Bryant v. Bell Atlantic MD ( 2002 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOSEPH BRYANT, SR., 
Plaintiff-Appellant,
v.
BELL ATLANTIC MARYLAND,  No. 01-1541
INCORPORATED; BELL ATLANTIC
NETWORK SERVICES, INCORPORATED,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Benson E. Legg, District Judge.
(CA-99-1245-L, CA-99-1246-L)
Argued: November 1, 2001
Decided: April 29, 2002
Before WIDENER and MICHAEL, Circuit Judges, and
Frank J. MAGILL, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.
Affirmed by published opinion. Senior Judge Magill wrote the opin-
ion, in which Judge Widener and Judge Michael joined.
COUNSEL
ARGUED: Howard Jay Needle, Baltimore, Maryland, for Appellant.
Ralph Michael Smith, DECHERT, PRICE & RHOADS, Washington,
D.C., for Appellees.
2 BRYANT v. BELL ATLANTIC MARYLAND
OPINION
MAGILL, Senior Circuit Judge:
Joseph Bryant, Sr., appeals the district court’s decision dismissing
on summary judgment his claim seeking enforcement of an arbitration
award won by Bryant against his employer, Bell Atlantic Maryland,
Inc., and Bell Atlantic Network Services, Inc. (collectively "Bell
Atlantic"). Bryant also appeals the district court’s decision dismissing
on summary judgment his claims of employment discrimination
because of his color, race, and/or gender, in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"),
and 42 U.S.C. § 1981 ("Section 1981"), and unlawful retaliation, in
violation of Title VII. Bryant contends that (1) he has standing to seek
enforcement of the arbitration award, (2) the district court erred in
failing to recognize the recent Supreme Court clarification to the
proof requirements under the burden-shifting standard in Title VII
and Section 1981 cases, and (3) the district court erred in granting
summary judgment because there are genuine issues of material fact
still in dispute. For the reasons stated below, we affirm.
I. BACKGROUND
Joseph Bryant, an African-American employee of Bell Atlantic
since 1973, belongs to a bargaining unit represented by the Communi-
cations Workers of America, AFL-CIO ("CWA"). As a member of
the CWA, Bryant’s employment is covered by a collective bargaining
agreement between Bell Atlantic and the CWA. In 1995, Bell Atlantic
implemented the Red Letter Day policy, or Assigned Overtime Avail-
ability policy, to address increased customer service demands and the
cost and inconsistency of a volunteer overtime system. Under the pol-
icy, Bell Atlantic posted a schedule, encompassing a period of several
weeks, which notified employees of specific days that they must be
available to work overtime if the need arose. In addition, an employee
was assigned one Red Letter Day per week, with the assigned day of
the week varying from week to week. When the policy was first
implemented, employees were required to complete one overtime
assignment on their Red Letter Day after their regular assigned jobs
were completed. In late 1995 or early 1996, Bell Atlantic amended
BRYANT v. BELL ATLANTIC MARYLAND 3
the policy, requiring employees to perform two overtime jobs per Red
Letter Day.1
In 1995, Bryant, a single parent with physical custody of his two
minor children, protested the Red Letter Day policy in a grievance
arguing that it was difficult for him to work week-night overtime and
meet his child care responsibilities. Prior to the implementation of the
policy, Bryant refused overtime assignments because of his child care
responsibilities and incurred no discipline for his refusals. However,
in 1995, after implementation of the policy, Bryant received a written
warning, a one-day suspension, and a three-day and five-hour suspen-
sion for failure to work his assigned Red Letter Days. On September
27, 1995, when Bryant returned to work following his suspension, he
received a memo from a supervisor indicating that if he failed to work
his Red Letter Days, or did not get someone to work for him and
notify his supervisor, disciplinary action, up to and including dis-
missal, would be taken against him.
