ARTIS, et al v. GREENSPAN
MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on September 29, 2014. (lcegs2)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CYNTHIA ARTIS, et al.,
Civil Action No. 01-400 (EGS)
JANET L. YELLEN,
Plaintiffs bring this lawsuit on behalf of a putative class of
African-American and Native-American secretaries and clerical
employees currently or formerly employed by the Board of
Governors of the Federal Reserve System (“Federal Reserve
Board”) who allege that they have suffered racial
discrimination. The parties to this case have engaged in a
prolonged period of class discovery, during which the plaintiffs
largely refused to respond to written discovery requests and
declined entirely to appear for depositions. As a result, the
Court compelled their participation in discovery.
After class discovery closed, plaintiffs asserted that the
defendant had wrongly withheld certain information. The Court
rejected these arguments in 2012, when plaintiffs filed a motion
to compel and failed to identify any discovery request to which
the defendant did not properly respond. Plaintiffs repeatedly
sought reconsideration of that Order. Each time, they made
arguments that the Court had previously rejected or that could
have been raised in the original motion to compel. Plaintiffs’
motion for class certification contains yet more requests for
reconsideration of these discovery rulings.
Once those arguments are cleared away, little remains of
plaintiffs’ motion, which cited not a single legal decision
related to Federal Rule of Civil Procedure 23. Indeed,
plaintiffs presented almost no evidence or argument regarding
Rule 23. The Court has examined the record and found nothing to
indicate that plaintiffs’ injuries stem from any common action,
policy, or practice of the Federal Reserve Board, and the
testimony of each plaintiff confirms that their claims are
unique and individualized. Accordingly, upon consideration of
the motion for class certification, the response and reply
thereto, the applicable law, and the entire record, the Court
DENIES plaintiffs’ motion. The Court also considers the
plaintiffs’ motion to supplement the record, the response and
reply thereto, and DENIES that motion.
The Federal Reserve Board’s Personnel Practices.
The Federal Reserve Board is an independent federal agency
that is organized into ten divisions and five offices. See
Declaration of Christine M. Fields (“Fields Decl.”), ECF No.
213-2 ¶¶ 4–5, 7. Each division is managed by a Division
Director, who is “afforded considerable autonomy in regard to
the structure, staffing and operation of their Division.” Id. ¶
6. Accordingly, “personnel practices in regard to such things as
performance evaluations, promotions, and selections for vacant
positions can and do vary significantly from division to
division.” Id. This applies to a variety of practices:
Supervision: The manner in which secretaries and clerical
staff are supervised varies widely. “In some divisions, one
manager is responsible for supervision of all secretaries
and clerical workers . . . [i]n others, supervision of
secretaries and clerical workers is divided up among
several or many managers.” Id. ¶ 9.
Performance Evaluations: All Federal Reserve Board
employees are reviewed annually, but “[e]ach Division
Director determines the evaluation format as well as the
structure [of the evaluation].” Id. ¶¶ 10–11. In some, a
clerical worker may receive an evaluation that is the
result of input from each individual that worker supports;
in others, a single individual may complete the evaluation.
See id. ¶ 11.
Salary and Cash Awards: Federal Reserve Board employees are
compensated with a salary, which may be increased by merit
increases. See id. ¶ 12. Employees may also be given cash
awards “at the discretion of their respective Division
Director.” Id.; see also id. ¶ 13 (“In some divisions, the
Division Director may tie these awards to . . . performance
ratings while in other divisions the Division Director may
earmark cash award funds to reward successful completion of
Promotions: Promotion decisions are also delegated to the
individual Division Director. See id. ¶ 16. “Employees . .
. are not promoted on any fixed schedule but rather are
promoted based on the performance criteria set by the
division, the needs of the division and the individualized
assessment of the secretarial and clerical employee’s
skills and performance.” Id.
Although the preceding personnel decisions are largely within
the discretion of lower-level managers, the Federal Reserve
Board has a general Equal Employment Opportunity policy, which
provides that “the Board prohibits discrimination in employment
on the basis of race, color, religion, sex, national origin,
age, disability, or genetic information, and promotes the full
realization of equal employment opportunity . . . through a
continuing affirmative program.” Id. ¶ 8.
The Plaintiffs and Their Claims.
Of the sixteen plaintiffs who brought this lawsuit, fourteen
remain in the case.1 They are each secretaries or clerical
employees currently or formerly employed by the Federal Reserve
Board. See Fourth Am. Compl., ECF No. 127 ¶ 5. All are AfricanAmerican, except for Linda Proctor, who is a Native American.
See id. ¶¶ 5, 44. The plaintiffs propose to bring a class
challenge to the defendant’s allegedly discriminatory treatment
of African-American and Native-American secretaries and clerical
employees. Plaintiffs claim that the class has experienced
discrimination in five areas: salary, cash awards, promotions,
performance reviews, and career-transition agreements.
Plaintiffs never tie these allegations to any common cause,
however, and each plaintiff’s experience differs substantially.
Donna Love-Blackwell’s claims were dismissed on April 5, 2013.
See Order, ECF No. 178. Plaintiffs now request that Crystal Clay
be dismissed and the Court GRANTS that request.
No plaintiff appears to assert discrimination in connection
with all five practices, and many admit to having no evidence
that they were treated unfavorably in connection with one or
more of the challenged practices. All but Linda Proctor either
did not receive a career-transition agreement or did not allege
discrimination in connection with one.2 Nine plaintiffs testified
that most or all of their performance reviews were fair. See
Adams Dep. at 56:9–11; Cohen Dep. at 80:2–5; Dorey Dep. at 62:8–
63:19; Ellis Dep. at 303:21–304:3; Hill Dep. 227:19–228:8; Logan
Dep. at 229:10–14; Matthews Dep. at 113:5–12; Deposition of
Linda Proctor (“Proctor Dep.”), ECF No. 213-1 at 57:22–58:3;
Williams Dep. at 18:11–18. Five plaintiffs testified that they
did not allege discrimination in connection with salary
increases, or that they could not identify any Caucasian
employee who was paid more. See Cohen Dep. at 77:11–14, 118:8–
See Deposition of Tracy Newton-Adams (“Newton-Adams Dep.”), ECF
No. 213-1 at 23:23–24:1; Deposition of Cynthia Artis (“Artis
Dep.”), ECF No. 213-1 at 338:18–339:8; Deposition of Barbara
Carter (“Carter Dep.”), ECF No. 213-1 at 126:7–9; Deposition of
Sheryl Cohen (“Cohen Dep.”), ECF No. 213-1 at 115:3–10;
Deposition of Donna Dorey (“Dorey Dep.”), ECF No. 213-1 at
158:19–159:5; Deposition of Sharon Ellis (“Ellis Dep.”), ECF No.
