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Arias v. Marriott International, Inc.

United States District Court, District of Columbia

March 29, 2018

ROSA ARIAS, Plaintiff,


          COLLEEN KOLLAR-KOTELLY United States District Judge

         Plaintiff Rosa Arias moves to certify a class of housekeepers employed by Defendant Marriott International, Inc. (“Marriott”) in its hotels in the District of Columbia. Pl.'s Mot. for Class Certification, ECF No. 69. Federal Rule of Civil Procedure 23 imposes various threshold requirements for class certification. While Plaintiff originally alleged several class-wide claims, following the voluntary dismissal of two claims and the Court's dismissal of several others, Plaintiff's surviving claims concern only her alleged termination by Defendant rather than issues affecting the putative class. Accordingly, Plaintiff fails each of Rule 23's requirements for class certification. Her claims are better resolved in individual litigation. Because the putative class has not been certified, Plaintiff's pending motion to appoint interim class counsel is now MOOT.

         Upon consideration of the briefing, [1] the relevant legal authorities, and the record as a whole, the Court DENIES Plaintiff's Motion for Class Certification, ECF No. 69, and DENIES as MOOT Plaintiff's Motion for Appointment of Harry T. Spikes, Sr. as Interim Class Counsel, ECF No. 76.[2]

         I. BACKGROUND

         A. Factual Background

         Because it is Plaintiff's burden to establish her satisfaction of the class certification requirements, e.g., In re Rail Freight Fuel Surcharge Antitrust Litigation-MDL No. 1869, 725 F.3d 244, 249 (D.C. Cir. 2013), and in the absence of discovery, the Court shall set forth such facts as Plaintiff has alleged, notwithstanding that Defendant's response to her Second Amended Complaint contests some of these allegations, see Answer and Affirmative Defenses to 2d Am. Compl., ECF No. 54.

         According to her Second Amended Complaint, Plaintiff is a Nicaraguan native whom Defendant has employed in its Housekeeping Department since 2003. Pl.'s 2d Am. Compl., ECF No. 31, ¶ 3. Plaintiff reports that her duties have included cleaning hotel rooms and bathrooms in Defendant's hotel, located in the Metro Center neighborhood of Washington, D.C. Id. ¶¶ 2-3; Mot. to Certify at 4. In the course of these duties, Plaintiff allegedly was expected to use certain cleaning chemicals requiring the use of personal protective equipment (“PPE”) that was not provided by Defendant. Pl.'s 2d Am. Compl., ECF No. 31, ¶¶ 3, 7. Plaintiff further alleges that the use of these chemicals without PPE resulted in her developing various medical ailments, including eye irritation, headaches, respiratory illness, and chest pains. Id. ¶ 4. In 2015, Defendant granted Plaintiff's request for four months of leave from her employment, through May 15, 2015, to receive medical treatment for these ailments. Id. ¶ 5.

         During her leave, Plaintiff allegedly gave deposition testimony on March 31, 2015, in a separate lawsuit against Defendant. Id. ¶ 7 (citing Sanchez v. Marriott International, Inc., Civil Action No. 14-1577 (ABJ) (D.D.C.)). Plaintiff asserts that notice of this testimony was given to Defendant. Id. Plaintiff's testimony concerned chemicals she used in the course of her employment and provided details about the way such chemicals were used in her work environment. See Id. ¶¶ 7-12. Based on portions of her deposition testimony included in Plaintiff's Second Amended Complaint, Plaintiff alleges that the chemicals were having negative health effects on her, that she and other employees reported such effects to a supervisor employed by Defendant, that Plaintiff was never notified that the chemicals she worked with could have a negative impact on her health, and that Defendant's chemical storage practices minimized any opportunity that might have been available to view any labeling on original bottles that contained health warnings. See id.

         Before her leave was scheduled to end, Plaintiff allegedly learned by telephone message from a representative of Defendant “that her employment was terminated and another person had taken her position.” Id. ¶ 14. Plaintiff claims that she was later told that her termination had been rescinded. Id. In July and August of 2015, Plaintiff allegedly communicated with Defendant concerning her request to return to work. Id. ¶¶ 15-16. When Defendant denied her request for a chemical-free work environment, she nevertheless agreed to return if PPE were made available, to which Defendant responded by affirming that PPE would be and always had been available to her and other employees. Id. While not specifically alleged by Plaintiff, and not material to resolution of the pending motions, the Court observes that Plaintiff apparently returned to work on September 20, 2015, and at least as of May 5, 2016, remained employed by Defendant. Mem. of Law in Supp. of Def. Marriott International, Inc.'s Mot. to Dismiss Pl.'s 2nd Am. Compl., ECF No. 33-1, at 3.

