United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 7, 2001 Decided November 16, 2001

No. 00-5256

Paul Forman,
Appellant

v.

Lawrence M. Small, Secretary, Smithsonian Institution,
Appellee

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 Coun-
sel, 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.
s 633a (1994 & Supp. V 1999). He contends that he estab-
lished a prima facie 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.

I.

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

__________
1 An "atomic clock" is a clock in which the "periodic process is a
molecular or atomic event associated with a particular spectral
line." A New Dictionary of Physics 94 (H. J. Gray & Alan Isaacs
eds., 1975).


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 chap-
ter 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 perfor-
mance appraisal (evaluating only his performance from Sep-
tember 1, 1989 to May 1990 for the evaluation period of
September 1, 1989 to August 31, 1990), however, was "unac-
ceptable" as to the "single critical element" of his assignment,
namely to draft a "book-length manuscript." An accompany-
ing 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 princi-
pal 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 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

__________
2 A "maser" pre-dates the laser, but works under the same
principle as a laser, with the generated beam occurring in the
microwave region of the spectrum, which lies between infrared
radiation and radio waves, rather than, like a laser, in the visible,
ultraviolet, or infrared regions of the spectrum. See A New Dictio-
nary of Physics, supra, at 335, 350. A laser is also known as an
"optical maser." Id. at 308. Masers and atomic clocks are interre-
lated because the oscillations produced by a maser can provide the
frequency standard for an atomic clock. Id. at 94.


period, there were six principal features of the promotion
process for all curators at the National Museum of American
History. The Professional Accomplishment Evaluation Com-
mittee, 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 perfor-
mance appraisals as well as the opinions of the curator's
supervisors.3 The Director made an advisory recommenda-
tion to the Secretary. The Secretary also customarily re-
ceived advisory recommendations from his Assistant Secre-
taries before making his final decision. Thus, the Secretary
had the final authority to make decisions regarding pro-
motions.

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 for-
warded Dr. Forman's promotion package to the Assistant
Secretary for Research. The two Assistant Secretaries, Rob-
ert 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. For-
man'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

__________
3 Possible annual performance appraisal ratings were outstand-
ing, highly successful, fully successful, improvement needed, and
unacceptable. The evaluations considered several performance ele-
ments including research, collections, exhibits, and public and Muse-
um service.


"or any other work of comparable scope." Secretary Adams
decided that consideration of a promotion should be post-
poned 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 pro-
motion 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"; Secre-
tary 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 Opportuni-
ty Commission, which was still pending when he was consid-
ered 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 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 responsi-
bility for promotions of scholarly staff to the Directors but
with oversight responsibility in the Provost. Generally, the
Provost could consider promotions only of persons recom-
mended 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 ser-
vice" 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 scholar-
ship, 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 oppo-
sition to the new strategic priorities, and Dr. Crew explained
that he wanted to determine whether Dr. Forman's perfor-
mance 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 Hoff-
man, 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 Hoff-
man 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 impor-
tance to the Smithsonian of indicating that it "prize[s] schol-
arship, 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 memoran-
dum, dated October 27, 1995, which Hoffman interpreted as
implicitly recommending Dr. Forman's promotion. In the
absence of a recommendation from the Museum Director,
however, Hoffman decided to ask Dr. Crew to reconsider his
decision not to recommend Dr. Forman's promotion; Dr.
Crew did not respond. Although Hoffman again favored Dr.
Forman's promotion in light of his research accomplishments,
he never "tested the system to determine" if he had "direct
authority to overrule the museum director's recommenda-
tion," and he did not forward Dr. Forman's complaint to the
Secretary, notwithstanding the Secretary's statement in Octo-
ber 1995 that "[Hoffman] expects to talk with all parties and


then offer me guidance on how to proceed" regarding Dr.
Forman's 1995 promotion. Hoffman explained that he did
not forward the complaint because Dr. Forman had already
filed an EEO complaint, in which a decision would be made
concerning the legitimacy of his claim.

After exhausting his administrative remedies, see 29 C.F.R.
s 1614.201(c), Dr. Forman filed a lawsuit against the Smith-
sonian under the ADEA, 29 U.S.C. s 633a, for age discrimi-
nation and retaliation. The district court, observing that "[i]t
may very well be that [Dr. Forman] ha[d] not been treated
fairly by the Smithsonian," granted summary judgment to the
Smithsonian on Dr. Forman's age discrimination and retalia-
tion claims. The district court found that Dr. Forman had
failed to show that age was a factor in the Smithsonian's
refusal to promote him in 1991-92. In so concluding, the
district court found that the Smithsonian had articulated a
legitimate nondiscriminatory reason for its decision not to
promote him in 1991-92, namely his failure to produce a book
or major publishable work as outlined in his performance
plans, and that Dr. Forman had failed to show that this
explanation was pretext for age discrimination. The district
court made similar findings as to the 1995 promotion, refer-
encing Dr. Crew's memorandum explaining why he was post-
poning Dr. Forman's promotion. The court found that Dr.
Forman failed to show that Dr. Crew's stated explanation for
postponing promotion, namely that Dr. Forman was not
meeting the expectations of his supervisors or aligning with
the priorities of the Museum, was a pretext for retaliation,
and presumably age discrimination. The court also found no
evidence of discriminatory retaliation by Dr. Crew or Acting
Provost Hoffman when he failed to forward Dr. Forman's
complaint to the Secretary. In Part II we address Dr.
Forman's promotion claims. In Part III we address his
retaliation claims.

