Ford v. Mabus

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 24, 2010 Decided December 10, 2010

No. 09-5041

RICHARD T. FORD,
APPELLANT

v.

RAYMOND EDWIN MABUS, JR., SECRETARY OF THE NAVY,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-00507)

Michael G. Kane argued the cause for appellant. With
him on the briefs was David R. Cashdan.

Daniel B. Kohrman and Melvin Radowitz were on the
brief for amicus curiae AARP in support of appellant.

Christian A. Natiello, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney.

Before: SENTELLE, Chief Judge, HENDERSON and TATEL,
Circuit Judges.
 2

Opinion for the Court filed by Circuit Judge TATEL.

Opinion concurring in the judgment filed by Circuit
Judge HENDERSON.

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

I.
Born December 21, 1940, appellant Richard Ford is an
engineer who works on a variety of issues related to
electromagnetic effects. With the exception of a brief hiatus
in the private sector from 1984 to 1986, Ford worked in
various capacities for the Department of the Navy from 1964
to 1997. In the 1970s, Ford participated in founding
SEMCIP, a program focused on testing and improving ship
systems to reduce electromagnetic problems. Although Ford
retired in 1997, he continued working as a consultant both for
 3
the Navy and in the private sector. In 2005, he returned as a
full-time Navy employee in order to reindex his pension.

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

Before Ford was interviewed for the branch head
position, Mark Johnson, twenty-five years Ford’s junior, was
selected as Technical Warrant Holder by a hiring panel
consisting of three high-ranking Navy engineers, Patrick
Hartman, James Meng, and Vance Brahosky. The
interviewing panel for the branch head position included
Brahosky, as well as Paul Mann, another high-ranking Navy
engineer. The panel recommended to Meng, the hiring
official, that the branch head position also go to Mark
Johnson. According to the testimony of Edward Wallace, a
former NAVSEA employee who claims he was forced out
because of his age, Meng had made numerous comments
about the negative impact of an aging workforce on the health
of the organization and about the need for younger
employees. Brahosky testified that he drafted a memo to
Meng explaining the recommendation, but in discovery he
was unable to produce that memo. When Brahosky phoned
Ford to inform him that Johnson had been given the job,
Brahosky explained that the decision turned on Ford’s lack of
“topside design experience” and on his statement during the
interview that he had trouble dealing with bureaucracy. Ford
challenged both explanations. He then set up a meeting with
Paul Mann during which Mann told him that his references
were negative but refused to reveal which references he had
 4
contacted. Asked directly by Ford whether age had played a
role in the decision, Mann answered no.

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

II.
We begin with the district court’s application of the
McDonnell Douglas framework, under which the employer,
once the plaintiff has made out a prima facie case, bears the
burden of producing a non-discriminatory explanation for the
challenged personnel action. See McDonnell Douglas, 411
U.S. at 802–03 (laying out this test); Krodel v. Young, 748
F.2d 701, 705 (D.C. Cir. 1984) (applying McDonnell Douglas
to ADEA cases). The plaintiff, however, bears the ultimate
burden of proving that discriminatory animus was the
determining or but-for cause of the personnel action. See
McDonnell Douglas, 411 U.S. at 803–05. The plaintiff may
satisfy this burden “either indirectly by showing the
employer’s reason is pretextual or directly by showing that it
was more likely than not that the employer was motivated by
discrimination.” Forman v. Small, 271 F.3d 285, 292 (D.C.
Cir. 2001).

In this case the district court applied McDonnell Douglas
and found that age was not the but-for cause of the Navy’s
 5
decision to promote Johnson instead of Ford. Ford challenges
this conclusion and a number of related fact-findings, which
we review under a “clearly erroneous” standard. Fed. R. Civ.
P. 52(a)(6). Specifically, we set aside district court fact-
findings only if we are “left with the definite and firm
conviction that a mistake has been committed.” United States
v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).

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

Ford next contends that the district court erred in
crediting Brahosky’s explanation for the promotion decision.
Addressing the Technical Warrant Holder hiring process in
particular, Ford described Brahosky as cagey, pointing out
that he denied participating in the process but then admitted to
 6
doing so when shown documentary evidence that he had
attended the meeting. Ford also argues that given the timing
of the two hirings, Brahosky’s inconsistency reveals that
NAVSEA rushed the Technical Warrant Holder hiring
process to give Johnson, the younger candidate, an advantage
for the branch head position. But the district court declined to
make the logical leaps Ford’s argument required, and Ford
has given us no basis for second-guessing that judgment.

