The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 11, 2017 Decided August 14, 2018
No. 17-7062
KATHLEEN RANOWSKY,
APPELLANT
v.
NATIONAL RAILROAD PASSENGER CORPORATION, AGENT OF
AMTRAK, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-01133)
Carla D. Brown argued the cause and filed the briefs for
appellant.
Matthew J. Sharbaugh argued the cause for appellees.
With him on the brief were William J. Delany and P. David
Larson.
Before: GARLAND, Chief Judge, PILLARD, Circuit Judge,
and SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge PILLARD.
2
PILLARD, Circuit Judge: In the midst of an extensive
restructuring at the Office of the Inspector General for Amtrak,
Kathleen Ranowsky was fired from her job as Deputy Counsel.
The new Inspector General, Tom Howard, ramped up the
restructuring project soon after his appointment; he made
changes to several of the Office’s departments and dismissed
many of its incumbent employees. Ranowsky—a woman in
her early sixties who had been a lawyer for the Inspector
General for roughly twelve years—was among those Howard
fired during the restructuring. Howard also fired Ranowsky’s
immediate supervisor, the only other employee in the General
Counsel’s office, the same day. Howard needed no reason to
fire Ranowsky, who was an at-will employee, but stated that
his lack of confidence in her was the reason for her termination.
Ranowsky claims that her termination was the product of
discrimination based on her age and sex, in violation of the
District of Columbia Human Rights Act (DCHRA), D.C. Code
§ 2-1401 et seq. She also claims that Amtrak later retaliated
against her for filing her EEO complaint, and that two of its
employees aided and abetted those violations. The district
court denied Ranowsky’s motion in limine, which sought
wholesale evidentiary preclusion as a discovery sanction, then
granted summary judgment for the defendants. Because
Ranowsky has not pointed to record evidence from which a
reasonable jury could infer either age or sex discrimination, and
the sanction she sought was unwarranted, we affirm.
I.
A.
The Office of the Inspector General for Amtrak (OIG or
Office) is an autonomous entity within Amtrak created in 1989
with the mission of providing “independent, objective
oversight of Amtrak’s programs and operations.” Vision,
3
Mission, and Authority, Amtrak Office of Inspector General,
https://www.amtrakoig.gov/about-us (last visited July 31,
2018); Joint App’x (J.A.) 415. An Inspector General heads the
Office, aided by a Deputy. The Office has historically been
organized into five departments: Audit, Investigation,
Evaluations, Administrative Services, and General Counsel.
The Office of General Counsel is the smallest of those
departments, staffed when Ranowsky worked there only by
herself, as Deputy Counsel, and General Counsel, Colin
Carriere, to whom she directly reported. The Office of General
Counsel is the OIG’s lawyer, and the OIG is its only client. 1
When a newly-appointed Amtrak Inspector General took
charge in 2009, he began a “transformation effort” to change
OIG’s structure and improve its functionality. That Inspector
General hired Tom Howard as his deputy in 2010. Together,
Howard testified, they “began an effort to correct problems that
[they] saw in the office.” J.A. 332. Howard himself was
appointed Inspector General in February 2014, after his
predecessor’s retirement. Howard continued the
transformation effort by implementing major structural
changes, including the widespread dismissal of employees
throughout the Office. “Of the approximately 95 people in
place in 2010, less than 30 of them remain[ed] in the OIG” as
of 2015. J.A. 416.
B.
Appellant Kathleen Ranowsky is one of the dozens of
employees dismissed from Amtrak OIG during its
1
This case is on review from the grant of a motion for summary
judgment, so we recount only those facts that are not genuinely
disputed; insofar as the record contains conflicting evidence, we
resolve disputes and draw inferences in plaintiff’s favor, as a
reasonable jury would be entitled to.
4
restructuring. Ranowsky, who had held her position as Amtrak
OIG Deputy Counsel since 2002, was fired from that job in
November 2014. In the process of restructuring Amtrak OIG,
Howard came to believe “many” of the problems he had
identified across the Office “were the result of inaction or
inappropriate action on the part of the counsel.” J.A. 332.
