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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 10, 2002 Decided May 9, 2003
No. 01-5403
TONY MORGAN,
APPELLANT
v.
FEDERAL HOME LOAN MORTGAGE CORPORATION AND
MITCHELL DELK,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 98cv01397)
David A. Branch argued the cause and filed the briefs for
appellant.
Nancy R. Kuhn argued the cause for appellees. With her
on the brief were Diane Marshall Ennist and Kathy B.
Houlihan.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: SENTELLE, ROGERS, and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: The plaintiff in this case brought
suit against the Federal Home Loan Mortgage Corporation
and one of its officers, alleging that the corporation failed to
hire him for any of several positions because of his race and
in retaliation for his having filed a discrimination complaint
with the Equal Employment Opportunity Commission. The
district court granted the defendants’ motion for summary
judgment pursuant to Federal Rule of Civil Procedure 56,
and we affirm.
I
Plaintiff Tony Morgan, an African–American male, was
employed as Director, Executive Corporate Relations at the
Federal Home Loan Mortgage Corporation (‘‘Freddie Mac’’)
from January 17, 1995 to March 31, 1996. His employment
ended as a result of a reduction in force. In exchange for six
months of severance pay and other benefits, Morgan signed a
release of all ‘‘claims arising out of or relating in any way to
[his] employment relationship’’ prior to April 7, 1996, the
effective date of the release. J.A. at 203–04. Before and
after executing the release, the plaintiff applied for a number
of other positions at Freddie Mac, but was unsuccessful in
obtaining reemployment.
On December 11, 1996, Morgan filed a complaint with the
Equal Employment Opportunity Commission (EEOC), alleg-
ing, inter alia, that Freddie Mac’s failure to rehire him was
due to racial discrimination. After filing the complaint, Mor-
gan submitted several additional, also unsuccessful, applica-
tions for employment with the corporation.
On June 3, 1998, Morgan filed suit against Freddie Mac
and three of its officers in the United States District Court
for the District of Columbia. The plaintiff alleged that
Freddie Mac had refused to rehire him because of his race, in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e–2(a), and 42 U.S.C. § 1981. He also alleged, inter
3
alia, that the refusal was in retaliation for his having pressed
employment discrimination claims with the EEOC, in viola-
tion of Title VII, 42 U.S.C. § 2000e–3(a).1
On November 9, 2000, the district court granted a motion
to dismiss Morgan’s claims against two of the three individual
defendants. After extensive discovery, the remaining defen-
dants, Freddie Mac and its Vice President, Mitchell Delk,
moved for summary judgment pursuant to Federal Rule of
Civil Procedure 56. By that point, the plaintiff had narrowed
his claims to discrimination and retaliation in Freddie Mac’s
failure to offer him eight positions. The district court grant-
ed the defendants’ summary judgment motion regarding four
of those jobs because Morgan had been rejected for them
prior to the effective date of the 1996 release of claims.
Morgan v. Federal Home Loan Mortgage Corp., 172
F. Supp. 2d 98, 108 (D.D.C. 2001). As to the claims relating
to the four remaining positions, the court granted summary
judgment on the ground that Morgan had failed to establish a
prima facie case of discrimination or retaliation. Id. Only
the latter four positions are at issue on this appeal.
II
We review the district court’s grant of summary judgment
de novo. Waterhouse v. District of Columbia, 298 F.3d 989,
991 (D.C. Cir. 2002). Such a grant is appropriate if ‘‘ ‘there is
no genuine issue as to any material fact and TTT the moving
1 Title VII of the Civil Rights Act of 1964 makes it ‘‘an unlawful
employment practice for an employer to fail or refuse to hire TTT
any individual TTT because of such individual’s race [or] color.’’ 42
U.S.C. § 2000e–2(a). Section 1981 prohibits racial discrimination in
‘‘the making, performance, modification, and termination of con-
tracts, and the enjoyment of all benefits, privileges, terms, and
conditions of the contractual relationship.’’ 42 U.S.C. § 1981. Title
VII also makes it ‘‘an unlawful employment practice for an employ-
er to discriminate against any TTT applicant[ ] for employment TTT
because he has made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing’’ concerning
employment discrimination. 42 U.S.C. § 2000e–3(a).
