United States District Court, District of Columbia
G. Sullivan, United States District Judge
- seventy-one African-American current or former employees or
applicants for employment at defendant National Railroad
Passenger Corporation (“Amtrak”) - allege that
Amtrak engaged in racial discrimination in its hiring,
promotion, and disciplinary practices and created a hostile
work environment. Plaintiffs bring this lawsuit on behalf of
themselves and more than 11, 000 African-American unionized
Amtrak employees, former employees, and applicants for
employment at Amtrak.
before the Court are plaintiffs' motion for class
certification, Amtrak's motions to exclude a number of
plaintiffs' experts, Amtrak's motion to strike
portions of the declarations filed by plaintiffs in support
of class certification, Amtrak's motion to strike
portions of plaintiffs' reply in support of their motion
for class certification, and Amtrak's motion for partial
summary judgement. As explained more fully below, because
plaintiffs' class definitions make membership in
plaintiffs' proposed class contingent on individualized
merits determinations, and because plaintiffs have failed to
meet their burden to establish that the claims of all class
members are susceptible to common proof, plaintiffs'
motion for class certification is DENIED. In
addition, Amtrak's motion to exclude Jay Finkelman's
expert report and testimony is GRANTED,
Amtrak's motion to exclude Thomas Roth's expert
report and testimony is DENIED, Amtrak's
motion to exclude Edwin Bradley and Liesl Fox's expert
report and testimony is DENIED, Amtrak's
motion to strike portions of plaintiffs' declarations is
GRANTED in part, Amtrak's motion to
strike portions of plaintiffs' reply brief is
GRANTED in part and DENIED in part, and
Amtrak's partial motion for summary judgment is
I of this opinion, the Court sets forth the procedural
history of this litigation. Part II sets forth factual
background regarding Amtrak's structure, hiring and
promotions decisions, disciplinary system, and work
environment. In Parts III and IV, the Court analyzes the
admissibility of various experts and other evidence offered
in support of plaintiffs' motion for class certification.
Part V discusses whether class certification is warranted in
this case and, finally, Part VI resolves Amtrak's partial
motion for summary judgment on plaintiffs'
The Initial And Amended Complaints
employment discrimination class-action was filed on November
9, 1999 on behalf of current and former African-American
employees of Amtrak's Intercity Strategic Business Unit
or applicants for employment in that unit. Compl., ECF No. 1.
Plaintiffs alleged claims for violations of the Civil Rights
Act of 1866, 42 U.S.C. § 1981, and violations of Title
VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000e, against Amtrak and a
myriad of labor unions representing certain plaintiffs.
Id. An amended complaint was filed on March 13,
2000, adding a number of named plaintiffs and a handful of
labor unions as defendants. First Am. Compl., ECF No. 30.
The Court Adjudicates A Series Of Dispositive
first round of dispositive motions was filed in May 2000 in
response to the amended complaint. Although a number of
labor-union defendants answered the amended complaint, a few
moved to dismiss on the ground that the labor unions were not
“indispensable parties” to the litigation and
would be better joined in the liability phase of the lawsuit
if plaintiffs prevailed on their discrimination claims
against Amtrak. See Union Defs.' Mot. to
Dismiss, ECF No. 40; Union Defs.' Mot. to Dismiss, ECF
No. 48. Amtrak also moved to dismiss plaintiffs' class
claims, arguing that no amount of discovery would render
plaintiffs' proposed classes certifiable under Federal
Rule of Civil Procedure 23. See Def.'s Mot. to
Dismiss, ECF No. 47. Amtrak moved separately to dismiss the
individual claims of plaintiffs on a variety of grounds or,
in the alternative, for a more definite statement of those
claims. See Def.'s Mot. to Dismiss, ECF No. 50.
after those motions were briefed, plaintiffs moved for a
temporary restraining order and preliminary injunction in
order to enjoin Amtrak from “discriminating,
disciplining, intimidating, or in any other way
retaliating” against plaintiffs and class members.
See Pls.' Mot. for TRO/PI, ECF No. 51. The Court
denied the request for temporary injunctive relief on June
12, 2000. See Order, ECF No. 62. Thereafter, the
Court granted the motions of the union defendants to be
dismissed from the case, subject to their being rejoined in
the event plaintiffs are successful on their liability claims
and the union defendants are necessary to the finalization of
an appropriate remedy. See Order, ECF No. 63; Order,
ECF No. 64.
second amended complaint, filed August 22, 2000, added one
named plaintiff and eliminated the labor-union defendants.
See Second Am. Compl., ECF No. 79. On January 26,
2001, the Court denied Amtrak's motion to dismiss
plaintiffs' class claims. See Mem. Op. and
Order, ECF No. 92. The Court determined that dismissal of the
class claims was premature given the early stage of the
proceedings, particularly because additional discovery could
permit plaintiffs to correct any fatal flaws in their class
definition. Id. at 3. Later that year, the Court denied
Amtrak's motion to dismiss plaintiffs' individual
claims. See Campbell v. Amtrak, 163 F.Supp.2d 19
(D.D.C. 2001). In so doing, the Court rejected all four of
Amtrak's arguments for dismissal, namely that: “1)
certain 42 U.S.C. § 1981 claims are barred by the
statute of limitations; 2) claims of plaintiffs who
previously filed a charge involving the same conduct
complained of here, but failed to sue, are barred by the
statute of limitations in their right-to-sue letters; 3)
certain Title VII claims are barred by the statute of
limitations; and 4) claims which do not allege a timeframe
fail to state Title VII claims.” Id. at 21.
The Court granted in part, however, Amtrak's motion for a
more definite statement, ordering “plaintiffs to
include dates of alleged events, to the extent possible, in
an amended complaint” and “to amend their
pleading to include a more appropriate term to define the
class, so as to exclude from the class definition the
salaried managerial and professional positions that were
included within the scope of the McLaurin class
action discrimination case against Amtrak.”
