United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 21, 2016 Decided March 3, 2017
No. 14-7164
ROBERT LEE JOHNSON,
APPELLANT
v.
INTERSTATE MANAGEMENT COMPANY, LLC, DOING BUSINESS
AS HAMILTON CROWNE PLAZA HOTEL,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cv-01702)
Ruthanne M. Deutsch, Supervising Attorney, appointed
by the court, argued the cause as amicus curiae on behalf of
appellant. With her on the briefs were Steven H. Goldblatt,
appointed by the court, and Katherine Connolly, Lauren Ige,
and David Kanter, Student Counsel.
Nicholas T. Moraites argued the cause for appellee. With
him on the brief was Edward R. Noonan.
Before: HENDERSON, KAVANAUGH, and MILLETT, Circuit
Judges.
2
Opinion for the Court filed by Circuit Judge
KAVANAUGH, with whom Circuit Judge HENDERSON joins,
and with whom Circuit Judge MILLETT joins as to Part I, Part
II, and footnote 2 of Part III.
Opinion concurring in part and concurring in the
judgment filed by Circuit Judge MILLETT.
KAVANAUGH, Circuit Judge: Robert Johnson was a cook
at a Washington, D.C., hotel managed by Interstate
Management Company. Over several years, Interstate
repeatedly reprimanded Johnson for a variety of unsanitary
cooking and cleaning practices in the hotel kitchen. In 2011,
after concluding that Johnson had prepared a serving of
breaded chicken with a piece of plastic melted under the
breading, Interstate finally decided that enough was enough.
Interstate fired him.
Johnson does not believe that his history of unsanitary
kitchen practices was the real reason he was fired. Instead,
Johnson says that Interstate retaliated against him because he
had previously complained (i) to the Occupational Safety and
Health Administration about allegedly unsafe workplace
conditions at the hotel and (ii) to the Equal Employment
Opportunity Commission about alleged employment
discrimination by the hotel.
After he was fired, Johnson sued Interstate and raised two
claims relevant to this appeal. First, Johnson asserted a
retaliation claim under Section 11(c) of the Occupational
Safety and Health Act. See 29 U.S.C. § 660(c). Johnson
alleged that Interstate fired him in retaliation for his filing of a
complaint against Interstate with the Occupational Safety and
Health Administration. The District Court dismissed that
claim, holding that Section 11(c) does not provide a private
3
cause of action for retaliation claims. Second, Johnson
advanced a retaliation claim under Title VII of the Civil
Rights Act of 1964, the Americans with Disabilities Act, and
the Age Discrimination in Employment Act. See 29 U.S.C.
§ 623(d); 42 U.S.C. §§ 2000e-3(a), 12203(a). Johnson
alleged that Interstate fired him in retaliation for his filing of a
discrimination complaint against Interstate with the EEOC.
The District Court granted summary judgment to Interstate on
Johnson’s EEOC retaliation claim, concluding that Johnson
did not present sufficient evidence for a reasonable jury to
find that Interstate’s stated reason for firing Johnson was a
pretext for retaliation.
We agree with the District Court, and we affirm.
I
From 1996 until 2011, Robert Johnson was a cook at the
Hamilton Crowne Plaza Hotel in Washington, D.C. The hotel
is managed by Interstate Management Company.
In 2007, Johnson started receiving a steady stream of
warnings from Interstate about his unsatisfactory job
performance. Johnson was cited at different times for
incorrectly filling out his time sheets, violating the company’s
anti-harassment policy, leaving water running in the kitchen,
cleaning floor mats inside cooking pots, creating cross-
contamination hazards while preparing meat, following
improper procedures for thawing fish, and using the wrong
ingredients when preparing meals.
The warnings did not do much. In March 2010, Johnson
was suspended for undercooking chicken served at a 250-
person banquet. He was later reinstated with a “final
warning”: “Any violation of any standard of conduct will
4
result in immediate termination of employment.”
Counseling/Disciplinary Record (Mar. 8, 2010), J.A. 522.
Johnson’s violations nonetheless persisted. Several months
after Johnson’s reinstatement, Interstate cited Johnson for
thawing frozen chicken in a sink, cooling soup improperly,
and setting off a fire alarm by allowing too much smoke to
accumulate in the kitchen grill.
