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


GLEKLEN, AMY

v.

DEM CONG CAMPGN COM


99-7041a

D.C. Cir. 2000


*	*	*


Randolph, Circuit Judge: This is an appeal from an order  of the
district court, Robertson, J., granting summary judg- ment for the
Democratic Congressional Campaign Committee  on three counts of
unlawful discrimination alleged by Amy  Gleklen, a former employee. We
affirm because Gleklen did  not rebut the Committee's reasonable,
nondiscriminatory ex- planation for its employment decision.


I


Gleklen worked as the Deputy Director of the Harriman  Communications
Center, an arm of the Democratic Congres- sional Campaign Committee,
shifting between full-time and  part-time status as the needs of the
Democratic Committee  changed between campaign seasons. In February
1997,  shortly after Gleklen informed the Committee that she was 
pregnant with her third child, the Committee decided to  embark on a
more vigorous off-cycle member services pro- gram which required it to
hire additional staff and increase  the work hours of the existing
staff. In early March 1997,  the Democratic Committee requested
Gleklen to resume full- time employment in April. Gleklen refused. She
preferred  to continue working three days a week and wanted the 
Committee to reinstitute the job-sharing arrangement it had  allowed
the previous year in the event that more work was  needed. When
Gleklen failed to report for work on April 1,  she was fired and
immediately replaced by a woman who was  not pregnant. In June 1997,
Gleklen timely filed a complaint  with the EEOC alleging that the
Committee had violated the  Pregnancy Discrimination Act, the D.C.
Human Rights Act,  and the Family and Medical Leave Act. The EEOC
respond- ed with a "no reason to believe" letter on October 14, 1997, 
and Gleklen brought suit in federal district court.


Applying the burden-shifting analysis for discrimination  claims set
forth in Aka v. Washington Hospital Center, 156  F.3d 1284 (D.C. Cir.
1998) (en banc), the district court  granted the Democratic
Committee's motion for summary  judgment because there was "no
evidence from which a jury  could reasonably find a causal link
between defendants' April 


1997 request that plaintiff resume a full-time schedule and  the
impending birth of her child in August 1997." Gleklen v.  Democratic
Congressional Campaign Comm., 38 F. Supp. 2d  18, 21 (D.D.C. 1999).


II


Title VII makes it "an unlawful employment practice for an  employer to
fail or refuse to hire or to discharge any individu- al, or otherwise
to discriminate against any individual with  respect to his
compensation, terms, conditions, or privileges  of employment, because
of such individual's sex...." 42  U.S.C. s 2000e-2(a). Congress passed
the Pregnancy Dis- crimination Act as an amendment to Title VII:
"[W]omen  affected by pregnancy, childbirth or related medical condi-
tions shall be treated the same for all employment-related  purposes
... as other persons not so affected but similar in  their ability or
inability to work...." 42 U.S.C. s 2000e(k).  The D.C. Human Rights
Act uses the same language. See  D.C. Code Ann. s 1-2505(b) (1981).
The Family and Medical  Leave Act grants eligible employees twelve
weeks of leave  during any twelve-month period following the birth of
a child,  and further provides: "It shall be unlawful for any employer
 to interfere with, restrain, or deny the exercise of or the  attempt
to exercise, any right provided under this subchap- ter." 29 U.S.C. s
2615(a)(1). Gleklen claims that the Demo- cratic Committee violated
each of these provisions.


The burden-shifting analysis of McDonnell Douglas Corp.  v. Green, 411
U.S. 792 (1973), is applicable to D.C. Human  Rights Act claims. See,
e.g., Carpenter v. Federal Nat'l  Mortgage Ass'n, 165 F.3d 69, 72
(D.C. Cir. 1999). Although  we have not considered the applicability
of McDonnell Doug- las to claims like Gleklen's under the Pregnancy
Discrimina- tion Act and the Leave Act, other circuits have concluded
that  McDonnell Douglas provides the proper framework for anal- ysis
of such claims. See, e.g., Graham v. State Farm Mutual  Ins. Co., 193
F.3d 1274, 1283 (11th Cir. 1999) (Leave Act);  Chaffin v. John H.
Carter Co., 179 F.3d 316, 319 & n.10 (5th  Cir. 1999) (Leave Act);
Maldonado v. U.S. Bank, 186 F.3d 


759, 763 (7th Cir. 1999) (Pregnancy Discrimination Act);  Kerzer v.
Kingly Mfg., 156 F.3d 396, 400-01 (2d Cir. 1998)  (Pregnancy
Discrimination Act). Given that the Pregnancy  Discrimination Act and
D.C. Human Rights Act provisions in  question are identical, and in
view of the general similarity of  the Leave Act, the McDonnell
Douglas approach offers a  coherent method of evaluating the evidence
for all three  alleged violations. For the most part, then, Gleklen's
claims  may be analyzed simultaneously.


