271 F.3d 285 (D.C. Cir. 2001), 00-5256, Forman v. Small

Docket Nº:00-5256
Citation:271 F.3d 285
Party Name:Paul Forman, Appellant v. Lawrence M. Small, Secretary, Smithsonian Institution, Appellee
Case Date:November 16, 2001
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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271 F.3d 285 (D.C. Cir. 2001)

Paul Forman, Appellant


Lawrence M. Small, Secretary, Smithsonian Institution, Appellee

No. 00-5256

United States Court of Appeals, District of Columbia Circuit

November 16, 2001

Argued September 7, 2001

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Columbia (No. 96cv02735)

Stephen Z. Chertkof argued the cause for appellant. With him on the briefs was Douglas B. Huron.

Diane M. Sullivan, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Kenneth L. Wainstein, U.S. Attorney, R. Craig Lawrence, Assistant U.S. Attorney, and Christine Nicholson, Assistant General Counsel, Smithsonian Institution.

Before: Henderson, Randolph and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge:

Paul Forman appeals the grant of summary judgment to the Smithsonian Institution on his claims of age discrimination and retaliation under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 633a (1994 & Supp. V 1999). He contends that he established a prima facie

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case on each of his claims and rebutted the Smithsonian's stated explanations for its actions. We affirm the judgment on his claims of discrimination with regard to his 1991 and 1995 promotions, but we reverse as to his claim of retaliation with regard to his 1995 promotion.


Paul Forman is a curator for Modern Physics at the National Museum of American History of the Smithsonian Institution. He was hired in 1972 as an associate curator, Grade 12, and received a promotion in 1975 to curator, Grade 13. He was passed over for a non-competitive promotion to Grade 14 in 1988 and 1991-92. In 1995, a decision concerning his promotion was postponed for one year. He was promoted to Grade 14 in 1996 when he was 59 years old. The relevant background to these decisions is as follows.

In May 1988, Dr. Forman requested and was granted a two-year temporary duty assignment to New York City with the primary task of preparing a draft of a book on the history of atomic clocks.1 His normal day-to-day duties as curator, relating to exhibitions and collections, were minimized. For the rating year September 1, 1988, to August 31, 1989, Dr. Forman received a performance appraisal of "fully successful" from his supervisor. In the same performance evaluation, however, his supervisor advised Dr. Forman that he expected a "concentrated and sustained effort ... during th[e] next year on the book project, now that it is underway." At the time, Dr. Forman had only drafted about one-half of a chapter, albeit a lengthy one.

In January 1990, Dr. Forman proposed that the one chapter he had drafted for his book on atomic clocks about Charles Townes and the maser 2 become the basis of a different, shorter book, narrower in scope than the one he had originally committed to write about atomic clocks. His supervisor approved the shorter book. His interim performance appraisal (evaluating only his performance from September 1, 1989 to May 1990 for the evaluation period of September 1, 1989 to August 31, 1990), however, was "unacceptable" as to the "single critical element" of his assignment, namely to draft a "book-length manuscript." An accompanying letter from his supervisor, dated May 22, 1990, described Dr. Forman's lack of substantial progress on the promised book manuscript, focusing on a substantial period of "under productivity" in his central assignment, which was the principal area of his research during the last decade. In his final performance evaluation for the rating period of September 1, 1989 to August 31, 1990, Dr. Forman received a rating of "fully successful"; his supervisor noted that Dr. Forman had begun in the latter part of the performance year to produce "commendable draft chapters of the Townes and the Maser manuscript at a steady pace." Dr. Forman returned to work at the Smithsonian Institution in October 1990. In the next rating year, from

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September 1, 1990 to August 31, 1991, he again received a "fully successful" rating.

Robert McCormick Adams was the Secretary when Dr. Forman was considered for promotion in 1991. During this period there were six principal features of the promotion process for all curators at the National Museum of American History. The Professional Accomplishment Evaluation Committee, which is a peer evaluation committee of curators appointed by the Director of the Museum, considers curators at Grade 13 for possible non-competitive promotion every three years. The peer review committee's recommendation is advisory to the Director of the Museum. The Director also considered other factors such as annual summary performance appraisals as well as the opinions of the curator's supervisors.3 The Director made an advisory recommendation to the Secretary. The Secretary also customarily received advisory recommendations from his Assistant Secretaries before making his final decision. Thus, the Secretary had the final authority to make decisions regarding promotions.

