 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 24, 2013                  Decided June 3, 2014

                         No. 12-5070

                    THEODORE R. WILSON,
                        APPELLANT

                               v.

    TIMOTHY C. COX, CHIEF OPERATING OFFICER, ARMED
     FORCES RETIREMENT HOME AND UNITED STATES OF
                       AMERICA,
                      APPELLEES


         Appeal from the United States District Court
                 for the District of Columbia
                     (No. 1:06-cv-01585)


    Eric D. McArthur, appointed by the court, argued the cause
as amicus curiae in support of appellant. With him on the briefs
was Jeffrey T. Green, appointed by the court.

    Sobia Haque, Special Assistant U.S. Attorney, argued the
cause for appellees. With her on the brief were Ronald C.
Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney. Jane M. Lyons, Assistant U.S. Attorney, entered
an appearance.

   Before: KAVANAUGH and SRINIVASAN, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
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    Opinion for the Court filed by Circuit Judge SRINIVASAN.

     SRINIVASAN, Circuit Judge: Theodore Wilson, a former
employee of the Armed Forces Retirement Home-Washington,
alleges that his termination from his position as a security guard
was motivated by discrimination based on age in violation of the
Age Discrimination in Employment Act. The district court,
determining that no reasonable factfinder could conclude that
Wilson was discharged because of his age, granted summary
judgment in favor of the defendants. Wilson, however,
introduced evidence of two statements made by the person who
effected his termination, both of which are indicative of a
discriminatory motive. Because those statements, if proven to
have been made, would permit a reasonable factfinder to
conclude that age-based discrimination led to Wilson’s ouster,
we reverse and remand for trial proceedings.
                                I.
     We consider the facts in the light most favorable to Wilson,
the party against whom summary judgment was granted. See
Hampton v. Vilsack, 685 F.3d 1096, 1099 (D.C. Cir. 2012).
Wilson retired from the military in 1974 after having
accumulated more than twenty-three years of service in the Air
Force and Army. In May 2001, when Wilson was sixty-nine
years old, the Armed Forces Retirement Home-Washington (the
Home) hired him as a security guard. The Home is one of two
facilities operated by the Armed Forces Retirement Home
(AFRH), an executive agency. See 24 U.S.C. § 411(a). The
other AFRH facility is located in Gulfport, Mississippi. Both
facilities provide “residences and related services for certain
retired and former members of the Armed Forces.” Id. § 411(b).
     When he began his work as a security guard at the Home,
Wilson did not reside there. In December 2002, Wilson became
a resident. At the time, the Home operated a resident employee
                                3

