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Arnold v. Esper

United States District Court, District of Columbia

December 21, 2018

MARK T. ESPER, Secretary of the Army, Defendant.



         Plaintiff Marvin Arnold alleges that the United States Army violated the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq., when it refused to promote him. Before the Court are the parties' cross-motions for summary judgment, Dkts. 41, 43. For the reasons that follow, the Court will deny Arnold's Motion for Summary Judgment and grant the Army's Cross-Motion for Summary Judgment.

         I. BACKGROUND

         In 2012, the Army issued a job announcement seeking qualified applicants to fill a vacancy for a supervisory social worker position. See Def.'s Cross-Mot. for Summ. J. & Opp'n Ex. 2, at 2, Dkt. 43-2. Applicants had to have at least one year of experience “equivalent to the GS-12 grade level in the Federal Service, ” id. Ex. 5, at 10, Dkt. 43-5, as well as “four years of post-graduate clinical or counseling experience and two years [of experience] in the field of domestic violence and/or child abuse and neglect, ” id. Ex. 5, at 11. Applicants were also required to have a Master of Social Work degree, to “qualify for and maintain credentials as an independently licensed clinical social worker, ” and to have “[a] current, valid, and unrestricted . . . state license to practice clinical social work.” Id.

         Arnold applied for the position, but the Army ultimately selected a candidate named Don Kreager, who was twenty years younger. Id. Ex. 2, at 3. Both Arnold and Kreager had more than twenty years of experience, including supervisory experience, as well as the requisite Master of Social Work degree. Arnold had about thirty years of experience in social work, had served as a supervisor in 2007, and had a master's degree and a doctoral degree. Id. Ex. 5, at 21-29. Kreager had over twenty years of experience as a social worker and a master's degree. Id. Ex. 5, at 34-38. At the time of his application, Kreager was also performing supervisory duties in the program with the vacancy. Id. Ex. 5, at 34-35.

         To choose among several qualified candidates, the selecting official, Brian Olden, considered the information in the applications, instituted a panel interview process, and checked the candidates' references. The process began when Pamela Kelly, a human resources specialist, reviewed the applications and issued a Merit Promotion Certificate of Eligibles, or a list of qualified applicants. Id. Ex. 5, at 17-19, 99-100. Although Kreager inadvertently submitted an expired license, id. Ex. 2, at 4, he had a current license, id. Ex. 3, at 2-3, Dkt. 43-3, and Kelly included Kreager in the Certificate of Eligibles, id. Ex. 6, ⁋ 4, Dkt. 43-6. Olden then chose to interview Arnold and Kreager, and he selected six other Army employees to serve on the interview panel. Id. Ex. 5, at 46, 67. After the interviews, two of the panelists shared their views with Olden verbally, but most separately shared their views by email. Id. Ex. 5, at 69; see also Id. Ex. 5, at 91, 98. The panelists generally favored Kreager, though one panelist indicated that both candidates would perform adequately. Id. Ex. 5, at 69. Olden also checked references for both candidates by contacting current and former supervisors, including some that were not listed as references in the candidates' applications. Id. Ex. 5, at 70-71. According to Olden, he selected Kreager because he was the best overall candiDated: he had the necessary experience, he performed better during his interview, and he received better reviews from his references. Id. Ex. 5, at 69-71.

         Arnold, however, contends that he was passed over because of his age. To support his motion for summary judgment, Arnold alleges that both Olden and Deborah Scholz, an interview panelist and one of Arnold's former supervisors, commented on his age before he was interviewed. Pl.'s Reply at 3-4, Dkt. 46. Arnold cites a February 10, 2018 email he sent to the Army's attorney that recounted several instances in which Scholz discussed how Arnold and other men dye their hair:

She was fixated on the color of my hair. On at least [three] occasions she would beg[i]n by making reference to the color of my hair. She would go on to talk about how some men do it at home (color) rather than going to a salon or hav[ing] someone else do it. She would talk about what various people did who she knows. . . . On every occasion when she did this she would always ask me if I did my hair myself or did I have someone else do it. I would sit silently and say absolutely nothing until she talked about something else or left my office. This went on constantly with her.

