Shields v. Federal Express Corp.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-2103
MICHAEL D. SHIELDS,
Plaintiff - Appellant,
and
RVA PENDLETON,
Plaintiff,
versus
FEDERAL EXPRESS CORPORATION; PATRICK J.
QUIRKE,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.
(CA-02-1783-MJG)
Argued: October 28, 2004 Decided: January 19, 2005
Before WILKINS, Chief Judge, and MICHAEL and TRAXLER, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Richard Lee Swick, SWICK & SHAPIRO, P.C., Washington, D.C.,
for Appellant. Michael Edwin Gabel, FEDERAL EXPRESS CORPORATION,
Memphis, Tennessee, for Appellees. ON BRIEF: Eric Hemmendinger,
SHAWE & ROSENTHAL, L.L.P., Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Michael D. Shields appeals the order of the district court
granting summary judgment to Federal Express Corporation (“FedEx”)
on his Title VII claims alleging that he was subjected to disparate
treatment based on race, racially hostile working conditions, and
retaliation for his opposition to FedEx’s illegal employment
practices. We agree with the district court and affirm its ruling.
I.
Shields worked for FedEx from 1981 until his termination in
February 2001. Shields, an African American, apparently received
high performance evaluations during most of his tenure at FedEx.
By 1989, Shields had obtained the level of manager, and, by January
2000, he had been promoted to the position of Senior Manager in
charge of the Herndon, Virginia station (known as the “BCB”
station).
In July 2000, Patrick Quirke became the Managing Director of
FedEx’s Capital District, which included the BCB station. As the
Managing Director, Quirke ranked in the corporate hierarchy
immediately above Shields and the other Senior Managers in the
Capital District. Shields therefore reported to Quirke, who is
Caucasian, on issues related to the performance of the BCB station.
Shortly after Quirke assumed his new position, he concluded
that the BCB station was not meeting the standard, company-wide
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performance objectives in a number of areas. FedEx had established
standards for evaluating the overall performance of Senior Managers
and other employees through its Functional Operating Plan (“FOP”),
which established standards such as the number of hours employees
were to work during a given “phase of the station’s operation.”
J.A. 548. The FOP standards were tailored somewhat to account for
the historical performance of each station. Shields, like any
Senior Manager, could seek a modification to reduce performance
goals if conditions warranted such a change. Shields’s performance
was also measured against a station budget established by the FedEx
Finance Department, which specified the number of packages that
should be handled and sorted by the BCB station during a given
period of time. Finally, Shields was evaluated based on his
ability to meet prescribed goals relating to client service,
profitability, and management skills.
During the time that Shields served as Senior Manager of the
BCB station, the station did not meet many of the standard
performance objectives. Shields acknowledged during his deposition
that the station fell short of its productivity goals, and, on
appeal, he does not dispute that the BCB station also did not meet
FedEx’s performance expectations in other areas, such as safety,
volume, employee retention, and cost per package.
From August 2000 to October 2000, FedEx Vice President John
Formisano and Senior Vice President Ken May received a series of
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emails from hourly employees at the BCB station complaining that
the crush of overtime hours, in addition to Shields’s inability to
communicate effectively, created an impediment to good morale in
the BCB station, which had a higher rate of employee turnover than
any other station in the Capital District. On October 7, Quirke
met with Shields’s subordinates to discuss “multiple complaints
regarding Mr. Shields’[s] management style, his demeanor, his
treatment of hourly employees, and the lack of communications by
and between management.” J.A. 551.
Against this backdrop, Quirke scheduled a meeting with Shields
on October 10, 2000, to discuss the various performance
deficiencies. Quirke suggested Shields step down to a lower Senior
Manager position –- Shields would have been relieved of
responsibility for the BCB station but could have continued to
manage another station in Winchester, Virginia –- as an alternative
to “receiving discipline for the performance deficiencies that
[Quirke] outlined for him.” J.A. 551. Shields rejected this
option. In turn, Quirke was obligated to follow FedEx’s
Performance Improvement Policy (“PIP”) to address the problems at
the BCB station. Pursuant to the PIP, Shields was required to
create a Performance Agreement detailing the specific remedial
steps Shields planned to take in order to improve his performance
deficiencies and the morale problems at the BCB station.
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Quirke rejected Shields’s proposed Performance Agreement for
failure to delineate the specific measures Shields intended to take
to improve his performance. With Quirke’s assistance, Shields
eventually produced a Performance Agreement that was sufficiently
specific for Quirke and Shields signed the agreement in October
2000.
