Henry Oviedo v. WMATA ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 10, 2019 Decided January 28, 2020
No. 18-7037
HENRY OVIEDO,
APPELLANT
v.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cv-01883)
Joseph Scarborough, Student Counsel, argued the cause as
amicus curiae in support of appellant. On the briefs were
Thomas Burch, appointed by the court, and David Boyer and
Megan Cambre, Student Counsel.
Henry Oviedo, pro se, filed the briefs for appellant.
M. Richard Coel argued the cause and filed the brief for
appellee. Michael K. Guss and Gerard J. Stief entered
appearances.
Before: ROGERS and WILKINS, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge WILKINS.
Opinion concurring in part and concurring in the judgment
filed by Circuit Judge ROGERS.
Concurring Opinion filed by Senior Circuit Judge
RANDOLPH.
WILKINS, Circuit Judge: In this Title VII and Age
Discrimination in Employment Act (“ADEA”) case, Henry
Oviedo appeals the District Court’s grant of summary
judgment for his former employer, Washington Metropolitan
Area Transit Authority (“WMATA”). Oviedo alleges that
during his sixteen-year tenure, WMATA failed to promote him
on the basis of age and national origin and later retaliated
against him for complaining of such discrimination by
continuing to deny him promotions. Because the record at
summary judgment fails to support Oviedo’s arguments on
appeal, we affirm the judgment of the District Court on all
claims.
I.
Oviedo is a white male of Chilean national origin with a
self-described “strong Hispanic accent.” J.A. 8. According to
his resume, attached to his amended complaint, Oviedo has
twenty-five years of engineering experience, a bachelor’s
degree in electrical engineering (BSEE), a master’s degree in
electrical engineering (MSEE), and a master’s degree in
business administration (MBA). Prior to his employment with
WMATA, Oviedo worked as a program manager for Siemens
Transportation Partnership-Puerto Rico, Dallas Area Rapid
Transit, and the Southeastern Pennsylvania Transportation
Authority.
3
WMATA hired Oviedo in 1999 as a Project Manager.
Oviedo began applying for promotions within WMATA
around 2003, submitting numerous applications for various
positions with no success. Beginning in 2007, Oviedo sent
complaints to WMATA about his lack of promotions. Two
years later, in 2009, Oviedo filed his first charge of
discrimination with EEOC. Although EEOC issued Oviedo a
right-to-sue letter in 2011, Oviedo did not file suit until 2016,
which is the instant lawsuit.
The denied promotions continued along with several
alleged demotions. In the fall of 2013, Oviedo applied for a
different Project Manager position. Although WMATA’s
human resources passed his resume on for consideration, John
Thomas, the sole decisionmaker and the Director of Office of
Major Capital Projects, denied him an interview. Thomas
wrote in a memorandum dated January 31, 2014, that he did
not select Oviedo for an interview in Fall 2013 for the Project
Manager position because he was looking for a candidate
familiar with “WMATA’s business policies, procedures and
practices,” and Oviedo’s experience was “focused on the
technical aspects of the electrical power systems for the
operation of the rail system.” J.A. 20. Rather, “[t]he Project
Manager position requires more than just technical knowledge
of WMATA but, as noted above, knowledge of the business
aspects of WMATA’s policies, procedures and practices.” Id.
On January 8, 2014, Oviedo filed his second charge of
discrimination with EEOC. In his 2014 EEOC charge, Oviedo
alleges discrimination – based on his race (White), national
origin (Chilean), and age (78) – and retaliation for prior
complaints about discrimination. The 2014 EEOC charge
states, “[o]n November 18, 2013, I was denied an interview for
4
the position of Project Manager. I believe I have more
experience than most, if not all, of the persons who were
selected for the positions.” J.A. 93. Oviedo does not describe
any other event in his 2014 EEOC charge. In 2015, Oviedo
retired from WMATA at age 80.
After receiving his right-to-sue letter from EEOC on July
14, 2016, with respect to the 2014 charge, Oviedo filed a pro
se complaint, and later a pro se amended complaint, against
WMATA, alleging numerous violations of Title VII of the
Civil Rights Act of 1964, as amended (“Title VII”), 42 U.S.C.
§§ 2000e to 2000e-17, and ADEA, 29 U.S.C. §§ 621-34.
WMATA moved for summary judgment on all claims.
Congruent with Federal Rule of Civil Procedure 56(c) (“Rule
56”) and the District Court’s Local Rule 7(h)(1),1 WMATA
submitted a “Statement of Material Facts Not in Dispute,”
containing seven facts, each followed by a citation to either
Oviedo’s amended complaint or materials that WMATA
submitted with its motion for summary judgment. J.A. 61-63.
Among those facts, WMATA stated:
In the fall of 2013, Plaintiff applied for two
Project Manager positions in another office.
