Campbell v. Natl Railroad Pass

• Court: District Court, District of Columbia
• Decided: April 26, 2018
• Docket: Civil Action No. 1999-2979
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ________________________________ ) KENNETH CAMPBELL, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 99-2979 (EGS) ) NATIONAL RAILROAD PASSENGER ) CORPORATION, ) ) Defendant. ) ________________________________) ________________________________ ) LORETTA K. BETHEA, ) ) Plaintiff, ) ) v. ) Civil Action No. 01-1513 (EGS) ) AMTRAK POLICE DEPARTMENT, ) ) Defendant. ) ________________________________)

MEMORANDUM OPINION

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

2 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.

I. PROCEDURAL HISTORY

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

3 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

4 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

1 When citing to the electronic filings in this opinion, the Court cites to the ECF page numbers, not the page number of the filed document.

5 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

6 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,

7 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

8 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.

9 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

10 No. 370; Def.’s Resp. to Pls.’ Supp. Class Cert. Mem., ECF No.

371.

II. BACKGROUND

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

11 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

12 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.

13 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

14 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.

15 322-8 ¶ 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

16 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

17 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

18 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

19 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-

20 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

21 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

III. EXCLUSION OF EXPERT TESTIMONY

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.

2 Prior to the dissolution of the DRO, Amtrak’s EEO Compliance Unit only handled complaints by employees that were filed with a federal, state, or local agency, along with any internal complaints in which an employee was represented by counsel. Marcelle Decl., ECF No. 322-2 ¶ 10.

22 329; 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

23 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 F. App’x 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-

24 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

25 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

26 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)

27 (“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

28 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.

29 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).

30 “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).

31 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

32 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

33 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”).

34 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

35 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

36 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 litigation, which seemed to suggest that there is a problem and some wrongdoing.

Finkelman Dep., ECF No. 319-3 at 26.

Even in his consideration of these limited “facts,” Dr.

Finkelman did little to confirm their accuracy. For example,

although he offers opinions on the selection process used by

supervisors in hiring and promoting employees, Dr. Finkelman did

not read the deposition testimony of any supervisors. See

Finkelman Dep., ECF No. 319-2 at 31. Instead, Dr. Finkelman

relied on a document titled “Selection Roulette” in which

plaintiffs’ counsel “summed up” the testimony of select

supervisors. Id. at 5 (“The information from managers came from

37 the depositions that had taken place by managers. And I got that

information through, I think, a document that’s referred to as a

“selection roulette” or something like that.”); id. at 28

(affirming that he relied on the document titled “selection

roulette” for management testimony). Dr. Finkelman conceded that

he took no steps to verify the accuracy or the

representativeness of the information in the “Selection

Roulette” document. Id. at 28-29. Indeed, Dr. Finkelman

acknowledged that, “to figure out what really took place” at

Amtrak, he would likely need to “get into more detail.” Id. at

29. For purposes of the report, Dr. Finkelman explained

From the descriptions that were given [in the “Selection Roulette” document], assuming that they are reasonably accurate, they are so far off in acceptable norm that I didn’t need any more at this point. I will look more carefully, and if — if the roulette has misrepresented any of those issues or approaches, and if it didn’t accurately characterize what managers said, you know, that would be a different story. But there are specific citations that are included, and yes, I will be looking at those.

Id. (emphasis added).

Dr. Finkelman simply “assum[ed]” that plaintiffs’ counsel

“accurately characterize[d]” the testimony of Amtrak managers

regarding their hiring practices instead of independently

reviewing that testimony himself — and, critically, proceeded to

formulate the opinions set forth in his expert report based, in

38 part, on that unverified testimony. Such blind reliance on

“facts” provided by plaintiffs’ counsel — combined with his

failure to review other sources of information that he conceded

could have affected Amtrak’s hiring, promotion, and disciplinary

practices — renders his expert report unreliable. See, e.g.,

Parsi v. Daioleslam, 852 F. Supp. 2d 82, 89 (D.D.C. 2012) (facts

and data relied upon by expert were “patently insufficient”

where expert “read only an apparently haphazard selection of

defendant’s sources”); Sommerfield v. City of Chicago, 254

F.R.D. 317, 321 (N.D. Ill. 2008) (“Acceptance of the notion that

an expert can reasonably base his opinion on summaries of

deposition testimony prepared by a party’s lawyer would

effectively eliminate Daubert’s insistence that an expert’s

opinion be grounded on reliable information.”); Equal Emp’t

Opportunity Comm’n v. Rockwell Int’l Corp., 60 F. Supp. 2d 791,

795 (N.D. Ill. 1999) (expert report unreliable where expert’s

“sole source of information . . . c[ame] from summaries prepared

by one of the litigants” and expert failed to “review the entire

depositions”); Equal Emp’t Opportunity Comm’n v. Bloomberg L.P.,

No. 07-8383, 2010 U.S. Dist. LEXIS 92511, at *46 (S.D.N.Y. Aug.

