King v. Rumsfeld, 02-1313.

• Citation: 328 F.3d 145
• Decision Date: 08 May 2003
• Docket Number: No. 02-1313.,02-1313.
• Parties: Alfred G. KING, Plaintiff-Appellant, v. Donald RUMSFELD, Secretary, United States Department of Defense, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

328 F.3d 145

Alfred G. KING, Plaintiff-Appellant, v. Donald RUMSFELD, Secretary, United States Department of Defense, Defendant-Appellee.

No. 02-1313.

United States Court of Appeals, Fourth Circuit.

Argued: February 24, 2003.

Decided: May 8, 2003.

COPYRIGHT MATERIAL OMITTED

ARGUED: Susan M. Andorfer, Susan M. Andorfer, L.T.D., Belleville, Illinois, for Appellant. Rachel Celia Ballow, Assistant United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Carolyn P. Carpenter, Carpenter Law Firm, Richmond, Virginia, for Appellant. Paul J. McNulty, United States Attorney, Alexandria, Virginia, for Appellee.

Before WILKINS, Chief Judge, and LUTTIG and GREGORY, Circuit Judges.

Affirmed by published opinion. Judge LUTTIG wrote the opinion, in which Chief Judge WILKINS joined. Judge GREGORY wrote an opinion concurring in part and dissenting in part.

OPINION

LUTTIG, Circuit Judge:

Appellant Alfred G. King appeals the district court's order granting summary judgment in favor of his former employer, the United States Secretary of Defense, on his race and sex discrimination and retaliation claims brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17. Because King has not presented a prima facie case as to his race and sex discrimination claims and because he has not overcome his employer's asserted legitimate motive in terminating him with respect to his retaliation claims, we affirm.

I.

The relevant facts of this case are straightforward. In 1996, King, a black man, was hired as a teacher by the Department of Defense (DOD) Dependent Schools, subject to a two-year probationary period. During the time of his probationary employment, King was reprimanded and counseled on multiple occasions by different superiors for using profanity around the students and for belittling them. King's first supervisor, Thomas Whitaker, was the first to take notice of and to confront King about this behavior. When Whitaker took medical leave, his successor, Douglas Carlson, heard similar reports of King's unsuitable conduct and similarly reprimanded and counseled King.

Because King was a probationary teacher and because his conduct concerned Carlson, Carlson began to review other aspects of King's work, including his lesson planning. Ultimately, Carlson concluded that King's job performance was inadequate, as reflected by his lesson planning among other factors.¹ Carlson shared his conclusion with King and counseled him as to how he might improve his performance. Following a subsequent performance review — which this time culminated with Carlson telling King he could be terminated based upon his performance — Carlson received notice from the DOD Office of Complaint Investigations that King had filed an Equal Employment Opportunity (EEO) complaint against him.

Before Carlson took any definitive action with respect to King's employment, Whitaker returned from his medical leave. Upon returning, Whitaker met with Carlson to discuss King's performance. Whitaker reviewed the many notes Carlson kept of his conferences with King and of King's job performance. Whitaker then met with King on two occasions and asked King to explain his side of the events that occurred while Whitaker was away. Following these meetings, Whitaker decided to evaluate King himself before making a decision regarding his termination. Whitaker observed King's classes on several occasions and talked to several of King's students. Following his own review, Whitaker decided to terminate King prior to the end of his two-year probationary period.

King then brought this action alleging that he was terminated for discriminatory motives and that his termination was a retaliatory action against him for filing an EEO complaint. To support his claim, King proffered evidence (1) that another probationary teacher, a white man, whose conduct had generated complaints from students and parents was not fired;² (2) that Carlson picked on him; (3) that a substitute teacher had been pressured by Carlson into providing a critical review of King after substituting for him; (4) that upon learning of King's EEO complaint Carlson said to him, "[t]hat's what you people always say when you screw up;" and most importantly, as will quickly become evident, (5) that other teachers at the school considered King's lesson plans not to be substantially different from their own plans.