In a related claim, Ford argues that the district court erred
in crediting Brahosky’s testimony despite its inconsistencies.
Brahosky initially told Ford that he failed to get the job
because of his trouble dealing with bureaucracy and his lack
of topside design experience, yet on the stand Brahosky
acknowledged Ford’s topside design experience, pointing
instead to his lack of topside integration experience, as well
as to his lack of financial management experience. Although
this shift indeed qualifies as evidence of pretext, cf. Jones v.
Barnhart, 349 F.3d 1260, 1266 (10th Cir. 2003), the Navy’s
explanation—that Brahosky’s interview notes emphasize his
concerns regarding integration rather than design and that
Brahosky’s testimony about financial management is “merely
[an] additional rationale[],” Appellee’s Br. 20—supports the
district court’s conclusion that the inconsistency was not
dispositive of pretext. Likewise, the missing recommendation
memo, which also led the district court to question
Brahosky’s credibility, was simply one factor of many for
proof of pretext. Despite the district court’s suspicion about
Brahosky’s credibility, we find ourselves far from a “definite
and firm conviction,” U.S. Gypsum Co., 333 U.S. at 395, that
the district court erred in finding the proffered reasons for the
employment decision to be credible.

Next, Ford claims that the district court erred in failing to
find that he was a significantly better candidate than Johnson.
 7
Ford points to his own forty years of experience and notes
that the whole first page of Johnson’s resume deals with just
two months of work and that the second deals with just two
years. The Navy counters that, as Ford conceded in testimony
before the district court, Johnson actually had over twenty
years of relevant experience. Although the district court may
not substitute its judgment for that of the employer regarding
an applicant’s job qualifications, it “could infer discrimination
if the evidence showed a reasonable employer would have
found plaintiff significantly better qualified for the job.”
Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006); cf.
Cuddy v. Carmen, 762 F.2d 119, 127 (D.C. Cir. 1985) (Cuddy
II) (finding that statement made by the hiring official that he
selected one candidate over another because the selected-
candidate was best qualified was “far from overwhelming”
but was “substantial enough to support the finding” that the
employer had a legitimate reason for its decision). Here,
although Ford’s qualifications are impressive and although
the hiring committee appeared to give great weight to
Johnson’s two months as interim branch head, the district
court accepted Brahosky’s testimony that Johnson was
qualified for the job and that the choice between the
candidates was difficult. Absent evidence that Ford was
“significantly better qualified” than Johnson, Holcomb, 433
F.3d at 897, the district court did not err, much less clearly so,
by refusing to draw an inference of discrimination.

Ford also challenges several of the district court’s
evidentiary rulings. Our review is for abuse of discretion.
Muldrow v. Re-Direct, Inc., 493 F.3d 160, 166 (D.C. Cir.
2007) (stating this standard).

Ford first argues that the district court erred by relying on
Mann’s testimony that he made his hiring decision in large
part because of a conversation with Ron Bradley, the branch
 8
head Johnson was hired to replace. Bradley told Mann that
Ford had “axes to grind” and was not a team player. Trial Tr.
at 298 (Dec. 16, 2008) (included at J.A. 330). At trial, Ford’s
counsel objected on the grounds of hearsay and relevance.
Here Ford reiterates both points. Ford insists that the
evidence was irrelevant because the conversation occurred
after Brahosky had made up his mind. As the Navy points
out, however, the conversation occurred before Mann told
Brahosky that he would support the recommendation to hire
Johnson. While Brahosky claimed not to have been
influenced by Bradley’s comments or to have received
feedback on the decision from Mann, Mann testified that he
signed off on Brahosky’s recommendation. Given that Mann
was extremely enthusiastic about Ford during the interview
but then supported the recommendation to hire Johnson, it is
hardly surprising that the district court found that the phone
call with Bradley “goes a long way” toward explaining the
decision. Trial Tr. at 320 (Dec. 16, 2008) (included at J.A.
352). If Brahosky had sole authority to make the decision,
Bradley’s comments would be irrelevant, but because Mann
also weighed in, the factors shaping his decision were fair
game for the court to rely on. As to Ford’s hearsay argument,
nowhere in his brief does he explain why the challenged
statement, which the district court admitted as evidence of
Mann’s motives rather than for the truth of its content, is
nonetheless hearsay.

