Davis v. District of Columbia Child and Family Services Agency,et Al , 246 F. Supp. 3d 367 ( 2017 )


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  •                             UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    RONDA L. DAVIS, et al.,                            :
    :
    Plaintiffs,                                 :       Civil Action No.:       10-1564 (RC)
    :
    v.                                          :       Re Document No.:        144, 146
    :
    DISTRICT OF COLUMBIA,                              :
    :
    Defendant.                                  :
    MEMORANDUM OPINION
    GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT;
    DENYING AS MOOT PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
    I. INTRODUCTION
    Plaintiffs in this case are former employees of the District of Columbia Child and Family
    Services Agency who were terminated in a broad layoff of agency staff. In this putative class
    action lawsuit, Plaintiffs allege that their termination was the result of a discriminatory
    downsizing of the agency’s workforce. Specifically, Plaintiffs allege that the firings, referred to
    as a reduction in force, were the result of discrimination based on both race and age. Plaintiffs
    also allege that the agency’s imposition of a bachelor’s degree requirement for the newly created
    Family Social Worker position was discriminatory as to both race and age.
    After extended litigation, including the Court’s resolution of initial dispositive motions
    and fact and expert discovery by the parties, the Court now considers two pending motions.
    First, Plaintiffs have renewed their motion for class certification. See Pls.’ Mot. Class Certification
    (“Mot Class Certification”), ECF No. 144. Second, the District of Columbia has moved for
    summary judgment. See Def.’s Mot. Summ. J. (“Mot. Summ. J.”), ECF No. 146. For the
    reasons set forth below, the Court will grant the District of Columbia’s motion for summary
    judgment. Because the Court grants summary judgment for the District on all remaining claims,
    the Court does not need to reach Plaintiffs’ motion for class certification. Thus, the Court denies
    that motion as moot.
    II. BACKGROUND
    The Court will begin with a description of the facts giving rise to the parties’ dispute and
    then turn to the procedural history of this case.
    A. Factual Background
    1. The Child and Family Services Agency
    The District of Columbia Child and Family Services Agency (“CFSA”) is entrusted with
    protecting the safety, permanence, and well-being of abused and neglected children and with
    providing services to struggling families. See Def.’s Statement Undisputed Material Facts
    (“Def.’s Material Facts”) ¶ 1, ECF No. 146-2. Although the parties dispute the exact
    organizational structure of CFSA during the relevant time period, compare 
    id. ¶¶ 2,
    5 with Pls.’
    Statement Disputed Material Facts (“Pls.’ Disputed Facts”) at 2–3, ECF No. 148-1, it is
    undisputed that many of CFSA’s “frontline functions” are led by the Office of Agency Programs,
    including investigating reports of child abuse and neglect, temporarily removing children from
    dangerous situations, and providing direct case management. See Def.’s Material Facts ¶ 3; Pls.’
    Disputed Facts at 1. District of Columbia law and the consent decree entered in the class action
    LaShawn v Bowser mandate the provision of many of these services. See Def.’s Material Facts
    ¶ 4; Pls.’ Disputed Facts at 1; see also LaShawn v. Bowser, No. 89-1754 (D.D.C. Feb. 27, 2007),
    ECF No. 864 (order approving Amended Implementation Plan).
    CFSA experienced significant budgetary pressure in fiscal years 2010 and 2011. In FY
    2010 (October 1, 2009 to September 30, 2010), CFSA’s budget decreased by $25.3 million from
    2
    the prior year. See Def.’s Material Facts ¶ 7. The FY 2010 budget reduced the number of full-
    time employees from 940 to 892. See 
    id. ¶ 8.
    In FY 2011, CFSA’s budget was reduced by $12.1
    million and the number of approved full-time employees was reduced further from 892 to 840.
    See 
    id. ¶ 10.
    The agency was required to make the required budget and employee cuts before
    October 1, 2010, the beginning of FY 2011. See 
    id. ¶ 11.
    CFSA implemented a reduction in
    force (“RIF”) to meet the necessary reduction in personnel costs. See 
    id. ¶ 12.
    The RIF, which
    had an effective termination date of June 11, 2010, eliminated a total of 123 positions. See 
    id. ¶¶ 12–13.
    All told, 115 employees were separated from CFSA as a result of the RIF. See 
    id. ¶ 14.
    2. The Reduction in Force
    The parties view the RIF in drastically different light. Plaintiffs posit that the RIF was a
    simple across-the-board cut with discriminatory intentions and effects. Plaintiffs point to a
    memorandum dated April 29, 2010 from CFSA Director Roque Gerald to City Administrator
    Neil Albert that asked for “approval to conduct a Reduction-in-Force . . . to abolish one hundred
    and twenty-three . . . positions within the Child and Family Services Agency.” Pls.’ Mem. P. &
    A. Opp’n Def.’s Mot. Summ. J. (“Opp’n Summ. J.”) at 5, ECF No. 148 (quoting Mot. Summ. J.,
    Ex. F at 1, ECF No. 146-3). The memorandum explained that CFSA “must conduct a
    realignment to consolidate functions in accordance with the FY’2011 budget and internal re-
    engineering,” and that “[t]he deficit resulting from the realignment will precipitate a reduction in
    force.” 
    Id. Plaintiffs note
    that the memorandum provided an “agency-wide” list of positions,
    which purportedly affected virtually every office of CFSA. See Opp’n Summ. J. at 6.
    CFSA’s Director sent a letter dated May 6, 2010 that informed the 115 CFSA employees
    who would be terminated by the RIF. See Opp’n Summ. J., Ex. 2 at 1, ECF No. 148-2. The
    letter did not provide a reason for the RIF, but stated that employees would “be separated from
    3
    District government service effective 6/11/10” and that the RIF was conducted in “accordance
    with Chapter 24 of the District’s Personnel Regulations and in no way reflects adversely on your
    performance of your official duties.” 
    Id. In contrast,
    the District contends that the RIF was the result of a series of separate
    decisions. The District claims that “CFSA did not utilize a single uniform criteria, test or
    requirement for determining which employees” would be included in the RIF. Def.’s Mem. P. &
    A. Supp. Def.’s Mot. Summ. J. (“Mem. Supp. Summ. J.”) at 4, ECF No. 146. Instead, relying on
    the declaration of Raymond Davidson, CFSA’s Chief Administrative Officer at the time of the
    RIF, the District contends that the decisions to eliminate certain positions were the result of
    multiple individual choices by the Director, working in consultation with numerous managers
    and senior leaders in the agency. See Def.’s Material Facts ¶ 15; see also generally Mot. Summ.
    J., Ex. E (“Davidson Decl.”), ECF No. 146-3. But see Pls.’ Disputed Facts at 3. Mr. Davidson’s
    declaration also focused on CFSA’s attempts to create new service models for providing services
    in the District. See Davidson Decl. ¶¶ 6–7, 10–12, 14.
    3. The Newly Created Family Support Worker Position
    The parties also apply their competing narratives to discrete components of the RIF,
    particularly the elimination of the Social Service Assistant (“SSA”) and Social Worker Associate
    (“SWA”) positions and the creation of a new Family Support Worker (“FSW”) position.
    According to Mr. Davidson, CFSA determined that it should adopt a model where Social
    Workers “are ‘teamed’ with a set of skilled partners in order to more effectively serve the needs
    of the Agency’s children and family clients.”’ Davidson Decl. ¶ 6; see also Def.’s Material Facts
    ¶ 18. To advance that model, CFSA eliminated the SSA and SWA positions through the RIF in
    favor of a newly created FSW position. See Davidson Decl. ¶ 7; see also Def.’s Material Facts
    4
    ¶ 19. The elimination of the SSA and SSW positions accounted for the majority of the 115
    employees terminated in the RIF.1 Def.’s Material Facts ¶ 20; Pls.’ Disputed Facts at 6.
    CFSA posted openings for the new FSW positions at the same time it informed
    employees of the RIF. See Opp’n Summ. J., Ex. 3 at 7, ECF No. 148-2. The FSW position
    required a bachelor’s degree in a social service field. Def.’s Material Facts ¶ 32; see also Pls.’
    Disputed Facts at 8 (acknowledging the degree requirement). Debra Porchia-Usher, CFSA
    Deputy Director for Agency Programs, stated that FSWs would be “able to perform casework
    activities that support investigative social workers to obtain the information necessary to
    complete investigations of abuse and neglect, including interviewing family members, children,
    and caretakers[;] assessing the safety of a home and the well-being of children[;] conducting
    home visits; documenting information into the case record; coordinating with other team
    members for meetings; and coordinating needed services for families and children.” See Mot.
    Summ. J., Ex. B (“Porchia-Usher Decl.”) ¶ 12, ECF No. 146-3.
    Plaintiffs contend that the SSA and FSW positions involved the same responsibilities,
    and that the only difference between the positions was the FSW’s degree requirement. Opp’n
    Summ. J. at 8–11. Plaintiffs present CFSA’s job descriptions of the relevant positions, and
    1
    The parties disagree as to whether a total of 70 or 73 employees were terminated when
    the SSA and SWA positions were eliminated. Compare Def.’s Material Facts ¶ 20 with Pls.’
    Disputed Facts at 6. The District relies on the declaration of Mr. Richardson, who states that the
    “elimination of the SSA and SWA positions accounted for 70 of the 115 employees separated in
    the RIF.” Davidson Decl. ¶ 9; see also Mem. Supp. Summ. J. at 4. Plaintiffs rely on the
    declaration of Debra Porchia-Usher, CFSA Deputy Director for Agency Programs, who states
    that 57 SSA “positions” and 16 SWA “positions” were eliminated in the RIF. See Porchia-Usher
    Decl. ¶¶ 14–15. The District suggests that Ms. Porchia-Usher was referring to the number of
    positions eliminated, including vacant positions, instead of the number of employees. See Def.’s
    Reply Pls.’ Statement of Disputed Material Facts at 6. The parties’ experts address statistical
    questions in great detail. See infra Part II.A.5.
    5
    suggest that the descriptions are largely identical. See Opp’n Summ. J. at 8–10; Porchia-Usher
    Decl., Exs. A–B. For, instance, the SSA responsibilities included:
       “[P]roviding direct support to social work staff and the social work function.”
    Porchia-Usher Decl., Ex. A.
       “Conduct[ing] non-clinical home visits accompanying a Social Worker or a Social
    Service Assistant, as needed, for reasons of safety . . . .” 
    Id.  “Provid[ing]
    transportation assistance for clients . . . .” 
    Id.  “Support[ing]
    social workers and supervisory social workers in implementing
    service plans by supervising/facilitating visits, making referrals or scheduling
    service with providers . . . .” 
    Id.  “Participat[ing]
    in case and supervisory conferences as needed; bring[ing]
    problem issues to the attention of the worker and/or supervisor for discussion in
    these conferences.” 
    Id.  “Assist[ing]
    the social worker in completing specified paper searches to locate
    hard-to-find families by searching and clarifying data, checking files, and
    contacting other agencies.” 
    Id. The FWS
    job posting included a number of similar responsibilities, including:
       “Perform[ing] casework, group work, and community organization work under
    the supervision of a Licensed Independent Social Worker . . . .” Porchia-Usher
    Decl., Ex. B.
       “Accompan[ying] a Social Worker as needed, for reasons of safety or
    participat[ing] in home visits and/or investigations to determine the needs of
    clients . . . .” 
    Id.  “Provid[ing]
    transportation assistance for clients . . . .” 
    Id.  “Support[ing]
    social workers and supervisory social workers in implementing
    service plans by supervising/facilitating visits . . . .” 
    Id.  “With
    guidance, develop[ing] plans for and provid[ing] appropriate assistance and
    services on a continuing basis to children and family members.” 
    Id.  “Assist[ing]
    the social worker in completing specified paper and record searches
    to locate hard-to-find families by engaging diligent search services or by
    searching and clarifying existing data, checking files and contacting other
    agencies as necessary.” 
    Id. 6 Plaintiffs
    also present evidence that SSAs were already completing some of the additional
    responsibilities—specifically casework and assessments during home visits—that were included
    in the FSW job description. Plaintiff Darius Morris, for instance, testified during a deposition
    that SSAs routinely made home visits and assessments, but that CFSA did not enter those visits
    and assessments into its database system. See Opp’n Summ. J., Ex. 11 at 21–26, ECF No. 148-3.
    In her response to an interrogatory, Plaintiff Stephanie Alston stated that, despite her lack of a
    bachelor’s degree, the Georgia Avenue Family Support Collaborative, a CFSA contractor, hired
    her as a Family Support Worker. See Opp’n Summ. J., Ex. 14 at 2, 4, ECF No. 148-6.2
    Plaintiffs contend that CFSA’s decision to contract the FSW function to an outside vendor, who
    in turn hired Ms. Alston, shows that a bachelor’s degree was not required to perform the duties
    of a FSW. See Opp’n Summ. J. at 10–11.
    Finally, Plaintiffs present an email sent by CFSA employee Jenna Beebe on May 26,
    2010. See Opp’n Summ. J., Ex. 6 at 1, ECF No. 148-2. Ms. Beebe states that “one of the other
    supervisory interviewers mentioned to me that they felt that the FSW would be used in the exact
    fashion SSA’s were prior to RIF.” 
    Id. Ms. Beebe
    went on to say that, in her understanding,
    “FSW’s will have much higher requirements and acquired skills.” 
    Id. In response,
    Ms. Porchia-
    Usher stated that CFSA would need “to be conscious that all FSW know the expectations” and
    that “performance evaluations [clearly] outline the current position expectations.” 
    Id. 4. Hiring
    for the FSW Position
    A job posting for the newly created FSW position stated that the position would be open
    as of May 5, 2010 and that CFSA planned to fill 35 vacancies. See Opp’n Summ. J., Ex. 4 at 1,
    2
    Because this document is not separately paginated, the Court cites the page numbers
    created automatically by the Court’s Electronic Case Filing system.
    7
    ECF No. 148-2. On June 7, 2010, CFSA Director Gerald sent an email stating that “[t]he first of
    our new Family Support Workers (FSWs) came on board today” and that each of the 17 new
    FSWs “are former CFSA employees we’re re-hiring after the reduction in force last month.”
    Opp’n Summ. J., Ex. 5 at 1, ECF No. 148-2. Director Gerald also stated that “Human Resources
    is prepared to make offers to an additional group shortly. All those candidates are from outside
    CFSA.” 
    Id. According to
    the District’s data, 44 employees who were separated through the RIF
    applied for an FSW position.3 See Def.’s Material Facts ¶ 36. Of the 44 applicants, 30 held a
    bachelor’s degree and therefore satisfied the minimal education requirements of the position. 
    Id. ¶ 37.
    Two declined to be interviewed and two others took other positions in the agency. 
    Id. ¶ 38.
    Following an interview of all qualified applicants, CFSA hired 18 employees who had been
    terminated in the RIF. 
    Id. ¶ 41.
    The District contends that all 18 re-hires were African-
    American and 7 were age 40 or older. 
    Id. ¶¶ 42–43.
    Plaintiff Mr. Ajakaiye was one of the 18
    initial FSW hires, and is the only plaintiff in this case who was hired for that position. Opp’n
    Summ. J. at 12.
    5. Expert Reports
    During the process of discovery, the parties retained experts to provide statistical
    analyses of the RIF and related decisions by CFSA. Plaintiffs hired Dr. Paige Munro, who has a
    Ph.D. in industrial organizational psychology. See Mot. Summ. J., Ex. H (“Munro Decl.”) ¶ 1,
    ECF No. 146-3. The District hired Dr. Stephen Bronars, who has a Ph.D. in economics. See
    3
    Plaintiffs object to elements of the legality and propriety of the District’s FSW hiring,
    but—with one exception—they generally accept the timeline and statistics presented here. See
    Pls.’ Disputed Facts at 10–12. The exception is that Plaintiffs contend that the record does not
    show that one of the purported re-hires was African-American or 40 or older. 
    Id. at 11–12.
    Plaintiffs’ objection appears to be at least partly mistaken. See infra Part IV.B.4.
    8
    Mot. Summ. J., Ex. J ¶ 2. Both of the experts produced two reports using statistical analyses to
    examine the purported impact of CFSA’s employment practices.
    a. Dr. Munro’s July 2012 Report
    Dr. Munro submitted her initial report for the Plaintiffs on July 28, 2012. See Munro
    Decl. at 4; see also Mot. Summ. J., Ex. I, ECF No. 146-3 (Dr. Munro’s report). Dr. Munro based
    her report on data provided by the District in the declaration of Stan Spaght, the Human Resources
    Manager for Compensation/Benefits at CFSA. 
    Id. ¶ 2;
    see also Mot. Summ. J., Ex. I at 1.
    Mr. Spaght stated that, before the RIF, CFSA had a total workforce of 832. See Opp’n Summ. J.,
    Ex. 10 (“Spaght Decl.”) ¶ 5, ECF No. 148-2. According to Mr. Spaght, prior to the RIF, 82.8%
    of employees were African-American and 62.7% were age 40 and over. 
    Id. Finally, Mr.
    Spaght’s declaration stated that, of the 115 workers terminated in the RIF, 93% were African-
    American, and 74.8% were workers 40 and over. 
    Id. Relying on
    that data, Dr. Munro calculated that, of the 832 workers at CFSA before the
    RIF, approximately 689 were African-American and 143 were other races. See Mot. Summ. J.,
    Ex. I at 1. Similarly, approximately 522 employees were 40 and over and 310 were younger than
    40. 
    Id. Dr. Munro
    also calculated that 107 employees terminated in the RIF were African-
    American (8 were other races), and 86 were 40 and over (29 were younger than 40). 
    Id. Dr. Munro
    then conducted a statistical analysis to determine whether the rate of termination for
    African-Americans and employees 40 and over differed in a statistically significant way from the
    termination rates for non-African-American employees and employees under 40. 
    Id. Dr. Munro
    ’s
    analysis concluded that the RIF termination rate for African-Americans was 15.5%, while the
    same rate for non-African-Americans was 5.6%. 
    Id. at 3–4.
    A parallel analysis concluded that
    9
    the RIF termination rate for employees 40 and over was 16.5%, while the same rate for those
    under 40 was 9.4%. 
    Id. at 4–5.
    Dr. Munro’s analysis relies on the 4/5ths rule, which she refers to as a “rule of thumb to
    evaluate adverse impact in a hiring or termination scenario.” 
    Id. at 3.
    Simply put, “if 100% of a
    majority group pass a test then the minority group should not pass at a rate lower than 80% or the
    test result is said to be adversely impacting the minority group.” 
    Id. Dr. Munro
    concluded that
    the RIF violated the 4/5ths rule on the basis of both race and age. 
    Id. 4–5. Dr.
    Munro also
    concluded that both results are strongly statistically significant. 
    Id. Finally, Dr.
    Munro found
    that re-hiring 18 African-American to the FSW position “does not change the net results
    notably.” 
    Id. at 4.
    b. Dr. Bronars’s January 2014 Report
    The District’s expert, Dr. Bronars, produced his initial report on January 8, 2014. See
    Mot. Summ. J., Ex. J. Dr. Bronars begins his analysis with a different total number of CFSA
    employees at the time of the RIF. Dexter Starkes, CFSA Director of Human Resources, stated in
    his declaration that 30 employees in the office of the Fiscal Operations Administration “contribute
    to the agency’s overall headcount, [but] they report to the Office of the Chief Financial Officer
    and are not technically CFSA employees. As a result, these positions were not subject to
    inclusion in the RIF.” Mot. Summ. J., Ex. C ¶ 7 (“Starkes Decl.”), ECF No. 146-3. Therefore,
    Dr. Bronars began his analysis with 802 employees at the time of the RIF, instead of 832. See
    Mot. Summ. J., Ex. J.
    Dr. Bronars took a very different statistical approach than Dr. Munro. Dr. Bronars
    explained that Dr. Munro’s approach “is based on the assumption that all CFSA employees faced
    the same risk of termination during the RIF.” 
    Id. ¶ 11.
    Instead, Dr. Bronars stated that his
    10
    “analysis allows the risk of termination to vary between divisions within the CFSA and among
    certain jobs within the CFSA.” 
    Id. ¶ 12.
    Dr. Bronars based his assumption of disparate risk on
    the declaration of Raymond Davidson, CFSA’s Chief Administrative Officer at the time of the
    RIF. Id.; see also Davidson Decl. Therefore, instead of one analysis of all CFSA employees,
    Dr. Bronars “assume[d] that there are 7 different sets of layoff decisions made by CFSA during
    the RIF” corresponding to 7 different positions or divisions affected by the downsizing. See
    Mot. Summ. J., Ex. J. ¶ 21.
    Dr. Bronars also used a different standard for statistical significance. Relying on
    Supreme Court precedent, he would “conclude that there is statistical evidence of discrimination
    . . . if the difference between the actual outcomes of the termination process and the outcomes
    that would have been expected from a random neutral process is so large that it would have
    occurred 5% of the time.” 
    Id. ¶ 18.
    This difference corresponds to two standard deviations. 
    Id. ¶ 19.
    Dr. Bronars’s analysis concluded that, “while 107 African American employees were laid
    off during the RIF, had employees within each of the seven position and division groups been
    selected in a race-neutral manner, 105.21 African American employees would have been
    terminated.” 
    Id. ¶ 22.
    Similarly, “while 81 employees age 40 and above were laid off during the
    RIF, had employees within each of the seven position and division groups been selected in an
    age-neutral manner, 79.09 employees . . . would have been terminated.” 
    Id. ¶ 23.
    Dr. Bronars
    found that neither difference was statistically significant. 
    Id. ¶¶ 22–23.
    Finally, Dr. Bronars turned to the hiring for the FSW position. Dr. Bronars contends that
    Dr. Munro “effectively assumes that all 115 individuals who were initially terminated during the
    RIF were equally qualified and equally interested in an FSW position.” 
    Id. ¶ 24.
    Based on
    11
    information provided by the Attorney General’s Office, Dr. Bronars states that 44 former
    employees applied for the FSW position, 2 withdrew or declined to be interviewed, and 14 were
    determined not to be qualified for the position. 
    Id. ¶ 25.
    Ultimately, 18 of the 28 qualified and
    interested former CFSA employees were re-hired as FSWs. 
    Id. Because all
    18 re-hires were
    African American, Dr. Bronars concludes “[t]here is, of course, no possibility of racial disparity
    in the re-hiring process.” 
    Id. Turning to
    the age of applicants, Dr. Bronars states that “11 of the former CFSA
    employees re-hired into the FSW position were under age 40 and 7 were age 40 and above.” 
    Id. ¶ 26.
    Dr. Bronars notes that half of the interested and qualified applicants for the FSW positon
    were age 40 and above. 
    Id. Thus, in
    an “age-neutral process one would expect that half of the
    18 re-hired former CFSA employees would be under age 40 and half would be age 40 and
    above.” 
    Id. Dr. Bronars
    concludes that “[t]he difference between 7 [actual] and 9 [expected] re-
    hired employees is equivalent to a difference of 1.58 standard deviations and is therefore
    statistically insignificant.” 
    Id. c. Dr.
    Munro’s May 2014 Report
    Dr. Munro submitted a rebuttal to Dr. Bronars’s report on dated May 7, 2014. See Mot.
    Summ. J., Ex. K, ECF No. 146-4. To start, Dr. Munro raises issues with the updated data
    provided by the District and relied upon by Dr. Bronars. Dr. Munro concludes that 30
    employees are not accounted for in the updated data and that racial identification is not provided
    in 84 cases. 
    Id. at 2.
    Nevertheless, Dr. Munro replicated her original calculations using the new
    data, and found what she describes as “more significant results.” 
    Id. at 2–4.
    While Dr. Munro’s
    initial analysis concluded that the RIF’s “African American termination rate was 277% the rate
    for non-African Americans,” her updated analysis concluded that “the termination rate of
    12
    African Americans was 444% the rate of Caucasians, which is much, much more notable.” 
    Id. at 3
    (emphasis added). Similarly, Dr. Munro’s initial analysis found that employees 40 and over
    were terminated “at 176% the rate of those under 40,” but after considering the new data, she
    found that employees 40 and over were terminated “at 179% the rate of those under 40.” 
    Id. at 4.
    Dr. Munro concludes that the termination rates for both African-Americans and employees 40
    and over violated the 4/5ths rule and that both results are statistically significant. 
    Id. at 3–4.
    Dr. Munro also identified several purported methodological and statistical issues with Dr.
    Bronars’s previous report. 
    Id. at 5–7
    (summarizing concerns). First, Dr. Munro questions Dr.
    Bronars’s assumption that different positions faced unequal risks of termination in the RIF. 
    Id. at 5,
    8–11. Dr. Munro contends that Dr. Bronars bases this assumption on the relatively recent
    declaration of Mr. Davidson, but that, “at the time of [her] analysis, the most practical
    assumption to make was that aside from the SSAs (that were 100% terminated), every other
    position and employee . . . was at equal risk for termination.”4 
    Id. at 5;
    see also 
    id. at 8–12.
    Second, Dr. Munro raises two statistical issues with Dr. Bronars’s analysis. 
    Id. at 6,
    12–
    16. For one, sample size is an important factor in finding a statistically significant result, and by
    breaking the larger sample size (all employees) into smaller subgroups (specific positions or
    divisions), Dr. Bronars made it less likely that any statistically significant result would be found.
    
