United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 16, 2005 Decided May 6, 2005
No. 04-7027
LUCY MURRAY,
APPELLANT
v.
DAVID GILMORE, AS RECEIVER, DISTRICT OF COLUMBIA
HOUSING AUTHORITY AND IN HIS INDIVIDUAL CAPACITY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 99cv00361)
Veronice A. Holt argued the cause and filed the briefs for
appellant.
Mona Lyons argued the cause and filed the briefs for
appellee.
Before: ROGERS, TATEL, and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Appellant, an employee of the D.C.
Housing Authority, ostensibly lost her job as part of a “reduction
2
in force” undertaken by the Authority’s court-appointed
receiver. After unsuccessfully pursuing her administrative
remedies, she sued the receiver in his personal and official
capacities, alleging wrongful termination in violation of the
District’s Comprehensive Merit Personnel Act, race
discrimination in violation of Title VII and 42 U.S.C. § 1981,
sex discrimination in violation of Title VII, and deprivation of
due process in violation of 42 U.S.C. § 1983. The district court
granted summary judgment to the receiver on all claims except
the due process one against him in his official capacity, which
the court dismissed without prejudice. Following the district
court’s denial of her motion to reinstate the due process claim,
appellant filed this appeal. We now reverse the grant of
summary judgment to the receiver with regard to the Title VII
sex discrimination claim against him in his official capacity, but
affirm in all other respects.
I.
In 1995, under the auspices of Judge Graae of the D.C.
Superior Court, the D.C. Department of Public and Assisted
Housing entered into a settlement agreement to resolve a lawsuit
brought by plaintiffs seeking structural reform of the agency.
Known as the Pearson Order, the agreement provided that the
court would appoint a receiver to run the agency for at least
three years and gave the receiver significant power to restructure
the agency’s personnel. Pearson v. Kelly, No. 92-14030 (D.C.
Super. Ct. May 18, 1995). In part, the order provided:
As to employees who are not subject to collective
bargaining agreements, during the transition from the start-
up of the receivership to the implementation of such
personnel policies as the receiver shall institute, such
employees’ rights as to benefits, compensation, and
termination (except as stated herein) shall be governed by
the Comprehensive Merit Personnel Act, D.C. Code § 1-
3
601 et. seq. Upon the establishment by the receiver of
published personnel policies for the governing of
employees who are not subject to collective bargaining
agreements, these employees shall be subject solely to the
personnel policies the receiver shall institute governing the
employees’ benefits, compensation and termination. The
personnel policies established by the receiver for employees
who are neither at will employees, employees in their
probationary period, nor subject to collective bargaining
agreements (“permanent managerial civil service
employees”), shall provide that these employees shall not
be terminated except for cause or misconduct or for non-
performance of duty or due to abolition of their position (as
these terms are defined by the receiver in the published
personnel policies).
Judge Graae appointed appellee David Gilmore as receiver.
For one of his first moves, Gilmore hired a consulting group to
evaluate the importance of positions in the department—by then
renamed the “Housing Authority”—with annual salaries over
$48,000.
Appellant Lucy Murray, an African-American woman, held
one such management position: Public Information
Officer/Chief of the Office of Public Information. According to
her job description, she was responsible for supervising the
Office of Public Information, developing the Authority’s public
information strategy, acting as its principal advisor on public
affairs, serving as its official spokesperson, and carrying out
other responsibilities related to these tasks. The consultants
determined that her position was “essential,” explaining that “it
would appear that any wholesale turn-around of the agency may
require the function and resources of the Office of Public
Information. Accordingly, it may be necessary to retain the
position of Visual and Public Information Officer.” Although
Gilmore did not know Murray personally, he associated
4
her—erroneously, as he now seems to concede—with a bad
public relations incident the agency had experienced before he
came on board.
