Teneyck, Lillie v. Omni Shoreham Hotel

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 15, 2004 Decided May 7, 2003

No. 03-7022

LILLIE TENEYCK,
APPELLANT

v.

OMNI SHOREHAM HOTEL,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 99cv03315)

William S. Stancil argued pro hac vice for appellant. On
the briefs was Lillie Teneyck, pro se.
Scot A. Hinshaw argued the cause for appellee. With him
on the brief was A. Neal Barkus.
Before: EDWARDS and HENDERSON, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge EDWARDS.

Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
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EDWARDS, Circuit Judge: Appellant Lillie Teneyck applied
for a position as a housekeeper at the Omni Shoreham Hotel,
in Washington, D.C. Teneyck alleges that Omni hired her for
the position, but then turned her away before assigning her
any work. Teneyck brought suit in the District Court, claim-
ing that Omni had discriminated against her on the basis of
her race and national origin, in violation of Title VII of the
Civil Rights Act of 1964 (‘‘Title VII’’), 42 U.S.C. § 2000e et
seq. (2000), and on the basis of her age, in violation of the Age
Discrimination in Employment Act of 1967 (‘‘ADEA’’), 29
U.S.C. §§ 621-634 (2000). The suit proceeded to trial and,
after Teneyck rested her case before the jury, Omni moved
for judgment as a matter of law. The District Court granted
judgment to Omni on all claims, holding that Teneyck had
failed to present evidence sufficient to make out a prima facie
case of national-origin, race, or age discrimination.
We affirm the judgment for Omni as to all claims. Ten-
eyck expressly conceded below that she did not offer suffi-
cient evidence to support her national-origin discrimination
claim. That claim was thus waived and is not before us.
Although some aspects of the District Court’s treatment of
Teneyck’s race discrimination claim are problematic, our de
novo review of the record makes clear that Teneyck offered
no evidence indicating that the position for which she applied
remained open or that Omni continued to seek applicants of
her qualifications. Consequently, she failed to establish one
of the key elements of a prima facie case for a Title VII
failure-to-hire claim, as set forth in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). Finally, by failing to adduce
any evidence suggesting that she was disadvantaged in favor
of a younger person, Teneyck failed to establish a required
element of a prima facie case of age discrimination under the
ADEA. We find no merit in Teneyck’s claim, raised for the
first time on appeal, that she was denied a fair trial because
of the District Court’s allegedly hurried management of the
trial proceedings.
 3

I. BACKGROUND
In September 1996, Teneyck applied for a job as a house-
keeper at Omni. The parties agree that Teneyck either was
not hired or was hired but not permitted to work. On
October 2, 1996, Teneyck filed a race and age discrimination
complaint against Omni with the District of Columbia Depart-
ment of Human Rights and Local Business Development
(‘‘Department’’), the predecessor of the Office of Human
Rights. The complaint was cross-filed with the Equal Em-
ployment Opportunity Commission (‘‘EEOC’’). After an in-
vestigation, the Department issued a finding of no probable
cause. The EEOC adopted the Department’s findings and, in
September 1999, issued Teneyck a right-to-sue letter.
Teneyck filed suit against Omni in the District Court on
December 14, 1999, proceeding pro se. The court appointed
counsel for Teneyck, though she ultimately retained her own
counsel. She later filed an amended complaint, asserting
claims of race and national-origin discrimination, under Title
VII, and age discrimination, under the ADEA. After con-
ducting some discovery, Omni moved for summary judgment
on all claims, arguing that Teneyck had failed to make out a
prima facie case of discrimination under Title VII or the
ADEA. The District Court denied Omni’s motion. See Ten-
eyck v. Omni Shoreham Hotel, Civ. Action No. 99-3315
(D.D.C. Sept. 6, 2002). The court found that Teneyck had
established a prima facie case as to all claims, and that there
remained a genuine issue of material fact as to Omni’s
asserted reason for not hiring Teneyck, i.e., that she allegedly
was unable to work Sundays. Id., slip op. at 5-7.
The trial began on Tuesday, January 28, 2003. The judge
informed the jury at the outset of the proceedings that he had
some other obligations to which he would need to attend
during the trial. First, he indicated that he would have to
take a brief recess later that day – which he did – to confer
with a jury that was still deliberating in a criminal trial over
which he was presiding. January 28, 2003 Tr. (‘‘Tr. I’’) at 93,
114. The judge also said that he might have to leave around
4:00 p.m. that day to attend his daughter’s basketball game.
 4

