United States District Court, District of Columbia
L. FRIEDRICH UNITED STATES DISTRICT JUDGE.
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.
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
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.
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.
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.”
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.
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).
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).
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 ...