Between late 1995 and early 1996, Bryant made an effort to meet
his Red Letter Day obligations by swapping assignments with co-
workers and picking up his children at 6:00 p.m. from after-school
care. However, when Bell Atlantic amended the Red Letter Day pol-
icy to require employees to complete two overtime assignments, Bry-
ant again had difficulty meeting his Red Letter Day obligations. At
some time during this period, the president of the CWA asked Bell
Atlantic management to allow co-workers to perform Bryant’s Red
Letter Day assignments. Bell Atlantic, however, allegedly refused this
1
The Red Letter Day policy was unsuccessfully grieved by the CWA
pursuant to the grievance/arbitration procedure of the collective bargain-
ing agreement. The CWA took the position that Bell Atlantic did not
have the right to require overtime work in this particular manner. In a
March 25, 1997 decision, the arbitrator concluded that the Red Letter
Day policy was a "reasonable policy not in violation of the General
Agreement or any established past practice." In part, the arbitrator based
her decision of reasonableness on the fact that the policy allowed for rea-
sonable excuses, even though the employees were not informed of the
type of excuse that would be accepted or what discipline would be
imposed for a violation of the policy. Bell Atlantic contends that supervi-
sors could excuse a technician from working a Red Letter Day for unex-
pected emergencies, on a case-by-case basis.
4 BRYANT v. BELL ATLANTIC MARYLAND
offer. On August 1, 1996, a Red Letter Day, Bryant did not complete
his regular jobs until 6:00 p.m.; consequently, Bryant was unable to
perform his overtime assignments. On August 5, 1996, Bryant
received a nine-day suspension.
During a meeting between Bryant and Bell Atlantic on August 28,
1996, Bell Atlantic presented Bryant with four options of accommo-
dation. Bryant’s child care responsibilities made it impossible for
Bryant to consider three of the options. Bryant agreed to attempt the
fourth option, which required Bryant to designate one day during the
week as his regular Red Letter Day, leave work early on that day to
pick up his children from school, transport his children to a care pro-
vider, and then return to work to complete his overtime assignments.
This accommodation, however, apparently did not resolve the con-
flict.
From September 30, 1996, through mid-December 1996, Bell
Atlantic excused Bryant from working his Red Letter Days for medi-
cal reasons. On December 18, 1996, Bell Atlantic notified Bryant that
his medical excuse had terminated. Then, on January 6, 1997, Bell
Atlantic issued Bryant a final warning and a thirty-day suspension for
failing to complete two overtime assignments on two separate occa-
sions. Bryant returned to work on February 18, 1997. On March 3,
1997, Bryant’s child care obligations made it impossible for him to
complete his second Red Letter Day assignment. On March 5, 1997,
Bell Atlantic followed through with its final warning and terminated
Bryant. A company memo indicated that the basis for Bryant’s dis-
charge was repeated insubordination in failing to work assigned over-
time.
The CWA filed a grievance on Bryant’s behalf which, under the
terms of the collective bargaining agreement, culminated in submis-
sion to an arbitrator the question whether Bell Atlantic had "just
cause" to terminate Bryant’s employment. The union represented Bry-
ant before the arbitrator, and the adequacy of that representation has
not been challenged. On July 30, 1998, after determining that Bell
Atlantic did not have just cause to terminate Bryant, the arbitrator
ordered Bell Atlantic to reinstate Bryant to his former position, or a
substantially similar position, and to make Bryant "whole" for all
losses suffered from the time of his discharge to his reinstatement.
BRYANT v. BELL ATLANTIC MARYLAND 5
The arbitrator also strongly suggested that Bryant be placed in a posi-
tion that did not fall under the Red Letter Day policy or, in the alter-
native, that Bryant be scheduled for overtime in a manner that would
allow him to meet his workplace and child care obligations. In August
1998, Bryant was reinstated by Bell Atlantic as a Construction Line-
man, a position that has the same salary, same benefits, and similar
promotional opportunities as his previous position. Bryant’s new
position is not subject to the Red Letter Day policy. Bell Atlantic also
paid Bryant all of the back pay that the CWA stated was owed him.
On August 28, 1997, with his grievance against Bell Atlantic still
pending, Bryant filed a charge of discrimination with the Equal
Employment Opportunity Commission ("EEOC") and the Maryland
Commission on Human Relations ("MCHR") for his March 5, 1997
termination. In his EEOC complaint, Bryant alleged that he was dis-
criminated against on the basis of his race. On January 20, 1999, the
EEOC issued Bryant a right-to-sue letter.
