Carpenter, Joann v. Fed Natl Mtge Assn

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 23, 1999 Decided April 27, 1999

No. 98-7170

JoAnn Carpenter,

Appellant

v.

Federal National Mortgage Association,

Appellee

Appeal from the United States District Court

for the District of Columbia

(No. 98cv00563)

Nicholas H. Hantzes argued the cause for the appellant.

Kenneth M. Robinson was on brief for the appellant. Dennis

M. Hart entered an appearance.

Juanita A. Crowley argued the cause for the appellee.

John Payton was on brief for the appellee.

Before: Edwards, Chief Judge, Sentelle and Henderson,

Circuit Judges.

Opinion for the court filed by Circuit Judge Karen

LeCraft Henderson.

Karen LeCraft Henderson, Circuit Judge: JoAnn Carpen-

ter, employed at the Federal National Mortgage Association

(Fannie Mae), appeals the district court's grant of summary

judgment to Fannie Mae on her claim that her supervisors

retaliated against her in violation of the District of Columbia

Human Rights Act (DCHRA), D.C. Code ss 1-2501 et seq.

Carpenter specifically alleges that they retaliated by down-

grading her performance rating and by rejecting her for a

senior vice president position following her decision to appeal

the district court's dismissal of her original discrimination

claim against Fannie Mae. Carpenter now contends that she

presented sufficient evidence to allow a reasonable jury to

conclude that Fannie Mae's proffered reasons for her down-

grading and nonselection were pretextual. Alternatively,

Carpenter asserts that she should be allowed discovery. We

affirm for the reasons set forth below.

I.

Since 1987, Carpenter has been a Vice President and

Deputy General Counsel at Fannie Mae. In the summer of

1996, Fannie Mae decided to promote a different vice presi-

dent into a new supervisory position. Carpenter claimed that

she was not considered for the position despite her seniority.

On learning of the promotion, Carpenter met in September

1996 with her supervisors, Anastasia Kelly and Anthony

Marra, and complained of gender discrimination. According

to Carpenter, Marra told her to "drop" her claim and Kelly

warned her to "not cut off [her] nose to spite [her] face."

Carpenter v. Federal Nat'l Mortgage Ass'n, No. 1:98CV00563,

at 9 (D.D.C. Apr. 20, 1998) (Aff. of Pl. JoAnn Carpenter and

Rule 56(f) Aff.) [hereinafter 56(f) Aff.], Joint Appendix (JA)

74.

On October 17, 1996 Carpenter filed an employment dis-

crimination lawsuit, alleging gender discrimination under

DCHRA due to Fannie Mae's refusal to promote her and for

certain retaliatory acts that occurred after she gave notice of

her claim. Following contentious discovery that included

allegations of untruthful statements by Kelly and Marra, the

district court granted summary judgment to Fannie Mae, see

Carpenter v. Federal Nat'l Mortgage Ass'n, No. 96-2399 at 28

(D.D.C. Oct. 28, 1997) (Carpenter I), and we affirmed, see

Carpenter v. Federal Nat'l Mortgage Ass'n, 165 F.3d 69 (D.C.

Cir. 1999). Within two weeks after filing her appeal, Carpen-

ter learned that she had been given a performance rating of

4+, a slight downgrade from the ratings of 5 and 5- that she

received for the previous seven years. Soon after, Kelly

rejected Carpenter for a senior vice president position that

had opened up in the General Counsel's office.

On March 5, 1998 Carpenter filed a second lawsuit under

DCHRA, D.C. Code s 1-2525(a),1 against Fannie Mae alleg-

ing that it had retaliated against her for pursuing Carpenter I

by downgrading her performance rating and denying her a

promotion to senior vice president. See Carpenter v. Federal

Nat'l Mortgage Ass'n, No. 98-563 (D.D.C. Aug. 3, 1998)

(Carpenter II), JA 8-19. In response, Fannie Mae moved for

summary judgment, contending that: (1) it gave Carpenter a

lower rating because her performance was compared against

a larger pool of vice presidents than in the past and because

Julie St. John and Michael Williams, two senior vice presi-

dents in client departments, had criticized her work2 and (2) it

rejected Carpenter for the senior vice president position

__________

1 In relevant part, section 1-2525(a) states, "It shall be an

unlawful discriminatory practice to ... retaliate against ... any

person in the exercise ... of ... any right granted or protected

under this chapter." See also Blackman v. Visiting Nurses Ass'n,

694 A.2d 865, 868 (D.C. 1997) (looking to federal law to interpret

DCHRA).

