UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
KENNETH CAMPBELL, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 99-2979 (EGS)
)
NATIONAL RAILROAD PASSENGER )
CORPORATION, )
)
Defendant. )
________________________________)
________________________________
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LORETTA K. BETHEA, )
)
Plaintiff, )
)
v. ) Civil Action No. 01-1513 (EGS)
)
AMTRAK POLICE DEPARTMENT, )
)
Defendant. )
________________________________)
MEMORANDUM OPINION
Plaintiffs — seventy-one African-American current or former
employees or applicants for employment at defendant National
Railroad Passenger Corporation (“Amtrak”) — allege that Amtrak
engaged in racial discrimination in its hiring, promotion, and
disciplinary practices and created a hostile work environment.
Plaintiffs bring this lawsuit on behalf of themselves and more
than 11,000 African-American unionized Amtrak employees, former
employees, and applicants for employment at Amtrak.
Pending before the Court are plaintiffs’ motion for class
certification, Amtrak’s motions to exclude a number of
plaintiffs’ experts, Amtrak’s motion to strike portions of the
declarations filed by plaintiffs in support of class
certification, Amtrak’s motion to strike portions of plaintiffs’
reply in support of their motion for class certification, and
Amtrak’s motion for partial summary judgement. As explained more
fully below, because plaintiffs’ class definitions make
membership in plaintiffs’ proposed class contingent on
individualized merits determinations, and because plaintiffs
have failed to meet their burden to establish that the claims of
all class members are susceptible to common proof, plaintiffs’
motion for class certification is DENIED. In addition, Amtrak’s
motion to exclude Jay Finkelman’s expert report and testimony is
GRANTED, Amtrak’s motion to exclude Thomas Roth’s expert report
and testimony is DENIED, Amtrak’s motion to exclude Edwin
Bradley and Liesl Fox’s expert report and testimony is DENIED,
Amtrak’s motion to strike portions of plaintiffs’ declarations
is GRANTED in part, Amtrak’s motion to strike portions of
plaintiffs’ reply brief is GRANTED in part and DENIED in part,
and Amtrak’s partial motion for summary judgment is GRANTED.
In Part I of this opinion, the Court sets forth the
procedural history of this litigation. Part II sets forth
factual background regarding Amtrak’s structure, hiring and
2
promotions decisions, disciplinary system, and work environment.
In Parts III and IV, the Court analyzes the admissibility of
various experts and other evidence offered in support of
plaintiffs’ motion for class certification. Part V discusses
whether class certification is warranted in this case and,
finally, Part VI resolves Amtrak’s partial motion for summary
judgment on plaintiffs’ disparate-impact claims.
I. PROCEDURAL HISTORY
A. The Initial And Amended Complaints
This employment discrimination class-action was filed on
November 9, 1999 on behalf of current and former African-
American employees of Amtrak’s Intercity Strategic Business Unit
or applicants for employment in that unit. Compl., ECF No. 1.
Plaintiffs alleged claims for violations of the Civil Rights Act
of 1866, 42 U.S.C. § 1981, and violations of Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e,
against Amtrak and a myriad of labor unions representing certain
plaintiffs. Id. An amended complaint was filed on March 13,
2000, adding a number of named plaintiffs and a handful of labor
unions as defendants. First Am. Compl., ECF No. 30.
B. The Court Adjudicates A Series Of Dispositive Motions
The first round of dispositive motions was filed in May
2000 in response to the amended complaint. Although a number of
labor-union defendants answered the amended complaint, a few
3
moved to dismiss on the ground that the labor unions were not
“indispensable parties” to the litigation and would be better
joined in the liability phase of the lawsuit if plaintiffs
prevailed on their discrimination claims against Amtrak. See
Union Defs.’ Mot. to Dismiss, ECF No. 40; Union Defs.’ Mot. to
Dismiss, ECF No. 48. Amtrak also moved to dismiss plaintiffs’
class claims, arguing that no amount of discovery would render
plaintiffs’ proposed classes certifiable under Federal Rule of
Civil Procedure 23. See Def.’s Mot. to Dismiss, ECF No. 47.
Amtrak moved separately to dismiss the individual claims of
plaintiffs on a variety of grounds or, in the alternative, for a
more definite statement of those claims. See Def.’s Mot. to
Dismiss, ECF No. 50.
Shortly after those motions were briefed, plaintiffs moved
for a temporary restraining order and preliminary injunction in
order to enjoin Amtrak from “discriminating, disciplining,
intimidating, or in any other way retaliating” against
plaintiffs and class members. See Pls.’ Mot. for TRO/PI, ECF No.
51. The Court denied the request for temporary injunctive relief
on June 12, 2000. See Order, ECF No. 62. Thereafter, the Court
granted the motions of the union defendants to be dismissed from
the case, subject to their being rejoined in the event
plaintiffs are successful on their liability claims and the
4
union defendants are necessary to the finalization of an
appropriate remedy. See Order, ECF No. 63; Order, ECF No. 64.
A second amended complaint, filed August 22, 2000, added
one named plaintiff and eliminated the labor-union defendants.
See Second Am. Compl., ECF No. 79. On January 26, 2001, the
Court denied Amtrak’s motion to dismiss plaintiffs’ class
claims. See Mem. Op. and Order, ECF No. 92. The Court determined
that dismissal of the class claims was premature given the early
stage of the proceedings, particularly because additional
discovery could permit plaintiffs to correct any fatal flaws in
their class definition. Id. at 3. 1 Later that year, the Court
denied Amtrak’s motion to dismiss plaintiffs’ individual claims.
See Campbell v. Amtrak, 163 F. Supp. 2d 19 (D.D.C. 2001). In so
doing, the Court rejected all four of Amtrak’s arguments for
dismissal, namely that: “1) certain 42 U.S.C. § 1981 claims are
barred by the statute of limitations; 2) claims of plaintiffs
who previously filed a charge involving the same conduct
complained of here, but failed to sue, are barred by the statute
of limitations in their right-to-sue letters; 3) certain Title
VII claims are barred by the statute of limitations; and 4)
claims which do not allege a timeframe fail to state Title VII
1 When citing to the electronic filings in this opinion, the
Court cites to the ECF page numbers, not the page number of the
filed document.
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claims.” Id. at 21. The Court granted in part, however, Amtrak’s
motion for a more definite statement, ordering “plaintiffs to
include dates of alleged events, to the extent possible, in an
amended complaint” and “to amend their pleading to include a
more appropriate term to define the class, so as to exclude from
the class definition the salaried managerial and professional
positions that were included within the scope of the McLaurin
class action discrimination case against Amtrak.” Id. at 28.
Plaintiffs filed a third amended complaint on January 3,
2002 to address the concerns set forth in the Court’s dismissal
Order. See Third Am. Compl., ECF No. 100. On May 27, 2002,
plaintiffs filed the fourth amended — and currently operative —
complaint. See Fourth Am. Compl., ECF No. 145. The complaint was
amended in response to a decision by the parties to merge
twenty-one discrimination lawsuits filed by current and former
Amtrak employees in the Eastern District of Louisiana into the
putative Campbell classes. See Pls.’ Mem. in Supp. of Mot. to
Amend, ECF No. 143 at 3-4. The parties also agreed to add one
plaintiff from the Louisiana actions — Joseph McDonald — as a
named plaintiff in this action. See id. at 4-5.
On February 4, 2002, Amtrak moved to dismiss some of the
individual claims contained in the third amended complaint, see
Def.’s Mot. to Dismiss, ECF No. 104, which it supplemented in
response to the fourth amended complaint on August 28, 2002, see
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Def.’s Suppl. Mem. in Supp. of Mot. to Dismiss, ECF No. 127. On
September 26, 2002, the Court denied Amtrak’s motion. See
Campbell v. Amtrak, 222 F. Supp. 2d 8 (D.D.C. 2002). Amtrak had
sought to dismiss one plaintiff’s claims on the grounds that the
continuing-violations theory could not save those claims from
being barred by the statute of limitations, to dismiss six other
plaintiffs’ claims as “based on expired right-to-sue notices,”
and to dismiss the claims of three other plaintiffs as barred by
the settlement of another class-action lawsuit. See id. at 9. In
denying Amtrak’s motion to dismiss, the Court found that the
continuing-violations theory could bring one plaintiff’s claims
within the statutory period, that further factual development
was required to determine whether other plaintiffs were entitled
to equitable tolling of the statute of limitations, and that
plaintiffs’ claims were not clearly covered by the settlement
agreement. Id. at 10-14.
C. The Related Case Of Bethea v. Amtrak Police Department
On July 11, 2001, Loretta Bethea filed an individual
employment-discrimination lawsuit against the Amtrak Police
Department in this court. See Compl., Bethea v. Amtrak Police
Department, No. 01-cv-01513, ECF No. 1. Ms. Bethea alleged that
she had suffered discrimination on the basis of her race and
gender in connection with promotions and discipline. See
generally id. Amtrak answered the complaint on September 6,
7
2001. See Answer, Bethea v. Amtrak Police Department, No. 01-cv-
01513, ECF No. 5. On July 11, 2011, the parties requested a
continuance of the initial scheduling conference in view of a
request to consolidate Bethea with Campbell for pretrial
purposes, see Joint Mot. to Continue, Bethea v. Amtrak Police
Department, No. 01-cv-01513, ECF No. 11, and on May 2, 2003, the
cases were consolidated for pretrial purposes, see Order, ECF
No. 139.
D. The Parties Proceed To Class-Certification Discovery
Meanwhile, discovery was well under way in Campbell.
Immediately after denying Amtrak’s 2002 motion to dismiss, the
Court entered an Order directing the parties to propose “an
appropriate schedule for the completion of discovery in this
matter.” Order, ECF No. 132 at 1. After receiving the parties’
proposal, the Court entered a Scheduling Order on November 7,
2002. See Sched. Order, ECF No. 135. The Scheduling Order
provided that class-certification discovery would be completed
by November 5, 2003, with expert-discovery regarding class
certification to be completed by February 5, 2004. See id. at 1—
2. The parties had also requested that the Court set a schedule
for summary-judgment briefing. See Joint Status Report, ECF No.
133. The Court directed that both the class-certification and
summary-judgment motions be filed by April 5, 2004, with the
8
motions to be ripe by July 6, 2004. See Scheduling Order, ECF
No. 135 at 3.
This schedule was extended at the parties' request on many
occasions. See Am. Sched. Order, ECF No. 155; Minute Order of
March 26, 2004; Am. Sched. Order, ECF No. 186; Minute Order of
Sept. 14, 2004; Am. Sched. Order, ECF No. 205; Minute Order of
Jan. 14, 2005. The parties requested additional continuances to
work through discovery disputes and to create a joint database
of employment-related data. See Minute Order of Sept. 9, 2005;
Pls.’ Mot. for Sanctions, ECF No. 231; Minute Order of Nov. 8,
2006.
On December 30, 2010, the Court entered a Revised
Scheduling Order providing that the motions for class
certification and summary judgment would be fully briefed by
December 23, 2011. Sched. Order, ECF No. 280. That schedule was
again modified due to the Supreme Court’s grant of certiorari in
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 354 (2011). Minute
Order of May 10, 2011.
E. The Parties Brief Their Motions For Class
Certification And Summary Judgment
On February 21, 2012, plaintiffs filed their motion for
class certification. See Pls.’ Mot. to Certify Class, ECF No.
303. Amtrak filed its opposition on June 26, 2012, along with
its motion for partial summary judgment. See Def.’s Opp. to Mot.
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to Certify Class, ECF No. 320; Def.’s Mot. for Summ. J., ECF No.
328. On the same day, Amtrak filed its motions to exclude the
report and testimony of several of plaintiffs’ experts. See
Def.’s Mot. to Exclude Finkelman, ECF No. 319; Def.’s Mot. to
Exclude Roth, ECF No. 329; Def.’s Mot. to Exclude Bradley and
Fox, ECF No. 331. Amtrak further moved to partially strike the
declarations of certain putative class members offered in
support of plaintiffs’ motion for class certification. See
Def.’s Mot. to Strike, ECF No. 330. These motions were all ripe
by January 4, 2013.
The parties had agreed to engage in private mediation for a
period of ninety days following the exchange of expert reports,
class-certification briefing, and summary-judgment briefing. See
Joint Proposed Sched. Order, ECF No. 310 at 2. Accordingly, the
Court held in abeyance the parties’ motions pending the
conclusion of mediation. See Minute Order of Sept. 27, 2012. On
March 4, 2013, the parties filed a joint status report
indicating that mediation had been unsuccessful. See Joint
Status Report, ECF No. 363. The Court subsequently requested
that the parties file supplemental briefing discussing any new
legal authority regarding class certification. See Minute Order
of December 2, 2013. The parties submitted their supplemental
briefing in early 2014. See Pls.’ Supp. Class Cert. Mem., ECF
10
No. 370; Def.’s Resp. to Pls.’ Supp. Class Cert. Mem., ECF No.
371.
II. BACKGROUND
A. Amtrak’s Structure
Amtrak provides passenger rail service through forty-six
states and the District of Columbia. See Report of Drs. Edwin L.
Bradley and Liesl M. Fox (“Bradley/Fox Rep.”), ECF No. 304-1 at
3. In the period after its inception in 1971, Amtrak was
“basically a centrally managed corporation in D.C.” Dep. of
Gilbert Mallery (“Mallery Dep.”), ECF No. 323-7 at 4. In 1994,
Amtrak began creating “strategic business units” or “SBUs” with
the goal of organizing the business “around the services that
existed” as opposed to around a corporate headquarters. Dep. of
Lee W. Bullock (“Bullock Dep.”), ECF No. 323-1 at 6; see also
Mallery Dep., ECF No. 323-7 at 4 (explaining that the SBUs were
created “to decentralize decision making” and “to move decision
making in the corporation closer to the customers”). While
decisions relating to Amtrak’s “financial targets” and “ultimate
strategy” for the collective-bargaining process were still
centered in Amtrak’s corporate headquarters in the District of
Columbia, other decisions, like those related to budgets and
marketing, were delegated to the SBUs. Bullock Dep., ECF No.
323-1 at 9. For example, although the SBUs followed the “broad”
human-resources policies set at the corporate level, each SBU
11
had its own human-resource director and decisions with respect
to “hiring and firing” employees were made at the SBU level.
Mallery Dep., ECF No. 323-7 at 4-5. Thus, while Amtrak’s
corporate headquarters endeavored to ensure that any “federal
and company-wide mandates were complied with,” “the day-to-day
decisions were delegated to the HR professionals in the business
units” who “basically enforced, monitored, controlled to make
sure those corporate policies were followed.” Id. at 5.
The SBUs were disbanded in 2002, and Amtrak returned to a
more traditional structure under which it was organized by
functional department at the corporate level and by operating
division at the field level. Decl. of Patricia Kerins (“Kerins
Decl.”), ECF No. 328-7 ¶ 28; Dep. of Edward Valentine Walker,
III (“Walker Dep.”), ECF No. 309-4 at 3. Although Amtrak has
eighteen departments, plaintiffs’ expert Thomas Roth postulates
that approximately ninety-seven percent of Amtrak’s unionized
workforce resides in one of five departments. Decl. and Expert
Rep. of Thomas R. Roth (“Roth Rep.”), ECF No. 304-2 ¶¶ 8, 15.
According to Mr. Roth, these five departments coincide with five
functional categories — or “craft” groups — that are useful “for
analytical purposes”: operating, equipment maintenance,
maintenance of way, clerical/on-board services, and security.
Id. ¶ 9. Mr. Roth opines that employees in these five craft
groups have “a fundamentally shared function” and that the jobs
12
in each of the categories “share common work sites and
supervision.” Id. ¶ 21. In addition, Mr. Roth asserts that, even
though Amtrak’s employees are represented by seventeen different
unions, employees within each craft group tend to negotiate
common terms and common work conditions in their collective-
bargaining agreements. Id. ¶ 25. Finally, Mr. Roth notes that
the “rules governing discipline and grievances are common to a
substantial degree within each functional employee group.” Id. ¶
31.
B. Hiring And Promotions
Amtrak has a corporate hiring, promotion, and transfer
policy that was created “to provide guidelines to Amtrak
supervision on how jobs are filled through employment,
promotion, and transfer of employees.” See May 1, 1994 Amtrak
Employment/Promotion/Transfer Policy (“1994 Amtrak Hiring
Policy”), ECF No. 307-2 at 3. This policy has been the same
since January 1, 1989. See, e.g., Jan. 1, 1989 Amtrak
Employment/Promotion/Transfer Policy, ECF No. 307-1 at 3; Sept.
2000 Amtrak Employment, Promotion and Transfer Policy, ECF No.
307-3 at 3.
Pursuant to that policy, positions covered by collective-
bargaining agreements (“agreement-covered positions”) must be
“advertised for bid in accordance with the applicable labor
agreement.” 1994 Amtrak Hiring Policy, ECF No. 307-2 at 12.
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Local employees who are members of the union that covers the
vacant position are eligible to bid on the position. Decl. of
Sarah Ray (“Ray Decl.”), ECF No. 322-5 ¶ 4. Generally, the most
senior employee who places a bid and otherwise meets the
qualifications is placed in the position. Id. ¶ 5. If no local
employee bids on the position, then human resources will
determine if a member of the relevant union in a different
geographic location wishes to transfer to take the position. Id.
¶ 7. That employee would also be required to meet any
qualification requirements before being awarded the position
permanently. Id.
When positions are not filled after this internal bidding
process, certain steps must be taken to fill a vacancy. See 1994
Amtrak Hiring Policy, ECF No. 307-2 at 13. The hiring process
begins with the job requisition form, which provides detailed
information regarding the duties and responsibilities associated
with the position, the requisite qualifications and experience
required, and any preferred qualifications and experience. Id.
at 8; Ray Decl., ECF No. 322-5 ¶ 10. Generally, a hiring manager
will determine the hiring criteria for an open position by
reviewing a job description or prior requisition forms. Ray
Decl., ECF No. 322-5 ¶ 11; Decl. of Suzanne Allan (“Allan
Decl.”), ECF No. 321-3 ¶ 5. The process of preparing and
14
approving a job requisition form varies by department. Decl. of
Barbara Wu (“Wu Decl.”), ECF No. 322-8 ¶ 4.
