Johnson v. Perez

Citation823 F.3d 701
Decision Date20 May 2016
Docket NumberNo. 15–5034.,15–5034.
PartiesPrince JOHNSON, Appellant v. Thomas E. PEREZ, Secretary, Department of Labor, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

Rani Rolston argued the cause for appellant. On the brief was Alan Lescht.

Damon W. Taaffe, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Vincent H. Cohen, Jr., Acting U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: TATEL and PILLARD, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge PILLARD



, Circuit Judge:

Prince Johnson, an African American temporary employee of the U.S. Department of Labor, sued the Department, claiming that it dismissed him from his position as a Veterans Employment Specialist because of his race in violation of Title VII. The district court saw grounds to doubt the Department's stated justifications for Johnson's dismissal, but granted summary judgment to the Department for want of evidence of racial discrimination. We affirm on the slightly different ground that, on the evidentiary record, no reasonable juror could find that the Department's stated, nondiscriminatory reasons for dismissing Johnson were not its real reasons.


In April 2006, the Department of Labor hired Johnson as a Veterans Employment Specialist within the Veterans Employment and Training Services (VETS) division.1 The Director of Operations and Programs, Gordon Burke, recruited Johnson, a former Army Captain, and hired him into a noncompetitive position for qualified veterans with service-related disabilities. See 5 U.S.C. § 3112

; 5 C.F.R. § 316.402(b)(4). The post was a temporary one with a possibility of permanent employment. 5 U.S.C. § 3112 ; 5 C.F.R. § 316.402(b)(4)

. Pamela Langley, the Division Chief of the Employment and Training Programs Division within VETS, also interviewed Johnson and reviewed his application. Langley then became Johnson's direct supervisor. Director Burke, like Johnson, is African American, and Division Chief Langley is white.

Johnson's career at VETS was short lived. He held the position on a temporary basis, with an extension, for approximately six months before Director Burke terminated his appointment. To Johnson, the new job was a frustrating disappointment. Johnson testified at his deposition that he had assumed he would be given adequate time and training to learn the skills the position required; instead, he felt, he was “set up to fail.” J.A. 192. His supervisors struck him as unfriendly and unreceptive. Johnson's coworkers told a similar story: They told Johnson or averred in connection with discovery in this case that they observed supervisors talk down to Johnson, yell at him, and call him “stupid” or “useless.” J.A. 293, 298. One co-worker found Division Chief Langley “demeaning” in her interactions with Johnson, J.A. 45, another described a general attitude of disrespect toward minority employees within the office, and another observed instances in which Langley or Patrick Hecker, the VETS “Jobs for Veterans” State Grants Lead and a white male, yelled at Johnson.

Johnson's primary responsibility was to assist Hecker to create and update spreadsheets tracking information in the “Jobs for Veterans” grants program that VETS administered. He also worked with Ed Davin, a Performance Specialist on contract to VETS. Burke, Langley, Hecker, and Davin all perceived Johnson as struggling to complete the tasks assigned to him. According to their accounts, they clarified what was expected, identified specific deficiencies, and explained how he could correct them. They authorized Johnson to spend some time at a VETS State Local Office in Maryland to learn more about how the program worked in practice, and they arranged for VETS to sponsor Johnson for training to upgrade his relevant skills. In the face of some disagreement from Johnson about which courses would be most appropriate, the supervisors authorized him to take an Excel training course and sent him to a training conference in Chicago.

Despite what management characterized as efforts to make Johnson's employment work out, in October 2006, Division Chief Langley recommended to Director Burke that Johnson's probationary appointment be terminated. As Langley recounts the situation, her own observations of Johnson's work and the reports of his direct supervisors persuaded her that he should not remain in the position. Langley notified Johnson that she was going to recommend termination of his employment at VETS for failure to perform satisfactorily and for his “unacceptable attitude” when advised of errors in his work product. J.A. 221. Burke agreed with Langley's recommendation. He recounted that he terminated Johnson “based on [his] own dissatisfaction with [Johnson's] argumentative demeanor and his reported lack of performance and argumentative character.” J.A. 207. In the Termination Memorandum Burke issued to Johnson, he outlined the requirements of Johnson's position and then listed the ways in which Johnson's performance had been deficient: He had “not completed satisfactorily” the projects he had been assigned and had shown an “argumentative response and demeanor” when confronted with his poor work. J.A. 473.

After exhausting his administrative remedies, Johnson brought suit in district court, alleging that he was subjected to a hostile work environment based on his race, and that his termination was racially discriminatory in violation of Title VII. Following discovery, the district court granted summary judgment to the government on both claims. Johnson v. Perez, 66 F.Supp.3d 30, 45–46 (D.D.C.2014)

. The Department moved this court for summary affirmance. The court granted the Department's motion in part, affirming judgment on the hostile work environment claim on the ground that, as a matter of law, the incidents Johnson identified in support of that claim “were not ‘sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.’ Johnson v. Perez, No. 15–5034, 2015 WL 5210265 (D.C.Cir. July 1, 2015) (per curiam) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) ). The panel denied summary affirmance as to the discriminatory discharge claim, id., which was then calendared for full briefing and argument to this panel.


We review a district court's grant of summary judgment de novo. Calhoun v. Johnson, 632 F.3d 1259, 1261 (D.C.Cir.2011)

. By the time a party files a summary judgment motion, all parties should have had the opportunity to investigate the case thoroughly and should have done so. In making or opposing a summary judgment motion, a party may no longer rely on the hope of new testimony or additional documents other than what it put before the court. Each party's hand is dealt. The task of the court is to review the factual material the parties present in support of and opposition to the motion, in light of the parties' legal claims and defenses, and assess whether the record contains disputes calling for resolution by a factfinder. In considering a motion for summary judgment, the court views the evidence in the light most favorable to the nonmoving party (here, Johnson) and draws all reasonable inferences in his favor. Id. The court may not make credibility determinations or otherwise weigh the evidence. Id. The court may not, for example, believe one witness over another if both witnesses observed the same event in materially different ways. But if one party presents relevant evidence that another party does not call into question factually, the court must accept the uncontroverted fact.

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)

. That can be the case when, for example, the parties agree about the facts—what happened—and the court accepts the movant's view of the legal implications of those facts, or, as in this case, when a putatively disputed body of evidentiary material could not, even assuming a sympathetic factfinder, reasonably support a finding crucial to the nonmoving party's legal position. A dispute about a material fact is ‘genuine’ ... if the evidence is such that 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). In that circumstance, the summary judgment motion must be denied. Id. A moving party is entitled to judgment, however, if the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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)

. Federal employees' Title VII claims, although authorized by a separate statutory section, are analyzed in the same way as Title VII claims against private employers. See, e.g.,

Borgo v. Goldin, 204 F.3d 251, 255 n. 5 (D.C.Cir.2000). Under the burden-shifting framework of McDonnell Douglas, a Title VII plaintiff seeking to prove disparate treatment through indirect, circumstantial evidence “must first establish a prima facie case of prohibited discrimination.” Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C.Cir.1998) (en banc); see

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Once the plaintiff has done so, the burden then shifts to the defendant to “articulate legitimate, nondiscriminatory reasons for the challenged employment decision.” Aka, 156 F.3d at 1288.

The Department's position is that it terminated Johnson because...

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