UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARK WILLIAM TOWNSEND,
Plaintiff,
Civil Action No. 15-1644 (BAH)
v.
Chief Judge Beryl A. Howell
UNITED STATES OF AMERICA, et al.,
Defendants.
MEMORANDUM OPINION
This four-year-old age-discrimination case concerns a job reassignment that lasted four
days and did not take full effect until just hours before the plaintiff, Mark William Townsend,
was escorted from the building and ultimately terminated due to his role in a multi-year time-
and-attendance fraud against his former employer, the United States Environmental Protection
Agency (“EPA”). The plaintiff initiated this action against the EPA, the United States
Department of Justice (“DOJ”), and the United States of America (collectively, the “agency
defendants”), and ten current and former employees of the EPA and DOJ (collectively, the
“individual defendants”). After twenty of the twenty-one counts in a 174-paragraph complaint
against the agency defendants were dismissed for failure to state a claim on which relief could be
granted, see Townsend v. United States (“Townsend I”), 236 F. Supp. 3d 280, 326 (D.D.C. 2017),
the plaintiff was granted partial leave to amend his complaint, see Townsend v. United States
(“Townsend II”), 282 F. Supp. 3d 118, 133 (D.D.C. 2017), leaving, after the opportunity of more
than one year of discovery, two claims at issue. In Count I of his Second Amended Complaint
(“SAC”), ECF No. 66, the plaintiff alleges that he was constructively demoted due to disparate
treatment age discrimination and, in Count II, he alleges a “pattern or practice” of age-based
disparate treatment, both in violation of the federal Age Discrimination in Employment Act
1
(“ADEA”), 29 U.S.C. §§ 621 et seq. See SAC ¶¶ 48–75.
Count I is predicated on the plaintiff’s allegation that his “putative supervisor,” Dr. Tala
Henry, “illegally pressured the plaintiff [to accept a new position] by telling him to ‘step aside’ .
. . in order to make room for ‘younger’ employees.” Townsend I, 236 F. Supp. 3d at 300 (some
internal quotation marks and citations omitted).1 Count II is predicated on allegations naming
three individuals whom the plaintiff alleges were subject to age discrimination as part of the
same reorganization leading to the plaintiff’s reassignment. See Townsend II, 282 F. Supp. 3d at
128. Although the plaintiff’s evidence on this claim was deemed “thin,” id., his “new allegations
about older employees [were] sufficient to nudge [his] claim into the realm of the plausible by
alleging ‘something more than an isolated, sporadic incident,’” id. (quoting Int’l Bhd. of
Teamsters v. United States (“Teamsters”), 431 U.S. 324, 336 n.16 (1977)).
The defendants now seek summary judgment, under Federal Rule of Civil Procedure
56(a), see Defs.’ Mot. Summ. J. (“Defs.’ MSJ”), ECF No. 73, contending that, as to Count I, the
plaintiff neither suffered an adverse employment action nor can show that age was a factor in his
reassignment, and as to Count II, the plaintiff has not demonstrated that age discrimination was
1
Count I also alleged age discrimination in connection with the plaintiff’s removal from federal service on
October 7, 2014. See First Am. Compl. (“FAC”) ¶¶ 93–99, ECF No. 35; Townsend I, 236 F. Supp. 3d at 300–02,
304–06. The plaintiff, however, had played a significant role in a fraud scheme in which EPA employees
fraudulently reported hours as worked when they were not working, and as a result, he had already, even before the
reorganization began, been the subject of multiple investigations beginning on July 3, 2012, which investigations he
does “not dispute . . . were, at least facially, triggered by legitimate concerns,” Townsend I, 236 F. Supp. 3d at 291–
94, 304–06. Accordingly, all claims related to the plaintiff’s termination were dismissed because, in light of his
fraudulent activity and the “exhaustive[]” investigations into that activity, “an inference that age played a role in his
termination. . . is rendered implausible by the totality of his allegations.” Id. at 305. First, the plaintiff had not
established a plausible causal relationship between Dr. Henry’s statement that he “step aside” and his termination,
id., and second, “the factual allegations, considered collectively, make abundantly clear that the EPA’s proffered
reason for the plaintiff’s termination was his supervisory role in time-and-attendance fraud,” in which the plaintiff
admitted he participated, id. Although the D.C. Circuit “has never held that the existence of an independent
investigation is dispositive on the question of pretext,” Cruz v. McAleenan, No. 17-5113, 2019 WL 3418453, at *4
(D.C. Cir. July 30, 2019), the plaintiff here never established a “plausible causal relationship” between his
supervisor’s alleged bias and his termination, Townsend I, 236 F. Supp. 3d at 304, in contrast to the plausible
allegations related to his reassignment, see id. at 300–06. Only the portion of Count I related to constructive
demotion survived the motion to dismiss. The plaintiff, in seeking to amend his complaint, “add[ed] no additional
factual allegations to Count I.” Townsend II, 282 F. Supp. 3d at 127 n.4.
2
EPA’s “standard operating procedure,” id., Ex. 1, Defs.’ Mem. Supp. Mot. Summ. J. (“Defs.’
Mem.”) at 2, ECF No. 73-1.2 For the reasons explained below, the defendants’ motion is
granted.
I. BACKGROUND
The plaintiff is a Caucasian male who began working at the EPA in 1980 and was over
the age of 40 when the internal EPA reorganization prompting this suit transpired. Defs.’ MSJ,
Ex. 2, Defs.’ Statement of Material Facts (“Defs.’ SMF”) ¶ 1, ECF No. 73-2; id., Ex. 7, Dep. of
Mark Townsend (“Pl.’s Dep.”) at 44, ECF No. 73-7.3 During his time at the EPA, the plaintiff
“shuffled” among divisions as the agency periodically reorganized and consequently he worked
in various positions with responsibility for a number of office-wide duties. Pl.’s Dep. at 10–38,
ECF No. 73-7 (plaintiff agreeing “[i]t was not unusual to see reorganizations across EPA” and
expressing the view that “all [reorganizations] are is a shuffling, all they are is a political game,
the shuffling. The staff, once again, do[es] exact[ly] the same work, their assignments do not
change. . . . [t]he roles and responsibilities for the people on the teams don’t change”); see also
Defs.’ Mem. at 1 (“As with many federal agencies over the years, EPA’s internal structure has
changed several times through reorganization of its offices.”).4 From December 2005 until the
alleged adverse employment action on July 27, 2014, the plaintiff served as Supervisory
2
All counts against the individual defendants have previously been dismissed and thus only the agency
defendants remain parties to this action. See Townsend I, 236 F. Supp. 3d at 320–26 (dismissing all claims asserted
against individual defendants for failure to state a claim).
3
The plaintiff was 68 years old on October 7, 2015, when this suit was filed. See Compl. ¶ 12, ECF No. 1.
Both the plaintiff’s first and second amended complaints filed in subsequent years continue to state his age as 68
years old. See FAC ¶ 5, (filed Feb. 11, 2016) (also stating plaintiff was “67 at the time of the . . . government
violations”); SAC ¶ 4 (filed Nov. 13, 2017). Neither party clarified the plaintiff’s age as of August 2019, but the
plaintiff mentioned, in passing, in his deposition taken on June 21, 2018, that he was 71 years old. Pl.’s Dep. at 44,
ECF No. 73-7. Thus, the plaintiff is presumably about 72 years old now.
4
The parties have submitted as exhibits different excerpts from the same June 21, 2018 deposition of the
plaintiff. For ease of review, citations to this deposition identify the docket number and pagination assigned by the
Court’s Case Management-Electronic Case File (“CM-ECF”) system.
3
Biologist (Branch Chief), a GS-15 position, in the High Production Volume Chemicals Branch
(“HPVCB”) of the Risk Assessment Division (“RAD”) of the EPA’s Office of Pollution
Prevention and Toxics. Defs.’ SMF ¶¶ 2, 4; Pl.’s Dep. at 20, ECF No. 73-7. The plaintiff
describes this position as “mid-level management.” Pl.’s Dep. at 20, ECF NO. 73-7.
A. Reorganization Begins in 2013 and Eventually Dissolves Plaintiff’s Branch
Starting in 2013, the EPA’s Office of Pollution Prevention and Toxics (“OPPT”), of
which the plaintiff’s Branch and Division were a part, began the process of reorganizing. Defs.’
SMF ¶ 4; Defs.’ MSJ, Ex. 3, Decl. of Tala Henry (“Henry Decl.”) ¶¶ 4–13, ECF No. 73-3.
During March and April 2013—while the plaintiff was already under investigation for time-and-
attendance fraud, see Townsend I, 236 F. Supp. 3d at 291–93—he discussed with his supervisor,
Dr. Jeffery Morris, then the acting Director of the RAD, the plaintiff’s vision for the
reorganization. Defs.’ SMF ¶ 3; Defs.’ Mem. at 3; Defs.’ MSJ, Ex. 5, Decl. of Jeffery T. Morris
(“Morris Decl.”) ¶¶ 2–4, ECF No. 73-5. In a March 27, 2013 meeting, Dr. Morris claims that the
plaintiff proposed that his branch, the HPVCB, “be dissolved and subsumed into other RAD
branches,” and that the plaintiff “be reassigned from Branch Chief to a RAD immediate office
position.” Morris Decl. ¶ 4. Later that same day, Dr. Morris received a follow-up email from
the plaintiff, which Dr. Morris says “reiterated [plaintiff’s] proposal.” Id. (citing Ex. A to Morris
Decl., Email from Plaintiff to Jeffery Morris, dated March 27, 2013 (“Mar. 2013 Email”) at 1,
ECF No. 73-6)). The plaintiff’s email opens by referring to “our early morning conversation”
and indicates that the purpose of the email is “to clarify and probably commit myself.” Mar.
2013 Email. The plaintiff suggests that RAD be reorganized into three branches, with “[o]ne
focused on PMNs,” and “two focused on generic support for toxic chemical review,” id.; Morris
Decl. ¶ 4 (noting that “‘PMNs’ stands for pre-manufacture notices and relates to the EPA’s
4
responsibility to review chemicals before they are manufactured and enter commerce in the
United States”), and the email contains the plaintiff’s recommendations as to both the positions
needed and employees to fill various roles, Mar. 2013 Email. The closing sentence states,
regarding the plaintiff’s own role: “Deputy BC [for Branch Chief]—nope. Deputy DD [for
Division Director] and sadly, I have suites [sic] and shirts and dress shoes and even scads of ties.