    Id. at 14.
    For another, the subgroups analyzed by Dr. Bronars were very homogenous—at least
    one subgroup was entirely African-American, for example—and Dr. Munro contends that
    homogenous subsamples can make an effort to predict differentials between expected and
    4
    Dr. Munro, like Plaintiffs, refers to the fact that Mr. Davidson signed his declaration
    one day before Dr. Bronars signed his report. See Mot. Summ. J., Ex. K at 5–6; see also Opp’n
    Summ. J. at 3–4. Dr. Bronars explains that his “statistical analysis was informed by an unsigned
    copy of Mr. Davidson’s declaration that [he] received . . . several weeks before [his] report was
    due.” Mot. Summ. J., Ex. L ¶ 14.
    13
    observed outcomes “completely meaningless.” 
    Id. Third, Dr.
    Munro suggests that Dr. Bronars’s
    “conclusions are not dispositive of adverse impact.” 
    Id. at 16.
    According to Dr. Munro, the
    homogeneity of Dr. Bronars’s subsamples raises another possibility—“that the ‘targeted’ positions
    and divisions were disproportionately occupied by African Americans and those over 40.” 
    Id. Finally, Dr.
    Munro concludes her report with a lengthy analysis of the financial and agency
    efficiency implications of the RIF. 
    Id. at 22–31.
    d. Dr. Bronars’s July 2014 Report
    Dr. Bronars also submitted a second report, which he signed on July 28, 2014. See Mot.
    Summ. J., Ex. L at 6, ECF No. 146-6. In short, Dr. Bronars states that his “conclusions are the
    same as they were in [his] January 2014 report.” 
    Id. ¶ 8.
    Dr. Bronars does, however, respond to
    the critiques raised by Dr. Munro.
    The core of Dr. Bronars’s argument is that Dr. Munro’s model improperly assumes that
    “a non-discriminatory RIF implies that all agency employees have the same chance of
    termination.” 
    Id. ¶ 10.
    Dr. Bronars points to both Mr. Davidson’s declaration and Dr. Munro’s
    own analysis of RIF best practices to argue that a well-constructed and non-discriminatory RIF
    will not target employees in a completely random manner. 
    Id. ¶¶ 10–12.
    Instead, “[b]est
    practices and concerns for program efficiency could lead to the elimination of entire positions or
    disproportionate terminations” in redundant divisions, but these “valid non-discriminatory RIF
    decisions are nearly impossible to reconcile with Dr. Munro’s statistical model.” 
    Id. ¶ 12.
    Dr. Bronars acknowledges that “a small sample size reduces the statistical power of a test
    and will tend to make the statistical inferences inconclusive,” but he argues that low statistical
    power due to small sample sizes is not a reason to “assume that a non-discriminatory RIF would
    subject all employees to the same chance of termination.” 
    Id. ¶ 7.
    Dr. Bronars also contends that
    14
    “while [his] analysis allowed for different termination decisions in each of seven different
    employee categories . . . [his] statistical calculation for adverse impact was aggregated across all
    of these categories.” 
    Id. ¶ 17.
    Finally, Dr. Bronars again criticizes Dr. Munro’s reliance on the
    4/5ths rule and suggests that Dr. Munro “offered no statistical tests for her conjecture that the
    ‘targeting’ of certain positions and divisions/offices was motivated by discrimination rather than
    business necessity.” 
    Id. ¶¶ 20–21.
    B. Procedural History
    1. The Equal Employment Opportunity Commission
    Following the RIF, Darius Morris filed his claim with the Equal Employment Opportunity
    Commission (“EEOC”) on September 8, 2010, alleging discrimination on the basis of race,
    color, national origin, age, and retaliation. See Def.’s Material Facts ¶ 47. Mr. Morris referred to
    his charge as a “Class Action Charge” in the caption, and stated, “[a]ll the 60 or so Social
    Service Assistants are African-American (black) as the Agency knew . . . . CFSA harmed me and
    the other former SSAs without business need and without any job related reason.” Mot. Summ.
    J., Ex. P, ECF No. 164-4. Mr. Morris received a right to sue letter from the EEOC on March 14,
    2011. See Def.’s Material Facts ¶ 48.
    Zaccheus Ajakaiye filed a charge of discrimination with the EEOC alleging
    discrimination based on national origin on July 16, 2010. See 
    id. ¶ 44.
    Mr. Ajakaiye filed an
    amended charge on August 6, 2010 alleging discrimination on the basis of race, color, and
    national origin. See 
    id. ¶ 45.
    He received a right to sue letter from the EEOC on February 18,
    2011. See 
    id. ¶ 46.
    Plaintiffs acknowledge that no other purported class members are in possession of right
    to sue letters from the EEOC. See Pls.’ Disputed Facts at 1; Opp’n Summ. J. at 30 & n.2
    15
    (acknowledging that Plaintiffs cannot present other right to sue letters, but stating that “Plaintiffs
    do not concede that Ajakaiye and Morris are the only terminated CFSA employees to file claims
    with the EEOC”). But Plaintiffs present evidence that additional EEOC charges were filed.
    Specifically, Plaintiffs’ prior counsel, David Rose, requested the amendment to Mr. Ajakaiye’s
    charge in a letter to the EEOC. See Opp’n Summ. J., Ex. 7. In the same letter, Mr. Rose referred
    to a “letter dated August 20, 2010, with at least 19 other charges by Social Service Assistants.”
    
