plaintiff's problems in these areas existed long before plaintiff reached the threshold age protected by the ADEA. Former CEO David Maxwell complained of plaintiff's stubbornness and internal deficiencies in the mid-1980's, and the company had intended to terminate him at that time. Maxwell Dep. at 52-62. Plaintiff suggests that Maxwell consistently supported his work, and that his present criticism merely underscores the pretext argument. Pl.'s Opp. at 38. While Maxwell recognized plaintiff's external success with the company, nothing in the record indicates that Maxwell thought his internal work was commendable at any point in time. Maxwell's simultaneous praise of one aspect of plaintiff's work and criticism of another is consistent with plaintiff's varying record throughout his career at Fannie Mae. Plaintiff's behavior exceeded Fannie Mae's tolerance level when he was 50 years old, but no interpretation suggests that the company's criticisms were newly created as a pretext for age discrimination.
Plaintiff alternatively attempts to establish pretext based on his replacement by Elizabeth Snyder, a younger, allegedly less qualified individual. While replacement by a younger person is necessary for plaintiff's prima facie case, it does not, in and of itself, challenge Fannie Mae's legitimate reason for termination, and does not automatically imply discrimination. O'Connor v. Consolidated Coin Caterers Corp., 134 L. Ed. 2d 433, 116 S. Ct. 1307 (1996). While Snyder has less experience in investor relations, her record reflects extensive experience in the corporate world and in Fannie Mae, and her employment in this capacity serves to directly remedy the aspects of plaintiff's performance that Fannie Mae found unsatisfactory. Pl.'s Opp., Ex. 14. Demographic trends and the nature of the labor market make it likely that most people who leave a corporation, for any reason, will be replaced by someone younger for entirely legitimate reasons. Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1224 (7th Cir. 1980), cert denied, 450 U.S. 959, 67 L. Ed. 2d 383, 101 S. Ct. 1418 (1981); McCoy v. WGN Television, 758 F. Supp. 1231, 1237 (N.D.Ill. 1990). In replacing a high level executive, management will naturally explore other parts of the company, considering employees with related, lower-level experience who are, based on the corporate structure and hierarchy, younger than those who have served extensively in senior level positions. Most importantly, Snyder was not considered for the position until after Fannie Mae had decided to terminate plaintiff, and her selection thus could not have been part of a greater, discriminatory scheme. Raines Dep. at 24. Snyder's philosophy and style filled precisely the internal void that plaintiff's shortcomings had created, and her age was merely incidental to the substantive, qualitative concerns at issue.
The analysis that defeats plaintiff's age discrimination claim under the ADEA accordingly overcomes his DCHRA claims as well, since the legal standards governing both are the same. See supra note 2. Defendant's motion for summary judgment on both age discrimination claims is therefore granted.
B. The Retaliation Claim
Plaintiff offers two explanations of his retaliation claim. Though the parties confuse the claims and arguments, the Court considers all evidence and inferences in a light most favorable to the non-moving party for purposes of summary judgment, and thus accepts plaintiff's analysis of retaliation as the one in question. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., supra; White v. Fraternal Order of Police, 285 U.S. App. D.C. 273, 909 F.2d 512, 516 (D.C. Cir. 1990). Neither of plaintiff's interpretations, however, sufficiently proves retaliation, and no genuine question of material fact exists with regard to the claim.
Retaliation requires that (i) plaintiff is engaged in a protected activity; (ii) there is some adverse impact on the plaintiff; and (iii) the adverse impact is causally related to the exercise of the protected activity. Passer v. American Chem. Soc., 290 U.S. App. D.C. 156, 935 F.2d 322, 331 (D.C. Cir. 1991); Thorne v. Alexander, 782 F. Supp. 677, 680 (D.D.C. 1992); Saunders v. George Washington University, 768 F. Supp. 854, 868 (D.D.C. 1991).
The uncontested facts demonstrate that, based on the legal standards of retaliation, plaintiff's claims are not valid.
