Joseph v. Leavitt

• Decision Date: 13 September 2006
• Docket Number: Docket No. 05-3348-CV.
• Citation: 465 F.3d 87
• Parties: Gregson JOSEPH, Plaintiff-Appellant, v. Michael O. LEAVITT,<SMALL><SUP>*</SUP></SMALL> Secretary of Department of Health & Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

465 F.3d 87

Gregson JOSEPH, Plaintiff-Appellant, v. Michael O. LEAVITT,^* Secretary of Department of Health & Human Services, Defendant-Appellee.

Docket No. 05-3348-CV.

United States Court of Appeals, Second Circuit.

Argued: April 21, 2006.

Decided: September 13, 2006.

Gregson Joseph, Bronx, NY, pro se.

Kevan Cleary, Assistant United States Attorney, Brooklyn, NY, (Rosslyn R. Mauskopf, United States Attorney; Steven Kim, Assistant United States Attorney, on the briefs), for Appellee.

Before WALKER, Chief Judge, JACOBS and WALLACE, Circuit Judges.^**

J. CLIFFORD WALLACE, Circuit Judge.

On this appeal, Gregson Joseph seeks review of a memorandum and order of the United States District Court for the Eastern District of New York (David G. Trager, Judge) granting summary judgment in favor of the defendant on Joseph's Title VII claim. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the judgment of the district court.

BACKGROUND

Joseph, an African-American male, began working for the Food and Drug Administration (FDA) in Brooklyn, New York, as a Consumer Safety Officer (CSO) in September 1989. [DA 607] The primary role of CSOs is to maintain the safety of the nation's supplies of food, pharmaceutical drugs, blood, and medical devices. [DA 647] CSOs therefore conduct inspections of the manufacturers and suppliers of these products. [DA 647] Joseph performed his duties in a satisfactory manner and his annual reviews ranged from "above average" to "outstanding." [DA 647] Joseph remains employed as a CSO. [DA 657]

On March 14, 2002, the FDA received an anonymous telephone call alleging that Joseph had been using cocaine for the last three years and that he was using a government vehicle to purchase the drug. [DA 225]

On March 20, 2002, police were called to Joseph's residence. [DA 237] Upon their arrival, Julie Douglas, Joseph's girlfriend, reported that Joseph had beaten and stabbed her with a knife. [DA 237-38] Based upon her statement and visible injuries, the two officers arrested Joseph for assault. [DA 237-38, 239-40] Both of the arresting officers believed that Joseph was under the influence of some substance other than alcohol. [DA 237-38, 239-40] Douglas also told the officers that she had used crack cocaine with Joseph on several occasions, and that he was a habitual user of the drug. [DA 240, 248]

Later that day, Douglas telephoned the FDA, and was identified as the March 14 caller. [DA 244] Douglas gave the FDA her name and said she was Joseph's live-in girlfriend. [DA 225] She repeated what she had told the police, asserting that the attack was a result of her having reported Joseph to the FDA. [DA 244]

Joseph was arraigned on felony assault charges on March 22. Shortly after these incidents, the FDA became aware that Joseph had previously been arrested for domestic violence in September 2001. [DA 168]

Joseph was placed on administrative leave, with pay, on March 22. Shortly thereafter the FDA began its investigation. On the advice of his attorney, Joseph refused to speak to the FDA investigators. [DA 228] The FDA suspended its investigation after Joseph refused to cooperate. Joseph, however, remained on paid administrative leave.

The Bronx County District Attorney dismissed the criminal charges against Joseph on September 25, 2002. [DA 260] Following the dismissal, the FDA resumed its investigation of the allegations against Joseph. Joseph testified at a deposition that he witnessed Douglas stab herself with a kitchen knife. [DA 210-11] He denied that he hit Douglas on the head, and said that her head injuries could also have been self-inflicted. [DA 213] After the FDA investigation was concluded, the FDA directed Joseph to return to work on March 3, 2003. [DA 539]

In addition to being placed on administrative leave, Joseph also complained about the FDA's failure to appoint him a Pharmaceutical Specialist, receiving fewer pharmaceutical inspection assignments than he desired, his removal as "Complaints Coordinator," temporary reassignments to other offices within the New York Division, and his being denied requested training on two occasions. The district court held that none of these constituted adverse employment actions.

Joseph also brought retaliation and slander claims, which the district court rejected. Joseph does not challenge the district court's decision rejecting those claims on appeal.

