King v. RumsfeldKing v. Rumsfeld
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.
COUNSEL
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
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,
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
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
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
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.
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 perfor-
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 of King‘s work under appellee‘s as-of-yet unidentified legitimate expectations. Failing to address what expectations of King appellee could legitimately maintain and failing to analyze King‘s work in light of such opined expectations, the co-workers’ fact testimony cannot build a prima facie case for King.4
Because King cannot establish that his job performance satisfied appellee‘s legitimate expectations, and so cannot establish a prima facie case, his other allegations — that a similarly situated white, probationary teacher was not fired after complaints were raised about him, and that Carlson picked on him, asked a substitute to critique him, and ultimately told him “[t]hat‘s what you people always say when you screw up” — are irrelevant to the inquiry. These allega-
B.
The district court also concluded that King failed to make out a prima facie case of retaliatory discharge. We disagree. We conclude that King did indeed make out a prima facie case of retaliation. However, appellee offered a legitimate, non-retaliatory motive for King‘s termination, as to which proffer King has not offered evidence of pretext.
To make out a prima facie case of retaliation, King must show (1) that he engaged in a protected activity; (2) that his employer took an adverse employment action against him; and (3) that a causal connection existed between the protected activity and the asserted adverse action. See Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989). Here, King‘s filing of the EEO complaint was protected activity, and his termination indisputably constituted adverse employment action. Moreover, that his termination came so close upon his filing of the complaint gives rise to a sufficient inference of causation to satisfy the prima facie requirement. See id. (“Appellant‘s proof of a causal connection between the protected activity and her discharge was that she was fired after her employer became aware that she had filed a discrimination charge. While this proof far from conclusively establishes the requisite causal connection, it certainly satisfies the less onerous burden of making a prima facie case of causality.“).5
Appellee, however, proffered a legitimate, non-retaliatory discharge motive — that King was not meeting appellee‘s job performance expectations — after King shifted the burden to it by establishing his prima facie case. See id. (“Once this prima facie evidence [of retaliatory discharge] is established, it must be rebutted by legitimate nonretaliatory reasons[.]“). Appellee thus shifted the burden back to King with his proffer. See Womack v. Munson, 619 F.2d 1292, 1296 (4th Cir. 1980) (following the employer‘s proffer of a legitimate, non-retaliatory reason for an adverse employment action the burden of persuasion remains with the plaintiff to prove that the employer‘s reason is pretext, a cover-up for retaliation).
None of King‘s various allegations — that a similarly situated white, probationary teacher was not fired after complaints were raised about him, and that Carlson picked on him, asked a substitute to critique him, and ultimately told him “[t]hat‘s what you people always say when you screw up” — contradict appellee‘s proffered discharge motive.
Nor are they probative in the manner that the dissents suggests. For example, the dissent says:
[T]hat Whitaker was aware of reports of ongoing misconduct by Moore — post reprimand . . . establishes a solid basis for the permissible inference . . . that the administrators knew that Moore‘s misconduct continued beyond reprimand[.]
Post at 16. But, evidence that a parent wrote to the school to complain about this other teacher after that teacher was reprimanded cannot
King does not present the first form of proof here — testimony that the administrators believed the two teachers were similarly situated in the relevant respect. The administrators testified they believed the other teacher had ceased his misconduct. King proffered no evidence to contradict their testimony directly. The letter from the vexed parent that the dissent cites does not, and cannot, directly establish that the administrators thought as the parent thought. It establishes only that the administrators were informed as to the parent‘s thoughts. Indeed, that very letter reports that the administrators disagreed with its author and believed the other teacher had ceased his misconduct.
The second form of proof — proving by inference from the fact that the other teacher‘s misconduct had continued beyond reprimand that the administrators knew such to be the case — is not met here either. The only evidence King proffers on this score is the same letter as discussed above. King argues, in essence, that the letter proves two different facts: (1) that the teacher did in fact continue his misconduct beyond reprimand; and (2) that the administrators were given knowledge of this fact. It should be readily apparent that until evidence that can establish the fact of continuing misconduct is proffered, the letter cannot establish the second fact. For if there is no proof that the misconduct continued, the letter cannot establish that the administrators were given knowledge that it continued since the foundation of any such knowledge is the actual fact that the misconduct continued.
