OPINION OF CHARLES R. RICHEY, UNITED STATES DISTRICT JUDGE
Pending before the Court are defendant's motion to dismiss or for summary judgment, plaintiffs' cross motion for summary judgment and defendant's motion to strike. After thoroughly considering the record in this case, the Court holds that defendant's motion to dismiss must be treated as a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and that defendant's motion for summary judgment is denied, and that plaintiffs' cross motion for summary judgment is denied and that defendant's motion to strike is denied.
This case arises out of plaintiffs' allegation that defendant's Career Path Policy ("CPP" or "Policy") violates the Age Discrimination in Employment Act ("ADEA" or "Act"), 29 U.S.C. § 633a. The Policy requires all Postal Inspectors who reach Level 23 to serve five years in one of thirteen major metropolitan areas. Under the CPP, vacancies in the major metropolitan areas are filled in one of three ways. Vacancies are first filled with voluntary lateral reassignments of Level 23 Postal Inspectors from non-major metropolitan areas. Vacancies are then filled with Level 21 Postal Inspectors within the Region and, if necessary, the Nation who nominate themselves for a promotion to a Level 23 Postal Inspector. Any remaining vacancies are finally filled by directed or involuntary transfers of the most senior Level 23 Postal Inspectors. See Defendant's Exhibit 1, Affidavit of A. R. Caggiano, Attachment 1 at 4. The CPP further provides that Postal Inspectors within five years of retirement who have served two years in a major metropolitan area and have relocated within the last two years as a result of reassignments are exempt from directed transfers. Finally, the CPP permits Postal Inspectors who have served five years in a major metropolitan area to transfer to any area they choose.
Plaintiffs' complaints arise from the fact that vacancies not filled by voluntary transfers or self-nomination transfers are filled by involuntary transfers of the most senior Postal Inspectors. As a result of this Policy, senior Postal Inspectors who received directed transfers to major metropolitan areas sought to enjoin their transfers because, among other things, the cost of living in major metropolitan areas is higher than in non-major metropolitan areas. The first challenge was brought by Charles Netherton in 1981. After filing an administrative complaint, Mr. Netherton filed suit in the Middle District of Florida seeking to enjoin his transfer from Orlando, Florida to New York. See Complaint para. 5, Netherton v. United States Postal Service, Civ. No. 86-2291 (filed Sept. 28, 1982) (" Netherton "). The motion to enjoin was denied on October 1, 1982. A motion to dismiss by defendant was also denied and a stay was issued on June 17, 1983. Meanwhile, a number of administrative complaints, including Mr. Netherton's, were being processed. On August 30, 1983, a Final Agency Decision was issued, holding that the CPP did not violate the ADEA. The complainants appealed to the Equal Employment Opportunity Commission ("EEOC").
During the challenges to the CPP brought by the Postal Inspectors in Florida, a second group of Postal Inspectors filed similar administrative complaints. On October 12, 1984, a second Final Agency Decision held that the CPP did not violate the ADEA. That decision was also appealed to the EEOC.
Ultimately the EEOC denied the appeals. Subsequently the stay was lifted in the Netherton case and a similar case, Arnold v. United States Postal Service, Civ. No. 85-2571 (filed Aug. 13, 1985) (" Arnold "), was filed on August 13, 1985, in the District of Columbia. In an effort to consolidate the cases, a motion to transfer was filed by plaintiffs in the Netherton case on August 19, 1985. Defendant opposed the motion to transfer and on September 10, 1985, filed a motion for class certification. The Netherton case was transferred from the Middle District of Florida to this Court on August 8, 1986, and the lawsuits were consolidated on September 16, 1986, because of the common questions of law and fact and the identity of parties.
This consolidated lawsuit, filed by present and former Postal Inspectors, alleges that the Policy had a disparate impact on Postal Inspectors 40 years of age and over and discriminated against them because of their age. Specifically, plaintiffs challenge the directed transfers of the most senior Postal Inspectors as a violation of the ADEA. Plaintiffs contend that the Policy caused directed transfers of senior Postal Inspectors, caused some senior Postal Inspectors to resign and caused other senior Postal Inspectors to voluntarily transfer to major metropolitan areas of their choice to avoid directed transfers to less desirable major metropolitan areas. The Court must now decide the motions before it.
III. DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED MUST BE TREATED AS A MOTION FOR SUMMARY JUDGMENT BECAUSE MATTERS OUTSIDE THE PLEADINGS WERE PRESENTED TO AND WERE CONSIDERED BY THE COURT
If on a motion to dismiss for failure to state a claim upon which relief can be granted matters outside the pleadings are presented to and considered by the Court, the motion must be treated as one for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Fed. R. Civ. Pro. 12(b). Defendant has submitted and the Court has considered with defendant's motion to dismiss affidavits and documentary evidence. Therefore, Rule 12(b) requires the Court to treat the motion to dismiss as a motion for summary judgment pursuant to Rule 56. The Court will first consider defendant's motion for summary judgment. See Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2720 (cross motions for summary judgment should be considered separately). If "there is [a] genuine issue as to any material fact [or defendant is not] entitled to judgment as a matter of law," defendant's motion must be denied. Fed. R. Civ. Pro. 56(c).
IV. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON THE DISPARATE IMPACT ISSUE MUST BE DENIED BECAUSE PLAINTIFFS MAY PROVE A VIOLATION OF THE ADEA UNDER A THEORY OF DISPARATE IMPACT AND THERE IS A GENUINE ISSUE OF MATERIAL FACT AS TO WHETHER THE POLICY HAD A DISPARATE IMPACT ON PLAINTIFFS
Defendant argues that it is entitled to summary judgment on two grounds -- that plaintiffs are not permitted to prove a violation of the ADEA by establishing that the Policy had a disparate impact on plaintiffs and, even if disparate impact analysis is permissible, that the CPP did not have a disparate impact on plaintiffs. For the reasons that follow, the Court holds that plaintiffs may prove a violation of the ADEA by establishing a disparate impact and that there is a genuine issue of material fact as to whether the CPP had a disparate impact on plaintiffs.
A. Because the Remedial Language and Purpose of Title VII and the ADEA Are Identical and the Rationale of Griggs v. Duke Power Co., the Case in Which the Supreme Court Formulated the Disparate Impact Analysis Under Title VII, Mandates the Application of the Disparate Impact Analysis Under the ADEA, This Court Must Hold, As Every Court That Has Addressed the Issue Has Held, That the Disparate Impact Analysis Developed Under Title VII Is Also Applicable Under the ADEA
Plaintiffs complain that the CPP violates the ADEA because it has a disparate impact on Postal Inspectors 40 years of age and over. See Complaint para. 5, Netherton v. United States Postal Service, Civ. No. 86-2291 (filed Sept. 28, 1982); Complaint para. 27, Arnold v. United States Postal Service, Civ. No. 85-2571 (filed Aug. 13, 1985). The final agency decisions, however, held that the disparate impact analysis formulated in Griggs v. Duke Power Co., 401 U.S. 424, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971), a race discrimination case under Title VII, is not applicable to cases brought pursuant to the ADEA. Arnold Complaint, Exhibit 2 at 7-13 & Exhibit 5 at 5-12. This Court disagrees. Because the remedial language and purpose of Title VII and the ADEA are identical and the rationale of Griggs v. Duke Power Co., mandates the application of the disparate impact analysis under the ADEA, this Court agrees with every other court that has addressed the issue that the disparate impact analysis developed under Title VII is applicable to cases brought under the ADEA.
1. The Rationale of Griggs v. Duke Power Company, the Case in Which the Supreme Court Formulated the Disparate Impact Analysis Under Title VII, Mandates the Application of the Disparate Impact Analysis Under the ADEA
Prior to the enactment of Title VII, applicants seeking a job in any department other than the Labor Department of the Duke Power Company had to have a high school diploma and receive a passing grade on two aptitude tests. The result was that blacks were hired only in the Labor Department. The highest paying jobs in the Labor Department paid less than the lowest paying jobs in the other departments. Beginning in 1965, the company also required all employees who desired to transfer out of the Labor Department to have a high school diploma and to pass the two aptitude tests. Although these requirements applied equally to blacks and whites, they adversely affected a disproportionate number of blacks. There was no showing that the company had an invidious intent to discriminate against blacks in adopting these requirements. Nevertheless, the Supreme Court held that the requirements were invalid under Title VII because they had a disparate impact on blacks and were not shown to be related to job performance. See Griggs v. Duke Power Co., 401 U.S. 424, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971).
