                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA

 HAROLD D. SCHULER,                               )
                                                  )
                      Plaintiff,                  )
                                                  )
               v.                                 )   Civil Case No. 05-2355 (RJL)
                                                  )
 PRICEWATERHOUSECOOPERS, LLP,                     )
                                                  )
                      Defendant.          1()     )


                              MEMORA~ OPINION
                          (September2t,.2010) [#41, #44, #45]

       Plaintiff, Harold D. Schuler ("Schuler"), filed this lawsuit against his employer,

PricewaterhouseCoopers, LLP (,'PwC" or "defendant"), alleging a pattern and practice of

age discrimination in PwC's promotion policy, in violation of the Age Discrimination in

Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., and the District of

Columbia Human Rights Act ("'DCHRA"), D.C. Code § 2-140l.01 et seq. Currently

pending before the Court are defendant's Motion for Summary Judgment and plaintiffs

Motion for a Permanent Injunction or, in the Alternative, for a Preliminary Injunction

Pending Trial. Upon review of the pleadings, the entire record, and the applicable law,

defendant's motion is GRANTED, and plaintiffs motion is DENIED.

                                    BACKGROUND

      This matter is before the Court on remand from our Circuit Court. Because I have

previously summarized the factual background of this matter in an earlier Memorandum

Opinion, see Schuler v. PricewaterhouseCoopers, LLP, 457 F. Supp. 2d 1 (D.D.C. 2006)




                                             1
("Schuler F'), the following short summary will suffice. 1 PwC is an accounting and audit

firm with over 20,000 employees and more than 2,000 individuals who are partners or

principals. (Def.'s Stmt.           ~   2.) PwC is organized and exists pursuant to the PwC

Partnership and Principals Agreement ("the Partnership Agreement"), which provides

that "[ a]n Individual's association with the Firm shall cease at the end of the Fiscal Year

in which he or she attains age 60." (Def.'s Stmt.            ~   2; PI.'s Ex. 1, Art. 10, Sec. 10.I(a).)

The term "Individual" is defined as "a person who is either a Partner or a Principal."

(PI.'s Ex. 1, Art. 1.) The sole parties to the Partnership Agreement are the partners and

principals ofPwC; there is no such mandatory retirement provision for PwC employees.

(Def. 's Stmt.   ~   15.)

        Defendant's partnership promotions go into effect on July 1 of each year, (Compi.

~   16; Answer ~ 16), and Schuler, a Managing Director in the Washington, D.C. office,

was not among those promoted in either 2004 or 2005. (Compi.                   ~~   2,39.) Based on his

non-promotions, Schuler filed a charge of discrimination with the New Yark City District

Office of the U.S. Equal Employment Opportunity Commission ("EEOC") on February

23,2005. (Compi.            ~   44; Answer Ex. 2 at 4-9; Marcus Deci. Ex. A at 4.) On the charge

form, Schuler indicated that his was a "Class Action Charge," that the latest act of


         Additional factual background can be found in a bevy of prior opinions in two related
cases: Murphy v. PricewaterhouseCoopers, LLP, No. 02-982 (D.D.C. filed May 20, 2002) and
Murphy v. PricewaterhouseCoopers, LLP, No. 05-1054 (D.D.C. filed May 26,2005). Those
litigations spawned several opinions by both the District Court and the Circuit Court: Schuler v.
PricewaterhouseCoopers, LLP, 595 F.3d 370 (D.C. Cir. 2010); Murphy v.
PricewaterhouseCoopers, LLP, 580 F. Supp. 2d 4 (D.D.C. 2008) (relating to Murphy's claims);
Murphy v. PricewaterhouseCoopers, LLP, 580 F. Supp. 2d 16 (D.D.C. 2008) (relating to
Schuler's claims); Murphy v. PricewaterhouseCoopers, LLP, 357 F. Supp. 2d 230 (D.D.C.
2004).


