Carpenter v. Federal National Mortgage Ass'n
Carpenter v. Federal National Mortgage Ass'n
Opinion of the Court
Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.
JoAnn Carpenter, employed at the Federal National Mortgage Association (Fannie Mae), appeals the district court’s grant of summary judgment to Fannie Mae on her claim that her supervisors retaliated against her in violation of the District of Columbia Human Rights Act (DCHRA), D.C.Code §§ 1-2501 et seq. Carpenter specifically alleges that they retaliated by downgrading her performance rating and by rejecting her for a senior vice president position following her decision to appeal the district court’s dismissal of her original discrimination claim against Fannie Mae. Carpenter now contends that she presented sufficient evidence to allow a reasonable jury to conclude that Fannie Mae’s proffered reasons for her downgrading and nonselection were pretextual. Alternatively, Carpenter asserts that she should be allowed discovery. We affirm for the reasons set forth below.
I.
Since 1987, Carpenter has been a Vice President and Deputy General Counsel at Fannie Mae. In the summer of 1996, Fannie Mae decided to promote a different vice president into a new supervisory position. Carpenter claimed that she was not considered for the position despite her seniority. On learning of the promotion, Carpenter met in September 1996 with her supervisors, Anastasia Kelly and Anthony Marra, and complained of gender discrimination. According to Carpenter, Marra told her to “drop” her claim and Kelly warned her to “not cut off [her] nose to spite [her] face.” Carpenter v. Federal Nat’l Mortgage Ass’n, No. 1:98CV00563, at 9 (D.D.C. Apr. 20, 1998) (Aff. of PL JoAnn Carpenter and Rule 56(f) Aff.) [hereinafter 56(f) Aff.], Joint Appendix (JA) 74.
On October 17, 1996 Carpenter filed an employment discrimination lawsuit, alleging gender discrimination under DCHRA due to Fannie Mae’s refusal to promote her and for certain retaliatory acts that occurred after she gave notice of her claim. Following contentious discovery that included allegations of untruthful statements by Kelly and Marra, the district court granted summary judgment to Fannie Mae, see Carpenter v. Federal Nat’l Mortgage Ass’n, No. 96-2399 at 28 (D.D.C. Oct. 28, 1997) (Carpenter I), and we affirmed, see Carpenter v. Federal Nat’l Mortgage Ass’n, 165 F.3d 69 (D.C.Cir. 1999). Within two weeks after filing her appeal, Carpenter learned that she had been given a performance rating of 4 + , a slight downgrade from the ratings of 5 and 5- that she received for the previous seven years. Soon after, Kelly rejected Carpenter for a senior vice president position that had opened up in the General Counsel’s office.
On March 5, 1998 Carpenter filed a second lawsuit under DCHRA, D.C.Code § 1-2525(a),
On August 3, 1998 the district court granted Fannie Mae’s motion for summary judgment without discovery and found that: (1) the September 1996 Kelly/Marra admonitions related solely to Carpenter I; (2) Fannie Mae’s explanation of the downgrade (i.e., a larger pool of vice presidents against whom Carpenter was evaluated and the criticisms of two clients) demonstrated a legitimate, non-discriminatory rationale and, absent evidence that the criticisms were fabricated, her claim failed; and (8) Fannie Mae’s explanation of her nonselection as senior vice president (i.e., the requirement of litigation experience) was also non-discriminatory. The district court further found Carpenter’s contention that discovery might prove otherwise speculative. See JA 10-19. Carpenter timely appealed.
II.
Carpenter urges that the district court erred in granting summary judgment because Fannie Mae allegedly retaliated against her in violation of DCHRA when it gave her a 4 + rating rather than the 5- she had received in the previous rating period.
Moreover, Carpenter has failed to show that Fannie Mae’s explanation was pretextual. We first reject her underlying contention that because she previously received a 5- and her performance has not changed, she had to have earned a 5- for 1997. See Fischbach v. District of Columbia Dep’t of Corrections, 86 F.3d 1180, 1183 (D.C.Cir. 1996) (absent “error too obvious to be unintentional,” court respects employer’s “unfettered discretion” to evaluate employees) (citation omitted); Billet v. CIGNA Corp., 940 F.2d 812, 826 (3d Cir. 1991) (rejecting argument based on past evaluations as theory “that things never change, a proposition clearly without basis in reality”), overruled in part on other grounds by St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Pre-1995 ratings were done by other supervisors and, of the vice presidents who received higher ratings than Carpenter in 1997, only one had been compared to Carpenter previously, receiving higher ratings than she in two previous years. We also find Carpenter’s claim that St. John’s and Williams’s criticisms were the product of collusion and fabrication without record support. See Randall v. Howard Univ., 941 F.Supp. 206, 213 (D.D.C. 1996) (granting summary judgment where plaintiff offered no evidence to support theory that employees conspired against her), aff'd, 132 F.3d 1482 (D.C.Cir. 1997). Rather, Carpenter’s admission that she had “little contact” with Williams may explain his view that she needed to assume greater responsibility and her failure to work directly with St. John on the Y2K project may similarly have led St. John to believe that she needed to be more “proactive.” 56(f) Aff. at 4, 5 ¶¶ 13, 17, JA 69, 70; see Valentino v. United States Postal Serv., 674 F.2d 56, 66 (D.C.Cir. 1982) (management judgments regarding professionals often depend on subjective criteria). Although Carpenter infers retaliatory intent from her supervisors’ September 1996 comments, they also do not constitute evidence sufficient to allow a reasonable jury to infer that Fannie Mae’s reasons for her November 1997 rating were false. Carpenter herself cites a narrative evaluation of her 1996 performance, which Marra wrote in March 1997 after his September 1996 comments and after she filed Catpenter I in October 1996, as an accurate portrayal of her performance and evidence that the November 1997 rating must be the product of retaliation. See Uhl v. Zalk Josephs Fabricators, Inc., 121 F.3d 1133, 1136 (7th Cir. 1997) (intervening satisfactory rating defeats causal link).