Howard testified that, as soon as he was appointed in February
2014, he began to consider replacing General Counsel Colin
Carriere, because Howard “wasn’t satisfied with the service
that the counsel had been providing.” J.A. 331. Around
September or October 2014, Howard added, he “began to think
about what the ramifications would be of keeping the deputy
counsel” if he fired the head counsel, questioning “how
effectively [Deputy Counsel Ranowsky] would work with a
new [head] counsel.” J.A. 334.
Howard had formed some reservations about Ranowsky’s
work—particularly her communication style and demeanor—
during their shared time at Amtrak OIG. He testified that, in
his view, Ranowsky was not responsive to his needs as client.
Rather than provide direct answers to his requests for legal
advice, Ranowsky would indirectly push back. He recalled, for
instance, that Ranowsky “kept raising obstacles” to what
Howard “wanted to accomplish”—in one particular case,
resisting his efforts to create an appropriately redacted copy of
an investigative document a congressional committee had
requested without ever “actually tell[ing] [him] that she
thought it shouldn’t happen.” J.A. 357. Howard testified that
he found Ranowsky’s communication style during the
exchange “condescending, belittling, [and] very flippant,”
pointing in particular to a statement she made via email “‘to the
effect, any fool could see’ the answer to his question.” J.A.
267.
5
In deciding whether to retain Ranowsky as the OIG’s
counsel, Howard also sought input from the Assistant
Inspectors General who relied on Ranowsky for legal counsel.
The Assistant Inspector General for Audits testified: “I told
[Howard] that I didn’t think the quality of [legal] support was
as good as I had experienced in my previous role as an AIG for
audit.” J.A. 375. In particular, he recounted that when he and
Ranowsky were working on a memo together, she circulated
the memo without incorporating his final comments; when the
AIG asked Ranowsky why she had done so, she responded via
email that “next time you’ve got to get your comments in
quicker.” J.A. 377. He testified that Ranowsky’s “approach
was generally to ask questions as opposed to provide solutions
or give definitive information.” J.A. 380. The AIG for
Investigations similarly testified that Ranowsky was “[a]lways
apprehensive about providing support in furtherance of what
you wanted to do,” and instead was more likely to “give you
the negative outcomes of anything you asked her.” J.A. 385.
In October 2014, at around the same time that Howard was
reviewing Ranowsky’s performance with the Assistant
Inspectors General, he “signed off” without comment on a
positive review that General Counsel Carriere had conducted
of Ranowsky’s job performance. J.A. 957-58, 961. Carriere
awarded Ranowsky an overall rating of “exceeded goals,” and
concurred with Ranowsky’s self-assessment that she was
producing helpful work product and communicating
effectively. J.A. 648-50. Ranowsky had earned a positive
performance review the previous year as well, when based on
his own observations and experience working with Ranowsky,
Carriere rated her overall as having “exceeded goals and
modeled Amtrak OIG values.” J.A. 654. Carriere conducted
it, but Howard approved that review too, signing it before
Ranowsky received it.
6
Howard fired Ranowsky just a few weeks after she
received her 2014 positive evaluation, on the same day that he
fired General Counsel Carriere. Howard cited “lost
confidence” in Ranowsky’s performance as the reason for her
termination. See J.A. 398, 415.
It is undisputed that Howard alone made the decision to
fire Ranowsky. He did, however, “discuss the processes . . . to
carry out” her termination with Terry Gilmore, the head of
human resources for Amtrak’s OIG. While completing the
accompanying paperwork, Gilmore listed Ranowsky’s
departure as the result of a “reduction in force.” Howard did
not tell Gilmore to designate the firing a reduction in force. See
J.A. 633, 836. Gilmore said he did so in order to offer
Ranowsky a severance package. See J.A. 451, 453.
Shortly after her dismissal, Ranowsky filed a charge with
the Equal Employment Opportunity Commission (EEOC)
alleging that her termination was discriminatory on the bases
of age and sex. Meanwhile, Howard temporarily detailed
Nadine Jbaili, a recent law school graduate then in her twenties
who was working in the OIG’s Audit department, to the
General Counsel’s office. While working there on a short-term
basis, Jbaili picked up much of Ranowsky’s work.
