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Spaeth v. Georgetown University

United States District Court, District Circuit

May 9, 2013




Plaintiff Nicholas Spaeth brings suit against Georgetown University, alleging that it discriminated based on age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA"), and the District of Columbia Human Rights Act, D.C. Code §§ 2-1401.01 et seq. ("DCHRA"), when it declined to interview and hire him after he applied for an entry-level tenure-track teaching position through the 2010 American Association of Law Schools ("AALS") Faculty Appointments Register. ( See Amended Complaint, Nov. 7, 2011 [ECF No. 10] ("Am. Compl.").)[1] Georgetown now moves for summary judgment. For the reasons set forth below, Georgetown's motion will be granted.



Nicholas Spaeth is an attorney who was born in 1950 and currently lives in Kansas City, Missouri. ( See id. §§ 1, 6.) Spaeth achieved significant academic honors, graduating magna cum laude from Stanford University in 1972; receiving a Rhodes Scholarship to attend Oxford University, from which he graduated summa cum laude in 1974; and graduating from Stanford Law School in 1977, after serving as Managing Editor of the Stanford Law Review. ( See id. §§ 38-40.) Following law school, he served as a law clerk to Judge Myron Bright on the Eighth Circuit Court of Appeals and to Justice Byron White on the United States Supreme Court. ( See id. §§ 41-42.) Spaeth subsequently had an illustrious career in the practice of law, serving as North Dakota State Attorney General for seven years, as general counsel to several Fortune 500 companies, and as a lawyer in private practice. ( See id. §§ 44-45, 48-59.) Spaeth also taught constitutional law as an adjunct professor of law at the University of Minnesota Law School from 1980 through 1983. ( See id. § 61.)

After retiring in 2009 from his most recent position as a senior executive officer at the Federal Home Loan Bank of Des Moines, Spaeth decided to pursue an academic career. ( See Declaration of Nicholas Spaeth ("Spaeth Decl."), Ex. 8 to Plaintiff's Opposition to Defendant's Summary Judgment Motion [ECF No. 95] ("Pl. Opp."), § 9; Defendant's Statement of Undisputed Facts [ECF No. 91-2] ("Def. SOF") § 3; Plaintiff's Response to Defendant's Statement of Undisputed Facts [ECF No. 95-3] ("Pl. Resp. SOF") § 3.) He made inquiries at several schools, hoping to obtain a permanent position. ( See Exs. 8-17 to Defendant's Praecipe ("Def. Praecipe") [ECF No. 103].) Ultimately, he obtained a non-tenure-track position as Visiting Professor of Law at the University of Missouri at Columbia for the 2010-2011 school year, teaching securities law, mergers and acquisitions, banking law, and accounting and business transactions. ( See Spaeth Decl. § 9.)


Because the visiting professor position at the University of Missouri was only a one-year appointment, Spaeth continued his search for a permanent position through the AALS entry-level hiring process in the fall of 2010. ( See Def. SOF § 5; Pl. Resp. SOF § 5.) AALS facilitates entry-level hiring for its 172 member schools, including Georgetown University Law Center ("Georgetown"). ( See Def. SOF § 6; Pl. Resp. SOF § 6.) AALS maintains an online system, the Faculty Appointments Register ("FAR"), through which candidates may submit information regarding their qualifications and interest in academic positions. ( See Def. SOF § 7; Pl. Resp. SOF § 7.) Candidates fill out a one-page electronic FAR form, which requests information about the candidate's education, work experience, teaching interests, and "Major Published Writings." ( See Def. SOF § 7; Pl. Resp. SOF § 7.) Candidates may also attach their resumes to the FAR form. ( See Pl. Resp. SOF § 13.) AALS enters all FAR forms into a centralized database that member law schools can search to identify candidates of interest. ( See Def. SOF § 7; Pl. Resp. SOF § 7.) In addition, each fall AALS sponsors a Faculty Recruitment Conference in Washington, D.C., where member law schools can conduct brief screening interviews of candidates in order to decide which applicants to invite to campus for more in-depth interviews. ( See Def. SOF § 8; Pl. Resp. SOF § 8.)

Spaeth submitted a FAR form in the fall of 2010. ( See Def. SOF § 13; Pl. Resp. SOF § 13.) Spaeth indicated, in response to prompts on the form, that the subjects he would "most like to teach" included financial institutions, insurance law, and business associations. (Spaeth FAR Form, Ex. A to Spaeth Decl.) Under the heading "other subjects may be interested in teaching, " he listed securities regulation, corporate finance, constitutional law, and Native American law. ( Id. ) Finally, he listed criminal law and international business transactions as "other subjects would be willing to teach, if asked." ( Id. ) Spaeth did not list tax as an area in which he was interested or willing to teach. Spaeth characterized the omission of tax from his FAR form as a computer error, explaining "[t]here was an error in posting entries for the third teaching category (Other subjects would be willing to teach, if asked'), since I tried to list tax and one other subject, but the online registration process only listed the second and fourth items that I posted." (Spaeth Decl. § 12.) The only publication that Spaeth listed was a "Handbook of American Indian Law" published in 1993. (Spaeth FAR Form.) Spaeth noted on his FAR form that his "[f]ull resume [was] available online." ( Id. ) His resume indicated, among other things, that as Visiting Professor of Law at the University of Missouri, he was "[t]eaching in the areas of financial services regulation, securities and taxation." (Spaeth Resume, Ex. A to Spaeth Decl., at 1.) His resume did not include a publications section but under the heading "Other Background, " it stated "Editor, American Indian Law Deskbook ... and author of numerous other publications." ( Id. at 4.)

