McGrath v. Clinton

• Decision Date: 27 January 2012
• Docket Number: No. 10–5043.,10–5043.
• Parties: Matthew Joseph McGRATH, Appellant v. Hillary Rodham CLINTON, Secretary of State, In her official capacity, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

114 Fair Empl.Prac.Cas. (BNA) 392

666 F.3d 1377

95 Empl. Prac. Dec. P 44,407

Matthew Joseph McGRATH, Appellant

v.Hillary Rodham CLINTON, Secretary of State, In her official capacity, Appellee.

No. 10–5043.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 23, 2011.Decided Jan. 27, 2012.

Appeal from the United States District Court for the District of Columbia (No. 1:05–cv–02011).Leslie D. Alderman, III argued the cause for appellant. With him on the briefs was William Aramony.

Brian P. Hudak, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen, Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: ROGERS, GARLAND, and BROWN, Circuit Judges.

GARLAND, Circuit Judge:

Plaintiff Matthew McGrath contends that his supervisor at the Department of State gave him negative performance reviews in retaliation for his opposition to discriminatory conduct, in violation of Title VII of the Civil Rights Act of 1964. The district court granted the Department's motion for summary judgment and dismissed the case. Because no reasonable juror could conclude that McGrath's supervisor unlawfully retaliated against him, we affirm.

I

McGrath served as a Foreign Service Officer in the State Department from 1984 until 2004. The events at issue in this case began in September 2001, when McGrath became unit chief of the Cultural Programs Division, an office within the Department's Bureau of Educational and Cultural Affairs. McGrath was responsible for supervising six program officers and two administrative assistants. His difficulties with his own supervisor, Van S. Wunder III, began soon after McGrath started his job and accelerated in the spring of 2002, when Wunder sent him a memorandum on March 8 that sharply criticized his performance. This memorandum was followed by a negative Employee Evaluation Report (EER), which both parties agree was based largely on the March 8 memorandum. A second negative EER followed the first, identical except that it was approved by Wunder's supervisor, who added his own critical comments.

Soon thereafter, McGrath was involuntarily removed from his position as unit chief. For several months, he remained employed by the Department but without an assignment. Although he was eventually transferred to another unit, he was terminated altogether in 2004. McGrath alleges, and the Department does not dispute, that the decision to terminate him was “based in substantial part” on the 2002 EERs. McGrath v. Clinton, 674 F.Supp.2d 131, 139 (D.D.C.2009).

In 2005, McGrath filed a complaint in district court charging the State Department with, inter alia, retaliating against him in violation of Title VII, 42 U.S.C. §§ 2000e–3(a), 2000e–16(a).¹ McGrath is a white male. The core of his charge is that Wunder, also a white male, tried to force him to document performance deficiencies of the only African–American program officer in the unit, Ms. E.J. Montgomery, for discriminatory reasons and with an eye to her eventual termination. According to McGrath, when he refused to do so, Wunder retaliated by giving him unfavorable employment reviews that eventually led to his own termination.

The district court found that the Department “provide[d] a legitimate, non-retaliatory justification for the plaintiff's negative evaluation reports and his involuntary curtailment,” McGrath, 674 F.Supp.2d at 145, and that McGrath failed to produce evidence from which a reasonable jury could find the State Department retaliated against him for taking protected action, id. at 147. Accordingly, the court granted the Department's motion for summary judgment. McGrath now appeals.²

II

We review the district court's decision to grant summary judgment de novo. Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C.Cir.2002). The court may grant summary judgment 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). For a dispute about a material fact to be “genuine,” the evidence must be 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).

Title VII prohibits federal agencies from discriminating against their employees based on race or sex. 42 U.S.C. § 2000e–16(a). It also makes it unlawful to “discriminate against”—i.e., retaliate against—an employee “because he has opposed any practice made an unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e–3(a); see Calhoun v. Johnson, 632 F.3d 1259, 1261 (D.C.Cir.2011). To prove unlawful retaliation, a plaintiff must show: (1) that he opposed a practice made unlawful by Title VII; (2) that the employer took a materially adverse action against him; and (3) that the employer took the action “because” the employee opposed the practice.³ The State Department does not dispute that the actions it took against McGrath—giving him poor performance reviews that eventually resulted in his termination—were materially adverse. The following sections address the remaining two elements of McGrath's cause of action for retaliation.

