Allen v. Johnson

Decision Date24 July 2015
Docket NumberNo. 13–5170.,13–5170.
PartiesJanet E. ALLEN, Appellant v. Jeh Charles JOHNSON, Secretary of Homeland Security, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

795 F.3d 34

Janet E. ALLEN, Appellant
v.
Jeh Charles JOHNSON, Secretary of Homeland Security, Appellee.

No. 13–5170.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 25, 2014.
Decided July 24, 2015.


Ellen K. Renaud argued the cause for appellant. With her on the briefs was David H. Shapiro.

795 F.3d 37

Jeremy S. Simon, 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, KAVANAUGH and PILLARD, Circuit Judges.

Opinion

Opinion for the Court filed by Circuit Judge PILLARD.

PILLARD, Circuit Judge:

Plaintiff Janet Allen settled a pair of employment discrimination claims against the Department of Homeland Security, but soon began to suspect that her new supervisor, Kathy Hill, was retaliating against her for having asserted her rights. Allen's next performance rating was lower than she thought it should be, and she was not invited to meetings in which she thought she should be included as part of her job overseeing the internal financial control systems at U.S. Immigration and Customs Enforcement (ICE), an agency within the Department of Homeland Security. Allen filed this suit claiming Hill retaliated against her for the earlier discrimination complaints. The Department moved for summary judgment, asserting that Hill's explanations of her actions were legitimate and non-retaliatory. Hill justified the performance ratings on the ground that Allen, a managerial employee, failed adequately to supervise ICE's specialized satellite offices and external contractors, leading to delays on two projects and a complaint from one of the satellite offices. Hill also attested that Allen was never excluded from meetings at which her presence was required and that, if Allen had thought otherwise, she could have asked to attend meetings, but never did. Allen claimed that her own disagreement with Hill's assessment of her performance and with Hill's decisions about who to include in meetings created triable issues precluding summary judgment. Because we conclude that the proffered facts could not, if presented at trial, support a jury verdict that retaliation was Hill's real motive for the actions of which Allen complains, we affirm the district court's grant of summary judgment in favor of the Department.

I. BACKGROUND

Relevant background to the current retaliation case began over a decade ago, when Allen worked as a Director of Financial Management at ICE, overseeing financial systems there and at five other bureaus within the Department of Homeland Security. Allen v. Napolitano (“Allen I ”), 774 F.Supp.2d 186, 191 (D.D.C.2011). In 2006, Allen filed an EEO complaint alleging a hostile work environment, discrimination on the basis of sex, age, and disability, and retaliation. Id. at 191–92. After Allen filed her first complaint, ICE reassigned her from that position to a posting as Director of Internal Controls in ICE's Office of Assurance and Compliance (OAC). See id. at 192. OAC evaluates and develops plans to improve ICE's internal financial controls and reports the results of internal control testing and other audit activities within the Department. Allen's job at OAC was to supervise certain financial controls tests and functions, including by managing contracts with outside accounting firms. Allen v. Napolitano (“Allen II ”), 943 F.Supp.2d 40, 43–44 (D.D.C.2013). Allen filed a second EEO complaint in 2007 alleging that her reassignment to OAC was retaliatory. See Allen I, 774 F.Supp.2d at 192.

In February 2008, the Department entered into a settlement agreement with Allen resolving her 2006 and 2007 complaints. Id. The settlement obligated ICE to give Allen a step promotion, provide her back pay, attorneys' fees and costs, and,

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based on a list of Allen's accomplishments, change her performance reviews for 2005–2007 to award her the highest performance rating. Id. Kathy Hill, Allen's new supervisor following her reassignment to OAC, held the position of Acting Director of OAC. The Department charged Hill with implementing the performance rating adjustments under the settlement agreement.

In this suit, Allen alleges that Hill and others retaliated against her in violation of Title VII of the Civil Rights Act of 1964 (codified as amended at 42 U.S.C. § 2000e et seq. ), by giving her an unfavorable performance review in 2008 (the fiscal year after the three covered by the settlement), and excluding her from important meetings to which Allen alleges she should have been invited.1

The district court granted summary judgment to the Department. The Department supported its motion by showing that the unfavorable performance ratings were based on Hill's determination that Allen failed adequately to oversee contractors and agency satellite offices whose compliance she supervised, missed deadlines for two projects, and that Hill did not exclude Allen from any meetings at which Hill understood her presence to be warranted. Allen argued that each of the Department's reasons was “unworthy of credence,” see Jones v. Bernanke, 557 F.3d 670, 678 (D.C.Cir.2009) (internal quotation marks omitted), and was put forward as a pretext for intentional retaliation. She disagreed with Hill's assessment of her performance on various projects, and contended, with some support from contractors' employees, that projects she supervised had been discussed at meetings without her. The court held that Allen failed to rebut the Department's justifications for her performance ratings, Allen II, 943 F.Supp.2d at 48–52, and that the claimed exclusions from meetings were not actionable employment decisions, id. at 45–47.

On appeal, Allen challenges the grant of summary judgment on those claims. We review de novo the district court's decision. McGrath v. Clinton, 666 F.3d 1377, 1379 (D.C.Cir.2012).

II. LEGAL STANDARD

Summary judgment is appropriate 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). At summary judgment, the court must avoid weighing the evidence and making credibility determinations. We instead assume all conflicts would be resolved and all inferences drawn in the nonmoving party's favor and inquire whether, on the evidence so viewed, “a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Title VII prohibits federal agencies from discriminating against their employees on the basis of race, color, religion, sex, or national origin, 42 U.S.C. § 2000e–16(a), and forbids retaliation against an employee because she has “opposed any practice made an unlawful employment practice by” Title VII, or because she “made a charge” under Title VII, id. § 2000e–3(a).2 To prove unlawful retaliation,

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an employee must establish three elements: that she made a charge or opposed a practice made unlawful by Title VII, that the employer took a materially adverse action against her, and that the employer took the action because of her protected conduct. McGrath, 666 F.3d at 1380. Our analysis at summary judgment tracks that of the trier of fact at trial. In other words, a plaintiff seeking to defeat summary judgment on her retaliation claim must point to evidence from which a reasonable juror could conclude that the employer took adverse employment action against her in retaliation for her protected activity.

Cases asserting unlawful retaliation in violation of Title VII typically depend on circumstantial evidence of retaliatory motive. Direct evidence of reprisal—such as a statement by a managerial employee that she or he took action because an employee had filed a charge of discrimination—is the exception rather than the rule.3 A Title VII plaintiff may raise a preliminary, circumstantial inference of prohibited motive through the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, a retaliation plaintiff need only show that she engaged in protected activity, that she suffered an adverse employment action, and that there was a causal link between the former and the latter. Hamilton v. Geithner, 666 F.3d 1344, 1357 (D.C.Cir.2012). The function of the prima facie case is to trigger the employer's burden to come forward with its actual legitimate, non-retaliatory reason for the challenged action. If the employer fails to do so, the employee is entitled to judgment.

Once the employer proffers a non-retaliatory reason for the challenged employment action, the burden-shifting framework falls away, and the “central question” becomes whether “the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted nondiscriminatory [or non-retaliatory] reason was not the actual reason and that the employer intentionally discriminated [or retaliated] against the employee.” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir.2008) ; see Jones, 557 F.3d at 678 (applying Brady to retaliation...

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