Davis v. Dist. of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 20, 2018 Decided June 7, 2019

No. 17-7071

RONDA L. DAVIS, ET AL.,

APPELLANTS

v.

DISTRICT OF COLUMBIA,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:10-cv-01564)

Rachel Smith, Student Counsel, argued the cause for

appellants. On the briefs were Andrew Mendrala and Aderson

B. Francois. Charly Gilfoil, Student Counsel, entered an

appearance.

Holly M. Johnson, Assistant Attorney General, Office of

the Attorney General for the District of Columbia, argued the

cause for appellee District of Columbia. With her on the briefs

were Karl A. Racine, Attorney General, Loren L. AliKhan,

Solicitor General, and Stacy L. Anderson, Acting Deputy

Solicitor General at the time the brief was filed. Todd S. Kim,

Solicitor General at the time the brief was filed, entered an

appearance.

2

Before: MILLETT, PILLARD and KATSAS, Circuit Judges.

Opinion for the Court filed by Circuit Judge PILLARD.

Opinion concurring in part and dissenting in part filed by

Circuit Judge KATSAS.

PILLARD, Circuit Judge: Plaintiffs are 47 former

longtime employees, mostly African American, of the District

of Columbia (District) Child and Family Services Agency

(Agency), many of whom successfully served the Agency for

decades. They numbered among the employees terminated as

part of a large-scale reduction in force at the Agency following

budget cuts. Plaintiffs alleged that their firings were

unlawfully discriminatory on the basis of age and race. They

have abandoned their age-based claims, but appeal the

summary judgment in the Agency’s favor on the race

discrimination claims.

We generally affirm the decision of the district court, but

reverse and remand on one narrow question: whether the

plaintiffs identified a “particular employment practice”

susceptible to challenge for its adverse racial impact under

Title VII. 42 U.S.C. § 2000e-2(k)(1)(A)(i). On this issue, the

District prevailed below on the theory that a reduction in force,

or “RIF,” is not a particular employment practice. What is at

issue here is not a RIF in the abstract, however, but the means

by which the Agency implemented it. Plaintiffs challenge the

practices of the Agency in selecting for elimination jobs and

job categories disproportionately held by African American

employees. Nothing in Title VII suggests that the practices an

employer uses to effectuate the adverse employment action of

layoffs, whether or not dubbed a RIF, are exempt from

disparate-impact scrutiny. We accordingly reverse the

3

“particular practice” holding and the accompanying denial of

class certification, and remand for further proceedings.

Having decided the case on that threshold question, the

district court had yet to address whether plaintiffs’ statistical

evidence sufficed to make out a prima facie case of disparate

impact, or whether the Agency had business justifications for

the layoff criteria it used. We accordingly express no opinion

on those issues. We affirm the district court’s decisions with

respect to plaintiffs’ challenge to the college degree

requirement the Agency added to one job category, and the

applicability of estoppel to certain individual plaintiffs’ claims.

I. Background

A. Factual Record

The District of Columbia Child and Family Services

Agency provides critical support services to abused and

neglected children and struggling families. The Agency’s

functions include investigating reports of child abuse and

neglect, temporarily removing children from unsafe settings,

and securing medical care for affected children and families.

As of Fiscal Year (FY) 2009, the Agency employed nearly one

thousand people in its six major components: Agency

Programs, Community Services, Policy and Planning, Clinical

Practice, Agency Management, and Financial Operations.

In the face of significant municipal revenue shortfalls, the

District of Columbia City Council decreased the Agency’s

operating budget for fiscal years 2010 and 2011. Following the

budget cuts, the Agency reduced the number of its full-time

employees. Relevant here are the job cuts effected for the

Agency’s FY 2011 budget. The District represented, and

plaintiffs did not dispute, that the District could make the

4

needed spending cuts by reducing full-time positions by 52—

from 892 to 840—although the Agency fired more than twice

that many people and then hired several dozen new employees.

All told, the Agency let go 115 employees. Plaintiffs here

challenge as racially discriminatory the procedures used to

implement that reduction in force. At an agency that was 73.4

percent African American, 93 percent (107 out of 115) of the

terminated employees were African American. The Agency

has never claimed to have laid off the most expensive

employees, nor did it set out to make proportional cuts to each

department. And, according to the Agency’s Director, the cuts

were not performance based: the Director assured the fired

employees that the layoffs “in no way reflect[] adversely on

your performance of your official duties.” Joint App’x (J.A.)

660.

Plaintiffs claim that the Agency instead chose to cut and

cull the very job categories most densely occupied by African

American employees. The Agency focused its cuts on the

Agency Programs Office, the Office of Clinical Practice, and

the Office of Community Services, with the Agency Programs

Office bearing the brunt. There, the Agency eliminated

wholesale two social-worker support positions: Social Worker

Associate (SWA), which required a bachelor’s degree, and

Social Service Assistant (SSA), which did not. The Agency’s

decision to fire everyone in the SSA and SWA job categories

resulted in the termination of approximately 70 employees, 67

of whom were African American. And the culling of positions

elsewhere at the Agency resulted in layoffs of 45 employees,

40 of whom were African American.

The District claims that the Agency “did not utilize a

single uniform criteria, test or requirement” in determining

which positions would be eliminated. Def.’s Statement of

5

Undisputed Material Facts (SOF) ¶ 15, J.A. 235. Rather, the

District represents that the choices of which jobs to eliminate

came about through “realigning functions and implementing

new service models,” as well as “multiple individual decisions

made by the Director working in close consultation with the

Chief of Staff, the Deputy Directors in charge of CFSA’s

various divisions, and other senior level managers in the

Agency’s executive team.” Id. ¶¶ 15, 17, J.A. 235.

Immediately following the layoffs, the Agency created a

new posting to replace the SSW and SWA roles, Family

Support Worker (FSW), which did similar work but required a

bachelor’s degree. The Agency sought to hire approximately

three dozen people to fill the new FSW spots, and it considered

applicants whom it had just discharged as well as outside

candidates. According to the District, 44 of the 115 people who

lost their jobs applied for a position as an FSW, but only 30 of

those held the required bachelor’s degree. The Agency

ultimately hired back into the FSW role 18 of the employees

whom it had fired.

B. Procedural History

Forty-seven former Agency employees who lost their jobs

filed this case as a class action against the District of Columbia;

they alleged race and age discrimination under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the

District of Columbia Human Rights Act, D.C. Code § 2-

1402.11. Plaintiffs brought both disparate treatment and

disparate impact challenges to (1) the Agency’s choice to

respond to budgetary constraints by eliminating two job

categories in which African American employees were most

concentrated, and by using a putatively individualized and at

least partially subjective process to cull the remaining job

categories; and (2) the Agency’s imposition of a bachelor’s

6

degree requirement on the new FSW position, the duties of

which were a close match with the work the SSAs had long

performed successfully without a college degree. The district

court granted defendant’s motion to dismiss the disparate

treatment claim against the firings, allowing the named

plaintiffs to proceed with the companion claim of disparate

racial impact, and both the impact and treatment claims against

the degree requirement. See Davis v. Dist. of Columbia, 949 F.

Supp. 2d 1, 14 (D.D.C. 2013).

The court bifurcated discovery and pretrial motions,

limiting the first stage to the “existence and statistical validity

of group-based disparities caused by” the practices challenged

on disparate-impact grounds, as well as to several procedural

matters including administrative exhaustion and class

certification. See Scheduling Order, Davis v. District of

Columbia, No. 10-1564 (D.D.C. Apr. 4, 2013) (Scheduling

Order). The court held that plaintiffs met the administrative

exhaustion requirement because two plaintiffs’ timely-filed

Equal Employment Opportunity Commission (EEOC) charges

put the Agency on notice of the claims and vicariously satisfied

the exhaustion requirement for the remaining plaintiffs. Davis

v. District of Columbia, 246 F. Supp. 3d 367, 388-89 (D.D.C.

2017). Plaintiffs asserted an absence of evidence of business

necessity to support the District’s claims of “agency-wide

realignment” and the decision to hire outsiders to the FSW

positions, and requested an admission to that effect. J.A. 679.

The Agency postponed responding on the ground that plaintiffs

sought “information that is neither relevant nor reasonably

calculated to lead to the discovery of admissible evidence

relevant to an issue within the scope of the first phase of

discovery” under the judge’s scheduling order. Id. Discovery

into and motions testing the Agency’s justifications for its

layoff choices were for a later stage.