Plaintiff was not selected for either of these
positions. The hiring manager, John Thomas,
who like Plaintiff is a white male, determined
that Plaintiff was not the best candidate for
either job as his experience at WMATA, as
1
“Each motion for summary judgment shall be accompanied by a statement
of material facts as to which the moving party contends there is no genuine
issue, which shall include references to the parts of the record relied on to
support the statement.” LCvR 7(h)(1) (emphases added).
5
demonstrated by his resume, concentrated
primarily on electrical engineering design. By
contrast, one of the two Project Manager
position[s] being filled dealt with the
installation of canopies over escalators, and the
primary purpose of the second position was to
serve as a financial manager for various office
projects. (Thomas Affidavit, ¶[¶] 3-4).
J.A. 62-63.
A few days after WMATA filed its motion for summary
judgment, the District Court issued an order advising Oviedo
of the rules governing summary judgment procedure, including
Rule 56 and Local Rule 7(h)(1). This type of order is
commonly referred to as a Fox v. Strickland Order after our
decision of the same name, 837 F.2d 507 (D.C. Cir. 1988) (per
curiam), and it provides pro se litigants with a detailed
explanation of the summary judgment process, including
instructions on how to comply with Rule 56 and Local Rule
7(h) and the consequences of a failure to comply.
The District Court’s Order specifically warned Oviedo
that “[o]n a motion for summary judgment, ‘any factual
assertion in the movant’s affidavits will be accepted as being
true unless [the opposing party] submits his own affidavits or
other documentary evidence contradicting the assertion.’”
Oviedo v. WMATA, No. 16-cv-1883, dkt. 28, at 2 (Aug. 28,
2017) (alternation in original) (quoting Neal v. Kelly, 963 F.2d
453, 456 (D.C. Cir. 1992)). In addition, the District Court
quoted Rule 56(c)’s mandate:
6
(1) Supporting Factual Positions. A party
asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in
the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations (including those made
for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not
establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
Id. The District Court advised Oviedo that Local Rule 7(h)(1)
enables the District Court to assume a fact “identified by the
moving party in its statement of material facts” as admitted
unless the fact is controverted in the statement of genuine
issues filed in opposition to the motion. Id. at 3. Driving the
point home, the District Court warned that “mere statements
that the moving party’s affidavits are inaccurate or incorrect are
not sufficient.” Id.
Oviedo opposed the motion for summary judgment, but he
did not file a separate statement disputing any facts asserted in
WMATA’s Statement of Material Facts Not in Dispute with
any statement of genuine issues, as required by Local Rule
7(h)(1).2 But more importantly, Oviedo did not file any
2
“An opposition to such a motion shall be accompanied by a separate
concise statement of genuine issues setting forth all material facts as to
which it is contended there exists a genuine issue necessary to be litigated,
which shall include references to the parts of the record relied on to support
the statement.” LCvR 7(h)(1).
7
affidavits to support any factual assertions made in his
opposition to the motion for summary judgment. In his
response to the motion for summary judgment, Oviedo
presented argument – without record evidence to support his
statements – that Thomas “erroneously and arbitrarily decided”
that Oviedo’s qualifications were insufficient for the position,
without disputing that the position was one focused on finance.
J.A. 102. In the accompanying memorandum, Oviedo argued
that he was more qualified for both Fall 2013 Project Manager
positions than the selected candidates, Diana Levy and Steve
Larkin, because Levy and Larkin’s resumes show “very
marginal” work experience “in comparison with the Job
Posting Requirements and the WMATA Job Code 2854.” J.A.
106 (emphasis added).
Oviedo attached to his memorandum in opposition, as
relevant to this appeal: (1) a WMATA position description No.
2854 for a Project Manager position, dated September 17,
2010; (2) an applicant resume for Diana Levy; and (3) excerpts
from Thomas’s deposition. To be clear, Oviedo did not submit
any evidence related to Steve Larkin (the candidate hired as
canopy installation Project Manager), any evidence related to
any other candidate that applied or interviewed for either of the
Fall 2013 Project Manager positions, or any document
purporting to be the “Job Posting Requirements” referenced in
his memorandum. He attached the Project Manager position
description entitled “WMATA Job Code 2854” dated 2010, but
there was no declaration or testimony showing what relevance
that document had to the 2013 vacancies at issue.
In granting summary judgment for WMATA on all
Oviedo’s claims, the District Court concluded that Oviedo’s
ADEA claims were barred by sovereign immunity, all Title VII
claims except those arising from the Fall 2013 decision were
8
not timely exhausted or not timely filed, and Oviedo failed to
show that WMATA’s proffered reasons for the Fall 2013
decision were pretextual, dooming those claims under the final
step of the three-step framework laid out in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Oviedo appeals
all of these decisions. We appointed amicus curiae to present
arguments in support of his appeal.
