17-3196-cv
Johnson v. Schmid, et al.
                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.


              At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 7th day of September, two thousand eighteen.

PRESENT:            ROBERT D. SACK,
                    REENA RAGGI,
                    DENNY CHIN,
                               Circuit Judges.

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CLEAVEN JOHNSON,
                                        Plaintiff-Appellant,

                                        v.                                           17-3196-cv

CHARLOTTE SCHMID, MALCOLM BLUE,
Individual Capacity, DEPARTMENT OF CHILDREN
AND FAMILIES,
                         Defendants-Appellees,

JOETTE KATZ, Official Capacity, HOFFMAN
GAYLE, Official Capacity, JEANNETTE PEREZ,
Official and Individual Capacity, RAQUELINDA
CABRAL, Official and Individual Capacity,
STEFFANIA HANNA, Official and Individual
Capacity, MAUREEN AUGEUR, Official and
Individual Capacity, DANA GOLDBERG, Official
and Individual Capacity,
                         Defendants.

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FOR PLAINTIFF-APPELLANT:                                     JOSEPHINE S. MILLER, Danbury,
                                                             Connecticut.

FOR DEFENDANTS-APPELLEES:                                    JENNIFER P. BENNETT, Assistant Attorney
                                                             General (Ann E. Lynch, Assistant Attorney
                                                             General, on the brief), for George Jepsen,
                                                             Attorney General of Connecticut, Hartford,
                                                             Connecticut.

                    Appeal from the United States District Court for the District of

Connecticut (Thompson, J.).

                    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

                    Plaintiff-appellant Cleaven Johnson, a former social worker trainee at the

Connecticut Department of Children and Families (the "Department"), appeals the

district court's September 14, 2017 judgment, entered pursuant to its September 11, 2017

ruling, granting summary judgment in favor of defendants-appellees the Department

and two Department employees on Johnson's claims that he was racially discriminated

and retaliated against in violation of 42 U.S.C. §§ 1981 and 1983 and Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq. We assume the parties' familiarity with the

underlying facts, procedural history, and issues on appeal.




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              The following facts are viewed in the light most favorable to Johnson. On

July 16, 2010, Johnson, an African-American male, began working for the Department as

a social worker trainee through the settlement of a prior complaint he filed with the

Connecticut Commission on Human Rights and Opportunities (the "Commission"). At

all relevant times, the Department employed the two individual defendants-appellees,

area director Malcolm Blue and social worker Charlotte Schmid.

              During Johnson's classroom instruction, on three separate occasions, his

instructors -- each of whom was a white female -- complained that Johnson's behavior

was disruptive. The instructors reported that he sighed loudly on September 14, 2010,

used a cell phone in class on September 17, 2010, and fell asleep in class on September

22, 2010. Johnson denies that he was disruptive and contends that the instructors

themselves engaged in equally disruptive behavior during the classes. He also received

a memorandum from his supervisor dated November 30, 2010, documenting concerns

with his written narratives of client visits.

              Johnson's first formal evaluation, which covered his performance from

July through November 2010, gave him an overall rating of "Fair." Johnson and his

attorney sent letters to the Department disagreeing with the evaluation.

              On January 13, 2011, one of the Department's clients -- with whom

Johnson and Schmid jointly conducted a home visit -- emailed Schmid expressing fear

that her children would be taken from her based on threats she received from Johnson.



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Johnson contends that the client told him that Schmid coerced her into making the

complaint. Johnson told Blue that he thought Schmid had set him up, explaining that,

although he did not want to file suit, he would if necessary. Blue, who is also African

American, responded, "[A]re you threatening me?" App. 454. In addition, at some

point several months into his employment, Blue told Johnson, "I know how you got

here" -- referring to Johnson's previous complaint to the Commission -- and "there are

not many of us brothers around here." App. 352. A Human Resources inquiry found

that Schmid did not solicit the client complaint, and Johnson was removed from the

case.

             Johnson filed a second complaint with the Commission, stamped as

received on March 4, 2011, alleging retaliation. On March 31, 2011, Johnson received

another memorandum detailing "ongoing concerns" with his performance, focusing

primarily on problems with clients. App. 407. Johnson's second evaluation, which

covered his performance from November 2010 through May 13, 2011, gave him an

overall rating of "Unsatisfactory." The evaluation concluded that he was "not suited for

the position of Social Worker." App. 260. On May 17, 2011, Blue sent Johnson a letter

advising that Johnson was being dropped "during [his] working test period as a Social

Worker . . . effective May 13, 2011" and noting that the "decision [had] been made based

on [Johnson's] unsatisfactory performance." App. 424.




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              On September 20, 2015, Johnson filed a five-count amended complaint

against the Department and several employees alleging that his firing was the result of

race discrimination and retaliation, in violation of Section 1983, Section 1981, and Title

VII. The district court (Thompson, J.) dismissed all individual defendants except

Johnson and Schmid. On September 11, 2017, the district court granted summary

judgment in favor of the remaining defendants on all claims. Judgment was entered

September 14, 2017. This appeal followed.