Id. at 28.
filed a third amended complaint on January 3, 2002 to address
the concerns set forth in the Court's dismissal Order.
See Third Am. Compl., ECF No. 100. On May 27, 2002,
plaintiffs filed the fourth amended - and currently operative
- complaint. See Fourth Am. Compl., ECF No. 145. The
complaint was amended in response to a decision by the
parties to merge twenty-one discrimination lawsuits filed by
current and former Amtrak employees in the Eastern District
of Louisiana into the putative Campbell classes.
See Pls.' Mem. in Supp. of Mot. to Amend, ECF
No. 143 at 3-4. The parties also agreed to add one plaintiff
from the Louisiana actions - Joseph McDonald - as a named
plaintiff in this action. See id. at 4-5.
February 4, 2002, Amtrak moved to dismiss some of the
individual claims contained in the third amended complaint,
see Def.'s Mot. to Dismiss, ECF No. 104, which
it supplemented in response to the fourth amended complaint
on August 28, 2002, see Def.'s Suppl. Mem. in
Supp. of Mot. to Dismiss, ECF No. 127. On September 26, 2002,
the Court denied Amtrak's motion. See Campbell v.
Amtrak, 222 F.Supp.2d 8 (D.D.C. 2002). Amtrak had sought
to dismiss one plaintiff's claims on the grounds that the
continuing-violations theory could not save those claims from
being barred by the statute of limitations, to dismiss six
other plaintiffs' claims as “based on expired
right-to-sue notices, ” and to dismiss the claims of
three other plaintiffs as barred by the settlement of another
class-action lawsuit. See Id. at 9. In denying
Amtrak's motion to dismiss, the Court found that the
continuing-violations theory could bring one plaintiff's
claims within the statutory period, that further factual
development was required to determine whether other
plaintiffs were entitled to equitable tolling of the statute
of limitations, and that plaintiffs' claims were not
clearly covered by the settlement agreement. Id. at
The Related Case Of Bethea v. Amtrak Police
11, 2001, Loretta Bethea filed an individual
employment-discrimination lawsuit against the Amtrak Police
Department in this court. See Compl., Bethea v.
Amtrak Police Department, No. 01-cv-01513, ECF No. 1.
Ms. Bethea alleged that she had suffered discrimination on
the basis of her race and gender in connection with
promotions and discipline. See generally Id. Amtrak
answered the complaint on September 6, 2001. See
Answer, Bethea v. Amtrak Police Department, No.
01-cv-01513, ECF No. 5. On July 11, 2011, the parties
requested a continuance of the initial scheduling conference
in view of a request to consolidate Bethea with
Campbell for pretrial purposes, see Joint
Mot. to Continue, Bethea v. Amtrak Police
Department, No. 01-cv-01513, ECF No. 11, and on May 2,
2003, the cases were consolidated for pretrial purposes,
see Order, ECF No. 139.
The Parties Proceed To Class-Certification Discovery
discovery was well under way in Campbell.
Immediately after denying Amtrak's 2002 motion to
dismiss, the Court entered an Order directing the parties to
propose “an appropriate schedule for the completion of
discovery in this matter.” Order, ECF No. 132 at 1.
After receiving the parties' proposal, the Court entered
a Scheduling Order on November 7, 2002. See Sched.
Order, ECF No. 135. The Scheduling Order provided that
class-certification discovery would be completed by November
5, 2003, with expert-discovery regarding class certification
to be completed by February 5, 2004. See Id. at 1-
2. The parties had also requested that the Court set a
schedule for summary-judgment briefing. See Joint
Status Report, ECF No. 133. The Court directed that both the
class-certification and summary-judgment motions be filed by
April 5, 2004, with the motions to be ripe by July 6, 2004.
See Scheduling Order, ECF No. 135 at 3.
schedule was extended at the parties' request on many
occasions. See Am. Sched. Order, ECF No. 155; Minute
Order of March 26, 2004; Am. Sched. Order, ECF No. 186;
Minute Order of Sept. 14, 2004; Am. Sched. Order, ECF No.
205; Minute Order of Jan. 14, 2005. The parties requested
additional continuances to work through discovery disputes
and to create a joint database of employment-related data.
See Minute Order of Sept. 9, 2005; Pls.' Mot.
for Sanctions, ECF No. 231; Minute Order of Nov. 8, 2006.
December 30, 2010, the Court entered a Revised Scheduling
Order providing that the motions for class certification and
summary judgment would be fully briefed by December 23, 2011.
Sched. Order, ECF No. 280. That schedule was again modified
due to the Supreme Court's grant of certiorari in
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 354
(2011). Minute Order of May 10, 2011.
The Parties Brief Their Motions For Class Certification And
February 21, 2012, plaintiffs filed their motion for class
certification. See Pls.' Mot. to Certify Class,
ECF No. 303. Amtrak filed its opposition on June 26, 2012,
along with its motion for partial summary judgment.
See Def.'s Opp. to Mot. to Certify Class, ECF
No. 320; Def.'s Mot. for Summ. J., ECF No. 328. On the
same day, Amtrak filed its motions to exclude the report and
testimony of several of plaintiffs' experts. See
Def.'s Mot. to Exclude Finkelman, ECF No. 319; Def.'s
Mot. to Exclude Roth, ECF No. 329; Def.'s Mot. to Exclude
Bradley and Fox, ECF No. 331. Amtrak further moved to
partially strike the declarations of certain putative class
members offered in support of plaintiffs' motion for
class certification. See Def.'s Mot. to Strike,
ECF No. 330. These motions were all ripe by January 4, 2013.
parties had agreed to engage in private mediation for a
period of ninety days following the exchange of expert
reports, class-certification briefing, and summary-judgment
briefing. See Joint Proposed Sched. Order, ECF No.
310 at 2. Accordingly, the Court held in abeyance the
parties' motions pending the conclusion of mediation.