7

Within the constraints of the bifurcated discovery order,

each side retained an expert as to the alleged disparate impact

of the challenged practices. The experts framed the issues

differently and reached contrary conclusions. Plaintiffs’

expert, Dr. Paige Munro, found that the Agency’s

implementation of the layoffs resulted in a termination rate of

15.5% for African Americans, in contrast to a 5.6% rate for

non-African Americans. The racial disparities were even more

dramatic, according to Dr. Munro, once she analyzed a new

dataset provided by the District, which included more focused

and detailed demographic information about the Agency’s

workforce: The effective termination rate jumped from 277%

greater for African Americans than non-African Americans to

444% greater for African Americans as compared to

Caucasians.

The District’s expert, Dr. Stephen Bronars, found no

disproportionate adverse racial impact. He faulted Dr. Munro

for calculating the racial disparities in termination rates across

the entire agency; according to Dr. Bronars, Dr. Munro’s data

unreasonably assumed that all positions at the Agency were at

risk of cuts. The Agency described itself as conducting an

“agency-wide” reduction in force, Defendant’s Answer to

Third Amended Complaint ¶ 3, J.A. 159, but as Dr. Bronars

saw it not all employees were at equal risk of losing their jobs

because the District had informed him that it took into account

“financial concerns, the reorganization concerns, the

realignment of goals, different kind of service models. . . .”

Bronars Dep. 183-84, J.A. 820. Instead of assessing the impact

of the entire package of layoffs, Dr. Bronars characterized the

District’s action as “7 different sets of layoff decisions,” one

for each job category that experienced cuts. J.A. 363. He then

separately examined the racial impact of the terminations

within each affected position.

8

Dr. Bronars concluded that the Agency’s wholesale

elimination of the SSA and SWA positions did “not contribute

to the statistical significance calculation for adverse impact”

because the District terminated every employee in those job

categories. J.A. 412. As a consequence, he reasoned, those

cuts involved no “excess” termination of African American

employees. J.A. 367, 412. Dr. Bronars’ statistical significance

calculation also excluded any layoffs from job categories

occupied exclusively by African American employees, again

reasoning that there could be no “excess” termination of

African Americans from those categories. J.A. 367. Setting

aside all of those layoffs of African American employees, Dr.

Bronars applied his job-category-specific methodology to find

no statistically significant racial impact resulting from cuts

within the remaining categories.

Following the close of phase I discovery, plaintiffs moved

for class certification and the District moved for summary

judgment. The district court granted summary judgment for

the Agency on all issues.

Regarding plaintiffs’ disparate impact challenge, the

Agency contended that plaintiffs’ expert evidence of statistical

disparity was inadequate. See Def.’s Memo in Supp. of Motion

for Summ. J. 2, 20-23, J.A. 207, 225-28. Alternatively, the

Agency argued that the Agency’s termination decisions were

not subject to Title VII scrutiny for disparate racial impact: The

Agency contended that its decisions were not actionable

because they involved no objective “test or requirement,” but

only a series of subjective, contextual judgments made in

“multiple individual decisions by the agency leadership” that it

claimed cannot be challenged on a disparate-impact theory. Id.

at 19-20, J.A. 224-25 (contending that “subjective decisions”

are not practices subject to challenge for their disparate impact

(quoting Leichihman v. Pickwick Int’l, 814 F.2d 1263, 1269 n.5

9

(8th Cir. 1987), abrogated by Watson v. Fort Worth Bank &

Tr., 487 U.S. 977, 989-91 (1988) (plurality opinion), and citing

Combs v. Grand Victoria Casino & Resort, No. 1:08–CV–

00414–RLY–JMS, 2008 WL 4452460, at *3 (S.D. Ind. Sept.

30, 2008))).

In addition to dwelling on the (erroneous) proposition that

only objective employment criteria are subject to disparate

impact scrutiny, see Watson, 487 U.S. at 989-91, both parties

got inexplicably sidetracked into arguing over whether a

“facially neutral” employment policy had been identified, see

J.A. 224-25 (Agency: “The RIF Was Not A Facially Neutral

Employment Policy”); id. at 592-93 (Plaintiffs: “The RIF was

a facially neutral policy”); see also Davis, 246 F. Supp. 3d at

395. The point of doctrinal references to “facially neutral

employment practices” is not to make facial neutrality an

element of proof in disparate-impact cases, but merely to make

clear that—even though they may lack the overtly or

intentionally discriminatory character of practices constituting

disparate treatment—facially neutral practices, too, may be

challenged under Title VII. Watson, 487 U.S. at 988; Int’l

Broth. of Teamsters v. United States, 431 U.S. 324, 349 (1977)

(“[T]he Court has repeatedly held that a prima facie Title VII

violation may be established by policies or practices that are

neutral on their face and in intent but that nonetheless

discriminate in effect against a particular group.”). Indeed,

nothing prevents a plaintiff from challenging a practice as a

Title VII violation because it is facially discriminatory and,

alternatively, has a disparate impact.

Without reaching the statistical evidence in the competing

expert reports, the district court granted summary judgment to

the Agency on the threshold ground that “plaintiffs have failed

to identify a specific employment practice” actionable under a

disparate-impact theory. Davis, 246 F. Supp. 3d at 394. As to

10

plaintiffs’ challenges to the FSW’s bachelor’s degree

requirement, the district court granted judgment to the Agency

because plaintiffs had failed to present evidence regarding the

qualified labor pool. Id. at 399-401. Because plaintiffs chose

to rest their disparate treatment claim exclusively on an

inference of discriminatory purpose arising from statistical

disparity, and no such disparity could be shown in the absence

of evidence regarding the qualified labor pool, the court

granted summary judgment on that claim as well. Id.

The court also ruled in favor of the District on issues

pertaining only to certain plaintiffs. It held that two plaintiffs

lacked standing to challenge the FSW’s bachelor’s degree

requirement because they hold such degrees, id. at 387-88, and

that two plaintiffs—one of those with a bachelor’s degree, plus

a third—were judicially estopped from participating in this

lawsuit by their failures to disclose their discrimination claims

among their assets in their personal bankruptcy cases, id. at

384-87. In the absence of any surviving claim, the district court

denied as moot plaintiffs’ motion for class certification. Id. at

401.

Plaintiffs appealed. They limit their appeal to the district

court’s grant of summary judgment on the race discrimination

class claims, plus the individual standing and estoppel issues.

11

II. Analysis

Our review of the district court’s grant of summary

judgment is de novo. Aka v. Wash. Hosp. Ctr., 156 F.3d 1284,

1288 (D.C. Cir. 1998) (en banc). Summary judgment is

warranted where 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). That is, a movant is entitled to summary

judgment when, drawing all inferences in favor of the non-

movant, a reasonable jury could not return a verdict in the non-

movant’s favor. Celotex Corp. v. Catrett, 477 U.S. 317, 326-

27 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,

251-52 (1986).

Title VII of the Civil Rights Act makes it unlawful for an

employer “to fail or refuse to hire or to discharge any individual

. . . because of such individual’s race.” 42 U.S.C. § 2000e-

2(a)(1). The statute bars “intentional discrimination and

artificial, arbitrary, or unnecessary barriers” that stand in the

way of “equal opportunity” without regard to race. Segar v.

Smith, 738 F.2d 1249, 1258 (D.C. Cir. 1984). Thus, a plaintiff

may establish racial discrimination in violation of Title VII by

proving either that the employer acted with a discriminatory

motive (a “disparate treatment” claim), or that its action was

the result of a process that, while apparently “fair in form,” was

“discriminatory in operation” (a “disparate impact” claim).

Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971); see

Anderson v. Zubieta, 180 F.3d 329, 338 (D.C. Cir. 1999). As

the parties recognized below, the District of Columbia Human

Rights Act tracks Title VII in all respects relevant to this case.

See Davis, 246 F. Supp. 3d at 393-94. We therefore treat

plaintiffs’ claims under District of Columbia law as

coextensive with their federal claims.

12

We first address plaintiffs’ claim that the particular

practices by which the District carried out its reduction in force

had a racially disparate impact in violation of Title VII. We

then turn to their challenge to the degree requirement attached

to the new FSW position. Finally, we address the district

court’s dismissal of three individual plaintiffs’ claims.

A. Identification of Particular Practices Subject to

Disparate Impact Analysis

The district court held that plaintiffs failed at the summary

judgment stage to make out a prima facie case of disparate

impact under Title VII on the ground that a RIF is not a

“particular employment practice” under Title VII. 42 U.S.C.