Howard in February 2015 hired Kevin Winters, a man in
his sixties, to head the General Counsel’s office. Winters then
took the lead in staffing his office. After observing Jbaili’s
work, Winters decided to hire her permanently for a new junior
Associate Counsel position.
Winters then turned to filling the Deputy Counsel position
that Ranowsky had held; he alone selected which applicants to
interview. The listed “minimum qualifications” for the
position included “10 years of legal work experience,” while
“[c]reativity, flexibility, and ability to work in a fast paced
7
environment” were listed as “[p]referred” qualifications. J.A.
1029. Ranowsky applied for the position, but Winters decided
not to interview her because Howard had recently dismissed
Ranowsky from the same position. A committee consisting of
Winters, Gilmore, and three other OIG executives—Howard
not among them—determined which of the interviewed
candidates would receive an offer.
Amtrak initially offered the position to René Lee, a woman
with sixteen years of experience as a practicing lawyer.
Ranowsky asserts, and Amtrak does not dispute, that Lee was
close in age to Ranowsky. Amtrak first proposed to pay Lee
an annual salary of $155,000, then increased its offer to
$165,000. Lee declined the job, both because neither salary
sufficed and because the manner in which Winters and Gilmore
communicated with her caused her to doubt the sincerity of
Amtrak’s interest. Lee stated that she suspected Amtrak did
not genuinely want to hire her but had actually “pre-selected a
less-qualified candidate” because, after she expressed
dissatisfaction with the salary Amtrak offered, Gilmore
“requested multiple times that she withdraw her application in
writing.” J.A. 636-37. Amtrak then hired Frank Mazurek, a
35-year-old man who had worked with Winters as a lawyer in
the National Aeronautics and Space Administration (NASA)’s
OIG. Mazurek had started at NASA part time in May 2005,
while he was still in law school, become staff attorney there in
2006 after passing the bar, and stayed on until he left for
Amtrak’s OIG in 2015.
Ranowsky also applied a few months later for a temporary
contract attorney position in Philadelphia at Amtrak’s
corporate office, not part of the OIG. The person in charge of
hiring for that post, William Herrmann, stated in his declaration
that he did not interview her because, “based on [his] prior
dealings with Ms. Ranowsky,” he did not believe she “would
8
be a positive addition or contribution to the work of the Amtrak
Law Department.” J.A. 497-98.
C.
Ranowsky in July 2015 sued Amtrak, and Howard and
Gilmore personally, in District of Columbia Superior Court,
alleging violations of the District of Columbia Human Rights
Act. Based on its status as a congressionally incorporated
entity, Amtrak removed the case to federal court. See 28
U.S.C. § 1349; Nat’l R.R. Passenger Corp. v. Lexington Ins.
Co., 365 F.3d 1104, 1105 (D.C. Cir. 2004). Ranowsky’s
amended federal complaint alleged principally that her
termination was motivated by age and sex discrimination in
violation of the DCHRA. She also alleged that Amtrak’s two
refusals to reemploy her were discriminatory on those same
grounds, and also in retaliation for her EEOC charge. She
named Howard and Gilmore as individual defendants
personally liable under D.C. Code § 2-1402.62 for carrying out
Amtrak’s illegal actions.
The case proceeded to discovery. After Ranowsky
deposed Howard, Gilmore, and other key Amtrak executives, a
dispute arose over whether and under what circumstances
Amtrak and its OIG would produce a corporate designee for
deposition under Federal Rule of Civil Procedure 30(b)(6).
Ranowsky notified Amtrak that she wanted to depose a
corporate designee on a wide range of subjects. Amtrak
responded within three days, asserting that several of the
proposed topic areas were “overbroad, vague, and not
described with sufficient specificity.” J.A. 170. Amtrak
objected that many of the topics proposed in the deposition
notice “would simply be duplicative of other discovery efforts
in the case, including prior depositions,” J.A. 171, and
recounted information it had already provided on the issues
9
Ranowsky sought to pursue. For example Ranowsky’s Rule
30(b)(6) deposition notice sought testimony on “[a]ll
information respecting Ms. Ranowsky’s separation from
Amtrak, including the reasons therefore . . . and the ultimate
decision maker”; Amtrak responded that Howard, the
undisputed sole decision maker behind Ranowsky’s
termination, had already testified to the reasons for his decision
“as well as the other points requested in these topics.” J.A. 171.
