Stella, Marie v. v. Mineta, Norman Y.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 5, 2002 Decided March 29, 2002

No. 00-5458

Marie V. Stella,

Appellant

v.

Norman Y. Mineta and

Jane F. Garvey, Administrator,

Federal Aviation Administration,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 97cv02550)

Gary T. Brown argued the cause for appellant. With him

on the briefs was Camilla C. McKinney.

Michael A. Humphreys, Assistant United States Attorney,

argued the cause for appellee. With him on the brief were

Roscoe C. Howard, Jr., United States Attorney, and R. Craig

Lawrence, Assistant United States Attorney.

Before: Ginsburg, Chief Judge, Edwards and Sentelle,

Circuit Judges.

Opinion for the Court filed by Circuit Judge Edwards.

Edwards, Circuit Judge: Appellant Marie V. Stella is an

employee of the Federal Aviation Administration ("FAA").

She brought claims under the Whistleblower Protection Act

of 1989, Pub. L. No. 101-12, 103 Stat. 16 (1989) (codified in

scattered sections of 5 U.S.C.) ("WPA"), alleging that the

FAA retaliated against her after she disclosed instances of

fraud, safety problems, waste, and abuse related to several

FAA programs. She also brought claims of sex discrimina-

tion under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

ss 2000e et seq. ("Title VII"). She claimed, inter alia, that

discrimination played a role in the FAA's failure to promote

her to the Senior Executive Service ("SES") program.

The District Court for the District of Columbia granted the

FAA's motion to dismiss appellant's WPA claims for lack of

jurisdiction. See Stella v. Slater, Civ. Action No. 97-2550,

Mem. Op. at 28 (D.D.C. Dec. 8, 2000) ("Mem. Op."). At the

time Ms. Stella initiated her action in the District Court, FAA

employees were barred from bringing whistleblower claims

through the Office of Special Counsel ("OSC") and the Merit

Systems Protection Board ("MSPB"), which are the channels

that most federal employees are required to follow. Con-

gress recently remedied this situation, however, by passing a

law granting jurisdiction for whistleblower claims by FAA

employees to the OSC and the MSPB. The new law applies

retroactively to Ms. Stella's case. Because she is required to

bring her claim to the OSC and MSPB, we affirm the District

Court's dismissal of her WPA claims.

The District Court also granted summary judgment for the

FAA on the Title VII claims on the ground that Ms. Stella

failed to make out a prima facie case of sex discrimination.

Mem. Op. at 28. Although appellant had credibly asserted

that the FAA failed to promote her to the SES positions for

which she had applied, the District Court found that she had

not suffered an adverse employment action because both

women and men had been promoted to the SES positions.

Id. at 17-18. In so ruling, the District Court applied an

incorrect legal standard. In making out a prima facie case of

discrimination, a plaintiff need only show that he/she is a

member of a protected class, that he/she applied for and was

denied an available position for which he/she is qualified, and

that, after the rejection, the employer continued to seek

applicants who were no more qualified than plaintiff. See

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)

(setting forth the elements of a prima facie case under Title

VII). A plaintiff is not required to show that the person(s)

hired in his/her stead belong to a different gender or race.

We therefore reverse the grant of summary judgment and

remand the Title VII claims to the District Court.

I. Background

A. Alleged Discriminatory and Retaliatory Treatment

Appellant joined the FAA as a Senior System Engineer in

1991. Am. Compl. p 7, reprinted in Joint Appendix ("J.A.")

91-92. She was quickly promoted to the position of Acquisi-

tion Oversight Analyst, where she exercised an oversight

function for many of the major programs at FAA. Part of

her job was to report on problems concerning safety, fraud,

mismanagement, and abuse. Id. WW 9-10, reprinted in J.A. 92.

In 1992, Ms. Stella received an exceptional performance

rating and was nominated for awards. Decl. of Marie Stella

("Stella Decl.") p 9, reprinted in J.A. 41-42.

