United States District Court, District of Columbia
ROSEMARY M. COLLYER United States District Judge.
complain that a criminal background check, used by the
Washington Metropolitan Area Transit Authority (WMATA) to
screen candidates and employees, is facially neutral but has
a disparate impact on African Americans. WMATA's Policy
7.2.3 governs how and when individuals with criminal
convictions can obtain or continue employment with WMATA and
its contractors and subcontractors. Plaintiffs seek to
represent one or more classes of African-American candidates
and employees who were disqualified or removed from
employment by Policy 7.2.3 in alleged violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq. and the District of Columbia Human Rights
Act (DCHRA), D.C. Code § 2.1404.01 et seq.
After class discovery, Plaintiffs now seek leave to file an
amended complaint, class certification of the amended
classes, and appointment of Plaintiffs' counsel as class
motion to amend the complaint will be denied without
prejudice. The motion for class certification will be granted
in part and denied in part. The Court will certify three
classes, separating candidates and employees based on the
Appendix of Policy 7.2.3 that applied to them.
parties also filed motions to exclude the other's
experts. The motion to exclude Dr. Farber will be granted in
part and denied in part. The motion to exclude Dr. Bendick
will be granted. The motions to exclude Dr. Stixrud's
initial report and declaration will be granted in part and
denied in part. The motion to exclude Dr. Siskin will be
was created by an Interstate Compact among Washington, D.C.,
Virginia and Maryland, and approved by Congress, to be the
primary public transit agency for the D.C. metropolitan
region. Cert. Opp., Ex. 20 [Dkt. 137-2] at WMATA0002330.
WMATA operates the region's Metrorail system (86
stations and 105 miles of track); Metrobus system
(135 lines and 12, 216 stops); and MetroAccess
paratransit service for the disabled. See id.;
see also Cert. Opp. [Dkt. 137] at 10. “The
Compact confers broad powers on WMATA to ‘[c]reate and
abolish offices, employments and positions . . . provide for
the qualification, appointment, [and] removal . . . of its .
. . employees, [and] [e]stablish, in its discretion, a
personnel system based on merit and fitness.'”
Beebe v. WMATA, 129 F.3d 1283, 1287 (D.C. Cir. 1997)
(quoting D.C. Code Ann. §§ 1-2431(12)(g) and (h)).
WMATA argues that it is, thus, generally “immune from
attacks upon its discretionary decisions related to its
establishment of qualifications for employees, ”
although it recognizes that it is also subject to Title VII.
Cert. Opp. at 10 n.6.
allege that the screening criteria in Policy 7.2.3 are
“overly broad, unjustifiably rigid and unduly
harsh.” First Amended Complaint [Dkt. 84] ¶¶
1-3, 8-15, 48-102, 103-04, 126-28 (FAC). Plaintiffs complain
[Policy 7.2.3] disqualifies many job applicants and employees
based on criminal history that is not related to the job at
issue or occurred so long ago-in some cases, 20 or 30 years
in the past-that it is irrelevant to any fair determination
of employee honesty, reliability, or safety.
Id. ¶ 1. To clarify Plaintiffs' intentions,
their pending Motion for Leave to File a Second Amended
Complaint acknowledges that Plaintiffs' expert found no
statistical basis to include “WMATA employees who may
have been deterred from applying for internal job openings
and/or employees who may have been deterred from taking
medical or personal leave” or “persons directly
employed and subsequently terminated by WMATA.” Mot.
for Leave to File Second Amended Complaint [Dkt. 117] ¶
7 (SAC Mot.).
argues that it adopted Policy 7.2.3 as a business necessity.
Cert. Opp. at 11-13. The argument goes to the merits of
Plaintiffs' Complaint, not to their motion for class
certification. Additionally, WMATA argues that the actual
makeup of its employee pool demonstrates that no
discrimination occurs. See id. at 10-11.
