Barta v. Esper

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MARK BLAIR BARTA,

Plaintiff,

v. Civil Action 2:20-cv-1641

Magistrate Judge Chelsey M. Vascura

LLOYD J. AUSTIN III,

Secretary, United States

Department of Defense,

Defendants.

OPINION AND ORDER

Plaintiff, Mark Blair Barta, brings this action against Defendant, Lloyd J. Austin, III,

Secretary, United States Department of Defense, asserting that Defendant failed to hire Plaintiff

due to Plaintiff’s prior age discrimination complaints against Defendant. This matter, in which

the parties have consented to the jurisdiction of the Magistrate Judge pursuant to 28 U.S.C.

§ 636(c), is before the Court on Defendant’s Motion for Summary Judgment. (ECF No. 35.) For

the following reasons, Defendants’ Motion for Summary Judgment is GRANTED IN PART

and DENIED IN PART.

I. BACKGROUND

The relevant facts are largely undisputed. Plaintiff began working as a G-12 litigation

attorney for the Office of General Counsel (“OGC”) for Defense Finance and Accounting

Services (“DFAS”), a division of the United States Department of Defense, in 1992. (Barta Test.

13, ECF No. 35-1.) Plaintiff was shortly after reassigned to an accounting and fiscal law

attorney position based in Columbus, Ohio. (Id.) In the mid-2000s, DFAS’s General Counsel,

Jack Mester, created a consolidation plan that would close several DFAS OGC offices—

including the office in Columbus, Ohio—and consolidate most OGC services in Indianapolis,

Indiana. (Mester Test. 41–45, ECF No. 35-4.) Current OGC employees were given three options:

they could “move with the work” and join the OGC office in Indianapolis; they could retire, if

eligible; or they could find employment elsewhere. (Nelson Decl. 7, ECF No. 35-10.) Plaintiff

opposed this plan, making his views known at multiple staff meetings that the consolidation plan

disproportionately affected older OGC employees for whom relocating would be more difficult.

Plaintiff asserts that he stated during these staff meetings that OGC was “getting rid of all the

older people” and “replacing them with younger people,” and that “all of the employees who

were actually forced to move, or forced to separate, were older than 40.” (Barta Test. 18, 20,

ECF No. 35–1.)

By 2009, Plaintiff had attained a GS-14 level position withing the OGC’s Columbus

office. Rather than move to Indianapolis or retire, Plaintiff obtained a GS-14 level non-attorney

position as a Strategic Policy Analyst within another branch of DFAS. (See Position

Descriptions, ECF No. 35-2, PAGEID #205–09.)

Three years later, in 2012, Plaintiff applied for the GS-15 level position of Supervisory

Attorney Advisor in OGC’s Indianapolis office. (Conrad Decl. 5, ECF No. 35-7.) The hiring

panel for this position consisted of four individuals: Shelby Conrad (the “selecting official” for

the position), Linda Etter, Neal Nelson, and Frank Yount. (Yount Decl. 11, ECF No. 35-9.) The

panelists reviewed application materials and made recommendations as to which individuals

should be interviewed, but the final hiring decision was made by Conrad. (Conrad Decl. 5, ECF

No. 35-7.) The panelists decided to interview only those candidates who had been recommended

for an interview by at least three of the four panelists. (Nelson Decl. 8, ECF No. 35-10.) Plaintiff

was recommended for an interview by Conrad and Etter, but not by Nelson or Yount;

consequently, Plaintiff did not receive an interview and was not considered further for the

position. (Id.; Yount Decl. 11, ECF No. 35-9.) Conrad ultimately selected Frank Quinlan for the

Supervisory Attorney Advisor position. (Conrad Dec. 5–6, ECF No. 35-7.)

Plaintiff filed an Equal Employment Opportunity (“EEO”) retaliation complaint pursuant

to 29 C.F.R. § 1614.106 against Defendant on February 7, 2013, alleging Plaintiff was not

selected for the Supervisory Attorney Advisor position in retaliation for his age-related

opposition to the OGC consolidation plan. (Investigative File, ECF No. 35-2, PAGEID #194.) In

responding to the complaint, Defendant obtained declarations from the four hiring panelists.

When asked why he did not select Plaintiff to be interviewed, Nelson specifically relied on

Plaintiff’s opposition to the consolidation plan:

Mr. Barta was a vocal opponent of [the consolidation] plan. As a result, he elected

to seek other employment and found a non-attorney position at DFAS-Columbus.

