Patrick Michael MOONEY, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 08-1899.
United States Court of Appeals, Fourth Circuit.
Decided: Jan. 21, 2009.
675
Submitted: Jan. 15, 2009.
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Patrick Mooney appeals from the tax court‘s order dismissing his petition for redetermination of the Commissioner‘s finding of a deficiency in Mooney‘s 2004 income taxes and assessing penalties. We have reviewed the record and the tax court‘s opinion and find no abuse of discretion and no reversible error. Accordingly, we affirm on the reasoning of the tax court. Mooney v. Comm‘r., Tax Ct. No. 06-21647 (U.S. Tax Ct. May 5, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
Jacque JOHNSON, Jr., Plaintiff-Appellant, v. MECHANICS & FARMERS BANK, Defendant-Appellee.
No. 07-1725.
United States Court of Appeals, Fourth Circuit.
Decided: Jan. 23, 2009.
675
Argued: Oct. 30, 2008.
Before WILKINSON, Circuit Judge, SAMUEL G. WILSON, United States District Judge for the Western District of Virginia, sitting by designation, and HENRY E. HUDSON, United States District Judge for the Eastern District of Virginia, sitting by designation.
Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jacque Johnson (“Johnson“) appeals the district court‘s order granting his former employer, Mechanics & Farmers Bank (“the Bank“), summary judgment on his discrimination and retaliation claims under the Age Discrimination in Employment Act of 1967,
I.
From 1998 to 2005, Johnson worked in the Bank‘s Charlotte branches as City Ex
With the Charlotte operations’ poor performance as a backdrop, in the late summer and early fall of 2004, Wesley Christopher, Johnson‘s supervisor and the Bank‘s Senior Vice President and Banking Group Executive, offered Johnson two alternative jobs that he and others believed would better suit Johnson‘s skills. It is clear that Christopher intended to hire 38-year-old Kevin Price (“Price“) to eventually fill the Charlotte City Executive position he expected Johnson to relinquish.
Christopher first offered Johnson the position of the Bank‘s Commercial Lending Manager, the supervisor of all four City Executives. After discussing the offer and demanding changes in the position, Johnson refused it twice because he would not receive an “immediate salary adjustment” but instead would have to wait until March 2005 to gauge the adequacy of his performance in the new position. (J.A. 301.) According to Johnson, after his second refusal Christopher responded: “Jacque, let me be straight with you, we‘re concerned about your Charlotte operation and you have a Bull‘s Eye on your Chest.” (J.A. 301.) Christopher then demanded an update by the following morning as to what Johnson was doing “to get Charlotte loans back on budget and timing.” (J.A. 301.) Finally, on October 1, 2004 Christopher offered Johnson another job, a lateral position as Senior Underwriter, which Johnson also refused on that date.
Immediately after Johnson refused the Senior Underwriter position, Christopher placed Johnson on probation, citing the poor performance of the Bank‘s Charlotte branches in “key areas” including loans and deposits. (J.A. 297.)4 Johnson re
As anticipated, the Bank hired Price to serve as Charlotte‘s Vice President and Senior Business Development Officer, a new position. Price coordinated with Johnson to support the Bank‘s sales and production, but reported directly to the Bank‘s corporate office.
On November 1, 2004 Lee Johnson wrote Johnson that he was setting aside Johnson‘s probation, although the gist of the letter mirrored his October 22 letter, warning that Johnson was expected “to fully execute [his] responsibilities as the City Executive of Charlotte” and that “any further deviations ... [would] result in immediate termination.” (J.A. 385.) Again, Lee Johnson noted his belief that Johnson was “fully capable of continuing to be a productive employee.” (J.A. 385.)
Johnson filed an age discrimination charge with the Equal Employment and Opportunity Commission (“EEOC“) claiming that the Bank had not disciplined others who had not met their production goals and had hired a younger person who was “slated to replace [Johnson] as City Executive.” (J.A. 387.)6 He also claimed that during the discussions concerning the new positions, his superiors made two statements revealing their aged-based animus: first, Christopher allegedly told him the Bank was looking for “young blood,” and second, Lee Johnson called Johnson “the ‘God Father’ of the City Executives.” (J.A. 387.)