A

Title VII bars federal agencies from retaliating against an employee because he has opposed “a practice made an unlawful employment practice” by the statute. 42 U.S.C. § 2000e–3(a); see Calhoun, 632 F.3d at 1261. We have interpreted this phrase as extending to a practice that the employee reasonably and in good faith believed was unlawful under the statute. George v. Leavitt, 407 F.3d 405, 417 (D.C.Cir.2005); Parker v. Balt. & Ohio R.R. Co., 652 F.2d 1012, 1020 (D.C.Cir.1981); see Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270–71, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (noting this interpretation, but declining to rule on its propriety “because even assuming it is correct, no one could reasonably believe that the incident recounted ... violated Title VII”). But if the practice the employee opposed is not one that could reasonably and in good faith be regarded as unlawful under Title VII, this element is not satisfied. See Clark Cnty., 532 U.S. at 271, 121 S.Ct. 1508.

McGrath alleges that his specific act of “opposition” was his resistance to Wunder's alleged instruction that he document deficiencies in Montgomery's work—particularly, her inability to meet deadlines—in a manner that McGrath claims was intended to prepare the way for her termination. ⁴ McGrath asserts that the instruction was an unlawful employment practice under Title VII because it was motivated by Montgomery's race and gender.

According to McGrath, soon after he started his job in the Cultural Programs Division in 2001, Wunder spoke to him about Montgomery's work. Montgomery suffers from a disability, and McGrath charges that Wunder told him to start documenting her job performance with the goal of eventually firing her. When he refused to do as he was told, McGrath claims that Wunder shortened the home leave that McGrath had planned to take that winter. He further alleges that when he returned from leave on January 7, 2002, Wunder again told him to document Montgomery's performance. This admonition was allegedly repeated at a meeting on March 8, at which Wunder gave him a memorandum criticizing his performance and said that it would “reflect badly” on him if he did not begin to document Montgomery's deficiencies. McGrath Br. at 6. McGrath charges that this constituted a threat to give him negative employment reviews and then to fire him, which is what ultimately transpired.

The evidence, however, does not support McGrath's allegation that he opposed an employment practice that he could reasonably have regarded as unlawful under Title VII. According to McGrath's testimony at an EEOC hearing, see supra note 1, he told Wunder that he believed Wunder's treatment of Montgomery was racially discriminatory. EEOC Tr. at 196 (J.A. 824). But McGrath's unsupported assertion—whether made to Wunder or anyone else—neither makes the accusation true nor makes it reasonable for him to have believed it was true. McGrath also claimed that Wunder told him: “If you're not going to do this [document Montgomery's performance deficiencies], then it's going to reflect badly on you.” Id. at 193 (J.A. 821). As McGrath describes it, however, this was at worst a threat to downgrade McGrath's own employment review if he refused to follow a management directive—an act that Title VII does not bar unless it is accompanied by unlawful animus. And there is nothing in McGrath's description of his conversation with Wunder to suggest that it was.

When asked at oral argument for his best evidence that Wunder's directive was motivated by discrimination, McGrath pointed to Wunder's own description of their January 7 exchange regarding Montgomery. See Oral Arg. Recording at 6:50–7:50. That description was as follows:

Q: Did you tell Mr. McGrath to document Ms. Montgomery's performance and either say or suggest that he do so in order to use this information to terminate her employment?....

A: I did not instruct Mr. McGrath to document Ms. Montgomery's performance for the purposes of possible termination. [In] late December 2001 or early January 2002, I had a conversation with Mr. McGrath concerning his staff. Mr. McGrath raised the issue of limitations he perceived in the performance of various members of his staff, and noted that one of these limitations concerned Ms. Montgomery, who suffers from [a] ... medical condition [that] makes it difficult for Ms. Montgomery to type, which means that it is difficult for her to prepare the many written communications that Program Officers must complete.... I advised Mr. McGrath that EEO regulations require that appropriate compensation be made for employees with disabilities, but that if performance after compensation has been made is still not adequate, then it was the duty of the...