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K.H. v. Secretary of Department of Homeland Security

United States District Court, N.D. California

June 20, 2017

K.H., ET AL., Plaintiffs,


          JON S. TIGAR United States District Judge.

         Before 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.

         I. BACKGROUND

         A. Factual Background

         The 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.

         According 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.

         Defendant 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.

         By 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.

         To 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.

         When 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.

         Plaintiffs 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. Id.

         According 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.[2] 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.

         The 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.

         B. Procedural Background

         Plaintiff 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.

         On 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.


         Summary 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).

         Where 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).

         III. ANALYSIS

         A 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.

         A. Disparate Impact

         To make 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).

         "Discriminatory 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).

         Here, Plaintiffs argue that the closure of six field offices was an "outwardly neutral employment practice" that disproportionally and significantly impacted FAMs aged 40 or older. ...

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