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Davis v. District of Columbia

United States District Court, District of Columbia

March 31, 2017

RONDA L. DAVIS, et al., Plaintiffs,
DISTRICT OF COLUMBIA, Defendant. Re Document Nos 144, 146


          RUDOLPH CONTRERAS United States District Judge


         Plaintiffs in this case are former employees of the District of Columbia Child and Family Services Agency who were terminated in a broad layoff of agency staff. In this putative class action lawsuit, Plaintiffs allege that their termination was the result of a discriminatory downsizing of the agency's workforce. Specifically, Plaintiffs allege that the firings, referred to as a reduction in force, were the result of discrimination based on both race and age. Plaintiffs also allege that the agency's imposition of a bachelor's degree requirement for the newly created Family Social Worker position was discriminatory as to both race and age.

         After extended litigation, including the Court's resolution of initial dispositive motions and fact and expert discovery by the parties, the Court now considers two pending motions. First, Plaintiffs have renewed their motion for class certification. See Pls.' Mot. Class Certification (“Mot Class Certification”), ECF No. 144. Second, the District of Columbia has moved for summary judgment. See Def.'s Mot. Summ. J. (“Mot. Summ. J.”), ECF No. 146. For the reasons set forth below, the Court will grant the District of Columbia's motion for summary judgment. Because the Court grants summary judgment for the District on all remaining claims, the Court does not need to reach Plaintiffs' motion for class certification. Thus, the Court denies that motion as moot.


         The Court will begin with a description of the facts giving rise to the parties' dispute and then turn to the procedural history of this case.

         A. Factual Background

         1. The Child and Family Services Agency

         The District of Columbia Child and Family Services Agency (“CFSA”) is entrusted with protecting the safety, permanence, and well-being of abused and neglected children and with providing services to struggling families. See Def.'s Statement Undisputed Material Facts (“Def.'s Material Facts”) ¶ 1, ECF No. 146-2. Although the parties dispute the exact organizational structure of CFSA during the relevant time period, compare Id. ¶¶ 2, 5 with Pls.' Statement Disputed Material Facts (“Pls.' Disputed Facts”) at 2-3, ECF No. 148-1, it is undisputed that many of CFSA's “frontline functions” are led by the Office of Agency Programs, including investigating reports of child abuse and neglect, temporarily removing children from dangerous situations, and providing direct case management. See Def.'s Material Facts ¶ 3; Pls.' Disputed Facts ¶ 1. District of Columbia law and the consent decree entered in the class action LaShawn v Bowser mandate the provision of many of these services. See Def.'s Material Facts ¶ 4; Pls.' Disputed Facts ¶ 1; see also LaShawn v. Bowser, No. 89-1754 (D.D.C. Feb. 27, 2007), ECF No. 864 (order approving Amended Implementation Plan).

         CFSA experienced significant budgetary pressure in fiscal years 2010 and 2011. In FY 2010 (October 1, 2009 to September 30, 2010), CFSA's budget decreased by $25.3 million from the prior year. See Def.'s Material Facts ¶ 7. The FY 2010 budget reduced the number of fulltime employees from 940 to 892. See Id. ¶ 8. In FY 2011, CFSA's budget was reduced by $12.1 million and the number of approved full-time employees was reduced further from 892 to 840. See Id. ¶ 10. The agency was required to make the required budget and employee cuts before October 1, 2010, the beginning of FY 2011. See Id. ¶ 11. CFSA implemented a reduction in force (“RIF”) to meet the necessary reduction in personnel costs. See Id. ¶ 12. The RIF, which had an effective termination date of June 11, 2010, eliminated a total of 123 positions. See Id. ¶¶ 12-13. All told, 115 employees were separated from CFSA as a result of the RIF. See Id. ¶ 14.

         2. The Reduction in Force

         The parties view the RIF in drastically different light. Plaintiffs posit that the RIF was a simple across-the-board cut with discriminatory intentions and effects. Plaintiffs point to a memorandum dated April 29, 2010 from CFSA Director Roque Gerald to City Administrator Neil Albert that asked for “approval to conduct a Reduction-in-Force . . . to abolish one hundred and twenty-three . . . positions within the Child and Family Services Agency.” Pls.' Mem. P. & A. Opp'n Def.'s Mot. Summ. J. (“Opp'n Summ. J.”) at 5, ECF No. 148 (quoting Mot. Summ. J., Ex. F at 1, ECF No. 146-3). The memorandum explained that CFSA “must conduct a realignment to consolidate functions in accordance with the FY'2011 budget and internal re-engineering, ” and that “[t]he deficit resulting from the realignment will precipitate a reduction in force.” Id. Plaintiffs note that the memorandum provided an “agency-wide” list of positions, which purportedly affected virtually every office of CFSA. See Opp'n Summ. J. at 6.

