Filed: May 14, 2020
Latest Update: May 14, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-1689 LORENZO JOHNSON, JR., Plaintiff - Appellant, v. OLD DOMINION UNIVERSITY; JOHN R. BRODERICK, President, in his individual capacity; CAROL SIMPSON, Professor (Former Provost), in both her official and individual capacities, Defendants – Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Arenda L. Wright Allen, District Judge. (2:16-cv-00242-AWA-LRL) Argued: January 2
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-1689 LORENZO JOHNSON, JR., Plaintiff - Appellant, v. OLD DOMINION UNIVERSITY; JOHN R. BRODERICK, President, in his individual capacity; CAROL SIMPSON, Professor (Former Provost), in both her official and individual capacities, Defendants – Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Arenda L. Wright Allen, District Judge. (2:16-cv-00242-AWA-LRL) Argued: January 28..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-1689
LORENZO JOHNSON, JR.,
Plaintiff − Appellant,
v.
OLD DOMINION UNIVERSITY; JOHN R. BRODERICK, President, in his
individual capacity; CAROL SIMPSON, Professor (Former Provost), in both her
official and individual capacities,
Defendants – Appellees.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Arenda L. Wright Allen, District Judge. (2:16-cv-00242-AWA-LRL)
Argued: January 28, 2020 Decided: May 14, 2020
Before DIAZ, THACKER, and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Hannah Rogers Metcalfe, METCALFE & ATKINSON, LLC, Greenville,
South Carolina, for Appellant. William Ryan Waddell, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees. ON BRIEF: Mark R.
Herring, Attorney General, Samuel T. Towell, Deputy Attorney General, Gregory C.
Fleming, Senior Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL
OF VIRGINIA, Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Lorenzo Johnson, Jr., a former Information Technology Specialist at Old Dominion
University (“ODU”), filed numerous grievances and document requests while employed at
ODU, alleging, among other things, racial discrimination by his supervisor. Citing
Johnson’s frequent use of the grievance process, repetitive document requests, and
impaired communication skills, ODU required Johnson to undergo a Fitness for Duty
evaluation. After Johnson repeatedly failed to attend the required evaluation, ODU
terminated his employment. Johnson then brought this suit, alleging, as relevant here, that
ODU violated the Americans with Disabilities Act (“ADA”) by requiring him to undergo
the Fitness for Duty evaluation and that ODU violated Title VII of the Civil Rights Act of
1964 (“Title VII”) by terminating him in retaliation for filing grievances and document
requests. The district court granted summary judgment in ODU’s favor. We agree with
the district court and affirm its decision.
The district court provided a thorough statement of the facts, see Johnson v. Old
Dominion Univ., No. 2:16cv242, dismissal order at 2–16 (E.D. Va. May 21, 2018), which
we summarize here in the light most favorable to Johnson, see EEOC v. McLeod Health,
Inc.,
914 F.3d 876, 880 (4th Cir. 2019).
As an Information Technology Specialist, Johnson was responsible for, among other
things, providing technical support for ODU faculty and staff. According to the position
description, an Information Technology Specialist must have the “[a]bility to communicate
clearly and effectively to provide excellent customer service support with a ‘can-do
attitude’ to the Faculty, Staff, and students within the College of Business.” J.A. 314.
3
In November 2011, Johnson received an annual performance evaluation that rated
him as “Below Contributor” in “Customer Relations,” the area in which his “[a]bility to
communicate clearly and effectively” was evaluated. J.A. 336. In addition, under
“Professional Development Goals,” the evaluation listed, “Communicate more effectively
with faculty/students/staff . . . [Johnson] communicates well with [his supervisor] and some
faculty, but not all.” J.A. 336.
In Johnson’s 2012 performance evaluation, he was rated as “Contributor” in
“Customer Relations.” J.A. 345. However, the evaluation still identified his
communication skills as an area that needed improvement. Under “Professional
Development Goals,” the evaluation listed, “Communicate more effectively with
faculty/students/staff.”
Id. The same was true for Johnson’s 2013 performance evaluation.
In the fall of 2011, Johnson’s supervisor, Dr. Alireza Ardalan, requested that
Johnson and the other Information Technology Specialist whom Ardalan supervised, John
Barker, provide him daily reports noting their arrival times, what they did during the day,
and their departure times.
