Ester Bullock v. Frank Kendall

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 20, 2022
• Docket: 21-2111
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-2111

ESTER BULLOCK,

Plaintiff - Appellant,

v.

FRANK KENDALL, Secretary, Department of the Air Force,

Defendant - Appellee.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Mary G. Lewis, District Judge. (3:19-cv-02863-MGL)

Submitted: May 26, 2022 Decided: July 20, 2022

Before WYNN and QUATTLEBAUM, Circuit Judges, and KEENAN, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Shannon Polvi, CROMER BABB PORTER & HICKS, LLC, Columbia, South Carolina, for Appellant. Corey F. Ellis, United States Attorney, Kathleen M. Stoughton, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

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PER CURIAM:

Ester Bullock appeals the district court’s order adopting the magistrate judge’s

recommendation and granting summary judgment to Frank Kendall, the Secretary of the

Department of the Air Force, on her retaliation claim raised pursuant to Title VII of the

Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. §§ 2000e to 2000e-17. Finding

no reversible error, we affirm.

We review the district court’s summary judgment ruling de novo, “applying the

same legal standards as the district court and viewing all facts and reasonable inferences in

the light most favorable to the nonmoving party.” Ballengee v. CBS Broad., Inc., 968 F.3d

344, 349 (4th Cir. 2020). “Summary judgment is warranted ‘if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). “A genuine question of material fact

exists where, after reviewing the record as a whole, a court finds that a reasonable jury

could return a verdict for the nonmoving party.” J.D. ex rel. Doherty v. Colonial

Williamsburg Found., 925 F.3d 663, 669 (4th Cir. 2019) (internal quotation marks

omitted). In conducting this inquiry, courts may not “weigh conflicting evidence or make

credibility determinations.” Id. But “the nonmoving party must rely on more than

conclusory allegations, mere speculation, the building of one inference upon another, or

the mere existence of a scintilla of evidence.” Humphreys & Partners Architects, L.P. v.

Lessard Design, Inc., 790 F.3d 532, 540 (4th Cir. 2015) (internal quotation marks omitted).

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Bullock proceeded under the familiar McDonnell Douglas * pretext framework.

Under McDonnell Douglas, to establish a prima facie case of retaliation, Bullock needed

to “show (1) that she engaged in protected activity; (2) that her employer took an adverse

action against her; and (3) that a causal connection existed between the adverse activity

and the protected action.” Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 578 (4th

Cir. 2015) (cleaned up). Bullock spends most of her brief addressing the magistrate judge’s

conclusion that she did not suffer an adverse action. But we agree with the district court

that, even assuming Bullock established an adverse action, she failed to establish a causal

connection between her protected activity and the alleged adverse actions.

A plaintiff may try to prove that a protected activity caused an adverse action

through two routes. First, a plaintiff may establish that the adverse act bears sufficient

temporal proximity to the protected activity. See Clark Cnty. Sch. Dist. v. Breeden, 532

U.S. 268, 273-74 (2001). Second, a plaintiff may establish the existence of other facts that

alone, or together with temporal proximity, suggests that the adverse employment action

occurred because of the protected activity. See Lettieri v. Equant Inc., 478 F.3d 640, 650

(4th Cir. 2007) (recognizing that “other relevant evidence may be used to establish

causation” where temporal proximity is missing).

Here, while there was a gap of several months between Bullock’s initial internal

complaint and the alleged adverse actions, the internal mediation process occurred closer

in time to them, and the “[t]ypes of indirect proof to be considered in finding a causal nexus

* McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

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may include the temporal proximity of factual hearings regarding discrimination

complaints as well as the actual date of filing.” Carter v. Ball, 33 F.3d 450, 460 (4th Cir.

1994). Yet, the allegedly adverse actions—a notice of proposed reprimand, a poor

performance review, and placement on a performance improvement plan—all occurred

after Bullock’s supervisor had warned her of her poor performance.

“Where timing is the only basis for a claim of retaliation, and gradual adverse job

actions began well before the plaintiff had ever engaged in any protected activity, an

inference of retaliation does not arise.” Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d

299, 309 (4th Cir. 2006) (internal quotation marks omitted). Bullock’s supervisor began

documenting Bullock’s performance issues months before she engaged in protected

activity. He warned her in April 2013 that her performance needed to improve, and he

rated her as meets expectations on her annual review only given the tumultuous transition

to her new position. The supervisor then issued two progress reports in the subsequent

months documenting Bullock’s deficiencies. He drafted a letter of concern in November,

one month before Bullock’s internal complaint, further documenting her performance

deficiencies. In light of these documented deficiencies, all of which occurred before

Bullock’s internal complaint, we conclude that Bullock cannot establish causation. See

Ziskie v. Mineta, 547 F.3d 220, 229 (4th Cir. 2008) (“[A] complaining worker is not . . .

insulated from the consequences of . . . poor performance.”).

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Accordingly, we affirm the district court’s orders. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

AFFIRMED