                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA

                               )
JAMES D. MOSES,                )
                               )
     Plaintiff,                )
                               )
            v.                 )   Civ. Action No. 06-1712 (EGS)
                               )
GENE L. DODARO,                )
Acting Comptroller General,    )
                               )
     Defendant.                )
                               )


                         MEMORANDUM OPINION

     Plaintiff James Moses filed this action on October 4, 2006

against the Comptroller General of the United States Government

Accountability Office (“GAO” or the “agency”) alleging, among

other things, that the agency discriminated on the basis of age

in violation of the Age Discrimination in Employment Act of 1967

(“ADEA”).   Plaintiff seeks to represent a class of approximately

300 GAO auditors.

     Defendant’s prior motion to dismiss was denied in part and

granted in part by this Court in a December 18, 2009 Memorandum

Opinion in which the Court concluded 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 two allegations form the only

remaining viable portion of plaintiff’s action.    They are (1) an

                                   1

 
allegation that plaintiff and others were discriminatorily

denied increases in cost of living allowances ordinarily

provided to GAO employees, and (2) an allegation that the GAO

discriminatorily split the “Band II” employee pay classification

into two separate categories.

     After Moses was granted leave to file an amended complaint,

defendant filed a renewed motion to dismiss and/or for summary

judgment.   Upon consideration of defendant’s motion, the

opposition and reply thereto, the applicable law, the entire

record, and for the reasons stated below, the defendant’s motion

is hereby GRANTED in part and DENIED in part.   Furthermore,

plaintiff’s request for discovery is DENIED, and plaintiff’s

motion for a continuance to seek discovery is DENIED.

     I.     Background

     The relevant factual background is as follows: 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, plaintiff was employed as a “Band II” analyst.

     In late 2005, the GAO restructured the Band II Analyst and

Specialist positions within the agency.   Specifically, these

Band II employees were split into two separate categories: Band

                                 2

 
IIA and Band IIB.    Statement of Facts in Support of Defendant’s

Motion to Dismiss and/or for Summary Judgment (“Def.’s Statement

of Facts”) ¶¶ 6-7.   As the agency explains, “[t]he employees who

were placed in Band IIB would have greater leadership roles and

responsibilities than the employees placed into Band IIA.

Employees placed into Band IIB also had the potential for

greater compensation than employees placed into Band IIA.”

Def.’s Mem. at 2.    Plaintiff applied for placement into Band

IIB, but his application was denied.    Def.’s Statement of Facts

¶ 6.   Effective January 2006, plaintiff was placed into Band

IIA.

       The parties disagree on why the GAO restructured its Band

II employees.    Plaintiff asserts that “the real criteria for

selection [for Band IIB] was based upon age.”   Pl.’s Resp. to

Mot. to Dismiss and Cross-Mot. for Recons. of Denial of Disc.

(“Pl.’s Resp.”) at 16; see also Am. Compl. ¶ 26 (“[T]he

manipulation of the ‘band system’ has been used by management to

purportedly justify announced de-facto demotions of persons over

50.”).   In addition, plaintiff claims that “[e]valuations were

biased against older employees, and the resulting separation was

to place virtually all older employees into a lower designation

‘[B]and IIA.’”   Am. Compl. ¶ 71.

       Defendant, on the other hand, asserts that the agency

                                    3

 
“undertook this restructuring in an effort to modernize its

compensation system by making it more market-based and

performance oriented.”                                         Def.’s Mem. at 1-2.   Defendant further

asserts that “[t]o be eligible for placement into Band IIB . . .

employees had to meet certain minimum requirements regarding

their time in the Band and their recent performance appraisals.”

Def.’s Statement of Facts ¶¶ 8.                                        Defendant identifies three

“assessment factors” that the GAO used to determine whether an

employee would be placed in Band IIA or Band IIB.                                         Def.’s

Statement of Facts ¶¶ 9-12.1                                        In support of this assertion, the

defendant has submitted the affidavits of the two individuals

who were responsible for making the ultimate decision about

whether an employee would be placed into Band IIA or Band IIB,

namely Gene Dodaro, GOA’s Chief Operating Officer at the time,

and Sallyanne Harper, GAO’s Administrative Officer/Chief

Financial Officer.                                        Def.’s Statement of Facts ¶¶ 14-19.

