Teneyck, Lillie v. Omni Shoreham Hotel

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 15, 2004 Decided May 7, 2003

No. 03-7022

LILLIE TENEYCK,

APPELLANT

v.

OMNI SHOREHAM HOTEL,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 99cv03315)

William S. Stancil argued pro hac vice for appellant. On

the briefs was Lillie Teneyck, pro se.

Scot A. Hinshaw argued the cause for appellee. With him

on the brief was A. Neal Barkus.

Before: EDWARDS and HENDERSON, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge EDWARDS.

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

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EDWARDS, Circuit Judge: Appellant Lillie Teneyck applied

for a position as a housekeeper at the Omni Shoreham Hotel,

in Washington, D.C. Teneyck alleges that Omni hired her for

the position, but then turned her away before assigning her

any work. Teneyck brought suit in the District Court, claim-

ing that Omni had discriminated against her on the basis of

her race and national origin, in violation of Title VII of the

Civil Rights Act of 1964 (‘‘Title VII’’), 42 U.S.C. § 2000e et

seq. (2000), and on the basis of her age, in violation of the Age

Discrimination in Employment Act of 1967 (‘‘ADEA’’), 29

U.S.C. §§ 621-634 (2000). The suit proceeded to trial and,

after Teneyck rested her case before the jury, Omni moved

for judgment as a matter of law. The District Court granted

judgment to Omni on all claims, holding that Teneyck had

failed to present evidence sufficient to make out a prima facie

case of national-origin, race, or age discrimination.

We affirm the judgment for Omni as to all claims. Ten-

eyck expressly conceded below that she did not offer suffi-

cient evidence to support her national-origin discrimination

claim. That claim was thus waived and is not before us.

Although some aspects of the District Court’s treatment of

Teneyck’s race discrimination claim are problematic, our de

novo review of the record makes clear that Teneyck offered

no evidence indicating that the position for which she applied

remained open or that Omni continued to seek applicants of

her qualifications. Consequently, she failed to establish one

of the key elements of a prima facie case for a Title VII

failure-to-hire claim, as set forth in McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973). Finally, by failing to adduce

any evidence suggesting that she was disadvantaged in favor

of a younger person, Teneyck failed to establish a required

element of a prima facie case of age discrimination under the

ADEA. We find no merit in Teneyck’s claim, raised for the

first time on appeal, that she was denied a fair trial because

of the District Court’s allegedly hurried management of the

trial proceedings.

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I. BACKGROUND

In September 1996, Teneyck applied for a job as a house-

keeper at Omni. The parties agree that Teneyck either was

not hired or was hired but not permitted to work. On

October 2, 1996, Teneyck filed a race and age discrimination

complaint against Omni with the District of Columbia Depart-

ment of Human Rights and Local Business Development

(‘‘Department’’), the predecessor of the Office of Human

Rights. The complaint was cross-filed with the Equal Em-

ployment Opportunity Commission (‘‘EEOC’’). After an in-

vestigation, the Department issued a finding of no probable

cause. The EEOC adopted the Department’s findings and, in

September 1999, issued Teneyck a right-to-sue letter.

Teneyck filed suit against Omni in the District Court on

December 14, 1999, proceeding pro se. The court appointed

counsel for Teneyck, though she ultimately retained her own

counsel. She later filed an amended complaint, asserting

claims of race and national-origin discrimination, under Title

VII, and age discrimination, under the ADEA. After con-

ducting some discovery, Omni moved for summary judgment

on all claims, arguing that Teneyck had failed to make out a

prima facie case of discrimination under Title VII or the

ADEA. The District Court denied Omni’s motion. See Ten-

eyck v. Omni Shoreham Hotel, Civ. Action No. 99-3315

(D.D.C. Sept. 6, 2002). The court found that Teneyck had

established a prima facie case as to all claims, and that there

remained a genuine issue of material fact as to Omni’s

asserted reason for not hiring Teneyck, i.e., that she allegedly

was unable to work Sundays. Id., slip op. at 5-7.

The trial began on Tuesday, January 28, 2003. The judge

informed the jury at the outset of the proceedings that he had

some other obligations to which he would need to attend

during the trial. First, he indicated that he would have to

take a brief recess later that day – which he did – to confer

with a jury that was still deliberating in a criminal trial over

which he was presiding. January 28, 2003 Tr. (‘‘Tr. I’’) at 93,

114. The judge also said that he might have to leave around

4:00 p.m. that day to attend his daughter’s basketball game.

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Id. at 93. As it turned out, the game was canceled and the

court did not recess until 5:06 p.m. Id. at 144-45, 177.

