Freeman v. North State Bank , 282 F. App'x 211 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1251
DOROTHY H. FREEMAN,
Plaintiff - Appellant,
v.
NORTH STATE BANK,
Defendant - Appellee,
and
LARRY BARBOUR; FORREST BALL; JAMES C. BRANCH; CHARLES T.
FRANCIS; GLENN FUTRELL; C. THOMAS HENDRICKSON; KEITH KEENER,
MD; GARY H. PENDLETON, Brigadier General; W. HAROLD PERRY;
NUTAN T. SHAH; FRED J. SMITH; JACK STANCIL; GEORGE VENTERS,
Dr.; JAMES P. BAKER, JR.; ELBERT BOYD; KENT CUMMINGS; SCOTT D.
DAWSON; DAVID FAJGENBAUM; THOMAS HENDERSON; LAMARR ROBINSON;
J. RANDALL TIDWELL; MARK ZURAWEL, Dr.; LELAND E. GARRETT, Dr.;
RONALD B. GRIDLEY; ALLYSON K. DUNCAN, Individually and as they
comprise the Board of Directors and investors of North State
Bank,
Defendants.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:03-cv-00916-BO)
Argued: March 20, 2008 Decided: June 10, 2008
Before WILKINSON and KING, Circuit Judges, and C. Arlen BEAM,
Senior Circuit Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Julius Chambers, FERGUSON, STEIN, CHAMBERS, GRESHAM &
SUMTER, P.A., Charlotte, North Carolina, for Appellant. L. Diane
Tindall, WYRICK, ROBBINS, YATES & PONTON, Raleigh, North Carolina,
for Appellee. ON BRIEF: Mary M. Williams, WYRICK, ROBBINS, YATES
& PONTON, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Plaintiff Dorothy H. Freeman appeals from the district court’s
award of summary judgment to North State Bank (“North State” or the
“Bank”), her former employer, on race-based claims pursued under
Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. In
particular, Freeman, who is African-American, alleges that North
State unlawfully discriminated against her on the basis of her race
in awarding her a lower annual bonus in 2002 than it paid to
similarly situated white employees. She also maintains that she
was discharged in retaliation for her complaints about the race-
based disparity in the bonuses. As explained below, we affirm.
I.
A.
North State is headquartered in Raleigh, North Carolina, and
began operations in June 2000.1 In January 2001, Freeman was hired
as a Loan Administrative Assistant (“LAA”) at North State, where
she helped process loans for a loan officer.2 In 2001, Freeman’s
initial salary was $35,000 per year, and it increased to nearly
$38,000 in 2002. During Freeman’s employment with North State, the
1
We recite the facts in the light most favorable to Freeman,
as the non-moving party. See Lee v. York County Sch. Div., 484
F.3d 687, 693 (4th Cir. 2007).
2
In addition to her regular duties as an LAA, Freeman also
attended a seminar, picked up flowers, staffed the Bank’s booth at
a business expo, and occasionally provided customer support.
3
Bank also employed two other LAAs: Karen Kilmer and Paige Fly,
both white. Kilmer had joined North State approximately six months
prior to Freeman, with an initial salary of $35,000. Kilmer
received raises in 2001 and 2002, resulting in an annual salary of
$38,750. Fly was hired as a teller seven months after Freeman was
hired, with a starting salary of $25,000. Fly was promoted to the
position of LAA in January 2002, and received an increase in annual
salary to $27,000 at that time.
In November 2002, Freeman, Kilmer, and Fly met with Stephen
Salisbury, the Bank’s Senior Vice President, for the purpose of
determining who should provide administrative support for a new
loan officer. At the time of the meeting, Freeman was supporting
a single consumer loan officer, while Kilmer and Fly each supported
two commercial loan officers. Constance Sprigg, Freeman’s
supervisor, has opined that commercial loans often required more
work from the loan officers, but that in most cases, consumer loans
required more work from the LAAs because more disclosures were
required. The loan officer Freeman supported processed a larger
number of loans than the Bank’s other loan officers, but the
consumer loans yielded a lower dollar return than the commercial
loans. Prior to the November 2002 meeting, Sprigg and another Bank
employee, Judy Pope, a Customer Service Representative, advised
Freeman not to volunteer for the new loan officer because her
“workload was at the maximum and . . . she just couldn’t handle any
4
more work.” J.A. 414.3 When Salisbury asked who would provide
administrative support to the new loan officer, Fly volunteered.
As a result, Fly began supporting three loan officers, while Kilmer
continued to support two, and Freeman supported only one.