    Id. Two months
    later, Mr. Rose submitted another letter to the EEOC referring to “the three . . .
    most recently signed Charges of Discrimination in this case, from former CFSA SSAs.” Opp’n
    Summ. J., Ex. 8. In October 2010, Mr. Rose sent another letter stating that he represented nine
    former employees of CFSA, including Mr. Ajakaiye, and requested right to sue letters for the
    other eight. See Opp’n Summ. J., Ex. 9. Plaintiffs state that they contacted the EEOC regarding
    these communications and other possible right to sue letters, but that the EEOC informed
    Plaintiffs’ current “counsel that, in the absence of Charge Numbers for the additional nineteen
    plaintiffs, EEOC offices lack the capacity to conduct a thorough search of its records based
    solely on plaintiffs’ names.” Opp’n Summ. J. at 13 n.6.
    2. Proceedings before this Court
    Plaintiffs in Davis v. District of Columbia, No. 10-1564, filed their Complaint in this
    Court on September 16, 2010. See Compl., ECF No. 1. This case was consolidated with Dudley
    v. District of Columbia, No. 10-1718, and following the Court’s resolution of dispositive
    briefing, Plaintiffs filed a Second Amended Complaint on March 22, 2013. See 2d Am. Compl.,
    ECF No. 58. Finally, Plaintiffs filed a Third Amended Complaint on May 31, 2013, which
    remains operative in this case. See 3d Am. Compl., ECF No. 66.
    16
    The Third Amended Complaint was filed on behalf of 47 named Plaintiffs and “other
    members of the group who received the RIF notices . . . and were discharged from employment
    by defendant.” 
    Id. ¶ 8.
    The Third Amended Complaint contains two claims for relief: (1) “Age
    Discriminatory Practices” in violation of the District of Columbia Human Rights Act (“DCHRA”),
    D.C. Code § 2-1402.11, and (2) “Race Discrimination” in violation of the DCHRA and Title VII
    of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq. 
    Id. at 14,
    16. Plaintiffs
    alleged that both the RIF and the bachelor’s degree requirement of the newly created FSW position
    had a discriminatory impact on African-Americans and older employees. 
    Id. ¶¶ 84–86,
    98–100.
    As previously mentioned, this Court resolved initial dispositive motions in 2013. See
    Davis v. District of Columbia, 
    949 F. Supp. 2d 1
    (D.D.C. 2013), ECF No. 55. Upon consideration
    of the District’s motion to dismiss, or in the alternative, for summary judgment, the Court
    dismissed Plaintiffs’ disparate treatment theory based on the RIF, but allowed a related disparate
    impact theory to go forward. 
    Id. at 11.
    The Court also permitted Plaintiffs to go forward with
    both disparate impact and disparate treatment theories related to the FSW’s degree requirement.
    
    Id. Specifically, the
    Court explained that the “disparate impact claims based on both the
    reduction in force and the educational requirements for Family Social Workers will go forward
    under the Human Rights Act, as they did under Title VII, as will the disparate treatment claim
    based on those degree requirements.” 
    Id. at 12.
    Now pending before the Court is the District’s
    post-discovery motion for summary judgment. See Mot. Summ. J., ECF No. 146.
    During the pendency of this litigation, the Court granted the District’s motion for
    sanctions, finding that Plaintiffs “have missed or ignored discovery deadlines, not provided
    appropriate documentation or answers to discovery requests, and generally failed to comply with
    the Federal Rules of Civil Procedure.” See Davis v. D.C. Child & Family Servs. Agency, 304
    
    17 F.R.D. 51
    , 60 (D.D.C. 2014), ECF No. 97. The Court also issued an order dismissing without
    prejudice Michelle Millard-Simms, based on her voluntary withdrawal, and four other Plaintiffs
    for failure to prosecute their claims. See Order, ECF No. 139
    Plaintiffs have repeatedly sought class certification during this case. On January 14, 2011,
    Plaintiffs moved for class certification for the first time. See Pls.’ Mot. Class Certification, ECF
    No. 12. The Court denied that motion without prejudice as moot because Plaintiffs had amended
    their Complaint. See Min. Order (Sept. 23, 2011). Plaintiffs renewed their motion for class
    certification on February 14, 2014. See Mem. Supp. Pls.’ Mot. Class Certification, ECF No. 81.
    The Court again denied Plaintiffs’ motion without prejudice and explained that the pre-discovery
    motion was premature. See Min. Order (Feb. 21, 2014). Following discovery, the Court ordered
    Plaintiffs to file an additional motion for class certification on or before November 9, 2015. See
    Min. Entry (Sept. 8, 2015). That motion is now pending before the Court. See Mot. Class
    Certification.
    III. LEGAL STANDARDS
    A. Summary Judgment
    Under Rule 56 of the Federal Rules of Civil Procedure, a court must grant summary
    judgment if “the movant shows that there is no genuine dispute as to any material fact and the
    movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A “material” fact is
    one capable of affecting the substantive outcome of the litigation. See Anderson v. Liberty
    Lobby, Inc., 
    477 U.S. 242
    , 248 (1986). A dispute is “genuine” if there is enough evidence for a
    reasonable jury to return a verdict for the non-movant. See Scott v. Harris, 
    550 U.S. 372
    , 380
    (2007). The inquiry under Rule 56 is essentially “whether the evidence presents a sufficient
    18
    disagreement to require submission to a jury or whether it is so one-sided that one party must
    prevail as a matter of law.” 
    Anderson, 477 U.S. at 251
    –52.
    The principal purpose of summary judgment is to determine whether there is a genuine
    need for trial by disposing of factually unsupported claims or defenses. See Celotex Corp. v.
    Catrett, 
    477 U.S. 317
    , 323–24 (1986). The movant bears the initial burden of identifying
    portions of the record that demonstrate the absence of any genuine issue of material fact. See
    Fed. R. Civ. P. 56(c)(1); 
    Celotex, 477 U.S. at 323
    . In response, the non-movant must point to
    specific facts in the record that reveal a genuine issue that is suitable for trial. See Fed. R. Civ. P.
    56(c)(1); 
    Celotex, 477 U.S. at 324
    . “[T]he non-movant ‘may not rest upon mere allegations or
    denials . . .’ but must [instead] present ‘affirmative evidence.’” See Laningham v. U.S. Navy,
    
    813 F.2d 1236
    , 1241 (D.C. Cir. 1987) (quoting 
    Anderson, 477 U.S. at 256
    –57).
    In considering a motion for summary judgment, a court must “eschew making credibility
    determinations or weighing the evidence.” Czekalski v. Peters, 
    475 F.3d 360
    , 363 (D.C. Cir.
    2007). All underlying facts and inferences must be analyzed in the light most favorable to the
    non-movant. See 
    Anderson, 477 U.S. at 255
    . Nevertheless, conclusory assertions offered
    without any evidentiary support do not establish a genuine issue for trial. See Greene v. Dalton,
    
    164 F.3d 671
    , 675 (D.C. Cir. 1999).
    B. Class Certification
    A class action is “an exception to the usual rule that litigation is conducted by and on
    behalf of the individual named parties only.” Califano v. Yamasaki, 
    442 U.S. 682
    , 700–701
    (1979). To justify a departure from that rule, “a class representative must be part of the class and
    ‘possess the same interest and suffer the same injury’ as the class members.” East Tex. Motor
    Freight Sys. Inc. v. Rodriguez, 
    431 U.S. 395
    , 403 (1977) (quoting Schlesinger v. Reservists
    19
    Comm. to Stop the War, 
    418 U.S. 208
    , 216 (1974)). Rule 23 of the Federal Rules of Civil
    Procedure, which governs class certification, permits certification only if:
    (1) the class is so numerous that joinder of all members is impracticable; (2) there
    are questions of law or fact common to the class; (3) the claims or defenses of the
    representative parties are typical of the claims or defenses of the class; and (4) the
    representative parties will fairly and adequately represent the interests of the class.
    Fed. R. Civ. P. 23(a).
    In addition, the party seeking certification must demonstrate that one of the relevant
    provisions of Rule 23(b) has been satisfied. See Fed. R. Civ. P. 23(b). Here, Plaintiffs have
    requested hybrid class certification that would certify two subclasses—one defined by age and
    the other by race—first under Rule 23(b)(2) for the purposes of determining the District’s
    liability and then under Rule 23(b)(3) for the purpose of determining an appropriate remedy for
    each member of the class. See Pls.’ Mem. P. & A. Supp. Mot. Class Certification at 14–15, ECF
    No. 144. In the alternative, Plaintiffs request that the Court certify the two subclasses under Rule
    23(b)(3) for all purposes. 
    Id. at 22.
    Rule 23(b)(2) requires a showing that “the party opposing
    the class has acted or refused to act on grounds that apply generally to the class, so that final
    injunctive relief or corresponding declaratory relief is appropriate respecting the class as a
    whole.” Fed. R. Civ. P. 23(b)(2). Rule 23(b)(3) requires a showing that “the questions of law or
    fact common to class members predominate over any questions affecting only individual
    members, and that a class action is superior to other available methods for fairly and efficiently
    adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).
    Plaintiffs bear the burden of establishing that there is a “reasonable basis for crediting
    [their] assertion[s]” as to each Rule 23 requirement. Wagner v. Taylor, 
    836 F.2d 578
    , 587 n.57
    (D.C. Cir. 1987); see also McCarthy v. Kleindienst, 
    741 F.2d 1406
    , 1414 n.9 (D.C. Cir. 1984)
    20
    (“[I]t is the party seeking class certification that bears the burden of establishing the class action
    requirements.”).
    IV. ANALYSIS
    The District raises a wide range of arguments in support of its motion for summary
    judgment. The District first raises a number of issues that are specific to particular Plaintiffs.
    Next, the District argues that the Plaintiffs’ discrimination claims generally fail as a matter of
    law. The Court will address the arguments in turn, first considering the narrow Plaintiff-specific
    issues and then turning to the broader discrimination questions. After addressing the preliminary
    issues, the Court finds that the District is entitled to summary judgment on all of Plaintiffs’
    remaining claims. Because the Court grants the District’s motion for summary judgment as to all
    remaining claims, there is no need to consider Plaintiffs’ motion for class certification. Thus, the
    Court denies that motion as moot.
    A. Issues Specific to Particular Plaintiffs
    1. Judicial Estoppel and Prior Bankruptcy Proceedings
    The doctrine of judicial estoppel prevents a party from relying on one argument in an
    initial proceeding, and then subsequently prevailing in another proceeding by relying on a
    contradictory position. The District argues that Mr. Ajakaiye and Ms. Alston are barred from
    bringing their claims in this case because they failed to disclose their claims in separate
    bankruptcy proceedings. See Mem. Supp. Summ. J. at 12. Plaintiffs respond that judicial
    estoppel is not appropriate where the omission was the result of an innocent mistake or
    inadvertent conduct. See Opp’n Summ. J. at 24. For the following reasons, the Court finds that
    judicial estoppel bars Mr. Ajakaiye’s and Ms. Alston’s claims.
    21
    The doctrine of judicial estoppel “prevents a party from asserting a claim in a legal
    proceeding that is inconsistent with a claim taken by that party in a previous proceeding.” Moses
    v. Howard Univ. Hosp., 
    606 F.3d 789
    , 798 (D.C. Cir. 2010) (quoting New Hampshire v. Maine,
    