II.

On appeal, Dr. Forman contends that he presented a prima
facie case of age discrimination because he was over forty
years old when his promotions were denied, he was extraordi-
narily accomplished in his field, the peer committee recom-


mended him in relation to both promotions, he presented
statistical evidence that reflected preferential treatment of
younger curators, and, as to his 1991 promotion, age-laden
comments strongly suggested age bias. He also contends
that he established a prima facie case of retaliation as to his
1995 promotion because he engaged in protected activity by
filing an EEO complaint regarding the denial of his 1991
promotion, his supervisors knew of his EEO activity, and both
Assistant Provost Freudenheim's memorandum and Acting
Provost Hoffman's statement that he did not bring Dr. For-
man's promotion to the Secretary for decision because For-
man had filed an EEO challenge, constituted direct causal
evidence between his protected activity and the denial of his
promotion. Dr. Forman further contends that he presented
sufficient evidence to discredit the Smithsonian's reasons for
rejecting both of his promotions.

Our review of the grant of summary judgment is de novo.
See Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). Accord-
ingly, the court must view the record in the light most
favorable to the nonmoving party, according that party the
benefit of all reasonable inferences. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986); see also Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
Consistent with the courts' reluctance to become involved in
the micromanagement of everyday employment decisions, see
Brown v. Brody, 199 F.3d 446, 451-52 (D.C. Cir. 1999) (citing
Mungin v. Katten, Muchin & Zavis, 116 F.3d 1549, 1556-57
(D.C. Cir. 1997)); Fishbach v. D.C. Dep't of Corr., 86 F.3d
1180, 1183 (D.C. Cir. 1996), the question before the court is
limited to whether Dr. Forman produced sufficient evidence
of age discrimination, not whether he was treated fairly or
otherwise entitled to promotion. The Smithsonian does not
dispute that Dr. Forman is highly praised by outside scholars
for both his exhibits and scholarly writing and that he was
generally qualified for promotion.

Section 633a of the ADEA provides that "All personnel
actions affecting employees ... in the Smithsonian Institution
... who are at least 40 years of age ... shall be made free
from any discrimination based on age." 29 U.S.C. s 633a(a)


(Supp. V 1999). This circuit applies to ADEA cases the
scheme for allocating evidentiary burdens that has evolved in
Title VII discrimination cases. See Krodel v. Young, 748
F.2d 701, 705 (D.C. Cir. 1984). Thus, as summarized in
Cuddy v. Carmen, 762 F.2d 119 (D.C. Cir. 1985), the plaintiff
must first establish a prima facie case of discrimination. Id.
at 122. Upon so doing, the burden of production shifts to the
employer to offer a legitimate nondiscriminatory reason for
its action. Id. Upon the employer's meeting of this burden
of production, the plaintiff, however, carries the overall bur-
den of persuasion, which may be met either indirectly by
showing the employer's reason is pretextual or directly by
showing that it was more likely than not that the employer
was motivated by discrimination. Id. at 123; see Reeves, 530
U.S. at 143, 146-47.

The ultimate question is whether age was a determining
factor in the disputed employment decision. See Cuddy, 762
F.2d at 123. In failure to promote cases, a prima facie case is
made by showing: (1) the plaintiff is at least forty years of
age; (2) the plaintiff was qualified for the position in question;
(3) the plaintiff was not promoted; and (4) the plaintiff was
disadvantaged in favor of a younger person. See Cuddy v.
Carmen, 694 F.2d 853, 856-57 (D.C. Cir. 1982).

A.

Regarding the denial of his 1991 promotion, Dr. Forman
presented evidence that he was a member of the protected
class, he was generally qualified for promotion to Grade 14,
and yet he was not promoted. He also presented evidence
that he alone of all curators had been twice denied pro-
motions in the face of two recommendations by the peer
committee. To support the fourth element of his prima facie
case, Dr. Forman presented expert statistical evidence to
show that younger employees were favored for promotion.
Specifically, Dr. Forman presented evidence that persons
under forty-five years of age had a higher rate of promotion
to Grade 14 than those over forty-five, and that there was an


inverse correlation between a curator's age and the annual
ratings given for research. These differences were statisti-
cally significant using either a one-tailed or two-tailed test of
significance. See Palmer v. Shultz, 815 F.2d 84, 90-97 (D.C.
Cir. 1987). This circuit recognizes statistical data as relevant
in individual discrimination claims. See Minority Employees
at NASA v. Beggs, 723 F.2d 958, 962 (D.C. Cir. 1983); see
also Bell v. EPA, 232 F.3d 546, 553 (7th Cir. 2000); Adams v.
Ameritech Servs., Inc., 231 F.3d 414, 423-24, 427 (7th Cir.
2000). Although the Smithsonian showed that several older
curators were promoted, this is not dispositive, see O'Connor
v. Consol. Coin Caterers Corp., 517 U.S. 308, 312 (1996), and
Dr. Forman maintains that the Smithsonian never disputed
the overall statistical trend. The Smithsonian maintains that
the statistics are deficient because they rely on an overly
broad data pool, but the Smithsonian does not dispute that
the statistics were based on information that it supplied in
response to Dr. Forman's discovery requests.