In my opinion, this showed a lack of support for the OGC leadership and a lack of

commitment to continuing his career as a federal government attorney. . . . The

position of AGC [Assistant General Counsel] requires strong leadership qualities.

One of them is supporting senior leadership despite the fact that you don’t agree

with their decision. In my evaluation of Mr. Barta’s potential for success as an

AGC, I had serious doubts about his willingness and ability to do what is required

by that position.”

(Nelson Decl. 7, ECF No. 35-10.) During the hearing on Plaintiff’s EEO complaint, Nelson

further testified that he did not select Plaintiff for an interview because, “at the time when a

decision is made by the leader, then as part of the management team you have an obligation to

support that decision and move on,” and Plaintiff “wasn’t going to support the boss.” (Nelson

Test. 103, ECF No. 35-6.) Other DFAS employees testified that Nelson was present in the staff

meetings in which Plaintiff voiced his opposition to the consolidation plan on the basis that it

discriminated against older employees. (Delarosa Test. 121–22, ECF No. 35-1; Bolon Test. 8–9,

ECF No. 35-4.)1

On September 25, 2018, the Administrative Judge presiding over Plaintiff’s EEO

complaint issued a decision finding that “[t]here is no evidence that Complainant’s age or his

prior EEO activity was considered by panel members when they decided not to interview him for

the Supervisory Attorney position.” (Decision 12, ECF No. 35-3.) Plaintiff commenced this

lawsuit pursuant to 29 C.F.R. § 1614.110 on March 31, 2020. (ECF No. 1.)

II. SUMMARY JUDGMENT STANDARD

Under Federal Rule of Civil Procedure 56, “[t]he court shall 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). “The moving party has the initial

burden of proving that no genuine issue of material fact exists, and the court must draw all

reasonable inferences in the light most favorable to the nonmoving party.” Stansberry v. Air

Wisconsin Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (internal quotations omitted); cf.

Fed. R. Civ. P. 56(e)(2) (providing that if a party “fails to properly address another party’s

assertion of fact” then the Court may “consider the fact undisputed for purposes of the motion”).

The burden then shifts to the nonmoving party to “set forth specific facts showing that

there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn

1 Although Nelson testified that he did not recall that Plaintiff’s opposition was based on age

discrimination (Nelson Test. 101, 103–04, ECF No. 35-6), this disputed fact is resolved in favor

of Plaintiff as the non-movant. See Stansberry v. Air Wisconsin Airlines Corp., 651 F.3d 482,

486 (6th Cir. 2011). Further, Defendant does not dispute that Defendant knew of Plaintiff’s

protected activity, i.e., his complaints of age discrimination. (Def.’s Mot. for Summ. J. 13–19,

ECF No. 35) (challenging other elements of retaliation claim, but not the element requiring

Defendant’s knowledge of protected activity).

in his favor.” Id. at 255 (citation omitted). “The nonmovant must, however, do more than simply

show that there is some metaphysical doubt as to the material facts, . . . there must be evidence

upon which a reasonable jury could return a verdict in favor of the non-moving party to create a

genuine dispute.” Lee v. Metro. Gov’t of Nashville & Davidson Cty., 432 F. App’x 435, 441 (6th

Cir. 2011) (internal quotation marks and citations omitted); see also Fed. R. Civ. P. 56(c)

(requiring a party maintaining that a fact is genuinely disputed to “cit[e] to particular parts of

materials in the record”). “When a motion for summary judgment is properly made and

supported and the nonmoving party fails to respond with a showing sufficient to establish an

essential element of its case, summary judgment is appropriate.” Stansberry, 651 F.3d at 486

(citing Celotex, 477 U.S. at 322–23).

III. ANALYSIS

A. Statutory Framework

The Court must first establish the proper statutory framework for Plaintiff’s claims.

Plaintiff’s original and Amended Complaint do not specify any particular anti-retaliation statute

under which he is proceeding, referring only to 29 C.F.R. § 1614.110, which permits

complainants to commence a civil action in federal court following a federal agency’s final

decision regarding a complaint of unequal employment opportunities on the basis of race, color,

religion, sex, national origin, age, disability, or genetic information. 29 C.F.R. §§ 1614.101,

1614.110. But it is apparent from Plaintiff’s Amended Complaint that he seeks redress for

Defendant’s alleged retaliation due to Plaintiff’s age discrimination complaints regarding the

consolidation plan. Accordingly, the appropriate statutory framework is that of the Age

Discrimination in Employment Act (“ADEA”), which prohibits retaliation against employees

because they have opposed age-discriminatory practices. See 42 U.S.C. § 633a(a); Gomez-Perez

v. Potter, 553 U.S. 474, 479 (2008).