In September 2013, Johnson filed a grievance claiming that he was the only
Information Technology Specialist who had to send Ardalan daily reports. Ardalan
responded that he required both Johnson and Barker to submit the reports. Johnson sought
review of Ardalan’s response, and, at each step of the review process, Johnson’s grievance
was deemed meritless because both Johnson and Barker were required to submit the daily
reports. At the conclusion of the review process, Johnson requested a hearing on the
grievance, which was granted.
4
In connection with the grievance, Johnson submitted a document request to ODU’s
Employee Relations Manager, Kathy Williamson. Johnson sought copies of all daily
reports and related communications submitted to Ardalan by his subordinates, excluding
Johnson, from October 2011 to September 2013. Williamson responded that she couldn’t
provide the documents due to privacy concerns. Johnson then sought a compliance ruling
from ODU’s Office of Employment Dispute Resolution regarding the document request.
That office affirmed Williamson’s decision.
From October 2013 to February 2014, Johnson filed three more grievances and six
more document requests. The grievances stemmed from the denial of his first document
request, Ardalan’s failure to discipline him after he refused to submit his daily reports in
an act of “civil disobedience,” J.A. 438, and alleged retaliation for filing grievances. 1 In
the document requests, Johnson continued to seek copies of the daily reports, though from
shortened time frames. In some of the requests, Johnson only sought copies of the metadata
from the daily reports. The grievances were closed, and the document requests were
denied.
On February 11, 2014, Johnson filed a race discrimination charge with the Equal
Employment Opportunity Commission (“EEOC”). Johnson, who is African American,
alleged that he was required to submit the daily reports, but Barker, who is white, was not.
1
Johnson wanted Ardalan to discipline him so he could “have the opportunity to
present [his] case” regarding the daily reports. J.A. 438. He alleged that Ardalan and an
ODU professor retaliated against him for filing grievances by “withh[olding] software
requirements until the 11th hour with the intent to harass [him], creat[ing] crises, and then
disparag[ing] [his] work.” J.A. 446.
5
Shortly thereafter, Johnson filed a petition for a writ of mandamus in the Norfolk
General District Court, seeking to compel production of the daily reports. The court denied
Johnson’s petition. Within hours of the court’s ruling, Johnson submitted another
document request.
In the lead-up to the hearing on Johnson’s September 2013 grievance, ODU
produced some of the requested documents. The documents showed that Barker had sent
Ardalan an email at the end of the day noting his arrival time, what he did that day, and his
departure time. Johnson questioned the authenticity of the documents and demanded
copies of their metadata. The day before the hearing, Johnson withdrew the grievance.
Ardalan grew concerned about Johnson’s behavior. According to Ardalan, “[t]he
more Mr. Johnson filed grievances the less he was able to communicate with [Ardalan] and
other ODU faculty and staff.” J.A. 316. Johnson’s “communication became so strained
that [Ardalan] was often called upon to act as an intermediary between him and other
faculty members.”
Id. Johnson also “became increasingly divisive and combative and
challenged anything that was said or done concerning his work or behavior.”
Id. “As
[Johnson’s] actions became more strident,” Ardalan worried that Johnson might physically
harm him.
Id. Other faculty and staff members were also concerned about Johnson’s
“adversarial and irrational behavior.” J.A. 404. Ardalan reported his concerns about
Johnson to the ODU Threat Assessment Team, which concluded that Johnson didn’t pose
an imminent threat because he was taking advantage of the grievance system.
ODU determined that Johnson should undergo a Fitness for Duty evaluation. In the
evaluation referral form, Williams explained that Johnson was being referred because of
6
the number of grievances and document requests he had filed, his communication issues
with faculty and staff members, and concern for his “mental health and ability to exercise
sound judgment at work.” J.A. 452.
On April 17, 2014, Carol Simpson, ODU’s former Provost, sent Johnson a
memorandum advising him that he was being placed on paid administrative leave pending
the outcome of the mandatory Fitness for Duty evaluation. In the memorandum, Simpson
stated:
This action is being initiated by the University based on your recent behavior,
as evidenced by repeated demands for the same information as part of
multiple grievances . . . without any indication that these requests will cease
or lead to a resolution. These repeated requests for the same information
amount to misuse of the University’s grievance system. Additional concerns
include your filing of a FOIA request 90 minutes after a judge had denied
you the materials in an identical request, and your inability to work with
others or to interact in a constructive way with supervisors.
J.A. 459.