              "We review de novo the district court's grant of summary judgment,

construing the evidence in the light most favorable to the non-moving party and

drawing all reasonable inferences in her favor." Mihalik v. Credit Agricole Cheuvreux N.

Am., Inc., 715 F.3d 102, 108 (2d Cir. 2013). Summary judgment is appropriate only if

"there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law." Fed. R. Civ. P. 56(a). "Even in the discrimination context,

. . . a plaintiff must provide more than conclusory allegations . . . and show more than

'some metaphysical doubt as to the material facts.'" Gorzynski v. JetBlue Airways Corp.,

596 F.3d 93, 101 (2d Cir. 2010) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986)); see also Rivera v. Rochester Genesee Reg'l Transp. Auth., 743

F.3d 11, 20 (2d Cir. 2014) (summary judgment is appropriate where there is "nothing in

the record to support plaintiff's allegations other than plaintiff's own contradictory and

incomplete testimony" (quoting Jeffreys v. City of N.Y., 426 F.3d 549, 555 (2d Cir. 2005))).



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              We analyze race discrimination and retaliation claims based on

circumstantial evidence under the three-step McDonnell Douglas burden-shifting

framework. See, e.g., Kirkland v. Cablevision Sys., 760 F.3d 223, 225 (2d Cir. 2014) (citing

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)) (Title VII race discrimination

and retaliation); Garcia v. Hartford Police Dep't, 706 F.3d 120, 127-31 (2d Cir. 2013)

(Section 1981 and Section 1983 race discrimination); Littlejohn v. City of N.Y., 795 F.3d

297, 312-16 (2d Cir. 2015) (Title VII and Section 1981 retaliation). First, an employee

must present a prima facie case of race discrimination or retaliation. Kirkland, 760 F.3d

at 225.

              To state a prima facie case of race discrimination, a plaintiff
              must proffer evidence that (1) he belongs to a protected
              group; (2) he was qualified for his position; (3) his employer
              took an adverse action against him; and (4) the adverse
              action occurred in circumstances giving rise to an inference
              of race discrimination.

Id. The requirement is "minimal" and "a plaintiff's burden is therefore 'not onerous.'"

Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 128 (2d Cir. 2012) (citations

omitted). Second, "the burden shifts to the employer to give a legitimate, non-

discriminatory reason for its actions." Kirkland, 760 F.3d at 225. Third, "[i]f the

employer does so, the burden then shifts back to the plaintiff to show that the

employer's explanation is a pretext for race discrimination or retaliation." Id.

              The "ultimate burden of persuading the trier of fact that the defendant

intentionally discriminated against the plaintiff remains at all times with the plaintiff,"


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Bucalo, 691 F.3d at 129 (alteration omitted) (quoting St. Mary's Honor Ctr. v. Hicks, 509

U.S. 502, 507 (1993)), and "the governing standard is simply whether the evidence, taken

as a whole, is sufficient to support a reasonable inference that prohibited discrimination

occurred," James v. N.Y. Racing Ass'n, 233 F.3d 149, 156 (2d Cir. 2000). We analyze

Johnson's race discrimination and retaliation claims in turn.

I.     Race Discrimination

              Johnson contends that he was fired because of his race because (1) the

three white female instructors engaged in similar conduct to him but were not

disciplined, (2) Johnson was evaluated by different performance criteria than other

social worker trainees, and (3) Blue used a derogatory racial slur after Johnson

intimated that he might file a lawsuit. The district court concluded that these

arguments failed to present a genuine issue for trial. We agree.

              We assume that Johnson met his minimal burden of establishing a prima

facie case of race discrimination, as required under McDonnell Douglas. The Department

has articulated "a legitimate, non-discriminatory reason" for firing Johnson -- his poor

performance. We therefore proceed to the ultimate question of whether Johnson has

adduced sufficient evidence from which a reasonable factfinder could conclude he was

discriminated against because of his race.

              First, a plaintiff may establish an inference of discrimination by

establishing "that a similarly situated employee not in the relevant protected group



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received better treatment," but "those employees must have a situation sufficiently

similar to plaintiff's to support at least a minimal inference that the difference of

treatment may be attributable to discrimination." McGuinness v. Lincoln Hall, 263 F.3d

49, 53-54 (2d Cir. 2001). "Whether two employees are similarly situated ordinarily

presents a question of fact for the jury," Graham v. Long Island R.R., 230 F.3d 34, 39 (2d

Cir. 2000), but here no reasonable jury could conclude that Johnson was sufficiently

similar to the purported comparators. They were instructors while he was a social

worker trainee -- they were supervisors, and he was their student. Hence, they were not

similarly situated as a matter of law.

              Second, Johnson has not proffered evidence to support his argument that

he was subjected to different performance criteria than his coworkers. Johnson

contends that he was required to collect information on his Family Case Plans that his

coworkers were not required to collect. 1 Even assuming that these requirements for

collecting information constitute performance criteria, there is no evidence to support

the inference that any different requirements resulted from impermissible race-based

discrimination, rather than differences in the cases themselves. Moreover, Johnson

provides only two comparators, one of whom was Hispanic, and the other of whom

was also African-American.