Specifically, African Americans constitute seventy-five
percent (75%) of WMATA's (employee and contractor)
workforce of more than 12, 000 individuals. See id.,
Exs. 21-22 [Dkt. 137-2]. African Americans hold 96% of
WMATA's bus and rail operator positions. And these
numbers exceed the proportion of African Americans in the
metropolitan area: 52% of D.C. residents identify as African
American; 65% of residents in Prince George's County
identify as African American; and the percentages of persons
who identify as African American in Montgomery County,
Maryland, and the metropolitan counties in Virginia range
from between 5 and 22%. See id., Ex. 24 [Dkt. 137-3]
at WMATA0002370-2390. While these employment figures are not
contested by Plaintiffs, they contend that Policy 7.2.3 bars
employment of African Americans more than other races.
See Connecticut v. Teal, 457 U.S. 440, 453-54, 455
(1982) (“Congress never intended to give an employer
license to discriminate against some employees on the basis
of race or sex merely because he favorably treats other
members of the employees' group.”); Furnco
Constr. Corp. v. Waters, 438 U.S. 567, 579 (1978)
(“A racially balanced work force cannot immunize an
employer from liability for specific acts of
2009 to 2012, WMATA followed an inconsistently-applied
criminal background check policy, which was promulgated
through a Staff Notice. See Mot. for Cert, Ex. 7,
__. The 2009 policy divided positions into public-facing and
non-public-facing. For all positions, an individual was
disqualified if s/he had a felony or misdemeanor conviction
of a crime against persons, a sex crime, or a crime against
society. For crimes against property or controlled substances
offenses, individuals were either disqualified or permitted
to have up to two convictions depending on whether the crime
was a misdemeanor or a felony or if it was committed more
than five or more than ten years ago. See Mot. for
Cert., Ex. 6 [Dkt. 124-2]__.
in late 2009, WMATA's Director of Human Resources, Dr.
Amy began__ to develop a policy that used criminal background
checks to screen applicants for employment. Cert. Opp. at
7.2.3 was adopted in December 2011 and took effect on
February 23, 2012. Mot. for Cert., Ex. 2, Policy 7.2.3 [Dkt.
124-2] at WMATA0002227. Policy 7.2.3 first applied only to
WMATA candidates for employment (those to whom a conditional
offer of employment had been extended, pending screening) and
WMATA badge contractor candidates who would work on WMATA
property for WMATA contractors, as well as employees of WMATA
and badge contractors who were seeking to return to
employment after a lengthy absence. Badge contractors are
WMATA's independent contractors. Employees of such
contractors require WMATA badges to gain unescorted access to
WMATA property. See Cert. Opp., 31.__. An Appendix
was added to Policy 7.2.3 on January 1, 2013, which extended
the Policy to MetroAccess candidates for employment and
employees. See id., Ex.53__.
7.2.3 indicates that its purpose is to "ensure that
candidates and employees have provided accurate, complete,
and truthful information relating to former employment,
experience, education, and relevant criminal and/or financial
background information." Policy 7.2.3 at WMATA0002227.
Policy 7.2.3 applies to all external candidates and to
employees under specific circumstances. External candidates
are subject to Policy 7.2.3 prior to a final offer of
employment. Id. Internal candidates, i.e..
former employees separated from employment, are subject to
Policy 7.2.3 if (1) represented and reinstated or considered
for reinstatement after a grievance process or (2) not
represented and considered for reinstatement after an
employee dispute resolution process. Id. Employees
are subject to Policy 7.2.3 when (1) they are "under
consideration for a fiduciary position or a position that
requires unrestricted access to the general public”;
(2) they are “under consideration for return to
duty” after a “non-work status for a period of 90
calendar days or longer”; or (3) “reasonable
suspicion exists” about information which “could
impact the employee from performing the duties of the current
position held.” Id. at WMATA0002227-28,
5.03 of Policy 7.2.3 further outlines “[c]ircumstances
that can result in the initiation of a reasonable suspicion
screening, ” including but not limited to:
(1) Sources of information that can be corroborated that an
employee has engaged in conduct that is inconsistent with
Metro regulations and/or has been arrested and/or convicted
of a crime, i.e., information received from two or more
independent sources, testimony, eyewitness statements
(oral/written), videotape evidence, and/or protected
(2) Information that has been independently discovered during
the course of an internal or external investigation that
suggests an employee has engaged in misconduct that is
inconsistent with Metro regulations and/or has been arrested
or convicted of a crime;
(3) Disclosure and disposition of an arrest and/or conviction
by an employee to management to verify/validate the
information supplied by the employee; and/or
(4) For positions that require a valid commercial or
operator's driving license, information that can be
corroborated that an employee has been charged with driving
infractions that can result or has resulted in revocation or
suspension of licensure.
