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Steele v. Esper

United States District Court, District of Columbia

November 15, 2019

BRETT STEELE, Plaintiff,
v.
MARK ESPER, SECRETARY OF DEFENSE, Defendant.

          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 ...


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