§ 2000e-2(k)(1)(A)(i); see Davis, 246 F. Supp. 3d at 394-97.

The court thought the plaintiffs identified only “an overall

decisionmaking process,” which did not meet the statutory

requirement to identify the particular practices that caused

them to lose their jobs. Davis, 246 F. Supp. 3d at 394-95. The

court thus concluded that the practices by which the Agency

fired plaintiffs could not be reviewed for adverse racial impact

under Title VII. That decision was in error.

A disparate impact claim contends that an observed

disparity caused by a particular employment practice cannot be

justified as necessary to the employer’s business. The purpose

of disparate impact analysis under Title VII is to permit

plaintiffs to challenge “practices, procedures, or tests” that may

be “neutral on their face, and even neutral in terms of intent,”

but that disproportionately harm members of a protected class.

Griggs, 401 U.S. at 430. Whereas disparate treatment requires

a showing of discriminatory motive, disparate impact supports

liability in the absence of proof of invidious intent, based on

evidence that the challenged practices have a

13

disproportionately adverse effect on the plaintiffs that cannot

be justified as necessary to an employer’s business.

In calling on disparate-impact plaintiffs to identify the

particular employment practices they challenge, the law “goes

beyond the need to show that there are statistical disparities in

the employer’s work force.” Watson, 487 U.S. at 994; see Wal-

Mart Stores, Inc. v. Dukes, 564 U.S. 338, 357 (2011) (pointing

to “overall sex-based disparity” in workforce is not enough).

The requirement to identify the employment practice or

practices responsible for the shortfall guards against holding

employers “liable for ‘the myriad of innocent causes that may

lead to statistical imbalances’” in a given workforce. Smith v.

City of Jackson, 544 U.S. at 241 (quoting Wards Cove Packing

Co. v. Atonio, 490 U.S. 642, 657 (1989)). As the Supreme

Court explained:

Our disparate-impact cases have always focused on

the impact of particular hiring practices on

employment opportunities for minorities. Just as an

employer cannot escape liability under Title VII by

demonstrating that, “at the bottom line,” his work

force is racially balanced (where particular hiring

practices may operate to deprive minorities of

employment opportunities), see Connecticut v. Teal,

457 U.S. [440,] 450 [(1982)], a Title VII plaintiff

does not make out a case of disparate impact simply

by showing that, “at the bottom line,” there is racial

imbalance in the work force.

Wards Cove, 490 U.S. at 656–57. Thus, when unidentified

events or a “myriad of innocent causes” cumulate over time to

result in racial, ethnic, religious, or gendered statistical

imbalances in a workforce, those imbalances are not rendered

susceptible to a Title VII challenge by the mere measurement

14

of statistical shortfall. But where the object of the suit is an

identifiable practice, criterion, or bundle of criteria behind a

specified employment event like the rash of contemporaneous

layoffs challenged here, disparate impact analysis applies.

To state a disparate impact claim, plaintiffs are

“responsible for isolating and identifying the specific

employment practices that are allegedly responsible for any

observed statistical disparities.” Wards Cove, 490 U.S. at 656

(quoting Watson, 487 U.S. at 994) (emphasis added). An

actionable “specific employment practice” might be a set of

“subjective criteria” such as hiring based on personal networks

or firing based on a manager’s subjective sense of who best to

retain; or it might be comprised of “more rigid standardized

rules or tests” like height, weight, length-of-service, or

performance-based standards. Id. (quoting Watson, 487 U.S.

at 994). Disparate impact analysis is “no less applicable to

subjective employment criteria than to objective or

standardized tests.” Watson, 487 U.S. at 990; accord Wal-Mart

Stores, Inc. v. Dukes, 564 U.S. 338, 355 (2011) (“[A]n

employer’s undisciplined system of subjective decisionmaking

[can have] precisely the same effects as a system pervaded by

impermissible intentional discrimination.” (quoting Watson,

487 U.S. at 990-91)). A combination of subjective and

objective determinants, too, can count as a sufficiently specific

employment practice. Watson, 487 U.S. at 990, 994.

There is no mystery in this case as to the layoff practices

plaintiffs challenge: the Agency’s choices to (a) target the

SWA and SSA job categories for elimination; and (b) allow

managers to make putatively individualized, discretionary and

subjective choices of which positions to winnow from other

units. See Third Am. Compl. ¶¶ 56, 58, 60 (alleging

elimination of SWA and SSA jobs); Appellants’ Br. 25-27

(contending that the Agency “left the livelihood of African

15

American employees in the hands of multiple supervisors

without requiring those supervisors use any uniform criteria or

standardized guidance when making termination decisions”);

Oral Arg. 15:14-20 (the layoffs were “carried out in an

undisciplined and subjective way”). Indeed, although its stated

reasons have yet to be tested through discovery, the District has

acknowledged that the Agency employees to be fired were “not

identified through the use of uniform criteria . . . but rather

through multiple individual decisions by the agency

leadership.” Def.’s Memo in Supp. of Summ. J., J.A. 225; see

id. 224-25 (urging district court—erroneously—to reject

plaintiffs’ impact claim because “subjective decisions” are not

practices subject to challenge for their disparate impact (citing

Leichihman v. Pickwick Int’l, 814 F.2d 1263, 1270 n.4 (8th Cir.

1987) abrogated by Watson, 487 U.S. at 989-90)). As the

Agency itself describes it, the procedures for culling jobs fit

Watson’s description of “an employer’s undisciplined system

of subjective decisionmaking” as to which “it is difficult to see

why Title VII’s proscription against discriminatory actions

should not apply.” 487 U.S. at 990-91.

This is the first time this court has been asked whether a

RIF or, more precisely, the practices through which an

employer implements a RIF are subject to disparate-impact

review under Title VII, but we see no basis to exempt such

practices from otherwise-applicable law. Our analysis in

Aliotta v. Bair, 614 F.3d 556 (D.C. Cir. 2010), assumed without

deciding that a targeted group of layoffs pursuant to a RIF

could be reviewed for potential disparate impact. Although the

district court in that case had held that the plaintiff failed to

identify “a specific adverse employment practice within the

2005 downsizing” to support his claim of age-based disparate

impact, Aliotta v. Bair, 576 F. Supp. 2d 113, 127 (D.D.C.

2008), we did not endorse that reasoning on appeal. We never

questioned whether the employer’s method of carrying out the

16

RIF was a tenable subject of analysis. Rather, once we isolated

layoffs representing “the independent effect of the 2005 RIF

itself” from contemporaneous voluntary buyouts, plaintiff’s

claim failed because the statistics showed a disadvantage to

younger employees rather than to the older group to which the

plaintiff belonged. Aliotta, 614 F.3d at 569-70.

Courts that have applied Title VII in the context of RIFs

have shown how to analyze the layoffs involved as a “particular

employment practice.” They go beyond the general concept of

a “RIF” to identify actionable practices of “selecting only

certain (predominantly female) departments,” Shollenbarger v.

Planes Moving & Storage, 297 Fed. App’x 483, 486 (6th Cir.

2008), or of focusing cuts on offices where “black employees

are concentrated,” Council 31, Am. Fed’n of State, Cty. & Mun.

Emps. v. Ward, 978 F.2d 373, 375, 377-78 (7th Cir. 1992); see

also Sengupta v. Morrison-Knudsen Co., 804 F.2d 1072, 1073-

74, 1076-77 (9th Cir. 1986) (analyzing a reduction in force for

disparate impact). When an employer cuts back on its

workforce by “targeting” demographically disproportionate

departments for layoffs, that practice means that “the

likelihood of selecting a[n individual in a protected class]

increase[s].” Shollenbarger, 297 Fed. App’x at 486. Such a

practice is what plaintiffs here identify, and is the kind of

practice the disparate impact theory of discrimination exists to

scrutinize. It is consistent with precedent, and neither unwieldy

nor unfair, to treat the processes by which the Agency

identified plaintiffs’ jobs for elimination as “particular

employment practice[s]” under section 2000e-2(k)(1)(A)(i).