See Minute Order of Sept. 27, 2012. On March 4,
2013, the parties filed a joint status report indicating that
mediation had been unsuccessful. See Joint Status
Report, ECF No. 363. The Court subsequently requested that
the parties file supplemental briefing discussing any new
legal authority regarding class certification. See
Minute Order of December 2, 2013. The parties submitted their
supplemental briefing in early 2014. See Pls.'
Supp. Class Cert. Mem., ECF No. 370; Def.'s Resp. to
Pls.' Supp. Class Cert. Mem., ECF No. 371.
provides passenger rail service through forty-six states and
the District of Columbia. See Report of Drs. Edwin
L. Bradley and Liesl M. Fox (“Bradley/Fox Rep.”),
ECF No. 304-1 at 3. In the period after its inception in
1971, Amtrak was “basically a centrally managed
corporation in D.C.” Dep. of Gilbert Mallery
(“Mallery Dep.”), ECF No. 323-7 at 4. In 1994,
Amtrak began creating “strategic business units”
or “SBUs” with the goal of organizing the
business “around the services that existed” as
opposed to around a corporate headquarters. Dep. of Lee W.
Bullock (“Bullock Dep.”), ECF No. 323-1 at 6;
see also Mallery Dep., ECF No. 323-7 at 4
(explaining that the SBUs were created “to decentralize
decision making” and “to move decision making in
the corporation closer to the customers”). While
decisions relating to Amtrak's “financial
targets” and “ultimate strategy” for the
collective-bargaining process were still centered in
Amtrak's corporate headquarters in the District of
Columbia, other decisions, like those related to budgets and
marketing, were delegated to the SBUs. Bullock Dep., ECF No.
323-1 at 9. For example, although the SBUs followed the
“broad” human-resources policies set at the
corporate level, each SBU had its own human-resource director
and decisions with respect to “hiring and firing”
employees were made at the SBU level. Mallery Dep., ECF No.
323-7 at 4-5. Thus, while Amtrak's corporate headquarters
endeavored to ensure that any “federal and company-wide
mandates were complied with, ” “the day-to-day
decisions were delegated to the HR professionals in the
business units” who “basically enforced,
monitored, controlled to make sure those corporate policies
were followed.” Id. at 5.
SBUs were disbanded in 2002, and Amtrak returned to a more
traditional structure under which it was organized by
functional department at the corporate level and by operating
division at the field level. Decl. of Patricia Kerins
(“Kerins Decl.”), ECF No. 328-7 ¶ 28; Dep.
of Edward Valentine Walker, III (“Walker Dep.”),
ECF No. 309-4 at 3. Although Amtrak has eighteen departments,
plaintiffs' expert Thomas Roth postulates that
approximately ninety-seven percent of Amtrak's unionized
workforce resides in one of five departments. Decl. and
Expert Rep. of Thomas R. Roth (“Roth Rep.”), ECF
No. 304-2 ¶¶ 8, 15. According to Mr. Roth, these
five departments coincide with five functional categories -
or “craft” groups - that are useful “for
analytical purposes”: operating, equipment maintenance,
maintenance of way, clerical/on-board services, and security.
Id. ¶ 9. Mr. Roth opines that employees in
these five craft groups have “a fundamentally shared
function” and that the jobs in each of the categories
“share common work sites and supervision.”
Id. ¶ 21. In addition, Mr. Roth asserts that,
even though Amtrak's employees are represented by
seventeen different unions, employees within each craft group
tend to negotiate common terms and common work conditions in
their collective-bargaining agreements. Id. ¶
25. Finally, Mr. Roth notes that the “rules governing
discipline and grievances are common to a substantial degree
within each functional employee group.” Id.
Hiring And Promotions
has a corporate hiring, promotion, and transfer policy that
was created “to provide guidelines to Amtrak
supervision on how jobs are filled through employment,
promotion, and transfer of employees.” See May
1, 1994 Amtrak Employment/Promotion/Transfer Policy
(“1994 Amtrak Hiring Policy”), ECF No. 307-2 at
3. This policy has been the same since January 1, 1989.
See, e.g., Jan. 1, 1989 Amtrak
Employment/Promotion/Transfer Policy, ECF No. 307-1 at 3;
Sept. 2000 Amtrak Employment, Promotion and Transfer Policy,
ECF No. 307-3 at 3.
to that policy, positions covered by collective-bargaining
agreements (“agreement-covered positions”) must
be “advertised for bid in accordance with the
applicable labor agreement.” 1994 Amtrak Hiring Policy,
ECF No. 307-2 at 12. Local employees who are members of the
union that covers the vacant position are eligible to bid on
the position. Decl. of Sarah Ray (“Ray Decl.”),
ECF No. 322-5 ¶ 4. Generally, the most senior employee
who places a bid and otherwise meets the qualifications is
placed in the position. Id. ¶ 5. If no local
employee bids on the position, then human resources will
determine if a member of the relevant union in a different
geographic location wishes to transfer to take the position.
Id. ¶ 7. That employee would also be required
to meet any qualification requirements before being awarded
the position permanently. Id.
positions are not filled after this internal bidding process,
certain steps must be taken to fill a vacancy. See
1994 Amtrak Hiring Policy, ECF No. 307-2 at 13. The hiring
process begins with the job requisition form, which provides
detailed information regarding the duties and
responsibilities associated with the position, the requisite
qualifications and experience required, and any preferred
qualifications and experience. Id. at 8; Ray Decl.,
ECF No. 322-5 ¶ 10. Generally, a hiring manager will
determine the hiring criteria for an open position by
reviewing a job description or prior requisition forms. Ray
Decl., ECF No. 322-5 ¶ 11; Decl. of Suzanne Allan
(“Allan Decl.”), ECF No. 321-3 ¶ 5. The
process of preparing and approving a job requisition form
varies by department. Decl. of Barbara Wu (“Wu
Decl.”), ECF No. 322-8 ¶ 4.