213-1 at 301:3–5; Deposition of Kimberly Hardy-Barnes (“HardyBarnes Dep.”), ECF No. 213-1 at 136:4–15; Deposition of
Earnestine Hill (“Hill Dep.”), ECF No. 213-1 at 233:17–21,
274:5–11; Deposition of Sharon Logan (“Logan Dep.”), ECF No.
213-1 at 272:15–273:5; Deposition of Kathleen Matthews
(“Matthews Dep.”), ECF No. 213-1 at 122:18–19; Deposition of
Michelle McGhee (“McGhee Dep.”), ECF No. 213-1 at 144:16–145:14;
Deposition of Georgianna Terrell (“Terrell Dep.”), ECF No. 213-1
at 65:15–18; Deposition of Yvette Williams (“Williams Dep.”),
ECF No. 213-1 at 33:22–35:16.
11; Dorey Dep. at 49:8–10; Hill Dep. at 78:13–16; Matthews Dep.
at 87:15–22; McGhee Dep. at 98:22–99:3. With respect to cash
awards, six plaintiffs were unsure if anyone had received higher
awards than they had. See Adams Dep. at 49:24–50:1; Cohen Dep.
at 78:5–9; Dorey Dep. at 49:5–7; Matthews Dep. at 98:5–7; McGhee
Dep. at 69:21–70:6; Terrell Dep. at 84:15–18. Finally, many
plaintiffs testified that they were regularly promoted,
including one who was promoted into a management position,
another who was promoted to the highest secretarial position in
her department, and a third who never applied for a promotion.
See Artis Dep. at 129:18–21; Ellis Dep. at 216:17–217:8; HardyBarnes Dep. at 85:2–7; Hill Dep. at 344:2–22; Williams Dep. at
Plaintiffs also provide no evidence to show that their claims
of individual discrimination stem from a common source. The
record contains excerpts of the plaintiffs’ depositions, which
confirm that decisions related to the challenged practices are
devoted to the discretion of dozens, if not hundreds, of lowlevel supervisors, who act in a largely subjective manner. See,
e.g., Artis Dep. at 158:12–19 (decisions were “subjective
amongst the mangers”; “it all depended on what manager you
worked for”).3 For example, testimony revealed that the process
See also id. at 99:1–12, 147:4–8, 206:8–9, 258:1–3, 329:1–7;
Ellis Dep. at 256:15–18 (treatment is “very subjective based on
for making decisions regarding cash awards varied substantially.
See Hill Dep. at 270:7–16 (each Division “makes their own
choice” regarding cash awards); Carter Dep. at 70:19–71:6 (in
the Audit Review Section of the Bank Operations Division, cash
awards are “very rare”); Ellis Dep. at 208:16 (in the Legal
Division, “everybody gets cash awards”). Nor is there evidence
that all supervisors act in a uniform manner. Many plaintiffs
stated that some of their supervisors discriminated against
them, but that many did not.4
The History of This Lawsuit.
This case has its roots in a lawsuit that was filed in 1996.
See Artis v. Greenspan, No. 96-2105 (D.D.C. filed Sept. 11,
1996). In that case, a group of African-American secretaries
employed by the Legal Division of the Federal Reserve Board
your manager”); Hardy-Barnes Dep. at 20:16–21:5 (the Federal
Reserve Board had a “totally . . . subjective policy,” which
“depends on each individual supervisor . . . to apply that
policy to their employees”); Hill Dep. at 230:22–231:3; Logan
Dep. at 75:13–76:3, 103:16–19, 230:1–3, 274:19–22 (supervisors’
decisions were “very subjective,” including decisions regarding
cash rewards, merit increases, and performance reviews);
Williams Dep. at 47:8–12.
See Artis Dep. at 208:2–6; Carter Dep. at 29:3–9; Cohen Dep. at
111:10–19; Dorey Dep. at 31:6–20, 58:4–8, 105:13–17, 125:5–11,
187:5–16; Ellis Dep. at 257:14–21; Hardy-Barnes Dep. at 21:12–
15; Hill Dep. at 210:17–211:2, 212:22–213:7, 230:22–231:3,
248:6–7; Logan Dep. at 62:7–9, 178:20–179:2, 187:4–12, 189:13–
22, 196:7–9, 206:15–20, 216:8–17, 220:12–20, 255:3–256:3;
Matthews Dep. at 34:16–35:16, 55:18–56:6, 109:19–22; McGhee Dep.
at 75:16–22, 89:20–90:3, 164:14–18, 187:19–188:3; Terrell Dep.
alleged that they had suffered racial discrimination. The
district court dismissed that case for failure to exhaust
administrative remedies and the D.C. Circuit affirmed. See Artis
v. Greenspan, 158 F.3d 1301 (D.C. Cir. 1998). In the wake of
that dismissal, plaintiffs filed this case.5
The Federal Reserve Board quickly moved to dismiss for failure
to exhaust administrative remedies. In light of factual disputes
regarding administrative counseling sessions that were relevant
to that motion, this Court found it “appropriate to permit
plaintiffs to conduct . . . limited . . . discovery” on the
topic. Artis v. Greenspan, 223 F. Supp. 2d 149, 155 (D.D.C.
2002). After contentious discovery, the defendant renewed its
motion to dismiss. See Second Mot. to Dismiss, ECF No. 40.
On January 31, 2007, this Court granted the defendant’s
motion. See Artis v. Greenspan, 474 F. Supp. 2d 16 (D.D.C.