The selection criteria for each position vary significantly
and depend on the job description and requirements described in
the job requisition form. Wu Decl., ECF No. 322-8 ¶ 9; Ray
Decl., ECF No. 322-5 ¶ 12. Local applicants are preferred for
certain positions, especially those for on-board crew. Wu Decl.,
ECF No. 322-8 ¶ 9; Ray Decl., ECF No. 322-5 ¶ 22. Someone in
human resources is responsible for screening all the
applications for a particular job to determine which applicants
match the minimum requirements, have similar experience to that
of the position at issue, and have a stable employment history.
Wu Decl., ECF No. 322-8 ¶ 9. A hiring manager may ask that the
human-resources recruiter provide the applications for all
candidates that meet the minimum requirements of the position or
may request applications from only the most qualified
applicants. Ray Decl., ECF No. 322-5 ¶ 25.
Almost all agreement-covered positions require that the
applicant pass a test or set of tests prior to becoming eligible
for interviews. Wu Decl., ECF No. 322-8 ¶ 10. Applicants who
meet the minimum requirements for a vacancy are invited to take
the test. Kerins Decl., ECF No. 328-7 ¶ 8. The tests
administered vary depending on the position and the union
involved, and they have changed over time. Wu Decl., ECF No.
15
322-8 ¶ 10. Passing a test does not necessarily mean that the
applicant will be interviewed for the position; rather, only the
most qualified applicants are generally interviewed for each
position. Id. ¶ 13. Typically, at least three to five applicants
are selected to be interviewed for each vacancy. Ray Decl., ECF
No. 322-5 ¶ 29; Allan Decl., ECF No. 321-3 ¶ 10.
The hiring manager, in consultation with others, develops a
set of interview questions. Wu Decl., ECF No. 322-8 ¶ 15. The
types of questions asked during an interview depend on the
position at issue, any unique requirements relating to the
particular opening, and the preferences of the hiring manager.
Kerins Decl., ECF No. 328-7 ¶ 13. Each applicant who interviews
for a particular position is asked the same set of questions. Wu
Decl., ECF No. 322-8 ¶ 15. Interviews are conducted by panels of
managers and, in some cases, a union representative. Id. ¶ 17.
At some point before they start conducting interviews, most
managers participate in a behavioral-based interview training
led by a member of the human-resources department. Kerins Decl.,
ECF No. 328-7 ¶ 12; Decl. of Karen Broadwater, ECF No. 321-6 ¶
21.
At the conclusion of the interview, the panel members
provide each other with feedback on the candidate. Allan Decl.,
ECF No. 321-3 ¶ 17. For some positions, interviewers use a
rating form to score the applicant’s responses. Wu Decl., ECF
16
No. 322-8 ¶ 20. If the scores of each panel member vary, a
consensus form may be used to reach a final score. Id. Unless
the applicant has a very low score in a key competency, the
applicant with the highest total score is usually recommended
for the position. Id. In other cases, panel members may simply
take notes during the interview to record their opinions about
applicants’ responses. Kerins Decl., ECF No. 328-7 ¶ 15. The
process of assessing candidates is “not a cut-and-dried type
process,” but rather involves a “discussion . . . among the
panel members about the strengths and weaknesses of a
candidate.” Dep. of Sheila Davidson, ECF No. 306-2 at 16.
Candidates are evaluated based on their experience, interview
performance, and professionalism. Kerins Decl., ECF No. 328-7 ¶
15.
While each member of the panel shares his or her thoughts
about the qualifications of the candidates, the ultimate
decision of which candidate to recommend for the vacancy lies
with the hiring manager. Kerins Decl., ECF No. 328-7 ¶ 16. The
hiring manager’s selection may be reviewed by his or her
supervisor, and the decision is ultimately approved by the
human-resources department at Amtrak’s corporate headquarters.
Id. ¶ 18; Walker Dep., ECF No. 309-4 at 11-12.
Dr. Bradley and Dr. Fox, plaintiffs’ statistical experts
who analyzed Amtrak’s hiring and promotion data, found that
17
African-American individuals were hired and promoted for vacant
positions at rates lower than their non-African-American
counterparts. Bradley/Fox Rep., ECF No. 304-1 at 4.
Specifically, Dr. Bradley and Dr. Fox concluded that 3,053 fewer
African-American individuals were hired or promoted than would
be expected from the pool of applicants, after removing those
candidates in the pool who were not minimally-qualified for the
position. Id. at 15-16. Dr. Bradley and Dr. Fox did not,
however, consider other criteria — such as seniority, work
experience, education, or whether the applicant had previously
worked at Amtrak — that may have affected hiring or promotion
decisions. Dep. of Edwin Bradley (“Bradley Dep.”), ECF No. 331-3
at 23-24, 28, 56-57.
C. Discipline
The collective-bargaining agreements usually contain rules
governing the discipline process. Decl. of Charles E. Woodcock,
III (“Woodcock Decl.”), ECF No. 322-7 ¶ 23. The discipline
process at Amtrak generally progresses as follows: (1) verbal
warning; (2) written warning; (3) disciplinary hearing if a
formal charge is filed; (4) a second disciplinary hearing if a
formal charge is filed; and (5) a third disciplinary hearing if
a formal charge is filed, which may in turn lead to termination.
Id. ¶ 20. Discipline decisions are generally made by and subject
to the discretion of a local manager. Id. ¶ 22. The final
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decision to terminate an individual currently rests with the
vice-president of human resources. Walker Dep., ECF No. 309-4 at
4-5.
This basic disciplinary process is similar for employees
across all labor unions, though there are some limited
differences. See Dep. of LaVerne Miller, ECF No. 308-6 at 34-35
(Amtrak corporate designee testifying that the claims and
grievance procedures across craft groups are “equal across the
board”); Woodcock Decl., ECF No. 322-7 ¶ 23; Roth Rep., ECF No.
304-2 ¶ 31. For example, each collective-bargaining agreement
has “just cause” type provisions that afford employees the right
to file an appeal of any disciplinary charges. Woodcock Decl.,
ECF No. 322-7 ¶ 23; see also Roth Rep., ECF No. 304-2 ¶ 32
(explaining that the language of the grievance procedures vary
between collective-bargaining agreements but that they all
“embody the principles of just cause, fair and impartial
investigation, timeliness and [] other due process elements”).
Despite these broad similarities, rules governing employee
conduct may vary by position. Woodcock Decl., ECF No. 322-7 ¶
21. For example, passenger engineers are subject to certain
federal regulations and operating rules that other employees are
not. Id. ¶ 21. Likewise, there may be different expectations for
ticket clerks, who deal with customers on a daily basis, than
19
for other employees whose jobs do not require interaction with
the public. Id. ¶ 21.
Dr. Bradley and Dr. Fox compared the rates of disciplinary
charges between African-American and non-African-American
unionized employees at Amtrak. Bradley/Fox Rep., ECF No. 304-1
at 16. They found that, of the 24,136 disciplinary charges
issued to Amtrak employees during the analysis time period,
10,651 charges were brought against African-American employees,
even though one would have expected only 8,924 charges to be
brought against African-American employees during that same
period. Id. Notably, Dr. Bradley and Dr. Fox did not make these
comparisons among employees that were similarly situated — for
example, Dr. Bradley explained that his analysis did not
consider the specific position or union to which the employee
belonged, an employee’s previous disciplinary history, the
severity of the offense and discipline issued, or the employee’s
tenure at Amtrak. See Bradley Dep., ECF No. 331-3 at 65-67.
D. Work Environment
Amtrak, like many employers of its size, has corporate
policies prohibiting discrimination, harassment, and
retaliation. See Def.’s Opp. to Mot. to Certify Class, ECF No.
320 at 16-19; Dep. of Karen Broadwater Ex. 1, ECF No. 322-10 at
14-17 (Sept. 20, 2011 EEO and Affirmative Action Policy); id.
Ex. 2, ECF No. 322-10 at 18-22 (Anti-Discrimination and Anti-
20
Harassment Policy). In addition, as a result of the settlements
entered in McLaurin v. Amtrak and Thornton v. Amtrak, Amtrak
established a Dispute Resolution Office (“DRO”) in 1999, which
was located within the Business Diversity Department. Decl. of
Dawn Marcelle (“Marcelle Decl.”), ECF No. 322-2 ¶¶ 2, 9. The
function of the DRO was to investigate internal complaints of
harassment or discrimination raised by agreement-covered
employees. Id. ¶ 10. Employees could initiate complaints
internally in a variety of ways: they could raise complaints
with supervisors, report complaints directly to their local DRO
office, or call the DRO hotline. Id. ¶ 14.
Wanda Hightower, the Vice President of the Business
Diversity Department between April 1999 and February 2001,
testified that she and her staff attempted to aggressively
investigate race discrimination complaints during her tenure at
Amtrak. See Dep. of Wanda Hightower (“Hightower Dep.”), ECF No.
309-9 at 7-8. Ms. Hightower testified that these efforts were
met with resistance by both lower-level employees and upper
management at Amtrak. See id. at 14-18, 22-23, 29. She also
stated that racial discrimination “was bad across the system” at
Amtrak, particularly among the “rank and file.” Id. at 30. This
testimony is supported by the declarations of named plaintiffs
and putative class members, some of whom point to individual
instances of racism and others of whom point to a more pervasive
21
culture of racism during their tenure at Amtrak. See Pls.’ Mot.
for Class Cert. Ex. 8, ECF No. 304-8. These declarations detail
instances of overt and obvious racism (e.g., use of racial
epithets, hanging black dolls or monkeys from nooses in employee
common areas, racially-charged physical threats), in addition to
allegations of more subtle racism (e.g., assigning African-
American employees more menial job assignments). See id.
In June 2007, Amtrak dissolved the Business Diversity
Department, and the DRO was merged into the Human Resources
Department. Marcelle Decl., ECF No. 322-2 ¶ 24. After the DRO
moved to the Human Resources Department, it continued to receive
and investigate internal complaints through May 2011, at which
time the DRO was dissolved. Id. ¶ 25. All complaints related to
discrimination are now addressed by the EEO Compliance Unit,
which is part of Amtrak’s Legal Department. 2
III. EXCLUSION OF EXPERT TESTIMONY
Amtrak moves to exclude the testimony and reports of
various experts proffered by plaintiffs in support of their
motion for class certification. See Def.’s Mot. to Exclude
Finkelman, ECF No. 319; Def.’s Mot. to Exclude Roth, ECF No.
2 Prior to the dissolution of the DRO, Amtrak’s EEO
Compliance Unit only handled complaints by employees that were
filed with a federal, state, or local agency, along with any
internal complaints in which an employee was represented by
counsel. Marcelle Decl., ECF No. 322-2 ¶ 10.
22
329; Def.’s Mot. to Exclude Bradley and Fox, ECF No. 331. Amtrak
contends that these experts must be excluded under Federal Rule
of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993). Plaintiffs argue that Daubert’s
admissibility considerations are not relevant at the class-
certification stage and, in any event, that their evidence is
admissible.
A. The Court Must Conduct A Full Daubert Inquiry Before
Relying On Expert Testimony At The Class-Certification
Stage
The issue of how to evaluate expert testimony at the class-
certification stage “ha[s] beguiled the federal courts.” Newberg
on Class Actions § 7:24 (5th ed. 2014). The Supreme Court has
strongly hinted that district courts should apply the same
standard at the class-certification stage that they would apply
to expert testimony offered at a later stage of proceedings. See
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 354 (2011)
(casting “doubt” on the conclusion “that Daubert did not apply
to expert testimony at the certification stage of class-action
proceedings”). Indeed, in 2013, the Supreme Court granted
certiorari to resolve the issue but was unable to do so because
“the question was not properly posed.” See Newberg on Class
Actions § 7:24 (citing Comcast Corp. v. Behrend, 569 U.S. 27
(2013)). The question is difficult “for the simple reason that
certification is generally not the time to decide the merits of
23
the case, yet expert witness testimony relevant to the merits
often is proffered as also relevant to a prong of the
certification inquiry.” Newberg on Class Actions § 7:24.
The Court of Appeals for the District of Columbia Circuit
(“D.C. Circuit”) has not yet weighed in on whether a full
analysis under Daubert is required at the class-certification
stage. See In re Rail Freight Fuel Surcharge Antitrust Litig.,
No. 07-0489, 2016 WL 2962186, at *2 (D.D.C. May 20, 2016); Moore
v. Napolitano, 926 F. Supp. 2d 8, 16, n.2 (D.D.C. 2013);
Kottaras v. Whole Foods Mkt., Inc., 281 F.R.D. 16, 26 (D.D.C.
2012). Most circuit courts that have addressed the issue have
found that, where an expert’s testimony is critical to class
certification, “a district court must conclusively rule on any
challenge to the expert’s qualifications or submissions prior to
ruling on a class certification motion” — i.e., “the district
court must perform a full Daubert analysis before certifying the
class.” Am. Honda Motor Co. v. Allen, 600 F.3d 813, 815-16 (7th
Cir. 2010); see also, e.g., Ellis v. Costco Wholesale Corp., 657
F.3d 970, 982 (9th Cir. 2011) (district court “correctly applied
the evidentiary standard set forth in Daubert” at the class-
certification stage); Sher v. Raytheon Co., 419 F. App’x 887,
890-91 (11th Cir. 2011) (“Here the district court refused to
conduct a Daubert-like critique of the proffered experts’
qualifications. This was error.”); In re Carpenter Co., No. 14-
24
0302, 2014 U.S. App. LEXIS 24707, at *10-11 (6th Cir. Sep. 29,
2014) (district court did not abuse its discretion by analyzing
expert testimony offered in support of class certification under
Daubert); In re Blood Reagents Antitrust Litig., 783 F.3d 183,
187 (3d Cir. 2015) (“We join certain of our sister courts to
hold that a plaintiff cannot rely on challenged expert
testimony, when critical to class certification, to demonstrate
conformity with Rule 23 unless the plaintiff also demonstrates,
and the trial court finds, that the expert testimony satisfies
the standard set out in Daubert.”); but see In re Zurn Pex
Plumbing Prods. Liab. Litig., 644 F.3d 604, 611-14 (8th Cir.
2011) (approving use of a “focused Daubert analysis” instead of
a “full and conclusive Daubert inquiry”).
The courts that have required a full Daubert inquiry
generally focus on the “rigorous analysis” that a district court
must apply to a plaintiff’s request for class certification — a
standard that, after Comcast, clearly applies to expert
testimony that is proffered in support a request for
certification. See Comcast Corp. v. Behrend, 569 U.S. 27, 34-35
(2013). This means that the district court must discern whether
a plaintiff has proven compliance with Rule 23(a) “in fact” and
whether the plaintiff has “‘satisf[ied] through evidentiary
proof at least one of the provisions of Rule 23(b).’” In re
Blood Reagents Antitrust Litig., 783 F.3d at 187. Under this
25
approach, “[e]xpert testimony that is insufficiently reliable to
satisfy the Daubert standard cannot ‘prove’ that the Rule 23(a)
prerequisites have been met ‘in fact,’ nor can it establish
‘through evidentiary proof’ that Rule 23(b) is satisfied.” Id.;
see also, e.g., Messner v. Northshore Univ. HealthSystem, 669
F.3d 802, 812 (7th Cir. 2012) (“Failure to conduct [a Daubert]
analysis when necessary . . . would mean that the unreliable
testimony remains in the record, a result that could easily lead
to reversal on appeal.”).
The Eighth Circuit — the only Circuit to have reached a
contradictory decision after Dukes — sanctioned a “‘tailored’
Daubert analysis” that “examined the reliability of the expert
opinions in light of the available evidence and the purpose for
which they were offered.” In re Zurn Pex Plumbing Prods. Liab.
Litig., 644 F.3d 604, 612 (8th Cir. 2011); see also id. at 611
(declining to “adopt a new rule, requiring a district court to
determine conclusively at an early stage, not just whether or
not expert evidence is sufficient to support class certification
under Rule 23, but also whether that evidence will ultimately be
admissible for trial”). This holding emphasized the “inherently
preliminary nature of pretrial evidentiary and class
certification rulings,” and noted that the “main purpose of
Daubert” — “to protect juries from being swayed by dubious
scientific testimony” — does not arise in motions for class
26
certification “where the judge is the decision maker.” Id. at
613.
The Court is persuaded that it must conduct a full Daubert
inquiry at the class-certification stage. Concerns regarding the
tentativeness of class-certification rulings have been
undermined significantly by the 2003 amendment to Rule 23, which
removed language permitting a conditional class-certification
ruling. See In re Zurn Pex Plumbing Prods. Liab. Litig., 644
F.3d at 630 (Gruender, J., dissenting) (arguing that “the 2003
amendments to Rule 23 removed the provision that class
certification ‘may be conditional’” and that failing to conduct
a full Daubert inquiry regarding evidence crucial to a
certification decision would mean that “the case will proceed
beyond class certification on the basis of inadmissible,
unreliable expert testimony”). The fact that a class-
certification ruling may be revisited, Fed. R. Civ. P.
23(c)(1)(C), or that merits-related discovery may lead to
additional evidence that supports an expert’s conclusions, does
not warrant applying a relaxed standard to an expert’s opinions
at the certification stage. Moreover, after Dukes, “[t]he Court
must consider merits questions when those questions overlap with
Rule 23’s requirements.” Coleman through Bunn v. Dist. of
Columbia, 306 F.R.D. 68, 77 (D.D.C. 2015); cf. Amgen Inc. v.