More than two months later, Christopher sought advice from a management consultant concerning a plan to terminate Johnson on January 7, 2005 “due to performance issues.” (J.A. 859.) On January 5, 2005, the consultant wrote Christopher concerning “the process of removing a key executive.” (J.A. 860-62.) Lee Johnson raised questions, however, and wanted to speak with the Bank‘s attorney since the Bank had been responding to Johnson‘s EEOC charge. Lee Johnson thought it was “important” that he “understand the overall evaluation of comparable individuals” and asked whether the Bank had “completed a review of other city executives, executives that may not have met their goals.” (J.A. 878.) He stated that, although he did not want to “delay unneces
On March 25, 2005, Steven Savia, an outside consultant who frequently worked on the Bank‘s personnel matters, issued a report on each City Executive‘s eligibility for incentive pay for 2004. According to the Bank‘s formula, if the Bank as a whole reached a given threshold net income for the year, individual employees could qualify for incentive pay based on their performance in certain criteria. For City Executives, the incentive pay criteria included growth in loans, deposits, other objective measures, and a partially-subjective, overall performance evaluation. Based on Savia‘s report, all City Executives except Johnson received incentive pay for 2004. On March 28, 2005, Johnson filed a second EEOC charge, alleging that the Bank had denied him incentive pay on account of his age or in retaliation for his previously-filed EEOC charge.
On April 26, 2005, an altercation occurred at one of the Bank‘s Charlotte branches between two employees, Leslie Cato and Lori Corpening. Christopher hired Savia to investigate the incident. Savia interviewed Cato, Corpening, and others involved in the incident and viewed a security camera recording before reaching the following conclusions:
Based on these [third-party] accounts, it appears clear that Ms. Cato was in fact the aggressor. There is also a reasonably consistent account of the language and intensity of Ms. Cato‘s actions. There is agreement that Ms. Cato had to be restrained and required a strong effort to calm her. Ms. Corpening had a colleague stand with her on the lobby side of the breezeway door with Ms. Cato being restrained on the other side continuing to curse and threaten Ms. Corpening.
(J.A. 1565.) Based on this report, on May 3, 2005 Christopher directed Johnson to fire Cato and transfer Corpening. Rather than follow this directive, however, on May 6, 2005 Johnson requested a copy of Savia‘s report for his own review, stating that he did not wish to expose the Bank to an “unfounded lawsuit” by firing Cato. (J.A. 1568.) In an email to Christopher on May 9, 2005, Johnson wrote,
I am deeply disappointed with your entire memo dated May 3, 2005, concerning the incident between Lori [Corpening] and Leslie [Cato] on April 26, 2005. Your memo is vague, and there is a lot to be desired in the area of clarity, truth, and understanding....
Steve Savia, your paid consultant, was very transparent in his interviews, and I‘m sure his analysis of the incident is tainted as well.... [D]ue to his [Savia‘s] bias perpetrated by your direction and his desire for commissions, you and he continue to spin results which creates a diametrically opposite analysis of the incident.
(J.A. 1569.) Despite the insubordinate tone of Johnson‘s email, Christopher complied with Johnson‘s request and sent him Savia‘s report. Johnson reviewed the report, and wrote Christopher that he had reached the opposite conclusion, that Corpening was the aggressor in the incident, and further that
Steve [Savia] should be criticized for his unreliable and unprofessional report. His extremely negligent investigative process was lacking in proper due diligence.... My recommendation is that Mr. Savia, your paid consultant, obtain proper training in his fact gathering techniques and the logical analysis of data required to complete a competent and unbiased investigation prior to his next assignment, if any.
Johnson filed a third EEOC charge, alleging that the Bank had terminated him on account of his age and in retaliation for his previously-filed EEOC charges, and he ultimately filed suit in district court. In an oral opinion delivered at the conclusion of the summary judgment hearing, the district court granted the Bank summary judgment as to all claims.