The letter, however, cannot establish that the misconduct in fact continued. As an initial matter, the letter-writer concedes he is a parent of a child who had not been inappropriately touched by the teacher following his reprimand. See J.A. at 333-34. Consequently,
Since the letter cannot establish the fact of continuing misconduct, and since no other evidence was presented to establish this fact, the letter cannot establish that it gave the administrators knowledge of such a fact. With no valid evidentiary basis on which to infer that the administrators knew, despite their denial, that the other teacher‘s misconduct continued, King cannot establish inferentially that he was similarly situated to that other teacher.
Likewise, the dissent places too much weight on the testimony by Donna Fontenot (a substitute teacher at the school) that Carlson asked her to be “critical” of, or make “derogatory comments” about, King‘s lesson plans in her post-substituting evaluation forms. See J.A. at 381. As an initial matter, that an employer asks, or even coerces, a subordinate to evaluate another‘s work critically is not sufficient on its own to establish evidence of pretext. Employers are entitled to demand that subordinates provide critical reviews of their employees when such are justified by sub-par work. And, even if Carlson‘s demand of Fontenot is the least bit probative that he harbored an unlawful motive for firing King and so desired that she provide a pretext under which he could fire him, the fact is that Carlson did not fire King. Whitaker
The dissent also points to King‘s co-worker testimony as evidence that King was treated differently than similarly situated colleagues. But again, for similar reasons as governed our discussion in section II.A., cf. infra pp. 4-7, the opinion of King‘s colleagues that his work was equivalent to theirs is probative only of the fact that those co-workers believed their work was equivalent to his. It is not probative of whether King‘s work actually was equivalent to theirs, and thus of whether King actually was similarly situated to them. For King to prove that he was similarly situated to his colleagues in terms of his job performance would, in the absence of evidence to that effect from the employer or its job performance reviews, require an expert to form an opinion based on reasoned analysis as to how King and the other teachers were performing and as to how their performances measured against one another. Such is not the stuff of lay, fact testimony. Compare
Though the dissent would rely upon Conkwright v. Westinghouse Electric Corp., 933 F.2d 231 (4th Cir. 1991), to reach the contrary conclusion, that case does not support the dissent. In Conkwright, we considered the employment discrimination claims of a worker who
It is only close to irrelevant because if the ratings were wildly out of line with other indicia of an employee‘s performance then one may question whether the rating system has a bias in its implementation. But that is not the case here.
As is readily apparent from the language of that footnote, we were there concerned with the relevance of “indicia of an employee‘s performance” in an inquiry as to pretext. We did not there address the reliability of co-worker testimony as a means of proving that an employee‘s work performance was either adequate or that it was equivalent to that of other workers.
Here, we accept that indicia of King‘s performance might be relevant to the pretext inquiry. But, as explained above, King has not proffered any reliable and admissible testimony as to such indicia, and King cannot qualify the testimony of his co-workers as a reliable assessment of the relative competence of him and his co-workers. The dissent‘s effort to backdoor the co-worker testimony into the case under Conkwright thus fails and King may not ground his proof of pretext on such testimony.
For all the reasons given above, none of the evidence King proffers is sufficiently demonstrative of retaliatory intent to establish that the unrebutted poor performance discharge motive is pretext. As a result, King‘s proffer is insufficient for his action to survive appellee‘s motion for summary judgment. And while the district court improperly found King not to have made out a prima facie case, it properly granted summary judgment for appellee.
For the reasons stated herein, the judgment of the district court is affirmed.
AFFIRMED
GREGORY, Circuit Judge, concurring in part and dissenting in part:
I join the majority‘s opinion with respect to King‘s failure to establish a prima facie case of discriminatory discharge. As the majority finds, King has not adduced sufficient evidence of satisfactory performance vis-a-vis his employer‘s legitimate expectations to survive summary judgment. Additionally, I concur in the majority‘s reversal of the district court‘s conclusion that King failed to make out a prima facie case of retaliatory discharge. However, for the reasons that follow, I dissent from the majority‘s conclusion that King‘s allegations of discriminatory treatment are insufficient to create a genuine issue of material fact with respect to pretext.