Finally, Ford challenges the district court’s exclusion of
Wallace’s age discrimination complaint on the grounds that it
was irrelevant to Ford’s claim. A retired NAVSEA
employee, Wallace alleged that NAVSEA forced him out
because of his age. According to Ford, Wallace’s complaint
demonstrates the discriminatory atmosphere in which he was
working and reveals the states of mind of the same set of
decisionmakers. In order to prevail, however, Ford must
 9
demonstrate not only that the exclusion amounted to an abuse
of discretion, but also that it affected his “substantial rights.”
Whitbeck v. Vital Signs, Inc., 159 F.3d 1369, 1372 (D.C. Cir.
1998). Given that Wallace’s testimony covered the same
ground as Wallace’s complaint, Ford has failed to meet this
demanding burden.

III.
We thus turn to Ford’s argument that even if his
challenges to the district court’s application of the McDonnell
Douglas test fail, he may nonetheless prevail under Price
Waterhouse. In that case, which arose under Title VII of the
Civil Rights Act of 1964, the Supreme Court held that a
plaintiff can prevail where the employer acted with mixed
motives. Specifically, “once a plaintiff . . . shows that
[discriminatory animus] played a motivating part in an
employment decision, the [employer] may avoid a finding of
liability only by proving that it would have made the same
decision even if it had not allowed [discriminatory animus] to
play such a role.” Price Waterhouse, 490 U.S. at 244–45.

Acknowledging this alternative approach, the district
court asked for supplemental briefing on “whether an
employer will be liable for age discrimination if the
employment decision is infected in some way by age
discrimination, even if it may not have been the determinative
factor.” Trial Tr. at 321 (Dec. 16, 2008) (included at J.A.
353). Although the court was persuaded to apply a mixed-
motives analysis, it concluded that Ford had failed to meet his
threshold burden, observing that “[i]t does not strike me as
inappropriate, unlawful, or even non-PC for the Navy to take
a look at the resources it has to deal with technical problems
and to decide for itself whether those resources are aging, and
to decide for itself that it needs to replenish those resources
with younger people. I don’t understand what the problem is
 10
with that.” Ford v. Winter, No. 08-0507, slip op. at 4 (D.D.C.
Jan. 15, 2009) (included at J.A. 631).

Ford argues that the district court “erred in determining
what kind of showing a plaintiff must make to establish the
‘motivating factor’ standard under Price Waterhouse.”
Appellant’s Br. 55. In response, the Secretary argues that in
Gross v. FBL Financial Services Inc., the Supreme Court
foreclosed any use of mixed-motives analysis in ADEA cases.
129 S. Ct. 2343 (2009). Gross arose under ADEA section
623, which prohibits age discrimination by private employers.
There the Court held that the burden never shifts to the
employer. Id. Gross, the Secretary insists, “is equally
applicable to this case and to the interpretation of § 633a.”
Appellee’s Br. 8.

Prior to Gross, the ADEA, which was modeled on Title
VII, was interpreted essentially in lockstep with that statute.
E.g., Trans World Airlines, Inc. v. Thurston, 469 U.S. 111,
121 (1985). In Gross, however, the Supreme Court held that
because the Civil Rights Amendments of 1991 codified a
mixed-motives analysis for Title VII cases but not for ADEA
cases, “the Court’s interpretation of the ADEA is not
governed by Title VII decisions such as . . . Price
Waterhouse.” Gross, 123 S. Ct. at 2349. As a result, the
Court explained, its “inquiry . . . must focus on the text of the
ADEA to decide whether it authorizes a mixed-motives age
discrimination claim.” Id. at 2350. Examining that text, the
Court addressed two questions: what standard of causation
does section 623 impose, and does the statute authorize Price
Waterhouseesque burden shifting?

Considering the first question, the Court pointed out that
section 623 prohibits personnel decisions made “because of” a
person’s age and explained that the “ordinary meaning of . . .
 11
‘because of’ age is that age was the ‘reason’ that the employer
decided to act.” Id. Therefore, the Court held, section 623
requires that “a plaintiff must prove that age was the ‘but-for’
cause of the employer’s adverse decision.” Id.

