United States Court of Appeals, District of Columbia Circuit
Ronda L. Davis, et al., Appellants
District of Columbia, Appellee
April 20, 2018
from the United States District Court for the District of
Columbia (No. 1:10-cv-01564)
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.
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.
PILLARD, CIRCUIT JUDGE.
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
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
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.
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.
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.
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.
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.
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.
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
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
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.
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 the layoffs resulted in a termination rate
of 15.5% for African Americans, in contrast to a 5.6% rate
for non-African Americans. The racial disparities were even
more dramatic, according to Dr. Munro, once she analyzed a
new dataset provided by the District, which included more
focused and detailed demographic information about the
Agency's workforce: The effective termination rate jumped
from 277% greater for African Americans than non-African
Americans to 444% greater for African Americans as compared
District's expert, Dr. Stephen Bronars, found no
disproportionate adverse racial impact. He faulted Dr. Munro
for calculating the racial disparities in termination rates
across the entire agency; according to Dr. Bronars, Dr.
Munro's data unreasonably assumed that all positions at
the Agency were at risk of cuts. The Agency described itself
as conducting an "agency-wide" reduction in force,
Defendant's Answer to Third Amended Complaint ¶ 3,
J.A. 159, but as Dr. Bronars saw it not all employees were at
equal risk of losing their jobs because the District had
informed him that it took into account "financial
concerns, the reorganization concerns, the realignment of
goals, different kind of service models. . . ." Bronars
Dep. 183-84, J.A. 820. Instead of assessing the impact of the
entire package of layoffs, Dr. Bronars characterized the
District's action as "7 different sets of layoff
decisions," one for each job category that experienced
cuts. J.A. 363. He then separately examined the racial impact
of the terminations within each affected position.
Bronars concluded that the Agency's wholesale elimination
of the SSA and SWA positions did "not contribute to the
statistical significance calculation for adverse impact"
because the District terminated every employee in those job
categories. J.A. 412. As a consequence, he reasoned, those
cuts involved no "excess" termination of African
American employees. J.A. 367, 412. Dr. Bronars'
statistical significance calculation also excluded any
layoffs from job categories occupied exclusively by African
American employees, again reasoning that there could be no
"excess" termination of African Americans from
those categories. J.A. 367. Setting aside all of those
layoffs of African American employees, Dr. Bronars applied
his job-category-specific methodology to find no
statistically significant racial impact resulting from cuts
within the remaining categories.
the close of phase I discovery, plaintiffs moved for class
certification and the District moved for summary judgment.
The district court granted summary judgment for the Agency on
plaintiffs' disparate impact challenge, the Agency
contended that plaintiffs' expert evidence of statistical
disparity was inadequate. See Def.'s Memo in
Supp. of Motion for Summ. J. 2, 20-23, J.A. 207, 225-28.
Alternatively, the Agency argued that the Agency's
termination decisions were not subject to Title VII scrutiny
for disparate racial impact: The Agency contended that its
decisions were not actionable because they involved no
objective "test or requirement," but only a series
of subjective, contextual judgments made in "multiple
individual decisions by the agency leadership" that it
claimed cannot be challenged on a disparate-impact theory.
Id. at 19-20, J.A. 224-25 (contending that
"subjective decisions" are not practices subject to
challenge for their disparate impact (quoting Leichihman
v. Pickwick Int'l, 814 F.2d 1263, 1269 n.5 (8th Cir.
1987), abrogated by Watson v. Fort Worth Bank &
Tr., 487 U.S. 977, 989-91 (1988) (plurality opinion),
and citing Combs v. Grand Victoria Casino &
Resort, No. 1:08-CV- 00414-RLY-JMS, 2008 WL 4452460, at
*3 (S.D. Ind. Sept. 30, 2008))).
addition to dwelling on the (erroneous) proposition that only
objective employment criteria are subject to disparate impact
scrutiny, see Watson, 487 U.S. at 989-91, both
parties got inexplicably sidetracked into arguing over
whether a "facially neutral" employment policy had
been identified, see J.A. 224-25 (Agency: "The
RIF Was Not A Facially Neutral Employment Policy");
id. at 592-93 (Plaintiffs: "The RIF was a
facially neutral policy"); see also Davis, 246
F.Supp.3d at 395. The point of doctrinal references to
"facially neutral employment practices" is not to
make facial neutrality an element of proof in
disparate-impact cases, but merely to make clear that-even
though they may lack the overtly or intentionally
discriminatory character of practices constituting disparate
treatment-facially neutral practices, too, may be challenged
under Title VII. Watson, 487 U.S. at 988;
Int'l Broth. of Teamsters v. United States, 431
U.S. 324, 349 (1977) ("[T]he Court has repeatedly held
that a prima facie Title VII violation may be established by
policies or practices that are neutral on their face and in
intent but that nonetheless discriminate in effect against a
particular group."). Indeed, nothing prevents a
plaintiff from challenging a practice as a Title VII
violation because it is facially discriminatory and,
alternatively, has a disparate impact.
reaching the statistical evidence in the competing expert
reports, the district court granted summary judgment to the
Agency on the threshold ground that "plaintiffs have
failed to identify a specific employment practice"
actionable under a disparate-impact theory. Davis,
246 F.Supp.3d at 394. As to plaintiffs' challenges to the
FSW's bachelor's degree requirement, the district
court granted judgment to the Agency because plaintiffs had
failed to present evidence regarding the qualified labor
pool. Id. at 399-401. Because plaintiffs chose to
rest their disparate treatment claim exclusively on an
inference of discriminatory purpose arising from statistical
disparity, and no such disparity could be shown in the
absence of evidence regarding the qualified labor pool, the
court granted summary judgment on that claim as well.
court also ruled in favor of the District on issues
pertaining only to certain plaintiffs. It held that two
plaintiffs lacked standing to challenge the FSW's
bachelor's degree requirement because they hold such
degrees, id. at 387-88, and that two plaintiffs-one
of those with a bachelor's degree, plus a third-were
judicially estopped from participating in this lawsuit by
their failures to disclose their discrimination claims among
their assets in their personal bankruptcy cases, id.
at 384-87. In the absence of any surviving claim, the
district court denied as moot plaintiffs' motion for
class certification. Id. at 401.
appealed. They limit their appeal to the district court's
grant of summary judgment on the race discrimination class
claims, plus the individual standing and estoppel issues.