United States District Court, District of Columbia
EMMET G. SULLIVAN, District Judge.
Plaintiffs bring this lawsuit on behalf of a putative class of African-American and Native-American secretaries and clerical employees currently or formerly employed by the Board of Governors of the Federal Reserve System ("Federal Reserve Board") who allege that they have suffered racial discrimination. The parties to this case have engaged in a prolonged period of class discovery, during which the plaintiffs largely refused to respond to written discovery requests and declined entirely to appear for depositions. As a result, the Court compelled their participation in discovery.
After class discovery closed, plaintiffs asserted that the defendant had wrongly withheld certain information. The Court rejected these arguments in 2012, when plaintiffs filed a motion to compel and failed to identify any discovery request to which the defendant did not properly respond. Plaintiffs repeatedly sought reconsideration of that Order. Each time, they made arguments that the Court had previously rejected or that could have been raised in the original motion to compel. Plaintiffs' motion for class certification contains yet more requests for reconsideration of these discovery rulings.
Once those arguments are cleared away, little remains of plaintiffs' motion, which cited not a single legal decision related to Federal Rule of Civil Procedure 23. Indeed, plaintiffs presented almost no evidence or argument regarding Rule 23. The Court has examined the record and found nothing to indicate that plaintiffs' injuries stem from any common action, policy, or practice of the Federal Reserve Board, and the testimony of each plaintiff confirms that their claims are unique and individualized. Accordingly, upon consideration of the motion for class certification, the response and reply thereto, the applicable law, and the entire record, the Court DENIES plaintiffs' motion. The Court also considers the plaintiffs' motion to supplement the record, the response and reply thereto, and DENIES that motion.
A. The Federal Reserve Board's Personnel Practices.
The Federal Reserve Board is an independent federal agency that is organized into ten divisions and five offices. See Declaration of Christine M. Fields ("Fields Decl."), ECF No. 213-2 ¶¶ 4-5, 7. Each division is managed by a Division Director, who is "afforded considerable autonomy in regard to the structure, staffing and operation of their Division." Id. ¶ 6. Accordingly, "personnel practices in regard to such things as performance evaluations, promotions, and selections for vacant positions can and do vary significantly from division to division." Id. This applies to a variety of practices:
Supervision: The manner in which secretaries and clerical staff are supervised varies widely. "In some divisions, one manager is responsible for supervision of all secretaries and clerical workers... [i]n others, supervision of secretaries and clerical workers is divided up among several or many managers." Id. ¶ 9.
Performance Evaluations: All Federal Reserve Board employees are reviewed annually, but "[e]ach Division Director determines the evaluation format as well as the structure [of the evaluation]." Id. ¶¶ 10-11. In some, a clerical worker may receive an evaluation that is the result of input from each individual that worker supports; in others, a single individual may complete the evaluation. See id. ¶ 11.
Salary and Cash Awards: Federal Reserve Board employees are compensated with a salary, which may be increased by merit increases. See id. ¶ 12. Employees may also be given cash awards "at the discretion of their respective Division Director." Id .; see also id. ¶ 13 ("In some divisions, the Division Director may tie these awards to... performance ratings while in other divisions the Division Director may earmark cash award funds to reward successful completion of specific projects.").
Promotions: Promotion decisions are also delegated to the individual Division Director. See id. ¶ 16. "Employees... are not promoted on any fixed schedule but rather are promoted based on the performance criteria set by the division, the needs of the division and the individualized assessment of the secretarial and clerical employee's skills and performance." Id.
Although the preceding personnel decisions are largely within the discretion of lower-level managers, the Federal Reserve Board has a general Equal Employment Opportunity policy, which provides that "the Board prohibits discrimination in employment on the basis of race, color, religion, sex, national origin, age, disability, or genetic information, and promotes the full realization of equal employment opportunity... through a continuing affirmative program." Id. ¶ 8.
B. The Plaintiffs and Their Claims.
Of the sixteen plaintiffs who brought this lawsuit, fourteen remain in the case. They are each secretaries or clerical employees currently or formerly employed by the Federal Reserve Board. See Fourth Am. Compl., ECF No. 127 ¶ 5. All are African-American, except for Linda Proctor, who is a Native American. See id. ¶¶ 5, 44. The plaintiffs propose to bring a class challenge to the defendant's allegedly discriminatory treatment of African-American and Native-American secretaries and clerical employees. Plaintiffs claim that the class has experienced discrimination in five areas: salary, cash awards, promotions, performance reviews, and career-transition agreements. Plaintiffs never tie these allegations to any common cause, however, and each plaintiff's experience differs substantially. No plaintiff appears to assert discrimination in connection with all five practices, and many admit to having no evidence that they were treated unfavorably in connection with one or more of the challenged practices. All but Linda Proctor either did not receive a career-transition agreement or did not allege discrimination in connection with one. Nine plaintiffs testified that most or all of their performance reviews were fair. See Adams Dep. at 56:9-11; Cohen Dep. at 80:2-5; Dorey Dep. at 62:8-63:19; Ellis Dep. at 303:21-304:3; Hill Dep. 227:19-228:8; Logan Dep. at 229:10-14; Matthews Dep. at 113:5-12; Deposition of Linda Proctor ("Proctor Dep."), ECF No. 213-1 at 57:22-58:3; Williams Dep. at 18:11-18. Five plaintiffs testified that they did not allege discrimination in connection with salary increases, or that they could not identify any Caucasian employee who was paid more. See Cohen Dep. at 77:11-14, 118:8-11; Dorey Dep. at 49:8-10; Hill Dep. at 78:13-16; Matthews Dep. at 87:15-22; McGhee Dep. at 98:22-99:3. With respect to cash awards, six plaintiffs were unsure if anyone had received higher awards than they had. See Adams Dep. at 49:24-50:1; Cohen Dep. at 78:5-9; Dorey Dep. at 49:5-7; Matthews Dep. at 98:5-7; McGhee Dep. at 69:21-70:6; Terrell Dep. at 84:15-18. Finally, many plaintiffs testified that they were regularly promoted, including one who was promoted into a management position, another who was promoted to the highest secretarial position in her department, and a third who never applied for a promotion. See Artis Dep. at 129:18-21; Ellis Dep. at 216:17-217:8; Hardy-Barnes Dep. at 85:2-7; Hill Dep. at 344:2-22; Williams Dep. at 33:3-12.
