United States Court of Appeals, District of Columbia Circuit
December 14, 2017
from the United States District Court for the District of
Columbia (No. 1:13-cv-01229)
Williams Rucker argued the cause and filed the briefs for
C. Pfaffenroth, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Jessie K. Liu, U.S.
Attorney, Shanna L. Cronin, Special Assistant U.S. Attorney,
and R. Craig Lawrence, Assistant U.S. Attorney. Derrick W.
Grace, Special Assistant U.S. Attorney, entered an
Before: Griffith, Millett, and Pillard, Circuit Judges.
MILLETT, CIRCUIT JUDGE.
Department of Defense hired Dr. Brett Steele to teach at the
National Defense University's College of International
Security Affairs. During his probationary first year of
instruction, the College decided to terminate his contract.
Dr. Steele filed suit, asserting that his contract was ended
because of his age. The district court granted summary
judgment to the Department of Defense. Because the Department
has failed to provide a consistent and sufficient explanation
for Dr. Steele's discharge, and because Dr. Steele has
come forward with evidence that a supervisor directly
involved in the decisionmaking process made repeated
discriminatory remarks, we reverse the district court's
grant of summary judgment and remand for further proceedings.
applied to the federal government, the Age Discrimination in
Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et
seq., requires that "[a]ll personnel actions
affecting [federal] employees or applicants for employment
who are at least 40 years of age * * * shall be made free
from any discrimination based on age," id.
§ 633a(a). The Act's protection includes employees
in "military departments." Id. Congress
enacted the ADEA to protect older individuals "from
arbitrary and stereotypical employment distinctions[.]"
General Dynamics Land Sys., Inc. v. Cline, 540 U.S.
581, 587 (2004).
establish a disparate treatment claim under the ADEA, a
plaintiff can rely on direct evidence of discriminatory
intent, as well as indirect evidence from which a
discriminatory motive for the employment decision could be
inferred. For the latter, a plaintiff can state a prima
facie case of age discrimination in a termination
decision by coming forward with evidence showing that he (i)
was 40 or older, and so falls within the ADEA's
protective reach; (ii) was otherwise qualified for the
position in which he was working; (iii) was terminated; and
(iv) was replaced by someone younger. Paquin v. Federal
Nat'l Mortgage Ass'n, 119 F.3d 23, 26 (D.C. Cir.
1997); see Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 142 (2000). Once a plaintiff makes
that showing, the burden of production shifts to the employer
to come forward with a "legitimate non-discriminatory
reason" for the discharge. DeJesus v. WP
Company, 841 F.3d 527, 532 (D.C. Cir. 2016). If the
employer does so, the burden-shifting paradigm disappears,
and the "sole remaining issue [i]s discrimination
vel non." Reeves, 530 U.S. at 143
(internal quotation marks and citation omitted). At all
times, the plaintiff bears the burden of proving that age
discrimination occurred. To obtain reinstatement or backpay,
the plaintiff must show that age discrimination was the
but-for cause of the discharge. Gross v. FBL Financial
Servs., Inc., 557 U.S. 167, 177-178 (2009);
Reeves, 530 U.S. at 143. In litigation against
federal governmental defendants under 29 U.S.C. § 633a,
the plaintiff may obtain "declaratory and possibly
injunctive relief" only if he proves that age was
"a factor" in the discharge. Ford v.
Mabus, 629 F.3d 198, 207 (D.C. Cir. 2007).
August 2010, the Department of Defense hired Dr. Brett Steele
to serve as an associate professor at the National Defense
University's College of International Security Affairs.
The College is a Department component that offers educational
programs for professionals on interagency and international
security matters. Dr. Steele was 47 years old when he was
hired. The Department hired him for a three-year term, but
the first year was probationary.
through his probationary year, a dispute arose between Dr.
Steele and his supervisors, including Dean Querine Hanlon and
Dr. Alejandra Bolanos, over Dr. Steele's teaching methods
and curriculum decisions. In particular, the supervisors
expressed concern that he strayed from the required syllabus
and used an "unapproved concept" in teaching one of
his subjects. Steele v. Carter, 192 F.Supp.3d 151,
159 (D.D.C. 2016). Dr. Steele met with Dean Hanlon and Dr.
Bolanos and agreed to bring his instructional methods into
conformity. Within roughly a month, supervisors'
complaints about Dr. Steele's teaching resurfaced, and
led to a "heated" "academic debate"
between Dr. Steele, Dean Hanlon, Dr. Bolanos, and the
College's Chancellor. Id. at 160.
that same time, the College was hit with budgetary cuts.
After its request for a waiver of the funding losses was
denied, the College decided that it would have to terminate
three faculty positions, and that it would choose them only
from among its six probationary faculty. In May 2011, the
College made the decision to terminate Dr. Steele, Dr. Art
Westneat, and Seth Malaguerra, effective three months later
at the end of the summer semester. According to Dr. Steele,
he was never informed of the reason for his termination. Dr.
Steele later resigned on the eve of his termination date to
avoid "getting the horrible black mark of being
terminated from a Government position" and in the hope
of obtaining other employment opportunities in the future.
to evidence put forward by Dr. Steele, Dr. Bolanos had made
comments directly to him stating that young colleagues
"are such a breath of fresh air," "eager to
please," and the "kind of * * * people who are
making [the College] marvelous," while older employees
are "stubborn" and "difficult to work
with." J.A. 264, 881. Dr. Steele further alleged that
Dr. Bolanos told him that the College had become "much
better" because "all these younger people"
were hired. J.A. 173. ...