Carney, Darion M. v. Amer Univ

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 12, 1998 Decided August 11, 1998

No. 97-7080

Darion M. Carney,

Appellant

v.

The American University,

Appellee

Appeal from the United States District Court

for the District of Columbia

(No. 95cv01054)

David H. Shapiro argued the cause for appellant. With

him on the briefs was Jennifer R. Levin.

Steven R. Semler argued the cause and filed the brief for

appellee.

Before: Wald, Williams and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel.

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 Stu-

dents, serving in that capacity for two years while the Univer-

sity 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 com-

menced "downsizing," a process which resulted in the elimina-

tion 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. s 1981 and the District of Columbia

Human Rights Act, D.C. Code Ann. ss 1-2512, 1-2525 (1992

& Supp. 1998), Carney filed suit in the United States District

Court for the District of Columbia, claiming that the Univer-

sity 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 assert-

ed 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 de-

cisions 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 Universi-

ty'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. s 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 con-

tractual relationship," 42 U.S.C. s 1981(b), courts use the

three-step McDonnell Douglas framework for establishing

racial discrimination under Title VII. See McDonnell Doug-

las Corp. v. Green, 411 U.S. 792, 802-04 & n.13 (1973);

Barbour v. Merrill, 48 F.3d 1270, 1276 (D.C. Cir. 1995) (citing

Patterson v. McLean Credit Union, 491 U.S. 164, 186 (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 chal-

lenged 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 enti-

tled to all justifiable factual inferences, retains the burden of

pointing to "affirmative evidence" establishing a genuine fac-

tual dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255-57 (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 discrimi-

nated 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 non-

doctorate 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 con-

stantly available, an aspect of the job about which the com-

mittee 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 sever-

al 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 Universi-

ty's proffered reasons for eliminating the position were pre-

textual. 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 oc-

curred, 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 individ-

uals 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 specu-

lation to create a genuine issue of fact about O'Connell's

motivations. See Anderson, 477 U.S. at 249-50 ("If the

[nonmovant's] evidence is merely colorable, or is not signifi-

cantly probative, summary judgment may be granted" (cita-

tions 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 decision-

makers melt away in the face of undisputed facts. Carney

makes much of Steen being on maternity leave from March to

June, during which time Carney lost her job, but since the

meetings discussing the downsizing took place in January and

February, nothing in the record contradicts O'Connell's asser-

tion that Steen discussed the matter with him before going on

leave. Carney says that Martone's testimony indicates that

he did not decide to abolish her job, but according to the

record no one ever specifically asked him whether he dis-

cussed Carney's role. Carney disputes the University's as-

sertion that Acting Provost Ferren made the decision to

abolish her position. But Ferren approved O'Connell's rec-

ommendation to eliminate the position and testified that they

discussed the downsizing at length.

Finally, even if O'Connell became hostile towards Carney,

the evidence she points to raises no inference of O'Connell's

mendacity, nor does it undermine his explanation that he

eliminated her position because it was managerial. To be

sure, irrational hostility could, if unexplained, raise an infer-

ence of pretext. But this record provides a reason for

O'Connell's asserted hostility: He thought it inappropriate for

Carney to have applied for Dean of Students after having

chosen search committee members, and then to have listed

O'Connell and other committee members as references.

Since Carney does not dispute that she did these things, on

this record we cannot find that O'Connell's hostility alone

calls into question the University's explanation of its decision

to eliminate Carney's position.

In sum, Carney has failed to point to any real evidence that

O'Connell lied. Mere differences in characterization of evi-

dence, without a single factual contradiction, create no genu-

ine issues for the jury. The district court properly granted

summary judgment to the University on Carney's discrimina-

tion claims.

The Retaliation Claims

Like claims of discrimination, claims of retaliation are

governed by the McDonnell Douglas burden-shifting scheme.

See McKenna v. Weinberger, 729 F.2d 783, 790 (D.C. Cir.

1984). Although our sister circuits disagree about whether

retaliation violates section 1981, compare, e.g., Andrews v.

Lakeshore Rehabilitation Hosp., 140 F.3d 1405, 1412 (11th

Cir. 1998) (finding cognizable retaliation claim under section

1981), with Von Zuckerstein v. Argonne Nat'l Lab., 984 F.2d

1467, 1472 (7th Cir. 1993) (finding no such claim), the Univer-

sity failed to raise this issue on appeal, thus waiving it, see

Oldham v. Korean Air Lines Co., 127 F.3d 43, 50 (D.C. Cir.

1997). We therefore assume without deciding that in addition

to her retaliation claim under the DCHRA, Carney may

proceed under section 1981.

To establish a prima facie case of retaliation, Carney must

show that (1) she engaged in statutorily protected activity;

(2) her employer took an adverse personnel action against

her; and (3) a causal connection exists between the two. See

Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C. Cir. 1985); How-

ard Univ. v. Green, 652 A.2d 41, 45 (D.C. 1994) (standard for

retaliation claims under DCHRA mirrors standard under

Title VII). "The causal connection component of the prima

facie case may be established by showing that the employer

had knowledge of the employee's protected activity, and that

the adverse personnel action took place shortly after that

activity." Mitchell, 759 F.2d at 86. The Fifth and Seventh

Circuits have held that withholding benefits to which an

employee is otherwise entitled amounts to just the sort of

adverse personnel action that can support a retaliation claim.

See EEOC v. Cosmair, Inc, L'Oreal Hair Care Div., 821 F.2d

1085, 1089 (5th Cir. 1987) ("Clearly if [the employer] stopped

providing [the employee] benefits to which he was otherwise

entitled simply because he filed a charge, the company would

be guilty of retaliation."), followed by EEOC v. Board of

Governors of State Colleges, 957 F.2d 424, 429 & n.8 (7th Cir.

