Breen v. Chao

• Decision Date: 26 May 2017
• Docket Number: Civil Action No. 05-0654 (PLF).
• Parties: Kathleen BREEN, et al., Plaintiffs, v. Elaine L. CHAO, Secretary of Transportation, Department of Transportation, et al., Defendants.
• Court: U.S. District Court — District of Columbia

253 F.Supp.3d 244

Kathleen BREEN, et al., Plaintiffs,

v.Elaine L. CHAO, Secretary of Transportation, Department of Transportation, et al.,¹ Defendants.

Civil Action No. 05-0654 (PLF).

United States District Court, District of Columbia.

Signed May 26, 2017

Brian Christopher Corman, Shaylyn Capri Cochran, Cohen Milstein Sellers & Toll PLLC, Valencia R. Rainey, Washington, DC, Joseph D. Gebhardt, The Law Offices of Gary M. Gilbert & Associates, P.C., Silver Spring, MD, Daniel K. Gebhardt, The Law Offices of Daniel K. Gebhardt, Charles Williamson Day, Jr., The Day Law Practice LLC, Rockville, MD, Lenore Cooper Garon, Law Office of Lenore C. Garon, PLLC, Falls Church, VA, for Plaintiffs.

Marcia Berman, Adam D. Kirschner, Brian G. Kennedy, Elizabeth L. Kade, Lisa Zeidner Marcus, Tim H. Nusraty, U.S. Department of Justice, William B. Jaffe, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendants.

OPINION

PAUL L. FRIEDMAN, United States District Judge

Plaintiffs, former flight service ("FS") specialists with the Federal Aviation Administration ("FAA"), brought this suit against the FAA and the Department of Transportation (collectively "defendants" or the FAA) alleging discrimination on the basis of age, in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. Defendants terminated plaintiffs' employment pursuant to a reduction in force ("RIF") that involved outsourcing the FS function to Lockheed Martin, a private company. Plaintiffs allege (1) a disparate treatment claim—that the FAA decided to outsource the FS function because of the age of the FS specialists, and (2) a disparate impact claim—that the FAA's decision had a disproportionate impact on workers over the age of 40.

Defendants have moved for summary judgment on both theories. As to the disparate treatment claim, they contend that (1) the RIF applied to every FS specialist, regardless of age; (2) the agency had legitimate, nondiscriminatory reasons for outsourcing the FS function; and (3) comments made by FAA managers about age and the aging workforce were not made by decision makers in the A–76 process or the 2005 RIF decision and, in any event, were legitimate in the context in which they were made. As for the disparate impact claim, defendants argue that there can be no disparate impact claim based on the RIF or, alternatively, on the 2002 decision to designate the FS function as "non-core," because neither was a facially neutral employment policy or practice. Upon careful consideration of the parties' briefs, the relevant legal authorities, and the entire record in this case, the Court will deny defendants' summary judgment motion on plaintiffs' disparate treatment claim but grant their motion on plaintiffs' disparate impact claim.²

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Role of Flight Service Specialists

FS specialists provide preflight, inflight, and airport advisory information to aircraft operators. Def. Facts ¶ 3. Before a flight, FS specialists communicate with pilots directly, providing meteorological and aeronautical information to help them plan safe flights. Pl. Opp. Facts at 1–2. FS specialists also communicate with pilots during flight by radio, helping them to avoid hazards, aiding them during emergencies, helping lost pilots find their bearings, and initiating search and rescue operations if they cannot confirm that a flight has ended safely. Id.; Def. MSJ at 4; Def. MSJ, Ex. 61 at 33–34 [Dkt. 256–62]; Def. MSJ, Ex. 80 at 37 [Dkt. 256–81]. FS specialists can also disseminate information through the National Air System via Notices to Airmen. Pl. Opp. Facts at 1–2. FS specialists are not involved in separating or controlling aircraft while in the air; that is the job of so-called "Aircraft Separating Controllers." Def. Facts at ¶ 5; see also 5 U.S.C. § 2109(1)(A)(i). FS specialists also cannot prohibit a pilot from flying, but can recommend that pilots do not fly if doing so would be hazardous. Def. MSJ at 3; 5 U.S.C. § 2109(1)(A)(ii).

FS specialists comprised one of several air traffic control functions that the FAA administered prior to the October 2005 RIF. Def. Facts ¶ 1. At that time, commercial airlines relied on their own or on a contractors' employees to provide the information that FS specialists also provided. Id. ¶ 9; Def. MSJ, Ex. 61 at 95 [Dkt. 256–62]; Def. MSJ, Ex. 86 at 52 [Dkt. 256–87]; Def. MSJ, Ex. 51 at 44 [Dkt. 256–52]. Some private pilots also used private companies to plan for flights. Def. Facts ¶ 10; Def. MSJ, Ex. 50 at 52 [Dkt. 256–51]. Despite these alternatives, plaintiffs contend that the FAA's FS function provided the most comprehensive source of flight information. Pl. Opp. Facts at 4–5 ("Flight Service is virtually the only source of in-flight air/ground services for general aviation.") (emphasis omitted); Pl. Facts at ¶ 14 ("[N]o non-governmental workforce ... was trained and certified to perform all of the functions of flight service for general aviation.").