Finally, the judge explained that the trial could not proceed

on Friday, January 31, 2003, because the judge had a medical

procedure scheduled for that day. Id. at 94. If necessary, he

said, the trial could continue into the following week. Id.

Teneyck’s counsel voiced no objection to any of the scheduling

issues raised by the judge.

Before the trial commenced, counsel for Omni told the

judge that one of Omni’s key witnesses was present but

needed to be in Boston, Massachusetts, the following day for

work. Counsel requested to put the witness on the stand on

the first day of trial, so that she would not have to stay

overnight in Washington. Id. at 94-95. Teneyck’s counsel

said that Teneyck’s case-in-chief would require a couple of

hours. Id. at 95. The judge then indicated that he would try

to get Omni’s witness on the stand that day. Id. Teneyck’s

counsel raised no objection.

Teneyck testified on her own behalf as the sole witness in

her case-in-chief. She offered the following testimony rele-

vant to this appeal. Teneyck was 68 years of age at the time

of trial. Id. at 106. In September of 1996, she applied for a

part-time position as a housekeeper with Omni. Id. at 107,

121. At the time she applied for the position, Teneyck was

preparing to retire from her job with the federal government,

where she had worked for over 20 years. Id. at 111, 114, 130.

Teneyck explained that she applied for the position in order

to supplement her retirement income. Id. at 115-16. She

had worked for Omni as a housekeeper from 1965 to 1970,

prior to taking a job with the government. Id. at 106-07, 120.

Teneyck inquired about part-time housekeeping work at

Omni’s personnel office and was directed to a vacancy notice

for a part-time position, which was posted on a bulletin board

in the office. Id. at 108. She filled out an application,

indicating her age as 61, and gave it to a ‘‘clerk.’’ Id. at 108-

09, 128. The clerk was one of two Black women in the office,

both of whom Teneyck characterized as ‘‘nice and friendly.’’

Id. at 121-22. Teneyck understood from her conversation

5

with one of these women that she was hired for the part-time

housekeeping position. Id. at 109. The clerk then called

Omni’s Executive Housekeeper, who met with Teneyck in a

side room in the office for about 20 minutes. Id. at 109-10,

122. Teneyck understood the purpose of this meeting to be

to explain her duties and to tell her when to come to work.

Id. at 109. She offered no testimony as to the race, national

origin, or age of the Executive Housekeeper.

Teneyck described the ensuing interview, as follows: The

Executive Housekeeper asked: ‘‘Why would you want to

clean, want this type of job if you just came from the

Government? Why do you want to do this work?’’ Id. at 110.

Teneyck responded that she had worked as a housekeeper at

Omni before and did not mind the work. Id. The Executive

Housekeeper told Teneyck that the position was full time and

would pay minimum wage and that she would not have

insurance or benefits. Id. at 110-11. Teneyck assured her

that she still wanted the job, and the Executive Housekeeper

instructed Teneyck to call her back the next day to find out

when to start. Id. at 111-12. When she called the next day,

however, the Executive Housekeeper hung up on her. Id. at

112-13, 116. Teneyck called again a couple of hours later and

asked for the Executive Housekeeper, but the Executive

Housekeeper refused to speak with her. Id. Teneyck did

not call Omni again or return to inquire about the position for

which she had applied. Id. at 113, 126-27. She never found

out whether the job remained open or, if so, who Omni hired

for the position. Id. at 120.

Teneyck testified that the Executive Housekeeper never

asked her whether she could work weekends. Id. at 111.

Teneyck stated that she expected to work Saturdays and

Sundays as part of the position, that she had worked Satur-

days and Sundays while working for the government, and

that she was not attending church at the time such that she

would have any problem with working on Sundays. Id. at

111, 114-15, 148. On cross-examination, counsel for Omni

asked whether Teneyck was ‘‘aware that the Omni Shoreham

didn’t hire [her] because they claimed that [she] said [she]

couldn’t work on Sundays.’’ Id. at 128-29. She responded:

6

‘‘That’s not trueTTTT I am aware that they said that, but it is

not true.’’ Id. at 129.

