United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT RE: ECF NO. 76
FILED UNDER SEAL 
TIGAR United States District Judge.
the Court is Defendant Secretary of the Department of
Homeland Security's ("Defendant") motion for
summary judgment. The Court will grant the motion in part,
and deny it in part.
Federal Air Marshal Service ("the Service") is a
federal law enforcement agency within the Transportation
Security Administration ("TSA") whose mission
"is to protect the nation's commercial aviation
system, by detecting, deterring, and defeating hostile acts
targeting U.S. air carriers, airports, passengers and
crews." ECF No. 70 ¶ 2. Before the September 11,
2001 attacks, the Service had only 33 Federal Air Marshals
("FAMs"). ECF No. 70 ¶ 4. After the attacks,
"President George W. Bush ordered the rapid expansion of
the [Service]" and "thousands of FAMs were added to
the ranks." ECF No. 70 ¶ 4. Until 2014, each FAM
worked out of one of the Service's 26 field offices
across the country. ECF No. 70-2 at 5.
to Defendant, FAMs implement the Service's mission by
traveling on flights that the Service deems
"high-risk." When a high-risk flight does not
originate out of a FAM's home office, the FAM first takes
a lower-risk "feeder flight, " which brings the FAM
from her or her duty station to the airport with the
high-risk flight. ECF No. 70 ¶ 8. "The use of
feeder flights is inefficient and reduces the overall amount
of risk that the [Service] is able to cover" in several
ways. ECF No. 70 ¶ 9. First, the use of the feeder
flights lengthens FAMs duty days. "For example, a FAM
stationed in Cleveland, who needed to first fly to New York,
to cover a high risk flight to Paris, would have an
approximately 15-hour duty day." ECF No. 70 ¶ 9.
This "generate[s] undesirable overtime expense" and
can make a FAM "fatigued, and less effective, by the
time he or she is on the critical part of the mission-the
high risk flight." Id. The Service claims that
"[t]he use of feeder flights also carries a
not-insignificant risk that the higher-risk flight will go
uncovered altogether if the feeder flight is delayed or
cancelled and the FAM is unable to make the higher-risk
connection." ECF No. 70 ¶ 10.
argues that in the over fifteen years since the September 11
attacks, which is when most of the Service's field
offices were created, two major factors have led to an
unsustainable increase in the use of feeder flights. First,
"the threats to the commercial aviation industry 
evolved." ECF No. 70 ¶ 5. While domestic flights
were initially the Service's focus, the "threat has
become increasingly international." ECF No. 70 ¶ 5.
The airports that see more international flights therefore
became more important to the Service's mission. Second,
the early 2000s saw a "significant restructuring"
of the U.S. airline industry. ECF No. 70 ¶ 6.
"Major airlines have merged, " changing both
"passenger throughput" in certain airports and
which airports are "hubs." ECF No. 70 ¶ 6.
2013, Defendant claims that a "consensus" had
emerged within the Service that there was a "mismatch
between the location of many FAMs and the offices at which
they were needed for higher criticality flights." ECF
No. 70 ¶ 13. "There was, for example, chronically a
higher number of high-risk flights originating from the
airports served by the FAMS's busiest offices ... than
FAMs available in those offices to cover them. The opposite
was true in the [Service's] least busy offices." ECF
No. 70 ¶ 13. Complicating matters, Congress imposed a
hiring freeze on the Service beginning in September 2011,
"meaning it was unable to replace the FAMs lost through
ordinary attrition with new hires." ECF No. 70 ¶
12. The Service also experienced "declining
budgets" in 2013 and 2014. Id.
address the increasing use of inefficient feeder flights,
then Regional Director of the Service's Field Operations
Division, Eric P. Sarandrea, "was tasked with analyzing
the efficiency of the geographic location of the
[Service's] 26 field offices." ECF No. 70 ¶ 13.