II.
The Court reviews a district court’s grant of summary
judgment under the familiar de novo standard, viewing “the
evidence in the light most favorable to the nonmoving party”
and drawing all reasonable inferences in his or her favor.
Minter v. District of Columbia, 809 F.3d 66, 68 (D.C. Cir.
2015) (quoting Breen v. Dep’t of Transp., 282 F.3d 839, 841
(D.C. Cir. 2002)). Rule 56(a) requires a court to “grant
summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a);
see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Relevant here, “[a] document filed pro se is ‘to be
liberally construed.’” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
III.
Oviedo argues that the District Court erred at every turn.
We disagree, concluding that the District Court properly
9
granted summary judgment on all Oviedo’s ADEA and Title
VII claims.3
A.
Oviedo challenges the District Court’s conclusion that
WMATA enjoys sovereign immunity from Oviedo’s ADEA
claims. Following Kimel v. Florida Board of Regents, 528 U.S.
62 (2000), in which the Supreme Court held that the ADEA did
not abrogate States’ Eleventh Amendment immunity, we have
held that because WMATA enjoys the same immunity from
suit as its State signatories, WMATA is immune from ADEA
liability. Jones v. WMATA, 205 F.3d 428, 431-32 (D.C. Cir.
2000). Jones also explicitly forecloses Oviedo’s primary
argument on appeal that WMATA waived its immunity
because its discriminatory acts in its promotion and demotion
decisions fall outside the scope of “governmental functions” to
3
In their opening briefs on appeal, Oviedo and amicus insert references to
evidence that was not before the District Court on the motion for summary
judgment, a tactic to which WMATA objects. WMATA is correct that this
Court may only consider the record as it was before the District Court when
reviewing the District Court’s decision. See Goland v. CIA, 607 F.2d 339,
371 (D.C. Cir. 1978). Although this Court has sometimes made exceptions
to this rule, Oviedo and amicus fail to provide a basis for us to apply any of
those rarely used exceptions here. See, e.g., Johnson v. Greater Se. Cmty.
Hosp. Corp., 951 F.2d 1268, 1273 (D.C. Cir. 1991) (applying exception for
ripeness issue); Powell v. U.S. Bureau of Prisons, 927 F.2d 1239, 1243
(D.C. Cir. 1991) (remanding for consideration of new evidence in light of
“unusual circumstances” and equities of case). We therefore disregard the
documents added to the Joint Appendix that were not presented to the
District Court, i.e., J.A. 215-71.
10
which immunity applies.4 Appellant’s Opening Br. 19.
“WMATA’s ‘governmental function’ immunity encompasses
‘the hiring, training, and supervision of WMATA personnel.’”
Jones, 205 F.3d at 432 (quoting Burkhart v. WMATA, 112 F.3d
1207, 1217 (D.C. Cir. 1997)); see also Beebe v. WMATA, 129
F.3d 1283, 1287-88 (D.C. Cir. 1997) (While employment
decisions “are not quintessential government functions,” they
are “discretionary in nature, and thus immune from judicial
review.” (citation and internal quotation marks omitted)). Nor
can this Court “waive the WMATA immunity” on the basis that
WMATA’s decisionmaker intentionally violated the ADEA.
Appellant’s Opening Br. 19. It is the state actor – not the court
– that must consent to suit, and such waiver must be
“unequivocally expressed.” Sossamon v. Texas, 563 U.S. 277,
284 (2011) (quoting Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 99 (1984)).
B.
Next, Oviedo invokes various equitable doctrines to
resurrect his Title VII claims that the District Court concluded
were either not exhausted or untimely filed, but these
arguments fail.
“Before suing under . . . Title VII, an aggrieved party must
exhaust his administrative remedies by filing a charge of
discrimination with the EEOC within 180 days of the alleged
4
Section 80 of the WMATA Compact provides, in pertinent part, that
WMATA “shall be liable for its contracts and for its torts . . . but shall not
be liable for any torts occurring in the performance of a governmental
function.” Morris v. WMATA, 781 F.2d 218, 220 (D.C. Cir. 1986) (quoting
WMATA Compact, Pub.L. No. 89–774, 80 Stat. 1324 (1966)).
11
discriminatory incident.” Washington v. WMATA, 160 F.3d
750, 752 (D.C. Cir. 1998). Many of the denied promotion and
demotion claims in Oviedo’s amended complaint never made
their way into either the 2009 EEOC charge or the 2014 EEOC
charge. Oviedo seeks to be excused from timely exhausting
these claims, arguing that he was denied promotion so often
that the exhaustion requirement became too “extraordinar[ily]
technical.” Appellant’s Opening Br. 21-22.
