Aliotta v. Bair

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 13, 2010 Decided August 13, 2010

No. 09-5234

BARBARA ALIOTTA, ET AL.,
APPELLANTS

v.

SHEILA C. BAIR, CHAIRMAN, FEDERAL DEPOSIT INSURANCE
CORPORATION,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:05-cv-02325-RMU)

Joshua N. Rose argued the cause for appellants. With
him on the briefs were David L. Rose and Yuval Rubinstein.

Barbara R. Sarshik, Counsel, Federal Deposit
Insurance Corporation, argued the cause for appellee. With
her on the brief were Colleen J. Boles, Assistant General
Counsel, Lawrence H. Richmond, Senior Counsel, and
Jennifer M. Barozie, Senior Attorney. R. Craig Lawrence,
Assistant U.S. Attorney, entered an appearance.
 2
Before: SENTELLE, Chief Judge, GINSBURG and BROWN,
Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: A group of former employees
(class members or Aliotta plaintiffs) of the Federal Deposit
Insurance Corporation (FDIC or the Agency) sued the
Agency, alleging violation of the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. § 633a.1 Specifically,
class members claimed FDIC’s management targeted older
employees in a series of downsizings implemented between
1998 and 2005. The district court granted summary judgment
on all claims in FDIC’s favor, determining—after excluding
the employees who accepted FDIC’s buyout/early retirement
offer from its statistical analysis—that the class members
failed to produce evidence from which a jury could reasonably
conclude that (1) FDIC intentionally treated older employees
less favorably than younger employees, or (2) that a neutral
employment practice fell more harshly on older employees
and could not be justified by business necessity. We agree
and affirm the judgment of the district court.

I

The FDIC is an independent federal agency that insures
federal bank and savings and loan deposits. It also regulates
state-chartered banks, establishes receiverships, and manages
assets of failed banking institutions. FDIC’s workload—
especially the workload of the Division of Resolutions and
1
Section 633a requires that “[a]ll personnel actions affecting
employees or applicants for employment who are at least 40 years
of age . . . in executive agencies . . . shall be made free from any
discrimination based on age.” 29 U.S.C. §633a(a).
 3
Receiverships (DRR)—is highly correlated with the health of
the banking industry: when bank failures increase, FDIC’s
workload increases; when bank failures decrease, FDIC’s
workload declines. See Aliotta v. Bair, 576 F. Supp. 2d 113,
115–16 (D.D.C. 2008).

On August 6, 2004, FDIC Chief Operating Officer John
Bovenzi sent an e-mail to all FDIC employees entitled
“Workforce Planning for the Future.” The memo outlined
certain “preliminary conclusions” related to the “2005
planning and budget formulation process,” evaluating industry
and technological trends, forecasting the need for greater
agility and adaptability by the agency, and stated: “The FDIC
of the future will be a smaller, more flexible agency.”
Bovenzi explained that “all indicators point[ed] to a smaller
FDIC with a somewhat different mix of skills in the future”
and warned that some divisions and offices within the Agency
might reduce overall staffing levels, while others might have
“workload requirements or skill set[] imbalances that warrant
filling selected vacancies.” Two weeks later, DRR Director
Mitchell Glassman sent a follow-up memo to his division’s
employees confirming the Agency’s view that changes in the
banking industry, advances in technology, and workflow
improvements had led to “declining workload and excess
staff” and thus might require “difficult decisions . . . regarding
the size and structure of [the] division.” This communication
was followed by a string of e-mails and memos implementing
cross-training plans, voluntary rotational assignments, and
other staffing changes, forecasting staff reductions of 500 to
600 positions, and predicting that an involuntary Reduction-
in-Force (RIF)2 would still be required.

2
A “reduction-in-force” is an administrative procedure that allows
agencies to eliminate jobs and reassign or terminate employees who
occupied the abolished positions.
 4

In a series of memos in October 2004, FDIC management
informed staff it planned to reduce the DRR workforce by
53%, from 515 to 240 positions. Buyouts would be offered to
all permanent DRR employees (with the exception of a small
group of “Executive Management” employees), as well as to
employees throughout the Agency on a more limited basis.
The offer would include a cash payment equal to 50% of the
employee’s total annual salary, the ability to combine the
buyout with regular or early retirement, and no restrictions on
the employee’s ability to seek employment in another federal
agency. The buyout period would last from November 2004
to May 2, 2005. Director Glassman’s memo also informed
DRR employees they would have the opportunity to apply for
crossover opportunities with the Division of Supervision and
Consumer Protection (DSC) through the Agency’s Corporate
Employee Program (CEP). Lastly, Glassman explained that a
RIF would be implemented during 2005 “to involuntarily
separate any remaining surplus [DRR] employees.”

More than 575 FDIC employees applied for and accepted
the buyout. 132 were DRR employees. Another 73 DRR
employees transferred to other FDIC divisions. Moreover, as
planned, in April 2005, Glassman announced the RIF would
go forward and would be effective September 3, 2005.
Glassman informed DRR employees that, “while the outcome
of the RIF [was] not known, [his] notice [was] intended to
alert [them] to the possibility [they] could be impacted
through the RIF process.” As of June 30, 2005, 312
permanent DRR employees were subject to the RIF. 56.1% of
them were over age 50. Those employees who had resigned
or retired before June 2005 in connection with the buyout
program were not considered in the RIF process. 63 DRR
employees were selected for involuntary termination and
received RIF Notices terminating their employment, effective
 5
September 3, 2005.3 FDIC terminated 53 of those 63
employees; 7 retired in lieu of separation; and 3 voluntarily
resigned after receiving a specific RIF Notice. 233 DRR
employees remained after the RIF.

