Hawkins v. PepsiCo, Inc.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LISA HAWKINS,

Plaintiff-Appellant,

v.

PEPSICO, INCORPORATED, d/b/a Pepsi-

Cola North America, d/b/a Pepsi-

Cola Bottling Company, d/b/a Pepsi

No. 98-2193

South,

Defendant-Appellee.

AMERICAN CIVIL LIBERTIES UNION OF

NORTH CAROLINA LEGAL FOUNDATION,

INCORPORATED; NORTH CAROLINA

ACADEMY OF TRIAL LAWYERS,

Amici Curiae.

Appeal from the United States District Court

for the Middle District of North Carolina, at Winston-Salem.

William L. Osteen, District Judge.

(CA-96-1013-6)

Argued: October 26, 1999

Decided: February 15, 2000

Before WILKINSON, Chief Judge, and WIDENER and KING,

Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Chief Judge Wilkinson wrote the

opinion, in which Judge Widener and Judge King joined.

_________________________________________________________________

COUNSEL

ARGUED: Joyce Leigh Davis, JOYCE L. DAVIS & ASSOCIATES,

Raleigh, North Carolina, for Appellant. Charisse R. Lillie, BAL-

LARD, SPAHR, ANDREWS & INGERSOLL, L.L.P., Philadelphia,

Pennsylvania, for Appellee. ON BRIEF: Zoe G. Mahood, JOYCE L.

DAVIS & ASSOCIATES, Raleigh, North Carolina, for Appellant.

Suzanne E. Turner, Matthew M. Gutt, BALLARD, SPAHR,

ANDREWS & INGERSOLL, L.L.P., Philadelphia, Pennsylvania;

Cecil W. Harrison, Jr., POYNER & SPRUILL, L.L.P., Raleigh, North

Carolina, for Appellee. John W. Gresham, FERGUSON STEIN LAW

OFFICES, Charlotte, North Carolina; Deborah K. Ross, AMERICAN

CIVIL LIBERTIES UNION OF NORTH CAROLINA, Raleigh,

North Carolina; Henderson Hill, NORTH CAROLINA ACADEMY

OF TRIAL LAWYERS, Charlotte, North Carolina, for Amici Curiae.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

Appellant Lisa Hawkins filed an employment discrimination suit

against appellee PepsiCo, Inc. Hawkins alleged, inter alia, that her

supervisor created a racially hostile environment and terminated Haw-

kins because of racial animus. Hawkins, however, has shown nothing

more than a routine difference of opinion and personality conflict

with her supervisor. Because we refuse to transmute such ordinary

workplace disagreements between individuals of different races into

actionable race discrimination, we affirm the judgment of the district

court dismissing Hawkins' claims.

I.

Lisa Hawkins was employed by Pepsi from 1990 to 1994. She

began as a Brand Manager and was promoted to Franchise Manager

in 1991. She became an Administrative Manager in 1992 and served

in that position until it was eliminated in June 1993. That same

month, Hawkins was hired by Sally Price, General Manager of

Pepsi's newly formed Customer Service Center (CSC) in North Caro-

2

lina, to be a Tel-Sell (telephone sales) Manager. Hawkins reported

directly to Price in her new position.

Because the district court dismissed Hawkins' claims on Pepsi's

motions for summary judgment and judgment as a matter of law, we

view the evidence in the light most favorable to her. See Hartsell v.

Duplex Prods., Inc., 123 F.3d 766, 768 (4th Cir. 1997); Brown v. CSX

Transp., Inc., 18 F.3d 245, 248 (4th Cir. 1994). Hawkins, who is

African-American, claims that Price, who is white, engaged in various

forms of race discrimination against her at the CSC. Hawkins

advances a long list of complaints about Price. She alleges that she

and Price had a strained relationship that was unlike the relationships

between Price and the white managers Price supervised. Price did not

adequately inform Hawkins of her responsibilities and gave Hawkins

instructions on scraps of paper. Hawkins' suggestions at meetings

were often criticized or laughed at by Price. Price rarely praised Haw-

kins in public. Price failed to acknowledge Hawkins' input and criti-

cized her for not being a "team player." Hawkins perceived all of this

to be in marked contrast to Price's treatment of Hawkins' white peers.

