Prince Johnson v. Thomas Perez ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 8, 2016 Decided May 20, 2016
No. 15-5034
PRINCE JOHNSON,
APPELLANT
v.
THOMAS E. PEREZ, SECRETARY, DEPARTMENT OF LABOR,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cv-01832)
Rani Rolston argued the cause for appellant. On the brief
was Alan Lescht.
Damon W. Taaffe, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Vincent H.
Cohen, Jr., Acting U.S. Attorney, and R. Craig Lawrence,
Assistant U.S. Attorney.
Before: TATEL and PILLARD, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge PILLARD.
2
PILLARD, Circuit Judge: Prince Johnson, an African
American temporary employee of the U.S. Department of
Labor, sued the Department, claiming that it dismissed him
from his position as a Veterans Employment Specialist
because of his race in violation of Title VII. The district court
saw grounds to doubt the Department’s stated justifications
for Johnson’s dismissal, but granted summary judgment to the
Department for want of evidence of racial discrimination. We
affirm on the slightly different ground that, on the evidentiary
record, no reasonable juror could find that the Department’s
stated, nondiscriminatory reasons for dismissing Johnson
were not its real reasons.
I.
In April 2006, the Department of Labor hired Johnson as
a Veterans Employment Specialist within the Veterans
Employment and Training Services (VETS) division.1 The
Director of Operations and Programs, Gordon Burke,
recruited Johnson, a former Army Captain, and hired him into
a noncompetitive position for qualified veterans with service-
related disabilities. See 5 U.S.C. § 3112; 5 C.F.R. §
316.402(b)(4). The post was a temporary one with a
possibility of permanent employment. 5 U.S.C. § 3112; 5
C.F.R. § 316.402(b)(4). Pamela Langley, the Division Chief
of the Employment and Training Programs Division within
VETS, also interviewed Johnson and reviewed his
application. Langley then became Johnson’s direct
1
The statement of facts is taken from the record evidence submitted
in support of the parties’ summary judgment briefing. Some of the
facts reported here are disputed, but our obligation at the summary
judgment stage is to view all facts in the light most favorable to the
nonmoving party, here the plaintiff. Facts unfavorable to him that
are included are those that Johnson has not factually controverted.
3
supervisor. Director Burke, like Johnson, is African
American, and Division Chief Langley is white.
Johnson’s career at VETS was short lived. He held the
position on a temporary basis, with an extension, for
approximately six months before Director Burke terminated
his appointment. To Johnson, the new job was a frustrating
disappointment. Johnson testified at his deposition that he
had assumed he would be given adequate time and training to
learn the skills the position required; instead, he felt, he was
“set up to fail.” J.A. 192. His supervisors struck him as
unfriendly and unreceptive. Johnson’s coworkers told a
similar story: They told Johnson or averred in connection
with discovery in this case that they observed supervisors talk
down to Johnson, yell at him, and call him “stupid” or
“useless.” J.A. 293, 298. One co-worker found Division
Chief Langley “demeaning” in her interactions with Johnson,
J.A. 45, another described a general attitude of disrespect
toward minority employees within the office, and another
observed instances in which Langley or Patrick Hecker, the
VETS “Jobs for Veterans” State Grants Lead and a white
male, yelled at Johnson.
Johnson’s primary responsibility was to assist Hecker to
create and update spreadsheets tracking information in the
“Jobs for Veterans” grants program that VETS administered.
He also worked with Ed Davin, a Performance Specialist on
contract to VETS. Burke, Langley, Hecker, and Davin all
perceived Johnson as struggling to complete the tasks
assigned to him. According to their accounts, they clarified
what was expected, identified specific deficiencies, and
explained how he could correct them. They authorized
Johnson to spend some time at a VETS State Local Office in
Maryland to learn more about how the program worked in
practice, and they arranged for VETS to sponsor Johnson for
4
training to upgrade his relevant skills. In the face of some
disagreement from Johnson about which courses would be
most appropriate, the supervisors authorized him to take an
Excel training course and sent him to a training conference in
Chicago.
