Last month in an unpublished opinion, Freeman v. North State Bank, the Fourth Circuit Court of Appeals (which includes North and South Carolina) affirmed summary judgment for a bank employer on race discrimination and retaliation claims. The court found that while the bank’s legitimate, nondiscriminatory reasons for awarding a female African-American employee a lower bonus than her Caucasian counterparts were “varied,” they were not materially inconsistent enough to constitute pretext. The plaintiff relied on a 2001 Fourth Circuit decision which held that “offering different justifications at different times is, in and of itself, probative of pretext.” However, in June, the Court held that although the bank gave varied explanations on several occasions, the employee failed to establish a prima facie case of race bias under Title VII.
The plaintiff was the only African-American of three administrative loan assistants at the bank. She supported one loan officer and the Caucasian assistants both supported two loan officers. One of the Caucasian assistants volunteered to support a third loan officer, while the plaintiff still only supported one. The bank considered each employee’s commitment to the job, work ethic, quality of work and overall job performance to determine their annual bonuses. The plaintiff received the lowest bonus of the three assistants. In response to her complaints, she was told on one occasion that bonuses were discretionary and the larger bonus was based on the other employee’s volunteering to support three loan officers. The plaintiff was later told that the other assistant’s loan portfolio was more complex and that the other assistant’s work was “cleaner” than hers.
In response to her discrimination claims, the Fourth Circuit held that the plaintiff failed to establish a prima facie case of discrimination because “receiving a lower discretionary bonus than similarly situated white co-workers does not constitute an adverse employment action.” Further, notwithstanding the varied rationales it offered on different occasions, the bank was free to premise its bonus decisions on its chosen non-race-based criteria. The plaintiff failed to prove that the bank’s explanations for the differences in bonuses were pretextual.
Although the Court did not find the varied explanations to be probative of pretext in this case, employers should still be consistent in the explanations provided to employees regarding personnel and employment decisions.