Frazier v. First Union Nat. Bank, C-C-89-257-P.

Citation747 F. Supp. 1540
Decision Date02 October 1990
Docket NumberNo. C-C-89-257-P.,C-C-89-257-P.
CourtUnited States District Courts. 4th Circuit. Western District of North Carolina
PartiesJeannette FRAZIER, Carolyn Rhinehart, Hudolphus Delaney, and Clayton Cuthbertson, Plaintiffs, v. FIRST UNION NATIONAL BANK, a bank, Defendant.

Michael A. Sheely, Blum & Sheely, Charlotte, N.C., for plaintiffs.

Francis C. Clark, First Union National Bank of N.C., Edward T. Hinson, Jr., James McElroy & Diehl, Charlotte, N.C., J. Thomas Kilpatrick, Smith Currie & Hancock, Atlanta, Ga., for defendant.

MEMORANDUM OF DECISION AND ORDER

ROBERT D. POTTER, Chief Judge.

THIS MATTER is before the Court on Defendant's motions, filed June 18, 1990 and August 7, 1990, for partial summary judgment.

I. PROCEDURAL BACKGROUND.

Plaintiffs, black former and current employees of Defendant, filed this action on June 9, 1989. The named Plaintiffs also sought class certification for those persons similarly situated. On August 10, 1989, the Court denied without prejudice Plaintiffs' motion for class certification. The Court entered a second order on January 8, 1990 denying Plaintiffs' request for class certification. The case, thereafter, has proceeded on behalf of the four (4) named Plaintiffs alone.

Because of the United States Supreme Court case of Patterson v. McLean Credit Union, Plaintiffs sought leave of Court to file an amended complaint. That request was granted by the Court and Plaintiffs filed an amended complaint on January 11, 1990.

Defendant filed a motion on June 18, 1990 for summary judgment on all of the § 1981 claims, on some of the Title VII claims, and the state pendant jurisdiction claim of wrongful discharge in violation of public policy. On August 3, 1990, Plaintiffs filed a response to Defendant's motion for partial summary judgment. Defendant filed a reply on August 20, 1990 to Plaintiffs' response.

Additionally, Defendant filed a second motion on August 7, 1990 seeking partial summary judgment on the remaining state pendant jurisdiction claims of intentional infliction of emotional distress. Plaintiffs responded on September 10, 1990.

On September 17, 1990, the Court conducted a hearing to receive arguments from the parties. Mr. Michael A. Sheely, Esquire of Charlotte, North Carolina was present to represent Plaintiffs. Defendants were represented by Mr. J. Thomas Kilpatrick, Esquire and Mr. Paul Beshears, Esquire of the firm of Smith, Currie & Hancock, located in Atlanta, Georgia. Defendant's local counsel, Mr. Edward T. Hinson, Jr. of the firm of James, McElroy & Diehl, was also present at the hearing.

II. JURISDICTION.

Plaintiffs contend without dispute that this matter is properly before the Court on the following jurisdictional grounds:

28 U.S.C. §§ 1331 and 1343(a)(3) (§ 1981 claims); 42 U.S.C. § 2000e-5(f) (Title VII claims); and the doctrine of pendant jurisdiction (state law claims of discharge in violation of public policy and intentional infliction of emotional distress).
III. FACTUAL BACKGROUND.

First Union National Bank (hereinafter "Defendant") is a financial institution with offices in Mecklenburg County, North Carolina. All four (4) Plaintiffs are black former or current employees of Defendant. There appears to be no genuine issue of material fact in dispute regarding the following facts.

A. Jeannette Frazier.

Frazier was hired by Defendant as a secretary on November 26, 1979. Her responsibilities included operating the switch-board and typing. In June or July, 1980, Frazier was promoted to the position of bankruptcy assistant. Frazier became a fiscal bond agency assistant in the Capital Management Department in 1983. Later in 1983, Frazier received a posted secretarial position to support the Business Development Section within the Training and Development Group.1 The duties of this position included typing, filing and paying invoices.

In June, 1986, Allison Lambert, a white employee in the same department as Frazier, had her previous position of Secretary A expanded to the position of Program Coordinator because of increased volume in the department. In the complaint, Plaintiffs contend that Frazier was interested in a Program Coordinator position and had made her interest known to Defendant. The position was not posted because Defendant treated the position as an expansion rather than a vacancy.

