Stella, Marie v. v. Mineta, Norman Y.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 5, 2002 Decided March 29, 2002

No. 00-5458

Marie V. Stella,
Appellant

v.

Norman Y. Mineta and
Jane F. Garvey, Administrator,
Federal Aviation Administration,
Appellees

Appeal from the United States District Court
for the District of Columbia
(No. 97cv02550)

Gary T. Brown argued the cause for appellant. With him
on the briefs was Camilla C. McKinney.

Michael A. Humphreys, Assistant United States Attorney,
argued the cause for appellee. With him on the brief were

Roscoe C. Howard, Jr., United States Attorney, and R. Craig
Lawrence, Assistant United States Attorney.

Before: Ginsburg, Chief Judge, Edwards and Sentelle,
Circuit Judges.

Opinion for the Court filed by Circuit Judge Edwards.

Edwards, Circuit Judge: Appellant Marie V. Stella is an
employee of the Federal Aviation Administration ("FAA").
She brought claims under the Whistleblower Protection Act
of 1989, Pub. L. No. 101-12, 103 Stat. 16 (1989) (codified in
scattered sections of 5 U.S.C.) ("WPA"), alleging that the
FAA retaliated against her after she disclosed instances of
fraud, safety problems, waste, and abuse related to several
FAA programs. She also brought claims of sex discrimina-
tion under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
ss 2000e et seq. ("Title VII"). She claimed, inter alia, that
discrimination played a role in the FAA's failure to promote
her to the Senior Executive Service ("SES") program.

The District Court for the District of Columbia granted the
FAA's motion to dismiss appellant's WPA claims for lack of
jurisdiction. See Stella v. Slater, Civ. Action No. 97-2550,
Mem. Op. at 28 (D.D.C. Dec. 8, 2000) ("Mem. Op."). At the
time Ms. Stella initiated her action in the District Court, FAA
employees were barred from bringing whistleblower claims
through the Office of Special Counsel ("OSC") and the Merit
Systems Protection Board ("MSPB"), which are the channels
that most federal employees are required to follow. Con-
gress recently remedied this situation, however, by passing a
law granting jurisdiction for whistleblower claims by FAA
employees to the OSC and the MSPB. The new law applies
retroactively to Ms. Stella's case. Because she is required to
bring her claim to the OSC and MSPB, we affirm the District
Court's dismissal of her WPA claims.

The District Court also granted summary judgment for the
FAA on the Title VII claims on the ground that Ms. Stella
failed to make out a prima facie case of sex discrimination.
Mem. Op. at 28. Although appellant had credibly asserted
that the FAA failed to promote her to the SES positions for

which she had applied, the District Court found that she had
not suffered an adverse employment action because both
women and men had been promoted to the SES positions.
Id. at 17-18. In so ruling, the District Court applied an
incorrect legal standard. In making out a prima facie case of
discrimination, a plaintiff need only show that he/she is a
member of a protected class, that he/she applied for and was
denied an available position for which he/she is qualified, and
that, after the rejection, the employer continued to seek
applicants who were no more qualified than plaintiff. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)
(setting forth the elements of a prima facie case under Title
VII). A plaintiff is not required to show that the person(s)
hired in his/her stead belong to a different gender or race.
We therefore reverse the grant of summary judgment and
remand the Title VII claims to the District Court.

I. Background

A. Alleged Discriminatory and Retaliatory Treatment

Appellant joined the FAA as a Senior System Engineer in
1991. Am. Compl. p 7, reprinted in Joint Appendix ("J.A.")
91-92. She was quickly promoted to the position of Acquisi-
tion Oversight Analyst, where she exercised an oversight
function for many of the major programs at FAA. Part of
her job was to report on problems concerning safety, fraud,
mismanagement, and abuse. Id. WW 9-10, reprinted in J.A. 92.
In 1992, Ms. Stella received an exceptional performance
rating and was nominated for awards. Decl. of Marie Stella
("Stella Decl.") p 9, reprinted in J.A. 41-42.