1     Family Case Plans are apparently forms that are used to record case information, such as
the members of a household, written narrative assessments, and objectives, among other things.

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              Third, as for the derogatory racial slur, Johnson averred for the first time

in opposing summary judgment that Blue told him, in response to Johnson's suggestion

that he might file a lawsuit, "[A]re you threatening me boy?" App. 355 ¶ 41 (emphasis

added). A party may not defeat summary judgment "by submitting an affidavit in

opposition to a summary judgment motion that, by omission or addition, contradicts

the affiant's previous deposition testimony," Hayes v. N.Y.C. Dep't of Corr., 84 F.3d 614,

619 (2d Cir. 1996), particularly where the contradiction "is left unexplained -- indeed, is

inexplicable," In re Fosamax Prods. Liab. Litig., 707 F.3d 189, 194 (2d Cir. 2013) (per

curiam). Johnson's previous characterization of Blue's statement, made in response to

interrogatories, omitted the word "boy," and he has not even attempted to explain his

initial omission of the racial epithet that he now relies on as key proof of race

discrimination. Moreover, Johnson has not pointed to any other purportedly racist

remarks, see Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998) ("'[S]tray remarks'

alone do not support a discrimination suit."). Thus, Johnson's new allegation regarding

Blue's use of a purported racial epithet does not raise a genuine issue for trial.

              Finally, even setting aside the client complaint Johnson alleges was

improperly solicited by Schmid, the Department proffered extensive and largely

undisputed evidence showing that Johnson was a poor performer, including reports of

his disruptive behavior in classrooms in September 2010; a November 30, 2010

memorandum from his supervisor documenting concerns with his written narratives; a



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March 31, 2011 memorandum detailing "ongoing concerns" with his performance; and

two evaluations reflecting concerns with certain aspects of Johnson's performance.

              In light of the absence of evidence Johnson has produced to support the

inference that he was fired because of his race, balanced against the Department's

strong evidence of his poor performance, we conclude that Johnson failed to meet his

ultimate burden of producing evidence "sufficient to support a reasonable inference

that prohibited discrimination occurred." James, 233 F.3d at 156.

II.    Retaliation

              To establish a prima facie case of retaliation, the plaintiff must show

"(1) participation in a protected activity; (2) that the defendant knew of the protected

activity; (3) an adverse employment action; and (4) a causal connection between the

protected activity and the adverse employment action." Hicks v. Baines, 593 F.3d 159,

164 (2d Cir. 2010) (quoting Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir.

2005)). To establish a causal connection, plaintiff must demonstrate that "the adverse

action would not have occurred in the absence of the retaliatory motive." Zann Kwan v.

Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013); see also id. at n.5 (Title VII retaliation

claims must be proved based on traditional but-for causation principles). Johnson

argues that client complaints against him were fabricated, various negative memoranda

and evaluations were used "to create a paper trail for termination," Appellant's Br. 15,

and these retaliatory actions were temporally proximate to protected activity.



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              Again, we assume that Johnson met his minimal burden of establishing a

prima facie case of retaliation, as required under McDonnell Douglas. The Department

has articulated a legitimate, non-discriminatory reason for firing Johnson -- his poor

performance. We therefore proceed to the ultimate question of whether Johnson has

adduced sufficient evidence from which a reasonable factfinder could conclude he was

retaliated against because of protected activity.

              On this record, "no reasonable trier of fact could conclude that retaliation

was the 'but for' reason for [Johnson's] termination." Zann Kwan, 737 F.3d at 852. As

described above, the Department proffered extensive and largely undisputed evidence

detailing concerns with Johnson's performance in reports, evaluations, and memoranda.

Although some of these reports and Johnson's ultimate firing were temporally

proximate to protected activity, such as his March 4, 2011 complaint to the Commission,

"temporal proximity alone is insufficient to defeat summary judgment at the pretext

stage." Id. at 847. Moreover, some reports of Johnson's poor performance -- including

the three instructor complaints in September 2010, the November 30, 2010

memorandum, and the first evaluation -- were made months before he filed the

March 4, 2011 complaint with the Commission. Johnson has not produced any evidence

to allow a reasonable jury to conclude that the Department's concerns about his poor

performance were fabricated. Unlike the plaintiff in Kirkland, for example, Johnson has

not proffered testimony from a coworker or supervisor to support his allegations. Cf.



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Kirkland, 760 F.3d at 226 (noting that plaintiff's claim that certain employees "falsified

and back-dated documents . . . to support [plaintiff's] poor performance reviews" was

"made plausible" by the testimony of another worker -- hired to replace plaintiff -- who

testified she was "asked . . . to gather negative 'information'" on plaintiff after the

company learned plaintiff had sued). In light of the Department's "largely unrefuted

evidence of poor performance, no reasonable trier of fact could conclude that retaliation

was the 'but for' reason for [Johnson's] termination." Zann Kwan, 737 F.3d at 852.

              We have considered Johnson's remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

                                           FOR THE COURT:
                                           Catherine O'Hagan Wolfe, Clerk




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