17-3196-cv
Johnson v. Schmid, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 7th day of September, two thousand eighteen.
PRESENT: ROBERT D. SACK,
REENA RAGGI,
DENNY CHIN,
Circuit Judges.
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CLEAVEN JOHNSON,
Plaintiff-Appellant,
v. 17-3196-cv
CHARLOTTE SCHMID, MALCOLM BLUE,
Individual Capacity, DEPARTMENT OF CHILDREN
AND FAMILIES,
Defendants-Appellees,
JOETTE KATZ, Official Capacity, HOFFMAN
GAYLE, Official Capacity, JEANNETTE PEREZ,
Official and Individual Capacity, RAQUELINDA
CABRAL, Official and Individual Capacity,
STEFFANIA HANNA, Official and Individual
Capacity, MAUREEN AUGEUR, Official and
Individual Capacity, DANA GOLDBERG, Official
and Individual Capacity,
Defendants.
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FOR PLAINTIFF-APPELLANT: JOSEPHINE S. MILLER, Danbury,
Connecticut.
FOR DEFENDANTS-APPELLEES: JENNIFER P. BENNETT, Assistant Attorney
General (Ann E. Lynch, Assistant Attorney
General, on the brief), for George Jepsen,
Attorney General of Connecticut, Hartford,
Connecticut.
Appeal from the United States District Court for the District of
Connecticut (Thompson, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-appellant Cleaven Johnson, a former social worker trainee at the
Connecticut Department of Children and Families (the "Department"), appeals the
district court's September 14, 2017 judgment, entered pursuant to its September 11, 2017
ruling, granting summary judgment in favor of defendants-appellees the Department
and two Department employees on Johnson's claims that he was racially discriminated
and retaliated against in violation of 42 U.S.C. §§ 1981 and 1983 and Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. We assume the parties' familiarity with the
underlying facts, procedural history, and issues on appeal.
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The following facts are viewed in the light most favorable to Johnson. On
July 16, 2010, Johnson, an African-American male, began working for the Department as
a social worker trainee through the settlement of a prior complaint he filed with the
Connecticut Commission on Human Rights and Opportunities (the "Commission"). At
all relevant times, the Department employed the two individual defendants-appellees,
area director Malcolm Blue and social worker Charlotte Schmid.
During Johnson's classroom instruction, on three separate occasions, his
instructors -- each of whom was a white female -- complained that Johnson's behavior
was disruptive. The instructors reported that he sighed loudly on September 14, 2010,
used a cell phone in class on September 17, 2010, and fell asleep in class on September
22, 2010. Johnson denies that he was disruptive and contends that the instructors
themselves engaged in equally disruptive behavior during the classes. He also received
a memorandum from his supervisor dated November 30, 2010, documenting concerns
with his written narratives of client visits.
Johnson's first formal evaluation, which covered his performance from
July through November 2010, gave him an overall rating of "Fair." Johnson and his
attorney sent letters to the Department disagreeing with the evaluation.
On January 13, 2011, one of the Department's clients -- with whom
Johnson and Schmid jointly conducted a home visit -- emailed Schmid expressing fear
that her children would be taken from her based on threats she received from Johnson.
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Johnson contends that the client told him that Schmid coerced her into making the
complaint. Johnson told Blue that he thought Schmid had set him up, explaining that,
although he did not want to file suit, he would if necessary. Blue, who is also African
American, responded, "[A]re you threatening me?" App. 454. In addition, at some
point several months into his employment, Blue told Johnson, "I know how you got
here" -- referring to Johnson's previous complaint to the Commission -- and "there are
not many of us brothers around here." App. 352. A Human Resources inquiry found
that Schmid did not solicit the client complaint, and Johnson was removed from the
case.
Johnson filed a second complaint with the Commission, stamped as
received on March 4, 2011, alleging retaliation. On March 31, 2011, Johnson received
another memorandum detailing "ongoing concerns" with his performance, focusing
primarily on problems with clients. App. 407. Johnson's second evaluation, which
covered his performance from November 2010 through May 13, 2011, gave him an
overall rating of "Unsatisfactory." The evaluation concluded that he was "not suited for
the position of Social Worker." App. 260. On May 17, 2011, Blue sent Johnson a letter
advising that Johnson was being dropped "during [his] working test period as a Social
Worker . . . effective May 13, 2011" and noting that the "decision [had] been made based
on [Johnson's] unsatisfactory performance." App. 424.
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On September 20, 2015, Johnson filed a five-count amended complaint
against the Department and several employees alleging that his firing was the result of
race discrimination and retaliation, in violation of Section 1983, Section 1981, and Title
VII. The district court (Thompson, J.) dismissed all individual defendants except
Johnson and Schmid. On September 11, 2017, the district court granted summary
judgment in favor of the remaining defendants on all claims. Judgment was entered
September 14, 2017. This appeal followed.
