United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 3, 2006 Decided March 17, 2006
No. 04-5426
DOROTHY CHAPPELL-JOHNSON,
APPELLANT
v.
DONALD E. POWELL, CHAIRMAN, FEDERAL DEPOSIT
INSURANCE CORPORATION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 03cv01557)
David H. Shapiro argued the cause for appellant. With him
on the briefs was Richard L. Swick.
Alan Burch, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Kenneth L. Wainstein,
U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney.
Jaclyn C. Taner, Counsel, Federal Deposit Insurance
Corporation, and R. Craig Lawrence, Assistant U.S. Attorney,
entered appearances.
Before: SENTELLE, HENDERSON, and TATEL, Circuit
Judges.
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Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Appellant, an African American
woman in her fifties, claims that her employer facilitated
promotions for non-African American and younger employees,
but not for her. Because the position to which appellant sought
to be promoted was never filled, the district court, allowing
appellant no opportunity for discovery, concluded that she had
failed to meet her prima facie burden and granted summary
judgment to the employer. But given the flexible nature of the
prima facie burden, appellant may, depending upon what she
uncovers during discovery, be able to prevail even if the
employer never filled the position she sought. We therefore
reverse and remand with instructions to permit appellant to
conduct the discovery she seeks.
I.
Dorothy Chappell-Johnson, an African American woman
who was fifty-four years old at the time of the events at issue
here, works at the Federal Deposit Insurance Corporation
(FDIC). Dissatisfied with her promotion opportunities, she filed
a complaint in the U.S. District Court for the District of
Columbia, alleging, among other things, that the FDIC
discriminated against her on the basis of race in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-
16(a), and age in violation of the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. § 633a(a).
According to the complaint, Chappell-Johnson held a
“grade CG-11” position until, following a reorganization, her
grade was reduced to CG-9. She then became interested in a
vacancy announcement for a CG-13 position in her unit, but as
a CG-9 was ineligible to compete for it. Her complaint’s core
factual allegation is as follows:
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Although in the past Ms. Chappell-Johnson’s
supervisor, Lois Cheney (a white female) . . . had
reduced the grade of vacant positions to permit lower
grade employees to compete for them—a practice
which benefitted these younger, non-African American
employees—Ms. Cheney and the FDIC management
refused to lower the target grade of [this particular]
CG-13 position . . . .
Compl. ¶ 7. Accordingly, her complaint alleges,
[b]y not allowing Ms. Chappell-Johnson to compete for
the Personnel Management Specialist position in her
field and in her own assigned unit at the FDIC, as had
been done in the past for non-African American
employees, defendant has discriminated against
plaintiff on the basis of her race (black) in violation of
Title VII.
Id. ¶ 10. The complaint makes a similar allegation of age
discrimination. Id. ¶ 13.
Instead of answering the complaint, the FDIC moved to
dismiss under Federal Rule of Civil Procedure 12(b)(6) or, in the
alternative, for summary judgment pursuant to Rule 56(b). In
particular, the FDIC argued that Chappell-Johnson’s
discrimination claim “must fail for the simple reason that the
position was never filled.” Def.’s Mem. in Supp. of Def.’s Mot.
to Dismiss, or in the Alternative, for Summ. J. 5. In response,
Chappell-Johnson moved for additional discovery under Federal
Rule of Civil Procedure 56(f), which provides:
Should it appear from the affidavits of a party opposing
the [summary judgment] motion that the party cannot
for reasons stated present by affidavit facts essential to
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justify the party’s opposition, the court may refuse the
application for judgment or may order a continuance to
permit affidavits to be obtained or depositions to be
taken or discovery to be had or may make such other
order as is just.
Fed. R. Civ. P. 56(f). In a declaration supporting Chappell-
Johnson’s motion, her attorney represented to the district court
that discovery would reveal, among other things, “[t]he process
by which grade levels are determined for vacant positions,”
Shapiro Decl. 2, and “[t]he reason(s) why [the] vacancy . . . was
not filled,” id. at 4.
The district court denied the FDIC’s motion to dismiss.