Id. at 93. As it turned out, the game was canceled and the
court did not recess until 5:06 p.m. Id. at 144-45, 177.
Finally, the judge explained that the trial could not proceed
on Friday, January 31, 2003, because the judge had a medical
procedure scheduled for that day. Id. at 94. If necessary, he
said, the trial could continue into the following week. Id.
Teneyck’s counsel voiced no objection to any of the scheduling
issues raised by the judge.
Before the trial commenced, counsel for Omni told the
judge that one of Omni’s key witnesses was present but
needed to be in Boston, Massachusetts, the following day for
work. Counsel requested to put the witness on the stand on
the first day of trial, so that she would not have to stay
overnight in Washington. Id. at 94-95. Teneyck’s counsel
said that Teneyck’s case-in-chief would require a couple of
hours. Id. at 95. The judge then indicated that he would try
to get Omni’s witness on the stand that day. Id. Teneyck’s
counsel raised no objection.
Teneyck testified on her own behalf as the sole witness in
her case-in-chief. She offered the following testimony rele-
vant to this appeal. Teneyck was 68 years of age at the time
of trial. Id. at 106. In September of 1996, she applied for a
part-time position as a housekeeper with Omni. Id. at 107,
121. At the time she applied for the position, Teneyck was
preparing to retire from her job with the federal government,
where she had worked for over 20 years. Id. at 111, 114, 130.
Teneyck explained that she applied for the position in order
to supplement her retirement income. Id. at 115-16. She
had worked for Omni as a housekeeper from 1965 to 1970,
prior to taking a job with the government. Id. at 106-07, 120.
Teneyck inquired about part-time housekeeping work at
Omni’s personnel office and was directed to a vacancy notice
for a part-time position, which was posted on a bulletin board
in the office. Id. at 108. She filled out an application,
indicating her age as 61, and gave it to a ‘‘clerk.’’ Id. at 108-
09, 128. The clerk was one of two Black women in the office,
both of whom Teneyck characterized as ‘‘nice and friendly.’’
Id. at 121-22. Teneyck understood from her conversation
 5

with one of these women that she was hired for the part-time
housekeeping position. Id. at 109. The clerk then called
Omni’s Executive Housekeeper, who met with Teneyck in a
side room in the office for about 20 minutes. Id. at 109-10,
122. Teneyck understood the purpose of this meeting to be
to explain her duties and to tell her when to come to work.
Id. at 109. She offered no testimony as to the race, national
origin, or age of the Executive Housekeeper.
Teneyck described the ensuing interview, as follows: The
Executive Housekeeper asked: ‘‘Why would you want to
clean, want this type of job if you just came from the
Government? Why do you want to do this work?’’ Id. at 110.
Teneyck responded that she had worked as a housekeeper at
Omni before and did not mind the work. Id. The Executive
Housekeeper told Teneyck that the position was full time and
would pay minimum wage and that she would not have
insurance or benefits. Id. at 110-11. Teneyck assured her
that she still wanted the job, and the Executive Housekeeper
instructed Teneyck to call her back the next day to find out
when to start. Id. at 111-12. When she called the next day,
however, the Executive Housekeeper hung up on her. Id. at
112-13, 116. Teneyck called again a couple of hours later and
asked for the Executive Housekeeper, but the Executive
Housekeeper refused to speak with her. Id. Teneyck did
not call Omni again or return to inquire about the position for
which she had applied. Id. at 113, 126-27. She never found
out whether the job remained open or, if so, who Omni hired
for the position. Id. at 120.
Teneyck testified that the Executive Housekeeper never
asked her whether she could work weekends. Id. at 111.
Teneyck stated that she expected to work Saturdays and
Sundays as part of the position, that she had worked Satur-
days and Sundays while working for the government, and
that she was not attending church at the time such that she
would have any problem with working on Sundays. Id. at
111, 114-15, 148. On cross-examination, counsel for Omni
asked whether Teneyck was ‘‘aware that the Omni Shoreham
didn’t hire [her] because they claimed that [she] said [she]
couldn’t work on Sundays.’’ Id. at 128-29. She responded:
 6

