UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


CARPENTER, JOANN

v.

FED NATL MTGE ASSN


98-7170a

D.C. Cir. 1999


*	*	*


Karen LeCraft Henderson, Circuit Judge: JoAnn Carpen- ter, employed at
the Federal National Mortgage Association  (Fannie Mae), appeals the
district court's grant of summary  judgment to Fannie Mae on her claim
that her supervisors  retaliated against her in violation of the
District of Columbia  Human Rights Act (DCHRA), D.C. Code ss 1-2501 et
seq.  Carpenter specifically alleges that they retaliated by down-
grading her performance rating and by rejecting her for a  senior vice
president position following her decision to appeal  the district
court's dismissal of her original discrimination  claim against Fannie
Mae. Carpenter now contends that she  presented sufficient evidence to
allow a reasonable jury to  conclude that Fannie Mae's proffered
reasons for her down- grading and nonselection were pretextual.
Alternatively,  Carpenter asserts that she should be allowed
discovery. We  affirm for the reasons set forth below.


I.


Since 1987, Carpenter has been a Vice President and  Deputy General
Counsel at Fannie Mae. In the summer of  1996, Fannie Mae decided to
promote a different vice presi- dent into a new supervisory position.
Carpenter claimed that  she was not considered for the position
despite her seniority.  On learning of the promotion, Carpenter met in
September  1996 with her supervisors, Anastasia Kelly and Anthony 
Marra, and complained of gender discrimination. According  to
Carpenter, Marra told her to "drop" her claim and Kelly  warned her to
"not cut off [her] nose to spite [her] face."  Carpenter v. Federal
Nat'l Mortgage Ass'n, No. 1:98CV00563,  at 9 (D.D.C. Apr. 20, 1998)
(Aff. of Pl. JoAnn Carpenter and  Rule 56(f) Aff.) [hereinafter 56(f)
Aff.], Joint Appendix (JA)  74.


On October 17, 1996 Carpenter filed an employment dis- crimination
lawsuit, alleging gender discrimination under  DCHRA due to Fannie
Mae's refusal to promote her and for 


certain retaliatory acts that occurred after she gave notice of  her
claim. Following contentious discovery that included  allegations of
untruthful statements by Kelly and Marra, the  district court granted
summary judgment to Fannie Mae, see  Carpenter v. Federal Nat'l
Mortgage Ass'n, No. 96-2399 at 28  (D.D.C. Oct. 28, 1997) (Carpenter
I), and we affirmed, see  Carpenter v. Federal Nat'l Mortgage Ass'n,
165 F.3d 69 (D.C.  Cir. 1999). Within two weeks after filing her
appeal, Carpen- ter learned that she had been given a performance
rating of  4+, a slight downgrade from the ratings of 5 and 5- that
she  received for the previous seven years. Soon after, Kelly 
rejected Carpenter for a senior vice president position that  had
opened up in the General Counsel's office.


On March 5, 1998 Carpenter filed a second lawsuit under  DCHRA, D.C.
Code s 1-2525(a),1 against Fannie Mae alleg- ing that it had
retaliated against her for pursuing Carpenter I  by downgrading her
performance rating and denying her a  promotion to senior vice
president. See Carpenter v. Federal  Nat'l Mortgage Ass'n, No. 98-563
(D.D.C. Aug. 3, 1998)  (Carpenter II), JA 8-19. In response, Fannie
Mae moved for  summary judgment, contending that: (1) it gave
Carpenter a  lower rating because her performance was compared against
 a larger pool of vice presidents than in the past and because  Julie
St. John and Michael Williams, two senior vice presi- dents in client
departments, had criticized her work2 and (2) it  rejected Carpenter
for the senior vice president position 




__________

n 1 In relevant part, section 1-2525(a) states, "It shall be an 
unlawful discriminatory practice to ... retaliate against ... any 
person in the exercise ... of ... any right granted or protected 
under this chapter." See also Blackman v. Visiting Nurses Ass'n,  694
A.2d 865, 868 (D.C. 1997) (looking to federal law to interpret 


