United States Court of Appeals
`
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`Argued February 3, 2006
`
`Decided March 17, 2006
`
`No. 04-5426
`
`DOROTHY CHAPPELL-JOHNSON,
`APPELLANT
`
`v.
`
`DONALD E. POWELL, CHAIRMAN, FEDERAL DEPOSIT
`INSURANCE CORPORATION,
`APPELLEE
`
`Appeal from the United States District Court
`for the District of Columbia
`(No. 03cv01557)
`
`David H. Shapiro argued the cause for appellant. With him
`on the briefs was Richard L. Swick.
`
`Alan Burch, Assistant U.S. Attorney, argued the cause for
`appellee. With him on the brief were Kenneth L. Wainstein,
`U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney.
`Jaclyn C. Taner, Counsel, Federal Deposit Insurance
`Corporation, and R. Craig Lawrence, Assistant U.S. Attorney,
`entered appearances.
`
`Before: SENTELLE, HENDERSON, and TATEL, Circuit
`Judges.
`
`
`
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`Argued February 3, 2006
`
`Decided March 17, 2006
`
`No. 04-5426
`
`DOROTHY CHAPPELL-JOHNSON,
`APPELLANT
`
`v.
`
`DONALD E. POWELL, CHAIRMAN, FEDERAL DEPOSIT
`INSURANCE CORPORATION,
`APPELLEE
`
`Appeal from the United States District Court
`for the District of Columbia
`(No. 03cv01557)
`
`David H. Shapiro argued the cause for appellant. With him
`on the briefs was Richard L. Swick.
`
`Alan Burch, Assistant U.S. Attorney, argued the cause for
`appellee. With him on the brief were Kenneth L. Wainstein,
`U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney.
`Jaclyn C. Taner, Counsel, Federal Deposit Insurance
`Corporation, and R. Craig Lawrence, Assistant U.S. Attorney,
`entered appearances.
`
`Before: SENTELLE, HENDERSON, and TATEL, Circuit
`Judges.
`
`
`
`2
`
`Opinion for the Court filed by Circuit Judge TATEL.
`
`TATEL, Circuit Judge: Appellant, an African American
`woman in her fifties, claims that her employer facilitated
`promotions for non-African American and younger employees,
`but not for her. Because the position to which appellant sought
`to be promoted was never filled, the district court, allowing
`appellant no opportunity for discovery, concluded that she had
`failed to meet her prima facie burden and granted summary
`judgment to the employer. But given the flexible nature of the
`prima facie burden, appellant may, depending upon what she
`uncovers during discovery, be able to prevail even if the
`employer never filled the position she sought. We therefore
`reverse and remand with instructions to permit appellant to
`conduct the discovery she seeks.
`
`I.
` Dorothy Chappell-Johnson, an African American woman
`who was fifty-four years old at the time of the events at issue
`here, works at the Federal Deposit Insurance Corporation
`(FDIC). Dissatisfied with her promotion opportunities, she filed
`a complaint in the U.S. District Court for the District of
`Columbia, alleging, among other things, that the FDIC
`discriminated against her on the basis of race in violation of
`Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-
`16(a), and age in violation of the Age Discrimination in
`Employment Act (ADEA), 29 U.S.C. § 633a(a).
`
`According to the complaint, Chappell-Johnson held a
`“grade CG-11” position until, following a reorganization, her
`grade was reduced to CG-9. She then became interested in a
`vacancy announcement for a CG-13 position in her unit, but as
`a CG-9 was ineligible to compete for it. Her complaint’s core
`factual allegation is as follows:
`
`
`
`3
`
`the past Ms. Chappell-Johnson’s
`in
`Although
`supervisor, Lois Cheney (a white female) . . . had
`reduced the grade of vacant positions to permit lower
`grade employees to compete for them—a practice
`which benefitted these younger, non-African American
`employees—Ms. Cheney and the FDIC management
`refused to lower the target grade of [this particular]
`CG-13 position . . . .
`
`Compl. ¶ 7. Accordingly, her complaint alleges,
`
`[b]y not allowing Ms. Chappell-Johnson to compete for
`the Personnel Management Specialist position in her
`field and in her own assigned unit at the FDIC, as had
`been done in the past for non-African American
`employees, defendant has discriminated against
`plaintiff on the basis of her race (black) in violation of
`Title VII.
`
`Id. ¶ 10. The complaint makes a similar allegation of age
`discrimination. Id. ¶ 13.
`
`Instead of answering the complaint, the FDIC moved to
`dismiss under Federal Rule of Civil Procedure 12(b)(6) or, in the
`alternative, for summary judgment pursuant to Rule 56(b). In
`particular,
`the FDIC argued
`that Chappell-Johnson’s
`discrimination claim “must fail for the simple reason that the
`position was never filled.” Def.’s Mem. in Supp. of Def.’s Mot.
