UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
JAMES LUCA,
Plaintiff,
v. Case No. 2:23-cv-11966 Magistrate Judge Anthony P. Patti COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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OPINION AND ORDER GRANTING IN PART AND HOLDING IN ABEYANCE IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (ECF No. 20)
Plaintiff James Luca was an employee at the Social Security Administration (Agency), and he claims he was wrongly passed over for higher posts with the Agency. Luca claims he wasn’t picked because of his age in violation of the Age Discrimination in Employment Act of 1967 (ADEA). He also claims that the Agency’s selection procedures disadvantaged older workers in violation of the ADEA and men in violation of Title VII of the Civil Rights Act of 1964 (Title VII). And he claims that his supervisor retaliated against him in violation of both statutes. The parties consented to me conducting all proceedings in this action, and the Agency seeks summary judgment. The Agency offers legitimate, non- discriminatory reasons for not selecting Luca, and he cannot show those reasons are pretextual. He also cannot prove that the Agency’s selection procedures had an
unlawfully disparate impact on protected groups. I shall grant the Agency’s motion with respect to these claims. But it is unclear whether Luca’s retaliation claim survives, so I shall reserve any ruling on
the Agency’s motion in remaining part, pending further briefing on that claim. BACKGROUND Luca was a fifty-two-year-old customer-service representative at the Agency’s Wyoming office in Detroit, Michigan. He was also a union steward for
the American Federation of Government Employees, Local 3239. In early 2014 Luca’s coworker alleged that the Wyoming office’s supervisor, Oussama Bazzi, bullied and harassed her. (ECF Nos. 25-1, 25-2). In his role as union steward,
Luca spoke with Bazzi about this issue and helped the coworker file a grievance with the union.1 (Id.). Luca wanted a change, so he applied for eight promotions at the Agency’s Downtown, Grand River, Southwest, Northwest, and Wyoming offices, all in
Detroit. (ECF No. 1-3, PageID.48).2 In total, fifteen men and twenty women
1 It is not clear whether Luca’s involvement with his coworker’s dispute with Bazzi happened before or after he was considered for any relevant positions. 2 ECF No. 1-3, PageID.48, lists eight vacancies. An exhibit (ECF No. 22-1) that Luca attached to his earlier, since superseded response to the instant motion suggests that two of these vacancies were at the Agency’s offices in Clawson and Livonia, (including fifteen individuals who were older than forty and twenty who were younger than forty) applied for the promotions. (Id.). In April 2014, Luca was
passed over. The Agency hired eight women and one man, all of whom were younger than forty. (Id.). Around the same time Luca also applied for a job as a teleservice
representative at the Agency’s Teleservice Center.3 There were ten vacancies at the Center, but he was rejected in May 2014. All ten jobs went to veterans. Luca suspected that his age, his sex, and his involvement with his coworker’s dispute with Bazzi had had something to do with these non-selections.
So he filed an administrative complaint with the Agency. The Agency sent him a letter acknowledging its receipt. (ECF No. 20-23). The letter also purports to describe Luca’s claims, but it’s not clear that the letter includes his supporting
factual allegations. The Agency then spoke with its selection officials, and they explained why they didn’t pick Luca. Downtown Office. Luca wasn’t selected at the Downtown office because he “was not recommended.” (ECF No. 20-13, PageID.425). The Downtown
Michigan, and not at its offices in Detroit. But neither party discusses ECF No. 22- 1 in their operative filings, so ECF No. 22-1 is not part of the summary-judgment record. And I must presume (because it’s better for Luca if it’s true) that all eight promotions listed at ECF No. 1-3, PageID.48 were at the five Detroit offices. 3 The Teleservice Center was also in Detroit, but I only use Detroit offices to refer to the Downtown, Grand River, Southwest, Northwest, and Wyoming offices. selection official had spoken to Luca’s supervisor, Bazzi, who said “that if [the Wyoming office] had a vacancy [he] would not promote [Luca].” (Id.). Luca
“needed [to be] less dependent on his mentor”; “did not always apply the policy appropriately”; “had difficulty with grasping some of the information”; “needed to work on his time management”; and “had difficulty balancing his workload,”
Bazzi said. (Id.). Grand River Office. The Grand River selection official hired an applicant who “[m]et qualifications”; and whose “work ethics, reliability, work management skills,” and “proficiency” she had “first-hand knowledge of.” (ECF No. 20-15,
PageID.442). The official additionally spoke to her manager—the Downtown selection official—about who to pick. Southwest Office. The Southwest selection official promoted an applicant
who had already worked at the Southwest office for a year. The official “was familiar with [the selectee] and [the selectee’s] work ethic,” and the selectee “possessed the skills [the official] was looking for.” (ECF No. 20-14, PageID.435). The selectee “was also fluent in Spanish.” (Id.).