“[E]quitable tolling allows a plaintiff to avoid the bar of
the limitations period if despite all due diligence he is unable
to obtain vital information bearing on the existence of his
claim[.]” Currier v. Radio Free Europe/Radio Liberty, Inc.,
159 F.3d 1363, 1367 (D.C. Cir. 1998) (citing Smith-Haynie v.
District of Columbia, 155 F.3d 575, 579 (D.C. Cir. 1998)).
However, “[t]he court’s equitable power to toll the statute of
limitations will be exercised only in extraordinary and carefully
circumscribed instances.” Mondy v. Sec’y of the Army, 845
F.2d 1051, 1057 (D.C. Cir. 1988). Other than navigating Title
VII’s exhaustion process pro se, the record does not
demonstrate that Oviedo faced any hurdles in exercising his
rights under Title VII to warrant equitable tolling. As the
District Court correctly noted, equitable tolling “does ‘not
extend to what is at best a garden variety claim of excusable
neglect.’” J.A. 204 n.1 (quoting Irwin v. Dep’t of Veteran’s
Affairs, 498 U.S. 89, 96 (1990)). Summary judgment was
properly granted to WMATA on all claims not timely brought
in either the 2009 or 2014 EEOC charges.5
5
Oviedo’s reliance on Miller v. Hersman, 594 F.3d 8, 11 (D.C. Cir. 2010),
to toll the deadline to consult with EEOC also fails. Miller addressed only
tolling the time to file a charge before EEOC; it does not apply to claims
that were never brought before EEOC.
12
After an employee files a charge with EEOC and receives
notice of final agency action, the employee must file suit within
ninety (90) days. 42 U.S.C. § 2000e-5(f)(1). Oviedo received
notice of final agency action after his 2009 EEOC charge via a
right-to-sue letter dated March 15, 2011. Thus, he needed to
file suit well before this lawsuit commenced on September 20,
2016. Oviedo argues equitable estoppel should excuse this
delay because WMATA “advised” Oviedo not to file a lawsuit
until it finished investigating his failure-to-promote claim.
Appellant’s Opening Br. 21. “‘Equitable estoppel’ precludes a
defendant, because of his own inequitable conduct – such as
promising not to raise the statute of limitations defense – from
invoking the statute of limitations.” Chung v. U.S. Dep’t of
Justice, 333 F.3d 273, 278 (D.C. Cir. 2003) (citations omitted).
Unfortunately for Oviedo, he failed to put forth any record
evidence to support this assertion.
We therefore affirm the grant of summary judgment on all
Title VII claims not exhausted via the 2014 Charge of
Discrimination. To those exhausted claims we now turn.
C.
The only Title VII claims arising out of the 2014 EEOC
charge are claims of retaliation and national-origin
discrimination in the Fall 2013 Project Manager decision.6
Title VII claims may be proven by direct or circumstantial
evidence, but Oviedo presents neither.
6
Oviedo does not pursue a claim based on race.
13
1.
Direct evidence – sufficient on its own to entitle a plaintiff
to a jury trial – usually takes the form of a “statement that itself
shows . . . bias [against a protected class] in the [employment]
decision.” Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 576 (D.C.
Cir. 2013) (per curiam) (second alteration in original) (quoting
Vatel v. All. of Auto. Mfrs., 627 F.3d 1245, 1247 (D.C. Cir.
2011)). As direct evidence of Title VII discrimination, Oviedo
identifies WMATA Construction Manager A. Kolodne, who
“criticized [Oviedo] very hard” for his Spanish accent during a
work meeting. Appellant’s Opening Br. 15. The only record
evidence of this alleged remark is in a letter from Oviedo to
Janne Weissman, Director of Human Resources for WMATA,
dated September 11, 2009, in which Oviedo references that in
2006, Kolodne told Oviedo that “I didn’t understand anything
you just said,” in reference to Oviedo’s language skills. J.A.
130, 132-33. In his brief on appeal, Oviedo states that the
comment by Kolodne occurred “around 2012,” Appellant’s
Opening Br. 23, but he provides no citations to the record to
support a statement occurring in 2012. Furthermore, Oviedo
offers no evidence that Thomas, the decisionmaker, shared
Kolodne’s sentiments. As a result, Kolodne’s statement does
not constitute either direct or indirect evidence of
discrimination.
2.
Because Oviedo presents no direct evidence of
discrimination or retaliation, he must rely on indirect evidence,
using the three-step framework for such claims set forth in
McDonnell Douglas, 411 U.S. 792. See Iyoha v. Architect of
the Capitol, 927 F.3d 561, 574 (D.C. Cir. 2019). Where there
has been an adverse employment action and the employer
14
asserts a legitimate, non-discriminatory and non-retaliatory
reason for the decision, we focus on pretext. Brady v. Office of
the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008); see
also Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009)
(Title VII retaliation claims follow the same principles as Title
VII discrimination). Therefore, we “conduct one ‘central
inquiry’ in deciding an employer’s motion for summary
judgment: ‘whether the plaintiff produced sufficient evidence
for a reasonable jury to find that the employer’s asserted non-
discriminatory [and non-retaliatory] reason was not the actual
reason and that the employer intentionally discriminated [or
retaliated] against the plaintiff on a prohibited basis.’” Iyoha,
927 F.3d at 566 (quoting Adeyemi v. District of Columbia, 525
F.3d 1222, 1226 (D.C. Cir. 2008)).