I can be pretty when necessary.” Id.5 In other words, the plaintiff’s “nope” indicates his
rejection of maintaining his then-position as a Branch Chief and preference, though “sadly,” for a
more senior position as Deputy Division Director.
A few weeks later, on April 11, 2013, the plaintiff again wrote Dr. Morris about
“perceiv[ing] a significant proposal towards changing [plaintiff’s] role and responsibilities” and
requesting “a written proposal regarding when (date) [his] current responsibilities will cease and
new role will begin.” Ex. B to Morris Decl., Email from Plaintiff to Jeffery Morris, dated April
11, 2013 (“Apr. 2013 Email”) at 5, ECF No. 73-6. The plaintiff goes on to acknowledge that he
is to become a “Special Assistant in the Immediate Office of the Risk Assessment Division,” a
position that “does not currently exist.” Id.
Dr. Morris understood the plaintiff’s recommendation as proposing that his branch,
HPVCB, “be dissolved and subsumed into other RAD branches,” and that the plaintiff “be
reassigned from Branch Chief to a RAD immediate office position.” Morris Decl. ¶ 4. Since
this was the reassignment that the plaintiff now challenges, the defendants contend this “fact []
casts doubt on his subsequent contention that the reassignment was somehow discriminatory and
adverse.” Defs. Mem. at 11. The plaintiff disputes that, in his communications with Dr. Morris,
5
The plaintiff disparages the Deputy Division Director role as compared to Branch Chief in his deposition,
stating “branch chiefs think of deputy division director as busy worker [gopher] job. A special assistant is beneath
that. To work for a deputy division director who’s a [gopher], doing whatever the division director doesn’t want to
do, to be the person that works under that person sucks.” Pl.’s Dep. at 37, ECF No. 73-7.
5
he proposed to eliminate his own Branch or asked to be reassigned to the RAD Immediate
Office. Pl.’s Opp’n Defs.’ Mot. Summ. J. (“Pl.’s Opp’n”) at 7–9, ¶¶ 2, 4–7, 9, 14, ECF No. 74-
1; id., Ex. 4, Dep. of Mark Townsend (“Pl.’s Dep.”) at 3–4, 6–15, ECF No. 74-4.6 When
confronted with his March 2013 email to Dr. Morris, the plaintiff back-tracked, claiming that he
“clarified in later emails” what he meant, and that the March 2013 email was an “off-the-cuff
response that [he] disagreed with [Dr. Morris]” and that he “was trying to be polite.” Pl.’s Dep.
at 9, ECF No. 74-4. He concedes, however, that the email never said whether he “agreed . . . or
disagreed with [Dr. Morris]” but rather “asked lots of questions about what was going through
his mind and gave him information about [himself] and the organization.” Id. at 10. He also
stated that he “disagreed [with Dr. Morris] in person in public” and “did not think [he] needed to
repeat that in writing.” Id. at 11.7
When the reorganization ultimately took shape, the number of OPPT Divisions was
reduced from seven to six. Defs.’ SMF ¶ 5; Henry Decl. ¶ 4. OPPT’s RAD remained, but all
four branches within it, including the plaintiff’s, were dissolved and reincorporated, along with
6
The plaintiff, who is represented by counsel, failed to submit a “separate concise statement” of disputed
material facts to accompany his opposition to the defendants’ motion as required by this Court’s local rules. See
LCvR 7(h)(1). “In determining a motion for summary judgment, the Court may assume that facts identified by the
moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of
genuine issues filed in opposition to the motion.” Id. Instead of complying with this rule, the plaintiff’s opposition
memorandum includes a section titled “DISPUTED MATERIAL FACTS,” Pl.’s Opp’n at 7–11, consisting of
twenty-three paragraphs that do not precisely correspond to the paragraphs in the defendants’ statement of
undisputed material facts. Compare Defs.’ SMF (containing 17 paragraphs) with Pl.’s Opp’n at 7–11 (containing 23
paragraphs). The plaintiff’s failure to identify precisely which facts are disputed, with record citations, has
complicated the Court’s task on review, but nevertheless, where possible and clear, the plaintiff’s disputed facts are
recognized. See Burke v. Gould, 286 F.3d 513, 518–19 (D.C. Cir. 2002) (leaving it to the district court to decide
whether to assume facts identified by the moving party are admitted, and noting that the local rules must be
“construed in harmony” with Federal Rule of Civil Procedure 56(c), which directs the Court to consider the
“pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” in
determining whether there is a genuine issue as to any material fact) (internal citation omitted) (quoting an earlier
version of FED. R. CIV. P. 56(c)); accord Arrington v. United States, 473 F.3d 329, 335 (D.C. Cir. 2006) (the local
rule “permits, but does not require” the Court to treat the material facts identified by the moving party as admitted).
7
Citing this back-tracking by the plaintiff as an example, the defendants suggest that the record
“significantly undermines [plaintiff’s] credibility.” Defs.’ Reply in Supp. MSJ (“Defs.’ Reply”) at 7 n.2, ECF No.
77. As discussed below, infra Section III.A.2, any focus on the plaintiff’s credibility is misplaced at the summary
judgment stage.
6
staff from two branches of a division that had been eliminated, into five new, multidisciplinary
branches, affecting a total of 80 positions. Defs.’ SMF ¶¶ 5–6; Henry Decl. ¶¶ 4–5, 13; Defs.’
Mem. at 3–4 (characterizing this reorganization as “major”). As a result of the reorganization,
the number of leadership positions within OPPT was reduced from 17 to 13. Defs.’ SMF ¶ 8;
Defs.’ Mem. at 4; Henry Decl. ¶ 5; Ex. 2 to Henry Decl., Memorandum Explaining
Reorganization (“Reorganization Mem.”), dated Sept. 11, 2013 at 5, 6, 36, ECF No. 73-4
(explaining that “consolidating the [risk-assessment] functions in a single division will
significantly improve integration, consistency, coordination, collaboration, decision-making and
timeliness among disciplines”). The defendants claim that because the “HPVC Branch in RAD
was eliminated,” the plaintiff’s previous role of HPVC Branch Chief “ceased to exist.” Defs.’
SMF ¶ 7. The plaintiff maintains, however, that despite this reorganization, the position he
previously held “still existed” and “was not eliminated—other than by name.” Pl.’s Dep. at 17,
ECF No. 74-4 (“If the branches were one, two, three, four, and five, and I was a branch chief,
and nothing was advertised, I would say my position still existed.”); Pl.’s Opp’n at 8 ¶ 10.
B. Plaintiff’s Supervisor Allegedly Encourages Him and Others to “Step Aside”
for Younger Employees as Part of Reorganization
As part of the reorganization, “Dr. Tala Henry became the Director of RAD” and thus the
plaintiff’s putative supervisor, in which role she “was tasked with developing RAD’s
reorganization staffing plan,” was “significantly, but not solely, involved in drafting the mission
statement and staffing plan” for the RAD, and met with each manager who would be affected,
including the plaintiff. See Defs.’ Mem. at 4; Henry Decl. ¶¶ 1, 4, 6, 8.8 Dr. Henry consulted
8
Dr. Henry acted as, but was not, the formal director of the RAD during this period. Wendy Cleland-
Hamnett, who at the time was the Director of the OPPT, see SAC ¶ 17, explained that she had delegated some
authority to Dr. Henry, who was to take command of the reorganized RAD, to shape it, Pl.’s Opp’n, Ex. 5, Dep. of
Wendy Cleland-Hamnett (“Cleland-Hamnett Dep.”) at 2–4, ECF No. 74-5; Pl.’s Opp’n at 8 ¶ 8.
7
with Dr. Morris, the acting RAD Director, “to gain insights on the current manager’s roles,
responsibilities, management styles and functioning/performance in their management roles,”
Henry Decl. ¶ 7; Morris Decl. ¶ 5, and “convened several meetings with existing managers,”
including the plaintiff, “to discuss options for organizational units within the division,” Henry
Decl. ¶ 8.
On August 8, 2013, Dr. Henry sent an email to the plaintiff and six other employees
explaining that six “management (i.e. supervisory)” positions and one “Sr. Science Advisor
(non-supervisory)” position would be available following the reorganization and asking the
employees to provide their top three preferences among those positions. Ex. 1 to Henry Decl.,
Email from Tala Henry to Plaintiff and Others, dated Aug. 8, 2013 (“August 2013 Email from
Henry”) at 2, ECF No. 73-4; Henry Decl. ¶ 8. Dr. Henry describes both the management and
senior advisor positions as “senior level” roles in the newly constituted RAD, Henry Decl. ¶ 8,
but does not dispute that her August 2013 email characterized the “Sr. Science Advisor” position
as “non-supervisory,” August 2013 Email from Henry at 2.
On September 6, 2013, Dr. Henry met with the plaintiff and informed him that “the
proposed reorganization plan would eliminate the HPVC Branch and that his position would no
longer exist.” Defs.’ Mem. at 5; Henry Decl. ¶ 10. Dr. Henry also told the plaintiff that he
would eventually be reassigned from Supervisory Biologist (Branch Chief, GS-15, Step 10) in
the HPVCB to Senior Advisor (Biologist, GS-15, Step 10) in the RAD Immediate Office. Defs.’
SMF ¶¶ 9, 10; Henry Decl. ¶ 10; Pl.’s Dep. at 36, ECF No. 73-7.9 Most significantly for his age
9
The plaintiff denies that Dr. Henry ever used the word “reassignment,” Pl.’s Dep. at 27, ECF No. 74-4, and
suggests, without further explanation, that Dr. Henry failing to use this word “allow[s] for an inference that older
employees treated in an ageist fashion were pretextually labeled by EPA upper management,” Pl.’s Opp’n at 10 ¶
22. To the extent the plaintiff is trying to generate a disputed fact, whether Dr. Henry actually used the word
“reassignment” at this meeting is not material since the parties agree that the plaintiff was reassigned.
8
discrimination claim, the plaintiff alleges that, at this meeting, Dr. Henry asked him to “do [her]
a favor,” to “step aside” and “move up to the front office, [to] give up [his] branch chief role for
the younger staff that just went through training at American University.” Pl.’s Dep. at 5–6, 19–
20, ECF No. 74-4; Pl.’s Opp’n at 7–8 ¶ 3.