    532 U.S. 742
    , 749 (2001)). The purpose of judicial estoppel is “to protect the integrity of the
    judicial process” and “to prevent improper use of judicial machinery,” and the doctrine may be
    invoked at the court’s discretion. Rogler v. Gallin, 402 F. App’x 530, 530 (D.C. Cir. 2010)
    (per curiam) (quoting New 
    Hampshire, 532 U.S. at 750
    ). The D.C. Circuit has identified three
    questions a court should consider when exercising that discretion:
    (1) Is a party’s later position clearly inconsistent with its earlier position? (2) Has
    the party succeeded in persuading a court to accept that party’s earlier position, so
    that judicial acceptance of an inconsistent position in a later proceeding would
    create the perception that either the first or the second court was misled? (3) Will
    the party seeking to assert an inconsistent position derive an unfair advantage or
    impose an unfair detriment on the opposing party if not estopped?
    
    Moses, 606 F.3d at 798
    .
    The Moses court considered these questions in the context of a plaintiff who failed to
    disclose a pending suit in a bankruptcy proceeding. 
    Id. at 798–99.
    After considering the
    application of each of the three questions, the D.C. Circuit joined other circuits in approving the
    application of judicial estoppel “to bar a debtor from pursuing a cause of action in district court
    where that debtor deliberately fails to disclose the pending suit in a bankruptcy case.” 
    Id. at 798.
    In sum, judicial estoppel in the bankruptcy context “protects the integrity of the bankruptcy
    system and is meant to prevent parties from hiding causes of actions during bankruptcy
    proceedings,” obtaining the discharge of debts, and only then asserting the cause of action.
    Robinson v. District of Columbia, 
    10 F. Supp. 3d 181
    , 185 (D.D.C. 2014) (internal citations
    omitted).
    22
    In this case, it is undisputed that Mr. Ajakaiye and Ms. Alston both filed for bankruptcy
    and that neither listed claims against the District in their bankruptcy petition. See Def.’s Material
    Facts ¶¶ 49–56; Pls.’ Disputed Material Facts at 1 (agreeing to the factual descriptions of the
    bankruptcy proceedings, but disputing legal conclusions). Mr. Ajakaiye filed his bankruptcy
    petition on July 2, 2010, and the bankruptcy court discharged his debts on October 14, 2010 and
    issued a final decree closing the case on October 22, 2010. See Def.’s Material Facts ¶¶ 49, 51–
    52. Ms. Alston filed her bankruptcy petition on May 21, 2013, and the bankruptcy court
    discharged her debts on August 22, 2013 and issued a final decree closing the case on September
    20, 2013. See Def.’s Material Facts ¶¶ 53, 55–56.5 Both Plaintiffs were named in the initial
    Complaint, which was filed on September 16, 2010. See Compl. at 1, ECF No. 1. It is fair to
    presume that a party would be aware of their claim before it was filed in Court. At the very least,
    a party needs time to secure counsel and then to coordinate with their attorney during the drafting
    and preparation of the complaint. Furthermore, Mr. Ajakaiye filed a charge of discrimination
    with the EEOC alleging discrimination based on national origin on July 16, 2010. See Def.’s
    Material Facts ¶ 44. He was certainly aware of his claims at that time, just two weeks after he
    filed his bankruptcy petition.
    Based on these facts, the Court reaches the same result as Moses. First, Mr. Ajakaiye and
    Ms. Alston’s bankruptcy filings and pleadings in this case are “clearly inconsistent.” 
    Moses, 606 F.3d at 798
    . Both were “required to disclose all potential claims in a bankruptcy petition,” but
    failed to do so. 
    Id. at 793
    (citing 11 U.S.C. §§ 521(1), 541(a)(1)). Furthermore, both bankruptcy
    proceedings overlapped temporally with this case, even if only briefly in Mr. Ajakaiye’s case,
    5
    The Court notes that the District’s Statement of Material Facts appears to mistakenly
    assert that the bankruptcy court discharged Ms. Alston’s debts on October 18, 2013. See Def.’s
    Material Facts ¶ 55; Mot. Summ. J., Ex. U, ECF No. 146-4.
    23
    and a debtor is under a duty “to amend his petition if circumstances change during the course of
    the bankruptcy.” 
    Id. Despite these
    requirements, neither Mr. Ajakaiye nor Ms. Alston disclosed
    their discrimination claims in their bankruptcy proceedings. Second, the relevant Bankruptcy
    Courts discharged the debts of Mr. Ajakaiye and Ms. Alston, and this Court permitted the current
    discrimination case to proceed at the same time. As in Moses, this convergence “leaves little
    doubt that [Mr. Ajakaiye and Ms. Alston] succeeded in hiding the inconsistency from the courts
    and ‘creat[es] the perception that either the first or the second court was misled.’” 
    Id. at 799
    (quoting New 
    Hampshire, 532 U.S. at 750
    )). Third, Mr. Ajakaiye and Ms. Alston gained an
    unfair advantage over their creditors because they would not be required to turn over any
    damages to their creditors if they were to succeed in this suit. The non-disclosure also affected
    the District because, if the relevant Trustees were aware of this case, they “might have settled
    this case early or decided not to pursue it.” 
    Id. Therefore, the
    basic requirements for the
    application of judicial estoppel, as articulated in Moses, are applicable here.
    Plaintiffs make an additional argument against the application of judicial estoppel.
    Plaintiffs assert that judicial estoppel does not bar Mr. Ajakaiye and Ms. Alston’s claims because
    they did not have knowledge of their claims or any motive to conceal those claims in their
    bankruptcy proceedings. See Opp’n Summ. J. at 23–24. The Supreme Court has instructed that
    “it may be appropriate to resist application of judicial estoppel when a party’s prior position was
    based on inadvertence or mistake.” New 
    Hampshire, 532 U.S. at 753
    (quotation marks omitted).
    In Moses, the D.C. Circuit accepted this basic principle, but found that the plaintiff “cannot avoid
    judicial estoppel” on this basis because he “failed to disclose the existence of this case in two
    separate bankruptcy proceedings, yet in both of those proceedings he listed pending lawsuits
    24
    that, unlike the instant case, reduced the overall value of his assets through wage garnishment.”
    
    Moses, 606 F.3d at 800
    .
    The D.C. Circuit recently revisited the question of when inadvertence or mistake can
    excuse a debtor’s failure to disclose a claim. See Marshall v. Honeywell Tech. Sys. Inc., 
    828 F.3d 923
    , 932 (D.C. Cir. 2016), cert. denied, 
    137 S. Ct. 830
    (2017). In a divided opinion, the
    court summarized the views of other circuits:
    Many courts of appeals have adopted the Fifth Circuit’s statement that a “debtor’s
    failure to satisfy its statutory disclosure duty is ‘inadvertent’ only when, in
    general, the debtor either lacks knowledge of the undisclosed claims or has no
    motive for their concealment.” In re Coastal Plains, Inc., 
    179 F.3d 197
    , 210 (5th
    Cir. 1999) (italics in original); see 
    Barger, 348 F.3d at 1295
    –96; Browning v.
    Levy, 
    283 F.3d 761
    , 776 (6th Cir. 2002); Eastman v. Union Pac. R.R. Co., 
    493 F.3d 1151
    , 1157 (10th Cir. 2007). Others have found that evaluating subjective
    motivations is difficult and the court can therefore presume that a debtor has acted
    intentionally, unless there is evidence otherwise. The Third Circuit, for example,
    has held that if a debtor knowingly omits valuable assets from her bankruptcy
    schedules, the court may infer that the omission was not an innocent mistake.
    Krystal Cadillac–Oldsmobile GMC Truck, Inc. v. Gen. Motors Corp., 
    337 F.3d 314
    , 321 (3d Cir. 2003); see also Burnes v. Pemco Aeroplex, Inc., 
    291 F.3d 1282
    ,
    1287–88 (11th Cir. 2002). The Ninth Circuit, disagreeing, holds that district
    courts must give weight to “the plaintiff’s subjective intent when filling out and
    signing the bankruptcy schedules.” Ah Quin v. Cty. of Kauai Dep’t of Transp.,
    
    733 F.3d 267
    , 277 (9th Cir. 2013).
    
    Id. The court
    concluded, however, that it had “no need to take sides in this debate, if indeed
    there are discrete sides at all.” 
    Id. Some policy
    considerations weigh against the overzealous application of judicial estoppel
    in this context. As Judge Griffith explained, “[h]onest mistakes and oversights are not unheard
    of” in the bankruptcy context. 
    Id. at 934
    (Griffith, J., dissenting) (alteration in original) (quoting
    Spaine v. Cmty. Contacts, Inc., 
    756 F.3d 542
    , 548 (7th Cir. 2014)). Furthermore, when a court
    “appl[ies] judicial estoppel based on bankruptcy omissions, the costs primarily fall not on the
    plaintiff, but on her creditors, who might otherwise recover assets from successful lawsuits.” 
    Id. at 934
    –35.
    25
    Ultimately, the Court finds that judicial estoppel bars Mr. Ajakaiye and Ms. Alston from
    bringing their claims here because they have put forward no evidence that inadvertence or
    mistake caused their prior omissions. Under the well-known rule, summary judgment is
    appropriate only if there is “no genuine issue as to any material fact.” Celotex 
    Corp., 477 U.S. at 322
    . The Court must resolve “any doubts” as to the existence of a genuine issue for trial in the
    non-moving party’s favor. McSurely v. McClellan, 
    697 F.2d 309
    , 321 (D.C. Cir. 1982). But the
    non-moving party’s opposition “must consist of more than mere unsupported allegations or
    denials and must be supported by affidavits, declarations or other competent evidence, setting
    forth specific facts showing that there is a genuine issue for trial.” Doe v. U.S. Dep’t of
    Treasury, 
    706 F. Supp. 2d 1
    , 5 (D.D.C. 2009).
    In Marshall, the court refused to find inadvertence or mistake even after the plaintiff filed
    an affidavit stating that she “had no knowledge that I was required to list my discrimination
    administrative proceedings on my bankruptcy petition schedules or on any financial statements.”
    