A plaintiff need not present evidence “over and above
rebutting the employer’s stated explanation in order to avoid
summary judgment,” Aka v. Washington Hospital Center, 156
F.3d 1284, 1290 (D.C. Cir. 1998) (en banc), but he must
present evidence from which a reasonable jury “could reject the
employer’s proffered explanation,” id. at 1292 (citation
omitted). “In an appropriate case, ‘[t]he factfinder’s disbelief
of the reasons put forward by the defendant’ will allow it to
infer intentional discrimination.” Id. at 1294 (alteration in
original) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 511 (1993)). But a plaintiff will not survive summary
judgment “where ‘the plaintiff created only a weak issue of fact
as to whether the employer’s reason [for the termination] was
untrue and there [is] abundant and uncontroverted independent
evidence that no discrimination [has] occurred.’” Giles v.
Transit Emps. Fed. Credit Union, 794 F.3d 1, 13 (D.C. Cir.
2015) (alterations in original) (quoting Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 148 (2000)).
15
Oviedo argues that the record evidence shows that Thomas
hired candidates less qualified than he for the two Fall 2013
Project Manager positions and that Thomas shifted his
explanations for his hiring decisions after the hiring to make
his selected candidates appear more qualified. However, the
lack of evidence put into the record foredooms both of
Oviedo’s arguments.
i.
We begin with Oviedo’s qualification-comparison
argument.
If a factfinder can conclude that a reasonable
employer would have found the plaintiff to be
significantly better qualified for the job, but this
employer did not, the factfinder can legitimately
infer that the employer consciously selected a
less-qualified candidate – something that
employers do not usually do, unless some other
strong consideration, such as discrimination,
enters into the picture.
Aka, 156 F.3d at 1294. Of course, imbedded in this type of
attack is the assumption that the plaintiff must present the court
with the competing qualifications and some sort of “position
specification” from which the Court may conduct such a
comparison for the particular position. See id. at 1295.
As explained above, Thomas selected two Project
Managers, one of whom – Steve Larkin – was selected to focus
on canopy installation. Oviedo argues he was more qualified
for both positions, but as explained supra, he only introduced
evidence of Levy’s qualifications, preventing the District Court
16
and this Court from comparing Oviedo’s qualifications to those
of Larkin. While a reasonable person could conclude that
Oviedo knew how to install canopies, that is not the test. Aka,
156 F.3d at 1294 (asking whether “a factfinder can conclude
that a reasonable employer would have found the plaintiff to be
significantly better qualified for the job” (emphasis added)).
Without any evidence as to Larkin’s qualifications, no
reasonable factfinder could find that Oviedo was “significantly
better qualified” than Larkin. Id.
A similar problem arises with respect to the other
challenged non-promotion. Oviedo failed to dispute
WMATA’s statement about the relevant job specifications with
identified materials in the record, as is required by Rule 56(c).
The District Court treated WMATA’s statement about the
finance-focused specifications of the position as undisputed.
Although – much to our concurring colleague’s frustration –
the District Court did not cite to its obvious authority to deem
the statement as undisputed under Rule 56(e)(2) or Local Rule
7(h), the opinion did not address any other “job posting
requirement” or “WMATA Job Code 2854.” The opinion’s
silence on any purported material dispute of fact related to the
job requirements – as surely competing job specifications
would be – satisfies us that the District Court concluded that
Oviedo failed to present a material dispute of fact on the matter.
We find no error in the conclusion to treat WMATA’s
statement of the job description as undisputed, as it is a faithful
application of the Federal Rules of Civil Procedure.
At this juncture, a brief review of the interplay among the
various provisions in Rule 56 is necessary. Rule 56(c)(1)
requires that “[a] party asserting that a fact cannot be or is
genuinely disputed must support the assertion” using specific
materials enumerated in Rule 56(c)(1)(A). FED. R. CIV. P.
17
56(c)(1) (emphasis added). The form in which a party must
provide the “required support” is dictated by local rules. FED.
R. CIV. P. 56(c) advisory committee’s notes to 2010
amendment. While the local rules provide the mechanics, the
Federal Rules of Civil Procedure explicitly require a party
opposing summary judgment to support an assertion that a fact
is genuinely disputed with materials in the record. FED. R. CIV.
