Hampton v. Vilsack, 11-5194

• Decision Date: 13 July 2012
• Docket Number: No. 11-5194,11-5194
• Parties: KARL HAMPTON, APPELLANT v. TOM VILSACK, SECRETARY, UNITED STATES DEPARTMENT OF AGRICULTURE, APPELLEE
• Court: U.S. Court of Appeals — District of Columbia Circuit

KARL HAMPTON, APPELLANT v. TOM VILSACK, SECRETARY, UNITED STATES DEPARTMENT OF AGRICULTURE, APPELLEE

No. 11-5194

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 7, 2012

Decided July 13, 2012

Appeal from the United States District Court

for the District of Columbia

(No. 1:07-cv-02221)

Michael J. Kator argued the cause for the appellant. Andrea Goplerud entered an appearance.

Jane M. Lyons, Assistant United States Attorney, argued the cause for the appellee. Ronald C. Machen, Jr., United States Attorney, and R. Craig Lawrence, Assistant United States Attorney, were on brief. Christian A. Natiello, Assistant United States Attorney, entered an appearance.

Before: HENDERSON and TATEL, Circuit Judges, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: Karl Hampton (Hampton) appeals the district court's grant of summary judgment to Tom Vilsack (Secretary), Secretary of the United States Department of Agriculture (Department, USDA), on a race discrimination claim he brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. See Hampton v. Vilsack, 760 F. Supp. 2d 38 (D.D.C. 2011). For the reasons set forth below, we affirm the district court.

I.

Hampton is a black male who began working in the Department's Foreign Agricultural Service (FAS) in 1987.¹ Hampton is no stranger to litigation against the Department. He joined a class action against USDA in 1991 and filed an Equal Employment Opportunity complaint against USDA in 1996. Both cases related to racially discriminatory employment practices and both settled. From March 2002 to June 2002, Hampton was detailed to the Executive Office of the President. In April 2002, Dale Miller (Miller), Hampton's first-line supervisor at FAS, used a racial epithet in describing Hampton's detail to another FAS employee.

Hampton had been the subject of two USDA investigations before the investigation at issue here. In April 2002, a USDA employee informed Miller that he had discovered sexually explicit materials in the printer tray of a USDA printer. The USDA Human Resources Division and Computer Security Office conducted an investigation and determined that the materials were printed from Hampton's computer. Acting on a Department employee relations specialist's recommendation, Miller proposed a fourteen-daysuspension. Hampton contested the suspension. Ellen Terpstra, a USDA administrator and the deciding official, ultimately sustained two of the three charges against Hampton and reduced his suspension to seven days. Later, in June 2003, FAS's human resources department initiated another investigation involving Hampton, this one alleging that Hampton had a conflict of interest resulting from a food processing company he incorporated in 1998. The investigation—still ongoing in 2004—revealed that Hampton had failed to disclose his financial interest in the company to USDA as required by its ethics regulations.

In early 2004, Hampton submitted for reimbursement a copy of a hotel receipt. USDA employee Christine Lipscomb processed the reimbursement request and, per USDA procedure, asked Hampton to submit the original receipt. Hampton submitted what he said was the original but Lipscomb noticed what she believed were handwritten changes on the receipt. Lipscomb then contacted the hotel to obtain the original receipt. Based on her review of the receipt provided by the hotel and the receipt Hampton submitted, Lipscomb concluded that Hampton had altered the receipt. She then brought the matter to Miller's attention who in turn showed the receipts to Roy Henwood (Henwood), Miller's supervisor and Hampton's second-line supervisor.² Henwood believed that the matter should be referred to the Department's Compliance Review Staff (CRS)—Miller agreed and turned over the receipts to Richard Maxwell, a CRS security officer with twenty-five years' experience as an Army criminal investigator.

In his Report of Investigation (Report), Maxwell concluded, inter alia, that Hampton had submitted for reimbursement nine falsified receipts from hotels at which he stayed during six different business trips. The receipts totaled over $1,400, and were altered—some by pen and others typed in a format inconsistent with each hotel's bona fide receipts— to indicate that Hampton had spent additional nights, thereby increasing the reimbursement amount. The Report was based on eighteen witness interviews, copies of records from Hampton's government-issued credit card, hotel receipts and travel vouchers that Hampton submitted. The results of the investigation relating to Hampton's hotel receipts as well as the earlier conflict of interest investigation were sent to Lucy Muir, a USDA employee relations specialist who had had no earlier contact with Hampton. Muir believed Hampton should be terminated. She discussed the matter with Miller who was the proposing official for any sanction imposed on Hampton. After reviewing the Department's table of penalties, Miller likewise determined that termination was the appropriate sanction. Muir drafted and Miller signed a proposal that Hampton be terminated.

