Brett Steele v. James Mattis , 899 F.3d 943 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 14, 2017 Decided August 10, 2018
No. 16-5236
BRETT STEELE,
APPELLANT
v.
JAMES MATTIS, SECRETARY OF DEFENSE,
APPELLEE
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.
Opinion for the Court filed by Circuit Judge MILLETT.
2
MILLETT, Circuit Judge: 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.
I
A
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
3
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).
B
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
4
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]
5
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. Dr. Bolanos denied making those statements.
Steele, 192 F. Supp. 3d at 165.
During the Fall semester, three other faculty members took
over Dr. Steele’s teaching responsibilities. One of them was
under 40 years of age at the time; the other two were over 40.
Shortly after his termination, the College hired two new
associate professors, both of whom were under the age of 40.
They each taught different subjects than Dr. Steele had.
Within a year of Dr. Steele’s discharge, the College brought on
board a third younger professor who took over the teaching of
most of Dr. Steele’s courses. J.A. 171–172, 798.
C
In July 2011, Dr. Steele filed an informal equal
employment opportunity complaint with the Department
alleging that he was being improperly terminated because of
his age. When that complaint was not resolved favorably, Dr.
Steele filed a formal complaint with the Department of
Defense’s equal employment opportunity office in November
2011. Eighteen months later, the Department denied his
complaint.
Dr. Steele then filed suit in the United States District Court
for the District of Columbia, alleging unlawful age
discrimination, retaliation for exercising his statutory rights, a
hostile work environment based on his age, and constructive
discharge, all in violation of the ADEA.
6
The district court granted summary judgment for the
government. The district court first concluded that Dr. Steele
failed to provide any direct evidence of age discrimination,
concluding that the comments Dr. Bolanos made were just
“stray remarks,” and were not relevant because Dr. Bolanos did
not make the actual termination decision. The court also
found insufficient indirect evidence of age discrimination,
concluding that the government had offered a legitimate,
lawful explanation for Dr. Steele’s termination—budgetary
cuts—and that Dr. Steele had failed to show that the
government’s explanation was pretextual. Finally, the district
court dismissed Dr. Steele’s claims of retaliation and hostile
work environment on the ground that they were unsupported
by relevant evidence. 1
II
We have jurisdiction to review the district court’s final
judgment under 28 U.S.C. § 1291. We review the district
court’s grant of summary judgment de novo. On summary
judgment, the court may neither “make credibility
determinations [nor] weigh the evidence.” DeJesus, 841 F.3d
at 531 (quotation marks omitted). Instead, summary judgment
is proper only when, “viewing the evidence in the light most
favorable to [the plaintiff] and drawing all reasonable
inferences accordingly,” “no reasonable jury could find in [the
plaintiff’s] favor.” Evans v. Sibelius, 716 F.3d 617, 619 (D.C.
Cir. 2013).
Looking at the record as a whole, the district court erred in
holding that, as a matter of law, no reasonable jury could
disbelieve the government’s proffered explanation for the
1
Dr. Steele has not challenged the dismissal of his retaliation
or hostile work environment claims on appeal.
7
discharge and rule in Dr. Steele’s favor. Dr. Steele came
forward with evidence both discrediting the government’s
asserted basis for its decision and supporting a reasonable
inference of discriminatory motivation. That is not to say that
Dr. Steele will necessarily prevail. At the summary judgment
stage, we hold only that Dr. Steele has created genuinely
disputed facts that are material to the question of whether age
was the true reason for his discharge. Which side of that
factual dispute is correct is for a jury to decide.
A
The district court held, and the Department does not
dispute, that Dr. Steele made out a prima facie case of age
discrimination. Steele, 192 F. Supp. 3d at 167; Government
Br. at 13. We need not decide whether Dr. Steele adequately
made out a prima facie case because the Department proffered
a legitimate nondiscriminatory reason for the termination—the
required budget cuts. If credited by a jury, the termination of
a government employee based on budgetary constraints can
qualify as a legitimate, nondiscriminatory reason for a
discharge. Durant v. District of Columbia Government, 875
F.3d 685, 698–699 (D.C. Cir. 2017); see Samii v. Billington,
195 F.3d 1, 3 (D.C. Cir. 1999) (same, for other types of adverse
personnel actions). Dr. Steele, for his part, does not dispute
that budget cuts were afoot, and acknowledges that the
continuation of his position was predicated on adequate
funding.
Given that the government met its burden of coming
forward with a nondiscriminatory reason for the discharge, we
“skip ahead to the third step in the test” and ask whether the
plaintiff has come forward with a sufficient evidentiary basis
on which a reasonable juror could find that age discrimination
caused or was a factor in the discharge. Wheeler v.