In her oversight capacity, appellant identified and reported
on serious problems with various major FAA programs. For
example, she found improper cost estimates and other irregu-
larities in the FAA's Oceanic Program. She reported these
to a supervisor and to the Office of the Inspector General.
The contract at issue was eventually terminated in 1999,
allegedly for the reasons appellant had pointed out years
earlier. Am. Compl. WW 12-13, reprinted in J.A. 92. Ms.
Stella also found problems with other programs, including the

Advanced Automation System Program. After reporting the
problems, Ms. Stella was removed as the senior system
engineer for that project. Id. p 16, reprinted in J.A. 93. She
also found major safety, technical, and funding problems with
the FAA's "Data Link" program. The Office of the Inspector
General is reportedly addressing these problems now, but
only after the FAA allegedly expended a billion dollars of
federal funds. Id. p 17, reprinted in J.A. 93-94.

After pointing out these and other instances of fraud,
waste, and abuse, appellant allegedly received unwarranted
criticism of her work and frequently was removed from
oversight positions. She also was excluded from meetings
where she had active oversight responsibilities. Id. WW 20-21,
reprinted in J.A. 95. After appellant reported her findings to
the Office of the Inspector General, the representative from
that office informed her that her safety was in danger, that
she should watch her back, that she should keep her docu-
ments in a safe place, and that her career with the FAA was
over. Id. p 37, reprinted in J.A. 98. Ms. Stella alleged that
her work computer, desk, house, and barn were broken into,
and that the FAA did nothing to address these incidents. Id.
p 42, reprinted in J.A. 99.

Appellant also alleged that she was treated worse than her
male co-workers. She alleged that the FAA failed to give her
credit for an award she had received, removed her from
oversight responsibilities, and assigned her to work for a
lower-level male employee. Id. WW 31-33, reprinted in J.A. 96-
97. She alleged that supervisors and colleagues gave her
unwarranted bad performance evaluations, made sexually
stereotyped remarks about her, and made rude comments
regarding equal employment opportunity charges she had
filed. Id. WW 25-28, 35, reprinted in J.A. 96-97. Ms. Stella
also alleged that the FAA took no corrective action when
assorted co-workers and managers used loud sexual language
and received pornographic material on the Internet, dissemi-
nated offensive e-mails about her, and told her they would not
work for a woman and were praying for God to punish her.
Stella Decl. WW 1-4, 14, reprinted in J.A. 40-1, 43; Am. Compl.
WW 22-24, reprinted in J.A. 95-96.

 Appellant alleged that since 1995, she has applied for two
SES positions for which she was qualified, but not selected.
Am. Compl. p 51, reprinted in J.A. 101; Stella Decl. p 8,
reprinted in J.A. 41. She also applied for lateral transfers to
high-visibility program management positions that she al-
leged would make her more likely to be promoted to SES.
Am. Compl. p 51, reprinted in J.A. 101; Stella Decl. p 6,
reprinted in J.A. 41. Less qualified males were selected, and
many of the males selected for the lateral transfers have
since advanced to SES. Am. Compl. p 51, reprinted in J.A.
101.

Finally, appellant pointed to an atmosphere of FAA animus
towards women. An SES manager conducted an investiga-
tion and found that other women at FAA corroborated appel-
lant's accounts of sex discrimination. Decl. of Loni Czekalski
p 5, reprinted in J.A. 49-50. The women who were inter-
viewed recounted stories of career opportunities that went to
men rather than to women, and of inappropriate remarks
about women. Id. p 6, reprinted in J.A. 50.

