                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 07-1251



DOROTHY H. FREEMAN,

                 Plaintiff - Appellant,

           v.


NORTH STATE BANK,

                 Defendant - Appellee,

           and

LARRY BARBOUR; FORREST BALL; JAMES C. BRANCH; CHARLES T.
FRANCIS; GLENN FUTRELL; C. THOMAS HENDRICKSON; KEITH KEENER,
MD; GARY H. PENDLETON, Brigadier General; W. HAROLD PERRY;
NUTAN T. SHAH; FRED J. SMITH; JACK STANCIL; GEORGE VENTERS,
Dr.; JAMES P. BAKER, JR.; ELBERT BOYD; KENT CUMMINGS; SCOTT D.
DAWSON; DAVID FAJGENBAUM; THOMAS HENDERSON; LAMARR ROBINSON;
J. RANDALL TIDWELL; MARK ZURAWEL, Dr.; LELAND E. GARRETT, Dr.;
RONALD B. GRIDLEY; ALLYSON K. DUNCAN, Individually and as they
comprise the Board of Directors and investors of North State
Bank,

                 Defendants.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:03-cv-00916-BO)


Argued:   March 20, 2008                     Decided:   June 10, 2008


Before WILKINSON and KING, Circuit Judges, and C. Arlen BEAM,
Senior Circuit Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.


ARGUED: Julius Chambers, FERGUSON, STEIN, CHAMBERS, GRESHAM &
SUMTER, P.A., Charlotte, North Carolina, for Appellant. L. Diane
Tindall, WYRICK, ROBBINS, YATES & PONTON, Raleigh, North Carolina,
for Appellee. ON BRIEF: Mary M. Williams, WYRICK, ROBBINS, YATES
& PONTON, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Plaintiff Dorothy H. Freeman appeals from the district court’s

award of summary judgment to North State Bank (“North State” or the

“Bank”), her former employer, on race-based claims pursued under

Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981.     In

particular, Freeman, who is African-American, alleges that North

State unlawfully discriminated against her on the basis of her race

in awarding her a lower annual bonus in 2002 than it paid to

similarly situated white employees.    She also maintains that she

was discharged in retaliation for her complaints about the race-

based disparity in the bonuses.    As explained below, we affirm.



                                  I.

                                  A.

     North State is headquartered in Raleigh, North Carolina, and

began operations in June 2000.1   In January 2001, Freeman was hired

as a Loan Administrative Assistant (“LAA”) at North State, where

she helped process loans for a loan officer.2    In 2001, Freeman’s

initial salary was $35,000 per year, and it increased to nearly

$38,000 in 2002. During Freeman’s employment with North State, the


     1
      We recite the facts in the light most favorable to Freeman,
as the non-moving party. See Lee v. York County Sch. Div., 484
F.3d 687, 693 (4th Cir. 2007).
     2
      In addition to her regular duties as an LAA, Freeman also
attended a seminar, picked up flowers, staffed the Bank’s booth at
a business expo, and occasionally provided customer support.

                                  3
Bank also employed two other LAAs:         Karen Kilmer and Paige Fly,

both white. Kilmer had joined North State approximately six months

prior to Freeman, with an initial salary of $35,000.               Kilmer

received raises in 2001 and 2002, resulting in an annual salary of

$38,750.    Fly was hired as a teller seven months after Freeman was

hired, with a starting salary of $25,000.       Fly was promoted to the

position of LAA in January 2002, and received an increase in annual

salary to $27,000 at that time.

      In November 2002, Freeman, Kilmer, and Fly met with Stephen

Salisbury, the Bank’s Senior Vice President, for the purpose of

determining who should provide administrative support for a new

loan officer.    At the time of the meeting, Freeman was supporting

a single consumer loan officer, while Kilmer and Fly each supported

two   commercial   loan   officers.       Constance   Sprigg,   Freeman’s

supervisor, has opined that commercial loans often required more

work from the loan officers, but that in most cases, consumer loans

required more work from the LAAs because more disclosures were

required.    The loan officer Freeman supported processed a larger

number of loans than the Bank’s other loan officers, but the

consumer loans yielded a lower dollar return than the commercial

loans. Prior to the November 2002 meeting, Sprigg and another Bank

employee, Judy Pope, a Customer Service Representative, advised

Freeman not to volunteer for the new loan officer because her

“workload was at the maximum and . . . she just couldn’t handle any


                                      4
more work.”       J.A. 414.3     When Salisbury asked who would provide

administrative support to the new loan officer, Fly volunteered.

