Morgan v. Federal Home Loan Mortg. Corp.

• Decision Date: 09 May 2003
• Docket Number: No. 01-5403.,01-5403.
• Citation: 328 F.3d 647
• Parties: Tony MORGAN, Appellant, v. FEDERAL HOME LOAN MORTGAGE CORPORATION and Mitchell Delk, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 647

328 F.3d 647

Tony MORGAN, Appellant, v. FEDERAL HOME LOAN MORTGAGE CORPORATION and Mitchell Delk, Appellees.

No. 01-5403.

United States Court of Appeals, District of Columbia Circuit.

Argued October 10, 2002.

Decided May 9, 2003.

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Appeal from the United States District Court for the District of Columbia (No. 98cv01397).

David A. Branch argued the cause and filed the briefs for appellant.

Nancy R. Kuhn argued the cause for appellees. With her on the brief were Diane Marshall Ennist and Kathy B. Houlihan.

Before: SENTELLE, ROGERS, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge.

The plaintiff in this case brought suit against the Federal Home Loan Mortgage Corporation and one of its officers, alleging that the corporation failed to hire him for any of several positions because of his race and in retaliation for his having filed a discrimination complaint with the Equal Employment Opportunity Commission. The district court granted the defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, and we affirm.

I

Plaintiff Tony Morgan, an African-American male, was employed as Director, Executive Corporate Relations at the Federal Home Loan Mortgage Corporation ("Freddie Mac") from January 17, 1995 to March 31, 1996. His employment ended as a result of a reduction in force. In exchange for six months of severance pay and other benefits, Morgan signed a release of all "claims arising out of or relating in any way to [his] employment relationship" prior to April 7, 1996, the effective date of the release. J.A. at 203-04. Before and after executing the release, the plaintiff applied for a number of other positions at Freddie Mac, but was unsuccessful in obtaining reemployment.

On December 11, 1996, Morgan filed a complaint with the Equal Employment Opportunity Commission (EEOC), alleging, inter alia, that Freddie Mac's failure to rehire him was due to racial discrimination. After filing the complaint, Morgan submitted several additional, also unsuccessful, applications for employment with the corporation.

On June 3, 1998, Morgan filed suit against Freddie Mac and three of its officers in the United States District Court for the District of Columbia. The plaintiff alleged that Freddie Mac had refused to rehire him because of his race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and 42 U.S.C. § 1981. He also alleged, inter alia, that the refusal was in retaliation for his having pressed employment discrimination claims with the EEOC, in violation of Title VII, 42 U.S.C. § 2000e-3(a).¹

On November 9, 2000, the district court granted a motion to dismiss Morgan's claims against two of the three individual defendants. After extensive discovery, the remaining defendants, Freddie Mac and its Vice President, Mitchell Delk, moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. By that point, the plaintiff had narrowed his claims to discrimination and retaliation in Freddie Mac's failure to offer him eight positions. The district court granted the defendants' summary judgment motion regarding four of those jobs because Morgan had been rejected for them prior to the effective date of the 1996 release of claims. Morgan v. Federal Home Loan Mortgage Corp., 172 F.Supp.2d 98, 108 (D.D.C.2001). As to the claims relating to the four remaining positions, the court granted summary judgment on the ground that Morgan had failed to establish a prima facie case of discrimination or retaliation. Id. Only the latter four positions are at issue on this appeal.