On April 20, 1999, Bryant filed two civil actions against Bell
Atlantic in the Circuit Court for Baltimore City. In the first complaint,
Bryant sought enforcement of his July 30, 1998 arbitration award pur-
suant to the Maryland Uniform Arbitration Act (the "Act"), Md. Code
(1974, 1998 Repl. Vol.), § 3-227 of the Courts and Judicial Proceed-
ings Article. Bryant’s second complaint included the following seven
allegations: (1) discrimination based on color, race, and/or gender in
violation of Title VII for discipline, suspension, and discharge; (2)
discrimination based on race and/or color in violation of 42 U.S.C.
§ 1981; (3) denial of the benefits of the Equal Protection Clause of the
Fourteenth Amendment; (4) wrongful discharge in violation of the
public policies of the State of Maryland; (5) retaliation in violation of
Title VII based on Bryant’s EEOC and MCHR filings, and his griev-
ance filings and the arbitration proceedings conducted pursuant
thereto; (6) intentional infliction of emotional distress; and (7) inva-
sion of privacy.
Bell Atlantic successfully removed both complaints to the United
States District Court for the District of Maryland, and the district
court consolidated both cases. Thereafter, Bell Atlantic filed a motion
for summary judgment. In an order filed on March 16, 2001, the dis-
trict court granted Bell Atlantic’s motion for summary judgment on
6 BRYANT v. BELL ATLANTIC MARYLAND
all counts. The district court held that Bryant failed to establish a
prima facie case of discrimination under Title VII or Section 1981.
Moreover, the district court held that Bryant’s claim seeking enforce-
ment of the arbitration award could not survive because of Bryant’s
failure to exhaust the dispute resolution procedures specified in the
collective bargaining agreement. In addition, the district court held
that Bryant’s right to bring a claim to enforce an arbitration award
under the collective bargaining agreement was contingent upon a
showing that the CWA breached its duty of fair representation. Thus,
because Bryant did not attempt to demonstrate that the CWA
breached its duty of fair representation, the district court held that
Bryant lacked standing to seek enforcement of the arbitration award.2
Bryant filed a timely appeal.
II. ENFORCEMENT OF THE ARBITRATION AWARD
We first address the issue of Bryant’s standing to seek enforcement
of the arbitration award. We understand Bryant’s argument to be that
he is entitled to seek judicial enforcement of the arbitration award
under either Section 3-227 of the Maryland Uniform Arbitration Act
or Section 301 of the Labor Management Relations Act ("LMRA"),
29 U.S.C. § 185(a).
A. Maryland Uniform Arbitration Act
Bryant maintains that he has standing to seek judicial enforcement
of the arbitration award pursuant to Section 3-227 of the Maryland
Uniform Arbitration Act, which specifically provides for a judicial
proceeding to enforce an arbitration award. Section 3-227(b) provides
that "[t]he court shall confirm the [arbitration] award, unless the other
party has filed an application to vacate, modify, or correct the award
within the time provided in §§ 3-222 and 3-223." Thus, Bryant
argues, because Bell Atlantic did not challenge the award, Section 3-
227 provides Bryant with an avenue with which to seek enforcement
of his award. We disagree.
2
The district court also granted summary judgment to Bell Atlantic as
to each of Bryant’s additional claims, which Bryant does not challenge
on appeal.
BRYANT v. BELL ATLANTIC MARYLAND 7
Section 3-206(b) of the Maryland Uniform Arbitration Act
expressly excludes from its coverage "arbitration agreement[s]
between employers and employees or between their respective repre-
sentatives unless it is expressly provided in the agreement that [the
Act] shall apply." Md. Code Ann., Cts. & Jud. Proc. § 3-206(b)
(1974, 1998 Repl. Vol.); see also Wilson v. McGrow, Pridgeon &
Co., P.A., 467 A.2d 1025, 1031 (Md. 1983) (primary purpose of Sec-
tion 3-206(b) is to exclude arbitration agreements in collective bar-
gaining contracts from the Act). Bryant does not contend that the
collective bargaining agreement at issue here expressly provides that
the Maryland Uniform Arbitration Act should apply, nor do we find
such a provision in the agreement. Therefore, Section 3-206(b) ren-
ders the Maryland Uniform Arbitration Act inapplicable here. See Bd.
