Johnson v. Interstate Mgmt. Co.

• Decision Date: 03 March 2017
• Docket Number: No. 14-7164,14-7164
• Citation: 849 F.3d 1093
• Parties: Robert Lee JOHNSON, Appellant v. INTERSTATE MANAGEMENT COMPANY, LLC, doing business as Hamilton Crowne Plaza Hotel, Appellee
• Court: U.S. Court of Appeals — District of Columbia Circuit

849 F.3d 1093

Robert Lee JOHNSON, Appellant

v.INTERSTATE MANAGEMENT COMPANY, LLC, doing business as Hamilton Crowne Plaza Hotel, Appellee

No. 14-7164

United States Court of Appeals, District of Columbia Circuit.

Argued September 21, 2016

Decided March 3, 2017

Ruthanne M. Deutsch, Supervising Attorney, appointed by the court, argued the cause as amicus curiae on behalf of appellant. With her on the briefs were Steven H. Goldblatt, Washington, DC, appointed by the court, and Katherine Connolly, Lauren Ige, and David Kanter, Student Counsel.

Nicholas T. Moraites argued the cause for appellee. With him on the brief was Edward R. Noonan, Washington, DC.

Before: Henderson, Kavanaugh, and Millett, Circuit Judges.

Opinion concurring in part and concurring in the judgment filed by Circuit Judge Millett.

Kavanaugh, Circuit Judge:

Robert Johnson was a cook at a Washington, D.C., hotel managed by Interstate Management Company. Over several years, Interstate repeatedly reprimanded Johnson for a variety of unsanitary cooking and cleaning practices in the hotel kitchen. In 2011, after concluding that Johnson had prepared a serving of breaded chicken with a piece of plastic melted under the breading, Interstate finally decided that enough was enough. Interstate fired him.

Johnson does not believe that his history of unsanitary kitchen practices was the real reason he was fired. Instead, Johnson says that Interstate retaliated against him because he had previously complained (i) to the Occupational Safety and Health Administration about allegedly unsafe workplace conditions at the hotel and (ii) to the Equal Employment Opportunity Commission about alleged employment discrimination by the hotel.

After he was fired, Johnson sued Interstate and raised two claims relevant to this appeal. First , Johnson asserted a retaliation claim under Section 11(c) of the Occupational Safety and Health Act. See 29 U.S.C. § 660(c). Johnson alleged that Interstate fired him in retaliation for his filing of a complaint against Interstate with the Occupational Safety and Health Administration. The District Court dismissed that claim, holding that Section 11(c) does not provide a private cause of action for retaliation claims. Second , Johnson advanced a retaliation claim under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. See 29 U.S.C. § 623(d) ; 42 U.S.C. §§ 2000e-3(a), 12203(a). Johnson alleged that Interstate fired him in retaliation for his filing of a discrimination complaint against Interstate with the EEOC. The District Court granted summary judgment to Interstate on Johnson's EEOC retaliation claim, concluding that Johnson did not present sufficient evidence for a reasonable jury to find that Interstate's stated reason for firing Johnson was a pretext for retaliation.

We agree with the District Court, and we affirm.

I

From 1996 until 2011, Robert Johnson was a cook at the Hamilton Crowne Plaza Hotel in Washington, D.C. The hotel is managed by Interstate Management Company.

In 2007, Johnson started receiving a steady stream of warnings from Interstate about his unsatisfactory job performance. Johnson was cited at different times for incorrectly filling out his time sheets, violating the company's anti-harassment policy, leaving water running in the kitchen, cleaning floor mats inside cooking pots, creating cross-contamination hazards while preparing meat, following improper procedures for thawing fish, and using the wrong ingredients when preparing meals.

The warnings did not do much. In March 2010, Johnson was suspended for undercooking chicken served at a 250-person banquet. He was later reinstated with a "final warning": "Any violation of any standard of conduct will result in immediate termination of employment." Counseling/Disciplinary Record (Mar. 8, 2010), J.A. 522. Johnson's violations nonetheless persisted. Several months after Johnson's reinstatement, Interstate cited Johnson for thawing frozen chicken in a sink, cooling soup improperly, and setting off a fire alarm by allowing too much smoke to accumulate in the kitchen grill.

