The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 22, 1999 Decided January 11, 2000
No. 99-7041
Amy Gleklen,
Appellant
v.
Democratic Congressional Campaign Committee, Inc., et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(98cv00072)
Roy W. Krieger argued the cause and filed the briefs for
appellant.
Barry J. Reingold argued the cause for appellees. With
him on the brief was Kara M. Sacilotto.
Before: Williams, Sentelle, and Randolph, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: This is an appeal from an order
of the district court, Robertson, J., granting summary judg-
ment for the Democratic Congressional Campaign Committee
on three counts of unlawful discrimination alleged by Amy
Gleklen, a former employee. We affirm because Gleklen did
not rebut the Committee's reasonable, nondiscriminatory ex-
planation for its employment decision.
I
Gleklen worked as the Deputy Director of the Harriman
Communications Center, an arm of the Democratic Congres-
sional Campaign Committee, shifting between full-time and
part-time status as the needs of the Democratic Committee
changed between campaign seasons. In February 1997,
shortly after Gleklen informed the Committee that she was
pregnant with her third child, the Committee decided to
embark on a more vigorous off-cycle member services pro-
gram which required it to hire additional staff and increase
the work hours of the existing staff. In early March 1997,
the Democratic Committee requested Gleklen to resume full-
time employment in April. Gleklen refused. She preferred
to continue working three days a week and wanted the
Committee to reinstitute the job-sharing arrangement it had
allowed the previous year in the event that more work was
needed. When Gleklen failed to report for work on April 1,
she was fired and immediately replaced by a woman who was
not pregnant. In June 1997, Gleklen timely filed a complaint
with the EEOC alleging that the Committee had violated the
Pregnancy Discrimination Act, the D.C. Human Rights Act,
and the Family and Medical Leave Act. The EEOC respond-
ed with a "no reason to believe" letter on October 14, 1997,
and Gleklen brought suit in federal district court.
Applying the burden-shifting analysis for discrimination
claims set forth in Aka v. Washington Hospital Center, 156
F.3d 1284 (D.C. Cir. 1998) (en banc), the district court
granted the Democratic Committee's motion for summary
judgment because there was "no evidence from which a jury
could reasonably find a causal link between defendants' April
1997 request that plaintiff resume a full-time schedule and
the impending birth of her child in August 1997." Gleklen v.
Democratic Congressional Campaign Comm., 38 F. Supp. 2d
18, 21 (D.D.C. 1999).
II
Title VII makes it "an unlawful employment practice for an
employer to fail or refuse to hire or to discharge any individu-
al, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges
of employment, because of such individual's sex...." 42
U.S.C. s 2000e-2(a). Congress passed the Pregnancy Dis-
crimination Act as an amendment to Title VII: "[W]omen
affected by pregnancy, childbirth or related medical condi-
tions shall be treated the same for all employment-related
purposes ... as other persons not so affected but similar in
their ability or inability to work...." 42 U.S.C. s 2000e(k).
The D.C. Human Rights Act uses the same language. See
D.C. Code Ann. s 1-2505(b) (1981). The Family and Medical
Leave Act grants eligible employees twelve weeks of leave
during any twelve-month period following the birth of a child,
and further provides: "It shall be unlawful for any employer
to interfere with, restrain, or deny the exercise of or the
attempt to exercise, any right provided under this subchap-
ter." 29 U.S.C. s 2615(a)(1). Gleklen claims that the Demo-
cratic Committee violated each of these provisions.
The burden-shifting analysis of McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), is applicable to D.C. Human
Rights Act claims. See, e.g., Carpenter v. Federal Nat'l
Mortgage Ass'n, 165 F.3d 69, 72 (D.C. Cir. 1999). Although
we have not considered the applicability of McDonnell Doug-
las to claims like Gleklen's under the Pregnancy Discrimina-
tion Act and the Leave Act, other circuits have concluded that
McDonnell Douglas provides the proper framework for anal-
ysis of such claims. See, e.g., Graham v. State Farm Mutual
Ins. Co., 193 F.3d 1274, 1283 (11th Cir. 1999) (Leave Act);
Chaffin v. John H. Carter Co., 179 F.3d 316, 319 & n.10 (5th
Cir. 1999) (Leave Act); Maldonado v. U.S. Bank, 186 F.3d
759, 763 (7th Cir. 1999) (Pregnancy Discrimination Act);
Kerzer v. Kingly Mfg., 156 F.3d 396, 400-01 (2d Cir. 1998)
(Pregnancy Discrimination Act). Given that the Pregnancy
Discrimination Act and D.C. Human Rights Act provisions in
question are identical, and in view of the general similarity of
the Leave Act, the McDonnell Douglas approach offers a
coherent method of evaluating the evidence for all three
alleged violations. For the most part, then, Gleklen's claims
may be analyzed simultaneously.