Upon motion for summary judgment, the district court granted judgment to appellee. The court determined that King's proffer failed to establish a prima facie case of race or sex discrimination because it did not contain evidence that King's job performance was satisfactory at the time of his discharge. The court also determined that King failed to establish a prima facie retaliatory discharge claim.

II.

We review an award of summary judgment de novo. Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir.1988). Summary judgment is appropriate only if there are no material facts in dispute and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). We view the evidence in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A.

To establish a prima facie case of discriminatory discharge, King must show: (1) that he is a member of a protected class; (2) that he suffered from an adverse employment action; (3) that at the time the employer took the adverse employment action he was performing at a level that met his employer's legitimate expectations; and (4) that the position was filled by a similarly qualified applicant outside the protected class. See Brinkley v. Harbour Recreation Club, 180 F.3d 598, 607 (4th Cir.1999). This case turns on King's inability to demonstrate the third factor — that at the time of his discharge he was performing at a level that met appellee's legitimate expectations.

Appellee offered substantial evidence that King was not in fact meeting legitimate job performance expectations, chronicling in detail King's poor performance and his supervisors' numerous concerns. King's response to appellee's evidence is limited to his own claim of satisfactory job performance and to testimony he elicited from his fellow teachers to the effect that his lesson plans were substantially comparable to their own. Neither testimony can sustain a challenge to appellee's proffer that King was not in fact meeting appellee's legitimate performance expectations.

King's own testimony, of course, cannot establish a genuine issue as to whether King was meeting appellee's expectations. See Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 960-61 (4th Cir.1996) ("It is the perception of the decision maker which is relevant, not the self-assessment of the plaintiff." (citations omitted)). Nor can the fact testimony of King's co-workers that his lesson plans were comparable to theirs establish this genuine issue. Proof that King's performance was comparable to his co-workers' is not proof that King's performance met appellee's legitimate job performance expectations. It is only proof that his work looked like that of his co-workers, a fact that, without more, does not bear on the critical inquiry.³ For this reason we have long rejected the relevance of such testimony and held it to be insufficient to establish the third required element of a prima facie discrimination case. See, e.g., Hawkins v. PepsiCo, Inc., 203 F.3d 274, 280 (4th Cir.2000) ("The alleged opinions of Hawkins' co-workers as to the quality of her work are [ ] close to irrelevant." (citation omitted)); Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 444 (4th Cir.1998) ("[A]lthough the affidavits put forth by Tinsley document the fact that certain co-workers, Bank customers, and attorneys believed Tinsley was doing a good job, they fail to address whether management honestly believed that Tinsley was doing a good job." (emphasis added)).

The irrelevance of King's co-workers as fact witnesses does not, as King contends, foreclose employees like him from ever proving a prima facie case of race and sex discrimination. King argues that our rule only allows employees to satisfy the prima facie standard in the unique, and employer-controlled, circumstance where the employer either (1) concedes that the employee was performing satisfactorily at the time of discharge, or (2) has previously given the employee positive performance reviews that establish this third element. But such is not the case. For King to establish that his work met appellee's legitimate job performance expectations he had only to offer qualified expert opinion testimony as to (1) appellee's legitimate job performance expectations and (2) analysis and evaluation of King's performance in light of those expectations.

It is not inconceivable that a plaintiff's co-workers could qualify as expert witnesses to testify as to their employer's legitimate job performance expectations and as to their own analysis and evaluation of the plaintiff's performance in light of those expectations. But King never proffered his co-workers in this capacity. And, even had the co-workers been so proffered, their testimony never touched on either of these two critical inquiries. King's co-workers' testimony was limited to the fact observation that King's lesson plans looked like theirs, and, arguably, to the fact that they believed King's work met appellee's expectations. Since testimony as to the fact that King's work looked like that of his co-workers, or even as to the fact that they believed his work met appellee's expectations, does not establish what expectations appellee could legitimately have, it cannot begin to answer the first step of the inquiry. Nor, obviously, can it answer the second step of the inquiry — an evaluation...