Tipton v. Canadian Imperial Bank of Commerce

• Decision Date: 17 May 1989
• Docket Number: No. 87-8798,87-8798
• Citation: 872 F.2d 1491
• Parties: 49 Fair Empl.Prac.Cas. 1490, 50 Empl. Prac. Dec. P 39,028, 117 Lab.Cas. P 56,453, 4 Indiv.Empl.Rts.Cas. 721 Mary D. TIPTON, Plaintiff-Appellant, v. CANADIAN IMPERIAL BANK OF COMMERCE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1491

872 F.2d 1491

49 Fair Empl.Prac.Cas. 1490,

50 Empl. Prac. Dec. P 39,028,

117 Lab.Cas. P 56,453,

4 Indiv.Empl.Rts.Cas. 721

Mary D. TIPTON, Plaintiff-Appellant, v. CANADIAN IMPERIAL BANK OF COMMERCE, Defendant-Appellee.

No. 87-8798.

United States Court of Appeals, Eleventh Circuit.

May 17, 1989.

James W. Howard, Howard, Secret & Wilde, P.A., Atlanta, Ga., for plaintiff-appellant.

W. Lyman Dillon, Hansell & Post, Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before CLARK and HATCHETT, Circuit Judges, and FITZPATRICK ^*, District Judge.

FITZPATRICK, District Judge.

Mary Tipton brought this suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. Secs. 2000e-2(a)(1) and 2000e-3(a), and various provisions of State law alleging sex discrimination and retaliatory discharge, breach of contract, interference with a contractual relationship, and fraudulent and deceptive conduct on the part of Defendant Canadian Imperial Bank of Commerce (CIBC) both before and during the employment relationship. The district court granted summary judgment in favor of CIBC on all of Tipton's claims except those alleging disparate treatment and retaliatory discharge. Following a non-jury trial, the district court entered its findings of fact and conclusions of law ruling in favor of CIBC on the remaining claims. After considering the issues raised on appeal, we affirm.

I. FACTS

CIBC is a Canadian corporation and banking institution which conducts business in the United States, including the State of Georgia. In August of 1983, a managerial position became open in CIBC's Atlanta office. Paul Cropley, then Senior Manager of CIBC's Atlanta office, was responsible for filling the position. Cropley screened several applicants and eventually interviewed Tipton, who had been approved and referred to Cropley by CIBC's New York office. Following the interview, CIBC's Personnel Manager sent Tipton a letter offering her the position and setting forth certain terms of the employment. On April 7, 1984, Tipton accepted the offer and returned the letter to the Personnel Manager. Thereafter, on May 1, 1984, Tipton began her employment with CIBC as Manager, Corporate Banking, in the Atlanta office.

Tipton was the first female manager employed by CIBC's Atlanta branch, and she remained as the only female manager during the length of her employment. Cropley supervised Tipton as well as three other male managers in the Atlanta office. Each of the three male managers had been with CIBC for a number of years at the time Tipton began her employment. During her first three months with CIBC, Tipton had an excellent working relationship with Cropley. She testified at trial that during this time, Cropley went out of his way to present Tipton to customers in a professional manner.

Tipton's problems with Cropley began when she brought to CIBC a complex joint venture financing transaction. Even though Tipton did not ask him to do so, Cropley brought in CIBC's Corporate Finance Group in Chicago to negotiate and handle the joint venture. While Tipton believed that Cropley's bringing in the Chicago Group was unique to her, the evidence showed that the Chicago Group had handled other complex transactions for managers in the Atlanta office including Cropley.

Once the Chicago Group became involved, they had the primary responsibility for negotiating, handling, and completing the deal. Tipton, however, still received credit for bringing the business to CIBC, and she had the ongoing responsibility to manage the client relationship. Tipton's limited scope in the transaction caused her to become dissatisfied and critical. She criticized Cropley's decision to bring in the Chicago Group as well as the Group's handling of the transaction. She continued to complain about the handling of the joint venture as long as she worked for CIBC.

In addition to her complaints about the joint venture, Tipton stated that Cropley placed severe restrictions on her communication with customers. In fact, Tipton testified that she was not allowed to discuss anything with anyone unless she received initial clearance from Cropley. The district court found, however, that the evidence presented at trial did not support Tipton's testimony concerning these restrictions. Specifically, the district court referred to several documents showing that Tipton had numerous contacts with both customers and law firms representing prospective customers outside of Cropley's presence.

