Id. (emphasis added). Under this standard, the Court held that
the alleged attempt to interfere with pension benefits, while
perhaps actionable under the Employee Retirement Income Security
Act of 1974 ("ERISA"), 29 U.S.C. § 1140, did not present a claim
under the ADEA. "The decision [was] not the result of an
inaccurate and denigrating generalization about age, but . . .
rather . . . an accurate judgment about the employee — that he
was indeed `close to vesting.'" Id. at 612, 113 S.Ct. 1701.
Plaintiff's claim fails for the same reason. Plaintiff alleges
that he was demoted to deny him the level of benefits he would
otherwise be entitled to receive if he reached a certain age as a
Senior Manager. As in Hazen Paper, plaintiff here does not
allege that he was demoted and transferred because of inaccurate
stereotypes and prejudices regarding older workers but rather
because of an accurate judgment about his right to a certain
level of retirement pay. Thus, plaintiff has not alleged a claim
which can be brought under the ADEA.
In oral argument, plaintiff presented a third construction of
his age discrimination claim. He stated that Kuczma took the
disciplinary actions against plaintiff because plaintiff's
refusal to promote certain employees without first posting the
positions demonstrated that he was an employee of the "old
school" who "followed the book." Plaintiff asserts that this is
equivalent to an age discrimination claim. However, an allegation
that plaintiff was fired because he was from the "old school" is
simply not the same as claiming that he was fired because he was
old. Indeed, this construction is even farther removed from a
valid ADEA claim than plaintiff's claim of benefits interference
because there is not even a facial correlation between an
employee's desire to "follow the book" and the employee's age.
Because plaintiff does not allege that he was discharged because
of irrational prejudice against older workers, his claim is not
cognizable under the ADEA.
Moreover, even if plaintiff were to assert that irrational
prejudice were the motivation, the evidence would not support
such an assertion. A plaintiff suing under the ADEA may establish
his claim of discrimination by either direct evidence of
discriminatory intent or circumstantially by using the familiar
burden-shifting scheme announced in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See
Hall v. Giant Food, Inc., 175 F.3d 1074, 1077 (D.C.Cir. 1999).
However, the record does not support either a direct or
As direct evidence of discrimination, plaintiff points to
certain comments made by Kuczma and O'Donovan. First, he alleges
that both Kuczma and O'Donovan told him around the time of the
second reminder letter that plaintiff should think about
retiring. Beeck Dep. I at 115-16. Derogatory remarks may be
direct evidence of age discrimination. See O'Connor v.
Consolidated Coin Caterers Corp., 56 F.3d 542, 548-49 (4th Cir.
1995), rev'd on other grounds, 517 U.S. 308, 116 S.Ct. 1307,
134 L.Ed.2d 433 (1996). However, the mere suggestion that
plaintiff consider retiring cannot be considered derogatory.
Plaintiff also alleges that when he would have after-meeting
dinners with his co-workers, the group would choose to go out
afterwards but plaintiff would generally retire. At such times,
plaintiff alleges, Kuczma, O'Donovan and others would frequently
make comments similar to "he's the old man, he needs his rest, .
. . he can't keep up with us young guys." Beeck Dep. I at 111-12.
Kuczma would also ask plaintiff at meetings if plaintiff could
"keep up." Id. at 114.
These comments also provide no direct evidence to support
plaintiff's claim. Direct evidence does not include stray remarks
in the workplace, even if made by decision-makers, where the
remarks are unrelated to the decisional process itself.
See Siragy v. Georgetown University, No. CIV.A. 97-2557, 1999
WL 767831, *6 (D.D.C. Aug.20, 1999) (citing Garrett v. Lujan,
799 F. Supp. 198, 200, 202 (D.D.C. 1992); Ayala-Gerena v. Bristol
Myers-Squibb Co., 95 F.3d 86, 95 (1st Cir. 1996)); see also
Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 109 S.Ct. 1775,
104 L.Ed.2d 268 (1989) (O'Connor, J.) (discriminatory "statements
by decision makers unrelated to the decisional process" are not
direct evidence of discrimination). Instead, there must be a
nexus between the remark and the adverse employment decision.
See Kalekiristos v. CTF Hotel Management Corp., 958 F. Supp. 641,
665 (D.D.C. 1997). Because the alleged remarks at social
dinners and random meetings have no evident connection to either
the issuance of reminder letters or the demotion and transfer
actions, there is no direct evidence that would support a valid
claim of age discrimination.
