Case 1:05-cv-02325-RMU Document 45 Filed 02/089/2006 Page 1 of 27

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BARBARA ALIOTTA, et al and

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Others similarly situated,

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Plaintiffs,

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v.

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MARTIN J. GRUENBERG, ACTING )

CHAIRMAN, FEDERAL DEPOSIT

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INSURANCE CORPORATION,

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Defendant.

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)

Case Number 1: 05CV02325 AMENDED COMPLAINT
CLASS ACTION

1. Plaintiff BARBARA ALIOTTA and forty-eight other plaintiffs file this action

against MARTIN J. GRUENBERG, Acting Chairman of the Federal Deposit Insurance

Corporation (“FDIC” or "Defendant Agency"), to enforce their rights to equal employment

opportunity, specifically to be free from age discriminatory employment practices by the

Defendant Agency under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.

(the “ADEA”).

JURISDICTION

2. Jurisdiction of this Court is based upon Section 15 of the ADEA, 29 U.S.C. §

633a(c), 28 U.S.C. § 1331 (federal question), and 28 U.S.C. § 1343 (civil rights).

VENUE

3. Venue lies in the District of Columbia pursuant to 28 U.S.C. § 1391 and 29

U.S.C. § 633a(c). The headquarters of the Defendant Agency, including the office of the named

Defendant Acting Chairman Gruenberg and the office of the Director of the Division of

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Resolutions and Receiverships, are located in this District. In this District, the Defendant Agency established and applied the policies and practices that harmed the plaintiffs and other employees age 50 and older who are similarly situated to plaintiffs. The Defendant Agency made and maintained records concerning the plaintiffs in this District. Some of the plaintiffs served as employees of the Defendant Agency in this District.
NOTICE OF INTENT TO SUE 4. On October 31, 2005, nineteen Plaintiffs filed their Notice of Intent to File Suit against the Defendant Agency with the United States Equal Employment Opportunity Commission (the “Commission”). Similar notices advising the Commission and the Defendant Agency of other employees were filed and served on November 10, 2005, and December 5, 15 and 22, 2005 and on January 3 and 20, 2006. Plaintiffs served a copy of each Notice of Intent to File Suit on the Defendant Agency on the same day that the Notice was served with the Commission. The Notices advised the Commission and the Defendant Agency of the Plaintiffs’ intent to include a class action as part of their claims.
PARTIES 5. Plaintiffs were born on dates ranging from January 10, 1933 through September 30, 1955. They were employees of the Defendant Agency in its Division of Resolutions and Receiverships (“DRR”) in Washington D.C. or in or near Dallas, Texas during and before 2005. In the fall of 2004, the Defendant Agency offered to employees of DRR who were not supervisors, and to some employees in its other Divisions or Offices, incentives to leave its employment, resign or retire. Effective from November 30, 2004 through May 14, 2005, the Defendant Agency discharged approximately 102 employees aged 50 or older, including at least
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29 Plaintiffs aged 50 or older who accepted the incentives to retire in the spring of 2005 in order to avoid the substantial risk that they would be terminated without any retirement benefits until they reached the age of 62. In addition, pursuant to its 2005 RIF, the Agency discharged approximately seventy-one other employees, including approximately twenty-four Plaintiffs, from its employment effective September 3, 2005.
6. Plaintiff Barbara Aliotta was born on June 19, 1954. She was employed by the Defendant Agency on June 23, 1986. She was a Resolutions and Receiverships (“R&R”) Specialist, Grade 12, in the Dallas, Texas office of the Defendant Agency. She had more than 19 years of service when she was discharged effective September 3, 2005.
7. Plaintiff Robert Anderson was born on December 25, 1952. He was employed by the Defendant Agency for six years and nine months and was a Grade 6 employee when the Defendant Agency discharged him from employment effective September 3, 2005.
8. Plaintiff Jeanie Avery was born on February 24, 1952. She was employed by the Defendant Agency on January 2, 1987. She was a R&R Technician, Grade 7. She had more than 18 years of service when the Defendant Agency discharged her from its employment effective September 3, 2005.
9. Plaintiff Douglas M. Barrow was born on February 22, 1938. He became employed by FDIC in February 1990. He was a R&R Specialist, Grade 11. He accepted the offer of incentives to retire. The Defendant Agency discharged him from its employment effective on May 14, 2005.
10. Plaintiff Ann A. Bonner was born on March 25, 1946. She started her employment with FDIC in April 1981. She served for 24 years and 5 months and was a Grade 12
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when the Defendant Agency discharged her from its employment effective on September 3, 2005. Notice of her claims was served on the Equal Employment Opportunity Commission on or about January 20, 2006. Her claims will therefore be timely on or about February 21, 2006.
11. Plaintiff LaMargo Brown was born on October 15, 1951. She was employed by the Defendant Agency on April 15, 1985. She was employed for 20 years by FDIC and was a Grade 6. She accepted the incentives to retire. The Defendant Agency discharged her from its employment effective May 14, 2005.
12. Plaintiff Yvonne Cain was born on May 26, 1950. Defendant Agency hired her in September 1983 at its Headquarters office in the District of Columbia. She was detailed to the Dallas office in 2003, and was reassigned permanently to the Dallas office thereafter. She was a R&R Specialist, Grade 13. She accepted the incentives for an early retirement. The Defendant Agency discharged her from its employment with the early retirement effective May 14, 2005.
13. Plaintiff James R. Cantrell was born on May 9, 1941. He began his career with FDIC on April 22, 1991. He was a R&R Technician, Grade 7. He took the incentives to retire. The Defendant Agency discharged him from its employment effective May 14, 2005.
14. Plaintiff Priscilla Catapat was born on August 19, 1944. She was employed by the Defendant Agency on April 18, 1983. Plaintiff Catapat has a degree in accounting and 14 years of accounting experience with the FDIC. In 2005 she was employed as a R&R Specialist, Grade 12. She had years of experience in the Claims Department of FDIC and the Customer Service Division of DRR, but the Agency denied her bids for positions in those Departments. She was placed on the Re-Employment Priority List of the FDIC, but instead of filling positions
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from that list, the Defendant Agency filled the vacancies with younger employees who had less experience and expertise than she had. Plaintiff Catapat was a R&R Specialist, Grade 12, when the Defendant Agency discharged her from employment effective September 3, 2005. She did not accept an incentive to retire. However, she applied for and accepted a retirement after her discharge.
15. Plaintiff Evelyn Claude was born on September 11, 1955. She was employed by the Defendant Agency on February 10, 1992. She was a R&R Technician, Grade 7 when the Agency discharged her from employment effective September 3, 2005.
16. Plaintiff Sylvia Cline was born on January 10, 1933. She was employed by the Defendant Agency in DRR on October 15, 1979. She was a R&R Technician, Grade 8 with more than 25 years of service when the Agency discharged her from employment effective September 3, 2005.
17. Plaintiff James (“Jim”) B. Connell was born on June 27, 1949. He was employed by the Defendant Agency on August 28, 1989. He was a R&R Specialist, Grade 13. He accepted the incentive to retire with a reduced annuity and discharged by the Agency from its employment effective May 14, 2005. Notice of his claims was served on the EEOC on February 7, 2006. His claim will mature and become timely on or about March 9, 2006.
18. Plaintiff Lawrence G. Dillow was born on September 7, 1937. He began his career with FDIC in January 1987. He was a R&R Specialist, Grade 12. He accepted the incentives to retire early. The Defendant Agency discharged him from its employment effective May 14, 2005.
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19. Plaintiff Mary DuPree-Ellis was born on May 30, 1953. She was employed by the Defendant Agency in May 1985. She was a R&R Technician, Grade 7, with about 15 years of service with the FDIC and about 20 years of service with the federal government. The Defendant Agency offered her a discharge with or without a buyout and early retirement. She chose to accept the discharge with a buyout and an early retirement. The Agency discharged her from its employment effective May 14, 2005.
20. Plaintiff Wyman Elrod was born on August 25, 1952. He was employed by the Defendant Agency on October 10, 1986. He was a R&R Specialist, Grade 12 when the Defendant Agency discharged him from employment effective September 3, 2005.
21. Plaintiff Patricia J. Everett was born on June 12, 1949. She was employed by the Defendant Agency on April 28, 1986. She was a R&R Technician, Grade 7 when the Agency discharged her from her employment effective September 3, 2005.
22. Plaintiff Joan D. Fairfield was born on July 15, 1953. She was employed by the Defendant Agency on November 7, 1977 when she worked for the Federal Home Loan Bank Board, which was absorbed into FDIC in 1989. She was a R& R Specialist, Grade 14 in the Washington, D.C. office of the Defendant Agency. She had 27.5 years of experience with the Defendant Agency. She took the incentives to retire early. The Defendant Agency discharged her from its employment effective May 14, 2005.
23. Plaintiff C. Jenola Flowers was born on May 4, 1941. She was employed by the Defendant Agency on October 8, 1983. She was a Grade 13 Supervisory Secretary. She accepted incentives to retire. The Defendant Agency terminated her employment effective May 14, 2005. Notice of her claims was served on the EEOC on or about January 31, 2006. Her
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claims will therefore be timely on or about March 2, 2006. 24. Plaintiff Kathy Frantum was born on October 20, 1946. She was employed by
Defendant Agency on May 21, 1990. She was a Financial Management Analyst, Grade 12 when the Defendant Agency terminated her employment effective May 14, 2005. Notice of her claims was served on the EEOC on or about February 2, 2006. Her claims will therefore be timely on or about March 9, 2006.
25. Plaintiff Jamesena George was born on March 20, 1952. She was employed by Defendant Agency beginning on June 7, 1987. She was detailed to the Dallas field office of the Division of Resolutions and Receiverships for six months from August 8, 2002 until February 2003. She was then reassigned to that office on June 2, 2003. She was an Administrative Specialist, Grade 11. She accepted the incentives to retire early. The Defendant Agency discharged her from its employment on May 14, 2005.
26. Plaintiff Larry L. Glazener was born on July 17, 1948. He graduated from West Texas A & M University with a degree in Management and Finance in May 1971. While he was employed by a bank in Texas, he completed the course work offered by the American Institute of Banking in Houston and received a certificate of completion. He had a computed entry of duty date of October 17, 1985 and had a total of more than 19 years of service with the Defendant Agency. In the fall of 2004 he was a R&R Specialist, Grade 12. He accepted an incentive for a reduced retirement annuity, and the Defendant Agency separated him from its service effective May 14, 2005.
27. Plaintiff Darrel Gray was born on August 17, 1951. He was hired by the Defendant Agency on September 14, 1987. He was a R&R Specialist, Grade 12 when his
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employment was terminated on September 3, 2005. 28. Plaintiff Gregory Haag was born on November 23, 1949. He has worked for the
FDIC for 19.5 years. He is currently employed by the Defendant Agency as a CG13 R&R Specialist. He accepted a lower-graded position, moving to a CG12 in Lexington, Kentucky, in order to avoid the RIF in the Dallas office.
29. Plaintiff Kathy Haag was born on September 24, 1949. She was employed with FDIC for 14.5 years. She was a R&R Technician, Grade 7. She accepted the incentives to retire early. The Defendant Agency discharged her from its employment effective May 14, 2005.
30. Plaintiff Denis Harootunian was born on December 30, 1950. He received a Bachelor’s Degree in Business Administration from Boston University in 1972 and a Master’s Degree in Finance and Marketing from Suffolk University in 1973. He was employed by the Securities and Exchange Commission in Washington, D.C. from July 1975 through mid-October 1988 as a Senior Financial Analyst within the Division of Corporation Finance. He was employed by the Defendant Agency at its Headquarters office in Washington, D.C. in October 1988. In 2005, he was a R&R Specialist, Grade 13 with more than 30 years of federal service. Plaintiff Harootunian was certified by the Human Resources Office as qualified for seven different positions within DRR. He bid for each of those positions. The Defendant Agency chose eight younger employees with less experience and expertise than Plaintiff Harootunian for those seven positions (two were chosen for one of the positions). The Defendant Agency discharged Plaintiff Harootunian from its employment effective September 3, 2005.
31. Plaintiff Peggy J. Henderson was born on February 9, 1939. She was an Administrative Assistant, Grade 6. She accepted the incentives to retire. The Defendant Agency
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discharged her from its employment effective May 14, 2005. 32. Plaintiff Pinkie L. Hoover was born on May 9, 1947. She started her employment
with FDIC in September 1987 as a CG7 R&R Technician. She accepted an incentive for early retirement. The Defendant Agency discharged her from employment effective May 14, 2005.
33. Plaintiff Mary S. Kebbeh was born on September 27, 1950. She was employed by the Defendant Agency on April 9, 1990. She was a R&R Technician, Grade 7 when the Defendant Agency discharged her from its employment effective September 3, 2005.
34. Plaintiff Dennis L. Keller was born on September 11, 1950. He was employed by the Defendant Agency on May 13, 1986. He was a R&R Specialist, Grade 12 when the Defendant Agency discharged him from employment effective September 3, 2005.
35. Plaintiff Gary Kelly was born on February 3, 1945. He was employed by the defendant for 23 years. He was a R&R Specialist, Grade 12. He accepted an incentive to retire. The Defendant Agency discharged him from its employment effective April 30, 2005.
36. Plaintiff Vincent Leal was born on October 4, 1954. He was employed by FDIC for 21 years. He was a R&R Specialist, Grade 12. He accepted an incentive to accept a reduced annuity. The Defendant Agency discharged him from his employment on May 14, 2005.
37. Plaintiff Donald Lett was born on December 27, 1952. He was employed by the defendant for 25 years. He was a R&R Specialist, Grade 12. He accepted an incentive to accept a reduced annuity, and the Defendant Agency discharged him from its employment on May 14, 2005.
38. Plaintiff Pearl Lindsey was born on June 9, 1955. She was employed by the Defendant Agency on November 19, 1986. She was a Secretary, Grade 6. Pursuant to the 2005
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RIF, the Defendant Agency discharged her from its employment effective September 3, 2005. 39. Plaintiff Carole Mann was born on February 16, 1945. She began employment
with the Defendant Agency in August 1984. She was an Administrative Specialist, Grade 12 when she left Defendant Agency February 25, 2005 for a job offer in the private sector. Notice of her claims was served on the EEOC on or about February 2, 2006. Her claims will therefore be timely on or about March 9, 2006.
40. Plaintiff Richard Mann was born on April 6, 1946. He started work with Defendant Agency on November 27, 1977. He was a R&R Specialist, Grade 14. He accepted an incentive when Defendant Agency separated him from employment on April 30, 2005 with an early retirement buyout. Notice of his claims was served on the EEOC on or about February 2, 2006. His claims will therefore be timely on or about March 9, 2006.
41. Plaintiff James “Jim” McAnally was born on March 28, 1940. He started his employment with Defendant Agency on January 19, 1987. He was a R&R Specialist, Grade 14. He accepted an incentive for a reduced early retirement and Defendant Agency discharged him on May 14, 2005,
42. Plaintiff Edwin Montoya was born on August 23, 1954. He was employed by Defendant Agency for 29 years and 10 months as a R&R Specialist, Grade 12. He accepted an incentive to retire early. He was discharged by the Defendant Agency effective May 14, 2005. Notice of his claims was served on the EEOC on or about January 20, 2006. His claims will therefore be timely on or about February 21, 2006.
43. Plaintiff O. Faye Moritz was born on September 26, 1955. She was employed by the Defendant Agency starting on January 27, 1986. She was a R&R Specialist, Grade 12 when
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the Defendant Agency, pursuant to its 2005 RIF, discharged her from its employment effective September 3, 2005.
44. Plaintiff Bernice Parker was born on March 30, 1949. She was employed by the Defendant Agency on June 9, 1986. She was a R&R Technician, Grade 7. She accepted an incentive for a reduced early retirement. The Agency discharged her from its employment effective May 14, 2005.
45. Plaintiff Paula J. Patterson was born on July 25, 1950. She was employed by Defendant Agency on December 12, 1988. She was a R&R Technician, Grade 7 when the Defendant Agency offered her a discharge from employment with a buyout and early retirement. Defendant terminated her from its employment effective May 14, 2005.
46. Plaintiff Nancy Powers was born on February 24, 1948. She was employed by the Defendant Agency for 7.5 years as a GS-12 when she was discharged from her employment on September 3, 2005. Notice of her claims was given to the Defendant Agency on or about January 20, 2006. Her claims will therefore be timely on or about February 21, 2006.
47. Plaintiff Herbert Schirf was born on September 10, 1945. He began his service with FDIC on March 4, 1974. His employment as a R&R Specialist, Grade 12 in DRR ended on April 30, 2005. He received a retirement annuity starting June 1. Notice of his claims was served on the EEOC on or about January 20, 2006. His claims will therefore be timely on or about February 21, 2006.
48. Plaintiff James M. Scott was born on April 28, 1943. He began work with Defendant Agency on October 20, 1986. He was a R&R Specialist, Grade 12 in DRR. He accepted a buyout and a reduced annuity. He was discharged from employment by the Agency
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effective on April 30, 2005. Notice of his claim was served on the EEOC on February 7, 2006. His claims will therefore mature and be timely on or about March 9, 2006.
49. Plaintiff Patrick J. Shute was born on March 4, 1949. He was employed by the Defendant Agency starting on September 30, 1985. He had become the Department Head of the Claims Department of DRR in the Dallas office, receiving excellent performance appraisals in that position. In 2001, however, the Defendant Agency eliminated him from that position, and created two “Section Chief” positions to perform the duties he had performed as Department Head. The Defendant Agency awarded both of those new positions to much younger employees who had substantially less experience and expertise than Shute. Plaintiff Shute was a R&R Specialist, Grade 14 with 19 years and 4 months of service with the Defendant Agency when the Defendant Agency offered him a discharge from employment with a buyout and an early retirement, or a discharge from employment without a buyout and without an early retirement. He accepted the discharge with a buyout and early retirement. The Defendant Agency discharged him from employment effective May 14, 2005.
50. Plaintiff Sherry Thiels was born on October 20, 1948. She started with FDIC on December 16, 1976. She took the buyout option and the Agency discharged her from its service in her position as a R&R Specialist, Grade 13 on May 14, 2005.
51. Plaintiff Marc Valentine was born on November 7, 1941. He started his most recent employment with FDIC in February or March of 1987. He had worked for FDIC for nine months in 1985. He accepted an incentive which ended his employment as a R&R Specialist, Grade 12 with FDIC on May 14, 2005.
52. Plaintiff Frances Wardell was born on September 22, 1952. She was employed by
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FDIC for 18.5 years. She was a R&R Technician, Grade 7 when she was discharged from her employment on September 3, 2005.
53. Plaintiff Jackson Ware was born on July 5, 1945. He was employed by Defendant Agency for 19 years and 2 months. He was a Supervisory Resolutions and Receiverships Specialist, Grade 14 employee. He accepted an incentive to retire early. The Defendant Agency discharged him from employment effective May 14, 2005.
54. Plaintiff Kerry Williams was born on August 1, 1941. He was hired by Defendant on or about June 19, 1989. He was a R&R Specialist, Grade 12. He accepted an incentive to accept a reduced annuity. The Defendant Agency terminated him from its employment on May 14, 2005.
55. Defendant Martin J. Gruenberg is the Acting Chairman of the FDIC. He is sued in his official capacity as the head of the FDIC under Section 15, 29 U.S.C. § 633a and 28 U.S.C. § 1391. The FDIC is an agency created by Congress in 1933 to provide insurance for deposits below $100,000 in national and state chartered banks and savings institutions. It is governed by a five member Board of Directors, all of whom are appointed by the President and confirmed by the Senate. The Board of Directors includes: 1) the Chairman, 2) the Vice Chairman, 3) the Director, 4) the Director, Office of Thrift Supervision, and 5) the Director, Comptroller of the Currency. FDIC is an employer as defined by Section 14 of the Age Discrimination in Employment Act, 29 U.S.C. § 633a. As used in this Complaint the term “Defendant Agency” means the FDIC, including its Acting Chairman and the Board of Directors. Defendant Agency is an executive branch agency of the United States.
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FACTUAL BASIS FOR THE CLAIMS 56. In the mid-1990s, members of the Board of Directors of the FDIC discussed their desire to reduce the number of employees in the Agency because the extraordinary workload caused by the savings and loan and bank crises in the 1980s was shrinking. Members of the Board and/or officers of the Defendant Agency expressed opposition to any Reduction in Force (“RIF”) because under federal rules for “RIF”s, employees with seniority are favored, while younger, less experienced employees are more likely to lose their positions. 57. On November 25, 1997, the Board asked for a list of all employees age 50 and older. On January 6, 1998, Chief Operating Officer John Bovenzi presented the list of employees age 50 and older to the Board of the FDIC. Close to that time, the Defendant Agency announced a core staffing analysis in which those positions not identified as “core” were considered “excess.” Upon information and belief, the Defendant Agency reduced its work force in 1998 and 1999 through offers of incentives to retire or to retire early to employees who were then 50 years or older, particularly those who held positions classified as “excess.” 58. In remarks made to groups of employees in 2001 and 2002, Donald E. Powell, who was then Chairman of the FDIC, stated: “I want young people around me---- they have all the innovative ideas.” 59. In the summer of 2002, at a discussion open to employees of the two divisions of the Defendant Agency that were about to be consolidated, Chairman Donald E. Powell asked to see the hands of employees who had been with FDIC for more than twenty (20) years. He then said: “It is time for you long-term employees to go and give the younger
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employees a chance to advance,” or words to that effect. 60. In order to receive a full retirement annuity under the Federal Employee
Retirement System (“FERS”) or under the Civil Service Retirement System (“CSRS”), a federal employee must be at least 55 years old and have at least 30 years of federal service, except that employees age 62 or older can retire with at least 10 years of service. 5 U.S.C. § 8412 (a)(d) and (h). However, a federal agency attempting to reduce the size of its work force through a Reduction in Force (RIF) may, under the regulations of the Office of Personnel Management, offer an early retirement, which is less than a full annuity, to those employees age 50 and above whose employment or grade may be harmed by the RIF.
61. At the end of 2001, FDIC employed 6,229 people. On February 6, 2002, Chief Operating Officer Bovenzi sent a message to all employees that 400 staff were currently “excess” and that total excess would be 600 by the end of 2006.
62. After offering incentives for early retirement in late 2001 or early 2002, the Defendant Agency conducted a RIF in which it discharged 20 employees in May 2002. Upon information and belief, plaintiffs assert that most of those harmed by the 2002 RIF were more than 50 years old.
63. On September 16, 2002, Chairman Powell advised FDIC employees that the Defendant Agency would make a broad RIF unless 400 or more employees accepted a buyout and left their employment with the Agency. If 400 employees had done so, the Agency’s work force would have been reduced from 6,209 to 5,809 employees. By October 11, 2002, 645 employees had accepted a buyout. Upon information and belief, a high proportion of the employees who accepted the buyout were more than 50 years old.
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64. By year end 2002, the permanent staff of the Defendant Agency had been reduced from 6,104 to 5,402. The temporary and “term” staff had been reduced from 125 to 55, leaving a total staff of 5,457. By year end 2001, the FDIC employed 372 fewer employees than the reduction target set by Chairman Powell for that date.
65. On January 6, 2003, the Defendant Agency, through Chief Operating Officer Bovenzi, announced without explanation that 200 of its employees were still excess. Upon information and belief, the Defendant Agency offered incentives to retire in the first half of 2003. On July 14, 2003, the Defendant Agency, pursuant to a RIF, discharged 39 employees and reduced in grade 33 additional employees. Upon information and belief, most of the employees whom the Defendant Agency discharged or reduced in grade in its 2003 RIF were over the age of 50.
THE 2005 REDUCTION IN FORCE 66. As of October 26, 2004, the workforce of the Defendant had been further reduced to approximately 5,300 or fewer employees. 67. By a memorandum to All FDIC Employees Corporate from the Chief Operating Officer, dated October 26, 2004, Defendant Agency announced “that each division and office was asked to determine if their organizational focus and workforce composition is properly aligned with the current workload and the evolving corporate vision.” The Defendant Agency announced that “several factors” including continued industry consolidation and improved efficiencies with the FDIC . . . support the conclusion that the FIDC will need to become a smaller agency” and began “active planning for RIFs in DRR and DIRM, DOA, Legal and DOF.” The Defendant Agency estimated a “reduction of between 500 and 600" through a RIF
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positions by the end of 2006 with “most of the reductions occurring by year-end 2005.” 68. On the afternoon of October 26, 2004, Director Glassman of DRR announced
that based upon “our review of new business procedures and our budget submission” that he recommended that “staffing levels be reduced from 515 to 240 positions.” That meant that 275 positions out of the 515 positions in DRR, or 53%, would be eliminated by the end of the third quarter 2005. Defendant further stated that “the recently announced Corporation-sponsored buyout program will be open to all DRR employees with the exception of EM employees through mid-May, 2005 and that DRR employees “will have the opportunity to apply for crossover opportunities at both grade 12 and grade 5/7/9 levels with the Division of Supervision and Consumer Protection.” Defendant Agency stated that “a Reduction-in-Force (RIF) in both Washington and Dallas to involuntarily separate any remaining surplus employees” will occur and that it will be conducted and completed by the end of the third quarter 2005.” Upon information and belief, the RIF in DRR was the only one understated by the Defendant Agency from October, 2004 through December, 2005.
69. In late 2004 or 2005, the Defendant Agency renamed 67 cross-over positions, designated them as “new” or “vacant,” and proceeded to hire, promote or transfer employees from DRR and elsewhere to fill those positions in late 2004 or early 2005. Upon information and belief, the Defendant Agency awarded most of those 67 positions to employees who were fortyfive (45) years old or younger, all of whom were significantly younger than the plaintiffs, and almost all of whom had significantly less service than plaintiffs.
70. Under lawful regulation, federal agencies who undertake a Reduction in Force may offer an early retirement annuity to employees who have attained age 50 and have at least 20
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years of service. Regulations of the Office of Personnel Management govern when a reduction in force by an executive branch agency and some other federal agency is consistent law. 5 C.F.R. § 3511. 202. Each agency “is responsible for following and applying the regulations when the agency determines that a reduction in force is necessary.” 5 C.F.R. § 351.204.
71. In a reduction in force, the OPM must require, and the Agency must utilize a process for “release of competing employees which gives effect to (1) tenure of employment, (2) military preference, (3) length of service; and (4) efficiency or performance ratings. ” 5 U.S.C. § 3502.
72. Before obligating any resources for voluntary separation incentive payments to its employees, the head of each agency must submit a plan to the Director of OPM outlining the intended use of such payments. Such a plan may not be implemented without the approval of the Director of OPM. 5 U.S.C. § 3522.
73. Upon information and belief, Defendant Agency has not publicly asserted that the 2005 in DRR was necessary. However, DRR employees were informed via a notice letter that: “This RIF is necessary due to lack of work and/or a need to reorganize the way we perform our work.”
74. In the fall of 2004, the Defendant Agency made a buyout offer to those DRR employees who were less than 50 years of age and to other employees 50 years of age and older who were not yet eligible to receive a full retirement annuity. The Defendant Agency offered these employees the choice of being discharged from their employment with an incentive to retire or resign with an early retirement or face the likelihood of being discharged without an early retirement. The Corporation Buyout program announced on October 26, 2004. It was open to all
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DRR employees at all grade levels, with the exception of EM employees, but the employees who accepted were obliged to submit their applications by December 31, 2004. The buyout included a cash payment equal to 50% of total annual salary and the ability to combine the buyout with either regular or early retirement.
75. Approximately 102 employees over the age of 50, including Plaintiffs Barrow, Brown, Cain, Cantrell, Connell, Dillow, DuPree-Ellis, Fairfield, George, Glazener, Gray, Haag, Henderson, Hoover, Kelly, Leal, Lett, McAnally, Montoya, Parker, Patterson, Petri, Schirf, Scott, Shute, Thiels, Valentine, Ware and Williams accepted the buyout and signed the Intent to Retire Early document. Some employees over 50, including Carole Mann and Richard Mann accepted a buyout to leave the Defendant Agency for lower grade positions in another Federal Agency. Defendant Agency separated each of the plaintiffs named above from their employment with FDIC in the spring of 2005, effective no later than May 14, 2005. The Defendant Agency also separated each of the other employees who accepted a buyout and early retirement in the spring of 2005, effective on or before May 14, 2005.
76. The retirement income of most of the above-named plaintiffs and other employees who accepted the early retirement is less than 25% of the salary they received as employees of the FDIC. For many such plaintiffs and other employees, their retirement income is less than 15% of the salary they had been receiving as employees of the FDIC.
77. Under the Defendant’s 2005 RIF some employees who were 55 or more years of age with 30 years of service, or who had reached age 62 or 65 with 10 or more years of service, and were eligible for full retirement were not offered a buy out because they were already eligible for retirement.
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78. The Defendant Agency by letter of June 30, 2005 advised Plaintiffs Aliotta, Anderson, Avery, Bonner, Catapat, Claude, Cline, Ellis, Elrod, Everett, Harootunian, Kebbeh, Keller, Lindsey, Moritz, Powers, and Wardell, and approximately 45 other employees that:
You will be affected by a reduction in force (RIF) action. This RIF is necessary due to lack of work and/or a need to reorganize the way we perform our work. Consequently, your last day of work with the FDIC will be September 2, 2005, and you will be separated from the Federal service on September 3, 2005 . . . The RIF action does not reflect on your service, performance or conduct. FDIC is appreciative of your service and sincerely regrets taking this action. 79. Defendant Agency separated Plaintiffs Aliotta, Anderson, Avery, Bonner, Catapat, Claude, Cline, Ellis, Elrod, Everett, Harootunian, Kebbeh, Keller, Lindsey, Moritz, Powers and Wardell from their service with FDIC effective on September 3, 2005, together with approximately fifty (50) other employees. Most employees that FDIC separated from its service effective on September 3, 2005 were over the age of 50, and many of them were 55 or older. In 2005, the Defendant Agency discharged only a few employees in DRR who were under the age of 45, and even fewer employees who were under age 40. 80. The Defendant Agency placed the names of some of the plaintiffs and other older employees on a Re-employment Priority List, but the Defendant Agency filled any vacant positions with younger and less senior employees who were no better qualified than plaintiffs and no better qualified than other older workers. The Defendant Agency favored younger employees in making selections from the Re-employment Priority List and discriminated against older employees in violation of the ADEA. 81. The Defendant Agency also excluded from the 2005 RIF those employees in DRR who were designated as “managers.” Such managers usually hold Grade 13, 14, 15 or a higher
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rank and are therefore the highest paid employees of the Defendant Agency. Upon information and belief, plaintiffs assert that most of the persons that the Defendant Agency promoted or hired for positions as managers in the years 2001, 2002, 2003, 2004 and 2005 were significantly less than 50 years old. Consequently, many of the managers are significantly younger than the plaintiffs.
82. On September 2, 2005, the Defendant Agency, through its Human Resources Division, asked a substantial number of regular, full-time employees to volunteer to act as recruiters and to recruit and hire new employees from college and university campuses as a collateral assignment. The object of the program was for the Defendant Agency to hire “interns” at grades 7, 9, 11 and above for a three year internship program with the expectation that they would serve in grades 12 and higher, including managerial positions, after they completed their internships and received their commissions.
83. At all material times during the downsizing programs in 2002, 2003, 2004 and 2005, Defendant Agency continued its recruitment, hiring and employment of new employees. Many of those hired by the Defendant Agency each year were recruited to apply for “intern” positions under the Defendant Agency’s annual recruitment program for corporate employees.
84. By focusing on recruitment from colleges and universities in the recruitment and hiring of new employees, while discharging from its employment trained and experienced older employees including plaintiffs and the class of older employees, the Defendant Agency in 2005 discriminated against its older employees in violation of the ADEA.
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85. In designing and implementing the RIFs in DRR in late 2004 and in 2005, the Defendant Agency engaged in a pattern and practice of purposeful discrimination against plaintiffs and its other employees over the age of 50. The 2005 RIF was designed and intended by Defendant Agency to have a disparate impact against its employees over age 50; and the RIF actually had a disparate impact against such employees. In the 2005 RIF, the Defendant Agency treated significantly younger employees more favorably than the class of employees over the age of 50.
86. Even if the Defendant Agency did not intend to discriminate against plaintiffs and other older employees, its conduct in designing and implementing the 2005 RIF had a discriminatory impact against plaintiffs and other employees over the age of 50.
87. The Defendant Agency’s design and execution of the 2004 and 2005 RIFs were not based on a reasonable factor other than age.
88. Although it studied the possibility of conducting a RIF of Divisions and Offices other than DRR, the Defendant Agency chose the DRR for its only Reduction in Force from October 2004 through December 2005.
89. The Defendant chose to conduct the 2005 RIF harming the older employees in DRR in whole or in substantial part because DRR’s work force was significantly older than the work force of its other Divisions.
90. Pursuant to its 2005 RIF, the Defendant Agency terminated the employment of approximately 171 employees in its Division of Resolutions and Receiverships in May and September of 2005. At least 126 employees who were terminated are over the age of 50.
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91. Each of the plaintiffs and other members of the class of employees over the age of 50 had performed satisfactorily. As acknowledged in its letter of June 30, 2005, plaintiffs and the other older employees the Defendant Agency harmed in conducting its 2005 RIF were not selected for termination or reduction in grade because of their poor performance, or because their performance was not as good as the younger employees the Defendant Agency decided to retain.
92. The Defendant Agency stated in its Special Notice letter of June 30, 2005 that: “This RIF is necessary due to lack of work and/or a need to reorganize the way we perform our work.” That statement is not accurate. The Defendant Agency had sufficient work to hire new employees in 2005 and it retained many younger employees, and promoted some of them in the fall of 2004 and in 2005, while discharging plaintiffs and other employees over the age of fifty (50) from its employment.
93. Whatever “need to reorganize the way we perform our work” the Defendant Agency might have had on June 30, 2005 was not remedied or addressed by the Defendant Agency’s conduct in discharging plaintiffs and other experienced employees who had performed satisfactorily and replacing them with younger employees with fewer skills and abilities.
94. The Defendant Agency had no business reason or justification, other than the Reduction In Force, for discharging the Plaintiffs and many its other employees in DRR who are over 50 years old its employment, and in reducing the grade of some of its older DRR employees.
CLASS ALLEGATIONS 95. Numerosity. The class is comprised of at least one-hundred twenty-six (126) former employees of the FDIC, born on or before December 30, 1955, who were harmed by the 2005 Reduction in Force in violation of the ADEA. In addition to the termination of the employment
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of the older DRR employees, the Agency harmed other employees, including Plaintiff Gregory Haag, by reducing their grade. The claims of all the potential class members are so numerous that joinder would be impractical.
96. Commonality. The questions of fact and law of Plaintiffs Aliotta, Catapat, George, Haag, Harootunian, Patterson, Shute, and Wardell are common to the other plaintiffs and other members of the class. The evidence in support of each of the claims of discriminatory treatment those seven Plaintiffs is similar to the evidence which would be offered by the class to show unlawful discrimination against other older employees who were terminated from their positions in the DRR or otherwise harmed by the age discrimination conduct of the Defendant Agency in the RIF from November, 2004. The following allegations of fact are common to the class (Fed. R. Civ. P. Rule 23(c)(2) and (3)):
- The class members are individuals born on or before December 31, 1955, who were employed by the FDIC in its DRR in November 2004 and also were separated from their employment by Defendant Agency effective from November 30, 2004 through September 3, 2005, or who were reassigned to a lower grade or compelled to move by the actions of the Defendant Agency.
- The Defendant Agency terminated its employment of most of the members of the class as part of the 2005 RIF, and reduced the grade of other members of the class.
- The younger employees retained by the Defendant Agency had no greater skills, abilities, experience, or knowledge than the plaintiffs and other members of the class whom the Agency discharged or demoted or induced to leave its employment.
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97. Typicality. Plaintiffs Aliotta, Cain, Glazener, Harootunian, Patterson, Shute and Wardell have claims that are typical, if not the same as, those of the other class members, and claims of Plaintiff Gregory Haag are typical of the members who accepted a position with Defendant Agency that is lower in grade than their former position.
98. Adequacy. The class representatives will adequately represent the class. The class representatives have no interests that conflict with the interests of the class. Their legal representative, Rose & Rose, P.C., will adequately represent the class. The firm has litigated cases in the federal courts since 1989, representing plaintiffs in pattern or practice cases and collective actions and class actions.
CLAIM FOR RELIEF (All Plaintiffs and Class Members for Violation of the ADEA) 99. Plaintiffs reassert and re-allege paragraphs 1 through 98, inclusive, as though fully set forth herein and incorporate said paragraphs herein by reference. 100. Defendant Agency’s design and implementation of the 2005 Reduction in Force of employees in DRR harmed plaintiffs and its other older employees; that is, those age 50 and above, by intentionally discharging them from employment because of their age although those employees would not have resigned or chosen to retire in the absence of the serious threat that they might be terminated with no retirement income for years. 101. Defendant Agency’s design and implementation of the 2005 RIF harmed its oldest employees, those 50 years of age and older, by discharging a disproportionately high percentage of the oldest workers from its employment, without demonstration that it relied upon a reasonable factor other than age. The Defendant Agency has not shown and cannot show that the
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practices were justified by a reasonable factor other than age. The practices of the Defendant Agency in designing and implementing the 2005 RIF violated Section 15 of the ADEA, 29 U.S.C. § 633a.
WHEREFORE, Plaintiffs pray for entry of: 1) An order granting plaintiffs’ request for class certification of the class of: Employees born on or before December 30, 1955, who were discharged from their employment in the Division of Resolutions and Receiverships of the Defendant Agency or reduced in grade pursuant to the 2005 RIF, and any other class that may be disclosed by the evidence to be produced in discovery; 2) An injunction declaring unlawful the practices followed by the Defendant Agency in its 2005 RIF, and restraining Defendant Agency from engaging in further practices which discharge or demote older employees because of their age by use of a RIF or other devices; 3) An injunction requiring the Agency to reinstate plaintiffs and members of the class described above to their employment with the Agency; 4) A judgment awarding the plaintiffs and members of the class or classes back pay and other loss of income, loss of retirement and health benefits, and other make-whole relief; 5) An order awarding positions to the plaintiffs and members of the class for which they could and can perform, unless the Defendant Agency can show that the younger employee who was selected for the position was better able to perform the duties of the position than the plaintiffs or other older employees of the class harmed by the conduct of the Defendant Agency 2005 RIF;
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6) An award to the plaintiffs of the costs of litigation including reasonable expenses, attorneys' fees and expert witness fees;
7) Such other relief as may be just.

Dated: February 8, 2006

Respectfully submitted,
/s/ David L. Rose /s/ Terri N. Marcus
David L. Rose, D.C. Bar No. 376379 Terri N. Marcus, D.C. Bar No. 483175 Rose & Rose, P.C. 1320 19th Street, N.W. Suite 601 Washington, D.C. 20036 Tel: (202) 331-8555 Fax: (202) 331-0996
Attorneys for Plaintiffs

27

 
 United States District Court, District of Columbia. Barbara ALIOTTA, et al, Plaintiffs, v.
Sheila C. BAIR, Chairman, Federal Deposit Insurance Corporation, Defendant. No. 105CV02325. February 25, 2008.
Memorandum In Support of Defendant's Motion for Summary Judgment
William S. Jones, Georgia Bar No. 404288, Counsel, Legal Division, Federal Deposit Insurance Corporation, 3501 N. Fairfax Drive (VS-E6006), Arlington, VA 22226, (703) 562-2362, (703) 562-2482 (Fax).Stephen J. Kessler, D.C. Bar No. 382427, Counsel, Legal Division, Federal Deposit Insurance Corporation, 3501 N. Fairfax Drive (VS-e6014), Arlington, VA 22226, (703) 562-2311, (703) 562-2482 (Fax), Attorneys for Defendant. I. INTRODUCTION
Due to a declining workload, the Federal Deposit Insurance Corporation (“FDIC” or “Agency”) conducted a reduction-in-force (“RIF”) in 2005 within its Division of Resolutions and Receiverships (“DRR”), in accordance with OPM regulations found at Part 351 of Title 5, Code of Federal Regulations.
Plaintiffs filed this case as a class action in December of 2005, alleging that the Agency's design and implement- ation of the RIF harmed DRR employees age 50 and older.[FN1] Plaintiffs allege both disparate treatment and disparate impact claims under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq. pecifically, Plaintiffs have alleged that “[t]he Defendant chose to conduct the 2005 RIF harming the older employ- ees in DRR in whole or in substantial part because DRR' s work force was significantly older than the work force of its other Divisions” (Am. Comp., 89), and that the FDIC either intentionally discharged employees age 50 and older because of their age, or discharged a disproportionately high percentage of employees age 50 and older (Id., ¶¶ 95-96).[FN2]
FN1. Plaintiffs filed an amended complaint on February 8, 2006, which joined additional named plaintiffs. This is a non-jury case. See Lehman v. Nakshian, 453 U.S. 156 (1981).
FN2. None of the Plaintiffs has asserted an individual claim for relief in addition to the class claims set forth in paragraphs 95 and 96 of the Amended Complaint.
The Court granted Plaintiffs' motion for class certification on July 25, 2006, concluding that the case may pro- ceed on behalf of a class defined as: Former or present employees of FDIC's Division of Resolution and Receiverships who were born on a date on or before September 30, 1955 and who, as a result of the 2005 RIF, either accepted a buyout or reduction in grade, or were terminated from their positions in the DRR.
The record evidence shows that no employee was compelled to accept a buyout as a result of the RIF. Rather, all employees who accepted a buyout did so voluntarily before the RIF was actually conducted and before any em-

ployees received any specific RIF notices. Moreover, the record evidence shows that age was not a factor in the FDIC's decisions to reorganize and downsize DRR, or in the design or implementation of the RIF. The record also shows that the FDIC followed applicable federal law and regulations (as well as Agency RIF procedures) in conducting the RIF.
With regard to Plaintiffs' disparate treatment claims, the evidence shows that, contrary to Plaintiffs' allegations, FDIC did not treat employees age 50 and older less favorably than younger employees in designing or imple- menting the RIF. Further, the record evidence shows that the FDIC had legitimate reasons, having nothing to do with age, for its design and implementation of the RIF. Defendant, therefore, is entitled to summary judgment on those claims.
With regard to Plaintiffs' disparate impact claims, the record evidence shows that the RIF had no disparate im- pact on employees age 50 and older. In fact, the evidence shows that employees age 50 and older actually fared more favorably in the RIF than younger employees. Further, the evidence shows that the Agency's employment decisions were based on reasonable factors other than age. The FDIC, therefore, is entitled to summary judg- ment on Plaintiffs' disparate impact claims as well.
After full and ample discovery, Plaintiffs have marshaled no evidence to show that any of the actions taken by the Agency during the 2004-2005 downsizing and RIF in any way violated their rights under the ADEA. As demonstrated below, and as demonstrated in the Rule 7(h) Statement of Undisputed Facts accompanying Defendant's Motion for Summary Judgment, there is no genuine issue as to any material fact on any of Plaintiffs' claims. See Fed. R. Civ. P. 56. Defendant therefore respectfully requests that judgment for Defendant be entered as a matter of law, and that this matter be dismissed with prejudice.
II. FACTUAL BACKGROUND
The FDIC is an independent agency of the federal government that provides deposit insurance for virtually all United States banks and savings and loan associations. It also manages and safeguards the deposit insurance fund, in part by serving as the primary regulator of state chartered banks that are not members of the Federal Re- serve System, and by resolving failed institutions whose deposits it insures. Thus, it has three major program areas: (1) insurance; (2) supervision; and (3) receivership management. See 12 U.S.C. §§ 1815, 1820-21.[FN3]
FN3. See also “Who is the FDIC?,” publicly available at http:// www.fdic.gov/about/learnsymbol Deposition of DRR Deputy Director James Wigand, attached as Exhibit 34 (“Wigand Dep.”), at 34-35.
During the well-known bank and thrift crisis of the late 1980's and early 1990's, the FDIC experienced a signi- ficant increase in staffing, due in large part to its responsibility for disposing of billions of dollars of assets be- longing to failed financial institutions that had been placed into receivership. See “Managing the Crisis: The FDIC and RTC Experience, Chronological Overview: Chapter Fourteen - 1991,” publicly available on the inter- net at http://www.fdic.gov/bank/historical/managing/Chron/1991. In 1989, Congress established the Resolution Trust Corporation (“RTC”), a temporary agency staffed by FDIC employees, to help deal with the crisis. 12 U.S.C. § 1441a(b)(8) (2000). Together, the FDIC and RTC hired large numbers of permanent and temporary employees to accomplish their mission, so that at the height of the crisis in 1991, the total workforce of both agen- cies (including 8,614 RTC employees) equaled 22,586. “Managing the Crisis: The FDIC and RTC Experience, Chronological Overview: Chapter Fourteen - 1991,” publicly available on the internet at http://www.fdic.gov/bank/historical/managing/Chron/1991. Effective December 31, 1995 and pursuant to statute, the RTC was terminated, and its assets, liabilities and employees were transferred to the FDIC. 12 U.S.C. §

1821a(a)(1) and 12 U.S.C. § 1441a(m)(2)-(3) (2000).

A. The FDIC's agency-wide downsizing began in the 1990's.

As the bank and thrift crisis eased and the health of the industry improved, the workload of the FDIC, especially its

liquidation work, dramatically declined. Between 1980 and 1994 more than 1,600 banks insured by the FDIC were

closed or received FDIC financial assistance, far more than in any other period since the advent of federal

deposit insurance in the 1930s.[FN4]

Beginning in 1994, however, the number of financial institution

failures

began to drastically decrease (e.g., there were 15 failures in 1994, 8 in 1995, 6 in 1996, and 1 in 1997). Cons[iFstNe5nt]

with its duty as the fiduciary of the deposit insurance funds, the FDIC began to reduce its staff.[FN6]

FN4. See “The Banking Crisis of the 1980s and Early 1990s: Summary and Implications,” found at http://www.fdic.gov/bank/historical/history/3 85.pdf.

FN5. See “Historical Statistics on Banking, Closings and Assistance Transactions, 1994-2007,” http://www2.fdic.gov/hsob/HSOBSummarRpt.asp? BegYear=1994&EndYear=2007&Stte.

FN6. The FDIC pays the salaries of its staff from the deposit insurance fund, which is funded by premi- ums that financial institutions pay for deposit insurance coverage. See “Who is the FDIC?,” available at http:// www.fdic.gov/about/learn/symbol.

The FDIC's need to downsize its workforce because of a declining workload (and in particular, due to the dra- matic reduction of failed bank assets in liquidation, for which DRR was responsible) was discussed in the Agency's 1996 Annual Report: As part of the new budgeting process, each of our divisions and offices justifies its staffing levels by workload, and 1996 saw continued dramatic reductions in the overall workload of the FDIC. The book value of assets in li- quidation at the FDIC peaked in mid-1992 at $44.4 billion. As of year-end 1996, they stood at $8.7 billion - only one-fifth of the 1992 levels - despite $7.7 billion in Resolution Trust Corporation (RTC) assets transferred to the FDIC at the end of 1995, when the RTC sunset occurred. About $4.4 billion of the assets in liquidation on our books at year-end were those assets transferred from the RTC, with the remaining $4.3 billion representing as- sets from FDIC liquidations. Staffing size correlates closely with expenses at the FDIC. In the aftermath of the banking crisis of the late 1980s and early 1990s, FDIC staffing [(excluding RTC)] peaked in mid-1993 at 15,611. It has been difficult, but necessary, to tell many employees who served the FDIC and this country well during the banking crisis that we no longer have jobs for them. We have sought to be as humane as possible in this process by offering generous cash buyouts, direct job placement assistance, and opportunities to compete for the limited number of jobs open in other parts of the Corporation. The FDIC has been and will continue to be exceedingly well served by the pro- fessionalism and dedication of its staff. Most of the reduction since 1993 came from the Division of Resolutions and Receiverships (DRR), formerly the Division of Depositor and Asset Services (DAS) and the Division of Resolutions (DOR), before those two divi- sions were merged in December of 1996. The staff of those two divisions peaked at 6,966 in mid-1993, but their combined total declined to 1,819 as of year-end 1996.
1996 Annual Report, Chairman's Statement.[FN7]

FN7. Available at http:// www.fdic.gov/about/strategic/report/1996/chair.html#eduction.

The FDIC's downsizing efforts continued in 1997 and beyond. In an ADEA lawsuit brought in 2003 in connec- tion with prior FDIC-wide downsizing, the Court observed: Downsizing efforts continued in 1997. Based on updated analyses of core staffing requirements, the Board [of Directors of the FDIC] decided to close four field offices of the Division of Supervision and one of the Division of Consumer Affairs. Staff at those offices were reassigned or accepted a voluntary buyout through a Relocation Buyout Program. Employees in four divisions were offered a new buyout program. Further, nearly all eligible employees were offered the opportunity to participate in an early retirement program. Memos from 1998 through 2003 reflect further consolidation of departments, additional targeted buyout programs, early retirement programs, and RIFs.

Armstrong v. Powell, 230 F.R.D. 661, 666-67 (W.D. Okla. 2005) (denying class certification) (footnotes omit- ted).

B. The FDIC's agency-wide downsizing continued in 2004-2005.

The FDIC's workload continued to decline in 2004-2005 due to industry consolidation and the robust health of the

banking industry. In 2004, the overall number of institutions insured by the FDIC decreased, and bank earn-

ings increased. 2004 Annual Report, Financial Statements and Notes - Overview of the

[FN8] These

Industry.

dual trends of industry consolidation and income growth continued in 2005. 2005 Annual Report, Overview of the Industry.[FN9]

FN8. See http:// www.fdic.gov/about/strategic/report/2004annualreport/overview industry.html: “The 9,025 commercial banks and savings institutions insured by the FDIC reported total earnings of $91.8 billion for the first three quarters of 2004, an increase of $2.0 billion (2.3 percent) over the same period of 2003.”

FN9. See http:// www.fdic.gov/about/strategic/report/2005annualreport/overview.pdf: “The 8,856 FDIC-insured commercial banks and savings institutions filing financial reports for September 30 reported total net income of $102 billion for the first three quarters of 2005, an increase of $10.2 billion (11.1 percent) over the same period in 2004.”