We are mindful that, as important as it is, the requirement

that plaintiffs identify a particular employment practice does

not alone do all the work of shielding employers from liability

for mere racial (or other protected-class) imbalance in a

workforce: Plaintiffs also have the burden to show

17

“caus[ation],” 42 U.S.C. § 2000e-2(k)(1)(B)(ii), and, pursuant

to Title VII’s familiar burden-shifting framework, the

defendant has the opportunity to demonstrate “business

necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(i); see Wards Cove,

490 U.S. at 656; Watson, 487 U.S. at 994-98. The Supreme

Court in Texas Department of Housing & Community Affairs

v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015),

emphasized the important constraint the causation requirement

imposes on disparate impact claims. In holding that the Fair

Housing Act provides for disparate impact liability, the Court

affirmed the impact theory against charges that it is

unreasonably expansive, largely by stressing that a “robust

causality requirement . . . protects defendants from being held

liable for racial disparities they did not create.” Id. at 2523.

And, ultimately, “the ‘touchstone’ for disparate-impact

liability is the lack of ‘business necessity’” supporting the

challenged practice. Ricci v. DeStefano, 557 U.S. 557, 578

(2009). Thus, “[h]ow far this 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.” Segar, 738 F.2d at 1267.

The district court appeared to grasp the clear racial effect

of the Agency’s method of implementing its reduction in force.

Plaintiffs’ expert, Dr. Munro, presented statistics showing

dramatic over-representation of African American employees

in the positions chosen for elimination. The “targeted

positions/divisions” were disproportionately occupied by

African Americans. J.A. 380. And the termination rate was

444% higher for the African American employees than

Caucasians. See J.A. 377. The court accurately observed that

record evidence showed that the Agency’s job “cuts were not

equally distributed”; the layoff “left some positions or divisions

relatively unscathed, while it completely eliminated other

positions.” Davis, 246 F. Supp. 3d at 395. “In fact,” the district

18

court expounded, “cuts to just two positions,” held almost

entirely by African American employees, “constituted the

majority of terminations in the RIF.” Id. (citing Def.’s SOF ¶

20). The district court declined to address the statistics,

however, because it thought plaintiffs had failed to identify a

“specific” employment practice. The court cautioned that

“simply pointing to a RIF generally is not sufficient,” id. at 395,

and drew on out-of-circuit, primarily district-court decisions to

support its rule that a RIF is not a particular practice subject to

disparate-impact challenge under Title VII. See Davis, 246 F.

Supp. 3d at 395 (citing Powell v. Dallas Morning News, 776 F.

Supp. 2d 240, 258 (N.D. Tex. 2011); Zawacki v. Realogy

Corp., 628 F. Supp. 2d 274 (D. Conn. 2009); Mustelier v.

Equifax, Inc., No. Civ. 08-1008, 2009 WL 890468, at *6

(D.P.R. Mar. 25, 2009); Kourofsky v. Genencor Int’l, Inc., 459

F. Supp. 2d 206, 215 (W.D.N.Y. 2006)); see also id. (citing

Leichihman, 814 F.2d at 1269 n.5).

We need not generally decide whether a RIF as such might

ever be a “particular employment practice” under section

2000e-2(k)(1)(A)(i). Cf. Dissenting Op. at 5. Terminating a

large group of employees in a compressed timeframe is clearly

an adverse employment action within the meaning of Title VII,

and an employer’s assertion that the firings were a “RIF”

required by budget cuts does not somehow immunize them

from Title VII scrutiny. To the extent that a completed RIF is

an identified event comprising selection and termination of a

rash of employees, it is a far cry from the challenges to bottom-

line “racial imbalance in the work force” that precedent and our

colleague eschew. Dissenting Op. at 6 (quoting Wards Cove,

490 U.S. at 657). In our view, however, it is more confusing

than clarifying to ask whether RIFs in general are “particular

employment practices” under Title VII. For one thing, “RIF”

is not a legally defined term. It is often used as a shorthand for

downsizing a workforce, and can refer to the general

19

anticipation (“We’ll need to RIF ten percent of our

employees”) or completion thereof (“I was RIF’d last month”).

And, because the term is often used in the context of economic

exigency, it unhelpfully invites prejudgment of the question

whether the procedures used to determine which employees to

let go were supported by business necessity.

This case does not present that question because plaintiffs’

claim is not that the RIF in the abstract was unlawful. Nor, for

that matter, do they take issue with the decision that laying off

52 employees would enable the Agency to comply with the FY

2011 budget cut. What calls for identification and scrutiny,

and what plaintiffs challenge here, is not the Agency’s decision

to reduce its workforce, but the process the Agency used to

select positions for the chopping block. See Third Am. Compl.

¶¶ 56, 58, 60 (alleging elimination of SWA and SSA jobs);

Appellants’ Br. 25-27 (contending that the Agency

disproportionately fired African American employees without

requiring supervisors to “use any uniform criteria or

standardized guidance when making termination decisions”);

Oral Arg. 15:14-20 (the layoffs were “carried out in an

undisciplined and subjective way”). And those processes are

susceptible of challenge under disparate impact precedents.

See Wards Cove, 490 U.S. at 656; Watson, 487 U.S. at 990-91.

The dissent posits that plaintiffs only challenge the RIF

“writ large,” and not the Agency’s particular means of

implementing it. Dissenting Op. at 8; see id. at 8-13. We

disagree: the record makes clear that plaintiffs’ challenge to

“the RIF” is shorthand for its attack on the specific processes

the Agency used in order to cut positions to meet its budget

shortfall. 1 To be sure, neither party’s briefing has been entirely

1

Some of the plaintiffs’ references to the RIF “as a whole”

appear to respond to the Agency’s efforts to reframe the analysis.

20

clear, and in the district court each party on occasion advanced

legally erroneous propositions and focused on points of no

apparent relevance. Perhaps not surprisingly, plaintiffs

brought this claim into better focus on appeal. See, e.g.,

Appellants’ Br. 12, 21 (discussing the Agency’s

“implementation of the RIF”). In any event, we take the

Agency at its word that, to carry out its workforce reduction, it

chose to target the SWA and SSA job categories for

elimination, and cut jobs from other categories according to

“multiple individual decisions” by management. J.A. 235.

Because those processes—which plaintiffs identify on appeal

and which the Agency itself says it used—are “properly before

the court,” we are “not limited to the particular legal theories

advanced by the parties, but rather retain[] the independent

power to identify and apply the proper construction of

governing law.” Kamen v. Kemper Fin. Servs. Inc., 500 U.S.

90, 99 (1991); see also Lebron v. Nat’l R.R. Passenger Corp.,

513 U.S. 374, 379 (1995) (“Our traditional rule is that once a

federal claim is properly presented . . . parties are not limited

to the precise arguments they made below.”) (internal

quotations omitted).

The dissent is right that the framing of the specific

employment practice matters, see Dissenting Op. at 11-12, but

not exactly as to how. The distinction between challenging the

RIF simpliciter and challenging the processes by which it was

implemented could have litigation consequences down the

road. But on the disparate-impact question, the latter framing

does not “render[] irrelevant the agency-wide statistics.” Id. at

Plaintiffs resisted the narrow focus of the Agency’s statistical expert

on the effects within departments and job categories chosen for

elimination; they claim the RIF was “agency-wide,” and that the

correct comparison is between the jobs selected for elimination and

the agency as a whole. Pls.’ Mem. at 18, ECF Doc. 148, Davis v.

District of Columbia, No. 10-1564 (D.D.C. Dec. 21, 2015).

21

12. Either way, the agency-wide statistics speak to the

threshold issue the district court raised and the parties

addressed: Whether, in shrinking an agency of 892 people by

at least 52 employees, the identified mechanisms by which

defendants did so had a statistically significant racial impact.

We take no stance here on other potential hurdles the

dissent identifies with challenges to subjective employment

decisions. Id. Because the district court bifurcated discovery

to first tee up whether there was a statistical disparity, see

Scheduling Order, and postponed inquiry into other questions

such as business justification and commonality that the dissent

highlights, Dissenting Op. at 12, neither that court nor this one

is yet in a position to pass on those points. The Agency’s

reasons for its actions evince a fact-intensive inquiry into

business justification. The dissent’s doubts that the

defendants’ practices tie the class together more closely than

the claimed diffuse, nationwide practice at issue in Wal-Mart

could be relevant to a motion for class certification. Those

matters will be explored only if, on remand, the district court

finds that the practices by which the Agency implemented the

layoffs had a statistically significant racial impact. On the

matter now before us, the dissent does not dispute that an

identified practice used to implement a RIF may be challenged

for its disparate impact, but would hold that plaintiffs forfeited

that claim. See Dissenting Op. at 8-10.

