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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 10, 2004 Decided October 29, 2004
No. 01-7203
CYNTHIA JACOBS CARTER,
APPELLANT
v.
GEORGE WASHINGTON UNIVERSITY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 99cv03134)
Karl W. Carter, Jr. argued the cause and filed the briefs
for appellant. Nathaniel H. Speights entered an appearance.
Karen A. Khan argued the cause and filed the brief for
appellee.
Before: SENTELLE, TATEL, and ROBERTS, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
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
TATEL, Circuit Judge: George Washington University de-
nied appellant, an African American born in 1951, promotions
to all three positions she applied for over the course of a year.
Resigning from GW, appellant sued, claiming race discrimina-
tion under Title VII of the Civil Rights Act of 1964 and 42
U.S.C. § 1981, age discrimination under the Age Discrimina-
tion in Employment Act of 1967, retaliation, constructive
discharge, and breach of contract. Appellant’s trial counsel,
however, conducted virtually no discovery, and GW moved for
summary judgment, which the district court granted on all
counts. Seeing insufficient evidence in the record from which
a jury could find in appellant’s favor, we affirm.
I.
After beginning a job at appellee George Washington Uni-
versity, appellant Cynthia Carter received three promotions
over five years while earning a master’s degree and pursuing
a Ph.D. From 1994 onward, Carter worked as Director of
Reunions and Events in the Alumni Relations Office. Ac-
cording to Carter, because she spoke out about what she
considered discriminatory treatment within that office, her
relationship with Michael Worth, GW’s Vice President for
Development and Alumni Affairs, began deteriorating.
In 1997 and 1998, Carter applied for the positions of
Executive Director of Alumni Relations, Director of Develop-
ment at Mount Vernon College (a former women’s college
now owned by GW), and Director of Corporate and Founda-
tion Relations. She obtained none of these promotions. Car-
ter then resigned, taking a higher-paying job at Howard
University.
Following the second promotion denial, Carter filed a com-
plaint with the Equal Employment Opportunity Commission,
which she later amended to cover the third denial. When the
EEOC chose not to pursue the complaint, Carter sued GW in
the United States District Court for the District of Columbia,
raising claims based on Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e-2000e(16); 42 U.S.C. § 1981; the
Age Discrimination in Employment Act of 1967 (‘‘ADEA’’), 29
3
U.S.C. §§ 621-634; and common law. Specifically, she
claimed race discrimination regarding all three promotion
denials, age discrimination regarding the first two denials,
retaliation regarding the last two denials, retaliation regard-
ing an adverse evaluation, constructive discharge, and breach
of contract.
Despite what the district court termed ‘‘ample opportunity
to conduct discovery,’’ Carter’s trial counsel (she is now
represented by different counsel) deposed no witnesses,
served no interrogatories, and requested no admissions. Car-
ter v. George Washington Univ., 180 F. Supp. 2d 97, 107
(D.D.C. 2001); Carter v. George Washington Univ., No. 99-
3134 (D.D.C. May 17, 2001). At the very end of the discovery
period, Carter’s counsel did ask GW to produce certain
documents, but because he failed to comply with the Federal
Rules of Civil Procedure in submitting this request, ‘‘discov-
ery TTT ended and plaintiff [had] taken no discovery whatso-
ever.’’ Carter, No. 99-3134 (D.D.C. May 17, 2001). GW then
moved for summary judgment. As part of her opposition,
Carter attached her own affidavit, but submitted no sworn
statements from any one else. Claiming that Carter’s affida-
vit included ‘‘inadmissible hearsay, speculation and conclu-
sions,’’ GW moved to strike numerous paragraphs. Though
the district court did not address GW’s motion to strike, it
granted GW’s motion for summary judgment on all counts
without referring to Carter’s hearsay statements. See 180 F.
Supp. 2d at 99-102, 111. The district court later denied
Carter’s motion for reconsideration. Carter v. George Wash-
ington Univ., No. 99-3134 (D.D.C. Aug. 18, 2003).
II.
Before addressing the merits of Carter’s appeal, we consid-
er GW’s motion in this court to strike several of Carter’s
exhibits and those parts of her opening brief that reference
them. Specifically, GW argues that certain pages from Car-
ter’s deposition and the university’s personnel manual were
never presented to the district court and thus cannot be part
of the record on appeal. Conceding that her lawyer failed to
4
file these documents in opposition to GW’s motion for sum-
mary judgment, Carter insists that counsel did file them as
attachments to her motion for reconsideration. GW responds
that even were this true, Carter may not have a ‘‘second bite
at the apple’’ by including in her motion for reconsideration
evidence which she could have submitted to the district court
prior to summary judgment.
