Waterhouse v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 11, 2001 Decided August 13, 2002

No. 01-7018

Ellen Waterhouse,
Appellant

v.

District of Columbia and
Anthony A. Williams, Mayor of the District of Columbia,
Appellees

Appeal from the United States District Court
for the District of Columbia
(No. 99cv00241)

Theodore M. Cooperstein argued the cause and filed the
briefs for appellant.

Mary E. Pivec argued the cause for appellees. With her
on the brief was Robert R. Rigsby, Corporation Counsel.
Jessica A. Valltos entered an appearance.

 Before: Sentelle, Randolph, and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: Alleging that she was unlawfully
terminated because of her race, Ellen Waterhouse brought
suit against her former employer, the District of Columbia,
and her former supervisor, Mayor Anthony Williams. The
district court granted the defendants' motion for summary
judgment, holding that Waterhouse failed to offer evidence
upon which a reasonable jury could find that her termination
was the result of discrimination. We affirm.

I

In March 1997, Ellen Waterhouse, a white female, began
work as the Chief Financial Officer (CFO) for the District of
Columbia's Department of Administrative Services (DAS).
She was hired by Anthony Williams, who at the time was the
Chief Financial Officer for the District. She worked for him
and was directly supervised by several members of his senior
staff, including Norman Dong, Williams' Chief of Staff, Laura
Triggs, the Associate Chief Financial Officer, and Earl Cab-
bell, one of Williams' Deputy CFOs. Dong, Triggs, and
Cabbell all participated in Waterhouse's hiring.

DAS provides procurement and accounting services to the
agencies that make up the District of Columbia government.
As its CFO, Waterhouse was responsible for making pay-
ments to vendors who provide telecommunications, security,
custodial, and other services to those agencies, and for man-
aging the process through which the agencies reimburse DAS
for making those payments. It was also her duty to oversee
the preparation of year-end closing packages, which resolve
any discrepancies between the amount of money each agency
transferred to DAS during the preceding year and the
amount DAS actually paid for the services used by that
agency. In addition, she was charged with preparing the
DAS annual budget and with hiring, managing, and improving
the DAS financial team. As part of her job, Waterhouse was

expected to make regular reports to Dong and Triggs con-
cerning the status of these projects.

In late 1997, citing her failure to fulfill her job responsibili-
ties, Dong and Triggs recommended that Waterhouse be
fired. In January 1998, Williams terminated her employ-
ment. Shortly thereafter, Waterhouse filed a charge of dis-
crimination with the Equal Employment Opportunity Com-
mission. She received a right-to-sue letter, and subsequently
brought suit against the District and Mayor Williams (in his
official capacity) in the United States District Court for the
District of Columbia. In her complaint, Waterhouse alleged
that the defendants had terminated her on the basis of race in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
ss 2000e et seq.1

After conducting discovery, the defendants moved for sum-
mary judgment pursuant to Federal Rule of Civil Procedure
56, contending that Waterhouse was fired because of her
failure to fulfill her job responsibilities, and that there was no
evidence upon which a reasonable jury could find that race,
rather than her poor performance, was the cause of her
termination. As required by Local Civil Rule 7.1(h), the
defendants filed a "Statement of Facts" that they contended
were undisputed. That statement documented evidence re-
lated to Waterhouse's performance problems. In response,
Waterhouse filed a "Verified Statement of Material Facts"
that she contended were in dispute.2

__________
1 Waterhouse also charged violations of 42 U.S.C. s 1981(b),
which prohibits racial discrimination in "the making, performance,
modification, and termination of contracts, and the enjoyment of all
benefits, privileges, terms, and conditions of the contractual rela-
tionship." She does not mention s 1981(b) on appeal, and, in any
event, we analyze claims under both statutes using the same
framework. See Sparrow v. United Air Lines, Inc., 216 F.3d 1111,
1114 n.3 (D.C. Cir. 2000).

