United States District Court, W.D. North Carolina, Charlotte Division
November 3, 2005.
TIMOTHY N. ELLERBY, Plaintiff,
BRANCH BANKING AND TRUST CO., INC., Defendant.
The opinion of the court was delivered by: ROBERT CONRAD, District Judge
MEMORANDUM AND ORDER
THIS MATTER is before the Court on the motion of Defendant
Branch Banking and Trust Co., Inc., ("BB&T") for summary judgment
(Doc. No. 28), with supporting memorandum and appendix (Doc. No.
29, 30), Plaintiff Timothy N. Ellerby's response with appendix
(Doc. No. 32, 33), and BB&T's reply (Doc. No. 34). For the
reasons stated below, the Court GRANTS the defendant's motion
for summary judgment.
Ellerby brought this action asserting race discrimination
pursuant to Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq.; wrongful termination pursuant to
42 U.S.C. § 1981; and wrongful discharge in violation of public policy
pursuant to the Equal Employment Practices Act, N.C. GEN. STAT. §
143-422.1 et seq. (Doc. No. 1: Complaint).
Ellerby, an African-American male, was a branch manager at
United Carolina Bank's Ponderosa branch in Fayetteville, North
Carolina when BB&T acquired the bank in 1997. BB&T granted
Ellerby's request to transfer to a BB&T branch in Charlotte in
1998. By October 1999, Ellerby was employed at BB&T's Woodlawn
branch in Charlotte, where he remained until being terminated in
2003. Under BB&T policy, a lender was responsible to ensure that all
necessary documentation was completed, filed, and sent for
processing after closing a loan. An "exception" would occur if
the necessary loan documentation remained incomplete or
inaccurate thirty days after the closing. BB&T classified
exceptions into two types: lien exceptions and loan documentation
exceptions. A lien exception occurred when the lender had not
properly perfected the bank's security interest in property used
as collateral. A loan documentation exception occurred when the
lender did not correct defects in the loan paperwork, such as
incomplete contact information, missing signatures, missing
forms, incomplete forms, and miscalculations. Lien exceptions
were considered more serious than loan documentation exceptions
because lien exceptions directly put the bank's property
interests at risk.
Ellerby's work at BB&T produced a high exceptions rate. In
December 2002, his exceptions rate was 32.9%, where the bank's
goal was 10%. One of his lien exceptions resulted in a loss of
approximately $100,000 to the bank in 2002 because Ellerby failed
to file a deed of trust in relation to a loan. In January 2003,
John Cole, Regional Retail Banking Manager for the Charlotte
Metro Region, announced a region-wide goal to reduce exceptions
to below 10% by April 2003. In February 2003, Cole met with
Ellerby personally to stress that he had to reduce his exceptions
rate or action would be taken, which Ellerby understood could
include termination. In April 2003, Ellerby's annual performance
review documented that his exception rate of 32% was not
acceptable and his high number of lien exceptions represented a
significant risk to the bank.
When Ellerby failed to meet the regional goal by April 2003,
BB&T assigned two employees to help Ellerby lower his exceptions.
One of the employees reported that Ellerby did little, if
anything, to help her clear outstanding exceptions. Even when
Ellerby promised to take action, he failed to follow through. In July 2003, Ellerby's
direct supervisor, Chellie Phifer, placed him on a sixty-day
performance improvement plan with requirements that his exception
rate fall below 15% by August 21, 2003, and below 10% by
September 21, 2003, or he would face disciplinary action,
including termination. As part of the plan, Phifer met weekly
with Ellerby and his assistant to review his exceptions reports.
Phifer found that most of the work was being done by the
assistant and that Ellerby failed to follow through with promised
actions to clear the exceptions. On August 21, 2003, Ellerby's
exception rate was 17%. Phifer met with Ellerby and terminated
him effective August 22, 2003. Ellerby's position was
subsequently filled by a white female.
II. SUMMARY JUDGMENT STANDARD
Summary judgment shall be granted "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed.R.Civ.P.
56(c). The movant has the "initial responsibility of informing
the district court of the basis for its motion, and identifying
those portions of `the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any,' which it believes demonstrate the absence of
a genuine issue of material fact." Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)).