In the ensuing three months, however, Shields failed to meet
or follow various goals established in the Performance Agreement.
Although failure to follow a Performance Agreement can provide
grounds for termination under FedEx’s PIP, Quirke issued Shields a
performance reminder on January 8, 2001, and informed Shields that
he would have to improve substantially to merit a satisfactory
performance evaluation score. Additionally, Quirke offered Shields
a severance package if he opted to resign instead of risking
additional sanctions for poor performance. Shields rejected the
severance package. On February 19, 2001, Shields received an
unsatisfactory overall performance rating. Quirke then directed
Shields to submit a second Performance Agreement, but Shields was
not able to submit a proposal that was specific enough for Quirke.
Quirke ultimately terminated Shields as a result of his having
received three disciplinary letters within a 12-month period --
grounds for termination under the FedEx PIP.
Shields contends that his poor performance evaluations, his
placement in the PIP, and ultimately his dismissal, were
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retaliatory acts by Quirke in response to what Shields claims was
his opposition to illegal employment practices by FedEx.
Specifically, Shields claims that Quirke retaliated against him
because he reported two instances of racial discrimination in
September 2000. The first instance involved an incident that
occurred at the BCB station on Shields’s day off. Manager Rva
Pendleton, who was under the direct supervision of Shields, became
involved in a dispute with Noelle Olson, a courier at the BCB
station, and eventually terminated Olson as a result of her
conduct. Olson challenged her termination through FedEx’s internal
grievance procedure, which led to an investigation of the incident
by Quirke. Quirke concluded that Pendleton had acted
inappropriately in her capacity as a manager by provoking the
confrontation, and he directed Shields to issue Pendleton a formal
Warning Letter -- a very serious form of discipline at FedEx.
Although Shields issued the Warning Letter as he was instructed, he
told Quirke that he disagreed with this mode of punishment. First,
Shields believed that a Warning Letter was unwarranted and that a
less severe “documented counseling” was more appropriate in light
of Pendleton’s inexperience as a manager. Second, Shields claims
that he told Quirke that any discipline administered to Pendleton
should likewise be administered to Cliff Dalton, another manager
under Shields’s supervision who was on duty that day. According to
Shields, both Pendleton and Dalton “tr[ied] to handle this
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disruptive employee,” J.A. 122, and thus he urged Quirke not to
punish Pendleton more severely than Dalton. In Shields’s mind, the
only difference between Pendleton, who is black, and Dalton, who is
white, was race. Ultimately, however, Shields never mentioned
race. Although Shields advocated uniform treatment for Pendleton
and Dalton, he never suggested to Quirke or to anyone else at FedEx
that Pendleton was being treated more harshly because of her race.1
The second incident underlying Shields’s retaliation claim
involved a racial slur against Shields that was not uttered in his
presence but was reported to Shields by Dalton. In September 2000,
Bobby Richesin, an hourly worker who reported directly to Shields,
referred to Shields in racially offensive terms and crude
pejorative terms relating to Shields’s sexual orientation.
Although Shields decided to suspend Richesin, he first consulted
Dick Schmidt, the Human Resources manager for the Capital District.
Schmidt cautioned Shields about reacting in an “emotional” fashion
and suggested that Shields consider Richesin’s ten-year employment
history at FedEx before acting. Shields also discussed the matter
with Quirke, who, according to Shields, concurred with Schmidt.
Nevertheless, Shields suspended Richesin for six weeks pending an
investigation of the incident. Quirke ultimately decided that
“Richesin had made inappropriate remarks in the presence of hourly
1
Subsequently, Pendleton filed an internal grievance and
succeeded in having the discipline imposed against her modified to
that initially recommended by Shields -- a documented counseling.
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co-workers,” J.A. 562, and concluded that the appropriate sanction
was a formal Warning Letter and a transfer to another station.
Richesin opted to resign.
In this lawsuit, Shields asserts three claims against FedEx
under Title VII. First, he claims that he was subjected to a
racially hostile work environment at the BCB station. Second,
Shields contends that FedEx subjected him to disparate treatment by
terminating him for poor performance when it did not impose a like
sanction on two similarly situated white Senior Managers. Third,
Shields argues that FedEx gave him poor performance evaluations and
ultimately terminated him in retaliation for his objecting to
Pendleton’s discipline and reporting Richesin’s racial slurs --
protected activities under Title VII, Shields argues. The district
court granted summary judgment to FedEx on each of these claims.