P. 56(c); see Greene v. Dalton, 164 F.3d 671, 674 (D.C. Cir.
1999) (“Accepting [ ] conclusory allegations as true [ ] would
defeat the central purpose of the summary judgment device,
which is to weed out those cases insufficiently meritorious to
warrant the expense of a jury trial.”) Under Rule 56(a), the
District Court “shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” FED.
R. CIV. P. 56(a).7
On appeal, Oviedo and amicus rely heavily on the premise
that WMATA Job Code 2854 was the operative job
specification for the position ultimately filled by Levy, but this
is nothing more than an unsupported allegation. The District
Court correctly concluded that Oviedo failed to produce any
testimony or documentation from which a reasonable jury
could find in his favor on these remaining claims, and his
failure to dispute WMATA’s Statement in his own opposition
7
The use of the word “shall” was restored to Rule 56(a) in the 2010
amendments to reinforce the case law that a court has no discretion to deny
summary judgment where the movant has met its burden under the rule and
the opposing party has failed to sufficiently show “the existence of an
element essential to [its] case.” FED. R. CIV. P. 56(a), advisory committee’s
notes to 2010 amendment (quoting Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986)).
18
before the District Court precludes him from attempting to
create a material factual dispute on appeal.
Crucially, Oviedo never submitted a declaration or
affidavit stating that Job Code 2854 was the same job
description to which he applied in Fall 2013. Oviedo did not
submit any deposition testimony – either his own or from any
other deponent – supporting the contention that Job Code 2854
was the operative posting for either of the two Fall 2013 Project
Manager positions. When Oviedo confronted Thomas with
No. 2854 during Thomas’s deposition, Thomas could not
remember what job code corresponded to the Fall 2013 Project
Manager position, and of course, “questions are not
evidence[.]” United States v. Watson, 171 F.3d 695, 697 (D.C.
Cir. 1999).
The District Court properly treated Thomas’s description
of the Project Manager positions as undisputed, and we rightly
do the same. While we liberally construe pro se pleadings, pro
se litigants do not have a “license” to “ignore the Federal Rules
of Civil Procedure.” Moore v. Agency for Int’l Dev., 994 F.2d
874, 876 (D.C. Cir. 1993) (citation and internal quotation
marks omitted). Oviedo’s failure to provide support in the
record for his memorandum’s allegations of the job
specifications barred him from disputing WMATA’s
description of the job specifications. FED. R. CIV. P. 56(c), (e);
see Waterhouse v. District of Columbia, 298 F.3d 989, 992
(D.C. Cir. 2002) (“[L]ike the district court, we treat as admitted
all facts not controverted in [the plaintiff’s] Verified
Statement.”).
The concurrence suggests that the proper course of action
following a party’s failure to properly support an assertion of
fact is to “give Oviedo the opportunity to correct the
19
deficiency, or at least explain why he is not eligible for such
consideration[.]” Concurring Op. 2 (citing FED. R. CIV. P. 56(e)
and LCvR 7(h)(1)). Of course, Oviedo did receive notice –
exclusively written for pro se litigants – explaining that an
opposing party must dispute the moving party’s factual
allegations with “his own affidavits or other documentary
evidence contradicting the assertion.” Oviedo, No. 16-cv-
1883, dkt. 28, at 2 (citation and internal quotation marks
omitted). It may have helped Oviedo better understand the
decision below had the District Court explicitly stated in its
opinion why Job Code 2854 alone – unaccompanied by any
record evidence connecting it to the positions at issue in the
case – was insufficient to challenge WMATA’s supported
assertions about the applicable position descriptions.
However, the District Court was under no obligation to do so,
and it acted perfectly within its authority to “consider [a] fact
undisputed for purposes of the motion” without giving Oviedo a
second warning. FED. R. CIV. P. 56(e)(2).
With the issue of job specifications resolved, we swiftly
reject Oviedo and amicus’s primary argument on appeal that
the District Court erred by not conducting a qualifications
comparison as instructed in Aka between Levy and Oviedo. In
light of the undisputed fact that Thomas was seeking a
“financial manager for various projects,” no reasonable jury
could conclude that Oviedo was “significantly better qualified
for the job.” Aka, 156 F.3d at 1294. Oviedo has a BSEE,
MSEE, and MBA. Levy had a bachelor’s degree in
international economic relations, an MBA, and a master’s
degree in project management. From an educational
standpoint, Oviedo was not “significantly better qualified” than
Levy. See Aka, 156 F.3d at 1294 (emphasis added). Levy’s
“professional profile summary” indicates “over 9 years of
progressively responsible experience in the areas of
20
transportation energy construction and project finance,” with
experience in cost estimation, budgeting, and staff
management. J.A. 141. Oviedo’s resume summary states that
he has “more than 25 years of engineering experience in the
rail transit industry. . . . includ[ing] developing, executing, and
commissioning major construction for heavy and light rail
projects.” J.A. 23.8 Although Oviedo possessed a great deal
of experience with WMATA, no reasonable jury could say –
based on the record as it was before the District Court – that
Oviedo’s tenure at WMATA in various engineering capacities
rendered him “significantly better qualified” than Levy for a
finance-focused Project Manager position, Aka, 156 F.3d at
1294.
ii.
