Moses v. DODARO
2011 U.S. Dist. LEXIS 34495
D.D.C.2011Background
- Moses, a GAO employee since 1967, sued GAO alleging age discrimination under the ADEA and sought to represent ~300 GAO auditors.
- GAO restructured Band II into Band IIA and Band IIB in 2005‑2006; Moses applied for Band IIB but was placed in Band IIA and did not receive a 2006 COLA.
- GAO denied Moses’ Band IIB placement under the Past Performance criteria, claiming he failed to meet the criteria.
- GAO later raised Band IIB promotions in 2007 and, via GAO Act of 2008, Congress directed COLA restoration/lump-sum payments for 2006–2007 affected employees.
- GAO Act § 3(g) purportedly provides exclusive remedy and bars court/judicial review for 2006/2007 COLA claims; the Act’s retroactivity is contested.
- Court had previously allowed two discrete discriminatory actions to proceed and denied in part and granted in part the prior motion to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Retroactivity of GAO Act 2008 to COLA claims | Moses argues Act retroactively strips courts of jurisdiction for COLA claims. | GAO argues Act is retroactive and precludes relief. | Act not retroactive; jurisdiction retained; COLA claim not dismissed on jurisdictional grounds. |
| Whether COLA claim is moot | Cola denial still constitutes ongoing discrimination relief. | Lump sum plus 4% allegedly satisfies remedy; no further relief possible. | COLA claim not moot; potential for further relief remains. |
| Summary judgment on Band II restructuring/disparate treatment | Age influenced Band IIA vs IIB placement and COLA denial. | Non‑discriminatory, objective criteria justified Band IIA placement and COLA denial. | Grant of summary judgment for defendant on disparate treatment claim; pretext not shown. |
| Sustainability of disparate impact claim | Band II restructuring/COLA denial disproportionately affected those over 50. | Band IIB criteria and COLA policy neutral and generally applicable. | Disparate impact claim survives; not resolved on summary judgment. |
Key Cases Cited
- LaFontant v. INS, 135 F.3d 158 (D.C.Cir.1998) (retroactivity analysis; procedure versus substance; agency proceedings cannot create substantive relief)
- Landgraf v. USI Film Prods., 511 U.S. 244 (U.S. 1994) (retrospective application of statutes analyzed by substantive versus procedural effect)
- Aliotta v. Bair, 614 F.3d 556 (D.C.Cir.2010) (ADEA disparate treatment and disparate impact recovery paths; burden shifting)
- Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (U.S. 2000) (pretext and discrimination evidence standards in ADEA cases)
- Ford v. Mabus, 629 F.3d 198 (D.C.Cir.2010) (prima facie case burden and shifting to employer for non‑discriminatory reasons)
- Brady v. Office of Sergeant at Arms, 520 F.3d 490 (D.C.Cir.2008) (summary judgment standard post‑discrimination defense)