Gleklen, Amy v. Dem Cong Campgn Com

                  United States Court of Appeals

               FOR THE DISTRICT OF COLUMBIA CIRCUIT

       Argued November 22, 1999   Decided January 11, 2000 

                           No. 99-7041

                          Amy Gleklen, 
                            Appellant

                                v.

   Democratic Congressional Campaign Committee, Inc., et al., 
                            Appellees

          Appeal from the United States District Court 
                  for the District of Columbia 
                           (98cv00072)

     Roy W. Krieger argued the cause and filed the briefs for 
appellant.

     Barry J. Reingold argued the cause for appellees. With 
him on the brief was Kara M. Sacilotto.

     Before:  Williams, Sentelle, and Randolph, Circuit 
Judges.

     Opinion for the Court filed by Circuit Judge Randolph.

     Randolph, Circuit Judge:  This is an appeal from an order 
of the district court, Robertson, J., granting summary judg-
ment for the Democratic Congressional Campaign Committee 
on three counts of unlawful discrimination alleged by Amy 
Gleklen, a former employee. We affirm because Gleklen did 
not rebut the Committee's reasonable, nondiscriminatory ex-
planation for its employment decision.

                                I

     Gleklen worked as the Deputy Director of the Harriman 
Communications Center, an arm of the Democratic Congres-
sional Campaign Committee, shifting between full-time and 
part-time status as the needs of the Democratic Committee 
changed between campaign seasons.  In February 1997, 
shortly after Gleklen informed the Committee that she was 
pregnant with her third child, the Committee decided to 
embark on a more vigorous off-cycle member services pro-
gram which required it to hire additional staff and increase 
the work hours of the existing staff.  In early March 1997, 
the Democratic Committee requested Gleklen to resume full-
time employment in April.  Gleklen refused.  She preferred 
to continue working three days a week and wanted the 
Committee to reinstitute the job-sharing arrangement it had 
allowed the previous year in the event that more work was 
needed.  When Gleklen failed to report for work on April 1, 
she was fired and immediately replaced by a woman who was 
not pregnant.  In June 1997, Gleklen timely filed a complaint 
with the EEOC alleging that the Committee had violated the 
Pregnancy Discrimination Act, the D.C. Human Rights Act, 
and the Family and Medical Leave Act.  The EEOC respond-
ed with a "no reason to believe" letter on October 14, 1997, 
and Gleklen brought suit in federal district court.

     Applying the burden-shifting analysis for discrimination 
claims set forth in Aka v. Washington Hospital Center, 156 
F.3d 1284 (D.C. Cir. 1998) (en banc), the district court 
granted the Democratic Committee's motion for summary 
judgment because there was "no evidence from which a jury 
could reasonably find a causal link between defendants' April 

1997 request that plaintiff resume a full-time schedule and 
the impending birth of her child in August 1997."  Gleklen v. 
Democratic Congressional Campaign Comm., 38 F. Supp. 2d 
18, 21 (D.D.C. 1999).

                                II

     Title VII makes it "an unlawful employment practice for an 
employer to fail or refuse to hire or to discharge any individu-
al, or otherwise to discriminate against any individual with 
respect to his compensation, terms, conditions, or privileges 
of employment, because of such individual's sex...."  42 
U.S.C. s 2000e-2(a).  Congress passed the Pregnancy Dis-
crimination Act as an amendment to Title VII:  "[W]omen 
affected by pregnancy, childbirth or related medical condi-
tions shall be treated the same for all employment-related 
purposes ... as other persons not so affected but similar in 
their ability or inability to work...."  42 U.S.C. s 2000e(k).  
The D.C. Human Rights Act uses the same language.  See 
D.C. Code Ann. s 1-2505(b) (1981).  The Family and Medical 
Leave Act grants eligible employees twelve weeks of leave 
during any twelve-month period following the birth of a child, 
and further provides:  "It shall be unlawful for any employer 
to interfere with, restrain, or deny the exercise of or the 
attempt to exercise, any right provided under this subchap-
ter."  29 U.S.C. s 2615(a)(1).  Gleklen claims that the Demo-
cratic Committee violated each of these provisions.