Northwest Office. Personal knowledge was key at the Northwest office, too. The Northwest selection official discussed his “firsthand knowledge of [the selectee’s] work and skills.” (ECF No. 20-17, PageID.453). The official also said
that the selectee “was highly recommended and had twice the experience in the field as [Luca].” (Id.). Wyoming Office. The Wyoming selection official was Luca’s second-line
supervisor, above Bazzi. Like the other selection officials, the Wyoming official had “personal knowledge of the selectee and [the selectee’s] work performance.” (ECF No. 20-16, PageID.447). The official also reported that Luca “was a trainee
under review and had not exhibited successful completion of his training program.” (Id.). And Luca had “consistently failed to process his workloads timely and accurately and had difficulty following processing instructions to process his cases,” she said. (Id.).
The Teleservice Center. At the Teleservice Center, the selection official “consider[ed] veterans’ preference first and interview[ed] all eligible veterans.” (ECF No. 20-19, PageID.461). Luca wasn’t interviewed. The official said that
Luca “was considered,” but she declined to compare him to the interviewees because he wasn’t interviewed. (ECF No. 20-18, PageID.459). When the Agency spoke to them, some of the selection officials did not still have—or never had—certain documents. At the Grand River office, “no copies”
of the selectee’s qualifications were “available.” (ECF No. 20-15, PageID.442). The Southwest selection official couldn’t “compare the skills of [the] selectee to [Luca]’s” because she “was no longer in possession of” the relevant
“documentation.” (ECF No. 20-14, PageID.435). Nothing “related to the filing of [the] vacancy” had been “kept” at the Northwest office. (ECF No. 20-17, PageID.453). The selection official at the Wyoming office said that “[n]o
substantiating documentation” regarding the selectee’s qualifications “exists.” (ECF No. 20-16, PageID.447). And “questions and interview notes” had not been “retain[ed]” at the Teleservice Center. (ECF No. 20-18, PageID.458).
An administrative law judge considered Luca’s administrative complaint and the selection officials’ explanations. He ultimately dismissed Luca’s charges, and Luca appealed to the Equal Employment Opportunity Commission (EEOC). The EEOC affirmed, and this pro se action followed.
Luca’s complaint is hard to parse,4 but he discussed his claims at his deposition. The Agency now seeks summary judgment. The Agency focuses on the claims Luca discussed in his deposition. The Agency’s motion was fully
briefed, and it is axiomatic that “a plaintiff is deemed to have abandoned a claim when a plaintiff fails to address it in response to a motion for summary judgment.” Brown v. VHS of Mich., Inc., 545 F. App’x 368, 372 (6th Cir. 2013). Thus, I will stick to the claims Luca discussed in his response to the Agency’s motion.
Per that response, Luca brings four claims under the ADEA and Title VII.
