David DeJesus v. WP Company LLC , 841 F.3d 527 ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 6, 2016 Decided November 15, 2016
No. 15-7126
DAVID DEJESUS,
APPELLANT
v.
WP COMPANY LLC,
DOING BUSINESS AS THE WASHINGTON POST
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-01101)
Mayer Morganroth argued the cause and filed the brief
for Appellant. With him on the brief was Cherie Morganroth.
Jacqueline M. Holmes argued the cause and filed the
brief for Appellee. With her on the brief was Eric S.
Dreiband.
Before: BROWN, SRINIVASAN and WILKINS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge WILKINS.
2
WILKINS, Circuit Judge: Appellant David DeJesus
charges that he was improperly terminated by his employer
WP Company LLC (the Washington Post), in violation of the
following laws: Title VII of the Civil Rights Act of 1964
(Title VII), 42 U.S.C. § 2000e; the Civil Rights Act of 1866
(§ 1981), 42 U.S.C. § 1981; and the Age Discrimination in
Employment Act of 1967 (ADEA), 29 U.S.C. § 621. DeJesus
is African-American and was, at the time of his termination,
fifty-nine years old. The District Court granted summary
judgment in favor of the Washington Post. We reverse and
remand for further proceedings.
I.
For over eighteen years, DeJesus sold ad space in the
Washington Post. In August 2011, he was terminated by his
then-supervisor, Noelle Wainwright.
Wainwright became DeJesus’s supervisor in early 2008.
In three annual appraisals (2008, 2009, and 2010),
Wainwright generally rated DeJesus as “meet[ing] standards.”
J.A. 134, 199, 394. However, DeJesus’s performance varied
by different measures: as the Washington Post concedes, he
“generated significant revenue[] and won numerous awards,”
but he was also rated slightly “below standards” for “getting
results,” “initiating action,” and “managing work.”
Appellee’s Br. at 15-16.
DeJesus alleges that, as compared to his white and under-
forty colleagues, Wainwright treated him in an “edgy” and
“condescending” manner. J.A. 228-29. She also made
remarks that DeJesus interpreted as coded language with
racial undertones, such as describing him as “speaking well.”
Id. Wainwright’s attitude purportedly extended to other
African Americans. An African-American manager felt
Wainwright treated her differently due to her race, and
3
Wainwright “was condescending toward [her] and tried to
order [her] around.” J.A. 961. Another African-American
colleague testified that Wainwright “would not speak to [her],
even if [she] spoke to [Wainwright] first.” J.A. 732.
According to DeJesus, Wainwright was also dismissive of
African-American client representatives: on one occasion, she
dismissively labeled an African-American representative as
“opinionated” and not “a good use of time” to pursue,
although that representative subsequently authorized a
$300,000 media buy. J.A. 230.
Wainwright’s discrimination was, DeJesus alleges,
consistent with a cultural shift at the Washington Post – an
institution replacing its racially diverse and seasoned staff
with a whiter and younger staff. Other employees shared
DeJesus’s perception, testifying that since 2008, “the
management philosophy at the [Washington] Post was
downsizing, attrition, eliminating and replacing older
employees, offering buyouts, and forcing people out,” J.A.
734; “[i]f you were 40+ years old, the [Washington] Post
made sure you were leaving,” J.A. 731; and “the
[Washington] Post was phasing African Americans out too,
across the board, and particularly upper-level positions,” J.A.
732.
According to DeJesus, he was swept up in this shift in
2011, in a series of events that led to his termination. Allstate
Insurance, one of DeJesus’s accounts, purchased a full-page
“blackout” ad about the dangers of texting while driving, in
an effort to influence a bill being debated in Congress.
Allstate’s ad agency, Starcom, wanted to measure the
efficacy of the campaign and asked DeJesus whether the
Washington Post “do[es] any sort of research, like ad recall.”