`to Dismiss, or in the Alternative, for Summ. J. 5. In response,
`Chappell-Johnson moved for additional discovery under Federal
`Rule of Civil Procedure 56(f), which provides:
`
`Should it appear from the affidavits of a party opposing
`the [summary judgment] motion that the party cannot
`for reasons stated present by affidavit facts essential to
`
`
`
`4
`
`justify the party’s opposition, the court may refuse the
`application for judgment or may order a continuance to
`permit affidavits to be obtained or depositions to be
`taken or discovery to be had or may make such other
`order as is just.
`
`Fed. R. Civ. P. 56(f). In a declaration supporting Chappell-
`Johnson’s motion, her attorney represented to the district court
`that discovery would reveal, among other things, “[t]he process
`by which grade levels are determined for vacant positions,”
`Shapiro Decl. 2, and “[t]he reason(s) why [the] vacancy . . . was
`not filled,” id. at 4.
`
`The district court denied the FDIC’s motion to dismiss.
`Chappell-Johnson v. Powell, No. 03-1557, slip op. at 5 (D.D.C.
`Sept. 30, 2004). “In the employment discrimination context,”
`the court reasoned, “all a complaint need state is ‘I was turned
`down for a job because of my race.’” Id. (quoting Sparrow v.
`United Air Lines, Inc., 216 F.3d 1111, 1115 (D.C. Cir. 2000)).
`Because Chappell-Johnson made “essentially that statement in
`her race and age discrimination claims,” the court concluded that
`“it is clear that plaintiff has stated a claim for which relief can
`be granted under Title VII and the ADEA.” Id.
`
`The district court reached a different conclusion with
`respect to the FDIC’s motion for summary judgment.
`Acknowledging
`that Chappell-Johnson “argues
`that
`consideration of summary judgment is premature, given that no
`discovery has yet occurred,” the court nonetheless concluded
`that she had “pled herself out of court as to all her claims.” Id.
`at 7. In particular, the district court credited the FDIC’s
`argument that because Chappell-Johnson did not contest the
`FDIC’s assertion that the position she sought was never filled,
`her claim necessarily failed. “If the position was not filled by
`
`
`
`5
`
`someone younger or of a different race,” the court continued,
`“she has not suffered an actionable injury.” Id. at 8.
`
`Chappell-Johnson now appeals. We review the district
`court’s grant of summary judgment de novo. Salazar v. Wash.
`Metro. Area Transit Auth., 401 F.3d 504, 507 (D.C. Cir. 2005).
`Although we review the denial of a Rule 56(f) motion for abuse
`of discretion, Paquin v. Fed. Nat’l Mortgage Ass’n, 119 F.3d 23,
`28 (D.C. Cir. 1997), here Chappell-Johnson argues that the
`district court’s denial of her Rule 56(f) motion rested on an error
`of law. Thus, “[l]ittle turns . . . on whether we label review of
`this particular question abuse of discretion or de novo,” for “[a]
`district court by definition abuses its discretion when it makes
`an error of law.” Koon v. United States, 518 U.S. 81, 100
`(1996).
`
`II.
`In McDonnell Douglas Corp. v. Green, 411 U.S. 792
`(1973), the Supreme Court set out a burden-shifting approach to
`employment discrimination claims in cases where the plaintiff
`lacks direct evidence of discrimination. To proceed under
`McDonnell Douglas, the plaintiff “must carry the initial burden
`under the statute of establishing a prima facie case of racial
`discrimination.” Id. at 802. If the plaintiff meets this burden,
`“[t]he burden then must shift to the employer to articulate some
`legitimate, nondiscriminatory reason” for its action. Id. If the
`employer succeeds, then the plaintiff must “be afforded a fair
`opportunity to show that [the employer’s] stated reason . . . was
`in fact pretext” for unlawful discrimination. Id. at 804. The
`McDonnell Douglas framework applies to both Title VII and
`ADEA claims. Carter v. George Washington Univ., 387 F.3d
`872, 878 (D.C. Cir. 2004).
`
`
`
`6
`
`“[E]stablishing a prima facie case,” the McDonnell Douglas
`Court explained,
`
`may be done by showing (i) that [the plaintiff] belongs
`to a racial minority; (ii) that he applied and was
`qualified for a job for which the employer was seeking
`applicants; (iii) that, despite his qualifications, he was
`rejected; and (iv) that, after his rejection, the position
`remained open and the employer continued to seek
`applicants
`from persons of complainant’s
`qualifications.
`
`McDonnell Douglas, 411 U.S. at 802. In setting forth these
`requirements, however, the Supreme Court emphasized that
`“[t]he facts necessarily will vary in Title VII cases, and the
`specification above of the prima facie proof required . . . is not
`necessarily applicable in every respect to differing factual
`situations.” Id. n.13. In a similar vein, the Court has made clear
`that “[t]he burden of establishing a prima facie case of disparate
`treatment is not onerous,” Tex. Dep’t of Cmty. Affairs v.
`Burdine, 450 U.S. 248, 253 (1981), and that “the precise
`requirements of a prima facie case can vary depending on the
`context and were ‘never intended to be rigid, mechanized, or
`ritualistic,’” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512
`(2002) (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567,
`577 (1978)).