Dr. Henry categorically denies having made such a request and asserts that age played no
role in her decision to reassign the plaintiff. Henry Decl. ¶ 12 (“Plaintiff’s age was never a factor
in my decision to reassign him. Nor did I ever make any statements that Plaintiff would be
reassigned from Branch Chief to a Senior Advisor position in order to make positions available
to younger staff.”). She contends that the plaintiff was “uniquely qualified—from both
educational and experience perspective[s]” for the Division-wide role to which he was
reassigned, id. ¶ 10, based on his experience with several Division-level responsibilities such as
budget formulation assistance, contracts, and information technology, id. ¶ 11, and that, because
the reorganized RAD would have 80 rather than 50 full-time equivalent employees, the need for
the types of activities the plaintiff would be assigned would be increasing, id.; see also Pl.’s Dep.
at 20–34, ECF No. 73-7 (the plaintiff describing his experience in information technology,
budgeting, contracting, and negotiating); Defs.’ SMF ¶ 13 (referring to these excerpts); Defs.’
Mem. at 15 (describing plaintiff’s reassignment to “front office” with “Division-level
responsibilities that Plaintiff . . . had already been performing as a Branch Chief, and . . . he was
the best qualified employee within RAD to perform them at the Division-level”). The plaintiff
concedes that no witnesses were present at this meeting in which Dr. Henry asked him to “step
aside” “for the younger staff,” Pl.’s Dep. at 39, ECF No. 73-7, that he did not record it, id. at 39–
9
40, and that he did not take contemporaneous notes while speaking with Dr. Henry, id. at 40;
Defs.’ SMF ¶ 12.
The plaintiff claims that he later heard about a similar conversation Dr. Henry allegedly
had with Dr. Jennifer Seed, another employee who was reassigned during the reorganization.
Pl.’s Dep. at 39, ECF No. 73-7; Pl.’s Opp’n at 9 ¶ 12; id., Ex. 2, Decl. of Dr. Jennifer Seed
(“Seed Decl.”) ¶¶ 3–5, 7, ECF No. 74-2. Seed, while represented by the same counsel as the
plaintiff here, has also sued the EPA for alleged age discrimination in another case pending
before another Judge of this Court. See Seed v. EPA, No. 16-cv-748 (TSC). In a declaration
filed in this instant litigation, Seed reiterates her claims from her own case that Dr. Henry
“discouraged [her] from applying for certain branch chief positions because EPA was hoping to
fill those positions with younger people who had just been through the leadership training
program.” Seed Decl. ¶ 3 (internal quotation marks and alterations omitted). Dr. Seed asserts,
based on her own experience and conversations with the plaintiff, that “it appears that EPA was
openly engaging in age discrimination as a matter of policy,” id. ¶ 5, and that the similarity of the
statements made to her and the plaintiff “show that age was a factor in EPA policy decisions,” id.
¶ 7; see also Pl.’s Opp’n, Ex. 3, Dep. of Jennifer Seed (“Seed Dep.”) at 2–3, ECF No. 74-3 (Dr.
Seed alleging that Dr. Henry told her “[w]e were hoping to fill those [branch chief positions]
with younger people who had just been through the leadership training program”). Despite
alleging a pattern of discrimination against himself, Dr. Seed, and two other EPA employees, Dr.
Kay Austin and Dr. Phillip Sayre, see SAC ¶¶ 59–75, the plaintiff concedes that no
documentation or witnesses corroborate his belief that age was a factor in reassigning any
employee other than himself and Dr. Seed. Pl.’s Dep. at 43–46, ECF No. 73-7; Defs.’ SMF ¶¶
15, 16; but see Pl.’s Opp’n at 10–11 ¶ 23 (contending that “[b]ased upon the questions asked by
10
the government during the deposition,” plaintiff “has ‘no doubt at all’ that he, Dr. Jennifer Seed,
Dr. Phillip Sayre and Dr. Kay Austin were discriminated against based on their age(s).”
(emphasis in original) (quoting Pl.’s Dep. at 29, ECF No. 74-4)).10
C. Plaintiff is Reassigned for Four Days Before Being Placed on Paid Leave and
Ultimately Terminated
The plaintiff’s reassignment from Supervisory Biologist (Branch Chief) of the High
Production Volume Chemicals Branch of the RAD to Senior Advisor (Biologist) of the RAD
became effective on July 27, 2014. Defs.’ SMF ¶ 10; Henry Decl. ¶¶ 3, 13; Ex. 3 to Henry
Decl., Email from Bobby Moore, dated July 15, 2014 at 38, ECF No. 73-4 (noting that “[t]his is
the [second] phase of the reorganization process and the effective dates . . . provided do[] not
make this reorganization final”); Ex. 4 to Henry Decl., Notification of Personnel Action, dated
July 27, 2014 (“Notification of Personnel Action”) at 40, ECF No. 73-4 (reassigning plaintiff
from “Supervisory Biologist” in the HPVCB of the RAD to “Biologist” in the RAD). According
to the plaintiff, however, he was not made aware that his reassignment had been completed until
the day he was removed from the building on July 31, 2014. Pl.’s Dep. at 50, ECF No. 73-7;
Defs.’ Reply at 9 n.3. Indeed, he asserts that “Dr. Tala Henry had obviously not decided what
[the plaintiff] was going to do [or] when [he] was going to do it” and that “[n]o one ever”
“[came] in and [said], ‘Mark, you are no longer a branch chief. I am taking off your stripes and
10
Dr. Seed asserts that both Drs. Sayer and Austin and another EPA employee, Dr. Oscar Hernandez, were
“to the best of [her] belief, discriminated against based upon their age.” Seed Decl. ¶ 6; see also Seed Dep. at 3–4
(listing these individuals). Dr. Hernandez was discussed at an earlier stage of this litigation, in connection with the
plaintiff’s claim of race discrimination, because Hernandez, whom the plaintiff described as Hispanic, “was
removed from his job . . . with knowledge that he engaged in significant misconduct for 20 years, yet Hernandez
was neither admonished nor was his record in the least reflective of his disastrous performance and decades-long
criminal misconduct.” Townsend I, 236 F. Supp. 3d at 291–92 (quoting FAC ¶ 50). The plaintiff also speculated
that Hernandez “‘would have’ been subjected to ‘pretextual discrimination’ . . . if he only fit the ‘older’ profile of
Plaintiff.” Id. at 310 (quoting FAC ¶ 55). Hernandez was rejected as a comparator for the plaintiff because he
“retired prior to any investigation by EPA officials into time-and-attendance fraud at the EPA.” Id. (quoting FAC ¶
46).
11
you’re now something else.’” Pl.’s Dep. at 53, ECF No. 73-7. In fact, when asked in his
deposition whether he “ever serve[d] as a senior advisor at the EPA at the RAD Immediate
Office,” the plaintiff replied, “No. No.” Id. at 37; but see id. at 36 (“I became a biologist for one
day before I was no longer with the reorganization [sic].” (emphasis added)).
At any rate, the plaintiff’s reassignment did not change his job series or pay grade, nor
did it reduce his pay, benefits, or working hours. Defs.’ SMF ¶ 11; Pl.’s Dep. at 51–55, ECF No.
73-7; Notification of Personnel Action at 40.11 Although his “staff were being picked up by
other people periodically to do things,” he “was still being held accountable to get certain
projects done.” Pl.’s Dep. at 57, ECF No. 73-7. Consequently, the plaintiff testified that he was
“still a branch chief” and “was still managing brominated flame retardants, . . . still managing
other projects, . . . [and] still being asked by Tala Henry to attend management meetings” until
the day of his removal, and that he “lost no projects . . . and actually picked up extra projects.”
Pl.’s Dep. at 36–37, 51–53, 57, ECF No. 73-7; Defs.’ SMF ¶ 14.12 Thus, the plaintiff states that
“after the reorganization, [he] was still floating—[he] was still a branch chief doing [his] work . .
11
Apparently, technically, the plaintiff’s pay grade changed from GM-15 to GS-15. See Notification of
Personnel Action at 40. The plaintiff characterizes his prior status as a GM, rather than GS, employee as being “left
over from a game [federal employers] played for a while where they actually had half steps.” Pl.’s Dep. at 34, ECF
No. 73-7. In other words, the plaintiff does not allege that the difference between GM and GS had any effect on his
salary, and in fact admits that his salary did not change following his reassignment. Id. Indeed, the plaintiff’s only
response to the fact that “his grade and benefits were not ‘diminished’” on his reassignment, which undercuts his
claim of an adverse employment action, is to speculate that “someone at EPA has incorrectly signed a series of time
and attendance records allowing GS-15 pay and benefits to an employee assigned the duties of an employee of lesser
grade.” Pl.’s Opp’n at 7. Nothing in the record suggests, however, that a GS-15 is a “lesser grade” than a GM-15.
12
The plaintiff at one point contends that his supervisory duties and assignments were reduced “six to eight
weeks” before the reorganization. Pl.’s Opp’n at 7 ¶ 1. Yet the portions of the deposition cited as support for this
claim are not included in any submitted excerpts, id. (citing deposition pages only partially reproduced at Pl.’s Dep.
at 2, ECF No. 74-4), making any evaluation of how to square this claim with the plaintiff’s statements elsewhere
that he “lost no projects . . . and actually picked up extra projects,” Pl.’s Dep. at 57, ECF No. 73-7, difficult.
