Davis v. Dist. of Columbia

• Decision Date: 07 June 2019
• Docket Number: No. 17-7071,17-7071
• Citation: 925 F.3d 1240
• Parties: Ronda L. DAVIS, et al., Appellants v. DISTRICT OF COLUMBIA, Appellee
• Court: U.S. Court of Appeals — District of Columbia Circuit

925 F.3d 1240

Ronda L. DAVIS, et al., Appellants

v.DISTRICT OF COLUMBIA, Appellee

No. 17-7071

United States Court of Appeals, District of Columbia Circuit.

Argued April 20, 2018

Decided June 7, 2019

Rachel Smith, Student Counsel, argued the cause for appellants. On the briefs were Andrew Mendrala and Aderson B. Francois. Charly Gilfoil, Student Counsel, entered an appearance.

Holly M. Johnson, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellee District of Columbia. With her on the briefs were Karl A. Racine, Attorney General, Loren L. AliKhan, Solicitor General, and Stacy L. Anderson, Acting Deputy Solicitor General at the time the brief was filed. Todd S. Kim, Solicitor General at the time the brief was filed, entered an appearance.

Before: Millett, Pillard and Katsas, Circuit Judges.

Opinion concurring in part and dissenting in part filed by Circuit Judge Katsas.

Pillard, Circuit Judge:

Plaintiffs are 47 former longtime employees, mostly African American, of the District of Columbia (District) Child and Family Services Agency (Agency), many of whom successfully served the Agency for decades. They numbered among the employees terminated as part of a large-scale reduction in force at the Agency following budget cuts. Plaintiffs alleged that their firings were unlawfully discriminatory on the basis of age and race. They have abandoned their age-based claims, but appeal the summary judgment in the Agency’s favor on the race discrimination claims.

We generally affirm the decision of the district court, but reverse and remand on one narrow question: whether the plaintiffs identified a "particular employment practice" susceptible to challenge for its adverse racial impact under Title VII. 42 U.S.C. § 2000e-2(k)(1)(A)(i). On this issue, the District prevailed below on the theory that a reduction in force, or "RIF," is not a particular employment practice. What is at issue here is not a RIF in the abstract, however, but the means by which the Agency implemented it. Plaintiffs challenge the practices of the Agency in selecting for elimination jobs and job categories disproportionately held by African American employees. Nothing in Title VII suggests that the practices an employer uses to effectuate the adverse employment action of layoffs, whether or not dubbed a RIF, are exempt from disparate-impact scrutiny. We accordingly reverse the "particular practice" holding and the accompanying denial of class certification, and remand for further proceedings.

Having decided the case on that threshold question, the district court had yet to address whether plaintiffs’ statistical evidence sufficed to make out a prima facie case of disparate impact, or whether the Agency had business justifications for the layoff criteria it used. We accordingly express no opinion on those issues. We affirm the district court’s decisions with respect to plaintiffs’ challenge to the college degree requirement the Agency added to one job category, and the applicability of estoppel to certain individual plaintiffs’ claims.

I. Background

A. Factual Record

The District of Columbia Child and Family Services Agency provides critical support services to abused and neglected children and struggling families. The Agency’s functions include investigating reports of child abuse and neglect, temporarily removing children from unsafe settings, and securing medical care for affected children and families. As of Fiscal Year (FY) 2009, the Agency employed nearly one thousand people in its six major components: Agency Programs, Community Services, Policy and Planning, Clinical Practice, Agency Management, and Financial Operations.

In the face of significant municipal revenue shortfalls, the District of Columbia City Council decreased the Agency’s operating budget for fiscal years 2010 and 2011. Following the budget cuts, the Agency reduced the number of its full-time employees. Relevant here are the job cuts effected for the Agency’s FY 2011 budget. The District represented, and plaintiffs did not dispute, that the District could make the needed spending cuts by reducing full-time positions by 52—from 892 to 840—although the Agency fired more than twice that many people and then hired several dozen new employees.

All told, the Agency let go 115 employees. Plaintiffs here challenge as racially discriminatory the procedures used to implement that reduction in force. At an agency that was 73.4 percent African American, 93 percent (107 out of 115) of the terminated employees were African American. The Agency has never claimed to have laid off the most expensive employees, nor did it set out to make proportional cuts to each department. And, according to the Agency’s Director, the cuts were not performance based: the Director assured the fired employees that the layoffs "in no way reflect[ ] adversely on your performance of your official duties." Joint App’x (J.A.) 660.

