The opinion of the court was delivered by: Richard W. Roberts United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs are a proposed class comprised of flight service air traffic control specialists who are age 40 or older and are current or former employees of the Federal Aviation Administration ("FAA") of the Department of Transportation ("DOT"). Plaintiffs allege that the FAA and DOT discriminated against them by targeting their jobs for outsourcing and terminating plaintiffs' federal employment in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 633a. Defendants have moved under Fed. R. Civ. P. 12(b)(1) to dismiss plaintiffs' claim for lack of jurisdiction. Because this court has jurisdiction over plaintiffs' ADEA claims, defendants' motion to dismiss will be denied. Defendants have moved in the alternative for summary judgment, arguing that plaintiffs have failed to establish a prima facie case of age discrimination. Because defendants have not demonstrated the absence of a genuine issue of material fact, defendants' motion for summary judgment will be denied.
In response to the Federal Activity Inventory Reform Act of 1998, the Office of Management and Budget Circular No. A-76, and President Bush's 2001 Competitive Sourcing Initiative, the FAA determined that the air traffic control activities plaintiffs had historically performed for the FAA were commercial in nature and could be provided by a private entity at a cost savings without degrading the service. This decision was based on multiple studies conducted by FAA personnel and external consultants. The FAA received competitive contract proposals for the activity, including one from the plaintiffs themselves. The proposals were reviewed by fifty evaluators with technical expertise and ten evaluators with cost expertise. Based on reports by these evaluators, the FAA announced its decision in February 2005 to award the contract for the outsourced activities to Lockheed Martin.
Entities or individuals representing the plaintiffs' interests have challenged the merits of the FAA's decisions at different steps of the process, including the decision to classify the activity as commercial and the decision to award the contract to Lockheed Martin. These challenges triggered reviews that affirmed the FAA's decisions. The challenge to the decision select Lockheed Martin's bid was reviewed by a special master, Judge Edwin B. Neill of the General Services Board of Contract Appeals, assigned by the FAA's Office of Dispute Resolution for Acquisition ("ODRA") for this review. Judge Neill's findings and recommendations were adopted by the FAA administrator, and the contract finally was awarded to Lockheed Martin in an FAA order issued July 20, 2005 ("July 2005 Order"). Plaintiffs filed this ADEA complaint shortly after the FAA announced its February 2005 decision to award the contract to Lockheed Martin.
The provision of the ADEA that applies to federal employers requires that "[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . [in certain specified entities] shall be made free from any discrimination based on age." 29 U.S.C. § 633a(a). It further provides that "[a]ny person aggrieved may bring a civil action in any Federal district court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter." 29 U.S.C. § 633a(c).
Plaintiffs plead both disparate treatment and disparate impact as alternative methods to prove their age discrimination claim. The difference between a disparate treatment case and a disparate impact case is the employer's intent. In a disparate treatment case, the plaintiff seeks to prove through either direct or circumstantial evidence that the employer had a "discriminatory intent or motive" behind its action. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986 (1988). In a disparate impact case, there is no need to show that the employer acted with a discriminatory intent. Id. "Rather, the necessary premise of the disparate impact approach is that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination." Id. at 987.
Defendants argue that under either theory, plaintiffs' ADEA claim must be dismissed for lack of jurisdiction. In the alternative, defendants argue that they are entitled to summary judgment because plaintiffs have not established a prima facie case of age discrimination.
I. MOTION TO DISMISS FOR LACK OF JURISDICTION
A. Collateral Attack on Agency Decision
Defendants contend that plaintiffs' suit is not a genuine ADEA action, but really a collateral attack on the FAA's July 2005 Order, the review of which is vested solely in the court of appeals under 49 U.S.C. § 46110(a). From that premise, defendants argue that there is no district court jurisdiction over plaintiffs' age discrimination claim. (Def.'s Mem. in Supp. of Mot. to Dismiss and for Summ. J. ("Def.'s Mem.") at 61-63.)
Certain FAA administrative orders are reviewable only by the court of appeals. 49 U.S.C. § 46110(a); City of Rochester v. Bond, 603 F.2d 927, 934-35 (D.C. Cir. 1979). In addition, claims that are "'inescapably intertwined' with review of such orders" do not fall within a district court's jurisdiction. Merritt v. Shuttle, Inc., 245 F.3d 182, 187 (2d Cir. 2001). "A claim is inescapably intertwined in this manner if it alleges that the plaintiff was injured by such an order and that the court of appeals has authority to hear the claim on direct review of the agency order." Id. at 187. However, other related "[a]ctions which are not (or not yet) orders but which are nonetheless reviewable may be raised in the district court . . . ." City of Rochester, 603 F.2d at 935. Thus, what may and may not be heard by a district court in light of the exclusivity provision of § 46110 depends upon whether the claim in the district court "'could have . . . been' presented to and decided by a court of appeals" in its § 46110 review of an agency order. Merritt, 245 F.3d at 188 (quoting City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 339 (1958)). In other words, "the test for determining whether an exclusive jurisdiction provision precludes a district court from hearing a given claim is 'whether the administrative agency had the authority to decide th[e] issue' raised by the claim." Id. at 188 n.9 (quoting Cook v. Pan Am. World Airways, Inc., 771 F.2d 635, 641 (2d Cir. 1985)).
Decisions in this circuit and others illuminate this distinction. For example, a district court had subject matter jurisdiction over a negligence action under the Federal Tort Claims Act (FTCA) against FAA employees for denying a pilot medical certificates, even though the denial of the medical certificates could be reviewed only in accord with § 46110. Beins v. United States, 695 F.2d 591, 597 (D.C. Cir. 1982); see also Merritt, 245 F.3d at 189-91 (holding that a pilot's negligence claim could be heard by the district court because the negligence claim was not inescapably intertwined with the FAA's order suspending the pilot's certificate, which could be reviewed only under § 46110). In Beins, the court noted the critical point that an appeal to the court of appeals from the FAA's license suspension order could not have led either to a review of the negligence claims lodged in the district court or to an award of damages for negligence. ...