Moving on to the second question, the Court explained
that “[w]here the statutory text is silent on the allocation of
the burden of persuasion, we begin with the ordinary default
rule that the plaintiffs bear the risk of failing to prove their
claims.” Gross, 123 S. Ct. at 2351 (internal citations and
quotation marks omitted). Nothing in section 623’s language,
the Court concluded, gave “warrant to depart from the general
rule in this setting.” Id.

According to the Secretary, Gross requires the same
outcome here, i.e., that section 633a creates a but-for standard
and offers “no warrant” to depart from the “default rule” that
places the burden of proof on the plaintiff. In support, the
Secretary emphasizes that the 1991 amendments to Title VII
no more amended section 633a than they amended section
623. As a result, the Secretary argues, the Supreme Court’s
holding in Gross that Price Waterhouse has no applicability
to section 623 applies with equal force to section 633a. So far
we agree. But the Secretary goes on to argue that Gross
requires us to hold that section 633a also creates a but-for test.
On this point, we disagree.

Beginning with Gross’s first question, we look, as that
decision directs, to the statute’s language. Section 633a
provides that “All personnel actions . . . shall be made free
from any discrimination based on age.” 29 U.S.C. § 633a(a).
By contrast, section 623, the provision at issue in Gross,
provides that “it shall be unlawful for an employer [to take a
personnel action] because of such individual’s age.” 29
U.S.C. § 623(a). Recognizing the “sharp[]” difference
 12
between these two provisions, the Supreme Court in Gomez-
Perez v. Potter described section 633a as a “broad, general
ban on ‘discrimination based on age.’ ” 553 U.S. 474, 486,
488 (2008) (quoting § 633a). Indeed, as the Court had
explained in an earlier case, Congress chose not to include the
federal government in the ADEA’s definition of employer and
instead “deliberately prescribed a distinct statutory scheme
applicable only to the federal sector.” Lehman v. Nakshian,
453 U.S. 156, 166 (1981) (citing S. 3318, 92d Cong. (1972), a
bill introduced prior to the addition of section 633a that would
have added the federal government to the definition of
employer). For our part, we observed in Forman v. Small that
“Congress used sweeping language when it . . . extended the
ADEA to cover federal agency employees.” 271 F.3d 285,
296 (D.C. Cir. 2001). To be sure, in Cuddy v. Carmen
(Cuddy I), this court did suggest, as the Secretary emphasizes,
that the standard for proving violations under the two
provisions is the same, but that statement related to the
application of the McDonnell Douglas test, which operates
identically under both provisions. 694 F.2d 853, 856 (D.C.
Cir. 1982). In any event, the sentence in Cuddy I that the
Secretary cites is dictum, and the case predates both Forman
and Gomez-Perez.

The Secretary nonetheless argues that section 633a’s
language is sufficiently similar to section 623’s that it too
should be interpreted as requiring a but-for test. In support,
the Secretary relies on section 633a’s use of the phrase “based
on,” pointing out that the Supreme Court has equated it with
“because of” or “but for.” Safeco Ins. Co. of Amer. v. Burr,
551 U.S. 47, 63–64 (2007). This argument ignores the very
different functions the parallel phrases—“because of” and
“based on”—play in the two provisions. In section 623,
“because of” modifies “to fail or refuse to hire . . . .” By
contrast, in section 633a “based on” modifies
 13
“discrimination.” So while a section 623 plaintiff must, as
Gross holds, show that the challenged personnel action was
taken because of age, a section 633a plaintiff must show that
the personnel action involved “any discrimination based on
age.”

