RICHARD W. ROBERTS, District Judge.
Plaintiffs, African-American current and former Special Agents ("SAs") of the United
The relevant facts for the motion for class certification were set out in Moore v. Napolitano (Moore III), 269 F.R.D. 21 (D.D.C.2010) as follows:
Moore III, 269 F.R.D. at 24-27.
The plaintiffs have moved for class certification three times before. The plaintiffs' third motion for class certification was considered in Moore III. There, the plaintiffs moved to certify a class
Id. at 27 (internal quotation marks and citation omitted). Although the plaintiffs' proposed class satisfied the numerosity and commonality prongs, the plaintiffs' motion for class certification was denied without prejudice because the class representatives' claims were not typical of the class members' claims and there were conflicts
The plaintiffs have again moved for class certification. In an effort to cure the defects in the proposed class denied certification in Moore III, the plaintiffs have narrowed their proposed class. The plaintiffs now move to certify a class on behalf of
Pls.' Mot. for Class Cert. at 2.
In support of their motion for class certification, the plaintiffs offer the report of statistician Dr. Charles Mann, which concludes that the MPP process had an adverse impact on African-American SAs applying for promotion to GS-14 and GS-15 positions during the class period (i.e., 1995 to 2004 for promotions to GS-14 positions and 1995 to 2005 for promotions to GS-15 positions) and a four-year background period (i.e., 1991 to 1994). The defendant moves to exclude Dr. Mann's testimony under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), arguing that Dr. Mann's expert opinions are unreliable and irrelevant.
Rule 702 provides:
Fed.R.Evid. 702. Under Rule 702, district courts are gatekeepers of expert evidence.
Expert testimony is reliable if it is based on scientific knowledge. Id. at 589-90, 113 S.Ct. 2786. "The [reliability] inquiry forces the court to focus on [the expert's] principles and methodology, not on the conclusions that they generate[.]" Meister v. Med. Eng'g Corp., 267 F.3d 1123, 1127 (D.C.Cir.2001) (internal quotation marks omitted). In assessing the expert's methodology, a court may consider "whether the theory or technique had been tested, whether it had been subjected to peer review and publication, the method's known or potential error rate, and the method's general acceptance in the scientific community." Id. at 1127 (citing Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786). "Expert testimony that rests solely on `subjective belief or unsupported speculation' is not reliable." Groobert v. President & Dirs. of Georgetown Coll., 219 F.Supp.2d 1, 6 (D.D.C.2002) (quoting Daubert, 509 U.S. at 590, 113 S.Ct. 2786).
"In general, Rule 702 has been interpreted to favor admissibility." Khairkhwa v. Obama, 793 F.Supp.2d 1, 10 (D.D.C.2011) (citing Daubert, 509 U.S. at 587, 113 S.Ct. 2786; Fed.R.Evid. 702 Advisory Committee's note ("A review of the caselaw after Daubert shows that the rejection of expert testimony is the exception rather than the rule.")). Nonetheless, the proponent of the expert witness — here, the plaintiffs — bears the burden to prove that the expert testimony is reliable by a preponderance of the evidence. Meister, 267 F.3d at 1127 n. 9.
The plaintiffs offer Dr. Mann's report to show that the MPP promotion process had a statistically significant adverse impact on African-American SAs in support of both the plaintiffs' disparate treatment pattern and practice claim and their disparate impact claim. Specifically, Dr. Mann would offer three opinions. First, relying on his "applicant to best qualified list" analysis,
There is no dispute that Dr. Mann is qualified to offer statistical expert testimony.
The plaintiffs assert that all three of Dr. Mann's opinions are relevant to both their disparate treatment pattern and practice claim and their disparate impact claim. The defendant counters that the plaintiffs' claims require different statistical showings. See Reply in Supp. of Def.'s Mot. to Exclude the Test. of Charles R. Mann at 2.
While "[f]unctionally the disparate treatment and disparate impact models have different aims," the same statistical evidence is often relevant to both
Teamsters, 431 U.S. at 339 n. 20, 97 S.Ct. 1843; see also Segar, 738 F.2d at 1267 (explaining that a plaintiff in a pattern and practice case alleging race discrimination may provide evidence "of a disparity in the position of members of the plaintiff class and comparably qualified whites").
"Disparate impact claims ... `involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.' `Proof of discriminatory motive ... is not required under a disparate-impact theory.'" Anderson v. Zubieta, 180 F.3d 329, 338 (D.C.Cir.1999) (second alteration in original) (citation omitted) (quoting Teamsters, 431 U.S. at 335 n. 15, 97 S.Ct. 1843). To establish disparate impact, a plaintiff "must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group." Watson, 487 U.S. at 994, 108 S.Ct. 2777; see also Young v. Covington & Burling LLP, 846 F.Supp.2d 141, 156-57 (D.D.C.2012) ("The plaintiff's evidence of causation must establish that the employment practice `select[s] applicants for hire
Id. Because both the disparate treatment and disparate impact claims can be proven using the same statistical showing, the relevance of Dr. Mann's testimony can be considered for both of the claims at the same time.
