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 United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 8, 2008 Decided November 21, 2008

No. 07-7165

CHARLES ROYALL,

APPELLANT

v.

NATIONAL ASSOCIATION OF LETTER CARRIERS, AFL-CIO,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 05cv01711)

Thomas J. Gagliardo argued the cause and filed the briefs

for appellant.

Peter Herman argued the cause for appellee. With him on

the brief were Oriana Vigliotti and Victoria L. Bor.

Before: HENDERSON and ROGERS, Circuit Judges and

RANDOLPH, Senior Circuit Judge.
2

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: This is an appeal from the grant of

summary judgment in an employment discrimination case filed

pursuant to 42 U.S.C. § 1981. As a threshold matter, the

National Association of Letter Carriers (“the Union”) contends

that the court lacks jurisdiction because the appeal is untimely.

Although the notice of appeal was not timely docketed in the

district court, we hold that the appeal is timely because the

notice of appeal was electronically filed within the thirty-day

period for appeals in a civil case. Under the federal rules of civil

and appellate procedure, the district court electronic filing

system’s failure to docket the notice within that period is not

attributable to Royall. On the merits, we hold that the grant of

summary judgment was appropriate because there was no

evidence from which a reasonable jury could find that the

Union’s reason for terminating Charles Royall’s employment

was a pretext for unlawful discrimination.

I.

In February 2002, the Union hired Royall, an African

American, as an accounting manager. His responsibilities

included handling payroll and the associated deductions and

benefits, entering vendor bills into the accounting system, and

ensuring that the Union paid its bills and taxes on time.

According to Union President William Young and the SecretaryTreasurer Jane Broendel, Royall indicated during his

employment interview that “he was familiar” with the J.D.

Edwards accounting program that the Union used, and that “he

was a quick study, and he would be right up and running with

it.” Young Dep. at 28; see Broendel Dep. at 13.

From the Union’s perspective, Royall’s performance did not

meet expectations. According to Young, Royall “never did
3

grasp [the] J.D. Edwards [system],” and, as a result, failed to

make entries into the system that would have allowed the W-2

forms to be generated automatically. Young Dep. at 28. He

based his opinion on what Broendel and finance director Ronald

Stubblefield told him and on what he personally knew. Sukja

Neidlinger, the payroll clerk, reported that it took Royall two

months to learn basic payroll. Other Union employees also

noted inadequacies in Royall’s performance, including paying

bills, taxes, and employees’ benefits late. The Union incurred

penalties because of the late tax payments during Royall’s

tenure. Several Union officers, including Young and Broendel,

received complaints about these late payments from employees

and vendors; they also received complaints about Royall’s

performance from other employees. Broendel was of the view

that the only satisfactory elements of Royall’s performance were

that he arrived on time, did not leave early, and did not call in

sick excessively. 

Frank Sclafani, a temporary employee who later became the

finance director, documented some of the inadequacies in

Royall’s performance in an undated memorandum to Broendel

about the accounting department generally. While observing

that there were “always two sides to every story,” Sclafani

advised that Royall’s accounting abilities were “suspect” and

that “unless actively supervised [Royall’s work] is often

incomplete or not timely, and in too many cases, inaccurate.”

Royall also did not demonstrate a willingness to take on or

complete the tasks assigned to him, causing the finance director

over time to rely on him less and less. In Sclafani’s opinion,

Royall’s lack of ability would continue to have “a major

detrimental effect on the work flow in the department.” Sclafani

also pointed out that while the J.D. Edwards system was “very

versatile,” its database was neither intuitive nor were the day-today accounting processes easy to learn, and the system required

a “highly proficient user to harness [its] power and make the
4

database a useful accounting tool.”

Disputing the evidence about his performance, Royall

claimed that he had been complimented on his satisfactory

performance on several occasions. He pointed out that his

position had been vacant for six months and that he had caught

up on the bonds, made deposits for taxes and payroll on time,

eliminated insurance premium payments for people who had

died, and completed Neidlinger’s payroll while she was on

vacation. Stubblefield complimented him for getting current on

the bonds, as had Broendel, who had never criticized him

despite almost daily interaction, and Royall was unaware that

Neidlinger had any “problems” with him. In fact, prior to his

termination, Royall had never been disciplined for the alleged

inadequacies in his performance. Further, Royall pointed out

that various of the errors the Union officers had described took

place several months before his termination. Additionally, he

claimed that he knew nothing about the J.D. Edwards system

before he started working for the Union. Critically, however,

Royall did not deny that on two occasions he had paid the

Union’s taxes late and paid employee benefit claims late. He

also acknowledged that there were other complaints about his

work but attributed some of the problems to matters that were

his supervisor’s responsibility. 

