Spaeth v. Georgetown University

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

NICHOLAS SPAETH,

Plaintiff,

v. Civil Action No. 11-1376 (ESH)

GEORGETOWN UNIVERSITY,

Defendant.

MEMORANDUM OPINION

Plaintiff Nicholas Spaeth brings suit against Georgetown University, alleging that it

discriminated based on age, in violation of the Age Discrimination in Employment Act, 29

U.S.C. §§ 621 et seq. (“ADEA”), and the District of Columbia Human Rights Act, D.C. Code §§

2-1401.01 et seq. (“DCHRA”), when it declined to interview and hire him after he applied for an

entry-level tenure-track teaching position through the 2010 American Association of Law

Schools (“AALS”) Faculty Appointments Register. (See Amended Complaint, Nov. 7, 2011

[ECF No. 10] (“Am. Compl.”).) 1 Georgetown now moves for summary judgment. For the

reasons set forth below, Georgetown’s motion will be granted.

1
Spaeth originally sued five other law schools along with Georgetown: Michigan State
University College of Law; the University of Missouri School of Law; the University of
California, Hastings College of the Law; the University of Iowa College of Law; and the
University of Maryland School of Law. (See Am. Compl. ¶ 1). In prior Orders, this Court
severed Spaeth’s claims against those five institutions and transferred them to the defendants’
home forums. (See Order, Feb. 17, 2012 [ECF No. 59]; Order, Mar. 8, 2012 [ECF No. 68].)
Spaeth voluntarily dismissed the claims against four of those schools, opting to proceed only
against the University of Missouri in a state court action and against Georgetown in the instant
suit. (See Defendant’s Motion for Summary Judgment [ECF No. 91] (“Def. Mot.”) at 15 (citing
Deposition of Nicholas Spaeth at 54-56).)
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 BACKGROUND

I. SPAETH’S EDUCATIONAL AND PROFESSIONAL EXPERIENCE

Nicholas Spaeth is an attorney who was born in 1950 and currently lives in Kansas City,

Missouri. (See id. ¶¶ 1, 6.) Spaeth achieved significant academic honors, graduating magna cum

laude from Stanford University in 1972; receiving a Rhodes Scholarship to attend Oxford

University, from which he graduated summa cum laude in 1974; and graduating from Stanford

Law School in 1977, after serving as Managing Editor of the Stanford Law Review. (See id. ¶¶

38-40.) Following law school, he served as a law clerk to Judge Myron Bright on the Eighth

Circuit Court of Appeals and to Justice Byron White on the United States Supreme Court. (See

id. ¶¶ 41-42.) Spaeth subsequently had an illustrious career in the practice of law, serving as

North Dakota State Attorney General for seven years, as general counsel to several Fortune 500

companies, and as a lawyer in private practice. (See id. ¶¶ 44-45, 48-59.) Spaeth also taught

constitutional law as an adjunct professor of law at the University of Minnesota Law School

from 1980 through 1983. (See id. ¶ 61.)

After retiring in 2009 from his most recent position as a senior executive officer at the

Federal Home Loan Bank of Des Moines, Spaeth decided to pursue an academic career. (See

Declaration of Nicholas Spaeth (“Spaeth Decl.”), Ex. 8 to Plaintiff’s Opposition to Defendant’s

Summary Judgment Motion [ECF No. 95] (“Pl. Opp.”), ¶ 9; Defendant’s Statement of

Undisputed Facts [ECF No. 91-2] (“Def. SOF”) ¶ 3; Plaintiff’s Response to Defendant’s

Statement of Undisputed Facts [ECF No. 95-3] (“Pl. Resp. SOF”) ¶ 3.) He made inquiries at

several schools, hoping to obtain a permanent position. (See Exs. 8-17 to Defendant’s Praecipe

(“Def. Praecipe”) [ECF No. 103].) Ultimately, he obtained a non-tenure-track position as

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Visiting Professor of Law at the University of Missouri at Columbia for the 2010-2011 school

year, teaching securities law, mergers and acquisitions, banking law, and accounting and

business transactions. (See Spaeth Decl. ¶ 9.)

II. SPAETH’S APPLICATION FOR EMPLOYMENT

Because the visiting professor position at the University of Missouri was only a one-year

appointment, Spaeth continued his search for a permanent position through the AALS entry-level

hiring process in the fall of 2010. (See Def. SOF ¶ 5; Pl. Resp. SOF ¶ 5.) AALS facilitates

entry-level hiring for its 172 member schools, including Georgetown University Law Center

(“Georgetown”). (See Def. SOF ¶ 6; Pl. Resp. SOF ¶ 6.) AALS maintains an online system, the

Faculty Appointments Register (“FAR”), through which candidates may submit information

regarding their qualifications and interest in academic positions. (See Def. SOF ¶ 7; Pl. Resp.

SOF ¶ 7.) Candidates fill out a one-page electronic FAR form, which requests information about

the candidate’s education, work experience, teaching interests, and “Major Published Writings.”

(See Def. SOF ¶ 7; Pl. Resp. SOF ¶ 7.) Candidates may also attach their resumes to the FAR

form. (See Pl. Resp. SOF ¶ 13.) AALS enters all FAR forms into a centralized database that

member law schools can search to identify candidates of interest. (See Def. SOF ¶ 7; Pl. Resp.

SOF ¶ 7.) In addition, each fall AALS sponsors a Faculty Recruitment Conference in

Washington, D.C., where member law schools can conduct brief screening interviews of

candidates in order to decide which applicants to invite to campus for more in-depth interviews.

(See Def. SOF ¶ 8; Pl. Resp. SOF ¶ 8.)

Spaeth submitted a FAR form in the fall of 2010. (See Def. SOF ¶ 13; Pl. Resp. SOF

¶ 13.) Spaeth indicated, in response to prompts on the form, that the subjects he would “most

like to teach” included financial institutions, insurance law, and business associations. (Spaeth

3
FAR Form, Ex. A to Spaeth Decl.) Under the heading “other subjects may be interested in

teaching,” he listed securities regulation, corporate finance, constitutional law, and Native

American law. (Id.) Finally, he listed criminal law and international business transactions as

“other subjects would be willing to teach, if asked.” (Id.) Spaeth did not list tax as an area in

which he was interested or willing to teach. Spaeth characterized the omission of tax from his

FAR form as a computer error, explaining “[t]here was an error in posting entries for the third

teaching category (‘Other subjects would be willing to teach, if asked’), since I tried to list tax

and one other subject, but the online registration process only listed the second and fourth items

that I posted.” (Spaeth Decl. ¶ 12.) The only publication that Spaeth listed was a “Handbook of

American Indian Law” published in 1993. (Spaeth FAR Form.) Spaeth noted on his FAR form

that his “[f]ull resume [was] available online.” (Id.) His resume indicated, among other things,

that as Visiting Professor of Law at the University of Missouri, he was “[t]eaching in the areas of

financial services regulation, securities and taxation.” (Spaeth Resume, Ex. A to Spaeth Decl., at

1.) His resume did not include a publications section but under the heading “Other

Background,” it stated “Editor, American Indian Law Deskbook . . . and author of numerous

other publications.” (Id. at 4.)

In September and October of 2010, Spaeth wrote to several law schools directly to

indicate his interest in being considered for a position, including the University of Kansas,

Arizona State University, the University of Oregon, the University of Minnesota, the University

of Colorado, the University of Wyoming, and the University of Missouri. (See Deposition of

Nicholas Spaeth (“Spaeth Dep.”) at 47-48, Ex. 2 to Declaration of Douglas Crosno [ECF No. 91-

4] (“Crosno Decl.”); Exs. 1, 2, 4 & 5 to Def. Praecipe.) He did not write directly to Georgetown

4
or otherwise have any other contact with the school, except to submit his FAR form to AALS for

review by Georgetown and 171 other schools. (See Def. SOF ¶ 24; Pl. Resp. SOF ¶ 24.)

Spaeth was only invited to preliminary interviews by two schools in 2010 – the

University of Missouri and the University of Nebraska – and received no job offers. (See Def.

SOF ¶ 66; Pl. Resp. SOF ¶ 66.) His contract with Missouri was not renewed after the 2010-11

school year, and although he has pursued various opportunities in the public sector and in private

practice, he has not been employed since that time. (See Def. SOF ¶ 67; Pl. Resp. SOF ¶ 67.)