‘‘That’s not trueTTTT I am aware that they said that, but it is
not true.’’ Id. at 129.
After Teneyck’s testimony on direct, cross-, and redirect
examination was complete, the trial judge asked Teneyck’s
counsel whether he had any other evidence. Counsel re-
sponded that Teneyck was prepared to rest her case except
for rebuttal. Id. at 151. The judge again asked whether
Teneyck was prepared to rest her case-in-chief, and counsel
answered in the affirmative. Id. Omni then moved for
judgment as a matter of law pursuant to Federal Rule of Civil
Procedure 50(a) on the grounds that Teneyck had not pre-
sented any evidence from which a reasonable jury could infer
discrimination and therefore failed to make out a prima facie
case. Id. at 152. The judge heard some argument on the
motion but ‘‘reserved’’ ruling on it until the following day, in
order to allow Omni’s first witness to testify before she
returned to Boston that evening. Id. at 156. The judge at
this point addressed Teneyck’s counsel:
I will have you rest before the jury. I will go ahead
and hear this testimony so we can finish that before
the end of the day with the understanding that I am
still reserving my ruling on whether the Motion to
Dismiss [i.e., the Rule 50(a) motion] is appropriate
and I will hear that tomorrow even though I have
started to hear evidence or testimony from the
Defendant only because we have got a problem, [a]
logistical problem, with the witness’ availability.
Id. Counsel agreed and proceeded to rest Teneyck’s case
before the jury. Id. at 156-57.
Omni’s witness – Omni’s former Executive Housekeeper
Freiweini Kahasay – then took the stand. She explained the
interview process for housekeepers at Omni and then testified
about her interview with Teneyck in September 1996. Id. at
159-64. Kahasay stated that at the time she was ‘‘in desper-
ate need of hiring people for that position.’’ Id. at 164. She
recalled having a 10-minute interview with Teneyck, and
stated that Teneyck had said during the interview that she
could not work Sundays because she had church responsibili-
 7

ties. Id. at 164-66. Kahasay explained that she instructed
her colleague in the Human Resources Department, Paula
Nesmith, to mark Teneyck’s application as a ‘‘no,’’ because
Teneyck was unable to work Sundays. Id. at 167. Apart
from this problem, Kahasay said, she would have hired Ten-
eyck. Id. Kahasay did not recall Teneyck calling the follow-
ing day, but said that the normal procedure if an applicant
called would be to refer the applicant to Human Resources.
Id. at 168. Kahasay said she had hired someone for the
position for which Teneyck applied, and that she had hired a
Black woman for at least one of the four part-time housekeep-
ing positions available at the time. Id. at 168-69. After
Teneyck’s counsel cross-examined Kahasay, court was ad-
journed.
The following morning, the District Court heard argument
on the Rule 50(a) motion. Teneyck’s counsel sought to rely
on the testimony of Omni’s lone witness, but the court would
not permit it. The trial judge engaged counsel in the follow-
ing colloquy:
The Court: I only went forward with [the defen-
dant’s] case, where [the testimony in question] came
out, because we were trying to accommodate the
witness.
Mr. Stancil: Well, that is now on the record.
The Court: No. No. No. Remember what I said.
I said I am going to make my ruling based upon –
only because of the time circumstances, I didn’t
address the issue of the motion prior to that witness
testifying. So I don’t think you gain the benefit of
me having let that witness testify to accommodate
the witness so that she could go to Boston. I think
your case rises or falls based upon what you pre-
sented in your case in chief.
Mr. Stancil: All rightTTTT
January 29, 2003 Tr. (‘‘Tr. II’’) at 6. During the ensuing
discussion, Teneyck’s counsel conceded that Teneyck had not
offered sufficient evidence to establish her national-origin
 8

claim. Id. at 10. After further argument on the race and
age discrimination claims, the court granted Omni’s motion
for judgment as a matter of law. Id. at 30.
On March 19, 2003, the District Court issued an order and
memorandum opinion to this effect. Teneyck v. Omni Shore-
ham Hotel, Civ. Action No. 99-3315 (D.D.C. Mar. 19, 2003).
The court dismissed the national-origin discrimination claim
on the basis of Teneyck’s counsel’s concession of that claim.
Id., slip op. at 1 n.1. The court granted judgment as a matter
of law to Omni on the race and age discrimination claims,
finding that Teneyck had not proffered sufficient evidence
from which discrimination could be inferred. Id. at 6-9.
Teneyck appealed, proceeding pro se with pro bono assistance
from her trial counsel.