In fall and winter 2005–06, the employees filed notices
with the Equal Employment Opportunity Commission
(EEOC). Am. Compl. ¶ 4, Aliotta v.Gruenberg, No. 05-02325
(D.D.C. Feb. 8, 2006) (Am. Compl.); see 29 U.S.C. § 633a(d).
On December 5, 2005, they filed their complaint in the district
court alleging FDIC violated 29 U.S.C. § 633a, the portion of
the ADEA applicable to federal employers. See 29 U.S.C. §
633a(c). On July 25, 2006, the district court granted the
employees’ motion for class certification, defining the class as
“[f]ormer or present employees of FDIC’s Division of
Resolution and Receiverships who were born on a date on or
before September 30, 1955 and who, as a result of the 2005
RIF, either accepted a buyout or reduction in grade, or were
terminated from their positions in the DRR.” Aliotta v.
Gruenberg, 237 F.R.D. 4, 13 (D.D.C. 2006).

3
Reductions-in-Force are governed by 5 C.F.R. pt. 351 and FDIC’s
RIF Circular 2100.4. See FDIC Br. at 11. The process requires two
rounds of competition and provides employees who might
otherwise be terminated with certain “bump” and “retreat” rights.
See 5 C.F.R. § 351.701. The process favors veterans, as well as
employees with seniority and job experience within the agency. See
id. §§ 351.501–504. FDIC is also required to notify employees
likely to be affected once a decision is made to conduct a RIF and
must send specific RIF notices to employees selected for a RIF
action. See id. § 351.801(a)(1); Def.’s Mot. Summ. J., Ex. 21,
Aliotta v. Bair, No. 05-02325 (D.D.C. Feb. 25, 2008) (Def.’s Mot.
Summ. J.). The employees do not allege FDIC did not conduct its
2005 RIF in accordance with federal regulations or its own Agency
guidelines.
 6
The parties filed cross-motions for summary judgment in
the district court and submitted expert reports providing
statistical analyses to support their positions. Analyzing only
the 53 involuntary separations, 7 retirements in lieu of
involuntary separation, and 3 resignations in lieu of
involuntary separation, FDIC’s expert, industrial and
organizational psychologist Dr. P.R. Jeanneret, found the
average age of the 63 DRR employees affected by the 2005
RIF was 48.28 years. Def.’s Mot. Summ. J., Ex. 27 at 6
(Jeanneret Report). Only 42.9% of the RIF’d employees were
above the age of 50. Def.’s Mot. Summ. J., Ex. 27-1 at 20
(filed Feb. 26, 2008) (Jeanneret Rebuttal). On December 31,
2004 (before the RIF), 59.1% of permanent DRR employees
were above the age of 50; on September 17, 2005 (after the
RIF), the percentage of above-50 employees had increased
slightly to 59.6%. Jeanneret Report at 17.

In contradistinction to Dr. Jeanneret’s statistical analysis,
class members’ expert, Dr. Lance Seberhagen, included in his
calculation of the “RIF-related” impact all employees affected
by both the 2004–05 buyouts and the 2005 RIF. Def.’s Mot.
Summ. J., Ex. 28 (Seberhagen Report). Dr. Seberhagen
identified a set of “RIF-related separation codes” he believed
captured the group of employees harmed. Id. at 3. The group
included the codes assigned to voluntary retirements, early
retirements, retirements and resignations in lieu of involuntary
separation, resignations, terminations of term appointments,
and involuntary terminations. Id. at 3, 17 tbl.20. Using those
codes, he found that permanent DRR employees above the age
of 50 were separated at 139.8% the rate of under-50 DRR
employees. Id. at 5.

Rejecting Dr. Seberhagen’s analysis, the district court
granted FDIC’s motion for summary judgment and denied
class members’ motion for partial summary judgment.
 7
Aliotta, 576 F. Supp. 2d at 115. The court concluded that
because employees who accepted FDIC’s buyout offers did so
voluntarily, the Agency’s buyout program was not an
“adverse employment action” and thus could not be
considered as part of the employees’ prima facie
discrimination case. Id. at 120–24. Analyzing only the 2005
RIF, the court held class members had failed to adequately
rebut FDIC’s proffered nondiscriminatory justifications for
the RIF. Id. at 124–28. The court concluded both the
disparate treatment and disparate impact claims failed. Class
members filed a motion to alter or amend the judgment, which
the district court denied. Aliotta v. Bair, 623 F. Supp. 2d 73,
75–76 (D.D.C. 2009). This appeal followed.

II

Before proceeding to the merits, we first address FDIC’s
assertion class members waived their right to challenge the
district court’s failure to analyze their claims under the
appropriate “pattern or practice” framework. FDIC insists
class members never claimed before the district court FDIC
engaged in a pattern or practice of discrimination. FDIC Br.
at 22. We conclude class members alleged a pattern or
practice claim in their complaint but may nonetheless have
failed to preserve it at the summary judgment stage.
However, even assuming they did preserve their pattern or
practice claim, summary judgment was properly granted
because the vagaries of the various analytical frameworks
were no longer relevant.