Defendant’s Motion for Summary Judgment assumes that Plaintiff advances claims under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), specifically

citing § 2000e-3, which makes its “an unlawful employment practice for an employer to

discriminate against any of his employees . . . because he has opposed any practice made an

unlawful employment practice by this subchapter, or because he has made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or hearing under this

subchapter.” (Def.’s Mot. for Summ. J. 12–13). But Title VII prohibits discrimination on the

basis of only “race, color, religion, sex, or national origin” and does not govern age

discrimination or retaliation for opposing practices that discriminate on the basis of age. See 42

U.S.C. § 2000e-16(a). Plaintiff’s claims are therefore not asserted under Title VII.

Yet Title VII is not irrelevant to the analysis. Courts frequently look to cases construing

Title VII when analyzing ADEA claims. See, e.g., Fox v. Eagle Distrib. Co., 510 F.3d 587, 591

(6th Cir. 2007) (“We have explained that Title VII’s anti-retaliation provision is similar in

relevant respects to the ADEA’s anti-retaliation provision, and that it is therefore appropriate to

look to cases construing Title VII as a source of authority for interpreting the ADEA’s anti-

retaliation clause.”). Both the ADEA and Title VII make separate provision for personnel actions

made by the federal government, as opposed to employment practices by private employers or

state or local governments. See 29 U.S.C. § 633a (ADEA); 42 U.S.C. § 2000e-16 (Title VII). The

two statutes’ federal-sector anti-discrimination provisions both require that “[a]ll personnel

actions . . . shall be made free from any discrimination based on” their respective protected

characteristics (i.e., “discrimination based on age” under the ADEA, and “discrimination based

on race, color, religion, sex, or national origin” under Title VII). 29 U.S.C. § 633a(a); 42 U.S.C.

§ 2000e-16(a). Indeed, “[t]he ADEA federal-sector provision was patterned ‘directly after’ Title

VII’s federal-sector discrimination ban.” Gomez-Perez, 553 U.S. at 487 (quoting Lehman v.

Nakshian, 453 U.S. 156, 167, n. 15 (1981)).

The United States Supreme Court has held that the ADEA’s federal-sector

antidiscrimination language (requiring that “[a]ll personnel actions . . . shall be made free from

any discrimination based on age”) also prohibits “retaliation on the basis of filing an age

discrimination complaint.” Gomez-Perez, 553 U.S. at 479, construing 29 U.S.C. § 633a(a). This

is so even though, unlike the ADEA’s private-sector provisions, the federal-sector provisions

contain no separate, express prohibition on retaliation. Id.; cf. 29 U.S.C. § 623(d) (“It shall be

unlawful for [a private or state or local government] employer to discriminate against any of his

employees or applicants for employment . . . because such individual . . . has opposed any

practice made unlawful by [the ADEA’s private-sector prohibition on age discrimination], or

because such individual, member or applicant for membership has made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or litigation under this

chapter.”).

But although both the federal- and private-sector ADEA provisions prohibit retaliation,

there is an important difference in the plaintiff’s burden of proof between the two owing to their

differing statutory language. Namely, a private-sector employee seeking redress for retaliation

“because” the employee opposed a discriminatory practice must prove that the employee’s

opposition was the “but-for cause” of the resulting adverse employment action. See Gross v. FBL

Fin. Servs., Inc., 557 U.S. 167, 177 (2009) (requiring but-for causation for ADEA private-sector

claims of discrimination “because of” age); Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S.

338, 351–52 (2013) (construing Title VII’s private-sector prohibition on retaliation “because” an

employee opposed a practice made unlawful under Title VII as requiring but-for causation based

on Gross’s reasoning). On the other hand, because the federal-sector ADEA provision eschews

the word “because” and requires instead that personnel actions be made “free from any

discrimination based on age” (29 U.S.C. § 633a(a), emphasis added), the Supreme Court has

recently determined that but-for causation is not required under the ADEA’s federal-sector age

discrimination prohibition. Babb v. Wilkie, 140 S. Ct. 1168, 1172 (2020) (“The plain meaning of

the statutory text shows that age need not be a but-for cause of an employment decision in order

for there to be a violation of § 633a(a).”). Because the Supreme Court has located the ADEA

federal sector’s prohibition on retaliation in this same statutory language, it can be assumed that

the Supreme Court would also allow a federal-sector employee to establish an ADEA retaliation

claim without evidence of but-for causation. See Gomez-Perez, 553 U.S. at 479 (holding that

§ 633a(a)’s language that “[a]ll personnel actions . . . shall be made free from any discrimination

based on age” also prohibits “retaliation on the basis of filing an age discrimination complaint”).

