United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 12, 1998 Decided August 11, 1998
No. 97-7080
Darion M. Carney,
Appellant
v.
The American University,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 95cv01054)
David H. Shapiro argued the cause for appellant. With
him on the briefs was Jennifer R. Levin.
Steven R. Semler argued the cause and filed the brief for
appellee.
Before: Wald, Williams and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge: Claiming race discrimination and
retaliation, appellant challenges the district court's grant of
summary judgment to her former employer, The American
University. Because we find that appellant raised no genuine
issues of material fact regarding either her non-promotion or
her dismissal claims, but that she has identified a genuine
factual dispute over the alleged retaliation, we affirm in part,
reverse in part, and remand.
I
A senior administrator at The American University since
1981, appellant Darion Carney became Director of Student
Services in 1988, the highest ranking African American at the
University. A year later, she became Acting Dean of Stu-
dents, serving in that capacity for two years while the Univer-
sity searched for a permanent Dean. She applied for the
permanent position, but the University selected someone else.
She then returned to her former position as Director of
Student Services. Two years later, the University com-
menced "downsizing," a process which resulted in the elimina-
tion of Carney's position and her dismissal.
Soon after she lost her job, Carney informed the University
by letter that she intended to sue. About the same time, a
question arose as to whether she might be entitled to an
additional three months' severance pay on top of her existing
severance package. The University did not give her the
extra three months' pay.
Invoking 42 U.S.C. s 1981 and the District of Columbia
Human Rights Act, D.C. Code Ann. ss 1-2512, 1-2525 (1992
& Supp. 1998), Carney filed suit in the United States District
Court for the District of Columbia, claiming that the Univer-
sity discriminated against her on the basis of her race when it
did not select her for the Dean of Students position, and again
when it eliminated her position. She also claimed that the
University withheld extra severance pay in retaliation for
exercising her civil rights. In defense, the University assert-
ed that it had legitimate, nondiscriminatory reasons for not
hiring her and for subsequently eliminating her position.
With respect to her retaliation claim, the University argued
first that it crafted Carney's severance package before it
knew that she intended to sue, and second, that all evidence
of linkage between the extra severance pay and her lawsuit is
contained in inadmissible settlement correspondence.
The district court granted summary judgment for the
University. The court found that Carney failed to rebut the
University's legitimate, nondiscriminatory reasons for its de-
cisions not to promote her and to eliminate her position, and
that Carney had pointed to no evidence that race played any
role in those decisions. The court also rejected Carney's
retaliation claims, finding that she failed to establish a causal
link between the exercise of her civil rights and the Universi-
ty's failure to make additional severance payments. Our
review is de novo. Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir.
1994).
II
In order to evaluate claims under 42 U.S.C. s 1981, which
prohibits racial discrimination in the "making, performance,
modification, and termination of contracts, and the enjoyment
of all benefits, privileges, terms, and conditions of the con-
tractual relationship," 42 U.S.C. s 1981(b), courts use the
three-step McDonnell Douglas framework for establishing
racial discrimination under Title VII. See McDonnell Doug-
las Corp. v. Green, 411 U.S. 792, 802-04 & n.13 (1973);
Barbour v. Merrill, 48 F.3d 1270, 1276 (D.C. Cir. 1995) (citing
Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989)).
Under that framework, the plaintiff must first establish a
prima facie case, i.e., that she is a racial minority, that she
applied for an available position for which she was qualified,
that she was rejected, and that the employer either filled the
position with a non-minority or continued its search. If the
plaintiff establishes a prima facie case, the burden shifts to
the employer to rebut the inference of discrimination by
producing a legitimate, nondiscriminatory reason for the chal-
lenged employment decision. The burden then returns to the
plaintiff to show that the proffered reason was pretextual.
Id. Although the burden of persuasion always remains with
the plaintiff, to survive summary judgment the plaintiff need
only raise a genuine issue of material fact with respect to
each element of the McDonnell Douglas framework. See
Coward v. ADT Security Systems, Inc., 140 F.3d 271, 274
(D.C. Cir. 1998). The nonmovant (here Carney), while enti-
tled to all justifiable factual inferences, retains the burden of
pointing to "affirmative evidence" establishing a genuine fac-
tual dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255-57 (1986). "If material facts are at issue, or, though
undisputed, are susceptible to divergent inferences, summary
judgment is not available." Tao, 27 F.3d at 638 (citing
Alyeska Pipeline Serv. Co. v. U.S. EPA, 856 F.2d 309, 314
(D.C. Cir. 1988)). The same standards govern Carney's D.C.