On three occasions, Johnson failed to attend his scheduled Fitness for Duty
evaluation. On May 28, 2014, ODU issued a written notice of discipline to Johnson stating
that his failure to attend the evaluation violated ODU policy. ODU scheduled another
evaluation, which Johnson again failed to attend. On July 14, 2014, ODU issued a second
written notice of discipline. That notice informed Johnson that his employment was
terminated.
In February 2015, Johnson filed another charge with the EEOC, alleging that ODU
violated the ADA by requiring him to undergo a Fitness for Duty evaluation. The EEOC
issued right-to-sue notices for both of Johnson’s charges.
7
Thereafter, Johnson filed a complaint against ODU, ODU President John Broderick,
and former ODU Provost Simpson (collectively, “ODU”). Johnson alleges, as relevant
here, that ODU violated the ADA by requiring him to undergo a Fitness for Duty evaluation
and that ODU violated Title VII by terminating him in retaliation for filing grievances,
document requests, the state court action, and the first EEOC charge. ODU moved for
summary judgment, and in a well-reasoned opinion, the district court granted ODU’s
motion.
The district court first considered Johnson’s ADA claim. The ADA provides that
“[a] covered entity shall not require a medical examination . . . unless such examination
. . . is shown to be job-related and consistent with business necessity.” 42 U.S.C.
§ 12112(d)(4)(A). EEOC regulations explain that an examination is job-related and
consistent with business necessity if the employer “has a reasonable belief, based on
objective evidence,” that “an employee’s ability to perform essential job functions will be
impaired by a medical condition.” EEOC, ENFORCEMENT GUIDANCE:
DISABILITY-RELATED INQUIRIES AND MEDICAL EXAMINATIONS OF
EMPLOYEES UNDER THE AMERICANS WITH DISABILITIES ACT (ADA) (July 27,
2000),
2000 WL 33407181, at *6.
ODU contends that communication was an essential function of Johnson’s job and
that it reasonably believed, based on objective evidence, that Johnson’s ability to
communicate effectively was impaired. Johnson disputes both points, arguing that ODU’s
alleged concerns regarding his communication skills were pretext for retaliating against
him for filing grievances. In support, Johnson points to the improved ratings in his
8
performance evaluations and ODU’s express statement in the Fitness for Duty evaluation
referral form that it was referring Johnson because of the number of grievances and
document requests he had filed.
The district court agreed with ODU, citing Johnson’s job description, which calls
for the “[a]bility to communicate clearly and effectively to provide excellent customer
service,” J.A. 314, in support of its conclusion that effective communication was an
essential function of Johnson’s job. See Johnson v. Old Dominion Univ., dismissal order
at 22. The district court also found “ample evidence” to establish that Johnson’s ability to
communicate was impaired.
Id. The district court noted that Ardalan was often called
upon to act as an intermediary between Johnson and other faculty members, Johnson
refused to communicate with certain faculty members, and ODU faculty and staff were
concerned about Johnson’s adversarial and irrational behavior.
Id.
As to Johnson’s argument that ODU’s concerns were pretextual, the district court
explained that in deciding to require the Fitness for Duty evaluation, ODU considered
Johnson’s behavior, including his “repeated requests for the same information” and
“misuse of the University’s grievance system,” along with his “inability to establish
effective communication.”
Id. at 23 (cleaned up). Rather than presenting “shifting
justifications,” ODU’s considerations were “neither mutually exclusive nor internally
inconsistent.”
Id. Accordingly, the district court concluded that Johnson hadn’t
demonstrated a genuine dispute of material fact as to ODU’s reasonable belief, based on
objective evidence, that Johnson’s ability to communicate effectively was impaired, and
thus that ODU was entitled to summary judgment on Johnson’s ADA claim.
9
The district court next considered Johnson’s Title VII claim. Title VII prohibits an
employer from retaliating against an employee for opposing prior discrimination. See 42
U.S.C. § 2000e-3(a). Opposition activity includes “utilizing informal grievance procedures
as well as staging informal protests and voicing one’s opinions in order to bring attention
to an employer’s discriminatory activities.” Laughlin v. Metro. Wash. Airports Auth.,
149
F.3d 253, 259 (4th Cir. 1998). Employees may prove that their employer retaliated against
them for engaging in opposition activity through one of two ways: by direct evidence of
retaliatory animus, or through the burden-shifting framework set out in McDonnell
Douglas Corp. v. Green,
411 U.S. 792 (1973). Foster v. Univ. of Md.-E. Shore,
787 F.3d
243, 249 (4th Cir. 2015).
