Matthew McGrath v. Hillary Clinton , 666 F.3d 1377 ( 2012 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 23, 2011 Decided January 27, 2012
No. 10-5043
MATTHEW JOSEPH MCGRATH,
APPELLANT
v.
HILLARY RODHAM CLINTON, SECRETARY OF STATE, IN HER
OFFICIAL CAPACITY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:05-cv-02011)
Leslie D. Alderman, III argued the cause for appellant.
With him on the briefs was William Aramony.
Brian P. Hudak, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Ronald C. Machen, Jr.,
U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Before: ROGERS, GARLAND, and BROWN, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Plaintiff Matthew McGrath
contends that his supervisor at the Department of State gave him
negative performance reviews in retaliation for his opposition to
discriminatory conduct, in violation of Title VII of the Civil
Rights Act of 1964. The district court granted the Department’s
motion for summary judgment and dismissed the case. Because
no reasonable juror could conclude that McGrath’s supervisor
unlawfully retaliated against him, we affirm.
I
McGrath served as a Foreign Service Officer in the State
Department from 1984 until 2004. The events at issue in this
case began in September 2001, when McGrath became unit
chief of the Cultural Programs Division, an office within the
Department’s Bureau of Educational and Cultural Affairs.
McGrath was responsible for supervising six program officers
and two administrative assistants. His difficulties with his own
supervisor, Van S. Wunder III, began soon after McGrath started
his job and accelerated in the spring of 2002, when Wunder sent
him a memorandum on March 8 that sharply criticized his
performance. This memorandum was followed by a negative
Employee Evaluation Report (EER), which both parties agree
was based largely on the March 8 memorandum. A second
negative EER followed the first, identical except that it was
approved by Wunder’s supervisor, who added his own critical
comments.
Soon thereafter, McGrath was involuntarily removed from
his position as unit chief. For several months, he remained
employed by the Department but without an assignment.
Although he was eventually transferred to another unit, he was
terminated altogether in 2004. McGrath alleges, and the
3
Department does not dispute, that the decision to terminate him
was “based in substantial part” on the 2002 EERs. McGrath v.
Clinton, 674 F. Supp. 2d 131, 139 (D.D.C. 2009).
In 2005, McGrath filed a complaint in district court
charging the State Department with, inter alia, retaliating against
him in violation of Title VII, 42 U.S.C. §§ 2000e-3(a),
2000e-16(a).1 McGrath is a white male. The core of his charge
is that Wunder, also a white male, tried to force him to
document performance deficiencies of the only African-
American program officer in the unit, Ms. E.J. Montgomery, for
discriminatory reasons and with an eye to her eventual
termination. According to McGrath, when he refused to do so,
Wunder retaliated by giving him unfavorable employment
reviews that eventually led to his own termination.
The district court found that the Department “provide[d] a
legitimate, non-retaliatory justification for the plaintiff’s
negative evaluation reports and his involuntary curtailment,”
McGrath, 674 F. Supp. 2d at 145, and that McGrath failed to
produce evidence from which a reasonable jury could find the
State Department retaliated against him for taking protected
action, id. at 147. Accordingly, the court granted the
Department’s motion for summary judgment. McGrath now
appeals.2
1
Before filing his complaint in district court, McGrath filed a
complaint with the Equal Employment Opportunity Commission
(EEOC) that alleged similar grievances. The EEOC found in favor of
the State Department on all counts. McGrath v. U.S. Dep’t of State,
EEOC Case No. 100-2003-08249X (May 19, 2005) (J.A. 127-38).
Both parties rely in part on testimony taken during the EEOC
proceedings, which this opinion cites as “EEOC Tr. at __.”
2
In addition to alleging retaliation, McGrath’s complaint raised
several other claims that the district court also dismissed on summary
4
II
We review the district court’s decision to grant summary
judgment de novo. Waterhouse v. District of Columbia, 298
F.3d 989, 991 (D.C. Cir. 2002). The court may grant summary
judgment 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). For a dispute about a material fact to be
“genuine,” the evidence must be such that “a reasonable jury
could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Title VII prohibits federal agencies from discriminating
against their employees based on race or sex. 42 U.S.C.
§ 2000e-16(a). It also makes it unlawful to “discriminate
against” -- i.e., retaliate against -- an employee “because he has
opposed any practice made an unlawful employment practice by
this subchapter.” 42 U.S.C. § 2000e-3(a); see Calhoun v.