We need not consider GW’s latter argument, for our review
of the district court’s docket sheet and file convinces us that
Carter’s trial counsel never filed the disputed documents as
attachments to the motion for reconsideration, although the
motion itself made reference to them. This circuit will not
normally consider evidence that a party never presented to
the district court. Frito-Lay, Inc. v. Willoughby, 863 F.2d
1029, 1035-36 (D.C. Cir. 1988); see Fed. R. App. P. 10(a)
(describing the composition of the record on appeal). To be
sure, in Eureka Investment Corp. v. Chicago Title Insurance
Co., 743 F.2d 932, 945 n.55 (D.C. Cir. 1984), we treated as
part of the record an exhibit never formally moved into
evidence in the district court, but we did so because all
parties and the district court treated the exhibit as evidence.
In this case, by contrast, GW objected to the documents from
the first possible moment, and the district court never men-
tioned them in its denial of Carter’s motion for reconsidera-
tion, Carter, No. 99-3134 (D.D.C. Aug. 18, 2003).
We therefore grant GW’s motion to strike and will disre-
gard the disputed exhibits in the remainder of this opinion.
III.
This brings us, then, to Carter’s challenges to the district
court’s entry of summary judgment for GW. As usual, we
review a district court’s grant of summary judgment de novo
and will affirm only if, viewing the evidence in the light most
favorable to Carter and drawing all reasonable inferences
accordingly, we conclude that no reasonable jury could reach
a verdict in Carter’s favor. See Holbrook v. Reno, 196 F.3d
255, 259-60 (D.C. Cir. 1999); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986).
5
Because Carter never claimed in the district court, as she
does here, that the record contains direct evidence of discrim-
ination, she has waived this argument. See Ben-Kotel v.
Howard Univ., 319 F.3d 532, 535 (D.C. Cir. 2003) (finding
direct-evidence argument waived when not raised below).
We will therefore evaluate her claims under the burden-
shifting framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Under McDonnell Douglas, in order to
establish a prima facie case for a discrimination claim, the
plaintiff must show that (1) she ‘‘belongs to a’’ protected class;
(2) she ‘‘applied and was qualified for a job for which the
employer was seeking applicants’’; (3) ‘‘despite [her] qualifi-
cations, [she] was rejected’’; and (4) ‘‘after [her] rejection, the
position remained open and the employer continued to seek
applicants from persons of [her] qualifications.’’ McDonnell
Douglas, 411 U.S. at 802. For a retaliation claim, the plain-
tiff must show that ‘‘(1) she engaged in a statutorily protected
activity; (2) she suffered an adverse employment action; and
(3) there is a causal connection between the two.’’ Taylor v.
Small, 350 F.3d 1286, 1292 (D.C. Cir. 2003). ‘‘Where, as
here, the plaintiff claims that the retaliation took the form of
a failure to hire, the plaintiff must also show: 4) that [she]
applied for an available job; and 5) that [she] was qualified
for that position.’’ Morgan v. Fed. Home Loan Mortg. Corp.,
328 F.3d 647, 651 (D.C. Cir. 2003).
If the plaintiff satisfies her prima facie case, then the
employer must ‘‘produce admissible evidence that, if believed,
would establish that [its] action was motivated by a legiti-
mate, nondiscriminatory reason.’’ Teneyck v. Omni Shore-
ham Hotel, 365 F.3d 1139, 1151 (D.C. Cir. 2004). Once the
employer has met this burden of production, the burden-
shifting framework disappears, and a court reviewing sum-
mary judgment looks to whether a reasonable jury could infer
intentional discrimination or retaliation from all the evidence,
including ‘‘(1) the plaintiff’s prima facie case; (2) any evidence
the plaintiff presents to attack the employer’s proffered ex-
planation for its action; and (3) any further evidence of
discrimination that may be available to the plaintiff (such as
independent evidence of discriminatory statements or atti-
6
tudes on the part of the employer).’’ Waterhouse v. District
of Columbia, 298 F.3d 989, 992-93 (D.C. Cir. 2002) (quoting
Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir.
1998) (en banc)) (internal quotation marks omitted); see also
Kidd v. District of Columbia, 206 F.3d 35, 46 (D.C. Cir. 2000).
