United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 24, 2010 Decided December 10, 2010 

No. 09-5041 

RICHARD T. FORD, 

APPELLANT

v. 

RAYMOND EDWIN MABUS, JR., SECRETARY OF THE NAVY, 

APPELLEE

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:08-cv-00507) 

Michael G. Kane argued the cause for appellant. With 

him on the briefs was David R. Cashdan. 

Daniel B. Kohrman and Melvin Radowitz were on the 

brief for amicus curiae AARP in support of appellant. 

Christian A. Natiello, Assistant U.S. Attorney, argued the 

cause for appellee. With him on the brief were Ronald C. 

Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant 

U.S. Attorney. 

Before: SENTELLE, Chief Judge, HENDERSON and TATEL, 

Circuit Judges. 
2 

Opinion for the Court filed by Circuit Judge TATEL. 

Opinion concurring in the judgment filed by Circuit 

Judge HENDERSON. 

TATEL, Circuit Judge: Appellant, a federal government 

employee, alleges discrimination on the basis of age in 

violation of section 633a of the Age Discrimination in 

Employment Act (ADEA). The district court applied the 

McDonnell Douglas framework and found that appellant had 

failed to meet his ultimate burden of proving that age was the 

but-for cause of the challenged action. Seeing error in neither 

the district court’s fact-findings nor its evidentiary rulings, we 

affirm that portion of its judgment. But because of what this 

court has called section 633a’s “sweeping” language—“all 

[federal government] personnel actions . . . shall be made free 

from any discrimination based on age”—we hold that 

plaintiffs may also establish liability, though not necessarily 

entitlement to such remedies as reinstatement and backpay, by 

showing that consideration of age was a factor in the 

challenged personnel action. We therefore reverse the entry 

of judgment for the government and remand for further 

proceedings consistent with this opinion. 

I. 

Born December 21, 1940, appellant Richard Ford is an 

engineer who works on a variety of issues related to 

electromagnetic effects. With the exception of a brief hiatus 

in the private sector from 1984 to 1986, Ford worked in 

various capacities for the Department of the Navy from 1964 

to 1997. In the 1970s, Ford participated in founding 

SEMCIP, a program focused on testing and improving ship 

systems to reduce electromagnetic problems. Although Ford 

retired in 1997, he continued working as a consultant both for 
3 

the Navy and in the private sector. In 2005, he returned as a 

full-time Navy employee in order to reindex his pension. 

In January of 2006, Ford applied to be branch head of 

NAVSEA, the Naval Sea Systems Command, a position that 

includes oversight of the SEMCIP program. Because the 

prior branch head had also served as Technical Warrant 

Holder, a position responsible for oversight of technological 

developments and design standards, Ford believed he was 

applying for that position as well. 

Before Ford was interviewed for the branch head 

position, Mark Johnson, twenty-five years Ford’s junior, was 

selected as Technical Warrant Holder by a hiring panel 

consisting of three high-ranking Navy engineers, Patrick 

Hartman, James Meng, and Vance Brahosky. The 

interviewing panel for the branch head position included 

Brahosky, as well as Paul Mann, another high-ranking Navy 

engineer. The panel recommended to Meng, the hiring 

official, that the branch head position also go to Mark 

Johnson. According to the testimony of Edward Wallace, a 

former NAVSEA employee who claims he was forced out 

because of his age, Meng had made numerous comments 

about the negative impact of an aging workforce on the health 

of the organization and about the need for younger 

employees. Brahosky testified that he drafted a memo to 

Meng explaining the recommendation, but in discovery he 

was unable to produce that memo. When Brahosky phoned 

Ford to inform him that Johnson had been given the job, 

Brahosky explained that the decision turned on Ford’s lack of 

“topside design experience” and on his statement during the 

interview that he had trouble dealing with bureaucracy. Ford 

challenged both explanations. He then set up a meeting with 

Paul Mann during which Mann told him that his references 

were negative but refused to reveal which references he had 
4 

contacted. Asked directly by Ford whether age had played a 

role in the decision, Mann answered no. 