In February 2011, a hotel employee discovered plastic
wrap melted under the breading of a piece of cooked chicken
that was served for dinner. Interstate conducted an
investigation and concluded that Johnson cooked the chicken
with the plastic in it. Relying on the company’s investigation
and Johnson’s documented history of “repeated performance
failings,” the Human Resources Director at the hotel, Vanessa
Peters, fired Johnson. Declaration of Vanessa R. Peters ¶ 8
(Nov. 22, 2013), J.A. 509. By the time Interstate fired
Johnson, Johnson had violated company policy on at least 13
separate occasions.
Johnson traces his firing to a different cause. Over the
years, Johnson had complained a number of times about
Interstate to the Equal Employment Opportunity Commission
and to the Occupational Safety and Health Administration. In
2005, 2007, and 2010, Johnson filed discrimination
complaints with the EEOC. Those complaints were
unsuccessful. In February 2010, Johnson complained to the
Occupational Safety and Health Administration about
allegedly unsafe working conditions at the hotel, resulting in a
$34,200 fine against Interstate.
Johnson says that his complaints to the EEOC and the
Occupational Safety and Health Administration, not his
infractions in the kitchen, were the real reason he was fired.
5
Therefore, after being fired, Johnson sued Interstate. As
relevant here, Johnson raised two different retaliation claims.
First, Johnson alleged that Interstate fired him in
retaliation for his filing of a complaint with the Occupational
Safety and Health Administration about allegedly unsafe
working conditions at the hotel. He brought that claim under
Section 11(c) of the Occupational Safety and Health Act. See
29 U.S.C. § 660(c). The District Court dismissed that
retaliation claim, concluding that the Act does not provide a
private cause of action for retaliation claims.
Second, Johnson alleged that Interstate terminated him in
retaliation for his 2010 EEOC complaint, in violation of Title
VII of the Civil Rights Act of 1964, the Americans with
Disabilities Act, and the Age Discrimination in Employment
Act. 29 U.S.C. § 623(d); 42 U.S.C. §§ 2000e-3(a), 12203(a).
On that claim, the District Court granted summary judgment
to Interstate. The District Court ruled that Johnson presented
insufficient evidence for a reasonable jury to conclude that
Interstate’s stated reason for firing Johnson was not its actual
reason.
Johnson appealed. Our review of the District Court on
both issues is de novo.
II
We first address Johnson’s claim that Interstate fired him
in retaliation for his filing of a complaint with the
Occupational Safety and Health Administration. Johnson
brought his retaliation claim under Section 11(c) of the
Occupational Safety and Health Act. See 29 U.S.C. § 660(c).
Johnson may maintain a claim under Section 11(c) only if
Section 11(c) contains a private cause of action.
6
As relevant here, Section 11(c)(1) prohibits employers
from retaliating against employees for reporting violations of
the Occupational Safety and Health Act: “No person shall
discharge or in any manner discriminate against any employee
because such employee has filed any complaint or instituted
or caused to be instituted any proceeding under or related to
this chapter.” Id. § 660(c)(1).
Section 11(c)(2) supplies a remedy for employees who
believe they have been subject to retaliation for reporting a
violation of the statute: An employee may complain to the
Secretary of Labor. And the Secretary of Labor, after
investigating the employee’s complaints, may sue the
employer in federal court on the employee’s behalf. Id.
§ 660(c)(2). Section 11(c)(2) provides in relevant part:
Any employee who believes that he has been discharged
or otherwise discriminated against by any person in
violation of this subsection may, within thirty days after
such violation occurs, file a complaint with the Secretary
alleging such discrimination. Upon receipt of such
complaint, the Secretary shall cause such investigation to
be made as he deems appropriate. If upon such
investigation, the Secretary determines that the provisions
of this subsection have been violated, he shall bring an
action in any appropriate United States district court
against such person.
Id.
Although Section 11(c) affords the Secretary of Labor a
cause of action, the text of Section 11(c) does not expressly
grant employees a private cause of action for retaliation
7
claims. Therefore, the question is whether a private cause of
action is implied by the statute. The answer is no.
Congress creates federal causes of action. If the text of a
statute does not provide a cause of action, there ordinarily is
no cause of action. To be sure, on rare occasions, the
Supreme Court has recognized implied causes of action. To
support an implied cause of action, the relevant statute must
demonstrate Congress’s intent – notwithstanding the lack of
an express cause of action – to create a “private right” and a
“private remedy.” Alexander v. Sandoval, 532 U.S. 275, 286
(2001).