Human Rights Act claims. See Benefits Communication
Corp. v. Klieforth, 642 A.2d 1299, 1301-02 (D.C. 1994).
The Discrimination Claims
We begin with Carney's claim that the University discrimi-
nated against her when it refused to select her for the Dean
of Students position. According to the University, Carney
had no doctoral degree, her work was unimpressive when she
held the position in an acting capacity, and she interviewed
poorly.
Although Carney has made out a prima facie case--she was
a qualified minority candidate and the University eventually
filled the job with a white male--she has pointed to no facts
suggesting that the University's reasons for her nonselection
were pretextual. The job application explicitly stated that a
"doctorate" was "preferred." Carney was the only non-
doctorate candidate to make it to the semi-finals. Carney
admits that she told the selection committee that she had
concerns about the requirement that the Dean remain con-
stantly available, an aspect of the job about which the com-
mittee felt particularly strongly. She never disputed that
complaints were made about her performance as Acting
Dean, e.g., she was not always available and not well known
on campus. Finally, Carney does not claim that the selection
process was tainted or biased; indeed, she handpicked sever-
al members of the selection committee, and of the final four
candidates (she was not one), two were African American
women.
With respect to Carney's second claim--that the University
discriminatorily eliminated her position during downsizing--
she argues that evidence of the suspect motivations of her
supervisor Dean Maurice O'Connell shows that the Universi-
ty's proffered reasons for eliminating the position were pre-
textual. According to Carney, having placed her in the
Acting Dean position, O'Connell then discouraged her from
applying for the permanent position, seeming angry when she
did apply. She asserts that after she disobeyed him, he grew
hostile, lowered her evaluation, and when downsizing oc-
curred, targeted her job for elimination. From these facts,
Carney argues that a jury could conclude that O'Connell was
motivated by a racist paternalism that turned hostile when
she sought the promotion. The University responds that the
elimination of Carney's job had nothing to do with her.
According to the University, the downsizing required it to
eliminate managers at Carney's level and the nature of her
job naturally led to its elimination.
Carney points to three pieces of evidence that she claims
establish O'Connell's untruthfulness: his personal hostility
after she applied for the Dean's position; a full category
decline in his evaluation of her between 1991 and 1993; and
evidence indicating that although O'Connell asserted that he
had not made the elimination decision alone, the other individ-
uals he identifies as having participated--Residential Housing
Director Anne Steen, Dean of Students John Martone, and
Acting Provost Ann Ferren--played no role at all. From this
evidence, Carney argues that a jury could conclude that
O'Connell lied about his reasons for eliminating her job and
thus infer discriminatory animus.
We think Carney's factual proffer requires too much specu-
lation to create a genuine issue of fact about O'Connell's
motivations. See Anderson, 477 U.S. at 249-50 ("If the
[nonmovant's] evidence is merely colorable, or is not signifi-
cantly probative, summary judgment may be granted" (cita-
tions omitted)). Although Carney says O'Connell lowered her
evaluation after she disobeyed him, the record shows he
actually gave her a very good evaluation in October-
November 1991, immediately after she applied for the Dean's
job and was rejected. That two years later he evaluated her
less favorably raises no inference of untruthfulness or hidden
motivation, especially in the absence of evidence that she
deserved a higher grade.
As to Carney's assertion that O'Connell mischaracterized
the decision-making process, O'Connell nowhere denies that
he played an important role in eliminating Carney's job.
Carney's "contradictions" as to the role of other decision-
makers melt away in the face of undisputed facts. Carney
makes much of Steen being on maternity leave from March to
June, during which time Carney lost her job, but since the
meetings discussing the downsizing took place in January and
February, nothing in the record contradicts O'Connell's asser-
tion that Steen discussed the matter with him before going on
leave. Carney says that Martone's testimony indicates that
he did not decide to abolish her job, but according to the
record no one ever specifically asked him whether he dis-
cussed Carney's role. Carney disputes the University's as-
sertion that Acting Provost Ferren made the decision to
abolish her position. But Ferren approved O'Connell's rec-
ommendation to eliminate the position and testified that they
discussed the downsizing at length.