Ford sued the Secretary of the Navy under ADEA section 

633a, which prohibits discrimination based on age in federal 

employment. Following a bench trial, the district court found 

that although the hiring process was “tinged” with 

consideration of age, Ford had failed to show either that age 

was a determining factor, as required by the McDonnell 

Douglas Corp. v. Green pretext analysis, 411 U.S. 792 

(1973), or that age was a motivating or substantial factor, as 

required by the mixed-motives analysis set forth in Price 

Waterhouse v. Hopkins, 490 U.S. 228 (1989). On appeal, 

Ford challenges both rulings.

II. 

We begin with the district court’s application of the 

McDonnell Douglas framework, under which the employer, 

once the plaintiff has made out a prima facie case, bears the 

burden of producing a non-discriminatory explanation for the 

challenged personnel action. See McDonnell Douglas, 411 

U.S. at 802–03 (laying out this test); Krodel v. Young, 748 

F.2d 701, 705 (D.C. Cir. 1984) (applying McDonnell Douglas 

to ADEA cases). The plaintiff, however, bears the ultimate 

burden of proving that discriminatory animus was the 

determining or but-for cause of the personnel action. See 

McDonnell Douglas, 411 U.S. at 803–05. The plaintiff may 

satisfy this burden “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.” Forman v. Small, 271 F.3d 285, 292 (D.C. 

Cir. 2001). 

In this case the district court applied McDonnell Douglas

and found that age was not the but-for cause of the Navy’s 
5 

decision to promote Johnson instead of Ford. Ford challenges 

this conclusion and a number of related fact-findings, which 

we review under a “clearly erroneous” standard. Fed. R. Civ. 

P. 52(a)(6). Specifically, we set aside district court factfindings only if we are “left with the definite and firm 

conviction that a mistake has been committed.” United States 

v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). 

Ford first argues that the district court attached 

insufficient significance to evidence of age bias. In support, 

he points to Meng’s comments at staff meetings, to Wallace’s 

testimony about his own experiences, and to the Navy’s socalled Human Digital Dashboard, which monitors the health 

of the Technical Warrant Holder hierarchy by tracking ages of 

warrant holders and their support staffs. Based on this 

evidence, the district court concluded that although the Navy 

was cognizant of its aging workforce, Ford had failed to 

establish a sufficient nexus between the personnel action and 

the Navy’s consideration of age. See Hall v. Giant Food, Inc., 

175 F.3d 1074, 1079–81 (D.C. Cir. 1999) (implementing 

requirement for such a link). As the district court observed, 

there is a difference between macro level institutional 

interests—expressed in the evidence presented by Ford—and 

individual day-to-day decisions. Certainly the former sheds 

light on the latter, but it was for the finder of fact to decide 

whether enough light was shed, and given the circumstantial 

nature of the evidence and our highly deferential standard of 

review, Ford has offered us no basis for setting aside the 

district court’s fact-finding. 

Ford next contends that the district court erred in 

crediting Brahosky’s explanation for the promotion decision. 

Addressing the Technical Warrant Holder hiring process in 

particular, Ford described Brahosky as cagey, pointing out 

that he denied participating in the process but then admitted to 
6 

doing so when shown documentary evidence that he had 

attended the meeting. Ford also argues that given the timing 

of the two hirings, Brahosky’s inconsistency reveals that 

NAVSEA rushed the Technical Warrant Holder hiring 

process to give Johnson, the younger candidate, an advantage 

for the branch head position. But the district court declined to 

make the logical leaps Ford’s argument required, and Ford 

has given us no basis for second-guessing that judgment. 

In a related claim, Ford argues that the district court erred 

in crediting Brahosky’s testimony despite its inconsistencies. 

Brahosky initially told Ford that he failed to get the job 

because of his trouble dealing with bureaucracy and his lack 

of topside design experience, yet on the stand Brahosky 

acknowledged Ford’s topside design experience, pointing 

instead to his lack of topside integration experience, as well 

as to his lack of financial management experience. Although 

this shift indeed qualifies as evidence of pretext, cf. Jones v. 