31, 2010) (expert’s reliance “solely on the information fed to

him by [plaintiff] without independently verifying whether the

information [wa]s representative undermine[d] the reliability of

his analysis”); Makor Issues & Rights, Ltd. v. Tellabs, Inc.,

39 No. 02-4356, 2010 U.S. Dist. LEXIS 62114, at *14-15 (N.D. Ill.

June 23, 2010) (excluding expert report related to defendant’s

financial forecasts in part because expert “did not read any

testimony about how [defendant] prepared its forecast” and “did

not even read the deposition transcript” of the head of

defendant’s forecasting division).

There are other problems with the reliability of Dr.

Finkelman’s proposed expert testimony as well. For example, Dr.

Finkelman has not identified any particular principles or

methodology he used in forming his opinions. Dr. Finkelman does

not cite a single study, report, or other source for his

opinions related to appropriate human-resources policies and

practices. And, although he opines that Amtrak permitted an

inappropriate degree of subjectivity in its hiring and promotion

practices, Dr. Finkelman did not attempt to measure the degree

of subjectivity at Amtrak. Finkelman Dep., ECF No. 319-3 at 27.

Indeed, Dr. Dr. Finkelman did not conduct any independent

research as part of his assessment of Amtrak’s policies. Id. at

22. Rather, when asked how he prepared his report, Dr. Finkelman

testified:

The process I use, which is the way I normally do it is, I go through all the documents initially to get a sense of it, and I tend to do that rapidly. And then I go back and start making determinations as to what fits into a report. And that’s exactly the process I used. So I start by reading the complaint and the

40 answer to the complaint, and then the depositions. And I start finding spots in the deposition or the declarations that seemed to be relevant to what I was asked to do, and then I just put that together as a report.

Finkelman Dep., ECF No. 319-3 at 24; see also id. at 27

(testifying that his report was “predominantly” based on his

“review of the deposition testimony of managers as to how it is

that they make decisions pertaining to hiring and promotion and

to a lesser degree discipline”); id. at 28 (confirming that he

did not read the deposition testimony of managers but instead

relied on the “selection roulette” document provided by

plaintiffs’ counsel that summarized the testimony of selected

managers).

In short, Dr. Finkelman appears to have uncritically relied

on documents supplied to him by plaintiffs’ counsel, cited to

those pieces of evidence that supported his theories, and

concluded that this selective evidence demonstrates that

Amtrak’s practices were inconsistent with generally-accepted

human resource management practices. Finkelman Rep., ECF No.

304-3 at 25. To the extent that this may be considered a

methodology at all, it does not meet the standards of

reliability demanded by Rule 702 or Daubert. See, e.g.,

Chesapeake Climate Action Network v. Exp.-Imp. Bank of the

United States, 78 F. Supp. 3d 208, 219 (D.D.C. 2015) (expert

testimony inadmissible where expert failed to identify any

41 “principles or methodology” used to arrive at his opinions, but

rather “note[d] only that he reviewed certain documents and

reached a series of conclusions”); Obrycka v. City of Chicago,

792 F. Supp. 2d 1013, 1025 (N.D. Ill. 2011) (excluding expert

witness who “did not conduct any independent research” to

prepare his report and who failed to “investigate[] the veracity

of the materials Plaintiff’s counsel provided to him, or

request[] additional materials from Plaintiff’s counsel to

further inform his opinion”).

3. Dr. Finkelman’s Opinions Do Not Constitute “Generalized Expert Testimony”

In response to these deficiencies, plaintiffs assert that

“some of the content” of Dr. Finkelman’s report and testimony

consists of “explication of the principles” of social science

that may be admitted as “generalized testimony.” See Pls.’ Opp.

to Mot. to Exclude Roth and Finkelman (“Pls.’ Roth/Finkelman

Opp.”), ECF No. 345 at 10-12. Plaintiffs contend that such

testimony is appropriate because

it might also be important in some cases for an expert to educate the factfinder about general principles, without ever attempting to apply these principles to the specific facts of the case. . . . For this kind of generalized testimony, Rule 702 simply requires that: (1) the expert be qualified; (2) the testimony address a subject matter on which the factfinder can be assisted by an expert; (3) the testimony be reliable; and (4) the testimony ‘fit’ the facts of the case.