Indeed, it is section 633a’s more “sweeping” language
that requires us to interpret it differently than section 623.
Were the Secretary correct—that section 633a requires a but-
for test—then a plaintiff who fails to demonstrate that age was
a determining factor but nonetheless shows that it was one of
several factors would lose even though the challenged
personnel action in that scenario was not “free from any
discrimination.” Consider a case where the evidence clearly
establishes that in rejecting an applicant for a job, the federal
employer relied both on the applicant’s age and on his
qualifications relative to other applicants. If that applicant is
unable to show that age was the but-for cause, he would lose
despite the fact that the personnel action was obviously not
“free from any discrimination.” Limiting plaintiffs to proving
liability only by establishing that consideration of age was the
but-for cause of the personnel action, as the Secretary urges,
would thus divorce the phrase “free from any discrimination”
from its plain meaning. To be faithful to that “sweeping”
language, we hold that plaintiffs may also prevail by proving
that age was a factor in the employer’s decision. Our
concurring colleague is “reluctant to agree that the Congress
intended, simply by dint of section 633a’s different phrasing,
to set up a legal framework for the federal government at odds
with that for a private employer.” Concurring Op. at 1. But it
is through the “dint of . . . phrasing” that Congress speaks,
and where it uses different language in different provisions of
the same statute, we must give effect to those differences.
See, e.g., Russello v. United States, 464 U.S. 16, 23 (1983)
(“We refrain from concluding here that the differing language
 14
in the two subsections has the same meaning in each. We
would not presume to ascribe this difference to a simple
mistake in draftsmanship.”).

Moreover, courts must look not for a particular quantum
of influence, as the district court appeared to do through use
of the word “substantial,” but for the existence of influence at
all. Why? Because 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.” “Any,”
after all, means any. See, e.g., United States v. Gonzales, 520
U.S. 1, 5 (1997) (explaining that “any” has “expansive
meaning” and holding that because “Congress did not add any
language limiting the breadth of that word” the court could
not impose a limit). That said, we emphasize that the
consideration of age must have some connection to the
challenged personnel action. See § 633a(a) (“All personnel
actions . . . shall be made free from any discrimination based
on age.”). In other words, we agree with the district court and
with our concurring colleague that nothing in section 633a
prohibits the Secretary from considering age when evaluating
the overall health of the workforce, so long as that
consideration does not bleed into particular personnel
decisions.

This brings us to Gross’s second question—does section
633a require burden shifting? The parties debate this question
extensively, but the answer is easy. With respect to the
“allocation of the burden of persuasion,” Gross, 129 S. Ct. at
2351 (internal quotation marks omitted), section 633a is just
as silent as is section 623. And as in Gross, we see no
“warrant to depart” from “the ordinary default rule that
plaintiffs bear the risk of failing to prove their claims.” Id.
(internal quotation marks omitted). The plaintiff thus has the
 15
burden to show that age was a factor in the challenged
personnel action.

Ford insists that the district court actually did find that
age was a factor in the Navy’s decision to promote Johnson
instead of him. Although some of the district court’s
statements could be so read, the court also said that age “may”
have been a factor. Whatever the district court meant, we are
unwilling to conclude that it made definitive findings pursuant
to a legal standard not articulated until today. We shall
therefore remand to give Ford an opportunity to show by a
preponderance of the evidence that age was a factor in the
Navy’s decision to deny him the promotion.

Before doing so, however, we must resolve an additional
issue that arises from the fact that Ford could end up with a
windfall if the Navy were required to provide instatement and
backpay based solely on a finding that age played some role
in the promotion decision. As the Supreme Court explained
in a case involving retaliation for protected First Amendment
activity, “[a] rule of causation which focuses solely on
whether protected conduct played a part . . . in a decision not
to rehire, could place an employee in a better position as a
result of the exercise of constitutionally protected conduct
than he would have occupied had he done nothing.” Mt.
Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 285 (1977). For this reason, we hold that although Ford
may establish section 633a liability by proving that age was a
factor in the Navy’s decision, thus entitling him 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 because, after all, if the
Navy would have made the same decision absent
consideration of age, Ford would have no right to the job.
 16
So, under Gross, who bears this additional burden of
proof? On the one hand, because section 633a is silent on the
allocation of the burden of proof, perhaps Ford must show, in
order to get instatement and backpay, that the Navy would
have given him the promotion but for its consideration of age.
On the other hand, because the Navy is in the best position to
establish its own motives, and because Congress imposed a
more rigorous anti-discrimination requirement on the federal
government than it did on private employers, perhaps there is
“warrant to depart” from the “default rule” and require the
Navy to prove it would have made the same decision anyway.

This issue, however, is entirely unbriefed. Moreover,
whether the issue even needs to be addressed in this case turns
on whether Ford is able on remand to show that age was a
factor in the denial of his promotion. Having flagged the
issue, we thus leave its resolution for another day.