         CFSA's Director sent a letter dated May 6, 2010 that informed the 115 CFSA employees who would be terminated by the RIF. See Opp'n Summ. J., Ex. 2 at 1, ECF No. 148-2. The letter did not provide a reason for the RIF, but stated that employees would “be separated from District government service effective 6/11/10” and that the RIF was conducted in “accordance with Chapter 24 of the District's Personnel Regulations and in no way reflects adversely on your performance of your official duties.” Id.

         In contrast, the District contends that the RIF was the result of a series of separate decisions. The District claims that “CFSA did not utilize a single uniform criteria, test or requirement for determining which employees” would be included in the RIF. Def.'s Mem. P. & A. Supp. Def.'s Mot. Summ. J. (“Mem. Supp. Summ. J.”) at 4, ECF No. 146. Instead, relying on the declaration of Raymond Davidson, CFSA's Chief Administrative Officer at the time of the RIF, the District contends that the decisions to eliminate certain positions were the result of multiple individual choices by the Director, working in consultation with numerous managers and senior leaders in the agency. See Def.'s Material Facts ¶ 15; see also generally Mot. Summ. J., Ex. E (“Davidson Decl.”), ECF No. 146-3. But see Pls.' Disputed Facts ¶ 3. Mr. Davidson's declaration also focused on CFSA's attempts to create new service models for providing services in the District. See Davidson Decl. ¶¶ 6-7, 10-12, 14.

         3. The Newly Created Family Support Worker Position

         The parties also apply their competing narratives to discrete components of the RIF, particularly the elimination of the Social Service Assistant (“SSA”) and Social Worker Associate (“SWA”) positions and the creation of a new Family Support Worker (“FSW”) position.

         According to Mr. Davidson, CFSA determined that it should adopt a model where Social Workers “are ‘teamed' with a set of skilled partners in order to more effectively serve the needs of the Agency's children and family clients.”' Davidson Decl. ¶ 6; see also Def.'s Material Facts ¶ 18. To advance that model, CFSA eliminated the SSA and SWA positions through the RIF in favor of a newly created FSW position. See Davidson Decl. ¶ 7; see also Def.'s Material Facts ¶ 19. The elimination of the SSA and SSW positions accounted for the majority of the 115 employees terminated in the RIF.[1] Def.'s Material Facts ¶ 20; Pls.' Disputed Facts ¶ 6.

         CFSA posted openings for the new FSW positions at the same time it informed employees of the RIF. See Opp'n Summ. J., Ex. 3 at 7, ECF No. 148-2. The FSW position required a bachelor's degree in a social service field. Def.'s Material Facts ¶ 32; see also Pls.' Disputed Facts ¶ 8 (acknowledging the degree requirement). Debra Porchia-Usher, CFSA Deputy Director for Agency Programs, stated that FSWs would be “able to perform casework activities that support investigative social workers to obtain the information necessary to complete investigations of abuse and neglect, including interviewing family members, children, and caretakers[;] assessing the safety of a home and the well-being of children[;] conducting home visits; documenting information into the case record; coordinating with other team members for meetings; and coordinating needed services for families and children.” See Mot. Summ. J., Ex. B (“Porchia-Usher Decl.”) ¶ 12, ECF No. 146-3.

         Plaintiffs contend that the SSA and FSW positions involved the same responsibilities, and that the only difference between the positions was the FSW's degree requirement. Opp'n Summ. J. at 8-11. Plaintiffs present CFSA's job descriptions of the relevant positions, and suggest that the descriptions are largely identical. See Opp'n Summ. J. at 8-10; Porchia-Usher Decl., Exs. A-B. For, instance, the SSA responsibilities included:

. “[P]roviding direct support to social work staff and the social work function.” Porchia-Usher Decl., Ex. A.
. “Conducting] non-clinical home visits accompanying a Social Worker or a Social Service Assistant, as needed, for reasons of safety . . . .” Id.
. “Providing] transportation assistance for clients . . . .” Id.
. “Supporting] social workers and supervisory social workers in implementing service plans by supervising/facilitating visits, making referrals or scheduling service with providers . . . .” Id.
. “Participating] in case and supervisory conferences as needed; bring[ing] problem issues to the attention of the worker and/or supervisor for discussion in these conferences.” Id.
. “Assisting] the social worker in completing specified paper searches to locate hard-to-find families by searching and clarifying data, checking files, and contacting other agencies.” Id.