In her oversight capacity, appellant identified and reported

on serious problems with various major FAA programs. For

example, she found improper cost estimates and other irregu-

larities in the FAA's Oceanic Program. She reported these

to a supervisor and to the Office of the Inspector General.

The contract at issue was eventually terminated in 1999,

allegedly for the reasons appellant had pointed out years

earlier. Am. Compl. WW 12-13, reprinted in J.A. 92. Ms.

Stella also found problems with other programs, including the

Advanced Automation System Program. After reporting the

problems, Ms. Stella was removed as the senior system

engineer for that project. Id. p 16, reprinted in J.A. 93. She

also found major safety, technical, and funding problems with

the FAA's "Data Link" program. The Office of the Inspector

General is reportedly addressing these problems now, but

only after the FAA allegedly expended a billion dollars of

federal funds. Id. p 17, reprinted in J.A. 93-94.

After pointing out these and other instances of fraud,

waste, and abuse, appellant allegedly received unwarranted

criticism of her work and frequently was removed from

oversight positions. She also was excluded from meetings

where she had active oversight responsibilities. Id. WW 20-21,

reprinted in J.A. 95. After appellant reported her findings to

the Office of the Inspector General, the representative from

that office informed her that her safety was in danger, that

she should watch her back, that she should keep her docu-

ments in a safe place, and that her career with the FAA was

over. Id. p 37, reprinted in J.A. 98. Ms. Stella alleged that

her work computer, desk, house, and barn were broken into,

and that the FAA did nothing to address these incidents. Id.

p 42, reprinted in J.A. 99.

Appellant also alleged that she was treated worse than her

male co-workers. She alleged that the FAA failed to give her

credit for an award she had received, removed her from

oversight responsibilities, and assigned her to work for a

lower-level male employee. Id. WW 31-33, reprinted in J.A. 96-

97. She alleged that supervisors and colleagues gave her

unwarranted bad performance evaluations, made sexually

stereotyped remarks about her, and made rude comments

regarding equal employment opportunity charges she had

filed. Id. WW 25-28, 35, reprinted in J.A. 96-97. Ms. Stella

also alleged that the FAA took no corrective action when

assorted co-workers and managers used loud sexual language

and received pornographic material on the Internet, dissemi-

nated offensive e-mails about her, and told her they would not

work for a woman and were praying for God to punish her.

Stella Decl. WW 1-4, 14, reprinted in J.A. 40-1, 43; Am. Compl.

WW 22-24, reprinted in J.A. 95-96.

Appellant alleged that since 1995, she has applied for two

SES positions for which she was qualified, but not selected.

Am. Compl. p 51, reprinted in J.A. 101; Stella Decl. p 8,

reprinted in J.A. 41. She also applied for lateral transfers to

high-visibility program management positions that she al-

leged would make her more likely to be promoted to SES.

Am. Compl. p 51, reprinted in J.A. 101; Stella Decl. p 6,

reprinted in J.A. 41. Less qualified males were selected, and

many of the males selected for the lateral transfers have

since advanced to SES. Am. Compl. p 51, reprinted in J.A.

101.

Finally, appellant pointed to an atmosphere of FAA animus

towards women. An SES manager conducted an investiga-

tion and found that other women at FAA corroborated appel-

lant's accounts of sex discrimination. Decl. of Loni Czekalski

p 5, reprinted in J.A. 49-50. The women who were inter-

viewed recounted stories of career opportunities that went to

men rather than to women, and of inappropriate remarks

about women. Id. p 6, reprinted in J.A. 50.

