Peterson v. Lanier Worldwide Inc

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BERNARD L. PETERSON,
Plaintiff-Appellant,
v. No. 95-1222
LANIER WORLDWIDE, INCORPORATED,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CA-94-439-R)
Submitted: July 25, 1996
Decided: August 12, 1996
Before LUTTIG and MOTZ, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Sa'ad El-Amin, EL-AMIN & CRAWFORD, P.C., Richmond, Vir-
ginia, for Appellant. Daniel M. Shea, C. Adair Bledsoe, SMITH,
CURRIE & HANCOCK, Atlanta, Georgia; Robert H. Patterson, Jr.,
Eva S. Tashjian-Brown, MCGUIRE, WOODS, BATTLE &
BOOTHE, L.L.P., Richmond, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Bernard L. Peterson ("Peterson") appeals from the district court's
grant of summary judgment in favor of Lanier Worldwide, Inc.
("Lanier"), on his claim of racially motivated constructive discharge
under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000e
to 2000e-17 (West 1981 & Supp. 1996).1 The district court found that
Peterson did not establish a prima facie case of constructive discharge
due to his race because his working conditions were not intolerable
nor did Lanier deliberately intend to force him to resign. We affirm.
I.
Peterson, a black male, joined Lanier as a customer service repre-
sentative in 1978. In 1982, Lanier promoted Peterson to district ser-
vice manager ("DSM"), and he continued to work as a DSM until he
resigned in July 1993 at age forty-five. In February 1993, Lanier
implemented a nationwide reorganization and reduction in force that
eliminated four of seventeen DSM positions in Peterson's region;
Peterson's position was one of the four.
Lanier based its decision to reclassify Peterson on two factors.
First, Lanier compiled a stack ranking of all DSMs from a composite
score derived from seniority with Lanier, seniority as a DSM, and
percentage attainment of annual operating plan for profit and revenue
_________________________________________________________________
1 Because Peterson did not present any arguments in his brief regarding
his age discrimination and 42 U.S.C. §§ 1981, 1983 (1988) claims, he
has abandoned those claims. See Tucker v. Waddell, 83 F.3d 688, 690 n.1
(4th Cir. 1996) (finding that failure to present arguments in briefs consti-
tutes waiver of appellate review) (citing 11126 Baltimore Blvd., Inc. v.
Prince George's County, 58 F.3d 988, 993 n.7 (4th Cir.), cert. denied,
___ U.S. ___, 64 U.S.L.W. 3393 (U.S. Dec. 4, 1995) (No. 95-550)).
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for the preceding two fiscal years. Peterson ranked fifteenth out of
sixteen DSM positions.2 Second, Lanier considered overall perfor-
mance evaluation ratings from the last four years. Three of the four
evaluations placed Peterson in the "needs improvement" category.
Finally, Lanier's human resources director submitted an affidavit stat-
ing that he had reviewed the reclassification decisions to ensure that
no discrimination had occurred.
Lanier offered Peterson a position as master customer service rep-
resentative ("MCSR"). Although the MCSR position was a two-level
demotion for Peterson with a reduction in pay from $55,275 to
$36,450, Peterson admitted in his deposition that the MCSR position
did not involve demeaning duties. Moreover, nationwide, seven other
DSMs--all white--were reassigned to MCSR positions, all of whom
accepted the position with a pay reduction comparable to Peterson's.
Because he could not meet his financial obligations with the pay
reduction, Peterson chose to resign before the effective date of the
reclassification. Peterson also stated that he resigned because he was
the victim of race and age discrimination. Specifically, he claimed
that he was embarrassed when he could not access the computer sys-
tem because the password had been changed. Finally, Peterson
asserted that he would not have resigned had he--rather than a white
male who was Peterson's subordinate--been given the opportunity to
transfer to another city.
After a hearing, the district court granted Lanier's summary judg-
ment motion, finding that Peterson failed to establish a prima facie
case of discrimination. This appeal followed.