In September and October of 2010, Spaeth wrote to several law schools directly to indicate his interest in being considered for a position, including the University of Kansas, Arizona State University, the University of Oregon, the University of Minnesota, the University of Colorado, the University of Wyoming, and the University of Missouri. ( See Deposition of Nicholas Spaeth ("Spaeth Dep.") at 47-48, Ex. 2 to Declaration of Douglas Crosno [ECF No. 91-4] ("Crosno Decl."); Exs. 1, 2, 4 & 5 to Def. Praecipe.) He did not write directly to Georgetown or otherwise have any other contact with the school, except to submit his FAR form to AALS for review by Georgetown and 171 other schools. ( See Def. SOF § 24; Pl. Resp. SOF § 24.)

Spaeth was only invited to preliminary interviews by two schools in 2010 - the University of Missouri and the University of Nebraska - and received no job offers. ( See Def. SOF § 66; Pl. Resp. SOF § 66.) His contract with Missouri was not renewed after the 2010-11 school year, and although he has pursued various opportunities in the public sector and in private practice, he has not been employed since that time. ( See Def. SOF § 67; Pl. Resp. SOF § 67.)


During the 2010-2011 hiring cycle, Georgetown formed separate committees for entry-level hiring and lateral hiring, as it had done since 2008. ( See Def. SOF § 28, Pl. Resp. SOF § 28; Ex. 4 to Cornelia Pillard Deposition [ECF No. 95-6] ("Pillard Dep.") at 4.) The entry-level hiring committee was chaired by Professor Cornelia Pillard and included four other professors, including Rebecca Tushnet and Joshua Teitelbaum. ( See Aug. 21, 2010 Pillard email, Ex. 21 to Pillard Dep.) When the first distribution of FAR forms became available in late August 2010, Pillard divided them alphabetically to give each committee member 130 applications to review in an "initial full sweep, " indicating that she "want[ed] at least one of us to have looked at each applicant's FAR one-pager." ( Id. ) Pillard assigned herself the last 142 applications, which included Spaeth's. ( Id. ) The committee later reviewed a second distribution of 111 FAR forms, also divided roughly evenly amongst the committee members for an initial review. ( See Sept. 12, 2010 Pillard email, Ex. 22 to Pillard Dep.) Certain applications were reviewed by multiple committee members in an effort to identify candidates in particular fields (mainly tax) and to winnow down the pool of first-round candidates. ( See Def. SOF §§ 42, 43, 44; Plaintiff's Concise Statement of Genuine Issues of Disputed Material Facts [ECF No. 95-4] ("Pl. SOF") § 20.)

Out of approximately 800 FAR forms reviewed by the committee, twenty-five were selected for initial screening interviews conducted at the AALS Faculty Recruitment Conference in late October 2010, or, for local candidates, off-site around the same time period. ( See Def. SOF § 45.) Approximately ten candidates were invited for "call-back" interviews on campus and seven accepted the invitation. ( See Transcript of April 8, 2013 Motions Hearing ("Tr.") at 10.) Ultimately, Georgetown offered entry-level tenure-track positions to four candidates, three of whom accepted. ( See id. )

Georgetown's three hires during the 2010-11 cycle were John ("Jake") Brooks, Itai Grinberg, and Eloise Pasachoff. ( See Def. SOF § 52; Pl. Resp. SOF § 52.) All three were thirty-five years old at the time they were hired. ( See Def. SOF § 55; Pl. Resp. SOF § 55.) Brooks and Pasachoff both submitted FAR forms, and also wrote to Pillard directly expressing their interest in Georgetown and providing detailed research agendas and copies of publications prior to being selected for an interview. ( See Def. SOF § 59; Pl. Resp. SOF § 59; Aug. 10, 2010 Letter from Brooks to Pillard, Ex. 3 to Pillard Decl.; Aug. 23, 2010 Letter from Pasachoff to Pillard, Ex. 5 to Pillard Decl.) Grinberg did not submit a FAR form, but instead, he wrote directly to Pillard after another Georgetown professor facilitated the connection. ( See Oct. 6, 2010 email from Grinberg to Pillard, Ex. 4 to Pillard Decl.) Grinberg provided copies of his publications and a research agenda. ( See id. ) Unsolicited recommendation letters or emails were sent on behalf of each of the three candidates, primarily from law school professors. ( See Exs. 6, 7, 8 to Pillard Decl.) Some of these recommendations were sent prior to the candidates being selected for interviews, while others were sent after they were selected but before the interviews took place. All three hires had impressive credentials. Grinberg graduated from Amherst College magna cum laude and from Yale Law School. He spent several years as a tax associate at the law firm of Skadden Arps, one year as counsel to the President's Advisory Panel on Federal Tax Reform, and three years as an Attorney-Advisor in the Office of Tax Policy at the Treasury Department. At the time he was hired, Grinberg had published four scholarly articles, had a "job talk" paper, and had a detailed research agenda, all related to tax. ( See generally Exs. 4 & 7 to Pillard Decl.)