Connecticut Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013)
27
(“Merits questions may be considered to the extent — but only to
the extent — that they are relevant to determining whether the
Rule 23 prerequisites for class certification are satisfied.”).
Accordingly, the concern that conducting a full Daubert hearing
would inappropriately prejudge a merits issue is less
persuasive; if that merits issue overlaps with Rule 23, the
Court must prejudge it to the extent necessary to assess
plaintiffs’ compliance with Rule 23.
In short, the Court agrees with the heavy weight of
authority that, when a party moves to exclude expert testimony
proffered in support of a motion for class certification, the
district court must perform a full Daubert analysis before
certifying a class. See In re Rail Freight Fuel Surcharge
Antitrust Litig., No. 07-0489, , at *2 (D.D.C. May 20, 2016)
(addressing the “reliability of the experts’ methodology under
Daubert and Rule 702” at the class-certification stage);
Kottaras v. Whole Foods Mkt., Inc., 281 F.R.D. 16, 26 (D.D.C.
2012) (“the Court agrees with other courts that the Rule calls
for careful and searching analysis of all evidence with respect
to whether Rule 23’s certification requirements have been met,
including expert opinions”).
B. Legal Standard For Admissibility Of Expert Testimony
A district court has “‘broad discretion in determining
whether to admit or exclude expert testimony.’” United States ex
28
rel. Miller v. Bill Harbert Int’l Constr., Inc., 608 F.3d 871,
895 (D.C. Cir. 2010) (citation omitted). The exercise of that
discretion is governed by Federal Rule of Evidence 702, which
provides that:
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.
Rule 702 requires the district court to act as a
“gatekeeper” for expert testimony by ensuring that “any and all
scientific testimony or evidence admitted is not only relevant,
but reliable.” Daubert, 509 U.S. at 589; see also Ambrosini v.
Labarraque, 101 F.3d 129, 133 (D.C. Cir. 1996) (“[t]he Daubert
standard involves a two-prong analysis that centers on
evidentiary reliability and relevancy”). In Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 141 (1999), the Supreme Court made
clear that this gatekeeping obligation applies to all expert
testimony, not just scientifically-based testimony.
29
Under Rule 702, expert testimony is reliable if (1) it is
based on sufficient facts or data; (2) it is the product of
reliable principles and methods; and (3) the expert has applied
the principles and methods reliably to the facts of the case.
See, e.g., Heller v. District of Columbia, 801 F.3d 264, 271
(D.C. Cir. 2015) (“[C]ourts are obligated to ‘determine whether
[expert] testimony has a reliable basis in the knowledge and
experience of [the relevant] discipline.’”) (quoting Kumho Tire,
526 U.S. at 149); Robinson v. Dist. of Columbia, 75 F. Supp. 3d
190, 199 (D.D.C. 2014) (“‘[t]he trial judge ... must find that
[the proffered testimony] is properly grounded, well-reasoned
and not speculative before it can be admitted’”) (quoting Fed.
R. Evid. 702 advisory committee notes). In determining
reliability, the district court must “focus solely on principles
and methodology, not on the conclusions that they generate.”
Ambrosini, 101 F.3d at 133. The trial judge has “considerable
leeway in deciding in a particular case how to go about
determining whether particular expert testimony is reliable.”
Kumho Tire, 526 U.S. at 152; see also Estate of Gaither ex rel.
Gaither v. Dist. of Columbia, 831 F. Supp. 2d 56, 62 (D.D.C.
2011) (“‘Exactly how reliability is evaluated may vary from case
to case, but what remains constant is the requirement that the
trial judge evaluate the reliability of the testimony before
allowing its admission at trial.’”) (citation omitted).
30
“The second Daubert prong relates to relevance and is
fairly straightforward.” Rothe Dev., Inc. v. Dept. of Defense,
107 F. Supp. 3d 183, 197 (D.D.C. 2015). The district court “must
determine whether the proffered testimony is sufficiently tied
to the facts of the case and whether it will aid the factfinder
in resolving a factual dispute. Fed. Trade Comm’n v. Whole Foods
Market, Inc., No. 07-1021, 2007 WL 7632283, at *1 (D.D.C. July
17, 2007). “The Daubert Court described this consideration as
one of ‘fit.’” Ambrosini, 101 F. 3d at 134. Although the
district court assumes only a “limited” gate-keeping role under
these standards, and “‘[r]ejection of an expert’s testimony is
the exception rather than the rule,’” see Paige Int’l, Inc. v.
XL Specialty Ins. Co., No. 14-1244, 2016 WL 3024008, at *3
(D.D.C. May 25, 2016) (citation omitted), the “decision to
receive expert testimony” cannot be “‘simply tossed off to the
jury under a ‘let it all in’ philosophy,’” see Joy v. Bell
Helicopter Textron, Inc., 999 F.2d 549, 569 (D.C. Cir. 1993)
(citation omitted). As such, “[t]he issue for the Court to
determine is whether . . . [the expert’s] assumptions amount to
‘rampant speculation’ and should be excluded, or whether [the]
assumptions merely represent a weak factual basis for [the
expert’s] testimony that is appropriately challenged on cross
examination.” Boyar v. Korean Air Lines Co., 954 F. Supp. 4, 7
(D.D.C. 1996).
31
C. Amtrak’s Motion To Exclude Dr. Finkelman’s Testimony
And Report Is Granted
1. Dr. Finkelman’s Qualifications And Opinions
Dr. Jay Finkelman is an industrial-organizational
psychologist and the Vice-President of Academic Affairs and
Chief Academic Officer of the Chicago School of Professional
Psychology. Expert Rebuttal Report of Jay Finkelman, PhD, ABPP,
CPE (“Finkelman Rebuttal Rep.”), ECF No. 344-2 at 2. He holds a
Ph.D. in Industrial-Organizational Psychology from New York
University and an M.B.A. in Industrial Psychology from the
Bernard M. Baruch School of Business. Expert Rep. of Jay
Finkelman, PhD, ABPP, CPE (“Finkelman Rep.”), ECF No. 304-3 at
3. Dr. Finkelman “specializes” in a variety of topics, including
human resources, staffing industry management practices,
employment discrimination, adverse impact, performance
appraisal, and psychometrics. Id. at 5. He has “had hundreds of
retentions and depositions” and has “testified at trial over 46
times.” Id. at 3.
Dr. Finkelman was retained by plaintiffs to “review the
hiring, promotional, and discipline policies of Amtrak” and
“determine whether or not they were consistent with generally
accepted Human Resource Management practices and the principles
of Industrial-Organizational Psychology.” Finkelman Rep., ECF
No. 304-3 at 17-18. In preparing his report, Dr. Finkelman
32
relied on plaintiffs’ third amended complaint, Amtrak’s answer
to that complaint, the depositions and related exhibits of three
of Amtrak’s corporate representatives, the deposition and
related exhibits of one fact witness, the expert report of Dr.
Bradley and Dr. Fox, a document titled “Selection Roulette,” and
the declarations of class members. See Finkelman Report at 26;
Dep. of Jay M. Finkelman (“Finkelman Dep.”), ECF No. 319-3 at 5.
Based on his review of these selected materials, Dr.
Finkelman provided an expert report, the substance of which
spans approximately eight pages. In his report, in a section
titled “Opinions,” Dr. Finkelman first sets forth background
principles undergirding “good” human-resource management
policies and practices and states that Amtrak “did not appear to
have adequate mechanisms in place” to accomplish certain
objectives of human-resource management. Finkelman Rep., ECF No.
304-3 at 19-20. Notably, he does not cite any studies, data,
articles, or other academic sources supporting any of his
observations.
Dr. Finkelman next makes “[a] few specific observations”
with respect to this case. Id. at 18-19. Those observations
consist of twenty bullet points that point out various
problematic human-resources practices purportedly found at
Amtrak. Id. at 19-24. Nine of those bullets are summaries of
testimony of Amtrak managers provided to Dr. Finkelman by
33
plaintiffs’ counsel in a document titled “Selection Roulette,”
coupled with Dr. Finkelman’s observations about the hiring
practices described in those summaries. Compare id. at 20-23,
with Finkelman Dep. Ex. 7, ECF No. 319-3 at 130-136. Based on
his review of the summaries, Dr. Finkelman concludes that
Amtrak’s employment policies and practices failed to accomplish
the “dual” goals of human-resource management: to protect
employees from discrimination, harassment, and retaliation while
“also protecting the organization[] from liability associated
with improper policies and practices.” Finkelman Rep., ECF No.
304-3 at 18. According to Dr. Finkelman, this failure is
attributable to the fact (1) that Amtrak has “few if any
controls against intentional or inadvertent bias” and (2) that
Amtrak’s hiring, promotional, and discipline policies are “not
consistent with generally accepted Human Resource Management
practices nor with the professional requirements of Industrial-
Organizational Psychology.” Id. at 24; see also Finkelman Dep.,
ECF No. 319-3 at 4-5 (opining that, although Amtrak had
overarching policies in place governing hiring, promotion, and
employee discipline, individual managers departed from those
policies in a manner that “allowed for subjectivity and the
potential for bias or discrimination”).
34
2. Dr. Finkelman’s Opinions Are Unreliable
Amtrak argues that Dr. Finkelman’s report fails Daubert’s
reliability prong because, among other reasons, Dr. Finkelman
did not consider sufficient facts in forming his opinion. See
Def.’s Mem. in Supp. Mot. to Exclude Finkelman, ECF No. 319-1 at
19-25. Amtrak asserts that Dr. Finkelman’s opinions are
supported only by “cherry-picked” documents selected by
plaintiffs’ counsel, and that Dr. Finkelman failed to request,
much less review, a host of other evidence “pertinent to the
question he purportedly sought to answer — whether Amtrak’s
policies, practices, and procedures are consistent with
generally accepted human-resources practices and the general
principles of industrial organizational psychology.” Id.
Federal Rule of Evidence 702 requires expert testimony to
be “based on sufficient facts or data” to be reliable. United
States ex rel. Miller v. Bill Harbert Int’l Const., Inc., 608
F.3d 871, 894 (D.C. Cir. 2010) (quoting Fed. R. Evid. 702).
Although an expert “need not consider every possible factor to
render a ‘reliable’ opinion, the expert still must consider
enough factors to make his or her opinion sufficiently reliable
in the eyes of the court.” MicroStrategy Inc. v. Bus. Objects,
S.A., 429 F.3d 1344, 1355 (Fed. Cir. 2005); Estate of Gaither ex
rel. Gaither v. Dist. of Columbia, 831 F. Supp. 2d 56, 66
(D.D.C. 2011) (expert must provide “meaningful measure of
35
detail” as to the expert’s “experience with and knowledge of”
the facts underlying his opinions).
After reviewing Dr. Finkelman’s report and deposition
testimony, the Court finds that Dr. Finkelman’s expert opinion
relies on insufficient facts and data and therefore lacks the
reliability required under Rule 702. For example, although Dr.
Finkelman purports to opine about the human-resource management
practices at Amtrak, he testified that he did not review
information critical to those opinions, including the
depositions of any human-resource managers, see Finkelman Dep.,
ECF No. 319-3 at 5; documents related to any job-selection
decisions by any Amtrak manager, see id. at 23; personnel files
or documents related to any discipline decision made by Amtrak,
see id.; or Amtrak’s discrimination complaint procedures or
anti-discrimination training, see id. at 45.
Likewise, although he agreed that the collective-bargaining
agreements applicable to plaintiffs “would have [an] impact” on
Amtrak’s hiring, promotion, and disciplinary policies, see
Finkelman Dep., ECF No. 319-3 at 25, he did not review those
agreements prior to forming his opinions, see id. at 22-23. Dr.
Finkelman also testified that, although he “assume[s]” that the
consent decrees imposed in previous employment-discrimination
litigation involving Amtrak had an impact “on the hiring,
promotional, or discipline policies at Amtrak,” he “didn’t read
36
the consent decrees” and therefore did not “know the exact
changes that may have been made” by Amtrak in response to the
decrees. Id. at 25. Rather, Dr. Finkelman testified that he only
considered limited “facts” in forming his opinion that Amtrak’s
practices and policies were inconsistent with the goals of good
human-resource management practices:
Q. You say “Amtrak has not accomplished either
objective, in my opinion.” What’s the basis
for that statement?
A. Well, the basis is the allegations that
have been leveled by both the plaintiffs and
perhaps other class members. In this matter,
my review of the statements by supervisors as
to how it is that they engage in selection or
promotion. And I suppose also by the $16
million that Amtrak had to pay in one of the
earlier phases of litigation, which seemed to
suggest that there is a problem and some
wrongdoing.
Finkelman Dep., ECF No. 319-3 at 26.
Even in his consideration of these limited “facts,” Dr.
Finkelman did little to confirm their accuracy. For example,
although he offers opinions on the selection process used by
supervisors in hiring and promoting employees, Dr. Finkelman did
not read the deposition testimony of any supervisors. See
Finkelman Dep., ECF No. 319-2 at 31. Instead, Dr. Finkelman
relied on a document titled “Selection Roulette” in which
plaintiffs’ counsel “summed up” the testimony of select
supervisors. Id. at 5 (“The information from managers came from
37
the depositions that had taken place by managers. And I got that
information through, I think, a document that’s referred to as a
“selection roulette” or something like that.”); id. at 28
(affirming that he relied on the document titled “selection
roulette” for management testimony). Dr. Finkelman conceded that
he took no steps to verify the accuracy or the
representativeness of the information in the “Selection
Roulette” document. Id. at 28-29. Indeed, Dr. Finkelman
acknowledged that, “to figure out what really took place” at
Amtrak, he would likely need to “get into more detail.” Id. at
29. For purposes of the report, Dr. Finkelman explained
From the descriptions that were given [in the
“Selection Roulette” document], assuming that
they are reasonably accurate, they are so far
off in acceptable norm that I didn’t need any
more at this point. I will look more
carefully, and if — if the roulette has
misrepresented any of those issues or
approaches, and if it didn’t accurately
characterize what managers said, you know,
that would be a different story. But there are
specific citations that are included, and yes,
I will be looking at those.
Id. (emphasis added).
Dr. Finkelman simply “assum[ed]” that plaintiffs’ counsel
“accurately characterize[d]” the testimony of Amtrak managers
regarding their hiring practices instead of independently
reviewing that testimony himself — and, critically, proceeded to
formulate the opinions set forth in his expert report based, in
38
part, on that unverified testimony. Such blind reliance on
“facts” provided by plaintiffs’ counsel — combined with his
failure to review other sources of information that he conceded
could have affected Amtrak’s hiring, promotion, and disciplinary
practices — renders his expert report unreliable. See, e.g.,
Parsi v. Daioleslam, 852 F. Supp. 2d 82, 89 (D.D.C. 2012) (facts
and data relied upon by expert were “patently insufficient”
where expert “read only an apparently haphazard selection of
defendant’s sources”); Sommerfield v. City of Chicago, 254
F.R.D. 317, 321 (N.D. Ill. 2008) (“Acceptance of the notion that
an expert can reasonably base his opinion on summaries of
deposition testimony prepared by a party’s lawyer would
effectively eliminate Daubert’s insistence that an expert’s
opinion be grounded on reliable information.”); Equal Emp’t
Opportunity Comm’n v. Rockwell Int’l Corp., 60 F. Supp. 2d 791,
795 (N.D. Ill. 1999) (expert report unreliable where expert’s
“sole source of information . . . c[ame] from summaries prepared
by one of the litigants” and expert failed to “review the entire
depositions”); Equal Emp’t Opportunity Comm’n v. Bloomberg L.P.,
No. 07-8383, 2010 U.S. Dist. LEXIS 92511, at *46 (S.D.N.Y. Aug.
31, 2010) (expert’s reliance “solely on the information fed to
him by [plaintiff] without independently verifying whether the
information [wa]s representative undermine[d] the reliability of
his analysis”); Makor Issues & Rights, Ltd. v. Tellabs, Inc.,
39
No. 02-4356, 2010 U.S. Dist. LEXIS 62114, at *14-15 (N.D. Ill.
June 23, 2010) (excluding expert report related to defendant’s
financial forecasts in part because expert “did not read any
testimony about how [defendant] prepared its forecast” and “did
not even read the deposition transcript” of the head of
defendant’s forecasting division).
There are other problems with the reliability of Dr.
Finkelman’s proposed expert testimony as well. For example, Dr.
Finkelman has not identified any particular principles or
methodology he used in forming his opinions. Dr. Finkelman does
not cite a single study, report, or other source for his
opinions related to appropriate human-resources policies and
practices. And, although he opines that Amtrak permitted an
inappropriate degree of subjectivity in its hiring and promotion
practices, Dr. Finkelman did not attempt to measure the degree
of subjectivity at Amtrak. Finkelman Dep., ECF No. 319-3 at 27.
Indeed, Dr. Dr. Finkelman did not conduct any independent
research as part of his assessment of Amtrak’s policies. Id. at
22. Rather, when asked how he prepared his report, Dr. Finkelman
testified:
The process I use, which is the way I normally
do it is, I go through all the documents
initially to get a sense of it, and I tend to
do that rapidly. And then I go back and start
making determinations as to what fits into a
report. And that’s exactly the process I used.
So I start by reading the complaint and the
40
answer to the complaint, and then the
depositions. And I start finding spots in the
deposition or the declarations that seemed to
be relevant to what I was asked to do, and
then I just put that together as a report.
Finkelman Dep., ECF No. 319-3 at 24; see also id. at 27
(testifying that his report was “predominantly” based on his
“review of the deposition testimony of managers as to how it is
that they make decisions pertaining to hiring and promotion and
to a lesser degree discipline”); id. at 28 (confirming that he
did not read the deposition testimony of managers but instead
relied on the “selection roulette” document provided by
plaintiffs’ counsel that summarized the testimony of selected
managers).
