NORMAN v. VILSACK

Filing 34

MEMORANDUM AND OPINION re: 25 Defendant's Motion for Summary Judgment. Signed by Judge Christopher R. Cooper on 12/30/2014. (lccrc3, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
VERETTA NORMAN,
Plaintiff,
Case No. 1:12-cv-00730 (CRC)

v.
THOMAS VILSACK, Secretary of United
States Department of Agriculture,
Defendant.

MEMORANDUM OPINION
Veretta Norman, a 46-year-old African-American woman, resigned after working less
than eight months at the U.S. Department of Agriculture. She claims she was constructively
discharged because of her age and race in violation of Title VII of the Civil Rights Act of 1964.
The Department has moved for summary judgment. It offers a number of non-discriminatory
reasons for ending Norman’s probationary employment. Norman, however, has raised genuine
questions of fact regarding the grounds the Department provided for terminating her and has
provided evidence of a possible discriminatory attitude on the part of her supervisor. As a result,
the Court concludes that a reasonable jury could infer that the reasons to dismiss her were
pretexts for discrimination. The Court therefore will deny the Department’s motion for summary
judgment.
I.

Background
A.

Factual Background

Veretta Norman joined the Strategic Initiatives and Partnerships branch of the U.S.
Department of Agriculture in January 2009 as a GS-12 Program Analyst. Compl. ¶¶ 5, 7. Her
duties included building relationships with minority and religious organizations in order to

increase participation in the Department’s subsidized nutrition programs. Id. ¶ 8. Norman’s
supervisor was the branch chief, Jeff Greenfield, who is white. Id. ¶ 9; Greenfield Aff. at A5.
Norman’s immediate colleagues were three younger white and Hispanic women. Compl. ¶ 9.
Approximately eight months into Norman’s tenure, on July 23rd, 2009, she left the office
around 2:30 p.m. in the afternoon. Depo. of Jeff Greenfield, Dec. 18, 2013, at 94 (“Greenfield
Depo.”). According to Greenfield, Norman’s absence caused her to miss the deadline for
submitting her timesheets for the two most recent pay periods. Id. at 99. When Greenfield
confronted Norman the next day, he contends she lied about her whereabouts. Id. at 104.
Norman maintains she truthfully told Greenfield that she was at agency headquarters on workrelated business. Depo. of Veretta Norman, Feb. 7, 2014, at 92–93 (“Norman Depo.”). Seven
days later, Norman received a letter from Greenfield indicating that her probationary
employment would be terminated. Compl. ¶ 19. The letter cited four reasons for the
termination. Def.’s Mot. Summ. J. Ex. 15. First, Greenfield claimed Norman was absent
without leave on the afternoon on July 23rd and later misrepresented why she had left the office
early. Id. Second, Greenfield wrote that “your performance has not improved to a level which
must be expected of a Program Analyst at the GS 12 grade level,” citing Norman’s execution of
a webinar as an example. Id. Third, Greenfield asserted that Norman “failed to follow Branch
requirements” regarding submission of time sheets. Id. And fourth, Greenfield wrote that
Norman did not sign in and out of the Department’s attendance logs on a daily basis, and that
some of her log entries misrepresented the hours she actually worked. Id. In its summary
judgment motion, the Department identified Norman’s purported excessive use of leave as
another reason for her termination. Def.’s Mot. Summ. J. at 21. Any one of these reasons, the

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Department contends, would be sufficient to terminate a probationary employee. Def.’s Mot.
Summ. J. at 20.1
Norman contends that the rationales offered by Greenfield for her termination are
pretexts for racial discrimination. She insists that she substantially complied with the office’s
attendance and leave policies and that she was never counselled about her performance. Pl.’s
Opp’n Mot. Summ. J. at 22–24. She further alleges that Greenfield favored his white
subordinates in various respects and treated her—and at least one other African-American
employee whom he formerly supervised—with disrespect and condescension. Id. at 4–9. The
Department denies any discriminatory animus on Greenfield’s part and has moved for summary
judgment. The Court held a hearing on the motion on December 16, 2014.
B.