Price also told Hawkins that she was "not of the caliber" to be a CSC

manager, but Hawkins never heard Price use the same phrase to

describe a white person's performance. Hawkins further claims that

Price subjected Fred Canady, the only other African American who

reported directly to Price, to similar criticism.

According to Hawkins, when Price criticized a document that Haw-

kins had prepared, Hawkins presented her with the same document

the next day and falsely claimed that a white manager had also

worked on it. Price then told Hawkins that the document looked great.

Price also gave gifts to all managers except Hawkins during a dinner

at Price's home. After Hawkins took a personality test upon Price's

orders, Hawkins believed Price mocked the results even though Price

did not laugh at white managers with the same personality type. When

Hawkins suggested that she and Price attend a seminar entitled "Suc-

cessful Managerial Skills for Black Managers," Price refused.

What Hawkins disputes most vigorously, however, is the accuracy

of Price's evaluation of her job performance. For example, in a Janu-

ary 1994 performance appraisal, Price rated Hawkins"below target"

in several areas and criticized her even in areas where Hawkins

3

received a satisfactory grade. Hawkins alleges that Price's assessment

of her performance was excessively negative and often based on erro-

neous information. Hawkins also claims that Price's feedback was in

some instances too general and failed to elaborate on the positive

aspects of Hawkins' performance. Hawkins further states that Price

also gave Canady a "below target" rating while rating all white

employees who reported to her "on target" or"above target."

Hawkins complained about Price to several members of Pepsi's

senior management. For example, Hawkins faxed a memo to Pepsi's

Chief Operating Officer but allegedly received no response. Hawkins

states that she also shared this memo with Price and discussed it with

her to no avail. Several other senior managers advised Hawkins on

dealing with Price and said that they would follow up on the matter.

Hawkins claims, however, that Pepsi's efforts to investigate and rem-

edy her situation were on the whole inadequate.

Hawkins also states that she had previously complained to Pepsi

management about racial concerns when she was a Franchise Man-

ager. She alleges that long before she encountered Price, she had

racial problems with Lee Teeter, a Pepsi bottler, and that her com-

plaints caused racial tension with her supervisor at the time. Hawkins

claims that Price was aware of Hawkins' complaints stemming from

this incident.

In February 1994, Hawkins met with Price and CSC Human

Resources Director Jane Marvin for a performance review. They dis-

cussed Hawkins' performance, Hawkins' difficulties with Price, and

the possibility of Hawkins' seeking other employment, including a

sales position within Pepsi. Price cautioned, however, that she was

uncomfortable recommending Hawkins for a sales position because

she had not seen her sell.

On March 3, 1994, Hawkins met with Price and then Marvin to

review her situation. During her time at the CSC, Hawkins had

worked mostly on special projects for Price rather than in a Tel-Sell

capacity. Marvin stated that Hawkins was no longer needed for spe-

cial projects and that there was no Tel-Sell opportunity for her in the

CSC. Marvin also said that no sales position was available for Haw-

4

kins. Marvin then handed Hawkins a termination letter informing her

that she was discharged effective the following day.

On September 12, 1996, Hawkins filed an employment discrimina-

tion lawsuit against Pepsi in the United States District Court for the

Middle District of North Carolina. Hawkins alleged that Pepsi dis-

criminated against her on the basis of race in violation of 42 U.S.C.

§ 1981 and state law. She claimed that she was the victim of a hostile

work environment and was wrongfully discharged because of her race

and/or in retaliation for her complaints of race discrimination. Haw-

kins also accused Pepsi of intentional and negligent infliction of emo-

tional distress.

At the close of discovery, the district court granted summary judg-

ment to Pepsi on a number of Hawkins' claims. The court held that

Hawkins had failed to produce sufficient evidence of a racially hostile

environment. The court also dismissed her emotional distress claims

and held that any claims based on events prior to Hawkins' tenure at

the CSC were time-barred.