of Educ. of Prince George’s County v. Prince George’s County Edu-
cators’ Ass’n, Inc., 522 A.2d 931, 936 (Md. 1987) (finding that the
absence of any reference to Maryland statute in collective bargaining
agreement renders Maryland Uniform Arbitration Act inapplicable to
suit seeking to vacate an arbitration award). We thus hold that Bryant
is not entitled to seek enforcement of the arbitration award under the
Maryland Uniform Arbitration Act.
B. Section 301(a) of the Labor Management Relations Act
On appeal, Bryant argues that Section 301(a) of the LMRA pro-
vides a jurisdictional basis for individual suits brought by employees.
The district court disagreed, however, and granted Bell Atlantic’s
motion for summary judgment on the grounds that Bryant lacked
standing to seek judicial enforcement of the arbitration award because
he failed to exhaust the dispute resolution procedures specified in the
collective bargaining agreement and did not attempt to demonstrate
that the CWA breached its duty of fair representation.
An individual employee represented by a union, such as Bryant is,
generally does not have standing to challenge, modify, or confirm an
arbitration award because he was not a party to the arbitration. See,
e.g., Cleveland v. Porca Co., 38 F.3d 289, 296-97 (7th Cir. 1994)
(employees represented by union generally lack standing to enforce
arbitration award because they are not parties to either the collective
bargaining agreement or union-company arbitration); Katir v. Colum-
bia Univ., 15 F.3d 23, 24-25 (2d Cir. 1994) (per curiam) (same);
8 BRYANT v. BELL ATLANTIC MARYLAND
Bacashihua v. USPS, 859 F.2d 402, 405-06 (6th Cir. 1988) (same).
The exception to this general rule is when the union has breached its
duty of fair representation by failing to enforce the award on the
employee’s behalf.3 See, e.g., Porca, 38 F.3d at 297; Katir, 15 F.3d
at 24-25; Bacashihua, 859 F.2d at 406. Bryant was not a party to the
arbitration between the CWA and Bell Atlantic. In addition, Bryant
has not attempted to show that the CWA breached its duty of fair rep-
resentation. Accordingly, Bryant lacks standing to enforce the award,
and the district court properly granted Bell Atlantic’s motion for sum-
mary judgment.
III. TITLE VII AND SECTION 1981 CLAIMS
A. Standard of Review
We review the district court’s summary judgment decision de
novo, viewing the record in the light most favorable to the nonmoving
party, here Bryant. Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th
Cir. 2001). Rule 56(c) of the Federal Rules of Civil Procedure pro-
vides that summary judgment is appropriate when there is no genuine
issue as to any material fact and the moving party is entitled to judg-
ment as a matter of law. Fed. R. Civ. P. 56(c). An otherwise properly
supported motion for summary judgment will not be defeated by the
existence of some factual dispute; rather, "[o]nly disputes over facts
that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment." Hooven-Lewis,
249 F.3d at 265. In reviewing the grant of summary judgment, we can
affirm on any legal basis supported by the record and are not confined
to the grounds relied on by the district court. Jackson v. Kimel, 992
F.2d 1318, 1322 (4th Cir. 1993).
B. Retaliation, Color and Sex Discrimination Claims
In granting Bell Atlantic’s motion for summary judgment, the dis-
trict court did not address Bryant’s claims of retaliation, and color and
sex discrimination. On appeal, Bell Atlantic contends that Bryant
3
A union breaches its duty of fair representation of an individual
employee when it acts in a "discriminatory, dishonest, arbitrary, or per-
functory" manner. DelCostello v. Teamsters, 462 U.S. 151, 164 (1983).
BRYANT v. BELL ATLANTIC MARYLAND 9
failed to exhaust his administrative remedies with respect to these
claims, and consequently these claims are barred. We agree.