Finally, even if O'Connell became hostile towards Carney,
the evidence she points to raises no inference of O'Connell's
mendacity, nor does it undermine his explanation that he
eliminated her position because it was managerial. To be
sure, irrational hostility could, if unexplained, raise an infer-
ence of pretext. But this record provides a reason for
O'Connell's asserted hostility: He thought it inappropriate for
Carney to have applied for Dean of Students after having
chosen search committee members, and then to have listed
O'Connell and other committee members as references.
Since Carney does not dispute that she did these things, on
this record we cannot find that O'Connell's hostility alone
calls into question the University's explanation of its decision
to eliminate Carney's position.
In sum, Carney has failed to point to any real evidence that
O'Connell lied. Mere differences in characterization of evi-
dence, without a single factual contradiction, create no genu-
ine issues for the jury. The district court properly granted
summary judgment to the University on Carney's discrimina-
tion claims.
The Retaliation Claims
Like claims of discrimination, claims of retaliation are
governed by the McDonnell Douglas burden-shifting scheme.
See McKenna v. Weinberger, 729 F.2d 783, 790 (D.C. Cir.
1984). Although our sister circuits disagree about whether
retaliation violates section 1981, compare, e.g., Andrews v.
Lakeshore Rehabilitation Hosp., 140 F.3d 1405, 1412 (11th
Cir. 1998) (finding cognizable retaliation claim under section
1981), with Von Zuckerstein v. Argonne Nat'l Lab., 984 F.2d
1467, 1472 (7th Cir. 1993) (finding no such claim), the Univer-
sity failed to raise this issue on appeal, thus waiving it, see
Oldham v. Korean Air Lines Co., 127 F.3d 43, 50 (D.C. Cir.
1997). We therefore assume without deciding that in addition
to her retaliation claim under the DCHRA, Carney may
proceed under section 1981.
To establish a prima facie case of retaliation, Carney must
show that (1) she engaged in statutorily protected activity;
(2) her employer took an adverse personnel action against
her; and (3) a causal connection exists between the two. See
Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C. Cir. 1985); How-
ard Univ. v. Green, 652 A.2d 41, 45 (D.C. 1994) (standard for
retaliation claims under DCHRA mirrors standard under
Title VII). "The causal connection component of the prima
facie case may be established by showing that the employer
had knowledge of the employee's protected activity, and that
the adverse personnel action took place shortly after that
activity." Mitchell, 759 F.2d at 86. The Fifth and Seventh
Circuits have held that withholding benefits to which an
employee is otherwise entitled amounts to just the sort of
adverse personnel action that can support a retaliation claim.
See EEOC v. Cosmair, Inc, L'Oreal Hair Care Div., 821 F.2d
1085, 1089 (5th Cir. 1987) ("Clearly if [the employer] stopped
providing [the employee] benefits to which he was otherwise
entitled simply because he filed a charge, the company would
be guilty of retaliation."), followed by EEOC v. Board of
Governors of State Colleges, 957 F.2d 424, 429 & n.8 (7th Cir.
1992).
Carney contends that the University withheld extra sever-
ance pay in retaliation for having signaled her intention to file
suit. In a settlement letter from the University's lawyer
dated December 12, 1994, responding to a letter from Car-
ney's attorney, the University acknowledged that under cer-
tain interpretations of its personnel manuals, Carney might
"arguably [be] entitl[ed] ... to an additional three months'
pay." O'Connell testified that he too thought that Carney
might be entitled to additional severance pay, but that when
he recommended it to Acting Provost Ferren, she refused to
consider it because the University had already received Car-
ney's letter expressing her intent to sue. According to the
University, the extra severance pay amounted to nothing
more than a settlement offer.
Granting summary judgment for the University, the dis-
trict court found that Carney failed to present evidence of
causation, reasoning that the University crafted her initial
severance package containing only seven months' severance
pay before it knew that Carney intended to sue. The court
also held that Rule 408 of the Federal Rules of Evidence
prohibited Carney from relying on settlement correspondence
to establish causation.
We disagree with the district court on two accounts. First,
apart from the settlement letters, O'Connell's testimony pro-
vides independent evidence from which a jury could conclude
that the University retaliated against Carney either by refus-
ing to give her any extra pay or refusing even to consider it.
