UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________
)
REGINALD MOORE, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 00-953 (RWR/DAR)
)
JANET NAPOLITANO, )
)
Defendant. )
____________________________ )
MEMORANDUM OPINION AND ORDER
Plaintiffs, African-American current and former Special
Agents (“SAs”) of the United States Secret Service, bring this
employment discrimination action individually and as a putative
class action on behalf of African-American SAs against the
Secretary of the United States Department of Homeland Security
alleging that the Secret Service engaged in a pattern and
practice of racial discrimination in promoting African-American
SAs to GS-14 and GS-15 positions and that the Secret Service’s
promotion process has an adverse impact upon African-American SAs
in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., and the Civil Rights Act of 1991, 42
U.S.C. § 1981a. The plaintiffs move to certify a class of
African-American current and former SAs who have allegedly been
denied promotions due to racial discrimination under Federal Rule
of Civil Procedure 23. The defendant moves to exclude the
testimony of plaintiffs’ expert, Dr. Charles Mann, offered in
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support of the plaintiffs’ motion for class certification.
Because Dr. Mann is qualified to offer his expert opinion and his
testimony is relevant and reliable, the defendant’s motion will
be denied. Because the class plaintiffs have met Rule 23(a)’s
numerosity, commonality, typicality, and adequacy of
representation requirements, and because the plaintiffs have met
Rule 23(b)(3)’s predominance and superiority requirements, the
plaintiffs’ motion for class certification will be granted.
BACKGROUND
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:
Plaintiffs’ second amended complaint alleges that
throughout the proposed class period,1 the Secret
Service has maintained a pattern and practice of
discrimination against African-American SAs with regard
to selections for competitive positions, discipline,
transfers, assignments, testing, and hiring.
Plaintiffs generally allege that, over the course of
many years, the Secret Service has engaged in a wide
variety of racially discriminatory employment
practices, that it harbors a racially insensitive
environment that tolerates racist activities, and that
[it] fails to protect its African-American SAs from
racial discrimination. Although the Secret Service has
received multiple complaints about the discriminatory
conduct, plaintiffs claim, no sufficient remedy has
been provided.
1
Plaintiffs have been given permission to plead in their
second amended complaint non-promotion claims dating back to
1993 and “building block” claims dating back to 1999. See
Moore v. Chertoff, 437 F. Supp. 2d 156, 165 (D.D.C. 2006).
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I. PROMOTION EVALUATION PROCESS
The plaintiffs’ discrimination claims center
around the Secret Service evaluation system known as
the Secret Service Special Agent Merit Promotion
Program (“MPP”). The MPP is used annually to evaluate
SAs for promotion. An MPP score on a scale up to 100
points is used by an agent seeking promotion to bid on
available or vacant positions throughout an upcoming
bid cycle. (Pls.’ Mem. of P. & A. in Supp. of Pls.’
Mot. for Class Cert. (“Pls.’ Mem.”) at 15.) A
participating GS-13 Agent receives a total MPP score
that consists of three distinct parts: a (1) First
Level evaluation; (2) Peer Panel evaluation; and (3)
Second Level evaluation. A participating GS-14 Agent
receives an MPP score that consists of two parts: a (1)
First Level evaluation and (2) Second Level evaluation.
(Id. at 15-16.) The first level evaluation to which
both GS-13 and GS-14 participating agents are subject
is completed by the candidate’s immediate supervisor
and is signed by a Special Agent in Charge. (Id. at
16.) The supervisor rates each candidate using a scale
of one to five on ten specific elements such as writing
ability, problem solving, oral communication, knowledge
of Secret Service rules and regulations, leadership and
management ability, and negotiation skill. (Id.; see
also Moore v. Summers [(Moore I)], 113 F. Supp. 2d 5, 8
(D.D.C. 2000).)
The Peer Review Panel applies to candidates
seeking promotion to the GS-14 level. The Panel
evaluates candidates on their “protection” and
“investigation” experience. (Pls.’ Mem. at 16.) Peer
Panel members include agents at the GS-14 level or
above, who are given oral instructions on conducting
the panel. Notes are not taken during the Peer Panel
evaluation. (Id. at 17.)
A Second Level Panel evaluates candidates for GS-
14 or GS-15 promotions. GS-14 Agents are rated on six
separate competencies, including written or oral
communication, ability to lead or direct others, and
ability to analyze problems and recommend solutions.
(Id.) The Second Level Panel members include
representatives from each of the seven Assistant
Director (“AD”) offices, and the members are instructed
not to take notes and may review and adjust the ratings
at their discretion. (Id. at 17-18.)
Once an agent is given an MPP score, she may use
her score to bid on vacant positions. In some cases, a
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vacant position may be filled without the position
having to be posted. (Id. at 18.) The MPP scores are
then used to generate the Best Qualified List (“BQL”).
The candidates are ranked by their MPP scores and the
MPP policy creates a cut-off for the ranked list of
bidders or candidates. (Id. at 19.) The agent with
the highest MPP score is not guaranteed that he or she
will be awarded the vacant position. Instead, a
recommendation is made to the Director by an Advisory
Board that consists of the Deputy Director, seven ADs,
and the Chief Counsel. In making its decision, the
Advisory Board receives the assignment history, bid
history, entry on duty date, and the date of the last
promotion of each bidder or candidate listed on the
BQL. (Id.) For each vacant position, the relevant AD
makes a selection recommendation to the Advisory Board
from the BQL for that position. (Id. at 20.) Based on
the AD’s recommendation, the Advisory Board makes a
recommendation to the Director. (Id.)
