Danita Walker v. Jeh Johnson , 798 F.3d 1085 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 23, 2015 Decided August 18, 2015
No. 14-5035
DANITA M. WALKER,
APPELLANT
v.
JEH CHARLES JOHNSON, SECRETARY OF HOMELAND SECURITY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cv-00816)
Ellen K. Renaud argued the cause for appellant. With her
on the briefs were David H. Shapiro and Richard L. Swick.
Javier M. Guzman, Assistant U.S. Attorney, argued the
cause for appellee. On the brief were Ronald C. Machen Jr.,
U.S. Attorney at the time the brief was filed, and R. Craig
Lawrence and Jane M. Lyons, Assistant U.S. Attorneys.
Before: MILLETT and PILLARD, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge PILLARD.
2
PILLARD, Circuit Judge: Danita Walker, an African
American woman, sued her employer, the U.S. Department of
Homeland Security, claiming under Title VII that her white
supervisor, Walter LeRoy, took adverse actions against her on
account of her race or because she had previously filed a
discrimination complaint against the Department. The alleged
adverse actions included charging Walker absent without
leave, assigning her an average rating in an annual evaluation,
issuing a letter censuring her for missing work and acting in
what LeRoy described as an unprofessional manner, and
rejecting her application for a promotion. The district court
granted summary judgment to the Department. We affirm
because the record in this case could not reasonably support a
finding that the Department’s stated reasons were a pretext for
discrimination or retaliation.
I.
The summary judgment record shows that Walker
worked from 2005 to 2010 as a GS-12-level employee in a
unit of Immigration and Customs Enforcement (ICE) within
the Department of Homeland Security in Washington, D.C.
Her role there was to develop policies for administering ICE’s
immigration bond program for detained aliens. During most
of Walker’s tenure, the bond management unit consisted of
one supervisor, Walker, and three coworkers: two African
American men and one white woman.
LeRoy joined the bond management unit and became
Walker’s supervisor in March 2008. A month before LeRoy
arrived, Walker had filed an administrative complaint of race-
and sex-based discrimination against the Department, the
allegations of which were wholly unrelated to LeRoy. The
parties mediated and settled those claims in May 2008.
LeRoy learned of the ongoing mediation on April 7, 2008.
3
Walker describes her relationship with LeRoy as difficult
from the outset. She found LeRoy very abrupt towards her,
although not to the point of being rude or disrespectful.
Meanwhile, she observed LeRoy as professional and
courteous towards her coworkers, including two African
American males and one white female. Walker informed
LeRoy in May 2008 that she would need to miss work
occasionally to care for her ailing mother, who was suffering
from Alzheimer’s disease. From March to June, Walker was
tardy or absent from work at least seventeen days without
giving advance notice. LeRoy excused her tardiness and
unscheduled absences during that period.
Starting in late June, LeRoy began what Walker
characterizes as a pattern of unjustified antagonism toward
her. First, on June 25, 2008, LeRoy issued her a Leave
Restriction Letter explaining that her use of unscheduled
leave posed a problem to the unit and that it was difficult to
assign work to her in light of her irregular attendance. The
Letter outlined specific procedures that Walker should follow
when requesting leave, including whom to call and in what
order, and how to identify in her requests the type of leave she
sought. The Letter warned that failure to follow its
procedures could result in a charge of absent without leave
(AWOL).
In October 2008, LeRoy gave Walker her annual
performance evaluation for the 2007-2008 fiscal year. LeRoy
classified Walker’s job performance as within the third-
highest of four possible rating categories—one that made it
unlikely she would receive a discretionary bonus. Walker’s
white female coworker received the highest rating, and her
two African American male coworkers each received the
second-highest.
4
The day she received her performance rating, Walker
contacted an Equal Employment Opportunity (EEO)
counselor and initiated the complaint that led to this litigation.
In the administrative process, Walker alleged sex- and race-
based discrimination and retaliation, but she has since
abandoned her sex discrimination claim.
At the end of October 2008, and again in February 2009,
LeRoy charged Walker as AWOL for what he saw as her
failure to adhere to the leave-request procedures outlined in
her Leave Restriction Letter. When Walker took sick leave,
LeRoy charged, she did not call the people listed in the Letter;
rather, she emailed someone who was filling in for LeRoy
that day. When she needed to tend to an emergency situation
with her mother, LeRoy also faulted Walker for only leaving
him a voicemail and not additionally calling the backup
contacts as required by the Letter. Walker does not deny that
she did not adhere to the Letter’s procedures on those
occasions.