1. The First Scenario: March 1 Comments Induced Withdrawal of Separation Package
Plaintiff's first scenario suggests that the source of retaliation was the expression of his belief on March 1 that his termination was motivated by age discrimination, and that Fannie Mae retaliated by withdrawing the separation package that had originally been offered and refusing further negotiations. Pl.'s Br. at 41, Pl.'s Opp., Ex. 41. Initially, it seems unlikely that plaintiff's comments were the genuine cause of the accused retaliation. In his March 17 filing with the EEOC, Pl.'s Opp., Ex. 46, retaliation is alleged in response to plaintiff's refusal to sign a waiver of legal responsibility, and he did not mention the March 1 comments. While the complaint filed in this court does introduce the March 1 comments, it is unclear why the course of events were not fully explained in the EEOC charge, and the comments thus do not seem to be the actual source of retaliation.
Assuming the March 1 comments were in fact the cause of retaliation, such conduct does not constitute protected activity under the ADEA. The Act prohibits retaliation because the individual "has opposed any practice made unlawful by this section, or because such individual, member or applicant for membership has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this Act." 29 U.S.C. § 623(d). The Act was designed to prevent retaliation against active opposition to discriminatory practices, not against general discussion and informal comments on the matter. Such circumstances would allow a retaliation claim based on any isolated remark even remotely related to discrimination, placing an enormous burden on employers to avoid "retaliating" against an employee due to some vague comments regarding discrimination. Such an interpretation would also allow an employee to make unsubstantiated allegations of discrimination and then sue for "retaliation" if any perceivedly adverse employer action was taken following the allegation. Related cases reflect a tendency to exclude similar actions from the protection of§ 623(d). Courts have generally implied that in order to implicate the retaliation clause of the ADEA, some official action with respect to litigation or investigation must actually have been initiated. Glass v. IDS Fin. Servs., Inc., 778 F. Supp. 1029, 1060 (D. Minn. 1991). Cases question what action constitutes the opposition that § 623(d) requires, finding, for instance, that refusal to sign a waiver of legal responsibility does not constitute an act "opposing" discrimination as the Act intended. EEOC v. Sears, Roebuck & Co, 857 F. Supp. 1233, 1239 (N.D. Ill. 1994) "This is not actionable discrimination because Sears' conduct was not precipitated by the type of affirmative conduct implied by the phrase 'oppos[ing] an unlawful practice.'" See also Jackson v. Lyons Falls Pulp and Paper, 865 F. Supp. 87 (N.D.N.Y. 1994). Courts presume that the opposition necessary to prove retaliation involves active and direct challenge to the company's alleged discriminatory action that exceeds an indefinite, unofficial expression of suspected age bias.
Even if the Court assumes that plaintiff's comments on March 1, 1994, constituted protected activity under the ADEA, plaintiff has not shown any "adverse action" resulting therefrom. The withdrawal of separation benefits is not an "adverse action," and is thus not an actionable form of "retaliation." Fannie Mae's official policy does not include an assurance of severance pay upon departure from the company. Pl.'s Opp., Ex. 3. If severance pay is contractually required, it cannot be applied unequally, but if a separation package constitutes an additional benefit that was not specifically guaranteed, it may be negotiated, waived, or refused. EEOC v. Sears, 857 F. Supp. at 1240. Plaintiff contends that although Fannie Mae does not guarantee a separation package, it is the company's general practice to provide one, and the refusal to provide it constitutes an "adverse action" against him. Fannie Mae did, in fact, provide plaintiff with several different separation options. They were flexible in their efforts to satisfy plaintiff, offering additional money for attorney's fees and extending the deadline for accepting the package beyond the original cutoff date. When the final package was not accepted by the deadline provided, Fannie Mae withdrew the offer.
The accepted practice of severance pay applies only in the context of good faith negotiation on both sides, and plaintiff systematically rejected each of Fannie Mae's efforts to devise a fair and reasonable separation package. In such a case, severance pay is a privilege, not a right, and refusal to provide a separation package does not imply adverse action or retaliation as intended by the statute. Jackson, 865 F. Supp. at 95.