The parties proceeded to trial on Hawkins' remaining claims of dis-

criminatory and retaliatory discharge. After Hawkins had presented

her case, Pepsi moved for judgment as a matter of law pursuant to

Fed. R. Civ. P. 50(a). The district court granted Pepsi's motion on two

alternative grounds. See Hawkins v. PepsiCo, Inc., 10 F. Supp. 2d 548

(M.D.N.C. 1998). First, the court held that an at-will employee cannot

maintain a § 1981 action for wrongful termination because the

employer and employee have no contractual relationship concerning

the duration of employment. See id. at 553-54. This ground has subse-

quently been rejected by our decision in Spriggs v. Diamond Auto

Glass, 165 F.3d 1015, 1018-19 (4th Cir. 1999) (holding that an at-will

employment relationship is contractual and may serve as a predicate

contract for a § 1981 claim). Second, the district court held that Haw-

kins had failed to produce sufficient evidence to support her claims

of discrimination and retaliation. See Hawkins , 10 F. Supp. 2d at 554-

55.

Hawkins then appealed the district court's dismissal of all her

employment discrimination claims.

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II.

A.

Because Hawkins presents no direct evidence of discrimination,

her discriminatory discharge claims are subject to the burden-shifting

scheme of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),

and its progeny. See Patterson v. McLean Credit Union, 491 U.S.

164, 186 (1989) (McDonnell Douglas scheme applies to § 1981

actions). Assuming arguendo that Hawkins has made a prima facie

case of race discrimination, "the burden of production shifts to [Pepsi]

to articulate some legitimate, nondiscriminatory reason" for its action.

O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311

(1996) (internal quotation marks omitted). Once Pepsi meets this bur-

den, Hawkins must prove that Pepsi's proffered reason was mere pre-

text and that race was the real reason for her termination. See St.

Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993). To avoid

judgment as a matter of law on this question, Hawkins must establish

a "legally sufficient evidentiary basis for a reasonable jury to find for

[her]." Fed. R. Civ. P. 50(a). "[S]ummary judgment or a directed ver-

dict is mandated where the facts and the law will reasonably support

only one conclusion." McDermott Int'l, Inc. v. Wilander, 498 U.S.

337, 356 (1991).

Pepsi asserts that Hawkins was terminated for performance-related

reasons. Pepsi claims that Hawkins performed poorly in her special

projects capacity and failed to improve even after receiving negative

feedback. Pepsi also states that Hawkins' poor performance, coupled

with the lack of available work, led Price to discontinue Hawkins'

special projects position and not to place her in a different position

with Pepsi. Hawkins contends that Pepsi's justification is pretextual

and that she was instead terminated because of Price's racial animus

toward her. The district court found, however, that Hawkins failed to

carry her burden of producing sufficient evidence to support a finding

of intentional discrimination.

Hawkins has failed to demonstrate that the district court erred. To

begin with, Hawkins has failed to show that Pepsi's proffered reasons

for her termination were pretextual. Hawkins claims that Price's criti-

cisms were inaccurate and insists that she actually performed her CSC

6

job well. But when an employer gives a legitimate, non-

discriminatory reason for discharging the plaintiff,"it is not our prov-

ince to decide whether the reason was wise, fair, or even correct, ulti-

mately, so long as it truly was the reason for the plaintiff's

termination." DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir.

1998) (internal quotation marks omitted). And Hawkins cannot show

that Pepsi's stated reasons for terminating her were not the real rea-

sons for her discharge.