Plaintiffs alleging age discrimination in violation of the
ADEA may seek recovery under both disparate treatment and
disparate impact theories of recovery. See Smith v. City of
 8
Jackson, 544 U.S. 228, 236–40 (2005).4 In a disparate
treatment claim, plaintiffs seek to prove an employer
intentionally treated some people less favorably than others
because of their age. See, e.g., Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 141 (2000) (stating plaintiff’s age
“must have ‘actually played a role in [the employer’s
decisionmaking] process and had a determinative influence on
the outcome’”). By contrast, in a disparate impact claim,
plaintiffs challenge employment practices that are “facially
neutral in their treatment of different groups but that in fact
fall more harshly on one group than another and cannot be
justified by business necessity.” Hazen Paper Co. v. Biggins,
507 U.S. 604, 609 (1993). “‘Proof of discriminatory motive
. . . is not required under [the] disparate-impact theory.’” Id.

4
Although neither this court nor the Supreme Court has addressed
the question whether the ADEA authorizes disparate impact claims
against federal employers, we need not resolve the issue in this case
since we conclude class members have failed to demonstrate any
adverse effect on older employees. See City of Jackson, 544 U.S. at
239–40 (holding only that the ADEA authorizes disparate impact
claims against employers under 29 U.S.C. § 623, a section that does
not apply to federal employers); Koger v. Reno, 98 F.3d 631, 639 &
n.2 (D.C. Cir. 1996) (declining to decide whether disparate impact
analysis applies to age discrimination claims because plaintiffs
failed to establish a prima facie case); see also Aliotta, 576 F. Supp.
2d at 126 n.7 (noting “[m]embers of the D.C. District Court remain
divided on the issue” of whether a plaintiff may allege disparate
impact under the ADEA against federal employers). For the same
reason, we need not resolve whether the “business necessity” test
for rebutting a disparate impact claim under Title VII or the less
strict “reasonable factor other than age” test for rebutting a disparate
impact claim against a private-sector employer under the ADEA,
see City of Jackson, 544 U.S. at 243 (explaining distinction between
the tests), would apply if indeed such a claim may lie against a
federal employer under § 633a.
 9

A. Class Members’ Disparate Treatment Claim

Disparate treatment claims brought under the ADEA may
involve “an isolated incident of discrimination against a single
individual, or . . . allegations of a ‘pattern or practice’ of
discrimination affecting an entire class of individuals.”
Palmer v. Shultz, 815 F.2d 84, 90 (D.C. Cir. 1987). In
International Brotherhood of Teamsters v. United States, 431
U.S. 324, 360–62 (1977), the Supreme Court created a
framework for litigating pattern or practice claims.5 Pattern or
practice cases proceed in two phases. In the initial, or
“liability,” phase of a pattern or practice lawsuit, the analysis
focuses on whether unlawful discrimination has been the
employer’s regular or “systemwide” pattern or practice. Id. at
336. In order to make out a prima facie case, the plaintiffs
must prove “more than the mere occurrence of isolated or
‘accidental’ or sporadic discriminatory acts.” Id. They must
establish, by a preponderance of the evidence, that
discrimination “was the company’s standard operating
procedure[—]the regular rather than the unusual practice.” Id.
In this phase, the plaintiffs need not show each individual
member of the class “was a victim of the employer’s
discriminatory policy,” id. at 360, since “proof of the pattern
or practice supports an inference that any particular
employment decision, during the period in which the
discriminatory policy was in force, was made in pursuit of that
policy,” id. at 362 (explaining it is presumed that as a member
of the class, each plaintiff has been the victim of the
5
In Teamsters, the plaintiffs brought their “pattern or practice”
discrimination claims under Title VII of the Civil Rights Act of
1964. 431 U.S. at 328. Nevertheless, this court has applied the
Teamsters framework to ADEA cases. See, e.g., Schuler v.
PricewaterhouseCoopers, LLP, 514 F.3d 1365, 1370 (D.C. Cir.
2008).
 10
discriminatory conduct). Statistical evidence may suffice to
establish a prima facie case if the disparities in treatment are
significant. See, e.g., Wagner v. Taylor, 836 F.2d 578, 592
(D.C. Cir. 1987); Ledoux v. District of Columbia, 820 F.2d
1293, 1303 (D.C. Cir. 1987).

In their amended complaint, the Aliotta plaintiffs alleged
a persistent pattern or practice of discrimination spanning
almost a decade. See Am. Compl. ¶¶ 56–94. The recitation
included allegations that remarks made by FDIC management
were hostile to older employees as well as allegations that
buyout offers and RIFs in 2002, 2003, and 2004 were
specifically designed to reduce the number of older employees
and that the complete sequence of events showed
discrimination against employees over the age of 50 was the
“regular rather than the unusual” practice at FDIC.
Teamsters, 431 U.S. at 336. It is nonetheless unclear (at least
as to their allegations of disparate treatment) the pattern or
practice claim survives on appeal because plaintiffs cannot
raise on appeal claims they allege in their complaint but
abandon at the summary judgment stage, see Road Sprinkler
Fitters Local Union No. 669 v. Indep. Sprinkler Corp., 10
F.3d 1568 (11th Cir. 1994) (declining to address a claim
alleged in the complaint but not raised at summary judgment);
Self-Directed Placement Corp. v. Control Data Corp., 908
F.2d 462, 466 (9th Cir. 1990) (same); see also Edmond v. U.S.
Postal Serv., 949 F.2d 415, 422 (D.C. Cir. 1991) (stating that
while “[t]here is no bright-line rule to determine whether a
matter has been properly raised in moving papers, . . . when a
plaintiff’s opposition is less than paradigmatic, . . . the
question becomes one of sufficiency, i.e., whether in light of
the policies behind the rule of waiver plaintiff sufficiently
raised the issue below so that waiver should not apply”).
 11
In their motion for partial summary judgment, class
members focus only on the 2004-05 buyout and point to no
policies or other employment decisions targeting or adversely
affecting older employees. See Pls.’ Summ. J. Mem. at 1–4,
Aliotta v. Bair, No. 05-02325 (D.D.C. Feb. 25, 2008). Nor do
they argue there is a material dispute concerning an
intentional pattern or practice of discrimination. More
significantly, FDIC challenged the disparate treatment claim
and argued it should be analyzed under the McDonnell
Douglas framework applicable to individual discrimination
claims, not the Teamsters framework, and class members’
opposition did not dispute the Agency’s position. See Def.’s
Mot. Summ. J. at 22; Pls.’ Opp’n. at 29 (citing Teamsters only
once and for a general proposition applicable to both
individual and pattern or practice claims); see, e.g.,
Muhammad v. Giant Food Inc., 108 F. App’x 757, 764 (4th
Cir. 2004) (explaining a passing reference to pattern or
practice allegations in plaintiffs’ responses to defendant’s
summary judgment motions and a failure even to cite
Teamsters were insufficient to preserve plaintiffs’ arguments
that Teamsters applied to their claims).