As a result, Fly began supporting three loan officers, while Kilmer

continued to support two, and Freeman supported only one.

      On December 3, 2002, North State’s Executive Management Team

met   to   discuss    the    award     of    year-end   bonuses   to    the   Bank’s

employees.        This meeting involved Larry Barbour, President and

Chief Executive Officer; Chuck Washburn, Executive Vice President

and   Chief   Credit        Officer;        Judy   Stephenson,    Executive    Vice

President; Kirk Whorf, Senior Vice President and Chief Financial

Officer;    and    Sandra    Temple,        Senior   Vice   President   and    Chief

Operations Officer.         During the meeting, the Executive Management

Team assessed each employee’s commitment to his/her job, as well as

other factors including work ethic, quality of work, and overall

job performance.      Considering these factors, they decided to award

2002 annual bonuses of $750 to Kilmer, $600 to Fly, and $300 to

Freeman.

      Shortly after North State informed its employees of their

individual bonuses, Sprigg advised Freeman that her 2002 bonus was

less than those paid to Fly and Kilmer.              On January 8, 2003, Sprigg

informed Sandra Temple, who handles human resources issues for the

Bank, that Freeman was concerned about the differences in the



      3
      Citations to “J.A.   ” refer to the Joint Appendix filed by
the parties in this appeal.

                                             5
bonuses. The following week, on January 13, 2003, Freeman wrote to

Barbour, the Bank’s President and CEO, inquiring about the apparent

disparity in bonuses.    Later that same day, Temple and Salisbury

met with Freeman in an effort to address her concerns.

     At the January 13, 2003 meeting, Temple informed Freeman that

Fly had received a larger annual bonus because she volunteered to

support a third loan officer.    Temple further explained that the

bonuses were based on how many loan officers each LAA supported.

Salisbury interrupted Temple, however, explaining that it was his

understanding that the bonuses were discretionary, and not based on

any fixed criteria.     Temple responded that there was more to it

than that, and stated that Salisbury had not been present at the

meeting when the bonuses were discussed. Shortly after the January

13 meeting, Temple met with Freeman again and reiterated that Fly

had received a larger bonus because she had volunteered to provide

support to the new loan officer.

     On January 21, 2003, Freeman wrote the members of the Bank’s

Board of Directors, complaining about her bonus for 2002.       On

January 30, 2003, counsel for North State wrote a letter to Freeman

responding to her concerns, informing her that the bonus decision

was based on “job performance, quantity and quality of work product

as well as certain intangibles such as attitude and work ethic.”

J.A. 257.   It explained that Fly’s willingness to support three

loan officers — compared to Freeman’s single loan officer — was


                                   6
the most important factor in the bonus decisions.                  The letter also

reasoned that Fly’s loan portfolio was more complex than Freeman’s

based on the types of loans that she was processing, and that Fly’s

work was “cleaner.”        Id.

       On January 23, 2003 — before she had received a response to

her letter to the Board — Freeman left work early, because she

“just wasn’t able to go the rest of the day,” since she was

“stressed” and “had anxiety.”             J.A. 229.        Sprigg informed Temple

that     Freeman   was    “so     distressed        over    the   issue   with    the

discretionary bonus, that she could not concentrate on anything

else.”      Id. at 115.   According to Dr. Gerald Blake, a physician who

examined Freeman shortly thereafter, Freeman was suffering from

“severe job-related emotional stresses that prevent[ed] her from

physically working.”        Id. at 263.        Freeman never returned to work

at North State.