8
Georgetown Univ. Hosp., 812 F.3d 1109, 1114 (D.C. Cir.
2016); Ford, 629 F.3d at 207 (noting that “a factor” standard
applies to declaratory and perhaps injunctive relief against
federal governmental defendants). Indeed, under those
circumstances, the district court “need not—and should not—
decide whether the plaintiff actually made out a prima facie
case[.]” Wheeler, 812 F.3d at 1114 (quoting Brady v. Office
of the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008)).
The exclusive focus of the analysis is “discrimination vel non.”
Reeves, 530 U.S. at 143 (internal quotation marks and citation
omitted). To be sure, the evidence that the plaintiff gathered
in support of his prima facie case, and reasonable inferences
drawn from it, may still be considered in evaluating whether
the summary judgment standard has been met. But the legal
question of whether a prima facie case was made out is no
longer relevant. Id.
B
When confronted with evidence of a legitimate
nondiscriminatory reason for the employer’s challenged action,
the plaintiff, as part of his ultimate burden of persuasion, must
come forward with evidence that would allow a jury to credit
his evidence of age discrimination and discredit the employer’s
seemingly nondiscriminatory motivation. That may be done
either “indirectly by showing the employer’s reason is
pretextual or directly by showing that it was more likely than
not that the employer was motivated by discrimination.”
Forman v. Small, 271 F.3d 285, 292 (D.C. Cir. 2001); see
Reeves, 530 U.S. at 143. Dr. Steele came forward with
substantial evidence that undermined as pretextual the
government’s asserted explanation for his termination and that
could allow a reasonable jury to find that age was the but-for
cause of his discharge.
9
First, the district court committed legal error at the outset
by holding that the College was “to be given heightened
deference,” so that Dr. Steele faced an “even heavier burden of
showing pretext than usual.” Steele, 192 F. Supp. 3d at 168.
In the absence of a determination that the case involves a
distinctly academic judgment of the type for which courts have
found deference warranted, nothing in the ADEA supports the
automatic imposition of a heightened pretext burden just
because the defendant is an academic institution.
Deference may well be appropriate when the question
before the court turns on the merits of an academic
disagreement or a plaintiff’s substantive qualifications for the
position. See, e.g., Fisher v. University of Texas, 136 S. Ct.
2198, 2208 (2016) (“some” judicial deference owed to
academic judgment about the benefits of diversity in the
educational setting); Regents of Univ. of Michigan v. Ewing¸
474 U.S. 214, 225 (1985) (where plaintiff did not allege any
“nonacademic or constitutionally impermissible reasons for
expelling” him, court was reluctant to second-guess the
University’s “genuinely academic decision” evaluating the
student’s “academic career”); Board of Curators, Univ. of Mo.
v. Horowitz, 435 U.S. 78, 89–90 (1978) (Due Process Clause
does not require a hearing to review “[a]cademic evaluations”
and judgments about whether a student met academic standards
before dismissal from an educational institution); Zahorik v.
Cornell Univ., 729 F.2d 85, 92-93 (2d Cir. 1984) (noting need
for deference to substantive judgments about academic
performance in “tenure” decisions).
It is not clear that the College in this case rested its
termination decision on such a “genuinely academic decision.”
Ewing, 474 U.S at 225. The College has not argued that its
decision to terminate Dr. Steele’s contract was rooted in the
type of substantive academic evaluation of his scholarship that
10
courts are ill-equipped to second guess. The College’s central
position, instead, has been that Steele was terminated for
budgetary reasons or, perhaps, deviations from a prescribed
syllabus by a contract employee. But even if we were to give
some degree of deference to the College’s decision about who
was best qualified to teach the courses it had determined best
fit its “mission needs,” Government Br. at 10, Dr. Steele has
produced enough evidence to create a triable issue of fact that
age played a role in his termination.
Second, a reasonable juror could disbelieve the College’s
stated budgetary rationale because it was both insufficient and
inconsistent. It was insufficient because, while the budget
reductions seemingly necessitated the termination of three
faculty members, that does not explain why Dr. Steele was one
of those whose job was chosen for the chopping block. In
other words, the College came forward with a legitimate,
nondiscriminatory rationale for firing someone, but not for
firing Dr. Steele rather than another probationary faculty
member.
In the absence of an individualized explanation for why or
how Dr. Steele was chosen, jurors could sensibly conclude that
the College’s story comes up short. To jurors, the College’s
proffered rationale could ring especially hollow when
combined with the refusal of the Dean and other supervisors to
tell Dr. Steele at the time of his termination why he had been
targeted. See J.A. 153, 255, 607–608, 747. If the budget
made the College do it, why hide that reason from Dr. Steele?
