McCrimmon v. Skillsbank Corp ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PENNY MCCRIMMON,
Plaintiff-Appellant,
v.
SKILLS BANK CORPORATION, a
Maryland corporation; GARRY
MCDANIELS; MARK STEPHEN
No. 98-2214
HELGENSON; CATHY HURLEY; JESSE
MASHBAUM,
Defendants-Appellees,
and
INGRID ELLERBEE,
Defendant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CA-97-246-JFM)
Argued: April 9, 1999
Decided: May 13, 1999
Before WILKINSON, Chief Judge, and WIDENER and
KING, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: John H. Morris, Jr., Baltimore, Maryland, for Appellant.
Jeanne Marie Phelan, WHITEFORD, TAYLOR & PRESTON, Balti-
more, Maryland, for Appellees. ON BRIEF: Melissa L. Menkel,
WHITEFORD, TAYLOR & PRESTON, Baltimore, Maryland, for
Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Penny McCrimmon ("McCrimmon") sued her former employer,
Skills Bank Corporation ("Skills Bank"), as well as its employees Ste-
phen Helgenson, Cathy Hurley, Garry McDaniels, and Jesse Mash-
baum, claiming that each had discriminated against her on the basis
of race in violation of 42 U.S.C. § 1981. McCrimmon further alleged
that Skills Bank had deprived her of overtime pay in violation of the
Fair Labor Standards Act, 29 U.S.C. §§ 201-219 ("FLSA"). The dis-
trict court concluded that McCrimmon had not raised a genuine issue
of material fact as to any of her claims, thus granted summary judg-
ment in favor of the defendants as to all claims. McCrimmon now
appeals the district court's ruling. Finding no reversible error, we
affirm.
I.
McCrimmon, an African-American woman, began working for
Skills Bank in May 1993. Before working for Skills Bank, McCrim-
mon had sold schoolbooks for a large publisher. At Skills Bank she
again worked as a salesperson, selling educational software.
McCrimmon's disagreement with Skills Bank arises out of a num-
ber of instances in which she claims she was not treated as well as
her white co-workers. The first of these instances involves the assign-
ment of sales territories. In 1994 and again in January 1995, Lyle
Cockrum, Skills Bank's Director of Inside Sales, assigned sales terri-
2
tories to each sales representative. McCrimmon was assigned Penn-
sylvania, Maryland, Delaware,1 and eventually, Virginia.
McCrimmon claims that these states were not desirable sales territo-
ries because they did not have established dealer networks. All of the
territories that McCrimmon characterizes as desirable were assigned
to white sales representatives.
In addition to the assignment of sales territories, McCrimmon
alleges that Skills Bank and its employees discriminated against her
by refusing her applications for various promotions. McCrimmon
relies primarily on Skills Bank's June 1995 rejection of her applica-
tion for the newly created position of Regional Sales Director.
McCrimmon and others sent their applications for this position to
Ingrid Ellerbee, an African-American woman who was manager of
Skills Bank's Inside Sales Group. Ellerbee ultimately awarded the job
to Chris Mignano, a white male. Likewise, white applicants were
selected for positions in corporate communications and marketing,
jobs in which McCrimmon also was interested. McCrimmon also
points to a number of ways in which she feels she was treated differ-
ently from white employees.2
Finally, McCrimmon claims that, from sometime in 1993 until
October 1994, Skills Bank required her to under-report the hours she
had worked. According to McCrimmon, another Skills Bank
employee advised her to report only forty hours per week on the time
sheets she was required to submit, regardless of how many hours she
had actually worked.3 McCrimmon alleges that she routinely worked
more than forty hours per week during this period.
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1 Delaware was later re-assigned to a white sales representative.
2 As "additional evidence" of differential treatment, McCrimmon notes
that (1) she was terminated for failing to return to work after being dis-
abled (when, she believed, similarly-situated white employees were
treated differently); (2) she was not given certain sales awards she had
earned (when, she believed, white employees received some of these
awards); and (3) the company failed to send her mother cards or gift bas-
kets when she was in the hospital (when it had apparently sent gifts to
ailing relatives of white employees). As the district court points out,
McCrimmon submitted only her own, unsupported affidavit with respect
to these issues.
3 The parties diverge in their characterization of the employee who
allegedly made this statement, Donalee Burns. Skills Bank describes
3
In May 1995, and again in June 1995, McCrimmon injured her
back on the job. After she failed to return to work at the end of the
twelve-week leave period required by the Family and Medical Leave
Act, Skills Bank terminated McCrimmon. In January 1997, McCrim-
mon sued Skills Bank and the individual defendants in the district
court for the District of Maryland. In her complaint, McCrimmon
alleged that Skills Bank, Helgenson, Hurley, Mashbaum, and McDan-
iels had discriminated against her on the basis of her race in the ways
described above, all in violation of 42 U.S.C. § 1981. She further
alleged that Skills Bank had violated the FLSA by failing to pay her
approximately $20,000 in overtime.4
The defendants responded by moving for summary judgment, and
the district court granted their motion as to all of McCrimmon's
claims. With respect to the § 1981 claims, the district court concluded
that McCrimmon had submitted no evidence suggesting that (1) she
was better qualified than the white employees who received the vari-
ous promotions for which she applied; (2) the sales territories she was
assigned were objectively less desirable than those awarded to her
white colleagues; and (3) any other differential treatment to which she
was subjected was motivated by racial animus. The district court fur-
ther determined that McCrimmon's FLSA claim was barred by the
Act's two-year statute of limitations. See 29 U.S.C. § 255(a).5
McCrimmon now appeals the district court's summary judgment
order dismissing her § 1981 and FLSA claims.
_________________________________________________________________
Burns as an administrative employee whose job includes the collection
of time sheets, while McCrimmon, in her affidavit, simply refers to
Burns as a member of Skills Bank's "management," without further
explanation.
4 McCrimmon's complaint also raised claims under the Rehabilitation
Act of 1973, 29 U.S.C. § 794, and the Family and Medical Leave Act,
29 U.S.C. §§ 2611-2654. The district court dismissed these claims, and
McCrimmon does not appeal their dismissal.
5 The district court further found that, because McCrimmon had failed
to present evidence that Skills Bank had willfully violated the FLSA, she
could not take advantage of the statute's alternative, three-year limita-
tions period, which applies to such violations. See 29 U.S.C. § 255(a).
4
II.
We have carefully considered the briefs and oral arguments of the
parties and those portions of the record pertinent to their various argu-
ments. Having done so, we find no reversible error in the district
court's disposition of McCrimmon's complaint. We hereby adopt the
opinion of the district court and we affirm on its reasoning. See
McCrimmon v. Skills Bank Corp., No. JFM-97-246 (D. Md. July 9,
1998).
AFFIRMED
5