       In    mid-March    2003,   after       she   had    exhausted   all   of   her

accumulated leave time, Freeman requested additional leave from the

Bank.       By letter of March 17, 2003, North State advised Freeman

that it would consider her request for additional leave under its

Medical Leave Policy. On March 31, 2003, the Bank notified Freeman

that it had approved her request for additional leave through April

17, 2003, but that she would be expected to return to work on April

21, 2003.       Freeman did not respond to North State’s letter, and

failed to return to work on April 21, 2003.                On April 22, 2003, the

                                          7
Bank notified Freeman in writing that it would treat her failure to

return to work, or to communicate her status, as a voluntary

resignation.

     Shortly after her last day at work, Freeman made a claim for

long-term   disability    benefits   (“LTD”)    with   her   insurer,   Unum

Provident (“Unum”).      On her claim form to Unum, Freeman indicated

that she had been unable to work since January 23, 2003.         According

to medical records Freeman submitted in support of her LTD claim,

the bonus incident caused Freeman significant stress, and Freeman’s

physician opined that she was “totally and completely unable at

this time to perform any type of work, including part-time or

sedentary work.”   J.A 266.    On June 17, 2003, Unum notified Freeman

that she qualified for LTD benefits.           On July 11, 2003, Freeman

also applied for disability benefits with the Social Security

Administration (“SSA”). She was notified on October 12, 2003, that

the SSA found her to be disabled as of January 23, 2003, and

eligible for SSA benefits beginning in July 2003.

                                     B.

     On May 29, 2003, Freeman filed a discrimination charge against

North State concerning her 2002 bonus with the Equal Employment

Opportunity Commission (the “EEOC”).       On September 15, 2003, the

EEOC dismissed Freeman’s charge and notified her that, based upon

its investigation, there was no evidence to establish any violation

of the applicable statutes.          Thereafter, on December 9, 2003,


                                     8
Freeman filed a pro se complaint against North State and several

members of its Board of Directors in the Eastern District of North

Carolina, alleging that she had been the victim of discrimination,

based on her age, race, and sex, in the distribution of the 2002

bonuses.    After   securing   counsel,   Freeman   filed    an   amended

complaint on June 7, 2004, alleging, inter alia, that the Bank had

violated Title VII, as well as 42 U.S.C. § 1981, by awarding

Freeman, its only African-American LAA, a lower bonus than its two

white LAAs, and by terminating Freeman’s employment when she

complained about the disparity in such bonuses.

     On June 28, 2006, after the completion of discovery, North

State filed a motion for summary judgment.      In relevant part, it

maintained that Freeman had not established a prima facie case for

discrimination under Title VII and § 1981, and that, even if she

had, there was no evidence that North State’s explanations for the

differences in its 2002 bonuses were pretextual.            In response,

Freeman maintained that there were genuine issues of material fact

on her claims.   In an order entered February 21, 2007, the district

court granted summary judgment to North State on each of Freeman’s

claims, explaining that she had failed to establish a prima facie

case of race discrimination because receiving a lower discretionary

bonus than similarly situated white coworkers does not constitute

an adverse employment action. See Freeman v. North State Bank, No.

5:03-cv-916-BO (E.D.N.C. Feb. 21, 2007) (the “Order”).         The court


                                  9
also ruled that, even if Freeman had established a prima facie

case, there was no evidence that the explanations given by the Bank

for the 2002 bonus disparities were pretextual.             Id. at 4 n.2.

Freeman has timely appealed, and we possess jurisdiction pursuant

to 28 U.S.C. § 1291.



                                   II.

     As a general proposition, we review de novo a district court’s

award of summary judgment, viewing the facts in the light most

favorable to the non-moving party.         See Lee v. York County Sch.

Div., 484 F.3d 687, 693 (4th Cir. 2007).              An award of summary

judgment    may   be   appropriately    made   only   if   the   pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to summary judgment as a matter of law.        See Fed. R. Civ. P. 56(c).



                                  III.