42 Id. at 11 (quoting Fed. R. Evid. 702 advisory committee notes).

Plaintiffs do not specify which portions of Dr. Finkelman’s

report or testimony they seek to admit under this provision. See

generally Pls.’ Roth/Finkelman Opp., ECF No. 345. Nor do

plaintiffs address how, precisely, they believe such testimony

about industrial-organizational psychology, without any

application to the facts of this case, will assist the Court’s

class-certification inquiry. Id. Despite plaintiffs’ argument to

the contrary, Dr. Finkelman’s report says little about the “role

of unbridled subjectivity in employment selections,” see Pls.’

Roth/Finkelman Opp., ECF 345 at 12, that is “generalized” and

does not “attempt[] to apply the[] principles to the specific

facts of the case,” Fed. R. 702 advisory committee notes. See

Finkelman Rep., ECF No. 304-3 at 19-25; see also Fox v.

Pittsburgh State Univ., No. 14-2606, 2016 WL 4919463, at *3 (D.

Kan. Sept. 15, 2016) (rejecting defendant’s argument that expert

was merely offering “generalized testimony” where defendant’s

aim was to “implicitly apply the[] principles [offered by the

expert] to the specifics of the case”).

Moreover, even if the Court were persuaded that Dr.

Finkelman offers generalized testimony that could be helpful to

the issue of class certification, plaintiffs have failed to show

that Dr. Finkelman’s testimony is, at bottom, reliable. As

explained above, Dr. Finkelman does not cite any studies or

43 other data supporting his opinions, and he did not attempt to

measure the degree of subjectivity in Amtrak’s hiring,

promotion, or disciplinary decisions. Finkelman Dep., ECF No.

319-3 at 27. Moreover, Dr. Finkelman does not account for a host

of information, some of which he admits is relevant to the very

question he aims to answer. Id. at 22-23, 25, 45. Plaintiffs

argument that the Court should accept Dr. Finkelman’s testimony

simply because he is “a very knowledge psychologist” and “gets

it,” Pls.’ Roth/Finkelman Opp., ECF No. 345 at 27, is not only

conclusory, but also inadmissible ipse dixit in its most classic

form. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997);

Obrycka v. City of Chicago, 792 F. Supp. 2d 1013, 1025 (N.D.

Ill. 2011).

4. Dr. Finkelman’s Rebuttal Report Does Not Render His Analysis Reliable

Perhaps recognizing the deficiencies in Dr. Finkelman’s

report, plaintiffs finally contend that, “to the extent there

were shortcomings in Dr. Finkelman’s initial Expert Report, they

are removed by his Expert Rebuttal Report” which “specifically

cit[es] the Industrial-Organizational Psychology studies and

publications that support his opinions in this case.” Pls.’

Roth/Finkelman Opp., ECF No. 345 at 28. Although Dr. Finkelman’s

rebuttal expert report does cite academic literature purportedly

supporting his opinions, the rebuttal report fails to address

44 the fundamental problem with his initial expert report: Dr.

Finkelman did not review sufficient facts to develop his Amtrak-

specific expert opinions. Although Dr. Finkelman need not

“examine every document that was filed in this matter” to opine

on the adequacy of Amtrak’s human-resource management practices,

see Finkelman Rebuttal Rep., ECF No. 344-2 at 16, he cannot

simply rely on cherry-picked facts selected by plaintiffs’

counsel in forming his opinions. See, e.g., Shawler v. Ergon

Asphalt & Emulsions, Inc., No. 15-2599, 2016 WL 1019121, at *11

(E.D. La. Mar. 15, 2016) (excluding report as unreliable where

expert simply “cherry-pick[ed] evidence favorable to [plaintiff]

and dictate[d] what inferences and legal conclusions the Court

should draw from that evidence”).

D. Amtrak’s Motion To Exclude Mr. Roth’s Report and Testimony Is Denied

1. Mr. Roth’s Qualifications And Opinions

Thomas R. Roth is a financial and economic advisor to labor

organizations. See Roth Rep., ECF No. 304-2 ¶ 1. He holds a

bachelor of science in economics and industrial relations and a

master of science in labor and industrial relations. Roth Rep.