Johnson, 632 F.3d 1259, 1261 (D.C. Cir. 2011). To prove
unlawful retaliation, a plaintiff must show: (1) that he opposed
a practice made unlawful by Title VII; (2) that the employer
took a materially adverse action against him; and (3) that the
employer took the action “because” the employee opposed the
practice.3 The State Department does not dispute that the
judgment. A special panel of this court granted the State
Department’s motion for summary affirmance as to all claims other
than the retaliation claim that we address here. See Order, McGrath
v. Clinton, No. 10-5043 (D.C. Cir. Aug. 10, 2010).
3
Although these are often described as the elements that a
plaintiff must show to establish a “prima facie” case of retaliation, see,
e.g., Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009), they are
also the elements that a plaintiff must ultimately prove in order to win
his case. The first and third elements derive from Title VII’s express
statutory language. The second is the Supreme Court’s gloss on the
5
actions it took against McGrath -- giving him poor performance
reviews that eventually resulted in his termination -- were
materially adverse. The following sections address the
remaining two elements of McGrath’s cause of action for
retaliation.
A
Title VII bars federal agencies from retaliating against an
employee because he has opposed “a practice made an unlawful
employment practice” by the statute. 42 U.S.C. § 2000e-3(a);
see Calhoun, 632 F.3d at 1261. We have interpreted this phrase
as extending to a practice that the employee reasonably and in
good faith believed was unlawful under the statute. George v.
Leavitt, 407 F.3d 405, 417 (D.C. Cir. 2005); Parker v. Balt. &
Ohio R.R. Co., 652 F.2d 1012, 1020 (D.C. Cir. 1981); see Clark
Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001) (noting
this interpretation, but declining to rule on its propriety “because
even assuming it is correct, no one could reasonably believe that
the incident recounted . . . violated Title VII”). But if the
practice the employee opposed is not one that could reasonably
and in good faith be regarded as unlawful under Title VII, this
element is not satisfied. See Clark Cnty., 532 U.S. at 271.
McGrath alleges that his specific act of “opposition” was
his resistance to Wunder’s alleged instruction that he document
phrase “discriminate against.” See Burlington Northern & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 56 (2006). Where, as here, the
employer has proffered a non-retaliatory explanation for a materially
adverse employment action, the sufficiency of the plaintiff’s prima
facie case is no longer in issue, and “the only question is whether the
employee’s evidence creates a material dispute on the ultimate issue
of retaliation.” Jones, 557 F.3d at 678; see Kersey v. Wash. Metro.
Area Transit Auth., 586 F.3d 13, 17 (D.C. Cir. 2009).
6
deficiencies in Montgomery’s work -- particularly, her inability
to meet deadlines -- in a manner that McGrath claims was
intended to prepare the way for her termination.4 McGrath
asserts that the instruction was an unlawful employment practice
under Title VII because it was motivated by Montgomery’s race
and gender.
According to McGrath, soon after he started his job in the
Cultural Programs Division in 2001, Wunder spoke to him about
Montgomery’s work. Montgomery suffers from a disability, and
McGrath charges that Wunder told him to start documenting her
job performance with the goal of eventually firing her. When he
refused to do as he was told, McGrath claims that Wunder
shortened the home leave that McGrath had planned to take that
winter. He further alleges that when he returned from leave on
January 7, 2002, Wunder again told him to document
Montgomery’s performance. This admonition was allegedly
repeated at a meeting on March 8, at which Wunder gave him a
memorandum criticizing his performance and said that it would
“reflect badly” on him if he did not begin to document
Montgomery’s deficiencies. McGrath Br. at 6. McGrath
charges that this constituted a threat to give him negative
employment reviews and then to fire him, which is what
ultimately transpired.
4
In the district court, McGrath also cited as “acts of opposition”
complaints he filed with his departmental equal employment officer,
and later with the EEOC. On appeal, however, he stated that these
were not really relevant to the retaliation analysis because they were
filed after Wunder had already sent him the negative March 8, 2002
performance memorandum. As McGrath’s counsel explained at oral
argument: “[B]y March 8, Wunder’s already decided that McGrath is
gone, voluntarily or involuntarily. So anything that happens after
March 8 is irrelevant -- it’s a foregone conclusion that McGrath is
gone.” Oral Arg. Recording at 22:52-23:07.