2007). The Court denied plaintiffs’ motion for reconsideration
of that decision on March 2, 2009. See Artis v. Bernanke, 256
F.R.D. 4 (D.D.C. 2009). Plaintiffs appealed these Orders and the
D.C. Circuit reversed. See Artis v. Bernanke, 630 F.3d 1031
(D.C. Cir. 2011). After the Circuit’s Mandate issued, the
parties submitted proposed schedules for further proceedings and
The plaintiffs filed an earlier, all but identical, lawsuit on
August 3, 1999. See Artis v. Greenspan, No. 99-2073 (D.D.C.
filed Aug. 3, 1999). The cases were ultimately consolidated
under this case number. See Order, ECF No. 8.
this Court issued a Scheduling Order. See Scheduling Order, ECF
No. 95. That Order divided the case into three phrases, the
first of which was class certification. Id. at 2. The Court
scheduled class discovery to last until July 31, 2012, and
defined it to include “any discovery that is relevant under Fed.
R. Civ. P. 26, to class certification issues arising under Fed.
R. Civ. P. 23.” Id. at 2, 3.
The Class Discovery Period.
During class discovery, the plaintiffs largely failed to
respond to the defendant’s discovery requests and refused
entirely to appear for properly noticed depositions. Plaintiffs
also “did not notice any depositions and, specifically, did not
seek to take a Rule 30(b)(6) deposition.” Order, ECF No. 184 at
2. Plaintiffs did submit three sets of written discovery
requests to the defendant, however. The Federal Reserve Board
provided written responses to each set, and raised various
objections to many of plaintiffs’ requests. See Def.’s Responses
to Pls.’ First Set of Written Discovery, ECF No. 212-4; Def.’s
Responses to Pls.’ Second Set of Written Discovery, ECF No. 2125; Def.’s Response to Pls.’ Third Set of Written Discovery, ECF
No. 212-6. Defendant also conducted a rolling document
production, which culminated in the production of personnel data
from the years 1988–2011. See Letter, ECF No. 128-6 at 2.
Both parties approached the close of class discovery
dissatisfied. On July 27, 2012, the defendant moved to compel
the plaintiffs to provide full written responses to discovery
requests and to appear for depositions. See Mot. to Compel, ECF
No. 120. On August 17, 2012, plaintiffs moved to compel the
defendant to provide additional personnel data and to hold an
informal conference regarding its data, but they identified no
discovery request to which defendant had not properly responded.
See Pls.’ Mot. to Compel, ECF No. 123. The Court addressed these
motions during a hearing on October 10, 2012, which was
summarized in a subsequent Order:
[T]he Court granted defendant’s motion to compel
plaintiffs’ depositions and other discovery requests
with which plaintiffs did not comply. The Court denied
plaintiffs’ cross-motion to compel, finding that
plaintiffs had not properly requested the information
that they alleged had been withheld. With respect to
plaintiffs’ arguments regarding a “conference” with
certain employees of defendant, the Court found that
plaintiffs had not properly noticed the deposition of
those employees. The Court noted that plaintiffs had
not served a 30(b)(6) notice of deposition, which
would have been a possible avenue for obtaining such
Order, ECF No. 184 at 2–3; see also Order, ECF No. 139
(memorializing the Court’s October 10, 2012 oral rulings).6 Even
during the October 10, 2012 hearing, plaintiffs “did not attempt
During the October 10, 2012 hearing, the Court also ordered
plaintiffs’ counsel to pay defendant’s expenses, including
attorneys’ fees, incurred in relation to plaintiffs’ failures to
produce documents and appear for depositions and in litigating
the defendant’s motion to compel. See Order, ECF No. 139 at 2.
to identify any discovery requests to which defendant failed to
respond.” Order, ECF No. 199 at 2.
On October 22, 2012, even though class discovery had closed
three months earlier, the plaintiffs moved for leave to take
five depositions. See Pls.’ Mot. to Take Depositions, ECF No.
140. The Court granted this request in part, “permit[ting]
plaintiffs to serve one out-of-time Rule 30(b)(1) or 30(b)(6)
notice of deposition on defendant, subject to . . .
limitations.” Minute Order of November 20, 2012. The Court
limited the scope of the deposition to questions about (1) data
previously produced by the Federal Reserve Board and (2)
documents that were not produced but had allegedly been properly
requested in timely served document requests. See id.
On December 19, 2012, the defendant moved for a protective
order, arguing that plaintiffs had issued a deposition notice
that did not comply with these limitations. See Def.’s Mot. for
Protective Order, ECF No. 160. This Court agreed, noting that
plaintiffs’ notice “far exceed[ed]” the limitations. See Minute
Order of January 18, 2013. The Court permitted the plaintiffs to
try again, gave detailed guidance as to the proper form for the
notice, and emphasized that “[t]his will be plaintiffs’ final
opportunity . . . . If the revised 30(b)(6) notice fails to
comply with this Order, it will be stricken with prejudice.” Id.
On February 12, 2013, the defendant moved for a protective
order regarding plaintiffs’ revised notice. See Def.’s Second
Mot. for Protective Order, ECF No. 169. This Court found that
the amended notice was “a confusing collection of allegations,
cross-references, and attachments,” which “request[ed]
information far beyond the scope of the Court’s Orders.” Order
ECF No. 184 at 11, 12. The Court reiterated that it had imposed
limitations on the scope of the deposition for a reason:
“Plaintiffs forfeited the right to seek depositions on broadranging topics relevant to class certification when they failed
to serve a single notice of deposition during the class
discovery period.” Id. at 14.7 Accordingly, the Court granted the
defendant’s second motion for a protective order, recognized the
“heavy burden placed on defendant in having to respond to
The Court also rejected plaintiffs’ argument that they could
take unlimited discovery due to the D.C. Circuit’s prior opinion
in this case. See id. at 14–15. In the passage cited by
plaintiffs, the D.C. Circuit stated that government agencies
ought not “demand excessively detailed support for a classwide complaint alleging a pattern and practice of subtle
financial and professional discrimination” in connection with
any administrative counseling requirement. Artis, 630 F.3d at
1035 (citations omitted). Requiring such support would put the
cart before the horse, the Circuit found, because “class-wide
claims of systemically depressed salaries, performance ratings,
advancement opportunities, and the like can often be proven only
by a statistical comparison of the employer’s treatment of the
class to its treatment of non-minority employees[, which]
[u]sually . . . will be possible only after the employees obtain
data from their employer, whether informally or through
discovery.” Id. “What is implicit in this statement,” this Court
emphasized, “is that the discovery must be properly requested.”
