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.
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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. § 2000e16(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:
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Although in the past Ms. Chappell-Johnson’s

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
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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 ChappellJohnson’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
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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).
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“[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,
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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 failureto-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
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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 nonAfrican 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
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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.