Accordingly, Plaintiff can succeed on his retaliation claim either (1) by demonstrating

that his complaints of age discrimination were the but-for cause of his non-selection (i.e., by

making out a “single-motive” claim), or (2) by demonstrating that, although there may have been

other, non-retaliatory reasons for his non-selection, his complaints of age discrimination were

nevertheless among the reasons for his non-selection (i.e., by making out a “mixed-motive”

claim). Plaintiff is not clear as to which type of claim he intends to advance. Accordingly, the

Court will consider both types of claims.

B. Single-Motive Claim

To succeed on a single-motive claim, Plaintiff must demonstrate that his age

discrimination complaints were the but-for cause of his non-selection. Plaintiff can establish but-

for causation via either direct or circumstantial evidence. Scheick v. Tecumseh Pub. Sch., 766

F.3d 523, 529 (6th Cir. 2014) (single-motive claim “requires that a plaintiff ‘prove by a

preponderance of the evidence (which may be direct or circumstantial) that age was the “but-for”

cause of the challenged employer decision’”) (quoting Gross, 557 U.S. at 177–78). “The direct

evidence and circumstantial evidence paths are mutually exclusive; a plaintiff need only prove

one or the other, not both.” Kline v. Tennessee Valley Auth., 128 F.3d 337, 348–49 (6th Cir.

1997).

1. Circumstantial Evidence

Defendant assumes that Plaintiff cannot present direct evidence of a retaliatory motive

and confines his summary judgment arguments to the McDonnell Douglas circumstantial

evidence framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Imwalle v.

Reliance Med. Prod., Inc., 515 F.3d 531, 544 (6th Cir. 2008) (applying McDonnell Douglas to

private-sector ADEA retaliation claim). Plaintiff bears the initial burden under the McDonnell

Douglas framework to “establish a prima facie case of retaliation by showing that (1) he engaged

in protected activity, (2) this exercise of his protected civil rights was known to the defendant,

(3) the defendant thereafter took an employment action adverse to the plaintiff, and (4) there was

a causal connection between the protected activity and the adverse employment action.” Id. Once

the plaintiff establishes a prima facie case of retaliation, “[t]he burden then shifts to the employer

to produce evidence of a legitimate, nondiscriminatory reason for its actions.” Id. “If the

defendant satisfies this burden, the plaintiff must then demonstrate by a preponderance of the

evidence that the legitimate reason offered by the defendant was not its true reason, but instead

was a pretext designed to mask retaliation.” Id.

Defendant does not dispute that Plaintiff can satisfy the first two elements—that Plaintiff

engaged in ADEA-protected activity when he opposed the consolidation plan on grounds that it

had a disparate impact on older employees, and that Defendant knew of this protected activity—

but argues that Plaintiff can neither establish that Defendant took an adverse employment action

against him, nor that there was a causal connection between Plaintiff’s protected activity and the

non-selection. (Def.’s Mot. for Summ. J. 14–19, ECF No. 35.) The Court disagrees, but

ultimately concludes that even if Plaintiff can establish a prima facie case of retaliation, Plaintiff

has not rebutted Defendant’s legitimate, non-discriminatory reasons for Plaintiff’s non-selection.

a. Adverse Action

The adverse employment action identified by Plaintiff is Defendant’s failure to select him

for the Supervisory Attorney Advisor position. Defendant concedes that “[n]on-selection for a

position may constitute an adverse employment action when the position offers additional

material benefits to the selectee” and that “Plaintiff would have experienced additional material

benefits by way of a pay increase had he filled the vacancy.” (Def.’s Mot. for Summ. J. 14–15,

ECF No. 35.) However, Defendant contends that Plaintiff’s non-selection for the position in

2012 (which would have required Plaintiff to move to Indianapolis) cannot constitute an adverse

employment action because Plaintiff had previously declined a similar position in Indianapolis in

2009 as part of the consolidation plan. (Def.’s Mot. for Summ. J. 15, ECF No. 35.) Defendant’s

argument is essentially that Plaintiff could not have wanted the position in 2012, and therefore

not being selected for it was not an “adverse” action, because Plaintiff did not want a similar

position in 2009. But there are a multitude of reasons why Plaintiff’s willingness to move to

Indianapolis could have changed in the intervening three years. As just one example, no party

has introduced evidence that Plaintiff could have obtained a GS-15 level position in 2009 had he

transferred to Indianapolis—presumably, Plaintiff would have instead been transferred at his

then-current GS-14 level. Thus, Plaintiff might not have been willing to move for a GS-14 level

job, but might have been willing to move for a GS-15 level job with its attendant pay increase.