Order, ECF No. 184 at 14–15.
plaintiffs’ successive, failed attempts to serve a Rule 30(b)(6)
Notice of Deposition,” and concluded that “plaintiffs have had
enough opportunities to formulate a proper 30(b)(6) Notice” and
therefore “are not entitled to any further opportunities to
amend their 30(b)(6) Notice.” Id. at 15, 16.
As they were seeking to take untimely depositions, plaintiffs
also sought reconsideration of the Court’s October 10, 2012
Order denying their motion to compel. Their first request
largely raised arguments this Court had previously rejected. See
Pls.’ Mot. to Reconsider, ECF No. 141. In denying that motion,
the Court also rejected plaintiffs’ request for “an evidentiary
hearing to allow their expert to explain precisely why
plaintiffs claim that the electronic data already produced is
‘unusable.’” Order, ECF No. 194 at 8. The Court noted that
plaintiffs’ motion to compel “did not set forth in any detail
why the data was unusable or why the Board’s production was
otherwise deficient” and “failed to specify a discovery request
to which the Board failed to respond.” Id. Thus, “[a]s a result
of plaintiffs’ failure to timely and properly raise their
objections to the Board’s data production, plaintiffs are now
foreclosed from continuing to do so.” Id. at 9.
Dissatisfied, the plaintiffs moved to reconsider once more on
August 6, 2013. See Second Mot. to Reconsider, ECF No. 196. The
Court denied this motion on August 28, 2013:
Although styled as such, plaintiffs’ motion is clearly
not one for reconsideration. The motion either raises
arguments that should have been, but were not, raised
in plaintiffs’ underlying motion or their first motion
for reconsideration, or merely repeats arguments that
the Court has already considered and rejected. This
approach, pursued by plaintiffs several times in this
case, is a waste of judicial resources and the
resources of defendant, a government entity.
Order, ECF No. 199 at 3–4. The Court also addressed plaintiffs’
newfound argument “that they have recently ‘discovered’ that
defendant has withheld the production of ‘job codes’ from
previous data.” Id. at 5. “Even if this were true,” this Court
held, “it does not serve as a basis for reconsideration”:
The Court did not deny [plaintiffs’] motion to compel
on the grounds that job code information did not exist
or was not in the possession of [defendant]. The Court
denied the motion [to compel] because plaintiffs
failed to set forth any properly-served discovery
requests to which defendant failed to respond.
Although plaintiffs purport to attach copies of
properly-served discovery requests that requested job
codes to the pending motion, which is the third
attempt by plaintiffs to litigate this specific
discovery issue, it is too late. Even if those
documents did reflect discovery that was requested but
not produced, plaintiffs cannot use a motion for
reconsideration to argue issues that could have been
raised earlier, but were not.
Id. at 5.
On October 8, 2013, the plaintiffs attempted to appeal these
discovery orders by moving to enforce the D.C. Circuit’s mandate
reversing this Court’s decision granting the defendant’s motion
to dismiss. See Mot. to Enforce, Artis v. Bernanke, No. 09-5121,
Doc. 1460265 (D.C. Cir. Oct. 8, 2013). On November 26, 2013, the
Circuit denied the motion. See Order, Artis v. Bernanke, No. 095121, Doc. 1468033 (D.C. Cir. Nov. 26, 2013).
Plaintiffs’ Motion for Class Certification
On January 3, 2014, plaintiffs filed their motion for class
certification. See Mot. to Certify Class (“Mot.”), ECF No. 211.
Although plaintiffs attached exhibits to that motion, they filed
additional exhibits—and another motion for class certification—
on January 6, 2014. See Suppl. Mot. and Exhibits, ECF No. 212.8
The Federal Reserve Board filed its opposition on February 10,
2014. See Opp. to Mot. to Certify Class (“Opp.”), ECF No. 213.
Plaintiffs filed their reply brief on March 28, 2014. See Reply
in Supp. of Mot. (“Reply”), ECF No. 219. Yet again, plaintiffs
filed an untimely second reply brief and an accompanying
exhibit. See Errata, ECF No. 220.9
Plaintiffs have repeatedly wasted this Court’s and the
defendant’s time and resources by filing timely, but incomplete,
versions of pleadings and then filing one or more untimely
“corrected” versions. In accordance with the Court’s December 4,
2012 Minute Order, which required the plaintiffs to seek leave
of Court before filing untimely errata, the Court ORDERS that
the brief filed on January 6, 2014 as ECF No. 212 be STRICKEN
FROM THE DOCKET. The exhibits thereto may remain part of the
record, but plaintiffs are warned that future failures to comply
with Court Orders may result in this case being dismissed with
prejudice. See, e.g., Bristol Petroleum Corp. v. Harris, 901
F.2d 165, 167-68 (D.C. Cir. 1990); Fed. R. Civ. P. 41(b).
In accordance with this Court’s December 4, 2012 Minute Order,
the Court ORDERS that the brief filed on March 29, 2014 as ECF
No. 220 be STRICKEN FROM THE DOCKET.
On May 1, 2014, plaintiffs filed a motion seeking to
supplement the record with yet another untimely exhibit. See
Mot. to Suppl., ECF No. 221. Defendant filed its opposition on
May 14, 2014. See Opp. to Mot. to Suppl., ECF No. 222.
Plaintiffs filed their reply brief on May 21, 2014. See Reply in
Supp. of Mot. to Suppl., ECF No. 223.
Plaintiffs’ Motion to Supplement the Record is Denied.
“A Scheduling Order is intended to serve as the unalterable
road map (absent good cause) for the remainder of the case.” Dag
Enter., Inc. v. Exxon Mobil Corp., 226 F.R.D. 95, 104 (D.D.C.
2005) (quotation marks omitted). It “‘is not a frivolous piece
of paper, idly entered, which can be cavalierly disregarded by
counsel without peril.’” Id. (quoting Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992)). On July
21, 2011, the Court set a schedule for the completion of the
class-certification portion of this case. See Scheduling Order,
ECF No. 95. Plaintiffs’ repeated requests for reconsideration of
this Court’s discovery orders necessitated a one-year delay in
that schedule and the Court ultimately ordered the plaintiffs to
submit their expert report by September 3, 2013, to make their
expert available for a deposition by September 30, 2013, and to
file their motion for class certification by January 3, 2014.
