United States Court of Appeals, District of Columbia Circuit
September 21, 2016
from the United States District Court for the District of
Columbia (No. 1:11-cv-01702)
Ruthanne M. Deutsch, Supervising Attorney, appointed by the
court, argued the cause as amicus curiae on behalf of
appellant. With her on the briefs were Steven H. Goldblatt,
appointed by the court, and Katherine Connolly, Lauren Ige,
and David Kanter, Student Counsel.
Nicholas T. Moraites argued the cause for appellee. With him
on the brief was Edward R. Noonan.
Before: Henderson, Kavanaugh, and Millett, Circuit Judges.
Kavanaugh, Circuit Judge
Johnson was a cook at a Washington, D.C., hotel managed by
Interstate Management Company. Over several years, Interstate
repeatedly reprimanded Johnson for a variety of unsanitary
cooking and cleaning practices in the hotel kitchen. In 2011,
after concluding that Johnson had prepared a serving of
breaded chicken with a piece of plastic melted under the
breading, Interstate finally decided that enough was enough.
Interstate fired him.
does not believe that his history of unsanitary kitchen
practices was the real reason he was fired. Instead, Johnson
says that Interstate retaliated against him because he had
previously complained (i) to the Occupational Safety and
Health Administration about allegedly unsafe workplace
conditions at the hotel and (ii) to the Equal Employment
Opportunity Commission about alleged employment
discrimination by the hotel.
he was fired, Johnson sued Interstate and raised two claims
relevant to this appeal. First, Johnson asserted a
retaliation claim under Section 11(c) of the Occupational
Safety and Health Act. See 29 U.S.C. § 660(c).
Johnson alleged that Interstate fired him in retaliation for
his filing of a complaint against Interstate with the
Occupational Safety and Health Administration. The District
Court dismissed that claim, holding that Section 11(c) does
not provide a private cause of action for retaliation claims.
Second, Johnson advanced a retaliation claim under
Title VII of the Civil Rights Act of 1964, the Americans with
Disabilities Act, and the Age Discrimination in Employment
Act. See 29 U.S.C. § 623(d); 42 U.S.C.
§§ 2000e-3(a), 12203(a). Johnson alleged that
Interstate fired him in retaliation for his filing of a
discrimination complaint against Interstate with the EEOC.
The District Court granted summary judgment to Interstate on
Johnson's EEOC retaliation claim, concluding that Johnson
did not present sufficient evidence for a reasonable jury to
find that Interstate's stated reason for firing Johnson
was a pretext for retaliation.
agree with the District Court, and we affirm.
1996 until 2011, Robert Johnson was a cook at the Hamilton
Crowne Plaza Hotel in Washington, D.C. The hotel is managed
by Interstate Management Company.
2007, Johnson started receiving a steady stream of warnings
from Interstate about his unsatisfactory job performance.
Johnson was cited at different times 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 while preparing meat, following
improper procedures for thawing fish, and using the wrong
ingredients when preparing meals.
warnings did not do much. In March 2010, Johnson was
suspended for undercooking chicken served at a 250-person
banquet. He was later reinstated with a "final
warning": "Any violation of any standard of conduct
will result in immediate termination of employment."
Counseling/Disciplinary Record (Mar. 8, 2010), J.A. 522.
Johnson's violations nonetheless persisted. Several
months after Johnson's reinstatement, Interstate cited
Johnson for thawing frozen chicken in a sink, cooling soup
improperly, and setting off a fire alarm by allowing too much
smoke to accumulate in the kitchen grill.
February 2011, a hotel employee discovered plastic wrap
melted under the breading of a piece of cooked chicken that
was served for dinner. Interstate conducted an investigation
and concluded that Johnson cooked the chicken with the
plastic in it. Relying on the company's investigation and
Johnson's documented history of "repeated
performance failings, " the Human Resources Director at
the hotel, Vanessa Peters, fired Johnson. Declaration of
Vanessa R. Peters ¶ 8 (Nov. 22, 2013), J.A. 509. By the
time Interstate fired Johnson, Johnson had violated company
policy on at least 13 separate occasions.
traces his firing to a different cause. Over the years,
Johnson had complained a number of times about Interstate to
the Equal Employment Opportunity Commission and to the
Occupational Safety and Health Administration. In 2005, 2007,
and 2010, Johnson filed discrimination complaints with the
EEOC. Those complaints were unsuccessful. In February 2010,
Johnson complained to the Occupational Safety and Health