Murphy v. Pricewaterhousecoopers, Llp, Civil Action No. 02-982 (RJL).

580 F.Supp.2d 16

C. Westbrook MURPHY, and Harold Schuler, Plaintiffs, v. PRICEWATERHOUSECOOPERS, LLP, Defendant.

Civil Action No. 02-982 (RJL).

United States District Court, District of Columbia.

September 24, 2008.

COPYRIGHT MATERIAL OMITTED

David Louis Rose, Joshua N. Rose, Rose & Rose, PC, Richard A. Salzman, Douglas B. Huron, Tammany Morgan Kramer, Heller, Huron, Chertkof, Lerner, Simon & Salzman, PLLC, David M. Wachtel, Bernabei & Wachtel, PLLC, Washington, DC, for Plaintiffs.

Eric M. Nelson, Julie A. Klusas Gasper, Stephen L. Sheinfeld, Winston & Strawn LLP, New York, NY, Thomas M. Buchanan, Thomas M. Buchanan, Winston & Strawn LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

RICHARD J. LEON, District Judge.

This case is before the Court on defendant's motion for summary judgment. Defendant PricewaterhouseCoopers, LLP ("PwC" or "defendant") moves for dismissal of Plaintiff Harold Schuler's ("Schuler" or "plaintiff") remaining age discrimination claims, brought under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the District of Columbia Human Rights Act ("DCHRA"), D.C.Code § 2-1401.01, et seq. Upon review of the pleadings, the entire record, and the applicable law, the Court GRANTS defendant's motion.¹

BACKGROUND

I. Statutory Background

The Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., makes it unlawful for an employer "to fail or refuse to hire or discharge any individual or otherwise discriminate against any individual [who is at least forty years old] with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1); see id. § 631(a). Similarly, the District of Columbia Human Rights Act, D.C.Code § 2-1401.01, et seq., provides in relevant part, that it shall be unlawful for any employer, "wholly or partially for a discriminatory reason based upon the actual or perceived: race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibilities, genetic information, disability, matriculation, or political affiliation of any individual ... [t]o fail or refuse to hire, or to discharge, any individual; or otherwise to discriminate against any individual, with respect to his compensation, terms, conditions, or privileges of employment, including promotion." D.C.Code. § 2-1402.11.

II. Factual Background

A. The Parties

PricewaterhouseCoopers, LLP is engaged in the business of providing professional services throughout the United States and the world. (Compl.¶¶ 4, 5.) PwC is a limited liability partnership, incorporated in Delaware and headquartered in New York. (Id.) PwC employs more than 20,000 individuals in the United States and has more than 2,000 individuals who are partners or principals. (Pl.'s Opp'n [Docket No. 204] at 3; Def.'s Stmt. [Docket No. 187-3] ¶ 2.)

Plaintiff Harold Schuler² has been an employee at PwC or one of its predecessor firms³ since 1988. (Compl.¶ 12.) Before joining PwC, Schuler held various positions at the Office of the Controller of Currency. (Id. ¶ 24.) PwC initially hired Schuler as a senior manager in the Regulatory Advisory Services ("RAS") unit in the firm's Washington, D.C. office.⁴ (Id. ¶ 12.) Shortly after joining PwC, Schuler was promoted to director and was later promoted to managing director in the RAS unit. (Id.) Schuler was not promoted to partner or principal during the course of his employment. (Id. ¶ 27.)

B. The PwC Partnership and Principals Agreement

PwC is organized and exists pursuant to the PwC Partnership and Principals Agreement ("the Partnership Agreement"), which provides that "[a]n Individual's association with the Firm shall cease at the end of the Fiscal Year in which he or she attains age 60." (Def.'s Stmt. ¶ 2; Pl's Ex. 1, Art. 10, Sec. 10.1(a).) The term "Individual" is defined as "a person who is either a Partner or a Principal." (Pl.'s Ex. 1, Art. 1.) The sole parties to the Partnership Agreement are the partners and principals of PwC. There is no such mandatory retirement provision for PwC employees. (Def.'s Stmt. ¶ 19.)

C. 1999, 2000, 2001 Partnership Promotion Cycles in the RAS Unit

PwC has an annual partnership selection process, culminating each year in the announcement of new partners effective July 1 (the beginning of PwC's fiscal year). (Def.'s Ex. Q, ¶ 1.) The admission process begins in the preceding fiscal year, with partners in each business unit of the firm identifying potential partner candidates. (Def.'s Mot. Summ. J., Carter Tr. at 96.) During the relevant time period, Robert Bench ("Bench"), as managing partner of the RAS unit, had primary responsibility for hirings and promotions within the RAS unit. (Def.'s Mot. Summ. J., Schuler Tr. at 23-24; Def.'s Mot. Summ. J., Murphy Tr. at 894-95.) When identifying potential partnership candidates, Bench, together with other RAS partners, considered the RAS unit's business need for new partners and, assuming there was such a need, determined which of the RAS employees was best qualified to meet this need. (Def.'s Mot. Summ. J., Bench 11/29/2006 Tr. at 50-52; Def.'s Mot. Summ. J., Lewis Tr. at 155-59.) Only those employees who had "sustained outstanding performance over time" reflected in "1" rated annual performance evaluations⁵ were considered as potential partner candidates in the RAS unit.⁶ (Bench 11/29/2006 Tr. at 170-71.)

In June 1998, Bench identified Schuler as a potential partner candidate from the RAS unit and prepared a Partner Candidate Proposal for Schuler's admission in the 1999 cycle.⁷ (Def.'s Ex. J.) Schuler, however, did not receive adequate support in the "soundings" process (a canvass of the partners to gauge support in the firm for the proposed candidacy) to proceed to the formal partnership process.⁸ (Def.'s Mot. Summ. J., Bench Tr. at 118, 121, 143.) Although Bench agreed to support Schuler again in the 2000 admission cycle, Schuler's proposed candidacy was not put through another round of soundings.⁹ (Def.'s Ex. O; Schuler Tr. at 29-31.) Another RAS unit employee, David Albright ("Albright"), was proposed and admitted in the 2000 partnership cycle. (Bench 11/29/2006 Tr. at 185-86.) A firm-wide announcement, listing Albright (and others) as newly admitted partners, was made on June 2, 2000.¹⁰ (Def.'s Ex. H.) No RAS employees, including Schuler, were sponsored as potential partner candidates in the 2001 cycle and no new partners were admitted from the RAS unit until July 1, 2004.

III. Procedural Background

A. Administrative Complaint

Plaintiff Schuler filed an administrative charge with the District of Columbia Office of Human Rights ("DCOHR") on or about June 29, 2001. (Compl.¶ 32.)¹¹ This complaint was cross-filed with the U.S. Equal Employment Opportunity Commission ("EEOC"). (Id.) The charge states that PwC has denied Schuler "promotional opportunities" on the basis of his age because the Partnership Agreement requires partners and principals to retire at 60, and as a result, "no professional employee who is 60 years old or older can be promoted to partnership." (See Def.'s Mot. to Dismiss [Docket No. 30], Ex. E ("Schuler Discrimination Compl.") at 1.)¹² Schuler's charge alleges that, although he is qualified for partnership, he has not been promoted to partner. (Id. at 1-2.) The charge also references the partnership promotion of younger, less qualified employees in 2000. (Id. at 2.) Schuler subsequently amended his original charge on December 12, 2001 to allege that PwC refused to consider him for promotion to partner in 1999, 2000, and 2001. (See Def.'s Mot. to Dismiss [Docket No. 30], Ex. G.)¹³

B. Schuler's Remaining Claims

Plaintiff Schuler, along with Plaintiff C. Westbrook Murphy ("Murphy"), filed this action on May 20, 2002, alleging violations of the ADEA, DCHRA, and the Human Rights Law of New York ("NYHRL"), Executive Law Article 15, et seq. (Compl.¶¶ 42-51.) Specifically, Schuler alleges that PwC denied him promotion to partnership in 1999, 2000, and 2001 and instead promoted younger, less experienced employees. (Compl.¶ 29.) Schuler sought to proceed on a "pattern or practice" theory on behalf of a class of purportedly similarly situated "older" employees of the firm.¹⁴ (See Compl.)

On September 27, 2004, I issued a ruling on cross-motions for partial summary judgment and defendant's motion to dismiss, significantly narrowing plaintiff's claims. Murphy v. PricewaterhouseCoopers, LLP, 357 F.Supp.2d 230 (D.D.C.2004). The Court ruled that the case could not proceed as a class or collective action or on a pattern or practice theory. Id. at 247 ("[I]n light of this Court's earlier finding that the plaintiffs may not proceed with their class allegations because they failed to adequately allege such claims at the administrative level, it additionally concludes that they are barred from proving their discrimination claims under a `pattern and practice' theory.") The Court also held that, to the extent plaintiffs' pattern and practice claim was based on a "disparate impact" theory, it was not cognizable under the ADEA.¹⁵ Id. The Court also dismissed the following claims: (1) Schuler's claims against 20 of the 21 individual defendants;¹⁶ (2) Schuler's claims against PwC's Board of Partners and Principals; (3) Schuler's ADEA retaliation claims; (4) Schuler's ADEA claims for non-promotion in the 1999 and 2000 cycles; and (5) Schuler's NYHRL claims.¹⁷ Id. at 238-40, 241-45. As a result of this decision, the only claims remaining in this action are Schuler's disparate treatment claims under the ADEA for the 2001 cycle and Schuler's disparate treatment claims under DCHRA, pursuant to the Court's supplemental jurisdiction.¹⁸

Defendant PwC now moves for summary judgment on Schuler's remaining disparate treatment claims. PwC argues that Schuler's remaining claims are timebarred and, to the extent these claims are not...