Because the McDonnell Douglas framework governs all of
Carter’s Title VII, ADEA, and 42 U.S.C. § 1981 claims, Hall
v. Giant Food, Inc., 175 F.3d 1074, 1077 (D.C. Cir. 1999)
(applying framework to ADEA claims); Berger v. Iron Work-
ers Reinforced Rodman Local, 843 F.2d 1395, 1412 n.7 (D.C.
Cir. 1998) (applying framework to § 1981 claims), we shall
apply it to each of her three promotion denials in turn.
Executive Director of Alumni Relations
When GW’s Executive Director of Alumni Relations re-
signed in 1997, Carter applied for the position along with
many other candidates. Michael Worth, Vice President for
Development and Alumni Affairs, appointed a ten-person
search committee to review applications, interview candidates,
and then recommend at least three finalists to him for the
final decision. Joe Hall, Associate Vice President for Univer-
sity Development, served as the nonvoting committee chair;
the committee also had four alumni and five administrators,
including two African Americans. The committee narrowed
the field and interviewed only five candidates: Carter, two
white men under age forty, and two white women. It recom-
mended only the four white candidates to Worth, who ulti-
mately picked one of the men, Keith Betts. Betts had
recently received a Ph.D. in Higher Education Administration
and, like Carter, had worked as a director in the Alumni
Relations Office since 1994. He had started working there a
few months after Carter and occupied a lower salary grade.
According to Joe Hall, the committee decided against rec-
ommending Carter for several reasons, including poor inter-
viewing skills and lack of qualifications. Most committee
members ranked her last. During her deposition Carter
testified that a few weeks after the interview, she sought out
an African-American committee member for advice, and that
7
member suggested that she adopt a new approach to inter-
views.
Carter filed her complaint with the EEOC more than 180
days after GW’s decision to select Betts and more than 240
days after learning that the committee had declined to send
her name forward to Worth. Asserting that Title VII re-
quires the filing of complaints within 180 days of the time the
employee learns of the challenged employment action, GW
argues that Carter’s claims are untimely. But 29 C.F.R.
§ 1601.13(a)(4)(ii)(A) provides that employees have up to 300
days to file where a worksharing agreement exists between
the EEOC and a local fair employment practices agency.
Since the EEOC had such an agreement with the D.C. Office
of Human Rights at the time of Carter’s complaint, see Pl.’s
Ex. 14, J.A., vol. 1, tab 14, Carter had up to 300 days to file
with the Commission. By any count, she met this deadline,
thus preserving her right to sue.
As GW concedes, Carter has established a prima facie case
under McDonnell Douglas for both race and age discrimina-
tion. An African American over forty, Carter belongs to two
protected classes; she possessed the qualifications identified
as necessary for the position in GW’s job description; and the
committee rejected her while advancing four other applicants.
To survive summary judgment, however, she must also pres-
ent evidence to rebut GW’s proffered legitimate nondiscrimi-
natory reason that she interviewed poorly.
We review subjective considerations like GW’s given reason
with ‘‘caution,’’ since employers can easily use such criteria to
‘‘mask discrimination.’’ See Aka v. Washington Hosp. Ctr.,
156 F.3d 1284, 1298 (D.C. Cir. 1998) (en banc). In Aka, for
example, the employer offered the plaintiff’s lack of enthusi-
asm as a basis for the decision not to hire, but the plaintiff
claimed that he ‘‘expressed enthusiasm at his interview’’ and
introduced corroborating evidence suggesting high motiva-
tion. Id. at 1297-98. Specifically, Aka presented evidence
that he had volunteered at the Washington Hospital Center in
hopes of getting hired, that he had applied for numerous
other jobs at the hospital, and that in a related hiring dispute
8
an arbitrator had described him as ‘‘highly intelligent and
motivated.’’ Id. at 1298. Based on this evidence, we found
that a reasonable jury could disbelieve the employer’s prof-
fered reason for refusing to hire Aka. Id. at 1298-99.
Carter’s situation differs quite significantly from Aka’s.
She neither claimed that her interview went well nor offered
a sufficiently concrete description of her interview from which
we might infer that it did. Indeed, to rebut GW’s proffered
reason, she offers only one admissible piece of evidence: the
affidavit of Dr. Graeme Baxter, Executive Dean of GW’s
Mount Vernon campus, which described Carter as seeming
‘‘very professional’’ in an interview conducted several months
later for a different job. In combination with other evidence,
this fact might well prove useful for rebutting GW’s reason,
as did Aka’s evidence that an arbitrator thought highly of
him. Standing alone, however, the affidavit falls far short, for
we cannot see how a reasonable jury could use a single
positive description of Carter’s behavior during a job inter-
view to infer that she interviewed well during a different
interview conducted by different decision-makers months ear-
lier.
