Carpenter, Joann v. Fed Natl Mtge Assn

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 19, 1998 Decided January 22, 1999

No. 97-7201

JoAnn Carpenter,

Appellant

v.

Federal National Mortgage Association,

Appellee

Appeal from the United States District Court

for the District of Columbia

(No. 96cv02399)

Nicholas H. Hantzes argued the cause for appellant. With
him on the briefs were Kenneth M. Robinson and Dennis M.
Hart.

Juanita A. Crowley argued the cause for appellee. With
her on the brief was John Payton.

Before: Williams, Ginsburg and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Williams.

Williams, Circuit Judge: JoAnn Carpenter alleges that her
employer, Federal National Mortgage Association ("Fannie
Mae") discriminated against her on account of her sex in
promoting a male colleague rather than herself, and thus
violated the District of Columbia Human Rights Act, D.C.
Code ss 1-2512 et seq. The District Court granted summary
judgment in favor of Fannie Mae, and Carpenter appeals.

Although much of the evidence in the record on summary
judgment is documentary, the parties draw from it radically
different lessons. As Fannie Mae sees the case, the pro-
motion decision was simply one of merit. As Carpenter sees
it, the evidence of meritocracy is no more than a facade,
erected to cover up high-level male management's true pur-
pose--to respond to her efforts in favor of a company policy
restricting fraternization and thus more effectively preventing
sex discrimination in the form of sexual harassment. The
district court found that Fannie Mae had presented evidence
of a legitimate non-discriminatory reason for its decision, and
that a reasonable jury could not draw from plaintiff's evidence
the inference that Fannie Mae's reasons were in fact pretex-
tual. Thus it granted summary judgment. On the view we
take of the case, this assessment is unnecessary. Because
the evidence on which Carpenter relies makes out a case of
ideological rather than sex discrimination (if anything), a jury
could not properly hold Fannie Mae liable.

I.

JoAnn Carpenter has served as a vice president and deputy
general counsel in Fannie Mae's legal department since 1987.
In July 1996, as part of a reorganization of its legal depart-
ment, Fannie Mae decided to promote one of its vice presi-
dents to a new supervisory and management role. Senior
Vice President Anastasia Kelly, who had joined Fannie Mae
in 1995, was to delegate some of her existing management
duties to this new "super vice president." Fannie Mae
selected Joseph Biegel instead of Carpenter for this role.

According to Fannie Mae, Kelly chose Biegel after she
considered all of the other vice presidents in the Office of
General Counsel. Instead of using past evaluations, she
relied on her own experience with the vice presidents over
her year-long tenure at Fannie Mae. She says in her deposi-
tion that she looked at everyone who worked for her and
chose a lawyer who had strong interpersonal and communica-
tion skills. After she had selected Biegel, she consulted the
other Senior Vice President, Anthony Marra, who agreed
with her decision. Together they proposed the appointment
in memoranda to Executive Vice President and General
Counsel Robert Zoellick, President and Chief Operating Offi-
cer Larry Small, and Chairman and Chief Executive Officer
James Johnson.

Carpenter does not seriously attack the proposition that
Fannie Mae put on a case of a legitimate, non-discriminatory
reason for its decision. Her argument is that a jury might
conclude that it was invented simply to conceal the real story.
That story has three essential elements. First, she says she
actively favored an anti-fraternization policy that was anathe-
ma to high-level male management. Second, because of her
anti-fraternization views male management as early as 1994
preselected Biegel and eliminated her as a candidate. Third,
they concocted all the criticisms of her in her evaluations to
cover up their discriminatory motives, and made their deci-
sion appear to be that of Kelly, who was in fact only a "pawn
of the male upper management."1

__________
1 These past evaluations, which Kelly says she did not consult,
seem to support the conclusion that as an employee Biegel was
clearly as qualified as, if not superior to, Carpenter. Both Biegel
and Carpenter received similar numerical grades over the past five
years, and in the year before the reorganization Biegel received a
higher score. Also in evidence were extensive sets of notes made in
1994 and 1995 either in preparation for meetings of Carpenter's and
Biegel's bosses relating to personnel matters or as memorials of
statements made at such meetings. Although the notes reflect
statements (made or intended to be made) characterizing Carpenter
fairly favorably, the statements about Biegel are more favorable,
e.g., "broader" (in explicit contrast with Carpenter, who is twice

Carpenter claims that in the latter part of 1993 she heard
that a male supervisor, known for these purposes as Mr. Doe,
was having an affair with an employee he supervised. She
believed that any sexual relationship between a male officer
and a female subordinate (or vice versa) should be investigat-
ed because of the possibility of sexual harassment. In early
1994 she evidently suggested to Fannie Mae's Business Code
of Conduct Committee (of which she was a member) the
desirability of an anti-fraternization policy. To her recollec-
tion, there was no opposition to her proposal and it was later
adopted.