                                                        2
discrimination by defendants took place on "July 1, 2004 or later," and that Schuler

wanted the charge filed with the "New York City (N.Y.) Commission Human Rights, and

New York State Div. of Human Rights, and EEOC." (Answer Ex. 2 at 4; Marcus DecI.

Ex. A at 4.) Schuler also wrote above the signature line on the charge form: "1 want this

Class Action Charge filed with both the EEOC and the State and local Agency, if any."

(Answer Ex. 2 at 4; Marcus Decl. Ex. A at 4.)

       On March 14,2005, Schuler received a letter acknowledging receipt of his charge

from the EEOC's New York District Office. (Marcus DecI. Ex. A at 1; see CompI.          ~   45.)

On April 28, 2005, the EEOC's New York District Office informed Schuler that the

EEOC was dismissing his charge because a case was pending in this Court, ostensibly a

reference to a 2002 lawsuit that Schuler filed with a co-plaintiff, C. Westbrook Murphy,

against PwC, Murphy v. PricewaterhouseCoopers, LLP, No. 02-982 (D.D.C. filed May

20, 2002), that also alleged ADEA and DCHRA violations. (Answer Ex. 3 at 1.) The

notice informed Schuler that he could file suit regarding his latest EEOC charge in

federal district court within ninety days, a time limit the parties tolled as they attempted

to settle the case. See Schuler v. PricewaterhouseCoopers, LLP, 514 F .3d 1365, 1369

(D.C. Cir. 2008) ("Schuler IF'). When negotiations failed, Schuler filed the present

action in this Court, asserting that he was "filing an opt-in class action suit on behalf of

himself and other similarly situated employees over the age of 45" whom PwC

discriminated against "by denying them promotions to partnership on the basis of their

age." (CompI.   ~~   47-48.)

       In Schuler I, this Court dismissed Schuler's complaint, holding that plaintiff did


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not satisfy the ADEA's procedural requirements because he failed to file: (1) his EEOC

charge with the D.C. Office of Human Rights; and (2) a new EEOC charge following the

company's allegedly unlawful July 2005 promotion denial. See Schuler I, 457 F. Supp.

2d at 4-5. I declined to exercise supplemental jurisdiction over the remaining DCHRA

claims. See id. at 5. On appeal, our Circuit Court reversed, holding that Schuler had

"satisfied the ADEA's state filing requirement by virtue of a work sharing agreement

between the EEOC and the D.C. Office of Human Rights, as well as through the

Commission's referral of his charge to the New York State Division of Human Rights."

Schuler 11,514 F.3d at 1367. The Circuit Court further held that "because plaintiff seeks

damages flowing from the July 2004 ADEA violation alleged in his original EEOC

charge through the present, his failure to file a new charge after the July 2005

nonpromotion decision is of no consequence." Id. The matter was remanded for this

Court to reconsider Schuler's claim as "a class-action pattern or practice ADEA claim

arising out of PwC's mandatory retirement and promotion policy" and to decide again

whether to exercise supplemental jurisdiction over Schuler's DCHRA claim. Id. at 1379-

80.

                                        ANALYSIS

I.     Standard of Review

       Summary jUdgment is appropriate when the pleadings and the record demonstrate

that "there is no genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the initial

burden of demonstrating the absence of a genuine dispute of material fact, Celotex Corp.


                                              4
V.    Catrett, 477 U.S. 317, 323 (1986), and the Court draws all reasonable inferences

regarding the assertions made in a light favorable to the non-moving party, Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The party opposing a motion for

summary judgment, however, "may not rest upon the mere allegations or denials of his

pleading, but ... must set forth specific facts showing that there is a genuine issue for

trial." Anderson, 477 U.S. at 248 (internal quotations omitted).

