Carpenter, Joann v. Fed Natl Mtge Assn

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 19, 1998 Decided January 22, 1999

No. 97-7201

JoAnn Carpenter,

Appellant

v.

Federal National Mortgage Association,

Appellee

Appeal from the United States District Court

for the District of Columbia

(No. 96cv02399)

Nicholas H. Hantzes argued the cause for appellant. With

him on the briefs were Kenneth M. Robinson and Dennis M.

Hart.

Juanita A. Crowley argued the cause for appellee. With

her on the brief was John Payton.

Before: Williams, Ginsburg and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Williams.

Williams, Circuit Judge: JoAnn Carpenter alleges that her

employer, Federal National Mortgage Association ("Fannie

Mae") discriminated against her on account of her sex in

promoting a male colleague rather than herself, and thus

violated the District of Columbia Human Rights Act, D.C.

Code ss 1-2512 et seq. The District Court granted summary

judgment in favor of Fannie Mae, and Carpenter appeals.

Although much of the evidence in the record on summary

judgment is documentary, the parties draw from it radically

different lessons. As Fannie Mae sees the case, the pro-

motion decision was simply one of merit. As Carpenter sees

it, the evidence of meritocracy is no more than a facade,

erected to cover up high-level male management's true pur-

pose--to respond to her efforts in favor of a company policy

restricting fraternization and thus more effectively preventing

sex discrimination in the form of sexual harassment. The

district court found that Fannie Mae had presented evidence

of a legitimate non-discriminatory reason for its decision, and

that a reasonable jury could not draw from plaintiff's evidence

the inference that Fannie Mae's reasons were in fact pretex-

tual. Thus it granted summary judgment. On the view we

take of the case, this assessment is unnecessary. Because

the evidence on which Carpenter relies makes out a case of

ideological rather than sex discrimination (if anything), a jury

could not properly hold Fannie Mae liable.

I.

JoAnn Carpenter has served as a vice president and deputy

general counsel in Fannie Mae's legal department since 1987.

In July 1996, as part of a reorganization of its legal depart-

ment, Fannie Mae decided to promote one of its vice presi-

dents to a new supervisory and management role. Senior

Vice President Anastasia Kelly, who had joined Fannie Mae

in 1995, was to delegate some of her existing management

duties to this new "super vice president." Fannie Mae

selected Joseph Biegel instead of Carpenter for this role.

According to Fannie Mae, Kelly chose Biegel after she

considered all of the other vice presidents in the Office of

General Counsel. Instead of using past evaluations, she

relied on her own experience with the vice presidents over

her year-long tenure at Fannie Mae. She says in her deposi-

tion that she looked at everyone who worked for her and

chose a lawyer who had strong interpersonal and communica-

tion skills. After she had selected Biegel, she consulted the

other Senior Vice President, Anthony Marra, who agreed

with her decision. Together they proposed the appointment

in memoranda to Executive Vice President and General

Counsel Robert Zoellick, President and Chief Operating Offi-

cer Larry Small, and Chairman and Chief Executive Officer

James Johnson.

Carpenter does not seriously attack the proposition that

Fannie Mae put on a case of a legitimate, non-discriminatory

reason for its decision. Her argument is that a jury might

conclude that it was invented simply to conceal the real story.

That story has three essential elements. First, she says she

actively favored an anti-fraternization policy that was anathe-

ma to high-level male management. Second, because of her

anti-fraternization views male management as early as 1994

preselected Biegel and eliminated her as a candidate. Third,

they concocted all the criticisms of her in her evaluations to

cover up their discriminatory motives, and made their deci-

sion appear to be that of Kelly, who was in fact only a "pawn

of the male upper management."1

__________

1 These past evaluations, which Kelly says she did not consult,

seem to support the conclusion that as an employee Biegel was

clearly as qualified as, if not superior to, Carpenter. Both Biegel

and Carpenter received similar numerical grades over the past five

years, and in the year before the reorganization Biegel received a

higher score. Also in evidence were extensive sets of notes made in

1994 and 1995 either in preparation for meetings of Carpenter's and

Biegel's bosses relating to personnel matters or as memorials of

statements made at such meetings. Although the notes reflect

statements (made or intended to be made) characterizing Carpenter

fairly favorably, the statements about Biegel are more favorable,

e.g., "broader" (in explicit contrast with Carpenter, who is twice

Carpenter claims that in the latter part of 1993 she heard

that a male supervisor, known for these purposes as Mr. Doe,

was having an affair with an employee he supervised. She

believed that any sexual relationship between a male officer

and a female subordinate (or vice versa) should be investigat-

ed because of the possibility of sexual harassment. In early

1994 she evidently suggested to Fannie Mae's Business Code

of Conduct Committee (of which she was a member) the

desirability of an anti-fraternization policy. To her recollec-

tion, there was no opposition to her proposal and it was later

adopted.