In April 1991, the peer review committee recommended Dr. Forman for promotion to Grade 14. The Director of the Museum advised Dr. Forman in June 1991 that in light of the fact that none of his supervisors thought he was working at a Grade 14 level, and the primacy of a book in his performance plan since 1978, Dr. Forman would not be recommended for promotion. The Director nonetheless forwarded Dr. Forman's promotion package to the Assistant Secretary for Research. The two Assistant Secretaries, Robert Hoffman and Tom Freudenheim, reviewed Dr. Forman's promotion package. Hoffman recommended to the Secretary that Dr. Forman be promoted; Freudenheim recommended against promotion. In March 1992, after reviewing Dr. Forman's promotion package and discussing the matter with both Assistant Secretaries, Secretary Adams decided not to promote him, expressing concern that notwithstanding Dr. Forman's international reputation as an historian, he had failed to produce a book-length manuscript on atomic clocks "or any other work of comparable scope." Secretary Adams decided that consideration of a promotion should be postponed until Dr. Forman completed "a major scholarly work such as the manuscript on atomic clocks, or his proposed biography of Charles Townes, or some other work of his choosing."

During the Secretary's discussion of Dr. Forman's promotion with the Assistant Secretaries, comments were made regarding Dr. Forman's age, generally to the effect that he might be "beyond his years of scholarly productivity"; Secretary Adams denied making these statements. Dr. Forman filed an administrative complaint of age discrimination on May 26, 1992, and upon being denied relief, he filed an administrative appeal with the Equal Employment Opportunity Commission, which was still pending when he was considered for promotion in 1995.

When Dr. Forman was next considered for a promotion in 1995, I. Michael Heyman was the Secretary and Spencer Crew was the Director of the National Museum of American History. Secretary Heyman instituted various changes in the structure and promotion process of the Museum. Secretary Heyman abolished the positions of Assistant Secretary and created in their

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place the position of Provost. During Dr. Forman's 1995 promotion decision, Robert Hoffman served as Acting Provost. Secretary Heyman also instituted a different decision-making system for promotions, delegating responsibility for promotions of scholarly staff to the Directors but with oversight responsibility in the Provost. Generally, the Provost could consider promotions only of persons recommended for promotion by the Director of the Museum. Dr. Crew, in turn, reorganized the Museum to shift its strategic priorities from an "academic mode" toward a "customer service" mode that would be more responsive to the public. The curatorial units were reduced from twenty to five to ensure that curators would be better aware of the interrelationship between their field of expertise and others' and share their knowledge and research with the larger public.

In April 1995, the peer evaluation committee recommended, for a third time, to the Museum Director that Dr. Forman be promoted to Grade 14. Dr. Crew, however, advised Dr. Forman that he was going to postpone his final decision until he could review the results of Dr. Forman's performance plan for 1995-96. While acknowledging the importance of scholarship, Dr. Crew stated that "other factors also weigh quite heavily," most notably the relationship of one's work to the "strategic priorities of the museum" and "the priorities of [one's] supervisor." Dr. Forman had expressed strong opposition to the new strategic priorities, and Dr. Crew explained that he wanted to determine whether Dr. Forman's performance was consistent with the new priorities of the Museum and Forman's supervisors. Dr. Crew did not forward the promotion package to the Acting Provost.

Dr. Forman submitted a complaint to Acting Provost Hoffman, claiming that Hoffman had the authority to promote him unilaterally to Grade 14. In a letter dated October 6, 1995, Secretary Heyman stated that he had requested that Hoffman advise him as to how to act on Dr. Forman's complaint; the Secretary was responding to a letter expressing concern about Dr. Forman's "long overdue promotion" and the importance to the Smithsonian of indicating that it "prize[s] scholarship, originality, and independence" as demonstrated by Dr. Forman. Hoffman turned the complaint and accompanying materials over to Assistant Acting Provost Freudenheim for a recommendation; Freudenheim responded with a memorandum, dated October 27, 1995, which Hoffman...

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