United States District Court, District of Columbia
L. FRIEDMAN United States District Judge.
former flight service (“FS”) specialists with the
Federal Aviation Administration (“FAA”), brought
this suit against the FAA and the Department of
Transportation (collectively “defendants” or the
FAA) alleging discrimination on the basis of age, in
violation of the Age Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. § 621, et seq.
Defendants terminated plaintiffs' employment pursuant to
a reduction in force (“RIF”) that involved
outsourcing the FS function to Lockheed Martin, a private
company. Plaintiffs allege (1) a disparate treatment claim -
that the FAA decided to outsource the FS function because of
the age of the FS specialists, and (2) a disparate impact
claim - that the FAA's decision had a disproportionate
impact on workers over the age of 40.
have moved for summary judgment on both theories. As to the
disparate treatment claim, they contend that (1) the RIF
applied to every FS specialist, regardless of age; (2) the
agency had legitimate, nondiscriminatory reasons for
outsourcing the FS function; and (3) comments made by FAA
managers about age and the aging workforce were not made by
decision makers in the A-76 process or the 2005 RIF decision
and, in any event, were legitimate in the context in which
they were made. As for the disparate impact claim, defendants
argue that there can be no disparate impact claim based on
the RIF or, alternatively, on the 2002 decision to designate
the FS function as “non-core, ” because neither
was a facially neutral employment policy or practice. Upon
careful consideration of the parties' briefs, the
relevant legal authorities, and the entire record in this
case, the Court will deny defendants' summary judgment
motion on plaintiffs' disparate treatment claim but grant
their motion on plaintiffs' disparate impact
FACTUAL AND PROCEDURAL BACKGROUND
The Role of Flight Service Specialists
specialists provide preflight, inflight, and airport advisory
information to aircraft operators. Def. Facts ¶ 3.
Before a flight, FS specialists communicate with pilots
directly, providing meteorological and aeronautical
information to help them plan safe flights. Pl. Opp. Facts
¶ 1-2. FS specialists also communicate with pilots
during flight by radio, helping them to avoid hazards, aiding
them during emergencies, helping lost pilots find their
bearings, and initiating search and rescue operations if they
cannot confirm that a flight has ended safely. Id.;
Def. MSJ at 4; Def. MSJ, Ex. 61 at 33-34 [Dkt. 256-62]; Def.
MSJ, Ex. 80 at 37 [Dkt. 256-81]. FS specialists can also
disseminate information through the National Air System via
Notices to Airmen. Pl. Opp. Facts ¶ 1-2. FS specialists
are not involved in separating or controlling aircraft while
in the air; that is the job of so-called “Aircraft
Separating Controllers.” Def. Facts at ¶ 5;
see also 5 U.S.C. § 2109(1)(A)(i). FS
specialists also cannot prohibit a pilot from flying, but can
recommend that pilots do not fly if doing so would be
hazardous. Def. MSJ at 3; 5 U.S.C. § 2109(1)(A)(ii).
specialists comprised one of several air traffic control
functions that the FAA administered prior to the October 2005
RIF. Def. Facts ¶ 1. At that time, commercial airlines
relied on their own or on a contractors' employees to
provide the information that FS specialists also provided.
Id. ¶ 9; Def. MSJ, Ex. 61 at 95 [Dkt. 256-62];
Def. MSJ, Ex. 86 at 52 [Dkt. 256-87]; Def. MSJ, Ex. 51 at 44
[Dkt. 256-52]. Some private pilots also used private
companies to plan for flights. Def. Facts ¶ 10; Def.
MSJ, Ex. 50 at 52 [Dkt. 256-51]. Despite these alternatives,
plaintiffs contend that the FAA's FS function provided
the most comprehensive source of flight information. Pl. Opp.
Facts ¶ 4-5 (“Flight Service is virtually the only
source of in-flight air/ground services for general
aviation.”) (emphasis omitted); Pl. Facts at ¶ 14
(“[N]o non-governmental workforce . . . was trained and
certified to perform all of the functions of flight service
for general aviation.”).