In short, Dr. Finkelman appears to have uncritically relied
on documents supplied to him by plaintiffs’ counsel, cited to
those pieces of evidence that supported his theories, and
concluded that this selective evidence demonstrates that
Amtrak’s practices were inconsistent with generally-accepted
human resource management practices. Finkelman Rep., ECF No.
304-3 at 25. To the extent that this may be considered a
methodology at all, it does not meet the standards of
reliability demanded by Rule 702 or Daubert. See, e.g.,
Chesapeake Climate Action Network v. Exp.-Imp. Bank of the
United States, 78 F. Supp. 3d 208, 219 (D.D.C. 2015) (expert
testimony inadmissible where expert failed to identify any
41
“principles or methodology” used to arrive at his opinions, but
rather “note[d] only that he reviewed certain documents and
reached a series of conclusions”); Obrycka v. City of Chicago,
792 F. Supp. 2d 1013, 1025 (N.D. Ill. 2011) (excluding expert
witness who “did not conduct any independent research” to
prepare his report and who failed to “investigate[] the veracity
of the materials Plaintiff’s counsel provided to him, or
request[] additional materials from Plaintiff’s counsel to
further inform his opinion”).
3. Dr. Finkelman’s Opinions Do Not Constitute
“Generalized Expert Testimony”
In response to these deficiencies, plaintiffs assert that
“some of the content” of Dr. Finkelman’s report and testimony
consists of “explication of the principles” of social science
that may be admitted as “generalized testimony.” See Pls.’ Opp.
to Mot. to Exclude Roth and Finkelman (“Pls.’ Roth/Finkelman
Opp.”), ECF No. 345 at 10-12. Plaintiffs contend that such
testimony is appropriate because
it might also be important in some cases for
an expert to educate the factfinder about
general principles, without ever attempting to
apply these principles to the specific facts
of the case. . . . For this kind of generalized
testimony, Rule 702 simply requires that: (1)
the expert be qualified; (2) the testimony
address a subject matter on which the
factfinder can be assisted by an expert; (3)
the testimony be reliable; and (4) the
testimony ‘fit’ the facts of the case.
42
Id. at 11 (quoting Fed. R. Evid. 702 advisory committee notes).
Plaintiffs do not specify which portions of Dr. Finkelman’s
report or testimony they seek to admit under this provision. See
generally Pls.’ Roth/Finkelman Opp., ECF No. 345. Nor do
plaintiffs address how, precisely, they believe such testimony
about industrial-organizational psychology, without any
application to the facts of this case, will assist the Court’s
class-certification inquiry. Id. Despite plaintiffs’ argument to
the contrary, Dr. Finkelman’s report says little about the “role
of unbridled subjectivity in employment selections,” see Pls.’
Roth/Finkelman Opp., ECF 345 at 12, that is “generalized” and
does not “attempt[] to apply the[] principles to the specific
facts of the case,” Fed. R. 702 advisory committee notes. See
Finkelman Rep., ECF No. 304-3 at 19-25; see also Fox v.
Pittsburgh State Univ., No. 14-2606, 2016 WL 4919463, at *3 (D.
Kan. Sept. 15, 2016) (rejecting defendant’s argument that expert
was merely offering “generalized testimony” where defendant’s
aim was to “implicitly apply the[] principles [offered by the
expert] to the specifics of the case”).
Moreover, even if the Court were persuaded that Dr.
Finkelman offers generalized testimony that could be helpful to
the issue of class certification, plaintiffs have failed to show
that Dr. Finkelman’s testimony is, at bottom, reliable. As
explained above, Dr. Finkelman does not cite any studies or
43
other data supporting his opinions, and he did not attempt to
measure the degree of subjectivity in Amtrak’s hiring,
promotion, or disciplinary decisions. Finkelman Dep., ECF No.
319-3 at 27. Moreover, Dr. Finkelman does not account for a host
of information, some of which he admits is relevant to the very
question he aims to answer. Id. at 22-23, 25, 45. Plaintiffs
argument that the Court should accept Dr. Finkelman’s testimony
simply because he is “a very knowledge psychologist” and “gets
it,” Pls.’ Roth/Finkelman Opp., ECF No. 345 at 27, is not only
conclusory, but also inadmissible ipse dixit in its most classic
form. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997);
Obrycka v. City of Chicago, 792 F. Supp. 2d 1013, 1025 (N.D.
Ill. 2011).
4. Dr. Finkelman’s Rebuttal Report Does Not Render
His Analysis Reliable
Perhaps recognizing the deficiencies in Dr. Finkelman’s
report, plaintiffs finally contend that, “to the extent there
were shortcomings in Dr. Finkelman’s initial Expert Report, they
are removed by his Expert Rebuttal Report” which “specifically
cit[es] the Industrial-Organizational Psychology studies and
publications that support his opinions in this case.” Pls.’
Roth/Finkelman Opp., ECF No. 345 at 28. Although Dr. Finkelman’s
rebuttal expert report does cite academic literature purportedly
supporting his opinions, the rebuttal report fails to address
44
the fundamental problem with his initial expert report: Dr.
Finkelman did not review sufficient facts to develop his Amtrak-
specific expert opinions. Although Dr. Finkelman need not
“examine every document that was filed in this matter” to opine
on the adequacy of Amtrak’s human-resource management practices,
see Finkelman Rebuttal Rep., ECF No. 344-2 at 16, he cannot
simply rely on cherry-picked facts selected by plaintiffs’
counsel in forming his opinions. See, e.g., Shawler v. Ergon
Asphalt & Emulsions, Inc., No. 15-2599, 2016 WL 1019121, at *11
(E.D. La. Mar. 15, 2016) (excluding report as unreliable where
expert simply “cherry-pick[ed] evidence favorable to [plaintiff]
and dictate[d] what inferences and legal conclusions the Court
should draw from that evidence”).
D. Amtrak’s Motion To Exclude Mr. Roth’s Report and
Testimony Is Denied
1. Mr. Roth’s Qualifications And Opinions
Thomas R. Roth is a financial and economic advisor to labor
organizations. See Roth Rep., ECF No. 304-2 ¶ 1. He holds a
bachelor of science in economics and industrial relations and a
master of science in labor and industrial relations. Roth Rep.
Ex. A, ECF No. 304-2 at 15. Mr. Roth has worked with labor
organizations in a variety of sectors, including — and perhaps
especially in — the railroad industry. Id. Specifically, he has
represented all fourteen standard railroad unions before the
45
Presidential Emergency Board and in arbitration proceedings. Id.
Indeed, Mr. Roth affirms that he has “been directly and
intimately involved in every round of collective bargaining at
Amtrak since 1978.” Decl. & Expert Rebuttal Rep. of Thomas R.
Roth (“Roth Rebuttal Rep.”), ECF No. 344-1 ¶ 2. Currently, he is
President of Labor Bureau Inc., a private-consulting firm that
provides professional services in labor-relations matters. Roth
Rep. Ex. A, ECF No. 304-2 at 15.
In his expert report, Mr. Roth classifies the seventeen
different collective-bargaining units at Amtrak into five
“functional categories” or “craft groups” that he contends
“mirror Amtrak’s management structure.” Roth Rep., ECF No. 304-2
¶¶ 8-15. He explains that these five functional groups share
common work sites and supervision, along with certain terms in
their collective-bargaining agreements. Id. ¶¶ 21-36. Based on
these observations, Mr. Roth opines that “it makes sense” to
analyze Amtrak’s process for hiring, promoting, and disciplining
its employees by these functional groups. Dep. of Thomas R. Roth
(“Roth Dep.”), ECF No. 329-3 at 52, 53-54. Mr. Roth’s opinions
are based on his personal experience with Amtrak and the labor
organizations representing its workforce, his general knowledge
of Amtrak’s operation and the railroad industry, a review of
certain Amtrak collective bargaining agreements, and “other
pertinent statistical information” maintained by Mr. Roth or his
46
staff. Roth Rep. ECF No. 304-2 ¶ 2; Roth Dep., ECF No. 329-3 at
5.
2. Mr. Roth’s Opinions Are Reliable
Amtrak argues that Mr. Roth’s report and testimony should
be excluded because they are unreliable. See Def.’s Mem. in
Supp. of Mot. to Exclude Roth (“Def.’s Roth Mem.”), ECF No. 329-
1 at 12-18. First, Amtrak complains that Mr. Roth did not review
any pleadings, 30(b)(6) testimony, other expert reports, Amtrak
organizational charts, descriptions of the reporting structure
at Amtrak, or a host of documents related to specific employment
decisions made at Amtrak with respect to plaintiffs. Id. at 14-
15. For example, Amtrak points out that Mr. Roth failed to
review all the collective-bargaining agreements, instead just
reviewing “one [collective-bargaining agreement] per union” even
though some unions “have multiple agreements based on
geographical location . . . and . . . have had several
applicable agreements during the alleged class period.” Id. at
13. Second, Amtrak argues that Mr. Roth’s classifications are
not reliable because Mr. Roth acknowledged during his deposition
that the functional categories may not “neatly” describe the
range of employees in each group. Id. at 16-17. And third,
Amtrak contends that Mr. Roth ignored contradictory information
and focused only on purported commonalities in examining the
collective-bargaining agreements. Id. at 17-18.
47
Plaintiffs respond that Mr. Roth appropriately relied on
his “deep, thorough, and encyclopedic” knowledge of the railroad
industry, Amtrak’s unions, and collective-bargaining agreements
in forming his opinions with respect to the functional
categories. Pls.’ Roth/Finkelman Opp., ECF No. 345 at 12-13. To
this end, plaintiffs point out that Amtrak’s criticism that Mr.
Roth should have “reviewed each and every collective bargaining
agreement” rings hollow given that Mr. Roth “was an active
participant in negotiating those same collective bargaining
agreements.” Id. at 13. In addition, plaintiffs argue that,
notwithstanding Amtrak’s arguments to the contrary, Mr. Roth
does not purport to opine in his initial expert report that the
five functional groups should be used to analyze “every
selection decision, discipline decision, and hostile work
environment claim for virtually every unionized employee” at
Amtrak over the class period. Id. at 17. Rather, plaintiffs
claim that Mr. Roth’s report does nothing more than “set[] forth
the existence, nature, and significance of the Craft Groups at
Amtrak.” Id. Finally, plaintiffs contend that Amtrak’s
complaints about Mr. Roth’s treatment of variations between
craft groups do nothing to undermine Mr. Roth’s opinion
regarding the similarities between the craft groups. Id. at 18.
The Court finds that Amtrak’s objections go to the weight
to be given to Mr. Roth’s testimony and not its reliability.
48
Amtrak does not attack Mr. Roth’s qualifications, and the Court
finds that Mr. Roth is certainly qualified “by knowledge, skill,
experience, training, or education.” Fed. R. Evid. 702. Indeed,
as Mr. Roth’s rebuttal report makes clear, he has “direct and
thorough” knowledge of collective bargaining in the railroad
industry and is “specifically” knowledgeable about the craft
structure that he discusses in his report. Roth Rebuttal Rep.,
ECF No. 344-1 at 2.
Moreover, Amtrak has not demonstrated that Mr. Roth’s
failure to review certain materials — namely, pleadings,
depositions, other expert reports, personnel files, job
descriptions, or the entire universe of collective-bargaining
agreements pertaining to Amtrak unions — has rendered his
opinions regarding the structure of craft groups at Amtrak so
unreliable as to be excluded. See Joy v. Bell Helicopter
Textron, Inc., 999 F.2d 549, 567 (D.C. Cir. 1993) (admission of
expert testimony “does not constitute an abuse of discretion
merely because the factual bases for an expert’s opinion are
weak”); Stryker Spine v. Biedermann Motech GmbH, 684 F. Supp. 2d
68, 101 (D.D.C. 2010) (expert’s failure to review certain
records did not render his opinion unreliable where his opinions
were based “on his expertise in the relevant field”).
Mr. Roth’s opinions stand in contrast to those offered by
Dr. Finkelman. Whereas Dr. Finkelman’s reliance on unverified
49
summaries of cherry-picked deposition testimony provided to him
by plaintiffs’ counsel rendered the foundation of his testimony
unreliable, Mr. Roth merely relied on fewer “facts” than Amtrak
prefers. Amtrak is free to challenge the factual bases of Mr.
Roth’s opinions through “[v]igorous cross-examination” and
“presentation of contrary evidence,” which are “the traditional
and appropriate means of attacking shaky but admissible
evidence.” Daubert, 509 U.S. at 596. Moreover, the Court can
determine what weight to afford Mr. Roth’s opinions as part of
its class-certification analysis. See In re Rail Freight Fuel
Surcharge Antitrust Litig., No. 07-0489, 2017 WL 5311533, at *27
(D.D.C. Nov. 13, 2017) (“The Court may admit expert opinion even
where — as here — the factual bases for the opinion are weak.
The Court will determine what weight to afford [the expert’s]
opinion, given its limited support, under Rule 23.”).
3. Mr. Roth’s Opinions May Be Relevant
Amtrak also argues that, even if Mr. Roth’s testimony is
reliable, it should still be excluded because “Mr. Roth has no
basis for concluding that the groupings he identifies are
relevant to the claims at issue in this case.” Def.’s Roth Mem.,
ECF No. 329-1 at 19. In particular, Amtrak argues that the
functional groups set forth in Mr. Roth’s report “are in no way
based upon the manner in which Amtrak managers make selection
and discipline decisions” but instead only relate to “collective
50
bargaining issues.” Id. at 18-19. Contrary to Amtrak’s
contentions, the Court finds that Mr. Roth’s testimony is
“sufficiently tied to the facts of this case” such that it will
aid the factfinder in resolving a factual dispute. Ambrosini v.
Labarraque, 101 F.3d 129, 134 (D.C. Cir. 1996). According to Mr.
Roth, the functional categories are, in fact, appropriate for
analyzing hiring, promotion, and discipline processes and
procedures at Amtrak. See Roth Dep., ECF No. 329-3 at 52 (hiring
procedures and promotion process); id. at 53-54 (disciplinary
procedures). The parties’ disagreements as to these conclusions
go to the weight to be given the evidence and not its
admissibility. See Ambrosini, 101 F.3d at 140 (D.C. Cir. 1996)
(“Daubert instructs that the admissibility inquiry focuses not
on conclusions, but on approaches[.]”).
In short, the Court finds that Mr. Roth’s opinions are
reliable and relevant to plaintiffs’ class-certification motion
and should not be excluded.
E. Amtrak’s Motion To Exclude Dr. Bradley And Dr. Fox’s
Report and Testimony Is Denied
1. Dr. Bradley And Dr. Fox’s Qualifications And
Opinions
Dr. Edwin L. Bradley, Jr. and Dr. Liesel M. Fox are
statisticians at Quantitative Research Associates, a firm that
provides statistical and computing consulting services. See
Bradley/Fox Rep., ECF No. 304-1 at 2-3. Dr. Bradley and Dr. Fox
51
were asked to examine the hiring of external job applications,
selection of internal candidates for promotions and transfers,
and the disciplinary charges levied and resolved against Amtrak
employees to ascertain the differences in hiring, promotion, and
discipline rates between African-American and non-African-
American employees. Id. at 4. The purpose of this analysis was
to determine “whether the policies and practices used by Amtrak
have had adverse impact against its African-American . . .
employees” between April 4, 1996 and December 31, 2008 (the
“Analysis Period”). Id.
To conduct their analysis, Dr. Bradley and Dr. Fox relied
on certain databases that were prepared by Amtrak from
electronic data sources at Amtrak (“Joint Databases”). Id. at 5-
7. The Joint Databases provided information regarding hiring and
termination dates, rates of pay, changes in job assignment,
race, records of disciplinary violations, and applicant pools
for select vacancies. Id. Dr. Bradley and Dr. Fox assigned each
employee with a record in the Joint Database to one of four
craft groups based on the employee’s union membership. Id. at 6.
Dr. Bradley testified that he was instructed to aggregate the
data based on these craft groups by plaintiffs’ counsel. Bradley
Dep., ECF No. 331-3 at 5.
In analyzing hiring and promotion decisions, Dr. Bradley
and Dr. Fox divided their analysis into two groups: vacancies
52
for which they had “applicant flow data” — i.e., information
regarding pools of individuals who actually applied for
vacancies between July 2003 and December 2008 — and vacancies
for which no such data existed. Bradley/Fox Rep., ECF No. 304-1
at 8-16. For those vacancies for which applicant flow data did
exist, Dr. Bradly and Dr. Fox compared the selection for each
job opening against the specific pool of candidates who applied
for the opening, after removing candidates who were not
minimally qualified for the position because they, for example,
failed a drug screen or failed a relevant skills test. Id. at 8-
9. Dr. Bradley testified that, in his analysis of hiring and
promotion decisions, he did not control for other types of
qualifications that could conceivably influence a hiring or
promotion decision:
Q. But you don’t try to analyze when you’re
trying to figure out whether or not a
component or the overall selection process has
adverse impact, you don’t consider the types
of qualifications that a decision-maker might
have looked at when making the decision, like
experience and other types of qualifications?
A. No, I’m not thinking of that. I’m looking
only at minimum qualifications.
Bradley Dep., ECF No. 331-3 at 28; see also id. at 56-57
(testifying that he did not take educational attainment into
consideration in evaluating hiring or promotion decisions). Dr.
Bradley also admitted that, although internal candidates were
53
“always preferred” in the employment selection process, he did
not control for that in his analysis of Amtrak’s selection
process. Id. at 23-24. Based on this analysis, Dr. Bradley and
Dr. Fox found that there were a total of 6,193 individuals
selected for vacancies for which there was Applicant Flow Data
across all craft groups. Bradley/Fox Rep., ECF No. 304-1 at 10.
Of those, only 2,335 individuals were African-American
individuals, even though one would have expected 2,589 African-
American selections based on the proportion of African-American
candidates in the pool of applicants. Id.
