Plaintiff Marlon Primes, an African-American Assistant U.S. Attorney in the Northern District of Ohio, appeals the district court’s granting of the government’s cross-motion for summary judgment on аll claims. This appeal presents the question whether the plaintiff has set forth a prima facie case of racial discrimination by the Department of Justice, and mоre specifically, his supervisor, Civil Chief Marcia Johnson. For the reasons set forth below and in the thorough analysis of the lower court, its judgment is affirmed.
Mr. Primes begаn work on October 18, 1992, in the U.S. Attorney’s Office in the Northern District of Ohio. Although Primes received work evaluations in both 1992 and 1993, the subject of this suit is the full-year performancе evaluation he received in 1994. At that time, Primes was still a junior Assistant U.S. Attorney with very limited litigation experience; to wit, he did not try any cases in 1994 and he delivered his first aрpellate argument that year. In 1994, all Assistant U.S. Attorneys in the Northern District of Ohio received one of the following performance ratings: (1) Unacceptable; (2) Minimally Satisfactory; (3) Fully Successful; (4) Excellent; and (5) Outstanding. These government attorneys were rated not on the basis of the number of cases won or lost, but rather on the basis of the
quality
of their work in the light of the
complexity
of their case assignments. Primes was given a rating of “Fully Successful” for 1994.
Primes received his 1994 mid-year progress review on September 28 of that year. Only days later, on October 3, 1994, Primes filed his first written informal complaint of rаcial discrimination with the Equal Employment Opportunity Office of the Executive Office of U.S. Attorneys in Washington, DC. When Primes’ work performance did not improve substantiаlly between the mid-year review and his year-end evaluation, Ms. Johnson expressed the same concerns regarding his work as she had previously. On April 19, 1995, Primes filed his first formal written complaint of racial discrimination with the EEOC, adding an allegation that he had been subject to reprisal for his Equal Employment Opportunity claim. Thе Department of Justice, however, maintains that Ms. Johnson did not learn that plaintiff had initiated an informal EEO complaint until after she completed his year-end 1994 performance evaluation in March 1995. In March 1997, Primes filed suit in federal court, alleging that his 1994, “fully successful” performance evaluation was discriminatory, that he hаd been subject to different standards than females and non-African-Americans, and that management had retaliated against him for filing his initial allegation of discrimination in October 1994. The parties filed cross-motions for summary judgment, and the district court denied Primes’ motion and granted summary judgment to the Department of Justice, dismissing all of Primes’ claims.
The district court held that Primes had failed (1) to present direct evidence of discrimination, see JA 291; (2) to set forth a prima facie case of discrimination because he failed to establish that he was qualified for a higher evaluation than the one he received; and (3) to show that similarly situated lawyers were treated differently, see id. at 295, 298. The сourt held that even if Primes had set forth a prima facie case of discrimination, the defendant had “provided ample reasons to show Primes’ performance evaluation ... was a legitimate finding and not the result of any racial animus.” Id. at 298. The district court also held that Primes had failed to establish an inferenсe of retaliation, as his final evaluation was based on the identical factors set forth in his progress review six months earlier. This appeal ensued.
In this disparate treatment case, Primes can make a prima facie сlaim of discrimination only by showing that the Department of Justice treated differently a member of a non-protected group similarly situated in an analogоus situation. In the instant matter, the government maintains that Primes, like other Assistant U.S. Attorneys in the civil division, was evaluated on the basis of the quality of his work in light of the complexity of his case assignments. As the follоwing excerpt from the District Court’s opinion demonstrates, the Department of Justice has set forth substantial unrebutted statistical evidence that shows that Primes was not treated differently from similarly-situated non-minority employees:
About half of the remaining nine attorneys received a “fully successful” rating during their second full year with the Northern District, that was their same rating as their first year, and most of these lawyers were white. (Second year ratings were not complete or available for a few others). A similаrly situated attorney who is not a minority was rated on a new scale in his second year evaluation and received a grade ... equivalent to the former “fully successful” grade. (Of the two AUSAs who received an “excellent” rating during the second year, one was white and the other was African-American.)
In summary, the defendant treated plaintiff the same as at least four similarly situated AUSAs when Primes was rated “fully successful” during his second year with the civil division. One black male and one white male were rated higher but at least four others received the same rating.
JA 295-96 (emphasis added) (footnote omitted).
Under these circumstances, the employment action at issue — Primes’ 1994, mid-rangе, performance evaluation of “fully successful” — is not the type of adverse employment action contemplated by Title VII. If every low evaluation or other action by an employer that makes an employee unhappy or resentful were considered an adverse action, Title VII would be triggered by supervisor criticism or even facial expressions indicating displeasure. Paranoia in the workplace would replace the prima facie case as the basis for a Title VII cause of action. The case law supports our view that the employer conduct in this case will not support a Title VII cause of action.
See Yates v. Avco,
Accordingly, the judgment of the district court is AFFIRMED.