     The burden-shifting analysis of McDonnell Douglas Corp. 
v. Green, 411 U.S. 792 (1973), is applicable to D.C. Human 
Rights Act claims.  See, e.g., Carpenter v. Federal Nat'l 
Mortgage Ass'n, 165 F.3d 69, 72 (D.C. Cir. 1999).  Although 
we have not considered the applicability of McDonnell Doug-
las to claims like Gleklen's under the Pregnancy Discrimina-
tion Act and the Leave Act, other circuits have concluded that 
McDonnell Douglas provides the proper framework for anal-
ysis of such claims.  See, e.g., Graham v. State Farm Mutual 
Ins. Co., 193 F.3d 1274, 1283 (11th Cir. 1999) (Leave Act);  
Chaffin v. John H. Carter Co., 179 F.3d 316, 319 & n.10 (5th 
Cir. 1999) (Leave Act);  Maldonado v. U.S. Bank, 186 F.3d 

759, 763 (7th Cir. 1999) (Pregnancy Discrimination Act);  
Kerzer v. Kingly Mfg., 156 F.3d 396, 400-01 (2d Cir. 1998) 
(Pregnancy Discrimination Act).  Given that the Pregnancy 
Discrimination Act and D.C. Human Rights Act provisions in 
question are identical, and in view of the general similarity of 
the Leave Act, the McDonnell Douglas approach offers a 
coherent method of evaluating the evidence for all three 
alleged violations.  For the most part, then, Gleklen's claims 
may be analyzed simultaneously.

     Under McDonnell Douglas, Gleklen had to establish a 
prima facie case of discrimination, at which point the Demo-
cratic Committee had to produce evidence articulating a 
legitimate, nondiscriminatory reason for its actions, after 
which Gleklen had to "produce substantial probative evidence 
that the proffered reason was not the true reason for the 
employment decision and that the real reason was [discrimi-
natory animus]."  Chaffin, 179 F.3d at 320;  see also Abra-
ham v. Graphic Arts Int'l Union, 660 F.2d 811, 815 (D.C. Cir. 
1981).

                                A

     On her Pregnancy Discrimination Act and D.C. Human 
Rights Act claims, Gleklen made out the requisite prima facie 
case:  she was pregnant, she was qualified, she was fired, she 
was replaced by a woman who was not pregnant, and her 
replacement performed Gleklen's former job while devoting 
at least some of her time to other responsibilities.1 See 
Pendarvis v. Xerox Corp., 3 F. Supp. 2d 53, 57 (D.D.C. 1998).2

__________
     1 Gleklen set forth additional allegations, unnecessary to mention.

     2 The Democratic Committee also argued that the Pregnancy 
Discrimination Act does not require employers to grant maternity 
leave;  that maternity leave must be given only if the employer 
overlooks comparable absences of non-pregnant employees;  that 
the Committee did not offer eight weeks of leave on either a paid or 
unpaid basis to employees who were not pregnant;  and that Gleklen 
therefore would not have a claim under the Act even if the 
Committee terminated her precisely to avoid providing her materni-
ty leave.  See Brief for Appellees at 26-30 (citing 29 C.F.R. 
s 1604.10(b);  Marshall v. American Hosp. Ass'n, 157 F.3d 520, 527 

     On her claim under the Leave Act, Gleklen had to show 
that she engaged in a protected activity under this statute;  
that she was adversely affected by an employment decision;  
and that the protected activity and the adverse employment 
action were causally connected.  See Chaffin, 179 F.3d at 319.  
As she describes her claim, it is essentially one of retaliation.3  
Temporal proximity is often found sufficient to establish the 
requisite causal connection for such claims.  See, e.g., King v. 
Preferred Technical Group, 166 F.3d 887, 893 (7th Cir. 1999).  
In this case, Gleklen's supervisor requested that she return to 
work full time only a few weeks after she disclosed her 
pregnancy.  These two events were sufficiently close in time 
to infer a causal nexus on the facts of this case.  Compare 
Kachmar v. Sungard Data Sys., Inc., 109 F.3d 173, 177-78 
(3d Cir. 1997);  Shirley v. Chrysler First, Inc., 970 F.2d 39, 
42-43 (5th Cir. 1992).  Accordingly, Gleklen appears to have 
met her burden of alleging facts from which a reasonable jury 
might infer a causal connection.

                                B

     Although Gleklen made out a prima facie case on each of 
her claims, she cannot prevail on any of them.  The Demo-
cratic Committee put forward reasonable and non-
discriminatory reasons for requiring Gleklen to work full time 
if she wanted to keep her job:  they were planning to launch a 

__________
(7th Cir. 1998);  Rhett v. Carnegie Ctr. Assocs., 129 F.3d 290, 296 
(3d Cir. 1997);  Troupe v. May Dep't Stores, 20 F.3d 734, 738 (7th 
Cir. 1994);  Pendarvis, 3 F. Supp. 2d at 57 n.3).  The Committee 
also argued that Abraham v. Graphic Arts Int'l Union, 660 F.2d at 
817, cited by Gleklen, does not support her position that the 
Pregnancy Discrimination Act gives her rights superior to those 
enjoyed by non-pregnant employees because Abraham employed 
"disparate impact" analysis, whereas Gleklen claims disparate treat-
ment.  Given our disposition of the case, it is not necessary for us to 
consider the questions these arguments pose.

