American World Airways Inc., 229 U.S. App. D.C. 61, 711 F.2d 339 (D.C. Cir. 1983) (citing Cuddy, 224 U.S. App. D.C. 287, 694 F.2d at 857); Hayman, 306 U.S. App. D.C. 227, 23 F.3d 535, 537.
While plaintiff, who is now 61, falls within the protected age group, and while he can show that he was not awarded the upgrade to TA-24 which he sought, he cannot satisfy the second prong of the four requirements, because he cannot show that he was qualified for the upgrade. To qualify for the TA-24 upgrade, plaintiff needed to receive an "Above Satisfactory" rating on at least eight of fifteen individual categories in his performance evaluation. Plaintiff received three "Above Satisfactory" markings and one "Superior" marking in the performance evaluation in question, which was insufficient to warrant the upgrade. Plaintiff therefore cannot satisfy the requirements for a prima facie case of age discrimination with respect to WMATA's failure to upgrade him from a TA-22 Superintendent to a TA-24 Superintendent.
Plaintiff contends that it was the scope (or lack of scope) of his duties in the RTRA Disciplinarian position that prevented him from achieving the marks necessary for an upgrade, and that WMATA purposely placed him in the position to prevent him from obtaining the upgrade. WMATA apparently recognized that the RTRA Disciplinarian position did not present as likely an opportunity for advancement to the TA-24 level: Aubrey Burton informed plaintiff in his May 26, 1992, letter that, since the position plaintiff then held was "not one that would necessarily support an upgrade to TA-24," plaintiff would be reassigned to a Line Superintendent position where the upgrade was available and would be evaluated every six months. Plaintiff would have the Court speculate that this entire process -- the placement of plaintiff in the RTRA Disciplinarian position, the (as yet unattributed) decision to make a TA-24 grade available to those Superintendents who averaged "Above Satisfactory" ratings on their evaluations, the fact that the RTRA Disciplinarian position apparently did not present the opportunity for such ratings, and the ensuing transfer of plaintiff to a position where he was eligible for those ratings -- was part of a convoluted conspiracy to discriminate against plaintiff because of his age. Plaintiff has shown not a shred of evidence to support these multiple leaps of logic, and the Court will not go that route.
2. WMATA's Demotion of Plaintiff to Station Manager
Plaintiff can make out a prima facie case of age discrimination with respect to his demotion. Plaintiff was 57 when he was demoted to Station Manager, he was qualified for the Superintendent-level job he had held for many years, he was demoted, and other Superintendents younger than he were not demoted. The burden of production, therefore, shifts to defendant to articulate a legitimate, nondiscriminatory reason for plaintiff's demotion.
The reason is clear: plaintiff was found by a neutral investigative panel composed, among others, of the head of WMATA's Office of Labor Relations, to have committed a major breach of WMATA's rules of conduct by referring to his AGM's national origin in an expletive-laden outburst in front of two other WMATA employees.
Since defendant has produced a nondiscriminatory reason for plaintiff's demotion, the burden shifts back to plaintiff to show pretext, and this burden "now merges with the ultimate burden of persuading the court that [he] has been the victim of intentional discrimination." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 1093, 67 L. Ed. 2d 207 (1981); see also Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S. Ct. 1701, 1706, 123 L. Ed. 2d 338 (1993) (a disparate treatment claim under the ADEA "cannot succeed unless the employee's [age] actually played a role in that process and had a determinative influence on the outcome").
Plaintiff has submitted evidence that other, younger employees, though perhaps not at the Superintendent level, were found to have committed like (or more egregious) violations of the WMATA rules of conduct and were not demoted to a significantly lower-level position, but instead were either counseled by supervisors, reprimanded, or suspended for a short period of time. See Pl.'s Opp., Exs. 29-32. A genuine issue of fact therefore exists as to whether the decision to demote plaintiff to a significantly lower-salaried position was motivated because of his age, or merely (as defendant suggests) because plaintiff, as a Superintendent, quite properly should be held to a higher standard of conduct than lower-level employees and therefore was dealt with more harshly. Because the Court finds that a genuine issue of material fact exists as to pretext, defendant's motion for summary judgment as to this portion of Count I of plaintiff's complaint is denied.
B. Plaintiff's Count I Retaliation Claim
The Court likewise finds that a genuine issue of material fact exists as to plaintiff's Count I
retaliation claim. The ADEA makes it unlawful
for an employer to discriminate against any of his employees... because such individual... has opposed any practice made unlawful by this section, or because such individual... has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.
29 U.S.C. § 623(d) (1988). This provision parallels the anti-retaliation provision contained in Title VII, see 42 U.S.C. § 2000e-3(a) (1988), and cases interpreting the latter are frequently relied upon in interpreting its ADEA counterpart. Passer v. American Chemical Soc., 290 U.S. App. D.C. 156, 935 F.2d 322, 330 (D.C. Cir. 1991).
