United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 23, 1999 Decided April 27, 1999
No. 98-7170
JoAnn Carpenter,
Appellant
v.
Federal National Mortgage Association,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 98cv00563)
Nicholas H. Hantzes argued the cause for the appellant.
Kenneth M. Robinson was on brief for the appellant. Dennis
M. Hart entered an appearance.
Juanita A. Crowley argued the cause for the appellee.
John Payton was on brief for the appellee.
Before: Edwards, Chief Judge, Sentelle and Henderson,
Circuit Judges.
Opinion for the court filed by Circuit Judge Karen
LeCraft Henderson.
Karen LeCraft Henderson, Circuit Judge: JoAnn Carpen-
ter, 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 ss 1-2501 et seq.
Carpenter specifically alleges that they retaliated by down-
grading 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 down-
grading 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 presi-
dent 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 dis-
crimination 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, Carpen-
ter 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 s 1-2525(a),1 against Fannie Mae alleg-
ing that it had retaliated against her for pursuing Carpenter I
by downgrading her performance rating and denying her a
promotion to senior vice president. See Carpenter v. Federal
Nat'l Mortgage Ass'n, No. 98-563 (D.D.C. Aug. 3, 1998)
(Carpenter II), JA 8-19. In response, Fannie Mae moved for
summary judgment, contending that: (1) it gave Carpenter a
lower rating because her performance was compared against
a larger pool of vice presidents than in the past and because
Julie St. John and Michael Williams, two senior vice presi-
dents in client departments, had criticized her work2 and (2) it
rejected Carpenter for the senior vice president position
__________
1 In relevant part, section 1-2525(a) states, "It shall be an
unlawful discriminatory practice to ... retaliate against ... any
person in the exercise ... of ... any right granted or protected
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).
2 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 pp 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
because it desired an attorney with litigation experience
(which she admittedly did not have). Carpenter countered
that Fannie Mae's motion was premature given the lack of
discovery. As to her rating, Carpenter argued that her past
evaluations and comments of other "clients" directly contra-
dicted the criticisms against her and therefore raised an issue
as to whether Kelly and Marra actually relied on the criti-
cisms in downgrading her. As to the promotion, Carpenter
argued that "litigation experience" had never been a prereq-
uisite for senior vice president and questioned whether Fan-
nie Mae had in fact relied on the criteria. Finally, Carpenter
argued that the September 1996 admonitions of Kelly and
Marra to give up her discrimination claims constituted direct
evidence of their intent to retaliate after her 1997 appeal and
therefore strengthened the inference that her downgrade and
nonselection were linked to her pursuit of Carpenter I.
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 relat-
ed 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 (3) 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 time-
ly appealed.
II.
Carpenter urges that the district court erred in granting
summary judgment because Fannie Mae allegedly retaliated
__________
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 to the business." Id.
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.3 Fannie Mae responds that the number of vice
presidents against whom Carpenter was rated increased from
eight to thirteen in 1997 as a result of reorganization, making
__________
3 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 (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 action 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 retalia-
tion 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, non-
retaliatory reasons. Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 258 (1981). If an employer meets its burden of
articulating a non-retaliatory 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 persuading the court that she has been the victim of
intentional discrimination." Id. The plaintiff can meet the burden
"either directly by persuading the court that a discriminatory
reason more likely motivated the employer or indirectly by showing
that the employer's proffered explanation is unworthy of credence."
Id. (citing McDonnell Douglas Corp., 411 U.S. at 804-05). If he
successfully shows that a retaliatory motive played a motivating
part in an adverse employment decision, the employer can never-
theless avoid liability by demonstrating by a preponderance of the
evidence that it would still have taken the same action absent
retaliatory motive. See Price Waterhouse v. Hopkins, 490 U.S. 228,
252-53 (1989); Berger v. Iron Workers Reinforced Rodmen, Local
201, No. 97-7019, 1999 WL 169431, at *12 (D.C. Cir. Mar. 30, 1999).