Similarly, Ranowsky had requested “[a]ll information
respecting any severance or severance packages presented to
Ms. Ranowsky,” but Amtrak had already produced a copy of
the severance agreement and both Howard and Gilmore had
been deposed on that and other matters related to the formal
terms of Ranowsky’s separation. J.A. 171-72.
Amtrak offered to work with Ranowsky on “targeted
follow-up,” J.A. 172, but Ranowsky did not respond until
several weeks later, when her counsel noticed Amtrak’s
30(b)(6) deposition on all the initially identified topics,
unaltered, for the last day of the discovery period. Amtrak
failed to appear. Without seeking to compel Amtrak’s
participation or an extension of the discovery period,
Ranowsky moved in limine to sanction Amtrak for failure to
appear, seeking an order precluding Amtrak from raising any
defenses that information she hoped to obtain through the Rule
30(b)(6) deposition might have rebutted. Amtrak opposed,
maintaining its objections that the noticed topics were overly
broad and duplicative. The district court summarily denied
Ranowsky’s sanctions motion by minute order.
At the close of discovery, the district court granted
summary judgment in defendants’ favor on all of Ranowsky’s
claims. Ranowsky v. Nat’l R.R. Passenger Corp., 244 F. Supp.
3d 138 (D.D.C. 2017). Ranowsky appeals both the grant of
summary judgment and the denial of sanctions.
10
II.
We review de novo the district court’s summary judgment.
See Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015). Amtrak
is entitled to summary judgment only upon showing “that there
is no genuine dispute as to any material fact and [it] is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “At
summary judgment, the court must avoid weighing the
evidence and making credibility determinations. We instead
assume all conflicts would be resolved and all inferences drawn
in the nonmoving party’s favor and inquire whether, on the
evidence so viewed, ‘a reasonable jury could return a verdict
for the nonmoving party.’” Allen, 795 F.3d at 38 (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
We review first Ranowsky’s claim that she was fired on
the discriminatory basis of her age and/or sex; we focus on her
age discrimination claim because Ranowsky marshals no
evidence in support of her sex discrimination claim that she
does not also use in support of her age discrimination claim.
We turn then to her additional DCHRA claims.
A.
The DCHRA forbids an employer from firing an employee
“wholly or partially for a discriminatory reason based upon . . .
sex [or] age.” D.C. Code § 2-1402.11(a); see Wash.
Convention Ctr. Auth. v. Johnson, 953 A.2d 1064, 1072-73
(D.C. 2008). “We analyze discrimination claims under the
[DCHRA] in the same way that we analyze discrimination
claims under” Title VII of the Civil Rights Act of 1964 (Title
VII), 42 U.S.C. § 2000e et seq., and the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. § 621 et seq. See Vatel
v. All. of Auto. Mfrs., 627 F.3d 1245, 1246 (D.C. Cir. 2011).
Because it is undisputed here that Ranowsky has “suffered an
adverse employment action and [Amtrak OIG] has asserted a
11
legitimate, non-discriminatory reason for the decision,” the
dispute focuses on “one central question: Has the employee
produced sufficient evidence for a reasonable jury to find that
the employer’s asserted non-discriminatory reason was not the
actual reason and that the employer intentionally discriminated
against the employee on the basis of [age or sex]?” Brady v.
Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008).
Howard was the sole decision maker on Ranowsky’s
termination, and his asserted explanation is at issue. Ranowsky
cannot avoid summary judgment merely by asserting that she
disbelieves Howard’s claimed “loss of confidence”; she must
instead present evidence from which a reasonable jury could
conclude that Howard’s stated reason was “dishonest or
unreasonable.” Brady, 520 F.3d at 496; see George v. Leavitt,
407 F.3d 405, 413 (D.C. Cir. 2005). “Whether the available
evidence suffices to support a jury finding” in Ranowsky’s
favor “will, necessarily, be a contextual judgment.” Allen, 795
F.3d at 40.