Dr. Mann's statistical evidence shows an adverse impact at the individual levels of the MPP process. While the defendant does not dispute that statistical evidence showing an adverse impact at an individual stage is relevant to the plaintiffs' disparate impact claim, the defendant argues that Dr. Mann's testimony is not relevant to the plaintiffs' disparate treatment pattern and practice claim because none of Dr. Mann's conclusions are based on the "relevant statistic" — "a comparison of the promotion rates of qualified (or eligible) African-American and non-African-American special agents." Mem. in Supp. of Def.'s Mot. to Exclude the Test. of Charles R. Mann ("Def.'s Mem. to Exclude Mann Test.") at 17-20. Stated simply, the defendant argues that only a disparity at the bottom line creates an inference of discrimination in a pattern and practice case. However, the Supreme Court impliedly dismissed this argument in Connecticut v. Teal, 457 U.S. 440, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982). In Teal, four African-American employees brought suit claiming that the employer's multi-step promotion process had a disparate impact on African-Americans because the first step in the promotion process, a written examination, had an adverse impact on African-Americans. Id. at 443, 102 S.Ct. 2525. The employer countered that despite African-Americans' poor performance on the written examination, the employer applied "an affirmative-action program in order to ensure a significant number of minority supervisors." Id. at 444, 102 S.Ct. 2525. Thus, the employer argued that its promotion process did not have a disparate impact on the plaintiffs because the "employer has compensated for a discriminatory pass-fail barrier by hiring or promoting a sufficient number of black employees to reach a nondiscriminatory `bottom line.'" Id. at 453, 102 S.Ct. 2525. After considering the purpose of disparate impact claims, the Supreme Court held that, in disparate impact cases, the "bottom line defense" is "no answer" to the plaintiffs' prima facie case of employment discrimination. Id. at 456, 102 S.Ct. 2525.
Although the "bottom line" defense is not applicable in a disparate impact case, the Court in Teal noted that
Id. (emphasis added) (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 580, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978)) (citing Teamsters, 431 U.S. at 339 n. 20, 97 S.Ct. 1843). Although statistics showing "a nondiscriminatory bottom line" can be used to rebut the inference of discrimination, "[a] racially balanced work force cannot immunize an employer from liability for specific acts of discrimination." Furnco, 438 U.S. at 579, 98 S.Ct. 2943. Therefore, statistical evidence showing an adverse impact at a component level may be offered in support of a pattern and practice claim. See United States v. City of New York, 683 F.Supp.2d 225, 249 (E.D.N.Y.2010) (finding that statistical evidence showing statistically significant disparities at individual levels of the employer's hiring process was sufficient to establish a prima facie case that the employer had a pattern and practice of discriminating against African-American applicants).
Here, Dr. Mann seeks to testify that there are statistically significant disparities at the individual stages of the MPP process based on his applicant to best qualified list analysis and his best qualified list to selected analysis. Because his analyses of these stages show disparities between African-American SAs and non-African-American SAs, Dr. Mann's testimony is relevant to the plaintiffs' disparate treatment and disparate impact claims.
Dr. Mann bases his testimony on "pools analyses." Pls.' Opp'n to Mot. to Exclude Mann Test. at 29. "A pools analysis looks to pools of similarly situated employees to determine how the promotion success of a certain pool ... stacks up against that of a control group[.]" McReynolds v. Sodexho Marriott Servs., Inc. (McReynolds II), 349 F.Supp.2d 1, 8 (D.D.C.2004). The statistician must "compare `similarly situated employees' and ... the pools must be properly defined by controlling for a variety of factors[,]" id., such as seniority and education in a non-promotion case, see Coward v. ADT Sec. Sys., Inc., 140 F.3d 271, 276 (D.C.Cir.1998) (Sentelle, J., concurring). In a non-promotion case, the statistician proceeds from the assumption that "absent discriminatory promotion practices, the proportion of the protected group in each of the job classifications and grade levels would approximate the proportion of the protected group with the minimum necessary qualifications for promotion in the employer's labor force as a whole." Davis v. Califano, 613 F.2d 957, 964 (D.C.Cir.1979) (citing Teamsters, 431 U.S. at 339 n. 20, 97 S.Ct. 1843).