4
party is entitled to a judgment as a matter of law.’ ’’
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)
(quoting Fed. R. Civ. P. 56(c)). A dispute is ‘‘genuine’’ only
‘‘if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party,’’ id. at 248, and a moving
party is ‘‘entitled to a judgment as a matter of law’’ if the
nonmoving party ‘‘fails to make a showing sufficient to estab-
lish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at
trial,’’ Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Because Morgan has no direct evidence that Freddie Mac
refused to hire him for any of the positions on account of his
race, we analyze those claims under the familiar framework
established in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802–05 (1973). See also Carter v. Duncan–Huggins,
Ltd., 727 F.2d 1225, 1232 (D.C. Cir. 1984) (applying the
McDonnell Douglas framework to § 1981 claims). Under
that framework, ‘‘the plaintiff must [first] establish a prima
facie case of discrimination.’’ Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 142 (2000). The plaintiff can
satisfy that initial burden by showing ‘‘(i) that he belongs to a
racial minority; (ii) that he applied and was qualified for a job
for which the employer was seeking applicants; (iii) that,
despite his qualifications, he was rejected; and (iv) that, after
his rejection, the position remained open and the employer
continued to seek applicants from persons of complainant’s
qualifications.’’ McDonnell Douglas, 411 U.S. at 802. As the
Supreme Court has explained, this framework ‘‘demand[s]
that the alleged discriminatee demonstrate at least that his
rejection did not result from the two most common legitimate
reasons on which an employer might rely to reject a job
applicant: an absolute or relative lack of qualifications or the
absence of a vacancy in the job sought.’’ International Bhd.
of Teamsters v. United States, 431 U.S. 324, 358 n.44 (1977).
If the plaintiff establishes his prima facie case, the defen-
dant then bears the burden of ‘‘ ‘produc[ing] evidence that the
plaintiff was rejected, or someone else was preferred, for a
legitimate, nondiscriminatory reason.’ ’’ Reeves, 530 U.S. at
142 (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450
5
U.S. 248, 254 (1981)). If the defendant produces such evi-
dence, ‘‘the McDonnell Douglas framework — with its pre-
sumptions and burdens — disappear[s], and the sole remain-
ing issue [is] discrimination vel non.’’ Id. at 142–43 (internal
quotation marks and citations omitted). At that point, to
‘‘survive summary judgment the plaintiff must show that a
reasonable jury could conclude that [he] was [rejected] for a
discriminatory reason.’’ Waterhouse, 298 F.3d at 992 (citing
Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1290 (D.C. Cir.
1998)). Although the McDonnell Douglas framework shifts
‘‘intermediate evidentiary burdens’’ between the parties,
‘‘ ‘[t]he ultimate burden of persuading the trier of fact that
the defendant intentionally discriminated against the plaintiff
remains at all times with the plaintiff.’ ’’ Reeves, 530 U.S. at
143 (quoting Burdine, 450 U.S. at 253).
This framework also governs our analysis of Morgan’s
claims of unlawful retaliation in violation of 42 U.S.C.
§ 2000e–3(a). See Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C.
Cir. 1985); Williams v. Boorstin, 663 F.2d 109, 116 (D.C. Cir.
1980). The only difference is the phrasing of the prima facie
case: ‘‘In order to establish a prima facie case of retaliation, a
plaintiff must show: 1) that [he] engaged in a statutorily
protected activity; 2) that the employer took an adverse
personnel action; and 3) that a causal connection existed
between the two.’’ Mitchell, 759 F.2d at 86 (internal quota-
tion marks omitted). Where, as here, the plaintiff claims that
the retaliation took the form of a failure to hire, the plaintiff
must also show: 4) that he applied for an available job; and
5) that he was qualified for that position. Id. at 86 n.5;
Williams, 663 F.2d at 116 & n.43.
III
On appeal, Morgan has confined his claims to Freddie
Mac’s allegedly unlawful failure to offer him four positions for
which Morgan applied after the period covered by his 1996
release. We consider the first three of those positions in this
Part, and conclude that Morgan failed to make out a prima
6
facie case of discrimination or retaliation as to any of them.
We consider the fourth position in Part IV below.