Despite what management characterized as efforts to
make Johnson’s employment work out, in October 2006,
Division Chief Langley recommended to Director Burke that
Johnson’s probationary appointment be terminated. As
Langley recounts the situation, her own observations of
Johnson’s work and the reports of his direct supervisors
persuaded her that he should not remain in the position.
Langley notified Johnson that she was going to recommend
termination of his employment at VETS for failure to perform
satisfactorily and for his “unacceptable attitude” when
advised of errors in his work product. J.A. 221. Burke agreed
with Langley’s recommendation. He recounted that he
terminated Johnson “based on [his] own dissatisfaction with
[Johnson’s] argumentative demeanor and his reported lack of
performance and argumentative character.” J.A. 207. In the
Termination Memorandum Burke issued to Johnson, he
outlined the requirements of Johnson’s position and then
listed the ways in which Johnson’s performance had been
deficient: He had “not completed satisfactorily” the projects
he had been assigned and had shown an “argumentative
response and demeanor” when confronted with his poor work.
J.A. 473.
After exhausting his administrative remedies, Johnson
brought suit in district court, alleging that he was subjected to
a hostile work environment based on his race, and that his
termination was racially discriminatory in violation of Title
VII. Following discovery, the district court granted summary
judgment to the government on both claims. Johnson v.
5
Perez, 66 F. Supp. 3d 30, 45-46 (D.D.C. 2014). The
Department moved this court for summary affirmance. The
court granted the Department’s motion in part, affirming
judgment on the hostile work environment claim on the
ground that, as a matter of law, the incidents Johnson
identified in support of that claim “were not ‘sufficiently
severe or pervasive to alter the conditions of the victim's
employment and create an abusive working environment.’”
Johnson v. Perez, No. 15-5034, 2015 WL 5210265 (D.C. Cir.
July 1, 2015) (per curiam) (quoting Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993)). The panel denied summary
affirmance as to the discriminatory discharge claim, id.,
which was then calendared for full briefing and argument to
this panel.
II.
We review a district court’s grant of summary judgment
de novo. Calhoun v. Johnson, 632 F.3d 1259, 1261 (D.C. Cir.
2011). By the time a party files a summary judgment motion,
all parties should have had the opportunity to investigate the
case thoroughly and should have done so. In making or
opposing a summary judgment motion, a party may no longer
rely on the hope of new testimony or additional documents
other than what it put before the court. Each party’s hand is
dealt. The task of the court is to review the factual material
the parties present in support of and opposition to the motion,
in light of the parties’ legal claims and defenses, and assess
whether the record contains disputes calling for resolution by
a factfinder. In considering a motion for summary judgment,
the court views the evidence in the light most favorable to the
nonmoving party (here, Johnson) and draws all reasonable
inferences in his favor. Id. The court may not make
credibility determinations or otherwise weigh the evidence.
Id. The court may not, for example, believe one witness over
6
another if both witnesses observed the same event in
materially different ways. But if one party presents relevant
evidence that another party does not call into question
factually, the court must accept the uncontroverted fact.
Summary judgment is appropriate only if “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a). That can be the case when, for example, the parties
agree about the facts—what happened—and the court accepts
the movant’s view of the legal implications of those facts, or,
as in this case, when a putatively disputed body of evidentiary
material could not, even assuming a sympathetic factfinder,
reasonably support a finding crucial to the nonmoving party’s
legal position. A dispute about a material fact is “‘genuine’ . .
. if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). In that circumstance, the
summary judgment motion must be denied. Id. A moving
party is entitled to judgment, however, if the nonmoving party
“fails to make a showing sufficient to establish the existence
of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
Title VII prohibits federal agencies from discriminating
against their employees on the basis of race, color, religion,
sex, or national origin. 42 U.S.C. § 2000e-16(a). Federal
employees’ Title VII claims, although authorized by a
separate statutory section, are analyzed in the same way as
Title VII claims against private employers. See, e.g., Borgo v.