II. AGENTS’ INDIVIDUAL CLAIMS
A. Reginald Moore
Reginald Moore has been employed by the Secret
Service for more than 20 years and served as a GS-13
agent in the Operations Section and the White House
Joint Operations Center. (Id. at 33 (citing Ex. 53).)
An African-American, Moore bid for and was not selected
for more than 180 GS-14 positions from 1999 to 2002,
and at one point was assigned to train a white selectee
for a position on which he had formerly bid. (Id. at
34-35.) Moore eventually was promoted to a GS-14 and a
GS-15 position, but he alleges that his promotions came
only after being transferred to a Chicago field office,
serving as an agent for 18 years, and filing an EEO
complaint and a lawsuit. (Id. at 35-36.)
B. Luther Ivery
Luther Ivery is an African-American former agent
who became eligible to bid on GS-14 positions in 1993,
but was not selected for more than 130 GS-14 positions.
For several positions, “his MPP score was not high
enough to place him on the [BQL].” (Id. at 37.) Ivery
alleges that even once he made the BQL, “he was passed
over for scores of promotions[.]” (Id.) Ivery was
promoted to a GS-14 position in 2002, but alleges that
his promotion came only as a result of his having filed
suit. (Id. at 39.) Ivery retired from the Secret
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Service in 2004, but asserts that “he would have
reached the GS-15 . . . level before retirement” had he
not experienced the Secret Service’s discriminatory
practices. (Id.)
C. John Turner
John Turner is an African-American former SA who
bid for more than 80 GS-14 positions for which he was
not selected. (Id. at 40.) Originally his MPP score
was not high enough to place him on the BQL, but once
it was, he was “nevertheless denied dozens of GS-14
positions on which he bid.” (Id.) Turner alleges that
he was promoted “six years after he first became
eligible” and only after filing an EEO complaint and a
lawsuit. (Id. at 41.)
D. Cheryl Tyler
Cheryl Tyler is a former SA who was employed by
the Secret Service from 1984 to 1999. (Id.) Tyler
alleges that she became eligible to bid for a GS-14
promotion in 1993, but deferred bidding until 1996
because her MPP scores were not competitive enough.
(Id. at 42-43.) Tyler was the only African-American
female SA in the Atlanta Field Office and that, “[a]t
the time she resigned, and . . . the filing of this
lawsuit, there were no African-American female Agents
in a GS-14 position.” (Id. at 41-42.) Another agent
was “troubled . . . by . . . Tyler’s experience in the
Secret Service’s Office of Training” because Tyler had
“worked in every possible assignment and/or position
within the Office, yet she was continually passed over
for promotion.” (Id. at 43 (quoting 7/28/00 Webb Decl.
¶ 36).) Tyler asserts that she resigned in 1999
“because she could not reach the GS-14 level as a
result of discrimination” and that the Agency told her
that it “was not ready for an African-American female
supervisor.” (Id. at 44 (citing C. Tyler Decl. ¶¶ 36,
34).)
E. Yvette Summerour
Yvette Summerour claims that she experienced
discrimination by the Secret Service even before it
hired her because it delayed her hiring by five years
and that, after being hired, from 1998 through 2001,
she “applied for and was denied promotion to almost 70
GS-14 positions.” (Id. at 44-45.) In the “calendar
year before this lawsuit was filed . . . , [she]
applied for and was denied promotion to twelve GS-14
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positions.” (Id. at 45.) Summerour also alleges that
she was “passed over for promotion in favor of a white
(male) Agent who had previously been transferred” as a
result of sexually harassing her. (Id. at 45-46.)
Summerour claims further that she was “denied dozens of
promotions for which she made the [BQL]” and that it
was only as a result of this lawsuit that she “was
finally promoted to a GS-14 position[.]” (Id. at 46.)
Summerour “and another African-American female [agent]
. . . were the first GS-14 African-American female
[SAs] in the history of the Secret Service.” (Id.)
F. Kenneth Rooks
Kenneth Rooks is an African-American SA who joined
the Secret Service in 1995 and has been a GS-13 since
approximately 2000. (Id. at 47.) Rooks asserts that
he has “bid for over 160 GS-14 positions, but has not
been promoted” and that, even though he received a high
score from his supervisor, he “was kept off the [BQL]
or ranked low on the [BQL], and thus was effectively
disqualified from promotions.” (Id. at 47-48.)
G. Andrew Harris
Andrew Harris was hired by the Secret Service in
1987 and alleges that due to the Secret Service’s
discriminatory practices against African-Americans, he
“had to file EEO complaints in order to be (1) hired,
(2) promoted to GS-14, and (3) promoted to GS-15.”
(Id. at 49.) Harris alleges that he “bid on and was
denied more than 20 GS-14 positions, despite his
qualifications, due to the discriminatory promotions
process.” (Id. (citing Ex. 80).) Harris alleges that
the Secret Service told him that he must “bid outside
of D.C. to be promoted” even though the requirement to
bid outside of the District of Columbia “is not written
in the MPP, and is not imposed on white Agents;
instead, it only serves as a barrier to the promotion
of African-American Agents.” (Id. at 51.) For
support, Harris compiled a list of “thirty-two non-
African-American Agents who were promoted from GS-13 to
GS-14, and from GS-14 to GS-15, without ever leaving
the Washington, D.C. area.” (Id. at 51-52 (citing Ex.
85).)
H. Leroy Hendrix
Leroy Hendrix alleges that “[b]ecause of the
Secret Service’s discriminatory promotions process,
[he] was forced to bid for more than 230 different GS-
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14 positions prior to finally being promoted, even
though he was qualified for each and every position.”