J.A. 774. The Washington Post had the capacity to conduct a
4
Research and Analysis of Media (RAM) study, which would
measure the extent to which readers could recall the texting-
while-driving ad. Wainwright was on vacation, so DeJesus
consulted with the acting manager on his floor, who advised
him to ensure that Starcom understood the parameters of a
RAM study. DeJesus then communicated with the
Washington Post’s RAM-study coordinator, who confirmed
that such a study, with certain caveats, would be appropriate.
But, the window to conduct such a study was closing.
Consequently, DeJesus ordered the RAM study.
The completed study was delivered to both Wainwright
and DeJesus. After discovering that DeJesus had ordered the
study, Wainwright instructed him to “please communicate
with [her] on these types of requests,” and explained that she
“should have been aware of this before we decided to move
forward.” J.A. 781. After DeJesus apologized, Wainwright
concluded, “No worries. Good story on the results.” J.A.
780.
In the weeks that followed, Wainwright emphasized via
email that DeJesus should deliver the RAM study to the
“client” in person. DeJesus presented the study to Stacy
Sharpe, Allstate’s Vice President of Federal Regulatory
Affairs and the driving force behind the ad campaign.
DeJesus had a good working relationship with Sharpe. In the
past, he had invited Sharpe, who is African-American, to an
event hosted by the Washington Post. Upon learning of the
invitation, Wainwright allegedly remarked that Sharpe was
“not a good fit for the event,” and when DeJesus invited
Wainwright to sit with him and Sharpe, Wainwright declined.
J.A. 557-58.
When Wainwright discovered that DeJesus presented the
RAM study to Sharpe, Wainwright was displeased. DeJesus
5
described her reaction as “explosive,” J.A. 572, but
Wainwright denied raising her voice, J.A. 524. According to
Wainwright, when she instructed DeJesus to present the RAM
study to the “client,” she meant a different Allstate executive,
Karen Hornberger, who had direct authority over the ad
budget. But according to DeJesus, Wainwright never
mentioned Hornberger and “client” typically referred to the
purchasing company, i.e. Allstate, and not any particular
person in that company.
A few days later, DeJesus was informed that he was “no
longer a good fit for The Washington Post” and was offered a
separation package. J.A. 574. He declined that package and
was subsequently terminated on August 3, 2011. In a memo
entitled “Termination of Employment,” Wainwright explained
that DeJesus was being terminated “for willful neglect of duty
and insubordination.” J.A. 368. According to Wainwright,
DeJesus had “ordered a RAM study for a client without
seeking proper authorization from [Wainwright]” and,
subsequently, failed “to follow [her] specific instructions
regarding this already unauthorized RAM study.” Id.
At the time of his termination, DeJesus was covered by a
collective-bargaining agreement between the Washington
Post and the Washington-Baltimore Newspaper Guild.
Pursuant to that agreement, DeJesus grieved his termination
on August 3, 2011, asserting that he “was terminated without
good and sufficient cause.” J.A. 861. The grievance went to
arbitration. After a hearing, the arbitrator concluded that the
Washington Post “failed to prove that the grievant engaged in
‘willful neglect of duty and insubordination[,]’” as defined by
the collective-bargaining agreement, and ordered that DeJesus
be reinstated. J.A. 496.
6
DeJesus filed a Charge of Discrimination with the EEOC
on May 22, 2012. The EEOC issued a Notice of Right to Sue
on April 30, 2013. On July 18, 2013, DeJesus filed his
complaint with the District Court, asserting claims of race and
age discrimination, in violation of Title VII, § 1981, and the
ADEA. The District Court granted summary judgment for the
Washington Post on September 29, 2015. DeJesus v. WP Co.
LLC, 134 F. Supp. 3d 183 (D.D.C. 2015).
II.
We review the District Court’s grant of summary
judgment de novo. Holcomb v. Powell, 433 F.3d 889, 895
(D.C. Cir. 2006). In conducting our analysis, we review “the
record taken as a whole.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Summary judgment is appropriate only if “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a); accord Johnson v. Perez, 823 F.3d 701, 705 (D.C. Cir.