In September 1995, Gilmore created a new
position—Director of Public Affairs—and hired Arthur Jones,
an African-American male, to fill it. The parties debate whether
Gilmore publicized this position prior to hiring Jones, but
Gilmore acknowledged at his deposition that he considered only
Jones for the position. According to the new position’s job
description, Jones was responsible for supervising the Office of
Public Affairs (which had not existed prior to his appointment
and of which he was the only member), developing the
Authority’s public information program, advising the receiver
on public affairs, serving as the Authority’s official
spokesperson, and undertaking related tasks. Though Jones had
no housing experience, he had an extensive press background,
having served as a Deputy White House Press Secretary and as
the City of Boston’s Director of Communications.
Several months later, in December 1995, Gilmore issued a
personnel manual which provided that the “receiver may reduce
the size of the workforce, including by the abolition of positions,
when the receiver determines that such action is necessary or
prudent.” Pursuant to the Pearson Order, the manual had the
effect of terminating the application of D.C.’s Comprehensive
Merit Personnel Act to Housing Authority employees. See
supra at 2-3.
The next month, Gilmore proposed a reduction-in-force
(RIF). If followed, the RIF would have eliminated sixteen
positions filled by eight African-American men (of whose
positions the consultants ranked four as critical, one as essential,
two as non-essential, and one as not needed), four African-
American women, including Murray (all of whose positions
were ranked as essential), two white men (with one position
ranked essential and the other non-essential), and two white
5
women (with one position ranked non-essential and the other
unnecessary). Gilmore’s actual RIF, however, departed from
this proposal. Ultimately, some positions were not eliminated
and of the positions that were, most employees who had held
these positions either accepted different jobs within the agency
or took voluntary retirement. Only three employees faced other
outcomes. An African-American man (whose position was
ranked by the consultants as not needed) moved to a job at
another agency, and Murray and another African-American
woman (both of whose positions were ranked essential) were
involuntarily terminated.
Twelve days after Murray’s departure, Gilmore changed
Jones’s job title from Director of Public Affairs to Director of
Public Information. A few months after that, Gilmore added a
new employee—an “Information Management Specialist”—to
the Office of Public Information.
Under the personnel manual, terminated employees could
demand a hearing before an examiner, who would make a
recommendation to the receiver, who in turn had the final say.
Invoking this process, Murray promptly requested a hearing—a
request she reiterated in letters sent virtually every month until
the summer of 1997 when, roughly a year and a half after her
firing, she finally received her hearing. In support of her
wrongful termination claim, she argued that Gilmore trumped up
the RIF to justify her firing. Gilmore never actually eliminated
her position, Murray claimed, but instead simply renamed it and
gave it to Jones, letting her go shortly thereafter. At the hearing,
a Housing Authority representative acknowledged that Jones’s
and Murray’s positions were “functionally equivalent”: “they
both had the reporting to the head of the Agency”; “[t]hey both
had overall responsibility for the Office of Public Information”;
“they both were responsible for supervising the employees in
that office”; and “[f]inally, they each were the chief
spokesperson.”
6
In summer 1998, a year after the hearing, the examiner
issued her recommendation, concluding that Gilmore had
functionally replaced Murray with Jones and thus that “the RIF
as it affected Murray was a reorganization only on paper and
was only a veil for her discharge.” The examiner recommended
Murray’s reinstatement with back pay. Two years later, in
September 2000, Gilmore rejected this recommendation and
instead upheld Murray’s termination.
Perhaps because her internal appeal was progressing slowly,
Murray had meanwhile filed a complaint alleging race and sex
discrimination with the D.C. Department of Human Rights and
Local Business Development. The Department found probable
cause for sex discrimination, but since an African American had
replaced Murray it found no cause for race discrimination.
Murray also sued Gilmore in the U.S. District Court for the
District of Columbia. Brought against Gilmore in his
representative and individual capacities, her amended complaint
alleged violations of Title VII, 42 U.S.C. § 2000e-2; 42 U.S.C.
§ 1981; D.C.’s Comprehensive Merit Personnel Act, D.C. Code
§§ 1-601 to 1-636; and, pursuant to 42 U.S.C. § 1983, the Fifth
Amendment’s Due Process Clause.