Plaintiffs also provide no evidence to show that their claims of individual discrimination stem from a common source. The record contains excerpts of the plaintiffs' depositions, which confirm that decisions related to the challenged practices are devoted to the discretion of dozens, if not hundreds, of low-level supervisors, who act in a largely subjective manner. See, e.g., Artis Dep. at 158:12-19 (decisions were "subjective amongst the mangers"; "it all depended on what manager you worked for"). For example, testimony revealed that the process for making decisions regarding cash awards varied substantially. See Hill Dep. at 270:7-16 (each Division "makes their own choice" regarding cash awards); Carter Dep. at 70:19-71:6 (in the Audit Review Section of the Bank Operations Division, cash awards are "very rare"); Ellis Dep. at 208:16 (in the Legal Division, "everybody gets cash awards"). Nor is there evidence that all supervisors act in a uniform manner. Many plaintiffs stated that some of their supervisors discriminated against them, but that many did not.
C. The History of This Lawsuit.
This case has its roots in a lawsuit that was filed in 1996. See Artis v. Greenspan, No. 96-2105 (D.D.C. filed Sept. 11, 1996). In that case, a group of African-American secretaries employed by the Legal Division of the Federal Reserve Board alleged that they had suffered racial discrimination. The district court dismissed that case for failure to exhaust administrative remedies and the D.C. Circuit affirmed. See Artis v. Greenspan, 158 F.3d 1301 (D.C. Cir. 1998). In the wake of that dismissal, plaintiffs filed this case.
The Federal Reserve Board quickly moved to dismiss for failure to exhaust administrative remedies. In light of factual disputes regarding administrative counseling sessions that were relevant to that motion, this Court found it "appropriate to permit plaintiffs to conduct... limited... discovery" on the topic. Artis v. Greenspan, 223 F.Supp.2d 149, 155 (D.D.C. 2002). After contentious discovery, the defendant renewed its motion to dismiss. See Second Mot. to Dismiss, ECF No. 40.
On January 31, 2007, this Court granted the defendant's motion. See Artis v. Greenspan, 474 F.Supp.2d 16 (D.D.C. 2007). The Court denied plaintiffs' motion for reconsideration of that decision on March 2, 2009. See Artis v. Bernanke, 256 F.R.D. 4 (D.D.C. 2009). Plaintiffs appealed these Orders and the D.C. Circuit reversed. See Artis v. Bernanke, 630 F.3d 1031 (D.C. Cir. 2011). After the Circuit's Mandate issued, the parties submitted proposed schedules for further proceedings and this Court issued a Scheduling Order. See Scheduling Order, ECF No. 95. That Order divided the case into three phrases, the first of which was class certification. Id. at 2. The Court scheduled class discovery to last until July 31, 2012, and defined it to include "any discovery that is relevant under Fed.R.Civ.P. 26, to class certification issues arising under Fed.R.Civ.P. 23." Id. at 2, 3.
D. The Class Discovery Period.
During class discovery, the plaintiffs largely failed to respond to the defendant's discovery requests and refused entirely to appear for properly noticed depositions. Plaintiffs also "did not notice any depositions and, specifically, did not seek to take a Rule 30(b)(6) deposition." Order, ECF No. 184 at 2. Plaintiffs did submit three sets of written discovery requests to the defendant, however. The Federal Reserve Board provided written responses to each set, and raised various objections to many of plaintiffs' requests. See Def.'s Responses to Pls.' First Set of Written Discovery, ECF No. 212-4; Def.'s Responses to Pls.' Second Set of Written Discovery, ECF No. 212-5; Def.'s Response to Pls.' Third Set of Written Discovery, ECF No. 212-6. Defendant also conducted a rolling document production, which culminated in the production of personnel data from the years 1988-2011. See Letter, ECF No. 128-6 at 2.
Both parties approached the close of class discovery dissatisfied. On July 27, 2012, the defendant moved to compel the plaintiffs to provide full written responses to discovery requests and to appear for depositions. See Mot. to Compel, ECF No. 120. On August 17, 2012, plaintiffs moved to compel the defendant to provide additional personnel data and to hold an informal conference regarding its data, but they identified no discovery request to which defendant had not properly responded. See Pls.' Mot. to Compel, ECF No. 123. The Court addressed these motions during a hearing on October 10, 2012, which was summarized in a subsequent Order:
[T]he Court granted defendant's motion to compel plaintiffs' depositions and other discovery requests with which plaintiffs did not comply. The Court denied plaintiffs' cross-motion to compel, finding that plaintiffs had not properly requested the information that they alleged had been withheld. With respect to plaintiffs' arguments regarding a "conference" with certain employees of defendant, the Court found that plaintiffs had not properly noticed the deposition of those employees. The Court noted that plaintiffs had not served a 30(b)(6) notice of deposition, which would have been a possible avenue for obtaining such information.
Order, ECF No. 184 at 2-3; see also Order, ECF No. 139 (memorializing the Court's October 10, 2012 oral rulings). Even during the October 10, 2012 hearing, plaintiffs "did not attempt to identify any discovery requests to ...