Goldin, 204 F.3d 251, 255 n.5 (D.C. Cir. 2000). Under the
burden-shifting framework of McDonnell Douglas, a Title VII
plaintiff seeking to prove disparate treatment through indirect,
circumstantial evidence “must first establish a prima facie
7
case of prohibited discrimination.” Aka v. Wash. Hosp. Ctr.,
156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc); see
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). Once the plaintiff has done so, the burden then shifts
to the defendant to “articulate legitimate, nondiscriminatory
reasons for the challenged employment decision.” Aka, 156
F.3d at 1288.
The Department’s position is that it terminated Johnson
because his performance was deficient and his demeanor was
argumentative in response to supervisor feedback. At
summary judgment, when an employer has offered a
legitimate, non-discriminatory reason for the challenged
termination, as the Department has done in this case, the
court’s inquiry turns to “one central question: Has the
employee produced sufficient evidence for a reasonable jury
to find that the employer’s asserted non-discriminatory reason
was not the actual reason and that the employer intentionally
discriminated against the employee on the basis of race, color,
religion, sex, or national origin?” Brady v. Office of the
Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). In the
posture in which this case comes to us, our focus is on
whether a jury, looking at the record evidence and drawing all
inferences in Johnson’s favor, could conclude that Johnson’s
race was “a motivating factor” for the discharge. 42 U.S.C. §
2000e-2(m).
Johnson has failed to identify record evidence from
which a reasonable jury could conclude that race played a role
in his discharge. Had Johnson been able to show that Burke
gave conflicting justifications for his recommendation, or that
the reasons he gave were not credible based on the underlying
facts of Johnson’s job performance, Johnson might have
raised a material factual dispute. For example, evidence that
similarly-situated, non-black employees with comparable
8
performance deficits were not fired was what sufficed in
Wheeler v. Georgetown University Hospital, 812 F.3d 1109,
1115 (D.C. Cir. 2016), to create a triable factual dispute about
the employer’s assertedly nondiscriminatory reliance on
plaintiff’s poor job performance. In Ridout v. JBS USA, LLC,
716 F.3d 1079, 1084 (8th Cir. 2013), plaintiff’s evidence that
he was meeting his employer’s expectations up to the time of
termination, and that the employer’s response to his alleged
insubordination was unduly harsh when measured under the
employer’s own general policy and practice of responding to
such problems, sufficed to create material factual disputes
about the employer’s invocation of performance and behavior
problems. And in the case perhaps most akin to this one,
White v. Baxter Healthcare Corp., 533 F.3d 381, 394-95 (6th
Cir. 2008), evidence that plaintiff’s educational and
experiential qualifications were superior to those of the
candidate offered the promotion plaintiff sought provided
context for the employer’s reliance on an “inherently
subjective determination” of applicant’s “aggressive”
interview demeanor—a factor “easily susceptible to
manipulation”—and sufficed to create a material factual
dispute whether the employer’s assertions were a pretext for
racial discrimination. This record, however, does not present
evidence from which a reasonable jury could find either that
Johnson’s job performance was better than the Department
claims, or that his supervisors’ stated concerns about
Johnson’s unresponsiveness to constructive criticism are
unworthy of credence.
The Termination Memorandum Burke issued to Johnson
explained that he recommended dismissal because Johnson
had failed to “[m]aintain accountability over projects
commensurate with [his] level of responsibility,” had been
unable “to accomplish routine tasks on a reoccurring [sic]
basis under [his] own initiative,” and had not “[i]nterface[d]
9
positively with fellow staff members and [his] supervisor.”
J.A. 473. Burke gave no conflicting justifications for his
decision. In ensuing explanations, Burke sometimes
emphasized one reason more than the others, but he gave no
contrary account of Johnson’s job performance, nor any other,
conflicting reason.
All of the record evidence memorializing Burke’s
justifications for terminating Johnson is consistent. The
record of Burke’s interview with an Equal Employment
Opportunity Counselor, Burke’s affidavits of April 2007 and
August 2007, and Burke’s July 2012 deposition reflect a
decision based on Johnson’s failure to do the job proficiently
and his resistance to feedback when his supervisors tried to
work with him to improve. In an interview with an Equal
Employment Opportunity Counselor, Burke explained that
“Johnson [could not] do the work.” J.A. 482. In an affidavit
dating from April 2007, Burke explained both that Johnson
had been unable to complete the assigned work and that
Burke had been dissatisfied with Johnson’s demeanor. In an
August 2007 affidavit, Burke again noted Johnson’s
argumentative and disruptive behavior with supervisors.