2016).
In making this determination, courts must “view[] the
evidence in the light most favorable to the non-movant and
draw[] all reasonable inferences accordingly.” Wheeler v.
Georgetown Univ. Hosp., 812 F.3d 1109, 1113 (D.C. Cir.
2016). If, even then, “no reasonable jury could reach a
verdict in her favor,” summary judgment is properly granted.
Id. “[W]e are not to make credibility determinations or weigh
the evidence.” Holcomb, 433 F.3d at 895; see also Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (“[A]t the
summary judgment stage the judge’s function is not himself
to weigh the evidence and determine the truth of the matter
but to determine whether there is a genuine issue for trial.”).
7
DeJesus asserts race discrimination in violation of Title
VII and § 1981.1 Title VII makes it unlawful for an employer
“to discharge any individual . . . because of such individual’s
race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-2(a)(1). To prevail, a plaintiff must demonstrate that
race was “a motivating factor” for the termination. 42 U.S.C.
§ 2000e-2(m); Johnson, 823 F.3d at 706. Likewise, “[§] 1981
prohibits private employers from intentionally discriminating
on the basis of race with respect to the ‘benefits, privileges,
terms, and conditions’ of employment.” Ayissi-Etoh v.
Fannie Mae, 712 F.3d 572, 576 (D.C. Cir. 2013) (per curiam)
(quoting 42 U.S.C. § 1981). While Title VII and § 1981 are
different in important ways,2 “facts sufficient to support Title
VII liability [under a theory of intentional race discrimination]
will support § 1981 liability as well.” 6 LEX K. LARSON,
EMPLOYMENT DISCRIMINATION § 101.10, at 101-52 (2d ed.
2007); see also Ayissi-Etoh, 712 F.3d at 576-77 (analyzing a
§ 1981 claim using the same framework as a Title VII claim);
Yancick v. Hanna Steel Corp., 653 F.3d 532, 544 (7th Cir.
1
The record is unclear as to whether DeJesus advanced any theory
of discrimination on the basis of color or national origin. To the
extent he did, his appeal makes no effort to challenge the District
Court’s decision on that basis. Therefore, those arguments are
waived. See Petit v. U.S. Dep’t of Educ., 675 F.3d 769, 779 (D.C.
Cir. 2012) (“[A] party waives its right to challenge a ruling of the
district court if it fails to make that challenge in its opening brief.”).
2
E.g., scope of coverage (§ 1981 does not cover religious or sex
discrimination), the availability of certain theories (§ 1981 is
limited to intentional discrimination), and the types of employers
susceptible to suit (§ 1981 contains no minimum requirement for
the number of people employed by the defendant). See generally
MARK A. ROTHSTEIN ET AL., EMPLOYMENT LAW § 2:40 (5th ed.
2014); 6 LEX K. LARSON, EMPLOYMENT DISCRIMINATION § 101
(2d ed. 2007).
8
2011) (“We analyze § 1981 discrimination claims in the same
manner as claims brought pursuant to Title VII of the Civil
Rights Act.”).
DeJesus also asserts age discrimination in violation of the
ADEA. The ADEA makes it unlawful for an employer “to
discharge any individual . . . because of such individual’s
age.” 29 U.S.C. § 623(a)(1). To prevail, “[a] plaintiff must
prove by a preponderance of the evidence (which may be
direct or circumstantial), that age was the ‘but-for’ cause of
the challenged employer decision.” Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167, 177-78 (2009).
Under all three statutes – Title VII, § 1981, and the
ADEA – plaintiffs seeking to prove disparate treatment
through indirect, circumstantial evidence employ the familiar
burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Ayissi-Etoh, 712 F.3d at 576
(“In Section 1981 and Title VII cases, courts use the same
framework for determining whether unlawful discrimination
occurred.”); Ford v. Mabus, 629 F.3d 198, 201 (D.C. Cir.