III. GEORGETOWN’S HIRING PROCESS

During the 2010-2011 hiring cycle, Georgetown formed separate committees for entry-

level hiring and lateral hiring, as it had done since 2008. (See Def. SOF ¶ 28, Pl. Resp. SOF

¶ 28; Ex. 4 to Cornelia Pillard Deposition [ECF No. 95-6] (“Pillard Dep.”) at 4.) The entry-level

hiring committee was chaired by Professor Cornelia Pillard and included four other professors,

including Rebecca Tushnet and Joshua Teitelbaum. (See Aug. 21, 2010 Pillard email, Ex. 21 to

Pillard Dep.) When the first distribution of FAR forms became available in late August 2010,

Pillard divided them alphabetically to give each committee member 130 applications to review in

an “initial full sweep,” indicating that she “want[ed] at least one of us to have looked at each

applicant’s FAR one-pager.” (Id.) Pillard assigned herself the last 142 applications, which

included Spaeth’s. (Id.) The committee later reviewed a second distribution of 111 FAR forms,

also divided roughly evenly amongst the committee members for an initial review. (See Sept.

12, 2010 Pillard email, Ex. 22 to Pillard Dep.) Certain applications were reviewed by multiple

committee members in an effort to identify candidates in particular fields (mainly tax) and to

winnow down the pool of first-round candidates. (See Def. SOF ¶¶ 42, 43, 44; Plaintiff’s

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Concise Statement of Genuine Issues of Disputed Material Facts [ECF No. 95-4] (“Pl. SOF”)

¶ 20.)

Out of approximately 800 FAR forms reviewed by the committee, twenty-five were

selected for initial screening interviews conducted at the AALS Faculty Recruitment Conference

in late October 2010, or, for local candidates, off-site around the same time period. (See Def.

SOF ¶ 45.) Approximately ten candidates were invited for “call-back” interviews on campus and

seven accepted the invitation. (See Transcript of April 8, 2013 Motions Hearing (“Tr.”) at 10.)

Ultimately, Georgetown offered entry-level tenure-track positions to four candidates, three of

whom accepted. (See id.)

Georgetown’s three hires during the 2010-11 cycle were John (“Jake”) Brooks, Itai

Grinberg, and Eloise Pasachoff. (See Def. SOF ¶ 52; Pl. Resp. SOF ¶ 52.) All three were thirty-

five years old at the time they were hired. (See Def. SOF ¶ 55; Pl. Resp. SOF ¶ 55.) Brooks and

Pasachoff both submitted FAR forms, and also wrote to Pillard directly expressing their interest

in Georgetown and providing detailed research agendas and copies of publications prior to being

selected for an interview. (See Def. SOF ¶ 59; Pl. Resp. SOF ¶ 59; Aug. 10, 2010 Letter from

Brooks to Pillard, Ex. 3 to Pillard Decl.; Aug. 23, 2010 Letter from Pasachoff to Pillard, Ex. 5 to

Pillard Decl.) Grinberg did not submit a FAR form, but instead, he wrote directly to Pillard after

another Georgetown professor facilitated the connection. (See Oct. 6, 2010 email from Grinberg

to Pillard, Ex. 4 to Pillard Decl.) Grinberg provided copies of his publications and a research

agenda. (See id.) Unsolicited recommendation letters or emails were sent on behalf of each of

the three candidates, primarily from law school professors. (See Exs. 6, 7, 8 to Pillard Decl.)

Some of these recommendations were sent prior to the candidates being selected for interviews,

while others were sent after they were selected but before the interviews took place.

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 All three hires had impressive credentials. Grinberg graduated from Amherst College

magna cum laude and from Yale Law School. He spent several years as a tax associate at the

law firm of Skadden Arps, one year as counsel to the President’s Advisory Panel on Federal Tax

Reform, and three years as an Attorney-Advisor in the Office of Tax Policy at the Treasury

Department. At the time he was hired, Grinberg had published four scholarly articles, had a “job

talk” paper, and had a detailed research agenda, all related to tax. (See generally Exs. 4 & 7 to

Pillard Decl.)

Brooks graduated from Harvard College cum laude and Harvard Law School magna cum

laude, where he earned a prize for the best student paper on taxation and worked as a research

assistant to a top tax scholar. After law school, Brooks clerked for Judge Norman H. Stahl of the

First Circuit Court of Appeals before working at the law firm of Ropes & Gray as a tax associate

for two years. Brooks then served as a Climenko Fellow and Lecturer on Law at Harvard Law

School for two years. At the time he was hired, Brooks had one scholarly article accepted for

publication by the Columbia Journal of Tax Law and a work in progress, both related to tax.

(See generally Exs. 3 & 6 to Pillard Decl.)

Pasachoff graduated from Harvard College summa cum laude, winning a prize in her

junior and senior years for the highest grades in the humanities. She received a master’s degree

in English from Yale University; a JD from Harvard Law School, graduating magna cum laude;

and an MPA from Harvard’s Kennedy School of Government. She clerked for Judge Jed S.

Rakoff of the Southern District of New York, Judge Robert A. Katzmann of the Second Circuit

Court of Appeals, and Justice Sonia Sotomayor of the Supreme Court. Like Brooks, she served

as a Climenko Fellow and Lecturer on Law at Harvard Law School for two years. At the time

she was hired, she had published two scholarly articles and a policy paper for the Brookings

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Institution, as well as having a “job talk” paper that had been accepted for publication. (See

generally Exs. 5 & 8 to Pillard Decl.)

ANALYSIS

I. GOVERNING LAW

A. SUMMARY JUDGMENT

“Summary judgment is proper if there is no genuine issue as to any material fact and the

moving party is entitled to judgment as a matter of law.” McKinley v. Bd. of Governors of Fed.

Reserve Sys., 647 F.3d 331, 335 (D.C. Cir. 2011); see Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 247–48 (1986). A dispute is “genuine” and precludes summary judgment only “if the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at

248.

When considering a motion for summary judgment, “the court must draw all reasonable

inferences in favor of the nonmoving party, and it may not make credibility determinations or

weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

Still, when the moving party has carried its initial burden of demonstrating the absence of a

genuine issue of material fact, the nonmoving party “must do more than simply show that there

is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986). It may not rely on “mere allegations or denials,” but

rather “must set forth specific facts showing that there is a genuine issue for trial.” Anderson,

477 U.S. at 248 (internal quotation marks and citation omitted). “[W]holly conclusory

statements for which no supporting evidence is offered” will not suffice. Carter v. Greenspan,

304 F. Supp. 2d 13, 21 (D.D.C. 2004) (citing Greene v. Dalton, 164 F.3d 671, 674–75 (D.C. Cir.

1999)). A moving party is entitled to summary judgment if the nonmoving party “fails to make a

showing sufficient to establish the existence of an element essential to that party’s case, and on
8
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986).

B. ADEA

The ADEA makes it “unlawful for an employer . . . to fail or refuse to hire . . . or

otherwise discriminate against any individual with respect to his compensation, terms,

conditions, or privileges of employment because of such individual’s age,” 29 U.S.C. §

623(a)(1), and includes persons forty years of age or older in the protected class. Id. at § 631(a).

The essential elements of a discrimination case under the ADEA are that “(i) the plaintiff [must

have] suffered an adverse employment action (ii) because of the plaintiff’s . . . age.” Baloch v.

Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008) (applying Brady v. Office of the Sergeant at

Arms, 520 F.3d 490 (D.C. Cir. 2008), to ADEA claims). To succeed on an ADEA claim, a

plaintiff must “prove by a preponderance of the evidence . . . that age was the ‘but-for’ cause of

the challenged employment action.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009).

“The burden of persuasion does not shift to the employer to show that it would have taken the

action regardless of age, even when a plaintiff has produced some evidence that age was one

motivating factor in that decision.” Id.

“In a refusal-to-hire or refusal-to-promote discrimination case, the McDonnell Douglas

prima facie factors are that (i) the employee belongs to a . . . protected class, (ii) the employee

applied and was qualified for a job for which the employer was seeking applicants; (iii) despite

the employee’s qualifications, the employee was rejected; and (iv) after the rejection, the

position remained open and the employer continued to seek applicants from persons of

complainant’s qualifications.” Brady, 520 F.3d at 493 n.1 (internal quotation marks and citation

omitted).

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 Once an employee has shown that he has suffered an adverse employment action, the

burden shifts to the employer to come forward with a “legitimate, non-discriminatory reason” for

the challenged employment action. Brady, 520 F.3d at 493. If the employer then moves for

summary judgment, the district court “must resolve one central 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 employee on the basis of race, color, religion, sex, or national origin?” Id. at 494.

