The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on defendant's motion for summary judgment with respect to Count IV of plaintiff Kevin Kelly's first amended complaint ("Mot."). The Court previously dismissed without prejudice all of the other counts in Mr. Kelly's first amended complaint. See Kelly v. Barreto, Civil Action No. 05-900, Order at 1 (D.D.C. Mar. 31, 2006). Thus, only Count IV remains before the Court. Upon consideration of defendant's motion, Mr. Kelly's opposition thereto ("Opp."), and defendant's reply ("Reply"), the Court will grant in part and deny in part defendant's motion for summary judgment.
Mr. Kelly was employed as a Business Opportunity Specialist ("BOS") by the United States Small Business Administration ("SBA") from September 1998 until July 2004, when he was terminated. The duties of a BOS include "analyz[ing] applications [from firms] to determine whether they [are] eligible for the small disadvantaged business program." Opp. at 2. In Count IV, Mr. Kelly claims that he was terminated because he engaged in prior protected activity and because of his race (African American) in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq. ("Title VII"). He also claims that he was terminated because of his age (he was 43 years old when he was terminated) in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621, et seq. ("ADEA").
I. SUMMARY JUDGMENT STANDARD
Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits [or declarations] show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."
FED. R. CIV. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). "A fact is 'material' if a dispute over it might affect the outcome of a suit under the governing law; factual disputes that are 'irrelevant or unnecessary' do not affect the summary judgment determination." Holcomb v. Powell, 433 F.3d at 895 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. When a motion for summary judgment is under consideration, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255. The Court must "eschew making credibility determinations or weighing the evidence" on a motion for summary judgment. Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).
The nonmoving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. FED. R. CIV. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). He is required to provide evidence that would permit a reasonable jury to find in his favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the non-movant's evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50; see Scott v. Harris, 127 S.Ct. 1769, 1776 (2007) ("[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is 'no genuine issue for trial.'") (quoting Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). To defeat a motion for summary judgment, a plaintiff must have more than "a scintilla of evidence to support his claims." Freedman v. MCI Telecommunications Corp., 255 F.3d 840, 845 (D.C. Cir. 2001).
The Court finds that there are genuine issues of material fact in dispute with respect to Mr. Kelly's claims of unlawful retaliation and discrimination on the basis of race under Title VII. The SBA therefore is not entitled to judgment as a matter of law on those claims; they must be tried or settled.
III. AGE DISCRIMINATION CLAIM
The ADEA provides, in pertinent part, that "[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . in executive agencies . . . shall be made free from any discrimination based on age." 29 U.S.C. § 633a(a). Because he offers no direct evidence of age discrimination, Mr. Kelly's age discrimination claim must be analyzed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Barnette v. Chertoff, 453 F.3d 513, 515 (D.C. Cir. 2006). Under that framework, a plaintiff must first establish a prima facie case of discrimination. Doing so creates a rebuttable presumption of discrimination and "triggers the employer's burden to produce admissible evidence that, if believed, would establish that the employer's action was motivated by a legitimate, nondiscriminatory reason." Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1151 (D.C. Cir. 2004). If the employer meets this burden, then all presumptions drop away and the Court must decide "whether intentional discrimination may be inferred from all the evidence," including any evidence that the employer's asserted reason is pretextual. Id.
As the D.C. Circuit has explained, however, "the district court need not -- and should not -- decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas" at the summary judgment stage if (1) the plaintiff has suffered an adverse employment action, and (2) the defendant has asserted a non-discriminatory reason for its behavior. Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). Rather, in those circumstances, the district court must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the ...