                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

VERETTA NORMAN,

                      Plaintiff,

                      v.                          Case No. 1:12-cv-00730 (CRC)

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 work-

related 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.


                                                            
1
  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.  
                                                               3
 
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.
                                                            
2
  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 non-

discriminatory reason for the Department’s decision. Reeves, 530 U.S. at 148, accord Aka v.
                                                 8
 
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
                                                            
3
   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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