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Steele v. Mattis

United States Court of Appeals, District of Columbia Circuit

August 10, 2018

Brett Steele, Appellant
James Mattis, Secretary of Defense, Appellee

          Argued December 14, 2017

          Appeal from the United States District Court for the District of Columbia (No. 1:13-cv-01229)

          Donna Williams Rucker argued the cause and filed the briefs for appellant.

          Peter 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 appearance.

          Before: Griffith, Millett, and Pillard, Circuit Judges.



         The 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.



         As 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).

         To 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).


         In 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.

         Halfway 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.

         Around 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. J.A. 729.

         According 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. ...

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