(Id. at 52 (citing Ex. 87).) Hendrix, an African-
American, further alleges that he was not selected for
a position “when his score was ten points higher than
the selectee’s score.” (Id. at 53 (citing Ex. 88 at
455).) Hendrix “bid on and was not selected for over
forty GS-15 positions” and claims that, although he was
“the most qualified choice” for a Special Services
Division/White House Mail position, he was not selected
and was “forced to vacate his office to make room for
the white selectee, and . . . train that Agent.” (Id.
at 53-54.) Hendrix states that he “was finally
promoted to a GS-15 Assistant Special Agent in Charge
position in the Los Angeles Field Office” but that “he
was required to accept a cross-country move to be
promoted[.]” (Id. at 54.)
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
on behalf of all current and former African-American
Agents who were employed as Criminal Investigators
(GS/GM-1811) and who had the required time-in-grade to
seek promotion to competitive positions at the GS-14
level at any time during the years 1995 to 2004, and/or
who had the required time-in-grade to seek promotion to
competitive positions at the GS-15 level at any time
during the years 1995 to 2005.
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’
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claims and there were conflicts of interest within the class.
Id. at 24, 35.
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
[a]ll current and former African-American Special
Agents who bid for promotion to a GS-14 position from
1995-2004 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 1995-2005 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, Deputy Director, or the Director of
the Secret Service during the class period.
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 (1993), arguing that
Dr. Mann’s expert opinions are unreliable and irrelevant.
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DISCUSSION
I. MOTION TO EXCLUDE EXPERT TESTIMONY2
Rule 702 provides:
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify
in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles
and methods; and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702. Under Rule 702, district courts are
gatekeepers of expert evidence. See Daubert, 509 U.S. at 589. A
court must determine as an initial matter whether the proffered
2
In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2553–54
(2011), the Supreme Court suggested that a court should probably
determine whether expert testimony is admissible under Rule 702
and Daubert at the class certification stage. See Wal-Mart, 131
S. Ct. at 2553–54 (“The District Court concluded that Daubert did
not apply to expert testimony at the certification stage of class
action proceedings. We doubt that is so[.]”) (citation omitted).
The D.C. Circuit has not spoken about whether district judges
must conduct a full Daubert analysis at the class certification
stage, and courts in other circuits disagree as to what is
required of a district judge deciding a motion for class
certification. See In re Rail Freight Fuel Surcharge Antitrust
Litig., 286 F.R.D. 88, 92 (D.D.C. 2012) (discussing circuit
split). Nevertheless, “dicta of the United States Supreme Court
should be very persuasive.” Gabbs Exploration Co. v. Udall, 315
F.2d 37, 39 (D.C. Cir. 1963) (internal quotation marks omitted);
see also Bangor Hydro-Electric Co. v. FERC, 78 F.3d 659, 662
(D.C. Cir. 1996) (stating that “Supreme Court dicta tend[] to
have somewhat greater force” than dicta from other courts).
Accordingly, the defendant’s motion to exclude Dr. Mann’s expert
testimony will be considered before turning to the plaintiffs’
motion for class certification.
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witness is qualified to give the expert opinion he seeks to
offer. See Kuhmo Tire Co. v. Carmichael, 526 U.S. 137, 156
(1999); Daubert, 509 U.S. at 589. Then, a court must “ensure
that any and all scientific testimony or evidence admitted is not
only relevant, but reliable.” Daubert, 509 U.S. at 589.
“Evidence is relevant if[] it has any tendency to make a fact [of
consequence] more or less probable than it would be without the
evidence[.]”. Fed. R. Evid. 401. When considering the
admissibility of scientific expert testimony, relevance is
primarily a question of “fit,” and “requires a valid scientific
connection to the pertinent inquiry as a precondition to
admissibility.” Daubert, 509 U.S. at 591–92.
Expert testimony is reliable if it is based on scientific
knowledge. Id. at 589-90. “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). “Expert testimony that rests
solely on ‘subjective belief or unsupported speculation’ is not
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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).
“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; 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,3 Dr. Mann would testify that “[t]he use of MPP
scores to create a cut-off for inclusion on the best qualified
3
The “applicant to best qualified list” analysis compares the
number of African-American SAs expected to make a best qualified
list for a position based on the number who applied for the
position with the actual number of African-American SAs who made
the best qualified list. See Pls.’ Opp’n to Mot. to Exclude Mann
Test., Ex. 2 (Fourth Supp. Decl. of Charles R. Mann, Ph.D. (“Mann
Decl.”)) ¶¶ 35-43.
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list disproportionately disqualifies African-American Special
Agents for promotion.” Pls.’ Opp’n to Def.’s Mot. to Exclude the
Test. of Charles R. Mann Offered in Supp. of Pls.’ Mot. for Class
Cert. (“Pls.’ Opp’n to Mot. to Exclude Mann Test.”) at 5; see
also Pls.’ Opp’n to Mot. to Exclude Mann Test., Ex. 2 (Fourth
Supp. Decl. of Charles R. Mann, Ph.D. (“Mann Decl.”)) ¶¶ 36–43.
