Danny Jones v. Thomas Vilsack

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 29, 2021
• Docket: 20-5821
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0302n.06

No. 20-5821

UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Jun 29, 2021 DEBORAH S. HUNT, Clerk ) DANNY JONES, ) Plaintiff-Appellant, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE MIDDLE ) DISTRICT OF TENNESSEE THOMAS VILSACK, Secretary, U.S. Department of ) Agriculture, ) Defendant-Appellee. ) )

BEFORE: GRIFFIN, WHITE, and READLER, Circuit Judges.

CHAD A. READLER, Circuit Judge. Danny Jones filed suit alleging that his employer,

the United States Department of Agriculture, violated both Title VII of the Civil Rights Act of

1964 by retaliating against him in response to claims he filed with his employer’s Equal

Employment Opportunity office, as well as the Rehabilitation Act of 1973 by failing to alter his

working conditions to accommodate his disabilities. The district court granted the Department’s

motion for summary judgment. We now affirm.

BACKGROUND

For many years, Jones has been employed as a Soil Conservationist at the United States

Department of Agriculture’s National Resources Conservation Service (the “Agency”). Today’s

suit traces back to events beginning in 2005. At the time, Lori Pittman, Jones’s co-worker, reported

that Jones, then employed at the Agency’s Murfreesboro office, exposed himself at work. An

ensuing internal investigation proved inconclusive, and no disciplinary action was taken. Jones No. 20-5821, Jones v. Vilsack

responded by filing a slander lawsuit against Pittman as well as an EEO complaint against the

Agency, both of which alleged injury caused by Pittman’s purportedly false allegations. Around

this same time, Pittman contacted the Agency’s EEO office to indicate that she no longer wanted

to work with Jones.

In the years to come, Jones would file a host of EEO complaints against the Agency

alleging retaliation for his engagement in various protected activities. Jones first alleged that the

Agency, in retaliation for his initial EEO complaint and a lawsuit he had filed against the Agency,

retaliated against him by encouraging Pittman to file her own EEO complaint, which resulted in a

second investigation and Jones’s temporary reassignment to the Agency’s Nashville office. Once

temporarily reassigned to Nashville, Jones filed a request for a reasonable accommodation due to

his mental health conditions. When the Agency delayed responding to that request and then

permanently reassigned Jones to the Nashville office, Jones alleged that those actions constituted

retaliation for his accommodation request. And when Jones requested additional accommodations

that were later denied in part, Jones alleged that the partial denial was further evidence of

retaliation as well as unlawful discrimination on the basis of his disability. Finally, Jones also

alleged retaliation when he was reassigned to a different Soil Conservationist position than the one

previously held. At the close of its review, the Agency concluded that no relief was warranted as

to any of Jones’s EEO complaints and issued final agency decisions dismissing his claims.

Failing on these administrative fronts, Jones filed this suit. In it, he alleged that the

Agency’s conduct (detailed briefly above) amounted to retaliation, race discrimination (Jones is

African American), and a failure to accommodate, in violation of Title VII and the Rehabilitation

Act. Following discovery, the Agency moved for summary judgment on all claims. The

magistrate judge recommended that the Agency’s motion be granted. With respect to Jones’s

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retaliation claims regarding his temporary and then permanent reassignment to Nashville as well

as the delay in addressing his accommodation request, the magistrate judge found that Jones failed

to establish a prima facie case of retaliation due to the absence of a causal connection between his

protected activity and the purportedly adverse actions taken against him. Likewise, as to his

retaliation claim regarding the duties assigned to him following his permanent reassignment, the

magistrate judge concluded that the Agency’s action was not “materially adverse,” as required to

establish a prima facie case of retaliation under Title VII. The magistrate judge also rejected

Jones’s race-discrimination claims (due to a failure to exhaust) and failure-to-accommodate claims

(due to the absence of a prima facie case). These latter two claims have not been pressed on appeal.

Jones submitted objections to the magistrate judge’s report and recommendation. The

district court disagreed with some of the magistrate judge’s reasoning, but ultimately granted the

Agency summary judgment on all claims. Jones’s timely appeal followed.