In any event, Dr. Forman introduced other evidence that
age was a primary consideration in the denial of his pro-
motion in 1991 to meet his prima facie burden, which is not
onerous. See Tex. Dep't of Cmty. Affairs v. Burdine, 450
U.S. 248, 253 (1981). Dr. Forman presented evidence that
when Secretary Adams was reviewing Dr. Forman's 1991
promotion papers with the two Assistant Secretaries, a series
of comments were made that implicitly referred to Dr. For-
man's age. According to Assistant Secretary Hoffman, com-
ments were made that Dr. Forman may be "over the hill" or
in the "twilight of his career," and may have "written his last
significant article." As pointed out in Hunt v. City of Mark-
ham, 219 F.3d 649 (7th Cir. 2000), when decision makers, or
those who have input into the decision, express such discrimi-
natory feelings around the relevant time in regard to the
adverse employment action complained of, "then it may be
possible to infer that the decision makers were influenced by
those feelings in making their decisions." Id. at 653. More-
over, the employer's correlation of old age with declining
productivity represents the very essence of age discrimina-
tion. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 610


(1993); cf. Price Waterhouse v. Hopkins, 490 U.S. 228, 251
(1989).

With this evidence, Dr. Forman has presented a prima
facie case that shifts the burden of coming forward with
evidence to the Smithsonian to show that its action was not
based on Dr. Forman's age. The Smithsonian has met this
burden of production, presenting evidence that Dr. Forman
was not promoted because of his failure to produce a book-
length manuscript on atomic clocks "or any other work of
comparable scope." Because Dr. Forman has no direct evi-
dence of age discrimination, the dispositive question is wheth-
er he showed that the Smithsonian's explanation for its
decision not to promote him in 1991 was a pretext for
discrimination. See St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502, 511 (1993). Dr. Forman disputes that he was obligated
to produce a book during his New York City sabbatical, and
maintains that he, in fact, produced the quantitative word
target set for his sabbatical and was productively focusing on
Townes (but could not complete the biography because
Townes was refusing access to his papers). Dr. Forman
questions why completion of yet another major scholarly
work was made a condition of his promotion, observing that
this supposedly critical requirement vanished in later years
and that completion of a book was not generally a require-
ment for promotion. This is insufficient evidence to show
pretext.

It is undisputed that Dr. Forman's performance plans for
the relevant period called for him to produce a book or
comparable body of work. Dr. Forman did not produce
evidence to show fulfillment of this requirement. The fact
that completion of a book dropped from later promotion
decisions is insufficient to show pretext because the later
promotion decisions occurred under different decision makers
using different procedures, having different priorities, and
considering different performance evaluations. Further, the
fact that Dr. Forman may have met word targets is not the
equivalent of producing a final book-length manuscript; the
latter, not merely the former, was specified in his perfor-
mance plans, and Dr. Forman admitted that he finished


neither his atomic clock book nor his Townes manuscript.
Nor does Dr. Forman's inability to finish his Townes manu-
script because of factors beyond his control rebut the fact
that he did not produce a critical element of his performance
plan for several years. Hence, notwithstanding the age-
based comments at the discussion of his promotion, the
Smithsonian produced evidence of a nondiscriminatory reason
for denying him a noncompetitive promotion in 1991.

Dr. Forman's reliance on Aka v. Washington Hospital
Center, 156 F.3d 1284 (D.C. Cir. 1998), is appropriate to the
extent it sets forth the proper legal analysis, but Aka high-
lights precisely what is missing here. In Aka, the plaintiff
offered evidence from which a reasonable jury could find that
he was "markedly more qualified" than the person selected
for the position at issue. Id. at 1299. Dr. Forman's task is
more difficult to the extent he is competing against himself.
That the promotion of others did not depend on completion of
a book is irrelevant to Dr. Forman's particular promotion
decision. Unless he could show that he had fulfilled the
central purpose of his sabbatical and performance plans, he
cannot show that Secretary Adams' reason for denying his
promotion was pretextual. As the district court explained to
Dr. Forman:

What is relevant is that they thought your work product
or your output was inadequate, given the fact that you
had no other significant responsibilities during that peri-
od of time, and that you were expected, during that two-
year period of time, to produce publishable-quality writ-
ten material. * * * You may disagree with their evalua-
tion of what you were doing that period of time, but
that's not age discrimination.

B.