selection criteria for each position vary significantly and
depend on the job description and requirements described in
the job requisition form. Wu Decl., ECF No. 322-8 ¶ 9;
Ray Decl., ECF No. 322-5 ¶ 12. Local applicants are
preferred for certain positions, especially those for
on-board crew. Wu Decl., ECF No. 322-8 ¶ 9; Ray Decl.,
ECF No. 322-5 ¶ 22. Someone in human resources is
responsible for screening all the applications for a
particular job to determine which applicants match the
minimum requirements, have similar experience to that of the
position at issue, and have a stable employment history. Wu
Decl., ECF No. 322-8 ¶ 9. A hiring manager may ask that
the human-resources recruiter provide the applications for
all candidates that meet the minimum requirements of the
position or may request applications from only the most
qualified applicants. Ray Decl., ECF No. 322-5 ¶ 25.
all agreement-covered positions require that the applicant
pass a test or set of tests prior to becoming eligible for
interviews. Wu Decl., ECF No. 322-8 ¶ 10. Applicants who
meet the minimum requirements for a vacancy are invited to
take the test. Kerins Decl., ECF No. 328-7 ¶ 8. The
tests administered vary depending on the position and the
union involved, and they have changed over time. Wu Decl.,
ECF No. 322-8 ¶ 10. Passing a test does not necessarily
mean that the applicant will be interviewed for the position;
rather, only the most qualified applicants are generally
interviewed for each position. Id. ¶ 13.
Typically, at least three to five applicants are selected to
be interviewed for each vacancy. Ray Decl., ECF No. 322-5
¶ 29; Allan Decl., ECF No. 321-3 ¶ 10.
hiring manager, in consultation with others, develops a set
of interview questions. Wu Decl., ECF No. 322-8 ¶ 15.
The types of questions asked during an interview depend on
the position at issue, any unique requirements relating to
the particular opening, and the preferences of the hiring
manager. Kerins Decl., ECF No. 328-7 ¶ 13. Each
applicant who interviews for a particular position is asked
the same set of questions. Wu Decl., ECF No. 322-8 ¶ 15.
Interviews are conducted by panels of managers and, in some
cases, a union representative. Id. ¶ 17. At
some point before they start conducting interviews, most
managers participate in a behavioral-based interview training
led by a member of the human-resources department. Kerins
Decl., ECF No. 328-7 ¶ 12; Decl. of Karen Broadwater,
ECF No. 321-6 ¶ 21.
conclusion of the interview, the panel members provide each
other with feedback on the candidate. Allan Decl., ECF No.
321-3 ¶ 17. For some positions, interviewers use a
rating form to score the applicant's responses. Wu Decl.,
ECF No. 322-8 ¶ 20. If the scores of each panel member
vary, a consensus form may be used to reach a final score.
Id. Unless the applicant has a very low score in a
key competency, the applicant with the highest total score is
usually recommended for the position. Id. In other
cases, panel members may simply take notes during the
interview to record their opinions about applicants'
responses. Kerins Decl., ECF No. 328-7 ¶ 15. The process
of assessing candidates is “not a cut-and-dried type
process, ” but rather involves a “discussion . .
. among the panel members about the strengths and weaknesses
of a candidate.” Dep. of Sheila Davidson, ECF No. 306-2
at 16. Candidates are evaluated based on their experience,
interview performance, and professionalism. Kerins Decl., ECF
No. 328-7 ¶ 15.
each member of the panel shares his or her thoughts about the
qualifications of the candidates, the ultimate decision of
which candidate to recommend for the vacancy lies with the
hiring manager. Kerins Decl., ECF No. 328-7 ¶ 16. The
hiring manager's selection may be reviewed by his or her
supervisor, and the decision is ultimately approved by the
human-resources department at Amtrak's corporate
headquarters. Id. ¶ 18; Walker Dep., ECF No.
309-4 at 11-12.
Bradley and Dr. Fox, plaintiffs' statistical experts who
analyzed Amtrak's hiring and promotion data, found that
African-American individuals were hired and promoted for
vacant positions at rates lower than their
non-African-American counterparts. Bradley/Fox Rep., ECF No.
304-1 at 4. Specifically, Dr. Bradley and Dr. Fox concluded
that 3, 053 fewer African-American individuals were hired or
promoted than would be expected from the pool of applicants,
after removing those candidates in the pool who were not
minimally-qualified for the position. Id. at 15-16.
Dr. Bradley and Dr. Fox did not, however, consider other
criteria - such as seniority, work experience, education, or
whether the applicant had previously worked at Amtrak - that
may have affected hiring or promotion decisions. Dep. of
Edwin Bradley (“Bradley Dep.”), ECF No. 331-3 at
23-24, 28, 56-57.
collective-bargaining agreements usually contain rules
governing the discipline process. Decl. of Charles E.
Woodcock, III (“Woodcock Decl.”), ECF No. 322-7
¶ 23. The discipline process at Amtrak generally
progresses as follows: (1) verbal warning; (2) written
warning; (3) disciplinary hearing if a formal charge is
filed; (4) a second disciplinary hearing if a formal charge
is filed; and (5) a third disciplinary hearing if a formal
charge is filed, which may in turn lead to termination.
Id. ¶ 20. Discipline decisions are generally
made by and subject to the discretion of a local manager.
Id. ¶ 22. The final decision to terminate an
individual currently rests with the vice-president of human
resources. Walker Dep., ECF No. 309-4 at 4-5.
basic disciplinary process is similar for employees across
all labor unions, though there are some limited differences.
See Dep. of LaVerne Miller, ECF No. 308-6 at 34-35
(Amtrak corporate designee testifying that the claims and
grievance procedures across craft groups are “equal
across the board”); Woodcock Decl., ECF No. 322-7
¶ 23; Roth Rep., ECF No. 304-2 ¶ 31. For example,
each collective-bargaining agreement has “just
cause” type provisions that afford employees the right
to file an appeal of any disciplinary charges. Woodcock
Decl., ECF No. 322-7 ¶ 23; see also Roth Rep.,
ECF No. 304-2 ¶ 32 (explaining that the language of the
grievance procedures vary between collective-bargaining
agreements but that they all “embody the principles of
just cause, fair and impartial investigation, timeliness and
 other due process elements”).
these broad similarities, rules governing employee conduct
may vary by position. Woodcock Decl., ECF No. 322-7 ¶
21. For example, passenger engineers are subject to certain
federal regulations and operating rules that other employees
are not. Id. ¶ 21. Likewise, there may be
different expectations for ticket clerks, who deal with
customers on a daily basis, than for other employees whose
jobs do not require interaction with the public. Id.