In February 2009, Walker received a Letter of Reprimand
from LeRoy reflecting a determination of ICE’s Discipline
and Adverse Actions Panel. The Reprimand stemmed in part
from Walker’s failure to follow her leave-request procedures.
It also cited an occasion when Walker, while suffering an
asthma attack, interrupted a meeting and gave LeRoy a leave
form in what the Reprimand described as an abrupt, impolite,
and unprofessional manner.
Finally, in July 2009, Walker was denied a promotion to
a position as a Management and Program Analyst. The
vacancy announcement solicited applications from employees
who would qualify as GS-13 or GS-14. When Walker applied
in November 2008, she received a confirmation letter from
the Philadelphia branch of the United States Office of
5
Personnel Management advising that her name had been
referred to the selecting official for consideration, and
identifying the position as GS-0343-13/14. The following
summer, Walker received what appeared to be a standard
form letter from that office reflecting that only GS-14
candidates were being considered for the position, and
advising that her application had been rejected because she
did not have “the required specialized skills needed for this
specialty and grade.” J.A. 196.
In September 2009, LeRoy received a list of eligible
employees from which he was to recommend a selection. All
the candidates on that list were at the GS-14 level, whereas
Walker qualified as only GS-13. Referring to her receipt of
the November referral letter, Walker contends that LeRoy
falsely claimed to have received a candidate list of only GS-
14 employees. LeRoy recommended a white woman, a GS-
14, who was eventually hired, although LeRoy asserts, and
Walker does not dispute, that he did not know the candidates’
races when he selected her.
Walker also points to other incidents that she contends
show LeRoy’s discriminatory and retaliatory motive toward
her. In April 2009, LeRoy sent her an email faulting her for
failing to follow instructions on a work assignment that
Walker believed she had completed in a professional and
responsive manner. In November 2009, in relation to
Walker’s submission of a workers’ compensation claim for
work-related stress, LeRoy responded to an information
request from the Office of Workers’ Compensation denying
that he had ever personally observed her suffering a work-
related injury. Walker viewed that as suggestive of
discrimination, given that she had told him of her work-
related stress and he had seen medical visit documentation of
a stress-related asthma attack.
6
Walker filed suit against the Department in 2011. She
alleged that LeRoy took adverse action against her in the
spring of 2008 on account of her race or because she had
engaged in protected EEO activity. The Department moved
for summary judgment, identifying the legitimate, non-
discriminatory and non-retaliatory reasons it had proffered for
the alleged adverse employment actions and arguing that no
reasonable jury could infer discrimination or retaliation from
the evidentiary record. The district court granted summary
judgment to the Department. Our review is de novo. Aka v.
Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en
banc).
II.
Summary judgment is appropriate when 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).
A movant is entitled to summary judgment when the evidence
is such that a reasonable jury, drawing all reasonable
inferences in the non-movant’s favor, could not return a
verdict for the non-movant. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 255 (1986).
Title VII prohibits the federal government from
discriminating against employees on the basis of race, 42
U.S.C. § 2000e-16(a), or retaliating against them because they
opposed an unlawful employment practice or made a charge
under the statute, id. § 2000e-3(a); see Barnes v. Costle, 561
F.2d 983, 988 (D.C. Cir. 1977) (explaining that Title VII
places the same restrictions on federal agencies as it does on
private employers).
Discrimination and retaliation claims are subject to the
familiar, burden-shifting framework of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Brady v. Office of
7
the Sergeant at Arms, 520 F.3d 490, 493-94 (D.C. Cir. 2008);
Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009). A
plaintiff must first establish her prima facie case. To state a
prima facie case of discrimination, a plaintiff must allege she
is part of a protected class under Title VII, she suffered a
cognizable adverse employment action, and the action gives
rise to an inference of discrimination. Stella v. Mineta, 284
F.3d 135, 145 (D.C. Cir. 2002). For a retaliation claim, the
plaintiff must allege that she engaged in activity protected by
Title VII, the employer took adverse action against her, and
the employer took that action because of the employee’s
protected conduct. Hamilton v. Geithner, 666 F.3d 1344,
1357 (D.C. Cir. 2012).