Dr. Forman's 1995 promotion age-discrimination claim is
supported by neither the statistical evidence nor the age-
based remarks by decision makers that he presented in
connection with the denial of his 1991 promotion. The statis-
tical evidence, which examined only 1990 to 1993 and 1987 to


1992, does not address the relevant period, and there is no
evidence to support the inference that the statistical trends
during these periods extended to 1995. As to Dr. Forman's
age, Dr. Crew, the Director who made the decision to post-
pone his decision on Dr. Forman's promotion until his perfor-
mance during the upcoming year could be evaluated, stated
that he was unaware of Dr. Forman's age when he decided to
postpone Forman's promotion. Although Dr. Forman main-
tains this denial is evidence of age discrimination, this is
speculation, which is not the same as evidence showing that
age was a substantial factor in Dr. Crew's decision. See
McGill v. Munoz, 203 F.3d 843, 846 (D.C. Cir. 2000); see also
Fed. R. Civ. P. 56(e). Rather, the evidence showed that Dr.
Crew focused on whether Dr. Forman would adapt to the
Museum's new direction and his supervisor's expectations.
Other evidence corroborates Dr. Crew's explanation. Dr.
Forman had protested the Museum's new direction, thereby
indicating that the Museum did have a new focus. Further,
Dr. Forman's immediate supervisor had raised some of the
same concerns expressed by Dr. Crew, urging Dr. Forman to
collaborate more with others and do some new exhibition
work and thus "expand the audiences with whom he is
communicating." The evidence that Dr. Forman produced to
suggest that Assistant Acting Provost Freudenheim ques-
tioned whether the Museum had such a new direction was
later retracted by Freudenheim as being based on only
information provided by Dr. Forman, and in any event, at
most, suggests that Dr. Crew's stated explanation might be
false, not that Dr. Crew's decision was age-based.

For these reasons, we hold that Dr. Forman failed to
present a prima facie case of age discrimination in the 1995
denial of his promotion.

III.

We conclude, however, that Dr. Forman produced sufficient
evidence to establish a prima facie case of retaliation when
Acting Provost Hoffman failed to forward Dr. Forman's
complaint materials in response to Secretary Heyman's re-


quest for advice on Dr. Forman's 1995 promotion. In con-
trast, Dr. Forman did not present a prima facie case of
retaliation as a result of Dr. Crew's failure to promote him.
We first address a threshold jurisdictional issue, however,
before turning to the merits.

A.

For purposes of the ADEA, the Smithsonian is included in
the section addressing age discrimination in federal agency
employment. See 29 U.S.C. s 633a(a) (Supp. V 1999). Al-
though the court has considered whether the Smithsonian is a
federal agency under certain statutes, see Expeditions Un-
limited Aquatic Enters. v. Smithsonian Inst., 566 F.2d 289,
296 (D.C. Cir. 1977); Dong v. Smithsonian Inst., 125 F.3d
877, 879 (D.C. Cir. 1997), it has yet to address whether the
Smithsonian is entitled to sovereign immunity.

Several elements of the Smithsonian's congressional design
would appear to suggest that it does have sovereign immuni-
ty. First, it operates under a federal charter, 20 U.S.C. s 41,
and its Board of Regents is composed of or selected by
federal officials, id. ss 42-43. Second, it is authorized to
receive appropriations from Congress. See id. ss 53a, 54;
General Hearings Before the Subcommittee on Library and
Memorials, 91st Cong. 323 (1970), cited in Expeditions Un-
limited Aquatic Enters., 566 F.2d at 296 n.4. Third, "[a]ll
moneys recovered by or accruing to, the institution shall be
paid into the Treasury of the United States, to the credit of
the Smithsonian bequest, and separately accounted for," 20
U.S.C. s 53, and disbursements for payments of debt are
submitted to the Treasury, id. s 57. Ultimately, as the
Supreme Court observed in Land v. Dollar, 330 U.S. 731
(1947), whether "a suit is one against the sovereign" turns on
whether "[t]he 'essential nature and effect of the proceeding'
may be such as to make plain that the judgment sought would
expend itself on the public treasury or domain, or interfere
with the public administration." Id. at 738 (quoting Ex parte
State of New York, 256 U.S. 490, 500, 502 (1921)). Thus,
notwithstanding that the Smithsonian is authorized to receive


gifts from private sources, see 20 U.S.C. s 55, the Smithsoni-
an's structure and federal funding would suggest that Con-
gress's interest in safeguarding the public fisc from money
judgments is no less significant with respect to the Smithsoni-
an than any federal agency. Cf. Story v. Snyder, 184 F.2d
454, 457 (D.C. Cir. 1950). Nonetheless, we do not decide the
issue. Rather, in order to ensure a consistent reading of the
scope of s 633a, we assume that the Smithsonian has sover-
eign immunity.

Consequently, before addressing the merits of Dr. For-
man's retaliation claims, we must first determine whether Dr.
Forman, as an employee of the Smithsonian, may bring a
retaliation claim under s 633a of the ADEA. Although the
Smithsonian, which is represented by the United States At-
torney, does not question whether s 633a prohibits retalia-
tion, the court must because "officers of the United States
possess no power through their actions to waive an immunity
of the United States or to confer jurisdiction on a court in the
absence of some express provision of Congress." Dep't of the
Navy v. Fed. Labor Relations Auth., 56 F.3d 273, 275 (D.C.
Cir. 1995) (quoting United States v. N.Y. Rayon Importing
Co., 329 U.S. 654, 660 (1947)); see also First Va. Bank v.
Randolph, 110 F.3d 75, 77 (D.C. Cir. 1997).

