Johnson v. Perez ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
PRINCE JOHNSON, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-cv-1832 (KBJ)
)
THOMAS E. PEREZ, SECRETARY, )
U.S. Department of Labor )
)
Defendant. )
)
MEMORANDUM OPINION
Plaintiff Prince Johnson is an African-American man who was employed for
approximately seven months—from April 2, 2006, until November 11, 2006—as a
Veterans Employment Specialist in the Veterans Employment and Training Services
(“VETS”) division of the Department of Labor (“DOL” or “Defendant”) before his
employment was terminated. 1 Johnson has brought the instant action against DOL,
alleging two counts of employment discrimination in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17. In the first count of his complaint,
Johnson alleges that his termination was due to his race. In the second count, Johnson
alleges that he was subjected to a hostile work environment on account of his race
during the course of his employment.
Before this Court at present is Defendant’s Motion for Summary Judgment on
both counts. (Def.’s Mot. for Summ. J., ECF No. 14 at 1-2.) In that motion, Defendant
1
According to its website, VETS “serves America's veterans and separating service members by
preparing them for meaningful careers, providing employment resources and expertise, and protecting
their employment rights.” See http://www.dol.gov/vets/ (last visited Sept. 2, 2014).
1
maintains that the undisputed record evidence demonstrates that Johnson was
terminated for legitimate, non-discriminatory reasons, and that Johnson has failed to
produce sufficient evidence to establish that he was subjected to a hostile work
environment. Because this Court concludes that there is no genuine issue of material
fact as to whether Johnson experienced race discrimination or was subjected to a hostile
work environment, and that Defendant is entitled to judgment as a matter of law, it will
GRANT Defendant’s motion as to both of Johnson’s claims. A separate order
consistent with this Opinion will follow.
I. BACKGROUND
A. Factual Background
Johnson’s tenure at VETS was brief, and the undisputed material facts
underlying his lawsuit are equally so. Johnson was initially hired as a Veteran’s
Employment Specialist within VETS in April of 2006. (Suppl. Decl. of Complainant
Prince Johnson (“Pl.’s Suppl. Decl.”), Ex. 1 to Pl.’s Opp’n to Def.’s Mot. for Summ. J.,
ECF No. 16-1 at 2-11, ¶¶ 4, 6; see also Def.’s Statement of Undisputed Material Facts
(“D-SOF”), ECF No. 14 at 3-9, ¶ 6.) 2 Johnson’s initial appointment was a temporary
Veterans Readjustment Appointment (“VRA”) scheduled to last for 60 days with the
possibility of an extension or conversion to a career conditional appointment. (See Pl.’s
Suppl. Decl. ¶ 6; see also D-SOF ¶ 6.)
Gordon Burke, an African-American man who was VETS’s Director of
Operations at the time, was the agency official responsible for hiring Johnson. (D-SOF
¶ 2.) Prior to his hiring, Johnson interviewed with both Burke and Pamela Langley, a
2
Page numbers throughout this Opinion refer to the page numbers generated by the Court’s electronic
filing system.
2
Caucasian female who served as Johnson’s first-line supervisor during his employment
with VETS. (Id. ¶ 4.) At the interview, Langley informed Johnson that his primary
responsibility would be to assist Langley’s subordinate, Patrick Hecker, with
developing and maintaining Excel spreadsheets related to VETS’s “Jobs for Veterans”
program. (Id. ¶ 5.) After the interview, Langley told Burke that, based on Johnson’s
resume, she believed that Johnson had enough experience to be able to perform the
tasks required for the position successfully. (Id. ¶ 4.) Shortly thereafter, Burke hired
Johnson. (Id. ¶ 6.)
Johnson’s relationship with his new supervisors got off to a rocky start. A few
weeks into Johnson’s tenure, Hecker, who is a Caucasian man, reported to Langley that
Johnson was having difficulty completing his assignments on time and without errors,
and that Johnson had reacted defensively when Hecker tried to discuss these
performance issues with him. (Id. ¶ 7.) Langley then raised concerns about Johnson’s
work in a meeting with Burke, and recommended that Johnson receive Excel and other
general training. (Id. ¶ 9.) In May of 2006, Johnson also met with Burke and told
Burke that Johnson was not getting appropriate support from Hecker and Langley and,
consequently, felt like he was being “set up to fail.” (Id. ¶ 10; see Pl.’s Suppl. Decl.
¶ 65.) Burke then convened a meeting with Johnson, Hecker, and Langley to discuss
reported issues with Johnson’s performance. (D-SOF ¶ 11; Pl.’s Suppl. Decl. ¶ 31.) At
the meeting, Burke directed Johnson to undertake the training activities Langley
recommended, including a basic-level course in Excel, and Johnson eventually did so.
(D-SOF ¶¶ 11, 15; Pl.’s Suppl. Decl. ¶¶ 31-32.)
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Notwithstanding Johnson’s additional training, his professional relationship with
Hecker and Langley continued to deteriorate. At one point, Langley returned from
leave to find that on June 30, 2006, in Langley’s absence, Burke had authorized the
conversion of Johnson’s temporary appointment to a career conditional appointment
when Burke signed paperwork that he believed was urgently necessary for Johnson to
receive his next paycheck. (D-SOF ¶¶ 16-18; see also Pl.’s Suppl. Decl. ¶ 7.) Langley
subsequently spoke to Burke and recommended that Johnson’s appointment remain
temporary because of ongoing performance issues. (D-SOF ¶ 18.) Burke then
contacted the human resource office and requested that the office cancel Johnson’s
conversion to career conditional status. (Id. ¶ 19.)
