Moses v. Walker

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
JAMES D. MOSES, )
)
Plaintiff, )
)
v. ) 06-cv-01712 (RCL)
)
GENE L. DODARO, 1 )
Acting Comptroller General, )
)
Defendant. )
)
MEMORANDUM OPINION
I. INTRODUCTION
This case comes before the Court on the defendant’s renewed motion [126] to dismiss the
plaintiff’s first amended complaint [94] or, in the alternative, motion for summary judgment.
Also before the Court are the plaintiff’s cross-motion for reconsideration of various discovery
motions, cross-motion to strike the declaration of the defendant’s expert witness testimony [135],
motion [137] for leave to file a sur-reply2, and motion [142] for hearing on the status of the case.
Upon consideration of the filings, the entire record herein and the relevant law, the Court will
1
Pursuant to Federal Rule of Civil Procedure 25(d), Mr. Dodaro, in his official capacity as Acting
Comptroller General of the United States, is automatically substituted as the named defendant.
2
The plaintiff’s motion for leave to file a sur-reply will be denied. Sur-replies are rarely permitted, and
only “when a party is ‘unable to contest matters presented to the court for the first time’ in the last
scheduled pleading.” Ben–Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C. Cir. 2003). The plaintiff
states that his sur-reply is justified because the defendant’s reply contains material misstatements of both
fact and law. Pl.’s Mot. for Sur-Reply at 2. In arguing this point, the plaintiff states that “plaintiff’s
claims are entirely based upon ‘systematic disparate treatment’” and not a disparate impact theory of
recovery. Id. at 5. Because the only claims remaining for the plaintiff to litigate at the time of this filing
were his disparate impact claims, the Court denies this motion for leave to file a sur-reply as the
plaintiff’s disparate treatment claims were dismissed with prejudice in Judge Sullivan’s March 2011
Memorandum Opinion [117].
GRANT the defendant’s motion for summary judgment and DENY the plaintiff’s cross-motion
for reconsideration and motion for leave to file a sur-reply. Plaintiff’s cross-motion to strike and
motion for hearing on the status of the case are DISMISSED as moot.
II. PROCEDURAL POSTURE
Plaintiff James Moses filed this action on October 4, 2006 against the Comptroller
General of the United States, the head of the Government Accountability Office (“GAO”)
alleging, among other things, that the agency discriminated on the basis of age in violation of the
Age Discrimination in Employment Act of 1967, 29 U.S.C. 621 et seq. (“ADEA”). Plaintiff
seeks to represent a class of approximately 300 GAO auditors. In a December 2009
Memorandum Opinion [90], the Court (per Judge Sullivan) concluded that the plaintiff had
sufficiently stated a cause of action under the ADEA with respect to “two specific, discrete
allegedly discriminatory actions[.]” Mem. Op. at 48, Dec. 18, 2009. These claims alleged that
(1) the plaintiff and others were discriminatorily denied increases in cost of living allowances
(“COLA”), and (2) the GAO discriminatorily split the “Band II” employee pay classification into
two separate categories.
After the plaintiff filed an amended complaint, the defendant filed a renewed motion to
dismiss and/or for summary judgment [101]. In a March 2011 Memorandum Opinion [117], the
Court (Judge Sullivan) granted the defendant’s motion for summary judgment insofar as it
related to the plaintiff’s disparate treatment claim of discrimination; however, the Court
concluded that the “plaintiff’s claim of discrimination based upon a disparate impact theory of
recovery, to the extent he intended to assert one, remains intact.” Mem. Op. at 14, Mar. 31,
2011. The Court also denied both the plaintiff’s request for discovery and the plaintiff’s motion
for a continuance to seek discovery.
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III. BACKGROUND
The plaintiff was employed by the GAO from 1967 until his retirement in January 2010.
For purposes of determining pay ranges, the GAO classifies its employees according to a “Band”
system. At the time of his retirement, and at all times relevant to this litigation, the plaintiff was
employed as a “Band II” analyst.