              The salary maximum for Band IIA was lower than the salary

maximum had been for Band II before the restructuring.                                          In other

words, for some employees who were placed in the Band IIA

category, including plaintiff, their salary was higher than the
                                                            
1
       The agency used a process to evaluate whether each employee
belonged in Band IIA or Band IIB, beginning with an application
by the employee, followed by a review and recommendation made by
team directors, and ultimately a decision made by Gene Dodaro
and Sallyanne Harper. Def.’s Statement of Facts ¶¶ 14-19.  

                                                                       4

 
applicable maximum.                                            The GAO did not reduce the salaries of

these employees whose pay exceeded the maximum rate for Band

IIA.             However, the GAO denied these employees, again including

plaintiff, the 2006 cost of living increase (“COLA”), amounting

to a 2.6 percent increase in pay, that was provided to the

majority of GAO employees.                                           Def.’s Statement of Facts ¶¶ 38-39.2

              Some of the harms complained of by plaintiff with respect

to his salary and Band placement have been rectified in

subsequent years.                                       First, in March 2007, plaintiff was promoted

to the Band IIB category instead of Band IIA.                                              Second, Congress

enacted the Government Accountability Act of 2008 (“GAO Act of

2008” or “the Act”) in September 2008.                                             Pub. L. No. 110-323, 122

Stat. 3539 (Sept. 22, 2008).                                           In the Act, Congress directed the

GAO to raise the salaries of employees who had been denied their

COLA in 2006 or 2007 to the level of pay that they would have

been receiving had they been granted the COLAs.                                              See Pub. L.

110-323, § 3(c), 122 Stat. 3541.                                              In addition, the Act directed

the GAO to provide employees who did not receive their 2006 or

2007 COLAs a lump sum payment equal to the sum of money (plus 4

percent) that they would have received had they been granted the

COLAs when they went into effect.                                              See id. § 3(d).   In

                                                            
2
  The 2007 COLA was similarly denied, but plaintiff has not
alleged a claim based upon the 2007 COLA.
 

                                                                          5

 
accordance with the provisions of the GAO Act of 2008,

plaintiff’s salary was increased by $3,323, and he also received

a lump sum payment of $9,751.87.

     II.    Standard of Review

     The subject matter jurisdiction of the federal district

courts is limited and is set forth generally at 28 U.S.C.

§§ 1331 and 1332. Under those statutes, federal jurisdiction is

available only when a “federal question” is presented or the

parties are of diverse citizenship and the amount in controversy

exceeds $75,000. A party seeking relief in the district court

must plead facts that bring the suit within the court's

jurisdiction. See Fed. R. Civ. P. 8(a).

     Summary judgment is appropriate “if the movant shows that

there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).    Though the Court must draw all justifiable inferences

in favor of the non-moving party in deciding whether there is a

disputed issue of material fact, “[t]he mere existence of a

scintilla of evidence in support of the [non-movant]’s position

will be insufficient; there must be evidence on which the jury

could reasonably find for the [non-movant].” Anderson, 477 U.S.

242, 252.   “If the evidence is merely colorable, or is not

                                   6

 
significantly probative, summary judgment may be granted.” Id.

at 249-50 (internal citations omitted).

        III. Analysis

        Plaintiff’s remaining claims under the ADEA, based upon the

band restructuring and the denial of the COLAs, are both

challenged in defendant’s motion.      First, defendant argues that

the Court does not have jurisdiction over the COLA claim.

Second, defendant argues that the plaintiff’s COLA claim is

moot.    In addition to these two threshold arguments, defendant

seeks summary judgment on both of plaintiff’s remaining claims.