Shields now appeals the ruling of the district court.2
II.
A.
Shields seems to believe that a hostile work environment
existed because of the statements Richesin made to a co-employee
2
Shields named Quirke as a defendant in his individual
capacity. The district court dismissed Quirke from the action as
an improper defendant. See Lissau v. Southern Food Service, Inc.,
159 F.3d 177, 181 (4th Cir. 1998). The district court’s ruling was
clearly correct, and Shields does not appeal this portion of the
district court’s order.
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which were ignored by management. To get this claim to trial,
Shields “must demonstrate that a reasonable jury could find [the]
harassment (1) unwelcome; (2) based on race; and (3) sufficiently
severe or pervasive to alter the conditions of employment and
create an abusive atmosphere.” Spriggs v. Diamond Auto Glass, 242
F.3d 179, 183-84 (4th Cir. 2001). Then, even if Shields creates an
issue of fact with respect to each of these elements, he must
demonstrate “that there is some basis for imposing liability” upon
FedEx for Richesin’s conduct. Id. at 184 (internal quotation marks
omitted).
The district court concluded that Shields failed to produce
sufficient evidence for a trier of fact to find that the alleged
harassment was so “severe and pervasive” that it “alter[ed] the
terms and conditions of employment.” J.A. 375. In his appellate
brief, Shields does not develop a separate and independent argument
contesting the district court’s rejection of Shields’s hostile work
environment claim. However, in arguing that FedEx retaliated
against him because he reported the racially offensive language
used in the workplace, Shields essentially claims that a racially
hostile work environment existed at the BCB FedEx station. Like
the district court, we fail to see sufficient evidence that the
unwelcome conduct at issue was “severe and pervasive” for purposes
of a Title VII hostile work environment claim.
10
Shields suggests that the singularly offensive racial slur
used by Richesin, coupled with what Shields perceived to be upper
management’s laissez-faire attitude about such conduct, was
sufficient to satisfy the prima facie elements in this case.
Shields relies on our own observations about the impact of the
sanctioned use of this particular term on a given work environment:
“Perhaps no single act can more quickly alter the conditions of
employment and create an abusive working environment than the use
of an unambiguously racial epithet such as ‘nigger’ by a supervisor
in the presence of his subordinates.” Spriggs, 242 F.3d at 185(internal quotation marks omitted). Of course, whether Richesin’s
slur was highly offensive, unwelcome, and racially motivated is not
the issue -- clearly, it was. Rather, the question is whether the
use of racial epithets and abusive language so pervaded the work
environment at the BCB station that it was essentially transformed
into an atmosphere tinged with racial hostility and altered the
conditions of Shields’s employment. “As a general rule, incidents
must be more than episodic; they must be sufficiently continuous
and concerted in order to be deemed pervasive.” Feingold v. New
York, 366 F.3d 138, 150 (2nd Cir. 2004) (internal quotation marks
omitted). Thus, “isolated incidents (unless extremely serious)
will not amount to discriminatory changes in the ‘terms and
conditions of employment.’” Faragher v. City of Boca Raton, 524
U.S. 775, 788 (1998) (emphasis added).
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There are obvious and substantial differences between this
case and Spriggs. Spriggs involved “frequent” and “pervasive” use
of racially degrading insults that substantially impeded the
victim’s “ability to concentrate” or “effectively interact with
. . . customers.” Spriggs, 242 F.3d at 185-86 (internal quotation
marks omitted). Shields, on the other hand, bases his claim on a
single racial slur that was not uttered in his presence. Another
distinguishing factor is that Shields wielded supervisory power to
make Richesin cease making his racist comments by suspending him.
In sum, there is no evidence that the workplace environment at the
BCB station, for which Shields was largely accountable, was
racially oppressive, hostile, or abusive. Thus, we affirm the
district court’s grant of summary judgment as to the hostile work
environment claim.
B.
In order to clear the summary judgment hurdle on his
retaliation claim, Shields must demonstrate that “(1) [he] engaged
in a protected activity: (2) the employer took an adverse
employment action against [him]; and (3) a causal connection
existed between the protected activity and the asserted adverse
action.” Von Gunten v. Maryland, 243 F.3d 858, 863 (4th Cir.