Thereafter, a position for Secretary A in the Training and Development Department that interested Frazier became available. After Jill Flynn, Vice President of Training and Development, informed Frazier that the position was non-management, boring, and unattractive, Frazier opted not to post for the position. Ultimately, Linda Hart-sell was hired for the position on February 23, 1987 and Frazier filled the position of Program Coordinator that had since been vacated by Allison Lambert. The Program Coordinator position carried a higher grade level than the Secretary A position, although Hartsell's responsibilities and pay were increased four months after Hartsell assumed the position. Hartsell's position then became equivalent to that of an Office Administrator.

On March 8, 1988, Frazier filed a charge of racial discrimination with the EEOC. The charge alleged that Defendant had discriminated against her by failing to consider her for the position of Program Coordinator that was filled by Lambert. The charge also alleged that white secretaries were compensated at a higher rate than Frazier. Frazier also claimed that the failure of Defendant to give her the Secretary A position that was subsequently expanded to the position of Office Administrator was discriminatory. Frazier further claimed that Defendant reassigned employees working under her, thus constituting a demotion from Program Coordinator.

A second charge of discrimination was filed by Frazier with the EEOC on May 19, 1988 claiming that Defendant retaliated against her for filing the first charge. Frazier claimed that Defendant failed to conduct her annual performance evaluation in a timely fashion. After the evaluation was completed, Frazier alleged that she received a sub-standard review and that she was harassed by Hartsell.

B. Carolyn Rhinehart.

Rhinehart was hired by Defendant on January 31, 1972. She held various analyst positions until 1986. Each of the positions held by Rhinehart were non-supervisory. After a leave of absence for medical reasons in 1986, Rhinehart returned to Defendant's employ and at her request was transferred from the position of Batch Proof Supervisor to the position of Operations Analyst. The transfer was considered by Defendant as a lateral move in the same pay grade.

In March, 1988, Rhinehart applied for a position as a Training Analyst in the Training and Development Department. A white employee, Karen Cox Fowler, was selected for the position. Several months later, Fowler vacated the position and was replaced by Michael T. Burleson, another white employee. The Training Analyst position was in the same pay grade as Rhinehart's position as an Operations Analyst.

On March 26, 1988, Rhinehart filed a charge of racial discrimination with the EEOC. Rhinehart charged that Defendant discriminated against her by failing to promote her to the position of Training Analyst. She also alleged that Defendant promoted three white persons over her to the position of Senior Technical Writer Analyst. Rhinehart further alleged that she was denied a raise in November, 1986 based on her race when she returned to work as an Operations Analyst.

C. Hudolphus Delaney.

Delaney has been employed by Defendant for over twenty (20) years in various positions. In October, 1979, Delaney was a Data Entry Supervisor for Defendant. Delaney requested an upgrade on several occasions. That request was denied each time although a white employee did receive an upgrade to that position in 1983. In 1983, 1984, and 1985, Delaney posted for the position of Control Supervisor. The position was eventually given to a white employee.

On August 24, 1988, Delaney posted for the position of Merchant Service Supervisor. Defendant's personnel representative determined that Delaney lacked the necessary skills for that position. Thereafter, that position was filled by a white employee.

Delaney filed a charge of discrimination with the EEOC on October 3, 1988 claiming that Defendant retaliated against him for opposing discriminatory employment practices. According to Delaney, the basis of the retaliation was a Title VII lawsuit that he filed in 1970. In November, 1988, Delaney's annual performance review was negative in that Delaney had failed to meet expectations. After the review, Delaney filed another charge of racial discrimination with the EEOC alleging that the poor performance evaluation was in retaliation for the EEOC charge of October 3, 1988.

In 1989, Defendant decided to eliminate positions in the department in which Delaney was employed. Delaney was offered the choice of a job with a lower grade level or displaced status. On February 27, 1989, Delaney filed another discrimination charge with the EEOC alleging that Defendant's action of threatening displacement and failing to place him in a suitable position amounted to retaliation. Ultimately, Delaney accepted a position at a lower grade, but his level of compensation was not reduced.

D. Clayton Cuthbertson.

Defendant hired Cuthbertson on April 27, 1987 as a Systems Engineer in the Systems Support Department of the Automation Division.

Cuthbertson filed a charge of racial harassment with the EEOC on August 29, 1988. Cuthbertson alleged that his white supervisor, Robert Zimmerman, cursed him, told him that he should leave Defendant's employ, denied him training, delayed his review and then gave him an inaccurate negative review, denied him a raise, and denied him a promotion.

On October 31, 1988, Cuthbertson was terminated. According to Defendant, he failed to report to work on October 29, 1988 to help perform the conversion of Defendant's...

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