Carpenter's contention that this proposal and her anti-

fraternization views generally were anathema to high-level

male management rests on an exchange with Marra in 1996

after Biegel's promotion. At the close of a discussion about

Fannie Mae's reorganization, Carpenter said in a deposition,

Marra asked "how are things going with [Mr. Doe]?" Car-

penter contends that this reference to the Doe matter in a

discussion about the reorganization of Fannie Mae suggests

that the decision not to promote her was linked to her anti-

fraternization views. From the inference of opposition to her

views she draws the further inference that Biegel was pre-

selected and that the formal numerical evaluation and the

informal notes were pure camouflage.

And to show that Kelly was only a "pawn" of the males she

points to an e-mail message from Biegel to Small in which

Biegel thanked Small for his selection, and to admissions

allegedly made by Kelly to Carpenter. These "admissions,"

said by Carpenter to support all elements of her theory,

occurred in a meeting between Carpenter and Kelly on

September 6, 1996, after Carpenter complained to both Kelly

__________

dubbed "narrow" and said to "need rounding"), "good presence," "a

star," with feedback from the General Counsel's "clients" within

Fannie Mae expressing special enthusiasm (one of them, a woman,

would "take [him] on in a second"). The overall gist of these was

evidently communicated to Kelly, who met with Zoellick soon after

joining Fannie Mae in 1995 to discuss the vice presidents in the

legal department.

and Marra that Biegel's promotion manifested sex discrimina-

tion. Carpenter recounted in a deposition that when she told

Kelly about her grievances, Kelly "responded, ... saying, I

wish I could tell you you're crazy, but you're not. And then

she added, Other people are." "She mentioned that if she

were in my position, she would feel the same way, and she

prefaced that with, Between us girls." Carpenter said Kelly

asked her "if there was anything Fannie Mae could do to

mitigate the damage," and specifically offered her stock op-

tions.

II.

Once the defendant offered credible evidence of a reason

for the promotion decision that was free of sex discrimination,

Carpenter could defeat the defense motion for summary

judgment only by offering direct or indirect evidence of

discrimination. See McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973); St. Mary's Honor Center v. Hicks, 509 U.S.

502 (1993). In interpreting its Human Rights Act the District

of Columbia also follows this formula, Arthur Young & Co. v.

Sutherland, 631 A.2d 354, 361 (D.C. 1993), and generally

seems ready to accept the federal constructions of Title VII,

given the substantial similarity between it and the D.C.

Human Rights Act. Id. at 361 n.17. Indirect proof can take

the form of evidence from which a jury could find that Fannie

Mae's stated reasons for selecting Biegel were pretextual.

Hicks, 509 U.S at 511. Usually such undermining evidence

will be enough to get a plaintiff's claim to a jury. Aka v.

Washington Hospital Ctr., 156 F.3d 1284 (D.C. Cir. 1998) (en

banc). This is not always the case, however. "[I]n some

instances, ... the fact that there are material questions as to

whether the employer has given the real explanation will not

suffice to support an inference of discrimination." Id. at

1291.

This is one such instance. Sometimes an employer may

offer a meritocratic or otherwise high-sounding explanation

for a decision intending to cover up an unsavory reason--but

one that is not illegal under the antidiscrimination laws. If

the plaintiff explodes the phony reason with evidence that

simply supports an unsavory but lawful alternative reason (or,

more technically, offers evidence from which a jury might find

such to be the true reason), the plaintiff cannot get to the

jury. "If a plaintiff shoots himself in the foot, surely there is

no point in sending the case to the jury." Aka, 156 F.3d at

1291. Thus in Rothmeier v. Investment Advisers, Inc., 85

F.3d 1328, 1338 (8th Cir. 1996), which we cited approvingly in

Aka, the plaintiff "acknowledged" that he was fired because

the employer wanted, against plaintiff's will, to cover up its

collection of millions of dollars in violation of SEC regula-

tions. "This acknowledgment standing alone would complete-

ly refute [the plaintiff's] claim of age discrimination." Id. at

1337. And in Visser v. Packer Engineering Assoc., Inc., 924

F.2d 655, 657 (7th Cir. 1991) (en banc), also cited approvingly

in Aka, the plaintiff asserted age discrimination but offered

evidence that the real reason was disloyalty to the firm's chief

executive officer. "It does not show or even tend to show

that [the plaintiff] was fired because of his age. It tends if

anything to show the opposite." Id.