The parties cross-moved for summary judgment. The
district court denied Murray’s motion and, in fall 2002, granted
Gilmore’s motion except with regard to Murray’s due process
claim against Gilmore in his official capacity. Murray v.
Gilmore, 226 F. Supp. 2d 179 (D.D.C. 2002), as amended, 231
F. Supp. 2d 82 (D.D.C. 2002). Finding Murray’s basis for the
due process claim difficult to “glean,” the court “dismissed [that
claim] without prejudice subject to reconsideration at such time
as plaintiff is able to clearly identify legal and factual bases for
proceeding on this claim,” id. at 190, and ordered the case
“taken off the active calendar of the Court,” id. at 191. Murray
moved to reinstate the due process claim, but the court denied
the motion in early 2004, concluding that “plaintiff merely
7
restate[d] her factual allegations” and offered no new legal
theory. Murray v. Gilmore, No. 99-361 (D.D.C. Feb. 22, 2004).
Murray now appeals.
II.
As an initial matter, Gilmore questions our jurisdiction to
review the issues decided in the district court’s 2002 summary
judgment order. According to Gilmore, the 2002 order
constituted a final order for purposes of 28 U.S.C. § 1291, and
Murray’s appeal was therefore untimely because she filed it
after the 2004 denial of reinstatement. See Fed. R. App. P. 3;
Fed. R. App. P. 4 (providing that if the district court issues an
appealable final order, a party must timely appeal that order).
Murray sees the 2002 order quite differently. That order was not
a final appealable order, she argues, because rather than
signaling the “final disposition of the case,” see Franklin v.
District of Columbia, 163 F.3d 625, 629 (D.C. Cir. 1998)
(noting that appeal “is to be deferred until final disposition of
the case”), it left her due process claim unresolved. Gilmore
responds that the court gave a “final disposition” of the due
process claim by dismissing it without prejudice. We agree with
Murray.
Under Ciralsky v. CIA, 355 F.3d 661 (D.C. Cir. 2004),
dismissal of an action without prejudice is a final disposition but
dismissal of a complaint without prejudice typically isn’t. See
id. at 666-67 (determining that the district court had dismissed
the action rather than just the complaint). Here, the district
court’s decision to “dismiss [the due process claim] without
prejudice subject to reconsideration,” Murray, 226 F. Supp. 2d
at 190, was at most a dismissal of the due process portion of the
complaint. Had the court intended to dismiss the action, it
would have done more than just remove the case from its active
calendar; it might, for example, have designated the 2002 order
as “final and appealable,” as did the Ciralsky district court, see
8
Ciralsky, 355 F.3d at 667.
Gilmore also suggests that even if the district court
dismissed only the due process claim (rather than the action), the
dismissal was final because Murray could not refile it due to a
lapsed statute of limitations. Cf. id. at 666 n.1. But the district
court plainly contemplated that Murray could reinstate her claim
“at such time as plaintiff is able to clearly identify legal and
factual bases” for her argument, Murray, 226 F. Supp. 2d at 190;
see also Murray, No. 99-361 (D.D.C. Feb. 22, 2004), leaving
Gilmore on notice not just of the claim, but of its continued
viability as well. The district court’s “dismissal” was thus akin
to a grant of leave to amend under Federal Rule of Civil
Procedure 15(c), which permits such amendments to relate back
to the original filing date for statute-of-limitations purposes. Cf.
6A Wright, Miller & Kane, Federal Practice and Procedure §
1508 (2d. ed. 1990) (noting that “the policy underlying the
statute of limitations is in no way compromised” by permitting
amendment if “the defendant is given sufficient notice of the
nature of the claim being asserted at the outset of the action”).
Because the statute of limitations thus posed no bar to Murray’s
refiling, the 2002 order was not a final, appealable order, and
Murray properly waited until after the 2004 denial of
reinstatement to appeal.
III.
