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Marable v. Dist. Hospital Partners

August 31, 2006


The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge


Plaintiffs, six Black former employees of George Washington University Hospital ("GWUH"), bring the instant action as a result of their termination on November 15, 1998.*fn1 Plaintiffs' employment ended when GWUH eliminated the position previously held by each plaintiff-Nursing Assistant-and replaced it with a new position, Multi-skilled Technician ("MST"). All Nursing Assistants were invited to apply to become MSTs if they satisfied a number of different requirements. Plaintiffs now challenge a specific component of these requirements-a three-part screening test-pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1991, 42 U.S.C. § 1981a. Plaintiffs assert these claims on their own behalf as well as on behalf of a putative class of all Black applicants for the MST position that were not hired as a result of their failure to pass GWUH's screening examinations. Before the court is plaintiffs' motion for class certification (Dkt. #31). Upon consideration of the motion, the opposition thereto, and the record of this case, the court concludes that plaintiffs' motion must be denied.


In November 1998, GWUH eliminated the Nursing Assistant position and replaced it with the MST position. According to GWUH, this reorganization was precipitated by a desire to "develop and implement new patient care models that improve[d] operational efficiency and patient satisfaction." Pls.' Opp'n, Ex. B ¶ 3 (Aff. of Karen Frazier.) The MST position was designed to have "substantially greater responsibility and higher pay" than that which it replaced; while Nursing Assistants were expected to attend to tasks primarily related to patient transport and "daily living activities," i.e., patient ambulation, monitoring vital signs, making beds, and bathing patients, GWUH envisioned that the MSTs' duties would encompass "highly technical functions related to procedures and treatments, and diagnostic testing and specimen collection." Id. ¶ 5--6.

GWUH established two hiring procedures for the newly created MST position: one for displaced Nursing Assistants, and to the extent that GWUH's hiring needs could not by satisfied by this pool of internal candidates, a second for external applicants.

Former Nursing Assistants who wished to become MSTs were required to first pass a battery of three screening tests: one assessing arithmetic skills, another reading comprehension, and the final writing ability.*fn2 The former Nursing Assistants were permitted to take each of these three screening exams twice. In addition, those former employees that initially failed were offered free tutoring to prepare them to retake the exam. Former Nursing Assistants that passed each of these three screening tests were then admitted into a training course that lasted ten weeks and was comprised of ten distinct units. These units ranged in length from one day to several days, each concluding with a written examination. As with the screening exams, the participants in the training program were permitted to take each exam twice. The former Nursing Assistants that passed each of these ten examinations were offered employment as a MST.*fn3

External candidates were subject to a different, more streamlined, hiring process. After soliciting applications for those positions not filled by former Nursing Assistants, GWUH selected candidates that it believed had the requisite education and experience and then permitted them to take the three screening tests administered to the internal applicants. Unlike the displaced Nursing Assistants, external applicants were only provided one opportunity to pass each exam and GWUH did not offer any assistance in preparing for the exams. The external applicants that passed the exams were not guaranteed to receive a position nor where they admitted into a training program. Instead, they were evaluated against the other external applicants that had passed the exam.

Plaintiffs, all former Nursing Assistants, challenge GWUH's use of these screening exams as a selection device. Plaintiffs insist that the examination had a disparate impact on Black applicants, and as a result, ask the court for various forms of relief intended to address the alleged discriminatory effect of the examination.


A. Plaintiffs' Proposed Class

Plaintiffs seek to certify a class of all Black applicants for the MST position at GWUH-including applicants formerly employed as Nursing Assistants by GWUH and external candidates-who were not hired due to their failure to pass the screening tests. This construction of plaintiffs' class represents a departure from that which is outlined in their complaint. Plaintiffs originally envisioned a much broader class that included "(a) those who failed the reading, writing, and math screening test; (b) those who failed the ten-part training course; and (c) those who refused to take the screening test at all." Pls.' Reply at 8; see also Second Am. Compl. ¶¶ 49--50. Following a lengthy discovery period and time to digest the arguments of opposing counsel, plaintiffs have since narrowed the scope of the class that they wish to certify.

As the party moving for class certification, plaintiffs bear the burden of establishing that the requirements for class certification, as set forth in Rule 23 of the Federal Rules of Civil Procedure, have been satisfied. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997). Plaintiffs, therefore, must show that they satisfy all four prerequisites of Rule 23(a). Hartman v. Duffey, 19 F.3d 1459, 1468 (D.C. Cir. 1994); In re Vitamins Antitrust Litig., 209 F.R.D. 251, 256 (D.D.C. 2002). These requirements are: (1) that the class is so numerous that joinder of all members is impracticable; (2) that there are questions of law or fact common to the class; (3) that the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) that the representative parties will fairly and adequately protect the interests of the class. FED. R. CIV. P. 23(a). In addition, plaintiffs must also demonstrate that the class falls within at least one of the three categories set forth in Rule 23(b). A district court exercises broad discretion in deciding whether plaintiffs have carried their burden. Hartman, 19 F.3d at 1471 (citing Bermudez v. U.S. Dep't of Agric., 490 F.2d 718, 725 (D.C. Cir. 1973)).

The question of class certification is a preliminary question distinct from the merits of the case. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974). As the Supreme Court pointed out in Eisen, when "determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met." Id. at 178 (internal quotation omitted). While courts may not 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, the court may consider matters beyond the pleadings to ascertain whether the asserted claims or defenses are susceptible to resolution on a class-wide basis. See McCarthy v. Kleindienst, 741 F.2d 1406, 1419 n.8 (D.C. Cir. 1984).

Having set forth the proper analytical framework, the court now turns to its application of Rule 23's requirements to the case at hand. The court will address first commonality-the most fiercely contested of the certification requirements-given that failure to meet ...

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