         The FWS job posting included a number of similar responsibilities, including:

. “Performing] casework, group work, and community organization work under the supervision of a Licensed Independent Social Worker . . . ” Porchia-Usher Decl, Ex. B.
. “Accompanying] a Social Worker as needed, for reasons of safety or participating] in home visits and/or investigations to determine the needs of clients . . . .” Id.
. “Providing] transportation assistance for clients . . . .” Id.
. “Supporting] social workers and supervisory social workers in implementing service plans by supervising/facilitating visits . . . .” Id.
. “With guidance, developing] plans for and providing] appropriate assistance and services on a continuing basis to children and family members ” Id.
. “Assisting] the social worker in completing specified paper and record searches to locate hard-to-find families by engaging diligent search services or by searching and clarifying existing data, checking files and contacting other agencies as necessary.” Id.

         Plaintiffs also present evidence that SSAs were already completing some of the additional responsibilities-specifically casework and assessments during home visits-that were included in the FSW job description. Plaintiff Darius Morris, for instance, testified during a deposition that SSAs routinely made home visits and assessments, but that CFSA did not enter those visits and assessments into its database system. See Opp'n Summ. J., Ex. 11 at 21-26, ECF No. 148-3. In her response to an interrogatory, Plaintiff Stephanie Alston stated that, despite her lack of a bachelor's degree, the Georgia Avenue Family Support Collaborative, a CFSA contractor, hired her as a Family Support Worker. See Opp'n Summ. J., Ex. 14 at 2, 4, ECF No. 148-6.[2]Plaintiffs contend that CFSA's decision to contract the FSW function to an outside vendor, who in turn hired Ms. Alston, shows that a bachelor's degree was not required to perform the duties of a FSW. See Opp'n Summ. J. at 10-11.

         Finally, Plaintiffs present an email sent by CFSA employee Jenna Beebe on May 26, 2010. See Opp'n Summ. J., Ex. 6 at 1, ECF No. 148-2. Ms. Beebe states that “one of the other supervisory interviewers mentioned to me that they felt that the FSW would be used in the exact fashion SSA's were prior to RIF.” Id. Ms. Beebe went on to say that, in her understanding, “FSW's will have much higher requirements and acquired skills.” Id. In response, Ms. Porchia-Usher stated that CFSA would need “to be conscious that all FSW know the expectations” and that “performance evaluations [clearly] outline the current position expectations.” Id.

         4. Hiring for the FSW Position

         A job posting for the newly created FSW position stated that the position would be open as of May 5, 2010 and that CFSA planned to fill 35 vacancies. See Opp'n Summ. J., Ex. 4 at 1, ECF No. 148-2. On June 7, 2010, CFSA Director Gerald sent an email stating that “[t]he first of our new Family Support Workers (FSWs) came on board today” and that each of the 17 new FSWs “are former CFSA employees we're re-hiring after the reduction in force last month.” Opp'n Summ. J., Ex. 5 at 1, ECF No. 148-2. Director Gerald also stated that “Human Resources is prepared to make offers to an additional group shortly. All those candidates are from outside CFSA.” Id.

         According to the District's data, 44 employees who were separated through the RIF applied for an FSW position.[3] See Def.'s Material Facts ¶ 36. Of the 44 applicants, 30 held a bachelor's degree and therefore satisfied the minimal education requirements of the position. Id. ¶ 37. Two declined to be interviewed and two others took other positions in the agency. Id. ¶ 38. Following an interview of all qualified applicants, CFSA hired 18 employees who had been terminated in the RIF. Id. ¶ 41. The District contends that all 18 re-hires were African-American and 7 were age 40 or older. Id. ¶¶ 42-43. Plaintiff Mr. Ajakaiye was one of the 18 initial FSW hires, and is the only plaintiff in this case who was hired for that position. Opp'n Summ. J. at 12.

         5. Expert Reports

         During the process of discovery, the parties retained experts to provide statistical analyses of the RIF and related decisions by CFSA. Plaintiffs hired Dr. Paige Munro, who has a Ph.D. in industrial organizational psychology. See Mot. Summ. J., Ex. H (“Munro Decl.”) ¶ 1, ECF No. 146-3. The District hired Dr. Stephen Bronars, who has a Ph.D. in economics. See Mot. Summ. J., Ex. J ¶ 2. Both of the experts produced two reports using statistical analyses to examine the purported impact of CFSA's employment practices.