As explained in the FDIC's 2004 Annual Report, published in early 2005, these industry trends had a corresponding effect on the Agency's continuing need to manage its staffing levels: The FDIC's operating expenses are largely paid from the insurance funds, and the Corporation continuously seeks to improve its operational efficiency in fulfillment of its fiduciary responsibilities to the funds. To that end, the Corporation engages annually in a rigorous planning and budgeting process to ensure that budgeted re- sources are properly aligned with workload. That is particularly true with respect to staffing, since personnel costs constitute well over 60 percent of the Corporation's annual administrative expenses. In late 2004, the FDIC Board of Directors approved management recommendations to reduce authorized staffing by 674 positions, to 4,750, by year-end 2005. Authorized year-end 2005 staffing is substantially lower than previous authorized staffing levels for the resolu- tions and receivership business line as well as the IT and administrative support functions. Staffing reductions were approved for the Division of Resolutions and Receiverships and the Legal Division following a lengthy analysis of current and projected future workload in the resolutions and receivership management area and re- flect the smaller number of financial institution failures for the past several years. Staffing reductions in the Di- vision of Information Resources Management and the Division of Administration reflect improved business pro-

cesses, savings from contract consolidation, and outsourcing of functions where cost effective.
2004 Annual Report, Reducing Costs and Improving Financial Management.[FN10]
FN10. Found at http:// www.fdic.gov/about/strategic/report/2004annualreport/mgmt dna4.html.
During this time frame, Agency employees were initially informed by management that “[t]he FDIC of the fu- ture will be a smaller, more flexible agency” via a global e-mail message in early August 2004, which addressed “Workforce Planning for the Future.” Memorandum dated August 6, 2004, from John F. Bovenzi, Deputy to the Chairman and Chief Operating Officer, to FDIC Employees (“8/6/04 Bovenzi Memo”), attached as Exhibit 1, at 1. Employees were told that changes in the banking industry required the FDIC to change the way it did busi- ness, and that during the 2005 planning and budget formulation process then underway, the various divisions and offices would be reviewing their business processes and the skill sets required of employees for the FDIC to accomplish its mission. Id. at 2.[FN11] Employees were also told that reorganizations and a smaller workforce were envisioned, and that additional information would be provided as it became available. Id.
FN11. Specifically with respect to DRR, while the downsizing decision came about during the course of the FDIC's annual planning and budget formulation process, the rationale for the downsizing was “rooted in [DRR's] substantially diminished workload.” Deposition of Thomas E. Peddicord III, Deputy Director, Division of Finance (“Peddicord Dep.”), attached as Exhibit 32, at 33-34, 53.
In October, Agency employees were told in more detail that the FDIC would attempt to reduce its excess staff first through buyouts and then through reductions in force. Memorandum dated October 26, 2004, from John F. Bovenzi, Deputy to the Chairman and Chief Operating Officer, to All FDIC Employees (“10/26/04 Bovenzi Memo”), attached as Exhibit 6, at 1. The memorandum specifically told employees that staffing analyses con- ducted by management had determined that various divisions and offices of the Agency were overstaffed and that steps would be taken to reduce excess staff. Management described the overstaffed divisions as falling into two discrete groups for downsizing purposes: The first group includes divisions where staffing levels are not justified by current or projected workloads. These divisions are planning for substantial reductions in their workforces. DRR, DIRM [(Division of Informa- tion Resources Management, now the Division of Information Technology, or DIT)], DOA [(Division of Administration)], Legal, and DOF [(Division of Finance)] are included in this group. Buyouts are going to be offered to most employees in these divisions. Nevertheless, it appears likely that the necessary staffing reductions in these divisions cannot be accomplished entirely through voluntary departures. Accordingly, we have begun active planning for RIFs in DRR and DIRM in the third quarter of 2005, and in DOA, Legal, and DOF in 2006. The second group includes the remaining divisions and all of the offices [(i.e., the Office of Diversity and Eco- nomic Opportunity, Office of Enterprise Risk Management, Office of Inspector General, Office of Legislative Affairs, Office of the Ombudsman, and Office of Public Affairs)]. Staffing levels in these organizations are for the most part justified by current workload. As a result, in DSC [(Division of Supervision and Consumer Protec- tion)], DIR [(Division of Insurance and Research)], and the offices, there will be a more limited buyout program. There will not be a RIF in these organizations. Corporate-wide we estimate a reduction of between 500 to 600 positions from our current on-board workforce of nearly 5,300. These reductions will occur by year-end 2006, with most of the reductions occurring by year-end 2005.
Id. (emphasis added). Thus, in October 2004, it was anticipated that five major FDIC divisions - DRR, DIRM/

DIT, DOA, Legal and DOF - would need to downsize substantially through voluntary employee departures or face involuntary reductions-in-force in 2005 and 2006.
C. DRR had a need to reduce its staff and reorganize in 2005.
The Division of Resolutions and Receiverships administers one of the FDIC's mission critical functions - its receivership management program. When an FDIC-insured depository institution fails, the FDIC is appointed as its receiver, see 12 U.S.C. § 1821(c)(2)-(3). DRR manages receiverships, resolves troubled financial institutions and sells their assets in order to minimize costs and obtain the highest recovery for creditors and claimants. De- claration of DRR Director Mitchell Glassman (“Glassman Decl.”), attached as Exhibit 25, at ¶ 3. DRR also pays deposit claims and responds to the inquiries of customers of failed institutions and the public. Id.
The workload of DRR had continued to decline since 2003 due to a variety of reasons, including the record profitability and capitalization in the banking industry, which substantially decreased the failures of FDIC-insured financial institutions.[FN12] As a result, on August 19, 2004, Mitchell Glassman, the Division Director of DRR, sent a workforce planning message to all DRR employees, which candidly informed them that:
FN12. The number of bank failures remained very low - only three financial institutions failed in 2003 and four failed in 2004. There were no bank failures at all in 2005 and 2006. See “Historical Statistics on Banking, Closings and Assistance Transactions, 1994-2007,” available at http:// www2.fdic.gov/hsob/HSOBSummaryRpt.asp?BegYear=994&EndYear=2007&Stte=.
Economic analyses and projections for the health of the banking industry, coupled with technological advances and process improvements, require us to reevaluate our staffing needs. Although our analysis is not yet complete, it is apparent that fewer problem institutions and our adoption of more efficient business processes have led to a declining workload and excess staff. ... As a result, some difficult decisions must be made soon regard- ing the size and structure of our division ....”
Message from Director Glassman to all DRR employees in D.C. and Dallas, dated August 19, 2004 (“8/19/04 G2.lassman Memo”), attached as Exhibit 2, at [FN13] See also Deposition of Director Glassman (“Glassman
Dep.”), attached as Exhibit 30, at 48-49; Wigand Dep. (Ex. 34) at 82-83.
FN13. Similar follow-up messages regarding staffing were sent to employees in other divisions as well. See, e.g., various memoranda from 9/2/04 through 3/14/06 that were sent to the Legal Division's employees by the General Counsel concerning workforce planning and likely downsizing of the Legal Di- vision, attached as Exhibit 3.
In October, Director Glassman sent a follow-up message to DRR employees, in which he confirmed that DRR had “a significant staffing imbalance between existing resources and our current workload,” and that as a result, management planned to reorganize DRR and reduce its staff of 515 positions nationwide to approximately 240, retaining only 63 positions in Washington and 177 positions in Dallas. Message from Director Glassman to DRR, dated October 26, 2004 (“10/26/04 Glassman Memo”), attached as Exhibit 7, at 1. Although hope was ex- pressed that this reduction might be accomplished through an Agency-wide buyout program and crossover op- portunities to the Division of Supervision and Consumer Protection (DSC), it was projected that by the end of the third quarter 2005, “DRR will experience a Reduction-inForce (RIF) in both Washington and Dallas to in- voluntarily separate any remaining surplus employees.” Id. at 1-2.

DRR's formal reorganization and downsizing proposal was finalized and submitted for approval toward the end of October 2004, and was approved in mid-November. Memorandum from Director Glassman to Chief Operat- ing Officer Bovenzi, dated October 25, 2004 (“Reorg. Memo”), attached as Exhibit 5; Approval memorandum, dated November 16, 2004, attached as Exhibit 9. The approved reorganization proposal reduced DRR's Wash- ington staff from 101 to 63, and its Dallas staff from 413 to 173, “represent[ing] a 54% reduction in total staff [that] will save an estimated $34 million in annual salary costs.” Reorg. Memo (Ex. 5) at 1.
The factors underlying DRR management's conclusions regarding staffing were straightforward: Record profitability in the banking industry in recent years has led to a substantial decrease in the number of fin- ancial institution failures than were experienced in the 1980s and early 1990s. Industry consolidation continues to decrease the number of insured financial institutions. Emerging technology and improved business processes continue to enhance productivity and efficiency. These factors, along with the Corporate vision of a more col- laborative and integrative workforce capable of responding to mission critical functions, impact the Division and its need for personnel to handle subsequent resolution and receivership activities. ... As a result, the Division initiated a comprehensive strategic analysis of the way it projects itself doing business over the next 3-5 years and the impact this should have on current program activities, organizational structure, and overall cost. This review results in this recommendation to reorganize the Division and adopt a staffing strategy and revised business model that realizes operating efficiencies and ensures that critical mission respons- ibilities are met.
Reorg. Memo (Ex. 5) at 1-2. DRR's revised business model that was to be adopted in response to the substantial decrease in workload was based on a number of key elements, including the following: • Division workload will continue to be irregular and will always be represented over time with peaks and val- leys that could be dramatic at times. • The Division will rely on Division of Supervision and Consumer Protection (DSC) personnel to supplement staff to accomplish mission requirements associated with financial institution failures. • As needed, the Division will supplement many of its functional areas with contracting support in peak periods to manage and accomplish its workload in a cost efficient manner in lieu of carrying and maintaining staff re- sources associated with this function. • The structure of the Division will be comprised of subject matter and technical experts capable of leading and resolving functional specific efforts and problems related to the resolution and closing of failed financial institu- tions.
Id. at 2-3. The desired staff reductions would be accomplished through DRR's participation in the Agency-wide buyout program, outplacement initiatives and a RIF in 2005 to separate any remaining surplus employees. Id. at 4.
Following the approval of DRR' s reorganization, employees were informed about the details of the new organizational structure and that certain new positions were being established consistent with DRR's new business model, which would “focus[] on a smaller, more specialized workforce that leads, directs, and serves as an ex- pert resource for resolution and closing activities for the FDIC.” See Intranet posting of DRR organization charts with proposed staffing, dated November 23, 2004, attached as Exhibit 10, at 1. They were further informed that “[t]he new business model and its supporting organization structure addresses the Division's irregular and cur- rently low workload in a cost effective and efficient manner.” Id. at 2.
D. The FDIC's crossover program addressed the Agency's continuing need for bank examiners and af-

forded staff in surplus positions the opportunity to remain employed by the FDIC.
On October 19, 2004, Chief Operating Officer Bovenzi sent his second memorandum related to workforce plan- ning to all FDIC employees. Memorandum from John F. Bovenzi, Deputy to the Chairman and Chief Operating Officer, to FDIC Employees Corporate (“10/19/04 Bovenzi Memo”), attached as Exhibit 4. Of particular interest to DRR employees, the memo announced that the FDIC would implement a voluntary DRR-to-DSC crossover program that would allow DRR staff to apply for an “in-service” training program in DSC. Id. at 2. DSC is re- sponsible for bank examinations and was one of the FDIC's divisions that was not threatened with a RIF due to overstaffing. See 10/26/04 Bovenzi Memo (Ex. 6), at 1.
Subsequently, on February 1, 2005, a formal solicitation of interest was issued that announced the opportunity for qualified FDIC employees, including those in DRR, to apply for Grade 12 Financial Institution Examiner po- sitions in DSC. Memorandum from John F. Bovenzi, Deputy to the Chairman and Chief Operating Officer, to FDIC Employees Grade 12 and above nationwide, dated February 1, 2004 (“Crossover SOI”), attached as Ex- hibit 12. Prior bank examiner experience was not required in order to qualify for the solicitation of interest. Id. at 1. In addition, employees selected for the program who were currently occupying surplus positions were entitled to saved pay, i.e., their pay would not decrease. Id.[FN14] Employees selected for the program were to be transferred to their new positions on June 27, 2005. See Memorandum from John F. Bovenzi, Deputy to the Chairman and Chief Operating Officer, to All FDIC Employees, dated June 13, 2005 (“6/13/05 Bovenzi Memo”), attached as Exhibit 20, at 1. Prior to when specific RIF notices were issued in DRR on June 30, 2006, 51 DRR employees voluntarily transferred out of DRR to DSC under this program. Glassman Decl. (Ex. 25) at ¶ 10.
FN14. In addition to the DSC crossover opportunity for qualified employees who occupied positions at grade 12 and above, internal entry-level grade 5/7/9 Financial Institution Specialist positions in DSC were also available to lower-graded FDIC permanent employees, including those in DRR. See Memor- andum from John F. Bovenzi, Deputy to the Chairman and Chief Operating Officer, to FDIC Employ- ees, dated March 14, 2005 (“3/14/05 Bovenzi Memo”), attached as Exhibit 16, at 3.
E. Voluntary, agency-wide buyouts were offered to mitigate the effects of downsizing.
The 10/26/04 Bovenzi Memo to all FDIC employees also outlined the salient features of a voluntary, Agency- wide buyout program that was designed to encourage voluntary downsizing: (i) a buyout period that would last from early November 2004 to mid-May 2005 (except for DSC employees, who were required to submit their ap- plications by December 13 and depart by December 31, 2004); (ii) a cash payment equal to 50% of total salary; (iii) certain supplemental incentives; (iv) the ability to combine the buyout with either regular or early retire- ment; (v) no restriction on re-employment by another federal agency (with a requirement to repay the gross amount of the buyout only upon re-employment by the FDIC within five years); and (vi) management's discre- tion to delay the departures of selected employees based on workload considerations. 10/26/04 Bovenzi Memo (Ex. 6), at 1-2. There were no age restrictions or differences in the buyout terms based on age. See id.; Depos- ition of Joy Crosser (“Crosser Dep.”), attached as Exhibit 29, at 26-27.
In November 2004, individual notification via e-mail was provided to all eligible FDIC employees in the various Divisions and Offices, to inform them of their eligibility to elect the buyout as well as the specific terms of the buyout program for their Division or Office. See Declaration of Joy Crosser (“Crosser Decl.”), attached as Ex- hibit 24, at ¶ 7. Notification was sent to DRR employees in the Dallas and Washington, D.C. offices on Novem- ber 2, 2004. Id. at ¶ 8; see Buyout Notification e-mail dated November 2, 2004 from Joy Crosser to DRR em-

ployees in Dallas and Washington, D.C. (“DRR Buyout Notification”), attached to the Crosser Decl. as Exhibit 24-1.
In addition to the information provided via e-mail, Buyout Fact Sheets containing the buyout information for each division and office were posted on the FDIC's internal website. Crosser Decl. (Ex. 24) at ¶ 9; see Buyout Fact Sheets for Divisions and Offices (including DRR), attached to the Crosser Decl. as Exhibit 24-2. Subsequently, the 2004/2005 FDIC Buyout Handbook was posted on the FDIC's internal website, in order to provide more detailed information about the terms and conditions of the buyout. Crosser Decl. (Ex. 24) at ¶ 10; see Buyout Handbook attached to the Crosser Decl. as Exhibit 24-3. There were no minimum age requirements for being eligible to elect the buyout. Crosser Decl. (Ex. 24) at ¶ 10.
The last day to submit or rescind an application for the buyout was May 2, 2005 (although DSC employees, who were not facing a RIF, had a different schedule and their final buyout application/revocation date was December 15, 2004). Id. at ¶ 11. Except for delayed departures approved by management for business reasons, employees who elected to take the buyout were off the FDIC's employment rolls by May 14, 2005, the final departure date. See DRR Buyout Notification (Ex. 24-1) at 1; Buyout Fact Sheets (Ex. 24-2).
Specifically as to DRR, the buyout was open to “[a]ll permanent DRR employees assigned to Washington and Dallas, except for employees occupying EM [(Executive Management)] positions.” DRR Buyout Notification (Ex. 241) at 1. Some DRR employees elected to take the buyout offer almost immediately. See, e.g., Buyout ap- plication for Plaintiff Peggy Henderson, dated November 8, 2004, attached as Exhibit 8. Other DRR employees electing to take the buyout continued their employment until the final May 14, 2005, departure date. See, e.g., Buyout application of Plaintiff Donald Lett, attached as Exhibit 14. In all, 132 DRR employees applied for and accepted the buyout. Crosser Decl. (Ex. 24) at ¶ 12. Employees who accepted a buyout were not considered for positions during the DRR RIF. Declaration of Pamela Mergen (“Mergen Decl.”), attached as Exhibit 26, at ¶ 14.
F. The DRR RIF was conducted in accordance with U.S. OPM rules.
In addition to the 132 DRR employees who applied for and accepted the buyout, an additional 73 DRR employ- ees were placed in other FDIC positions outside DRR. See Declaration of Lester Bodian (“Bodian Decl.”), at- tached as Exhibit 23, at Table A: “Transferred within FDIC” (employee nos. 198-270). Nevertheless, the FDIC found that a RIF was still needed to reduce remaining surplus staff in both the Washington and Dallas offices of DRR. Mergen Decl. (Ex. 26) at ¶¶ 4-6. The RIF was conducted in accordance with 5 C.F.R. Part 351 and the FDIC's RIF Circular, which was negotiated with the National Treasury Employees Union (NTEU), the exclusive representative of bargaining unit employees of the FDIC. Id. at ¶ 8; see Corporate Reduction-in-Force Policy, Circular 2100.4 (“RIF Policy”), attached as Exhibit A to the Mergen Decl.
The FDIC provided an informational notice of RIF to DRR staff members in Washington and Dallas on April 5, 2005, informing them that the RIF would go forward and would be effective in September 2005. See, e.g., Informational Notice of Reduction in Force to Dallas DRR employees, attached as Exhibit 17.[FN15] Along with this notice, FDIC provided each DRR employee with his or her RIF essential information, and notified employ- ees that this information would be used in determining retention standing and assignment rights in the RIF. See id. Employees were told to review and verify this information, and to review and supplement their Official Per- sonnel Folders (OPFs) with updated resumes and any missing information by May 6, 2005. Id.
FN15. Similar notice was provided to employees in DIT, the other division slated for a RIF in 2005. See Informational Notice of Reduction in Force to DIT employees, attached as Exhibit 18.

On June 30, 2005, DRR employees occupying surplus positions who were being displaced by the RIF received specific RIF notices, either notifying them that they had been assigned to a new position within DRR or that they would be separated. See, e.g., Specific RIF notice for Plaintiff Ann Bonner, attached as Exhibit 21. Under the federal RIF rules and the RIF Policy, there were two rounds of competition under which surplus employees could be placed in other DRR positions. Mergen Decl. (Ex. 26) at ¶¶ 9-10. In addition, employees were also placed into vacant positions during the RIF process. Id. at ¶ 7. These vacant positions were filled based on the best match of skills among the qualified employees as compared to the requirements of the vacant positions. Mergen Decl. (Ex. 26) at ¶ 13; see also Deposition of
Pamela Mergen (“Mergen Dep.”), attached as Exhibit 31, at 31-33.
During the RIF, 233 DRR employees either remained in their current DRR positions or were placed in other pos- itions in DRR. See Bodian Decl. (Ex. 23), at Table A: “Stayed in DRR” (employee nos. 271-503). Nevertheless, 53 DRR employees were involuntarily separated (46 of whom received severance pay), 7 DRR employees re- tired in lieu of separation, and 3 other employees resigned after receiving a specific RIF notice. See Bodian De- cl. (Ex. 23), at ¶ 7. All RIF actions were effective on September 3, 2005. Mergen Decl. (Ex. 26) at ¶ 17. As dis- cussed below in section IV.C.3, the adverse consequences of the RIF actually had less of an impact on DRR em- ployees age 50 and older (the class represented by the Plaintiffs) than other DRR employees. In any event, age was not a factor in the FDIC's decisions to reorganize and downsize DRR.
G. Employees in DRR had choices as to whether to accept a buyout, apply for other available positions in other divisions of the FDIC, or participate in the RIF process and be considered for available positions in
DRR.
As a result of the offerings of the FDIC to its employees, employees in DRR were presented with choices as to whether to: (i) accept the buyout offer and resign or retire; (ii) apply for other available positions in other Divi- sions of the FDIC; or (iii) participate in the RIF process and be considered for positions in DRR (either vacant or encumbered). As the FDIC's expert, Dr. Jeanneret, an industrial and organizational (I/O) psychologist, has ob- served, FDIC employees, not the FDIC, made those decisions. Report of P. R. Jeanneret, Ph.D. (“Jeanneret Re- port”), attached as Exhibit 27, at 24-25; Reply Report of P. R. Jeanneret, Ph.D. (“Jeanneret Reply Report”), at- tached as Exhibit 27-1, at 9-11. Of those 184 employees age 50 and older who departed from DRR in 2005, 112 chose to either resign or retire. See Jeanneret Reply Report (Ex. 27-1), at Table 1 (Age 50 and Older, Codes 301, 302, 303, 317). An additional 42 employees age 50 and older transferred to other divisions and offices within the FDIC. See id. (Age 50 and Older, “Transfer from DRR”).
FDIC's policy has been to avoid or mitigate RIFs to the greatest extent possi[bFleN. 16] During a RIF, employ-
ees with higher retention standing may displace other employees at lower grades and in different jobs through a process known as “reassignment,” which includes “bumping,” “retreating,” and other reassignment rights provided in the applicable regulations. See 5 C.F.R. Part 351; RIF Policy attached as Exhibit A to Mergen Decl. (Ex. 26) at section II-8. For this reason, RIFs can be tremendously disruptive to the operations and productivity of the Agency.
FN16. The RIF Policy expressly provides that “[e]very feasible effort should be made to avoid or mitig- ate a RIF.” RIF Policy attached as Exhibit A to Mergen Decl. (Ex. 26), at section 1-4. See also Jeanner- et Reply Report (Ex. 27-1) at p. 16 (“The Agency set out to achieve as much of the downsizing as pos- sible through employee choice rather than involuntary termination, and DRR was largely successful in

doing so (63 involuntary terminations out of a total reduction of nearly 270 individuals).”).
The buyout and early retirement programs were completely voluntary. The buyout was offered to employees in all Divisions and Offices, not just those in DRR, and early retirement was available to employees in nine Divi- sions and Offices, including DRR. See Buyout Fact Sheets (Ex. 24-2); Global e-mail message dated January 24, 2005, to FDIC employees concerning Voluntary Early Retirement (VERA) for Buy-Out Eligible Employees, at- tached as Exhibit 11. Further, DRR employees had from November 2, 2004, until May 2, 2005 to decide wheth- er to apply for the buyout, and once an employee applied for it, he could change his mind and withdraw his ap- plication at any time until May 2, 2005. DRR Buyout Notification (Ex. 24- 1) at 1; Crosser Decl. (Ex. 24) at ¶¶ 7, 11. An employee who did not volunteer to accept the buyout could continue to work for the FDIC and was not penalized for failing to accept it - he would continue to receive the same pay and benefits.
The voluntariness of the buyout program is further demonstrated by the fact that the employees had other op- tions. For example, they could have applied for a position in the FDIC's Division of Supervision and Consumer Protection (DSC) through the In-Service Placement Opportunity. Indeed, as noted, 51 DRR employees applied for and accepted positions as Financial Institution Specialists in DSC through the In-Service Placement Oppor- tunity.
Employees who chose to accept the buyout (and receive a buyout payment and other benefits) did not participate in the RIF process. Mergen Decl. (Ex. 26) at ¶ 14. Thus, they did not make themselves available for considera- tion for vacant positions filled during the RIF. If the DRR employees who took the buyout had chosen to parti- cipate in the RIF, they may have been selected for one of the vacant positions that were filled as part of the RIF process. Id. at ¶ 13. All DRR employees had notice that positions were available long before the final May 2, 2005 buyout acceptance date. In November 2004, DRR had published its new DRR business model with new DRR organizational charts to show the employees how many positions would be available and at what grade levels under the Division's approved reorganization plan. See Intranet posting of DRR workforce planning and transition organization charts (Ex. 10); see also Update regarding DRR vacancies and positions descriptions (March 2, 2005), attached as Exhibit 15. Employees were selected for vacancies during the reduction in force in accordance with federal RIF regulations and the FDIC's RIF Policy. Mergen Decl. (Ex. 26) at ¶ 13.
Further, had DRR employees not taken the buyout but decided to participate in the RIF process, they may have been placed in an encumbered position. Pamela Mergen, the FDIC's Human Resources Specialist who was re- sponsible for implementing the RIF, testified that the FDIC followed the RIF regulations of the U. S. Office of Personnel Management (USOPM) in conducting the RIF. Mergen Decl. (Ex. 26) at ¶ 5. Under 5 C.F.R. § 351.701 and the FDIC's RIF Policy, employees were afforded assignment rights (including “bump” and “retreat”) to occupied positions. Mergen Decl. (Ex. 26) at ¶ 11; RIF Policy attached as Exhibit A to Mergen De- cl. at section II-8. Thus, DRR employees who took the buyout may have retained a position in DRR had they chosen to remain and participate in the RIF process. In fact, as discussed above at section II.F, 233 DRR em- ployees either retained their current DRR positions or were placed in other positions in DRR during the RIF. See Bodian Decl. (Ex. 23), at Table A: “Stayed in DRR” (employee nos. 271-503).
In sum, the evidence demonstrates that DRR employees made voluntarily decisions to take the buyout. When they made this decision, they had at least four other options, including: 1. applying for and obtaining another position at the FDIC; 2. applying for a position in DSC through the FDIC's In-Service Placement Opportunity program or CEP; 3. participating in the RIF process and competing for a vacant position; and

4. participating in the RIF process and obtaining an encumbered position through “bump” or “retreat.”
III. APPLICABLE LEGAL STANDARDS
A. Summary Judgment Standard
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate if the pleadings on file, together with the affidavits and other admissible evidence of record, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Material facts are those that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment bears the initial burden of demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) ; Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). A genuine issue of material fact is one capable of affecting the outcome of the litigation that is supported by admissible evidence sufficient for a reasonable trier of fact to find in favor of the non-moving party. Anderson, 477 U.S. at 247-48.
In considering whether there is a triable issue of fact, the court must draw all reasonable inferences in favor of the nonmoving party. Id. at 255. 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.” Id. at 248. The non-moving party must do more than simply “show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Moreover, any factual assertions in the movant's affidavits will be accepted as being true unless the opposing party submits her own affidavits or other documentary evidence contradicting the assertion. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992). See also, United Mine Workers of America 1974 Pension v. Pittston Co., 984 F.2d 469, 473 (D.C. Cir. 1993) (when moving party demonstrates that no material factual issue remains, burden shifts to non- moving party to produce specific evidence that sufficiently undermines the movant's case to demonstrate a material factual dispute); Colbert v. Potter, 471 F.3d 158, 164 (D.C. Cir. 2006) (only disputes over facts that might affect the outcome of the suit under governing law will properly preclude entry of summary judgment); Dunaway v. Int'l Bhd. of Teamsters, 310 F.3d 758, 761 (D.C. Cir. 2002) (affirming summary judgment on ADEA claim where plaintiff failed to make showing sufficient to establish existence of element essential to plaintiff's case).
B. Burdens of Production and Persuasion Under the ADEA
1. Disparate Treatment Claims
Disparate treatment claims under the ADEA are analyzed under the burden-shifting framework for Title VII dis- parate treatment claims established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1155 (D.C. Cir. 2004); Hall v. Giant Food, Inc., 175 F.3d 1074, 1077 (D.C. Cir. 1999). Under that framework, the plaintiffs have the burden of establishing by a preponderance of the evidence a prima facie case of disparate treatment discrimination. McDonnell Douglas Corp., 411 U.S. at 802. As the Court explained in Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993), “In a disparate treatment case, liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's de- cision.” In other words, “Disparate treatment refers to deliberate discrimination in the terms or conditions of em- ployment....” Munoz v. Orr, 200 F.3d 291, 299 (5th Cir. 2000).
If the plaintiffs establish a prima facie case of disparate treatment, the burden then shifts to the employer to ar-

ticulate a legitimate, nondiscriminatory reason for the employment decision at issue. McDonnell Douglas Corp., 411 U.S. at 802-803. As the Court explained in Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 25455 (1981), the employer “need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.”
If the employer successfully articulates a nondiscriminatory reason for its decision, then the burden shifts back to the plaintiffs to show that the employer's stated reason was a pretext for intentional discrimination. Burdine, 450 U.S. at 255-56.
2. Disparate Impact Claims
To the extent that plaintiffs are alleging disparate impact claims in this case, precedent in this jurisdiction holds that such claims are not cognizable against federal employers. See Silver v. Leavitt, No. 05-0968, 2006 WL 626928, at *13 (D.D.C. Mar. 13, 2006), appeal docketed, No. 06-5104 (D.C. Cir. Apr. 18, 2006), and cases cited therein; but see Breen v. Peters, 474 F. Supp.2d 1, 6-7 (D.D.C. 2007) (denying defendant's Rule 12(b)(1) motion to dismiss plaintiffs' age discrimination claim based on disparate impact against the Secretary of Transportation).
Assuming that such claims are cognizable, disparate impact claims under the ADEA are analyzed differently from claims of disparate treatment. Unlike claims of disparate treatment, a disparate impact claim does not re- quire proof of discriminatory motive. Hazen Paper Co., 507 U.S. at 609. In Smith v. City of Jackson, 544 U.S. 228, 241 (2005), the Court held that, to establish a prima facie case of disparate impact discrimination under the ADEA, plaintiffs must identify a specific employment practice allegedly responsible for any perceived statistical disparities; it is not enough for plaintiffs to simply show a disparate impact, or to point to a general policy that led to such an impact.
The Supreme Court in City of Jackson further held that if a plaintiff in a disparate impact case under the ADEA establishes a prima facie case of discrimination, the employer still would not be liable if the employment de- cision at issue was based on reasonable factors other than age. 544 U.S. at 242-43. The Court explained: Unlike the business necessity test [under Title VII], which asks whether there are other ways for the employer to achieve its goals that do not result in a disparate impact on a protected class, the reasonableness inquiry includes no such requirement.
544 U.S. at 243.
Following City of Jackson, the court in Pippin v. Burlington Resources Oil & Gas Co., 440 F.3d 1186, 1200-1201 (10th Cir. 2006), held that in a disparate impact case under the ADEA: [A]n employee must ultimately persuade the fact finder that the employer's asserted basis for the neutral policy is unreasonable. [Citation to Smith omitted; emphasis in original] The test is not whether there were other more narrowly tailored ways for the employer to achieve its legitimate business goals. [Citation omitted.] Instead, the employee must show that the method selected was unreasonable.
In language very relevant to the case at bar, the court in Pippin went on to conclude that the employer's “determination of which employees have the skills most useful to the company going forward are reasonable cri- teria” and, therefore, constituted reasonable factors other than age. Id. at 1201. To overcome the employer's de- fense of reasonable factors other than age, plaintiffs in an ADEA case must show that the criteria utilized by the

employer were unreasonable. Id. at 1200-01.
IV. ARGUMENT AND AUTHORITIES
A. Employees who applied for and accepted buyouts prior to the DRR RIF were not constructively discharged and have no viable claims.
Most of the class members in this case voluntarily applied for and accepted the buyout, and were not even af- fected by the reduction-in-force because they left the Agency before the FDIC issued specific RIF notices in DRR on June 30, 2005. None of these plaintiffs was constructively discharged, and none of them has any viable claims of age discrimination.
As a threshold matter, a “buyout” is presumed to be voluntary. Terban v. Dep't of Energy, 216 F.3d 1021 (Fed. Cir. 2000). Indeed, the plaintiffs who elected to take the buyout expressly acknowledged on their buyout applic- ation forms that they submitted their applications voluntarily. See, e.g., “STATEMENT OF INTENT TO RE- TIRE WITH A BUYOUT FROM THE FEDERAL DEPOSIT INSURANCE CORPORATION” of Plaintiff Peggy Henderson, dated November 8, 2004 (Ex. 8).
Nevertheless, plaintiffs appear to argue that they were “forced” to take the buyout and retire, and therefore, suffered an adverse employment action by electing these benefits. In almost any other case, plaintiffs making such an argument would allege that they were constructively discharged. But, in their reply brief in support of their motion for class certification, plaintiffs expressly disavowed that they were alleging that they were constructively discharged in this case: “Plaintiffs are not pursuing a constructive discharge claim.” Plaintiff's Reply Brief in Support of Motion for Class Certification, filed June 15, 2006 (ECF Docket # 17), at 10. In any event, plaintiffs cannot establish that they were constructively discharged in this case.
The constructive discharge doctrine is “rooted in the notion that the discharge is the product of intolerable con- ditions.” Rowell v. BellSouth Corp., 433 F.3d 794, 803 (11th Cir. 2005); see also Terban, 216 F.3d at 1024. As the court explained in Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 65 (5th Cir. 1980), a plaintiff asserting constructive discharge must show that the employer deliberately made the plaintiff's working conditions so in- tolerable that the plaintiff was forced into an involuntary resignation. In Bourque, the court found that while the plaintiff's resignation resulted directly from her disappointment in not receiving a raise due to discrimination, that was not sufficient to support a finding of constructive discharge.
In the case at bar, the FDIC offered a buyout and early retirement benefits to its employees as one means to re- duce excess staff. As the court observed in Bodnar v. Synpol, Inc., 843 F.2d 190, 192-193 (5th Cir. 1988), an employer's offer of an early retirement plan does not create even a prima facie case of age discrimination, but rather, constitutes what may be “the fairest alternative available” to the employer and employees.
In a reduction-in-force situation, some employees will necessarily be released from their positions, and some of those employees may be assigned to other positions (possibly at a lower grade) or released from the federal ser- vice. But the fact that these possibilities exist does not make an offer of separation incentives and/or early retire- ment coercive. See Terban, 216 F.3d at 1023 (“‘[T]he mere fact than an employee is faced with an inherently unpleasant situation or that his choices are limited to unpleasant alternatives does not make his decision involun- tary.”’ [quoting the Merit System Protection Board's order in that case]); Bodnar, 843 F.2d at 192-193.
Thus, an employee who accepts a severance package rather than wait to see if he can remain employed cannot

later claim that he was constructively discharged. Rowell, 433 F.3d at 806. An offer of these types of benefits is coercive only if the employee shows that the employer used a “stick,” or “the reduction or withholding of bene- fits to which the employee was entitled” to force an employee to accept a buyout or offer of early retirement. Mullins v. Pfizer, Inc., 828 F. Supp. 139, 145 (D. Conn. 1993), aff'd (as to ADEA claim), 23 F.3d 663 (2d Cir. 1994), quoting Mitchell v. Mobil Oil Corp., 896 F.2d 463, 469 n. 2 (10th Cir.), cert. denied, 498 U.S. 898 (1990) . The employee must show that he was placed in the position of “quit or be fired,” but an employee cannot estab- lish this kind of coercion merely by showing that one of the possible outcomes would have been losing his job. See Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 480 (1st Cir. 1993) (constructive discharge occurs “when the of- fer presented was, at rock bottom, a choice between early retirement with benefits or discharge without benefits, or, more starkly still, an impermissible take-it-or-leave-it choice between retirement or discharge.”) This does not occur where all employees face a possible reduction-in-force and all employees are offered a voluntary sep- aration incentive. Rowell, 433 F.3d at 805.
Similarly, proof that employees were told that they would face a reduction-in-force if an insufficient number of them accepted the buyout is not enough to show coercion. In Vega, 3 F.3d 476, the court rejected the claims of two employees who accepted a voluntary separation incentive but later claimed they were constructively discharged due to age discrimination. The court found that employees were not forced to accept the buyout, but had a meaningful choice, because the employer told them that a sufficient number of buyout acceptances would ob- viate the need for a RIF, did not indicate which employees would be separated if that step was necessary, and did not threaten to treat harshly anyone selected for separation through a RIF. Vega, 3 F.3d at 480-481; see also Rowell, 433 F.3d at 805, discussing Vega. In this case, because so many vacant positions were filled during the RIF, and because the RIF was conducted in accordance with regulations of the United States Office of Personnel Management (which afforded displaced employees “bump” and “retreat” rights) and the applicable negotiated RIF Policy, the FDIC could not possibly have known when the buyout was offered which employees would be separated by RIF.
As discussed above, FDIC's buyout and early retirement programs were completely voluntary. Both were offered to all employees at the FDIC who occupied surplus positions, not just those in DRR. The fact that FDIC offered these voluntary incentives does not support any claim of constructive discharge. See Rowell, 433 F.3d at 804 (no employee may claim constructive discharge where all employees are subject to the same working condi- tions).
Further, as noted, the FDIC gave employees from November 2, 2004, until May 2, 2005 to decide whether to ap- ply for the buyout, and once an employee applied for it he could change his mind and withdraw his application at any time until May 2, 2005. These facts are totally inconsistent with plaintiffs' theory that they were “forced” to accept buyouts. See Morgan v. A.G. Edwards & Sons, Inc., 486 F.3d 1034, 1040-41 (8th Cir. 2007) (voluntary separation incentive program was truly “voluntary” where employees had 45 days to consider the offer, could revoke it within 7 days after accepting it, and would continue to receive the benefits of their employment if they did not accept it); Terban, 216 F.3d at 1024 (“the most probative evidence of involuntariness will usually be evidence in which there is a relatively short period of time between the employer's alleged coercive act and the employee's retirement”). Moreover, as discussed above, the fact that the FDIC truthfully told DRR employees that it was using these programs to attempt to avoid a RIF did not make them coercive. Vega, 3 F.3d at 480; Rowell, 433 F.3d at 805; and Morgan, 486 F.3d at 1040-1041.
B. Plaintiffs who suffered adverse employment actions as a result of the RIF cannot establish aprimafacie case of age discrimination.

1. Age was not a factor in the design or implementation of the RIF.

The FDIC is entitled to summary judgment on both the disparate treatment and the disparate impact claims in this case. While Plaintiffs have alleged that “[t]he Defendant chose to conduct the 2005 RIF harming the older employees in DRR in whole or in substantial part because DRR's work force was significantly older than the work force of its other Divisions” (Am. Compl., ¶ 89), the uncontroverted evidence shows that age was not a factor in the FDIC's decisions to reorganize and downsize DRR or in the design or implementation of the RIF. The record is very clear that, as the health of the bank and thrift industry improved, the workload of the FDIC, especially the liquidation work of DRR, dramatically declined. As the workload of DRR continued to decline through 2005, the FDIC to determine that it needed to reduce staff and reorganize its DRR to accomplish its work more efficiently. In short, the FDIC's determinations of the “skills most useful” to DRR based on its busi- ness needs were based on reasonable factors other than age. Pippin, 440 F.3d at 1201.

Further, because the FDIC followed US OPM regulations in implementing the RIF, the Agency could not pos- sibly have used age as a factor in determining which employees would be separated as a result of the RIF. As noted, under US OPM regulations governing reductions in force of federal agencies, employees with higher “retention standing” may take the positions of others at lower grades and in different jobs through a process known as “reassignment,” which includes “bumping,” “retreating,” and other reassignment rights provided in applicable regulations. See 5 C.F.R. Part 351.

Under 5 C.F.R. § 351.501, “retention standing” is determined in accordance with tenure of employment and vet- eran preference, not age. As the Merit Systems Protection Board explained in Mallory v. Dep't of the Army, 2 M.S.P.R. 582, 584-585 (1980), “retention standing by groups” refers to the requirement that agencies classify competing employees by their retention standing in groups and subgroups on the basis of tenure of employment and veteran preference. See also, Kizer v. Dep't of Navy, 87 M.S.P.R. 249, 252 (2000) (“retention standing” refers to tenure group and veteran preference under 5 C.F.R. § 351.501). Because it is undisputed that the FDIC followed US OPM regulations in conducting the RIF in DRR, the FDIC is entitled to summary judgment on plaintiffs' claim that age was a factor in the RIF.[FN17] See Pippin, 440 F.3d at 1196-97 (affirming summary judgment for private employer where termination of employment was in accord with RIF criteria).

FN17. Plaintiffs' disparate impact claims must fail also because plaintiffs have never identified a specif- ic employment practice or policy that caused any disparate impact on employees age 50 and older.
2. Plaintiffs' proffered disparate impact evidence fails as a matter of law.
Assuming arguendo that disparate impact claims against federal agencies are cognizable, [FN18] Plaintiffs' sum-

mary judgment evidence of impact does not meet the structural or statistical standards applicable to such claims.

Plaintiffs' disparate impact claim is based solely on the analysis of Dr. Seberhagen who, like Defendant's expert (Dr.

Jeanneret), is an I/O psychologist. Dr. Seberhagen's only analysis purports to study the “impact” of employ- ee

departures from DRR during the year of the RIF, regardless of whether such departures were involuntary ter-

minations, voluntary retirements or voluntary resignations in order to accept the buyout incentive.

[FN19] This

form of analysis is totally inadequate to create a prima facie inference of disparate impact under applicable Supreme Court authority.

FN18. See discussion above at section III.B.2.

FN19. See Rebuttal Report of Lance Seberhagen, Ph.D. (“Seberhagen Rebuttal Report”), attached as Exhibit 28-2.

In Smith v. City of Jackson, 544 U.S. 228 (2005), the Supreme Court created a disparate impact cause of action uniquely formulated for age discrimination claims. The stringent prerequisites for a prima facie case of disparate impact include the plaintiff's burden of “isolating and identifying the specific employment practices that are al- legedly responsible for any observed statistical disparities.” Id. at 241 (emphasis in the original).
Here, Plaintiffs' expert has not isolated a particular practice and demonstrated its impact, as required by City of Jackson. Rather, Plaintiffs' expert has conflated voluntary and involuntary departures as if they were the same for statistical purposes. Dr. Seberhagen assumed, in effect, that an employee who applied for the buyout incent- ive or elected to retire before the RIF ever took place should be considered statistically identical to an employee involuntarily terminated in the RIF itself. As Dr. Jeanneret notes, whatever else may be said of employees in those disparate circumstances, it is not appropriate to compare them statistically. Jeanneret Reply Report (Ex. 27-1) at 911.[FN20]
FN20. way of looking at this is the formulation of the “null hypothesis.” Jeanneret Reply Report (Ex. 27-1) at 7. Dr. Seberhagen's syllogism was that if employees over 50 left DRR in greater percentages than those under 50, then that must prove disparate impact. But one would expect employees over 50 in any workforce to depart in greater proportion in the absence of discrimination; therefore, Dr. Seberha- gen's analysis proves nothing.
Defendant anticipates that Plaintiffs will argue that some of the retirements and acceptances of buyouts were not voluntary because the employees knew that a substantial RIF was impending. As demonstrated in section IV.A above, this is inconsistent with applicable law on constructive discharge. But even if the law permitted compar- ing these obviously different situations, it would still not be appropriate statistical science to do so. To possess any validity, a statistical analysis must compare populations that are similarly situated except for the characteristic under study.[FN21] It is obvious that even under Plaintiffs' theory, some of the retirements and buyout applications had to have been totally voluntary, and it is equally obvious that not all of the employee choices to re- tire or apply for the buyout are the same thing as being involuntarily terminated. Plaintiffs' expert takes no stat- istical account of these indisputable facts; instead, he assumes them away. He justifies this assumption only by stating that he was instructed to make it by Plaintiffs' counsel. Seberhagen Dep. (Ex. 33) at 37-47, 91.
FN21. See Jeanneret Reply Report (Ex. 27-1) at 9-11; see also, e.g., Furr v. Seagate Tech., Inc., 82 F.3d 980, 987 (10th Cir. 1996) (“plaintiff's statistical evidence must focus on ... comparable individuals.”) (citations omitted, emphasis in the original).
It is only through this statistical sleight of hand that Plaintiffs are able to conjure up any “impact,” and even this is borderline. Compare Seberhagen Rebuttal Report (Ex. 28-2), p. 10, at Table 11 (finding an alleged difference of 2.67 standard deviations) with id. at p. 5, ¶ 13 (where Dr. Seberhagen notes that “... courts sometimes require a difference of two or three standard deviations to indicate adverse discriminatory impact.”).[FN22] And even putting aside the disconnects between Plaintiffs' expert's statistical analysis and principles of disparate impact age claims, there is nothing to connect Dr. Seberhagen's alleged impact with any specific policy or practice. City of Jackson, 544 U.S. at 241.
FN22. Note also that this difference is further called into question by Dr. Seberhagen's use of an arbit- rary age variable; that is, some of the decisions for age 50 and older departures actually occurred when those employees were 49. Seberhagen Dep. (Ex. 33) at 20-21. In a population where many employees are in their late 40s or early 50s, the effect of this may be substantial (see Jeanneret Reply Report (Ex.

27-1) at 9.
On top of all this, Dr. Seberhagen chooses to ignore the data demonstrating that age was simply not a negative factor in the RIF. See section IV.C below. Most specifically regarding the disparate impact claim, while Plaintiffs did not isolate a specific practice and study its effect, Defendant did so and has shown without contra- vention that data from the actual RIF terminations were statistically significant in favor of older employees (Jeanneret Reply Report (Ex. 27-1) at 14-15 and Table 5.
Finally, even if Plaintiffs had fulfilled their various disparate impact burdens under City of Jackson, their claim would still be insupportable because the practice they are attacking cannot be shown to be irrational. In contrast to race or sex discrimination cases brought under Title VII, a defendant in an age discrimination disparate im- pact case need not show that the practice at issue is a “business necessity,” but only that it is reasonable. 544 U.S. at 242-43. Since the RIF was conducted in accordance with procedures promulgated by the U.S. Office of Personnel Management, and since the necessity for the RIF was based on and correlated with activity in the banking industry, there can be no claim of unreasonableness as that term is used in City of Jackson. Id.
C. The statistical evidence is antithetical to Plaintiffs' allegations of class-wide age discrimination.
As a threshold matter and as discussed in more detail below, in a case alleging age discrimination incident to a RIF, there must be a showing of a significant disparity in the relevant workforce population before and after the RIF.[FN23] In many cases, the effect of a RIF may raise subtle questions of causation or statistical inference; however, in the case at bar, the summary judgment evidence is straightforward and compelling.
FN23. Put another way, a necessary, but not a sufficient, condition for liability is some measurable ef- fect on the class of older employees; otherwise there is no potential universe of discourse to even begin formulating a theory of liability.
It is uncontroverted that the population of DRR was dynamically reduced in a short period of time from over 500 to less than 240 employees. The common sense - and as shown below the legally critical - questions the Court may seek to answer under these circumstances include: (1) What happened to this population in terms of its age? (2) What happened to this population in terms of the representation of protected employees? (3) What was the direct and demonstrable effect of the employer's RIF decisions?
As to the first question, it might be said that an employer, bent upon age discrimination and with the opportunity presented by reducing a large division by more than half, would surely end up with a younger population. That did not happen here. The average age of the 200 plus employees remaining in DRR was statistically the same as that of the approximately 500 employees in DRR before the RIF.[FN24] This result is remarkable in light of Plaintiffs' allegations, and it was achieved despite many normal retirements, early retirements and acceptances of buyouts by older employees.
FN24. See Jeanneret Report (Ex. 27) at p. 18, and Jeanneret Reply Report (Ex. 27-1) at pp. 5 and 8. Further,
in terms of the second question above, this result was not achieved in some artificial way. The chart shown on the following page depicts the percentage representation of older (as defined by Plaintiffs) versus younger employees for the period before, during and after the RIF.[FN25] The percentages of employees 50 or older in DRR consistently increase while the representation of employees under 50 continually declines.

FN25. This chart is found in Jeanneret Reply Report (Ex. 27-1) at Exhibit 1. It is based on data con- tained in Dr. Jeanneret's original report (Ex. 27) at p. 17.
Under these circumstances, to claim, as Plaintiffs do, that the same managers who presided over these demographic results were actuated by an animus against older employees approaches the absurd. [FN26]
FN26. Consider an analogous hypothetical situation involving allegations of, say, race discrimination in the context of a RIF. If the employer's large workforce had been 59% African-American before the RIF and was 61% African-American after the RIF (and where the RIF was quite substantial), an hypothesis of class-wide race discrimination would be untenable.
Age Distribution by Year of DRR Permanent Employees (Years 2000 - 2005)
TABLE Finally, as to question 3 above, the actual RIF selections were demonstrably nondiscriminatory. Dr. Jeanneret compared the ages and percentages of employees actually separated by RIF with the pool from which they were selected. [FN27] This time there was a statistically significant difference, but it was in favor of the older employees.[FN28]
FN27. See Jeanneret Reply Report (Ex. 27-1) at Table 5 and pp. 13-15.
FN28. In other words, the disparity in favor of employees 50 and older could not be attributed to chance. While this does not mean that there was necessarily an intent to favor older employees, that was the direct result of the actual RIF selections.
1. The legal significance of average age before and after the RIF.
Several courts have held that there can be no finding of discrimination where there were only slight differences in the average age of employees before and after an involuntary downsizing or reduction-in-force. In Bender v. Hecht's Dep't Stores, 455 F.3d 612 (6th Cir. 2006), cert, denied, 127 S. Ct. 2100 (2007), the trial court granted summary judgment for the defendant in an age discrimination case arising out of an involuntary downsizing. The Sixth Circuit upheld the district court, finding that the slight difference in average ages in positions eliminated was not significant, and did not counter the obvious business reasons for the position eliminations. See also Stid- ham v. Minnesota Mining and Mfg, Inc., 399 F.3d 935, 938 (8th Cir. 2005) (half-year decrease in the average age of the workforce after reduction-in-force is not statistically significant); Hanebrink v. Brown Shoe Co., 110 F.3d 644, 647 (8th Cir. 1997) (finding a half a year decline in the average age of the employee group was insuf- ficient to raise an inference of age discrimination).
In the instant case, the average age of DRR employees before the RIF (as of 11/1/2004) was 51.96 years; the av- erage age after the RIF (as of 9/17/2005) was 51.81. Bodian Decl. (Ex. 23) at Table D. This tiny difference is not statistically significant [FN29] and is inconsistent with the Plaintiffs' allegations of age discrimination. In
fact, in this case, the average age of all DRR employees actually increased during the period from 2000 through 2005, from 49.84 years on 12/31/2000 to 52.10 years on 12/31/2005. Id. at ¶ 9 and Table D.
FN29. See Jeanneret Reply Report (Ex. 27-1) at 5. Compare Ridenour v. Lawson Co., 791 F.2d 52, 57 (6th Cir. 1986) (no age discrimination in layoffs as a matter of law where workforce average age did not “decrease as would be expected if age discrimination were a factor”) with Mastie v. Great Lakes Steel Corp., 424 F. Supp. 1299, 1319-20 (E.D. Mich. 1976) (finding decrease of only 1.29 years in av- erage age of retained employees during a RIF “does not establish even a prima facie case of age dis-

crimination”).
Dr. Jeanneret, an industrial organizational (I/O) psychologist, studied the demographics prepared by Dr. Bodian from the PERHIS database maintained by the FDIC's Division of Administration (and produced to Plaintiffs dur- ing discovery). Dr. Jeanneret noted that “under Plaintiff's theory of age discrimination, one would expect the DRR permanent workforce to become younger over time. However that reduction in age did not occur.” Jean- neret Report (Ex. 27) at p. 6, Conclusion #4. He found that the fact that the average age of employees remained virtually the same before and after the RIF “clearly demonstrates that there was not a systemic age discrimina- tion practice at the FDIC.” Id.
2. The legal significance of percentage representation of older employees before and after the RIF.
Federal courts have held that there can be no inference of age discrimination where there was only a slight de- cline in the protected class after a reduction-in force. See EEOC vs. McDonnell Douglas Corp., 191 F. 3d 948, 952 (8th Cir. 1999) (finding change in percentage of workforce fifty-five years and older from 14.7 % to 13.6% is insignificant and does not support inference of age discrimination) [FN30] Stidham at 399 F.3d 938 (a 4% de-
cline in the work force over age forty after reduction-in-force not statistically significant); see also Smith v. Farah Mfg. Co., 650 F.2d 64, 66 (5th Cir. 1981) (affirming dismissal of ADEA claims where the percentages of persons terminated during a RIF “corresponded closely to the age distribution in the salaried employee class”).
FN30. The Court of Appeals, in affirming summary judgment for the employer, stated that “an import- ant statistic to consider in the RIF context is the difference in the percentage of older employees in the workforce before and after the RIF.” Id. at 952.
This principle is applicable, a fortiori, to the instant case, because the percentage of employees in DRR over age 50 actually increased after the RIF.[FN31] See Holley v. Sanyo Mfg., Inc., 771 F. 2d 1161(8th Cir. 1985) (where percentage of workers in protected class increased after layoff, there is no statistical evidence that protected employees were discriminated against during reduction-in-force). In fact, during the time period 2000 - 2005 (including the RIF), the percentage of DRR employees age 50 and over also increased from 48.4% to 61.3%. Jeanneret Report (Ex. 27) at p. 6, Conclusion #6, and p. 17; Bodian Decl. (Ex. 23) at ¶ 10 and Table E.
FN31. See Age Distribution chart above at p. 34 and Bodian Decl. (Ex. 23) at ¶ 6 and Table E. 3. The age distribution of employees involuntarily separated during the RIF was significantly younger
than the class.
An analysis of those DRR employees who were separated reveals that 53 DRR employees were involuntarily separated, and that 46 of those 53 received severance pay. Bodian Decl. (Ex. 23) at ¶ 7. In addition, 7 employees retired in lieu of separation and 3 employees resigned after receiving a specific RIF notice. The average age of those 63 separated employees was 48.28 years. Id. at ¶ 8. As noted by Dr. Jeanneret, the involuntarily terminated group was not only younger, it was statistically significantly younger, than the rest of DRR. Jeanneret Reply Re- port (Ex. 27-1) at pp. 14-15, 16 and Table 5. This is entirely inconsistent with Plaintiffs' allegations of age dis- crimination and supports Defendant's case.
4. The statistics support the FDIC's argument that the health of the financial industry and accompanying reduced workload were the business reasons for the RIF in DRR.
Dr. Jeanneret calculated the correlation between the number of FDIC insured institutions and the number of FD-

IC/RTC employees. He found a very high correlation (.97 where 1.0 is perfect linearity) - that is, as the number of FDIC insured institutions declined, so too did the number of FDIC employees. See Jeanneret Report (Ex. 27) at p. 6, Conclusion #2, pp. 9-10 and Exhibit 2, p. 12. Dr. Jeanneret also studied the relationship between the value of assets the FDIC held in liquidation from failed banks and the number of DRR employees, and found an almost perfect correlation (.99 where 1.0 is perfect linearity). Id. at p. 6, Conclusion #2, pp. 9-10 and Exhibit 3, p. 13. His findings support FDIC's contention that the DRR RIF was conducted for legitimate business reasons.
D. Even assuming that Plaintiffs were able to establish a prima facie case of age discrimination, the Agency has articulated legitimate, non-discriminatory reasons, as well as reasonable factors other than
age, for its employment decisions.
As explained above, the Agency properly invoked RIF procedures based on a lack of work and the reorganiza- tion of DRR.[FN32] Thereafter, the Agency properly implemented the RIF procedures, complying with all substantive and procedural requirements. [FN33] The competitive areas that the FDIC drew for DRR were appropri-
ate because they were based on the standards set forth in the governing regulations, and the competitive levels were properly drawn because they were based upon the regulations and the position descriptions of record. The FDIC correctly defined each employee's[FN34] competitive level, correctly determined displaced employees' assignment rights (e.g., their “bump” and “retreat” rights)[FN35] and complied with the regulations and negotiated procedures in determining reassignments to certain vacant positions.[FN36] Accordingly, the Agency has articulated legitimate, non-discriminatory reasons, as well as reasonable factors other than age, for all of its employ- ment decisions affecting DRR employees in this case.
FN32. See 5 C.F.R. § 351.201(a)(2).
FN33. E.g., 5 C.F.R.§ 351.801(a) (written RIF notice at least 60 days prior to the RIF effective date).
FN34. See 5 C.F.R. § 351.402 (competitive areas), 5 C.F.R. §351.403 (competitive levels).
FN35. See 5 C.F.R. § 351.701(b) (“bump”), 5 C.F.R. § 351.701(c) ( “retreat”).
FN36. See 5 C.F.R. § 351.701; see also Mergen Dep. (Ex. 31) at 31-33. V. CONCLUSION
Accordingly, for the reasons set forth above, defendant Sheila C. Bair respectfully requests that the Court grant this Motion for Summary Judgment in its entirety, and dismiss this matter with prejudice. A proposed order granting the relief requested is attached.
Dated: February 25, 2008
Barbara ALIOTTA, et al, Plaintiffs, v. Sheila C. BAIR, Chairman, Federal Deposit Insurance Corporation, Defendant. 2008 WL 2777692 (D.D.C. ) (Trial Motion, Memorandum and Affidavit )
END OF DOCUMENT

 
 United States District Court, District of Columbia. Barbara ALIOTTA, et al and Others similarly situated, Plaintiffs, v. Sheila BAIR, Chairman, Federal Deposit Insurance Corporation, Defendant.
No. 105CV02325. February 25, 2008.
Class Action
Plaintiffs' Memorandum In Support of Its Motion for Partial Summary Judgment On Liability.
David L. Rose, Joshua N. Rose, Dotie Joseph, Rose & Rose, P.C., 1320 19th Street, NW, Suite 601, Washing- ton, D.C. 20036, (202) 331-8555, (202) 331-0996 Fax, Attorneys for Plaintiffs.
TABLE OF CONTENTS

Table of Contents ... i Table of Authorities ... ii The Basic Undisputed Facts ... 1 Argument ... 4 Conclusion ... 9

TABLE OF AUTHORITIES

STATUTES AND REGULATIONS Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq ... 4, 5, 6, 7, 8 29 U.S.C. § 626 (b)(4) ... 4 29 U.S.C.§ 626 (f)(1) ... 4, 5 29 C.F.R. § 22(d)(3) and 22(f)(iiiXB) and (C) and (iv)(3) ... 6 29 C.F.R. § 1625.22(d)(3) ... 6 29 C.F.R. § 1625.7 ... 4, 5 29 C.F.R. § 1625.7(d) and (e) ... 5, 7

CASES
Cova v. Coca-Cola Bottling Co. of St. Louis, Inc., 574 F.2d 958, 959-60 (8th Cir. 1978) ... 8
FTC v. Morton Salt Co., 334 U.S. 37, 44-45 (1948) ... 4
Laugseen v. Anaconda Co., 510 F.2d 307, 315 (6th Cir. 1975) ... 8
Meacham et al v. Knolls Atomic Power Lab, 461 F.3d 134 (C.A. 2 (N.Y.) 2006) ... 8
Pippin v. Burlington Res. Oil & Gas Co., 440 F.3d 1186 (10th Cir. 2006) ... 8
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (U.S. 2000) ... 7
Shaffer ex rel. Schaffer v. Weast 546 49, 57 (2005) ... 4
Smith et al v. City of Jackson, 544 U.S. 228, 125 S Ct. 1536, 1544 (2005) ... 7
Western Air Lines, Ind. v. Criswell, 472 U.S. 400, 416-417 & n. 24 (1985) ... 4, 5
The plaintiffs are 52 current and former employees of the Defendant FDIC. were in 2005 over the age of 50. This Court in its Memorandum Opinion of July 25, 2006 granted the plaintiffs' motion for class certification. Dockets 19 and 20. Plaintiffs and the class allege that FDIC's program “to trim its workforce” in 2005 Memo. Op. at 1. Donald Powell, who was Chairman and CEO of Defendant though all of 2004 and almost all of 2005 testified that he told groups of its employees “...on occasions I want young people around me...they have all the innovative ideas...I'm sure on occasions I have talked about the value of young people in an organization ...I would do that often.” Dep. of Powell at 13-14.
THE BASIC UNDISPUTED FACTS
Pursuant to that 2005 Buy Out and RIF program the FDIC terminated its employment of 588 career employees, of whom 370 were over the age of 50, or 19.7% of its 1,509 oldest career employees; but it terminated only 218 or 7.7 %, of its younger employees. Table 12, Seberhagen Declaration of Sept. 26, 2007. Similarly it terminated the employment of 178 employees of the FDIC in DRR, of whom 132 were 50 or older, and only 46 of whom were under 50. Tables 10 and 11.
On Sept. 2, 2005, the FDIC announced a program aimed at recruiting candidates for employment on college campuses and elsewhere, although its involuntary terminations of older employees was not effective until Sept. 3, 2005.
The FDIC hired in 2005, 214 new employees, of whom 93.9% were under the age of 40, and only 6.3% were 50 or older. It hired 59 new employees into Grade 7 and an additional 17 into Grade 9. The FDIC hired 62 new em- ployees into Corporate University, which was created in 2005; and we believe that most the 59 as Grade 7 and some at grade 9 became “students” or “interns” at Corporate U., and thus began their four or three year enroll- ment in the program to make them eligible to take the examination for Financial Institution Examiner.
Three aspect of the downsizing program of 2005 indicate that it was intended to result in the age discriminatory results shown above.

