202 F.3d 234 (4th Cir. 2000), 98-2200, Smith v. First Nat'l Bank

Docket Nº:98-2200 (CA-97-127-3-P).
Citation:202 F.3d 234
Party Name:ELIZABETH F. SMITH, Plaintiff-Appellant, v. FIRST UNION NATIONAL BANK, Defendant-Appellee.
Case Date:January 19, 2000
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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202 F.3d 234 (4th Cir. 2000)

ELIZABETH F. SMITH, Plaintiff-Appellant,



No. 98-2200 (CA-97-127-3-P).

United States Court of Appeals, Fourth Circuit

January 19, 2000

Argued: September 22, 1999.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte.

Robert D. Potter, Senior District Judge.

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COUNSEL ARGUED: Julie Hanna Fosbinder, SHARPE & FOSBINDER, P.A., Charlotte, North Carolina, for Appellant. Charles Evans Johnson, KILPATRICK STOCKTON, L.L.P., Charlotte, North Carolina, for Appellee. ON BRIEF: Jenny L. Sharpe, SHARPE & FOSBINDER, P.A., Charlotte, North Carolina; Charles McB. Sasser, COX, GAGE & SASSER, Charlotte, North Carolina, for Appellant. Cynthia A. Glasgow, KILPATRICK STOCKTON, L.L.P., Charlotte, North Carolina, for Appellee.

Before MURNAGHAN, MICHAEL, and KING, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Judge Murnaghan wrote the opinion, in which Judge Michael and Judge King joined.


MURNAGHAN, Circuit Judge:

Elizabeth Smith appeals from the district court's order granting summary judgment in favor of First Union National Bank on Smith's claims for sexual harassment under Title VII, sexual harassment under N.C. GEN. STAT.§ 143-422.2, retaliation under Title VII, negligent supervision or retention, and a Fair Labor Standards Act (FLSA) claim based on a failure to pay overtime wages. We affirm in part, reverse in part, and remand.


Because we are reviewing a grant of summary judgment in favor of First Union, we state the following facts in the light most favorable to Smith. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986). Smith worked for First Union from January 1990 until November 1995. Smith initially worked as an adjustor, and her duties consisted of calling and arranging for payment from customers who had delinquent accounts. As an adjustor, she was paid hourly, and as a nonexempt employee under the FLSA she received overtime pay.

In January 1993, First Union promoted Smith to the position of team leader in the Consumer Credit Collections Department. The position of team leader at First Union was a supervisory position. Smith assisted her manager, the collection supervisor, in managing and supervising the work of sixteen adjustors. Smith was responsible for implementing and communicating collection procedures, interviewing and assisting in the hiring of adjustors, monitoring the performance of adjustors on her team, and preparing regular reports showing the performance of her team.

When Smith became a team leader, she initially reported to collection supervisor Barbara Judge. In March or April of 1993, however, Smith began reporting to collection supervisor Ronald Scoggins. Scoggins subjected Smith to a barrage of threats and gender-based insults while she was under his supervision. Scoggins directed some of his remarks at Smith individually, while other remarks reflected Scoggins' hostile view of women in general.

Scoggins' remarks began when he informed Smith that he would have preferred a male in the team leader position because males are "natural leaders." Scoggins made this comment more than thirty times in the first few weeks that he supervised Smith. Scoggins also told Smith that women should not be in management because they are "too emotional to handle a managerial role." When a female employee was upset, Scoggins would frequently remark to Smith that the employee was menstruating or that she needed a "good banging." Scoggins did

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not make these types of remarks about male employees.

Scoggins also demeaned the workplace successes of women at First Union. Scoggins told Smith that "the only way for a woman to get ahead at First Union was to spread her legs." Scoggins told Smith that he wished he had been a woman so that he could"whore his way through life." Scoggins claimed that women should be barefoot and pregnant, and that they went through life looking for a man to marry.

Scoggins' behavior toward Smith was often threatening. For instance, Scoggins began standing over Smith's cubicle and barking orders at her. Scoggins often concluded his orders to Smith with the remark, "or else you'll see what will happen to you." Scoggins also threatened Smith when he called her at home at 10:00 p.m., accusing her of conspiring with his supervisor, George Andrews, to "get him."

In mid-1995, First Union selected Scoggins as a team leader after an internal administrative reorganization.1 Smith elected not to remain on Scoggins' team and Scoggins' harassment of Smith consequently escalated. In October 1995, Scoggins appeared in Smith's cubicle as she was sitting at her desk. Scoggins grabbed the handles of Smith's chair and spun her around to face him. Scoggins then looked her over and stated, in an apparent reference to the O.J. Simpson trial, that he could "see why a man would slit a woman's throat."

Smith took Scoggins' remark as a serious threat because of the way that he made the remark and his tone of voice. Smith's fear was also based on Scoggins' frequent discussions of his alleged military background, in which he bragged about having to "take people out." Smith thus believed that Scoggins was capable of acting violently against her, and, consequently, feared for her safety.

On November 3, 1995, Smith made her first formal complaint about Scoggins' harassment to First Union's human resources representative, Marc Hutto.2 Smith did not complain previously about Scoggins' behavior for three reasons: first, Scoggins' boss told Smith that she should never complain to human resources if she "ever wanted to get anywhere"; second, Scoggins threatened that Smith would lose her job if she complained about his conduct; and third, Smith did not understand that Scoggins' behavior constituted sexual harassment. First Union's policy prohibited only"sexual harassment, sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature." Smith understood this to mean that a sexual advance was needed from the perpetrator for the conduct to constitute a violation of First Union's policy. Consequently, Smith did not raise a claim of gender-based harassment before November 3, 1995, because she did not understand that she could do so.

In Smith's first compliant to Hutto, she advised Hutto of Scoggins' threat about slitting a woman's throat, and that this remark and Scoggins' other violent conduct made her feel physically threatened. Smith also advised Hutto about Scoggins' statements concerning women in management, and his statements that he would not have selected Smith as a team leader because she was a woman. Smith asked Hutto to keep her complaint anonymous because she feared retaliation by Scoggins and First Union management. Smith also requested that First Union remove her from Scoggins' work area immediately.

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Over the next few weeks, Smith told Hutto about some of the other harassing remarks made by Scoggins.3 At Hutto's request, Smith contacted a number of her coworkers and asked that they contact Hutto about their work experiences with Scoggins. Barbara Judge contacted Hutto and told him that another employee had left First Union because of Scoggins' "alleged verbal, sexual harassment," and that Scoggins had made "comments to [Smith] which [were] derogatory towards women." Other employees also told Hutto that Scoggins was threatening and demeaning, and often talked "ugly" to Smith.

Hutto informed Smith on or about November 9, 1995, that he had interviewed enough people. At that time, Smith told Hutto that she believed that her complaint would no longer be confidential, and asked that First Union remove her from Scoggins' floor entirely because she feared for her personal safety.

First Union's investigation of Smith's complaints focused on Smith's concerns about Scoggins' management style, and ignored Smith's allegations of sexual harassment. Neither Hutto nor anyone else at First Union asked Scoggins whether he made any of the sexually harassing remarks. In addition, First Union did not follow up on the allegation that another employee had left First Union due to Scoggins' sexual harassment.

First Union never reprimanded Scoggins for his harassment of Smith nor did First Union even discuss the topic of sexual harassment with Scoggins. Instead, First Union put Scoggins on probation for ninety days because of his inappropriate management style; however, First Union allowed Scoggins to remain in his position in the Consumer Credit Department.

On November 14, 1995, First Union temporarily suspended Smith and Scoggins with pay. First Union sent both parties to its Employee Assistance Program (EAP). At her first EAP meeting, Smith told Michael Price, the EAP counselor, about the fear and intimidation she felt because of Scoggins' conduct toward her. Price advised Smith not to return to work near Scoggins.

First Union agreed to transfer Smith out of Scoggins' work-team and into the Val Arthur team. The Arthur team, however, was located on the same floor as Scoggins' team. The distance between Scoggins' team and Arthur's team was only 100 feet. The proximity between the teams and First Union's business practices made it likely that Smith would run into Scoggins on a daily basis. Price told Hutto that Smith should not have been placed in an area where she would have daily contact with Scoggins.

Smith met with Hutto in person for the first time on November 17, 1995. Smith and Hutto discussed the...

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