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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 22, 2002 Decided February 14, 2003
No. 01-7155
JOSE BEN–KOTEL,
APPELLANT
v.
HOWARD UNIVERSITY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 00cv01968)
Kay Leslie Ackman argued the cause and filed the briefs
for appellant. Maxwell O. Chibundu entered an appearance.
Daniel I. Prywes argued the cause for appellee. On the
brief was Sheila Lowery Ferguson. Phillip A. Lattimore III
entered an appearance.
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.
2
Before: GINSBURG, Chief Judge, HENDERSON, Circuit Judge,
and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: Jose Ben–Kotel, a native of Chile,
claims that Howard University denied him employment be-
cause of his national origin, in violation of Title VII of the
Civil Rights Act of 1964 and of the D.C. Human Rights Act.
The district court, holding that Ben–Kotel had not made out a
prima facie case of discrimination, granted summary judg-
ment in favor of the University. On appeal Ben–Kotel argues
that the district court misconceived the law, improperly
weighed the evidence against him, and denied him due pro-
cess. Because Ben–Kotel did not raise the first argument
before the district court, it is forfeit. The other arguments
have no merit.
I. Background
Except as otherwise noted, we recount the facts in the light
most favorable to Ben–Kotel. Prior to the Fall 1999 semes-
ter Howard University advertised a part-time position for a
Spanish instructor, to which Ben–Kotel, a Chilean-born citi-
zen of the United States, responded. Ben–Kotel was at the
time a Ph.D. candidate in Spanish Literature at the Universi-
ty of Maryland; he had a master’s degree in Spanish and had
more than three years’ experience teaching Spanish to high
school and college students.
After Ben–Kotel telephoned Dr. Aleida Rodriguez, the
contact person for the advertised position and a professor at
Howard, he had a series of interviews with representatives of
the University. In addition to Rodriguez, Ben–Kotel spoke
with Dr. Amelia Mondragon, the Spanish language coordina-
tor; Dr. Alphonse Frost, chairman of the Department of
Modern Languages and Literatures; and Associate Dean
Paul Logan. The conversations with Rodriguez and Mondra-
gon were entirely in Spanish, those with Frost and Logan in
English. Rodriguez and Mondragon were pleased with Ben–
Kotel’s qualifications. Although Frost thought Ben–Kotel’s
command of English was ‘‘flawed,’’ he was nevertheless ‘‘quite
3
comfortable in envisioning him in the classroom teaching [the
University’s] students.’’
Dean Logan, whose approval was necessary for Ben–Kotel
to be hired, was not so comfortable. Logan claims that in
their telephone conversation Ben–Kotel had difficulty commu-
nicating in English. In particular, Ben–Kotel ‘‘had difficulty
expressing himself coherently in English and misunderstood
some of the questions which I asked.’’ Ben–Kotel states that
he and Logan ‘‘fully understood each other.’’
Following his conversation with Ben–Kotel, Logan in-
formed Frost of his misgivings about Ben–Kotel’s facility in
English. According to Logan, Frost shared this concern.
Logan therefore suggested that Frost ‘‘ask existing faculty to
teach [extra] courses on an overload basis,’’ and Frost agreed.
Frost then contacted Ben–Kotel and told him the University
would not be offering him a job. Frost told Ben–Kotel,
Mondragon, and Rodriguez that Ben–Kotel was denied the
position for reasons related to his accent. The University
solicited its existing faculty to teach the extra courses, and
some of them, including several instructors who, like Ben–
Kotel, are natives of primarily Spanish-speaking nations, did
so.
The parties dispute whether the University ever filled the
part-time position Ben–Kotel sought. Ben–Kotel claims the
position was eventually filled by Kadidia Thiere, an African–
American woman. As evidence, he points to Logan’s deposi-
tion testimony that the University hired Thiere to teach
Spanish ‘‘I think TTT in 1999.’’ The University asserts that
Thiere was hired in 1998 and did not fill the position adver-
tised in 1999; it points to payroll and other personnel records
and to three affidavits.
Upon complaining to and receiving a right-to-sue letter
from the Equal Employment Opportunity Commission, Ben–
Kotel brought an action in the district court alleging discrimi-
nation on the basis of his national origin, in violation of both
Title VII, 42 U.S.C. § 2000e et seq., and the D.C. Human
Rights Act, D.C. Code Ann. § 2–1401.01 et seq., as well as
intentional infliction of emotional distress. Following discov-
4
ery the district court granted the University’s motion for
summary judgment on all counts. Ben–Kotel v. Howard
Univ., 156 F. Supp. 2d 8 (2001). With regard to the Title VII
claim, the district court concluded Ben–Kotel had not made
out a prima facie case of discrimination because he failed to
show that ‘‘after [his] rejection, the position remained open
and the employer continued to seek applicants.’’ Ben–Kotel,
156 F. Supp. 2d at 13 (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973)).
The district court rejected Ben–Kotel’s argument that the
University must have continued to seek applicants for the
position he sought because it hired Thiere to teach Spanish in
1999 after it had refused to hire Ben–Kotel. Instead, the
district court found the University had hired Thiere in 1998;
Logan’s statement that he thought Thiere had been hired in
1999 was unpersuasive in the light of all the evidence indicat-
ing otherwise. 156 F. Supp. 2d at 14.
This court summarily affirmed the judgment for the Uni-
versity on the claim for emotional distress. Because the
standards applicable to Ben–Kotel’s claims under Title VII
and under the D.C. Human Rights Act are the same, the sole
issue now before the court is whether the district court erred
in granting summary judgment on the Title VII claim.
