Waterhouse v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 11, 2001 Decided August 13, 2002

No. 01-7018

Ellen Waterhouse,

Appellant

v.

District of Columbia and

Anthony A. Williams, Mayor of the District of Columbia,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 99cv00241)

Theodore M. Cooperstein argued the cause and filed the

briefs for appellant.

Mary E. Pivec argued the cause for appellees. With her

on the brief was Robert R. Rigsby, Corporation Counsel.

Jessica A. Valltos entered an appearance.

Before: Sentelle, Randolph, and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: Alleging that she was unlawfully

terminated because of her race, Ellen Waterhouse brought

suit against her former employer, the District of Columbia,

and her former supervisor, Mayor Anthony Williams. The

district court granted the defendants' motion for summary

judgment, holding that Waterhouse failed to offer evidence

upon which a reasonable jury could find that her termination

was the result of discrimination. We affirm.

I

In March 1997, Ellen Waterhouse, a white female, began

work as the Chief Financial Officer (CFO) for the District of

Columbia's Department of Administrative Services (DAS).

She was hired by Anthony Williams, who at the time was the

Chief Financial Officer for the District. She worked for him

and was directly supervised by several members of his senior

staff, including Norman Dong, Williams' Chief of Staff, Laura

Triggs, the Associate Chief Financial Officer, and Earl Cab-

bell, one of Williams' Deputy CFOs. Dong, Triggs, and

Cabbell all participated in Waterhouse's hiring.

DAS provides procurement and accounting services to the

agencies that make up the District of Columbia government.

As its CFO, Waterhouse was responsible for making pay-

ments to vendors who provide telecommunications, security,

custodial, and other services to those agencies, and for man-

aging the process through which the agencies reimburse DAS

for making those payments. It was also her duty to oversee

the preparation of year-end closing packages, which resolve

any discrepancies between the amount of money each agency

transferred to DAS during the preceding year and the

amount DAS actually paid for the services used by that

agency. In addition, she was charged with preparing the

DAS annual budget and with hiring, managing, and improving

the DAS financial team. As part of her job, Waterhouse was

expected to make regular reports to Dong and Triggs con-

cerning the status of these projects.

In late 1997, citing her failure to fulfill her job responsibili-

ties, Dong and Triggs recommended that Waterhouse be

fired. In January 1998, Williams terminated her employ-

ment. Shortly thereafter, Waterhouse filed a charge of dis-

crimination with the Equal Employment Opportunity Com-

mission. She received a right-to-sue letter, and subsequently

brought suit against the District and Mayor Williams (in his

official capacity) in the United States District Court for the

District of Columbia. In her complaint, Waterhouse alleged

that the defendants had terminated her on the basis of race in

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

ss 2000e et seq.1

After conducting discovery, the defendants moved for sum-

mary judgment pursuant to Federal Rule of Civil Procedure

56, contending that Waterhouse was fired because of her

failure to fulfill her job responsibilities, and that there was no

evidence upon which a reasonable jury could find that race,

rather than her poor performance, was the cause of her

termination. As required by Local Civil Rule 7.1(h), the

defendants filed a "Statement of Facts" that they contended

were undisputed. That statement documented evidence re-

lated to Waterhouse's performance problems. In response,

Waterhouse filed a "Verified Statement of Material Facts"

that she contended were in dispute.2

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1 Waterhouse also charged violations of 42 U.S.C. s 1981(b),

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 contractual rela-

tionship." She does not mention s 1981(b) on appeal, and, in any

event, we analyze claims under both statutes using the same

framework. See Sparrow v. United Air Lines, Inc., 216 F.3d 1111,

1114 n.3 (D.C. Cir. 2000).