Dr. Mann would testify that he found a statistically significant
racial disparity in GS-14 and GS-15 promotions for the background
period and the class period. Pls.’ Opp’n to Mot. to Exclude Mann
Test. at 5; see also Mann Decl. ¶¶ 36–43. Second, Dr. Mann
conducted a “mean rank” analysis4 and “effective pass rate”
analysis,5 and concluded that “the consideration of rank by MPP
score on the best qualified list disproportionately disadvantages
African-American Special Agents.” Pls.’ Opp’n to Mot. to Exclude
Mann Test. at 5; see also Mann Decl. ¶¶ 49–75. Dr. Mann would
testify that there is a statistically significant racial
disparity in the GS-14 and GS-15 position best qualified lists
during the background and class periods. Pls.’ Opp’n to Mot. to
Exclude Mann Test. at 5; see also Mann Decl. ¶¶ 49–75. Third,
4
The “mean rank” analysis compares “the average, or mean, rank
of African-American[] and non-African-American[ SAs] on the best
qualified list” based on their MPP scores. Pls.’ Opp’n to Mot.
to Exclude Mann Test. at 37.
5
The “effective pass rate” analysis tests “whether the effective
cut-off score” -- “the lowest MPP score held by an Agent who was
promoted” -- “on the best qualified list had an adverse impact on
African-Americans.” Pls.’ Opp’n to Mot. to Exclude Mann Test. at
38.
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based on his “best qualified to selected” analysis,6 Dr. Mann
concludes that “[f]ewer African-American Special Agents are
promoted from the best qualified list than would be expected in
the absence of discrimination[.]” Pls.’ Opp’n to Mot. to Exclude
Mann Test. at 5; see also Mann Decl. ¶¶ 45–48. Dr. Mann found
statistically significant racial disparities in GS-13 to GS-14
level promotions that occurred from 1998 to 2000, and in GS-14 to
GS-15 level promotions that occurred in 2002 to 2005. Pls.’
Opp’n to Mot. to Exclude Mann Test. at 5; see also Mann Decl.
¶¶ 45–48.
There is no dispute that Dr. Mann is qualified to offer
statistical expert testimony.7 Instead, the Secret Service
6
The “best qualified to selected” analysis “compares the number
of African American promotions ‘expected’ based on the number of
African Americans who made the best qualified list to the number
of African-Americans actually promoted.” Pls.’ Opp’n to Mot. to
Exclude Mann Test. at 41.
7
The defendant’s motion does not dispute that Dr. Mann is
qualified to offer expert opinions based on statistical analyses.
See also Pls.’ Opp’n to Mot. to Exclude Mann Test., Ex. 1
(Charles Mann Dep. at 7:15–20). Dr. Mann has a Bachelor of
Science in Applied Mathematics, a Master of Science in
Mathematical Statistics, and a doctorate in Statistics. Mann
Decl., Attach. A (Mann Resume at 1). Dr. Mann is the President
of a “consulting firm which provides statistical, econometric and
data processing services.” Id. In this capacity, Dr. Mann
“provides expert witness services and statistical guidance in
connection with a wide range of litigation.” Id. Dr. Mann has
also testified in numerous state and federal court proceedings.
See Mann Decl., Attach. A. (Mann Test. List). Based on his
extensive education and experience, Dr. Mann is qualified to
testify as an expert in statistics.
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argues that Dr. Mann’s testimony should be excluded because it is
unreliable and is not relevant.
A. Relevance
1. Relevance of statistical evidence to disparate
treatment pattern and practice claim and disparate
impact claim
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 disparate treatment pattern and
practice claims and disparate impact claims. Segar v. Smith, 738
F.2d 1249, 1266-67 (D.C. Cir. 1984). “Title VII prohibits both
intentional discrimination (known as ‘disparate treatment’) as
well as, in some cases, practices that are not intended to
discriminate but in fact have a disproportionately adverse effect
on minorities (known as ‘disparate impact’).” Ricci v.
DeStefano, 557 U.S. 557, 577 (2009). Disparate treatment occurs
“when an individual alleges that an employer has treated that
particular person less favorably than others because of the
plaintiff’s race, color, religion, sex, or national origin.”
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Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 985–86 (1988).
In a disparate treatment case, “the plaintiff is required to
prove that the defendant had a discriminatory intent or motive.”
Id. at 986. One method of proving disparate treatment is to show
that an employer engaged in a pattern and practice of
discrimination. Where a plaintiff alleges such systemic
discrimination, “[t]he ultimate factual issues are . . . simply
whether there was a pattern or practice of such disparate
treatment and, if so, whether the differences were ‘racially
premised.’” Int’l Bhd. of Teamsters v. United States, 431 U.S.
324, 335 (1977). In a pattern and practice case, a plaintiff has
to “establish by a preponderance of the evidence that racial
discrimination was the company’s standard operating procedure[,]
the regular rather than the unusual practice.” Id. at 336. The
plaintiff may meet his burden by offering circumstantial evidence
that is “entirely statistical in nature.” Palmer v. Shultz, 815
F.2d 84, 90 (D.C. Cir. 1987); see also Segar, 738 F.2d at 1267.
Statistics showing racial or ethnic imbalance are
probative in a [pattern and practice case] only because
such imbalance is often a telltale sign of purposeful
discrimination; absent explanation, it is ordinarily to
be expected that nondiscriminatory hiring practices
will in time result in a work force more or less
representative of the racial and ethnic composition of
the population in the community from which employees
are hired. Evidence of longlasting and gross disparity
between the composition of a work force and that of the
general population thus may be significant[.]
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Teamsters, 431 U.S. at 339 n.20; 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). 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; 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 or promotion in a . . . pattern
significantly different from that of the pool of applicants.’”
(internal quotation marks omitted) (quoting Albemarle Paper Co.
v. Moody, 422 U.S. 405, 425 (1975))). Despite the differences
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between pattern and practice disparate treatment claims and
disparate impact claims, “an important point of convergence” is
that both “are attacks on the systemic results of employment
practices.” Segar, 738 F.2d at 1267.
