United States District Court, District of Columbia
JAMES W. MOELLER, Plaintiff,
CHERYL A. LAFLEUR, Acting Chairman, Federal Energy Regulatory Commission,  Defendant.
BERMAN JACKSON DISTRICT JUDGE
James W. Moeller is an energy lawyer in his late fifties who
has applied for several attorney positions at the Federal
Energy Regulatory Commission (“FERC”). He has
been neither hired nor interviewed, and he brought this
lawsuit against the Acting Chairman of FERC, Cheryl A.
LaFleur, alleging a violation of the Age Discrimination in
Employment Act, 29 U.S.C. § 621, et seq.
(“ADEA”). Compl. [Dkt. # 1]. The complaint
alleges a single act of age discrimination arising out of the
agency's decision to not interview plaintiff for an
attorney position in 2014, and it also alleges that the
agency's decision to not interview him was part of a
pattern or practice of age discrimination. Id.
¶¶ 21, 39. The parties have both moved for summary
judgment. While plaintiff attributes his non-selection to his
age, defendant maintains that the decision not to interview
him was made because the agency was looking for specific type
of experience - prior litigation in federal court - and
plaintiff lacked that experience. Because the plaintiff has
not identified evidence from which a reasonable juror could
conclude that the agency's explanation is a pretext for
discrimination, the Court will grant the agency's motion
and deny plaintiff's motion. This opinion is not meant to
suggest that plaintiff is not qualified for an attorney
position in the energy field - it is simply that he has
failed to point to evidence from which a jury could find that
FERC officials lied when they said they did not interview him
for an enforcement position because he lacked litigation
was born in 1958, and he is a graduate of Harvard Law School.
Compl. ¶¶ 4, 32; Def.'s Statement of Material
Facts Not in Genuine Dispute [Dkt. # 24] (“Def.'s
Cross-SOF”) ¶ 57; Pl.'s Resp. to Def.'s
Cross-SOF [Dkt. # 29] (“Pl.'s Cross-SOF”)
¶ 57. From 1984 through 2013, plaintiff's legal
practice centered around energy regulatory law. Def.'s
Cross-SOF ¶¶ 59-70; Pl.'s Cross-SOF ¶
59-70. And from 2013 onward, plaintiff has
been unemployed. Def.'s Cross-SOF ¶¶ 70-71;
Pl.'s Cross-SOF ¶¶ 70-71.
has applied for numerous attorney positions at FERC: as
relevant to this case, he submitted applications for attorney
positions at FERC in 2010, 2013, and 2014. See
Compl. ¶¶ 22- 26. He alleges that the 2010 and 2013
applications show the beginning of a pattern or practice of
age discrimination, see Id. ¶ 41, and that the
non-selection in 2014 was a result of age discrimination.
Id. ¶ 39.
The 2010 non-selection
2010, plaintiff applied to a FERC job announcement which
sought mid-level and senior attorneys to work in its Office
of General Counsel. Def.'s Cross-SOF ¶ 3; Pl.'s
Cross-SOF ¶ 3. The agency noted that it was particularly
interested in “attorneys with electric energy
experience particularly on reliability matters.”
Statement of Undisputed Material Facts in Supp. of Pl.'s
Mot. [Dkt. # 17] (“Pl.'s SOF”) ¶ 54;
Def.'s Resp. to Pl.'s SOF [Dkt. # 24-6]
(“Def.'s SOF”) ¶ 54. The position
description noted that FERC sought attorneys “with a
bachelor's degree or higher in electrical engineering,
physical sciences, or mathematics, as well as attorneys
possessing experience with complex bulk power systems
engineering issues in the electric industry.”
FERC001538 [Dkt. # 24-2].
received forty-seven applications in response to the 2010 job
posting. Pl.'s SOF ¶ 56; Def.'s SOF ¶ 56.