The forfeiture debate seems largely beside the point. The
class members’ singular focus on the Teamsters analysis
appears to hinge on a distinction without a difference. Once a
prima facie case is established, the burden shifts to the
employer to rebut the inference of discrimination by showing
the employees’ proof is either inaccurate or insignificant.
Teamsters, 431 U.S. at 360. Failure to rebut the inference
moves a pattern and practice case to the remedial stage where
each class member must show individual harm. Id. at 361–62.
However, as we explain below, class members’ flawed
statistical evidence is fatal to their claims under either
framework since it fails to establish any adverse effect on
older employees. See Segar v. Smith, 738 F.2d 1249, 1274
 12
(D.C. Cir. 1984) (noting plaintiffs’ statistics must “show a
disparity of treatment, eliminate the most common
nondiscriminatory explanations of the disparity, and thus
permit the inference that, absent other explanation, the
disparity more likely than not resulted from illegal
discrimination”).

Under our decision in Brady v. Office of Sergeant at
Arms, 520 F.3d 490, 493 (D.C. Cir. 2008), at the summary
judgment stage, “once [an] employer asserts a legitimate, non-
discriminatory reason [for its challenged decision], the
question whether the employee actually made out a prima
facie case is ‘no longer relevant’ and thus ‘disappear[s]’ and
‘drops out of the picture.’” See id. at 494 (explaining that
once an employer asserts a legitimate, nondiscriminatory
explanation, “the district court need not—and should not—
decide whether the plaintiff actually made out a prima facie
case”); id. (describing the prima facie case at the summary
judgment stage as “a largely unnecessary sideshow”); see also
Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009)
(explaining “‘the question whether the employee made out a
prima facie case under the McDonnell Douglas framework ‘is
almost always irrelevant’ because ‘by the time the district
court considers an employer’s motion for summary judgment
. . . the employer ordinarily will have asserted a legitimate,
nondiscriminatory reason for the challenged decision’”).
Thus, once an employer has submitted admissible evidence of
a legitimate, non-discriminatory reason for its decision, any
distinction between the burden-shifting frameworks becomes
immaterial to the success of a discrimination case. Under
either framework, the only relevant question is “whether [the
plaintiff] produced evidence sufficient for a reasonable jury to
find that the employer’s stated reason was not the actual
reason and that the employer intentionally discriminated
against [the employee].” Brady, 520 F.3d at 495.
 13

Nonetheless, while Brady held that in an individual
discrimination case, an employer’s mere assertion of a
legitimate, nondiscriminatory explanation renders the question
whether the plaintiff made out a prima facie case “almost
always irrelevant,” id. at 493, our decision in Segar v. Smith
requires more from an employer in a pattern or practice case.
See Segar, 738 F.2d at 1269–70 (explaining that because “the
plaintiffs’ initial offer of evidence [in a pattern or practice
case] will have been so strong . . . the bare articulation of a
nondiscriminatory explanation will not suffice to rebut it”).
Under Segar, in a pattern or practice case, “the strength of the
evidence sufficient to meet [an employer’s] rebuttal burden
will typically need to be much higher than the strength of the
evidence sufficient to rebut an individual plaintiff’s low-
threshold McDonnell Douglas showing.” Id. The Segar
court, however, acknowledged that if an employer accused of
a pattern or practice of discrimination satisfies its heightened
rebuttal burden, the plaintiffs’ prima facie case, as under
Brady, becomes irrelevant. See id. at 1273 n.20 (explaining
that “‘[w]here the defendant has done everything that would
be required of him if the plaintiff had properly made out a
prima facie case, whether the plaintiff really did so is no
longer relevant’” since the district court “‘has before it all the
evidence it needs [to make the ultimate determination]’”
(quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 715 (1983))); id. at 1270 n.15 (noting that “class
actions often can be viewed as collapsing the prima facie and
pretext stages of a suit involving an individual plaintiff”); id.
at 1267 (“How far [the] prima facie showing will carry the
plaintiff toward its ultimate burden of persuasion depends on
both the strength of the plaintiffs’ evidence and the nature of
the defendant’s response.”). Because FDIC has done more
than simply assert a nondiscriminatory explanation for the
challenged actions—it also submitted evidence demonstrating
 14
that class members’ statistics, after excluding the voluntary
buyouts, failed to show even an insignificant disparity
between older and younger employees—Segar does not
preclude us from applying the rule set forth in Brady.