     On appeal, Freeman contends that the district court erred in

awarding summary judgment to North State.          Specifically, Freeman

asserts that North State contravened Title VII and § 1981 in four

respects:   (1) paying her a lower 2002 bonus, on the basis of race,

than it paid to other LAAs; (2) discharging her in retaliation for

raising concerns about the disparity in bonuses; (3) constructively


                                   10
discharging her; and (4) acting with racial animus against her

throughout her employment.       We assess these contentions in turn.

                                      A.

     First, Freeman contends that the district court erred in

awarding summary judgment to North State on her claim that it had

discriminated against her on the basis of race, in contravention of

Title VII and § 1981, by awarding her a lower bonus in 2002 than it

gave the two white LAAs.          Title VII and § 1981 both prohibit

discrimination   in   the    workplace     on   the   basis   of   race.   The

essential elements of a race discrimination claim are identical

under both statutes.        See Love-Lane v. Martin, 355 F.3d 766, 786

(4th Cir. 2004) (explaining that framework for Title VII claims has

also been applied to § 1981 claims).            To establish a prima facie

case, Freeman must provide direct or circumstantial evidence of

race discrimination.    In this case, Freeman has failed to produce

any direct evidence of race discrimination and, thus, we must

proceed under what is known as the McDonnell Douglas framework.

See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973).

     Under McDonnell Douglas, a plaintiff is obligated to first

establish a prima facie case of discrimination. See Love-Lane, 355

F.3d at 786.   If the plaintiff makes such a showing, the defendant

must respond with evidence that it acted on a legitimate, non-

discriminatory basis.       See id.   Finally, if the defendant does so,

the plaintiff is obliged to present evidence to prove that the


                                      11
defendant’s       articulated     reasons     were    a   pretext      for    unlawful

discrimination.       See id.     “Although the evidentiary burdens shift

back and forth under the McDonnell Douglas framework, the ultimate

burden      of   persuading    the    trier   of     fact    that     the    defendant

intentionally discriminated against the plaintiff remains at all

times with the plaintiff.” Id. (internal quotation marks omitted).

      To establish a prima facie case of discrimination, Freeman was

obligated to prove that (1) she is a member of a protected class,

(2)   she    suffered   an    adverse    employment         action,    (3)    she   was

performing satisfactorily at the time of the adverse employment

action, and (4) similarly situated employees outside the protected

class received more favorable treatment.                  See White v. BFI Waste

Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004).                  In rejecting her

claims,     the   district     court    concluded      that    Freeman       “has   not

demonstrated an adverse employment action by receiving a lower

bonus than her coworkers, and cannot establish a prima facie case

for discrimination.”          Order 4.      The court also ruled that, even

assuming Freeman had established a prima facie case, she had not

offered sufficient evidence to show that the reasons given by North

State for awarding her a lower bonus than the two white LAAs were

pretextual.       Id. at 4 n.2.      Specifically, the court explained that

      [a]ssuming Plaintiff could establish a prima facie case,
      Defendant offered several non-discriminatory reasons for
      the difference between Plaintiff’s bonus and those
      awarded to other workers:    (1) compensating one woman
      with a lower base salary who took on additional
      responsibility; (2) compensating another woman for

                                         12
      handling complex loan portfolios and longer work hours;
      and (3) compensating Plaintiff for supporting one loan
      officer. Plaintiff has not offered sufficient evidence
      to show that these reasons are pretext for intentional
      discrimination.

Id. As a result, the court granted summary judgment to North State

on Freeman’s race-based claim on her 2002 bonus.

      In pursuing her appeal, Freeman asserts that the Bank’s

reasons   were   inconsistent,    and      that   such   inconsistency   is

sufficient evidence of pretext.        See EEOC v. Sears Roebuck & Co.,

243 F.3d 846, 852-53 (4th Cir. 2001) (recognizing that offering

“different justifications at different times . . . is, in and of

itself, probative of pretext”).            She also maintains that her

performance was equal to or better than that of the two white LAAs.

Contrary to Freeman’s contentions, the district court properly

ruled that Freeman failed to show that the reasons given by North

State for the differences in the 2002 bonuses were pretextual.