The majority identifies King‘s allegations regarding differential and discriminatory treatment at the hands of his employer. The majority then posits that this treatment, even if assumed to be true, fails to contradict the Secretary‘s proffered discharge motive. To survive summary judgment, however, King need not squarely rebut his employer‘s explanation. Instead, King must cast sufficient doubt upon the genuineness of the explanation to warrant a jury‘s consideration of possible alternative and discriminatory motivations for the firing. As a basic proposition, it is not terribly difficult to imagine a workplace where, confronted with a group of underperforming employees, an employer who is improperly motivated by discriminatory and retaliatory animus, singles out the minority employee for firing after he files a complaint. Because he has made out a prima facie case, if King also has cast doubt upon the real motivations behind his unique treatment, he has adduced sufficient evidence to survive summary judgment.
In Hawkins v. Pepsico, Inc., 203 F.3d 274, 280 (4th Cir. 2000), a panel of this Court addressed the exact nature of the evidence neces-
In an age in which schools are acutely aware of the dire consequences that may follow from allegations of inappropriate touching of students by teachers, one would expect school administrators to respond rapidly and decisively to any such allegation. Yet, it is precisely in this highly charged context that we observe a case of laissez-faire and differential treatment by the school. Specifically, I am disturbed by the differential treatment of King‘s white co-worker, Richard Moore, who violated the school‘s policies by inappropriately poking and tickling students, yet was not terminated, nor even formally written-up for the incident.
The Secretary claims that Moore stopped his objectionable conduct once warned, yet King proffers evidence that undermines this defense. To wit, King offers the testimony of Robert Inaba, whose son Keith had been inappropriately touched by Moore throughout the year. See J.A. at 333-334. Inaba brought this conduct, along with other complaints regarding Moore, to the attention of Whitaker during a June 2, 1997 meeting. Id. Whitaker acknowledged that another par-
The majority argues that to prove that King and Moore were similarly situated for purposes of discipline, King would have to show that Moore‘s misconduct continued beyond reprimand, which would permit the inference that the administration did in fact know of the continuing misconduct. Supra at 9. The majority turns to the Inaba incident discussed above and concludes that it does not demonstrate that the misconduct continued beyond the reprimand. Id. at 10. However, this conclusion simply does not follow from the relevant facts. The majority notes that Inaba learned of the incident on June 2 through his son, rather than from Damon Dukes or his father. The majority then acknowledges that Inaba spoke to Mr. Dukes, and confirmed that Damon had been touched. The majority places great emphasis upon its observation that Mr. Dukes did not indicate that the touching had “occurred after the teacher had been reprimanded.” Id. Finally, the majority notes that neither the victim nor his parent filed a complaint alleging the touching. Hence, according to the majority, there is no basis upon which the inference of knowledge of continued touching may rest.
This fact establishes a solid basis for the permissible inference, to adopt the majority‘s logical approach, that the administrators knew that Moore‘s misconduct continued beyond reprimand, yet failed to discipline him as they would ultimately discipline King. Hence, King has established a genuine issue of material fact warranting a jury‘s consideration of differential treatment. The majority validly observes that Inaba‘s testimony is indirect, that neither Damon Dukes nor his father filed a complaint, and we might well expect the Secretary to present just such a challenge to King‘s evidence at trial. However, we must limit our inquiry at present to whether King may survive summary judgment, not prognosticate whether his evidence will ultimately sway a jury. King‘s evidence of the differential treatment vis-a-vis his white colleague alone constitutes sufficient evidence of pretext to deny summary judgment.