Carpenter's contention that this proposal and her anti-
fraternization views generally were anathema to high-level
male management rests on an exchange with Marra in 1996
after Biegel's promotion. At the close of a discussion about
Fannie Mae's reorganization, Carpenter said in a deposition,
Marra asked "how are things going with [Mr. Doe]?" Car-
penter contends that this reference to the Doe matter in a
discussion about the reorganization of Fannie Mae suggests
that the decision not to promote her was linked to her anti-
fraternization views. From the inference of opposition to her
views she draws the further inference that Biegel was pre-
selected and that the formal numerical evaluation and the
informal notes were pure camouflage.

And to show that Kelly was only a "pawn" of the males she
points to an e-mail message from Biegel to Small in which
Biegel thanked Small for his selection, and to admissions
allegedly made by Kelly to Carpenter. These "admissions,"
said by Carpenter to support all elements of her theory,
occurred in a meeting between Carpenter and Kelly on
September 6, 1996, after Carpenter complained to both Kelly

__________
dubbed "narrow" and said to "need rounding"), "good presence," "a
star," with feedback from the General Counsel's "clients" within
Fannie Mae expressing special enthusiasm (one of them, a woman,
would "take [him] on in a second"). The overall gist of these was
evidently communicated to Kelly, who met with Zoellick soon after
joining Fannie Mae in 1995 to discuss the vice presidents in the
legal department.

and Marra that Biegel's promotion manifested sex discrimina-
tion. Carpenter recounted in a deposition that when she told
Kelly about her grievances, Kelly "responded, ... saying, I
wish I could tell you you're crazy, but you're not. And then
she added, Other people are." "She mentioned that if she
were in my position, she would feel the same way, and she
prefaced that with, Between us girls." Carpenter said Kelly
asked her "if there was anything Fannie Mae could do to
mitigate the damage," and specifically offered her stock op-
tions.

II.

Once the defendant offered credible evidence of a reason
for the promotion decision that was free of sex discrimination,
Carpenter could defeat the defense motion for summary
judgment only by offering direct or indirect evidence of
discrimination. See McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); St. Mary's Honor Center v. Hicks, 509 U.S.
502 (1993). In interpreting its Human Rights Act the District
of Columbia also follows this formula, Arthur Young & Co. v.
Sutherland, 631 A.2d 354, 361 (D.C. 1993), and generally
seems ready to accept the federal constructions of Title VII,
given the substantial similarity between it and the D.C.
Human Rights Act. Id. at 361 n.17. Indirect proof can take
the form of evidence from which a jury could find that Fannie
Mae's stated reasons for selecting Biegel were pretextual.
Hicks, 509 U.S at 511. Usually such undermining evidence
will be enough to get a plaintiff's claim to a jury. Aka v.
Washington Hospital Ctr., 156 F.3d 1284 (D.C. Cir. 1998) (en
banc). This is not always the case, however. "[I]n 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." Id. at
1291.

This is one such instance. Sometimes an employer may
offer a meritocratic or otherwise high-sounding explanation
for a decision intending to cover up an unsavory reason--but
one that is not illegal under the antidiscrimination laws. If
the plaintiff explodes the phony reason with evidence that

simply supports an unsavory but lawful alternative reason (or,
more technically, offers evidence from which a jury might find
such to be the true reason), the plaintiff cannot get to the
jury. "If a plaintiff shoots himself in the foot, surely there is
no point in sending the case to the jury." Aka, 156 F.3d at
1291. Thus in Rothmeier v. Investment Advisers, Inc., 85
F.3d 1328, 1338 (8th Cir. 1996), which we cited approvingly in
Aka, the plaintiff "acknowledged" that he was fired because
the employer wanted, against plaintiff's will, to cover up its
collection of millions of dollars in violation of SEC regula-
tions. "This acknowledgment standing alone would complete-
ly refute [the plaintiff's] claim of age discrimination." Id. at
1337. And in Visser v. Packer Engineering Assoc., Inc., 924
F.2d 655, 657 (7th Cir. 1991) (en banc), also cited approvingly
in Aka, the plaintiff asserted age discrimination but offered
evidence that the real reason was disloyalty to the firm's chief
executive officer. "It does not show or even tend to show
that [the plaintiff] was fired because of his age. It tends if
anything to show the opposite." Id.