Legal Standards

To make an actionable claim of discrimination under Title VII, Norman must allege that
she has suffered an adverse employment action because of her race, color, religion, sex, or
national origin. See 42 U.S.C. § 2000e et seq.; Brady v. Office of Sergeant at Arms, 520 F.3d
490, 493 (D.C. Cir. 2008). An “adverse employer action” for the purpose of establishing
discrimination is one which results in “‘materially adverse consequences affecting the terms,
conditions, or privileges of employment or future employment such that a reasonable trier of fact
could find objectively tangible harm.’” Newton v. Office of Architect of the Capitol, 839 F.
Supp. 2d 112, 115–16 (D.D.C. 2012) (quoting Nurriddin v. Bolden, 674 F. Supp. 2d 64, 89
(D.D.C. 2009)). As long as discrimination was a motivating factor in the employment decision,
a plaintiff may obtain at least declaratory or injunctive relief and attorney’s fees and costs. Univ.

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 Greenfield also testified in his deposition that Norman was running a business from her work
computer, Greenfield Depo. at 134, but the Department does not rely on that rationale in its
briefs.  
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of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2526 (2013) (citing 42 U.S.C. §§ 2000e–
2(m), 2000e–5(g)(2)). The Department has produced evidence, pursuant to the McDonnell
Douglas burden-shifting framework, of legitimate, non-discriminatory reasons for Norman’s
termination. Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973)). Consequently, in order to overcome this
summary judgment motion, Norman must offer sufficient evidence for a reasonable jury to infer
that the Department’s asserted reasons were not the actual reasons for her termination. Brady,
520 F.3d at 494.
The Court must grant the Department’s motion if it has demonstrated that there is no
genuine issue of material fact and that it is entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court must draw all
reasonable inferences in Norman’s favor, accept as true all competent evidence presented by her,
and may not make credibility determinations, weigh evidence, or draw inferences from the facts.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The existence of a dispute
about an immaterial fact, however, will not defeat a motion for summary judgment. Id. at 248.
Moreover, Norman must offer evidence that, while not necessarily admissible at present, “must
be capable of being converted into admissible evidence.” Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369 (D.C. Cir. 2000).
II.

Analysis
Norman attempts to overcome the Department’s summary judgment motion by offering

evidence that casts doubt on its explanations for her termination and evidence that indicates
discriminatory practices or attitudes on the part of her supervisor. The Court first will discuss

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Norman’s evidence rebutting the Department’s proffered explanations before turning to her
evidence of discriminatory conduct.2
A.

Reasons for Termination
1.

Events of July 23 and 24, 2009

The events of July 23 and 24, 2009 appear to have directly precipitated Norman’s
termination a week later. The bulk of the termination letter concerns those events, Def.’s Mot.
Summ. J. Ex. 15, and Greenfield acknowledged that Norman’s conduct on July 23rd led him to
recommend terminating her. Greenfield Depo. at 107. Greenfield maintains that Norman left
the office at 2:30 p.m. on July 23rd and did not return. Her absence, he says, caused her to miss
the deadline for submitting her time sheets for the two most recent pay periods. Id. at 99.
Greenfield maintains that, when he confronted Norman the next day, she told him she had taken
a department shuttle to pick up an employee badge. Id. at 100–01. Doubting Norman’s
explanation, Greenfield says he checked the shuttle logs for that afternoon, which indicated she
did not take the shuttle to agency headquarters. Id. at 130–31. He also says that he contacted the
Department’s security manager, who replied that Norman had missed her appointment. Id. at
105. Greenfield thus accuses Norman of lying to him about her whereabouts. Id. 107. Norman
disputes Greenfield’s version of events. She maintains she drove her own car to headquarters,
was unable to pick up her badge because she had not made an appointment, and waited there to
see if anyone would miss their appointment. She says she truthfully explained all this to
Greenfield the next day. Norman Depo. at 89–94. Norman also accuses Greenfield of twice
changing his story regarding whom he contacted at headquarters. Pl.’s Opp’n Mot. Summ. J. at
16.

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Norman’s counsel acknowledged at the hearing that Norman has abandoned her age
discrimination claims. The Court will therefore grant the Department’s motion as to those
claims.
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The Court expresses no opinion at this stage regarding the credibility of Norman’s
version of her absence from the office. Accepting Norman’s testimony regarding her own
conduct, however, the Court finds that she has offered at least a plausible account of events,
particularly since the Department has not provided any independent evidence to corroborate
Greenfield’s telling. Indeed, Department counsel acknowledged at the motions hearing that a
material question of fact exists regarding these events. Norman therefore has offered sufficient
evidence to support an inference that the primary rationale for her termination was pretextual.
2.