2001). An employee who “oppose[s] any practice made an unlawful
employment practice by [Title VII]” has engaged in protected
activity. 42 U.S.C.A. § 2000e-3(a) (West 2003); see Kubicko v.
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Ogden Logistics Servs., 181 F.3d 544, 551 (4th Cir. 1999) (noting
that “protected activities” may consist of either “opposition” or
“participation” activities). Protected “[o]pposition activity
encompasses utilizing informal grievance procedures as well as
staging informal protests and voicing one’s opinions in order to
bring attention to an employer’s discriminatory activities.”
Kubicko, 181 F.3d at 551 (internal quotation marks omitted). A
plaintiff need not demonstrate that the employer has actually
violated Title VII; rather, the plaintiff must show that “he
opposed an unlawful employment practice which he reasonably
believed had occurred or was occurring.” Peters v. Jenney, 327
F.3d 307, 320 (4th Cir. 2003) (internal quotation marks omitted).
The district court granted FedEx’s motion for summary judgment
on the retaliation claim, reasoning that Shields failed to
demonstrate he had engaged in protected activity. Specifically,
the district court concluded that there was “no evidence that
[Shields] sought to expose any discriminatory activity,” J.A. 381,
when he expressed disagreement with Quirke’s intended course of
discipline for Pendleton, and thus there was no protected activity.
Likewise, the district court concluded Shields’s objection to the
racial slur did not qualify as opposition activity because Shields
could not have reasonably believed that such conduct violated Title
VII since Shields “was accosted by a subordinate, reported the
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offensive behavior, and compelled action against the subordinate.”
J.A. 382.
On appeal, Shields argues that he was engaged in opposition
activity for purposes of Title VII because he reasonably believed
that he was opposing disparate treatment of Pendleton that could
only be explained in terms of race, and that he was opposing
unlawful racial harassment related to Richesin’s conduct. See
Alexander v. Gerhardt Enters., Inc., 40 F.3d 187, 195-96 (7th Cir.
1994) (concluding that it was protected activity for an employee to
send company officials a memorandum reporting supervisor’s use of
single racial slur). Even assuming that Shields’s actions
constituted protected activity, we hold that summary judgment was
nevertheless appropriate because Shields failed to provide
sufficient evidence of a causal link between the protected activity
and the alleged adverse employment actions. Although the district
court did not rest its holding on this basis, we may affirm summary
judgment for any reason supported by the record. See Republican
Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992).
A plaintiff claiming retaliation must establish that the
employer had knowledge of the protected activity in order for its
subsequent adverse employment actions to be retaliatory. See
Luckie v. Ameritech Corp., 389 F.3d 708, 715 (7th Cir. 2004) (“[A]n
employer cannot retaliate when it is unaware of any complaints” of
illegal employment practices. (internal quotation marks omitted)).
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Although Shields voiced his disagreement regarding Quirke’s
proposed discipline of Pendleton, it is undisputed that Shields did
not communicate to Quirke or any one else at FedEx that he was
opposing what he believed to be a racially discriminatory action.
Instead, Shields’s own testimony revealed that his complaints
focused on basic fairness as he believed that Pendleton should have
been afforded leniency because of her inexperience, and that Dalton
should receive identical discipline. Having presented no evidence
of Quirke’s knowledge that Shields was engaged in protected
activity when he opposed the discipline administered to Pendleton,
Shields failed to show the required causal link to the alleged
adverse employment actions.
We likewise conclude that the lack of evidence showing
causation defeats Shields’s retaliation claim to the extent it is
based on his complaint to Quirke and Schmidt, the Human Resources
manager, about employee Richesin’s use of a racial epithet.
Shields’s only evidence of causation is the temporal proximity of
the protected activity and the alleged adverse employment action
taken by FedEx. Generally speaking, temporal evidence alone cannot
establish causation for a prima facie case of retaliation, unless
the “temporal proximity between an employer’s knowledge of
protected activity and an adverse employment action” was “very
close.” Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273
(2001) (per curiam) (internal quotation marks omitted). Clark does
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not establish the outer boundaries for temporal proximity to be
considered “very close,” but it does cite examples of insufficient
temporal proximity -- evidence that the employer took the adverse
action three or four months after the protected activity cannot
alone establish causation. See id. at 273-74. After the Clark
decision, we concluded that a ten-week gap between protected
activity and termination “gives rise to a sufficient inference of
causation” but was “sufficiently long so as to weaken significantly
the inference of causation between the two events.” King v.