Before a plaintiff has standing to file suit under Title VII, he must
exhaust his administrative remedies by filing a charge with the
EEOC. See Smith v. First Union Nat’l Bank, 202 F.3d 234, 247 (4th
Cir. 2000). The EEOC charge defines the scope of the plaintiff’s right
to institute a civil suit. Id. "An administrative charge of discrimination
does not strictly limit a Title VII suit which may follow; rather, the
scope of the civil action is confined only by the scope of the adminis-
trative investigation that can reasonably be expected to follow the
charge of discrimination." Chisholm v. United States Postal Serv., 665
F.2d 482, 491 (4th Cir. 1981).
In the present case, Bryant’s EEOC charge alleges that Bell Atlan-
tic discriminated against him based upon his race.4 Bryant’s com-
plaint alleges that Bell Atlantic discriminated against him based upon
his color,5 race, and/or sex, and retaliated against him for filing com-
4
On July 3, 1996, Bryant filed a charge of discrimination based on his
race and sex for his September 21, 1995 suspension and May 30, 1996
verbal warning. Bryant received a right-to-sue letter from the EEOC
based on this charge on April 21, 1997. On July 18, 1997, Bryant filed
a timely pro se complaint in the United States District Court for the Dis-
trict of Maryland based on this charge. However, the district court dis-
missed this case, without prejudice, on December 10, 1997, for failure
to effectuate service of the summons and complaint within the applicable
time limitations. Bryant’s second charge form filed with the EEOC for
his March 5, 1997 termination did not charge discrimination based on
Bryant’s sex. Therefore, Bryant has failed to exhaust his administrative
remedies with respect to his claim of sex discrimination for his alleged
wrongful termination. Moreover, Bryant’s claim of sex discrimination
for his suspension and verbal warning are time-barred because Bryant
filed his complaint outside the ninety-day limitations period in which a
plaintiff has to file a claim after receiving a right-to-sue letter. See 42
U.S.C. § 2000e-5(f)(1).
5
Color discrimination arises when the particular hue of the plaintiff’s
skin is the cause of the discrimination, such as in the case where a dark-
colored African-American individual is discriminated against in favor of
a light-colored African-American individual. See, e.g., Walker v. Sec’y
of the Treasury, 713 F. Supp. 403, 406-07 (N.D. Ga. 1989). In his EEOC
10 BRYANT v. BELL ATLANTIC MARYLAND
plaints of discrimination with the EEOC and MCHR and for filing
grievance and arbitration proceedings. Administrative investigation of
retaliation, and color and sex discrimination, however, could not rea-
sonably be expected to occur in light of Bryant’s sole charge of race
discrimination, and the investigation of the complaint did not touch
on any matters other than race discrimination.6 Therefore, because the
scope of Bryant’s complaint exceeds the limits set by the allegations
of Bryant’s administrative complaint, we cannot analyze the merits of
Bryant’s retaliation or color and sex discrimination claims.
C. Race Discrimination Claims
To establish a prima facie case of racial discrimination in the
enforcement of employee disciplinary measures under Title VII,7 Bry-
complaint, Bryant did not indicate that he was discriminated against on
the basis of his skin color. Rather, Bryant’s allegations in both his second
EEOC charge form and his complaint focus exclusively on Bryant’s race
and are devoid of any hint that his particular skin tone motivated the
alleged discrimination.
6
The written findings of the MCHR, the administrative agency under-
taking the investigation of Bryant’s charge, include no reference to retali-
ation or color or sex discrimination. Quite the contrary, ¶ 15 of the
written findings state:
Regarding [Bryant’s] allegation that the disciplinary action he
received is based on his race, documentation presented reveals a
total of thirty-six technicians were disciplined for the same or
similar reason as [Bryant]. Of the thirty-five (35) technicians dis-
ciplined, only six (6), or 17% were minority employees. Docu-
mentation presented also revealed that seven (7) employees were
terminated, of which only two (2), or 29%, were minority
employees.
The written findings conclude by stating, "information and documenta-
tion presented revealed that [Bryant’s] race was not a factor in the disci-
plinary action." ¶ 18.