2 Rule 7.1(h) requires a party moving for summary judgment to
provide a statement identifying the undisputed facts that entitle it
to judgment as a matter of law, and directs the nonmoving party to

 The district court reviewed these submissions and found
that Waterhouse's statement, and the record material it ref-
erenced, failed to rebut "many of the facts set forth by defen-
dants concerning plaintiff's alleged failure to perform her
work satisfactorily." Waterhouse v. District of Columbia,
124 F. Supp. 2d 1, 4-5 (D.D.C. 2000). In accordance with
Rule 7.1(h),3 the court treated as admitted all facts not con-
troverted by the plaintiff, and based on those facts concluded
that Waterhouse could not establish that the reasons prof-
fered by the defendants were false. Id. at 5, 7-11. The
court then considered additional evidence that Waterhouse
contended demonstrated discrimination, including statements
allegedly made by Williams and Dong. It found that this
evidence did not create a genuine dispute as to the defen-
dants' motivation for firing her. Id. at 11-13. Consequently,
the court concluded that a reasonable jury could not find that
Waterhouse's termination was motivated by a discriminatory
animus, and therefore granted summary judgment for the de-
fendants. Id. at 13.4

__________
respond with a statement listing the facts "as to which it is
contended there exists a genuine issue necessary to be litigated."
D.D.C. Local Civ. Rule 7.1(h). The identical rule appears as Local
Civil Rule 56.1.

3 The rule states that "the court may assume that facts identified
by the moving party in its statement of material facts are admitted,
unless such a fact is controverted in the statement of genuine issues
filed in opposition to the motion." D.D.C. Local Civ. Rule 7.1(h).

4 Waterhouse's complaint also claimed that the defendants sub-
jected her to a racially hostile work environment, and that they
discriminated against her prior to her termination by giving her
"less time, resources and support" than similarly situated African-
American employees. Compl. p p 16, 22. The district court granted
summary judgment against Waterhouse on the hostile work envi-
ronment claim because she did not oppose the defendants' motion
with respect to that claim. 124 F. Supp. 2d at 3. It granted
judgment on the second claim because she "set forth no evidence
whatsoever that she received fewer resources than other non-white
agency-based CFOs," and "failed to identify any similarly situated
African-American CFO who was treated more favorably than she

 II

We review the district court's decision to grant summary
judgment de novo. Breen v. Department of Transp., 282
F.3d 839, 841 (D.C. Cir. 2002); Aka v. Washington Hosp.
Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998). In doing so, we
must view the evidence in the light most favorable to Water-
house and draw all reasonable inferences in her favor.
Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 152
(2000); Aka, 156 F.3d at 1288.

A district court may grant summary judgment only if
" 'there is no genuine issue as to any material fact and ... the
moving party is entitled to a judgment as a matter of law.' "
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)
(quoting Fed. R. Civ. P. 56(c)). A dispute about a material
fact "is 'genuine' ... if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party." Id. at
248. A moving party is "entitled to judgment as a matter of
law" against "a party who fails to make a showing sufficient
to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of
proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986).

Consistent with Local Civil Rule 7.1(h), in determining
whether to grant summary judgment the district court looked
only at the parties' statements and the record material they
referenced. See Jackson v. Finnegan, Henderson, Farabow,
Garrett & Dunner, 101 F.3d 145, 154 (D.C. Cir. 1996) (holding
that the district court may rely on statements submitted in
accordance with the local rule and "is under no obligation to
sift through the record ... in order to evaluate the merits of
[a] party's case"). We limit our review to those materials as
well, and, like the district court, we treat as admitted all facts
not controverted in Waterhouse's Verified Statement. See
SEC v. Banner Fund Int'l, 211 F.3d 602, 615 (D.C. Cir. 2000);

__________
was." Id. at 15. Waterhouse does not challenge the dismissal of
those claims on appeal. See Appellant's Br. at 1.