In 2005, the FDIC began its Corporate Employee recruiting and hiring program which it began to implement in 2005. The Corporate Employee program was designed to recruit on college campuses and elsewhere for candid- ates to train and obtain experience for four years in order to become examiners of banks and savings and loan financial institutions. If the persons employed under that Program remain employed for four and pass an exam- ination to become certified examiners and can certify the soundness of the practices of the examined institution.
Under that program the FDIC hired at least 56 new non-career employees as as Financial Institution Specialists, grades 7 and 9. Of those new employees, only 6 were over age 50, and 37 were under the age of 40.
The DRR was the oldest Division in terms of the age and service of its employees. The FDIC 2005 Buy out And RIF program directed that Division to reduce its work force by 53 or 54%from 503 to 240 permanent employees. It did so terminating the employment of 179 such employees and an additional 59 employees from DRR primar- ily to DSC. Under that program the FDIC terminated the employment of 114 employees in DIT, org. 51, which had a close to 50% of its employees age 50 or above. Table 20, Org. 51. In the Division of Administration the FDIC employed about 408 employees of whom 46%, or 408 were over the age of 50, and its work force was re- duced by 67 employees. Table 3 Seberhagen Report.
In addition to the 135 employees of the FDIC in DRR whose employment was terminated effective on or before May 14, 2005, it terminated effective September 3, 2005, the employment of another 27 employees over the age of 50 whose employment by retirement in lieu of involuntary action.
Further at least 76 employees from DRR transferred to DSC or another Division, of whom at least 46 were above the age of 50. The only positions open to bid were Grade 12 and below. Accordingly, many of the em- ployees, including Greg Haag, who held G 13 or 14 positions were obliged to accept a reduction in grade. Al- though their annual salary was not immediately reduced, they would be held at that salary for years to come if they continue their employment.
ARGUMENT
The Equal employment Opportunity Commission is by the terms of E. O. 12016 (1978) granted lead authority over the federal departments and agencies, and the heads of those agencies are obliged to accept the regulations and rules and interpretations promulgated by the Commission. E O. 12016, at Paras. 4 and 5.
Under the ADEA, the “reasonable factor other than age' is an exception to the Act, 29 U. S. C. 626(b)(4); 29 C. F. R. 1625.7.
The burden of proving justification or exemption under a special exception to the prohibitions of a statute nor- mally rests on the party who claims its benefits. FTC v. Morton Salt Co., 334 U. S. 37, 44-45 (1948). Accord: Shaffer ex rel. Schaffer v.Weast, 546 49, 57 (2005).
Congress placed the “reasonable factor other than age exception” in 29 U. S. C. 626(f)(l), together with the “bone fide occupational qualification” or BFOQ, exception. Id. The BFOQ exception to the prohibition on age discrimination in the ADEA is an affirmative defense to the employer who claims its benefits. Western Air Lines, Ind., 472 U. S. 400, 416-417& n. 24 (1985). In that case, the Court noted that an EEOC regulation so provided, and was consistent with the legislative history of the ADEA. Id
The normal construction of such placement is that Congress intended the same burden for the “reasonable factor

other than age” exception. See cases cited above. In any event, the EEOC regulation should control, particularly with respect to Federal agencies, in light of E. O. 12016.
In this case, Defendant has not offered evidence to show a defense based upon “a reasonable factor other than age” Sec. 4(f)(1) of ADEA, 29 U. S. C. 626(f)(1); 29 C. F.R. 1625.7.
The Regulation of the Commission states: “When the exception of a ‘reasonable factor other than age is raised...the employer bears the burden of showing that the ‘reasonable factor other than age’ exists. 29 C. F.R. 1625.7(e).Yet the burden is on the employer to do so.
Under Executive Order 12106 (1978) the EEOC is ‘responsible for directing and furthering implementation of the Policy ....to provide equal opportunity in Federal employment for all employees...and to prohibit discrimina- tion in employment because of ....age.” See Sec. 3. That Order also directs the Commission “to issue such ...regulations...and instructions....”, and states that “The head of each department or agency shall comply with the ... regulations ...and instructions...issued by” the Commission. E. O. 2106 at Sec. 3, 4, and 5. See also, Reorganization Plan No. 1 of 1978, 43 FR 19807.
The ADEA Regulations of the EEOC provide that when an employment practice by an employer causes an “adverse impact” against “individuals within the protected age group, it can only be justified as a business ne- cessity.”
The Regulations also recognizes that the ADEA makes reference to “exit incentive” program that offers addi- tional consideration in exchange for their decision to resign or retire voluntarily, and that such program require valid waivers under the ADEA. 29 C. F. R. 1625.22(d)(iii)H. In addition there is the class of employees hired by an involuntary program. The Regulations provide that in identifying the scope of a class or organizational unit involved.
In this case, the decisional unit in this case is the FDIC because the incentive for a buyout was offered to all or almost all of the employees of the FDIC were offered the incentive to leave the employment of the agency. 29 C. F. R. 1625.22(d)(3). Similarly, all of the decisions made by the FDIC were made at its headquarters in the Dis- trict of Columbia, so that the 2005 program had only one decisional unit. 29 C.F. R. 22(d)(3) and 22(f)(iii)(B) and (C) and (iv) (3).
Whether an employer had a discriminatory intent is one for the finder of fact. Reeves v. Sanderson Plumbing Products. Inc., 530 U. S. 133 (2000). However, plaintiffs no longer need to prove discriminatory intent in order to obtain relief. Smith v. City of Jackson, 544 U. S. 222 (2005),
Under the ADEA regulations of the Commission if an employment practice has an discriminatory impact against individuals within the protected age group, it can only be justified as business necessity...the employer bears the burden of showing that the ‘reasonable factor other than age...exists factually...” 29 C. F. R. 1625.7(d), and (e).
In this case, the Defendant Agency did not prove the existence of any such factor, but contended itself with a vague statement in the Answer that it had good business reasons for carrying out the program.
The Regulations of the EEOC expressly provide that “when,,,such a practice has an adverse impact on individu- als within the protected age group, it can only be justified as a business necessity.” 29 C.F. R. 1625.7(d); Smith et al. v. City of Jackson, et al., 544 U. S. 228,125 S Ct. 1536, 1544 (2005). As the Court stated in fn 11, Con-

gress in the EPA barred recovery if a pay differential is based upon “any other factor” other than sex. The Court noted “the fact that Congress provided that employees [read employers ?] could use only reasonable factors in defending a suit under the ADEA is therefore instructive.
See also, 1625.(e) (“When the exception of a ‘reasonable factor other than age’ is raised against an individual claim of discriminatory treatment, the employer bears the burden of showing that the ‘reasonable factor other than age exists...factually.”'See Brief for the U.S. as Amicus in S. Ct. No 06-1505 Meacham et al v. Knolls Atomic Power Lab., 461 F.3d 134 (C.A.2 (N.Y.) 2006) at 17-18; see also, e.g., Pippin v. Burlington Res. Oil & Gas Co., 440 F.3d 1186 (10th Cir. 2006); Laugseen v. Anaconda Co., 510 F.2d 307, 315 (6th Cir. 1975) (burden of persuasion on an employer in a disparate impact case); Cova v. Coca-Cola Bottling Co. of St. Louis, Inc., 574 F.2d 958, 959-60 (8th Cir. 1978) (employers bears the burden of proving an RFOA defense in a disparate treat- ment case); but see contra, Meacham, supra.
The Supreme Court granted review of that decision on the Petition of the plaintiffs for summary judgment in S. Ct. No. 1505, scheduled fo oral argument on April 23, 2008. The Court granted review of the question of wheth- er the employer or employee had the burden of proof under the ADEA.
The employer in that case is however not a Federal Department or Agency, so that the Regulation of the EEOC is not binding on the employer, as it is in this case.
CONCLUSION
For the forgoing reasons, this court should grant this motion of the Plaintiffs for summary judgment.
Dated: February 25, 2008
Barbara ALIOTTA, et al and Others similarly situated, Plaintiffs, v. Sheila BAIR, Chairman, Federal Deposit Insurance Corporation, Defendant. 2008 WL 2777693 (D.D.C. ) (Trial Motion, Memorandum and Affidavit )
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For Opinion See 623 F.Supp.2d 73 , 576 F.Supp.2d 113 , 237 F.R.D. 4
United States District Court, District of Columbia. Barbara ALIOTTA, et al, Plaitiffs, v.
Sheila C. BAIR, Chairman, Federal Deposit Insurance Coporation, Defendant. No. 105CV02325. March 7, 2008.
Defendant's Memorandum in Opposition to Plaintiffs' Motion for Partial Summary Judgment On the Question of Liability
William S. Jones, Georgia Bar No. 404288, Counsel, Legal Division, Federal Deposit Insurance Corporation, 3501 N. Fairfax Drive (VS-E6006), Arlington, VA 22226, (703) 562-2362, (703) 562-2482 (Fax).Stephen J. Kessler, D.C. Bar No. 382427, Counsel, Legal Division, Federal Deposit Insurance Corporation.3501 N. Fairfax Drive (VS-E6014), Arlington, VA 22226, (703) 562-2311, (703) 562-2482 (Fax), Attorneys for Defendant. I. INTRODUCTION
Due to a declining workload, the Federal Deposit Insurance Corporation (“FDIC” or “Agency”) conducted a reduction-in-force (“RIF”) in 2005 within its Division of Resolutions and Receiverships (“DRR”), in accordance with OPM regulations found at Part 351 of Title 5, Code of Federal Regulations. Plaintiffs filed this case as a class action in December of 2005, alleging that the Agency's design and implementation of the RIF violated the Age Discrimination in Employment Act (ADEA), , and harmed DRR employees age 50 and older.[FN1]
FN1. Plaintiffs filed an amended complaint on February 8, 2006, which joined additional named plaintiffs. This is a non-jury case. See Lehman v. Nakshian, 453 U.S. 156 (1981). The Court granted Plaintiffs' motion for class certification on July 25, 2006, concluding that the case may proceed on behalf of a class defined as:
Former or present employees of FDIC's Division of Resolution and Receiverships who were born on a date on or before September 30, 1955 and who, as a result of the 2005 RIF, either accepted a buyout or reduction in grade, or were terminated from their positions in the DRR.
The record evidence shows that no employee was compelled to accept a buyout as a result of the RIF. Rather, all employees who accepted a buyout did so voluntarily before the RIF was actually conducted and before any employees received any specific RIF notices. Moreover, the record evidence shows that age was not a factor in the FDIC's decisions to reorganize and downsize DRR, or in the design or implementation of the RIF. The record also shows that the FDIC followed applicable federal law and regulations (as well as Agency RIF procedures) in conducting the RIF in DRR, and that none of the actions taken by the Agency during the 2004- 2005 downsizing and RIF in any way violated Plaintiffs' rights under the ADEA.
II. FACTUAL BACKGROUND
Plaintiffs begin by stating what they call “the basic undisputed facts.” Pl's Br. at 1-4. But many of the salient
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facts asserted by Plaintiffs misstate the record evidence in this case. See discussion below and at section III.C. Plaintiffs' most egregious misstatement is their assertion that in 2005, the FDIC “terminated” the employment of 588 career employees, including 178 employees in DRR. In reality, as the Agency has clearly demonstrated in its own Motion for Summary Judgment and Memorandum in Support Thereof (“Agency MSJ”), the only involuntary “terminations” that occurred in 2005 resulted from the RIF in DRR - and within DRR, only 53 employees were terminated as a result of the RIF. See Agency MSJ at 38. In addition, 7 DRR employees retired in lieu of separation and 3 employees resigned after receiving a specific RIF notice. Id.[FN2] The remainder of the employees who left the FDIC in 2005 voluntarily retired or resigned, no doubt influenced by the generous buy-out program that had been offered by the Agency, which included a payment equal to half their annual salary and other incentives. See Agency MSJ at 13-15.
FN2. The average age of these 63 separated employees was 48.28 years - this group was not only younger, but statistically significantly younger, than the rest of DRR, a fact which is entirely inconsistent with Plaintiffs' claims of age discrimination. See Agency MSJ at 38.
III. ARGUMENT AND AUTHORITIES
A. Plaintiffs' Disparate Impact Claim Fails as a Matter of Law Plaintiffs' entire “Argument” (Pl's Br. at 4-9) is devoted to their disparate impact claim.[FN3] And, most of Plaintiffs' analysis of authorities is directed to the proposition that the employer - and not the employee - bears the burden of proof on the reasonable factor other than age (“RFOA”) defense to disparate impact claims in ADEA cases. Plaintiffs also argue (albeit in a very conclusory fashion) that Defendant has not presented evidence of an RFOA in this case. The former point is not necessary to a decision on the cross-motions for summary judgment for the reasons set forth below. On the latter point (evidence of an RFOA), not only is Plaintiffs' Motion without merit, the uncontroverted evidence requires judgment as a matter of law in favor of Defendant.
FN3. There are several references to what could be interpreted as disparate treatment (i.e., intentional discrimination) in the factual background portion of Plaintiffs' Brief; however, these items are never referred to in Plaintiffs' argument. These items are also either misstated or incorrect, as will be demonstrated in section III.C below. Also, as noted in the FDIC's motion for summary judgment, there is some doubt as to whether disparate impact claim under the ADEA is cognizable against a federal agency. See Agency MSJ at 23.
The question whether the employer or the employee bears the burden of proof on the RFOA issue is pending decision by the Supreme Court this term.[FN4] However, the summary judgment evidence is so clear on this issue that Defendant is willing to assume arguendo for purposes of the cross-motions for summary judgment that the employer bears the burden of proof on this issue. In this regard, it should be kept in mind that, no matter who bears the burden of proof, the Supreme Court has adopted an extremely liberal definition of what constitutes an RFOA.
FN4. Macham v. Knolls Atomic Power Lab, 461 F.3d 134 (2nd Cir. 2006), cert. granted, 128 S.Ct. 1118 (2008).
In Smith v. City of Jackson, 544 U.S. 228 (2005), the Court emphasized that an employer is at liberty to choose among alternatives for accomplishing any legitimate business purpose, and the employer is under no duty to choose the “most” reasonable alternative or even to choose from among reasonable alternatives that which has the least disparate impact. Id. at 241, 243. See also Agency MSJ at 23-24, 32. Thus, as long as an employment
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practice is not demonstrably unreasonable, it will constitute an RFOA.[FN5]
FN5. See Pippin v. Burlington Resources Oil & Gas Co., 440 F.3d 1186, 1200-01 (10th Cir. 2006).
Here, the only policy or practice Plaintiffs purport to attack is reasonable by its own terms. Plaintiffs' disparate impact complaint deals solely with FDIC's decision to conduct a RIF in its DRR organization. But the reason a RIF was necessary was the substantial reduction in problem banks and bank failures and the consequent lack of bank resolutions and receiverships. See Agency MSJ at 4-12. Therefore, the logical (and, a FORTIORI, reasonable) division in which to reduce staff had to be DRR, the division of “resolutions and receiverships.”
Plaintiffs suggest (Pls' Br. at 6) that, under EEOC regulations, “... when an employment practice by an employer causes an adverse impact against individuals within the protected age group, it can only be justified by business necessity.” This is not the law, and ignores the critical distinction made by the Supreme Court in City of Jackson. The regulation, codified at 29 C.F.R. § 1625.7(d), states in relevant part: When an employment practice, including a test, is claimed as the basis for different treatment of employees ... on the grounds that it is a “factor other than” age, and such practice has an adverse impact on individuals within the protected age group, it can only be justified as a business necessity.
Emphasis added. Thus, the regulation by its own terms appears to apply only to claims of disparate treatment. In any event, the EEOC itself has never adopted the interpretation that Plaintiffs would give the regulation. Since the regulation was adopted in 1981,[FN6] the EEOC in ADEA cases brought against federal agencies has consistently held that if a complainant establishes a prima facie case of age discrimination, the agency may avoid liability by showing that the employment action at issue was based on reasonable factors other than age; the Commission has not required, as Plaintiffs suggest, that the agency must also show that the action was justified by “business necessity.” See, e.g., Barrett v. FCC, Appeal No. 01831968, 1984 WL 484622, at *2 (EEOC, Apr. 4, 1984); Brite v. Department of the Navy, Appeal No. 01830976, 1983 WL 411679, at *5 (EEOC, Nov. 9, 1983). [FN7]
FN6. See 46 Fed. Reg. 47724 (Sept. 29, 1981).
FN7. In both of these cases, the EEOC cited Loeb v. Textron, 600 F.2d 1003, 1015 (1st Cir. 1979), in which the court also held that an employer may avoid liability by showing that the employment action at issue was based on reasonable factors other than age; the court did not require that the employer also show that the action was justified by “business necessity.”
The federal courts, including the Court of Appeals for this Circuit, also have held that federal agencies may avoid liability by showing that the employment action at issue was based on reasonable factors other than age, without also showing that the action was justified by “business necessity.” See, e.g., Cuddy v. Carmen, 694 F.2d 853, 858 (D.C. Cir. 1982) (“if reasonable and lawful factors dictate and support the employer's decision, additional consciousness of age is not itself interdicted by the Act”); see also, Armstrong v. Powell, 230 F.R.D. 661, 673 (W.D. Okla. 2005) (plaintiff cannot recover against federal agency if the employment practice was based on a reasonable factor other than age); Holdridge v. Thornburgh, 804 F.Supp. 876, 882 (N.D. Tex. 1992) (federal employer not liable under ADEA where decision not to hire plaintiff was based on reasonable factors other than age).
Furthermore, even a business necessity standard would be of no comfort to Plaintiffs in the case at bar. The Supreme Court has defined business necessity in this context to mean that an employment policy or practice “bears
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a manifest relationship to the employment in question.” New York City Transit Auth. v. Beazer, 440 U.S. 568, 587 n. 31(1979), quoting Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971). Reducing the staff of a division whose function has been concomitantly reduced by conditions in the regulated industry is ipso facto “manifestly related to the employment in question.”
Moreover, Plaintiffs cannot attack the reasonableness of the RIF methodology since it (1) was agreed to by the union which represents Plaintiffs' interests, (2) was conducted in accordance with RIF regulations promulgated by the United States Office of Personnel Management, and (3) is a process inherently weighted in favor of longer service employees. See Agency MSJ at 15-17; see also Reply Report of Dr. Jeanneret (Agency MSJ Ex. 27-1) at 15.
Plaintiffs' assertion (Pls' Br. at 5) that “Defendant has not offered evidence to show a defense based upon a reasonable factor other than age ...” is belied by the record. Defendant has affirmatively pled the RFOA defense. See Defendant's Answer (ECF Doc. 7) at 29, Ninth Affirmative Defense. Moreover, Defendant has introduced extensive evidence of the reasons for the staff reduction, its efforts to achieve most of the reduction through the exercise of employee choices rather than involuntary terminations, and the conduct of the RIF itself. See Agency MSJ at 4-20 and accompanying exhibits. All of this material is in the nature of reasonable factors other than age.
These principles are reinforced by analogous circumstances of key authorities construing the RFOA defense. For example, in City of Jackson itself, the Supreme Court went out of its way to hold (in the unanimous portion of its opinion) that an employer's decision to provide larger percentage increases to more junior employees to enhance its competitive position in the marketplace could not, as a matter of law, be attacked as unreasonable no matter what the impact of such a policy might be on older employees. 544 U.S. at 242. In Pippen, the Court of Appeals held that an employer's policy, in the context of a RIF, to “honor its prior commitment to new hires in order to protect its hiring reputation at the schools involved is reasonable, as is the decision to keep new hires who have not yet been evaluated” (i.e., to not include the new hires in its RIF) was an RFOA as a matter of law. 440 F.3d at 1201. And in Meacham, supra, the Court of Appeals held that even though the defendant's RIF criteria were “subjective and imprecise at best, the subjectivity disproportionately impacted older employees, [defendant] observed that the disproportion was gross[FN8] and obvious, and [defendant] did nothing to audit or validate the results,” the procedure nevertheless fulfilled the requisites of the RFOA defense. 461 F.3d at 144-46 .
FN8. Contrast the FDIC's actual RIF in DRR, which did not have a disparate impact on older employees. See Agency MSJ at 38.
B. Alternatively, Plaintiffs Have Not Established a Prima Facie Case
Plaintiffs have not come close to establishing either of the two critical elements of a prima facie case of disparate impact. The Supreme Court has made clear that a prima facie showing of disparate impact under the ADEA requires a plaintiff to both (1) isolate a specific practice, and (2) demonstrate that such practice has caused a disproportionate impact on older employees. City of Jackson, 544 U.S. at 241. Plaintiffs in the case at bar have done neither. See Agency MSJ at 30-32.
First, Plaintiffs have not identified a specific practice or policy as the object of their disparate impact claim. Rather, they complain about the generalized decision to conduct a RIF in DRR. That is not “isolating” a “specific” practice. Compare City of Jackson, supra, in which the Court criticized the plaintiffs/petitioners on similar grounds:
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[W]e initially note that petitioners have done little more than point out that the pay plan at issue is relatively less generous to older workers than to younger workers. They have not identified any specific test, requirement, or practice within the pay plan that has an adverse impact on older workers. As we held in Ward's Cove, it is not enough to simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to such an impact. Rather, the employee is responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.
544 U.S. at 241 (emphasis in the original, citations and quotations omitted). If the City of Jackson plaintiffs could not merely complain about a pay plan without isolating a specific element of such plan, then, a fortiori, the plaintiffs here cannot merely complain about the workforce reduction without isolating a specific element that can be demonstrated to have a disparate impact.
Also fatal to Plaintiffs' claim is the statistical evidence, which establishes beyond peradventure that there was no disparate impact on older employees. The actual RIF had a disproportionate effect on younger employees, not older employees. See Agency MSJ at 38. In addition, the demographics of DRR before and after the RIF are inconsistent with any negative age effect. Id. at 33-37.
The only way Plaintiffs are able to conjure up something they can label (erroneously) as disparate impact is to combine involuntary terminations incident to the RIF with voluntary retirements and/or acceptances of the buyout.[FN9] This analysis is statistically and legally invalid. See Agency MSJ at 30-31. Plaintiffs' apparent rationale for this clearly deficient statistical proffer is based upon a regulation governing waivers, which has nothing to do with the present case.
FN9. It is unclear to what extent Plaintiffs may be relying on departures from the FDIC as a whole rather than just DRR; however, this would be even less supportable than DRR separations, because (1) there was no agency-wide RIF, (2) Plaintiffs would be even further removed from isolating a specific practice or policy, and (3) the agency-wide separations were necessarily voluntary and weighted heavily with retirements and other normal attrition. Of course, this would also be inconsistent with Plaintiffs' class allegations which were directed exclusively at DRR. (See Plaintiffs' Motion for Class Certification, ECF Doc. 9, at 1-3, 6-7.)
Plaintiffs contend (Pls' Br. at 6) that “the decisional unit in this case is the FDIC because the incentive for a buyout was offered to all or almost all of the employees of the FDIC were offered [sic] the incentive to leave the employment of the agency. 29 C.F.R. 1625.22(d)(3).” Plaintiffs do not explain why this statement entitles them to summary judgment. But counsel for plaintiffs, David L. Rose, referred to this regulation of the EEOC at the deposition of Plaintiffs' expert, Lance Seberhagen, to explain why he (Mr. Rose) directed Dr. Seberhagen to include as equivalent in his disparate impact analysis employees who voluntarily decided to accept a buyout offer along with those whose employment was involuntarily terminated as a result of the RIF.[FN10] From Mr. Rose's statements at that deposition, it appears that Plaintiffs contend that, based on the EEOC regulation codified at 29 C.F.R. § 1625.22, the buyout program and the RIF itself may be considered a single program for purposes of their expert's statistical analysis.
FN10. See Seberhagen Dep. (Agency MSJ Ex. 33), at 104-106: MR. ROSE: [1625.22], then you go into F little 3 which refers to two types of programs exit incentive programs and other employment programs and it defines both of those and it also talks about the decisional unit in which is F3 .... [104: 18-21]
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MR. KESSLER: You raised these [regulations] in connection with the discussion about whether it is appropriate to include employees who took a buyout in the [disparate impact] analysis? MR. ROSE: Yes. MR. KESSLER: Is [there anything] else besides these regulations that you are [relying on in] directing your expert to include the buyout employees? MR. ROSE: Well, common sense is the fact that yes, I mean I think that's what the statute contemplates but the regulations and how they are referred is the statute. [106: 5-16]
As Plaintiffs concede (Pls' Br. at 6), the EEOC regulation applies to situations in which an employer seeks waivers from employees of rights and claims under the ADEA.[FN11] Specifically, 29 C.F.R. § 1625.22(f)(1)(iii) defines employer “programs” in which employers seeking waivers from employees of rights and claims under the ADEA must make certain disclosures. Subparagraph (A) states that there are two types of programs: “exit incentive programs” (such as buyouts) and “other employment termination programs” (such as RIFs). Subparagraph (B) states that a “program” exists “when an employer offers additional consideration for the signing of a waiver pursuant to an exit incentive or other employment termination (e.g., a reduction in force) to two or more employees.” Emphasis added.[FN12]
FN11. As the court explained in Burlison v. McDonald's Corp., 455 F.3d 1242 (11th Cir. 2006), 29 C.F.R. § 1625.22 implements provisions of the Older Workers Benefit Protection Act, 29 U.S.C. § 626(f), by requiring that employers provide certain information to departing employees from whom the employer obtains waivers of claims under the ADEA in exchange for certain severance or retirement benefits. The information must be provided to employees within the departing employees' “decisional unit,” which generally reflects the process by which the employer chose the employees for the program. 455 F.3d at 1245 n. 1. The fact that the FDIC downsizing in 2004-2005 (as opposed to the 2005 RIF in DRR) was corporate-wide, of course, does not render the EEOC regulation applicable to this case, in which the FDIC did not seek waivers of any rights or claims under the ADEA.
FN12. It is undisputed that the FDIC offered DRR employees a voluntary incentive (buyout) program before the FDIC conducted the RIF in DRR (in accordance with regulations of the U.S. Office of Personnel Management). See Defendant's Statement of Material Facts (filed with the Agency MSJ) at ¶¶ 42, 56. The fact that the buyout program and the RIF may fit the definition of a “program” under 29 C.F.R. § 1625.22(f)(1)(iii) also does not render the regulation applicable to this case. As noted, the FDIC did not seek, and is not asserting, waivers of any rights or claims under the ADEA.
The regulation cited by plaintiffs has no application here because the FDIC did not seek from any DRR employees waivers of any rights or claims under the ADEA[FN13] Nevertheless, Plaintiffs apparently believe that, based on the regulation, the FDIC's buyout program and the RIF that was conducted in DRR after the buyout program ended may be considered a single “program” for purposes of Dr. Seberhagen's disparate impact statistical analysis.
FN13. The record is very clear that the FDIC did not seek waivers of any rights or claims under the ADEA in this case. See, e.g., buyout application documents at Agency MSJ Ex. 14.
Plaintiffs' argument is not supported by the purpose or the language of the regulation, as discussed above. Moreover, Plaintiffs' argument makes no sense for the reasons stated by the FDIC's expert, Dr. Jeanneret. As Dr. Jeanneret explained in his February 21, 2008 report in reply to Dr. Seberhagen's report, Dr. Seberhagen was able
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to achieve what he called discriminatory adverse impact only “by combining the outcomes of different employee and employer decisions made under different circumstances,” i.e., combining employee resignations or retirements that were voluntary decisions with departures as a result of the RIF that were involuntary.[FN14] Dr. Jeanneret observed that it is inappropriate for a researcher to lump together those outcomes and assess them together.[FN15]
FN14. Jeanneret Reply Report (Agency MSJ Ex. 27-1), at 10. As noted in Agency MSJ at 31, Dr. Seberhagen testified at his deposition that he combined and treated as equivalent employees who voluntarily chose to take the buyout with the employees who were involuntarily separated by the RIF because counsel for Plaintiffs instructed him to do so. Seberhagen Dep. (Agency MSJ Ex. 33) at 37-47, 91.
FN15. Jeanneret Reply Report (Agency MSJ Ex. 27-1), at 11.
Thus, both the statistical and structural aspects of the RIF mandate denial of Plaintiffs' motion for summary judgment.
C. Response to Plaintiffs' “Background” Allegations[FN16]
FN16. This section addresses erroneous assertions or misstatements in the factual background portion of Plaintiffs' motion for partial summary judgment. There are also various errors in Plaintiffs' statement of “undisputed” facts (many of which are also immaterial to the cross motions for summary judgment), and these are addressed in Defendant's separate response to that document.
Plaintiffs have adverted to (though not supported with legal argument) several items in the factual background section of their brief (Pl's Br. at 1-4) which have nothing to do with their disparate impact claim. These items include: (1) Plaintiffs' allegation that DRR was selected for staff reductions because it was an “older” division; (2) an alleged statement by FDIC's thenchairman several years prior to the RIF; and (3) the recruiting on college campuses for certain positions outside of DRR. For completeness, Defendant responds to these allegations (in the order listed above) as follows:
1. In contrast to their present disparate impact claim, in their motion for class certification (ECF Doc. 9), Plaintiffs emphasized that their only class claim was that FDIC had intentionally selected DRR for reduction because it was an “old” division: Plaintiffs intend to prove that the FDIC targeted the Division of Resolutions and Receiverships for reductions because it was an “old” division.
Id. at 3. There are no claims made about discrimination in hiring, promotions, awards, training, discipline, or any other of the myriad of ways employees can be discriminated against by their employers.
Id. at7.
This theme is repeated in Plaintiffs' motion for summary judgment (Pl's Br. at 3), which states: “The DRR was the oldest Division in terms of the age and service of its employees.” Plaintiffs cite to no record evidence for this assertion, but Defendant will assume it arguendo in the context of the pending cross-motions for summary judgment.
The assertion is meaningless because Plaintiffs have adduced no evidence - none - that any manager or execut-
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ive at FDIC based the decision to reduce the staff of DRR on its allegedly being an “old” division. Despite extensive discovery, Plaintiffs have not produced the slightest indication that any decision maker had an awareness that DRR was allegedly an old or older division, or that this had any role in the decisions at issue in this case.
In contrast, Defendant has articulated the compelling reasons for reducing staff at DRR. (See Agency MSJ at 4-20, and section III.A above.) Thus, the intentional discrimination that Plaintiffs asked the Court to rely upon as the basis for class certification (ECF Doc. 9, quoted above) finds no support in the summary judgment evidence.
2. Without presenting a supporting exhibit, Plaintiffs purport to quote (Pl's Br. at 1) a former chairman of FDIC as testifying, inter alia, that he told a group of employees that “I want young people around me ... they have all the innovative ideas ...” Plaintiffs, however, have seriously misrepresented the record. The offending phrases were contained in Plaintiffs' counsel's question and not in the witness's testimony, which consisted only of the innocuous statement that “I'm sure on occasions I have talked about the value of young people in an organization.” See Deposition of Donald Powell, attached as Exhibit 39, at p. 13, lines 16-21.
Even if the testimony, correctly quoted, were somehow construed as a negative statement about older employees (which clearly it is not),[FN17] it would be a “stray remark” as that term is used in employment discrimination jurisprudence, and thus irrelevant and immaterial. For a remark of this type to be probative, it must be (1) made by a decision maker, (2) at a time reasonably proximate to the decision at issue, and (3) relate to the decision at issue.[FN18] Plaintiffs have not attempted to make these showings, and in any event, the summary judgment evidence is to the contrary. First, the statement was alleged by Plaintiffs to have been made “in 2001 or 2002,” Powell Dep. (Ex. 39) at p. 13, lines 16-17, long before the 2005 RIF. Second, Chairman Powell was not a decision maker with respect to the operational aspects of the RIF.[FN19] Finally, Plaintiffs make no attempt to connect the alleged remark to the decisions at issue here.[FN20]
FN17. Note that Plaintiffs do not make any reference to this material in the argument section of their brief.
FN18. Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 882 (5th Cir. 2003). See also Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O'Connor, J., concurring) (“[S]tray remarks in the workplace ... unrelated to the decisional process itself [cannot] suffice to satisfy the plaintiff's burden.”); Girten v. McRentals, Inc., 337 F.3d 979, 983 (8th Cir. 2003) (remark that plaintiffs were too old did not show pretext, because it was remote in time and may not have been made by a decision maker).
FN19. A review of the very brief deposition of former Chairman Powell (Ex. 39) underscores his lack of involvement in (or even knowledge of) how the RIF was implemented.
FN20. See Beeck v. Federal Express Corp., 81 F. Supp.2d 48, 53-54 (D.D.C. 2000) (granting summary judgment for employer and holding that discriminatory statements, “even if made by decision-makers,” are not direct evidence of discrimination “where the remarks are unrelated to the decisional process itself.”), citing, inter alia, Siragy v. Georgetown University, No. Civ.A. 97-2557, 1999 WL 767831, at *6 (D.D.C. Aug. 20, 1999) (Urbina, J.).
3. Plaintiffs' assertions about FDIC's college recruiting (Pl's Br. at 2) are both disingenuous and not germane to the RIF in DRR. In his initial report, Plaintiffs' expert dismissed the idea of any hiring issue as follows: The great majority of these new hires were non-career appointments (e.g., interns and trainees) at Grade 7 or
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lower, assigned primarily to [divisions other than DRR]. 10/15/07 Report of Lance Seberhagen (Agency MSJ Ex. 28) at p. 6.[FN21] Plaintiffs' expert was correct in these statements as evidenced by his tables on hiring activity at the agency. See id. at Table 12, 1/28/08 Seberhagen Report (Agency MSJ Ex. 28-2) at Table 15 (showing that the bulk of the hiring was in relatively low-level jobs).
FN21. ECF header p. 8 of Doc. 43-11.
In his final report, however, Dr. Seberhagen changed his hiring conclusion by deleting the above-quoted statement that the great majority of new hires were lower level interns and trainees, and has instead added a statement that “thus, FDIC was hiring younger workers at the same time that it was laying off older workers.” See 1/28/08 Seberhagen Report (Agency MSJ Ex. 28-2) at p. 6.
This change was obviously made to accommodate Plaintiffs' argument. It is not grounded in the expert's hiring data (which were virtually unchanged from his initial to his final report), and it is misleading. Indeed, Dr. Seberhagen's data reflect that DRR hired only four employees[FN22] during the year that it was reducing its workforce from over 500 to less than 240. This is obviously inconsequential.
FN22. See 1/28/08 Seberhagen Report (Agency MSJ Ex. 28-2) at Table 16 (ECF header p. 67 of Doc. 43-11; also found in Plaintiffs' MSJ exhibit at ECF header p. 14 of Doc. 44-5). See also Second Declaration of Lester Bodian (attached hereto as Exhibit 36), at ¶ 10.
Moreover, Plaintiffs' assertion about college recruiting (Pl's Br. at 2) concerns divisions other than DRR; i.e., primarily trainees to become future bank examiners in DSC.[FN23] Presumably, Plaintiffs are attempting to imply that this detracts from Defendant's business reason for staff reductions in DRR. But there is nothing surprising about the continuing need for certified bank examiners in a division (such as DSC) tasked with the supervision of all banks, while being overstaffed in a division (such as DRR) responsible for disposing of assets incident to bank failures (of which there were virtually none).
FN23. Plaintiffs describe these positions as entry level hires embarking on an extended (three or four years) training program followed by an examination to become bank examiners. Pl's Br. at 2.
Even more significantly, these jobs were made available to Plaintiffs. See Agency MSJ at 12-13. In the context of the crossover program (one of the options especially designed to provide for employee choice during the staff reductions), all that DRR employees had to do was apply; many of them did so; and virtually all who applied were successful. Id.
IV. CONCLUSION
In their pending cross-motions for summary judgment, both Defendant and the Plaintiffs contend that this case should be disposed of on motion, without the necessity of litigating any material issues of fact in this non-jury case. Plaintiffs contend that they are entitled to summary judgment as to liability under the theory that the FDIC's corporate-wide downsizing in 2004- 2005 had a disparate impact on DRR employees who were age 50 and older. But their only proffered support for this conclusion was obtained by employing the artifice of instructing their expert to combine the large number of DRR employees who voluntarily chose to take the buyout prior to the RIF with the much smaller group of employees who actually were involuntarily separated during the RIF. [FN24] When the disparate impact analysis is properly limited to the 63 DRR employees who were involuntarily
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separated during the RIF, the statistics show that RIF had a disparate impact on younger employees who were under 50.
FN24. Even this contrived result falls short of the Supreme Court's requirements for a prima facie case. See section III.B above and Agency MSJ at 30-32.
Moreover, the FDIC has presented irrefutable evidence of the business conditions in the banking industry at the time which completely justified its downsizing decisions with respect to the Agency as a whole and DRR in particular. The Agency's compelling reasons for reducing its staff provide a complete defense to Plaintiffs' disparate impact claim of age discrimination.
For the reasons set forth herein and in the Agency's motion for summary judgment, Plaintiffs' motion should be denied and the Defendant's motion should be granted.
Dated: March 7, 2008
Barbara ALIOTTA, et al, Plaitiffs, v. Sheila C. BAIR, Chairman, Federal Deposit Insurance Coporation, Defendant. 2008 WL 2777694 (D.D.C. ) (Trial Motion, Memorandum and Affidavit )
END OF DOCUMENT

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 United States District Court, District of Columbia. Barbara ALIOTTA, et al and Others similarly situated, Plaintiffs, v. SHEILA BAIR, CHAIRMAN, Federal Deposit Insurance Corporation, Defendant.
No. 105CV02325. March 10, 2008. Class Action Plaintiffs' Memorandum In Opposition to Defendant Fdic's Motion for Summary Judgment David L. Rose, Joshua N. Rose, Dotie Joseph, Rose & Rose, P.C., 1320 19th Street, NW, Suite 601, Washing- ton, D.C. 20036, (202)331-8555, (202) 331-0996 Fax, daver@roselawyers.com, Josh@roselawyers.com, djoseph@roselawyers.com, Attorneys for the Plaintiff- Class. TABLE OF CONTENTS
Table of Contents ... i Table of Authorities ... iii I. INTRODUCTION ... 1 II. THE UNDERLYING FACTS ... 1 A. The Carrot and Stick Buy Out and Retirement Programs at the FDIC ... 2 B. The 2005 RIF and Buyouts ... 4 1. Corporate University. ... 4 2. Reducing Headcount, ... 5 C. Defendant Considered Age in Designing the Downsizing ... 7 D. The RIF Plan of October 2004 ... 8 E. Crossover Demotions ... 8 F. The Effect of the Downsizing ... 9 G. The Expert Reports ... 12

H. Plaintiffs Took the Buyout For Fear of Termination ... 13 III. PROCEDURAL HISTORY ... 14 IV. ARGUMENT ... 15 A. Plaintiffs Raise Substantial Evidence of Discrimination ... 17 1. Plaintiffs Have Substantial Evidence of Age Discrimination ... 17 B. The 2005 Downsizing Was A Single Practice ... 20 1.The Downsizing was a Single Practice for Adverse Impact Analysis Statistical Analysis Looks at All Employ- ees Targeted by the Same Decisionmaker ... 21 2. All Plaintiffs Were Harmed by the 2005 Downsizing Program ... 23 C. The 2005 Downsizing Violated the ADEA ... 25 1. Direct Evidence ... 27 2. The 2005 Program Had a Significant Disparate Impact ... 28 i. EEOC Regulations Defining Terms Under the ADEA Are Binding on Federal Agency Employers ... 30 ii. Reasonable Factor Other Than Age is an Affirmative Defense ... 31 iii. Only A Showing of Business Necessity Can Justify a Significant Adverse Impact Against Older Federal Employee ... 32 iv. It is Well Established that ADEA Claims Against a Federal Agency are Cognizable ... 33 v. Limits On Civil Service Protections Do Not Limit ADEA Remedies ... 33 3. Disparate Treatment ... 34 V. CONCLUSION ... 35
TABLE OF AUTHORITIES
STATUTES AND REGULATIONS 5 U.S.C.§§7702(e)(1) ... 32 Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 etseq ... passim 29 U.S.C.§§ 626 (b)(4) ... 29 29U.S.C.§§626(f)(1) ... 29, 30

29 U.S.C.§§ 626 (f)(1)(A-G) ... 29, 30 29 U.S.C. §§ 636(f)(1)(H) ... 20 29 U.S.C. §§ 636 (f)(1)(H)(ii) ... 20 29 C.F.R. §§ 22(d)(3) and 22(f)(iii)(B) and (C) and (iv)(3) ... 20, 21 29 C.F.R §§ 1625.22 ... 19, 20, 21 29 C.F.R. §§ 1625.22(d)(iii) ... 21 29 C.F.R. §§ 1625.22(d)(3) ... 21 29 C.F.R. §§ 1625.22 (f)(3)(ii)(E) ... 20 29 C.F.R. §§ 1625.22 (f)(3)(vi) ... 21 29 C.F.R. §§ 1625.7 ... 29, 30 29 C.F.R. §§ 1625.7(d) ... 30 29 C.F.R. §§ 1625.7(e) ... 29, 30 29 C.F.R. §§ 1625.7(d) and (e) ... 29, 30 CASES AARP v. Farmers Group, Inc., 943 F.2d 996, 1000 n. 7 (9th Cir. 1991) ... 25 Adams v. Ameritech Services, Inc. 231 F.3d 414, 433 (7th Cir 2000) ... passim Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1289 (D.C.Cir.1998) (en banc) ... 17 Anderson v. Liberty Lobby, Inc., 477 U.S 242, 247-48, 106 S.Ct. 2505,91 L.Ed.2d 2002 (1986) ... 16 Armstrong et al v. Powell, FDIC, 230 F.R.D. 661 at 666 (W.D. Okla. 2005) ... 2 Bender v. Hecht 's Dept. Stores, 455 F.3d 612 (6th Cir. 2006), cert denied 127 Set. 2100(2007) ... 21, 28 Blair v. Henry Filters, Inc., 505 F.3d 517, 530 (6th Cir. 2007) ... 19, 21, 32 Bodnar v. Synpol, 843 F.2d 190 (5th Cir. 1988) ... 17, 25 Breen v. Peters, 474 F.Supp.2d 1, 7 (.D.C. 2007) ... 18, 20, 33 Burks v. Oklahoma Pub. Co., 81 F.3d 975, *978 (C.A. 10 (Okl.) 1996), cert denied 519 US 931 (1996) ... 25 Cameron v. U.S.P.S., EEOC Appeal No. 07A40130 (Sept. 20, 2005), reh 'g denied, EEOC Request No. 05A60099 (Dec. 22, 2005) ... 33

Carpenter v. Fed. Nat 'l Mortgage Ass 'n, 165 F.3d 69, 72 (D.C. Cir. 1999) ... 19, 34 Castaneda v. Partida, 430 U.S. 482, 496 n. 17, 97 S. Ct. 1272,51 L.Ed.2d 498 (1977) ... 29, 30 Currier v. United Technologies Corp., 393 F.3d 246, 254 (1st Cir. 2004) ... 21 Enlow v. Salem-Keizer Yellow Cab Co., Inc., 389 F.3d 802, 812 (9th Cir. 2004) ... 27 Frank v. United Airlines, Inc., 216 F.3d 845, 854 (C.A.9 (Cal.) 2000) ... 27 FTC v. Morton Salt Co., 334 U.S. 37, 44-45 (1948) ... 31 George v. Leavitt 407 F.3d 405, *413, 366 U.S. App. D.C. 11, **19 (C.A.D.C., 2005) ... 19, 34 Gerdom v. Continental Airlines, 692 F.2d 602, 608 (9th Cir. 1982) (en banc) ... 27 Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 308 n. 14, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977) ... 29, 30 Henn v. Nat 'l Geographic, Sco 'y 819 F.2d 824 (7th Cir.), cert. denied, 484 U.S. 964, 108 S.Ct 454, 98 L.Ed 2d 394 (987) ... 17, 24, 25 Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) ... 18 Hopkins v. Price Waterhouse 920 F.2d 967, 972, 287 U.S.App.D.C. 173, 178 (1990) ... 26 Ikossi v. Department of Navy, 2008 WL 540234, *3 _F.3d , (D.C. Cir. 2008) ... 33 McCullom, et al v. Dept. of Transportation, EEOC Doc 07A60055 (Oct. 26, 2006) ... 33 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802,93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ... 27 Meachum et al v. Knolls Atomic Power Lab., 461 F.3d 134 (2d Cir. 2006), cert granted, 128 S.Ct. 1118 (2008), S.Ct. No. 1505 ... 17, 18, 32 Mitchell v. Mobil Oil Corp., 896 F.2d 463, *467 (C.A. 10 (Colo.) 1990) ... 25 Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6thCir. 1992) Mrray v. Gilmore, 406 F.3d 708, 713, 365 U.S.App.D.C. 372, 377 (D.C. Cir. 2005) ... 34 Palmer v. Schultz, 815 F.2d 84 (D.C.Cir. 1987) ... 1, 28, 29, 30 Price Waterhouse v. Hopkins, 499 U.S. 228 (1989) ... 26 Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444, 449 (8th Cir. 1993) ... 27 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (U.S. 2000) ... 19, 27, 28, 34 Ridenour v. Lawson Co., 791 F.2d 52, *57 (C.A.6 (Ohio) 1986) ... 23 Rowell v. BellSouth Corp., 433 F.3d 794, *805 (C.A. 11 (Ala.) 2005) ... 25

Schmid v. Frosch, 680 F.2d 248, 250 (D.C. Cir. 1982) ... 17, 21, 29
Schuler v. Polaroid Corp., 848 F.2d 276 (1st Cir. 1988) ... 25
Schuler v. PwC, 2008WL 360923, Slip Op. at 26 (D.C. Cir. Feb. 12, 2008) ... 1, 21
Shaffer ex rel. Schffer v. Weast 546 49, 57 (2005) ... 31
Smith et al v. City of Jackson, 544 U.S. 228, 125 S Ct. 1536, 1544 (2005) ... passim
Strawberry v. Albright, 111 F.3d, 943, 947 (D.C. Cir. 1997) ... 34
Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 510-11, 122 S.Ct. 992,152 L.Ed.2d 1 (2002) ... 20
Teamsters v. United States, 341 U.S. 324, 339 (1977) ... 28
Terban v. Dept. of Energy, 216 F.3d 1021 (Fed. Cir. 2000) ... 33
Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 122 (1985) ... 27
Tyler v. Union Oil Co. of California, 304 F.3d 379, *392 (C.A.5 (Tex.) 2002) ... 21
Walton v. McDonnell Douglas, Corp., 167 F.3d 423, 426 (8th Cir. 1999) ... 27
Watson v. Forth Worth Bank and Trust, 487 U.S. 977, 994 (1988) ... 28
Western Air Lines, Ind. v. Criswell, 472 U.S. 400, 416-417 & n. 24 (1985) ... 31
I. INTRODUCTION
In implementing its 2005 Reduction in Force (“RIF”) and Buyout program, the Defendant Federal Deposit Insur- ance Corporation (“FDIC” or “Agency”) made employment decisions which terminated the employment of 402 of its 1,686 permanent employees who were over the age of 50, or 19.3%, but terminated the employment of 266 of its 3,002, or 8.9% of its younger employees. Ex. 1 (Declaration and Report of Dr. Seberhagen) at Table 13. Similarly, of the 323 career or permanent employees in its oldest Division, Division of Resolutions and Receiv- erships (“DRR”), the FDIC terminated the employment of 138, or 42.7% of individuals who were age 50 or older in 2005, and only 55, or 30.6% under age 50. Ex. 1, Table 11. In designing and implementing the 2005 RIF, the FDIC's actions had an “adverse” impact against its oldest employees in DRR and in the FDIC, and caused the termination of the employment of approximately 138 members of the class, including 51 of the 52 Plaintiffs. On that basis alone, the FDIC's motion for summary judgment should be denied. No more need be shown under the ADEA to make aprimafacie case of a pattern or practice of age discrimination under the 2005 Program by the Defendant FDIC. Smith v. City of Jackson, 544 U. S. 228 (2005); Schuler v. PwC, F.3d , 2008 360923 (D.C.Cir. Feb 12, 2008) (NO. 06-7207); Palmer v. Schultz, 815 F.2d 84 (D.C. Cir. 1987).
II. THE UNDERLYING FACTS
FDIC was established in 1933 and is an Agency of the United States. Its Chairman is appointed by the President of the United States, as is the Comptroller of the Currency, who is on the Board of the Defendant. After the sav- ings and loan crises of the 1980's was resolved in the mid-1990's, the FDIC has engaged in downsizing in the

1990's and in 2000, 2002 and 2003. See, Defendant's Motion for Summary Judgment and Memorandum in Sup- port Thereof (“Def. Mtn), pg. 4-5; Defendant's Statement of Material Facts (DSMF), #8, pg 3. While plaintiffs' are not directly challenging Defendant's actions from 1995 through 2003, the earlier downsizing provide back- ground on the defendant's standard operating procedures and its intent as manifest in a series of layoffs that led to the 2004-05 downsizing at issue in this case. While it is not entirely impossible that a decreased workload may have played some part in the Agency's downsizing, the facts reveal that could not have been the primary factor considering its admitted desire to push out older workers and simultaneously hire younger workers.
A. The Carrot and Stick Buy Out and Retirement Programs at the FDIC
The FDIC's approach to downsizing was rooted in the Agency's evaluations of how to design and implement RIFs, beginning in the 1990s. See, Def. Mtn, 4-5. At a meeting on Aug. 8, 1995, the Board recognized that tire- menteligible people as those “who are the highest cost” to the Corporation, and as “really where we have the excess,” and successfully endeavored to create a program “weighted toward the senior executives” who are “eligible for retirement.” Ex. 2 (Board Transcript of Aug. 8, 1995). As much as Mr. Squerrini tried to link sever- ance pay to “years of service,” Director of the Division of Finance, Steven Selig made clear that the determining factor was “age, -its age, -its age.” Ex. 2 at 41.
As an additional justification for the RIFs, Dennis Geer, the FDIC's chief operating officer, confirmed this con- cern with pushing out older workers. Ex. 3, (American Banker article, noting the Agency's hope “that older em- ployees will use the buyout to take early retirement”). Geer also described how the RIFs were specifically de- signed so as “to keep some of the youngest and brightest people who are moving up in the rank.” Ex. 3; see also, Armstrong et al. v. Powell, FDIC, 230 F.R. D. 661 at 666 (W. D. Okla. 2005).
However, transcripts reveal that the Board felt that without effective deterrence or a “stick,” the buyouts would have low acceptance rates thus be ineffective. Ex. 4 (Sept. 26, Board Transcript). During the course of discus- sions, Jonathon Fletcher, Acting Director of the Office of Thrift Supervision did note his concerns about the dis- criminatory implications of what the Agency was trying to do: “...much of what we've been talking about is in a sense directed at encouraging the more senior executives, who pretty much by definition are the - - have the longer careers here, are older, when we're trying to incent those folks to leave, and I hope that's not illegal.” Ex. 4, pg. 8.
Nonetheless, the board ultimately, voted to offer the buyout as a “carrot” to encourage voluntary attrition and make it less attractive to stay as a stock.” Ex. 4, 30.
On Sept. 25, 1995, Dennis F. Geer, Deputy to the Chairman and Chief Operating Officer (“COO”) and William A. Longbrake, Deputy to the Chairman and Chief financial Officer (CFO) issued a memorandum to the Board of Directors recommending they adopt a “Program to Reduce Permanent Staffing Levels.” Ex. 5. In accord with the carrot and stick recommendations that summer, the FDIC COO and CFO expressly noted one reason for their re- commendation is that “the proposal would effectively reduce staff that are more senior and closer to retirement, which would achieve higher cost savings.” Ex. 5, pg 2 (emphasis added).
The 1995 reduction in force included the highest level for Executives, of whom there were 29 executives who were eligible for retirement then, and an additional 80 who were “Early Retirement Eligible” that is at “least age 50 with a minimum of 20 years of service.” Ex. 6, at DOA BF 06260. At the same time the offer was to be ex- tended to 234 Optional Retirement Eligibles in Grades 12-15 and 666 such employees who were eligible for “early retirement.”