B. Procedural History

Appellant filed an action in the District Court for the
District of Columbia in 1997, asserting violations of Title VII
and the WPA. Appellees moved to dismiss or, in the alterna-
tive, for summary judgment. The District Court granted
appellees' motion to dismiss the WPA claims for lack of
jurisdiction. Specifically, the court held that under the Wen-
dell H. Ford Aviation Investment and Reform Act for the
21st Century, Pub. L. No. 106-181, 114 Stat. 61 (2000) ("Ford
Act"), FAA employees like Ms. Stella are required to exhaust
their administrative remedies as set forth in Title 5 of the
United States Code. Mem. Op. at 25. Under Title 5, most
federal whistleblowers must first bring their complaints to
the OSC. See 5 U.S.C. s 1214(a)(1)(A) (2000). If the OSC
terminates the investigation, then the employee may file a
whistleblower claim with the MSPB. See id. ss 1214(a)(3),
1221, 2302(b)(8). The MSPB's decision is appealable to the
Court of Appeals for the Federal Circuit. See id. s 7703.

 When appellant filed her complaint, however, FAA employ-
ees were not subject to the usual Title 5 procedures, because,
in 1995, Congress had directed the FAA to develop its own
personnel management system. Under that system, FAA
whistleblower claims could not be brought through the usual
route, and the MSPB lacked jurisdiction over FAA employ-
ees' claims. When Congress passed the Ford Act in 2000, it
enacted a retroactive provision requiring federal employees to
exhaust Title 5's administrative remedies. Thus, the District
Court found that appellant was required to go through the
OSC and the MSPB. Mem. Op. at 24-26. It accordingly
dismissed her WPA claims.

The District Court also granted appellees' motion for sum-
mary judgment on the Title VII claims. In her Opposition to
the FAA's motion, appellant argued, pursuant to Federal
Rule of Civil Procedure 56(f), that she could not fully respond
to the motion because the FAA had not yet given her certain
documents that she requested in discovery, including docu-
mentation about the promotions that were given during the
relevant time period. Pl.'s Opp. to Def.'s Mot. for Summ. J.
(July 31, 2000), at 17. In support of her argument, appel-
lant's attorney submitted a sworn declaration arguing that
Ms. Stella had still not received comparator data that would
help her establish details concerning who received promotions
during the relevant period. Decl. of Gary T. Brown ("Brown
Decl.") WW 8, 10, reprinted in J.A. 47-48. The District Court,
turning directly to the merits of the FAA's motion for sum-
mary judgment, failed to consider Ms. Stella's 56(f) argument.

In addressing appellant's Title VII claim, the District Court
found that appellant had not made out a prima facie case.
First, it held that most of the conduct she alleged did not
amount to an adverse employment action. Mem. Op. at 14.
The court found that the derogatory comments and e-mail
were not so egregious as to rise to the level of an adverse
action. Id. at 15 (citing Childers v. Slater, 44 F. Supp. 2d 8,
20 (D.D.C. 1999) (vacated in part on other grounds, 197
F.R.D. 185 (D.D.C. 2000))). The court also found that appel-
lant's allegations that she received involuntary lateral trans-
fers, and that she was not granted desired lateral transfers,

were not adverse employment actions. Id. at 15-17 (citing
Brown v. Brody, 199 F.3d 446 (D.C. Cir. 1999)). Likewise,
the court concluded that the unwarranted criticisms and low
performance evaluations were not adverse actions, since they
did not affect Ms. Stella's grade or salary level. Id. at 18
(citing Brown, 199 F.3d at 458).

Most importantly, the District Court held that, "[t]o the
extent that plaintiff claims her non-selection for certain SES
and program manager positions shows disparate treatment
under Title VII, plaintiff has failed to show that any of these
decisions were based on the plaintiff's gender. The FAA
selected male and female employees to fill these positions."
Id. at 17-18.

Ms. Stella appealed to this court. Appellees moved for
summary affirmance. A panel of this court granted summary
affirmance as to all of appellant's potential Title VII claims
except for those based on the FAA's failure to promote her to
the SES positions for which she had applied. The panel
found that none of the other events alleged by appellant rises
to the level of an adverse employment action. Stella v.
Mineta, No. 00-5458, Order (May 30, 2001) (citing Brown v.
Brody, 199 F.3d at 452-53).