Id. at WMATA0002232-33.
background screening includes information on an
individual's arrests, credit report, criminal
convictions, driving record, education, employment, and
professional licenses and certificates. Id. at
WMATA0002228. From the beginning, Policy 7.2.3 has included
three appendices tied to different categories of jobs: (1)
jobs requiring unrestricted access to the general public; (2)
fiduciary positions; and (3) all other positions.
Id. at WMATA0002229. Each appendix lists a number of
criminal offenses and whether a felony or misdemeanor
conviction on a particular offense is permanently
disqualifying or, in some instances, one conviction in that
category is permissible in the last five or ten years.
See, e.g., id. at WMATA0002235.
A covers positions requiring access to the general public and
lists disqualifying offenses as those crimes against persons
and property, sex crimes, controlled substances offenses,
societal offenses, and traffic offenses, including
“Criminal Mischief.” Id. The traffic
offenses are only “[a]pplicable to positions that
require [a] valid . . . [l]icense.” Id. A
felony or misdemeanor conviction of
“Kidnapping/Abduction/Unlawful Restraint” will
permanently disqualify an applicant. However, while a felony
conviction of “Possession of Controlled/Illegal
Substances” is permanently disqualifying, one
misdemeanor conviction in the last five years is permitted.
Id. A majority of the listed offenses are
permanently disqualifying. Id.
B covers fiduciary positions and includes all the offenses
listed in Appendix A except “Criminal Mischief”;
it also adds financial crimes. Id. at WMATA0002236.
A larger number of offenses are permanently disqualifying in
Appendix B and a single conviction most often must be older
than in Appendix A to permit hire. Id. For example,
an applicant can only have one misdemeanor conviction of
“Possession of Controlled/Illegal Substances” in
the last ten years to be eligible for a fiduciary position,
rather than five years for public access positions.
C covers all other positions, except MetroAccess, which could
include landscapers as well as metro-track repair persons.
Id. at WMATA0002238. Appendix C includes all the
offenses listed in Appendix A, except “Criminal
Mischief.” Id. at WMATA0002238. Fewer offenses
in Appendix C are permanently disqualifying than in Appendix
A or B, and where a single conviction is permitted, the time
period being reviewed is often shorter than in Appendix A.
Id. For example, neither a felony nor a misdemeanor
conviction for “Possession of Controlled/Illegal
Substances” is permanently disqualifying in Appendix C;
and it is not disqualifying to have one felony conviction in
the last ten years and one misdemeanor conviction in the last
five years. Id.
7.2.3 was extended to MetroAccess on January 1, 2013 with the
addition of Appendix F. See Cert. Opp., Ex. 2,
Revised Policy 7.2.3 [Dkt. 137-2] at WMATA0002429. Appendix F
includes all of the same offenses listed in Appendix B, but
adds “Criminal Mischief.” Id. Generally,
Appendix F has fewer permanently disqualifying offenses and
the time period for which a single conviction is permitted is
often shorter than in the other Appendices.
for positions with WMATA and badge contractors undergo
initial screening and interviews. Applicants become
“candidates” after completing the pre-employment
phase, including the “pre-employment assessment and
testing, interview and  receiv[ing] a contingent offer of
employment.” __Candidates' names are forwarded to
First Choice Background Screening (First Choice), an outside
contractor, to conduct the background check as required by
Policy 7.2.3. __If First Choice locates a disqualifying
conviction, it mails a letter to the candidate explaining the
results and stating that s/he has ten days to dispute the
results. After ten days without a response from the
candidate, First Choice sends a letter rescinding the
contingent offer of employment. __If a candidate responds to
First Choice in a timely manner, s/he may only contest the
accuracy of the background check. A candidate may not ask
WMATA to make an exception to Policy 7.2.3.__.
candidates follow the same process as WMATA and badge
contractors, except for two unique characteristics. First,
MetroAccess candidates undergo a criminal background check
__and a record check if applicable, prior to having their
names sent to First Choice. Mot. for Cert., Ex. 17, __Second,
MetroAccess have a more formal process to appeal the First
Choice results directly to a board of WMATA
officials.__However the appeal is still limited to whether
the conviction is disqualifying, not whether Policy 7.2.3
should be applied.__.