2 Rule 7.1(h) requires a party moving for summary judgment to

provide a statement identifying the undisputed facts that entitle it

to judgment as a matter of law, and directs the nonmoving party to

The district court reviewed these submissions and found

that Waterhouse's statement, and the record material it ref-

erenced, failed to rebut "many of the facts set forth by defen-

dants concerning plaintiff's alleged failure to perform her

work satisfactorily." Waterhouse v. District of Columbia,

124 F. Supp. 2d 1, 4-5 (D.D.C. 2000). In accordance with

Rule 7.1(h),3 the court treated as admitted all facts not con-

troverted by the plaintiff, and based on those facts concluded

that Waterhouse could not establish that the reasons prof-

fered by the defendants were false. Id. at 5, 7-11. The

court then considered additional evidence that Waterhouse

contended demonstrated discrimination, including statements

allegedly made by Williams and Dong. It found that this

evidence did not create a genuine dispute as to the defen-

dants' motivation for firing her. Id. at 11-13. Consequently,

the court concluded that a reasonable jury could not find that

Waterhouse's termination was motivated by a discriminatory

animus, and therefore granted summary judgment for the de-

fendants. Id. at 13.4

__________

respond with a statement listing the facts "as to which it is

contended there exists a genuine issue necessary to be litigated."

D.D.C. Local Civ. Rule 7.1(h). The identical rule appears as Local

Civil Rule 56.1.

3 The rule states that "the court may assume that facts identified

by the moving party in its statement of material facts are admitted,

unless such a fact is controverted in the statement of genuine issues

filed in opposition to the motion." D.D.C. Local Civ. Rule 7.1(h).

4 Waterhouse's complaint also claimed that the defendants sub-

jected her to a racially hostile work environment, and that they

discriminated against her prior to her termination by giving her

"less time, resources and support" than similarly situated African-

American employees. Compl. p p 16, 22. The district court granted

summary judgment against Waterhouse on the hostile work envi-

ronment claim because she did not oppose the defendants' motion

with respect to that claim. 124 F. Supp. 2d at 3. It granted

judgment on the second claim because she "set forth no evidence

whatsoever that she received fewer resources than other non-white

agency-based CFOs," and "failed to identify any similarly situated

African-American CFO who was treated more favorably than she

II

We review the district court's decision to grant summary

judgment de novo. Breen v. Department of Transp., 282

F.3d 839, 841 (D.C. Cir. 2002); Aka v. Washington Hosp.

Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998). In doing so, we

must view the evidence in the light most favorable to Water-

house and draw all reasonable inferences in her favor.

Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 152

(2000); Aka, 156 F.3d at 1288.

A district court may grant summary judgment only if

" 'there is no genuine issue as to any material fact and ... the

moving party is entitled to a judgment as a matter of law.' "

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)

(quoting Fed. R. Civ. P. 56(c)). A dispute about a material

fact "is 'genuine' ... if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party." Id. at

248. A moving party is "entitled to judgment as a matter of

law" against "a party who fails to make a showing sufficient

to establish the existence of an element essential to that

party's case, and on which that party will bear the burden of

proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986).

Consistent with Local Civil Rule 7.1(h), in determining

whether to grant summary judgment the district court looked

only at the parties' statements and the record material they

referenced. See Jackson v. Finnegan, Henderson, Farabow,

Garrett & Dunner, 101 F.3d 145, 154 (D.C. Cir. 1996) (holding

that the district court may rely on statements submitted in

accordance with the local rule and "is under no obligation to

sift through the record ... in order to evaluate the merits of

[a] party's case"). We limit our review to those materials as

well, and, like the district court, we treat as admitted all facts

not controverted in Waterhouse's Verified Statement. See

SEC v. Banner Fund Int'l, 211 F.3d 602, 615 (D.C. Cir. 2000);

__________

was." Id. at 15. Waterhouse does not challenge the dismissal of

those claims on appeal. See Appellant's Br. at 1.

Jackson, 101 F.3d at 154; D.D.C. Local Civ. Rule 7.1(h).5

Title VII makes it "an unlawful employment practice for an

employer to ... discharge any individual ... because of such

individual's race [or] color." 42 U.S.C. s 2000e-2(a). The

Supreme Court's opinion in McDonnell Douglas provides the

familiar framework for analyzing Title VII claims that are

based principally on circumstantial evidence. McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973); see

Reeves, 530 U.S. at 142. Although "intermediate evidentiary

burdens shift back and forth in this framework, 'the ultimate

burden of persuading the trier of fact that the defendant

intentionally discriminated against the plaintiff remains at all

times with the plaintiff.' " Id. at 143 (quoting Texas Dept. of

Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

Under the McDonnell Douglas framework, "the plaintiff

must [first] establish a prima facie case of discrimination."