II. Discussion

A. The Whistleblower Claims

The District Court correctly dismissed Ms. Stella's WPA
claims for want of jurisdiction. At the time appellant's claims
arose, she could not bring them to the OSC and the MSPB.
Although the Ford Act opened this avenue for FAA employ-
ees retroactively to April 1, 1996, appellant argues that the
District Court should have asserted jurisdiction to avoid the
injustice of sending her back to the OSC and MSPB at this
late stage. To understand why the court must reject appel-
lant's argument, we must review the statutory background of
the Ford Act.

The WPA provides most federal agency employees with
protection against agency reprisals for whistleblowing activi-

ty, such as disclosing illegal conduct, gross mismanagement,
gross wasting of funds, or actions presenting substantial
dangers to health and safety. See 5 U.S.C. s 2302(b)(8).
Under the procedures set forth in Title 5 of the U.S. Code, an
employee who believes she is the victim of an unlawful
reprisal must first bring her claim to the OSC, which investi-
gates the complaint. Id. s 1214; Weber v. United States, 209
F.3d 756, 758 (D.C. Cir. 2000) (describing whistleblower pro-
tection procedures under Title 5). If the OSC finds that
there was a prohibited personnel action as defined by s 2302,
it reports its findings to the MSPB, and it can petition the
MSPB on the employee's behalf. Weber, 209 F.3d at 758. If
the OSC finds no agency wrongdoing, then the employee
herself may bring an action before the MSPB. 5 U.S.C.
ss 1221; 1214(a)(3); Weber, 209 F.3d at 758. The MSPB's
decision is appealable to the Federal Circuit. 5 U.S.C.
s 7703; Weber, 209 F.3d at 758. Under no circumstances
does the WPA grant the District Court jurisdiction to enter-
tain a whistleblower cause of action brought directly before it
in the first instance.

Unfortunately for Ms. Stella, the Title 5 avenue was not
open to FAA whistleblowers between 1996 and 2000, because
Congress, in 1995, enacted the Department of Transportation
and Related Agencies Appropriations Act, 1996, Pub. L. No.
104-50, s 347, 109 Stat. 436, 460 (1995), as amended by Pub.
L. No. 104-122, s 1, 110 Stat. 876, 876 (1996) ("DOT Act").
In the DOT Act, Congress directed the FAA to establish its
own personnel management system that would address the
"unique demands" of its workforce. Id. The FAA according-
ly established the FAA Personnel Management System. See
Federal Aviation Administration Personnel Management Sys-
tem (Mar. 28, 1996), reprinted in J.A. 108-49. Under the
applicable grievance procedure, an FAA employee in Ms.
Stella's position was required to file an internal grievance
with her supervisor and then file a formal grievance with a
second-line manager. See id. Chapter III, s 4, reprinted in
J.A. 137-41. The decision of the second-line manager was not
subject to review in any forum. Id. s 4(f)(ii), reprinted in
J.A. 140.

 Nor could an FAA employee in Ms. Stella's position have
brought a whistleblower action in the OSC and MSPB, and
appealed an adverse decision to the Federal Circuit. Under
DOT Act s 347(b), while s 2302's substantive prohibition
against reprisals still applied to FAA whistleblowers, the
sections of Title 5 providing for OSC and MSPB enforcement
jurisdiction over those matters did not. See DOT Act
s 347(b), 109 Stat. at 460; Diefenderfer v. MSPB, 194 F.3d
1275, 1278-79 (Fed. Cir. 1999). Thus, under the DOT Act,
FAA employees were "protected against whistleblowing re-
prisals" in the abstract, but their recourse lay solely "within
the FAA personnel system and under its procedures." Dief-
enderfer, 194 F.3d at 1279. It would therefore have been
futile for Ms. Stella to bring her claims to the MSPB at the
time they arose.