On December 3, 2002, North State’s Executive Management Team
met to discuss the award of year-end bonuses to the Bank’s
employees. This meeting involved Larry Barbour, President and
Chief Executive Officer; Chuck Washburn, Executive Vice President
and Chief Credit Officer; Judy Stephenson, Executive Vice
President; Kirk Whorf, Senior Vice President and Chief Financial
Officer; and Sandra Temple, Senior Vice President and Chief
Operations Officer. During the meeting, the Executive Management
Team assessed each employee’s commitment to his/her job, as well as
other factors including work ethic, quality of work, and overall
job performance. Considering these factors, they decided to award
2002 annual bonuses of $750 to Kilmer, $600 to Fly, and $300 to
Freeman.
Shortly after North State informed its employees of their
individual bonuses, Sprigg advised Freeman that her 2002 bonus was
less than those paid to Fly and Kilmer. On January 8, 2003, Sprigg
informed Sandra Temple, who handles human resources issues for the
Bank, that Freeman was concerned about the differences in the
3
Citations to “J.A. ” refer to the Joint Appendix filed by
the parties in this appeal.
5
bonuses. The following week, on January 13, 2003, Freeman wrote to
Barbour, the Bank’s President and CEO, inquiring about the apparent
disparity in bonuses. Later that same day, Temple and Salisbury
met with Freeman in an effort to address her concerns.
At the January 13, 2003 meeting, Temple informed Freeman that
Fly had received a larger annual bonus because she volunteered to
support a third loan officer. Temple further explained that the
bonuses were based on how many loan officers each LAA supported.
Salisbury interrupted Temple, however, explaining that it was his
understanding that the bonuses were discretionary, and not based on
any fixed criteria. Temple responded that there was more to it
than that, and stated that Salisbury had not been present at the
meeting when the bonuses were discussed. Shortly after the January
13 meeting, Temple met with Freeman again and reiterated that Fly
had received a larger bonus because she had volunteered to provide
support to the new loan officer.
On January 21, 2003, Freeman wrote the members of the Bank’s
Board of Directors, complaining about her bonus for 2002. On
January 30, 2003, counsel for North State wrote a letter to Freeman
responding to her concerns, informing her that the bonus decision
was based on “job performance, quantity and quality of work product
as well as certain intangibles such as attitude and work ethic.”
J.A. 257. It explained that Fly’s willingness to support three
loan officers — compared to Freeman’s single loan officer — was
6
the most important factor in the bonus decisions. The letter also
reasoned that Fly’s loan portfolio was more complex than Freeman’s
based on the types of loans that she was processing, and that Fly’s
work was “cleaner.” Id.On January 23, 2003 — before she had received a response to
her letter to the Board — Freeman left work early, because she
“just wasn’t able to go the rest of the day,” since she was
“stressed” and “had anxiety.” J.A. 229. Sprigg informed Temple
that Freeman was “so distressed over the issue with the
discretionary bonus, that she could not concentrate on anything
else.” Id. at 115. According to Dr. Gerald Blake, a physician who
examined Freeman shortly thereafter, Freeman was suffering from
“severe job-related emotional stresses that prevent[ed] her from
physically working.” Id. at 263. Freeman never returned to work
at North State.
In mid-March 2003, after she had exhausted all of her
accumulated leave time, Freeman requested additional leave from the
Bank. By letter of March 17, 2003, North State advised Freeman
that it would consider her request for additional leave under its
Medical Leave Policy. On March 31, 2003, the Bank notified Freeman
that it had approved her request for additional leave through April
17, 2003, but that she would be expected to return to work on April
21, 2003. Freeman did not respond to North State’s letter, and
failed to return to work on April 21, 2003. On April 22, 2003, the
7
Bank notified Freeman in writing that it would treat her failure to
return to work, or to communicate her status, as a voluntary
resignation.
Shortly after her last day at work, Freeman made a claim for
long-term disability benefits (“LTD”) with her insurer, Unum
Provident (“Unum”). On her claim form to Unum, Freeman indicated
that she had been unable to work since January 23, 2003. According
to medical records Freeman submitted in support of her LTD claim,
the bonus incident caused Freeman significant stress, and Freeman’s
physician opined that she was “totally and completely unable at
this time to perform any type of work, including part-time or
sedentary work.” J.A 266. On June 17, 2003, Unum notified Freeman
that she qualified for LTD benefits. On July 11, 2003, Freeman
also applied for disability benefits with the Social Security
Administration (“SSA”). She was notified on October 12, 2003, that
the SSA found her to be disabled as of January 23, 2003, and
eligible for SSA benefits beginning in July 2003.
B.
