New York. See Complaint para. 5, Netherton v. United States Postal Service, Civ. No. 86-2291 (filed Sept. 28, 1982) (" Netherton "). The motion to enjoin was denied on October 1, 1982. A motion to dismiss by defendant was also denied and a stay was issued on June 17, 1983. Meanwhile, a number of administrative complaints, including Mr. Netherton's, were being processed. On August 30, 1983, a Final Agency Decision was issued, holding that the CPP did not violate the ADEA. The complainants appealed to the Equal Employment Opportunity Commission ("EEOC").
During the challenges to the CPP brought by the Postal Inspectors in Florida, a second group of Postal Inspectors filed similar administrative complaints. On October 12, 1984, a second Final Agency Decision held that the CPP did not violate the ADEA. That decision was also appealed to the EEOC.
Ultimately the EEOC denied the appeals. Subsequently the stay was lifted in the Netherton case and a similar case, Arnold v. United States Postal Service, Civ. No. 85-2571 (filed Aug. 13, 1985) (" Arnold "), was filed on August 13, 1985, in the District of Columbia. In an effort to consolidate the cases, a motion to transfer was filed by plaintiffs in the Netherton case on August 19, 1985. Defendant opposed the motion to transfer and on September 10, 1985, filed a motion for class certification. The Netherton case was transferred from the Middle District of Florida to this Court on August 8, 1986, and the lawsuits were consolidated on September 16, 1986, because of the common questions of law and fact and the identity of parties.
This consolidated lawsuit, filed by present and former Postal Inspectors, alleges that the Policy had a disparate impact on Postal Inspectors 40 years of age and over and discriminated against them because of their age. Specifically, plaintiffs challenge the directed transfers of the most senior Postal Inspectors as a violation of the ADEA. Plaintiffs contend that the Policy caused directed transfers of senior Postal Inspectors, caused some senior Postal Inspectors to resign and caused other senior Postal Inspectors to voluntarily transfer to major metropolitan areas of their choice to avoid directed transfers to less desirable major metropolitan areas. The Court must now decide the motions before it.
III. DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED MUST BE TREATED AS A MOTION FOR SUMMARY JUDGMENT BECAUSE MATTERS OUTSIDE THE PLEADINGS WERE PRESENTED TO AND WERE CONSIDERED BY THE COURT
If on a motion to dismiss for failure to state a claim upon which relief can be granted matters outside the pleadings are presented to and considered by the Court, the motion must be treated as one for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Fed. R. Civ. Pro. 12(b). Defendant has submitted and the Court has considered with defendant's motion to dismiss affidavits and documentary evidence. Therefore, Rule 12(b) requires the Court to treat the motion to dismiss as a motion for summary judgment pursuant to Rule 56. The Court will first consider defendant's motion for summary judgment. See Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2720 (cross motions for summary judgment should be considered separately). If "there is [a] genuine issue as to any material fact [or defendant is not] entitled to judgment as a matter of law," defendant's motion must be denied. Fed. R. Civ. Pro. 56(c).
IV. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON THE DISPARATE IMPACT ISSUE MUST BE DENIED BECAUSE PLAINTIFFS MAY PROVE A VIOLATION OF THE ADEA UNDER A THEORY OF DISPARATE IMPACT AND THERE IS A GENUINE ISSUE OF MATERIAL FACT AS TO WHETHER THE POLICY HAD A DISPARATE IMPACT ON PLAINTIFFS
Defendant argues that it is entitled to summary judgment on two grounds -- that plaintiffs are not permitted to prove a violation of the ADEA by establishing that the Policy had a disparate impact on plaintiffs and, even if disparate impact analysis is permissible, that the CPP did not have a disparate impact on plaintiffs. For the reasons that follow, the Court holds that plaintiffs may prove a violation of the ADEA by establishing a disparate impact and that there is a genuine issue of material fact as to whether the CPP had a disparate impact on plaintiffs.
A. Because the Remedial Language and Purpose of Title VII and the ADEA Are Identical and the Rationale of Griggs v. Duke Power Co., the Case in Which the Supreme Court Formulated the Disparate Impact Analysis Under Title VII, Mandates the Application of the Disparate Impact Analysis Under the ADEA, This Court Must Hold, As Every Court That Has Addressed the Issue Has Held, That the Disparate Impact Analysis Developed Under Title VII Is Also Applicable Under the ADEA
Plaintiffs complain that the CPP violates the ADEA because it has a disparate impact on Postal Inspectors 40 years of age and over. See Complaint para. 5, Netherton v. United States Postal Service, Civ. No. 86-2291 (filed Sept. 28, 1982); Complaint para. 27, Arnold v. United States Postal Service, Civ. No. 85-2571 (filed Aug. 13, 1985). The final agency decisions, however, held that the disparate impact analysis formulated in Griggs v. Duke Power Co., 401 U.S. 424, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971), a race discrimination case under Title VII, is not applicable to cases brought pursuant to the ADEA. Arnold Complaint, Exhibit 2 at 7-13 & Exhibit 5 at 5-12. This Court disagrees. Because the remedial language and purpose of Title VII and the ADEA are identical and the rationale of Griggs v. Duke Power Co., mandates the application of the disparate impact analysis under the ADEA, this Court agrees with every other court that has addressed the issue that the disparate impact analysis developed under Title VII is applicable to cases brought under the ADEA.
1. The Rationale of Griggs v. Duke Power Company, the Case in Which the Supreme Court Formulated the Disparate Impact Analysis Under Title VII, Mandates the Application of the Disparate Impact Analysis Under the ADEA
Prior to the enactment of Title VII, applicants seeking a job in any department other than the Labor Department of the Duke Power Company had to have a high school diploma and receive a passing grade on two aptitude tests. The result was that blacks were hired only in the Labor Department. The highest paying jobs in the Labor Department paid less than the lowest paying jobs in the other departments. Beginning in 1965, the company also required all employees who desired to transfer out of the Labor Department to have a high school diploma and to pass the two aptitude tests. Although these requirements applied equally to blacks and whites, they adversely affected a disproportionate number of blacks. There was no showing that the company had an invidious intent to discriminate against blacks in adopting these requirements. Nevertheless, the Supreme Court held that the requirements were invalid under Title VII because they had a disparate impact on blacks and were not shown to be related to job performance. See Griggs v. Duke Power Co., 401 U.S. 424, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971).
The Supreme Court in Griggs formulated the disparate impact analysis under section 703(a)(2) of Title VII, which states:
It shall be an unlawful employment practice for an employer . . . to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.
The Supreme Court stated that "the objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees." Griggs, 401 U.S. at 429-30 (emphasis added); see also Connecticut v. Teal, 457 U.S. 440, 447, 73 L. Ed. 2d 130, 102 S. Ct. 2525 (1982) (explaining the basis for the Supreme Court's formulation of the disparate impact analysis in Griggs). The Court concluded that Congress intended that the statute require "the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously. . . . ." Griggs, 401 U.S. at 431 (emphasis added). Thus, "Congress directed the thrust of the Act to the consequences of employment practices, not simply to the motivation" as further evidenced by the fact that Congress placed on the employer the burden of showing that a job requirement has a manifest relationship to the job. Id. at 432 (emphasis in original).
2. Because the Language and Purpose of the ADEA Are Identical to the Language and Purpose of Title VII, the Disparate Impact Analysis Under Title VII Is Applicable to the ADEA
Section 623(a)(2) of the Age Discrimination in Employment Act states that:
It shall be unlawful for an employer to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age . . . .