"In analyzing whether Congress has waived the immunity
of the United States, we must construe waivers strictly in
favor of the sovereign and not enlarge the waiver beyond
what the language requires." Library of Congress v. Shaw,
478 U.S. 310, 318 (1986) (citations omitted) (internal quotation
marks omitted); accord United States v. Nordic Village, Inc.,
503 U.S. 30, 34 (1992). Thus, waiver cannot be implied; it
must be unequivocally expressed. United States v. Mitchell,
445 U.S. 535, 538 (1980); Dorsey v. U.S. Dep't of Labor, 41
F.3d 1551, 1554-55 (D.C. Cir. 1994). Accordingly, we turn to
the text of s 633a.

Congress expanded the scope of the ADEA in 1974 to
include state and local governments and federal employers.
See Pub. L. No. 93-259, 88 Stat. 74 (1974) (codified as
amended at 29 U.S.C. ss 630(b), 633a). Unlike state and


local governments, which were merely added to the definition
of "employer" in the ADEA, Congress created an entirely
new section of the ADEA in which it waived federal sovereign
immunity. This section, codified as s 633a, provides that
"[a]ll personnel actions affecting [federal agency] employees
... shall be made free from any discrimination based on age."
29 U.S.C. s 633a(a). Thus, "Congress deliberately prescribed
a distinct statutory scheme applicable only to the federal
sector." Lehman v. Nakshian, 453 U.S. 156, 167 n.15 (1981).
Unlike s 623(d), the ADEA provision governing private,
state, and local employers, however, s 633a does not by its
terms expressly prohibit retaliation. Section 623(d) explicitly
includes retaliation within the specified prohibited forms of
discrimination under the ADEA, providing that "[i]t shall be
unlawful for an employer to discriminate against any of his
employees ... because such individual ... has made a
charge, ... or participated in any manner in an investigation,
proceeding, or litigation under [the ADEA]." 29 U.S.C.
s 623(d) (1994). Moreover, the prohibition of retaliation con-
tained in s 623(d) does not apply to federal employees not
only because the ADEA defines "employer" as used in
s 623(d) to exclude the federal government, see 29 U.S.C.
s 630(b), but also because s 633a(f) specifically provides that
s 633a should not be subject to the provisions of s 623.

These statutory differences between the federal and private
sectors are not dispositive, however, as some courts have
concluded in holding that s 633a does not allow a claim for
retaliation, see Tomasello v. Rubin, 920 F. Supp. 4, 5-6
(D.D.C. 1996), aff'd on other grounds, 167 F.3d 612 (D.C. Cir.
1999); Koslow v. Hundt, 919 F. Supp. 18, 19-21, 21 (D.D.C.
1995), for it is the language that Congress used in s 633a(a)
alone that determines the scope of that provision. Unlike
s 623, which is narrowly drawn and sets forth specific prohib-
ited forms of age discrimination in private employment, Con-
gress used sweeping language when it subsequently extended
the ADEA to cover federal agency employees. Congress
required no less than that "[a]ll personnel actions affecting
employees ... who are at least 40 years of age ... shall be
made free from any discrimination based on age." 29 U.S.C.


s 633a(a) (emphasis added). In enacting s 633a(a), Congress
used unqualified language that encompasses a claim of retali-
ation because "analytically a reprisal for an age discrimina-
tion charge is an action in which age bias is a substantial
factor." See Siegel v. Kreps, 654 F.2d 773, 782 n.43 (D.C. Cir.
1981) (Robinson, J., concurring in part and dissenting in part)
(citations omitted). Congress's failure to mention "retalia-
tion" explicitly does not undermine its intended breadth of
the provision. Cf. PGA Tour, Inc. v. Martin, 121 S. Ct. 1879,
1897, (2001); Teva Pharm., USA, Inc. v. U.S. Food & Drug
Admin., 182 F.3d 1003, 1011 (D.C. Cir. 1999). It is difficult to
imagine how a workplace could be "free from any discrimina-
tion based on age" if, in response to an age discrimination
claim, a federal employer could fire or take other action that
was adverse to an employee. To treat Congress's mandate as
other than comprehensive would produce absurd results,
which courts are to avoid. See Griffin v Oceanic Contractors,
Inc., 458 U.S. 564, 575 (1982). Nothing in the plain language
of s 633a suggests that Congress intended the federal work-
place to be less free of age discrimination than the private
workplace. To the contrary, Congress's actions show that it
intended its mandate to reach more broadly in the federal
sector than in the private sector. In amending the ADEA in
1978, Congress eliminated the upper age limit for federal
employees in order to effectively end mandatory retirement
in the federal sector in most instances, whereas it merely
increased the coverage from 65 to 70 for private employers,
limiting the protection from mandatory retirement in the
private sector. See H.R. Rep. No. 95-950, at 2, 7-8, 10-11
(1978) (Conference Report); 124 Cong. Rec. 8,218 (1978) (Sen.
Javits, ranking minority member of the Human Resources
Committee). Moreover, the intent of Congress as expressed
in the legislative history of s 633a(a) was to "remove discrimi-
natory barriers against employment of older workers in gov-
ernment jobs at the Federal and local government levels as
[the ADEA] has and continues to do in private employment."
S. Rep. No. 93-690, at 56 (1974); see also 120 Cong. Rec.
8,768 (1974) (remarks of Sen. Bentsen, principal proponent of
ADEA extension to federal employees).


