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Carter v. George Washington University

October 29, 2004

CYNTHIA JACOBS CARTER, APPELLANT
v.
GEORGE WASHINGTON UNIVERSITY, APPELLEE



Appeal from the United States District Court for the District of Columbia (No. 99cv03134).

Before: Sentelle, Tatel, and Roberts, Circuit Judges.

The opinion of the court was delivered by: Tatel, Circuit Judge

Argued September 10, 2004

Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time.

George Washington University denied appellant, an African American born in 1951, promotions to all three positions she applied for over the course of a year. Resigning from GW, appellant sued, claiming race discrimination under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981, age discrimination under the Age Discrimination in Employment Act of 1967, retaliation, constructive discharge, and breach of contract. Appellant's trial counsel, however, conducted virtually no discovery, and GW moved for summary judgment, which the district court granted on all counts. Seeing insufficient evidence in the record from which a jury could find in appellant's favor, we affirm.

I.

After beginning a job at appellee George Washington University, appellant Cynthia Carter received three promotions over five years while earning a master's degree and pursuing a Ph.D. From 1994 onward, Carter worked as Director of Reunions and Events in the Alumni Relations Office. According to Carter, because she spoke out about what she considered discriminatory treatment within that office, her relationship with Michael Worth, GW's Vice President for Development and Alumni Affairs, began deteriorating.

In 1997 and 1998, Carter applied for the positions of Executive Director of Alumni Relations, Director of Development at Mount Vernon College (a former women's college now owned by GW), and Director of Corporate and Foundation Relations. She obtained none of these promotions. Carter then resigned, taking a higher-paying job at Howard University.

Following the second promotion denial, Carter filed a complaint with the Equal Employment Opportunity Commission, which she later amended to cover the third denial. When the EEOC chose not to pursue the complaint, Carter sued GW in the United States District Court for the District of Columbia, raising claims based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e(16); 42 U.S.C. § 1981; the Age Discrimination in Employment Act of 1967 (''ADEA''), 29 U.S.C. §§ 621-634; and common law. Specifically, she claimed race discrimination regarding all three promotion denials, age discrimination regarding the first two denials, retaliation regarding the last two denials, retaliation regarding an adverse evaluation, constructive discharge, and breach of contract.

Despite what the district court termed ''ample opportunity to conduct discovery,'' Carter's trial counsel (she is now represented by different counsel) deposed no witnesses, served no interrogatories, and requested no admissions. Carter v. George Washington Univ., 180 F. Supp. 2d 97, 107 (D.D.C. 2001); Carter v. George Washington Univ., No. 99- 3134 (D.D.C. May 17, 2001). At the very end of the discovery period, Carter's counsel did ask GW to produce certain documents, but because he failed to comply with the Federal Rules of Civil Procedure in submitting this request, ''discovery TTT ended and plaintiff [had] taken no discovery whatsoever.'' Carter, No. 99-3134 (D.D.C. May 17, 2001). GW then moved for summary judgment. As part of her opposition, Carter attached her own affidavit, but submitted no sworn statements from any one else. Claiming that Carter's affidavit included ''inadmissible hearsay, speculation and conclusions,'' GW moved to strike numerous paragraphs. Though the district court did not address GW's motion to strike, it granted GW's motion for summary judgment on all counts without referring to Carter's hearsay statements. See 180 F. Supp. 2d at 99-102, 111. The district court later denied Carter's motion for reconsideration. Carter v. George Washington Univ., No. 99-3134 (D.D.C. Aug. 18, 2003).

II.

Before addressing the merits of Carter's appeal, we consider GW's motion in this court to strike several of Carter's exhibits and those parts of her opening brief that reference them. Specifically, GW argues that certain pages from Carter's deposition and the university's personnel manual were never presented to the district court and thus cannot be part of the record on appeal. Conceding that her lawyer failed to file these documents in opposition to GW's motion for summary judgment, Carter insists that counsel did file them as attachments to her motion for reconsideration. GW responds that even were this true, Carter may not have a ''second bite at the apple'' by including in her motion for reconsideration evidence which she could have submitted to the district court prior to summary judgment.

We need not consider GW's latter argument, for our review of the district court's docket sheet and file convinces us that Carter's trial counsel never filed the disputed documents as attachments to the motion for reconsideration, although the motion itself made reference to them. This circuit will not normally consider evidence that a party never presented to the district court. Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1035-36 (D.C. Cir. 1988); see Fed. R. App. P. 10(a) (describing the composition of the record on appeal). To be sure, in Eureka Investment Corp. v. Chicago Title Insurance Co., 743 F.2d 932, 945 n.55 (D.C. Cir. 1984), we treated as part of the record an exhibit never formally moved into evidence in the district court, but we did so because all parties and the district court treated the exhibit as evidence. In this case, by contrast, GW objected to the documents from the first possible moment, and the district court never mentioned them in its denial of Carter's motion for reconsideration, Carter, No. 99-3134 (D.D.C. Aug. 18, 2003).

We therefore grant GW's motion to strike and will disregard the disputed exhibits in the ...


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