If the plaintiff clears that hurdle, the burden shifts to the
employer to identify the legitimate, non-discriminatory or
non-retaliatory reason on which it relied in taking the
complained-of action. Holcomb v. Powell, 433 F.3d 889, 896
(D.C. Cir. 2006). Assuming the employer proffers such a
reason, the “central question” at summary judgment becomes
whether “the employee produced sufficient evidence for a
reasonable jury to find that the employer’s asserted non-
discriminatory or non-retaliatory reason was not the actual
reason and that the employer intentionally discriminated or
retaliated against the employee.” Allen v. Johnson, – F.3d –,
No. 13-5170, 2015 WL 4489510, at *3 (D.C. Cir. July 24,
2015) (brackets omitted) (quoting Brady, 520 F.3d at 494);
see also Hamilton, 666 F.3d at 1351.
A plaintiff may support an inference that the employer’s
stated reasons were pretextual, and the real reasons were
prohibited discrimination or retaliation, by citing the
employer’s better treatment of similarly situated employees
outside the plaintiff’s protected group, its inconsistent or
dishonest explanations, its deviation from established
8
procedures or criteria, or the employer’s pattern of poor
treatment of other employees in the same protected group as
the plaintiff, or other relevant evidence that a jury could
reasonably conclude evinces an illicit motive. Brady, 520
F.3d at 495 & n.3. The temporal proximity between an
employee’s protected activity and her employer’s adverse
action is a common and often probative form of evidence of
retaliation. See Hamilton, 666 F.3d at 1357-59; Taylor v.
Solis, 571 F.3d 1313, 1322 (D.C. Cir. 2009). Whether
evidence offered to show that an employer’s explanation is
false itself suffices to raise an inference of unlawful
discrimination or retaliation is a fact-sensitive inquiry. See
Aka, 156 F.3d at 1294 (“[I]t is difficult, if not impossible, to
say in any concise or generic way under what precise
circumstances such an inference will be inappropriate.”). We
undertake that inquiry below.
III.
Walker has failed to identify evidence in the record from
which a reasonable jury could conclude that LeRoy’s
proffered legitimate, non-discriminatory and non-retaliatory
reasons for his actions were pretextual and that his real
reasons were discriminatory or retaliatory.
Like most Title VII plaintiffs—including those whose
claims succeed—Walker lacks direct evidence that her
employer acted with a retaliatory or discriminatory motive.
See Allen, 2015 WL 4489510, at *3 (“Direct evidence of
reprisal . . . is the exception rather than the rule.”). Walker’s
case is somewhat distinctive because she worked in a small
unit with only three coworkers, two of whom were also
African American. By Walker’s own account, her African
American coworkers were not subjected to the kinds of action
that she challenges as racially discriminatory. LeRoy gave
9
those colleagues higher performance ratings and, according to
Walker, was courteous and respectful towards them. The
dearth of comparator evidence within her unit does not
necessarily doom Walker’s claim, but it may well make it
more difficult to raise an inference “strong enough to let a
reasonable factfinder conclude that discrimination has
occurred at all.” Aka, 156 F.3d at 1291; see, e.g., Hall v.
Giant Food, Inc., 175 F.3d 1074, 1080 (D.C. Cir. 1999) (the
fact that three-quarters of a plaintiff’s fellow employees were
older than him “tend[ed] to refute any implication” of age
discrimination).
As factual support for her retaliation claim, Walker relies
on the same allegations of antagonism that she points to in
support of her discrimination claim, plus the temporal
proximity between LeRoy learning of Walker’s EEO activity
on April 7 and his issuing the Leave Restriction Letter on
June 25. No inference of retaliation arises on that basis here.
We previously rejected as “untenable” “an inference of
retaliatory motive based upon the ‘mere proximity’ in time”
between an employee filing a lawsuit, and discipline for
unexcused absence two and one-half months later. Taylor,
571 F.3d at 1322. The conduct of which Walker complains
was not a sudden or marked change. To the contrary, even
after LeRoy became aware that Walker had a pending EEO
claim, he excused each of Walker’s seventeen unscheduled
absences or late arrivals. More than three months then passed
before he took any other action that Walker characterizes as
adverse or retaliatory.
Walker thus recognizes that “the heart of [her] case is the
evidence raising an inference of pretext.” Appellant Br. 13.
She argues that she has shown that LeRoy’s stated
explanations were false, and that a reasonable jury could thus
conclude that the actual reason for his actions was racial bias
10
or retaliation. She emphasizes our recognition in past cases
that evidence that the employer’s stated reason is pretextual
can be sufficient in itself to give rise to an inference of
discrimination or retaliation. See, e.g., George v. Leavitt, 407
F.3d 405, 413 (D.C. Cir. 2005); Aka, 156 F.3d at 1292.