ANALYSIS

Jones maintains that the district court erred in dismissing four of his retaliation claims. To

establish a prima facie claim of retaliation under Title VII, Jones must show that: (1) he engaged

in a protected activity; (2) the protected activity was known by the Agency; (3) the Agency took

an action that was materially adverse to him; and (4) a causal connection existed between the

protected activity and the materially adverse action. Abbott v. Crown Motor Co., Inc., 348 F.3d

537, 542 (6th Cir. 2003). If Jones makes that showing, the burden shifts to the Agency to offer a

legitimate, nonretaliatory reason for its actions. McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802 (1973). If the Agency does so, the burden shifts back to Jones “to show that the proffered

reasons were not the true reasons for the employment decision, i.e., that the reasons were a pretext

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for retaliation.” Hubbell v. FedEx SmartPost, Inc., 933 F.3d 558, 568 (6th Cir. 2019) (citation

omitted).

We review the district court’s summary judgment decision de novo. Kenney v. Aspen

Techs., Inc., 965 F.3d 443, 447 (6th Cir. 2020). Rule 56’s familiar language instructs that summary

judgment is appropriate where the evidence, viewed in light most favorable to the nonmoving

party, shows that 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). A genuine dispute of material fact exists only

where “a reasonable jury could return a verdict for the nonmoving party.” Baatz v. Columbia Gas

Transmission, LLC, 929 F.3d 767, 771 (6th Cir. 2019) (citation omitted).

I.

Jones first asserts that the district court erred in dismissing three of his retaliation claims

due to his failure to satisfy the causation element of his prima facie case. To satisfy that element,

Jones must demonstrate a causal connection between his protected activity (filing EEO

complaints) and a materially adverse action (of which Jones alleges many). See, e.g., Hubbell,

933 F.3d at 568. Jones’s claims fail unless he can show but-for causation, that is, “proof that the

unlawful retaliation would not have occurred in the absence of the alleged wrongful action or

actions of the employer.” Univ. of Texas S.W. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013); see

also Eckerman v. Tenn. Dep’t of Safety, 636 F.3d 202, 209 (6th Cir. 2010) (“[P]laintiff must

produce enough evidence of a retaliatory motive such that a reasonable juror could conclude that

the [adverse employment action] would not have occurred but for his engagement in protected

activity.”). An intervening cause between the protected activity and an adverse action dispels any

inference of causation. Kenney, 965 F.3d at 450 (citing Kuhn v. Washtenaw County, 709 F.3d 612,

628 (6th Cir. 2013)); Wasek v. Arrow Energy Servs., 682 F.3d 463, 471–72 (6th Cir. 2012) (finding

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that the plaintiff failed to demonstrate a causal connection because his decision to leave the work

site was an intervening event). One factor relevant to determining whether causation is satisfied

in this setting is whether an adverse action occurs close in time to the employer learning of a

protected activity, what we refer to in our cases as “temporal proximity.” Imwalle v. Reliance

Med. Prods., Inc., 515 F.3d 531, 550 (6th Cir. 2008); Kenney, 695 F.3d at 449. Generally speaking,

the more time that elapses between the employer learning of an employee’s protected activity and

the subsequent adverse employment action, the less temporal proximity between those acts,

thereby requiring more evidence of retaliatory motive from the employee. See Kirilenko-Ison v.

Bd. of Educ. of Danville Indep. Schs., 974 F.3d 652, 664–65 (6th Cir. 2020); Yazdian v. ConMed

Endoscopic Techs., Inc., 793 F.3d 634, 650 (6th Cir. 2015).

1. Second Investigation and Temporary Reassignment. Jones asserts that, following his

EEO filing, the Agency retaliated against him by “encouraging Lori Pittman to accuse him of

sexual harassment a second time,” which sparked an investigation and Jones’s temporary

relocation to the Nashville office. Jones’s evidence, however, fails to establish a causal connection

between his protected conduct and the Agency’s ensuing actions.

Following the 2005 investigation into Jones’s alleged misconduct, Jones and Pittman

returned to the Murfreesboro office for approximately six months. Although no major incident

occurred during those six months, the two both testified to experiencing disruptions at work

following Pittman’s allegations against Jones. Jones then filed a slander lawsuit against Pittman.

That suit prompted Pittman to file an informal EEO complaint alleging sexual harassment and a

hostile work environment, in which she requested that she no longer be required to work with

Jones. The Agency in turn notified Jones that because he had been named an “alleged harasser,”

the Agency was initiating an investigation, with Jones being temporarily relocated to the Nashville

5 No. 20-5821, Jones v. Vilsack

office. On this record, Pittman’s EEO complaint—her first time contacting the EEO after her

initial exposure allegation against Jones—was an intervening, legitimate reason for the Agency to

investigate Jones and temporarily relocate him. That intervening cause dooms Jones’s theory of

causation. See, e.g., Kenney, 965 F.3d at 450; Kuhn, 709 F.3d at 628; Wasek, 682 F.3d at 472.