The pattern or practice claim amounts to an allegation
that an observed disparity is the systemic result of an
employer’s intentionally discriminatory practices. The
disparate impact claim amounts to an allegation that an
observed disparity is the systemic result of a specific
employment practice that cannot be justified as
necessary to the employer’s business. Consequently the
proof of each claim will involve a showing of disparity
between the minority and majority groups in an
employer’s workforce.
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.
2. Relevance of statistical evidence showing an
adverse impact at individual stages of a multiple
step employment decision process
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
-18-
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 (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. 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. 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. 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.
-19-
Although the “bottom line” defense is not applicable in a
disparate impact case, the Court in Teal noted that
a nondiscriminatory “bottom line” and an employer’s
good-faith efforts to achieve a nondiscriminatory work
force, might in some cases assist an employer in
rebutting the inference that particular action had been
intentionally discriminatory: “Proof that [a] work
force was racially balanced or that it contained a
disproportionately high percentage of minority
employees is not wholly irrelevant on the issue of
intent when that issue is yet to be decided.”
Id. (emphasis added) (quoting Furnco Constr. Corp. v. Waters, 438
U.S. 567, 580 (1978)) (citing Teamsters, 431 U.S. at 339 n.20).
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.
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).8
8
Contrary to the defendant’s argument, allowing statistical
evidence at the component level to create an inference of
discrimination to support the plaintiffs’ pattern and practice
claim is consistent with Moore I. In Moore I, the plaintiffs’
-20-
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
motion to enjoin the Secret Service from further use of the MPP
process was denied because the plaintiffs’ statistical evidence
was “insufficient to give rise to an inference that the
performance evaluation system is discriminatory[.]” 113 F. Supp.
2d at 7. The plaintiffs offered statistical evidence showing a
disparity between African-American and non-African-American SAs
promoted to GS-14 positions. However, the statistical analysis
erroneously assumed that all African-American GS-13 SAs were
eligible for promotion to GS-14 when, in reality, only SAs that
completed three years “in grade” and who bid on a position were
eligible. Id. at 20–21. That is, the plaintiffs’ evidence was
insufficient because it failed to control for the “most common
nondiscriminatory reason for a systemic disparity in treatment”:
ineligibility. Id. at 20. Because the plaintiffs’ statistical
evidence was not “‘based on a comparison of those [African-
American SAs] eligible for selection who were actually selected
with the corresponding proportion of eligible [non-African-
American SAs] who were actually selected[,]” id. (quoting Palmer,
815 F.2d at 90), the plaintiffs’ statistical evidence did “not
demonstrate that a racial disparity exists in the promotion of
GS-13s to GS-14[,]” id. at 21. Accordingly, the plaintiffs’
motion for preliminary injunction was denied because the
plaintiffs did not demonstrate a likelihood of success on the
merits. Id. at 21. Moore I stands for the proposition that
discrimination cannot be inferred from statistical analyses that
include African-American SAs who are ineligible for promotion in
the sample population. Here, Dr. Mann’s analyses consider only
GS-13s and GS-14s eligible for promotion. Mann Decl. ¶¶ 16–17;
see also Pls.’ Opp’n to Mot. to Exclude Mann Test. at 22.
Accordingly, Dr. Mann’s current analyses do not contain the same
deficiencies identified in the statistical analyses considered in
Moore I.
-21-
is relevant to the plaintiffs’ disparate treatment and disparate
impact claims.9
Dr. Mann’s testimony based on his mean rank and effective
pass rate analyses is also relevant to the plaintiffs’ claims.
The plaintiffs provide evidence that the members of the promotion
Advisory Board testified that they considered a SA’s rank on the
best qualified list when making promotion recommendations. See
id., Ex. 5 (Examples from Def.’s Resp. to Pls.’ Interrogs. 4(c));
see also Pls.’ Opp’n to Mot. to Exclude Mann Test. at 37. If a
SA’s rank on a best qualified list affects whether that SA will
be promoted, Dr. Mann’s mean rank analyses will help the trier of
fact determine whether the MPP process is discriminatory. The
plaintiffs also provide evidence that some “members of the
promotion Advisory Board . . . [felt] that some Special Agents
who made the best qualified list had scores that were simply too
9
That Dr. Mann did not directly compare the MPP scores received
by African-American and non-African-American SAs does not compel
a different conclusion regarding the relevancy of Dr. Mann’s
applicant to best qualified list analysis as the defendant
argues. The defendant asserts that the “fact in issue” is
“whether African-American SAs receive lower MPP scores than non-
African-American SAs.” Def.’s Mem. to Exclude Mann Test. at 33.
The plaintiffs establish, however, that Dr. Mann’s applicant to
best qualified list analysis is relevant because it “measure[s]
the adverse impact of how MPP scores are actually used,” Pls.’
Opp’n to Mot. to Exclude Mann Test. at 33, and “models the real-
world effect on African-American Agents of the MPP’s first use of
scores by measuring the impact by race on failure to make the
best qualified list,” id. at 34. The applicant to best qualified
list analysis is based on the MPP scores and is relevant as a
proxy for the scores. Because this analysis showing an adverse
impact on African-American SAs is probative of whether the MPP
process is discriminatory, it is relevant.
