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EVANS v. ATWOOD

March 22, 1999

DAVID P. EVANS, ET AL., PLAINTIFFS,
v.
J. BRIAN ATWOOD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Urbina, District Judge.

  MEMORANDUM OPINION
        Dismissing the Plaintiffs' Disparate Impact Claim
             and Denying the Defendants' Motion for
                        Summary Judgment.

I. INTRODUCTION

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.

II. BACKGROUND

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.

III. DISCUSSION

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 employment practices 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. 1701.

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., concurring).

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 ...


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