         B. Procedural History

         In June 2015, Plaintiff filed a complaint against Defendant in D.C. Superior Court, Civil Action No. 2015 CA 4324 B. [Corrected] Notice of Removal, ECF No. 2, at 1. On August 5, 2015, Defendant removed the case to the U.S. District Court for the District of Columbia on federal question jurisdictional grounds. Id. at 2-3. On April 21, 2016, Plaintiff filed a Second Amended Complaint with leave of the Court. Pl.'s 2d Am. Compl., ECF No. 31. Some ambiguity notwithstanding, the claims of the Second Amended Complaint may be summarized as follows: (1) discrimination based on race, national origin, and retaliation for a protected activity under 42 U.S.C. § 1981; (2) breach of contract in allegedly terminating Plaintiff's employment; (3) breach of implied covenant of good faith and fair dealing in allegedly terminating Plaintiff's employment in bad faith; (4) wrongful termination of at-will contract in violation of public policy and 42 U.S.C. § 1981, pled in the alternative to Counts Two and/or Three; (5) negligence and negligent misrepresentation of material facts, alleging that Defendant breached its duty of care through various employment actions relating to the chemicals used in the workplace; (6) aggravated assault through failure to provide PPE; and (7) fraudulent concealment of material fact concerning the health effects of chemicals used in the course of Plaintiff's employment.[3] See Id. Plaintiff alleges that the claims in at least part of Count One and in Counts Five through Seven are class-wide claims. See Id. (referring to class members only with respect to each of these claims, but doing so ambiguously as to scope in Count One); but see Opp'n to Mot. to Certify at 2-3 (arguing that “Class Action Allegations” section of Second Amended Complaint refers only to claims under 42 U.S.C. § 1981 and D.C. Code § 32-1101 et seq. (regarding occupational safety and health hazards)).

         On May 5, 2016, Defendant filed a Motion to Dismiss Plaintiff's Second Amended Complaint, ECF No. 33, which the parties subsequently briefed. On August 12, 2016, pursuant to an agreement between the parties, Plaintiff filed a notice voluntarily dismissing Count Five, containing the negligence and negligent misrepresentation claims, and Count Seven, containing, inter alia, the fraudulent concealment of material fact claim. Notice of Filing Def.'s Mot. for Sanction, ECF No. 40, at 1; Notice of Dismissal of Claims from Pl.'s 2nd Am. Compl. 1, ECF No. 40-1, at 1. On November 14, 2016, the Court granted in part and denied in part Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint. Order, ECF No. 52. The Court dismissed Count One's claims as to race and national origin discrimination, as well as Counts Four and Six in their entirety. Id. at 2; Mem. Op., ECF No. 53, at 6-7 n.6 (“Ms. Arias does not appear to be making an argument that she faced discrimination based on being from Nicragua [sic] separate and apart from discrimination based on race. Therefore, the Court will consider only the claim of discrimination based on race.”). Remaining are Plaintiff's claims under Count One for retaliation in violation of 42 U.S.C. § 1981, Count Two for breach of contract, and Count Three for breach of implied covenant of good faith and fair dealing. See Order, ECF No. 52, at 2.

         On August 15, 2017, Plaintiff filed the instant Motion for Class Certification, ECF No. 69. On August 24, 2017, Plaintiff filed her Motion for Appointment of Harry T. Spikes, Sr. as Interim Class Counsel, ECF No. 76. With the completion of briefing, each motion is now ripe for resolution.


         A. Class Certification

         “To certify a class for settlement, a court must consider whether the proposed class meets the requirements of Federal Rule of Civil Procedure 23.” Trombley v. Nat'l City Bank, 826 F.Supp.2d 179, 192 (D.D.C. 2011). The putative “class plaintiff has the burden of showing that the requirements of Rule 23(a) are met and that the class is maintainable pursuant to one of Rule 23(b)'s subdivisions.” Richards v. Delta Air Lines, Inc., 453 F.3d 525, 529 (D.C. Cir. 2006).

         1. Rule 23(a) Requirements

         Under Federal Rule 23(a), a member of a class may sue on behalf of the class if “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a). These four requirements are referred to as numerosity, commonality, typicality, and adequacy of representation.

         a. Numerosity

         Rule 23(a)'s numerosity requirement dictates that the class be so numerous that joinder of all members is impracticable. “There is no specific threshold that must be surpassed in order to satisfy the numerosity requirement, ” however “courts in this jurisdiction have observed that a class of at least forty members is sufficiently large to meet this requirement.” Taylor v. D.C. Water & Sewer Auth., 241 F.R.D. 33, 37 (D.D.C. 2007).

         b. Commonality

         The commonality requirement asks whether there are questions of law or fact common to the class. “The touchstone of the commonality inquiry is ‘the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.'” Coleman ex rel. Bunn v. District of Columbia, 306 F.R.D. 68, 82 (D.D.C. 2015) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)).

         c. Typicality

         The typicality requirement demands that the claims or defenses of the representative parties are typical of the claims or defenses of the class. Generally speaking, “[t]ypicality is . . . satisfied when the plaintiff's claims arise from the same course of conduct, series of events, or legal theories as the claims of other class members.” In re XM Satellite Radio Holdings Secs. Litig., 237 F.R.D. 13, 18 (D.D.C. 2006) (assessing precedent regarding typicality under Rule 23(a) as required by securities legislation). “The facts and claims of each class member do not have to be identical to support a finding of typicality; rather, typicality refers to the nature of the claims of the representative, not the individual characteristics of the plaintiff.” Radosti v. Envision EMI, LLC, 717 F.Supp.2d 37, 52 (D.D.C. 2010) (citation and internal quotation marks omitted). Accordingly, “if the named plaintiffs' claims are based on the same legal theory as the claims of the other class members, it will suffice to show that the named plaintiffs' injuries arise from the same course of conduct that gives rise to the other class members' claims.” Bynum v. District of Columbia, 214 F.R.D. 27, 35 (D.D.C. 2003).

         d. Adequacy of ...

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