Time Sheets

Another reason cited by the Department for Norman’s termination was her late
submission of time sheets. Def.’s Mot. Summ. J. Ex. 15; Greenfield Depo. at 126–28.
Greenfield specifically alleged that Norman missed the deadline to submit time sheets for pay
periods 13 and 14, on July 23, 2009—the afternoon she was absent from the office. Id. The
Department provides no evidence to establish that Norman submitted late time sheets for any
other time period. Because Norman’s absence on July 23rd is subject to dispute, as discussed
above, and the Department cites no other instances of late time sheets, the Court concludes that
Norman has also raised a genuine question of fact concerning the truthfulness of this rationale
for her termination.
3.

Excessive Leave

The Department also contends it was justified in terminating Norman because she used
excessive leave. Def.’s Mot. Summ. J. at 10. Greenfield testified that he had warned Norman
that her use of leave “was an ongoing problem from the outset,” citing in particular a trip she was
planning that would take her out of the office for 30 days. Greenfield Depo. at 62, 125. Norman
counters that Greenfield has misrepresented her use of leave. She maintains she had requested
and was granted leave without pay when she first interviewed for the job. Norman Decl. ¶ 4.
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Indeed, Norman has submitted evidence showing that she left the position with a positive leave
balance. Id. ¶ 5; Pl.’s Opp’n Mot. Summ. J. Ex. 17. Based on Norman’s testimony and
supporting evidence, the Court concludes that she has raised a genuine question of fact as to
whether this purported reason for her termination was pretextual as well.
4.

Attendance Log Book

The Department contends that Norman was terminated because she did not sign in and
out of the attendance log on a daily basis, and her “notations on the . . . log did not reflect the
actual hours she worked.” Def.’s Mot. Summ. J. at 12–13, 21; Def.’s Reply at 7–9. Counsel
explained at the hearing that the Department began requiring employees to sign in and out of the
logs after September 11, 2001 as a safety measure. Greenfield described it as a way to account
for people “in the event of an evacuation.” Greenfield Depo. at 132. There is no indication that
Norman would have gained additional salary or benefits as a result of any misstatements in the
log book. The Department points out some discrepancies over two weeks where Norman wrote
sign-in times before the office’s badge reader indicated she had entered the building’s garage, or
sign-out times after she had exited the garage. Compare, e.g., Def.’s Mot. Summ. J. Ex. 9 (July
22 badge entry at 9:05 a.m.) with Def.’s Mot. Summ. J. Ex. 13 (July 22 sign in at 8:30 a.m.). But
the discrepancies also cut the other way by a similar length of time on some days. Compare,
e.g., Def.’s Mot. Summ. J. Ex. 9 (July 29 badge exit at 7:06 p.m.) with Def.’s Mot. Summ. J. Ex.
13 (July 29 sign out at 6:15 p.m.). Given the purpose of the log books and the conflicting nature
of the discrepancies, as well as Norman’s testimony that the attendance log policy was not
uniformly enforced, she has raised genuine questions of fact regarding the Department’s
explanation that it terminated her on this basis.

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5.