The FDIC's downsizing efforts continued in 1997 at least through 2003. See, Defendant's Statement of Undis- puted Facts, para. 10, p. 4.
B. The 2005 RIF and Buy-Outs
While he was Chair of the Defendant, Chairman Powell repeatedly addressed groups of employees and asked them how long they had been worked at the Agency (including the part that came from the Office of Thrift Supervision”) and stated his desire to have “young people near me, because they have all the innovative ideas.” Ex. 10, Powell Dep. at 13.
As Chairman Powell's letters to Stakeholder's for the fourth quarter, 2004 shows, the Agency's budget for 2005 was similar in size to the 2004 budget, but the Agency planned further downsizing so that the agency could com- mence recruitment for new employees on the campuses of colleges and universities and community centers un- der the new Corporate Employee program. Ex. 9 (Powell Deposition). The 2005 downsizing was to be com- pleted by September, 2005.
1. Corporate University
On September 2, 2005, the Associate Director, Division of Administration, Human Resources Branch, sent a global e-mail message to all FDIC employees to soliciting volunteers “to participate in college recruitment and national community outreach initiatives.” Admission No. 115. Available data show that the average age of re- cent graduates of colleges and universities is well less than 35 years old. See, Adams v. Ameritech, 429 (based on statistics showing that only about 8% of student enrolled in higher education and 3.4% of undergraduates were 40 or over, the Seventh Circuit noted that a trier of fact could find that “a desire to hire from colleges” was a proxy for a preference to hire younger employees). Statistics for the year 2005, published by the National Center for Education Statistics at the U.S. Department of Education indicate the percentage of student over the age of 40, and 50 like the current class is just as small in comparison to those under 40. Ex. 12.
2. Reducing Headcount
In the Spring of 2004, the DRR had set up a task force to study the size of the DRR in the future and to make a recommendation for its size in 2005. While that task force met several times in the Spring and early summer, it did not prepare any recommendation in the early summer.
The Buyout and RIF's program adopted on Oct. 25, 2004, like its predecessors, followed the carrot and stick ap- proach. In the summer of 2004, high level personnel in DRR prepared three documents concerning the size of DRR for fiscal 2005. DSMF, #23-26, pg. 8-9. The first memorandum of Aus. 8, 2004, COO Bovenzi advised Agency employees that the “FDIC of the future will be a smaller, more flexible agency. Ex. 1 to FDIC's Motion for S. J. and Facts Nos. 14 and 15. The second memorandum dated Aug. 21, 2004 from Director Glassman of DRR to COO Bovenzi recommended that the Agency “keep the DRR staffing stable at about 501 permanent em- ployees. Ex. 11 (Mergen Dep.), pg. 24, 26, and 28.
On September 6, 2004, the task force led by James Seegers, Dep. Director of DRR, who manages its Adminis- trative Section, circulated for comment the executive summary of the task force's recommendations which stated that “A comprehensive analysis of the Division's business model ....reveals the need to address excess capacity within the Division...” and that “staffing levels within the Division can be reduced from 517 to 342...a 34% re- duction in total staff [that] will save an estimated $21 million in annual salary costs.” FDIC's Response to

Plaintiffs' Request for Admission 44. This was the second recommended proposed draft forwarded from DRR in 2004 for 2005.
There is no evidence in the record to indicate how the task force arrived at these numbers or whether it con- sidered the need for individual positions or the skill sets of existing employees in any way shape or form. On October 25, 2004, DRR leadership, under Mr. Glassman, made its third (3) memorandum to COO Bovenzi thatproposed a reorganization that would reduce its permanent staff in Washington from 101 to 63, or by 38 persons, and its permanent staff in Dallas from 413 to 173, a reduction of 240positions and employees. DSMF #25; Def. Mtn, Ex. 7. This recommendation was adopted. The record contains no evidence of any study showing a need, or even a rational business purpose for that level of staff cuts.
Bovenzi stated in his Memorandum to all Agency Employees of Oct. 26, 2004: “it appears likely that the necessary staffing reductions cannot be accomplished entirely through voluntary departures...Accordingly we have begun active planning for RIFs in DRR and DIRM in the third quarter of 2005, and in DOA, Legal and DOF in 2006 to “most employees By Memo. of Aus. 8, 2004, COO Bovenzi advised Agency employees that the “FDIC of the future will be a smaller, more flexible agency. Ex. 1 to FDIC's Motion for S. J. and Facts Nos. 14 and 15 in DRR, DIRM [later called DIT], DOA, Legal and DOF” “and we estimate a reduction of between 500 to 600 from our current on- board workforce of nearly 5,300. These reductions will occur by year-end 2006, with most of the reductions occurring by year-end 2005.” Deft. Ex. 6, AL-Legal-00273.
Such a reduction would have reduced the FDIC workforce of 5,300 by 600 employees to 4,700 at most by year end 2006. DSMF #19, pg 7.
The Agency admits “that 565 FDIC employees had accepted the buy out”, and had retired effective May 2005. Defendant's Response to Requests for Admissions. 104. The goal of an expanded headcount reduction of 500 to 600 by the end of 2006, had been met by “etirements or resignations” long before April, 2005 and were effective no later than May 14, 2005.
Although the agency had met not only the headcount reduction goal recommended by the Task Force, but also the additional cuts approved by Bovenzi in October 2004, it decided to go forward with involuntary terminations in the summer and fall of 2005. The record contains no evidence to indicate that the decision was motivated by a reasonable factor other than age or by business necessity.
C. Defendant Considered Age in Designing the Downsizing
The records of the Agency show that Peggy Green, an employee in Personnel Administration in DRR in Dallas sent an e-mail message on October 26, 2004, 2.46 p.m. to, Leslie Plant Deputy Director DRR, subject “FRS MRA 10” that states (Plns Ex. 3 to Bovenzi Dep., AL-DRR-00570: “FYI I have compiled the list of DRR-Dallas employees covered by FERS who have reached their MRA (or older) but have less than 20 years in FERS, Of the 118 people on the list, only 2 people.... have less than 10 years in FERS. So 116 will be separated with an immediate(but reduced”annuity.”
The term “MRA” means minimum retirement age in that memorandum and where used elsewhere.
The same record page (Ex. 3) shows that on October 21, 2004, Ms. Plant forwarded the Green message to See- gers and Ivie stating (AL DRR-00570):

“Here is a quick glance at the population of those individuals (Dallas) that reach MRA and have more than 10 but less than 20 years (FERS) as of 12/31/05. There are a number of anomalies but the number is close. This as- sumes separation at 12/31/05 and all 116 would not be affected.”
The record does not identify the list sent by Ms. Green and forwarded by Plant. It does contain a list of employ- ees in Dallas many of whom were in DRR. does contain a document with similar information in alphabetical or- der the employees in Dallas, mostly in DRR but also some in “DOS/DSC and Legal. Plaintiffs' Ex. 2, Bovenzie Dep.
D. The RIF Plan of October 2004
The Reorganization contains four pages of text, and a page of Issues noted in the 10/19/04 Proposed DRR Reorganization dated 10/19/04, as amended 11/02/04. AL DRR 002233. There is a separate page noting the Proposed Staffing Results shows the Current and Proposed employees in DRR and discloses that “17 New Hires not in- cluded in Proposed Numbers” and that the slots of 82 (91-9) current employees were transferred to Administra- tion.” AR DRR 00234
The Proposed Reorganization shows the difference in staff size by grade and by number of positions, for three “Management” grades, namely EM, CM2, and CM1, that is, in descending order. The chart shows that not one of the three current E positions were affected by the downsizing, and that there would continue to be 16 CM po- sitions, but 3 of the CM2 positions were converted to CM1 Positions.
The Defendant admits that it employed “six CM-1 Closing & Resolution Managers in Dallas.” Response to RFA 55. The Defendant does not state or suggest that it terminated the employment of any of them either as apart of the 2005 program or otherwise.
It is undisputed that the downsizing proposal was provided to employees as part of the information on the “voluntary” severance package.
E. Crossover Demotions
The proposed reorganization did not expressly mention a cross over program. However, the Agency conducted a crossover program in which it allowed employees in grades 12, 13 and 14 in DRR to transfer to Grade 12, in or- der to become an employee in the newly established Corporate Employee Program. DSMF #37, pg. 11. In its Response to RFA 115, the Agency states that the Plaintiffs description of the program “is an incomplete descrip- tion Program.
The Agency states that on Oct. 19, 2004, COO Bovenzi sent an e-mail to all FDIC permanent employees” DS- MF #34, pg. 11; Def Mtn, Ex. 4, and that on Feb. 1, 2005 he sent to an e-mail to FDIC employees grade 12 and above “Nationwide, soliciting interest for Associate Financial Institution Specialist In-Service Placement Oppor- tunity” (aka the “Crossover Program”), and that on March 14,2005, he sent an e-mail to FDIC employees “Implementation of the Corporate Employee Program) and that on June 13, sent another on that subject. DSMF #39, pg. 11-12; DefeMtn, Ex. 16. In its response to Requests for Admissions 110, 111, 112, 113, 116, and 118 the Agency declined to respond to respond to statements made in the Seberhagen report, because of errors in in- terpreting the data provided by plaintiffs' counsel.” The Agency has however produced no data or other informa- tion showing inaccuracies or errors.

F. The Effect of the Downsizing
Ihe Declaration of Seberhagen dated Jan. 28, 2008, contains the same data that Dr. Jeanneret used in his report. There was a difference of 16 employees because all of the plaintiffs were career employees and as that title sug- gests had the greatest civil service protections against discharge or demotion. Plaintiffs had not believed the dis- tinction of 16 “permanent” employees a significant one. However, Defendant did not address the difference until the deposition of Dr. Seberhagen taken by the Defendant on Jan. 30, 2005.
In any event, the Agency did terminate the employment of about 16 “permanent” employees as well as the 487 “career” employees, so Plaintiffs asked Dr. Seberhagen to prepare “a report, using the same methods as before, but reporting separately adverse impact of the 2005 Out and RIFs” program. Dr. Seberhagen's Report is attached hereto Exhibit 1 in opposition to the pending motion for summary judgment. His findings are based upon two sets of data, the data concerning the “career” employees under 50 versus those 50 and up. Ex. 1. downsizing. The FDIC now concedes that at least 17 older employees accepted a lower grade to enroll in the Corporate Uni- versity Program. See, Amended Response by the Defendant to Plaintiffs' Request for Admissions 62 and 112 (March 4, 2008).
The conduct of the FDIC described above terminated the employment of at least 138 members of the class of Agency employees over the age of 50 in DRR, and the transfer and reduction in grade and responsibilities of at least 20 additional class members.
The FDIC has not offered evidence of any “reasonable factors other than age.” 29 U. S. C. 626(f). Defendant FDIC filed its motion for summary judgment on Feb. 25, 2007, and Plaintiffs' filed their motion for partial sum- mary judgment on the same day.1 Unless this Court grants summary judgment to Plaintiffs, it should set this case for trial as soon as feasible.[FN1]
FN1. We are presenting a full statement of facts and discussion of the law here, because we assume that this Court would wish to consider the FDIC's motion for summary judgment before addressing what in substance was Plaintiffs' cross motion for summary judgment.
The Equal Employment Opportunity Commission (the “EEOC” or the Commission”) has been the lead agency for executive branch Departments and Agencies of the United States in their implementation of Federal equal employment opportunity laws and policies. Executive Order 12106 (1979). The Defendant FDIC is such an Agency and is obliged to obey the “regulations...and instructions” of the Commission. E. O. 12106 at para. 4. In its argument in support of its motion, as in its 2005 downsizing program, it ignored its obligations under the text of the ADEA, and under E.O. 12106 and the lawful Regulations of the EEOC.
In addition, as a part of the same program, it induced at least 76 employees of the Agency in DRR to transfer to its largest Division, DSC, of whom 38, or 63% were age 55 or older in 2005. Of the 51 of Plaintiffs in this case, 35 were in the class of 112 were employees terminated by the Agency on or before May 14, 2005 after accept- ance of a buy out; and an additional 16 of them were among the 28 oldest employees who were terminated; and an additional 38 employees over the age of 50 lost their employment in DRR and were obliged to transfer to an- other practice at least 16 of them, like Plaintiff Haag, were able to accept a lower grade and less important. Ac- cordingly, Plaintiffs believe that at least 158 plaintiffs and other members of the class were harmed and treated adversely under the valid regulation of the EEOC and precluded.
The “Undisputed Facts” set forth in Our Memo. of Feb. 25, 2008 at 1-4 are undisputed, Plaintiffs believe them

to be accurate. In particular the FDIC in implementing the downsizing of DRR in 2005 under the “Buyout and RIFs” program announced in October and November 2004, the FDIC terminated through RIF related procedures the employment of 178 “career” employees in DRR, of whom 132 were over the age of 50, and therefore were within the class certified by this Court, and only 46 were younger. Seberhagen Report Table 10. In so doing, it terminated the employment of 41.6% of its oldest employees in DRR, but only terminated the employment of 46 career employees in that Division, for a disparity of more than ten (10) standard deviations, and the different un- der the converse of the 80%. Id. The likelihood of such a disparity not being related to age is less than 2 out of a thousand. Such a disparity is much greater than 2 standard deviations (almost 2 of 100) and than 3 standard de- viations And because the career employees have the greatest likelihood of retaining their employment under usual RIF rules, that is perhaps the most appropriate comparison.[FN2]
FN2. The goal adopted by the FDIC for 2005 was to reduce the number of “permanent” positions in DRR from 503 by 54%, that by 272 such employees. FDIC terminated the employment of 193 under its buyout and RIF procedures, and transferred 76 person to the DSC, where many of them were obliged to take a lower grade. The remainder of three was accomplished through normal attrition in DRR.
G. The Expert Reports
Dr. Seberhagen, analyzed the effect of the 2005 downsizing by including all employees shown as having RIF re- lated separation codes during 2005. Ex. 1, para. 10. The analysis thus included both the “voluntary” severance buy-outs that were effective on or before May 2, 2005 and the involuntary terminations of September 2, 2005. Dr. Seberhagen found that, for career employees, the separation rate for those over 50 was 153.8% of the separa- tion rate for those under 50. The difference is statistically significant at the 3.16 standard deviation level. Ex. 1, p. 6.
Dr. Seberhagen also included employees hired into “Corporate University” and other parts of the FDIC. Of 214 employees hired in 2005 as the RIF's continued, 201 (93.7%) were under 50. Ex. 1, p. 6. Fifty-six (56) of the new hires were hired into the “Corporate University” division as trainees. See Ex. 13.
Dr. Jeanneret examined the mean age of DRR employees at various times from 2000 to too5. He did not exam- ine the effect of the 214 new hires made in 2005 on the average age of the agency as a whole. Instead, he looks solely at the age of the DRR which had only 4 new hires.
Dr. Jeanneret does not offer any analysis of the 2005 downsizing that includes the impact of the entire downsiz- ing, including the buy-outs and cross over demotions and the new hiring that occurred between October 2004 and May 2005.
The reply report of Dr. Jeanneret states in footnote 4 that “I consider DRR employee generated decisions to be a matter of choice and the fact that circumstances (i.e., the knowledge that DRR must reduce its work force) may influence the decisions does not alter my opinion.” p. 11 fn 4. By doing so Dr. Jeanneret ignores the fact that the greatest adverse impact against employees over 50 was caused by the “voluntary” termination of at least 112 employees over the age of 50.
The “battle of the experts” thus amounts to a factual question whether the VESP and crossover demotions were part of the 2005 downsizing or whether the September 2, 2005 involuntary terminations should be analyzed without regard to the rest of the process.
H. Plaintiffs Took the Buyout for Fear of Termination

Plaintiffs submitted 23 declarations of class members in support of the Motion for Class Certification. Exs B1-23 to Plaintiffs' Motion for Class Certification. Almost all of the declarants aver that they accepted the sever- ance package or the crossover demotions for fear of involuntary termination. They took the buy out because they thought they would lose their jobs and felt it necessary to mitigate the harm. The Declaration of Carole Mann is typical: When I learned that the FDIC was offering a buyout, I accepted it to avoid being terminated and losing the addi- tional money offered by the buyout. At the time I accepted the buyout, I knew that the number of positions in the Division of Resolutions and Receiverships was going to be reduced to less than half of its numbers and that al- most all of the positions being eliminated were R&R Specialists and R&R Technicians
It is undisputed that plaintiff Haag took his cross-over demotion after he had already been advised that his posi- tion was “surplus.” He took a demotion and moved to a different city because his job was eliminated, not be- cause he volunteered.
III. PROCEDURAL HISTORY
Plaintiffs gave notice to the EEOC and the Agency on October 31, 2005 of the intent of Barbara Aliotta and oth- er former and current employees to file suit against the FDIC. Additionally letters were sent from October 31, 2005 thru February 21, 2006 adding other current and former employees as plaintiffs.
This suit was filed on December 5, 2005. Plaintiffs promptly filed a motion for class certification under Rule 23. After full briefing, the District Court granted the motion by Memorandum Opinion and Order of July 25, 2006.
In that ruling, the District Court noted that the Plaintiffs fall into two categories, those that accepted an offer or lower grade and those the FDIC terminated without regard to the buyout. Memorandum Op at 5. The Court con- cluded that “the plaintiffs and class members that accepted an offer... and who were terminated pursuant to the RIF presents sufficiently common questions regarding the FDIC's practices and downsizing; specifically wheth- er the downsizing programs were implemented in a discriminatory fashion.” Memorandum Op at 9. In addition the Court ruled that that factual issue “predominates because the evidence used will be common among the plaintiffs and potential class members.” Memorandum Opinion 12 and 13.
After the notice of class certification, five members of the class opted out. In addition, three former employees of the FDIC joined this action as plaintiffs. Of the 52 plaintiffs, 16 of the plaintiffs were in the group of the 27 members of the class who were 50 and older. Greg Haag is a member of the class of the employees who accep- ted a reduction in grade. The remaining 35 plaintiffs are members of the class of 112 that accepted earlier retire- ment than intended because fo the downsizing program.
Discovery ended on January 25, 2008. The cross motions for summary judgment were filed on February 25, 2008. This memorandum in opposition is addressed to the Defendant's Motion for Summary Judgment.
IV. ARGUMENT
Plaintiffs have produced direct and undisputed evidence that the 2005 downsizing was designed to achieve a cost savings by eliminating experienced workers so that money would be available to start a “Corporate University” program to train new workers. Instead of creating opportunities for the older workers declared “surplus” as part of the downsizing, or halting the involuntary terminations after the “voluntary” buy outs had achieved the entire agency wide headcount reduction goal more than a year ahead of schedule, defendant made a deliberate

choice to fire plaintiffs. Almost all of the plaintiffs had long records of performing well, most of them in mul- tiple roles, and many of them in the specific roles for which the new people are being trained. All of them are over 50. Not surprisingly, more than 90% of the 214 new employees hired in 2005, as the RIF's were proceed- ing,were under 50 years old. None of the new trainees in Corporate University has finished the four year pro- gram necessary to prepare them for the functions many of the plaintiffs could have done right away.
The program of replacing older workers with younger ones was approved and announced by Chairman Powell - a man who proudly proclaims that he prefers to surround himself with young people because they have all of the innovative ideas. Stronger direct evidence of age discrimination is rare.
The direct evidence is supplemented by a strong statistical showing of adverse impact. It is undisputed that the 2005 downsizing was designed in 2004 to achieve a reduction in headcount by the end of 2005 through a com- bination of incentives (the carrot) and the threat and reality of involuntary terminations (the stick). The program of offering buy-outs until May 2005 cannot be viewed in isolation as it was part of the same plan to cut the ranks at the oldest divisions of the Agency - the DRR and DIRM. The involuntary terminations of September 2, 2005 and the “voluntary” severance program (VESP) were two parts of the same downsizing. They must be analyzed as such. Similarly, no analysis is complete without considering the fact that defendant hired 214 younger em- ployees in 2005, even as it was downsizing the divisions with the oldest employees, and even after it had achieved its agency wide target headcount reduction by early 2005.
The pending cross motions for summary judgment raise two significant issues: 1) Whether the 2005 downsizing should be analyzed as a single plan to reduce headcount using both the “carrot” of buy-outs and the “stick” of RIF notices, limited cross-over opportunities and, ultimately, involuntary termination?
Defendant argues that employees who accepted the “voluntary” severance plan (VESP) offered from November 2004 through May 2005 or the opportunity for “crossover” demotions should not be considered in assessing the adverse impact of the 2005 downsizing even though it admits that the purpose of the VESP and crossover oppor- tunities was the same as the purpose of the involuntary terminations - to eliminate employees from older divi- sions by the end of 2005 so that the budget for those positions could be used to hire trainees and staff for the “coporate university.” Defendant admits that employees were provided specific [FN3] RIF plans with the sever-
ance package in October 2004 and that the “voluntary” severance was available onl if they resigned by May 2, 2004. Yet defendant argues that the decision to take the VESP or crossover opportunities was entirely voluntary. Defendant's expert limits his “average age” analysis to the population of the DRR and limits his examination of the 2005 downsizing to the events of a single day - September 2, 2005 - when the involuntary terminations be- came effective.
FN3. The plans called for all jobs to be declared “surplus” so that the incumbency advantages would be lost. They were specific enough to allow employees to see who they would be competing against for the newly created titles (doing their old jobs) and whether they would have a meaningful chance of compet- ing for the jobs under the RIF rules.
Defendant's argument is contrary to the established rule of law that an employee does not act voluntarily when he is given a choice between a severance package and the likelihood of involuntary termination without the sev- erance benefit - “an offer he can't refuse.” See Adams v. Ameritech Services, Inc. 231 F.3d 414, 433 (7th Cir 2000); Henn v National Geographic, 819 F.2d 824, 826 (7th Cir. 1987); Bodnar v. Synpol, Inc. 843 F.2d 190 (5th Cir. 1988). The rule applies in this Circuit to federal agency downsizing. The proper “practice” to analyze

for either disparate impact or proof of pretext is the whole downsizing program - with the “carrot” and the “stick.” It is error to look at a voluntary buy out program in isolation from a threat of involuntary RIF's that is designed to motivate employees to “volunteer” to leave. See Schmid v. Frosch 680 F.2d 248, 250 (D.C. Cir. 1982). As the 23 plaintiff declarations make clear, the decision to give up their jobs in exchange for half a year's severance pay and an early retirement package that was a small fraction of full retirement was made under expli- cit threat of termination with no severance. It was anything but voluntary.
2) Whether the defendant FDIC has met its burden of production to show that the adverse impact of the 2005 downsizing was the product of a “reasonable factor other than age.” (RFOQ)? If defendant has met that burden, then the cross motions for summary judgment should be denied and the case should go to a jury. If it has not, summary judgment for plaintiffs is required.
Defendant, as a federal employer, bears the burdens of production and persuasion to rebut plaintiffs showing of disparate impact by demonstrating the that downsizing was justified by a reasonable factor other than age. De- fendant can establish the affirmative defense of RFOQ only if it produces evidence that meets the “business ne- cessity standard.” 29 CFR 1625.7(d). The RFOQ standard for federal employers under the ADEA is not the same as the standard for private employers that is presently before the Supreme Court. Compare, 29 C.F.R. 1625.7(d)(and (e), with, Meachum et al v. Knolls Atomic Power Lab, 461 F.3d 134 (2d Cir. 2006) cert granted, 128 S.Ct. 1118 (2008), S. Ct. No. 1505. Defendant has offered only the vaguest of reasons for: a) the recom- mendation of the Task Force; b) for deciding to increase the cuts in DRR recommended by the Task Force and; c) for deciding to go forward with involuntary terminations in DRR even after the agency had met its two year headcount reduction goal during the first few months of the downsizing program. There is at least a disputed is- sue for trial on this point.
A. Plaintiffs Raise Substantial Evidence of Discrimination
1. Plaintiffs Have Substantial Evidence of Age Discrimination
In order to deteat the present motion tor summaryjudgment, plaintiffs must only raise a disputed issue of materi- al fact. Plaintiffs contend that the undisputed facts of record are sufficient to prove that defendant, through its 2004-05 downsizing program terminated the employment of every member of the plaintiff class in violation of the ADEA. Plaintiffs have cross- moved for summary judgement accordingly. The evidence is more than suffi- cient to allow a reasonable juror to find for the plaintiffs.
Summary judgment may be granted only if the “pleadings, depositions, answers to interrogatories, and admis- sions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”” Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247- 48, 106 S.Ct. 2505, 91 L.Ed.2d. 202 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir. 2006). ““A fact is “material” if a dispute over it might affect the outcome of a suit under governing law; factual dis- putes that are “irrelevant or unnecessary” do not affect the summary judgment determination.”” Holcomb, 433 F.3d at 895 (quoting Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505). An issue is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505; Holcomb, 433 F.3d at 895.
Breen v. Peters 474 F.Supp.2d 1, 7 (D D.C. 2007).

Plaintiffs have produced substantial evidence that the 2005 downsizing had a disparate impact. Both within the DRR and across the FDIC as a whole, workers over 50 were more likely to be harmed by the downsizing than workers under 40. The disparity is statistically significant at the 95% level - it cannot be explained by random selection. As explained below, defendant, as a federal employer, bears a heavy burden to prove an affirmative defense of business necessity to justify the RIF. The evidence it offers does not even meet the lighter burden of production on a “reasonable factor other than age” that a private employer would have to meet in order to present the issue to a jury under Smith v City of Jackson, 544 U.S. 228 (2005); Meachum et al v. Knolls Atomic Power Lab, 461 F.3d 134 (2d Cir. 2006) cert granted, 128 S.Ct. 1118 (2008), S. Ct. No. 1505. It does not begin to meet the heavier burden imposed on federal employers.
Plaintiffs also offer substantial evidence of disparate treatment - that the 2005 downsizing was motivated by and carried out with the intent to eliminate older workers and replace them with younger ones. This is a “mixed case” involving both direct evidence of discriminatory intent and strong evidence that the downsizing rationale was nothing more than a pretext to eliminate older workers to make room for a new training program.
Plaintiffs have produced material direct evidence that Chairman Powell preferred to surround himself with young people due to his belief that they have all of the innovative ideas. Plaintiffs have produced material direct evidence that Chairman Powell approved and announced the 2005 downsizing for the purpose of using the cost savings to create a “Corporate University” and to hire trainees who would learn, after four years on the payroll, to do the jobs many of the plaintiffs had been doing for decades.
Apart from the direct evidence that the program was intended to replace older workers with younger ones, plaintiffs offer a statistical showing of adverse impact that is more than sufficient to support an inference of in- tentional discrimination under the “pretext” element of the Reeves burden shifting framework. Reeves v. Sander- son Plumbing Products, Inc., 530 U. S. 133 (2000) Usually, proffering ““evidence from which a jury could find that [the employer's] stated reasons ... were pretextual ... will be enough to get a plaintiffs claim to a jury.”” Carpenter v. Fed. Nat'l Mortgage Ass'n, 165 F.3d 69, 72 (D.C.Cir.1999) (citing Aka v. Wash. Hosp. Ctr. 156 F.3d 1284 (D.C.Cir.1998) (enbanc)).
George v. Leavitt 407 F.3d 405, *413, 366 U.S.App.D.C. 11, **19 (C.A.D.C., 2005)
The evidence of intent is sufficient to raise a material issue of fact on the question of intent. Inasmuch as a determination of someone's state of mind usually entails the drawing of factual inferences as to which reasonable people might differ-a function traditionally left to the jury-summary judgment often will be an inappropriate means of resolving an issue of this character.
Swierkiewiczv. Sorema, N.A., 534 U.S. 506, 510-11, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Breen v. Peters 474 F.Supp.2d 1, *8 (D.D.C.,2007).
B. The 2005 Downsizing Was A Single Practice
As this Court noted, in ruling on class certification, there is a material factual question on the scope of the downsizing that should properly be analyzed for adverse impact. That the issue is material and in dispute is enough to defeat the present motion.
The parties fundamentally disagree regarding the discriminatory practice at issue in this action. Plaintiffs con- tend that the undisputed facts of record establish that the 2005 downsizing was a single plan, developed in late

2004, that was intended to reduce the headcount of experienced employees throughout the FDIC - and most severely in the DRR and DIRM - so that the cost savings in the budget could be used to establish a new “Corporate University,” to hire trainees to attend it and to hire younger employees throughout the agency - even as the involuntary terminations proceeded. Defendant, while admitting that the VESP and the crossover oppor- tunities were part of a plan to reduce headcount by the end of the year, argues that the involuntary component of the downsizing (the RIF) must be analyzed separately from the decision to undertake the downsizing, the de- cision to spend the money on new trainees and the VESP and crossover programs that were designed to and did encourage employees to “voluntarily” relinquish their jobs after being notified of the impending RIF.
To defeat the present motion, plaintiffs need only show that there is sufficient evidence in the record from which a finder of fact could conclude: 1) That the “carrot” of the VESP and crossovers was part of the same downsiz- ing program as the “stick” of the RIF for disparate impact analysis; and 2) That the VESP and crossover plaintiffs were harmed by the decision to downsize and the consequent reality of an impending RIF.
1. The Downsizing was a Single Practice for Adverse Impact Analysis - Statistical Analysis Looks at All Employees Targeted by the Same Decisionmaker
The Court of Appeals for the DC Circuit has made it clear that it is improper to limit that analysis of the effects of a downsizing plan to the people who suffer involuntary terminations. Rather, the proper statistical analysis looks at all employees harmed by the RIF. Schmid v. Frosch 680 F.2d 248, 250 (D.C. Cir. 1982)[FN4] Indeed, the Court of Appeals for the D.C. Circuit has recently made it clear that a challenge to a single practice, carried out by related acts over time, should not be fractured into multiple “discrete” acts of discrimination - even after the rulings in National Railroad Passenger Corporation v. Morgan, 536 U.S. 101 (2002) and Ledbetter v. Goo- dyear Tire & Rubber Co., Inc., 127 S.Ct. 2162 (2007). See Schuler v. PwC LLP, 2008 WL 360923, Slip Op. at 26 (D.C.Cir. Feb 12, 2008).
FN4. The rule is the same in other Circuits. Currier v. United Technologies Corp. 393 F.3d 246, 254 (1st Cir. 2004)(upholds Jury reliance on expert who analyzed effect of RIF on entire workforce of 183, not just the 44 positions ultimately selected as RIF targets); Tyler v. Union Oil Co. of California 304 F.3d 379, 392 (5th Cir. 2002)(proper to analyze all employees who received a “redeployment package” as harmed by a RIF); cf Blair v. Henry Filters, Inc. 505 F.3d 517, *530 (C.A.6 (Mich.),2007)(analyzing pattern of terminations resulting in downsizing as a single practice for inferring intent).
The ruling in Scmid has been codified in EEOC regulations which, as discussed below, are binding on federal agency employers like defendant. 29 C.F.R. 1625.22. Those regulations define an “exit incentive program” and “other employment termination programs” for purposes of the waiver provisions of the 1990 amendments to the ADEA known as the OWBPA. While there is no contention in this action that any plaintiff signed a binding waiver[FN5] of his right to bring this action, the definitions specify the information on adverse impact an older worker must receive in order to make a waiver of his right to sue for age discrimination binding. In other words, they define what constitutes sufficient notice of the adverse impact of a downsizing program to make a waiver binding. They are highly relevant to determining what constitutes a termination program in the context of this case.
FN5. The evidence defendant offers does not come close to the statutory requirements for waiver of plaintiffs' right to challenge the action as non-voluntary. See, 29 USC 636(f)(1)(H); Adams at 430-431. The Request for Personnel Action, Form 52, cited by Defendant at Ex. 8, does not support its proposi-

tion that “plaintiffs who acknowledged to take the buyout expressly acknowledged on their buyout application forms that they submitted their applications voluntarily.” Def. Mtn. at 24-5. While page 3 of the four page Exhibit does recite that the “Nature of Action” as “Retirement-Voluntary,” that computer- generated seemingly standard language, not put there by any plaintiff, cannot be deemed an express ac- knowledgment that accepting a buy-out is in fact “voluntary,” as much as the FDIC would like to classi- fy it as such.
The EEOC regulations resolve two of the key differences between the analysis offered by plaintiffs' expert, Dr. Seberhagen, and defendant's expert, Dr. Jeanneret:
1) Under the regulations, a “decisional unit” for an employer who analyzes operations at several facilities, or divisions, includes the entire workforce at all of the facilities considered. 29 C.F.R. 1625.22(f)(3)(ii)(E). In this case, the decisional unit is the FDIC because the incentive for a buyout was offered to all or almost all of the employees of the FDIC were offered the incentive to leave the employment of the agency. The agency-wide unit is also appropriate in light of the decision to hire new, younger employees in other divisions even as older em- ployees were being fired from the DRR as “surplus.” Similarly, all of the decisions made by the FDIC were made at its headquarters in the District of Columbia, so that the 2005 program had only one decisional unit. 29 C.F. R. 22(d)(3) and 22(f)(iii)(B) and (C) and (iv) (3).
2) Under the regulations, a downsizing program that takes place in increments over time, requires the employer to provide cumulative information to make later waivers binding. 29 C.F.R. 1625.22(f)(3)(vi). Similarly, a single “program” can include both voluntary and involuntary components. 29 C. F. R. 1625.22(d)(3). In other words,” voluntary” exit incentives followed by involuntary terminations must be analyzed together when they are all part of a single program designed to achieve a force reduction goal.
Contrary to defendant's assertions, there is no rule of law requiring a change in the average age of some com- ponent of the employer's workfo rce in order to prove age discrimination.[FN6] The question is whether age played an impermissible role in the decision, not whether enough people were laid off or hired in a particular part of a unified program to change the average age of the workforce in a part of the impacted workforce. Thus, in Blair v. Henry Filters, Inc. 505 F.3d 517, 530 (6th Cir.2007), the court rejected both parties' assertions regard- ing the impact of a series of terminations on the average age of employees because neither one properly defined the groups for comparison.
FN6. Bender contains no such rule. Defendant's reliance on Ridenour v. Lawson Co. 791 F.2d 52, *57 (C.A.6 (Ohio), 1986) is similarly misplaced. There, the plaintiff did not proffer any statistical analysis so that the defendant's evidence that the RIF cause no adverse age impact stood unrebutted
It is the impact of the downsizing program and the intent of the decision maker in designing and implementing the program that is relevant to adverse impact analysis. Id. See also, Ex. 1. The proper decisional unit and tem- poral unit is, therefore, defined by the facts of the case. Where the Chairman and leading executives of an agency decide to eliminate employees throughout the agency in order to achieve a specified numerical reduction by the end of the budget year, the proper decisional unit is the agency and the proper temporal unit is the budget year. The question for analysis is the one Dr. Seberhagen addressed: Whether younger workers fared substan- tially better in the overall 2005 downsizing than their older peers. The answer is unequivocally “Yes.”
2. All Plaintiffs Were Harmed by the 2005 Downsizing Program

The ADEA prohibits discrimination in the terms and conditions of employment, not just in termination decisions. When an employer forces its employees to choose between two options - both of which leave him in a worse position - the employee who chooses the lesser harm is still a victim of age discrimination. Indeed, the employee is arguably obligated to mitigate his damages by taking the lesser harm. The employee who accepts a demotion or a severance package in order to avoid the likely prospect of involuntary termination without sever- ance is simply mitigating the harm he will suffer by reason of the downsizing program. Their decisions to accept demotions to lower paying and lower status jobs were taken in the face of this possibly discriminatory action. These plaintiffs were not faced with a truly voluntary choice: because they were already on the ““at risk”” lists, they knew that they sat between the Scylla of a better job but with low security, and the Charybdis of a lesser job but with high security. If the plaintiffs succeed in demonstrating that the RIF was in- fected with and motivated by age discrimination, then they should be allowed to proceed with their claim that their decisions to accept demotions were the result of the same discrimination.
Adams v. Ameritech Services, Inc. 231 F.3d 414, 433 (7th Cir 2000).
The undisputed evidence of the circumstances of the choice is more than sufficient to raise a triable issue of fact whether the plaintiffs who took the VESP incentive or who took crossover demotions were harmed by the downsizing. Most class members were faced with a choice of “voluntary” early retirement; applying for a “voluntary” demotion; or competing for positions that they had less than a 50% chance of obtaining. Plaintiffs who accept a buy out or demotion under such circumstances are as much victims of the unlawful Buy Out and RIF Program as the plaintiffs who refused the buy out and suffered involuntary terminations in September 2004.
An employee “voluntarily” accepts a severance package when he is given the choice of maintaining the status quo, or taking an additional benefit. An employee does not act voluntarily when he is given a choice between a severance package and the likelihood of involuntary termination without the severance benefit - “an offer he can't refuse.” Henn v National Geographic, 819 F.2d 824, 826 (7th Cir. 1987); Adams, supra. A severance offer violates the ADEA where the employer “manipulated the options so that they were driven to early retirement not by its attractions but by the terror of the alternative. If the terms on which they would have remained at [their employer] were themselves violations of the ADEA, then taking the offer of early retirement was making the best of things, a form of minimization of damages.” Adams, 432. The Henn Adams standard has been adopted by every opinion identified by either party to this case. Rowell v. BellSouth Corp. 433 F.3d 794, 805 (11th Cir. 2005); Burks v. Oklahoma Pub. Co. 81 F.3d 975, *978 (C.A.10 (Okl.),1996), cert denied 519 US 931 (1996); Mitchell v. Mobil Oil Corp. 896 F.2d 463, *467 (C.A.10 (Colo.), 1990); Henn v. Nat'l Geographic Soc'y, 819 F.2d 824 (7th Cir.), cert. denied, 484 U.S. 964, 108 S.Ct. 454, 98 L.Ed.2d 394 (1987); Schuler v. Polaroid Corp., 848 F.2d 276 (1st Cir.1988); Bodnar v. Synpol, Inc. 843 F.2d 190, *192 -193 (5th Cir. 1988)(opinion dir- ects verdict for defendant).
In the present case, the “buy out” was involuntary because employees were faced with “an offer you can't re- fuse.” They could take the early retirement or face a greater than 50% prospect of involuntary termination with no early retirement or incentive payment.
All plaintiffs were faced with the reality that the would lose their positions and that, unless they took “voluntary” alternatives, they would have to compete for newly re-named jobs in a game of musical chairs that less than half of the workforce would survive. Most of the plaintiffs were provided with charts and other inform- ation by which they could gauge their chances of surviving the game in light of veteran's preferences, the de- cision to keep all higher grade managers and the decision to limit cross-over opportunities. All plaintiffs were

faced with the further knowledge that they would receive severance payments if the “voluntarily” resigned, but would receive no severance if they chose to compete for the available jobs.
C. The 2005 Downsizing Violated the ADEA
Plaintiffs offer three parallel and cumulative kinds of evidence of unlawful discrimination:
First, the design of the 2005 downsizing and the admission by Chairman Powell that he prefers younger workers constitute powerful, direct evidence of discrimination. Such evidence supports a finding of age discrimination unless the defendant can show that it would have designed the same program even if it had not been rying to re- place the older workers with younger ones. Price Waterhouse v. Hopkins, 499 U.S. 228 (1989); Hopkins v. Price Waterhouse, 920 F.2d 967, 972, 287 U.S.App.D.C. 173, 178 (1990). Such a showing would require extensive evidence of a business necessity for the downsizing which is entirely absent from the present record.
Second, it is not disputed that the overall effect of the 2005 downsizing was to eliminate older workers from the DRR and from the FDIC at a significantly higher rate than younger workers were eliminated. Such a showing of disparate impact is sufficient to prove unlawful age discrimination even without evidence that the discriminatory result was intended. Smith v City of Jackson, 544 U.S. 228, 239, 243 (2005). Once again, the defendant would have to make a strong showing that eliminating older worker head count in order to shift part of the budget to new employee training was required by a reasonable factor other than age that amounts to business necessity. It has made no such showing.
Finally, to the extent an inference of discrimination is required to defeat defendant's motion, the record supports such an inference and provides ample evidence of pretext. There is no question that older workers fared worse than younger worke's in the downsizing. There is strong evidence that the downsizing was undertaken to make room for new trainees who will, presumably, perform duties plaintiffs could have performed, once they finish the training the plaintiffs completed many years before. The 2005 downsizing was motivated not by a need to cut costs, but by a desire to shift budget priorities. Defendant has offered no study, analysis or other evidence to support the notion that a 50% cut in the DRR workforce was required for the efficiency of the agency opera- tions. Indeed, the decision appears to have been made without any consideration of the functions of the jobs. Oddly, almost all of the younger, but more expensive management employees were retained while most of the senior, cross trained and less expensive workers were declared “surplus.” The fact that defendant went forward with plans to fire more than 50 DRR employees even as it hired 214 new employees into other divisions, and even after the agency wide headcount reduction had been accomplished is difficult to explain by any reason oth- er than age discrimination. Defendant has offered no explanation to account for that decision.
1. Direct Evidence
There is no need to infer age discrimination when there is direct evidence. The McDonnell Douglas/Reeves bur- denshifting analysis is, therefore, “inapplicable whee the plaintiff presents direct evidence of discrimination.” See, e.g., Trans World Airlines, Inc. v Thurston, 469 U.S. 111, 122 (1985); accord, AARP v. Farmers Group, Inc., 943 F.2d 996, 1000 n. 7 (9th Cir.1991). Direct evidence, in the context of an ADEA claim, is defined as “evidence of conduct or statements by persons involved in the decision-making process that may viewed as dir- ectly reflecting the alleged discriminatory attitude ... sufficient to permit the fact finder to infer that that attitude was more likely than not a motivating factor in the employee's decision.” Enlow v. Salem-Keizer Yellow Cab Co., Inc., 389 F.3d 802, 812 (9th Cir. 2004), citing, Walton v. McDonnell Douglas Corp., 167 F.3d 423, 426 (8th Cir. 1999) (alteration in original, emphasis added) (quoting Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444,

449 (8th Cir. 1993)); see also, Frank v. United Airlines, Inc., 216 F.3d 845, 854 (C.A.9 (Cal.),2000), citing, Ger- dom v. Continental Airlines, 692 F.2d 602, 608 (9th Cir.1982) (en banc).
2. The 2005 Program Had a Significant Disparate Impact
Whether an employer had a discriminatory intent is one for the finder of fact. Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133 (2000). However, plaintiffs no longer need to prove discriminatory intent in order to obtain relief. Smith v. City of Jackson, 544 U. S. 222 (2005). To establish aprimafacie case of disparate im- pact, the petitioners must show that an agency practice or policy, while neutral on its face, disproportionately impacted members of the protected class through a presentation of statistical evidence that demonstrates a stat- istical disparity that is linked to the challenged practice or policy. Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 994 (1988). Specifically, the plaintiffs must 1) identify the policy or practice challenged; 2) show the statistical disparities, as shown in Dr. Seberhagen's reports, and 3) show that the disparity is linked to the chal- lenged policy or practice.
A prima facie showing of adverse impact shifts the burden to the FDIC to show that the adverse impact was a attributable to a “reasonable factor other than age” Smith, 544 U.S. 228, 239, 243 (2005). Because the FDIC is a federal employer, the RFOQ is an affirmative defense whose proof is governed by the binding regulations of the EEOC. Those regulations require that practices with a significantly significant adverse impact on older workers must be justified by business necessity. See infra. Defendant has not even come close to such a showing on the present record. The motion for summary judgment should be denied.
“Statistical analyses have served and will continue proving an important to serve an important role in cases in which the existence of discrimination is a disputed issue.”Teamsters v. United Sates, 431 U.S. 324, 339 (1977); Palmer v. Schultz, 815 F.2d 84 (D.C. Cir. 1987);
Adams et al. v. Ameritech Services, Inc., 231 F.3d 414 (7th Cir. 2000).
Statistical proof is highly probative of disparate impact. The Supreme Court has recognized that a disparity of more than two or three standard deviations in a large sample makes “suspect” the contention that the differential occurs randomly. See, Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 308 n. 14, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977); Castaneda v. Partida, 430 U.S. 482, 496 n. 17, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); Palmer v Shultz, 815 F.2d 84 (D.C. Cir. 1987). Just as proof of disparate impact creates a Title VII claim, so too, it creates a claim under the ADEA. Smith et al. v. City of Jackson, 544 U. S. 228 (2005).
The Court of Appeals for the DC Circuit has made it clear that it is improper to limit that analysis of the effects of a RIF to the people who suffer involuntary terminations. Rather, the proper statistical analysis looks at all em- ployees harmed by the RIF. Schmid v. Frosch 680 F.2d 248, 250 (D.C. Cir. 1982).
The disparity Dr. Seberhagen, (Pl. Exh. 1), is more than sufficient to require defendant to explain how such a discriminatory result could have been caused by a reasonable factor other age. It has not done so. Plaintiffs have made a sufficient showing of disparate impact to support summary judgement.
Defense counsel, in attempting to justify its expert's analysis (p. 35), confuses several concepts relevant to stat- istical analysis.
Statistical significance does not measure the size of a difference in age. A difference in age of one month might

be statistically significant across a large sample, even if it has little legal significance. Rather, statistical signific- ance is a measure of the deviation of the observed result from the result predicted by an age neutral model. In 100 coin flips, a neutral model would predict 50 heads and 50 tails, but random variation might lead to 30 heads and 70 tails. A result of 98 heads and 2 tails leads to a strong inference of non-random influence because it is so far from the expected distribution.
A disparity is “statistically significant” if the result is so far from the result predicted by random selection that chance can be ruled out at the 95% certainty level. In other words, the result is 95% likely to have been caused by a nonrandom influence. This typically occurs when the observed result is more than two “standard devi- ations” from the expected result. See, Haze Sch. Dist. v. United States, 433 U.S. 299, 308 n. 14, 97 .Ct. 2736, 53 L.Ed.2d 768 (1977); Castaneda v. Partida, 430 U.S. 482, 496 n. 17, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); Palmer v Shultz, 815 F.2d 84 (D.C. Cir. 1987).
Failure to account for “statistical significance” as a way to rule out random variation as an explanation of an ob- served disparity in age detracts substantially from the probative value of a statistical analysis. Bender v Hecht's Dept Stores, 455 F.3d 612 (6th Cir. 2006), cert denied 127 SCt.2100 (2007). Similarly, a statistical analysis of a RIF selection process that relied on store sales and manager competence ratings, must account for those factors absent evidence that they were not reasonable factors other than age used in making the decision. Id. Failure to account for defendant's stated reasons eliminates any use of the analysis to show pretext. Id.
Plaintiffs have demonstrated that the difference between the RIF related termination rate for FDIC workers over 50 and the comparable rate for workers under 50 over the course of 2005 is statistically significant. Random variation does not account for the age bias. Defendant has offered no factor other than age discrimination that accounts for the observed difference.
i. EEOC Regulations Defining Terms Under the ADEA Are Binding on Federal Agency Employers.
Under Executive Order 12106 (1978) the EEOC is ‘responsible for directing and furthering implementation of the Policy ....to provide equal opportunity in Federal employment for all employees...and to prohibit discrimina- tion in employment because of ....age.” See Sec. 3. That Order also directs the Commission “to issue such ...regulation ....and instructions....”, and states that “The head of each department or agency shall comply with the ... regulations ...and instruction by” the Commission. E. O. 2106 at Sec. 3, 4, and 5. See also, Reorganization Plan No. 1 of 1978, 43 FR 19807.
ii. Reasonable Factor Other Than Age is an Affirmative Defense
The Regulation of the EEOC states: “When the exception of a ‘reasonable factor other than age is raised...the employer bears the burden of showing that the ‘reasonable factor other than age’ exists. 29 C. F.R. 1625.7(e). The regulation is consistent with the statute and is binding on defendant. Defendant bears the burdens of produc- tion and persuasion on RFOQ.
Under the ADEA, the “reasonable factor other than age' is an exception to the Act, 29 U. S. C. 626(b)(4); 29 C. F. R. 1625.7.
The burden of proving justification or exemption under a special exception to the prohibitions of a statute nor- mally rests on the party who claims its benefits. FTC v. Morton Salt Co., 334 U. S. 37, 44-45 (1948). Accord: Shaffer ex rel. Schaffer v. Weast, 546 49, 57 (2005).