B. Procedural History

Appellant filed an action in the District Court for the

District of Columbia in 1997, asserting violations of Title VII

and the WPA. Appellees moved to dismiss or, in the alterna-

tive, for summary judgment. The District Court granted

appellees' motion to dismiss the WPA claims for lack of

jurisdiction. Specifically, the court held that under the Wen-

dell H. Ford Aviation Investment and Reform Act for the

21st Century, Pub. L. No. 106-181, 114 Stat. 61 (2000) ("Ford

Act"), FAA employees like Ms. Stella are required to exhaust

their administrative remedies as set forth in Title 5 of the

United States Code. Mem. Op. at 25. Under Title 5, most

federal whistleblowers must first bring their complaints to

the OSC. See 5 U.S.C. s 1214(a)(1)(A) (2000). If the OSC

terminates the investigation, then the employee may file a

whistleblower claim with the MSPB. See id. ss 1214(a)(3),

1221, 2302(b)(8). The MSPB's decision is appealable to the

Court of Appeals for the Federal Circuit. See id. s 7703.

When appellant filed her complaint, however, FAA employ-

ees were not subject to the usual Title 5 procedures, because,

in 1995, Congress had directed the FAA to develop its own

personnel management system. Under that system, FAA

whistleblower claims could not be brought through the usual

route, and the MSPB lacked jurisdiction over FAA employ-

ees' claims. When Congress passed the Ford Act in 2000, it

enacted a retroactive provision requiring federal employees to

exhaust Title 5's administrative remedies. Thus, the District

Court found that appellant was required to go through the

OSC and the MSPB. Mem. Op. at 24-26. It accordingly

dismissed her WPA claims.

The District Court also granted appellees' motion for sum-

mary judgment on the Title VII claims. In her Opposition to

the FAA's motion, appellant argued, pursuant to Federal

Rule of Civil Procedure 56(f), that she could not fully respond

to the motion because the FAA had not yet given her certain

documents that she requested in discovery, including docu-

mentation about the promotions that were given during the

relevant time period. Pl.'s Opp. to Def.'s Mot. for Summ. J.

(July 31, 2000), at 17. In support of her argument, appel-

lant's attorney submitted a sworn declaration arguing that

Ms. Stella had still not received comparator data that would

help her establish details concerning who received promotions

during the relevant period. Decl. of Gary T. Brown ("Brown

Decl.") WW 8, 10, reprinted in J.A. 47-48. The District Court,

turning directly to the merits of the FAA's motion for sum-

mary judgment, failed to consider Ms. Stella's 56(f) argument.

In addressing appellant's Title VII claim, the District Court

found that appellant had not made out a prima facie case.

First, it held that most of the conduct she alleged did not

amount to an adverse employment action. Mem. Op. at 14.

The court found that the derogatory comments and e-mail

were not so egregious as to rise to the level of an adverse

action. Id. at 15 (citing Childers v. Slater, 44 F. Supp. 2d 8,

20 (D.D.C. 1999) (vacated in part on other grounds, 197

F.R.D. 185 (D.D.C. 2000))). The court also found that appel-

lant's allegations that she received involuntary lateral trans-

fers, and that she was not granted desired lateral transfers,

were not adverse employment actions. Id. at 15-17 (citing

Brown v. Brody, 199 F.3d 446 (D.C. Cir. 1999)). Likewise,

the court concluded that the unwarranted criticisms and low

performance evaluations were not adverse actions, since they

did not affect Ms. Stella's grade or salary level. Id. at 18

(citing Brown, 199 F.3d at 458).

Most importantly, the District Court held that, "[t]o the

extent that plaintiff claims her non-selection for certain SES

and program manager positions shows disparate treatment

under Title VII, plaintiff has failed to show that any of these

decisions were based on the plaintiff's gender. The FAA

selected male and female employees to fill these positions."

Id. at 17-18.

Ms. Stella appealed to this court. Appellees moved for

summary affirmance. A panel of this court granted summary

affirmance as to all of appellant's potential Title VII claims

except for those based on the FAA's failure to promote her to

the SES positions for which she had applied. The panel

found that none of the other events alleged by appellant rises

to the level of an adverse employment action. Stella v.

Mineta, No. 00-5458, Order (May 30, 2001) (citing Brown v.

Brody, 199 F.3d at 452-53).