II.
This court reviews de novo district court orders granting or denying
summary judgment. Evans v. Technologies Applications & Serv. Co.,
80 F.3d 954, 958 (4th Cir. 1996). District courts may enter summary
judgment only when there is no genuine issue of fact and the movant
is entitled to judgment as a matter of law. Miller v. Leathers, 913 F.2d
_________________________________________________________________
2 At the time of the reorganization, one of the DSM positions was
vacant.
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1085, 1087 (4th Cir. 1990) (en banc), cert. denied, 498 U.S. 1109(1991). The facts and inferences to be drawn from the pleadings must
be viewed in the light most favorable to the nonmoving party. Nguyen
v. CNA Corp., 44 F.3d 234, 237 (4th Cir. 1995). Summary judgment
is appropriate when the record taken as a whole could not lead a ratio-
nal trier of fact to find for the nonmoving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-49 (1986).
In order to state a claim for racially motivated discharge under
Title VII, the plaintiff must prove, by a preponderance of the evi-
dence, a prima facie case of discrimination. See Texas Dep't of Com-
munity Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Peterson challenges
the district court's finding that he failed to establish that he was con-
structively discharged. Constructive discharge occurs when the
employer creates intolerable working conditions in a deliberate
attempt to force the employee to quit. Carter v. Ball, 33 F.3d 450, 459
(4th Cir. 1994). The plaintiff must show both (1) the deliberateness
of the employer's actions; and (2) the intolerability of the working
conditions. Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126,
1132 (4th Cir. 1995) (quoting Martin v. Cavalier Hotel Corp., 48 F.3d
1343, 1354 (4th Cir. 1995)). As this court has stated: "Deliberateness
exists only if the actions complained of ``were intended by the
employer as an effort to force the employee to quit.' . . . Intolerability
is ``assessed by the objective standard of whether a ``reasonable per-
son' in the employee's position would have felt compelled to resign.'"
E.E.O.C. v. Clay Printing Co., 955 F.2d 936, 944 (4th Cir. 1992)
(citations omitted).
Here, Peterson contends that his working conditions became intol-
erable after Lanier reclassified him. Although Peterson received a pay
reduction and loss of responsibilities as a result of the reclassification,
see Jurgens v. E.E.O.C., 903 F.2d 386, 392 (5th Cir. 1990), seven
other DSMs nationwide accepted the reclassification to the MCSR
position. Moreover, Peterson admitted that the MCSR position did not
involve demeaning duties. Id. Peterson's subjective belief that he
could not live on his reduced salary did not make his working condi-
tions intolerable. See Clay Printing Co., 955 F.2d at 944. Nor did his
embarrassment over his inability to access to the computer shortly
before his resignation. We therefore find that the forecast of the evi-
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dence discloses that Peterson's working conditions were not intolera-
ble.
Peterson also failed to establish that Lanier deliberately intended to
force him to resign. When Lanier undertook its nationwide reorgani-
zation, it eliminated four DSM positions in Peterson's region. In
deciding which DSMs to reclassify, Lanier ranked the DSMs in Peter-
son's region based on objective criteria. Peterson ranked fifteenth out
of sixteen DSMs. Cf. Lovelace v. Sherwin Williams Co., 681 F.2d
230, 244 (4th Cir. 1982) (recognizing stack ranking as legitimate,
nondiscriminatory reason for demotion). Further, Lanier decided to
reclassify Peterson in light of his "needs improvements" overall per-
formance rating in three of the last four years. See Conkwright v. Wes-
tinghouse Elec. Corp., 933 F.2d 231, 234 (4th Cir. 1991). Further,
although Peterson claims that he--and not a white male who was his
subordinate--should have been offered a transfer to another city
instead of a position as a MCSR, he admitted in his deposition that
he would have relocated only for another DSM job.
Accordingly, because we find that Peterson failed to establish that
he was constructively discharged, we affirm the district court's grant
of summary judgment in Lanier's favor. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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