As the district court chose to manage it, this case remains

at the first step: plaintiffs’ prima facie case. But the Agency’s

expert, Dr. Bronars, presumed operational justification for (and

therefore excluded from analysis) the Agency’s selection of

certain offices for downsizing and its wholesale elimination of

the SSA and SWA jobs. The premise of Dr. Bronars’s

statistics, the Agency conceded at oral argument, put the “cart

before the horse” by assuming the very facts that a successful

22

statistical showing by plaintiffs would next require the Agency

to show: that the reason the Agency targeted certain positions

for elimination was justified by business necessity. Oral Arg.

36:54-37:29; see id. at 22:23-39 (plaintiffs’ counsel explaining

same). If on remand plaintiffs clear the statistical hurdle, the

parties will have an opportunity after appropriate discovery to

address whether the Agency’s execution of the reduction in

force was justified by business necessity. Justification

supporting elimination or downsizing of certain offices might

at that point be seen to respond to the relevant statistical

showing.

Because plaintiffs have leveled their disparate impact

challenge against the particular target of the Agency’s process

for cutting and culling job categories, we reverse the district

court’s decision to the contrary, and the accompanying denial

on mootness grounds of the motion for class certification, and

remand for further proceedings consistent with this opinion.

B. Challenges to the Bachelor’s Degree Requirement

The district court also granted summary judgment in the

Agency’s favor on plaintiffs’ disparate impact and disparate

treatment challenges to the bachelor’s degree requirement

associated with the Family Support Worker position. The court

correctly concluded that plaintiffs failed to raise a triable issue.

1. Disparate Impact

The district court held that plaintiffs failed to meet their

burden to identify a race-based statistical disparity potentially

caused by the challenged degree requirement. Davis, 246 F.

Supp. 3d at 398-99. This is a defect that plaintiffs as much as

admitted on appeal by asking this court to take judicial notice

of extra-record census data showing general racial disparities

23

among degree holders in the District of Columbia. See

Appellants’ Reply 18-20 & n.5. The burden rests with

plaintiffs to show the racial disparity, see Wards Cove, 490

U.S. at 651, and we are not prepared on appeal to take judicial

notice of census data not brought to the district court’s

attention. More fundamentally, that data could not by its own

terms fill the gap in this record. To show an adverse racial

impact attributable to imposition of the challenged degree

requirement, plaintiffs would have to identify the qualified

applicant pool. But there is no evidence that these jobs are

positions for which all District of Columbia resident applicants

would necessarily be qualified. Because plaintiffs failed to

make the relevant showing, we affirm the district court’s grant

of summary judgment in the Agency’s favor on this ground.

The district court also doubted the plaintiffs’ race-based

challenges to the degree requirement for the FSW position on

the ground that all of the Agency’s FSW hires were African

American. Davis, 246 F. Supp. 3d at 399. The Agency has

since correctly conceded that these plaintiffs’ disparate impact

claim cannot be defeated by evidence that the Agency

ultimately hired other African Americans to fill the FSW jobs.

See Appellee’s Br. 43-44; Oral Arg. 49:39-50:06. The

Supreme Court in Connecticut v. Teal held that, even where

plaintiffs are replaced by persons in their protected class, such

a “‘bottom line’ does not preclude [plaintiff] employees from

establishing a prima facie case, nor does it provide [a

defendant] employer with a defense to such a case.” 457 U.S.

at 442. Despite the surface appeal of “measur[ing] [disparate

impact] . . . at the bottom line,” the Court recognized that doing

so “ignores the fact that Title VII guarantees these individual

black respondents the opportunity to compete equally with

white workers on the basis of job-related criteria.” Id. at 451

(emphasis in original). To the extent that the “bottom line” was

alluded to here, however, it did not detract from the correctness

24

of the district court’s holding that plaintiffs lacked evidentiary

support for this claim.

2. Disparate Treatment

The district court also granted summary judgment in the

Agency’s favor on the disparate treatment challenge to the

FSW’s degree requirement. That disparate treatment claim

relied solely on statistical disparities. See Davis, 246 F. Supp.

3d at 400-01; see also Oral Arg. 23:10-20; id. at 24:15-30,

25:54-26:26 (confirming that plaintiffs “are relying entirely on

statistical evidence” of disparate impact to establish disparate

treatment). Although it is possible to make a prima facie case

of disparate treatment based solely on statistics, see Teamsters,

431 U.S. at 339, in order to do so plaintiffs must present a

“significant” pattern of discrimination unexplainable on

grounds other than race, see Aliotta, 614 F.3d at 562. And in

the absence of information about the composition of the

qualified applicant pool, the district court correctly found no

cognizable disparate impact, let alone a significant one. Davis,

246 F. Supp. 3d at 400-01.

Plaintiffs could have sought to prove their disparate

treatment claim with other circumstantial or direct evidence

that the Agency implemented the degree requirement for racial

reasons. And because the district court bifurcated discovery,

limiting the first phase to statistical evidence of disparate

impact, plaintiffs had not yet had a chance to develop record

support regarding the relevant decision makers’ motivation for

creating the FSW post and its attendant degree requirement.

See Scheduling Order. But, by conceding that their claim was

based solely on statistical evidence and failing to oppose

summary judgment on this claim with a Rule 56(d) declaration

asserting their entitlement to discovery to support it, Plaintiffs

forfeited any claim to investigate the motive behind the FSW’s

25

degree requirement. As a result, we affirm the district court’s

grant of summary judgment in the Agency’s favor as to the

disparate treatment claim against the degree requirement.

C. Estoppel by Bankruptcy Filings

Finally, we consider the district court’s dismissal of the

claims of some individual plaintiffs. Because no claims

regarding the FSW’s degree requirement remain, we need not

address the district court’s holding that two plaintiffs who have

bachelor’s degrees, Darius Morris and Zaccheus Ajakaiye,

lacked standing to challenge that requirement. We therefore

turn to the court’s decision that two plaintiffs’ Title VII claims

are barred by estoppel.

The court held that Ajakaiye and another plaintiff,

Stephanie Alston, were judicially estopped from proceeding

because they had failed to disclose their Title VII claims in their

personal bankruptcy proceedings. See Davis, 246 F. Supp. 3d

at 385-87. We review only for abuse of discretion the district

court’s decision to invoke judicial estoppel. Marshall v.

Honeywell v. Tech. Sys. Inc., 828 F.3d 923, 928 (D.C. Cir.

2016).

Judicial estoppel “prevents a party from asserting a claim

in a legal proceeding that is inconsistent with a claim taken by

that party in a previous proceeding.” Moses v. Howard Univ.

Hosp., 606 F.3d 789, 798 (D.C. Cir. 2010) (quoting New

Hampshire v. Maine, 532 U.S. 742, 749 (2001)). In a

bankruptcy petition, a debtor must disclose “all potential

claims.” Id. at 793. “This means that a debtor is under a duty

both to disclose the existence of pending lawsuits when he files

a petition in bankruptcy and to amend his petition if

circumstances change during the course of the bankruptcy.” Id.

That duty comports with the bankruptcy estate’s authority to

26

control the debtor’s assets for the benefit of creditors. The

disclosure obligation extends to administrative complaints,

including those before the EEOC. Marshall, 828 F.3d at 924-

25. A debtor’s failure to comply with that duty can trigger

judicial estoppel to prevent him from pocketing proceeds of a

previously pending but undisclosed suit, which proceeds

should have been distributed to creditors in the bankruptcy.

There is no dispute that plaintiffs failed to disclose their

potential Title VII claims in their bankruptcy petitions.

Ajakaiye filed his bankruptcy petition on July 2, 2010. Two

weeks later, on July 16, 2010, he filed the EEOC charge that,

on September 16, 2010, germinated into the complaint in this

case. The bankruptcy court discharged Ajakaiye’s debts on

October 14, 2010, without Ajakaiye’s ever having disclosed the

EEOC proceeding or the ensuing suit. Alston, for her part, filed

her bankruptcy petition on May 21, 2013, three years after

plaintiffs filed suit in this case; she also failed to disclose the

circumstances of her potential claim before her debts were

discharged in bankruptcy.

Plaintiffs challenge the application of judicial estoppel to

their claims on two grounds. First, they argue that judicial

estoppel is an affirmative defense that the District did not raise

in its Answer so forfeited. But the doctrine is not only a

defense; because it also protects the integrity of the judicial

process, a court may invoke judicial estoppel “at its discretion.”