The Court considers “‘(1) the plaintiff’s prima facie case; (2) any evidence the plaintiff presents

to attack the employer’s proffered explanation for its actions; and (3) any further evidence of

discrimination that may be available to the plaintiff . . . or any contrary evidence that may be

available to the employer.’” Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011) (quoting Aka,

156 F.3d at 1289). If the employee has not met his burden, the employer’s motion for summary

judgment is properly granted. Brady, 520 F. 3d at 497. However, “when the plaintiff offers

direct evidence of discriminatory intent, that evidence will ‘generally entitle a plaintiff to a jury

trial.’” Ayissi-Etoh v. Fannie Mae, No. 11-7127, 2013 WL 1352239, at *3 (D.C. Cir. Apr. 5,

2013) (quoting Vatel v. Alliance of Auto. Mfrs., 627 F.3d 1245, 1247 (D.C. Cir. 2011)); see also

George v. Leavitt, 407 F.3d 405, 413 (D.C. Cir. 2005) (“a plaintiff can show discrimination

either directly by persuading the [factfinder] that a discriminatory reason more likely motivated

the employer or indirectly by showing that the employer’s proffered explanation is unworthy of

credence” (internal quotation marks and citations omitted)). Direct evidence does not include

“stray remarks in the workplace,” “statements by nondecisionmakers,” or “statements by

decisionmakers unrelated to the decisional process itself.” Price Waterhouse v. Hopkins, 490

10
U.S. 228, 277 (1989) (O’Connor, J., concurring) (superseded in other respects by 1991

amendments to the Civil Rights Act).

C. D.C. Human Rights Act

The D.C. Human Rights Act (“DCHRA”) makes it unlawful for an employer to “fail or

refuse to hire, or to discharge, any individual; or otherwise to discriminate against any

individual, with respect to his compensation, terms, conditions, or privileges of employment”

whether “wholly or partially for a discriminatory reason based upon . . . age.” D.C. Code § 2-

1402.11. The protected class under the DCHRA is anyone aged 18 years or older. Id. § 2-

1401.02. D.C. courts have long interpreted the DCHRA congruently with the federal courts’

interpretation of the ADEA. See Washington Conv. Ctr. v. Johnson, 953 A.2d 1064, 1073 (D.C.

2008). Accordingly, under the D.C. statute, “the plaintiff’s age must have actually played a role

in [the employer’s decision-making] process and had a determinative influence on the outcome.”

Id. (quoting Reeves, 530 U.S. 133, 141 (2000)). Although the Supreme Court has recently

adopted a “but-for” causation standard in interpreting the ADEA, see Gross, 557 U.S. at 180, the

inquiry under the DCHRA remains whether age had “a determinative influence.” See Cain v.

Reinoso, 43 A.3d 302, 306 (D.C. 2012).

II. GEORGETOWN HAD A NONDISCRIMINATORY REASON FOR NOT
INTERVIEWING OR HIRING SPAETH

Spaeth alleges that Georgetown did not interview or hire him because of discrimination

based on age, while hiring three candidates approximately twenty-five years younger than

Spaeth, and, he asserts, less qualified. (See Compl. ¶ 166.) Georgetown denies that

discriminatory animus played any role in its decision and argues that Spaeth’s application was

rejected because “the materials he submitted did not reveal any interest or experience in

producing the kind of original legal research and scholarship that Georgetown – like other top-

11
tier law schools in the United States – requires.” (Def. Mot. at 3.) Thus, despite his impressive

credentials, he did not meet “one important (and non-discriminatory) qualification Georgetown

requires of its entry-level tenure-track hires.” (Id. at 17.) Spaeth claims that this explanation is

pretextual, arguing, inter alia, that he has “presented extensive evidence of ageist remarks that is

both relevant and compelling circumstantial evidence that age bias improperly permeated

Georgetown’s hiring process.” (Pl. Opp. at 38.) At the motions hearing, Spaeth also argued for

the first time that that these “ageist remarks” in fact constitute direct evidence of discriminatory

animus. (Tr. at 53-54.) For the reasons set forth, the Court concludes, based on the undisputed

evidence, that a reasonable jury could not find that Georgetown’s stated reasons for not

interviewing or hiring Spaeth were pretextual and that Georgetown intentionally discriminated

against him based on age.

A. Scholarship Was A Primary Job Qualification

Spaeth attacks Georgetown’s argument that he was not interviewed or hired because he

did not meet a primary qualification that it required of tenure-track entry-level candidates as

pretextual, maintaining that “[t]he record evidence shows that scholarship was not the paramount

criterion for evaluating entry level candidates.” (Pl. Opp. at 33.) He argues that Georgetown had

no “written requirements that scholarship weighed heavily, or outweighed teaching and service.”

(Id.) He refers to Pillard’s deposition testimony that “the standards of tenure are significant

because . . . we are hiring people we want to tenure,” and highlights that Georgetown’s tenure

standards, which were last published in 1994, state, among other things, that “education of

students . . . is the ‘primary mission’ of the law school.” (Pl. Opp. at 34 (quoting Georgetown

University Law Center, “Memorandum of Standards and Procedures for Tenure and Promotion”

(“Tenure Standards”), Ex. 5 to Pl. Resp. SOF, at 4).) He also suggests that Pillard’s August 21,

12
2010 memo to the hiring committee listed “subjective [hiring] criteria, which did not specify that

scholarship was paramount.” (Pl. Opp. at 33 (original emphasis).) He describes certain other

comments by current faculty as reflecting the use of subjective criteria for evaluating candidates.

(See id. at 34.) And, he argues that certain current faculty members strongly criticized the

scholarship of the three hires and he extrapolates that if those candidates were hired despite these

criticisms, scholarship must not be the “paramount” criterion. (Id. at 36.)

None of Spaeth’s arguments demonstrates that Georgetown’s stated emphasis on

scholarship is pretextual. On the contrary, the record is clear that scholarship was a primary

concern in Georgetown’s hiring process. The vast majority of exchanges among faculty

members about the candidates who were called back reflect extensive discussions about the

quality of their scholarly work. The fact that the faculty focused their debate on the merits of

various candidates’ scholarship only underscores its centrality as a qualification for the faculty.

Whether scholarship was more highly valued than teaching is beside the point, for it is evident

that it was an essential job qualification. Furthermore, Spaeth misconstrues many of the

comments by Georgetown faculty, especially Pillard’s memo to her colleagues, in which her

comments actually emphasize the significance of scholarship. 2 Finally, the lack of a written

requirement prioritizing scholarship in hiring is irrelevant, because there is no need to put in

writing what everyone knows: scholarship is, for better or worse, one of the overriding concerns

among elite law schools in making hiring decisions. Furthermore, the tenure standards from

which Spaeth selectively quotes to highlight the importance of teaching emphasize as much, if

2
Pillard wrote, “What are we looking for? You know as well as I do. Something like:
interesting, congenial, academically excellent candidates, likely to be talented and productive
faculty colleagues, whose background and experience make us think they will have something to
say to us and the wider world, and to our students.” (Pl. Resp. to SOF ¶ 27 (quoting Aug. 21,
2010 memo from Pillard to Hiring Committee, Ex. 21 to Pillard Dep., at 2) (emphasis added).)
13
not more, the centrality of scholarship to tenure and promotion decisions. (See Tenure

Standards, at 7-9.)

Admittedly, Spaeth, and perhaps others, do not agree with the criteria that law schools

use for hiring faculty. Spaeth thinks law students should be taught by practitioners and not by

academics. He cannot, however, dispute that scholarship is indeed a primary focus of law school

faculty hiring. He said as much in an opinion piece in the National Law Journal in 2011, where

he wrote:

Although law schools still need to teach fundamentals like constitutional law
where scholarly inclined 30-year-olds fresh out of a clerkship can focus their
lives, an increasingly imperative need is for skilled and experienced practitioners
teaching transaction-based classes. It is difficult to convincingly argue that a
teacher who has spent his or her entire career in academe is more qualified to train
transactional lawyers than those who have years of experience negotiating,
documenting and closing actual business deals.

(Nicholas J. Spaeth, At law schools, age bias co-exists with outdated practices, NATIONAL LAW

JOURNAL, Aug. 24, 2011, Ex. 20 to Spaeth Dep.) The thrust of this passage, and indeed of the

piece as a whole, is Spaeth’s belief that law schools are wrong to value scholarship over practical

experience and that this emphasis should be changed. As reflected in Spaeth’s article, there is no

real dispute that scholarship is one of the primary criteria that Georgetown uses in its entry-level

hiring, and it is not for the Court to denigrate this choice by the law school. See Jackson v.

Gonzales, 496 F.3d 703, 708-709 (D.C. Cir. 2007) (“[C]ourts must not second-guess an

employer’s initial choice of appropriate qualifications; rather the courts defer to the [employer’s]

decision of what nondiscriminatory qualities it will seek in filling a position.”) (internal

quotation marks and citations omitted).

Spaeth also argues that because Pillard recalls reviewing Spaeth’s application but does

not recall anything about her review, “this Court must find that there is no evidence showing that

14
Professor Pillard made any assessment of Mr. Spaeth’s scholarship or scholarly potential.” (Pl.

Opp. at 34.) However, a decisionmaker’s understandable lack of memory about a particular

employment decision does not render it pretextual or discriminatory. See, e.g., Pulczinski v.