See Minute Order of July 8, 2013. Although plaintiffs submitted
an expert report on September 3, 2013, they also submitted an
updated report on September 30, 2013. See Mot. for Extension,
ECF No. 204 at 1. In exchange for a continuation of the expert’s
deposition, the defendant agreed not to object to the untimely
report. See id. The Court accepts the parties’ agreement with
respect to the first untimely report, but plaintiffs’ May 1,
2014 motion, which seeks to supplement the record with yet
another updated expert report and is opposed by the defendant,
asks too much. That report was filed eight months after the
deadline for the submission of expert reports, seven months
after the deposition of plaintiffs’ expert, and over one month
after the motion for class certification became ripe.
“A party must make [expert] disclosures at the times and in
the sequence that the court orders.” Fed. R. Civ. P.
26(a)(2)(D). The purpose of that Rule is to “prevent experts
from lying in wait to express new opinions at the last minute,
thereby denying the opposing party the opportunity to depose the
expert on the new information or closely examine the expert’s
new testimony.” Minebea Co. v. Papst, 231 F.R.D. 3, 5 (D.D.C.
2005) (quotation marks omitted); see also Coles v. Perry, 217
F.R.D. 1, 4 (D.D.C. 2003). Plaintiffs have done just that,
springing a new report well after the defendant deposed their
expert and briefed the motion for class certification. As a
sanction for failing to follow this rule, Federal Rule of Civil
Procedure 37(c)(1) provides that “the party is not allowed to
use that information or witness to supply evidence on a motion .
. . unless the failure [to disclose] was substantially justified
or is harmless.” The production of a new expert report that
raises new theories after a motion for class certification has
been fully briefed is not harmless. It forces the defendant
either to forfeit the ability to address the report, or to
depose the new expert and brief the motion for class
certification anew. Nor have plaintiffs offered a reasonable
justification for their delay.
An untimely expert report could be excused by Federal Rule of
Civil Procedure 26(e), which “permits supplemental reports only
for the narrow purpose of correcting inaccuracies or adding
information that was not available at the time of the initial
report.” Richardson v. Korson, 905 F. Supp. 2d 193, 199 (D.D.C.
2012) (quotation marks omitted). Plaintiffs do not argue, nor
could they, that their report seeks only to correct
inaccuracies. Nor is the information on which the report relies
new, notwithstanding plaintiffs’ assertion that the report is
based on “newly discovered evidence.” Mot. to Supp., ECF No. 221
at 1. In fact, the report is based on the same data the Federal
Reserve Board produced to the plaintiffs in May 2012. For that
reason, the Court DENIES plaintiffs’ motion to supplement.10 For
the same reason, the two-page “expert report” attached to
plaintiffs’ reply brief in support of their motion to compel and
dated March 28, 2014, Ex. A to Pls.’ Reply, ECF No. 220-1, is
also untimely and is STRICKEN FROM THE DOCKET.
Courts May Address Class Certification Before the Merits.
Plaintiffs assert that this Court has wrongly forced them to
demonstrate their entitlement to class certification prior to
adjudicating the merits of their claims. See Mot. at 13. This
claim is baseless. Federal Rule of Civil Procedure 23 requires
the Court, at “an early practicable time,” to “determine by
order whether to certify the action as a class action.” Fed. R.
Civ. P. 23(c)(1)(A). This Court’s Local Rules further expedite
the process by requiring the filing of a motion for class
certification “[w]ithin 90 days after the filing of a complaint
The Court also has serious doubts about the veracity of
plaintiffs’ May 1, 2014 expert report. The expert supposedly
discovered gaps in the defendant’s personnel data regarding 334
employees. See id. at 3. Upon receiving the report, the
defendant “randomly selected a number of employees listed in the
[report] and reviewed the information the Board provided
plaintiffs’ counsel in May 2012 regarding those employees.” Opp.
to Mot. to Suppl., ECF No. 222 at 3. “In every single instance
[defendant] reviewed, the supposedly ‘missing’ data were indeed
provided.” Id. at 3–4. In response, plaintiffs concede that they
“provided the court with inaccurate statistical data,” but now
assert that the data is missing for 186 employees. See Reply in
Supp. of Mot. to Suppl., ECF No. 223 at 2, 3. Plaintiffs are
warned that they may be subject to sanctions if they continue to
provide “inaccurate” evidence or representations to the Court.
. . . unless the court in the exercise of its discretion has
extended this period.” Local Civ. R. 23.1(b).
Courts have also made clear that class certification comes
first. “[P]rior to reaching the merits[, the Court] must conduct
a . . . class certification analysis to ensure compliance with
Rule 23 requirements.” Brewer v. Holder, No. 8-1747, 2013 WL
5397841, at *5 (D.D.C. Sept. 27, 2013) (emphasis added); see
also Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 965–66 (11th
Cir. 2008); Chavez v. Ill. State Police, 251 F.3d 612, 629–30
(7th Cir. 2001). Plaintiffs’ reliance on International
Brotherhood of Teamsters is misguided. See Mot. at 13–14. That
case held only that courts must address the merits before
addressing individual relief. See 431 U.S. 324, 361 (1977). The
Court thus appropriately began with class certification.11
Plaintiffs’ Discovery Arguments Are Meritless.
Plaintiffs assert throughout their motion that they have been
deprived of discovery responses to which they were entitled.
Although raised in a motion for class certification, these
arguments are merely renewed requests for reconsideration of the
Court’s October 10, 2012; July 8, 2013; and August 28, 2013
Relatedly, plaintiffs wrongly assert that they are entitled to
have a jury determine the facts at this stage. See Mot. at 14. A
jury may be the ultimate fact finder, but “at the class
certification stage . . . the judge is the decision maker.” In
re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604, 613 (8th
Cir. 2011); see also In re New Motor Vehicles Canadian Export
Antitrust Litig., 522 F.3d 6, 24 (1st Cir. 2008).
Orders. Moreover, plaintiffs’ arguments have all been rejected
by this Court (many on multiple occasions). See supra at 10–15.