Once this initial burden is met, the burden shifts to the
nonmoving party. The nonmoving party "must set forth specific
facts showing that there is a genuine issue for trial." Id. The
nonmoving party may not rely upon mere allegations or denials of
allegations in his pleadings to defeat a motion for summary
judgment. Id. Evidence that is not supported is insufficient to
defeat a motion for summary judgment. Id. at 323-24. The
nonmoving party must present sufficient evidence from which "a reasonable jury
could return a verdict for the nonmoving party." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also
Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 818 (4th
Cir. 1995). When ruling on a summary judgment motion, a court
must view the evidence and any inferences from the evidence in
the light most favorable to the nonmoving party. Anderson,
477 U.S. at 255. However, "a scintilla of evidence in support of the
plaintiff's position will be insufficient; there must be evidence
on which the jury could reasonably find for the plaintiff." Id.
A. Title VII Claim
Ellerby alleges that BB&T treated him differently because of
his race. He claims he was performing adequately and that other
non-African-American employees with higher exception rates and
losses were not terminated. While Ellerby has not presented any
direct evidence of discriminatory intent, he asserts he has
satisfied the test established by McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). (Doc. No. 32: Memorandum at 5). That
decision requires a plaintiff to prove a prima facie case of
discrimination by a preponderance of the evidence. Id. at 802.
If he succeeds, the employer must present evidence of a
legitimate, non-discriminatory reason for terminating the
employee. Id. If the employer does so, the burden shifts back
to the plaintiff to show that the articulated reason for the
termination was merely a pretext for discrimination. Id. at
804; see also Mackey v. Shalala, 360 F.3d 463 (4th Cir.
1. Prima facie case
To state a prima facie case of discrimination, a plaintiff must
show: (1) that he is a member of a protected class; (2) that he
suffered from an adverse employment action; (3) that at the time
the employer took the adverse employment action he was performing
at a level that met his employer's legitimate expectations; and (4) that the position
was filled by a similarly qualified applicant outside the
protected class. King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir.
2003). Ellerby is a member of a protected racial class, did
suffer an adverse employment action, and was replaced by an
employee outside his class. However, he has failed to produce
evidence from which a reasonable jury could conclude he was
performing satisfactorily at the time of his termination. His
arguments comparing his performance to others who were not
terminated are more appropriately directed at the issue of
whether BB&T's explanation for his termination was a pretext for
discrimination. Id. at 149-150.
During the time of Ellerby's employment, BB&T had a bank-wide
goal of maintaining exception rates below 10%. Ellerby admitted
he was the lender with the highest lien exception rate. (Doc. No.
30, BB&T Appendix, Ellerby at 110). Ellerby did not meet the
region-wide goal of 10% by April 2003, even after being warned to
do so by the regional manager. In fact, his rate remained at 32%,
which BB&T recognized as a substantial risk. By July 2003,
Ellerby had still failed to meet the goal, despite BB&T's
assignment of two employees to assist him. By August12, 2003, his
rate was 20% and he did not meet the 15% requirement by August
21, 2003. Ellerby counters that the he was "making strides"
towards the requirement and that the bank failed to warn him of
his current percentage before his termination. (Doc. No. 32,
Memorandum at 3). However, Ellerby's own testimony cannot
establish a genuine issue as to whether he was meeting BB&T's
expectations. King, 328 F.3d at 149. Thus, no reasonable juror
could find that Ellerby was performing at a level that met his
employer's legitimate expectations at the time of his
termination. His exception rate was at time more than three times
higher than the bank-wide goal and never progressed below 15% as
required by his performance plan. Therefore, Ellerby has failed
to establish a prima facie case of discrimination and granting
summary judgment against him is proper. 2. Legitimate, non-discriminatory reason for the alleged
Even if Ellerby had made a prima facie showing that he was
discriminated against because of his race, he has not overcome
the second and third steps of the McDonnell Douglas framework.
BB&T provided a legitimate and non-discriminatory reason for
Ellerby's termination: his failure to meet exception rate goal.
Ellerby admits that "high exception rates always plagued" him
(Doc. No. 32, Memorandum at 11). BB&T provided substantial
evidence of the steps taken to help Ellerby diminish the risk of
loss he posed to the bank. Despite the provision of additional
staff and the extension of deadlines, Ellerby not only failed to
meet the clearly stated requirements, but his conduct also
evidenced an unwillingness to meet BB&T's expectations.