In letters dated July 3, 1997, Morgan applied for three jobs
previously posted by Freddie Mac: 1) Director, Business
Support; 2) Director, Business Strategies; and 3) Director,
Issues Management. With respect to his application for the
first of these — Director, Business Support — Freddie Mac
responded with a letter advising Morgan that the position was
currently on hold and that the corporation had stopped all
recruitment. Clarke Letter (July 18, 1997) (J.A. at 289). In
support of its motion for summary judgment, Freddie Mac
proffered evidence that it had suspended recruitment for the
position a month before Morgan applied, and that it was
never filled. Gertz E-mail Messages (June 6, 1997) (J.A. at
553–56); Clarke Decl. at ¶ 5 (J.A. at 550).
Morgan offered no evidence to rebut the corporation’s
assertion that it had suspended recruitment for the Business
Support directorship before he applied. He did dispute the
contention that Freddie Mac never filled the position, noting
that in the fall of 1997, a woman named Ann Herrington was
interviewed for and in 1998 accepted a job, entitled ‘‘Director,
Strategic Planning,’’ in the same department. But the plain-
tiff offered no evidence to contradict the corporation’s proof
that this was a completely different position, other than to
point to the fact that the job description for Director, Busi-
ness Support included the term ‘‘strategic planning’’ in the
list of critical skills and experience needed for the position —
albeit not in the list of the position’s responsibilities. J.A. at
284–85. Having thus failed to raise a genuine issue that the
Business Support position for which he applied was one ‘‘for
which the employer was seeking applicants,’’ McDonnell
Douglas, 411 U.S. at 802, Morgan failed to establish a prima
facie case of either discrimination or retaliation, and summary
judgment on this claim was therefore appropriate. See Inter-
national Bhd. of Teamsters, 431 U.S. at 358 n.44; Williams,
663 F.2d at 116 n.43.
The second position for which Morgan applied on July 3,
1997, was entitled ‘‘Director, Business Strategies.’’ In its
7
letter responding to Morgan’s application, Freddie Mac ad-
vised that the job was open only to internal candidates.
Morrow Letter (July 18, 1997) (J.A. at 290). Morgan does
not argue, and there is no evidence to suggest, that this
qualification was other than bona fide or that the corporation
imposed it as a means of excluding Morgan or other minority
applicants from consideration. Indeed, the requirement that
candidates come from within the company was contained in
the corporation’s original notice of availability, which was
posted two months before Morgan applied. J.A. at 395.
Morgan does contend that, despite the stated qualification,
Freddie Mac did not limit its consideration to internal candi-
dates. There is no evidence, however, to support this claim.
Morgan points to a ‘‘resume distribution’’ cover sheet, which
shows that on May 1, 1997, the corporation’s human resources
department forwarded an external candidate’s r´sum´ to Vice
e e
President Delk, the hiring manager for the Business Strate-
gies position (as well as for other jobs not at issue here). See
J.A. at 315. But that r´sum´ was received and forwarded
e e
before the Business Strategies position was posted, compare
id. at 315, with id. at 395; the external applicant did not
apply for any specific position, see id. at 315, 317; and the
r´sum´ was not forwarded to Delk with reference to any
e e
particular job opening, see id. at 315. Moreover, Delk re-
sponded that he was not interested, see id., and the only other
person Morgan contends Freddie Mac considered for the
position, a lawyer in its legal division, plainly was an internal
candidate. See id. at 352, 428–29.2 Because Morgan thus
provided no evidence that he met a bona fide qualification for
the Business Strategies position, he failed to establish a
prima facie case of discrimination or retaliation, and summary
judgment was again appropriate. See International Bhd. of
Teamsters, 431 U.S. at 358 n.44; Mitchell, 759 F.2d at 86 n.5;
Williams, 663 F.2d at 116 & n.41.
The final position for which Morgan applied on July 3, 1997,
was that of Director, Issues Management. In response,
2The position of Director, Business Strategies was never filled
and was ultimately cancelled. Delk Dep. at 33 (J.A. at 351).
8
Freddie Mac told Morgan that the hiring decision had already
been made. See Morrow Letter (J.A. at 290). In support of
its motion for summary judgment, the corporation offered the
testimony of the hiring manager for that job, Ann Schnare,
who averred that she had filled the post by making two hires
(one part-time, one full-time) in June, before Morgan applied.
J.A. at 195. (The vacancy announcement had been published
two months earlier, in April 1997. Id. at 397.) Morgan’s
principal response is to cite a letter from Schnare to one of
those individuals, Susan Gates, that was dated July 14, 1997.
