Ford v. Mabus

629 F.3d 198, 393 U.S. App. D.C. 400, 2010 U.S. App. LEXIS 25254, 93 Empl. Prac. Dec. (CCH) 44,054, 110 Fair Empl. Prac. Cas. (BNA) 1665, 2010 WL 5060998
CourtCourt of Appeals for the D.C. Circuit
DecidedDecember 10, 2010
Docket09-5041
StatusPublished
Cited by94 cases

This text of 629 F.3d 198 (Ford v. Mabus) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ford v. Mabus, 629 F.3d 198, 393 U.S. App. D.C. 400, 2010 U.S. App. LEXIS 25254, 93 Empl. Prac. Dec. (CCH) 44,054, 110 Fair Empl. Prac. Cas. (BNA) 1665, 2010 WL 5060998 (D.C. Cir. 2010).

Opinions

Opinion for the Court filed by Circuit Judge TATEL.

Opinion concurring in the judgment filed by Circuit Judge HENDERSON.

TATEL, Circuit Judge:

Appellant, a federal government employee, alleges discrimination on the basis of age in violation of section 633a of the Age Discrimination in Employment Act (ADEA). The district court applied the McDonnell Douglas framework and found that appellant had failed to meet his ultimate burden of proving that age was the but-for cause of the challenged action. Seeing error in neither the district court’s fact-findings nor its evidentiary rulings, we affirm that portion of its judgment. But because of what this court has called section 633a’s “sweeping” language — “all [federal government] personnel actions ... shall be made free from any discrimination based on age” — we hold that plaintiffs may also establish liability, though not necessarily entitlement to such remedies as reinstatement and backpay, by showing that consideration of age was a factor in the challenged personnel action. We therefore reverse the entry of judgment for the government and remand for further proceedings consistent with this opinion.

I.

Born December 21, 1940, appellant Richard Ford is an engineer who works on a variety of issues related to electromagnetic effects. With the exception of a brief hiatus in the private sector from 1984 to 1986, Ford worked in various capacities for the Department of the Navy from 1964 to 1997. In the 1970s, Ford participated in founding SEMCIP, a program focused on testing and improving ship systems to reduce electromagnetic problems. Although Ford retired in 1997, he continued working as a consultant both for the Navy and in the private sector. In 2005, he returned as a full-time Navy employee in order to reindex his pension.

In January of 2006, Ford applied to be branch head of NAVSEA, the Naval Sea Systems Command, a position that includes oversight of the SEMCIP program. Because the prior branch head had also served as Technical Warrant Holder, a position responsible for oversight of technological developments and design standards, Ford believed he was applying for that position as well.

Before Ford was interviewed for the branch head position, Mark Johnson, twenty-five years Ford’s junior, was selected as Technical Warrant Holder by a hiring panel consisting of three high-ranking Navy engineers, Patrick Hartman, James Meng, and Vance Brahosky. The interviewing panel for the branch head position included Brahosky, as well as Paul Mann, another high-ranking Navy engineer. The panel recommended to Meng, the hiring official, that the branch head position also go to Mark Johnson. According to the testimony of Edward Wallace, a former NAVSEA employee who claims he was forced out because of his age, Meng had made nu[201]*201merous comments about the negative impact of an aging workforce on the health of the organization and about the need for younger employees. Brahosky testified that he drafted a memo to Meng explaining the recommendation, but in discovery he was unable to produce that memo. When Brahosky phoned Ford to inform him that Johnson had been given the job, Brahosky explained that the decision turned on Ford’s lack of “topside design experience” and on his statement during the interview that he had trouble dealing with bureaucracy. Ford challenged both explanations. He then set up a meeting with Paul Mann during which Mann told him that his references were negative but refused to reveal which references he had contacted. Asked directly by Ford whether age had played a role in the decision, Mann answered no.

Ford sued the Secretary of the Navy under ADEA section 633a, which prohibits discrimination based on age in federal employment. Following a bench trial, the district court found that although the hiring process was “tinged” with consideration of age, Ford had failed to show either that age was a determining factor, as required by the McDonnell Douglas Corp. v. Green pretext analysis, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), or that age was a motivating or substantial factor, as required by the mixed-motives analysis set forth in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). On appeal, Ford challenges both rulings.

II.

We begin with the district court’s application of the McDonnell Douglas framework, under which the employer, once the plaintiff has made out a prima facie case, bears the burden of producing a non-discriminatory explanation for the challenged personnel action. See McDonnell Douglas, 411 U.S. at 802-03, 93 S.Ct. 1817 (laying out this test); Krodel v. Young, 748 F.2d 701, 705 (D.C.Cir.1984) (applying McDonnell Douglas to ADEA eases). The plaintiff, however, bears the ultimate burden of proving that discriminatory animus was the determining or but-for cause of the personnel action. See McDonnell Douglas, 411 U.S. at 803-05, 93 S.Ct. 1817. The plaintiff may satisfy this burden “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).

In this case the district court applied McDonnell Douglas and found that age was not the but-for cause of the Navy’s decision to promote Johnson instead of Ford. Ford challenges this conclusion and a number of related fact-findings, which we review under a “clearly erroneous” standard. Fed.R.Civ.P. 52(a)(6). Specifically, we set aside district court fact-findings only if we are “left with the definite and firm conviction that a mistake has been committed.” United States v. US. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948).

Ford first argues that the district court attached insufficient significance to evidence of age bias. In support, he points to Meng’s comments at staff meetings, to Wallace’s testimony about his own experiences, and to the Navy’s so-called Human Digital Dashboard, which monitors the health of the Technical Warrant Holder hierarchy by tracking ages of warrant holders and them support staffs. Based on this evidence, the district court concluded that although the Navy was cognizant of its aging workforce, Ford had failed to establish a sufficient nexus between the personnel action and the Navy’s consideration of age. See Hall v. Giant Food, Inc., 175 F.3d 1074, 1079-81 (D.C.Cir.1999) (im[202]*202plementing requirement for such a link). As the district court observed, there is a difference between macro level institutional interests — expressed in the evidence presented by Ford — and individual day-today decisions. Certainly the former sheds light on the latter, but it was for the finder of fact to decide whether enough light was shed, and given the circumstantial nature of the evidence and our highly deferential standard of review, Ford has offered us no basis for setting aside the district court’s fact-finding.

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629 F.3d 198, 393 U.S. App. D.C. 400, 2010 U.S. App. LEXIS 25254, 93 Empl. Prac. Dec. (CCH) 44,054, 110 Fair Empl. Prac. Cas. (BNA) 1665, 2010 WL 5060998, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ford-v-mabus-cadc-2010.