FINDING OF FACTS AND CONCLUSIONS OF LAW
AMIT
P. MEHTA UNITED STATES DISTRICT JUDGE.
I.
INTRODUCTION
This
case arises out of Plaintiff Brett Steele's former
employment with the College of International Security Studies
(“CISA”) at the U.S. Department of Defense's
National Defense University. Dr. Steele filed this civil
action against Defendant, the Secretary of Defense in his
official capacity, pursuant to the Age Discrimination in
Employment Act of 1967 (“ADEA”), 29 U.S.C. §
621 et seq. Dr. Steele claims that the ADEA was
violated when CISA terminated his employment in favor of
retaining and later hiring younger instructors. In June 2019,
the court conducted a four-day bench trial on Dr.
Steele's claim.
As
required by Federal Rule of Civil Procedure 52(a)(1), the
court now makes its Findings of Fact and Conclusions of Law.
The court has reviewed the parties' submissions,
carefully considered the evidence presented at trial, weighed
the credibility of the witnesses, and applied the applicable
law. For the reasons set forth in these Findings, the court
finds that Dr. Steele has not met his burden of proving that
CISA terminated his employment because of his age.
Accordingly, the court will enter judgment in favor of
Defendant.
II.
FINDINGS OF FACT
A.
CISA Hires Dr. Steele
1. Dr.
Brett Steele has a Ph.D. degree in history of science and
technology from the University of Minnesota. He earned his
Master of Science degree in mechanical engineering from
Stanford University and his Bachelor of Science degree in
mechanical engineering from California Polytechnic State
University. Trial Tr., June 17, 2019 [hereinafter Day 1], at
20-21;[1] Pl.'s Ex. 31.
2.
After earning his Ph.D., Dr. Steele taught history in a wide
range of courses at the University of California, Los
Angeles. Day 1 at 23. He then took a two-year research
position at the Massachusetts Institute of Technology
(“MIT”). Id. at 25. Following his time
at MIT, Dr. Steele worked at the RAND Corporation, a
securities studies think tank, for three-and-a-half years.
Id. at 26. While at RAND, Dr. Steele worked on a
host of issues, including reforming the military acquisition
process, terrorism and counterterrorism strategy, and nation
building. Id. at 27. He then secured employment with
the Homeland Security Institute in Washington, D.C., where he
researched various homeland security issues. Id. at
28. He then moved to the Joint Improvised-Threat Defeat
Organization as a business development manager. Id.
at 28-29.
3. In
early spring 2010, Dr. Steele applied for a teaching position
at the College of International Security Studies
(“CISA”) at the Department of Defense's
National Defense University (“NDU”). Id.
at 29-30. One of five colleges at NDU, CISA's mission is
to prepare and educate civilian and military security
professionals from the military branches, federal agencies,
and other countries. CISA has two campuses-one at Ft. McNair
in Washington, D.C., and one at Ft. Bragg in North Carolina.
In his application, Dr. Steele highlighted his experience in
using economic modeling to teach and explain terrorism and
counterterrorism strategy. Id. at 33.
4. As
part of CISA's hiring process, Dr. Steele was asked to
make a formal research presentation. Id. at 31.
Present for this part of the interview process was Dr.
Querine Hanlon, the Dean of CISA, who would become Dr.
Steele's second-level supervisor. Id. at 32. Dr.
Steele's application of economic modeling to military
strategy was a major discussion topic. Id. at 33.
5. Dr.
Steele's interview evidently went well, as he was offered
an assistant professorship at CISA. The position, however,
would require him, after a year at Ft. McNair, to relocate to
Ft. Bragg, as part of a new master's degree program for
Special Forces officers and soldiers. Id. at 35. Dr.
Steele declined because of the distance from Washington,
D.C., and because of considerations for his wife's
career. Id. at 37-38.
6.
Shortly thereafter, Dean Hanlon contacted Dr. Steele and
advised him that, as a result of a reorganization, a position
had opened up at Ft. McNair in the International Securities
Studies Department. Id. at 38. Dr. Steele
interviewed for the position, CISA offered it to him, and he
accepted. Id. at 40, 43. During this second
interview process, Dr. Steele met for the first time Dr.