Ex. A, ECF No. 304-2 at 15. Mr. Roth has worked with labor

organizations in a variety of sectors, including — and perhaps

especially in — the railroad industry. Id. Specifically, he has

represented all fourteen standard railroad unions before the

45 Presidential Emergency Board and in arbitration proceedings. Id.

Indeed, Mr. Roth affirms that he has “been directly and

intimately involved in every round of collective bargaining at

Amtrak since 1978.” Decl. & Expert Rebuttal Rep. of Thomas R.

Roth (“Roth Rebuttal Rep.”), ECF No. 344-1 ¶ 2. Currently, he is

President of Labor Bureau Inc., a private-consulting firm that

provides professional services in labor-relations matters. Roth

Rep. Ex. A, ECF No. 304-2 at 15.

In his expert report, Mr. Roth classifies the seventeen

different collective-bargaining units at Amtrak into five

“functional categories” or “craft groups” that he contends

“mirror Amtrak’s management structure.” Roth Rep., ECF No. 304-2

¶¶ 8-15. He explains that these five functional groups share

common work sites and supervision, along with certain terms in

their collective-bargaining agreements. Id. ¶¶ 21-36. Based on

these observations, Mr. Roth opines that “it makes sense” to

analyze Amtrak’s process for hiring, promoting, and disciplining

its employees by these functional groups. Dep. of Thomas R. Roth

(“Roth Dep.”), ECF No. 329-3 at 52, 53-54. Mr. Roth’s opinions

are based on his personal experience with Amtrak and the labor

organizations representing its workforce, his general knowledge

of Amtrak’s operation and the railroad industry, a review of

certain Amtrak collective bargaining agreements, and “other

pertinent statistical information” maintained by Mr. Roth or his

46 staff. Roth Rep. ECF No. 304-2 ¶ 2; Roth Dep., ECF No. 329-3 at

5.

2. Mr. Roth’s Opinions Are Reliable

Amtrak argues that Mr. Roth’s report and testimony should

be excluded because they are unreliable. See Def.’s Mem. in

Supp. of Mot. to Exclude Roth (“Def.’s Roth Mem.”), ECF No. 329-

1 at 12-18. First, Amtrak complains that Mr. Roth did not review

any pleadings, 30(b)(6) testimony, other expert reports, Amtrak

organizational charts, descriptions of the reporting structure

at Amtrak, or a host of documents related to specific employment

decisions made at Amtrak with respect to plaintiffs. Id. at 14-

15. For example, Amtrak points out that Mr. Roth failed to

review all the collective-bargaining agreements, instead just

reviewing “one [collective-bargaining agreement] per union” even

though some unions “have multiple agreements based on

geographical location . . . and . . . have had several

applicable agreements during the alleged class period.” Id. at

13. Second, Amtrak argues that Mr. Roth’s classifications are

not reliable because Mr. Roth acknowledged during his deposition

that the functional categories may not “neatly” describe the

range of employees in each group. Id. at 16-17. And third,

Amtrak contends that Mr. Roth ignored contradictory information

and focused only on purported commonalities in examining the

collective-bargaining agreements. Id. at 17-18.

47 Plaintiffs respond that Mr. Roth appropriately relied on

his “deep, thorough, and encyclopedic” knowledge of the railroad

industry, Amtrak’s unions, and collective-bargaining agreements

in forming his opinions with respect to the functional

categories. Pls.’ Roth/Finkelman Opp., ECF No. 345 at 12-13. To

this end, plaintiffs point out that Amtrak’s criticism that Mr.

Roth should have “reviewed each and every collective bargaining

agreement” rings hollow given that Mr. Roth “was an active

participant in negotiating those same collective bargaining

agreements.” Id. at 13. In addition, plaintiffs argue that,

notwithstanding Amtrak’s arguments to the contrary, Mr. Roth

does not purport to opine in his initial expert report that the

five functional groups should be used to analyze “every

selection decision, discipline decision, and hostile work

environment claim for virtually every unionized employee” at

Amtrak over the class period. Id. at 17. Rather, plaintiffs

claim that Mr. Roth’s report does nothing more than “set[] forth

the existence, nature, and significance of the Craft Groups at

Amtrak.” Id. Finally, plaintiffs contend that Amtrak’s

complaints about Mr. Roth’s treatment of variations between

craft groups do nothing to undermine Mr. Roth’s opinion

regarding the similarities between the craft groups. Id. at 18.

The Court finds that Amtrak’s objections go to the weight

to be given to Mr. Roth’s testimony and not its reliability.