Barnhart, 349 F.3d 1260, 1266 (10th Cir. 2003), the Navy’s 

explanation—that Brahosky’s interview notes emphasize his 

concerns regarding integration rather than design and that 

Brahosky’s testimony about financial management is “merely 

[an] additional rationale[],” Appellee’s Br. 20—supports the 

district court’s conclusion that the inconsistency was not 

dispositive of pretext. Likewise, the missing recommendation 

memo, which also led the district court to question 

Brahosky’s credibility, was simply one factor of many for 

proof of pretext. Despite the district court’s suspicion about 

Brahosky’s credibility, we find ourselves far from a “definite 

and firm conviction,” U.S. Gypsum Co., 333 U.S. at 395, that 

the district court erred in finding the proffered reasons for the 

employment decision to be credible. 

Next, Ford claims that the district court erred in failing to 

find that he was a significantly better candidate than Johnson. 
7 

Ford points to his own forty years of experience and notes 

that the whole first page of Johnson’s resume deals with just 

two months of work and that the second deals with just two 

years. The Navy counters that, as Ford conceded in testimony 

before the district court, Johnson actually had over twenty 

years of relevant experience. Although the district court may 

not substitute its judgment for that of the employer regarding 

an applicant’s job qualifications, it “could infer discrimination 

if the evidence showed a reasonable employer would have 

found plaintiff significantly better qualified for the job.” 

Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006); cf. 

Cuddy v. Carmen, 762 F.2d 119, 127 (D.C. Cir. 1985) (Cuddy 

II) (finding that statement made by the hiring official that he 

selected one candidate over another because the selectedcandidate was best qualified was “far from overwhelming” 

but was “substantial enough to support the finding” that the 

employer had a legitimate reason for its decision). Here, 

although Ford’s qualifications are impressive and although 

the hiring committee appeared to give great weight to 

Johnson’s two months as interim branch head, the district 

court accepted Brahosky’s testimony that Johnson was 

qualified for the job and that the choice between the 

candidates was difficult. Absent evidence that Ford was 

“significantly better qualified” than Johnson, Holcomb, 433 

F.3d at 897, the district court did not err, much less clearly so, 

by refusing to draw an inference of discrimination. 

Ford also challenges several of the district court’s 

evidentiary rulings. Our review is for abuse of discretion. 

Muldrow v. Re-Direct, Inc., 493 F.3d 160, 166 (D.C. Cir. 

2007) (stating this standard). 

Ford first argues that the district court erred by relying on 

Mann’s testimony that he made his hiring decision in large 

part because of a conversation with Ron Bradley, the branch 
8 

head Johnson was hired to replace. Bradley told Mann that 

Ford had “axes to grind” and was not a team player. Trial Tr. 

at 298 (Dec. 16, 2008) (included at J.A. 330). At trial, Ford’s 

counsel objected on the grounds of hearsay and relevance. 

Here Ford reiterates both points. Ford insists that the 

evidence was irrelevant because the conversation occurred 

after Brahosky had made up his mind. As the Navy points 

out, however, the conversation occurred before Mann told 

Brahosky that he would support the recommendation to hire 

Johnson. While Brahosky claimed not to have been 

influenced by Bradley’s comments or to have received 

feedback on the decision from Mann, Mann testified that he 

signed off on Brahosky’s recommendation. Given that Mann 

was extremely enthusiastic about Ford during the interview 

but then supported the recommendation to hire Johnson, it is 

hardly surprising that the district court found that the phone 

call with Bradley “goes a long way” toward explaining the 

decision. Trial Tr. at 320 (Dec. 16, 2008) (included at J.A. 

352). If Brahosky had sole authority to make the decision, 

Bradley’s comments would be irrelevant, but because Mann 

also weighed in, the factors shaping his decision were fair 

game for the court to rely on. As to Ford’s hearsay argument, 

nowhere in his brief does he explain why the challenged 

statement, which the district court admitted as evidence of 

Mann’s motives rather than for the truth of its content, is 

nonetheless hearsay. 

Finally, Ford challenges the district court’s exclusion of 

Wallace’s age discrimination complaint on the grounds that it 

was irrelevant to Ford’s claim. A retired NAVSEA 

employee, Wallace alleged that NAVSEA forced him out 

because of his age. According to Ford, Wallace’s complaint 

demonstrates the discriminatory atmosphere in which he was 

working and reveals the states of mind of the same set of 

decisionmakers. In order to prevail, however, Ford must 
9 

demonstrate not only that the exclusion amounted to an abuse 

of discretion, but also that it affected his “substantial rights.” 