Dr. Mann described the application of his methodology. First, he used
Pool analyses can satisfy Daubert. See, e.g., McReynolds v. Sodexho Marriott Servs., Inc. (McReynolds III), 349 F.Supp.2d 30, 45 (D.D.C.2004). The defendant's proffered statistical expert, Dr. Paul White, also used pools analyses for some of his analyses. Pls.' Opp'n to Mot. to Exclude Mann Test. at 29 & n. 25; see also Def.'s Mem. to Exclude Mann Test., Ex. 4, White Report at 7. Dr. Mann's decision to exclude non-competitive best qualified lists "where fewer Agents bid for the position than the number used to create the cut-off score[,]" Pls.' Opp'n to Mot. to Exclude Mann Test. at 30, does not make Dr. Mann's testimony unreliable as the defendant argues, Def.'s Mem. to Exclude Mann Test. at 34-36. Even if the non-competitive lists are among the data relevant to Dr. Mann's analyses, there is "no authority rigidly requiring that an expert review all relevant information in a case in order to have his or her testimony admitted into evidence." SEC v. Johnson, 525 F.Supp.2d 70, 75 (D.D.C.2007). "Indeed, Federal Rule of Evidence 705 specifically `eliminates the prior practice of requiring an expert to set out, specifically, the facts and data underlying an opinion before allowing the expert to testify.'" Id. at 75-76 (citing Ambrosini v. Labarraque, 101 F.3d 129, 132 (D.C.Cir.1996)). Thus, Dr. Mann's failure to review lists he considered
The defendant argues that Dr. Mann's opinions are unreliable because they are not based on statistically significant results. See Def.'s Mem. to Exclude Mann Test. at 27-29. "[G]ross statistical disparities" between African-American SAs and non-African-American SAs alone may raise an inference of discrimination. Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 307-08, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977) (citing Teamsters, 431 U.S. at 339, 97 S.Ct. 1843). "[T]he threshold at which statistical evidence alone raises an inference of discrimination [cannot] be lower than 1.96 standard deviations, whether one views this number as signifying a 5% probability of randomness using a two-tailed approach or a 2.5% probability of randomness using a one-tailed approach." Palmer, 815 F.2d at 96 n. 9. Although "[t]he D.C. Circuit has expressed a preference for two-tailed tests over one-tailed tests" to determine whether statistical evidence alone creates an inference of discrimination in a Title VII case, Moore I, 113 F.Supp.2d at 20 n. 2 (citing Palmer, 815 F.2d at 95), the Circuit "by no means intend[ed] entirely to foreclose the use of one-tailed tests[.]" Palmer, 815 F.2d at 95. Dr. Mann used one-tailed tests and concluded that stages of the MPP process have an adverse impact on African-American SAs where his analyses showed results that were statistically significant at a 2.5% probability of randomness. Although two-tailed tests are favored in Title VII cases, Dr. Mann reliably applied the one-tailed tests and his conclusions followed from his analyses.
Dr. Mann aggregated data across periods of time, a method the defendant criticizes as unreliable because the results are not based upon individual years. See Def.'s Mem. to Exclude Mann Test. at 21-23. In his deposition, Dr. Mann explained that he did not report year-by-year data because he believed that there was "no real significance to the years." Pls.' Opp'n to Mot. to Exclude Mann Test., Ex. 1, Mann Dep. at 260:21-261:6. He also stated that unlike aggregated data, disaggregated annual data may have only yielded "small numbers and tests not powerful enough to detect [a disparity]." Id. "Where, as here, `policies have remained unchanged over a period of time and there have been no substantial changes in the [promotion process], it would be unreasonable to require a plaintiff to break his or her data into year by year subgroups.'" Eldredge v. Carpenters 46 N. Cal. Cntys. Joint Apprenticeship & Training Comm., 833 F.2d 1334, 1339 n. 7 (9th Cir.1987) (quoting D. Baldus & J. Cole, Statistical Proof of Discrimination § 7.1 (1986 Supp.)); see also Lilly v. Harris-Teeter Supermarket, 720 F.2d 326, 336 n. 17 (4th Cir.1983) ("If possible, it is highly preferable to examine the statistical data for the time period in combined form, rather than year by year. Combined data is more likely to demonstrate the `pattern or practice'
In his four analyses, Dr. Mann also aggregated data across vacant positions. In Segar v. Smith, the D.C. Circuit described "repeatedly disaggregating [data] until groups were too small to generate any statistically significant evidence of discrimination" as a "methodological misstep[.]" 738 F.2d at 1286. This is because "if an expert isolates units or groups and runs separate analyses for them, such methodology may mask whether `the overall decision-making process' produces a discriminatory result, whereas analyzing an entire group will indicate whether the identified employment practice was the cause of the disparity." McReynolds II, 349 F.Supp.2d at 15 (quoting Smith v. Xerox, 196 F.3d 358, 368-69 (2d Cir.1999)). Thus, "`[p]ooling data is sometimes not only appropriate but necessary, since statistical significance becomes harder to attain as the sample size shrinks.'" Id. (quoting Coates v. Johnson & Johnson, 756 F.2d 524, 541 (7th Cir.1985)). Dr. Mann's methodology finds support in precedent involving aggregating data in similar situations and is reliable.
Finally, the defendant argues that Dr. Mann's testimony based on his best qualified to selected analysis is unreliable because Dr. Mann should have expected that his multiple analyses would yield some "significant" results as random error. The defendant further argues that Dr. Mann should have conducted additional tests to "determine the likelihood that his results are consistent with ... pure statistical chance[.]" Def.'s Mem. to Exclude Mann Test. at 29-30. The defendant's argument is supported only by the declaration of defendant's proffered expert, Dr. Laura Malowane, "an expert statistician retained by the Secret Service for purposes of this Daubert motion." Id. at 30 n. 9. Because the defendant's disclosure of Dr. Malowane as an expert was untimely, Dr. Malowane's declaration should not be considered.
