Teneyck v. Omni Shoreham Hotel

• Decision Date: 07 May 2004
• Docket Number: No. 03-7022.,03-7022.
• Citation: 365 F.3d 1139
• Parties: Lillie TENEYCK, Appellant, v. OMNI SHOREHAM HOTEL, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

365 F.3d 1139

Lillie TENEYCK, Appellant, v. OMNI SHOREHAM HOTEL, Appellee.

No. 03-7022.

United States Court of Appeals, District of Columbia Circuit.

Argued March 15, 2004.

Decided May 7, 2004.

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Appeal from the United States District Court for the District of Columbia (No. 99cv03315).

William S. Stancil argued pro hac vice for appellant. On the briefs was Lillie Teneyck, pro se.

Scot A. Hinshaw argued the cause for appellee. With him on the brief was A. Neal Barkus.

Before: EDWARDS and HENDERSON, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

Appellant Lillie Teneyck applied for a position as a housekeeper at the Omni Shoreham Hotel, in Washington, D.C. Teneyck alleges that Omni hired her for the position, but then turned her away before assigning her any work. Teneyck brought suit in the District Court, claiming that Omni had discriminated against her on the basis of her race and national origin, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. (2000), and on the basis of her age, in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621-634 (2000). The suit proceeded to trial and, after Teneyck rested her case before the jury, Omni moved for judgment as a matter of law. The District Court granted judgment to Omni on all claims, holding that Teneyck had failed to present evidence sufficient to make out a prima facie case of national-origin, race, or age discrimination.

We affirm the judgment for Omni as to all claims. Teneyck expressly conceded below that she did not offer sufficient evidence to support her national-origin discrimination claim. That claim was thus waived and is not before us. Although some aspects of the District Court's treatment of Teneyck's race discrimination claim are problematic, our de novo review of the record makes clear that Teneyck offered no evidence indicating that the position for which she applied remained open or that Omni continued to seek applicants of her qualifications. Consequently, she failed to establish one of the key elements of a prima facie case for a Title VII failure-to-hire claim, as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Finally, by failing to adduce any evidence suggesting that she was disadvantaged in favor of a younger person, Teneyck failed to establish a required element of a prima facie case of age discrimination under the ADEA. We find no merit in Teneyck's claim, raised for the first time on appeal, that she was denied a fair trial because of the District Court's allegedly hurried management of the trial proceedings.

I. BACKGROUND

In September 1996, Teneyck applied for a job as a housekeeper at Omni. The parties agree that Teneyck either was not hired or was hired but not permitted to work. On October 2, 1996, Teneyck filed a race and age discrimination complaint against Omni with the District of Columbia Department of Human Rights and Local Business Development ("Department"), the predecessor of the Office of Human Rights. The complaint was cross-filed with the Equal Employment Opportunity Commission ("EEOC"). After an investigation, the Department issued a finding of no probable cause. The EEOC adopted the Department's findings and, in September 1999, issued Teneyck a right-to-sue letter.

Teneyck filed suit against Omni in the District Court on December 14, 1999, proceeding pro se. The court appointed counsel for Teneyck, though she ultimately retained her own counsel. She later filed an amended complaint, asserting claims of race and national-origin discrimination, under Title VII, and age discrimination, under the ADEA. After conducting some discovery, Omni moved for summary judgment on all claims, arguing that Teneyck had failed to make out a prima facie case of discrimination under Title VII or the ADEA. The District Court denied Omni's motion. See Teneyck v. Omni Shoreham Hotel, 224 F.Supp.2d 43 (D.D.C.2002). The court found that Teneyck had established a prima facie case as to all claims, and that there remained a genuine issue of material fact as to Omni's asserted reason for not hiring Teneyck, i.e., that she allegedly was unable to work Sundays. Id., at 45-47.

The trial began on Tuesday, January 28, 2003. The judge informed the jury at the outset of the proceedings that he had some other obligations to which he would need to attend during the trial. First, he indicated that he would have to take a brief recess later that day — which he did — to confer with a jury that was still deliberating in a criminal trial over which he was presiding. January 28, 2003 Tr. ("Tr. I") at 93, 114. The judge also said that he might have to leave around 4:00 p.m. that day to attend his daughter's basketball game. Id. at 93. As it turned out, the game was canceled and the court did not recess until 5:06 p.m. Id. at 144-45, 177. Finally, the judge explained that the trial could not proceed on Friday, January 31, 2003, because the judge had a medical procedure scheduled for that day. Id. at 94. If necessary, he said, the trial could continue into the following week. Id. Teneyck's counsel voiced no objection to any of the scheduling issues raised by the judge.