In November 2005, the GAO restructured the Band II analyst and specialist workforce
into two distinct categories, Band IIA and Band IIB. To be eligible for the band with a higher
compensation cap (Band IIB), employees had to meet certain requirements with respect to their
time in Band II and recent performance appraisals. Def.’s Renewed Mot. to Dismiss 3-4 (“Def.’s
Renewed Mot.”). The plaintiff applied for placement into Band IIB, but his application was
subsequently denied. Id. at 6.
The parties disagree as to why the GAO restructured its Band II employees. The plaintiff
alleges that the objective was to “reshape the staff profile to eliminate a surplus of Senior Band II
GAO analysts and specialists.” Pl.’s Opp’n to Def.’s Renewed Mot. 4 (“Pl.’s Opp’n”); see also
Am. Compl. ¶ 8 (“[T]he manipulation of the ‘band system’ has been used by management to
purportedly justify announced de-facto demotions of persons over 50.”). The defendant asserts
that the restructuring was (1) intended to make clear that not all Band II employees perform the
same roles and responsibilities, (2) to ensure that all Band II employees receive equal pay for
work and equal value over time, and (3) to make sure that its pay system is consistent with
private employer’s compensation levels. Def.’s Renewed Mot. at 3.
3
The defendant asserts that the GAO determined whether an employee would be placed
into Band IIA or Band IIB on three “assessment factors.” 3 Id. at 4. These assessment factors
included (1) roles and responsibilities, (2) past performance, and (3) performance potential. Id.
An employee could not be selected for Band IIB unless he/she satisfied all three categories. Id.
In support of this assertion, the defendant has submitted the affidavits of the two individuals who
were responsible for making the final decision on whether an employee would be placed into
Band IIA or Band IIB, Gene Dorado, GAO’s Chief Operating Officer at the time, and Sallyanne
Harper, GAO’s Administrative Officer/Chief Financial Officer. Id.
Concurrent with the Band II restructuring, the GAO set a new scale of pay ranges for the
entire Band system. Id. at 8. Because the salary maximum for Band IIA was lower than the
previous maximum for Band II, some employees placed into Band IIA, including the plaintiff,
received a higher salary than the applicable maximum after the restructure. Id. No employees’
salaries were reduced as a result of this discrepancy, however, the GAO denied these employees,
again including the plaintiff, the 2006 COLA that was provided to a majority of the other GAO
employees. 4 Id.
On April 4, 2006 the plaintiff filed a Complaint of Discrimination with the GAO’s Office
of Opportunity and Inclusiveness that challenged his placement into Band IIB on the basis of age
and race but did not contain any reference to his denial of a COLA. Id. Ex. 14. The plaintiff
subsequently filed the instant action on October 4, 2006. Id. at 9. Additionally, some of the
harms complained by the plaintiff with respect to his salary have been rectified in the time
3
The GAO’s process of placing employees into either Band began with each employee submitting an
application explaining why he or she should be placed into Band IIB not Band IIA, followed by a review
and recommendation made by team directors. Def.’s Renewed Mot. at 4.
4
The COLA denied to the plaintiff amounted to a 2.6 percent increase in pay. The plaintiff was similarly
denied his 2007 COLA but has not asserted a claim based upon this denial.
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between the initial filing and present day. First, in March 2007, the plaintiff was promoted to the
Band IIB category. Second, Congress enacted the Government Accountability Act of 2008 in
September 2008, which directed the GAO to raise the salaries of employees who had been
denied their COLA in 2006 and 2007 to the level they would have been receiving had they been
granted the initial COLAs. Pub. L. No. 110-323, 122 Stat. 3539 § 3(c) (Sept. 22, 2008). Further,
Congress directed the GAO to award those same employees a lump sum payment equal to the
sum of money (plus 4 percent) they would have received had they been granted the COLAs
when they were effectuated. See id. § 3(d). The plaintiff’s salary was subsequently increased by
$3,323, and he received a lump sum payment of $9,751.87.