        After careful review of the parties’ arguments and their

submissions, and as is explained further below, the Court

concludes that it does have jurisdiction over the COLA claim,

and plaintiff’s COLA claim is not moot.     With respect to

defendant’s motion for summary judgment, the Court concludes

that defendant is entitled to summary judgment insofar as

plaintiff asserts his claims of discrimination under a theory of

disparate treatment.     However, although plaintiff’s disparate

treatment claim is hereby dismissed, his claim of discrimination

based upon a theory of disparate impact survives.

             A. Defendant’s Threshold Challenges to the COLA Claim

                 1. Jurisdiction

        Because plaintiff filed his action before the GAO Act of

                                   7

 
2008 took effect, the Court must determine whether the Act is

retroactive.   In particular, § 3(g) of the Act provides that:

     This section constitutes the exclusive remedy that any
     individuals to whom this section applies . . . have
     for any claim that they are owed any monies denied to
     them in the form of a pay increase for 2006 or 2007
     under section 732(c)(3) of title 31, United States
     Code, or any other law. Notwithstanding any other
     provision of law, no court or administrative body,
     including the Government Accountability Office
     Personnel Appeals Board, shall have jurisdiction to
     entertain any civil action or other civil proceeding
     based on the claim of such individuals that they were
     due money in the form of a pay increase for 2006 or
     2007 pursuant to such section 732(c)(3) or any other
     law.

Pub. L. No. 110-323, § 3(g), 122 Stat. 3452 (emphasis

added).   If the GAO Act of 2008 retroactively applies to

this case, the Court would lack jurisdiction in light of

the express language of § 3(g).

     As this Circuit has explained, “in order to determine

whether a statute applies to a case that was filed prior to

passage of the statute, courts must determine whether the

statute is ‘procedural’ in nature, or whether it affects

‘substantive entitlement to relief.’”   LaFontant v. INS,

135 F.3d 158, 163 (D.C. Cir. 1998) (citing Lindh v. Murphy,

521 U.S. 320, 327 (1997).   A jurisdictional statute that

“takes away no substantive right but simply changes the

tribunal that is to hear the case” is permissibly

retroactive.   LaFontant, 135 F.3d at 161 (quoting Landgraf
                                  8

 
v. USI Film Prods., 511 U.S. 244, 274 (1994)).    However, a

statute that is purportedly jurisdictional in nature but

“affects substantive entitlement to relief” will be subject

to the presumption against retroactivity.     Id. at 163; see

also Hughes Aircraft Co. v. U.S., 520 U.S. 939, 951 (1997)

(“[E]ven though [the statute is] phrased in

‘jurisdictional’ terms, [it] is as much subject to [the]

presumption against retroactivity as any other.”).

     In LaFontant, the Circuit recognized that an agency

proceeding was still available to the petitioner, holding that:

     [The statute in question] falls squarely onto the
     procedure side of the substance/procedure dichotomy
     established by the Supreme Court . . . for evaluating
     whether a statute has impermissible retroactive
     effects. Although [the statute] does give
     [petitioner’s] agency proceedings greater finality
     than [petitioner] expected at the time they were held,
     [the statute] is not impermissibly retroactive because
     it does not attach new substantive legal consequences
     to those proceedings. It does not create new legal
     liabilities, deprive a party of a legal defense he
     would otherwise have had, or otherwise affect the
     substantive rights of the parties before this court.
     Rather, it simply speaks to the power of this court to
     hear an appeal from an agency decision. Thus, even if
     we accepted petitioner LaFontant’s claim that he would
     have presented different arguments and evidence during
     his agency proceedings . . . this would not be
     sufficient to establish that [the statute] has an
     impermissible retroactive effect.

LaFontant, 135 F.3d at 165.

     Unlike LaFontant, in which the petitioner was still

permitted to seek relief in an agency proceeding, the statute in
                                9

 
the instant case bars plaintiff from relief in any tribunal.

The GAO Act of 2008 expressly states that “no court or

administrative body, including the Government Accountability

Office Personnel Appeals Board, shall have jurisdiction[.]”

