Murray, Lucy v. Gilmore, David

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 16, 2005 Decided May 6, 2005

No. 04-7027

LUCY MURRAY,

APPELLANT

v.

DAVID GILMORE, AS RECEIVER, DISTRICT OF COLUMBIA

HOUSING AUTHORITY AND IN HIS INDIVIDUAL CAPACITY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 99cv00361)

Veronice A. Holt argued the cause and filed the briefs for

appellant.

Mona Lyons argued the cause and filed the briefs for

appellee.

Before: ROGERS, TATEL, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: Appellant, an employee of the D.C.

Housing Authority, ostensibly lost her job as part of a “reduction

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in force” undertaken by the Authority’s court-appointed

receiver. After unsuccessfully pursuing her administrative

remedies, she sued the receiver in his personal and official

capacities, alleging wrongful termination in violation of the

District’s Comprehensive Merit Personnel Act, race

discrimination in violation of Title VII and 42 U.S.C. § 1981,

sex discrimination in violation of Title VII, and deprivation of

due process in violation of 42 U.S.C. § 1983. The district court

granted summary judgment to the receiver on all claims except

the due process one against him in his official capacity, which

the court dismissed without prejudice. Following the district

court’s denial of her motion to reinstate the due process claim,

appellant filed this appeal. We now reverse the grant of

summary judgment to the receiver with regard to the Title VII

sex discrimination claim against him in his official capacity, but

affirm in all other respects.

I.

In 1995, under the auspices of Judge Graae of the D.C.

Superior Court, the D.C. Department of Public and Assisted

Housing entered into a settlement agreement to resolve a lawsuit

brought by plaintiffs seeking structural reform of the agency.

Known as the Pearson Order, the agreement provided that the

court would appoint a receiver to run the agency for at least

three years and gave the receiver significant power to restructure

the agency’s personnel. Pearson v. Kelly, No. 92-14030 (D.C.

Super. Ct. May 18, 1995). In part, the order provided:

As to employees who are not subject to collective

bargaining agreements, during the transition from the start-

up of the receivership to the implementation of such

personnel policies as the receiver shall institute, such

employees’ rights as to benefits, compensation, and

termination (except as stated herein) shall be governed by

the Comprehensive Merit Personnel Act, D.C. Code § 1-

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601 et. seq. Upon the establishment by the receiver of

published personnel policies for the governing of

employees who are not subject to collective bargaining

agreements, these employees shall be subject solely to the

personnel policies the receiver shall institute governing the

employees’ benefits, compensation and termination. The

personnel policies established by the receiver for employees

who are neither at will employees, employees in their

probationary period, nor subject to collective bargaining

agreements (“permanent managerial civil service

employees”), shall provide that these employees shall not

be terminated except for cause or misconduct or for non-

performance of duty or due to abolition of their position (as

these terms are defined by the receiver in the published

personnel policies).

Judge Graae appointed appellee David Gilmore as receiver.

For one of his first moves, Gilmore hired a consulting group to

evaluate the importance of positions in the department—by then

renamed the “Housing Authority”—with annual salaries over

$48,000.

Appellant Lucy Murray, an African-American woman, held

one such management position: Public Information

Officer/Chief of the Office of Public Information. According to

her job description, she was responsible for supervising the

Office of Public Information, developing the Authority’s public

information strategy, acting as its principal advisor on public

affairs, serving as its official spokesperson, and carrying out

other responsibilities related to these tasks. The consultants

determined that her position was “essential,” explaining that “it

would appear that any wholesale turn-around of the agency may

require the function and resources of the Office of Public

Information. Accordingly, it may be necessary to retain the

position of Visual and Public Information Officer.” Although

Gilmore did not know Murray personally, he associated

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her—erroneously, as he now seems to concede—with a bad

public relations incident the agency had experienced before he

came on board.