Congress placed the “reasonable factor other than age exception” in 29 U. S. C. 626(f)(1), together with the bone fide occupational qualification” or BFOQ, exception.Id The BFOQ exception to the prohibition on age discrimination in the ADEA is an affirmative defense to the employer who claims its benefits. Western Air Lines, Id., 472 U. S. 400, 416-417& n. 24 (1985). In that case, the Court noted that an EEOC regulation so provided, and was consistent with the legislative history of the ADEA. Id.
The normal construction of such placement is that Congress intended the same burden for the “reasonable factor other than age” exception. See cases cited above. In any event, the EEOC regulation should control, particularly with respect to Federal agencies, in light of E. O. 12016.
In this case, Defendant has not offered evidence to show a defense based upon “a reasonable factor other than age” Sec. 4(f)(1) of ADEA, 29 U. S. C. 626(f(1); 29 C. F.R. 1625.7.
iii. Only a Showing of Business Necessity Can Justify a Significant Adverse Impact Against Older Federal Employees
The ADEA Regulations of the EEOC provide that when an employment practice by an employer causes an “adverse impact” against “individuals within the protected age group, it can only be justified as a business ne- cessity.” 29 C.F.R. 1625.7(d), and (e).
In this case, the Defendant Agency offers no proof of the existence of any such factor, but contended itself with a vague statement that it had good business reasons for carrying out the program.
The Regulations of the EEOC expressly provide that when,,,such a practice has an adverse impact on individuals within the protected age group, it can only be justified as a business necessity.” 29 C.F. R 1625.7(d). As Justice Scalia states in his concurring opinion, in Smith et al. v City of Jackson, 544 U. S. 228, 244 (2005), the regula- tion represents EEOC and Department of Labor policy going back to at least 1970, and should be accorded great deference even in the case of private employers for whom the interpretation is non-binding. That the standard applies to federal employers for whom the regulation is binding follows a fortiori.
The Supreme Court has accepted certiorari in a case raising the applicability of the business necessity concept to the RFOQ defense under the ADEA. Meachum et al v. Knolls Atomic Power Lab, 461 F.3d 134 (2d Cir. 2006) cert granted, 128 S.Ct. 1118 (2008), S. Ct. No. 1505. Argument is scheduled for April 23, 2008. The employer in that case is however not a Federal Department or Agency, so that the Regulation of the EEOC is not binding on the employer, as it is in this case.
iv. It is well established that ADEA claims against a federal agency are cognizable
Contrary to Defendant's assertions, it is well settled that disparate impact claims against the government are cognizable. See, e.g, Smith, et al. V. City of Jackson, 544 U.S. 228 (2005); Breen v Peters, 474 F.Supp.2d 1, 6-7 (D.DC 2007); Cameron v. U.S.P.S., EEOC Appeal No. 07A40130 (Sept. 20 2005), reh 'g denied, EEOC Request No. 05A60099 (Dec. 22, 2005); McCullom, et. al. v. Dept. of Transportation, EEOC Doc 07A60055 (Oct. 26, 2006); but c.f, Def. Mtn (III.B.2.)
v. Limits On Civil Service Protections Do Not Limit ADEA Remedies
Defendant relies on Terban v Dept of Energy, 216 F.3d 1021 (Fed. Cir. 2000) for the proposition that a retire- ment is “presumed voluntary.” Terban did not make a claim of age discrimination under the ADEA and was not

subject to the choice of taking a “voluntary” incentive or facing a high risk of involuntary termination under a RIF. The “presumed voluntary” retirement rule is well established in appeals from MSPB rulings. MSPB ap- peals a based on civil service rights under Title 5 of the United States Code. They proceed under an “arbitrary and capricious” standard. The standards for an MSPB appeal are irrelevant to analysis of the ADEA claim in this action. Federal employees enjoy parallel protections under Title 5 and the ADEA. See, Ikossi v. Department of Navy 2008 WL 540234, *3 _ F.3d _, (D.C. Cir. 2008) (Error to limit ADEA or Title 5 rights under “mixed case” processing statute, 5 U.S.C. §§ 7702(e)(1)); Strawberry v. Albright 111 F.3d 943, 947 (DC Cir. 1997)7
3. Disparate Treatment
The record also contains ample evidence from which a finder of fact could infer discriminatory intent under the burden shifting frameworks of Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Murray v. Gilmore 406 F.3d 708, 713, 365 U.S.App.D.C. 372, 377 (D.C Cir. 2005); Blair v. Henry Filters, Inc. 505 F.3d 517, *530 (C.A.6 (Mich.),2007.
Plaintiffs offer both direct evidence of Chairman Powell's discriminatory motive and strong evidence supporting an inference that the proffered explanation for declaring plaintiffs' jobs “surplus” was a pretext for age discrim- ination.
Usually, proffering ““evidence from which a jury could find that [the employes] stated reasons ... were pretextu- al ... will be enough to get a plaintiffs claim to a jury.”” Carpenter v. Fed. Nat'lMortgage Ass'n, 165 F.3d 69,72 (D.C.Cir.1999) (citing Aka v. Wash. Hosp. Ctr., 156 F.3d 1284 (D.C.Cir.1998) (en banc)).
George v. Leavitt407 F.3d 405, *413, 366 U.S.App.D.C. 11, **19 (C.A.D.C., 2005)
The fact that defendant continued to hire younger employees even as it fired older employees in the DRR is enough evidence of pretext to defeat the present motion. The overall design of the downsizing, the absence of any justification for the original goals set by the Task Force; the absence of any rationale for the expanded goal imposed by Bovenzi in 2004; and the irrationality of the decision to proceed with terminations in 2005 even after the severance program had scared enough employees into leaving to meet the expanded goal, when taken with the other facts of record, is more than enough to support a finding of pretext.[FN7]
FN7. Holds that general provisions of the ADEA do not nullify specific mandatory retirement age in the foreign service retirement act amended after the ADE A was passed. (“the ADEA's general prohibition of age discrimination does not prohibit enforcement of the mandatory retirement provisions” of the for- eign service retirement law.) Thus, the general absence of rights under Title V does not abrogate specif- ic rights under the ADEA.
Defendant claims that it is “undisputed that the FDIC followed US OPM regulations in conducting the RIF” Def. Mtn. 29 However, Defendant did not observe “bump” rights, or other preferences traditionally afforded to RIF victims.
Plaintiffs maintain that the Defendant Agency placed the names of some of the plaintiffs and other older em- ployees on a Re-employment Priority List, but the Defendant Agency filled any vacant positions with younger and less senior employees who were no better qualified than plaintiffs and no better qualified than other older workers such as Mr. Keller.[FN8]

FN8. Dennis Keller, who was on the FDIC's Re-employment Priority List as a separated employee. The FDIC rehired Mr. Keller in December 2006not during the fall of 2006. According to the remarks in the relevant Notification of Personnel Action, the “appointment [was] processed retroactively to rectify ad- ministrative oversight in applying FDIC RPL policy.” See attached: 1) FORM 50-Notification of Per- sonnel Action (noting a December 26, 2006 approval date, but an effective date of September 3, 2006); 2) Mr. Keller's attached W-2s for 2005 and 2006; and 3) redacted letter from Mr. Keller dated April 20. 2007. Dennis Keller passed away in July 2007, as FDIC's records should show. Mr. Keller accepted the job offered in the winter/December 2006, which was not offered in September 2006 in connection with the Reemployment Priority list.
V. CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that this Court deny Defendant's Motion for Summary Judgment.
Dated: March 10, 2008
Barbara ALIOTTA, et al and Others similarly situated, Plaintiffs, v. SHEILA BAIR, CHAIRMAN, Federal De- posit Insurance Corporation, Defendant. 2008 WL 2777695 (D.D.C. ) (Trial Motion, Memorandum and Affidavit )
END OF DOCUMENT

 
 Case 1:05-cv-02325-RMU Document 7 Filed 03/15/06 Page 1 of 32

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________

)

BARBARA ALIOTTA, et al

)

)

Plaintiffs,

)

)

v.

)

)

MARTIN J. GRUENBERG,

)

Acting Chairman,

)

Federal Deposit Insurance Corporation, )

)

Defendant.

)

____________________________________)

Case No. 1:05-cv-02325-RMU

DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS’ AMENDED COMPLAINT
Defendant Martin J. Gruenberg, in his official capacity as Acting Chairman of the Federal Deposit Insurance Corporation (“FDIC”), responds to Plaintiffs’ Amended Complaint as follows:
GENERAL DENIAL Pursuant to Rule 8(b) of the Federal Rules of Civil Procedure, Defendant asserts a general denial as to those allegations contained in Plaintiffs’ Amended Complaint that are not clearly and specifically admitted herein. SPECIFIC DENIALS AND RESPONSES Pursuant to Rule 8(b) of the Federal Rules of Civil Procedure, Defendant further responds to Plaintiffs’ Amended Complaint as follows by responding to the numbered paragraphs of the Amended Complaint:

Case 1:05-cv-02325-RMU Document 7 Filed 03/15/06 Page 2 of 32
1. Paragraph one of the Amended Complaint is Plaintiffs’ statement of their case, to which no response is required. Any statements of fact are denied.
2. Subject to Defendant’s contention that Plaintiffs have failed to exhaust administrative remedies or otherwise fulfill statutory prerequisites for some or all of their claims, Defendant admits the allegations of paragraph two of the Amended Complaint.
3. Defendant denies the existence of any claims or causes of action on the part of Plaintiffs, denies that it “established and applied the policies and practices” in this District that allegedly harmed the Plaintiffs and similarly situated employees, but admits that venue would be proper based on the allegations of paragraph three of the Amended Complaint that the offices of the named Defendant Acting Chairman Gruenberg and the Director of the Division of Resolutions and Receiverships are located in this District, and also admits the allegations that the FDIC made and maintained records concerning the Plaintiffs in this District and that some of the Plaintiffs served as employees of the FDIC in this District.
4. Defendant admits that the FDIC has received a copy of a letter dated October 31, 2005, from attorney David L. Rose to the EEOC stating his intent to file suit under the ADEA on behalf of the following eighteen (18) named Plaintiffs: Aliotta, Anderson, Avery, Cain, Catapat, Claude, Cline, DuPree-Ellis, Elrod, Everett, Glazener, Kebbeh, Keller, Lindsey, Moritz, Parker, Patterson and Shute. Defendant admits that the FDIC has received a copy of a letter dated November 10, 2005, from attorney David L. Rose to the EEOC stating his intent to file suit under the ADEA on behalf of the following additional two (2) named Plaintiffs: Brown and Wardell. Defendant admits that the FDIC has received a copy of a letter dated December 6, 2005 (not December 5 as alleged), from attorney David L. Rose to the EEOC stating his intent to file suit under the ADEA on behalf of the following additional named Plaintiff: Fairfield.
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Defendant admits that the FDIC has received a copy of a letter dated December 15, 2005, from attorney David L. Rose to the EEOC stating his intent to file suit under the ADEA on behalf of the following additional two (2) named Plaintiffs: George and Ware (as well as Fairfield, who was previously named in the letter dated December 6, 2005). Defendant admits that the Rose & Rose law firm has provided its counsel with an unsigned copy of a letter dated December 22, 2005, from attorney David L. Rose to the EEOC stating his intent to file suit under the ADEA on behalf of the following additional seven (7) named Plaintiffs: Cantrell, Thiels, Barrow, Valentine, Dillow, Hoover and Williams (as well as Wardell, who was previously named in the letter dated November 10, 2005). Defendant states that the FDIC has received a copy of a letter dated December 28, 2005, from attorney David L. Rose to the EEOC stating his intent to file suit under the ADEA on behalf of the following additional six (6) named Plaintiffs: Henderson, Kelly, Lett, Leal, Gregory Haag and Kathy Haag. Defendant denies that the FDIC has received a copy of a letter dated January 3, 2006, advising the EEOC that other employees intended to file suit under the ADEA. Defendant admits that the FDIC has received a copy of a letter dated January 20, 2006, from attorney David L. Rose to the EEOC stating his intent to file suit under the ADEA on behalf of the following additional four (4) named Plaintiffs: Bonner, Montoya, Powers, and Schirf. In addition, the FDIC has received copies of the following subsequently dated letters from attorney David L. Rose to the EEOC stating his intent to file suit under the ADEA on behalf of the additional named Plaintiffs listed hereafter: (i) February 2, 2006 – Connell, Frantum, Carole Mann and Richard Mann; (ii) February 16, 2006 – Flowers, Gray, McAnally and Scott; (iii) February 21, 2006 – Harootunian.
5. Defendant admits that the named Plaintiffs were born on dates ranging from January 10, 1933 (Sylvia Cline), through September 26, 1955 (O. Faye Moritz). Defendant admits that
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the named Plaintiffs were employees in the FDIC’s Division of Resolutions and Receiverships (DRR) in either Dallas, Texas, or Washington, D.C. in 2005 and at various times prior to 2005. Defendant admits that in the fall of 2004, pursuant to a memorandum dated October 26, 2004, entitled “Buyout Program and Reductions-in-Force,” which was issued to all employees from the office of John F. Bovenzi, Deputy to the Chairman and Chief Operating Officer, the FDIC announced, inter alia, that it would offer buyouts (which included, among other benefits, a cash payment equal to 50% of total salary and the ability to combine the buyout with either regular or early retirement) to most employees in DRR, the Division of Information Resources Management (DIRM), the Division of Administration (DOA), the Legal Division, and the Division of Finance (DOF), as well as to a more limited number of employees in the Division of Supervision and Consumer Protection (DSC), and the Division of Insurance and Research (DIR). Because the buyout was offered to all permanent DRR employees, including supervisors, who were not occupying Executive Manager (EM) graded positions, Defendant specifically denies that the buyout was “offered to employees of DRR who were not supervisors.” Defendant denies that 102 employees aged 50 or over were “discharged” from November 30, 2004 through May 14, 2005, but states that during this time period, 132 DRR employees (including 33 of the named Plaintiffs) accepted a buyout offer which generally required their voluntarily separation from the FDIC by May 14, 2005. Defendant lacks information sufficient to form a belief as to the truth of the statement that those Plaintiffs “who accepted the incentives to retire in the spring of 2005” did so “in order to avoid the substantial risk that they would be terminated without any retirement benefits until they reached age 62,” and therefore these allegations are denied. Defendant admits that 66 DRR employees (not 71 as alleged), including 16 named Plaintiffs (not
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24 as alleged), were involuntarily separated from employment with the FDIC pursuant to federal reduction-in-force (RIF) procedures effective September 3, 2005.
6. Defendant admits the allegations of paragraph 6 of the Amended Complaint with respect to Plaintiff Barbara Aliotta, who was involuntarily separated from employment with the FDIC pursuant to federal reduction-in-force (RIF) procedures effective September 3, 2005, with severance pay.
7. Plaintiff Robert Anderson was a Grade 9 employee (not Grade 6 as alleged) upon his separation from the FDIC. With this exception, Defendant admits the allegations of paragraph 7 of the Amended Complaint with respect to Plaintiff Anderson, who was involuntarily separated from employment with the FDIC pursuant to federal reduction-in-force (RIF) procedures effective September 3, 2005, with severance pay.
8. Plaintiff Jeanne Avery was born in 1954 (not 1952 as alleged) and was employed by the FDIC beginning on January 20 (not January 2 as alleged), 1987. With these exceptions, Defendant admits the allegations of paragraph 8 of the Amended Complaint with respect to Plaintiff Avery, who was involuntarily separated from employment with the FDIC pursuant to federal reduction-in-force (RIF) procedures effective September 3, 2005, with severance pay.
9. Plaintiff Douglas M. Barrow started employment with the FDIC in December of 1989 (not February of 1990 as alleged), was a Grade 12 employee (not Grade 11 as alleged) when he retired from the FDIC; Defendant therefore denies that he was “discharged” from employment. With these exceptions, Defendant admits the allegations of paragraph 9 of the Amended Complaint with respect to Plaintiff Barrow, who voluntarily retired with a buyout from the FDIC on May 14, 2005.
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10. Defendant admits the allegations of paragraph 10 of the Amended Complaint with respect to Plaintiff Ann A. Bonner, who was involuntarily separated from employment with the FDIC pursuant to federal reduction-in-force (RIF) procedures effective September 3, 2005.
11. Defendant denies that Plaintiff La Margo Brown was “discharged” from employment. With this exception, Defendant admits the allegations of paragraph 11 of the Amended Complaint with respect to Plaintiff Brown, who voluntarily retired with a buyout from the FDIC on May 14, 2005.
12. Defendant denies that Plaintiff Yvonne Cain was “discharged” from employment. Plaintiff Cain was detailed to the Dallas office in 2002 (not 2003 as alleged), and was a Grade 9 employee (not Grade 13 as alleged) upon her retirement from the FDIC. With these exceptions, Defendant admits the allegations of paragraph 12 of the Amended Complaint with respect to Plaintiff Cain, who voluntarily retired with a buyout from the FDIC on May 14, 2005.
13. Defendant admits the allegations of paragraph 13 of the Amended Complaint with respect to Plaintiff James R. Cantrell, who voluntarily retired with a buyout from the FDIC on May 14, 2005.
14. Defendant admits that Plaintiff Priscilla Catapat was born on August 19, 1944 and was employed by the FDIC on April 18, 1983. Defendant admits that Plaintiff Catapat was employed as a Resolutions & Receiverships Specialist, Grade 12, in 2005, that she did not accept the buyout and other incentives offered to FDIC employees in 2005, but she was eligible for a retirement annuity after her involuntary separation from employment with the FDIC on September 3, 2005. Defendant denies the remaining allegations of paragraph 12 of the Amended Complaint with respect to Plaintiff Catapat, who was involuntarily separated from employment
6

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with the FDIC pursuant to federal reduction-in-force (RIF) procedures effective September 3, 2005.
15. Defendant admits the allegations of paragraph 15 of the Amended Complaint with respect to Plaintiff Evelyn Claude, who was involuntarily separated from employment with the FDIC pursuant to federal reduction-in-force (RIF) procedures effective September 3, 2005, with severance pay.
16. Defendant admits the allegations of paragraph 16 of the Amended Complaint with respect to Plaintiff Sylvia Cline, who was involuntarily separated from employment with the FDIC pursuant to federal reduction-in-force (RIF) procedures effective September 2, 2005.
17. Plaintiff James B. Connell was born in 1946 (not 1949 as alleged). Defendant denies that Mr. Connell was “discharged” by the FDIC and denies that he retired with a reduced annuity. The FDIC has received a copy of a letter dated February 2, 2006 (not February 7 as alleged), from attorney David L. Rose to the EEOC stating his intent to file suit under the ADEA on behalf of Mr. Connell and three other named Plaintiffs. Defendant denies that his claim will mature and become timely on or about March 9, 2006. With these exceptions, Defendant admits the allegations of paragraph 17 of the Amended Complaint with respect to Plaintiff Connell, who voluntarily resigned with a buyout from the FDIC on May 14, 2005, and transferred to the General Services Administration (GSA) effective May 15, 2005.
18. Defendant denies that Plaintiff Lawrence G. Dillow was “discharged” from employment. With this exception, Defendant admits the allegations of paragraph 18 of the Amended Complaint with respect to Plaintiff Dillow, who voluntarily retired with a buyout from the FDIC on May 14, 2005.
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19. Plaintiff Mary L. DuPree-Ellis was employed by the FDIC in November 1990 (not May 1985 as alleged). Defendant denies that Plaintiff DuPree-Ellis was “discharged” or “offered a discharge.” With these exceptions, Defendant admits the allegations of paragraph 19 of the Amended Complaint with respect to Plaintiff DuPree-Ellis, who voluntarily retired with a buyout from the FDIC on May 14, 2005.
20. Plaintiff Wyman Elrod was employed by the FDIC on October 14 (not October 10 as alleged), 1986. With this exception, Defendant admits the allegations of paragraph 20 of the Amended Complaint with respect to Plaintiff Elrod, who was involuntarily separated from employment with the FDIC pursuant to federal reduction-in-force (RIF) procedures effective September 3, 2005, with severance pay.
21. Defendant denies that Plaintiff Patricia J. Everett was “discharged” from her employment effective September 3, 2005. With this exception, Defendant admits the allegations of paragraph 21 of the Amended Complaint with respect to Plaintiff Everett, who voluntarily retired with a buyout from the FDIC on May 14, 2005.
22. Plaintiff Joan D. Fairfield was employed by the FDIC on November 6 (not November 7 as alleged), 1977. With this exception, Defendant admits the allegations of paragraph 22 of the Amended Complaint with respect to Plaintiff Fairfield, who voluntarily retired with a buyout from the FDIC on May 14, 2005.
23. Plaintiff C. Jenola Flowers was born on May 7 (not May 4 as alleged), 1941, and was a Resolutions & Receiverships Specialist (not a Supervisory Secretary as alleged) when she retired from the FDIC. Defendant denies that Ms. Flowers was “terminated” by the FDIC. The FDIC has received a copy of a letter dated February 16, 2006 (not January 31 as alleged), from attorney David L. Rose to the EEOC stating his intent to file suit under the ADEA on behalf of
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Mr. Connell and three other named Plaintiffs. Defendant denies that her claim will mature and become timely on or about March 2, 2006. With these exceptions, Defendant admits the allegations of paragraph 23 of the Amended Complaint with respect to Plaintiff Flowers, who voluntarily resigned with a buyout from the FDIC on May 14, 2005.
24. Defendant denies that Plaintiff Kathy Frantum was “terminated” by the FDIC. The FDIC has received a copy of a letter dated February 2, 2006, from attorney David L. Rose to the EEOC stating his intent to file suit under the ADEA on behalf of Ms. Frantum and three other named Plaintiffs. Defendant denies that her claim will mature and become timely on or about March 9, 2006. With these exceptions, Defendant admits the allegations of paragraph 24 of the Amended Complaint with respect to Plaintiff Frantum, who voluntarily resigned with a buyout from the FDIC on May 14, 2005, and transferred to the General Services Administration (GSA) effective May 15, 2005.
25. Plaintiff Jamesena George was detailed to DRR in the FDIC’s Dallas office on August 11 (not August 8 as alleged), 2002, and was reassigned to that office on March 9 (not June 2 as alleged), 2003. She was a Resolutions & Receiverships (not Administrative) Specialist when she retired from the FDIC. With these exceptions, Defendant admits the allegations of paragraph 25 of the Amended Complaint with respect to Plaintiff George, who voluntarily retired with a buyout from the FDIC on May 14, 2005.
26. Plaintiff Larry L. Glazener left employment with the FDIC in 1995 (not 1998 as alleged), returned to the FDIC as a term employee in 1998 (not 1999 as alleged), and accepted a permanent Grade 12 position on December 31, 2000. Defendant lacks information sufficient to form a belief as to the truth of the statement that “[w]hile he was employed by a bank in Texas, he completed the course work offered by the American Institute of Banking in Houston and
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received a certificate of completion,” and therefore these allegations are denied. With these exceptions, Defendant admits the allegations of paragraph 26 of the Amended Complaint with respect to Plaintiff Glazener, who voluntarily retired with a buyout from the FDIC on May 14, 2005.
27. Defendant admits the allegations of paragraph 27 of the Amended Complaint with respect to Plaintiff Darrel Gray, who was involuntarily separated from employment with the FDIC pursuant to federal reduction-in-force (RIF) procedures effective September 3, 2005, with severance pay.
28. Plaintiff Gregory Haag was formerly employed as a Resolutions & Receiverships Specialist, but he applied for and accepted a position with the FDIC as an Associate Financial Institutions Specialist, which is the position he currently occupies. Defendant lacks information sufficient to form a belief as to the truth of the statement that he accepted his current position in Lexington, Kentucky, “in order to avoid the RIF in the Dallas office,” and therefore these allegations are denied. With these exceptions, Defendant admits the allegations of paragraph 28 of the Amended Complaint with respect to Plaintiff Gregory Haag.
29. Defendant denies that Plaintiff Kathy Haag was “discharged” from employment with the FDIC. With these exceptions, Defendant admits the allegations of paragraph 29 of the Amended Complaint with respect to Plaintiff Kathy Haag, who voluntarily retired with a buyout from the FDIC on May 14, 2005.
30. According to his SF-171 submitted to the FDIC, Plaintiff Denis Harootunian was employed by the United States Securities and Exchange Commission through mid-October 1989 as a Financial Analyst (not through mid-October 1988 as a Senior Financial Analyst as alleged), and was employed by the FDIC beginning in October 1989 (not 1988 as alleged). Defendant
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admits that on June 2, 2005, Plaintiff Harootunian was referred as qualified, but was not selected, for the following seven DRR Headquarters positions: (i) Financial Planning Specialist, CG-301-12, 65W133; (ii) Franchise & Asset Marketing Specialist, CG-1101-12, 65S164; (iii) Special Assistant, CG-1101-13, 65W131; (iv) Claims Systems Analyst, CG-1101-13, 65S162; (v) Contract Oversight Specialist, CG-1101-13, 65W130; (vi) Franchise & Asset Marketing Specialist, CG-1101-13, 65S163; and (vii) Capital Market Specialist (2 vacancies), CG-1101-13, 65W129. Defendant denies that Plaintiff Harootunian “bid” for each of these positions. While Defendant admits that seven of the eight selectees for these positions were younger than Plaintiff Harootunian, Defendant denies that the selectees had less experience and expertise relevant to these positions than Plaintiff Harootunian. With these exceptions, Defendant admits the allegations of paragraph 30 of the Amended Complaint with respect to Plaintiff Harootunian, who was involuntarily separated from employment with the FDIC pursuant to federal reductionin-force (RIF) procedures effective September 3, 2005.
31. Defendant denies that Plaintiff Peggy J. Henderson was “discharged” from employment with the FDIC. She was a Resolutions & Receiverships Technician, Grade 7 (not an Administrative Assistant, Grade 6, as alleged) when she retired from the FDIC with a buyout on November 30, 2004. With these exceptions, Defendant admits the allegations of paragraph 31 of the Amended Complaint with respect to Plaintiff Henderson, who voluntarily retired with a buyout from the FDIC on November 30, 2004.
32. Plaintiff Pinkie Hoover started her employment with the FDIC as a grade LG-05 Secretary (not a CG7 R&R Technician as alleged). Defendant denies that Plaintiff Hoover was “discharged” from employment with the FDIC. With these exceptions, Defendant admits the
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allegations of paragraph 32 of the Amended Complaint with respect to Plaintiff Hoover, who voluntarily retired with a buyout from the FDIC on May 14, 2005.
33. Defendant admits the allegations of paragraph 33 of the Amended Complaint with respect to Plaintiff Mary S. Kebbeh, who was involuntarily separated from employment with the FDIC pursuant to federal reduction-in-force (RIF) procedures effective September 3, 2005, with severance pay.
34. Plaintiff Dennis L. Keller was employed by the FDIC on May 13, 1985 (not 1986 as alleged). With this exception, Defendant admits the allegations of paragraph 34 of the Amended Complaint with respect to Plaintiff Keller, who was involuntarily separated from employment with the FDIC pursuant to federal reduction-in-force (RIF) procedures effective September 3, 2005, with severance pay.
35. Plaintiff Gary Kelly was employed by the FDIC for over 21 years (not 23 years as alleged). Defendant denies that he was “discharged” from employment. With these exceptions, Defendant admits the allegations of paragraph 35 of the Amended Complaint with respect to Plaintiff Kelly, who voluntarily retired with a buyout from the FDIC on April 30, 2005.
36. Defendant denies that Plaintiff Vincent Leal was “discharged” by the FDIC. With this exception, Defendant admits the allegations of paragraph 36 of the Amended Complaint with respect to Plaintiff Leal, who voluntarily retired with a buyout from the FDIC effective May 13, 2005.
37. Plaintiff Donald Lett was a Grade 13 (not Grade 12 as alleged) R&R Specialist when he retired from the FDIC. Defendant denies that Plaintiff Lett was “discharged” by the FDIC. With these exceptions, Defendant admits the allegations of paragraph 37 of the Amended
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Complaint with respect to Plaintiff Lett, who voluntarily retired with a buyout from the FDIC on May 14, 2005.
38. Plaintiff Pearl Lindsey was employed by the FDIC on September 15 (not November 19 as alleged), 1986. With this exception, Defendant admits the allegations of paragraph 38 of the Amended Complaint with respect to Plaintiff Lindsey, who was involuntarily separated from employment with the FDIC pursuant to federal reduction-in-force (RIF) procedures effective September 3, 2005, with severance pay.
39. Defendant lacks information sufficient to form a belief as to the truth of the statement that the reason Plaintiff Carole Mann left the FDIC was “for a job offer in the private sector,” but notes that this is inconsistent with Plaintiffs’ allegation in paragraph 75 of the Amended Complaint that “[s]ome employees over 50, including Carole Mann and Richard Mann accepted a buyout to leave the Defendant Agency for lower grade positions in another Federal Agency.” The FDIC has received a copy of a letter dated February 2, 2006, from attorney David L. Rose to the EEOC stating his intent to file suit under the ADEA on behalf of Ms. Mann and three other named Plaintiffs. Defendant denies that her claim will mature and become timely on or about March 9, 2006. With these exceptions, Defendant admits the allegations of paragraph 39 of the Amended Complaint with respect to Plaintiff Carole Mann, who voluntarily resigned with a buyout from the FDIC on February 25, 2005.
40. Defendant admits the allegations of paragraph 40 of the Amended Complaint with respect to Plaintiff Richard Mann, who voluntarily retired with a buyout from the FDIC on April 30, 2005.
41. Defendant denies that Plaintiff McAnally was “discharged” by the FDIC. With this exception, Defendant admits the allegations of paragraph 41 of the Amended Complaint with
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respect to Plaintiff McAnally, who voluntarily retired with a buyout from the FDIC on May 14, 2005.
42. Plaintiff Edwin Montoya was employed by the FDIC for 29 years and 4 months (not 10 months as alleged). Defendant denies that Plaintiff Montoya was “discharged” by the FDIC. The FDIC has received a copy of a letter dated January 20, 2006, from attorney David L. Rose to the EEOC stating his intent to file suit under the ADEA on behalf of Mr. Montoya and three other named Plaintiffs. Defendant denies that his claim will mature and become timely on or about February 21, 2006. With these exceptions, Defendant admits the allegations of paragraph 24 of the Amended Complaint with respect to Plaintiff Montoya, who voluntarily retired with a buyout from the FDIC on May 14, 2005.
43. Defendant admits the allegations of paragraph 43 of the Amended Complaint with respect to Plaintiff O. Faye Moritz, who was involuntarily separated from employment with the FDIC pursuant to federal reduction-in-force (RIF) procedures effective September 3, 2005, with severance pay.
44. Plaintiff Bernice Parker was employed by the FDIC in 1985 (not 1986 as alleged), and was offered a buyout with or without early retirement. Defendant denies that she was “discharged” from employment. With these exceptions, Defendant admits the allegations of paragraph 44 of the Amended Complaint with respect to Plaintiff Parker, who voluntarily retired with a buyout from the FDIC on May 14, 2005.
45. Defendant denies that Plaintiff Paula J. Patterson was eligible for early retirement, denies that she was terminated from employment effective May 14, 2005, but admits that she would have received a buyout if she had resigned from the FDIC by May 14, 2005 (which she chose not to do). With these exceptions, Defendant admits the allegations of paragraph 43 of the
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Amended Complaint with respect to Plaintiff Patterson, who was involuntarily separated from employment with the FDIC pursuant to federal reduction-in-force (RIF) procedures effective September 3, 2005, with severance pay.
46. Defendant denies that Plaintiff Nancy Powers was “discharged” by the FDIC. With this exception, Defendant admits the allegations of paragraph 46 of the Amended Complaint with respect to Plaintiff Powers, who voluntarily retired with a buyout from the FDIC on September 3, 2005 (delayed departure extension).
47. Defendant lacks information sufficient to form a belief as to the truth of the statement that the reason Plaintiff Herbert Schirf left the FDIC on April 30, 2005, was “so he could receive a retirement annuity starting June 1.” The FDIC has received a copy of a letter dated January 20, 2006, from attorney David L. Rose to the EEOC stating his intent to file suit under the ADEA on behalf of Mr. Schirf and three other named Plaintiffs. Defendant denies that his claim will mature and become timely on or about February 21, 2006. With these exceptions, Defendant admits the allegations of paragraph 47 of the Amended Complaint with respect to Plaintiff Schirf, who voluntarily retired with a buyout from the FDIC on April 30, 2005.
48. Plaintiff James M. Scott was born on April 18 (not April 28 as alleged), 1943. Defendant denies that he was “discharged” from employment. The FDIC has received a copy of a letter dated February 16 (not February 7 as alleged), 2006, from attorney David L. Rose to the EEOC stating his intent to file suit under the ADEA on behalf of Mr. Scott and three other named Plaintiffs. Defendant denies that his claim will mature and become timely on or about March 9, 2006. With these exceptions, Defendant admits the allegations of paragraph 48 of the Amended Complaint with respect to Plaintiff Scott, who voluntarily retired with a buyout from the FDIC on April 30, 2005.
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49. Defendant lacks information sufficient to form a belief as to the truth of the statement that Plaintiff Patrick J. Shute received “excellent” performance appraisals in the position of Department Head of the Claims Department of DRR prior to 2001, that he was “eliminated from that position” in 2001, and that the FDIC “created two ‘Section Chief’ positions to perform the duties he had performed as Department Head,” and therefore these allegations are denied. Defendant denies that the FDIC “awarded both of these positions to much younger employees who had substantially less experience and expertise than Shute.” Plaintiff Shute had 19 years and 7 months (not 4 months) of FDIC service when he resigned after he was offered a buyout and accepted early retirement. Defendant denies that he was “discharged” from employment. With these exceptions, Defendant admits the allegations of paragraph 49 of the Amended Complaint with respect to Plaintiff Shute, who voluntarily retired with a buyout from the FDIC on May 14, 2005.
50. Defendant denies that Plaintiff Sherry Thiels was “discharged” from employment. With these exceptions, Defendant admits the allegations of paragraph 50 of the Amended Complaint with respect to Plaintiff Thiels, who voluntarily retired with a buyout from the FDIC on May 14, 2005.
51. Plaintiff Marc Valentine started his most recent employment with the FDIC in March of 1989 (not February or March of 1987 as alleged). Prior to that, he had worked for the FDIC for eight months (not nine months as alleged) in 1985. With these exceptions, Defendant admits the allegations of paragraph 51 of the Amended Complaint with respect to Plaintiff Valentine, who voluntarily retired with a buyout from the FDIC on May 14, 2005.
52. Defendant admits the allegations of paragraph 52 of the Amended Complaint with respect to Plaintiff Frances Wardell, who was involuntarily separated from employment with the
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FDIC pursuant to federal reduction-in-force (RIF) procedures effective September 3, 2005, with severance pay.
53. Plaintiff Jackson Ware was employed by the FDIC for 19 years and 1 month (not 2 months as alleged) and was a Resolutions and Receiverships Specialist (not a Supervisory Resolutions and Receiverships Specialist as alleged) when he retired from the FDIC. Defendant denies that Plaintiff Ware was “discharged” from employment. With these exceptions, Defendant admits the allegations of paragraph 53 of the Amended Complaint with respect to Plaintiff Ware, who voluntarily retired with a buyout from the FDIC on May 14, 2005.
54. Defendant denies that Plaintiff Kerry Williams was “discharged” from employment. With this exception, Defendant admits the allegations of paragraph 54 of the Amended Complaint with respect to Plaintiff Williams, who voluntarily retired with a buyout from the FDIC on May 14, 2005.
55. Defendant admits that Martin J. Gruenberg is that Acting Chairman of the FDIC, that the FDIC is an independent regulatory agency of the federal government created in 1933, and that it currently insures deposits in banks and savings institutions for up to $100,000. Defendant admits that it is managed by a five-person Board of Directors (all of whom are appointed by the President and confirmed by the Senate), consisting of the Chairman, the Vice Chairman, the Director of the Office of Thrift Supervision, the Comptroller of the Currency, and an additional Director. Defendant admits that it is subject to the ADEA pursuant to 29 U.S.C. § 633a and that it is an executive agency within the meaning of 29 U.S.C. § 633a. The head of the agency, in his official capacity, is the only proper Defendant. The remainder of paragraph 55 of the Amended Complaint comprises conclusions of law and argument, which require no response.
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56. Defendant admits that in the mid-1990’s, discussions occurred among members of the FDIC’s Board of Directors about the need to reduce the number of FDIC employees, in part because of the agency’s declining workload in resolution and asset liquidation activities. The remaining factual allegations are denied.
57. Defendant admits that a memorandum entitled “Update on Corporate Staffing” dated November 28, 1997, was distributed via e-mail to all FDIC employees from the office of Dennis F. Geer, Deputy to the Chairman and Chief Operating Officer. Defendant admits that a memorandum entitled “Approval of 1998 Staffing Allocations” dated December 10, 1997, was distributed to all FDIC Division and Office Directors from the office of Dennis F. Geer, Deputy to the Chairman and Chief Operating Officer. Defendant denies the remaining allegations of paragraph 57 of the complaint concerning “announce[ment] [of] a core staffing analysis,” except to the extent supported by the memoranda themselves, which are the best evidence of their contents. Defendant admits that the FDIC offered buyouts and other incentives to reduce excess staffing in 1998 and 1999, but denies that such offers were limited to employees who were then 50 years or older. The remaining factual allegations of paragraph 57 of the Amended Complaint are denied.
58. Defendant lacks information sufficient to form a belief as to the truth of the statement attributed to the former Chairman of the FDIC in 2001 and 2002, and therefore this allegation is denied.
59. Defendant admits that in the summer of 2002, the Division of Research and Statistics (DRS) and the Division of Insurance (DOI) were merged to form the Division of Insurance and Research (DIR), and that after the merger, at an “all hands” meeting called by senior management with employees of the new organization, former Chairman Powell asked employees
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with differing years of experience to raise their hands. The remaining factual allegations are denied.
60. The allegations of paragraph 60 of the Amended Complaint comprise conclusions of law and argument to which no response is necessary. Any factual allegations are denied.
61. By the end of 2001, the FDIC had 6,197 employees. Defendant admits that a memorandum entitled “Reshaping the FDIC for the Future” dated February 6, 2002, was distributed via e-mail to all FDIC employees from the office of John F. Bovenzi, Deputy to the Chairman and Chief Operating Officer. Defendant denies the remaining allegations of paragraph 61 of the Amended Complaint, except to the extent supported by the memorandum itself, which is the best evidence of its contents.
62. Defendant admits that it initiated a targeted buyout program in September 2001 (including payment of 50% of total annual pay plus supplemental incentives), to attorneys in the Legal Division, as well as certain field employees in the Office of Ombudsman and Office of Diversity and Economic Opportunity in 2001, and that a subsequent buyout program was offered to employees in selected positions in other FDIC divisions and offices in 2002. Defendant admits that independently of the buyout programs, the FDIC requested and obtained U.S. Office of Personnel Management (OPM) approval for voluntary early retirement authority through September 30, 2002 (later extended to September 30, 2003 for all employees occupying a position eligible for a buyout offer and all executive level employees). Defendant admits that it conducted a reduction-in-force (RIF) in the FDIC’s Legal Division in May 2002 that resulted in the involuntary separation of nineteen (19) attorneys pursuant to federal reduction-in-force (RIF) procedures at that time. Defendant lacks information sufficient to form a belief as to what
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Plaintiffs mean by the phrase “those harmed by the 2002 RIF,” and therefore the remaining allegations are denied.
63. Defendant lacks knowledge sufficient to form a belief as to the truth of the statement that “[o]n September 16, 2002, Chairman Powell advised FDIC employees that the Defendant Agency would make a broad RIF unless 400 or more employees accepted a buyout and left their employment with the Agency,” and therefore these allegations are denied. Defendant states that in a memorandum entitled “Reshaping the FDIC for the Future” dated February 6, 2002, and distributed via e-mail to all FDIC employees from the office of John F. Bovenzi, Deputy to the Chairman and Chief Operating Officer, it was stated, inter alia, that “we still have over 400 identified surplus positions today and that surplus will grow to at least 600 positions in the next 3 to 4 years.” Defendant admits that by September 30, 2002, 645 employees had accepted the FDIC’s most recent buyout offer, but subsequently, one person was declared ineligible, so the final total was 644; accordingly, the figure as of October 11, 2002, would have been 645 or 644. Defendant admits that a high proportion of the employees who accepted the buyout were more than 50 years old. Defendant denies the remaining allegations of paragraph 63 of the Amended Complaint.
64. Defendant denies the allegations of paragraph 64 of the Amended Complaint, but states that by year-end 2002, the FDIC had 5,430 total employees.
65. Defendant admits that a memorandum entitled “Status of Corporate Downsizing” dated January 6, 2003, was distributed via e-mail to all FDIC employees from the office of John F. Bovenzi, Deputy to the Chairman and Chief Operating Officer. Defendant denies the remaining allegations of the first sentence of paragraph 65 of the Amended Complaint, except to the extent supported by the memorandum itself, which is the best evidence of its contents.
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Defendant denies that the FDIC offered incentives for employees to retire in the first half of 2003, although the FDIC did try to minimize the impact of the impending mid-2003 RIF on employees in surplus positions through expressions of interest (EOI), merit promotions postings, internal reassignments, and outplacement services. On July 11, 2003, pursuant to federal reduction-in-force procedures, 43 FDIC employees (including one from DRR) were involuntarily separated and an additional 26 FDIC employees (including one from DRR) were reduced in grade (but received grade and pay retention in accordance with the FDIC’s Corporate Reduction in Force Policy in effect at that time). Defendant denies the remaining allegations of paragraph 65 of the Amended Complaint.
66. Defendant admits that as of October 26, 2004, the on-board workforce of the FDIC was nearly 5,300.
67. Defendant admits that a memorandum entitled “Buyout Program and Reductions-in Force” dated October 26, 2004, was distributed via e-mail to all FDIC employees from the office of John F. Bovenzi, Deputy to the Chairman and Chief Operating Officer. Defendant denies the remaining allegations of paragraph 67 of the Amended Complaint, except to the extent supported by the memorandum itself, which is the best evidence of its contents.
68. Defendant admits that a memorandum entitled “DRR Workforce Planning and Transition” dated October 28 (not October 26 as alleged), 2004, was distributed to DRR employees from the office of Mitchell Glassman, Director of DRR. Defendant denies the remaining allegations of paragraph 68 of the Amended Complaint, except to the extent supported by the memorandum itself, which is the best evidence of its contents. Defendant lacks information sufficient to form a belief as to what Plaintiffs mean by their statement that “the RIF
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in DRR was the only one understated by the Defendant Agency from October, 2004, through December, 2005,” and therefore this allegation is denied.
69. Defendant denies the allegations of paragraph 69 of the Amended Complaint. 70. The allegations of paragraph 70 of the Amended Complaint comprise conclusions of law and argument to which no response is necessary. Any factual allegations are denied. 71. The allegations of paragraph 71 of the Amended Complaint comprise conclusions of law and argument to which no response is necessary. Any factual allegations are denied. 72. The allegations of paragraph 72 of the Amended Complaint comprise conclusions of law and argument to which no response is necessary. Any factual allegations are denied. 73. Defendant lacks knowledge sufficient to determine what Plaintiffs mean by their statement that “Defendant Agency has not publicly asserted that the 2005 in DRR was necessary” and therefore that allegation is denied. Defendant admits that on June 30, 2005, each DRR employee affected by the RIF received a Specific Notice of Reduction in Force (RIF) issued from the office of Miguel A. Torrado, Associate Director, Human Resources Branch, Division of Administration, which was tailored to that employee’s individual circumstances and which contained the language quoted in paragraph 73 of the Amended Complaint. Such notices are the best evidence of their contents. 74. Defendant admits that a memorandum entitled “Buyout Program and Reductions-in Force” dated October 26, 2004, was distributed via e-mail to all FDIC employees from the office of John F. Bovenzi, Deputy to the Chairman and Chief Operating Officer. The FDIC’s Division of Administration subsequently issued a global e-mail dated November 2, 2004, summarizing the terms of the DRR buyout and a Buyout Handbook which explained the buyout program in detail, including which employees were eligible, time frames for applying for the buyout, amount of the
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buyout payment and supplemental benefits included in the buyout. Defendant denies the remaining allegations of paragraph 74 of the Amended Complaint (including, without limitation, that the only employees 50 years and older who were eligible for the buyout were those “who were not yet eligible to receive a full retirement annuity” and that DRR employees who accepted were obliged to submit their applications by December 31, 2004), except to the extent supported by the memorandum, global e-mail and handbook, which are the best evidence of their contents.
75. Defendant admits that 132 DRR employees in Dallas and Washington, D.C., some of whom were over 50, accepted the buyout. Defendant admits that Plaintiffs James B. Connell and Kathy Frantum accepted a buyout and transferred to lower grade positions at the GSA. Defendant lacks information sufficient to form a belief as to the truth of the statement that Plaintiffs Carole Mann and Richard Mann “accepted a buyout to leave the Defendant Agency for lower graded positions in another Federal Agency” (but notes that paragraph 39 of the Amended Complaint states that Plaintiff Carole Mann “left Defendant Agency February 25, 2005 for a job offer in the private sector”), and therefore these allegations are denied. Defendant admits that each of the Plaintiffs named in paragraph 75 who accepted the buyout were separated from their employment in the spring of 2005 (except for Plaintiff Frantum who was separated in the winter), effective no later than May 14, 2005. Plaintiffs Gray and Patterson did not apply for the buyout and were involuntarily separated from employment with the FDIC pursuant to federal reduction-in-force (RIF) procedures effective September 3, 2005, with severance pay. Petri is not a named Plaintiff in this lawsuit. Defendant denies that each of the other employees who accepted a buyout was separated on or before May 14, 2005 (for example, Plaintiff Powers had a delayed departure extension until September 3, 2005).
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76. Defendant lacks information sufficient to form a belief as to the truth of the allegations concerning the retirement income of employees who accepted early retirement, and therefore these allegations are denied.
77. Defendant denies the allegations of paragraph 77 of the Amended Complaint. However, the following categories of employees were not eligible for the 2005 buyout: reemployed annuitants; disability retirees (including those who became eligible for disability retirement within a year of separation); discontinued service retirees; Schedule C employees (“political appointees”); Presidential appointees; employees who were in receipt of an involuntary separation proposal for misconduct or unacceptable performance (employees who had an approved buyout separation date and subsequently received a proposed removal notice had their buyout offers rescinded by the FDIC); and time-limited employees, even if they converted to the time-limited service with no break in service from a permanent appointment.
78. Defendant admits that on June 30, 2005, each DRR employee affected by the RIF received a Specific Notice of Reduction in Force (RIF) issued from the office of Miguel A. Torrado, Associate Director, Human Resources Branch, Division of Administration, which was tailored to that employee’s individual circumstances and which contained language similar to that which is set forth in paragraph 78 of the Amended Complaint. Defendant denies the remaining allegations of paragraph 78 of the Amended Complaint, except to the extent supported by the notices themselves, which are the best evidence of their contents.
79. Defendant admits that the Plaintiffs named in paragraph 79 were separated from the FDIC on September 3, 2005 (with the exception of Plaintiffs Dupree-Ellis and Everett, who were separated on May 14, 2005), along with approximately fifty other DRR employees who were separated on that date. Inasmuch as the number of employees under age 40 who were
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“discharged” on that date is a subset of the total number of employees under the age of 45 who were “discharged,” Defendant admits the truism that there were fewer employees discharged who were under age 40 than those who were under age 45. The remaining allegations of paragraph 79 of the Amended Complaint are denied.
80. Defendant denies the allegations of paragraph 80 of the Amended Complaint. 81. Defendant denies the allegations of paragraph 81 of the Amended Complaint. 82. Defendant admits that a memorandum entitled “Expression of Interest – HR-05-003 FDIC Recruiters (Collateral Duty)” dated September 2, 2005 was distributed via e-mail to all FDIC employees from the office of Miguel Torrado, Associate Director, Division of Administration, Human Resources Branch. Defendant denies the remaining allegations of paragraph 81 of the Amended Complaint, except to the extent supported by the memorandum itself, which is the best evidence of its contents. 83. Defendant admits that at various times during 2002 - 2005, despite the ongoing need to reduce surplus staffing, the FDIC continued to recruit and hire additional employees from outside the agency on a limited basis in order to address particularized staffing shortages, such as vacant bank examiner positions. Defendant denies the remaining allegations of paragraph 83 of the Amended Complaint. 84. Defendant denies the allegations of paragraph 84 of the Amended Complaint. 85. Defendant denies the allegations of paragraph 85 of the Amended Complaint. 86. Defendant denies the allegations of paragraph 86 of the Amended Complaint. 87. Defendant denies the allegations of paragraph 87 of the Amended Complaint. 88. Defendant admits that pursuant to a memorandum dated October 26, 2004, entitled “Buyout Program and Reductions-in-Force,” which was issued to all employees from the office
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of John F. Bovenzi, Deputy to the Chairman and Chief Operating Officer, the FDIC announced, inter alia, that it had “begun active planning for RIFs in DRR and DIRM in the third quarter of 2005, and in DOA, Legal and DOF in 2006.” Subsequently, on March 4, 2005, formal notification was sent by the FDIC’s Division of Administration to the National Treasury Employees Union (NTEU) of a reduction-in-force planned for bargaining unit employees in both DIT (the Division of Information Technology, formerly DIRM) and DRR. In April 2005, informational RIF notices were sent to employees in both DIT and DRR. However, by July 25, 2005, it was determined that no RIF would occur in DIT due to the success of the buyout program and other initiatives taken to reduce and realign DIT’s staff. Defendant admits that the only reduction-in-force which actually occurred during the time period October 2004 through December 2005 involved DRR. Defendant denies the remaining allegations of paragraph 88 of the Amended Complaint.
89. Defendant denies the allegations of paragraph 89 of the Amended Complaint. 90. Defendant denies the allegations of paragraph 90 of the Amended Complaint. During 2005, 132 DRR employees applied for and accepted the buyout, and 66 DRR employees were involuntarily separated from employment with the FDIC pursuant to federal reduction-inforce (RIF) procedures effective September 3, 2005. 91. Defendant admits that each of the Plaintiffs and other members of the alleged class who were voluntarily separated pursuant to the buyout or who were involuntarily separated from employment with the FDIC pursuant to federal reduction-in-force (RIF) procedures were not separated because they had performed at a less than satisfactory level at the FDIC. Defendant admits that on June 30, 2005, each DRR employee affected by the RIF received a Specific Notice of Reduction in Force (RIF) issued from the office of Miguel A. Torrado, Associate
26

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Director, Human Resources Branch, Division of Administration, which was tailored to that employee’s individual circumstances and which stated, inter alia, that “[t]his RIF action does not reflect on hour service, performance and conduct.” Such notices are the best evidence of their contents. Defendant denies the remaining allegations of paragraph 91 of the Amended Complaint.
92. Defendant admits that on June 30, 2005, each DRR employee affected by the RIF received a Specific Notice of Reduction in Force (RIF) issued from the office of Miguel A. Torrado, Associate Director, Human Resources Branch, Division of Administration, which was tailored to that employee’s individual circumstances and which stated, inter alia, that “[t]his RIF is necessary due to a lack of work and/or a need to reorganize that way we perform our work.” Such notices are the best evidence of their contents. Defendant denies the remaining allegations of paragraph 92 of the Amended Complaint.
93. Defendant denies the allegations of paragraph 93 of the Amended Complaint. 94. Defendant denies the allegations of paragraph 94 of the Amended Complaint. 95. Defendant denies the allegations of paragraph 95 of the Amended Complaint. 96. Defendant denies the allegations of paragraph 96 of the Amended Complaint. 97. Defendant denies the allegations of paragraph 97 of the Amended Complaint. 98. Defendant admits that Plaintiffs’ counsel has represented plaintiffs in pattern or practice cases and collective actions and class actions, and has no reason to believe that Rose & Rose, P.C., will not provide adequate legal representation to the Plaintiffs. Defendant denies the remaining allegations of paragraph 98 of the Amended Complaint. 99. Defendant incorporates by reference its responses to paragraphs 1 through 98 of the Amended Complaint.
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100. Defendant denies the allegations of paragraph 100 of the Amended Complaint. 101. Defendant denies the allegations of paragraph 101 of the Amended Complaint.
DEFENSES AND AFFIRMATIVE DEFENSES By pleading the following defenses, as provided for pursuant to Rule 8(c) of the Federal Rules of Civil Procedure, Defendant does not concede that it possesses or assumes the burden to prove each or any of them. Defendant maintains that Plaintiffs retain the burden of proof on all matters necessary to state and sustain the claims asserted in the Amended Complaint.
FIRST AFFIRMATIVE DEFENSE Plaintiffs have failed to state a claim for which relief may be granted.
SECOND AFFIRMATIVE DEFENSE Plaintiffs have failed to exhaust administrative remedies for some or all of their claims.
THIRD AFFIRMATIVE DEFENSE Plaintiffs have failed to provide timely notice under the Age Discrimination in Employment Act and related regulations for some or all of their claims, including, without limitation, those Plaintiffs who failed to provide timely notice to the EEOC within 180 days of the occurrence of the alleged unlawful practice, as required by the provisions of 29 C.F.R. 1614.201(a): Fairfield, George, Ware, Cantrell, Thiels, Barrow, Valentine, Dillow, Hoover, Williams, Henderson, Kelly, Lett, Leal, Kathy Haag, Montoya, Schirf, Connell, Frantum, Carole Mann, Richard Mann, Flowers, and Scott, all of whom resigned or retired from the FDIC on or before May 14, 2005.
FOURTH AFFIRMATIVE DEFENSE The Court lacks jurisdiction over some or all of Plaintiffs’ claims.
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FIFTH AFFIRMATIVE DEFENSE Plaintiffs have failed to comply with the time limits for pursuing administrative and judicial remedies for age discrimination complaints.
SIXTH AFFIRMATIVE DEFENSE Some or all of Plaintiffs’ claims are barred by the statute of limitations, laches, res judicata, collateral estoppel, settlement and release, or accord and satisfaction.
SEVENTH AFFIRMATIVE DEFENSE Plaintiffs and their counsel cannot satisfy the requirements necessary to maintain a class action.
EIGHTH AFFIRMATIVE DEFENSE The head of the agency, in his official capacity, is the only proper defendant.
NINTH AFFIRMATIVE DEFENSE The decisions Plaintiffs challenge were based on reasonable business factors other than age.
TENTH AFFIRMATIVE DEFENSE The FDIC conducted its reductions-in-force in accordance with applicable federal regulations and procedures.
ELEVENTH AFFIRMATIVE DEFENSE Some or all of the Plaintiffs’ claims are barred because of their voluntary departure from the FDIC.
TWELFTH AFFIRMATIVE DEFENSE 29

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Plaintiffs have failed to appeal to the Merit Systems Protection Board for some or all of their claims.
THIRTEENTH AFFIRMATIVE DEFENSE Plaintiffs’ entitlement to relief is limited by court orders entered in other cases.
FOURTEENTH AFFIRMATIVE DEFENSE Some or all of the Plaintiffs lack standing to pursue the claims asserted in the Amended Complaint.
FIFTEENTH AFFIRMATIVE DEFENSE Plaintiffs fail to state a prima facie case under any of the claims or causes of action they have asserted; in the alternative, assuming Plaintiffs have stated a prima facie case, all conduct and actions on the part of Defendant concerning Plaintiffs were wholly based on legitimate, nondiscriminatory, and non-retaliatory reasons.
SIXTEENTH AFFIRMATIVE DEFENSE Defendant denies Plaintiffs are entitled to recover any damages or other relief; in the alternative, upon information and belief, Plaintiffs’ damage claims are barred in whole or part by reason of their failure to mitigate their alleged damages and/or the doctrine of after-acquired evidence; further, in the alternative, to the extent Plaintiffs have mitigated their damages, Defendant is entitled to a credit or set-off.
SEVENTEENTH AFFIRMATIVE DEFENSE Plaintiffs are not entitled to a jury trial of the allegations of their Amended Complaint.
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EIGHTEENTH AFFIRMATIVE DEFENSE
Defendant reserves the right to assert additional defenses, affirmative or otherwise, upon
further investigation and discovery into the matters alleged. Defendant asserts all applicable
statutory limitations with respect to Plaintiffs’ damage claims.
WHEREFORE, Defendant requests the Court enter judgment in its favor and
against Plaintiffs, that the Amended Complaint be dismissed in its entirety with prejudice, that
Defendant recover its costs in this action, and for such other relief as may be appropriate.
Respectfully submitted,
/s/ William S. Jones _________________________________ William S. Jones Georgia Bar No. 404288 Counsel, Legal Division Federal Deposit Insurance Corporation 3501 N. Fairfax Drive (VS-E6006) Arlington, VA 22226 (703) 562-2362 (703) 562-2482 (Fax)
Stephen J. Kessler D.C. Bar No. 382427 Counsel, Legal Division Federal Deposit Insurance Corporation 3501 N. Fairfax Drive (VS-E6014) Arlington, VA 22226 (703) 562-2311 (703) 562-2482 (Fax)
Attorneys for Defendant
Dated: March 15, 2006
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CERTIFICATE OF SERVICE I hereby certify that on March 15, 2006, I caused a true and correct copy of the foregoing Defendant’s Answer and Affirmative Defenses to Plaintiffs’ Amended Complaint to be served on Plaintiffs, through counsel, by first-class mail, postage prepaid, addressed as follows:
Terri N. Marcus, Esq. David L. Rose, Esq. Rose & Rose, P.C. 1320 19th Street, N.W. Suite 601 Washington, DC 20036
/s/ William S. Jones __________________________________ William S. Jones Counsel Federal Deposit Insurance Corporation
32

 
 623 F.Supp.2d 73 (2009)
Barbara ALIOTTA et al., Plaintiffs, v.
Sheila C. BAIR, In her official capacity as Chairman, Federal Deposit Insurance Corporation, Defendant.
Civil Action No. 05-2325 (RMU).
United States District Court, District of Columbia.
June 10, 2009.
74 *74 David Louis Rose, Yuval Rubinstein, Rose & Rose, PC, Washington, DC, for Plaintiffs.
William S. Jones, Federal Deposit Insurance Corporation, Arlington, VA, for Defendant.
MEMORANDUM OPINION
RICARDO M. URBINA, District Judge.
DENYING THE PLAINTIFFS' MOTION TO ALTER OR AMEND JUDGMENT
I. INTRODUCTION
This case is before the court on the plaintiffs' motion to alter or amend judgment. The plaintiffs, former and current employees of the Division of Resolutions and Receiverships ("DRR") of the Federal Deposit Insurance Corporation ("FDIC" or "the defendant" or "the Agency"), brought a class action suit against the defendant under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., alleging unlawful age discrimination. Following the parties' cross-motions for summary judgment, the court granted summary judgment in the defendant's favor. The plaintiffs now move to alter or amend that judgment pursuant to Federal Rule of Civil Procedure 59(e). Because the plaintiffs fail to show that they are entitled to relief upon reconsideration of the court's order, the court denies their motion.
II. FACTUAL & PROCEDURAL BACKGROUND
Because the court outlined the facts underlying this case in its memorandum opinion of September 18, 2008, it will only briefly summarize them here. In October 2004, the Director of the DRR informed DRR employees that the Agency planned to reduce DRR staff by approximately fifty percent. 576 F.Supp.2d 113, 116-117 (D.D.C.2008). Although the Agency hoped to attain these staffing levels by instituting a buyout program and giving DRR employees the opportunity to transfer to other divisions, management also projected the need for an involuntary reduction in force ("RIF"). Id.
Ultimately, 132 DRR employees accepted a buyout package. Id. at 116-117. In addition, seventy-three DRR employees transferred to other divisions of the Agency before the RIF occurred. Id. The Agency proceeded with 75 the RIF in 2005 in negotiation with the employees' collective *75 bargaining group. Id. The RIF notifications set forth the factors that the Agency considered in selecting employees for involuntary termination: veteran status, civil service tenure, length of federal service and performance ratings. Id. The Agency terminated fifty-three employees, and another ten retired or resigned in lieu of separation. Id. After the RIF, 233 DRR employees remained. Id.