-22-
low to result in promotion.” Pls.’ Opp’n to Mot. to Exclude Mann
Test. at 38; see also id., Ex. 8 (Examples from Def.’s Resp. to
Pls.’ Interrogs. 4(c)). Based on this testimony, Dr. Mann
analyzed whether “there was an adverse impact on African-American
Special Agents with respect to Agents who made the best qualified
list yet had an MPP score lower than the effective cut-off
score.” Pls.’ Opp’n to Mot. to Exclude Mann Test. at 38. Thus,
even if a SA makes a best qualified list, his MPP score may be
too low to be considered for a promotion. Because the plaintiffs
have presented evidence that to actually be considered for a
promotion a SA must not only make the best qualified list but
must also have a competitive MPP score, Dr. Mann’s effective pass
rate analysis is relevant.
B. Reliability
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
-23-
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).
Dr. Mann described the application of his methodology.
First, he used information he received from the Secret Service to
define his pools, and considered pools composed of eligible
bidders “for whom selection would be a promotion (increase in
grade) and who ha[d] not already been selected for another
promotion from the bid list” who bid on any vacancy announcement
during a period of time. Mann Decl. ¶ 16. In his applicant to
selected analysis, Dr. Mann included only “informative” pools.
According to Dr. Mann, “informative” pools are diverse (i.e.,
“pools that have at least one African-American eligible and at
least one non-African-American eligible”) and competitive (i.e.,
pools that “have at least one successful eligible and at least
one not successful eligible”). Id. ¶ 77. Then, Dr. Mann
conducted the following analyses: (1) applicant to best qualified
list, (2) best qualified list to selected, (3) mean rank on the
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best qualified list, and (4) attainment of the effective pass
rate. Id. ¶¶ 36–43, 45–75. Finally, Dr. Mann reported that his
results were statistically significant when his analyses showed a
0.025 probability standard using a one-tailed test. Pls.’ Opp’n
to Mot. to Exclude Mann Test. at 23. Dr. Mann explained that he
used one-tailed tests instead of two-tailed tests because, unlike
a two-tailed test, a one-tailed test can be used to determine
whether an observed difference is adverse or favorable to
African-Americans.10 Mann Decl. ¶¶ 30-32. Dr. Mann’s analyses
report statistical significance over an aggregated period of
years as opposed to annually.
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
10
“[T]he terms ‘one-tailed’ and ‘two-tailed’[] . . . refer to
the ‘tails’ or ends of the bell-shape curve, which represents in
graph form a ‘random normal distribution.’” Palmer, 815 F.2d at
93 (citing W. Curtis, Statistical Concepts for Attorneys 72-73
(1983)). “In these random distributions, the area under any
segment of the bell curve measures the probability of that range
of results occurring randomly.” Id. As Dr. Mann asserts, one-
tailed and two-tailed analyses serve different purposes. A
one-tailed analysis tests whether a difference is significant in
one direction. For example, a one-tailed analysis can be used to
test “whether a group is disfavored in hiring decisions.”
Hartman v. Duffey, 88 F.3d 1232, 1238 (D.C. Cir. 1996). A
two-tailed analysis tests whether a difference is significant in
either direction. For example, a two-tailed analysis can be used
to test whether a group is treated differently -- be it better or
worse -- than another group. See Palmer, 815 F.2d at 95
(explaining that two-tailed tests can be used to identify
“statistically significant deviations in either direction from an
equality in selection rates”).
-25-
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 to be non-
informative is not a ground for excluding his testimony; instead,
“it provides subject matter for cross-examination.” Id. at 76.11
Similarly, the defendant’s argument that Dr. Mann did not report
11
An expert who fails to review relevant data, and can offer no
good reason for it or does not understand the omitted relevant
data, has not reliably applied a scientific methodology. See
Fed. R. Evid. 702(d). That, of course, did not occur here.
-26-
all of the results from his best qualified to selected analysis,
Def.’s Mem. to Exclude Mann Test. at 22–23, is not conclusive
because Dr. Mann was not required to apply his methodology “to
all the evidence presented.” See Johnson, 525 F. Supp. 2d at
75–76. His testimony must be based upon “sufficient” facts or
data. Fed. R. Evid. 702(b).
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 (1977) (citing Teamsters, 431 U.S. at 339). “[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
-27-
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.
-28-
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’ of defendant’s policies, whether discriminatory or
not.’”). The plaintiffs have provided sufficient evidence that
the MPP process did not substantially change over the class
period. Thus, it was a reliable for Dr. Mann to aggregate data
across several years.
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,
-29-
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.12 However, even if the defendant’s arguments based
12
The plaintiffs argue that Dr. Malowane’s declaration should be
stricken under Federal Rule of Civil Procedure 37(c) as having
been disclosed untimely in violation of Rule 26(a)(2), or
alternatively, 26(a)(1). Rule 26(a)(2) requires that a party
“disclose to the other parties the identity of any [expert]
witness it may use at trial[.]” Fed. R. Civ. P. 26(a)(2)(A)
(emphasis added). Rule 26(a)(1) requires that a party disclose
the name and address “of each individual likely to have
discoverable information . . . that the disclosing party may use
to support its claims or defenses[.]” Fed. R. Civ. P.
26(a)(1)(A). “If a party fails to provide information or
identify a witness as required by Rule 26(a) or (e), the party is
not allowed to use that information or witness to supply evidence
on a motion . . . unless the failure was substantially justified
-30-
or is harmless.” Fed. R. Civ. P. 37(c). The plain language of
Rule 26(a)(2) limits the rule to experts who may testify at
trial. Because the defendants insist that Dr. Malowane will not
testify at trial, Rule 26(a)(2) does not support striking her
declaration.
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
under Daubert a judge at an in limine hearing must make
findings of fact on the reliability of complicated
scientific methodologies and this fact-finding can
decide the case, it is important that each side have an
opportunity to depose the other side’s experts in order
to develop strong critiques and defenses of their
expert’s methodologies.