    Marshall, 828 F.3d at 930
    –31. The plaintiff also presented evidence that she orally disclosed
    one of her discrimination claims to the trustee at her creditors’ meeting in 2005. 
    Id. at 930.
    Plaintiffs in this case have presented no evidence, by affidavit or otherwise, to support their
    assertion that Mr. Ajakaiye and Ms. Alston failed to disclose their claims because of
    inadvertence or mistake. Even in the more permissive circuits, courts have refused to find
    inadvertence or mistake where a plaintiff “presented no evidence, by affidavit or otherwise,
    explaining her initial failure to include the action on her bankruptcy schedules.” Dzakula v.
    McHugh, 
    746 F.3d 399
    , 401 (9th Cir. 2014). For these reasons, the Court finds that judicial
    estoppel bars the claims of Mr. Ajakaiye and Ms. Alston. The Court will therefore grant
    summary judgment in favor of the District on this issue.
    26
    2. Standing of Plaintiffs with a Bachelor’s Degree
    The District argues that Mr. Morris and Mr. Ajakaiye do not have standing to challenge
    the college degree requirement for the newly created FSW position because both men had a
    college degree at the time of the RIF. See Mem. Supp. Summ. J. at 15. Plaintiffs respond that
    each Plaintiff, “regardless of their educational backgrounds and regardless of whether they were
    subsequently hired for the FSW position, suffered injury from the moment that they were
    separated from the agency.” See Opp’n Summ. J. at 34. For the reasons explained below, the
    Court finds that Plaintiffs with a college degree lack standing to challenge the degree
    requirement for the FSW position.
    The party seeking to assert federal jurisdiction bears the burden of establishing standing.
    See DaimlerChrysler Corp. v. Cuno, 
    547 U.S. 332
    , 342 (2006). The requirements for standing
    are that: (1) the plaintiff must have suffered an injury in fact, (2) the injury must have a causal
    connection to the actions of the defendant, and (3) it must be likely that a favorable decision
    could redress the injury. See Lujan v. Defs. of Wildlife, 
    504 U.S. 555
    , 560–61 (1992). In short,
    “the Constitution requires that an injury be concrete, particularized, and actual or imminent;
    fairly traceable to the challenged action; and redressable by a favorable ruling.” Monsanto Co. v.
    Geertson Seed Farms, 
    561 U.S. 139
    , 149 (2010).
    Plaintiffs argue that the loss of their jobs is sufficient to create standing because they
    “suffered injury from the moment they were separated from the agency” and the District caused
    that injury. See Opp’n Summ. J. at 34. Plaintiffs also attempt to tie the RIF to the degree
    requirement, arguing that the District has already conceded Plaintiffs’ standing to challenge the
    RIF and that the “eligibil[ity] to be hired for the FSW position represented an opportunity for the
    27
    government to mitigate the injury of selecting plaintiffs for the RIF, not a separate injury.” 
    Id. Plaintiffs offer
    no support for that position.
    As the District correctly notes, “standing is not dispensed in gross.” Def.’s Reply Mem.
    Supp. Mot. Summ. J. (“Reply Supp. Summ. J.”) at 9, ECF No. 154 (quoting Lewis v. Casey, 
    518 U.S. 343
    , 358 n.6 (1996)). Instead, “a plaintiff must demonstrate standing for each claim he
    seeks to press.” 
    Cuno, 547 U.S. at 335
    . Here, it is undisputed that Mr. Morris and Mr. Ajakaiye
    held a bachelor’s degree at the time of the RIF.6 See Def.’s Material Facts ¶¶ 61–62; Pls.’
    Disputed Material Facts at 1 (noting that Plaintiffs do not dispute these paragraphs). Plaintiffs
    argue that the bachelor’s degree requirement for the FSW position is discriminatory, see Opp’n
    Summ. J. at 43–44, but that requirement simply could not have injured employees who already
    had a degree. The policy is not causally connected to any injury alleged by employees with a
    bachelor’s degree. Although Mr. Morris and Mr. Ajakaiye have standing to challenge the RIF,
    they do not have standing to challenge the FSW’s bachelor’s degree requirement. Thus, the
    Court will grant summary judgment for the District on this issue.
    3. Exhaustion of Administrative Remedies
    The District argues that only Mr. Morris and Mr. Ajakaiye have exhausted their
    administrative remedies, and therefore the other Plaintiffs should not be permitted to proceed on
    their Title VII claims. See Mem. Supp. Summ. J. at 16. Plaintiffs acknowledge the general rule
    asserted by the District, but argue that the doctrine of vicarious exhaustion allows a party who
    did not file a charge with the EEOC to piggy back on another similar charge. See Opp’n Summ.
    J. at 27. The Court finds that the EEOC charges filed by Mr. Morris and Mr. Ajakaiye provided
    6
    The District also notes that Mr. Ajakaiye was hired to the FSW position, see Mem.
    Supp. Summ. J. at 15, but the Court relies solely on Mr. Ajakaiye’s bachelor’s degree in its
    standing analysis.
    28
    sufficient notice to the District of the similar claims raised by other Plaintiffs. Thus, the Court
    denies the District’s motion for summary judgment on this issue.
    Generally, a plaintiff must exhaust their administrative remedies by filing a charge of
    discrimination with the EEOC before bringing a civil suit under Title VII. See Washington v.
    Wash. Metro. Area Transit Auth., 
    160 F.3d 750
    , 752 (D.C. Cir. 1998); 42 U.S.C. § 2000e–
    5(f)(1). “The purpose of the [administrative exhaustion] doctrine is to afford the agency an
    opportunity to resolve the matter internally and to avoid unnecessarily burdening the courts.”
    Wilson v. Pena, 
    79 F.3d 154
    , 165 (D.C. Cir. 1996). Ordinarily, as proof of such exhaustion of
    administrative remedies, a plaintiff would receive a right to sue letter from the EEOC. See
    42 U.S.C. § 2000e–5(f)(1); see also Park v. Howard Univ., 
    71 F.3d 904
    , 907 (D.C. Cir. 1995)
    (“Only after the EEOC has notified the aggrieved person of its decision to dismiss or its inability
    to bring a civil action within the requisite time period can that person bring a civil action
    herself.”). “A court cannot allow liberal interpretation of an administrative charge to permit a
    litigant to bypass the Title VII administrative process.” 
    Park, 71 F.3d at 907
    .
    Nevertheless, the vicarious exhaustion exception “allows non-filing parties to join the suit
    of another similarly situated plaintiff who did file an administrative complaint against the same
    defendant.” Brooks v. Dist. Hosp. Partners, L.P., 
    606 F.3d 800
    , 804 (D.C. Cir. 2010). Vicarious
    exhaustion is only available for parties whose claims are “so similar to those asserted by the
    original plaintiff that no purpose would be served by requiring them to file independent charges.”
    Byrd v. District of Columbia, 
    807 F. Supp. 2d 37
    , 63 (D.D.C. 2011) (quoting 
    Brooks, 606 F.3d at 807
    ). In other words, the original administrative claim must “(1) put the employer-defendant on
    notice of all charges by the similarly situated plaintiff, and (2) provide the employer and the
    EEOC with an opportunity for administrative . . . resolution.” 
    Id. (citing Foster
    v. Gueory, 655
    
    29 F.2d 1319
    , 1322 (D.C. Cir. 1981)). In Cook v. Boorstin, the D.C. Circuit explained that “the
    critical factor in determining whether an individual Title VII plaintiff must file an
    [administrative] charge, or whether he may escape this requirement by joining with another
    plaintiff who has filed such a charge, is the similarity of the two plaintiffs’ complaints.” 
    763 F.2d 1462
    , 1466 (D.C. Cir. 1985) (quoting 
    Foster, 655 F.2d at 1322
    ); see also Byrd, 807 F.
    Supp. 2d at 63 (“The similarity of two claims is evaluated for whether the original filing
    performs the principal notice function of the EEOC filing requirement . . . .”).
    In this case, the District concedes that Mr. Morris and Mr. Ajakaiye have exhausted their
    administrative remedies.7 See Mem. Supp. Summ. J. at 16; Def.’s Material Facts ¶¶ 44, 47. The
    District, however, raises four objections to Plaintiffs’ reliance on vicarious exhaustion.
    First, the District argues that the EEOC charges filed by Mr. Morris and Mr. Ajakaiye
    only assert a claim of discrimination on behalf of themselves and other SSAs, not the non-SSA
    employees who were terminated in the RIF. See Reply Supp. Summ. J. at 12. A review of the
    relevant EEOC charges reveals that Mr. Morris and Mr. Ajakaiye both focused on the RIF’s
    impact on SSAs. See Mot. Summ. J., Exs. O–P, ECF No. 146-4. Of course, both men were
    SSAs and the majority of employees terminated by the RIF were SSAs. See Pls.’ Disputed Facts
    at 6 (stating that 57 of the 115 employees who received the RIF letter were SSAs). The relevant
    question here, is whether the EEOC charges “put the employer-defendant on notice of all charges
    7
    Plaintiffs also contend that there are “legitimate questions of material fact whether
    Plaintiffs’ prior counsel . . . filed EEOC charges on behalf of additional plaintiffs in this case.”
    See Pls.’ Disputed Facts at 1. Because the Court finds that Plaintiffs can rely on the EEOC
    charges filed by Mr. Morris and Mr. Ajakaiye, the Court does not need to consider that
    contention. The Court does note, however, that failure to exhaust administrative remedies is an
    affirmative defense, which the defendant bears the burden of pleading and proving in a Title VII
    case. See Davis v. District of Columbia, 
    949 F. Supp. 2d 1
    , 12 (D.D.C. 2013); see also Bowden
    v. United States, 
    106 F.3d 433
    , 437 (D.C. Cir. 1997). In other words, Plaintiffs do not bear the
    burden of disproving the application of the affirmative defense raised by the District.
    30
    by . . . similarly situated plaintiff[s].” 
    Byrd, 807 F. Supp. 2d at 63
    (citing 
    Foster, 655 F.2d at 1322
    ). Mr. Morris’s EEOC charge does just that. See Mot. Summ. J., Ex. P at 1. Mr. Morris
    described the letter he received from CFSA, which explained that he was being terminated
    “because of a reduction in force” despite the lack of any concerns about his job duties. 
    Id. Mr. Morris
    alleged that there was “no financial crisis” and that he was injured by CFSA “by
    being selected for discharge.” 
    Id. Mr. Morris
    also checked boxes indicating his allegations of
    discrimination based on race, color, national origin, age, and retaliation and described the charge
    as a class action charge. 
    Id. These allegations
    are common to all employees terminated in the
    RIF, not just SSAs. Although Mr. Morris went on describe particular complaints about the FSW
    position and the degree requirement, his general complaint about the RIF was sufficient to put
    CFSA “on notice of all charges” by non-SSA Plaintiffs. See 
    Byrd, 807 F. Supp. 2d at 63
    .
    Second, the District argues that the charges filed by Mr. Morris and Mr. Ajakaiye “only
    assert a claim based on their termination in the RIF,” and “cannot exhaust a distinct claim of
    discrimination based on the FSW bachelor’s degree requirement.” See Reply Supp. Summ. J. at
    12. The District is correct that a “party must exhaust . . . administrative remedies . . . for each
    discrete act of discrimination,” Dudley v. Washington Metro. Area Transit Auth., 
    924 F. Supp. 2d 141
    , 155–156 (quoting Lipscomb v. Winter, 
    577 F. Supp. 2d 258
    , 271 (D.D.C. 2008)). But the
    District misreads the relevant EEOC charges. In fact, both charges refer to the degree
    requirement, and thus exhaust a distinct claim of discrimination based on that policy. See, e.g.,
    Mot. Summ. J., Ex. O at 1 (“[CFSA] created a new position, Family Support Workers . . . and
    made attainment of a Bachelor’s Degree as a prerequisite to obtaining that position . . . .
    A greater proportion of the white employees do have a college degree . . . .”).
    31
    Third, the District argues that the relevant EEOC charges are not sufficiently similar to
    the claims raised by other Plaintiffs “in light of the individual decisions underlying the RIF and
    the subsequent hiring of FSW positions.” Reply Supp. Summ. J. at 13. But both EEOC charges
    address general grievances—that the RIF was generally discriminatory and that the FSW degree
    requirement was generally discriminatory. See Mot. Summ. J., Exs. O–P. Those general
    allegations of discrimination form the basis of Plaintiffs’ claims before this Court. This case is
    distinguishable from Byrd, for instance, where four employees alleged sexual harassment and
    retaliation by two male supervisors and the court concluded that the plaintiff’s complaint would
    require “a different factual inquiry and testimony from different witnesses.” Byrd, 
    807 F. Supp. 2d
    at 64. Unlike cases with “differences in the factual allegations pertaining to each plaintiff’s
    claims,” Peters v. District of Columbia, 
    873 F. Supp. 2d 158
    , 185 (D.D.C. 2012), courts have
    found vicarious exhaustion where “multiple plaintiffs’ claims arose from the same allegedly
    discriminatory practice presented to and analyzed by the EEOC,” 
    id. at 183
    (citing 
    Brooks, 606 F.3d at 807
    ). The relevant EEOC charges and the claims before this court arose from the same
    allegedly discriminatory practices, permitting vicarious exhaustion by the Plaintiffs.
    Finally, the District argues that Plaintiffs have provided “no authority for the proposition
    that a claim may be vicariously exhausted by someone who lacks standing . . . or is judicially
    estopped.” Reply Supp. Summ. J. at 13. The District, however, provides no authority to the
    contrary. The purpose of the vicarious exhaustion rule is to ensure that the employer has notice
    of claims and an opportunity to resolve them administratively, 
    Foster, 655 F.2d at 1322
    –23,
    while avoiding unnecessary EEOC filings, 
    Brooks, 606 F.3d at 807
    . Those principles are not
    tarnished when the party bringing the initial charge is subsequently barred from bringing their
    claim in court for another reason. Thus, the Court finds that subsequent and unrelated challenges
    32
    to a party’s ability to bring their exhausted claim in court do not prevent other Plaintiffs from
    relying on the initial EEOC charge for the purposes of vicarious exhaustion.
    For these reasons, the Court finds that Plaintiffs have shown that they vicariously
    exhausted their administrative remedies. The Court will permit Plaintiffs to rely on the EEOC
    charges filed by Mr. Morris and Mr. Ajakaiye, which raised sufficiently similar claims and
    fulfilled the notice function of the EEOC filing requirement
    4. Purported Abandonment of Claims
    The District argues that Ms. Dudley, Ms. Gray, Mr. Hailes, and Ms. Kelley have
    abandoned their Title VII claims through their answers to the District’s discovery requests. See
    Mem. Supp. Summ. J. at 16. Specifically, the District asked Plaintiffs to produce their right to
    sue letters from the EEOC. See Def.’s Material Facts ¶ 65. In response, these Plaintiffs stated
    that the request was irrelevant because they were not pursuing Title VII claims. 
    Id. ¶ 66.
    The District asserts that this response constituted abandonment of any Title VII claims. See
    Mem. Supp. Summ. J. at 16.
    In response, Plaintiffs argue that the District’s position is “based on [a] disputed
    interpretation” of the discovery response, and state that Plaintiffs “have since clarified and
    corrected” their response. See Opp’n Summ. J. at 32. These Plaintiffs’ updated response, which
    they served shortly after the District filed the pending motion for summary judgment, states that
    “Plaintiffs have not filed individual right to sue letters,” but they have “filed Title VII claims
    based upon” the right to sue letters and notices filed by other Plaintiffs in this action. Opp’n
    Summ. J., Ex. 17 at 1, ECF No. 148-6. The updated response was served pursuant to Federal
    Rule of Civil Procedure 26, which requires a party to supplement or correct its discovery
    33
    responses “in a timely manner if the party learns that in some material respect the disclosure or
    response is incomplete or incorrect.” Fed. R. Civ. P. 26(e)(1)(A).
    The District argues that this amendment was not timely, because it was served after the
    close of discovery and after the District filed its motion for summary judgment. See Reply Supp.
    Summ. J. at 13–14. The District does not, however, present any authority in support of its
    position that the amended responses were untimely. In fact, the District’s support for the
    principle that a party can abandon claims through discovery responses is relatively scanty. The
    District cites two cases, one from the Eastern District of Missouri and another from the Court of
    International Trade. See Mem. Supp. Summ. J. at 16. In the first, the court went on to consider
    the purportedly abandoned claims. See Casey-El v. Jordan, No. 05-0148, 
    2007 WL 2702654
    , at
    *2–3 (E.D. Mo. Sept. 12, 2007). In the second, the court’s analysis appears to rely on the fact
    that the plaintiff did “not deny nor address [its purported abandonment of its claims] in its
    response to defendant’s motion for dismissal.” Chrysler Corp. v. United States, 
    664 F. Supp. 527
    , 530–31 (Ct. Int’l Trade 1987).
    But Plaintiffs support their argument on this issue with even less backing. Aside from
    Federal Rule of Civil Procedure 26, Plaintiffs cite no other authority. See Opp’n Summ. J. at 32.
    Nevertheless, as the moving party, the District carries the burden of showing that it is “entitled to
    judgment as a matter of law.” Fed. R. Civ. P. 56(a). The District has not provided sufficient
    authority to show that Plaintiffs’ discovery response constitutes abandonment as a matter of law,
    nor has it provided any authority to show that the amended discovery response is untimely.
    Thus, the Court will deny the District’s motion for summary judgment on the Title VII claims of
    Ms. Dudley, Ms. Gray, Mr. Hailes, and Ms. Kelley.
    34
    5. Issue Preclusion and the Propriety of the RIF
    In their opposition to the District’s motion for summary judgment, Plaintiffs argue that
    the District should be precluded from arguing that the RIF was properly authorized. See Opp’n
    Summ. J. at 34. Plaintiffs correctly note that the determination of a legal or factual question in
    one action can be binding on subsequent actions, in certain circumstances. See 
    id. The Supreme
    Court has held that this principle, known as the doctrine of issue preclusion, may also apply
    “where a single issue is before a court and an administrative agency.” B & B Hardware, Inc. v.
    Hargis Indus., Inc., 
    135 S. Ct. 1293
    , 1303 (2015).
    Plaintiffs argue that Mr. Hunter, one of the Plaintiffs in this case, brought a petition to
    review the RIF before the District of Columbia’s Office of Employee Appeals (“OEA”) and
    OEA determined that the RIF was not properly authorized. Opp’n Summ. J. at 36 (citing In re
    Hunter v. Child and Family Services Agency, OEA Matter No. 240-0321 (Mar. 4, 2014)). In
    response, the District raised a number of arguments, including that applying issue preclusion in
    this case would be unfair in light of the disparate stakes of the two cases and that OEA only
    determined that the RIF was not authorized—not that the RIF had a discriminatory impact. See
    Reply Supp. Summ. J. at 2–3.
    This Court does not need to address these issues. After the parties completed summary
    judgment briefing, the Superior Court for the District of Columbia overturned the OEA’s
    decision. See Def.’s Not. Suppl. Auth., ECF No. 155 (attaching the Superior Court’s opinion).
    The Superior Court found “that OEA’s decision was clearly erroneous as a matter of law because
    the Director of CFSA had the authority to order the RIF without mayoral approval.” D.C. Child
    & Family Servs. Agency v. D.C. Office of Emp. Appeals, No. 14-1857, at *4 (D.C. Super. Ct.
    35
    April 15, 2016). In light of the Superior Court’s reversal, the OEA decision has no preclusive
    effect here.
    B. Plaintiffs’ Discrimination Claims
    This Court previously addressed Plaintiffs’ discrimination claims. See Davis v. District
    of Columbia, 
    949 F. Supp. 2d 1
    (D.D.C. 2013). As previously stated, the Court dismissed
    Plaintiffs’ disparate treatment theory based on the RIF, but allowed a related disparate impact
    theory to go forward. 
    Id. at 11.
    The Court also permitted Plaintiffs to go forward with both
    disparate impact and disparate treatment theories related to the FSW’s degree requirement. 
    Id. In brief,
    the Court statedthat the “disparate impact claims based on both the reduction in force
    and the educational requirements for Family Social Workers will go forward under the Human
    Rights Act, as they did under Title VII, as will the disparate treatment claim based on those
    degree requirements.” 
    Id. at 12.
    Now the District has moved for summary judgment on all of Plaintiffs’ remaining claims.
    The Court finds that there are no genuine disputes as to any material facts and that the District is
    entitled to judgment as a matter of law. Therefore, the Court will grant summary judgment for
    the District on Plaintiffs’ pending race and age discrimination claims under Title VII and the
    DCHRA.
    1. Title VII
    Title VII of the Civil Rights Act makes it unlawful for an employer to “to fail or refuse to
    hire or to discharge any individual . . . because of such individual’s race.” 42 U.S.C. § 2000e-
    2(a)(1). The statute therefore bars “both intentional discrimination and artificial, arbitrary, or
    unnecessary barriers to equal opportunity.” Segar v. Smith, 
    738 F.2d 1249
    , 1258 (D.C. Cir.
    1984). A Title VII plaintiff can prove that he was fired or was not hired “because of” his race
    36
    either by proving his employer’s discriminatory intent, or by showing that the decision resulted
    from a process that was “fair in form, but discriminatory in operation.” Griggs v. Duke Power
    Co., 
    401 U.S. 424
    , 431 (1971). In other words, a plaintiff can pursue two paths to prove
    discrimination: disparate treatment or disparate impact. See 42 U.S.C. § 2000e-2(k) (codifying
    disparate impact theory). The D.C. Circuit has explained that:
    Disparate treatment occurs when “[t]he employer simply treats some people less
    favorably than others because of their race, color, religion, sex, or national
    origin.” “Proof of discriminatory motive is critical” for such claims. Disparate
    impact claims, on the other hand, “involve employment practices that are facially
    neutral in their treatment of different groups but that in fact fall more harshly on
    one group than another and cannot be justified by business necessity.” “Proof of
    discriminatory motive . . . is not required under a disparate-impact theory.”
    Anderson v. Zubieta, 
    180 F.3d 329
    , 338 (D.C. Cir. 1999) (quoting Int’l Bhd. of Teamsters v.
    United States, 
    431 U.S. 324
    , 335 n.15 (1977) (internal citations omitted)).
    Even in disparate treatment cases a plaintiff is not required to present direct evidence of
    discriminatory intent. See Palmer v. Schultz, 
    815 F.2d 84
    , 90 (D.C. Cir. 1987). Instead,
    evidence of intent can be circumstantial, including evidence that is “entirely statistical in nature.”
    