Bradley and Dr. Fox compared the rates of disciplinary
charges between African-American and non-African-American
unionized employees at Amtrak. Bradley/Fox Rep., ECF No.
304-1 at 16. They found that, of the 24, 136 disciplinary
charges issued to Amtrak employees during the analysis time
period, 10, 651 charges were brought against African-American
employees, even though one would have expected only 8, 924
charges to be brought against African-American employees
during that same period. Id. Notably, Dr. Bradley
and Dr. Fox did not make these comparisons among employees
that were similarly situated - for example, Dr. Bradley
explained that his analysis did not consider the specific
position or union to which the employee belonged, an
employee's previous disciplinary history, the severity of
the offense and discipline issued, or the employee's
tenure at Amtrak. See Bradley Dep., ECF No. 331-3 at
like many employers of its size, has corporate policies
prohibiting discrimination, harassment, and retaliation. See
Def.'s Opp. to Mot. to Certify Class, ECF No. 320 at
16-19; Dep. of Karen Broadwater Ex. 1, ECF No. 322-10 at
14-17 (Sept. 20, 2011 EEO and Affirmative Action Policy);
id. Ex. 2, ECF No. 322-10 at 18-22
(Anti-Discrimination and Anti- Harassment Policy). In
addition, as a result of the settlements entered in
McLaurin v. Amtrak and Thornton v. Amtrak,
Amtrak established a Dispute Resolution Office
(“DRO”) in 1999, which was located within the
Business Diversity Department. Decl. of Dawn Marcelle
(“Marcelle Decl.”), ECF No. 322-2 ¶¶ 2,
9. The function of the DRO was to investigate internal
complaints of harassment or discrimination raised by
agreement-covered employees. Id. ¶ 10.
Employees could initiate complaints internally in a variety
of ways: they could raise complaints with supervisors, report
complaints directly to their local DRO office, or call the
DRO hotline. Id. ¶ 14.
Hightower, the Vice President of the Business Diversity
Department between April 1999 and February 2001, testified
that she and her staff attempted to aggressively investigate
race discrimination complaints during her tenure at Amtrak.
See Dep. of Wanda Hightower (“Hightower
Dep.”), ECF No. 309-9 at 7-8. Ms. Hightower testified
that these efforts were met with resistance by both
lower-level employees and upper management at Amtrak. See
Id. at 14-18, 22-23, 29. She also stated that racial
discrimination “was bad across the system” at
Amtrak, particularly among the “rank and file.”
Id. at 30. This testimony is supported by the
declarations of named plaintiffs and putative class members,
some of whom point to individual instances of racism and
others of whom point to a more pervasive culture of racism
during their tenure at Amtrak. See Pls.' Mot.
for Class Cert. Ex. 8, ECF No. 304-8. These declarations
detail instances of overt and obvious racism (e.g., use of
racial epithets, hanging black dolls or monkeys from nooses
in employee common areas, racially-charged physical threats),
in addition to allegations of more subtle racism (e.g.,
assigning African-American employees more menial job
assignments). See id.
2007, Amtrak dissolved the Business Diversity Department, and
the DRO was merged into the Human Resources Department.
Marcelle Decl., ECF No. 322-2 ¶ 24. After the DRO moved
to the Human Resources Department, it continued to receive
and investigate internal complaints through May 2011, at
which time the DRO was dissolved. Id. ¶ 25. All
complaints related to discrimination are now addressed by the
EEO Compliance Unit, which is part of Amtrak's Legal
EXCLUSION OF EXPERT TESTIMONY
moves to exclude the testimony and reports of various experts
proffered by plaintiffs in support of their motion for class
certification. See Def.'s Mot. to Exclude
Finkelman, ECF No. 319; Def.'s Mot. to Exclude Roth, ECF
No. 329; Def.'s Mot. to Exclude Bradley and Fox, ECF No.
331. Amtrak contends that these experts must be excluded
under Federal Rule of Evidence 702 and Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Plaintiffs argue that Daubert's admissibility
considerations are not relevant at the class-certification
stage and, in any event, that their evidence is admissible.
The Court Must Conduct A Full Daubert Inquiry Before
Relying On Expert Testimony At The Class-Certification
issue of how to evaluate expert testimony at the
class-certification stage “ha[s] beguiled the federal
courts.” Newberg on Class Actions § 7:24 (5th ed.
2014). The Supreme Court has strongly hinted that district
courts should apply the same standard at the
class-certification stage that they would apply to expert
testimony offered at a later stage of proceedings. See
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 354 (2011)
(casting “doubt” on the conclusion “that
Daubert did not apply to expert testimony at the
certification stage of class-action proceedings”).
Indeed, in 2013, the Supreme Court granted
certiorari to resolve the issue but was unable to do
so because “the question was not properly posed.”
See Newberg on Class Actions § 7:24 (citing
Comcast Corp. v. Behrend, 569 U.S. 27 (2013)). The
question is difficult “for the simple reason that
certification is generally not the time to decide
the merits of the case, yet expert witness testimony relevant
to the merits often is proffered as also relevant to a prong
of the certification inquiry.” Newberg on Class Actions
Court of Appeals for the District of Columbia Circuit
(“D.C. Circuit”) has not yet weighed in on
whether a full analysis under Daubert is required at
the class-certification stage. See In re Rail Freight
Fuel Surcharge Antitrust Litig., No. 07-0489, 2016 WL
2962186, at *2 (D.D.C. May 20, 2016); Moore v.