Trinity Structural Towers, Inc., 691 F.3d 996, 1004 (8th Cir. 2012) (“That [the company

president] does not specifically remember terminating [plaintiff] does not mean that [the

employer] failed to articulate a legitimate, nondiscriminatory justification.”); E.E.O.C. v. Cintas

Corp., Nos. 04-40132, 06-12311, 2010 WL 3547965, at *9 (E.D. Mich. Sept. 3, 2010) (accepting

employer’s rationale for why it would not have hired an applicant when no managerial employee

specifically remembers interviewing the candidate). Since it cannot be disputed that scholarship

and scholarly potential were among the primary criteria that the committee applied to the three

hires and that Pillard applied during her perusal of more than 150 applications, Spaeth has no

basis for claiming that reference to this criteria was pretextual.

B. Spaeth Was Not “Significantly Better Qualified”

In order to succeed on his claim, Spaeth concedes that he must demonstrate that he

should have not only been interviewed but also been hired instead of the three who were

ultimately hired. (See Tr. at 53.) In order to prevail on such a “relative qualifications claim,”

Spaeth “must show that []he is significantly better qualified for the job than [the applicants]

ultimately chosen.” Grosdidier v. Broad. Bd. of Governors, 709 F.3d 19, 25 (D.C. Cir. 2013)

(original emphasis) (internal quotation marks and citations omitted). 3

3
It is useful to review the reasoning behind the “significantly better qualified” standard: “[w]hen
an employer says it made a hiring decision based on the relative qualifications of the candidates,
‘we must assume that a reasonable juror who might disagree with the employer’s decision, but
would find the question close, would not usually infer discrimination on the basis of a
comparison of qualifications alone. On the other hand, if a factfinder can conclude that a
‘reasonable employer would have found the plaintiff to be significantly better qualified for the
job, but this employer did not, the factfinder can legitimately infer that the employer consciously
15
 Faced with this exacting standard, Spaeth attempts to redefine what the job qualifications

are by elevating practical experience into a job qualification despite the undisputed evidence that

Georgetown does not emphasize extensive practical experience in its hiring of entry-level tenure

track professors. Georgetown is looking for a record and promise of scholarly publications,

which Spaeth simply did not have. Thus, he was not significantly more qualified than the three

hires. Rather, in Georgetown’s eyes, he was less qualified. 4 As Georgetown acknowledges,

Spaeth’s credentials were impressive and he had an elite pedigree, but his credentials did not

include scholarship, which was a necessity for being eligible for hire. (See Def. Mot. at 3-4.)

As noted by Pillard in her declaration, “Mr. Spaeth’s FAR form identified his interests as

financial institutions, insurance law and business associations and related topics, but the only

publication on his FAR form [was] a ‘Handbook of American Indian Law’ published in 1993,

which did not appear to relate to the subject areas for which he purportedly sought an academic

position.” (Pillard Decl. ¶ 25.) His oblique reference to “numerous other publications” on his

resume is hardly an effective marketing technique for an academic job (and even at this late date,

he has not provided evidence that he actually has authored a single article published in a

scholarly journal). More importantly, the only publication that Georgetown knew about at the

time of Pillard’s review was his work as an editor, not as an author, of the Handbook of

American Indian Law, which is not the type of scholarly work that was of interest to

selected a less-qualified candidate – something employers do not usually do, unless some other
strong consideration, such as discrimination, enters the picture.” Jackson, 496 F.3d at 707.
4
At the motions hearing, Spaeth’s counsel argued that the three candidates’ practical experience
pales in comparison to Spaeth’s experience of private practice in tax. (See Tr. 88.) And she
argued, based on that criteria, that he was “higher qualified” as compared to someone who had
“two-and-a-half years” as an associate in a law firm. (Id.) But again, there is no support for the
argument that Georgetown considered years in private practice to be a significant benefit to a
candidate’s application.
16
Georgetown. See, e.g., Edwards v. Joe Cullipher Chrysler-Plymouth, Inc., No. 86-89-CIV-4-H,

1990 WL 484147, at *2 (E.D.N.C. Sept. 28, 1990), aff’d, 932 F.2d 963 (4th Cir. 1991)

(“Assuming the plaintiff’s characterization of his [work] experience is correct, it is irrelevant

because he did not provide this information to the defendants when the hiring decisions were

made.”); Hoff v. County of Erie, No. CIV-76-477E, 1981 WL 308, at *8 (W.D.N.Y. June 18,

1981) (dismissing discrimination claim where plaintiff “did not show to the employer at the time

she applied that she was qualified”).

By contrast, the three successful candidates all had publications of the kind that matters

in legal academia – “original, scholarly work” that had been or was to be published in scholarly

journals. (Pillard Decl. ¶ 25.) Brooks had one article accepted for publication by the Columbia

Journal of Tax Law, a second underway, and a detailed research agenda. (See Exs. 3 & 6 to

Pillard Decl.) Thus, Spaeth’s argument that Brooks had “zero publications” is just wrong. (Tr.

at 56.) Plus, his specialty was tax, which was of great interest to Georgetown. (See Exs. 3 & 6

to Pillard Decl.) Pasachoff had two scholarly publications and a third accepted for publication,

as well as a detailed research agenda. (See Exs. 5 & 8 to Pillard Decl.) Grinberg already had

five scholarly publications in the tax field at the time, as well as a detailed research agenda, and

he too was interested in teaching tax. (See Exs. 4 & 7 to Pillard Decl.)

There is no need for the Court to conduct a more detailed inquiry into the comparators’

qualifications, for “[o]nce the employer has articulated a non-discriminatory explanation for its

action . . . the issue is not the correctness or desirability of the reasons offered . . . [but] whether

the employer honestly believes in the reasons it offers.” Fischbach v. D.C. Dep’t of Corrections,

86 F.3d 1180, 1183 (D.C.C. 1996) (internal quotation marks and citation omitted). This

admonition is particularly apt when faced with discrimination claims in the context of university

17
tenure decisions. See, e.g., Tanik v. S. Methodist Univ., 116 F.3d 775, 776 (5th Cir. 1997);

Kumar v. Bd. of Trustees, Univ. of Mass., 774 F.2d 1, 10 (1st Cir. 1985); Zahorik v. Cornell

Univ., 729 F.2d 85, 92-94 (2d Cir. 1984). The Supreme Court has cautioned,

If a federal court is not the appropriate forum in which to review the multitude of
personnel decisions that are made daily by public agencies, far less is it suited to
evaluate the substance of the multitude of academic decisions that are made daily
by faculty members of public educational institutions – decisions that require “an
expert evaluation of cumulative information and [are] not readily adapted to the
procedural tools of judicial or administrative decisionmaking.”

Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 226 (1985) (internal quotation marks and

citations omitted) (also noting in this context a “responsibility to safeguard [educational

institutions’] academic freedom, a special concern of the First Amendment” (internal quotation

marks and citations omitted).) These same concerns apply to claims for failure to hire for a

tenure-track position. Notably, “the number of factors considered in tenure decisions is quite

extensive” and “tenure decisions are a source of unusually great disagreement.” Zahorik, 729

F.2d at 92-93. Moreover, “[w]here the tenure file contains the conflicting views of specialized

scholars, triers of fact cannot hope to master the academic fields sufficiently to review the merits

of such reviews and resolve the differences of scholarly opinion.” Id. at 93. Georgetown has

articulated the reasons it considered Pasachoff, Brooks, and Grinberg to be more qualified than

Spaeth, and, in the realm of scholarship and demonstrated scholarly potential, they were.

Therefore, Spaeth cannot show, according to the legally legitimate criteria that Georgetown used,

that he was “significantly better” (or even “more”) qualified than the three hires.

C. Georgetown Focused on Hiring Tax Candidates

It is also undisputed that Georgetown recognized that it had a need to hire tax scholars.

The record is replete with discussions about looking for tax candidates, and two out of the three

candidates who were ultimately hired were hired to teach tax. (See Def. SOF ¶ 53.) Georgetown

18
submits that Spaeth cannot now claim that he was a viable tax candidate who was rejected only

based on his age, because he did not even indicate that he was interested in teaching tax or that

he had any tax-related publications on his FAR form. (See Defendant’s Reply in Support of its

Motion for Summary Judgment (“Def. Reply”) at 12.) While Spaeth dispenses with this

argument as being “false” (see Pl. Opp. at 35), he simply cannot escape the undisputed fact that

tax was not listed on his FAR form. Rather, he insists that because his resume stated that he

would be teaching at the University of Missouri School of Law “in the areas of financial services

regulation, securities and taxation,” and because it showed that he had served as general counsel

at “two Fortune 500 companies directly involved in tax issues,” Georgetown should somehow

have known that he could and would teach tax. (Id.) Spaeth’s position is untenable. In response

to three separate prompts on the FAR form, Spaeth did not list tax as something he would be

interested in or willing to teach, nor did he list any scholarly publications relating to tax on his

FAR form or his resume. (See Spaeth FAR Form & Spaeth Resume, Ex. A to Spaeth Decl.)