A “key component” of discrimination claims where, as
here, the employer has put forth a nondiscriminatory reason is
“the battle over pretext.” Id. at 39. Amtrak maintains that “loss
of confidence” in Ranowsky’s ability to perform her job was
the sole basis for her termination. Ranowsky counters that its
explanation is pretextual, and that discrimination was the actual
reason, on four grounds:
First, Ranowsky asserts a jury could disbelieve Howard’s
nondiscriminatory justification for her firing because Amtrak
offered “shifting explanations” for that decision. While “it is
often reasonable to think that an employer who . . . shifts its
rationale for challenged action is culpable of the charged
discrimination,” id. at 40, the record in this case does not
12
support a claim of shifting explanations. Howard’s explanation
has remained entirely consistent:
• The letter Ranowsky received when she was terminated
on November 18, 2014, attributed the dismissal to
Howard’s “loss of confidence” in her. J.A. 657.
• Amtrak maintained that same stance in its April 9,
2015, position statement to the EEOC, filed in response
to Ranowsky’s charge of discrimination. J.A. 414-20.
It added that, in reviewing and restructuring the entire
OIG, Howard came to believe the General Counsel’s
office was “not providing adequate support to the
OIG,” J.A. 416, and Ranowsky in particular was “not
always helpful and was sometimes belligerent and
disrespectful,” J.A. 417. The Assistant Inspectors
General for Audits and Investigations doubted, as did
Howard, that she would work effectively with a new
supervisor. J.A. 417.
• After litigation began, Howard again asserted in his
response to Ranowsky’s interrogatories that he had lost
confidence in “the quality of legal assistance provided
by [Ranowsky] to her primary clients – the Audit and
Investigations groups within OIG” and in her ability to
work well with those employees. J.A. 398.
• Amtrak maintained that position in its motion for
summary judgment, J.A. 242, and continues to maintain
it on appeal, Appellees’ Br. 32-33.
Ranowsky points to no evidence from which a reasonable
jury could conclude that Howard, the undisputed decision
maker, ever shifted his explanation, nor do we on our review
of the record see any. Ranowsky’s “shifting explanations”
theory rests solely on the fact that the head of human resources
for Amtrak OIG, Terry Gilmore, coded Ranowsky’s
termination as a “reduction in force” on the human resources
13
paperwork accompanying the termination. But it is undisputed
that Gilmore explained that he did so to show Ranowsky’s
eligibility for severance pay. Gilmore’s coding decision—
made without any input from Howard—does not expose any
shift in Howard’s explanation from which a jury could infer
that his “loss of confidence” rationale was a pretext for
discrimination. 2
Second, Ranowsky contends that Howard could not have
genuinely lost confidence in her because he signed off on
Carriere’s positive performance review of her work only a few
weeks before he fired her. J.A. 957. But Howard’s signoff on
Carriere’s evaluation does not establish that Howard, contrary
to his proffered nondiscriminatory reason, was confident in
Ranowsky’s ability to serve as Deputy Counsel for him and a
new General Counsel going forward. While the disparity
between a positive performance review and performance-based
termination would in some cases suffice to raise a material
factual dispute regarding pretext, see George, 407 F.3d at 413-
14, discerning pretext is highly contextual, see Aka v. Wash.
Hosp. Ctr., 156 F.3d 1284, 1290-94 (D.C. Cir. 1998) (en banc);
2
“Workforce reduction explains why [a defendant employer] laid
off a group of its workers, but it does not explain why [the plaintiff
employee] was chosen to be part of that group.” Diaz v. Eagle
Produce Ltd., 521 F.3d 1201, 1212 (9th Cir. 2008). Dismissal on the
ground of reduction in force, or “RIF,” is not necessarily inconsistent
with dismissal for lack of confidence, and the two could go hand in
hand: A decision maker’s relative degrees of confidence in various
employees may be the selection criterion for carrying out a reduction
in force. In Diaz, for example, the employer, Eagle Produce,
provided “legitimate, non-discriminatory explanations for the layoffs
of Moreno and Mancilla.” Id. at 1212. Its interlocking justifications
were “an overall workforce reduction and performance deficiencies.
Those explanations were each different, but not inconsistent.” Id. at
1214.