DISCUSSION

I.

A.

We turn first, as we must, to the issue of our jurisdiction. Although neither party has suggested that we lack appellate jurisdiction, we have an independent obligation to consider the presence or absence of subject matter jurisdiction sua sponte. See Travelers Ins. Co. v. Carpenter, 411 F.3d 323, 328 (2d Cir.2005).

Under 28 U.S.C. § 1291, we ordinarily review only final judgments of the district courts. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). In this case, the district court appears to have failed to enter judgment on a separate document, as required by Federal Rule of Civil Procedure 58(a)(1). Nevertheless, the judgment became final 150 days after the order granting summary judgment was entered on the docket. See Fed.R.Civ.P. 58(b)(2)(B). Joseph's notice of appeal, filed on May 20, 2005, was therefore timely. See Fed. R.App. P. 4(a)(2) ("A notice of appeal filed after the court announces a decision or order — but before entry of the judgment or order — is treated as filed on the date of and after the entry"). The "failure to set forth a judgment or order on a separate document when required by Federal Rule of Civil Procedure 58(a)(1) does not affect the validity of an appeal from that judgment or order." See id. 4(a)(7)(B). We therefore have jurisdiction to entertain Joseph's appeal.

B.

We review an order granting summary judgment de novo. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003). We set forth the applicable legal standard for Title VII actions in James v. New York Racing Ass'n:

At the outset, a plaintiff can avoid dismissal by presenting the "minimal" prima facie case defined by the Supreme Court in McDonnell Douglas. This requires no evidence of discrimination. It is satisfied by a showing of membership in a protected class, qualification for the position, an adverse employment action, and preference for a person not of the protected class. By making out this "minimal" prima facie case, even without evidence of discrimination, the plaintiff creates a presumption that the employer unlawfully discriminated, and thus places the burden of production on the employer to proffer a nondiscriminatory reason for its action.... On the other hand, once the employer articulates a non-discriminatory reason for its actions, the presumption completely drops out of the picture. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated [against the plaintiff] remains at all times with the plaintiff. Thus, once the employer has proffered its nondiscriminatory reason, the employer will be entitled to summary judgment (or to the overturning of a plaintiff's verdict) unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination.

233 F.3d 149, 153-54 (2d Cir.2000) (emphasis added) (internal quotations, alteration, and citations omitted).

Central to this appeal is whether Joseph has suffered an "adverse employment action." "A plaintiff sustains an adverse employment action if he or she endures a `materially adverse change' in the terms and conditions of employment." Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000). "An `adverse employment action' is one which is more disruptive than a mere inconvenience or an alteration of job responsibilities." Terry, 336 F.3d at 138 (internal quotations and citation omitted). "Examples of materially adverse changes include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation." Id. (internal quotations, alterations, and citation omitted).

II.

A.

Joseph first argues that he suffered an adverse employment action when he was placed on administrative leave with pay during the pendency of his criminal case and for approximately five months thereafter.

Four of our sister circuits have considered whether placement on administrative leave, with pay, during an investigation constitutes an adverse employment action. Each court held that it did not. See Singletary v. Mo. Dep't of Corr., 423 F.3d 886, 889, 892 (8th Cir.2005) (eighty-nine day suspension pending investigation); Peltier v. United States, 388 F.3d 984, 986, 988 (6th Cir.2004) (administrative leave pending internal investigation and grand jury proceedings); Von Gunten v. Maryland, 243 F.3d 858, 869 (4th Cir.2001) (short administrative leave pending investigation of complaint); Breaux v. City of Garland, 205 F.3d 150, 154-55, 158 (5th Cir.2000) (administrative leave pending Internal Affairs investigations). None of these cases, as the one before us, also involved pending criminal charges.

These circuits have reasoned that the terms and conditions of employment ordinarily include the possibility that an employee will be subject to an employer's disciplinary policies in appropriate circumstances. See, Von Gunten, 243 F.3d at 869 (The "terms, conditions, or benefits of a person's employment do not typically, if ever, include general immunity from the application of basic employment policies or exemption from [an employer's] disciplinary procedures"). We agree that an employee does not suffer a materially adverse change in the terms and conditions of employment where the employer merely enforces its preexisting disciplinary policies in a reasonable manner. The application of the FDA's disciplinary policies to Joseph, without more, does not...