Id. Ex. 2, at 1, Dkt. 46-2. Arnold also asserts, without citation to any evidence, that at a meeting held almost a year before his interview on October 5, 2009, id. at 3, Olden asked about Arnold's age and after Arnold “stat[ed] his age to the group[, ] one participant said ‘damn, I did not know that you are [sic] that old, '” id. at 4. According to Arnold, the group then “laughed and went on for approximately 15 minutes about [his] age.” Id.

         In his complaint, Arnold also made several additional allegations that he mentioned only in passing, if at all, in his motion for summary judgment. First, he alleges that Scholz asked him to identify his age at two meetings. Compl. at 3, Dkt. 25. At one meeting, “[o]n the first day that [Scholz] sat down to talk to the staff, ” Scholz “began by asking various people their age, ” including, presumably, Arnold. Id. The second incident occurred at a “subsequent meeting” when Scholz “asked [Arnold about] his age but no one else.” Id. Arnold does not provide any dates or other context for these remarks. Second, Arnold states that Scholz wrote a particular “memorandum . . . to attempt to show that [Arnold's] age was responsible for him making what she characterized as a mistake relating to soldiers and their families.” Id. That “memorandum, ” which Arnold attached to his complaint, was a September 5, 2012 email that admonished Arnold for failing to take the “on call cell phone” with him the previous weekend. Id. Ex. 4, at 1, Dkt. 25-4. It makes no reference to Arnold's age. Finally, Arnold alleges that in 2010 he heard that the “clinic commander” made a discriminatory comment when discussing whether to promote Arnold for a different position. Id. at 5. Arnold has no firsthand knowledge of this incident, but he alleges that two individuals who were present for the discussion told him that the clinic commander “went into a rage when the suggestion was made to make [Arnold] the supervisor[, ] and [the clinic commander] stated, ‘he will not come back here . . ., he is too damn old.'” Id. Without identifying how, Arnold contends that he “subsequently found out” that Olden “contacted [the clinic commander], who stopped the promotion.” Id. at 6; see also Pl.'s Reply at 4.


         A court must grant summary judgment “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). A fact is “material” if it “might affect the outcome of the suit under the governing law, ” and a dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). At this stage, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. But the nonmoving party must still establish more than the “mere existence of a scintilla of evidence” to survive summary judgment; “there must be evidence on which the jury could reasonably find for the [nonmoving party].” Id. at 252. In other words, a party opposing summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). And 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, ” a court should grant summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         Because Arnold is proceeding pro se, the Court will hold him “to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). Even so, the Court “need not accept inferences unsupported by the facts alleged in the complaint or legal conclusions cast in the form of factual allegations.” Kaemmerling v. Lappin, 553 F.3d 669, 677 (D.C. Cir. 2008) (internal quotation marks omitted).

         The ADEA provides that “[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . in military departments . . . [and] in executive agencies . . . shall be made free from any discrimination based on age.” 29 U.S.C. § 633a(a). When a plaintiff relies on circumstantial, rather than direct, evidence to establish discrimination, the familiar burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies. In a “failure to promote case[], ” the plaintiff must first establish a prima facie case of discrimination by showing that “(1) the plaintiff is at least forty years of age; (2) the plaintiff was qualified for the position in question; (3) the plaintiff was not promoted; and (4) the plaintiff was disadvantaged in favor of a younger person.” Forman v. Small, 271 F.3d 285, 292 (D.C. Cir. 2001). The burden then shifts to the employer to articulate a “non-discriminatory explanation for the challenged personnel action.” Ford v. Mabus, 629 F.3d 198, 201 (D.C. Cir. 2010). At that point, the plaintiff, “as part of his ultimate burden of persuasion, must come forward with evidence that would allow a jury to credit his evidence of age discrimination and discredit the employer's seemingly ...

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