Chappell-Johnson v. Powell

• Decision Date: 17 March 2006
• Docket Number: No. 04-5426.,04-5426.
• Citation: 440 F.3d 484
• Parties: Dorothy CHAPPELL-JOHNSON, Appellant v. Donald E. POWELL, Chairman, Federal Deposit Insurance Corporation, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

440 F.3d 484

Dorothy CHAPPELL-JOHNSON, Appellant v. Donald E. POWELL, Chairman, Federal Deposit Insurance Corporation, Appellee.

No. 04-5426.

United States Court of Appeals, District of Columbia Circuit.

Argued February 3, 2006.

Decided March 17, 2006.

Appeal from the United States District Court for the District of Columbia (No. 03cv01557).

David H. Shapiro argued the cause for appellant. With him on the briefs was Richard L. Swick.

Alan Burch, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Kenneth L. Wainstein, U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney. Jaclyn C. Taner, Counsel, Federal Deposit Insurance Corporation, and R. Craig Lawrence, Assistant U.S. Attorney, entered appearances.

Before: SENTELLE, HENDERSON, and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge.

Appellant, an African American woman in her fifties, claims that her employer facilitated promotions for non-African American and younger employees, but not for her. Because the position to which appellant sought to be promoted was never filled, the district court, allowing appellant no opportunity for discovery, concluded that she had failed to meet her prima facie burden and granted summary judgment to the employer. But given the flexible nature of the prima facie burden, appellant may, depending upon what she uncovers during discovery, be able to prevail even if the employer never filled the position she sought. We therefore reverse and remand with instructions to permit appellant to conduct the discovery she seeks.

I.

Dorothy Chappell-Johnson, an African American woman who was fifty-four years old at the time of the events at issue here, works at the Federal Deposit Insurance Corporation (FDIC). Dissatisfied with her promotion opportunities, she filed a complaint in the U.S. District Court for the District of Columbia, alleging, among other things, that the FDIC discriminated against her on the basis of race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16(a), and age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 633a(a).

According to the complaint, Chappell-Johnson held a "grade CG-11" position until, following a reorganization, her grade was reduced to CG-9. She then became interested in a vacancy announcement for a CG-13 position in her unit, but as a CG-9 was ineligible to compete for it. Her complaint's core factual allegation is as follows:

Although in the past Ms. Chappell-Johnson's supervisor, Lois Cheney (a white female) ... had reduced the grade of vacant positions to permit lower grade employees to compete for them—a practice which benefitted these younger, non-African American employees—Ms. Cheney and the FDIC management refused to lower the target grade of [this particular] CG-13 position ....

Compl. ¶ 7. Accordingly, her complaint alleges,

[b]y not allowing Ms. Chappell-Johnson to compete for the Personnel Management Specialist position in her field and in her own assigned unit at the FDIC, as had been done in the past for non-African American employees, defendant has discriminated against plaintiff on the basis of her race (black) in violation of Title VII.

Id. ¶ 10. The complaint makes a similar allegation of age discrimination. Id. ¶ 13.

Instead of answering the complaint, the FDIC moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for summary judgment pursuant to Rule 56(b). In particular, the FDIC argued that Chappell-Johnson's discrimination claim "must fail for the simple reason that the position was never filled." Def.'s Mem. in Supp. of Def.'s Mot. to Dismiss, or in the Alternative, for Summ. J. 5. In response, Chappell-Johnson moved for additional discovery under Federal Rule of Civil Procedure 56(f), which provides:

Should it appear from the affidavits of a party opposing the [summary judgment] motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

Fed.R.Civ.P. 56(f). In a declaration supporting Chappell-Johnson's motion, her attorney represented to the district court that discovery would reveal, among other things, "[t]he process by which grade levels are determined for vacant positions," Shapiro Decl. 2, and "[t]he reason(s) why [the] vacancy ... was not filled," id. at 4.

The district court denied the FDIC's motion to dismiss. Chappell-Johnson v. Powell, No. 03-1557, slip op. at 5 (D.D.C. Sept. 30, 2004). "In the employment discrimination context," the court reasoned, "all a complaint need state is `I was turned down for a job because of my race.'" Id. (quoting Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1115 (D.C.Cir.2000)). Because Chappell-Johnson made "essentially that statement in her race and age discrimination claims," the court concluded that "it is clear that plaintiff has stated a claim for which relief can be granted under Title VII and the ADEA." Id.

The district court reached a different conclusion with respect to the FDIC's motion for summary judgment. Acknowledging that Chappell-Johnson "argues that consideration of summary judgment is premature, given that no discovery has yet occurred," the court nonetheless concluded that she had "pled herself out of court as to all her claims." Id. at 7. In particular, the district court credited the FDIC's argument that because Chappell-Johnson did not contest the FDIC's assertion that the position she sought was never filled, her claim necessarily failed. "If the position was not filled by someone younger or of a different race," the court continued, "she has not suffered an actionable injury." Id. at 8.

Chappell-Johnson now appeals. We review the district court's grant of summary judgment de novo. Salazar v. Wash. Metro. Transit Auth., 401 F.3d 504, 507 (D.C.Cir.2005). Although we review the denial of a Rule 56(f) motion for abuse of discretion, Paquin v. Fed. Nat'l Mortgage Ass'n, 119 F.3d 23, 28 (D.C.Cir.1997), here Chappell-Johnson argues that the district court's denial of her Rule 56(f) motion rested on an error of law. Thus, "[l]ittle turns ... on whether we label review of this particular question abuse of discretion or de novo," for "[a] district court by definition abuses its discretion when it makes an error of law." Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996).

II.

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court set out a burden-shifting approach to employment discrimination claims in cases where the plaintiff lacks direct evidence of discrimination. To proceed under McDonnell Douglas, the plaintiff "must carry the initial burden under the statute of establishing a prima facie case of racial discrimination." Id. at 802, 93 S.Ct. 1817. If the plaintiff meets this burden, "[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason" for its action. Id. If the employer succeeds, then the plaintiff must "be afforded a fair opportunity to show that [the employer's] stated reason ... was in fact pretext" for unlawful discrimination. Id. at 804, 93 S.Ct. 1817. The McDonnell Douglas framework applies to both Title VII and ADEA claims. Carter v. George Washington Univ., 387 F.3d 872, 878 (D.C.Cir.2004).

"[E]stablishing a prima facie case," the McDonnell Douglas Court explained,

may be done by showing (i) that [the plaintiff] belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.

McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. In setting forth these requirements, however, the Supreme Court emphasized that "[t]he facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required... is not necessarily applicable in every respect to differing factual situations." Id. n. 13. In a similar vein, the Court has made clear that "[t]he burden of establishing a prima facie case of disparate treatment is not onerous," Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and that "the precise requirements of a prima facie case can vary depending on the context and were `never intended to be rigid, mechanized, or ritualistic,'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978)).

Given the Supreme Court's emphasis on flexibility, we have adopted a more general version of the prima facie case requirement: "the plaintiff must establish that (1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination." Brown v. Brody, 199 F.3d 446, 452 (D.C.Cir.1999). To be sure, as the FDIC points out, we explained in Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1150 (D.C.Cir.2004), that in "typical failure-to-hire cases" we apply the original McDonnell Douglas formulation, requiring plaintiffs to show that the position remained open and that the employer continued to seek applicants from persons of complainant's qualifications. It bears noting, however, that even in failure-to-hire cases we impose no requirement that the employer filled the sought-after position with a person outside the plaintiff's protected class. Stella v. Mineta, 284 F.3d 135, 145 (D.C.Cir....