Georgetown was not required to divine such an interest when Spaeth did not even bother to

mention it as a topic of teaching interest, and its failure to do so can hardly be used as evidence

of discrimination.

Spaeth also argues that this “‘criterion’ could not have been that important, because

neither of the tax hires had any experience in teaching tax.” (See Pl. Opp. at 35.) This is

oversimplification. Just as Georgetown was first and foremost interested in scholars, it was first

and foremost interested in tax scholars who were also interested in and willing to teach tax. 5

5
Professor Adam Levitin explained, “[W]e have a very large tax LLM program that is critical to
the school’s finances and it’s very hard . . . to find people who are really writing scholarship in
the tax area, and . . . the scholarship is very important because that’s what ultimately sort of
signals the prestige of the program.” (Levitin Dep. at 31-32.) He noted further, “[T]ax is just
kind of a standing need . . . there is not a sufficient supply of tax candidates who both can
19
Both Brooks and Grinberg had published articles on tax topics and submitted detailed research

agendas entirely focused on tax scholarship. (See generally Exs. 3, 4, 6 & 7 to Pillard Decl.)

There is no evidence that Spaeth had published a single scholarly article related to tax, but more

significantly, Georgetown had no reason to think, based on the only information available to it

on the FAR form, that he had any interest in teaching tax or that he had any publications or a

research agenda with a tax focus. While Spaeth had some experience teaching tax and had work

experience in that field, this does not translate into a scholarly interest in tax, or even an interest

in teaching tax, given Spaeth’s glaring omission of any mention of tax when asked about his

teaching interests.

D. Spaeth’s Application was Perfunctory

As argued by Georgetown, Spaeth, in stark contrast to the three successful candidates, did

nothing to distinguish himself from the 800 applicants who submitted FAR forms and resumes

through AALS. (See Def. Mot. at 5.) Significantly, he did nothing to indicate an interest in

Georgetown, except to upload his FAR form and his resume into the AALS system, where it was

available for download by all 172 member law schools, including Georgetown. (See id.) As

explained by Pillard, who served as the chair of the entry-level committee, “the most competitive

candidates typically prepare detailed ‘research agendas,’” provide “copies of (or hyperlinks to)

scholarly articles they have already authored or are in the process of writing,” and commonly

“contact law schools directly in advance of (or outside of) the AALS interview process to

express their specific interest in a particular school.” (See Pillard Decl. ¶ 9.) Because the FAR

system does not allow applicants to direct their applications to a particular school, “direct

understand the plumbing, as it were, the actual details of tax law, and can connect it with either
theory or policy. . . [I]t’s easy enough to find people who . . . can say something and make a
policy move, but to find someone who can connect them in scholarship is actually very
difficult.” (Id. at 180-181.) (See also Pillard Dep. at 58 (Georgetown Dean told Pillard to look
for “the strongest tax scholars you can identify” (emphasis added).)
20
appeals to a law school can be a useful way for a candidate to make his or her application stand

out and be noticed.” (See id. ¶ 10.)

Spaeth himself followed this common practice when he provided a brief research agenda

to the University of Missouri on September 26, 2010, a month before the Faculty Recruitment

Conference (see Ex. 6 to Def. Praecipe), and he also wrote letters directly to seven law schools in

the Midwest and the West to express his interest. (See Spaeth Dep. at 47-48; see also id. at 47

(Spaeth acknowledging that he was aware that a candidate could write directly to a law school).) 6

Notably, when asked during his deposition why he did not write directly to Georgetown, Spaeth

replied forthrightly, “Because at that point in time, I didn’t really think that I wanted to live in

Washington.” (Spaeth Dep. at 48-49.)

By contrast, the record shows conclusively that the three candidates who were hired, and

one other candidate who was seriously considered, all sent letters directly to Georgetown

expressing their interest in teaching there and enclosing their resumes and lengthy three- to five-

page, single-spaced research agendas. (See Exs. 3, 4, & 8 to Pillard Decl; Ex. 13 to Pillard Dep.)

6
To excuse his lack of effort, plaintiff’s counsel represented that when Spaeth wrote directly to
several law schools “the responses he got back [were] that we can’t do it this way, go through
AALS.” (Tr. at 76.) However, this assertion is flatly contradicted by Spaeth’s conduct, as well
as by the correspondence that has been filed as exhibits in this case, all of which reflects
acceptance of his direct application in both 2009 and 2010 (See, e.g., Oct. 20, 2010 email from
Stacy Leeds, University of Kansas School of Law, to Spaeth, Ex. 1 to Def. Praecipe (“Thanks for
contacting me and I apologize for the delay. I’ll forward this to our full committee for review.”);
Oct. 19, 2010 email from Nancy Gregory, Arizona State University College of Law to Spaeth,
Ex. 2 to Def. Praecipe (“Thank you for your application for a faculty position here at the College
of Law. I have received your emailed material and will pass it along for review by the Chair and
the Appointments Committee.”); Oct. 22, 2010 email from Debra Thurman, University of
Oregon School of Law to Spaeth, Ex. 4 to Def. Praecipe (“Thank you for your letter expressing
interest in a faculty position at the University of Oregon School of Law. We are delighted that
you are interested in exploring opportunities with us, and we look forward to considering your
application.”); May 17, 2009 email from Eric Janus, University of Minnesota School of Law, to
Spaeth, Ex. 10 to Def. Praecipe (“Thanks very much for your email note and resume . . . At this
point, our future hiring is quite uncertain. I’ll keep your materials on file, and urge you to keep
in touch, particularly in the fall, as we get more clear on our plans.”).
21
The three who were hired also had academic contacts send unsolicited recommendations directly

to Georgetown. (See Exs. 3, 4, & 8 to Pillard Decl.)

In the face of this evidence, Spaeth asserts, without support, that Pillard’s affidavit is

“false.” (See Pl. Opp. at 35.) He baldly states that “[t]he resumes, research agendas, and writing

sample(s) that Georgetown produced in discovery were those that the 25 interviewees provided

after Georgetown notified them that they had been selected for an interview, and requested that

they provide an updated resume, along with a research agenda and writing sample(s).” (Pl. Resp.

to SOF ¶ 19 (emphasis in the original).) Spaeth provides no record citation for that assertion,

and it is plainly incorrect with respect to the four applications (the three hires plus one additional

candidate) that have been filed with the Court. (See Exs. 3, 4, & 8 to Pillard Decl; Ex. 13 to

Pillard Dep.) While the record does not reflect how many of the 800 applicants or the twenty-

five interviewees actually submitted these types of materials prior to the first-round interviews,

Spaeth wants to hold Georgetown responsible for this omission. He suggests that but for

Georgetown’s “destruction” of the full applications for all the individuals who applied through

AALS, with the exception of the twenty-five interviewees, he would be able to show that his 800

comparators did no more than he did. (See Pl. Opp. at 35-36.)

This argument is without merit. First, the FAR forms were the property of AALS, so

Georgetown had no obligation to retain them, and even though Spaeth issued a document

subpoena to AALS, he did not seek their production. (See Def. Reply at 11 n.4.) Second,

Georgetown did produce the resumes for the twenty-five candidates who were selected for an

interview (see Plaintiff’s Sur-reply Brief (“Pl. Sur-reply”) at 6), but the Court has no information

about what, if any, additional materials were sent by these candidates before the interviews.

Thus, since Spaeth has the burden to show pretext, the absence of more extensive documentation

22
does not undercut Georgetown’s position that applicants commonly contacted Georgetown prior

to the selection of interviewees.

Spaeth asserts that neither AALS nor Georgetown notified applicants that they were

required to submit a research agenda, nor was it a requirement, and that “the practice is that the

detailed research agenda and writing sample(s) are not provided until after a candidate is selected

for an initial interview.” (See Pl. Opp. at 35.) As noted, Spaeth provides no evidence to support

this assertion as to the practice, and it is contradicted by the only relevant evidence in the record:

Pillard’s declaration and the four applications, including those of the three hires, that

Georgetown received before selecting the interviewees.

In essence, Spaeth objects to this informal system, arguing that “this creates a subjective

hiring system which discriminates against older candidates who were not recently in a fellowship

program and are not recent mentees of law school professors, thereby favoring younger, recent

law school graduates.” (Pl. Resp. SOF ¶ 59.) But there is no “this” there. What Georgetown

describes is the common sense proposition that a job candidate in a highly competitive market

has to make a serious effort to come to an employer’s attention and to distinguish himself from

the pack by sending impressive, relevant materials, rather than a barebones application, and by

having mutual and well-respected acquaintances, professors, judges, or employers advocate on

his behalf by contacting the law school directly. This reality does not mean that employers are

discriminating. See, e.g., Jackson v. Winter, 497 F. Supp. 2d 759, 769 (E.D. Va. 2007)

(comparing plaintiff’s poorly written resume to successful applicant’s well-written and detailed

resume). Furthermore, there is no legal or factual basis for Spaeth’s claim that the system relies

on subjective, legally impermissible criteria. See Grosdidier, 709 F.3d at 26 (“the evidence of an

allegedly ‘arbitrary’ selection process is not probative of pretext”); Fischbach, 86 F.3d at 1183

23
(without finding evidence of pretext, “the court must respect the employer’s unfettered discretion

to choose among qualified candidates”); Chappell-Johnson v. Bair, 358 F. App’x 200, 201 (D.C.