The resulting report, entitled "Reshaping the FAMS
Workforce, " recommended closing six field offices with
"only minimal strategic value" and "that the
FAMs at those offices be reassigned to field offices that
needed additional personnel to cover higher-risk
flights." ECF No. 70 ¶ 16; ECF No. 70-1. On
February 13, 2014, Director of the Service Bob Bray submitted
a memo to TSA Administrator John Pistole recommending that
the Service adopt Sarandrea's Report. ECF No. 70-2. That
same day, Pistole approved the closure of the six offices on
a staggered basis. ECF No. 70 ¶ 20, 29. A week later,
Bray sent an email to staff that contained the following
announcement: "Based on the results of the future
staffing and field office assessment, .., I have made the
decision, with the Administrator's approval, to close six
offices: Cincinnati, Cleveland, Phoenix, Pittsburgh, San
Diego, and Tampa." ECF No. 83-1 at 23. All six offices
are now closed. ECF No. 70 ¶ 20, 29.
the closures occurred, the 287 FAMs "in impacted offices
were given the opportunity to transfer" to one often
field offices that the Service determined "were in need
of additional FAMs." ECF No. 70 ¶ 23. New
assignments were given based on each FAM's ranked
preference and by seniority. ECF No. 70 ¶ 24. 194 of the
FAMs in affected offices were over 40-years old, and of those
194, 51 separated from the Service rather than move to a new
field office. ECF No. 83-1 at 147-52. In 2016, the
Service's hiring freeze was lifted, and it hired 326 new
FAMS. ECF No. 70 ¶ 29. Forty-eight of these new FAMs
were substantially younger than the FAMs who had left during
the closures. ECF No. 83-1 at 158.
argue that, far from being driven by risk-coverage concerns,
the six field office closures were an attempt to drive out
older FAMS and replace them with newer, younger employees to
address the Service's budgetary problems. ECF No. 83 at
6. The closures, Plaintiffs claim, were motivated by age
discrimination and in fact adversely affected older workers.
to Plaintiffs, evidence of age discrimination pervaded the
closure decision- making process. Plaintiffs note that
Sarandrea's Reshaping the FAMS Workforce Report included
information on the age of affected FAMs. The Report states
that 250 of the 287 affected employees were 40 or older, and
in discussing the relocation costs associated with the
closures, estimates that "31 FAMs will retire or resign
from the six affected offices in the next two years."
ECF No. 70-1 at 13. Similarly, Bray's memo notes that an
"estimated 45 employees will be eligible for retirement
or may resign from the six affected offices in the next two
years, " potentially reducing relocation costs. ECF No.
70-2 at 7. The closures were also communicated to FAMs by
Bray and management officials through in-person meetings.
According to two FAMs present at one such meeting, Bray
stated that if the Service lost "a lot of senior guys
over this" it "would hire more guys and they'd
be younger and he'd pay them less." ECF No. 83-1 at
87; ECF No. 83-3 at 2. Bray also responded to questions about
the relocation process. When asked whether medical hardships
would be considered in making the reassignments, Bray
answered "we all have things going on, people get sick,
parents get sick, kids die, you just move on." ECF No.
83-1 at 74-75. Indeed, Plaintiffs assert that the Service
purposefully made the reassignment process "extremely
difficult for the FAMS, " with the goal of increasing
attrition. ECF No. 83 at 11. Not only did FAMs have to uproot
their lives and move to cities with higher costs of living,
they also had difficulty obtaining answers to their questions
about the relocation process. ECF No. 83-1 at 131.
parties dispute the reaction to the closures in Congress and
elsewhere. While Defendant claims that "Congressional
briefings were well received, " ECF No. 70 ¶ 28,
Plaintiff emphasizes letters from members of Congress
criticizing the closures. E.g., ECF No. 83-1 at 36.
K.H. filed suit on behalf himself and all similarly situated
FAMs in the six closed offices on June 18, 2015. ECF No. 1.
The operative Second Amended Complaint was filed on May 11,
2016, and alleges both disparate treatment and disparate
impact claims under the Age Discrimination in Employment Act,
29 U.S.C. §§ 621-34. ECF No. 50. Class notice went
out in August 2016, ECF No. 56, and there are now
approximately 200 party-plaintiffs. ECF No. 61.