Under McDonnell Douglas, Gleklen had to establish a  prima facie case
of discrimination, at which point the Demo- cratic Committee had to
produce evidence articulating a  legitimate, nondiscriminatory reason
for its actions, after  which Gleklen had to "produce substantial
probative evidence  that the proffered reason was not the true reason
for the  employment decision and that the real reason was [discrimi-
natory animus]." Chaffin, 179 F.3d at 320; see also Abra- ham v.
Graphic Arts Int'l Union, 660 F.2d 811, 815 (D.C. Cir.  1981).


A


On her Pregnancy Discrimination Act and D.C. Human  Rights Act claims,
Gleklen made out the requisite prima facie  case: she was pregnant,
she was qualified, she was fired, she  was replaced by a woman who was
not pregnant, and her  replacement performed Gleklen's former job
while devoting  at least some of her time to other responsibilities.1
See  Pendarvis v. Xerox Corp., 3 F. Supp. 2d 53, 57 (D.D.C. 1998).2




__________

n 1 Gleklen set forth additional allegations, unnecessary to mention.


2 The Democratic Committee also argued that the Pregnancy 
Discrimination Act does not require employers to grant maternity 
leave; that maternity leave must be given only if the employer 
overlooks comparable absences of non-pregnant employees; that  the
Committee did not offer eight weeks of leave on either a paid or 
unpaid basis to employees who were not pregnant; and that Gleklen 
therefore would not have a claim under the Act even if the  Committee
terminated her precisely to avoid providing her materni- ty leave. See
Brief for Appellees at 26-30 (citing 29 C.F.R.  s 1604.10(b); Marshall
v. American Hosp. Ass'n, 157 F.3d 520, 527 


On her claim under the Leave Act, Gleklen had to show  that she engaged
in a protected activity under this statute;  that she was adversely
affected by an employment decision;  and that the protected activity
and the adverse employment  action were causally connected. See
Chaffin, 179 F.3d at 319.  As she describes her claim, it is
essentially one of retaliation.3  Temporal proximity is often found
sufficient to establish the  requisite causal connection for such
claims. See, e.g., King v.  Preferred Technical Group, 166 F.3d 887,
893 (7th Cir. 1999).  In this case, Gleklen's supervisor requested
that she return to  work full time only a few weeks after she
disclosed her  pregnancy. These two events were sufficiently close in
time  to infer a causal nexus on the facts of this case. Compare 
Kachmar v. Sungard Data Sys., Inc., 109 F.3d 173, 177-78  (3d Cir.
1997); Shirley v. Chrysler First, Inc., 970 F.2d 39,  42-43 (5th Cir.
1992). Accordingly, Gleklen appears to have  met her burden of
alleging facts from which a reasonable jury  might infer a causal


B


Although Gleklen made out a prima facie case on each of  her claims,
she cannot prevail on any of them. The Demo- cratic Committee put
forward reasonable and non- discriminatory reasons for requiring
Gleklen to work full time  if she wanted to keep her job: they were
planning to launch a 




__________

n (7th Cir. 1998); Rhett v. Carnegie Ctr. Assocs., 129 F.3d 290, 296 
(3d Cir. 1997); Troupe v. May Dep't Stores, 20 F.3d 734, 738 (7th 
Cir. 1994); Pendarvis, 3 F. Supp. 2d at 57 n.3). The Committee  also
argued that Abraham v. Graphic Arts Int'l Union, 660 F.2d at  817,
cited by Gleklen, does not support her position that the  Pregnancy
Discrimination Act gives her rights superior to those  enjoyed by
non-pregnant employees because Abraham employed  "disparate impact"
analysis, whereas Gleklen claims disparate treat- ment. Given our
disposition of the case, it is not necessary for us to  consider the
questions these arguments pose.