Resisting this conclusion, Jones points to a separate federal lawsuit he filed against the

Agency, one that had been pending for well over a year at the time the Agency temporarily

relocated Jones. Jones v. Johanns, No. 3:04-0883, 2005 WL 8175147 (M.D. Tenn. Dec. 15, 2005),

aff’d, 264 F. App’x 463 (6th Cir. 2007). Jones believes that the Agency used Pittman as a means

by which to retaliate against Jones for this federal lawsuit. But Jones provides no evidence to

support his accusation. And Pittman denied that anyone from the Agency encouraged her to file a

complaint against Jones. All told, lacking evidence to support a causal connection between his

protected activity and the alleged adverse employment action, Jones fails to establish a prima facie

case of retaliation.

2. Delay in Reasonable Accommodation. Jones next argues that the district court erred in

dismissing his claim that the Agency retaliated against him by improperly delaying action on (and

ultimately denying in part) his two requests for a reasonable accommodation. As to the first

request, in October 2006, approximately seven months into his temporary reassignment to

Nashville, Jones verbally sought from then-State Conservationist James Ford an accommodation

to work from home two days a week due to his depression, paranoia, and anxiety. In the district

court, Jones described the Agency’s delay in accommodating him as evidence of race

discrimination (in violation of Title VII) as well as a failure to accommodate (in violation of the

Rehabilitation Act). On appeal, however, Jones characterizes the Agency’s delayed action solely

as a Title VII retaliation claim, asserting that the delay in honoring his request for accommodation

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was done in retaliation for his earlier EEO filing. Because Jones abandoned his race-based and

failure-to-accommodate claims on appeal, and because he failed to preserve in the district court

the theory he presses today, Jones forfeited any claim regarding a delay in honoring his request for

an accommodation. See Swanigan v. FCA US LLC, 938 F.3d 779, 796 (6th Cir. 2019); United

States v. Robinson, 390 F.3d 853, 886 (6th Cir. 2004).

In any event, Jones fails to make a prima facie showing of retaliation. Jones characterizes

his verbal request to Ford to work from home as a formal request to the Agency for a reasonable

accommodation. Ford, however, viewed the request simply as part of ongoing discussions

regarding Jones’s EEO complaint, and thus did not act on the request. In January 2007, following

Ford’s retirement, Jones followed up with the Agency. The Agency soon discovered that Ford

arguably had misunderstood Jones’s request, and that his direct supervisor was unaware of the

request. The Agency arranged to meet with Jones that same day to discuss the matter. Jones

provided the Agency with a letter from his physician supporting his request. After informing Jones

that the letter did not provide enough information for the Agency to make a decision, the Agency

directed Jones to submit additional medical documentation by March 16, 2007. When Jones failed

to do so, the Agency denied his request. Yet upon later receiving additional information from

Jones documenting his disability, the Agency approved his request to work from home two days a

week.

Temporal proximity considerations foreclose Jones’s argument. Jones amended his EEO

complaint in March 2006 yet did not make his accommodation request until some seven months

later, and seven months after his temporary assignment to Nashville. That length of time between

an alleged adverse action and protected activity is too long to support an inference of causation.

See Kenney, 965 F.3d at 449 (concluding that “a roughly 75-day delay between her protected

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activity and an adverse employment action is not, standing alone, a convincing case for proving

causation”); Cooper v. City of North Olmsted, 795 F.2d 1265, 1272 (6th Cir. 1986) (holding a four-

month period was insufficient to establish a prima facie case of retaliation). Jones offers no other

causation theory. And although Jones seemingly followed up on his initial verbal request by

sending an email to Ford, it was not until January 2007 that he contacted anyone else. Once the

Agency learned of the miscommunication, it met with Jones that day, and later approved his

request. We thus see no causal connection between Jones’s EEO filing and any delay in approving

his request.