The high-water mark for implied causes of action came in
the period before the Supreme Court’s 1975 decision in Cort
v. Ash, 422 U.S. 66 (1975). But since Cort v. Ash, the
Supreme Court has been very hostile to implied causes of
action. See, e.g., Horne v. Flores, 557 U.S. 433, 456 n.6
(2009); Sandoval, 532 U.S. at 293; Suter v. Artist M., 503
U.S. 347, 364 (1992); Karahalios v. National Federation of
Federal Employees, Local 1263, 489 U.S. 527, 536 (1989);
Thompson v. Thompson, 484 U.S. 174, 187 (1988);
Massachusetts Mutual Life Insurance Co. v. Russell, 473 U.S.
134, 148 (1985); Middlesex County Sewerage Authority v.
National Sea Clammers Association, 453 U.S. 1, 18 (1981);
California v. Sierra Club, 451 U.S. 287, 298 (1981);
Northwest Airlines, Inc. v. Transport Workers Union of
America, AFL-CIO, 451 U.S. 77, 94-95 (1981); Touche Ross
& Co. v. Redington, 442 U.S. 560, 571 (1979); cf. Morse v.
Republican Party of Virginia, 517 U.S. 186 (1996)
(recognizing an implied cause of action under Section 10 of
the Voting Rights Act); see generally Jonathan A. Marcantel,
Abolishing Implied Private Rights of Action Pursuant to
Federal Statutes, 39 J. Legis. 251, 271 (2012-2013) (implied
causes of action are “isolated, remote possibilities” under
8
Supreme Court case law); Lumen N. Mulligan, Federal
Courts Not Federal Tribunals, 104 Nw. U. L. Rev. 175, 178
(2010) (“[T]he Court has significantly restricted the practice
of inferring causes of action from statutes.”); Donald H.
Zeigler, Rights, Rights of Action, and Remedies: An
Integrated Approach, 76 Wash. L. Rev. 67, 91 (2001)
(“[R]equiring clear evidence of congressional intent to create
a private right of action ensures that few will be found.”).
The reason for the Supreme Court’s hostility to implied
causes of action is evident: To recognize an implied cause of
action, we have to conclude that Congress intended to provide
a cause of action even though Congress did not expressly say
as much in the text of the statute. Especially as statutes are
interpreted these days, that is a high bar to clear. See
generally Exxon Mobil Corp. v. Allapattah Services, Inc., 545
U.S. 546, 568 (2005) (“As we have repeatedly held, the
authoritative statement is the statutory text, not the legislative
history or any other extrinsic material.”); WILLIAM N.
ESKRIDGE JR., INTERPRETING LAW: A PRIMER ON HOW TO
READ STATUTES AND THE CONSTITUTION 33 (2016) (“The
prime directive in statutory interpretation is to apply the
meaning that a reasonable reader would derive from the text
of the law.”); ANTONIN SCALIA & BRYAN A. GARNER,
READING LAW: THE INTERPRETATION OF LEGAL TEXTS 56
(2012) (“The words of a governing text are of paramount
concern, and what they convey, in their context, is what the
text means.”).
In this case, we decline to recognize a new implied cause
of action under Section 11(c). The text of Section 11(c)
specifically addresses who may sue. The statute grants such
authority to the Secretary of Labor, not to private parties. See
29 U.S.C. § 660(c)(2). As the Supreme Court has explained:
“The express provision of one method of enforcing a
9
substantive rule suggests that Congress intended to preclude
others.” Sandoval, 532 U.S. at 290.
Recognizing that his argument for an implied cause of
action faces an uphill climb, Johnson more narrowly argues
that Congress adopted Section 11(c) in 1970, at a time when
the Supreme Court readily recognized implied causes of
action. Johnson points out that it was not until 1975 in Cort v.
Ash, 422 U.S. 66, that the Supreme Court clamped down on
implied causes of action. So Johnson says that Congress in
1970 would have expected that Section 11(c) would create a
private cause of action for retaliation claims, even though
Congress did not actually say as much in the text of the
statute.
But the Supreme Court has rejected that kind of time-
travel argument before, and we must reject it now. See
Sandoval, 532 U.S. at 287-88. The Supreme Court in
Sandoval stated that statutes enacted during “the ancien
regime” that predated Cort are still subject to the Supreme
Court’s later and more restrictive approach to implied causes
of action. Id. at 287. When courts determine whether there is
an implied cause of action, there is not a more relaxed rule for
statutes enacted before 1975 and a tougher rule for statutes
enacted after 1975. We apply the tougher rule to all statutes.
