The opinion of the court was delivered by: ROBERT CONRAD, District Judge
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.
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 ...