Upon discussing Royall’s performance with Stubblefield

and Broendel, Young fired Royall six months after he was hired.

According to Young, “the only reason Royall’s employment was

terminated is he was not able to do all of the functions of the

position that he was hired to do, and we couldn’t get the finance

department in order without someone who was able to do the

things that he was supposed to do.” Young Dep. at 50.

Royall filed suit against the Union on the ground that he

was terminated because of his race in violation of § 1981. He
5

alleged that he had performed his duties in an acceptable

manner, that claims he was not doing his job were false, and that

he was replaced by a white male who was allowed to return to

his former position after a few months of inadequate

performance. He alleged as well that the Union terminated the

employment of another African American male, Stubblefield,

after Royall’s discharge because he “ostensibly ‘didn’t fit in.’”

Compl. ¶ 12. The Union answered and then moved for

summary judgment, which Royall opposed. The district court

granted the Union’s motion and Royall appeals. 

II. 

The Federal Rules of Appellate Procedure require a notice

of appeal in a civil case to be filed within thirty days of entry of

the judgment or order being appealed. FED. R. APP. P. 4(a)(1).

This time period is jurisdictional and mandatory. Bowles v.

Russell, 127 S. Ct. 2360, 2363-64 (2007); see 28 U.S.C. § 2107.

A notice’s improper form does not require dismissal of the

appeal. Under Rule 83(a)(2) of the Federal Rules of Civil

Procedure, “[a] local rule imposing a requirement of form must

not be enforced in a way that causes a party to lose any right

because of a nonwillful failure to comply.” Likewise, Rule

5(d)(4) provides that “[t]he clerk must not refuse to file a paper

solely because it is not in the form prescribed by these rules or

by a local rule or practice.” FED. R. CIV. P. 5(d)(4). Relatedly,

Federal Rule of Appellate Procedure 3(c)(4) bars dismissal of an

appeal because of the notice of appeal’s “informality of form or

title.”

The local rules of the United States District Court for the

District of Columbia require all documents to be submitted

electronically. D.D.C. R. 5.4(a). The clerk of the district court,

however, has issued general information stating that a notice of

appeal “cannot be filed by an attorney using the CM/ECF
6

1

 United States District Court for the District of Columbia,

Clerk’s Office General Information & Civil Filing Procedures 11

(Apr. 9, 2006), available at

www.dcd.uscourts.gov/LocalRulesSupplement.pdf; United States

District Court for the District of Columbia, Civil ECF Filing Pointers

3, available at http://www.dcd.uscourts.gov/civil-newfilingptrs.pdf

(same); see also United States District Court for the District of

Columbia, Checklist for Attorneys Using the Electronic Filing System

1, available at http://www.dcd.uscourts.gov/attycheckofflist.pdf.

2 United States District Court for the District of Columbia,

How to File a Notice of Appeal and Pay the Filing Fee Online,

available at

http://www.dcd.uscourts.gov/NoticeAppeal-PayFeeOnline.pdf. The

clerk’s online guidance documents, supra note 1, have yet to be

updated.

system.”1 More recently, the clerk has issued instructions for

online filing of notices of appeal.2 The Union does not suggest

that Royall’s appeal is untimely because of noncompliance with

the requirement of the local rule to submit a paper copy of the

notice of appeal when filing it electronically and we have no

occasion to address this issue. 

The relevant events are undisputed except insofar as the

Union challenges Royall’s claim that his appeal was

successfully filed. 

On September 26, 2007, Royall, by and through

counsel, filed a notice of appeal using the District

Court’s electronic case filing system . . . and opposing

counsel were served with copies by mail. As part of

the ECF process a credit card number and related

information [were] submitted so that the required fees

could be paid. That same day Royall’s counsel

received electronic confirmation from the Court that
7

the fee had been charged to his credit card. 

