Reynolds v. Tangherlini

• Citation: 737 F.3d 1093
• Decision Date: 12 December 2013
• Docket Number: No. 12–1010.,12–1010.
• Parties: James REYNOLDS, Plaintiff–Appellant, v. Daniel M. TANGHERLINI, Administrator, United States General Services Administration, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

737 F.3d 1093

James REYNOLDS, Plaintiff–Appellant,

v.Daniel M. TANGHERLINI,^* Administrator, United States General Services Administration, Defendant–Appellee.

No. 12–1010.

United States Court of Appeals,Seventh Circuit.

Argued Sept. 18, 2012.

Decided Dec. 12, 2013.

James Reynolds, Chicago, IL, pro se.

Kurt Lindland, Abigail L. Peluso, Office of the United States Attorney, Chicago, IL, for Defendant–Appellee.

Before FLAUM, SYKES, and TINDER, Circuit Judges.

SYKES, Circuit Judge.

James Reynolds was 62 years old when his employer, the U.S. General Services Administration (“GSA”), passed him over for a promotion in favor of a 32–year–old employee. Reynolds sued the GSA Administrator alleging that the agency discriminated against him on the basis of age in violation of the “federal sector” provision of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 633a. He also brought claims under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e–16, alleging discrimination on the basis of race and sex, and claims for retaliation in violation of both the ADEA and Title VII.

The district court disposed of the retaliation claims on summary judgment for failure to exhaust administrative remedies, and Reynolds dropped his claims of racial and sex discrimination. Then after a three-day bench trial, the district court rejected the age-discrimination claim for lack of evidentiary support and refused to allow Reynolds to amend his complaint to add new claims. Reynolds appeals.

The most important issue in this case is one of first impression in this circuit: Does the ADEA's federal-sector provision, 29 U.S.C. § 633a(a), require the plaintiff to prove that age was the but-for cause of the challenged personnel action? Reynolds argues that it does not, and his reading of § 633a(a) has support from a decision of the D.C. Circuit that interprets the statute as authorizing “mixed motives” claims. See Ford v. Mabus, 629 F.3d 198 (D.C.Cir.2010). The Supreme Court's decisions in University of Texas Southwestern Medical Center v. Nassar, ––– U.S. ––––, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013), and Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), give us reason to question that holding. The GSA Administrator has sidestepped the issue, arguing instead that the district court's findings defeat the age-discrimination claim regardless of whether a but-for requirement or a more lenient “mixed motives” standard applies. We agree, and so we leave the causation question for another case when the legal standard makes a difference and has been more completely briefed. The judgment is affirmed.

I. Background

Reynolds, a 62–year–old white male with more than 30 years' experience with GSA, was passed over for a promotion in May 2005. Then a Building Management Specialist, Reynolds applied for a position as a Building Manager. But Antoine Bell, a 32–year–old black employee, got the nod over Reynolds and three other candidates, all of whom were older than 40. Kenneth Kipnis, the Supervisory Property Manager, made the decision. Kipnis did not interview any of the candidates before deciding who would get the promotion. Instead, he relied on his knowledge of and experience with the five candidates, together with a review of their résumés, education, and specialized experience and abilities.

After losing the promotion,¹ Reynolds met with a counselor in the GSA's equal employment opportunity (“EEO”) office and thereafter filed a handwritten administrative complaint asserting multiple claims of employment discrimination. One of his claims was that he had been harassed for unspecified “whistleblowing” activities. He also generally alleged that an “environment [of] harassment” existed at the agency. The EEO office informed Reynolds that it would only investigate claims that the GSA had discriminated or retaliated against him on the basis of race, color, sex, or age.

In response Reynolds urged Laveda Jarrett, GSA's Regional EEO Manager, to review his claim of “harassment.” He noted that his initial complaint had incorporated by reference an arbitration hearing and his EEO counselor's notes, evidence that he believed would provide Jarrett with the factual basis for his claims. But he did not give her anything more specific about the arbitration—such as a transcript of the hearing—and Jarrett informed Reynolds that his reliance on the EEO counselor's notes was insufficient because they lacked the factual detail necessary to permit the EEO office to investigate.

