Valentine-Johnson v. Roche

• Decision Date: 22 October 2004
• Docket Number: No. 03-1262.,03-1262.
• Citation: 386 F.3d 800
• Parties: Rennie B. VALENTINE-JOHNSON, Plaintiff-Appellant, v. Dr. James G. ROCHE, Secretary, Department of the United States Air Force, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

386 F.3d 800

Rennie B. VALENTINE-JOHNSON, Plaintiff-Appellant, v. Dr. James G. ROCHE, Secretary, Department of the United States Air Force, Defendant-Appellee.

No. 03-1262.

United States Court of Appeals, Sixth Circuit.

Submitted: August 6, 2004.

Decided and Filed: October 22, 2004.

Appeal from the United States District Court for the Eastern District of Michigan, 238 F.Supp.2d 911, John Feikens, J.

COPYRIGHT MATERIAL OMITTED

Daniel A. Traver, Traver & Walzak, Port Huron, MI, for Appellant.

Vanessa M. Mays, United States Attorney, Detroit, MI, for Appellee.

Before: CLAY and GILMAN, Circuit Judges; O'MALLEY, District Judge.^*

GILMAN, Circuit Judge.

Rennie B. Valentine-Johnson, an African-American woman, joined the United States Air Force in 1984. In 1993, she transferred from an Air Force base in Wyoming to become the Director of Family Readiness at the Selfridge Air Force Base in Michigan. While at Selfridge, Valentine-Johnson filed numerous equal employment opportunity (EEO) complaints that alleged race and sex discrimination, as well as retaliation, all in violation of Title VII of the Civil Rights Act of 1964. The Air Force terminated her employment two years later, purportedly for poor performance.

Valentine-Johnson then sought to pursue her discrimination, retaliation, and termination claims together in a so-called "mixed case." A mixed case is one where a federal employee alleges that she suffered from an adverse agency action appealable to the Merit Systems Protection Board (MSPB), and that the action was also based on discrimination in violation of Title VII. Valentine-Johnson was unsuccessful in navigating the procedural maze for the processing of a mixed case because of erroneous advice given to her by the MSPB Administrative Judge (AJ) hearing her claims and because the MSPB AJ entertained a jurisdictional argument from the Air Force that the Air Force later disavowed.

On the Air Force's motion for summary judgment, the district court dismissed Valentine-Johnson's termination claims because she had failed to exhaust her administrative remedies before the MSPB. The district court also granted summary judgment on Valentine-Johnson's discrimination and retaliation claims because — divorced from her termination claim — she could not establish that she suffered from an adverse employment action. Finally the district court dismissed Valentine-Johnson's hostile work environment claim that she based upon alleged sexual harassment. For the reasons set forth below, we REVERSE the district court's decision to dismiss Valentine-Johnson's discrimination, retaliation, and termination claims and REMAND the case for a new hearing that combines all three of these claims. On the other hand, we AFFIRM the judgment of the district court that dismissed Valentine-Johnson's hostile work environment claim.

I. BACKGROUND

A. Factual background

Valentine-Johnson served for two years as Chief of Family Programs at the Warren Air Force Base in Wyoming. While in Wyoming, she filed an EEO complaint on the basis that she was subjected to racial discrimination. Valentine-Johnson was subsequently promoted to be the Director of Family Readiness at the Selfridge Air Force Base in Michigan. Her transfer to Selfridge in May of 1993 did not begin smoothly. A reservist on the base told her that she was not needed at Selfridge and that she should "move closer to Detroit." In the original itinerary that was provided to her, Valentine-Johnson was to be welcomed by someone of "appropriate rank." She alleges that after the Selfridge personnel learned that she was African American, they decided that her orientation could be handled by a low-level staffer.

In July of 1993, Valentine-Johnson traveled to Robbins Air Force Base in Georgia for training and orientation that was organized by Natalie Bassett, the Manager of Family Readiness at Air Force headquarters. During the visit, Valentine-Johnson told Bassett that she had filed an EEO complaint during her service in Wyoming. Valentine-Johnson alleges that thereafter Bassett "shunned" her. On another occasion when the two women were in a car together, Valentine-Johnson alleges that Bassett, who had had too much to drink, began berating her about the EEO complaint and called her an "uppity black nigger bitch." Valentine-Johnson also alleges that when Bassett came to Selfridge on a subsequent visit, Bassett informed Colonel Thomas Brown, who was Valentine-Johnson's initial supervisor, about the pending EEO complaint and told another officer that he should "watch" her.

