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November 3, 2005.


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.


  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. at 252.


  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 ...

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