Although Hecker, Langley, and Johnson met several times between July and
October of 2006 to discuss Johnson’s performance and his “argumentative demeanor[,]”
(Id. ¶ 22; see Pl.’s Suppl. Decl. ¶ 61), these sessions apparently did not mitigate the
problems, and on October 6, 2006, Langley informed Johnson that she would be
recommending to Burke that Johnson be terminated. (D-SOF ¶ 23; Pl.’s Suppl. Decl.
¶ 33.) On October 10, 2006, Johnson received a letter from Burke notifying him of
Burke’s decision to terminate Johnson’s employment, effective November 11, 2006.
(D-SOF ¶ 25.)
B. Procedural History
After exhausting his administrative remedies, Johnson filed the instant complaint
in this Court on October 17, 2011, alleging that Defendant violated Title VII with
respect to both Johnson’s termination and to the conditions of Johnson’s employment.
4
(Compl., ECF No. 1, ¶¶ 74-75, 77.) 3 The complaint alleges that Johnson’s termination
was the result of discrimination based on his race (Count I), and also that Johnson was
subjected to a hostile work environment because of his race while employed at VETS
(Count II). (Id.)
In the instant motion for summary judgment, which was filed on December 11,
2012, Defendant contends that judgment should be granted in its favor on both counts.
Defendant argues that Count I cannot withstand summary judgment because DOL has
articulated legitimate, nondiscriminatory explanations for Johnson’s termination—
namely Johnson’s poor work performance and argumentative demeanor—and Johnson
has failed to show that this explanation was merely pretext for race discrimination.
Count II must also fall, Defendant claims, because the record evidence is insufficient to
support Johnson’s claim that he faced a hostile work environment while employed at
VETS. In response, Johnson asserts that he has identified evidence sufficient to create
a triable issue of fact regarding whether Defendant’s legitimate, nondiscriminatory
explanations were a pretext for race discrimination, and that the record evidence shows
that Johnson experienced working conditions that were sufficiently severe and
pervasive to constitute a hostile work environment.
This Court has reviewed the entirety of the record, and has concluded that
Johnson has failed to raise a question of material fact as to whether DOL’s proffered
reasons for Johnson’s termination were a pretext for race discrimination. Johnson
3
Defendant does not dispute that Johnson properly exhausted his administrative remedies, including
participating in counseling, filing an EEOC charge, and receiving notice of his right to sue. (Compare
Compl. at 2, ¶ 1 (stating that “Johnson filed an EEOC complaint and properly exhausted his
administrative remedies”), with Answer, ECF No. 7, 1 (admitting same); see also EEO Counselor’s
Summ. Report, Ex. 18 to Pl.’s Opp’n to Def.’s Mot. for Summ. J., ECF No. 16-3 at 28-30 (describing
EEO counseling).)
5
offers no evidence that racial animus was at the root of the allegedly discriminatory
treatment, and especially in light of the fact that Johnson was hired and fired by the
same persons—one of whom was African American—Johnson has failed to produce
facts from which a reasonable jury could infer that his superiors’ actions were because
of race. The Court further concludes that Johnson has failed to support his hostile work
environment claim because the acts on which Johnson bases his claim are not
sufficiently severe and pervasive to meet the high standard for such claims. Thus, as
explained further below, this Court will enter summary judgment in favor of Defendant
on both counts.
II. LEGAL STANDARD
The Court must grant summary judgment if the moving party demonstrates that
there is no genuine dispute as to any material fact and that the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a). “A fact is material if it ‘might
affect the outcome of the suit under the governing law,’ and 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.’” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
Under Rule 56, the moving party has the burden of demonstrating the absence of
a genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). Once the moving party has met this burden, the non-moving party must
designate “specific facts showing that there is a genuine issue for trial.” Id. at 324(quoting Fed. R. Civ. P. 56(e)). Although the Court must view the evidence in the light
most favorable to the non-moving party and draw all reasonable inference in that
6
party’s favor, see, e.g., Grosdidier v. Broad. Bd. of Governors, Chairman, 709 F.3d 19,
23 (D.C. Cir. 2013), the non-moving party must show more than “[t]he mere existence
of a scintilla of evidence in support of” his or her position. Anderson, 477 U.S. at 252.
Rather, “there must be evidence on which the jury could reasonably find” for the non-
moving party. Id. Moreover, the non-moving party “may not rest upon mere allegation
or denials of his pleading but must present affirmative evidence showing a genuine
issue for trial.” Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987)
(internal quotation marks and citation omitted).
“Credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge at summary
judgment.” Barnett v. PA Consulting Grp., Inc., 715 F.3d 354, 358 (D.C. Cir. 2013)
(citation omitted). Accordingly, a court’s role in deciding summary judgment is not to
“determine the truth of the matter, but instead [to] decide only whether there is a
genuine issue for trial.” Id. Given “the potential difficulty for a plaintiff in an
employment discrimination or retaliation action to uncover clear proof of
discriminatory or retaliatory intent,” Nurriddin v. Bolden, No. 04-2052, 2014 WL
1648517, at *5 (D.D.C. Apr. 25, 2014), this Court reviews a defendant’s motion for
summary judgment in a discrimination case with a slightly “heightened standard[,]”
Walker v. England, 590 F. Supp. 2d 113, 133 (D.D.C. 2008) (citation omitted).