Chappell-Johnson v. Powell, No. 03-1557, slip op. at 5 (D.D.C.
Sept. 30, 2004). “In the employment discrimination context,”
the court reasoned, “all a complaint need state is ‘I was turned
down for a job because of my race.’” Id. (quoting Sparrow v.
United Air Lines, Inc., 216 F.3d 1111, 1115 (D.C. Cir. 2000)).
Because Chappell-Johnson made “essentially that statement in
her race and age discrimination claims,” the court concluded that
“it is clear that plaintiff has stated a claim for which relief can
be granted under Title VII and the ADEA.” Id.
The district court reached a different conclusion with
respect to the FDIC’s motion for summary judgment.
Acknowledging that Chappell-Johnson “argues that
consideration of summary judgment is premature, given that no
discovery has yet occurred,” the court nonetheless concluded
that she had “pled herself out of court as to all her claims.” Id.
at 7. In particular, the district court credited the FDIC’s
argument that because Chappell-Johnson did not contest the
FDIC’s assertion that the position she sought was never filled,
her claim necessarily failed. “If the position was not filled by
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someone younger or of a different race,” the court continued,
“she has not suffered an actionable injury.” Id. at 8.
Chappell-Johnson now appeals. We review the district
court’s grant of summary judgment de novo. Salazar v. Wash.
Metro. Area Transit Auth., 401 F.3d 504, 507 (D.C. Cir. 2005).
Although we review the denial of a Rule 56(f) motion for abuse
of discretion, Paquin v. Fed. Nat’l Mortgage Ass’n, 119 F.3d 23,
28 (D.C. Cir. 1997), here Chappell-Johnson argues that the
district court’s denial of her Rule 56(f) motion rested on an error
of law. Thus, “[l]ittle turns . . . on whether we label review of
this particular question abuse of discretion or de novo,” for “[a]
district court by definition abuses its discretion when it makes
an error of law.” Koon v. United States, 518 U.S. 81, 100
(1996).
II.
In McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), the Supreme Court set out a burden-shifting approach to
employment discrimination claims in cases where the plaintiff
lacks direct evidence of discrimination. To proceed under
McDonnell Douglas, the plaintiff “must carry the initial burden
under the statute of establishing a prima facie case of racial
discrimination.” Id. at 802. If the plaintiff meets this burden,
“[t]he burden then must shift to the employer to articulate some
legitimate, nondiscriminatory reason” for its action. Id. If the
employer succeeds, then the plaintiff must “be afforded a fair
opportunity to show that [the employer’s] stated reason . . . was
in fact pretext” for unlawful discrimination. Id. at 804. The
McDonnell Douglas framework applies to both Title VII and
ADEA claims. Carter v. George Washington Univ., 387 F.3d
872, 878 (D.C. Cir. 2004).
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“[E]stablishing a prima facie case,” the McDonnell Douglas
Court explained,
may be done by showing (i) that [the plaintiff] 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. In setting forth these
requirements, however, the Supreme Court emphasized that
“[t]he facts necessarily will vary in Title VII cases, and the
specification above of the prima facie proof required . . . is not
necessarily applicable in every respect to differing factual
situations.” Id. n.13. In a similar vein, the Court has made clear
that “[t]he burden of establishing a prima facie case of disparate
treatment is not onerous,” Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981), and that “the precise
requirements of a prima facie case can vary depending on the
context and were ‘never intended to be rigid, mechanized, or
ritualistic,’” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512
(2002) (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567,
577 (1978)).
Given the Supreme Court’s emphasis on flexibility, we have
adopted a more general version of the prima facie case
requirement: “the plaintiff must establish that (1) she is a
member of a protected class; (2) she suffered an adverse
employment action; and (3) the unfavorable action gives rise to
an inference of discrimination.” Brown v. Brody, 199 F.3d 446,
452 (D.C. Cir. 1999). To be sure, as the FDIC points out, we
explained in Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139,
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1150 (D.C. Cir. 2004), that in “typical failure-to-hire cases” we
apply the original McDonnell Douglas formulation, requiring
plaintiffs to show that the position remained open and that the
employer continued to seek applicants from persons of
complainant’s qualifications. It bears noting, however, that even
in failure-to-hire cases we impose no requirement that the
employer filled the sought-after position with a person outside
the plaintiff’s protected class. Stella v. Mineta, 284 F.3d 135,
145 (D.C. Cir. 2002).