7
The evidence, however, does not support McGrath’s
allegation that he opposed an employment practice that he could
reasonably have regarded as unlawful under Title VII.
According to McGrath’s testimony at an EEOC hearing, see
supra note 1, he told Wunder that he believed Wunder’s
treatment of Montgomery was racially discriminatory. EEOC
Tr. at 196 (J.A. 824). But McGrath’s unsupported assertion --
whether made to Wunder or anyone else -- neither makes the
accusation true nor makes it reasonable for him to have believed
it was true. McGrath also claimed that Wunder told him: “If
you’re not going to do this [document Montgomery’s
performance deficiencies], then it’s going to reflect badly on
you.” Id. at 193 (J.A. 821). As McGrath describes it, however,
this was at worst a threat to downgrade McGrath’s own
employment review if he refused to follow a management
directive -- an act that Title VII does not bar unless it is
accompanied by unlawful animus. And there is nothing in
McGrath’s description of his conversation with Wunder to
suggest that it was.
When asked at oral argument for his best evidence that
Wunder’s directive was motivated by discrimination, McGrath
pointed to Wunder’s own description of their January 7
exchange regarding Montgomery. See Oral Arg. Recording at
6:50-7:50. That description was as follows:
Q: Did you tell Mr. McGrath to document Ms.
Montgomery’s performance and either say or suggest
that he do so in order to use this information to
terminate her employment? . . . .
A: I did not instruct Mr. McGrath to document Ms.
Montgomery’s performance for the purposes of
possible termination. [In] late December 2001 or early
January 2002, I had a conversation with Mr. McGrath
8
concerning his staff. Mr. McGrath raised the issue of
limitations he perceived in the performance of various
members of his staff, and noted that one of these
limitations concerned Ms. Montgomery, who suffers
from [a] . . . medical condition [that] makes it difficult
for Ms. Montgomery to type, which means that it is
difficult for her to prepare the many written
communications that Program Officers must complete.
. . . I advised Mr. McGrath that EEO regulations
require that appropriate compensation be made for
employees with disabilities, but that if performance
after compensation has been made is still not adequate,
then it was the duty of the supervisor to deal with the
situation. I noted that EEO regulations do not require
that an employee be kept in the same position if that
employee cannot perform at an acceptable level after
compensatory steps have been taken.
Wunder Decl. at 3-4 (J.A. 398-99) (emphases added).
As indicated by the first passage italicized above, it was
McGrath -- not Wunder -- who brought up Montgomery’s
alleged performance limitations. Indeed, two pages later,
Wunder states that he “was not in a position to directly observe
Ms. Montgomery’s performance,” and that, to his “direct
knowledge, there were no major duties that Ms. Montgomery
was not proficient at performing.” Id. at 6 (J.A. 401). This
hardly suggests Wunder was implying that McGrath should
terminate Montgomery, let alone for an unlawful reason.
As indicated by the second italicized passage, it is also clear
that Wunder was not telling McGrath that he should terminate
Montgomery, but rather that he should accommodate her,
advising “that EEO regulations require that appropriate
9
compensation be made for employees with disabilities.” Indeed,
later in the same paragraph Wunder states that he told McGrath:
If Ms. Montgomery was indeed limited in her
performance, then Mr. McGrath had the first line of
responsibility for working with her to identify
compensatory steps that could respond to her physical
condition. I mentioned such examples as providing
voice-recognition software to assist her in drafting
correspondence or shifting duties within the Cultural
Programs Division to lessen the correspondence
requirements on Ms. Montgomery.
Id. at 4 (J.A. 399).
McGrath emphasizes Wunder’s concession that he also told
him that “EEO regulations do not require an employee to be
kept in the same position if that employee cannot perform at an
acceptable level after compensatory steps have been taken.” But
this does no more than correctly state the law under the
Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et
seq. See McFadden v. Ballard Spahr Andrews & Ingersoll,
LLP, 611 F.3d 1, 4 (D.C. Cir. 2010). Moreover, as there was no
suggestion in this exchange that compensatory steps would in
fact be insufficient, these words cannot reasonably be read as
suggesting a plan to terminate Montgomery. Indeed, McGrath
does not dispute that Wunder rated Montgomery as “excellent”
on her own 2002 EER; that Wunder himself took steps to
accommodate her disability by obtaining voice recognition
software; and that Montgomery was still employed in the unit as
of the time the lawsuit was filed. See Def.’s Statement of
Undisputed Facts ¶¶ 135-39 (J.A. 669-70); Pl.’s Statement of
Disputed Facts at 22 (J.A. 740) (no response).
