could find that AU's proffered reasons were pretexts for discrimination.
In response to AU's proffered reasons, Carney repeatedly emphasizes the "strength of [her] admitted prima facie case," Pl.'s Mem. at 19, 22 ("Given the strength of plaintiff's prima facie case . . . it is altogether possible . . . that a jury could conclude that Ms. Carney was the victim of discrimination."). However, such arguments are irrelevant to her burden at this stage because the strength or weakness of her prima facie case has no bearing upon whether or not AU's proffered reasons were pretextual. Carney also again questions AU's business judgment.
As discussed supra, however, the material issue here is not the soundness of AU's business judgment, but only whether or not AU discriminated against Carney based on her race. See Combs, 106 F.3d at 1543; Reynolds, 69 F.3d at 1535. To survive summary judgment, Carney must present some evidence from which the finder of fact could conclude that AU's proffered reasons were a pretext for discrimination.
Carney also contends that AU's proffered reasons must be pretextual because, she asserts, Maurice O'Connell is not credible and he is the person who "targeted Ms. Carney for termination of employment in this budget-driven 'restructuring' of his Student Life department" and who "saw to it that it was plaintiff who was terminated." Pl.'s Mem. at 17. However, considering all evidence in the light most favorable to the plaintiff, the Court cannot find this conclusory allegation sufficient to carry plaintiff's burden. To support her case that O'Connell targeted her for termination, Carney stretches back to the 1992 Dean of Students search and claims that O'Connell did not want to her apply for the position and, once she did, was forever hostile to her. Pl.'s Mem. at 16. As evidence of this hostility, she argues that O'Connell lowered her performance appraisals and selected her, rather than anyone else in the Division of Student Life, for termination. Id. at 17. The fatal flaw in Carney's circular logic is the complete absence of any indication that any of O'Connell's actions were based on race.
O'Connell admits that he was "caught by surprise" when Carney submitted an application for the Dean of Students position. Def.'s Mot. O'Connell Dep. at 68. Her application was awkward for O'Connell because O'Connell, her direct supervisor, was chairman of the search committee, id. ; because Carney herself had participated in selecting some of her subordinates to be members of the committee, id. at 103-04; and because she listed O'Connell and other members of the search committee as her references, id. at 207-08. None of these concerns are racially based and Carney admits that her application "put [O'Connell] on the spot." Def.'s Mot. Carney Dep. at 58.
Had Carney indicated to O'Connell before the search began that she was interested in the position, he would have asked someone else to chair the search committee, Def.'s Mot. O'Connell Dep. at 207, and would have given her a high recommendation for the job.
In fact, had the 1991 search failed to find a new Dean of Students (as the previous two searches had), O'Connell was prepared to propose to student leaders that Carney be appointed Dean of Students.
However, once Carney's application had been rejected by the search committee (for nondiscriminatory reasons, see supra), appointing her to the position was no longer a viable alternative -- for obvious reasons having nothing to do with Carney's race.
Carney also cites her allegedly lowered performance evaluations as evidence of O'Connell's hostility. However the four performance evaluations in the record -- March 17, 1990; March 1991; October-November, 1991; and October 14, 1993
-- reveal fairly consistent rankings. Considered across all four evaluations, Carney performed consistently in the "Greater Than Required (4)" - "Meets Expectations (3)" range with a rare "Exceptional (5)" mark, and never any "Less Than Desired (2)" or "Inadequate (1)" ratings.
While the October 14, 1993, evaluation is less flattering than the October-November 1991 evaluation, it is quite similar to both the March 1990 and March 1991 ratings. The evidence of hostility in these evaluations is "thin to the point of virtual invisibility," Barbour, 48 F.3d at 1281 (Statement of Williams, J., concurring in denial of rehearing en banc); evidence that AU's budget crisis and restructuring were pretexts for racial discrimination is completely absent.
Because Carney has not pointed to any evidence from which a jury could find AU's budget crisis, downsizing, and consequent termination of her position to be pretexts for racial discrimination, summary judgment is appropriate. Carney's conclusory allegations that her supervisor was hostile or is lying, without some evidence that his actions were racially motivated, do not carry her burden.
C. Retaliation Claim Under § 1981.
This Court has previously determined that § 1981 applies to retaliation claims involving the exercise of contractual rights. Carney v. American Univ., 1995 U.S. Dist. LEXIS 21640, Civ. No. 95-1054, Mem. Op. and Order at 9 (D.D.C. Nov. 22, 1995) (Mem. Order). To demonstrate a prima facie claim of retaliation, the plaintiff must show:" '(1) that she engaged in a statutorily protected activity; (2) that the employer took an adverse personnel action; and (3) that a causal connection existed between the two.'" Mitchell, 759 F.2d at 86 quoting McKenna v. Weinberger, 234 U.S. App. D.C. 297, 729 F.2d 783, 790 (D.C. Cir. 1984); Cones v. Shalala, 945 F. Supp. 342, 350 (D.D.C. 1996). Plaintiff must offer evidence as to each necessary element of her claim. If, for example, she offers evidence as to only the first and second elements, but fails to offer evidence as to causation--the third element-- Celotex holds that no genuine issue of material fact exists. See Celotex Corp., 477 U.S. at 322-23. Further, to resist a motion for summary judgment on this claim, plaintiff must offer admissible evidence; evidence not admissible at trial cannot shield plaintiff from summary judgment. Lang v. Star Herald, 107 F.3d 1308, 1311 (8th Cir. 1997); Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988). Because Carney does not present evidence from which a reasonable jury could infer causation, summary judgment will be granted.