4 Luca filed a form pro se complaint. (ECF No. 1). He also attached to the complaint a statement describing his claims in greater detail. (ECF No. 1-1). Because documents a plaintiff attaches to a complaint form part of the complaint “for all purposes,” Fed. R. Civ. P. 10(c), Luca’s attached statement is part of his complaint. First, he claims that the Detroit selection officials didn’t promote him because of his age. Second, he claims that the Detroit offices’ promotion procedure
disproportionately hurt male applicants. In support, he pleaded that the Detroit selection officials formed committees that didn’t promote the three most qualified candidates or conduct interviews. (Compl. 7 ¶¶ 43–45, ECF No. 1-1). Third, he
claims that the Teleservice Center’s preference for veterans harmed older applicants. Fourth and last, he claims that Bazzi gave a negative reference to the Downtown selection official because of his involvement with his coworker’s dispute with Bazzi, and that he lost out on the Downtown and Grand River
promotions as a result. No hearing on the Agency’s motion is necessary. STANDARD OF REVIEW
Summary judgment is proper “if the movant shows that 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). And parties genuinely dispute material facts if, “taking the evidence in the light most favorable to the non-moving party and
drawing all reasonable inferences in that party’s favor, ‘a reasonable jury could return a verdict for the nonmoving party.’” DeVore v. Univ. of Ky. Bd. of Trs., 118 F.4th 839, 844 (6th Cir. 2024) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)). A defendant is entitled to summary judgment if it shows that the plaintiff cannot “establish the existence of an element essential to [the plaintiff]’s case, and
on which [the plaintiff] will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To do that, “the defendant’s summary- judgment briefing need only show that the record lacks evidence from which ‘a
rational trier of fact’ could find for the plaintiff on the issue.” Lemaster v. Lawrence County, 65 F.4th 302, 309 (6th Cir. 2023). But when a defendant seeks summary judgment on an affirmative defense, “its burden of production is greater” because it must prove the defense at trial. Id.
at 310 (quoting 10A Wright & Miller’s Federal Practice & Procedure § 2727.1 (4th ed. 2016)). A defendant who seeks summary judgment on an affirmative defense accordingly “must affirmatively introduce evidence of such weight that no
rational jury could disagree with it.” Id. ANALYSIS Luca brings claims against a federal agency under the ADEA and Title VII. The ADEA’s federal-sector provision requires “personnel actions” by federal
agencies “affecting employees or applicants for employment who are at least 40 years of age” to be “made free from any discrimination based on age.” 29 U.S.C. § 633a(a). And Title VII’s federal-sector provision requires such actions to be
“made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). Both statutes are only enforceable by private action if the plaintiff exhausted available administrative remedies. See Hunter v.
Sec’y of U.S. Army, 565 F.3d 986, 993 (6th Cir. 2009). I. The Detroit Selection Officials’ Non-promotions Luca claims that the Detroit selection officials didn’t promote him based on his age in violation of the ADEA. The parties agree that the McDonnell Douglas
framework applies to this disparate-treatment claim. See, e.g., See Briggs v. Potter, 463 F.3d 507, 514–17 (6th Cir. 2006) (applying McDonnell Douglas to a federal-sector ADEA claim).
McDonnell Douglas has three steps. First, Luca must make out a prima facie claim. See id. at 514. Second, the burden shifts to the Agency “to articulate a legitimate, nondiscriminatory reason for the” non-promotions. Id. Last, “the
burden shifts back to [Luca], who must establish that the legitimate reasons offered by the [Administration] were just a pretext for decisions actually motivated by an unlawful bias against age.” Id. (quoting Rowan v. Lockheed Martin Energy Sys., 360 F.3d 544, 547 (6th Cir. 2004)).
