Ben-Kotel v. Howard University

• Decision Date: 14 February 2003
• Docket Number: No. 01-7155.,01-7155.
• Citation: 319 F.3d 532
• Parties: Jose BEN-KOTEL, Appellant, v. HOWARD UNIVERSITY, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 532

319 F.3d 532

Jose BEN-KOTEL, Appellant, v. HOWARD UNIVERSITY, Appellee.

No. 01-7155.

United States Court of Appeals, District of Columbia Circuit.

Argued October 22, 2002.

Decided February 14, 2003.

Appeal from the United States District Court for the District of Columbia (No. 00cv01968).

Kay Leslie Ackman argued the cause and filed the briefs for appellant. Maxwell O. Chibundu entered an appearance.

Daniel I. Prywes argued the cause for appellee. On the brief was Sheila Lowery Ferguson. Phillip A. Lattimore III entered an appearance.

Before: GINSBURG, Chief Judge, HENDERSON, Circuit Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge:

Jose Ben-Kotel, a native of Chile, claims that Howard University denied him employment because of his national origin, in violation of Title VII of the Civil Rights Act of 1964 and of the D.C. Human Rights Act. The district court, holding that Ben-Kotel had not made out a prima facie case of discrimination, granted summary judgment in favor of the University. On appeal Ben-Kotel argues that the district court misconceived the law, improperly weighed the evidence against him, and denied him due process. Because Ben-Kotel did not raise the first argument before the district court, it is forfeit. The other arguments have no merit.

I. Background

Except as otherwise noted, we recount the facts in the light most favorable to Ben-Kotel. Prior to the Fall 1999 semester Howard University advertised a part-time position for a Spanish instructor, to which Ben-Kotel, a Chilean-born citizen of the United States, responded. Ben-Kotel was at the time a Ph.D. candidate in Spanish Literature at the University of Maryland; he had a master's degree in Spanish and had more than three years' experience teaching Spanish to high school and college students.

After Ben-Kotel telephoned Dr. Aleida Rodriguez, the contact person for the advertised position and a professor at Howard, he had a series of interviews with representatives of the University. In addition to Rodriguez, Ben-Kotel spoke with Dr. Amelia Mondragon, the Spanish language coordinator; Dr. Alphonse Frost, chairman of the Department of Modern Languages and Literatures; and Associate Dean Paul Logan. The conversations with Rodriguez and Mondragon were entirely in Spanish, those with Frost and Logan in English. Rodriguez and Mondragon were pleased with Ben-Kotel's qualifications. Although Frost thought Ben-Kotel's command of English was "flawed," he was nevertheless "quite comfortable in envisioning him in the classroom teaching [the University's] students."

Dean Logan, whose approval was necessary for Ben-Kotel to be hired, was not so comfortable. Logan claims that in their telephone conversation Ben-Kotel had difficulty communicating in English. In particular, Ben-Kotel "had difficulty expressing himself coherently in English and misunderstood some of the questions which I asked." Ben-Kotel states that he and Logan "fully understood each other."

Following his conversation with Ben-Kotel, Logan informed Frost of his misgivings about Ben-Kotel's facility in English. According to Logan, Frost shared this concern. Logan therefore suggested that Frost "ask existing faculty to teach [extra] courses on an overload basis," and Frost agreed. Frost then contacted Ben-Kotel and told him the University would not be offering him a job. Frost told Ben-Kotel, Mondragon, and Rodriguez that Ben-Kotel was denied the position for reasons related to his accent. The University solicited its existing faculty to teach the extra courses, and some of them, including several instructors who, like Ben-Kotel, are natives of primarily Spanish-speaking nations, did so.

The parties dispute whether the University ever filled the part-time position Ben-Kotel sought. Ben-Kotel claims the position was eventually filled by Kadidia Thiere, an African-American woman. As evidence, he points to Logan's deposition testimony that the University hired Thiere to teach Spanish "I think ... in 1999." The University asserts that Thiere was hired in 1998 and did not fill the position advertised in 1999; it points to payroll and other personnel records and to three affidavits.

Upon complaining to and receiving a right-to-sue letter from the Equal Employment Opportunity Commission, Ben-Kotel brought an action in the district court alleging discrimination on the basis of his national origin, in violation of both Title VII, 42 U.S.C. § 2000e et seq., and the D.C. Human Rights Act, D.C.Code Ann. § 2-1401.01 et seq., as well as intentional infliction of emotional distress. Following discovery the district court granted the University's motion for summary judgment on all counts. Ben-Kotel v. Howard Univ., 156 F.Supp.2d 8 (2001). With regard to the Title VII claim, the district court concluded Ben-Kotel had not made out a prima facie case of discrimination because he failed to show that "after [his] rejection, the position remained open and the employer continued to seek applicants." Ben-Kotel, 156 F.Supp.2d at 13 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973)).

The district court rejected Ben-Kotel's argument that the University must have continued to seek applicants for the position he sought because it hired Thiere to teach Spanish in 1999 after it had refused to hire Ben-Kotel. Instead, the district court found the University had hired Thiere in 1998; Logan's statement that he thought Thiere had been hired in 1999 was unpersuasive in the light of all the evidence indicating otherwise. 156 F.Supp.2d at 14.

This court summarily affirmed the judgment for the University on the claim for emotional distress. Because the standards applicable to Ben-Kotel's claims under Title VII and under the D.C. Human Rights Act are the same, the sole issue now before the court is whether the district court erred in granting summary judgment on the Title VII claim.

II. Analysis

Ben-Kotel first argues that the district court erred by requiring him to make out a prima facie case of discrimination, as specified in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Referring to Frost's statements that the University did not hire him because of his accent, he argues that because he "produce[d] direct evidence of discrimination, he may prevail without proving all the elements of a prima facie case." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 997, 152 L.Ed.2d 1 (2002). If he must make out a prima facie case, Ben-Kotel maintains the district court formulated the requirement too narrowly. The court should not have required him to show that "after his rejection, the position remained open and the employer continued to seek applicants," McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824, but instead should have permitted him to show other circumstances that "give[] rise to an inference of discrimination." Brown v. Brody, 199 F.3d 446, 452 (D.C.Cir.1999); see also Swierkiewicz, 534 U.S. at 510, 122 S.Ct. at 997 ("[T]he prima facie case relates to the employee's burden of presenting evidence that raises an inference of discrimination"). Here the circumstance from which he would have us infer discrimination is that, even if the position did not technically remain open, the need for a qualified employee to teach extra Spanish classes remained, as evidenced by the University's arranging for incumbent faculty members to teach the classes. "There is simply no legal basis," he says, "for holding that an employer[] who fills an...