Sometime in October 2007 Royall’s counsel called

the clerk of this Court to inquire about filing a

docketing statement and when he might receive a

scheduling order. The clerk informed him that the

record had not yet been transmitted; and that when it

was he would be notified.

On November 21, 2007, Royall’s counsel again

contacted the clerk of this Court and when informed

that the record had still not been transmitted, he

contacted the District Court. It was during that

telephone conversation that counsel was informed that

the District Court had not docketed the notice of appeal

which had been filed almost two months earlier. He

immediately sent a letter to the clerk by facsimile

transmission, attaching thereto a copy of the notice of

appeal and his credit card statement showing that he

had been charged $455 by “USDC DC

WASHINGTON DC” on September 26, 2007. He also

related that he had spoken with the ECF coordinator on

that day, had been told the system was experiencing a

glitch and later told the system was working properly.

He suggested this might account for the lack of docket

entry.

On or about that same day, the District Court clerk

docketed the notice as of September 26, 2007; and the

record was subsequently transmitted to this Court.

Appellant’s Br. 10 (internal citations omitted).

The filing date on the docket sheet, “09/26/2007,” supports

Royall’s contention that the notice of appeal was timely filed, as
8

does the credit card invoice indicating a September 26, 2007

charge from the district court of $455, the fee for filing a notice

of appeal. A September 26, 2007 filing would be timely

because the thirty-day period began on August 29, 2007, when

the district court granted summary judgment to the Union. 

Without seriously disputing the electronic submission and

receipt date, the Union maintains that the notice was not “filed”

in satisfaction of Rule 4(b) because the clerk (or the clerk’s

computer system) failed to register the filing on the docket sheet

until November 21, 2007 – nearly two months after the deadline.

This argument fails because the date of receipt controls in this

case. The Supreme Court has long recognized that, with

exceptions not relevant here, receipt by the clerk within the

required time period satisfies the timely filing requirement for

a notice of appeal in a civil case, see Houston v. Lack, 487 U.S.

266, 273-74 (1988); Parissi v. Telechron, Inc., 349 U.S. 46, 46

(1955) (mem.). This court has similarly held, although not in

the context of jurisdictional civil notices of appeal, that receipt

by a judge constitutes filing under a rule requiring filing with the

clerk of the court or the judge. United States v. Brown, 921 F.2d

1304, 1309 (D.C. Cir. 1990). Still, relying on Bowles and other

related cases the Union maintains that because the period for

filing a notice of appeal is jurisdictional, the clerk was not

permitted to “backdate” Royall’s notice to September 26. The

Union’s challenge to the timeliness of the appeal fails for three

reasons.

First, because Royall tendered his notice of appeal to the

clerk within the thirty-day filing period, Bowles does not require

dismissal of the appeal. In Bowles, the district court reopened

the time to file an appeal but told Bowles that he had seventeen

days to file rather than the fourteen days provided in the Rule.

Bowles, 127 S. Ct. at 2362. Bowles filed the notice of appeal

after the mandatory and jurisdictional fourteen-day period
9

expired, and the Court held that his notice was filed untimely

and therefore the appeal was barred even though he had filed

within seventeen days. Id. at 2362-66. Thus, Bowles does not

control the question here: whether electronic submission of a

notice of appeal within the thirty-day period satisfies the timely

filing requirement even though the notice of appeal is not

docketed until after that period has expired. However, as

Bowles held that courts may not create equitable exceptions to

jurisdictional requirements, id. at 2366, Royall’s suggestion that

“equitable tolling prohibits dismissal” of the appeal necessarily

fails.

Second, the Union is correct that backdating a late notice

does not render it timely, but that is not what happened here.

The clerk simply deemed the notice filed on the date of Royall’s

electronic submission. Although a litigant is not “entitled to rely

on a court’s mere acceptance and processing of an untimely

notice of appeal,” Moore v. South Carolina Labor Bd., 100 F.3d

162, 164 (D.C. Cir. 1996), the clerk is required to accept and

treat as timely a notice that was timely received even if it was

received in an improper form. FED. R. CIV. P. 5(d)(4). 

