Ukonu v. Wilkie

Case: 22-20336 Document: 00516778121 Page: 1 Date Filed: 06/07/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
June 7, 2023
No. 22-20336 Lyle W. Cayce
____________ Clerk
Joseph Ukonu,
Plaintiff—Appellant,
versus
Robert L. Wilkie, in his official capacity as Secretary of Veterans Affairs;
Francisco Vazquez, in his official capacity as Medical Center Director of
the Michael E. DeBakey VA Medical Center,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:20-CV-2018
______________________________
Before Jones, Clement, and Haynes, Circuit Judges.
Per Curiam: *
Joseph Ukonu was fired from his position as a nurse at the Houston
Veterans Affairs Medical Center (“VA”) for “conduct unbecoming of a
federal employee”—namely, misrepresenting the facts about an alleged on-
_____________________
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 22-20336
the-job injury. Ukonu sued the VA under Title VII for national origin
discrimination and retaliation. See 42 U.S.C. § 2000e et seq. The district
court entered summary judgment in the VA’s favor, which Ukonu now
appeals. Having reviewed de novo the briefs, the pertinent portions of the
record, and the transcript of the summary judgment hearing, we AFFIRM.
The undisputed facts are these: Ukonu, a naturalized citizen of the
United States, hails from Nigeria. After serving in the U.S. Armed Forces,
he worked as a nurse at the Houston VA from 2001 until his termination in
2019. During those 18 years, he filed four complaints against the VA with the
Equal Employment Opportunity Commission (“EEOC”) alleging national
origin discrimination and retaliation. 1 On October 23, 2017, Ukonu reported
that he had been assaulted by a co-worker the previous day, leaving him
“seriously traumatized.” Specifically, he alleged that at 7:35 a.m., a co-
worker rammed his chair with such force that he suffered whiplash. He
obtained medical care from the VA for his alleged injury. The co-worker
denied any physical contact and suggested the supervisor look at the security
footage. The VA police interviewed Ukonu, who maintained his story, and
reviewed the security footage, which showed no physical contact, much less
an assault. 2 In the meantime, Ukonu filed his fourth EEOC complaint.
Months passed, and then he and VA representatives met to mediate the
fourth EEOC claim on March 7th, 2019, which proved unsuccessful. Ukonu
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1
He filed EEOC complaints in 2008, 2012, 2016, and 2017.
2
The security footage revealed Ukonu sitting at his desk before 7:30 a.m.
At 7:33 a.m., the co-worker walked behind Ukonu, who scooted forward so she could more
easily pass him. Neither the co-worker nor her bag touched him. He arose from his seat at
7:48 a.m., shouldered his bag, and left the room exhibiting no physical impairments. Ukonu
complained to the district court that the clip he received from the VA during discovery
began at 7:33 a.m. and ended at 7:49 a.m., so he could not show that the assault must have
occurred earlier that morning. The district court commented that Ukonu’s counsel should
have asked for more footage.
2
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was terminated on March 28, 2019, for “unbecoming conduct” related to the
October 2017 incident—specifically, filing a false report against a co-worker,
fraudulently obtaining medical services, and lying to the police.
Assuming, arguendo, that Ukonu established a prima facie case of
discrimination and retaliation, he has failed to meet his burden under the
McDonnell Douglas framework to show that Appellees’ stated reason for
terminating his employment was pretextual. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 804, 93 S. Ct. 1817, 1825 (1973). “In order to survive a
motion for summary judgment, the plaintiff must show a conflict in
substantial evidence on this issue.” Saketkoo v. Adm’rs of Tulane Educ. Fund,
31 F.4th 990, 1002 (5th Cir. 2022) (internal quotation marks omitted).
Ukonu does not dispute that a charge of “conduct unbecoming a
federal employee” is a legitimate, nondiscriminatory reason for termination.
For both his discrimination and retaliation claims, Ukonu raises two
arguments to show that this stated reason was pretextual: first, that it was
false because his doctor said the injury was real; and second, that it is
unworthy of credence because the timing of his termination was suspicious.