Cir. 2009) (“there is no bar to considering subjective factors”).

Furthermore, employment decisions based on factors that correlate with age do not

necessarily prove age discrimination. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 611 (1993)

(“Because age and years of service are analytically distinct, an employer can take account of one

while ignoring the other, and thus it is incorrect to say that a decision based on years of service is

necessarily ‘age based.’”) The fact that more young people are likely to go through a fellowship

program, and as a result, have credentials and connections that give them a step up in the

academic job market, does not equate with intentional age discrimination.

During the motions hearing before this Court, Spaeth’s counsel also argued that because

Georgetown hired candidates who did not apply only through AALS, it is pretext for the school

to claim that they are following the AALS process. (See Tr. at 82.) But Spaeth has it backwards.

Georgetown has not defended against Spaeth’s discrimination claim by arguing that it followed

the AALS process exclusively; on the contrary, it has argued that Spaeth’s application package

did not stand out from the hundreds of other applications that it received primarily, but not

solely, through AALS. (See Def. Mot. at 17-18.) The fact that Georgetown interviewed and

hired individuals who applied outside of the AALS process, or who submitted other materials in

addition to their FAR form and resume, is not evidence of pretext or discrimination.

Many hiring processes, including the process for hiring law clerks, may not be ideal, but

for any highly competitive job, it is common for applicants to make an effort to distinguish

themselves from those who apply only via the computerized application system. Whether the

use of direct or indirect contacts unfairly favors some does not mean that an employer’s use of

24
information above and beyond the FAR form and a resume can be equated with age

discrimination. Spaeth makes an assumption that he was obviously qualified for an interview,

and argues he would have provided additional (although undefined) information once he had

been selected for an interview. Not only is his assumption unfounded, but his own conduct

belies the notion that an applicant could or should limit himself to the AALS process when

applying to elite schools.

In sum, no reasonable jury could conclude, based on the undisputed evidence, that age

was the “but-for” cause of – or even that age had a “determinative influence” on – Georgetown’s

decision not to interview or hire Spaeth. Simply put, Spaeth has not demonstrated the necessary

qualifications for an entry-level tenure-track position at the school. He had no record of

scholarly work and did not demonstrate potential for producing such work in the future. He did

not express an interest in tax, so he would not have been considered a candidate in the area that

Georgetown particularly wanted to fill. He was not significantly more qualified than his

comparators; in fact, he was less qualified than them based on Georgetown’s legitimate emphasis

on scholarship. And, he expressed no real interest in Georgetown by contacting the school

directly, nor did he show any real commitment to scholarly research by providing a research

agenda to the school. Curiously, he did both with respect to a limited number of schools in the

West and Midwest, because, after all, he didn’t really “want[] to live in Washington.” (Spaeth

Dep. at 48-49.) Given this record, there is no need for the Court to consider other evidence since

any such evidence is not relevant to the decision not to interview or hire him. Thus, as far as the

“one central question” under Brady, 520 F.3d at 494 – “Has the employee produced sufficient

evidence for a reasonable jury to find that the employer’s asserted non-discriminatory reason was

25
not the actual reason and that the employer intentionally discriminated against the employee on

the basis of” age – the Court has no difficulty answering that Spaeth has not.

E. Other Evidence

Spaeth’s submission of what he refers to as other evidence of Georgetown’s “pervasive

bias against older entry level applicants” (see Pl. Opp. at 37) – statistical evidence; the

involvement of Adam Levitin, who Spaeth argues was motivated by age bias; and allegedly

ageist remarks by various members of the Georgetown faculty – is unavailing, for none of this

evidence can overcome the fact that he was not a competitive candidate for the job. But even if

the Court needed to consider this evidence, it simply does not suggest that pervasive bias existed

in the hiring process for entry-level tenure-track law professors at Georgetown.

1. Statistical Evidence

Spaeth argues that “[t]he structure of the faculty hiring at Georgetown directly facilitated

age discrimination, since the entire hiring process was geared towards interviewing and hiring

young applicants.” (Pl. Opp. at 37.) In support, he points to the fact that “all but one of the

twenty-five entry level applicants interviewed in 2010 were under 40 (the exception was only

46),” and “all but one of the twenty-two entry level hires over the past decade were under 44 (the

exception was only 44).” (Id. at 38.) These statistics are meaningless, however, without

reference to the ages of the applicant pool. Pillard testified that “people who want to be a

[p]rofessor do often identify that relatively early in their career and so . . . we see a lot more

entry level people in the[ir] 30s than in their 60s[.]” (Pillard Dep. at 53.) Without more specific

information about the applicant pool, Spaeth’s reference to the ages of the pool of interviewees

and hires is irrelevant for proving discrimination. See, e.g., Henson v. Liggett Group, Inc., 61

F.3d 270, 276 (4th Cir. 1995) (“In the absence of demographic information about the pool of

26
employees at Liggett and the pool from which employees were hired or the positions into which

they were hired, the figures offered by Henson are not proof of discrimination.”)

It is revealing that when he addresses Georgetown’s history with lateral hires, Spaeth

focuses not on their age but on their practical experience, noting that “of the sixteen lateral hires

over the past decade, only three had more than ten years’ experience before joining academia.”

(See Pl. Opp. at 38.) This statement suggests that Spaeth’s real beef is with legal academia’s

disregard for practical experience, not age discrimination. Moreover, as Georgetown points out,

the median age of lateral hires over the past ten years is 52, which is well within the protected

class of over-40 and not much younger than Spaeth was when he applied. (Def. Reply at 14-15

(citing Declaration of Matthew Radler (“Radler Decl.”) ¶ 8).) Spaeth argues in his National Law

Journal article that “[t]he root cause of this discrimination is the way new hiring is done.

[Current faculty] understandably resent older practitioners who have not paid their dues in the

same way they have and may also perceive them as a competitive threat to the entire tenure

system.” (Ex. 20 to Spaeth Dep.) This analysis, if anything, undercuts Spaeth’s position,

suggesting that the problem is less that “older practitioners” are older, and more that they are

practitioners.

Georgetown’s use of statistics is equally unavailing. Georgetown submits that

For entry-level positions, the statistical affidavit attached to the Opposition shows
that none of the individuals hired by Georgetown in the past ten years was under
30 at the time. In fact, the median age of all such individuals at [the] time they
began their employment was 35 – not within the over-40 “protected class” under
the ADEA but certainly not as young as Spaeth would make them out to be.
Furthermore, within the past five years, Georgetown has hired two entry-level
professors who were 40 or older at the time they began their employment,
including one who was 46.

(Def. Reply at 14 (citing Radler Decl. ¶ 5).) These statements are essentially irrelevant. The

number of hires under or over 30 years of age, or the fact that the median age of hires was 35, is

27
meaningless under the ADEA, which defines the protected class as being “over 40.” 29 U.S.C.

§§ 621. Nor is the fact that Georgetown has hired two candidates in their early to mid-40s of

much relevance, as they are still at least 15 to 20 years younger than Spaeth. Age is different

from other classifications. As articulated by the Supreme Court:

[The ADEA] does not ban discrimination against employees because they are
aged 40 or older; it bans discrimination against employees because of their age,
but limits the protected class to those who are 40 or older . . . Because the ADEA
prohibits discrimination on the basis of age and not class membership, the fact
that a replacement is substantially younger than the plaintiff is a far more reliable
indicator of age discrimination than is the fact that the plaintiff was replaced by
someone outside the protected class.

O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996). See also Kralman v.

Ill. Dep’t of Veterans’ Affairs, 23 F.3d 150, 155 (7th Cir. 1994) (“Indeed, it is considered

‘hornbook law’ that the ADEA action can be based on discrimination between older and younger

members of the protected class.”) Finally, without knowing anything about the applicant pool,

assertions about the number of individuals over 40 interviewed or hired provides no assistance to

the Court.