"We review de novo the district court's grant of summary judgment,
construing the evidence in the light most favorable to the non-moving party and
drawing all reasonable inferences in her favor." Mihalik v. Credit Agricole Cheuvreux N.
Am., Inc., 715 F.3d 102, 108 (2d Cir. 2013). Summary judgment is appropriate 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). "Even in the discrimination context,
. . . a plaintiff must provide more than conclusory allegations . . . and show more than
'some metaphysical doubt as to the material facts.'" Gorzynski v. JetBlue Airways Corp.,
596 F.3d 93, 101 (2d Cir. 2010) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986)); see also Rivera v. Rochester Genesee Reg'l Transp. Auth., 743
F.3d 11, 20 (2d Cir. 2014) (summary judgment is appropriate where there is "nothing in
the record to support plaintiff's allegations other than plaintiff's own contradictory and
incomplete testimony" (quoting Jeffreys v. City of N.Y., 426 F.3d 549, 555 (2d Cir. 2005))).
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We analyze race discrimination and retaliation claims based on
circumstantial evidence under the three-step McDonnell Douglas burden-shifting
framework. See, e.g., Kirkland v. Cablevision Sys., 760 F.3d 223, 225 (2d Cir. 2014) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)) (Title VII race discrimination
and retaliation); Garcia v. Hartford Police Dep't, 706 F.3d 120, 127-31 (2d Cir. 2013)
(Section 1981 and Section 1983 race discrimination); Littlejohn v. City of N.Y., 795 F.3d
297, 312-16 (2d Cir. 2015) (Title VII and Section 1981 retaliation). First, an employee
must present a prima facie case of race discrimination or retaliation. Kirkland, 760 F.3d
at 225.
To state a prima facie case of race discrimination, a plaintiff
must proffer evidence that (1) he belongs to a protected
group; (2) he was qualified for his position; (3) his employer
took an adverse action against him; and (4) the adverse
action occurred in circumstances giving rise to an inference
of race discrimination.
Id. The requirement is "minimal" and "a plaintiff's burden is therefore 'not onerous.'"
Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 128 (2d Cir. 2012) (citations
omitted). Second, "the burden shifts to the employer to give a legitimate, non-
discriminatory reason for its actions." Kirkland, 760 F.3d at 225. Third, "[i]f the
employer does so, the burden then shifts back to the plaintiff to show that the
employer's explanation is a pretext for race discrimination or retaliation." Id.
The "ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all times with the plaintiff,"
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Bucalo, 691 F.3d at 129 (alteration omitted) (quoting St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 507 (1993)), and "the governing standard is simply whether the evidence, taken
as a whole, is sufficient to support a reasonable inference that prohibited discrimination
occurred," James v. N.Y. Racing Ass'n, 233 F.3d 149, 156 (2d Cir. 2000). We analyze
Johnson's race discrimination and retaliation claims in turn.
I. Race Discrimination
Johnson contends that he was fired because of his race because (1) the
three white female instructors engaged in similar conduct to him but were not
disciplined, (2) Johnson was evaluated by different performance criteria than other
social worker trainees, and (3) Blue used a derogatory racial slur after Johnson
intimated that he might file a lawsuit. The district court concluded that these
arguments failed to present a genuine issue for trial. We agree.
We assume that Johnson met his minimal burden of establishing a prima
facie case of race discrimination, as required under McDonnell Douglas. The Department
has articulated "a legitimate, non-discriminatory reason" for firing Johnson -- his poor
performance. We therefore proceed to the ultimate question of whether Johnson has
adduced sufficient evidence from which a reasonable factfinder could conclude he was
discriminated against because of his race.
First, a plaintiff may establish an inference of discrimination by
establishing "that a similarly situated employee not in the relevant protected group
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received better treatment," but "those employees must have a situation sufficiently
similar to plaintiff's to support at least a minimal inference that the difference of
treatment may be attributable to discrimination." McGuinness v. Lincoln Hall, 263 F.3d
49, 53-54 (2d Cir. 2001). "Whether two employees are similarly situated ordinarily
presents a question of fact for the jury," Graham v. Long Island R.R., 230 F.3d 34, 39 (2d
Cir. 2000), but here no reasonable jury could conclude that Johnson was sufficiently
similar to the purported comparators. They were instructors while he was a social
worker trainee -- they were supervisors, and he was their student. Hence, they were not
similarly situated as a matter of law.
Second, Johnson has not proffered evidence to support his argument that
he was subjected to different performance criteria than his coworkers. Johnson
contends that he was required to collect information on his Family Case Plans that his
coworkers were not required to collect. 1 Even assuming that these requirements for
collecting information constitute performance criteria, there is no evidence to support
the inference that any different requirements resulted from impermissible race-based
discrimination, rather than differences in the cases themselves. Moreover, Johnson
provides only two comparators, one of whom was Hispanic, and the other of whom
was also African-American.