In September 1995, Gilmore created a new

position—Director of Public Affairs—and hired Arthur Jones,

an African-American male, to fill it. The parties debate whether

Gilmore publicized this position prior to hiring Jones, but

Gilmore acknowledged at his deposition that he considered only

Jones for the position. According to the new position’s job

description, Jones was responsible for supervising the Office of

Public Affairs (which had not existed prior to his appointment

and of which he was the only member), developing the

Authority’s public information program, advising the receiver

on public affairs, serving as the Authority’s official

spokesperson, and undertaking related tasks. Though Jones had

no housing experience, he had an extensive press background,

having served as a Deputy White House Press Secretary and as

the City of Boston’s Director of Communications.

Several months later, in December 1995, Gilmore issued a

personnel manual which provided that the “receiver may reduce

the size of the workforce, including by the abolition of positions,

when the receiver determines that such action is necessary or

prudent.” Pursuant to the Pearson Order, the manual had the

effect of terminating the application of D.C.’s Comprehensive

Merit Personnel Act to Housing Authority employees. See

supra at 2-3.

The next month, Gilmore proposed a reduction-in-force

(RIF). If followed, the RIF would have eliminated sixteen

positions filled by eight African-American men (of whose

positions the consultants ranked four as critical, one as essential,

two as non-essential, and one as not needed), four African-

American women, including Murray (all of whose positions

were ranked as essential), two white men (with one position

ranked essential and the other non-essential), and two white

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women (with one position ranked non-essential and the other

unnecessary). Gilmore’s actual RIF, however, departed from

this proposal. Ultimately, some positions were not eliminated

and of the positions that were, most employees who had held

these positions either accepted different jobs within the agency

or took voluntary retirement. Only three employees faced other

outcomes. An African-American man (whose position was

ranked by the consultants as not needed) moved to a job at

another agency, and Murray and another African-American

woman (both of whose positions were ranked essential) were

involuntarily terminated.

Twelve days after Murray’s departure, Gilmore changed

Jones’s job title from Director of Public Affairs to Director of

Public Information. A few months after that, Gilmore added a

new employee—an “Information Management Specialist”—to

the Office of Public Information.

Under the personnel manual, terminated employees could

demand a hearing before an examiner, who would make a

recommendation to the receiver, who in turn had the final say.

Invoking this process, Murray promptly requested a hearing—a

request she reiterated in letters sent virtually every month until

the summer of 1997 when, roughly a year and a half after her

firing, she finally received her hearing. In support of her

wrongful termination claim, she argued that Gilmore trumped up

the RIF to justify her firing. Gilmore never actually eliminated

her position, Murray claimed, but instead simply renamed it and

gave it to Jones, letting her go shortly thereafter. At the hearing,

a Housing Authority representative acknowledged that Jones’s

and Murray’s positions were “functionally equivalent”: “they

both had the reporting to the head of the Agency”; “[t]hey both

had overall responsibility for the Office of Public Information”;

“they both were responsible for supervising the employees in

that office”; and “[f]inally, they each were the chief

spokesperson.”

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In summer 1998, a year after the hearing, the examiner

issued her recommendation, concluding that Gilmore had

functionally replaced Murray with Jones and thus that “the RIF

as it affected Murray was a reorganization only on paper and

was only a veil for her discharge.” The examiner recommended

Murray’s reinstatement with back pay. Two years later, in

September 2000, Gilmore rejected this recommendation and

instead upheld Murray’s termination.

Perhaps because her internal appeal was progressing slowly,

Murray had meanwhile filed a complaint alleging race and sex

discrimination with the D.C. Department of Human Rights and

Local Business Development. The Department found probable

cause for sex discrimination, but since an African American had

replaced Murray it found no cause for race discrimination.

Murray also sued Gilmore in the U.S. District Court for the

District of Columbia. Brought against Gilmore in his

representative and individual capacities, her amended complaint

alleged violations of Title VII, 42 U.S.C. § 2000e-2; 42 U.S.C.

§ 1981; D.C.’s Comprehensive Merit Personnel Act, D.C. Code

§§ 1-601 to 1-636; and, pursuant to 42 U.S.C. § 1983, the Fifth

Amendment’s Due Process Clause.