Third, under the district court’s local rules, electronic filing

“constitutes filing for all purposes under the Federal Rules of

Civil Procedure and the Local Rules of [the district court],”

D.D.C. R. 5.4(c), and the electronic case filing system is thus a

substitute for the clerk of the court. As the Seventh Circuit

observed, noting Rule 5(e)’s requirement, now located in Rule

5(d)(4), that clerks accept documents tendered for filing, “[t]he

software that operates an e-filing system acts for ‘the clerk’ as

far as Rule 5 is concerned; a step forbidden by a person standing

at a counter is equally forbidden to an automated agent that acts

on the court’s behalf.” Farzana K. v. Indiana Dep’t of Educ.,

473 F.3d 703, 707 (7th Cir. 2007). In a case where the filing

software rejected a complaint that was transmitted electronically
10

3

 In unpublished opinions, two circuits have held that

attempted electronic filings were ineffective because of

noncompliance with local procedures. In Le Williamson v. Deluxe

Fin. Servs., Inc., 216 F. App’x 728 (10th Cir. 2007), the notice of

appeal was sent by electronic mail within the thirty-day filing period

but was directed to the wrong address and local rules required pro se

litigants to make paper filings. Id. at 729. In Stark v. Right Mgmt.

Consultants, 247 F. App’x 855 (8th Cir. 2007), a complaint was

submitted at 11:27 p.m. on the final day of the applicable filing period

but marked with the wrong docket number, that court observed:

[T]he fact remains that the complaint was tendered to

the clerk’s office on the 30th day, and the computer’s

reaction does more to show the limits of some

programmer’s imagination than to render the suit

untimely. Had a paper copy of the complaint been

handed over the counter on July 6, a deputy clerk

would have crossed out the old docket number,

stamped a new one, and filed the document; there is no

reason to throw this suit out of court just because the efiling system did not know how to take an equivalent

step.

Id. Likewise, as the Second Circuit has recognized, Contino v.

United States, 535 F.3d 553, 556 (2d Cir. 2008), even in the

context of mandatory and jurisdictional civil notices of appeal,

electronic submission of a notice of appeal during the filing

period constitutes timely filing even if the electronic case filing

system rejects the submission. The Ninth Circuit also held

recently that an appeal was timely because the clerk received a

hard copy of the notice of appeal within the filing period, even

though local rules required electronic filing. Klemm v. Astrue,

No. 06-16981, 2008 WL 4210589, at *2-3 (9th Cir. Sep. 16,

2006).3
11

but local rules required new cases that were filed electronically to be

submitted by 5:00 p.m. Id. at 856. The Tenth Circuit did not address

Federal Rule of Civil Procedure 83(a)(2) and the Eighth Circuit

deemed the local timing requirement not to be a matter of “form”

under Rule 83(a)(2), id., an issue not presented in the instant case.

Accordingly, we hold that, pursuant to the federal rules, the

electronic case filing system’s failure to docket Royall’s timely

submitted notice of appeal cannot be treated as a failure on his

part to file timely. His situation is akin to one in which the

clerk’s office misplaces a filing and then later makes the docket

entry when the filing is found. Where, as here, a notice of

appeal is tendered to the clerk within the filing period, “any

error regarding the filing of his notice of appeal must be charged

to the court, not to him.” Baney v. Dep’t of Justice, 263 F.

App’x 892, 894 (Fed. Cir. 2008) (unpublished); see also

Phoenix Global Ventures, LLC v. Phoenix Hotel Assocs., 422

F.3d 72, 76 (2d Cir. 2005). Because Royall’s notice of appeal

was timely filed, the court has jurisdiction and we turn to the

merits of his appeal.

III.

Summary judgment is appropriate when there is no genuine

issue of material fact and the “the moving party is entitled to

judgment as a matter of law.” Holcomb v. Powell, 433 F.3d 889,

895 (D.C. Cir. 2006) (quoting FED. R. CIV. P. 56(c)) (internal

quotation marks omitted). A court must “view the evidence in

the light most favorable” to the nonmoving party and “draw all

reasonable inferences in [his] favor.” Id. A court may not make

credibility determinations. Id. Our review of the grant of

summary judgment is de novo. Id. 