2 St. John, Senior Vice President for Guaranty and Franchise

Technology, and Williams, Senior Vice President for Customer

Technology Services, were internal clients of Carpenter's legal

services at Fannie Mae. See Carpenter v. Federal Nat'l Mortgage

Ass'n, No. 1:98CV00563, at 4 pp 12-14 (D.D.C. Mar. 31, 1998) (Decl.

of Anthony F. Marra), JA 55. St. John criticized Carpenter's work

on a Y2K project as "weak" in that she "was not proactive in

because it desired an attorney with litigation experience

(which she admittedly did not have). Carpenter countered

that Fannie Mae's motion was premature given the lack of

discovery. As to her rating, Carpenter argued that her past

evaluations and comments of other "clients" directly contra-

dicted the criticisms against her and therefore raised an issue

as to whether Kelly and Marra actually relied on the criti-

cisms in downgrading her. As to the promotion, Carpenter

argued that "litigation experience" had never been a prereq-

uisite for senior vice president and questioned whether Fan-

nie Mae had in fact relied on the criteria. Finally, Carpenter

argued that the September 1996 admonitions of Kelly and

Marra to give up her discrimination claims constituted direct

evidence of their intent to retaliate after her 1997 appeal and

therefore strengthened the inference that her downgrade and

nonselection were linked to her pursuit of Carpenter I.

On August 3, 1998 the district court granted Fannie Mae's

motion for summary judgment without discovery and found

that: (1) the September 1996 Kelly/Marra admonitions relat-

ed solely to Carpenter I; (2) Fannie Mae's explanation of the

downgrade (i.e., a larger pool of vice presidents against whom

Carpenter was evaluated and the criticisms of two clients)

demonstrated a legitimate, non-discriminatory rationale and,

absent evidence that the criticisms were fabricated, her claim

failed; and (3) Fannie Mae's explanation of her nonselection

as senior vice president (i.e., the requirement of litigation

experience) was also non-discriminatory. The district court

further found Carpenter's contention that discovery might

prove otherwise speculative. See JA 10-19. Carpenter time-

ly appealed.

II.

Carpenter urges that the district court erred in granting

summary judgment because Fannie Mae allegedly retaliated

__________

seeking to identify and solve potential legal issues." Id. Williams

stated that Carpenter needed to "become more proactive and to

assume greater responsibility as an advisor to the business." Id.

against her in violation of DCHRA when it gave her a 4+

rating rather than the 5- she had received in the previous

rating period.3 Fannie Mae responds that the number of vice

presidents against whom Carpenter was rated increased from

eight to thirteen in 1997 as a result of reorganization, making

__________

3 A DCHRA plaintiff must first make a prima facie showing of

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

Cir. 1984); see also McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973); O'Donnell v. Associated Gen. Contractors of Am., Inc.,

645 A.2d 1084, 1086 (D.C. 1994) (burden of proof for claim of

disparate treatment based on federal law applicable to DCHRA).

To do so, he must establish that he was engaged in a protected

activity, that his employer took adverse personnel action against

him and that the two events were causally connected. See Arthur

Young & Co. v. Sutherland, 631 A.2d 354, 368 (D.C. 1993). After

the plaintiff makes a prima facie showing, a presumption of retalia-

tion arises that shifts the burden of production to the employer to

rebut the prima facie case by producing "clear and reasonably

specific" evidence that its actions were taken for legitimate, non-

retaliatory reasons. Texas Dep't of Community Affairs v. Burdine,

450 U.S. 248, 258 (1981). If an employer meets its burden of

articulating a non-retaliatory reason, the burden of production

shifts back to the plaintiff, who "must have the opportunity to

demonstrate that the proffered reason was not ... true." Id. at

256. The plaintiff's burden of production "merges with the ultimate

burden of persuading the court that she has been the victim of

intentional discrimination." Id. The plaintiff can meet the burden

"either directly by persuading the court that a discriminatory

reason more likely motivated the employer or indirectly by showing

that the employer's proffered explanation is unworthy of credence."