Reeves, 530 U.S. at 142 (citing St. Mary's Honor Ctr. v.

Hicks, 509 U.S. 502, 506 (1993)). If the plaintiff establishes a

prima facie case, the burden of production shifts to the

defendant to " 'produc[e] evidence that the plaintiff was re-

jected ... for a legitimate, nondiscriminatory reason.' " Id.

(quoting Burdine, 450 U.S. at 254). If the defendant satisfies

that burden, "the McDonnell Douglas framework--with its

presumptions and burdens--disappear[s], and the sole re-

maining issue [i]s discrimination vel non." Id. at 142-43

(internal quotation marks and citations omitted).

At that point, to survive summary judgment the plaintiff

must show that a reasonable jury could conclude that she was

terminated for a discriminatory reason. See Aka, 156 F.3d at

1290. The question is:

__________

5 The district court noted that the format of Waterhouse's Veri-

fied Statement was deficient in a number of respects. 124 F. Supp.

2d at 4. Waterhouse's appellate counsel disputed this and contend-

ed that the statement "did not actually violate" Rule 7.1(h), Appel-

lant's Reply Br. at 9, although he conceded at oral argument that

the statement was not in "the ideal or exemplary format." While

we regard the district court's criticism of the statement as quite

well founded, the point is moot since the court disregarded the

statement's deficiencies and decided the summary judgment motion

as if the statement were valid.

whether the jury could infer discrimination from the

combination of (1) the plaintiff's prima facie case; (2) any

evidence the plaintiff presents to attack the employer's

proffered explanation for its actions; and (3) any further

evidence of discrimination that may be available to the

plaintiff (such as independent evidence of discriminatory

statements or attitudes on the part of the employer)....

Id. at 1289; see Reeves, 530 U.S. at 151. With respect to the

second category of evidence, "the plaintiff may attempt to

establish that he was the victim of intentional discrimination

'by showing that the employer's proffered explanation is

unworthy of credence.' " Reeves, 530 U.S at 143 (quoting

Burdine, 450 U.S. at 256). As the Supreme Court has

explained, "[p]roof that the defendant's explanation is unwor-

thy of credence is simply one form of circumstantial evidence

that is probative of intentional discrimination," because "in

appropriate circumstances, the trier of fact can reasonably

infer from the falsity of the explanation that the employer is

dissembling to cover up a discriminatory purpose." Id. at

147.

III

To establish her prima facie case, Waterhouse contended

that she performed her job at an acceptable level, that she

was discharged, and that a person of another race was hired

in her stead. See Waterhouse, 124 F. Supp. 2d at 5, 6-7.

Although the defendants disputed that she performed at an

acceptable level, the district court noted that inadequate

performance was also the defendants' explanation for termi-

nating Waterhouse. The court therefore announced that it

would "assume that a prima facie case is established and

proceed to analyze whether plaintiff has demonstrated that

defendants' proffered reason is a pretext for discrimination."

124 F. Supp. 2d at 7 (internal quotation marks and alteration

omitted).

The defendants do not challenge that approach on appeal.6

Nor does Waterhouse dispute the district court's finding that

__________

6 See Fischbach v. District of Columbia Dep't of Corr., 86 F.3d

1180, 1182 (D.C. Cir. 1996) ("proceed[ing] directly to the second

the defendants satisfied their burden of production by prof-

fering a legitimate reason for firing her, namely her poor job

performance. We therefore proceed directly to the final

question: did Waterhouse meet her "burden of showing that

a reasonable jury could conclude that [she] had suffered

discrimination"? Aka, 156 F.3d at 1290. As noted above, we

consider three possible sources of evidence that, in combina-

tion, Waterhouse might have relied upon to meet that burden:

(1) evidence she used to establish her prima facie case; (2)

evidence that the defendants' proffered explanation for her

termination was false; and (3) any additional evidence of

discriminatory motive. Id. at 1289; see Reeves, 530 U.S. at

151.