Because Dr. Mann is qualified to offer his expert testimony and his opinions are relevant and based on reliable methodology, his expert testimony is admissible under Rule 702 and Daubert.
To maintain a class action, the four prerequisites in Rule 23(a) must be met and the case must fall into one of the three categories in Rule 23(b). Fed.R.Civ.P. 23; see also In re Veneman, 309 F.3d 789, 792 (D.C.Cir.2002).
Under Rule 23(a), the party seeking class certification must show that:
Fed.R.Civ.P. 23(a); see also Wal-Mart Stores, Inc. v. Dukes, ___ U.S. ___, 131 S.Ct. 2541, 2548, 180 L.Ed.2d 374 (2011). "Failure to adequately demonstrate any of the four is fatal to class certification." Garcia v. Johanns, 444 F.3d 625, 631 (D.C.Cir.2006).
"[A] Title VII class action, like any other class action, may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied." Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). "Frequently, that `rigorous analysis' will entail some overlap with the merits of the plaintiff's underlying claim." Wal-Mart, 131 S.Ct. at 2551. However, "the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met." Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). In considering a motion for class certification, a court presumes the allegations in the complaint to be true. Stephens v. U.S. Airways Group, Inc., 908 F.Supp.2d 10, 13-14, Civil Action No. 07-1264(RMC), 2012 WL 6086930, at *3 (D.D.C. Dec. 7, 2012).
To obtain class certification, the class must be so numerous that "joinder of all members is impracticable[.]" Fed. R.Civ.P. 23(a)(1); see also Encinas v. J.J. Drywall Corp., 265 F.R.D. 3, 8 (D.D.C. 2010) (citing Taylor v. D.C. Water & Sewer Auth., 241 F.R.D. 33, 37 (D.D.C.2007)). "Typically, a class in excess of 40 members is sufficiently numerous to satisfy this requirement." Lindsay v. Gov't Employees Ins. Co., 251 F.R.D. 51, 55 (D.D.C.2008) (citing 5 Moore's Federal Practice § 23.22[3][a] at 23-63 (3d ed.2002)). However, "[t]here is no specific threshold that must be surpassed in order to satisfy the numerosity requirement[.]" Taylor, 241 F.R.D. at 37; see also Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 330, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980) (explaining
Moore III found the "plaintiffs' proposed class of 120 geographically dispersed members" to be "sufficiently numerous to satisfy Rule 23(a)(1)." 269 F.R.D. at 28. It also found that a class as small as 36 members can satisfy Rule 23(a)'s numerosity prong. Id. Here, the plaintiffs again estimate that the class would contain 120 members who are geographically dispersed. See Mem. of P. & A. in Supp. of Pls.' Mot. for Class Cert. ("Pls.' Mem. for Class Cert.") at 45-46; Pls.' Reply in Support of Mot. for Class Cert. at 5.
The defendant advances several arguments against the plaintiffs' estimate. The defendant claims that the plaintiffs fail to prove numerosity because the plaintiffs' statistical expert, Dr. Mann, found that a statistically significant number of under-promotions occurred only from 1998 to 2000 for GS-14 positions and from 2002 to 2005 for GS-15 positions. Def.'s Opp'n to Pls.' 4th Mot. for Class Cert. ("Def.'s Opp'n to Mot. for Class Cert.") at 44-45. The defendant asserts that given the dearth of statistical evidence showing under-promotions for the remainder of the class period, the "plaintiffs' class must be limited to those who bid for the appropriate promotion in those times periods, shrinking the class to 42." Id. at 45. The defendant also contends that the proposed class must exclude those who have conflicts of interest (i.e., any class member who was involved in the first-level promotion evaluation scores of another putative class member or who rated other putative class members during panel evaluations), id., and class members whose claims are barred for failure to timely exhaust their administrative remedies, id. at 41-42. After the defendant's "required exclusions," the plaintiffs' proposed class would contain only 27 members. Id. at 44-45.
The defendant's arguments do not alter the conclusion that the plaintiffs have satisfied the numerosity requirement because they pertain not to numerosity but to Rule 23(a)'s commonality, typicality, and adequacy of representation requirements. Moreover, as is discussed above, three of Dr. Mann's analyses showed statistically significant disparities for the entire class period. Furthermore, a class of 27 members can still satisfy the numerosity prong where, such as here, joinder is impractical because the class members are geographically dispersed. See Anderson v. Pa. Dep't of Pub. Welfare, 1 F.Supp.2d 456, 461 (E.D.Pa.1998); cf. Gen. Tel. Co. of the Nw., 446 U.S. at 330, 100 S.Ct. 1698 (suggesting that 15 class members is too few for a Title VII class action).
