UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1118
ALVIN PULLEY,
Plaintiff - Appellant,
versus
KPMG CONSULTING, INCORPORATED, a/k/a
Bearingpoint, Incorporated,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (CA-03-
1898-RWT)
Argued: December 2, 2005 Decided: June 2, 2006
Before WILKINS, Chief Judge, LUTTIG,1 Circuit Judge, and Walter D.
KELLEY, Jr., United States District Judge for the Eastern District
of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Michael Gerard Kane, CASHDAN & KANE, P.L.L.C., Washington,
D.C., for Appellant. Stephen W. Robinson, MCGUIREWOODS, L.L.P.,
McLean, Virginia, for Appellee. ON BRIEF: Meredith S. Francis,
CASHDAN & KANE, P.L.L.C., Washington, D.C., for Appellant.
1
Judge Luttig heard oral argument in this case but resigned
from the court prior to the time the decision was filed. The
decision is filed by a quorum of the panel pursuant to 28 U.S.C.
§ 46(d).
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
PER CURIAM:
Alvin Pulley appeals the district court's order granting
summary judgment to his employer, KPMG Consulting, Inc., a/k/a
Bearingpoint, Inc. ("KPMG"), on Pulley's claims that KPMG racially
discriminated and retaliated against him in violation of 42 U.S.C.
§ 1981. Finding no error, we affirm.
I.
Pulley, an African-American male, began his employment with
KPMG in July 1999. KPMG, which is based in McLean, Virginia,
provides information technology and management consulting services
to various companies and government organizations worldwide. KPMG
originally employed Pulley in its McLean office as a consultant in
its Global Consulting Solution Center. Although he was assigned to
the McLean office, Pulley worked a majority of the time from home
on his personal computer.
In his Year End Review for the 2000 fiscal year, Pulley
received an overall score of "Meets Expectations." This score was
the third highest (or, depending on one's perspective, the third
lowest) out of five possible overall scores.2
2
The five possible overall scores, ranked highest to lowest,
were: Significantly Exceeds Expectations, Exceeds Expectations,
Meets Expectations, Meets Some Expectations, and Does Not Meet
Expectations.
3
In July 2000, Pulley was transferred to KPMG's Business
Development and Knowledge Center ("BDKC"). Pulley was the only
African-American employee out of approximately 55 employees working
in the BDKC. Pulley was assigned to work with a team of other
employees on a "knowledge sharing and intellectual capital capture"
software application known as the "Intraspect project."
Pulley's supervisor in the BDKC was Performance Manager Mark
Bowerman, a Caucasian male. Pulley and Bowerman did not have a
good working relationship, and Pulley openly disagreed with many of
Bowerman's management decisions.
While Pulley claimed to respect Bowerman's position as a
manager, he admits not having "a great deal of respect" for
Bowerman personally. Pulley perceived that Bowerman was
"uncommunicative" with him, "standoffish," "somewhat hostile" in
demeanor, and "arrogant in refusing to discuss issues." Although
Pulley believed that Bowerman was "very uncomfortable" meeting with
him on a "one-on-one" basis because he is African-American, he did
not have any facts to support that belief.
Despite the lack of a good working relationship between them,
Bowerman gave Pulley an overall score of "Meets Expectations" on
his Year End Review for the 2001 fiscal year. In the review,
Bowerman suggested that Pulley "work on maintaining visibility and
communications" and "expand his profile" on the Intraspect project
4
team. Bowerman concluded that he was "very hopeful that [Pulley]
will elevate his profile and prove his case for a promotion."
In November 2001, Bowerman sent to all the employees on the
Intraspect project team, including Pulley, an email establishing a
framework for work distribution on the project. Bowerman's goals
included, among other things, a more even distribution of the
workload and an increase in the overall efficiency and employee
participation of the entire team. Bowerman invited the individual
team members to respond to his proposed framework. Pulley and
Patricia A. Seaton, who was assigned to work on the Instraspect
project team with Pulley, accepted Bowerman's invitation. They
authored a joint email outlining their perspective on their roles
within the project team.
In response, Bowerman informed Pulley and Seaton by email that
their perspective on his proposed framework was problematic.
Bowerman explained that Pulley and Seaton failed to address his
proposal, but instead merely created a "parallel framework" that
would enable them to "retain control and sole possession of the
program," contrary to Bowerman's goal for the project team.
Bowerman stated that he had "issued a clear imperative over the
last several months, stated very strongly over the last week, that
a primary objective" of the project team was to broaden the team
and increase efficiency. Bowerman concluded that he was not
satisfied with the project team's progress toward that imperative
5
and that the response of Pulley and Seaton exemplified "self-
destructive behaviors" that did not inspire his confidence.