Plaintiffs claim that the Agency instead chose to cut and cull the very job categories most densely occupied by African American employees. The Agency focused its cuts on the Agency Programs Office, the Office of Clinical Practice, and the Office of Community Services, with the Agency Programs Office bearing the brunt. There, the Agency eliminated wholesale two social-worker support positions: Social Worker Associate (SWA), which required a bachelor’s degree, and Social Service Assistant (SSA), which did not. The Agency’s decision to fire everyone in the SSA and SWA job categories resulted in the termination of approximately 70 employees, 67 of whom were African American. And the culling of positions elsewhere at the Agency resulted in layoffs of 45 employees, 40 of whom were African American.

The District claims that the Agency "did not utilize a single uniform criteria, test or requirement" in determining which positions would be eliminated. Def.’s Statement of Undisputed Material Facts (SOF) ¶ 15, J.A. 235. Rather, the District represents that the choices of which jobs to eliminate came about through "realigning functions and implementing new service models," as well as "multiple individual decisions made by the Director working in close consultation with the Chief of Staff, the Deputy Directors in charge of CFSA’s various divisions, and other senior level managers in the Agency’s executive team." Id . ¶¶ 15, 17, J.A. 235.

Immediately following the layoffs, the Agency created a new posting to replace the SSW and SWA roles, Family Support Worker (FSW), which did similar work but required a bachelor’s degree. The Agency sought to hire approximately three dozen people to fill the new FSW spots, and it considered applicants whom it had just discharged as well as outside candidates. According to the District, 44 of the 115 people who lost their jobs applied for a position as an FSW, but only 30 of those held the required bachelor’s degree. The Agency ultimately hired back into the FSW role 18 of the employees whom it had fired.

B. Procedural History

Forty-seven former Agency employees who lost their jobs filed this case as a class action against the District of Columbia; they alleged race and age discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. , and the District of Columbia Human Rights Act, D.C. Code § 2-1402.11. Plaintiffs brought both disparate treatment and disparate impact challenges to (1) the Agency’s choice to respond to budgetary constraints by eliminating two job categories in which African American employees were most concentrated, and by using a putatively individualized and at least partially subjective process to cull the remaining job categories; and (2) the Agency’s imposition of a bachelor’s degree requirement on the new FSW position, the duties of which were a close match with the work the SSAs had long performed successfully without a college degree. The district court granted defendant’s motion to dismiss the disparate treatment claim against the firings, allowing the named plaintiffs to proceed with the companion claim of disparate racial impact, and both the impact and treatment claims against the degree requirement. See Davis v. Dist. of Columbia , 949 F. Supp. 2d 1, 14 (D.D.C. 2013).

The court bifurcated discovery and pretrial motions, limiting the first stage to the "existence and statistical validity of group-based disparities caused by" the practices challenged on disparate-impact grounds, as well as to several procedural matters including administrative exhaustion and class certification. See Scheduling Order, Davis v. District of Columbia , No. 10-1564 (D.D.C. Apr. 4, 2013) (Scheduling Order). The court held that plaintiffs met the administrative exhaustion requirement because two plaintiffs’ timely-filed Equal Employment Opportunity Commission (EEOC) charges put the Agency on notice of the claims and vicariously satisfied the exhaustion requirement for the remaining plaintiffs. Davis v. District of Columbia , 246 F. Supp. 3d 367, 388-89 (D.D.C. 2017). Plaintiffs asserted an absence of evidence of business necessity to support the District’s claims of "agency-wide realignment" and the decision to hire outsiders to the FSW positions, and requested an admission to that effect. J.A. 679. The Agency postponed responding on the ground that plaintiffs sought "information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence relevant to an issue within the scope of the first phase of discovery" under the judge’s scheduling order. Id . Discovery into and motions testing the Agency’s justifications for its layoff choices were for a later stage.

Within the constraints of the bifurcated discovery order, each side retained an expert as to the alleged disparate impact of the challenged practices. The experts framed the issues differently and reached contrary conclusions. Plaintiffs’ expert, Dr. Paige Munro, found that the Agency’s implementation of...