     3 "She planned to engage in statutorily protected activity (i.e. 
maternity leave);  her employer took adverse action (she was fired);  
and there is evidence of a causal connection between these two 
events."  Brief for Plaintiff-Appellant at 24.

major new off-cycle initiative which required the full-time 
efforts of existing employees as well as the hiring of new 
ones.  Gleklen believes this was an elaborate pretext de-
signed to force her resignation, but she fell far short of 
rebutting the Committee's more plausible explanation for its 
actions.  See Aka, 156 F.3d at 1289.  She relies on four items 
of "evidence," all of which lack substance or otherwise fail to 
establish a "genuine issue as to any material fact."  Fed. R. 
Civ. P. 56(c).

     First, in her deposition, Gleklen testified that someone had 
informed her of a conversation in which Congressman Frost 
said to former Congresswoman Margolies-Mezvinsky that 
Gleklen was terminated because Gleklen, before her last 
pregnancy, had told the Democratic Committee that she was 
not going to have any more children. Gleklen's deposition is 
the only evidence of this conversation in the record, and it is 
not enough.

     The rather awkward language of Rule 56(e) of the Federal 
Rules of Civil Procedure provides that "an adverse party may 
not rest on mere allegations or denials of the adverse party's 
pleading, but the adverse party's response, by affidavits or as 
otherwise provided in this rule, must set forth specific facts 
showing that there is a genuine issue for trial." While a 
nonmovant is not required to produce evidence in a form that 
would be admissible at trial, the evidence still must be 
capable of being converted into admissible evidence.  The 
opening lines of the rule suggest as much:  "Supporting and 
opposing affidavits shall be made on personal knowledge, 
shall set forth such facts as would be admissible in evidence, 
and shall show affirmatively that the affiant is competent to 
testify to the matters stated therein."  See also Celotex Corp. 
v. Catrett, 477 U.S. 317, 324 (1986).  Otherwise, the objective 
of summary judgment--to prevent unnecessary trials--would 
be undermined.  See id. at 323-24 & n.5.  Verdicts cannot 
rest on inadmissible evidence.  Gleklen's evidence about the 
conversation is sheer hearsay;  she would not be permitted to 
testify about the conversation at trial.  See Fed. R. Evid. 801-
807.  It therefore counts for nothing.  See 10A Charles Alan 

Wright et al., Federal Practice and Procedure s 2722, at 
371-72 & n.11 (1998) (citing cases).

     Second, in her affidavit opposing summary judgment and in 
her deposition, Gleklen recounted a conversation in which 
Greg Speed--who was hired full time along with Todd Glass 
in March 1997 to handle the increased workload of the 
Democratic Committee's new initiative--said that he did not 
expect a significant increase in the Harriman Communica-
tions Center's workload until August 1997.  Even if true, 
Gleklen never suggested that Speed was in any manner 
involved in the decision to terminate her;  nor did she offer 
any evidence that Speed shared his views with the supervi-
sors who made that decision.  Moreover, the record contains 
several documents detailing the Democratic Committee's new 
initiative.  (The documents are under seal.)  Even if use of 
the Harriman Center's facilities did not rise appreciably 
before August 1997, clearly the efforts to generate increased 
work began well before Gleklen was terminated, directly 
supporting the Democratic Committee's contention that it 
anticipated an increased workload for the Harriman Center's 
staff.

     Third, Gleklen's affidavit purports to refute the Democratic 
Committee's statistics demonstrating increased activity at the 
Harriman Center between April and August 1997.  Whether 
the activity level actually increased is not the critical ques-
tion.  Gleklen needed to--but did not--refute the Democratic 
Committee's evidence showing that those in charge of the 
Harriman Center reasonably believed that its activity would 
increase when they asked Gleklen to resume a full-time 
schedule and later terminated her for rejecting that request.

     Fourth, Gleklen is mistaken in asserting that Susan Maiers, 
the woman who replaced her, only worked part time to fill the 
Deputy Director's duties.  The evidence shows that Maiers 
was working full time for the Democratic Committee Finance 
Office one month before Gleklen's termination and that Mai-
ers was performing the duties of the Harriman Center's 
business manager on a part-time basis until a replacement 
could be found. When Gleklen was terminated, Maiers left the 

Democratic Committee Finance Office and took over Glek-
len's post as Deputy Director full time, working nine-to-five, 
five days a week.  Maiers testified that she acted as the 
Deputy Director on a full-time basis, and performed the 
business manager functions part time--the opposite of Glek-
len's assertion.  This testimony further supports the Demo-
cratic Committee's contention that the Deputy Director's 
position required a full-time employee.  In any event, Gleklen 
did not rebut the Committee's evidence that it was making a 
good faith attempt at filling the business manager position 
while Maiers did double duty.

     The district court's summary judgment in favor of the 
Democratic Congressional Campaign Committee is therefore 
affirmed.