II. Analysis
Ben–Kotel first argues that the district court erred by
requiring him to make out a prima facie case of discrimina-
tion, as specified in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973). Referring to Frost’s statements that
the University did not hire him because of his accent, he
argues that because he ‘‘produce[d] direct evidence of dis-
crimination, he may prevail without proving all the elements
of a prima facie case.’’ Swierkiewicz v. Sorema N.A., 534
U.S. 506, 511 (2002). If he must make out a prima facie case,
Ben–Kotel maintains the district court formulated the re-
quirement too narrowly. The court should not have required
him to show that ‘‘after his rejection, the position remained
open and the employer continued to seek applicants,’’ McDon-
5
nell Douglas, 411 U.S. at 802, but instead should have permit-
ted him to show other circumstances that ‘‘give[ ] rise to an
inference of discrimination.’’ Brown v. Brody, 199 F.3d 446,
452 (D.C. Cir. 1999); see also Swierkiewicz, 534 U.S. at 510
(‘‘[T]he prima facie case relates to the employee’s burden of
presenting evidence that raises an inference of discrimina-
tion’’). Here the circumstance from which he would have us
infer discrimination is that, even if the position did not
technically remain open, the need for a qualified employee to
teach extra Spanish classes remained, as evidenced by the
University’s arranging for incumbent faculty members to
teach the classes. ‘‘There is simply no legal basis,’’ he says,
‘‘for holding that an employer[ ] who fills an advertised vacan-
cy with a hitherto non-employee[ ] might be liable for a Title
VII violation, but that one who fills the same position from
among preexisting employees would never be liable.’’
We have no occasion to decide whether any of Ben–Kotel’s
interesting propositions are correct because he did not raise
them first in the district court. District of Columbia v. Air
Florida, Inc., 750 F.2d 1077, 1084 (D.C. Cir. 1984). On the
contrary, Ben–Kotel clearly accepted the applicability of the
McDonnell Douglas framework and made his arguments
within that framework; he did not discuss the significance of
‘‘direct evidence’’ of discrimination at all. Nor did he argue
there, as he does here, that the use of existing faculty to
teach the classes filled the position in a legally relevant way.
See Pl.’s Opp. To Def.’s Mot. For Summ. J. at 13 (‘‘The part-
time position for a Spanish language instructor remained
open the course of the semester’’). Finally, Ben–Kotel did
not argue to the district court that, if it found the University
did not continue to look for someone outside the department
to fill the position, then it should have gone on to determine
whether the University’s actions gave rise to an inference of
discrimination in some other way. Although we can entertain
a newly-raised issue ‘‘where injustice might otherwise result,’’
Air Florida, 750 F.2d at 1085, Ben–Kotel has not proffered
any reason for our doing so in this case.
Next, Ben–Kotel argues the district court improperly
weighed the evidence in a manner unfavorable to him when it
6
found that Thiere was not hired in 1999. He points out,
correctly to be sure, that when there is conflicting evidence of
a disputed fact, summary judgment is ordinarily inappropri-
ate. See Alyeska Pipeline Serv. Co. v. United States Envtl.
Prot. Agency, 856 F.2d 309, 314 (D.C. Cir. 1988) (‘‘[I]f materi-
al facts are genuinely in issue TTT summary judgment is not
available’’). In this regard he posits that Logan’s testimony
suggesting that Thiere was hired in 1999 precludes summary
judgment. But that is too facile.
A party opposing a motion for summary judgment must
point to more than just ‘‘a scintilla of evidence’’ supporting his
position; ‘‘there must be evidence on which the jury could
reasonably find for the plaintiff.’’ Anderson v. Liberty Lob-
by, Inc., 477 U.S. 242, 252 (1986). ‘‘If the evidence is merely
colorable, or is not significantly probative, summary judgment
may be granted.’’ Id. at 249–50 (citations omitted). In this
case, Logan’s vague statement regarding when he inter-
viewed Thiere – ‘‘I think it took place in 1999’’ – would not
support a jury finding that the University hired Thiere in
1999; there is overwhelming documentary evidence – three
affidavits and two separate business records – indicating the
University hired Thiere on August 16, 1998. The district
court was entitled to conclude ‘‘that Dean Logan was simply
mistaken when he said he thought that he interviewed Ms.
Thiere in 1999.’’ Ben–Kotel, 156 F. Supp. 2d at 14.
Finally, Ben–Kotel claims the grant of summary judgment
deprived him of his right to due process of law under the
Fifth Amendment to the Constitution of the United States.
Ben–Kotel first learned of the affidavits and records concern-
ing the date of Thiere’s hire when the University replied to
his opposition to its motion for summary judgment; that was
the last pleading concerning the motion scheduled by the
district court. Ben–Kotel argues that therefore he had no
opportunity to rebut the University’s evidence; and given
such an opportunity, he would have pointed to evidence
suggesting that Ms. Thiere may have left the University after
August 16, 1998 and been re-hired for the Fall 1999 semester.
Read charitably, his brief also suggests the University’s
7
failure to make the records and affidavits available to him
earlier violated the rules of discovery.
Ben–Kotel’s arguments are unavailing because he did not
seek relief in the district court. As the University points out,
Ben–Kotel could have apprised the district court of his evi-
dence of Ms. Thiere’s possible re-employment by moving for
leave to file a sur-reply. The district court routinely grants
such motions when a party is ‘‘unable to contest matters
presented to the court for the first time’’ in the last scheduled
pleading. Lewis v. Rumsfeld, 154 F. Supp. 2d 56, 61 (D.D.C.
2001). Ben–Kotel’s claim that he was denied due process
must fail because he did not take advantage of the process
that was available to him. Similarly, to the extent Ben–Kotel
argues he was prejudiced by the University’s violation of the
rules of discovery, his failure to pursue a remedy in the
district court precludes our consideration of the issue. Air
Florida, 750 F.2d at 1084.
III. Conclusion
For the foregoing reasons the judgment of the district
court is
Affirmed.