After Teneyck’s testimony on direct, cross-, and redirect

examination was complete, the trial judge asked Teneyck’s

counsel whether he had any other evidence. Counsel re-

sponded that Teneyck was prepared to rest her case except

for rebuttal. Id. at 151. The judge again asked whether

Teneyck was prepared to rest her case-in-chief, and counsel

answered in the affirmative. Id. Omni then moved for

judgment as a matter of law pursuant to Federal Rule of Civil

Procedure 50(a) on the grounds that Teneyck had not pre-

sented any evidence from which a reasonable jury could infer

discrimination and therefore failed to make out a prima facie

case. Id. at 152. The judge heard some argument on the

motion but ‘‘reserved’’ ruling on it until the following day, in

order to allow Omni’s first witness to testify before she

returned to Boston that evening. Id. at 156. The judge at

this point addressed Teneyck’s counsel:

I will have you rest before the jury. I will go ahead

and hear this testimony so we can finish that before

the end of the day with the understanding that I am

still reserving my ruling on whether the Motion to

Dismiss [i.e., the Rule 50(a) motion] is appropriate

and I will hear that tomorrow even though I have

started to hear evidence or testimony from the

Defendant only because we have got a problem, [a]

logistical problem, with the witness’ availability.

Id. Counsel agreed and proceeded to rest Teneyck’s case

before the jury. Id. at 156-57.

Omni’s witness – Omni’s former Executive Housekeeper

Freiweini Kahasay – then took the stand. She explained the

interview process for housekeepers at Omni and then testified

about her interview with Teneyck in September 1996. Id. at

159-64. Kahasay stated that at the time she was ‘‘in desper-

ate need of hiring people for that position.’’ Id. at 164. She

recalled having a 10-minute interview with Teneyck, and

stated that Teneyck had said during the interview that she

could not work Sundays because she had church responsibili-

7

ties. Id. at 164-66. Kahasay explained that she instructed

her colleague in the Human Resources Department, Paula

Nesmith, to mark Teneyck’s application as a ‘‘no,’’ because

Teneyck was unable to work Sundays. Id. at 167. Apart

from this problem, Kahasay said, she would have hired Ten-

eyck. Id. Kahasay did not recall Teneyck calling the follow-

ing day, but said that the normal procedure if an applicant

called would be to refer the applicant to Human Resources.

Id. at 168. Kahasay said she had hired someone for the

position for which Teneyck applied, and that she had hired a

Black woman for at least one of the four part-time housekeep-

ing positions available at the time. Id. at 168-69. After

Teneyck’s counsel cross-examined Kahasay, court was ad-

journed.

The following morning, the District Court heard argument

on the Rule 50(a) motion. Teneyck’s counsel sought to rely

on the testimony of Omni’s lone witness, but the court would

not permit it. The trial judge engaged counsel in the follow-

ing colloquy:

The Court: I only went forward with [the defen-

dant’s] case, where [the testimony in question] came

out, because we were trying to accommodate the

witness.

Mr. Stancil: Well, that is now on the record.

The Court: No. No. No. Remember what I said.

I said I am going to make my ruling based upon –

only because of the time circumstances, I didn’t

address the issue of the motion prior to that witness

testifying. So I don’t think you gain the benefit of

me having let that witness testify to accommodate

the witness so that she could go to Boston. I think

your case rises or falls based upon what you pre-

sented in your case in chief.

Mr. Stancil: All rightTTTT

January 29, 2003 Tr. (‘‘Tr. II’’) at 6. During the ensuing

discussion, Teneyck’s counsel conceded that Teneyck had not

offered sufficient evidence to establish her national-origin

8

claim. Id. at 10. After further argument on the race and

age discrimination claims, the court granted Omni’s motion

for judgment as a matter of law. Id. at 30.

On March 19, 2003, the District Court issued an order and

memorandum opinion to this effect. Teneyck v. Omni Shore-

ham Hotel, Civ. Action No. 99-3315 (D.D.C. Mar. 19, 2003).

The court dismissed the national-origin discrimination claim

on the basis of Teneyck’s counsel’s concession of that claim.

Id., slip op. at 1 n.1. The court granted judgment as a matter

of law to Omni on the race and age discrimination claims,

finding that Teneyck had not proffered sufficient evidence

from which discrimination could be inferred. Id. at 6-9.

Teneyck appealed, proceeding pro se with pro bono assistance

from her trial counsel.

II. DISCUSSION

A. Judgment As a Matter of Law Under Rule 50(a)

Rule 50(a) provides in relevant part that,

[i]f during a trial by jury a party has been fully

heard on an issue and there is no legally sufficient

evidentiary basis for a reasonable jury to find for

that party on that issue, the court may determine

the issue against that party and may grant a motion

for judgment as a matter of lawTTTT

FED. R. CIV. P. 50(a)(1). A Rule 50(a) motion must specify not

only the judgment sought, but also ‘‘the law and the facts on

which the moving party is entitled to the judgment.’’ FED. R.

CIV. P. 50(a)(2).

Rule 50(a) has two primary and interrelated purposes. It

permits the court to avoid the time and expense of trial on

issues or claims that lack a legally sufficient evidentiary basis.