The plaintiffs, a class of former or present DRR employees over age fifty "who, as a result of the 2005 RIF, either accepted a buyout or reduction in grade, or were terminated from their positions in the DRR," filed suit in December 2005. Id. at 117. The plaintiffs claimed that the Agency's 2005 downsizing had an adverse impact on DRR employees over the age of fifty. See generally Am. Compl. On September 18, 2008, the court granted summary judgment in the defendant's favor, holding that the plaintiffs had failed to demonstrate that the buyouts or transfers were involuntary and that the plaintiffs had not established that the RIF had a discriminatory effect on older employees. See generally 576 F.Supp.2d 113. The plaintiffs filed a motion for reconsideration on October 3, 2008. See generally Pls.' Mot. The court now turns to the parties' arguments.
III. ANALYSIS
A. Legal Standard for Motion to Alter or Amend Judgment Under Rule 59(e)
Federal Rule of Civil Procedure 59(e) provides that a motion to alter or amend a judgment must be filed within ten days of the entry of the judgment at issue. FED.R.CIV.P. 59(e); see also Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1098 (D.C.Cir.2003) (stating that a Rule 59(e) motion "must be filed within 10 days of the challenged order, not including weekends, certain specified national holidays (including Christmas Day and New Year's Day), or any other day appointed as a holiday by the President"). While the court has considerable discretion in ruling on a Rule 59(e) motion, the reconsideration and amendment of a previous order is an unusual measure. Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.Cir.1996) (per curiam); McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir.1999). Rule 59(e) motions "need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear legal error or prevent manifest injustice." Ciralsky v. Cent. Intelligence Agency, 355 F.3d 661, 671 (D.C.Cir.2004) (quoting Firestone, 76 F.3d at 1208). Moreover, "[a] Rule 59(e) motion to reconsider is not simply an opportunity to reargue facts and theories upon which a court has already ruled," New York v. United States, 880 F.Supp. 37, 38 (D.D.C.1995), or a vehicle for presenting theories or arguments that could have been advanced earlier, Kattan v. District of Columbia, 995 F.2d 274, 276 (D.C.Cir.1993); W.C. & A.N. Miller Cos. v. United States, 173 F.R.D. 1, 3 (D.D.C.1997).
B. The Court Denies the Plaintiffs' Motion to Alter or Amend Judgment
The plaintiffs offer three arguments in support of their motion to alter or amend judgment. First, they contend the court erroneously concluded that the buyouts were voluntary as a matter of law. Pls.' Mot. at 2-7. Second, the plaintiffs assert that the court misrepresented the year that the defendant's Corporate Employee program (which the court discusses below) began. Id. at 7-8. And third, the plaintiffs argue that they established a prima facie 76 case of adverse impact. Id. at 8-9. *76 The court now addresses each of these arguments in turn.
The plaintiffs advance four arguments in support of their contention that the buyouts were not voluntary as a matter of law. They assert that (1) the court erroneously adopted the "voluntariness" standard employed by the Merit Systems Protection Board ("MSPB") rather than the proper standard under the ADEA, and under the correct standard the buyouts were involuntary, id. at 2-3; (2) the court misapplied the Circuit's holding in Schmid v. Frosch, 680 F.2d 248 (D.C.Cir.1982), id. at 3-4; (3) the voluntariness of the buyouts is at a minimum a disputed question of fact, id. at 4-5; and (4) their declarations demonstrate that the buyouts were, in fact, involuntary, id. at 5-7. The defendants disagree, asserting that the court correctly addressed the voluntariness issue in its memorandum opinion of September 18, 2008. Defs.' Opp'n at 3-8.
The plaintiffs' arguments on the voluntariness issue essentially reiterate those made in their opposition to the defendant's motion for summary judgment. See Pls.' Opp'n to Defs.' Mot. for Summ. J. at 34-35 (arguing that "[t]he standards for an MSPB appeal are irrelevant to analysis of the [plaintiffs'] ADEA claim"); id. at 17 (maintaining that the buyouts were involuntary as defined in Schmid v. Frosch); id. at 15-17 (asserting that the buyouts were involuntary). Indeed, the court addressed all of these arguments in its memorandum opinion

granting the defendant's motion for summary judgment. 576 F.Supp.2d at 119-120. As a result, the points that the plaintiffs raise with respect to the voluntariness of the buyouts constitute an impermissible attempt to relitigate issues on which the court has already ruled. See New York, 880 F.Supp. at 38.
The plaintiffs' next argument also echoes one made in their opposition to the defendant's summary judgment motion. In that submission, the plaintiffs asserted that the RIF was a pretext for unlawful age discrimination because the Agency "planned further downsizing so that [it] could commence recruitment for new employees on the campuses of colleges and universities and community centers under the new Corporate Employee program." Pls.' Opp'n to Def.'s Mot. for Summ. J. at 4. In its September 18, 2008 memorandum opinion, the court rejected this argument, observing that DRR only hired five new employees during 2005 0907two of whom were over age fifty0907while it reduced its workforce by nearly 300. 576 F.Supp.2d at 128. The court also noted that
the new positions were for workers assuming different responsibilities for lower pay in different departments than the plaintiffs. Clearly, the two groups are not so similarly situated as to support the proposition that the FDIC conducted the voluntary buyout, transfers and RIF as an elaborate ruse to flush the agency of senior staff.
Id.
The plaintiffs now assert that the court erred by misstating the year in which the Corporate Employee program began. Pls.' Mot. at 7-8. They point out that "[w]hile the recruiting initiative may have begun in 2002," as the court stated it did, "there were no Corporate Employee students or facility until September 2005." Id. at 7. But as the defendant correctly observes, Def.'s Opp'n at 8, the court's analysis hinged not on the date on which the Corporate Employee program began, but on the fact that the plaintiffs and the employees hired through the Corporate Employee program were not similar enough in 0907 their respective numbers or in their employment 77 characteristics to 0907 make a pretext claim plausible, 576 F.Supp.2d at 128. Therefore, the court declines to alter *77 or amend its judgment. See New York, 880 F.Supp. at 38.
The plaintiffs' final argument fares no better. The plaintiffs contend that they established a prima facie case of adverse impact because the "reorganization plan affected all DRR employees, and is a `specific employment practice'" as defined in Smith v. City of Jackson, 544 U.S. 228, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005). Pls.' Mot. at 8-9. The defendant responds by urging that the plaintiffs' adverse impact claim must fail because the reorganization plan was not a "specific employment practice." Def.'s Opp'n at 9-10. As in the plaintiffs' first two arguments, the court addressed whether the reorganization plan was a "specific employment practice" in its memorandum opinion of September 18, 2008, 576 F.Supp.2d at 127. Consequently the point warrants no further discussion here, see New York, 880 F.Supp. at 38, except to note the following: the court's grant of summary judgment on the adverse impact claim did not rest solely on the determination that the reorganization plan was not a "specific employment practice." To the contrary, the court also held that the plaintiffs failed to "show that the RIF adversely impacted older employees," 576 F.Supp.2d at 127, and noted that "[f]urther, the defendant has produced evidence indicating that the 2005 downsizing throughout the FDIC in general and the RIF in DRR in particular were based on a reasonable factor other than age a 0907 reduced workload," id. at 127. As a result, the plaintiffs' argument that they are entitled to reconsideration of the dismissal of their suit because the reorganization plan was a "specific employment practice" fails.
IV. CONCLUSION
For the foregoing reasons, the court denies the plaintiffs' motion to alter or amend judgment. An Order consistent with this Memorandum Opinion is separately and contemporaneously issued this 10th day of June, 2009.
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 (2008)
Barbara ALIOTTA et al., Plaintiffs, v.
Sheila C. BAIR, In her official capacity as Chairman, Federal Deposit Insurance Corporation, Defendant.
Civil Action No. 05-02325 (RMU).
United States District Court, District of Columbia.
September 18, 2008.
MEMORANDUM OPINION
GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; DENYING THE PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
RICARDO M. URBINA, District Judge.
I. INTRODUCTION
This case comes before the court on the defendant's motion for summary judgment and the plaintiffs' motion for partial summary judgment on the issue of liability. The plaintiffs, former and current employees of the Division of Resolutions and Receiverships of the Federal Deposit Insurance Corporation ("FDIC" or "the defendant" or "the Agency"), bring a class action suit under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., alleging age discriminatory employment practices. The plaintiffs move for partial summary judgment on the grounds that the defendant's 2005 downsizing effort, which included buyouts, transfers and a reduction in force ("RIF"), had an adverse impact on employees over the age of 50. The defendant in turn moves for summary judgment, contending that the plaintiffs have failed to establish a case of disparate impact or disparate treatment caused by the RIF itself, which they maintain is the only adverse employment action contemplated in the downsizing. Because the plaintiffs have not demonstrated that the buyouts or transfers were involuntary, and because the plaintiffs have not established that the RIF, independently considered, had a discriminatory effect on older employees, the court grants the defendant's motion for summary judgment and denies the plaintiffs' motion for partial summary judgment on the issue of liability.
II. BACKGROUND
A. Factual History

The following facts are undisputed. The FDIC is an independent federal agency that insures deposits in almost all U.S. banks, regulates state-chartered banks that are outside the Federal Reserve System and receives and manages the assets of failed banks. Def.'s Mot. for Summ. J. ("Def.'s Mot.") at 3. The FDIC's workload fluctuates with the nature of the banking industry; it peaked during the savings and loan and bank crises of the late 1980s and early 1990s and ebbed as the number of bank failures declined in the mid-1990s. Id. at 4; Am. Compl. ¶ 56. In the fourteen-year period between 1980 and 1994, 1600 FDICinsured institutions failed or received financial assistance; as the crisis abated, the number of failures decreased, and only one FDIC-insured bank failed in 1997. Def.'s Mot. at 4-5. FDIC used both buyouts and reductions in force to diminish its workforce between 1995 and 2003. Pls.' Reply in Support of Pls.' Mot. for Summ. J. ("Pls.' Reply") at 4.
The FDIC's Division of Resolutions and Receiverships ("DRR") manages assets from failed banking institutions. Def.'s Mot. at 9. On August 19, 2004, DRR Director Mitchell Glassman sent a memorandum to all DRR employees stating, "it is apparent that fewer problem institutions and our adoption of more efficient business processes have led to a declining workload and excess staff." Def.'s Mot., Ex. 2. In October 2004, Glassman informed DRR employees that management planned to reduce DRR staff from 515 positions to approximately 240 positions, a reduction of 53%. Am. Compl. ¶ 68. Glassman stated that the Agency hoped to attain these staffing levels through a buyout program and opportunities for DRR employees to cross-over to the Division of Supervision and Consumer Protection ("DSC"), but that management also projected a need for an involuntary RIF by the end of 2005. Def.'s Mot., Ex. 7 ("Glassman Memo").
On October 26, 2004, John F. Bovenzi, Deputy to the Chairman and Chief Operating Officer of the FDIC, sent an e-mail to all Agency employees describing a buyout program and an RIF that would be implemented in the following months. Def.'s Mot., Ex. 6 ("Bovenzi Memo"). Bovenzi stated that five Agency divisions, including DRR, had workforce levels unjustified by current workload and would be targeted for downsizing in 2005. Id. The e-mail said that the Agency would offer buyouts to most employees in those divisions and that limited buyout offers would be extended to employees in non-targeted divisions as well. Id. An intranet posting in November 2004 explained the reorganized staffing structure and described some new positions that would be created within the post-RIF DRR structure. Def.'s Mot., Ex. 10 ("DRR Posting").
The buyouts described in Bovenzi's email of October 26, 2004, offered to most employees in DRR and, on a more limited basis, to employees throughout the Agency, included a cash payment equal to 50% of annual salary, the ability to combine the buyout with early or regular retirement agreements, no restriction on re-employment in another federal agency and other incentives. Bovenzi Memo. The buyout period lasted from November 2004 to May 2, 2005; management retained discretion to determine employees' departure dates based on workload factors. Id. In DRR, 132 employees accepted the buyout offer; the Agency no longer considered those employees who accepted a buyout for positions remaining in the post-RIF, restructured DRR. Def.'s Mot. at 15. In total, 578 FDIC employees accepted a buyout package. Pls.' Reply at 4. Additionally, 73 DRR employees transferred to other FDIC divisions prior to the distribution of any RIF notices. Pls.' Mot. for Partial Summ. J. ("Pls.' Mot.") ¶ 31.

The Agency proceeded with the RIF in 2005 in negotiation with the National Treasury Employees Union, the collective bargaining group of FDIC employees. Def.'s Mot. at 15-16. In total, 73 DRR employees transferred to other FDIC divisions prior to the distribution of any RIF notices. Def.'s Resp. to Pls.' Statement of Undisputed Facts ("Def.'s Resp.") ¶ 31. On June 30, 2005, the Agency notified 63 DRR employees that they had been selected for RIF terminations; their employment terminated September 3, 2005. Def.'s Statement ¶ 63. The RIF notifications described the factors considered in selecting employees for involuntary termination: veteran's preference, civil service tenure, length of federal service and performance ratings. Def.'s Mot., Ex. 21 ("RIF Notice"). The FDIC terminated 53 employees, 7 retired in lieu of separation and 3 resigned in lieu of separation; after the RIF, 233 DRR employees remained. Def.'s Resp. ¶¶ 67-68.
Analyzing only the 53 involuntary separations, 7 retirements in lieu of involuntarily separation and 3 resignations in lieu of involuntarily separation (63 total), the defendant's expert, industrial and organizational psychologist Dr. P.R. Jeanneret, Ph. D., found that the average age of employees affected by the 2005 RIF was 48.28 years. Def.'s Mot., Ex. 27 ("Jeanneret Report") at 6. Of those 63 employees, 57.1% were younger than 50 and 42.9% were over age 50. Id. at 19. DRR employees averaged 51.96 years of age on November 1, 2004, and 51.81 on September 17, 2005. Id. at 16. On November 1, 2004, 58.3% of DRR employees were over the age of 50; employees under the age of 50 made up 41.7% of DRR workforce. Id. at 17. On September 17, 2005, 59.6% of DRR employees were over age 50; 40.4% were younger. Id.
In contrast, the plaintiffs' expert, Dr. Lance Seberhagen, Ph.D., found that the 2005 downsizing had an adverse impact on employees over age 50 by examining all departures from DRR in 2005. Def.'s Mot., Ex. 28 (Seberhagen Report) at 3. Seberhagen determined that 34.9% of DRR employees on January 1, 2005, were under age 50 and 65.1% were over 50. Id. at 8. Seberhagen calculated "RIF-related" impact based on departure codes assigned to voluntary retirements, early retirements, retirements in lieu of involuntary separation, resignations in lieu of involuntary separation, resignations, terminations of FDIC appointment and involuntary terminations.[1] Id. at 17. Using those separation categories, Seberhagen determined that, of all DRR employees who left the Agency in 2005, 24.3% were under age 50 and 75.7% were over 50. Id.
B. Procedural History
The original 19 plaintiffs filed notice of intent to sue with the Equal Employment Opportunity Commission ("EEOC") on October 31, 2005. Am. Compl. ¶ 4. Additional plaintiffs filed similar notices with the EEOC on November 10, 2005, and December 5, 15 and 22, 2005, and January 3 and 20, 2006. Id. All the plaintiffs served the FDIC with a copy of the notice of intent to sue on the same day they filed with the EEOC. Id. The plaintiffs also notified the EEOC and the FDIC of their intent to file a class action suit. Id. The original plaintiffs filed their complaint with this court on December 5, 2005, and amended it to include additional plaintiffs on February 8, 2006. On July 25, 2006, the court certified the plaintiffs as a class of "Former or present employees of FDIC's Division of Resolution and Receiverships who were born on a date on or before September 30, 1955, and who, as a result of the 2005 RIF, either accepted a buyout or reduction in grade, or were terminated from their positions in the DRR." Aliotta v. Gruenberg, 237 F.R.D. 4,13 (D.D.C.2006).[2]

The plaintiffs filed a motion for partial summary judgment for the issue of liability on February 25, 2008, on the grounds that the Agency's 2005 downsizing had an adverse impact on DRR employees over the age of 50. The same day, the defendant filed a motion for summary judgment claiming that the plaintiffs failed to show that the 2005 RIF was motivated by a discriminatory purpose or that it had a disparate impact on older DRR employees.
III. ANALYSIS
A. Legal Standard for Summary Judgment
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories,.and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C.Cir.1995). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id.
The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he "support[s] his allegations . . . with facts in the record," Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993)), or provides "direct testimonial evidence," Arrington v. United States, 473 F.3d 329, 338 (D.C.Cir.2006). Indeed, for the court to accept anything less "would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial." Greene, 164 F.3d at 675.
Finally, the D.C. Circuit has directed that because it is difficult for a plaintiff to establish proof of discrimination, the court should view summary-judgment motions in such cases with special caution. See Aka v. Wash. Hosp. Ctr., 116 F.3d 876, 879-80 (D.C.Cir.1997), overturned on other grounds, 156 F.3d 1284 (D.C.Cir.1998) (en banc).
B. Legal Standard for Age Discrimination

Generally, to prevail on a claim of discrimination under the ADEA, a plaintiff must follow a three-part burden-shifting analysis generally known as the McDonnell Douglas framework. Lathram v. Snow, 336 F.3d 1085, 1088 (D.C.Cir.2003). The Supreme Court explained the framework as follows:
First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection" . . . Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination . . . The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.
Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (internal citations omitted) (quoting McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)).
To establish a prima facie case of age discrimination under the ADEA, the plaintiff must demonstrate "facts sufficient to create a reasonable inference that age discrimination was a determining factor in the employment decision." Cuddy v. Carmen, 694 F.2d 853, 856-57 (D.C.Cir.1982); Miller v. Lyng, 660 F.Supp. 1375, 1377 (D.D.C.1987). The plaintiff creates such an inference if he shows (1) he belongs to the statutorily protected age group; (2) he was qualified for his position and was performing his job well enough to meet his employer's legitimate expectations; (3) he suffered an adverse employment action despite his qualifications and performance; and (4) he was disadvantaged in favor of similarly situated younger employees. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Hall v. Giant Food, Inc., 175 F.3d 1074, 1077 (D.C.Cir.1999); Paquin v. Fed. Nat'l Mortgage Ass'n, 119 F.3d 23, 26 (D.C.Cir.1997) (citing Coburn v. Pan Am. World Airways, Inc., 711 F.2d 339, 342 (D.C.Cir.1983)).
"The burden of establishing a prima facie case of disparate treatment is not onerous." Burdine, 450 U.S. at 253, 101 S.Ct. 1089. If the plaintiff establishes a prima facie case, a presumption then arises that the employer unlawfully discriminated against the employee. Id. at 254, 101 S.Ct. 1089. To rebut this presumption, the employer must articulate a legitimate, nondiscriminatory reason for its action. Id. The employer "need not persuade the court that it was actually motivated by the proffered reasons." Id. Rather, "[t]he defendant must clearly set forth, through the introduction of admissible evidence, reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993),
If the employer successfully presents a legitimate, non-discriminatory reason for its actions, "the McDonnell Douglas framework—with its presumptions and burdens—disappears, and the sole remaining issue is discrimination vel non." Lathram, 336 F.3d at 1088 (internal citations omitted); Brady v. Office of the Sergeant at Arms, U.S. House of Representatives, 520 F.3d 490, 494 (D.C.Cir.2008) (noting that "the prima facie case is a largely unnecessary sideshow"). The district court need resolve only one question: "Has the

employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race, color, religion, sex, or national origin?" Brady, 520 F.3d at 494 (D.C.Cir.2008). The court must consider whether the jury could infer discrimination from (1) the plaintiffs prima facie case, (2) any evidence the plaintiff presents to attack the employer's proffered explanation, and (3) any further evidence of discrimination that may be available to the plaintiff. Waterhouse v. District of Columbia, 298 F.3d 989, 992-93 (D.C.Cir.2002) (quoting Aka, 156 F.3d at 1289). The plaintiff need not present evidence in each of these categories in order to avoid summary judgment. Aka, 156 F.3d at 1289. Rather, the court should assess the plaintiffs challenge to the employer's explanation in light of the total circumstances of the case. Id. at 1291.
C. Because the Voluntary Buyout Program is not an Adverse Employment Action, It Cannot be Considered as Part of the Plaintiffs' Prima Facie Discrimination Case
Before turning to the Brady analysis of the defendant's nondiscriminatory justification, the court must consider whether all or only part of the downsizing constituted an adverse employment action sufficient to sustain a disparate treatment or disparate impact claim. The plaintiffs argue that the buyouts and RIF were a complete program that adversely affected older employees. Thus, the plaintiffs' statistical evidence considers all "RIF-related" separations to find that older employees fared worse in 2005 than their younger counterparts. Pls.' Opp'n at 20. The defendant argues that the buyouts were separate from the RIF; and, if one only considers the RIF separations (and excludes the voluntary buyouts), the RIF actually advantaged older employees. Def.'s Mot. at 24. In short, while the downsizing impacted the entire class of plaintiffs, the parties dispute whether all of the plaintiffs were harmed. Some of the plaintiffs accepted buyout incentives combined with normal or early retirement packages, others received specific RIF notices and were involuntarily separated or retired or resigned in lieu of involuntary separation, and some remain employed by the FDIC in a lower pay grade. Am. Compl. ¶¶ 6, 9, 28.
The D.C. Circuit defines adverse employment action as "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits." Taylor v. Small, 350 F.3d 1286, 1293 (D.C.Cir.2003). The voluntariness of a choice between early retirement and continued employment "turns on such things as: did the person receive information about what would happen in response to the choice? was the choice free from fraud or other misconduct? did the person have an opportunity to say no?" Henn, 819 F.2d at 828. Retirements or resignations from government employment are presumptively voluntary. Staats v. U.S. Postal Serv., 99 F.3d 1120, 1123 (Fed.Cir.1996); Keyes v. District of Columbia, 372 F.3d 434, 439 (D.C.Cir.2004) (stating "a retirement request initiated by an employee is presumed to be a voluntary act") (quoting Schultz v. U.S. Navy, 810 F.2d 1133, 1136 (Fed.Cir.1987)). A plaintiff can only overcome that presumption by showing that misinformation or coercion prompted the choice. Staats, 99 F.3d at 1124. A short period of

time in which to make a complicated decision might also indicate that a choice was involuntary. Henn, 819 F.2d at 828-29.
In light of the above, the court agrees with the defendant that the buyout program was not an adverse employment action. Those plaintiffs who accepted a buyout and left the FDIC certainly faced a "significant change in employment status," i.e., they left their employment, but the plaintiffs' change in status was not a management decision. It was their own. All the employees who accepted a buyout combined with retirement or resignation signed a "Statement of Intent" that included the clause: "My decision to resign is entirely voluntary and has not been coerced." Def.'s Mot., Ex. 14. Indeed, courts have generally found early retirements beneficial to employees and insufficient grounds for a claim of age discrimination. See Henn v. Nat'l Geographic Soc'y, 819 F.2d 824, 828 (7th Cir.1987) (describing an offer of early retirement as a "boon" to the employee).
The plaintiffs insist that the buyouts were involuntary because they were faced with an impossible choice between accepting a severance package or "face a greater than 50% prospect of involuntary termination with no early retirement or incentive payment." Pls.' Opp'n at 26. The court recognizes that "[a]n employer's `offer' of early retirement may create a prima facie case of age discrimination by constructive discharge if it sufficiently alters the status quo that each choice facing the employee makes him worse off." Bodnar v. Synpol, Inc., 843 F.2d 190, 193 (5th Cir.1988). But, while a decision motivated by "terror of the alternative" is not voluntary, Henn, 819 F.2d at 829, a decision between early retirement and the risk of termination in a downsizing or reorganization is not sufficiently terrorizing to make acceptance of the early retirement incentive categorically involuntary. Bodnar, 843 F.2d at 194; see also Coburn, 711 F.2d at 344 (stating that, in a downsizing, "early retirement is a common corporate practice utilized to prevent individual hardship" and the practice is "well accepted by both employers and employees, and is purely voluntary").
In an RIF, "the risk inhered in eligible employees' failure to accept [early retirement], the risk that their jobs might be eliminated because of economic pressure on the company, is . . . insufficient to suggest age discrimination.... [The] risk would be shared by all remaining employees." Bodnar, 843 F.2d at 194. The option of early retirement can be beneficial to eligible employees because, while the risk in a RIF is shared by the entire workforce, the availability of an early retirement option affords eligible employees (like the plaintiffs) "a means to mitigate that risk which was not available to other employees." Id. Indeed, courts have called early retirement programs "in many situations, the fairest alternative available to a company," id. at 192, and "a humane practice," Coburn, 711 F.2d at 344. A voluntary buyout program combined with early or normal retirement or resignation is not an adverse employment practice.
Here, the FDIC offered buyouts to most employees in DRR and throughout the Agency. Bovenzi Memo. FDIC notified employees of the pending RIF and of the number of positions that would remain. See Glassman Memo; DRR Posting. Further, the FDIC notified all eligible employees of the parameters of the buyout program and allowed them five months to consider and accept. Bovenzi Memo. The plaintiffs present no evidence of fraud or misconduct by the FDIC, except to generally state, without support, that the Agency failed to respect "bump" and "retreat" rights as mandated by federal RIF regulations. Pls.' Opp'n at 36. However, that vague allegation is irrelevant to the issue of FDIC's method of conducting

the buyout program because "bump" and "retreat" rights only come into play when a RIF is actually implemented. 5 C.F.R. Part 351. The court, therefore, concludes that those plaintiffs who accepted a buyout and normal or early retirement did not face an adverse employment action because they voluntarily participated in the incentive program.
Nor were the buyouts otherwise adverse. Although the plaintiffs do not claim they were constructively discharged, their inclusion of the voluntary buyout packages with the mandatory RIF involuntary terminations depends on such an argument to establish the existence of an adverse employment practice. See Johnson v. Runyon, 137 F.3d 1081, 1082-83 (8th Cir.1998). An actionable constructive discharge claim requires showing that (1) intentional discrimination existed, (2) the employer deliberately made working conditions intolerable, and (3) aggravating factors justified the plaintiffs conclusion that she had no option but to end her employment. Carter v. George Washington Univ., 180 F.Supp.2d 97, 110 (D.D.C.2001) (citing Clark v. Marsh, 665 F.2d 1168, 1173-74 (D.C.Cir.1981)); see Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1558 (D.C.Cir.1997) (holding that a plaintiff alleging constructive discharge must show that the "employer deliberately made working conditions intolerable and drove the employee out" of the position).
"To transform an offer of early retirement into a constructive discharge, a plaintiff must show that the offer was nothing more than a charade, that is, a subterfuge disguised to purge plaintiff from the ranks because of his age." Vega v. Kodak Caribbean, 3 F.3d 476, 480 (1st Cir.1993). An offer of early retirement or continued employment with the risk of termination in a pending RIF is a constructive discharge only if there is really no choice or if the employees' power to choose work over retirement is eliminated. Id. Here, the plaintiffs' claim depends on considering both the buyout program and the RIF terminations as adverse employment actions. Pls.' Opp'n at 13. Those employees involuntarily separated and those who retired or resigned in lieu of involuntary separation certainly faced an adverse employment action. However, those employees who accepted voluntary buyouts combined with retirement or resignation were not adversely affected by the RIF. Certainly, those employees faced a difficult decision between leaving the FDIC unexpectedly early and risking termination in the announced RIF in DRR, but none of the employees who accepted the buyout incentives knew they would be specifically targeted for termination. Vega, 3 F.3d at 480. Indeed, the Agency did not know how many employees would receive RIF notices until after concluding the buyout program throughout the FDIC, including DRR and most other divisions. See Glassman Memo.
A choice between retirement or continued, if risky, employment is not a constructive discharge when the particular employees offered the choice are not facing certain termination if they remain with the downsizing employer. Id. "Broadbased subjugation to the risk of future termination is common fare in a depressed economic climate. It, alone, is insufficient to constitute constructive discharge." Id. at 481; see also Terban v. Dep't of Energy, 216 F.3d 1021, 1026 (Fed.Cir.2000) (noting "a choice is not involuntary simply because an employee is faced with an inherently unpleasant situation or his choice is limited to two unpleasant alternatives"); Keyes, 372 F.3d at 440 (holding that a choice between retirement or retaining employment while fighting charges of inadequate job performance "may have been difficult, [but] it was a voluntary decision nonetheless"); Rowell v. BellSouth Corp., 433 F.3d 794, 806 (11th Cir.2005) (holding that a choice between a severance benefit and possibly retaining employment was not a "take-it-or-leave-

it situation" and that "an employee who accepts the severance package rather than wait to see if he can remain employed cannot claim that he was constructively discharged").
The plaintiffs claim that they felt pressured to accept the buyouts and believed they had no choice but to accept the incentives and leave the FDIC after the Agency announced a drastic reduction in the DRR workforce. Pls.' Opp'n at 13. However, "an employee's perceptions cannot govern a claim of constructive discharge if, and to the extent that, the perceptions are unreasonable." Vega, 3 F.3d at 481. Objectively, the plaintiffs did not face a choice between buyout and discharge. An employer does not constructively discharge employees when it announces that if a sufficient number of employees accept a buyout the planned RIF will be unnecessary, when it does not indicate which specific employees' positions would be eliminated in the RIF, and when it does not threaten to treat harshly those employees ultimately selected for termination. Id. at 480-81. When all employees face the same working conditions, or the same risks of a RIF, no employee group can claim constructive discharge. See Bodnar, 843 F.2d at 193.
Those plaintiffs who accepted a buyout incentive had a choice between early or normal retirement and the chance of continued employment with the Agency. In fact, 233 of their coworkers, including many over the age of 50, remained with DRR, 73 transferred within the FDIC and 6 transferred to another federal agency. Def.'s Mot. Ex. 23 at 1-14. Additionally, the plaintiffs do not allege that the Agency ever threatened to treat badly or unfairly those employees ultimately selected for the RIF. The majority of employees who received RIF notices collected severance pay and had access to career counseling resources.[3]
The plaintiffs have also failed to show that older employees faced a higher risk of termination than younger employees in the pending RIF. After the buyout period closed, all 312 remaining DRR employees faced the same risk of termination. And older employees fared better in the RIF.[4] Those plaintiffs who accepted the offered incentives avoided the risk of involuntary termination and cannot claim the pre-RIF voluntary buyout offers were adverse employment actions.
The plaintiffs rely on Schmid v. Frosch to claim that "it is improper to limit the analysis of the effects of a downsizing plan to the people who suffer involuntary terminations. Rather, the proper statistical analysis looks at all employees harmed by the RIF." Pls.' Opp'n at 21 (citing Schmid v. Frosch, 680 F.2d 248, 250 (D.C.Cir. 1982)). While the D.C. Circuit in Schmid did allow the plaintiff in that case to statistically consider more employees than were separated as a result of a RIF, the court only allowed analysis of those employees who were "harmed," defining "harmed" employees as those who received RIF notices and were either separated or downgraded as a result. 680 F.2d at 250. Here, the plaintiffs' statistical evidence of the RIF in DRR includes those employees who were involuntarily separated or downgraded and those that left before any RIF notices were issued. Seberhagen Report at 3; Pls.' Reply at 7. The plaintiffs, thus, overextend the holding of Schmid to include DRR employees who accepted buyouts between November 2004 and May 2005. This is incompatible with the court's holding today that no plaintiffs suffered an adverse employment action by being offered and accepting voluntary buyouts.
In conclusion, because the voluntary buyouts are not adverse employment actions, they cannot comprise any part of the plaintiffs' prima facie case of discrimination. The RIFs

themselves, however, were adverse employment actions. The court, therefore, now considers whether the plaintiffs have sufficiently supported their claims based on the RIF's to survive summary judgment by rebutting the defendant's proffered nondiscriminatory reasons.
D. The Plaintiffs' Disparate Treatment Claim Fails because the Plaintiffs have not Adequately Rebutted the Defendant's Proffered Nondiscriminatory Reason
In an effort to discredit the defendant's proffered nondiscriminatory reason for the 2005 RIF or, alternatively, to show direct evidence of discriminatory intent, the plaintiffs allege thenChairman Powell made discriminatory statements regarding the benefits of youth in the Agency. See Pls.' Mot. at 4. This court in Evans v. Atwood denied summary judgment to a federal employer, USAID, when the plaintiffs presented evidence that the Administrator of the agency told The Washington Post that he intended to "move out" senior employees to fill their positions with "younger people." 38 F.Supp.2d 25, 36 (D.D.C.1999). The plaintiffs in that case also presented evidence that an internal management memorandum stated, "the lack of young professionals in the ranks. . . has an impact beyond replacement. The infusion of new ideas and different approaches to problem solving are mandatory for a development agency." Id. at 35. The court denied the defendant's summary judgment motion because the statements raised a reasonable inference that management's sentiment could "trickle down" to create a culture of stigmatizing stereotypes within the agency. Id. at 36. The court concluded that comments by the head of the agency "could very well carry great weight in terms of molding the agency's culture and beliefs." Id. (citing Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 334 (3d Cir.1995)).
In contradistinction, the plaintiffs' allegations regarding Chairman Powell's statements fall far short of raising a reasonable inference of age discrimination in the 2005 RIF. The plaintiffs claim that Chairman Powell said in 2001 and 2002 that young people "have all the innovative ideas" and, in summer 2002, said it was time for older employees to "give the younger employees a chance." Id. ¶¶ 58-59. Yet plaintiffs do not present evidence to support their claim that Chairman Powell actually made the remarks. In fact, in his deposition, Chairman Powell only stated that he had probably talked about the benefits of youth within the organization; he also stated he talked about the benefits of experience. Pls.' Opp'n, Ex. 10 at 3.[5] Despite extensive discovery, the plaintiffs do not provide a statement by any witness to Chairman Powell's alleged comments, nor any internal documents to give credence to their claim that upper-level FDIC management sought to reduce the ranks of older employees within the agency in 2005.
The plaintiffs also do not provide evidence to rebut the Agency's claim that the RIF targeted DRR because of the division's reduced workload caused by the health of the banking industry. The plaintiffs claim that the Agency targeted DRR because it was significantly older than the other divisions by average age of its workforce. Am. Compl. ¶ 89. Plaintiffs fail to provide evidence comparing DRR's average age to that of any other division in the FDIC. The defendant, in fact, provided evidence that DRR's workforce was older on average than the total FDIC workforce. Def.'s Mot. Ex. 23 at 27; Jeanneret Report at 16. In 2000, the average age of all FDIC career employees was 44.63; the average age in DRR

was 49.84. Id. On November 1, 2004, just before the Agency offered buyouts, the average age throughout the FDIC was 46.63 and the average age in DRR was 51.96, id., but the plaintiffs do not demonstrate that any manager or officer at FDIC knew that DRR was an "old division" or otherwise considered age in targeting the division to downsize, evidence that could show the defendant's proffered nondiscriminatory reason for the RIF was a pretext.[6]
Additionally, the average age of the FDIC and DRR increased between 2000 and 2005, evidence that discredits the plaintiffs' claim of age discrimination by design or effect. Def.'s Mot. Ex. 23 at 27; Jeanneret Report. Courts have held that in the case of a RIF, a statistically insignificant decrease in average age does not provide evidence of age discrimination. See Stidham v. Minn. Mining and Mfg., 399 F.3d 935, 938 (8th Cir.2005) (finding a half-year increase in the average age of the defendant-employer's workforce after a RIF insignificant). A slight difference in age between the group of eliminated employees and the age of the group of employees subject to the RIF is also insignificant. See Bender v. Hecht's Dep't Stores, 455 F.3d 612, 622 (6th Cir.2006) (noting that when the terminated employees were 1.7 years older on average than the body of employees subject to the RIF there was no evidence of disparity). Here, the statistical evidence belies the plaintiffs' argument. Between December 2004 and December 2005, a period encompassing the RIF, the average age of DRR employees remained 52.10 years of age. Jeanneret Report at 16. The average age of the entire FDIC workforce increased slightly from 46.63 years in December 2004 to 46.69 years in December 2005. Def.'s Mot., Ex. 23 at 16. Moreover, the average age of the 312 DRR employees subject to the RIF in September 2005 was 50.52 years, and the average age of the RIF-terminated employees was 47.86 years. Id., Ex. 27-1 at 20. The statistical evidence does not support the plaintiffs' claim of age discrimination through disparate treatment.
E. The Plaintiffs' Disparate Impact Claim Fails because they Fail to Rebut the Defendant's Nondiscriminatory Justifications
Employment discrimination disparate impact claims "involve 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." Hazen Paper, 507 U.S. at 609, 113 S.Ct. 1701. As opposed to a disparate treatment claim, a disparate impact claim does not require proof of discriminatory intent. Id. By applying interpretations of similar language found in Title VII's prohibition against discriminatory employment practices based on race or gender, the Court in Smith v. City of Jackson allowed a disparate impact claim under the ADEA. 544 U.S. 228, 240, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005). The Court acknowledged, however, that the scope of ADEA disparate impact claims is narrower than that of such claims brought under Title VII because age is occasionally relevant in determining certain workplace capabilities. Id. For this reason, Congress excepted otherwise-prohibited employment actions that adversely impact the protected group, if justified by a reasonable factor other than age ("RFOA"). Id. The employer bears both the burden of production and the burden of persuasion when advancing an RFOA defense. Meacham v. Knolls Atomic Power Lab., Inc., ___ U.S. ___, ___, 128 S.Ct. 2395, 2401, 171 L.Ed.2d 283 (2008). Thus, certain employment criteria that have an adverse impact on older

employees may be reasonable, as long as the employer discriminates because of an employee's capacity to perform rather than his age as merely a number. City of Jackson, 544 U.S. at 240-41, 125 S.Ct. 1536. The reasonableness standard for age-based disparate impact claims demands less than a "business necessity test" and does not require proof that there are no alternative employment practices that would have a lesser disparate impact on the protected group. Id. at 243, 125 S.Ct. 1536.
Assuming arguendo that a disparate impact claim is legally cognizable against a federal employer,[7] the plaintiffs have not met the standard for bringing such a claim. To prove a disparate impact claim, a plaintiff must show that a specific employment practice resulted in a greater injury to older employees when compared to younger employees. See Breen v. Mineta, 2005 WL 3276163, at *7 (D.D.C. Sept.30, 2005) (citing City of Jackson, 544 U.S. at 241, 125 S.Ct. 1536). A claim that a 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, 2005 WL 3276163, at *7 n. 6. Plaintiffs are required to identify a specific employment practice, and the defendant has the opportunity to show that the alleged adverse impact was attributable to an RFOA. Meacham, 128 S.Ct. at 2405-06 (citing City of Jackson, 544 U.S. at 241, 125 S.Ct. 1536); see also Silver v. Leavitt, 2006 WL 626928, at *13 (D.D.C. Mar.13, 2006).
First, the plaintiffs have failed to identify a specific employment practice that resulted in an adverse impact on older employees. Their argument hinges on analyzing as a single program the RIF involuntary terminations (and retirements and resignations in lieu of termination) that occurred in September 2005 and the voluntary buyouts offered between November 2004 and May 2005. See Pls.' Mot. at 12. Yet, in a disparate impact claim, "the employee is responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities," such as a test, requirement or practice within a pay plan. City of Jackson, 544 U.S. at 241, 125 S.Ct. 1536. The plaintiffs have failed to show that a specific adverse employment practice within the 2005 downsizing resulted in a disparate impact on employees over 50.
Additionally, the plaintiffs cannot show that the RIF adversely impacted older employees. In fact, the RIF actually adversely affected younger employees disproportionately because the FDIC followed federal regulations in considering experience and seniority, factors that frequently correlate with higher ages, when terminating employees. See Def.'s Mot., Ex. 21; see also Hazen Paper, 507 U.S. at 611, 113 S.Ct. 1701 (observing that years of service often correlate with age, but that an employer may consider the former without necessarily basing a decision on the latter because they are "analytically distinct"). Of the 312 DRR employees subject to the RIF conducted September 3, 2005, 137 (43.9%) were under 50 and 175 (56.1%) were over 50. Def.'s Mot., Ex. 27-1 at 20. Of the 63 DRR employees terminated, 36 (57.1%) were under 50 and 27 (42.9%) were over 50. Id.
The 2005 downsizing also did not result in a significantly younger DRR workforce. Between 2000 and 2005, the average age of DRR employees increased from 49.84 in December 2000 to 52.10 years in December 2005. Jeanneret Report at 16. More specifically, between November 1, 2004, around the time the downsizing was announced but before any buyouts became effective, and September 17, 2005, just after the RIF was completed, the average age of DRR employees decreased insignificantly from 51.96 years to 51.81 years. Id.

Further, the defendant has produced evidence indicating that the 2005 downsizing throughout the FDIC in general and the RIF in DRR in particular were based on a reasonable factor other than age—a reduced workload. The defendant contends that the reduced workload resulted from the robust banking industry's decline in receiverships, which is the primary focus of DRR's responsibilities and functions. Def.'s Mot. at 28. Accordingly, even if the DRR was the oldest division in the FDIC, the Agency has shown that the division was not targeted because of age but because of a drastic reduction in workload.
In rebuttal, the plaintiffs assert that "the Agency planned further downsizing so that [it] could commence recruitment for new employees on the campuses of colleges and universities and community centers under the new Corporate Employee program." Pls.' Opp'n at 4. But the plaintiffs' argument of pretext collapses on inspection. The FDIC launched its recruiting initiative in 2002, 3 years before the downsizing. Def.'s Reply, Ex. 43. It offered DRR employees opportunities to apply to the Corporate Employee program through a transfer. Jeanneret Report at 23-27. And although the FDIC hired 206 employees in 2005 and the majority of these hires were under 40 years of age, the bulk of the hires were non-career appointments assigned primarily to divisions other than DRR. Saberhagen Report at 6, 10 (indicating that only 28 out of 189 new hires under age 50 were for career positions). DRR only hired 5 new employees (2 over 50 years of age) during 2005, while it reduced its workforce from over 500 to less than 240. Id. at 11. In other words, the new positions were for workers assuming different responsibilities for lower pay in different departments than the plaintiffs. Clearly, the two groups are not so similarly situated as to support the proposition that the FDIC conducted the voluntary buyout, transfers and RIF as an elaborate ruse to flush the agency of senior staff. See James v. New York Racing Ass'n, 233 F.3d 149, 152 (2d Cir.2000) (holding that hiring of a younger employee after a RIF is not evidence of age discrimination when reorganization resulted in new employees assuming different responsibilities for lower pay than the plaintiff); cf. Murray v. Gilmore, 406 F.3d 708, 711 (D.C.Cir.2005) (concluding that a reasonable jury could find an employer's RIF defense pretextual when employer created a new position functionally equivalent to the plaintiffs position soon after the latter's termination). The court, therefore, holds that the plaintiffs' evidence does not rebut the defendant's proffered legitimate, nondiscriminatory reason for the 2005 downsizing.
IV. CONCLUSION
For the foregoing reasons, the court grants the defendant's motion for summary judgment and denies the plaintiffs' motion for partial summary judgment. An order consistent with this Memorandum Opinion is separately and contemporaneously issued this 18th day of September, 2008.
[1] Seberhagen objects to Jeanneret's use of the average age of DRR employees to show a lack of adverse impact. Jeanneret objects to Seberhagen's categorization of all employee departures in 2005 as "RIF-related." Compare Def.'s Opp'n at 11 and Pls.' Mot. at 3. Rather than a dispute over numbers, the primary difference between the parties' experts' reports is the classification of "harmed" employees. See Pls.' Opp'n at 13.
[2] The original complaint was brought against Martin Gruenberg, Acting Chairman of the FDIC, in his official capacity. Shelia C. Bair, sworn in as Chairman on June 26, 2006, automatically substitutes Mr. Gruenberg as the defendant, in her official capacity, pursuant to Federal Rule of Civil Procedure 25(d).

[3] 46 of the 53 DRR employees involuntarily separated by the RIF received severance pay. Def.'s Mot., Ex. 23 ¶ 7.
[4] Of the 312 DRR employees subject to the RIF conducted September 3, 2005, 137 or 43.9% were under 50 and 175 or 56.1% were over 50. Of the 63 DRR employees actually terminated, 36 or 57.1% were under 50 and 27 or 42.9% were over 50. Def.'s Mot., Ex. 27-1 at 20. In December 2004 59.1% of DRR employees were over 50 and by December 2005, after the completion of the RIF, 61.3% of DRR employees were over age 50. Def.'s Mot., Ex. 23 at 26. Even while employees over age 50 were the majority in DRR in 2005, the majority of terminated employees were under 50.
[5] At Powell's deposition, the only specific reference to the alleged comments of age bias came from the plaintiffs' attorney. The transcript reads:
Q: Do you remember any remark made in 2001 or 2002 to a group of employees stating "I want young people around me that, pause [sic], they have all the innovative ideas" or any words to that effect?
A: I'm sure on occasions I have talked about the value of young people in an organization.
Q: Did you sometime in the summer of 2002 ask to see the hands of employees who had been with FDIC for more than 20 years?
A: I would do that often. I would ask how many people had been here less than six years, how many people had been here more than ten years, and I would say what's changed, what benefits do we have of the more experienced people, and of the younger people what do you see going on. There's wisdom, and experience, and there's lots of energy in youth. Pls.' Opp'n, Ex. 10 at 3-4.
[6] The Sixth Circuit has adopted a bright-line rule that "in the absence of direct evidence that the employer considered age to be significant, an age difference of six years or less between an employee and a replacement is not significant." Grosjean v. First Energy Corp., 349 F.3d 332, 339 (6th Cir.2003). This Circuit has settled on seven years. Dunaway v. Int'l Bhd. of Teamsters, 310 F.3d at 767 (D.C.Cir.2002) (holding an age difference of seven years insignificant without further evidence showing age was a determining factor). If there is no showing age was a determining factor, then a slight difference in age between the targeted division and the Agency as a whole cannot raise a reasonable inference of discriminatory intent.
[7] Neither the D.C. Circuit nor the Supreme Court has addressed whether ADEA disparate impact cases are legally cognizable against federal employers. See Hazen Paper, 507 U.S. at 610, 113 S.Ct. 1701; Koger v. Reno, 98 F.3d 631, 639 n. 2 (D.C.Cir.1996) (declining to decide whether such a claim was cognizable because the plaintiff failed to establish a prima facie case). The court in City of Jackson applied the Title VII interpretation to 29 U.S.C. § 623, a section that does not apply to federal employers, and there is "good reason to doubt that [federal employee] plaintiffs have a cognizable ADEA disparate impact claim." Breen v. Mineta, 2005 WL 3276163, at *7 (D.D.C. Sept.30, 2005). Members of the D.C. District Court remain divided on the issue. In Breen v. Peters, the court concluded that 29 U.S.C. § 633(a), the section prohibiting age discrimination in federal employment, did not preserve sovereign immunity against disparate impact claims because the text of the section prohibits discrimination, not intentional discrimination. 474 F.Supp.2d 1, 6 (D.D.C.2007). "The text of § 633(a) does not explicitly or implicitly require a plaintiff to prove that the federal employer was motivated by animus or intended to discriminate in violation of the law. In short, the plain language of § 633(a) does not support the distinction between disparate treatment and disparate impact." Id. In contrast, in Silver v. Leavitt, the court relied on "the significant question of sovereign immunity, and the Supreme Court's acknowledgment that the nature of the ADEA differs markedly from that of Title VII" to conclude that a disparate impact claim was not legally cognizable against a federal employer. 2006 WL 626928, at * 13 (D.D.C. Mar.13, 2006).