A jury could also infer causation from the fact that about the
same time Carney expressed her intent to sue, another senior
administrator received additional severance pay. See Mitch-
ell, 759 F.2d at 86. Of course, if the University had a
legitimate, nonretaliatory reason for withholding Carney's
claimed extra pay, it could have done so. We need not decide
what would constitute such a reason since this record pres-
ents sufficient factual questions regarding the University's
good faith--including evidence of Ferren's refusal even to
consider Carney's claims to such pay--to preclude summary
judgment.
Second, although settlement letters are inadmissible to
prove liability or amount, they are admissible "when the
evidence is offered for another purpose." Fed. R. Evid. 408.
In particular, such correspondence can be used to establish
an independent violation (here, retaliation) unrelated to the
underlying claim which was the subject of the correspondence
(race discrimination). See Eisenberg v. University of N.M.,
936 F.2d 1131, 1134 (10th Cir. 1991) (affidavit obtained in
settlement negotiations admissible to impose Rule 11 liabili-
ty); Urico v. Parnell Oil Co., 708 F.2d 852, 854-55 (1st Cir.
1983) (evidence of settlement negotiations admissible to show
interference with efforts to mitigate damages); Resolution
Trust Corp. v. Blasdell, 154 F.R.D. 675, 681 (D.Ariz. 1993)
(finding admissible evidence of settlement negotiations used
to prove retaliatory motive); see also 23 Charles Alan
Wright & Kenneth W. Graham, Jr., Federal Practice and
Procedure s 5314, at 282 (1980) ("Rule 408 is [ ] inapplicable
when the claim is based upon some wrong that was commit-
ted in the course of settlement discussions; e.g., libel, assault,
breach of contract, unfair labor practice, and the like.").
Carney offered the settlement correspondence not to prove
that the University discriminated against her, but to show
that the University committed an entirely separate wrong by
conditioning her benefits on a waiver of her rights. The
letters were therefore admissible.
At the end of its brief, the University urges affirmance on
an alternate theory: that Carney's retaliation claims are
barred by applicable statutes of limitations. The University
maintains that a one-year rather than a three-year statute of
limitations governs section 1981 actions. Carney's state law
claims, the University argues, are barred by the DCHRA's
one-year statute of limitations. Although the University filed
no cross-appeal on this issue, we can affirm a district court
judgment on any basis supported by the record. See Crocker
v. Piedmont Aviation, Inc., 49 F.3d 735, 740-41 (D.C. Cir.
1995).
The "most appropriate or analogous" state law determines
the applicable statute of limitations for section 1981 claims.
Goodman v. Lukens Steel Co., 482 U.S. 656, 660 (1987). The
University argues that the District's one-year statute of
limitations for certain enumerated intentional torts, D.C.
Code Ann. s 12-301(4), not its three-year residual statute of
limitations for other personal injury claims, id. s 12-301(8),
represents the most "analogous" statute of limitations for
purposes of section 1981 actions. The district court rejected
this argument, as do we.
For statute of limitations purposes, the Supreme Court
treats section 1981 claims like claims under 42 U.S.C. s 1983.
See Goodman, 482 U.S. at 660-62 (applying the rule that
courts should look to state personal injury statutes to deter-
mine the appropriate statute of limitations for section 1983
claims, adopted in Wilson v. Garcia, 471 U.S. 261 (1985), to
section 1981 claims); see also Banks v. Chesapeake and
Potomac Tele. Co., 802 F.2d 1416, 1421-22 (D.C. Cir. 1986)
(same). The Supreme Court has held that in states with
multiple statutes of limitations, claims under section 1983 are
governed by the residual or general personal injury statute of
limitations (like section 12-301(8)), rather than the statute of
limitations for enumerated intentional torts (like section
12-301(4)). See Owens v. Okure, 488 U.S. 235, 243-50 (1989).
Accordingly, section 12-301(8)'s three-year statute of limita-
tions applies to all section 1981 claims. Because Carney filed
suit approximately one year after her discharge, her section
1981 retaliation claim is not barred. Exactly when her claim
accrued--and thus whether her DCHRA claim might be
barred by the DCHRA's one-year statute of limitations--
amounts to a disputed issue of material fact that the district
court should resolve at trial.
Although we affirm the district court's grant of summary
judgment for the University on Carney's discrimination
claims, we reverse with respect to her retaliation claims and
remand them for trial.
So ordered.