In Segar, the court concluded the rebuttal of the
employer, the federal Drug Enforcement Agency (DEA),
failed as a matter of law because DEA submitted no
admissible evidence to support its purported
nondiscriminatory explanation. Id. at 1287–88. Here, FDIC
sought to rebut class members’ prima facie case in two ways.
First, the Agency offered a legitimate, nondiscriminatory
explanation for the RIF: it implemented the RIF to respond to
decreased workload in DRR due to the improved health of the
banking industry and to improve the Agency’s responsiveness
and efficiency. See Def.’s Mot. Summ. J. at 28. Unlike the
employer in Segar, who presented no admissible evidence
supporting its nondiscriminatory justification, FDIC submitted
numerous communications between Agency officials and
employees explaining its nondiscriminatory reasons for the
RIF. See, e.g., E-mail from DRR Director Mitchell Glassman
to DRR Employees (Aug. 19, 2004) (stating “[r]ecord
profitability and capital in the banking industry,” “[i]ndustry
consolidation,” “[e]merging technology,” and “improved
business processes” had led to “a declining workload and
excess staff” and would require some “difficult decisions”
regarding the “size and structure” of DRR); E-mail from
FDIC Chief Operating Officer John Bovenzi to FDIC
Employees (Oct. 26, 2004) (explaining a RIF in certain
divisions would likely be necessary since “staffing levels
[were] not justified by current or projected workloads”).
Class members did not, at the summary judgment stage, and
have not, on appeal, pointed to any evidence refuting FDIC’s
claim the RIF targeted DRR because of the division’s reduced
 15
workload caused by improved conditions in the banking
industry. See Aliotta, 576 F. Supp. 2d at 125.

FDIC’s rebuttal also included an attack on class
members’ statistical methodology. FDIC argued the buyout
employees should not be included in class members’ disparate
impact analysis and submitted reports from its own statistical
expert refuting their methodology, see Jeanneret Report at 6,
24; Jenneret Rebuttal at 9–11. Unlike DEA’s attack on the
plaintiffs’ statistical proof in Segar, 738 F.2d at 1272, FDIC’s
alternative statistical analysis demonstrated class members’
statistics could not support an inference of discrimination. See
Aliotta, 576 F. Supp. 2d at 123 & n.4, 125–26, 127–28
(holding the voluntary buyouts could not comprise any part of
the employees’ case and that, without the buyouts, the
employees could show no adverse impact on older
employees).

FDIC satisfied its rebuttal burden, and class members’
prima facie case is therefore irrelevant. In order for class
members to succeed on their disparate treatment claims, they
must have produced evidence sufficient to demonstrate
FDIC’s nondiscriminatory reason for the RIF was pretext and
that FDIC intentionally discriminated against older workers.
See Brady, 520 F.3d at 494. Neither class members’ statistical
nor their non-statistical evidence is sufficient. See infra
Sections IV, V.

B. Class Members’ Disparate Impact Claim

Class members’ disparate impact claim is easier to parse.
In Segar, we held a class of plaintiffs alleging a pattern or
practice of discrimination may also challenge the disparate
impact of specific employment practices. Segar, 738 F.2d at
1266–67. To establish a prima facie disparate impact claim
 16
under the ADEA, a plaintiff is not required to offer evidence
the employer’s action was the result of discriminatory intent,
see Krodel v. Young, 748 F.2d 701, 709 (D.C. Cir. 1984), but
need only offer statistical evidence of a kind and degree
sufficient to show the employment decision disproportionately
impacts older employees, id.; see also Koger, 98 F.3d at 639.
As we explained in Segar, by challenging the effect of
specific employment practices, plaintiffs alleging disparate
impact, like those in a disparate treatment pattern or practice
case, are alleging the employer’s practices have had a
“systemic adverse effect” on members of the class. See
Moore v. Summers, 113 F. Supp. 2d 5, 19 (D.D.C. 2000)
(noting “‘an important point of convergence’ between
disparate treatment and disparate impact claims exists in class
actions . . . [b]ecause both . . . claims ‘are attacks on the
systemic results of employment practices [and] proof of each
claim will involve a showing of disparity between the
minority and majority groups in an employer’s workforce’”
(quoting Segar, 738 F.2d at 1267)).

In their amended complaint, class members allege the
2005 RIF “had a discriminatory impact against plaintiffs and
other employees over the age of 50.” Am. Compl. ¶ 86. At
the summary judgment stage, they again argued FDIC’s
actions disparately affected older employees and offered
statistical evidence to support their claim. See Pls.’ Opp’n at
9–13. The district court, however, concluded class members’
statistics were invalid and established no disparate impact.
Aliotta, 576 F. Supp. 2d at 126–28. In the alternative, the
district court held FDIC had articulated a reasonable factor
other than age, to wit, the “reduced workload” in DRR, that
the class members failed to rebut. Id. at 127. Class members
unsuccessfully challenged the court’s holding in their motion
to alter or amend the judgment and now continue to defend
their claim of disparate impact on appeal.
 17

III

The foregoing analysis reveals class members may not
have preserved a distinct pattern and practice claim, but they
assert both disparate treatment and disparate impact. Both
class member claims are premised almost entirely upon the
statistical findings of their expert, Dr. Seberhagen. In order
for class members to show a disparate effect on older workers,
they must combine the effects of the involuntary terminations
resulting from the 2005 RIF with the effects of the voluntary
retirements from the 2004–05 buyout offers. But, as the
district court properly concluded, id. at 120–24, class
members cannot include as evidence of discrimination the
statistics of a group of employees who, because they
voluntarily accepted a buyout, suffered no adverse
employment action. Without the inclusion of the voluntary
terminations, class members’ claims of discrimination
collapse. The statistical impact of the involuntary RIF
terminations reveals a disparate effect on younger, not older,
employees, see Jeanneret Rebuttal at 14–16, 19–20 tbls.2, 3 &
4.