2. Roles of Pillard and Levitin

Georgetown argues that Pillard was the sole decisionmaker with respect to Spaeth’s

application for employment and that she had a legitimate, non-discriminatory reason for not

selecting him for an interview – namely, that “the materials he submitted did not show he could

meet” Georgetown’s requirement that entry-level tenure-track hires have “the ability to produce

and interest in producing original legal scholarship.” (Def. Mot. at 17.) In the first instance,

Spaeth contests that Pillard was the sole decisionmaker by arguing that “[t]he record evidence

shows that . . . at least two other members of the Entry Level Appointments Committee reviewed

her subset of the FAR forms and resumes in order to identify additional candidates in the fields

28
that Georgetown had particular hiring needs, i.e., tax and business law.” (Pl. Opp. at 33.) It is

uncontested that two other professors, Tushnet and Teitelbaum, “reviewed materials submitted

by some candidates whose last names began with the letter ‘S.’” (Def. Reply at 7.) Also, it

appears that their review was not limited to “target searches” of the FAR forms for tax

candidates (id.), but was in fact broader. (See Pl. Sur-reply at 3.) Nonetheless, there is no

evidence to suggest that either committee member specifically looked at Spaeth’s form.

Furthermore, there is no evidence that Tushnet or Teitelbaum harbored any discriminatory intent

so any dispute on this issue is not material. (See Def. Resp. SOF ¶ 20.)

Of more importance from Spaeth’s point of view is his allegation that Professor Adam

Levitin was involved in the hiring process and harbored discriminatory animus, as evidenced by

several age-related, or, in Spaeth’s view, “ageist” statements and by his presentation of age-

related demographic data in 2011 about the Georgetown faculty. (See Pl. Opp. at 39, 41.) With

respect to the 2010-11 cycle, Levitin was not on the entry-level hiring committee, but he was a

member of the ad hoc tax committee, which was tasked with assisting in the recruitment of tax

candidates. (See Pl. Resp. SOF ¶ 28. But see Levitin Dep. at 148 (“we did not understand our

charge at all as being related to entry level”).) As evidence of Levitin’s involvement in the

decision-making process, Spaeth points to a September 29, 2010 email in which Pillard mentions

having spoken with Levitin to get his “input” on specific tax candidates. (See Sept. 29, 2010

email from Pillard to Hiring Committee, Ex. 9 to Pillard Dep.) In addition, Spaeth suggests that

a February 8, 2011 email from Levitin to Pillard addressing “entry-level hiring in general”

indicates that Levitin played a role in evaluating non-tax candidates as well. (See Pl. Resp. SOF

¶ 61 (citing Levitin Dep. at 135 & Feb. 8, 2011 email from Levitin to Pillard, Ex. 9 to Levitin

Dep., at 1).)

29
 This evidence does not support an inference that Levitin reviewed Spaeth’s application.

Levitin’s involvement in the hiring process occurred after the initial screening of applications.

The September 29, 2010 email reflects Pillard’s solicitation of input from Levitin regarding only

a select number of tax candidates whose applications had already been designated by members of

the entry-level hiring committee for consideration, and the February 28, 2011 email reflects

Levitin’s impressions of the candidates who had already come for call-back interviews. Since

Spaeth’s application never made it past the very initial culling stage, much less through a

screening interview, he was not among the candidates referenced in either email. Therefore,

Spaeth has not presented sufficient evidence to sustain the inference that anyone other than

Pillard was responsible for the decision not to interview him. However, even assuming

arguendo that others somehow influenced Pillard’s decisionmaking process, this does not change

the fact that Spaeth did not meet Georgetown’s threshold requirements.

Spaeth also argues that Levitin, as well as Levitin’s mentor, former Georgetown

Professor William Bratton, who led the hiring committee prior to Pillard, focused on hiring

“promising young scholars” and that this equates with pervasive age bias. As an example,

Spaeth points to Levitin’s presentation of two demographic analyses of Georgetown’s faculty at

two faculty meetings in the fall of 2011 as “confirm[ing] the pervasive bias against older

applicants for entry level positions at Georgetown.” (Pl. Opp. at 24.) He also attempts to link

these analyses with Professor Bratton’s undated memo, which Spaeth characterizes as focusing

on hiring “young” faculty. (Id.) Spaeth’s argument depends on mischaracterizations and leaps

of logic that the Court is unwilling to entertain.

First, neither analysis is focused exclusively on the age demographics of the faculty. Age

is certainly highlighted, but so are gender; racial diversity; overall growth; comparative growth

30
in Legal Research and Writing positions versus academic positions; numbers of full-time faculty

versus visiting faculty that teach 1L courses; numbers of new hires; entry-level versus lateral

hiring; causes of faculty departures; and business law faculty age demographics and attrition.

(See generally Adam Levitin, “GULC Faculty Demographics: Considerations in Hiring,” Ex. 10

to Crosno Decl; Aug. 31, 2011 email from Levitin with attachment “Faculty Demographics,” Ex.

16 to Levitin Dep.) It is a gross oversimplification to suggest that the sole focus of these

analyses was age demographics. Second, as Georgetown accurately describes, “[t]he discussion

of the age of the faculty was descriptive and accurate, and presented as aggregate data for

forecasting purposes.” (Def. Resp. SOF ¶ 9.) There is no evidence in the record that Levitin

used this information to suggest that Georgetown should discriminate against older applicants in

hiring, firing, or any other employment action.

Levitin circulated the demographic analyses during the 2011-12 academic year, when he

took over as chair of the hiring committee, a year after the decision not to interview Spaeth. That

fact alone does not render the evidence irrelevant, if it painted a picture of a “discriminatory

atmosphere [that] pervades the workplace and infects the company’s personnel decisions.”

Kelley v. Airborne Freight Corp., 140 F.3d 335, 347 (1st Cir. 1998). See also Parker v. Sec’y,

U.S. Dep’t of Hous. & Urban Dev., 891 F.2d 316, 322 (D.C. Cir. 1989) (“a discriminatory

atmosphere . . . could serve as circumstantial evidence of individualized discrimination.”).

However, the evidence here paints no such picture.

Furthermore, it is understandable that Georgetown would be concerned about an “aging

faculty” to the degree that a spate of retirements could leave it short of faculty to teach the core

curriculum. As Levitin explained when he was deposed, “one of the concerns is that if we don’t

. . . do steady hiring in the business law area, that we . . . could find ourselves in a position where

31
we . . . are severely understaffed all of a sudden because . . . we are going to, just as an actuarial

matter, have in the next ten years a wave of people likely retiring or leaving the faculty for other

reasons.” (Levitin Dep. at 205-06.) Similar facts were presented in another recent case in this

jurisdiction, in which the plaintiff complained about statements regarding the need to “recruit

younger broadcasters who would be around for years to come,” in view of the fact that several

broadcasters were approaching retirement. Nyunt v. Tomlinson, 543 F. Supp. 2d 25, 38 (D.D.C.

2008), aff’d, Nyunt v. Chairman, Broad. Bd. of Governors, 589 F.3d 445 (D.C. Cir. 2009). In

that case, the district court found that “the comments [plaintiff] cites were not discriminatory on

their face, and nothing in the record indicates that the failure to hire him was motivated by

‘inaccurate and stigmatizing stereotypes’ about members of his protected classes, such as a lack

of productivity or decreased competence.” Id.; see also Breen v. Mineta, No. 05-654, 2005 WL

3276163, at *4-5 (D.D.C. Sept. 30, 2005) (employer’s statement that “[a]lmost 40 percent of

flight service specialists [are] eligible to retire” was not evidence of discrimination because it

identified “the probability of attrition of large numbers of experienced personnel in the

foreseeable future” but no “inaccurate and denigrating generalizations about age”). 7

Finally, Spaeth mischaracterizes the undated Bratton memo. Spaeth suggests that “[t]hat

memo explained that the Entry Level Appointments Committee was to focus on maintaining

‘young cohorts’ in the faculty,” which he takes to mean that older faculty should not be hired.

(See Pl. Opp. at 24.) When read in context, however, it is clear that far from making a case for

hiring only young people, Bratton’s memo sought to lay out competing institutional priorities in

hiring. He noted, in the process of describing one of those priorities – entry-level hiring – that

7
The Court rejects Spaeth’s assertion that the demographic analyses bear any resemblance to the
spreadsheet at issue in Barnett v. PA Consulting Group, Inc., No. 11-7136, slip op. at *6 (D.C.
Cir. May 7, 2013), for the reasons discussed infra at 35-36.
32
“[m]ost peer group schools pride themselves on their young cohorts” and described

Georgetown’s entry-level hiring as “very successful of late.” (Pl. Resp. SOF ¶ 28 (quoting

Bratton Memo, Ex. 15 to Levitin Dep., at 1).) As with many of the examples of “ageist remarks”

discussed below, Bratton is using “young” as synonymous with “entry-level” because in most

cases that is the reality. As Pillard testified, “people who want to be a [p]rofessor do often

identify that relatively early in their career and so . . . we see a lot more entry level people in

the[ir] 30s than in their 60s[.]” (Pillard Dep. at 53; see also Levitin Tr. at 266 (a “typical law

professor starts a career in their 30s”).) An argument for hiring “young scholars,” when most

applicants for entry-level positions have historically been young, does not, in and of itself,

signify that he is biased against older candidates. See, e.g., Henson, 61 F.3d at 276 (“[T]he

hiring of young employees into entry level positions is reasonable since younger people are more

apt to apply for such positions.”). Thus, whether Pillard was the sole decisionmaker, as argued

by Georgetown, or whether the hiring process was influenced by Bratton and Levitin, as argued

by Spaeth, is of little consequence since the evidence does not support Spaeth’s claim of

“pervasive bias against older applicants for entry level positions at Georgetown.” (Pl. Opp. at

24.)

