                                 UNITED STATES DISTRICT COURT
                                 FOR THE DISTRICT OF COLUMBIA

                                                         )
JAMES D. MOSES,                                          )
                                                         )
                            Plaintiff,                   )
                                                         )
                   v.                                    )                                 06-cv-01712 (RCL)
                                                         )
GENE L. DODARO, 1                                        )
Acting Comptroller General,                              )
                                                         )
                            Defendant.                   )
                                                         )


                                         MEMORANDUM OPINION

I.         INTRODUCTION

           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-reply2, 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


1
 Pursuant to Federal Rule of Civil Procedure 25(d), Mr. Dodaro, in his official capacity as Acting
Comptroller General of the United States, is automatically substituted as the named defendant.
2
    The plaintiff’s motion for leave to file a sur-reply will be denied. Sur-replies are rarely permitted, and
only “when a party is ‘unable to contest matters presented to the court for the first time’ in the last
scheduled pleading.” Ben–Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C. Cir. 2003). The plaintiff
states that his sur-reply is justified because the defendant’s reply contains material misstatements of both
fact and law. Pl.’s Mot. for Sur-Reply at 2. In arguing this point, the plaintiff states that “plaintiff’s
claims are entirely based upon ‘systematic disparate treatment’” and not a disparate impact theory of
recovery. Id. at 5. Because the only claims remaining for the plaintiff to litigate at the time of this filing
were his disparate impact claims, the Court denies this motion for leave to file a sur-reply as the
plaintiff’s disparate treatment claims were dismissed with prejudice in Judge Sullivan’s March 2011
Memorandum Opinion [117].
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.

II.    PROCEDURAL POSTURE

       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.




                                                 2
III.   BACKGROUND

       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.




                                                  3
        The defendant asserts that the GAO determined whether an employee would be placed

into Band IIA or Band IIB on three “assessment factors.” 3 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. 4 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


3
 The GAO’s process of placing employees into either Band began with each employee submitting an
application explaining why he or she should be placed into Band IIB not Band IIA, followed by a review
and recommendation made by team directors. Def.’s Renewed Mot. at 4.
4
 The COLA denied to the plaintiff amounted to a 2.6 percent increase in pay. The plaintiff was similarly
denied his 2007 COLA but has not asserted a claim based upon this denial.


                                                   4
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 § 3(c) (Sept. 22, 2008). Further,

Congress directed the GAO to award those same employees a lump sum payment equal to the

sum of money (plus 4 percent) they would have received had they been granted the COLAs

when they were effectuated. See id. § 3(d). The plaintiff’s salary was subsequently increased by

$3,323, and he received a lump sum payment of $9,751.87.

IV.    ANALYSIS

       A. Defendant’s Motion for Summary Judgment

       The plaintiff alleges that the GAO’s Band II restructuring resulted in a disproportionate

number of older employees being placed in Band IIA while favoring younger employees, and

additionally resulted in older employees being denied their 2006 COLA in violation of the

ADEA. See Am. Compl. ¶ 63. The defendant asserts that the Court lacks jurisdiction to hear

this claim because the ADEA does not permit suits brought under the theory of disparate impact

against federal employers. Def.’s Renewed Mot. at 15. The defendant additionally asserts the

affirmative defense that the alleged adverse impact, if present, was the result of reasonable

factors other than age. Id. at 21.

       The ADEA makes it unlawful for an employer to discriminate against any employee or

potential employee on the basis of age except “where age is a bona fide occupational

qualification reasonably necessary to the normal operation of the particular business, or where

the differentiation is based on reasonable factors other than age.” 29 U.S.C. § 623(f)(1). The




                                                5
Supreme Court has fashioned two separate models whereby an aggrieved individual may seek to

redress a claim of discrimination—the disparate treatment and the disparate impact theories of

liability. A disparate treatment claim will lie when an individual is treated differently by an

employer on the basis of a protected characteristic. Int’l Bhd. of Teamsters v. United States, 431

U.S. 324, 335-36 (1977). In contrast, a disparate impact claim exists when an employment

practice, though neutral on its face in its treatment of different groups, falls more harshly on one

group than another and cannot be justified by business necessity. Unlike a disparate treatment

claim, plaintiffs asserting a disparate impact claim need not establish a discriminatory motive on

the part of the employer. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993).

        The availability of disparate treatment claims under the ADEA is well settled, see Trans

World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985), as well as disparate impact claims against

non-federal employers pursuant to 29 U.S.C. § 623(f)(1), see Smith v. City of Jackson, 544 U.S.

228 (2005); however neither the Supreme Court nor the D.C. Circuit has addressed the issue of

whether the ADEA authorizes disparate impact claims against the federal government. Koger v.

Reno, 98 F.3d 631, 639 n.2 (D.C. Cir. 1996) (declining to decide whether a disparate impact

claim brought against the federal government under the ADEA was legally cognizable because

the evidence presented failed to support a prima facie case of disparate impact); Arnold v. United

States Postal Serv., 863 F.2d 994, 995-96 (D.C. Cir. 1988).

        Assuming arguendo that a disparate impact claim is legally cognizable against a federal

employer, 5 the plaintiff has not met the standard for bringing such a claim. A claim that a


5
  The D.C. District Court is divided on whether the ADEA authorizes disparate impact claims against the
federal government. See, e.g., Silver v. Leavitt, 2006 WL 626928 (D.D.C. 2006) (Bates, J.) (holding that
Congress has not waived sovereign immunity for disparate impact claims against federal employers given
that Smith specifically limited its holding to disparate impact claims comparable to Griggs—a non-federal
employer—and the Supreme Court’s acknowledgement that the ADEA varies distinctively from Title
VII); but see Breen v. Peters, 474 F. Supp. 2d 1, 6 (D.D.C. 2007) (Roberts, J.) (stating that “the plain


                                                   6
facially neutral employment practice disproportionately imposed an injury on older employees

may raise a rebuttable inference of disparate impact, but it is not enough to prevail. Breen v.