Before the trial commenced, counsel for Omni told the judge that one of Omni's key witnesses was present but needed to be in Boston, Massachusetts, the following day for work. Counsel requested to put the witness on the stand on the first day of trial, so that she would not have to stay overnight in Washington. Id. at 94-95. Teneyck's counsel said that Teneyck's case-in-chief would require a couple of hours. Id. at 95. The judge then indicated that he would try to get Omni's witness on the stand that day. Id. Teneyck's counsel raised no objection.

Teneyck testified on her own behalf as the sole witness in her case-in-chief. She offered the following testimony relevant to this appeal. Teneyck was 68 years of age at the time of trial. Id. at 106. In September of 1996, she applied for a part-time position as a housekeeper with Omni. Id. at 107, 121. At the time she applied for the position, Teneyck was preparing to retire from her job with the federal government, where she had worked for over 20 years. Id. at 111, 114, 130. Teneyck explained that she applied for the position in order to supplement her retirement income. Id. at 115-16. She had worked for Omni as a housekeeper from 1965 to 1970, prior to taking a job with the government. Id. at 106-07, 120.

Teneyck inquired about part-time housekeeping work at Omni's personnel office and was directed to a vacancy notice for a part-time position, which was posted on a bulletin board in the office. Id. at 108. She filled out an application, indicating her age as 61, and gave it to a "clerk." Id. at 108-09, 128. The clerk was one of two Black women in the office, both of whom Teneyck characterized as "nice and friendly." Id. at 121-22. Teneyck understood from her conversation with one of these women that she was hired for the part-time housekeeping position. Id. at 109. The clerk then called Omni's Executive Housekeeper, who met with Teneyck in a side room in the office for about 20 minutes. Id. at 109-10, 122. Teneyck understood the purpose of this meeting to be to explain her duties and to tell her when to come to work. Id. at 109. She offered no testimony as to the race, national origin, or age of the Executive Housekeeper.

Teneyck described the ensuing interview, as follows: The Executive Housekeeper asked: "Why would you want to clean, want this type of job if you just came from the Government? Why do you want to do this work?" Id. at 110. Teneyck responded that she had worked as a housekeeper at Omni before and did not mind the work. Id. The Executive Housekeeper told Teneyck that the position was full time and would pay minimum wage and that she would not have insurance or benefits. Id. at 110-11. Teneyck assured her that she still wanted the job, and the Executive Housekeeper instructed Teneyck to call her back the next day to find out when to start. Id. at 111-12. When she called the next day, however, the Executive Housekeeper hung up on her. Id. at 112-13, 116. Teneyck called again a couple of hours later and asked for the Executive Housekeeper, but the Executive Housekeeper refused to speak with her. Id. Teneyck did not call Omni again or return to inquire about the position for which she had applied. Id. at 113, 126-27. She never found out whether the job remained open or, if so, who Omni hired for the position. Id. at 120.

Teneyck testified that the Executive Housekeeper never asked her whether she could work weekends. Id. at 111. Teneyck stated that she expected to work Saturdays and Sundays as part of the position, that she had worked Saturdays and Sundays while working for the government, and that she was not attending church at the time such that she would have any problem with working on Sundays. Id. at 111, 114-15, 148. On cross-examination, counsel for Omni asked whether Teneyck was "aware that the Omni Shoreham didn't hire [her] because they claimed that [she] said [she] couldn't work on Sundays." Id. at 128-29. She responded: "That's not true.... I am aware that they said that, but it is not true." Id. at 129.

After Teneyck's testimony on direct, cross-, and redirect examination was complete, the trial judge asked Teneyck's counsel whether he had any other evidence. Counsel responded that Teneyck was prepared to rest her case except for rebuttal. Id. at 151. The judge again asked whether Teneyck was prepared to rest her case-in-chief, and counsel answered in the affirmative. Id. Omni then moved for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a) on the...