The opinion of the court was delivered by: RICHEY
Pending before the Court are defendant's motion to dismiss or for summary judgment, plaintiffs' cross motion for summary judgment and defendant's motion to strike. After thoroughly considering the record in this case, the Court holds that defendant's motion to dismiss must be treated as a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and that defendant's motion for summary judgment is denied, and that plaintiffs' cross motion for summary judgment is denied and that defendant's motion to strike is denied.
This case arises out of plaintiffs' allegation that defendant's Career Path Policy ("CPP" or "Policy") violates the Age Discrimination in Employment Act ("ADEA" or "Act"), 29 U.S.C. § 633a. The Policy requires all Postal Inspectors who reach Level 23 to serve five years in one of thirteen major metropolitan areas. Under the CPP, vacancies in the major metropolitan areas are filled in one of three ways. Vacancies are first filled with voluntary lateral reassignments of Level 23 Postal Inspectors from non-major metropolitan areas. Vacancies are then filled with Level 21 Postal Inspectors within the Region and, if necessary, the Nation who nominate themselves for a promotion to a Level 23 Postal Inspector. Any remaining vacancies are finally filled by directed or involuntary transfers of the most senior Level 23 Postal Inspectors. See Defendant's Exhibit 1, Affidavit of A. R. Caggiano, Attachment 1 at 4. The CPP further provides that Postal Inspectors within five years of retirement who have served two years in a major metropolitan area and have relocated within the last two years as a result of reassignments are exempt from directed transfers. Finally, the CPP permits Postal Inspectors who have served five years in a major metropolitan area to transfer to any area they choose.
Plaintiffs' complaints arise from the fact that vacancies not filled by voluntary transfers or self-nomination transfers are filled by involuntary transfers of the most senior Postal Inspectors. As a result of this Policy, senior Postal Inspectors who received directed transfers to major metropolitan areas sought to enjoin their transfers because, among other things, the cost of living in major metropolitan areas is higher than in non-major metropolitan areas. The first challenge was brought by Charles Netherton in 1981. After filing an administrative complaint, Mr. Netherton filed suit in the Middle District of Florida seeking to enjoin his transfer from Orlando, Florida to 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
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, ...