The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge
In this case Charles Taylor alleges that the District of Columbia Water and Sewer Authority ("WASA") discriminated against him and other WASA African American employees in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. ("Title VII"), and Section 1981 of the Civil Rights Act of 1871, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981 ("1991 Act"). In addition to his own claims, Taylor seeks to prosecute claims on behalf of a class of WASA African American employees. Before the court is WASA's motion to dismiss Taylor's class claims. WASA argues that because Taylor seeks compensatory damages and trial by jury in addition to injunctive relief, he cannot, as a matter of law, satisfy the requirements for class certification set forth in Federal Rule of Civil Procedure 23(b) ("Rule 23(b)" or "23(b)"). Upon consideration of WASA's motion, the opposition thereto, and the record of the case, the court concludes that the motion to dismiss should be denied.
Taylor seeks to prosecute this action on behalf of a plaintiff class consisting of all African American employees and applicants who sought and were denied positions or career ladder promotions at WASA from October 1996 through December 2000. Taylor alleges that after WASA became an independent authority in 1996 and ceased to be bound by District of Columbia personnel regulations and civil service protections, it instituted an "at-will" employment system without uniform personnel policies. Taylor alleges that this system allows management to hire and promote candidates based on word of mouth and to manipulate candidates' scores in favor of those handpicked in advance. As a result of this system, Taylor alleges, African American employees are denied the opportunity to advance to the same level and at the same rate as similarly situated white employees.
Specifically, Taylor claims that African American employees are hired at the lowest level of the career ladder and are required to serve as long as five years for career ladder promotions, while similarly situated white employees are hired at higher levels and regularly receive promotions in less than five years. Taylor also claims that equally qualified African American employees are often passed over for promotions in favor of white employees of the Washington Suburban Sanitation Commission and other outside agencies. In addition, Taylor alleges that African Americans encounter a "glass ceiling" at WASA: although they make up approximately seventy-five percent of the agency's employees, they are "underrepresented" at higher pay grade levels.
With respect to his individual claims, Taylor asserts that he applied for several promotions during his tenure at WASA, but was passed over despite demonstrating the required qualifications. Taylor has been employed by WASA as a civil engineering technician for the past twelve years. The civil engineering career ladder ranges from grade DS-2 through grade DS-11; Taylor's current grade is DS-8. Advancement to a higher grade within the series requires that the employee serve the required time in-grade, demonstrate the ability to perform at the next grade, and receive the recommendation of his or her supervisors. According to WASA, "ability" is determined by the employee's supervisors, and includes dedication to the job, getting along well with co-workers and clients, and technical aptitude. Taylor alleges that in June 2000, his supervisor at the time, an African American male, wrote a letter recommending Taylor for a promotion to grade DS-9 on the basis that Taylor had demonstrated the above qualifications. Nonetheless, the Director of the Department of Engineering and Technical Services, a white male, denied Taylor the promotion.
Taylor filed a race discrimination charge with the Equal Employment Opportunity Commission ("EEOC") on September 19, 2000, and filed the present action within ninety days of receiving a right to sue letter from the EEOC. *fn1
Taylor alleges disparate treatment and disparate impact claims under Title VII and requests declaratory and injunctive relief as to both claims. Taylor also requests compensatory damages and trial by jury on his disparate treatment claim as provided for under the 1991 Act. Before addressing whether Taylor's disparate treatment claim qualifies for class certification under Rule 23(b), it is helpful to review the disparate treatment cause of action and the effect the 1991 Act had upon it.
In his disparate treatment claim, Taylor alleges that WASA engaged in a "pattern or practice" of discriminating against African American employees. As explained by the Supreme Court in International Board of Teamsters v. United States, 431 U.S. 324 (1977) ("Teamsters"), the "pattern or practice" disparate treatment theory focuses on group-wide allegations of intentional discrimination. *fn2 To establish a pattern or practice claim, the plaintiffs must prove that intentionally discriminatory practices were the defendant's "standard operating procedure," not merely sporadic or isolated occurrences. Id. at 336. *fn3
Suits alleging pattern or practice claims are typically divided into two phases, a liability phase and a damages phase. See id. at 360-62; Berger v. Iron Workers Reinforced Rodmen, 170 F.3d 1111, 1124 (D.C. Cir. 1999). In the first phase, the plaintiffs must establish through a common method of proof that the employer is liable to the class for the pattern or practice of discrimination. See Teamsters, 431 U.S. at 360; Berger, 170 F.3d at 1124. This is usually done with a combination of statistical evidence regarding the defendant's treatment of the class as a whole and anecdotal testimony from individual class members regarding specific acts of discrimination. See Teamsters, 431 U.S. at 336; Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 158 (2nd Cir. 2001).
If the plaintiffs succeed in establishing liability in the first phase, the court may order class-wide injunctive and declaratory relief. Teamsters, 431 U.S. at 336. If the plaintiffs also seek individual monetary relief, they proceed to the second phase, called a "Teamsters hearing." See Hartman v. Duffy, 88 F.3d 1232, 1235 n.2 (D.C. Cir. 1996). In a Teamsters hearing, each plaintiff enjoys the presumption that any adverse employment action taken against him or her by the defendant was due to the pattern or practice of discrimination established in the liability phase; therefore, the plaintiff's burden at the damages phase is simply to show that such an adverse action took place. See Teamsters, 431 U.S. at 362. The burden of persuasion then shifts to the defendant to show that there was a legitimate, non-discriminatory reason for the adverse action. See id., Hartman, 88 F.3d at 1234 n.2. If the defendant ...