DECISION AND ORDER
The plaintiffs in this putative class action (“Plaintiffs”) allege that the process by which the United States Census Bureau (“Census Bureau”) screens applicants for temporary jobs for the decennial census is racially discriminatory and therefore violates Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”). Specifically, the Plaintiffs challenge (1) the Census Bureau’s policy requiring all applicants with criminal records to provide “official court documentation” of their prior arrests and convictions within 30
On September 10, 2010, the Census Bureau filed a motion to dismiss the Plaintiffs’ first amended complaint. (See ECF No. 35 (“First Amended Complaint” or “FAC”)). On March 14, 2011,1 granted in part and denied in рart that motion. See Johnson v. Locke, No. 10 Civ. 3105(FM),
Presently before the Court are two subsequent motions: (1) the Census Bureau’s motion to dismiss the Plaintiffs’ claims for declaratory and injunctive relief (ECF No. 61); and (2) the Plaintiffs’ motion for leave to file a second amended complaint (“Second Amended Complaint” or “SAC”) (ECF No. 52). For the reasons set forth below, the Census Bureau’s motion to dismiss is denied; the Plaintiffs’ motion for leave to amend is granted in part and denied in part.
I. Background
For a more thorough recitation of the facts, see Johnson I at *1-6. Unless otherwise noted, the following facts are either undisputed or presented in the light most favorable to the Plaintiffs.
A. Census Bureau Hiring Process
Pursuant to Article I, Section 2 of the United States Constitution, the Census Bureau conducts a population and housing census every ten years. In furtherance of the 2010 decennial census, the Census Bureau hired over one million temporary workers out of approximately 3.8 million applicants. (SAC ¶¶ 1-2). Almost every applicant was subjected to a criminal background check as a prerequisite for еmployment. (Id. ¶ 2). The background checks consisted of running the applicants’ names and personal information through a Federal Bureau of Investigation (“FBI”) database in an attempt to discover any arrest records associated with the applicants. (Id. 112). The Census Bureau then sent each applicant with a prior arrest record a form letter (“30-day Letter”) requiring the applicant to submit “OFFICIAL COURT documentation on any and all arrest(s) and/or conviction(s) in [the applicant’s] past” within 30 days to remain eligible for employment. (Id. ¶ 15 & Ex. A). Applicants who wished “to dispute the identity of the arrest record in question” were instructed, in the alternative, to submit a set of original fingerprints within 30 days. (Id.). Significantly, the Census Bureau sent 30-day Letters to applicants with arrest records even if they had not been convicted of a crime. The background checks also had no temporal limitations. Accordingly, applicants with decades-old arrests, including arrests when they were juveniles, received 30-day Letters. (Id. ¶ 12).
Approximately 93 percent of the 30-day Letter recipients-roughly 700,000 individuals failed to provide court documentation or fingerprints. (Id. ¶ 12). According to the Plaintiffs, applicants who received a
The Plaintiffs contend that these Census Bureau policies have a racially discriminatory impact, in violation of Title VII, because the arrest and conviction rates of African-Americans, Latinos, and Native Americans far exceed those of Caucasians. (Id. ¶ 30).
B. Original Plaintiffs
Plaintiffs Eugene Johnson (“Johnson”), Evelyn Houser (“Houser”), Anthony Gonzalez (“Gonzalez”), Ignacio Riesco (“Riesco”), and Precious Daniels (“Daniels”) (collectively, the “Original Plaintiffs”) have individual claims that survived the Census Bureau’s first motion to dismiss.
In Johnson I. the Court determined that each Original Plaintiff stated a claim upon which relief could be granted. As the Court explained, Houser had exhausted her administrative remedies before commencing this action, and the remaining Original Plaintiffs could “piggyback” onto Houser’s claims because of the “single filing rule.” See
C. Dismissed Plaintiffs
In Johnson I. the Court also dismissed the claims of Rickett-Samuels and Anderson (together, the “Dismissed Plaintiffs”) without prejudice. Id. at *10, *12. Rickett-Samuels’ clаim was dismissed because she had filed an Equal Employment Opportunity (“EEO”) complaint but failed to exhaust her administrative remedies and thus could not piggyback on Houser’s claim. Anderson, who is Native American, also was unable to piggyback on Houser’s claim because Plouser’s EEO complaint failed to allege that the Census Bureau discriminated against Native Americans. Both Dismissed Plaintiffs now seek to reassert claims in the proposed Second Amended Complaint.
