United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY United States District Judge
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.
consideration of the briefing,  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.
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.
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.
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.
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.
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. 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
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,
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.
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).
Rule 23(a) Requirements
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.
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).
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)).
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).
Adequacy of ...