FAA's “Aerospace Forecast” for 2005-2016
noted several ominous trends affecting the FS function, such
as the fact that “[t]he introduction of new technology
for flight service has significantly changed the operating
environment for the flight service system.” Def. MSJ,
Ex. 3 at VII-16 [Dkt. 256-4]. The FAA predicted that the
“increased use of automation and new system
capabilities” would “dampen the growth in
traditional FS workload measures, ” such as contact
with pilots. Id. at VII-16-18. In the years leading
up to 2005, the FAA collected data showing that private
pilots increasingly accessed weather reporting, flight
planning, and navigational assistance - the traditional FS
functions - online. Def. MSJ, Ex. 42 ¶ 6 [Dkt. 256-43];
Def. MSJ, Ex. 80 at 33-34 [Dkt. 256-81]; Def. MSJ, Ex. 84 at
50 [Dkt. 256-85]. The FAA also approved systems for
transmitting weather information directly into pilots'
cockpits during flight without the need for a FS specialist.
See Def. MSJ, Ex. 1 at 1 [Dkt. 256-2]. And
comprehensive automated weather systems replaced the FS
specialists' task of going outside at airports to observe
weather conditions. Def. MSJ, Ex. 53 at 59 [Dkt. 256-54];
Def. MSJ, Ex. 61 at 26 [Dkt. 256-62]; Def. MSJ, Ex. 62 at
73-74 [Dkt. 256-63].
result of these changes, the work of FS specialists declined;
there were fewer contacts with pilots, fewer briefings, and
fewer flight plan filings every year. Def. MSJ, Ex. 2 at
VII-8 [Dkt. 256-3]; Def. MSJ, Ex. 3 at VII-16, VII-18 [Dkt.
256-4]. As FS specialists retired or left their jobs, the FAA
decided not to rehire new FS specialists to replace them. Pl.
MSJ, Ex. 33 at 142 [Dkt. 263-35]. The number of FS
specialists the FAA employed gradually declined and the
remaining FS specialists were gradually “aging”
in the years leading up to 2005. Def. Facts ¶¶
18-19; Def. MSJ at 15-16. FS facilities also were starting to
deteriorate insofar as buildings required repair or
replacement and the computer system used by FS specialists
required major investment and attention. Def. MSJ at 17.
changes caused the FAA to seek methods to consolidate air
traffic control functions in order to save money.
See, e.g., Def. Facts ¶¶ 16-17. A
number of internal and external studies found that the FAA
could save significant amounts of money by restructuring and
consolidating its FS function. Id. ¶¶
21-23; Pl. Facts ¶ 10. A 1996 report by the FAA's
Office of the Inspector General recommended that the FAA
“consider having the private sector provide the full
range of flight services.” Def. Facts ¶ 24; Pl.
Opp. Facts ¶ 7. Other reports recommended consolidation
but also recommended that the FS function remain within the
government. Pl. Opp. Facts ¶ 9-11.
The FAIR Act
the late 1990s and the early 2000s, the government pushed
federal agencies to restructure and outsource any functions
that the private sector could provide better and more
efficiently. Def. MSJ at 17-18. Congress's 1998 Federal
Activities Inventory Reform Act (“FAIR Act”)
mandated that agencies annually classify all activities
performed by government personnel as either commercial or
inherently governmental, and submit a list of those that were
“not inherently governmental functions.” Federal
Activities Inventory Reform Act of 1998, Pub. L. No. 105-270
§ 2(a)-(b), 112 Stat. 2382 (codified as amended in
scattered sections of the United States Code); ses
also Def. Facts ¶ 31; Def. MSJ at 18. Agency heads
were then to review the list and consider contracting with a
private source for the listed activities. 112 Stat. 2382 at
§ 2(d). If the agency head decided that certain
activities could be outsourced, he or she was to use a
competitive process to select the private contractor.
Id. The rules for such a competition are outlined in
Office of Management and Budget (“OMB”) Circular
A-76, and competitions under these rules are called
“A-76” studies or competitions. Office of Mgmt.