However, despite the fact that “summary judgment must be approached with specific
caution in discrimination cases, a plaintiff is not relieved of his obligation to support
his allegations” with competent evidence showing a genuine issue for trial. Id. at 132-
133 (quoting Morgan v. Fed. Home Loan Mortg. Corp., 172 F. Supp. 2d 98, 104
7
(D.D.C. 2001)); see also Marshall v. James, 276 F. Supp. 2d 41, 47 (D.D.C. 2003)
(noting that, even though courts must proceed with caution, summary judgment is still
used in discrimination cases).
III. ANALYSIS
A. Johnson’s Title VII Race Discrimination Claim (Count I)
Johnson first contends that DOL subjected him to discrimination because of his
race. (Compl. ¶¶ 74-75.) 4 While there may well be a genuine issue of fact regarding
whether Defendant’s stated non-discriminatory reasons for terminating Johnson are, in
fact, the actual reasons, Johnson has not offered sufficient evidence to support the
conclusion that Defendant’s proffered reasons are pretext for race discrimination.
Accordingly, this Court finds that Johnson’s race discrimination claim cannot survive
Defendant’s motion for summary judgment.
1. Legal Framework For Employment Discrimination Cases
Under Title VII, it is unlawful for an employer to “fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-
2(a)(1). Title VII “establishes two elements for an employment discrimination case: (i)
the plaintiff suffered an adverse employment action (ii) because of the employee’s race,
color, religion, sex, or national origin.” Brady v. Office of the Sergeant at Arms, 520
4
Johnson’s complaint, which alleges that Defendant “subjected [Johnson] to unlawful discrimination”
by “subjecting him to disparate treatment and terminating his employment” (Compl. ¶ 74 (emphasis
added)), could reasonably be construed as asserting claims based on adverse actions other than his
termination. However, in his opposition brief, Johnson appears to concede that his termination is the
only adverse action at issue in this case. (See Pl.’s Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s Br.”),
ECF No. 16, 21 (identifying termination as the only adverse action at issue in the case).)
8
F.3d 490, 493 (D.C. Cir. 2008). An adverse employment action is “a significant change
in employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing significant change in
benefits.” Baird v. Gotbaum, 662 F.3d 1246, 1248 (D.C. Cir. 2011) (internal quotation
marks and citation omitted).
In evaluating Title VII claims, courts in this jurisdiction typically apply the
familiar burden allocation scheme that the Supreme Court adopted in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See id. at 802-803; see also Stewart v.
Ashcroft, 352 F.3d 422, 428 (D.C. Cir. 2003) (applying McDonnell Douglas to Title VII
discrimination claims). Pursuant to this scheme, a plaintiff must first demonstrate by a
preponderance of the evidence that a prima facie case of discrimination exists. Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-253 (1981). If the plaintiff is able
to establish a prima facie case, then the burden shifts to the defendant to proffer a non-
discriminatory reason for the challenged employment action. See McDonnell Douglas,
411 U.S. at 802-803. Once the defendant offers such a reason, the burden shifts back to
the plaintiff to demonstrate that the employer’s non-discriminatory explanation is
merely pretext for discrimination. See id. at 804.
Significantly, the D.C. Circuit has clarified that, “[i]n a Title VII disparate-
treatment suit where an employee has suffered an adverse employment action and an
employer has asserted a legitimate, non-discriminatory reason for the decision, the
district court need not—and should not—decide whether the plaintiff actually made out
a prima facie case under McDonnell Douglas.” Brady, 520 F.3d at 494 (emphasis in
original). Instead, the court must simply determine whether the plaintiff has produced
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“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[.]” Id.
In establishing whether a reasonable jury could find an employer’s stated reasons
for the challenged action was pretext for race discrimination, relevant evidence may
include, inter alia, “‘(1) the plaintiff’s prima facie case; (2) any evidence the plaintiff
presents to attack the employer’s proffered explanation for its actions; and (3) any
further evidence of discrimination that may be available to the plaintiff (such as
independent evidence of discriminatory statements or attitudes on the part of the
employer).’” Waterhouse v. Dist. of Columbia, 298 F.3d 989, 993 (D.C. Cir. 2002)
(quoting Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998) (en
banc)). Evidence that an employer’s “explanation is unworthy of credence” is certainly
“probative of intentional discrimination” and may, “[i]n ‘appropriate circumstances,’”
lead a reasonable jury to infer “‘that the employer is dissembling to cover up a
discriminatory purpose.’” Czekalski v. Peters, 475 F.3d 360, 366 (D.C. Cir. 2007)
(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000)).
However, even where a plaintiff alleging racial discrimination produces evidence that
an employer’s proffered explanation is false—i.e., pretextual—the plaintiff “must still
provide sufficient evidence that the [employer’s] proffered explanation is pretext for
racial discrimination.” Evans v. Sebelius, 716 F.3d 617, 623 (D.C. Cir. 2013)
(emphasis in original). Title VII “does not authorize a federal court to become a
‘super-personnel department that reexamines an entity’s business decisions[,]’”
Barbour v. Browner, 181 F.3d 1342, 1346 (D.C. Cir.1999) (quoting Dale v. Chi. Trib.
10
Co., 797 F.2d 458, 464 (7th Cir.1986)), and reviewing courts “may not ‘second-guess
an employer’s personnel decision absent demonstrably discriminatory motive[,]’”
Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996) (quoting Milton
v. Weinberger, 696 F.2d 94, 100 (D.C. Cir. 1982)).