In February 2011, a hotel employee discovered plastic wrap melted under the breading of a piece of cooked chicken that was served for dinner. Interstate conducted an investigation and concluded that Johnson cooked the chicken with the plastic in it. Relying on the company's investigation and Johnson's documented history of "repeated performance failings," the Human Resources Director at the hotel, Vanessa Peters, fired Johnson. Declaration of Vanessa R. Peters ¶ 8 (Nov. 22, 2013), J.A. 509. By the time Interstate fired Johnson, Johnson had violated company policy on at least 13 separate occasions.

Johnson traces his firing to a different cause. Over the years, Johnson had complained a number of times about Interstate to the Equal Employment Opportunity Commission and to the Occupational Safety and Health Administration. In 2005, 2007, and 2010, Johnson filed discrimination complaints with the EEOC. Those complaints were unsuccessful. In February 2010, Johnson complained to the Occupational Safety and Health Administration about allegedly unsafe working conditions at the hotel, resulting in a $34,200 fine against Interstate.

Johnson says that his complaints to the EEOC and the Occupational Safety and Health Administration, not his infractions in the kitchen, were the real reason he was fired. Therefore, after being fired, Johnson sued Interstate. As relevant here, Johnson raised two different retaliation claims.

First , Johnson alleged that Interstate fired him in retaliation for his filing of a complaint with the Occupational Safety and Health Administration about allegedly unsafe working conditions at the hotel. He brought that claim under Section 11(c) of the Occupational Safety and Health Act. See 29 U.S.C. § 660(c). The District Court dismissed that retaliation claim, concluding that the Act does not provide a private cause of action for retaliation claims.

Second , Johnson alleged that Interstate terminated him in retaliation for his 2010 EEOC complaint, in violation of Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. 29 U.S.C. § 623(d) ; 42 U.S.C. §§ 2000e-3(a), 12203(a). On that claim, the District Court granted summary judgment to Interstate. The District Court ruled that Johnson presented insufficient evidence for a reasonable jury to conclude that Interstate's stated reason for firing Johnson was not its actual reason.

Johnson appealed. Our review of the District Court on both issues is de novo.

II

We first address Johnson's claim that Interstate fired him in retaliation for his filing of a complaint with the Occupational Safety and Health Administration. Johnson brought his retaliation claim under Section 11(c) of the Occupational Safety and Health Act. See 29 U.S.C. § 660(c). Johnson may maintain a claim under Section 11(c) only if Section 11(c) contains a private cause of action.

As relevant here, Section 11(c)(1) prohibits employers from retaliating against employees for reporting violations of the Occupational Safety and Health Act: "No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter." Id. § 660(c)(1).

Section 11(c)(2) supplies a remedy for employees who believe they have been subject to retaliation for reporting a violation of the statute: An employee may complain to the Secretary of Labor. And the Secretary of Labor, after investigating the employee's complaints, may sue the employer in federal court on the employee's behalf. Id. § 660(c)(2). Section 11(c)(2) provides in relevant part:

Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may, within thirty days after such violation occurs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary shall cause such investigation to be made as he deems appropriate. If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, he shall bring an action in any appropriate United States district court against such person.

Id.

Although Section 11(c) affords the Secretary of Labor a cause of action, the text of Section 11(c) does not expressly grant employees a private cause of action for retaliation claims. Therefore, the question is whether a private cause of action is implied by the statute. The answer is no.

Congress creates federal causes of action. If the text of a statute does not provide a cause of action, there ordinarily is no cause of action. To be sure, on rare occasions, the Supreme Court has recognized implied causes of action. To support an implied cause of action, the relevant statute must demonstrate Congress's intent—notwithstanding the lack of an express cause of action—to create a "private right" and a "private remedy." Alexander v. Sandoval , 532 U.S. 275, 286, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001).

The high-water mark for implied causes of action came in the period before the Supreme Court's 1975 decision in Cort v. Ash , 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). But since Cort v. Ash , the Supreme Court has been very hostile to implied causes of action. See, e.g. , Horne v. Flores , 557 U.S. 433, 456 n.6, 129 S.Ct. 2579, 174 L.Ed.2d 406 (2009) ; Sandoval , 532 U.S. at 293, 121 S.Ct. 1511 ; Suter v. Artist M. , 503 U.S. 347, 364, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992) ; Karahalios v. National Federation of Federal Employees, Local 1263 , 489 U.S. 527, 536, 109 S.Ct. 1282, 103 L.Ed.2d 539 (1989) ; Thompson v. Thompson , 484 U.S. 174, 187, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988) ; Massachusetts Mutual Life Insurance Co. v. Russell , 473 U.S. 134, 148, 105...