Carney v. American University

• Decision Date: 11 August 1998
• Docket Number: No. 97-7080,97-7080
• Citation: 331 U.S.App. D.C. 416,151 F.3d 1090
• Parties: 77 Fair Empl.Prac.Cas. (BNA) 1115, 73 Empl. Prac. Dec. P 45,469, 331 U.S.App.D.C. 416, 128 Ed. Law Rep. 652 Darion M. CARNEY, Appellant v. THE AMERICAN UNIVERSITY, Appellee
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1090

151 F.3d 1090

77 Fair Empl.Prac.Cas. (BNA) 1115,

73 Empl. Prac. Dec. P 45,469, 331 U.S.App.D.C. 416,

128 Ed. Law Rep. 652

Darion M. CARNEY, Appellant v. THE AMERICAN UNIVERSITY, Appellee

No. 97-7080.

United States Court of Appeals District of Columbia Circuit.

Argued May 12, 1998.

Decided Aug. 11, 1998.

Appeal from the United States District Court for the District of Columbia (No. 95cv01054).

David H. Shapiro, Washington, DC, argued the cause for appellant. With him on the briefs was Jennifer R. Levin.

Steven R. Semler, Washington, DC, argued the cause and filed the brief for appellee.

Before: WALD, WILLIAMS and TATEL, Circuit Judges.

TATEL, Circuit Judge:

Claiming race discrimination and retaliation, appellant challenges the district court's grant of summary judgment to her former employer, The American University. Because we find that appellant raised no genuine issues of material fact regarding either her non-promotion or her dismissal claims, but that she has identified a genuine factual dispute over the alleged retaliation, we affirm in part, reverse in part, and remand.

I

A senior administrator at The American University since 1981, appellant Darion Carney became Director of Student Services in 1988, the highest ranking African American at the University. A year later, she became Acting Dean of Students, serving in that capacity for two years while the University searched for a permanent Dean. She applied for the permanent position, but the University selected someone else. She then returned to her former position as Director of Student Services. Two years later, the University commenced "downsizing," a process which resulted in the elimination of Carney's position and her dismissal.

Soon after she lost her job, Carney informed the University by letter that she intended to sue. About the same time, a question arose as to whether she might be entitled to an additional three months' severance pay on top of her existing severance package. The University did not give her the extra three months' pay.

Invoking 42 U.S.C. § 1981 and the District of Columbia Human Rights Act, D.C.CODE ANN. §§ 1-2512, 1-2525 (1992 & Supp.1998), Carney filed suit in the United States District Court for the District of Columbia, claiming that the University discriminated against her on the basis of her race when it did not select her for the Dean of Students position, and again when it eliminated her position. She also claimed that the University withheld extra severance pay in retaliation for exercising her civil rights. In defense, the University asserted that it had legitimate, nondiscriminatory reasons for not hiring her and for subsequently eliminating her position. With respect to her retaliation claim, the University argued first that it crafted Carney's severance package before it knew that she intended to sue, and second, that all evidence of linkage between the extra severance pay and her lawsuit is contained in inadmissible settlement correspondence.

The district court granted summary judgment for the University. The court found that Carney failed to rebut the University's legitimate, nondiscriminatory reasons for its decisions not to promote her and to eliminate her position, and that Carney had pointed to no evidence that race played any role in those decisions. The court also rejected Carney's retaliation claims, finding that she failed to establish a causal link between the exercise of her civil rights and the University's failure to make additional severance payments. Our review is de novo. Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994).

II

In order to evaluate claims under 42 U.S.C. § 1981, which prohibits racial discrimination in the "making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship," 42 U.S.C. § 1981(b), courts use the three-step McDonnell Douglas framework for establishing racial discrimination under Title VII. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 & n. 13, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Barbour v. Merrill, 48 F.3d 1270, 1276 (D.C.Cir.1995) (citing Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989)). Under that framework, the plaintiff must first establish a prima facie case, i.e., that she is a racial minority, that she applied for an available position for which she was qualified, that she was rejected, and that the employer either filled the position with a non-minority or continued its search. If the plaintiff establishes a prima facie case, the burden shifts to the employer to rebut the inference of discrimination by producing a legitimate, nondiscriminatory reason for the challenged employment decision. The burden then returns to the plaintiff to show that the proffered reason was pretextual. Id. Although the burden of persuasion always remains with the plaintiff, to survive summary judgment the plaintiff need only raise a genuine issue of material fact with respect to each element of the McDonnell Douglas framework. See Coward v. ADT Security Systems, Inc., 140 F.3d 271, 274 (D.C.Cir.1998). The nonmovant (here Carney), while entitled to all justifiable factual inferences, retains the burden of pointing to "affirmative evidence" establishing a genuine factual dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-57, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "If material facts are at issue, or, though undisputed, are susceptible to divergent inferences, summary judgment is not available." Tao, 27 F.3d at 638 (citing Alyeska Pipeline Serv. Co. v. U.S. EPA, 856 F.2d 309, 314 (D.C.Cir.1988)). The same standards govern Carney's D.C. Human Rights Act claims. See Benefits Communication Corp. v. Klieforth, 642 A.2d 1299, 1301-02 (D.C.1994).

The Discrimination Claims

We begin with Carney's claim that the University discriminated against her when it refused to select her for the Dean of Students position. According to the University, Carney had no doctoral degree, her work was unimpressive when she held the position in an acting capacity, and she interviewed poorly.

Although Carney has made out a prima facie case--she was a qualified minority candidate and the University eventually filled the job with a white male--she has pointed to no facts suggesting that the University's reasons for her nonselection were pretextual. The job application explicitly stated that a "doctorate" was "preferred." Carney was the only nondoctorate candidate to make it to the semi-finals. Carney admits that she told the selection committee that she had concerns about the requirement that the Dean remain constantly available, an aspect of the job about which the committee felt particularly strongly. She never disputed that complaints were made about her performance as Acting Dean, e.g., she was not always available and not well known on campus. Finally, Carney does not claim that the selection process was tainted or biased; indeed, she handpicked several members of the selection committee, and of the final four candidates (she was not one), two were African American women.

With respect to Carney's second claim--that the University discriminatorily eliminated her position during downsizing--she argues that evidence of the suspect motivations of her supervisor Dean Maurice O'Connell shows that the University's proffered reasons for eliminating the position were pretextual. According to Carney, having placed her in the Acting Dean position, O'Connell then discouraged her from applying for the permanent position, seeming angry when she did apply. She asserts that after she disobeyed him, he grew hostile, lowered her evaluation, and when downsizing occurred, targeted her job for elimination. From these facts, Carney argues that a jury could conclude that O'Connell was motivated by a racist paternalism that turned hostile when she sought the promotion. The University responds that the elimination of Carney's job had nothing to do with her. According to the University the downsizing required it to eliminate managers at Carney's level and the nature of her job naturally led to its elimination.

Carney points to three pieces of evidence that she claims establish O'Connell's untruthfulness: his personal hostility after she applied for the Dean's position; a full category decline in his evaluation of her between 1991 and 1993; and evidence indicating that although O'Connell asserted that he had not made the elimination decision alone, the other individuals he identifies as having participated--Residential Housing Director Anne Steen, Dean of Students John Martone, and Acting Provost Ann Ferren--played no role at all. From this evidence, Carney argues that a jury could conclude that O'Connell lied about his reasons for eliminating her job and thus infer discriminatory animus.

We think Carney's factual proffer requires too much speculation to create a genuine issue of fact about O'Connell's motivations. See Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 ("If the [nonmovant's] evidence is merely colorable, or is not significantly probative, summary judgment may be granted" (citations omitted)). Although Carney says O'Connell lowered her evaluation after she disobeyed him, the record shows he actually gave her a very good evaluation in October-November 1991, immediately after she applied for the Dean's job and was rejected. That two years later he evaluated her less favorably raises no inference of untruthfulness or hidden motivation, especially in the absence of evidence that she deserved a higher grade.

As to Carney's assertion that O'Connell mischaracterized the decision-making process, O'Connell nowhere denies that he played an important role in eliminating Carney's job. Carney's "contradictions" as to the role of other decisionmakers melt away in the face of undisputed facts. Carney makes much of Steen being on maternity leave from...