Furthermore, in an employment discrimination case where the plaintiff
challenges his termination and “‘the person who made the decision to fire [the plaintiff]
was the same person who made the decision to hire,’” courts in this jurisdiction have
recognized that “it is difficult to impute to that person an invidious motivation that
would be inconsistent with the decision to hire,’ especially ‘when the firing has
occurred only a short time after the hiring.’” Vatel v. Alliance of Auto. Mfrs., 627 F.3d
1245, 1247 (D.C. Cir. 2011) (quoting Waterhouse, 298 F.3d at 996). This so-called
“same actor inference” cuts against a finding of discrimination, but it is “just that, an
inference, which cannot immunize the defendant from liability for subsequent
discrimination[.]” Ragsdale v. Holder, 668 F. Supp. 2d 7, 23 (D.D.C. 2009) (internal
quotation marks and citation omitted). However, this inference does “require the
plaintiff to present further evidence to defeat the defendant’s motion for summary
judgment.” Id. Moreover, while “far from dispositive,” the fact that a plaintiff and the
person who fired him “are members of the same protected class” also “‘weighs against
any inference of discrimination.’” Washington v. Chao, 577 F. Supp. 2d 27, 42 n.8
(D.D.C. 2008) (quoting Hammond v. Chao, 383 F. Supp. 2d 47, 58 (D.D.C. 2005), aff’d,
2006 U.S.App. LEXIS 13290 (D.C. Cir. May 22, 2006)).
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2. Johnson Has Failed To Offer Sufficient Evidence For A Reasonable
Jury To Conclude That The Proffered Reason For Johnson’s
Termination Was Pretext For Race Discrimination
Johnson presses three main arguments in an attempt to overcome these
presumptions and to establish a question of fact regarding whether Defendant’s stated
reasons for his termination—unsatisfactory performance and argumentative demeanor—
were pretext for race discrimination. First, Johnson argues that Burke, the individual
directly responsible for his termination, gave conflicting reasons at different points in
time for his decision to terminate Johnson, thus (in Johnson’s view) giving rise to an
inference that the reasons Defendant now proffers are pretextual. (Pl.’s Opp’n to Def.’s
Mot. for Summ. J. (“Pl.’s Br.”), ECF No. 16, 26-27.) Second, Johnson points to
evidence that his actual performance and workplace demeanor were largely positive,
which Johnson claims casts further doubt on Defendant’s proffered non-discriminatory
explanation for Johnson’s termination. (Id. at 24-25.) Finally, Johnson argues that
there was a general attitude of discrimination amongst his superiors at VETS, which he
claims shows that Defendant’s actual motivation for terminating Johnson was race
discrimination. (Id. at 28-29.) The Court will address each of these contentions in turn.
a. Burke Did Not Give Conflicting Reasons For Johnson’s
Termination And Burke’s Statements Are Insufficient To
Demonstrate Pretext For Race Discrimination
Johnson contends that “Mr. Burke gave conflicting statements” regarding the
reasons for his termination; specifically, that Burke stated first that Johnson was fired
“to support the supervisor” then later said it was because Johnson “cannot do the work,”
and finally explained that the “reason for terminating [Johnson] was based on [Burke’s]
own dissatisfaction with [Johnson’s] argumentative demeanor and his reported lack of
performance.” (Pl.’s Suppl. Decl. ¶ 39.) Johnson’s reliance on Burke’s supposedly
12
shifting rationales as evidence of pretext for race discrimination is grounded on the
established principle that “evidence of alternate justifications tends to undercut the
proffered explanation and may demonstrate pretext.” Ajisefinni v. KPMG LLP, No. 11-
123, 2014 WL 658405, at *8 (D.D.C. Feb. 12, 2014) (internal quotation marks and
citation omitted).
This Court finds Johnson’s evidence insufficient to raise a triable issue of fact as
to whether Defendant’s proffered reasons were actually pretext for race discrimination
largely because a careful review of the record reveals that Johnson is wrong to cast
Burke’s statements regarding Johnson’s termination as contradictory. As an initial
matter, the Court notes that the only evidence Johnson cites for his contention that
Burke’s original reason for firing him was to “support” Langley is Johnson’s own
account of a conversation that is otherwise absent from the record. (See Pl.’s Br. at 27
(citing Pl.’s Suppl. Decl. ¶ 39).) Such self-serving testimony is insufficient to create a
genuine issue of material fact regarding whether an employer’s proffered reason for
termination was pretextual. See Bennett v. Solis, 729 F. Supp. 2d 54, 67 (D.D.C. 2010);
Fields v. Johnson, 520 F. Supp. 2d 101, 105 (D.D.C. 2007).
But even if Johnson’s recounting of his initial conversation with Burke is
accurate, there is still nothing contradictory about Burke’s statements that he (1) fired
Johnson to “support [Johnson’s] supervisor” and (2) fired Johnson because Johnson
could not “do the work.” Indeed, it stands to reason 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. Likewise, Burke’s assertions that he terminated Johnson based on his
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“own dissatisfaction with [Johnson’s] argumentative demeanor”— which Burke
maintained he “personal[ly] witness[ed]”—and based on Johnson’s “reported lack of
performance” do not contradict either of the other statements. (Aff. of Gordon Burke
Jr. (“Burke Aff.”), Ex. 19 to Pl.’s Br., ECF No. 16-3 at 32-35, 33.) Thus, the alleged
inconsistency Johnson identifies is not an inconsistency at all, but rather a “refinement
of a previously proffered explanation[,]” which, in and of itself, “is insufficient to
demonstrate pretext.” Ajisefinni, 2014 WL 658405, at *8. Accordingly, this Court
finds that a reasonable jury could not infer pretext—much less pretext for racial
discrimination—based on Burke’s allegedly shifting explanations for Johnson’s
termination.