Pub. L. No. 110-323, § 3(g), 122 Stat. 3542.    As such, it is not

merely a jurisdictional statute, but rather it also affects

substantive entitlement to relief.   Accordingly, in the absence

of an express provision to the contrary, the Court applies the

general presumption against retroactivity.     See LaFontant, 135

F.3d at 162-163.   Defendant’s motion to dismiss the COLA claim

for lack of jurisdiction is therefore DENIED.

              2. Mootness

     Plaintiff does not dispute that the GAO Act of 2008

provided him with a lump sum payment equal to the COLA in 2006

(i.e. a 2.6 percent increase on his 2006 salary).    However,

plaintiff argues that he is still entitled to an appropriate

amount of interest.   Defendant makes two arguments in response

to plaintiff’s assertion.   First, defendant argues that

plaintiff was already provided, pursuant to the GAO Act of 2008,

with a 4 percent increase on his COLA amount when he was given

the lump sum payment.   According to defendant, this was interest

on the COLA amount.   Furthermore, defendant argues that the GAO

Act of 2008 clearly provides that the salary increase and lump

                                10

 
sum already provided to plaintiff constituted the full amount to

which plaintiff was entitled.

     The purpose of the mootness doctrine is to “ensure[] that

federal courts only decide ongoing cases and controversies.”

Cody v. Cox, 509 F.3d 606, 608 (D.C. Cir. 2007) (citing Clarke

v. United States, 915 F.2d 699, 700-701 (D.C. Cir. 1990).     “A

case is moot when ‘the challenged conduct ceases such that there

is no reasonable expectation that the wrong will be repeated’ in

circumstances where ‘it becomes impossible for the court to

grant any effectual relief whatever to the prevailing party.’”

United States v. Philip Morris USA, Inc., 566 F.3d 1095, 1135

(D.C. Cir. 2009) (quoting City of Erie v. Pap's A.M., 529 U.S.

277, 287 (2000); see also Lemon v. Geren, 514 F.3d 1312, 1315

(D.C. Cir. 2008) (“A case becomes moot when ‘intervening events

make it impossible to grant the prevailing party effective

relief.’”)   (quoting Burlington N. R.R. Co. v. Surface Transp.

Bd., 75 F.3d 685, 688 (D.C. Cir. 1996)).    “The burden of

demonstrating mootness ‘is a heavy one.’”    Daingerfield Island

Protective Soc’y v. Lujan, 920 F.2d 32, 36 (D.C. Cir. 1990)

(quoting Cnty. of Los Angeles v. Davis, 440 U.S. 625, 631

(1979)).   “[E]ven the availability of a partial remedy is

sufficient to prevent a case from being moot.”    Byrd v. EPA, 174

F.3d 239, 244 (D.C. Cir. 1999) (quoting Calderon v. Moore, 518

                                11

 
U.S. 149, 150 (1996)); see also FTC v. Whole Foods Market, Inc.,

548 F.3d 1028, 1034 (D.C. Cir. 2008).

     There are two problems with defendant’s argument that

plaintiff’s COLA claim is moot.    First, although plaintiff

concedes that he has received a lump sum payment, he does not

concede that he has received the appropriate amount of interest

on that amount.   The GAO Act of 2008 does not state that the 4

percent increase is a payment of interest, nor does it explain

how that percentage was selected.      If plaintiff prevails on the

underlying COLA claim, he should be given an opportunity to

assert, and provide evidence, that (a) he is entitled to

interest on the COLA, and (b) that the actual interest due on

his COLA was greater than the 4 percent already provided to him.

Second, defendant’s reliance on the provisions of the GAO Act of

2008 are also unavailing because the statute is, as discussed

above, not retroactive.

     Accordingly, in light of the Court’s conclusion that it has

jurisdiction over plaintiff’s COLA claim and that the claim is

not moot, defendant’s motion to dismiss this claim is hereby

DENIED.