Approximately twelve individuals were interviewed, and eight
applicants ultimately accepted positions. Id.; Decl.
of Christopher MacFarlane [Dkt. # 24-2] (“MacFarlane
Decl.”) ¶ 13; Ex. 12 to Decl. of Christopher
MacFarlane [Dkt. # 28-9]. The candidates who were ultimately
hired were of diverse ages - 35, 36, 38, 40, 40, 47, 51, and
53. MacFarlane Decl. ¶ 13; Ex. 12 to MacFarlane Decl.
Plaintiff was offered neither an interview nor a position.
Pl.'s SOF ¶ 55; Def.'s SOF ¶ 55.
The 2013 non-selection
2012, FERC issued a job announcement seeking
Attorney-Advisors in its Office of Enforcement. Pl.'s SOF
¶ 23; Def.'s SOF ¶ 23. According to the
FERC's Division of Investigations, within the Office of
Enforcement, is seeking mid- and senior-level attorneys with
litigation or energy law experience.
Candidates must have substantial litigation experience
preferably in prosecutorial, enforcement, white collar crime,
or complex business litigation. Hands on trial experience is
Alternatively, candidates must have extensive experience in
energy law, with a strong knowledge of FERC laws and
regulations. Attorneys accepted for this position will take
on significant responsibility, including running their own
investigations and enforcement actions.
[Dkt. # 24-2] (“2012 Posting”). Under the heading
“Qualifications Required, ” the agency specified
that a successful candidate “must possess experience in
investigative work, litigation, or enforcement, or
alternatively, in FERC practice, law and regulations.”
Id. FERC received over 1200 applications for that
posting, and it interviewed sixty-six candidates. Pl.'s
SOF ¶ 27; Def's SOF ¶ 27. Seven applicants were
offered positions, Pl.'s SOF ¶ 27; Def's SOF
¶ 27; the ages of the successful candidates ranged from
31 to 61, and four of the seven were over 40. Ex. 4 to
MacFarlane Decl. [Dkt. # 28-1]. The six applicants who were
ultimately selected “had no energy regulatory
experience but had substantial court litigation
experience.” Decl. of Christopher MacFarlane [Dkt. #
24-2] ¶ 9; see also Exs. 5-10 to MacFarlane
Decl. [Dkt. # 28-2].
applied for the 2012 posting on November 21, 2013. Pl.'s
SOF ¶ 26; Def's SOF ¶ 26. Plaintiff was neither
interviewed nor offered a position. Pl.'s SOF ¶ 26;
Def's SOF ¶ 26.
The 2014 non-selection
Spring of 2014, FERC issued a job announcement for an
Attorney-Advisor position in the Office of Enforcement.
Pl.'s SOF ¶ 1; Def's SOF ¶ 1. The
announcement includes the same description of the duties and
qualifications as the 2012 Posting. See
FERC001542-45 [Dkt. #24-2] (“2014 Posting”). FERC
received 128 job applications and interviewed five of those
individuals. Pl.'s SOF ¶ 6; Def's SOF ¶ 6.
five candidates who received interviews, the parties
described three in their statements of fact:
• Candidate 1 graduated from Wake Forest University Law
School in 2009. The candidate had approximately four years of
experience as an associate at a law firm. The candidate
first-chaired a bench trial in D.C. Superior Court, and
participated in two other jury trials. The candidate
first-chaired nine depositions and second-chaired 30 others,
and handled over ten expert witnesses in various matters.
FERC000002 [Dkt. # 18] at 47. Candidate 1 declined FERC's
invitation to interview. Pl.'s SOF ¶ 14; Def.'s
SOF ¶ 14.
• Candidate 2 graduated from Yale Law School in 2007.
The candidate served as a litigation associate at various law
firms for approximately seven years. The candidate's
experience included leading an internal investigation on
behalf of a Fortune 500 company; defending a commodity
trainer in a criminal case; and conducting extensive fact
discovery in various litigations. FERC000055 [Dkt. # 18] at
53. The interviewers for Candidate 2 noted that he
“ha[d] no particular interest in energy, ” and
also noted that “[h]e has never argued a motion or
worked on a trial team although he did cross a witness in a
pro bono hearing before an [Administrative Law Judge].”