1 Family Case Plans are apparently forms that are used to record case information, such as
the members of a household, written narrative assessments, and objectives, among other things.
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Third, as for the derogatory racial slur, Johnson averred for the first time
in opposing summary judgment that Blue told him, in response to Johnson's suggestion
that he might file a lawsuit, "[A]re you threatening me boy?" App. 355 ¶ 41 (emphasis
added). A party may not defeat summary judgment "by submitting an affidavit in
opposition to a summary judgment motion that, by omission or addition, contradicts
the affiant's previous deposition testimony," Hayes v. N.Y.C. Dep't of Corr., 84 F.3d 614,
619 (2d Cir. 1996), particularly where the contradiction "is left unexplained -- indeed, is
inexplicable," In re Fosamax Prods. Liab. Litig., 707 F.3d 189, 194 (2d Cir. 2013) (per
curiam). Johnson's previous characterization of Blue's statement, made in response to
interrogatories, omitted the word "boy," and he has not even attempted to explain his
initial omission of the racial epithet that he now relies on as key proof of race
discrimination. Moreover, Johnson has not pointed to any other purportedly racist
remarks, see Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998) ("'[S]tray remarks'
alone do not support a discrimination suit."). Thus, Johnson's new allegation regarding
Blue's use of a purported racial epithet does not raise a genuine issue for trial.
Finally, even setting aside the client complaint Johnson alleges was
improperly solicited by Schmid, the Department proffered extensive and largely
undisputed evidence showing that Johnson was a poor performer, including reports of
his disruptive behavior in classrooms in September 2010; a November 30, 2010
memorandum from his supervisor documenting concerns with his written narratives; a
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March 31, 2011 memorandum detailing "ongoing concerns" with his performance; and
two evaluations reflecting concerns with certain aspects of Johnson's performance.
In light of the absence of evidence Johnson has produced to support the
inference that he was fired because of his race, balanced against the Department's
strong evidence of his poor performance, we conclude that Johnson failed to meet his
ultimate burden of producing evidence "sufficient to support a reasonable inference
that prohibited discrimination occurred." James, 233 F.3d at 156.
II. Retaliation
To establish a prima facie case of retaliation, the plaintiff must show
"(1) participation in a protected activity; (2) that the defendant knew of the protected
activity; (3) an adverse employment action; and (4) a causal connection between the
protected activity and the adverse employment action." Hicks v. Baines, 593 F.3d 159,
164 (2d Cir. 2010) (quoting Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir.
2005)). To establish a causal connection, plaintiff must demonstrate that "the adverse
action would not have occurred in the absence of the retaliatory motive." Zann Kwan v.
Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013); see also id. at n.5 (Title VII retaliation
claims must be proved based on traditional but-for causation principles). Johnson
argues that client complaints against him were fabricated, various negative memoranda
and evaluations were used "to create a paper trail for termination," Appellant's Br. 15,
and these retaliatory actions were temporally proximate to protected activity.
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Again, we assume that Johnson met his minimal burden of establishing a
prima facie case of retaliation, as required under McDonnell Douglas. The Department
has articulated a legitimate, non-discriminatory reason for firing Johnson -- his poor
performance. We therefore proceed to the ultimate question of whether Johnson has
adduced sufficient evidence from which a reasonable factfinder could conclude he was
retaliated against because of protected activity.
On this record, "no reasonable trier of fact could conclude that retaliation
was the 'but for' reason for [Johnson's] termination." Zann Kwan, 737 F.3d at 852. As
described above, the Department proffered extensive and largely undisputed evidence
detailing concerns with Johnson's performance in reports, evaluations, and memoranda.
Although some of these reports and Johnson's ultimate firing were temporally
proximate to protected activity, such as his March 4, 2011 complaint to the Commission,
"temporal proximity alone is insufficient to defeat summary judgment at the pretext
stage." Id. at 847. Moreover, some reports of Johnson's poor performance -- including
the three instructor complaints in September 2010, the November 30, 2010
memorandum, and the first evaluation -- were made months before he filed the
March 4, 2011 complaint with the Commission. Johnson has not produced any evidence
to allow a reasonable jury to conclude that the Department's concerns about his poor
performance were fabricated. Unlike the plaintiff in Kirkland, for example, Johnson has
not proffered testimony from a coworker or supervisor to support his allegations. Cf.
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Kirkland, 760 F.3d at 226 (noting that plaintiff's claim that certain employees "falsified
and back-dated documents . . . to support [plaintiff's] poor performance reviews" was
"made plausible" by the testimony of another worker -- hired to replace plaintiff -- who
testified she was "asked . . . to gather negative 'information'" on plaintiff after the
company learned plaintiff had sued). In light of the Department's "largely unrefuted
evidence of poor performance, no reasonable trier of fact could conclude that retaliation
was the 'but for' reason for [Johnson's] termination." Zann Kwan, 737 F.3d at 852.
We have considered Johnson's remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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