D. New Plaintiffs
The proposed Second Amended Complaint also seeks to assert claims on behalf of three new plaintiffs — Chynell Scott (“Scott”), Vivian Kargbo (“Kargbo”), and Scotty Desphy (“Desphy”) (collectively, the “New Plaintiffs”) — primarily in an effort to resurrect the Original Plaintiffs’ dismissed class claims. See Johnson /, at *14 n. 11 (“As a practical matter, this disposition will not preclude the Plaintiffs from pursuing their class claims since at least some of the administrative complaints containing class claims that the Census Bureau has held in abeyance pending the outcome of this lawsuit will presumably now be permitted to proceed.”). Each of the New Plaintiffs timely filed an EEO complaint asserting class-wide claims pursuant to 29 C.F.R. § 1614.204. (See SAC ¶¶ 38-40).
Scott is an African-American resident of Philаdelphia who applied for a temporary position with the Census Bureau in 2010. She received a 30-day Letter because she had been charged with four misdemeanors and two summary offenses in July 2008. Those charges arose out of an incident in which Scott allegedly left her two children unattended in her car for approximately ten minutes. The misdemeanor charges subsequently were dropped, and Scott pleaded guilty to the two summary offenses. (Id. ¶¶ 98-99). In response to the 30-day Letter, Scott sent the Census Bureau a “court summary” concerning her case. On February 3, 2010, the Census Bureau informed Scott that she would not be hired because of her criminal record. (Id. ¶ 100).
Kargbo is an African-American woman living in Dorchester, Massachusetts. Kargbo applied for a temporary job with the Census Bureau in March 2010. She received a 30-day Letter because of two charges against her that had been dis
Desphy is an African-American woman residing in Philadelphia. In 1982, Desphy was arrested on an assault charge after she was involved in an altercation with another woman. Desphy contends that she acted in self-defense. The judge imposed a one-year term of probation, but told her that the record would be expunged if she successfully completed her probation, which she did. (Id. ¶¶ 109-11). Desphy applied for a temporary position with the Census Bureau in February 2010 and subsequently received a 30-day Letter. Desphy responded with a written explanation of her conviction, along with two letters of reference. Despite those submissions, on March 4, 2010, Desphy received a letter from the Census Bureau denying her application for employment. (Id. ¶ 110).
II. Discussion
A. Defendant’s Motion to Dismiss
1. Standing and Mootness
Standing is “the threshold question in every federal case, determining the power of the court to entertain the suit.” Denney v. Deutsche Bank AG,
a. Applicable Law
i. Standing
As the Supreme Court explained in Lujan v. Defenders of Wildlife:
the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative,*699 that the injury will be redressed by a favorable decision.
In determining “whether the alleged injury is concrete and particularized,” courts must “assess whether the injury affect[s] the plaintiff in a personal and individual way, to confirm that the plaintiff has a personal stake in the controversy and avoid having the federal courts serve as merely publicly funded forums for the ventilation of public grievances or the refinement of jurisprudential understanding.” Baur v. Veneman,
The Census Bureau relies on City of Los Angeles v. Lyons,
ii. Mootness
Although standing tests “[t]he requisite personal interest that must exist at the commencement of the litigation,” mootness tests whether the issue remains live throughout the course of litigation. U.S. Parole Comm’n v. Geraghty,
A case also is moot when “the parties lack a legally cognizable interest in the outcome.” Cnty. of Los Angeles v. Davis,
b. Application of Law to Facts
As a preliminary matter, the Plaintiffs correctly characterize the issue as one of mootness rather than standing since the elements of standing are “evaluated at the time the complaint is filed.” Access 4 All,
Although the Census Bureau is correct that “[sjtanding must be demonstrated for each form of relief sought,” (ECF No. 87 (Def.’s Reply) at 3 (citing Laidlaw,
Despite these assertions, the Census Bureau has failed to meet its “heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again.” Laidlaw,
The Census Bureau’s reliance on HSPD 12 also is misguided, because that directive “mandates a federal standard for secure and reliable forms of identification, ” not background checks. (Patterson Decl. Ex. 9 at 1 (emphasis added)). HSPD 12 also was promulgated in 2004, several years before the background screening of applicants for the 2010 Census commenced. {Id.) Consequently, it does not follow that HSPD 12 will necessarily have any bearing on the background screening process of applicants for temporary positions for the 2020 Census.
In sum, although it may be true that the Census Bureau will not begin to develop background screening policies for the 2020 census until “sometime after 2015,” (Vitrano Deck ¶¶ 8-11), the Census Bureau has failed to meet its heavy burden of establishing that “subsequent events ma[ke] it
2. Ripeness
In the alternative, the Census Bureau contends that the Plaintiffs’ claims are not ripe for review. “Ripeness is a justiciability doctrine designed to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an аdministrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Nat’l Park Hospitality Ass’n v. Dep’t of the Interior,
As discussed with respect to mootness, the Plaintiffs allege that the challenged policies have been in place “since at least the initiation of the 2000 census,” and will likely again be applied when hiring for the 2020 census commences. (SAC ¶ 146). This case thus is distinguishable from cases in which courts have determined that pre-enforcement challenges to agency decisions are unripe. See, e.g., Duncan,
The Census Bureau does not dispute that the 30-day Letter and Adjudication Criteria were used in hiring temporary workers for the 2010 Census. Accordingly, this is not a case in which the agency has demonstrated an “interest in crystalizing its policy before that policy is subjected to judicial review.” Nevada,
Applying the two-pronged test outlined above, this case is fit for review because the challenged policies were applied to all applicants for temporary positions in connection with the 2010 census. The Court thus is not left in a position where it “lack[s] sufficient confidence in [its] powers of imagination to ascertain [the policies’] contours.” See Worth,
The Plaintiffs’ claims therefore are ripe for review, and the Census Bureau’s motion to dismiss them claims for injunctive and declaratory relief must be denied.
The Court next turns to the Plaintiffs’ motion for leave to amend their complaint. Before this case was assigned to me, Judge Berman “So Ordered” a Case Management Plan that required the Original Plaintiffs to amend their complaint within four months of April 13, 2010, ie., by August 13 2010. Thereafter, in Johnson I, the Court dismissed the individual claims of RicketNSamuels and Anderson, as well as the Plaintiffs’ class claims. In their “revised” Second Amended Complaint (see ECF No. 90 Ex. A), the Plaintiffs seek to add the claims of the New Plaintiffs and reassert the claims of the Dismissed Plaintiffs. The Plaintiffs further seek to amend the class claims in light of the Supreme Court’s recent decision in Wal-Mart Stores, Inc. v. Dukes, — U.S. -,
1. Standard to Amend
Rule 15(a) of the Federal Rules of Civil Procedure provides that a party may amend its complaint once as a matter of course before a responsive pleading has been served; thereafter, it may do so “only with ... the court’s leave,” which should “freely” be given “when justice so requires.” Fed.R.Civ.P. 15(a)(2). Courts therefore usually look favorably on requests to amend under Rule 15(a). See Ricciuti v. N.Y.C. Transit Auth.,
The Plaintiffs’ right to amend their complaint is also subject to Rule 16 of the Federal Rules of Civil Procedure because a pretrial scheduling order restricting their right to do so previously has been entered. Parker v. Columbia Pictures Indus.,
Finally, the Supreme Court has interpreted Rule 15 to bar an amendment if the amendment would be futile. See Hemphill v. Schott,
2. Venue
The Census Bureau claims that the Plaintiffs’ motion to amend the complaint should be denied, in part, because venue in this District is improper as to the Dismissed Plaintiffs and the New Plaintiffs.
a. Applicable Law
Although venue generally is governed by 28 U.S.C. § 1391, Title VII contains its own venue provision, 42 U.S.C. § 2000e — 5(f)(3), which permits suit to be brought in any of three locations. That statute provides that:
[A Title VII] action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice
Id. A defendant nevertheless may waive improper venue as a defense because venue is not jurisdictional. See Neirbo v. Bethlehem Shipbuilding Corp.,
An exception to Rule 12(h) allows a defendant to make an otherwise untimely objection to venue if that objection was not available at the time of the filing of the pre-аnswer motion or responsive pleading. See Fed.R.Civ.P. 12(g)(2). However, “[t]he filing of an amended complaint will not revive the right to present by motion defenses that were available but were not asserted in timely fashion prior to the amendment of the pleading,” 5C Charles Alan Wright, Federal Practice & Procedure § 1388, at 491 (4th ed.2009).
b. Application of Law to Facts
The Census Bureau did not raise improper venue as a defense in its July 2010 motion to dismiss the Original Complaint, (.see ECF Nos. 29-30), or its September 2010 motion to dismiss the First Amended Complaint (see ECF Nos. 35, 37). Instead, the first time that the Census Bureau raised improper venue as an affirmative defense was in its answer to the First Amended Complaint, filed on March 29, 2011 (see ECF No. 48); it raised that defense again in response to the Plaintiffs’ present motion to amend (see ECF No. 67 (“Def.’s Opp’n”)). The Census Bureau contends that its right to object to venue was not waived because it did not have the opportunity to object to venue as to the New Plaintiffs in its prior motions. The Census Bureau also argues that it has not waived improper venue as a defense to the claims of the Dismissed Plaintiffs because an amended complaint fully replaces a pri- or complaint.
Turning first to the Dismissed Plaintiffs, the Census Bureau clearly has waived improper venue as a defense because it failed to assert that defense in its September 2010 motion to dismiss the claims of Rickett-Samuels and Anderson. Rule 12(h) therefore precludes the Census Bureau from raising that defense now. The exception to Rule 12(h) discussed above is inapplicable because the Census Bureau had an opportunity to object to venue as to Ricketb-Samuels and Anderson in its prior motion to dismiss, but failed to do so. Venue therefore is proper as to the Dismissed Plaintiffs.
Even though it failed to object to venue in its pre-answer motions, the Census Bureau contends that it has not waived its venue defense because the New Plaintiffs’ claims “would drastically alter the scope and nature of the ease by alleging class-wide claims related to entirely new geographic regions.” (Def.’s Opp’n at 21). On this basis, the Census Bureau maintains that its failure to object to venue as to the Original Plaintiffs is irrelevant.
The New Plaintiffs’ claims, however, do not “drastically alter” the scope of the lawsuit as the Census Bureau suggests. Instead, the New Plaintiffs allege class claims substantially similar to the ill-fated class action claims brought by the Original Plaintiffs. Indeed, from the time the Original Complaint was filed, thе Census Bureau has been on notice that the Plaintiffs seek to bring a nationwide class action involving thousands of class members across the country. (See Compl. ¶ 9 (asserting class claims on behalf of all African-American, Latino, and Native American applicants for temporary jobs with the 2010 census who received a 30-day Letter, were otherwise qualified for employment, and were not hired by the Census Bureau); FAC ¶ 33 (same); SAC ¶ 33 (same)). Furthermore, all three of the New Plaintiffs reside in close geographic proximity to one or more of the Original Plaintiffs,
The few decisions to have addressed this issue further support the Plaintiffs. In Lanehart v. Devine,
More recently, in Bell v. Lockheed Martin Corp., No. 08-6292 (RBK/AMD),
The reasoning in Lanehart and Bell is persuasive. Rule 12(h) “requires that a defendant raise threshold objections such as venue as soon as they are ‘available.’ ” Bell,
3. Transfer
The defendants also have moved to sever each Plaintiffs claims and to transfer them to their respective home districts, or, in the alternative, to transfer the case intact to the District of Maryland, where the Census Bureau keeps its employment records. (Def.’s Opp’n at 36-40).
Under 28 U.S.C. § 1404, courts have considerable discretion in deciding such motions. The factors to be considered are: “[a] the convenience of witnesses; [b] the location of relevant documents and the relative ease of access to sources of proof; [c] the convenience of the parties; [d] the locus of the operative facts; [e] the availability of process to compel attendance of unwilling witnesses; [f] the relative means of the parties; [g] a forum’s familiarity with the governing lаw; [h] the weight accorded to plaintiffs choice of forum; and [i] trial efficiency and the interests of justice, based upon the totality of the circumstances.” Posven, C.A. v. Liberty Mut. Ins. Co.,
The party moving for a Section 1404 transfer bears the heavy burden of showing that a plaintiffs choice of forum should be set aside. Friedland v. Holiday Inns. Inc., No. 88 Civ. 7857(PKL),
The Census Bureau contends that the claims in this case should be severed and transferred because “permitting this case to proceed as ... a vast nationwide class action ... would create an unmanageable and logistieally impossible litigation, would prejudice and unduly burden the [Census Bureau], and would be contrary to judicial economy and feasible case administration.” (Def.’s Opp’n at 39-40). The Census Bureau further notes that the operative facts in this case took place largely outside the Southern District of New York, suggesting that the Plаintiffs’ home districts could more readily compel unwilling witnesses to testify and would prove more convenient for the Plaintiffs themselves.
Although the Census Bureau’s solicitude for the convenience of the Plaintiffs is impressive, even if the Court were to conclude that the Plaintiffs had engaged in forum shopping, that would not be a basis for granting the Census Bureau’s transfer motion. See Cheeseman v. Carey,
The Census Bureau also has failed to demonstrate that this case should be transferred to the District of Maryland. The Census Bureau notes that relevant documents are located in Maryland (see Def.’s Opp’n at 37), but has failed to address the Plaintiffs’ assertion that those documents are also available electroniсally. (See Decl. of Samuel R. Miller, Esq., dated Aug. 3, 2011 (ECF No. 85) (“Miller Decl.”), ¶¶ 3-4). The Census Bureau therefore has failed to proffer clear and convincing evidence that this case should be transferred to the District of Maryland, particularly considering that this case has been litigated before this Court for more than one year.
Ultimately, the question of whether to transfer this case, or certain of the Plaintiffs’ claims, is one that is remitted to the Court’s broad discretion. See D.H. Blair & Co., Inc. v. Gottdiener,
4. Dismissed Plaintiffs’ Claims
The Census Bureau further asserts that the Plaintiffs’ motion to amend should be denied as to the claims of the Dismissed Plaintiffs because neither RicketNSamuels nor Anderson exhausted her administrative remedies. Specifically, the Census Bureau contends that Rickett-Samuels’ proposed amended claims are futile because she failed to file a timely EEO complaint, and Anderson’s proposed amended claims fail because she cannot “piggyback” on the claims of RicketNSamuels or the
a. Applicable Law
i. Exhaustion Requirements
To pursue a Title VII claim in federal court, a plaintiff ordinarily must first exhaust her administrative remedies. See Legnani v. Alitalia Linee Aeree Italiane, S.P.A.,
The additional steps required to exhaust a Title VII claim against a federal agency vary depending on whether the plaintiff is pursuing an individual or a class claim. After initiating contact with an agency EEO counselor, a Title VTI plaintiff bringing an individual discrimination claim ordinarily need only file a timely complaint with, and obtain a right-to-sue letter from, the agency’s Equal Employment Opportunity Office (“EEOO”). See 29 C.F.R. §§ 1614.106, 1614.407; Alenski v. Potter, No. 03-CV-2179(SJF)(MLO),
Within 30 days after a class complaint is filed, the agency must forward the complaint to the EEOC, which may dismiss the complaint, or any portion thereof, on a number of grounds, including failure to meet the requirements of a class action complaint or lack of timeliness. 29 C.F.R. § 1614.204(d)(2). If the EEOC administrative judge accepts the complaint, the agency must notify class members of this development. Id. § 1614.204(e). Although the EEOC, rather than the agency, investigates the complaint, the Class Regulations provide an opportunity for reconciliation or a hearing if the dispute cannot be amicably resolved. Id. §§ 1614.204(g)-(h). At the end of the process, a class action representative who remains dissatisfied with the outcome of the administrative proceedings has 90 days to file a federal lawsuit. Id. § 1614.407. In addition, if the agency fails to take final action with re
ii. Single Filing Rule
Notwithstanding these detailed requirements for exhaustion, courts have held that “Title VII’s administrative prerequisites must be interpreted liberally to effectuate its purpose of eradicating employment discrimination.” Cronas v. Willis Grp. Holdings Ltd., No. 06 Civ. 15295(GEL),
In an effort to “mitigate what might otherwise be the harsh consequences of the exhaustion requirement” in employment cases, the Second Circuit has adopted what is known as the “single filing” or “piggybacking” rule. As Judge Kaufman explained in Snell v. Suffolk County,
In cases involving a substantial number of plaintiffs or a class, the Second Circuit has required an additional showing intended to ensure that both the employer and the EEOC are aware of what is at stake at the conciliation stage. Thus, to take advantage of the rule in such circumstances, a non-filing plaintiff must show that the filing plaintiffs complaint or charge provides “some indication that the grievance affects a group of individuals defined broadly enough to include those who seek to piggyback on the claim.” Id. (emphasis added).
A statement that a grievance affects persons other than the plaintiff may suffice to enable a non-filing plaintiff to piggyback on the claim of a similarly-situated filing plaintiff. Such a statement is not sufficient, however, to comply with the Class Regulations. See Gulley,
(i) identifies the policy or practice adversely affecting the class; (ii) identifies the specific action or matter affecting the class agent; (iii) alleges the class is*710 so numerous that a consolidated complaint filed on behalf of all members would be impractical; (iv) alleges that there are questions of fact common to the class members; [and] (v) alleges that the claims of the class’ agent are typical of the claims of the class’ members.
Woodward,
b. Application of Law to Facts
i. RicketL-Samuels
Rickett-Samuels filed a formal complaint with the Census Bureau EEOO in March 2010. (SAC ¶ 37). She amended her complaint to include class allegations on May 13, 2010. (Id.). The Census Bureau subsequently held that complaint in abeyance pending the outcome of the Census Bureau’s first motion to dismiss in this case. See Johnson I,
Rickett-Samuels reasserts her claims in the Second Amended Complaint, contending that she has now exhausted her administrative remedies because 180 days have elapsed since she filed her amended EEO complaint, and because she did not have actual or constructive notice of the 45-day filing requirement. The Census Bureau contends that her proposed amended claims are futile because she did not contact an EEO counselor within 45 days and waived the right to reassert her claims by not contesting thе Census Bureau’s first motion to dismiss.
Turning first to the Census Bureau’s waiver argument, RicketNSamuels clearly did not waive her right to reassert her claims. The Census Bureau filed its first motion to dismiss on September 10, 2011, but RicketNSamuels was not authorized to sue in federal court until November 9, 2011 (180 days after she filed her amended complaint). See 29 C.F.R. § 1614.106. Therefore, the Census Bureau’s contention that “RicketU-Samuels should not be permitted to amend her complaint now based on facts that were known long ago” is meritless. (Def.’s Opp’n at 10) (emphasis added). To the contrary, Rickett-Samuels was not authorized to sue until well after the Plaintiffs filed their Original Complaint, and approximately two months after the Census Bureau filed its first motion to dismiss.
Whether Ricketl^Samuels should be permitted to amend her complaint in light of her failure to contact an EEO counselor within 45 days is a closer ques
(a) Aggrieved persons who believe they have been discriminated against on the basis of race, color, religion, sex, national origin, age, disability, or genetic information must ...
(1) ... initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory (2) The agency or the Commission shall extend the 45-day time limit in paragraph (a)(1) оf this section when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them....
Id. (emphasis added).
Rickett-Samuels argues that the 45-day filing requirement should be tolled in her case because she had neither actual nor constructive notice of its existence. As support for this contention, Rickett-Samuels relies primarily on the EEOC decision relating to Houser’s claim, which found that Houser “[could] not be expected to have read [the EEO poster advising applicants of the 45-day time limit], thereby having [] constructive notice, while she was at the testing site for only a" brief time, ie., about an hour....” (Miller Decl. Ex. 4). Rickett-Samuels contends that the facts surrounding her claim are indistinguishable from those relating to Houser, Like Houser, Rickett-Samuels spent less than two hours at a testing location, and she denies having seen a poster advising applicants of the 45-day limit for contacting an EEO counselor. (See SAC ¶ 76).
In Johnson v. Runyon,
The reasoning of Johnson and the EEOC decision concerning Houser is persuasive. Unlike an employee, an applicant for a job — particularly a temporary job — -is unlikely to pay careful attention to employment discrimination-related postings, especially when the applicant is filling out an application and taking a test at a location other than the one where she will work if hired.
Furthermore, the Census Bureau has not produced the poster allegedly displayed at the Stamford, Connecticut Government Center, where Rickett-Samuels took her test. In a sworn declaration, a
RicketL-Samuels’ proposed amended claims therefore are not futile, and the Plaintiffs’ motion to amend the complaint is granted as to Rickett-Samuels’ claims,
ii. Anderson
Anderson seeks to reassert her dismissed claims on the theory that she should now be permitted to piggyback on the claims of Rickett-Samuels or the New Plaintiffs. Anderson received a rejection letter from the Census Bureau dated February 2, 2010. She consequently only had until March 20, 2010, to seek EEO counseling in compliance with the 45-day filing requirement. In the alternative, if Anderson failed to file an EEO complaint of her own, she could piggyback on a previously-filed claim that put the Census Bureau on notice that the 30-day Letter and Adjudication Criteria discriminated against Native Americans. However, none of the EEO complaints referenced in the Second Amended Complaint that assert claims on behalf of Native Americans was filed before March 20, 2010. Moreover, Rickett-Samuels first mentioned discrimination against Native Americans in her amended EEO complaint filed on May 13, 2010, (see SAC ¶ 37), and none of the New Plaintiffs filed their complaints before April 2010. (See id. ¶¶ 38-40). Anderson therefore cannot piggyback on the claims of Rickett-Samuels or the New Plaintiffs. It follows that the Plaintiffs’ motion to amend the complaint to reassert Anderson’s claims must be denied as futile.
5. Class Certification
The Census Bureau further contends that the Plaintiffs’ motion for leave to file a revised Second Amended Complaint should be denied because the Plaintiffs cannot successfully certify this case as a class action under Rule 23 of the Federal Rules of Civil Procedure. The Plaintiffs’ rejoinder proceeds on the premise that the Census Bureau has challenged “the procedure or scope of whatever class ultimately becomes certified,” but has not “attack[ed] the viability of the class in any meaningful way.” (EFC No. 84 (Pis.’ Reply) at 15 (emphasis in original)). For this reason, the Plaintiffs urge the Court to refrain from addressing the sufficiency of the class claims until the Plaintiffs file a post-discovery ipotion for class certification. In the alternative, the Plaintiffs ask for leave to submit supplemental briefing to address the issue in full. (Id. at 15 n. 14).
In light of the Court’s decision to deny the Census Bureau’s motion to dismiss the Plaintiffs’ claims for injunctive and declaratory relief, see supra Part II. A, the Plaintiffs will be allowed to amend their complaint to assert class claims on behalf of Rieketb-Samuels and the New Plaintiffs. While the Plaintiffs may face an uphill battle in their attempt to certify a nationwide class of individuals seeking monetary damages, see Wal-Mart,
Finally, the Court will allow the Plaintiffs to amend their complaint to allege class claims under Rule 23(b)(3) in light of the Supreme Court’s decision in Wal-Mart, which was issued after the Plaintiffs had filed their motiоn for leave to amend, but before the Census Bureau filed its opposition. In Wal-Mart, the Court held that claims for individualized monetary relief may not be certified under Rule 23(b)(2) if the monetary relief sought is not incidental to injunctive or declaratory relief.
III. Conclusion
For the reasons set forth above, the Census Bureau’s motion to dismiss the Plaintiffs’ claims for injunctive and declaratory relief (ECF No. 61) is denied, and the Plaintiffs’ motion for leave to amend (ECF No. 52) is denied with respect to Anderson’s claims, and granted in all other respects. Consequently, Plaintiffs Johnson, Houser, Gonzalez, Riesco, and Daniels may assert individual claims, and Plaintiffs Rickett-Samuels, Scott, Desphy, and Kargbo may assert both individual and class claims.