Therefore, the burden shifts back to Ellerby to demonstrate that
BB&T's proffered reason for his termination was a pretext for
No proof shows that BB&T's proffered reason for terminating
Ellerby was a pretext for discrimination. Ellerby admited that it
was not until after his inaction caused the bank to lose nearly
$100,000 that his regional manager became "prejudiced" against
him and subjected him to increased scrutiny. (Doc. No. 32,
Memorandum at 9, 10). Even so, Ellerby has attempted to establish
pretext by claiming that similarly-situated non-African Americans
were treated more favorably.
To establish such a claim, a plaintiff is required to prove
"that the `comparables' are similarly situated in all
respects," including having the same supervisor and committing
the same conduct without differentiating or mitigating
circumstances. Mitchell v. Toledo Hospital, 964 F.2d 577, 583
(6th Cir. 1992); accord Hutson v. McDonnell Douglas Corp.,
63 F.3d 771, 778 (8th Cir. 1995) (must be similarly situated in all relevant
respects); Smith v. Stratus Computer, Inc., 40 F.3d 11, 17 (1st
Cir. 1994) (same). In support his claim, Ellerby refers to
conclusory allegations in his Complaint, Exhibit One attached to
his Complaint, and conduct of three white women who were not
terminated. (Doc. No. 32, Memorandum at 3, 6, 10).
Reliance on the allegations in Ellerby's complaint is
insufficient to defeat a motion for summary judgment. Celotex,
477 U.S. at 323. Exhibit One is a simply chart of "Regional Loan
Documentation Exceptions 2003" listing names and percentages.
(Doc. No. 1, Complaint). No information on the chart reflects the
race, conduct, or any mitigating circumstances of the persons
listed. In the absence of proof from the employer or its job
performance reviews, expert opinion based on reasoned analysis is
required to measure a plaintiff's conduct against other
employees. King, 328 F.3d at 153. The record in this case is
devoid of any such proof, either from the company directly or
from an expert, establishing that Ellerby was similarly situated
in all respects to non-African-Americans who were not terminated.
Therefore, Ellerby has fallen well short of establishing "some
evidence on which a juror could reasonably base a finding that
discrimination motivated the challenged employment action."
Mackey, 360 F.3d at 469 (citing Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133 (2000)). Thus, summary judgment on
this claim is proper. Anderson, 477 U.S. at 252.
B. 42 U.S.C. § 1981
42 U.S.C. § 1981(c) provides, "The rights protected by this
section are protected against impairment by nongovernmental
discrimination and impairment under color of State law."
42 U.S.C. § 1981(c). The standard for establishing a claim under §
1981 is the same as under § 2000e. White v. BFI Waste Services,
Inc., 375 F.3d 288, 295 (4th Cir. 2004). Therefore, for the
reasons stated above, Ellerby has failed to make sufficient
showing to defeat BB&T's motion for summary judgment on his §
1981 claim. C. NCEEPA CLAIMS
Finally, Ellerby claims that BB&T's actions violate the North
Carolina Equal Employment Practices Act, N.C. GEN. STAT. §
143-422.1 et seq. ("NCEEPA"). The NCEEPA provides, "It is the
public policy of [North Carolina] to protect and safeguard the
right and opportunity of all persons to seek, obtain and hold
employment without discrimination or abridgement on account of
race, religion, color, national origin, age, sex or handicap by
employers which regularly employ fifteen or more employees." N.C.
GEN. STAT. § 143-422.2. The North Carolina Supreme Court has
adopted the Title VII evidentiary standards for claims under the
NCEEPA. Hughes v. Bedsole, 48 F.3d 1376, 1383 (4th Cir. 1995)
(citing North Carolina Dep't of Correction v. Gibson,
301 S.E.2d 78, 82-85 (N.C. 1983). As detailed above, Ellerby as
failed to establish a claim under Title VII; therefore summary
judgment on his state law claim is proper as well.
Ellerby has not produced sufficient evidence to withstand
BB&T's motion for summary judgment. After assessing the evidence
in a light most favorable to Ellerby, the Court finds he has
failed to establish a prima facie case of discrimination relating
to BB&T's decision to terminate him. Even if he had, no
reasonable juror could conclude that BB&T's proffered
non-discriminatory reason for the termination was a pretext for
IT IS, THEREFORE, ORDERED that BB&T's motion for summary
judgment (Doc. No. 28) is GRANTED, and this matter is dismissed
with prejudice in its entirety.
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