Jones appears to argue that the Agency also retaliated against him by denying his separate

request for a windowed workspace and Bose noise-cancelling headphones. But Jones forfeited

this argument, not once, but twice. In his amended complaint, Jones’s retaliation claim relating to

his accommodations request made no mention of the denial of a window or headphones as

evidence of retaliation, an approach which he repeated in response to the Agency’s summary

judgment motion. See United States v. Huntington Nat’l Bank, 574 F.3d 329, 332 (6th Cir. 2009);

Brown v. VHS of Mich., Inc., 545 F. App’x 368, 372 (6th Cir. 2013). Nor did Jones object to the

magistrate judge’s conclusion that Jones forfeited these claims, a forfeiture in its own right. See

Thomas v. Arn, 474 U.S. 140, 155 (1985) (requiring litigants to file specific and timely objections

to a magistrate’s report and recommendation to preserve the right to appeal a subsequent order of

the district court adopting that report); Berkshire v. Beauvais, 928 F.3d 520, 530 (6th Cir. 2019)

(describing a failure to object to a magistrate’s report and recommendation as a forfeiture). To the

extent Jones argues on appeal that the denial of his request for a window and noise-cancelling

headphones constitute a failure to accommodate his disability, he forfeited that argument as well,

by both not raising those accommodation denials in response to the Agency’s summary judgment

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motion, and by failing to object to the magistrate judge’s conclusion that Jones did not establish a

prima facie case.

3. Permanent Reassignment. Jones also alleges that his permanent reassignment to the

Nashville office was a retaliatory measure in response to his EEO conduct. By way of background,

Jones’s slander suit prompted Pittman to initiate an EEO action, which prompted Jones to file an

amended EEO complaint. Twenty months later, Jones was permanently reassigned to the

Nashville office. As the magistrate judge opined, temporal proximity considerations mitigated a

finding of a causal connection between the filing of Jones’s first EEO complaint and his permanent

reassignment, given the gap between the two. See Kenney, 965 F.3d at 450. Without additional

evidence supporting a retaliatory motive on the part of the Agency, Jones fails to establish a causal

connection. And even had he done so, the report recommending (and the Agency’s subsequent

decision) that Jones and Pittman not be in the same office was issued around this same time—an

intervening cause (and a legitimate, nonretaliatory reason) justifying the Agency’s decision to

permanently reassign Jones. See id.

II.

Finally, Jones argues that the district court erred in concluding that he failed to demonstrate

pretext to support his retaliation claim centered on the Agency’s decision to reassign him to a

different Soil Conservationist position. The district court held that Jones had established a prima

facie case of retaliation, yet had not established that the decision to reassign him was pretextual.

Roughly a year into Jones’s permanent reassignment to the Nashville office, the Agency

moved Jones from the position of Soil Conservationist on the Geographical Information System

staff to the position of Soil Conservationist on the Ecological Sciences staff. Jones claims that this

change was made in retaliation for him filing a third EEO complaint to address his supervisor’s

9 No. 20-5821, Jones v. Vilsack

alleged failure to provide reasonable accommodations. As evidenced by the Notification of

Personnel Action, however, this “lateral reassignment” of position titles did not affect Jones’s pay

plan, occupation code, grade, step, salary, or pay basis. In fact, the change largely appears to have

been in name only: Jones remained a Soil Conservationist, and was simply reassigned from that

position within the Geographical Information System staff to the same position within the

Ecological Sciences and Planning staff. Because we agree with the district court that Jones failed

to meet his burden to establish pretext, we need not consider whether this reassignment constituted

a materially adverse employment action sufficient to support a prima facie claim, which, in and of

itself, is debatable.

The Agency’s proffered legitimate, nonretaliatory reason for Jones’s change in position

title was that the Tennessee branch of the Agency underwent a reorganization resulting in a

vacancy in a Soil Conservationist position in Nashville. The Agency further explained that since

Jones had already transferred to the Nashville office and had the requisite expertise to fill the

position, the Agency was best served by having Jones fill this vacancy (and to have Pittman

seemingly fill Jones’s prior Soil Conservationist position in Murfreesboro). The Agency also

offered evidence of its practice of reassigning other employees to suit the Agency’s needs.

Jones has not presented a genuine dispute of material fact that these reasons are pretextual.

Rather, Jones contends that Pittman’s motive in making the 2005 allegation against Jones was that

she wanted his job (which she seemingly got) and that the eventual reassignment of job duties was

the culmination of a three-year conspiracy to achieve that end. And while Jones correctly notes

that the district court conflated the Agency’s proffered reasons for Jones’s permanent relocation

to the Nashville office with its reasons for Jones’s reassignment of position, Jones does not point

to any evidence that the asserted reasons for his position reassignment were untrue, were

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insufficient to motivate the reassignment, or did not actually motivate the reassignment. See Tingle

v. Arbors at Hilliard, 692 F.3d 523, 530 (6th Cir. 2012). The district court, therefore, properly

dismissed this claim.

CONCLUSION

For these reasons, we affirm the judgment of the district court.