Under McDonnell Douglas, Gleklen had to establish a
prima facie case of discrimination, at which point the Demo-
cratic Committee had to produce evidence articulating a
legitimate, nondiscriminatory reason for its actions, after
which Gleklen had to "produce substantial probative evidence
that the proffered reason was not the true reason for the
employment decision and that the real reason was [discrimi-
natory animus]." Chaffin, 179 F.3d at 320; see also Abra-
ham v. Graphic Arts Int'l Union, 660 F.2d 811, 815 (D.C. Cir.
1981).
A
On her Pregnancy Discrimination Act and D.C. Human
Rights Act claims, Gleklen made out the requisite prima facie
case: she was pregnant, she was qualified, she was fired, she
was replaced by a woman who was not pregnant, and her
replacement performed Gleklen's former job while devoting
at least some of her time to other responsibilities.1 See
Pendarvis v. Xerox Corp., 3 F. Supp. 2d 53, 57 (D.D.C. 1998).2
__________
1 Gleklen set forth additional allegations, unnecessary to mention.
2 The Democratic Committee also argued that the Pregnancy
Discrimination Act does not require employers to grant maternity
leave; that maternity leave must be given only if the employer
overlooks comparable absences of non-pregnant employees; that
the Committee did not offer eight weeks of leave on either a paid or
unpaid basis to employees who were not pregnant; and that Gleklen
therefore would not have a claim under the Act even if the
Committee terminated her precisely to avoid providing her materni-
ty leave. See Brief for Appellees at 26-30 (citing 29 C.F.R.
s 1604.10(b); Marshall v. American Hosp. Ass'n, 157 F.3d 520, 527
On her claim under the Leave Act, Gleklen had to show
that she engaged in a protected activity under this statute;
that she was adversely affected by an employment decision;
and that the protected activity and the adverse employment
action were causally connected. See Chaffin, 179 F.3d at 319.
As she describes her claim, it is essentially one of retaliation.3
Temporal proximity is often found sufficient to establish the
requisite causal connection for such claims. See, e.g., King v.
Preferred Technical Group, 166 F.3d 887, 893 (7th Cir. 1999).
In this case, Gleklen's supervisor requested that she return to
work full time only a few weeks after she disclosed her
pregnancy. These two events were sufficiently close in time
to infer a causal nexus on the facts of this case. Compare
Kachmar v. Sungard Data Sys., Inc., 109 F.3d 173, 177-78
(3d Cir. 1997); Shirley v. Chrysler First, Inc., 970 F.2d 39,
42-43 (5th Cir. 1992). Accordingly, Gleklen appears to have
met her burden of alleging facts from which a reasonable jury
might infer a causal connection.
B
Although Gleklen made out a prima facie case on each of
her claims, she cannot prevail on any of them. The Demo-
cratic Committee put forward reasonable and non-
discriminatory reasons for requiring Gleklen to work full time
if she wanted to keep her job: they were planning to launch a
__________
(7th Cir. 1998); Rhett v. Carnegie Ctr. Assocs., 129 F.3d 290, 296
(3d Cir. 1997); Troupe v. May Dep't Stores, 20 F.3d 734, 738 (7th
Cir. 1994); Pendarvis, 3 F. Supp. 2d at 57 n.3). The Committee
also argued that Abraham v. Graphic Arts Int'l Union, 660 F.2d at
817, cited by Gleklen, does not support her position that the
Pregnancy Discrimination Act gives her rights superior to those
enjoyed by non-pregnant employees because Abraham employed
"disparate impact" analysis, whereas Gleklen claims disparate treat-
ment. Given our disposition of the case, it is not necessary for us to
consider the questions these arguments pose.