For the majority of vacancies — approximately 49,000 of
them — there was no Applicant Flow Data. Id. at 11. For those
vacancies, Dr. Bradley and Dr. Fox analyzed selections using
proxy benchmarks based on the vacancies for which applicant data
did exist to represent African-American availability. Id. at 11-
12. The same extrapolated benchmark was applied to every
internal selection or external hire decision within a particular
craft group. Id. 11-14, 26-27. For the vacancies for which
Amtrak made external hires, Dr. Bradley and Dr. Fox found that
there were a total of 10,074 individuals selected across all
craft groups; of these, only 3,577 of the individuals selected
were African-American, although 4,312 African-American
selections were expected based on the benchmarks. Id. at 13.
With respect to positions that were eventually filled through
54
internal promotions rather than external hires, Dr. Bradley and
Dr. Fox found that there were a total of 39,548 vacancies across
all craft groups. Id. at 14. Of those, 12,834 were filled by
African-American individuals, even though one would have
expected 14,899 African-American selections. Id. In other words,
Dr. Bradley and Dr. Fox concluded that African-American
individuals were hired less and selected for fewer competitive
promotions than their non-African-American counterparts.
Finally, Dr. Bradley and Dr. Fox analyzed disciplinary
charges and resulting outcomes for Amtrak employees. Id. at 16-
17. They found that there were 10,796 employees who were issued
a total of 24,136 disciplinary charges during the Analysis
Period. Of those charges, 10,651 charges were issued to 4,175
African-American employees, even though one would expect only
8,924 charges to be issued to that group if the disciplinary
process was race-neutral. Id. at 16. Dr. Bradley and Dr. Fox
also found that African-American employees were terminated and
received formal reprimands or deferred suspensions at
statistically higher rates than non-African-American employees.
Id. at 17. Based on their review, Dr. Bradley and Dr. Fox
concluded that African-American employees were charged with
disciplinary violations at a rate higher than their non-African-
American counterparts. Id.
55
2. The Bradley/Fox Report Is Sufficiently Reliable
Amtrak does not dispute that Dr. Bradley and Dr. Fox are
qualified to offer statistical expert testimony. Instead, Amtrak
argues that the Court should not consider Dr. Bradley and Dr.
Fox’s expert report and testimony because their opinions are
unreliable. Amtrak’s argument focuses on Dr. Bradley and Dr.
Fox’s use of extrapolated benchmarks to assess racial
disparities in Amtrak’s hiring and promotional decisions. Def.’s
Mem. in Supp. Mot. to Exclude Bradley and Fox (Def.’s
Bradley/Fox Mem.”), ECF No. 331-1 at 26-32. Specifically, Amtrak
argues that, before extrapolating benchmarks for African-
American hiring and promotion from the applicant flow data, Dr.
Bradley and Dr. Fox were required to ensure that the applicant
flow data was representative of the applicant pool to which the
extrapolated benchmarks would apply. Id. at 28-29. Amtrak also
argues that Dr. Bradley and Dr. Fox did not assess whether the
sample size was sufficient to extrapolate the benchmarks. Id. at
29. Finally, Amtrak contends that Dr. Bradley and Dr. Fox erred
by treating each benchmark as an “exact, known value” rather
than “a sample estimate within a margin of error.” Id. at 29-30.
While Amtrak points to potential problems with Dr. Bradley
and Dr. Fox’s extrapolation techniques, it fails to establish
that these experts used a methodology so unreliable as to
warrant exclusion of their report. There is no evidence that Dr.
56
Bradley and Dr. Fox cherry-picked the data points in
constructing the benchmarks for African-American availability
where that data was not kept in the regular course by Amtrak. It
is, of course, clear that the experts’ extrapolated benchmarks
in areas where no applicant flow data was available is less
precise than Amtrak’s actual applicant flow data. It is also
clear, however, that plaintiffs may rely on reliable estimates
when actual data is unavailable. See General Elec. Co. v.
Joiner, 522 U.S. 136, 146 (1997) (stating the well-established
principle that “[t]rained experts commonly extrapolate from
existing data”); see generally Ramona L. Paetzold & Steven L.
Willborn, The Statistics of Discrimination: Using Statistical
Evidence in Discrimination Cases § 4.03 (2014) (describing the
use of proxy data when actual data is unavailable or
unreliable). It may be that Dr. Bradley and Dr. Fox’s sample
size of approximately 6,200 was too small, and perhaps a larger
sample would have revealed fewer differences between the hiring
and promotion of African-American individuals as compared to
their non-African-American counterparts. Such a criticism can be
brought out in cross-examination and does not render Dr. Bradley
and Dr. Fox’s methodology so unreliable that it should not be
admitted. See, e.g., Equal Emp’t Opportunity Comm’n v. Texas
Roadhouse, Inc., 215 F. Supp. 3d 140, 155 (D. Mass. 2016) (“Even
when statistical analysis has involved general population census
57
data to show discriminatory intent, it has not been precluded on
Fed. R. Evid. 702 grounds.”).
3. The Bradley/Fox Report Has Limited Probative
Value
Amtrak spends the bulk of its brief arguing that
plaintiffs’ statistical evidence is irrelevant to its class-
certification motion because Dr. Bradley and Dr. Fox did not
study a particular employment practice or the decisions of any
common decision-maker. See Def.’s Bradley/Fox Mem. ECF No. 331-1
at 9-26. As such, Amtrak argues that Dr. Bradley and Dr. Fox’s
analysis will be unhelpful to the trier of fact because these
experts cannot opine that any specific employment practice
caused the alleged statistical disparities. Id. at 16. Amtrak
notes that plaintiffs’ experts could have utilized the job files
produced in discovery that contained candidate records,
applications, selection criteria, rating sheets, and other
records relating to each of the selections contained in the
Joint Database. Id. at 7, 11, 36.
Plaintiffs respond that the components of Amtrak’s
selection process “were not able to be separated for analysis
because they were interwoven and overlapping parts of a singular
process.” Pls.’ Opp. to Mot. to Exclude Bradley and Fox, ECF No.
342 at 10-15. Plaintiffs further claim that data to do such an
analysis was not available. Id. at 10, 15-21.
58
Plaintiffs bear the initial burden of making out a prima
facie case of discrimination. Cooper v. Fed. Reserve Bank of
Richmond, 467 U.S. 867, 874 (1984). And because plaintiffs
allege a system-wide pattern or practice of discrimination,
plaintiffs have “to prove more than the mere occurrence of
isolated or ‘accidental’ or sporadic discriminatory acts.” Int’l
Bhd. of Teamsters v. United States, 431 U.S. 324, 336 (1977).
Rather, plaintiffs have “to establish by a preponderance of the
evidence” that racial discrimination was Amtrak’s “standard
operating procedure — the regular rather than the unusual
practice.” Id.
In a case such as this, then, statistical data is relevant
because it can be used to establish a general discriminatory
pattern in an employer’s hiring or promotion practices. As the
Supreme Court explained,
[s]tatistics showing racial or ethnic
imbalance are probative . . . 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 the employees are hired.
Considerations such as small sample size may,
of course, detract from the value of such
evidence, and evidence showing that the
figures for the general population might not
accurately reflect the pool of qualified job
applicants would also be relevant.
59
Int’l Bhd. of Teamsters, 431 U.S. at 340. Importantly, in most
cases in which plaintiffs allege a disparate impact, plaintiffs
must do more than simply “show that there are statistical
disparities in the employer’s work force.” Watson v. Fort Worth
Bank & Trust, 487 U.S. 977, 994 (1988). Rather, plaintiffs are
responsible for “isolating and identifying the specific
employment practices that are allegedly responsible for any
observed statistical disparities.” Id.
In this respect, plaintiffs’ statistical evidence suffers
from a number of shortcomings. For example, Dr. Bradley admitted
that he did not study whether a particular employment practice
at Amtrak caused an adverse impact. Bradley Dep., ECF No. 331-3
at 27. Moreover, although plaintiffs’ claim that Amtrak’s
employment practices are “incapable of being separated for
analysis” and therefore subject to a bottom-line analysis as to
disparate impact, 42 U.S.C. § 2000e—2(k)(1)(B)(i), Dr. Bradley
and Dr. Fox’s report does nothing to demonstrate this fact.
Their report does not grapple with the data contained in
Amtrak’s job files or explain how it was inadequate to render a
statistical analysis as to a particular employment practice.
Nonetheless, although the statistical study proffered by
plaintiffs’ experts may, ultimately, be inadequate to satisfy
plaintiffs’ burden on the merits, the Court declines to exclude
it as irrelevant at this time. As other courts have found, a
60
“statistical study may fall short of proving the plaintiff’s
case, but still remain relevant to the issues in dispute.” Obrey
v. Johnson, 400 F.3d 691, 695 (9th Cir. 2005). For example, in
Obrey, the defendant challenged the admission of the plaintiff’s
expert report because, inter alia, the statistical analysis was
irrelevant to plaintiff’s claims that the defendant engaged in
discriminatory hiring practices. Id. at 694. The statistical
analysis in that case only analyzed the race of the managers
selected by the employer as compared to the race of those who
applied for managerial positions — and, just like in this case,
did not take into account the relative qualifications of the
applicant pool or evaluate any specific employment practice. Id.
at 694-698. While this evidence “by itself” could not
“constitute proof that the [employer] has discriminated against
[the plaintiff],” the court explained that “it should have been
admitted for whatever probative value it had.” Id. at 697. In
other words, “defendant’s objections to the admission of [the
statistical evidence] went to weight and sufficiency rather than
admissibility.” Id.; see also, e.g., Puffer v. Allstate Ins.
Co., 255 F.R.D. 450, 462 (N.D. Ill. 2009) (although plaintiff’s
statistical expert “fail[ed] to link any pay differential that
she found to any [employer] policy or practice,” that deficiency
did not render the report “irrelevant” but rather simply limited
61
its probative value). Accordingly, the Court declines to exclude
Dr. Bradley and Dr. Fox’s testimony or report.
IV. EXCLUSION OF OTHER EVIDENCE
Amtrak has also moved to strike portions of the
declarations submitted by plaintiffs in support of their request
for class certification. Def.’s Mot. to Strike Decls. Of Pls.,
ECF No. 330. Plaintiffs oppose that motion, arguing both that
the admissibility standards on which Amtrak relies are
inapplicable at the class-certification stage, and that, in any
event, the evidence is admissible. Pls.’ Opp. to Mot. to Strike
Decls. Of Pls., ECF No. 340.
Although the Supreme Court has not directly addressed the
issue of whether evidence proffered in support of a motion for
class certification must be admissible if it is to be considered
by the court in determining class certification, its dicta in
Eisen v. Carlisle & Jacuelin, 417 U.S. 156 (1974), led some
courts to find that lax evidentiary standards were appropriate. 3
3 On September 14, 2017, a petition for writ of certiorari
was filed presenting this precise question – to wit, “[w]hether
a district court may certify a class action based on information
that does not meet the standards of admissibility set forth in
the Federal Rules of Evidence and Civil Procedure.” See Notice
of Filing of Petition for a Writ of Certiorari, Taylor Farms
Pac., Inc. v. Pena, No. 15-15965 (9th Cir. Sept. 14, 2017), ECF
No. 57 Ex. A at 2. The Supreme Court denied the petition for
writ of certiorari on February 20, 2018. See Taylor Farms
Pacific, Inc. v. Pena, No. 17-395.
62
In Eisen, the Supreme Court emphasized that a court’s decision
at the class-certification stage “is not accompanied by the
traditional rules and procedures applicable to civil trials.”
Id. at 178. This statement came in the context of the Court’s
oft-cited conclusion — arrived at in the course of overruling a
district court’s decision to direct a defendant to cover some of
the costs of providing notice to the class on the basis that
plaintiffs were likely to succeed on the merits — that “[w]e
find nothing in either the language or history of Rule 23 that
gives a court any authority to conduct a preliminary inquiry
into the merits of a suit in order to determine whether it may
be maintained as a class action.” Id. at 177.
Relying upon the statement regarding the absence of
“traditional rules and procedures” at the class-certification
stage, the D.C. Circuit held in an unpublished opinion that the
rules of evidence do not apply at the class-certification stage.
See In re Rand Corp., No. 02-8007, 2002 WL 1461810, at *1 (D.C.
Cir. July 8, 2002) (“[T]he propriety of a district court’s
refusal to scrutinize for admissibility and probative value
evidence proffered to demonstrate that the requirements of
Federal Rule of Civil Procedure 23(a) are satisfied is well-
settled”). District courts, as plaintiffs recite, came to
similar conclusions. See, e.g., Disability Rts. Council v. Wash.
Metro. Area Transit Auth., 239 F.R.D. 9 (D.D.C. 2006).
63
The Supreme Court’s decisions in Dukes and Comcast,
however, have since shifted this landscape. In Dukes, the
Supreme Court made clear that “[a] party seeking class
certification must affirmatively demonstrate his compliance with
[Rule 23] — that is, he must be prepared to prove that there are
in fact sufficiently numerous parties, common questions of law
or fact, etc.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350
(2011). The Court further explained that the “rigorous analysis”
a district court must perform of a plaintiffs’ claim for
certification “‘[f]requently . . . will entail some overlap with
the merits of the plaintiff’s underlying claim.’” Id. at 351.
The Court elaborated:
A statement in one of our prior cases, Eisen
v. Carlisle & Jacquelin, 417 U.S. 156, 177
(1974), is sometimes mistakenly cited to the
contrary: ‘We find nothing in either the
language or history of Rule 23 that gives a
court any authority to conduct a preliminary
inquiry into the merits of a suit in order to
determine whether it may be maintained as a
class action.’ But in that case, the judge had
conducted a preliminary inquiry into the
merits of a suit, not in order to determine
the propriety of certification under Rule
23(a) and (b) . . . but in order to shift the
cost of notice required by Rule 23(c)(2) from
the plaintiff to the defendants. To the extent
the quoted statement goes beyond the
permissibility of a merits inquiry for any
other pretrial purpose, it is the purest
dictum and is contradicted by our other cases.
Id. 351 n.6.
64
In Comcast, the Supreme Court reiterated the importance of
considering all merits questions that may bear on any of the
Rule 23 factors. See Comcast Corp. v. Behrend, 569 U.S. 27, 35
(2013). In so doing, the Court reiterated the requirement that a
party seeking certification affirmatively demonstrate compliance
with Rule 23 “through evidentiary proof.” Id. at 33. The D.C.
Circuit has recognized that, post-Comcast, “[i]t is now
indisputably the role of the district court to scrutinize the
evidence before granting certification, even when doing so
‘requires inquiry into the merits of the claim.’” In re Rail
Freight Fuel Surcharge Antitrust Litig., 725 F.3d 244, 253 (D.C.
Cir. 2013) (quoting Comcast, 569 U.S. at 35).
These cases do not address the precise question before the
Court — i.e., whether class-certification evidence must meet the
standards of admissibility as set forth in the Federal Rules of
Evidence. Moreover, although the Supreme Court granted
certiorari in Comcast to decide “[w]hether a district court may
certify a class action without resolving whether the plaintiff
class had introduced admissible evidence,” it ultimately did not
decide that question because defendants had failed to raise an
appropriate objection on that ground before the trial court and
thus forfeited the issue. Comcast, 569 U.S. at 33 n.4. These
decisions suggest, however, that when a party objects to
evidence provided in support of class certification, a district
65
court must assess the admissibility of that evidence before
certifying a class. As such, the Court concludes that, to the
extent it relies on any controverted portions of plaintiffs’
proffered declarations to support its class-certification
ruling, it must first address Amtrak’s evidentiary objections. 4
Accordingly, in the course of its analysis, the Court will
resolve Amtrak’s objections to the portions of plaintiffs’
declarations that the Court relies on in reaching its class-
certification decision. To the extent the Court does not rely on
the declarations, the Court will not address Amtrak’s
evidentiary objections, and Amtrak must re-raise them in future
proceedings.
4 Although this holding conflicts with the D.C. Circuit’s
unpublished decision in In re Rand, No. 02-8007, 2002 WL
1461810, at *1 (D.C. Cir. July 8, 2002), the Court concludes
that it is not bound by that decision. For one, unpublished
decisions “‘should not strictly bind panels’ of the court of
appeals and are often not ‘suitable for governing future cases’
given that they neither reach the merits nor benefit from oral
argument.” Martin v. Dist. of Columbia, 78 F. Supp. 3d 279, 308
n.36 (D.D.C. 2015) (quoting In re Grant, 635 F.3d 1227, 1232
(D.C. Cir. 2011)). The persuasiveness of such a disposition is
further undermined where, as here, subsequent doctrinal changes
have significantly altered the landscape. See id. (noting as an
additional reason not to be bound by an unpublished disposition
the fact that “the tides have changed in the last seventeen
years” regarding the legal doctrine at issue).
66
V. CLASS CERTIFICATION
“The class action is ‘an exception to the usual rule that
litigation is conducted by and on behalf of the individual named
parties only.’” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013)
(citation omitted). Class certification is governed by Federal
Rule of Civil Procedure 23, which requires a plaintiff to
demonstrate that the requirements of Rule 23(a) are met and that
the class is maintainable pursuant to one of Rule 23(b)’s
subdivisions. See Richards v. Delta Air Lines, Inc., 453 F.3d
525, 529 (D.C. Cir. 2006).
The D.C. Circuit has made clear that class certification
“is far from automatic.” In re Rail Freight Fuel Surcharge
Antitrust Litig., 725 F.3d 244, 249 (D.C. Cir. 2013). Rather, a
plaintiff seeking certification of a class must “affirmatively
demonstrate his compliance” with the requirements of Rule 23.
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). This
is done not by pleading compliance with Rule 23, but by
demonstrating “compliance . . . in fact.” Id. At times,
determining whether the proponent of a class has satisfied the
requirements of Rule 23 “resembles an appraisal of the merits,
for ‘it may be necessary for the court to probe behind the
pleadings before coming to rest on the certification question.’”
