1Judge 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UNPUBLISHED

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Affirmed by unpublished per curiam opinion.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.
2

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
2The 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

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 
4

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
5

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
6

and that the response of Pulley and Seaton exemplified "selfdestructive 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
7

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
8

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
9

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:
10

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?
3Pulley 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

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
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

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.
13

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