Jackson, 101 F.3d at 154; D.D.C. Local Civ. Rule 7.1(h).5

Title VII makes it "an unlawful employment practice for an
employer to ... discharge any individual ... because of such
individual's race [or] color." 42 U.S.C. s 2000e-2(a). The
Supreme Court's opinion in McDonnell Douglas provides the
familiar framework for analyzing Title VII claims that are
based principally on circumstantial evidence. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973); see
Reeves, 530 U.S. at 142. Although "intermediate evidentiary
burdens shift back and forth in this framework, 'the ultimate
burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all
times with the plaintiff.' " Id. at 143 (quoting Texas Dept. of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

Under the McDonnell Douglas framework, "the plaintiff
must [first] establish a prima facie case of discrimination."
Reeves, 530 U.S. at 142 (citing St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 506 (1993)). If the plaintiff establishes a
prima facie case, the burden of production shifts to the
defendant to " 'produc[e] evidence that the plaintiff was re-
jected ... for a legitimate, nondiscriminatory reason.' " Id.
(quoting Burdine, 450 U.S. at 254). If the defendant satisfies
that burden, "the McDonnell Douglas framework--with its
presumptions and burdens--disappear[s], and the sole re-
maining issue [i]s discrimination vel non." Id. at 142-43
(internal quotation marks and citations omitted).

At that point, to survive summary judgment the plaintiff
must show that a reasonable jury could conclude that she was
terminated for a discriminatory reason. See Aka, 156 F.3d at
1290. The question is:

__________
5 The district court noted that the format of Waterhouse's Veri-
fied Statement was deficient in a number of respects. 124 F. Supp.
2d at 4. Waterhouse's appellate counsel disputed this and contend-
ed that the statement "did not actually violate" Rule 7.1(h), Appel-
lant's Reply Br. at 9, although he conceded at oral argument that
the statement was not in "the ideal or exemplary format." While
we regard the district court's criticism of the statement as quite
well founded, the point is moot since the court disregarded the
statement's deficiencies and decided the summary judgment motion
as if the statement were valid.

whether the jury could infer discrimination from the
combination of (1) the plaintiff's prima facie case; (2) any
evidence the plaintiff presents to attack the employer's
proffered explanation for its actions; and (3) any further
evidence of discrimination that may be available to the
plaintiff (such as independent evidence of discriminatory
statements or attitudes on the part of the employer)....

Id. at 1289; see Reeves, 530 U.S. at 151. With respect to the
second category of evidence, "the plaintiff may attempt to
establish that he was the victim of intentional discrimination
'by showing that the employer's proffered explanation is
unworthy of credence.' " Reeves, 530 U.S at 143 (quoting
Burdine, 450 U.S. at 256). As the Supreme Court has
explained, "[p]roof that the defendant's explanation is unwor-
thy of credence is simply one form of circumstantial evidence
that is probative of intentional discrimination," because "in
appropriate circumstances, the trier of fact can reasonably
infer from the falsity of the explanation that the employer is
dissembling to cover up a discriminatory purpose." Id. at
147.

III

To establish her prima facie case, Waterhouse contended
that she performed her job at an acceptable level, that she
was discharged, and that a person of another race was hired
in her stead. See Waterhouse, 124 F. Supp. 2d at 5, 6-7.
Although the defendants disputed that she performed at an
acceptable level, the district court noted that inadequate
performance was also the defendants' explanation for termi-
nating Waterhouse. The court therefore announced that it
would "assume that a prima facie case is established and
proceed to analyze whether plaintiff has demonstrated that
defendants' proffered reason is a pretext for discrimination."
124 F. Supp. 2d at 7 (internal quotation marks and alteration
omitted).

The defendants do not challenge that approach on appeal.6
Nor does Waterhouse dispute the district court's finding that

__________
6 See Fischbach v. District of Columbia Dep't of Corr., 86 F.3d
1180, 1182 (D.C. Cir. 1996) ("proceed[ing] directly to the second

the defendants satisfied their burden of production by prof-
fering a legitimate reason for firing her, namely her poor job
performance. We therefore proceed directly to the final
question: did Waterhouse meet her "burden of showing that
a reasonable jury could conclude that [she] had suffered
discrimination"? Aka, 156 F.3d at 1290. As noted above, we
consider three possible sources of evidence that, in combina-
tion, Waterhouse might have relied upon to meet that burden:
(1) evidence she used to establish her prima facie case; (2)
evidence that the defendants' proffered explanation for her
termination was false; and (3) any additional evidence of
discriminatory motive. Id. at 1289; see Reeves, 530 U.S. at
151.