Plaintiffs' Claims of Discriminatory Impact
claim that Policy 7.2.3 is “overly broad and
unnecessarily restrictive because it excludes workers on the
basis of convictions that are irrelevant to any fair
determination of employee honesty, reliability, or
safety.” Second Amended Complaint [Dkt. 117-1] ¶
108 (SAC). Specifically, Plaintiffs criticize the portions of
Policy 7.2.3 that treat a single conviction from particular
categories of crimes as disqualifying, no matter how old.
argue that WMATA's failure to connect Policy 7.2.3 to the
requirements of its positions has caused a discriminatory
impact. Plaintiffs point to a Guidance from the EEOC on the
Consideration of Arrest and Conviction Records in Employment
Decisions, as amended on April 25, 2012. See Mot.
for Cert, Ex. 37, EEOC Guidance [Dkt. 124-4]. The Guidance
recommends that employers using a criminal background check
policy should consider three factors: (1) the nature and
gravity of the offense; (2) the time since the conviction
and/or completion of a sentence; and (3) the nature of the
job sought. Id. at 11. The Guidance also recommends
an individualized assessment that allows an applicant to
explain the circumstances of a prior offense and to argue
that it should not result in a refusal to hire. Id.
at 18. Plaintiffs argue that Policy 7.2.3 does not permit
individualized assessment and prohibits any explanation or
argument from the candidate about the circumstances of an
offense. First Choice has no discretion in applying Policy
7.2.3 and candidates have no opportunity to appeal other than
to argue that the background check contains inaccurate
result of these features, Plaintiffs argue that Policy 7.2.3
has a disparate impact on African-American
candidates. Drs. Farber and Siskin, two of
Plaintiffs' experts, have opined that for each category
of candidates (WMATA, badge contractors, and MetroAccess),
African Americans failed the criminal background check of
Policy 7.2.3 at a higher rate than whites and non-African
Americans. Plaintiffs argue that the impact is a product of
the racial disparities in criminal charges and convictions
between African Americans and individuals of other races in
the criminal justice system.
Plaintiffs' Proposed Classes
proposed class definition would include “all
African-American persons (excluding persons directly employed
and subsequently terminated by WMATA) who, since February 23,
2012, have been terminated or otherwise permanently separated
from their positions, suspended with or without pay, and/or
denied employment with WMATA or any third party contractor or
subcontractor as a result of WMATA's Criminal Background
Check Policy.” SAC ¶ 40. The proposed class is
also divided into three “subclasses” as follows:
WMATA Candidate Subclass: All
African-American persons who, since February 23, 2012, have
been suspended with or without pay, and/or denied employment
with WMATA as a result of WMATA's Criminal Background
MetroAccess Contractor Applicant Subclass:
All African-American persons who, since January 1, 2013, have
been terminated or otherwise permanently separated from their
positions, suspended with or without pay, denied the ability
to work under a WMATA contract, and/or denied employment with
any MetroAccess contractor as a result of WMATA's
Criminal Background Check Policy.
Badge Contractor Subclass: All
African-American persons who, since February 23, 2012, have
been terminated or otherwise permanently separated from their
positions, suspended with or without pay, denied a contractor
badge necessary to access WMATA property, denied the ability
to work under a WMATA contract, denied the ability to work at
or on WMATA property, and/or denied employment with a Badge
Contractor as a result of WMATA's Criminal Background
Id. . ¶ 41.