12
. until [it] was the last day at EPA, and then [he got notice] saying [he] was a biologist and then
[he] was walked out the door.” Pl.’s Dep. at 36, ECF No. 73-7 (emphasis added)
At the same time, for the four days he was present after the reorganization, the plaintiff
states in his opposition brief that he was “stripped of all supervisory [and] managerial
responsibilities.” Pl.’s Opp’n at 10 ¶ 20. While his “pay stayed the same,” the plaintiff
complains that his “responsibilities were significantly less,” Pl.’s Dep. at 51, ECF No. 73-7,
because he was no longer responsible for “checking staff’s work, telling staff what to do, solving
staff problems, [or] working with other branch chiefs,” id. at 52, but instead was apparently
asked to scan documents, Pl.’s Dep. at 18, ECF No. 74-4, a task which he suggests would
ordinarily be assigned to library staff at the GS-11, GS-12, or GS-13 level, id. at 28; Pl.’s Opp’n
at 8–10 ¶¶ 11, 20, 21, and which he describes as “bullshit tasks,” Pl.’s Dep. at 18, ECF No. 74-4,
“busy work,” id. at 26, “make believe,” id., “make work,” id., “not real,” id., and “below-grade-
level,” id. at 28. The plaintiff’s starkly differing characterizations of his tasks in his reassigned
position for the four days between July 27 and 31, 2014, are difficult to reconcile, except perhaps
to include scanning as among the new assignments he was given.13
On July 31, 2014, four days after the reorganization was put into effect, the plaintiff was
removed from the building and placed on paid administration leave in connection with his role in
time-and-attendance fraud at the EPA. See Defs.’ Mem. at 2 n.1; Defs.’ Reply at 9 n.3;
Townsend I, 236 F. Supp. 3d at 295; SAC ¶ 43. The plaintiff was formally terminated from the
13
The plaintiff was also moved to a different office space, which he found to be inferior to his previous
office. Pl.’s Dep. at 52, 57, ECF No. 73-7 (“I was . . . being harassed by moving me into a smaller office before the
reorganization was final, an office shared with a GS-13. I was being moved out of my office where I used to meet
with my staff.”).
13
EPA on October 7, 2014 for his role in this fraudulent activity. Defs.’ SMF ¶ 17; Townsend I,
236 F. Supp. 3d at 291–95.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “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). “A genuine issue of material fact
exists ‘if the evidence, viewed in a light most favorable to the nonmoving party, could support a
reasonable jury’s verdict for the nonmoving party.’” Figueroa v. Pompeo, 923 F.3d 1078, 1085
(D.C. Cir. 2019) (internal quotation marks omitted) (quoting Hairston v. Vance-Cooks, 773 F.3d
266, 271 (D.C. Cir. 2014)). The moving party bears the burden to demonstrate the “absence of a
genuine issue of material fact” in dispute, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986),
while the nonmoving party must present specific facts, supported by materials in the record, that
would be admissible at trial and that could enable a reasonable jury to find in its favor, see
Anderson v. Liberty Lobby, Inc. (“Liberty Lobby”), 477 U.S. 242, 248 (1986); Allen v. Johnson,
795 F.3d 34, 38 (D.C. Cir. 2015) (noting that, on summary judgment, the appropriate inquiry is
“whether, on the evidence so viewed, ‘a reasonable jury could return a verdict for the nonmoving
party’”) (quoting Liberty Lobby, 477 U.S. at 248); see also Greer v. Paulson, 505 F.3d 1306,
1315 (D.C. Cir. 2007) (“[S]heer hearsay . . . counts for nothing on summary judgment.” (internal
quotation marks and citation omitted)); FED. R. CIV. P. 56(c), (e)(2)–(3).
“Evaluating whether evidence offered at summary judgment is sufficient to send a case to
the jury is as much art as science.” Estate of Parsons v. Palestinian Auth., 651 F.3d 118, 123
(D.C. Cir. 2011). This evaluation is guided by the related principles that “courts may not resolve
genuine disputes of fact in favor of the party seeking summary judgment,” Tolan v. Cotton, 572
14
U.S. 650, 656 (2014) (per curiam), and “[t]he evidence of the nonmovant is to be believed, and
all justifiable inferences are to be drawn in his favor,” id. at 651 (internal quotation marks
omitted) (alteration in original) (quoting Liberty Lobby, 477 U.S. at 255). Courts “may not make
credibility determinations or weigh the evidence,” Iyoha v. Architect of the Capitol, 927 F.3d
561, 565 (D.C. Cir. 2019) (internal quotation marks and citations omitted), since “[c]redibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge,” Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 150–51 (2000) (internal quotation marks and citation omitted); see also Burley v. Nat’l
Passenger Rail Corp., 801 F.3d 290, 296 (D.C. Cir. 2015).
The fact that a plaintiff’s testimony is uncorroborated is immaterial for purposes of
summary judgment, since “[c]orroboration goes to credibility, a question for the jury, not the
district court.” Robinson v. Pezzat, 818 F.3d 1, 9 (D.C. Cir. 2016). Nonetheless, for a factual
dispute to be “genuine,” the nonmoving party must establish more than “[t]he mere existence of
a scintilla of evidence in support of [its] position,” Liberty Lobby, 477 U.S. at 252, and cannot
rely on “mere allegations” or conclusory statements, see Equal Rights Ctr. v. Post Props., Inc.,
633 F.3d 1136, 1141 n.3 (D.C. Cir. 2011) (internal quotation marks omitted); accord FED. R.
CIV. P. 56(e). If “opposing parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could believe it, a court should not adopt
that version of the facts for purposes of ruling on a motion for summary judgment.” Lash v.
Lemke, 786 F.3d 1, 6 (D.C. Cir. 2015) (internal quotation marks omitted) (quoting Scott v.
Harris, 550 U.S. 372, 380 (2007)). The Court is only required to consider the materials
15
explicitly cited by the parties, but may on its own accord consider “other materials in the record.”
FED. R. CIV. P. 56(c)(3).
III. DISCUSSION
As noted, only two of the plaintiff’s twenty-one original claims remain: his alleged
constructive demotion due to age discrimination claim (Count I), and his pattern or practice
disparate treatment claim (Count II). For the reasons that follow, the defendants are entitled to
summary judgment on both Counts.
A. Count I: Alleged Constructive Demotion Due to Age Discrimination
In Count I, the plaintiff alleges that his four-day reassignment, during which his
responsibilities largely remained the same as when he was Branch Chief, except for the addition
of new assignments, constituted a constructive demotion and that Dr. Henry’s statements, as his
supervisor, that he should “step aside” to make room for younger employees is direct evidence
that age was a factor in his reassignment, in violation of the ADEA. See SAC ¶¶ 48–58; Pl’s
Opp’n at 3–4, 13; Pl.’s Dep. at 19, ECF No. 74-4. Even crediting as true, as required on
summary judgment, this direct evidence that age was a factor in his reassignment, the plaintiff
has failed to show that his reassignment constituted an adverse employment action and thus
summary judgment to the defendants on Count I is warranted.
1. Legal Standard
The Supreme Court has instructed that “the precise requirements of a prima facie
[employment discrimination] case can vary depending on the context.” Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 512 (2002). In view of this “emphasis on flexibility,” the D.C. Circuit has
adopted, for claims asserted under various anti-discrimination statutes, a “general version of the
prima facie case requirement: ‘the plaintiff must establish that (1) she is a member of a protected
class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to
16
an inference of discrimination.’” Chappell-Johnson v. Powell, 440 F.3d 484, 488 (D.C. Cir.
2006) (quoting Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999)); see also Czekalski v.
Peters (“Czekalski I”), 475 F.3d 360, 364 (D.C. Cir. 2007); George v. Leavitt, 407 F.3d 405, 412
(D.C. Cir. 2005); Krodel v. Young, 748 F.2d 701, 705 (D.C. Cir. 1984).
When a defendant moves for summary judgment on an age discrimination claim, “the
‘operative question’ is whether ‘the employee produced sufficient evidence for a reasonable jury
to find that . . . the employer intentionally discriminated against the employee on the basis of’
age. . . . If ‘the plaintiff offers direct evidence of discriminatory intent, that evidence will
generally entitle a plaintiff to a . . . trial.’” Wilson v. Cox, 753 F.3d 244, 247 (D.C. Cir. 2014)
(internal citations and quotation marks omitted) (ellipses in original) (quoting Ayissi-Etoh v.
Fannie Mae, 712 F.3d 572, 576 (D.C. Cir. 2013) (per curiam)). Such evidence gives clear rise
“to an inference of discrimination” sufficient to establish a prima facie case. One form of direct
evidence is “a statement that itself shows [unlawful] bias in the [employment] decision.” Vatel
v. Alliance of Auto Mfrs., 627 F.3d 1245, 1247 (D.C. Cir. 2011) (Kavanaugh, J.); see also Ayissi-
Etoh, 712 F.3d at 576–77 (holding that an alleged reference to the plaintiff as a “young black
man” was direct evidence that entitled the plaintiff to a jury trial, and that “when the issue comes
down to a credibility contest . . . [the Court] cannot resolve the dispute at the summary judgment
stage against the non-moving party”); Stone v. Landis Constr. Corp., 442 F. App’x 568, 569
(D.C. Cir. 2011) (per curiam) (unpublished) (reversing a district court’s grant of summary
judgment for the defendant where the defendant allegedly told the plaintiff “you’re old” when
17
expressing concern as to whether the plaintiff could perform physical labor, which “qualified as
direct evidence of [the defendant’s] discriminatory intent”).
Absent direct evidence of discrimination, a plaintiff may prove discrimination through
circumstantial evidence using the familiar three-part burden-shifting framework of McDonnell
Douglas Corp. v. Green (“McDonnell Douglas”), 411 U.S. 792, 802–05 (1973), see, e.g., id.
(applying framework to Title VII claim); Ford v. Mabus, 629 F.3d 198, 201 (D.C. Cir. 2010)
(applying framework to an ADEA claim); Krodel, 748 F.2d at 705 (same). Under McDonnell
Douglas, the plaintiff has the initial burden of production to establish a prima facie case of
discrimination; if he does, then the employer must articulate a legitimate, non-discriminatory
reason for its action; and if it does, then the plaintiff must receive an opportunity to show that the
employer’s reason was a pretextual cover for discrimination. McDonnell Douglas, 411 U.S. at
802–07; Reeves, 530 U.S. at 142–43. “To be faithful to th[e] ‘sweeping’ language [of the
ADEA] . . . plaintiffs may also prevail by proving that age was a factor in the employer’s
decision.” Ford, 629 F.3d at 206.
A plaintiff in any employment discrimination case must first establish that “she [or he] is
a member of a protected class.” Chappell-Johnson, 440 F.3d at 488 (quoting Brown, 199 F.3d at
452). The class protected by the ADEA is “individuals who are at least 40 years of age.” 29
U.S.C. § 631(a). The defendants agree that the plaintiff “is over 40 years old.” Defs.’ SMF ¶ 1.