See FED. R. CIV. P. 50 (Advisory Committee Note on the 1991

Amendment); 9 JAMES WM. MOORE ET AL., MOORE’S FEDERAL

PRACTICE § 50.02 (3d ed. 2004). At the same time, a Rule

50(a) motion gives the court and the nonmoving party notice

of any deficiencies in the nonmoving party’s case at a time

when such deficiencies can still be corrected. See id.

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As a general matter, a party has been ‘‘fully heard’’ for

purposes of Rule 50(a) when the party has submitted all of its

evidence on the relevant claim or issue. See 9 MOORE ET AL.,

supra, § 50.20[2]. Accordingly, a defendant may move for

judgment as a matter of law at the close of the plaintiff’s

evidence. Id. The drafters of the 1991 amendment to Rule

50 emphasized, however, that ‘‘[i]n no event’’ should judgment

be granted under Rule 50(a) unless the nonmoving party has

‘‘been apprised of the materiality of the dispositive fact and

been afforded an opportunity to present any available evi-

dence bearing on that fact.’’ FED. R. CIV. P. 50 (Advisory

Committee Note on the 1991 Amendment); see also Waters v.

Young, 100 F.3d 1437, 1441 (9th Cir. 1996). Relatedly, a

party who has rested may move to reopen her case in order

to cure an evidentiary deficiency identified in a Rule 50(a)

motion. See, e.g., Garcia v. Woman’s Hosp. of Tex., 97 F.3d

810, 813-14 (5th Cir. 1996).

We review de novo the grant of judgment as a matter of

law pursuant to Rule 50(a). Borgo v. Goldin, 204 F.3d 251,

254 (D.C. Cir. 2000). In so doing, we must draw all reason-

able inferences from the evidence in favor of the nonmoving

party, and we must not weigh the evidence or assess witness

credibility. See Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 150 (2000); Borgo, 204 F.3d at 254. With these

standards in mind, we turn to the substance of the case

before us.

B. Title VII Claims

1. The Legal Framework Under Title VII

Title VII provides, in relevant part, that it is unlawful for

an employer ‘‘to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any individual

with respect to his compensation, terms, conditions, or privi-

leges of employment, because of such individual’s race TTT or

national origin.’’ 42 U.S.C. § 2000e-2(a)(1). In the absence

of direct evidence of discrimination, disparate-treatment

claims under Title VII are analyzed under the burden-shifting

framework set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). The McDonnell Douglas framework

10

establishes ‘‘an allocation of the burden of production and an

order for the presentation of proof’’ in such cases. St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993).

Under this framework, the plaintiff must first establish, by

a preponderance of the evidence, a ‘‘prima facie case’’ of

discrimination. The burden of doing so is ‘‘not onerous.’’

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253

(1981). McDonnell Douglas identified the paradigmatic ele-

ments of a prima facie case in a Title VII claim involving a

failure to hire. Under this formulation, the plaintiff must

show:

(i) that he belongs to a [protected class]; (ii) that he

applied and was qualified for a job for which the

employer was seeking applicants; (iii) that, despite

his qualifications, he was rejected; and (iv) that

after his rejection, the position remained open and

the employer continued to seek applicants from per-

sons of [the plaintiff’s] qualifications.

McDonnell Douglas, 411 U.S. at 802.

The Supreme Court has emphasized that the McDonnell

Douglas model of the prima facie case is not intended to be

‘‘rigid, mechanized, or ritualistic’’ and that its requirements

can vary depending upon the factual context. Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 512 (2002) (quoting Furnco

Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)). With this

in mind, the court in Stella v. Mineta articulated an alterna-

tive formulation of the Title VII prima facie case, pursuant to

which a plaintiff must establish that ‘‘(1) she is a member of

the protected class; (2) she suffered an adverse employment

action; and (3) the unfavorable action gives rise to an infer-

ence of discrimination.’’ 284 F.3d 135, 145 (D.C. Cir. 2002)

(quoting Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999)).

This alternative formulation is designed to accommodate the

wide variety of employment discrimination claims that extend

beyond the typical ‘‘failure-to-hire’’ situations of the sort

confronted in McDonnell Douglas. However, the formula

articulated in Stella does not supplant McDonnell Douglas’s

paradigmatic elements of a prima facie case. McDonnell

11

Douglas’s formulation of the required elements of a prima

facie case remains the standard in typical failure-to-hire

cases. See, e.g., Morgan v. Fed. Home Loan Mortgage Corp.,

328 F.3d 647, 650 (D.C. Cir.), cert. denied, 124 S. Ct. 325

(2003).