When Colonel Brown learned of the Wyoming EEO complaint, Valentine-Johnson alleges that he told her "not to worry" about it, and that if she took care of him, he would take care of her. She contends that Colonel Brown's comment had a sexual overtone because there was allegedly "a parade of women meeting his needs." Valentine-Johnson specifically identified three different women on the base with whom he was allegedly having a sexual relationship.

Valentine-Johnson alleges that Colonel Brown touched her once in August of 1993, when he put his arm around her and walked her down the hall. This incident occurred after Valentine-Johnson had told Colonel Brown that she thought his touching of other women in the office was inappropriate. She therefore felt that Colonel Brown was deliberately showing her "that he could do whatever he wanted to do." Valentine-Johnson filed an EEO complaint about Colonel Brown putting his arm around her. She also alleges that on another occasion Colonel Brown invaded her "personal space" by standing too close, which made her uncomfortable.

Valentine-Johnson and the Air Force signed an agreement on October 21, 1993 to mediate the Wyoming EEO claim. The agreement expressly provided that the mediation was to be kept confidential. When it came time for Valentine-Johnson to travel to Wyoming for the mediation, however, the travel order stated that the purpose of her trip was "EEO Mediation Hearing." Valentine-Johnson claims that disclosing the purpose of her travel breached the confidentiality provision of the mediation process. The order passed through many hands, and the fact that Valentine-Johnson was engaged in an EEO mediation allegedly "spread like wildfire."

According to the Air Force's regulations, Selfridge, as the base where Valentine-Johnson was currently employed, was responsible for paying for her travel to Wyoming. Colonel Brown apparently was unaware of this requirement and, when he observed the information on the travel order, allegedly screamed: "Hell no, I'm not going to pay for the God Damn trip" and "Get her the hell away from me." The trip was ultimately authorized and paid for by Selfridge, but when Valentine-Johnson returned, she alleges that the "harassment" and her "demise" began.

To start with, Colonel Brown said that he would no longer supervise Valentine-Johnson, so Major Mosher took over. Captain Sutton later succeeded Major Mosher. Because Major Mosher and Captain Sutton were of lower rank than Colonel Brown, Valentine-Johnson believed that this was degrading. Captain Sutton then began to schedule regular meetings, which Valentine-Johnson calls "browbeating sessions," about how to improve Valentine-Johnson's performance. The unpleasantness of these sessions for Valentine-Johnson was exacerbated because they occurred after everyone else had left work and the lights and telephones were turned off. Valentine-Johnson had requested that she be able to leave with everyone else at 4:30 p.m., but Captain Sutton refused to let her go at that time.

In her deposition, Valentine-Johnson describes other hostility that she allegedly experienced. She claims that base employee Rita Rozek came into her office on one occasion and cursed her out and that another base employee, Kimberly Fergan, told a training instructor that Fergan "didn't work with black people." Fergan also filed two allegedly false reports with the security police, claiming that Valentine-Johnson had assaulted her. Yet another employee at the base, Carol Shaw, was once alleged to have elbowed Valentine-Johnson. An African-American base employee, H. Manning, approached Valentine-Johnson and told her that he could not talk to her anymore because, if he did, he would be fired. Colonel Brown allegedly told the security police that they should not assist her, so that when she asked for an escort to her building after dark, they refused. Finally, someone at the base spread the false rumor that Valentine-Johnson was carrying a concealed weapon, causing her to be followed leaving her office on one occasion by a reservist carrying a loaded M-16.

Valentine-Johnson was hospitalized for depression and stress in December of 1993. She filed the first of 29 complaint letters with the EEO grievance office at Selfridge in January of 1994. Less than a week later, Valentine-Johnson and her husband had an "off-the-record" meeting with Colonel Brown and another officer. According to Valentine-Johnson's husband, Colonel Brown said that they were meeting about "what it will take to make this EEO stuff go away." Colonel Brown allegedly told Valentine-Johnson that "you are not going to get any help as long as you continue this EEO complaint." The meeting ended when Valentine-Johnson asked Colonel Brown for his opinion about interracial marriage, to which he replied that he was "shocked" that she had married a white man. (Roy Johnson, whom Valentine-Johnson married in September of 1993, is white.)

Valentine-Johnson alleges that she found it impossible to do her job. She claims that she was not given a job description or the material and personnel resources that she needed. The computer that was designated for her office sat on Colonel Brown's desk for 10 months. She was told that she was to supervise three people, but when she tried to reprimand them for partying, Colonel Brown said that they did not work for her. Roy Johnson, who...