The prima facie case that Waterhouse presented to get to

the second step of the McDonnell Douglas analysis is particu-

larly weak support for a claim of intentional discrimination, as

it was based on little more than an allegation that the

defendants rebutted in the next step: that she had adequate-

ly performed her responsibilities as CFO. Accordingly, Wa-

terhouse does not dispute that her prima facie case adds little

to the pile of evidence that she must accumulate to survive

summary judgment.

Nor did Waterhouse offer "sufficient evidence for a reason-

able factfinder to reject the employer's nondiscriminatory

explanation for its decision." Reeves, 530 U.S. at 140. Ac-

cording to the defendants, Waterhouse was fired due to poor

job performance. The district court's thorough opinion dem-

onstrates that there was no genuine issue regarding Water-

house's failure to fulfill her basic job responsibilities, largely

__________

step under McDonnell Douglas" where the defendant conceded that

the plaintiff had "made out a prima facie case of discrimination");

see also Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1554

(D.C. Cir. 1997) (noting that "[w]here the defendant has done

everything that would be required of him if the plaintiff had

properly made out a prima facie case, whether the plaintiff really

did so is no longer relevant" (quoting U.S. Postal Serv. Bd. of

Governors v. Aikens, 460 U.S. 711, 715 (1983))).

because she failed to "dispute many, if not most, of the facts

on which defendants rely to support their termination deci-

sion." 124 F. Supp. 2d at 7. We highlight only a few

examples.

One of the primary reasons the defendants cited for Water-

house's termination was her delay in submitting DAS' Fiscal

Year (FY) 1997 closing packages. They asserted that, as part

of the year-end closing process, Waterhouse was required to

provide audit and financial information on or before Novem-

ber 30, 1997, and that she failed to meet that deadline as well

as several interim deadlines. Defs.' Stmt.p p 22-24, 32. At

her deposition, Waterhouse admitted that she missed the

deadlines, Waterhouse Dep. Vol. II at 38-39, and she did not

dispute that her delay had an adverse impact on other

agencies, 124 F. Supp. 2d at 8 n.10 (citing Defs.' Stmt. p 22).

She also did not dispute that Chief of Staff Dong, Associate

CFO Triggs, and Deputy CFO Cabbell met with her on

several occasions to express dissatisfaction with her progress

in submitting the closing information. Id. (citing Defs.' Stmt.

p p 24, 32).7 Her only defense was that she was not solely

responsible for the delay, and that she should have received

greater support from outside contractors. Pl.'s Verif. Stmt.

at 16-17.

The defendants also cited Waterhouse's failure to meet

deadlines related to the budget formulation process. Specifi-

cally, their Statement of Facts charged that in late 1997, the

Deputy CFO of the Office of Budget and Planning reported

to Williams that Waterhouse was late in providing his office

with several reports necessary to prepare the FY 1999 budget

__________

7 Dong, Triggs, and Cabbell determined that it was necessary to

assign employees from other departments to assist Waterhouse.

Defs.' Stmt. p p 22-24. Waterhouse did not dispute that one of those

employees, Laura Braxton, reported that she found serious deficien-

cies in Waterhouse's management of the process, and that Water-

house's failure to submit timely and accurate FY 1997 closing

packages had forced other district agencies to reopen their books

and record budget deficiencies. 124 F. Supp. 2d at 8 n.10 (citing

Defs.' Stmt. WW 25, 31). Nor did she dispute that an outside

contractor echoed Braxton's complaints. Id.

for DAS. He also told Williams that she did not have the

financial expertise necessary to manage the budget process.

Defs.' Stmt. p 27; Williams Aff. p 18. As the district court

noted, Waterhouse did not contest these facts. 124 F. Supp.