2010) (applying the McDonnell Douglas framework to an
ADEA claim). Under this formula, a plaintiff must first
establish a prima facie case of prohibited discrimination.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
142 (2000). The employer must then come forward with a
legitimate, non-discriminatory reason for the challenged
employment decision. Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 254-55 (1981). If the employer meets this
burden, the framework falls away and the court must decide
one ultimate question: “Has the employee produced sufficient
evidence for a reasonable jury to find that the employer’s
asserted non-discriminatory reason was not the actual reason
and that the employer intentionally discriminated against the
9
employee . . . ?” Brady v. Office of Sergeant at Arms, 520
F.3d 490, 494 (D.C. Cir. 2008).
Therefore, our inquiry centers on whether DeJesus
produced sufficient evidence for a reasonable jury to conclude
that the Washington Post’s asserted non-discriminatory reason
for terminating him – “willful neglect of duty and
insubordination” – was not the actual reason,3 and that the
Washington Post intentionally discriminated against DeJesus
on account of his race or age.4
III.
According to the Washington Post, DeJesus was
terminated for “order[ing] a RAM study without seeking
proper authorization” and intentionally failing to present that
3
DeJesus contends the arbitrator’s decision that his termination
violated the collective-bargaining agreement is issue-preclusive and
compels the determination that the Washington Post’s proffered
reason is pretextual. This argument is meritless for multiple
reasons, including the fact that neither discrimination nor any
decisionmaker’s belief was “actually litigated” in the arbitral
proceedings. See Milton S. Kronheim & Co., Inc. v. District of
Columbia, 91 F.3d 193, 197 (D.C. Cir. 1996).
4
The Washington Post made no effort to distance itself or higher-
level decisionmakers from the actions of Wainwright. Even if it
had, such an effort would have been futile because Wainwright’s
actions – as illustrated by the memo entitled “Termination of
Employment” – undisputedly caused and were intended to cause
DeJesus’s termination. See Morris v. McCarthy, 825 F.3d 658,
668-69 (D.C. Cir. 2016) (applying the cat’s-paw theory of
discrimination). Consequently, we treat Wainwright’s actions as
the actions of the Washington Post.
10
study to a particular person. These two acts purportedly
constituted “willful neglect of duty and insubordination.”5
As an initial matter, there may be circumstances when an
employer offers several independent reasons for the
challenged action, and the employee must cast doubt on each
reason to overcome summary judgment. See Russell v. Acme-
Evans Co., 51 F.3d 64, 69-70 (7th Cir. 1995). We are not
presented with such a case. Wainwright’s memo describes
both the unauthorized RAM study request and the failure to
properly deliver the unauthorized study as the same
sin: “willful neglect of duty and insubordination.” At oral
argument, the Washington Post confirmed this
characterization, explaining that, “it’s the two things
together.” In other words, the two grounds for termination are
so “intertwined” that they should be considered as one. See
id. 70.
“[T]he issue is whether [Wainwright] honestly and
reasonably believed” that DeJesus had committed “willful
neglect of duty and insubordination” sufficient to warrant
5
The Washington Post repeatedly mentions, but does not forcefully
press, additional non-discriminatory reasons for DeJesus’s
termination. The memo explaining the basis for termination
vaguely gestures to other “issues regarding [DeJesus’s] work
performance.” But reading the memo as a whole, it is clear that the
principal non-discriminatory reason relied upon by the Washington
Post is “willful neglect of duty and insubordination” related to the
RAM study, and the reference to other issues is an after-thought
residual clause. Indeed, the Washington Post’s General Counsel
and Vice President of Labor Relations confirmed that “absent [the
RAM study] incident[,] . . . [DeJesus] would [not] have been
terminated.” Therefore, we test the Washington Post’s principal
non-discriminatory reason: “willful neglect of duty and
insubordination.”
