840 F. Supp. 2d 281
D.D.C.2012Background
- Moses, a GAO Band II analyst, sued the Acting Comptroller General alleging age-based discrimination under the ADEA and sought to represent ~300 GAO auditors.
- In Nov 2005, GAO split Band II into Band IIA and Band IIB; to be in Band IIB, employees had to meet three assessment factors.
- Moses’ Band II placement was into Band IIB; he challenged this and the denial of a 2006 COLA, arguing age discrimination and disparate impact.
- Old pay scales were restructured; Band IIA maximum pay decreased, causing some employees (including Moses) to receive higher salaries than the new caps, while most received a 2006 COLA.
- Congress enacted the Government Accountability Act of 2008, directing COLA corrections and lump-sum payments for those denied COLAs; Moses received a raise and a lump sum.
- The court previously dismissed/disallowed certain claims and, in 2011, granted summary judgment on Moses’ disparate treatment claim while leaving open disparate impact considerations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ADEA permits disparate impact claims against the federal government | Moses argues for a cognizable disparate impact claim under ADEA. | Dodaro contends the ADEA does not authorize federal disparate impact claims or that such claims fail on the record. | Disparate impact cognizability assumed; summary judgment granted on the claim. |
| Whether Band II restructuring and COLA denial violated the ADEA as a disparate impact | Plaintiff asserts the restructuring disproportionately affected older employees and denied 2006 COLAs based on age. | GAO conducted factors (roles, time in position, performance, potential) as reasonable factors other than age; benefits and COLA decisions tied to those factors. | Court granted summary judgment for defendant on this theory. |
| Whether the plaintiff is entitled to discovery related to the (now-dismissed) disparate treatment claims | Moses seeks discovery to oppose the defendant’s motion. | Discovery not warranted given prior rulings and procedural posture. | Reconsideration denied; discovery remains denied. |
Key Cases Cited
- Int'l Bhd. of Teamsters v. United States, 431 U.S. 324 (U.S. 1977) (differing models: disparate treatment vs. disparate impact)
- Hazen Paper Co. v. Biggins, 507 U.S. 604 (U.S. 1993) (disparate-impact framework and business necessity analyze)
- Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (U.S. 1985) (availability of disparate treatment claims under ADEA)
- Smith v. City of Jackson, 544 U.S. 228 (U.S. 2005) (disparate-impact claims and statutory scope under ADEA)
- City of Jackson v. Meacham, 544 U.S. 227 (U.S. 2005) (reasonableness of factors other than age; burden-shifting framework)
- Breen v. Peters, 474 F. Supp. 2d 1 (D.D.C. 2007) (district court on disparate-impact theories under ADEA)
- Koger v. Reno, 98 F.3d 631 (D.C. Cir. 1996) (addressing disparate-impact viability against federal government)
- Arnold v. United States Postal Serv., 863 F.2d 994 (D.C. Cir. 1988) (agency employment decisions and ADEA framework)