In her affidavit, Carter states that while two of the other
candidates told her that the committee asked them only five
or six questions, the committee asked her around nineteen
questions. We have no need to consider whether such evi-
dence could counter GW’s proffered nondiscriminatory rea-
son, however, because Carter’s trial counsel failed to depose
any of the candidates or committee members, and we cannot
consider inadmissible hearsay evidence presented by one
party where, as here, the other party objected and moved to
strike. Commercial Drapery Contractors, Inc. v. United
States, 133 F.3d 1, 7 (D.C. Cir. 1998); see also Fed. R. Civ. P.
56(e).
In short, Carter presents no admissible evidence from
which a reasonable jury could infer that GW’s claim that she
interviewed poorly was pretextual. Given this, we have no
need to address whether she can rebut GW’s second nondis-
9
criminatory reason—that the committee found her less quali-
fied than other candidates.
Finally, we note that Carter has offered very little other
evidence that the committee might harbor discriminatory
animus. While she makes factual allegations which, if true,
might suggest discriminatory intent on the part of Michael
Worth, he was not a decision-maker at the committee level,
nor does Carter suggest that he exercised discriminatory
animus in selecting the committee members. Indeed, re-
sponding to GW’s specific interrogatories, Carter named none
of the committee’s voting members as discriminatory actors;
she named only Keith Betts, Joe Hall, and Michael Worth.
Because no reasonable jury could find sufficient evidence to
infer intentional discrimination from the evidence before us,
the district court correctly granted summary judgment to
GW on Carter’s race and age discrimination claims related to
this promotion denial.
Director of Development
In the spring of 1998, Carter applied for the position of
Director of Development at GW’s recently absorbed Mount
Vernon campus. GW sought to hire a director who would
work with Baxter to identify, cultivate, and solicit major gifts.
The job description called for a bachelor’s degree, with a
‘‘master’s degree TTT preferred,’’ and a minimum six years of
fundraising experience. Baxter and Hall interviewed Carter
and two other applicants, including Sarah Morgan. A thirty-
three-year-old white woman, Morgan worked as GW’s Associ-
ate Director of Development for Major Gifts and had at least
nine years of experience in fundraising, including a year spent
working at a women’s college. When Baxter identified Mor-
gan as the best candidate, Hall agreed to hire her. According
to Baxter, she selected Morgan because of Morgan’s experi-
ence managing fund-raising campaigns and working at a
women’s college. Carter was ‘‘not a viable candidate,’’ Baxter
concluded, because she ‘‘had no pertinent experience working
with potential major donors, and had never directed a fund-
raising campaign of any size, let alone a major fund-raising
10
campaign for a college or university.’’ No evidence suggests
that Baxter knew of Carter’s prior complaints about discrimi-
nation.
Carter alleges that GW rejected her for this promotion due
to her race and age, and in retaliation for her allegations that
she had experienced discrimination in her earlier promotion
denial. The district court found that Carter had not estab-
lished a prima facie case for these claims because she failed to
show that she and Morgan were ‘‘similarly qualified for the
position.’’ 180 F. Supp. 2d at 107. To make out a prima facie
case in this circuit, however, a plaintiff need not show that
she is as qualified as the successful applicant, only that she is
qualified ‘‘relative to the entire pool from which applications
are welcome.’’ Mitchell v. Baldrige, 759 F.2d 80, 85 (D.C.
Cir. 1985). We need not determine whether Carter would
meet the prima facie requirements for qualifications under
the Mitchell standard, however, for she has failed to present
evidence from which a reasonable fact-finder could infer that
GW’s proffered reason for hiring Morgan over Carter was
pretextual. See Morgan, 328 F.3d at 653-54 (not addressing
whether plaintiff met prima facie requirements where plain-
tiff could not rebut legitimate nondiscriminatory reason).
Nor, for the same reason, need we address whether Carter
has made out a prima facie case for retaliation. If she has
failed to provide evidence which could lead a jury to doubt
GW’s legitimate nondiscriminatory reason—that it hired Mor-
gan because she was the better candidate—then Carter can-
not survive summary judgment in any event.
