McCorkle v. Veda Incorporated ( 1998 )


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  • UNPUBLISHED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.
    _________________________________________________________________
    Affirmed by unpublished opinion. Senior Judge Phillips wrote the
    opinion, in which Judge Michael and Judge Motz joined.
    _________________________________________________________________
    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    Unpublished opinions are not binding precedent in this circuit.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).
    _________________________________________________________________
    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
    _________________________________________________________________
    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
    _________________________________________________________________
    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.
    7
    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.
    8