    Id. (citing Segar,
    738 F.2d at 1278–79). Disparate impact plaintiffs can similarly use statistical
    evidence to prove that “observed, nonrandom disparities” in hiring, firing, or other significant
    employment decisions “were caused by a ‘facially neutral’ selection criterion that disadvantaged
    [the plaintiff class] more than [another class].” 
    Palmer, 815 F.2d at 114
    ; see also Aliotta v. Bair,
    
    614 F.3d 556
    , 565 (D.C. Cir. 2010) (“To establish a prima facie disparate impact claim . . . a
    plaintiff . . . need only offer statistical evidence of a kind and degree sufficient to show the
    employment decision disproportionately impacts” members of the plaintiff’s class.).
    Doctrinally speaking, then, the central distinction between a disparate impact case and a
    “pattern or practice” disparate treatment case is that only the latter requires proof of
    discriminatory intent. See 
    Anderson, 180 F.3d at 338
    ; see also 
    Palmer, 815 F.2d at 115
    n.23
    37
    (“[A] disparate treatment claim must prove both a disparity and discriminatory intent—even if
    proof of intent is circumstantial and the disparity itself raises an inference of intent.”). But if
    intent can be inferred from observed statistical disparities, the more practical distinction is that
    disparate impact plaintiffs identify particular employment practices that are allegedly responsible
    for those disparities, while “pattern or practice” plaintiffs do not. See 
    Palmer, 815 F.2d at 115
    (“Because appellants have specifically identified the [employment practice], and not the
    [employer’s discriminatory] intent, as causing the disparity . . . we will treat their claim
    concerning this disparity as relying solely on the disparate impact theory.”).
    2. The D.C. Human Rights Act
    Like Title VII, the D.C. Human Rights Act (“DCHRA”) makes it “an unlawful
    discriminatory practice” for an employer “[t]o fail or refuse to hire, or to discharge[ ] any
    individual” “wholly or partially for a discriminatory reason based upon the actual or perceived[ ]
    race” of that person. D.C. Code § 2-1402.11(a), (1). Unlike Title VII—and relevant to this
    case—the DCHRA also prohibits discrimination based on age. 
    Id. And because
    “[a]ny practice
    which has the effect or consequence of violating any of the provisions of this chapter shall be
    deemed to be an unlawful discriminatory practice,” D.C. Code § 2-1402.68, the DCHRA
    authorizes discrimination claims based on a theory of disparate impact. See Gay Rights
    Coalition of Georgetown Univ. Law Center v. Georgetown Univ., 
    536 A.2d 1
    , 29 (D.C. 1987)
    (en banc) (“As the legislative history demonstrates, the Council imported into the Human Rights
    Act, by way of the effects clause, the concept of disparate impact discrimination developed by
    the Supreme Court in Griggs v. Duke Power Co., 
    401 U.S. 424
    (1971).”); see also Esteños v.
    PAHO/WHO Fed. Credit Union, 
    952 A.2d 878
    , 887–88 (D.C. 2008).
    38
    The D.C. Court of Appeals “follow[s] cases construing Title VII in interpreting and
    applying the provisions of the DCHRA . . . to the extent that the acts use similar words and
    reflect a similar purpose.” 
    Estenos, 952 A.2d at 887
    . For the purposes of this case, neither of the
    parties suggests that Title VII and the Human Rights Act differ in any meaningful respect. See
    Mem. Supp. Summ. J. at 17, 23 (analyzing Title VII and DCHRA claims in tandem); Opp’n
    Summ. J. at 23 (“When analyzing cases under DCHRA, the District of Columbia customarily
    looks to federal anti-discrimination jurisprudence—specifically cases interpreting Title VII—for
    guidance.”); see also 
    Davis, 949 F. Supp. 2d at 12
    . Thus, the Court will consider Plaintiffs’ Title
    VII race discrimination claims and DCHRA race and age discrimination claims in tandem for
    each of Plaintiffs’ theories.
    3. Plaintiffs’ Disparate Impact Claim Based on the RIF
    The District contends that Plaintiffs cannot establish a prima facie case for disparate
    impact based on the RIF. First, the District argues that Plaintiffs have “failed to identify a
    facially neutral employment practice.” Mem. Supp. Summ. J. at 19. Second, the District argues
    that Plaintiffs’ statistical evidence is insufficient to demonstrate the existence of a disparate
    impact. 
    Id. at 20.
    Plaintiffs respond that the RIF itself is a facially neutral policy, and that it was
    not the result of subjective decision-making, as the District claims. See Opp’n Summ. J. at 37–
    40. Plaintiffs also argue that the statistical analysis put forward by their expert is sufficient to
    demonstrate a disparate impact. 
    Id. at 41.
    Because the Court finds that Plaintiffs have failed to
    identify a specific employment practice, the Court will grant summary judgment to the District
    on Plaintiffs’ disparate impact claims based on the RIF.
    As previously stated, disparate impact claims “involve employment practices that are
    facially neutral in their treatment of different groups but that in fact fall more harshly on one
    39
    group than another and cannot be justified by business necessity.” 
    Anderson, 180 F.3d at 338
    (quoting Int’l Bhd. of 
    Teamsters, 431 U.S. at 335
    n.15). To establish a prima facie disparate
    impact case, “the employee is ‘responsible for isolating and identifying the specific employment
    practices that are allegedly responsible for any observed statistical disparities.’” Smith v. City of
    Jackson, 
    544 U.S. 228
    , 241 (2005) (quoting Wards Cove Packing Co. v. Atonio, 
    490 U.S. 642
    ,
    656 (1989)). The Supreme Court has cautioned that the failure to home in on a specific practice
    could “result in employers being potentially liable for the ‘myriad of innocent causes that may
    lead to statistical imbalances.’” 
    Id. (quoting Wards
    Cove, 490 U.S. at 657
    ).
    Plaintiffs maintain that the “RIF was a neutral policy in that the reduction targeted one or
    more positions agency-wide.” Opp’n Summ. J. at 37. But numerous courts have reached the
    opposite conclusion. As a general rule, a plaintiff “cannot attack an overall decisionmaking
    process in the disparate impact context, but must instead identify the particular element or
    practice within the process that causes an adverse impact.” Stout v. Potter, 
    276 F.3d 1118
    , 1124
    (9th Cir. 2002).
    More specifically, the District has presented two cases that it contends stand for the
    proposition that a RIF cannot constitute a specific employment practice for disparate impact
    purposes if the RIF did not utilize a uniform selection criteria. See Leichihman v. Pickwick Int’l,
    