Whatever Plaintiff’s reasons, the mere fact that Plaintiff applied creates a factual issue as to

whether he wanted the position, and whether his non-selection was accordingly adverse, in 2012.

Further, the case Defendant cites for this argument is distinguishable. In Stewart v. Esper,

815 F. App’x 8 (6th Cir. 2020), the United States Court of Appeals for the Sixth Circuit found

the plaintiff had not established an adverse employment action in the form of not being given

“special assignments,” because, among other things, the plaintiff variously described special

assignments both as something she had been “denied the opportunity” to work on and as having

been assigned to her “over and over again” “as a form of punishment.” Stewart, 815 F. App’x at

18–19. Thus, the Sixth Circuit found contradictions in the plaintiff’s evidence not only as to the

desirability of the denied opportunity, but also as to whether the opportunity had been denied.

There is no such contradiction in this case because the parties agree that Plaintiff was non-

selected for the Supervisory Attorney Advisor position. Defendant has accordingly failed to

demonstrate Plaintiff’s inability to establish an adverse employment action.

b. Causal Connection

In order to demonstrate a causal connection between his protected activity and an adverse

employment action, Plaintiff must “proffer evidence sufficient to raise the inference that [his]

protected activity was the likely reason for the adverse action.” Spengler v. Worthington

Cylinders, 615 F.3d 481, 493–94 (6th Cir. 2010) (quoting Upshaw v. Ford Motor Co., 576 F.3d

576, 588 (6th Cir. 2009)). Plaintiff relies on the declaration and testimony of Neal Nelson for this

element. Nelson declared that one of the reasons he did not choose Plaintiff to be interviewed is

that Plaintiff was a “vocal opponent” of the consolidation plan, which, in Nelson’s view,

demonstrated a lack of leadership ability. (Nelson Decl. 7, ECF No. 35-10.)2 It is undisputed that

2 Defendant points out that, when Nelson was questioned at the EEO hearing about his

declaration stating he did not choose Plaintiff for an interview because Plaintiff was a “vocal

opponent” of the consolidation plan, Nelson stated, “[i]t was more for me the fact that you

didn’t—you didn’t come—you didn’t move. You elected to leave OGC rather than come with

the work.” (Nelson Test. 105, ECF No. 35-6.) But Nelson had just testified that, consistent with

his prior declaration, one of the reasons he did not choose Plaintiff for an interview was that “at

Plaintiff’s opposition to the consolidation plan was based on its alleged disparate impact on older

employees. There is also testimony in the record that Nelson was present in meetings where

Plaintiff voice his age-based concerns and therefore had direct knowledge that Plaintiff’s “vocal

opposition” was based on complaints of age discrimination. (Delarosa Test. 121–22, ECF No.

35-1; Bolon Test. 8–9, ECF No. 35-4.) Finally, the hiring panel’s practice was to interview only

those candidates who had been chosen by three or more panel members. (Nelson Decl. 8, ECF

No. 35-10.) Conrad and Etter selected Plaintiff for an interview, but Nelson and Yount did not.

(Id.; Yount Decl. 11, ECF No. 35-9.) Thus, Plaintiff has proffered evidence that Nelson’s

decision to not choose Plaintiff for an interview, due to his protected complaints of age

discrimination, caused Plaintiff to not be selected for an interview by the panel. And because

only those interviewed were eligible to be selected for the position, the undersigned concludes

that Plaintiff’s protected activity caused him to be non-selected for the Supervisory Attorney

Advisor position. See Weigel v. Baptist Hosp. of E. Tennessee, 302 F.3d 367, 381 (6th Cir. 2002)

(causal connection shown where decision-makers specifically considered the plaintiff’s exit

questionnaire, which contained complaints about discrimination, in reaching their decision).