We review de novo the grant of summary judgment, applying the
same standard utilized by the lower court. See Transactive Corp.
v. United States, 91 F.3d 232, 236 (D.C. Cir. 1996).
the rating pool more competitive. Fannie Mae also cites
negative evaluations from Williams and St. Johns that con-
trast with the uniformly positive comments received by her
higher rated peers. These explanations provide legitimate,
nonretaliatory reasons for Carpenter's downgrade. See Bur-
dine, 450 U.S. at 257-58.
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 Fishbach v. District of Columbia Dep't of Correc-
tions, 86 F.3d 1180, 1183 (D.C. Cir. 1996) (absent "error too
obvious to be unintentional," court respects employer's "un-
fettered 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 (1993). Pre-1995 rat-
ings were done by other supervisors and, of the vice presi-
dents who received higher ratings than Carpenter in 1997,
only one had been compared to Carpenter previously, receiv-
ing higher ratings than she in two previous years. We also
find Carpenter's claim that St. John's and Williams's criti-
cisms 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 pp 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 evalua-
tion of her 1996 performance, which Marra wrote in March
1997 after his September 1996 comments and after she filed
Carpenter 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) (inter-
vening satisfactory rating defeats causal link).
Because Fannie Mae offered a legitimate nondiscriminatory
reason for not selecting Carpenter for the senior vice presi-
dent position--i.e., that Carpenter admittedly lacked the nec-
essary litigation experience--Carpenter was required to show
pretext by "demonstrat[ing] that the proffered reason was
not the true reason for the employment decision." Burdine,
450 U.S. at 256. Aside from Kelly's and Marra's September
1996 comments, the contentious nature of Carpenter I and the
cold shoulder treatment which purportedly followed, Carpen-
ter merely theorized that litigation experience was a "false
qualification" intended solely to explain away her nonselec-
tion. Although Carpenter contends that the Position De-
scription form left the criteria for senior vice president an
open issue, it clearly required that a "successful candidate"
have "substantial litigation or litigation management experi-
ence." Position Description, JA 59. Moreover, Fannie Mae
in fact based its hiring decision, at least in part, on the
applicants' litigation experience, giving final consideration
only to those candidates with significant litigation experience.
See SJA at 1-11.4 Because Carpenter failed to rebut Fannie
Mae's legitimate business reasons for the two challenged
__________
4 Carpenter argues for the first time on appeal that evidence of
the candidates' credentials included in their resumes was inadmissi-
ble 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).
actions, the district court properly granted summary judg-
ment to Fannie Mae. See Fishbach, 86 F.3d at 1183 (absent
pretext, "court must respect the employer's unfettered discre-
tion to choose among qualified candidates").
Carpenter alternatively sought remand for discovery under
Fed. R. Civ. P. 56(f) (allowing pre-summary judgment discov-
ery 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 Agen-
cy, 864 F.2d 859, 861 (D.C. Cir. 1989). "It is well settled that
[c]onclusory 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 mini-
mum, immaterial," Appellant's Br. at 32, a plainly conclusion-
ary assertion without supporting facts. Carpenter also al-
leged 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 Fishbach, 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 Presi-
dents 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 their contribu-
tions clearly exceeded that of their peers." JA 55. Carpen-
ter 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) discov-
ery). Instead, Carpenter supported her request for discovery
with undisputed facts--that senior vice presidents in the past
lacked litigation expertise and that the Legal Department
does not engage directly in litigation--which in themselves do
not create an inference of pretext. Accordingly, the district
court did not abuse its discretion in denying Carpenter's
discovery request. See Exxon Corp., 663 F.2d at 126 (Rule
56(f) ruling reviewed for abuse of discretion).
For the foregoing reasons, the district court's grant of
summary judgment to the Federal National Mortgage Associ-
ation is
Affirmed.