48 Amtrak does not attack Mr. Roth’s qualifications, and the Court

finds that Mr. Roth is certainly qualified “by knowledge, skill,

experience, training, or education.” Fed. R. Evid. 702. Indeed,

as Mr. Roth’s rebuttal report makes clear, he has “direct and

thorough” knowledge of collective bargaining in the railroad

industry and is “specifically” knowledgeable about the craft

structure that he discusses in his report. Roth Rebuttal Rep.,

ECF No. 344-1 at 2.

Moreover, Amtrak has not demonstrated that Mr. Roth’s

failure to review certain materials — namely, pleadings,

depositions, other expert reports, personnel files, job

descriptions, or the entire universe of collective-bargaining

agreements pertaining to Amtrak unions — has rendered his

opinions regarding the structure of craft groups at Amtrak so

unreliable as to be excluded. See Joy v. Bell Helicopter

Textron, Inc., 999 F.2d 549, 567 (D.C. Cir. 1993) (admission of

expert testimony “does not constitute an abuse of discretion

merely because the factual bases for an expert’s opinion are

weak”); Stryker Spine v. Biedermann Motech GmbH, 684 F. Supp. 2d

68, 101 (D.D.C. 2010) (expert’s failure to review certain

records did not render his opinion unreliable where his opinions

were based “on his expertise in the relevant field”).

Mr. Roth’s opinions stand in contrast to those offered by

Dr. Finkelman. Whereas Dr. Finkelman’s reliance on unverified

49 summaries of cherry-picked deposition testimony provided to him

by plaintiffs’ counsel rendered the foundation of his testimony

unreliable, Mr. Roth merely relied on fewer “facts” than Amtrak

prefers. Amtrak is free to challenge the factual bases of Mr.

Roth’s opinions through “[v]igorous cross-examination” and

“presentation of contrary evidence,” which are “the traditional

and appropriate means of attacking shaky but admissible

evidence.” Daubert, 509 U.S. at 596. Moreover, the Court can

determine what weight to afford Mr. Roth’s opinions as part of

its class-certification analysis. See In re Rail Freight Fuel

Surcharge Antitrust Litig., No. 07-0489, 2017 WL 5311533, at *27

(D.D.C. Nov. 13, 2017) (“The Court may admit expert opinion even

where — as here — the factual bases for the opinion are weak.

The Court will determine what weight to afford [the expert’s]

opinion, given its limited support, under Rule 23.”).

3. Mr. Roth’s Opinions May Be Relevant

Amtrak also argues that, even if Mr. Roth’s testimony is

reliable, it should still be excluded because “Mr. Roth has no

basis for concluding that the groupings he identifies are

relevant to the claims at issue in this case.” Def.’s Roth Mem.,

ECF No. 329-1 at 19. In particular, Amtrak argues that the

functional groups set forth in Mr. Roth’s report “are in no way

based upon the manner in which Amtrak managers make selection

and discipline decisions” but instead only relate to “collective

50 bargaining issues.” Id. at 18-19. Contrary to Amtrak’s

contentions, the Court finds that Mr. Roth’s testimony is

“sufficiently tied to the facts of this case” such that it will

aid the factfinder in resolving a factual dispute. Ambrosini v.

Labarraque, 101 F.3d 129, 134 (D.C. Cir. 1996). According to Mr.

Roth, the functional categories are, in fact, appropriate for

analyzing hiring, promotion, and discipline processes and

procedures at Amtrak. See Roth Dep., ECF No. 329-3 at 52 (hiring

procedures and promotion process); id. at 53-54 (disciplinary

procedures). The parties’ disagreements as to these conclusions

go to the weight to be given the evidence and not its

admissibility. See Ambrosini, 101 F.3d at 140 (D.C. Cir. 1996)

(“Daubert instructs that the admissibility inquiry focuses not

on conclusions, but on approaches[.]”).

In short, the Court finds that Mr. Roth’s opinions are

reliable and relevant to plaintiffs’ class-certification motion

and should not be excluded.

E. Amtrak’s Motion To Exclude Dr. Bradley And Dr. Fox’s Report and Testimony Is Denied

1. Dr. Bradley And Dr. Fox’s Qualifications And Opinions

Dr. Edwin L. Bradley, Jr. and Dr. Liesel M. Fox are

statisticians at Quantitative Research Associates, a firm that

provides statistical and computing consulting services. See

Bradley/Fox Rep., ECF No. 304-1 at 2-3. Dr. Bradley and Dr. Fox

51 were asked to examine the hiring of external job applications,

selection of internal candidates for promotions and transfers,

and the disciplinary charges levied and resolved against Amtrak

employees to ascertain the differences in hiring, promotion, and

discipline rates between African-American and non-African-

American employees. Id. at 4. The purpose of this analysis was

to determine “whether the policies and practices used by Amtrak

have had adverse impact against its African-American . . .

employees” between April 4, 1996 and December 31, 2008 (the

“Analysis Period”). Id.