2 St. John, Senior Vice President for Guaranty and Franchise 
Technology, and Williams, Senior Vice President for Customer 
Technology Services, were internal clients of Carpenter's legal 
services at Fannie Mae. See Carpenter v. Federal Nat'l Mortgage 
Ass'n, No. 1:98CV00563, at 4 pp 12-14 (D.D.C. Mar. 31, 1998) (Decl. 
of Anthony F. Marra), JA 55. St. John criticized Carpenter's work  on
a Y2K project as "weak" in that she "was not proactive in 


because it desired an attorney with litigation experience  (which she
admittedly did not have). Carpenter countered  that Fannie Mae's
motion was premature given the lack of  discovery. As to her rating,
Carpenter argued that her past  evaluations and comments of other
"clients" directly contra- dicted the criticisms against her and
therefore raised an issue  as to whether Kelly and Marra actually
relied on the criti- cisms in downgrading her. As to the promotion,
Carpenter  argued that "litigation experience" had never been a
prereq- uisite for senior vice president and questioned whether Fan-
nie Mae had in fact relied on the criteria. Finally, Carpenter  argued
that the September 1996 admonitions of Kelly and  Marra to give up her
discrimination claims constituted direct  evidence of their intent to
retaliate after her 1997 appeal and  therefore strengthened the
inference that her downgrade and  nonselection were linked to her


On August 3, 1998 the district court granted Fannie Mae's  motion for
summary judgment without discovery and found  that: (1) the September
1996 Kelly/Marra admonitions relat- ed solely to Carpenter I; (2)
Fannie Mae's explanation of the  downgrade (i.e., a larger pool of
vice presidents against whom  Carpenter was evaluated and the
criticisms of two clients)  demonstrated a legitimate,
non-discriminatory rationale and,  absent evidence that the criticisms
were fabricated, her claim  failed; and (3) Fannie Mae's explanation
of her nonselection  as senior vice president (i.e., the requirement
of litigation  experience) was also non-discriminatory. The district
court  further found Carpenter's contention that discovery might 
prove otherwise speculative. See JA 10-19. Carpenter time- ly


II.


Carpenter urges that the district court erred in granting  summary
judgment because Fannie Mae allegedly retaliated 




__________

n seeking to identify and solve potential legal issues." Id. Williams 
stated that Carpenter needed to "become more proactive and to  assume
greater responsibility as an advisor to the business." Id.


against her in violation of DCHRA when it gave her a 4+  rating rather
than the 5- she had received in the previous  rating period.3 Fannie
Mae responds that the number of vice  presidents against whom
Carpenter was rated increased from  eight to thirteen in 1997 as a
result of reorganization, making 




__________

n 3 A DCHRA plaintiff must first make a prima facie showing of 
retaliation. See McKenna v. Weinberger, 729 F.2d 783, 790 (D.C.  Cir.
1984); see also McDonnell Douglas Corp. v. Green, 411 U.S.  792
(1973); O'Donnell v. Associated Gen. Contractors of Am., Inc.,  645
A.2d 1084, 1086 (D.C. 1994) (burden of proof for claim of  disparate
treatment based on federal law applicable to DCHRA).  To do so, he
must establish that he was engaged in a protected  activity, that his
employer took adverse personnel action against  him and that the two
events were causally connected. See Arthur  Young & Co. v. Sutherland,
631 A.2d 354, 368 (D.C. 1993). After  the plaintiff makes a prima
facie showing, a presumption of retalia- tion arises that shifts the
burden of production to the employer to  rebut the prima facie case by
producing "clear and reasonably  specific" evidence that its actions
were taken for legitimate, non- retaliatory reasons. Texas Dep't of
Community Affairs v. Burdine,  450 U.S. 248, 258 (1981). If an
employer meets its burden of  articulating a non-retaliatory reason,
the burden of production  shifts back to the plaintiff, who "must have
the opportunity to  demonstrate that the proffered reason was not ...
true." Id. at  256. The plaintiff's burden of production "merges with
the ultimate  burden of persuading the court that she has been the
victim of  intentional discrimination." Id. The plaintiff can meet the
burden  "either directly by persuading the court that a discriminatory
 reason more likely motivated the employer or indirectly by showing 
that the employer's proffered explanation is unworthy of credence." 
Id. (citing McDonnell Douglas Corp., 411 U.S. at 804-05). If he 
successfully shows that a retaliatory motive played a motivating  part
in an adverse employment decision, the employer can never- theless
avoid liability by demonstrating by a preponderance of the  evidence
that it would still have taken the same action absent  retaliatory
motive. See Price Waterhouse v. Hopkins, 490 U.S. 228,  252-53 (1989);
Berger v. Iron Workers Reinforced Rodmen, Local  201, No. 97-7019,
1999 WL 169431, at *12 (D.C. Cir. Mar. 30, 1999).  We review de novo
the grant of summary judgment, applying the  same standard utilized by
the lower court. See Transactive Corp.  v. United States, 91 F.3d 232,