14
Allen, 795 F.3d at 40. The undisputed evidence in the context
before us fails to raise an inference of pretext: General Counsel
Carriere’s positive performance reviews of Ranowsky as his
Deputy—even as approved by Howard—do not conflict with
Howard’s own assessment that he did not feel confident
continuing to rely on Ranowsky for sensitive and consequential
legal advice.
It is undisputed that, in his role as Inspector General,
Howard is both the supervisor of the employees in the General
Counsel’s office and also their client. As the OIG’s principal
in charge of at-will employees, Howard was entitled to fire
Ranowsky with or without warning for any lawful reason, or
for no reason at all. See McCormick v. District of Columbia,
752 F.3d 980, 987 (D.C. Cir. 2014). In carrying out the
restructuring of Amtrak OIG, Howard dismissed dozens of
employees across the Office. On the day he fired Ranowsky,
Howard also fired Carriere, the General Counsel. Inspector
General Howard and his Office are, as clients, entitled to select
lawyers in whom they feel they can place their trust and
confidence. The confidential, at-will character of the Counsel
and Deputy Counsel jobs underwrites that trust. That does not
mean that employees like Ranowsky may be fired for
discriminatory or retaliatory reasons; they cannot. See
generally Price Waterhouse v. Hopkins, 490 U.S. 228, 255-58
(1989) (plurality opinion). But it does show why Carriere’s
evident appreciation of Ranowsky’s skill does not conflict with
Howard’s expressed lack of confidence as client in her working
style, demeanor, or dedication to his objectives.
It was the Inspector General’s prerogative to choose a
General Counsel and Deputy Counsel with whom he felt he and
his team could communicate clearly and efficiently, and in
whom they could repose their trust and confidence.
Ranowsky’s “primary clients” at the Office of Inspector
15
General, J.A. 344, with Howard at the head, all testified they
had reservations about whether Ranowsky was the best person
to serve the OIG. They unanimously expressed concern that
Ranowsky was more likely to resist their objectives than to aid
them in navigating legal requirements to achieve those
objectives. No documentary evidence was inconsistent with
that testimony and, indeed, emails from August 2014 provide
contemporary corroboration of Howard’s own frustrations in
working with Ranowsky.
Relying on Carriere’s evaluation, Ranowsky mounts a
defense of her work. Carriere, after all, praised it and, as far as
she knew, her work was “exceed[ing] goals.” J.A. 648-49.
Ranowsky saw herself as “represent[ing] the interests of the
office” rather than any one member, J.A. 704, perhaps
explaining her decisions to push back, even as the Assistant
Inspectors General considered her a “naysayer,” J.A. 385. We
need not gainsay that Ranowsky is a capable lawyer, and that
her performance appraisals meaningfully so recount, to
conclude that nothing in the record contradicts Amtrak’s
proffered nondiscriminatory rationale for the firing: On his
own assessment, Inspector General Howard did not deem
Ranowsky to be a counselor on whom he and the Assistant
Inspectors General felt inclined to depend. Howard’s signoff
on Carriere’s evaluation of Ranowsky does not conflict with
Howard’s assertion that he “honestly and reasonably” lacked
confidence in Ranowsky and that he credited the Assistant
Inspectors General’s similar reservations. See Brady, 520 F.3d
at 496.
Third, Ranowsky maintains that the qualification disparity
between her and her younger replacements is evidence of age
bias that gives reason to doubt the sincerity of Howard’s claim
of lost confidence. In particular, she contends that she was first
temporarily replaced by a much younger and less experienced
16
woman, Nadine Jbaili, and then permanently replaced by Frank
Mazurek, who was also younger and whom Ranowsky claims
was underqualified for the position. The job announcement
required ten years’ legal experience, and Mazurek had been a
licensed attorney only for nine of the ten years he had worked
in the NASA OIG’s office.
Again, however, Ranowsky fails to make a crucial link:
Jbaili was not Ranowsky’s replacement, but only filled
Ranowsky’s role until Howard could hire a new General
Counsel. It was that new counsel, Kevin Winters, who then
decided to retain Jbaili in a junior, Associate Counsel job, and
to hire Mazurek as Deputy Counsel. Howard and Winters both
testified that Howard wielded no influence over Winters’s
interviewing and hiring decisions for the Deputy Counsel
position. See J.A. 364, 366, 472. Ranowsky points to no
evidence from which a reasonable juror could conclude that
Winters’s decision to hire Jbaili and Mazurek reflects any age-
based bias or pretext on Howard’s part.