Hawkins fails, for example, to supply evidence that Price actually

believed her performance was good. In fact, the evidence presented

by Hawkins shows that Price considered Hawkins' performance to be

generally poor. For instance, Hawkins submitted into evidence Price's

January 1994 performance appraisal of Hawkins. This appraisal

appears to be Hawkins' biggest bone of contention in this case. Price

evaluated Hawkins' performance in four specific areas, or "account-

abilities." The four accountabilities were: (1) "With CSC A/R and

Tel-Sell Teams, select, on-board, and train A/R and Tel-Sell perform-

ers for start-up operation"; (2) "Build information resource for CSC

on existing Tel-Sell operations at Pepsi and at relevant bench mark

companies"; (3) "Support 10-X Lab and FIT team in finalizing Tel-

Sell Design and Implementation"; and (4) "Field Ready Materials

developed for National Roll-out of Centralized Tel-Sell."

Each of these accountabilities was broken down into one or more

specific "measures." Price assigned a rating, accompanied by detailed

written comments, to Hawkins' performance on each of these mea-

sures. On the first accountability, Price rated Hawkins "on target" on

one measure, "below target" on another, and"significantly below tar-

get" on another. On the second accountability, Price gave Hawkins an

"on target" rating on one measure and a "below target" rating on two

others. On the third accountability, Price rated Hawkins "on target"

on one measure and "below target" on another. On the fourth account-

ability, Price rated Hawkins "on target."

Price gave Hawkins an overall rating of "below target" on the

appraisal. Price's general comments on Hawkins' performance con-

sisted of the following:

Lisa demonstrated flexibility in responding to the changes in

her accountabilities caused by the slow-down in the national

7

roll-out of Tel-Sell. Her performance against these account-

abilities though has not met targeted expectations. Lisa con-

sistently has faced difficulties in three areas: (1) team

building and alignment, (2) results orientation, (3)

thoughtful analysis. Lisa's performance was on target when

tasks were specifically spelled out for her, required little

independent thought, and when she did not need to solicit

input or involvement from others. Her performance was

below target when she was required to interact with others

to gain information or deliver results, when she needed to

develop her own project structure and sustain her own proj-

ect momentum or when she needed to provide her own

insights and draw her own inferences from information. Lisa

consistently dropped the ball on projects, provided inade-

quate follow-through and, as a result, missed deadlines. She

is too quick to hand-off tasks to others and jumps to obvious

conclusions without analyzing alternatives or thinking

through implications. In addition, Lisa has been too easily

distracted by non-business issues particularly ones involving

personnel issues or office politics. She fills a disproportion-

ate amount of her time on non-business issues and can be a

distracting influence. As a member of the leadership team,

I expect Lisa to rise above these issues and focus her ener-

gies on creating a positive work environment and delivering

concrete business results. Overall, Lisa's performance has

been unacceptable for someone at her level in the organiza-

tion.

This appraisal, along with other evidence introduced by Hawkins,

shows quite strongly that Price was dissatisfied with Hawkins' perfor-

mance. But instead of producing evidence that shows Price's assess-

ment of her performance was dishonest or not the real reason for her

termination -- as the law requires -- Hawkins disputes the merits of

Price's evaluations. Hawkins took vigorous issue with the January

1994 performance appraisal at length both at trial and in her brief. She

argues that she performed well in her job and offers evidence in an

effort to support this contention, including e-mails and memoranda

written by Hawkins herself and statements allegedly made by her co-

workers. In doing so, Hawkins can prove only the unremarkable fact

that she and Price disagreed about the quality of her work. But we

8

have repeatedly held that in a wrongful discharge action "`[i]t is the

perception of the decision maker which is relevant, not the self-

assessment of the plaintiff.'" Id. (quoting Evans v. Technologies

Applications & Serv. Co., 80 F.3d 954, 960-61 (4th Cir. 1996)); see

also Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980). The alleged

opinions of Hawkins' co-workers as to the quality of her work are

similarly "`close to irrelevant.'" DeJarnette, 133 F.3d at 299 (quoting

Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231, 235 (4th Cir.

1991)).

In short, we do not sit to appraise Price's appraisal. Rather, "[o]ur

sole concern is whether the reason for which the defendant discharged

the plaintiff was discriminatory." Id. (internal quotation marks omit-

ted). Hawkins' extensive efforts to rebut Price's assessment of her

performance simply do not provide a legally sufficient basis for this

conclusion.