the rating pool more competitive. Fannie Mae also cites  negative
evaluations from Williams and St. Johns that con- trast with the
uniformly positive comments received by her  higher rated peers. These
explanations provide legitimate,  nonretaliatory reasons for
Carpenter's downgrade. See Bur- dine, 450 U.S. at 257-58.


Moreover, Carpenter has failed to show that Fannie Mae's  explanation
was pretextual. We first reject her underlying  contention that
because she previously received a 5- and her  performance has not
changed, she had to have earned a 5- for  1997. See Fishbach v.
District of Columbia Dep't of Correc- tions, 86 F.3d 1180, 1183 (D.C.
Cir. 1996) (absent "error too  obvious to be unintentional," court
respects employer's "un- fettered discretion" to evaluate employees)
(citation omitted);  Billet v. CIGNA Corp., 940 F.2d 812, 826 (3d Cir.
1991)  (rejecting argument based on past evaluations as theory "that 
things never change, a proposition clearly without basis in 
reality"), overruled in part on other grounds by St. Mary's  Honor
Center v. Hicks, 509 U.S. 502 (1993). Pre-1995 rat- ings were done by
other supervisors and, of the vice presi- dents who received higher
ratings than Carpenter in 1997,  only one had been compared to
Carpenter previously, receiv- ing higher ratings than she in two
previous years. We also  find Carpenter's claim that St. John's and
Williams's criti- cisms were the product of collusion and fabrication
without  record support. See Randall v. Howard Univ., 941 F. Supp. 
206, 213 (D.D.C. 1996) (granting summary judgment where  plaintiff
offered no evidence to support theory that employees  conspired
against her), aff'd, 132 F.3d 1482 (D.C. Cir. 1997).  Rather,
Carpenter's admission that she had "little contact"  with Williams may
explain his view that she needed to assume  greater responsibility and
her failure to work directly with St.  John on the Y2K project may
similarly have led St. John to  believe that she needed to be more
"proactive." 56(f) Aff. at  4, 5 pp 13, 17, JA 69, 70; see Valentino
v. United States  Postal Serv., 674 F.2d 56, 66 (D.C. Cir. 1982)
(management  judgments regarding professionals often depend on
subjective  criteria). Although Carpenter infers retaliatory intent


constitute evidence sufficient to allow a reasonable jury to  infer
that Fannie Mae's reasons for her November 1997  rating were false.
Carpenter herself cites a narrative evalua- tion of her 1996
performance, which Marra wrote in March  1997 after his September 1996
comments and after she filed  Carpenter I in October 1996, as an
accurate portrayal of her  performance and evidence that the November
1997 rating  must be the product of retaliation. See Uhl v. Zalk
Josephs  Fabricators, Inc., 121 F.3d 1133, 1136 (7th Cir. 1997)
(inter- vening satisfactory rating defeats causal link).