11
termination. Brady, 520 F.3d at 496. For three reasons, we
think a reasonable jury could conclude she did not.
First, when Wainwright discovered that DeJesus had
ordered the RAM study without her authorization, she
instructed him to clear future requests with her, but reassured
him, “No worries. Good story on the results.” J.A. 574.
DeJesus testified that there was no follow-up conversation.
Such an unperturbed reaction to a purportedly dischargeable
offense, by itself, could cast doubt on the Washington Post’s
proffered reason.
Second, a jury could properly conclude that the
Washington Post’s proffered reason is so unreasonable that it
provokes suspicion of pretext. Once the RAM study was in-
hand, Wainwright repeatedly emphasized via email that
DeJesus should deliver it to the “client” in person. The record
strongly suggests that “client” typically meant “Allstate” as a
business and, therefore, Wainwright’s email instructions were
arguably ambiguous as to the particular Allstate official who
should have received the RAM study. See, e.g., Wainwright
Dep. Tr. at 38:21-22, J.A. 512 (“Q: Who was the
client? A: Allstate.”). Wainwright testified that by “client,”
she meant a particular person, Hornberger, who had authority
over Allstate’s ad budget. DeJesus testified that Wainwright
never mentioned Hornberger.
Notwithstanding the ambiguity of Wainwright’s
instructions, the Washington Post insists it is enough that
Wainwright honestly believed that DeJesus’s failure to
properly deliver the RAM study constituted insubordination.
But Wainwright’s belief must have been both “honest” and
“reasonable.” See Brady, 520 F.3d at 496 (“[T]he issue is
whether the employer honestly and reasonably believed [the
proffered reason for termination].”). To be clear, courts
12
should not evaluate the reasonableness of the employer’s
business decisions, such as whether it made financial sense to
terminate an employee who generated substantial revenue; we
are not “a super-personnel department that reexamines an
entity’s business decisions.” Adeyemi v. District of Columbia,
525 F.3d 1222, 1227 (D.C. Cir. 2008) (citation omitted).
Rather, the factfinder is tasked with evaluating the
reasonableness of the decisionmaker’s belief because honesty
and reasonableness are linked: a belief may be so
unreasonable that a factfinder could suspect it was not
honestly held. Here, where contractual prerequisites for such
an allegation were found in the arbitration not to have been
met, see Alexander v. Gardner-Denver Co., 415 U.S. 36, 60
(1974) (“[A]rbitral decision[s] may be admitted as evidence
and accorded such weight as the court deems appropriate.”),
and the supervisor’s immediate response did not even hint at
any irretrievable misstep, a jury could find Wainwright’s
interpretation of the events – that this was insubordination,
not mere miscommunication – so unreasonable that it
provokes suspicion of mendacity. In other words, the jury
might hear Wainwright’s explanation and think: “she doesn’t
really believe that.”
Third, characterizations contained in Wainwright’s
termination memo offer an account of DeJesus’s actions that a
reasonable jury could find misleading, even mendacious.
Wainwright explained that, rather than present the RAM
study to Hornberger, DeJesus met only “with a local client
contact with no advertising decision-making ability or
budgetary oversight.” J.A. 368. That “local client contact”
was Sharpe, Allstate’s Vice President of Federal Regulatory
Affairs, who reported directly to Allstate’s chairperson and
was the principal force behind the texting-while-driving ad
campaign that the RAM study evaluated. Five months earlier,
Wainwright commended DeJesus for cultivating a
13
relationship with Sharpe, which Wainwright described as
demonstrating DeJesus’s understanding of the “who, what,
when and where of decisions.” J.A. 384. Sharpe, according
to Wainwright at the time, was “helping to drive media
decisions inside Allstate on behalf of” the Washington Post.
Id.