    814 F.2d 1263
    , 1269 n.5 (8th Cir. 1987) (“The [RIF] was not implemented through some facially
    neutral procedure, such as a height and weight requirement or an aptitude test, but was conducted
    through a series of subjective decisions eliminating certain positions in order to cut costs . . . a
    disparate impact model provides an inappropriate vehicle for analysis.”); Combs v. Grand
    Victoria Casino & Resort, No. 08-0414, 
    2008 WL 4452460
    , at *3 (S.D. Ind. Sept. 30, 2008)
    (rejecting a disparate impact claim where plaintiffs failed “identify a specific employment
    40
    practice or policy” in a termination of several employees). Plaintiffs attempt to distinguish these
    cases, by arguing, among other things that Leichihman involved a more rigorous reorganization
    process and that Combs involved plaintiffs who were terminated for disciplinary reasons.
    See Opp’n Summ. J. at 39–40.
    The core of Plaintiffs’ position, however, is that the RIF was not the result of targeted,
    subjective decision-making. 
    Id. To that
    end, Plaintiffs argue that the RIF was “supposedly
    driven by budget considerations.” 
    Id. at 3
    8. According to Plaintiffs, the goal of the RIF “was to
    broadly eliminate one or more positions in at least seven . . . offices.” 
    Id. Because the
    RIF
    touched on offices that “are so diverse in function, size, job qualifications . . . , and seniority
    status . . . there is no reasonable basis to assume that the RIF was anything but neutral.” 
    Id. On the
    surface, Plaintiffs’ position is contradictory. The undisputed facts show that the RIF made
    cuts across the agency, but those cuts were not equally distributed. The RIF left some positions
    or divisions relatively unscathed, while it completely eliminated other positions. In fact, cuts to
    just two positions constituted the majority of terminations in the RIF. See Def.’s Material Facts
    ¶ 20. Plaintiffs have no explanation for how a truly “neutral” RIF would lead to that result.
    At a deeper level, Plaintiffs’ argument misses the point. Plaintiffs must identify a
    “specific test, requirement, or practice . . . that has an adverse impact.” City of 
    Jackson, 544 U.S. at 241
    . Numerous courts that have considered this question have decided that simply pointing to
    a RIF generally is not sufficient. See, e.g., 
    Leichihman, 814 F.2d at 1269
    n.5; Powell v. Dallas
    Morning News L.P., 
    776 F. Supp. 2d 240
    , 259 (N.D. Tex. 2011), aff’d, 486 F. App’x 469 (5th
    Cir. 2012) (“Many courts have held that a plaintiff’s reliance on the undue subjectivity of the
    RIF termination process is not a proper basis for a disparate impact claim.”); Zawacki v. Realogy
    Corp., 
    628 F. Supp. 2d 274
    , 281 (D. Conn. 2009) (“[T]he Plaintiff alleges that the Defendant’s
    41
    procedures in conducting the RIFs were nothing more than a cover for behind-the-scenes,
    intentional discrimination against its older employees [but,] [t]here is no allegation of a facially
    neutral practice or policy that fell more harshly on the protected group.”); Mustelier v. Equifax,
    Inc., No. 08-1008, 
    2009 WL 890468
    , at *6 (D.P.R. Mar. 25, 2009) (“[Plaintiffs] allege that as a
    part of the restructuring process, older workers were overrepresented among those employees
    that were fired. However, they have not identified a facially neutral rule that is responsible for
    the disparity . . . .”); Kourofsky v. Genencor Int’l, Inc., 
    459 F. Supp. 2d 206
    , 214–15 (W.D.N.Y.
    2006) (finding that plaintiffs “simply allege, in conclusory fashion, that ‘the involuntary
    reduction in force had a disparate impact against [older employees]’” without identifying “any
    facially neutral policy that produced such a result” (internal citation omitted)).
    Plaintiffs cite a single case, Aliotta v. Bair, in support of their argument. See Opp’n
    Summ. J. at 37–38; see also Aliotta v. Bair, 
    614 F.3d 556
    (D.C. Cir. 2010). Plaintiffs argue that
    the D.C. Circuit’s decision in Aliotta leaves “no question that a RIF conducted due to budget cuts
    is a facially neutral employment practice.” Opp’n Summ. J. at 38. But Plaintiffs stretch Aliotta
    farther than it can reach. In that case, the Federal Deposit Insurance Corporation (“FDIC”)
    informed the employees of one of its divisions that it intended to cut the staff by more than half.
    
    Aliotta, 614 F.3d at 559
    . The plaintiffs alleged that the RIF had a discriminatory impact on
    employees aged 50 and older. 
    Id. at 560.
    The district court granted summary judgment for the
    FDIC, finding that the plaintiffs “failed to identify a specific employment practice that resulted
    in an adverse impact,” failed to establish sufficient statistical evidence of a disparate impact, and
    failed to rebut the FDIC’s reasonable explanation for the termination other than age. Aliotta v.
    Bair, 
    576 F. Supp. 2d 113
    , 127 (D.D.C. 2008). The D.C. Circuit affirmed the trial court’s
    decision. 
    See 614 F.3d at 558
    .
    42
    On appeal, the D.C. Circuit stated the general rule that a plaintiff “may also challenge the
    disparate impact of specific employment practices.” 
    Id. at 565.
    The court did not, however,
    provide analysis of whether the RIF in question constituted a sufficiently specific employment
    practice. Instead, the court stated that the plaintiffs had maintained their allegations that the RIF
    had a discriminatory impact on employees over the age of 50. 
    Id. at 565–66.
    The court
    explained, however, that the district court had concluded that the class members’ statistical
    evidence did not establish a disparate impact and that the FDIC had articulated a reasonable
    factor other than age for the terminations. 
    Id. It went
    unmentioned that the district court had
    also relied on an additional basis—that the RIF was not a sufficiently specific employment
    practice. The D.C. Circuit eventually went on to consider and reject the statistical analysis
    presented by the class members. 
    Id. at 569–70.
    Plaintiffs’ argument appears to be that the D.C. Circuit’s consideration of the statistical
    impact of the RIF means that the RIF must be a specific employment practice for purposes of a
    disparate impact analysis. That argument goes too far. The court did not analyze whether the
    RIF in that case constituted a specific employment practice, and it had no need to do so because
    it upheld the district court’s decision on other grounds. It would be surprising if the D.C. Circuit
    intended Aliotta to leave “no question that a RIF conducted due to budget cuts is a facially
    neutral employment practice,” Opp’n Summ. J. at 38, without discussing the Supreme Court’s
    statement that an “employee is ‘responsible for isolating and identifying the specific employment
    practices that are allegedly responsible for any observed statistical disparities.’” City of 
    Jackson, 544 U.S. at 241
    (quoting Wards 
    Cove, 490 U.S. at 656
    ). The court certainly explored other
    aspects of the City of Jackson decision. See 
    Aliotta, 614 F.3d at 561
    & n.4.
    43
    Plaintiffs have framed the RIF itself as a purportedly facially neutral policy. See, e.g.,
    Opp’n Summ. J. at 38 (“[T]here is no question that a RIF conducted due to budget cuts is a
    facially neutral employment practice that can be considered under disparate impact theory even
    when the RIF targets particular divisions of the agency.”). Plaintiff’s expert, Dr. Munro,
    similarly analyzed the RIF as a single employment practice. In her initial report, Dr. Munro
    analyzed the agency-wide termination rates for African Americans and employees 40 and over.
    See Mot. Summ. J., Ex. I. at 1–2, 6. The statistical analysis simply looked at employment figures
    before and after the RIF, and then repeated the analysis with the addition of the 18 employees re-
    hired as FSWs. 
    Id. at 1,
    4–5. In other words, Dr. Munro analyzed the RIF as if every employee
    stood an equal chance of termination. In her second report, Dr. Munro defended this approach,
    explaining that she “chose the analysis that assumed all jobs were equally at risk because there
    was no reason to believe all jobs were not equally at risk.” Mot. Summ. J., Ex. K. at 5.
    At times, Plaintiffs have hinted at a different framing of this issue. For instance, although
    Dr. Munro “stands by” her assumption that all positions were at equal risk in the RIF, she argues
    that, “if certain positions were more at risk (an assumption [she] would not yield to with a single,
    new declaration), then it appears . . . that those positions that were ‘targeted’ were also positions
    with notably higher minority representation.” 
    Id. at 20.
    Notably, however, Dr. Munro provides
    limited statistical support for this alternative view, and Plaintiffs do not develop this theory more
    fully in their briefing. Instead, Plaintiffs have framed the RIF itself as a neutral employment
    practice and presented statistical analysis that supports that framing. For instance, Plaintiffs
    might have framed the purported neutral employment practice as the elimination of the SSA and
    44
    SSW positions in favor of the degree-requiring FSW position and presented statistical evidence
    related to that framing.8 Plaintiffs did not elect to do so.
    The Supreme Court has held that “the employee is ‘responsible for isolating and
    identifying the specific employment practices that are allegedly responsible for any observed
    statistical disparities.’” City of 
    Jackson, 544 U.S. at 241
    (quoting Wards 
    Cove, 490 U.S. at 656
    ).
    Plaintiffs have failed to identify a specific employment practice and cannot make out a prima
    facie disparate impact case based on the RIF.9 Therefore, the Court will grant summary
    judgment to the District on Plaintiffs’ disparate impact claims based on the RIF under Title VII
    and the DCHRA.10
    4. Plaintiffs’ Disparate Impact Claim Based on the FSW Degree Requirement
    Following initial dispositive motions, the Court allowed Plaintiffs to go forward with
    their claims based on the FSW bachelor’s degree requirement under both a disparate impact
    theory and a disparate treatment pattern or practice theory. See Davis v. District of Columbia,
    
