The opinion of the court was delivered by: Urbina, District Judge.
Dismissing the Plaintiffs' Disparate Impact Claim
and Denying the Defendants' Motion for
This case comes before the court on the defendants' motion to
dismiss the plaintiffs' disparate impact claim, on the
plaintiffs' motion for partial summary judgment as to liability
on the disparate impact claim, and on the defendants' motion
for summary judgment. The court concludes that the ADEA does
not allow for suits brought on a disparate impact theory.
Therefore, the court grants the defendants' motion to dismiss
the plaintiffs' disparate impact claim and denies as moot the
plaintiffs' motion for partial summary judgment. The court also
concludes that a genuine issue of material fact exists as to
whether the defendants discriminated against the plaintiffs on
the basis of their age in the RIF. Accordingly, the court
denies the defendants' motion for summary judgment.
On September 27, 1996, the USAID terminated the employment of
ninety-one employees as the culmination of a RIF effort. (2d
Am. Compl. at ¶¶ 1, 14.) The plaintiffs, thirty-seven of the
terminated employees, brought suit on behalf of themselves and
others similarly situated against the USAID and its
Administrator, J. Brian Atwood. In their class action suit the
plaintiffs claimed that the USAID discriminated on the basis of
age and did not accord its older workers equal treatment with
younger workers. (2d Am. Compl. at ¶ 1.) The court certified
the class of former Foreign Service employees who had obtained
the age of forty years or older at the time of their selection
for separation. (Document No. 22; see 2d Am. Compl. ¶ 9.)
The plaintiffs claim discrimination under theories of both
disparate impact and disparate treatment and request
declaratory and injunctive relief, back pay, attorney fees, and
costs. (2d Am Compl. at 14-15.) The defendants have moved to
dismiss the disparate impact claim and for summary judgment on
the disparate treatment claim. The plaintiffs have moved for
partial summary judgment on the disparate impact claim.
A. The Disparate Impact Claim
The plaintiffs allege that the USAID selected employees from
higher grade levels for reduction, thereby resulting in the
termination of a vastly disproportionate number of older
employees, while protecting entire groups of younger employees
from the reduction. (2d Am.Compl. ¶¶ 1, 15-16.) In this
respect, 96 of the 97 Foreign Service employees originally
selected for the RIF had reached 40 years of age. (2d Am.Compl.
¶ 9.) The defendants assert that the ADEA does not permit suits
brought under the theory of disparate impact. (Mem. in Supp. of
Defs.' Mot. to Dismiss at 1.)
Before a court may decide the merits of a case, the court
must first have jurisdiction to hear it. See Kehr Packages,
Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.), cert.
denied, 501 U.S. 1222, 111 S.Ct. 2839, 115 L.Ed.2d 1007 (1991)
(citing Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed.
939 (1946)). The plaintiff bears the burden of persuasion to
establish subject matter jurisdiction by a preponderance of the
evidence. See Darden v. United States, 18 Cl. Ct. 855, 859
(1989); Kehr, 926 F.2d at 1409; Boudreau v. United States,
53 F.3d 81, 82 (5th Cir. 1995), cert. denied, 516 U.S. 1071, 116
S.Ct. 771, 133 L.Ed.2d 724 (1996).
In general terms, a disparate impact claim involves
that appear 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. See
Hazen Paper Co. v. Biggins, 507 U.S. 604, 609, 113 S.Ct. 1701,
123 L.Ed.2d 338 (1993) (citing Teamsters v. United States,
431 U.S. 324, 335-336, n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396
(1977)). Disparate impact claims do not require proof of
discriminatory motive. See Hazen Paper, 507 U.S. at 609, 113
S.Ct. 1701. Disparate treatment, by contrast, involves the
allegation that the employer treated a person (or some people)
less favorably than others, because of race, color, religion,
or another protected characteristic. See Hazen Paper, 507 U.S.
at 609, 113 S.Ct. 1701. The "most easily understood type of
discrimination," disparate treatment, requires proof of
discriminatory motive. Hazen Paper, 507 U.S. at 609, 113 S.Ct.
The Supreme Court first recognized the disparate impact
theory in the Title VII case of Griggs v. Duke Power Co.,
401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Pamela S. Krop,
Age Discrimination and the Disparate Impact Doctrine, 34 Stan.
L.Rev. 837, 837 n. 5 (1982). The Supreme Court has not decided
whether the disparate impact theory extends to ADEA claims.
"[W]e have never decided whether a disparate impact theory of
liability is available under the ADEA, and we need not do so
here." Hazen Paper, 507 U.S. at 609, 113 S.Ct. 1701 (citations
omitted). Additionally, the Court noted that good reasons exist
for not recognizing such a claim.
[N]othing in the Court's opinion should be read as
incorporating in the ADEA context the so-called
"disparate impact" theory of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e to
2000e-17. As the Court acknowledges, ante at 1706,
we have not yet addressed the question of whether
such a claim is cognizable under the ADEA, and
there are substantial arguments that it is improper
to carry over disparate impact analysis from Title
VII to the ADEA.
Hazen Paper, 507 U.S. at 618, 113 S.Ct. 1701 (Kennedy, J.,
In Hazen Paper the Court held that when an employer acts on
the basis of a factor empirically correlated with age, such as
pension status or seniority, the employer does not violate the
ADEA. See Hazen Paper, 507 U.S. at 608-609, 113 S.Ct. 1701. The
Court reasoned that once the employer based its decision on
factors other than age, the problem of inaccurate and
stigmatizing stereotypes disappears. See Hazen Paper, 507 U.S.
at 611, 113 S.Ct. 1701. "Because age and years of service are
analytically distinct, an employer can take account of one
while ignoring the other, and thus it is incorrect to say that
a decision based on years of service is necessarily `age
based.'" Hazen Paper, 507 U.S. at 611, 113 S.Ct. 1701.
The District of Columbia Circuit has twice looked at the
issue of whether the disparate impact theory extends to ADEA
claims, and in each case the circuit court has ultimately
decided not to rule on the issue. In Arnold v. United States
Postal Serv., 863 F.2d 994, 995-96 (D.C. Cir. 1988), cert.
denied, 493 U.S. 846, 110 S.Ct. 140, 107 L.Ed.2d 99 (1989), the
plaintiffs complained that a requirement that the most senior
postal inspectors must transfer to chronically understaffed
offices had a disparate impact on postal inspectors over the
age of forty. The D.C. Circuit concluded that it need not rule
on whether the disparate impact theory extends to the ADEA
because the merits did not support a finding for the
plaintiffs' disparate impact claim. Id. at 998. "We do not
decide whether the [disparate impact] test is applicable to
ADEA cases because we conclude that the [Post Office plan] does
not have a disparate impact on postal inspectors who are forty
years of age and older." Similarly, in Koger v. Reno,
98 F.3d 631, 639 n. 2 (D.C. Cir. 1996), the D.C. Circuit ...