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CARNEY v. AMERICAN UNIV.

April 16, 1997

DARION M. CARNEY, Plaintiff,
v.
THE AMERICAN UNIVERSITY, Defendant.



The opinion of the court was delivered by: GREEN

 In this action, Plaintiff Darion M. Carney (Carney) alleges that she was not hired as American University's (AU) Dean of Students, that she was later terminated from her position as AU's Director of Student Services, and that she was denied severance benefits because of her race (defined by the plaintiff as "black African-American" Compl. P1). Presently pending is AU's motion for summary judgment as to both counts of plaintiff's complaint. For the reasons set forth below, defendant's motion is granted.

 I. Background

 The background presented here is found in the pleadings and is not controverted. Ms. Carney was employed by American University from 1981 until her position was eliminated in 1994. She began her tenure with AU as Associate Director of Admissions and became Acting Director of Admissions in 1983. In 1988, she assumed the newly-created position of Director of Student Services. In 1989, Carney was appointed Acting Dean of Students and continued in that capacity for over two years. In 1991, Carney applied for the permanent position of Dean of Students. AU considered her application but eventually selected a white male for the position. Thereafter, Carney returned to her position as Director of Student Services. In 1994, AU terminated Carney's position as Director of Student Services. According to Carney, her application for the position as Dean of Students played a causal role in AU terminating her position three years later.

 Broadly construed, Count I of Carney's complaint makes three claims of discrimination under 42 U.S.C. § 1981. First, she asserts that AU rejected her application for the Dean of Students position because she is African-American. Second, plaintiff believes that racial discrimination motivated AU to eliminate her position as Director of Student Services in May 1994. Finally, she contends that AU retaliated against her for asserting her civil rights by refusing to pay her three months severance pay in lieu of written notice of termination. Count II asserts similar causes of action under the District of Columbia Human Rights Act, D.C. Code §§ 1-2512; 1-2525..

 AU previously filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Def.'s Mot. to Dismiss. Assuming, as required, that plaintiff's allegations were true, the Court denied that motion, finding that plaintiff's allegations were "sufficient to constitute a prima facie case under the McDonnell Douglas framework." Carney v. American Univ., 1995 U.S. Dist. LEXIS 21640 at *10, Civ. No. 95-1054, Mem. Op. and Order at 8 (D.D.C. Nov. 22, 1995) (Mem. Order). Pursuant to Federal Rule of Civil Procedure 56(c), AU now moves for summary judgment as to each of Carney's claims.

 II. Discussion

 A. Summary Judgment Standard .

 Summary judgment may be granted when the record fails to demonstrate the existence of any genuine issue of material fact. FED. R. CIV. P. 56(c). "The inquiry performed is the threshold inquiry of determining whether there is a need for a trial--whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. At the same time, however, Rule 56 places a burden on the nonmoving party "to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The nonmovant cannot survive a motion for summary judgment by relying on "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); see Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849, 116 L. Ed. 2d 117, 112 S. Ct. 152 (1991). In addition, neither the nonmovant's conjecture and surmise nor mere "conclusory allegations of discrimination, without more" are sufficient to defeat a motion for summary judgment. Grigsby v. Reynolds Metals Co., 821 F.2d 590, 597 (11th Cir. 1987); see Yarnevic v. Brink's Inc., 102 F.3d 753, 757-58 (4th Cir. 1996) ("Mere conclusory allegations of motivation do not preclude summary judgment."). This is especially true where the nonmovant would bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 322-23.

 B. Race Discrimination Claim Under 42 U.S.C. § 1981.

 Section 1981 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 relationship." 42 U.S.C. § 1981(a) & (b). To make out a claim under § 1981, the plaintiff must show that the defendant intentionally or purposefully discriminated against her. General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391, 73 L. Ed. 2d 835, 102 S. Ct. 3141 (1982); Reynolds v. School Dist. No. 1, Denver, Colo. 69 F.3d 1523, 1532 (10th Cir. 1995). The plaintiff may establish a violation of § 1981 using the same three step framework of proof that is employed in Title VII cases. Barbour v. Merrill, 310 U.S. App. D.C. 419, 48 F.3d 1270, 1276 (D.C. Cir. 1995) affirming in relevant part Barbour v. Medlantic Management Corp. 1991 U.S. Dist. LEXIS 16751, 1991 WL 257980 (D.D.C. 1991); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Under this framework, the plaintiff has an initial burden to prove, by a preponderance of the evidence, a prima facie case of discrimination. Barbour, 48 F.3d at 1276. The elements of that prima facie case vary slightly depending upon the specific type of discriminatory action alleged. See McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 1997 WL 109241, *6 (7th Cir. 1997) (retaliation); Reynolds, 69 F.3d at 1534 (promotion); Barbour, 48 F.3d at 1276 (hiring).