The decision in Stella also held that a plaintiff in a Title VII

case is not required to show that she was disadvantaged in

favor of a person outside of the protected class. 284 F.3d at

146. In other words, in order to make out a prima facie case,

it is not necessary for an African-American plaintiff to show

that she was disadvantaged by the employer’s hiring of a

Caucasian applicant, or for a female plaintiff to show that a

male was hired in her stead. In reaching this result, Stella

adopted the position followed by the vast majority of our

sister circuits that have ruled on this issue. Id. at 145-46.

The employer’s hiring of a person of the same race or sex as

the plaintiff might be relevant in assessing the merits of a

plaintiff’s claim beyond the stage of the prima facie case, but

it is not a factor in the plaintiff’s establishment of a prima

facie case. As the Third Circuit noted in Pivirotto v. Innova-

tive Systems, Inc., 191 F.3d 344 (3d Cir. 1999), even if a

plaintiff is replaced by someone within her class, she could

still demonstrate that the employer treated her worse than

others because she was a member of the protected class. Id.

at 353. For example, a female employee may have been

‘‘treated differently from similarly situated male employees.’’

Id. at 353-54.

McDonnell Douglas principally demands ‘‘that the alleged

discriminatee demonstrate at least that his rejection did not

result from the two most common legitimate reasons on which

an employer might rely to reject a job applicant: an absolute

or relative lack of qualifications or the absence of a vacancy in

the job sought.’’ Int’l Bhd. of Teamsters v. United States,

431 U.S. 324, 358 n.44 (1977). As the Supreme Court has

noted, ‘‘[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. Therefore,

to require a Title VII plaintiff to show that someone outside

of her protected class was hired or promoted in her stead

12

would be to graft an additional element onto the McDonnell

Douglas model of the prima facie case. Stella forecloses this

possibility.

Once a prima facie case has been established, ‘‘the plaintiff

in a Title VII action creates a rebuttable ‘presumption that

the employer unlawfully discriminated against’ him.’’ United

States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,

714 (1983) (quoting Burdine, 450 U.S. at 254). Establishment

of a prima facie case triggers the employer’s burden to

produce admissible evidence that, if believed, would establish

that the employer’s action was motivated by a legitimate,

nondiscriminatory reason. Burdine, 450 U.S. at 254-56. The

employer’s burden is one of production, not persuasion. Id.

When the employer meets this burden, ‘‘the McDonnell

Douglas framework – with its presumptions and burdens –

disappear[s], and the sole remaining issue [i]s discrimination

vel non.’’ Reeves, 530 U.S. at 142-43 (internal quotation

marks and citations omitted). The plaintiff at this point must

be given an opportunity to prove that the employer’s pro-

fessed reason for its actions is, in fact, a pretext for discrimi-

nation. If the factfinder rejects the defendant’s proffered

explanation, this permits – but does not compel – the factfin-

der ‘‘to infer the ultimate fact of intentional discrimination.’’

St. Mary’s Honor Ctr., 509 U.S. at 511.

The ultimate question, once the employer has met its

evidentiary burden, is whether intentional discrimination may

be inferred from all the evidence before the trier of fact.

This includes ‘‘(1) the plaintiff’s prima facie case; (2) any

evidence the plaintiff presents to attack the employer’s prof-

fered explanations for its actions; and (3) any further evi-

dence of discrimination that may be available to the plaintiff

(such as independent evidence of discriminatory statements

or attitudes on the part of the employer).’’ Dunaway v. Int’l

Bhd. of Teamsters, 310 F.3d 758, 763 (D.C. Cir. 2002) (quoting

Waterhouse v. Dist. of Columbia, 298 F.3d 989, 993 (D.C. Cir.

2002)). However, if the plaintiff establishes the elements of a

prima facie case, and the defendant remains silent or other-

wise fails to meet its burden of production, judgment must be

13

rendered for the plaintiff. Burdine, 450 U.S. at 254; see also

St. Mary’s Honor Ctr., 509 U.S. at 510 n.3.

2. Application of the Legal Framework to the Facts of

this Case

Teneyck expressly conceded below that she had not estab-

lished a prima facie case of national-origin discrimination, so

that claim is not before this court on appeal. What is at issue

here is whether Teneyck met her initial burden of establish-

ing a prima facie case of race discrimination under Title VII.

Because Omni moved for judgment as a matter of law at the

close of Teneyck’s case-in-chief – before Omni presented any

evidence of its own – we are not confronted with the ultimate

question of whether Omni intentionally discriminated against

Teneyck. The precise question before us, in reviewing the

District Court’s grant of judgment as a matter of law, is

whether Teneyck provided a ‘‘legally sufficient evidentiary

basis for a reasonable jury to find’’ that she had established

the elements of a prima facie case. See FED. R. CIV. P. 50(a).

We find that she did not.