Commonality under Rule 23(a)(2) requires the court to determine whether
In cases where the plaintiffs allege systemic disparate treatment, plaintiffs may demonstrate commonality by providing "`significant proof that an employer operated under a general policy of discrimination... if the discrimination manifested itself in ... promotion practices in the same general fashion[.]'" Wal-Mart, 131 S.Ct. at 2553 (quoting Falcon, 457 U.S. at 159 n. 15, 102 S.Ct. 2364); see also Love v. Johanns, 439 F.3d 723, 728 (D.C.Cir.2006) (explaining that in cases where plaintiffs allege disparate treatment of a class, plaintiffs seeking class certification must "show (i) discrimination (ii) against a particular group (iii) of which the plaintiff is a member, plus (iv) some additional factor that permits the court to infer that members of the class suffered from a common policy of discrimination" (internal quotation marks omitted)). Regarding a complaint of "class-wide discriminatory impact, [plaintiffs] must make a showing sufficient to permit the court to infer that members of the class experienced discrimination as a result of the disparate effect of a facially neutral policy." Garcia, 444 F.3d at 632 (internal quotation marks omitted). To satisfy Rule 23(a)'s commonality requirement, plaintiffs may put forth statistical and anecdotal evidence to support the inference that the defendant-employer operated under a general policy of discrimination and that the discrimination manifested itself in the defendant's challenged policies and procedures. See McReynolds v. Sodexho Marriott Servs., Inc. (McReynolds I), 208 F.R.D. 428, 441 (D.D.C.2002) (citing Wagner v. Taylor, 836 F.2d 578, 592 (D.C.Cir.1987)); see also Wal-Mart, 131 S.Ct. at 2555-56. Here, the plaintiffs offer both statistical and anecdotal evidence.
The plaintiffs rely on Dr. Mann's report to show that the "MPP promotions policy operates to adversely impact class members[.]" Pls.' Mem. for Class Cert. at 49. As is discussed above, Dr. Mann found that for the class period and the four-year background period, the difference between African-American SAs expected to reach a best qualified list in the absence of discrimination and the actual number of African-American SAs who reached a best qualified list, for both GS-14 and GS-15 promotions, was statistically significant. See Pls.' Opp'n to Mot. to Exclude Mann Test. at 5; see also Mann Decl. ¶¶ 36-43. Dr. Mann also found that for the class period and the four-year background period, the consideration of rank by MPP score on the best qualified list disproportionately disadvantaged African-Americans, for both GS-14 and GS-15 promotions; the disparity in African-American SAs mean rank on best qualified
The defendant attacks Dr. Mann's report on several grounds. The defendant makes many of the same arguments which were addressed and dismissed above. The defendant also asserts that because Dr. Mann's best qualified to selected analysis shows "disparities in ... two distinct time frames [for GS-14 and GS-15 positions, the analysis] actually rebut[s] any inference of a `common' discriminatory process because the same officials decided which agents to promote to GS-14 and GS-15 positions at any one time." Def.'s Opp'n to Mot. for Class Cert. at 60. Even assuming that is true, the plaintiffs can still establish commonality because Dr. Mann's other three analyses show statistically significant disparities for the entire class period. For example, Dr. Mann's applicant to best qualified list analysis shows that a stage of the MPP process had an adverse impact on African-American SAs during the class period. Thus, there is at least one aspect common to the class for the entire class period. As such, Dr. Mann's report is sufficient to create an inference that the Secret Service had a common policy of discrimination. See Anderson, 180 F.3d at 339-40.
The plaintiffs also offer anecdotal evidence in the form of declarations of named plaintiffs and putative class members alleging that they were discriminated against by the Secret Service. In their declarations, SAs assert that the Peer Panel and Second Level Panel "discriminatorily diminished and discounted" their "demonstrated skills and qualifications" causing them to receive lower MPP scores than non-African-American SAs, Pls.' Mem. for Class Cert. at 50, that they were denied promotions as a result of their low MPP scores, id. at 51, and that the MPP process "empower[ed] the Advisory Board and Director to discriminate against African-American Agents by selectively employing criteria to recommend white Agents for promotion over qualified African-American candidates," id. at 52; see also id. at 52-56. The anecdotal evidence, which is summarized in Moore III, 269 F.R.D. at 31-32, brings "the cold numbers" of Dr. Mann's statistical evidence "convincingly to life." Teamsters, 431 U.S. at 339, 97 S.Ct. 1843. The plaintiffs' statistical and anecdotal evidence raises an inference of discrimination that is manifested through the MPP process. Thus, the plaintiffs have carried their burden of establishing commonality.
"Typicality requires that the claims of the representative be typical of those of the class." Taylor, 241 F.R.D. at 44 (citing Fed.R.Civ.P. 23(a)(3)). "Typical" does not mean identical. See Encinas, 265 F.R.D. at 9 ("A plaintiff's claims can be typical of those of the class even if
Wal-Mart, 131 S.Ct. at 2551 n. 5 (quoting Falcon, 457 U.S. at 157 n. 13, 102 S.Ct. 2364).