Wainwright’s descriptions of Sharpe are technically
consistent, but in tension: “a local client contact with no
advertising decision-making ability,” who is also a high-level
executive part of the “who, what, when and where of
decisions” and “drive[s] media decisions inside Allstate.”
Given the temporal proximity (five months) between these
dissonant descriptions, a reasonable jury could conclude that
Wainwright was shading the truth enough to evince
mendacity – that she deliberately exaggerated DeJesus’s
purported mistake in an effort to manufacture cause to
terminate him.
To be sure, there is evidence that Wainwright honestly
believed that DeJesus’s actions were proper grounds for
termination. For example, DeJesus testified that Wainwright
had an “explosive” reaction to learning about his presentation
to Sharpe instead of Hornberger, evincing genuine anger and
frustration (although, Wainwright herself disputed this
account). Indeed, some aspects of the Washington Post’s
proffered reason may be more credible than others. But, as
explained above, those aspects are so “intertwined” that they
rise and fall together. See Russell, 51 F.3d at 70.
In sum, a jury could conclude that Wainwright’s “no
worries” reaction demonstrated that the unauthorized RAM
study was not a big deal, her interpretation of DeJesus’s
actions as insubordination was so unreasonable that it could
not be honestly held, and her shaded characterization of
14
Sharpe suggests an overall lack of forthrightness. At this
stage, we “view[] the evidence in the light most favorable to”
DeJesus and are obligated to “draw[] all reasonable inferences
accordingly.” See Wheeler, 812 F.3d at 1113. We therefore
conclude that a reasonable jury could find that the
Washington Post’s proffered non-discriminatory reason –
“willful neglect of duty and insubordination” – “was not the
actual reason” for DeJesus’s termination. See Brady, 520
F.3d at 494.
If there is sufficient cause to doubt the Washington Post’s
proffered reason, what additional showing of intentional
discrimination must DeJesus make to survive summary
judgment? There is no easy answer. See Aka v. Wash. Hosp.
Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998) (en banc) (“[I]t is
difficult, if not impossible, to say in any concise or generic
way under what precise circumstances [an inference of
intentional discrimination based on a demonstration of pretext
alone] will be inappropriate.”). This Court could “do no
better than to quote [St. Mary’s Honor Center v. Hicks, 509
U.S. 502 (1993)]:” “In an appropriate case, ‘the factfinder’s
disbelief of the reasons put forward by the defendant’ will
allow it to infer intentional discrimination.” Aka, 156 F.3d at
1294 (quoting Hicks, 509 U.S. at 511). Although “rebuttal
evidence alone will not always suffice to permit an inference
of discrimination,” id. at 1292, “we do not routinely require
plaintiffs ‘to submit evidence over and above rebutting the
employer’s stated explanation in order to avoid summary
judgment[,]’” Hamilton v. Geithner, 666 F.3d 1344, 1351
(D.C. Cir. 2012) (quoting Aka, 156 F.3d at 1290). Moreover,
“[i]f ‘disbelief is accompanied by a suspicion of mendacity,’ .
. . the likelihood of intentional discrimination is increased,
permitting the factfinder to infer discrimination more readily.”
Aka, 156 F.3d at 1294 (quoting Hicks, 509 U.S. at 511). For
15
the reasons explained above, we think a reasonable jury could
suspect mendacity on the part of Wainwright.
But, for good measure, DeJesus has furnished evidence
of intentional discrimination that bolsters his claims. As to
both race and age discrimination, DeJesus submitted
“independent evidence of discriminatory statements or
attitudes on the part of the employer.” Id. at 1289.
Wainwright allegedly was “edgy” and “condescending”
to DeJesus, as compared to his white colleagues. J.A. 551,
559. She made comments susceptible to being interpreted as
race-inflected code, such as describing both DeJesus and
Sharpe as “not a good fit,” J.A. 574, complimenting DeJesus
for “speaking well,” J.A. 228-29, and dismissing an African-
American client representative as “opinionated,” J.A. 230.