Assuming in Carpenter's favor that the evidence is such

that a reasonable jury could reject Fannie Mae's proffered

reasons for selecting Biegel, her entire theory nonetheless

rests on the premise that Fannie Mae's male upper manage-

ment concocted a scheme to defeat her as a candidate for

promotion because of her outspoken advocacy of eliminating

fraternization in the workplace. Carpenter's stance that she

was not promoted because of her views is unequivocal. Sum-

ming up the evidence and her take on it she says, "According-

ly, there is no explanation for eliminating Carpenter as a

candidate for promotion except the discriminatory bias creat-

ed by her active participation in seeking to protect the rights

of women employees." App. Br. at 33 (emphasis in original).

But the espousal of views for or against fraternization in

the workplace is not a surrogate for being male or female. In

Rothmeier, plaintiff attempted a parallel theory, claiming that

high ethical standards were so closely associated with age

that to penalize an employee for his whistleblowing was the

equivalent of penalizing him for age. 85 F.3d at 1337-38.

The court rejected the idea as "premised on a highly dubious

correlation," id., and we find Carpenter's implicit claim of

correlation equally dubious.2

Everyday life refutes the notion that skepticism of or even

opposition to an anti-fraternization policy proposal constitutes

discrimination against women. Persons who devote their

careers largely to seeking effective legal restriction of sexual

harassment commonly insist on a sharp distinction between

workplace relationships that are welcome on both sides (even

with Olympian status differentials between the participants),

and unwelcome attentions. See, Kathy Rodgers, Commen-

tary, "What Is and Isn't Sexual Harassment," Chicago Trib-

une, Feb. 6, 1998, at 31 (author, executive director of NOW

Legal Defense and Education Fund, insists staunchly on need

that sexual attentions be unwelcome for them to be sexual

harassment, and rejects notion that status differential of any

sort could substitute for unwelcomeness); Gloria Steinem,

Editorial, "Women and the White House, 'No' means 'No,'

and 'Yes' means 'Yes,' " Fort Worth Star-Telegram, March

29, 1998, at 3 ("The power imbalance between [parties] in-

crease[s] the index of suspicion, but ... [w]elcome sexual

behavior is about as relevant to sexual harassment as borrow-

ing a car is to stealing one"). The position of Fannie Mae's

management on either side of this issue is in no way a proxy

for gender bias.

In her reply brief Carpenter offers a convoluted argument

trying to forge such a link. Citing Oncale v. Sundowner

Offshore Services, Inc., 118 S. Ct. 998, 1002 (1998), and

Meritor Savings Bank v. Vinson, 477 U.S. 57, 68 (1986), she

__________

2 Of course civil rights statutes may make retaliation a claim in

some circumstances, such as Title VII's rule against an employer's

discriminating "against any of his employees ... because [the

employee] has opposed any practice made an unlawful employment

practice by this subchapter, or because he has made a charge,

testified, assisted, or participated in any manner in an investigation,

proceeding, or hearing under this subchapter." 42 U.S.C. s 2000e-

3(a)(1994). But Carpenter has framed her suit as one of sex

discrimination, not retaliation, and in any event makes no claim that

fraternization is an employment practice made unlawful by the anti-

discrimination laws.

argues that the voluntariness of workplace sexual relations

does not end the inquiry regarding sexual harassment and

that the inference of sex discrimination is easy to draw in

most instances of sexual harassment. Therefore, she con-

cludes, the anti-fraternization policy "is directly related to

sexual harassment, because without such a prohibition, an

employer would need to investigate every case of fraterniza-

tion to determine whether sexual advances are unwelcome."

But, even accepting Carpenter's Orwellian assumption that

every instance of fraternization must be investigated lest it

actually be sexual harassment, the argument assumes rather

than establishes its equation of gender with anti-

fraternization advocacy.

Similarly, Carpenter cites Broderick v. Ruder, 685 F. Supp.

1269, 177-78 (D.D.C. 1988), for the proposition that she can

raise the sexual discrimination claim even though she was not

the victim of sexual harassment. But that case held only a

plaintiff could make out a hostile work environment claim on

the basis of a pervasive atmosphere of sexual harassment of

others, including a general practice of trading advancement

for sexual accommodation. Id. at 1277-78. Carpenter, of

course, claims neither hostile work environment nor the exis-

tence of any such practice at Fannie Mae.

Finally, in her reply brief Carpenter hints at another

alternative--that her "zeal [in pursuing anti-fraternization

policies] did not fit male management's stereotype of a wom-

an's role in Fannie Mae's environment of insensitivity to the

sexual harassment of women." If Fannie Mae treated zeal in

women differently from zeal in men, of course Carpenter

would have a case. But she has neither offered evidence nor

(until the Reply) even contended that this was such a case.

Accordingly, we can only read this passage as essentially a

restatement of her basic claim that Fannie Mae should be

held liable because it denied her promotion because of its

resistance to her fraternization policy proposals. But, as we

have said, that does not make out a case of gender discrimina-

tion.

The judgment of the district court is affirmed.

So ordered.