3. “Ageist Remarks”

In addition to relying on Levitin’s demographic analyses and Bratton’s memo, Spaeth

argues that remarks by members of the Entry Level Appointments Committee, Levitin, and other

faculty members demonstrate that “age bias improperly permeated Georgetown’s hiring

process.” (Id. at 38.) The Court does not agree. While Spaeth has presented evidence of age-

related remarks, he consistently takes those remarks out of context and misconstrues their

meaning, or he mistakes merely descriptive statements for derogatory remarks. The bulk of the

33
“ageist” remarks that Spaeth points to are merely descriptions of young people as young.

Additionally, reference to age has some relevance in the academic hiring context, insofar as it

constitutes a proxy for years producing scholarship, allowing comparisons within “rough age

cohorts” of the relative complexity and quantity of the scholarship. (See Levitin Dep. at 266-67.)

For example, Spaeth mentions a reference to one candidate as “a talented and productive

young scholar.” (See Pl. Resp. SOF ¶ 76(b) (citing Pillard Dep. at 278 & Ex. 48 to Pillard Dep.,

at 11).) It is not discriminatory to call a 31-year-old academic a “young scholar.” It is

descriptive, and also suggests that while “productive,” the individual is likely to have a more

limited body of work than a professor who has been producing scholarship for thirty years. Nor,

in describing other candidates as a “young man,” “young tax scholars,” “three relatively young,

quite promising lawyers,” and so on, does Georgetown demonstrate a bias in favor of hiring

young candidates. (See Pl. Opp. at 14-17) The general pool of applicants tends to be relatively

young, those selected for interviews were young, and those hired were young. That candidates

who are young are described as being young does not provide sufficient evidence for a jury to

find that Georgetown has a discriminatory hiring process. These descriptive terms do not come

close to the discriminatory comments at issue in the cases cited by Spaeth. See, e.g., Talavera v.

Shah, 638 F.3d 303, 311 (D.C. Cir. 2011) (statement demonstrating discriminatory animus by a

decisionmaker); Kelly v. Airborne Freight Corp., 140 F.3d 335, 347 (1st Cir. 1998) (statement by

decisionmaker expressing desire to “get rid of” older workers); Krodel v. Young, 748 F.2d 701,

710 (D.C. Cir. 1984) (statement by decisionmaker indicating preference for hiring younger

workers).

The remarks attributed to Georgetown faculty more closely resemble those in Nyunt,

where the court found that supervisors’ references to the successful applicant as “a star on the

34
rise” and “a rising talent” were not evidence of discrimination, based on the precept set forth by

Judge Posner: “We do not hold that any and all words in praise of youth expose an employer to a

trial under the age discrimination law.” See Nyunt, 543 F. Supp. 2d at 38 (quoting Shager v.

Upjohn Co., 913 F. 2d 398, 402 (7th Cir. 1990)); see also Berquist v. Wash. Mut. Bank, 500 F.3d

344, 351-52 (5th Cir. 2007) (comment about desire to “attract younger talent” was not evidence

of discriminatory intent but rather was “a broad statement not directed to any particular

employee about [supervisor’s] management goals and remote in time from [plaintiff’s] firing”).

Spaeth focuses particularly on what he refers to as “ageist” remarks by Levitin. The

Court has reviewed each of the comments and finds that in each instance they are merely

descriptive or have been taken out of context. For example, Levitin engaged in an email

exchange with a colleague mocking another older colleague by referencing his dentures. (See Pl.

Resp. SOF 76(c) (quoting Ex. 24 to Levitin Dep.).) However, as Levitin explained during his

deposition, he was describing something that actually occurred, rather than using dentures in a

metaphoric sense to denigrate a colleague for his age. (See Levitin Dep. at 285-91.) In a list of

applicants that Levitin compiled during the 2011-12 hiring process, he described a few of them

as “older.” (Pl. Resp. SOF ¶ 76(d) (citing Levitin Dep. at 250, 252 & Ex. 20 to Levitin Dep.).)

That word was one among many varied descriptions of the candidates on the list, including joint

degrees they held, universities they attended, the focus of their scholarship, recommendations

received on their behalf, judges they clerked for, Georgetown faculty members’ assessments, the

quality or quantity of their writing, whether they were already living in the area, their practice

experience, whether they should be considered as lateral candidates, and so on. (See id.) In

other words, there is no indication that these “older” individuals were being eliminated from

35
consideration based on their age; rather, they were on a list of candidates under consideration

about whom notable characteristics were highlighted.

Levitin’s list is distinguishable from the internal auditors’ spreadsheet at issue in Barnett

v. PA Consulting Group, Inc., No. 11-7136, 2013 WL 1876247, at *6 (D.C. Cir. May 7, 2013),

notwithstanding Spaeth’s contention to the contrary. (See Plaintiff’s Notice of Supplemental

Authority [ECF No. 105] (“Pl. Notice”).) First and foremost, the Barnett spreadsheet was

compiled as part of a process that culminated in Barnett’s firing, while Levitin compiled his list

during the 2011-12 hiring cycle and thus the list has nothing to do with Pillard not selecting

Spaeth’s application during the 2010-11 hiring cycle. Furthermore, the Barnett spreadsheet was

compiled to assist with layoff decisions by comparing the productivity of current employees.

Each employee’s age was noted, and the Court of Appeals held that a “jury might infer that PA’s

leadership included age as a factor in its personnel decisions.” See id. at 12. By contrast,

Levitin’s list was compiled to assist at the initial hiring stage by using shorthand descriptions to

identify essentially unknown applicants. He did not consistently note candidates’ ages, but

rather noted that a few candidates were “older.” In one instance, he noted that a candidate was

“older with experience” and in another, noted that a candidate was “older” and had already been

teaching at a different law school for several years. (Ex. 20 to Levitin Dep.) When viewed in

context, no reasonable jury would view these notations as evidence of discrimination, thus

distinguishing the instant case from Barnett, in which the Court of Appeals held that “a

reasonable jury could find the spreadsheet to be probative of discrimination.” Barnett, 2013 WL

1876247, at *6.

Spaeth fares no better with his citation to comments by Pillard, who everyone agrees was

a key decisionmaker. While comments by a decisionmaker related to the hiring process can

36
constitute direct evidence of discrimination that will “generally entitle a plaintiff to a jury trial.”

Ayissi-Etoh, 2013 WL 1352239 at *3 (quoting Vatel, 627 F.3d at 1247), none of the comments

attributed to Pillard are discriminatory and none relate directly to Spaeth or to Georgetown’s

reasons for not offering him an interview. Spaeth alleges that Pillard referred to a candidate as

“a boy,” but when read in context, it is clear that she was referring to the fact that he is male and

expressing regret that there was not greater gender balance in the department. (See Pillard Dep.

at 286.) Spaeth also calls her to task for describing another candidate as a “puppy,” a comment

made in jest during her deposition in response to the suggestion that “pick of the litter” indicated

age bias. (Id.) The remaining remarks by Pillard – primarily describing young individuals as

“young” – are similarly not evidence of discriminatory animus. 8

CONCLUSION

For the reasons stated above, defendant’s motion for summary judgment will be granted.

An Order accompanies this Memorandum Opinion.

/s/
ELLEN SEGAL HUVELLE
United States District Judge
DATE: May 9, 2013

8
Spaeth also asserts that “there exists substantial evidence of other conduct that is probative of
discriminatory intent in the hiring process for entry level law faculty positions.” (Pl. Opp. at 42.)
In particular, Spaeth alleges violations of Georgetown’s Affirmative Action Policy and its Equal
Opportunity and Non-Discrimination in Employment Policy based on the assertion that
“Professor Pillard and Professor Levitin recorded and reported the gender and race or ethnicity of
the candidates on the short lists, and those given call back interviews, and the Entry Level
Appointments Committee, when reviewing a short list in 2010, disproportionately deleted white
males from further consideration.” (Id.) However, these allegations of race and gender
discrimination against white males are unfounded, since Georgetown ultimately hired two white
males, and more importantly, they are simply not “probative evidence of discriminatory intent”
with respect to Spaeth’s age claims. (Pl. Sur-reply at 9.) The Court of Appeals’ recent decision
in Barnett, 2013 WL 1876247, does nothing to change this. (See Pl. Notice at 3.)
37