This Court’s August 28, 2013 Order is equally applicable here:
The motion either raises arguments that should have
been, but were not, raised in plaintiffs’ underlying
reconsideration, or merely repeats arguments that the
Court has already considered and rejected. This
approach, pursued by plaintiffs several times in this
case, is a waste of judicial resources and the
resources of defendant, a government entity. “In this
Circuit, it is well-established that ‘motions for
reconsideration,’ whatever their procedural basis,
cannot be used as ‘an opportunity to reargue facts and
theories upon which a court has already ruled, nor as
a vehicle for presenting theories or arguments that
could have been advanced earlier.’” Estate of Gaither
ex rel. Gaither v. District of Columbia, 771 F. Supp.
2d 5, 10 (D.D.C. 2011) (quoting SEC v. Bilzerian, 729
F. Supp. 2d 9, 14 (D.D.C. 2010)).
Order, ECF No. 199 at 3–4.
III. Class Certification
“The class action is an exception to the usual rule that
litigation is conducted by and on behalf of the individual named
parties only.” Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432
(2013) (quotation marks omitted). Class certification is
governed by Rule 23 of the Federal Rules of Civil Procedure, and
a plaintiff “must affirmatively demonstrate his compliance with
the Rule.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551
(2011). This is done not by pleading compliance, but by
“demonstrat[ing] . . . compliance . . . in fact.” Id. (emphasis
Existence of a Class
“Although not specifically mentioned in the rule, an essential
prerequisite of an action under Rule 23 is that there must be a
‘class.’” Wright & Miller, Federal Practice and Procedure § 1760
(3d ed. 2014); see also Simer v. Rios, 661 F.2d 655, 669 (7th
Cir. 1981) (“It is axiomatic that for a class action to be
certified a ‘class’ must exist.”). Accordingly, a class may be
certified only when “an individual would be able to determine,
simply by reading the [class] definition, whether he or she was
a member of the proposed class.” Bynum v. District of Columbia,
214 F.R.D. 27, 32 (D.D.C. 2003).
The plaintiffs propose to bring a class defined as:
American and/or Native American Secretarial and/or
clerical support persons employed at the defendant
Board at any time from 1989 to the present (the Class
Period) and; or alternatively, at any time during the
“class period” as defined by reference to provisions
of the Lilly Ledbetter Fair Pay Act of 2009, (as
amended), with respect to each such class member;
[w]ho, because of racial discrimination, have been
denied advancement or promotions for which they were
counterparts who were selected over them one or more
times, and/or who received lessor advances in salary
or bonuses or other benefit, including retirement,
and/or who have been, continue to be, or may in the
future suffered disparate treatment, or systemic or
other adverse impact, or systemic adverse treatment
because of their race, African American or Native
American, and/or who were similarly situated within
the definition of F.R.Civ. Rule 23 to one or more of
the plaintiffs herein, who were damaged, injured, or
otherwise adversely affected including effects upon
emotional and physical health, by the Board’s racially
discriminatory policies and practices, or the use of
race as a prohibited employment practice in decision
making resulting in an individual or group adverse
employment practice, as complained of herein; and/or
by virtue of an unfair and lessor amount of pay in at
least one paycheck, and who suffered lessor, fringe
benefits, including retirement annuities, based in any
part upon that unfair and lesser pay.
Mot. at 4–5 (typographical errors in original; emphasis
omitted). This convoluted definition would render it difficult
for a potential class member to decide whether they may be “a
member of the proposed class.” Bynum, 214 F.R.D. at 32.
The class definition also makes membership in the class
contingent on an individualized merits determination: Whether
the individual suffered “discrimination,” “disparate treatment,”
or “systemic or other adverse impact, or systemic adverse
treatment.” Mot. at 4. This is problematic because “[u]sing a
future decision on the merits to specify the scope of the class
makes it impossible to determine who is in the class until the
case ends.” Bolden v. Walsh Const. Co., 688 F.3d 893, 895 (7th
Cir. 2012); see also Williams v. Glickman, No. 95-1149, 1997 WL
33772612, at *4 (D.D.C. Feb. 14, 1997) (defining a class so that
membership is contingent on a determination whether individuals
suffered discrimination improperly requires the Court to “answer
several fact-intensive questions”).
Plaintiffs also failed to demonstrate their entitlement to
class certification under Rule 23(a), which requires that:
(1) the class is so numerous that joinder of all
members is impracticable; (2) there are questions of
law or fact common to the class; (3) the claims or
defenses of the representative parties are typical of
the claims or defenses of the class; and (4) the
representative parties will fairly and adequately
protect the interests of the class.
These requirements are known respectively as “numerosity,
commonality, typicality, and adequate representation.” Wal-Mart,
131 S. Ct. at 2550. Plaintiffs cannot establish commonality or
A plaintiff seeking class certification must establish that
“there are questions of law or fact common to the class.” Fed.
R. Civ. P. 23(a)(2). The plaintiffs never clearly articulate why
they believe they have demonstrated commonality. See Mot. at 6–
7. According to the defendant, plaintiffs’ proposed class fails
to meet that standard because the discrimination they allege
stems from an array of individualized decisions of low-level
It is also not clear that plaintiffs are adequate
representatives. That requirement seeks in part to ensure that
“the representatives . . . 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 (D.C. Cir.
1997) (quotation marks omitted). Plaintiffs failed to
participate in class discovery until this Court ordered them to.
That this failure was due to the advice of the lawyer they
selected to represent the class, whom the Court was forced to
sanction personally for his actions, raises doubts as to the
adequacy of their representation. Plaintiffs’ submission of an
untimely and admittedly “inaccurate” expert report adds to these
supervisors who operate with significant discretion to design
subjective criteria for making personnel decisions.
The Supreme Court’s decision in Wal-Mart guides the
commonality analysis. In Wal-Mart, as here, the class alleged
that the discrimination they suffered arose from “the discretion
exercised by their local supervisors over pay and promotion
matters.” 131 S. Ct. at 2547. As here, the record established
that “[p]ay and promotion decisions . . . are generally
committed to local managers’ broad discretion, which is
exercised in a largely subjective manner.” Id. (quotation marks
omitted). The Supreme Court found that this did not demonstrate
commonality, which requires that a class’s “claims must depend
upon a common contention” that is “of such a nature that it is
capable of class wide resolution—which means that determination
of its truth or falsity will resolve an issue that is central to
the validity of each one of the claims in one stroke.” Id. at
2551. The Wal-Mart plaintiffs identified only a general policy
“of allowing discretion by local supervisors over employment
matters”—effectively “a policy against having uniform employment
practices.” Id. at 2554 (emphases omitted). Resolution of the
legality of any one manager’s exercise of discretion, then,
would have no bearing on the legality of any other manager’s
action, absent “some glue holding the alleged reasons for all
those decisions together.” Id. at 2552 (emphasis in original).