The burden-shifting framework set out in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), applies to § 1981
12

employment discrimination claims where, as here, there is no

direct evidence that prohibited discrimination caused the adverse

employment action. Carter v. George Washington Univ., 387

F.3d 872, 878 (D.C. Cir. 2004). The plaintiff must first establish

a prima facie case of racial discrimination, Chappell-Johnson v.

Powell, 440 F.3d 484, 487 (D.C. Cir. 2006), by showing that

“(1) [he] is a member of a protected class; (2) [he] suffered an

adverse employment action; and (3) the unfavorable action gives

rise to an inference of discrimination,” id. at 488. The burden of

production then shifts to the employer to articulate a “legitimate,

nondiscriminatory” justification for the adverse employment

action. McDonnell Douglas, 411 U.S. at 802. Where an

employer offers “clear and reasonably specific”

nondiscriminatory reasons for the adverse employment action,

Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 258

(1981), the court need not decide whether the plaintiff has made

out a prima facie case, and “proceed[s] to ‘the ultimate question

of discrimination vel non.’” George v. Leavitt, 407 F.3d 405,

411 (D.C. Cir. 2005); see also U.S. Postal Serv. Bd. of

Governors v. Aikens, 460 U.S. 711, 715 (1983). 

Once the employer offers this justification, the burden of

production shifts back to the plaintiff, “the McDonnell Douglas

framework falls away, and we must determine whether a

reasonable jury ‘could infer discrimination’” based on the prima

facie case, the plaintiff’s challenge to the employer’s proffered

justification, and any other evidence of discrimination. Vickers

v. Powell, 493 F.3d 186, 195 (D.C. Cir. 2007) (quoting Aka v.

Wash. Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998) (en

banc)). A plaintiff, who retains the burden of persuasion

throughout, Burdine, 450 U.S. at 253, may show pretext in a

number of ways, including by offering evidence of more

favorable treatment of similarly situated persons who are not

members of the protected class or that the employer is lying

about the proffered justification. See Brady v. Office of the
13

Sergeant at Arms, 520 F.3d 490, 495 (D.C. Cir. 2008). Under

the latter approach, “[i]f the employer’s stated belief about the

underlying facts is reasonable in light of the evidence . . . there

ordinarily is no basis for permitting a jury to conclude that the

employer is lying about the underlying facts.” Id.; see also

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148

(2000). 

Here, the Union has articulated a legitimate

nondiscriminatory justification for terminating Royall’s

employment, namely “a steady drumbeat of complaints about

Royall’s job performance.” Appellee’s Br. 19. Among other

evidence, the testimony about Royall paying payroll taxes late,

improperly entering W-2 information into the accounting

software system, making the Union officers’ benefit payments

late, and experiencing difficulties learning the accounting

system substantiate the inadequate performance justification.

The Union presented documentary evidence of the late tax

payments and consequent penalties. Although the Union failed

to produce documentary evidence to substantiate its other

reasons for terminating Royall, explaining that some of the

documents had been misplaced, the Union officers’ sworn

depositions and the documentary evidence regarding the late tax

payments suffice to meet the Union’s burden “to produce

admissible evidence that, if believed, would establish that [its]

action was motivated by a legitimate, nondiscriminatory

reason.” Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139,

1151 (D.C. Cir. 2004). The testimonial evidence is admissible,

and Royall’s contention that sworn deposition statements

recounting complaints is hearsay fails because the Union

officers’ statements were offered “to illuminate their motives

and actions as supervisors,” not to show that the complaints

were valid, McKenna v. Weinberger, 729 F.2d 783, 792 (D.C.

Cir. 1984); see FED. R. EVID. 801(c). Therefore, the court need

not decide whether Royall made a prima facie case before
14

assessing the question of discrimination vel non. See Aikens,

460 U.S. at 714. However, the evidence Royall presented in

making his prima facie case remains relevant for determining

whether the proffered reason was the true reason or mere pretext

for discrimination. St. Mary’s Honor Ctr. v. Hicks, 509 U.S.

502, 508 (1993). 

One way to discredit an employer’s justification is to show

that similarly situated employees of a different race received

more favorable treatment. See Brady, 520 F.3d at 495. To that

end, Royall contends that he was treated more harshly than his

underperforming white replacement. The Union allowed

Royall’s replacement to transfer to another Union position after

his performance did not meet expectations, but fired Royall.