In April, 2000, Congress enacted the Ford Act, amending
Title 49 of the U.S. Code. There, Congress provided that
FAA employees could submit appeals to the MSPB and seek
judicial review of its decisions. Ford Act s 307(a), 114 Stat.
at 124-25 (amending 49 U.S.C. s 40122(g)(3)). Congress also
provided that FAA employees would once again be subject to
the whistleblower protection procedures of Title 5, this time
"including the provisions for investigation and enforcement
as provided in Chapter 12 of title 5." Id. (amending 49
U.S.C. s 40122(g)(2)(A)) (emphasis added). Congress made
this part of the Ford Act retroactive to April 1, 1996. Id.
(amending 49 U.S.C. s 40122(g)(4)); see also Miller v. Dep't
of Transp., 86 M.S.P.R. 293, 297-98 (2000) (holding that
Congress made s 307 of the Ford Act retroactive to April 1,
1996, as an exception to the general effective date for other
provisions of the Act).

Since the enactment of the Ford Act, the MSPB has taken
the position that it now has jurisdiction over cases of FAA
employees for any actions appealable to the MSPB as of
March 31, 1996. See Miller, 86 M.S.P.R. at 298. The MSPB
has also recently clarified that an employee in Ms. Stella's
position must file a new complaint with the OSC and allow it
to be investigated under the OSC's retroactive Ford Act
authority before proceeding to the MSPB. See Schaefer v.
Dep't of Transp., 87 M.S.P.R. 37, 42 (2000) (finding that the

purpose of the exhaustion requirement would be thwarted if
the OSC were not given a chance to investigate the whistle-
blower's complaint under the retroactive authority given to
the OSC by the Ford Act).

From the foregoing, it should be clear that Ms. Stella may
now file a new complaint with the OSC, which has retroactive
authority under the Ford Act to investigate it. If she is not
satisfied with the OSC's disposition of her case, Ms. Stella
may proceed to the MSPB, also vested with retroactive
authority over the cases of FAA whistleblowers. She may
then appeal the MSPB's decision to the Court of Appeals for
the Federal Circuit.

Appellant argues that the District Court should have exer-
cised its discretion to excuse her failure to exhaust adminis-
trative remedies, given that it was impossible for her to do so
at the time the case arose. In so arguing, appellant invokes
the fact that had she been able to bring both discrimination
and WPA claims to the MSPB as a "mixed case," and had the
MSPB rendered an unfavorable decision, appellant could have
joined all of her claims and appealed to the District Court.
See 5 U.S.C. s 7703(b)(2), (c); Barnes v. Small, 840 F.2d 972,
979 (D.C. Cir. 1988) (stating that where the MSPB decides a
case combining discrimination and non-discrimination claims,
the District Court takes jurisdiction over appeals from both
determinations). The "mixed case" argument does not save
appellant's claims, however, because even that route to Dis-
trict Court would have required her to initiate her action at
the MSPB, which she did not, and could not, do. Further-
more, because the District Court lacked jurisdiction to hear a
whistleblower claim in the first instance, the court lacked the
power to excuse Ms. Stella's failure to exhaust her adminis-
trative remedies.

Even if the District Court had the discretion to hear Ms.
Stella's claims, it did not abuse that discretion by declining to
do so. Appellant expresses the concern that her claims will
now be stale by MSPB standards, or that there will be some
other time bar to her initiating the OSC/MSPB process. At
oral argument, the FAA stated its position that there were no

time bars to appellant's now bringing her claims to the OSC
and the MSPB. The FAA agreed that, under both the Ford
Act and the prevailing case law, Ms. Stella's claims are not
too old to be pursued before the OSC, MSPB, and, if neces-
sary, the Federal Circuit. The FAA also stated that it would
have no jurisdictional objection to Ms. Stella bringing this
case to the OSC and going forward with the OSC/MSPB
route. Thus, if Ms. Stella follows this route, she has FAA's
assurance that the agency will not argue that her claims are
untimely or wanting for lack of jurisdiction.