          B. Defendant’s Motion for Summary Judgment

     The Court now turns to defendant’s argument that he is

entitled to summary judgment on both the COLA claim and the Band

                                  12

 
restructuring claim.   Section 633a of the ADEA requires that

“[a]ll personnel actions affecting employees or applicants for

employment who are at least 40 years of age . . . in executive

agencies . . . shall be made free from any discrimination based

on age.” 29 U.S.C. § 633a(a).

     As this Circuit has recently explained, “[p]laintiffs

alleging age discrimination in violation of the ADEA may seek

recovery under both disparate treatment and disparate impact

theories of recovery.”   Aliotta v. Bair, 614 F.3d 556, 561 (D.C.

Cir. 2010) (citing Smith v. City of Jackson, 544 U.S. 228, 236-

240 (2005).   With a disparate treatment claim, “plaintiffs seek

to prove an employer intentionally treated some people less

favorably than others because of their age.”   Id. (emphasis

added); see also Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 141 (2000) (“The plaintiff’s age must have actually

played a role in [the employer’s decisionmaking] process and had

a determinative influence on the outcome.”) (internal quotation

marks omitted).   On the other hand, “in a disparate impact

claim, plaintiffs challenge employment practices that are

‘facially neutral in their treatment of different groups but

that in fact fall more harshly on one group than another and

cannot be justified by business necessity.’”   Aliotta, 614 F.3d

at 561-562 (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604,

                                13

 
609 (1993).

     Though inartfully pled, the Court concludes that plaintiff

in his amended complaint appears to be attempting to bring his

claims of discrimination under both a theory of disparate

treatment as well as a theory of disparate impact.   Defendant’s

motion for summary judgment, however, only challenges the

portion of plaintiff’s claim that relies upon a disparate

treatment theory of recovery.

     Accordingly, as is discussed below, defendant’s motion for

summary judgment is GRANTED insofar as it relates to plaintiff’s

disparate treatment claim of discrimination.   However, the Court

concludes that plaintiff’s claim of discrimination based upon a

disparate impact theory of recovery, to the extent he intended

to assert one, remains intact.

               1. Disparate Treatment

     Once plaintiff has made out a prima facie case of age

discrimination, the defendant “bears the burden of producing a

non-discriminatory explanation for the challenged personnel

action.”   Ford v. Mabus, 629 F.3d 198, 201 (D.C. Cir. 2010)

(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03

(1973)).   After defendant has produced a legitimate, non-

discriminatory reason for the action, plaintiff bears the burden

of showing either that “the employer’s reason is pretextual or

                                 14

 
. . . that it was more likely than not that the employer was

motivated by discrimination.” Id. (citing Forman v. Small, 271

F.3d 285, 292 (D.C. Cir. 2001)).

      At the summary judgment stage, “once [an] employer asserts

a legitimate, non-discriminatory reason [for its challenged

decision], the question whether the employee actually made out a

prima facie case is no longer relevant.” Aliotta, 614 F.3d at

563 (quoting Brady v. Office of Sergeant at Arms, 520 F.3d 490,

494 (D.C. Cir. 2008)).   In other words, once an employer asserts

a legitimate, nondiscriminatory explanation for the challenged

action, “the district court need not - and should not – decide

whether the plaintiff actually made out a prima facie case.”

Id.   In this circumstance, the Court must assess “whether [the

plaintiff] produced evidence sufficient for a reasonable jury to

find that the employer’s stated reason was not the actual reason

and that the employer intentionally discriminated against [the

plaintiff].” Id. at 564.

      In the instant case, with respect to both plaintiff’s COLA

claim and the Band restructuring claim, defendant asserts that

there were legitimate, non-discriminatory reasons for placing

plaintiff in Band IIA and for denying his COLAs.   Defendant

accordingly argues that the Court should grant him summary

judgment because no reasonable trier of fact could conclude that

                                15

 
Plaintiff was placed in Band IIA (and not Band IIB) or denied

the COLA because of his age.   See Def.’s Mem. at 18-21.

