Houser v. Pritzker

• Decision Date: 01 July 2014
• Docket Number: No. 10cv3105–FM.,10cv3105–FM.
• Citation: 28 F.Supp.3d 222
• Court: U.S. District Court — Southern District of New York
• Parties: Evelyn HOUSER, Anthony Gonzalez, Ignacio Riesco, Precious Daniels, Felicia Rickett–Samuels, Chynell Scott, Vivian Kargbo, and Scotty Desphy, Plaintiffs, v. Penny PRITZKER, Secretary, United States Department of Commerce, Defendant.

28 F.Supp.3d 222

Evelyn HOUSER, Anthony Gonzalez, Ignacio Riesco, Precious Daniels, Felicia Rickett–Samuels, Chynell Scott, Vivian Kargbo, and Scotty Desphy, Plaintiffs

v.Penny PRITZKER, Secretary, United States Department of Commerce, Defendant.

No. 10cv3105–FM.

United States District Court, S.D. New York.

Signed July 1, 2014.

Signed Oct. 2, 2014.

Adam T. Klein, Justin Mitchell Swartz, Lewis M. Steel, Melissa E. Pierre–Louis, Ossai Miazad, Samuel Rand Miller, Amber Christine Trzinski, Rachel Megan Bien, Sally Jasmine Abrahamson, Outten & Golden, LLP, Darius Charney, Lansner & Kubitschek, Jackson Chin, Puerto Rican Legal Defense and Education Fund, Inc., Judith Melissa Whiting, The Legal Action Center, Paul Francis Keefe, Community Service Society, Richard F. Bellman, Anti–Discrimination Center of Metro New York, Inc., New York, NY, Audrey Jordan Wiggins, Jane Dolkart, Ray P. McClain, Sarah Crawford, Lawyers' Committee for Civil Rights Under Law, Michael T. Kirkpatrick, Public Citizen Litigation Group, Washington, DC, Robert T. Coulter, Indian Legal Resource Center, Helena, MT, Sharon Dietrich, Community Legal Services, Inc., Philadelphia, PA, for Plaintiffs.

Louis Anthony Pellegrino, U.S. Attorney Office, Natalie Nancy Kuehler, Tara Marie La Morte, Daniel Post Filor, Tomoko Onozawa, New York, NY, for Defendant.

MEMORANDUM DECISION AND ORDER

FRANK MAAS, United States Magistrate Judge.

In this putative class action, Plaintiffs, individually and on behalf of others similarly situated, allege that the process by which the United States Census Bureau (“Census Bureau”) screens applicants for temporary jobs for the Decennial Census is racially discriminatory and therefore violates Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). Specifically, the Plaintiffs challenge (a) the Census Bureau's policy requiring all applicants with criminal records to provide “official court documentation” of their prior arrests and convictions within thirty days after their receipt of a demand letter, and (b) the criteria the Census Bureau uses to determine whether an applicant who complies with such a demand is suitable for employment. The Plaintiffs contend that the Census Bureau's screening practices are neither job-related nor consistent with business necessity, and disproportionately preclude African–Americans and Latinos from obtaining employment with the Census Bureau because these groups have higher arrest and conviction rates than Caucasians.

On July 8, 2013, the Plaintiffs filed a motion to certify this action as a class action under Rule 23 of the Federal Rules of Civil Procedure. (ECF No. 166). On December 16, 2013, before the parties finished briefing the class certification motion, the Census Bureau filed a motion to dismiss for lack of subject matter jurisdiction. (ECF No. 225). As grounds for that motion, the Census Bureau alleges that each of the named plaintiffs lacks constitutional standing to pursue relief under Title VII. Both motions are now fully submitted.¹

I. Background

A. Census Bureau

The Census Bureau is an agency of the United States Department of Commerce. (Who We Are, United States Census Bureau, http://www.census.gov/aboutus/who. html (last visited July 1, 2014)). Every ten years, as Article I, Section 2 of the United States Constitution requires, the Census Bureau conducts a Population and Housing Census, commonly known as the Decennial Census. (About What We Do, United States Census Bureau, http://www. census.gov/aboutus (last visited July 1, 2014); What is the Census?, United States Census 2010, http://www.census.gov/2010census/ about (last visited July 1, 2014)). The Government uses the data collected during each Decennial Census to apportion seats in the United States House of Representatives, to inform redistricting decisions, and to allocate substantial amounts of federal funding. (ECF No. 204 (Decl. of Ass't U.S. Att'y Tara La Morte, dated Oct. 28, 2013), Exs. 1 at USA38988, 2 at USA 7667).