Walker is correct that a plaintiff is not “presumptively
required to submit evidence over and above [evidence of
pretext] in order to avoid summary judgment.” Aka, 156 F.3d
at 1292. For instance, “[if] the only reason an employer
offers for firing an employee is a lie, the inference that the
real reason was a forbidden one . . . may rationally be drawn.”
Shager v. Upjohn Co., 913 F.2d 398, 401 (7th Cir. 1990).
Even then, however, “the inference is not compelled.” Id.
Because such judgments are contextual, “the plaintiff
cannot always avoid summary judgment by showing the
employer’s explanation to be false.” Aka, 156 F.3d at 1292;
see also, e.g., Sheridan v. E.I. DuPont de Nemours & Co., 100
F.3d 1061, 1066-67 (3d Cir. 1996) (en banc) (“[D]isbelief of
the defendant’s proffered reasons [is a] threshold finding[],
beyond which the jury is permitted, but not required, to draw
an inference leading it to conclude that there was intentional
discrimination.”). The evidence of record must be such that a
reasonable jury could not only disbelieve the employer’s
reasons, but conclude that the real reason the employer took a
challenged action was a prohibited one. We thus held that an
employer’s “admi[ssion] to having lied” about why it failed to
hire a black applicant, together with evidence that the
employer lacked knowledge about the applicant’s experience
and that its hiring practices “were generally inhospitable to
minorities,” could support an inference that the employer was
hiding a true, discriminatory motive. Colbert v. Tapella, 649
F.3d 756, 760 (D.C. Cir. 2011).
11
The evidence on which Walker relies in this case could
not support a finding that the employer’s proffered reasons
were untrue, and thus, a fortiori, could not support an
inference that her employer was hiding a prohibited motive.
Walker attributes her “achieving expectations” performance
rating to her race because, in her view, she “was doing so
much more than [she] needed to do in [her] position and [she]
was going out of [her] way above and beyond,” and “there
was absolutely no other reason for [LeRoy] not to
acknowledge all the effort that [she] put forth.” J.A. 306-07
(Walker Dep.). LeRoy’s rating of Walker was, however,
equivalent to the “fully successful” rating she received from a
different supervisor the preceding year under the
Department’s old rating system. Walker also identifies
nothing in the record suggesting that LeRoy did not genuinely
and reasonably believe he made the right decision in the
performance rating. Assessment of job performance often
involves myriad contestable judgments, but Walker points to
nothing other than her own opinion of her performance to
dispute LeRoy’s evaluation. In light of the other evidence in
this case, including Walker’s acknowledged absences and
LeRoy’s determination that her unreliable attendance was
interfering with his ability to manage work flow, Walker’s
own personal opinion is inadequate by itself to create an issue
for the jury. See Vatel v. Alliance of Auto. Mfrs., 627 F.3d
1245, 1247 (D.C. Cir. 2011) (“It is settled that ‘it is the
perception of the decision maker which is relevant, not the
self-assessment of the plaintiff.’” (quoting Hawkins v.
PepsiCo, Inc., 203 F.3d 274, 280 (4th Cir. 2000))).
Walker also invokes what she calls LeRoy’s inconsistent
accounts of an incident, cited in the Letter of Reprimand, in
which Walker came into a meeting to give LeRoy a leave slip.
Walker argues that variation between the respective
descriptions of the incident offered by LeRoy, other
12
participants in the meeting, and the Letter of Reprimand
render LeRoy’s explanation implausible and would permit a
reasonable juror to infer that he was covering up an unlawful
motive. “[S]hifting and inconsistent justifications are
‘probative of pretext.’” Geleta v. Gray, 645 F.3d 408, 413
(D.C. Cir. 2011). Here, however, there are only minor
variations in the descriptions—Walker “drop[ped]” or “tossed
(with emphasis)” or “swiftly placed” or “slammed” the leave
slip on the desk—and every account describes Walker as terse
and abrupt. J.A. 150-52, 458. Such fine descriptive
differences between materially consistent accounts, without
more, do not tend to make the accounts unworthy of belief, let
alone support an inference of discrimination or retaliation.
Walker also asserts that there is a material issue of fact in
dispute over whether her name was among those referred to
LeRoy for his hiring recommendation. She contends that
evidence showing that she, qualifying for a GS-13 position,
was identified as a potential candidate gives the lie to
LeRoy’s explanation that only GS-14 candidates were
considered. Walker contends that he was not being truthful
about the composition of the list and the real reason that he
did not recommend Walker was her race or EEO activity. Her
only evidence in that regard is a November 2008 message
from a Philadelphia personnel office, which stated that her
application was received and her name had been referred for
further consideration. The Philadelphia office, however,
passed over Walker’s application for lack of requisite
qualifications in July 2009, two months before LeRoy
received the list and made his decision. There is thus no basis
for any reasonable inference that Walker’s name was on the
list that LeRoy received for consideration when he made his
decision in September 2009. Walker points to an unchecked
box on the selection form that contemplates the possibility of
the official making a choice based on something other than
13
the preceding list of candidates. The box that was checked,
however, reflects that the selection was made from the list.