II. DISCUSSION
A. Judgment As a Matter of Law Under Rule 50(a)
Rule 50(a) provides in relevant part that,
[i]f during a trial by jury a party has been fully
heard on an issue and there is no legally sufficient
evidentiary basis for a reasonable jury to find for
that party on that issue, the court may determine
the issue against that party and may grant a motion
for judgment as a matter of lawTTTT
FED. R. CIV. P. 50(a)(1). A Rule 50(a) motion must specify not
only the judgment sought, but also ‘‘the law and the facts on
which the moving party is entitled to the judgment.’’ FED. R.
CIV. P. 50(a)(2).
Rule 50(a) has two primary and interrelated purposes. It
permits the court to avoid the time and expense of trial on
issues or claims that lack a legally sufficient evidentiary basis.
See FED. R. CIV. P. 50 (Advisory Committee Note on the 1991
Amendment); 9 JAMES WM. MOORE ET AL., MOORE’S FEDERAL
PRACTICE § 50.02 (3d ed. 2004). At the same time, a Rule
50(a) motion gives the court and the nonmoving party notice
of any deficiencies in the nonmoving party’s case at a time
when such deficiencies can still be corrected. See id.
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As a general matter, a party has been ‘‘fully heard’’ for
purposes of Rule 50(a) when the party has submitted all of its
evidence on the relevant claim or issue. See 9 MOORE ET AL.,
supra, § 50.20[2]. Accordingly, a defendant may move for
judgment as a matter of law at the close of the plaintiff’s
evidence. Id. The drafters of the 1991 amendment to Rule
50 emphasized, however, that ‘‘[i]n no event’’ should judgment
be granted under Rule 50(a) unless the nonmoving party has
‘‘been apprised of the materiality of the dispositive fact and
been afforded an opportunity to present any available evi-
dence bearing on that fact.’’ FED. R. CIV. P. 50 (Advisory
Committee Note on the 1991 Amendment); see also Waters v.
Young, 100 F.3d 1437, 1441 (9th Cir. 1996). Relatedly, a
party who has rested may move to reopen her case in order
to cure an evidentiary deficiency identified in a Rule 50(a)
motion. See, e.g., Garcia v. Woman’s Hosp. of Tex., 97 F.3d
810, 813-14 (5th Cir. 1996).
We review de novo the grant of judgment as a matter of
law pursuant to Rule 50(a). Borgo v. Goldin, 204 F.3d 251,
254 (D.C. Cir. 2000). In so doing, we must draw all reason-
able inferences from the evidence in favor of the nonmoving
party, and we must not weigh the evidence or assess witness
credibility. See Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150 (2000); Borgo, 204 F.3d at 254. With these
standards in mind, we turn to the substance of the case
before us.
B. Title VII Claims
1. The Legal Framework Under Title VII
Title VII provides, in relevant part, that it is unlawful for
an employer ‘‘to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privi-
leges of employment, because of such individual’s race TTT or
national origin.’’ 42 U.S.C. § 2000e-2(a)(1). In the absence
of direct evidence of discrimination, disparate-treatment
claims under Title VII are analyzed under the burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). The McDonnell Douglas framework
 10

establishes ‘‘an allocation of the burden of production and an
order for the presentation of proof’’ in such cases. St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993).
Under this framework, the plaintiff must first establish, by
a preponderance of the evidence, a ‘‘prima facie case’’ of
discrimination. The burden of doing so is ‘‘not onerous.’’
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253
(1981). McDonnell Douglas identified the paradigmatic ele-
ments of a prima facie case in a Title VII claim involving a
failure to hire. Under this formulation, the plaintiff must
show:
(i) that he belongs to a [protected class]; (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 per-
sons of [the plaintiff’s] qualifications.
McDonnell Douglas, 411 U.S. at 802.
The Supreme Court has emphasized that the McDonnell
Douglas model of the prima facie case is not intended to be
‘‘rigid, mechanized, or ritualistic’’ and that its requirements
can vary depending upon the factual context. Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 512 (2002) (quoting Furnco
Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)). With this
in mind, the court in Stella v. Mineta articulated an alterna-
tive formulation of the Title VII prima facie case, pursuant to
which a plaintiff must establish that ‘‘(1) she is a member of
the protected class; (2) she suffered an adverse employment
action; and (3) the unfavorable action gives rise to an infer-
ence of discrimination.’’ 284 F.3d 135, 145 (D.C. Cir. 2002)
(quoting Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999)).
This alternative formulation is designed to accommodate the
wide variety of employment discrimination claims that extend
beyond the typical ‘‘failure-to-hire’’ situations of the sort
confronted in McDonnell Douglas. However, the formula
articulated in Stella does not supplant McDonnell Douglas’s
paradigmatic elements of a prima facie case. McDonnell
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Douglas’s formulation of the required elements of a prima
facie case remains the standard in typical failure-to-hire
cases. See, e.g., Morgan v. Fed. Home Loan Mortgage Corp.,
328 F.3d 647, 650 (D.C. Cir.), cert. denied, 124 S. Ct. 325
(2003).
The decision in Stella also held that a plaintiff in a Title VII
case is not required to show that she was disadvantaged in
favor of a person outside of the protected class. 284 F.3d at
146. In other words, in order to make out a prima facie case,
it is not necessary for an African-American plaintiff to show
that she was disadvantaged by the employer’s hiring of a
Caucasian applicant, or for a female plaintiff to show that a
male was hired in her stead. In reaching this result, Stella
adopted the position followed by the vast majority of our
sister circuits that have ruled on this issue. Id. at 145-46.
The employer’s hiring of a person of the same race or sex as
the plaintiff might be relevant in assessing the merits of a
plaintiff’s claim beyond the stage of the prima facie case, but
it is not a factor in the plaintiff’s establishment of a prima
facie case. As the Third Circuit noted in Pivirotto v. Innova-
tive Systems, Inc., 191 F.3d 344 (3d Cir. 1999), even if a
plaintiff is replaced by someone within her class, she could
still demonstrate that the employer treated her worse than
others because she was a member of the protected class. Id.
at 353. For example, a female employee may have been
‘‘treated differently from similarly situated male employees.’’
Id. at 353-54.
McDonnell Douglas principally demands ‘‘that the alleged
discriminatee demonstrate at least that his rejection did not
result from the two most common legitimate reasons on which
an employer might rely to reject a job applicant: an absolute
or relative lack of qualifications or the absence of a vacancy in
the job sought.’’ Int’l Bhd. of Teamsters v. United States,
431 U.S. 324, 358 n.44 (1977). As the Supreme Court has
noted, ‘‘[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. Therefore,
to require a Title VII plaintiff to show that someone outside
of her protected class was hired or promoted in her stead
 12