Assuming in Carpenter's favor that the evidence is such
that a reasonable jury could reject Fannie Mae's proffered
reasons for selecting Biegel, her entire theory nonetheless
rests on the premise that Fannie Mae's male upper manage-
ment concocted a scheme to defeat her as a candidate for
promotion because of her outspoken advocacy of eliminating
fraternization in the workplace. Carpenter's stance that she
was not promoted because of her views is unequivocal. Sum-
ming up the evidence and her take on it she says, "According-
ly, there is no explanation for eliminating Carpenter as a
candidate for promotion except the discriminatory bias creat-
ed by her active participation in seeking to protect the rights
of women employees." App. Br. at 33 (emphasis in original).

But the espousal of views for or against fraternization in
the workplace is not a surrogate for being male or female. In
Rothmeier, plaintiff attempted a parallel theory, claiming that
high ethical standards were so closely associated with age
that to penalize an employee for his whistleblowing was the
equivalent of penalizing him for age. 85 F.3d at 1337-38.
The court rejected the idea as "premised on a highly dubious

correlation," id., and we find Carpenter's implicit claim of
correlation equally dubious.2

Everyday life refutes the notion that skepticism of or even
opposition to an anti-fraternization policy proposal constitutes
discrimination against women. Persons who devote their
careers largely to seeking effective legal restriction of sexual
harassment commonly insist on a sharp distinction between
workplace relationships that are welcome on both sides (even
with Olympian status differentials between the participants),
and unwelcome attentions. See, Kathy Rodgers, Commen-
tary, "What Is and Isn't Sexual Harassment," Chicago Trib-
une, Feb. 6, 1998, at 31 (author, executive director of NOW
Legal Defense and Education Fund, insists staunchly on need
that sexual attentions be unwelcome for them to be sexual
harassment, and rejects notion that status differential of any
sort could substitute for unwelcomeness); Gloria Steinem,
Editorial, "Women and the White House, 'No' means 'No,'
and 'Yes' means 'Yes,' " Fort Worth Star-Telegram, March
29, 1998, at 3 ("The power imbalance between [parties] in-
crease[s] the index of suspicion, but ... [w]elcome sexual
behavior is about as relevant to sexual harassment as borrow-
ing a car is to stealing one"). The position of Fannie Mae's
management on either side of this issue is in no way a proxy
for gender bias.

In her reply brief Carpenter offers a convoluted argument
trying to forge such a link. Citing Oncale v. Sundowner
Offshore Services, Inc., 118 S. Ct. 998, 1002 (1998), and
Meritor Savings Bank v. Vinson, 477 U.S. 57, 68 (1986), she

__________
2 Of course civil rights statutes may make retaliation a claim in
some circumstances, such as Title VII's rule against an employer's
discriminating "against any of his employees ... because [the
employee] has opposed any practice made an unlawful employment
practice by this subchapter, or because he has made a charge,
testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter." 42 U.S.C. s 2000e-
3(a)(1994). But Carpenter has framed her suit as one of sex
discrimination, not retaliation, and in any event makes no claim that
fraternization is an employment practice made unlawful by the anti-
discrimination laws.

argues that the voluntariness of workplace sexual relations
does not end the inquiry regarding sexual harassment and
that the inference of sex discrimination is easy to draw in
most instances of sexual harassment. Therefore, she con-
cludes, the anti-fraternization policy "is directly related to
sexual harassment, because without such a prohibition, an
employer would need to investigate every case of fraterniza-
tion to determine whether sexual advances are unwelcome."
But, even accepting Carpenter's Orwellian assumption that
every instance of fraternization must be investigated lest it
actually be sexual harassment, the argument assumes rather
than establishes its equation of gender with anti-
fraternization advocacy.

Similarly, Carpenter cites Broderick v. Ruder, 685 F. Supp.
1269, 177-78 (D.D.C. 1988), for the proposition that she can
raise the sexual discrimination claim even though she was not
the victim of sexual harassment. But that case held only a
plaintiff could make out a hostile work environment claim on
the basis of a pervasive atmosphere of sexual harassment of
others, including a general practice of trading advancement
for sexual accommodation. Id. at 1277-78. Carpenter, of
course, claims neither hostile work environment nor the exis-
tence of any such practice at Fannie Mae.

Finally, in her reply brief Carpenter hints at another
alternative--that her "zeal [in pursuing anti-fraternization
policies] did not fit male management's stereotype of a wom-
an's role in Fannie Mae's environment of insensitivity to the
sexual harassment of women." If Fannie Mae treated zeal in
women differently from zeal in men, of course Carpenter
would have a case. But she has neither offered evidence nor
(until the Reply) even contended that this was such a case.
Accordingly, we can only read this passage as essentially a
restatement of her basic claim that Fannie Mae should be
held liable because it denied her promotion because of its
resistance to her fraternization policy proposals. But, as we
have said, that does not make out a case of gender discrimina-
tion.

The judgment of the district court is affirmed.

So ordered.