B. Census Bureau Hiring Process

1. Initial Application Stage

The 2010 Decennial Census required the Census Bureau to fill over 1.3 million temporary positions nationwide between October 2008 and September 2010. (ECF No. 205 (Decl. of Viola Lewis Willis, dated Oct. 28, 2013 (“Willis Decl. I”)), ¶ 2). Recruiting and hiring for these positions was conducted on a regional basis by “Local Census Offices” (“LCOs”). (Id. ¶ 7). Although each LCO had its own hiring needs, applicants across the country all were subject to the same initial application procedures and had to meet the same basic qualifications. At the outset, each applicant had to complete an application form to confirm that the applicant was over eighteen years of age, had a Social Security number, and had registered for the selective service if he was a male born after 1959. (ECF Nos. 169–170 (Decl. of Ossai Miazad, Esq., dated June 28, 2013 (“Miazad Decl. I”)), Ex. 71 at USA32563–67). The application form further inquired as to the applicant's citizenship status, hours of availability, means of transportation, former military service, and foreign language skills, although none of these criteria was dispositive at the initial application stage. (Id. ).

After submitting initial applications, applicants were required to take a written test, which the Census Bureau used to ascertain whether the applicant could follow written instructions, perform simple mathematical computations, and complete other job-related tasks. (ECF No. 227 (Decl. of Viola Lewis Willis, dated Dec. 16, 2013 (“Willis Decl. II”)), Ex. A at USA1758). To qualify for a spot in the applicant pool, candidates generally had to score 70 or higher on the exam, inclusive of any “preference points” awarded to veterans. (Miazad Decl. I, Ex. 56 at USA 45163; Willis Decl. I, ¶ 10). Applicants who scored below 70 were permitted to take the test again in an effort to improve their scores. (Willis Decl. I, ¶ 4). The highest score that an applicant achieved would supersede all prior test scores on file. (Id. ).

2. Criminal Background Screening and Adjudication

Applicants who submitted an application and completed the written exam were required to undergo a criminal background check. (ECF No. 206 (Decl. of Sandra Patterson, dated Oct. 28, 2013 (“Patterson Decl.”)), ¶ 3). At the outset of the process, the Census Bureau ran each applicant's name, date of birth, and Social Security number through the criminal history database of the Federal Bureau of Investigation (“FBI”). (Id. ). The Plaintiffs allege that this “namecheck” process often returned multiple “hits” for a single applicant and resulted in false positives for applicants who had common names or had used aliases in the past. (See ECF No. 176 (Pls.' Mem. of Law in Supp. of Mot. for Class Cert. (“Pls.' Class Cert. Mem.”)) at 15).

If the FBI database returned a criminal history for a particular applicant, LCO staff members would review its contents using certain criteria to determine whether to treat the applicant as immediately available for hire, or to request further information from the applicant. (Patterson Decl., ¶¶ 4–5). According to the Plaintiffs, this namecheck adjudication did not consider the disposition of the applicant's cases, the amount of time that had passed since the arrests occurred, the nature of the applicant's offenses, or whether the position the applicant sought involved interaction with the public. (ECF No. 125 (Second Am. Compl. (“SAC”)), ¶¶ 2, 15–16). If the LCO staff determined that more information was necessary, the Census Bureau sent a form letter (the “30–day Letter”) requiring the applicant to provide “official court documentation on any and all arrest(s) and/or conviction(s)” within thirty days. (Patterson Decl., ¶ 5; Miazad Decl. I, Ex. 70 at USA43538). If the applicant disputed the “identity of the arrest record,” the 30–day Letter advised the applicant to submit a set of fingerprints within that period. (Miazad Decl. I, Ex. 70 at USA43538).

The Plaintiffs estimate that nearly 854,000 of the approximately 3.8 million applicants who applied for temporary employment during the 2010 Decennial Census received a 30–day Letter. (Id., Ex. 68). Only a small percentage of those applicants responded to the letter. (Id. ). Overall, the Plaintiffs contend that the 30–day Letter policy prevented ninety-three percent of the applicants with arrest records—approximately 700,000 people—from being considered for employment in connection with the 2010 Census. (SAC ¶ 2).

If an applicant did respond to the 30–day Letter, his application proceeded to the “adjudication” stage of the screening process. (Patterson Decl., ¶ 6–7). At this stage, the Census Bureau applied certain criteria (“Adjudication Criteria”) to determine whether the applicant was suitable for employment. (Id. ). Pursuant to these criteria, the Census Bureau automatically excluded applicants with prior arrests for nearly all felonies and most misdemeanors. (Miazad Decl. I, Ex. 92). To the extent that the criteria allowed any discretion, Census Bureau employees were instructed to “[d]efer anything [they felt] strongly about” or as to which they could not “make an unbiased decision.” (SAC ¶ 26). The Plaintiffs contend that the Adjudication Criteria were “arbitrarily drawn, dramatically overinclusive, unguided by professional principles or social science, and based largely on irrational instincts.” (Pls.' Class Cert. Mem. at 21). Moreover, because the adjudication stage often took months to complete, the Plaintiffs allege that many applicants who eventually were deemed “eligible for hire” nonetheless were never considered for a job because the Census Bureau had already filled all of the temporary positions by the time the applicants received clearance. (SAC ¶ 29).

3. Final Selection Process

If an applicant was deemed “eligible for hire” following the background check, LCO staff members entered the applicant's information into an electronic data management...