The Supreme Court in Griggs formulated the disparate impact analysis under section 703(a)(2) of Title VII, which states:
It shall be an unlawful employment practice for an employer . . . to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.
The Supreme Court stated that "the objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees." Griggs, 401 U.S. at 429-30 (emphasis added); see also Connecticut v. Teal, 457 U.S. 440, 447, 73 L. Ed. 2d 130, 102 S. Ct. 2525 (1982) (explaining the basis for the Supreme Court's formulation of the disparate impact analysis in Griggs). The Court concluded that Congress intended that the statute require "the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously. . . . ." Griggs, 401 U.S. at 431 (emphasis added). Thus, "Congress directed the thrust of the Act to the consequences of employment practices, not simply to the motivation" as further evidenced by the fact that Congress placed on the employer the burden of showing that a job requirement has a manifest relationship to the job. Id. at 432 (emphasis in original).
2. Because the Language and Purpose of the ADEA Are Identical to the Language and Purpose of Title VII, the Disparate Impact Analysis Under Title VII Is Applicable to the ADEA
Section 623(a)(2) of the Age Discrimination in Employment Act states that:
It shall be unlawful for an employer to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age . . . .
The language of section 623(a)(2) of the ADEA is identical to the language of section 703(a)(2) of Title VII. Compare Section 703(a)(2) of Title VII with Section 623(a)(2) of the ADEA. The ADEA and Title VII are parallel statutes. See Lorillard v. Pons, 434 U.S. 575, 584, 55 L. Ed. 2d 40, 98 S. Ct. 866 (1978). This Court would have to strain its interpretation of the language in section 623(a)(2) to find that Congress did not intend it to operate in the same manner and to serve the same purposes as section 703(a)(2) of Title VII. Thus, the Court must find that Congress intended that the ADEA require "the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously . . . ." Griggs, 401 U.S. at 431 (emphasis added) (identifying the purpose behind section 703(a)(2) of Title VII); see also Section 621 of the ADEA, Congressional Findings and Purpose (Congress repeatedly stated that the purpose of the statute is to eliminate "arbitrary" age discrimination in employment).
Furthermore, section 623(f)(1) makes it lawful for age to be a job requirement if the employer can establish that it is a bona fide occupational qualification. See, e.g., Western Airlines, Inc. v. Criswell, 472 U.S. 400, 105 S. Ct. 2743, 2753-54, 86 L. Ed. 2d 321 (1985); Tuohy v. Ford Motor Co., 675 F.2d 842, 842-45 (6th Cir. 1982) (burden on employer); Mahoney v. Trabucco, 574 F. Supp. 955, 957-58 (D. Mass. 1983) (same), rev'd on other grounds, 738 F.2d 35 (1st Cir.), cert. denied, 469 U.S. 1036, 105 S. Ct. 513, 83 L. Ed. 2d 403 (1984); Campbell v. Connelie, 542 F. Supp. 275, 278-79 (N.D.N.Y. 1982) (same). Therefore, as the Supreme Court noted in Griggs with respect to section 703(a)(2) of Title VII, this Court finds that "Congress directed the thrust of [the ADEA] to the consequences of employment practices, not simply to the motivation" as evidenced by the fact that Congress placed on the employer the burden of showing that an age requirement is a bona fide occupational qualification. Cf. Griggs, 401 U.S. at 432 (emphasis in original). In short, the relevant parts of Title VII and the ADEA have the same language and purpose, and operate identically. Therefore, the Court must find that proving a violation using the disparate impact analysis must be permitted under the ADEA for the same reasons it is permitted under Title VII.