7
The required elements of a prima facie case of employment discrimi-
nation are the same under Title VII and Section 1981. Gairola v. Com-
monwealth of Va. Dept. of Gen. Servs., 753 F.2d 1281, 1285 (4th Cir.
1985).
BRYANT v. BELL ATLANTIC MARYLAND 11
ant must show that: (1) he is a member of a protected class; (2) he
was qualified for his job and his job performance was satisfactory; (3)
he was fired; and (4) other employees who are not members of the
protected class were retained under apparently similar circumstances.
See, e.g., Hughes v. Bedsole, 48 F.3d 1376, 1384 (4th Cir. 1995);
Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir. 1993). Under
the now familiar McDonnell Douglas tripartite burden-shifting frame-
work, if Bryant succeeds in proving a prima facie case, the burden of
going forward shifts to Bell Atlantic, the employer, who must then
articulate a non-discriminatory reason for the difference in treatment.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
Should Bell Atlantic articulate a non-discriminatory reason, the bur-
den then shifts back to Bryant to demonstrate that Bell Atlantic’s rea-
sons were not true, but instead were merely a pretext for
discrimination. Cook, 988 F.2d at 511. The district court held that
Bryant failed to establish a prima facie case of discrimination because
of his failure to produce any evidence that Bell Atlantic made any
decisions regarding him based on his race. While we commend Mr.
Bryant for the seriousness with which he takes his child care responsi-
bilities, we hold that his claim fails to establish a prima facie case of
race discrimination.
It is undisputed that Bryant satisfied his burden with respect to the
first three elements of his prima facie case. Nevertheless, Bryant is
unable to advance proof that other employees who are not members
of the protected class were treated differently than Bryant under simi-
lar circumstances. The facts demonstrate that between 1995 and
March 1997, Bryant failed to work assigned overtime pursuant to the
Red Letter Day policy on at least fifteen occasions. Although we view
Bell Atlantic’s implementation of its forced overtime policy to be
harsh, Bryant is unable to show that Bell Atlantic treated similarly sit-
uated employees outside his class more favorably. Bryant attempts to
so demonstrate by comparison to four Bell Atlantic employees. None
of this evidence, however, supports Bryant’s claim.
First, Bryant contends that he believes that Bell Atlantic excused
Don Bradford, a Caucasian male, from working his Red Letter Days
because his son was ill. The deposition testimony of Bradford, how-
ever, contradicts Bryant’s allegation. In particular, Bradford testified
that he never asked to be excused from a Red Letter Day, and when
12 BRYANT v. BELL ATLANTIC MARYLAND
he missed work to care for his terminally ill son, he either used vaca-
tion time or Family and Medical Leave time. Second, Bryant contends
that Bell Atlantic excused Marian Diggins, a Caucasian female, from
working a Red Letter Day. Diggins’s testimony, however, contradicts
this allegation. In particular, Diggins states that she was never
excused from a Red Letter Day, and with the exception of failing to
work one Red Letter Day because she "forgot," she worked all of her
assigned Red Letter Days. As additional evidence, Bryant claims that
Bell Atlantic excused Chris Price, a Caucasian single parent, from
working his evening shift because of conflicts with his child care
responsibilities, and permitted him to swap with other employees so
that he could work his day shift. During his deposition, however, Bry-
ant testified that the circumstances to which he was referring occurred
after the Red Letter Day policy was rescinded, and that he did not
know whether Price was excused from working his Red Letter Days
to accommodate his child care responsibilities or for some other rea-
son. Finally, Bryant contends that Bell Atlantic excused another Cau-
casian male from working Red Letter Days, despite being caught
twice with a prostitute in his company truck. Once again, however,
during his deposition, Bryant admitted that he had no personal knowl-
edge of whether the individual ever asked for or was granted permis-
sion to not work his Red Letter Days because of child care
responsibilities. Thus, none of the employees to which Bryant com-
pares himself demonstrates that Bell Atlantic treated him any differ-
ently than members outside Bryant’s class because none of these
employees were engaged in the same type of misconduct attributed to
Bryant.