The parties cross-moved for summary judgment. The

district court denied Murray’s motion and, in fall 2002, granted

Gilmore’s motion except with regard to Murray’s due process

claim against Gilmore in his official capacity. Murray v.

Gilmore, 226 F. Supp. 2d 179 (D.D.C. 2002), as amended, 231

F. Supp. 2d 82 (D.D.C. 2002). Finding Murray’s basis for the

due process claim difficult to “glean,” the court “dismissed [that

claim] without prejudice subject to reconsideration at such time

as plaintiff is able to clearly identify legal and factual bases for

proceeding on this claim,” id. at 190, and ordered the case

“taken off the active calendar of the Court,” id. at 191. Murray

moved to reinstate the due process claim, but the court denied

the motion in early 2004, concluding that “plaintiff merely

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restate[d] her factual allegations” and offered no new legal

theory. Murray v. Gilmore, No. 99-361 (D.D.C. Feb. 22, 2004).

Murray now appeals.

II.

As an initial matter, Gilmore questions our jurisdiction to

review the issues decided in the district court’s 2002 summary

judgment order. According to Gilmore, the 2002 order

constituted a final order for purposes of 28 U.S.C. § 1291, and

Murray’s appeal was therefore untimely because she filed it

after the 2004 denial of reinstatement. See Fed. R. App. P. 3;

Fed. R. App. P. 4 (providing that if the district court issues an

appealable final order, a party must timely appeal that order).

Murray sees the 2002 order quite differently. That order was not

a final appealable order, she argues, because rather than

signaling the “final disposition of the case,” see Franklin v.

District of Columbia, 163 F.3d 625, 629 (D.C. Cir. 1998)

(noting that appeal “is to be deferred until final disposition of

the case”), it left her due process claim unresolved. Gilmore

responds that the court gave a “final disposition” of the due

process claim by dismissing it without prejudice. We agree with

Murray.

Under Ciralsky v. CIA, 355 F.3d 661 (D.C. Cir. 2004),

dismissal of an action without prejudice is a final disposition but

dismissal of a complaint without prejudice typically isn’t. See

id. at 666-67 (determining that the district court had dismissed

the action rather than just the complaint). Here, the district

court’s decision to “dismiss [the due process claim] without

prejudice subject to reconsideration,” Murray, 226 F. Supp. 2d

at 190, was at most a dismissal of the due process portion of the

complaint. Had the court intended to dismiss the action, it

would have done more than just remove the case from its active

calendar; it might, for example, have designated the 2002 order

as “final and appealable,” as did the Ciralsky district court, see

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Ciralsky, 355 F.3d at 667.

Gilmore also suggests that even if the district court

dismissed only the due process claim (rather than the action), the

dismissal was final because Murray could not refile it due to a

lapsed statute of limitations. Cf. id. at 666 n.1. But the district

court plainly contemplated that Murray could reinstate her claim

“at such time as plaintiff is able to clearly identify legal and

factual bases” for her argument, Murray, 226 F. Supp. 2d at 190;

see also Murray, No. 99-361 (D.D.C. Feb. 22, 2004), leaving

Gilmore on notice not just of the claim, but of its continued

viability as well. The district court’s “dismissal” was thus akin

to a grant of leave to amend under Federal Rule of Civil

Procedure 15(c), which permits such amendments to relate back

to the original filing date for statute-of-limitations purposes. Cf.

6A Wright, Miller & Kane, Federal Practice and Procedure §

1508 (2d. ed. 1990) (noting that “the policy underlying the

statute of limitations is in no way compromised” by permitting

amendment if “the defendant is given sufficient notice of the

nature of the claim being asserted at the outset of the action”).

Because the statute of limitations thus posed no bar to Murray’s

refiling, the 2002 order was not a final, appealable order, and

Murray properly waited until after the 2004 denial of

reinstatement to appeal.

III.

