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Moeller v. Lafleur

United States District Court, District of Columbia

March 31, 2017

JAMES W. MOELLER, Plaintiff,
CHERYL A. LAFLEUR, Acting Chairman, Federal Energy Regulatory Commission, [1] Defendant.



         Plaintiff 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 experience.


         I. Factual Background

         Plaintiff 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.[2] And from 2013 onward, plaintiff has been unemployed. Def.'s Cross-SOF ¶¶ 70-71; Pl.'s Cross-SOF ¶¶ 70-71.

         Plaintiff 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.

         A. The 2010 non-selection

         In 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].

         FERC 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.

         B. The 2013 non-selection

         In 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 position description:

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 required.
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.

         FERC001528-31 [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].

         Plaintiff 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.

         C. The 2014 non-selection

         In the 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.

         Of the 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.

         Plaintiff 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.

         II. Procedural History

         On May 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.

         On 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 Cross-Reply”).


         Summary 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 ...

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