3. Every Court To Address the Issue Has Applied the Disparate Impact Analysis in Cases Under the ADEA
This Court is not alone in holding that proof of disparate impact may be used to establish a violation of the ADEA. The Second, Eighth and Ninth Circuits and the District Court for the Eastern District of Pennsylvania have expressly held that disparate impact analysis may be used in cases brought under the ADEA. See EEOC v. Borden's Inc., 724 F.2d 1390, 1394-95 (9th Cir. 1984) (the similar language, structure and purpose of Title VII and the ADEA compels the adoption of disparate impact analysis in cases seeking relief under the ADEA); Leftwich v. Harris-Stowe State College, 702 F.2d 686, 690 (8th Cir. 1983) (explaining how to establish a prima facie case under the ADEA using a disparate impact theory); Geller v. Markham, 635 F.2d 1027, 1032 (2nd Cir. 1980) (because the substantive prohibitions of the ADEA were adopted in haec verba from Title VII, the substantive rule permitting proof of disparate impact to establish a claim must also be adopted under the ADEA); EEOC v. Westinghouse Electric Corp., 632 F. Supp. 343, 370 (E.D. Pa. 1986) (following the Second, Eighth and Ninth Circuits); EEOC v. Governor Mifflin School District and Governor Mifflin Education Association, 623 F. Supp. 734, 738-41 (E.D. Pa. 1985) (same); See also A. Ruzicho & L. Jacobs, Litigating Age Discrimination Cases § 2:06 (1986) (Callaghan). In addition, two other circuits, including the District of Columbia Circuit, have implied that the disparate impact theory is available under the ADEA. See Schmid v. Frosch, 220 U.S. App. D.C. 212, 680 F.2d 248, 249-50 (D.C. Cir. 1982) (implicitly approving a disparate impact theory under the ADEA); Allison v. Western Union Telegraph Co., 680 F.2d 1318, 1323 (11th Cir. 1982) (holding that jury instructions adequately distinguished between disparate treatment and disparate impact). In short, every court that has confronted the issue has found that disparate impact analysis is applicable in cases brought under the ADEA. Therefore, based on the similarity between the language and purpose of section 623(a)(2) of the ADEA and section 703(a)(2) of Title VII, and persuasive case authority, the Court holds that a violation of the ADEA may be proven by establishing a disparate impact.
B. Defendant's Motion For Summary Judgment on the Disparate Impact Issue Must Be Denied Because There Is a Genuine Issue of Material Fact as to Whether the Policy Had a Disparate Impact on Plaintiffs
Defendant contends that even if disparate impact analysis may be used under the ADEA, the Policy did not have a disparate impact on plaintiffs. A disparate impact occurs when a facially neutral policy or practice falls more harshly on the protected class than on the unprotected class. See Teal, 457 U.S. at 455-56. Thus, if the CPP has a disproportionate impact or falls more harshly on Postal Inspectors 40 years of age and over than on those under 40 years of age, a disparate impact is established.
Defendant contends that the CPP did not have a disparate impact on plaintiffs. Of the directed transfers between 1981 and 1984, approximately 55% of the transferees were 40 years of age and over, and approximately 45% were under 40 years of age. See United States Postal Service's Motion to Dismiss, or in the Alternative, for Summary Judgment, Statement of Material Facts Not in Dispute paras. 10 & 11. Defendant contends these statistics show that the CPP equally affected Postal Inspectors over and under 40 years of age. Defendant also notes that of the 286 directed and voluntary transfers, approximately 34% of the transferees were 40 years of age and over, and approximately 66% were under 40 years of age. See United States Postal Service's Motion to Dismiss, or in the Alternative, for Summary Judgment, Statement of Material Facts Not in Dispute paras. 10 & 11. Defendant contends that these statistics show that the CPP actually fell more harshly on Postal Inspectors under 40 years of age. Although the accuracy of defendant's statistics is not disputed, the Court finds that the statistics relied on by defendant do not establish that the CPP did not fall more harshly on Postal Inspectors 40 years of age and over. Defendant's statistics only compare the number of Postal Inspectors transferred that were 40 years of age and over to the number of transferees under 40 years of age. Defendant's statistics are inadequate because a disproportionate impact can only be measured in relation to the pool of Postal Inspectors eligible to be transferred. For example, as depicted by the chart below, assume there are 10 inspectors that are 40 years of age and over and 30 inspectors that are under 40 years of age, all eligible to be transferred under the CPP. If 10 inspectors that are 40 years of age and over and 10 inspectors that are under 40 years of age are transferred, exactly 50% of those transferred are 40 years of age and over. In this example, however, the CPP clearly falls more harshly on those 40 years of age and over because 100% of the eligible 40 years of age and over inspectors were transferred versus 33% of the eligible inspectors under 40 years of age. 40+ Under 40 Eligible for Transfer 10 30Transferred 10 10% of Total Transferred 50% 50%% of Eligible Transferred 100% 33%