II.
Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”
III.
Johnson maintains his evidence, viewed either through a mixed-motive framework or through a modified paradigm of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), raises a triable issue of fact that the Bank placed him on probation on account of his age. The Bank maintains that Johnson‘s probation, which it set aside within 30 days, was not an adverse employment action, and that Johnson has otherwise failed to create a triable issue of fact. We conclude under a mixed-motive analysis that Johnson has failed to marshal sufficient evidence for a reasonable jury to conclude that his age was a determinative influence on the Bank‘s decision to place him on probation. We also agree with the district court, that Johnson failed to establish a prima facie case under McDonnell Douglas because he failed to demonstrate that he was meeting the Bank‘s legitimate expectations (based upon the Bank‘s relatively poor performance in the Charlotte area as measured by a shortfall in budget expectations for both loans and deposits). Essentially for the same reason, we also conclude that the Bank has articulated a legitimate, nondiscriminatory reason for placing Johnson on probation which Johnson has not shown to be a pretext for discrimination. Accordingly, the district court properly entered summary judgment for the Bank on that claim.
A.
“The ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Under the “mixed motive” proof scheme, an employee may demonstrate that permissible and forbidden reasons motivated his employer to take adverse employment action. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284 (4th Cir. 2004) (en banc). Mixed-motive cases require the employee to prove that the protected trait “actually played a role in the employer‘s decisionmaking process and had a determinative influence on the outcome.” Id. at 286 (quoting Reeves, 530 U.S. at 141); cf. Price Waterhouse v. Hopkins, 490 U.S. 228, 276-77, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (O‘Connor, J., concurring). Under a mixed-motive analysis, the question distills
We have previously assumed without deciding that Price Waterhouse continues to govern the ADEA mixed-motive framework. Under that framework, an employee must marshal direct evidence of discrimination to satisfy his burden of proof. E.E.O.C. v. Warfield-Rohr Casket Co., Inc., 364 F.3d 160, 163 n. 1 (4th Cir.2004). This is because the Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071 (codified as amended in scattered sections of
Viewed in its totality, without regard to its direct or circumstantial nature, we find the evidence insufficient for a reasonable jury to conclude that Johnson‘s age was a determinative influence on the Bank‘s decision to place him on probation. From May through September 2004, the Bank‘s uncontradicted evidence reveals Charlotte‘s chronic failure to meet its loan production budget. During this time, the Charlotte branches were on average about 10% behind their loan budget, each month lagging behind to the tune of several million dollars. (J.A. 523-27.) Operations in other cities, in contrast, either met their loan production budget or only slightly underperformed. Charlotte‘s consistent shortfall was primarily responsible for the Bank‘s inability to meet its overall loan budget: in September 2004, for example, when the Bank was about $5.6 million behind its loan budget, about $4.3 million of that deficit belonged to Charlotte. (J.A. 527.) The same pattern appears with deposits: Charlotte never met its deposit production goals during this time period; in September 2004, for example, while the Bank exceeded its overall deposit goal by $4.7 million, Charlotte was more than $4.2 million behind its deposit goal. (J.A. 523-27.)
Given the consistently poor financial performance of the Charlotte operations, two ambiguous, stray comments in the course of offering Johnson lateral positions his supervisors have described as a “better fit” for his abilities are not sufficient to create a triable issue of fact that the Bank placed Johnson on probation on account of his age. Nor do we find the timing of the decision probative of age discrimination. Johnson‘s superiors believed Johnson was impeding their efforts to turn around the
B.
Johnson maintains that his placement on probation raises a triable issue of age discrimination under the second proof scheme available to him—the McDonnell Douglas scheme. The district court found that Johnson failed to establish a prima facie case under McDonnell Douglas for several reasons, including Johnson‘s inability to show that his performance met his employer‘s legitimate expectations concerning the performance of the Bank‘s Charlotte operations. It also found that even if Johnson had established a prima facie case, the Bank offered un-rebutted evidence that it placed him on probation for a legitimate, non-discriminatory reason—underperformance in Charlotte‘s operations as measured by loans and deposits. We agree.