The prima facie case that Waterhouse presented to get to
the second step of the McDonnell Douglas analysis is particu-
larly weak support for a claim of intentional discrimination, as
it was based on little more than an allegation that the
defendants rebutted in the next step: that she had adequate-
ly performed her responsibilities as CFO. Accordingly, Wa-
terhouse does not dispute that her prima facie case adds little
to the pile of evidence that she must accumulate to survive
summary judgment.

Nor did Waterhouse offer "sufficient evidence for a reason-
able factfinder to reject the employer's nondiscriminatory
explanation for its decision." Reeves, 530 U.S. at 140. Ac-
cording to the defendants, Waterhouse was fired due to poor
job performance. The district court's thorough opinion dem-
onstrates that there was no genuine issue regarding Water-
house's failure to fulfill her basic job responsibilities, largely

__________
step under McDonnell Douglas" where the defendant conceded that
the plaintiff had "made out a prima facie case of discrimination");
see also Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1554
(D.C. Cir. 1997) (noting that "[w]here the defendant has done
everything that would be required of him if the plaintiff had
properly made out a prima facie case, whether the plaintiff really
did so is no longer relevant" (quoting U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 715 (1983))).

because she failed to "dispute many, if not most, of the facts
on which defendants rely to support their termination deci-
sion." 124 F. Supp. 2d at 7. We highlight only a few
examples.

One of the primary reasons the defendants cited for Water-
house's termination was her delay in submitting DAS' Fiscal
Year (FY) 1997 closing packages. They asserted that, as part
of the year-end closing process, Waterhouse was required to
provide audit and financial information on or before Novem-
ber 30, 1997, and that she failed to meet that deadline as well
as several interim deadlines. Defs.' Stmt.p p 22-24, 32. At
her deposition, Waterhouse admitted that she missed the
deadlines, Waterhouse Dep. Vol. II at 38-39, and she did not
dispute that her delay had an adverse impact on other
agencies, 124 F. Supp. 2d at 8 n.10 (citing Defs.' Stmt. p 22).
She also did not dispute that Chief of Staff Dong, Associate
CFO Triggs, and Deputy CFO Cabbell met with her on
several occasions to express dissatisfaction with her progress
in submitting the closing information. Id. (citing Defs.' Stmt.
p p 24, 32).7 Her only defense was that she was not solely
responsible for the delay, and that she should have received
greater support from outside contractors. Pl.'s Verif. Stmt.
at 16-17.

The defendants also cited Waterhouse's failure to meet
deadlines related to the budget formulation process. Specifi-
cally, their Statement of Facts charged that in late 1997, the
Deputy CFO of the Office of Budget and Planning reported
to Williams that Waterhouse was late in providing his office
with several reports necessary to prepare the FY 1999 budget

__________
7 Dong, Triggs, and Cabbell determined that it was necessary to
assign employees from other departments to assist Waterhouse.
Defs.' Stmt. p p 22-24. Waterhouse did not dispute that one of those
employees, Laura Braxton, reported that she found serious deficien-
cies in Waterhouse's management of the process, and that Water-
house's failure to submit timely and accurate FY 1997 closing
packages had forced other district agencies to reopen their books
and record budget deficiencies. 124 F. Supp. 2d at 8 n.10 (citing
Defs.' Stmt. WW 25, 31). Nor did she dispute that an outside
contractor echoed Braxton's complaints. Id.

for DAS. He also told Williams that she did not have the
financial expertise necessary to manage the budget process.
Defs.' Stmt. p 27; Williams Aff. p 18. As the district court
noted, Waterhouse did not contest these facts. 124 F. Supp.
2d at 11 n.15. Instead, she described an improved system
she said she implemented for providing budgetary informa-
tion to the agencies served by DAS. Pl.'s Verif. Stmt. at 13.