Alejandra Bolanos, the Associate Dean of CISA and head of the
International Securities Studies Department, who would become
Dr. Steele's first-level supervisor. Trial Tr., June 18,
2019 [hereinafter Day 2], at 83-84. At the time CISA hired
Dr. Steele he was 47 years old. Day 1 at 13 (concession from
Defendant's counsel as to Dr. Steele's age).
7. CISA
hired Dr. Steele pursuant to authority contained in 10 U.S.C.
§ 1595. The offer of employment was for three years,
with the first year on probationary status. Id. at
41. A CISA employee under § 1595 can be terminated at
any time during the probationary term without notice, and
this is “a discretionary decision.” Trial Tr.,
June 20, 2019 [hereinafter Day 4], at 30, 40; Def.'s Ex.
1, ¶ 19.b. CISA's teaching contracts are for a
specific term-three years-to provide flexibility in staffing
so that the school can meet changing academic needs and
priorities. Day 1 at 204; Day 4 at 30-31. Dr. Steele
testified that he had concerns at the outset about accepting
a position with a probationary period, which he discussed
with Dean Hanlon. Day 1 at 41. Dr. Steele stated that Dean
Hanlon assured him that they “only get rid of people
from CISA . . . if they really mess up.” Id.
at 42. Dr. Steele also testified that because of his concern
over the probationary year, he negotiated with Dean Hanlon to
be given a formal mid-year review, during which any issues
that “CISA management thought would jeopardize [his]
ability to . . . pass [his] probationary year, ” could
be addressed and he would be given a chance to correct them.
Id. Dr. Steele stated that, based on Dean
Hanlon's assurances that people were only let go in their
probationary year if “they really do outrageous things,
” he believed “[t]hat as long as [he] did a
competent job teaching, [he] had a really good new
career.” Id. at 42-43. Dr. Steele testified
that he never received the promised review. Id. at
81.
8. The
funding for Dr. Steele's position came from an
interagency memorandum agreement with the U.S. Army special
operations command, which was based out of Ft. Bragg, to
develop a graduate program for army officers. Trial Tr., June
19, 2019 [hereinafter Day 3], at 119. Dr. Steele was not
aware of the funding source for his position. Day 1 at 200.
9. Dr.
Steele began teaching in September 2010. He testified that he
did not receive any formal orientation, handbook, or even
guidance materials before he commenced teaching. Id.
at 47. The only form of guidance he received was a copy of
the syllabus and reading materials. Id. at 46.
Concerned about the lack of direction, Dr. Steele requested a
meeting with Dr. Bolanos. Id. at 47. The two met.
During that meeting, according to Dr. Steele, Dr. Bolanos
“started talking about how wonderful CISA now is now
that they're under new management and now that
they've gotten rid of all these older faculty
professors.” Id. at 49. Dr. Steele testified
that when he asked what she meant, Dr. Bolanos explained that
CISA used to have . . . these older professors who were
really difficult to work with, they were very stubborn, they
wouldn't take management guidance, it was really hard to
work with them. And then they brought in more younger
professors and, gosh, was it a breath of fresh air. It just
made all the difference.
Id.
10. Dr.
Steele testified that Dr. Bolanos elaborated with two
examples. She described Dr. Peter Thompson, a younger
professor, as “hardworking, ” “takes
guidance, ” “listens to management, ” and a
“wonderful guy.” Id. Dr. Bolanos then
compared Dr. Thompson to an “older administrator,
” Nadine Jones, in her 50s. According to Dr. Steele,
Dr. Bolanos said:
[S]he's lazy, she likes to play computer games, like
solitaire, on office time. She resists work. She is just
impossible, so bad that we ended up getting her terminated.
But then because she's black, she was able to raise
concerns about this termination with the [Equal Employment
Opportunity Commission] office and forced us to rehire her,
and yet she's still really lazy and this is really
annoying and really bugs me that we have to deal with these
lazy, older people. There are still lazy older people that we
have to deal with.
Id. at 49-50. Dr. Steele testified that he was
“shocked” and “really concerned”
about these comments. Id.
11. Dr.
Bolanos denied making the statements that Dr. Steele
attributed to her, particularly saying that younger employees
were a “breath of fresh air.” Day 2 at 104-05.