In re Rail Freight Fuel Surcharge Antitrust Litig., 725 F.3d at
244 (citation omitted). The Court may not, however “consider
67
merits questions that do not overlap with Rule 23’s
requirements.” Coleman through Bunn v. Dist. of Columbia, 306
F.R.D. 68, 77 (D.D.C. 2015). “Ultimately, the district court’s
determination must rest on a ‘rigorous analysis’ to ensure that
all the requirements are satisfied, and ‘[a]ctual, not presumed,
conformance’ with Rule 23 is indispensable.” Burton v. Dist. of
Columbia, 277 F.R.D. 224, 228 (D.D.C. 2011) (citation omitted). 5
5 Because Amtrak filed both an opposition to plaintiffs’
motion for class certification and its motion for summary
judgment on the same day, it bears noting that “the order of
disposition of motions for summary judgement and class
certification” is “a question of discretion for the trial
court.” Curtin v. United Airlines, Inc., 275 F.3d 88, 92 (D.C.
Cir. 2001). Rule 23(c)(1)(A) directs the court to determine
“[a]t an early practicable time” whether to certify a class
action, and “it is often more efficient and fairer to the
parties to decide the class question first,” Curtin, 275 F.3d at
92; see also Am. Pipe & Const. Co. v. Utah, 414 U.S. 538, 547-49
(1974) (noting that the 1966 amendment to Rule 23 requiring a
court to decide the class-certification question “as soon as
practicable” was designed, in part, to curtail the abusive
practice of one-way intervention). The advisory committee notes
to Rule 23 recognize, however, that a decision on summary
judgment may be appropriate prior to a certification ruling in
certain circumstances. See Fed. R. Civ. P. 23 advisory committee
notes (“Other considerations may affect the timing of the
certification decision. The party opposing the class may prefer
to win dismissal or summary judgment as to the individual
plaintiffs without certification and without binding the class
that might have been certified.”). Here, the Court will follow
the ordinary course and will first address plaintiffs’ motion
for a class certification before addressing the legal merits of
plaintiffs’ claims under section 1981 and Title VII.
68
A. Plaintiffs’ Proposed Classes
The named plaintiffs in this case are seventy-one African-
American Amtrak employees, former Amtrak employees, or
applicants for employment at Amtrak. Plaintiffs move to certify
the following classes or, in the alternative, subclasses:
(1) All Black employees of Amtrak who are
represented for purposes of collective
bargaining by any labor union (except those
who have worked only in the Northeast Corridor
and are represented for purposes of collective
bargaining by the Pennsylvania Federation of
the Brotherhood of Maintenance of Way
Employees) (herein, “Black CBA employees”)
who, since April 4, 1996, have been
discriminated against because of their race or
color in regard to competitive promotion
selections; and/or in the alternative,
(a) a subclass of all Black CBA employees
who, since April 4, 1996, have worked for
Amtrak in any of the Shop Crafts who raise
such promotion selection claims;
(b) a subclass of all Black CBA employees
who, since April 4, 1996, have worked for
Amtrak in any of the Engineering Crafts who
raise such promotion selection claims;
(c) a subclass of all Black CBA employees
who, since April 4, 1996, have worked for
Amtrak in any of the Operating and Police
Crafts who raise such promotion selection
claims;
(d) a subclass of all Black CBA employees
who, since April 4, 1996, have worked for
Amtrak in any of the Clerical and On-Board
Services Crafts who raise such promotion
selection claims;
(2) All Black CBA employees of Amtrak who,
since April 4, 1996, have been exposed to a
racially hostile work environment, as embodied
69
in racial harassment and/or racial
discrimination in regard to training, job
assignments, work assignments, non-
competitive transfers, scheduling, and other
terms and conditions of employment; and/or in
the alternative,
(a) a subclass of all Black CBA employees
who, since April 4, 1996, have worked for
Amtrak in any of the Shop Crafts and have been
exposed to such a racially hostile work
environment;
(b) a subclass of all Black CBA employees
who, since April 4, 1996, have worked for
Amtrak in any of the Engineering Crafts and
have been exposed to such a racially hostile
work environment;
(c) a subclass of all Black CBA employees
who, since April 4, 1996, have worked for
Amtrak in any of the Operating and Police
Crafts and have been exposed to such a
racially hostile work environment;
(d) a subclass of all Black CBA employees
who, since April 4, 1996, have worked for
Amtrak in any of the Clerical and On-Board
Services Crafts and have been exposed to such
a racially hostile work environment;
(3) All Black CBA employees of Amtrak who,
since April 4, 1996, have been discriminated
against in regard to discipline or
termination; and/or in the alternative,
(a) a subclass of all Black CBA employees
who, since April 4, 1996, have worked for
Amtrak in any of the Shop Crafts and have been
discriminated against in regard to discipline
or termination;
(b) a subclass of all Black CBA employees
who, since April 4, 1996, have worked for
Amtrak in any of the Engineering Crafts and
have been discriminated against in regard to
discipline or termination;
70
(c) a subclass of all Black CBA employees
who, since April 4, 1996, have worked for
Amtrak in any of the Operating and Police
Crafts and have been discriminated against in
regard to discipline or termination;
(d) a subclass of all Black CBA employees
who, since April 4, 1996, have worked for
Amtrak in any of the Clerical and On-Board
Services Crafts and have been discriminated
against in regard to discipline or
termination; and
(4) All Black CBA who have applied to work for
Amtrak for any position(s) that would be
represented for purposes of collective
bargaining by any labor union since April 4,
1996, and been denied employment because of
their race.
Pls.’ Mot. for Class Cert., ECF No. 303 at 1-3.
B. Plaintiffs’ Proposed Classes And Subclasses Are
Impermissibly Fail-Safe
Although not specifically mentioned in Rule 23, there is an
“implied requirement” that the class be “adequately defined” and
“clearly ascertainable” before it can be certified. Thorpe v.
Dist. of Columbia, 303 F.R.D. 120, 139 (D.D.C. 2014) (citation
omitted). This “common-sense requirement” demands that the
plaintiff “be able to establish [that] the general outlines of
the membership of the class are determinable at the outset of
the litigation.” Id. (citation omitted); see also, e.g., Johnson
v. Dist. of Columbia, 248 F.R.D. 46, 52 (D.D.C. 2008) (“It is
axiomatic that for a class action to be certified a ‘class’ must
exist.”); In re Rail Freight Fuel Surcharge Antitrust Litig.,
No. 07-0489, 2017 WL 5311533, at *51 (D.D.C. Nov. 13, 2017)
71
(explaining that an “implied” requirement of Rule 23 is that the
putative class be “‘sufficiently defined so as to be
identifiable as a class’”) (citation omitted). “Accordingly, a
class may be certified only when ‘an individual would be able to
determine, simply by reading the [class] definition, whether he
or she [is] a member of the proposed class.’” Artis v. Yellen,
307 F.R.D. 13, 23 (D.D.C. 2014) (citation omitted).
One aspect of this requirement that the class be adequately
defined is that it not be a “fail-safe class” — i.e., that the
class definition not depend on the merits of the underlying
claim. See, e.g., McCaster v. Darden Rests., Inc., 845 F.3d 794,
799 (7th Cir. 2017) (a fail-safe class is one that “‘is defined
so that whether a person qualifies as a member depends on
whether the person has a valid claim’”) (citation omitted);
Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 538 (6th Cir.
2012) (defining a fail-safe class as “a class that cannot be
defined until the case is resolved on its merits”). A fail-safe
class is impermissible because “a class member either wins or,
by virtue of losing, is defined out of the class and is
therefore not bound by the judgment.” Messner v. Northshore
Univ. HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012). Moreover,
by “‘[u]sing a future decision on the merits to specify the
scope of the class,’” a fail-safe class definition “‘makes it
impossible to determine who in in the class until the case
72
ends.’” Artis v. Yellen, 307 F.R.D. 13, 24 (D.D.C. 2014)
(quoting Bolden v. Walsh Const. Co., 688 F.3d 893, 895 (7th Cir.
2012)); see also Williams v. Glickman, No. 95-1149, 1997 WL
33772612, at *4 (D.D.C. Feb. 14, 1997) (class not clearly
defined because, to ascertain class membership, the court would
be required to “answer several fact-intensive questions”).
Plaintiffs move to certify the following classes:
(1) All Black CBA employees who . . . have
been discriminated against because of their
race or color in regard to competitive
promotion selections;
(2) All Black CBA employees who . . . have
been exposed to a racially hostile work
environment, as embodied in racial harassment
and/or racial discrimination, in regard to
training, job assignments, work assignments,
non-competitive transfers, scheduling, and
other terms and conditions of employment;
(3) All Black CBA employees who . . . have
been discriminated against in regard to
discipline or termination; and/or in the
alternative,
(4) All Black CBA who have applied to work for
Amtrak for any position(s) that would be
represented for purposes of collective
bargaining by any labor union . . . and been
denied employment because of their race.
Pls.’ Mot. to Certify Class, ECF No. 303 at 1-3 (emphases
added).
Each of these proposed class definitions makes membership
in the class contingent on individualized merits determinations
as to whether the individual suffered discrimination because of
73
his race, was exposed to racial harassment and/or racial
discrimination, or was denied employment because of his race. In
other words, to determine whether any individual is a member of
one of these putative classes, the Court would be required to
answer a critical question that goes directly to the merits of
the litigation: did the individual suffer racial discrimination
at the hands of Amtrak?
Moreover, should the Court or a jury conclude that Amtrak’s
employment decisions were not based on race, plaintiffs’
proposed classes would contain no members. Each of the supposed
class members would then be free to file new lawsuits
attributing their adverse employment decisions to some other
impermissible criteria, thereby depriving the judgment of any
preclusive effect. See, e.g., Bolden v. Walsh Const. Co., 688
F.3d 893, 895 (7th Cir. 2012) (class defined as persons who did
not earn more “because of their race” made “it impossible to
determine who was in the class until the case ends,” creating
the prospect that, if the employer prevailed on the merits, any
former worker “could file a new suit, given that the losing
‘class’ lacked any members”); Lucas v. Vee Pak, Inc., 68 F.
Supp. 3d 870, 880 (N.D. Ill. 2014) (“All variations set forth in
the complaint beg the question of liability, in that the class
is made up of certain African—American workers who were not
hired ‘because of their race.’ It is therefore a ‘fail-safe’
74
class: ‘one that is defined so that whether a person qualifies
as a member depends on whether the person has a valid claim.’”)
(citation omitted).
The parties have failed to address these problems with
plaintiffs’ class definition, perhaps because the problems are
repairable. Plaintiffs could, for example, redefine their
classes so that membership is not contingent on whether the
individual suffered racial discrimination. Cf. Messner, 669 F.3d
at 825 (“Defining a class so as to avoid, on one hand, being
over-inclusive and, on the other hand, the fail-safe problem is
more of an art than a science. Either problem can and often
should be solved by refining the class definition rather than by
flatly denying class certification on that basis.”); In re
AutoZone, Inc., Wage & Hour Emp’t Practices Litig., 289 F.R.D.
526, 546 (N.D. Cal. 2012)(“Rather than denying certification on
the basis of the fail-safe definition, the Court would have
discretion here to redefine the class as ‘all employees who
sought and did not receive reimbursement for mileage,’ which
seems to avoid both ascertainability problems. This problem is
therefore not insurmountable.”). Accordingly, in the interest of
judicial economy, the Court will address the parties’ arguments
regarding the requirements of Rule 23.
75
C. Plaintiffs Have Failed to Demonstrate That The
Proposed Class Action Satisfies The Commonality
Requirement Of Rule 23(a)
A plaintiff seeking class certification must establish that
“there are questions of law or fact common to the class.” Fed.
R. Civ. P. 23(a)(2). The Supreme Court’s decision in Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338 (2011), “changed the
landscape” that the district court must navigate when
considering whether a putative class action satisfies Rule
23(a)’s commonality requirement. D.L. v. Dist. of Columbia, 713
F.3d 120, 126 (D.C. Cir. 2013). In Dukes, the plaintiffs alleged
that Wal-Mart discriminated against female employees by denying
them equal pay or promotions as compared with male employees.
564 U.S. at 343. Specifically, the plaintiffs claimed that their
local managers’ discretion over pay and promotions was exercised
disproportionately in favor of men, leading to an unlawful
disparate impact on, and disparate treatment of, female
employees. Id. at 344-45. The plaintiffs claimed that this
discrimination was “common to all Wal-Mart’s female employees”
and that “a strong and uniform ‘corporate culture’ permit[ted]
bias against women to infect, perhaps subconsciously, the
discretionary decisionmaking of each one of Wal-Mart’s thousands
of managers.” Id. at 345.
The district court certified a class consisting of Wal-
Mart’s female employees who “have been or may be subjected to
76
Wal-Mart’s challenged pay and management track promotions
policies and practices.” Id. at 346. The Court of Appeals for
the Ninth Circuit substantially affirmed, but the Supreme Court
reversed, denying class certification for failure to satisfy the
commonality requirement of Rule 23(a)(2). Id. at 345-59.
In so doing, the Supreme Court first explained that Rule
23’s commonality requirement “is easy to misread, since any
competently crafted class complaint literally raises common
‘questions.’” Id. at 349 (citation and internal quotation marks
omitted). Commonality requires more than common questions; it
requires “the plaintiff to demonstrate that the class members
‘have suffered the same injury.’” Id. at 350 (quoting Gen. Tel.
Co. v. Falcon, 457 U.S. 147, 157 (1982)). In other words, the
claims of the putative class members “must depend upon a common
contention” that is “of such a nature that it is capable of
classwide resolution” — i.e., “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. The Dukes
plaintiffs identified only a general policy “of allowing
discretion by local supervisors over employment matters” —
effectively “a policy against having uniform employment
practices.” Id. at 355. Resolution of the legality of any one
manager’s exercise of discretion, then, would have no bearing on
the legality of any other manager’s action, absent “some glue
77
holding the alleged reasons for all those decisions together.”
Id. at 351. The Supreme Court noted that such glue could be
provided “if the employer ‘used a biased testing procedure’” or
upon “‘[s]ignificant proof that an employer operated under a
general policy of discrimination.’” Id. at 353 (quoting Falcon,
457 U.S. 159 n.15).
Plaintiffs do not seriously contend that they can
demonstrate commonality under Falcon’s first scenario here.
While plaintiffs assert that “a biased testing procedure” need
not be limited to “paper-and-pencil tests” and suggest that
Amtrak’s “selection interview process, ratings, rank-orderings,
input from other managers, amorphous decision making, and the
disqualifying discipline criterion” all qualify, plaintiffs give
that argument short shrift, and with good reason. See Pls.’ Mem.
in Supp. of Mot. for Class Cert. (“Pls.’ Class Cert. Mem.”), ECF
No. 303 at 25. For one, plaintiffs nowhere explain how some of
these practices — for example, “amorphous decision making” or
seeking “input from other managers” before hiring or promoting
individuals — can be considered “non-subjective” criteria. Id.
Even if they had, plaintiffs do not allege, much less
demonstrate, that all members of the putative class were subject
to the same set of objective procedures or policies. To the
contrary, the evidence shows that the interview process,
assignment of ratings, and rank orderings varied depending on
78
the position and the panel of interviewers involved. See, e.g.,
Ray Decl., ECF No. 322-5 ¶¶ 11-41; Wu Decl., ECF No. 322-8 ¶ 4;
Allan Decl., ECF No. 321-3 ¶ 5.
Moreover, plaintiffs do not explain with any detail how any
such policies “operated in a biased way.” Burton v. Dist. of
Columbia, 277 F.R.D. 224, 229 (D.D.C. 2011) (plaintiffs
allegation that defendant “used a biased testing procedure” was
insufficient where plaintiffs provided no “detail about how
those examinations operated in a biased way”); see also Ross v.
Lockheed Martin Corp., 267 F. Supp. 3d 174, 197-98 (D.D.C.
2017)(despite plaintiffs’ assertion that defendant’s
“companywide evaluation method” resulted in employee ratings
that were “poorly correlated with job performance,” plaintiffs
did not provide “an account of how those procedures themselves
resulted in the racially disparate outcome that Plaintiffs have
observed in [defendant]’s overall workforce”).
Plaintiffs’ theories of commonality under Falcon’s second
scenario are far from clear. Plaintiffs acknowledge that
Amtrak’s express policies forbid racial discrimination and
retaliation. Pls.’ Class Cert. Mem., ECF No. 303 at 14. Instead,
plaintiffs argue that “Amtrak’s centrally-imposed policies,
practices, and procedures,” while uniform and racially-neutral,
were open to “variations in practice” by supervisors which led
to racial bias in employment decisions. Id. at 26; see also id.
79
at 24 (asserting that “all of Amtrak’s employment policies are
entirely uniform nationwide, but are poorly implemented”); id.
at 30 (there were “deviations or variations” from “commonly
applicable procedures” that permitted “the influx of racially
discriminatory bias”); id. at 7 (“Depositions of scores of
Amtrak managers reflected that the standard selection process
was followed throughout the country across all crafts; however,
they also revealed numerous variations which allowed for the
infusion of subjective qualities.”).
Stated this way, plaintiffs’ theory of commonality rests on
the contention that Amtrak allowed lower-level employees to
deviate from standard policies, which resulted in employment
decisions being infected by bias. This theory is the same as the
theory of commonality rejected in Dukes. Compare Pls.’ Class
Cert. Mem., ECF No. 303 at 26 (“Plaintiffs here show the pattern
or practice [of racial discrimination] by demonstrating that
Amtrak’s centrally-imposed policies, practices, and procedures
were in place and implemented throughout Amtrak’s system, that
Amtrak headquarters mandated that the polices be used company-
wide, and that variations in practice open the process up to the
influences of bias[.]”), with Dukes v. Wal-Mart Stores, Inc.,
222 F.R.D. 137, 145 (N.D. Cal. 2004) (“Plaintiffs present
evidence that Wal-Mart’s policies governing compensation and
promotions are similar across all stores, and build in a common
80
feature of excessive subjectivity which provides a conduit for
gender bias that affects all class members in a similar
fashion.”). As the Dukes court explained, such a “policy” of
delegating discretion is “just the opposite of a uniform
employment practice that would provide the commonality needed
for a class action.” Dukes, 564 U.S. at 355. 6
Indeed, in the wake of Dukes, courts “have generally denied
certification when allegedly discriminatory policies are highly
discretionary.” Tabor v. Hilti, Inc., 703 F.3d 1206, 1229 (10th
Cir. 2013). But Dukes “did not set out a per se rule against
class certification where subjective decisionmaking or
discretion is alleged”; rather, “to satisfy commonality, a
plaintiff must demonstrate that the exercise of discretion is
6 Plaintiffs point to the testimony of one deponent to argue
that the ultimate decision to hire or promote an employee rested
exclusively with Amtrak’s Chief Executive Officer. See Pls.’
Class Cert. Mem., ECF No. 303 at 16 (citing Walker Dep., ECF No.
309-4 at 4). Declarations from other employees, however, suggest
that individual hiring decisions are made by local managers
based on a host of factors. See Ray Decl., ECF No. 322-5 ¶ 44
(“the Hiring Manager, sometimes with input from his or her
department, is responsible for selecting the final candidate for
hire”); Allan Decl., ECF No. 321-3 ¶ 17 (explaining that the
“ultimate decision making authority” on a hiring decision “lies
with the Hiring Manager”). Accordingly, plaintiffs have not
established that only upper-level management were involved in
many or all the challenged employment decisions. See Scott v.
Family Dollar Stores, Inc., 733 F.3d 105, 114 (4th Cir. 2013)
(explaining that Dukes is “limited to the exercise of discretion
by lower-level employees, as opposed to upper-level, top-
management personnel”).
81
tied to a specific employment practice, and that the ‘subjective
practice at issue affected the class in a uniform manner.’”
Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 113 (4th Cir.
2013) (citation omitted). In other words, the requisite “glue”
may be provided by “unit[ing] acts of discretion under a single
policy or practice, or through a single mode of exercising
discretion.” In re Countrywide Fin. Corp. Mortg. Lending
Practices Litig., 708 F.3d 704, 708 (6th Cir.2013); see also
Tabor, 703 F.3d at 1229 (to satisfy commonality, plaintiffs must
“point to ‘a common mode of exercising discretion that pervades
the entire company’”) (citation omitted).
Plaintiffs suggest that they provide such “glue” because
Amtrak’s common and uniform employment policies — as set out in
corporate policies governing promotions and transfers and
through various collective-bargaining provisions — unite the
individual acts of discretion of lower-level employees. See
Pls.’ Reply in Supp. of Mot. to Certify Class, ECF No. 344 at 6-
14. 7 To be sure, the Dukes Court recognized that, “‘in
7 Amtrak moves to strike certain new arguments raised by
plaintiffs in their reply memorandum in support of their motion
for class certification. See Def.’s Mem. in Supp. of Mot. to
Strike Reply, ECF No. 353-1 at 4-18. Amtrak further moves to
strike portions of the declarations submitted in support of
plaintiffs’ opposition to Amtrak’s motion to exclude Drs.
Bradley and Fox as inadmissible under the Federal Rules of
Evidence. See id. at 18-31. Taking the second argument first,
the Court agrees with Amtrak that the Court cannot rely on
plaintiffs’ declarations without resolving Amtrak’s evidentiary
82
appropriate cases,’ giving discretion to lower-level supervisors
can be the basis of Title VII liability . . . since ‘an
employer’s undisciplined system of subjective decisionmaking
[can have] precisely the same effects as a system pervaded by
impermissible intentional discrimination.’” Dukes, 564 U.S. at
355 (quoting Watson v. Fort Worth Bank & Trust, 487 U.S. 977,
990-91 (1988)). But “demonstrating the invalidity of one
manager’s use of discretion will do nothing to demonstrate the
invalidity of another’s,” and therefore, in the usual course, a
party seeking class certification “will be unable to show that
all the employees’ Title VII claims will in fact depend on
answers to common questions.” Id. at 355-56; cf. Garcia v.
Johanns, 444 F.3d 625, 632 (D.C. Cir. 2006) (“Establishing
commonality for a disparate treatment class is particularly
difficult where, as here, multiple decisionmakers with
significant local autonomy exist.”). Thus, to establish
commonality under such a theory, plaintiffs must show how
Amtrak’s uniform polices resulted in a common mode of exercising
objections. See supra Part IV. Because the Court does not rely
on the portions of the declarations to which Amtrak objects, the
Court does not address Amtrak’s objections at this time. As for
Amtrak’s first argument, the Court finds that, to the extent
plaintiffs’ raised any purportedly new arguments in their reply,
Amtrak sufficiently addressed those arguments in its motion to
strike. Accordingly, because Amtrak will not be prejudiced by
the Court’s consideration of plaintiffs’ reply memorandum, it
denies Amtrak’s motion to strike any “new” arguments.
83
discretion that pervaded the entire company and led to the
discrimination about which plaintiffs complain.
Plaintiffs try to make such a showing by pointing to (1)
the testimony of their expert that Amtrak’s uniform employment
policies were vulnerable to bias; (2) statistical evidence that
shows disparities in selection and discipline rates between
African-American and non-African-American individuals; (3)
anecdotal evidence from members of the putative class describing
instances of racial discrimination; and (4) the testimony of a
former Amtrak employee discussing the inadequacies in Amtrak’s
handling of discrimination complaints. As explained more fully
below, the Court finds that plaintiffs have failed to put
forward “significant proof” that any alleged disparate outcomes
in Amtrak’s hiring, promoting, and disciplinary decisions are
the result of a common mode of exercising discretion.
Accordingly, plaintiffs have not satisfied Rule 23(a)’s
commonality requirements, and plaintiffs’ proposed classes
cannot be certified.
1. Dr. Finkelman’s Testimony Is Unreliable And
Therefore Does Not Support Plaintiffs’ Theory of
Commonality
Plaintiffs assert that the opinions of their industrial-
organizational psychology expert, Dr. Jay Finkelman, support
their contention that Amtrak’s human-resources practices made
the company’s employment decisions vulnerable to bias. Pls.’
84
Class Cert. Mem., ECF No. 303 at 17-18, 26. Dr. Finkelman opines
that individual managers departed from Amtrak’s uniform hiring,
promotion, and disciplinary policies in a way that “allowed for
subjectivity and the potential for bias or discrimination.”
Finkelman Dep., ECF No. 319-3 at 4-5; see also Finkelman Rep.,
ECF No. 304-3 at 25 (“There is a disturbing and pervasive
randomness to the evaluation, selection and discipline
procedures that Amtrak apparently uses throughout the system.
There are few is any controls against intentional or inadvertent
bias or discrimination. The process appears to be highly
subjective and unstructured.”). As previously explained,
however, Dr. Finkelman’s failure to verify the facts supporting
his opinions render his report and testimony unreliable under
the standards set forth in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). See supra Part
III.C. Therefore, the Court will not consider his report or
testimony in evaluating plaintiffs’ commonality arguments. 8
8 In any event, Dr. Finkelman’s report and testimony do not
show that managers or others at Amtrak applied their discretion
in any common way that caused racial disparities. Indeed, he
does not opine that Amtrak’s practices actually resulted in any
biased employment decisions; rather, he opines that Amtrak’s
processes created a “potential” for bias. Finkelman Dep., ECF
No. 319-3 at 4-5. As Amtrak correctly notes, this sort of
testimony is similar to the testimony offered by the plaintiffs’
expert in Dukes, who opined that Wal-Mart’s corporate culture
made it “vulnerable” to bias but “could not calculate whether
0.5 percent or 95 percent of the employment decisions . . .
might be determined by stereotyped thinking.” Dukes, 564 U.S. at
85
2. Plaintiffs’ Statistical Evidence Does Nothing To
Establish That Amtrak’s Employment Practices Led
To Any Alleged Disparate Outcomes
Plaintiffs next point to statistical evidence to show that
Amtrak’s facially-neutral employment policies resulted in a
disparate racial impact. Pls.’ Class Cert. Mem., ECF No. 303 at
18-19, 26, 30. Specifically, plaintiffs’ statistical experts,
Dr. Bradley and Dr. Fox, found that African-American individuals
were hired and promoted for vacant positions at rates lower than
their non-African-American counterparts and were disciplined at
rates higher than their non-African-American counterparts. See
generally Bradley/Fox Rep., ECF No. 304-1.
Statistical evidence may, of course, be used to prove
discrimination on a disparate-impact theory. See, e.g., Watson
v. Fort Worth Bank and Trust, 487 U.S. 977, 991-1000 (1988).
Dukes did not change this standard, but rather reiterated that
statistical correlation cannot substitute for a specific finding
of class-action commonality. See Dukes, 564 U.S. at 356. In
other words, “merely proving that the discretionary system has
produced a racial . . . disparity is not enough” where
plaintiffs are unable to identify a specific employment practice
354. The Supreme Court found that this testimony could be
“safely disregard[ed]” and was “worlds away from ‘significant
proof’ that Wal-Mart ‘operated under a general policy of
discrimination.’” Id.
86
that is responsible for the alleged disparity. Id. This is
particularly true when, as here, the challenged employment
practices combine both objective and subjective components. See
Watson, 487 U.S. at 994 (“Especially in cases where an employer
combines subjective criteria with the use of more rigid
standardized rules or tests, the plaintiff is in our view
responsible for isolating and identifying the specific
employment practices that are allegedly responsible for any
observed statistical disparities.”).
Here, the critical question is whether Dr. Bradley and Dr.
Fox’s statistical analysis shows that subjective employment
decisions at Amtrak led to racially disparate outcomes. Dr.
Bradley admitted, however, that the statistical analysis did not
focus on any particular employment practice, and he acknowledged
that he therefore cannot opine that a particular employment
practice caused any alleged racial disparities:
Q. Dr. Bradley, I’d like to ask whether or not
you can give a professional statistical
opinion or do you give a professional
statistical opinion in your report that a
particular employment practice at Amtrak
caused adverse impact against African-
Americans?
A. I cannot.
Q. Did you study whether a particular
employment practice at Amtrak caused adverse
impact?
A. I did not.
87
Bradley Dep., ECF NO. 331-3 at 27.
Dr. Bradley reiterated this conclusion later in his
testimony:
Q. If we start at a global level, how do I
know that the employees that I’m looking at .
. . were affected by some type of criteria
that had adverse impact on them that was the
same criteria?
A. Well, it may not be the same criteria. You
get differences I think like we do across all
of these jobs in a particular craft. And
blacks are showing a smaller rate and it is
statistically significant, that indicates to
me there’s some problem somewhere and we need
to investigate where that problem is.
Id. at 32-33. In other words, plaintiffs’ statistical experts do
little more than establish that African-American candidates are
underrepresented in Amtrak’s hiring and promotion decisions, and
overrepresented in Amtrak’s disciplinary decisions. This is
precisely the sort of statistical evidence that was rejected as
insufficient in Dukes. See Dukes, 565 U.S. 356-57.
Moreover, in conducting their analysis, Dr. Bradley and Dr.
Fox examined employment decisions across four craft groups, each
of which contain numerous positions with different
responsibilities, that are overseen by different supervisors,
that are in different locations, and that are covered by
different labor unions. See Expert Rep. of Jerrold A. Glass, ECF
No. 320-4 ¶¶ 14-24. When asked about his approach, Dr. Bradley
88
conceded that his aggregated analysis would not permit any
conclusions about the potential causes of any racially-disparate
impact seen in the statistical analysis:
Q. Wouldn’t you want to . . . try to find the
jobs that are similar to each other and
aggregate them?
A. At some point once you you’ve got adverse
impact, you want to try and drill down and
find out where the problems are occurring.
Q. Did you do that in your study, try to drill
down?
A. I have not done that.
Q. Why not?
A. I wasn’t asked to do that in this particular
case.
Bradley Dep., ECF No. 331-3 at 32. Other courts have rejected
Dr. Bradley’s expert opinions for similar reasons. See Anderson
v. Westinghouse Savannah River Co., 406 F.3d 248, 262-63 (4th
Cir. 2005) (district court did not err in excluding Dr.
Bradley’s opinions because his statistical analysis did not
compare similarly-situated employees and therefore was not
probative of whether or not there was a disparate impact).
Indeed, Amtrak’s statistical expert — whose qualifications and
opinions plaintiffs do not challenge — found that there was no
consistent pattern of adverse outcomes for African-American
individuals when decisions were analyzed based on job-specific
89
selection criteria. See Expert Rep. of Donald Deere (“Deere
Rep.”), ECF No. 328-5 at 28-32.
Nor did Dr. Bradley and Dr. Fox consider objective factors
like seniority, previous work experience, or education in
examining Amtrak’s hiring and promotion decisions. See Bradley
Dep., ECF No. 331-3 at 27-29. For example, when asked whether
his analysis took into consideration a particular individual’s
work experience in assessing whether the selection process had
an adverse impact, Dr. Bradly admitted that it did not.
Accordingly, he acknowledged that it was “possible” that his
findings of disparate impact could be explained by a wholly
“legitimate factor” that played “a decisive role” in the
decision-maker’s employment selection. Id. at 28. For this
reason, too, plaintiffs’ statistical evidence does not
demonstrate commonality. See Garcia v. Jones, 444 F.3d 625, 635
(D.C. Cir. 2006) (district court acted within its discretion in
rejecting statistical analysis where the expert “failed to
account for variables that affected the analyses” and therefore
did not connect any alleged disparate impact to defendant’s
policy or practice); Gonzalez v. Brady, 136 F.R.D. 329, 333
(D.D.C. 1991) (because “plaintiffs’ statistics merely compared
the relative number of Hispanics and non-Hispanics at the
various grade levels” and did not “show the comparison between
similarly situated Hispanic and non-Hispanic employees (i.e.,
90
employees with similar qualifications and experience),” they
“offer[ed] little assistance in establishing the existence of
the aggrieved class”).
3. Plaintiffs’ Anecdotal Evidence Shows Variability,
Not Commonality
Plaintiffs also offer anecdotal evidence — in the form of
declarations from 101 putative class members — in support of
their contention that a common mode of discretionary
decisionmaking resulted in racial discrimination across each
alleged subclass. Pls.’ Class Cert. Mem., ECF No. 303 at 19-22,
31; id. Ex. 8, ECF No. 304-8.
To be sure, these declarations provide far too many
examples of very serious racial discrimination. For instance:
• Bryant Cox states that a white manager
called him a “nigger” on multiple
occasions, including in front of an Amtrak
EEO Officer and a supervisor. Decl. of
Bryant Cox, ECF No. 304-8 at 39, ¶ 11.
• Windell Greene explains that, in addition
to being subjected to racial epithets, he
once found “a rope noose about 6-7 inches
in diameter hanging from a beam” in a common
work area. Decl. of Windell Greene, ECF No.
304-8 at 80, ¶ 27.
• Betty Haymer states that, when she and other
African-American employees objected to
being assigned maintenance work outside on
a rainy day, the supervisor yelled at them
and called them a “[b]unch of niggers.”
Decl. of Betty Haymer, ECF No. 304-8 at 81,
¶ 17.
91
• Lena Johnson recounts that, “[b]etween 1980
and 1995, [her] white Supervisor, Bill
Lake, would use the word ‘nigger’ on a daily
base. For example, he would say to an
African-American employee, ‘Nigger, get
that machine started.’” Decl. of Lena
Johnson, ECF No. 304-8 at 126, ¶ 6.
• Alfred Felton recalls that, “[i]n about
1998, white employees hung a black doll from
a noose in the locker room. Later, the doll
was taken down and attached to the back of
a golf cart. [He] also observed a white
employee dragging a black doll behind his
scooter. On several occasions, [he] heard
white employees threaten to drag “Niggers”
behind the trains when they departed.”
Decl. of Alfred Felton, ECF No. 304-8 at
451, ¶ 16. 9
The use of deeply offensive racial epithets by Amtrak
supervisors almost certainly created a hostile work environment
for the individual employees subject to the abuse. See Ayissi–
Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C. Cir. 2013)
(suggesting that “the use of an unambiguously racial epithet
such as ‘nigger’ by a supervisor” could alone be sufficient to
establish a hostile work environment) (citation omitted).
The declarations do not, however, offer evidence that
Amtrak’s supervisors exercised their discretion in a uniform
manner. For one, the declarations demonstrate that, although
9 Although Amtrak objects to portions of Mr. Felton’s
declaration, it does not contest the paragraphs cited by the
Court. See Def.’s Mem. in Supp. of Mot. to Strike Decls. of Pls.
(“Def.’s Strike Decls. Mem.”), ECF No. 330-1 at 18-20 (objecting
to paragraphs 7, 10, and 17).
92
some supervisors exercised discretion in a discriminatory
manner, others did not. See, e.g, Decl. of Garner Willis, ECF
No. 304-8 at 297, ¶¶ 7-8 (attesting that one white manager
“screamed at [him] . . . . using racially charged language” but
that his white supervisor removed the manager from the crew and
sent him to training upon learning of the behavior). Moreover,
the declarations establish that members of plaintiffs’ putative
subclasses experienced discrimination based on a number of
different policies or practices. For example, plaintiffs submit
four declarations from Amtrak employees in the engineering craft
groups. As evidence of racial discrimination at Amtrak, one of
those employees, Marcus Brunswick, points to the fact that he
and another African-American applicant failed the “subjective
visual” portion of a test required for an electrical traction
position, whereas several white applicants took the test and
passed. Decl. of Marcus Brunswick, ECF No. 304-8 at 282, ¶ 6. 10
Mr. Brunswick also claims that it took him longer to be promoted
than his white peers, who “were promoted faster because of their
race and because they received training and mentorship from
white supervisors.” Id. ¶ 12. Another employee in the
10 Although Amtrak objects to portions of Mr. Brunswick’s
declaration, it does not contest the paragraphs cited by the
Court. See Def.’s Strike Decls. Mem., ECF No. 330-1 at 11-12
(objecting to paragraphs 9, 10, 20, and 23).