II. Discussion

A. The Whistleblower Claims

The District Court correctly dismissed Ms. Stella's WPA

claims for want of jurisdiction. At the time appellant's claims

arose, she could not bring them to the OSC and the MSPB.

Although the Ford Act opened this avenue for FAA employ-

ees retroactively to April 1, 1996, appellant argues that the

District Court should have asserted jurisdiction to avoid the

injustice of sending her back to the OSC and MSPB at this

late stage. To understand why the court must reject appel-

lant's argument, we must review the statutory background of

the Ford Act.

The WPA provides most federal agency employees with

protection against agency reprisals for whistleblowing activi-

ty, such as disclosing illegal conduct, gross mismanagement,

gross wasting of funds, or actions presenting substantial

dangers to health and safety. See 5 U.S.C. s 2302(b)(8).

Under the procedures set forth in Title 5 of the U.S. Code, an

employee who believes she is the victim of an unlawful

reprisal must first bring her claim to the OSC, which investi-

gates the complaint. Id. s 1214; Weber v. United States, 209

F.3d 756, 758 (D.C. Cir. 2000) (describing whistleblower pro-

tection procedures under Title 5). If the OSC finds that

there was a prohibited personnel action as defined by s 2302,

it reports its findings to the MSPB, and it can petition the

MSPB on the employee's behalf. Weber, 209 F.3d at 758. If

the OSC finds no agency wrongdoing, then the employee

herself may bring an action before the MSPB. 5 U.S.C.

ss 1221; 1214(a)(3); Weber, 209 F.3d at 758. The MSPB's

decision is appealable to the Federal Circuit. 5 U.S.C.

s 7703; Weber, 209 F.3d at 758. Under no circumstances

does the WPA grant the District Court jurisdiction to enter-

tain a whistleblower cause of action brought directly before it

in the first instance.

Unfortunately for Ms. Stella, the Title 5 avenue was not

open to FAA whistleblowers between 1996 and 2000, because

Congress, in 1995, enacted the Department of Transportation

and Related Agencies Appropriations Act, 1996, Pub. L. No.

104-50, s 347, 109 Stat. 436, 460 (1995), as amended by Pub.

L. No. 104-122, s 1, 110 Stat. 876, 876 (1996) ("DOT Act").

In the DOT Act, Congress directed the FAA to establish its

own personnel management system that would address the

"unique demands" of its workforce. Id. The FAA according-

ly established the FAA Personnel Management System. See

Federal Aviation Administration Personnel Management Sys-

tem (Mar. 28, 1996), reprinted in J.A. 108-49. Under the

applicable grievance procedure, an FAA employee in Ms.

Stella's position was required to file an internal grievance

with her supervisor and then file a formal grievance with a

second-line manager. See id. Chapter III, s 4, reprinted in

J.A. 137-41. The decision of the second-line manager was not

subject to review in any forum. Id. s 4(f)(ii), reprinted in

J.A. 140.

Nor could an FAA employee in Ms. Stella's position have

brought a whistleblower action in the OSC and MSPB, and

appealed an adverse decision to the Federal Circuit. Under

DOT Act s 347(b), while s 2302's substantive prohibition

against reprisals still applied to FAA whistleblowers, the

sections of Title 5 providing for OSC and MSPB enforcement

jurisdiction over those matters did not. See DOT Act

s 347(b), 109 Stat. at 460; Diefenderfer v. MSPB, 194 F.3d

1275, 1278-79 (Fed. Cir. 1999). Thus, under the DOT Act,

FAA employees were "protected against whistleblowing re-

prisals" in the abstract, but their recourse lay solely "within

the FAA personnel system and under its procedures." Dief-

enderfer, 194 F.3d at 1279. It would therefore have been

futile for Ms. Stella to bring her claims to the MSPB at the

time they arose.