     As evidence of the legitimate, non-discriminatory reason

for placing plaintiff into Band IIA, defendant has submitted the

declarations of Mr. Dodaro and Ms. Harper, the individuals who

ultimately decided whether to place employees into Band IIA or

Band IIB.   In their declarations, both Mr. Dodaro and Ms. Harper

state that “[e]mployees who applied for placement into Band IIB

were evaluated against three assessment factors: ‘Roles and

Responsibilities,’ ‘Past Performance,’ and ‘Performance

Potential.’”   Decl. of Gene L. Dodaro (“Dodaro Decl.”) ¶ 4;

Decl. of Sallyanne Harper (“Harper Decl.”) ¶ 2.

     The Past Performance factor is of particular relevance

here, because defendant asserts that plaintiff failed to meet

its criteria and was therefore denied placement in Band IIB.

For employees with more than three years’ experience, such as

plaintiff, the Past Performance factor consisted of two

criteria.   Employees were selected for Band IIB if they had

either an “[u]pward trend in appraisal percentiles during fiscal

years 2003-2005, and percentiles that were at least 50 for both

fiscal years 2004 and 2005,” or they had a “[d]ownward or uneven

trend in appraisal percentiles during fiscal years 2003-2005,

and percentiles that are at least 50 in any two years, and a

                                16

 
fiscal year 2005 percentile that is at least 45, and a fiscal

year 2004-2005 [Standardized Rating Score] average that is at

least 4.95 or a fiscal year 2004-2005 percentile average that is

at least 50.”                               Dodaro Decl. ¶ 6; Harper Decl. ¶ 4.            Both Mr.

Dodaro and Ms. Harper further state that they did not select any

applicant for Band IIB placement who did not satisfy this Past

Performance criteria.                                          Dodaro Decl. ¶ 8; Harper Decl. ¶ 6.   Mr.

Dodaro and Ms. Harper assert that “[b]ecause Mr. Moses did not

meet the Past Performance assessment factor, [they] decided that

he would not be placed into Band IIB during the Band II

restructuring.”                                   Dodaro Decl. ¶ 8; Harper Decl. ¶ 6.3

              Similarly, defendant argues that it is entitled to summary

judgment on the COLA claim because the “GAO made a[n] age-

neutral and generally applicable decision not to award a COLA in

2006 to any employee in Band IIA, including Plaintiff, whose

salary was higher than the maximum rate for that Band.”                                         Def.’s
                                                            
3
  In particular, plaintiff “was at the 42nd percentile in fiscal
year 2003, at the 33rd percentile in fiscal year 2004, and at
the 53rd percentile in fiscal year 2005. Thus he did not meet
the first criterion because he did not demonstrate an upward
trend in his appraisal percentiles, nor were his percentiles for
both 2004 and 2005 at least 50. While he met some of the
factors in the second criterion, his appraisal percentiles were
not at least 50 in any two years from 2003-2005, his
[Standardized Rating Score] average for 2004 and 2005 was only
4.78, and his 2004-2005 percentile average was only 43. He
therefore did not meet the second criterion either.” Dodaro
Decl. ¶ 7; Harper Decl. ¶ 5.

                                                                       17

 
Mem. at 18.                           In support of their assertion, defendant has

submitted the affidavit of Shannon Anderson, employed by the GAO

as a Human Capital Specialist in the Performance and

Compensation Management Center of the Human Capital Office.

Decl. of Shannon M. Anderson (“Anderson Decl.”) ¶ 1.4                                 Ms.

Anderson states in her declaration that “[plaintiff’s] salary

was above the maximum rate for a Band IIA employee in January

2006.               Consequently neither [plaintiff] nor any other employee

above the maximum rate received the 2.6 percent cost of living

adjustment (COLA) to their salaries for 2006.”                                 Anderson Decl.

¶ 3.