would be to graft an additional element onto the McDonnell
Douglas model of the prima facie case. Stella forecloses this
possibility.
Once a prima facie case has been established, ‘‘the plaintiff
in a Title VII action creates a rebuttable ‘presumption that
the employer unlawfully discriminated against’ him.’’ United
States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,
714 (1983) (quoting Burdine, 450 U.S. at 254). Establishment
of a prima facie case triggers the employer’s burden to
produce admissible evidence that, if believed, would establish
that the employer’s action was motivated by a legitimate,
nondiscriminatory reason. Burdine, 450 U.S. at 254-56. The
employer’s burden is one of production, not persuasion. Id.
When the employer meets this burden, ‘‘the McDonnell
Douglas framework – with its presumptions and burdens –
disappear[s], and the sole remaining issue [i]s discrimination
vel non.’’ Reeves, 530 U.S. at 142-43 (internal quotation
marks and citations omitted). The plaintiff at this point must
be given an opportunity to prove that the employer’s pro-
fessed reason for its actions is, in fact, a pretext for discrimi-
nation. If the factfinder rejects the defendant’s proffered
explanation, this permits – but does not compel – the factfin-
der ‘‘to infer the ultimate fact of intentional discrimination.’’
St. Mary’s Honor Ctr., 509 U.S. at 511.
The ultimate question, once the employer has met its
evidentiary burden, is whether intentional discrimination may
be inferred from all the evidence before the trier of fact.
This includes ‘‘(1) the plaintiff’s prima facie case; (2) any
evidence the plaintiff presents to attack the employer’s prof-
fered explanations for its actions; and (3) any further evi-
dence of discrimination that may be available to the plaintiff
(such as independent evidence of discriminatory statements
or attitudes on the part of the employer).’’ Dunaway v. Int’l
Bhd. of Teamsters, 310 F.3d 758, 763 (D.C. Cir. 2002) (quoting
Waterhouse v. Dist. of Columbia, 298 F.3d 989, 993 (D.C. Cir.
2002)). However, if the plaintiff establishes the elements of a
prima facie case, and the defendant remains silent or other-
wise fails to meet its burden of production, judgment must be
 13

rendered for the plaintiff. Burdine, 450 U.S. at 254; see also
St. Mary’s Honor Ctr., 509 U.S. at 510 n.3.
2. Application of the Legal Framework to the Facts of
this Case
Teneyck expressly conceded below that she had not estab-
lished a prima facie case of national-origin discrimination, so
that claim is not before this court on appeal. What is at issue
here is whether Teneyck met her initial burden of establish-
ing a prima facie case of race discrimination under Title VII.
Because Omni moved for judgment as a matter of law at the
close of Teneyck’s case-in-chief – before Omni presented any
evidence of its own – we are not confronted with the ultimate
question of whether Omni intentionally discriminated against
Teneyck. The precise question before us, in reviewing the
District Court’s grant of judgment as a matter of law, is
whether Teneyck provided a ‘‘legally sufficient evidentiary
basis for a reasonable jury to find’’ that she had established
the elements of a prima facie case. See FED. R. CIV. P. 50(a).
We find that she did not.
It is undisputed that Teneyck offered testimony on the
basis of which a reasonable jury could find the first three
elements of the McDonnell Douglas prima facie case. She is
a member of a protected class: While she did not testify as to
her race, the District Court noted, and Omni concedes, that
the jury could see that she is Black. Tr. II at 13; Appellee’s
Br. at 9 & n.3. As Omni likewise concedes, Teneyck testified
that she applied for a housekeeping position for which she
was qualified and that she was turned away before being
given any work. Tr. I at 109-13; Appellee’s Br. at 13.
Teneyck failed, however, to provide any evidence establish-
ing the fourth McDonnell Douglas element: that the position
remained open after Teneyck was turned away and that Omni
continued to seek applicants of her qualifications. Teneyck
testified that, after the Executive Housekeeper refused to
speak to her when Teneyck called to be assigned work,
Teneyck never made any further attempt to contact Omni
about the position. Tr. I at 126-27. Teneyck offered no
testimony as to whether the position remained open or wheth-
 14