It is undisputed that Teneyck offered testimony on the

basis of which a reasonable jury could find the first three

elements of the McDonnell Douglas prima facie case. She is

a member of a protected class: While she did not testify as to

her race, the District Court noted, and Omni concedes, that

the jury could see that she is Black. Tr. II at 13; Appellee’s

Br. at 9 & n.3. As Omni likewise concedes, Teneyck testified

that she applied for a housekeeping position for which she

was qualified and that she was turned away before being

given any work. Tr. I at 109-13; Appellee’s Br. at 13.

Teneyck failed, however, to provide any evidence establish-

ing the fourth McDonnell Douglas element: that the position

remained open after Teneyck was turned away and that Omni

continued to seek applicants of her qualifications. Teneyck

testified that, after the Executive Housekeeper refused to

speak to her when Teneyck called to be assigned work,

Teneyck never made any further attempt to contact Omni

about the position. Tr. I at 126-27. Teneyck offered no

testimony as to whether the position remained open or wheth-

14

er Omni continued to seek applicants of her qualifications.

She stated only that she never found out who Omni hired for

the position. Id. at 120. By not offering any evidence in

support of the fourth McDonnell Douglas element, Teneyck

failed to eliminate one of the most common legitimate nondis-

criminatory reasons for a failure to hire: the absence of a

vacancy. See Stella, 284 F.3d at 145.

In arguing the Rule 50(a) motion before the District Court,

counsel for Omni clearly identified this specific deficiency as

one of the grounds upon which judgment as a matter of law

for Omni was warranted. Tr. II at 16-17. Teneyck’s counsel

made no attempt to move to reopen Teneyck’s case-in-chief so

as to provide evidence on this or any other issue. According-

ly, Omni was entitled to judgment as a matter of law based on

the evidence put forward in Teneyck’s case-in-chief.

Having reached this conclusion, we note that the District

Court did not appear to base its judgment on the absence of

evidence establishing the fourth McDonnell Douglas element.

Indeed, the District Court’s treatment of this issue is some-

what perplexing, so some clarification of the law is in order.

Without reference to the specific McDonnell Douglas ele-

ments, the District Court noted in dicta that ‘‘at most, Ten-

eyck’s testimony eliminated ‘the two most common legitimate

reasons on which an employer might rely to reject a job

applicant: an absolute or relative lack of qualifications or the

absence of a vacancy in the job sought.’ ’’ Teneyck, slip op. at

6 (quoting Int’l Bhd. of Teamsters, 431 U.S. at 358 n.44). The

District Court nevertheless concluded that Teneyck had of-

fered no evidence from which it could be inferred that she

was discriminated against because of her race. Id. at 7.

These statements, taken in conjunction, reveal a misconcep-

tion of the requisite elements of a prima facie case and of

Teneyck’s burden at this stage of the proceedings. If Ten-

eyck had shown that Omni kept the position open and contin-

ued to seek applicants of her qualifications, then it would be

proper to conclude that there was a continuing vacancy.

This, along with the undisputed evidence as to the first three

McDonnell Douglas elements, would have sufficed to estab-

15

lish a prima facie case, triggering a legally mandatory, rebut-

table presumption of discrimination.

Establishment of the elements of a prima facie case ‘‘raises

an inference of discrimination TTT because we presume [the

employer’s] acts, if otherwise unexplained, are more likely

than not based on the consideration of impermissible factors.’’

Burdine, 450 U.S. at 254 (quoting Furnco Constr. Corp., 438

U.S. at 577) (emphasis added). The issue of whether the

plaintiff has established a prima facie case, therefore, is quite

distinct from the ultimate inquiry as to ‘‘discrimination vel

non’’ required after the defendant has met its burden of

production. Here, Omni moved for judgment as a matter of

law at the close of Teneyck’s case-in-chief, prior to offering

any evidence of its own. At this stage, the factfinder is not

called upon to determine whether, despite the plaintiff’s suc-

cessful establishment of the McDonnell Douglas elements of

a prima facie case, discrimination can be inferred. Rather,

establishment of the requisite elements – in the absence of

any rebuttal evidence from the employer – creates an infer-

ence of discrimination as a matter of law.

The District Court’s opinion goes on to suggest ways in

which Teneyck might have successfully established a prima

facie case:

Teneyck might have presented evidence, for exam-

ple, to show that defendant hired a person who is

not black TTT to fill the housekeeper position. She

might have presented evidence to show the racial

composition TTT of defendant’s employees. She

could have called defendant’s employees as wit-

nesses in her case-in-chief and set up the conflict [as

to the defendant’s professed legitimate nondiscrimi-

natory reason for its actions]. She could have

sought other evidence of discriminatory statements

or improper attitudes of defendant’s employees or

officials.