February 3, 2017, Defendant, with the permission of the
Court, filed two separate motions for summary judgment: one
related to the core liability issues in the case, ECF No. 69,
and the second related to two Plaintiffs'-F.S.'s and
Scott Kiefner's-individual damages claims, ECF No. 73.
Defendant later filed an amended motion for summary judgment
as to liability, ECF No.76, and the Court terminated the
summary judgment motion relating to individual damages after
F.S. and Scott Kiefner dismissed their claims with prejudice.
ECF No. 88.
judgment is proper when a "movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a). "A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by" citing
to depositions, documents, affidavits, or other materials.
Fed.R.Civ.P. 56(c)(1)(A). A party also may show that such
materials "do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact." Fed.R.Civ.P.
56(c)(1)(B). An issue is "genuine" only if there is
sufficient evidence for a reasonable fact-finder to find for
the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248-49(1986). A fact is
"material" if the fact may affect the outcome of
the case. Id. at 248. "In considering a motion
for summary judgment, the court may not weigh the evidence or
make credibility determinations, and is required to draw all
inferences in a light most favorable to the non-moving
party." Freeman v. Arpaio, 125 F.3d 732, 735
(9th Cir. 1997).
the party moving for summary judgment would bear the burden
of proof at trial, that party bears the initial burden of
producing evidence that would entitle it to a directed
verdict if uncontroverted at trial. See C.A.R. Transp.
Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480
(9th Cir. 2000). Where the party moving for summary judgment
would not bear the burden of proof at trial, that party bears
the initial burden of either producing evidence that negates
an essential element of the non-moving party's claim, or
showing that the non-moving party does not have enough
evidence of an essential element to carry its ultimate burden
of persuasion at trial. If the moving party satisfies its
initial burden of production, then the non-moving party must
produce admissible evidence to show that a genuine issue of
material fact exists. See Nissan Fire & Marine Ins.
Co. v. Fritz Cos.. 210 F.3d 1099, 1102-03 (9th Cir.
2000). "A mere scintilla of evidence will not be
sufficient to defeat a properly supported motion for summary
judgment; rather, the nonmoving party must introduce some
significant probative evidence tending to support the
complaint." Summers v. Teichert & Son.
Inc.. 127 F.3d 1150, 1152 (9th Cir. 1997) (citation and
internal quotation marks omitted). If the non-moving party
fails to make this showing, the moving party is entitled to
summary judgment. Celotex Corp. v. Catrett, 477 U.S.
317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
plaintiff alleging discrimination under the ADEA may proceed
under either of two theories: disparate treatment or
disparate impact. Palmer v. United States, 794 F.2d
534, 536-37 (9th Cir. 1986). Here, Plaintiffs argue both
theories and the Court addresses each in turn.
out a prima facie case of discrimination under the disparate
impact theory the plaintiff generally must show: "(1)
the occurrence of certain outwardly neutral employment
practices, and (2) a significantly adverse or
disproportionate impact on persons of a particular [age]
produced by the employer's facially neutral acts or
practices." Spaulding v. University of
Washington, 740 F.2d 686, 705 (9th Cir.), overruled on
other grounds by Atonio v. Wards Cove Packing Co..
810 F.2d 1477, 1482 (9th Cir. 1987) (en banc).
motive need not be shown under the disparate impact
theory." Palmer, 794 F.2d at 536-37 (9th Cir.
1986). The disparate impact theory's requirements,
however, "may be more exacting" than those for
disparate treatment. Id. In particular, "[a]
disparate impact plaintiff must not merely prove
circumstances raising an inference of discriminatory impact;
he must prove the discriminatory impact at issue."
Id. (citing Moore v. Hughes Helicopters,
Inc., 708 F.2d 475, 482 (9th Cir. 1983).
Plaintiffs argue that the closure of six field offices was an
"outwardly neutral employment practice" that
disproportionally and significantly impacted FAMs aged 40 or