In April, 2000, Congress enacted the Ford Act, amending

Title 49 of the U.S. Code. There, Congress provided that

FAA employees could submit appeals to the MSPB and seek

judicial review of its decisions. Ford Act s 307(a), 114 Stat.

at 124-25 (amending 49 U.S.C. s 40122(g)(3)). Congress also

provided that FAA employees would once again be subject to

the whistleblower protection procedures of Title 5, this time

"including the provisions for investigation and enforcement

as provided in Chapter 12 of title 5." Id. (amending 49

U.S.C. s 40122(g)(2)(A)) (emphasis added). Congress made

this part of the Ford Act retroactive to April 1, 1996. Id.

(amending 49 U.S.C. s 40122(g)(4)); see also Miller v. Dep't

of Transp., 86 M.S.P.R. 293, 297-98 (2000) (holding that

Congress made s 307 of the Ford Act retroactive to April 1,

1996, as an exception to the general effective date for other

provisions of the Act).

Since the enactment of the Ford Act, the MSPB has taken

the position that it now has jurisdiction over cases of FAA

employees for any actions appealable to the MSPB as of

March 31, 1996. See Miller, 86 M.S.P.R. at 298. The MSPB

has also recently clarified that an employee in Ms. Stella's

position must file a new complaint with the OSC and allow it

to be investigated under the OSC's retroactive Ford Act

authority before proceeding to the MSPB. See Schaefer v.

Dep't of Transp., 87 M.S.P.R. 37, 42 (2000) (finding that the

purpose of the exhaustion requirement would be thwarted if

the OSC were not given a chance to investigate the whistle-

blower's complaint under the retroactive authority given to

the OSC by the Ford Act).

From the foregoing, it should be clear that Ms. Stella may

now file a new complaint with the OSC, which has retroactive

authority under the Ford Act to investigate it. If she is not

satisfied with the OSC's disposition of her case, Ms. Stella

may proceed to the MSPB, also vested with retroactive

authority over the cases of FAA whistleblowers. She may

then appeal the MSPB's decision to the Court of Appeals for

the Federal Circuit.

Appellant argues that the District Court should have exer-

cised its discretion to excuse her failure to exhaust adminis-

trative remedies, given that it was impossible for her to do so

at the time the case arose. In so arguing, appellant invokes

the fact that had she been able to bring both discrimination

and WPA claims to the MSPB as a "mixed case," and had the

MSPB rendered an unfavorable decision, appellant could have

joined all of her claims and appealed to the District Court.

See 5 U.S.C. s 7703(b)(2), (c); Barnes v. Small, 840 F.2d 972,

979 (D.C. Cir. 1988) (stating that where the MSPB decides a

case combining discrimination and non-discrimination claims,

the District Court takes jurisdiction over appeals from both

determinations). The "mixed case" argument does not save

appellant's claims, however, because even that route to Dis-

trict Court would have required her to initiate her action at

the MSPB, which she did not, and could not, do. Further-

more, because the District Court lacked jurisdiction to hear a

whistleblower claim in the first instance, the court lacked the

power to excuse Ms. Stella's failure to exhaust her adminis-

trative remedies.

Even if the District Court had the discretion to hear Ms.

Stella's claims, it did not abuse that discretion by declining to

do so. Appellant expresses the concern that her claims will

now be stale by MSPB standards, or that there will be some

other time bar to her initiating the OSC/MSPB process. At

oral argument, the FAA stated its position that there were no

time bars to appellant's now bringing her claims to the OSC

and the MSPB. The FAA agreed that, under both the Ford

Act and the prevailing case law, Ms. Stella's claims are not

too old to be pursued before the OSC, MSPB, and, if neces-

sary, the Federal Circuit. The FAA also stated that it would

have no jurisdictional objection to Ms. Stella bringing this

case to the OSC and going forward with the OSC/MSPB

route. Thus, if Ms. Stella follows this route, she has FAA's

assurance that the agency will not argue that her claims are

untimely or wanting for lack of jurisdiction.

