Little v. Wash. Metro. Area Transit Auth.

• Decision Date: 31 March 2017
• Docket Number: Civil Action No. 14-1289 (RMC).
• Citation: 249 F.Supp.3d 394
• Parties: Erick LITTLE, et al., Plaintiffs, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

249 F.Supp.3d 394

Erick LITTLE, et al., Plaintiffs,

v.WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, et al., Defendants.

Civil Action No. 14-1289 (RMC).

United States District Court, District of Columbia.

Signed March 31, 2017

Filed April 18, 2017

Ajmel A. Quereshi, NAACP Legal Defense & Educational Fund, Inc., Brett E. Marston, Brittany Erin McClure, Katherine E. Clemons, Michael Duane Harris, Arnold & Porter LLP, John Arak Freedman, Arnold & Porter Kay Scholer LLP, Dennis A. Corkery, Matthew K. Handley, Washington Lawyers' Committee for Civil Rights & Urban Affairs, Matthew R. Fearnside, U.S. Department of Justice, Peter Romer–Friedman, Outten & Golden, LLP, Thomas Dallas McSorley, Washington, DC, Natasha Korgaonkar, Rachel M. Kleinman, NAACP Legal Defense & Educational Fund, Inc., New York, NY, for Plaintiffs.

Galen Pendergrass, Temple Hills, MD, pro se.

Gerard Joseph Stief, Office of General Counsel, Harvey A. Levin, Kathleen E. Kraft, Thompson Coburn, LLP, Melissa E. Hoppmeyer, Nat Peter Calamis, Matthew D. Berkowitz, Carr Maloney, P.C., Richard William Black, Littler Mendelson, P.C., Washington, DC, Charles M. Poplstein, Robert J. Wagner, Tabitha G. Davisson, Thompson Coburn LLP, St. Louis, MO, Michael Nicholas Petkovich, Amanda Leigh Scott Vaccaro, Jackson Lewis P.C., Reston, VA, William Simmons, Littler Mendelson, P.C., Philadelphia, PA, for Defendants.

OPINION

ROSEMARY M. COLLYER, United States District Judge

Plaintiffs complain that a criminal background check, used by the Washington Metropolitan Area Transit Authority (WMATA) to screen candidates and employees, is facially neutral but has a disparate impact on African Americans. WMATA's Policy 7.2.3 governs how and when individuals with criminal convictions can obtain or continue employment with WMATA and its contractors and subcontractors. Plaintiffs seek to represent one or more classes of African–American candidates and employees who were disqualified or removed from employment by Policy 7.2.3 in alleged violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. and the District of Columbia Human Rights Act (DCHRA), D.C. Code § 2.1404.01 et seq. After class discovery, Plaintiffs now seek leave to file an amended complaint, class certification of the amended classes, and appointment of Plaintiffs' counsel as class counsel.

The motion to amend the complaint will be denied without prejudice. The motion for class certification will be granted in part and denied in part. The Court will certify three classes, separating candidates and employees based on the Appendix of Policy 7.2.3 that applied to them.

The parties also filed motions to exclude the other's experts. The motion to exclude Dr. Farber will be granted in part and denied in part. The motion to exclude Dr. Bendick will be granted. The motions to exclude Dr. Stixrud's initial report and declaration will be granted in part and denied in part. The motion to exclude Dr. Siskin will be denied.

I. BACKGROUND

WMATA was created by an Interstate Compact among Washington, D.C., Virginia and Maryland, and approved by Congress, to be the primary public transit agency for the D.C. metropolitan region. Cert. Opp., Ex. 20 [Dkt. 137–2] at WMATA0002330. WMATA operates the region's Metrorail system (86 stations and 105 miles of track); Metrobus system (135 lines and 12,216 stops); and MetroAccess paratransit service for the disabled. See id.; see also Cert. Opp. [Dkt. 137] at 10. "The Compact confers broad powers on WMATA to ‘[c]reate and abolish offices, employments and positions ... provide for the qualification, appointment, [and] removal ... of its ... employees, [and] [e]stablish, in its discretion, a personnel system based on merit and fitness.’ " Beebe v. WMATA, 129 F.3d 1283, 1287 (D.C. Cir. 1997) (quoting D.C. Code Ann. §§ 1–2431(12)(g) and (h) ). WMATA argues that it is, thus, generally "immune from attacks upon its discretionary decisions related to its establishment of qualifications for employees," although it recognizes that it is also subject to Title VII. Cert. Opp. at 10 n.6.

Plaintiffs allege that the screening criteria in Policy 7.2.3 are "overly broad, unjustifiably rigid and unduly harsh." First Amended Complaint [Dkt. 84] ¶¶ 1–3, 8–15, 48–102, 103–04, 126–28 (FAC). Plaintiffs complain that:

[Policy 7.2.3] disqualifies many job applicants and employees based on criminal history that is not related to the job at issue or occurred so long ago—in some cases, 20 or 30 years in the past—that it is irrelevant to any fair determination of employee honesty, reliability, or safety.