Here, Chappell-Johnson does not attempt to show that the
position remained open and that the employer continued to seek
applicants (the McDonnell Douglas formulation). Rather, she
attempts to demonstrate that the FDIC denied her an opportunity
for advancement that it gave to non-African American and
younger employees, namely, the opportunity to compete for a
vacant position with a grade for which she would otherwise be
ineligible. This is a perfectly acceptable way to try to satisfy her
prima facie burden, which, under Brown, she may do by
producing any evidence that gives rise to an “inference of
discrimination” (along with evidence sufficient to satisfy
Brown’s other two elements, see infra pp. 8-9). Brown, 199
F.3d at 452; cf. Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir.
1999) (stating burden as requirement to show “that she and [a]
similarly situated person were treated disparately”); Bundy v.
Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981) (stating, in failure-
to-promote case, that plaintiff meets burden if she shows “that
other employees of similar qualifications who were not members
of the protected group were indeed promoted at the time the
plaintiff’s request for promotion was denied”).
Moreover, holding Chappell-Johnson to a particular method
of raising an “inference of discrimination” is especially
inappropriate at this stage of the litigation. As the Supreme
Court has explained, “[b]efore discovery has unearthed relevant
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facts and evidence, it may be difficult to define the precise
formulation of the required prima facie case in a particular
case.” Swierkiewicz, 534 U.S. at 512; see also Americable Int’l,
Inc. v. Dep’t of Navy, 129 F.3d 1271, 1274 (D.C. Cir. 1997)
(“[S]ummary judgment ordinarily is proper only after the
plaintiff has been given adequate time for discovery.” (internal
quotation marks omitted)). Indeed, as the Court also pointed
out, discovery may even uncover direct evidence of
discrimination, thus entirely eliminating the need to prove a
prima facie case. See Swierkiewicz, 534 U.S. at 511 (noting, in
rejecting a requirement that plaintiffs include all elements of a
prima facie case in their pleadings, that “if a plaintiff is able to
produce direct evidence of discrimination, he may prevail
without proving all the elements of a prima facie case”).
In short, because Chappell-Johnson’s counsel’s declaration
pointed to the types of evidence that might raise an inference of
discrimination—evidence regarding the FDIC’s process for
determining the qualifications for this vacancy as compared to
the process for other vacancies, as well as evidence regarding
why this vacancy was never filled—and because we may not
impose a prima facie case requirement in a “rigid, mechanized,
or ritualistic” way, id. at 512 (internal quotation marks omitted),
Chappell-Johnson is entitled to the discovery she seeks.
III.
The FDIC raises two additional arguments. First, it objects
to Chappell-Johnson’s attempt to compare herself to non-
African American and younger employees for whom the agency
lowered job qualifications, arguing that these other employees
were not “similarly situated” to Chappell-Johnson either
because they sought positions different from the one she sought
or because they had different qualifications. Second, relying on
the well-accepted principle that a Title VII plaintiff must show
that she has suffered “materially adverse consequences affecting
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the terms, conditions, or privileges of her employment or her
future employment opportunities such that a reasonable trier of
fact could conclude that [she] has suffered objectively tangible
harm,” Brown, 199 F.3d at 457, the FDIC insists that its refusal
to change the qualifications for the job Chappell-Johnson sought
is not sufficiently adverse to be actionable. Because the FDIC
raised neither argument in the district court, however, we will
not consider them. See Flynn v. Comm’r, 269 F.3d 1064, 1068-
69 (D.C. Cir. 2001) (“Generally, an argument not made in the
lower tribunal is deemed forfeited and will not be entertained
absent exceptional circumstances.” (internal quotation marks
omitted)). Of course, if the FDIC properly raises these
arguments on remand, the district court remains free to consider
them.
We reverse the district court’s grant of summary judgment
and remand for further proceedings consistent with this opinion.
So ordered.