Defendant argues that Plaintiff cannot demonstrate a causal connection between

Plaintiff’s protected activity and his non-selection because the panel relied on other,

the time when a decision is made by the leader, then as part of the management team you have an

obligation to support that decision and move on,” and Plaintiff “wasn’t going to support the

boss.” (Id. at 103.) Nelson had also testified that Plaintiff’s unwillingness to move itself reflected

a lack of support for management decisions. (Id.) (“I did not believe that Mr. Barta supported the

decision once made, because he elected to—rather than move with the work to the consolidated

office, he elected to leave OGC.”) Thus, Nelson’s testimony that “it was more” Plaintiff’s

unwillingness to move does not negate his declaration’s statement that one of the reasons that

Nelson did not choose Plaintiff for an interview was his vocal opposition to the consolidation

plan.

nondiscriminatory reasons to not select Plaintiff for the position. However, those reasons are

better analyzed in the following step of the McDonnell Douglas framework below.

c. Legitimate, Nondiscriminatory Reasons

Because Plaintiff established a prima facie case of retaliation, the burden now shifts to

Defendant to offer a legitimate, nondiscriminatory reason for Plaintiff’s non-selection for the

Supervisory Attorney Advisor position. Defendant “is not required to persuade the court that it

was actually motivated by the proffered reasons. Rather, it is sufficient for [Defendant] to raise a

genuine issue of fact as to whether” Defendant retaliated against Plaintiff. Provenzano v. LCI

Holdings, Inc., 663 F.3d 806, 814–15 (6th Cir. 2011) (citing Texas Dep’t of Cmty. Affs. v.

Burdine, 450 U.S. 248, 255 (1981)). “To accomplish this, the defendant must clearly set forth,

through the introduction of admissible evidence, the reasons for the plaintiff’s rejection.”

Burdine, 450 U.S. at 255.

Defendant offers several such reasons. To wit, even if Plaintiff had been granted an

interview, Defendant contends Plaintiff would not have ultimately been selected for the position

due to deficiencies in Plaintiff’s skill set:

• Plaintiff “had not been practicing law for approximately 3 to 4 years prior” and had not

been a supervisor during that time. (Etter Decl. 6, ECF No. 35-8.)

• Plaintiff’s “resume reflected typos, poor grammar, and was not well-prepared, which is

not reflective of leadership skills.” (Id.)

• The panel had concerns about Plaintiff’s professionalism in his previous positions with

DFAS. For example, on several occasions, Plaintiff provided legal advice to clients who

were no longer within his area of responsibility at DFAS, making it “difficult, if not

impossible, for the directorate to which [Yount] was assigned to maintain the uniformity

of advice and counsel.” (Yount Decl. 12, ECF No. 35-9.) Moreover, sometimes

Plaintiff’s advice was “different from the advice [ ] given to other sites or conflicted with

what [Yount] believed the law to be.” (Id.) When this occurred, “[Yount] had to contact

the clients he had advised and discuss the matter with them.” (Id.)

• Other attorneys “frequently complained to [Conrad] about working with Mr. Barta on

legal issues where he has represented DFAS Policy. They have expressed discomfort

with his approach to legal issues and his advice. . . .[H]e tends to shoot from the hip

providing bottom line advice without providing an appropriate analysis or explanation of

the associated risks. He tends to tell the senior clients what they want to hear.” (Conrad

Decl. 6–7, ECF No. 35-7.)

Moreover, Conrad, the selecting official, concluded that Quinlan, who was ultimately

selected for the position, was more qualified than Plaintiff:

• Conrad “rated Mr. Quinlan’s technical expertise” in the relevant areas of the law “as

superior to Mr. Barta’s.” (Conrad Decl. 6, ECF No. 35-7.)

• Conrad was “more impressed with the quality of Mr. Quinlan’s work as a supervisor,”

noting that other attorneys had “told [Conrad] (unsolicited) on multiple occasions how

they appreciate Mr. Quinlan’s calm approach to supervision and his skills as a mentor.”

(Id. at 6–7.)

• Quinlan “provides his clients with legal conclusions as well as a reasoned analysis and is

willing to broach with senior leaders the risks associated with” their favored ideas. (Id. at

7.)

Defendant has therefore satisfied his burden to rebut the presumption of retaliation.

d. Pretext

The burden now shifts back to Plaintiff to establish that Defendant’s proffered reasons

are merely pretext for retaliation. “A plaintiff can demonstrate pretext by showing that the

proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant’s challenged

conduct, or (3) was insufficient to warrant the challenged conduct.” Mickey v. Zeidler Tool &

Die Co., 516 F.3d 516, 526 (6th Cir. 2008) (quoting Dews v. A.B. Dick Co., 231 F.3d 1016, 1021

(6th Cir. 2000). Plaintiff has done none of these things. He does not dispute any of the facts

underlying the panelists’ evaluation of him or Quinlan, does not dispute that these were

additional reasons (in addition to Nelson’s statements regarding Plaintiff’s vocal opposition to

the consolidation plan) relied on by the panelists in not selecting him for the position, and does

not dispute that these reasons were sufficient to select Quinlan over Plaintiff.

