Schulze v. Meritor Automotive, Inc. , 13 F. App'x 89 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
TERRY SCHULZE, 
Plaintiff-Appellant,
and
STEVE WELLS,
Party in Interest,  No. 00-1779
v.
MERITOR AUTOMOTIVE, INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Max O. Cogburn, Magistrate Judge.
(CA-99-4-1-C)
Argued: May 10, 2001
Decided: June 21, 2001
Before NIEMEYER and GREGORY, Circuit Judges, and
Arthur L. ALARCON, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Geraldine Sumter, FERGUSON, STEIN, WALLAS,
ADKINS, GRESHAM & SUMTER, P.A., Charlotte, North Carolina,
2 SCHULZE v. MERITOR AUTOMOTIVE, INC.
for Appellant. Margaret Hutchins Campbell, OGLETREE,
DEAKINS, NASH, SMOAK & STEWART, P.C., Atlanta, Georgia,
for Appellee. ON BRIEF: A. Bruce Clarke, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Terri Schulze appeals the district court’s order granting summary
judgment in favor of her former employer, Meritor Automotive, Inc.
("Meritor") in her civil action arising out of alleged acts of sexual
harassment committed by the plant manager at Meritor’s factory in
Fletcher, North Carolina. Schulze’s complaint alleged unlawful retali-
ation under federal and state law and state-law claims for negligent
retention and negligent and intentional infliction of emotional dis-
tress. After a careful review of the record and consideration of the
parties’ arguments, we find no reversible error.
In affirming for substantially the same reason offered by the magis-
trate judge,*see Schulze v. Meritor Automotive, No. 1:99CV4-C
(W.D.N.C. May 26, 2000), we make the following additional obser-
vations. First, with regard to her Title VII retaliation claim, Schulze
offered evidence of only one act by Meritor Automotive — its failure
to grant her exempt status with better pay and benefits — that could
arguably constitute an "adverse employment action" under Title VII.
See Von Gunten v. Maryland, 243 F.3d 858, 866 (4th Cir. 2001). But
even with regard to that claim, Schulze failed to provide evidence to
rebut as pretextual the legitimate, nondiscriminatory reason offered
by Meritor for its action — that the position had been classified as
*This case was decided by a magistrate judge upon consent of the par-
ties under 28 U.S.C. § 636(c).
SCHULZE v. MERITOR AUTOMOTIVE, INC. 3
nonexempt at the time the position was created, well before Schulze
complained of harassment and that the nonexempt status actually ben-
efited Schulze. See Williams v. Cerberonics, Inc., 871 F.2d 452, 457
(4th Cir. 1989).
Second, North Carolina does not recognize a cause of action for
discriminatory retaliation that does not result in a discharge. See
Smith v. First Union Nat’l Bank, 202 F.3d 234, 247 (4th Cir. 2000)
(holding that the North Carolina Equal Employment Practices Act,
N.C. Gen. Stat. § 143-422.1 et seq., does not create a private cause
of action). Moreover, any state-law claim involving retaliation would
fail for the same reason as the Title VII-based claim. See N.C. Dep’t
of Corr. v. Gibson, 301 S.E.2d 78, 82 (N.C. 1983) (North Carolina
"look[s] to federal decisions for guidance in establishing evidentiary
standards and principles of law to be applied in discrimination
cases").
Finally, Schulze has not provided sufficient evidence to proceed
with her other state-law claims. Even when the evidence in the record
is construed in a light most favorable to Schulze, the plant manager’s
actions did not "exceed all bounds usually tolerated by a decent soci-
ety" and did not give rise to an intentional infliction of emotional dis-
tress claim. Stanback v. Stanback, 254 S.E.2d 611, 622 (N.C. 1979).
In addition, Schulze has made no showing that the acts of which she
complains were attributable to Meritor under the agency principles
established by North Carolina law or that Meritor’s negligence caused
these acts. See Vaughn v. N.C. Dep’t of Human Res., 252 S.E.2d 792,
795 (N.C. 1979); Harrison v. Edison Bros. Apparel Stores, Inc., 924
F.2d 530, 534 & n.4 (4th Cir. 1991) (interpreting North Carolina law);
see also Faragher v. City of Boca Raton, 524 U.S. 775, 793-808
(1998) (discussing the relevance of common-law agency principles to
the issue of vicarious employer liability under Title VII).
Accordingly, the judgment of the district court is
AFFIRMED.