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James D. Moses v. Gene L. Dodaro

March 31, 2011


The opinion of the court was delivered by: Emmet G. Sullivan United States District Court Judge


Plaintiff James Moses filed this action on October 4, 2006 against the Comptroller General of the United States Government Accountability Office ("GAO" or the "agency") alleging, among other things, that the agency discriminated on the basis of age in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"). Plaintiff seeks to represent a class of approximately 300 GAO auditors.

Defendant's prior motion to dismiss was denied in part and granted in part by this Court in a December 18, 2009 Memorandum Opinion in which the Court concluded plaintiff had sufficiently stated a cause of action under the ADEA with respect to "two specific, discrete allegedly discriminatory actions[.]" Mem.

Op. at 48, Dec. 18, 2009. These two allegations form the only remaining viable portion of plaintiff's action. They are (1) an allegation that plaintiff and others were discriminatorily denied increases in cost of living allowances ordinarily provided to GAO employees, and (2) an allegation that the GAO discriminatorily split the "Band II" employee pay classification into two separate categories.

After Moses was granted leave to file an amended complaint, defendant filed a renewed motion to dismiss and/or for summary judgment. Upon consideration of defendant's motion, the opposition and reply thereto, the applicable law, the entire record, and for the reasons stated below, the defendant's motion is hereby GRANTED in part and DENIED in part. Furthermore, plaintiff's request for discovery is DENIED, and plaintiff's motion for a continuance to seek discovery is DENIED.


The relevant factual background is as follows: plaintiff was employed by the GAO from 1967 until his retirement in January 2010. For purposes of determining pay ranges, the GAO classifies its employees according to a "Band" system. At the time of his retirement, and at all times relevant to this litigation, plaintiff was employed as a "Band II" analyst.

In late 2005, the GAO restructured the Band II Analyst and Specialist positions within the agency. Specifically, these Band II employees were split into two separate categories: Band IIA and Band IIB. Statement of Facts in Support of Defendant's Motion to Dismiss and/or for Summary Judgment ("Def.'s Statement of Facts") ¶¶ 6-7. As the agency explains, "[t]he employees who were placed in Band IIB would have greater leadership roles and responsibilities than the employees placed into Band IIA. Employees placed into Band IIB also had the potential for greater compensation than employees placed into Band IIA."

Def.'s Mem. at 2. Plaintiff applied for placement into Band IIB, but his application was denied. Def.'s Statement of Facts ¶ 6. Effective January 2006, plaintiff was placed into Band IIA.

The parties disagree on why the GAO restructured its Band II employees. Plaintiff asserts that "the real criteria for selection [for Band IIB] was based upon age." Pl.'s Resp. to Mot. to Dismiss and Cross-Mot. for Recons. of Denial of Disc. ("Pl.'s Resp.") at 16; see also Am. Compl. ¶ 26 ("[T]he manipulation of the 'band system' has been used by management to purportedly justify announced de-facto demotions of persons over 50."). In addition, plaintiff claims that "[e]valuations were biased against older employees, and the resulting separation was to place virtually all older employees into a lower designation '[B]and IIA.'" Am. Compl. ¶ 71.

Defendant, on the other hand, asserts that the agency "undertook this restructuring in an effort to modernize its compensation system by making it more market-based and performance oriented." Def.'s Mem. at 1-2. Defendant further asserts that "[t]o be eligible for placement into Band IIB . . . employees had to meet certain minimum requirements regarding their time in the Band and their recent performance appraisals." Def.'s Statement of Facts ¶¶ 8. Defendant identifies three "assessment factors" that the GAO used to determine whether an employee would be placed in Band IIA or Band IIB. Def.'s Statement of Facts ¶¶ 9-12.*fn1 In support of this assertion, the defendant has submitted the affidavits of the two individuals who were responsible for making the ultimate decision about whether an employee would be placed into Band IIA or Band IIB, namely Gene Dodaro, GOA's Chief Operating Officer at the time, and Sallyanne Harper, GAO's Administrative Officer/Chief Financial Officer. Def.'s Statement of Facts ¶¶ 14-19.

The salary maximum for Band IIA was lower than the salary maximum had been for Band II before the restructuring. In other words, for some employees who were placed in the Band IIA category, including plaintiff, their salary was higher than the applicable maximum. The GAO did not reduce the salaries of these employees whose pay exceeded the maximum rate for Band IIA. However, the GAO denied these employees, again including plaintiff, the 2006 cost of living increase ("COLA"), amounting to a 2.6 percent increase in pay, that was provided to the majority of GAO employees. Def.'s Statement of Facts ¶¶ 38-39.*fn2

Some of the harms complained of by plaintiff with respect to his salary and Band placement have been rectified in subsequent years. First, in March 2007, plaintiff was promoted to the Band IIB category instead of Band IIA. Second, Congress enacted the Government Accountability Act of 2008 ("GAO Act of 2008" or "the Act") in September 2008. Pub. L. No. 110-323, 122 Stat. 3539 (Sept. 22, 2008). In the Act, Congress directed the GAO to raise the salaries of employees who had been denied their COLA in 2006 or 2007 to the level of pay that they would have been receiving had they been granted the COLAs. See Pub. L. 110-323, § 3(c), 122 Stat. 3541. In addition, the Act directed the GAO to provide employees who did not receive their 2006 or 2007 COLAs a lump sum payment equal to the sum of money (plus 4 percent) that they would have received had they been granted the COLAs when they went into effect. See id. § 3(d). In accordance with the provisions of the GAO Act of 2008, plaintiff's salary was increased by $3,323, and he also received a lump sum payment of $9,751.87.

II.Standard of Review

The subject matter jurisdiction of the federal district courts is limited and is set forth generally at 28 U.S.C. §§ 1331 and 1332. Under those statutes, federal jurisdiction is available only when a "federal question" is presented or the parties are of diverse citizenship and the amount in controversy exceeds $75,000. A party seeking relief in the district court must plead facts that bring the suit within the court's jurisdiction. See Fed. R. Civ. P. 8(a).

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Though the Court must draw all justifiable inferences in favor of the non-moving party in deciding whether there is a disputed issue of material fact, "[t]he mere existence of a scintilla of evidence in support of the [non-movant]'s position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. 242, 252. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (internal citations omitted).


Plaintiff's remaining claims under the ADEA, based upon the band restructuring and the denial of the COLAs, are both challenged in defendant's motion. First, defendant argues that the Court does not have jurisdiction over the COLA claim. Second, defendant argues that the plaintiff's COLA claim is moot. In addition to these two ...

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