Patterson v. McLean Credit Union

• Decision Date: 25 November 1986
• Docket Number: No. 85-2394,85-2394
• Citation: 805 F.2d 1143
• Parties: 42 Fair Empl.Prac.Cas. 662, 41 Empl. Prac. Dec. P 36,644, 55 USLW 2305, 22 Fed. R. Evid. Serv. 104 Brenda PATTERSON, Appellant, v. McLEAN CREDIT UNION, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1143

805 F.2d 1143

42 Fair Empl.Prac.Cas. 662,

41 Empl. Prac. Dec. P 36,644, 55 USLW 2305,

22 Fed. R. Evid. Serv. 104

Brenda PATTERSON, Appellant, v. McLEAN CREDIT UNION, Appellee.

No. 85-2394.

United States Court of Appeals Fourth Circuit.

Argued Oct. 9, 1986.

Decided Nov. 25, 1986.

Harold L. Kennedy, III, Harvey L. Kennedy (Kennedy, Kennedy, Kennedy and Kennedy, Winston-Salem, N.C., on brief), for appellant.

H. Lee Davis, Jr. (George E. Doughton, Jr., Hutchins, Tyndall, Doughton and Moore, Winston-Salem, N.C., on brief), for appellee.

Before WIDENER and PHILLIPS, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.

JAMES DICKSON PHILLIPS, Circuit Judge:

In this action the plaintiff, Brenda Patterson, sued her employer, McLean Credit Union (McLean), on claims, under 42 U.S.C. Sec. 1981, of racial harassment, and failure to promote and discharge, together with a pendent state claim for intentional infliction of mental and emotional distress. ^* The district court submitted the Sec. 1981 discharge and promotion claims to the jury which returned a verdict in favor of McLean, and granted directed verdicts to McLean on the Sec. 1981 racial harassment claim and on the pendent state claim for intentional infliction of mental and emotional distress. We hold that the claim for racial harassment was not cognizable under Sec. 1981; that the evidence was insufficient to support the pendent state claim; and that the court did not err in its jury instructions nor in its evidentiary rulings on the submitted claims under Sec. 1981. We therefore affirm.

I

Brenda Patterson, a black woman, was an employee of McLean Credit Union from May 5, 1972 to July 19, 1982, when she was laid off. Robert Stevenson, McLean's president, hired Patterson to be a teller and file coordinator. According to Patterson's testimony, when he hired her, Stevenson told Patterson that the other women in the office, who were white, probably would not like her because she was black.

During her ten years of employment with McLean, Patterson experienced treatment that she considered to be racially motivated harassment by Stevenson. She testified that he periodically stared at her for several minutes at a time; that he gave her too many tasks, causing her to complain that she was under too much pressure; that among the tasks given her were sweeping and dusting, jobs not given to white employees. On one occasion, she testified, Stevenson told Patterson that blacks are known to work slower than whites. According to Patterson, Stevenson also criticized her in staff meetings while not similarly criticizing white employees.

Patterson never was promoted from her position as teller and file coordinator throughout her tenure at McLean. Susan Williamson, a white employee who was hired by McLean in 1974 as an accounting clerk, received a title change from "Account Junior" to "Account Intermediate" in 1982. This title change entailed no change of responsibility. Patterson asserted that Williamson's title change was a promotion that Patterson herself should have received, based primarily on her seniority over Williamson. Patterson also claimed that her 1982 layoff was discriminatory because white employees with less experience kept their jobs.

Patterson based her Sec. 1981 claims and her state claim of intentional infliction of mental and emotional distress on the evidence above summarized. The district court held that a claim for racial harassment is not cognizable under Sec. 1981, and refused to submit that claim to the jury. Examining North Carolina case law applicable to Patterson's pendent state claim, the district court concluded that Stevenson's treatment of Patterson did not rise to the level of outrageousness required under state law for recovery for intentional infliction of emotional distress and directed a verdict against Patterson on that claim. The court submitted the Sec. 1981 claims for discriminatory failure to promote and discharge to the jury, which returned a verdict for McLean. This appeal followed.

II

Patterson first challenges the court's refusal to submit her related claims for racial harassment and intentional infliction of mental and emotional distress to the jury.