program under which residents could work at the Home in
various positions, including in security and health care services.
Wilson decided to become a resident in part because he could
continue his employment at the Home as a security guard. The
Home’s chief of security described Wilson as a “very good
employee.”
     In 2002, Timothy Cox became the AFRH’s Chief Operating
Officer. Cox decided to replace the resident employee program
with a resident stipend program. Under the stipend program,
residents could earn no more than $120 per month for twelve
hours of work in a “supportive role.” Any additional work
would be considered an uncompensated donation to the Home.
In January 2004, as a result of the dissolution of the resident
employee program, the Home terminated Wilson’s employment.
Wilson was then seventy-one years of age.
     Cox met with the Home’s residents about his decision to
abolish the resident employee program. In the meeting, Cox
told the residents, “you didn’t come here to work, you came here
to retire.” Cox also discussed his decision in a telephone
conversation with Wilson’s Equal Employment Opportunity
(EEO) counselor. According to the counselor, “[a]nother issue
Mr. [C]ox had with the older guards at Armed Forces
Retirement Home, ‘was that they were not doing their jobs
properly, as from time to time they would be found asleep,
which was not safe for a government agency in DC, what with
all the threats since 9/11.’” The counselor attributed the
language within single quotation marks directly to Cox. Cox
later testified that he decided to eliminate the resident employee
program in order to save costs, assure a better-trained work
force, and achieve consistency with AFRH’s Gulfport facility,
which had no resident employee program.
   After Wilson’s termination, he contacted his EEO
counselor, but the counselor was unable to resolve the dispute
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informally. In June 2004, Wilson filed a formal EEO complaint.
The Equal Employment Opportunity Commission found that
there had been no discrimination, and the Merit Systems
Protection Board denied Wilson relief.
     In September 2006, Wilson filed this action in the district
court against Cox and the United States, alleging, as is relevant
here, that the termination of his employment violated the Age
Discrimination in Employment Act (ADEA).                  Wilson
subsequently sought leave to amend his complaint to allege that
his termination violated his due process rights.
     On December 5, 2011, the district court granted summary
judgment in favor of the defendants. Wilson v. Cox, 828 F.
Supp. 2d 20, 38 (D.D.C. 2011). The defendants argued that the
decision to abolish the resident employee program and terminate
Wilson’s employment did not stem from any discriminatory
motive, but instead aimed to save money, to ameliorate concerns
about the capabilities of the Home’s security staff, and to attain
operational consistency with the Gulfport facility. The district
court concluded that Wilson failed to demonstrate that those
legitimate, nondiscriminatory rationales were a pretext for
discrimination. See id. at 30-33. The court also addressed
Cox’s statements that the Home’s residents were “here to retire”
rather than to work and that he had concerns about the older
security guards falling asleep on the job. In the court’s view, the
former statement “cannot be taken as evidence of an
impermissible assumption based on [the guards’] ages,” id. at
34, and the latter statement exhibited concerns about
performance rather than age, id. at 33. The court also denied
Wilson’s motion to amend his complaint to allege a due process
violation, holding that any amendment would be futile because
Wilson lacked a protected property interest in his continued
employment. Id. at 35-36. At the time that the district court
granted summary judgment to the defendants, Wilson had
conducted no discovery.
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    Wilson now appeals the district court’s grant of summary
judgment on his ADEA claim. In addition, Wilson contends that
the district court erred in granting summary judgment before he
had any opportunity to conduct discovery, and in denying him
leave to amend his complaint to add a due process claim.
                                II.
     The ADEA requires that “[a]ll personnel actions affecting
employees . . . who are at least 40 years of age . . . in executive
agencies . . . shall be made free from any discrimination based
on age.” 29 U.S.C. § 633a(a). We generally apply the same
approach in ADEA cases under that provision as we do in Title
VII cases. See Barnett v. PA Consulting Grp., Inc., 715 F.3d
354, 358 (D.C. Cir. 2013); Hall v. Giant Food, Inc., 175 F.3d
1074, 1077 (D.C. Cir. 1999); see also Ford v. Mabus, 629 F.3d
198, 203-07 (D.C. Cir. 2010). At the summary judgment stage,
the “operative question” is whether “the employee produced
sufficient evidence for a reasonable jury to find that . . . the
employer intentionally discriminated against the employee on
the basis of” age. Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 576
(D.C. Cir. 2013) (per curiam) (ellipsis in original) (quoting
Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494
(D.C. Cir. 2008)); see Barnett, 715 F.3d at 358. If “the plaintiff
offers direct evidence of discriminatory intent, that evidence will
‘generally entitle a plaintiff to a . . . trial.’” Ayissi-Etoh, 712
F.3d at 576 (quoting Vatel v. Alliance of Auto. Mfrs., 627 F.3d
1245, 1247 (D.C. Cir. 2011)). A “statement that itself shows . . .
bias in the employment decision” qualifies as direct evidence.
Id. (quoting Vatel, 627 F.3d at 1247) (brackets omitted).
    Wilson has produced two statements that constitute direct
evidence of age discrimination, entitling him to proceed to trial.
Both statements came from Cox, who made the decision to
terminate the resident employee program, causing Wilson’s
discharge. In the first statement, Cox told the Home’s residents
                                6