To establish a prima facie case under the McDonnell Douglas framework, the employee must prove that (1) he is a member of a protected class; (2) who suffers an adverse employment action; (3) at the time of the action, his performance was satisfactory to meet his employer‘s legitimate expectations, and (4) he was treated less favorably than persons who are not members of the protected class. See E.E.O.C. v. Clay Printing Co., 955 F.2d 936, 941 (4th Cir.1992). If he does so, the burden shifts to the employer to proffer a legitimate, non-discriminatory reason for the adverse employment action. Hill, 354 F.3d at 285. When the employer meets its burden, the McDonnell Douglas framework “disappear[s] and the sole remaining issue [is] discrimination vel non.” Id. (quoting Reeves, 530 U.S. at 142-43). The employee then has the ultimate burden to prove that the employer‘s proffered reasons were but a pretext for discrimination. St. Mary‘s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); see also Hill, 354 F.3d at 285.
The Bank argues that Johnson has not established a prima facie case because a one-month probationary period that is set aside is not an adverse employment action (element two under McDonnell Douglas) and because he failed to prove he was meeting his employer‘s legitimate expectations (element three). Alternatively, the Bank argues that it placed Johnson on probation for a legitimate and non-discriminatory reason, namely its Charlotte operations were significantly underperforming in both loans and deposits. In attacking this reason as pretextual, Johnson marshals essentially the same evidence he offered in his mixed-motive analysis.
We agree with the district court that Johnson has failed to establish a prima
IV.
Johnson maintains that the Bank denied him incentive pay in March of 2005, for his 2004 performance, based on age and in retaliation for filing his initial EEOC charge. The Bank maintains it denied him incentive pay because he did not qualify for it under the Bank‘s incentive pay formula, as applied by its consultant, which in large measure factored in loans and deposits. For essentially the same reasons we concluded earlier that Johnson failed to raise a triable issue of fact either under a mixed-motive or McDonnell Douglas proof scheme concerning his probation, we conclude that the district court properly entered summary judgment on Johnson‘s age discrimination claim for the Bank‘s denial of incentive pay. For similar reasons, we also conclude that the district court properly entered summary judgment as to his retaliation claim.
A.
We see no necessity in repeating the Bank‘s “underperformance in loans and deposits” refrain here, which we again conclude sufficiently supports the Bank‘s decision. We note, however, that from the Bank‘s perspective, in addition to missing his budget for loans and deposits more often by the widest margin of any of the four City Executives, by the time of Johnson‘s performance review, the Bank‘s CEO had warned Johnson (before he complained of age discrimination) about the disrespectful and insubordinate tone of his correspondence within the company. Under the circumstances, Johnson is unable to show either under a mixed-motive proof scheme that age was a determinative influence on the Bank‘s decision to deny him incentive pay or under the McDonnell Douglas proof scheme that his performance was meeting his employer‘s legitimate expectations.9
Johnson claims the Bank denied him incentive pay in retaliation for his EEOC charge. He argues that the January 2005 email exchange discussing Christopher‘s plan to terminate him reveals retaliatory animus. The Bank counters that nothing in those emails remotely suggests retaliation. It argues that the evidence is insufficient to establish a prima facie case of retaliation and, alternatively, that even if Johnson established a prima facie case of retaliation, he did not receive incentive pay because of his performance. We assume without deciding that Johnson‘s evidence establishes a prima facie case of retaliation, but we find that Johnson has not created a triable issue of fact that the Bank‘s proffered reasons for denying him incentive pay were pretextual.
An employer violates the ADEA by retaliating against an employee for engaging in a protected activity.