2. The Second Scenario: Filing the EEOC Claim Caused Plaintiff's Termination
Plaintiff's second retaliation charge asserts that his March 17, 1994, filing of an age discrimination claim with the EEOC provoked Fannie Mae to terminate him. Pl.'s Br. at 44; Pl.'s Opp., Ex. 41. Filing a complaint with the EEOC falls within the terms of § 623(d) of the ADEA. Such a claim represents an official measure that formally opposes alleged discrimination, and is the type of active step the statute was designed to protect. However, the standards for retaliation demand not only that protected activity occur and adverse action be taken, but that the adverse action be causally related to the exercise of protected activity. In order to prove Fannie Mae's retaliation in this respect, plaintiff's termination must have been directly caused by the filing of the EEOC claim. The chronology of the record, however, makes this impossible, as plaintiff was officially terminated before any formal or informal discussion of discrimination arose.
Plaintiff was terminated on February 14, 1994. Plaintiff argues that at that time, no date was specified for his departure and that he was permitted to continue his duties indefinitely, and that he thus had not yet been terminated. Pl.'s Opp. at 42. In the February 14 meeting, Senior Vice President for Administration, Doug Bibby, and Vice Chairman, Frank Raines, told plaintiff that they were going to "make a change in the leadership of investor relations and that his employment would end with Fannie Mae." Bibby Dep. at 192. Plaintiff was given a separation agreement to consider on February 14 and the notation in his calendar on that day shows that he understood the situation and was aware of the implication -- that he was "through" with Fannie Mae. Paquin Dep., Ex. 5. While plaintiff was not immediately compelled to cease work or leave his office, and the company was flexible regarding the terms of his departure, the Office of the Chairman had clearly resolved to end his employment at Fannie Mae. The decision-making process that took place in the last months of 1993 was completed by late December or early January, Raines Dep. at 21, and plaintiff was apprised of his termination on February 14. Raines Dep. at 11. In such cases, the alleged retaliatory act is the decision itself, and retaliation occurs when the decision to terminate is reached. Kuemmerlein v. Madison Metro. School Dist., 894 F.2d 257, 260 (7th Cir. 1990); McCoy v. WGN Television, 758 F. Supp. 1231, 1238 (N.D. Ill. 1990); Stephenson v. Martin Marietta, 1988 U.S. Dist. LEXIS 11170, No. CIV.A.87-2390, 1988 WL 75736, at *4 (D. Md. Sept. 21, 1988). Discrimination occurs at the time of the discriminatory act, when the actual decision to terminate is made, not when the consequences become most painful and plaintiff finally leaves his duties. McCoy, 758 F. Supp. at 1238.
For termination to act as retaliation, Fannie Mae must have decided to terminate plaintiff after he filed his claim with the EEOC. A response to protected activity cannot occur unless the protected activity has already been initiated. Glass v. IDS Fin. Servs. Inc., 778 F. Supp. 1029, 1060 (D. Minn. 1991). The EEOC claim was not filed until March 17. Pl.'s Opp., Ex. 46. Termination had occurred more than a month earlier. On February 14, plaintiff did not mention discrimination and had never expressed the opinion that Fannie Mae's criticism was based on his age. His termination was not in retaliation against protected activity -- no protected activity had yet occurred when the termination decision was made. Plaintiff was terminated because he was unable or unwilling to properly perform his duties as senior vice president, and upper management was legitimately dissatisfied with his work.
Neither of plaintiff's retaliation scenarios creates questions of genuine material fact on the basis of which summary judgment may be denied. While ambiguities inevitably exist as to the precise course of events, they are unimportant in this context. Based on the legal standards of retaliation controlling both the ADEA and the DCHRA, there is neither protected activity nor adverse action in the first claim, and the second charge lacks a causal relation between the protected activity and the adverse action. Regardless of how it might resolve the conflicting factual issues, no reasonable jury could find retaliation in either allegation, and summary judgment is therefore granted.
Accordingly, for the foregoing reasons, defendant's motion for summary judgment is granted on all Counts. An appropriate Order accompanies this Opinion.
Stanley S. Harris
United States District Judge
Date: JUL 31 1996
For the reasons stated in the accompanying Opinion, it hereby is
ORDERED, that defendant's motion for summary judgment is granted.
Stanley S. Harris
United States District Judge
Date: JUL 31 1996