Whitbeck v. Vital Signs, Inc., 159 F.3d 1369, 1372 (D.C. Cir. 

1998). Given that Wallace’s testimony covered the same 

ground as Wallace’s complaint, Ford has failed to meet this 

demanding burden. 

III. 

We thus turn to Ford’s argument that even if his 

challenges to the district court’s application of the McDonnell 

Douglas test fail, he may nonetheless prevail under Price 

Waterhouse. In that case, which arose under Title VII of the 

Civil Rights Act of 1964, the Supreme Court held that a 

plaintiff can prevail where the employer acted with mixed 

motives. Specifically, “once a plaintiff . . . shows that 

[discriminatory animus] played a motivating part in an 

employment decision, the [employer] may avoid a finding of 

liability only by proving that it would have made the same 

decision even if it had not allowed [discriminatory animus] to 

play such a role.” Price Waterhouse, 490 U.S. at 244–45. 

Acknowledging this alternative approach, the district 

court asked for supplemental briefing on “whether an 

employer will be liable for age discrimination if the 

employment decision is infected in some way by age 

discrimination, even if it may not have been the determinative 

factor.” Trial Tr. at 321 (Dec. 16, 2008) (included at J.A.

353). Although the court was persuaded to apply a mixedmotives analysis, it concluded that Ford had failed to meet his 

threshold burden, observing that “[i]t does not strike me as 

inappropriate, unlawful, or even non-PC for the Navy to take 

a look at the resources it has to deal with technical problems 

and to decide for itself whether those resources are aging, and 

to decide for itself that it needs to replenish those resources 

with younger people. I don’t understand what the problem is 
10 

with that.” Ford v. Winter, No. 08-0507, slip op. at 4 (D.D.C. 

Jan. 15, 2009) (included at J.A. 631). 

Ford argues that the district court “erred in determining 

what kind of showing a plaintiff must make to establish the 

‘motivating factor’ standard under Price Waterhouse.” 

Appellant’s Br. 55. In response, the Secretary argues that in 

Gross v. FBL Financial Services Inc., the Supreme Court 

foreclosed any use of mixed-motives analysis in ADEA cases. 

129 S. Ct. 2343 (2009). Gross arose under ADEA section 

623, which prohibits age discrimination by private employers. 

There the Court held that the burden never shifts to the 

employer. Id. Gross, the Secretary insists, “is equally 

applicable to this case and to the interpretation of § 633a.” 

Appellee’s Br. 8. 

Prior to Gross, the ADEA, which was modeled on Title 

VII, was interpreted essentially in lockstep with that statute. 

E.g., Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 

121 (1985). In Gross, however, the Supreme Court held that 

because the Civil Rights Amendments of 1991 codified a 

mixed-motives analysis for Title VII cases but not for ADEA 

cases, “the Court’s interpretation of the ADEA is not 

governed by Title VII decisions such as . . . Price 

Waterhouse.” Gross, 123 S. Ct. at 2349. As a result, the 

Court explained, its “inquiry . . . must focus on the text of the 

ADEA to decide whether it authorizes a mixed-motives age 

discrimination claim.” Id. at 2350. Examining that text, the 

Court addressed two questions: what standard of causation 

does section 623 impose, and does the statute authorize Price 

Waterhouseesque burden shifting? 

Considering the first question, the Court pointed out that 

section 623 prohibits personnel decisions made “because of” a 

person’s age and explained that the “ordinary meaning of . . . 
11 

‘because of’ age is that age was the ‘reason’ that the employer 

decided to act.” Id. Therefore, the Court held, section 623 

requires that “a plaintiff must prove that age was the ‘but-for’ 

cause of the employer’s adverse decision.” Id. 

Moving on to the second question, the Court explained 

that “[w]here the statutory text is silent on the allocation of 

the burden of persuasion, we begin with the ordinary default 

rule that the plaintiffs bear the risk of failing to prove their 

claims.” Gross, 123 S. Ct. at 2351 (internal citations and 

quotation marks omitted). Nothing in section 623’s language, 

the Court concluded, gave “warrant to depart from the general 

rule in this setting.” Id. 

