, 848 (4th Cir. 1988) (recognizing
that plaintiff’s “own naked opinion, without more, is not enough to
establish a prima facie case” of discrimination). Moreover, no
reasonable employee could have believed that Martin’s “nosey busy
body” comment constituted the sort of severe or pervasive conduct
that contravenes Title VII. Cf. Clark County Sch. Dist. v.
Breeden, 532 U.S. 268, 271 (2001) (per curiam) (concluding that no
reasonable person could have believed that Title VII was violated
when, after reading crude comment related in prospective employee’s
psychological evaluation, plaintiff’s male supervisor and co-worker
engaged in brief, light banter). In these circumstances, the
14
district court properly awarded summary judgment to First Union on
the retaliatory termination claim.
IV.
Pursuant to the foregoing, we affirm the district court’s
award of summary judgment to First Union.
AFFIRMED
15