This focus on the sweeping language used by Congress is
the same reasoning that the court relied upon in holding that
s 2000e-16, in which Congress waived sovereign immunity
for claims under Title VII, includes a claim for retaliation.
See Ethnic Employees of the Library of Congress v. Boorstin,
751 F.2d 1405, 1415 & n.13 (D.C. Cir. 1985) (citing Porter v.
Adams, 639 F.2d 273, 277-78 (5th Cir. 1981)). In Porter, the
Fifth Circuit explained that s 2000e-16 differs from
ss 2000e-3 and 2000e-4, which are narrowly drawn and
prohibit only specific forms of discrimination, because
s 2000e-16 is drafted broadly to prohibit "any discrimination
based on race, color, religion, sex, or national origin." 42
U.S.C. s 2000e-16; see Porter, 639 F.2d at 277-78. The
court reasoned that "the reasonable conclusion, therefore, is
that by drafting [s 2000e-16] to prohibit 'any discrimination,'
Congress intended to bar the federal government from en-
gaging in all those forms of discrimination identified in
[ss 2000e-3 and 2000e-4], and others as well." Porter, 639
F.2d at 278; see also White v. Gen. Servs. Admin., 652 F.2d
913, 917 (9th Cir. 1981). Sections 633a and 2000e-16 use
identical language in creating a cause of action for federal
employees under the ADEA and Title VII, respectively, and
thus should be interpreted consistently. Indeed, the Su-
preme Court has noted that s 633a, as finally enacted, is
"patterned directly after [s 2000e-16] of the Civil Rights Act
of 1964, which extend Title VII protections to federal employ-
ees." Lehman, 453 U.S. at 167 n.15. Notably, the statutory
pattern here favors an unqualified interpretation of Congres-
sional intent, unlike the statutory pattern that confronted the
Court in Lehman. See id. at 161.

The fact that, unlike s 2000e-16 of Title VII, s 633a of the
ADEA contains an exclusivity provision does not defeat our
analysis. The exclusivity provision provides that federal per-
sonnel actions under s 633a "shall not be subject to, or
affected by, any provision of this chapter," with one exception
not relevant here, see 29 U.S.C. s 633a(f), and makes s 633a
"self-contained and unaffected by other sections." Lehman,
453 U.S. at 168. Courts relying on s 633a(f) in concluding
that s 633a does not allow a claim of retaliation, see Tomasel-


lo, 920 F. Supp. at 6; Koslow, 919 F. Supp. at 19-20, point to
the Supreme Court's language in Lehman that s 633a(f)
means that "federal personnel actions covered by [s 633a] are
not subject to any other section of the ADEA," Lehman, 453
U.S. at 168, and reason that "Congress has made clear that in
interpreting section 633a, the Court may not borrow provi-
sions from elsewhere in the ADEA." Koslow, 919 F. Supp. at
19-20; Tomasello, 920 F. Supp. at 6. The reasoning fails for
two reasons.

First, nothing in the legislative history of s 633a(f), which
was added to s 633a in 1978, see Pub. L. No. 95-256, 92 Stat.
191 (1978), suggests that it was intended to limit the broad
coverage of s 633a that was originally intended. As noted,
the 1978 amendments imposed more stringent requirements
upon the federal sector than the private sector.

Second, our analysis is consistent both with s 633a(f) and
Lehman's interpretation of it because we do not borrow
provisions from elsewhere in the ADEA; rather, we rely on
Congress's use of sweeping language in s 633a(a) itself to
make unlawful "any discrimination" based on age, as age is
defined in the ADEA. In Lehman, the Supreme Court
considered whether a federal employee bringing suit pursuant
to s 633a had a right to a jury trial. Id. at 157. The Court
did not hold, as Koslow implies, that s 633a(f) precludes
courts from interpreting s 633a(a) as prohibiting the same
conduct prohibited in the private sector in other provisions of
the ADEA; rather, Lehman began its analysis with the plain
language of s 633a, asking first whether it contained an
express provision of a jury trial. Working against the back-
ground principle that "[w]hen Congress has waived the sover-
eign immunity of the United States, it has almost always
conditioned that waiver upon a plaintiff's relinquishing any
claim to a jury trial," id. at 161, the Court found no Congres-
sional intent to provide federal employees a jury trial because
there was no express provision for a jury trial in s 633a,
whereas Congress had expressly provided for one for private
employees. Id. at 163. In further support of its conclusion,
the Court pointed to s 633a(f), noting that, in light of Con-
gress's emphasis that s 633a was self-contained, Congress


would not have overlooked the need to provide federal em-
ployees a jury trial if it had so intended. Id. at 168.