 
 Aliotta v. Gruenberg, 237 F.R.D. 4 (2006)

237 F.R.D. 4 United States District Court,
District of Columbia. Barbara ALIOTTA et al., Plaintiffs,
v. Martin GRUENBERG, Acting Chairman, Federal
Deposit Insurance Corporation, Defendant. Civil No. 05–2325 (RMU). | July 25, 2006.
Attorneys and Law Firms *7 Terri N. Marcus, David Louis Rose, Rose & Rose, P.C., Washington, DC, for Plaintiffs. William S. Jones, Federal Deposit Insurance Corporation, Legal Division, Washington, DC, for Defendant. Opinion
MEMORANDUM OPINION
URBINA, District Judge.
GRANTING THE PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
I. INTRODUCTION The plaintiffs are 49 current and former employees of the Federal Deposit Insurance Corporation (“FDIC”) who are all over 50 years young. The plaintiffs claim that the FDIC’s campaign to trim its workforce through a buyout program and a Reduction–in–Force program (“RIF”) violated the plaintiffs’ rights under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. The plaintiffs are now asking the court to certify their case as a class action. Because the plaintiffs satisfy Federal Rule 23’s requirements, the court grants the plaintiffs’ motion and certifies this case as a class action.
II. BACKGROUND

A. Factual Background
The FDIC is a government agency responsible for insuring money deposits at banks and savings associations across the United States. Def.’s Opp’n at 3. The plaintiffs were all employed in the FDIC’s Division of Resolutions and Receiverships (“DRR”), Am. Compl. ¶ 5, which runs receiverships of failed banks and liquidates their assets, Def.’s Opp’n at 3. All plaintiffs were employed in either the Washington, D.C. or Dallas, TX offices. Pls.’ Mot. at 18. In the 1980s and 1990s, the FDIC was busy handling the fallout from failed financial institutions during the famed savings and loan crisis. Id.; Am. Compl. ¶ 56. According to the defendant, as the banking crisis eased, so too did the *8 FDIC’s workload, and it began reducing the size of its workforce accordingly. Def.’s Opp’n at 3.
[1] According to the plaintiffs, the Director of the DRR, Michael Glassman, issued a message to all DRR employees that he was recommending to FDIC management that DRR reduce its staffing levels by more than half during 2005. Am. Compl. ¶ 68; Def.’s Opp’n at 8. Pursuant to this plan, the defendant offered a buyout (calculated by the employee’s grade and salary) to DRR employees not eligible for full retirement. Am. Compl. ¶ 74. Over 100 DRR employees accepted this buyout offer and signed documents indicating their intent to retire early.1 Id. ¶ 75.

1

These employees included plaintiffs Barrow, Brown,

Cain, Cantrell, Dillow, DuPreeEllis, Fairfield, George,

Glazener, Gray, Haag, Henderson, Hoover, Kelly, Leal,

Lett, Mann, McAnally, Montoya, Parker, Patterson,

Petri, Schirf, Scott, Shute, Thiels, Valentine, Ware, and

Williams, each of whom signed intent to retire

documents. Am. Compl. ¶ 75.

The defendant contends that Petri is not a named

plaintiff and that plaintiffs Gray and Patterson did

not accept the buyout but were separated from

employment with the FDIC pursuant to the RIF.

Ans. ¶ 75. However, these and other discrepancies

between the plaintiffs’ and defendant’s

understandings of the facts are not material

because the court accepts as true the allegations set

forth in the complaint. Shelter Realty Corp. v.

Allied Maint. Corp., 574 F.2d 656, 661 n. 15 (2d

Cir.1978); In re Lorazepam & Clorazepate

Antitrust Litig., 202 F.R.D. 12, 21 (D.D.C.2001).

A second set of plaintiffs, they allege, were separated by the FDIC on September 3, 2005.2 Am. Compl. ¶ 79. The plaintiffs claim that the FDIC separated approximately 50 other employees who did not accept the buyout offer. Id. According to the Amended Complaint, despite placing several of the plaintiffs on a re-employment priority list,
1

Aliotta v. Gruenberg, 237 F.R.D. 4 (2006)

the defendant filled vacant positions with younger and less senior employees no better qualified than older workers. Id. ¶ 80. The plaintiffs allege that plaintiff Gregory Haag, in addition to roughly 30 other employees, accepted a reduction in grade in a different division of the FDIC to avoid the RIF. Pls.’ Mot. at 6; Pls.’s Reply at 12.

2

These plaintiffs are plaintiffs Aliotta, Anderson, Avery,

Bonner, Catapat, Claude, Cline, Ellis [sic ], Elrod,

Everett, Harootunian, Kebbeh, Keller, Lindsey, Mortiz,

Powers, Wardell.

The plaintiffs allege that in total, approximately 171 DRR employees, at least 126 of whom were over the age of 50, were separated from the FDIC (either through the buyout or termination). Am. Compl. ¶ 90. The plaintiffs claim that the defendant’s RIF program and the FDIC’s implementation of that program violates the ADEA. Am. Compl. ¶¶ 99–101.

3

Plaintiffs offer two alternative class definitions. First:

Former or present employees of FDIC’s Division of

Resolution and Receiverships who were born on a date

on or before September 30, 1955 who were terminated

from their positions in the DRR, or who accepted the

buyout offer to avoid termination, as a result of the

2005 RIF, or who accepted a reduction in grade to

retain their employment. Pls.’ Reply at 9. Second:

Former or present employees of FDIC’s Division of

Resolution and Receiverships who were born on a date

on or before September 30, 1955 who were terminated

from their positions in the DRR, or who were offered

and accepted a buyout to avoid termination, as a result

of the 2005 RIF, or who accepted a reduction in grade

to retain their employment in lieu of accepting the

buyout or termination as part of the 2005 RIF. Pls.’

Reply at 13.

*9 Pls.’ Reply at 9. The court now turns to the plaintiffs’ motion.

B. Procedural Background
On October 31, 2005, the plaintiffs’ attorney sent a letter to the United States Equal Employment Opportunity Commission (“EEOC”) notifying it that “Barbara Aliotta and at least nineteen other former and current employees intend to file suit” against the FDIC pursuant to the ADEA. Def.’s Opp’n Ex. 10–1. Also on October 31, 2005, the plaintiffs’ attorney sent a letter to the FDIC stating that “at least two of the claimants may act as class agents” in the action. Def.’s Supp. Memo. Ex. B. Between October 31, 2005 and February 21, 2006, counsel sent nine additional letters to the EEOC adding current and former FDIC employees as individuals intending to file suit. Def.’s Opp’n at Exs. 10–2 through 10–10.
On December 5, 2005, the plaintiffs filed suit in this case. The plaintiffs now move for class certification pursuant to Federal Rule of Civil Procedure 23(b)(3). Pls.’ Mot. Specifically, the plaintiffs would like the court to certify the class as
Former or present employees of FDIC’s Division of Resolution and Receiverships who were born on a date on or before September 30, 1955 who were terminated from their positions in the DRR, or who were offered and accepted a buyout to avoid termination, as a result of the 2005 RIF, or who accepted a reduction in grade to retain their employment.3

III. ANALYSIS
The plaintiffs bring their case under the ADEA. The ADEA sets forth certain procedural requirements as prerequisites to filing civil suits. 29 U.S.C. § 633(d). Accordingly, in this case, class action is appropriate if the plaintiffs have satisfied the ADEA statutory requirements in addition to the specific class action requirements set forth in Federal Rules of Civil Procedures 23(a) and 23(b).
A. The Plaintiffs Satisfy the Requirements of the ADEA
[2] [3] Under the ADEA,
When the individual has not filed a complaint concerning age discrimination with the [EEOC], no civil action may be commenced by any individual under this section until the individual has given the [EEOC] not less than thirty days’ notice of an intent to file such action. Such notice shall be filed within one hundred and eighty days after the alleged unlawful practice occurred[.]
29 U.S.C. § 633a(d). The plaintiffs sent ten letters to the EEOC notifying it of the plaintiffs’ intent to file suit.
2

Aliotta v. Gruenberg, 237 F.R.D. 4 (2006)

Def.’s Opp’n Exs. 10–1 through 10–10. For example, the initial letter indicated that “Barbara Aliotta and at least nineteen other former and current employees intend to file suit.” Def.’s Opp’n Ex. 10–1. The defendant argues that the plaintiffs did not provide appropriate notice to the EEOC of their class claim. Def.’s Opp’n at 12. However, notice does not need an “explicit mention that a representative action is contemplated.”4 Anderson v. Montgomery Ward & Co., Inc., 852 F.2d 1008, 1017 (7th Cir.1988) (construing a similar section of the ADEA that governs non-federal employees as a general notice requirement). As long as the “defendant understands the magnitude of his potential liability,” notice is sufficient. Id. (holding that so long as there is an indication of an allegation of class-wide discrimination, notice may serve as a basis for suit by others who are similarly situated).

4

It would have been impossible for the plaintiffs to give

the defendants notice that they were filing a class action

because it is the court that determines if class

certification is appropriate. FED.R.CIV.P. 23.

[4] Though the statute requires only general notice for class action cases, a representative of each category of plaintiffs must have served notice. See James v. England, 332 F.Supp.2d 239, 248 (D.D.C.2004) (ruling that exhaustion of individual remedies is not required to be a member of a class); Bradley v. Kissinger, 418 F.Supp. 64, 66 (D.D.C.1976); Anderson, 852 F.2d at 1016 (ruling that Congress did not intend to require that every litigant make a timely filing before commencing an ADEA action in District Court). The plaintiffs in this case fall generally into two categories: those that accepted an offer either for a buyout or reduction in grade, and those that the FDIC terminated pursuant to the RIF. With regard to notice by a representative of the first group, plaintiff Cain, who accepted a buyout and was separated from the FDIC on May 14, 2005, was included in the plaintiffs’ first notice of intent letter sent to the EEOC on October 31, 2005, less than 180 days after the alleged unlawful practice occurred. Def.’s Opp’n at Ex. 10–1. With regard to the second group, plaintiff Aliotta, who was separated from the FDIC by the RIF on September 3, 2005, was included in the plaintiffs’ first notice of intent letter sent to the EEOC on October 31, 2005, less than 180 days after the alleged unlawful practice occurred. Id. This suit was then filed on December 5, 2005, more than thirty days after the EEOC received the plaintiffs’ notice of intent to file suit. Compl.; 29 U.S.C. § 633a(d). Therefore, those potential class members who voluntarily accepted the buyout or a reduction in grade and those who were involuntarily separated through the *10 RIF are represented by plaintiffs who have complied with the requirements of the ADEA.

B. The Plaintiffs Satisfy the Criteria of Rule 23(a) for Class Certification
1. Legal Standard for Class Certification
[5] [6] [7] [8] Federal Rule of Civil Procedure 23 sets forth the requirements for class certification. FED.R.CIV.P. 23. Congress designed the rule to promote the efficient and economical conduct of litigation. Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 553, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). A class action generally enables courts “to treat common claims together, obviating the need for repeated adjudications of the same issues.” In re Gen. Motors Corp. Pick–Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 783 (3d Cir.1995). An exception to the usual rule that litigation is conducted by and on behalf of the individually named parties only, the class action is “peculiarly appropriate” when the “issues involved are common to the class as a whole” and when they “turn on questions of law applicable in the same manner to each member of the class.” Gen. Tel. Co. v. Falcon, 457 U.S. 147, 155, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (quotations omitted). A party who seeks to certify a class bears the burden of establishing Rule 23’s requirements. Heaven v. Trust Co. Bank, 118 F.3d 735, 737 (11th Cir.1997); Reed v. Bowen, 849 F.2d 1307, 1309 (10th Cir.1988).
To obtain class certification, a party must first demonstrate that it can meet the four prerequisites of Rule 23(a). FED. R CIV. P. 23(a); Falcon, 457 U.S. at 156, 102 S.Ct. 2364. Those requirements are that:
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
FED.R.CIV.P. 23(a). Once a party has demonstrated numerosity, commonality, typicality, and adequacy, it still must satisfy one prong of Rule 23(b) to warrant class certification. FED.R.CIV.P. 23(b).
[9] [10] [11] In determining whether to certify a class, the court should not consider the underlying merits of the plaintiff’s claims. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177–78, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); In re Lorazepam & Clorazepate Antitrust Litig., 202 F.R.D. 12, 14, 21 (D.D.C.2001). Noting that Rule 23(c)(1) instructs district courts to rule on class status “[a]s soon as
3

Aliotta v. Gruenberg, 237 F.R.D. 4 (2006)
practicable under the commencement of an action brought as a class action,” the Supreme Court has explained that in “determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.” Eisen, 417 U.S. at 178, 94 S.Ct. 2140 (quotation omitted); see also In re Cardizem CD Antitrust Litig., 200 F.R.D. 297, 303 (E.D.Mich.2001) (stating that “[a] Rule 23 determination is wholly procedural and has nothing to do with whether a plaintiff will ultimately prevail on the substantive merits of its claim”) (quotation omitted). Moreover, the court accepts as true the allegations set forth in the complaint. Shelter Realty Corp. v. Allied Maint. Corp., 574 F.2d 656, 661 n. 15 (2d Cir.1978); In re Lorazepam, 202 F.R.D. at 21. Lastly, “when a court is in doubt as to whether to certify a class action, it should err in favor of allowing a class.” In re Cardizem, 200 F.R.D. at 303 (quotations omitted).
2. The Plaintiffs Demonstrate Numerosity
[12] [13] The first prerequisite for class certification is that the class be “so numerous that joinder of all members is impracticable.” FED.R.CIV.P. 23(a)(1). The plaintiffs need not provide a specific number as long as they give a reasonable basis for their estimate. In re Lorazepam, 202 F.R.D. at 26. In this case, there are 49 named plaintiffs. Am. Compl. The plaintiffs estimate the size of the class to be approximately 100 to 130 members. Pls.’s Mot. at 6. The plaintiffs base their estimate on a staffing list of the Division of Resolutions and Receiverships, dated March 4, 2002, indicating that 66% of *11 all DRR employees were born on or before September 30, 1955. Id. Approximately 150 former DRR employees (not including the plaintiffs) either accepted the buyout offer or were terminated as part of the 2005 RIF. Id. Therefore, the plaintiffs reason the number of potential class members is at least 66% of 150 employees, or 99 employees. Id. Because of the large number of possible class members, joinder of all members is impracticable. FED.R.CIV.P. 23(a)(1); Arnold v. Postmaster General, 667 F.Supp. 6, 15 (D.D.C.1987) (ruling that a class of 39 to several hundred class members to be sufficient to sustain class action), rev’d on other grounds, 863 F.2d 994. Thus, the plaintiffs have satisfied the numerosity requirement.
3. The Plaintiffs Demonstrate Commonality and Typicality
[14] The second prerequisite for class certification is that

there are questions of law or fact common to the individual class members. FED.R.CIV.P. 23(a)(2). The Supreme Court has explained that “[t]he commonality and typicality requirements of Rule 23(a) tend to merge.” Falcon, 457 U.S. at 157 n. 13, 102 S.Ct. 2364. Accordingly, the court treats these two requirements together.
[15] “The commonality requirement will be satisfied if the named plaintiffs share at least one question of fact or law with the grievances of the prospective class.” Baby Neal for and by Kanter v. Casey, 43 F.3d 48, 56 (3d Cir.1994); see also Lightbourn v. County of El Paso, 118 F.3d 421, 426 (5th Cir.1997); In re “Agent Orange” Prod. Liab. Litig., 818 F.2d 145, 166–167 (2d Cir.1987); In re Lorazepam, 202 F.R.D. at 26.
In this case, the plaintiffs and the prospective class members were, or are, employed in the same divisions of the FDIC, the DRR. Id. The plaintiffs explain that on September 16, 2002 the FDIC Chairman made an announcement advising FDIC employees of an impending RIF if 400 or more employees did not accept a buyout. Am. Compl. ¶ 63. Additionally, on October 26, 2004, Director Glassman of the DRR announced that staffing levels in the DRR would be reduced by 53%. Am. Compl. ¶ 68. Thus, those employees who accepted the buyout knew, at the time of their acceptance, of the breadth of the impending RIF. Pls.’ Reply at 8.
The FDIC implemented its buyout and RIF programs to maintain appropriate staffing levels as the agency’s workload decreased. Def.’s Opp’n at 3; Am. Compl. ¶ 56. Without addressing the merits of the plaintiffs’ claims, the court concludes that the plaintiffs and class members who accepted an offer (either for a buyout or reduction in grade) and who were terminated pursuant to the RIF present sufficiently common questions regarding the FDIC’s practices in downsizing; specifically whether the downsizing programs were implemented in a discriminatory fashion. Baby Neal, 43 F.3d at 56.
The defendant’s contention that individual differences among the plaintiffs should prevent certification of a class because of a lack of commonality is not persuasive. Though the plaintiffs’ claims and damages may be individualized in nature (as the defendant argues), class treatment is not precluded by the commonality requirement; the court may certify a class for certain particularized issues. Baby Neal, 43 F.3d at 57.
For similar reasons, the plaintiffs have satisfied the requirement that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” FED.R.CIV.P. 23(a)(3). Because “[t]he commonality and typicality requirements of Rule 23(a) tend to merge,” Falcon, 457 U.S. at 157 n. 13, 102 S.Ct. 2364, because each class member’s claim would arise
4

Aliotta v. Gruenberg, 237 F.R.D. 4 (2006)
from the same course of events that led to the claims of the representative parties, and because each class member would make similar legal arguments to prove the defendant’s liability, the plaintiffs’ claims are typical, In re Lorazepam, 202 F.R.D. at 27; Am. Comp. at 7–11.
4. The Plaintiffs Demonstrate Adequacy
[16] The final prerequisite for class certification under Rule 23(a) requires that “the representative parties will fairly and adequately protect the interest of the class.” FED.R.CIV.P. 23(a)(4). According to the D.C. Circuit, “[t]wo criteria for determining the adequacy of representation are generally recognized: *12 1) the named representative must not have antagonistic or conflicting interest with the unnamed members of the class, and 2) the representative must appear able to vigorously prosecute the interest of the class through qualified counsel.” Twelve John Does v. Dist. of Columbia, 117 F.3d 571, 575 (D.C.Cir.1997) (quotations omitted).
[17] The defendant argues that the named plaintiffs are inadequate representatives of the putative class. Def.’s Opp’n at 15. More specifically, the defendant argues that because no plaintiff is currently a DRR employee, the plaintiffs’ interest in “gain[ing] reinstatement with the agency and/or receive an award of back pay” is at odds with potential class members who accepted lower-graded positions in the DRR during the RIF. Id. at 22, 23. The defendant’s argument is not persuasive. The plaintiffs do not argue that there are any DRR employees who accepted a lower graded position within DRR to avoid termination. Pls.’ Reply at 16. And even if there are employees that accepted a lower grade within the DRR to avoid termination, “speculative suggestion of potential conflict is insufficient to defeat class certification.” Rodolico v. Unisys Corp., 199 F.R.D. 468, 477 (E.D.N.Y.2001).
The defendant also argues that the plaintiffs’ interests are internally in conflict because they are vying for the same positions within the agency. Def.’s Opp’n at 23. Conflict within the class for a limited number of agency positions, however, is insufficient to find inadequacy. Moysey v. Andrus, 481 F.Supp. 850, 854 (D.D.C.1979) (concluding that even the plaintiffs will be eventually competing with other class members for a limited number of federal positions, the plaintiff may fairly and adequately protect the interest of the class).
The court concludes that the defendant’s concerns about conflicts with and within the class are unfounded. The plaintiffs have satisfied Rule 23(a)(4)’s adequacy requirement.

C. The Plaintiffs Satisfy the Requirements of Rule 23(b)
Because the plaintiffs have satisfied Rule 23(a)’s four prerequisites to a class action, the court must now evaluate whether the plaintiffs can maintain a class action pursuant to one of Rule 23(b)’s subdivisions. FED.R.CIV.P. 23(b). The plaintiffs submit that this action is maintainable as a class action under Rule 23(b)(3). Pls.’ Mot. at 14–20.
Under Rule 23(b)(3), certification is appropriate when common questions “predominate over any questions affecting only individual members” and class resolution must be “superior to other available methods for the fair and efficient adjudication of the controversy.” FED.R.CIV.P. 23(b)(3). Among the factors the court should examine in making its determination are (A) “the interest of members of the class in individually controlling the prosecution or defense of separate actions;” (B) “the extent and nature of any litigation concerning the controversy already commenced by or against members of the class;” (C) “the desirability or undesirability of concentrating the litigation of the claims in the particular forum;” (D) and “the difficulties likely to be encountered in the management of a class action.” Id.
a. Common Issues Predominate
[18] [19] [20] Rule 23(b)(3) first requires that common factual and legal issues predominate over any such issues that affect only individual class members. FED.R.CIV.P. 23(b)(3). “The common question requirement of Rule 23(a) and the predominance requirement of Rule 23(b) overlap.” Rodolico, 199 F.R.D. at 479. The common issues previously identified must be shown by the plaintiffs to predominate over the non-common issues. Bynum v. Dist. of Columbia, 214 F.R.D. 27, 39 (D.D.C.2003) (quotations omitted). However, the common issues need not be dispositive. Id. “When one or more of the central issues in the action are common to the class and can be said to predominate, the action will be considered proper under Rule 23(b)(3) even though important matters will have to be tried separately.” Id. at 37 (quoting 7A FED. PRAC. & PRO. § 1778 (2d ed.1986)).
[21] The court previously determined that there is a common factual question regarding whether the plaintiffs were separated from the defendant agency in a discriminatory manner. See infra at 11–12. This *13 issue, as the plaintiffs argue, predominates because the evidence used will be common among the plaintiffs and potential class members. Pls.’ Reply at 17; see Rodolico, 199 F.R.D. at 479 (holding that the issue of whether a company
5

Aliotta v. Gruenberg, 237 F.R.D. 4 (2006)
engaged in a pattern or practice of intentional discrimination in the planning an execution of a RIF was sufficient to meet the burden of establishing predominance). The individualized nature of the potential damages does not “preclude a finding that common questions of law and fact predominate over individualized questions.” See infra at 11; Bynum, 214 F.R.D. at 39 (citing McCarthy v. Kleindienst, 741 F.2d 1406, 1415 (D.C.Cir.1984)); see also Baby Neal, 43 F.3d at 57. The court is satisfied that there are common questions that predominate over any issues that affect only individual members.

b. Class Resolution is Superior to Other Available Methods
[22] [23] [24] [25] The second requirement of Rule 23(b)(3) is that the court concludes that class resolution is superior to other available methods. FED.R.CIV.P. 23(b)(3). Class actions are the superior method when they serve the purpose of efficient resolution of the claims or liabilities of many individuals in a single action, as well as the elimination of repetitious litigation and possibly inconsistent adjudications. Rodolico, 199 F.R.D. at 479–80 (citing Califano v. Yamasaki, 442 U.S. 682, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979)). The more predominant common issues there are, the more desirable a class action law suit is under the superiority analysis. Klay v. Humana, Inc., 382 F.3d 1241, 1269 (11th Cir.2004). Because the issue of the FDIC’s practices in downsizing the agency predominate and because repetitious litigation would result through individual actions, class certification is a superior method of resolution.5 Rodolico, 199 F.R.D. at 479–80.

5

The defendant argues that potentially significant money

damages preempt the finding of superiority. Though the

amount of potential damages is a factor the court may

consider, it is not a factor the court must consider.

Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117

S.Ct. 2231, 138 L.Ed.2d 689, (1997) (noting that the

text of Rule 23(b)(3) does not exclude cases in which

individual damages run high). Other factors, such as

efficiency, may be considered. Rodolico, 199 F.R.D. at

479–80.
D. Class Definition
Having determined that this lawsuit may proceed as a class action, the court must now define the specific class. FED.R.CIV.P. 23(c)(B). The court defines the class as:
Former or present employees of FDIC’s Division of Resolution and Receiverships who were born on a date on or before September 30, 1955 and who, as a result of the 2005 RIF, either accepted a buyout or reduction in grade, or were terminated from their positions in the DRR.
[26] The court notes that it may modify or divide the class action as the litigation progresses and more information is known about the appropriate method for bringing the suit. D’Alauro v. GC Services Ltd. P’ship, 168 F.R.D. 451, 459 (E.D.N.Y.1996). The court orders parties to submit a plan for notification of the certified class as required by Rule 23(b)(3) within thirty days.
IV. CONCLUSION
For the foregoing reasons, the court grants the plaintiffs’ motion for class certification. An order consistent with this Memorandum Opinion is separately and contemporaneously issued this 25th day of July, 2006.
Parallel Citations
88 Empl. Prac. Dec. P 42,597
	  

6

 
 Case: 1:05-cv-2325 As of: 07/28/2010 08:34 PM EDT 1 of 13
APPEAL, CLOSED, JURY, TYPE−H
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:05−cv−02325−RMU

ALIOTTA et al v. GRUENBERG Assigned to: Judge Ricardo M. Urbina Cause: 29:633 Job Discrimination (Age) Plaintiff BARBARA ALIOTTA
Plaintiff ROBERT ANDERSON
Plaintiff JEANNIE AVERY

Date Filed: 12/05/2005 Date Terminated: 09/18/2008 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Defendant
represented by Terri N. Marcus ROSE &ROSE, P.C. 1320 19th Street, NW Suite 601 Washington, DC 20036 (202) 331−8555 TERMINATED: 08/17/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Louis Rose ROSE &ROSE, PC 1320 19th Street, NW Suite 601 Washington, DC 20036 (202) 331−8555 Fax: (202) 331−0996 Email: daver@roselawyers.com ATTORNEY TO BE NOTICED
Yuval Rubinstein ROSE &ROSE, PC 1320 19th Street, NW Suite 601 Washington, DC 20036 (703) 635−0819 Email: yrubinstein@roselawyers.com
represented by Terri N. Marcus (See above for address) TERMINATED: 08/17/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Louis Rose (See above for address) ATTORNEY TO BE NOTICED
Yuval Rubinstein (See above for address)
represented by Terri N. Marcus (See above for address) TERMINATED: 08/17/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Louis Rose

Case: 1:05-cv-2325 As of: 07/28/2010 08:34 PM EDT 2 of 13

(See above for address) ATTORNEY TO BE NOTICED

Yuval Rubinstein (See above for address) ATTORNEY TO BE NOTICED

Plaintiff YVONNE CAIN

represented by Terri N. Marcus (See above for address) TERMINATED: 08/17/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Louis Rose (See above for address) ATTORNEY TO BE NOTICED

Yuval Rubinstein (See above for address)

Plaintiff PRISCILLA CATAPAT

represented by Terri N. Marcus (See above for address) TERMINATED: 08/17/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Louis Rose (See above for address) ATTORNEY TO BE NOTICED

Yuval Rubinstein (See above for address)

Plaintiff EVELYN CLAUDE

represented by Terri N. Marcus (See above for address) TERMINATED: 08/17/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Louis Rose (See above for address) ATTORNEY TO BE NOTICED

Yuval Rubinstein (See above for address)

Plaintiff SYLVIA CLINE

represented by Terri N. Marcus (See above for address) TERMINATED: 08/17/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Louis Rose (See above for address) ATTORNEY TO BE NOTICED

Yuval Rubinstein (See above for address)

Case: 1:05-cv-2325 As of: 07/28/2010 08:34 PM EDT 3 of 13

Plaintiff MARY L. DUPREE−ELLIS
Plaintiff WYMAN ELROD
Plaintiff PATRICIA EVERETT
Plaintiff LARRY GLAZENER
Plaintiff DENNIS HAROOTUNIAN

represented by Terri N. Marcus (See above for address) TERMINATED: 08/17/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Louis Rose (See above for address) ATTORNEY TO BE NOTICED
Yuval Rubinstein (See above for address)
represented by Terri N. Marcus (See above for address) TERMINATED: 08/17/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Louis Rose (See above for address) ATTORNEY TO BE NOTICED
Yuval Rubinstein (See above for address)
represented by Terri N. Marcus (See above for address) TERMINATED: 08/17/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Louis Rose (See above for address) ATTORNEY TO BE NOTICED
Yuval Rubinstein (See above for address)
represented by Terri N. Marcus (See above for address) TERMINATED: 08/17/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Louis Rose (See above for address) ATTORNEY TO BE NOTICED
Yuval Rubinstein (See above for address)
represented by Terri N. Marcus (See above for address) TERMINATED: 08/17/2007 LEAD ATTORNEY

Case: 1:05-cv-2325 As of: 07/28/2010 08:34 PM EDT 4 of 13

ATTORNEY TO BE NOTICED

David Louis Rose (See above for address) ATTORNEY TO BE NOTICED

Yuval Rubinstein (See above for address)

Plaintiff MARY KEBBEH

represented by Terri N. Marcus (See above for address) TERMINATED: 08/17/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Louis Rose (See above for address) ATTORNEY TO BE NOTICED

Yuval Rubinstein (See above for address)

Plaintiff DENNIS KELLER

represented by Terri N. Marcus (See above for address) TERMINATED: 08/17/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Louis Rose (See above for address) ATTORNEY TO BE NOTICED

Yuval Rubinstein (See above for address)

Plaintiff PEARL LINDSEY

represented by Terri N. Marcus (See above for address) TERMINATED: 08/17/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Louis Rose (See above for address) ATTORNEY TO BE NOTICED

Yuval Rubinstein (See above for address)

Plaintiff FAYE MORITZ

represented by Terri N. Marcus (See above for address) TERMINATED: 08/17/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Louis Rose (See above for address) ATTORNEY TO BE NOTICED

Case: 1:05-cv-2325 As of: 07/28/2010 08:34 PM EDT 5 of 13

Yuval Rubinstein (See above for address)

Plaintiff BERNICE PARKER

represented by Terri N. Marcus (See above for address) TERMINATED: 08/17/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Louis Rose (See above for address) ATTORNEY TO BE NOTICED

Yuval Rubinstein (See above for address)

Plaintiff PAULA PATTERSON

represented by Terri N. Marcus (See above for address) TERMINATED: 08/17/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Louis Rose (See above for address) ATTORNEY TO BE NOTICED

Yuval Rubinstein (See above for address)

Plaintiff PATRICK J. SHUTE

represented by Terri N. Marcus (See above for address) TERMINATED: 08/17/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Louis Rose (See above for address) ATTORNEY TO BE NOTICED

Yuval Rubinstein (See above for address)

Plaintiff DAVID L. NOFFSINGER

represented by David Louis Rose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Yuval Rubinstein (See above for address)

Plaintiff BRUCE BROWN

represented by David Louis Rose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Yuval Rubinstein (See above for address)

Case: 1:05-cv-2325 As of: 07/28/2010 08:34 PM EDT 6 of 13

V. Defendant MARTIN J. GRUENBERG Acting Chairman, Federal Deposit Insurance Corporation TERMINATED: 02/25/2009
Defendant SHEILA C. BAIR Chairman, Federal Deposit Insurance Corporation

represented by William S. Jones FEDERAL DEPOSIT INSURANCE CORPORATION Legal Division 3501 Fairfax Drive, Room E−6006 Arlington, VA 22226 (703) 562−2362 Fax: (703) 562−2482 Email: wjones@fdic.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William S. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/05/2005
12/05/2005 12/05/2005 12/13/2005 02/08/2006 02/08/2006 02/09/2006 02/09/2006
03/01/2006 03/01/2006

# Docket Text
1 COMPLAINT against MARTIN J. GRUENBERG (Filing fee $ 250) filed by YVONNE CAIN, PRISCILLA CATAPAT, EVELYN CLAUDE, SYLVIA CLINE, MARY L. DUPREE−ELLIS, WYMAN ELROD, PATRICIA EVERETT, LARRY GLAZENER, DENNIS HAROOTUNIAN, MARY KEBBEH, DENNIS KELLER, PEARL LINDSEY, FAYE MORITZ, BERNICE PARKER, PAULA PATTERSON, PATRICK J. SHUTE, BARBARA ALIOTTA, ROBERT ANDERSON, JEANNIE AVERY.(jf, ) (Entered: 12/06/2005)
Summons (1) Issued as to MARTIN J. GRUENBERG. (jf, ) (Entered: 12/06/2005)
2 NOTICE OF RELATED CASE by all plaintiffs. Case related to Case No. 05−549. (jf, ) (Entered: 12/06/2005)
SUMMONS (2) Issued as to, U.S. Attorney and U.S. Attorney General (jf, ) (Entered: 12/13/2005)
3 MOTION for Extension of Time to File Answer re 1 Complaint, by MARTIN J. GRUENBERG. (Attachments: # 1 Text of Proposed Order)(nmw, ) (Entered: 02/08/2006)
4 ENTERED IN ERROR..... MOTION to Amend/Correct Complaint by BARBARA ALIOTTA. (Rose, David) Modified on 2/9/2006 (nmw, ). (Entered: 02/08/2006)
NOTICE OF CORRECTED DOCKET ENTRY: Document No. 4 was entered in error as a motion and will be refiled by the Clerk's Office. (nmw, ) (Entered: 02/09/2006)
5 AMENDED COMPLAINT against MARTIN J. GRUENBERGfiled by YVONNE CAIN, PRISCILLA CATAPAT, EVELYN CLAUDE, SYLVIA CLINE, MARY L. DUPREE−ELLIS, WYMAN ELROD, PATRICIA EVERETT, LARRY GLAZENER, DENNIS HAROOTUNIAN, MARY KEBBEH, DENNIS KELLER, PEARL LINDSEY, FAYE MORITZ, BERNICE PARKER, PAULA PATTERSON, PATRICK J. SHUTE, BARBARA ALIOTTA, ROBERT ANDERSON, JEANNIE AVERY.(nmw, ) (Entered: 02/09/2006)
6 Unopposed MOTION for Extension of Time to File Motion for Class Certification by BARBARA ALIOTTA. (Attachments: # 1 Order)(Marcus, Terri) (Entered: 03/01/2006)
MINUTE ORDER granting 3 Motion for Extension of Time to Answer until March 15, 2006 and granting 6 Motion for Extension of Time to file motion for class

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03/01/2006 03/15/2006 03/15/2006 04/21/2006 04/24/2006 04/26/2006 04/27/2006 04/27/2006 05/22/2006 05/22/2006 05/23/2006 05/25/2006
06/08/2006 06/09/2006 06/09/2006

certification until April 21, 2006. Signed by Judge Ricardo M. Urbina on 3/1/06. (djr) (Entered: 03/01/2006)
Set Deadlines/Hearings: Answer due by 3/15/2006. Motion for Class Certification due by 4/21/2006. (jwd) (Entered: 03/01/2006)
7 Defendant's ANSWER to Amended Complaint, ANSWER to Complaint by MARTIN J. GRUENBERG.(Jones, William) (Entered: 03/15/2006)
8 STANDING ORDER Signed by Judge Ricardo M. Urbina on March 15, 2006. (jwd) (Entered: 03/15/2006)
9 MOTION to Certify Class Memorandum of Points and Declarations in Support Thereof by BARBARA ALIOTTA. (Attachments: # 1(This attachment is unavailable due to privacy requirement) # 2 Text of Proposed Order)(Marcus, Terri) Modified on 4/21/2006 (jeb, ). (Entered: 04/21/2006)
10 ADDITIONAL ATTACHMENT EXHIBIT A REVISED by BARBARA ALIOTTA 9 MOTION to Certify Class Memorandum of Points and Declarations in Support Thereof filed by BARBARA ALIOTTA,. (Marcus, Terri) (Entered: 04/24/2006)
11 Consent MOTION for Extension of Time to File Response/Reply as to 9 MOTION to Certify Class Memorandum of Points and Declarations in Support Thereof by MARTIN J. GRUENBERG. (Attachments: # 1 Text of Proposed Order)(Jones, William) (Entered: 04/26/2006)
MINUTE ORDER granting 11 Motion for Extension of Time to File Response/Reply. ORDERED that Defendant shall have until May 26, 2006, to answer or otherwise respond to Plaintiffs' Motion for Class Certification. Signed by Judge Ricardo M. Urbina on 4/27/06. (djr) (Entered: 04/27/2006)
Set Deadlines/Hearings: Answer due by 5/26/2006. (jwd) (Entered: 04/27/2006)
12 Consent MOTION for Extension of Time to Reply to Defendant's Opposition to Motion for Class Certification and Memorandum of Points and Authorities in Support Thereof by BARBARA ALIOTTA. (Attachments: # 1 Text of Proposed Order)(Marcus, Terri) (Entered: 05/22/2006)
MINUTE ORDER granting 12 Motion for Extension of Time. The plaintiffs shall have until June 15, 2006 to reply or otherwise respond to the defendant's Response to the plaintiffs' Motion for Class Certification. Signed by Judge Ricardo M. Urbina on 5/22/06. (djr) (Entered: 05/22/2006)
Set Deadlines/Hearings: Plaintiffs shall reply or otherwise respond to the defendant's Response to the plaintiffs' Motion for Class Certification by 6/15/2006. (jwd) Modified on 5/24/2006 (nmw, ). (Entered: 05/23/2006)
13 Memorandum in opposition to re 9 MOTION to Certify Class Memorandum of Points and Declarations in Support Thereof filed by MARTIN J. GRUENBERG. (Attachments: # 1 Exhibit EXHIBIT 1# 2 Exhibit EXHIBIT 2# 3 Affidavit EXHIBIT 3 − CROSSER DECLARATION (INC. EX. 3−1 THROUGH 3−3)# 4 Exhibit EXHIBIT 4# 5 Exhibit EXHIBIT 5# 6 Exhibit EXHIBIT 6# 7 Exhibit EXHIBIT 7# 8 Exhibit EXHIBIT 8# 9 Exhibit EXHIBIT 9# 10 Exhibit EXHIBIT 10 (10−1 THROUGH 10−10)# 11 Exhibit EXHIBIT 11# 12 Exhibit EXHIBIT 12 (INC. EX. 12−1 THROUGH 12−3)# 13 Exhibit EXHIBIT 13)(Jones, William) (Entered: 05/25/2006)
14 Consent MOTION for Leave to File Attached Supplemental Memorandum of Points and Exhibits by MARTIN J. GRUENBERG. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Jones, William) (Entered: 06/08/2006)
MINUTE ORDER granting 14 Motion for Leave to File supplemental memorandum. Signed by Judge Ricardo M. Urbina on 6/9/06. (djr) (Entered: 06/09/2006)
15 SUPPLEMENTAL MEMORANDUM in support of re 13 Memorandum in opposition to re 9 MOTION to Certify Class filed by MARTIN J. GRUENBERG. (Attachments: # 1 Exhibit A# 2 Exhibit B)(jf, ) (Entered: 06/13/2006)

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06/15/2006
06/15/2006
06/16/2006 07/25/2006 07/25/2006 08/08/2006 08/14/2006 08/23/2006 08/23/2006 09/14/2006 09/15/2006 09/18/2006 10/03/2006 10/13/2006 10/26/2006 11/06/2006 11/09/2006 01/11/2007 01/11/2007

16 ENTERED IN ERROR.....REPLY to opposition to motion re 9 MOTION to Certify Class Memorandum of Points and Declarations in Support Thereof filed by BARBARA ALIOTTA. (Attachments: # 1 Exhibit A# 2 Exhibit B1−12# 3 Exhibit B13−23)(Marcus, Terri) Modified on 6/16/2006 (nmw, ). (Entered: 06/15/2006)
17 REPLY to opposition to motion re 9 MOTION to Certify Class Memorandum of Points and Declarations in Support Thereof filed by BARBARA ALIOTTA. (Attachments: # 1 Exhibit A# 2 Exhibit B1−12# 3 Exhibit B13−23)(Marcus, Terri) (Entered: 06/15/2006)
NOTICE OF CORRECTED DOCKET ENTRY: Document No. 16 was entered in error and was refiled by counel as Document No. 17. (nmw, ) (Entered: 06/16/2006)
18 ORDER granting 9 Motion to Certify Class. Signed by Judge Ricardo M. Urbina on 7/25/06. (djr) (Entered: 07/25/2006)
19 MEMORANDUM AND OPINION. Signed by Judge Ricardo M. Urbina on 7/25/06. (djr) (Entered: 07/25/2006)
20 Consent MOTION for Joinder David L. Noffsinger to Lawsuit by BARBARA ALIOTTA. (Rose, David) (Entered: 08/08/2006)
MINUTE ORDER granting 20 Motion for Joinder of David L. Noffsinger as a plaintiff in this lawsuit. Signed by Judge Ricardo M. Urbina on 8/14/06. (djr) (Entered: 08/14/2006)
21 NOTICE TO CLASS MEMBERS by MARTIN J. GRUENBERG re 19 Memorandum &Opinion (Attachments: # 1)(Jones, William) (Entered: 08/23/2006)
22 ORDER approving the form and plan for notice to class members. Signed by Judge Ricardo M. Urbina on 8/23/06. (djr) (Entered: 08/23/2006)
23 NOTICE to the Court by DONALD W. ALLEN. (fiat) JUDGE RICARDO M. URBINA (jf, ) (Entered: 09/15/2006)
24 STIPULATION Protective Order by BARBARA ALIOTTA. (Rose, David) (Entered: 09/15/2006)
MINUTE ORDER adopting the parties' proposed stipulated protected order 24 and incorporating its terms by reference. Signed by Judge Ricardo M. Urbina on 9/18/06. (djr) (Entered: 09/18/2006)
25 NOTICE of CORNELIUS J. AHERN requesting to be excluded from the class action suit brought agains the FDIC ADEA. FIAT "Let this be filed" Judge Urbina. (tg, ) (Entered: 10/06/2006)
26 NOTICE of James A. Meyer requesting to be excluded from the class action suit brought agains the FDIC ADEA; re 18 Order on Motion to Certify Class (jf, ) (Entered: 10/17/2006)
27 NOTICE of Glenda M. Wing requesting to be excluded from the class action suit brought agains the FDIC ADEA; re 18 Order on Motion to Certify Class (jf, ) (Entered: 10/30/2006)
28 NOTICE of Tom W. Moran requesting to be excluded from the class action suit brought agains the FDIC ADEA; re 18 Order on Motion to Certify Class (jf, ) (Entered: 11/08/2006)
29 NOTICE of Michael J. Lauer requesting to be excluded from the class action suit brought agains the FDIC ADEA; re 18 Order on Motion to Certify Class. (fiat) JUDGE RICARDO M. URBINA (jf, ) (Entered: 11/09/2006)
30 NOTICE To Schedule Initial Status Conference by BARBARA ALIOTTA (Rose, David) (Entered: 01/11/2007)
MINUTE ORDER re 30 Notice (Other) filed by BARBARA ALIOTTA. The parties are hereby ORDERED to meet and confer within 21 days of this Order as contemplated by Local Civil Rule 16.3(a). The parties are FURTHER ORDERED to file with the court, no later than 7 days following the 16.3 conference, a joint

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02/01/2007 02/01/2007
02/01/2007 06/26/2007 06/26/2007
06/26/2007
07/11/2007 07/12/2007 08/10/2007 08/13/2007 09/24/2007 09/26/2007
09/26/2007 10/19/2007 10/19/2007

status report as contemplated by Local Civil Rule 16.3(d). Prior to addressing the matters listed in Local Civil Rule 16.3(c), the report should provide a one−paragraph statement of the case that describes the nature of the case, the identities of the parties, and the statutory basis of the court's jurisdiction for all causes of action and defenses. Additionally, the parties shall include a proposed discovery scheduling order for this case. Signed by Judge Ricardo M. Urbina on 1/11/07. (djr) Modified on 1/11/2007 (lcrmu1, ). (Entered: 01/11/2007)
31 MEET AND CONFER STATEMENT. (Jones, William) (Entered: 02/01/2007)
32 MINUTE ORDER setting the following schedule. Initial disclosures are due by February 16 2007. The plaintiffs' experts' reports are due by May 31, 2007, and the defendants' experts' reports are due by June 29, 2007. Discovery will close on July 31, 2007, and dispositive motions are due by August 31, 2007. The court will set a pretrial conference date and trial date at a later time. signed by Judge Ricardo M. Urbina on 2/1/07. (djr) (Entered: 02/01/2007)
Set/Reset Deadlines: Discovery due by 7/31/2007. Dispositive Motions due by 8/31/2007. Defendant Rule 26a2 due by 6/29/2007. (clv, ) (Entered: 02/01/2007)
33 Consent MOTION for Extension of Time to Complete Discovery by BARBARA ALIOTTA (Attachments: # 1 Exhibit)(Rose, David) (Entered: 06/26/2007)
MINUTE ORDER granting 33 Motion for Extension of Time to Complete Discovery. The scheduling order in this case is amended as follows: the plaintiffs expert report(s) due July 16, 2007, the defendants expert report(s) due August 20, 2007, Discovery will close September 28, 2007, Dispositive motions due by October 26, 2007. Signed by Judge Ricardo M. Urbina on 6/26/07. (djr) (Entered: 06/26/2007)
Set Deadlines/Hearings:the plaintiffs expert report(s) due July 16, 2007, the defendants expert report(s) due August 20, 2007, Discovery will close September 28, 2007, Dispositive motions due by October 26, 2007 (jwd) (Entered: 06/26/2007)
34 Consent MOTION for Joinder Lawsuit by BARBARA ALIOTTA (Rose, David) (Entered: 07/11/2007)
MINUTE ORDER granting 34 Consent Motion for Joinder of Bruce Brown as a plaintiff in this lawsuit. Signed by Judge Ricardo M. Urbina on 07/12/07. (dbk) Modified on 7/13/2007 (nmw, ). (Entered: 07/12/2007)
35 Joint MOTION to Bifurcate and Defer Damages Expert Reports by MARTIN J. GRUENBERG (Attachments: # 1 Exhibit Pending Document Requests)(Jones, William) (Entered: 08/10/2007)
36 ORDER granting 35 Motion to Bifurication of Trial and The Service of Expert Report Damage Signed by Judge Ricardo M. Urbina on August 13, 2007. (jwd) (Entered: 08/13/2007)
37 Joint MOTION for Extension of Time to Complete Discovery and File Dispositive Motions by MARTIN J. GRUENBERG, BARBARA ALIOTTA (Attachments: # 1 Exhibit Pending discovery requests)(Jones, William) (Entered: 09/24/2007)
38 ORDER signed by Judge Ricardo M. Urbina on September 26, 2007 granting 37 Motion for Extension of Time to Complete and File Dispositive Motions. Discovery will close on 10/26/2007 and Dispositive Motions will be due by 11/23/2007. (jwd) (Entered: 09/26/2007)
Set Deadlines/Hearings: Discovery due by 10/26/2007.,Dispositive Motions due by 11/23/2007. (jwd) (Entered: 09/26/2007)
39 MOTION to Compel Discovery and to Strike Plaintiffs' Expert Report by MARTIN J. GRUENBERG (Attachments: # 1 Text of Proposed Order)(Jones, William) (Entered: 10/19/2007)
40 MOTION to Strike Plaintiffs' Expert Report by MARTIN J. GRUENBERG. (See Docket Entry 39 to view document). (nmw, ) (Entered: 10/22/2007)

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10/31/2007
10/31/2007 11/21/2007 11/21/2007
11/21/2007 11/26/2007 01/22/2008 02/25/2008
02/25/2008 02/26/2008 03/07/2008 03/10/2008

MINUTE ORDER granting in part and denying in part 39 Motion to Compel; granting in part and denying in part 40 Motion to Strike. The defendant's request for an extension of time for discovery of 30 days is granted: discovery shall remain open until November 26, 2007. The remainder of the defendant's motions is denied without prejudice. The defendant is referred to the standing order in this case requiring the parties to call chambers to schedule a telephone conference before filing any disputed discovery motions. Leave of court must be obtained before any diputed discovery motions are considered. The parties are instructed to confer again and if, by November 26, 2007, they have not reached a consensus on the defendant's requests, they may contact chambers to schedule a conference, at which time both parties must be ready to defend their positions. Parties are reminded that the court will sanction the losing attorney in any discovery dispute pursuant to FRCP 37a4. Signed by Judge Ricardo M. Urbina on 10/31/07. (lcrmu1, ) (Entered: 10/31/2007)
Set Deadlines/Hearings: discovery shall remain open until November 26, 2007 (jwd) (Entered: 10/31/2007)
41 Joint MOTION for Extension of Time to Complete Discovery and Dispositive Motions by MARTIN J. GRUENBERG (Attachments: # 1 Text of Proposed Order)(Jones, William) (Entered: 11/21/2007)
MINUTE ORDER granting 41 Motion for Extension of Time to Complete Discovery. ORDERED that the joint motion is granted, and it is further ORDERED that the scheduling order in this case is amended as follows: (a) Discovery will close on January 25, 2008; and (b) Dispositive motions will be due by February 25, 2008. Signed by Judge Ricardo M. Urbina on 11/21/07. (lcrmu1, ) (Entered: 11/21/2007)
Set/Reset Deadlines: Discovery Close on 1/25/2008.,Dispositive Motions due by 2/25/2008. (mpt, ) (Entered: 11/21/2007)
Set Deadlines/Hearings: Discovery will close on January 25, 2008; and (b) Dispositive motions will be due by February 25, 2008.(jwd) (Entered: 11/26/2007)
42 NOTICE of Appearance by David Louis Rose on behalf of BARBARA ALIOTTA (Rose, David) (Entered: 01/22/2008)
43 MOTION for Summary Judgment and Memorandum in Support Thereof by MARTIN J. GRUENBERG (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order, # 3 Exhibit Nos. 1−10, # 4 Exhibit Nos. 11−22, # 5 Exhibit No. 23, # 6 Exhibit Nos. 24, 24−1, 24−2, 24−3, # 7 Exhibit No. 25, # 8 Exhibit No. 26, # 9 Exhibit Nos. 27, 27−1, # 10 Exhibit Nos. 28, 28−1, 28−2, # 11 Exhibit No. 29, # 12 Exhibit No. 30, # 13 Exhibit No. 31, # 14 Exhibit No. 32, # 15 Exhibit No. 33, # 16 Exhibit No. 34, # 17 Exhibit No. 35)(Jones, William) (Entered: 02/25/2008)
44 MOTION for Partial Summary Judgment on Liability by BARBARA ALIOTTA (Attachments: # 1 Memorandum In Support, # 2 Undisputed Facts, # 3 Text of Proposed Order Order, # 4 Exhibit Seberhagen Report 012808)(Rose, David) (Entered: 02/25/2008)
45 ERRATA Supplemental Filing of Exhibit 27−1 by MARTIN J. GRUENBERG 43 MOTION for Summary Judgment and Memorandum in Support Thereof filed by MARTIN J. GRUENBERG. (Attachments: # 1 Exhibit No. 27−1)(Jones, William) (Entered: 02/26/2008)
46 Memorandum in opposition to re 44 MOTION for Partial Summary Judgment on Liability filed by MARTIN J. GRUENBERG. (Attachments: # 1 Statement of Facts Response to Statement of Facts, # 2 Text of Proposed Order, # 3 Exhibit No. 36, # 4 Exhibit No. 37, # 5 Exhibit No. 38, # 6 Exhibit No. 39, # 7 Exhibit No. 40)(Jones, William) (Entered: 03/07/2008)
47 Memorandum in opposition to re 43 MOTION for Summary Judgment and Memorandum in Support Thereof filed by YVONNE CAIN, PRISCILLA CATAPAT, DAVID L. NOFFSINGER, EVELYN CLAUDE, SYLVIA CLINE, MARY L. DUPREE−ELLIS, WYMAN ELROD, PATRICIA EVERETT, LARRY GLAZENER, DENNIS HAROOTUNIAN, MARY KEBBEH, DENNIS KELLER, PEARL LINDSEY, FAYE MORITZ, BERNICE PARKER, PAULA

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03/13/2008 03/14/2008 03/14/2008 03/24/2008
03/26/2008 03/27/2008 05/05/2008 05/20/2008 06/03/2008 07/08/2008