To establish a prima facie case of retaliation, a plaintiff must show: "(1) that he or she engaged in activity protected by the statute; (2) that the employer . . . engaged in conduct having an adverse impact on the plaintiff and (3) that the adverse action was causally related to the plaintiff's exercise of protected rights." Passer, 935 F.2d at 331 (citations omitted). Plaintiff engaged in activity protected by the ADEA when he filed an internal grievance alleging that one of his supervisors was threatening him "because of [his] age and longevity." Pl.'s Opp., Ex. 15. The employer engaged in conduct having an adverse impact on plaintiff when it demoted him to a Station Manager position.
Finally, plaintiff was demoted by Fady Bassily less than a month after Bassily denied his internal grievance. "The causal connection component of the prima facie case may be established by showing that the employer had knowledge of the employee's protected activity, and that the adverse personnel action took place shortly after that activity." Wiggins v. Philip Morris, Inc., 853 F. Supp. 470, 474 n. 7 (D.D.C. 1994) (quoting Mitchell v. Baldrige, 245 U.S. App. D.C. 60, 759 F.2d 80, 86 (D.C. Cir. 1985)). At this stage in the litigation, and at this stage in the analysis of plaintiff's retaliation claim, plaintiff is entitled to the inference that a causal connection (however tenuous) existed between plaintiff's internal grievance and his subsequent demotion.
Since plaintiff has put forth a prima facie case of retaliation, the burden shifts to defendant to articulate a nondiscriminatory reason for its actions against plaintiff Mitchell, 759 F.2d at 87. As stated above, defendant can clearly do so: it found plaintiff to have committed a serious violation of its rules of conduct. But also as stated above, plaintiff has submitted evidence which, if credited by the finder of fact at trial, indicates that other, younger employees who had committed similar violations were not dealt with as harshly. Accordingly, defendant's motion for summary judgment on plaintiff's claim of retaliatory demotion is denied.
C. Plaintiff's Breach of Contract Claim
Plaintiff claims in Count Two that WMATA breached his contractual rights when it demoted plaintiff without interviewing him about the events of June 12. To support this claim, plaintiff argues that the WMATA Personnel Policies and Procedures Manual ("Manual") constitutes a contract of employment between WMATA and himself. Section 7.9(H) of the Manual provides that an employee who is alleged to have committed a Category 2 offense (the level of offense plaintiff was charged with having committed) "shall be given an opportunity to respond to the allegations before further action is taken." Since plaintiff was given a memorandum informing him that he had violated WMATA's rules of conduct prior to being given an opportunity to contest the allegations against him, plaintiff contends that WMATA breached its contract created between plaintiff and WMATA by virtue of the Manual. Plaintiff is in error.
Plaintiff is an "at-will" employee of WMATA and, as such, does not have an employment contract with the agency.
There is a presumption that a hiring not accompanied by an expression of a specific term of duration creates an employment relationship terminable at will by either party at any time. This presumption can be rebutted by evidence that the parties intended the employment to be for a fixed period, or subject to specific preconditions before termination.
Perkins v. District Gov't Employees Fed. Credit Union, 653 A.2d 842, 842 (D.C. 1995) (quoting Nickens v. Labor Agency of Metropolitan Washington, 600 A.2d 813, 816 (D.C. 1991)). To rebut the presumption of an at-will employment relationship, the parties must "state clearly their intention" to limit the employer's right to terminate. Id.; Littell v. Evening Star Newspaper Co., 73 App. D.C. 409, 120 F.2d 36, 37 (U.S. App. D.C. 1941); Minihan v. American Pharmaceutical Ass'n, 259 U.S. App. D.C. 10, 812 F.2d 726, 728 (D.C. Cir. 1987) (applying Littell's requirement of a "clear statement" in sustaining grant of summary judgment). The existence of a personnel manual, in and of itself, does not convert an employee's status from at-will to "permanent." See Minihan, 812 F.2d at 728. Rather, plaintiff must point to specific statements in the Manual that clearly reflect the parties' intent to transform the employment relationship from at-will to permanent. Plaintiff has failed to point to any such statements of intent.
Plaintiff contends that whether the Manual created a contract of employment is a factual issue that must be determined by a jury. Plaintiff is incorrect; where, as here, plaintiff has pointed to nothing in the Manual that evinces an intent to create an employment contract for a fixed period of time, summary judgment is appropriate. See Perkins, 653 A.2d at 843 (upholding grant of summary judgment on grounds that, as a matter of law, employment relationship was terminable at will). The Court finds that plaintiff's employment was an at-will employment relationship and therefore dismisses plaintiff's breach of contract claim.
D. Plaintiff's Wrongful Demotion Claim
As an alternative to his age discrimination and retaliation claims, plaintiff alleges in Count Three that, beginning in 1986, WMATA
undertook a campaign against plaintiff that was characterized by multiple reassignments, a refusal to promote plaintiff to TA-24, and ultimately his demotion to Station Manager ... all because plaintiff refused to follow [the 1986] directives by Bassily that would have resulted in violation of the Metrorail Safety Rules and instead reported Bassily's directives to the Superintendent of Safety....