Id. (citing McDonnell Douglas Corp., 411 U.S. at 804-05). If he

successfully shows that a retaliatory motive played a motivating

part in an adverse employment decision, the employer can never-

theless avoid liability by demonstrating by a preponderance of the

evidence that it would still have taken the same action absent

retaliatory motive. See Price Waterhouse v. Hopkins, 490 U.S. 228,

252-53 (1989); Berger v. Iron Workers Reinforced Rodmen, Local

201, No. 97-7019, 1999 WL 169431, at *12 (D.C. Cir. Mar. 30, 1999).

We review de novo the grant of summary judgment, applying the

same standard utilized by the lower court. See Transactive Corp.

v. United States, 91 F.3d 232, 236 (D.C. Cir. 1996).

the rating pool more competitive. Fannie Mae also cites

negative evaluations from Williams and St. Johns that con-

trast with the uniformly positive comments received by her

higher rated peers. These explanations provide legitimate,

nonretaliatory reasons for Carpenter's downgrade. See Bur-

dine, 450 U.S. at 257-58.

Moreover, Carpenter has failed to show that Fannie Mae's

explanation was pretextual. We first reject her underlying

contention that because she previously received a 5- and her

performance has not changed, she had to have earned a 5- for

1997. See Fishbach v. District of Columbia Dep't of Correc-

tions, 86 F.3d 1180, 1183 (D.C. Cir. 1996) (absent "error too

obvious to be unintentional," court respects employer's "un-

fettered discretion" to evaluate employees) (citation omitted);

Billet v. CIGNA Corp., 940 F.2d 812, 826 (3d Cir. 1991)

(rejecting argument based on past evaluations as theory "that

things never change, a proposition clearly without basis in

reality"), overruled in part on other grounds by St. Mary's

Honor Center v. Hicks, 509 U.S. 502 (1993). Pre-1995 rat-

ings were done by other supervisors and, of the vice presi-

dents who received higher ratings than Carpenter in 1997,

only one had been compared to Carpenter previously, receiv-

ing higher ratings than she in two previous years. We also

find Carpenter's claim that St. John's and Williams's criti-

cisms were the product of collusion and fabrication without

record support. See Randall v. Howard Univ., 941 F. Supp.

206, 213 (D.D.C. 1996) (granting summary judgment where

plaintiff offered no evidence to support theory that employees

conspired against her), aff'd, 132 F.3d 1482 (D.C. Cir. 1997).

Rather, Carpenter's admission that she had "little contact"

with Williams may explain his view that she needed to assume

greater responsibility and her failure to work directly with St.

John on the Y2K project may similarly have led St. John to

believe that she needed to be more "proactive." 56(f) Aff. at

4, 5 pp 13, 17, JA 69, 70; see Valentino v. United States

Postal Serv., 674 F.2d 56, 66 (D.C. Cir. 1982) (management

judgments regarding professionals often depend on subjective

criteria). Although Carpenter infers retaliatory intent from

her supervisors' September 1996 comments, they also do not

constitute evidence sufficient to allow a reasonable jury to

infer that Fannie Mae's reasons for her November 1997

rating were false. Carpenter herself cites a narrative evalua-

tion of her 1996 performance, which Marra wrote in March

1997 after his September 1996 comments and after she filed

Carpenter I in October 1996, as an accurate portrayal of her

performance and evidence that the November 1997 rating

must be the product of retaliation. See Uhl v. Zalk Josephs

Fabricators, Inc., 121 F.3d 1133, 1136 (7th Cir. 1997) (inter-

vening satisfactory rating defeats causal link).

