Karl Hampton v. Tom Vilsack

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 7, 2012 Decided July 13, 2012
No. 11-5194
KARL HAMPTON,
APPELLANT
v.
TOM VILSACK, SECRETARY,
UNITED STATES DEPARTMENT OF AGRICULTURE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cv-02221)
Michael J. Kator argued the cause for the appellant.
Andrea Goplerud entered an appearance.
Jane M. Lyons, Assistant United States Attorney, argued
the cause for the appellee. Ronald C. Machen, Jr., United
States Attorney, and R. Craig Lawrence, Assistant United
States Attorney, were on brief. Christian A. Natiello,
Assistant United States Attorney, entered an appearance.
Before: HENDERSON and TATEL, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
2
KAREN LECRAFT HENDERSON, Circuit Judge: Karl
Hampton (Hampton) appeals the district court’s grant of
summary judgment to Tom Vilsack (Secretary), Secretary of
the United States Department of Agriculture (Department,
USDA), on a race discrimination claim he brought under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et
seq. See Hampton v. Vilsack, 760 F. Supp. 2d 38 (D.D.C.
2011). For the reasons set forth below, we affirm the district
court.
I.
Hampton is a black male who began working in the
Department’s Foreign Agricultural Service (FAS) in 1987. 1
Hampton is no stranger to litigation against the Department.
He joined a class action against USDA in 1991 and filed an
Equal Employment Opportunity complaint against USDA in
1996. Both cases related to racially discriminatory
employment practices and both settled. From March 2002 to
June 2002, Hampton was detailed to the Executive Office of
the President. In April 2002, Dale Miller (Miller), Hampton’s
first-line supervisor at FAS, used a racial epithet in describing
Hampton’s detail to another FAS employee.
Hampton had been the subject of two USDA
investigations before the investigation at issue here. In April
2002, a USDA employee informed Miller that he had
discovered sexually explicit materials in the printer tray of a
USDA printer. The USDA Human Resources Division and
Computer Security Office conducted an investigation and
determined that the materials were printed from Hampton’s
computer. Acting on a Department employee relations
specialist’s recommendation, Miller proposed a fourteen-day
1
For the facts, we rely on the undisputed facts set out in the
district court’s decision and other documents filed in that court.
3
suspension. Hampton contested the suspension. Ellen
Terpstra, a USDA administrator and the deciding official,
ultimately sustained two of the three charges against Hampton
and reduced his suspension to seven days. Later, in June
2003, FAS’s human resources department initiated another
investigation involving Hampton, this one alleging that
Hampton had a conflict of interest resulting from a food
processing company he incorporated in 1998. The
investigation—still ongoing in 2004—revealed that Hampton
had failed to disclose his financial interest in the company to
USDA as required by its ethics regulations.
In early 2004, Hampton submitted for reimbursement a
copy of a hotel receipt. USDA employee Christine Lipscomb
processed the reimbursement request and, per USDA
procedure, asked Hampton to submit the original receipt.
Hampton submitted what he said was the original but
Lipscomb noticed what she believed were handwritten
changes on the receipt. Lipscomb then contacted the hotel to
obtain the original receipt. Based on her review of the receipt
provided by the hotel and the receipt Hampton submitted,
Lipscomb concluded that Hampton had altered the receipt.
She then brought the matter to Miller’s attention who in turn
showed the receipts to Roy Henwood (Henwood), Miller’s
supervisor and Hampton’s second-line supervisor. 2 Henwood
believed that the matter should be referred to the
Department’s Compliance Review Staff (CRS)—Miller
agreed and turned over the receipts to Richard Maxwell, a
CRS security officer with twenty-five years’ experience as an
Army criminal investigator.
2
As Hampton’s second-line supervisor, Henwood was the
deciding official for any disciplinary sanctions taken against
Hampton.
4
In his Report of Investigation (Report), Maxwell
concluded, inter alia, that Hampton had submitted for
reimbursement nine falsified receipts from hotels at which he
stayed during six different business trips. The receipts totaled
over $1,400, and were altered—some by pen and others typed
in a format inconsistent with each hotel’s bona fide receipts—
to indicate that Hampton had spent additional nights, thereby
increasing the reimbursement amount. The Report was based
on eighteen witness interviews, copies of records from
Hampton’s government-issued credit card, hotel receipts and
travel vouchers that Hampton submitted. The results of the
investigation relating to Hampton’s hotel receipts as well as
the earlier conflict of interest investigation were sent to Lucy
Muir, a USDA employee relations specialist who had had no
earlier contact with Hampton. Muir believed Hampton should
be terminated. She discussed the matter with Miller who was
the proposing official for any sanction imposed on Hampton.