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
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on Dr. Malowane’s untimely declaration were considered, they
would not be grounds to find that Dr. Mann’s testimony is
inadmissible because Dr. Malowane erroneously assumes that
Dr. Mann conducted several, individual tests within each
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.
-32-
analysis.13 However, the plaintiffs and Dr. Mann insist that
Dr. Mann did not independently consider the pools; instead, the
results from individual year and position analyses are
“components of aggregated analyses[.]” Pls.’ Opp’n to Mot. to
Exclude Mann Test. at 13. Because Dr. Mann aggregated the data
in his analyses, Dr. Malowane’s argument that Dr. Mann should
have considered the probability that his “individual” results
were the result of random error is inapplicable.
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.
II. MOTION FOR CLASS CERTIFICATION
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).
A. Rule 23(a) prerequisites
Under Rule 23(a), the party seeking class certification must
show that:
(1) the class is so numerous that joinder of all
members is impracticable [(“numerosity”)];
(2) there are questions of law or fact common to the
class [(“commonality”)];
13
In her declaration, Dr. Malowane asserts that Dr. Mann
analyzed 84 subsets of data in his applicant to best qualified
analysis, Def.’s Mem. to Exclude Mann Test., Ex. 1 (Malowane
Decl. ¶ 11), and that Dr. Mann conducted 28 tests in his best-
qualified list to selected analysis, id. ¶ 33.
-33-
(3) the claims or defenses of the representative
parties are typical of the claims or defenses of the
class [(“typicality”)]; and
(4) the representative parties will fairly and
adequately protect the interests of the class
[(“adequacy of representation”)].
Fed. R. Civ. P. 23(a); see also Wal-Mart Stores, Inc. v. Dukes,
131 S. Ct. 2451, 2548 (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 (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 (1974). In considering a motion for class
certification, a court presumes the allegations in the complaint
to be true. Stephens v. US Airways Group, Inc., Civil Action No.
07-1264 (RMC), 2012 WL 6086930, at *3 (D.D.C. Dec. 7, 2012).
-34-
1. Numerosity
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 (1980)
(explaining that the numerosity requirement “imposes no absolute
limitations”). Instead, courts must examine “the specific facts
of each case[,]” Gen. Tel. Co. of the Nw., 446 U.S. at 330,
“including ‘geographic dispersion of class members.’” Encinas,
265 F.R.D. at 8 (quoting Robidoux v. Celani, 987 F.2d 931, 936
(2d Cir. 1993)).
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
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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 5.14 As Moore III found, a proposed class of
120 members satisfies the numerosity requirement.
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
14
The plaintiffs derive this number from the “‘bid database’
produced by Defendant in discovery[.]” Pls.’ Mem. for Class
Cert. at 45. According to the plaintiffs, the database shows
that “127 different African-American Special Agents actually bid
on GS-14 or GS-15 positions during the class period.” Id. After
excluding “those who were selected for promotion on their first
bid and those who served as the Director, the Deputy Director, or
an Assistant Director during the class period,” the proposed
class includes 120 members. Id. at 45–46.
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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
(suggesting that 15 class members is too few for a Title VII
class action).
2. Commonality
Commonality under Rule 23(a)(2) requires the court to
determine whether there is at least one question of law or fact
common to the class. Wal-Mart, 131 S. Ct. at 2556. “‘[F]actual
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variations among the class members will not defeat the
commonality requirement, so long as a single aspect or feature of
the claim is common to all proposed class members.’” Encinas,
265 F.R.D. at 8 (quoting Bynum v. District of Columbia, 217
F.R.D. 43, 46 (D.D.C. 2003)). To satisfy this requirement, a
plaintiff must “demonstrate that the class members ‘have suffered
the same injury[.]’” Wal-Mart, 131 S. Ct. at 2551 (quoting
Falcon, 457 U.S. at 157). That is to say, “[t]heir claims must
depend upon a common contention[.]” Id. The “common contention”
must be “capable of classwide 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. A plaintiff’s burden is to “bridge the gap”
between her individual claim and “the existence of a class of
persons who have suffered the same injury as that individual[.]”
Falcon, 457 U.S. at 157.
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); see also Love v. Johanns, 439 F.3d 723, 728
(D.C. Cir. 2006) (explaining that in cases where plaintiffs
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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.
a. Statistical evidence
The plaintiffs rely on Dr. Mann’s report to show that the
“MPP promotions policy operates to adversely impact class
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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 lists and
African-American SAs on best qualified lists with an MPP score
above the effective pass rate are statistically significant.
Dr. Mann further found that for the years 1998 to 2000, the
difference between expected African-American promotions in the
absence of discrimination, taking as a given the presence of
African-Americans on the best qualified list, and actual African-
American promotion to GS-14 positions was statistically
significant. See Pls.’ Opp’n to Mot. to Exclude Mann Test. at 5;
see also Mann Decl. ¶¶ 49–75. For the years 2002 to 2005, the
difference between expected African-American promotions in the
absence of discrimination, taking as a given the presence of
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African-Americans on the best qualified list, and actual African-
American promotion to GS-15 positions was statistically
significant. Pls.’ Opp’n to Mot. to Exclude Mann Test. at 5; see
also Mann Decl. ¶¶ 45–48.
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.
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b. Anecdotal evidence
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. 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.