Id. at 325. Contrary to Morgan’s contention, however, the
letter does not offer Gates the position, but rather confirms
the corporation’s earlier ‘‘offer and your [Gates’] acceptance.’’
Id. The letter is thus consistent with Schnare’s testimony
that the offer and acceptance took place in June, and Morgan
offers nothing to call that testimony into question.3 Accord-
ingly, the plaintiff has for a third time failed to establish a
critical element of a prima facie case of discrimination or
retaliation: the existence of a vacancy in the position for
which he applied. See International Bhd. of Teamsters, 431
U.S. at 358 n.44; Williams, 663 F.2d at 116 n.43.
IV
In November 1997, the position of Director, Issues Man-
agement once again became open.4 In December, without
advertising the job, Freddie Mac offered it to Ann Herring-
ton, a white female who was working at the General Electric
3 Morgan also contends that Freddie Mac continued to seek
applicants for the Issues Management position after Morgan sub-
mitted his application, citing an application that Ann Herrington
submitted on July 14, 1997. J.A. at 320. But that document
establishes nothing more than that Morgan was not the only person
who applied for the opening after it was filled.
4Freddie Mac explained that the job became available because
Gates, the part-time incumbent, had become responsible for writing
speeches for Freddie Mac’s corporate communications group and
was no longer able to fulfill her Issues Management responsibilities.
Schnare Decl. ¶¶ 5–7 (J.A. at 569–70).
9
Company at the time. Herrington turned the offer down
(accepting a different position instead), and Freddie Mac
ultimately eliminated the office altogether as part of a reorga-
nization the following March.5 Morgan points out that both
he and Herrington originally applied for the Issues Manage-
ment job at the same time, in July 1997,6 and contends that
Freddie Mac’s failure to offer him the position that December
constituted unlawful discrimination and retaliation.7
Because there was a vacancy at the time Freddie Mac
made the offer to Herrington, and because Herrington was
herself an external candidate, Morgan’s prima facie case
regarding this claim does not suffer from the defects that we
have identified with respect to the July 1997 positions. Al-
though Freddie Mac contends that there are other problems
with Morgan’s prima facie case concerning the November
1997 opening, we need not resolve that dispute because the
corporation also proffered a nondiscriminatory reason for not
considering Morgan at that time: namely, that it was un-
aware that he was still interested. As the Supreme Court
has made clear, once a defendant has proffered such a
nondiscriminatory explanation, it has ‘‘done everything that
would be required of [it] if the plaintiff had properly made out
a prima facie case.’’ United States Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 715 (1983). At that point,
‘‘whether the plaintiff really did so is no longer relevant,’’ and
the only question is ‘‘whether ‘the defendant intentionally
discriminated against the plaintiff.’ ’’ Id. at 715 (quoting
Burdine, 450 U.S. at 253); see Waterhouse, 298 F.3d at 993
n.6. On that question, Morgan bears the ‘‘ ‘burden of show-
ing that a reasonable jury could conclude’ ’’ that Freddie Mac
failed to offer him the position out of discriminatory or
5The plaintiff does not assert that the cancellation of the position
was due to discriminatory or retaliatory animus.
6 See supra note 3.
7 Morgan describes the Issues Management directorship as a
single position, for which he was twice rejected. Freddie Mac
contends that there were two separate positions. In our view,
nothing turns on this distinction.
10
retaliatory animus. Waterhouse, 298 F.3d at 993 (quoting
Aka, 156 F.3d at 1290).
Morgan has failed to satisfy that burden. Freddie Mac
explained that, although both Morgan and Herrington initially
applied for the Issues Management directorship in July 1997,
the corporation was not aware that Morgan remained inter-
ested after he was informed in mid–July that the position had
been filled. Herrington, by contrast, repeatedly expressed
her interest later that fall. Thus, when the position again
became available in November, the corporation knew that
Herrington was interested but did not know that Morgan
was. Schnare Dep. at 60–62 (J.A. at 196, 533–34). A plaintiff
may, of course, ‘‘attempt to establish that he was the victim of
intentional discrimination ‘by showing that the employer’s
proffered explanation is unworthy of credence.’ ’’ Reeves, 530
U.S. at 143 (quoting Burdine, 450 U.S. at 256). But in the
district court the plaintiff offered no evidence to rebut Fred-
die Mac’s contention that it was unaware of his interest in
late 1997, and his appellate briefs do not even allege that this
contention was false.8
In addition to showing that an employer’s proffered expla-
nation is unworthy of belief, a plaintiff may submit other
evidence of the employer’s unlawful animus in a bid to avoid
summary judgment. See Reeves, 530 U.S. at 148–49; Bur-
dine, 450 U.S. at 256; Aka, 156 F.3d at 1289.9 Although
8 At oral argument, Morgan did contend that he had in fact made
his interest known in the fall of 1997. But he offered no evidentiary
support for that assertion, and appellate argument is in any event
too late in the proceedings to controvert the issue. See Frito–Lay,
Inc. v. Willoughby, 863 F.2d 1029, 1036 (D.C. Cir. 1988) (holding
that in reviewing summary judgment, the court of appeals’ ‘‘sole
and limited task is to assess with care the record before the District
Court at the time it granted [the motion],’’ and may not consider
evidence proffered for the first time on appeal (internal quotation
marks omitted)).