B. The Title VII Prima Facie Case

With respect to appellant's Title VII claims, the District

Court concluded that Ms. Stella did not make out a prima

facie case of discrimination because the FAA selected both

male and female employees to fill the contested SES posi-

tions. Mem. Op. at 17-18. In so ruling, the court applied the

wrong legal standard for a prima facie case of discrimination.

Discrimination against federal employees on the basis of sex

is prohibited by 42 U.S.C. s 2000e-16(a), while the more

familiar s 2000e-2(a) governs discrimination by private em-

ployers. See Brown, 199 F.3d at 452. In both contexts, the

legal analysis is the same: the familiar burden-shifting test of

McDonnell Douglas. Id.

Under McDonnell Douglas, it is the plaintiff's burden to

establish a prima facie case of discrimination by a preponder-

ance of the evidence. 411 U.S. at 802; Tex. Dep't of Cmty.

Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). If the

plaintiff establishes a prima facie case, the employer must

then articulate a legitimate, nondiscriminatory reason for its

actions. McDonnell Douglas, 411 U.S. at 802. The plaintiff

must then demonstrate that the employer's stated reason was

pretextual and that the true reason was discriminatory. Id.

at 804; St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08

(1993).

McDonnell Douglas involved a claim of racial discrimina-

tion in hiring. The Supreme Court explained that the plain-

tiff could establish his prima facie case of discrimination by

showing that he belonged to a racial minority, that he applied

and was qualified for an available position, that he was

rejected despite his qualifications, and that, after his rejec-

tion, the employer continued to seek applicants who were no

more qualified than plaintiff. 411 U.S. at 802. The Court

never suggested that the plaintiff's prima facie case would

automatically be extinguished if the position were filled by

someone who was also a member of the plaintiff's protected

class. The Court cautioned that, because the facts of Title

VII claims vary, its specifications of the prima facie case in

McDonnell Douglas might not be applicable to every factual

situation. Id. at 802 n.13; see also Swierkiewicz v. Sorema

N.A., 122 S. Ct. 992, 997 (2002) (stating that the requirements

of the prima facie case can vary depending on context and

"were 'never intended to be rigid, mechanized, or ritualistic' ")

(quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577

(1978)). This court, like our sister circuits, requires a plaintiff

to state a prima facie claim of discrimination by establishing

that: "(1) she is a member of a protected class; (2) she

suffered an adverse employment action; and (3) the unfavora-

ble action gives rise to an inference of discrimination."

Brown, 199 F.3d at 452.

The District Court's holding that Ms. Stella was required to

show that the SES positions were not filled by women finds

no support in McDonnell Douglas. In International Broth-

erhood of Teamsters v. United States, 431 U.S. 324, 358 n.44

(1977), the Court explained the function served by the

McDonnell Douglas formula. The Court stated that, under

McDonnell Douglas, a plaintiff must show that his rejection

is not attributable to "the two most common legitimate rea-

sons on which an employer might rely to reject a job appli-

cant: an absolute or relative lack of qualifications or the

absence of a vacancy in the job sought." Id. The Court

further explained that "[e]limination of these reasons for the

refusal to hire is sufficient, absent other explanation, to create

an inference that the decision was a discriminatory one." Id.

The Court did not discuss the factor relied on by the District

Court, and that factor is not relevant to the analysis set forth

by the Court in Teamsters.

The point was made even more clearly in O'Connor v.

Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996),

an age discrimination case. In O'Connor, a unanimous Court

found the fact that the "plaintiff was replaced by someone

outside the protected class" not to be a "proper element of

the McDonnell Douglas prima facie case." Id. Courts of

Appeals have applied the Supreme Court's holding in O'Con-

nor to the sex discrimination context. In Pivirotto v. Innova-

tive Systems, Inc., 191 F.3d 344, 347 (3d Cir. 1999), the Third

Circuit "join[ed] seven other circuits in holding that a plaintiff

claiming discriminatory firing need not prove, to make out a

prima facie case, that she was replaced by someone outside

the relevant class" (footnote omitted). The court noted the

Supreme Court's oft-recited qualification that an important

function of the prima facie case is to weed out the most

common lawful reasons for the defendant's action, such as the

plaintiff's lack of qualifications or the elimination of the

position altogether. Id. at 352 (citing Burdine, 450 U.S. at

253-54). It also pointed out that even if a plaintiff was

replaced by someone within her class, she could still demon-

strate that the employer treated her worse than others

because she was a member of the protected class. Id. at 353.