Turning to the merits of Murray’s race and sex
discrimination claims, we review the district court’s grant of
summary judgment de novo, viewing the evidence in the light
most favorable to Murray, and will affirm only if no reasonable
jury could find in her favor. E.g., Dunaway v. Int’l Bhd. of
Teamsters, 310 F.3d 758, 761 (D.C. Cir. 2002). To determine
whether a reasonable jury could find in Murray’s favor on her
Title VII and 42 U.S.C. § 1981 claims, we use the familiar
McDonnell Douglas framework. Murray must first make out a
9
prima facie case. See McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973). As Gilmore concedes, she has done so:
“(i) at the time [s]he was fired, [s]he was a member of the class
protected by” Title VII and section 1983; “(ii) [s]he was
otherwise qualified for the position” of Officer/Chief of the
Office of Public Information; “(iii) [s]he was discharged by
respondent,” see Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 142 (2000); and (iv) as we discuss later, evidence
suggests that another employee replaced her, see Stella v.
Mineta, 284 F.3d 135, 145-46 (D.C. Cir. 2002) (holding that a
plaintiff need not show as part of her prima facie case that her
replacement came from outside her protected class). This prima
facie showing shifts the burden of production to Gilmore,
requiring that he proffer a legitimate, nondiscriminatory reason
for firing Murray. See McDonnell Douglas Corp., 411 U.S. at
802. Satisfying that burden, he claims he laid her off pursuant
to a bona fide RIF. At this point, then, the McDonnell Douglas
framework disappears, and we must decide whether a reasonable
jury could infer intentional discrimination from “(1) the
plaintiff’s prima facie case; (2) any evidence the plaintiff
presents to attack the employer’s proffered explanation for its
actions; and (3) any further evidence of discrimination that may
be available to the plaintiff (such as independent evidence of
discriminatory statements or attitudes 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)). This boils
down to two inquiries: could a reasonable jury infer that the
employer’s given explanation was pretextual, and, if so, could
the jury infer that this pretext shielded discriminatory motives?
On the first inquiry, Murray contends with respect to her
section 1981 claim that principles of collateral estoppel prevent
reconsideration of the hearing examiner’s conclusions, leaving
us bound by the examiner’s finding that the RIF justification
was pretext. See United States v. Utah Constr. & Mining Co.,
10
384 U.S. 394, 421-22 (1966) (holding that courts can give
preclusive effect to certain administrative proceedings); but see
Univ. of Tennessee v. Elliot, 478 U.S. 788 (1986) (holding that
no such preclusion occurs in the Title VII context). But while
preclusive effect may sometimes attach to administrative
proceedings, we see no reason why it should attach to
proceedings where the examiner may only make
“recommendations” and lacks power to issue binding judgments.
Cf. Restatement (Second) of Judgments § 27 (1982) (requiring
“valid and final judgment” for issue preclusion). Moreover,
Gilmore’s role as the final decision-maker undoubtedly reduced
his incentive to litigate the case fully, not only by limiting his
concerns about the outcome of the administrative process but
also by giving him cause to suppose that should preclusion
attach at all, it might attach to his final administrative decision
rather than the examiner’s rejected recommendation. See id. §
28(c) (stating that issue preclusion should not apply where “the
party sought to be precluded . . . did not have an adequate
opportunity or incentive to obtain a full and fair adjudication in
the initial action”); see also id. § 27 cmt. o (noting that if a
decision below is reversed on appeal, the appellate “judgment is
conclusive between the parties” in later litigation).
We nonetheless agree with Murray that a reasonable jury
could find Gilmore’s proffered explanation pretextual. Murray
offers plentiful evidence from which a jury could conclude that
rather than functionally eliminating the position of Officer/Chief
of Public Information, Gilmore simply gave the position a new
title and tapped Jones to hold it. Not only are the job
descriptions of the two positions quite similar, but a Housing
Authority representative testified at the administrative hearing
that the positions were “functionally equivalent.” Indeed,
immediately after Murray’s departure, Jones’s title changed
from “Director of Public Affairs” to “Director of Public
Information.” Standing alone, such evidence easily creates a
material issue of fact as to whether Gilmore’s justification was
11
pretextual. At oral argument, counsel for Gilmore
acknowledged as much. After counsel stated, “I concede that .