This leaves only Oviedo’s argument that a reasonable jury
could infer discrimination because WMATA’s explanations as
to why Oviedo was not selected shifted over time, but this too
is unsupported by the record.9 In the January 31, 2014,
memorandum, Thomas indicated that he did not select Oviedo
for an interview because Oviedo’s experience was “too
narrowly focused,” as the position necessitated “knowledge of
the business aspects of WMATA’s policies, procedures, and
practices.” J.A. 20. In its Statement of Material Facts Not in
Dispute, WMATA stated that Oviedo’s WMATA experience
“concentrated primarily on electrical engineering design,” in
8
Unfortunately, due to the poor quality of the copy, the remaining content
of Levy’s resume is mostly indecipherable, so our comparison analysis can
go no further. See J.A. 141-43.
9
Amicus’s argument for shifting explanations relies on evidence that was
not put before the District Court at summary judgment. See supra note 3.
21
“contrast” to canopy installation and financial management.
J.A. 63. Thomas’s declaration stated that he felt Oviedo
“concentrated primarily on electrical engineering design,
which was not the focus of either of the two positions in issue.”
J.A. 66. Thomas gave the same sort of testimony in his
deposition, testifying that he viewed Oviedo’s experience in
electrical engineering as “a very narrow focus of experience at
[WMATA],” J.A. 70, and that Oviedo lacked “breadth of the
experience,” see J.A. 71.
“[S]hifting and inconsistent justifications are ‘probative of
pretext.’” Geleta v. Gray, 645 F.3d 408, 413 (D.C. Cir. 2011)
(quoting EEOC v. Sears Roebuck & Co., 243 F.3d 846, 853
(4th Cir. 2001)). But we fail to see how these explanations are
sufficiently inconsistent as to be “probative of pretext” absent
any other pretext evidence. Id. In Geleta, where we “th[ought]
a reasonable jury could find that the [employer’s] proffered
reasons [were] a pretext,” there were three completely different
reasons offered – first, offering no reason at all; second,
claiming the program to which the plaintiff directed was being
dismantled; and third, stating a desire to “realign[]” plaintiff’s
program. Id. (alteration in original). On top of that, we also
noted that a reasonable jury could conclude one of those
reasons was “itself not credible.” Id. at 414. Here, all three of
WMATA and Thomas’s explanations sing the same tune: that
Oviedo’s skills and expertise in electrical engineering did not
align with the skills sought for either of the Project Manager
positions. Although Thomas’s explanation in 2014 fails to
explicitly reference canopy installation and financial
management and it does not explain that Thomas actually hired
two candidates, it is neither inconsistent nor shifting. We need
not decide whether such evidence combined with other
evidence of pretext would be sufficient to survive summary
22
judgment because there is no other pretext evidence in the
record. This evidence alone is not enough.
To sum up, Oviedo failed to present evidence from which
a reasonable jury could conclude that WMATA’s non-
discriminatory and non-retaliatory rationale for denying
Oviedo promotion in Fall 2013 was pretext for discrimination
or retaliation.10
IV.
For the foregoing reasons, the judgment of the District
Court is affirmed.
So ordered.
10
Because Oviedo’s discrimination and retaliation claims are both analyzed
under the same inquiry, they fail for the same reasons. Allen v. Johnson,
795 F.3d 34, 40 (D.C. Cir. 2015) (Title VII retaliation and discrimination
claims use the same burden-shifting framework and typically rely on the
same types of circumstantial evidence to show pretext.). At any rate, the
only evidence on which Oviedo conceivably relies to show retaliation is
temporal proximity between the last alleged protected activity – filing his
2009 EEOC charge – and the denied promotion in Fall 2013. While there is
no bright-line time limit for temporal proximity, an interval of several years
– without other evidence – fails in this circumstance. See Hamilton v.
Geithner, 666 F.3d 1344, 1357-58 (D.C. Cir. 2012) (discussing temporal
proximity).
ROGERS, Circuit Judge, concurring in part and concurring
in the judgment: Although I agree that summary judgment in
favor of WMATA was appropriate, see Oviedo v. WMATA, 299
F. Supp. 3d 50, 59–63 (D.D.C. 2018), I write separately
because the majority needlessly resolves Oviedo’s appeal on a
ground not raised by any party nor mentioned by the district
court. In doing so, the majority exalts form over substance,
creating a new defense that has never been raised by the parties.
