United States District Court, D. South Carolina, Columbia Division
Richard M. Kennedy, III, Plaintiff,
David J. Shulkin, in his official capacity as Secretary of the U.S. Department of Veterans Affairs, Defendant.
OPINION AND ORDER
Margaret B. Seymour Senior United States District Judge
Richard M. Kennedy, III is a staff anesthesiologist employed
at the William Jennings Bryan Dorn Veterans Affairs Medical
Center (hereinafter “Dorn Medical Center”) in
Columbia, South Carolina. On April 30, 2015, Plaintiff filed
this action against Defendant David J. Shulkin, in his
official capacity as Secretary of the United States
Department of Veterans Affairs (“VA”), alleging
claims under the Age Discrimination in Employment Act
(hereinafter “ADEA”), 29 U.S.C. § 623.
Plaintiff brings this action under the federal-sector
provision of the ADEA, 29 U.S.C. § 633a, which extends
the ADEA to federal employees over the age of
forty. In the court's prior order dated March
29, 2017 (the “March order”), the court concluded
that sovereign immunity has been waived as to disparate
impact claims under the ADEA's federal-sector provision.
ECF No. 81. This matter is now before the court as to
the availability of the reasonable factors other than age
(“RFOA”) affirmative defense to Defendant as a
federal-sector employer. Both parties submitted pretrial
briefs for the court's consideration.
STATEMENT OF THE CASE
detailed recitation of this matter's relevant factual and
procedural background can be found in the court's March
order. ECF No. 81. Summarily, Plaintiff alleges that Dorn
Medical Center has engaged in a pattern of age discrimination
in determining the market pay for anesthesiologists employed
at the Medical Center. ECF No. 102, Amended Complaint.
Plaintiff claims that “although [Dorn Medical
Center's practices and policies are] facially neutral in
their treatment of staff anesthesiologists, their impact
falls more harshly on older staff anesthesiologists,
including [Plaintiff].” Id. at ¶ 39.
Plaintiff seeks damages against Defendant in the form of back
pay, future pay, lost retirement benefits and other benefits,
consequential damages, attorney's fees, and costs.
Id. ¶ 42.
RFOA defense provides that, “[i]t shall not be unlawful
for an employer, employment agency, or labor organization . .
. to take any action otherwise prohibited under subsection
(a)(b)(c), or (e) of this section where age is a bona fide
occupational qualification reasonably necessary to the normal
operation of the particular business, or where the
differentiation is based on reasonable factors other than
age, . . . compliance with such subsections would cause such
employer, or a corporation controlled by such employer, to
violate the laws of the county in which such workplace is
located.” 29 U.S.C. § 623(f)(1). Congress included
the RFOA defense under the ADEA's private-sector
provision, but not in the ADEA's federal-sector
provision. See 29 U.S.C. § 623 (private sector
provision), 29 U.S.C. § 633a (federal sector provision).
The question before the court is whether Defendant as a
federal-sector employer may assert the RFOA defense against
Plaintiff's disparate impact claim under the ADEA
argues that “Congress intended exactly what it
expressed and what it excluded - per the non-incorporation
provision of § 633a(f) - from the statutory language of
the federal-sector provision.” (Plaintiff's
Supplemental Trial Brief at pg. 3). In other words, Plaintiff
asserts that while § 633a has been interpreted to allow
him to bring a disparate impact claim, the statutory language
cannot similarly be construed to incorporate the RFOA
affirmative defense. Plaintiff contends that “[i]f
consequently, there is no defense to the broad prohibition of
age discrimination in federal employment, particularly
regarding discrimination in compensation, that is an issue
for Congress to address.” Id.
argues, as it has throughout this litigation, that the RFOA
defense is related to the issue of subject matter
jurisdiction. (Defendant's Updated Trial Brief p. 3).
Defendant asserts that the absence of the RFOA provision
under the ADEA's federal sector provision is evidence
that Congress never intended for the federal government to be
subject to disparate impact claims. Id. at 4.