Even if Luca makes out a prima facie claim, the Detroit selection officials had good reasons not to promote him. Luca hadn’t worked with the officials directly, while the selectees had. He didn’t speak Spanish. The selectees had good
work ethic, extensive experience, and good reviews from their supervisors. Luca’s supervisor, Bazzi, gave him a bad review. And the hiring official at the Wyoming office personally knew that Luca wasn’t up to the task. These reasons are not only
good; they are legitimate and non-discriminatory. Luca disagrees for three reasons, none of which are persuasive. A. Prohibited Personnel Practice First, Luca argues that the Grand River, Southwest, Northwest, and
Wyoming selection officials displayed improper “favoritism,” or “familiarity,” towards their selectees. (ECF No. 25, PageID.586, 589). According to him, favoritism counts as a prohibited personnel practice under 5 U.S.C. § 2302(b)(6).
Section 2302(b)(6) prohibits federal agencies from “grant[ing] any preference or advantage not authorized by law, rule, or regulation to any . . . applicant for employment . . . for the purpose of improving or injuring the prospects of any
particular person for employment.” § 2302(b)(6). Luca’s reliance on § 2302(b)(6) is misplaced. Even if the Grand River, Southwest, Northwest, and Wyoming selection officials showed favoritism and § 2302(b)(6) prohibits favoritism, favoritism is not necessarily aged-based
discrimination. And Luca offers nothing showing that the officials’ favoritism stemmed from age-based animus. Accord Holder v. City of Raleigh, 867 F.2d 823, 826 (4th Cir. 1989); Schobert v. Ill. Dep’t of Transp., 204 F.3d 725, 733 (7th Cir.
2002); Ladenberger Plymouth-Canton Cmty. Schs., No. 16-14170, 2018 WL 3914709, at *5–9 (E.D. Mich. Aug. 16, 2018). B. Recordkeeping
Second, Luca says that the Southwest, Northwest, and Wyoming selection officials violated part 1602.14 of title 29 of the Code of Federal Regulations, which implements Title VII’s recordkeeping requirement. 29 C.F.R. § 1602.14 (2024). Part 1602.14 requires employers to keep certain records “for a period of
one year from the date of the making of the record or the personnel action involved, whichever occurs later.” Id. And if “a charge of discrimination has been filed,” then part 1602.14 requires an employer to keep relevant records until the
charge is resolved. Id. As a preliminary matter, part 1602.14 is inapposite because Luca brings his disparate-treatment claims under the ADEA, and the ADEA also has its own
recordkeeping requirement: part 1627.3 of title 29 of the Code of Federal Regulations. 29 C.F.R. § 1627.3 (2024). Part 1627.3 also requires employers to keep records for at least one year and, if a charge of discrimination is filed, until the charge is resolved. See id. The Agency does not dispute that part 1627.3 is
materially identical to 1602.14. The Agency also doesn’t dispute that the Southwest, Northwest, and Wyoming selection officials didn’t preserve records as required by parts 1602.14
and 1627.3. Instead, the Agency argues that Luca would not be entitled to an adverse-inference instruction at trial, i.e., an instruction that the jury may presume unavailable records contained evidence of discrimination.
But Luca doesn’t seek an adverse inference per se. Rather, he argues that the selection officials’ failures to preserve records casts doubt on their credibility. And if the officials aren’t credible, then the Agency can’t discharge its burden at
step two of McDonnell Douglas. His theory is this, in essence: “Honest people follow the rules, and dishonest ones don’t.” Courts can’t resolve credibility issues on summary judgment. That’s the jury’s job. Anderson, 477 U.S. at 255. But the question remains whether the
officials’ conduct undermines their credibility, or whether Luca is grasping at straws to avoid summary judgment. In the Court’s view, it’s the latter. Nothing about an official’s failure to follow a recordkeeping rule necessarily, or even
likely, makes them a liar. And even if Luca seeks an adverse inference, he fares no better. Grosdidier v. Broadcasting Board of Governors, 709 F.3d 19 (D.C. Cir. 2013), is instructive. There, the D.C. Circuit “recognized the negative evidentiary inference arising from
spoliation of records” in a Title VII employment-discrimination case. Id. at 27 (emphasis added). But the Southwest office selection official said only that she didn’t possess certain records. And the Wyoming selection official said that the
relevant records did not exist. Neither of these statements show, with enough clarity to entitle Luca to an adverse-inference instruction, that relevant records were spoliated, i.e., destroyed, mutilated, altered or concealed. Spoliation, Black’s
Law Dictionary (12th ed. 2024). The non-promotion at the Northwest office is a closer call, because the Northwest selection official stated that records had not been kept. This implies
destruction. Per Grosdidier, Luca would be entitled to an adverse-inference instruction. That is true because he is a member of the class protected by the ADEA and the records likely contained relevant evidence. See id. at 27–28. Considering the officials’ other statements, however—that the selectee was skillful
and had twice Luca’s experience—any adverse inference “would not permit a reasonable finding that the destroyed [records] would have established pretext, let alone unlawful discrimination.” Id. at 28–29.