Under either a disparate treatment or disparate impact
theory of discrimination, plaintiffs must show they suffered an
adverse employment action. See, e.g., Barnette v. Chertoff,
453 F.3d 513, 515 (D.C. Cir. 2006); see also Baloch v.
Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008) (same).
This court has defined an “adverse employment action” as “a
significant change in employment status, such as hiring,
firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing significant
change in benefits.” Douglas v. Donovan, 559 F.3d 549, 552
(D.C. Cir. 2009). “Thus, not everything that makes an
employee unhappy is an actionable adverse action.” Id.
 18

“‘[R]esignations or retirements are presumed to be
voluntary . . . .’” Veitch v. England, 471 F.3d 124, 134 (D.C.
Cir. 2006) (Rogers, J., concurring); see also Keyes v. District
of Columbia, 372 F.3d 434, 439 (D.C. Cir. 2004); Henn v.
Nat’l Geographic Soc’y, 819 F.2d 824, 828 (7th Cir. 1987).
This includes “buyout” plans. See, e.g., Terban v. Dep’t of
Energy, 216 F.3d 1021, 1023–24 (Fed. Cir. 2000). In certain
cases, the doctrine of constructive discharge enables an
employee to overcome the presumption of voluntariness and
demonstrate she suffered an adverse employment action by
showing the resignation or retirement was, in fact, not
voluntary. See, e.g., Rowell v. BellSouth Corp., 433 F.3d 794,
805 (11th Cir. 2005); Vega v. Kodak Caribbean, Ltd., 3 F.3d
476, 480 (1st Cir. 1993). The test for constructive discharge is
an objective one: whether a reasonable person in the
employee’s position would have felt compelled to resign
under the circumstances. See Bodnar v. Synpol, Inc., 843 F.2d
190, 194 (5th Cir. 1988) (stating constructive discharge claim
“relies on an objective test to evaluate what otherwise appears
to be voluntary conduct by an employee”); Rowell, 433 F.3d
at 803 (describing test). “The ‘voluntariness’ question . . .
turns on such things as: did the person receive information
about what would happen in response to the choice? [W]as the
choice free from fraud or other misconduct? [D]id the person
have an opportunity to say no?” Henn, 819 F.2d at 828
(holding plaintiffs who accepted early retirement buyout could
prevail on ADEA claim only by showing the employer
“manipulated the options so that they were driven to early
retirement not by its attractions but by the terror of the
alternative”); see Bodnar, 843 F.2d at 192–94 (analyzing
allegedly coercive factors in employer’s early retirement offer
and concluding employees had failed to proffer “objective
evidence that working conditions had become so intolerable as
to force [employees’] resignation”). Mere uncertainty due to
 19
the threat of a RIF layoff does not translate into a constructive
discharge. See Adams v. Lucent Techs., Inc., 284 F. App’x
296, 301–02 (6th Cir. 2008) (unpublished table decision)
(holding plaintiffs’ uncertainty regarding the effect of a
potential merger on their jobs did not establish early
retirement offer constituted constructive discharge); Vega, 3
F.3d at 480–81 (noting nothing in the record indicated
refusing early retirement meant employees would be
discharged or subjected to intolerable working conditions).

Class members argue the district court could not consider
the voluntariness of the buyouts—an individual question—
until the remedial phase of their pattern and practice claim and
that even if the question of voluntariness could be addressed
during the liability phase, the court resolved it incorrectly.
The former argument is specious; the district court considered
voluntariness not in determining the remedial issue whether
any individual employee was entitled to compensation, but
rather in determining whether the statistical analysis proffered
by the class members showing a disparate number of older
employees accepted the buyout could “comprise any part of
[their] prima facie case of discrimination.” Aliotta, 576 F.
Supp. 2d at 123–24. A class-wide voluntariness inquiry is
appropriate for that purpose.

That leaves the question of whether FDIC’s buyout offers
were voluntary. Class members argue they were not and thus
constitute an “adverse employment action” on which they
premise liability under the ADEA. Employees’ Br. at 15–17,
53–59. Accordingly, they contend any analysis of the
sufficiency of their proof should include those employees who
accepted the buyout. Id. at 35–38. After reviewing the
Agency’s reorganization charts and seniority lists, class
members say many older DRR employees were convinced
they faced a “near certainty of being terminated in a RIF” if
 20
they did not accept the buyout. Id. at 17. Because the
employees “reasonably believed they were going to lose their
jobs” if they did not accept early retirement, they were
essentially “compelled” to accept the buyout. Id. at 15,
57–58. The employees’ decisions to accept the buyout, class
members argue, were motivated not by the attractiveness of
the offer, but rather by the “terror of the alternative.” Id. at
17. We are not persuaded.