er Omni continued to seek applicants of her qualifications.
She stated only that she never found out who Omni hired for
the position. Id. at 120. By not offering any evidence in
support of the fourth McDonnell Douglas element, Teneyck
failed to eliminate one of the most common legitimate nondis-
criminatory reasons for a failure to hire: the absence of a
vacancy. See Stella, 284 F.3d at 145.
In arguing the Rule 50(a) motion before the District Court,
counsel for Omni clearly identified this specific deficiency as
one of the grounds upon which judgment as a matter of law
for Omni was warranted. Tr. II at 16-17. Teneyck’s counsel
made no attempt to move to reopen Teneyck’s case-in-chief so
as to provide evidence on this or any other issue. According-
ly, Omni was entitled to judgment as a matter of law based on
the evidence put forward in Teneyck’s case-in-chief.
Having reached this conclusion, we note that the District
Court did not appear to base its judgment on the absence of
evidence establishing the fourth McDonnell Douglas element.
Indeed, the District Court’s treatment of this issue is some-
what perplexing, so some clarification of the law is in order.
Without reference to the specific McDonnell Douglas ele-
ments, the District Court noted in dicta that ‘‘at most, Ten-
eyck’s testimony eliminated ‘the two most common legitimate
reasons on which an employer might rely to reject a job
applicant: an absolute or relative lack of qualifications or the
absence of a vacancy in the job sought.’ ’’ Teneyck, slip op. at
6 (quoting Int’l Bhd. of Teamsters, 431 U.S. at 358 n.44). The
District Court nevertheless concluded that Teneyck had of-
fered no evidence from which it could be inferred that she
was discriminated against because of her race. Id. at 7.
These statements, taken in conjunction, reveal a misconcep-
tion of the requisite elements of a prima facie case and of
Teneyck’s burden at this stage of the proceedings. If Ten-
eyck had shown that Omni kept the position open and contin-
ued to seek applicants of her qualifications, then it would be
proper to conclude that there was a continuing vacancy.
This, along with the undisputed evidence as to the first three
McDonnell Douglas elements, would have sufficed to estab-
 15

lish a prima facie case, triggering a legally mandatory, rebut-
table presumption of discrimination.
Establishment of the elements of a prima facie case ‘‘raises
an inference of discrimination TTT because we presume [the
employer’s] acts, if otherwise unexplained, are more likely
than not based on the consideration of impermissible factors.’’
Burdine, 450 U.S. at 254 (quoting Furnco Constr. Corp., 438
U.S. at 577) (emphasis added). The issue of whether the
plaintiff has established a prima facie case, therefore, is quite
distinct from the ultimate inquiry as to ‘‘discrimination vel
non’’ required after the defendant has met its burden of
production. Here, Omni moved for judgment as a matter of
law at the close of Teneyck’s case-in-chief, prior to offering
any evidence of its own. At this stage, the factfinder is not
called upon to determine whether, despite the plaintiff’s suc-
cessful establishment of the McDonnell Douglas elements of
a prima facie case, discrimination can be inferred. Rather,
establishment of the requisite elements – in the absence of
any rebuttal evidence from the employer – creates an infer-
ence of discrimination as a matter of law.
The District Court’s opinion goes on to suggest ways in
which Teneyck might have successfully established a prima
facie case:
Teneyck might have presented evidence, for exam-
ple, to show that defendant hired a person who is
not black TTT to fill the housekeeper position. She
might have presented evidence to show the racial
composition TTT of defendant’s employees. She
could have called defendant’s employees as wit-
nesses in her case-in-chief and set up the conflict [as
to the defendant’s professed legitimate nondiscrimi-
natory reason for its actions]. She could have
sought other evidence of discriminatory statements
or improper attitudes of defendant’s employees or
officials.
Teneyck, slip op. at 9. This statement is not based on an
accurate assessment of the law. The evidence cited by the
District Court might in some cases be relevant to the estab-
 16