What is more, Dr. Steele identified two probationary
employees who were substantially younger than he was—Hans
Ucko and Paul Miller—who were untouched by the budget
cuts. While, as the district court noted, Ucko and Miller had
different backgrounds and experience than Dr. Steele, Steele,
11
192 F. Supp. 3d at 171–172, that is to be expected in a faculty
teaching a variety of subjects. The College does not dispute
that Dr. Steele himself brought his own special experience and
skills to bear, so much so that the College had pursued him for
years and had an “urgent need” for the strategic thought course
he taught. J.A. 707; id. (“[T]hey desperately needed to get this
course taught[.]”); id. at 707–708 (Dr. Steele “rejected the
offer” first proposed to him, and the College then returned with
“another job offer”); id at 74–75 (same); id. at 708–709 (Dr.
Steele was told he was hired because of his “substantive
engineering background,” his ability to “do a better job in
appealing to [] students” given his particular background, and
thus accordingly was instructed to use his “full creative powers
as an engineer and [and his] experience and insights into the
mindset of engineers” to appeal to those students).
In addition, the record shows that “[l]ast minute reductions
across [the College] enabled the hiring of two faculty
members” who were significantly younger than Dr. Steele, and
well under 40 years of age. J.A. 146. On top of all that, the
instructor later selected to teach most of the courses Dr. Steele
had taught was also materially younger than Dr. Steele. J.A.
171–172, 798.
The College was also inconsistent in its explanations.
While officials kept their lips sealed at the time of the discharge
decision, during the equal employment opportunity grievance
process, evidence surfaced indicating that Dr. Steele might
have been fired because of his performance, not due to budget
cuts. The Chancellor referred to Dr. Steele as a “very
irresponsible professor,” Steele, 192 F. Supp. 3d at 173, and
there was no dispute that there had been contentious and heated
debates about his teaching methods shortly before his
discharge, id. at 160; see also J.A. 149–150, 207–208. Dr.
Bolanos added that “a decision [was] made that maybe [Dr.
12
Steele] was possibly not the best match for the organization.”
Steele, 192 F. Supp. 3d at 173.
Given all of that, a reasonable jury could conclude that the
College’s explanation for Dr. Steele’s termination has been a
moving target, evolving from unexplained silence, to
performance-based complaints, to an insistence that the budget
and definitely not Dr. Steele’s performance issues drove the
decision, even though the budget cuts alone cannot explain why
Dr. Steele himself was fired. 2 Those inconsistencies and
insufficiencies, especially when combined with Dr. Steele’s
replacement by a younger worker, could spark reasonable
disbelief.
Third, on top of the variability in explanations for the
termination, Dr. Steele came forward with direct evidence of
age discrimination on the part of a potentially influential
participant in the termination decision. Dr. Steele alleges that
his first-level supervisor, Dr. Bolanos made a number of
statements disparaging older workers and favoring younger
ones. Specifically, according to Dr. Steele, Dr. Bolanos told
him that older employees are “stubborn,” “difficult to work
with,” and “cantankerous.” J.A. 259, 264, 709. Dr. Bolanos
also allegedly “pointed to a particular older person as a case
study in why it’s not good to have lots of older employees at
[the College].” J.A. 261. At the same time, Dr. Bolanos
effused that “young people are such a breath of fresh air,”
“eager to please,” “work hard,” are “enthusiastic,” and are the
“kind of young people who are making [the College]
marvelous.” J.A. 264, 709. Dr. Bolanos also told Dr. Steele
that the College had become “much better” because “all these
2
By page 31 of its brief in this court, the Department has come
to describe the termination decision as based on both “budgetary
considerations and the qualifications of the competing candidates.”
13
younger people” were hired. J.A. 173. To be sure, Dr.
Bolanos denied making those statements. J.A. 882. But at
the summary judgment stage, that “he said, she said” credibility
determination must be resolved in favor of Dr. Steele. So we,
like the district court, assume that Dr. Bolanos made those
statements for purposes of resolving this appeal. See Steele,
192 F. Supp. 3d at 164; see also Chenari v. George Washington
Univ. Hospital, 847 F.3d 740, 747 (D.C. Cir. 2017); Johnson v.
Perez, 823 F.3d 701, 710 (D.C. Cir. 2016).
The College backhands those comments as “stray
remark[s]” and “unrelated” to Dr. Steele’s termination because
Dr. Bolanos did not have a “role in making the removal
decision.” Government Br. at 31. The district court agreed.
Steele, 192 F. Supp. 3d at 166. That was wrong on both fronts.