In sum, although Plaintiff can establish a prima facie case of retaliation, Plaintiff has not

demonstrated that Defendant’s proffered legitimate reasons for his non-selection were merely

pretext for retaliation. Accordingly, Plaintiff cannot succeed on a single-motive claim using

circumstantial evidence.

2. Direct Evidence

Plaintiff may still succeed on a single-motive claim if he can demonstrate via direct

evidence that his protected activity was the but-for cause of his non-selection. “It is well settled

that if a plaintiff presents direct evidence of discrimination, she need not proceed under

the McDonnell Douglas formula.” Weigel, 302 F.3d at 381–82. Direct evidence is “evidence that

proves the existence of a fact without requiring any inferences.” Rowan v. Lockheed Martin

Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004). In the ADEA single-motive retaliation

context, direct evidence is that which, “if believed, requires the conclusion that [the plaintiff’s

complaint of discrimination based on] age was the ‘but for’ cause of the employment decision.”

Scheick, 766 F.3d at 530.

Although neither party considered the possibility of direct evidence in their briefing, the

undersigned finds Nelson’s statements that he did not select Plaintiff for an interview because he

was a “vocal opponent” of the consolidation plan to be direct evidence of a retaliatory motive.

Nelson declared that he did not select Plaintiff for an interview because he vocally opposed the

consolidation plan; Plaintiff vocally opposed the consolidation plan on the basis that it

disparately impacted older employees; therefore, Nelson’s statements in his declaration

“require[ ] the conclusion” that Plaintiff’s age discrimination complaints caused Nelson to not

select Plaintiff for an interview. See Scheick, 766 F.3d at 530. It makes no difference that Nelson

couched his reasoning in terms of Plaintiff’s opposition to leadership decisions in general and not

specifically in terms of Plaintiff’s opposition to leadership decisions on the basis of age

discrimination. From the multitude of permissible reasons to take employment actions, Congress

has prohibited the few reasons having to do with protected characteristics and associated

protected activity in statutes like the ADEA and Title VII. Nelson’s general dislike of

subordinate opposition must yield to the ADEA’s specific protection of opposition based on

good faith complaints of age discrimination.

However, even Plaintiff’s direct evidence cannot overcome Defendant’s other legitimate

reasons for not selecting him for the Supervisory Attorney Advisor position in a single-motive

claim. In other words, the direct evidence of Nelson’s retaliatory motive is not sufficient to

demonstrate that Plaintiff’s protected activity was the but-for cause of Plaintiff’s non-selection

because Defendant has offered additional, legitimate reasons for not selecting Plaintiff. Having

failed to rebut any of Defendant’s legitimate reasons, Plaintiff’s single-motive claim fails under

either the circumstantial or direct evidence framework.

C. Mixed-Motive Claim

The Court was unable to locate any Sixth Circuit precedent applying the Supreme Court’s

recent ruling in Babb that the federal-sector ADEA permits mixed-motive claims. However, the

Sixth Circuit has spoken definitively on private-sector mixed-motive claims under Title VII.

“[T]o survive a defendant’s motion for summary judgment, a Title VII plaintiff asserting

a mixed-motive claim need only produce evidence sufficient to convince a jury that: (1) the

defendant took an adverse employment action against the plaintiff; and (2) “race, color, religion,

sex, or national origin was a motivating factor” for the defendant’s adverse employment

action. White v. Baxter Healthcare Corp., 533 F.3d 381, 400 (6th Cir. 2008) (quoting 42 U.S.C.

§ 2000e-2(m) (emphasis in original)). “This burden of producing some evidence in support of a

mixed-motive claim is not onerous and should preclude sending the case to the jury only where

the record is devoid of evidence that could reasonably be construed to support the plaintiff’s

claim.” Id. “Moreover, as it is irrelevant, for purposes of a summary judgment determination,

whether the plaintiff has presented direct or circumstantial evidence in support of the mixed-

motive claim, see Desert Palace, 539 U.S. at 99–100, 123 S.Ct. 2148, we direct that this

summary judgment analysis just described, rather than the McDonnell Douglas/Burdine burden-

shifting framework, be applied in all Title VII mixed-motive cases regardless of the type of proof

presented by the plaintiff.” Id.

