370 F.3d 423 (4th Cir. 2004), 03-1628, Williams v. Giant Food Inc.

Docket Nº:03-1628.
Citation:370 F.3d 423
Party Name:Linda A. WILLIAMS, Plaintiff-Appellant, v. GIANT FOOD INCORPORATED; Royal Ahold; Jim Frazetti, in his official capacity as Vice President of Store Operations; Colleen McDaniel, in her official capacity as District Manager, Defendants-Appellees.
Case Date:June 04, 2004
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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370 F.3d 423 (4th Cir. 2004)

Linda A. WILLIAMS, Plaintiff-Appellant,


GIANT FOOD INCORPORATED; Royal Ahold; Jim Frazetti, in his official capacity as Vice President of Store Operations; Colleen McDaniel, in her official capacity as District Manager, Defendants-Appellees.

No. 03-1628.

United States Court of Appeals, Fourth Circuit

June 4, 2004

Argued: Feb. 26, 2004.

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[Copyrighted Material Omitted]

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Jo Ann P. Myles, Largo, Maryland, for Appellant.


Connie Nora Bertram, VENABLE, L.L.P., Washington, D.C., for Appellees.

Before WIDENER, SHEDD, and DUNCAN, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Judge SHEDD wrote the majority opinion, in which Judge DUNCAN joined. Judge WIDENER wrote a concurring opinion.


SHEDD, Circuit Judge:

Linda Williams sued her former employer, Giant Food Inc., for race, sex, and age discrimination; retaliation; and constructive discharge. The district court dismissed her initial complaint but granted her leave to file an amended complaint alleging failure-to-promote claims under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. After permitting Williams limited discovery, the district court granted summary judgment to Giant Food on Williams's failure-to-promote claims. Because we conclude that Williams created a genuine issue of material fact relevant to her failure-to-promote claims under § 1981, we reverse the district court's summary judgment and remand this case for further proceedings. In all other respects, we affirm the rulings of the district court.


Giant Food operates nearly 200 grocery stores in several states and the District of Columbia. Williams is an African-American woman who worked for Giant Food from March 1980 to April 2000. From April 1995 to November 1998, Williams was an assistant manager at Store 103; from November 1998 to February 2000, she was assistant manager at Store 75. Williams resigned from Giant Food in April 2000. As an assistant manager, Williams reported to the general manager of her store. General managers, in turn, reported to district managers.

For years Giant Food filled management vacancies based on recommendations from supervisors and human resources personnel. In March 1997, Giant Food replaced this relatively informal system with a self-nomination program for promotions to general manager and district manager positions. Under this program, assistant managers who were interested in being promoted to general manager were required to apply for that position by completing and submitting a self-nomination form. Giant Food notified its employees of this new procedure through several

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memoranda and "Giant FYI," the company's employee newsletter.

Giant Food first notified employees about the self-nomination program in March 1997, in conjunction with an announcement that the company would be conducting a selection process for general manager positions. Giant Food required every assistant manager to complete and return a form confirming receipt of the memorandum describing the self-nomination procedure and indicating interest in the general manager positions. When Williams did not return the form by the specified date, recruitment manager David White contacted her by phone. White described the self-nomination procedure and asked Williams whether she planned to apply for the promotion to general manager. For various reasons, Williams was not interested.

Giant Food sent another letter to assistant managers in October 1997, this time in conjunction with an announcement concerning a selection process for general manager positions in New Jersey and Delaware. Williams testified that she received this letter but was not interested in the promotion.

Giant Food again advertised its self-nomination program in the February 1998 issue of "Giant FYI." Although Williams admitted that she received "Giant FYI" and usually read articles of interest to her, she testified that she did not read the February 1998 issue. Two months later, Giant Food distributed another memorandum describing the general manager selection process. Williams admitted receiving this memorandum, but she made no response to it.

In April 1998, Giant Food sent another memorandum to assistant managers and others describing the self-nomination procedure. Williams received this memorandum. Although the memorandum instructed employees to contact their district managers with any questions, Williams made no response to the memorandum.

Later that month, on April 20, 1998, Giant Food distributed to its retail stores a posting for available general manager positions. More than 100 employees responded to this posting, and each was instructed to complete a self-nomination form. Giant Food conducted panel interviews for applicants who passed an initial screening and ultimately promoted twenty-eight employees to general manager positions. Giant Food did not consider any employee for this promotion who did not respond to the April 20 job posting.

Williams did not respond, and she was not considered for this promotion. Williams contends, however, that the April 20 posting was not displayed at her store. She testified that it was her practice each day to (1) review the Consolidated Bulletin (a mailing sent by management to the store containing job postings and other notices), (2) review the postings that were displayed on the break room bulletin board, and (3) remove from the bulletin board postings that had expired. On certain days, Williams herself was responsible for removing job postings from the Consolidated Bulletin and putting them on the bulletin board. Yet Williams never saw the April 20 advertisement for promotions to general manager. Williams testified that she would not have applied for this promotion even had she seen the posting because her performance ratings--which she contends were "unfair and untrue and incorrect"--made her ineligible for the position of general manager.

Giant Food distributed a posting for promotions to district manager on November 12, 1998. Giant Food conducted an initial screening of the thirty or so employees who responded to this posting, conducted

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interviews, and ultimately promoted eight employees to district manager positions. Williams did not respond to this job posting, and she was not considered for the promotion. Williams testified that she never saw this posting. Although the position of district manager is higher than the position of general manager--for which Williams thought she was unqualified--Williams testified that she would have nominated herself for this promotion had she seen a posting for it. At the very least, she would have inquired about the requirements for the district manager position.

Although Williams testified that the April 1998 and November 1998 postings were not displayed in her stores, Giant Food had a formal job posting policy that required general managers to post all job announcements in the break rooms of their stores. If a posting were to be removed from the bulletin board before the period for response had expired, it was the responsibility of the general manager to request a duplicate posting. Ray Turek, general manager of Store 75, and Michael King, general manager of Store 103, each testified that it was his practice to post, or cause to be posted, every job posting he received from the company and that he never intentionally failed to display a job posting in order to conceal the opportunity from Williams.

Giant Food advertised another promotion selection for general manager on March 15, 2000, but it did not make its selections for this promotion until after Williams resigned from employment in mid-April. On December 7, 2000--eight months after she left Giant Food--Williams filed a charge of discrimination with the EEOC.

After receiving a right-to-sue letter from the EEOC, Williams filed this lawsuit in the district court, alleging race, sex, and age discrimination; retaliation; and constructive discharge. This complaint alleged various instances of discrimination spanning the entire twenty years of Williams's employment. On Giant Food's motion, the district court dismissed this initial complaint and granted Williams leave to file an amended complaint alleging failure-to-promote claims specifically.1

Williams filed an amended complaint alleging violations of Title VII and § 1981 based upon Giant Food's failure to promote her to the position of general manager or district manager during her employment and seeking damages and injunctive relief. Giant Food moved the district court to dismiss the amended complaint or for summary judgment, arguing that (1) most of Williams's failure-to-promote claims were untimely and (2) Williams could not prevail on her timely claims because she never applied for the relevant promotions.

After a hearing on Giant Food's motion, the district court dismissed all claims based upon promotion decisions that were made prior to the applicable limitations periods. Thus, the district court pared the case down to the question whether Williams could establish a prima facie case of discrimination based upon promotion selections made during the three-year period from May 1998 to May 2001. Because Williams alleged that Giant Food had an

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informal or secretive promotion process that kept her uninformed of promotion opportunities, the district court permitted Williams to conduct discovery limited to matters concerning Giant Food's job posting practices for the positions of general manager and district manager.

After the parties conducted the discovery permitted by the district court, Giant Food moved for summary judgment on the...

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