PATTERSON, PATRICK J. SHUTE, BARBARA ALIOTTA, ROBERT ANDERSON, JEANNIE AVERY. (Attachments: # 1 Exhibit Index of Exhibits, # 2 Exhibit 1 − Seberhagen Signed Final Report, # 3 Exhibit 2 − Board Minutes August 8, 1995, # 4 Exhibit 3 − American Banker Article, Nov. 10, 1995, # 5 Exhibit 4 − Board Minutes, Sept. 26, 1995, # 6 Exhibit 5 − FDIC Board Memo, Sept. 25, 1995, # 7 Exhibit 6 − Board Minutes, Sept. 5, 1995, # 8 Exhibit 7 − Declaration of Joy Crosser, # 9 Exhibit 8 − Declaration of Carole Mann, # 10 Exhibit 9 − Letter to Stakeholders, # 11 Exhibit 10 − Powell Deposition, # 12 Exhibit 11 − Mergen Deposition, # 13 Exhibit 12 − DOE Stats on College Age, # 14 Exhibit 13 − Corporate University 2005 New Hires)(Rose, David) (Entered: 03/10/2008)
48 Joint MOTION for Extension of Time to File Response/Reply Briefs for Plaintiffs and Defendant by MARTIN J. GRUENBERG (Attachments: # 1 Text of Proposed Order)(Jones, William) (Entered: 03/13/2008)
MINUTE ORDER granting 48 Motion for Extension of Time to File Response/Reply. Plaintiffs reply brief will be due on March 24, 2008, and Defendants reply brief will be due on March 27, 2008. Signed by Judge Ricardo M. Urbina on 3/14/08. (lcrmu1, ) (Entered: 03/14/2008)
Set/Reset Deadlines/Hearings: Plaintiffs reply brief will be due on March 24, 2008, and Defendants reply brief will be due on March 27, 2008 (jwd) (Entered: 03/14/2008)
49 REPLY to opposition to motion re 48 Joint MOTION for Extension of Time to File Response/Reply Briefs for Plaintiffs and Defendant, 44 MOTION for Partial Summary Judgment on Liability filed by YVONNE CAIN, PRISCILLA CATAPAT, DAVID L. NOFFSINGER, EVELYN CLAUDE, SYLVIA CLINE, BRUCE BROWN, MARY L. DUPREE−ELLIS, WYMAN ELROD, PATRICIA EVERETT, LARRY GLAZENER, DENNIS HAROOTUNIAN, MARY KEBBEH, DENNIS KELLER, PEARL LINDSEY, FAYE MORITZ, BERNICE PARKER, PAULA PATTERSON, PATRICK J. SHUTE, BARBARA ALIOTTA, ROBERT ANDERSON, JEANNIE AVERY. (Attachments: # 1 Exhibit Ex 14, # 2 Ex 15, # 3 Ex 16, # 4 Ex 17, # 5 Ex 18, # 6 Ex 19, # 7 Ex 20, # 8 Exhibit Ex 22a, # 9 Exhibit Ex 22b, # 10 Exhibit Ex 23, # 11 Exhibit Ex 24, # 12 Exhibit Ex 25, # 13 Exhibit Ex 26, # 14 Exhibit Ex 27, # 15 Exhibit, # 16 Declaration Ex 21)(Rose, David) (Entered: 03/24/2008)
50 SUPPLEMENTAL MEMORANDUM to re 44 MOTION for Partial Summary Judgment on Liability As Corrected filed by BARBARA ALIOTTA. (Attachments: # 1 Errata, # 2 Exhibit Corrected List, # 3 Exhibit Declaration G Haag)(Rose, David) (Entered: 03/26/2008)
51 REPLY to opposition to motion re 43 MOTION for Summary Judgment and Memorandum in Support Thereof filed by MARTIN J. GRUENBERG. (Attachments: # 1 Exhibit 41, # 2 Exhibit 42, # 3 Exhibit 43)(Jones, William) (Entered: 03/27/2008)
52 NOTICE of Amended Filings by MARTIN J. GRUENBERG re 46 Memorandum in Opposition, (Attachments: # 1 Amendment to FDIC's Response to Plaintiffs' Statement of Undisputed Facts, # 2 Amendment to Second Bodian Declaration)(Jones, William) (Entered: 05/05/2008)
53 Memorandum in opposition to re 43 MOTION for Summary Judgment and Memorandum in Support Thereof and Concerns the Declarations of Dr. Bodian filed by BARBARA ALIOTTA. (Attachments: # 1 Declaration Seberhagen)(Rose, David) (Entered: 05/20/2008)
54 MEMORANDUM re 53 Memorandum in Opposition filed by BARBARA ALIOTTA by MARTIN J. GRUENBERG. (Jones, William) (Entered: 06/03/2008)
55 NOTICE OF RECENT SUPREME COURT DECISIONS by YVONNE CAIN, PRISCILLA CATAPAT, DAVID L. NOFFSINGER, EVELYN CLAUDE, SYLVIA CLINE, BRUCE BROWN, MARY L. DUPREE−ELLIS, WYMAN ELROD, PATRICIA EVERETT, LARRY GLAZENER, DENNIS HAROOTUNIAN, MARY KEBBEH, DENNIS KELLER, PEARL LINDSEY,

Case: 1:05-cv-2325 As of: 07/28/2010 08:34 PM EDT 12 of 13

07/17/2008
07/24/2008 07/25/2008 07/28/2008 08/04/2008 08/08/2008 08/20/2008 09/18/2008 09/18/2008 10/02/2008 10/02/2008
10/03/2008

FAYE MORITZ, BERNICE PARKER, PAULA PATTERSON, PATRICK J. SHUTE, MARTIN J. GRUENBERG, BARBARA ALIOTTA, ROBERT ANDERSON, JEANNIE AVERY (Rose, David) (Entered: 07/08/2008)
56 MEMORANDUM re 55 Notice (Other), Notice (Other) filed by EVELYN CLAUDE, ROBERT ANDERSON, JEANNIE AVERY, BERNICE PARKER, MARY KEBBEH, PRISCILLA CATAPAT, DENNIS HAROOTUNIAN, PATRICK J. SHUTE, BARBARA ALIOTTA, PATRICIA EVERETT, BRUCE BROWN, FAYE MORITZ, YVONNE CAIN, SYLVIA CLINE, DAVID L. NOFFSINGER, MARY L. DUPREE−ELLIS, WYMAN ELROD, LARRY GLAZENER, MARTIN J. GRUENBERG, PAULA PATTERSON, DENNIS KELLER, PEARL LINDSEY by MARTIN J. GRUENBERG. (Attachments: # 1 Slip Opinion)(Jones, William) (Entered: 07/17/2008)
57 REPLY re 56 to Defendant's Memorandum in Response to Plaintiffs' Notice of Recent Supreme Court Decisions filed by BARBARA ALIOTTA. (Rose, David) Modified link on 7/25/2008 (nmw, ). (Entered: 07/24/2008)
58 Consent MOTION for Leave to File a Sur−Reply by MARTIN J. GRUENBERG (Jones, William) (Entered: 07/25/2008)
MINUTE ORDER granting 58 the defendant's consent motion for leave to file sur−reply. Upon consideration of the defendant's consent motion and for good cause shown therein, it is hereby ORDERED that the defendant's consent motion is GRANTED and the defendant may have leave to file a sur−reply. SO ORDERED. Signed by Judge Ricardo M. Urbina on 07/28/2008. (Entered: 07/28/2008)
59 SURREPLY to re 57 Reply to Document filed by MARTIN J. GRUENBERG. (Jones, William) (Entered: 08/04/2008)
60 REPLY to Defendant's 59 Sur−Reply filed by BARBARA ALIOTTA. (Rose, David) . (Entered: 08/08/2008)
61 NOTICE of Recent Authorities by BARBARA ALIOTTA (Rose, David) (Entered: 08/20/2008)
62 ORDER granting 43 the defendant's Motion for Summary Judgment; denying 44 the plaintiffs' Motion for Partial Summary Judgment. Signed by Judge Ricardo M. Urbina on 09/18/2008. (lcrmu1) (Entered: 09/18/2008)
63 MEMORANDUM OPINION. Signed by Judge Ricardo M. Urbina on 09/18/2008. (lcrmu1) (Entered: 09/18/2008)
64 NOTICE of Appearance by Yuval Rubinstein on behalf of all plaintiffs (Rubinstein, Yuval) (Entered: 10/02/2008)
65 ENTERED IN ERROR..... MOTION to Alter Judgment as to 63 Memorandum &Opinion by YVONNE CAIN, PRISCILLA CATAPAT, DAVID L. NOFFSINGER, EVELYN CLAUDE, SYLVIA CLINE, BRUCE BROWN, MARY L. DUPREE−ELLIS, WYMAN ELROD, PATRICIA EVERETT, LARRY GLAZENER, DENNIS HAROOTUNIAN, MARY KEBBEH, DENNIS KELLER, PEARL LINDSEY, FAYE MORITZ, BERNICE PARKER, PAULA PATTERSON, PATRICK J. SHUTE, BARBARA ALIOTTA, ROBERT ANDERSON, JEANNIE AVERY (Attachments: # 1 Text of Proposed Order, # 2 Exhibit List, # 3 Exhibit 1 − Declaration of James Cantrell, # 4 Exhibit 2 − Declaration of Joan Fairfield, # 5 Exhibit 3 − Declaration of Nancy Powers Gray, # 6 Exhibit 4 − Declaration of Kathy Haag, # 7 Exhibit 5 − Declaration of Carole Mann, # 8 Exhibit 6 − Declaration of Mark Valentine, # 9 Exhibit 7 − Declaration of Jackson Ware, # 10 Exhibit 8 − Declaration of Nancy Powers Gray)(Rubinstein, Yuval) Modified on 10/3/2008 (nmw, ). (Entered: 10/02/2008)
NOTICE OF ERROR re 65 Motion to Alter Judgment; emailed to yrubinstein@roselawyers.com, cc'd 5 associated attorneys −− The PDF file you docketed contained errors: 1. Incorrect header/caption/case number, 2. Please refile document, 3. Document entered in error; incorrect case number; please refile (nmw, ) (Entered: 10/03/2008)

Case: 1:05-cv-2325 As of: 07/28/2010 08:34 PM EDT 13 of 13

10/03/2008
10/07/2008 10/17/2008
10/24/2008
06/10/2009 06/10/2009 06/17/2009 06/29/2009
07/01/2009 07/07/2009

66 MOTION to Alter Judgment as to 63 Memorandum &Opinion As Corrected by BARBARA ALIOTTA (Attachments: # 1 Text of Proposed Order, # 2 Exhibit List, # 3 Exhibit 1 − Declaration of James Cantrell, # 4 Exhibit 2 − Declaration of Joan Fairfield, # 5 Exhibit 3 − Declaration of Nancy Powers Gray, # 6 Exhibit 4 − Declaration of Kathy Haag, # 7 Exhibit 5 − Declaration of Carole Mann, # 8 Exhibit 6 − Declaration of Mark Valentine, # 9 Exhibit Declaration of Jackson Ware, # 10 Exhibit 8 − Declaration of Nancy Powers Gray)(Rubinstein, Yuval) (Entered: 10/03/2008)
67 BILL OF COSTS by MARTIN J. GRUENBERG. (Jones, William) (Entered: 10/07/2008)
68 Memorandum in opposition to re 66 MOTION to Alter Judgment as to 63 Memorandum &Opinion As Corrected MOTION to Alter Judgment as to 63 Memorandum &Opinion As Corrected MOTION to Alter Judgment as to 63 Memorandum &Opinion As Corrected filed by MARTIN J. GRUENBERG. (Jones, William) (Entered: 10/17/2008)
69 REPLY to opposition to motion re 66 MOTION to Alter Judgment as to 63 Memorandum &Opinion As Corrected MOTION to Alter Judgment as to 63 Memorandum &Opinion As Corrected MOTION to Alter Judgment as to 63 Memorandum &Opinion As Corrected filed by BARBARA ALIOTTA. (Rubinstein, Yuval) (Entered: 10/24/2008)
70 ORDER denying 66 the plaintiffs' motion to alter or amend judgment. Signed by Judge Ricardo M. Urbina on 06/10/2009. (lcrmu1) (Entered: 06/10/2009)
71 MEMORANDUM OPINION. Signed by Judge Ricardo M. Urbina on 06/10/2009. (lcrmu1) (Entered: 06/10/2009)
72 Unopposed MOTION for Entry of Final Judgment by BARBARA ALIOTTA (Attachments: # 1 Text of Proposed Order, # 2 Text of Proposed Order Proposed Final Judgment)(Rubinstein, Yuval) (Entered: 06/17/2009)
73 NOTICE OF APPEAL as to 71 Memorandum &Opinion, 63 Memorandum &Opinion, 70 Order on Motion to Alter Judgment, 62 Order on Motion for Summary Judgment, Order on Motion for Partial Summary Judgment by BARBARA ALIOTTA. Filing fee $ 455, receipt number 00900000000001890394. Fee Status: Fee Paid. Parties have been notified. (Rubinstein, Yuval) (Entered: 06/29/2009)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 73 Notice of Appeal, (jf, ) (Entered: 07/01/2009)
74 FINAL JUDGMENT. For the reasons set forth in the Order and Memorandum Opinion granting Defendant's Motion for Summary Judgment entered September 18, 2008, the Memorandum Opinion denying Plaintiffs' Motion to Alter or Amend Judgment entered June 10, 2009, and based on the record as a whole, it is hereby ORDERED that final judgment is entered in favor of Federal Deposit Insurance Corporation, and the case is dismissed as to all plaintiffs. Signed by Judge Ricardo M. Urbina on 7/6/2009. (tg, ) (Entered: 07/07/2009)

 
 614 F.3d 556 (2010)
Barbara ALIOTTA, et al., Appellants v.
Sheila C. BAIR, Chairman, Federal Deposit Insurance Corporation, Appellee.
No. 09-5234.
United States Court of Appeals, District of Columbia Circuit.
Argued April 13, 2010. Decided August 13, 2010.
558 *558 Joshua N. Rose argued the cause for appellants. With him on the briefs were David L. Rose and Yuval Rubinstein.
Barbara R. Sarshik, Counsel, Federal Deposit Insurance Corporation, argued the cause for appellee. With her on the brief were Colleen J. Boles, Assistant General Counsel, Lawrence H. Richmond, Senior Counsel, and Jennifer M. Barozie, Senior Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.
Before: SENTELLE, Chief Judge, GINSBURG and BROWN, Circuit Judges.
Opinion for the Court filed by Circuit Judge BROWN.
BROWN, Circuit Judge:
A group of former employees (class members or Aliotta plaintiffs) of the Federal Deposit Insurance Corporation (FDIC or the Agency) sued the Agency, alleging violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 633a.[1] Specifically, class members claimed FDIC's management targeted older employees in a series of downsizings implemented between 1998 and 2005. The district court granted summary judgment on all claims in FDIC's favor, determining0907 after excluding the employees who accepted FDIC's buyout/early retirement offer from its statistical analysis0907that the class members failed to produce evidence from which a jury could reasonably conclude that (1) FDIC intentionally treated older employees less favorably than younger employees, or (2) that a neutral employment practice fell more harshly on older employees and could not be justified by business necessity. We agree and affirm the judgment of the district court.
I
The FDIC is an independent federal agency that insures federal bank and savings and loan deposits. It also regulates state-chartered banks, establishes receiverships, and manages assets of failed banking institutions. 559 FDIC's workload0907 *559 especially the workload of the Division of Resolutions and Receiverships (DRR) is 0907 highly correlated with the health of the banking industry: when bank failures increase, FDIC's workload increases; when bank failures decrease, FDIC's workload declines. See Aliotta v. Bair, 576 F.Supp.2d 113, 115-16 (D.D.C.2008).
On August 6, 2004, FDIC Chief Operating Officer John Bovenzi sent an e-mail to all FDIC employees entitled "Workforce Planning for the Future." The memo outlined certain "preliminary conclusions" related to the "2005 planning and budget formulation process," evaluating industry and technological trends, forecasting the need for greater agility and adaptability by the agency, and stated: "The FDIC of the future will be a smaller, more flexible agency." Bovenzi explained that "all indicators point[ed] to a smaller FDIC with a somewhat different mix of skills in the future" and warned that some divisions and offices within the Agency might reduce overall staffing levels, while others might have "workload requirements or skill set[ ] imbalances that warrant filling selected vacancies." Two weeks later, DRR Director Mitchell Glassman sent a follow-up memo to his division's employees confirming the Agency's view that changes in the banking industry, advances in technology, and workflow improvements had led to "declining workload and excess staff" and thus might require "difficult decisions... regarding the size and structure of [the] division." This communication was followed by a string of e-mails and memos implementing

cross-training plans, voluntary rotational assignments, and other staffing changes, forecasting staff reductions of 500 to 600 positions, and predicting that an involuntary Reduction-in-Force (RIF)[2] would still be required.
In a series of memos in October 2004, FDIC management informed staff it planned to reduce the DRR workforce by 53%, from 515 to 240 positions. Buyouts would be offered to all permanent DRR employees (with the exception of a small group of "Executive Management" employees), as well as to employees throughout the Agency on a more limited basis. The offer would include a cash payment equal to 50% of the employee's total annual salary, the ability to combine the buyout with regular or early retirement, and no restrictions on the employee's ability to seek employment in another federal agency. The buyout period would last from November 2004 to May 2, 2005. Director Glassman's memo also informed DRR employees they would have the opportunity to apply for crossover opportunities with the Division of Supervision and Consumer Protection (DSC) through the Agency's Corporate Employee Program (CEP). Lastly, Glassman explained that a RIF would be implemented during 2005 "to involuntarily separate any remaining surplus [DRR] employees."
More than 575 FDIC employees applied for and accepted the buyout. 132 were DRR employees. Another 73 DRR employees transferred to other FDIC divisions. Moreover, as planned, in April 2005, Glassman announced the RIF would go forward and would be effective September 3, 2005. Glassman informed DRR employees that, "while the outcome of the RIF [was] not known, [his] notice [was] intended to alert [them] to the possibility [they] could be impacted through the RIF process." As of June 30, 2005, 312 permanent DRR employees were subject to the RIF. 56.1% of them were over age 50. Those employees who had resigned or retired before June 2005 in 560 connection with *560 the buyout program were not considered in the RIF process. 63 DRR employees were selected for involuntary termination and received RIF Notices terminating their employment, effective September 3, 2005.[3] FDIC terminated 53 of those 63 employees; 7 retired in lieu of separation; and 3 voluntarily resigned after receiving a specific RIF Notice. 233 DRR employees remained after the RIF.
In fall and winter 2005-06, the employees filed notices with the Equal Employment Opportunity Commission (EEOC). Am. Compl. ¶ 4, Aliotta v. Gruenberg, No. 05-02325 (D.D.C. Feb. 8, 2006) (Am. Compl.); see 29 U.S.C. § 633a(d). On December 5, 2005, they filed their complaint in the district court alleging FDIC violated 29 U.S.C. § 633a, the portion of the ADEA applicable to federal employers. See 29 U.S.C. § 633a(c). On July 25, 2006, the district court granted the employees' motion for class certification, defining the class as "[f]ormer or present employees of FDIC's Division of Resolution and Receiverships who were born on a date on or before September 30, 1955 and who, as a result of the 2005 RIF, either accepted a buyout or reduction in grade, or were terminated from their positions in the DRR." Aliotta v. Gruenberg, 237 F.R.D. 4, 13 (D.D.C.2006).
The parties filed cross-motions for summary judgment in the district court and submitted expert reports providing statistical analyses to support their positions. Analyzing only the 53 involuntary separations, 7 retirements in lieu of involuntary separation, and 3 resignations in lieu of involuntary separation, FDIC's expert, industrial and organizational psychologist Dr. P.R. Jeanneret, found the average age of the 63 DRR employees affected by the 2005 RIF was 48.28 years. Def.'s Mot. Summ. J., Ex. 27 at 6 (Jeanneret Report). Only 42.9% of the RIF'd employees were above the age of 50. Def.'s Mot. Summ. J., Ex. 27-1 at 20 (filed Feb. 26, 2008) (Jeanneret Rebuttal). On December 31, 2004 (before the RIF), 59.1% of permanent DRR employees were above the age of 50; on September 17, 2005 (after the RIF), the percentage of above-50 employees had increased slightly to 59.6%. Jeanneret Report at 17.
In contradistinction to Dr. Jeanneret's statistical analysis, class members' expert, Dr. Lance Seberhagen, included in his calculation of the "RIF-related" impact all employees affected by both the 2004-05 buyouts and the 2005 RIF. Def.'s Mot. Summ. J., Ex. 28 (Seberhagen Report). Dr. Seberhagen identified a set of "RIF-related separation codes" he believed captured the group of employees harmed. Id. at 3. The group included the codes assigned to voluntary retirements, early retirements, retirements and resignations in lieu of involuntary separation, resignations, terminations of term appointments, and involuntary terminations. Id. at 3, 17 tbl.20. Using those codes, he found that permanent DRR employees above the age of 50 were separated at 139.8% the rate of under-50 DRR employees. Id. at 5.
561 *561 Rejecting Dr. Seberhagen's analysis, the district court granted FDIC's motion for summary judgment and denied class members' motion for partial summary judgment. Aliotta, 576 F.Supp.2d at 115. The court concluded

that because employees who accepted FDIC's buyout offers did so voluntarily, the Agency's buyout program was not an "adverse employment action" and thus could not be considered as part of the employees' prima facie discrimination case. Id. at 120-24. Analyzing only the 2005 RIF, the court held class members had failed to adequately rebut FDIC's proffered nondiscriminatory justifications for the RIF. Id. at 124-28. The court concluded both the disparate treatment and disparate impact claims failed. Class members filed a motion to alter or amend the judgment, which the district court denied. Aliotta v. Bair, 623 F.Supp.2d 73, 75-76 (D.D.C.2009). This appeal followed.
II
Before proceeding to the merits, we first address FDIC's assertion class members waived their right to challenge the district court's failure to analyze their claims under the appropriate "pattern or practice" framework. FDIC insists class members never claimed before the district court FDIC engaged in a pattern or practice of discrimination. FDIC Br. at 22. We conclude class members alleged a pattern or practice claim in their complaint but may nonetheless have failed to preserve it at the summary judgment stage. However, even assuming they did preserve their pattern or practice claim, summary judgment was properly granted because the vagaries of the various analytical frameworks were no longer relevant.
Plaintiffs alleging age discrimination in violation of the ADEA may seek recovery under both disparate treatment and disparate impact theories of recovery. See Smith v. City of Jackson, 544 U.S. 228, 236-40, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005).[4] In a disparate treatment claim, plaintiffs seek to prove an employer intentionally treated some people less favorably than others because of their age. See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (stating plaintiff's age "must have `actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome'"). By contrast, 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 562 cannot be justified by business necessity." Hazen Paper Co. v. Biggins, 507 U.S. 604, 609, 113 S.Ct. 1701, 123 *562 L.Ed.2d 338 (1993). "`Proof of discriminatory motive . . . is not required under [the] disparate-impact theory.'" Id.
A. Class Members' Disparate Treatment Claim
Disparate treatment claims brought under the ADEA may involve "an isolated incident of discrimination against a single individual, or . . . allegations of a `pattern or practice' of discrimination affecting an entire class of individuals." Palmer v. Shultz, 815 F.2d 84, 90 (D.C.Cir.1987). In International Brotherhood of Teamsters v. United States, 431 U.S. 324, 360-62, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), the Supreme Court created a framework for litigating pattern or practice claims.[5] Pattern or practice cases proceed in two phases. In the initial, or "liability," phase of a pattern or practice lawsuit, the analysis focuses on whether unlawful discrimination has been the employer's regular or "systemwide" pattern or practice. Id. at 336, 97 S.Ct. 1843. In order to make out a prima facie case, the plaintiffs must prove "more than the mere occurrence of isolated or `accidental' or sporadic discriminatory acts." Id. They must establish, by a preponderance of the evidence, that discrimination "was the company's standard operating procedure[0907]the regular rather than the unusual practice." Id. In this phase, the plaintiffs need not show each individual member of the class "was a victim of the employer's discriminatory policy," id. at 360, 97 S.Ct. 1843, since "proof of the pattern or practice supports an inference that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy," id. at 362, 97 S.Ct. 1843 (explaining it is presumed that as a member of the class, each plaintiff has been the victim of the discriminatory conduct). Statistical evidence may suffice to establish a prima facie case if the disparities in treatment are significant. See, e.g., Wagner v. Taylor, 836 F.2d 578, 592 (D.C.Cir.1987); Ledoux v. District of Columbia, 820 F.2d 1293, 1303 (D.C.Cir. 1987).
In their amended complaint, the Aliotta plaintiffs alleged a persistent pattern or practice of discrimination spanning almost a decade. See Am. Compl. ¶¶ 56-94. The recitation included allegations that remarks made by FDIC management were hostile to older employees as well as allegations that buyout offers and RIFs in 2002, 2003,

and 2004 were specifically designed to reduce the number of older employees and that the complete sequence of events showed discrimination against employees over the age of 50 was the "regular rather than the unusual" practice at FDIC. Teamsters, 431 U.S. at 336, 97 S.Ct. 1843. It is nonetheless unclear (at least as to their allegations of disparate treatment) the pattern or practice claim survives on appeal because plaintiffs cannot raise on appeal claims they allege in their complaint but abandon at the summary judgment stage, see Road Sprinkler Fitters Local Union No. 669 v. Indep. Sprinkler Corp., 10 F.3d 1563 (11th Cir.1994) (declining to address a claim alleged in the complaint but not raised at summary judgment); Self Directed Placement Corp. v. Control Data Corp., 908 F.2d 462, 466 (9th Cir.1990) (same); see also Edmond v. U.S. Postal Serv., 949 F.2d 415, 422 563 (D.C.Cir. 1991) (stating that while "[t]here is no bright-line rule to determine whether a *563 matter has been properly raised in moving papers, . . . when a plaintiff's opposition is less than paradigmatic, . . . the question becomes one of sufficiency, i.e., whether in light of the policies behind the rule of waiver plaintiff sufficiently raised the issue below so that waiver should not apply").
In their motion for partial summary judgment, class members focus only on the 2004-05 buyout and point to no policies or other employment decisions targeting or adversely affecting older employees. See Pls.' Summ. J. Mem. at 1-4, Aliotta v. Bair, No. 05-02325 (D.D.C. Feb.25, 2008). Nor do they argue there is a material dispute concerning an intentional pattern or practice of discrimination. More significantly, FDIC challenged the disparate treatment claim and argued it should be analyzed under the McDonnell Douglas framework applicable to individual discrimination claims, not the Teamsters framework, and class members' opposition did not dispute the Agency's position. See Def.'s Mot. Summ. J. at 22; Pls.' Opp'n. at 29 (citing Teamsters only once and for a general proposition applicable to both individual and pattern or practice claims); see, e.g., Muhammad v. Giant Food Inc., 108 Fed.Appx. 757, 764 (4th Cir.2004) (explaining a passing reference to pattern or practice allegations in plaintiffs' responses to defendant's summary judgment motions and a failure even to cite Teamsters were insufficient to preserve plaintiffs' arguments that Teamsters applied to their claims).
The forfeiture debate seems largely beside the point. The class members' singular focus on the Teamsters analysis appears to hinge on a distinction without a difference. Once a prima facie case is established, the burden shifts to the employer to rebut the inference of discrimination by showing the employees' proof is either inaccurate or insignificant. Teamsters, 431 U.S. at 360, 97 S.Ct. 1843. Failure to rebut the inference moves a pattern and practice case to the remedial stage where each class member must show individual harm. Id. at 361-62, 97 S.Ct. 1843. However, as we explain below, class members' flawed statistical evidence is fatal to their claims under either framework since it fails to establish any adverse effect on older employees. See Segar v. Smith, 738 F.2d 1249, 1274 (D.C.Cir.1984) (noting plaintiffs' statistics must "show a disparity of treatment, eliminate the most common nondiscriminatory explanations of the disparity, and thus permit the inference that, absent other explanation, the disparity more likely than not resulted from illegal discrimination").
Under our decision in Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493 (D.C.Cir.2008), at the summary judgment stage, "once [an] employer asserts a legitimate, nondiscriminatory reason [for its challenged decision], the question whether the employee actually made out a prima facie case is `no longer relevant' and thus `disappear[s]' and `drops out of the picture.'" See id. at 494 (explaining that once an employer asserts a legitimate, nondiscriminatory explanation, "the district court need not 0907and should not 0907 decide whether the plaintiff actually made out a prima facie case"); id. (describing the prima facie case at the summary judgment stage as "a largely unnecessary sideshow"); see also Jones v. Bernanke, 557 F.3d 670, 678 (D.C.Cir.2009) (explaining "`the question whether the employee made out a prima facie case under the McDonnell Douglas framework `is almost always irrelevant' because `by the time the district court considers an employer's motion for summary judgment . . . the employer ordinarily will have asserted a legitimate, nondiscriminatory reason for the challenged decision''"). Thus, once an employer has submitted admissible evidence of a legitimate, non564 discriminatory reason for its decision, *564 any distinction between the burden-shifting frameworks becomes immaterial to the success of a discrimination case. Under either framework, the only relevant question is "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 employee]." Brady, 520 F.3d at 495.
Nonetheless, while Brady held that in an individual discrimination case, an employer's mere assertion of a legitimate, nondiscriminatory explanation renders the question whether the plaintiff made out a prima facie case

"almost always irrelevant," id. at 493, our decision in Segar v. Smith requires more from an employer in a pattern or practice case. See Segar, 738 F.2d at 1269-70 (explaining that because "the plaintiffs' initial offer of evidence [in a pattern or practice case] will have been so strong . . . the bare articulation of a nondiscriminatory explanation will not suffice to rebut it"). Under Segar, in a pattern or practice case, "the strength of the evidence sufficient to meet [an employer's] rebuttal burden will typically need to be much higher than the strength of the evidence sufficient to rebut an individual plaintiff's low-threshold McDonnell Douglas showing." Id. The Segar court, however, acknowledged that if an employer accused of a pattern or practice of discrimination satisfies its heightened rebuttal burden, the plaintiffs' prima facie case, as under Brady, becomes irrelevant. See id. at 1273 n. 20 (explaining that "`[w]here the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant'" since the district court "`has before it all the evidence it needs [to make the ultimate determination]'" (quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983))); id. at 1270 n. 15 (noting that "class actions often can be viewed as collapsing the prima facie and pretext stages of a suit involving an individual plaintiff"); id. at 1267 ("How far [the] prima facie showing will carry the plaintiff toward its ultimate burden of persuasion depends on both the strength of the plaintiffs' evidence and the nature of the defendant's response."). Because FDIC has done more than simply assert a nondiscriminatory explanation for the challenged actions0907it also submitted evidence demonstrating that class members' statistics, after excluding the voluntary buyouts, failed to show even an insignificant disparity between older and younger employees 0907Segar does not preclude us from applying the rule set forth in Brady.
In Segar, the court concluded the rebuttal of the employer, the federal Drug Enforcement Agency (DEA), failed as a matter of law because DEA submitted no admissible evidence to support its purported nondiscriminatory explanation. Id. at 1287-88. Here, FDIC sought to rebut class members' prima facie case in two ways. First, the Agency offered a legitimate, nondiscriminatory explanation for the RIF: it implemented the RIF to respond to decreased workload in DRR due to the improved health of the banking industry and to improve the Agency's responsiveness and efficiency. See Def.'s Mot. Summ. J. at 28. Unlike the employer in Segar, who presented no admissible evidence supporting its nondiscriminatory justification, FDIC submitted numerous communications between Agency officials and employees explaining its nondiscriminatory reasons for the RIF. See, e.g., E-mail from DRR Director Mitchell Glassman to DRR Employees (Aug. 19, 2004) (stating "[r]ecord profitability and capital in the banking industry," "[i]ndustry consolidation," "[e]merging technology," and "improved business 565 processes" had led to *565 "a declining workload and excess staff" and would require some "difficult decisions" regarding the "size and structure" of DRR); E-mail from FDIC Chief Operating Officer John Bovenzi to FDIC Employees (Oct. 26, 2004) (explaining a RIF in certain divisions would likely be necessary since "staffing levels [were] not justified by current or projected workloads"). Class members did not, at the summary judgment stage, and have not, on appeal, pointed to any evidence refuting FDIC's claim the RIF targeted DRR because of the division's reduced workload caused by improved conditions in the banking industry. See Aliotta, 576 F.Supp.2d at 125.
FDIC's rebuttal also included an attack on class members' statistical methodology. FDIC argued the buyout employees should not be included in class members' disparate impact analysis and submitted reports from its own statistical expert refuting their methodology, see Jeanneret Report at 6, 24; Jeanneret Rebuttal at 9-11. Unlike DEA's attack on the plaintiffs' statistical proof in Segar, 738 F.2d at 1272, FDIC's alternative statistical analysis demonstrated class members' statistics could not support an inference of discrimination. See Aliotta, 576 F.Supp.2d at 123 & n. 4, 125-26, 127-28 (holding the voluntary buyouts could not comprise any part of the employees' case and that, without the buyouts, the employees could show no adverse impact on older employees).
FDIC satisfied its rebuttal burden, and class members' prima facie case is therefore irrelevant. In order for class members to succeed on their disparate treatment claims, they must have produced evidence sufficient to demonstrate FDIC's nondiscriminatory reason for the RIF was pretext and that FDIC intentionally discriminated against older workers. See Brady, 520 F.3d at 494. Neither class members' statistical nor their non-statistical evidence is sufficient. See infra Sections IV, V.

B. Class Members' Disparate Impact Claim
Class members' disparate impact claim is easier to parse. In Segar, we held a class of plaintiffs alleging a pattern or practice of discrimination may also challenge the disparate impact of specific employment practices. Segar, 738 F.2d at 1266-67. 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, see Krodel v. Young, 748 F.2d 701, 709 (D.C.Cir.1984), but need only offer statistical evidence of a kind and degree sufficient to show the employment decision disproportionately impacts older employees, id.; see also Koger, 98 F.3d at 639. As we explained in Segar, by 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. See Moore v. Summers, 113 F.Supp.2d 5, 19 (D.D.C.2000) (noting "`an important point of convergence' between disparate treatment and disparate impact claims exists in class actions . . . [b]ecause both . . . claims `are attacks on the systemic results of employment practices [and] proof of each claim will involve a showing of disparity between the minority and majority groups in an employer's workforce'" (quoting Segar, 738 F.2d at 1267)).
In their amended complaint, class members allege the 2005 RIF "had a discriminatory impact against plaintiffs and other employees over the age of 50." Am. Compl. ¶ 86. At the summary judgment stage, they again argued 566 FDIC's actions disparately affected older employees and *566 offered statistical evidence to support their claim. See Pls.' Opp'n at 9-13. The district court, however, concluded class members' statistics were invalid and established no disparate impact. Aliotta, 576 F.Supp.2d at 126-28. In the alternative, the district court held FDIC had articulated a reasonable factor other than age, to wit, the "reduced workload" in DRR, that the class members failed to rebut. Id. at 127. Class members unsuccessfully challenged the court's holding in their motion to alter or amend the judgment and now continue to defend their claim of disparate impact on appeal.
III
The foregoing analysis reveals class members may not have preserved a distinct pattern and practice claim, but they assert both disparate treatment and disparate impact. Both class member claims are premised almost entirely upon the statistical findings of their expert, Dr. Seberhagen. In order for class members to show a disparate effect on older workers, they must combine the effects of the involuntary terminations resulting from the 2005 RIF with the effects of the voluntary retirements from the 2004-05 buyout offers. But, as the district court properly concluded, id. at 120-24, class members cannot include as evidence of discrimination the statistics of a group of employees who, because they voluntarily accepted a buyout, suffered no adverse employment action. Without the inclusion of the voluntary terminations, class members' claims of discrimination collapse. The statistical impact of the involuntary RIF terminations reveals a disparate effect on younger, not older, employees, see Jeanneret Rebuttal at 14-16, 19-20 tbls.2, 3 & 4.
Under either a disparate treatment or disparate impact theory of discrimination, plaintiffs must show they suffered an adverse employment action. See, e.g., Barnette v. Chertoff, 453 F.3d 513, 515 (D.C.Cir.2006); see also Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.Cir.2008) (same). This court has defined an "adverse employment action" as "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits." Douglas v. Donovan, 559 F.3d 549, 552 (D.C.Cir.2009). "Thus, not everything that makes an employee unhappy is an actionable adverse action." Id.
"`[R]esignations or retirements are presumed to be voluntary. . . .'" Veitch v. England, 471 F.3d 124, 134 (D.C.Cir.2006) (Rogers, J., concurring); see also Keyes v. District of Columbia, 372 F.3d 434, 439 (D.C.Cir.2004); Henn v. Nat'l Geographic Soc'y, 819 F.2d 824, 828 (7th Cir.1987). This includes "buyout" plans. See, e.g., Terban v. Dep't of Energy, 216 F.3d 1021, 1023-24 (Fed.Cir.2000). In certain cases, the doctrine of constructive discharge enables an employee to overcome the presumption of voluntariness and demonstrate she suffered an adverse employment action by showing the resignation or retirement was, in fact, not voluntary. See, e.g., Rowell v. BellSouth Corp., 433 F.3d 794, 805 (11th Cir.2005); Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 480 (1st

Cir.1993). The test for constructive discharge is an objective one: whether a reasonable person in the employee's position would have felt compelled to resign under the circumstances. See Bodnar v. Synpol, Inc., 843 F.2d 190, 194 (5th Cir. 1988) (stating constructive discharge claim "relies on an objective test to evaluate what otherwise appears to be voluntary conduct by an employee"); Rowell, 433 F.3d at 803 (describing test). "The `voluntariness' 567 question . . . turns on such things as: did the person receive information about what would happen in response to *567 the choice? [W]as the choice free from fraud or other misconduct? [D]id the person have an opportunity to say no?" Henn, 819 F.2d at 828 (holding plaintiffs who accepted early retirement buyout could prevail on ADEA claim only by showing the employer "manipulated the options so that they were driven to early retirement not by its attractions but by the terror of the alternative"); see Bodnar, 843 F.2d at 192-94 (analyzing allegedly coercive factors in employer's early retirement offer and concluding employees had failed to proffer "objective evidence that working conditions had become so intolerable as to force [employees'] resignation"). Mere uncertainty due to the threat of a RIF layoff does not translate into a constructive discharge. See Adams v. Lucent Techs., Inc., 284 Fed.Appx. 296, 301-02 (6th Cir.2008) (unpublished table decision) (holding plaintiffs' uncertainty regarding the effect of a potential merger on their jobs did not establish early retirement offer constituted constructive discharge); Vega, 3 F.3d at 480-81 (noting nothing in the record indicated refusing early retirement meant employees would be discharged or subjected to intolerable working conditions).
Class members argue the district court could not consider the voluntariness of the buyouts an 0907 individual question0907until the remedial phase of their pattern and practice claim and that even if the question of voluntariness could be addressed during the liability phase, the court resolved it incorrectly. The former argument is specious; the district court considered voluntariness not in determining the remedial issue whether any individual employee was entitled to compensation, but rather in determining whether the statistical analysis proffered by the class members showing a disparate number of older employees accepted the buyout could "comprise any part of [their] prima facie case of discrimination." Aliotta, 576 F.Supp.2d at 123-24. A class-wide voluntariness inquiry is appropriate for that purpose.
That leaves the question of whether FDIC's buyout offers were voluntary. Class members argue they were not and thus constitute an "adverse employment action" on which they premise liability under the ADEA. Employees' Br. at 15-17, 53-59. Accordingly, they contend any analysis of the sufficiency of their proof should include those employees who accepted the buyout. Id. at 35-38. After reviewing the Agency's reorganization charts and seniority lists, class members say many older DRR employees were convinced they faced a "near certainty of being terminated in a RIF" if they did not accept the buyout. Id. at 17. Because the employees "reasonably believed they were going to lose their jobs" if they did not accept early retirement, they were essentially "compelled" to accept the buyout. Id. at 15, 57-58. The employees' decisions to accept the buyout, class members argue, were motivated not by the attractiveness of the offer, but rather by the "terror of the alternative." Id. at 17. We are not persuaded.
Undoubtedly, the employees who accepted buyout offers faced a difficult decision: they could leave the Agency early and receive an incentive payment and benefits, or they could choose to stay and face the risk of termination in the RIF. But, senior employees were not faced with "an impermissible take-it-or-leave-it choice between retirement or discharge," see Rowell, 433 F.3d at 805, nor were they otherwise compelled to accept the buyout.
First, with the possible exception of a few individual employees who claim the size of the reduction and the veterans and seniority preferences of their co-workers guaranteed they would not survive a RIF, see Employees' 568 Br. at 15-16, employees considering whether to accept the buyout *568 could do no more than speculate that they might be terminated. Although a RIF seemed inevitable, see E-mail from FDIC COO John Bovenzi to FDIC Employees (Oct. 26, 2004) (indicating the "necessary staffing reductions [in DRR] . . . c[ould not] be accomplished entirely through voluntary departures") (Bovenzi E-mail), it was impossible for DRR employees to know how many employees would be subject to the RIF. That number was dependent on retirements, transfers to other divisions within the Agency, and general attrition. Moreover, it was impossible for employees deciding whether to leave voluntarily to know exactly who would be RIF'd. As noted supra, FDIC's RIF process gives preference to certain types of employees0907for example, veterans and those with seniority. Without knowing whether certain employees with those preferences would be subject to the RIF, it was impossible for employees to calculate their chances of surviving the RIF a 0907 chance that improved if a greater number of preference employees accepted the buyout and dropped out of the competition for positions. Moreover, the "bump" and

"retreat" rights of FDIC employees subject to a RIF are complex, see 5 C.F.R. § 351.701; Aliotta v. Bair, Decl. of Pamela K. Mergen, Lead Human Resources Specialist at FDIC, No. 05-cv-02325 (D.D.C. Feb. 21, 2008); see also Benjamin Franklin Am. Legion Post No. 66 v. U.S. Postal Serv., 732 F.2d 945, 946 n. 1 (D.C.Cir.1983) ("The process by which RIF procedures work is quite complex."), making it almost impossible for any individual employee to know beforehand whether she will be terminated. Class members' purported "Hobson's choice" between retirement and termination, Employees' Br. at 54, might never materialize.
Furthermore, employees were not pressured into accepting the offer. Cf. James v. Sears, Roebuck & Co., 21 F.3d 989, 992-94 (10th Cir.1994) (evidence employees were pressured into accepting buyout and early retirement plan by employers' threats to fire them was sufficient to establish constructive discharge). They were given detailed information about the terms of the buyout and were allowed several months to decide whether to accept it, see Bovenzi Email. See, e.g., Bodnar, 843 F.2d at 193-94 (holding fifteen days to consider early retirement offer was "ample time" for an employee to consult attorney and examine options). Employees were not threatened with lower pay or benefits if they did not accept the buyout, and they had the option of applying for transfer to other FDIC divisions. In fact, 73 DRR employees applied for and accepted transfers to other positions within the Agency before the RIF began.
The district court's rejection of class members' statistics also implies, as suggested by FDIC in the record, that the statistics were based on a flawed methodology and therefore not probative of whether the Agency intentionally discriminated against older employees. As demonstrated by our discussion above, there are multiple reasons an older employee presented with a buyout offer of early retirement in advance of an impending RIF might choose to accept the offer. The employee might feel she has no choice because being involuntarily terminated in the RIF is inevitable. Alternatively, the employee may simply believe the early retirement offer is such a good deal she voluntarily chooses to take advantage of the buyout incentives. Dr. Seberhagen's statistics, however, do not appear to consider employee choice. If his statistics do not control for this important explanatory variable, they tell us nothing about why older employees took the buyouts, and are therefore not relevant to determining whether FDIC discriminated against them. See, e.g., Garcia v. Johanns, 444 F.3d 625, 635 569 (D.C.Cir.2006) (noting appellants' statistical *569 analysis was "analytically flawed" because it "did not incorporate key relevant variables connecting disparate impact to [the employer's] decisionmaking criteria"); Segar, 738 F.2d at 1261 ("The choice of proper explanatory variables determines the validity of the regression analysis."); see also Jeanneret Rebuttal at 10-11 (arguing there are "no valid conclusions to be drawn from Dr. Seberhagen's work" because his statistics "[do not] attempt[] to segregate key variables for analysis" and that because he "lump[ed] all the[] outcomes together and assess[ed] only the bottom line result," his analysis "yields no reliable inferences about the process he was purporting to study").
Class members also argue our decision in Schmid v. Frosch, 680 F.2d 248 (D.C.Cir.1982) (per curiam), justifies inclusion of those employees who accepted the buyout in their statistical analysis. Employees' Br. at 34-35. They argue that under Schmid, the group of employees adversely affected by a RIF includes all employees "hurt" by the RIF. Id. at 35. The "threat[]" of termination facing employees considering whether to accept the buyout, they argue, was sufficient "harm" to constitute an adverse employment action. Id. Class members thus argue the employees who accepted the buyout were just as much "victims" of FDIC's discriminatory policy as those employees who refused the buyout and suffered involuntary termination in the RIF.
Class members construe our holding in Schmid far too broadly. In Schmid, we concluded the group of employees actually "hurt" by the RIF and thus "probative" of the plaintiff's age discrimination claim were those who had received RIF notices and were either separated or downgraded as a result. 680 F.2d at 250-51; see also id. at 251 n. 8 (noting the "usefulness [of plaintiff's statistics] depends on all the surrounding facts and circumstances"). The employees the class members seek to include here never received RIF notices; they left FDIC voluntarily before any RIF notices were issued. This distinction is not, as class members suggest, "immaterial." The statistical analysis in Schmid is therefore entirely distinguishable.
Accepting an employer's offer of voluntary early retirement may often be beneficial to older or more senior employees. See Henn, 819 F.2d at 826, 828; Smith v. World Ins. Co., 38 F.3d 1456, 1461 (8th Cir.1994). An employer should therefore not be deterred from taking voluntary measures to reduce its workforce, especially where the need for involuntary reduction measures depends on the success of the employer's efforts to

encourage voluntary responses. Routinely including the statistical impact of voluntary terminations in the assessment of disparate impact would discourage employers from offering incentives for voluntary exits from the workforce. To be sure, where there is evidence an employer's voluntary measures are motivated by nothing more than a desire to rid the company of older employees, such incentives may become both undesirable and unlawful. Nonetheless, as we discuss below, class members have put forward no evidence demonstrating FDIC's buyout plan was motivated by discriminatory intent.
IV
Having concluded FDIC's voluntary buyouts were not adverse employment actions and thus should not be considered as part of class members' case, we analyze only the independent effect of the 2005 RIF itself and find that, once the buyouts are excluded, their case effectively collapses. The remaining statistical evidence supports neither of their claims.
570 The average age of those employees separated by the RIF was 48.28 years. Jeanneret *570 Report at 6. 62% of the RIF'd employees were under age 50. Jeanneret Rebuttal at 13. Moreover, the RIF'd population was statistically significantly younger than the population from which it was drawn. While 56.1% of permanent DRR employees subject to the RIF were over 50, only 42.9% of those actually RIF'd were 50 or older. Id. at 14. Between December 2004 (before the RIF) and December 2005 (after the RIF), the average age of DRR employees remained constant at 52.10 years of age. Id. at 12; Jeanneret Report at 16 ex.4, and the average age of the overall FDIC workforce increased slightly from 46.63 years to 46.93. Defs.' Mot. Summ. J., Ex. 23 at 27 tbl.F. Thus, the relevant statistics do not support the employees' theory that the RIF disproportionately affected older employees. If anything, the evidence establishes exactly the opposite 0907that the RIF disproportionately affected younger employees.
V
In addition to their flawed statistical analysis, class members argue certain statements made by FDIC officials raise a reasonable inference of discriminatory bias against older employees. They assert then-Chairman Donald Powell's comment made in 2001 or 2002 to a group of employees that he "want[ed] young people around [him] . . . [because] they have all the innovative ideas" and a statement made by the then-Deputy Chairman of the FDIC, Donald Greer, in a 1995 magazine article that he would like to "keep some of the youngest and brightest people who are moving up in the ranks" support the inference that FDIC targeted DRR for reduction in 2004-05 because it had the highest proportion of older employees among the Agency's divisions. Employees' Br. at 47-50. The district court dismissed Chairman Powell's statements as unsupportive of class members' claims because they did not present any evidence Powell actually made the alleged statement. Aliotta, 576 F.Supp.2d at 124-25. [6] We agree with the district court. Class members' response on appeal that "Powell did not deny saying it," Employees' Br. at 48, does not persuade us otherwise.
Lastly, class members contend FDIC's Corporate Employee Program demonstrates FDIC's 2004-05 downsizing efforts were not intended to respond to a reduced workload but rather to purge the Agency of older DRR employees and replace them with younger ones. Employees' Br. at 43-46. The district court rejected class members' theory, concluding that because the positions created under the CEP were for workers assuming different responsibilities in different departments than the employees, the two groups were "not so similarly situated as to support the proposition that the FDIC conducted the voluntary buyout, transfers and RIF as an elaborate ruse to flush the agency of senior staff." Aliotta, 576 F.Supp.2d at 128. Again, the district court got it exactly right. CEP recruits0907the vast majority of whom were under age 50, see Seberhagen Report at 12 tbl.14 (noting 201 out of 214 new hires in 2005 were under 50)0907did receive some training in DRR functions. But they were hired specifically to pursue DSC examiner commissions. Moreover, DRR, in particular, hired only a handful 571 of new employees during 2005, Seberhagen Report at 13 tbl.16; Jeanneret Rebuttal at 15, even *571 though it reduced its workforce of over 500 by more than half, Jeanneret Report at 16. Thus, although at first glance FDIC's recruitment of new, young workers while simultaneously separating others because of its reduced

workload might raise suspicions of discrimination, a closer analysis reveals no evidence the Agency's actions were inspired by improper motives.
VI
For the foregoing reasons, the judgment of the district court is
Affirmed.
[1] Section 633a 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).
[2] A "reduction-in-force" is an administrative procedure that allows agencies to eliminate jobs and reassign or terminate employees who occupied the abolished positions.
[3] Reductions-in-Force are governed by 5 C.F.R. pt. 351 and FDIC's RIF Circular 2100.4. See FDIC Br. at 11. The process requires two rounds of competition and provides employees who might otherwise be terminated with certain "bump" and "retreat" rights. See 5 C.F.R. § 351.701. The process favors veterans, as well as employees with seniority and job experience within the agency. See id. §§ 351.501-504. FDIC is also required to notify employees likely to be affected once a decision is made to conduct a RIF and must send specific RIF notices to employees selected for a RIF action. See id. § 351.801(a)(1); Def.'s Mot. Summ. J., Ex. 21, Aliotta v. Bair, No. 05-02325 (D.D.C. Feb. 25, 2008) (Def.'s Mot. Summ. J.). The employees do not allege FDIC did not conduct its 2005 RIF in accordance with federal regulations or its own Agency guidelines.
[4] Although neither this court nor the Supreme Court has addressed the question whether the ADEA authorizes disparate impact claims against federal employers, we need not resolve the issue in this case since we conclude class members have failed to demonstrate any adverse effect on older employees. See City of Jackson, 544 U.S. at 239-40, 125 S.Ct. 1536 (holding only that the ADEA authorizes disparate impact claims against employers under 29 U.S.C. § 623, a section that does not apply to federal employers); Koger v. Reno, 98 F.3d 631, 639 & n. 2 (D.C.Cir. 1996) (declining to decide whether disparate impact analysis applies to age discrimination claims because plaintiffs failed to establish a prima facie case); see also Aliotta, 576 F.Supp.2d at 126 n. 7 (noting "[m]embers of the D.C. District Court remain divided on the issue" of whether a plaintiff may allege disparate impact under the ADEA against federal employers). For the same reason, we need not resolve whether the "business necessity" test for rebutting a disparate impact claim under Title VII or the less strict "reasonable factor other than age" test for rebutting a disparate impact claim against a private-sector employer under the ADEA, see City of Jackson, 544 U.S. at 243, 125 S.Ct. 1536 (explaining distinction between the tests), would apply if indeed such a claim may lie against a federal employer under § 633a.
[5] In Teamsters, the plaintiffs brought their "pattern or practice" discrimination claims under Title VII of the Civil Rights Act of 1964. 431 U.S. at 328, 97 S.Ct. 1843. Nevertheless, this court has applied the Teamsters framework to ADEA cases. See, e.g., Schuler v. PricewaterhouseCoopers, LLP, 514 F.3d 1365, 1370 (D.C.Cir.2008).
[6] The district court did not discuss the then-Deputy Chairman's alleged statement, but even if class members provided sufficient evidence he actually made the statement, it is insufficient, on its own, to establish proof of discriminatory intent. See, e.g., Bevan v. Honeywell, 118 F.3d 603, 610 (8th Cir.1997) (noting "stray remarks of nondecisionmakers. . . are not sufficient . . ., standing alone, [to] raise an inference of discrimination").
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