Under Aka, ‘‘[i]f a factfinder can conclude that a reasonable
employer would have found the plaintiff to be significantly
better qualified for the job, but this employer did not, the
factfinder can legitimately infer that the employer consciously
selected a less-qualified candidate.’’ 156 F.3d at 1294. Com-
paring Carter’s background to Morgan’s, however, a jury
could not reasonably conclude that Carter was significantly
better qualified for the position. Although Carter had a
master’s degree at the time—Morgan’s highest degree was a
bachelor’s—Morgan had far more experience in fundraising.
Carter’s resume described her experience as ‘‘including 6
11
years of soliciting companies and organizations to provide
funds for GW campus and Off-Campus Programs.’’ Her
resume supported this assertion with the following specific
descriptions: she (1) ran the Distinguished Alumni Awards
program ‘‘resulting in the cultivation of numerous recipients
who became GW donors’’; (2) ‘‘[p]articipated in monthly
meetings related to the university Centuries Campaign’’; (3)
‘‘[w]rote a proposal that won a grant from the National
Geographic Society’’; (4) ‘‘[s]olicited and obtained the spon-
sorship of corporate tables at GW events’’; (5) ‘‘[s]olicited and
generated funds from alumni by including a ‘gift option’ on
mailings and announcements’’; and (6) participated in a tele-
phone fundraiser.
By contrast, Morgan’s resume presented far more exten-
sive and intensive fundraising experience. Among her cur-
rent job responsibilities, she listed items like (1) ‘‘[m]anage
pool of 200 major gift prospects to support endowment and
current operating objectives of the Columbian School’s $30
million portion of the University’s $300 million Centuries
Campaign’’; (2) ‘‘[s]uccessfully identify, cultivate, solicit, and
steward major gift prospects’’; and (3) ‘‘[p]repare written
proposals, endowment agreements, and other solicitation ma-
terials needed to secure major gifts.’’ In prior jobs at GW
and other schools, moreover, Morgan listed such accomplish-
ments as (1) ‘‘[i]dentified, cultivated, solicited, and stewarded
200 prospects to secure multi-year commitments for the
School’s Dean’s Fund, Department Chair’s Fund, and Special
Projects’’; (2) ‘‘[d]eveloped five-year strategic plan for annual
fund campaign during the University’s Centuries Campaign’’;
(3) ‘‘[d]eveloped and implemented prospect tracking system
for the University’s 1,500 leadership giving prospects’’; (4)
‘‘[i]mplemented volunteer-driven alumni corporate campaign
among 2,000 alumni’’; and (5) ‘‘[d]eveloped and implemented
comprehensive student telemarketing program geared toward
special gift campaign prospects and increasing long-term
leadership giving.’’
Given Morgan’s far more substantial experience in fund-
raising, we see no basis for a jury to find that a reasonable
employer would have found Carter more qualified—let alone
12
significantly more qualified—for the position of Director of
Development at Mount Vernon. Because Carter offers no
other evidence to attack Baxter’s reason as pretextual and
indeed offers no other evidence from which a jury could infer
discriminatory or retaliatory intent on the part of Baxter, we
affirm the district court’s grant of summary judgment on all
counts related to this promotion denial.
Director of Corporate and Foundation Relations
Following the two denials of promotion described above,
Carter applied for yet a third GW position—Director of
Corporate and Foundation Relations. That position entailed
responsibility for coordinating the university’s grant manage-
ment and soliciting funds from corporations and foundations.
Such contributions made up a major part of GW’s fundraising
total: from 1995 to 1997, GW received between eleven and
seventeen million dollars annually from corporations and
foundations.
The university hired a consulting firm to do the initial
screening. That firm prepared a list of required job qual-
ifications, which included a bachelor’s degree (master’s
preferred); ‘‘[c]omprehensive professional experience in
university corporate and foundation relations’’; and a
‘‘[d]emonstrated track record of successful fund raising ac-
tivities and a demonstrated ability to solicit high-level
gifts.’’
The consultant in charge of the search, Katherine White,
interviewed Carter but did not recommend her for further
consideration. According to Carter, White informed her that
‘‘irrespective of the qualifications that she thought I pos-
sessed, per the instructions of Mr. Joseph Hall, I was being
denied the opportunity to interview and compete for the
position.’’ Sometime after this conversation, White wrote a
letter to Hall which stated that she had met with Carter,
found her unqualified due to lack of experience, and, after
consulting with Hall, called her to say that GW would consid-
er her no further. GW later withdrew the position for lack of
qualified applicants and then, several months later, restruc-
13
tured the position, increased the salary, and convinced the
employee who had last held the position to return.
