Feuer v. Lauren M. McFerran

Background

Elias Feuer, proceeding without a lawyer, sued Lauren M. McFerran under the Age Discrimination in Employment Act of 1967 (ADEA). Feuer alleged that he was not selected for an administrative law judge position at the National Labor Relations Board in 2016 because of his age and that the agency retaliated against him after he complained about age discrimination.

Feuer had worked as an administrative law judge since 2012 and had previously worked for the National Labor Relations Board for more than 32 years. He was 63 when he applied for one of five administrative law judge positions in the agency’s New York and Washington, D.C. offices. The hiring committee placed Feuer among seven top-tier candidates, but the Chief Administrative Law Judge ranked him last among those candidates, and the agency hired five other applicants.

Feuer filed an age-discrimination complaint with the agency’s equal-employment office in December 2016. The office described that complaint as alleging only discrimination based on age in the failure to select him. Feuer did not correct that description. The administrative proceedings resulted in decisions rejecting his age-discrimination claim, and Feuer later filed this federal case asserting both age discrimination and retaliation.

Retaliation claim

The court granted judgment for McFerran on the retaliation claim without reaching its merits. Under the ADEA, a federal employee generally must first present the claim through the required administrative process before bringing it in federal court. The court found that Feuer’s administrative complaint did not mention retaliation and that the claim was not sufficiently related to his age-discrimination claim to satisfy the exception for claims that are closely connected to the filed administrative charge.

The court also noted that the administrative office understood Feuer’s complaint to involve only age discrimination, warned him that his retaliation claim would not be heard in that proceeding, and advised him to pursue a separate investigation if he wanted to raise retaliation. Because the retaliation claim was not exhausted and was not reasonably related to the administrative claim, the court held that it lacked jurisdiction over that claim.

Age-discrimination claim

The court applied the three-step framework used for ADEA discrimination claims. It assumed, without deciding, that Feuer established the initial elements of an age-discrimination claim: he was over 40, qualified for the position, suffered an adverse employment action when he was not selected, and the circumstances could support an inference of discrimination.

The court found that McFerran presented legitimate, nondiscriminatory reasons for Feuer’s nonselection. The record included concerns about Feuer’s writing samples, the limited nature of some of his recent experience, his judicial temperament, and his interpersonal skills. Several people ranked Feuer last among candidates interested in the New York office, and the Chief Administrative Law Judge ranked him last among all seven top-tier candidates.

At the final stage, Feuer had to produce evidence that age was the decisive cause of his nonselection and that the stated reasons were a pretext, meaning a false explanation used to conceal discrimination. The court concluded that he did not do so. It rejected his arguments that he was much better qualified than the selected candidates and that one selected candidate did not satisfy the vacancy announcement’s stated experience requirement. The court also emphasized that the record contained no evidence of age-related comments during the hiring process. It concluded that a jury could find age discrimination only through speculation.

Disposition

Judge Willis denied Feuer’s motion for summary judgment in full and granted McFerran’s motion for summary judgment in full. The court dismissed the age-discrimination claim with prejudice and held that it lacked jurisdiction over the retaliation claim. The Clerk of Court was directed to close the listed motions.