Hawkins also disputes Price's alleged inability to find a position

for Hawkins. But Hawkins does not, for example, provide evidence

that Price's decision not to sponsor her for a sales position was due

to anything other than Price's assessment of her CSC performance

and unfamiliarity with her sales ability. Further, Pepsi was not obli-

gated to provide employment to Hawkins even if an appropriate posi-

tion were available. For § 1981 does not compel employers to practice

"economic altruism and thereby immunize protected class members

from discharge" for performance-related reasons. Gairola v. Virginia

Dep't of Gen. Servs., 753 F.2d 1281, 1287 (4th Cir. 1985).

Moreover, Hawkins does nothing more than speculate that Price

terminated her out of racial animus. The thrust of Hawkins' claims is

that Price inappropriately criticized and insulted her in various ways.

Hawkins accuses Price of such things as regarding her as "not of the

caliber" to be a CSC manager, rejecting her input at meetings, making

fun of her personality type, and failing to give her a gift at a party.

But these sorts of disagreements and misunderstandings are ordinary

occurrences in a workplace setting. We decline to impute a racial

character to them based simply on Hawkins' conjecture.

Hawkins attempts to frame Price's behavior in racial terms by

charging that Price did not subject any of Hawkins' white peers to

9

similarly poor treatment. But Hawkins presents no facts that tend to

show this allegedly disparate treatment was due to race rather than

Price's admittedly low regard for Hawkins' individual performance.

Hawkins has demonstrated that she and Price did not see eye-to-eye.

But this showing of a difference of opinion, coupled with Hawkins'

conclusory allegations of racism, cannot reasonably support the con-

clusion that Hawkins' discharge was motivated by racial animus. For

"a plaintiff's own assertions of discrimination in and of themselves

are insufficient to counter substantial evidence of legitimate nondis-

criminatory reasons for an adverse employment action." Williams v.

Cerberonics, Inc., 871 F.2d 452, 456 (4th Cir. 1989). And no court

sits to arbitrate mere differences of opinion between employees and

their supervisors.1

B.

Furthermore, the district court did not err in granting summary

judgment to Pepsi on Hawkins' hostile environment claims. A plain-

tiff can prevail on such a claim only when there is racial harassment

"sufficiently severe or pervasive to alter the conditions of the victim's

employment and create an abusive working environment." Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotation marks

omitted). Hawkins relies on much the same evidence to support her

hostile environment claims as she does to support her discriminatory

discharge claims. For example, in addition to the allegations men-

tioned earlier, Hawkins claims that she received inadequate coaching,

_________________________________________________________________

1 The district court also correctly granted judgment as a matter of law

to Pepsi on Hawkins' retaliatory discharge claims. The McDonnell

Douglas framework applicable to claims of race discrimination applies

to retaliation claims as well. See Karpel v. Inova Health Sys. Servs., 134

F.3d 1222, 1228 (4th Cir. 1998). Thus, assuming arguendo that Hawkins

has made a prima facie case of retaliation, she has failed to prove that

Pepsi's legitimate, non-discriminatory reasons for her termination were

pretextual for the reasons stated above. Further, Hawkins relies on mere

speculation in asserting that her prior racial complaints were the real rea-

son for her termination. As to her prior racial complaints about a Pepsi

bottler, Hawkins shows only that Price had some knowledge of her com-

plaints. There is also substantial evidence that Price was dissatisfied with

Hawkins' performance before Hawkins' complaints about Price to senior

management.

10

had to do work over and over, was unreasonably required to work late

the night of an office Christmas party, and did not have access to the

same work opportunities as other managers.

Again, Hawkins cannot show that these problems were racial in

nature. Indeed, her complaints about Price's management style toward

her are without a hint of racial significance. Even if Price harbored

some personal dislike of Hawkins that made Hawkins' job more diffi-

cult or stressful, "[a]n employer is not required to like his employees."