On May 29, 2003, Freeman filed a discrimination charge against
North State concerning her 2002 bonus with the Equal Employment
Opportunity Commission (the “EEOC”). On September 15, 2003, the
EEOC dismissed Freeman’s charge and notified her that, based upon
its investigation, there was no evidence to establish any violation
of the applicable statutes. Thereafter, on December 9, 2003,
8
Freeman filed a pro se complaint against North State and several
members of its Board of Directors in the Eastern District of North
Carolina, alleging that she had been the victim of discrimination,
based on her age, race, and sex, in the distribution of the 2002
bonuses. After securing counsel, Freeman filed an amended
complaint on June 7, 2004, alleging, inter alia, that the Bank had
violated Title VII, as well as 42 U.S.C. § 1981, by awarding
Freeman, its only African-American LAA, a lower bonus than its two
white LAAs, and by terminating Freeman’s employment when she
complained about the disparity in such bonuses.
On June 28, 2006, after the completion of discovery, North
State filed a motion for summary judgment. In relevant part, it
maintained that Freeman had not established a prima facie case for
discrimination under Title VII and § 1981, and that, even if she
had, there was no evidence that North State’s explanations for the
differences in its 2002 bonuses were pretextual. In response,
Freeman maintained that there were genuine issues of material fact
on her claims. In an order entered February 21, 2007, the district
court granted summary judgment to North State on each of Freeman’s
claims, explaining that she had failed to establish a prima facie
case of race discrimination because receiving a lower discretionary
bonus than similarly situated white coworkers does not constitute
an adverse employment action. See Freeman v. North State Bank, No.
5:03-cv-916-BO (E.D.N.C. Feb. 21, 2007) (the “Order”). The court
9
also ruled that, even if Freeman had established a prima facie
case, there was no evidence that the explanations given by the Bank
for the 2002 bonus disparities were pretextual. Id. at 4 n.2.
Freeman has timely appealed, and we possess jurisdiction pursuant
to 28 U.S.C. § 1291.
II.
As a general proposition, we review de novo a district court’s
award of summary judgment, viewing the facts in the light most
favorable to the non-moving party. See Lee v. York County Sch.
Div., 484 F.3d 687, 693 (4th Cir. 2007). An award of summary
judgment may be appropriately made only if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to summary judgment as a matter of law. See Fed. R. Civ. P. 56(c).
III.
On appeal, Freeman contends that the district court erred in
awarding summary judgment to North State. Specifically, Freeman
asserts that North State contravened Title VII and § 1981 in four
respects: (1) paying her a lower 2002 bonus, on the basis of race,
than it paid to other LAAs; (2) discharging her in retaliation for
raising concerns about the disparity in bonuses; (3) constructively
10
discharging her; and (4) acting with racial animus against her
throughout her employment. We assess these contentions in turn.
A.
First, Freeman contends that the district court erred in
awarding summary judgment to North State on her claim that it had
discriminated against her on the basis of race, in contravention of
Title VII and § 1981, by awarding her a lower bonus in 2002 than it
gave the two white LAAs. Title VII and § 1981 both prohibit
discrimination in the workplace on the basis of race. The
essential elements of a race discrimination claim are identical
under both statutes. See Love-Lane v. Martin, 355 F.3d 766, 786
(4th Cir. 2004) (explaining that framework for Title VII claims has
also been applied to § 1981 claims). To establish a prima facie
case, Freeman must provide direct or circumstantial evidence of
race discrimination. In this case, Freeman has failed to produce
any direct evidence of race discrimination and, thus, we must
proceed under what is known as the McDonnell Douglas framework.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973).
Under McDonnell Douglas, a plaintiff is obligated to first
establish a prima facie case of discrimination. See Love-Lane, 355
F.3d at 786. If the plaintiff makes such a showing, the defendant
must respond with evidence that it acted on a legitimate, non-
discriminatory basis. See id. Finally, if the defendant does so,
the plaintiff is obliged to present evidence to prove that the
11
defendant’s articulated reasons were a pretext for unlawful
discrimination. See id. “Although the evidentiary burdens shift
back and forth under the McDonnell Douglas framework, the ultimate
burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all
times with the plaintiff.” Id. (internal quotation marks omitted).