In Moore III, the plaintiffs' proposed class did not satisfy Rule 23(a)'s typicality requirement for two reasons. First, the proposed class included SAs who were deterred from ever bidding but none of the class representatives had been wholly deterred from bidding. Second, "the class representatives' claims [were] not typical of any putative class member who was eligible for a promotion and received it on her first bid." Moore III, 269 F.R.D. at 33. In their revised class definition, the plaintiffs exclude deterred bidders and SAs who were eligible for promotion and promoted on their first bid. There is no dispute that these changes cured the typicality defects identified in Moore III. Def.'s Opp'n to Mot. for Class Cert. at 46 n. 38. Thus, the plaintiffs' proposed class satisfies the typicality requirement of Rule 23(a).
The fourth prerequisite for class certification requires the court to determine whether the proposed representatives will fairly and adequately represent the interests of the class. Taylor, 241 F.R.D. at 45. "`Two criteria for determining the adequacy of representation are generally recognized: 1) the named representative must not have antagonistic or conflicting interests with the unnamed members of the class, and 2) the representative must appear able to vigorously prosecute the interests of the class through qualified counsel.'" Twelve John Does v. District of Columbia, 117 F.3d 571, 575-76 (D.C.Cir.1997) (quoting Nat'l Ass'n of Reg'l Med. Programs, Inc., 551 F.2d 340, 345 (D.C.Cir.1976)).
When there is a dispute as to the existence of a conflict of interest between class members, a court must bear in mind that "[c]lass members whose interests are antagonistic in fact to, or even `potentially conflicting' with, the interests of the ostensibly representative parties cannot be bound, consistent with the requirements of due process to an adjudication taken in their name." Phillips v. Klassen, 502 F.2d 362, 366 (D.C.Cir.1974) (quoting Hansberry v. Lee, 311 U.S. 32, 44, 61 S.Ct. 115, 85 L.Ed. 22 (1940)). In employment discrimination cases, the fact that some class members are supervisors does not constitute a per se conflict of interest. However, it does pose a serious problem where class plaintiffs have accused other class members of the same type of discrimination from which they seek relief. See Wagner, 836 F.2d at 595; McReynolds I, 208 F.R.D. at 447.
In Moore III, the plaintiffs failed to "propose[] for consideration a class free of conflicts of interests[.]" Moore III, 269 F.R.D. at 35. The record demonstrated that there were "direct accusations of discrimination
Here, there is no dispute that counsel are competent to represent the class's interest. However, there is again a dispute regarding a potential conflict of interest among class plaintiffs and class members. The plaintiffs argue that the class meets the final requirement of Rule 23(a) because "[p]laintiffs and the class members... have the same interests": "to prove the existence of a pattern or practice of discrimination with respect to the Secret Service's promotions policy and establish that its promotions policy and practices have a disparate impact on class members." Pls.' Mem. for Class Cert. at 63. The plaintiffs further contend that their revised class definition is free from conflicts and excludes all of the class members identified in Moore III as having been directly accused of discrimination. Id. at 65-67. Because there are no direct accusations of discrimination within the class, the plaintiffs assert that "the inclusion within the class of supervisors or class members who participated on panels evaluating other class members cannot defeat adequacy of representation." Id. at 70. The defendant counters that the plaintiffs cannot satisfy the adequacy of representation requirement because the proposed class contains "supervisors who actively participated in an allegedly discriminatory promotions process against [other putative class members] who were seeking promotions." Def.'s Opp'n to Mot. for Class Cert. at 66. To support its argument, the defendant points to several instances where a class member generally alleged that he received a discriminatorily low score from the Peer Panel or Second Level Panel and a supervisory putative class member was a member on that panel. See id. at 69-70.
The record demonstrates that several potential class members were directly involved in the Peer Panel or Second Level evaluation process. For example, between 1995 and 2005, at least fourteen supervisory putative class members participated as Peer Panel or Second Level Panel members rating other putative class members for promotion to GS-14 and GS-15 positions. Id. at 68 (citing id., Ex. 17 (Decl. of Karen Waring ¶ 32)). The record is silent with respect to any direct accusations of discrimination within the newly constituted class relevant to the plaintiffs' employment discrimination claim.
The plaintiffs claim that the class satisfies the requirements of Rule 23(b)(3), which provides that a class action may be maintained if "the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R.Civ.P. 23(b)(3). In determining whether a proposed class meets the Rule 23(b)(3) requirements, a court should consider:
Fed.R.Civ.P. 23(b)(3).
To establish Rule 23(b)(3)'s predominance requirement, the plaintiffs must show that the issues identified as common in the Rule 23(a) commonality inquiry predominate over non-common issues for both their pattern and practice claim and their disparate impact claim. See In re Vitamins Antitrust Litig., 209 F.R.D. 251, 262 (D.D.C.2002). Generally speaking, "predominance is met when there exists generalized evidence which proves or disproves an element on a simultaneous, class-wide basis, since such proof obviates the need to examine each class members' individual position." Cohen v. Chilcott, 522 F.Supp.2d 105, 116 (D.D.C.2007) (internal quotation marks omitted); see also Encinas, 265 F.R.D. at 10 ("If the questions of law and fact identified as common to the named plaintiffs and members of the class predominate over any non-common issues, the requirement is satisfied.").
The plaintiffs argue that in light of the "centrality of Plaintiffs' statistical evidence of the discriminatory nature of the MPP promotions policy," to both of their claims, they have met the predominance requirement. Pls.' Mem. for Class Cert. at 75. Here, the common issues of whether the MPP promotions process discriminates against African-American SAs and whether the Secret Service has a pattern and practice of race discrimination which the plaintiffs will try to prove through their statistical evidence predominate over individual issues. See, e.g., Jarvaise, 212 F.R.D. at 4. All members of the class will rely on the same statistical evidence to make the same claim: that the MPP process discriminates against African-American SAs seeking promotions to GS-14 and GS-15 positions. The only apparent non-common factual issues are whether there were legitimate, nondiscriminatory reasons not to promote a specific SA. See Def.'s Opp'n to Mot. for Class Cert. at 81-82. These issues, however, are not germane to the liability stage of a pattern and practice claim,
"`Rule 23(b)(3) favors class actions where common questions of law or fact permit the court to consolidate otherwise identical actions into a single efficient unit.'" Encinas, 265 F.R.D. at 10 (quoting Bynum I, 214 F.R.D. at 40); see also In re Nifedipine Antitrust Litig., 246 F.R.D. 365, 371 (D.D.C.2007) ("[C]ertification is appropriate in cases in which a class action would promote judicial efficiency and uniformity of decision as to persons similarly situated." (internal quotation marks omitted)); In re Lorazepam & Clorazepate Antitrust Litig., 202 F.R.D. 12, 31 (D.D.C.2001) (explaining that a class action is superior because "[a] class action would also provide inclusion of those members who would otherwise be unable to afford independent representation").
The alternative method of resolving the plaintiffs' claims is through individual, single-plaintiff suits. A class action will be more efficient than individual actions because all of the cases will require the courts to determine whether the MPP promotions process is discriminatory. Moreover, a class action will promote uniformity in decisions. The plaintiffs also argue that a class action is superior because many putative class members will not pursue an individual suit "in light of the substantial expert costs associated with documenting the MPP's discriminatory nature and impact[.]" Pls.' Mem. for Class Cert. at 80. The defendant counters that the hope of high damages awards is sufficient to compel plaintiffs to bring individual suits. The Supreme Court has acknowledged that "`[t]he policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights.'" Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir.1997)). However, "the text of Rule 23(b)(3) does not exclude from certification cases in which individual damages run high[.]" Id. Moreover, the defendants cite no evidence for their assertion that the plaintiffs may potentially recover large damage awards. At any rate, the interests of efficiency and uniformity support a finding that a class action is a superior method of adjudicating the plaintiffs' claims. Thus, the class will be certified under Rule 23(b)(3).
If a court certifies a class under Rule 23(b)(3),
Fed.R.Civ.P. 23(c)(2)(B). The plaintiffs have not submitted a proposed notice that satisfies all requirements of Rule 23(c)(2). Accordingly, the plaintiffs will be ordered to file a proposed order.
The plaintiffs also seek an order appointing current plaintiffs' counsel as class counsel. Rule 23(g) requires a court to appoint
Johnson v. District of Columbia, 248 F.R.D. 46, 58 (D.D.C.2008) (internal quotation marks omitted). Further, a "court may consider any `other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class.'" Id. (quoting Fed.R.Civ.P. 23(g)(1)(B)). There is no dispute as to whether the plaintiffs' class counsel are appropriate, and there is no indication that class counsel lack the experience and knowledge required to represent the class. Therefore, plaintiffs' current counsel will be appointed as class counsel.
The plaintiffs have shown by a preponderance of the evidence that Dr. Charles Mann is qualified to offer expert statistical testimony and that his testimony is relevant and reliable. The plaintiffs have also satisfied Rule 23(a)'s prerequisites and Rule 23(b)(3)'s requirements for class certification. Accordingly, it is hereby
ORDERED that the defendant's motion [703] to exclude the testimony of Dr. Charles Mann be, and hereby is, DENIED. It is further
ORDERED that the plaintiffs' motion [677] for class certification under Rule 23(b)(3) be, and hereby is, GRANTED. The class consists of all current and former African-American Special Agents who bid for promotion to a GS-14 position from 1995 to 2004 and were not promoted to GS-14 on the first bid list on which they bid; and all current and former African-American Special Agents who bid for promotion to a GS-15 position from 1995 to 2005 and were not promoted to GS-15 on the first bid list on which they bid; but excluding Special Agents who served as an Assistant Director, a Deputy Director, or the Director of the Secret Service during the class period. The class is certified to adjudicate whether the Secret Service has a pattern and practice of engaging in race discrimination in making promotions decisions to GS-14 Special Agent positions from 1995 to 2004 and GS-15 Special Agent positions from 1995 to 2005, and whether the Secret Service's Merit Promotion Plan had an adverse impact on African-American Special Agents seeking promotion to GS-14 positions from 1995 to 2004 and GS-15 positions from 1995 to
ORDERED that the plaintiffs file by March 18, 2013 a proposed order that complies with the requirements in Rule 23(c)(2)(B).