Accordingly, discussion will be limited to the two remaining “essential elements of [an age]
discrimination claim[:] that (i) the plaintiff suffered an adverse employment action (ii) because
of the plaintiff’s . . . age.” Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008)
(Kavanaugh, J.) (citing 29 U.S.C. §§ 621 et seq.).
18
a. Evidence of Age Discrimination by Federal Employers
The ADEA sets a more exacting non-discrimination standard for federal employers than
for private employers. See Miller v. Clinton, 687 F.3d 1332, 1336–37 (D.C. Cir. 2012). While
29 U.S.C. § 623 prohibits private employers from making employment decisions for which age
discrimination is a but-for cause, Section 633a prohibits federal employers from taking age into
account at all. Ford, 629 F.3d at 205–06. Thus, if the federal employer considers age in making
an employment decision, the analysis stops there, since “any amount of discrimination tainting a
personnel action, even if not substantial, means that the action was not ‘free from any
discrimination based on age.’” Id. at 206 (quoting 29 U.S.C. § 633a). While federal employees
can still make the prima facie case through the ordinary burden-shifting analysis of McDonnell
Douglas, they may also merely prove “that age was a factor in the challenged personnel action.”
Id. at 206–07 (emphasis in original). On the other hand, proving that age was a factor, along
with the other elements of a successful discrimination claim, only entitles a plaintiff to
“declaratory and possibly injunctive relief, it is insufficient to merit instatement and backpay.
For those types of remedies, a but-for-standard of causation is necessary.” Id. at 207.14
Direct evidence is not necessary to establish that age was a factor in the employment
action, see Townsend I, 236 F. Supp. 3d at 300, but such evidence suffices as a nearly automatic
ticket to a trial, see Wilson v. Cox, 753 F.3d at 247 (“If the plaintiff offers direct evidence of
discriminatory intent, that evidence will generally entitle a plaintiff to a trial.” (internal quotation
marks, alteration, and citation omitted)). “Direct evidence of discrimination is evidence that, if
14
The defendants assert that the plaintiff is not entitled to the remedies he seeks, see SAC at 18–19 (Prayer
for Relief) (seeking reinstatement, retroactive promotion, back pay, front pay, and “$300,000.00 in compensatory
damages” and attorney’s fees); Pl.’s Dep. at 61–62, ECF No. 73-7 (discussing plaintiff’s request for “monetary
compensation for emotional distress”), because he was terminated for time-and-attendance fraud and, because of
that fraud, is unable to prove that age was the but-for cause in his reassignment, see Defs.’ Mem. at 18–20 & n.3;
Defs.’ Reply at 9 n.3. Resolution of any dispute about the remedies available to the plaintiff is unnecessary since
summary judgment is granted to the defendants.
19
believed by the fact finder, proves the particular fact in question without any need of an
inference. In the context of [federal employment discrimination statutes], direct evidence
includes any statement or written document showing a discriminatory motive on its face.” Davis
v. Ashcroft, 355 F. Supp. 2d 330, 340 n.2 (D.D.C. 2005) (internal quotation marks and citations
omitted) (emphasis in original).
Statements merely related to age do not qualify as direct evidence unless they clearly
manifest discriminatory intent. See Iyoha, 927 F.3d at 569 (“In order to defeat a motion for
summary judgment, [an employment discrimination plaintiff] must show more than ‘general
bias.’ . . . [h]e must also produce evidence to show that the [employment action] was ‘motivated
by that bias.’” (quoting Morris v. McCarthy, 825 F.3d 658, 670 (D.C. Cir. 2016))). In Wilson v.
Cox, for instance, the D.C. Circuit reversed a grant of summary judgment for the defendants,
finding that a statement that older employees “didn’t come here to work, [they] came here to
retire,” as well as a derogatory statement expressing concern that older employees were falling
asleep on the job, would allow a reasonable trier of fact to conclude that age was a factor in the
employer’s decision. 753 F.3d at 248–49; cf. Breen v. Chao, 253 F. Supp. 3d 244, 258 n.9
(D.D.C. 2017) (finding supervisor’s statements of concern about an “aging workforce” did not
constitute direct evidence because these concerns were “subject to multiple interpretations”).
b. Adverse Employment Actions
An adverse employment action may arise from “a significant change in employment
status, such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits.” Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 760 (1998). The types of actions considered to be adverse are not limited
to a categorical list. See Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006). Even “a
20
lateral transfer may qualify as an adverse action.” Czekalski v. LaHood (“Czekalski II”), 589
F.3d 449, 456 (D.C. Cir. 2009) (emphasis omitted). “[N]ot everything that makes an employee
unhappy,” however, “is an actionable adverse action.” Baird v. Gotbaum, 662 F.3d 1246, 1250
(D.C. Cir. 2011) (internal quotation marks omitted) (quoting Douglas v. Donovan, 559 F.3d 549,
552 (D.C. Cir. 2009)). In deciding whether lateral transfers and other actions short of
termination or pay cuts are adverse, courts distinguish between actions causing “‘purely
subjective injuries,’ such as dissatisfaction with a reassignment, public humiliation, or loss of
reputation” and those causing “an employee [to] ‘experience[] materially adverse consequences
affecting the terms, conditions, or privileges of employment or future employment opportunities
such that a reasonable trier of fact could find objectively tangible harm.’” Holcomb, 433 F.3d at
902 (quoting Forkkio v. Powell, 306 F.3d 1127, 1130–31 (D.C. Cir. 2002)). Ultimately, in a
lateral transfer case, the question is whether “the reassignment left the plaintiff with significantly
diminished responsibilities.” Czekalski I, 475 F.3d at 365.
While no categorical rule governs assessment of whether a plaintiff’s new responsibilities
qualify as “significantly diminished,” see id., courts have considered at least the following
factors: whether the plaintiff was stripped of supervisory duties, see id. at 364 (quoting Stewart v.
Ashcroft, 352 F.3d 422, 427 (D.C. Cir. 2003) (“[W]ithdrawing an employee’s supervisory duties
. . . constitutes an adverse employment action.”)); whether central parts of the plaintiff’s
workload were reduced, see Wilson v. Clayton, No. 16-cv-133 (CRC), 2019 WL 1879547, at *1,
*5 (D.D.C. Apr. 27, 2019) (finding that a reasonable trier of fact might conclude that a reduction
in auditing duties for an employee hired as “Assistant Inspector General for Audits,” among
other factors, constituted adverse action); and whether the plaintiff’s duties in the new position
were clearly inferior or required less skill, as opposed to simply representing a different type of
21
work altogether, see Baloch, 550 F.3d at 1197 (suggesting reassignment to “qualitatively
inferior work requiring . . . less skill or knowledge” would constitute adverse action); Burford v.
Powell, No. 15-cv-2074 (RMC), 2019 WL 935635, at *7 (D.D.C. Feb. 26, 2019) (finding that a
law enforcement officer’s “constant string of assignments to non-critical posts was of sufficient
duration to make it appear that [she] had been demoted” and therefore constituted a materially
adverse action in a retaliation case); cf. Sykes v. Napolitano, 710 F. Supp. 2d 133, 134, 143
(D.D.C. 2010) (concluding that reassignment of a Secret Service agent from heading a former
first lady’s security detail to heading a training academy, with similar pay and benefits, did not
constitute adverse action because while the agent’s “duties have definitely changed, it cannot be
said that they are ‘greatly diminished’” (emphasis in original)). An increased workload does not
constitute a materially adverse action, see Forkkio, 306 F.3d at 1131; Lester v. Natsios, 290 F.
Supp. 2d 11, 29–30 (D.D.C. 2003), nor does “loss of reputation,” Holcomb, 433 F.3d at 902.
Whether the challenged reassignment rises to the level of materially adverse “is generally a jury
question.” Czekalski II, 549 F.3d at 456 (internal quotation marks omitted) (quoting Czekalski I,
475 F.3d at 364–65). Summary judgment for the defendant may nonetheless be appropriate,
however, if no reasonable trier of fact could find that the challenged reassignment affected the
plaintiff’s duties sufficiently to qualify as materially adverse. See Forkkio, 306 F.3d at 1131–32.
Application of these legal principles to Count I is discussed next.
2. The Plaintiff’s Evidence of Age Discrimination
In moving for summary judgment, the defendants contend that the plaintiff cannot
establish “that age was a factor in his reassignment.” Defs.’ Mem. at 12–14. As support for his
claim of age discrimination, the plaintiff alleges that his supervisor, Dr. Henry, asked him to “do
[her] a favor,” to “step aside” and “move up to the front office, [to] give up [his] branch chief
22
role for the younger staff that just went through training at American University.” Pl.’s Dep. at
5, 19–20, ECF No. 74-4. In the face of Dr. Henry’s denial that she made any such statement, the
plaintiff concedes that he has no witnesses, id. at 39, ECF No. 73-7, no recording, id. at 39–40,
nor any contemporaneous notes, id. at 40, to corroborate his allegation that this conversation ever
occurred, but he does provide a declaration of a colleague who claims to have had a similar
conversation with Dr. Henry. See Seed Decl.
With this allegedly direct evidence obviating any need of an inference or circumstantial
evidence of discrimination, determining whether a reasonable jury could conclude that age was a
factor in the plaintiff’s reassignment should be straightforward, but the defendants have confused
matters in at least two ways. First, the defendants discount the plaintiff’s recollection of his
conversation with Dr. Henry’s as uncorroborated, unsubstantiated, self-serving, and not credible,
Defs.’ Mem. at 12–14; Defs.’ Reply at 2–6, notwithstanding that, at this stage of the proceedings,
all inferences are to be drawn in the plaintiff’s favor and “[c]redibility determinations, the
weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions,
not those of a judge,” Reeves, 530 U.S. at 150–51. Second, the defendants, in part because they
discount the plaintiff’s evidence, wholly fail to recognize that he has offered direct, rather than
circumstantial, evidence that age was a factor in his reassignment. See Defs.’ Mem. at 14–16.
