271 F.3d 285 (D.C. Cir. 2001)
Paul Forman, Appellantv.Lawrence M. Small, Secretary, Smithsonian Institution, Appellee
No. 00-5256
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 7, 2001Decided November 16, 2001

[Copyrighted Material Omitted]
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 Counsel, Smithsonian Institution.
Before:  Henderson, Randolph and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge:


1
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.  § 633a (1994 & Supp. V 1999).  He contends that he established 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.

2
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.


3
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  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.


4
In January 1990, Dr. Forman proposed that the one chapter he had drafted for his book on atomic clocks about  Charles Townes and the maser2 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 performance appraisal (evaluating only his performance from September 1, 1989 to May 1990 for the evaluation period of  September 1, 1989 to August 31, 1990), however, was "unacceptable" as to the "single critical element" of his assignment,  namely to draft a "book-length manuscript."  An accompanying 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 principal 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.


5
Robert McCormick Adams was the Secretary when Dr.  Forman was considered for promotion in 1991.  During this  period  there were six principal features of the promotion  process for all curators at the National Museum of American  History.  The Professional Accomplishment Evaluation Committee, 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 performance appraisals as well as the opinions of the curator's  supervisors.3  The Director made an advisory recommendation to the Secretary.  The Secretary also customarily received advisory recommendations from his Assistant Secretaries before making his final decision.  Thus, the Secretary  had the final authority to make decisions regarding promotions.


6
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 forwarded Dr. Forman's promotion package to the Assistant  Secretary for Research.  The two Assistant Secretaries, Robert 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. Forman'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 "or any other work of comparable scope."  Secretary Adams  decided that consideration of a promotion should be postponed 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."


7
During the Secretary's discussion of Dr. Forman's promotion 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";  Secretary 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 Opportunity Commission, which was still pending when he was considered for promotion in 1995.


8
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 theirplace 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 responsibility for promotions of scholarly staff to the Directors but  with oversight responsibility in the Provost.  Generally, the  Provost could consider promotions only of persons recommended 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 service" 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.


9
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 scholarship, 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 opposition to the new strategic priorities, and Dr. Crew explained  that he wanted to determine whether Dr. Forman's performance 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.


10
Dr. Forman submitted a complaint to Acting Provost Hoffman, 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 Hoffman 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 importance to the Smithsonian of indicating that it "prize[s] scholarship, 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 memorandum, 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 recommendation," and he did not forward Dr. Forman's complaint to the  Secretary, notwithstanding the Secretary's statement in October 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.


11
After exhausting his administrative remedies, see 29 C.F.R.  § 1614.201(c), Dr. Forman filed a lawsuit against the Smithsonian under the ADEA, 29 U.S.C. § 633a, for age discrimination 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," grantedsummary judgment to the  Smithsonian on Dr. Forman's age discrimination and retaliation 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, referencing Dr. Crew's memorandum explaining why he was postponing 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.

12
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 extraordinarily accomplished in his field, the peer committee recommended 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. Forman's promotion to the Secretary for decision because Forman 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.


13
Our review of the grant of summary judgment is de novo. See Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).  Accordingly, 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.


14
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. § 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 burden 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.


15
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.

16
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 promotions 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 statistically 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.


17
In any event, Dr. Forman introduced other evidence that  age was a primary consideration in the denial of his promotion in 1991 to meet his prima facie burden, which is not  onerous.  See Tex. Dep't of Cmty. Affairs v. Burdine, 450U.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. Forman's age.  According to Assistant Secretary Hoffman, comments 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 Markham, 219 F.3d 649 (7th Cir. 2000), when decision makers, or  those who have input into the decision, express such discriminatory 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.  Moreover, the employer's correlation of old age with declining  productivity represents the very essence of age discrimination.  See Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993);  cf. Price Waterhouse v. Hopkins, 490 U.S. 228, 251  (1989).


18
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 booklength manuscript on atomic clocks "or any other work of  comparable scope."  Because Dr. Forman has no direct evidence of age discrimination, the dispositive question is whether 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 requirement for promotion.  This is insufficient evidence to show  pretext.


19
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 performance 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 manuscript 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 agebased comments at the discussion of his promotion, the  Smithsonian produced evidence of a nondiscriminatory reason  fordenying him a noncompetitive promotion in 1991.