lishment of a prima facie case, and it certainly could bear on
the ultimate inquiry as to discrimination vel non. But we
reject any implication that such evidence is required to estab-
lish a prima facie case. Establishment of the four McDonnell
Douglas elements without more is sufficient. In particular,
the suggestion that, in order to make out her prima facie
case, Teneyck ought to have provided evidence that Omni
hired someone of a different race for the position for which
she applied is wrong as a matter of law. Stella clearly held
that a Title VII plaintiff is not required to show that she was
rejected in favor of someone outside her protected class. 284
F.3d at 145.
As noted above, although the foregoing aspects of the
District Court’s treatment of Teneyck’s race discrimination
claim are problematic, our de novo review of the record
makes clear that Teneyck offered no evidence indicating that
the position for which she applied remained open or that
Omni continued to seek applicants of her qualifications.
Therefore, we conclude that Omni is correct in its view that a
motion for judgment as a matter of law was proper in light of
Teneyck’s failure to make out a prima facie case.
3. The Timing of the District Court’s Disposition of the
Rule 50(a) Motion
There remains a procedural question as to the District
Court’s handling of the Rule 50(a) motion. Omni made its
motion at the close of Teneyck’s case-in-chief on the afternoon
of the first day of the trial. The court ‘‘reserved’’ ruling on
the motion until the morning of the following day, allowing
Omni to put its key witness – former Executive Housekeeper
Freiweini Kahasay – on the stand first. This arrangement
was intended to permit Kahasay to return to Boston on the
evening of the first day of trial in order to be at work the
next day. When the District Court ruled on the Rule 50(a)
motion the following morning, the court refused to consider
Kahasay’s testimony.
Under normal circumstances,
 17

Rule 50(a) does not authorize a trial judge, after the
defense has presented its case (in whole or in part),
to revisit, and grant, a defense motion for judgment
as a matter of law made at the close of the plaintiff’s
case without considering, in addition to the evidence
presented in the plaintiff’s case, the evidence pre-
sented by the defense.
Johnson Enters. of Jacksonville, Inc. v. FPL Group, Inc., 162
F.3d 1290, 1305 n.31 (11th Cir. 1998). Moreover, as a general
rule the court looks to ‘‘all of the evidence in the record’’
when deciding a Rule 50(a) motion. See Reeves, 530 U.S. at
150. This rule assumes particular importance in the context
of the McDonnell Douglas burden-shifting framework. The
Supreme Court held in Aikens that ‘‘[w]here the defendant
has done everything that would be required of him if the
plaintiff had made out a prima facie case, whether the plain-
tiff really did so is no longer relevant. The district court has
before it all the evidence it needs to decide whether ‘the
defendant intentionally discriminated against the plaintiff.’ ’’
460 U.S. at 715 (quoting Burdine, 450 U.S. at 253). In other
words, once the defendant has responded with rebuttal evi-
dence, the factfinder normally proceeds to the ultimate issue
on the merits to determine whether the employer intentional-
ly discriminated against the plaintiff.
Unlike Aikens, this case was not ‘‘fully tried on the merits.’’
See id. at 714. However, Omni’s rebuttal evidence was part
of the record when the court granted the Rule 50(a) motion.
And Omni’s evidence established that it continued to seek
applicants of Teneyck’s qualifications and ultimately hired
someone else for the position, thus indicating that the fourth
and final element of a prima facie case under McDonnell
Douglas was not really at issue. Yet, the District Court’s
reservation of its ruling on the motion required it to decide
the motion based solely on the plaintiff’s testimony.
We are now in the curious position of granting judgment to
Omni based on a deficiency in Teneyck’s case-in-chief that is
directly addressed elsewhere in the record. This is not to say
that Teneyck did not bear the burden of establishing her
 18