Finally, in his July 2012 deposition, Burke explained,
“Johnson was terminated because he could not perform the
requirements of the job position and because of his inability to
get along with peers and superiors characterized by an
argumentative demeanor.” J.A. 98.
Johnson attempts to show contradiction by pointing to the
Department’s answer to Johnson’s complaint, which admitted
that “Mr. Burke stated that he terminated Mr. Johnson to
support the supervisor and because Mr. Johnson could not
perform the work,” but denied that those statements were
conflicting. J.A. 27. Johnson sees a conflict between Burke’s
two bases but, as the district court noted, “it stands to reason
10
that a part of Burke’s support for Johnson’s supervisor
(Langley) might very well be support for her assessment that
Johnson was unable to do the work required for his position in
a timely fashion and without errors.” Johnson, 66 F. Supp. 3d
at 39. There is no contradiction between acting in support of
another manager’s assessment of an employee under her
supervision and acting based on the factual accuracy of that
assessment.
Nor is there any evidence calling into question the factual
basis for Burke’s conclusion that Johnson’s job performance
was inadequate. Johnson attempts to show that he performed
well at his job and that he did not have an argumentative
demeanor. Neither attempt to call Burke’s justifications into
question raises a genuine issue of material fact.
First, although there is record evidence that Johnson
performed well in some areas, there is no evidence
contradicting Burke’s conclusion that Johnson could not
perform his assigned tasks at the level expected of someone in
his role. Johnson’s evidence consists of (1) statements of his
non-supervisory colleagues, Angela Freeman and Loretta
Alston; and (2) an affidavit of team leader Hecker. None of
those witnesses’ accounts raises a material factual dispute
about Burke’s justifications.
The accounts of Johnson’s colleagues, Freeman and
Alston, fail materially to dispute Burke’s justifications.
Angela Freeman, a Management Analyst and the leader of a
team that worked with Johnson’s, averred, “Given my grade I
was never in the position to assign Mr. Johnson work,
however as [stated] above he and I often teamed up [to]
complete various projects within the agency. The instances in
which Mr. Johnson assisted me with the completion of a
project I observed his work to [be] excellent and extremely
11
timely in manner.” J.A. 298. Because Freeman never
supervised or even saw the work that Johnson did on his own,
her statements cannot call into question Burke’s conclusion
that Johnson was not sufficiently accurate, timely, and
accountable for his assigned tasks.
Loretta Alston, also a Management Analyst and another
of Johnson’s co-workers, testified “I don’t know” how well
Johnson did his job. J.A. 35. But she said that when Johnson
showed her “how to do the spreadsheets” he “was very
competent.” J.A. 36. Like Freeman, Alston was not in a
position to judge how quickly or accurately Johnson
performed on the tasks that the program’s management
assigned to him. That Johnson appeared competent to Alston
while he trained her does not call into question Burke’s
conclusion that Johnson persistently failed, in Burke’s own
view and that of Johnson’s other supervisors, to complete his
work without error or delay.
Finally, the affidavit of team leader Hecker, with whom
Johnson was assigned to work directly, supports Burke’s
conclusions without contradiction. Hecker noted that Johnson
“worked well when assigned to coordinate and interact with
others to complete an assignment.” J.A. 231. “[H]owever,”
Hecker stated, “the majority of the work was individual work
and involved information or data which had to be entered into
spreadsheets or other automated and internet based systems. .
. . Often the spreadsheets that [Johnson] created or modified
contained easily identified errors when reviewed.” Id.
Hecker also noted Johnson’s failure to complete projects on
deadline, id. at 231-32, and his lack of the “knowledge or
organizational skills required of the position,” id. at 231.
Hecker’s affidavit is fully consistent with Burke’s conclusion
that Johnson was unable to complete his work on his own.