3 "She planned to engage in statutorily protected activity (i.e.
maternity leave); her employer took adverse action (she was fired);
and there is evidence of a causal connection between these two
events." Brief for Plaintiff-Appellant at 24.
major new off-cycle initiative which required the full-time
efforts of existing employees as well as the hiring of new
ones. Gleklen believes this was an elaborate pretext de-
signed to force her resignation, but she fell far short of
rebutting the Committee's more plausible explanation for its
actions. See Aka, 156 F.3d at 1289. She relies on four items
of "evidence," all of which lack substance or otherwise fail to
establish a "genuine issue as to any material fact." Fed. R.
Civ. P. 56(c).
First, in her deposition, Gleklen testified that someone had
informed her of a conversation in which Congressman Frost
said to former Congresswoman Margolies-Mezvinsky that
Gleklen was terminated because Gleklen, before her last
pregnancy, had told the Democratic Committee that she was
not going to have any more children. Gleklen's deposition is
the only evidence of this conversation in the record, and it is
not enough.
The rather awkward language of Rule 56(e) of the Federal
Rules of Civil Procedure provides that "an adverse party may
not rest on mere allegations or denials of the adverse party's
pleading, but the adverse party's response, by affidavits or as
otherwise provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial." While a
nonmovant is not required to produce evidence in a form that
would be admissible at trial, the evidence still must be
capable of being converted into admissible evidence. The
opening lines of the rule suggest as much: "Supporting and
opposing affidavits shall be made on personal knowledge,
shall set forth such facts as would be admissible in evidence,
and shall show affirmatively that the affiant is competent to
testify to the matters stated therein." See also Celotex Corp.
v. Catrett, 477 U.S. 317, 324 (1986). Otherwise, the objective
of summary judgment--to prevent unnecessary trials--would
be undermined. See id. at 323-24 & n.5. Verdicts cannot
rest on inadmissible evidence. Gleklen's evidence about the
conversation is sheer hearsay; she would not be permitted to
testify about the conversation at trial. See Fed. R. Evid. 801-
807. It therefore counts for nothing. See 10A Charles Alan
Wright et al., Federal Practice and Procedure s 2722, at
371-72 & n.11 (1998) (citing cases).
Second, in her affidavit opposing summary judgment and in
her deposition, Gleklen recounted a conversation in which
Greg Speed--who was hired full time along with Todd Glass
in March 1997 to handle the increased workload of the
Democratic Committee's new initiative--said that he did not
expect a significant increase in the Harriman Communica-
tions Center's workload until August 1997. Even if true,
Gleklen never suggested that Speed was in any manner
involved in the decision to terminate her; nor did she offer
any evidence that Speed shared his views with the supervi-
sors who made that decision. Moreover, the record contains
several documents detailing the Democratic Committee's new
initiative. (The documents are under seal.) Even if use of
the Harriman Center's facilities did not rise appreciably
before August 1997, clearly the efforts to generate increased
work began well before Gleklen was terminated, directly
supporting the Democratic Committee's contention that it
anticipated an increased workload for the Harriman Center's
staff.
Third, Gleklen's affidavit purports to refute the Democratic
Committee's statistics demonstrating increased activity at the
Harriman Center between April and August 1997. Whether
the activity level actually increased is not the critical ques-
tion. Gleklen needed to--but did not--refute the Democratic
Committee's evidence showing that those in charge of the
Harriman Center reasonably believed that its activity would
increase when they asked Gleklen to resume a full-time
schedule and later terminated her for rejecting that request.
Fourth, Gleklen is mistaken in asserting that Susan Maiers,
the woman who replaced her, only worked part time to fill the
Deputy Director's duties. The evidence shows that Maiers
was working full time for the Democratic Committee Finance
Office one month before Gleklen's termination and that Mai-
ers was performing the duties of the Harriman Center's
business manager on a part-time basis until a replacement
could be found. When Gleklen was terminated, Maiers left the
Democratic Committee Finance Office and took over Glek-
len's post as Deputy Director full time, working nine-to-five,
five days a week. Maiers testified that she acted as the
Deputy Director on a full-time basis, and performed the
business manager functions part time--the opposite of Glek-
len's assertion. This testimony further supports the Demo-
cratic Committee's contention that the Deputy Director's
position required a full-time employee. In any event, Gleklen
did not rebut the Committee's evidence that it was making a
good faith attempt at filling the business manager position
while Maiers did double duty.
The district court's summary judgment in favor of the
Democratic Congressional Campaign Committee is therefore
affirmed.