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Little v. Washington Metropolitan Area Transit Authority

United States District Court, D. Columbia.

April 23, 2015

ERICK LITTLE, et al., Plaintiffs,
v.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, et al., Defendants

For ERICK LITTLE, Plaintiff: Dennis A. Corkery, Matthew K. Handley, LEAD ATTORNEYS, WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS & URBAN AFFAIRS, Washington, DC; Thomas Dallas McSorley, LEAD ATTORNEY, Brandie N. Weddle, John Arak Freedman, ARNOLD & PORTER LLP, Washington, DC; Natasha Korgaonkar, Rachel M. Kleinman, ReNika C. Moore, PRO HAC VICE, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York, NY.

For LAWRENCE WHITTED, TIMOTHY McCLOUGH, GERALD TUCKER, LEROY QUARLES, FITZGERALD STONEY, MARCELLO VIRGIL, LEON McKENZIE, LOUIA McKENZIE, On behalf of themselves and all others similarly situated, Plaintiffs: Dennis A. Corkery, Matthew K. Handley, LEAD ATTORNEYS, WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS & URBAN AFFAIRS, Washington, DC; Thomas Dallas McSorley, LEAD ATTORNEY, Brandie N. Weddle, ARNOLD & PORTER LLP, Washington, DC; Natasha Korgaonkar, Rachel M. Kleinman, ReNika C. Moore, PRO HAC VICE, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York, NY.

GALEN PENDERGRASS, 15cv98, Plaintiff, Pro se, Temple Hills, MD.

For WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant: Gerard Joseph Stief, LEAD ATTORNEY, WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Washington, DC;

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Harvey A. Levin, Kathleen Elizabeth Kraft, LEAD ATTORNEYS, THOMPSON COBURN, LLP, Washington, DC; Charles M. Poplstein, Tabitha G. Davisson, PRO HAC VICE, Robert J. Wagner, THOMPSON COBURN LLP, St. Louis, MO.

For DIAMOND TRANSPORTATION SERVICES, INC., Defendant: Michael N. Petkovich, LEAD ATTORNEY, Amanda Leigh Scott Vaccaro, JACKSON LEWIS LLP, Reston, VA.

For EXECUTIVE PERSONNEL SERVICES, INC., Defendant: Nat Peter Calamis, LEAD ATTORNEY, Matthew D. Berkowitz, CARR MALONEY PC, Washington, DC.

For FIRST TRANSIT, INC., Defendant: Richard William Black, LEAD ATTORNEY, LITTLER MENDELSON, P.C., Washington, DC; William Simmons, PRO HAC VICE, LITTLER MENDELSON, P.C., Philadelphia, PA.

OPINION

ROSEMARY M. COLLYER, United States District Judge.

Defendants Washington Metropolitan Area Transit Authority (WMATA), Diamond Transportation (Diamond), and Executive Personnel Services, Inc. (EPSI) have moved to strike the class allegations brought by Plaintiffs Erick Little, Lawrence Whitted, Timothy McClough, Gerald Tucker, Leroy Quarles, Fitzgerald Stoney, Leon McKenzie, Louia McKenzie, and Marcello Virgil (collectively, Plaintiffs).[1] For the reasons set forth below, Defendants' motions will

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be denied.

I. FACTS

Plaintiffs filed a class action lawsuit on July 30, 2014, seeking relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Fair Credit Reporting Act, 15 U.S.C. § 1681, and the District of Columbia Human Rights Act, D.C. Code § 2-1401 et seq. Compl. [Dkt. 1]. Plaintiffs challenge WMATA's background check policy, which disqualifies from employment individuals with a criminal history. They argue that the policy disproportionately excludes African-American job applicants and employees because arrest and conviction rates in Washington, D.C. are higher for African Americans. Id. ¶ ¶ 1, 16. The proposed classes " consist of all terminated employees, employees deterred from applying for internal job openings, employees deterred from taking medical or personal leave, and applicants denied employment based on WMATA's Criminal Background Check Policy." Id. ¶ 37.

Plaintiffs sued WMATA and its contractors, Diamond, EPSI, and First Transit (the Contractor Defendants), which currently serve or at one time served as staffing agencies for WMATA, referring employees to work as MetroAccess drivers or operators, or janitors and

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landscapers in WMATA's administrative office buildings. Id. ¶ ¶ 20, 22, 24. WMATA " requires all of its contractors, including Diamond, EPSI, and First Transit, to utilize the [background check] policy in hiring, promoting, and terminating employees." Id. ¶ 15. The Contractor Defendants moved to dismiss on various grounds, including that Plaintiffs lacked standing to pursue claims against them and that they were not responsible for WMATA's policy. See Diamond Mot. to Dismiss [Dkt. 16]; First Transit Mot. to Dismiss [Dkt. 25]; EPSI Mot. to Dismiss [Dkt. 44].

While Diamond and First Transit's motions to dismiss were pending,[2] Plaintiffs sought to schedule a Rule 26(f) conference; Defendants objected, asserting their belief that a Rule 26(f) conference was not yet " practicable," Fed.R.Civ.P. 26(f)(1), and that in any event, the parties were not required to meet and confer until after the Court issued a scheduling order. See Weddle Decl., Exs. A-M [Dkt. 67-13].

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On October 17, 2014, Plaintiffs requested a telephone conference seeking a ruling on whether discovery should proceed and Defendants should be required to participate in a Rule 26(f) conference notwithstanding the motions to dismiss. See Notice of Request for a Telephonic Conference [Dkt. 38]. The Court held a telephone conference on October 22, 2014, after which it issued a Minute Order directing that:

[P]ursuant to the telephone conference held on October 22, 2014, all discovery shall be stayed pending decision on the motions to dismiss of Defendant Diamond Transportation Services and First Transit. It is further ordered that, within 14 days of a decision on the motions to dismiss, the parties shall file a joint ...

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