McLean v. Patten Communities, Inc.

• Decision Date: 17 June 2003
• Docket Number: No. 99-1167.,99-1167.
• Citation: 332 F.3d 714
• Parties: Kym MCLEAN, Plaintiff-Appellant, v. PATTEN COMMUNITIES, INCORPORATED; Patten Corporation; Bluegreen Communities, Incorporated; Bluegreen Corporation, a/k/a Bluegreen Patten Corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

332 F.3d 714

Kym MCLEAN, Plaintiff-Appellant, v. PATTEN COMMUNITIES, INCORPORATED; Patten Corporation; Bluegreen Communities, Incorporated; Bluegreen Corporation, a/k/a Bluegreen Patten Corporation, Defendants-Appellees.

No. 99-1167.

United States Court of Appeals, Fourth Circuit.

Argued: September 29, 2000.

Decided: June 17, 2003.

ARGUED:

Leto Copeley, Patterson, Harkavy & Lawrence, L.L.P., Raleigh, North Carolina, for Appellant. Walter J. Kruger, III, Fisher & Phillips, L.L.P., Atlanta, Georgia, for Appellees.

ON BRIEF:

Melinda Lawrence, Patterson, Harkavy & Lawrence, L.L.P., Raleigh, North Carolina, for Appellant. Kelly L. Kubes, Fisher & Phillips, L.L.P., Atlanta, Georgia, for Appellees.

Before WIDENER, NIEMEYER, and TRAXLER, Circuit Judges.

Affirmed in part, vacated in part, and remanded with instructions. Judge WIDENER wrote the opinion, in which Judge NIEMEYER joined. Judge TRAXLER wrote a concurring and dissenting opinion.

OPINION

WIDENER, Circuit Judge:

Kym McLean appeals the district court's grant of summary judgment in her employment discrimination action under 42 U.S.C. § 1981 and North Carolina law. We affirm in part and vacate in part the decision of the district court and remand the case for proceedings consistent with this opinion.

I.

In March 1995, Willard Hodge, a white sales manager at Carolina Hills,¹ hired Kym McLean, a 19-year-old black female, as an at-will employee to work as a receptionist at the defendants' Sanford, North Carolina office. Mrs. McLean's duties included answering the telephone, greeting customers, performing payroll duties, filing, rendering accounts payable and receivable, and keeping track of newspaper advertisements.

She worked at Patten until August 22, 1995, at which time the company says she resigned, and she says she was discharged. That is a matter of dispute.

Mrs. McLean then brought her suit against the defendants, claiming discrimination on account of race with respect to the terms and conditions of her contractual relationship of employment under 42 U.S.C. § 1981 for her first claim for relief. Her second claim for relief was that the public policy of North Carolina prohibited discrimination in employment on account of race and sex and that by discharging her on the basis of race and sex, the defendants had violated the public policy of North Carolina. The third claim for relief was that Hodge and other supervisors were retained by the defendants as employees although they had subjected, or were continuing to subject, Mrs. McLean and other female employees to acts of discrimination and harassment based on race and sex. The district court's decision provided that "she has clarified that she does not seek to state a state law claim for `sexual or racial harassment.'" That is verified on page 2 of Mrs. McLean's brief in this court where she states for her first cause of action that "defendants terminated her on the basis of her race in violation of 42 U.S.C. § 1981"; "[s]econd ... wrongful discharge claims under North Carolina law asserting that the terms of her employment violated North Carolina public policy in that it was motivated both by her race and her sex"; and "[f]inally... a claim for negligent retention and supervision under North Carolina law."

While Mrs. McLean was employed at Patten, she, and at least some of the other female employees, were subjected to all manner of propositions, indignities and insults based on race or sex, or both. While most of the incidents we refer to were the acts of Hodge, there were also others upon which, although relevant, we depend only in insignificant part here.

Because our decision is arrived at in an appeal from a summary judgment, the evidence which we recite is made up of statements, affidavits, depositions, and documents in the record which are not inherently incredible and which we credit for the purposes of this decision.

According to a female employee at Patten, after Mrs. McLean left, Hodge joked about wanting to have sex with a black woman. As time went on, the female employees were called bitches, whores, sluts, brats, etc. The black employees were referred to as niggers. (J.A. 522-24).

After Mrs. McLean and other black employees had complained about Hodge's conduct, Hodge told another female employee he wanted Mrs. McLean fired, and he meant immediately. He then told that employee to make it hard on her [Kym] so she would quit. He thought that should she be fired, then she would sue the company for discrimination. He made that employee "stay on Kym about ... work performance and wanted her to be overworked so she would quit." Soon after Mrs. McLean left, Hodge started interviewing. When told by a female employee that four women were waiting to be interviewed, including two other black women, he told that employee to "send those Goddam niggers out of here," that he wasn't hiring any more of them. (J.A. 524).