Defs.’ Reply at 3–7. This error leads them to focus on the McDonnell Douglas framework for
circumstantial evidence, which is simply irrelevant if direct, though disputed, evidence of
discrimination has been presented.15
The defendants make much of the fact that the plaintiff’s only evidence that age was a
factor in his own reassignment is his “self-serving” recollection of a conversation he claims to
15
If the plaintiff presented only circumstantial evidence for an inference of discrimination, the defendants’
focus on their “legitimate, nondiscriminatory reason[s]” for reassigning him would be relevant. McDonnell
23
have had with Dr. Henry, urging the Court to find this evidence “insufficient to create a genuine
issue of material fact to overcome EPA’s articulated reasons for the reassignment.” Defs.’ Mem.
at 13 (citing Fields v. Johnson, 520 F. Supp. 2d 101, 105 (D.D.C. 2007) and Sloan v. Urban Title
Servs., Inc., 689 F. Supp. 2d 94, 122 n.16 (D.D.C. 2010)).16 This is just part of the defendants’
broadside attack on the plaintiff’s credibility. See id. at 13–14 (arguing the plaintiff has not
produced credible evidence, especially where “Dr. Henry explicitly and categorically denies” his
account); Defs.’ Reply at 3 (“Plaintiff has failed to offer any credible evidence to show that his
reassignment was based on age.”); id. at 4 (“[T]he only evidence that Plaintiff identifies to
support his argument of age discrimination is his own uncorroborated testimony.”); id. at 7 n.2
(“Plaintiff now claims that he never made a recommendation regarding [the reorganization], but
his own emails say otherwise, and this record evidence significantly undermines his
credibility.”). The defendants’ focus on credibility is entirely unhelpful since no credibility
determinations should be made at the summary judgment stage. Mayorga v. Merdon, 928 F.3d
84, 93–94 (D.C. Cir. 2019) (classifying this type of argument as “a mere makeweight” because
“[t]o the extent the testimony of a witness who is also a party may be impaired by party self-
interest, it is ordinarily the role of the jury—not the court on summary judgment—to discount it
Douglas, 411 U.S. at 802. The defendants argue vigorously that the reorganization was meant to “improve OPPT’s
risk assessments by fostering better-integrated, more-coherent, and more-clearly articulated characterizations of
human health and ecological risk,” Defs.’ Mem. at 15 (citing Reorganization Mem.), and that the plaintiff’s
“reassignment was warranted because of [his] unique experiences in technical and programmatic areas, as well as in
several administrative processes that were essential to the division,” id. (citing Henry Decl.¶¶ 10–11). “Because
[Henry’s] statements constitute direct evidence of discrimination,” it is unnecessary to determine whether these
“proffered, nondiscriminatory rationales . . . were non-pretextual.” Wilson v. Cox, 753 F.3d at 248.
16
The two cases relied upon by the defendants for the proposition that the plaintiff’s self-serving statements
are insufficient to withstand summary judgment are singularly unhelpful since one has been abrogated and the other
is inapposite. Insofar as Fields stands for the proposition that “self-serving testimony does not create genuine issues
of material fact,” Defs.’ Mem. at 13, the D.C. Circuit has made clear that the district court in Fields “erred and [that
interpretation] should not be followed; we have said as much,” Scott v. Dist. Hosp. Partners L.P., 715 F. App’x 6, 7
(D.C. Cir. 2018) (per curiam) (unpublished) (citing Johnson v. Perez, 823 F.3d 701, 710 (D.C. Cir. 2016)).
Meanwhile, Sloan dealt with a plaintiff’s assertions that he merely believed certain events had occurred, not that he
had witnessed those events as they occurred, 689 F. Supp. 2d at 122 & n.16, a far different scenario than the plaintiff
in this case.
24
accordingly” (quoting Johnson v. Perez, 823 F.3d at 710)). Thus, despite the defendants goading
to the contrary, this Court has no authority to take the question of the plaintiff’s credibility as a
witness away from a jury solely on the basis that his account is uncorroborated and self-
serving.17 See United States v. Seventeen Thousand Nine Hundred Dollars ($17,900.00) in U.S.
Currency, 859 F.3d 1085, 1092 (D.C. Cir. 2017) (“This is the standard even when the court
entertains grave doubts about a statement proffered by the party opposing summary judgment.”
(internal quotation marks and citation omitted)).
Moreover, the defendants, in their rush to challenge the credibility of the plaintiff’s own
account, fail to acknowledge that he has offered corroboration, in the form of Dr. Seed’s
declaration and deposition in her own anti-discrimination suit. See Defs.’ Mem. at 13 (“Plaintiff
. . . has no corroborating evidence such as internal documents, audio or video recordings, or any
corroborating witnesses to give credence to his claim that management sought to reduce the
ranks of older workers”); Defs.’ Reply at 1 (“Plaintiff relies merely on his own self-serving
statements and unsubstantiated speculation.”); id. at 3 (“Plaintiff has failed to offer any credible
evidence to show that his reassignment was based on age.”); id. at 5 n.1 (only addressing Dr.
Seed’s declaration as to the remarks allegedly made to the plaintiff, ignoring the remarks
allegedly made to Dr. Seed). Even if the defendants were correct that the plaintiff’s
uncorroborated, self-serving testimony fails to create a genuine issue of a material fact—and they
are not—the testimony here is corroborated.
17
A different conclusion would be possible if the plaintiff’s account were “so undermined as to be
incredible,” Robinson, 818 F.3d at 10 (internal quotation marks and citation omitted), for example, if it were
“supported solely by the plaintiff’s own self-serving testimony, unsupported by corroborating evidence, and
undermined either by other credible evidence, physical impossibility or other persuasive evidence that the plaintiff
has deliberately committed perjury,” Chenari v. George Washington Univ., 847 F.3d 740, 747 (D.C. Cir. 2017). The
plaintiff’s account of Dr. Henry’s statements does not meet this standard.
25
Taking the plaintiff’s account of Dr. Henry’s statements at face value, this constitutes
direct evidence of age discrimination, and therefore the attention the defendants give to the
McDonnell Douglas burden-shifting framework is ill spent. Such direct evidence, taken as true,
would allow a reasonable jury to conclude without making any further inferences that age was a
factor in his reassignment. The plaintiff alleges his supervisor asked him to “step aside” and
“move up to the front office, [to] give up [his] branch chief role for the younger staff that just
went through training at American University.” Pl.’s Dep. at 5, 19–20, ECF No. 74-4. Such
comments are not “subject to multiple interpretations.” Breen v. Chao, 253 F. Supp. 3d at 258
n.9. Even if Dr. Henry intended to focus not on the age of potential employees, but on their
American University training, the plaintiff has alleged that his supervisor, when discussing his
reassignment, explicitly cited age as one reason that she preferred to assign certain candidates for
a position rather than the plaintiff. “The defendants are fully free to advance [an alternative]
argument at trial; but at the summary judgment stage, an alternative interpretation of that kind
cannot overcome the need to draw inferences in the non-moving party’s favor.” Wilson v. Cox,
753 F.3d at 248.
The age-related statements allegedly made by Dr. Henry are almost as direct as the
offending comments in Wilson v. Cox— that older employees “didn’t come here to work, [they]
came here to retire.” Id. at 248–49. Of course, unlike the comments in Wilson v. Cox, or those
in Steele v. Mattis, 899 F.3d 943, 946 (D.C. Cir. 2018), on which the plaintiff heavily relies, see
Pl.’s Opp’n at 3–5, 14, the decisionmaker here did not disparage older workers; she merely
expressed favor for younger workers who had American University training. In Steele, the
employer both praised younger employees as “a breath of fresh air,” “eager to please,” and “the
kind of . . . people who are making [the office] marvelous,” and denigrated older employees as
26
“stubborn” and “difficult to work with.” Steele, 899 F.3d at 946 (internal quotation marks
omitted). These comments were deemed to be “open hostility to older workers” that “should
have been recognized for what [they were]—direct evidence of illegal discrimination.” Id. at
951. Whether Dr. Henry’s alleged statements are properly understood to praise younger
employees or to denigrate older employees is not the point: in an ADEA action against the
federal government, the plaintiff is only required to prove that age was “a factor” in the decision.
Id. at 945 (quoting Ford, 629 F.3d at 207). The plaintiff has provided such direct evidence here.
This evidence would be sufficient to avoid the burden-shifting analysis of McDonnell
Douglas and proceed to trial if the plaintiff had also produced evidence sufficient for a
reasonable trier of fact to determine that he actually suffered an adverse employment action.18
On this element, the plaintiff falters, as discussed next.
3. The Challenged Employment Action
The issue that proves fatal to the plaintiff’s claim is whether he “suffered an adverse
employment action.” Baloch, 550 F.3d at 1196. In moving for summary judgment, the
defendants contend that as a matter of law, the plaintiff’s reassignment did not rise to this level.
See Defs.’ Mem. at 9–12. The Court agrees that, considering each of the potential bases for
18
The plaintiff submitted a declaration from Dr. Seed, who states that Dr. Henry expressed to Dr. Seed a
preference for assigning younger employees the position of Branch Chief. See Seed Decl. ¶¶ 3–5, 7. Thus, even if
Dr. Henry’s alleged remark to the plaintiff fell short of constituting direct evidence of age discrimination, Dr.
Henry’s alleged remarks to both the plaintiff and to Dr. Seed would provide circumstantial evidence giving rise to an
inference of discrimination. The defendants have a two-pronged challenge to Dr. Seed’s declaration. First, the
defendants highlight that Dr. Seed refers to a conversation the plaintiff had “in the lead-up to a RAD reorganization
beginning in 2013,” Defs.’ Reply at 5 n.1 (quoting Seed Decl. ¶ 5), but argue that the conversation with Dr. Henry
“could not have occurred in the beginning of 2013 because Dr. Henry did not participate in the reorganization
process until mid-2013 and did not join RAD until November 3, 2013,” id. This apparent incongruity in the timeline
is simply not persuasive since (1) both the reorganization and the “lead-up” to it did begin in 2013; (2) the
defendants admit that Dr. Henry began participating in the reorganization as early as mid-2013; and (3) even if Dr.
Seed’s declaration implies that the plaintiff had a conversation in the beginning of 2013 rather than near its end, no
genuine dispute has surfaced about a conversation between the two occurring at some point in 2013. Second, the
defendants claim that Dr. Seed’s declaration “lacks any probative force because it is hearsay,” id., but Dr. Seed has
“firsthand knowledge of the alleged age-related remarks” made to her. See Seed Decl. ¶¶ 3, 4, 7.