The defendants further charged that Waterhouse failed to
pay vendors on time. Defs.' Stmt. p p 14-15. Waterhouse did
not take issue with this charge. To the contrary, she ac-
knowledged during her deposition that she was late in making
payments and that vendors complained to her superiors.
Waterhouse Dep. Vol. I at 198-202. In response to this
charge, her Verified Statement merely asserted--without of-
fering any evidentiary support--that "most invoices" were not
paid very late, and that she "made substantial progress
toward improving her agency's timely payments to vendors."
Pl.'s Verif. Stmt. at 7. Waterhouse also contended that in
some cases she did not make payments because she believed
they were not authorized. However, she admitted that she
failed to make those payments even after she explained her
rationale to her superiors and they directed her to make
payment. Id.; Waterhouse Dep. Vol. I at 149-54.

Finally, the defendants complained, and Waterhouse con-
ceded, that she failed to submit monthly status reports re-
quired by Dong and Triggs. Defs.' Stmt. WW 17, 34; see
Waterhouse Dep. Vol. II at 30-31 (admitting that she failed
on several occasions to submit the reports). Waterhouse
contended that this failure was not important because she
kept her supervisors updated by other means. Pl.'s Verif.
Stmt. at 12.

Because Waterhouse did not contravene--and in fact ad-
mitted--many of the deficiencies the defendants cited con-
cerning her performance, she failed to establish that her
" 'employer's proffered explanation [was] unworthy of cre-
dence.' " Reeves, 530 U.S. at 143 (quoting Burdine, 450 U.S.
at 256). At best, her responses constituted an argument that,
notwithstanding those failings, the District should not have
terminated her because there were extenuating circumstances

and there were some positive attributes to her performance.
But courts are without authority to " 'second-guess an em-
ployer's personnel decision absent demonstrably discriminato-
ry motive.' " Fischbach v. District of Columbia Dep't of
Corr., 86 F.3d 1180, 1182 (D.C. Cir. 1996) (quoting Milton v.
Weinberger, 696 F.2d 94, 100 (D.C. Cir. 1982)). And Water-
house's responses offered no grounds for a rational juror to
conclude that the reason she was fired was racial discrimina-
tion rather than poor performance. See Forman v. Small,
271 F.3d 285, 291 (D.C. Cir. 2001) ("Consistent with the
courts' reluctance to become involved in micromanagement of
everyday employment decisions, the question before the court
is limited to whether [plaintiff] produced sufficient evidence of
... discrimination, not whether he was treated fairly...."
(citations omitted)); Fischbach, 86 F.3d at 1183 (noting that
to rebut the employer's nondiscriminatory explanation " '[i]t
is not enough for the plaintiff to show that a reason given for
a job action is not just, or fair, or sensible' " (quoting Pignato
v. American Trans Air, Inc., 14 F.3d 342, 349 (7th Cir.
1994))).8

In a further attempt to undermine the defendants' explana-
tion for her termination, Waterhouse identified six "black
managers" who she alleged were not terminated despite
performance problems. Pl.'s Verif. Stmt. at 19-20. She did
not allege, however, that even one had problems of the same
magnitude cited by defendants in explaining their decision to
fire her. Indeed, as the district court found, Waterhouse's
Verified Statement "provide[d] no evidence that these individ-
uals ... had individual performance problems [or] had perfor-
mance problems similar to hers." 124 F. Supp. 2d at 14. In
the absence of evidence that the comparators were actually

__________
8 Had Waterhouse been able to demonstrate, as she claimed in
her complaint, that the reason she failed was that she was intention-
ally given "less time, resources and support" than similarly situated
African-American employees, Compl. WW 16, 22, her responses would
have been considerably more probative. As noted above, however,
the district court granted summary judgment on that claim because
Waterhouse proffered "no evidence whatsoever" to support it, 124
F. Supp. 2d at 15, and she has not challenged that decision on
appeal. See supra note 4.

similarly situated to her, this allegation added nothing to
Waterhouse's claim that the defendants' explanation for her
termination was mere pretext. See McGill v. Munoz, 203
F.3d 843, 848 (D.C. Cir. 2000) (holding that the plaintiff
provided no evidence of pretext where she "offered no evi-
dence that employees with similarly suspicious patterns of
absenteeism were treated any differently than she was");
Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507,
1514 (D.C. Cir. 1995) (finding that the terminated employee
failed to show that the retained employee had similar difficul-
ty in getting along with others in the firm).