After reviewing the Department’s table of penalties, Miller
likewise determined that termination was the appropriate
sanction. Muir drafted and Miller signed a proposal that
Hampton be terminated.
Hampton responded to his proposed termination in
writing and at a pre-termination hearing before both Muir and
Henwood in March 2005. Shortly after the hearing, Henwood
asked Maxwell to investigate further several “reasonable
questions” that Hampton raised regarding some of the charges
against him. Letter from Roy Henwood to Richard Maxwell
and Robert Huttenlocker (May 3, 2005) (Maxwell Letter).
Specifically, Henwood asked Maxwell to obtain the original
receipts from the hotels or, alternatively, to supplement the
record with confirmation from each hotel manager that each
receipt had been altered or was otherwise fraudulent.
Interviews with managers and employees of the hotels for
which Hampton submitted receipts revealed that the receipts
were not valid. The interviews also revealed that Hampton
5
threatened legal action against at least one hotel manager if he
cooperated with CRS investigators.
On April 25, 2006, Henwood recommended Hampton’s
termination, sustaining four of the six charges set forth in
Miller’s termination proposal: Hampton (1) submitted false
receipts for reimbursement; (2) failed to properly remit to
USDA a credit issued by a hotel to his government-issued
credit card; (3) failed to report all required financial interests;
and (4) provided false information to CRS as part of an
official investigation. 3 Henwood’s recommendation was then
forwarded to the Foreign Service Grievance Board (FSGB). 4
After a hearing, the FSGB determined that the Department
had established cause for Hampton’s termination. On May 1,
3
Henwood did not sustain the charges that Hampton misused a
government-issued credit card and used his government position for
personal gain.
4
With limited exceptions not relevant here, 22 U.S.C. § 4010(a)
provides that
whenever the Secretary decides . . . to separate, on
the basis of misconduct, any member of the
[foreign] service . . . who . . . is serving under a
career appointment . . . , the member may not be
separated from the Service until the member
receives a hearing before the Foreign Service
Grievance Board and the Board decides that cause
for separation has been established, unless the
member waives . . . the right to such a hearing.”
22 U.S.C. § 4010(a)(2)(A); see also 3 F.A.M. § 4365(a) (“A
separation-for-cause hearing before the Foreign Service Grievance
Board will be held . . . for those employees who are entitled to and
do not waive such a hearing.”).
6
2007, Henwood formally terminated Hampton’s
employment. 5
Hampton filed a formal complaint of discrimination with
the Department on June 11, 2007. He then filed suit in the
district court on December 6, 2007, alleging various claims
under Title VII. On January 13, 2011, the district court
granted the Department summary judgment on nine of
Hampton’s ten counts, including his race discrimination
claim. 6 As the district court explained in its order denying
Hampton’s motion for reconsideration, Hampton “failed [to]
raise a material dispute of fact as to whether USDA’s
proffered reason for terminating [Hampton] (namely, that
[Hampton] was found to have submitted falsified
reimbursement requests) was pretextual.” Hampton v.
Vilsack, 791 F. Supp. 2d 163, 167 (D.D.C. 2011). The district
court concluded that despite the evidence of Miller’s racial
slur, Miller’s involvement in Hampton’s termination was
“ ‘too remote, purely contingent, or indirect’ to constitute the
proximate cause of the harm to [Hampton].” Id. at 168.
(quoting Staub v. Proctor Hosp., 131 S. Ct. 1186, 1192
(2011)).
Hampton timely appealed the district court’s grant of
summary judgment and denial of reconsideration thereof.
Hampton’s appeal “concerns only his allegation that race was
a motivating factor in his termination.” Appellant’s Br. 3.
5
The FSGB did not issue its final decision until June 2007.
6
The district court denied summary judgment on Hampton’s
claim that the Department retaliated against him by denying him a
foreign assignment. Hampton and the Department eventually
stipulated to a dismissal with prejudice on that claim.
7
II.
We review a grant of summary judgment de novo. Bush
v. District of Columbia, 595 F.3d 384, 387 (D.C. Cir. 2010).
Summary judgment is appropriate only when “there is no
genuine issue as to any material fact.” McCready v.
Nicholson, 465 F.3d 1, 7 (D.C. Cir. 2006) (quoting Fed. R.