The Supreme Court noted that such glue could be provided “if the
employer ‘used a biased testing procedure’” or upon
“‘[s]ignificant proof that an employer operated under a general
policy of discrimination.’” Id. at 2553 (quoting Gen. Tel. Co.
v. Falcon, 457 U.S. 147, 159 n.15 (1982)).
In the wake of Wal-Mart, courts “have generally denied
certification when allegedly discriminatory policies are highly
discretionary and the plaintiffs do not point to a common mode
of exercising discretion that pervades the entire company.”
Tabor v. Hilti, Inc., 703 F.3d 1206, 1229 (10th Cir. 2013)
(quotation marks omitted). But “Wal-Mart did not set out a per
se rule against class certification where subjective decisionmaking or discretion is alleged”; rather, “to satisfy
commonality, a plaintiff must demonstrate that the exercise of
discretion is tied to a specific employment practice, and that
the subjective practice at issue affected the class in a uniform
manner.” Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 113
(4th Cir. 2013) (quotation marks omitted). The requisite “glue”
may be provided by “unit[ing] acts of discretion under a single
policy or practice, or through a single mode of exercising
discretion.” In re Countrywide Fin. Corp. Mortg. Lending
Practices Litig., 708 F.3d 704, 708 (6th Cir. 2013).
Plaintiffs provide no evidence that could support an inference
that the discretionary decisions they challenge are tied
together by a common policy. Although they vaguely allege the
existence of discriminatory policies and practices, Mot. at 6–7,
the only general policy established by the record is the Federal
Reserve Board’s anti-discrimination policy. See Fields Decl. ¶
8. The only other practice established by the record is that
low-level managers set the standards and methods applicable to
promotions, salary increases, cash awards, performance reviews,
and career-transition plans. See id. ¶¶ 9–13, 16. This shows
nothing but a general policy “of allowing discretion by local
supervisors over employment matters,” which is not enough on its
own. Wal-Mart, 131 S. Ct. at 2554 (emphasis omitted).
Nor do the plaintiffs supply evidence that supervisors
exercise their discretion in a uniform manner. The plaintiffs
testified that the discrimination they allege was based on the
subjective exercise of discretion by certain managers, and that
many others exercised that discretion in a non-discriminatory
manner. See supra at 7 n.3, 8 n.4. Plaintiffs provided limited
anecdotal evidence of allegedly discriminatory treatment of one
plaintiff, but these anecdotes further demonstrate that the
plaintiffs complain of individualized decisions. Plaintiff
Kathleen Matthews described in an affidavit approximately ten
instances in which she alleges that she was passed over for
promotions in favor of less-qualified Caucasian workers, and
gave an apparently non-discriminatory explanation for one of
those decisions. See Declaration of Kathleen Matthews, ECF No.
212-8 ¶¶ 1–4, 7–9. The record thus indicates that some
supervisors may have exercised their discretion to discriminate,
others in an arbitrary but non-discriminatory manner, and still
others in a manner plaintiffs felt was fair. There is therefore
no evidence of a uniform “mode of exercising discretion.” In re
Countrywide, 708 F.3d at 708. Nor did plaintiffs establish that
a single high-level manager was involved in many or all of the
challenged employment decisions. See Scott, 733 F.3d at 114
(“Wal-Mart is limited to the exercise of discretion by lowerlevel employees, as opposed to upper-level, top-management
Plaintiffs largely base their argument on statistical
evidence. To be sure, statistical evidence may be a powerful
tool in proving that a class suffered a common injury. See,
e.g., Moore v. Napolitano, 926 F. Supp. 2d 8, 29–30 (D.D.C.
2013) (certifying a class where plaintiffs submitted
“statistically significant” evidence showing that, pursuant to a
promotion policy, African-American employees were
underrepresented in higher-level positions and were
disadvantaged by the policy). Not all statistical evidence is
relevant to commonality, however. “Statistical disparities
alone,” which might show that a particular group is
underrepresented, “generally are not proof that . . . the class
as a whole . . . has been discriminated against.” In re Navy
Chaplaincy, No. 7-mc-269, 2014 WL 4378781, at *15 (D.D.C. Sept.
4, 2014). For example, “[i]f [a company] had 25 superintendents,
5 of whom discriminated in awarding overtime, aggregate data
would show that black workers did worse than white workers—but
that result would not imply that all 25 superintendents behaved
similarly, so it would not demonstrate commonality.” Bolden, 688
F.3d at 896.
Plaintiffs’ statistical evidence falls far short of these
requirements. To begin, Mr. Hampson, plaintiffs’ statistical
expert, appears to agree that he is not qualified. He has no
degree beyond a bachelor’s degree and has never testified as an
expert witness. See Deposition of Richard Hampson (“Hampson
Dep.”), ECF No. 213-4 at 10:17–22, 13:4–15. Nor does Mr. Hampson
have specialized education relating to the use of statistics
regarding employment discrimination. See id. at 16:17–20.
Indeed, he appears never to have prepared statistics regarding
employment discrimination until becoming involved with this
case, id. at 20:3–11, and when asked whether he was “claiming to
be an expert in the preparation of employment discrimination
statistics,” he acknowledged that he “made no such specific
claim.” Id. at 27:12–14. As a result, his calculations did not
use “any differential statistic to measure the statistical
significance of the difference in pay between the plaintiffs and
white employees.” Id. at 221:20–222:14. This failure to use
anything but rudimentary comparisons renders it “impossible—as a
statistical matter—to draw meaningful conclusions.” Love v.
Johanns, 439 F.3d 723, 731 (D.C. Cir. 2006).
Mr. Hampson’s conclusions also appear to have shifted. Before
Mr. Hampson submitted his report, plaintiffs’ counsel
represented to the Court in a filing that Mr. Hampson had
conducted an initial study of the personnel data produced by the
defendant and found that “no discernible difference in earnings
figures were evident in the data.” Pls.’ Reply in Supp. of Mot.
to Reconsider, ECF No. 193 at 12. Mr. Hampson then modified his
methodology and testified conflictingly about these changes.