C. Plain Superiority Third, Luca says that he was plainly superior to the other candidates. In the right circumstances, a rejected applicant’s plain superiority to a selectee for a promotion can show pretext under McDonnell Douglas. See, e.g., Bartlett v.
Gates, 421 F. App’x 485, 490–91 (6th Cir. 2010). But Luca solely relies on a document describing the Downtown vacancies and listing applicants’ names. (ECF No. 20-6, PageID.231–42). That is woefully inadequate.
No reasonable jury would find that the Detroit selection officials intentionally discriminated against Luca based on his age, there being no admissible evidence of pretext to challenge the legitimate reasons given for hiring
other people.5 II. The Detroit Offices’ Promotion Procedure Luca also claims that the Detroit offices’ promotion procedure had an unlawfully disparate impact on men in violation of Title VII. Like the ADEA,
Title VII prohibits intentional discrimination. See Tepper v. Potter, 505 F.3d 508, 515 (6th Cir. 2007). Title VII also prohibits “employment practices that are ‘fair in form but discriminatory in operation.’” Phillips v. Cohen, 400 F.3d 388, 397 (6th
Cir. 2005) (quoting Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971)). The Agency argues that Luca failed to exhaust this claim and that it fails on the merits. A. Failure to Exhaust Failure to exhaust under Title VII’s federal-sector provision is an affirmative
defense. Rembisz v. Law, 590 F. App’x 501, 503–04 (6th Cir. 2014). Here, the Agency concedes that Luca exhausted a disparate-treatment claim that he brings under Title VII. Although Luca’s disparate-treatment claim arises under the
ADEA, the Agency effectively agrees that Luca’s administrative proceedings were
5 If Luca claimed that the Detroit selection officials didn’t promote him based on his membership in a class protected by Title VII, McDonnell Douglas would apply to that claim, too. See, e.g., Tepper v. Potter, 505 F.3d 508, 515–16 (6th Cir. 2007). And that claim would fail for the reasons discussed in Part I. exhaustive for any Title VII claims that proceeding embraced. And the parties dispute whether Luca’s disparate-impact challenge to the Detroit offices’
promotion procedure was part of that proceeding. Where, as here, a defendant argues that an administrative proceeding which would otherwise have been exhaustive under Title VII nevertheless did not exhaust
a certain Title VII claim, the “expected scope of investigation test” controls.6 Dixon v. Ashcroft, 392 F.3d 212, 217 (6th Cir. 2004) (quoting Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367, 380 (6th Cir. 2002)). Under that test, any claim that the EEOC reasonably would have investigated based on the facts the plaintiff
alleged is exhausted. See id. Thus, the Agency must prove that Luca never alleged such facts for his challenge to the Detroit offices’ promotion procedure. The Agency falls short. It solely relies on its letter acknowledging its receipt
of Luca’s administrative complaint. (ECF No. 20-23). But construed in the light most favorable to Luca, that letter only details his claims, and not the facts he alleged in support. And neither Luca’s administrative complaint nor any documents he filed with the EEOC are in the summary-judgment record. The
Agency cannot satisfy the reasonable-scope-of-investigation test.