Several African-American colleagues corroborated DeJesus’s
account, testifying that Wainwright was especially
condescending to and dismissive of them, refusing to respond
to an African-American colleague even if the colleague spoke
first. These accounts may be false, or it may well be that
Wainwright was an equal-opportunity bully. But it is the
province of a jury to credit, or not credit, this testimony.
It may be argued that these statements and attitudes are
immaterial because they do not concern the employment
decision – termination – in controversy. “Although we have
found that an isolated race-based remark unrelated to the
relevant employment decision could not, without more,
permit a jury to infer discrimination, we have not
categorically labeled such comments immaterial.” Morris,
825 F.3d at 669-70 (citation omitted). Indeed, a reasonable
jury could treat evidence of a decisionmaker’s broad-based
racial animus or bias as corroborating evidence that such
animus or bias infected a particular employment decision; it is
16
not unreasonable to doubt that an employer quarantines her
animus or bias to day-to-day treatment of colleagues, away
from decisions about hiring, or promotion, or termination.
Wainwright’s comments and attitude bear on the central
question in this case: were Wainwright’s employment
decisions motivated by race?
Likewise, a reasonable jury could conclude that, but for
the fact that DeJesus was fifty-nine years old, he would not
have been terminated. See Gross, 557 U.S. at 178. Higher-
level management, who were “100% supportive” of the
termination, ratified Wainwright’s decision with little
apparent discussion. J.A. 857. That “management[’s]
philosophy” since 2008 was, according to a former employee,
“downsizing, attrition, eliminating and replacing older
employees[.]” J.A. 734. In support of this characterization,
the former employee described four specific instances in
which top-level management purportedly “forced out” older
employees due to their age. J.A. 735-38. Another former
employee identified two departments in which management
“[got] rid of excellent older employees in order to put younger
people in[.]” J.A. 731. She explained that, “if you were 40+
years old, [t]he [Washington] Post made sure you were
leaving.”6 Id. It would not be an unreasonable stretch – if the
Washington Post’s proffered reason is deemed pretextual –
for a jury to conclude that when Wainwright presented the
chance to terminate a fifty-nine-year-old employee, DeJesus
was rushed out the door because of his age.7
6
The Washington Post did not object to or move to strike the
affidavits of either of these former employees.
7
During discovery, DeJesus attempted to obtain information about
employees who, like him, were offered buyouts. The District Court
concluded that “allowing discovery about employees who
17
By resolving these fact-bound questions in the
Washington Post’s favor, the District Court committed error.
IV.
For the foregoing reasons, we reverse the grant of
summary judgment by the District Court and remand for
further proceedings.
So ordered.
voluntarily resigned would likely require the [Washington] Post to
disclose substantial information that is irrelevant to De[J]esus’s
claims.” However, the heart of DeJesus’s claim is that these
voluntary resignations (i.e. buyouts) were not, in fact, voluntary;
DeJesus asserts that these buyouts were coerced and if the
employees rejected the offers, like he did, they would have been
terminated. Our case law does state buyouts are “presumed”
voluntary, see Aliotta v. Bair, 614 F.3d 556, 566 (D.C. Cir. 2010),
but this presumption can be overcome, id. at 566-67 (describing
cases). Here, the District Court’s discovery order deprived DeJesus
of the very mechanism – information about the overlap between
employees receiving buyout offers and employees being
terminated – that would have enabled him to rebut the
“voluntariness” presumption. When a terminated plaintiff’s theory
is that his buyout offer was not voluntary, information about
employees who accepted buyouts is not irrelevant, especially in
light of the liberal rules governing discovery. See 8 CHARLES A.
WRIGHT, ARTHUR R. MILLER & RICHARD L. MARCUS, FEDERAL
PRACTICE AND PROCEDURE § 2008 (3d ed. 2010) (“Certainly the
requirement of relevancy should be construed liberally and with
common sense, rather than in terms of narrow legalisms.”).