Pl.'s SOF ¶ 19; Def.'s SOF ¶ 19.
• Candidate 3 graduated from Texas A&M Law School in
2002. The candidate worked as a litigation associate at a law
firm for approximately nine years, took and defended dozens
of depositions of fact and expert witnesses, and acted as
first chair for national software company in fraud
litigation. FERC000068 [Dkt. # 18] at 63. The FERC employees
who interviewed Candidate 3 concluded that the candidate
“lacked energy experience.” Pl.'s SOF ¶
16; Def.'s SOF ¶ 16.
was not offered an interview. Pl.'s SOF ¶ 5;
Def.'s SOF ¶ 5. In the end, no job offers were made
to candidates who applied for the 2014 posting - the agency
later explained that no applicant demonstrated the
“optimal knowledge, skills, abilities and
qualifications” that it was looking for. Pl.'s SOF
¶ 8; Def.'s SOF ¶ 8.
13, 2015, plaintiff filed a single-count complaint alleging
that his non-selection for the 2014 position constituted age
discrimination in violation of section 633a of the ADEA.
Compl. The complaint also states that “the adverse
employment decision of September 22, 2014 is consistent with
prior employment decisions dating back to approximately
2010.” Id. ¶ 21; see also Id.
¶ 41 (“Since approximately 2010, Plaintiff has
suffered several adverse employment decisions due to
intentional discrimination on the part of the Commission due
to his age.”). In the parties' joint report
submitted in accordance with Local Civil Rule 16.3, plaintiff
argued that he was entitled to discovery as to FERC's
decisions not to select him for the prior vacancies, so that
he could “use the product of that discovery as evidence
to support his claim in this case, i.e., to show a pattern of
age discrimination, ” even though he never separately
administratively exhausted any claims arising out of those
decisions. Parties' Report to the Court & Discovery
Plan [Dkt. # 7] (“16.3 Report”) at 2. Defendant
opposed the request, arguing that each non-selection was a
“discrete act and unrelated to the selection at issue
in this case.” Id. The Court heard argument on
the matter at the initial scheduling conference held on
December 9, 2015. See Min. Entry (Dec. 9, 2015). In
its scheduling order, the Court ruled that “[g]iven the
limited number of positions involved and the fact that it is
only a five-year time period at issue, ” the agency was
required to “produce the applications of the other
candidates who were interviewed to fill the four positions
for which plaintiff applied, even though the positions were
not all within the same component of the agency and the
decisions were not all made by the same agency
officials.” Scheduling Order [Dkt. # 10] at 1-2.
August 26, 2016, plaintiff moved for summary judgment.
Pl.'s Mot. for Summ. J. [Dkt. # 17] (“Pl.'s
Mot.”); Mem. of P. & A. in Supp. of Pl.'s Mot.
[Dkt. # 17] (“Pl.'s Mem.”). On October 19,
2016, defendant opposed the motion and filed a cross-motion
for summary judgment. Def.'s Mot. for Summ. J. [Dkt. #
24] (“Def.'s Cross-Mot.”); Mem. of P. &
A. in Supp. of Def.'s Mot. & in Opp. to Pl.'s
Mot. [Dkt. # 24] (“Def.'s Cross-Mem.”).
Plaintiff replied in support of his motion and opposed the
cross-motion on November 14, 2016, Pl.'s Opp. to
Def.'s Cross-Mot. [Dkt. # 29] (“Pl.'s
Cross-Opp.”), and defendant filed a cross-reply in
support of its motion on December 1, 2016. Reply Mem. in
Supp. of Def.'s Cross-Mot. [Dkt. # 33] (“Def.'s
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The party seeking summary judgment
“bears the initial responsibility of informing the
district court of the basis for its motion, and identifying
those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation
marks omitted). To defeat ...