Applying these standards, even assuming Johnson has established a prima facie case, we find that Johnson‘s evidence does not demonstrate that the Bank‘s legitimate, non-retaliatory reason for denying him incentive pay—underperformance—was pretextual. We agree with the Bank that the January 2005 email exchanges support no inference that the Bank‘s proffered reason for denying Johnson incentive pay was pretextual. If anything, Lee Johnson‘s correspondence shows restraint. He thought it important not to “rush to judgment” and to “understand the overall evaluation of comparable individuals.” (J.A. 878.) Accordingly, the district court properly granted summary judgment as to Johnson‘s retaliation claim arising from his denial of incentive pay.
V.
Johnson maintains that the Bank terminated him on account of his age and retaliated against him for filing EEOC charges and for opposing Christopher‘s directive to terminate Cato following her conflict with her co-employee. The Bank counters that it terminated Johnson because Johnson added insubordination to the Bank‘s original concerns about his performance. The court concludes that Johnson has offered nothing new to support his age discrimination claim, whether considered under a mixed-motive or McDonnell Douglas framework, that he has not shown that the Bank‘s proffered reasons are a pretext for retaliation, or that his refusal to fire Cato was protected opposition activity. Accordingly, the district court properly granted the Bank‘s motion for summary judgment as to Johnson‘s termination claims.
A.
Other than the fact of termination and the assignment of his duties to two other existing employees, Johnson offers nothing new to support his age discrimination claim. However, these facts lend no support to his claim that his age played a role in his termination. Indeed, Johnson had clearly become insubordinate and insolent in dealing with his superiors. Rather than
B.
Johnson offered nothing in the district court that positioned his refusal to fire Cato as legitimate, protected “opposition activity.” Accordingly, we find no fault in the district court‘s decision granting the Bank summary judgment on that claim.
The ADEA, like Title VII, prohibits an employer from retaliating against an employee who has opposed unlawful discrimination. Compare
Johnson argues that he reasonably believed he was free to disregard his superior‘s directives to fire Cato because it was retaliatory. We assume that Johnson in fact believed what he says he believed. However, we find that belief to be objectively unreasonable. We also find under a balancing test that Johnson did not engage reasonably in activities opposing discrimination. Johnson‘s superior hired a consultant to investigate the incident between Cato and Corpening. After an investigation, that consultant prepared a reasoned report concluding that Cato was the aggressor, that she continued to curse and threaten Corpening, and another Bank employee had to restrain her. Right or wrong, that was his conclusion, and he passed it along to Johnson‘s superiors, and
We also find that Johnson‘s opposition activities are not protected because the manner of his communications with Christopher was unreasonable. Again, it is fundamental that to receive protection Johnson must be “engaging reasonably in activities opposing ... discrimination.” Laughlin, 149 F.3d at 259. Recognizing this fact, Johnson attempts to characterize his May 6, 2005 email to Christopher as an effort “to seek guidance from Christopher.” (Appellant‘s Reply Br. 24.) It is clearly no such thing when considered together with his follow-up May 9 email which could not reasonably be considered earnestly and respectfully seeking new information. The tone of the May 9 email is unmistakably insubordinate and insolent, the very things Lee Johnson had warned him about before. Therefore, the district court properly entered summary judgment for the Bank as to Johnson‘s retaliatory discharge claim.
VI.
For the foregoing reasons, we affirm the district court‘s decision to grant summary judgment for the Bank.
AFFIRMED.
Calvin Scott WEDINGTON, Plaintiff-Appellant, v. UNITED STATES of America; Federal Bureau of Prisons; Mary Haugen, Unit Manager; Lieutenant Hansen, Corrections Operations; D. Terrell, Warden, Federal Medical Center, Defendants-Appellees.
No. 08-8464.
United States Court of Appeals, Fourth Circuit.
Decided: Jan. 26, 2009.
686
Submitted: Jan. 15, 2009.
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Calvin Scott Wedington seeks to appeal the district court‘s order dismissing his civil action. We dismiss the appeal for lack of jurisdiction because the notice of appeal was not timely filed.
When the United States or its officer or agency is a party, the notice of appeal must be filed no more than sixty days after the entry of the district court‘s final judg-