Plaintiff has also failed to make out a circumstantial case
under the McDonnell Douglas framework. Under this test,
plaintiff must first establish a prima facie case by
demonstrating that: (1) he belongs in the statutorily protected
group; (2) he was qualified for the position; (3) he was demoted;
and (4) he was disadvantaged in favor of a younger person. See
Hall, 175 F.3d at 1077. Plaintiff has failed to satisfy the
To raise an inference of discrimination by showing that a
younger person was favored, a plaintiff must point to a worker
with a "significant" or "substantial" difference in age. See
O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 313,
116 S.Ct. 1307, 134 L.Ed.2d 433 (1996); Ware v. Howard
University, 816 F. Supp. 737, 750 (D.D.C. 1993). Several courts
of this Circuit have found that a difference of less than five
years between the plaintiff and the favored employee is not
sufficiently substantial to raise an inference of age
discrimination. See Siragy v. Georgetown University, No. CIV.A.
97-2557, 1999 WL 767831, *7 (D.D.C. Aug.20, 1999) (finding that a
difference of only four years weighs against inference of age
discrimination); Clifton v. Federal National Mortgage Assoc.,
36 F. Supp.2d 20, 26 (D.D.C. 1999) (holding that three-year
difference did not support prima facie case of age
discrimination). Here, plaintiff alleges that after his demotion,
he was replaced by Edson, who is less than four years younger
than plaintiff.*fn1 Accordingly, even if plaintiff had alleged
that his demotion was the result of irrational age
discrimination, plaintiff's evidence is not in any event
sufficient to support that claim. Defendant's motion for summary
judgment is therefore granted.
The Court first observes that plaintiff has failed to allege a
claim of retaliation in the complaint. The only claims alleged
were claims of age discrimination and intentional infliction of
emotional distress. Nor has plaintiff made any motion to amend
the complaint to add such a claim. There is therefore no
retaliation claim before the Court, and this fact alone is
sufficient grounds to disallow plaintiff from proceeding on such
Nevertheless, the Court also observes that plaintiff's claim,
as argued in his memorandum of law, fails on the merits. The ADEA
prohibits an employer from retaliating against an employee
"because such individual, member or applicant
for membership has opposed any practice made unlawful by this
section or because such individual [or] participated in any
manner in an investigation, proceeding, or litigation under this
chapter." 29 U.S.C. § 623(d). This Circuit construes "opposition"
broadly as including virtually any open allegation of
discriminatory behavior. Thus, an informal letter to an employer
alleging a discriminatory act is sufficient to constitute
opposition. See Paquin v. Federal Nat. Mortg. Ass'n,
119 F.3d 23, 32 (D.C.Cir. 1997) (holding employee's letter claiming that
discharge was result of age discrimination was protected
activity); see also Sumner v. United States Postal Serv.,
899 F.2d 203, 209 (2d Cir. 1990) (explaining that acceptable forms of
protected activity under Title VII's analogous opposition clause
include formal charges of discrimination "as well as informal
protests of discriminatory employment practices, including making
complaints to management, writing critical letters to customers,
protesting against discrimination by industry or society in
general, and expressing support of co-workers who have filed
formal charges"). Alternatively, activities in preparation or
furtherance of litigation have been held to constitute
opposition. See, e.g., Kempcke v. Monsanto Co., 132 F.3d 442,
445 (8th Cir. 1998) (holding that giving documents to attorney to
support age discrimination claim was protected activity). Here,
however, plaintiff does not point to either an open allegation of
discriminatory behavior or a participation in litigation.
Instead, he asserts that his refusal to retire when he was
demoted constituted the requisite opposition to an unlawful
practice. Beeck asserts that his supervisors retaliated against
him following his refusal to resign by transferring him to
distant locations and by refusing his own request for transfer
back to Dulles. However, this Court can find no case law which
suggests that protected "opposition" extends beyond open
allegations of discrimination to the sort of stoic, silent
endurance plaintiff alleges here. Accordingly, even if
plaintiff's retaliation claim had been properly raised in the
complaint, it would fail on the merits.
For these reasons, this Court will grant defendant's motion for
summary judgement and dismiss the action in its entirety. An
appropriate order will accompany this opinion.