Plaintiffs' Proposed Named Plaintiffs
identify ten potential named Plaintiffs to represent the
proposed classes, see Id. ¶¶ 20, 53-107,
but do not indicate which proposed subclass each named
Plaintiff would represent. Plaintiffs make the following
allegations regarding the named Plaintiffs:
. Sidney Davis “is a 69-year-old African-American man
who is currently employed as a bus operator by WMATA.”
Id. ¶ 93. Mr. Davis fears termination if he
“takes leave for more than ninety (90) days”
because WMATA may use that leave to subject him to Policy
7.2.3, which would disqualify him for the bus operator
position due to a 1972 conviction, which was disclosed to
WMATA when he was initially hired in 2003. Id. .
¶¶ 94-95, 97, 99.
. Erick Little “is a 47-year-old African-American
man” who “received a contingent offer of
employment for a position as a Bus Operator with WMATA,
” which “was rescinded three weeks later due to
the results of his criminal background check.”
Id. ¶¶ 53-54.
. Timothy McClough “is a 57-year-old African-American
man” who was terminated from his badge contractor
position with a WMATA landscaper “based on a
22-year-old drug-related conviction, despite his successful
work as a landscape and custodian for WMATA for over six
years prior to his firing” Id. ¶ 63.
. Leon McKenzie “is a 52-year-old
African-American man” who was “disqualified for a
job as a bus driver at WMATA based on a drug-related
conviction from 1995” Id. ¶ 80.
. Louia McKenzie “is a 47-year-old
African-American man” who was “denied a position
as a MetroAccess operator at First Transit . . . based on
convictions more than 20 years old.” Id.
¶ 87. Mr. McKenzie had previously been employed by MV
Transportation, an earlier WMATA contractor, but was released
when that contractor lost its contract with WMATA.
Id. . ¶ 88.
. Leroy Quarles “is a 53-year-old
African-American man” who was “fired from his job
at Diamond[, a MetroAccess contractor, ] as a WMATA
MetroAccess driver/operator based on a 25-year-old conviction
for assault and robbery . . ., despite his successful work at
MetroAccess for over three years prior to his firing.”
Id. ¶ 70. Diamond attempted to appeal the
application of Policy 7.2.3 to Mr. Quarles, but was
ultimately unsuccessful and Mr. Quarles was terminated.
Id. . ¶ 73.
. Fitzgerald Stoney “is a 62-year-old
African-American man” who was “denied a job as a
mechanic technician for a WMATA contractor based on
convictions that are decades old.” Id. ¶
. Gerald Tucker “is a 35-year-old
African-American man” who was “denied
reinstatement by WMATA for his job as a train operator based
on a nine-year-old misdemeanor weapons charge . . ., despite
his successful work as a WMATA bus and train operator for
over five years prior to the denial of reinstatement.”
Id. ¶ 66.
. Marcello Virgil “is a 45-year-old
African-American man” who was “fired from his job
as a custodian with a WMATA contractor based on a
drug-related conviction that was 15 years old, even though he
disclosed the conviction before he started work.”
Id. ¶ 100.
. Lawrence Whitted “is a 58-year-old
African-American man” who was terminated from his
position with “Diamond as a WMATA MetroAccess
driver/operator based on a 24-year-old drug-related
conviction, despite his successful work at MetroAccess for
over five years prior to his firing.” Id.
on these allegations, the Court notes which Appendix likely
applied to each proposed class representative, to the extent
it is evident. Messrs. Little, Tucker, Leon McKenzie, Davis,
and Virgil allege they applied for and were not hired for
positions covered by Appendix A, that is, positions with
access to the general public. Messrs. Stoney and McClough
appear to have either applied and not been hired for, or
fired from, a position covered by Appendix C, that is, a
position without access to the general public or involving
fiduciary/financial responsibilities. Messrs.Whitted, Leroy
Quarles, and McKenzie allege they applied and were not hired
for positions with MetroAccess contractors covered by
Admissibility of Experts
Rule of Evidence 701 governs opinion testimony by lay
witnesses, who may testify only as to opinions that are
“(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's
testimony or to determining a fact in issue; and (c) not
based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.” Fed.R.Evid.
701. However, expert witnesses testify based on specialized
knowledge and can express opinions. As Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
(d) the expert has reliably applied the principles and
methods to the ...