Teneyck, slip op. at 9. This statement is not based on an

accurate assessment of the law. The evidence cited by the

District Court might in some cases be relevant to the estab-

16

lishment of a prima facie case, and it certainly could bear on

the ultimate inquiry as to discrimination vel non. But we

reject any implication that such evidence is required to estab-

lish a prima facie case. Establishment of the four McDonnell

Douglas elements without more is sufficient. In particular,

the suggestion that, in order to make out her prima facie

case, Teneyck ought to have provided evidence that Omni

hired someone of a different race for the position for which

she applied is wrong as a matter of law. Stella clearly held

that a Title VII plaintiff is not required to show that she was

rejected in favor of someone outside her protected class. 284

F.3d at 145.

As noted above, although the foregoing aspects of the

District Court’s treatment of Teneyck’s race discrimination

claim are problematic, our de novo review of the record

makes clear that Teneyck offered no evidence indicating that

the position for which she applied remained open or that

Omni continued to seek applicants of her qualifications.

Therefore, we conclude that Omni is correct in its view that a

motion for judgment as a matter of law was proper in light of

Teneyck’s failure to make out a prima facie case.

3. The Timing of the District Court’s Disposition of the

Rule 50(a) Motion

There remains a procedural question as to the District

Court’s handling of the Rule 50(a) motion. Omni made its

motion at the close of Teneyck’s case-in-chief on the afternoon

of the first day of the trial. The court ‘‘reserved’’ ruling on

the motion until the morning of the following day, allowing

Omni to put its key witness – former Executive Housekeeper

Freiweini Kahasay – on the stand first. This arrangement

was intended to permit Kahasay to return to Boston on the

evening of the first day of trial in order to be at work the

next day. When the District Court ruled on the Rule 50(a)

motion the following morning, the court refused to consider

Kahasay’s testimony.

Under normal circumstances,

17

Rule 50(a) does not authorize a trial judge, after the

defense has presented its case (in whole or in part),

to revisit, and grant, a defense motion for judgment

as a matter of law made at the close of the plaintiff’s

case without considering, in addition to the evidence

presented in the plaintiff’s case, the evidence pre-

sented by the defense.

Johnson Enters. of Jacksonville, Inc. v. FPL Group, Inc., 162

F.3d 1290, 1305 n.31 (11th Cir. 1998). Moreover, as a general

rule the court looks to ‘‘all of the evidence in the record’’

when deciding a Rule 50(a) motion. See Reeves, 530 U.S. at

150. This rule assumes particular importance in the context

of the McDonnell Douglas burden-shifting framework. The

Supreme Court held in Aikens that ‘‘[w]here the defendant

has done everything that would be required of him if the

plaintiff had made out a prima facie case, whether the plain-

tiff really did so is no longer relevant. The district court has

before it all the evidence it needs to decide whether ‘the

defendant intentionally discriminated against the plaintiff.’ ’’

460 U.S. at 715 (quoting Burdine, 450 U.S. at 253). In other

words, once the defendant has responded with rebuttal evi-

dence, the factfinder normally proceeds to the ultimate issue

on the merits to determine whether the employer intentional-

ly discriminated against the plaintiff.

Unlike Aikens, this case was not ‘‘fully tried on the merits.’’

See id. at 714. However, Omni’s rebuttal evidence was part

of the record when the court granted the Rule 50(a) motion.

And Omni’s evidence established that it continued to seek

applicants of Teneyck’s qualifications and ultimately hired

someone else for the position, thus indicating that the fourth

and final element of a prima facie case under McDonnell

Douglas was not really at issue. Yet, the District Court’s

reservation of its ruling on the motion required it to decide

the motion based solely on the plaintiff’s testimony.

We are now in the curious position of granting judgment to

Omni based on a deficiency in Teneyck’s case-in-chief that is

directly addressed elsewhere in the record. This is not to say

that Teneyck did not bear the burden of establishing her

18

prima facie case. Nor is it to suggest that Teneyck is likely

to have won her case had she met this burden. Regardless,

we think the District Court’s decision to admit Kahasay’s

testimony to the record while simultaneously excluding it

from consideration created a situation that normally should

be avoided.

We cannot fault the District Court in this case, however.

The circumstances here were unusual: The District Court

reserved its ruling to accommodate a logistical difficulty and

did so only for one witness. Furthermore, Teneyck failed to

challenge the court’s handling of the Rule 50(a) motion either

before the District Court or on appeal. Teneyck offered no

objection to the District Court’s initial decision to ‘‘reserve’’

its ruling on the motion until after Kahasay’s testimony, or to

the court’s later reaffirmation of its decision to rule on the

motion based solely on the evidence in Teneyck’s case-in-

chief. On appeal, Teneyck has not raised any claim related to

the procedure.