SO ORDERED.
Notes
. On January 4, 2012, Plaintiffs' counsel notified the Court of Johnson’s death. (See ECF No. 94). The Plaintiffs further indicated that they intend to move to substitute the executor of Johnson's estate as Johnson's legal representative in this action within the ninety-day time period prescribed by Rule 25(a)(1) of the Federal Rules of Civil Procedure. (Id.). By letter dated January 18, 2012, the Census Bureau claimed that Johnson’s death had an "immediate effect on plaintiffs' Motion to Amend, since [] Johnson's estate will not be able to pursue any injunctive claims on behalf of [] Johnson, even if any injunctive claims survive the [Census Bureau]'s pending Motion to Dismiss." (Letter from Ass't U.S. Att’y Daniel P. Filor to the Court, dated January 18, 2012, at 1). The Census Bureau further noted that Johnson’s estate likely cannot serve as a class representative. (Id. (citing First Interstate Bank of Nev. v. Chapman & Cutler,
. There is аt least one other action pending in this District that challenges the Adjudication Criteria. See Robinson v. Locke, No. 11 Civ. 2480(PAC)(DF). The plaintiff in that action, originally proceeding pro se, accepted a temporary position as a Census Bureau enumerator, but was arrested between the time he accepted the job and when he reported for training. Although the charges later were dropped, the Census Bureau rescinded its offer. On February 1, 2012, Magistrate Judge Freeman recommended that Secretary Locke’s motion to dismiss that action be denied, despite the plaintiff’s conceded failure to allege racial discrimination in his original administrative charge. (Id. ECF No. 21). One of the bases of that recommendation was that the pendency of this action confirmed that "both the [Census] Bureau and the [Equal Employment Opportunity Commission ('EEOC') ] could have been expected to consider and investigate the question of whether [the plaintiff] may have been adversely impacted by the [Census] Bureau's screening policy because of his race." (Id. at 17). After the Report and Recommendation was issued, counsel for the Plaintiffs in this action entered a notice of appearance оn behalf of the plaintiff in Robinson. (Id. ECF Nos. 22-25).
. The Plaintiffs also contend that the Census Bureau applies unlawful background screening policies when hiring workers for temporary non-decennial positions, and that hiring for those positions is continuous. (See ECF No. 78 (Pis.' Opp'n) at 6-7). In the absence of any allegations that the Plaintiffs have applied for such positions and that the 30-day Letter and Adjudication Criteria were used to screen applicants for those positions, the Court will not consider the hiring efforts in connection with these non-decennial positions in its analysis of standing and mootness.
. Houser and Johnson were the only two named plaintiffs in the Original Complaint, which recited that Houser lived in Philadelphia and Johnson lived in New York City. (See Compl. ¶¶ 25, 29).
. Scott, Desphy and Original Plaintiff Houser all live in Philadelphia. Kargbo and Original Plaintiff Riesco live in Massachusetts.
. Johnson is the only Plaintiff who applied for a census position in the Southern District of New York, and, as discussed supra in note 1, following his death the role that his executor may play in this case is unclear.
. "There is no regulatory scheme governing the exhaustion of class complaints in private-sector cases.” Woodward v. Salazar,
. 29 C.F.R. § 1614.106(d) provides that "[a] complainant may amend a complaint at any time prior to the conсlusion of the investigation to include issues or claims like or related to those raised in the complaint.” When a complainant files an amended complaint, "the agency shall complete' its investigation within the earlier of 180 days after the last amendment to the complaint or 360 days after the filing of the original complaint....” Id. § 1614.106(e)(2). Rickett-Samuels therefore was not authorized to file a federal lawsuit until November 9, 2010, 180 days after her amended complaint was filed.
. The cases cited by the Census Bureau all consider whether agency employees, rather than applicants, were on notice of the 45-day requirement, and thus are inapposite. See, e.g., Rosario v. Potter, No. 07 Civ. 5891(SCR)(GAY),