Walker v. Johnson

• Citation: 798 F.3d 1085
• Decision Date: 18 August 2015
• Docket Number: No. 14–5035.,14–5035.
• Parties: Danita M. WALKER, Appellant v. Jeh Charles JOHNSON, Secretary of Homeland Security, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

798 F.3d 1085

Danita M. WALKER, Appellant

v.Jeh Charles JOHNSON, Secretary of Homeland Security, Appellee.

No. 14–5035.

United States Court of Appeals, District of Columbia Circuit.

Argued April 23, 2015.

Decided Aug. 18, 2015.

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

Opinion for the Court filed by Circuit Judge PILLARD.

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.

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.

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 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.

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, nondiscriminatory 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Brady v. Office of 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...