20
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 highlights 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:


21
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 period of time, and that you were expected, during that twoyear period of time, to produce publishable-quality written material. * * *  You may disagree with their evaluation of what you were doing that period of time, but that's not age discrimination. B.


22
Dr. Forman's 1995 promotion age-discrimination claim is  supported by neither the statistical evidence nor the agebased remarks by decision makers that he presented in  connection with the denial of his 1991 promotion.  The statistical 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 postpone his decision on Dr. Forman's promotion until his performance 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 maintains 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 questioned 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.


23
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.

24
We conclude, however, that Dr. Forman produced sufficient  evidence to establish aprima facie case of retaliation when  Acting Provost Hoffman failed to forward Dr. Forman's  complaint materials in response to Secretary Heyman's request for advice on Dr. Forman's 1995 promotion.  In contrast, 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.

25
For purposes of the ADEA, the Smithsonian is included in  the section addressing age discrimination in federal agency  employment.  See 29 U.S.C. § 633a(a) (Supp. V 1999).  Although the court has considered whether the Smithsonian is a  federal agency under certain statutes, see Expeditions Unlimited 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.


26
Several elements of the Smithsonian's congressional design  would appear to suggest that it does have sovereign immunity.  First, it operates under a federal charter, 20 U.S.C. § 41,  and its Board of Regents is composed of or selected by  federal officials, id. §§ 42-43.  Second, it is authorized to  receive appropriations from Congress.  See id. §§ 53a, 54; General Hearings Before the Subcommittee on Library and  Memorials, 91st Cong. 323 (1970), cited in Expeditions Unlimited 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. § 53, and disbursements for payments of debt are  submitted to the Treasury, id. § 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. § 55, the Smithsonian's structure and federal funding would suggest that Congress's interest in safeguarding the public fisc from money  judgments is no less significant with respect to the Smithsonian 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 § 633a, we assume that the Smithsonian has sovereign immunity.


27
Consequently, before addressing the merits of Dr. Forman's retaliation claims, we must first determine whether Dr.  Forman, as an employee of the Smithsonian, may bring a  retaliation claim under § 633a of the ADEA.  Although the  Smithsonian, which is represented by the United States Attorney, does not question whether § 633a prohibits retaliation, 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).


28
"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 § 633a.


29
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. §§ 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 § 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. § 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 § 623(d), the ADEA provision governing private,  state, and local employers, however, § 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.  § 623(d) (1994).  Moreover, the prohibition of retaliation contained in § 623(d) does not apply to federal employees not  only because the ADEA defines "employer" as used in  § 623(d) to exclude the federal government, see 29 U.S.C.  § 630(b), but also because § 633a(f) specifically provides that  § 633a should not be subject to the provisions of § 623.


30
These statutory differences between the federal and private  sectors are not dispositive, however, as some courts have  concluded in holding that § 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 § 633a(a)  alone that determines the scope of that provision.  Unlike  § 623, which is narrowly drawn and sets forth specific prohibited forms of age discrimination in private employment, Congress 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. § 633a(a) (emphasis added).  In enacting § 633a(a), Congress  used unqualified language that encompasses a claim of retaliation because "analytically a reprisal for an age discrimination 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 "retaliation" explicitly does not undermine itsintended 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 discrimination 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 § 633a suggests that Congress intended the federal workplace 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 § 633a(a) was to "remove discriminatory barriers against employment of older workers in government 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).


31
This focus on the sweeping language used by Congress is  the same reasoning that the court relied upon in holding that  § 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 § 2000e-16 differs from  §§ 2000e-3 and 2000e-4, which are narrowly drawn and  prohibit only specific forms of discrimination, because  § 2000e-16 is drafted broadly to prohibit "any discrimination  based on race, color, religion, sex, or national origin."  42  U.S.C. § 2000e-16;  see Porter, 639 F.2d at 277-78.  The  court reasoned that "the reasonable conclusion, therefore, is  that by drafting [§ 2000e-16] to prohibit 'any discrimination,'  Congress intended to bar the federal government from engaging in all those forms of discrimination identified in  [§§ 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 Supreme Court has noted that § 633a, as finally enacted, is  "patterned directly after [§ 2000e-16] of the Civil Rights Act  of 1964, which extend Title VII protections to federal employees."  Lehman, 453 U.S. at 167 n.15.  Notably, the statutory  pattern here favors an unqualified interpretation of Congressional intent, unlike the statutory pattern that confronted the  Court in Lehman.  See id. at 161.


