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Gerald Burton, et al v. District of Columbia

December 23, 2011


The opinion of the court was delivered by: Beryl A. Howell United States District Judge


Plaintiffs are a group of forty-four African-American current and former employees of the District of Columbia Fire and Emergency Medical Services Department ("D.C. Fire and EMS"). The plaintiffs seek to initiate a class action against D.C. Fire and EMS on behalf of themselves and all African-American firefighters and EMS employees who were disciplined or denied promotions from October 15, 2007 to the present. The plaintiffs allege that D.C. Fire and EMS subjected its African-American employees to race-based discrimination, including by creating a hostile work environment, disciplining African-American employees unfairly, and denying them promotions. Presently before the Court is the plaintiffs' motion for class certification or, in the alternative, for pre-certification discovery. For the reasons explained below, the Court will deny class certification at this time, but will permit the plaintiffs to pursue pre-certification discovery.


The plaintiffs filed this putative class action against the District of Columbia on October 15, 2010.*fn1 ECF No. 1. Ninety days later, on January 13, 2011, the plaintiffs filed a motion to certify the class.*fn2 ECF No. 4. This case was reassigned to the undersigned presiding judge on January 20, 2011. On February 15, 2011, the Court issued a Minute Order noting that over 120 days had passed since the filing of the Complaint in this action, but the Court had no record that any defendant had been served. The Court directed the plaintiffs to respond to the Minute Order by March 1, 2011 by filing proof of service or explaining why service had not yet been completed. On March 1, 2011, the plaintiffs filed proof of service and a response stating that the plaintiffs intended to move for leave to file an amended complaint. See ECF Nos. 6-10.

With leave of court and with the consent of the defendant, the plaintiffs amended their Complaint on April 7, 2011. Am. Compl., ECF No. 20. The Amended Complaint alleges that the defendant, the District of Columbia through D.C. Fire and EMS, discriminated against its African-American employees based on their race in violation of 42 U.S.C. § 1981 and 42 U.S.C. § 1983. Am. Compl. ¶ 1. Specifically, the plaintiffs allege that the defendants "meted out more severe punishments to Plaintiffs than non-African-American Firefighters and EMS employees, unfairly treated Plaintiffs, denied promotions from October 15, 2007 to the present, for which they were qualified and eligible, in order to promote non-African-American Firefighters and EMS employees, and subjected Plaintiffs to a race-based hostile work environment." Mem. in Supp. of Pls.' Am. Mot. for Class Cert., or Alternatively, Extension of the Deadline to Engage in Pre-Certification Discovery ("Pls.' Mem."), ECF No. 27, at 3. Since the factual allegations in the Amended Complaint, broadly speaking, describe three categories of discrimination -- unfair discipline, unequal promotion, and hostile work environment -- the Court will summarize the allegations for each of these categories of conduct separately below.

A. Unfair Discipline Allegations

The Amended Complaint relates several anecdotes of alleged unfair discipline of the plaintiffs. For example, the Amended Complaint states that "Lieutenant Charles Florence, who is African American, was wrongly found to have engaged in 'sexual harassment' on the basis of a single ill-considered remark and was forced to resign from the D.C. Fire and EMS Department after more than 26 years of service. In contrast, Sergeant James Clem, who is White, emailed a picture of his penis to an African American female Firefighter . . . and received only a demotion, which was coupled with a beneficial transfer to a high-profile position." Am. Compl. ¶¶ 41-42. In another allegation, the Amended Complaint alleges that Lieutenant Gerald Burton, an African-American, received a 60-hour suspension for violating Standard Operating Guidelines at a fire scene, but that "White employees, who violated Standard Operating Guidelines for far less compelling reasons than Lieutenant Burton, have received little or no discipline." Id. ¶¶ 31-33. The Amended Complaint details numerous other alleged disparities in discipline in different areas. For example, it states that "Craig Costello is an African American Firefighter and Paramedic who was suspended as a result of not passing his annual physical in September 2008; however, White employees were not suspended for failing to pass their physical examinations." Id. ¶ 53. Other areas of alleged disparate discipline relate to punishments for infractions such as off-duty citations for driving while intoxicated, failure to report arrests, and being absent without leave. See id. ¶¶ 58, 63, 68-69, 72. With respect to the various anecdotes of alleged unfairly harsh discipline of African-American employees, the Amended Complaint generally does not allege any facts about the process by which the disciplinary acts came about, which supervisors recommended or imposed the discipline, and whether the same processes or supervisors were implicated in determining the discipline for the White employees alleged to have received more lenient treatment for comparable infractions. See generally id.

B. Unequal Promotion Allegations

The Amended Complaint alleges that the defendant's practices regarding three promotional examinations were discriminatory. For the 2006 promotion exam, the Amended Complaint alleges that nine plaintiffs were denied promotions when "the District of Columbia deliberately allowed the 2006 Promotion List to expire in order to deny [the plaintiffs] a promotion and promote White employees instead."*fn3 Id. ¶ 82; see also id. ¶¶ 80-88. For the 2008 promotion exam, the Amended Complaint alleges that two plaintiffs believe that a switch in the defendant's contractors for the exam was part of "a plan and a scheme to rapidly promote White employees" and that these employees were not promoted as "a direct result of this scheme." Id. ¶¶ 89-90. For the 2010 promotion exam, fourteen plaintiffs allege that they "would have placed higher on the 2010 promotion list had it not been for the unlawful violation of the Special Order sequestering the test administrators and unlawful coaching given to White members of the D.C. Fire and EMS Department."*fn4 Id. ¶¶ 91-104.

C. Hostile Work Environment Allegations

The Amended Complaint contains additional allegations of a racially hostile work environment that do not relate to discipline or promotions. For example, the Amended Complaint states that "African American Firefighter Kwame Agyeman . . . was subjected to racial slurs and differential treatment . . . [He] also witnesses racial statements . . . made about non-White District of Columbia residents and disparaging comments about the condition in which they lived. Firefighter Agyeman also received unequal work assignments as compared to White employees, and he was denied equal training opportunities." Id. ¶ 64; see also, e.g., id. ¶ 67 ("African American Victoria Nance, a Paramedic with the D.C. Fire and EMS Department, experienced a hostile work environment . . . in the form of racial epithets, mistreatment, derogatory comments, unfavorable assignments, and discouragement from pursuing opportunities. . ."); id. ¶¶ 77-78 (same allegations regarding Cranston Lee and Earl Gardner).

D. Class Allegations and Claims for Relief

Based upon the allegations summarized above, the plaintiffs seek to pursue a class action on behalf of "[t]he Class . . . comprised of all current and former African American Firefighters and EMS employees at the D.C. Fire and EMS Department who experienced a hostile work environment, were subjected to unfair termination, to discipline unequal to that of their similarly situated White colleagues, were discriminatorily denied promotions that were awarded to their White colleagues, or were otherwise subjected to discrimination within the applicable statute of limitations."*fn5 Id. ¶ 16.

The Amended Complaint alleges five causes of action. Count I alleges the defendant subjected the plaintiffs to a hostile work environment based on race in violation of 42 U.S.C. § 1981. Id. ¶¶ 105-106. Counts II and III allege discriminatory punishment in violation of 42 U.S.C §§ 1981 and 1983, respectively. Id. ¶¶ 107-110. Finally, Counts IV and V allege unequal promotion in violation of 42 U.S.C §§ 1981 and 1983, respectively. Id. ¶¶ 111-114. The plaintiffs seek declaratory and injunctive relief; record-clearing and reinstatement for employees subject to discriminatory discipline; retroactive promotion of all African-American employees denied promotions from the 2006, 2008, ...

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