In the end, then, s 633a(f) presents somewhat of a red
herring. We do not incorporate the provisions of s 623(d)
into s 633a in concluding that s 633a supports a retaliation
claim against the federal government. Compare Ayon v.
Sampson, 547 F.2d 446, 449-50 (9th Cir. 1976). To the
contrary, we are relying on the plain language of s 633a(a) in
holding that a work place cannot be free from any age
discrimination if an employer can take an adverse employ-
ment action against its employees because the employee has
brought an age discrimination claim against the employer.
This is age discrimination, which s 633a(a) by its own terms
alone prohibits.

For these reasons, we hold that s 633a waives sovereign
immunity as to claims of retaliation. We proceed, therefore,
to address the merits of Dr. Forman's claims.

B.

The McDonnell Douglas framework is applicable to claims
of retaliation. See Passer v. Am. Chem. Soc'y, 935 F.2d 322,
330 (D.C. Cir. 1991); cf. McKenna v. Weinberger, 729 F.2d
783, 790 (D.C. Cir. 1984). In order to establish a prima facie
case of retaliation, a plaintiff must show that (1) he engaged
in protected activity, (2) he was qualified for the promotion,
(3) the employer took an adverse personnel action, and (4) a
causal connection existed between the protected activity and
the adverse action. See Paquin v. Fed. Nat'l Mortgage
Ass'n, 119 F.3d 23, 31 (D.C. Cir. 1997); Mitchell v. Baldrige,
759 F.2d 80, 86 n.5 (D.C. Cir. 1985); McKenna, 729 F.2d at
790. The initial burden is not great, as the plaintiff need only
establish facts adequate to permit an inference of retaliatory
motive. See McKenna, 729 F.2d at 790.

The district court was unpersuaded that Dr. Forman had
made a prima facie case of retaliation. The court construed
Hoffman's statement that he did not bring Dr. Forman's
complaint to the Secretary "since Dr. Forman had already
filed an EEO complaint, in the course of which a decision


would be reached concerning the legitimacy of his claim" to
be, "Let's leave it to the courts." Recognizing that Hoffman
had previously supported Dr. Forman's promotion, the court
rejected Dr. Forman's argument that Hoffman's statement
was per se reprisal and that as a result of Hoffman's inaction,
Dr. Forman was deprived of consideration and procedures
from which he otherwise would have benefitted. The district
court erred by not viewing the evidence most favorably to
Forman in granting summary judgment. Dr. Forman met
his burden by presenting direct evidence of retaliatory mo-
tive. Despite Secretary Heyman's request for advice about
how to proceed on Dr. Forman's 1995 promotion, Acting
Provost Hoffman never forwarded Dr. Forman's complaint
materials to the Secretary because, according to Hoffman
himself, Dr. Forman had filed an EEO complaint about his
1991 promotion. Hoffman's explanation for not doing so was
that the EEO proceeding would determine whether Dr. For-
man was entitled to his promotion. While these and other
evidentiary issues will remain open on remand, for purposes
of summary judgment, Dr. Forman is entitled to the benefit
of all reasonable inferences from the evidence before the
district court.

It is true that Hoffman supported Dr. Forman's promotion.
And it may be true that his failure to forward the complaint
to the Secretary was in good faith. But motive, in the sense
of malice is not required for liability under the ADEA.
Malicious or reckless motive is only pertinent to the issue of
liquidated or double damages, which Congress intended to be
punitive in nature and are not relevant here. See 29 U.S.C.
s 626(b); id. s 216(b); Trans World Airlines, Inc. v. Thur-
ston, 469 U.S. 111, 125 (1985); Smith v. Office of Personnel
Mgmt., 778 F.2d 258, 261 (5th Cir. 1985); see also 42 U.S. C.
l981a(b)(1). "[A]n employer may offer a legitimate non-
discriminatory reason for taking an adverse action against an
employee who has engaged in protected activity.... Howev-
er, the employer may not proffer a good faith reason for
taking retaliatory action." EEOC v. Bd. of Governors of
State Colls. & Univs., 957 F.2d 424, 427-28 (7th Cir. 1992);
see also Hazen Paper, 507 U.S. at 616; Trans World Air-


lines, 469 U.S. at 126 & n.19. Unlawful motive, not malicious
motive, is all that Dr. Forman had to show.

Consequently, even if Hoffman acted in good faith in failing
to forward Dr. Forman's complaint to the Secretary, he
nonetheless would violate the ADEA if his reason for doing so
was retaliatory, i.e., in response to Dr. Forman's 1991 EEO
complaint. Dr. Forman offered evidence, sufficient to defeat
summary judgment, of such a retaliatory and hence unlawful
motive through Hoffman's own explanation of his inaction.
Hoffman's statement is direct evidence that his failure to take
Dr. Forman's complaint to the Secretary was substantially
motivated by Dr. Forman's prior EEO complaint and hence
was retaliatory. Moreover, giving Dr. Forman the benefit of
all reasonable inferences, it is unclear whether Hoffman could
reasonably have thought that the pending EEO proceeding
involving Dr. Forman's 1991 promotion, which turned on his
failure to produce a book or book-length manuscript, would
resolve Dr. Forman's complaint about the denial of his 1995
promotion, which turned on other factors, such as concern
whether he would adapt to the Museum's new focus. Al-
though Hoffman may have thought that administrative reso-
lution of the 1991 promotion in Dr. Forman's favor would
have resolved the question of promotion in 1995, an adverse
resolution would have left unresolved Dr. Forman's claim of
discrimination in 1995. Without a connection between the
two, Hoffman's conduct could reasonably be interpreted as
involving more than "leaving it to the courts."