The statutory language providing for mixed-motive claims differs between Title VII’s

private-sector provisions (prohibiting the use of “race, color, religion, sex, or national origin [as]

a motivating factor for any employment practice, even though other factors also motivated the

practice,” 42 U.S.C. § 2000e-2(m)) and the ADEA’s federal-sector provisions (requiring that

personnel actions “be made free from any discrimination based on age,” 29 U.S.C. § 633a(a)).

However, the Court can discern no practical difference between Babb’s holding that § 633a(a) is

violated “[i]f age discrimination plays any part in the way a decision is made” and § 2000e-

2(m)’s prohibition on the use of protected characteristics as “a motivating factor for any

employment practice.” See Babb, 140 S. Ct. at 1174. The Court therefore finds it appropriate to

apply the Sixth Circuit’s Title VII’s private-sector mixed-motive guidance in White to federal

sector ADEA claims.

Here, Plaintiff easily satisfies the elements set forth in White. First, as explained above,

Defendant took an adverse action against Plaintiff when Plaintiff was non-selected for the

Supervisory Attorney Advisor position in 2012. And second, Defendant’s discrimination based

on Plaintiff’s protected activity was a motivating factor in Plaintiff’s non-selection as evidenced

by Nelson’s declaration that he declined to select Plaintiff for an interview due to Plaintiff’s

vocal opposition to the consolidation plan. It certainly cannot be said that “the record is devoid

of evidence that could reasonably be construed to support the plaintiff’s claim.” White, 533 F.3d

at 400. Plaintiff therefore survives summary judgment as to liability on his mixed-motive claim

of retaliation.

However, the available remedies in a mixed-motive case are heavily circumscribed

compared to single-motive cases. Specifically, to obtain “reinstatement, backpay, compensatory

damages, or other forms of relief related to the end result of an employment decision,” a mixed-

motive plaintiff “must show that age discrimination was a but-for cause of the employment

outcome.” Babb, 140 S. Ct. at 1177–78. This distinction is necessary because the available

remedies should place the plaintiff in the position he would have occupied in the absence of the

impermissible discrimination or retaliation. See id. at 1178. If retaliation is not the but-for cause

of Plaintiff’s non-selection in 2012, then it cannot be said that Plaintiff would have been selected

for the position (or even selected to interview for the position) in the absence of retaliation, and

therefore to award Plaintiff the position, backpay, or compensatory damages would put Plaintiff

“in a more favorable position than he or she would have enjoyed absent [retaliation].” Id.

Instead, a federal-sector ADEA plaintiff who establishes liability for a mixed-motives claim can

obtain only “injunctive or other forward-looking relief.” Id.

All of the remedies sought in Plaintiff’s original and Amended Complaints are “related to

the end result of the employment decision.” Specifically, Plaintiff seeks:

(1) Promotion to the GS-15 position.

(2) Promotion to any other position the Court deems more likely than not that the

plaintiff would have obtained.

(3) Back pay, including the Plaintiff's increased TSP contributions, plus interest

of gains in the TSP.

(4) Reimbursement for training and back training.

(5) Reimbursement for emotional distress, including medical bills relating to

Type II diabetes.

(6) Such other remedies at law or equity that the Court may determine proper.

(Am. Compl. 2, ECF No. 26.) With the exception of the final “catch-all” request for relief, all of

these remedies are foreclosed by Babb. Plaintiff may still be entitled to “injunctive or other

forward-looking relief,” although Plaintiff has not identified any such relief at this stage.

In sum, Defendant is not entitled to summary judgment as to liability on Plaintiff’s

mixed-motive claim, but Defendant is entitled to summary judgment as to the specific remedies

Plaintiff sought in his Amended Complaint. Defendant is not, however, entitled to summary

judgment on any injunctive or other forward-looking relief arising out of Plaintiff’s mixed-

motive claim.

IV. DISPOSITION

For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 35) is

GRANTED IN PART and DENIED IN PART. To the extent Plaintiff intends to advance a

single-motive claim for retaliation under the ADEA, summary judgment in Defendant’s favor is

GRANTED. To the extent Plaintiff intends to advance a mixed-motive claim for retaliation

under the ADEA, summary judgment is DENIED as to liability and as to any injunctive or other

forward-looking relief arising out of Plaintiff’s mixed-motive claim, but GRANTED in

Defendant’s favor as to Plaintiff’s requests for damages, backpay, and reinstatement.

IT IS SO ORDERED.

/s/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE