Carter v. George Washington University

• Decision Date: 29 October 2004
• Docket Number: No. 01-7203.,01-7203.
• Parties: Cynthia Jacobs CARTER, Appellant, v. GEORGE WASHINGTON UNIVERSITY, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

387 F.3d 872

Cynthia Jacobs CARTER, Appellant, v. GEORGE WASHINGTON UNIVERSITY, Appellee.

No. 01-7203.

United States Court of Appeals, District of Columbia Circuit.

Argued September 10, 2004.

Decided October 29, 2004.

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Appeal from the United States District Court for the District of Columbia (No. 99cv03134).

Karl W. Carter, Jr. argued the cause and filed the briefs for appellant. Nathaniel H. Speights entered an appearance.

Karen A. Khan argued the cause and filed the brief for appellee.

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

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

George Washington University denied appellant, an African American born in 1951, promotions to all three positions she applied for over the course of a year. Resigning from GW, appellant sued, claiming race discrimination under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981, age discrimination under the Age Discrimination in Employment Act of 1967, retaliation, constructive discharge, and breach of contract. Appellant's trial counsel, however, conducted virtually no discovery, and GW moved for summary judgment, which the district court granted on all counts. Seeing insufficient evidence in the record from which a jury could find in appellant's favor, we affirm.

I.

After beginning a job at appellee George Washington University, appellant Cynthia Carter received three promotions over five years while earning a master's degree and pursuing a Ph.D. From 1994 onward, Carter worked as Director of Reunions and Events in the Alumni Relations Office. According to Carter, because she spoke out about what she considered discriminatory treatment within that office, her relationship with Michael Worth, GW's Vice President for Development and Alumni Affairs, began deteriorating.

In 1997 and 1998, Carter applied for the positions of Executive Director of Alumni Relations, Director of Development at Mount Vernon College (a former women's college now owned by GW), and Director of Corporate and Foundation Relations. She obtained none of these promotions. Carter then resigned, taking a higher-paying job at Howard University.

Following the second promotion denial, Carter filed a complaint with the Equal Employment Opportunity Commission, which she later amended to cover the third denial. When the EEOC chose not to pursue the complaint, Carter sued GW in the United States District Court for the District of Columbia, raising claims based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e(16); 42 U.S.C. § 1981; the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621-634; and common law. Specifically, she claimed race discrimination regarding all three promotion denials, age discrimination regarding the first two denials, retaliation regarding the last two denials, retaliation regarding an adverse evaluation, constructive discharge, and breach of contract.

Despite what the district court termed "ample opportunity to conduct discovery," Carter's trial counsel (she is now represented by different counsel) deposed no witnesses, served no interrogatories, and requested no admissions. Carter v. George Washington Univ., 180 F.Supp.2d 97, 107 (D.D.C.2001); Carter v. George Washington Univ., No. 99-3134 (D.D.C. May 17, 2001). At the very end of the discovery period, Carter's counsel did ask GW to produce certain documents, but because he failed to comply with the Federal Rules of Civil Procedure in submitting this request, "discovery ... ended and plaintiff [had] taken no discovery whatsoever." Carter, No. 99-3134 (D.D.C. May 17, 2001). GW then moved for summary judgment. As part of her opposition, Carter attached her own affidavit, but submitted no sworn statements from any one else. Claiming that Carter's affidavit included "inadmissible hearsay, speculation and conclusions," GW moved to strike numerous paragraphs. Though the district court did not address GW's motion to strike, it granted GW's motion for summary judgment on all counts without referring to Carter's hearsay statements. See 180 F.Supp.2d at 99-102, 111. The district court later denied Carter's motion for reconsideration. Carter v. George Washington Univ., No. 99-3134 (D.D.C. Aug. 18, 2003).

II.

Before addressing the merits of Carter's appeal, we consider GW's motion in this court to strike several of Carter's exhibits and those parts of her opening brief that reference them. Specifically, GW argues that certain pages from Carter's deposition and the university's personnel manual were never presented to the district court and thus cannot be part of the record on appeal. Conceding that her lawyer failed to file these documents in opposition to GW's motion for summary judgment, Carter insists that counsel did file them as attachments to her motion for reconsideration. GW responds that even were this true, Carter may not have a "second bite at the apple" by including in her motion for reconsideration evidence which she could have submitted to the district court prior to summary judgment.