Turning to the merits of Murray’s race and sex

discrimination claims, we review the district court’s grant of

summary judgment de novo, viewing the evidence in the light

most favorable to Murray, and will affirm only if no reasonable

jury could find in her favor. E.g., Dunaway v. Int’l Bhd. of

Teamsters, 310 F.3d 758, 761 (D.C. Cir. 2002). To determine

whether a reasonable jury could find in Murray’s favor on her

Title VII and 42 U.S.C. § 1981 claims, we use the familiar

McDonnell Douglas framework. Murray must first make out a

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prima facie case. See McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802 (1973). As Gilmore concedes, she has done so:

“(i) at the time [s]he was fired, [s]he was a member of the class

protected by” Title VII and section 1983; “(ii) [s]he was

otherwise qualified for the position” of Officer/Chief of the

Office of Public Information; “(iii) [s]he was discharged by

respondent,” see Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 142 (2000); and (iv) as we discuss later, evidence

suggests that another employee replaced her, see Stella v.

Mineta, 284 F.3d 135, 145-46 (D.C. Cir. 2002) (holding that a

plaintiff need not show as part of her prima facie case that her

replacement came from outside her protected class). This prima

facie showing shifts the burden of production to Gilmore,

requiring that he proffer a legitimate, nondiscriminatory reason

for firing Murray. See McDonnell Douglas Corp., 411 U.S. at

802. Satisfying that burden, he claims he laid her off pursuant

to a bona fide RIF. At this point, then, the McDonnell Douglas

framework disappears, and we must decide whether a reasonable

jury could infer intentional discrimination from “(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).” Waterhouse v. District of Columbia, 298 F.3d 989,

992-93 (D.C. Cir. 2002) (quoting Aka v. Washington Hosp. Ctr.,

156 F.3d 1284, 1289 (D.C. Cir. 1998) (en banc)). This boils

down to two inquiries: could a reasonable jury infer that the

employer’s given explanation was pretextual, and, if so, could

the jury infer that this pretext shielded discriminatory motives?

On the first inquiry, Murray contends with respect to her

section 1981 claim that principles of collateral estoppel prevent

reconsideration of the hearing examiner’s conclusions, leaving

us bound by the examiner’s finding that the RIF justification

was pretext. See United States v. Utah Constr. & Mining Co.,

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384 U.S. 394, 421-22 (1966) (holding that courts can give

preclusive effect to certain administrative proceedings); but see

Univ. of Tennessee v. Elliot, 478 U.S. 788 (1986) (holding that

no such preclusion occurs in the Title VII context). But while

preclusive effect may sometimes attach to administrative

proceedings, we see no reason why it should attach to

proceedings where the examiner may only make

“recommendations” and lacks power to issue binding judgments.

Cf. Restatement (Second) of Judgments § 27 (1982) (requiring

“valid and final judgment” for issue preclusion). Moreover,

Gilmore’s role as the final decision-maker undoubtedly reduced

his incentive to litigate the case fully, not only by limiting his

concerns about the outcome of the administrative process but

also by giving him cause to suppose that should preclusion

attach at all, it might attach to his final administrative decision

rather than the examiner’s rejected recommendation. See id. §

28(c) (stating that issue preclusion should not apply where “the

party sought to be precluded . . . did not have an adequate

opportunity or incentive to obtain a full and fair adjudication in

the initial action”); see also id. § 27 cmt. o (noting that if a

decision below is reversed on appeal, the appellate “judgment is

conclusive between the parties” in later litigation).

We nonetheless agree with Murray that a reasonable jury

could find Gilmore’s proffered explanation pretextual. Murray

offers plentiful evidence from which a jury could conclude that

rather than functionally eliminating the position of Officer/Chief

of Public Information, Gilmore simply gave the position a new

title and tapped Jones to hold it. Not only are the job

descriptions of the two positions quite similar, but a Housing

Authority representative testified at the administrative hearing

that the positions were “functionally equivalent.” Indeed,

immediately after Murray’s departure, Jones’s title changed

from “Director of Public Affairs” to “Director of Public

Information.” Standing alone, such evidence easily creates a

material issue of fact as to whether Gilmore’s justification was

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pretextual. At oral argument, counsel for Gilmore

acknowledged as much. After counsel stated, “I concede that .