Bryant also contends that the affidavit testimony of three
individuals—Gloria Pack, service representative and vice president of
the CWA; John Shickman, Bell Atlantic service technician; and
Cedric Lyon, Bell Atlantic service technician—demonstrates that he
was discriminated against because of his race.8 These affidavits, how-
8
Bryant also contends that genuine issues of material fact exist con-
cerning: (1) whether he was allowed sufficient time to make child care
arrangements; (2) the validity of his excuses to miss his Red Letter Days
under the Family and Medical Leave Act; (3) whether he always sought
permission to miss his Red Letter Days before he left work; (4) whether
the job he was given after he won his arbitration was materially different
BRYANT v. BELL ATLANTIC MARYLAND 13
ever, amount to no more than subjective beliefs, and such evidence,
without more, is insufficient to create a genuine issue of material fact
as to any discriminatory conduct on Bell Atlantic’s part. See, e.g.,
Ennis v. Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th
Cir. 1995) (unsupported speculation insufficient to defeat summary
judgment). For example, the affidavit of Ms. Pack states, "I believe
Harry Carver is a racist. He did not apply the Red Letter Day require-
ments uniformly. Several Black Service Technicians were fired under
his supervision, but I am not aware of any White Service Technicians
who were." Moreover, when deposed, Pack, Shickman, and Lyon all
admitted that Bell Atlantic accommodated Bryant in ways that it did
not accommodate other employees, Caucasian or African-American.9
Finally, Bryant contends that the district court failed to recognize
and apply the recent standard of proof modification to the burden-
shifting framework of Title VII cases established in Reeves v. Sander-
son Plumbing Products, Inc., 530 U.S. 133 (2000). Bryant’s argument
from the one he held before arbitration; and (5) whether he was "made
whole" as required by the arbitration award. Bryant’s arguments, how-
ever, are irrelevant to the question whether Bryant was treated differently
than similarly situated employees outside his class. See Hooven-Lewis,
249 F.3d at 265 ("Only disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the entry of
summary judgment.").
9
Bryant also contends that all of Bell Atlantic’s affidavits in the record
are defective because they do not state that they are based on personal
knowledge and do not affirmatively state that the affiants are competent
to testify to the matters stated therein. Therefore, Bryant argues that the
affidavits do not satisfy the requirements of Rule 56(e) of the Federal
Rules of Civil Procedure. Bryant’s argument is without merit. We have
held that in the Rule 56(e) context, "ordinarily, officers would have per-
sonal knowledge of the acts of their corporations." Catawba Indian Tribe
v. S.C., 978 F.2d 1334, 1342 (4th Cir. 1992). Bell Atlantic’s affidavits
contain sufficient information, including a description of the affiants’ job
titles and duties, to establish that the affiants’ statements were made
based on personal knowledge. In the absence of evidence from Bryant
that each of Bell Atlantic’s affiants were not competent to testify, we
assume that they were. See In re Apex Express Corp., 190 F.3d 624, 635
(4th Cir. 1999).
14 BRYANT v. BELL ATLANTIC MARYLAND
misses the mark, however, because Reeves specifically addressed the
question "whether a plaintiff’s prima facie case of discrimination . . .
combined with sufficient evidence for a reasonable factfinder to reject
the employer’s nondiscriminatory explanation for its decision, is ade-
quate to sustain a finding of liability for intentional discrimination."
530 U.S. at 140. Reeves did not alter or amend the plaintiff’s prima
facie case. Thus, because the district court held that Bryant failed to
establish a prima facie case, a decision with which we agree, Reeves
is irrelevant to Bryant’s claims.
In sum, because Bryant is unable to demonstrate that Bell Atlantic
treated similarly situated employees outside his class more favorably,
we hold that Bryant fails to establish a prima facie case of discrimina-
tion. Accordingly, we affirm the district court’s grant of summary
judgment in favor of Bell Atlantic on Bryant’s Title VII and Section
1981 claims.
IV. CONCLUSION
For the foregoing reasons, we affirm the decision of the district
court dismissing Bryant’s claims on summary judgment. Addition-
ally, we deny the outstanding motion by Bell Atlantic to file a supple-
mental appendix because it is not relevant to our decision. For similar
reasons, we deny Bryant’s motion to strike and for sanctions.
AFFIRMED