2d at 11 n.15. Instead, she described an improved system

she said she implemented for providing budgetary informa-

tion to the agencies served by DAS. Pl.'s Verif. Stmt. at 13.

The defendants further charged that Waterhouse failed to

pay vendors on time. Defs.' Stmt. p p 14-15. Waterhouse did

not take issue with this charge. To the contrary, she ac-

knowledged during her deposition that she was late in making

payments and that vendors complained to her superiors.

Waterhouse Dep. Vol. I at 198-202. In response to this

charge, her Verified Statement merely asserted--without of-

fering any evidentiary support--that "most invoices" were not

paid very late, and that she "made substantial progress

toward improving her agency's timely payments to vendors."

Pl.'s Verif. Stmt. at 7. Waterhouse also contended that in

some cases she did not make payments because she believed

they were not authorized. However, she admitted that she

failed to make those payments even after she explained her

rationale to her superiors and they directed her to make

payment. Id.; Waterhouse Dep. Vol. I at 149-54.

Finally, the defendants complained, and Waterhouse con-

ceded, that she failed to submit monthly status reports re-

quired by Dong and Triggs. Defs.' Stmt. WW 17, 34; see

Waterhouse Dep. Vol. II at 30-31 (admitting that she failed

on several occasions to submit the reports). Waterhouse

contended that this failure was not important because she

kept her supervisors updated by other means. Pl.'s Verif.

Stmt. at 12.

Because Waterhouse did not contravene--and in fact ad-

mitted--many of the deficiencies the defendants cited con-

cerning her performance, she failed to establish that her

" 'employer's proffered explanation [was] unworthy of cre-

dence.' " Reeves, 530 U.S. at 143 (quoting Burdine, 450 U.S.

at 256). At best, her responses constituted an argument that,

notwithstanding those failings, the District should not have

terminated her because there were extenuating circumstances

and there were some positive attributes to her performance.

But courts are without authority to " 'second-guess an em-

ployer's personnel decision absent demonstrably discriminato-

ry motive.' " Fischbach v. District of Columbia Dep't of

Corr., 86 F.3d 1180, 1182 (D.C. Cir. 1996) (quoting Milton v.

Weinberger, 696 F.2d 94, 100 (D.C. Cir. 1982)). And Water-

house's responses offered no grounds for a rational juror to

conclude that the reason she was fired was racial discrimina-

tion rather than poor performance. See Forman v. Small,

271 F.3d 285, 291 (D.C. Cir. 2001) ("Consistent with the

courts' reluctance to become involved in micromanagement of

everyday employment decisions, the question before the court

is limited to whether [plaintiff] produced sufficient evidence of

... discrimination, not whether he was treated fairly...."

(citations omitted)); Fischbach, 86 F.3d at 1183 (noting that

to rebut the employer's nondiscriminatory explanation " '[i]t

is not enough for the plaintiff to show that a reason given for

a job action is not just, or fair, or sensible' " (quoting Pignato

v. American Trans Air, Inc., 14 F.3d 342, 349 (7th Cir.

1994))).8

In a further attempt to undermine the defendants' explana-

tion for her termination, Waterhouse identified six "black

managers" who she alleged were not terminated despite

performance problems. Pl.'s Verif. Stmt. at 19-20. She did

not allege, however, that even one had problems of the same

magnitude cited by defendants in explaining their decision to

fire her. Indeed, as the district court found, Waterhouse's

Verified Statement "provide[d] no evidence that these individ-

uals ... had individual performance problems [or] had perfor-

mance problems similar to hers." 124 F. Supp. 2d at 14. In

the absence of evidence that the comparators were actually

__________

8 Had Waterhouse been able to demonstrate, as she claimed in

her complaint, that the reason she failed was that she was intention-

ally given "less time, resources and support" than similarly situated

African-American employees, Compl. WW 16, 22, her responses would

have been considerably more probative. As noted above, however,

the district court granted summary judgment on that claim because

Waterhouse proffered "no evidence whatsoever" to support it, 124

F. Supp. 2d at 15, and she has not challenged that decision on

appeal. See supra note 4.

similarly situated to her, this allegation added nothing to

Waterhouse's claim that the defendants' explanation for her

termination was mere pretext. See McGill v. Munoz, 203

F.3d 843, 848 (D.C. Cir. 2000) (holding that the plaintiff

provided no evidence of pretext where she "offered no evi-

dence that employees with similarly suspicious patterns of

absenteeism were treated any differently than she was");

Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507,

1514 (D.C. Cir. 1995) (finding that the terminated employee

failed to show that the retained employee had similar difficul-

ty in getting along with others in the firm).