         a. Dr. Munro's July 2012 Report

         Dr. Munro submitted her initial report for the Plaintiffs on July 28, 2012. See Munro Decl. at 4; see also Mot. Summ. J., Ex. I, ECF No. 146-3 (Dr. Munro's report). Dr. Munro based her report on data provided by the District in the declaration of Stan Spaght, the Human Resources Manager for Compensation/Benefits at CFSA. Id. ¶ 2; see also Mot. Summ. J., Ex. I at 1. Mr. Spaght stated that, before the RIF, CFSA had a total workforce of 832. See Opp'n Summ. J., Ex. 10 (“Spaght Decl.”) 5, ECF No. 148-2. According to Mr. Spaght, prior to the RIF, 82.8% of employees were African-American and 62.7% were age 40 and over. Id. Finally, Mr. Spaght's declaration stated that, of the 115 workers terminated in the RIF, 93% were African-American, and 74.8% were workers 40 and over. Id.

         Relying on that data, Dr. Munro calculated that, of the 832 workers at CFSA before the RIF, approximately 689 were African-American and 143 were other races. See Mot. Summ. J., Ex. I at 1. Similarly, approximately 522 employees were 40 and over and 310 were younger than 40. Id. Dr. Munro also calculated that 107 employees terminated in the RIF were African-American (8 were other races), and 86 were 40 and over (29 were younger than 40). Id. Dr. Munro then conducted a statistical analysis to determine whether the rate of termination for African-Americans and employees 40 and over differed in a statistically significant way from the termination rates for non-African-American employees and employees under 40. Id. Dr. Munro's analysis concluded that the RIF termination rate for African-Americans was 15.5%, while the same rate for non-African-Americans was 5.6%. Id. at 3-4. A parallel analysis concluded that the RIF termination rate for employees 40 and over was 16.5%, while the same rate for those under 40 was 9.4%. Id. at 4-5.

         Dr. Munro's analysis relies on the 4/5ths rule, which she refers to as a “rule of thumb to evaluate adverse impact in a hiring or termination scenario.” Id. at 3. Simply put, “if 100% of a majority group pass a test then the minority group should not pass at a rate lower than 80% or the test result is said to be adversely impacting the minority group.” Id. Dr. Munro concluded that the RIF violated the 4/5ths rule on the basis of both race and age. Id. 4-5. Dr. Munro also concluded that both results are strongly statistically significant. Id. Finally, Dr. Munro found that re-hiring 18 African-American to the FSW position “does not change the net results notably.” Id. at 4.

         b. Dr. Bronars's January 2014 Report

         The District's expert, Dr. Bronars, produced his initial report on January 8, 2014. See Mot. Summ. J., Ex. J. Dr. Bronars begins his analysis with a different total number of CFSA employees at the time of the RIF. Dexter Starkes, CFSA Director of Human Resources, stated in his declaration that 30 employees in the office of the Fiscal Operations Administration “contribute to the agency's overall headcount, [but] they report to the Office of the Chief Financial Officer and are not technically CFSA employees. As a result, these positions were not subject to inclusion in the RIF.” Mot. Summ. J., Ex. C ¶ 7 (“Starkes Decl.”), ECF No. 146-3. Therefore, Dr. Bronars began his analysis with 802 employees at the time of the RIF, instead of 832. See Mot. Summ. J., Ex. J.

         Dr. Bronars took a very different statistical approach than Dr. Munro. Dr. Bronars explained that Dr. Munro's approach “is based on the assumption that all CFSA employees faced the same risk of termination during the RIF.” Id. ¶ 11. Instead, Dr. Bronars stated that his “analysis allows the risk of termination to vary between divisions within the CFSA and among certain jobs within the CFSA.” Id. ¶ 12. Dr. Bronars based his assumption of disparate risk on the declaration of Raymond Davidson, CFSA's Chief Administrative Officer at the time of the RIF. Id.; see also Davidson Decl. Therefore, instead of one analysis of all CFSA employees, Dr. Bronars “assume[d] that there are 7 different sets of layoff decisions made by CFSA during the RIF” corresponding to 7 different positions or divisions affected by the downsizing. See Mot. Summ. J., Ex. J. ¶ 21.

         Dr. Bronars also used a different standard for statistical significance. Relying on Supreme Court precedent, he would “conclude that there is statistical evidence of discrimination . . . if the difference between the actual outcomes of the termination process and the outcomes that would have been expected from a random neutral process is so large that it would have occurred 5% of the time.” Id. ¶ 18. This difference corresponds to two standard deviations. Id. ¶ 19.