Jarrett specifically invited Reynolds to provide her with factual support for the alleged harassment, but the record does not indicate that Reynolds ever did so. Instead, he vaguely claimed that at an unspecified time in the past, GSA officials who were serving as officers at a Chicago credit union “undermin[ed]” the labor union for which Reynolds served as an officer. He also claimed that other GSA officials were responsible for creating a “culture fostering harassment,” but again he provided no factual specifics other than the name of one of the officials. Based on the lack of factual detail and the apparent absence of any connection to cognizable employment discrimination, the EEO office did not investigate Reynolds's generalized claim of “harassment.”

The rest of Reynolds's administrative complaint concerned his allegations of discrimination based on age and race. The EEO office disposed of these claims summarily, and on administrative appeal the Equal Employment Opportunity Commission (“EEOC”) affirmed.

Reynolds then sued the GSA Administrator alleging (1) discrimination and hostile work environment based on his age in violation of the ADEA, 29 U.S.C. § 633a; (2) discrimination and hostile work environment based on his race and sex in violation of Title VII, 42 U.S.C. § 2000e–16; and (3) retaliation for engaging in activity protected by the ADEA and Title VII. The GSA Administrator moved for summary judgment, arguing that Reynolds had not exhausted administrative remedies with respect to his retaliation claims and that the remaining claims failed for lack of evidentiary support. Reynolds responded that what he presently was calling his “retaliation” claims he had referred to as “harassment” during the administrative process. The district court agreed with the GSA Administrator that Reynolds failed to exhaust his retaliation claims and declined to consider them further, and denied the balance of the motion.

Reynolds then abandoned all but his age-discrimination claim, which was tried to the court. Prior to closing argument, Reynolds moved to amend his complaint under Rule 15(b)(2) of the Federal Rules of Civil Procedure to add a new retaliation claim under the Rehabilitation Act, see29 U.S.C. § 794, which incorporates certain provisions of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq. The motion was premised on Kipnis's testimony during the bench trial.

Kipnis testified that one of the factors that contributed to his decision not to promote Reynolds was a negative experience he had with him over an issue of ADA compliance. At the time of the incident, Reynolds worked for a GSA office that was responsible for inspecting leased locations. The office conducted two types of inspections: initial-acceptance inspections, which ensured that buildings complied with the government's specifications before a lease was accepted; and periodic inspections, which ensured ongoing compliance with the terms of existing leases. Reynolds had conducted a periodic inspection on a building that the government was leasing in Chicago and for which Kipnis was responsible. Reynolds had identified what he thought were ADA accessibility deficiencies in the restrooms, and he thought the landlord should be ordered to correct the deficiencies immediately. Kipnis disagreed. The deficiencies were minor (“tolerance deficiencies,” he called them), and the cost to correct them ultimately would be borne by the government under the terms of the existing lease. Because no disabled employees worked at that location at the time and the tenant agency was not complaining, Kipnis decided to simply notify the landlord about the deficiencies and the need to remedy them in the future. Reynolds was uncooperative and seemed unwilling to accept the decision, which was Kipnis's to make. Kipnis testified that he took Reynolds's resistence into account when evaluating his interpersonal skills in connection with the promotion decision.

Reynolds argued that Kipnis's testimony supported a new claim that he was denied the promotion because he engaged in activity protected by the ADA. He also sought to add a claim pursuant to Rule 15(b)(1) for violation of the Whistleblower Protection Act, 5 U.S.C. § 1221, based on (as far as we can tell) unspecified complaints he made in October 2000 attempting to draw attention to what he perceived as waste and mismanagement at the GSA in connection with a purchase of property. The district court denied both motions to amend.

Following trial, the district court entered written findings of fact and conclusions of law rejecting the age-discrimination claim for lack of evidentiary support. Reynolds then renewed his motion to add a Rehabilitation Act retaliation claim to his complaint and moved for a new trial on that claim. The district court denied the motion and entered final judgment. This appeal followed.

II. Discussion

Reynolds challenges the district court's refusal to consider his retaliation claims based on failure to exhaust administrative remedies. He also attacks the court's findings of fact and conclusions of law following the bench trial on his age-discrimination claim, arguing primarily that the court applied the wrong causation standard. Finally, he contends that the court should have permitted him to amend his complaint pursuant to Rule 15(b)(1) and (2) to add a retaliation claim under the ...