McCorkle v. Veda Incorporated ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
KAANDRA C. MCCORKLE,
Plaintiff-Appellant,
v. No. 97-1288
VEDA, INCORPORATED,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-96-1063-A)
Argued: March 5, 1998
Decided: July 2, 1998
Before MICHAEL and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Affirmed by unpublished opinion. Senior Judge Phillips wrote the
opinion, in which Judge Michael and Judge Motz joined.
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COUNSEL
ARGUED: Jonathan Christian Dailey, DAILEY & KORTELING,
L.L.C., Washington, D.C., for Appellant. J. Jonathan Schraub,
SCHRAUB & COMPANY, CHARTERED, Alexandria, Virginia, for
Appellee. ON BRIEF: Paige A. Levy, SCHRAUB & COMPANY,
CHARTERED, Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PHILLIPS, Senior Circuit Judge:
In this employment discrimination case, plaintiff Kaandra C.
McCorkle, an African-American female, appeals from the judgment
entered below, challenging an order of the district court granting
defendant Veda Incorporated's ("Veda") motion for summary judg-
ment. We affirm.
I.
Veda is engaged in the business of contracting with commercial
and federal agencies to provide professional services and management
of military defense assets. On March 5, 1990, Michael Charters, a
Veda executive, hired McCorkle, over at least one white male appli-
cant, to work at Veda on logistical support duties respecting one of
its government contracts.
In September 1990, Charters completed McCorkle's first perfor-
mance evaluation, giving her an overall rating of 3.0.1 In her second
review, dated March 1991, Charters gave McCorkle an overall rating
of 3.4.
In late 1991, Charters reassigned McCorkle to different "contract
reconciliation" duties than those she had been performing. McCork-
le's old office and duties were assigned to Bob Lindley, a white male
McCorkle had competed against for her initial position. McCorkle's
pay and other financial benefits were not affected.
On September 26, 1994, McCorkle sent a letter to Veda's Bill
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1 There are five categories in Veda's rating scale: 1 (unsatisfactory); 2
(needs improvement); 3 (performs satisfactorily); 4 (exceeds perfor-
mance expectations); and 5 (sets the highest standards).
2
Deihm complaining that for the last three years, Charters had racially
and sexually discriminated against her. According to Veda, after
receiving McCorkle's complaints and those from other female Veda
employees, Charters was demoted, removed from the bonus program,
issued a letter of reprimand, asked to apologize to the women,
required to attend training, and warned that if Veda received any "fur-
ther allegations of inappropriate behavior . . . which can be substanti-
ated," he would be terminated. (J.A. 423.) McCorkle contends that
Charters was never actually demoted.
From 1994 to February, 1996, McCorkle made no further com-
plaints about Charters. Then, on February 5, 1996, McCorkle met
with Pat Ryan and complained that Charters was "continuing with his
treatment towards [her]" and that he was"a racist." (Id. at 501.)
At the end of February 1996, Charters prepared McCorkle's perfor-
mance review for the March 1995 to February 1996 period, giving her
an overall rating of 3.4. McCorkle attached comments to the review,
challenging Charters's ratings in various categories.
McCorkle's complaints prompted Veda to hire outside legal coun-
sel to investigate Charters. The investigation concluded that Charters
did not discriminate against McCorkle. However, because of "person-
ality conflicts" between the two employees, Veda offered to transfer
McCorkle to a group headed by Norman Cratsenberg. McCorkle
accepted.
On March 4, 1996, McCorkle filed an Equal Employment Opportu-
nity Commission ("EEOC") charge of discrimination; on March 13,
1996, she received a right to sue letter. On June 11, 1996, McCorkle
and three other female Veda employees sued Veda for employment
discrimination. McCorkle alleged that by reassigning her to reconcili-
ation duties in 1991, Veda had discriminated against her on the basis
of race and sex in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., the Virginia Human Rights Act, Va.
Code. Ann. § 2.1-714 et seq., and 42 U.S.C. § 1981. On June 20,
1996, McCorkle tendered her resignation from Veda, effective June
28, 1996. In due course, Veda moved for summary judgment on
McCorkle's claims and the district court granted Veda's motion on
the grounds that they were time-barred. McCorkle appeals, challeng-
3
ing only the district court's dismissal of her Title VII and § 1981
claims.
II.
This court reviews de novo the district court's summary judgment
ruling. See Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162,
1167 (4th Cir. 1988). Summary judgment is proper where there is no
genuine issue as to any material fact and the moving party is entitled
to judgment as a matter of law. See Fed. R. Civ. P. 56(c).
A.
McCorkle alleges that her 1991 "demotion" was motivated by race
and gender in violation of Title VII. Title VII requires that plaintiffs
file complaints with the EEOC within 180 days of the discriminatory
action, or within 300 days if state or local proceedings are instituted.
See 42 U.S.C. § 2000e-5(e)(1). Here, no state or local proceedings
were initiated and McCorkle did not file her EEOC complaint until
March 4, 1996, well over 180 days after the alleged demotion
occurred.
Notwithstanding her failure to timely file an EEOC charge,
McCorkle contends that her Title VII claim is saved from time bar by
application of the continuing violation theory. The continuing viola-
tion theory operates to save untimely claims that"can be related to a
timely incident as a ``series of separate but related acts' amounting to
a continuing violation." Beall v. Abbott Labs., 130 F.3d 614, 620 (4th
Cir. 1997) (quoting Jenkins v. Home Ins. Co., 635 F.2d 310, 312 (4th
Cir. 1980) (per curiam)). As we have noted, however, an allegation
of a continuing violation is not a "talismanic or shibboleth term auto-
matically relieving a claimant of any obligation to comply with the
statutory time requirement for filing a charge with the EEOC under
Title VII." Hill v. AT & T Techs., Inc., 731 F.2d 175, 179-80 (4th Cir.
1984). As a threshold matter, the theory will not apply unless there
is a present violation within the 180-day time period. See Woodard
v. Lehman, 717 F.2d 909, 915 (4th Cir. 1983) ("It is only where an
actual violation has occurred within that requisite time period that
under any possible circumstances the theory of continuing violation
is sustainable.") (emphasis in original).
4
Since McCorkle's EEOC complaint was not filed until March 4,
1996, her Title VII claim is saved from time bar only if there was a
later, sufficiently related violation that occurred on or after September
6, 1995. McCorkle asserts as the requisite later violations the various
incidents that she identified in her comments attached to her 1996
performance review. These, she says "set[ ] forth how Charters con-
tinued his adverse actions . . . well past September 6, 1995." (Appel-
lant's Br. at 20.) In the comments attached to her 1996 review,
McCorkle challenged the "performs satisfactorily" ratings Charters
gave her in various categories. In the area of "Project Execution -
Task Planning," McCorkle argued that the rating was inappropriate
because she was "prohibited from participating in any of the rating
areas set for this criteria" and that her input was rejected. (J.A. 722.)
McCorkle also challenged her rating for "Project Execution - Task
Execution," complaining that Charters held up her work and gave her
no feedback and that her assignments were "far and few between."
(Id.) McCorkle argued that her "Project Execution - Coordination/
Cooperation" rating was unfair because Charters excluded her from
conversations with the other group members, gave her no direction,
and failed to inform her of group goals. (Id. ) McCorkle challenged
her "Project Evaluation - Staff Support" rating, complaining that she
was "prohibited from sharing [her] knowledge with anyone," and that
her input was "overlooked." (Id. at 723.) Finally, McCorkle chal-
lenged her ratings in the "Program Development" categories of "Mar-
keting Target Identification" and "Marketing Support," complaining
they were unjustified because she was "prohibited from making any
outside contact." (Id.)
In addition to offering the incidents described in her comments to
her 1996 review as later related violations triggering the continuing
violation theory, McCorkle offers the incidents complained of during
her February 5, 1996 meeting with Ryan. Specifically, McCorkle
notes that at the meeting she complained that Charters "continued to
refuse to share reconciliation information with her," "refused to allow
her to go to [the government contract customer] to learn the most
recent changes to reconciliation procedures and guidelines," that "the
demotion and change in office had affected her ability to work effec-
tively within the group," and that her 2% merit increase in 1995 was
"well below" the increases she received prior to her reassignment to
reconciliation. (Appellant's Br. at 13, 21.)
5
Aside from the merit increase, neither McCorkle's comments to her
1996 review nor the complaints allegedly made at the February 5,
1996 meeting describe any adverse employment actions. As this court
has stated, "[i]n no case in this circuit have we found an adverse
employment action . . . without evidence that the terms, conditions,
or benefits of [plaintiff's] employment were adversely affected."
Munday v. Waste Management Of N. Am., Inc., 126 F.3d 239, 243
(4th Cir. 1997), cert. denied, 118 S. Ct. 1053 (1998). Other than the
merit increase, none of the incidents complained of affected the terms,
conditions or benefits of McCorkle's employment. As for the merit
increase, assuming it was given on or after September 6, 1995, there
is no evidence that this action was in any way related to the 1991 "de-
motion."
McCorkle also argues that she experienced "continued acts by
Charters in the form of his refusal to communicate with her, his favor
of white men in terms of training, overtime, and access to [the gov-
ernment contract customer], and his constant sexist and racist state-
ments to her." (Appellant's Br. at 20.) McCorkle cites no evidence in
the record substantiating these charges. We note that McCorkle's Sep-
tember 26, 1994 letter to Deihm alleged that Charters engaged in this
behavior. Because of the date of the letter, however, the alleged inci-
dents could not have occurred after September 6, 1995. We need not,
therefore, address whether these actions constitute adverse employ-
ment actions or whether they were related to the 1991 "demotion."
Finally, relying on Jenkins, 635 F.2d 310, McCorkle argues that
Veda's "refusal to restore [her] to her management position" is a
"manifestation of continued discrimination." (Appellant's Br. at 23.)
In Jenkins, plaintiff sued her former employer, The Home Insurance
Company, alleging violations of Title VII and the Equal Pay Act.
Plaintiff, who was hired by Home in September, 1969, alleged that
Home paid her less than her male counterparts who performed the
same work and that she became aware of the wage discrepancy in
1975. In the summer of 1976, plaintiff's manager told her that the dis-
crepancy was due to her low starting salary. In May, 1978, plaintiff
filed an EEOC action. In December, 1978, she filed suit in federal
court. The district court granted defendant's motion for summary
judgment, concluding that plaintiff's claims were time barred because
the violations giving rise to them occurred when she was hired at the
6
lower salary and accrued on that date or, at the latest, upon her dis-
covery of the violations. This court reversed, stating:
[Home's] alleged discriminatory violation occurred in a
series of separate but related acts throughout the course of
[plaintiff's] employment. Every two weeks, Jenkins was
paid for the prior working period; an amount less than was
paid her male counterparts for the same work covering the
same period. Thus, [Home's] alleged discrimination was
manifested in a continuing violation which ceased only at
the end of [plaintiff's] employment.
Id. at 312.
In Jenkins, this court found a continuing violation in plaintiff's
continued receipt of diminished paychecks. This case differs from
Jenkins because here when McCorkle was moved into contract recon-
ciliation duties, her salary was not reduced; rather, it remained
unchanged at $46,932.00. (J.A. 139.) Thus, Jenkins does not control.
Because McCorkle has presented no evidence of a Title VII viola-
tion continuing into the timely charge period, the district court did not
err in dismissing her Title VII "demotion" claim as time-barred.
B.
McCorkle's § 1981 claim is controlled by a two-year statute of lim-
itations borrowed from Va. Code Ann. § 8.01-243(A). The instant
lawsuit was filed on June 11, 1996. Thus, any claim arising before
June 11, 1994 is time barred. Relying on the same arguments made
with regard to her Title VII claim, McCorkle contends that her § 1981
demotion claim is saved by the continuing violation theory. For the
reason discussed above, this argument cannot succeed.2
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2 We reject any suggestion made in McCorkle's brief that her case
includes a claim for constructive discharge. Neither McCorkle's EEOC
charge nor her complaint allege constructive discharge. Nor could they
as both were filed before she resigned from Veda.
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III.
Because we find that McCorkle's Title VII and § 1981 demotion
claims are not saved from time bar by the continuing violation theory,
the judgment of the district court is
AFFIRMED.
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