First, Ukonu argues that he submitted summary judgment evidence
reflecting that his co-worker injured him, despite the VA’s video evidence to
the contrary. Thus, according to Ukonu, the VA’s stated reason was false.
“[E]vidence challenging the substance of violations, i.e., evidence
demonstrating their falsity,” may show pretext. Laxton v. Gap Inc., 333 F.3d
572, 580 (5th Cir. 2003). Ukonu relies on a doctor’s report from the day after
the alleged incident, in which the doctor diagnosed Ukonu with a strained
neck caused by a forceful bump consistent with Ukonu’s story. This is
enough, argues Ukonu, to create a factual dispute as to pretext.
We agree with the district court that whether Ukonu was in fact
injured by his co-worker is irrelevant. To corroborate Ukonu’s statement
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that the assault took place at about 7:35 a.m., the VA police reviewed security
footage and saw nothing Ukonu described. From the VA’s perspective,
Ukonu had not told the truth. Even if the VA’s conclusion was incorrect,
Ukonu has not provided evidence that would raise a fact issue that the VA’s
“erroneous decision” was “reached in bad faith.” Thomas v. Johnson,
788 F.3d 177, 179 (5th Cir. 2015). Thus, even though the doctor’s report
shows Ukonu had suffered an injury, it does not create a conflict in
substantial evidence on whether the reason given for his termination was
pretextual.
Second, Ukonu argues that the suspicious timing of his firing creates
an inference of pretext. Temporal proximity “does not, on its own, establish
. . . pretext.” Garcia v. Pro. Cont. Servs., Inc., 938 F.3d 236, 243 (5th Cir.
2019). Such evidence must be combined “with other significant evidence of
pretext . . . to survive summary judgment.” Id. at 244 (quoting Shackelford v.
Deloitte & Touche, LLP, 190 F.3d 398, 409 (5th Cir. 1999)). Ukonu argues
that it is highly suspicious that he was fired so soon after the mediation of his
EEOC claim proved unsuccessful. Further, he questions why it took the VA
sixteen months after the alleged incident to terminate his employment.
Ukonu’s supervisor, who ultimately recommended his removal, testified that
conducting the initial investigation and then determining the consequences
of employee misconduct take time. She testified further that in January 2018,
the VA police issued a report to the division responsible for handling charges
of employee misconduct, which at the time was processing a backlog of
charges. The picture Ukonu attempts to paint, of the VA suddenly harkening
back to a 2017 incident as a reason to fire him in 2019 for filing yet another
EEOC complaint, is strained. At the very least, he has not proffered other
significant evidence of pretext beyond the matter of timing to create a
4
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genuine issue of material fact. 3 Thus, his discrimination and retaliation
claims fail.
Ukonu also asserts that he suffered a hostile work environment in
retaliation for his protected activity. The VA moved for summary judgment
on the ground that Ukonu had failed to exhaust his administrative remedies
for this claim and that he had not made out a prima facie case. The district
court declined to reach the substantive issues on the belief that it did not have
jurisdiction over the claim due to Ukonu’s failure to exhaust. Citing Fort
Bend County v. Davis, 139 S. Ct. 1843, 1850–51 (2019), Ukonu argues that the
exhaustion requirement is prudential, not jurisdictional. This is correct, but
we affirm the district court’s dismissal of this claim nonetheless because
Ukonu undisputedly failed to exhaust his administrative remedies. The VA
preserved this defense by properly raising it before the district court when
moving for summary judgment. See id. at 1849.
In sum, we hold that the district court was correct in finding that
Ukonu failed to create a genuine factual dispute that he was fired by reason
of his national origin or in retaliation for protected activity.
AFFIRMED.
_____________________
3
Ukonu asserts that two of his supervisors had it in for him due to the outcome of
his previous EEOC complaints, but he has no evidence of their bias beyond his subjective
belief. Further, he alleges that the VA waited until four days after mediation proved
unsuccessful to give him his termination letter, which was dated March 5, 2019—two days
before the scheduled mediation. This too does not raise a fact issue as to pretext. If
anything, it shows that the VA wanted to give Ukonu one last chance to “come clean,” not
that the reason for firing him was false.
5