To conduct their analysis, Dr. Bradley and Dr. Fox relied

on certain databases that were prepared by Amtrak from

electronic data sources at Amtrak (“Joint Databases”). Id. at 5-

7. The Joint Databases provided information regarding hiring and

termination dates, rates of pay, changes in job assignment,

race, records of disciplinary violations, and applicant pools

for select vacancies. Id. Dr. Bradley and Dr. Fox assigned each

employee with a record in the Joint Database to one of four

craft groups based on the employee’s union membership. Id. at 6.

Dr. Bradley testified that he was instructed to aggregate the

data based on these craft groups by plaintiffs’ counsel. Bradley

Dep., ECF No. 331-3 at 5.

In analyzing hiring and promotion decisions, Dr. Bradley

and Dr. Fox divided their analysis into two groups: vacancies

52 for which they had “applicant flow data” — i.e., information

regarding pools of individuals who actually applied for

vacancies between July 2003 and December 2008 — and vacancies

for which no such data existed. Bradley/Fox Rep., ECF No. 304-1

at 8-16. For those vacancies for which applicant flow data did

exist, Dr. Bradly and Dr. Fox compared the selection for each

job opening against the specific pool of candidates who applied

for the opening, after removing candidates who were not

minimally qualified for the position because they, for example,

failed a drug screen or failed a relevant skills test. Id. at 8-

9. Dr. Bradley testified that, in his analysis of hiring and

promotion decisions, he did not control for other types of

qualifications that could conceivably influence a hiring or

promotion decision:

Q. But you don’t try to analyze when you’re trying to figure out whether or not a component or the overall selection process has adverse impact, you don’t consider the types of qualifications that a decision-maker might have looked at when making the decision, like experience and other types of qualifications?

A. No, I’m not thinking of that. I’m looking only at minimum qualifications.

Bradley Dep., ECF No. 331-3 at 28; see also id. at 56-57

(testifying that he did not take educational attainment into

consideration in evaluating hiring or promotion decisions). Dr.

Bradley also admitted that, although internal candidates were

53 “always preferred” in the employment selection process, he did

not control for that in his analysis of Amtrak’s selection

process. Id. at 23-24. Based on this analysis, Dr. Bradley and

Dr. Fox found that there were a total of 6,193 individuals

selected for vacancies for which there was Applicant Flow Data

across all craft groups. Bradley/Fox Rep., ECF No. 304-1 at 10.

Of those, only 2,335 individuals were African-American

individuals, even though one would have expected 2,589 African-

American selections based on the proportion of African-American

candidates in the pool of applicants. Id.

For the majority of vacancies — approximately 49,000 of

them — there was no Applicant Flow Data. Id. at 11. For those

vacancies, Dr. Bradley and Dr. Fox analyzed selections using

proxy benchmarks based on the vacancies for which applicant data

did exist to represent African-American availability. Id. at 11-

12. The same extrapolated benchmark was applied to every

internal selection or external hire decision within a particular

craft group. Id. 11-14, 26-27. For the vacancies for which

Amtrak made external hires, Dr. Bradley and Dr. Fox found that

there were a total of 10,074 individuals selected across all

craft groups; of these, only 3,577 of the individuals selected

were African-American, although 4,312 African-American

selections were expected based on the benchmarks. Id. at 13.

With respect to positions that were eventually filled through

54 internal promotions rather than external hires, Dr. Bradley and

Dr. Fox found that there were a total of 39,548 vacancies across

all craft groups. Id. at 14. Of those, 12,834 were filled by

African-American individuals, even though one would have

expected 14,899 African-American selections. Id. In other words,

Dr. Bradley and Dr. Fox concluded that African-American

individuals were hired less and selected for fewer competitive

promotions than their non-African-American counterparts.

Finally, Dr. Bradley and Dr. Fox analyzed disciplinary

charges and resulting outcomes for Amtrak employees. Id. at 16-

17. They found that there were 10,796 employees who were issued

a total of 24,136 disciplinary charges during the Analysis

Period. Of those charges, 10,651 charges were issued to 4,175

African-American employees, even though one would expect only

8,924 charges to be issued to that group if the disciplinary

process was race-neutral. Id. at 16. Dr. Bradley and Dr. Fox

also found that African-American employees were terminated and

received formal reprimands or deferred suspensions at

statistically higher rates than non-African-American employees.