    949 F. Supp. 2d 1
    , 12 (D.D.C. 2013). The District now argues that it is entitled to summary
    judgment on Plaintiffs’ disparate impact claim because undisputed statistical evidence shows that
    the FSW hiring process did not have a disparate impact on African-Americans or older
    8
    The Court takes no position on the strength of that possible argument.
    9
    In its opinion resolving the District’s motion to dismiss, the Court previously referred to
    the RIF as a facially neutral employment practice. See Davis v. District of Columbia, 949 F.
    Supp. 2d 1, 10 (D.D.C. 2013). The Court also noted that Plaintiffs’ “allegations regarding the
    reduction in force are somewhat harder to unpack, since the plaintiffs do not discuss the criteria
    on which the reduction in force was based, nor make allegations about its structure.” 
    Id. at 11.
    Following briefing and argument on this question, the Court finds that the RIF is not a specific
    employment practice for the purposes of a disparate impact analysis.
    10
    Because Plaintiffs fail to identify a specific employment practice, the Court need not
    consider whether Plaintiffs’ statistical evidence is sufficient to demonstrate a disparate impact.
    45
    applicants. See Mem. Supp. Summ. J. at 23. The Court agrees, and will therefore grant
    summary judgment in favor of the District on this issue.
    To establish a prima facie case of disparate impact, the plaintiff must show that a facially
    neutral employment policy has a disproportionately adverse effect on a protected
    class. See Ricci v. DeStefano, 
    557 U.S. 557
    , 578 (2009) (citing 42 U.S.C. § 2000e–2(k)(1)(A));
    see also Griggs v. Duke Power Co., 
    401 U.S. 424
    , 431 (1971). First, a plaintiff must identify a
    specific employment practice—in this case the FSW degree requirement. See Smith v. City of
    Jackson, 
    544 U.S. 228
    , 241 (2005). Next, a plaintiff must establish causation, meaning
    “statistical evidence of a kind and degree sufficient to show that the practice in question has
    caused the exclusion of applicants for jobs or promotions because of their membership in a
    protected group.” Watson v. Fort Worth Bank & Tr., 
    487 U.S. 977
    , 994 (1988); see also 
    Ricci, 557 U.S. at 587
    (noting that a prima facie case of disparate impact requires “essentially, a
    threshold showing of a significant statistical disparity” (quoting Connecticut v. Teal, 
    457 U.S. 440
    , 446 (1982))). Evidence of causation must show that the challenged practice “select[s]
    applicants for hire or promotion in a . . . pattern significantly different from that of the pool of
    applicants.” Albemarle Paper Co. v. Moody, 
    422 U.S. 405
    , 425 (1975).
    In this case, the District has presented evidence that 18 employees terminated in the RIF
    were re-hired to the FSW position and all were African-American. See Def.’s Material Facts
    ¶¶ 41–42. The District has also presented evidence that 7 of the 18 re-hired employees were
    over the age of 40. 
    Id. ¶ 43.
    Plaintiffs only objection to these facts is that they claim Shikita
    Beander,11 who the District lists as a re-hire, “is not listed in the record and there is no evidence
    11
    The Court notes that the District appears to misspell Ms. Beander’s name. See Def.’s
    Reply Pls.’ Statement of Disputed Material Facts at 13.
    46
    that she is in fact African-American” or over 40. See Pls.’ Disputed Fact at 11–12. In fact, Ms.
    Beander’s name can be found in a table indicating that she is “Black, not of Hispanic origin.”
    See Mot. Summ. J., Ex. C, Ex. 1 at 1.12 The same table makes clear that Ms. Beander was under
    40 at the time of the RIF, but the District notes that Ms. Beander was not included in the group of
    seven employees aged 40 and over who were re-hired for FSW positions. See Def.’s Reply Pls.’
    Statement of Disputed Material Facts at 14, ECF No. 154-1. It is true that Ms. Beander does not
    appear on the list of FSWs as of May 2011, see Mot. Summ. J., Ex. C, Ex. 2, but she does appear
    on the list of active employees as of May 2010 and on the list of internal re-hires.13 
    Id. Ex. C,
    Exs. 1, 3.
    Plaintiffs dispute the re-hiring statistics provided by the District on the basis of Ms.
    Beander’s inclusion alone, see Pls.’ Disputed Fact at 11–12, but Plaintiffs make no reference to
    this dispute in their opposition to the motion for summary judgment. Of course, when
    considering a motion for summary judgement, the Court must consider whether “the movant
    shows that there is no genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). The
    District bears the initial burden of identifying portions of the record that demonstrate the absence
    of any genuine issue of material fact. See Fed. R. Civ. P. 56(c)(1); Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 323 (1986). In response, Plaintiffs, as the non-moving party, have the opportunity to
    identify specific facts that reveal a genuine issue that is suitable for trial, see Fed. R. Civ. P.
    56(c)(1); 
    Celotex, 477 U.S. at 324
    , but they cannot simply rest upon mere allegations or denials
    but must instead present affirmative evidence. See Laningham v. U.S. Navy, 
    813 F.2d 1236
    ,
    12
    The Court notes that this exhibit is difficult to read because of the small font size and
    poor reproduction.
    13
    Although the parties do not address this discrepancy, one possible explanation is that
    Ms. Beander left CFSA in the year after she was hired.
    47
    1241 (D.C. Cir. 1987). In this case, Plaintiffs simply assert that the District’s re-hiring statistics
    are in dispute, without providing any evidence other than a passing reference to Ms. Beander.
    Particularly in light of the fact that Ms. Beander can be found in the record, Plaintiffs fail to
    identify a material fact in dispute with regard to this issue.
    Furthermore, even if Ms. Beander were not African-American, the statistical change
    would not be relevant to the Court’s conclusion. A further review of the evidence in the record
    reveals that, as of May 2011, all 36 FSWs were African-American. See Mot. Summ. J., Ex. C,
    Ex. 2. Similarly, in May 2012, all 38 FSWs were African-American. 
    Id. These ongoing
    hiring
    records simply provide further evidence that the FSW degree requirement did not have a
    disparate impact on African-American applicants.
    The District’s expert, Dr. Bronars, evaluated only the 18 employees who were re-hired,
    and found “no possibility of racial disparity” in light of the fact that all 18 were African-
    American. Mot. Summ. J., Ex. J. ¶ 25. Dr. Bronars also found that the difference between the
    number of interested and qualified applications over the age of 40 who were terminated in the
    RIF was not significantly different from the number in that pool hired for the FSW position. 
    Id. ¶ 26.
    Aside from their objection to the inclusion of Ms. Beander, Plaintiffs have put forth no
    evidence to dispute the District’s statistics.
    In fact, in their brief argument on this point, Plaintiffs only contend that the FSW degree
    requirement had a disparate impact on African-Americans and older employees because “a large
    majority of terminated employees were not [re-]hired as FSW.” Opp’n Summ. J. at 43. This
    argument misunderstands the proper disparate impact analysis. To show causation, Plaintiffs
    must show that the FSW degree requirement “select[s] applicants for hire or promotion in a . . .
    pattern significantly different from that of the pool of applicants.” Albemarle 
    Paper, 422 U.S. at 48
    425. The undisputed evidence shows that all of CFSA’s initial FSW hires were African-
    American and a statistically proportionate number were 40 and above. Plaintiffs only dispute
    with this evidence, a mistaken argument assertion that one of the hires may not be African-
    American or 40 or older, would not significantly change the statistical analysis and is therefore
    not material.
    Plaintiffs must make out a prima facie case that the FSW degree requirement has a
    disparate impact, which requires “essentially, a threshold showing of a significant statistical
    disparity.” 
    Ricci, 557 U.S. at 587
    (quoting 
    Teal, 457 U.S. at 446
    ). They have failed to show any
    statistical disparity. Thus, the Court grants summary judgment for the District on Plaintiffs’
    disparate impact claims based on the FSW degree requirement under Title VII and the DCHRA.
    5. Plaintiffs’ Disparate Treatment Claim Based on the FSW Degree Requirement
    The District argues that, because Plaintiffs have failed to establish a disparate impact
    caused by the FSW degree requirement, Plaintiffs’ disparate treatment claim must also fail. See
    Mem. Supp. Summ. J. at 24–25. In response, Plaintiffs argue that the FSW was “essentially the
    same as the SSA and SWA positions” and that CFSA knew that “the bulk of SSAs did not have
    higher education degrees.” Opp’n Summ. J. at 44. Plaintiffs suggest these facts “create a strong
    inference on summary judgment that CFSA intentionally discriminated against plaintiffs on
    account of age and race.” 
    Id. As set
    forth above, the Court has found that Plaintiffs have not
    shown a disparate impact caused by the FSW degree requirement. Plaintiffs have not provided
    any other evidence, anecdotal or otherwise, to buttress their statistical evidence. See Palmer v.
    Schultz, 
    815 F.2d 84
    , 96 (D.C. Cir. 1987) (explaining that, while a plaintiff may rely entirely on
    statistical evidence, a “Title VII pattern and practice case[] need not rely on statistical evidence
    49
    alone”). Accordingly, the Court also grants summary judgment for the District on Plaintiffs’
    disparate treatment claims.
    In the Court’s prior opinion resolving the District’s motion to dismiss, the Court
    explained that Plaintiffs’ disparate treatment claim was based on a theory that the FSW degree
    requirement would have a disparate impact that “was so obviously foreseeable that it must have
    been intended.” Davis v. District of Columbia, 
    949 F. Supp. 2d 1
    , 10 (D.D.C. 2013). In other
    words, Plaintiffs “claim that it is possible to deduce intentional discrimination from evidence of
    disparate impact.” 
    Id. At that
    stage in the litigation, the Court concluded that “the allegation that
    the degree requirement had a foreseeably disparate impact unjustified by business necessity is
    specific enough to permit the court to infer liability on the facts pled.” 
    Id. at 11.
    A disparate treatment claim alleges that the defendant intentionally based an employment
    decision on a protected attribute of the plaintiff. See Int’l Bhd. of Teamsters v. United States,
    
    431 U.S. 324
    , 335 n.15 (1977). The claim can involve an isolated incident of discrimination
    against an individual, or, as in this case, allegations of a “pattern or practice” of discrimination
    affecting an entire purported class of individuals. See 
    id. at 336.
    To establish a prima facie
    pattern or practice case, “[t]he plaintiffs must, by statistical evidence, individual testimony, or a
    combination of the two, make a showing adequate to raise the inference that employment
    decisions were predicated on an illegal criterion.” McKenzie v. Sawyer, 
    684 F.2d 62
    , 71 (D.C.
    Cir. 1982). To succeed on a disparate treatment claim, “[p]roof of illicit motive is essential, but,
    especially in cases alleging class-wide discrimination, illicit motive may be inferred from a
    sufficient showing of disparity between members of the plaintiff class and comparably qualified
    members of the majority group.” Segar v. Smith, 
    738 F.2d 1249
    , 1265–66 (D.C. Cir. 1984). In
    fact, statistical evidence alone “may suffice to establish a prima facie case if the disparities in
    50
    treatment are significant.” Aliotta v. Bair, 
    614 F.3d 556
    , 562 (D.C. Cir. 2010) (citing Wagner v.
    Taylor, 
    836 F.2d 578
    , 592 (D.C. Cir. 1987); Ledoux v. District of Columbia, 
    820 F.2d 1293
    ,
    1303 (D.C. Cir. 1987)).
    Plaintiffs cannot make out a prima facie disparate treatment claim. As the District
    correctly notes, “the plaintiffs must make a prima facie showing that a racial disparity exists.”
    Moore v. Summers, 
    113 F. Supp. 2d 5
    , 19 (D.D.C. 2000). As the Court previously noted, the
    District presented evidence showing that all of CFSA’s initial FSW hires were African-American
    and that a statistically proportionate number of the new hires were 40 or older. 
    See supra
    Part
    IV.B.4. Plaintiffs have not presented evidence materially disputing those facts. Thus, Plaintiffs
    have failed to show any statistical disparity caused by the FSW degree requirement.
    Instead, Plaintiffs briefly argue that SSAs performed the functional equivalent of the
    FSW position and that “CFSA knew that the bulk of SSAs did not have higher education
    degrees.” Opp’n Summ. J. at 44. These disputed facts are not relevant here. The purported
    similarities between the responsibilities of SSAs and FSWs do nothing to show that the FSW
    degree requirement caused a disparity based on either race or age. In a disparate treatment case,
    “illicit motive may be inferred from a sufficient showing of disparity between members of the
    plaintiff class and comparably qualified members of the majority group,” Segar, 
    738 F.2d 1265
    –
    66, but the undisputed record before the Court does not show any disparity caused by the FSW
    degree requirement.14 For these reasons, the Court grants summary judgment for the District on
    14
    Again, the Court notes that Plaintiffs analyzed the RIF in terms of its broad impact on
    African Americans and employees 40 and over. 
    See supra
    Part IV.B.3. To the extent Dr.
    Munro—Plaintiffs’ expert—considered the impact of re-hiring terminated employees to the FSW
    position, her analysis considered how those re-hires changed the agency-wide statistics. See
    Mot. Summ. J., Ex. I at 4 (“The rehire of 18 African-Americans and 0 “other” race workers into
    the FSW position does not change the net results notably.”); 
    id. at 5
    (noting that 8 of the 18
    51
    Plaintiffs’ disparate treatment claims based on the FSW degree requirement under Title VII and
    the DCHRA.
    C. Class Certification
    Plaintiffs’ motion for class certification is currently pending before the Court. See Pls.’
    Mot. Class Certification. In general, district courts decide motions for class certification before
    turning to dispositive motions. See Hyman v. First Union Corp., 
    982 F. Supp. 8
    , 11 (D.D.C.
    1997). However, Federal Rule of Civil Procedure 23 gives the district courts “great discretion in
    determining the appropriate timing for such a ruling.”15 
    Id. The D.C.
    Circuit has explained that
    “[i]t is readily apparent that a decision on class certification cannot be made in a vacuum.”
    Wagner v. Taylor, 
    836 F.2d 578
    , 587 (D.C. Cir. 1987); see also Shaw v. Marriott Int’l, Inc., 
    570 F. Supp. 2d 78
    , 82 (D.D.C. 2008), aff’d in part and rev’d in part on other grounds, 
    605 F.3d 1039
    (D.C. Cir. 2010). In this case, deciding the summary judgment motion first will save time
    and resources and the parties will not suffer any prejudice as a result. The Court grants summary
    judgment for the District on all of Plaintiffs’ remaining claims. Therefore, there is no need for
    the Court to address class certification, and the Court will deny Plaintiffs’ motion as moot. See
    Shaw v. Marriott Int’l, Inc., 
    605 F.3d 1039
    , 1041 (D.C. Cir. 2010) (noting that the “district court
    granted summary judgment for Marriott, mooting the motion for class certification”).
    rehires into the FSW position were 40 or older, and concluding that “[i]ncorporating the rehire
    numbers to adjust the termination variable to make a net termination result makes the group
    difference more strongly statistically significant”). Plaintiffs did not frame the elimination of the
    SSA and SWA positions and their replacement with the FSW position as a single decision
    restructuring the relevant duties or present statistical evidence in that manner.
    15
    This discretion is also reflected in the 2003 amendments to the Federal Rules, which
    replaced the “requirement that the court determine whether to certify a class ‘as soon as
    practicable after commencement of an action’” with a requirement that a determination be made
    “at an early practicable time.” Fed. R. Civ. P. 23 advisory committee’s notes to 2003
    amendment.
    52
    V. CONCLUSION
    For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 146) is
    GRANTED and Plaintiffs’ Motion for Class Certification (ECF No. 144) is DENIED as moot.
    An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
    Dated: March 31, 2017                                        RUDOLPH CONTRERAS
    United States District Judge
    53
    

Document Info

Docket Number: Civil Action No. 2010-1564

Citation Numbers: 246 F. Supp. 3d 367, 2017 WL 1208388, 2017 U.S. Dist. LEXIS 49576

Judges: Judge Rudolph Contreras

Filed Date: 3/31/2017

Precedential Status: Precedential

Modified Date: 11/7/2024

Authorities (54)

Schlesinger v. Reservists Committee to Stop the War , 94 S. Ct. 2925 ( 1974 )

Janet Stout Juliana Nedd Sheila Wright Lee Harrison v. John ... , 276 F.3d 1118 ( 2002 )

Michael McCarthy Arthur Waskow v. Richard G. Kleindienst , 741 F.2d 1406 ( 1984 )

Aliotta v. Bair , 576 F. Supp. 2d 113 ( 2008 )

Zawacki v. Realogy Corp. , 628 F. Supp. 2d 274 ( 2009 )

Lipscomb v. Winter , 577 F. Supp. 2d 258 ( 2008 )

Alan McSurely v. John L. McClellan Thomas Ratliff, ... , 697 F.2d 309 ( 1982 )

Walter Burnes v. Pemco Aeroplex , 291 F.3d 1282 ( 2002 )

Eastman v. Union Pacific Railroad , 493 F.3d 1151 ( 2007 )

Califano v. Yamasaki , 99 S. Ct. 2545 ( 1979 )

Smith v. City of Jackson , 125 S. Ct. 1536 ( 2005 )

Monsanto Co. v. Geertson Seed Farms , 130 S. Ct. 2743 ( 2010 )

B&B Hardware, Inc. v. Hargis Industries, Inc. , 135 S. Ct. 1293 ( 2015 )

Powell v. Dallas Morning News L.P. , 776 F. Supp. 2d 240 ( 2011 )

alfred-u-mckenzie-individually-and-on-behalf-of-all-others-similarly , 684 F.2d 62 ( 1982 )

howard-rl-cook-individually-and-on-behalf-of-the-black-employees-of-the , 763 F.2d 1462 ( 1985 )

Brooks v. District Hospital Partners, L.P. , 606 F.3d 800 ( 2010 )

Henry W. Segar v. William French Smith, Attorney General, ... , 738 F.2d 1249 ( 1984 )

DaimlerChrysler Corp. v. Cuno , 126 S. Ct. 1854 ( 2006 )

Scott v. Harris , 127 S. Ct. 1769 ( 2007 )

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