 Once the plaintiff has met this burden and established a prima facie case, the employer may rebut the resulting inference of discrimination by producing evidence of legitimate, nondiscriminatory reasons for its action. Barbour, 48 F.3d at 1276. If the defendant meets this burden of production, the presumption of discrimination raised by the plaintiff's prima facie case drops from the case. Saint Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993); see Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). Therefore, to prevail, the plaintiff must then prove, by a preponderance of the evidence, that the defendant's proffered reasons were a pretext for unlawful discrimination. St. Mary's Honor Ctr., 509 U.S. at 515. In order to show that the defendant's proffered reasons were mere pretexts, the plaintiff must show "both that the reason was false, and that discrimination was the real reason." Id.

 Therefore, to survive a summary judgment motion, a plaintiff who has established a prima facie case must demonstrate a genuine issue of material fact with regard to the defendant's proffered reasons. In such a situation, the plaintiff's obligation is to identify sufficient admissible evidence from which a jury could find that defendant's proffered nondiscriminatory reasons were, in fact, a pretext for discrimination. Reynolds, 69 F.3d at 1533-36; see St. Mary's Honor Ctr., 509 U.S. at 515-16; Barbour, 48 F.3d at 1277. However, as is the case with all summary judgment analyses, the plaintiff's proof of pretext must go beyond metaphysical doubt and mere conclusory allegations. It is in this respect that Carney fails to meet her burdens.

 This Court has previously determined that Carney has alleged a prima facie case. Carney v. American Univ., 1995 U.S. Dist. LEXIS 21640, Civ. No. 95-1054, Mem. Op. and Order at 8 (D.D.C. Nov. 22, 1995) (Mem. Order) (denying AU's motion to dismiss). Therefore, upon AU's motion for summary judgment, the burden of production shifts to AU to provide nondiscriminatory reasons for the actions it took with respect to Ms. Carney. As detailed below, AU successfully bears this burden of production. Consequently, to survive the motion for summary judgment, Carney must present sufficient admissible evidence from which a jury could find that AU's reasons are pretextual. Instead, she rests on the strength of her prima facie case, and presents only conclusory allegations. See Celotex Corp., 477 U.S. at 324; Mitchell v. Baldrige, 245 U.S. App. D.C. 60, 759 F.2d 80, 87 (D.C. Cir. 1985) ("The relatively light prima facie requirements do not alter the plaintiff's burden of ultimately persuading the factfinder by a preponderance of the evidence that the 'defendant intentionally discriminated against the plaintiff.'") (quoting United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 75 L. Ed. 2d 403, 103 S. Ct. 1478 (1983). Accordingly, summary judgment is appropriate.

 1. Discriminatory Non-Selection for the Dean of Students Position.

 After several unsuccessful searches, American University began another formal search for a new Dean of Students in the fall of 1991. Def.'s Mot. Ex. 1 (Deposition of Darion M. Carney) ("Def.'s Mot. Carney Dep.") at 45-48. Maurice O'Connell, Vice Provost of Student Life and Carney's supervisor, chaired the search committee and asked Carney to suggest staff members and students to participate on the committee. Id. at 48-49. At least two students and two faculty members proposed by Carney were included on the search committee. Id. at 49-51. The members of the 1991 search committee included six Caucasian females, one African-American female, two Caucasian males, two African-American males, one Hispanic female, and one Oriental male. Def.'s Mem. at 7-8.

 One hundred sixty four people applied for the position of Dean of Students. Def.'s Mot. Ex. 2 Dep. Ex. 1 (Confidential Report on Dean of Students Search Process Fall 1991) (hereinafter "Search Process Report") at 4. After considering all of the applicants, the search committee narrowed the pool to the top 17 candidates; Ms. Carney was one of those 17. Id. at 7. Eleven of these candidates, including Ms. Carney, were interviewed by the committee. Id. at 9. The committee then met and narrowed the pool to four finalists and two back-up candidates; Ms. Carney's application did not survive this cut. Id. at 13. After a further round of ...


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