      Freeman was given an explanation for the differences in the

bonuses on several occasions, and although the Bank’s explanations

may have varied in depth and detail, they were not materially

inconsistent.    When Freeman first met with Temple and Salisbury,

Temple explained that the Bank’s 2002 bonuses were based on the

number of loan officers each LAA supported.          Salisbury added that

he   thought   that   the   bonuses   were   discretionary,    and   Temple

responded that “there’s more to it than that.”           J.A. 171.   Freeman

then met with Temple a second time, and Temple explained that Fly


                                      13
had been given a higher bonus because she had volunteered to

support a third loan officer when Freeman supported only one.

Finally, counsel for the Bank wrote to Freeman, explaining that the

bonuses were completely discretionary, and that the most important

factor in the Board’s decisions to award the other LAAs higher

bonuses was that they supported more loan officers than she did.

The letter reasoned that Fly’s loan portfolio was more complex than

Freeman’s, Fly’s work was “cleaner,” and Fly had volunteered to

take on a third loan officer.        Id. at 257.   As this evidence

demonstrates, Freeman was given several consistent explanations for

her smaller bonus award.

     Freeman also asserts that her performance was equal to or

superior to the two white LAAs, and that she can rebut each of the

reasons provided by the Bank — and accepted by the district court

— to show that it had legitimately awarded her a lower bonus.   The

first and third reasons identified by the court are intertwined:

North State was compensating Fly, who had a lower base salary, for

volunteering to take on extra responsibility, and taking into

account that Freeman was only supporting one loan officer. Freeman

does not contest that Fly supported more loan officers or explain

why the Bank could not legitimately take Fly’s lower salary into

consideration; rather, Freeman contends that she did more work

overall than Fly.   To support this assertion, Freeman points to

several extra duties that she did for the Bank (i.e., attending a

                                14
seminar,   picking   up   flowers,      staffing      the   Bank’s   booth     at   a

business expo, and occasionally providing customer support).                   None

of   these    duties,        however,        were      permanent,     day-to-day

responsibilities, as opposed to the ongoing duty of supporting a

new loan officer. Moreover, it is well-settled that an employer is

free to develop its own criteria for employment decisions, so long

as those criteria are not race-based.               See Beall v. Abbott Labs.,

130 F.3d 614, 619 (4th Cir. 1997) (“It is axiomatic that an

employer is free to set its own performance standards, provided

such standards are not a ‘mask’ for discrimination.” (internal

citations omitted)); see also Jiminez v. Mary Washington College,

57 F.3d 369, 383 (4th Cir. 1995) (“The crucial issue in a Title VII

action is an unlawfully discriminatory motive for a defendant’s

conduct, not the wisdom or folly of its business judgment.”).

Consequently, it was permissible for the Bank to premise its bonus

decisions on the criteria it deemed pertinent, including the number

of loan officers being supported, so long as those criteria were

not race-based.4

     The   second    basis   the   district         court   recognized   for    the

disparity in the 2002 bonuses was that Freeman primarily handled

consumer loans, which were less complex, and Kilmer handled the


     4
      Although Freeman asserts that she did not volunteer to take
on the additional loan officer because two of her supervisors
advised her that she already had enough work, this contention does
not carry the day.      Put simply, those individuals did not
participate in the 2002 bonus decisions.

                                        15
more complicated commercial loans and worked longer hours. Freeman

asserts that this explanation is also pretextual, because the

evidence showed that there is little difference between consumer

and commercial loans in the work required of the LAAs.     Although

there may be a factual dispute on whether commercial loans are more

complex and thus more time consuming, even if Freeman is correct

that commercial loans do not require more work than consumer loans,

she still cannot disprove the primary reason the Bank consistently

gave for the differences in the 2002 bonuses.   That is, Kilmer and

Fly both supported more loan officers than Freeman.     Thus, this

assertion also fails to show that North State’s reasons were

pretextual.