& Budget, Exec. Office of the President, Circular No.
A-76 (Revised) (2003); Def. MSJ at 19.
further expand A-76 competitions, President George W. Bush
put the “Competitive Sourcing Initiative” on his
President's Management Agenda (“PMA”) in
2001. Def. Facts ¶ 32. The Initiative required federal
agencies to either subject 15% of their commercial work
functions to an A-76 process or directly convert 15% of their
commercial activity inventory by the end of fiscal year 2003.
Id. ¶ 34. These cost comparisons and
conversions were to continue after 2003 until eventually 50%
of every agency's commercial activity inventory had been
covered. Pl. Opp. Facts ¶ 12. The OMB discarded these
numeric benchmarks in July 2003. Def. Opp. Facts ¶ 8;
Def. MSJ, Ex. 9 at 7-8 [Dkt. 256-10]. As a result, the FAA in
2002 was under pressure to save money and consider functions
for possible competitive sourcing. Def. Facts ¶¶
Before the A-76 Study
negotiations in 2002 for the FAA's budget request for
fiscal year 2003, the FAA sought budgetary authority to
modernize the computer software used by FS specialists. Def.
Facts ¶ 35; Pl. Opp. Facts ¶ 14. The OMB suggested
that the FAA look at consolidating instead of updating its
computer systems. Pl. Opp. Facts ¶ 14; Def. MSJ, Ex. 47
at 21-24 [Dkt. 256-48] (Deposition of Chief Financial Officer
Christopher Bertram (“Bertram Dep.”)). Instead of
consolidation, the FAA decided to conduct an A-76 study to
see if the FAA could provide flight services more
efficiently. Pl. Opp. Facts ¶ 15; Bertram Dep. at 28.
Defendants claim that it was the FAA's Chief Financial
Officer, Christopher Bertram, and his deputy CFO, John
Hennigan, who made this decision. See Def. MSJ at
2002, Bertram sent a memorandum to the FAA's
Administrator, Jane Garvey, about the decision of the
FAA's Office of Financial Services to subject the FS
function to an A-76 competition as a means of meeting the
OMB's requirements. Def. Facts ¶ 40. Bertram's
memorandum stated that, according to the OMB instructions and
the Competitive Sourcing Initiative's 15% requirement,
the FAA would need to outsource 1, 100 positions by the end
of calendar year 2003, and that outsourcing the FS function
could meet this goal. Id. ¶ 41. Bertram also
informed Administrator Garvey that the FAA had engaged an
outside contractor to perform a feasibility study to clarify
the scope of the review and determine whether private
companies would bid on the work. Id. ¶ 42; Def.
MSJ at 22. The FAA then formed a working group to develop an
action plan for considering the FS function for an A-76
process. Def. Opp. Facts ¶ 7. The members of this group
included Deputy CFO John Hennigan, Ronald Page from the
FAA's Office of Finance, and former FS division managers
Marilyn Jackson-Brame and Jack Nimmo. Pl. Facts ¶ 5; Pl.
MSJ, Ex. 9 at 64, 199-200 [Dkt. 265-7]; Pl. MSJ, Ex. 54 at 39
contracted with the accounting firm Grant Thornton LLP to
perform the feasibility study; Grant Thornton ultimately
found that that the FS function was a strong candidate for
competitive sourcing. Def. Facts ¶ 43; Pl. MSJ, Ex. 22
at ¶ 00253 [Dkt. 265-14]. It based this finding on the
participation of three private sector companies that
performed work similar to FS specialists, none of which
eventually bid on the FS function contract when it was
offered. Pl. Opp. Facts ¶ 17. According to plaintiffs,
Grant Thornton's study also found, however, that one part
of the FS function was inherently governmental and should not
be contracted out. Pl. Opp. Facts ¶ 17. Defendants
dispute this because Grant Thornton's report identified a
private vendor who had performed such services outside of the
United States. Def. Opp. Facts ¶ 12; see Pl.