Fourth, Ranowsky marshals evidence of what she
maintains is Amtrak OIG’s and Howard’s bias more generally
against persons over forty. She contends, for example, that
Amtrak was engaged in succession planning—that is, taking
account of employees’ long-term plans, including departures
and retirements, to ensure its staffing needs would be met over
time. Without more, such routine business planning does not
raise an inference of discrimination. Ranowsky also contends
that Winters made an illusory job offer for the Deputy Counsel
position to a qualified, older woman, René Lee, in what
Ranowsky describes as an attempt to cover up Amtrak’s
discrimination. Lee submitted a declaration stating that she
“suspected” based on an “odd feeling” that Amtrak’s job offer
to her was disingenuous, J.A. 682, but that affidavit offers no
factual basis to doubt Amtrak OIG’s interest; indeed, Winters
17
increased Lee’s salary offer by $10,000 in hopes of convincing
her to take the position. Finally, Ranowsky points to Howard’s
testimony that he “did not” think Ranowsky “could adapt” to
working with a new individual as reflecting an age-based
stereotype. To be sure, it is a stereotype that older people are
less flexible than their juniors. See Steele v. Mattis, No. 16-
5236, slip op. at 12-14 (D.C. Cir. Aug. 10, 2018). But
Ranowsky has offered no reason to doubt that Howard’s
expressed reservation about her ability to “adapt” referred,
honestly and reasonably, to the experiences he and the
Assistant Inspectors General described of finding Ranowsky
abrupt and dismissive in ways that made it difficult for them to
work with her.
On her principal discrimination claim, we hold that
Ranowsky has failed to adduce the evidence to turn her
suspicions into a triable inference of discrimination, as a
plaintiff must do to defeat a properly supported motion for
summary judgment. Accordingly, we affirm the district court’s
dismissal of that claim.
B.
Ranowsky brings two additional DCHRA claims, neither
of which raises a triable issue.
First, shortly after being fired, Ranowsky applied to
positions at both Amtrak OIG and the Amtrak Law
Department, and she contends that discrimination and/or
retaliation for filing her EEOC charge account for her being
neither interviewed nor hired for either position. Ranowsky re-
applied for her former position as Deputy Counsel once the
new General Counsel, Winters, sought to fill it. Winters
testified that he declined to interview Ranowsky because the
Inspector General had recently fired her from that very job.
Ranowsky contends that Howard’s stated reason for firing her
18
was disingenuous and discriminatory and that his bias tainted
Winters’s decision, but that ground falls with our holding that
the record cannot support a finding that Howard’s decision was
motivated by discrimination. There is accordingly no genuine
factual dispute for a jury. Summary judgment is appropriate
here because Ranowsky has failed to put forward any evidence
showing that Winters declined to interview or hire her because
of her age or sex, or in retaliation for her decision to file an
EEOC complaint. See Vatel, 627 F.3d at 1247-48.
Similarly, Ranowsky has not created a genuine dispute of
fact material to the honesty or reasonableness of Amtrak
Managing Deputy Counsel William Herrmann’s decision to
pass over Ranowsky’s application for a contract attorney
position in the Amtrak Law Department’s Philadelphia office.
Herrmann, who was hiring for Amtrak rather than its OIG,
maintains he decided not to interview Ranowsky because he
had an unfavorable impression of her after working with her in
the past. Ranowsky points to nothing in the record that
supports an inference that discrimination or retaliation was a
factor in Herrmann’s assessment. Accordingly, we affirm the
district court’s decision to grant summary judgment on this
claim as well.
Second, we affirm the district court’s grant of summary
judgment for Amtrak on Ranowsky’s “aiding and abetting”
claims against Howard and Gilmore individually. Because
Amtrak did not violate the DCHRA in firing or failing to hire
Ranowsky, there was no statutory violation for Howard or
Gilmore to aid or abet. See Guajacq v. EDF, Inc., 601 F.3d
565, 576, 578 (D.C. Cir. 2010).