Undoubtedly, the employees who accepted buyout offers
faced a difficult decision: they could leave the Agency early
and receive an incentive payment and benefits, or they could
choose to stay and face the risk of termination in the RIF.
But, senior employees were not faced with “an impermissible
take-it-or-leave-it choice between retirement or discharge,”
see Rowell, 433 F.3d at 805, nor were they otherwise
compelled to accept the buyout.

First, with the possible exception of a few individual
employees who claim the size of the reduction and the
veterans and seniority preferences of their co-workers
guaranteed they would not survive a RIF, see Employees’ Br. at
15–16, employees considering whether to accept the buyout
could do no more than speculate that they might be
terminated. Although a RIF seemed inevitable, see E-mail
from FDIC COO John Bovenzi to FDIC Employees (Oct. 26,
2004) (indicating the “necessary staffing reductions [in DRR]
. . . c[ould not] be accomplished entirely through voluntary
departures”) (Bovenzi E-mail), it was impossible for DRR
employees to know how many employees would be subject to
the RIF. That number was dependent on retirements, transfers
to other divisions within the Agency, and general attrition.
Moreover, it was impossible for employees deciding whether
to leave voluntarily to know exactly who would be RIF’d. As
noted supra, FDIC’s RIF process gives preference to certain
 21
types of employees—for example, veterans and those with
seniority. Without knowing whether certain employees with
those preferences would be subject to the RIF, it was
impossible for employees to calculate their chances of
surviving the RIF—a chance that improved if a greater
number of preference employees accepted the buyout and
dropped out of the competition for positions. Moreover, the
“bump” and “retreat” rights of FDIC employees subject to a
RIF are complex, see 5 C.F.R. § 351.701; Aliotta v. Bair,
Decl. of Pamela K. Mergen, Lead Human Resources
Specialist at FDIC, No. 05-cv-02325 (D.D.C. Feb. 21, 2008);
see also Benjamin Franklin Am. Legion Post No. 66 v. U.S.
Postal Serv., 732 F.2d 945, 946 n.1 (D.C. Cir. 1983) (“The
process by which RIF procedures work is quite complex.”),
making it almost impossible for any individual employee to
know beforehand whether she will be terminated. Class
members’ purported “Hobson’s choice” between retirement
and termination, Employees’ Br. at 54, might never
materialize.

Furthermore, employees were not pressured into
accepting the offer. Cf. James v. Sears, Roebuck & Co., 21
F.3d 989, 992–94 (10th Cir. 1994) (evidence employees were
pressured into accepting buyout and early retirement plan by
employers’ threats to fire them was sufficient to establish
constructive discharge). They were given detailed
information about the terms of the buyout and were allowed
several months to decide whether to accept it, see Bovenzi E-
mail. See, e.g., Bodnar, 843 F.2d at 193–94 (holding fifteen
days to consider early retirement offer was “ample time” for
an employee to consult attorney and examine options).
Employees were not threatened with lower pay or benefits if
they did not accept the buyout, and they had the option of
applying for transfer to other FDIC divisions. In fact, 73 DRR
 22
employees applied for and accepted transfers to other
positions within the Agency before the RIF began.

The district court’s rejection of class members’ statistics
also implies, as suggested by FDIC in the record, that the
statistics were based on a flawed methodology and therefore
not probative of whether the Agency intentionally
discriminated against older employees. As demonstrated by
our discussion above, there are multiple reasons an older
employee presented with a buyout offer of early retirement in
advance of an impending RIF might choose to accept the
offer. The employee might feel she has no choice because
being involuntarily terminated in the RIF is inevitable.
Alternatively, the employee may simply believe the early
retirement offer is such a good deal she voluntarily chooses to
take advantage of the buyout incentives. Dr. Seberhagen’s
statistics, however, do not appear to consider employee
choice. If his statistics do not control for this important
explanatory variable, they tell us nothing about why older
employees took the buyouts, and are therefore not relevant to
determining whether FDIC discriminated against them. See,
e.g., Garcia v. Johanns, 444 F.3d 625, 635 (D.C. Cir. 2006)
(noting appellants’ statistical analysis was “analytically
flawed” because it “did not incorporate key relevant variables
connecting disparate impact to [the employer’s]
decisionmaking criteria”); Segar, 738 F.2d at 1261 (“The
choice of proper explanatory variables determines the validity
of the regression analysis.”); see also Jeanneret Rebuttal at
10–11 (arguing there are “no valid conclusions to be drawn
from Dr. Seberhagen’s work” because his statistics “[do not]
attempt[] to segregate key variables for analysis” and that
because he “lump[ed] all the[] outcomes together and
assess[ed] only the bottom line result,” his analysis “yields no
reliable inferences about the process he was purporting to
study”).
 23

Class members also argue our decision in Schmid v.
Frosch, 680 F.2d 248 (D.C. Cir. 1982) (per curiam), justifies
inclusion of those employees who accepted the buyout in their
statistical analysis. Employees’ Br. at 34–35. They argue that
under Schmid, the group of employees adversely affected by a
RIF includes all employees “hurt” by the RIF. Id. at 35. The
“threat[]” of termination facing employees considering
whether to accept the buyout, they argue, was sufficient
“harm” to constitute an adverse employment action. Id.
Class members thus argue the employees who accepted the
buyout were just as much “victims” of FDIC’s discriminatory
policy as those employees who refused the buyout and
suffered involuntary termination in the RIF.