However, King offers significant proof beyond the Moore incident from which we may infer that he was treated differently by his employer. For instance, King offers the testimony of Donna Fontenot, a substitute teacher at the school, who testified that she was coerced by Carlson to prepare reviews denigrating the quality of King‘s lesson plans. See J.A. at 381-83. Fontenot testified that she felt pressured, at the risk of losing future teaching assignments, to produce a negative evaluation of King‘s work. Id. The majority dismisses this testimony because it was Whitaker, rather than Carlson, who made the ultimate
The majority seems to assume that Fontenot‘s reviews should be read independently of the circumstances under which they were produced. By insisting that King demonstrate that Fontenot‘s reviews “falsely attributed sub-par performance to him,” supra at 11, the majority returns again to its insistence that King demonstrate the merits of his performance. However, as noted above, King need not squarely rebut his employer‘s performance-based explanation. Instead, he must introduce evidence casting doubt upon the proffered explanation. It is to this end that Fontenot‘s testimony should be directed. That a teacher was coerced to denigrate the work of her colleague, contrary to her true impressions and beliefs, must at least raise genuine issues concerning the credibility of Carlson‘s putative meritocractic zeal. Although Carlson did not make the ultimate decision to fire King, these coerced reviews were part of King‘s teaching record. Of course, as the majority emphasizes, Whitaker asserts that he discharged King after conducting his own independent investigation of the case. However, a jury need not blindly accept this version of events, and may rightfully infer that Whitaker‘s decision may have been tainted by Carlson‘s misconduct — evidence of which abounds. The Fontenot testimony reveals differential treatment, whereupon a jury may legitimately discount the reviews as a pretext for the employer‘s true unlawful motive.
Finally, the majority dismisses King‘s proffer of co-worker testimony regarding the similarity of his work to their own. According to the Court, King may only establish the equivalence of his work by introducing expert testimony to this effect. Supra at 11. I agree with the majority that King would require expert testimony to establish that his work met the legitimate expectations of his supervisor; however, it hardly follows a fortiori that he must adduce expert testimony to demonstrate the similarity of his work product to that of his co-workers.
Although the contours of
The majority‘s treatment of the distinction between lay and expert opinion does not do justice to the subtleties of the problem. The majority oversimplifies this evidentiary issue when it asserts that King would require an expert witness to “form an opinion based on reasoned analysis as to how King and the other teachers were performing and as to how their performances measured against one another.” Supra at 11. King has adduced substantial evidence from his fellow teachers to the effect that their lesson plans were similar. Each of these teachers and substitute teachers had ample personal knowledge of the subject matter. To allow one teacher to introduce the opinion that his or her colleague‘s lesson plan “looks similar,” as so many of King‘s co-workers have testified, would hardly hazard setting
Finally, I would take this opportunity to comment upon this Circuit‘s precedent, which has been cited by the majority to emphasize our traditional reluctance to employ the testimony of co-workers to establish performance merit in unlawful discharge cases. Supra at 5. Indeed, as the majority correctly explained, an employee may not introduce the testimony of his co-workers to establish his satisfaction of his supervisor‘s legitimate performance expectations. See Hawkins, 203 F.3d at 280; Tinsley, 155 F.3d at 444. I joined the majority‘s opinion regarding King‘s discriminatory discharge claims precisely in light of such precedent. However, we are now forced to resolve a separate question altogether: does King‘s evidence of comparable work product demonstrate differential treatment by his employers?
The opinion testimony of King‘s peers establishes a genuine question of fact regarding the equivalence of his work product to that of his peers. This evidence does not establish that his work was meritorious, nor could it under our precedent. We have had occasion, in noting the narrow relevance of co-worker testimony regarding the quality of a plaintiff‘s work product, to allow for the admission of such opinion in order to demonstrate the possibility of implementation bias in an otherwise objectively designed review scheme. See Conkwright v. Westinghouse Electric Corp., 933 F.2d 231, 235 n.4 (4th Cir. 1991). In Conkwright, we acknowledged that an “objective” employee rating system, might be manipulated to generate a neutral looking basis for discharge. In such a scenario, where co-workers testified that the employee did not deserve the ratings he received, we observed that their testimony could be relevant to an argument of pretext. The majority concedes that such “indicia of King‘s performance might be relevant to the pretext inquiry,” supra at 12, but goes on to conclude that King failed to proffer admissible testimony as to such indicia. Obviously, in light of my discussion of