. . obviously a Director of Public Relations and a Public
Information Officer have comparable, dual, functionally
equivalent, overlapping responsibilities,” the court inquired,
“And from that . . . a reasonable jury could conclude that this
was pretext?” “I believe that’s correct,” counsel responded.
Bolstering an already adequate case, Murray points out that
Gilmore not only increased the budget of the Department of
Public Information, but also added another employee after
Murray left—two facts that support an inference that Gilmore
had no need to undertake an RIF within that Department in the
first place.
Of course, that a jury could infer pretext does not always
mean that a jury could infer race or sex discrimination. As we
stated in Aka v. Washington Hospital Center, 156 F.3d 1284,
1291 (D.C. Cir. 1998) (en banc), “in some instances . . . the fact
that there are material questions as to whether the employer has
given the real explanation will not suffice to support an
inference of discrimination.” We gave two examples of such
situations: where “the plaintiff calls the employer’s explanation
into question, but does so in a way that conclusively
demonstrates that the real explanation for the employer’s
behavior is not discrimination, but some other motivation” and
where “the plaintiff has created only a weak issue of material
fact as to whether the employer’s explanation is untrue and there
is abundant independent evidence in the record that no
discrimination has occurred.” Id. The Supreme Court endorsed
Aka’s approach in Reeves v. Sanderson Plumbing Products. See
530 U.S. at 148 (using the same examples in explaining when a
jury could not infer discrimination solely from a plaintiff’s
prima facie case and showing of pretext). The Court explained,
Whether judgment as a matter of law is appropriate in any
particular case will depend on a number of factors. Those
12
include the strength of the plaintiff’s prima facie case, the
probative value of the proof that the employer’s explanation
is false, and any other evidence that supports the
employer’s case and that properly may be considered on a
motion for judgment as a matter of law.
Id. at 148-49.
Murray’s two claims—race discrimination and sex
discrimination—fare differently under this standard. Her race
discrimination claim, like the exceptions given in Reeves and
Aka, fails because even assuming pretext, Gilmore replaced
Murray, an African American, with Jones, also an African
American. While Murray can make out a prima facie case
despite such parity, see Stella, 284 F.3d at 145-46, a replacement
within the same protected class cuts strongly against any
inference of discrimination, see Brown v. Brody, 199 F.3d 446,
451 (D.C. Cir. 1999) (noting that a sex discrimination claim
based on denial of a lateral transfer “would be baseless because
two of the three employees selected for that transfer were
women”); cf. Rand v. CF Indus., 42 F.3d 1139, 1147 (7th Cir.
1994) (where same decision-maker hired and fired plaintiff
within span of two years, a jury could not draw an inference that
he engaged in age discrimination absent specific evidence of
animus); Lowe v. J.B. Hunt Transport, Inc., 963 F.2d 173, 174-
75 (8th Cir. 1992) (similar).
This does not mean that a jury could never infer
discrimination where the plaintiff was replaced by a member of
the same protected class. For example, suppose an employer
fired ten African-American employees for pretextual reasons
and replaced them with nine whites and one African American.
Under these circumstances, the employee replaced by the
African American could most likely survive summary judgment
on a race discrimination claim. But Murray offers no such
evidence. She does point out that most “critical” or “essential”
positions on the proposed RIF list were occupied by African
13
Americans, but we doubt a jury could find that particularly
persuasive absent evidence showing how many white and
African-American employees held “critical” or “essential”
positions in the agency as a whole. Similarly, the fact that the
only two employees from the proposed RIF list who were
involuntarily terminated were African Americans carries little
weight given that three-fourths of the listed RIF candidates were
African Americans, a proportion not challenged by Murray as
itself discriminatory. Because we think no reasonable jury could
rely on this evidence to infer race discrimination given Murray’s
replacement by an African American, we will affirm the district
court’s dismissal of her Title VII and section 1981 race
discrimination claims.