Id. ¶ 1. To clarify Plaintiffs' intentions, their pending Motion for Leave to File a Second Amended Complaint acknowledges that Plaintiffs' expert found no statistical basis to include "WMATA employees who may have been deterred from applying for internal job openings and/or employees who may have been deterred from taking medical or personal leave" or "persons directly employed and subsequently terminated by WMATA." Mot. for Leave to File Second Amended Complaint [Dkt. 117] ¶ 7 (SAC Mot.).

WMATA argues that it adopted Policy 7.2.3 as a business necessity. Cert. Opp. at 11–13. The argument goes to the merits of Plaintiffs' Complaint, not to their motion for class certification. Additionally, WMATA argues that the actual makeup of its employee pool demonstrates that no discrimination occurs. See id. at 10–11. Specifically, African Americans constitute seventy-five percent (75%) of WMATA's (employee and contractor) workforce of more than 12,000 individuals. See id., Exs. 21–22 [Dkt. 137–2]. African Americans hold 96% of WMATA's bus and rail operator positions. And these numbers exceed the proportion of African Americans in the metropolitan area: 52% of D.C. residents identify as African American; 65% of residents in Prince George's County identify as African American; and the percentages of persons who identify as African American in Montgomery County, Maryland, and the metropolitan counties in Virginia range from between 5 and 22%. See id., Ex. 24 [Dkt. 137–3] at WMATA0002370–2390. While these employment figures are not contested by Plaintiffs, they contend that Policy 7.2.3 bars employment of African Americans more than other races. See Connecticut v. Teal, 457 U.S. 440, 453–54, 455, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982) ("Congress never intended to give an employer license to discriminate against some employees on the basis of race or sex merely because he favorably treats other members of the employees' group."); Furnco Constr. Corp. v. Waters, 438 U.S. 567, 579, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978) ("A racially balanced work force cannot immunize an employer from liability for specific acts of discrimination.").

From 2009 to 2012, WMATA followed an inconsistently-applied criminal background check policy, which was promulgated through a Staff Notice. See Mot. for Cert, Ex. 7, [redacted]. The 2009 policy divided positions into public-facing and non-public-facing. For all positions, an individual was disqualified if s/he had a felony or misdemeanor conviction of a crime against persons, a sex crime, or a crime against society. For crimes against property or controlled substances offenses, individuals were either disqualified or permitted to have up to two convictions depending on whether the crime was a misdemeanor or a felony or if it was committed more than five or more than ten years ago. See Mot. for Cert., Ex. 6 [Dkt. 124–2] [redacted].

Starting in late 2009, WMATA's Director of Human Resources, Dr. Amy Celeste–Quillen, began [redacted] to develop a policy that used criminal background checks to screen applicants for employment. Cert. Opp. at 12–13.

A. Policy 7.2.3

Policy 7.2.3 was adopted in December 2011 and took effect on February 23, 2012. Mot. for Cert., Ex. 2, Policy 7.2.3 [Dkt. 124–2] at WMATA0002227. Policy 7.2.3 first applied only to WMATA candidates for employment (those to whom a conditional offer of employment had been extended, pending screening) and WMATA badge contractor candidates who would work on WMATA property for WMATA contractors, as well as employees of WMATA and badge contractors who were seeking to return to employment after a lengthy absence. Badge contractors are WMATA's independent contractors.¹ Employees of such contractors require WMATA badges to gain unescorted access to WMATA property. See Cert. Opp., Ex. 31, [redacted]. An appendix was added to Policy 7.2.3 on January 1, 2013, which extended the Policy to MetroAccess candidates for employment and employees. See id., Ex. 53, [redacted].

Policy 7.2.3 indicates that its purpose is to "ensure[ ] that candidates and employees have provided accurate, complete, and truthful information relating to former employment, experience, education, and relevant criminal and/or financial background information." Policy 7.2.3 at WMATA0002227. Policy 7.2.3 applies to all external candidates and to employees under specific circumstances. External candidates are subject to Policy 7.2.3 prior to a final offer of employment. Id. Internal candidates, i.e., former employees separated from employment, are subject to Policy 7.2.3 if (1) represented and reinstated or considered for reinstatement after a grievance process or (2) not represented and considered for reinstatement after an employee dispute resolution process. Id. Employees are subject to Policy 7.2.3 when (1) they are "under consideration for a fiduciary position or a position that requires unrestricted access to the general public"; (2) they are "under consideration for return to duty" after a "non-work status for a period of 90 calendar days or longer"; or (3) "reasonable suspicion exists" about information which "could impact the employee from performing the duties of the current position held." Id. at WMATA0002227–28, WMATA0002232–33.

Section 5.03 of Policy 7.2.3 further outlines "[c]ircumstances that can result in the initiation of a reasonable suspicion screening," including but not...