b. Johnson’s Evidence Regarding His Job Performance And
Workplace Demeanor Is Insufficient To Demonstrate Pretext
For Race Discrimination
Plaintiff also attempts to cast doubt on Defendant’s stated reasons for Johnson’s
termination through testimony from his co-workers about his own job performance and
workplace demeanor. Regarding his job performance, Johnson relies in part on the
testimony of his former supervisor at the Office of Special Programs and Emergency
Preparedness, Walter Weatherington, who testified that Johnson had “performed all his
duties in an outstanding manner” while in Weatherington’s employ. (Aff. of Walter
Ozell Weatherington (“Weatherington Aff.”), Ex. 13 to Pl.’s Br., ECF No. 16-3 at 1-3,
¶ 7.) Johnson also points to statements by Angela Freeman, who worked closely with
Johnson at VETS and apparently considered Johnson’s work to be “excellent and
extremely timely in manner.” (Aff. of Angela B. Freeman (“Freeman Aff.”), Ex. 8 to
Pl.’s Br., ECF No. 16-2 at 11-13, 12.) Moreover, Johnson invokes the testimony of
VETS co-worker Loretta Alston, whom Johnson trained, that Johnson was “very
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competent.” (Dep. of Loretta Jamese Alston (“Alston Dep.”), Ex. 4 to Pl.’s Br., ECF
No. 16-1 at 24-36, 29:18-20.) Even Hecker conceded that Johnson “worked well when
assigned to coordinate and interact with others to complete an assignment[.]” (Aff. of
Patrick J. Hecker (“Hecker Aff.”), Ex. 21 to Pl.’s Br., ECF No. 16-3 at 39-41, ¶ 8.)
With respect to Plaintiff’s demeanor, Hecker further testified that he did “not
recall any specific instances where [Johnson] was argumentative towards others.” (Id.
¶ 10.) Plaintiff also notes that Burke told EEO Counselor Margaret Terry that Johnson
was “a good guy” with “a very favorable nature that’s good in the work place[,]” (EEO
Counselor’s Summ. Report (“EEO Counselor’s Report”), Ex. 18 to Pl.’s Br., ECF
No. 16-3 at 28-30, 29), and that Langley testified that Johnson was not
“insubordinate[,]” (Dep. of Pamela K. Langley (“Langley Dep.”), Ex. 2 to Pl.’s Br.,
ECF No. 16-1 at 13-19, 17:21-18:1). Moreover, VETS co-workers Loretta Alston, Jenel
Turner, and Linda Chambers all testified that they never witnessed Johnson being
argumentative at work. (Alston Dep. at 34:9-16; Dep. of Jenel Turner (“Turner Dep.”),
Ex. 5 to Pl.’s Br., ECF No. 16-1 at 38-41, 40:19-21; Aff. of Linda Chambers
(“Chambers Aff.”), Ex. 6 to Pl.’s Br., ECF No. 16-2 at 2-6, ¶ 10.)
Meanwhile, Defendant points to testimony that tells a largely different story.
With respect to Johnson’s work performance, for example, Langley stated that Johnson
“consistently failed to follow [her] instructions for a given spreadsheet task, however
routine and basic” and that “numerous back-and-forth interactions with [Johnson] were
required in order to obtain an error-free work product.” (Decl. of Pamela Langley
(“Langley Decl.”), Ex. 4 to Def.’s Mem. in Supp. of Mot. for Summ. J., ECF No. 14-1
at 34-40, ¶ 13.) Hecker testified that when Johnson worked independently the resulting
15
work product frequently “contained easily identified errors[,]” that he “was
disappointed with [Johnson’s] performance[,]” and that Hecker did “not believe that
[Johnson] possesses the knowledge or organizational skills required of the position.”
(Hecker Aff. ¶¶ 8-9.) A contract employee assigned to work with Johnson at VETS, Ed
Davin, testified to Johnson’s “low level of skill with Excel and his correspondingly
poor performance managing the various spreadsheet functions.” (Aff. of Ed Davin,
Ex. 8 to Def.’s Mem. in Supp. of Mot. for Summ. J., ECF No. 14-2 at 24-35, ¶ 7.)
In terms of Johnson’s demeanor, Hecker, for his part, also testified that Johnson
“would become defensive” when confronted with his own substandard work. (Hecker
Aff. ¶ 10.) Langley also testified at length as to Plaintiff’s “argumentative” demeanor.
(Langley Decl. ¶¶ 9, 13, 14.) And Burke, the individual ultimately responsible for both
hiring and firing Johnson, testified that Johnson “confronted many of [Burke’s]
attempts to help him by responding with a very argumentative demeanor[,]” (Burke Aff.
at 35); that Johnson’s “argumentative attitude” was “disruptive and inconsistent with
good order and discipline” (Aff. of Gordon J. Burke Jr., Ex. 23 to Def.’s Mem. in Supp.
of Mot. for Summ. J., ECF No. 14-4 at 23-25, ¶ 14); and that Johnson “was
argumentative with his supervisor on a number of occasions[,]” (id.). Furthermore,
Burke stated that he “found [Johnson] personally to be argumentative” because Johnson
was “argumentative with [Burke] on three occasions where he was actually in [Burke’s]
office to discuss performance.” (Dep. of Gordon John Burke, Jr. (“Burke Dep.”), Ex. 2
to Def.’s Mem. in Supp. of Mot. for Summ. J., ECF No. 14-1 at 13-23, 17:9-14).
This Court finds, based on the foregoing evidence, that there is arguably a
genuine dispute of fact about Plaintiff’s job performance and workplace demeanor and,
16
thus, whether Defendant’s proffered reasons for terminating Johnson were pretextual.