According to the Secretary, Gross requires the same 

outcome here, i.e., that section 633a creates a but-for standard 

and offers “no warrant” to depart from the “default rule” that 

places the burden of proof on the plaintiff. In support, the 

Secretary emphasizes that the 1991 amendments to Title VII 

no more amended section 633a than they amended section 

623. As a result, the Secretary argues, the Supreme Court’s 

holding in Gross that Price Waterhouse has no applicability 

to section 623 applies with equal force to section 633a. So far 

we agree. But the Secretary goes on to argue that Gross

requires us to hold that section 633a also creates a but-for test. 

On this point, we disagree. 

Beginning with Gross’s first question, we look, as that 

decision directs, to the statute’s language. Section 633a 

provides that “All personnel actions . . . shall be made free 

from any discrimination based on age.” 29 U.S.C. § 633a(a). 

By contrast, section 623, the provision at issue in Gross, 

provides that “it shall be unlawful for an employer [to take a 

personnel action] because of such individual’s age.” 29 

U.S.C. § 623(a). Recognizing the “sharp[]” difference 
12 

between these two provisions, the Supreme Court in GomezPerez v. Potter described section 633a as a “broad, general 

ban on ‘discrimination based on age.’ ” 553 U.S. 474, 486, 

488 (2008) (quoting § 633a). Indeed, as the Court had 

explained in an earlier case, Congress chose not to include the 

federal government in the ADEA’s definition of employer and 

instead “deliberately prescribed a distinct statutory scheme 

applicable only to the federal sector.” Lehman v. Nakshian, 

453 U.S. 156, 166 (1981) (citing S. 3318, 92d Cong. (1972), a 

bill introduced prior to the addition of section 633a that would 

have added the federal government to the definition of 

employer). For our part, we observed in Forman v. Small that 

“Congress used sweeping language when it . . . extended the 

ADEA to cover federal agency employees.” 271 F.3d 285, 

296 (D.C. Cir. 2001). To be sure, in Cuddy v. Carmen 

(Cuddy I), this court did suggest, as the Secretary emphasizes, 

that the standard for proving violations under the two 

provisions is the same, but that statement related to the 

application of the McDonnell Douglas test, which operates 

identically under both provisions. 694 F.2d 853, 856 (D.C. 

Cir. 1982). In any event, the sentence in Cuddy I that the 

Secretary cites is dictum, and the case predates both Forman 

and Gomez-Perez. 

The Secretary nonetheless argues that section 633a’s 

language is sufficiently similar to section 623’s that it too 

should be interpreted as requiring a but-for test. In support, 

the Secretary relies on section 633a’s use of the phrase “based 

on,” pointing out that the Supreme Court has equated it with 

“because of” or “but for.” Safeco Ins. Co. of Amer. v. Burr, 

551 U.S. 47, 63–64 (2007). This argument ignores the very 

different functions the parallel phrases—“because of” and 

“based on”—play in the two provisions. In section 623, 

“because of” modifies “to fail or refuse to hire . . . .” By 

contrast, in section 633a “based on” modifies 
13 

“discrimination.” So while a section 623 plaintiff must, as 

Gross holds, show that the challenged personnel action was 

taken because of age, a section 633a plaintiff must show that 

the personnel action involved “any discrimination based on 

age.” 

Indeed, it is section 633a’s more “sweeping” language 

that requires us to interpret it differently than section 623. 

Were the Secretary correct—that section 633a requires a butfor test—then a plaintiff who fails to demonstrate that age was 

a determining factor but nonetheless shows that it was one of 

several factors would lose even though the challenged 

personnel action in that scenario was not “free from any 

discrimination.” Consider a case where the evidence clearly 

establishes that in rejecting an applicant for a job, the federal 

employer relied both on the applicant’s age and on his 

qualifications relative to other applicants. If that applicant is 

unable to show that age was the but-for cause, he would lose 

despite the fact that the personnel action was obviously not 

“free from any discrimination.” Limiting plaintiffs to proving 

liability only by establishing that consideration of age was the 

but-for cause of the personnel action, as the Secretary urges, 

would thus divorce the phrase “free from any discrimination” 

from its plain meaning. To be faithful to that “sweeping” 

language, we hold that plaintiffs may also prevail by proving 

that age was a factor in the employer’s decision. Our 

concurring colleague is “reluctant to agree that the Congress 

intended, simply by dint of section 633a’s different phrasing, 

to set up a legal framework for the federal government at odds 

with that for a private employer.” Concurring Op. at 1. But it 

is through the “dint of . . . phrasing” that Congress speaks, 

and where it uses different language in different provisions of 

the same statute, we must give effect to those differences. 