12
Nor has Johnson presented any evidence calling into
question Burke’s conclusion that Johnson was argumentative
in his interactions with his supervisors. The accounts of
Johnson’s supervisors support Burke’s conclusion. Hecker,
who had a quasi-supervisory relationship to Johnson, averred
that when he tried to bring Johnson’s “marginal work” to his
attention, Johnson “would become defensive.” J.A. 232.
Johnson’s first-line supervisor, Langley, also found Johnson
argumentative. Langley testified: “It seemed to me that at
times he was argumentative, particularly when I requested
that he change something or . . . when I identified that there
was a deficiency in what he had provided me, he would
become argumentative in responding . . . . So in that way he
was argumentative. He didn’t seem to accept criticism of his
work, constructive criticism of his work.” J.A. 124-25.
That Burke in the internal EEO process described
Johnson as a “good guy” who got along well with his
colleagues, J.A. 482, does not contradict Burke’s conclusion
that Johnson dealt poorly with criticism of his work and
responded defensively and argumentatively. In Burke’s own
interactions with Johnson, Burke recounted, Johnson “was
argumentative with [him] on three occasions where [Johnson]
was actually in [Burke’s] office to discuss performance.” J.A.
99.
Critically, the evidence Johnson puts forward in an effort
to call into question Burke’s justification comes from
colleagues who provide no reason to believe that they were
Johnson’s supervisors, were in a position to assess his work
product, or had firsthand experience trying to give Johnson
feedback on his work. Johnson’s colleagues Alston, Jenel
Turner, and Linda Chambers all averred that they never saw
Johnson being argumentative at work. But Burke did not
terminate Johnson on the ground that Johnson was generally
13
argumentative in the office or failed to get along with his
office peers; there is no dispute that Johnson was affable and
agreeable to his peers at work. See, e.g., J.A. 482. Rather,
Burke’s justification was the compound difficulty that
Johnson’s work was deficient and that he reacted with an
“argumentative response and demeanor” when supervisors
sought to address his work deficiencies. J.A. 473. The
accounts of his colleagues, who did not interact with Johnson
in a supervisory relationship or purport to have observed such
interactions, do not address the quality of his work and do not
suffice to controvert the testimony of his supervisors so as to
create a genuine factual dispute whether Johnson was
argumentative and defensive when confronted with feedback.
In sum, Johnson has not presented evidence from which a
reasonable jury could conclude that the nondiscriminatory
reasons Burke gave for terminating Johnson’s employment
were not his real reasons. The record evidence does not show
that Burke gave conflicting justifications or that Burke’s
justifications were unsupported by the underlying facts of
Johnson’s employment. Johnson rests his case on a pretext
theory and has not identified other types of evidence—such as
direct evidence, evidence of similarly-situated employees who
were treated better than he was, or other forms of
circumstantial evidence—tending to show that race was a
motivating factor.
Because the record could not support a finding that the
Department’s justifications for terminating Johnson were
pretext, the Department is entitled to summary judgment.
III.
Finally, we offer brief clarification on three points of
potential confusion. First, it is somewhat unusual for a court
to find—as the district court did here—that there is a triable
14
issue as to pretext, but no triable issue as to discrimination.
The district court found that there was “arguably a genuine
dispute of fact about Plaintiff’s job performance and
workplace demeanor and, thus, whether Defendant’s
proffered reasons for terminating Johnson were pretextual.”