Civ. P. 56(c)). A genuine issue of material fact exists if the
evidence, “ ‘viewed in a light most favorable to the non-
moving party,’ ” could support a reasonable jury’s verdict for
the non-moving party. Id. (quoting Tao v. Freeh, 27 F.3d
635, 638 (D.C. Cir. 1994)).
Under Title VII, it is “an unlawful employment practice
for an employer . . . 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 [or] color.”
42 U.S.C. § 2000e-2(a)(1). To establish an “unlawful
employment practice,” it is sufficient that “race [or] color . . .
was a motivating factor for any employment practice, even
though other factors also motivated the practice.”
Id. § 2000e-2(m); see also Desert Palace, Inc. v. Costa, 539
U.S. 90, 101 (2003) (to make out Title VII claim, “plaintiff
need only present sufficient evidence for a reasonable jury to
conclude . . . that race [or] color . . . was a motivating factor
for any employment practice” (quotation marks omitted)).
Where, as here, “an employee has suffered an adverse
employment action and an employer has asserted a legitimate,
non-discriminatory reason for the decision,” the district court
must resolve 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
8
intentionally discriminated against the
employee on the basis of race [or] color?
Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.
Cir. 2008).
In answering this question, sufficient 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. District of Columbia, 298 F.3d 989, 992-93
(D.C. Cir. 2002) (quoting Aka v. Washington Hosp. Ctr., 156
F.3d 1284, 1289 (D.C. Cir. 1998) (en banc)). Significantly
here, “evidence of a subordinate’s bias is relevant where the
ultimate decision maker is not insulated from the
subordinate’s influence.” Griffin v. Washington Convention
Ctr., 142 F.3d 1308, 1312 (D.C. Cir. 1998).
Hampton’s primary argument is that, because FAS policy
prevented Henwood from imposing a sanction more severe
than the sanction Miller proposed, Miller’s alleged racial
animus was a motivating factor in Henwood’s decision to
terminate Hampton. While Miller’s proposed sanction
created a ceiling on the sanction that Henwood could impose,
it did not create a floor. See 3 F.A.M. 4367(a) (if termination
is proposed, deciding official “may decide to . . . [w]ithdraw
the charges,” or “[a]dmonish,” “[r]eprimand,” “[s]uspend” or
terminate the employee). 7 That is, Henwood was free to
7
If the proposed sanction were either a reprimand or a
suspension, it would also act as a ceiling—but not a floor—on the
sanction the deciding official can impose. See 3. F.A.M. § 4345(a)
(if reprimand is proposed, deciding official “will decide to . . .
[w]ithdraw the charges,” or “[a]dmonish” or “[r]eprimand the
9
depart downward from Miller’s proposed sanction if he
decided, based on his independent review of the evidence,
that termination was unwarranted. Henwood concluded,
however, that termination was warranted given “the nature
and seriousness of the . . . [c]harges . . . and their relation to
the duties and responsibilities of [Hampton’s] position.”
Letter from Roy Henwood to Karl Hampton at 5 (Apr. 25,
2006). As Henwood noted, Hampton’s position entails
“work[ing] with little or no supervision and [having]
extensive contact with the public” and “[t]herefore[] a great
deal of trust is placed on [Hampton] and utmost integrity is
expected.” Id. Because Hampton’s conduct made “the
agency [] los[e] all faith and confidence that [Hampton] could
be trusted to perform ethically or with good judgment,”
Henwood concluded that termination was “a reasonable
response to the sustained charges, and that [Hampton’s]
removal will promote the agency’s efficiency of service.” Id.
Moreover, nothing in the record suggests that Henwood’s
“stated reason [for terminating Hampton] was not the actual
reason and that the [Department] intentionally discriminated
against [Hampton] based on his race.” 8 Brady, 520 F.3d at
employee”); id. § 4355(a) (if suspension is proposed, deciding
official “will decide to . . . [w]ithdraw the charges” or
“[a]dmonish,” “[r]eprimand” or “[s]uspend the employee for a
specified period of time not to exceed the period proposed”).
8
Although Hampton attempts to challenge before us the factual
basis of the four charges that led to Henwood’s decision, see Reply
Br. 15-19, his challenge is misplaced. In a Title VII action, “[t]he
question [before us] is not whether the underlying . . . incident[s]
occurred; rather, the issue is whether the employer honestly and
reasonably believed that the underlying . . . incidents[s] occurred.”
