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James D. Moses v. Gene L. Dodaro

January 12, 2012


The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge



This case comes before the Court on the defendant's renewed motion [126] to dismiss the plaintiff's first amended complaint [94] or, in the alternative, motion for summary judgment. Also before the Court are the plaintiff's cross-motion for reconsideration of various discovery motions, cross-motion to strike the declaration of the defendant's expert witness testimony [135], motion [137] for leave to file a sur-reply*fn2 , and motion [142] for hearing on the status of the case. Upon consideration of the filings, the entire record herein and the relevant law, the Court will GRANT the defendant's motion for summary judgment and DENY the plaintiff's cross-motion for reconsideration and motion for leave to file a sur-reply. Plaintiff's cross-motion to strike and motion for hearing on the status of the case are DISMISSED as moot.


Plaintiff James Moses filed this action on October 4, 2006 against the Comptroller General of the United States, the head of the Government Accountability Office ("GAO") alleging, among other things, that the agency discriminated on the basis of age in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. 621 et seq. ("ADEA"). Plaintiff seeks to represent a class of approximately 300 GAO auditors. In a December 2009 Memorandum Opinion [90], the Court (per Judge Sullivan) concluded that the 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 claims alleged that

(1) the plaintiff and others were discriminatorily denied increases in cost of living allowances ("COLA"), and (2) the GAO discriminatorily split the "Band II" employee pay classification into two separate categories.

After the plaintiff filed an amended complaint, the defendant filed a renewed motion to dismiss and/or for summary judgment [101]. In a March 2011 Memorandum Opinion [117], the Court (Judge Sullivan) granted the defendant's motion for summary judgment insofar as it related to the plaintiff's disparate treatment claim of discrimination; however, the Court concluded that the "plaintiff's claim of discrimination based upon a disparate impact theory of recovery, to the extent he intended to assert one, remains intact." Mem. Op. at 14, Mar. 31, 2011. The Court also denied both the plaintiff's request for discovery and the plaintiff's motion for a continuance to seek discovery.


The 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, the plaintiff was employed as a "Band II" analyst.

In November 2005, the GAO restructured the Band II analyst and specialist workforce into two distinct categories, Band IIA and Band IIB. To be eligible for the band with a higher compensation cap (Band IIB), employees had to meet certain requirements with respect to their time in Band II and recent performance appraisals. Def.'s Renewed Mot. to Dismiss 3-4 ("Def.'s Renewed Mot."). The plaintiff applied for placement into Band IIB, but his application was subsequently denied. Id. at 6.

The parties disagree as to why the GAO restructured its Band II employees. The plaintiff alleges that the objective was to "reshape the staff profile to eliminate a surplus of Senior Band II GAO analysts and specialists." Pl.'s Opp'n to Def.'s Renewed Mot. 4 ("Pl.'s Opp'n"); see also Am. Compl. ¶ 8 ("[T]he manipulation of the 'band system' has been used by management to purportedly justify announced de-facto demotions of persons over 50."). The defendant asserts that the restructuring was (1) intended to make clear that not all Band II employees perform the same roles and responsibilities, (2) to ensure that all Band II employees receive equal pay for work and equal value over time, and (3) to make sure that its pay system is consistent with private employer's compensation levels. Def.'s Renewed Mot. at 3.

The defendant asserts that the GAO determined whether an employee would be placed into Band IIA or Band IIB on three "assessment factors."*fn3 Id. at 4. These assessment factors included (1) roles and responsibilities, (2) past performance, and (3) performance potential. Id. An employee could not be selected for Band IIB unless he/she satisfied all three categories. Id. In support of this assertion, the defendant has submitted the affidavits of the two individuals who were responsible for making the final decision on whether an employee would be placed into Band IIA or Band IIB, Gene Dorado, GAO's Chief Operating Officer at the time, and Sallyanne Harper, GAO's Administrative Officer/Chief Financial Officer. Id.

Concurrent with the Band II restructuring, the GAO set a new scale of pay ranges for the entire Band system. Id. at 8. Because the salary maximum for Band IIA was lower than the previous maximum for Band II, some employees placed into Band IIA, including the plaintiff, received a higher salary than the applicable maximum after the restructure. Id. No employees' salaries were reduced as a result of this discrepancy, however, the GAO denied these employees, again including the plaintiff, the 2006 COLA that was provided to a majority of the other GAO employees. *fn4 Id.

On April 4, 2006 the plaintiff filed a Complaint of Discrimination with the GAO's Office of Opportunity and Inclusiveness that challenged his placement into Band IIB on the basis of age and race but did not contain any reference to his denial of a COLA. Id. Ex. 14. The plaintiff subsequently filed the instant action on October 4, 2006. Id. at 9. Additionally, some of the harms complained by the plaintiff with respect to his salary have been rectified in the time between the initial filing and present day. First, in March 2007, the plaintiff was promoted to the Band IIB category. Second, Congress enacted the Government Accountability Act of 2008 in September 2008, which directed the GAO to raise the salaries of employees who had been denied their COLA in 2006 and 2007 to the level they would have been receiving had they been granted the initial COLAs. Pub. L. No. 110-323, 122 Stat. 3539 ยง 3(c) (Sept. 22, 2008). Further, Congress directed the GAO to award those same employees a lump sum payment ...

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