B. The Title VII Prima Facie Case

With respect to appellant's Title VII claims, the District
Court concluded that Ms. Stella did not make out a prima
facie case of discrimination because the FAA selected both
male and female employees to fill the contested SES posi-
tions. Mem. Op. at 17-18. In so ruling, the court applied the
wrong legal standard for a prima facie case of discrimination.
Discrimination against federal employees on the basis of sex
is prohibited by 42 U.S.C. s 2000e-16(a), while the more
familiar s 2000e-2(a) governs discrimination by private em-
ployers. See Brown, 199 F.3d at 452. In both contexts, the
legal analysis is the same: the familiar burden-shifting test of
McDonnell Douglas. Id.

Under McDonnell Douglas, it is the plaintiff's burden to
establish a prima facie case of discrimination by a preponder-
ance of the evidence. 411 U.S. at 802; Tex. Dep't of Cmty.
Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). If the
plaintiff establishes a prima facie case, the employer must
then articulate a legitimate, nondiscriminatory reason for its
actions. McDonnell Douglas, 411 U.S. at 802. The plaintiff
must then demonstrate that the employer's stated reason was
pretextual and that the true reason was discriminatory. Id.
at 804; St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08
(1993).

McDonnell Douglas involved a claim of racial discrimina-
tion in hiring. The Supreme Court explained that the plain-
tiff could establish his prima facie case of discrimination by
showing that he belonged to a racial minority, that he applied

and was qualified for an available position, that he was
rejected despite his qualifications, and that, after his rejec-
tion, the employer continued to seek applicants who were no
more qualified than plaintiff. 411 U.S. at 802. The Court
never suggested that the plaintiff's prima facie case would
automatically be extinguished if the position were filled by
someone who was also a member of the plaintiff's protected
class. The Court cautioned that, because the facts of Title
VII claims vary, its specifications of the prima facie case in
McDonnell Douglas might not be applicable to every factual
situation. Id. at 802 n.13; see also Swierkiewicz v. Sorema
N.A., 122 S. Ct. 992, 997 (2002) (stating that the requirements
of the prima facie case can vary depending on context and
"were 'never intended to be rigid, mechanized, or ritualistic' ")
(quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577
(1978)). This court, like our sister circuits, requires a plaintiff
to state a prima facie claim of discrimination by establishing
that: "(1) she is a member of a protected class; (2) she
suffered an adverse employment action; and (3) the unfavora-
ble action gives rise to an inference of discrimination."
Brown, 199 F.3d at 452.

The District Court's holding that Ms. Stella was required to
show that the SES positions were not filled by women finds
no support in McDonnell Douglas. In International Broth-
erhood of Teamsters v. United States, 431 U.S. 324, 358 n.44
(1977), the Court explained the function served by the
McDonnell Douglas formula. The Court stated that, under
McDonnell Douglas, a plaintiff must show that his rejection
is not attributable to "the two most common legitimate rea-
sons on which an employer might rely to reject a job appli-
cant: an absolute or relative lack of qualifications or the
absence of a vacancy in the job sought." Id. The Court
further explained that "[e]limination of these reasons for the
refusal to hire is sufficient, absent other explanation, to create
an inference that the decision was a discriminatory one." Id.
The Court did not discuss the factor relied on by the District
Court, and that factor is not relevant to the analysis set forth
by the Court in Teamsters.