IV. ANALYSIS
A. Defendant’s Motion for Summary Judgment
The plaintiff alleges that the GAO’s Band II restructuring resulted in a disproportionate
number of older employees being placed in Band IIA while favoring younger employees, and
additionally resulted in older employees being denied their 2006 COLA in violation of the
ADEA. See Am. Compl. ¶ 63. The defendant asserts that the Court lacks jurisdiction to hear
this claim because the ADEA does not permit suits brought under the theory of disparate impact
against federal employers. Def.’s Renewed Mot. at 15. The defendant additionally asserts the
affirmative defense that the alleged adverse impact, if present, was the result of reasonable
factors other than age. Id. at 21.
The ADEA makes it unlawful for an employer to discriminate against any employee or
potential employee on the basis of age except “where age is a bona fide occupational
qualification reasonably necessary to the normal operation of the particular business, or where
the differentiation is based on reasonable factors other than age.” 29 U.S.C. § 623(f)(1). The
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Supreme Court has fashioned two separate models whereby an aggrieved individual may seek to
redress a claim of discrimination—the disparate treatment and the disparate impact theories of
liability. A disparate treatment claim will lie when an individual is treated differently by an
employer on the basis of a protected characteristic. Int’l Bhd. of Teamsters v. United States, 431
U.S. 324, 335-36 (1977). In contrast, a disparate impact claim exists when an employment
practice, though neutral on its face in its treatment of different groups, falls more harshly on one
group than another and cannot be justified by business necessity. Unlike a disparate treatment
claim, plaintiffs asserting a disparate impact claim need not establish a discriminatory motive on
the part of the employer. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993).
The availability of disparate treatment claims under the ADEA is well settled, see Trans
World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985), as well as disparate impact claims against
non-federal employers pursuant to 29 U.S.C. § 623(f)(1), see Smith v. City of Jackson, 544 U.S.
228 (2005); however neither the Supreme Court nor the D.C. Circuit has addressed the issue of
whether the ADEA authorizes disparate impact claims against the federal government. Koger v.
Reno, 98 F.3d 631, 639 n.2 (D.C. Cir. 1996) (declining to decide whether a disparate impact
claim brought against the federal government under the ADEA was legally cognizable because
the evidence presented failed to support a prima facie case of disparate impact); Arnold v. United
States Postal Serv., 863 F.2d 994, 995-96 (D.C. Cir. 1988).
Assuming arguendo that a disparate impact claim is legally cognizable against a federal
employer, 5 the plaintiff has not met the standard for bringing such a claim. A claim that a
5
The D.C. District Court is divided on whether the ADEA authorizes disparate impact claims against the
federal government. See, e.g., Silver v. Leavitt, 2006 WL 626928 (D.D.C. 2006) (Bates, J.) (holding that
Congress has not waived sovereign immunity for disparate impact claims against federal employers given
that Smith specifically limited its holding to disparate impact claims comparable to Griggs—a non-federal
employer—and the Supreme Court’s acknowledgement that the ADEA varies distinctively from Title
VII); but see Breen v. Peters, 474 F. Supp. 2d 1, 6 (D.D.C. 2007) (Roberts, J.) (stating that “the plain
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facially neutral employment practice disproportionately imposed an injury on older employees
may raise a rebuttable inference of disparate impact, but it is not enough to prevail. Breen v.
Mineta, 2005 WL 3276163 at *7 n.6 (D.D.C. Sept. 30, 2005) (Roberts, J.). The defendant has
the opportunity to assert the affirmative defense that the alleged adverse impact was attributable
to a reasonable factor other than age. City of Jackson, 544 U.S. at 241. The burden of
persuasion for this affirmative defense falls on the employer. Meacham v. Knolls Atomic Power
Lab., 554 U.S. 84, 128 (2008). A plaintiff then has the opportunity to rebut the reasonable factor
other than age by demonstrating that the factors offered by the defendant are unreasonable. See
e.g., City of Jackson, 544 U.S. at 243 (noting that the reasonable factors other than age defense
does not permit a rebuttal that other reasonable methods not resulting in a disparate impact were
available).
Here, the record shows that the defendant put forth specific reasons for restructuring the
Band II pay scale. The defendant additionally submitted factors such as length of time in the
position, roles and responsibilities of the employee, past performance, and potential performance
as reasonable factors other than age for deciding which employees were placed into Band IIB.