We reach a different conclusion with respect to Murray’s
Title VII sex discrimination claim. First, because her
replacement was a man, her prima facie case is stronger on that
claim. See Reeves, 530 U.S. at 148-49. Second, “the proof that
the employer’s explanation is false,” id. at 149, was strong, and
we see no circumstances like those hypothesized in Aka and
Reeves that would preclude a rational factfinder from inferring
discrimination from pretext. While the pretext may conceal
other motives—such as that Gilmore thought the agency needed
a better spokesperson or distrusted Murray due to his inaccurate
belief that she had caused a prior press debacle—nothing in the
record demonstrates this anywhere near as “conclusively,” see
Aka, 156 F.3d at 1291; Reeves, 530 U.S. at 148, as in the Eighth
Circuit decision cited in Aka, where the plaintiff himself had
argued “that in fact the real reason he had been discharged was
that he had discovered that his firm was not in compliance with
Securities and Exchange Commission rules and his employer
wished to cover the problem up.” See Aka, 156 F.3d at 1291
(describing Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328
(8th Cir. 1996)). Nor is this a case with either a “weak issue of
material fact as to whether the employer’s explanation is untrue”
or “abundant independent evidence in the record that no
14
discrimination has occurred,” let alone both. See id.
(hypothesizing a case where the employer has a “strong record
of equal opportunity employment” with 40% of the workforce
made up of protected class members compared to a relevant
labor market of only 10% protected class members).
Pointing out that he proposed eliminating positions
occupied by both men and women, Gilmore argues that a
reasonable jury could not infer sex discrimination. But even
assuming those other actions were nondiscriminatory, we doubt
this could prevent a jury from inferring sex discrimination in
Murray’s case. Moreover, viewing the facts in Murray’s favor,
we think a reasonable jury could find that the RIF’s outcome
supports rather than undermines her claim of sex discrimination.
Sixteen individuals, fewer than half women, occupied the
positions identified for the RIF. When the dust settled, the only
two involuntarily separated were women. While others left the
agency, including two men who retired and another who went to
a different agency, Gilmore points to nothing in the record that
would require a jury to infer that these men would have faced
involuntary separation otherwise.
In sum, Gilmore offers no reason, nor can we think of one,
that would necessarily prevent a reasonable jury from inferring
sex discrimination as to Murray if it found his proffered reason
for abolishing her position pretextual. Murray’s Title VII sex
discrimination claim thus survives summary judgment. Of
course, that claim lies only against Gilmore in his official
capacity, as our case law clearly precludes a suit against him
individually. See Gary v. Long, 59 F.3d 1391, 1399 (D.C. Cir.
1995).
IV.
Murray has waived her remaining two claims. In order for
her claim under D.C.’s Comprehensive Merit Personnel Act to
survive summary judgment, she must demonstrate that her
15
termination (for purposes of the Act) occurred at the time of
Jones’s hiring rather than at the time of the RIF, since by the
latter time Gilmore had issued the personnel manual that
(pursuant to the Pearson Order) ended the Act’s applicability to
Housing Authority employees like Murray. Because Murray’s
brief nowhere argues this point, she has waived the claim. See,
e.g., City of Waukesha v. EPA, 320 F.3d 228, 250 n.22 (D.C.
Cir. 2003) (per curiam) (argument inadequately raised in
opening brief is waived). Murray has similarly waived her due
process claim by failing to argue that she has a constitutionally
protected property interest in her job. Indeed, she nowhere
responds to Gilmore’s assertion that employees terminated
pursuant to an RIF lack such an interest. See id.; cf. Carducci v.
Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (noting that the
“premise of our adversarial system is that appellate courts do not
sit as self-directed boards of legal inquiry and research, but
essentially as arbiters of legal questions presented and argued by
the parties before them”). Because none of Murray’s claims
against Gilmore in his personal capacity remains alive, we leave
for another day the issue of whether, as Gilmore argues, court-
appointed receivers enjoy quasi-judicial immunity in their
personal capacity.
We reverse the district court’s entry of summary judgment
for Gilmore with respect to Murray’s Title VII sex
discrimination claim against him in his official capacity and
remand for further proceedings. In all other respects, we affirm.
So ordered.