              The Court finds that defendant has thus produced

legitimate, non-discriminatory reasons for placing plaintiff

into Band IIA and denying the COLAs.                                 Accordingly, plaintiff –

who ultimately bears the burden of proving that “discriminatory

animus was the determining or but-for cause of the personnel

action” – may satisfy his burden of proof “either indirectly by

showing the employer’s reason is pretextual or directly by

showing that it was more likely than not that the employer was

motivated by discrimination.”                                  Ford, 629 F.3d at 201 (internal

citations and quotation marks omitted).                                 Plaintiff has failed to
                                                            
4
   Ms. Anderson is “responsible for verifying the calculations of
pay increases for GAO employees pursuant to GAO’s pay orders and
policies.” Anderson Decl. ¶ 1.

                                                               18

 
do so.   In response to defendant’s motion for summary judgment

on his discrimination claims, plaintiff has supplied the Court

with nothing more than conclusory allegations of a

discriminatory animus, the majority of which have nothing to do

with plaintiff’s surviving claims relating to the Band

restructuring and the COLA denials.

       Plaintiff does not dispute that he did not meet the

criteria of the Past Performance factor used by Mr. Dodaro and

Ms. Harper.   Nor does he dispute that his salary was higher than

the maximum for Band IIA at the time he was placed into Band

IIA.   With respect to the non-discriminatory reasons asserted by

defendant for the Band restructuring and the denial of the

COLAs, plaintiff merely makes a few vague, unsupported

assertions that “whether [he] was placed into ‘Band IIA’ because

of his age or for meritorious reasons is a disputed fact.”

Pl.’s Resp. at 15; see also Pl.’s Statement of Material Disputed

Facts (listing “[w]hether the purported bonafide [sic] selection

criteria at GAO are merely a subterfuge and camouflage for the

overriding policy of age discrimination” as a material disputed

fact without any elaboration).   As this Circuit has repeatedly

held, “a mere unsubstantiated allegation . . . creates no

genuine issue of fact and will not withstand summary judgment.”

Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993); see also

                                 19

 
Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (“Although,

as a rule, statements made by the party opposing a motion for

summary judgment must be accepted as true for the purpose of

ruling on that motion, some statements are so conclusory as to

come within an exception to that rule.”).

     Plaintiff, who has not had the opportunity to seek

discovery, also argues that summary judgment is inappropriate

until discovery has been granted.    Although plaintiff is correct

that summary judgment “ordinarily ‘is proper only after the

plaintiff has been given adequate discovery,’”    Americable

Int’l, Inc. v. Dep’t of Navy, 129 F.3d 1271, 1274 (D.C. Cir.

1997) (quoting First Chicago Int’l v. United Exch. Co., 836 F.2d

1375, 1380 (D.C. Cir. 1988)), a plaintiff who “offer[s] no

specific reasons demonstrating the necessity and utility of

discovery to enable her to fend off summary judgment” is not

entitled to discovery.   Strang v. United States Arms Control &

Disarmament Agency, 864 F.2d 859, 861 (D.C. Cir. 1989); see also

Dunning v. Quander, 508 F.3d 8, 10 (D.C. Cir. 2007) (upholding a

grant of summary judgment for the defendant because plaintiff

“failed to provide any persuasive reason for needing

discovery”); Messina v. Krakower, 439 F.3d 755, 762 (D.C. Cir.

2006) (upholding a grant of summary judgment and holding that

“[a] party making a [Rule 56(d)] request must ‘state concretely’

                                20

 
why additional discovery is needed to oppose a motion for

summary judgment.”).

     Plaintiff has failed to demonstrate the necessity of

discovery to oppose defendant’s motion for summary judgment.    He

merely asserts that disclosure of various information “would

furnish evidence determinative of the relevant facts at issue in

this action,” Pl’s. Resp. at 3, and that he has been denied

access to data that would demonstrate “rampant age

discrimination at the GAO.”   Pl.’s Resp. at 17.   These and other

similar statements by plaintiff utterly fail to “state

concretely” why he is entitled to discovery in order to oppose

defendant’s motion for summary judgment.   Furthermore, plaintiff

has not provided the Court with any basis for doubting the

veracity of the three declarations provided by the agency.    As

this Circuit held in Strang, “[w]ithout some reason to question

the veracity of the affiants, . . . [plaintiff’s] plea is too

vague to require the district court to defer or deny dispositive

action.”   Strang, 864 F.2d at 861; see also Dunning 508 F.3d at

10 (“Because [plaintiff] offers no reason to question the

veracity of this affiant, no further discovery is required.”)