6 The expected-scope-of-investigation test would not necessarily control whether Luca exhausted any ADEA claims because “the ADEA does not explicitly require a plaintiff to exhaust administrative remedies before bringing suit.” McKnight v. Gates, 282 F. App’x 394, 397 (6th Cir. 2008). An ADEA plaintiff need only notify the EEOC that he intends to bring suit. See Hunter, 565 F.3d at 993. The Agency also points to Luca’s civil complaint in this case, which alleges that the EEOC never addressed some of his claims. The Agency infers that the
EEOC ignored some of his claims because he never raised them in the first place. But all reasonable inferences must be drawn in Luca’s favor, and therefore a reasonable jury could infer that the EEOC ignored some of his claims.
In sum, not every reasonable jury would find that Luca failed to exhaust his Title VII disparate-impact challenge to the Detroit offices’ promotion procedure. B. On the Merits To prevail on his disparate-impact challenge to the Detroit offices’
promotion procedure, Luca “must identify employment practices challenged and show their disparate impact on [men].” Phillips, 400 F.3d at 397. He pleaded that the Detroit selection officials formed committees, and that those committees did
not make promotions from among the top three candidates and did not conduct interviews. But the undisputed, admissible evidence of record shows that the Detroit selection officials did the promoting, and not any committee. (ECF Nos. 20-13 to 20-19). As such, no reasonable jury would find that the Detroit offices’
promotion procedure discriminated based on sex.7
7 If Luca claimed that the Detroit offices’ promotion procedure disparately impacted another class protected by Title VII to which he belongs, that claim would fail for the reasons discussed in Part II.B. And, if Luca claimed that the Detroit offices’ promotion procedure disproportionately harmed older applicants in violation of the ADEA, that claim would also fail for the reasons discussed in Part II.B. See Smith v. III. The Teleservice Center’s Preference for Veterans Luca claims that the Teleservice Center’s preference for veterans unlawfully
disadvantaged older workers. To prevail, he must: (1) “identify[] the specific employment practice that is challenged”; (2) show a disparity; and (3) connect the practice to the disparity. Wards Cove Packing Co. v. Antonio, 490 U.S. 642, 656 (1989) (quoting Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 994 (1988)); see
also Smith v. City of Jackson, 544 U.S. 228, 241 (2005) (holding that Wards Cove governs disparate-impact claims under the ADEA’s federal-sector provisions). Luca identifies a specific employment practice: a preference for veterans.
To show that this practice caused a disparity, he can compare “the [age] composition of the qualified persons in the labor market” to “the persons holding at-issue jobs.” Wards Cove, 490 U.S. at 650. Alternatively, if “labor market
statistics will be difficult if not impossible to ascertain,” then he may, for example, offer some “measure[] indicating the [age] composition of ‘otherwise-qualified applicants’ for at-issue jobs.” Id. at 651 (quoting N.Y.C. Transit Auth. v. Beazer,
City of Jackson, 544 U.S. 228, 241 (2005) (holding that under the ADEA, “the employee is ‘responsible for isolating and identifying the specific employment practices that’” allegedly had a disparate impact” (quoting Wards Cove Packing Co. v. Antonio, 490 U.S. 642, 656 (1989))). Even if Luca could prove that the Detroit selection officials used a specific employment practice, he still fails to put forward data necessary to prove that the policy disparately impacted older workers or a class protected by Title VII for the reasons discussed in Part III. 440 U.S. 568, 585 (1979)). Luca’s proofs are woefully insufficient. He relies solely on the fact that the
Teleservice Center didn’t hire any non-veterans for the ten vacancies. He infers that the Center’s veteran-preference policy discriminated based on age because he was older than forty and wasn’t selected for any of the ten positions. But he offers