Federal Rule of Civil Procedure 56(a), however, requires the
party moving for summary judgment to identify all defenses.
The majority, sua sponte, has invoked district court Civil
Local Rule 7(h) to ignore material facts and supporting
evidence that Oviedo proffered in his opposition to WMATA’s
motion for summary judgment. That rule permits — but does
not require — district courts to assume that facts identified in
the moving party’s statement of material facts are admitted
unless those facts are controverted in the non-moving party’s
“separate” statement of genuine issues. See LCvR7(h)(1).
Accordingly, “[t]his circuit has long upheld strict compliance
with the district court’s local rules on summary judgment when
invoked by the district court.” Burke v. Gould, 286 F.3d 513,
517–20 (D.C. Cir. 2002) (emphasis added); see also Arrington
v. United States, 473 F.3d 329, 335 (D.C. Cir. 2006). This
approach is reflected in Jackson v. Finnegan, Henderson,
Farabow, Garrett & Dunner, 101 F.3d 145, 150–54 (D.C. Cir.
1996).
The majority faults Oviedo for “his failure to dispute”
WMATA’s Statement of Facts describing the job
specifications for the positions for which Oviedo did not
receive an interview for what he claims were discriminatory
reasons. Op. 17–18. Proceeding pro se, Oviedo included in
his opposition to WMATA’s motion for summary judgment a
concise, numbered list of facts that he sought to prove at trial,
Opp’n to Summ. J. 5–6, and a factual background section with
ample record citations, Factual Background, Opp’n to Summ.
2
Johns. 7–20. Included in the factual background section was
Oviedo’s contention that the selected project managers had
“very marginal” work experience compared to the “Job Posting
Requirements and the WMATA Job Code 2854,” a copy of
which he attached to his opposition. Although Oviedo did not
put those contentions in a separate statement, see
LCvR7(h)(1), WMATA and the district court seemingly
proceeded as if he had. Alas, unbeknownst to Oviedo until
announced two years later at oral argument before this court,
his list of disputed facts and supporting evidence are unworthy
of consideration because they were in the same document as
his arguments, thus violating the local rule. See Op. at 18. This
conclusion — which surely must have come as a surprise to
WMATA as well as Oviedo — was both unfair and
unnecessary for affirmance.
The majority acknowledges the court’s obligation to
liberally construe documents filed pro se and to draw all
reasonable inferences in the favor of the party opposing
summary judgment. See Op. at 8. But it fails to explain why
it decided on its own accord, without warning, to strictly
enforce the federal and local summary judgment rules against
this pro se plaintiff. WMATA never invoked the local rule in
moving for summary judgment. Nor did the district court alert
Oviedo that his statement of facts was deficient because it was
not in a separate document or give any indication that the local
rule played any part in its decision. In short, Oviedo never
received notice of this apparently pivotal formatting defect.
The court ought to give Oviedo the opportunity to correct the
deficiency, or at least explain why he is not eligible for such
consideration, as is any attorney, rather than belatedly exercise
the discretion afforded to the district court. Federal Rule of
Civil Procedure 56(e) contemplates that even attorneys can be
afforded a second chance to perfect factual statements.
3
Furthermore, contrary to the majority’s characterization,
Oviedo’s contention that Job Code 2854 was the operative
position description was not an “unsupported allegation.” Op.
at 17. WMATA may never have expressly admitted that this is
the job description for the positions for which Oviedo applied,
but neither has WMATA at any time disavowed that it was the
job posting, including when given the opportunity at oral
argument before this court, see Oral Arg. Rec. 25:58–27:01
(Sept. 10, 2019). Thus, in the district court, Oviedo had no
reason to offer additional verification and WMATA had ample
notice that Oviedo intended to rely on this job description.
Consequently, the court is obligated to draw the inference in
Oviedo’s favor that the job description he has consistently
referred to, and provided as an attachment in opposing
summary judgment, and WMATA has never objected to, is the
operative one. See, e.g., Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986).
By importing the local rule’s grant of discretion to the
district court to exclude this evidence at this late stage of the
proceedings because of a formatting error, the majority unfairly
hands WMATA a new defense at the expense of an unwitting
pro se plaintiff. Therefore, I do not join the majority’s
reasoning in affirming the grant of summary judgment to
WMATA and consider it unnecessary inasmuch as the district
court correctly found that Oviedo had failed to produce any
evidence to support his only preserved claim of national origin
discrimination. See Oviedo, 299 F. Supp. 3d at 59–63.
RANDOLPH, Senior Circuit Judge, concurring: I join all of
the court’s opinion, including especially its discussion of Local
Civil Rule 7(h). See Burke v. Gould, 286 F.3d 513, 523 (D.C.
Cir. 2002) (Randolph, J., dissenting in part and discussing
former Local Civil Rule 56.1, the language of which is now
contained in Rule 7(h)).