To establish a prima facie case of discrimination, Freeman was
obligated to prove that (1) she is a member of a protected class,
(2) she suffered an adverse employment action, (3) she was
performing satisfactorily at the time of the adverse employment
action, and (4) similarly situated employees outside the protected
class received more favorable treatment. See White v. BFI Waste
Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004). In rejecting her
claims, the district court concluded that Freeman “has not
demonstrated an adverse employment action by receiving a lower
bonus than her coworkers, and cannot establish a prima facie case
for discrimination.” Order 4. The court also ruled that, even
assuming Freeman had established a prima facie case, she had not
offered sufficient evidence to show that the reasons given by North
State for awarding her a lower bonus than the two white LAAs were
pretextual. Id. at 4 n.2. Specifically, the court explained that
[a]ssuming Plaintiff could establish a prima facie case,
Defendant offered several non-discriminatory reasons for
the difference between Plaintiff’s bonus and those
awarded to other workers: (1) compensating one woman
with a lower base salary who took on additional
responsibility; (2) compensating another woman for
12
handling complex loan portfolios and longer work hours;
and (3) compensating Plaintiff for supporting one loan
officer. Plaintiff has not offered sufficient evidence
to show that these reasons are pretext for intentional
discrimination.
Id. As a result, the court granted summary judgment to North State
on Freeman’s race-based claim on her 2002 bonus.
In pursuing her appeal, Freeman asserts that the Bank’s
reasons were inconsistent, and that such inconsistency is
sufficient evidence of pretext. See EEOC v. Sears Roebuck & Co.,
243 F.3d 846, 852-53 (4th Cir. 2001) (recognizing that offering
“different justifications at different times . . . is, in and of
itself, probative of pretext”). She also maintains that her
performance was equal to or better than that of the two white LAAs.
Contrary to Freeman’s contentions, the district court properly
ruled that Freeman failed to show that the reasons given by North
State for the differences in the 2002 bonuses were pretextual.
Freeman was given an explanation for the differences in the
bonuses on several occasions, and although the Bank’s explanations
may have varied in depth and detail, they were not materially
inconsistent. When Freeman first met with Temple and Salisbury,
Temple explained that the Bank’s 2002 bonuses were based on the
number of loan officers each LAA supported. Salisbury added that
he thought that the bonuses were discretionary, and Temple
responded that “there’s more to it than that.” J.A. 171. Freeman
then met with Temple a second time, and Temple explained that Fly
13
had been given a higher bonus because she had volunteered to
support a third loan officer when Freeman supported only one.
Finally, counsel for the Bank wrote to Freeman, explaining that the
bonuses were completely discretionary, and that the most important
factor in the Board’s decisions to award the other LAAs higher
bonuses was that they supported more loan officers than she did.
The letter reasoned that Fly’s loan portfolio was more complex than
Freeman’s, Fly’s work was “cleaner,” and Fly had volunteered to
take on a third loan officer. Id. at 257. As this evidence
demonstrates, Freeman was given several consistent explanations for
her smaller bonus award.
Freeman also asserts that her performance was equal to or
superior to the two white LAAs, and that she can rebut each of the
reasons provided by the Bank — and accepted by the district court
— to show that it had legitimately awarded her a lower bonus. The
first and third reasons identified by the court are intertwined:
North State was compensating Fly, who had a lower base salary, for
volunteering to take on extra responsibility, and taking into
account that Freeman was only supporting one loan officer. Freeman
does not contest that Fly supported more loan officers or explain
why the Bank could not legitimately take Fly’s lower salary into
consideration; rather, Freeman contends that she did more work
overall than Fly. To support this assertion, Freeman points to
several extra duties that she did for the Bank (i.e., attending a
14
seminar, picking up flowers, staffing the Bank’s booth at a
business expo, and occasionally providing customer support). None
of these duties, however, were permanent, day-to-day
responsibilities, as opposed to the ongoing duty of supporting a
new loan officer. Moreover, it is well-settled that an employer is
free to develop its own criteria for employment decisions, so long
as those criteria are not race-based. See Beall v. Abbott Labs.,
130 F.3d 614, 619 (4th Cir. 1997) (“It is axiomatic that an
employer is free to set its own performance standards, provided
such standards are not a ‘mask’ for discrimination.” (internal
citations omitted)); see also Jiminez v. Mary Washington College,
57 F.3d 369, 383 (4th Cir. 1995) (“The crucial issue in a Title VII
action is an unlawfully discriminatory motive for a defendant’s
conduct, not the wisdom or folly of its business judgment.”).
Consequently, it was permissible for the Bank to premise its bonus
decisions on the criteria it deemed pertinent, including the number
of loan officers being supported, so long as those criteria were
not race-based.4
The second basis the district court recognized for the
disparity in the 2002 bonuses was that Freeman primarily handled
consumer loans, which were less complex, and Kilmer handled the
4
Although Freeman asserts that she did not volunteer to take
on the additional loan officer because two of her supervisors
advised her that she already had enough work, this contention does
not carry the day. Put simply, those individuals did not
participate in the 2002 bonus decisions.