Brady, 520 F.3d at 496 (emphasis in original). It is undisputed that
Henwood believed the underlying misconduct occurred. The
FSGB’s determination that the Department established “by a
10
495. Assuming, as we must, that Miller’s April 2002 remark
manifested some racial animus toward Hampton, Hampton
introduced no evidence that Miller’s animus infected
Henwood’s recommendation or decision, made four and five
years later, respectively. To begin with, Miller was in no way
involved in the investigation of Hampton’s alleged
misconduct. Although he formally initiated the investigation,
he did so only after Lipscomb discovered the suspicious hotel
receipt submitted by Hampton and after Henwood expressed
his belief that CRS should investigate the matter. Miller Dep.
at 176-79. Lipscomb had had no dealings with Hampton
before the events in this case, Hampton Dep. at 249; nor is
there any evidence that Miller did anything but follow proper
procedure in reporting Hampton’s misconduct to CRS, Miller
Dep. at 178-79. After turning over the documents to
Maxwell, he took no part in the investigation or in the
preparation of the Report.
preponderance of evidence” that “[Hampton] commit[ed] the acts
he is charged with” amply supports Henwood’s belief, Decision at
3, FSGB, No. 2006-012 (June 6, 2007), and Hampton has offered
no evidence “sufficient to show that [Henwood’s] conclusion was
dishonest or unreasonable,” Brady, 520 F.3d at 496.
If Hampton sought to attack the factual basis of the FSGB’s
decision, he should have sought judicial review of that decision
pursuant to 22 U.S.C. § 4140(a). See 22 U.S.C. § 4140(a) (“Any
aggrieved party may obtain judicial review of a final action of . . .
the Board on any grievance in the district courts of the United
States in accordance with the [judicial review] standards set forth in
[the Administrative Procedure Act], if the request for judicial
review is filed not later than 180 days after the final action of . . .
the Board . . . .”); see also United States v. Paddack, 825 F.2d 504,
508 n.5 (D.C. Cir. 1987) (“Any party aggrieved by a Board
decision may obtain judicial review of that decision in the United
States District Court, which reviews the Board’s decision under the
provisions of 5 U.S.C. § 706 [].” (citation omitted)).
11
Furthermore, the evidence is clear that Henwood—the
deciding official—did not merely rely on Miller’s proposed
sanction in deciding to terminate Hampton. Henwood
conducted an independent review of the evidence. He
provided Hampton an opportunity to respond in writing and
orally to the proposed termination and he even ordered an
additional investigation after Hampton raised several
“reasonable questions” about the charges made against him at
the March 2005 hearing. Maxwell Letter. Ultimately,
Henwood withdrew two of the charges that Miller had
proposed against Hampton: one for lack of evidence and the
other based on evidence Hampton submitted.
In sum, this is not a case in which the deciding official
was “dependen[t] upon [a biased subordinate’s] opinion” or
was “[unable] independently to assess” the basis for
sanctioning an employee. Griffin, 142 F.3d at 1311. On the
contrary, Henwood “made an independent assessment of
[Hampton’s] conduct and concluded that [Hampton’s]
violations of multiple [USDA] employment policies
warranted his termination.” Hall v. Giant Food, Inc., 175
F.3d 1074, 1080 (D.C. Cir. 1999). There is no evidence that
Henwood “was in any way influenced by [Miller]” in
reaching his decision to terminate Hampton. Vickers v.
Powell, 493 F.3d 186, 196 (D.C. Cir. 2007); see also Willis v.
Marion Cnty. Auditor’s Office, 118 F.3d 542, 547 (7th Cir.
1997) (“[W]hen the causal relationship between the
subordinate’s illicit motive and the employer’s ultimate
decision is broken, and the ultimate decision is clearly made
on an independent and a legally permissive basis, the bias of
the subordinate is not relevant.”); cf. Staub, 131 S. Ct. at 1193(“[I]f the employer’s investigation results in an adverse action
for reasons unrelated to the supervisor’s original biased action
. . . , then the employer will not be liable.”). Given
Henwood’s authority to reduce Miller’s proposed sanction
and the absence of any evidence suggesting that Henwood’s
12
termination decision was pretextual or that Henwood “[was]
not insulated from [Miller’s] influence,” Griffin, 142 F.3d at
1312, we believe that Hampton failed to produce sufficient
evidence for a reasonable jury to conclude that he was
terminated because of racial discrimination.
For the foregoing reasons, we affirm the district court’s
grant of summary judgment to the Secretary.
So ordered.