We need not consider GW's latter argument, for our review of the district court's docket sheet and file convinces us that Carter's trial counsel never filed the disputed documents as attachments to the motion for reconsideration, although the motion itself made reference to them. This circuit will not normally consider evidence that a party never presented to the district court. Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1035-36 (D.C.Cir. 1988); see Fed. R.App. P. 10(a) (describing the composition of the record on appeal). To be sure, in Eureka Investment Corp. v. Chicago Title Insurance Co., 743 F.2d 932, 945 n. 55 (D.C.Cir.1984), we treated as part of the record an exhibit never formally moved into evidence in the district court, but we did so because all parties and the district court treated the exhibit as evidence. In this case, by contrast, GW objected to the documents from the first possible moment, and the district court never mentioned them in its denial of Carter's motion for reconsideration, Carter, No. 99-3134 (D.D.C. Aug. 18, 2003).

We therefore grant GW's motion to strike and will disregard the disputed exhibits in the remainder of this opinion.

III.

This brings us, then, to Carter's challenges to the district court's entry of summary judgment for GW. As usual, we review a district court's grant of summary judgment de novo and will affirm only if, viewing the evidence in the light most favorable to Carter and drawing all reasonable inferences accordingly, we conclude that no reasonable jury could reach a verdict in Carter's favor. See Holbrook v. Reno, 196 F.3d 255, 259-60 (D.C.Cir.1999); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986).

Because Carter never claimed in the district court, as she does here, that the record contains direct evidence of discrimination, she has waived this argument. See Ben-Kotel v. Howard Univ., 319 F.3d 532, 535 (D.C.Cir.2003) (finding direct-evidence argument waived when not raised below). We will therefore evaluate her claims under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, in order to establish a prima facie case for a discrimination claim, the plaintiff must show that (1) she "belongs to a" protected class; (2) she "applied and was qualified for a job for which the employer was seeking applicants"; (3) "despite [her] qualifications, [she] was rejected"; and (4) "after [her] rejection, the position remained open and the employer continued to seek applicants from persons of [her] qualifications." McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. For a retaliation claim, the plaintiff must show that "(1) she engaged in a statutorily protected activity; (2) she suffered an adverse employment action; and (3) there is a causal connection between the two." Taylor v. Small, 350 F.3d 1286, 1292 (D.C.Cir. 2003). "Where, as here, the plaintiff claims that the retaliation took the form of a failure to hire, the plaintiff must also show: 4) that [she] applied for an available job; and 5) that [she] was qualified for that position." Morgan v. Fed. Home Loan Mortg. Corp., 328 F.3d 647, 651 (D.C.Cir.2003).

If the plaintiff satisfies her prima facie case, then the employer must "produce admissible evidence that, if believed, would establish that [its] action was motivated by a legitimate, nondiscriminatory reason." Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1151 (D.C.Cir.2004). Once the employer has met this burden of production, the burden-shifting framework disappears, and a court reviewing summary judgment looks to whether a reasonable jury could infer intentional discrimination or retaliation from all the evidence, including "(1) the plaintiff's prima facie case; (2) any evidence the plaintiff presents to attack the employer's proffered explanation for its action; and (3) any further evidence of discrimination that may be available to the plaintiff (such as independent evidence of discriminatory statements or attitudes on the part of the employer)." Waterhouse v. District of Columbia, 298 F.3d 989, 992-93 (D.C.Cir. 2002) (quoting Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1289 (D.C.Cir.1998) (en banc)) (internal quotation marks omitted); see also Kidd v. District of Columbia, 206 F.3d 35, 46 (D.C.Cir.2000).

Because the McDonnell Douglas framework governs all of Carter's Title VII, ADEA, and 42 U.S.C. § 1981 claims, Hall v. Giant Food, Inc., 175 F.3d 1074, 1077 (D.C.Cir.1999) (applying framework to ADEA claims); Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1412 n. 7 (D.C.Cir.1988) (applying framework to § 1981 claims), we shall apply it to each of her three promotion denials in turn.

Executive Director...