Because Fannie Mae offered a legitimate nondiscriminatory reason for not selecting Carpenter for the senior vice president position—i.e., that Carpenter ad
Carpenter alternatively sought remand for discovery under Fed.R.Civ.P. 56(f) (allowing pre-summary judgment discovery if “it appear[s] from the affidavits of a party opposing the motion that the party cannot for the reasons stated present by affidavit facts essential to justify the party’s opposition”). Carpenter, however, had to indicate what facts she intended to discover that would create a triable issue and 'why she could not produce them in opposition to the motion. See Strang v. United States Arms Control & Disarmament Agency, 864 F.2d 859, 861 (D.C.Cir. 1989). “It is well settled that [c]onelusory allegations unsupported by factual data will not create a triable issue of fact.” Exxon Corp. v. FTC, 663 F.2d 120, 126-27 (D.C.Cir. 1980) (quotation omitted, alteration original).
Carpenter sought discovery relating to her performance downgrade by merely pointing to the disparity between Williams’s and St. John’s criticisms and the compliments of other coworkers and arguing that “this contrast raises an inference that the criticisms were fabricated or, at a minimum, immaterial,” Appellant’s Br. at 32, a plainly conclusionary assertion without supporting facts. Carpenter also alleged that other vice presidents performed worse or no better than she did but offered no reasonable basis to suggest that discovery would show either that Fannie Mae made an error too obvious to be unintentional or actually believed that she performed better than her peers. See Fischbach, 86 F.3d at 1182 (to show pretext, issue is not correctness of employer’s reasons but whether it honestly believes them). In fact, to the contrary, Marra averred in his affidavit that “[b]ased on my own experience and comments from Senior Vice Presidents who are clients of the Vice Presidents, the four Vice Presidents who received ratings of 5 or 5- exemplified [the high standards of the Legal Department], and them contributions clearly exceeded that of their peers.” JA 55. Carpenter further suggested that litigation experience is a false credential for senior vice president but failed to describe what new facts she believed could be obtained by discovery to support her theory. See Strang, 864 F.2d at 861 (desire to “test” affiants’ testimony does not justify Rule 56(f) discovery). Instead, Carpenter supported her request for discovery with un
For the foregoing reasons, the district court’s grant of summary judgment to the Federal National Mortgage Association is
Affirmed.
. In relevant part, section l-2525(a) states, "It shall be an unlawful discriminatory practice to .. . retaliate against ... any person in the exercise ... of ... any right granted or protecled under this chapter.” See also Blackman v. Visiting Nurses Ass'n, 694 A.2d 865, 868 (D.C. 1997) (looking to federal law to interpret DCHRA).
. St. John, Senior Vice President for Guaranty and Franchise Technology, and Williams, Senior Vice President for Customer Technology Services, were internal clients of Carpenter's legal services at Fannie Mae. See Carpenter v. Federal Nat’l Mortgage Ass'n, No. 1:98CV00563, at 4 ¶¶ 12-14 (D.D.C. Mar. 31, 1998) (Decl. of Anthony F. Marra), JA 55. St. John criticized Carpenter’s work on a Y2K project as "weak” in that she "was not proactive in seeking to identify and solve potential legal issues.” Id. Williams stated that Carpenter needed to "become more proactive and to assume greater responsibility as an advisor 1o the business.” Id.
. A DCHRA plaintiff must first make a prima facie showing of retaliation. See McKenna v. Weinberger, 729 F.2d 783, 790 (D.C.Cir. 1984); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); O’Donnell v. Associated Gen. Contractors of Am., Inc., 645 A.2d 1084, 1086 (D.C. 1994) (burden of proof for claim of disparate treatment based on federal law applicable to DCHRA). To do so, he must establish that he was engaged in a protected activity, that his employer took adverse personnel aclion against him and that the two events were causally connected. See Arthur Young & Co. v. Sutherland, 631 A.2d 354, 368 (D.C. 1993). After the plaintiff makes a prima facie showing, a presumption of retaliation arises that shifts the burden of production to the employer to rebut the prima facie case by producing "clear and reasonably specific” evidence that its actions were taken for legitimate, nonreta-liatory reasons. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 258, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If an employer meets its burden of articulating a non-retali,aloiy reason, the burden of production shifts back to the plaintiff, who "must have the opportunity to demonstrate that the proffered, reason was not ... true.” Id. at 256. The plaintiff’s burden of production "merges with the ultimate burden of persuad
. Carpenter argues for the first time on appeal that evidence of the candidates’ credentials included in their resumes was inadmissible hearsay and that statements in Kelly's declaration relating to those credentials did not conform with Fed.R.Civ.P. 56(e) (requiring affidavits based on "personal knowledge"). Carpenter waived these arguments by not raising them below and therefore we need not consider them. See District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1084-85 (D.C.Cir. 1984).
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