She also denied making any comments along the lines that
“newer employees were easier to work with than older
employees.” Id. at 105.
12. For
several reasons, the court does not credit Dr. Steele's
version of the conversation he had with Dr. Bolanos.
a.
First, Dr. Steele clearly embellished his testimony. In no
prior statement about the meeting with Dr. Bolanos did Dr.
Steele provide the kind of detail that he did at trial. Not
in his federal court complaint, in his Equal Employment
Opportunity (“EEO”) complaint, in interrogatory
responses, nor his deposition did he attribute the words he
did to Dr. Bolanos during his direct testimony. Day 1 at
10-35. To be sure, Dr. Steele previously stated that Dr.
Bolanos had said that she found young people to be a
“breath of fresh air, ” see Pl.'s
Opp'n to Def.'s Mot. for Summ. J., ECF No. 28
[hereinafter Pl.'s Opp'n], Dep. of Brett Steele, ECF
No. 28-1, at 110, but he never attributed to her words like
“lazy” and “annoying” in reference to
older employees or any particular employee. Nor did he
express the idea that Dr. Bolanos was happy to be rid of
older professors. Day 1 at 10-35. And he never said anything
about Dr. Bolanos referencing an employee's race as the
reason that CISA was unable to fire her.
b.
Second, the court finds it implausible that Dr. Bolanos would
have expressed herself in the manner that Dr. Steele claims
to someone who was, by and large, a stranger to her. Dr.
Bolanos had become acquainted with Dr. Steele only through
the interview process and at the start of his employment. Day
1 at 40 (Dr. Steele stating that he met Dr. Bolanos for the
first time during his second interview). It is far-fetched
think that Dr. Bolanos would have made such explicit ageist
and racist remarks to a new hire, particularly one that was
older than her.
c.
Third, based on their relative demeanors at trial, the court
found Dr. Bolanos to be more credible than Dr. Steele.
Particularly on cross-examination, Dr. Steele was evasive and
not forthcoming with his answers. Dr. Bolanos, by comparison,
came across as a candid witness.
13. The
court also heard from Dr. Thomas Blau, a former colleague of
Dr. Steele at NDU. Dr. Blau testified that he observed Dean
Hanlon making ageist comments towards another colleague, Dr.
Thomas Marks.[2] Dr. Blau recounted that once, during a
meeting when Dr. Marks got up to go to the bathroom, Dean
Hanlon asked, “Is that an old guy thing?” Dr.
Blau further testified that Dr. Marks had “very bad
hearing” and that Dean Hanlon “mocked him for
that, ” and would “roll her eyes at
meetings” because of Dr. Marks's hearing issues.
Dean Hanlon denied mocking Dr. Marks or rolling her eyes. Day
3 at 52. She testified that she was close to Dr. Marks, he
was a mentor, and she never directed the “old guy
thing” statement to Dr. Marks. Id. at 52, 68-
69.
a. The
court is unconvinced based on Dr. Blau's testimony that
Dean Hanlon possesses a general bias against older
colleagues. The court found compelling Dean Hanlon's
testimony about her relationship with Dr. Marks-including an
episode in which she secured the renewal of his contract,
id. at 98-100-and thus credits her denial of mocking
him because of his age.
b.
Furthermore, Dean Hanlon convincingly established a history
of promoting positive employment actions for older faculty
and staff, including some during their probationary term,
id. at 90-94, 100-01, which undermines the notion
that she was predisposed to harbor animus against Dr. Steele
based on his age.
B.
Conflict Arises Regarding Dr. Steele's Teaching
Method
14.
Over the course of the 2010-2011 academic year, Dr. Steele
taught or co-taught several classes: Geostrategy; Origins of
Conflict in War; Strategic Thought; and Information and Cyber
Revolutions. Day 1 at 53, 55, 82. Early in the spring 2011
semester, conflicts arose between Dr. Steele and his
supervisors regarding his teaching methods.
15. On
or about February 20, 2011, Dr. Steele attended a meeting
with his supervisors, Dean Hanlon and Dr. Bolanos.
Id. at 59-60. According to Dr. Steele, although
generally complimentary of his teaching, they were critical
of his use of certain economic concepts in presenting the
Strategic Thought ...