A

We hold, in agreement with the district court, that Patterson's claim for racial harassment is not cognizable under Sec. 1981, which provides in relevant part that "[a]ll persons within the jurisdiction of the United States shall have the same right ... to make and enforce contracts ... as is enjoyed by white citizens." That racial harassment claims are cognizable under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, does not persuade us otherwise. The broader language of Title VII, which makes unlawful "discriminat[ion] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race," 42 U.S.C. Sec. 2000e-2(a) (emphasis added), stands in critical contrast to Sec. 1981's more narrow prohibition of discrimination in the making and enforcing of contracts. Cf. United States v. Buffalo, 457 F.Supp. 612, 631 (W.D.N.Y.1978) (the intentionally broad provisions of Title VII accommodate claims based on having to work in a racially discriminatory environment), modified on other grounds, 633 F.2d 643 (2d Cir.1980). Claims of racially discriminatory hiring, firing, and promotion go to the very existence and nature of the employment contract and thus fall easily within Sec. 1981's protection. Instances of racial harassment, on the other hand, may implicate the terms and conditions of employment under Title VII, see, e.g., EEOC v. Murphy Motor Freight, 488 F.Supp. 381, 384-86 (D.Minn.1980), and of course may be probative of the discriminatory intent required to be shown in a Sec. 1981 action, see, e.g., Carter v. Duncan-Huggins, Ltd., 727 F.2d 1225, 1233 (D.C.Cir.1984), but standing alone, racial harassment does not abridge the right to "make" and "enforce" contracts--including personal service contracts--conferred by Sec. 1981.

The cases relied on by Patterson are not to the contrary. None directly holds that racial harassment gives rise to a discrete claim under Sec. 1981, as distinguished from recognizing that racial harassment may be relevant as evidence of discriminatory intent supporting a cognizable claim of employment discrimination under Sec. 1981 and that it may give rise to a discrete Title VII claim. See Murphy Motor Freight, 488 F.Supp. at 384 (Title VII claim for racial harassment); Buffalo, 457 F.Supp. at 632-35, 636-37 (discriminatory work environment claim under Title VII; 1981 claims of discriminatory assignment and termination). But cf. Goodman v. Lukens Steel Co., 580 F.Supp. 1114, 1164 (E.D.Pa.1984) (very generally citing Sec. 1981, along with Title VII, as a basis for a claim of racial harassment); Croker v. Boeing Co., 437 F.Supp. 1138, 1191-92, 1193-94, 1195, 1198 (E.D.Pa.1977) (discussing racial harassment claim only under Title VII, but indicating liability based upon both Title VII and Sec. 1981 in order), modified on other grounds, 662 F.2d 975 (3d Cir.1981).

We therefore affirm the district court's grant of directed verdict in Patterson's claim of racial harassment under Sec. 1981.

B

We also agree with the district court that Patterson's evidence was not sufficient to support submission of her pendent state claim of intentional infliction of mental and emotional distress. The essential elements of such a claim under North Carolina law are (1) extreme, outrageous conduct, (2) intended to cause and causing (3) severe emotional distress. E.g., Dickens v. Puryear, 276 S.E.2d 325, 335 (N.C.1981). The district court ruled that given its most favorable reading, Patterson's evidence of McLean's conduct did not rise to the level of outrageousness and extremity required by the North Carolina courts to allow recovery under this cause of action. We agree with this assessment. The standard of "outrageousness" established in the relatively few state court decisions is understandably a stringent one. Recovery under that standard has been permitted only for conduct far more egregious than any charged to McLean in Patterson's evidence.

For example, in Woodruff v. Miller, 307 S.E.2d 176, 178 (N.C.App.1983), recovery was permitted where a defendant had employed what the court characterized as "truculent, vindictive methods" inspired by a "consuming animus against plaintiff" to circulate a thirty year old record of plaintiff's nolo contendere plea to a criminal charge, had compared plaintiff to dangerous fugitives, and had taken open delight in plaintiff's resulting mental disturbance.

In Dickens, recovery was permitted against a defendant who had assaulted plaintiff and threatened to kill him unless he left the state.

Of particular relevance is Hogan v. Forsyth Country Club Co., 340 S.E.2d 116 (N.C.App.1986), in which one of three female plaintiffs recovered for intentional infliction of emotional distress when a fellow employee of her employer-defendant screamed and shouted at her, engaged in non-consensual and intimate sexual touching, made sexual remarks, and threatened her with a knife. Significantly, the two other plaintiffs were denied recovery though the same fellow employee had screamed,...