United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 13, 2010 Decided August 13, 2010 

No. 09-5234 

BARBARA ALIOTTA, ET AL., 

APPELLANTS

v. 

SHEILA C. BAIR, CHAIRMAN, FEDERAL DEPOSIT INSURANCE 

CORPORATION, 

APPELLEE

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:05-cv-02325-RMU) 

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. 
2 

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, determining—after excluding 

the employees who accepted FDIC’s buyout/early retirement 

offer from its statistical analysis—that 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. FDIC’s workload—

especially the workload of the Division of Resolutions and 

 

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). 
3 

Receiverships (DRR)—is 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 Reductionin-Force (RIF)2

 would still be required. 

 

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. 
4 

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 connection with 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 
5 

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). 

 

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. 
6 

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. 

Rejecting Dr. Seberhagen’s analysis, the district court 

granted FDIC’s motion for summary judgment and denied 

class members’ motion for partial summary judgment. 
7 

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 
8 

Jackson, 544 U.S. 228, 236–40 (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 (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 cannot be 

justified by business necessity.” Hazen Paper Co. v. Biggins, 

507 U.S. 604, 609 (1993). “‘Proof of discriminatory motive 

. . . is not required under [the] disparate-impact theory.’” Id. 

 

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 (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 (explaining distinction between 

the tests), would apply if indeed such a claim may lie against a 

federal employer under § 633a. 
9 

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 (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. 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[—]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, 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 (explaining it is presumed that as a member 

of the class, each plaintiff has been the victim of the 

 

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. 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). 
10 

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. 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 1568 (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 (D.C. Cir. 1991) (stating that 

while “[t]here is no bright-line rule to determine whether a 

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”). 
11 

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 F. App’x 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. 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. 

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 
12 

(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—and should not—

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, non-discriminatory reason for its decision, 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. 
13 

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 lowthreshold 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 (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 actions—it also submitted evidence demonstrating 
14 

that class members’ statistics, after excluding the voluntary 

buyouts, failed to show even an insignificant disparity 

between older and younger employees—Segar 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 processes” had led to “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 
15 

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; Jenneret 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 
16 

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 FDIC’s 

actions disparately affected older employees and 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. 
17 

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. 
18 

 “‘[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’ question . . . 

turns on such things as: did the person receive information 

about what would happen in response to 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 
19 

the threat of a RIF layoff does not translate into a constructive 

discharge. See Adams v. Lucent Techs., Inc., 284 F. App’x 

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 individual question—

until 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 
20 

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’ Br. at 

15–16, employees considering whether to accept the buyout 

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 
21 

types of employees—for 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 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 
22 

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 (D.C. Cir. 2006) 

(noting appellants’ statistical 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”). 
23 

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 
24 

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. 

The average age of those employees separated by the RIF 

was 48.28 years. Jeanneret 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. 
25 

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—that 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. 

 

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”). 
26 

 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 recruits—the 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)—did receive 

some training in DRR functions. But they were hired 

specifically to pursue DSC examiner commissions. 

Moreover, DRR, in particular, hired only a handful of new 

employees during 2005, Seberhagen Report at 13 tbl.16; 

Jeanneret Rebuttal at 15, even 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.