II.       ADEA Pattern and Practice Claim

          Plaintiff has filed a Motion for a Permanent Injunction or, in the Alternative, for a

Preliminary Injunction Pending Trial, and defendant has filed a Motion for Summary

Judgment. In support ofplaintiffs motion, which is essentially one for partial summary

judgment, Schuler argues that PwC has violated the ADEA by engaging in a pattern and

practice of discrimination against him and other employees that he can establish by

statistical evidence. Schuler also argues that PwC's partner promotion policy has a

disparate impact on Schuler and other employees on the basis of their age in violation of

the ADEA. Plaintiff asks the Court to issue a permanent injunction barring PwC from

continuing its allegedly discriminatory partner promotion policy or, if the Court finds that

Schuler is not entitled to judgment as a matter of law, to issue a preliminary injunction

until trial.

          In support of its motion, defendant argues that Schuler is seeking to reincarnate

claims initially asserted in the lawsuit filed with Murphy in 2002 and dismissed by the

Court on cross-motions for summary judgment. Defendant asserts that because this

Court held in Murphy v. PricewaterhouseCoopers, LLP, 357 F. Supp. 2d 230 (D.D.C.


                                                5
2004) ("Murphy"), that an individual, non-class plaintiff cannot proceed on a pattern and

practice ADEA claim as a matter of law, plaintiffs claims in this matter are barred by the

doctrine of collateral estoppel. Defendant further asserts that even if Schuler is not

barred as a matter of law from pursuing his claims, summary judgment in favor of PwC is

still warranted on the undisputed facts.

       I agree with PwC that Schuler's ADEA pattern and practice claim is barred by the

doctrine of collateral estoppel. In their 2002 lawsuit, Murphy and Schuler asserted an

ADEA pattern and practice claim, alleging that PwC had a policy and practice of denying

older employees promotion to partner in favor of younger employees, but seeking relief

for their specific non-promotions in 1999,2000, and 2001. (Compl., No. 02-982, ~~ 19,

29,43-45.) The parties filed cross-motions for summary judgment on the pattern and

practice claim. I granted PwC's Motion for Summary Judgment, agreeing with PwC that

Murphy and Schuler could not proceed on a pattern and practice claim in an individual

action for discrimination in violation of the ADEA. See Murphy, 357 F. Supp. 2d at 247.

       As an initial matter, I found that in the administrative charges underlying Murphy,

the plaintiffs did not give notice of their intent to proceed as a class action. Murphy, 357

F. Supp. 2d at 241. Because notice to PwC was a necessary prerequisite to the viability

of any claims, I granted the defendants' motion to dismiss the class allegations of the

compliant. Id. Then when examining the motions with regard to the pattern and practice

claim, I first noted that our Circuit recognizes "an important distinction between the

assertion of a 'pattern and practice' claim and the use of statistical or other evidence of

systematic discrimination to prove an individual discrimination claim." Id. at 246. I also


                                              6
noted that "where courts in this Circuit have recognized 'pattern and practice' -type

claims, the plaintiffs were proceeding on behalf of a class." Id. at 247 (citing Cook v.

Boorstin, 763 F.2d 1462 (D.C. Cir. 1985); Hyman v. First Union Corp., 980 F. Supp. 38

(D.D.C. 1997)). Accordingly, I held that

       in light of this Court's earlier finding that the plaintiffs may not proceed
       with their class allegations because they failed to adequately allege such
       claims at the administrative level, it additionally concludes that they are
       barred from proving their discrimination claims under a 'pattern and
       practice' theory.

ld. Put simply, Murphy and Schuler were barred from pursuing a pattern and practice

claim under the ADEA because they had failed to bring it as class action.