MSJ, Ex. 22 at ¶ 00248 [Dkt. 265-14]. After reviewing
the Grant Thornton report, the FAA retained Grant Thornton
for an additional four years and paid the company nearly $14
million for its work. Pl. Opp. Facts ¶ 17 n.5.
Bertram accepted the results of Grant Thornton's
feasibility study and, in August 2002, he notified then
Acting FAA Administrator Monte Belger that he had decided to
proceed with an A-76 study for the FS function. Def. Facts
¶ 44; Def. MSJ, Ex. 11 [Dkt. 256-12]. Belger stated
that proceeding with an A-76 study was part of an effort to
meet the requirements of the President's Management
Agenda. Def. Facts ¶ 45. In his deposition, Bertram
claimed that he did not learn or consider the average age of
the FS workforce in the course of making the decision to
subject the FS function to an A-76 study, but instead based
that decision on budgetary and financial concerns.
Id. ¶¶ 48-50; see Bertram Dep.
[Ex. 47] at 106, 111. Bertram also testified that he did not
know if the staff members who advised him were aware of the
age of the FS workforce. Bertram Dep. at 112.
noted, John Hennigan was Bertram's deputy CFO during this
time. Def. Facts ¶ 51. Hennigan's office was in
charge of compiling the 2002 FAIR Act list of activities that
were not inherently governmental. Id. ¶¶
53-54. Hennigan stated in his deposition that he did not
consider age in determining what to classify an activity as
commercial on the inventory list. Id. ¶ 55. The
National Association of Air Traffic Specialists
(“NAATS”), the union that includes FS
specialists, challenged the decision to include FS
specialists on the FAIR Inventory in March 2003. Id.
¶ 56. The FAA denied the challenge and NAATS appealed to
the Department of Transportation, which upheld the FAA's
denial in May 2003. Id. ¶¶ 57-58. Only six
groups on the 2002 FAIR Inventory had more than 1, 101
full-time equivalent positions, including the FS specialists.
Id. ¶ 59. FS specialists were the only
workforce out of these six seriously considered for an A-76
study. Pl. Opp. Facts ¶ 21.
The A-76 Study Leading to the RIF
realizing that their budget office was not equipped to
undertake a major A-76 study, Bertram and Hennigan placed the
responsibility for conducting it in the newly created Office
of Competitive Sourcing. Def. MSJ at 24. Early in 2003, Joann
Kansier became the Director of that office, and Marilyn
Jackson-Brame her deputy director. Def. Facts ¶¶
68-69. Kansier was not personally involved in CFO
Bertram's earlier decision to subject the FS function to
the A-76 process. Id. ¶ 70. Jackson-Brame was
involved in the debate, but she was against the decision
Bertram made. Id. ¶¶ 71-72; Pl. MSJ, Ex. 9
at 94-97, 112 [Dkt. 265-7].
Kansier and Marion Blakey, the FAA Administrator, made
references to an “aging workforce” on numerous
occasions. In a June 25, 2003 briefing made to OMB and NAATS
about the A-76 process, Kansier listed “aging
workforce” as one of five items under the “State
of AFSS” that together created an opportunity for an
A-76 process for the FS function. Def. MSJ, Ex. 14 at ¶
01179 [Dkt. 256-15]. Kansier used a similar reference in two
slide presentations she gave on January 12, 2003, and August
1, 2003. Pl. MSJ, Ex. 20 at ¶ 01155, D007686 [Dkt.
263-24]. Kansier subsequently changed this “aging
workforce” language to “retirement eligible
workforce” on other slide presentations and on the FAA
website. Id. at ¶ 007193, P04428, P00003.
Administrator Blakey also referred to the FS workforce as
“eligible to retire” in two speeches, although
not as a reason for the A-76 process. Pl. MSJ, Ex. 55 at
¶ 01166, P00633 [Dkt. 265-43]. And plaintiff Kathleen
Breen testified at her deposition that the Administrator
specifically referred to the age of certain persons in
explaining why they should not be promoted. Breen Dep. at
the first steps in the A-76 process was for the FAA to create
a statement listing the requirements for bidders and what
work all bidders must perform. Def. Facts at ¶ 73; Def.