3 "She planned to engage in statutorily protected activity (i.e. 
maternity leave); her employer took adverse action (she was fired); 
and there is evidence of a causal connection between these two 
events." Brief for Plaintiff-Appellant at 24.


major new off-cycle initiative which required the full-time  efforts of
existing employees as well as the hiring of new  ones. Gleklen
believes this was an elaborate pretext de- signed to force her
resignation, but she fell far short of  rebutting the Committee's more
plausible explanation for its  actions. See Aka, 156 F.3d at 1289. She
relies on four items  of "evidence," all of which lack substance or
otherwise fail to  establish a "genuine issue as to any material
fact." Fed. R.  Civ. P. 56(c).


First, in her deposition, Gleklen testified that someone had  informed
her of a conversation in which Congressman Frost  said to former
Congresswoman Margolies-Mezvinsky that  Gleklen was terminated because
Gleklen, before her last  pregnancy, had told the Democratic Committee
that she was  not going to have any more children. Gleklen's
deposition is  the only evidence of this conversation in the record,
and it is  not enough.


The rather awkward language of Rule 56(e) of the Federal  Rules of
Civil Procedure provides that "an adverse party may  not rest on mere
allegations or denials of the adverse party's  pleading, but the
adverse party's response, by affidavits or as  otherwise provided in
this rule, must set forth specific facts  showing that there is a
genuine issue for trial." While a  nonmovant is not required to
produce evidence in a form that  would be admissible at trial, the
evidence still must be  capable of being converted into admissible
evidence. The  opening lines of the rule suggest as much: "Supporting
and  opposing affidavits shall be made on personal knowledge,  shall
set forth such facts as would be admissible in evidence,  and shall
show affirmatively that the affiant is competent to  testify to the
matters stated therein." See also Celotex Corp.  v. Catrett, 477 U.S.
317, 324 (1986). Otherwise, the objective  of summary judgment--to
prevent unnecessary trials--would  be undermined. See id. at 323-24 &
n.5. Verdicts cannot  rest on inadmissible evidence. Gleklen's
evidence about the  conversation is sheer hearsay; she would not be
permitted to  testify about the conversation at trial. See Fed. R.
Evid. 801- 807. It therefore counts for nothing. See 10A Charles Alan


Wright et al., Federal Practice and Procedure s 2722, at  371-72 & n.11
(1998) (citing cases).


Second, in her affidavit opposing summary judgment and in  her
deposition, Gleklen recounted a conversation in which  Greg Speed--who
was hired full time along with Todd Glass  in March 1997 to handle the
increased workload of the  Democratic Committee's new initiative--said
that he did not  expect a significant increase in the Harriman
Communica- tions Center's workload until August 1997. Even if true, 
Gleklen never suggested that Speed was in any manner  involved in the
decision to terminate her; nor did she offer  any evidence that Speed
shared his views with the supervi- sors who made that decision.
Moreover, the record contains  several documents detailing the
Democratic Committee's new  initiative. (The documents are under
seal.) Even if use of  the Harriman Center's facilities did not rise
appreciably  before August 1997, clearly the efforts to generate
increased  work began well before Gleklen was terminated, directly 
supporting the Democratic Committee's contention that it  anticipated
an increased workload for the Harriman Center's  staff.


Third, Gleklen's affidavit purports to refute the Democratic 
Committee's statistics demonstrating increased activity at the 
Harriman Center between April and August 1997. Whether  the activity
level actually increased is not the critical ques- tion. Gleklen
needed to--but did not--refute the Democratic  Committee's evidence
showing that those in charge of the  Harriman Center reasonably
believed that its activity would  increase when they asked Gleklen to
resume a full-time  schedule and later terminated her for rejecting


Fourth, Gleklen is mistaken in asserting that Susan Maiers,  the woman
who replaced her, only worked part time to fill the  Deputy Director's
duties. The evidence shows that Maiers  was working full time for the
Democratic Committee Finance  Office one month before Gleklen's
termination and that Mai- ers was performing the duties of the
Harriman Center's  business manager on a part-time basis until a
replacement  could be found. When Gleklen was terminated, Maiers left


Democratic Committee Finance Office and took over Glek- len's post as
Deputy Director full time, working nine-to-five,  five days a week.
Maiers testified that she acted as the  Deputy Director on a full-time
basis, and performed the  business manager functions part time--the
opposite of Glek- len's assertion. This testimony further supports the
Demo- cratic Committee's contention that the Deputy Director's 
position required a full-time employee. In any event, Gleklen  did not
rebut the Committee's evidence that it was making a  good faith
attempt at filling the business manager position  while Maiers did


The district court's summary judgment in favor of the  Democratic
Congressional Campaign Committee is therefore  affirmed.