II

We review the district court's grant of summary judgment de novo. Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C.Cir.2002). Such a grant is appropriate if "`there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(c)). A dispute is "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party," id. at 248, 106 S.Ct. at 2510, and a moving party is "entitled to a judgment as a matter of law" if the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

Because Morgan has no direct evidence that Freddie Mac refused to hire him for any of the positions on account of his race, we analyze those claims under the familiar framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-26, 36 L.Ed.2d 668 (1973). See also Carter v. Duncan-Huggins, Ltd., 727 F.2d 1225, 1232 (D.C.Cir.1984) (applying the McDonnell Douglas framework to § 1981 claims). Under that framework, "the plaintiff must [first] establish a prima facie case of discrimination." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 2106, 147 L.Ed.2d 105 (2000). The plaintiff can satisfy that initial burden by showing "(i) that he 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. at 1824. As the Supreme Court has explained, this framework "demand[s] that the alleged discriminatee demonstrate at least that his rejection did not result from the two most common legitimate reasons on which an employer might rely to reject a job applicant: an absolute or relative lack of qualifications or the absence of a vacancy in the job sought." International Bhd. of Teamsters v. United States, 431 U.S. 324, 358 n. 44, 97 S.Ct. 1843, 1866 n. 44, 52 L.Ed.2d 396 (1977).

If the plaintiff establishes his prima facie case, the defendant then bears the burden of "`produc[ing] evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason.'" Reeves, 530 U.S. at 142, 120 S.Ct. at 2106 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981)). If the defendant produces such evidence, "the McDonnell Douglas framework — with its presumptions and burdens — disappear[s], and the sole remaining issue [is] discrimination vel non." Id. at 142-43, 120 S.Ct. at 2106 (internal quotation marks and citations omitted). At that point, to "survive summary judgment the plaintiff must show that a reasonable jury could conclude that [he] was [rejected] for a discriminatory reason." Waterhouse, 298 F.3d at 992 (citing Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1290 (D.C.Cir.1998)). Although the McDonnell Douglas framework shifts "intermediate evidentiary burdens" between the parties, "`[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Reeves, 530 U.S. at 143, 120 S.Ct. at 2106 (quoting Burdine, 450 U.S. at 253, 101 S.Ct. at 1093-94).

This framework also governs our analysis of Morgan's claims of unlawful retaliation in violation of 42 U.S.C. § 2000e-3(a). See Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C.Cir.1985); Williams v. Boorstin, 663 F.2d 109, 116 (D.C.Cir. 1980). The only difference is the phrasing of the prima facie case: "In order to establish a prima facie case of retaliation, a plaintiff must show: 1) that [he] engaged in a statutorily protected activity; 2) that the employer took an adverse personnel action; and 3) that a causal connection existed between the two." Mitchell, 759 F.2d at 86 (internal quotation marks omitted). Where, as here, the plaintiff claims that the retaliation took the form of a failure to hire, the plaintiff must also show: 4) that he applied for an available job; and 5) that he was qualified for that position. Id. at 86 n. 5; Williams, 663 F.2d at 116 & n. 43.

III

On appeal, Morgan has confined his claims to Freddie Mac's allegedly unlawful failure to offer him four positions for which Morgan applied after the period covered by his 1996 release. We consider the first three of those positions in this Part, and conclude that Morgan failed to make out a prima facie case of discrimination or retaliation as to any of them. We consider the fourth position in Part IV below.

In letters dated July 3, 1997, Morgan applied for three jobs previously posted by Freddie Mac: 1) Director, Business Support; 2) Director, Business Strategies; and 3) Director, Issues Management. With respect to his application for the first of these — Director, Business Support — Freddie Mac responded with a letter advising Morgan that the position was currently on hold and that the corporation had stopped all recruitment. Clarke Letter (July 18, 1997) (J.A. at 289). In support of its motion for summary judgment, Freddie Mac proffered evidence that it had suspended recruitment for the position a month before Morgan applied, and that it was never filled. Gertz E-mail Messages (June 6, 1997) (J.A. at 553-56); Clarke Decl. at ¶ 5 (J.A. at 550).

Morgan offered no evidence to rebut the corporation's assertion that it had suspended recruitment for the Business Support directorship before he applied. He did dispute the contention that Freddie Mac never filled the position, noting that in the fall of 1997, a woman named Ann Herrington was interviewed for and in 1998 accepted a job, entitled "Director, Strategic Planning," in the same department. But the plaintiff offered no evidence to contradict the...