27
finding an adverse employment action, even “drawing all inferences in favor of the [plaintiff], a
reasonable jury could not return a verdict in [his] favor.” Davis v. District of Columbia, 925
F.3d 1240, 1248 (D.C. Cir. 2019).
The plaintiff’s strongest argument for surviving summary judgment on the adverse action
issue is that he “was stripped of all management [and] supervisory responsibilities” in his
reassignment. Pl.’s Opp’n at 3. To be sure, the law of this Circuit provides ample support for
the proposition that loss of one’s supervisory role often amounts to adverse action for the
purposes of employment discrimination statutes. See, e.g., see Czekalski I, 475 F.3d at 364
(quoting Stewart, 352 F.3d at 427 ) (“[W]ithdrawing an employee’s supervisory duties . . .
constitutes an adverse employment action.”); Wilson v. Clayton, 2019 WL 1879547, at *5. The
problem the plaintiff faces with respect to this issue is not the inadequacy of his legal argument,
but rather the inadequacy of his evidence to convince a reasonable trier of fact that he was indeed
stripped of such responsibilities. The plaintiff’s reassignment lasted, at most, four work days—
and that may be an exaggeration. See Defs.’ SMF ¶ 10; Notification of Personnel Action at 40;
Townsend I, 236 F. Supp. 3d at 295; SAC ¶ 43. The plaintiff himself admits to some confusion
as to whether he ceased being Branch Chief, or whether he ceased being responsible for Branch
Chief duties. See Pl.’s Dep. at 53, ECF No. 73-7 (“Dr. Tala Henry had obviously not decided
what I was going to do [or] when I was going to do it and did not come in and say, ‘Mark, you
are no longer a branch chief.’”) The plaintiff alleges that his “staff were being picked up by
other people periodically to do things,” but he nevertheless concedes that he “was still being held
accountable to get certain projects done.” Id. at 57. Furthermore, the plaintiff avers that “up
until they gave [him] the form that said [he] was a biologist” and removed him from the building,
28
id. at 52, he “was still a branch chief doing [his] work,” id. at 36, and that he never “serve[d] as a
senior advisor at the EPA at the RAD Immediate Office,” id. at 37.
While it is true that Dr. Henry at one point characterized the position to which the
plaintiff was eventually reassigned as “non-supervisory,” August 2013 Email from Henry at 2,
the plaintiff cannot be said to have suffered an adverse employment action if he never in fact
served in that non-supervisory position. In short, if a jury believed the plaintiff’s testimony in
full, the only conclusion that reasonably could be drawn is that the plaintiff might have lost his
supervisory duties had he remained in his position. But see Defs.’ Reply at 3 (“[T]he
reassignment would have afforded Plaintiff significant programmatic responsibilities if he had
not been terminated for misconduct.”). Such speculation as to what the plaintiff’s employment
conditions might have been falls outside “the outer bounds of the ‘objectively tangible harm’ [the
ADEA] requires.” Wilson v. Clayton, 2019 WL 1879547, at *5; see also Forkkio, 306 F.3d at
1131 (“[A]n employee suffers an adverse employment action if he experiences materially
adverse consequences affecting the terms, conditions, or privileges of employment or future
employment opportunities such that a reasonable trier of fact could find objectively tangible
harm.”).
The plaintiff further argues that he suffered an adverse action because following his
reassignment, he was “assigned ‘scanning’ work well below grade level.” Pl.’s Opp’n at 3. The
evidentiary support for this statement from the plaintiff’s deposition is that he was tasked with
“creat[ing] a system,” which the plaintiff then apparently had to populate with scanned records,
Pl.’s Dep. at 18, ECF No. 74-4, “that were the record[s] of all work done pre-decisional on
PMNs since the TSCA program started,” id. at 52–53, ECF No. 73-7. Even years later, this
system is still not operational. Id.; id. at 25–26, ECF No. 74-4 (“My new responsibilities as a
29
biologist were to scan documents into a system that had not yet been created, nor that had been
funded and nor—and as of this date of today, the project has never been supported, funded or
initiated . . .”). He worked on this project only a half hour before he was escorted from the
building. Id. at 26, ECF No. 74-4. A jury that believed the plaintiff’s testimony could easily
understand that creation of a system from scratch to hold agency records relating to agency
decisions may involve the scanning of documents but would also require some sophisticated
understanding of agency processes and information technology systems, raising significant
questions as to whether the plaintiff was correct that such work would ordinarily be assigned to
library staff at the GS-11 to GS-13 level, id. at 28, or that this assignment amounted to “busy
work,” id. at 26.
The plaintiff plainly viewed this assignment, which he worked on by his own admission
for only a half hour, as “below-grade-level,” id. at 26, 28, but his own perception of this new
responsibility for creation of a new system is not dispositive of whether this task amounts to an
adverse employment action. The assignment of additional responsibilities simply does not rise
to the level of an adverse employment action. See Forkkio, 306 F.3d at 1131 (“[Plaintiff’s]
substantive responsibilities were not reduced: he was given additional functions to perform.”);
Lester, 290 F. Supp. 2d at 29–30 (“Courts have recognized that increases in workload or changes
in responsibility are not adverse employment actions, but rather constitute only the ordinary
tribulations of the workplace, which employees should expect.” (citations and internal quotation
marks omitted)).
While the plaintiff may be able to convince a jury that scanning documents is, to a
Branch Chief, “qualitatively inferior work requiring . . . less skill or knowledge,” Baloch, 550
F.3d at 1197, he would also have to provide evidence that this work replaced rather than
30
supplemented his previous responsibilities. The plaintiff has offered no such evidence, and has
in fact offered statements that directly contradict that proposition. See Pl.’s Dep. at 57, ECF No.
73-7 (“I lost no projects that were mine and actually picked up extra projects.”), id. at 52 (“I was
still managing brominated flame retardants, I was still managing other projects, I was still being
asked by Tala Henry to attend management meetings discussing the new tracking system.”). The
plaintiff speculates that the reassignment meant that he “wasn’t going to do [Branch Chief work]
anymore”—that he “was going to be scanning paper documents . . .” Id. at 52–53. Yet with
mere speculation that creation of the new system, with some scanning work, would have
replaced the plaintiff’s previous responsibilities, and without any further evidence, “a reasonable
trier of fact could [not] find objectively tangible harm” in the assignment of the task of creating a
new system that also involved scanning work. See Forkkio, 306 F.3d at 1131.19
In sum, the plaintiff’s reassignment had no impact on his pay, hours, or benefits, and he
has failed to produce evidence sufficient for a reasonable trier of fact to conclude that “the
reassignment left the plaintiff with significantly diminished responsibilities,” Czekalski I, 475
F.3d at 365, without speculating as to what his duties might have been had the reassignment gone
fully into effect before he was fired for independent reasons. While the plaintiff has provided
direct evidence which could lead a reasonable trier of fact to conclude “that age was a factor in
19
The plaintiff primarily focuses on the alleged loss of supervisory duties and the assignment of scanning
work as constituting adverse actions but also raises several other allegations that, for the sake of thoroughness, are
addressed here. The plaintiff claims that his “private office and privacy with a door was [sic] removed,” that he
“was moved into an office shared with a GS-13, one of [his] previous staff,” and that he “was moved out of an office
with a clear story that had access to sunlight into an area where there was no sunlight.” Pl.’s Dep. at 54–55, ECF
No. 73-7. This office move caused him some embarrassment “because other managers would come down the
hallway and say, ‘What happened, Mark? You’re the only person that I know that wants to be a branch chief. How
did you get set aside? How did you get demoted?’” Id. at 37, 55. None of these allegations, however, give rise to a
reasonable finding of adverse action since they only represent “dissatisfaction with a reassignment, public
humiliation, or loss of reputation” Holcomb, 433 F.3d at 902, which are not sufficient to constitute an adverse job
action.
31
the challenged personnel action,” Ford, 629 F.3d at 206 (emphasis in original), discriminatory
intent is only one of “the two essential elements of [an age] discrimination claim,” Baloch, 550
F.3d at 1196. Accordingly, the defendants are entitled to summary judgment on Count I.
B. Count II: Pattern and Practice of Age Discrimination
In Count II, the plaintiff alleges that the EPA engaged in a pattern and practice of
discrimination against older employees in violation of the ADEA. See SAC ¶¶ 59–75. This
count was initially dismissed, see Townsend I, 236 F. Supp. 3d at 306, but was reinstated in light
of more specific allegations added in the Second Amended Complaint, see Townsend II, 282 F.
Supp. 3d at 127–28. In allowing this claim to go forward, however, the plaintiff was cautioned
that “[t]he evidence remains thin inasmuch as it is far from clear, even accepting the plaintiff’s
allegations as true, that discrimination has been the employer’s regular or systemwide pattern or
practice, i.e., that the discrimination was the company’s standard operating procedure—the
regular rather than the unusual practice.” Id. at 128 (internal quotation marks omitted) (quoting
Aliotta v. Bair, 614 F.3d 556, 562 (D.C. Cir. 2010) (quoting Teamsters, 431 U.S. at 335)).
Nearly two years later, the evidence is so bare that the defendants are entitled to summary
judgment.
1. Legal Standard
The Supreme Court laid out the framework for pattern or practice discrimination suits in
Teamsters, 431 U.S. at 336. Under this framework, the plaintiff “[bears] the initial burden of
making out a prima facie case of discrimination.” Id. (citing Albemarle Paper Co. v. Moody, 422
U.S. 405, 425 (1975), then citing McDonnell Douglas, 411 U.S. at 802). Specifically, a plaintiff
“alleg[ing] a systemwide pattern or practice” of unlawful discrimination must demonstrate that
such discrimination “was the [employer’s] standard operating procedure[,] the regular[,] rather
32
than the unusual[,] practice,” and accordingly, must “prove more than the mere occurrence of
isolated or ‘accidental’ or sporadic discriminatory acts.” Id. (footnote omitted); see also Aliotta,
614 F.3d at 562 (explaining that “[d]isparate treatment claims brought under the ADEA may
involve ‘an isolated incident of discrimination against a single individual, or . . . allegations of a
‘pattern or practice’ of discrimination affecting an entire class of individuals.’” (quoting Palmer
v. Shultz, 815 F.2d 84, 90 (D.C. Cir. 1987)); Schuler v. PricewaterhouseCoopers, LLP, 514 F.3d
1365, 1370 (D.C. Cir. 2008) (applying the Teamsters framework to the ADEA). “Once a prima
facie case is established” under the Teamsters framework, “the burden shifts to the employer to
rebut the inference of discrimination by showing the employees’ proof is either inaccurate or
insignificant. . . . [f]ailure to rebut the inference moves a pattern and practice case to the remedial
stage where each class member must show individual harm.” Aliotta, 614 F.3d at 563 (citing
Teamsters, 431 U.S. at 360–62).