However, Plaintiff’s evidence does not speak to the question of whether Defendant’s
proffered reasons were pretext for race discrimination in the manner that the D.C.
Circuit’s Brady decision requires. And in the absence of any evidence tending to
demonstrate that the real reason for Plaintiff’s termination was discrimination on the
basis of his race, Johnson’s complaint cannot survive summary judgment. See, e.g.,
Evans v. Sebelius, 716 F.3d at 623 (affirming in relevant part district court’s grant of
summary judgment on the grounds that evidence that defendant employer “gave
conflicting and illegitimate reasons” for challenged action and failed to follow “proper
protocols” was insufficient to support Title VII claim where plaintiff produced “no
evidence” that employer’s “proffered explanation [was] pretext for racial
discrimination”).
c. Johnson’s Allegations Regarding General Discrimination At
VETS Are Insufficient To Demonstrate That Johnson Was
Terminated Because Of His Race
Plaintiff points to one last set of evidence in an attempt to prove that Defendant’s
proffered reasons for Johnson’s termination were pretext for race discrimination.
Specifically, Johnson contends that both Langley and Hecker exhibited animus
generally toward African American employees. The incidents Plaintiff cites as
evidence of Langley’s and Hecker’s discriminatory attitudes generally fall into two
categories: first, incidents in which Johnson was allegedly treated differently than his
white co-workers, and second, incidents that, in Johnson’s view, evince Langley’s and
Hecker’s general discriminatory attitudes towards African-Americans. With respect to
disparate treatment, Johnson points to the fact that Langley allegedly denied him the
opportunity to accrue overtime hours but allowed white co-workers—specifically
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Hecker—to do so. (Pl.’s Suppl. Decl. ¶¶ 21-25.) Johnson also asserts that Langley
cancelled his scheduled training trip to the National Veteran’s Training Institute, citing
lack of funding, but allowed two white colleagues to make similar trips. (Pl.’s Suppl.
Decl. ¶ 26.)
With respect to Langley’s and Hecker’s alleged general discriminatory attitudes
towards African Americans, Plaintiff primarily relies on the observations and
experiences of several co-workers. Angela Freeman testified that she repeatedly heard
Langley and Hecker yell at Johnson and refer to him as “useless and stupid[.]”
(Freeman Aff. at 12.) Jenel Turner, another co-worker who had been with VETS for 14
years, witnessed Johnson’s supervisors “dressing him down” in front of other co-
workers, and also witnessed Hecker “talk down to minority employees” as though “their
comprehension skills were limited.” (Aff. of Jenel M. J. Turner (“Turner Aff.”), Ex. 12
to Pl.’s Br., ECF No. 16-2 at 38-40, ¶ 11.) Plaintiff further claims that Hecker
“degraded” African-American co-worker Loretta Alston by “insisting she sign her name
multiple times in front of him until he could read it.” (Pl.’s Suppl. Decl. ¶ 17.) Finally,
Johnson points to evidence from his own experiences with Langley and Hecker. First,
Plaintiff states that as a general matter, Langley “acted tense and uncomfortable
anytime she was” around him but “did not appear tense and uncomfortable around other
white employees.” (Id. ¶ 18.) Second, Plaintiff claims that Hecker told Johnson about
a previous incident that took place “while Mr. Hecker was stationed overseas[,]” in
which Hecker said he “directed some African-American soldiers to take out the
garbage[,]” then “referred to the soldiers as lazy[,]” and subsequently had “an EEOC
complaint” filed against him “for being racist.” (Id. ¶ 12.)
18
Co-worker testimony is a common feature of employment discrimination
litigation, and in some circumstances, such evidence can be relevant to the question of
whether an employee was subjected to discrimination. See, e.g., Nuskey v. Hochberg,
723 F. Supp. 2d 229, 233 (D.D.C. 2010) (noting that “[e]vidence of an employer’s past
discriminatory or retaliatory behavior toward other employees” might be admissible at
trial as relevant to the question of “whether an employer discriminated or retaliated
against a plaintiff”) (citation omitted). However, unsubstantiated co-worker testimony
alone is generally insufficient to raise a question of material fact regarding pretext at
the summary judgment stage. See, e.g., Ransom v. Ctr. For Nonprofit Advancement,
514 F. Supp. 2d 18, 27 (D.D.C. 2007) (conclusory testimony of co-worker regarding
discrimination against plaintiff was not “actual evidence” of pretext); Chung v.
Washington Metro. Area Transit Auth., No. 04-0366, 2007 WL 1154084, at *3 (D.D.C.
Apr. 18, 2007) (co-worker testimony that plaintiff failed to receive promotion based on
race and gender was not probative of pretext); Carter v. Rubin, 14 F. Supp. 2d 22, 42
(D.D.C. 1998) (finding that “broad allegations” of discrimination within a government
agency “have no bearing” on the question of pretext).
Here, the testimony of Johnson’s co-workers falls far short of raising a question
of material fact because, even if the Court credits these statements, they do not bear
directly on the issue at hand—namely, whether the proffered reasons for Johnson’s
termination were pretext for race discrimination. For example, Jenel Turner, the co-
worker with what is arguably the strongest testimony regarding potentially
discriminatory practices within VETS, conceded that she was “not privy to any of the
underlying facts, factors, issues or details that could potentially warrant Mr. Johnson’s
19
termination[.]” (Turner Aff. ¶ 12.) And Freeman’s testimony regarding Langley’s and
Hecker’s behavior toward Johnson fails to connect that behavior to Johnson’s ultimate
termination. Consequently, Turner’s and Freeman’s testimony are insufficient to show
that Defendant’s stated reasons for Johnson’s termination were pretext for racial
discrimination. Johnson’s own testimony is similarly deficient because he has failed to
demonstrate that his allegations that Hecker degraded Alston, that Langley appeared to
be uncomfortable around him, and also that Hecker once told a story about being
accused of racism, are causally connected to his termination. See, e.g., Bolden v.