Walker’s mere speculation that LeRoy could also have had in
front of him a list of GS-13 candidates with her name on it
does not present a genuine dispute of material fact.
Walker asserts that LeRoy sought to curtail her ability to
care for her ailing mother by exercising his discretion to
charge her AWOL when she took leave to care for her mother
in an emergency. Putting aside that the record does not show
that LeRoy was aware of the details of that situation, and that,
as Walker acknowledges, LeRoy had excused past occasions
on which Walker was absent without notice and later asserted
that she was away to care for her mother, Walker’s contention
at most supports a conclusion that LeRoy was willing to
enforce procedures for obtaining leave authorization; it does
not impugn the veracity of LeRoy’s reason or evince unlawful
motive.1
For all of those reasons, we affirm the judgment of the
district court that Walker failed to point to evidence capable
of supporting an inference of discrimination or retaliation.
Two portions of the district court’s opinion concerning
whether the alleged employment actions were cognizably
adverse warrant some clarification. First, to the extent that
the district court suggested that Walker was obligated to make
a “threshold showing” that her 2008 performance rating was
1
Walker makes passing reference to a white man whose requests
for leave had been approved, but she could not provide any details
surrounding his situation that might show that she was similarly
situated to him, and she could not say whether LeRoy ever
supervised him.
14
lowered from (and not equivalent to) the prior year’s for it to
qualify as cognizably adverse, see J.A. 64, that suggestion
should not be taken to insulate from challenge a
discriminatory or retaliatory denial of a deserved rise in
performance rating. Whether an assessment is adverse does
not hinge on whether it was lowered; rather, the question is
whether discrimination or retaliation caused a significant,
tangible harm. See Douglas v. Donovan, 559 F.3d 549, 552-
53 (D.C. Cir. 2009). Proof that a rating unchanged from a
prior period was nonetheless materially adverse could be
difficult, but cannot categorically be ruled out. An employee
whose volume and quality of work demonstrably improved,
or who had significant difficulties at work in the prior period
that she had overcome, might fairly deserve a significantly
improved rating and would be materially harmed if
discrimination prevented appropriate recognition.
Second, insofar as the district court suggested that, even
if LeRoy had acted with an illicit motive, that motive was
rendered inoperative because it was the disciplinary
committee, not LeRoy, that issued the Letter of Reprimand,
and Walker did not establish that the committee knew of her
race or prior EEO activity, see J.A. 65, 73, the court
erroneously overlooked established law on “cat’s-paw”
discrimination. Under a cat’s-paw theory, a formal decision
maker may be an unwitting conduit of another actor’s illicit
motives. See Griffin v. Wash. Convention Ctr., 142 F.3d
1308, 1311-12 (D.C. Cir. 1998); see also Staub v. Proctor
Hosp., 562 U.S. 411, 421 (2011) (“[A] supervisor’s biased
report may remain a causal factor if the [ultimate decision
maker’s] independent investigation takes it into account
without determining that the adverse action was, apart from
the supervisor’s recommendation, entirely justified.”);
Hampton v. Vilsack, 685 F.3d 1096, 1101-02 (D.C. Cir.
2012). If the disciplinary committee was independent of and
15
insulated from LeRoy’s influence, that break in the chain
would have rendered inoperative any illicit motive LeRoy
might have had regarding the discipline. If, however, LeRoy
played a role informing the committee about Walker and her
conduct, the committee becomes “the conduit of [his]
prejudice—his cat’s-paw.” Griffin, 142 F.3d at 1311-12
(quoting Shager, 913 F.2d at 405); see also Staub, 562 U.S. at
421-22. Because it appears that LeRoy played an integral role
in informing the disciplinary committee, we do not rely on the
theory that its action rendered LeRoy’s motive irrelevant.
* * *
Plaintiffs may survive summary judgment based solely
on evidence of pretext when the evidence is such that a
reasonable jury not only could disbelieve the employer’s
reasons, but also could conclude that the employer acted, at
least in part, for a prohibited reason. The evidence in this
case, however, could not support a finding of pretext. We
therefore affirm the judgment of the district court.
So ordered.