1992).

Carney contends that the University withheld extra sever-

ance pay in retaliation for having signaled her intention to file

suit. In a settlement letter from the University's lawyer

dated December 12, 1994, responding to a letter from Car-

ney's attorney, the University acknowledged that under cer-

tain interpretations of its personnel manuals, Carney might

"arguably [be] entitl[ed] ... to an additional three months'

pay." O'Connell testified that he too thought that Carney

might be entitled to additional severance pay, but that when

he recommended it to Acting Provost Ferren, she refused to

consider it because the University had already received Car-

ney's letter expressing her intent to sue. According to the

University, the extra severance pay amounted to nothing

more than a settlement offer.

Granting summary judgment for the University, the dis-

trict court found that Carney failed to present evidence of

causation, reasoning that the University crafted her initial

severance package containing only seven months' severance

pay before it knew that Carney intended to sue. The court

also held that Rule 408 of the Federal Rules of Evidence

prohibited Carney from relying on settlement correspondence

to establish causation.

We disagree with the district court on two accounts. First,

apart from the settlement letters, O'Connell's testimony pro-

vides independent evidence from which a jury could conclude

that the University retaliated against Carney either by refus-

ing to give her any extra pay or refusing even to consider it.

A jury could also infer causation from the fact that about the

same time Carney expressed her intent to sue, another senior

administrator received additional severance pay. See Mitch-

ell, 759 F.2d at 86. Of course, if the University had a

legitimate, nonretaliatory reason for withholding Carney's

claimed extra pay, it could have done so. We need not decide

what would constitute such a reason since this record pres-

ents sufficient factual questions regarding the University's

good faith--including evidence of Ferren's refusal even to

consider Carney's claims to such pay--to preclude summary

judgment.

Second, although settlement letters are inadmissible to

prove liability or amount, they are admissible "when the

evidence is offered for another purpose." Fed. R. Evid. 408.

In particular, such correspondence can be used to establish

an independent violation (here, retaliation) unrelated to the

underlying claim which was the subject of the correspondence

(race discrimination). See Eisenberg v. University of N.M.,

936 F.2d 1131, 1134 (10th Cir. 1991) (affidavit obtained in

settlement negotiations admissible to impose Rule 11 liabili-

ty); Urico v. Parnell Oil Co., 708 F.2d 852, 854-55 (1st Cir.

1983) (evidence of settlement negotiations admissible to show

interference with efforts to mitigate damages); Resolution

Trust Corp. v. Blasdell, 154 F.R.D. 675, 681 (D.Ariz. 1993)

(finding admissible evidence of settlement negotiations used

to prove retaliatory motive); see also 23 Charles Alan

Wright & Kenneth W. Graham, Jr., Federal Practice and

Procedure s 5314, at 282 (1980) ("Rule 408 is [ ] inapplicable

when the claim is based upon some wrong that was commit-

ted in the course of settlement discussions; e.g., libel, assault,

breach of contract, unfair labor practice, and the like.").

Carney offered the settlement correspondence not to prove

that the University discriminated against her, but to show

that the University committed an entirely separate wrong by

conditioning her benefits on a waiver of her rights. The

letters were therefore admissible.

At the end of its brief, the University urges affirmance on

an alternate theory: that Carney's retaliation claims are

barred by applicable statutes of limitations. The University

maintains that a one-year rather than a three-year statute of

limitations governs section 1981 actions. Carney's state law

claims, the University argues, are barred by the DCHRA's

one-year statute of limitations. Although the University filed

no cross-appeal on this issue, we can affirm a district court

judgment on any basis supported by the record. See Crocker

v. Piedmont Aviation, Inc., 49 F.3d 735, 740-41 (D.C. Cir.

1995).

The "most appropriate or analogous" state law determines

the applicable statute of limitations for section 1981 claims.

Goodman v. Lukens Steel Co., 482 U.S. 656, 660 (1987). The

University argues that the District's one-year statute of

limitations for certain enumerated intentional torts, D.C.

Code Ann. s 12-301(4), not its three-year residual statute of

limitations for other personal injury claims, id. s 12-301(8),

represents the most "analogous" statute of limitations for

purposes of section 1981 actions. The district court rejected

this argument, as do we.

For statute of limitations purposes, the Supreme Court

treats section 1981 claims like claims under 42 U.S.C. s 1983.

See Goodman, 482 U.S. at 660-62 (applying the rule that

courts should look to state personal injury statutes to deter-

mine the appropriate statute of limitations for section 1983

claims, adopted in Wilson v. Garcia, 471 U.S. 261 (1985), to

section 1981 claims); see also Banks v. Chesapeake and

Potomac Tele. Co., 802 F.2d 1416, 1421-22 (D.C. Cir. 1986)

(same). The Supreme Court has held that in states with

multiple statutes of limitations, claims under section 1983 are

governed by the residual or general personal injury statute of

limitations (like section 12-301(8)), rather than the statute of

limitations for enumerated intentional torts (like section

12-301(4)). See Owens v. Okure, 488 U.S. 235, 243-50 (1989).

Accordingly, section 12-301(8)'s three-year statute of limita-

tions applies to all section 1981 claims. Because Carney filed

suit approximately one year after her discharge, her section

1981 retaliation claim is not barred. Exactly when her claim

accrued--and thus whether her DCHRA claim might be

barred by the DCHRA's one-year statute of limitations--

amounts to a disputed issue of material fact that the district

court should resolve at trial.

Although we affirm the district court's grant of summary

judgment for the University on Carney's discrimination

claims, we reverse with respect to her retaliation claims and

remand them for trial.

So ordered.