15
more complicated commercial loans and worked longer hours. Freeman
asserts that this explanation is also pretextual, because the
evidence showed that there is little difference between consumer
and commercial loans in the work required of the LAAs. Although
there may be a factual dispute on whether commercial loans are more
complex and thus more time consuming, even if Freeman is correct
that commercial loans do not require more work than consumer loans,
she still cannot disprove the primary reason the Bank consistently
gave for the differences in the 2002 bonuses. That is, Kilmer and
Fly both supported more loan officers than Freeman. Thus, this
assertion also fails to show that North State’s reasons were
pretextual.
In explaining a Title VII plaintiff’s burden of proof on the
issue of pretext, the Supreme Court has recognized that
an employer would be entitled to judgment as a matter of
law if the record conclusively revealed some other,
nondiscriminatory reason for the employer’s decision, or
if the plaintiff created only a weak issue of fact as to
whether the employer’s reason was untrue and there was
abundant and uncontroverted independent evidence that no
discrimination had occurred.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148
(2000). Because the district court properly concluded that there
is no issue of material fact on the issue of pretext, Freeman’s
racial discrimination claim must fail, regardless of whether she
can establish a prima facie case of such discrimination. For this
16
reason, we are constrained to affirm the award of summary judgment
to North State on this claim.
B.
Second, Freeman maintains that the district court erred in
awarding summary judgment to North State on her claim that her
employment was terminated in retaliation for her complaints about
the disparity in the 2002 bonuses, in contravention of Title VII.
To establish a prima facie case for such retaliation, Freeman was
required to show that (1) she engaged in a protected activity, (2)
the Bank took an adverse employment action against her, and (3)
there is a causal connection between the two events. See EEOC v.
Navy Fed. Credit Union, 424 F.3d 397, 406 (4th Cir. 2005). We
agree with the district court that Freeman has failed to establish
the third prong of this test: a causal connection between the
protected activity and the adverse employment action. See Order 5.
Put simply, Freeman has failed to establish a causal link between
her complaints about the disparity in the bonuses and her
subsequent termination. In fact, when North State terminated her
employment, she had exhausted all of her available leave time, plus
the extra leave that North State had granted her, and still did not
return to work. As a result, Freeman failed to sufficiently
establish a prima facie case for retaliatory discharge, and we
affirm the award of summary judgment on this claim as well.
17
C.
Freeman’s third claim on appeal is that she presented
sufficient evidence of constructive discharge to survive summary
judgment. To establish a claim of constructive discharge, Freeman
was obligated to show that North State “deliberately made [her]
working conditions intolerable, and thereby forced [her] to quit.”
James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 378 (4th Cir.
2004) (internal quotation marks omitted). Mere “dissatisfaction
with work assignments, a feeling of being unfairly criticized, or
difficult or unpleasant working conditions are not so intolerable
as to compel a reasonable person to resign.” Id. Freeman claims
she was constructively discharged twice — first on January 23,
2003, when she left work because she was distraught over being paid
a lower bonus than the two white LAAs, and again through North
State’s “parade of threats, intimidation and coercive tactics in
retaliation for making discrimination claims.” Br. of Appellant
30. We agree with the district court that Freeman failed to show
that North State made her working conditions so intolerable that
she was forced to quit her job, see Order 6, and thus affirm the
court’s award of summary judgment on her constructive discharge
claim.
D.
Finally, Freeman claims that North State acted with racial
animus towards her throughout her employment with the Bank. In
18
making this claim, Freeman relies solely on the fact that she was
paid a lower bonus in 2001 as well as in 2002. The district court
concluded that “[a]lthough the complaint refers to two bonus
decisions, [Freeman] has only exhausted her administrative remedies
as to one, which is at issue here.” Order 2 n.1. Indeed, any
individual wishing to challenge an employment practice under Title
VII must file a charge with the EEOC within 180 days “after the
alleged unlawful employment practice occurred.” 42 U.S.C. § 2000e-
5(e)(1). If the employee fails to submit a timely EEOC charge, she
may not challenge the alleged unlawful practice in court. See
Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162, 2168
(2007) (“A discriminatory act which is not made the basis for a
timely charge . . . is merely an unfortunate event in history which
has no present legal consequences.” (internal quotation marks
omitted)). We agree with the court on this contention as well.
Freeman has never filed an EEOC charge regarding her 2001 bonus
and, thus, any claims relating to it are barred.
IV.
Pursuant to the foregoing, we reject Freeman’s contentions of
error and affirm the district court.
AFFIRMED
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