Id. at 17. Based on their review, Dr. Bradley and Dr. Fox

concluded that African-American employees were charged with

disciplinary violations at a rate higher than their non-African-

American counterparts. Id.

55 2. The Bradley/Fox Report Is Sufficiently Reliable

Amtrak does not dispute that Dr. Bradley and Dr. Fox are

qualified to offer statistical expert testimony. Instead, Amtrak

argues that the Court should not consider Dr. Bradley and Dr.

Fox’s expert report and testimony because their opinions are

unreliable. Amtrak’s argument focuses on Dr. Bradley and Dr.

Fox’s use of extrapolated benchmarks to assess racial

disparities in Amtrak’s hiring and promotional decisions. Def.’s

Mem. in Supp. Mot. to Exclude Bradley and Fox (Def.’s

Bradley/Fox Mem.”), ECF No. 331-1 at 26-32. Specifically, Amtrak

argues that, before extrapolating benchmarks for African-

American hiring and promotion from the applicant flow data, Dr.

Bradley and Dr. Fox were required to ensure that the applicant

flow data was representative of the applicant pool to which the

extrapolated benchmarks would apply. Id. at 28-29. Amtrak also

argues that Dr. Bradley and Dr. Fox did not assess whether the

sample size was sufficient to extrapolate the benchmarks. Id. at

29. Finally, Amtrak contends that Dr. Bradley and Dr. Fox erred

by treating each benchmark as an “exact, known value” rather

than “a sample estimate within a margin of error.” Id. at 29-30.

While Amtrak points to potential problems with Dr. Bradley

and Dr. Fox’s extrapolation techniques, it fails to establish

that these experts used a methodology so unreliable as to

warrant exclusion of their report. There is no evidence that Dr.

56 Bradley and Dr. Fox cherry-picked the data points in

constructing the benchmarks for African-American availability

where that data was not kept in the regular course by Amtrak. It

is, of course, clear that the experts’ extrapolated benchmarks

in areas where no applicant flow data was available is less

precise than Amtrak’s actual applicant flow data. It is also

clear, however, that plaintiffs may rely on reliable estimates

when actual data is unavailable. See General Elec. Co. v.

Joiner, 522 U.S. 136, 146 (1997) (stating the well-established

principle that “[t]rained experts commonly extrapolate from

existing data”); see generally Ramona L. Paetzold & Steven L.

Willborn, The Statistics of Discrimination: Using Statistical

Evidence in Discrimination Cases § 4.03 (2014) (describing the

use of proxy data when actual data is unavailable or

unreliable). It may be that Dr. Bradley and Dr. Fox’s sample

size of approximately 6,200 was too small, and perhaps a larger

sample would have revealed fewer differences between the hiring

and promotion of African-American individuals as compared to

their non-African-American counterparts. Such a criticism can be

brought out in cross-examination and does not render Dr. Bradley

and Dr. Fox’s methodology so unreliable that it should not be

admitted. See, e.g., Equal Emp’t Opportunity Comm’n v. Texas

Roadhouse, Inc., 215 F. Supp. 3d 140, 155 (D. Mass. 2016) (“Even

when statistical analysis has involved general population census

57 data to show discriminatory intent, it has not been precluded on

Fed. R. Evid. 702 grounds.”).

3. The Bradley/Fox Report Has Limited Probative Value

Amtrak spends the bulk of its brief arguing that

plaintiffs’ statistical evidence is irrelevant to its class-

certification motion because Dr. Bradley and Dr. Fox did not

study a particular employment practice or the decisions of any

common decision-maker. See Def.’s Bradley/Fox Mem. ECF No. 331-1

at 9-26. As such, Amtrak argues that Dr. Bradley and Dr. Fox’s

analysis will be unhelpful to the trier of fact because these

experts cannot opine that any specific employment practice

caused the alleged statistical disparities. Id. at 16. Amtrak

notes that plaintiffs’ experts could have utilized the job files

produced in discovery that contained candidate records,

applications, selection criteria, rating sheets, and other

records relating to each of the selections contained in the

Joint Database. Id. at 7, 11, 36.

Plaintiffs respond that the components of Amtrak’s

selection process “were not able to be separated for analysis

because they were interwoven and overlapping parts of a singular

process.” Pls.’ Opp. to Mot. to Exclude Bradley and Fox, ECF No.