Further, the defendant asserts that the GAO relied on these factors when deciding which
employees would receive a COLA in 2006 by stating that “providing a COLA to these
employees would undercut the purpose of the Band II restructuring . . . which was to ensure that
employees were paid at market rates.” Plaintiff does not respond to these arguments, and it is
not the Court’s duty to supply these arguments in the plaintiff’s stead and then rule on them. In
his opposition to the defendant’s motion for summary judgment, plaintiff merely argues that no
discovery has been permitted, and additionally, that the statistical data submitted by the
language of § 633a(a) does not support the distinction between disparate treatment and disparate
impact[,]” and Congress has waived sovereign immunity).
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defendant’s expert witness arguing that no adverse impact occurred is faulty. Because the
plaintiff does not address the affirmative defense in his response, the Court will treat it as
conceded. Ray v. F.B.I., 2007 WL 1404445 *2 (D.D.C. May 10, 2007) (Lamberth, J.) (“When a
plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised
by the defendant, a court may treat those arguments that the plaintiff failed to address as
conceded.”) (citations omitted). Defendant’s motion for summary judgment will therefore be
granted, and an Order consistent with this Memorandum Opinion will be issued separately. In
light of the Court’s decision on the defendant’s motion for summary judgment, the plaintiff’s
Motion to Strike the defendant’s expert witness is moot.
B. Plaintiff’s Motion for Reconsideration
The plaintiff also requests that the Court reconsider its decision denying him discovery in
the previously dismissed disparate treatment claims. The plaintiff argues that “[t]his case is
bereft of discovery, from its beginning, in 2006, until now.” Pl.’s Opp’n at 9. To clarify, the
plaintiff has not—as to the current summary judgment motion—complied with Rule 56(d) and
has only argued for discovery that goes to the disparate treatment claims, not the disparate
impact claims.
A district court may revise its own interlocutory rulings “at any time before the entry of
judgment adjudicating all the claims and all the parties' rights and liabilities.” Fed. Civ. P. 54(b).
The standard of review for interlocutory orders differs from the standard of review for final
judgments under Federal Rules of Civil Procedure 59(e) and 60. See, e.g., Campbell v. United
States Dept. of Justice, 231 F.Supp.2d 1, 7 (D.D.C. 2002) (citing cases). The primary reasons for
amending an interlocutory ruling pursuant to Rule 59(e) are “an intervening change of
controlling law, the availability of new evidence, or the need to correct a clear error or prevent
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manifest injustice.” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (internal
quotation omitted). The Court may reconsider any interlocutory ruling “as justice requires.”
Childers v. Slater, 197 F.R.D. 185, 190 (D.D.C. 2000) (quoting Fed. R. Civ. P. 60(b) Advisory
Comm. Notes). Motions for reconsideration “are not simply an opportunity to reargue facts and
theories upon which a court has already ruled.” Black v. Tomlinson, 235 F.R.D. 532, 533
(D.D.C. 2006) (internal quotations omitted).
The Court previously denied the plaintiff’s requests for discovery stating, “[p]laintiff has
failed to demonstrate the necessity of discovery to oppose defendant’s motion . . . . He merely
asserts that disclosure of various information ‘would furnish evidence determinative of the
relevant facts at issue in this action.’” Mem. Op. at 14, Mar. 31, 2011. The Court finds that the
arguments made by the plaintiff in support of the current motion are merely rehashing previous
arguments already rejected by this Court. Additionally, the plaintiff identifies no intervening
change of controlling law and no new evidence that was previously unavailable. Accordingly,
the plaintiff’s motion for reconsideration is DENIED.
V. CONCLUSION
For the foregoing reasons, the Court GRANTS the defendant’s motion [126] for
summary judgment and DENIES the plaintiff’s cross-motion [135] for reconsideration and
motion [137] for leave to file a sur-reply. The Court additionally DISMISSES the plaintiff’s
cross-motion [135] to strike and motion [142] for hearing on the status of the case as moot.
Signed by Royce C. Lamberth, Chief Judge, on January 12, 2012.
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