Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Little v. Washington Metropolitan Area Transit Authority

United States District Court, District of Columbia

March 31, 2017

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

          OPINION

          ROSEMARY M. COLLYER United States District Judge.

         Plaintiffs 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 counsel.

         The 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.

         The 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 denied.

         I. BACKGROUND

         WMATA 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.

         Plaintiffs 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 that:

[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.).

         WMATA 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 discrimination.”).

         From 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]__.

         Starting 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 12-13.

         A. Policy 7.2.3

         Policy 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.[1] 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__.

         Policy 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, WMATA0002232-33.

         Section 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 disclosures;
(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.

         The 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.

         Appendix 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.

         Appendix 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. Id.

         Appendix 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.

         Policy 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.

         Applicants 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.__.

         MetroAccess 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.__.

         B. Plaintiffs' Claims of Discriminatory Impact

         Plaintiffs 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.

         Plaintiffs 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 information.

         As a result of these features, Plaintiffs argue that Policy 7.2.3 has a disparate impact on African-American candidates.[2] 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.

         C. Plaintiffs' Proposed Classes

         Plaintiffs' 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 Check Policy.
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 Check Policy.

Id. . ¶ 41.

         D. Plaintiffs' Proposed Named Plaintiffs

         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. ¶ 75.
. 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. ¶ 59.[3]

         Based 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 Appendix F.

         II. LEGAL STANDARD

         A. Admissibility of Experts

         Federal 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 methods; and
(d) the expert has reliably applied the principles and methods to the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.