IV.
To sum up, plaintiffs can establish liability under section
633a in one of two ways. First, they can make use of the
McDonnell Douglas evidentiary framework to establish that
age was the but-for cause of the challenged personnel action.
As we explain above, Ford has given us no basis for
questioning the district court’s conclusion that he failed to do
so here. Second, plaintiffs may establish liability by showing
that age was a factor in the challenged personnel action.
Given that the district court in this case never considered that
precise question, we reverse and remand for further
proceedings consistent with this opinion.
So ordered.
 KAREN LE CRAFT HENDERSON , Circuit Judge, concurring
in the judgment:
Although I agree with my colleagues that remand appears
to be called for, I write separately to highlight two concerns.
First, in my view, nothing we write today should be
interpreted to lessen an ADEA plaintiff’s burden to show that
age discrimination affected “the particular employment
decision” challenged and not “the mere existence of other,
potentially unrelated, forms of discrimination in the workplace.”
Thomas v. Nat’l Football League Players Ass’n, 131 F.3d 198,
204 (D.C. Cir. 1997) (emphasis omitted). Here, it is far from
clear that Ford has made the requisite showing of causality.
While the district court found that age “tinged” the hiring
process, Ford v. Winter, No. 08-0507, slip op. at 4 (D.D.C. Jan.
15, 2009), it also rejected any connection between the Navy’s
institutional concern with age and its particular decision not to
select Ford for the branch head position, concluding: “The
problem would be, of course, if in the individual case somebody
looked at somebody else and said, well, he doesn’t fit the
profile; we’ve got to have a younger guy here. I didn’t find any
evidence in this case that that was actually done.” Trial Tr. at
323 (Dec. 16, 2008).
Second, I am reluctant to agree that the Congress intended,
simply by dint of section 633a’s different phrasing, to set up a
legal framework for the federal government so totally at odds
with that for a private employer and, if so, why.* Although we

*
The majority invokes the old chestnut that “where [the Congress]
uses different language in different provisions of the same statute, we
must give effect to those differences.” Maj. Op. at 13-14. I of course
agree with that familiar rule of statutory construction but where the
statutory language appears within a complex regulatory scheme that
has been the subject of varying judicial interpretation, see, e.g., Aliotta
v. Bair, 614 F.3d 556, 561 (D.C. Cir. 2010) (section 633a requires that
age have “determinative influence” (quoting Reeves v. Sanderson
 2

once described section 633a as “sweeping,” our characterization
should be understood in the context of the question then before
us: whether section 633a prohibited age-based retaliation
notwithstanding the absence of a specific provision addressing
retaliation. Forman v. Small, 271 F.3d 285, 295-99 (D.C. Cir.
2001). As the U.S. Supreme Court explained in Gomez-Perez v.
Potter, section 633a is sweeping only in the sense that it
“contains a broad prohibition of ‘discrimination,’ rather than a
list of specific prohibited practices.” 553 U.S. 474, 487 (2008).
Nevertheless, in declaring that section 633a prohibits age
discrimination across a broad swath of personnel actions, neither
we nor the Supreme Court implied that section 633a requires a
lesser quantum of proof than does section 623.
Nor do I share my colleagues’ confidence that Gross v. FBL
Financial Services, Inc. unambiguously “directs” us in our
interpretation of section 633a today. Maj. Op. at 11. The Court
in Gross compares the particular text of section 623 of the
ADEA with its Title VII analogue and, plainly, does not touch
on section 633a. 129 S. Ct. 2343, 2348-51 (2009). Given its flat
declaration that the mixed-motives theory “is never proper in an
ADEA case” and its criticism of the burden-shifting framework
set forth in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989),
however, it is difficult for me to conclude the Court would
endorse the reading we announce today. Id. at 2346, 2351-52.

Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)); Forman v. Small,
271 F.3d 285, 292, 294 (D.C. Cir. 2001) (“a determining factor” or “a
substantial factor”); Cuddy v. Carmen, 694 F.2d 853, 856-57 (D.C.
Cir. 1982) (Cuddy I) (“a determining factor”), we should be hesitant
to read textual differences reflexively to signify such a departure from
our earlier understanding.