       Not surprisingly, when Schuler filed his 2005 charge of discrimination that led to

the instant action, he indicated that it was a "Class Action Charge." (Answer Ex. 2 at 4;

Marcus Decl. Ex. A at 4.) He also titled his Complaint in this action as a "Class

Complaint for Relief From Age Discrimination in Employment." (Compi. at 1.) Despite

these indications that he intended to proceed on behalf of a class, Schuler has not moved

for notice of a collective action, and thus no allegedly similarly situated employees have

ever opted-in to this case. (See Pl.'s Mot. for Leave to File Ex. A at 10 [Dkt. #35]

("Although Plaintiff does not intend to file a motion for collective action at the present

time, he reserves the right to do so at a later date.").) Schuler has also chosen not to

move for class certification on the DCHRA claim, despite his Complaint's averments that

the requirements for such certification are met. (See Compi.    ~   58.) In sum, Schuler is

pursuing a pattern and practice claim in this case as an individual, non-class plaintiff, just

as he and Murphy did in their 2002 lawsuit. It will not work! After all, it doesn't take a


                                              7
law degree to figure out that you can put a lipstick on a pig, but it's still a pig.

       "The Supreme Court has defined issue preclusion to mean that 'once a court has

decided an issue of fact or law necessary to its judgment, that decision may preclude

relitigation of the issue in a suit on a different cause of action involving a party to the first

case.'" Yamaha Corp. v. United States, 961 F.2d 245,254 (D.C. Cir. 1992) (quoting

Allen v. McCurry, 449 U.S. 90, 94 (1980)). "To preclude parties from contesting matters

that they have had a full and fair opportunity to litigate protects their adversaries from the

expense and vexation attending mUltiple lawsuits, conserves judicial resources, and

fosters reliance on judicial action by minimizing the possibility of inconsistent

decisions." Montana v. United States, 440 U.S. 147, 153-54 (1979). The standards for

establishing the preclusive effect of a prior holding are: (1) the same issue now being

raised must have been contested by the parties and submitted for judicial determination in

the prior case; (2) the issue must have been actually and necessarily determined by a

court of competent jurisdiction in that prior case; and (3) preclusion in the second case

must not work a basic unfairness to the party bound by the first determination. Yamaha,

961 F.2d at 254.

       This case meets all three requirements for finding issue preclusion. The

underlying factual allegations in the complaints filed in Murphy and Schuler I are

essentially identical, while seeking relief for non-promotion in different partner

admission cycles at PwC. See Montana, 440 U.S. at 157-58 (noting that because the

complaint in the second case "tracks almost verbatim" the allegations of the prior case

and absent any "significant changes in controlling facts or legal principles," the prior


                                               8
resolution was preclusive) (internal quotation marks and citation omitted). Although I

did not reach the merits on the pattern and practice theory of recovery in its Murphy

ruling, I did issue a final judgment on the necessary legal issue of whether an individual,

non-class plaintiff may proceed on a pattern and practice theory in an ADEA

discrimination case. That holding in Murphy rested upon a finding that, as a matter of

law, an individual plaintiff cannot pursue a pattern and practice ADEA discrimination

claim. See Murphy, 357 F. Supp. 2d at 247; see also Yamaha, 961 F. 2d at 254 ("[O]nce

an issue is raised and determined, it is the entire issue that is precluded, not just the

particular arguments raised in support of it in the first case.") (emphasis in original). It

does not appear that the plaintiffs ever appealed this aspect of the Murphy ruling, nor has

Schuler provided any basis in his briefing following remand in Schuler II to reverse this

ruling. Nor can it be said that finding Schuler's claim to be estopped works a "basic

unfairness" to him, since he is asserting the same claim against the same defendant, with

no significant change in facts or law. No subsequent development in the law of our

Circuit, or any other Circuit for that matter, has changed the rationale underlying my

ruling in Murphy that an individual, non-class plaintiff cannot pursue a pattern and

practice ADEA claim. See Murphy, 357 F. Supp. 2d at 246-47 (citing Palmer v. Shultz,

815 F.2d 84, 90-91 (D.C. Cir. 1987); Williams v. Boorstin, 663 F.2d 109, 115 n.38 (D.C.

Cir. 1980); Cook v. Boorstin, 763 F.2d 1462 (D.C. Cir. 1985); Hyman v. First Union

Corp. 980 F. Supp. 38 (D.D.C. 1997)); see also id. at 246 n.13 (discussing the "seminal

case" of Int 'I Bhd. O/Teamsters v. United States, 431 U.S. 324 (1977), which stated that

for a class of employees, "proof of the pattern or practice supports an inference that any


                                               9
particular employment decision, during the period in which the discriminatory policy was

in force, was made pursuant to that policy").     2


        Furthermore, Schuler's reliance on Davis v. Califano, 613 F.2d 957 (D.C. Cir.