3. Typicality
“Typicality requires that the claims of the representative
be typical of those of the class.” Taylor, 241 F.R.D. at 44
-42-
(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 there is some
factual variation between them.”). “[A] class representative’s
claims are typical of those of the class if ‘the named
plaintiffs’ injuries arise from the same course of conduct that
gives rise to the other class members’ claims.’” Id. (quoting
Bynum v. District of Columbia (Bynum I), 214 F.R.D. 27, 35
(D.D.C. 2003)).
“[T]he commonality and typicality requirements of Rule
23(a) tend to merge. Both serve as guideposts for
determining whether under the particular circumstances
maintenance of a class action is economical and whether
the named plaintiff’s claim and the class claims are so
interrelated that the interests of the class members
will be fairly and adequately protected in their
absence.”
Wal-Mart, 131 S. Ct. at 2551 n.5 (quoting Falcon, 457 U.S. at 157
n.13).
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
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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).
4. Adequacy of representation
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
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their name.” Phillips v. Klassen, 502 F.2d 362, 366 (D.C. Cir.
1974) (quoting Hansberry v. Lee, 311 U.S. 32, 44 (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 within the [proposed]
class” and that “several potential class members were directly
involved in the Peer Panel or Second Level evaluation process[.]”
Id. at 34. Involvement in the review panels “raises a specter of
these class members’ participation in the discriminatory conduct
of which plaintiffs complain.” Id. Accordingly, representation
as proposed was found to be inadequate. Id. at 35. (“Although
the existence of supervisors among the class members does not
automatically undermine the adequacy of representation, the
conflict of interests here -- which includes direct accusations
of discrimination among and between class members and class
representatives -- is not insignificant.”).
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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
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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.15 Because the record does not
show specific allegations of discrimination by class members
against other class members, the representation as proposed is
adequate. See, e.g., McReynolds I, 208 F.R.D. at 445–48 (finding
that the presence of both supervisors and non-supervisors in a
15
The defendant also argues that the plaintiffs’ accusations of
generally discriminatory behavior by others in the class and
plaintiffs’ allegations that putative class members tried to
discourage African-American SAs from participating in this civil
action preclude class certification. While these statements do
demonstrate conflicts within the class, they do not reflect on
the specific claims in the lawsuit. Thus, they are not relevant
to the adequacy of representation determination. See McReynolds
I, 208 F.R.D. at 446.
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class does not undermine adequacy of representation where there
were no direct accusations of discrimination within the class).
B. Rule 23(b) requirement
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:
(A) the class members’ interests in individually controlling
the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the
controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the
litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Fed. R. Civ. P. 23(b)(3).
1. Whether common questions of law or fact
predominate over questions affecting only
individual members
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.
-48-
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
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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,16 are not relevant to the
plaintiffs’ disparate impact claim, and thus do not destroy
predominance.
2. Whether class action is superior method of
adjudication
“‘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
16
In Teamsters, the Supreme Court adopted a bifurcated approach
for pattern and practice class actions. In the first stage,
regarding liability, the plaintiffs have the burden to
“demonstrate that unlawful discrimination has been a regular
procedure or policy followed by an employer or group of
employers.” Teamsters, 431 U.S. at 360. “If the plaintiffs
succeed in establishing liability in the first phase, the court
may order class-wide injunctive and declaratory relief.” Taylor,
205 F.R.D. at 46 (citing Teamsters, 431 U.S. at 336). “If the
plaintiffs also seek individual monetary relief, they proceed to
the second phase, called a ‘Teamsters hearing.’” Id. (citing
Hartman, 88 F.3d at 1235 n.2). At the “Teamsters hearing,” the
plaintiffs are entitled to the presumption that “individual
[employment] decisions were made in pursuit of the discriminatory
policy[,]” Teamsters, 431 U.S. at 359, and the burden is on the
defendant to show that there was a legitimate, non-discriminatory
reason for the adverse employment decision such that the employee
is not entitled to additional, individualized relief. See
Hartman, 88 F.3d at 1235 n.2.
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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
-51-
(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).
C. Notice
If a court certifies a class under Rule 23(b)(3),
the court must direct to class members the best notice
that is practicable under the circumstances, including
individual notice to all members who can be identified
through reasonable effort. The notice must clearly and
concisely state in plain, easily understood language:
(i) the nature of the action;
(ii) the definition of the class certified;
(iii) the class claims, issues, or defenses;
(iv) that a class member may enter an appearance
through an attorney if the member so desires;
(v) that the court will exclude from the class any
member who requests exclusion;
(vi) the time and manner for requesting exclusion;
and
(vii) the binding effect of a class judgment on
members under Rule 23(c)(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.
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D. Appointment of class counsel
The plaintiffs also seek an order appointing current
plaintiffs’ counsel as class counsel. Rule 23(g) requires a
court to appoint
adequate class counsel to represent the class after
considering: (1) the work counsel has done in
identifying or investigating potential claims in this
action, (2) counsel’s experience in handling class
actions, other complex litigation, and claims of the
type asserted in the action, (3) counsel’s knowledge of
the applicable law, and (4) the resources counsel will
commit to representing the class.
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.
CONCLUSION AND ORDER
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
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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
2005. The following will be appointed as class counsel: John P.
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Relman, Jennifer I. Klar, and Megan Cacace of Relman, Dane &
Colfax PLLC, and E. Desmond Hogan of Hogan Lovells USA. It is
further
ORDERED that the plaintiffs file by March 18, 2013 a
proposed order that complies with the requirements in Rule
23(c)(2)(B).
SIGNED this 25th day of February, 2013.
/s/
RICHARD W. ROBERTS
United States District Judge
Moore v. Napolitano
Court: District Court, District of Columbia
Date filed: 2013-02-25
Citations: 926 F. Supp. 2d 8
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