Concluding that Johnson hadn’t produced direct evidence of retaliatory animus, the
district court considered whether Johnson could prevail under the McDonnell Douglas
framework. 2 The McDonnell Douglas framework proceeds in three steps.
Foster, 787
F.3d at 250. First, employees must establish a prima facie case of retaliation.
Id. They do
2
We agree that Johnson can’t proceed under the direct-evidence route. Johnson
argues that there is direct evidence of retaliatory animus in ODU’s statements that it was
requiring the Fitness for Duty evaluation because of the number of grievances and
document requests Johnson had filed. But an employee proceeding under the direct-
evidence route must still show that the opposition activity was the but-for cause of the
retaliatory act. See
id. Here, ODU provided reasons in addition to Johnson’s grievances
for requiring the evaluation. The memorandum notifying Johnson of the evaluation also
references his “inability to work with others or to interact in a constructive way with
supervisors.” J.A. 459. The evaluation referral form states that Johnson “has been cited
for the difficult communication throughout his employment between himself and the
faculty members whose instructional labs he services.” J.A. 452. Thus, Johnson’s
proffered direct evidence of retaliatory animus doesn’t alone show that his filing of
grievances and document requests was the but-for cause of the alleged retaliation.
10
so by showing that they engaged in protected activity, their employer took adverse action
against them, and a causal relationship exists between the protected activity and the adverse
action.
Id. at 252. If the employee establishes a prima facie case, “[t]he burden then shifts
to the [employer] to show that its purportedly retaliatory action was in fact the result of a
legitimate non-retaliatory reason.”
Id. at 250. If the employer makes this showing, the
burden shifts back to the employee to show that the employer’s non-retaliatory reasons
“were not its true reasons, but were a pretext for discrimination.”
Id. (cleaned up).
ODU argues that even if Johnson can establish a prima facie case of retaliation, it
has shown that its purported retaliatory actions—requiring the Fitness for Duty evaluation
and terminating Johnson’s employment—are supported by legitimate, non-retaliatory
reasons. ODU asserts that it required Johnson to undergo a Fitness for Duty evaluation
because of his impaired communication skills, and it terminated Johnson because he had
accumulated two written notices of discipline for failing to attend the required evaluation.
ODU also argues that Johnson can’t show that these reasons were pretextual.
In response, Johnson again argues that ODU’s concerns regarding his
communication skills were pretextual and that ODU terminated him for filing grievances,
document requests, a state court action, and an EEOC charge.
The district court assumed, arguendo, that Johnson could establish a prima facie
case of retaliation, but it concluded that Johnson failed to demonstrate a genuine dispute of
material fact as to the remaining elements of his retaliation claim. Johnson v. Old
Dominion Univ., dismissal order at 25–26. It explained that ODU had “articulated
11
legitimate, non-discriminatory explanations for the actions about which [Johnson]
complains” and that “ODU’s explanations are supported by ample evidence.”
Id. at 26.
In support, the district court cited Ardalan’s statements regarding Johnson’s
difficulties communicating effectively, the faculty and staff’s concerns regarding
Johnson’s behavior, and Johnson’s repeated failures to attend the evaluations.
Id. at 25–
26. The district court also concluded that Johnson failed to produce evidence contradicting
ODU’s legitimate, non-retaliatory reasons for the evaluation and his termination, and that
his “suspicions of ill intent are insufficient to create a genuine issue of material fact
regarding pretext.”
Id. at 26. Thus, the district court held that ODU was entitled to
summary judgment on Johnson’s Title VII claim.
Johnson appealed, making substantially the same arguments he made in the district
court. We review a district court’s grant of summary judgment de novo. McLeod
Health,
914 F.3d at 880. We have carefully considered the controlling law and the parties’
arguments, and we agree with the reasoning set out by the district court and described
above. The record is replete with evidence, unrelated to Johnson’s protected activity, that
Johnson’s communication skills were impaired, that the impairment was affecting his
work, and that he repeatedly failed to attend the required Fitness for Duty evaluation. No
reasonable juror could overlook that evidence to conclude that ODU’s reasons for requiring
the evaluation and for terminating Johnson’s employment were pretextual. For these
reasons, the district court’s grant of summary judgment to ODU is
AFFIRMED.
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