Employee's Retaliation Claim Fails Because of Lack of Standing Under Statute and Lack of Evidence to Establish Non-Retaliatory Reason for Termination

Johnson v. Interstate Management Company, LLC d/b/a Hamilton Crowne Plaza Hotel - D.C. Circuit Court of Appeals

Facts:  Robert Johnson ("Johnson") worked as a cook at the Hamilton Crowne Plaza Hotel ("Hamilton") from 1996 until 2011.  The Hamilton was managed by Interstate Managing Company ("Interstate").  In 2007, Johnson began to receive a "steady stream" of warnings about his unsatisfactory job performance.  At different times, Johnson was cited 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 with meat, and following improper procedures for thawing fish, among other incidents.  In March 2010, Johnson was suspended for undercooking chicken at a banquet.  He was eventually reinstated with a "final warning":  "Any violation of any standard of conduct will result in immediate termination of employment."  

After being reinstated, Johnson was cited for thawing frozen chicken in a sink, improperly cooling soup, and setting off a fire alarm by allowing too much smoke to accumulate in the kitchen grill.  In February 2011, after Johnson was found to have cooked chicken with plastic wrap melted under the breading of a piece of the cooked chicken, Interstate conducted an investigation.  Relying on the finding that Johnson cooked the chicken, and his documented history of "repeated performance failings", the Human Resources Director of the Hamilton fired Johnson.

Johnson subsequently sued Interstate and brought a retaliation claim on the grounds that he had actually been improperly fired for making discrimination complaints to the Equal Employment Opportunity Commission ("EEOC") (in 2005, 2007, and 2010) and the Occupational Safety and Health Administration ("OSHA") (with one complaint to OSHA resulting in a $34,200.00 fine against Interstate).  The District Court dismissed the OSHA retaliation claim on the grounds that Section 11(c) of the Occupational Safety and Health Act does not provide a private cause of action for retaliation claims. As for the EEOC retaliation claim (brought under Title VII of the Civil Rights Act of 1964), the District Court dismissed it on the grounds that Johnson presented insufficient evidence to proceed.  Johnson appealed.

Holding:  The Court of Appeals began its analysis of the claim by making quick work of the first retaliation claim brought by Johnson, under the Occupational Safety and Health Act ("Act").  While Section 11(c) provides a remedy for employees who believe they have been subjected to retaliation for reporting an OSHA violation, that cause of action rests with the Secretary of Labor who may bring suit against the employer on the aggrieved employee's behalf.  In addition, the Court was unwilling to read an "implied" cause of action into the Act as there was no evidence that Congress intended to provide a cause of action to anyone besides who was specifically provided for (the Secretary of Labor).  As a result, the Court held that Johnson had no valid retaliation claim cause of action under the Act.

In regard to Johnson's retaliation claim under Title VII of the Civil Rights Act of 1964, the Court held that for Johnson's claim to survive summary judgment, he must have presented sufficient evidence to support his claim.  In regard to this particular cause of action, once an employer has identified a legitimate, non-discriminatory reason for firing an employee, the employee must produce sufficient evidence such that a reasonable jury could find the employer's asserted non-retaliatory reason was not the actual reason the employee was fired and instead the employee was fired as retaliation.  Based upon the facts in this case, Interstate presented a legitimate, non-retaliatory reason for firing Johnson.  As a result of Johnson's repeated performance failings and workplace deficiencies (as identified by Interstate's Human Resources Director), Interstate chose to fire Johnson.  The burden then turned to Johnson to produce sufficient evidence to counter this reasoning.  However, when the Court looked at the evidence in the record, it held that there was not any direct or indirect evidence of retaliation by Interstate.  As identified in the fact stated above, Interstate had identified numerous job deficiencies by Johnson and repeated instances when he failed to properly do his job.  In response, Johnson offered minimal evidence to dispute a majority of the alleged job deficiencies he had been sighted for.  As a result, a reasonable jury could not find that Interstate's reason for firing Johnson was pretextual and therefor an unlawful retaliation.

Judgment:  The D.C. Circuit Court of Appeals upheld the granting of summary judgment in favor of Interstate on the grounds that Johnson did not have statutory authority to file a private cause of action for retaliation in violation of the Occupational Safety and Health Act nor did Johnson present direct or indirect evidence to establish a valid cause of action for retaliation in violation of Title VII of the Civil Rights Act of 1964.

The Takeaway:  This was a great case to read through as the D.C. Circuit Court of Appeals adeptly worked through the language of the Act to establish no private cause of action existed for Johnson...and also that no "implied" cause of action could be read into the language of the statute.  Parsing the language of a statute (and reading into the intent of Congress when it was passed) can often result in a rather mundane and dry brief, but the Court did a good job explaining it a clear and succinct way.

As for Johnson's retaliation claim under Title VII, I think the Court got it right here when they pointed out that based upon the facts (and the fact that there were at least 13 documented instances when Johnson violated company policy), Johnson simply could not produce sufficient evidence to overcome his burden to show that a reasonable jury could find in his favor.  Had Johnson had some evidence, such as an Interstate employee indicating a retaliatory intent/motive, Johnson might have had enough evidence to defeat a summary judgment motion.  However, without any evidence presented to meet his burden, this part of his retaliation claim was bound to fail.

Majority Opinion Judge:  Judge Kavanaugh

Date:  March 3, 2017

Opinion:  hr.cch.com/ELD/JohnsonInterstate030317.pdf