which nevertheless affirmed Klombers' decision to terminate plaintiff.
Plaintiff maintains that his termination was discriminatory, based on age, in violation of the ADEA. He also asserts state law claims for breach of contract and breach of the implied covenant of good faith and fair dealing.
A. Summary Judgment Standard
Summary judgment is appropriate when there is "no genuine issue as to any material fact." Fed. R. Civ. P. 56. "The inquiry performed is the threshold inquiry of determining whether there is a need for trial -- whether, in other words, there are any genuine issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, 477 U.S. 242, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to believed, and all justifiable inferences are to be drawn in his favor." Id. 106 S. Ct. at 2513. At the same time, however, Rule 56 places a burden on the nonmoving party to "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986).
B. Count I -- Age Discrimination
Defendants have moved for summary judgment as to Count I on the ground that plaintiff has failed to produce any evidence, direct or circumstantial, necessary to establish a prima facie case of age discrimination. In the alternative, defendants argue that they have met their burden of coming forward with a legitimate, non-discriminatory reason for their decision to terminate plaintiff and plaintiff has failed to present facts showing that this reason was pretextual, i.e., plaintiff has not shown that he was fired because of his age. While the plaintiff's evidence is somewhat weak, the Court concludes that plaintiff has presented genuine issues of material fact sufficient to overcome defendants' motion.
In cases brought under the ADEA, the allocation of evidentiary burdens is equivalent to those that have been established in Title VII discrimination cases. See Skelton v. Action, 668 F. Supp. 25, 28 (D.D.C. 1987); Cuddy v. Carmen, 246 U.S. App. D.C. 25, 762 F.2d 119, 122 (D.C. Cir. 1985). In termination cases the plaintiff must first present a prima facie case of age discrimination by showing that (1) he belongs to the group protected by the relevant statute (here the group of persons between ages 40 and 70); (2) the plaintiff was qualified for the position in question; (3) the plaintiff was terminated; and (4) a person not of the protected group was selected. See Skelton, 668 F. Supp. at 28; Cuddy, 762 F.2d at 122; Krodel v. Young, 242 U.S. App. D.C. 11, 748 F.2d 701, 706 (D.C. Cir. 1984), cert. denied, 474 U.S. 817, 88 L. Ed. 2d 51, 106 S. Ct. 62 (1985); Coburn v. Pan American World Airways, Inc., 229 U.S. App. D.C. 61, 711 F.2d 339, 342 (D.C. Cir. 1983). Once a plaintiff has accomplished this, the burden then shifts to the defendant to rebut the resulting presumption of discrimination. Skelton, 668 F. Supp. at 28. To do so, a defendant must produce evidence "that plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason." Id. at 28, quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). If this burden of production is satisfied, the plaintiff must then prove his case "either indirectly by showing that the reason proffered by the defendant was in fact a pretext or directly by showing that it was more likely than not that the defendant was actually motivated by discrimination." Skelton, 668 F. Supp. at 28, quoting Cuddy, 762 F.2d at 123. Therefore, plaintiff ultimately bears the burden of proving that age was a "determining factor" in the termination, and that "but for" the employer's discriminatory motive, he would not have been fired. See Skelton, 668 F. Supp. at 28-29.
In Skelton, 668 F. Supp. 25, the Court summarized the burden placed on a plaintiff in an age discrimination case in order to defeat a motion for summary judgment:
In an age discrimination case, the Court's teachings mean that, once the defendant has moved for summary judgment by producing evidence that there existed legitimate, nondiscriminatory reasons for the plaintiff's nonselection, the plaintiff must then demonstrate the existence of material facts indicating that the reasons proffered by the defendant are merely pretextual or that the defendant was in fact motivated by a discriminatory motive. Failure to produce such evidence at the summary judgment stage entitles the defendant to judgment.
668 F. Supp. at 29 (citations omitted).
Plaintiff cannot sustain his burden of establishing discriminatory motive merely by showing, without more, that he was better qualified than the person who replaced him. Unless the employer's decision to fire the plaintiff is shown to be tainted by unlawful discrimination, it must be allowed to stand, even if it appears to be unwise. See id. at 27. Furthermore, it is not enough for plaintiff to show a mere "scintilla" of evidence to create a genuine issue of fact. There must be sufficient evidence of record to support a finding that the reasons proffered by defendant are pretextual. See Liberty Lobby, 477 U.S. at 252.
It is with these standards and principles in mind, that the Court turns to the instant case. A careful review of the record reflects sufficient facts in support of plaintiff's claim that his termination was based on age. Although plaintiff may not ultimately prevail at trial (and the case presented here is not overwhelming), he has, nonetheless, raised issues of material fact sufficient to defeat summary judgment.
Of the four elements necessary to establish a prima facie case of age discrimination, only the second (plaintiff was "qualified") and fourth (plaintiff was replaced by someone not in the protected group) are at issue in this case. As to the second element, defendants assert that Buttell was not qualified to continue as Director of Public Affairs. In making this assertion, defendants argue that only Klombers' assessment of plaintiff's performance is relevant; plaintiff's own assessment has no bearing whatsoever.
In order to support the prima facie case requirement that plaintiff is "qualified", plaintiff must show that he met his employer's legitimate expectations. Smith v. Chamber of Commerce of United States, 645 F. Supp. 604, 607 (D.D.C. 1986). Buttell challenges the evaluations of his work performance based in large part on his own perceptions. He also relies on his nineteen years of service at APMA, with annual bonus and salary increases, as evidence of his continued "qualification".
Although it is the perception of the decisionmaker, rather than the employee, which is relevant, id. at 608; Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980); McDaniel v. Mead Corp., 622 F. Supp. 351, 360 (D.C.Va. 1985), the Court notes that the basis for defendants' determination that plaintiff was not qualified is ambiguous at best. Klombers testified at deposition as to plaintiff's qualifications. He stated that
it was obvious to me as Executive Director that Mr. Buttell's performance was not meeting with my expectations, and that occurred fairly early on. Not in all respects . . . I cannot say that I am dealing with someone who was grossly deficient . . . But, there were important issues . . . critical responsibilities and performance levels that were obviously not there.