         Dr. Bronars's analysis concluded that, “while 107 African American employees were laid off during the RIF, had employees within each of the seven position and division groups been selected in a race-neutral manner, 105.21 African American employees would have been terminated.” Id. ¶ 22. Similarly, “while 81 employees age 40 and above were laid off during the RIF, had employees within each of the seven position and division groups been selected in an age-neutral manner, 79.09 employees . . . would have been terminated.” Id. ¶ 23. Dr. Bronars found that neither difference was statistically significant. Id. ¶¶ 22-23.

         Finally, Dr. Bronars turned to the hiring for the FSW position. Dr. Bronars contends that Dr. Munro “effectively assumes that all 115 individuals who were initially terminated during the RIF were equally qualified and equally interested in an FSW position.” Id. ¶ 24. Based on information provided by the Attorney General's Office, Dr. Bronars states that 44 former employees applied for the FSW position, 2 withdrew or declined to be interviewed, and 14 were determined not to be qualified for the position. Id. ¶ 25. Ultimately, 18 of the 28 qualified and interested former CFSA employees were re-hired as FSWs. Id. Because all 18 re-hires were African American, Dr. Bronars concludes “[t]here is, of course, no possibility of racial disparity in the re-hiring process.” Id.

         Turning to the age of applicants, Dr. Bronars states that “11 of the former CFSA employees re-hired into the FSW position were under age 40 and 7 were age 40 and above.” Id. ¶ 26. Dr. Bronars notes that half of the interested and qualified applicants for the FSW positon were age 40 and above. Id. Thus, in an “age-neutral process one would expect that half of the 18 re-hired former CFSA employees would be under age 40 and half would be age 40 and above.” Id. Dr. Bronars concludes that “[t]he difference between 7 [actual] and 9 [expected] re-hired employees is equivalent to a difference of 1.58 standard deviations and is therefore statistically insignificant.” Id.

         c. Dr. Munro's May 2014 Report

         Dr. Munro submitted a rebuttal to Dr. Bronars's report on dated May 7, 2014. See Mot. Summ. J., Ex. K, ECF No. 146-4. To start, Dr. Munro raises issues with the updated data provided by the District and relied upon by Dr. Bronars. Dr. Munro concludes that 30 employees are not accounted for in the updated data and that racial identification is not provided in 84 cases. Id. at 2. Nevertheless, Dr. Munro replicated her original calculations using the new data, and found what she describes as “more significant results.” Id. at 2-4. While Dr. Munro's initial analysis concluded that the RIF's “African American termination rate was 277% the rate for non-African Americans, ” her updated analysis concluded that “the termination rate of African Americans was 444% the rate of Caucasians, which is much, much more notable.” Id. at 3 (emphasis added). Similarly, Dr. Munro's initial analysis found that employees 40 and over were terminated “at 176% the rate of those under 40, ” but after considering the new data, she found that employees 40 and over were terminated “at 179% the rate of those under 40.” Id. at 4. Dr. Munro concludes that the termination rates for both African-Americans and employees 40 and over violated the 4/5ths rule and that both results are statistically significant. Id. at 3-4.

         Dr. Munro also identified several purported methodological and statistical issues with Dr. Bronars's previous report. Id. at 5-7 (summarizing concerns). First, Dr. Munro questions Dr. Bronars's assumption that different positions faced unequal risks of termination in the RIF. Id. at 5, 8-11. Dr. Munro contends that Dr. Bronars bases this assumption on the relatively recent declaration of Mr. Davidson, but that, “at the time of [her] analysis, the most practical assumption to make was that aside from the SSAs (that were 100% terminated), every other position and employee . . . was at equal risk for termination.”[4] Id. at 5; see also Id. at 8-12.

         Second, Dr. Munro raises two statistical issues with Dr. Bronars's analysis. Id. at 6, 12- 16. For one, sample size is an important factor in finding a statistically significant result, and by breaking the larger sample size (all employees) into smaller subgroups (specific positions or divisions), Dr. Bronars made it less likely that any statistically significant result would be found. Id. at 14. For another, the subgroups analyzed by Dr. Bronars were very homogenous-at least one subgroup was entirely African-American, for example-and Dr. Munro contends that homogenous subsamples can make an effort to predict differentials between expected and observed outcomes “completely meaningless.” Id. Third, Dr. Munro suggests that Dr. Bronars's “conclusions are not dispositive of adverse impact.” Id. at 16. According to Dr. Munro, the homogeneity of Dr. Bronars's subsamples raises another possibility-“that the ‘targeted' positions and divisions were disproportionately occupied by African Americans and those over 40.” Id. Finally, Dr. Munro concludes her report with a lengthy analysis of the financial and agency efficiency implications of the RIF. Id. at 22-31.

         d. Dr. Bronars's ...

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