See, e.g., Russello v. United States, 464 U.S. 16, 23 (1983) 

(“We refrain from concluding here that the differing language 
14 

in the two subsections has the same meaning in each. We 

would not presume to ascribe this difference to a simple 

mistake in draftsmanship.”). 

Moreover, courts must look not for a particular quantum 

of influence, as the district court appeared to do through use 

of the word “substantial,” but for the existence of influence at 

all. Why? Because any amount of discrimination tainting a 

personnel action, even if not substantial, means that the action 

was not “free from any discrimination based on age.” “Any,” 

after all, means any. See, e.g., United States v. Gonzales, 520 

U.S. 1, 5 (1997) (explaining that “any” has “expansive 

meaning” and holding that because “Congress did not add any 

language limiting the breadth of that word” the court could 

not impose a limit). That said, we emphasize that the 

consideration of age must have some connection to the 

challenged personnel action. See § 633a(a) (“All personnel 

actions . . . shall be made free from any discrimination based 

on age.”). In other words, we agree with the district court and 

with our concurring colleague that nothing in section 633a 

prohibits the Secretary from considering age when evaluating 

the overall health of the workforce, so long as that 

consideration does not bleed into particular personnel 

decisions. 

This brings us to Gross’s second question—does section 

633a require burden shifting? The parties debate this question 

extensively, but the answer is easy. With respect to the 

“allocation of the burden of persuasion,” Gross, 129 S. Ct. at 

2351 (internal quotation marks omitted), section 633a is just 

as silent as is section 623. And as in Gross, we see no 

“warrant to depart” from “the ordinary default rule that 

plaintiffs bear the risk of failing to prove their claims.” Id. 

(internal quotation marks omitted). The plaintiff thus has the 
15 

burden to show that age was a factor in the challenged 

personnel action. 

Ford insists that the district court actually did find that 

age was a factor in the Navy’s decision to promote Johnson 

instead of him. Although some of the district court’s 

statements could be so read, the court also said that age “may” 

have been a factor. Whatever the district court meant, we are 

unwilling to conclude that it made definitive findings pursuant 

to a legal standard not articulated until today. We shall 

therefore remand to give Ford an opportunity to show by a 

preponderance of the evidence that age was a factor in the 

Navy’s decision to deny him the promotion. 

Before doing so, however, we must resolve an additional 

issue that arises from the fact that Ford could end up with a 

windfall if the Navy were required to provide instatement and 

backpay based solely on a finding that age played some role 

in the promotion decision. As the Supreme Court explained 

in a case involving retaliation for protected First Amendment 

activity, “[a] rule of causation which focuses solely on 

whether protected conduct played a part . . . in a decision not 

to rehire, could place an employee in a better position as a 

result of the exercise of constitutionally protected conduct 

than he would have occupied had he done nothing.” Mt. 

Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 

274, 285 (1977). For this reason, we hold that although Ford 

may establish section 633a liability by proving that age was a 

factor in the Navy’s decision, thus entitling him to declaratory 

and possibly injunctive relief, it is insufficient to merit 

instatement and backpay. For those types of remedies, a butfor standard of causation is necessary because, after all, if the 

Navy would have made the same decision absent 

consideration of age, Ford would have no right to the job. 
16 

So, under Gross, who bears this additional burden of 

proof? On the one hand, because section 633a is silent on the 

allocation of the burden of proof, perhaps Ford must show, in 

order to get instatement and backpay, that the Navy would 

have given him the promotion but for its consideration of age. 

On the other hand, because the Navy is in the best position to 

establish its own motives, and because Congress imposed a 

more rigorous anti-discrimination requirement on the federal 

government than it did on private employers, perhaps there is 

“warrant to depart” from the “default rule” and require the 

Navy to prove it would have made the same decision anyway. 

This issue, however, is entirely unbriefed. Moreover, 

whether the issue even needs to be addressed in this case turns 

on whether Ford is able on remand to show that age was a 

factor in the denial of his promotion. Having flagged the 

issue, we thus leave its resolution for another day. 