 The point was made even more clearly in O'Connor v.
Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996),
an age discrimination case. In O'Connor, a unanimous Court
found the fact that the "plaintiff was replaced by someone
outside the protected class" not to be a "proper element of
the McDonnell Douglas prima facie case." Id. Courts of
Appeals have applied the Supreme Court's holding in O'Con-
nor to the sex discrimination context. In Pivirotto v. Innova-
tive Systems, Inc., 191 F.3d 344, 347 (3d Cir. 1999), the Third
Circuit "join[ed] seven other circuits in holding that a plaintiff
claiming discriminatory firing need not prove, to make out a
prima facie case, that she was replaced by someone outside
the relevant class" (footnote omitted). The court noted the
Supreme Court's oft-recited qualification that an important
function of the prima facie case is to weed out the most
common lawful reasons for the defendant's action, such as the
plaintiff's lack of qualifications or the elimination of the
position altogether. Id. at 352 (citing Burdine, 450 U.S. at
253-54). It also pointed out that even if a plaintiff was
replaced by someone within her class, she could still demon-
strate that the employer treated her worse than others
because she was a member of the protected class. Id. at 353.
She may have been "treated differently from similarly situat-
ed male employees." Id. at 353-54.

Nearly every Court of Appeals to consider the issue, both
before and after O'Connor, has agreed that the fact that an
employer replaces a plaintiff with a person from within the
same protected class is not, by itself, grounds for dismissing a
Title VII claim. See Perry v. Woodward, 199 F.3d 1126,
1136-41 (10th Cir. 1999), cert. denied, 529 U.S. 1110 (2000);
Nieto v. L & H Packing Co., 108 F.3d 621, 624 & n.7 (5th Cir.
1997); Carson v. Bethlehem Steel Corp., 82 F.3d 157, 158-59
(7th Cir. 1996) (per curiam); Jackson v. Richards Med. Co.,
961 F.2d 575, 587 n.12 (6th Cir. 1992); Cumpiano v. Banco
Santander P.R., 902 F.2d 148, 154-55 (1st Cir. 1990); Walker
v. St. Anthony's Med. Ctr., 881 F.2d 554, 558 (8th Cir. 1989);
Meiri v. Dacon, 759 F.2d 989, 995-96 (2d Cir.), cert. denied,
474 U.S. 829 (1985); Howard v. Roadway Express, Inc., 726
F.2d 1529, 1534-36 (11th Cir. 1984). But see Brown v.

McLean, 159 F.3d 898, 905 (4th Cir. 1998) ("In order to make
out a prima facie case of discriminatory termination, a plain-
tiff must ordinarily show that the position ultimately was
filled by someone not a member of the protected class."), cert.
denied, 526 U.S. 1099 (1999).

This court has not faced the question directly until now. In
answering it we hold, in conformity with the overwhelming
majority of other circuits to consider the issue, that a plaintiff
in a discrimination case need not demonstrate that she was
replaced by a person outside her protected class in order to
carry her burden of establishing a prima facie case under
McDonnell Douglas. To the extent the prior decisions of this
court have, when reciting the elements of a prima facie case
in passing, created confusion on this point, we now clear up
such confusion by answering the question we now squarely
confront for the first time. Cf. Cones v. Shalala, 199 F.3d
512, 517 (D.C. Cir. 2000) (stating in dictum that a plaintiff
establishes a prima facie case by showing that she is female,
that she was refused a position for which she applied and was
qualified, and that the employer filled the position with a
male) (quoting Kolstad v. Am. Dental Ass'n, 108 F.3d 1431,
1436 (D.C. Cir. 1997), modified in part on other grounds, 139
F.3d 958 (D.C. Cir. 1998) (en banc), vacated, 527 U.S. 526
(1999)); cf. also Brown, 199 F.3d at 451 (approving the
District Court's observation that a sex discrimination claim
regarding lateral transfers would be baseless because two of
the employees selected were women, without discussing the
elements of the McDonnell Douglas prima facie case).

Thus, although women and men may have been promoted
to the SES positions for which Ms. Stella applied, she may
nonetheless be able to demonstrate that she received unfavor-
able treatment in the promotion process because she is a
woman. There is no question that failure to promote is an
"adverse action" for purposes of the prima facie case. See
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998).
We reverse the District Court's holding that because women
were promoted to SES positions, appellant could not carry
her burden of establishing a prima facie case of discrimina-
tion.