Pulley responded by email dated November 13, 2001. Pulley
criticized Bowerman's proposed framework, stating in relevant part:
It is truly surprising to me that all the issues that you
have mentioned have miraculously become extremely
important at this point in the project. . . .
Going forward, I hope you can make the same commitment
that we have to ensure that this project is successful
and is truly a team effort.
Not surprisingly, Bowerman perceived the tone of Pulley's
email to be disrespectful and sarcastic. Bowerman met with Pulley
to discuss the inappropriate nature of his comments.
In January 2002, Bowerman gave Pulley an overall score of
"Meets Expectations" on his Interim Review for the 2002 fiscal
year. Although Bowerman gave Pulley an acceptable score, he noted
that Pulley needed to improve his performance in several areas,
including greater communication and interaction with the entire
project team and an increased focus on achievement and results.
Bowerman met with Pulley to discuss his concerns about Pulley's
work performance.
In the June 2002 Year End Review, Bowerman lowered Pulley's
evaluation score to "Meets Some Expectations." Bowerman explained
that Pulley had failed to improve his focus on results and
execution and his communication and collaboration with the project
team. Bowerman stated that these areas of needed improvement in
6
Pulley's work performance had become "glaring issues" over the
preceding six months. Bowerman concluded that Pulley failed to
demonstrate certain "attributes . . . identified as important to
being an effective, contributing member of a small operations team:
the ability to churn out work products quickly and effectively and
the ability to collaborate with teammates to accomplish a goal
efficiently."
Pulley sent Bowerman an email, dated June 25, 2002, in which
he questioned, among other things, the score he received in the
annual review. In the email, Pulley expressed his desire to have
his score changed and stated that he had "deep concerns about the
noticeable bias in this review and the direction of the entire
project."
The following day, Bowerman prepared a draft email that
addressed Pulley's concerns. Bowerman sent the draft to Edward
Courtney, KPMG's Chief Knowledge Officer and Managing Director.
Courtney advised Bowerman not to respond to Pulley at that time
because Courtney believed that Pulley was merely "attempting to
just recast his performance under terms that were favorable" to
himself. Courtney was concerned, however, that Pulley may have
been alleging that he was the victim of racial discrimination.
In July 2002, Bowerman was reassigned to a different position
as part of a fiscal year-end reorganization of the BDKC. Denise
Wallace became Pulley's new immediate supervisor. Courtney
7
informed Wallace that Pulley had received a "Meets Some
Expectations" score on the 2002 Year End Review and that he needed
to be placed in a "Performance Improvement Plan" ("PIP"). The PIP
was intended to address the shortfalls in Pulley's performance and
assist Pulley in achieving a minimum level of performance in those
areas. Pulley's continued employment with KPMG was the ultimate
goal of the PIP.
On July 10, 2002, Wallace asked Pulley to meet with her the
following day to "touch base" prior to his planned ten-day
vacation, which was scheduled to begin on July 12, 2002. Wallace
did not mention to Pulley her intention to discuss the PIP with him
at the proposed meeting. Pulley declined Wallace's request to meet
because he planned to work at home the next day so that he could be
readily available to pick up his vehicle from a repair shop in
Maryland. Pulley suggested that Wallace instead call or email him
at his residence. Wallace responded that this was "a good plan"
and that she would attempt to call him on his cellular phone the
following afternoon. The call did not occur. Courtney, Wallace,
and Allison Philhower, KPMG's Human Resources Director, instead
decided to wait until Pulley returned from his vacation before
discussing his PIP with him.
Prior to leaving for vacation, Pulley failed to turn in to
Wallace a completed version of a "Decision Tree Matrix" (the
"Matrix") for the Instraspect project. The Matrix was due by the
8
close of business on July 11, 2002. Its completion had already
been postponed by over two months.
After Pulley returned from his ten-day vacation, he emailed
Courtney and Philhower on July 22, 2002 to inform them that
Bowerman had not yet responded to his questions concerning the 2002
Year End Review. In the email, Pulley inquired about the "process
for filing a formal bias complaint" against Bowerman.
That same day, Wallace contacted Pulley and attempted to
schedule a meeting with him to discuss his PIP. Pulley declined to
meet with Wallace about the PIP because he believed that an
investigation into his complaint against Bowerman should be
completed first.
In addition to attempting to schedule a PIP meeting, Wallace
asked Pulley to send her a completed version of the Matrix and
reminded him that it was due prior to his vacation. Pulley
complied with Wallace's request. Wallace informed Pulley that she
would provide him with "feedback," which he was to incorporate into
the latest version of the Matrix. However, Wallace never sent
Pulley any feedback. Wallace and Pulley scheduled a meeting for
July 24, 2002 to finalize the Matrix.