Johnson also cites the history of the Occupational Safety
and Health Act, tracing its development from proposal to
passage. But when statutory text resolves the issue, as it does
here, the Supreme Court has said that we need not dig into the
legislative history. See id. at 288 n.7. In any event, Johnson
has not identified any committee report or statement by a
Member of Congress suggesting that there is a private cause
of action under Section 11(c).
10
Finally, Johnson advances several policy arguments
supporting a private cause of action under Section 11(c). But
those policy arguments are best addressed to Congress, not
the courts. Nothing in our decision prevents Congress from
affording employees the right to sue in federal court for
retaliation claims. But unless and until Congress acts, our
hands are tied.
We affirm the District Court’s dismissal of Johnson’s
Section 11(c) retaliation claim.1
III
Johnson also argues that Interstate violated Title VII of
the Civil Rights Act of 1964, the Americans with Disabilities
Act, and the Age Discrimination in Employment Act. In
particular, Johnson contends that he was fired in retaliation
for making an employment discrimination claim to the EEOC.
See 29 U.S.C. § 623(d); 42 U.S.C. §§ 2000e-3(a), 12203(a).
Title VII of the Civil Rights Act, the ADA, and the
ADEA all provide an express cause of action for aggrieved
employees to bring retaliation claims in federal court. See 29
U.S.C. § 626(c); 42 U.S.C. §§ 2000e-5(f), 12203(c). The
question is whether Johnson produced sufficient evidence to
support his retaliation claim. In the District Court, Interstate
moved for summary judgment. After viewing the facts in the
light most favorable to Johnson, the District Court concluded
1
Interstate argues in the alternative that res judicata forecloses
Johnson’s Section 11(c) retaliation claim. Res judicata is a non-
jurisdictional affirmative defense. See Stanton v. District of
Columbia Court of Appeals, 127 F.3d 72, 76-77 (D.C. Cir. 1997).
Because we conclude that Section 11(c) does not supply a cause of
action for Johnson’s retaliation claim, we need not address
Interstate’s res judicata argument.
11
that Johnson failed to present sufficient evidence to overcome
summary judgment. We agree.
Whether brought under Title VII, the ADA, or the
ADEA, retaliation claims are analyzed under the Supreme
Court’s decision in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). See Jones v. Bernanke, 557 F.3d 670, 677
(D.C. Cir. 2009) (retaliation claims under Title VII and
ADEA); Smith v. District of Columbia, 430 F.3d 450, 455
(D.C. Cir. 2005) (retaliation claims under ADA); see
generally Brady v. Office of Sergeant at Arms, 520 F.3d 490,
493-94 (D.C. Cir. 2008) (identifying the framework for Title
VII claims). Once the employer has asserted a legitimate,
non-retaliatory reason for firing an employee, the central
question at the summary judgment stage becomes whether the
employee has “produced sufficient evidence for a reasonable
jury to find that the employer’s asserted non-retaliatory reason
was not the actual reason” and that the employer fired the
employee as retaliation. Hernandez v. Pritzker, 741 F.3d 129,
133 (D.C. Cir. 2013); see Brady, 520 F.3d at 494.
Interstate has offered a legitimate, non-retaliatory reason
for firing Johnson. Interstate’s Human Resources Director,
Vanessa Peters, stated that Johnson lost his job because of his
“repeated performance failings and workplace deficiencies” at
the hotel, culminating in his alleged preparation of a breaded
chicken breast with plastic melted under the breading.
Declaration of Vanessa R. Peters ¶ 8 (Nov. 22, 2013), J.A.
509. Johnson does not dispute that Interstate’s allegations, if
true, would constitute a legitimate basis for firing a kitchen
employee at the hotel.
Because Interstate has offered a legitimate, non-
retaliatory justification for firing Johnson, we turn to the
central question: Has Johnson produced enough evidence for
12
a reasonable jury to conclude that Interstate’s explanation for
firing him was mere pretext? In other words, has Johnson
produced enough evidence for a reasonable jury to conclude
that Interstate is lying about the real reason it fired Johnson?
If so, then Johnson can surmount summary judgment.