See New Hampshire, 532 U.S. at 750 (quoting Russell v. Rolfs,

893 F.2d 1033, 1037 (9th Cir. 1990)); see also Allen v. C & H

Distribs., LLC, 813 F.3d 566, 571 n.4 (5th Cir. 2015)

(explaining that the doctrine may be invoked “‘sua sponte’ and

therefore ‘the court is not bound to accept a party’s apparent

waiver of the doctrine’” (quoting 18 Moore’s Federal Practice

§ 134.34 (3d ed. 2015))).

27

Plaintiffs also contend that the application of judicial

estoppel is inappropriate in cases of an inadvertent or mistaken

failure to disclose claims or potential claims. See Marshall,

828 F.3d at 930 (citing New Hampshire, 532 U.S. at 753). It is

easy enough to imagine that many people—perhaps these

plaintiffs included—do not see potential, or even filed and

pending, legal or administrative claims as assets that must be

disclosed in bankruptcy; they therefore might innocently fail to

list such claims. After all, plaintiffs seeking justice may not be

thinking of their yet-to-be-vindicated claims as “assets,”

especially at the outset of a long and winding litigation road

with an uncertain end. But once the estoppel question was

raised, plaintiffs (who are here represented by counsel) failed

to introduce even their own sworn declarations to support the

assertions in the legal briefs that their failures to disclose were

inadvertent. See id. at 930-31 (describing a plaintiff’s affidavit

“stating that when she filed her bankruptcy petition and

schedules . . . ‘I had no knowledge that I was required to list

my discrimination administrative proceedings on my

bankruptcy petition schedules or on any financial

statements’”).

To be sure, the district court could have exercised its

discretion differently, given that estoppel “looks toward cold

manipulation and not unthinking or confused blunder.”

Konstantinidis v. Chen, 626 F.2d 933, 939 (D.C. Cir. 1980)

(quoting Johnson Serv. Co. v. Transamerica Ins. Co., 485 F.2d

164, 175 (5th Cir. 1973)). Ajakaiye had not yet filed even his

administrative claim when he sought bankruptcy, and we see

no signs of manipulation by either plaintiff. However, given

the absence of any evidentiary submissions to support the

assertion of mistaken nondisclosure, the district court did not

abuse its broad discretion in holding that, on this record,

plaintiffs failed to create a genuine dispute of material fact

defeating estoppel. See Marshall, 828 F.3d at 932; see also id.

28

at 933-34 (Griffith, J., dissenting). We therefore affirm the

district court’s dismissal of these plaintiffs’ claims on estoppel

grounds.

* * *

We reverse the district court’s entry of summary judgment

for the District as to plaintiffs’ disparate impact challenge to

the firings under both Title VII and the District of Columbia

Human Rights Act, and the associated denial of the motion for

class certification, and remand for further proceedings

consistent with this opinion. We affirm the district court’s

grant of summary judgment on the remaining Title VII and

District of Columbia Human Rights Act claims. We also

affirm the district court’s dismissal of all claims by plaintiffs

Alston and Ajakaiye on judicial estoppel grounds.

So ordered.

KATSAS, Circuit Judge, concurring in part and dissenting

in part: This case arises out of a reduction in force (RIF)

conducted by the District of Columbia Child and Family

Services Agency. The plaintiffs challenged the RIF as the

source of an alleged disparate impact on black employees. On

summary judgment, the district court held that the RIF itself—

a series of layoffs—was not a particular employment practice

subject to disparate-impact challenge under Title VII.

My colleagues remand for the district court to consider

other challenges to more specific practices through which the

RIF might have been implemented—decisions to eliminate

certain job categories and to permit individual supervisors to

use subjective criteria in making layoff decisions. Because the

plaintiffs disavowed those challenges, and because the

challenge that they made lacks merit, I would affirm the

summary judgment in its entirety.

I

Title VII of the Civil Rights Act of 1964 makes it unlawful

for an employer “to limit, segregate, or classify” employees in

any way that would “adversely affect” an individual’s “status

as an employee, because of … race.” 42 U.S.C. § 2000e-

2(a)(2). In Griggs v. Duke Power Co., 401 U.S. 424 (1971),

the Supreme Court construed this provision to prohibit

employment practices that, without business justification,

produce adverse impacts correlated to race. The Court

elaborated on the scope of disparate-impact liability under Title

VII in Watson v. Fort Worth Bank & Trust, 487 U.S. 977

(1988), and Wards Cove Packing Co. v. Atonio, 490 U.S. 642

(1989).

Congress responded to these decisions with the Civil

Rights Act of 1991, which codified disparate-impact liability

and specified its parameters. Pub. L. No. 102-166, § 105, 105

2

Stat. 1071, 1074–75. As a result, Title VII now provides that

“[a]n unlawful employment practice based on disparate impact

is established … only if,” as relevant here, the plaintiff

“demonstrates” that the employer “uses a particular

employment practice that causes a disparate impact on the basis

of race.” 42 U.S.C. § 2000e-2(k)(1)(A) & (A)(i). Moreover,

when challenging multiple practices, the plaintiff “shall

demonstrate that each particular challenged employment

practice causes a disparate impact,” unless the plaintiff “can

demonstrate … that the elements of [an employer’s]

decisionmaking process are not capable of separation for

analysis.” Id. § 2000e-2(k)(1)(B)(i).

The D.C. Child and Family Services Agency provides

services to abused and neglected children. In 2009 and 2010,

the City Council reduced the Agency’s budget by $37.4 million

and lowered its cap on employees from 940 to 840. As a result,

the Agency undertook a RIF in which 115 employees lost their

jobs. About 70 of these employees were Social Worker

Associates (SWAs) or Social Service Assistants (SSAs). The

others worked in various divisions throughout the Agency.

The plaintiffs are former employees terminated during the

RIF. They contend that the RIF writ large produced an

unlawful disparate impact on black employees, and they seek

to represent a putative class of all employees terminated during

the RIF, including a subclass of all terminated black

employees. Between 2010 and 2015, the plaintiffs filed four

different complaints, conducted discovery on the alleged

disparate impact, and produced two expert reports addressing

it. The plaintiffs’ expert sought to measure the effect of the

RIF as a whole, by comparing the racial composition of the

terminated employees to that of the overall Agency workforce.

See Expert Report of Dr. Paige Munro, Davis v. District of

Columbia, No. 10-cv-1564 (D.D.C.), ECF Doc. 146-3, Ex. I at

3

1–4; Rebuttal Report of Dr. Paige Munro, ECF Doc. 146-4, Ex.

K at 2–3.

After all of this, the District moved for summary judgment.

As relevant here, it argued that the plaintiffs had neither

identified a “particular employment practice” subject to

disparate-impact scrutiny nor produced evidence of any

statistical disparity caused by such a practice. See Def.’s Mem.

Supp. Mot. Summ. J., ECF Doc. 146 at 18–23. In response, the

plaintiffs argued that “the RIF” was the challenged “particular

employment practice,” which produced a disparate impact

because the Agency terminated 15.5% of its black employees

but only 5.6% of its other employees. See Pls.’ Mem. Opp’n

Def.’s Mot. Summ. J., ECF Doc. 148 at 37–41.

The district court granted summary judgment for the

District. It ruled that the plaintiffs had failed to establish a

prima facie case because “the RIF” was not a “particular

employment practice” subject to challenge under Title VII’s

disparate-impact provisions. Davis v. District of Columbia,

246 F. Supp. 3d 367, 393–97 (D.D.C. 2017).

II

The Supreme Court has made clear that, for disparate-

impact claims, “the plaintiff’s burden in establishing a prima

facie case goes beyond the need to show that there are statistical

disparities in the employer’s work force.” Wards Cove, 490

U.S. at 656 (quoting Watson, 487 U.S. at 994 (plurality

opinion)). If the prima facie case required nothing more,

employers would face potential liability for “the myriad of

innocent causes that may lead to statistical imbalances in the

composition of their work forces.” Id. at 657 (quoting Watson,

487 U.S. at 992 (plurality opinion)). As a result, “disparate-

impact liability might cause race to be used and considered in

a pervasive way and ‘would almost inexorably lead’

4

governmental or private entities to use ‘numerical quotas.’”

Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys.

Project, Inc., 135 S. Ct. 2507, 2523 (2015) (quoting Wards

Cove, 490 U.S. at 653). But racial balancing is “far from the

intent of Title VII,” Albemarle Paper Co. v. Moody, 422 U.S.

405, 449 (1975) (Blackmun, J., concurring in judgment), as the

statute itself makes clear: “Nothing contained in this

subchapter shall be interpreted to require any employer … to

grant preferential treatment … on account of an imbalance …

with respect to the total number or percentage of persons of any

race” employed. 42 U.S.C. § 2000e-2(j). Moreover, if

disparate-impact liability effectively compelled racial

balancing regardless of the qualification of individual

employees, it would be at war with the more fundamental

prohibition against disparate treatment “because of … race,”

id.§ 2000e-2(a)(1); see Ricci v. DeStefano, 557 U.S. 557, 577–

85 (2009), and would raise “serious constitutional questions,”

Inclusive Cmtys., 135 S. Ct. at 2523; see Ricci, 557 U.S. at 594–

96 (Scalia, J., concurring).

For these reasons, Wards Cove required disparate-impact

plaintiffs to “begin by identifying the specific employment

practice that is challenged,” 490 U.S. at 656 (quoting Watson,

487 U.S. at 994 (plurality opinion)), and then to prove that it

caused the disparate impact, id. at 657 (“As a general matter, a

plaintiff must demonstrate that it is the application of a specific

or particular employment practice that has created the disparate

impact under attack.”); see also Meacham v. Knolls Atomic

Power Lab., Inc., 554 U.S. 84, 100 (2008) (the plaintiff must

“do more” than “point to a generalized policy that leads to” a

disparate impact (cleaned up)). Congress later codified the

requirement that the plaintiff identify “a particular employment

practice that causes a disparate impact.” 42 U.S.C. § 2000e-

2(k)(1)(A)(i). My colleagues recognize this basic governing

legal framework. Ante at 12–14, 16–17.

5

Under this framework, the decision to hire or fire workers

cannot by itself form the basis for disparate-impact claims. In

Smith v. City of Jackson, 544 U.S. 228 (2005), the Supreme

Court affirmed summary judgment for an employer charged

with using a pay plan that adversely affected older workers.

The Court explained that, under Wards Cove, “it is not enough

to simply allege that there is a disparate impact on workers, or

point to a generalized policy that leads to such an impact.” Id.

at 241. Rather, the plaintiffs had to identify a “specific test,

requirement, or practice within the pay plan that has an adverse

impact on older workers.” Id. (emphasis added). Likewise, in

Davis v. Cintas Corp., 717 F.3d 476 (6th Cir. 2013), the Sixth

Circuit held that, for hiring claims, the “particular employment

practice” supporting the claim “cannot be the hiring system

itself.” Id. at 496. And, as my colleagues acknowledge,

various district courts have applied these principles to conclude

that “a RIF is not a particular practice subject to disparate-

impact challenge under Title VII.” Ante at 18. These decisions

advance the basic purpose of requiring a “particular

employment practice” in the first place—to prevent employers

from facing large exposure for “the myriad of innocent causes

that may lead to statistical imbalances.” Wards Cove, 490 U.S.

at 657 (quoting Watson, 487 U.S. at 992 (plurality opinion)).

Throughout this litigation, the plaintiffs have predicated

their disparate-impact claim on “the RIF, as a whole.”

Appellants’ Br. at 20. But as my colleagues explain, “RIF” is

simply a “shorthand for downsizing a workforce.” Ante at 18.

Thus, the gravamen of the plaintiffs’ claim is that a set of

layoffs caused the racial composition of the Agency’s

workforce to change. The plaintiffs do not link that change to

anything besides the layoffs. So, they have not identified any

“particular employment practice” that caused the adverse

impact, and their claim runs afoul of a key Title VII teaching:

“a Title VII plaintiff does not make out a case of disparate

6

impact simply by showing that, at the bottom line, there is

racial imbalance in the work force.” Wards Cove, 490 U.S. at

657 (quotation marks omitted).

In response, the plaintiffs argue that neither pre-1991 Title

VII cases (such as Wards Cove) nor age-discrimination cases

(such as Smith) apply here. Before 1991, Wards Cove

governed disparate-impact claims under both Title VII and the

Age Discrimination in Employment Act (ADEA). See Smith,

544 U.S. at 240. The operative ADEA provision, 29 U.S.C.

§ 623(a)(2), tracks 42 U.S.C. § 2000e-2(a)(2), the original Title

VII provision that Griggs construed to give rise to disparate-

impact liability. But in the Civil Rights Act of 1991, Congress

disapproved certain aspects of Wards Cove, see Pub. L. No.

102-166, § 2(2), 105 Stat. at 1071; expanded disparate-impact

liability under Title VII, see id. § 105, 105 Stat. at 1074–75;

and left the ADEA unchanged. As a result, the plaintiffs argue,

neither Wards Cove nor ADEA cases now govern disparate-

impact analysis under Title VII.

The plaintiffs’ argument confuses different aspects of the

disparate-impact framework. What Congress disapproved was

Wards Cove’s formulation of the business-necessity defense,

see Pub. L. No. 102-166, § 3(2), 105 Stat. at 1071, which it

narrowed. Compare Wards Cove, 490 U.S. at 659 (“there is no

requirement that the challenged practice be ‘essential’ or

‘indispensable’ to the employer’s business”), and id. (burden

of persuasion “remains with the disparate-impact plaintiff”),

with 42 U.S.C. § 2000e-2(k)(1)(A)(i) (employer must

“demonstrate that the challenged practice is job related for the

position in question and consistent with business necessity”).

But far from disapproving Wards Cove’s requirement that the

plaintiff identify the “specific or particular employment

practice that has created the disparate impact under attack,” 490

U.S. at 657, Congress codified that holding, in requiring the

7

plaintiff to “demonstrate[]” that the employer “uses a particular

employment practice that causes a disparate impact,” 42 U.S.C.

§ 2000e-2(k)(1)(A)(i). The plaintiffs further try to distinguish

a “specific” practice under Wards Cove from a “particular”

practice under the statute. But that distinction is insubstantial;

“specific” and “particular” are synonyms, and Wards Cove

used them as such. See 490 U.S. at 657. Moreover, since 1991,

the Supreme Court repeatedly has cited Wards Cove’s holding

on the need for a “specific” or “particular” employment

practice as good law, see, e.g., Inclusive Cmtys., 135 S. Ct. at

2522–23; Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 357

(2011), and other courts have recognized it as such, see, e.g.,

Reyes v. Waples Mobile Home Park Ltd. P’ship, 903 F.3d 415,

425 (4th Cir. 2018); Tabor v. Hilti, Inc., 703 F.3d 1206, 1223

(10th Cir. 2013). Finally, courts addressing the statutory

requirement of a “particular employment practice” have cited

Title VII and ADEA precedents interchangeably. See, e.g.,

Davis, 717 F. 3d at 496–97.

The plaintiffs claim support from three cases, but none

helps their position. In Aliotta v. Bair, 614 F.3d 556 (D.C. Cir.

2010), we did not decide whether a RIF qualified as a specific

employment practice that could support disparate-impact

liability. Instead, we affirmed summary judgment for the

employer because the plaintiffs had shown no adverse impact

in any event. See id. at 569–70 (“the RIF disproportionately

affected younger employees”). Moreover, Council 31 v. Ward,

978 F.2d 373 (7th Cir. 1992), and Shollenbarger v. Planes

Moving & Storage, 297 F. App’x 483 (6th Cir. 2008),

considered disparate-impact claims predicated not on RIFs as

such, but on specific decisions through which the RIFs had

been implemented. See id. at 486 (“We conclude that the

challenged employment practice of subjecting only certain

[predominantly female] departments to the RIF had a

legitimate business justification.”); Council 31, 978 F.2d at 379

8

(permitting challenge to “the initial decision to concentrate the

layoffs in Chicago,” where “black employees are

concentrated”). Neither case supports the plaintiffs’ disparate-

impact challenge to “the RIF, as a whole.”

Finally, the plaintiffs seek to challenge the RIF under 42

U.S.C. § 2000e-2(k)(1)(B)(i), which provides that if the

plaintiff “can demonstrate to the court that the elements of a

respondent’s decisionmaking process are not capable of

separation for analysis,” then “the decisionmaking process may

be analyzed as one employment practice.” In opposing

summary judgment, the plaintiffs never invoked that provision,

much less sought to create a triable issue on whether the

Agency’s decisionmaking was “capable of separation for

analysis.” The plaintiffs thus have forfeited this possible basis

for attacking the RIF as a whole. See, e.g., Chichakli v.

Tillerson, 882 F.3d 229, 234 (D.C. Cir. 2018).

III

My colleagues do not seek to defend the plaintiffs’

arguments on their own terms, but rather to recast them. They

repackage the plaintiffs’ broad challenge to the RIF as a much

narrower attack on “the Agency’s choices to (a) target the SWA

and SSA job categories for elimination; and (b) allow managers

to make putatively individualized, discretionary and subjective

choices of which positions to winnow from other units.” Ante

at 14. They thus describe this case as one involving “the

practices through which an employer implements a RIF,” ante

at 15, along the lines contemplated by Council 31 and

Shollenbarger.

What my colleagues describe is not the case that the

plaintiffs presented, either below or on appeal. Instead, the

plaintiffs have consistently framed their lawsuit as a challenge

to the RIF writ large. In the district court, they opposed

9

summary judgment by arguing that “a RIF conducted due to

budget cuts is a facially neutral employment practice that can

be considered under disparate impact theory.” Pls.’ Mem.,

ECF Doc. 148 at 38. Then, they stated unequivocally that “the

specific employment practice in this case is the RIF.” Id. at 40.

On appeal, the plaintiffs continued to direct their challenge to

“the RIF, as a whole.” Appellants’ Br. at 20; accord

Appellants’ Reply Br. at 6 (“the RIF is the ‘particular

employment practice’ that resulted in a disparate impact based

on race”); id. at 8 (“the discriminatory ‘particular employment

practice’ that disparately impacted Plaintiffs-Appellants was

the RIF itself”). And at oral argument, the plaintiffs repeated

this point no fewer than six times. See Oral Arg. 2:38 (“a RIF

is a particular employment practice”); 4:24 (“the RIF was a

particular employment practice”); 5:56 (challenging “the

decision to lay off employees”); 9:57 (“The target is the layoff

decision”); 10:23 (“plaintiffs have met their prima facie duty to

identify the RIF as a particular employment practice”); 13:12

(“the RIF does meet Title VII”). As the plaintiffs pursued it,

this case was about the RIF itself.

Moreover, in the district court, the plaintiffs expressly

disclaimed both of the challenges now suggested by my

colleagues. Far from alleging that the SWA and SSA positions

were targeted for elimination, the plaintiffs posited that these

positions were replaced by a new, functionally identical

position of Family Support Worker (FSW). Pls.’ Mem., ECF

Doc. 148 at 8–11. Furthermore, the plaintiffs described the RIF

as an “agency-wide” layoff driven by budget cuts, id. at 37–38,

and they argued that “[n]othing” in the record “indicated that

the RIF targeted particular positions,” id. at 6. As for

subjective judgments, the plaintiffs said in no uncertain terms,

in a bolded argument heading: “The RIF was not the result of

subjective decision-making.” Id. at 39. The plaintiffs made

these disclaimers not once, but several times. See, e.g., id. at 3

10

(“there is not a single piece of evidence on the record that

supports” the premise that the RIF was concentrated in

“specific offices and divisions within the agency” (quotation

marks omitted)); id. (“the agency undertook a neutral cost-

cutting move rather than a targeted realignment”); id. at 40

(“Defendant simply cannot show that the RIF was a targeted

subjective process”); Pls.’ Stmt. Disputed Material Facts, ECF

Doc. 148-1 at 3 (“Nothing … indicated that the RIF targeted

particular positions or was conducted as a result of individual

decisions.”); id. at 4 (“The personnel cuts were not driven by a

targeted realignment of the Agency.”). Even on appeal, the

plaintiffs never sought to predicate their claim on the putative

targeting of SWA and SSA positions. They do now briefly

argue that the RIF was implemented through an ad hoc system

of “subjective” decisionmaking, Appellants’ Br. at 25–27, but

parties cannot change positions on appeal, see Keepseagle v.

Perdue, 856 F.3d 1039, 1053–54 (D.C. Cir. 2017).

The district court clearly identified what the plaintiffs were

and were not challenging. As it explained, the plaintiffs

“framed the RIF itself” as the challenged employment practice,

246 F. Supp. 2d at 396, and they affirmatively argued “that the

RIF was not the result of targeted, subjective decision-

making,” id. at 395. The court further observed: “Plaintiffs

might have framed the purported neutral employment practice

as the elimination of the SSA and SSW positions,” but they

“did not elect to do so.” Id. at 397. The court thus did not

embrace the sweeping conclusion that worries my

colleagues—that any “method of implementing” a RIF is

immune from disparate-impact scrutiny. Ante at 17–18.

Rather, the court simply rejected the challenge presented to it,

while not addressing other challenges that the plaintiffs could

have made but did not.

11

My colleagues respond that because the Agency’s specific

“processes” for implementing the RIF are “properly before the

court,” we are not “limited to the particular legal theories

advanced by the parties.” Ante at 20 (quoting Kamen v.

Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991)). But Kamen

simply holds that, if the parties properly present an “issue or

claim,” forfeiture cannot force a court to decide it under an

incorrect “construction of governing law.” 500 U.S. at 99.

Here, the claims challenging the Agency’s specific processes

are not properly before the court, for the plaintiffs repeatedly

disavowed them. The plaintiffs claim only that “the RIF, as a

whole” violated Title VII, and we may readily evaluate that

claim based on our own assessment of the governing law.

Moreover, the plaintiffs’ challenge to “the RIF, as a whole”

cannot be deemed an “umbrella claim,” Lebron v. Nat’l R.R.

Passenger Corp., 513 U.S. 374, 381 (1995) (quotation marks

omitted), encompassing challenges to the RIF’s constituent

parts. That theory runs headlong into Title VII, which prohibits

disparate-impact challenges to an employer’s overall

“decisionmaking process” unless the plaintiff shows that its

elements are “not capable of separation for analysis,” 42 U.S.C.

§ 2000e-2(k)(1)(B)(i)—a showing that the plaintiffs did not

even attempt below. Despite my colleagues’ creative efforts,

the governing forfeiture rule here is a pedestrian one: Where

distinct employment practices are at issue, plaintiffs must

separately preserve challenges to each one. See, e.g., Brooks v.

Grundmann, 748 F.3d 1273, 1278–79 (D.C. Cir. 2014); Sellers

v. Deere & Co., 791 F.3d 938, 943 n.4 (8th Cir. 2015).

The requirement of precisely identifying the challenged

employment practice is no mere pleading quibble. To the

contrary, it has substantial consequences in any Title VII case.

Here, for example, a challenge to the alleged targeting of SWA

and SSA positions would have benefitted substantially fewer

prospective class members, thus also substantially reducing the

12

expected aggregate recovery for the class. It also would have

rendered irrelevant the agency-wide statistics developed by the

plaintiffs’ own expert, given the “essential requirement” that

“the data concern those persons subject to the challenged

employment practice.” Carpenter v. Boeing Co., 456 F.3d

1183, 1196 (10th Cir. 2006); see also Sengupta v. Morrison-

Knudsen Co., 804 F.2d 1072, 1076 (9th Cir. 1986) (“The

impact of a practice on the protected class should generally be

measured against the actual pool of employees affected by that

practice.”).1 Likewise, a challenge to the practice of permitting

individual supervisors to evaluate subordinates subjectively

would have raised a host of difficulties—including objections

that “merely proving that the discretionary system has

produced a racial or sexual disparity is not enough” to establish

a prima facie case, Wal-Mart, 564 U.S. at 357; that there are

obvious business justifications for permitting subjective

assessments of employees, id. at 355; and that localized

decisionmaking forecloses the possibility of class certification,

id. at 348–60. In this context as elsewhere, our adversarial

system holds litigants to their tactical choices, because it

presumes that “the parties know what is best for them, and are

responsible for advancing the facts and arguments entitling

them to relief.” Greenlaw v. United States, 554 U.S. 237, 244

(2008) (quotation marks omitted).

1

My colleagues suggest that agency-wide statistics might

suffice to make the case that they sketch out. Ante at 20–21. But a

Title VII plaintiff must “demonstrate that each particular challenged

employment practice causes a disparate impact.” 42 U.S.C. § 2000e-

2(k)(1)(B)(i). So, a case resting on (1) elimination of the SSA and

SWA positions and (2) use of individual supervisors’ subjective

decisions to make further cuts would need separate statistical

analyses of each practice.

13

In short, the plaintiffs challenged nothing more specific

than the RIF. Because the RIF is not a “particular employment

practice” within the meaning of Title VII, the plaintiffs failed

to establish a prima facie case of disparate-impact

discrimination. Accordingly, I respectfully dissent from Part

II.A of the Court’s opinion, but join the balance of Part II.