Johnson, 66 F. Supp. 3d at 41. The court nonetheless granted
summary judgment to the Department on the ground that
Johnson had not introduced evidence that the employer’s
potentially pretextual reasons were a mask for racial
discrimination. Id. To be sure, some summary judgment
records—including, in the district court’s view, this one—
would permit a jury to find that an employer’s reasons are
false, yet could not support a reasonable inference of
discrimination. See generally St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 508-09 (1993) (sustaining determination that
defendants’ proffered reasons were not the real reasons for the
challenged demotion and discharge, but that plaintiff failed to
show racial motivation). The legal permissibility of such a
disposition, however, should not be taken to suggest that a
successful showing of pretext, without more, is necessarily
inadequate to support an inference of unlawful racial
discrimination. “In an appropriate case, ‘[t]he factfinder’s
disbelief of the reasons put forward by the defendant’ will
allow it to infer intentional discrimination.” Aka, 156 F.3d at
1294 (quoting St. Mary’s Honor Ctr., 509 U.S. at 511). In
such a case, “[n]o additional proof of discrimination is
required.” St. Mary’s Honor Ctr., 509 U.S. at 511 (quoting
Hicks v. St. Mary’s Honor Ctr., 970 F.2d 487, 493 (8th Cir.
1992)) (internal quotation marks and emphasis omitted).
Neither the district court’s opinion nor ours should be read to
suggest otherwise.
Second, in the course of explaining that Johnson had
failed to show that Burke’s proffered reasons for firing
Johnson were contradictory, the district court noted that
15
Johnson’s only evidence was his own testimony that Burke
had originally claimed he was firing Johnson to support
Langley. In addition to rejecting that testimony for the reason
we cited above—it failed to show any inconsistency—the
court stated that “[s]uch self-serving testimony is insufficient
to create a genuine issue of material fact regarding whether an
employer’s proffered reason for termination was pretextual.”
Johnson, 66 F. Supp. 3d at 39. Relying on earlier district
court opinions, the district judge stated that “[s]elf-serving
testimony does not create genuine issues of material fact,
especially where that very testimony suggests that
corroborating evidence should be readily available [but is
absent].” Johnson, 66 F. Supp. 3d at 39. But as we have
explained since the earlier district court decisions, “there is no
rule of law that the testimony of a discrimination plaintiff,
standing alone, can never make out a case of discrimination
that could withstand a summary judgment motion.” Desmond
v. Mukasey, 530 F.3d 944, 964 (D.C. Cir. 2008) (quoting
George v. Leavitt, 407 F.3d 405, 414 (D.C. Cir. 2005))
(internal quotation marks omitted). After all, evidence a party
proffers in support of its cause will usually, in some sense, be
“self-serving.” It is nonetheless beyond question as a general
proposition that parties, like other fact witnesses, are legally
competent to give material testimony. Indeed, in many kinds
of cases, parties are the key, or even sole, witnesses. To the
extent the testimony of a witness who is also a party may be
impaired by party self-interest, it is ordinarily the role of the
jury—not the court on summary judgment—to discount it
accordingly. See, e.g., George, 407 F.3d at 413-14.
Third, the district court reasoned that “unsubstantiated
co-worker testimony alone is generally insufficient to raise a
question of material fact regarding pretext at the summary
judgment stage.” Johnson, 66 F. Supp. 3d at 42. But the co-
workers’ accounts that Johnson offered to show that he was
16
treated more harshly than white employees were insufficient
not because they were the unsubstantiated testimony of co-
workers, but because their statements either were too general
to controvert the employer’s particular concerns about
Johnson’s job performance or spoke to aspects of Johnson’s
work other than what the supervisors identified as deficient,
or both. Courts may grant summary judgment to a defendant
where a plaintiff’s evidence is vague or conclusory. See, e.g.,
Ransom v. Ctr. for Nonprofit Advancement, 514 F. Supp. 2d
18, 27 (D.D.C. 2007) (rejecting on summary judgment
plaintiff’s “vague and conclusory” allegation of
discrimination); Chung v. Wash. Metro. Area Transit Auth.,
No. 04-0366, 2007 WL 1154084, at *3 (D.D.C. Apr. 18,
2007) (concluding affidavits too vague to be probative), aff’d,
268 F. App’x 6 (D.C. Cir. 2008); Carter v. Rubin, 14 F. Supp.
2d 22, 42 (D.D.C. 1998) (concluding deposition testimony
and affidavits lacked requisite specificity). But determining
whether a co-worker’s specific and relevant, if
uncorroborated, testimony is trustworthy is a credibility
determination reserved for the jury.
***
For the foregoing reasons we affirm the decision of the
district court.
So ordered.