In this case, the record does not reveal any direct
evidence of retaliation – for example, any statements by
Interstate employees indicating retaliatory intent – that would
alone suffice for Johnson to get past summary judgment. But
Johnson argues that there is indirect evidence of retaliation.
In particular, Johnson asserts that Interstate’s evidence does
not support its stated reason for firing him, and that the stated
reason therefore must be a pretext for retaliation.
Johnson is wrong. The record contains a plethora of
evidence that backs up Interstate’s stated reason for firing
Johnson. Interstate’s business records indicate that Johnson
violated company policy on at least 13 separate occasions.
From 2007 to 2011, Johnson was cited for: (1) incorrectly
filling out his time sheets; (2) violating the company’s anti-
harassment policy; (3) leaving water running in the kitchen;
(4) cleaning floor mats inside cooking pots; (5) working for
less time than suggested on his time sheets; (6) creating cross-
contamination hazards while preparing meat; (7) following
improper procedures for thawing fish; (8) using the wrong
ingredients when preparing meals; (9) undercooking chicken
served at a 250-person banquet, and cooking vegetables
without removing the product stickers; (10) thawing frozen
chicken in a sink; (11) improperly cooling soup; (12) setting
off a fire alarm by allowing too much smoke to accumulate in
the kitchen grill; and (13) preparing a serving of breaded
chicken with a piece of plastic melted under the breading.
Some of those violations of company policy could have
13
seriously imperiled the safety (not to mention the appetites) of
the hotel’s customers.
Johnson offers minimal evidence to dispute those 13
alleged infractions. Indeed, for almost all of the 13
infractions, Johnson simply says that the hotel’s
contemporaneous reports on the infractions were inaccurate.
But Johnson does little aside from claiming that he did not
commit the infractions and pointing to the fact that he did not
sign the infraction reports. Johnson does not provide
evidence that is sufficient for purposes of summary judgment
to cast doubt on the adverse employment record established
by the large volume of infraction reports.
For the last of the 13 alleged infractions, Johnson more
strenuously contests Interstate’s allegations, but not in a way
that suffices to overcome summary judgment. Johnson says
that he did not cook a chicken with plastic under the breading
because his time sheet indicates that he left work by 1:30 p.m.
on the day the chicken was served for dinner. But the key for
that incident is when the chicken was cooked, not when it was
served. The chicken with plastic under the breading could
have been cooked before 1:30 p.m., even if it was to be served
for dinner. The hotel looked into the matter and concluded
that Johnson had prepared that particular chicken. Johnson
has not produced sufficient evidence to demonstrate that the
chicken was cooked by other kitchen employees after Johnson
left for the day.
In sum, on this record, a reasonable jury could not
conclude that Interstate’s reason for firing Johnson was
pretextual. If anything, the record suggests that Interstate was
14
exceedingly patient with Johnson’s pattern of workplace
errors.2
***
We affirm the judgment of the District Court.
So ordered.
2
Even if Johnson had produced sufficient evidence to dispute
whether the infractions occurred, Johnson did not provide sufficient
evidence to call into question whether hotel management “honestly
and reasonably believed” that the infractions occurred. Brady v.
Office of Sergeant at Arms, 520 F.3d 490, 496 (D.C. Cir. 2008).
Therefore, for that additional reason, Johnson’s claim would not
overcome summary judgment.
MILLETT, Circuit Judge, concurring in part and concurring
in the judgment: I agree with the majority opinion that Section
11(c) of the Occupational Safety and Health Act, 29 U.S.C.
§ 660(c), does not contain a private right of action for
retaliation claims. I also agree that we should affirm the district
court’s grant of summary judgment for Interstate Management
Company on Johnson’s retaliation claim under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), the
Americans with Disabilities Act, 42 U.S.C. § 12203(a), and the
Age Discrimination in Employment Act, 29 U.S.C. § 623(d).
While I disagree with much of how Section III of the majority
opinion analyzes the summary judgment record, I agree with
the statement in footnote 2 that Johnson did not come forward
with sufficient evidence from which a reasonable jury could
have concluded that Interstate did not “honestly and reasonably
believe[]” he engaged in the employment misconduct in
question. Brady v. Office of the Sergeant at Arms, 520 F.3d
490, 496 (D.C. Cir. 2008) (emphasis omitted). I accordingly
join Part III of the majority opinion only as to footnote 2.