nothing showing that the ten positions went to individuals younger than forty. And even if all ten jobs went to individuals younger than forty, that still wouldn’t be good enough. He needs data about the larger job market, and he offers none.8 No reasonable jury would find that the Teleservice Center’s preference for
discriminated based on age.9
8 Luca also argues that the Teleservice Center’s selection official failed to preserve records. It’s not clear what he believes this adds to the disparate-impact calculus. All agree that the Teleservice Center’s official preferred to hire veterans. 9 If Luca claimed that the Teleservice Center’s preference for hiring veterans disparately impacted a class protected by Title VII to which he belongs, that claim would also fail for lack of statistical support. See Phillips, 400 F.3d at 399. If Luca claimed that the Teleservice Center’s preference for hiring veterans had a disparate impact on non-veterans, that claim would fail too because neither the ADEA nor Title VII protects non-veterans. See §§ 633a(a); 2000e-16(a). And if Luca claimed that the Teleservice Center’s selection official intentionally discriminated against him based on his age or membership in a class protected by Title VII, McDonnell Douglas would control. See id. (Title VII); Briggs, 463 F.3d at 514 (ADEA). But a preference for veterans is legitimate and non-discriminatory, and Luca couldn’t show pretext. Indeed, the law requires federal agencies to give preference to veterans for many jobs. See 5 U.S.C. § 3301 note (Executive Orders). Luca would likely disagree. He says that the Teleservice Center’s official failed to preserve records. But that argument would fail for the reasons detailed supra, Part I.B. IV. Retaliation Claim Last, Luca brings a retaliation claim. He claims that Bazzi gave a negative
reference to the Downtown selection official, who in turn spoke with the Grand River selection official, and that he lost out on the Downtown and Grand River promotions as a result. And he claims that Bazzi only gave him a negative reference because he had gotten involved in Bazzi’s dispute with the coworker,
which stemmed from his duties as a union steward. The Agency argues that Luca cannot prove that the Detroit offices failed to promote him in retaliation for his past ADEA and Title VII activity. But that’s not
what Luca claims; he claims that Bazzi’s negative reference was retaliatory.10 He seeks damages for that reference because, he says, he otherwise would have been promoted at the Downtown and Grand River offices. Given the scattershot nature
of the pleadings, I will permit the Agency to address this claim and permit Luca to respond. See Fed. R. Civ. P. 56(e)(1).
10 The only other selection official who arguably knew about Luca’s involvement with the coworker’s and Bazzi’s dispute was the Wyoming selection official, because she was Luca’s second-line supervisor. If Luca claimed that his non- promotion at the Wyoming office was in retaliation for that conduct, then McDonnell Douglas would apply. See, e.g., Kaminsky v. Wilkie, 856 F. App’x 602, 607 (6th Cir. 2021) (ADEA); Taylor v. Geithner, 703 F.3d 328, 335–40 (6th Cir. 2013) (Title VII). And that claim would fail at step two because the Wyoming official’s reasons for not promoting him—that the selectee was a good worker and Luca wasn’t—were legitimate and non-discriminatory, and Luca couldn’t show pretext for the reasons discussed in Part I. CONCLUSION & ORDER All Luca’s claims, except his retaliation claim in connection with Bazzi’s negative reference, fail as briefed. Accordingly, IT IS ORDERED that the Agency’s motion (ECF No. 20) is GRANTED, except to the extent that it seeks
summary judgment on Luca’s retaliation claim. That portion of the motion is HELD IN ABEYANCE, pending supplemental, expedited briefing. IT IS FURTHER ORDERED that: (1) The Agency shall, on or before SEPTEMBER 5, 2025, file a brief of no more than seven pages addressing only Luca’s retaliation claim; (2) Luca shall, within two weeks of the filing of the Agency’s brief, file a response brief of no more than seven pages addressing only the Agency brief; and (3) The Agency may, within three business days of the filing of Luca’s response brief, file a reply brief of no more than three pages addressing only Luca’s response. IT IS SO ORDERED.
Dated: August 26, 2025 fo P. Anthony P. Patti UNITED STATES MAGISTRATE JUDGE