Hampton responded to his proposed termination in writing and at a pre-termination hearing before both Muir and Henwood in March 2005. Shortly after the hearing, Henwood asked Maxwell to investigate further several "reasonable questions" that Hampton raised regarding some of the charges against him. Letter from Roy Henwood to Richard Maxwell and Robert Huttenlocker (May 3, 2005) (Maxwell Letter). Specifically, Henwood asked Maxwell to obtain the original receipts from the hotels or, alternatively, to supplement the record with confirmation from each hotel manager that each receipt had been altered or was otherwise fraudulent. Interviews with managers and employees of the hotels for which Hampton submitted receipts revealed that the receipts were not valid. The interviews also revealed that Hamptonthreatened legal action against at least one hotel manager if he cooperated with CRS investigators.

On April 25, 2006, Henwood recommended Hampton's termination, sustaining four of the six charges set forth in Miller's termination proposal: Hampton (1) submitted false receipts for reimbursement; (2) failed to properly remit to USDA a credit issued by a hotel to his government-issued credit card; (3) failed to report all required financial interests; and (4) provided false information to CRS as part of an official investigation.³ Henwood's recommendation was then forwarded to the Foreign Service Grievance Board (FSGB).⁴ After a hearing, the FSGB determined that the Department had established cause for Hampton's termination. On May 1,2007, Henwood formally terminated Hampton's employment.⁵

Hampton filed a formal complaint of discrimination with the Department on June 11, 2007. He then filed suit in the district court on December 6, 2007, alleging various claims under Title VII. On January 13, 2011, the district court granted the Department summary judgment on nine of Hampton's ten counts, including his race discrimination claim.⁶ As the district court explained in its order denying Hampton's motion for reconsideration, Hampton "failed [to] raise a material dispute of fact as to whether USDA's proffered reason for terminating [Hampton] (namely, that [Hampton] was found to have submitted falsified reimbursement requests) was pretextual." Hampton v. Vilsack, 791 F. Supp. 2d 163, 167 (D.D.C. 2011). The district court concluded that despite the evidence of Miller's racial slur, Miller's involvement in Hampton's termination was " 'too remote, purely contingent, or indirect' to constitute the proximate cause of the harm to [Hampton]." Id. at 168. (quoting Staub v. Proctor Hosp., 131 S. Ct. 1186, 1192 (2011)).

Hampton timely appealed the district court's grant of summary judgment and denial of reconsideration thereof. Hampton's appeal "concerns only his allegation that race was a motivating factor in his termination." Appellant's Br. 3.

II.

We review a grant of summary judgment de novo. Bush v. District of Columbia, 595 F.3d 384, 387 (D.C. Cir. 2010). Summary judgment is appropriate only when "there is no genuine issue as to any material fact." McCready v. Nicholson, 465 F.3d 1, 7 (D.C. Cir. 2006) (quoting Fed. R. Civ. P. 56(c)). A genuine issue of material fact exists if the evidence, " 'viewed in a light most favorable to the non-moving party,' " could support a reasonable jury's verdict for the non-moving party. Id. (quoting Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994)).

Under Title VII, it is "an unlawful employment practice for an employer . . . to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race [or] color." 42 U.S.C. § 2000e-2(a)(1). To establish an "unlawful employment practice," it is sufficient that "race [or] color . . . was a motivating factor for any employment practice, even though other factors also motivated the practice." Id. § 2000e-2(m); see also Desert Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003) (to make out Title VII claim, "plaintiff need only present sufficient evidence for a reasonable jury to conclude . . . that race [or] color . . . was a motivating factor for any employment practice" (quotation marks omitted)). Where, as here, "an employee has suffered an adverse employment action and an employer has asserted a legitimate, non-discriminatory reason for the decision," the district court

must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employerintentionally discriminated against the employee on the basis of race [or] color?

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