Although the two men may have been similarly situated to the

extent that they held the same position, Royall has not shown

that “all of the relevant aspects of [his] employment were

‘nearly identical’ to those of” his replacement, see Neuren v.

Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507, 1514 (D.C.

Cir. 1995) (quoting Pierce v. Commonwealth Life Ins. Co., 40

F.3d 796, 802 (6th Cir. 1994)). Royall’s employment was

terminated after six months while his replacement volunteered

to transfer back to his prior position with the Union after two

months when he was unable to meet job requirements. Royall

was a new, at-will hire; his replacement was previously

employed by the Union. There is no evidence to show that the

Union would not have granted a transfer request by Royall or

would not have fired Royall’s replacement after six months had

he not earlier voluntarily transferred. Therefore, that the Union

fired Royall but granted his replacement’s transfer request does

not demonstrate unlawful discrimination.

Also relevant to the discrimination vel non inquiry is

Royall’s contention that the Union’s proffered reasons for

terminating his employment are unpersuasive. See Brady, 520
15

F.3d at 495. Royall casts doubt upon several of the examples

the Union employees gave in justifying their belief that he was

not performing his job adequately. For instance, the Union

maintains that Royall failed to make certain required cost-ofliving adjustments, but Royall responds that these adjustments

were his supervisor’s responsibility, not his. Likewise, although

the Union blames Royall for leaving payroll checks unsecured,

Royall responds that his supervisor was responsible for securing

the checks and his possession of any checks would have

conflicted with Generally Accepted Accounting Principles.

Royall also challenges the payroll clerk’s statement that it took

Royall two months to learn basic payroll by pointing to the

clerk’s sworn deposition statement that she had not worked with

him every day over those two months. As to the documented

late tax payments, Royall asserts that these incidents took place

several months before his termination, indicating that they were

not the true reason for his discharge. These challenges weaken

but do not fully undermine the Union’s proffered justification

for terminating Royall’s employment.

Royall does not dispute some of the Union’s stated reasons

for his termination that alone could have been sufficient

nondiscriminatory grounds for terminating an at-will employee.

For example, although Royall maintains that he was not

responsible for all of the Union’s late tax payments and

penalties, he does not challenge the Union’s documented

showing that there were two late payroll tax payments during his

tenure, resulting in penalties. Royall also does not deny that

Young received two or three complaints that the Union had not

paid officers’ benefits, but simply responds that there is no

evidence of these complaints other than Young’s deposition

statement and that Young’s statements are inadmissible hearsay.

However, Young’s testimony about the complaints is

admissible to show his reasons, not their truth. There are several

other allegations that Royall does not deny, but rather criticizes
16

for being unsupported by documentary evidence. For instance,

Royall does not respond to items 35 and 36 in the Union’s

statement of undisputed material facts that employees

complained about payroll responsibilities that had been carried

out untimely. In light of this evidence, the Union’s stated belief

about Royall’s performance deficiencies was reasonable.

On appeal Royall does not contend that his deposition

testimony about several incidents of racial discrimination was

evidence of unlawful discrimination. Neither does he contend

that the district court erred in ruling that he had conceded the

issue insofar as he did not refer to this evidence in opposing the

Union’s motion for summary judgment, see D.D.C. R. 7(b).

Any arguments based on this testimony are therefore forfeited.

See Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir.

2005). 

Given the consistent testimony by several Union officers

that they received complaints about Royall’s work and the

undisputed evidence that at least two tax payments for which he

was responsible were late, a reasonable jury could not find that

the Union’s officers were lying, much less that the Union’s

“stated belief about the underlying facts is [un]reasonable in

light of the evidence.” Brady, 520 F.3d at 495; see also George,

407 F.3d at 415. Other than evidence that he and his African

American supervisor were replaced by white employees, Royall

provides no evidence of unlawful discrimination that the court

may properly consider. It is thus unnecessary to consider the

Union’s further suggestion that the fact that Young participated

in both the decision to hire and to terminate Royall’s

employment is further evidence that its termination decision was

not discriminatory. Accordingly, we affirm the grant of

summary judgment.