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Campbell v. National Railroad Passenger Corp.

United States District Court, District of Columbia

April 26, 2018

KENNETH CAMPBELL, et al., Plaintiffs,


          Emmet G. Sullivan, United States District Judge

         Plaintiffs - 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.

         Pending 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 GRANTED.

         In Part 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' disparate-impact claims.


         A. The Initial And Amended Complaints

         This 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.

         B. The Court Adjudicates A Series Of Dispositive Motions

         The 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.

         Shortly 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.

         A 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.[1] 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.

         Plaintiffs 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.

         On 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 10-14.

         C. The Related Case Of Bethea v. Amtrak Police Department

         On July 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.

         D. The Parties Proceed To Class-Certification Discovery

         Meanwhile, 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.

         This 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.

         On 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.

         E. The Parties Brief Their Motions For Class Certification And Summary Judgment

         On 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.

         The 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.


         A. Amtrak's Structure

         Amtrak 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.

         The 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. ¶ 31.

         B. Hiring And Promotions

         Amtrak 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.

         Pursuant 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.

         When 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.

         The 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.

         Almost 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.

         The 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.

         At the 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.

         While 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.

         Dr. 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.

         C. Discipline

         The 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.

         This 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”).

         Despite 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. ¶ 21.

         Dr. 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 65-67.

         D. Work Environment

         Amtrak, 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.

         Wanda 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.

         In June 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 Department.[2]


         Amtrak 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.

         A. The Court Must Conduct A Full Daubert Inquiry Before Relying On Expert Testimony At The Class-Certification Stage

         The 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 § 7:24.

         The 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”).

         The 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.”).

         The 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.

         The 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.

         In 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”).

         B. Legal Standard For Admissibility Of Expert Testimony

         A 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 methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

         Rule 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.

         Under 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 omitted).

         “The 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).

         C. Amtrak's Motion To Exclude Dr. Finkelman's Testimony And Report Is Granted

         1. Dr. Finkelman's Qualifications And Opinions

         Dr. Jay 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.

         Dr. 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.

         Based 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.

         Dr. 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”).

         2. Dr. Finkelman's Opinions Are Unreliable

         Amtrak 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.

         Federal 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).

         After 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. at 45.

         Likewise, 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 practices:

Q. You say “Amtrak has not accomplished either objective, in my opinion.” What's the basis for that statement?
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 ...

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