MSJ, Ex. 38 ¶ 5 [Dkt. 256-39] (Declaration of Joann
Kansier (“Kansier Decl.”)). The Office of
Competitive Sourcing formed a team to develop the statement
consisting of FAA management from the FS division, NAATS
union members, and contract support from Grant Thornton. Def.
Facts ¶¶ 74-75; Def. MSJ, Ex. 15 at 1 [Dkt.
256-16]. In December 2013, after requests for input from
interested parties, the FAA announced that it would subject
the FS function to the A-76 process and solicit bids. Def.
Facts ¶¶ 77-79; Kansier Decl. ¶ 7. Several FS
specialists - who are plaintiffs in this action - allege that
the FAA's statement soliciting bids significantly
understated the tasks performed by FS specialists. Pl. Opp.
Facts ¶ 26.
2004, the FAA released a formal request for bids to five
private sector companies who were selected to take part in
the competition, including Lockheed, and to the
government's in-house bidder - known as Most Efficient
Organization (“MEO”). Def. Facts ¶ 80;
Kansier Decl. ¶¶ 2, 8, 9. According to plaintiffs,
the FAA guaranteed a workforce to the winning bidder in the
sense that it promised that “the majority of the Flight
Service workforce would be made available to the winning
bidder.” Pl. Facts ¶ 9. At the very least, the FAA
told the winning bidder that many FS specialists would be
available to recruit. See Pl. MSJ, Ex. 16 at 17-19
[Dkt. 263-20]. Defendants, however, point to the official
solicitation for bids to show that the FAA did not guarantee
a workforce, but instead required that the winning bidder
offer a right of first refusal for employment opening[s] to
FAA employees who were qualified for those openings and
“who ha[d] been or will be adversely affected or
separated as a result of award of this contract.” Pl.
MSJ, Ex. 15 at § I.4 [Dkt. 263-19]. Further, one of the
items the FAA assessed when evaluating bids was “the
degree to which the staffing approach provides for
recruitment and retention to ensure delivery of effective
services to support safe and efficient flight.” Def.
MSJ, Ex. 18 at 10 [Dkt. 256-19] (Judge Neill Opinion, Public
Version (“Neill Opinion”)). The bidders then
presented both their technical and cost proposals, and
technical and cost evaluation teams at FAA reviewed the bids.
Def. Facts ¶¶ 81-82; Kansier Decl. ¶¶
11-12. The technical team rated Lockheed's proposal as
“excellent” on each of four factors, and the
MEO's proposal as “good” on one factor and
“satisfactory” on the other three. Def. Facts
¶¶ 86-87; Neill Opinion at 54-55. The cost team
concluded that Lockheed's bid was 5% less costly than the
MEO's. Def. Facts ¶ 87; Neill Opinion at 52.
then submitted the technical and cost team evaluations to the
Source Selection Evaluation Board, which the FAA tasked with
issuing a recommendation to the ultimate selection official.
Def. Facts ¶¶ 88, 90; Kansier Decl. ¶ 16; Def.
MSJ at 27. Kansier and contracting officer Donald King
chaired the board, which also consisted of both technical and
cost experts. Def. Facts ¶¶ 88, 90; Kansier Decl.
¶ 16. The Board rejected two findings of weaknesses and
one of costliness associated with the MEO proposal, but
ultimately concluded that Lockheed had the best technical
solution and “clearly provided the greatest benefit to
the Government.” Def. Facts ¶¶ 91-92; Neill
Opinion at 100. One Board official, Dennis DeGaetano,
concurred with the Board's recommendation because
Lockheed had the best bid, even though it cost slightly more
than one other proposal. Def. Facts ¶ 94. Kansier later
stated that the Board did not consider age in making its
decision. Kansier Decl. ¶ 26. DeGaetano also said that
he did not consider age in making the decision. Def. MSJ, Ex.