When talking to Mitch Barron relating to the employee whom he had hired following Mrs. McLean's leaving, Hodge told him it would be hard for them [Mitch and Chet] to get anything done because "they've been too busy flirting with the two new women." He also told them that "they would have to wait their turn, that he [Hodge] would get into their pants before they [Mitch and Chet] would." (J.A. 523-24).

A female employee walked in on conversations Hodge was having with two other female employees, where "he seemed to be trying to get them to sleep with him for more money, the way he would me for so long." "It got to the point where [Hodge] didn't care who was around, he would say things to us about sexual intercourse, oral sex, multiple partners, his marital sex life.... On one occasion he told us how he'd like to tie us up all at one time and put bags over our heads and f* * * us until we couldn't take anymore. He thought this was humorous, however we were insulted." (J.A. 524).

Hodge told "the sales agents that he was going to fire [one female employee] because I was not doing my job and he thought I was a spoiled little bitch driving around in a $30,000 car. But he continued to tell me that if I `f* * *ed him' I'd be there until the end and no one would ever find out. I told him he was crazy." (J.A. 524). Hodge told another female employee, on more than one occasion, that he had a "big dick like brothers." (J.A. 353-54).

Speaking to one female employee of another female employee, Hodge also said that he would like to put a bottle up her and spin her on it. (J.A. 356).

Speaking of another female employee, Hodge told Mrs. McLean that he would like to "put his penis between her breasts and to screw her or f* * * her in that manner." (J.A. 291).

Referring to another female employee, Hodge said that "he'd turn her from being a dike to being a real woman." He would "show her what a real man could do for her." (J.A. 367).

Speaking to another female employee, he said, "[T]he wife is out of town. Honey, how about coming on by?" (J.A. 373).

Speaking of another female employee, he said that he would like to "ride her like a horse or a bull." (J.A. 365).

Hodge, referring to himself, told Mrs. McLean that she "should sleep with an old white man." (J.A. 284).

When asked by Mrs. McLean how he liked his coffee, he replied, "Hot and black like I like my women." (J.A. 272). That same remark was made for Mrs. McLean's benefit by Hodge in a conversation with a contractor. (J.A. 274).

Hodge propositioned Mrs. McLean by comparison to a black model with whom he had sexual relations while he was working for Vidal Sassoon. The implication was "what I could do for you" and "would you like to be with me." (J.A. 278).

There is evidence that an advertisement was placed for a replacement for Mrs. McLean prior to the time she was either fired or had resigned. (J.A. 444; Supp.1 doc. 36, p.12).

When Mrs. McLean and another female employee were out of the office with Hodge to purchase office furniture, Hodge repeatedly asked the other employee to stop at a hotel while they were out "so that she could do him, which meant to give him head," which meant Hodge solicited the other employee to engage in oral sex. (J.A. 319).

Hodge told another female employee that "he was glad that he had finally gotten rid of all the Niggers in the office." (J.A. 529).

Hodge told a female employee on several occasions that another male supervisory employee desired her and that she "could probably get just about anything that I wanted if I would parade around naked in front of him." (J.A. 529).

There was evidence that Mrs. McLean and other female employees had complained to people in management about the conduct of Hodge with reference to black and female employees. Hodge's employment was terminated December 31, 1995.

Mrs. McLean rejected every solicitation of Hodge to respond to his sexual advances and complained about his conduct to supervisory employees. At which time, in the words of the district court: "Hodge not only cooled toward her, but affirmatively undertook to make her employment so difficult and uncomfortable that she would resign." (J.A. 561).

II.

Mrs. McLean filed her complaint in the district court. The complaint alleged that: 1) she was discriminated against because of her race under 42 U.S.C. § 1981; 2) she was discharged on the basis of race and sex, in violation of North Carolina's public policy against discrimination in employment; and 3) defendants negligently retained or supervised Hodge, and Barron and Shires, other supervisors.

Defendants moved for summary judgment. They asserted that McLean resigned and could not identify who fired her, thus they argued her race and sex discrimination claims must fail. They additionally argued that her negligent retention claim must fail because she failed to allege a cognizable tort, she was not injured, and the defendants did not know or have reason to know of Hodge's unfitness. McLean responded and reasserted her claims under 42 U.S.C. § 1981, North Carolina...