Napolitano, 926 F.Supp.2d 8, 16, n.2 (D.D.C. 2013);
Kottaras v. Whole Foods Mkt., Inc., 281 F.R.D. 16,
26 (D.D.C. 2012). Most circuit courts that have addressed the
issue have found that, where an expert's testimony is
critical to class certification, “a district court must
conclusively rule on any challenge to the expert's
qualifications or submissions prior to ruling on a class
certification motion” - i.e., “the district court
must perform a full Daubert analysis before
certifying the class.” Am. Honda Motor Co. v.
Allen, 600 F.3d 813, 815-16 (7th Cir. 2010); see
also, e.g., Ellis v. Costco Wholesale Corp.,
657 F.3d 970, 982 (9th Cir. 2011) (district court
“correctly applied the evidentiary standard set forth
in Daubert” at the class-certification stage);
Sher v. Raytheon Co., 419 Fed.Appx. 887, 890-91
(11th Cir. 2011) (“Here the district court refused to
conduct a Daubert-like critique of the proffered
experts' qualifications. This was error.”); In
re Carpenter Co., No. 14- 0302, 2014 U.S. App. LEXIS
24707, at *10-11 (6th Cir. Sep. 29, 2014) (district court did
not abuse its discretion by analyzing expert testimony
offered in support of class certification under
Daubert); In re Blood Reagents Antitrust
Litig., 783 F.3d 183, 187 (3d Cir. 2015) (“We join
certain of our sister courts to hold that a plaintiff cannot
rely on challenged expert testimony, when critical to class
certification, to demonstrate conformity with Rule 23 unless
the plaintiff also demonstrates, and the trial court finds,
that the expert testimony satisfies the standard set out in
Daubert.”); but see In re Zurn Pex
Plumbing Prods. Liab. Litig., 644 F.3d 604, 611-14 (8th
Cir. 2011) (approving use of a “focused
Daubert analysis” instead of a “full and
conclusive Daubert inquiry”).
courts that have required a full Daubert inquiry
generally focus on the “rigorous analysis” that a
district court must apply to a plaintiff's request for
class certification - a standard that, after
Comcast, clearly applies to expert testimony that is
proffered in support a request for certification. See
Comcast Corp. v. Behrend, 569 U.S. 27, 34-35 (2013).
This means that the district court must discern whether a
plaintiff has proven compliance with Rule 23(a)
“in fact” and whether
the plaintiff has “‘satisf[ied] through
evidentiary proof at least one of the provisions of Rule
23(b).'” In re Blood Reagents Antitrust
Litig., 783 F.3d at 187. Under this approach,
“[e]xpert testimony that is insufficiently reliable to
satisfy the Daubert standard cannot
‘prove' that the Rule 23(a) prerequisites have been
met ‘in fact, ' nor can it establish ‘through
evidentiary proof' that Rule 23(b) is satisfied.”
Id.; see also, e.g., Messner v.
Northshore Univ. HealthSystem, 669 F.3d 802, 812 (7th
Cir. 2012) (“Failure to conduct [a Daubert]
analysis when necessary . . . would mean that the unreliable
testimony remains in the record, a result that could easily
lead to reversal on appeal.”).
Eighth Circuit - the only Circuit to have reached a
contradictory decision after Dukes - sanctioned a
“‘tailored' Daubert analysis”
that “examined the reliability of the expert opinions
in light of the available evidence and the purpose for which
they were offered.” In re Zurn Pex Plumbing Prods.
Liab. Litig., 644 F.3d 604, 612 (8th Cir. 2011); see
also Id. at 611 (declining to “adopt a new rule,
requiring a district court to determine conclusively at an
early stage, not just whether or not expert evidence is
sufficient to support class certification under Rule 23, but
also whether that evidence will ultimately be admissible for
trial”). This holding emphasized the “inherently
preliminary nature of pretrial evidentiary and class
certification rulings, ” and noted that the “main
purpose of Daubert” - “to protect juries
from being swayed by dubious scientific testimony” -
does not arise in motions for class certification
“where the judge is the decision maker.”
Id. at 613.
Court is persuaded that it must conduct a full
Daubert inquiry at the class-certification stage.
Concerns regarding the tentativeness of class-certification
rulings have been undermined significantly by the 2003
amendment to Rule 23, which removed language permitting a
conditional class-certification ruling. See In re Zurn
Pex Plumbing Prods. Liab. Litig., 644 F.3d at 630
(Gruender, J., dissenting) (arguing that “the 2003
amendments to Rule 23 removed the provision that class
certification ‘may be conditional'” and that
failing to conduct a full Daubert inquiry regarding
evidence crucial to a certification decision would mean that
“the case will proceed beyond class certification on
the basis of inadmissible, unreliable expert
testimony”). The fact that a class-certification ruling
may be revisited, Fed.R.Civ.P. 23(c)(1)(C), or that
merits-related discovery may lead to additional evidence that
supports an expert's conclusions, does not warrant
applying a relaxed standard to an expert's opinions at
the certification stage. Moreover, after Dukes,
“[t]he Court must consider
merits questions when those questions overlap with Rule
23's requirements.” Coleman through Bunn v.
Dist. of Columbia, 306 F.R.D. 68, 77 (D.D.C. 2015);
cf. Amgen Inc. v. Connecticut Ret. Plans & Tr.
Funds, 568 U.S. 455, 466 (2013) (“Merits questions
may be considered to the extent - but only to the extent -
that they are relevant to determining whether the Rule 23
prerequisites for class certification are satisfied.”).
Accordingly, the concern that conducting a full
Daubert hearing would inappropriately prejudge a
merits issue is less persuasive; if that merits issue
overlaps with Rule 23, the Court must prejudge it to
the extent necessary to assess plaintiffs' compliance
with Rule 23.
short, the Court agrees with the heavy weight of authority
that, when a party moves to exclude expert testimony
proffered in support of a motion for class certification, the
district court must perform a full Daubert analysis
before certifying a class. See In re Rail Freight Fuel
Surcharge Antitrust Litig., No. 07-0489,, at *2 (D.D.C.