Clinton, 847 F. Supp. 2d 28, 38 (D.D.C. 2012) (granting summary judgment where
plaintiff failed to draw any “causal connection” between termination and race); Laurent
v. Bureau of Rehab., Inc., 544 F.Supp.2d 17, 23 n.5 (D.D.C.2008) (finding that plaintiff
could not establish pretext where “she [was] unable to show any causal connection
between her complaints about a fellow employee’s conduct and her dismissal”).
In a similar vein, Johnson’s evidence regarding his alleged disparate treatment—
namely, that Hecker was allowed to accrue overtime hours while Johnson was not and
that two white co-workers were allowed to attend training conferences while Johnson
was not—fails to raise a genuine question of fact as to whether Johnson’s termination
was based on race discrimination. Even setting aside the significant question of
whether these other employees were “similarly situated” to Johnson, see, e.g., Kassim v.
Inter-Cont’l Hotels Corp., No. 12-01663, 2013 WL 6154115, at *5 (D.D.C. Nov. 25,
2013), the purported disparate treatment evidence has no apparent connection to the
proffered reasons for Johnson’s termination and is therefore insufficient to show that
those reasons were pretextual.
20
All things considered, this Court finds that Plaintiff has failed to demonstrate a
genuine issue of material fact regarding whether Defendant’s proffered non-
discriminatory reasons for terminating Johnson are pretext for race discrimination.
Accordingly, the Court will enter summary judgment in favor of Defendant as to Count
I.
B. Hostile Work Environment Based on Race and Color (Count II)
Johnson’s second claim for relief alleges that he was subjected to a “hostile work
environment based on his race and color in violation of Title VII.” (Compl. ¶¶ 76-77.)
For the reasons explained below, Johnson has failed to adduce facts sufficient to sustain
his hostile work environment claim, both because the facts upon which he bases his
claim are not extreme enough to satisfy the applicable standard, and also because
Johnson has failed to establish any link between the allegedly hostile acts and race
discrimination.
1. Framework For Establishing A Hostile Work Environment Claim
To succeed on a hostile work environment claim, “a plaintiff must show that his
employer subjected him to ‘discriminatory intimidation, ridicule, and insult’ that is
‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and
create an abusive working environment.’” Baloch v. Kempthorne, 550 F.3d 1191, 1201
(D.C. Cir. 2008) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citation
omitted)). “To determine whether a hostile work environment exists, the court looks to
the totality of the circumstances, including the frequency of the discriminatory conduct,
its severity, its offensiveness, and whether it interferes with an employee’s work
performance.” Id. (citation omitted). “In addition, the plaintiff ‘must always prove that
the conduct at issue was not merely tinged with offensive connotations, but actually
21
constituted discrimination because of’ the employee’s protected status.” Peters v. Dist.
of Columbia, 873 F. Supp. 2d 158, 188 (D.D.C. 2012) (quoting Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 81 (1998)). “It is . . . important in hostile work
environment cases to exclude from consideration personnel decisions that lack a linkage
of correlation to the claimed ground of discrimination” lest “the federal courts . . .
become a court of personnel appeals.” Lewis v. Dist. of Columbia, 653 F. Supp. 2d 64,
80 (D.D.C. 2009) (quoting Bryant v. Brownlee, 265 F. Supp. 2d 52, 63 (D.D.C.2003)
(citation omitted)). Indeed, “[t]he standards for finding a workplace illegally hostile
are sufficiently demanding” precisely because courts must “ensure that Title VII does
not become a general civility code.” Brooks v. Grundmann, 851 F. Supp. 2d 1, 6
(D.D.C. 2012) (internal quotation marks and citations omitted).
2. The Record Evidence Does Not Establish That Johnson Was
Subjected To A Hostile Work Environment
To support his hostile work environment claim, Johnson points to a number of
workplace incidents involving his relationships with Langley and Hecker. First,
Johnson claims that Hecker once humiliated him by talking down to him “as if he were
a child” and “raised his voice at” Johnson on multiple occasions. (Pl.’s Suppl. Decl.
¶¶ 55-56.) Then, Johnson alleges that both Hecker and Langley wrongly accused him of
making errors in reports and spreadsheets. (Id. ¶¶ 57-58.) Next, Johnson alleges that
Langley repeatedly “yelled at” or spoke “angrily” to him (id. ¶¶ 58, 59, 61), and that,
on one occasion, Langley “glared at [him], balled up both of her fists, and threw two
catalogs down towards” him (id. ¶ 60). Finally, Johnson again invokes the story Hecker
allegedly told Johnson about being accused of “racism” by African-American soldiers
22
while stationed overseas. (Pl.’s Br. at 18 (citing id. ¶ 12).) Johnson claims that
Langley and Hecker did not subject his white co-workers to the same behavior. (Id.)