Cerberonics, 871 F.2d at 457 (internal quotation marks omitted). And

it is for PepsiCo, not the courts, to rule on the wisdom and generosity

of Price's management practices. Thus, in the absence of sufficient

evidence of racial harassment, the district court correctly dismissed

Hawkins' claims.2

We note further that the district court properly dismissed Hawkins'

state employment practices claims along with her§ 1981 claims

because the evidentiary standards for the state and federal claims are

the same. See Hughes v. Bedsole, 48 F.3d 1376, 1383 (4th Cir. 1995).

We have also reviewed Hawkins' objections to various evidentiary

rulings of the district court and find them to be without merit.

_________________________________________________________________

2 The district court also properly awarded summary judgment to Pepsi

on Hawkins' claims based on events occurring prior to Hawkins' tenure

at the CSC. These claims were time-barred by North Carolina's three-

year statute of limitations for § 1981 claims unless Hawkins could show

that the alleged incidents were part of a continuing violation. See, e.g.,

Beall v. Abbott Lab., 130 F.3d 614, 621 (4th Cir. 1997). Because Haw-

kins cannot maintain a claim based on alleged events within the limita-

tions period, there is no present violation to which any acts outside the

limitations period could attach. See Tinsley v. First Union Nat'l Bank,

155 F.3d 435, 442-43 (4th Cir. 1998) (continuing violation theory

requires that at least one act of discrimination occur within the limita-

tions period). And even were Hawkins able to establish a claim based on

her CSC experiences, she has failed to demonstrate any connection

between her previous difficulties as a Franchise Manager and her prob-

lems with Price.

11

III.

There is evidence in the record that suggests Price was a tough,

demanding supervisor. Hawkins recounts instances when Price

required her to redo documents and work late. Hawkins states that

Price was often unreceptive to her ideas. And, as Hawkins alleges,

Price's criticism of her may have been blunt and even at times unfair.

But the types of difficulties that Hawkins encountered with Price arise

routinely in employment relationships. See Van Stan v. Fancy Col-

ours & Co., 125 F.3d 563, 567 (7th Cir. 1997) ("[P]ersonality con-

flicts and questioning of job performance are unavoidable aspects of

employment." (internal quotation marks omitted)). They are an inevi-

table byproduct of the rough edges and foibles that individuals bring

to the table of their interactions. Law does not blindly ascribe to race

all personal conflicts between individuals of different races. To do so

would turn the workplace into a litigious cauldron of racial suspicion.

Instead, legally sufficient evidence is required to transform an ordi-

nary conflict such as that between Hawkins and Price into an action-

able claim of discrimination. See, e.g., Gairola, 753 F.2d at 1285

(evidence is legally insufficient if verdict for party offering that evi-

dence would be necessarily based on speculation and conjecture). The

need for legally sufficient evidence of discrimination is critical in the

context of this lawsuit. Otherwise, supervisors such as Price could not

evaluate employees of a different race without the prospect of a law-

suit. As the Fifth Circuit has noted, without the freedom to criticize

performance, an organization simply cannot function. See Johnson v.

Merrell Dow Pharms., Inc., 965 F.2d 31, 34 (5th Cir. 1992) ("In order

to properly manage its business, an employer must be able to super-

vise, review, criticize, demote, transfer and discipline employees.").

The dilemma is apparent. If supervisors fail to supply enough criti-

cism, they may be accused of a lack of feedback. If they criticize too

much, they may be accused of discriminatory harassment. Either way

they may find themselves hauled into court to answer for their choice.

The instant case illustrates this very danger, as Hawkins at some

points takes issue with Price's reticence about her performance and

at other points complains about Price's excessive feedback. Her suit

amounts mostly to an effort to seek judicial review of the quantity and

quality of workplace criticism. The district court properly dismissed

the action, for employment discrimination law "is not a vehicle for

substituting the judgment of a court for that of the employer." Jiminez

12

v. Mary Washington College, 57 F.3d 369, 377 (4th Cir. 1995).

Accordingly, the judgment is

AFFIRMED.

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