58 at 98 [Dkt. 256-59]; Def. MSJ, Ex. 36 ¶ 8 [Dkt.
256-37]. The FAA estimated that the Lockheed contract would
save taxpayers about $2.1 billion over the ten-year life of
the contract. Def. MSJ at 28. The FAA ultimately announced
the decision to award the contract to Lockheed on February 1,
2005. Id. at 29.
issued RIF notices to all FS employees covered by the
Lockheed contract in July 2005. Def. Opp. Facts ¶ 18;
Pl. MSJ, Ex. 19 [Dkt. 263-23]. The RIF occurred on October 3,
2005, thereby terminating plaintiffs' employment with the
FAA. Def. Facts ¶¶ 111, 114. Not every FS
specialist hired by the FAA lost his or her government
position because the FAA permitted some individuals to
continue in positions other than as FS specialists.
See Def. MSJ at 41.
Administrative Challenges to the RIF
the FAA announced that Lockheed had won the award, the MEO
and Kathleen Breen - as the agent for the FS specialists -
each filed contests with the Office of Dispute Resolution for
Acquisition to challenge the decision. Def. Facts
¶¶ 101-03; Neill Opinion at 3. Judge Edwin B. Neill
of the General Services Administration Board of Contract
Appeals served as the Special Master overseeing the contests.
Def. Facts ¶ 105. Judge Neill ultimately rejected both
contests in their entirety, applying standards of review that
ask whether the agency decision had a rational basis, whether
it was arbitrary, capricious or an abuse of discretion, and
whether it was supported by substantial evidence. Neill
Opinion at 61; Def. Facts ¶ 106. FAA Administrator
Blakey adopted Judge Neill's findings of fact and
recommendations in full. Id. ¶ 107. Breen did
not further appeal this determination. Def. MSJ at 31.
2005, nine plaintiffs filed this lawsuit on their own behalf
and as representatives of 834 others, alleging disparate
treatment and disparate impact claims under the ADEA.
See First Amended Class Action Complaint [Dkt. 3].
Judge Richard W. Roberts of this Court denied plaintiffs'
motion for a preliminary injunction against the RIF on
September 30, 2005, see Breen v. Mineta, No.
05-0654, 2005 WL 3276163, at *10 (D.D.C. Sept. 30, 2005), and
denied defendants' motion to dismiss for lack of
jurisdiction or, in the alternative, for summary judgment on
January 8, 2007. See Breen v. Peters, 474 F.Supp.2d
1, 9 (D.D.C. 2007). Defendants thereafter filed this motion
for summary judgment. Plaintiffs filed a cross motion for
summary judgment on the disparate impact claim, but later
withdrew the motion. See Plaintiffs' Unopposed
Motion to Withdraw Their Cross Motion for Summary Judgment
judgment is appropriate only if “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); see Baumann v. District of Columbia, 795
F.3d 209, 215 (D.C. Cir. 2015); Fed.R.Civ.P. 56(a), (c). In
making that determination, the Court must view the evidence
in the light most favorable to the nonmoving party and draw
all reasonable inferences in its favor. Baumann v.
District of Columbia, 795 F.3d at 215; see Tolan v.
Cotton, 134 S.Ct. 1861, 1866 (2014) (per curiam);
Anderson v. Liberty Lobby, Inc., 477 U.S. at 255;
Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir.
2011). A disputed fact is “material” if it
“might affect the outcome of the suit under the
governing law.” Talavera v. Shah, 638 F.3d at
308 (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. at 248). A dispute over a material fact is
“genuine” if it could lead a reasonable jury to
return a verdict in favor of the nonmoving party. See
Scott v. Harris, 550 U.S. 372, 380 (2007); Grimes v.
District of Columbia, 794 F.3d 83, 94-95 (D.C. Cir.
2015); Paige v. DEA, 665 F.3d 1355, 1358 (D.C. Cir.
2012). “Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge at summary
judgment. Thus, [the court] do[es] not ...