May 20, 2016) (addressing the “reliability of the
experts' methodology under Daubert and Rule
702” at the class-certification stage); Kottaras v.
Whole Foods Mkt., Inc., 281 F.R.D. 16, 26 (D.D.C. 2012)
(“the Court agrees with other courts that the Rule
calls for careful and searching analysis of all evidence with
respect to whether Rule 23's certification requirements
have been met, including expert opinions”).
Legal Standard For Admissibility Of Expert Testimony
district court has “‘broad discretion in
determining whether to admit or exclude expert
testimony.'” United States ex rel.
Miller v. Bill Harbert Int'l Constr., Inc., 608 F.3d
871, 895 (D.C. Cir. 2010) (citation omitted). The exercise of
that discretion is governed by Federal Rule of Evidence 702,
which provides that:
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 facts of the case.
702 requires the district court to act as a
“gatekeeper” for expert testimony by ensuring
that “any and all scientific testimony or evidence
admitted is not only relevant, but reliable.”
Daubert, 509 U.S. at 589; see also Ambrosini v.
Labarraque, 101 F.3d 129, 133 (D.C. Cir. 1996)
(“[t]he Daubert standard involves a two-prong
analysis that centers on evidentiary reliability and
relevancy”). In Kumho Tire Co. v. Carmichael,
526 U.S. 137, 141 (1999), the Supreme Court made clear that
this gatekeeping obligation applies to all expert testimony,
not just scientifically-based testimony.
Rule 702, expert testimony is reliable if (1) it is based on
sufficient facts or data; (2) it is the product of reliable
principles and methods; and (3) the expert has applied the
principles and methods reliably to the facts of the case.
See, e.g., Heller v. District of Columbia,
801 F.3d 264, 271 (D.C. Cir. 2015) (“[C]ourts are
obligated to ‘determine whether [expert] testimony has
a reliable basis in the knowledge and experience of [the
relevant] discipline.'”) (quoting Kumho
Tire, 526 U.S. at 149); Robinson v. Dist. of
Columbia, 75 F.Supp.3d 190, 199 (D.D.C. 2014)
(“‘[t]he trial judge ... must find that [the
proffered testimony] is properly grounded, well-reasoned and
not speculative before it can be admitted'”)
(quoting Fed.R.Evid. 702 advisory committee notes). In
determining reliability, the district court must “focus
solely on principles and methodology, not on the conclusions
that they generate.” Ambrosini, 101 F.3d at
133. The trial judge has “considerable leeway in
deciding in a particular case how to go about determining
whether particular expert testimony is reliable.”
Kumho Tire, 526 U.S. at 152; see also Estate of
Gaither ex rel. Gaither v. Dist. of Columbia, 831
F.Supp.2d 56, 62 (D.D.C. 2011) (“‘Exactly
how reliability is evaluated may vary from case to
case, but what remains constant is the requirement that the
trial judge evaluate the reliability of the testimony before
allowing its admission at trial.'”) (citation
second Daubert prong relates to relevance and is
fairly straightforward.” Rothe Dev., Inc. v. Dept.
of Defense, 107 F.Supp.3d 183, 197 (D.D.C. 2015). The
district court “must determine whether the proffered
testimony is sufficiently tied to the facts of the case and
whether it will aid the factfinder in resolving a factual
dispute. Fed. Trade Comm'n v. Whole Foods Market,
Inc., No. 07-1021, 2007 WL 7632283, at *1 (D.D.C. July
17, 2007). “The Daubert Court described this
consideration as one of ‘fit.'”
Ambrosini, 101 F.3d at 134. Although the district
court assumes only a “limited” gate-keeping role
under these standards, and “‘[r]ejection of an
expert's testimony is the exception rather than the rule,
'” see Paige Int'l, Inc. v. XL Specialty
Ins. Co., No. 14-1244, 2016 WL 3024008, at *3 (D.D.C.
May 25, 2016) (citation omitted), the “decision to
receive expert testimony” cannot be
“‘simply tossed off to the jury under a
‘let it all in' philosophy, '” see
Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 569
(D.C. Cir. 1993) (citation omitted). As such, “[t]he
issue for the Court to determine is whether . . . [the
expert's] assumptions amount to ‘rampant
speculation' and should be excluded, or whether [the]
assumptions merely represent a weak factual basis for [the
expert's] testimony that is appropriately challenged on
cross examination.” Boyar v. Korean Air Lines
Co., 954 F.Supp. 4, 7 (D.D.C. 1996).
Amtrak's Motion To Exclude Dr. Finkelman's Testimony
And Report Is Granted
Dr. Finkelman's Qualifications And Opinions
Finkelman is an industrial-organizational psychologist and
the Vice-President of Academic Affairs and Chief Academic
Officer of the Chicago School of Professional Psychology.
Expert Rebuttal Report of Jay Finkelman, PhD, ABPP, CPE
(“Finkelman Rebuttal Rep.”), ECF No. 344-2 at 2.
He holds a Ph.D. in Industrial-Organizational Psychology from
New York University and an M.B.A. in Industrial Psychology
from the Bernard M. Baruch School of Business. Expert Rep. of
Jay Finkelman, PhD, ABPP, CPE (“Finkelman Rep.”),
ECF No. 304-3 at 3. Dr. Finkelman “specializes”
in a variety of topics, including human resources, staffing
industry management practices, employment discrimination,
adverse impact, performance appraisal, and psychometrics.
Id. at 5. He has “had hundreds of retentions
and depositions” and has “testified at trial over
46 times.” Id. at 3.