Rumsfeld, 328 F.3d 145, 151 & n.5 (4th Cir.), cert. denied, 124 S.
Ct. 922 (2003).
According to Shields, the relatively short gap between the
time he reported Richesin’s despicable workplace language and the
time Shields suffered an adverse employment action gives rise to an
inference of causation. Shields argues that even before he was
terminated on February 26, 2001, FedEx took various adverse
employment actions against him, including the issuance of an
unsatisfactory rating on his formal performance evaluation on
February 19, 2001, and even the issuance of a Performance
Reminder/Warning Letter on January 8, 2001. Assuming for the sake
of analysis that the Performance Reminder qualified as an adverse
employment action, see Roberts v. Roadway Exp., Inc., 149 F.3d
1098, 1104 (10th Cir. 1998), Shields’s only evidence that a causal
link existed is the fact that only three to four months passed
16
between Shields’s protected activity and the first warning letter
he received. He argues that this evidence is sufficient to get him
by summary judgment, given that it is consistent with Carter v.
Ball, 33 F.3d 450, 460 (4th Cir. 1994), where the four-month gap
separating a protected activity -- Carter’s filing of formal EEO
charges -- from Carter’s demotion was sufficient to establish the
requisite causal link. We disagree. First, the Supreme Court
issued Clark County after our decision in Carter, casting some
doubt on the extent to which we can use a four-month gap alone as
sufficient proof of causation. Second, even before the Richesin
incident in September 2000, Quirke “became aware that the BCB
station was not meeting performance expectations.” J.A. 549. FedEx
introduced documentary evidence to this effect from Shields’s file
detailing a number of problems at the BCB station. Additionally,
Quirke, having received extensive emails from the hourly BCB
employees, had good reason for concern about Shields’s management
style before Shields ever discussed Richesin’s behavior with him.
Shields presented no further evidence demonstrating that his
discipline and termination were linked in any way whatsoever to his
complaint of Richesin.
Accordingly, we affirm the grant of summary judgment to FedEx
on the retaliation claim.
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C.
Finally, Shields challenges the district court’s entry of
summary judgment against him on his disparate treatment claim. The
thrust of this claim is that Shields suffered more severe
consequences for failure to meet performance expectations than did
two similarly-situated Senior Managers, Clint Barnes and Charlie
Hergesheimer, both of whom are white. The district court held that
Shields failed to proffer sufficient evidence to create a question
of fact on the issue of whether he was treated differently than
Barnes and Hergesheimer. We affirm.
In the context of a discipline case, the familiar elements of
a prima facie showing are that (1) plaintiff belongs to a protected
class; (2) plaintiff “engaged in prohibited conduct similar to that
of a person of another race;” and (3) “that disciplinary measures
enforced against the plaintiff were more severe than those enforced
against the other person.” Moore v. City of Charlotte, 754 F.2d
1100, 1105-06 (4th Cir. 1985). Only the third element remains an
issue on appeal.
Barnes was the Senior Manager of a station in the same
district as the BCB station. In February 2001, Quirke issued
Barnes a Performance Evaluation with unsatisfactory ratings in two
of ten categories -- certainly not an enviable score, but, unlike
Shields, Barnes still obtained an acceptable overall total. Just
like Shields, Barnes submitted and followed a Performance
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Agreement. Barnes realized some gains in the deficient categories,
but he did not achieve the level of progress anticipated by Quirke.
Like Shields, Barnes received a Performance Reminder when he failed
to reach the target performance levels. Ultimately, Barnes asked
to be transferred back to a manager position once again, with a
three-grade level reduction in pay.
Hergesheimer was the Senior Manager of a station in Alexandria
that was under Quirke’s supervision in the Capital District.
Hergesheimer had only been on the job for six months when Quirke,
reviewing the station’s deficient performance, asked Hergesheimer
to accept a demotion to a manager position in Maryland at a three-
level reduction salary. Hergesheimer agreed.
All three were deficient in their job performances as managers
and each was given the same chance to accept a demotion in order to
avoid further disciplinary action. In other words, they were each
treated the same. The fact that the Caucasian managers chose the
demotions and Shields chose a challenge he would eventually lose
does not show at all disparate disciplinary measures by FedEx.
Accordingly, for the reasons set forth above and stated in the
opinion of the district court, we affirm the ruling of the district
court on Shields’s disparate treatment claim.
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III.
For the reasons set forth above, we affirm the ruling of the
district court.
AFFIRMED
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