93
engineering craft group, Alfred Jones, states in his declaration
that a supervisor retaliated against him after he complained to
his union representative about the supervisor’s racist comments.
Decl. of Albert Jones, ECF No. 304-8 at 290, ¶¶ 6-8. 11
Specifically, Mr. Jones avers that his supervisor denied him
higher pay rates, asked him to complete additional work, and
eventually terminated him based on an insubordination charge.
Id. ¶¶ 8-11. Although Mr. Jones was eventually reinstated after
filing a claim for race discrimination, he continued to
experience retaliatory conduct in the form of lower overtime
pay, being forced to bid into lower-paying positions, and
unfavorable job assignments that should have been given to less-
senior white employees. Id. ¶¶ 14-18. As the declarations of Mr.
Brunswick and Mr. Jones demonstrate, even employees in the same
craft groups experienced discrimination in different ways at the
hands of different individuals. Accordingly, the declarations
suffer from the same defects as plaintiffs’ statistical evidence
11 Amtrak objects that Mr. Jones’ declaration, which states
that he was terminated as a result of an insubordination
charges, is directly contradicted by his deposition testimony in
which he explains that he was “taken out of service” as opposed
to terminated. See Def.’s Strike Decls. Mem., ECF No. 330-1 at
29. The Court finds that this inconsistency does not relate to a
material fact in the case and goes to the weight to be afforded
Mr. Jones’ testimony. Accordingly, the Court will not strike the
testimony at issue. See Ascom Hasler Mailing Sys. v. U.S. Postal
Serv., 815 F. Supp. 2d 148, 163 (D.D.C. 2011).
94
— i.e., they do not establish that the putative class members
are “victim[s] of one common discriminatory practice.” Dukes,
564 U.S. at 345.
4. Ms. Hightower’s Testimony Is Insufficient To Tie
Together The Claims Of Classes Spanning Sixteen
Years
Finally, plaintiffs argue that the testimony of Wanda
Hightower — Amtrak’s Vice President for Diversity from 1999 to
2001 — provides compelling evidence that supervisors received
“signals from top management that they did not have to submit to
investigations of discrimination and harassment or implement
recommendations remedial action.” Pls.’ Class Cert. Mem., ECF
No. 303 at 29. Ms. Hightower testified that her efforts to
ensure appropriate consequences were meted out for egregious
instances of racial discrimination were met with resistance,
that Amtrak’s Chief Executive Officer George Warrington asked
her to “slow the pace down” and suggested she stop making
“aggressive recommendations” with respect to discipline, and
that she was abruptly fired when she refused to comply with
those suggestions. See Hightower Dep., ECF No. 309-9 at 11-15,
18, 34-35.
Ms. Hightower’s testimony provides forceful evidence that,
at least for the period during which Ms. Hightower was employed
at Amtrak, Amtrak’s leadership — and, in particular, Mr.
Warrington — did not support Amtrak’s corporate policy
95
prohibiting racial discrimination. As compelling as Ms.
Hightower’s testimony is in this regard, it nonetheless fails to
tie together the many discretionary employment decisions to
which the putative class members were subject over the class
period. For one, the testimony of one former employee who worked
at Amtrak for less than two years does not reasonably raise an
inference that Amtrak “operated under a general policy of
discrimination” over the entire sixteen-year class period.
Moreover, even for the period during which Ms. Hightower was
employed at Amtrak, Ms. Hightower’s testimony does not show that
the disciplinary decisions of most supervisors at Amtrak were
discriminatory. According to plaintiffs’ experts, there were
24,136 charges for disciplinary charges over the 152-month
period that was analyzed. See Bradley/Fox Rep., ECF No. 304-1 at
29. Accordingly, during Ms. Hightower’s 22-month tenure,
approximately 3,500 disciplinary charges would have been brought
on average. Ms. Hightower testified, however, that there were
only twenty-five cases during her time at Amtrak where she “felt
that supervisors or managers had engaged in some kind of
discriminatory or retaliatory activity” that “was not adequately
addressed.” Hightower Dep., ECF No. 309-9 at 33. Thus, Ms.
Hightower’s testimony does not provide “significant proof” that
Amtrak operated under a general policy of discrimination. Dukes,
564 U.S. at 355.
96
The cases cited by plaintiffs in which courts have
certified employment-discrimination classes confirm the Court’s
conclusions. Each of those cases involved more tightly-knit
classes and concrete theories of discrimination based on common
employment practices or the decisions of a common supervisor.
For example, plaintiffs point to McReynolds v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 672 F.3d 482 (7th Cir. 2012), in
which the Seventh Circuit affirmed certification of a class of
700 financial brokers who alleged that their employer’s policies
had a disparate impact on African-American employees. See Pls.’
Reply in Supp. of Mot. for Class Cert., ECF No. 344 at 9.
Although the plaintiffs in that case also accused the defendant
of “delegate[ing] discretion over decisions that influence the
compensation of all the company’s 15,000 brokers,” plaintiffs
pointed to two specific employment policies that they claimed
led to the discriminatory impact. McReynolds, 672 F.3d at 488.
These company-wide policies provided the “glue” that held the
plaintiffs’ claims together because they purportedly explained
how the directors exercised their discretion in a common way
that had a discriminatory impact. Id. at 488-89.
Likewise, in Moore v. Napolitano, 926 F. Supp. 2d 8 (D.D.C.
2013), the court certified a class of current and former special
agents in the United States Secret Service alleging
discrimination in the Secret Service’s promotion practices. See
97
Pls.’ Suppl. Mem. in Supp. of Class Cert., ECF No. 370 at 11.
The plaintiffs there challenged the Secret Service’s use of the
Merit Promotion Program, which produced a numerical score for
each candidate that was used to make promotion decisions. Moore,
926 F. Supp. 2d at 12-13. Here, by contrast, plaintiffs have not
identified any selection policy that applies to all putative
class members across various job functions.
In short, plaintiffs have not identified a specific
employment practice applicable to all putative class members
that purportedly caused the alleged discrimination about which
plaintiffs complain. Moreover, plaintiffs’ evidence makes clear
that many putative class members suffered discrimination in a
variety of ways through the decisions of different individuals
in a wide range of contexts. “Such potential breadth of
experiences and claims among the putative class members is not
the mark of a class that meets the commonality requirement of
Rule 23(a).” Ross v. Lockheed Martin Corp., 267 F. Supp. 3d 174,
201 (D.D.C. 2017).
VI. SUMMARY JUDGMENT
Although plaintiffs’ claims are not amenable to class
treatment, the individual claims of the named plaintiffs
survive. The Court therefore proceeds to consider Amtrak’s
motion for partial summary judgment on plaintiffs’ disparate-
impact claims.
98
Summary judgment is appropriate when the moving party has
shown that there are no genuine issues of material fact and that
the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). A material fact is one that is capable of affecting
the outcome of the litigation. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A genuine issue exists where the
“evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Id. A court considering a motion for
summary judgment must draw all “justifiable inferences” from the
evidence in favor of the non-movant. Id. at 255.
To survive a motion for summary judgment, however, the non-
movant “must do more than simply show that there is some
metaphysical doubt as to the material facts”; instead, the
nonmoving party must come forward with “‘specific facts showing
that there is a genuine issue for trial.’” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986) (quoting Fed. R. Civ. P. 56(e)). Moreover, “although
summary judgment must be approached with special caution in
discrimination cases, a plaintiff is not relieved of his
obligation to support his allegations by affidavits or other
competent evidence showing that there is a genuine issue for
trial.” Adair v. Solis, 742 F. Supp. 2d 40, 50 (D.D.C.
2010) (quotation marks and alterations omitted).
99
Employment discrimination claims under Title VII may
proceed under both a “disparate treatment” and a “disparate
impact” theory. See Ross v. Lockheed Martin Corp., 267 F. Supp.
3d 175 (D.D.C. 2017) (citation omitted). A plaintiff alleging
disparate impact must show that an employer uses “a particular
employment practice that causes a disparate impact on the basis
of race, color, religion, sex, or national origin.” Ricci v.
DeStefano, 557 U.S. 557, 578 (2009); see also 42 U.S.C. § 2000e-
2(k)(1)(A) (plaintiff alleging disparate impact must demonstrate
that the employer “uses a particular employment practice that
causes a disparate impact on the basis of race,” at which point
the employer must show “that the challenged practice is job
related for the position in question and consistent with
business necessity” or adopt an “alternative practice” that has
less disparate impact but still meets the employer’s needs).
Although a plaintiff generally must identify a specific
employment practice that is the subject of the challenge, if the
plaintiff “can demonstrate to the court that the elements of
a[n] [employer’s] decisionmaking process are not capable of
separation for analysis, the decisionmaking process may be
analyzed as one employment practice.” 42 U.S.C. § 2000e—
2(k)(1)(B)(i).
Amtrak first asserts that it should be granted summary
judgment on plaintiffs’ disparate-impact claims because
100
plaintiffs have not identified any specific employment practice
in the fourth amended complaint or motion for class
certification that qualifies as a “particular employment
practice.” Def.’s Mem. in Supp. of Mot. for Summ. J. (“Def.’s
Summ. J. Mem.”), ECF No. 328-1 at 11-14. In response, plaintiffs
state that they “challenge the selection interview process,
ratings, rank-orderings, input from other managers, amorphous
decision-making, and the disqualifying discipline criterion” as
having an adverse impact on African-American employees and
applicants. Pls.’ Opp. to Mot. for Summ. J. (“Pls.’ Summ. J.
Opp.”), ECF No. 343 at 7. Plaintiffs claim that, aside from the
disqualifying discipline criteria, these practices are
components of Amtrak’s “overall selection process” and cannot be
separated for two reasons: (1) the practices are so “interwoven”
that no single practice is “determinative” of the disparate
outcomes; and (2) Amtrak failed to keep adequate records to
permit analysis of particular practices. Pls.’ Summ. J. Opp.,
ECF No. 343 at 8.
Amtrak asserts that both these arguments fail. First,
Amtrak contends that the “incapable-of-separation” exception
applies only “where common components of a uniform selection
process exist, but it is unreasonably difficult to isolate those
common components from each other.” Def.’s Reply in Supp. of
Mot. for Summ. J. Reply (“Def.’s Summ. J. Reply”), ECF No. 356
101
at 11. Amtrak further argues that plaintiffs have not met their
burden to show that the incapable-of-separation exception should
apply based on the paucity of data. Amtrak points to plaintiffs’
own arguments that Amtrak’s selection process is comprised of
five distinct steps, which suggests that Amtrak’s selection
process was, in fact, capable of separation. Def.’s Summ. J.
Mem., ECF No. 328-1 at 21-22.
Taking Amtrak’s second argument first, the Court agrees
that plaintiffs have not sufficiently shown that the various
components of Amtrak’s process for hiring or promoting employees
were not capable of being divided into smaller subsets related
to specific employment practices for purposes of a statistical
analysis. As an initial matter, although the parties used a
joint database to avoid an “intractable debate” over how to
merge Amtrak’s various sources of employment data, there does
not appear to be any serious dispute that the database alone did
not contain sufficient information to engage in a statistical
analysis of specific employment policies for disparate impact.
See Pls.’ Summ. J. Opp., ECF No. 343 at 13-14; Def.’s Summ. J.
Reply, ECF No. 356 at 16-17. 12 Even so, Amtrak maintained “job
12 Amtrak argues that that the joint database contained
sufficient data for plaintiffs to conduct a statistical analysis
with respect to a “particular job in a particular location where
the selection criteria and procedures were more likely to be
similar.” Def.’s Summ. J. Reply. ECF No. 356 at 20-23. The fact
that the data in the joint database could be sliced to analyze
102
files” that contained documents spanning the various stages of
the employment selection process for each individual. Pls.’
Summ. J. Opp., ECF No. 343 at 15; Deere Rep., ECF No. 331-5 at
21. Some of these files include applicant questionnaires, pre-
employment tests and surveys, interviewer report forms, and
interview questions. Deere Rep., ECF No. 331-5 at 21. As such,
the data from these job files could have been used to evaluate
the effect of a specific practice — for example, whether the use
of a pre-employment test or ratings forms increased the
likelihood that an African-American individual would not be
selected for the position.
Plaintiffs respond that these job files could not be used
to analyze different employment practices because the “contents
of each file were inconsistent and varied.” Pls.’ Summ. J. Opp.,
ECF No. 343 at 16 (providing examples of the inconsistency in
documents contained in each file). Nonetheless, plaintiffs have
not sufficiently shown that this information could not have
meaningfully been used to evaluate different employment
particular jobs by particular cities does not, however, mean
that plaintiffs cannot proceed under the incapable-of-separation
exception. The key question “is not whether the massive data can
be divided up into piles,” but rather, “whether the plaintiffs
demonstrated any resulting piles that might be formed do not
reveal particular employment practices that are capable of
separation for statistical analysis.” Pippen v. State, 854
N.W.2d 1, 25 (Iowa 2014).
103
practices. For example, plaintiffs do not offer any testimony
from their statistical experts that the files do not contain
adequate data to conduct a reliable analysis. Indeed,
plaintiffs’ statistical expert acknowledged that the racial
identity of thirty-five percent of the applicants in the
applicant flow data was “unknown,” but argued that, from a
methodological perspective, the missing information was not an
insurmountable obstacle to his analysis. See Expert Rebuttal
Rep. of Edwin L. Bradley, ECF No. 342-6 at 18. Dr. Bradley did
not provide any similar analysis or opinion with respect to the
purportedly missing job file data. Accordingly, the Court finds
that plaintiffs have failed to meet their burden to show that
Amtrak’s selection procedures are “not capable of separation for
analysis.”
Likewise, plaintiffs have not identified any specific
disciplinary practices that they claim led to a disparate
impact. Indeed, Dr. Bradley conceded that he did not attempt to
study particular forms of discipline used at Amtrak:
Q. So you can’t say anything based on your
discipline study about what might have caused
the disparate impact in the award of
disciplines to African-Americans?
A. That’s correct.
Q And you didn’t study disciplinary — any
particular disciplinary infraction to see if
maybe that type of infraction had a
104
discriminatory impact on African-Americans,
did you?
A. What do you mean by that?
Q. Well, you took all charges no matter what
kind of charge. You didn’t look at, well, this
charge involves absenteeism or this charge
involves tardiness or this charge involves
insubordination? You didn’t look at the
different types of charges, did you?
A. No, I did not.
Q. You had the data to look at those different
types of charges, didn’t you?
A. They did show the different types of
charges, that’s correct.
Q. Why didn’t you look at the different types
of charges?
A. I was interested in the disciplinary
process as a whole.
Bradley Dep., ECF No. 331-3 at 65. To survive summary judgment,
plaintiffs are “responsible for isolating and identifying the
specific employment practices that are allegedly responsible for
any observed statistical disparities.” Smith v. City of Jackson,
Miss., 544 U.S. 228, 241 (2005). This is because a “failure to
identify the specific practice being challenged is the sort of
omission that could result in employers being potentially liable
for the myriad of innocent causes that may lead to statistical
imbalances.” Id. (citation and internal quotation marks
omitted). Here, plaintiffs have failed to identify any specific
practice, and therefore, their disparate-impact claims must
105
fail. For all of these reasons, Amtrak’s motion for summary
judgment on plaintiffs’ disparate-impact claims is granted. 13
VII. CONCLUSION
For the foregoing reasons, the Court GRANTS Amtrak’s motion
to exclude Jay Finkelman, DENIES Amtrak’s motion to exclude
Thomas Roth, DENIES Amtrak’s motion to exclude Edwin Bradley and
Liesl Fox, GRANTS in part Amtrak’s motion to strike portions of
plaintiffs’ declarations, GRANTS in part and DENIES in part
Amtrak’s motion to strike plaintiffs’ reply brief, DENIES
plaintiffs’ motion for class certification, and GRANTS
defendant’s partial motion for summary judgment. Plaintiffs’
class claims are dismissed, as are plaintiffs’ disparate-impact
13 Amtrak also moves for summary judgment on the ground that
plaintiffs’ disparate-impact claims are not cognizable under 42
U.S.C. § 1981. See Def.’s Summ. J. Mem., ECF No. 328-1 at 10;
see also Gen. Bldg. Contractors Ass’n v. Penn., 458 U.S. 375,
391 (1982) (section 1981 “can be violated only by purposeful
discrimination”); Frazier v. Consol. Rail. Corp., 851 F.2d 1447,
1449 n.3 (D.C. Cir. 1988) (similar); McReynolds v. Sodexho
Marriott Servs., Inc., 349 F. Supp. 2d 1, 7 n.3 (D.D.C. 2004)
(“Defendant correctly argues that plaintiffs cannot bring a
disparate impact claim under 42 U.S.C. § 1981, since purposeful
discrimination is required under § 1981.”). Plaintiffs do not
offer any response to this argument, and thus concede it. In any
event, plaintiffs’ fourth amended complaint does not allege
disparate impact with respect to plaintiffs’ section 1981
claims. See Fourth Am. Compl., ECF No. 145 ¶ 619 (alleging that
Amtrak’s conduct has been “intentional, deliberate, willful, and
conducted in callous disregard of the rights of the named
Plaintiffs”).
106
claims under Title VII and Section 1981. An appropriate Order
accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
April 26, 2018
107
Campbell v. Natl Railroad Pass
Combined Opinion