She may have been "treated differently from similarly situat-

ed male employees." Id. at 353-54.

Nearly every Court of Appeals to consider the issue, both

before and after O'Connor, has agreed that the fact that an

employer replaces a plaintiff with a person from within the

same protected class is not, by itself, grounds for dismissing a

Title VII claim. See Perry v. Woodward, 199 F.3d 1126,

1136-41 (10th Cir. 1999), cert. denied, 529 U.S. 1110 (2000);

Nieto v. L & H Packing Co., 108 F.3d 621, 624 & n.7 (5th Cir.

1997); Carson v. Bethlehem Steel Corp., 82 F.3d 157, 158-59

(7th Cir. 1996) (per curiam); Jackson v. Richards Med. Co.,

961 F.2d 575, 587 n.12 (6th Cir. 1992); Cumpiano v. Banco

Santander P.R., 902 F.2d 148, 154-55 (1st Cir. 1990); Walker

v. St. Anthony's Med. Ctr., 881 F.2d 554, 558 (8th Cir. 1989);

Meiri v. Dacon, 759 F.2d 989, 995-96 (2d Cir.), cert. denied,

474 U.S. 829 (1985); Howard v. Roadway Express, Inc., 726

F.2d 1529, 1534-36 (11th Cir. 1984). But see Brown v.

McLean, 159 F.3d 898, 905 (4th Cir. 1998) ("In order to make

out a prima facie case of discriminatory termination, a plain-

tiff must ordinarily show that the position ultimately was

filled by someone not a member of the protected class."), cert.

denied, 526 U.S. 1099 (1999).

This court has not faced the question directly until now. In

answering it we hold, in conformity with the overwhelming

majority of other circuits to consider the issue, that a plaintiff

in a discrimination case need not demonstrate that she was

replaced by a person outside her protected class in order to

carry her burden of establishing a prima facie case under

McDonnell Douglas. To the extent the prior decisions of this

court have, when reciting the elements of a prima facie case

in passing, created confusion on this point, we now clear up

such confusion by answering the question we now squarely

confront for the first time. Cf. Cones v. Shalala, 199 F.3d

512, 517 (D.C. Cir. 2000) (stating in dictum that a plaintiff

establishes a prima facie case by showing that she is female,

that she was refused a position for which she applied and was

qualified, and that the employer filled the position with a

male) (quoting Kolstad v. Am. Dental Ass'n, 108 F.3d 1431,

1436 (D.C. Cir. 1997), modified in part on other grounds, 139

F.3d 958 (D.C. Cir. 1998) (en banc), vacated, 527 U.S. 526

(1999)); cf. also Brown, 199 F.3d at 451 (approving the

District Court's observation that a sex discrimination claim

regarding lateral transfers would be baseless because two of

the employees selected were women, without discussing the

elements of the McDonnell Douglas prima facie case).

Thus, although women and men may have been promoted

to the SES positions for which Ms. Stella applied, she may

nonetheless be able to demonstrate that she received unfavor-

able treatment in the promotion process because she is a

woman. There is no question that failure to promote is an

"adverse action" for purposes of the prima facie case. See

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998).

We reverse the District Court's holding that because women

were promoted to SES positions, appellant could not carry

her burden of establishing a prima facie case of discrimina-

tion.