Mineta, 2005 WL 3276163 at *7 n.6 (D.D.C. Sept. 30, 2005) (Roberts, J.). The defendant has

the opportunity to assert the affirmative defense that the alleged adverse impact was attributable

to a reasonable factor other than age.     City of Jackson, 544 U.S. at 241.      The burden of

persuasion for this affirmative defense falls on the employer. Meacham v. Knolls Atomic Power

Lab., 554 U.S. 84, 128 (2008). A plaintiff then has the opportunity to rebut the reasonable factor

other than age by demonstrating that the factors offered by the defendant are unreasonable. See

e.g., City of Jackson, 544 U.S. at 243 (noting that the reasonable factors other than age defense

does not permit a rebuttal that other reasonable methods not resulting in a disparate impact were

available).

       Here, the record shows that the defendant put forth specific reasons for restructuring the

Band II pay scale. The defendant additionally submitted factors such as length of time in the

position, roles and responsibilities of the employee, past performance, and potential performance

as reasonable factors other than age for deciding which employees were placed into Band IIB.

Further, the defendant asserts that the GAO relied on these factors when deciding which

employees would receive a COLA in 2006 by stating that “providing a COLA to these

employees would undercut the purpose of the Band II restructuring . . . which was to ensure that

employees were paid at market rates.” Plaintiff does not respond to these arguments, and it is

not the Court’s duty to supply these arguments in the plaintiff’s stead and then rule on them. In

his opposition to the defendant’s motion for summary judgment, plaintiff merely argues that no

discovery has been permitted, and additionally, that the statistical data submitted by the

language of § 633a(a) does not support the distinction between disparate treatment and disparate
impact[,]” and Congress has waived sovereign immunity).



                                                7
defendant’s expert witness arguing that no adverse impact occurred is faulty. Because the

plaintiff does not address the affirmative defense in his response, the Court will treat it as

conceded. Ray v. F.B.I., 2007 WL 1404445 *2 (D.D.C. May 10, 2007) (Lamberth, J.) (“When a

plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised

by the defendant, a court may treat those arguments that the plaintiff failed to address as

conceded.”) (citations omitted). Defendant’s motion for summary judgment will therefore be

granted, and an Order consistent with this Memorandum Opinion will be issued separately. In

light of the Court’s decision on the defendant’s motion for summary judgment, the plaintiff’s

Motion to Strike the defendant’s expert witness is moot.

       B. Plaintiff’s Motion for Reconsideration

       The plaintiff also requests that the Court reconsider its decision denying him discovery in

the previously dismissed disparate treatment claims. The plaintiff argues that “[t]his case is

bereft of discovery, from its beginning, in 2006, until now.” Pl.’s Opp’n at 9. To clarify, the

plaintiff has not—as to the current summary judgment motion—complied with Rule 56(d) and

has only argued for discovery that goes to the disparate treatment claims, not the disparate

impact claims.

       A district court may revise its own interlocutory rulings “at any time before the entry of

judgment adjudicating all the claims and all the parties' rights and liabilities.” Fed. Civ. P. 54(b).

The standard of review for interlocutory orders differs from the standard of review for final

judgments under Federal Rules of Civil Procedure 59(e) and 60. See, e.g., Campbell v. United

States Dept. of Justice, 231 F.Supp.2d 1, 7 (D.D.C. 2002) (citing cases). The primary reasons for

amending an interlocutory ruling pursuant to Rule 59(e) are “an intervening change of

controlling law, the availability of new evidence, or the need to correct a clear error or prevent




                                                  8
manifest injustice.” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (internal

quotation omitted). The Court may reconsider any interlocutory ruling “as justice requires.”

Childers v. Slater, 197 F.R.D. 185, 190 (D.D.C. 2000) (quoting Fed. R. Civ. P. 60(b) Advisory

Comm. Notes). Motions for reconsideration “are not simply an opportunity to reargue facts and

theories upon which a court has already ruled.” Black v. Tomlinson, 235 F.R.D. 532, 533

(D.D.C. 2006) (internal quotations omitted).

       The Court previously denied the plaintiff’s requests for discovery stating, “[p]laintiff has

failed to demonstrate the necessity of discovery to oppose defendant’s motion . . . . He merely

asserts that disclosure of various information ‘would furnish evidence determinative of the

relevant facts at issue in this action.’” Mem. Op. at 14, Mar. 31, 2011. The Court finds that the

arguments made by the plaintiff in support of the current motion are merely rehashing previous

arguments already rejected by this Court. Additionally, the plaintiff identifies no intervening

change of controlling law and no new evidence that was previously unavailable. Accordingly,

the plaintiff’s motion for reconsideration is DENIED.

V.     CONCLUSION

       For the foregoing reasons, the Court GRANTS the defendant’s motion [126] for

summary judgment and DENIES the plaintiff’s cross-motion [135] for reconsideration and

motion [137] for leave to file a sur-reply. The Court additionally DISMISSES the plaintiff’s

cross-motion [135] to strike and motion [142] for hearing on the status of the case as moot.

       Signed by Royce C. Lamberth, Chief Judge, on January 12, 2012.




                                                9