Dr. Forman also provided evidence of the remaining ele-
ments of a prima facie case of retaliation. First, Dr. For-
man's filing of an administrative complaint regarding the
denial of his 1991 promotion, as well as his appeal to the
Equal Employment Opportunity Commission, were protected
activities. See 29 U.S.C. s 623; Holbrook v. Reno, 196 F.3d
255, 263 (D.C. Cir. 1999). Second, he was generally qualified
for the promotion, and the Smithsonian does not dispute this.
Third, Hoffman's failure to take Dr. Forman's complaint to
the Secretary constituted an adverse employment action,
viewing the record most favorably to Dr. Forman. The
record before the district court showed that Secretary Hey-


man had delegated promotion responsibility to the Directors,
but Dr. Forman introduced evidence that the Secretary had
made an exception in Dr. Forman's case, expressly stating
that Hoffman was to advise him on Dr. Forman's promotion.
Also, the Secretary retained the authority to unilaterally
promote curators. Notwithstanding the Secretary's request,
Hoffman, although aware of the Secretary's statement that he
was awaiting Hoffman's recommendation, never advised the
Secretary how to proceed on Dr. Forman's promotion. Hoff-
man's reason for not acting was that Dr. Forman had filed an
EEO complaint. As a result of Hoffman's inaction, a reason-
able fact finder could find that Dr. Forman was denied the
opportunity for promotion that the Secretary had afforded
him. The Smithsonian did not contend that Dr. Forman
would not have been promoted had Hoffman taken Dr. For-
man's complaint to the Secretary for action. Thus, Dr.
Forman's evidence that Hoffman's inaction was an adverse
employment action is sufficient to defeat summary judgment
for failure to establish a prima facie case of retaliation. See
Cones v. Shalala, 199 F.3d 512, 521 (D.C. Cir. 2000); see also
Ruggles v. Cal. Polytechnic State Univ., 797 F.2d 782, 785-86
(9th Cir. 1986). Further, the Smithsonian's characterization
of its action as a postponement rather than a denial is to no
avail; for purposes of summary judgment, Hoffman's inaction
was the equivalent of non-promotion. See Price Waterhouse,
490 U.S. at 233 n.1.

Dr. Forman's claim that Dr. Crew retaliated against him as
a result of his EEO complaint fails, however, because Dr.
Forman does not allege sufficient facts to show causation.
Although Dr. Crew knew of the EEO complaint, his decision
not to promote Dr. Forman in 1995 occurred three years after
Dr. Forman filed his EEO complaint, which challenged his
non-promotion in 1991 under a different Smithsonian adminis-
tration, and after changes had been made in the Museum's
curatorial staff. Because of the time lapse, Dr. Forman
cannot rely solely on the timing of Dr. Crew's decision not to
promote him to show causation. See Holbrook v. Reno, 196
F.3d 255, 263 (D.C. Cir. 1999); Mitchell v. Baldridge, 759
F.2d 80, 86 (D.C. Cir. 1985). Assistant Acting Provost Freu-


denheim's evaluation of Dr. Crew's denial of promotion also
cannot support a causal connection between Dr. Crew's fail-
ure to promote Dr. Forman and Dr. Forman's protected
activity. After discussing the 1995 promotion decision with
Dr. Forman, Freudenheim indicated that he thought that "it
looks like [Dr. Forman] is being handled prejudicially (either
because he previously sued, or because he's not part of some
vague team concept), and I suspect that [the Smithsonian]
will not win this one if it goes into formal legal processes."
As noted, Freudenheim later qualified this statement, explain-
ing that it was based solely on information Dr. Forman had
provided and that he did not have "all of the pertinent
information at [his] disposal at the time [he] expressed [his]
view." Although Dr. Forman is entitled on summary judg-
ment to have Freudenheim's initial letter credited, see Reeves,
530 U.S. at 150, it is insufficient to establish causation be-
cause it is not based on personal knowledge, but rather is
mere speculation. See McGill, 203 F.3d at 846; see also Fed.
R. Civ. P. 56(e).

Accordingly, because Dr. Forman has established a prima
facie case of retaliation, and the Smithsonian has failed to
meet its burden of production to set forth a legitimate, non-
retaliatory reason for Hoffman's failure to act on Dr. For-
man's complaint, we reverse the grant of summary judgment
on Forman's 1995 retaliation claim; we otherwise affirm. Dr.
Forman's only other contention, that the district court abused
its discretion in denying him further discovery is unpersua-
sive in view of the wide scope of discretion accorded to the
district court. See, e.g., United States v. Microsoft Corp., 253
F.3d 34, 100-01 (D.C. Cir. 2001) (per curiam), cert. denied on
other grounds, 70 U.S.L.W. 3107 (U.S. Oct. 9, 2001); Carey
Canada, Inc. v. Columbia Cas. Co., 940 F.2d 1548, 1559 (D.C.
Cir. 1991).