1979), in his pleadings is misplaced. Schuler argues that Davis stands for the proposition

that a pattern and practice suit can be pursued by an individual plaintiff in our Circuit.

(See Pl.'s Opp'n 6-8.) In fact, Davis held that aprimajacie case in an individual claim

of discrimination could be established based on statistical evidence, as it might be in a

pattern and practice case. See Davis, 613 F.2d at 962 ("We have previously indicated,

and now explicitly hold, that statistical evidence may establish a [p ]rima facie case of

employment discrimination in an individual case."). The Davis court did not adopt the

pattern and practice framework in an individual plaintiffs claim of discrimination; rather,

it discusses the use of statistical evidence commonly seen in pattern and practice cases in

the context of individual plaintiffs' cases under the familiar McDonnell-Douglas burden-



2
        The Supreme Court has not spoken directly on this issue and has provided only opaque
reference to the difference between an individual's discrimination claim and a class action
alleging a pattern or practice of discrimination. Cooper v. Fed. Reserve Bank of Richmond, 467
U.S. 867, 876 (1984) ("The crucial difference between an individual's claim of discrimination
and a class action alleging a general pattern or practice of discrimination is manifest."). Courts
in every other Circuit that has touched on this issue have indicated that an individual plaintiff
cannot maintain a pattern and practice claim. See, e.g., Velez v. Marriott PR Mgt., Inc., 590 F.
Supp. 2d 235, 243-45 (D.P.R. 2008); Brown v. Coach Stores, Inc., 163 F.3d 706, 711 (2d Cir.
1998); Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 759-62 (4th Cir. 1998), vacated on
other grounds, 527 U.S. 1031 (1999); Celestine v. Petroleos de Venezuella SA, 266 F.3d 343,
355-56 (5th Cir. 2001); Bacon v. Honda, 370 F.3d 565, 575 (6th Cir. 2004); Babrocky v. Jewel
Food Co., 773 F.2d 857, 866 n.6 (7th Cir. 1985); Cratk v. Minnesota State Unt., 731 F.2d 465,
469-70 (8th Cir. 1984); Mansourian v. Bd. of Regents, No. CIV. 2-03-02591-FCD-EFB, 2007
WL 3046034, *7-*8 (E.D. Cal. Oct. 18,2007), rev 'd on other grounds, 594 F.3d 1095 (9th Cir.
2010), amended on other grounds, 602 F.3d 957 (9th Cir. 2010); Semsroth v. City of Wichita,
304 F. App'x. 707, 715-17 (10th Cir. 2008); Davis v. Coca-Cola Bottling Co. Canso!., 516 F.3d
955,967-69 (11 th Cir. 2008).


                                                10
shifting framework. See id. at 962-63. In addition, Murphy explicitly discusses Davis

and the fact that "the D.C. Circuit has held that statistical evidence[] may establish a

primafacie case of discrimination in an individual action." Murphy, 357 F. Supp. 2d at

247 (citing Davis, 613 F.2d at 962). Schuler's attempt to conflate the type of evidence an

individual may use in a discrimination case and the type of claim that an individual may

bring is disingenuous, at best. 3

        Schuler also attempts to distinguish his pattern and practice claim from prior case

law by arguing that "collective actions" brought under the ADEA should be treated

differently from "class actions" brought under Title VII because the former involve an

"opt-in" class rather than the latter's "opt-out" class. This too must fail. First, Schuler

himself styled the charge filed with the EEOC as a "class action charge," (see Answer

Ex. 2 at 4), and the Complaint filed in this case as a "class complaint," (see Compl. at 1).

