Appeal from the Superior Court of the District of Columbia (CA2678-01) (Hon. Joan Zeldon, Motions Judge) (Hon. Herbert B. Dixon, Jr., Trial Judge).
The opinion of the court was delivered by: Fisher, Associate Judge
Before RUIZ and FISHER, Associate Judges, and TERRY, Senior Judge. *fn1
Appellant John T. McFarland was passed over for a promotion and eventually terminated by his former employer, The George Washington University ("GW"). He later alleged that GW had engaged in race discrimination, gender discrimination, and retaliation in violation of the District of Columbia Human Rights Act ("DCHRA"),D.C. Code §§ 2-1401.01 et seq. (2001). Superior Court Judge Joan Zeldon granted summary judgment to GW on Mr. McFarland's race discrimination and gender discrimination claims,but the claim of retaliation proceeded to trial before a jury with Judge Herbert B. Dixon, Jr., presiding. After three days of trial, at the close of Mr. McFarland's case, Judge Dixon granted GW's motion for judgment as a matter of law. We affirm.
I. The Factual and Procedural Background
A. Mr. McFarland's Grievance
In February 1990, GW hired Mr. McFarland, an African-American man, to work in its University Accounting Services department. On August 14, 1997, he filed an informal grievance with GW's Equal Employment Activities Office ("EEA"), alleging that his male supervisor had harassed him, discriminated against him on the basis of sex, and retaliated against him for having previously written a letter of complaint regarding the supervisor. In late September 1997, Mr. McFarland sent a memorandum to the university's Vice President and Treasurer, Lou Katz, defending his job performance and complaining about his supervisor. While his EEA complaint was pending, Mr. McFarland applied for a position in GW's Continuing Engineering Education Program ("CEEP"), a department within the Academic Development and Continuing Education division ("ADCE"). He was hired as CEEP's Marketing Manager on September 29, 1997.
On October 15, 1997, the EEA informed Mr. McFarland that it found insufficient evidence to support his claims of discrimination and retaliation. He filed a request for a formal grievance hearing on October 28, 1997, but on November 4, 1997, the EEA denied his request.*fn2
B. The Hiring of Mattie Hunter
In August 1998, following the retirement of CEEP's director, the Associate Vice President for ADCE, Roger Whitaker, selected Mattie Hunter, an African-American woman, to be CEEP's acting director. He also appointed a search committee, consisting of five white men and two women (one white and one African-American), to find a permanent director. According to Mr. McFarland, he submitted an application for the position to the Human Resources department in November 1998.After screening twenty-four applications, the committee selected four candidates for interviews -- two white men and two AfricanAmerican women. At the end of the process, the committee reached full consensus that Ms. Hunter should be the new CEEP Director. On November 17, 1998, Mr. McFarland learned that the committee had selected Ms. Hunter.
C. Elimination of Mr. McFarland's Job
Before Ms. Hunter was appointed acting director, GW had begun a strategic planning process focusing on CEEP, which was losing class enrollment and money. Between July and December 1998, CEEP had to cancel eighty-three classes due to insufficient enrollment.On February 3, 1999, Ms. Hunter, now the permanent director of CEEP, formally proposed a two-phase "departmental reorganization." She worked with Deborah McDonald in Human Resources to finalize the proposal. The first phase involved eliminating three positions, including Mr. McFarland's job as Marketing Manager; creating two new positions;and changing the responsibilities of another job within CEEP.The second phase involved integrating CEEP into a new "centralized unit which would support all departments within the [ADCE]."*fn3 By "reducing or eliminating duplicate staff functions," GW hoped to reduce costs. Savings in salary expenses would be directed "into CEEP's advertising in an effort to reverse declining enrollment and sustain revenues over the long term." Human Resources and Dr. Whitaker (the Associate VP for ADCE) evaluated the proposal, and it received final approval sometime after April 7, 1999.
Ms. Hunter chose to eliminate the Marketing Manager position because CEEP had outsourced the direct marketing of its courses, and the contractor had assigned a marketing liaison to support those activities. Ms. Hunter testified that Mr. McFarland's remaining duties "were capable of being handled by others."
In the meantime, appellant McFarland had become suspicious of Ms. Hunter's qualifications and abilities. On April 14, 1999, after he received the job description for the director position and compared his qualifications with Ms. Hunter's, Mr. McFarland sent a letter to Human Resources, asking various questions about the tardy response to his request for the job description, Ms. Hunter's salary, and why he had not been interviewed for the position.
A few days before April 19, 1999, Ms. Hunter secured a letter from Human Resources terminating Mr. McFarland as part of the reorganization. Mr. McFarland was on leave on Thursday, April 15, and Friday, April 16, and Ms. Hunter gave the letter to him on Monday, April 19; his termination was effective immediately. On May 5, 1999, after Mr. McFarland had left GW, he received a response from Human Resources describing the process for selecting the CEEP Director and explaining that the selection committee did not recommend him for an interview "because [it] determined that your qualifications were not as strong as those of the other candidates."