To start, the law is settled that an employer’s liability for
the discriminatory acts of its agents goes beyond the final
decisionmaker—the person actually making the hiring or firing
decision. The actions of a discriminatory supervisor that feed
into and causally influence the decisionmaker’s ultimate
determination may also be the proximate cause of an adverse
employment action. Staub v. Proctor Hospital, 562 U.S. 411,
419–423 (2011); see id. at 422 (“[I]f a supervisor” acting
within the scope of employment “performs an act motivated by
[discriminatory] animus that is intended by the supervisor to
cause an adverse employment action, and if that act is a
proximate cause of the ultimate employment action, then the
14
employer is liable[.]”). 3 This is commonly known as the
“cat’s paw” theory of liability. 4
Dr. Bolanos was Dr. Steele’s immediate supervisor, J.A.
13, and admits to being present at the meeting and “in those
discussions” where the decision to terminate Dr. Steele was
made. J.A. 745 (Dr. Bolanos testifying that “there was
feedback given to my leadership * * * with several concerns”
about Dr. Steele, “and at some point, there was a decision made
that maybe Dr. Steele was possibly not the best match for the
organization. I basically was present in those discussions.”).
Dr. Bolanos went on to acknowledge that, regarding Dr.
Steele’s termination, she “was involved, not necessarily in
decision, but yes, in discussion of issues that may be connected
to that, yes.” Id. Because Dr. Bolanos was the front-line
supervisor and was “in the discussions” and meetings about
3
See also Forman, 271 F.3d at 293 (holding in ADEA case that,
when “those who have input into the [employment] decision []
express such discriminatory feelings around the relevant time in
regard to the adverse employment action complained of, then it may
be possible to infer that the decision makers were influenced by those
feelings in making their decisions”) (citation omitted); see also
Walker v. Johnson, 798 F.3d 1085, 1095 (D.C. Cir. 2015) (A
“supervisor’s biased report may remain a causal factor” if the
“ultimate decision maker[]” takes it into account.) (quotation marks
omitted).
4
The phrase “cat’s paw” derives from an Aesop fable in which
“a monkey induces a cat by flattery to extract roasting chestnuts from
the fire” and, “[a]fter the cat has done so, burning its paws in the
process, the monkey makes off with the chestnuts and leaves the cat
with nothing.” Staub, 562 U.S. at 415 n.1. A person motivated by
proscribed bias, who has decisive input into an adverse employment
action, is the monkey behind the paw of the ultimate decisionmaker
that does the deed.
15
termination, id., the summary judgment record raised a
material factual dispute about cat’s paw causation concerning
Dr. Steele’s termination.
Nor can Dr. Bolanos’s offensive remarks about older
workers be brushed off as “stray” and immaterial. Quite the
opposite, a few months before the first adverse reports on Dr.
Steele’s work, Dr. Bolanos allegedly gave voice to the very
type of “arbitrary” stereotypes and prejudices about older
workers’ abilities that Congress enacted the ADEA to halt.
See 29 U.S.C. § 621(a)(2) & (b) (Congressional statement of
findings and purpose). Had similar statements been made
about workers based on their race or gender—claiming that
they are “difficult to work with,” and that “it’s not good to have
lots of [them] at [the College]”—the comments no doubt would
have been treated as disturbing and powerful evidence of
discrimination. J.A. 261, 709. So too for the ADEA.
Crediting Dr. Steele’s evidence as true, Dr. Bolanos’s open
hostility to older workers should have been recognized for what
it is—direct evidence of illegal discrimination, not harmless
“stray remark[s].” Steele, 192 F. Supp. 3d at 175.
*****
The question at this procedural juncture is not which of the
competing explanations for Dr. Steele’s termination is correct.
A reasonable jury might well credit the College’s budgetary or
competence rationales if proven, or even find that performance
issues informed the decision of which probationary professors
to let go during the budgetary winnowing. Nor is the question
of whose factual evidence is more credible—Dr. Steele’s or the
College’s—before us. Our task at the summary judgment
stage is more humble than that. We ask only whether, taking
all of the evidence together, it would as a matter of law be
irrational for jurors to disbelieve the College’s assorted
16
rationales and to credit Dr. Steele’s version of events.
Looking at the record as a whole and construing the evidence,
reasonable inferences, and credibility judgments in Dr. Steele’s
favor, we hold that a reasonable jury could credit Dr. Steele’s
version of events given, inter alia, the evidence that Dr. Steele
used to support his prima facie case, the gaps and variations in
the College’s proffered explanation for the firing, Steele’s
ultimate replacement by a younger employee, the hiring of
several other younger faculty members within the same year as
Steele’s budgetary termination, and the comments overtly
hostile to older employees made by Dr. Steele’s front-line
supervisor who was directly involved in discussions about his
termination.
For that reason, we reverse the district court’s grant of
summary judgment and remand for further proceedings
consistent with this opinion.
So ordered.