Having concluded that neither her prima facie case nor her
evidence of pretext--either separately or in combination--
was sufficient to permit her case to go to a jury, we turn
finally to the additional evidence of discriminatory intent
proffered by Waterhouse. For this, she relied primarily on
two statements by her superiors, one by Anthony Williams
and one by Norman Dong.

With respect to Mayor Williams, Waterhouse cited a Wash-
ington Post article that quoted him as saying: "One of the
legacies I want to leave is that one of the finest run cities in
the country was run by an African-American team and that is
an important message." Pl.'s Verif. Stmt. at 20, Exh. P. As
the district court pointed out, however, this statement was
made in the context of a general discussion of Williams'
commitment to challenging stereotypes with respect to his
mayoral staff. It was not made when he was District CFO;
rather, it was made more than a year after he became Mayor
and more than two years after Waterhouse was terminated.
124 F. Supp. 2d at 11-12.9

__________
9 Waterhouse further contends that Williams was quoted as de-
crying that "it was too white at the top in the beginning." Appel-
lant's Br. at 25. Her citation, however, is to the same Washington
Post article, which attributes the quote not to Williams but to an
anonymous "former staffer who is white," and suggests that it
refers to the beginning of Williams' mayoral administration rather
than of his service as District CFO. Pl.'s Verif. Stmt., Exh. P.

 Waterhouse also pointed to a statement that Dong alleged-
ly made during a discussion of office hiring with Antonio
Acevedo, who was Human Resources Director for the Office
of the Chief Financial Officer. According to Acevedo, Dong
said that the District "had too many white managers al-
ready." Pl.'s Verif. Stmt. at 18 (citing Acevedo Dep.). The
statement was made midway through Waterhouse's tenure,
and its probative value was seriously undercut by the undis-
puted fact that Dong approved the decision to hire Water-
house earlier that same year. Dong Aff. p 5. See Grady v.
Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997) (affirm-
ing summary judgment and noting that "when the person
who made the decision to fire was the same person who made
the decision to hire, it is difficult to impute to her an invidious
motivation that would be inconsistent with the decision to
hire," especially "when the firing has occurred only a short
time after the hiring"); Burhmaster v. Overnite Transp. Co.,
61 F.3d 461, 464 (6th Cir. 1995) ("An individual who is willing
to hire and promote a person of a certain class is unlikely to
fire them simply because they are a member of that class.").10
Moreover, Dong was not the only one to complain of Water-
house's deficiencies or to recommend her termination.

In short, in light of the circumstances in which they were
made, the statements of Williams and Dong did not add
enough to Waterhouse's proffered evidence to satisfy her
"burden of showing that a reasonable jury could conclude"
that she was terminated on account of her race. Aka, 156
F.3d at 1290.

IV

For the foregoing reasons, we find that the defendants
were entitled to judgment as a matter of law. The district
court's grant of summary judgment in their favor is therefore

Affirmed.

__________
10 See also Williams v. Vitro Servs. Corp., 144 F.3d 1438, 1442
(11th Cir. 1998); Bradley v. Harcourt, Brace & Co., 104 F.3d 267,
270-71 (9th Cir. 1996); Brown v. CSC Logic, Inc., 82 F.3d 651, 658
(5th Cir. 1996); Evans v. Technologies Applications & Serv. Co., 80
F.3d 954, 959 (4th Cir. 1996); EEOC v. Our Lady of the Resurrec-
tion Med. Ctr., 77 F.3d 145, 152 (7th Cir. 1996).