307 F.R.D. 13
D.D.C.2014Background
- Plaintiffs: a putative class of current/former non‑managerial African‑American and Native‑American secretarial and clerical employees of the Federal Reserve Board (14 of 16 plaintiffs remained). They alleged race discrimination in salary, cash awards, promotions, performance reviews, and career‑transition agreements.
- Agency structure: Division Directors have substantial autonomy; personnel decisions (evaluations, promotions, cash awards, supervision) vary across divisions and are largely discretionary and subjective.
- Discovery disputes: Plaintiffs largely failed to respond to written discovery and refused depositions; the Court repeatedly compelled discovery, rejected plaintiffs’ motions to compel additional data, and denied multiple motions for reconsideration of those rulings.
- Class certification filings: Plaintiffs filed a motion for class certification and late/extraneous expert materials; the Court struck untimely filings and denied plaintiffs’ motion to supplement an expert report as untimely and potentially inaccurate.
- Evidence and record: Plaintiffs presented limited anecdotal proofs and a statistical analysis by their expert that the Court found methodologically weak, non‑probative of a common mode of discrimination, and insufficient to tie individualized decisions together.
- Procedural disposition: Court denied class certification under Rule 23 and denied the motion to supplement the record; ordered related docket housekeeping (striking untimely filings).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a properly defined, ascertainable class exists | Proposed broad class of non‑managerial Black/Native clerical staff (1989–present) suffering race‑based adverse treatment | Class definition is vague, contingent on individualized merits findings, and not administratively ascertainable | Class definition is unascertainable and defective; class membership cannot be determined without merits inquiries — denied |
| Whether plaintiffs meet Rule 23(a) commonality and typicality | Plaintiffs argue common injury across practices (pay, promotions, reviews, awards) and rely on statistical analysis | Defendant: decisions are made by many low‑level supervisors with subjective, varied practices; no common policy or mode of decisionmaking | Plaintiffs failed to show commonality or typicality (no unitary policy or ‘‘glue’’ tying decisions together); denied |
| Whether plaintiffs may certify under Rule 23(b)(1) or (b)(2) for monetary relief (backpay) | Plaintiffs sought monetary relief as part of class remedies | Defendant: backpay requires individualized determinations and opt‑out protections; mandatory classes inappropriate | Court held (following Wal‑Mart) backpay claims cannot be certified under (b)(1) or (b)(2); denied |
| Whether plaintiffs may certify under Rule 23(b)(3) (predominance/superiority) | Plaintiffs claim common issues predominate and class adjudication is superior | Defendant: no common questions predominate because claims are individualized across practices, supervisors, and divisions | Predominance not met (no common issue); (b)(3) certification denied |
Key Cases Cited
- Wal‑Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) (Rule 23 commonality requires a common contention capable of classwide resolution; generalized discretion by local managers insufficient)
- Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) (Rule 23(b)(3) predominance inquiry is rigorous and requires linkage between damages model and common issues)
- Amchem Prods. v. Windsor, 521 U.S. 591 (1997) (Rule 23(b)(3) predominance examines whether the class is sufficiently cohesive for representative adjudication)
- Artis v. Bernanke, 630 F.3d 1031 (D.C. Cir. 2011) (prior appellate decision in the case addressing administrative exhaustion and discovery context)
- Moore v. Napolitano, 926 F. Supp. 2d 8 (D.D.C. 2013) (statistical evidence can support class certification when statistically significant and tied to a common employment policy)
- Love v. Johanns, 439 F.3d 723 (D.C. Cir. 2006) (statistical methodology must be appropriate to support conclusions about discrimination)