Because Fannie Mae offered a legitimate nondiscriminatory

reason for not selecting Carpenter for the senior vice presi-

dent position--i.e., that Carpenter admittedly lacked the nec-

essary litigation experience--Carpenter was required to show

pretext by "demonstrat[ing] that the proffered reason was

not the true reason for the employment decision." Burdine,

450 U.S. at 256. Aside from Kelly's and Marra's September

1996 comments, the contentious nature of Carpenter I and the

cold shoulder treatment which purportedly followed, Carpen-

ter merely theorized that litigation experience was a "false

qualification" intended solely to explain away her nonselec-

tion. Although Carpenter contends that the Position De-

scription form left the criteria for senior vice president an

open issue, it clearly required that a "successful candidate"

have "substantial litigation or litigation management experi-

ence." Position Description, JA 59. Moreover, Fannie Mae

in fact based its hiring decision, at least in part, on the

applicants' litigation experience, giving final consideration

only to those candidates with significant litigation experience.

See SJA at 1-11.4 Because Carpenter failed to rebut Fannie

Mae's legitimate business reasons for the two challenged

__________

4 Carpenter argues for the first time on appeal that evidence of

the candidates' credentials included in their resumes was inadmissi-

ble hearsay and that statements in Kelly's declaration relating to

those credentials did not conform with Fed. R. Civ. P. 56(e)

(requiring affidavits based on "personal knowledge"). Carpenter

waived these arguments by not raising them below and therefore

we need not consider them. See District of Columbia v. Air

Florida, Inc., 750 F.2d 1077, 1084-85 (D.C. Cir. 1984).

actions, the district court properly granted summary judg-

ment to Fannie Mae. See Fishbach, 86 F.3d at 1183 (absent

pretext, "court must respect the employer's unfettered discre-

tion to choose among qualified candidates").

Carpenter alternatively sought remand for discovery under

Fed. R. Civ. P. 56(f) (allowing pre-summary judgment discov-

ery if "it appear[s] from the affidavits of a party opposing the

motion that the party cannot for the reasons stated present

by affidavit facts essential to justify the party's opposition").

Carpenter, however, had to indicate what facts she intended

to discover that would create a triable issue and why she

could not produce them in opposition to the motion. See

Strang v. United States Arms Control & Disarmament Agen-

cy, 864 F.2d 859, 861 (D.C. Cir. 1989). "It is well settled that

[c]onclusory allegations unsupported by factual data will not

create a triable issue of fact." Exxon Corp. v. FTC, 663 F.2d

120, 126-27 (D.C. Cir. 1980) (quotation omitted, alteration

original).

Carpenter sought discovery relating to her performance

downgrade by merely pointing to the disparity between

Williams's and St. John's criticisms and the compliments of

other coworkers and arguing that "this contrast raises an

inference that the criticisms were fabricated or, at a mini-

mum, immaterial," Appellant's Br. at 32, a plainly conclusion-

ary assertion without supporting facts. Carpenter also al-

leged that other vice presidents performed worse or no better

than she did but offered no reasonable basis to suggest that

discovery would show either that Fannie Mae made an error

too obvious to be unintentional or actually believed that she

performed better than her peers. See Fishbach, 86 F.3d at

1182 (to show pretext, issue is not correctness of employer's

reasons but whether it honestly believes them). In fact, to

the contrary, Marra averred in his affidavit that "[b]ased on

my own experience and comments from Senior Vice Presi-

dents who are clients of the Vice Presidents, the four Vice

Presidents who received ratings of 5 or 5- exemplified [the

high standards of the Legal Department], and their contribu-

tions clearly exceeded that of their peers." JA 55. Carpen-

ter further suggested that litigation experience is a false

credential for senior vice president but failed to describe what

new facts she believed could be obtained by discovery to

support her theory. See Strang, 864 F.2d at 861 (desire to

"test" affiants' testimony does not justify Rule 56(f) discov-

ery). Instead, Carpenter supported her request for discovery

with undisputed facts--that senior vice presidents in the past

lacked litigation expertise and that the Legal Department

does not engage directly in litigation--which in themselves do

not create an inference of pretext. Accordingly, the district

court did not abuse its discretion in denying Carpenter's

discovery request. See Exxon Corp., 663 F.2d at 126 (Rule

56(f) ruling reviewed for abuse of discretion).

For the foregoing reasons, the district court's grant of

summary judgment to the Federal National Mortgage Associ-

ation is

Affirmed.