prima facie case. Nor is it to suggest that Teneyck is likely
to have won her case had she met this burden. Regardless,
we think the District Court’s decision to admit Kahasay’s
testimony to the record while simultaneously excluding it
from consideration created a situation that normally should
be avoided.
We cannot fault the District Court in this case, however.
The circumstances here were unusual: The District Court
reserved its ruling to accommodate a logistical difficulty and
did so only for one witness. Furthermore, Teneyck failed to
challenge the court’s handling of the Rule 50(a) motion either
before the District Court or on appeal. Teneyck offered no
objection to the District Court’s initial decision to ‘‘reserve’’
its ruling on the motion until after Kahasay’s testimony, or to
the court’s later reaffirmation of its decision to rule on the
motion based solely on the evidence in Teneyck’s case-in-
chief. On appeal, Teneyck has not raised any claim related to
the procedure.
C. ADEA Claim
In language closely tracking that of Title VII, the ADEA
makes it unlawful for an employer ‘‘to fail or refuse to hire or
to discharge any individual [over 40 years of age] or other-
wise discriminate against any [such] individual with respect to
his compensation, terms, conditions, or privileges of employ-
ment, because of such individual’s age.’’ 29 U.S.C.
§§ 623(a)(1), 631(a). As with Title VII, in the absence of
direct evidence of discrimination, disparate-treatment claims
under the ADEA are analyzed under the McDonnell Douglas
burden-shifting framework. See, e.g., Hall v. Giant Food,
Inc., 175 F.3d 1074, 1077 (D.C. Cir. 1999).
To establish a prima facie case under the ADEA, for a
claim involving a failure to hire, the plaintiff must demon-
strate that (1) she is a member of the protected class (i.e.,
over 40 years of age); (2) she was qualified for the position
for which she applied; (3) she was not hired; and (4) she was
disadvantaged in favor of a younger person. Cuddy v. Car-
men, 694 F.2d 853, 857 (D.C. Cir. 1982); see also Forman v.
Small, 271 F.3d 285, 292 (D.C. Cir. 2001), cert. denied, 536
 19

U.S. 958 (2002); Hall, 175 F.3d at 1077; Paquin v. Fed. Nat’l
Mortgage Ass’n, 119 F.3d 23, 26 (D.C. Cir. 1997). We note
parenthetically that in O’Connor v. Consolidated Coin Cater-
ers Corp., 517 U.S. 308 (1996), the Supreme Court held that
an ADEA plaintiff need not demonstrate that she was disad-
vantaged in favor of a person outside the protected class, i.e.
younger than 40. Id. at 312. The Court observed that
evidence that the plaintiff was disadvantaged in favor of a
‘‘substantially younger’’ person – regardless of whether that
person was under 40 years of age – would be a basis from
which to infer age discrimination. Id. at 313.
It is undisputed that Teneyck was over 40 years of age at
the time she applied for the job and that she was rejected for
a position for which she was qualified. However, Teneyck
neglected to offer any evidence from which it could be
inferred that she was disadvantaged in favor of a younger
person, so she failed to make out one of the required ele-
ments of a prima facie case of age discrimination. According-
ly, Omni was entitled to judgment as a matter of law on this
claim as well.
D. Administration of Trial Proceedings
In addition to her challenge to the grant of Omni’s Rule
50(a) motion, Teneyck claims on appeal that she was denied
an ‘‘orderly, fair, and efficient’’ trial because of the trial
judge’s administration of the trial proceedings. The grava-
men of this claim is that the judge was preoccupied with a
number of ‘‘competing demands’’ on his time, and that he was
therefore ‘‘inclined to jettison or to inadvertently sabotage’’
the trial. Appellant’s Br. at 10. Teneyck identifies four
purported ‘‘competing demands’’: (1) the criminal trial over
which the judge was presiding and in which the jury was still
deliberating; (2) the judge’s daughter’s basketball game orig-
inally scheduled for the evening of the first day of trial (which
was ultimately canceled); (3) the judge’s upcoming medical
procedure; and (4) the need to get Omni’s first witness on the
stand on the first day of the trial. Id.
We find no merit in this claim. The only specific actions of
the District Court cited by Teneyck are the judge’s decision
 20

to take a brief recess to address the jury in the ongoing
criminal trial and his decision to allow Omni’s witness to take
the stand on the first day of trial without having given
Teneyck’s counsel notice until the morning of that day. Ten-
eyck failed to raise any objection to either of these decisions
at trial and accordingly they are not properly before us on
appeal. See, e.g., Martini v. Fed. Nat’l Mortgage Ass’n, 178
F.3d 1336, 1340 (D.C. Cir. 1999) (citing Hooks v. Wash.
Sheraton Corp., 578 F.2d 313, 316-17 (D.C. Cir. 1977)). In
any event, we see no indication that the District Court abused
its discretion to manage the trial proceedings. Nothing in
the record suggests that the proceedings were conducted in a
hurried or disorderly manner, that Teneyck had inadequate
time to present her case or to cross-examine Omni’s witness,
or that she was otherwise prejudiced by the conduct on which
her claim is based. Certainly nothing in the conduct Teneyck
identifies remotely approaches plain error.

III. CONCLUSION
For the reasons set forth above, we affirm the District
Court’s grant of judgment as a matter of law in favor of
Omni.