C. ADEA Claim

In language closely tracking that of Title VII, the ADEA

makes it unlawful for an employer ‘‘to fail or refuse to hire or

to discharge any individual [over 40 years of age] or other-

wise discriminate against any [such] individual with respect to

his compensation, terms, conditions, or privileges of employ-

ment, because of such individual’s age.’’ 29 U.S.C.

§§ 623(a)(1), 631(a). As with Title VII, in the absence of

direct evidence of discrimination, disparate-treatment claims

under the ADEA are analyzed under the McDonnell Douglas

burden-shifting framework. See, e.g., Hall v. Giant Food,

Inc., 175 F.3d 1074, 1077 (D.C. Cir. 1999).

To establish a prima facie case under the ADEA, for a

claim involving a failure to hire, the plaintiff must demon-

strate that (1) she is a member of the protected class (i.e.,

over 40 years of age); (2) she was qualified for the position

for which she applied; (3) she was not hired; and (4) she was

disadvantaged in favor of a younger person. Cuddy v. Car-

men, 694 F.2d 853, 857 (D.C. Cir. 1982); see also Forman v.

Small, 271 F.3d 285, 292 (D.C. Cir. 2001), cert. denied, 536

19

U.S. 958 (2002); Hall, 175 F.3d at 1077; Paquin v. Fed. Nat’l

Mortgage Ass’n, 119 F.3d 23, 26 (D.C. Cir. 1997). We note

parenthetically that in O’Connor v. Consolidated Coin Cater-

ers Corp., 517 U.S. 308 (1996), the Supreme Court held that

an ADEA plaintiff need not demonstrate that she was disad-

vantaged in favor of a person outside the protected class, i.e.

younger than 40. Id. at 312. The Court observed that

evidence that the plaintiff was disadvantaged in favor of a

‘‘substantially younger’’ person – regardless of whether that

person was under 40 years of age – would be a basis from

which to infer age discrimination. Id. at 313.

It is undisputed that Teneyck was over 40 years of age at

the time she applied for the job and that she was rejected for

a position for which she was qualified. However, Teneyck

neglected to offer any evidence from which it could be

inferred that she was disadvantaged in favor of a younger

person, so she failed to make out one of the required ele-

ments of a prima facie case of age discrimination. According-

ly, Omni was entitled to judgment as a matter of law on this

claim as well.

D. Administration of Trial Proceedings

In addition to her challenge to the grant of Omni’s Rule

50(a) motion, Teneyck claims on appeal that she was denied

an ‘‘orderly, fair, and efficient’’ trial because of the trial

judge’s administration of the trial proceedings. The grava-

men of this claim is that the judge was preoccupied with a

number of ‘‘competing demands’’ on his time, and that he was

therefore ‘‘inclined to jettison or to inadvertently sabotage’’

the trial. Appellant’s Br. at 10. Teneyck identifies four

purported ‘‘competing demands’’: (1) the criminal trial over

which the judge was presiding and in which the jury was still

deliberating; (2) the judge’s daughter’s basketball game orig-

inally scheduled for the evening of the first day of trial (which

was ultimately canceled); (3) the judge’s upcoming medical

procedure; and (4) the need to get Omni’s first witness on the

stand on the first day of the trial. Id.

We find no merit in this claim. The only specific actions of

the District Court cited by Teneyck are the judge’s decision

20

to take a brief recess to address the jury in the ongoing

criminal trial and his decision to allow Omni’s witness to take

the stand on the first day of trial without having given

Teneyck’s counsel notice until the morning of that day. Ten-

eyck failed to raise any objection to either of these decisions

at trial and accordingly they are not properly before us on

appeal. See, e.g., Martini v. Fed. Nat’l Mortgage Ass’n, 178

F.3d 1336, 1340 (D.C. Cir. 1999) (citing Hooks v. Wash.

Sheraton Corp., 578 F.2d 313, 316-17 (D.C. Cir. 1977)). In

any event, we see no indication that the District Court abused

its discretion to manage the trial proceedings. Nothing in

the record suggests that the proceedings were conducted in a

hurried or disorderly manner, that Teneyck had inadequate

time to present her case or to cross-examine Omni’s witness,

or that she was otherwise prejudiced by the conduct on which

her claim is based. Certainly nothing in the conduct Teneyck

identifies remotely approaches plain error.

III. CONCLUSION

For the reasons set forth above, we affirm the District

Court’s grant of judgment as a matter of law in favor of

Omni.