that “you didn’t come here to work, you came here to retire.” In
the second statement, Cox explained to the EEO counselor that
he had concerns about the older security guards because “they
were not doing their jobs properly, as from time to time they
would be found asleep, which was not safe for a government
agency in DC, what with all the threats since 9/11.”
     A reasonable factfinder could conclude from those
statements that a discriminatory intent motivated the decision to
abolish the resident employee program and terminate Wilson’s
employment. Both statements indicate the sort of “inaccurate
and stigmatizing stereotypes” that led Congress to enact the
ADEA. Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993).
In particular, as the Supreme Court has explained, it “is the very
essence of age discrimination for an older employee to be fired
because the employer believes that productivity and competence
decline with old age.” Id.
     Here, a reasonable factfinder could conclude that Cox’s
statement that the Home’s residents were “here to retire,” rather
than “to work,” exhibits just such a discriminatory stereotype.
Interpreted in the light most favorable to Wilson, the statement
is indicative of an inaccurate and discriminatory assumption that
older residents should not want to work or would prefer not to
work. In Wilson’s case, in fact, the opposite was true: Wilson
became a resident of the Home in part precisely because he
could continue working there as a security guard. Wilson was
there to work, not to retire.
     The defendants contend that Cox’s statement in fact did not
exhibit age-based discrimination because it focused on
retirement, not age. The defendants are fully free to advance
that argument at trial; but at the summary judgment stage, an
alternative interpretation of that kind cannot overcome the need
to draw inferences in the non-moving party’s favor. See Pardo-
Kronemann v. Donovan, 601 F.3d 599, 604-06 (D.C. Cir. 2010).
                                7

We must interpret the statement in the light most favorable to
Wilson, and viewed in that light, the statement manifests
discriminatory stereotyping. Moreover, when Cox sought to
explain his statement to Wilson’s EEO counselor, Cox stated
that the AFRH “allowed the residents to work to make them feel
productive, not because they were entitled to the positions.”
That statement, viewed most favorably to Wilson, tends to
reinforce the stereotype that older workers fall short in
productivity and thus should have no entitlement to
employment. The Home, that is, sought to make the older
employees “feel productive” notwithstanding that they were in
fact unproductive. A reasonable factfinder could conclude that
Cox’s statements exhibit a discriminatory intent.
     The same is true of Cox’s statement to the EEO counselor
that one of his problems “with the older guards at Armed Forces
Retirement Home, ‘was that they were not doing their jobs
properly, as from time to time they would be found asleep.’”
While Cox in that statement expressed a general concern about
a perceived tendency of older guards to fall asleep, he testified
that he had heard about only one such incident. Additionally,
the chief of resident services testified that he had never heard
any reports about any guard sleeping on the job. Even if Cox in
fact knew of one instance in which a guard fell asleep on the job,
a statement indicating a generalized concern about older guards
as a group, based on one incident alone, is suggestive of
impermissible, inaccurate stereotyping. A reasonable factfinder
could conclude that Cox attributed sleepiness to all older guards
as a class and terminated the resident employee program on that
discriminatory basis.
     Because Cox’s statements constitute direct evidence of
discrimination entitling Wilson to proceed to trial, we need not
review the district court’s conclusion that the defendants’
proffered, nondiscriminatory rationales for Wilson’s termination
were non-pretextual. At trial, the parties will have a fresh
                               8

opportunity to present evidence about the motivation for
abolishing the resident employee program and terminating
Wilson’s employment, and the factfinder will assess and
determine, in light of all of that evidence, whether the decision
stemmed from a discriminatory motive. We also have no
occasion to address Wilson’s contention that the district court
erred in granting summary judgment before affording him any
discovery: the parties presumably will have the opportunity to
conduct discovery before trial.
     Finally, Wilson challenges the district court’s denial of
leave to amend his complaint to add a due process claim. To
establish that his termination violated due process, Wilson must
demonstrate that he possessed a property interest in continued
employment. See, e.g., Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532, 538 (1985). In the district court, Wilson based his
claim of a protected property interest on the Home’s EEO
policy. The district court rejected that argument and denied him
leave to amend his complaint on grounds of futility. On appeal,
Wilson no longer relies on the Home’s EEO policy. Instead, he
presents a distinct argument of a protected property interest
based on his status as a preference-eligible veteran. Although
we ordinarily decline to hear arguments raised for the first time
on appeal, see District of Columbia v. Air Fla., Inc., 750 F.2d
1077, 1084-85 (D.C. Cir. 1984), the defendants do not argue that
Wilson forfeited his new due process argument, see Catholic
Health Initiatives Iowa Corp. v. Sebelius, 718 F.3d 914, 922 n.6
(D.C. Cir. 2013) (“[W]e construe [the party] as having itself
waived any waiver argument.”). Rather than consider and
resolve Wilson’s new due process argument in the first instance
on appeal, we leave it to the district court to do so on remand.
                              9

                        * * * * *
     We reverse the district court’s grant of summary judgment
to the defendants on Wilson’s ADEA claim and remand for
proceedings consistent with this opinion.
                                                  So ordered.