C. The District Court Should Determine Whether Further
Discovery is Necessary

Appellees argue that even if the District Court applied an
erroneous standard in evaluating appellant's prima facie case,
the error was harmless because appellant did not come forth
with sufficiently specific facts to establish the other elements
of her prima facie case: namely, that she applied for open
SES positions for which she was qualified and that the FAA
passed her over for those promotions while continuing to seek
other applicants. Ms. Stella alleged only that she applied for
two open SES positions since 1995 for which she was qualified
but was not selected. The FAA argues that she was required
to give more details, including the names of the positions, the
selecting officials, the exact dates, and so on.

We reject this argument. First, appellees conceded at oral
argument that additional specificity is not required for appel-
lant to establish a prima facie case of discrimination. The
FAA did not argue that Ms. Stella did not apply for the
positions, that she was not qualified for them, or that no one
was promoted to SES during the relevant period. Thus, once
advised of the correct legal standard, the District Court may
conclude that Ms. Stella established her prima facie case by a
preponderance of the evidence.

Even if more specificity is required, the District Court
should determine in the first instance whether to defer ruling
on the motion for summary judgment until those details can
be obtained through discovery that appellant has requested.
In her Opposition to Defendant's Motion for Summary Judg-
ment, Ms. Stella notified the District Court that the FAA had
not responded to her requests for documents, including docu-
ments pertaining to the employees who did receive pro-
motions during the relevant time period. Pl.'s Opp. to Def.'s
Mot. for Summ. J. at 17. She characterized this request as
"relevant comparator data to support that adverse actions
occurred." Id. In a sworn declaration in support of Ms.
Stella's Opposition, her attorney stated that Ms. Stella had
sought comparator data on promotions and awards for male
employees and documentation pertaining to the people who

received promotions during the relevant time period. Brown
Decl. WW 8, 10, reprinted in J.A. 47-48. He stated that this
information would be "particularly relevant since Defendant
has claimed there exists no adverse action and Plaintiff points
to her repeated denials of promotions." Id. p 10, reprinted in
J.A. 48.

The District Court granted summary judgment, holding
that Ms. Stella could not prevail on her discrimination claim
because men and women were promoted to the SES positions
for which she had applied. Mem. Op. at 17-18. It follows
from the District Court's reasoning that the requested docu-
ments could not have helped her to establish a prima facie
case of discrimination. Had the District Court applied the
correct legal standard, it may not have granted summary
judgment without requiring the FAA to supply the requested
data regarding the SES positions that were open during the
relevant period and the employees who were chosen to fill
those positions. Alternatively, the court might have deter-
mined that no additional details were necessary to establish
that appellant applied for promotions for which she was
qualified and did not receive them.

District Courts are afforded substantial discretion to man-
age discovery as they see fit. Moreover, District Courts are
afforded discretion in ruling on requests for additional discov-
ery pursuant to Rule 56(f). See Taylor v. FDIC, 132 F.3d
753, 765 (D.C. Cir. 1997). Having corrected the standard
pursuant to which the District Court must evaluate appel-
lant's prima facie case, we remand so that the District Court
may determine whether further discovery is called for. If the
District Court determines that appellant has submitted facts
sufficient to establish a prima facie case, it must proceed with
the burden-shifting analysis of McDonnell Douglas and evalu-
ate the FAA's proffered reasons for declining to promote Ms.
Stella to the SES positions for which she applied. The
information requested by appellant may also be relevant in
the future in determining whether any reasons the FAA
offers for failing to promote Ms. Stella are pretextual. See
generally Paquin v. Fed. Nat'l Mortgage Ass'n, 119 F.3d 23,
25, 28-29 (D.C. Cir. 1997) (reversing the District Court's grant

of summary judgment and remanding for further discovery
where the plaintiff in an employment discrimination suit had
requested, but had not received, certain comparator data).

III. Conclusion

For the foregoing reasons, we affirm the District Court's
dismissal of Ms. Stella's WPA claims, reverse the District
Court's grant of summary judgment, and remand to the
District Court for further proceedings.