IV. 

To sum up, plaintiffs can establish liability under section 

633a in one of two ways. First, they can make use of the 

McDonnell Douglas evidentiary framework to establish that 

age was the but-for cause of the challenged personnel action. 

As we explain above, Ford has given us no basis for 

questioning the district court’s conclusion that he failed to do 

so here. Second, plaintiffs may establish liability by showing 

that age was a factor in the challenged personnel action. 

Given that the district court in this case never considered that 

precise question, we reverse and remand for further 

proceedings consistent with this opinion. 

So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring

in the judgment:

Although I agree with my colleagues that remand appears

to be called for, I write separately to highlight two concerns. 

First, in my view, nothing we write today should be

interpreted to lessen an ADEA plaintiff’s burden to show that

age discrimination affected “the particular employment

decision” challenged and not “the mere existence of other,

potentiallyunrelated, forms of discrimination in the workplace.”

Thomas v. Nat’l Football League Players Ass’n, 131 F.3d 198,

204 (D.C. Cir. 1997) (emphasis omitted). Here, it is far from

clear that Ford has made the requisite showing of causality.

While the district court found that age “tinged” the hiring

process, Ford v. Winter, No. 08-0507, slip op. at 4 (D.D.C. Jan.

15, 2009), it also rejected any connection between the Navy’s

institutional concern with age and its particular decision not to

select Ford for the branch head position, concluding: “The

problem would be, of course, if in the individual case somebody

looked at somebody else and said, well, he doesn’t fit the

profile; we’ve got to have a younger guy here. I didn’t find any

evidence in this case that that was actually done.” Trial Tr. at

323 (Dec. 16, 2008). 

Second, I am reluctant to agree that the Congress intended,

simply by dint of section 633a’s different phrasing, to set up a

legal framework for the federal government so totally at odds

with that for a private employer and, if so, why. Although we *

The majority invokes the old chestnut that “where [the Congress]

*

uses different language in different provisions of the same statute, we

must give effect to those differences.” Maj. Op. at 13-14. I of course

agree with that familiar rule of statutory construction but where the

statutory language appears within a complex regulatory scheme that

has been the subject of varying judicial interpretation, see, e.g., Aliotta

v. Bair, 614 F.3d 556, 561 (D.C. Cir. 2010) (section 633a requires that

age have “determinative influence” (quoting Reeves v. Sanderson
2

once described section 633a as “sweeping,” our characterization

should be understood in the context of the question then before

us: whether section 633a prohibited age-based retaliation

notwithstanding the absence of a specific provision addressing

retaliation. Forman v. Small, 271 F.3d 285, 295-99 (D.C. Cir.

2001). As the U.S. Supreme Court explained in Gomez-Perez v.

Potter, section 633a is sweeping only in the sense that it

“contains a broad prohibition of ‘discrimination,’ rather than a

list of specific prohibited practices.” 553 U.S. 474, 487 (2008).

Nevertheless, in declaring that section 633a prohibits age

discrimination across a broad swath of personnel actions, neither

we nor the Supreme Court implied that section 633a requires a

lesser quantum of proof than does section 623. 

Nor do Ishare my colleagues’ confidence that Gross v. FBL

Financial Services, Inc. unambiguously “directs” us in our

interpretation of section 633a today. Maj. Op. at 11. The Court

in Gross compares the particular text of section 623 of the

ADEA with its Title VII analogue and, plainly, does not touch

on section 633a. 129 S. Ct. 2343, 2348-51 (2009). Given its flat

declaration that the mixed-motives theory “is never proper in an

ADEA case” and its criticism of the burden-shifting framework

set forth in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989),

however, it is difficult for me to conclude the Court would

endorse the reading we announce today. Id. at 2346, 2351-52. 

Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)); Forman v. Small,

271 F.3d 285, 292, 294 (D.C. Cir. 2001) (“a determining factor” or “a

substantial factor”); Cuddy v. Carmen, 694 F.2d 853, 856-57 (D.C.

Cir. 1982) (Cuddy I) (“a determining factor”), we should be hesitant

to read textual differences reflexively to signify such a departure from

our earlier understanding.