Alfred G. King v. Donald Rumsfeld, Secretary, United States Department of Defense

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 under-performing 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 ease, if King also has cast doubt upon the real motivations behind his unique treatment, he has adduced sufficient evidence to survive summary judgment.

*155In Hawkins v. PepsiCo, Inc., 203 F.3d 274, 280 (4th Cir.2000), a panel of this Court addressed the exact nature of the evidence necessary to establish pretext. Writing for the Court, Judge Wilkinson noted, “[I]nstead of producing evidence that shows [][the employer’s] assessment of [ ][the employee’s] performance was dishonest or not the real reason for her termination — as the law requires — [ ][the employee] disputes the merits of [][the] evaluations.” Id. (emphasis added). In Hawkins, the employee simply took issue with the employer’s assessment of her performance deficiencies. The Court required that the employee actually offer some evidence suggesting that an alternative reason existed for the termination. In Hawkins, beyond the employee’s self-serving and conclusory allegations of racism, there was no such evidence. Hence, in reviewing for pretext at the summary judgment stage, we should assess whether the plaintiff has adduced evidence sufficient to create a genuine doubt in the mind of a reasonable jury regarding the veracity of the proffered justification. Our analysis must be limited to whether the evidence is competent and sufficient to create a genuine issue of material fact for the jury to resolve — as opposed to whether the evidence will overcome cross-examination and the rigors of trial to carry a jury. King maintains that he was treated differently than his similarly situated co-employees. To support this proposition, he offers several factual illustrations, which I find genuinely troubling and deserving of a jury’s consideration.

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 high-, ly charged context that we observe a case of laissezfaire 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 parent had notified him of similar misconduct, and indicated that he had already counseled-Moore regarding the inappropriate touching. During the same meeting, once Moore had left the room, Whitáker assured Inaba that, “[Moore] should not have touched any students within the last seven days.” Id. When Inaba returned home and related Whitaker’s assurance that the inappropriate touching would stop, his son informed him that Moore had touched another student, Damon Dukes, earlier that very day. On the morning of June 3, 1997, Inaba telephoned Whitaker and related his son’s report of the ongoing touching, which clearly undermined his assurances. Id. Whitaker stated that he would investigate the matter. After follow-up conversations with Whitaker on June 4 and June 6, Inaba reported that Whitaker’s investigation of the matter was limited to asking a .third-party whether he too had observed the June 2 touching. Id. Whitaker did not ask the alleged victim of Moore’s conduct about the incident. Finally, frustrated with Whitaker’s apparent *156unwillingness to take his concern seriously, Inaba contacted Damon Dukes’ father on June 9. During this conversation, Mr. Dukes confirmed that the touching had occurred sometime during the previous week, although he could not specify precisely when it occurred. Id.

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 152. 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 152. 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.

Indeed, Inaba’s letter reports no express confirmation by Mr. Dukes that his son had been touched after the reprimand. However, Inaba’s letter does not report that he requested such a confirmation. Indeed, Inaba relates that Mr. Dukes indicated that his son had been touched sometime during the previous week. See J.A. at 333. This conversation occurred on June 9, 1997. Hence, we can assume that the touching occurred sometime on or after June 2, 1997. However, on June 2, 1997, Whitaker had assured Inaba that he had already spoken to Moore regarding the touching, and that he should not have touched any student within the last seven days. It is hardly a great leap to infer from this that Whitaker was on notice regarding the reported touching by Moore during late May 1997. Therefore, Inaba’s June 3, 1997 report to Whitaker regarding an incident alleged to have occurred on June 2, 1997, establishes that Whitaker was aware of reports of ongoing misconduct by Moore — post-reprimand.

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 *157King’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 decision to discharge King. Thus, according to the majority, any unlawful motive that legitimately could be inferred from Carlson’s coercive campaign to “paper” the record with negative reviews, cannot serve as a basis for pretext unless King proffers evidence that Fonteno’s reviews were false and that he was fired, at least in part, on that basis. Supra at 153.

The majority seems to assume that Fon-tenot’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 subpar performance to him,” supra at 153, 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 153. 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.