Work Performance

Finally, the Department maintains that Norman was terminated due to “poor work
performance.” Def.’s Mot. Summ. J. at 20. Greenfield testified that a webinar presentation
Norman prepared needed significant feedback and revisions, and recounted verbally counselling
her regarding her performance. Greenfield Depo. at 62; Greenfield Aff. at A49. Norman’s
second-level supervisor, Duke Storen, also testified that two of Norman’s presentations needed
feedback and revisions. Storen Depo. at 72–74; Storen Aff. at 3. Norman disputes that her
performance was lacking and asserts she was never told otherwise. Norman Decl. ¶ 8.
Although Norman has raised genuine questions of material fact regarding the truthfulness
of the Department’s principal and other supporting rationales for terminating her, she faces a
more difficult obstacle in rebutting her supervisors’ subjective opinions of her work
performance. See Tolson v. James, 315 F. Supp. 2d 110, 116 (D.D.C. 2004) (noting that it is the
decisionmaker’s assessment, not plaintiff’s, that is relevant to a discrimination claim). In the
face of evidence rebutting its four other explanations, the Department could still be entitled to
summary judgment if, for example, “the record conclusively revealed some other,
nondiscriminatory reason for the employer’s decision, or if the plaintiff created only a weak
issue of fact as to whether the employer’s reason was untrue and there was abundant and
uncontroverted independent evidence that no discrimination had occurred.” Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 148 (2000). The Department, however, offers no
corroborating evidence of performance issues or counselling—such as contemporaneous notes
documenting the shortcomings in Norman’s presentations or documentation of meetings with
Norman about her work quality. Given the scant evidence establishing Norman’s alleged poor
performance, the record does not “conclusively” reveal that her performance was a nondiscriminatory reason for the Department’s decision. Reeves, 530 U.S. at 148, accord Aka v.
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Washington Hosp. Ctr., 156 F.3d 1284, 1298 (D.C. Cir. 1998) (en banc) (“[C]ourts traditionally
treat explanations that rely heavily on subjective considerations with caution”).3 Nor does the
record reveal “abundant and uncontroverted independent evidence that no discrimination had
occurred.” Reeves, 530 U.S. at 148. Indeed, as discussed below, it is Norman who has
presented evidence raising an inference of discriminatory motivation on the part of her
supervisor.
B.

Discriminatory Motivation

In addition to calling the reasons for her termination into question, Norman also alleges
that Greenfield engaged in various practices and made certain statements that she says reflect a
discriminatory attitude on his part. None of these actions by themselves would amount to an
adverse employment action for purposes of a Title VII discrimination claim. If true, however,
they might collectively indicate discriminatory animus and therefore support an inference of
pretext. Aka, 156 F.3d at 1289. Norman specifically alleges that Greenfield excluded her—and
only her—from meetings and other office gatherings, Norman Aff. at A13, A14, A19, A36;
spoke to her in a condescending manner and did not introduce her to visitors, id. at A9, A26; and
communicated with her through other employees rather than speaking with her directly, id. at
A15.
Norman supports these allegations with a declaration from B. Warren Brooks, an
African-American GS-13 Management Analyst whom Greenfield supervised before Norman
joined the office. Pl.’s Opp’n Mot. Summ. J. Ex. 8. For example, Brooks likewise describes

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The Department also argues that it is entitled to an inference against discrimination because
Greenfield hired Norman in the first place. Def.’s Reply at 21–22. That Greenfield hired
Norman may be evidence of non-discrimination, but it is not dispositive. Evidence that the same
person hired (or promoted) and then fired an employee cannot immunize an employer from
liability for discrimination and it does not alone suffice to establish summary judgment.
Czekalski v. Peters, 475 F.3d 360, 369 (D.C. Cir. 2007).
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being prohibited from contacting Greenfield on his cell phone, although white employees were
allowed to do so, id. ¶ 5, as well as being excluded from meetings relevant to his work, id. ¶ 6.
Brooks also asserts that Greenfield described African-American organizations and events in
demeaning terms and denigrated Brooks’ outreach to historically black colleges and universities.
Id. ¶¶ 4, 8 (alleging Greenfield’s response to his request to attend a “Blacks in Government
Conference” was “you cannot go to a party” and that “Greenfield told me that the White House
Report on Historical Black Colleges and Universities was ‘not important’”). The Brooks
declaration, which the government has not contested, constitutes independent evidence to
support an inference that Greenfield unlawfully discriminated against Norman.
III.

Conclusion
For the foregoing reasons, the Court concludes that Norman has raised genuine questions

of fact about the Department’s rationales for terminating her and has submitted evidence to
support an inference that her supervisor harbored discriminatory attitudes. She has therefore met
her burden to overcome the Department’s summary judgment motion with respect to her racial
discrimination claims. Any further determinations in this case would require weighing the
credibility of the parties and witnesses, which is properly left for the jury. The Court will,
however, grant summary judgment for the Department on Norman’s age discrimination claims.
The Court will issue a separate Order consistent with this Opinion.

_______________________
CHRISTOPHER R. COOPER
United States District Judge
Date: December 30, 2014

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