First, he asserted that the initial analysis “wasn’t a study,”
then that he didn’t remember it, and later that he “vaguely
remember[ed] discussing . . . that the data didn’t seem to pop
out, that it was consistently different.” Hampson Dep. at 500:4–
Mr. Hampson’s qualifications and apparently shifting views
aside, his report does not even attempt to prove facts that
would be relevant to commonality. Mr. Hampson compared the
salaries of eleven of the fourteen named plaintiffs to handpicked white employees who were hired in the same year as each
plaintiff. Mr. Hampson terms these groups of individuals hired
in the same year “cohorts,” and purports to show that in each
cohort, the white employees’ salaries exceed that of the
plaintiff. Mr. Hampson admits, however, that this method cannot
prove that anyone suffered discrimination other than the eleven
named plaintiffs he tracked. See Hampson Dep. at 430:13–16; id.
at 220:6–12. Most glaringly, he was asked “[t]here’s nothing in
your calculations that would shed light on whether different
managers were making decisions different ways[,] [r]ight?” and
responded “[t]hat’s correct.” Id. at 227:21–228:7. Mr. Hampson
thus admitted that he cannot provide the necessary “glue” to
hold together the individualized claims of the class. Even if it
had provided that glue, Mr. Hampson’s analysis addressed only
one of the five practices challenged by the class. He did not
analyze anything related to the class members’ experiences with
promotions, cash awards, performance reviews, or careertransition agreements. See Hampson Dep. at 213:8–217:5. Mr.
Hampson’s analysis thus provides nothing to support a finding of
commonality.13 Accordingly, plaintiffs have failed to meet their
Mr. Hampson’s methodology also appears to have been
manipulated to achieve the results sought by the plaintiffs.
Indeed, Mr. Hampson appeared to testify that he did not remember
whether his methodology was his idea or that of plaintiffs’
counsel. See Hampson Dep. at 154:7–155:14. Whoever came up with
the idea, Mr. Hampson’s analysis was conducted to ensure that
the comparisons were favorable to the plaintiffs. Mr. Hampson
excluded from his analysis three of the named plaintiffs;
excluded potential Caucasian comparators who were lower paid,
but appeared to share many characteristics with the named
plaintiffs; and included higher-paid Caucasian employees who
burden of demonstrating that the class raises even one common
Plaintiffs also fail to demonstrate that “the claims or
defenses of the representative parties are typical of the claims
or defenses of the class.” Fed. R. Civ. P. 23(a)(3). A class
representative satisfies the typicality requirement if the
representative’s “claims are based on the same legal theory as
the claims of the other class members” and her “injuries arise
from the same course of conduct that gives rise to the other
class members’ claims.” Bynum, 214 F.R.D. at 35. Put another
way, a representative’s claims are typical of those of the class
when “[t]he plaintiffs allege that their injuries derive from a
unitary course of conduct by a single system.” Marisol A. v.
Giuliani, 126 F.3d 372, 377 (2d Cir. 1997).
Plaintiffs’ claims lack typicality for the same reason they
lack commonality: their claims are not about “a unitary course
of conduct by a single system,” id., but individualized courses
of conduct by dozens, if not hundreds, of low-level managers.
See In re Navy Chaplaincy, 2014 WL 4378781, at *17 (where
plaintiffs failed to show “that their claims have even a single
question of law or fact in common with any of the absent class
worked entirely different jobs. See Report of Mary Dunn Baker,
ECF No. 213-3 at 4, 10–12.
members,” typicality is lacking because “it would be impossible
to conclude that their claims arise from the same course of
events”) (quotation marks omitted). Moreover, plaintiffs
challenge an array of personnel decisions related to five
different employment benefits, yet each plaintiff experienced
different treatment and many did not claim to have been
discriminated against in connection with one or more of those
benefits. See supra at 5–6 & n.2. Accordingly, the putative
class lacks typicality.
Plaintiffs also failed to demonstrate entitlement to
certification under any provision of Rule 23(b).
Rules 23(b)(1) and 23(b)(2)
The Wal-Mart Court was unanimous in holding that class actions
seeking backpay under Title VII do not belong under Rule
23(b)(2). See 131 S. Ct. at 2557; id. at 2561 (Ginsburg, J.,
concurring in part and dissenting in part). The Supreme Court
reserved judgment on whether Rule 23(b)(2) may be available
where monetary relief is “incidental to the injunctive or
declaratory relief,” id. at 2557, but made clear that claims for
backpay under Title VII are not incidental because the employer
“is entitled to individualized determinations of each employee’s
eligibility for backpay,” including the ability to “show that it
took an adverse employment action against an employee for any
reason other than discrimination.” Id. at 2560–61. The Court
found that this limitation applies equally to a (b)(1) class
because it, like a (b)(2) class, is a mandatory class that does
not permit a class member to opt out. See id. at 2558. Because
plaintiffs’ proposed class brings claims for backpay, it may not
be certified under Rules 23(b)(1) or (b)(2).
Rule 23(b)(3) provides that a class may be certified where
“the questions of law or fact common to class members
predominate over any questions affecting only individual
members” and “a class action is superior to other available
methods for fairly and efficiently adjudicating the
controversy.” Fed. R. Civ. P. 23(b)(3). The predominance
requirement “tests whether proposed classes are sufficiently
cohesive to warrant adjudication by representation.” Amchem
Prods. v. Windsor, 521 U.S. 591, 623 (1997). This inquiry is
similar to the commonality inquiry, but “[i]f anything, Rule
23(b)(3)’s predominance criterion is even more demanding than
Rule 23(a).” Comcast, 133 S. Ct. at 1432. Here, the analysis is
simple: the plaintiffs have not identified a single common
issue. See supra Part at III.B.1. In the absence of any common
issue, it cannot be said that common issues predominate.
Accordingly, a (b)(3) class is also inappropriate.
For the foregoing reasons, the Court DENIES plaintiffs’ motion
for class certification and DENIES plaintiffs’ motion to
supplement the record. An appropriate Order accompanies this
Emmet G. Sullivan
United States District Judge
September 29, 2014
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