Our Circuit Court similarly described Schuler's complaint as a "class-action complaint,"

Schuler II, 514 F.3d at 1367, specifically described his federal claim as a "class-action

pattern or practice ADEA claim," id. at 1379, and described his EEOC charge as a "class-

action charge," id. at 1369. Second, my holding in Murphy that an individual, non-class

plaintiff cannot proceed on a pattern and practice basis was limited to the ADEA context.

3
        Similarly, plaintiffs reliance on Thiessen v. General Electric Capital Corp., 267 F.3d
1095 (lOth Cir. 2001), is misplaced. (Pl.'s Mot. 8.) Schuler claims that the Tenth Circuit, in
Thiessen, "held that a class action does not need to be certified for the pattern-or-practice theory
to apply." (Jd at 8.) In actuality, Thiessen concerned not whether individuals can pursue pattern
and practice claims but the appropriate process of certifying a class for a pattern and practice
claim:
        We do not hold that whenever there is evidence of a pattern-or-practice, a class
       must be certified. Whether certification or decertification is appropriate depends
        upon application of the factors we have identified in the ad hoc approach.
Thiessen, 267 F.3d at 1108.


                                                 11
And unlike in Murphy, Schuler has admittedly chosen not to take the essential first step

of moving for notice to potential class members in the present case, and thus no allegedly

similarly situated employees ever opted-in to a class for this case. (See PI.'s Mot. for

Leave to File Ex. A at 10 [Dkt. #35].) Thus, any purported differences between class and

collective actions are irrelevant because there simply is no class of plaintiffs in this case.

The bottom line is clear: Schuler is proceeding as an individual, non-class plaintiff, and

as such, he cannot pursue his "pattern and practice" claim as a matter of law. 4

III.   DCHRA Claim

       Finally, the Complaint also alleges that defendant violated certain provisions of

the DCHRA. A federal district court may exercise supplemental jurisdiction over a

plaintiffs state law claims if they are "so related to claims in the action within such

original jurisdiction that they form part of the same case or controversy." 28 U.S.C.

§ 1367(a). The decision to exercise supplemental jurisdiction, however, is discretionary.

Osborn v. Haley, 549 U.S. 225, 245 (2007). When deciding whether or not to exercise

supplemental jurisdiction, a court is to consider judicial economy, convenience, fairness,

and comity. United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966).

       In this case, the Court's original jurisdiction is over Schuler's ADEA claim.

Considering that the Court has granted defendant's Motion for Summary Judgment and

dismissed Schuler's ADEA claim, it would not be in keeping with judicial economy or

4
        Moreover, Schuler's attempt to generate a disparate impact claim at this late stage is
unavailing. See Pl.' s Mot. at 28-32. Nowhere in Schuler's complaint or his EEOC charge has
Schuler challenged any facially neutral policy that purportedly adversely affects older
employees. Schuler has simply not raised any claims of disparate impact that he can now rely on
to survive defendant's Motion for Summary Judgment.


                                              12
comity to maintain jurisdiction over the remaining state law claim. See id. Therefore, I

decline to exercise supplemental jurisdiction over Schuler's DCHRA claim.

                                    CONCLUSION

      For all of the foregoing reasons, defendant's Motion for Summary Judgment is

GRANTED, and plaintiffs Motion for a Permanent Injunction, in the Alternative, for a

Preliminary Injunction Pending Trial is DENIED. Furthermore, plaintiffs DCHRA

claims for 2004 and 2005 are dismissed without prejudice pursuant to U.S.C.

§ 1367(c)(3). An Order consistent with this decision accompanies this Memorandum

Opinion.




                                                United States




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