     In explaining a Title VII plaintiff’s burden of proof on the

issue of pretext, the Supreme Court has recognized that

     an employer would be entitled to judgment as a matter of
     law if the record conclusively revealed some other,
     nondiscriminatory reason for the employer’s decision, or
     if the plaintiff created only a weak issue of fact as to
     whether the employer’s reason was untrue and there was
     abundant and uncontroverted independent evidence that no
     discrimination had occurred.

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148

(2000).   Because the district court properly concluded that there

is no issue of material fact on the issue of pretext, Freeman’s

racial discrimination claim must fail, regardless of whether she

can establish a prima facie case of such discrimination.   For this




                                16
reason, we are constrained to affirm the award of summary judgment

to North State on this claim.

                                   B.

      Second, Freeman maintains that the district court erred in

awarding summary judgment to North State on her claim that her

employment was terminated in retaliation for her complaints about

the disparity in the 2002 bonuses, in contravention of Title VII.

To establish a prima facie case for such retaliation, Freeman was

required to show that (1) she engaged in a protected activity, (2)

the Bank took an adverse employment action against her, and (3)

there is a causal connection between the two events.         See EEOC v.

Navy Fed. Credit Union, 424 F.3d 397, 406 (4th Cir. 2005).              We

agree with the district court that Freeman has failed to establish

the third prong of this test:        a causal connection between the

protected activity and the adverse employment action. See Order 5.

Put simply, Freeman has failed to establish a causal link between

her   complaints   about   the   disparity   in   the   bonuses   and   her

subsequent termination.     In fact, when North State terminated her

employment, she had exhausted all of her available leave time, plus

the extra leave that North State had granted her, and still did not

return to work.      As a result, Freeman failed to sufficiently

establish a prima facie case for retaliatory discharge, and we

affirm the award of summary judgment on this claim as well.




                                   17
                                   C.

      Freeman’s   third   claim   on   appeal   is    that   she   presented

sufficient evidence of constructive discharge to survive summary

judgment.   To establish a claim of constructive discharge, Freeman

was obligated to show that North State “deliberately made [her]

working conditions intolerable, and thereby forced [her] to quit.”

James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 378 (4th Cir.

2004) (internal quotation marks omitted).            Mere “dissatisfaction

with work assignments, a feeling of being unfairly criticized, or

difficult or unpleasant working conditions are not so intolerable

as to compel a reasonable person to resign.”           Id.   Freeman claims

she was constructively discharged twice — first on January 23,

2003, when she left work because she was distraught over being paid

a lower bonus than the two white LAAs, and again through North

State’s “parade of threats, intimidation and coercive tactics in

retaliation for making discrimination claims.”           Br. of Appellant

30.   We agree with the district court that Freeman failed to show

that North State made her working conditions so intolerable that

she was forced to quit her job, see Order 6, and thus affirm the

court’s award of summary judgment on her constructive discharge

claim.

                                   D.

      Finally, Freeman claims that North State acted with racial

animus towards her throughout her employment with the Bank.              In


                                   18
making this claim, Freeman relies solely on the fact that she was

paid a lower bonus in 2001 as well as in 2002.   The district court

concluded that “[a]lthough the complaint refers to two bonus

decisions, [Freeman] has only exhausted her administrative remedies

as to one, which is at issue here.”      Order 2 n.1.   Indeed, any

individual wishing to challenge an employment practice under Title

VII must file a charge with the EEOC within 180 days “after the

alleged unlawful employment practice occurred.” 42 U.S.C. § 2000e-

5(e)(1).   If the employee fails to submit a timely EEOC charge, she

may not challenge the alleged unlawful practice in court.       See

Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162, 2168

(2007) (“A discriminatory act which is not made the basis for a

timely charge . . . is merely an unfortunate event in history which

has no present legal consequences.” (internal quotation marks

omitted)).   We agree with the court on this contention as well.

Freeman has never filed an EEOC charge regarding her 2001 bonus

and, thus, any claims relating to it are barred.



                                IV.

     Pursuant to the foregoing, we reject Freeman’s contentions of

error and affirm the district court.

                                                           AFFIRMED




                                 19