Having concluded that neither her prima facie case nor her

evidence of pretext--either separately or in combination--

was sufficient to permit her case to go to a jury, we turn

finally to the additional evidence of discriminatory intent

proffered by Waterhouse. For this, she relied primarily on

two statements by her superiors, one by Anthony Williams

and one by Norman Dong.

With respect to Mayor Williams, Waterhouse cited a Wash-

ington Post article that quoted him as saying: "One of the

legacies I want to leave is that one of the finest run cities in

the country was run by an African-American team and that is

an important message." Pl.'s Verif. Stmt. at 20, Exh. P. As

the district court pointed out, however, this statement was

made in the context of a general discussion of Williams'

commitment to challenging stereotypes with respect to his

mayoral staff. It was not made when he was District CFO;

rather, it was made more than a year after he became Mayor

and more than two years after Waterhouse was terminated.

124 F. Supp. 2d at 11-12.9

__________

9 Waterhouse further contends that Williams was quoted as de-

crying that "it was too white at the top in the beginning." Appel-

lant's Br. at 25. Her citation, however, is to the same Washington

Post article, which attributes the quote not to Williams but to an

anonymous "former staffer who is white," and suggests that it

refers to the beginning of Williams' mayoral administration rather

than of his service as District CFO. Pl.'s Verif. Stmt., Exh. P.

Waterhouse also pointed to a statement that Dong alleged-

ly made during a discussion of office hiring with Antonio

Acevedo, who was Human Resources Director for the Office

of the Chief Financial Officer. According to Acevedo, Dong

said that the District "had too many white managers al-

ready." Pl.'s Verif. Stmt. at 18 (citing Acevedo Dep.). The

statement was made midway through Waterhouse's tenure,

and its probative value was seriously undercut by the undis-

puted fact that Dong approved the decision to hire Water-

house earlier that same year. Dong Aff. p 5. See Grady v.

Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997) (affirm-

ing summary judgment and noting that "when the person

who made the decision to fire was the same person who made

the decision to hire, it is difficult to impute to her an invidious

motivation that would be inconsistent with the decision to

hire," especially "when the firing has occurred only a short

time after the hiring"); Burhmaster v. Overnite Transp. Co.,

61 F.3d 461, 464 (6th Cir. 1995) ("An individual who is willing

to hire and promote a person of a certain class is unlikely to

fire them simply because they are a member of that class.").10

Moreover, Dong was not the only one to complain of Water-

house's deficiencies or to recommend her termination.

In short, in light of the circumstances in which they were

made, the statements of Williams and Dong did not add

enough to Waterhouse's proffered evidence to satisfy her

"burden of showing that a reasonable jury could conclude"

that she was terminated on account of her race. Aka, 156

F.3d at 1290.

IV

For the foregoing reasons, we find that the defendants

were entitled to judgment as a matter of law. The district

court's grant of summary judgment in their favor is therefore

Affirmed.

__________

10 See also Williams v. Vitro Servs. Corp., 144 F.3d 1438, 1442

(11th Cir. 1998); Bradley v. Harcourt, Brace & Co., 104 F.3d 267,

270-71 (9th Cir. 1996); Brown v. CSC Logic, Inc., 82 F.3d 651, 658

(5th Cir. 1996); Evans v. Technologies Applications & Serv. Co., 80

F.3d 954, 959 (4th Cir. 1996); EEOC v. Our Lady of the Resurrec-

tion Med. Ctr., 77 F.3d 145, 152 (7th Cir. 1996).