KAREN LeCRAFT HENDERSON, Circuit Judge:
Karl Hampton (Hampton) appeals the district court's grant of summary judgment to Tom Vilsack (Secretary), Secretary of the United States Department of Agriculture (Department, USDA), on a race discrimination claim he brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. See Hampton v. Vilsack, 760 F.Supp.2d 38 (D.D.C.2011). For the reasons set forth below, we affirm the district court.
Hampton is a black male who began working in the Department's Foreign Agricultural Service (FAS) in 1987.
Hampton had been the subject of two USDA investigations before the investigation at issue here. In April 2002, a USDA employee informed Miller that he had discovered sexually explicit materials in the printer tray of a USDA printer. The USDA Human Resources Division and Computer Security Office conducted an investigation and determined that the materials were printed from Hampton's computer. Acting on a Department employee relations specialist's recommendation, Miller proposed a fourteen-day suspension. Hampton contested the suspension. Ellen Terpstra, a USDA administrator and the deciding official, ultimately sustained two of the three charges against Hampton and reduced his suspension to seven days. Later, in June 2003, FAS's human resources department initiated another investigation involving Hampton, this one alleging that Hampton had a conflict of interest resulting from a food processing company he incorporated in 1998. The investigation — still ongoing in 2004 — revealed that Hampton had failed to disclose his financial interest in the company to USDA as required by its ethics regulations.
In early 2004, Hampton submitted for reimbursement a copy of a hotel receipt. USDA employee Christine Lipscomb processed
In his Report of Investigation (Report), Maxwell concluded, inter alia, that Hampton had submitted for reimbursement nine falsified receipts from hotels at which he stayed during six different business trips. The receipts totaled over $1,400, and were altered — some by pen and others typed in a format inconsistent with each hotel's bona fide receipts — to indicate that Hampton had spent additional nights, thereby increasing the reimbursement amount. The Report was based on eighteen witness interviews, copies of records from Hampton's government-issued credit card, hotel receipts and travel vouchers that Hampton submitted. The results of the investigation relating to Hampton's hotel receipts as well as the earlier conflict of interest investigation were sent to Lucy Muir, a USDA employee relations specialist who had had no earlier contact with Hampton. Muir believed Hampton should be terminated. She discussed the matter with Miller who was the proposing official for any sanction imposed on Hampton. After reviewing the Department's table of penalties, Miller likewise determined that termination was the appropriate sanction. Muir drafted and Miller signed a proposal that Hampton be terminated.
Hampton responded to his proposed termination in writing and at a pre-termination hearing before both Muir and Henwood in March 2005. Shortly after the hearing, Henwood asked Maxwell to investigate further several "reasonable questions" that Hampton raised regarding some of the charges against him. Letter from Roy Henwood to Richard Maxwell and Robert Huttenlocker (May 3, 2005) (Maxwell Letter). Specifically, Henwood asked Maxwell to obtain the original receipts from the hotels or, alternatively, to supplement the record with confirmation from each hotel manager that each receipt had been altered or was otherwise fraudulent. Interviews with managers and employees of the hotels for which Hampton submitted receipts revealed that the receipts were not valid. The interviews also revealed that Hampton threatened legal action against at least one hotel manager if he cooperated with CRS investigators.
On April 25, 2006, Henwood recommended Hampton's termination, sustaining four of the six charges set forth in Miller's termination proposal: Hampton (1) submitted false receipts for reimbursement; (2) failed to properly remit to USDA a credit issued by a hotel to his government-issued credit card; (3) failed to report all required financial interests; and (4) provided false information to CRS as part of an official investigation.
Hampton filed a formal complaint of discrimination with the Department on June 11, 2007. He then filed suit in the district court on December 6, 2007, alleging various claims under Title VII. On January 13, 2011, the district court granted the Department summary judgment on nine of Hampton's ten counts, including his race discrimination claim.
Hampton timely appealed the district court's grant of summary judgment and denial of reconsideration thereof. Hampton's appeal "concerns only his allegation that race was a motivating factor in his termination." Appellant's Br. 3.