Class members construe our holding in Schmid far too
broadly. In Schmid, we concluded the group of employees
actually “hurt” by the RIF and thus “probative” of the
plaintiff’s age discrimination claim were those who had
received RIF notices and were either separated or downgraded
as a result. 680 F.2d at 250–51; see also id. at 251 n.8 (noting
the “usefulness [of plaintiff’s statistics] depends on all the
surrounding facts and circumstances”). The employees the
class members seek to include here never received RIF
notices; they left FDIC voluntarily before any RIF notices
were issued. This distinction is not, as class members suggest,
“immaterial.” The statistical analysis in Schmid is therefore
entirely distinguishable.

Accepting an employer’s offer of voluntary early
retirement may often be beneficial to older or more senior
employees. See Henn, 819 F.2d at 826, 828; Smith v. World
Ins. Co., 38 F.3d 1456, 1461 (8th Cir. 1994). An employer
should therefore not be deterred from taking voluntary
measures to reduce its workforce, especially where the need
 24
for involuntary reduction measures depends on the success of
the employer’s efforts to encourage voluntary responses.
Routinely including the statistical impact of voluntary
terminations in the assessment of disparate impact would
discourage employers from offering incentives for voluntary
exits from the workforce. To be sure, where there is evidence
an employer’s voluntary measures are motivated by nothing
more than a desire to rid the company of older employees,
such incentives may become both undesirable and unlawful.
Nonetheless, as we discuss below, class members have put
forward no evidence demonstrating FDIC’s buyout plan was
motivated by discriminatory intent.

IV

Having concluded FDIC’s voluntary buyouts were not
adverse employment actions and thus should not be
considered as part of class members’ case, we analyze only
the independent effect of the 2005 RIF itself and find that,
once the buyouts are excluded, their case effectively collapses.
The remaining statistical evidence supports neither of their
claims.

The average age of those employees separated by the RIF
was 48.28 years. Jeanneret Report at 6. 62% of the RIF’d
employees were under age 50. Jeanneret Rebuttal at 13.
Moreover, the RIF’d population was statistically significantly
younger than the population from which it was drawn. While
56.1% of permanent DRR employees subject to the RIF were
over 50, only 42.9% of those actually RIF’d were 50 or older.
Id. at 14. Between December 2004 (before the RIF) and
December 2005 (after the RIF), the average age of DRR
employees remained constant at 52.10 years of age. Id. at 12;
Jeanneret Report at 16 ex.4, and the average age of the overall
FDIC workforce increased slightly from 46.63 years to 46.93.
 25
Defs.’ Mot. Summ. J., Ex. 23 at 27 tbl.F. Thus, the relevant
statistics do not support the employees’ theory that the RIF
disproportionately affected older employees. If anything, the
evidence establishes exactly the opposite—that the RIF
disproportionately affected younger employees.

V

In addition to their flawed statistical analysis, class
members argue certain statements made by FDIC officials
raise a reasonable inference of discriminatory bias against
older employees. They assert then-Chairman Donald Powell’s
comment made in 2001 or 2002 to a group of employees that
he “want[ed] young people around [him] . . . [because] they
have all the innovative ideas” and a statement made by the
then-Deputy Chairman of the FDIC, Donald Greer, in a 1995
magazine article that he would like to “keep some of the
youngest and brightest people who are moving up in the
ranks” support the inference that FDIC targeted DRR for
reduction in 2004–05 because it had the highest proportion of
older employees among the Agency’s divisions. Employees’
Br. at 47–50. The district court dismissed Chairman Powell’s
statements as unsupportive of class members’ claims because
they did not present any evidence Powell actually made the
alleged statement. Aliotta, 576 F. Supp. 2d at 124–25.6 We
agree with the district court. Class members’ response on
appeal that “Powell did not deny saying it,” Employees’ Br. at
48, does not persuade us otherwise.

6
The district court did not discuss the then-Deputy Chairman’s
alleged statement, but even if class members provided sufficient
evidence he actually made the statement, it is insufficient, on its
own, to establish proof of discriminatory intent. See, e.g., Bevan v.
Honeywell, 118 F.3d 603, 610 (8th Cir. 1997) (noting “stray
remarks of nondecisionmakers . . . are not sufficient . . . , standing
alone, [to] raise an inference of discrimination”).
 26

Lastly, class members contend FDIC’s Corporate
Employee Program demonstrates FDIC’s 2004–05
downsizing efforts were not intended to respond to a reduced
workload but rather to purge the Agency of older DRR
employees and replace them with younger ones. Employees’
Br. at 43–46. The district court rejected class members’
theory, concluding that because the positions created under
the CEP were for workers assuming different responsibilities
in different departments than the employees, the two groups
were “not so similarly situated as to support the proposition
that the FDIC conducted the voluntary buyout, transfers and
RIF as an elaborate ruse to flush the agency of senior staff.”
Aliotta, 576 F. Supp. 2d at 128. Again, the district court got it
exactly right. CEP recruits—the vast majority of whom were
under age 50, see Seberhagen Report at 12 tbl.14 (noting 201
out of 214 new hires in 2005 were under 50)—did receive
some training in DRR functions. But they were hired
specifically to pursue DSC examiner commissions.
Moreover, DRR, in particular, hired only a handful of new
employees during 2005, Seberhagen Report at 13 tbl.16;
Jeanneret Rebuttal at 15, even though it reduced its workforce
of over 500 by more than half, Jeanneret Report at 16. Thus,
although at first glance FDIC’s recruitment of new, young
workers while simultaneously separating others because of its
reduced workload might raise suspicions of discrimination, a
closer analysis reveals no evidence the Agency’s actions were
inspired by improper motives.

VI

For the foregoing reasons, the judgment of the district
court is
Affirmed.