The FAA's "Aerospace Forecast" for 2005–2016 noted several ominous trends affecting the FS function, such as the fact that "[t]he introduction of new technology for flight service has significantly changed the operating environment for the flight service system." Def. MSJ, Ex. 3 at VII–16 [Dkt. 256–4]. The FAA predicted that the "increased use of automation and new system capabilities" would "dampen the growth in traditional FS[ ] workload measures," such as contact with pilots. Id. at VII–16–18. In the years leading up to 2005, the FAA collected data showing that private pilots increasingly accessed weather reporting, flight planning, and navigational assistance—the traditional FS functions—online. Def. MSJ, Ex. 42 ¶ 6 [Dkt. 256–43]; Def. MSJ, Ex. 80 at 33–34 [Dkt. 256–81]; Def. MSJ, Ex. 84 at 50 [Dkt. 256–85]. The FAA also approved systems for transmitting weather information directly into pilots' cockpits during flight without the need for a FS specialist. See Def. MSJ, Ex. 1 at 1 [Dkt. 256–2]. And comprehensive automated weather systems replaced the FS specialists' task of going outside at airports to observe weather conditions. Def. MSJ, Ex. 53 at 59 [Dkt. 256–54]; Def. MSJ, Ex. 61 at 26 [Dkt. 256–62]; Def. MSJ, Ex. 62 at 73–74 [Dkt. 256–63].

As a result of these changes, the work of FS specialists declined; there were fewer contacts with pilots, fewer briefings, and fewer flight plan filings every year. Def. MSJ, Ex. 2 at VII–8 [Dkt. 256–3]; Def. MSJ, Ex. 3 at VII–16, VII–18 [Dkt. 256–4]. As FS specialists retired or left their jobs, the FAA decided not to rehire new FS specialists to replace them. Pl. MSJ, Ex. 33 at 142 [Dkt. 263–35]. The number of FS specialists the FAA employed gradually declined and the remaining FS specialists were gradually "aging" in the years leading up to 2005. Def. Facts ¶¶ 18–19; Def. MSJ at 15–16. FS facilities also were starting to deteriorate insofar as buildings required repair or replacement and the computer system used by FS specialists required major investment and attention. Def. MSJ at 17.

These changes caused the FAA to seek methods to consolidate air traffic control functions in order to save money. See, e.g., Def. Facts ¶¶ 16–17. A number of internal and external studies found that the FAA could save significant amounts of money by restructuring and consolidating its FS function. Id. ¶¶ 21–23; Pl. Facts ¶ 10. A 1996 report by the FAA's Office of the Inspector General recommended that the FAA "consider having the private sector provide the full range of flight services." Def. Facts ¶ 24; Pl. Opp. Facts at 7. Other reports recommended consolidation but also recommended that the FS function remain within the government. Pl. Opp. Facts at 9–11.

B. The FAIR Act

Between the late 1990s and the early 2000s, the government pushed federal agencies to restructure and outsource any functions that the private sector could provide better and more efficiently. Def. MSJ at 17–18. Congress's 1998 Federal Activities Inventory Reform Act ("FAIR Act") mandated that agencies annually classify all activities performed by government personnel as either commercial or inherently governmental, and submit a list of those that were "not inherently governmental functions." Federal Activities Inventory Reform Act of 1998, Pub. L. No. 105–270 § 2(a)–(b), 112 Stat. 2382 (codified as amended in scattered sections of the United States Code); see also Def. Facts ¶ 31; Def. MSJ at 18. Agency heads were then to review the list and consider contracting with a private source for the listed activities. 112 Stat. 2382 at § 2(d). If the agency head decided that certain activities could be outsourced, he or she was to use a competitive process to select the private contractor. Id. The rules for such a competition are outlined in Office of Management and Budget ("OMB") Circular A–76, and competitions under these rules are called "A–76" studies or competitions. OFFICE OF MGMT. & BUDGET, EXEC. OFFICE OF THE PRESIDENT, CIRCULAR NO. A–76 (REVISED) (2003); Def. MSJ at 19.

To further expand A–76 competitions, President George W. Bush put the "Competitive Sourcing Initiative" on his President's Management Agenda ("PMA") in 2001. Def. Facts ¶ 32. The Initiative required federal agencies to either subject 15% of their commercial work functions to an A–76 process or directly convert 15% of their commercial activity inventory by the end of fiscal year 2003. Id. ¶ 34. These cost comparisons and conversions were to continue after 2003 until eventually 50% of every agency's commercial activity inventory had been covered. Pl. Opp. Facts at 12. The OMB discarded these numeric benchmarks in July 2003. Def. Opp. Facts at 8; Def. MSJ, Ex. 9 at 7–8 [Dkt. 256–10]. As a result, the FAA in 2002 was under pressure to save money and consider functions for possible competitive sourcing. Def. Facts ¶¶ 38–39.

C. Before the A–76 Study

During negotiations in 2002 for the FAA's budget request for fiscal year 2003...