***
In affirming summary judgment, we decide only that
Ranowsky has not pointed to evidence that contradicts
19
Amtrak’s evidence of the relevant decision makers’ honest loss
of confidence in her. See Brady, 520 F.3d at 496; George, 407
F.3d at 415. In affirming dismissal of the discrimination
claims, we do not more broadly review Howard’s decision to
fire Ranowsky or his judgment that he could not work well with
her. Those are business decisions for him to make—wisely or
not. See Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir.
2006); Fischbach v. D.C. Dep’t of Corrs., 86 F.3d 1180, 1183
(D.C. Cir. 1996).
III.
Ranowsky also appeals the district court’s summary denial
of her motion in limine for sanctions based on Amtrak’s failure
to produce a corporate representative for deposition under
Federal Rule of Civil Procedure 30(b)(6). We review that order
for abuse of discretion, and “may reverse the trial court only if
. . . its actions were clearly unreasonable, arbitrary or fanciful.”
See Bonds v. District of Columbia, 93 F.3d 801, 807-08 (D.C.
Cir. 1996) (alteration in original) (quoting Hull v. Eaton, 825
F.2d 448, 452 (D.C. Cir. 1987) (per curiam)).
The sanctions Ranowsky sought were broad: She moved
to “preclud[e] Defendants from raising at summary judgment
or trial any affirmative defense, fact, or explanation that . . .
relate[s] to any of the corporate designee topics.” Ranowsky v.
Nat’l R.R. Passenger Corp., No. 15-1133, Dkt. No. 28 at 1.
Those corporate-designee topics, in turn, included expansive
requests, such as for “[a]ll information respecting Ms.
Ranowsky’s separation from Amtrak OIG, including the
reasons therefore [sic],” J.A. 150, and “[a]ll other facts or
information Amtrak OIG contends are relevant in this lawsuit
or to Ms. Ranowsky’s claims,” J.A. 152. Howard had already
testified to the reasons for Ranowsky’s separation from
Amtrak, and Amtrak had already produced documents and
20
deponents responsive to the subject matter of Ranowsky’s new
requests. See J.A. 171-72; see also J.A. 195-99. Were the
district court to have granted Ranowsky’s motion, Amtrak
would have effectively been precluded from engaging any of
the facts pertinent to the case.
The district court did not abuse its discretion in refusing to
impose the requested sanction. While discovery was ongoing,
Amtrak responded to Ranowsky’s counsel within three days of
receiving the deposition topics, contending they were
overbroad and in many cases duplicative: Amtrak expressed
its willingness to “respond[] to targeted follow-up” on any
“particular aspect of one of these topic areas” Ranowsky
believed was “not covered.” J.A. 172. The record does not
reflect any such targeted follow up on Ranowsky’s part.
Instead, Ranowsky’s counsel did not respond for several
weeks, at which point she emailed Amtrak a week before
discovery’s end to ask about deposition dates, and served
notices for the final day of the discovery period without waiting
even half an hour for a response. J.A. 175-76. When Amtrak
then failed to produce a Rule 30(b)(6) deponent, Ranowsky’s
counsel did not move the magistrate judge overseeing
discovery to compel Amtrak’s participation.
Rule 37 does not excuse a party from appearing for a
properly-noticed 30(b)(6) deposition because it objects to it,
see Fed. R. Civ. P. 37(d)(2), but it also does not require the
district court to impose sanctions—let alone a preclusion order
effectively dispositive of the merits, see Fed. R. Civ. P.
37(d)(1)(A). “The choice of sanction should be guided by the
‘concept of proportionality’ between offense and sanction.”
Bonds, 93 F.3d at 808. The sole sanction Ranowsky sought
was to preclude Amtrak from raising any fact or defense
relevant to Ranowsky’s termination. In view of Ranowsky’s
failure to identify any shortfall in information already obtained
21
by other discovery mechanisms, and lack of meaningful
specificity as to the further information she sought, the district
court acted within its reasonable discretion in denying a
requested sanction that would have amounted to a judgment in
Ranowsky’s favor.
***
We accordingly affirm the district court’s grant of
summary judgment on all of Ranowsky’s claims and its denial
of her motion in limine for discovery sanctions.
So ordered.