Brooks graduated from Harvard College cum laude and Harvard Law School magna cum laude, where he earned a prize for the best student paper on taxation and worked as a research assistant to a top tax scholar. After law school, Brooks clerked for Judge Norman H. Stahl of the First Circuit Court of Appeals before working at the law firm of Ropes & Gray as a tax associate for two years. Brooks then served as a Climenko Fellow and Lecturer on Law at Harvard Law School for two years. At the time he was hired, Brooks had one scholarly article accepted for publication by the Columbia Journal of Tax Law and a work in progress, both related to tax. ( See generally Exs. 3 & 6 to Pillard Decl.)

Pasachoff graduated from Harvard College summa cum laude, winning a prize in her junior and senior years for the highest grades in the humanities. She received a master's degree in English from Yale University; a JD from Harvard Law School, graduating magna cum laude ; and an MPA from Harvard's Kennedy School of Government. She clerked for Judge Jed S. Rakoff of the Southern District of New York, Judge Robert A. Katzmann of the Second Circuit Court of Appeals, and Justice Sonia Sotomayor of the Supreme Court. Like Brooks, she served as a Climenko Fellow and Lecturer on Law at Harvard Law School for two years. At the time she was hired, she had published two scholarly articles and a policy paper for the Brookings Institution, as well as having a "job talk" paper that had been accepted for publication. ( See generally Exs. 5 & 8 to Pillard Decl.)




"Summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." McKinley v. Bd. of Governors of Fed. Reserve Sys., 647 F.3d 331, 335 (D.C. Cir. 2011); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A dispute is "genuine" and precludes summary judgment only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248.

When considering a motion for summary judgment, "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). Still, when the moving party has carried its initial burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). It may not rely on "mere allegations or denials, " but rather "must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248 (internal quotation marks and citation omitted). "[W]holly conclusory statements for which no supporting evidence is offered" will not suffice. Carter v. Greenspan, 304 F.Supp.2d 13, 21 (D.D.C. 2004) (citing Greene v. Dalton, 164 F.3d 671, 674-75 (D.C. Cir. 1999)). A moving party is entitled to summary judgment if the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).


The ADEA makes it "unlawful for an employer... to fail or refuse to hire... or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's age, " 29 U.S.C. § 623(a)(1), and includes persons forty years of age or older in the protected class. Id. at § 631(a). The essential elements of a discrimination case under the ADEA are that "(i) the plaintiff [must have] suffered an adverse employment action (ii) because of the plaintiff's... age." Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008) (applying Brady v. Office of the Sergeant at Arms, 520 F.3d 490 (D.C. Cir. 2008), to ADEA claims). To succeed on an ADEA claim, a plaintiff must "prove by a preponderance of the evidence... that age was the but-for' cause of the challenged employment action." Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009). "The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision." Id.

"In a refusal-to-hire or refusal-to-promote discrimination case, the McDonnell Douglas prima facie factors are that (i) the employee belongs to a... protected class, (ii) the employee applied and was qualified for a job for which the employer was seeking applicants; (iii) despite the employee's qualifications, the employee was rejected; and (iv) after the rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." Brady, 520 F.3d at 493 n.1 (internal quotation marks and citation omitted).

Once an employee has shown that he has suffered an adverse employment action, the burden shifts to the employer to come forward with a "legitimate, non-discriminatory reason" for the challenged employment action. Brady, 520 F.3d at 493. If the employer then moves for summary judgment, the district court "must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race, color, religion, sex, or national origin?" Id. at 494. The Court considers "(1) the plaintiff's prima facie case; (2) any evidence the plaintiff presents to attack the employer's proffered explanation for its actions; and (3) any further evidence of discrimination that may be available to the plaintiff... or any contrary evidence that may be available to the employer.'" Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011) (quoting Aka, 156 F.3d at 1289). If the employee has not met his burden, the employer's motion for summary judgment is properly granted. Brady, 520 F.3d at 497. However, "when the plaintiff offers direct evidence of discriminatory intent, that evidence will generally entitle a plaintiff to a jury trial.'" Ayissi-Etoh v. Fannie Mae, No. 11-7127, 2013 WL 1352239, at *3 (D.C. Cir. Apr. 5, 2013) (quoting Vatel v. Alliance of Auto. Mfrs., 627 F.3d 1245, 1247 (D.C. Cir. 2011)); see also George v. Leavitt, 407 F.3d 405, 413 (D.C. Cir. 2005) ("a plaintiff can show discrimination either directly by persuading the [factfinder] that a discriminatory reason more likely motivated the employer or indirectly by showing that the ...

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