32
The fact that, unlike § 2000e-16 of Title VII, § 633a of the  ADEA contains an exclusivity provision does not defeat our  analysis.  The exclusivity provision provides that federal personnel actions under § 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. § 633a(f), and makes § 633a  "self-contained and unaffected by other sections."  Lehman,  453 U.S. at 168.  Courts relying on § 633a(f) in concluding  that § 633a does not allow a claim of retaliation, see Tomasello, 920 F. Supp. at 6;  Koslow, 919 F. Supp. at 19-20, point to  the Supreme Court's language in Lehman that § 633a(f)  means that "federal personnel actions covered by [§ 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 provisions from elsewhere in the ADEA."  Koslow, 919 F. Supp. at  19-20;  Tomasello, 920 F. Supp. at 6.  The reasoning fails for  two reasons.


33
First, nothing in the legislative history of § 633a(f), which  was added to § 633a in 1978, see Pub. L. No. 95-256, 92 Stat.  191 (1978), suggests that it was intended to limit the broad  coverage of § 633a that was originally intended.  As noted,  the 1978 amendments imposed more stringent requirements  upon the federal sector than the private sector.


34
Second, our analysis is consistent both with § 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 § 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 § 633a had a right to a jury trial.  Id. at 157.  The Court  did not hold, as Koslow implies, that § 633a(f) precludes  courts from interpreting § 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 § 633a, asking first whether it contained an  express provision of a jury trial.  Working against the background principle that "[w]hen Congress has waived the sovereign 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 Congressional intent to provide federal employees a jury trial because  there was no express provision for a jury trial in § 633a,  whereas Congress had expressly provided for one for private  employees.  Id. at 163.  In further support of its conclusion,  the Court pointed to § 633a(f), noting that, in light of Congress's emphasis that § 633a was self-contained, Congress would not have overlooked the need to provide federal employees a jury trial if it had so intended.  Id. at 168.


35
In the end, then, § 633a(f) presents somewhat of a red  herring.  We do not incorporate the provisions of § 623(d)  into § 633a in concluding that § 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 § 633a(a) in  holding that a work place cannot be free from any age  discrimination if an employer can take an adverse employment action against its employees because the employee has  brought an age discrimination claim against the employer. This is age discrimination, which § 633a(a) by its own terms  alone prohibits.


36
For these reasons, we hold that § 633a waives sovereign  immunity as to claims of retaliation.  We proceed, therefore,  to address the merits of Dr. Forman's claims.

B.

37
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.


38
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


39
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 motive.  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. Forman 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.


40
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.  § 626(b);  id. § 216(b);  Trans World Airlines, Inc. v. Thurston, 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 nondiscriminatory reason for taking an adverse action against an  employee who has engaged in protected activity....  However, 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 Airlines, 469 U.S. at 126 & n.19.  Unlawful motive, not malicious  motive, is all that Dr. Forman had to show.


41
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.  Although Hoffman may have thought that administrative resolution 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."


42
Dr. Forman also provided evidence of the remaining elements of a prima facie case of retaliation.  First, Dr. Forman'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. § 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 Heyman 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.  Hoffman's reason for not acting was that Dr. Forman had filed an  EEO complaint.  As a result of Hoffman's inaction, a reasonable 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. Forman'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.


43
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 administration, 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 Freudenheim's evaluation of Dr. Crew's denial of promotion also  cannot support a causal connection between Dr. Crew's failure 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, explaining 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 view."  Although Dr. Forman is entitled on summary judgment to have Freudenheim's initial letter credited, see Reeves, 530 U.S. at 150, it is insufficient to establish causation because 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).


44
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, nonretaliatory reason for Hoffman's failure to act on Dr. Forman'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 unpersuasive 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).



Notes:


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).


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 Dictionary of Physics, supra, at 335, 350.  A laser is also known as an  "optical maser."  Id. at 308.  Masers and atomic clocks are interrelated because the oscillations produced by a maser can provide the frequency standard for an atomic clock.  Id. at 94.


3
  Possible annual performance appraisal ratings were outstanding, highly successful, fully successful, improvement needed, and unacceptable.  The evaluations considered several performance elements including research, collections, exhibits, and public and Museum service.