Carter challenges this promotion denial as both racially
discriminatory and retaliatory. The district court found that
Carter failed to make out a prima facie case of discrimination
because she had not shown ‘‘that the position was filled by a
member outside of the protected class,’’ 180 F. Supp. 2d at
108, a requirement which the court deemed necessary under
McDonnell Douglas’s fourth element. Since then, however,
we held in Stella v. Mineta, 284 F.3d 135, 144-45 (D.C. Cir.
2002), that under McDonnell Douglas a plaintiff need not
show that the position was filled by someone outside her
protected class in order to make a prima facie case, though
the plaintiff must show that the position was not withdrawn
simply for lack of a vacancy, see Teneyck, 365 F.3d at 1152-53.
Here, the position not only remained unfilled, but, as shown
by GW’s later efforts to bring back the former employee, the
university still needed someone to occupy the position. Un-
der Stella, then, Carter’s claim does not fail based on McDon-
nell Douglas’s fourth element.
As GW points out, Carter still fails to make out a prima
facie case for both discrimination and retaliation because she
has not shown that she was qualified for the position. The
resume Carter submitted to GW nowhere indicates expertise
in fundraising. That resume even fails to list the fundraising-
related activities included in the resume Carter submitted for
the Mount Vernon job. Even supposing that Carter told
White about these additional activities during their meeting,
they fall short of ‘‘a demonstrated ability to solicit high-level
gifts.’’ Nor does her resume reveal much experience with
university corporate and foundation relations. The only rele-
vant references appear in two lines of her two-and-a-half page
resume: in its description of her earlier GW job as Director
of Off Campus Programs, Carter’s resume states that she
‘‘solicited participation from corporate, foundation, and mili-
tary offices’’ and ‘‘maintained database and corresponded with
various corporate, foundation, and governmental prospects.’’
We think no reasonable jury could find that this quite modest
14
description measures up to ‘‘comprehensive’’ experience in
university corporate and foundation relations.
Carter thus fails to meet the minimum objective criteria for
the position of Director of Corporate and Foundation Rela-
tions. Given this, and given that Carter showed neither that
these criteria were unnecessary for the job, cf. Barbour v.
Merrill, 48 F.3d 1270, 1274, 1276 (D.C. Cir. 1995) (holding
that plaintiff met his prima facie case despite lacking one
objective qualification sought by the employer because a jury
could determine that this criterion was unnecessary), nor that
White recommended other candidates who lacked these objec-
tive criteria, cf. Kinsey v. First Reg’l Sec., Inc., 557 F.2d 830,
836-37 (D.C. Cir. 1977) (holding that plaintiff met her prima
facie case despite lacking certain objective criteria because
‘‘these criteria were not applied alike to all applicants’’), she
has failed to show that she meets the qualifications require-
ment of the McDonnell Douglas prima facie case. Accord-
ingly, we affirm the district court’s grant of summary judg-
ment to GW on all counts related to this promotion denial.
IV.
Carter also challenges the district court’s grant of sum-
mary judgment to GW on three other counts: retaliation from
a negative evaluation, constructive discharge, and breach of
contract. These arguments are either waived or unsupport-
ed. Carter’s opening brief never challenged the district
court’s ruling on her negative-evaluation claim, and we do not
consider claims raised for the first time in a reply brief.
Fitts v. Fed. Nat. Mortg. Ass’n, 236 F.3d 1, 3 n.2 (D.C. Cir.
2001) (per curiam). Carter’s constructive discharge claim
fails as it must be predicated on a showing of either intention-
al discrimination, see Bishopp v. District of Columbia, 788
F.2d 781, 789-90 (D.C. Cir. 1986), or retaliation, and we have
upheld summary judgment on each of her claims that could
have formed the basis for this showing. Finally, Carter’s
breach-of-contract claim depends on her argument that the
GW personnel manual created a contract requiring the uni-
versity to abide by federal antidiscrimination laws. But as
15
we noted above, Carter’s trial counsel failed to present the
relevant parts of this manual to the district court, and Carter
nowhere mentioned the manual’s antidiscrimination clauses
during the portions of her deposition that are part of the
record. Without these clauses, no reasonable fact-finder
could infer the existence of such a contract. Moreover, as
with Carter’s constructive discharge claim, this claim cannot
survive summary judgment because she cannot show illegal
discrimination in the first place.
V.
Because Carter has failed to offer any evidence from which
a reasonable jury could find in her favor, we affirm the
district court’s grant of summary judgment to GW on all
counts.
So ordered.