9A plaintiff may also rely on the evidence used to establish his
prima facie case. See Reeves, 530 U.S. at 143; Waterhouse, 298
F.3d at 992–93; Aka, 156 F.3d at 1289. Here, however, Morgan
11
Morgan does not frame the argument in this way, we have
considered the only two pieces of evidence that might be
relevant in this regard. First, Morgan’s brief alludes to a
racially degrading e-mail sent out by a single Freddie Mac
employee. But Morgan does not allege that the offending
employee had any role whatsoever in deciding whether to hire
him. See Hall v. Giant Food, Inc., 175 F.3d 1074, 1077, 1079–
80 (D.C. Cir. 1999) (holding that evidence of a discriminatory
statement by an individual uninvolved in the challenged em-
ployment decision is insufficient to defeat summary judg-
ment). Second, Morgan notes that, in response to his EEOC
complaint, the Commission issued a determination of reason-
able cause to believe that Freddie Mac had discriminated
against him. J.A. at 280–82; see 42 U.S.C. 2000e–5(b) (re-
quiring the Commission to determine whether ‘‘there is rea-
sonable cause to believe that [an unlawful employment prac-
tice] charge is true’’). But the EEOC determination does not
indicate whether it covers Morgan’s claim regarding the
November 1997 Issues Management position, and it is doubt-
ful that it does since Morgan last filed EEOC charges in April
1997, see Appellant’s Br. at 25, well before he applied for any
of the openings at issue on this appeal. Moreover, the
determination’s conclusory sentences are insufficient, stand-
ing alone against Freddie Mac’s unrebutted nondiscriminato-
ry explanation, to satisfy Morgan’s ‘‘burden of showing that a
reasonable jury could conclude’’ that he was not offered the
Issues Management position on account of his race or dis-
crimination complaint, Aka, 156 F.3d at 1290. See Coleman
v. Quaker Oats Co., 232 F.3d 1271, 1283–84 (9th Cir. 2000);
Goldberg v. B. Greene & Co., 836 F.2d 845, 848 (4th Cir.
1988).10
presented (at best) a bare bones prima facie case that alone could
not constitute ‘‘sufficient evidence for a reasonable factfinder to
reject the employer’s nondiscriminatory explanation for its decision’’
or ‘‘to conclude that the employer unlawfully discriminated.’’
Reeves, 530 U.S. at 140, 148.
10Moreover, the Statement of Genuine Issues filed by Morgan in
the district court cited the EEOC letter only in support of his
separate claim that Freddie Mac had created a hostile work envi-
12
V
Morgan’s claims that Freddie Mac unlawfully rejected him
for three positions in July 1997 fail because he cannot ‘‘dem-
onstrate at least that his rejection did not result from the two
most common legitimate reasons on which an employer might
rely to reject a job applicant: an absolute or relative lack of
qualifications or the absence of a vacancy in the job sought.’’
International Bhd. of Teamsters, 431 U.S. at 358 n.44. His
contention that Freddie Mac unlawfully failed to offer him a
position in late 1997 founders upon his failure to provide any
evidence that the corporation’s lawful explanation for not
offering him the post was false, or any other evidence from
which a reasonable jury could conclude that he was not hired
because of racial discrimination or retaliation. Accordingly,
the district court properly granted defendants’ motion for
summary judgment, and the decision of that court is there-
fore
Affirmed.
ronment, a claim that plaintiff has not raised on this appeal. J.A. at
380–81.