Alternatively, Defendant contends, that if the matter
proceeds to trial based on the court's prior
determination that Defendant has waived sovereign immunity,
the federal government should be able to assert the RFOA
defense. Id. at 4-5.
reasons set forth below, the court disagrees with both
the Supreme Court nor the Court of Appeals for the Fourth
Circuit has addressed the issue of whether the RFOA defense
is applicable to the ADEA's federal-sector provision. In
Gomez-Perez v. Potter, 553 U.S. 474 (2008), upon
which the court relied to establish the viability of
disparate impact claims in federal-sector ADEA litigation,
the Supreme Court observed that “the ADEA
federal-sector provision was patterned ‘directly
after' Title VII's federal-sector discrimination
ban.” Id. at 487. The Supreme Court explained
that “like the ADEA's federal-sector provision,
Title VII's federal-sector provision contains a broad
prohibition of ‘discrimination,' rather than a list
of specific prohibited practices.” Id.
(comparing 42 U.S.C. § 2000e-16(a), “personnel
actions affecting federal employees ‘shall be made free
from any discrimination based on race, color, religion, sex,
or national origin, ” with 29 U.S.C. § 633a(a)
“personnel actions affecting federal employees who are
at least 40 years of age ‘shall be made free from any
discrimination based on age'”). Utilizing analogous
cases from Title VII federal-sector discrimination claims,
the Supreme Court recognized the availability of retaliation
claims under § 633a. Likewise in this case, the court
adopted the Magistrate Judge's reliance on Smith v.
City of Jackson, 544 U.S. 228 (2005), noting the
similarities between Title VII and the ADEA to establish the
cognizability of ADEA federal-sector disparate impact claims.
See ECF Nos. 67, 81.
federal-sector provisions of the ADEA have been construed as
self-contained provisions and “shall not be subject to,
or affected by, any provision of this chapter, other than the
provisions of sections 626(d)(3) and 631(b), ” which are
not relevant here. See 29 U.S.C. § 633a(f).
Consequently, the RFOA defense cannot be incorporated into
the federal-sector ADEA claim. However, the
Gomez-Perez analysis compels the conclusion that
affirmative defenses available to the federal government
under Title VII should also be available to the federal
government in ADEA discrimination claims.
court in Figueroa v. Tillerson, 289 F.Supp.3d 212,
220 (D.D.C. 2018), set forth the standard for disparate
impact claims and defenses under Title VII's
federal-sector provision. See also Watson v. Fort Worth
Bank and Trust, 487 U.S. 977, 994-98 (1988) (citing
Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971)).
The Figueroa court explained that “evidence of
discriminatory intent or illicit motive is not required to
make out a claim for disparate impact.” Id. at
220 (citing Segar v. Smith, 738 F.2d 1249, 1266
(D.C. Cir. 1984)). The Figueroa court found that
“a plaintiff must generally ‘demonstrate with
statistical evidence that the [challenged] practice or policy
has an adverse effect on the protected group.”'
Id. (citing Greater New Orleans Fair Hous.
Action Ctr. v. U.S. Dep't of Hous. & Urban Dev.,
639 F.3d 1078, 1086 (D.C. Cir. 2011)). The court further
explained that “if the plaintiff meets that burden,
then the burden shifts to the defendant to ‘demonstrate
that the challenged practice is job related for the position
in question and consistent with business necessity . . .
[s]hould that burden be met, the plaintiff must then
‘demonstrate that an alternative employment practice
could meet the employer's legitimate needs without a
similar discriminatory effect.'” Figueroa,
289 F.Supp.3d at 220; see also Anderson v. Duncan,
20 F.Supp.3d 42 (D.D.C. Sept. 30, 2013) (concluding that
while “the Secretary would not have access to an RFOA
defense, [it] might be able to utilize the business necessity
defense as conceptualized by Wards Cove Packing v.
Atonio, 490 U.S. 642 (1989), i.e., a defense in ...