After reviewing the “totality of the circumstances” presented by this case, see
Baloch, 550 F.3d at 1201, this Court concludes that that Johnson’s alleged experiences,
even if true, are insufficient as a matter of law to support a hostile work environment
claim under Title VII. As noted above, such a claim arises from conduct that
“permeated” the workplace “with discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the victim’s employment and
create an abusive working environment.” Harris, 510 U.S. at 21 (internal quotation
marks and citations omitted). Here, even when viewing the facts in the light most
favorable to Johnson and taking as true his experiences of being “yelled at,”
“scrutinized,” and called “stupid” behind his back, the Court cannot find that these
experiences, although obviously unpleasant and highly questionable, constitute the type
of hostile and abusive workplace environment that gives rise to a claim under Title VII.
It is well established that the “demanding standard for a hostile work
environment claim[,]” Bergbauer v. Mabus, 934 F. Supp. 2d 55, 78 (D.D.C. 2013),
requires much more. Indeed, conduct far more egregious than what Johnson describes
has been found to fall short of establishing a hostile work environment. See, e.g.,
Beshir v. Jewell, 961 F. Supp. 2d 114, 128 (D.D.C. 2013) (facts were insufficient to
establish a hostile work environment where employee was yelled at on a daily basis
causing her to seek medical attention, was subjected to aggressive pressure to violate
federal regulations, was threatened with career setbacks, and was accused of threatening
her supervisor and suspended); Franklin v. Potter, 600 F. Supp. 2d 38, 77 (D.D.C.
23
2009) (a hostile work environment was not sufficiently established even though the
“employee and his immediate supervisor repeatedly butted heads,” “the supervisor
frequently yelled at [the employee] during discussions about his work,” and “the
supervisor threatened [the employee] with job-related consequences for his refusals to
meet workplace expectations”) (internal quotation marks and citations omitted); see
also Dudley v. Washington Metro. Area Transit Auth., 924 F. Supp. 2d 141, 171
(D.D.C. 2013) (discussing “[a] litany of cases show[ing] that simply having a rude,
harsh, or unfair boss is not enough for a hostile work environment claim”). It is clear
beyond cavil that “[c]riticisms of a subordinate’s work and expressions of disapproval
(even loud expressions of disapproval) are the kinds of normal strains that can occur in
any office setting” and the fact that a plaintiff was “spoken to in a condescending
manner, although perhaps disrespectful and unfair, also does not mean that [the
plaintiff] was subjected to an illegal hostile work environment.” Singh v. U.S. House of
Reps., 300 F. Supp. 2d 48, 56-57 (D.D.C. 2004). The alleged hostile acts in the instant
case, similarly, were not frequent, severe, or offensive enough to qualify as a hostile
work environment.
Moreover, and just as significant, Johnson does not provide enough evidence
from which a reasonable juror could infer that the alleged hostile acts were prompted by
his race. See, e.g., Beshir, 961 F. Supp. 2d at 129 (concluding plaintiff failed to
demonstrate hostile work environment because she “failed to link any of the allegedly
hostile workplace experiences to her race or sex”); Lewis, 653 F. Supp. 2d at 80 (noting
that it is “important in hostile work environment cases to exclude from consideration
personnel decisions that lack a linkage of correlation to the claimed ground of
24
discrimination”) (citations omitted). While Johnson alleges that he faced a “heightened
scrutiny” because of his race and color and that other white employees were not treated
that way, there is little, if any, record evidence to support these contentions. 5 And
without evidence that the hostile work environment that Johnson alleges he was
subjected to was made so because of racial animus, Johnson’s hostile work environment
claim fails. Cf. Baloch, 550 F.3d at 1201 (considering as part of the totality of the
circumstances that “none of the comments or actions directed at [the plaintiff] expressly
focused on his race, religion, age, or disability—unlike in some hostile work
environment cases”).
In sum, upon review of the entire record, this Court cannot conclude that
Johnson’s experiences rose above “the ordinary tribulations of the workplace” to
constitute the type of abusive discriminatory conduct necessary to sustain a hostile
work environment claim, Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)
(internal quotation marks and citation omitted), nor has Johnson successfully linked his
negative workplace experiences to evidence of discrimination based on his race or
color. Accordingly, the Court will enter summary judgment in favor of Defendant as to
Count II of the complaint.
5
The one instance Johnson cites in his brief opposing summary judgment as evidence of a hostile work
environment that does directly implicate race is that Hecker allegedly called African-American soldiers
“lazy” when he was stationed overseas and those soldiers filed an EEO claim against him for being
racist. (Pl.’s Br. at 18 (citing Pl.’s Supp. Decl. ¶ 12).) This one instance, however, clearly falls short
of substantiating Johnson’s hostile work environment claim for several reasons. First of all, it occurred
nearly three decades ago and, thus, bears no relevance to Plaintiff’s own employment at DOL. In
addition, the event was neither directed toward Plaintiff nor his work, and even so, having occurred
only once, it does not amount to “severe and pervasive” harassment requisite for a hostile work
environment claim. Moreover, Defendant notes that the EEO claim was “fully investigated by the
Army and found to be without merit[,]” and was the only complaint made against Hecker during his 20
years of service in the Army. (Def.’s Reply to Pl.’s Br., ECF No. 18, 8 (citation omitted).)
25
IV. CONCLUSION
Johnson’s brief tenure at VETS was marked by dissatisfaction on the part of all
parties involved—Johnson with the management style of Langley and Hecker, and
Langley and Hecker with Johnson’s attitude and work product. Plaintiff’s evidence
clearly establishes that there was a breakdown in the relationship between these
individuals, but it does not raise a reasonable inference that race discrimination played
a part in the outcome. Consequently, as set forth in the separate order accompanying
this Opinion, Defendant’s motion for summary judgment is GRANTED and the Court
will enter judgment against Johnson as to both counts.
DATE: September 2, 2014 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
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