Lee v. Astrue , 424 F. App'x 262 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1469
BYRON J. LEE,
Plaintiff – Appellant,
v.
MICHAEL J. ASTRUE, Commissioner, Social Security
Administration,
Defendant – Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:09-cv-00997-CCB)
Submitted: April 14, 2011 Decided: April 22, 2011
Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas B. Corbin, THOMAS B. CORBIN, P.A., Baltimore, Maryland,
for Appellant. Rod J. Rosenstein, United States Attorney, Neil
R. White, Assistant United States Attorney, Greenbelt, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Byron J. Lee appeals the district court’s judgment in
Defendant’s favor on his race and gender discrimination and
retaliation claims, brought pursuant to Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C.A. §§ 2000e to 2000e-17
(West 2003 & Supp. 2010). Lee asserts that the district court
erred in granting Defendant’s summary judgment motion on his
retaliatory denial of a within-grade pay increase and
termination claims because: (i) his supervisor admitted in his
deposition that, in deciding to terminate Lee’s employment,
Defendant relied on Lee’s failure to properly complete
assignments that were not included in its proposal to remove Lee
from federal service; and (ii) he disputes his supervisors’
critique of his performance and asserts that the standards
relied upon by Defendant were “impermissibly vague.” * We have
reviewed the district court’s grant of summary judgment de novo,
*
To the extent that Lee challenges the district court’s
dismissal of his retaliation claim based on Defendant’s December
2006 failure to promote him to a GS-13 position, we hold that
the district court correctly determined that Lee failed to
establish a prima facie case of retaliation based on the
non-selection because the twenty-one-month delay between Lee’s
March 2005 complaint and his non-selection negated any causal
connection between the two events. See Dowe v. Total Action
Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir.
1998) (“A lengthy time lapse between the employer becoming aware
of the protected activity and the alleged adverse employment
action . . . negates any inference that a causal connection
exists between the two.”).
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viewing the facts and the reasonable inferences therefrom in the
light most favorable to Lee, see Robinson v. Clipse, 602 F.3d
605, 607 (4th Cir. 2010), and affirm the district court’s
judgment.
We hold that the district court correctly determined
that “the fact that there was additional unsatisfactory work on
which [Lee’s supervisor] based his termination proposal does not
demonstrate that [Defendant] acted adversely against Mr. Lee
because of any factor other than his poor work performance.” As
the district court correctly noted, it was not incumbent on
Lee’s supervisors to describe every instance of Lee’s
underperformance in its proposal to remove him from federal
service. Cf. Rana v. United States, 812 F.2d 887, 889 (4th Cir.
1987) (rejecting plaintiff’s claim that government’s case was a
“moving target” and finding that trial court’s finding of “no
pretext” was not clearly erroneous, because even though
testimony that plaintiff’s work was “vague” and “imprecise” did
not literally appear in notice of removal, the notice “contained
specific instances of unacceptable performance as well as
general conclusions that his effort was perceived to be below
the standard for a high-level economist”). In any event, Lee
provides no evidence that any of the other assignments to which
his supervisor pointed as problematic met Defendant’s standards
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of performance any better than the five assignments that were
described in the notice of proposed removal.
Although Lee also asserts that his work performance
did not warrant discipline and that the standards used to
evaluate his performance were suspect, we find that the district
court correctly noted that it was Lee’s supervisors’ perception
of his work performance that was relevant to its analysis,
rather than Lee’s self-assessment of his performance. See Evans
v. Tech. Apps. & Serv. Co., 80 F.3d 954, 960-61 (4th Cir. 1996)
(“It is the perception of the decision maker which is relevant,
not the self-assessment of the plaintiff.”) (internal quotation
marks and citation omitted). In the absence of evidence
establishing a retaliatory motive, we will not second guess an
employer’s decision to discipline an employee. See Jiminez v.
Mary Washington Coll., 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.”).
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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