As we have recognized, “[A] lay witness in a federal court proceeding is permitted under Fed.R.Evid. 701 to offer an opinion on the basis of relevant historical or narrative facts that the witness has perceived.” MCI Telecommunications Corp. v. Wanzer, 897 F.2d 703, 706 (4th Cir.1990)(quot-ing Teen-Ed, Inc. v. Kimball International, Inc., 620 F.2d 399, 403 (3d Cir.1980)). Although lay opinion testimony was once disfavored and presumed excludable, “The modern trend favors the admission of opinion testimony, provided that it is well-founded on personal knowledge [as distinguished from hypothetical facts] and susceptible to specific cross-examination.” Id. (alteration in original) (quoting 3 J. Wein-stein, EvidenceH 701[02] at 7.01-9 and 701-17 (1978)). However, the testimony of such a witness is limited to those opinions or inferences which are: 1) rationally based upon the perception of the witness; 2) helpful to a clear understanding of the testimony or the determination of a fact in issue; and 3) not based upon knowledge within the scope of Rule 702. Fed.R.Evid. 701. Additionally, we must be on guard to *158prevent lay opinion testimony when it involves “meaningless assertions which amount .to little more than choosing up sides.” Mattison v. Dallas Carrier Corp., 947 F.2d 95, 110-11 (4th Cir.1991) (quoting Fed.R.Evid. 701, Advisory Committee Note).

Although the contours of Rule 701 might upon first inspection appear straight-forward, considerable subtlety is often required to avoid the mischaraeterization of competent lay opinion. See, e.g., MCI Telecommunications, 897 F.2d at 706 (citing district court’s error in treating proper lay opinion as expert testimony where witness offered profit projections based upon her personal knowledge of company’s books); Winant v. Bostic, 5 F.3d 767, 772 (4th Cir.1993) (noting that sometimes the characterization of testimony as opinion evidence may be misleading when the focus should be upon rational inferences drawn from facts of which the witness has personal knowledge). Accordingly, courts have admitted lay opinion testimony under Rule 701 that goes well beyond the classic confines of physical perception, , and which requires the exercise of judgment solidly grounded in personal knowledge. See, e.g., United States v. Fowler, 932 F.2d 306, 312 (4th Cir.1991) (admitting lay opinion that defendant knew rules about treatment of classified documents, upon foundation that witnesses were familiar with the documents, their classification and reasons therefor, and the nature of the defendant’s work); MCI Tele-communications, 897 F.2d at 706 (profit projections based upon personal knowledge of company’s finances admissible under Rule 701); Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153 (3d Cir.1993) (upholding admission of lay opinion from plaintiffs owner as to damages, which was based upon personal knowledge and participation in affairs of business, even if witness relied in part upon report prepared by outside accountant in preparing opinion); United States v. Westbrook, 896 F.2d 330, 335-336 (8th Cir.1990) (permitting ex-users to testify as to the identity of a controlled substance based upon their past experience with same). What we may derive from these cases is that the opinion testimony is not admitted due to the “specialized knowledge,” which should be reserved for experts under Rule 702, but because of the particularized knowledge of a witness by virtue of his personal experience in a field (legal or not).

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 evi-dentiary 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 153. 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 Rule 701 adrift from its prudential moorings. If a business owner or bookkeeper, testifying as a lay opinant, may offer such seemingly “specialized” insights as profit projections and damage reports, surely an elementary school teacher can compare two lesson plans, of which he or she has personal knowledge, without qualifying as an expert. Likewise, if an amphetamine aficionado may offer lay opinion comparing powdery substances of unknown provenance, I do not see why a teacher must be treated as an expert to compare the appearance of similar lesson plans. Ultimately, King’s *159proffer of comparative testimony goes not to the merits of the subject work-product, nor to the legitimate expectations of an elementary school supervisor, but simply seeks to establish the similarity of two items of evidence, both of which are personally familiar to the proposed opinant. Therefore, our analysis of pretext should proceed upon the premise that King has demonstrated a genuine factual question as to whether his work-product is comparable to that of his colleagues. The ultimate determination of equivalence, of course, should be reserved for the jury.

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 149. 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 plaintiffs 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 154, but goes on to conclude that King failed to proffer admissible testimony as to such indicia.' Obviously, in light of my discussion of Rule 701, I disagree with this assessment. King’s co-workers’ testimony is an indicator of the equivalence of his performance, and lays the foundation for the inference that by being singled out for discharge, he was treated differently oh the basis of race, rather than performance.

Ultimately, we must recall that we are asked to assess whether King has raised a genuine issue of material fact on the question of pretext. On my review of the evidence, I cannot escape the conclusion that he has done so. I therefore respectfully dissent from the-part of the majority’s opinion affirming the district court’s summary judgment on King’s .retaliatory discharge claim.