Because Fannie Mae offered a legitimate nondiscriminatory  reason for
not selecting Carpenter for the senior vice presi- dent
position--i.e., that Carpenter admittedly lacked the nec- essary
litigation experience--Carpenter was required to show  pretext by
"demonstrat[ing] that the proffered reason was  not the true reason
for the employment decision." Burdine,  450 U.S. at 256. Aside from
Kelly's and Marra's September  1996 comments, the contentious nature
of Carpenter I and the  cold shoulder treatment which purportedly
followed, Carpen- ter merely theorized that litigation experience was
a "false  qualification" intended solely to explain away her nonselec-
tion. Although Carpenter contends that the Position De- scription form
left the criteria for senior vice president an  open issue, it clearly
required that a "successful candidate"  have "substantial litigation
or litigation management experi- ence." Position Description, JA 59.
Moreover, Fannie Mae  in fact based its hiring decision, at least in
part, on the  applicants' litigation experience, giving final
consideration  only to those candidates with significant litigation
experience.  See SJA at 1-11.4 Because Carpenter failed to rebut
Fannie  Mae's legitimate business reasons for the two challenged 




__________

n 4 Carpenter argues for the first time on appeal that evidence of  the
candidates' credentials included in their resumes was inadmissi- ble
hearsay and that statements in Kelly's declaration relating to  those
credentials did not conform with Fed. R. Civ. P. 56(e)  (requiring
affidavits based on "personal knowledge"). Carpenter  waived these
arguments by not raising them below and therefore  we need not
consider them. See District of Columbia v. Air  Florida, Inc., 750
F.2d 1077, 1084-85 (D.C. Cir. 1984).


actions, the district court properly granted summary judg- ment to
Fannie Mae. See Fishbach, 86 F.3d at 1183 (absent  pretext, "court
must respect the employer's unfettered discre- tion to choose among
qualified candidates").


Carpenter alternatively sought remand for discovery under  Fed. R. Civ.
P. 56(f) (allowing pre-summary judgment discov- ery if "it appear[s]
from the affidavits of a party opposing the  motion that the party
cannot for the reasons stated present  by affidavit facts essential to
justify the party's opposition").  Carpenter, however, had to indicate
what facts she intended  to discover that would create a triable issue
and why she  could not produce them in opposition to the motion. See 
Strang v. United States Arms Control & Disarmament Agen- cy, 864 F.2d
859, 861 (D.C. Cir. 1989). "It is well settled that  [c]onclusory
allegations unsupported by factual data will not  create a triable
issue of fact." Exxon Corp. v. FTC, 663 F.2d  120, 126-27 (D.C. Cir.
1980) (quotation omitted, alteration  original).


Carpenter sought discovery relating to her performance  downgrade by
merely pointing to the disparity between  Williams's and St. John's
criticisms and the compliments of  other coworkers and arguing that
"this contrast raises an  inference that the criticisms were
fabricated or, at a mini- mum, immaterial," Appellant's Br. at 32, a
plainly conclusion- ary assertion without supporting facts. Carpenter
also al- leged that other vice presidents performed worse or no better
 than she did but offered no reasonable basis to suggest that 
discovery would show either that Fannie Mae made an error  too obvious
to be unintentional or actually believed that she  performed better
than her peers. See Fishbach, 86 F.3d at  1182 (to show pretext, issue
is not correctness of employer's  reasons but whether it honestly
believes them). In fact, to  the contrary, Marra averred in his
affidavit that "[b]ased on  my own experience and comments from Senior
Vice Presi- dents who are clients of the Vice Presidents, the four
Vice  Presidents who received ratings of 5 or 5- exemplified [the 
high standards of the Legal Department], and their contribu- tions
clearly exceeded that of their peers." JA 55. Carpen- ter further
suggested that litigation experience is a false 


credential for senior vice president but failed to describe what  new
facts she believed could be obtained by discovery to  support her
theory. See Strang, 864 F.2d at 861 (desire to  "test" affiants'
testimony does not justify Rule 56(f) discov- ery). Instead, Carpenter
supported her request for discovery  with undisputed facts--that
senior vice presidents in the past  lacked litigation expertise and
that the Legal Department  does not engage directly in
litigation--which in themselves do  not create an inference of
pretext. Accordingly, the district  court did not abuse its discretion
in denying Carpenter's  discovery request. See Exxon Corp., 663 F.2d
at 126 (Rule  56(f) ruling reviewed for abuse of discretion).


For the foregoing reasons, the district court's grant of  summary
judgment to the Federal National Mortgage Associ- ation is


Affirmed.