10
Finally, this exchange does not mention -- directly or by
implication -- race, gender, or any other motive prohibited by
Title VII. Even if it could be read as suggesting discrimination
based on disability (and we do not believe it can), such
discrimination is not an act “made unlawful by this subchapter”
-- i.e., by Title VII -- and hence is not subject to its anti-
retaliation provision. Although discrimination based on
disability is made unlawful by the ADA, McGrath’s complaint
relies solely on Title VII and never mentions the ADA or its
anti-retaliation provision, 42 U.S.C. § 12203. In short, there is
nothing in McGrath’s “best evidence” to suggest that the act of
opposition he asserts -- refusing to document Montgomery’s
shortcomings -- had anything to do with opposing a violation of
Title VII.
Asked at oral argument for any other evidence he had
regarding Wunder’s alleged discriminatory animus, McGrath
cited an affidavit by a former program assistant, LaFaye Proctor,
who stated that “Ms. Montgomery later told me that she
complained about Mr. Wunder to the union and that, as a result,
Mr. Wunder . . . had to go to diversity training classes.” Proctor
Aff. at 2 (J.A. 1208). Regardless of whether such a statement by
Montgomery could support the contention that Wunder harbored
racial animus against her, Proctor would not be permitted to
testify about it at trial because -- coming from Proctor’s mouth
-- it would be pure hearsay. “It therefore counts for nothing” in
an opposition to summary judgment. Gleken v. Democratic
Cong. Campaign Comm., 199 F.3d 1365, 1369 (D.C. Cir. 2000);
see Greer v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007).
Montgomery’s own testimony, by contrast, was not that she
went to her union representative because of something Wunder
said or did to her, but rather because she heard “rumors” that he
was going to fire her. EEOC Tr. at 354-55 (J.A. 614). McGrath
concedes, however, that it was he -- not Wunder -- who spread
such rumors. EEOC Tr. at 199 (J.A. 826). (Montgomery also
11
denied knowing anything about Wunder having been sent to
diversity training. EEOC Tr. at 355 (J.A. 614)).5
In sum, because McGrath fails to offer evidence from which
a jury could conclude that he opposed a practice that could
“reasonably be thought” to violate Title VII, he fails to satisfy
the first element of his cause of action. George, 407 F.3d at
417; see Clark Cnty., 532 U.S. at 270.
B
McGrath has no more luck with his effort to establish the
third element of a Title VII retaliation claim: that the employer
took a materially adverse action against the employee “because”
the employee opposed a protected practice. To establish this
element, the employee must proffer evidence from which a
reasonable jury could infer the employer’s retaliatory intent.
Montgomery v. Chao, 546 F.3d 703, 706 (D.C. Cir. 2008).
Although such evidence may be direct, circumstantial, or both,
see McGill v. Munoz, 203 F.3d 843, 845 (D.C. Cir. 2000),
McGrath has proffered none at all.
We have already discussed the principal direct evidence
upon which McGrath relies: his exchange with Wunder
regarding Montgomery. As we have noted, there was nothing in
that conversation from which a jury could reasonably conclude
that Wunder’s subsequent negative reviews of McGrath were in
retaliation for his opposition to protected activity.
5
The remainder of the evidence upon which McGrath relies is
even weaker than the evidence discussed in the text, and even less
closely related to the asserted act of discrimination (against
Montgomery) that McGrath claims to have opposed. Accordingly, it
does not merit further discussion.
12
In the absence of direct evidence of retaliation, we analyze
a plaintiff’s claims under the framework of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Calhoun, 632 F.3d at
1261; Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003).