Finkelman was retained by plaintiffs to “review the
hiring, promotional, and discipline policies of Amtrak”
and “determine whether or not they were consistent with
generally accepted Human Resource Management practices and
the principles of Industrial-Organizational
Psychology.” Finkelman Rep., ECF No. 304-3 at 17-18. In
preparing his report, Dr. Finkelman relied on plaintiffs'
third amended complaint, Amtrak's answer to that
complaint, the depositions and related exhibits of three of
Amtrak's corporate representatives, the deposition and
related exhibits of one fact witness, the expert report of
Dr. Bradley and Dr. Fox, a document titled “Selection
Roulette, ” and the declarations of class members.
See Finkelman Report at 26; Dep. of Jay M. Finkelman
(“Finkelman Dep.”), ECF No. 319-3 at 5.
on his review of these selected materials, Dr. Finkelman
provided an expert report, the substance of which spans
approximately eight pages. In his report, in a section titled
“Opinions, ” Dr. Finkelman first sets forth
background principles undergirding “good”
human-resource management policies and practices and states
that Amtrak “did not appear to have adequate mechanisms
in place” to accomplish certain objectives of
human-resource management. Finkelman Rep., ECF No. 304-3 at
19-20. Notably, he does not cite any studies, data, articles,
or other academic sources supporting any of his observations.
Finkelman next makes “[a] few specific
observations” with respect to this case. Id.
at 18-19. Those observations consist of twenty bullet points
that point out various problematic human-resources practices
purportedly found at Amtrak. Id. at 19-24. Nine of
those bullets are summaries of testimony of Amtrak managers
provided to Dr. Finkelman by plaintiffs' counsel in a
document titled “Selection Roulette, ” coupled
with Dr. Finkelman's observations about the hiring
practices described in those summaries. Compare Id.
at 20-23, with Finkelman Dep. Ex. 7, ECF No. 319-3
at 130-136. Based on his review of the summaries, Dr.
Finkelman concludes that Amtrak's employment policies and
practices failed to accomplish the “dual” goals
of human-resource management: to protect employees from
discrimination, harassment, and retaliation while “also
protecting the organization from liability associated with
improper policies and practices.” Finkelman Rep., ECF
No. 304-3 at 18. According to Dr. Finkelman, this failure is
attributable to the fact (1) that Amtrak has “few if
any controls against intentional or inadvertent bias”
and (2) that Amtrak's hiring, promotional, and discipline
policies are “not consistent with generally accepted
Human Resource Management practices nor with the professional
requirements of Industrial-Organizational Psychology.”
Id. at 24; see also Finkelman Dep., ECF No.
319-3 at 4-5 (opining that, although Amtrak had overarching
policies in place governing hiring, promotion, and employee
discipline, individual managers departed from those policies
in a manner that “allowed for subjectivity and the
potential for bias or discrimination”).
Dr. Finkelman's Opinions Are Unreliable
argues that Dr. Finkelman's report fails
Daubert's reliability prong because, among other
reasons, Dr. Finkelman did not consider sufficient facts in
forming his opinion. See Def.'s Mem. in Supp.
Mot. to Exclude Finkelman, ECF No. 319-1 at 19-25. Amtrak
asserts that Dr. Finkelman's opinions are supported only
by “cherry-picked” documents selected by
plaintiffs' counsel, and that Dr. Finkelman failed to
request, much less review, a host of other evidence
“pertinent to the question he purportedly sought to
answer - whether Amtrak's policies, practices, and
procedures are consistent with generally accepted
human-resources practices and the general principles of
industrial organizational psychology.” Id.
Rule of Evidence 702 requires expert testimony to be
“based on sufficient facts or data” to be
reliable. United States ex rel. Miller v. Bill Harbert
Int'l Const., Inc., 608 F.3d 871, 894 (D.C. Cir.
2010) (quoting Fed.R.Evid. 702). Although an expert
“need not consider every possible factor to
render a ‘reliable' opinion, the expert still must
consider enough factors to make his or her opinion
sufficiently reliable in the eyes of the court.”
MicroStrategy Inc. v. Bus. Objects, S.A., 429 F.3d
1344, 1355 (Fed. Cir. 2005); Estate of Gaither ex rel.
Gaither v. Dist. of Columbia, 831 F.Supp.2d 56, 66
(D.D.C. 2011) (expert must provide “meaningful
measure of detail” as to the expert's
“experience with and knowledge of” the facts
underlying his opinions).
reviewing Dr. Finkelman's report and deposition
testimony, the Court finds that Dr. Finkelman's expert
opinion relies on insufficient facts and data and therefore
lacks the reliability required under Rule 702. For example,
although Dr. Finkelman purports to opine about the
human-resource management practices at Amtrak, he testified
that he did not review information critical to those
opinions, including the depositions of any human-resource
managers, see Finkelman Dep., ECF No. 319-3 at 5;
documents related to any job-selection decisions by any
Amtrak manager, see Id. at 23; personnel files or
documents related to any discipline decision made by Amtrak,
see id.; or Amtrak's discrimination complaint
procedures or anti-discrimination training, see Id.
although he agreed that the collective-bargaining agreements
applicable to plaintiffs “would have [an] impact”
on Amtrak's hiring, promotion, and disciplinary policies,
see Finkelman Dep., ECF No. 319-3 at 25, he did not
review those agreements prior to forming his opinions,
see Id. at 22-23. Dr. Finkelman also testified that,
although he “assume[s]” that the consent decrees
imposed in previous employment-discrimination litigation
involving Amtrak had an impact “on the hiring,
promotional, or discipline policies at Amtrak, ” he
“didn't read the consent decrees” and
therefore did not “know the exact changes that may have
been made” by Amtrak in response to the decrees.
Id. at 25. Rather, Dr. Finkelman testified that he
only considered limited “facts” in forming his
opinion that Amtrak's practices and policies were
inconsistent with the goals of good human-resource management
Q. You say “Amtrak has not accomplished either
objective, in my opinion.” What's the basis for
A. Well, the basis is the allegations that have been leveled
by both the plaintiffs and perhaps other class members. In
this matter, my review of the statements by supervisors as to
how it is that they engage in selection or promotion. And I
suppose also by the $16 million that Amtrak had to pay in one
of the earlier phases of ...