On July 23, Bowerman finally emailed to Pulley his response to
Pulley's questions concerning the 2002 Year End Review. In the
email, Bowerman explained why he gave Pulley an overall score of
"Meets Some Expectations." Bowerman also stated:
9
I prepared this response to your e-mail, but recognize
that I did not send it to you as promptly as I should
have. Please review my comments. I'd be happy to
discuss any aspect with you directly.
Pulley responded in an email that accused Bowerman of attempting to
single him out for "adverse employment action" and to violate his
"Equal Employment Opportunity rights." Pulley advised Bowerman
that he was going to lodge "a formal bias complaint" against him
and "seek an appropriate remedy."
Pulley sent Courtney, Philhower, and Wallace a copy of his
email. After Pulley discussed his complaint against Bowerman with
Philhower and Equal Employment Opportunity Officer Claudia Boykin,
the PIP meeting was postponed.
Prior to the July 24, 2002 meeting between Wallace and Pulley
to finalize the Matrix, Wallace sent Pulley an email reprimanding
him for his failure to complete the Matrix in a timely fashion.
This reprimand was sent at Philhower's instruction. Wallace's
email stated, in relevant part:
I have reviewed [the Matrix] and look forward to meeting
with you . . . to go over suggested edits. Alvin, this
was due on July 11. Going forward you must meet all
deadlines. If there's a problem meeting a deadline,
please call me to discuss prior to the deadline.
Wallace copied Philhower on the email.
A few minutes before the July 24 meeting, Pulley sent Wallace
a response email and copied Philhower. Pulley's email stated:
Yesterday you emailed me saying you'd have feedback in
the afternoon. Should I expect you to call me when you
do not meet deadlines, particularly those that you set?
10
Philhower replied immediately to Pulley, advising him that the
"tone of this message is inappropriate and unprofessional" and that
she wanted to discuss it with him after the conclusion of the
meeting.
Wallace did not read Pulley's email prior to the July 24
meeting concerning the Matrix. Although Pulley attended the
meeting, he did not speak for approximately the first 20 minutes.
According to Wallace, Pulley simply remained silent and stared at
her. Wallace was "disgusted" with Pulley's behavior, which she
considered to be "ridiculous."3
Immediately after the July 24 Matrix meeting, Wallace read the
email that Pulley had sent in response to her reprimand. Wallace
was "appalled" and expressed disbelief that Pulley would respond to
her in such a "disrespectful and insubordinate" manner.
Courtney, Wallace, and Philhower held a conference call that
afternoon to discuss Pulley's lack of performance and his
disrespectful behavior. Upon the conclusion of the discussion,
they decided to terminate Pulley's employment.4 KPMG fired Pulley
3
Pulley disputes Wallace's account of the meeting. In an
affidavit, Pulley claims that he "participated fully and
professionally" in the meeting and answered all questions that were
directed to him. According to Pulley, Wallace did not ask him any
questions for the first 15 to 20 minutes of the meeting, and she
never suggested to him that she was disturbed by his behavior
during the meeting.
4
Courtney, who was the "final decision maker," conceded in
deposition that Pulley's Equal Employment Opportunity complaint
11
the next day for insubordination and poor work performance.
Pulley's employment responsibilities were reassigned to another
African-American employee.
Pulley subsequently filed this action, alleging that KPMG
racially discriminated and retaliated against him in violation of
42 U.S.C. § 1981. The district court granted summary judgment to
KPMG on Pulley's discrimination and retaliation claims. The court
held that Pulley failed to establish a prima facie case for his
discrimination claims because, among other reasons, he had not
presented evidence from which a reasonable jury could conclude that
his work performance met KPMG's legitimate employment expectations.
The court further held that Pulley could not prevail on his
retaliation claim because he failed to show that KPMG's reasons for
terminating his employment were pretextual.
II.
After reviewing the parties' briefs and the applicable law,
and having had the benefit of oral argument, we conclude that the
district court correctly decided the issues before it.
entered into his thinking during the discussion whether to
terminate Pulley. According to Courtney, he inquired of Philhower
whether Pulley could be terminated after "the EEO question had been
raised." Philhower responded that they could move forward with
Pulley's termination because "enough things" had occurred that they
"had clear reasons to terminate him." (J.A. 216-17, 608).
12
Accordingly, we affirm on the reasoning of the district court. See
Pulley v. KPMG Consulting, Inc., 348 F. Supp. 2d 388 (D. Md. 2004).
AFFIRMED
13