The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiffs Janet Howard, Tanya Ward Jordan, and Joyce Megginson have brought this civil action against Carlos M. Gutierrez, the Secretary of the United States Department of Commerce ("DOC" or "Department"), asserting employment-discrimination claims individually and on behalf of a putative class of African American, non-supervisory DOC employees. Before the Court is the Department's renewed motion to dismiss all claims and to strike class allegations. For the reasons explained herein, the Court denies the motion to dismiss the lead plaintiffs' individual claims, but grants the motion to strike the class allegations because plaintiffs have failed timely to move for class certification.
The central claim in this case, brought on behalf of the lead plaintiffs and the putative class, is that the Department has violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (2000), by using overly subjective performance-appraisal criteria that result in a disparate impact on African American DOC employees with respect to promotions and promotion-related opportunities. Am. Compl. ¶¶ 183-193. Plaintiffs' amended complaint describes the allegedly subjective nature of DOC's performance appraisal system and presents statistical evidence purporting to demonstrate the disparate impact of the system on African Americans. Id. ¶¶ 109-122. The complaint also includes allegations as to the effect that DOC's evaluation system has had on the lead plaintiffs. Id. ¶¶ 41-61 (Howard); 62-73 (Megginson); 74-83, 89-96 (Ward Jordan).
Plaintiffs filed this action on October 5, 2005, and the Department responded with its first motion to dismiss and to strike class allegations on March 17, 2006. On June 8, 2006, the same day that they filed their opposition to DOC's motion, plaintiffs moved to amend the complaint. The Court, "in accordance with the provisions of Rule 15(a) of the Federal Rules of Civil Procedure permitting an amended pleading once without leave of court when no responsive pleading has been served," ordered plaintiffs to file the amended complaint forthwith and denied their motion to amend as moot. Minute Order, Howard v. Gutierrez, No. 05-cv-1968 (D.D.C. June 13, 2006) (emphasis added). The Court also terminated the Department's first motion to dismiss and entered a briefing schedule for a renewed motion to dismiss. Id.; Minute Order, Howard v. Gutierrez, No. 05-cv-1968 (D.D.C. June 22, 2006).
On June 23, 2006, plaintiffs filed a motion for an extension of time to move for class certification. As of that date, some 261 days after filing their complaint, they had not yet moved for class certification. The Department opposed the motion and the parties submitted briefing on the issue. Subsequently, the Court granted in part and denied in part plaintiffs' motion, ordering
that plaintiffs' obligation under Local Civil Rule 23.1(b) to file a motion for class certification is stayed as of this date, pending further order of the Court. The Court grants this motion in the interest of efficiency in light of the fact that defendant has filed a motion to dismiss that, according to defendant, "if granted, would resolve this case" and thereby eliminate the need to address class certification. See Def.'s Opp'n to Mot. for Enlargement at 1. This order is without prejudice to, and expresses no view on, the merits of (1) any potential objection that defendants may raise (or have raised) regarding plaintiffs' failure to move for class certification within ninety days of filing the initial complaint in this action . . . .
Minute Order, Howard v. Gutierrez, No. 05-cv-1968 (D.D.C. Sept. 1, 2006) (emphasis added). Accordingly, a motion for class certification has never been filed in this action.
This lawsuit represents one part in a series of administrative and judicial actions brought by the three lead plaintiffs. The resolution of DOC's motion requires the Court to consider the allegations and procedural history of some of these other actions, which are described below.
Janet Howard is an African American who has been employed at DOC in the Bureau of Export Administration since 1983. Am. Compl. ¶¶ 16, 41. It is undisputed that Howard has filed twenty-one administrative complaints against the Department. See Pls.' Opp'n at 12; Def.'s Ex. Y (Decl. of Kathryn H. Anderson ("Anderson Decl.") ¶ 5). One of these was a formal EEO class complaint, submitted on February 22, 1995, id. ¶ 5, and described in further detail later in this opinion. For purposes of this motion, it unnecessary to review the individual histories of Howard's other administrative complaints.
Tanya Ward Jordan is an African American who began working at DOC in 1987. Am. Compl. ¶ 34. In this action she is asserting both an individual disparate-impact claim under Title VII and a disability-discrimination claim under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-796 (2000). Am. Compl. ¶¶ 183-98. In support of her Rehabilitation Act claim, Ward Jordan alleges that DOC denied her request for reasonable accommodations for her disabilities, which include respiratory problems and occupational stress. Id. ¶ 195. In 2003, Ward Jordan was transferred from the Office of Executive Budgeting and Assistance Management to the Office of Budget. Id. ¶ 82. Prior to the job transfer, Ward Jordan worked in an office equipped with a window and thermostat; however, Ward Jordan's post-transfer office was allegedly poorly lit and inadequately ventilated. Id. ¶ 84-85. DOC allegedly denied Ward Jordan's request to move to one of several, vacant offices that had windows, thermostats, and better ventilation. Id. ¶ 86, 88.
Ward Jordan filed a previous lawsuit against DOC in this Court in 2004. See First Am. Compl., Jordan v. Evans, No. 04-cv-356 (D.D.C. Apr. 13, 2004) ("2004 Compl.") [Def.'s Ex. AA]. The 2004 lawsuit included disability-discrimination allegations that are identical to the allegations asserted in the action now before the Court. Compare 2004 Compl. ¶ 8, with Am. Compl. ¶¶ 82-88. Among the causes of action asserted in the 2004 lawsuit were claims of employment discrimination in violation of Title VII and the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131-12165 (2000). 2004 Compl. ¶¶ 10-17. The 2004 complaint did not, however, assert a cause of action under the Rehabilitation Act.
On December 3, 2004, Judge Leon dismissed Ward Jordan's Title VII claims from the 2004 lawsuit for failure to exhaust administrative remedies. See Mem. Op. & Order at 24, Jordan v. Evans, No. 04-cv-356 (D.D.C. Dec. 3, 2004) [Def.'s Ex. BB]. In the same order, Judge Leon denied Ward Jordan's motion to amend her complaint to include a claim under the Rehabilitation Act. Id. at 26. The district court later explained that "[a]lthough plaintiff moved to amend [the first amended] complaint to add a cause of action under the Rehabilitation Act, the Court denied that motion because plaintiff's claim would be equally without merit under the Rehabilitation Act due to her failure to exhaust her administrative remedies." Jordan v. Evans, 404 F. Supp. 2d 28, 30 (D.D.C. 2005) [Def.'s Ex. CC]. Then, in August 2005, Judge Leon dismissed the remainder of the case, including the ADA claims, with prejudice. Id. at 30-31. The D.C. Circuit affirmed by summary order. See Jordan v. Gutierrez, No. 05-5381 (D.C. Cir. Mar. 13, 2006) ("[T]he district court did not err in denying appellant's motion to amend her complaint to add a claim for relief under the Rehabilitation Act, because she had not exhausted that claim."); id. ("The district court properly dismissed appellant's Title VII claims for ...