Where, as here, “the employer has proffered a legitimate, [non-
retaliatory] reason for a challenged employment action, the
‘central question’ is whether ‘the employee produced sufficient
evidence for a reasonable jury to find that the employer’s
asserted [non-retaliatory] reason was not the actual reason and
that the employer intentionally [retaliated] against the
employee” in violation of Title VII. Calhoun, 632 F.3d at 1261
(quoting Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494
(D.C. Cir. 2008)). McGrath’s contention is that the
Department’s rationale for his negative reviews was so patently
pretextual that it justifies an inference that the true reason was
retaliation for his opposition to Wunder’s allegedly unlawful
direction to document Montgomery’s deficiencies.
The State Department’s rationale for McGrath’s poor
reviews, as reflected in the March 8 memorandum and the two
negative EERs, can be boiled down to two principal concerns:
(1) McGrath failed to adequately supervise his staff; and (2) he
botched an important assignment that embarrassed his division.
The record in this case contains detailed descriptions of the
various incidents giving rise to these concerns as well as several
others, and is well documented in the district court’s opinion.
See McGrath, 674 F. Supp. 2d at 134-38.
As to the first concern, McGrath does not dispute that,
shortly after he began serving as unit chief of the Cultural
Programs Division, he ceased holding weekly staff meetings.
See Pl.’s Statement of Disputed Facts ¶ 24 (J.A. 721). By way
of explanation, McGrath says that he did so because he found
the meetings unproductive and thought individual conversations
more useful. But he does not deny that Wunder instructed him
13
to resume the meetings and that he failed to heed that
instruction. McGrath Decl. at 16 (J.A. 1066). Nor does
McGrath dispute that at least three members of his staff
complained to Wunder about his performance as a supervisor,
describing McGrath as generally unresponsive to requests for
guidance or feedback. See EEOC Tr. at 375-78 (J.A. 334-35)
(Kathryn Wainscott); id. at 559-60 (J.A. 457) (Leanne Mella).
Indeed, one employee characterized McGrath’s supervision of
the office as “almost non-existent.” Id. at 297 (J.A. 325) (Susie
Baker).
With respect to the second concern, the State Department
describes an incident in January of 2002, the central facts of
which McGrath again does not dispute. McGrath had been
tasked with arranging a cultural event set for January 20, two
days after he was scheduled to depart for another leave. At the
event, then-Secretary of State Colin Powell was to present jazz
musician Billy Taylor with a “certificate of appreciation” at the
Kennedy Center for the Performing Arts. When Wunder asked
McGrath before he departed whether there were any important
projects that he had not yet completed, McGrath said there were
none. In fact, however, the certificate had not been printed and
the Secretary’s remarks had not been prepared. Again, McGrath
has an explanation: because Taylor had been ill and Secretary
Powell was scheduled to be away that weekend, McGrath says
he concluded that the ceremony was not going to take place.
Unfortunately for McGrath, the event did take place, with
Secretary Powell’s wife and Taylor’s daughter substituting for
the principals. Because McGrath had failed to perform his
assigned tasks, someone else had to hastily prepare remarks for
the Secretary’s wife, and she had to present Taylor’s daughter
with a blank certificate. As Wunder told McGrath in an e-mail
to which McGrath never responded, the matter had “blown up
all the way to the Secretary’s office” and “reflect[ed] very badly
on our office and the bureau.” J.A. 1137.
14
Taken together, and relying on facts that McGrath does not
dispute, these incidents constitute legitimate, non-retaliatory
reasons for the negative employment reviews McGrath received.
McGrath does offer explanations for some of his actions, and he
notes that he made useful contributions on specific programs (a
point his 2002 EERs acknowledge, see J.A. 505, 526). At best,
however, these “responses constitute[] an argument that,
notwithstanding [his] failings, [the Department] should not have
terminated [him] because there were extenuating circumstances
and there were some positive attributes to [his] performance.”
Waterhouse, 298 F.3d at 995. “But courts are without authority
to ‘second-guess an employer’s personnel decision absent a
demonstrably discriminatory motive,’” and McGrath’s
“responses offer[] no grounds for a rational juror to conclude
that the reason [he] was fired was [retaliation] rather than poor
performance.” Id. (quoting Fishbach v. District of Columbia
Dep’t of Corr., 86 F.3d 1180, 1182 (D.C. Cir. 1996) (additional
internal quotation marks omitted)).
III
Because no reasonable juror could find that McGrath
satisfied either of two required elements of Title VII’s cause of
action for unlawful retaliation, the district court’s grant of
summary judgment in favor of the Department of State is
affirmed.