. . obviously a Director of Public Relations and a Public

Information Officer have comparable, dual, functionally

equivalent, overlapping responsibilities,” the court inquired,

“And from that . . . a reasonable jury could conclude that this

was pretext?” “I believe that’s correct,” counsel responded.

Bolstering an already adequate case, Murray points out that

Gilmore not only increased the budget of the Department of

Public Information, but also added another employee after

Murray left—two facts that support an inference that Gilmore

had no need to undertake an RIF within that Department in the

first place.

Of course, that a jury could infer pretext does not always

mean that a jury could infer race or sex discrimination. As we

stated in Aka v. Washington Hospital Center, 156 F.3d 1284,

1291 (D.C. Cir. 1998) (en banc), “in some instances . . . the fact

that there are material questions as to whether the employer has

given the real explanation will not suffice to support an

inference of discrimination.” We gave two examples of such

situations: where “the plaintiff calls the employer’s explanation

into question, but does so in a way that conclusively

demonstrates that the real explanation for the employer’s

behavior is not discrimination, but some other motivation” and

where “the plaintiff has created only a weak issue of material

fact as to whether the employer’s explanation is untrue and there

is abundant independent evidence in the record that no

discrimination has occurred.” Id. The Supreme Court endorsed

Aka’s approach in Reeves v. Sanderson Plumbing Products. See

530 U.S. at 148 (using the same examples in explaining when a

jury could not infer discrimination solely from a plaintiff’s

prima facie case and showing of pretext). The Court explained,

Whether judgment as a matter of law is appropriate in any

particular case will depend on a number of factors. Those

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include the strength of the plaintiff’s prima facie case, the

probative value of the proof that the employer’s explanation

is false, and any other evidence that supports the

employer’s case and that properly may be considered on a

motion for judgment as a matter of law.

Id. at 148-49.

Murray’s two claims—race discrimination and sex

discrimination—fare differently under this standard. Her race

discrimination claim, like the exceptions given in Reeves and

Aka, fails because even assuming pretext, Gilmore replaced

Murray, an African American, with Jones, also an African

American. While Murray can make out a prima facie case

despite such parity, see Stella, 284 F.3d at 145-46, a replacement

within the same protected class cuts strongly against any

inference of discrimination, see Brown v. Brody, 199 F.3d 446,

451 (D.C. Cir. 1999) (noting that a sex discrimination claim

based on denial of a lateral transfer “would be baseless because

two of the three employees selected for that transfer were

women”); cf. Rand v. CF Indus., 42 F.3d 1139, 1147 (7th Cir.

1994) (where same decision-maker hired and fired plaintiff

within span of two years, a jury could not draw an inference that

he engaged in age discrimination absent specific evidence of

animus); Lowe v. J.B. Hunt Transport, Inc., 963 F.2d 173, 174-

75 (8th Cir. 1992) (similar).

This does not mean that a jury could never infer

discrimination where the plaintiff was replaced by a member of

the same protected class. For example, suppose an employer

fired ten African-American employees for pretextual reasons

and replaced them with nine whites and one African American.

Under these circumstances, the employee replaced by the

African American could most likely survive summary judgment

on a race discrimination claim. But Murray offers no such

evidence. She does point out that most “critical” or “essential”

positions on the proposed RIF list were occupied by African

13

Americans, but we doubt a jury could find that particularly

persuasive absent evidence showing how many white and

African-American employees held “critical” or “essential”

positions in the agency as a whole. Similarly, the fact that the

only two employees from the proposed RIF list who were

involuntarily terminated were African Americans carries little

weight given that three-fourths of the listed RIF candidates were

African Americans, a proportion not challenged by Murray as

itself discriminatory. Because we think no reasonable jury could

rely on this evidence to infer race discrimination given Murray’s

replacement by an African American, we will affirm the district

court’s dismissal of her Title VII and section 1981 race

discrimination claims.