The D.C. Circuit has not announced whether initial disclosures under Rule 26(a)(1) require a party to disclose expert witnesses who will not testify at trial, and courts in other districts are split. Compare Musser v. Gentiva Health Servs., 356 F.3d 751, 756-57 (7th Cir. 2004) (explaining that Rule 26(a)(1) applies to fact witnesses and Rule 26(a)(2) applies to expert witnesses), with Reed v. Smith & Nephew, Inc., 527 F.Supp.2d 1336, 1348 (W.D.Okla.2007) (explaining that Rule 26(a)(1) bars undisclosed expert witness testimony offered in support of defendant's motion to exclude testimony by plaintiff's expert because "[t]he identity of a de facto expert, whose testimony serves to contravene that of Plaintiffs' expert, is certainly information that Defendant has used `to support its claim[]' that [plaintiff's expert's] testimony should be excluded"). However, courts that have considered whether an undisclosed expert can support a motion to exclude an expert's testimony under Daubert agree that "`courts should not permit the [movant] to obtain a hearing on a motion in limine by relying on affidavits from experts unless their identity and reports have been supplied to the [proponent of the expert witness] in the course of discovery and the [proponent] had an opportunity to depose them.'" In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 739 (3d Cir. 1994) (internal alterations omitted) (quoting Margaret A. Berger, Procedural Paradigms for Applying the Daubert Test, 78 Minn. L.Rev. 1345, 1372 (1994)); see, e.g., Reed, 527 F.Supp.2d at 1347-48; Nightlight Sys., Inc. v. Nitelites Franchise Sys., Inc., Civil Action No. 1:04-CV-2112-CAP, 2007 WL 4563875, at *9 (N.D.Ga. May 11, 2007) (agreeing with the "Third Circuit's preference for the disclosure and deposition of expert witnesses before any Daubert hearing" articulated in Paoli). In Paoli, the Third Circuit explained that experts who testify at Daubert hearings should be subject to discovery since
Paoli, 35 F.3d at 739. The court added that "fairness [also] suggests that each side should have an equal opportunity to depose the other side's experts." Id. After all, some of the purposes of Rule 26 are to "avoid surprise and the possible miscarriage of justice [and] to disclose fully the nature and scope of the controversy[.]" See Wright, Miller, & Kane, 8 Federal Practice and Procedure 22-23 (3d ed.2010); see also Pierce v. Pierce, 5 F.R.D. 125, 125 (D.D.C.1946).
"Rule 37(c)(1) is a self-executing sanction[.]" Norden v. Samper, 544 F.Supp.2d 43, 49 (D.D.C.2008) (internal quotation marks omitted). "[T]he overwhelming weight of authority is that preclusion is required and mandatory absent some unusual or extenuating circumstances — that is, a `substantial justification.'" Elion v. Jackson, Civil Action No. 05-0992(PLF), 2006 WL 2583694, at *1 (D.D.C. Sept. 8, 2006) (quoting Klonoski v. Mahlab, 156 F.3d 255, 269, 271 (1st Cir. 1998)). The proponent of the evidence bears the burden of showing that the failure to disclose the evidence "was substantially justified or is harmless," Fed.R.Civ.P. 37(c). See Norden, 544 F.Supp.2d at 50.
Here, Dr. Mann's declaration that Dr. Malowane attacks was disclosed on September 28, 2007. The defendant had until November 27, 2007 to disclose its expert reports. The report the defendant submitted on November 27, 2007 from its expert, Dr. White, acknowledged Dr. Mann's declaration but did not disclose the new detailed critique contained in Dr. Malowane's declaration that was not disclosed until 2012, well beyond the 2008 close of discovery. The defendant asserts that its non-disclosure was harmless because the plaintiffs should have asked to depose Dr. Malowane before filing their opposition brief. Reply in Support of Def.'s Mot to Exclude Test. of Charles R. Mann at 24 n. 6. Whether the disclosure this late in the case newly attacking an issue raised years ago did or did not violate Rule 26, it certainly was not in keeping with fair opportunities to depose an opponent's expert during the discovery period. Moreover, discovery after the deadline hinders the ability "to move the case expeditiously forward from the end of discovery, through dispositive motions, to pre-trial and trial." Coles v. Perry, 217 F.R.D. 1, 5 (D.D.C. 2003). The defendant has not shown that its failure to disclose Dr. Malowane was substantially justified or harmless, and Dr. Malowane's declaration should not be considered in support of the defendant's Daubert motion.