`
`Given the Supreme Court’s emphasis on flexibility, we have
`adopted a more general version of the prima facie case
`requirement: “the plaintiff must establish that (1) she is a
`member of a protected class; (2) she suffered an adverse
`employment action; and (3) the unfavorable action gives rise to
`an inference of discrimination.” Brown v. Brody, 199 F.3d 446,
`452 (D.C. Cir. 1999). To be sure, as the FDIC points out, we
`explained in Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139,
`
`
`
`7
`
`1150 (D.C. Cir. 2004), that in “typical failure-to-hire cases” we
`apply the original McDonnell Douglas formulation, requiring
`plaintiffs to show that the position remained open and that the
`employer continued to seek applicants from persons of
`complainant’s qualifications. It bears noting, however, that even
`in failure-to-hire cases we impose no requirement that the
`employer filled the sought-after position with a person outside
`the plaintiff’s protected class. Stella v. Mineta, 284 F.3d 135,
`145 (D.C. Cir. 2002).
`
`Here, Chappell-Johnson does not attempt to show that the
`position remained open and that the employer continued to seek
`applicants (the McDonnell Douglas formulation). Rather, she
`attempts to demonstrate that the FDIC denied her an opportunity
`for advancement that it gave to non-African American and
`younger employees, namely, the opportunity to compete for a
`vacant position with a grade for which she would otherwise be
`ineligible. This is a perfectly acceptable way to try to satisfy her
`prima facie burden, which, under Brown, she may do by
`producing any evidence that gives rise to an “inference of
`discrimination” (along with evidence sufficient to satisfy
`Brown’s other two elements, see infra pp. 8-9). Brown, 199
`F.3d at 452; cf. Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir.
`1999) (stating burden as requirement to show “that she and [a]
`similarly situated person were treated disparately”); Bundy v.
`Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981) (stating, in failure-
`to-promote case, that plaintiff meets burden if she shows “that
`other employees of similar qualifications who were not members
`of the protected group were indeed promoted at the time the
`plaintiff’s request for promotion was denied”).
`
`Moreover, holding Chappell-Johnson to a particular method
`of raising an “inference of discrimination” is especially
`inappropriate at this stage of the litigation. As the Supreme
`Court has explained, “[b]efore discovery has unearthed relevant
`
`
`
`8
`
`facts and evidence, it may be difficult to define the precise
`formulation of the required prima facie case in a particular
`case.” Swierkiewicz, 534 U.S. at 512; see also Americable Int’l,
`Inc. v. Dep’t of Navy, 129 F.3d 1271, 1274 (D.C. Cir. 1997)
`(“[S]ummary judgment ordinarily is proper only after the
`plaintiff has been given adequate time for discovery.” (internal
`quotation marks omitted)). Indeed, as the Court also pointed
`out, discovery may even uncover direct evidence of
`discrimination, thus entirely eliminating the need to prove a
`prima facie case. See Swierkiewicz, 534 U.S. at 511 (noting, in
`rejecting a requirement that plaintiffs include all elements of a
`prima facie case in their pleadings, that “if a plaintiff is able to
`produce direct evidence of discrimination, he may prevail
`without proving all the elements of a prima facie case”).
`
`In short, because Chappell-Johnson’s counsel’s declaration
`pointed to the types of evidence that might raise an inference of
`discrimination—evidence regarding the FDIC’s process for
`determining the qualifications for this vacancy as compared to
`the process for other vacancies, as well as evidence regarding
`why this vacancy was never filled—and because we may not
`impose a prima facie case requirement in a “rigid, mechanized,
`or ritualistic” way, id. at 512 (internal quotation marks omitted),
`Chappell-Johnson is entitled to the discovery she seeks.
`
`III.
`The FDIC raises two additional arguments. First, it objects
`to Chappell-Johnson’s attempt to compare herself to non-
`African American and younger employees for whom the agency
`lowered job qualifications, arguing that these other employees
`were not “similarly situated” to Chappell-Johnson either
`because they sought positions different from the one she sought
`or because they had different qualifications. Second, relying on
`the well-accepted principle that a Title VII plaintiff must show
`that she has suffered “materially adverse consequences affecting
`
`
`
`9
`
`the terms, conditions, or privileges of her employment or her
`future employment opportunities such that a reasonable trier of
`fact could conclude that [she] has suffered objectively tangible
`harm,” Brown, 199 F.3d at 457, the FDIC insists that its refusal
`to change the qualifications for the job Chappell-Johnson sought
`is not sufficiently adverse to be actionable. Because the FDIC
`raised neither argument in the district court, however, we will
`not consider them. See Flynn v. Comm’r, 269 F.3d 1064, 1068-
`69 (D.C. Cir. 2001) (“Generally, an argument not made in the
`lower tribunal is deemed forfeited and will not be entertained
`absent exceptional circumstances.” (internal quotation marks
`omitted)). Of course, if the FDIC properly raises these
`arguments on remand, the district court remains free to consider
`them.
`
`We reverse the district court’s grant of summary judgment
`and remand for further proceedings consistent with this opinion.
`
`So ordered.
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