D. The Office of Human Rights Complaint and the Superior Court Civil Action
Nearly one year later, on April 10, 2000, Mr. McFarland filed a complaint with the District of Columbia Office of Human Rights ("OHR"), alleging that he "was discriminated against because of my sexand subject to an unlawful retaliation . . . ." He did not allege discrimination based on race. Mr. McFarland represents that, on April 4, 2001, he requested that OHR administratively close its investigation. On April 5, 2001, he filed suit in the Superior Court, claiming that, in failing to promote him to the director position and eventually eliminating his position, GW (1) discriminated against him on the basis of race; (2) discriminated against him on the basis of gender; and (3) retaliated against him for complaining about discrimination. After discovery, GW moved for summary judgment. Judge Zeldon dismissed Mr. McFarland's race discrimination claim as untimely, concluding that the running of the one-year statute of limitations had not been tolled because Mr. McFarland did not allege race discrimination in his complaint to OHR. The court also ruled that Mr. McFarland had failed to make out a prima facie case of gender discrimination. Judge Zeldon denied GW's motion for summary judgment on the retaliation claims. After Mr. McFarland presented his evidence of retaliation at trial, Judge Dixon granted GW judgment as a matter of law.
II. Mr. McFarland's Claims of Racial Discrimination and Gender Discrimination
This court reviews "the grant of a motion for summary judgment de novo." Joyner v. Sibley Memorial Hospital, 826 A.2d 362, 368 (D.C. 2003). "[T]o be entitled to summary judgment, [GW] must demonstrate that there is no genuine issue of material fact and that [it is] entitled to judgment as a matter of law." Colbert v. Georgetown University, 641 A.2d 469, 472 (D.C. 1994) (en banc) (citing Super. Ct. Civ. R. 56 (c)). Although we view the evidence in the light most favorable to the party opposing the motion, "[c]onclusory allegations by the nonmoving party are insufficient to establish a genuine issue of material fact or to defeat the entry of summary judgment." Hollins v. Federal National Mortgage Association, 760 A.2d 563, 570 (D.C. 2000) (citation omitted).
The DCHRA prohibits an employer from discharging or failing to promote an employee based on race, sex, or other prohibited reasons. D.C. Code § 2-1402.11 (a)(1) (2001). "In considering claims of discrimination under the DCHRA, we employ the same three-part, burden-shifting test articulated by the Supreme Court for Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)." Hollins, 760 A.2d at 571; Atlantic Richfield Co. v. District of Columbia Commission on Human Rights, 515 A.2d 1095, 1099 (D.C. 1986).
In order to survive a motion for summary judgment, [the employee must] establish a prima facie case that [the employer discriminated against him]. If such a showing is made, the burden shifts to the employer to articulate a legitimate basis for [its action]. If the employer articulates a legitimate, nondiscriminatory basis for the [action], the burden shifts back to the employee to demonstrate that the employer's action was pretextual.
Blackman v. Visiting Nurses Association, 694 A.2d 865, 868 (D.C. 1997).It is the burden of production that shifts in this process. Id. "'[T]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Hollins, 760 A.2d at 571 (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993)) (additional internal quotation marks and citation omitted).
A. Mr. McFarland's Claim that GW Denied Him Promotion for Discriminatory Reasons
Appellant McFarland claims that GW discriminated against him when it promoted Mattie Hunter to the position of CEEP Director in November 1998. We hold that appellant failed to establish a prima facie case that he was denied the promotion because of his race or his gender. Because he did not surmount the first step in the McDonnell Douglas procedure, the trial court properly granted summary judgment to GW.
To establish a prima facie case of discriminatory failure to promote, the complainant must prove four elements: (1) that [he] was a member of a protected class; (2) that [he] applied for a job for which [he] was qualified; (3) that [he] was rejected in favor of another applicant; and (4) that a substantial factor in the employment decision was [his] membership in the protected class.
United Planning Organization v. District of Columbia Commission on Human Rights, 530 A.2d 674, 677 n.3 (D.C. 1987); accord, Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 & n.6 (1981); Arthur Young & Co. v. Sutherland, 631 A.2d 354, 361 (D.C. 1993). The prima facie showing requires circumstantial evidence raising an inference of purposeful discrimination. "[W]e infer discriminatory animus because experience has proved that in the absence of any other explanation it is more likely than not that th[e] actions [of the employer] were bottomed on impermissible considerations." Furnco Construction Corp. v. Waters, 438 U.S. 567, 580 (1978). We have recognized that "[c]courts are justifiably hesitant to throw out employment discrimination claims on summary judgment, since they almost always involve issues concerning the employer's (or supervisor's) motive or intent." Hollins, 760 A.2d 570-71. Nevertheless, if the plaintiff fails to establish a prima facie case, the inquiry stops and a grant of summary judgment is appropriate. See, e.g., Chang v. Institute for Public-Private Partnerships, Inc., 846 A.2d 318, 324 (D.C. 2004) (affirming grant of summary judgment because plaintiff failed to establish a prima facie case of discrimination); Blackman, 694 A.2d at 872 (same).
1. Claim of Discriminatory Failure to Promote on the Basis of Race*fn4
Mr. McFarland did not establish a prima facie case of racial discrimination. Most notably, he failed to establish the fourth prong of the prima facie test, that a substantial factor in the employment decision was his membership in the protected class. He offered no direct proof of racial animus, nor did his evidence raise an inference of discriminatory intent. Mattie Hunter, who received the promotion, is a member of the same protected class as Mr. McFarland. Because they are both African-American, Mr. McFarland has not shown that GW denied him the promotion because of his race. See McManus v. MCI Communications Corp., 748 A.2d 949, 955 (D.C. 2000) ("Because appellant . . . did not show that [the employer] replaced her with someone outside her protected class, she failed to establish a prima facie case of race discrimination."); cf. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993) (black plaintiff made out a prima facie case by showing, among other things, that after his demotion and discharge, the position was filled by a white person); Klein v. Derwinski, 869 F. Supp. 4, 7-8 (D.D.C. 1994) (explaining that in order to make out a prima facie case of discriminatory ...