Tipton's final complaint regarding Cropley involved a signing authorities memorandum that was circulated at CIBC's Atlanta office. In July of 1984, Cropley received a letter from his immediate supervisor in New York instructing him to review and establish control over signing authorities at the Atlanta agency. Signing authorities establish which individuals are authorized to sign or act for the Bank in certain specified matters. The signing authorities memorandum in question was prepared by Bill Jenkins, then Manager of Corporate Credit and Administration. Cropley reviewed and approved the memorandum without changing Jenkins' recommendations. The memorandum was then circulated throughout the office for acknowledgement and signature.

The memorandum reached Tipton's desk on August 31, 1984. Tipton refused to sign the memorandum and wrote an abrasive note to Cropley complaining that she was not given the same signing authority given to her peer, Bill Maron. Later in the day, Tipton came to Cropley's office, handed him a typed document, and told him that he was "terrified of New York," that she did not like the way he was "running things," and that he needed to "get his act together." Cropley attempted to explain to Tipton that her signing authority was different from Maron's due to her brief tenure and relative unfamiliarity with CIBC's policies and internal procedures. He pointed out that she had more than adequate signing authority to perform her duties, and that Maron had more signing authority only because an additional signature was needed when both Cropley and his deputy manager were away on business. CIBC's auditor also testified that Maron was given the additional signing authority only because of the few number of managers in the Atlanta office. When CIBC's Atlanta branch eventually hired another "operations manager," Maron's signing authority was discontinued.

At the time Tipton stated her protests concerning the memorandum, Cropley told her that he would consider removing Maron's name from the memorandum. On September 5, 1984, however, Cropley notified Tipton in writing that he had decided against removing Maron's name. Cropley delivered his decision to Tipton on September 5th, and a lengthy discussion ensued. During this discussion, Tipton complained that the various restraints Cropley had placed on her were interfering with her job and jeopardizing her credibility with customers. Tipton again voiced her criticism of Cropley's decisions to bring in the Chicago Group on the joint venture transaction, and to retain Maron's name on the signing authorities memorandum. She further stated that she believed Cropley was discriminating against her, and she informed Cropley that she had the right to take legal action to oppose the alleged discrimination. Cropley again set forth his reasons for making the management decisions he had made. He also told Tipton that he was concerned about her ability to work under his authority.

When Cropley arrived at his office on the morning of September 7, 1984, he found on his desk a copy of a letter Tipton had sent to his superior in New York. In the letter Tipton raised her complaints about the handling of the joint venture transaction, the restraints on her communication with customers, and the limitations placed on her signing authority. The letter did not state that she had more than adequate signing authority to perform her duties, nor did it state that Cropley had given her a full explanation as to why Maron was given more signing authority than was she. Moreover, Tipton did not raise any allegations of sex discrimination in the letter.

After reading the letter, Cropley met with Tipton and informed her that he no longer had confidence or trust in her ability to perform her job functions in a manner consistent with CIBC's management style. Cropley told Tipton that her insubordinate comments and her inability or unwillingness to accept his authority were not conducive to continued performance of her duties. Cropley offered Tipton an opportunity to resign, but she refused. He then informed Tipton that she was terminated. Tipton, however, questioned his authority to take such action. After Cropley again informed Tipton that she was terminated, the deputy manager came in to assist with her departure.

II. LEGAL ANALYSIS

A. Retaliation Claim

Tipton argues that because the evidence showed she was fired because of her protests against alleged sex discrimination, the district court erred in ruling against her on the retaliatory discharge claim. The district court's ruling on the retaliation claim must be affirmed unless the findings of fact on which it was based are clearly erroneous. Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982). Where two permissible views of the evidence exist, "the factfinder's choice between them cannot be clearly erroneous." Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).

Title VII prohibits an employer from discriminating against an employee who has opposed what she believes to be unlawful discrimination. 42 U.S.C.A. Sec. 2000e-3(a) (1981). The employee need not prove the underlying claim of discrimination which led to her protest. Jurado v. Eleven-Fifty Corp., 813 F.2d 1406, 1411 (9th Cir.1987); Spence v. Local 1250, United Auto Workers of America, 595 F.Supp. 6, 10 (N.D.Ohi...