C. The District Court Should Determine Whether Further

Discovery is Necessary

Appellees argue that even if the District Court applied an

erroneous standard in evaluating appellant's prima facie case,

the error was harmless because appellant did not come forth

with sufficiently specific facts to establish the other elements

of her prima facie case: namely, that she applied for open

SES positions for which she was qualified and that the FAA

passed her over for those promotions while continuing to seek

other applicants. Ms. Stella alleged only that she applied for

two open SES positions since 1995 for which she was qualified

but was not selected. The FAA argues that she was required

to give more details, including the names of the positions, the

selecting officials, the exact dates, and so on.

We reject this argument. First, appellees conceded at oral

argument that additional specificity is not required for appel-

lant to establish a prima facie case of discrimination. The

FAA did not argue that Ms. Stella did not apply for the

positions, that she was not qualified for them, or that no one

was promoted to SES during the relevant period. Thus, once

advised of the correct legal standard, the District Court may

conclude that Ms. Stella established her prima facie case by a

preponderance of the evidence.

Even if more specificity is required, the District Court

should determine in the first instance whether to defer ruling

on the motion for summary judgment until those details can

be obtained through discovery that appellant has requested.

In her Opposition to Defendant's Motion for Summary Judg-

ment, Ms. Stella notified the District Court that the FAA had

not responded to her requests for documents, including docu-

ments pertaining to the employees who did receive pro-

motions during the relevant time period. Pl.'s Opp. to Def.'s

Mot. for Summ. J. at 17. She characterized this request as

"relevant comparator data to support that adverse actions

occurred." Id. In a sworn declaration in support of Ms.

Stella's Opposition, her attorney stated that Ms. Stella had

sought comparator data on promotions and awards for male

employees and documentation pertaining to the people who

received promotions during the relevant time period. Brown

Decl. WW 8, 10, reprinted in J.A. 47-48. He stated that this

information would be "particularly relevant since Defendant

has claimed there exists no adverse action and Plaintiff points

to her repeated denials of promotions." Id. p 10, reprinted in

J.A. 48.

The District Court granted summary judgment, holding

that Ms. Stella could not prevail on her discrimination claim

because men and women were promoted to the SES positions

for which she had applied. Mem. Op. at 17-18. It follows

from the District Court's reasoning that the requested docu-

ments could not have helped her to establish a prima facie

case of discrimination. Had the District Court applied the

correct legal standard, it may not have granted summary

judgment without requiring the FAA to supply the requested

data regarding the SES positions that were open during the

relevant period and the employees who were chosen to fill

those positions. Alternatively, the court might have deter-

mined that no additional details were necessary to establish

that appellant applied for promotions for which she was

qualified and did not receive them.

District Courts are afforded substantial discretion to man-

age discovery as they see fit. Moreover, District Courts are

afforded discretion in ruling on requests for additional discov-

ery pursuant to Rule 56(f). See Taylor v. FDIC, 132 F.3d

753, 765 (D.C. Cir. 1997). Having corrected the standard

pursuant to which the District Court must evaluate appel-

lant's prima facie case, we remand so that the District Court

may determine whether further discovery is called for. If the

District Court determines that appellant has submitted facts

sufficient to establish a prima facie case, it must proceed with

the burden-shifting analysis of McDonnell Douglas and evalu-

ate the FAA's proffered reasons for declining to promote Ms.

Stella to the SES positions for which she applied. The

information requested by appellant may also be relevant in

the future in determining whether any reasons the FAA

offers for failing to promote Ms. Stella are pretextual. See

generally Paquin v. Fed. Nat'l Mortgage Ass'n, 119 F.3d 23,

25, 28-29 (D.C. Cir. 1997) (reversing the District Court's grant

of summary judgment and remanding for further discovery

where the plaintiff in an employment discrimination suit had

requested, but had not received, certain comparator data).

III. Conclusion

For the foregoing reasons, we affirm the District Court's

dismissal of Ms. Stella's WPA claims, reverse the District

Court's grant of summary judgment, and remand to the

District Court for further proceedings.