We review a grant of summary judgment de novo. Bush v. District of Columbia, 595 F.3d 384, 387 (D.C.Cir. 2010). Summary judgment is appropriate only when "there is no genuine issue as to any material fact." McCready v. Nicholson, 465 F.3d 1, 7 (D.C.Cir.2006) (quoting Fed.R.Civ.P. 56(c)). A genuine issue of material fact exists if the evidence, "`viewed in a light most favorable to the nonmoving party,'" could support a reasonable jury's verdict for the non-moving party. Id. (quoting Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994)).
Under Title VII, it is "an unlawful employment practice for an employer ... to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race [or] color." 42 U.S.C. § 2000e-2(a)(1). To establish an "unlawful employment practice," it is sufficient that "race [or] color ... was a motivating factor for any employment practice,
Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir.2008).
In answering this question, sufficient evidence may include, inter alia, "`(1) the plaintiff's prima facie case; (2) any evidence the plaintiff presents to attack the employer's proffered explanation for its actions; and (3) any further evidence of discrimination that may be available to the plaintiff (such as independent evidence of discriminatory statements or attitudes on the part of the employer).'" Waterhouse v. District of Columbia, 298 F.3d 989, 992-93 (D.C.Cir.2002) (quoting Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1289 (D.C.Cir.1998) (en banc)). Significantly here, "evidence of a subordinate's bias is relevant where the ultimate decision maker is not insulated from the subordinate's influence." Griffin v. Washington Convention Ctr., 142 F.3d 1308, 1312 (D.C.Cir.1998).
Hampton's primary argument is that, because FAS policy prevented Henwood from imposing a sanction more severe than the sanction Miller proposed, Miller's alleged racial animus was a motivating factor in Henwood's decision to terminate Hampton. While Miller's proposed sanction created a ceiling on the sanction that Henwood could impose, it did not create a floor. See 3 F.A.M. 4367(a) (if termination is proposed, deciding official "may decide to ... [w]ithdraw the charges," or "[a]dmonish," "[r]eprimand," "[s]uspend" or terminate the employee).
Moreover, nothing in the record suggests that Henwood's "stated reason [for terminating Hampton] was not the actual reason and that the [Department] intentionally discriminated against [Hampton] based on his race."
Furthermore, the evidence is clear that Henwood — the deciding official — did not merely rely on Miller's proposed sanction in deciding to terminate Hampton. Henwood conducted an independent review of the evidence. He provided Hampton an opportunity to respond in writing and orally to the proposed termination and he even ordered an additional investigation after Hampton raised several "reasonable questions" about the charges made against him at the March 2005 hearing. Maxwell Letter. Ultimately, Henwood withdrew two of the charges that Miller had proposed against Hampton: one for lack of evidence and the other based on evidence Hampton submitted.
In sum, this is not a case in which the deciding official was "dependen[t] upon [a biased subordinate's] opinion" or was "[unable] independently to assess" the basis for sanctioning an employee. Griffin, 142 F.3d at 1311. On the contrary, Henwood "made an independent assessment of [Hampton's] conduct and concluded that [Hampton's] violations of multiple [USDA]
For the foregoing reasons, we affirm the district court's grant of summary judgment to the Secretary.
So ordered.
22 U.S.C. § 4010(a)(2)(A); see also 3 F.A.M. § 4365(a) ("A separation-for-cause hearing before the Foreign Service Grievance Board will be held ... for those employees who are entitled to and do not waive such a hearing.").
If Hampton sought to attack the factual basis of the FSGB's decision, he should have sought judicial review of that decision pursuant to 22 U.S.C. § 4140(a). See 22 U.S.C. § 4140(a) ("Any aggrieved party may obtain judicial review of a final action of ... the Board on any grievance in the district courts of the United States in accordance with the [judicial review] standards set forth in [the Administrative Procedure Act], if the request for judicial review is filed not later than 180 days after the final action of ... the Board...."); see also United States v. Paddack, 825 F.2d 504, 508 n. 5 (D.C.Cir.1987) ("Any party aggrieved by a Board decision may obtain judicial review of that decision in the United States District Court, which reviews the Board's decision under the provisions of 5 U.S.C. § 706[ ]." (citation omitted)).