In early May 1994, Carney was told that her position was being eliminated and her employment with the University terminated. Def.'s Mot. Carney Dep. at 214. Her severance package included seven months severance pay.
In addition, Carney was offered outplacement services in exchange for a release of liability. Def.'s Mot. Kirk Dep. at 28-29, 33-34 (stating that signing a release was a condition precedent to obtaining the additional benefit of outplacement); id. at 64 (indicating that he signed such a release when his employment with AU was terminated). However, when presented with the written severance package and an attached release, Carney balked. Def.'s Mot. Carney Dep. at 229. According to her own deposition testimony, Carney merely said that she wouldn't sign the release because she "needed to think about it." Id. at 229. She admits that, at that point, she had not told AU that she was going to sue, id. at 227, and that AU had no knowledge that she was asserting a civil rights claim, id. at 227-28. Acting on the good faith belief that Carney would sign the release, AU began her outplacement services. However, in early June, Carney told AU that she "would no longer be negotiating on [her own] behalf for the severance package, but that [her] attorney would be." Id. at 230. Accordingly, her outplacement benefits ceased. Id. Again, Carney made no mention of discrimination at that time; she indicated only that an attorney would be negotiating a severance package for her.
On June 10, 1994, her attorney wrote to AU and, for the first time, raised a racial claim. Def.'s Mot. at 22; Def.'s Mot. Carney Dep. at 250. In later correspondence with AU, Carney's attorney claimed that she was entitled to additional severance pay (i.e., six months severance pay plus an additional three months pay in lieu of written notice of termination). See, e.g., Pl.'s Mem. Attach. 13 (Letter from David Shapiro to Steven Semler (March 6, 1995)).
Viewing the evidence in the light most favorable to Carney, she alleges that she engaged in statutorily protected activity (i.e., asserted her rights under § 1981) and that AU took adverse action towards her (i.e., refused to pay an additional three months severance benefit), but offers no evidence to demonstrate the required causal connection between these two elements. There are two insurmountable hurdles blocking plaintiff's attempt to assume causation. First, she provides no evidence indicating that AU knew that she was asserting her civil rights prior to June 10, 1994, the date plaintiff's counsel first contacted AU. Therefore, any action AU took prior to June 10, 1994, (i.e., determining that Carney would receive only seven months severance) cannot logically have been taken in retaliation for action that Carney did not take until that date. Second, plaintiff's papers admit that AU's action with regard to Carney's severance-payment-in-lieu-of-written-notice was, at most, an oversight -- "when nearing the end of her severance pay period in late 1994 . . ., defendant became conscious that it had both failed to give Ms. Carney three months notice and failed to provide her pay in lieu of such notice." Pl.'s Mem. at 25. Because Carney cannot point to specific facts indicating a causal relationship between the denial of severance benefits and her actions under section 1981 and District of Columbia law, summary judgment will be granted.
Plaintiff attempts to bolster her retaliation claim by citing settlement negotiation letters between plaintiff and defense counsel, see Pl.'s Mem. Attach. 12 (Letter from Steven R. Semler, Attorney for American University, to David H. Shapiro, Counsel for Carney (Dec. 12, 1994)) & Attach. 13 (Letter from David Shapiro to Steven Semler (March 6, 1995)), and offers these letters as evidence to resist defendant's motion for summary judgment. However, Federal Rule of Evidence 408 bars evidence of compromise negotiations from admission into evidence, see FED. R. EVID. 408. Therefore, these settlement negotiation letters would not be admissible at trial. Plaintiff cannot rely on settlement negotiations--inadmissible evidence--to establish causation, a necessary element of her case. Therefore, because plaintiff offers no evidence, admissible or otherwise, to support an inference of causation this claim must be dismissed.
D. District of Columbia Law Claims.
Plaintiff also asserts claims under the District of Columbia Human Rights Act (DCHRA), §§ 1-2512; 1-2525. Specifically, her complaint alleges that AU violated the DCHRA when it terminated her position as Director of Student Services and in its alleged retaliation against her for asserting her civil and human rights. Compl. PP 13-17, 20-21. The same legal standards govern both DCHRA claims and section 1981 suits. See Goss v. George Washington Univ., 942 F. Supp. 659, 661 n.3 (D.D.C. 1996) (citing Miller v. American Coalition of Citizens with Disabilities, 485 A.2d 186, 189 (D.C. 1984)). Because the same standard governs plaintiff's federal and District of Columbia claims, and for the reasons discussed in detail supra, the Court will dismiss Count II.
Accordingly, it is hereby
ORDERED that defendant's motion for summary judgment as to Counts I and II is granted and, in accordance with Fed. R. Civ. P. 58, judgment shall be entered in favor of defendant American University and against plaintiff Darion M. Carney, as reflected on the judgment page of this date.
IT IS SO ORDERED.
April 16, 1997
JOYCE HENS GREEN
United States District Judge
In accordance with the Memorandum Opinion and Order issued this date, judgment is hereby entered in favor of defendant American University and against plaintiff Darion M. Carney.
IT IS SO ORDERED.
April 16, 1997
JOYCE HENS GREEN
United States District Judge