We reach a different conclusion with respect to Murray’s

Title VII sex discrimination claim. First, because her

replacement was a man, her prima facie case is stronger on that

claim. See Reeves, 530 U.S. at 148-49. Second, “the proof that

the employer’s explanation is false,” id. at 149, was strong, and

we see no circumstances like those hypothesized in Aka and

Reeves that would preclude a rational factfinder from inferring

discrimination from pretext. While the pretext may conceal

other motives—such as that Gilmore thought the agency needed

a better spokesperson or distrusted Murray due to his inaccurate

belief that she had caused a prior press debacle—nothing in the

record demonstrates this anywhere near as “conclusively,” see

Aka, 156 F.3d at 1291; Reeves, 530 U.S. at 148, as in the Eighth

Circuit decision cited in Aka, where the plaintiff himself had

argued “that in fact the real reason he had been discharged was

that he had discovered that his firm was not in compliance with

Securities and Exchange Commission rules and his employer

wished to cover the problem up.” See Aka, 156 F.3d at 1291

(describing Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328

(8th Cir. 1996)). Nor is this a case with either a “weak issue of

material fact as to whether the employer’s explanation is untrue”

or “abundant independent evidence in the record that no

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discrimination has occurred,” let alone both. See id.

(hypothesizing a case where the employer has a “strong record

of equal opportunity employment” with 40% of the workforce

made up of protected class members compared to a relevant

labor market of only 10% protected class members).

Pointing out that he proposed eliminating positions

occupied by both men and women, Gilmore argues that a

reasonable jury could not infer sex discrimination. But even

assuming those other actions were nondiscriminatory, we doubt

this could prevent a jury from inferring sex discrimination in

Murray’s case. Moreover, viewing the facts in Murray’s favor,

we think a reasonable jury could find that the RIF’s outcome

supports rather than undermines her claim of sex discrimination.

Sixteen individuals, fewer than half women, occupied the

positions identified for the RIF. When the dust settled, the only

two involuntarily separated were women. While others left the

agency, including two men who retired and another who went to

a different agency, Gilmore points to nothing in the record that

would require a jury to infer that these men would have faced

involuntary separation otherwise.

In sum, Gilmore offers no reason, nor can we think of one,

that would necessarily prevent a reasonable jury from inferring

sex discrimination as to Murray if it found his proffered reason

for abolishing her position pretextual. Murray’s Title VII sex

discrimination claim thus survives summary judgment. Of

course, that claim lies only against Gilmore in his official

capacity, as our case law clearly precludes a suit against him

individually. See Gary v. Long, 59 F.3d 1391, 1399 (D.C. Cir.

1995).

IV.

Murray has waived her remaining two claims. In order for

her claim under D.C.’s Comprehensive Merit Personnel Act to

survive summary judgment, she must demonstrate that her

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termination (for purposes of the Act) occurred at the time of

Jones’s hiring rather than at the time of the RIF, since by the

latter time Gilmore had issued the personnel manual that

(pursuant to the Pearson Order) ended the Act’s applicability to

Housing Authority employees like Murray. Because Murray’s

brief nowhere argues this point, she has waived the claim. See,

e.g., City of Waukesha v. EPA, 320 F.3d 228, 250 n.22 (D.C.

Cir. 2003) (per curiam) (argument inadequately raised in

opening brief is waived). Murray has similarly waived her due

process claim by failing to argue that she has a constitutionally

protected property interest in her job. Indeed, she nowhere

responds to Gilmore’s assertion that employees terminated

pursuant to an RIF lack such an interest. See id.; cf. Carducci v.

Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (noting that the

“premise of our adversarial system is that appellate courts do not

sit as self-directed boards of legal inquiry and research, but

essentially as arbiters of legal questions presented and argued by

the parties before them”). Because none of Murray’s claims

against Gilmore in his personal capacity remains alive, we leave

for another day the issue of whether, as Gilmore argues, court-

appointed receivers enjoy quasi-judicial immunity in their

personal capacity.

We reverse the district court’s entry of summary judgment

for Gilmore with respect to Murray’s Title VII sex

discrimination claim against him in his official capacity and

remand for further proceedings. In all other respects, we affirm.

So ordered.