(internal quotation marks omitted).

     Accordingly, defendant’s motion for summary judgment is

GRANTED insofar as it challenges plaintiff’s claims of age

                                21

 
discrimination on a theory of disparate treatment, and

plaintiff’s motion for discovery is DENIED.

                2. Disparate Impact

       Although the Court concludes that defendant is entitled to

summary judgment with respect to plaintiff’s disparate treatment

claims, the Court concludes that the Amended Complaint also

appears to allege a claim based upon a disparate impact theory

of recovery.   “To establish a prima facie disparate impact claim

under the ADEA, a plaintiff is not required to offer evidence

the employer’s action was the result of discriminatory intent,

but need only offer statistical evidence of a kind and degree

sufficient to show the employment decision disproportionately

impacts older employees . . . . [B]y challenging the effect of

specific employment practices, plaintiffs alleging disparate

impact, like those in a disparate treatment pattern or practice

case, are alleging the employer’s practices have had a ‘systemic

adverse effect’ on members of the class.”     Aliotta, 614 F.3d at

565.

       In the instant case, plaintiff alleges that the evaluations

used in the Band II restructuring “were biased against older

employees, and the resulting separation was to place virtually

all older employees into a lower designation ‘[B]and IIA.’”    Am.

Compl. ¶ 71.   Regarding the denial of the COLAs, plaintiff

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similarly alleges that it “had the effect of unequal protection

of the laws as to the predominately older . . . Band II’s

selected for this special discriminatory treatment[.]”   Am.

Compl. ¶¶ 72.   Plaintiff’s argument in his opposition to

defendant’s motion for summary judgment further persuades the

Court that plaintiff intends to allege a disparate impact claim.

See Pl.’s Resp. at 2 (“[D]efendant would have the Court believe

that the fact that all of the rejected employees, 320 of them

who were all over 50, and substantially older than the selectees

[for Band IIB] is merely a coincidence.   This position is

false[.]”); Pl.’s Resp. at 9 (“Following the announcement in

fall of 2005 of the ‘Band II Split’ . . . a total of 320

employees, all of whom were performing satisfactorily, were

classified in the lower, non-promotable Band IIA. . . . On

information and belief, all of these employees were over

50[.]”).

      Defendant’s motion to dismiss, or in the alternative for

summary judgment, does not challenge a claim for discrimination

on the basis of disparate impact.    See Def.’s Mem. at 14-15.   In

particular, it does not challenge plaintiff’s allegations that

the Band II restructuring and the denial of the COLAs had a

disparate impact on people over the age of 50, as the plaintiff

repeatedly alleges.   Defendant’s motion for summary judgment is

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based upon the assertion that the GAO had legitimate, non-

discriminatory reasons for placing plaintiff in Band IIA and for

denying his COLA.    However, “a plaintiff is not required to

offer evidence the employer’s action was the result of

discriminatory intent” to prove a disparate impact claim of

discrimination.     Aliotta, 614 F.3d at 565.   Defendant’s motion

for summary judgment therefore only addresses recovery on a

theory of disparate treatment.    Accordingly, the Court concludes

that plaintiff’s claim of discrimination based on a disparate

impact theory of recovery remains intact.

     IV.   CONCLUSION

     For the foregoing reasons, defendant’s motion to dismiss

and/or for summary judgment is hereby GRANTED in part and DENIED

in part.   Furthermore, plaintiff’s request for discovery is

DENIED, and plaintiff’s motion for a continuance to seek

discovery is DENIED.     An appropriate Order accompanies this

Memorandum Opinion.

SIGNED:    Emmet G. Sullivan
           United States District Court Judge
           March 31, 2011




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