“In a disparate treatment claim, plaintiffs seek to prove an employer intentionally treated
some people less favorably than others because of their age.” Id. at 561 (citing Reeves, 530 U.S.
at 141). “[I]n a disparate impact claim, plaintiffs challenge employment practices that are
‘facially neutral in their treatment of different groups but that in fact fall more harshly on one
group than another and cannot be justified by business necessity,’” and accordingly, “[p]roof of
discriminatory motive . . . is not required.” Id. at 561–62 (ellipses in original) (internal quotation
marks omitted) (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993)). “Plaintiffs
alleging age discrimination in violation of the ADEA may seek recovery under both disparate
treatment and disparate impact theories of recovery.” Id. at 561 (citing Smith v. City of Jackson,
544 U.S. 228, 236–40 (2005)).20 “Doctrinally speaking, . . . the central distinction between a
20
Whether the ADEA, by contrast to Title VII and other employment discrimination statutes, allows disparate
impact claims against the federal government is debated. See, e.g., Anderson v. Duncan, No. 06-cv-1565 (RMC),
33
disparate impact case and a ‘pattern or practice’ disparate treatment case is that only the latter
requires proof of discriminatory intent. . . . But if intent can be inferred from observed statistical
disparities, the more practical distinction is that disparate impact plaintiffs identify particular
employment practices that are allegedly responsible for those disparities, while ‘pattern or
practice’ [disparate treatment] plaintiffs do not.” Davis v. District of Columbia, 949 F. Supp. 2d
1, 8–9 (D.D.C. 2013) (citations omitted).
2. The Plaintiff’s Evidence of Pattern or Practice Disparate Treatment
The pattern or practice claim brought by the plaintiff in Count II is of the disparate
treatment variety. See Townsend I, 236 F. Supp. 3d at 306; Townsend II, 282 F. Supp. 3d at 127.
Specifically, the plaintiff alleges that “[s]enior EPA officials, beginning in 2013–2013 [sic],
targeted older, more experienced personnel (including Plaintiff, Dr. Jennifer Seed, Dr. Kay
Austin and Dr. Phillip Sayre) and subjected them to disparate treatment, continuing hostile work
environments, intolerable working conditions, and prohibited personnel practices considered
constructive adverse actions.” SAC ¶ 60; see also id. ¶ 63. Assuming the plaintiff, as an
individual, may maintain a pattern or practice claim, in order to survive summary judgment on
the prima facie case, he must provide evidence sufficient for a jury to conclude that the EPA
“intentionally treated some people less favorably than others because of their age,” Aliotta, 614
F.3d at 561 (citing Reeves, 530 U.S. at 141), and that this discriminatory treatment was the
agency’s “standard operating procedure,” Teamsters, 431 U.S. at 336. Despite having nearly two
2013 WL 12328768, at *2 (D.D.C. Nov. 15, 2013) (Collyer, J.) (noting a “substantial ground for difference of
opinion as to . . . whether disparate impact claims against the federal government are cognizable under the ADEA”)
(collecting cases); American Federation of Government Employees TSA Local 1 v. Hawley, 481 F. Supp. 2d 72, 91–
92 (D.D.C. 2006) (Kollar-Kotelly, J.) (holding that such claims against the federal government are “not cognizable
under the ADEA”); Silver v. Leavitt, No. Civ.A. 05-0968 JDB, 2006 WL 626928, at *13 (D.D.C. Mar. 13, 2006)
(Bates, J.) (same); Evans v. Atwood, 38 F. Supp. 2d 25, 28–30 (D.D.C. 1999) (Urbina, J.) (same); but see Breen v.
Peters, 474 F. Supp. 2d 1, 6–7 (D.D.C. 2007) (Roberts, J.) (concluding that “the plain language of [the ADEA] does
not support the distinction between disparate treatment and disparate impact”). Regardless, the instant litigation
involves only a disparate treatment theory.
34
years to do so, the plaintiff has provided almost no further evidence, and has failed to make a
prima facie case under Teamsters, id.
As noted, Dr. Seed is currently engaged in her own litigation against the EPA, see Seed v.
EPA, No. 16-cv-748 (TSC), and has alleged in that litigation and in documents submitted in this
instant litigation that Dr. Henry discouraged her from seeking a Branch Chief position in the
reorganization due to her age, see Seed Decl.¶ 2–4, 7; Seed Dep. at 2–3. Of the other employees
the plaintiff lists as having been discriminated against on the basis of age, assuming the
reorganization took effect as proposed, each retained the exact same pay grade and, in some
instances, title, while simply moving branches following the reorganization. See Reorganization
Mem., Current and Proposed Staffing Plans. Specifically, of the two “Austins” listed, neither of
whom has the first name “Kay,” Helen K. Austin moved from Associate Division Director of the
Economics Exposure & Technology Division, GS-1301-15 to Senior Advisor (Env. Scientist),
GS-1301-15 in the Immediate Office of the RAD, id. at 12, 22, while Sharon Austin remained a
Chemical Engineer, GS-0893-13, moving from the Chemical Engineering Branch of the
Economics Exposure & Technology Division to Assessment Branch I of the RAD, id. at 13, 23,
and Phillip Sayre remained a Biologist, GS-0401-15, moving from the New Chemicals Screening
& Assessment Branch of the RAD to Assessment Branch IV of the RAD, id. at 17, 25.
Not only has the plaintiff failed to offer any evidence that Austin or Sayre suffered
adverse treatment, age-related or otherwise—he has failed even to provide an explanation as to
why he believes they did. Instead, he merely states that he has “[n]o doubt at all” that the EPA
discriminated against Austin and Sayre on the basis of their age, Pl.’s Dep. at 29, ECF No. 74-4,
yet he also acknowledges that this is his “opinion,” that he is not sure of their age, and concedes
“I don’t know exactly what happened and why. All I can tell you is based on perceptions [and]
35
observations,” id. at 42, 45–46, ECF No. 73-7. Neither Austin nor Sayre has provided a
declaration, deposition, or any other form of evidence to support the plaintiff’s opinion. The
plaintiff only mentions Sayre and Austin once in his opposition to the defendants’ motion, and
then only to assert, without explanation, that the government’s questions in his own deposition
somehow create a genuine issue of material fact. See Pl.’s Opp’n at 10–11 ¶ 23. At no point in
the nearly two years since the pattern or practice claim was permitted to proceed has the plaintiff
elaborated as to how specifically any EPA employee other than himself or Dr. Seed might have
suffered an adverse employment action. As discussed supra, Section III.A.2, a discrimination
plaintiff’s own, self-serving testimony can create a genuine issue of material fact when the
plaintiff testifies that she or he witnessed facts which would satisfy the elements of the claim.
See Mayorga, 928 F.3d at 93–94. When the plaintiff instead offers mere speculation and
conclusory statements akin to office gossip or grumbling, the plaintiff’s testimony does nothing
to help the claim survive summary judgment. See Sloan, 689 F. Supp. 2d at 122 (once discovery
is closed, the plaintiff “can no longer rely on unsupported allegations”). Here, the plaintiff offers
neither direct nor circumstantial evidence that would even begin to establish a prima facie case
of a pattern or practice of discrimination with regards to anyone other than himself or Dr. Seed.
Hence, for purposes of evaluating the defendants’ motion to dismiss Count II, the only relevant
evidence supportive of this pattern and practice claim relates to the plaintiff and Dr. Seed’s
allegations that they suffered disparate treatment because of their age.
The plaintiff’s evidence of age discrimination against himself is discussed at length,
supra, Section III.A.2, with his most powerful evidence the statements allegedly made by Dr.
Henry to him and to Dr. Seed. Even if the plaintiff could convince a jury that both he and Dr.
Seed were actually subjected to the alleged statements by Dr. Henry about promoting younger
36
employees and that they were thereby “intentionally treated . . . less favorably than others
because of their age,” Aliotta, 614 F.3d at 561 (citing Reeves, 530 U.S. at 141), he could only
establish “the mere occurrence of isolated or ‘accidental’ or sporadic discriminatory acts,”
Teamsters, 431 U.S. at 336, not that age discrimination was the EPA’s “standard operating
procedure,” id. Two instances of alleged discrimination do not a pattern or practice make. Thus,
the plaintiff has failed to establish a prima facie case under the Teamsters framework. If the
plaintiff were instead attempting to proceed on a disparate impact theory, his claim would fare no
better, as he has offered no statistical evidence whatsoever to support his allegations.
Even if the plaintiff could establish a prima facie case, and even if the defendants
subsequently failed to rebut that case, the plaintiff lastly failed to show how he could recover
after advancing to “the remedial stage where each class member must show individual harm,”
Aliotta, 614 F.3d at 563 (citing Teamsters, 431 U.S. at 361–62), because he cannot demonstrate
that he himself suffered an adverse employment action, as discussed supra Section III.A.3. To
the extent the plaintiff has pursued his pattern and practice disparate treatment claim in Count II
to bolster his evidence of discriminatory intent in Count I, that strategy is flawed. The plaintiff’s
evidentiary obstacle is not evidence of discriminatory intent, but evidence of an adverse
employment action. Without any evidence that the plaintiff suffered material harm as a result of
the plaintiff’s reassignment, he cannot invoke Teamsters to transform evidence of discrimination
against other employees into a cognizable claim for himself.
* * *
In sum, the defendants are entitled to summary judgment on both the age discrimination
claim in Count I and the pattern or practice claim in Count II, because no genuine issue of
material fact remains by which a reasonable trier of fact could find for the plaintiff.
37
IV. CONCLUSION
For the foregoing reasons, the defendants’ motion for summary judgment is GRANTED
as to both Counts.
An order consistent with this Memorandum Opinion will be entered contemporaneously.
Date: August 27, 2019
__________________________
BERYL A. HOWELL
Chief Judge
38
Townsend v. United States of America
Combined Opinion