342 at 10-15. Plaintiffs further claim that data to do such an

analysis was not available. Id. at 10, 15-21.

58 Plaintiffs bear the initial burden of making out a prima

facie case of discrimination. Cooper v. Fed. Reserve Bank of

Richmond, 467 U.S. 867, 874 (1984). And because plaintiffs

allege a system-wide pattern or practice of discrimination,

plaintiffs have “to prove more than the mere occurrence of

isolated or ‘accidental’ or sporadic discriminatory acts.” Int’l

Bhd. of Teamsters v. United States, 431 U.S. 324, 336 (1977).

Rather, plaintiffs have “to establish by a preponderance of the

evidence” that racial discrimination was Amtrak’s “standard

operating procedure — the regular rather than the unusual

practice.” Id.

In a case such as this, then, statistical data is relevant

because it can be used to establish a general discriminatory

pattern in an employer’s hiring or promotion practices. As the

Supreme Court explained,

[s]tatistics showing racial or ethnic imbalance are probative . . . because such imbalance is often a telltale sign of purposeful discrimination; absent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a work force more or less representative of the racial and ethnic composition of the population in the community from which the employees are hired. Considerations such as small sample size may, of course, detract from the value of such evidence, and evidence showing that the figures for the general population might not accurately reflect the pool of qualified job applicants would also be relevant.

59 Int’l Bhd. of Teamsters, 431 U.S. at 340. Importantly, in most

cases in which plaintiffs allege a disparate impact, plaintiffs

must do more than simply “show that there are statistical

disparities in the employer’s work force.” Watson v. Fort Worth

Bank & Trust, 487 U.S. 977, 994 (1988). Rather, plaintiffs are

responsible for “isolating and identifying the specific

employment practices that are allegedly responsible for any

observed statistical disparities.” Id.

In this respect, plaintiffs’ statistical evidence suffers

from a number of shortcomings. For example, Dr. Bradley admitted

that he did not study whether a particular employment practice

at Amtrak caused an adverse impact. Bradley Dep., ECF No. 331-3

at 27. Moreover, although plaintiffs’ claim that Amtrak’s

employment practices are “incapable of being separated for

analysis” and therefore subject to a bottom-line analysis as to

disparate impact, 42 U.S.C. § 2000e—2(k)(1)(B)(i), Dr. Bradley

and Dr. Fox’s report does nothing to demonstrate this fact.

Their report does not grapple with the data contained in

Amtrak’s job files or explain how it was inadequate to render a

statistical analysis as to a particular employment practice.

Nonetheless, although the statistical study proffered by

plaintiffs’ experts may, ultimately, be inadequate to satisfy

plaintiffs’ burden on the merits, the Court declines to exclude

it as irrelevant at this time. As other courts have found, a

60 “statistical study may fall short of proving the plaintiff’s

case, but still remain relevant to the issues in dispute.” Obrey

v. Johnson, 400 F.3d 691, 695 (9th Cir. 2005). For example, in

Obrey, the defendant challenged the admission of the plaintiff’s

expert report because, inter alia, the statistical analysis was

irrelevant to plaintiff’s claims that the defendant engaged in

discriminatory hiring practices. Id. at 694. The statistical

analysis in that case only analyzed the race of the managers

selected by the employer as compared to the race of those who

applied for managerial positions — and, just like in this case,

did not take into account the relative qualifications of the

applicant pool or evaluate any specific employment practice. Id.

at 694-698. While this evidence “by itself” could not

“constitute proof that the [employer] has discriminated against

[the plaintiff],” the court explained that “it should have been

admitted for whatever probative value it had.” Id. at 697. In

other words, “defendant’s objections to the admission of [the

statistical evidence] went to weight and sufficiency rather than

admissibility.” Id.; see also, e.g., Puffer v. Allstate Ins.

Co., 255 F.R.D. 450, 462 (N.D. Ill. 2009) (although plaintiff’s

statistical expert “fail[ed] to link any pay differential that

she found to any [employer] policy or practice,” that deficiency

did not render the report “irrelevant” but rather simply limited

61 its probative value). Accordingly, the Court declines to exclude

Dr. Bradley and Dr. Fox’s testimony or report.

IV. EXCLUSION OF OTHER EVIDENCE

Amtrak has also moved to strike portions of the

declarations submitted by plaintiffs in support of their request

for class certification. Def.’s Mot. to Strike Decls. Of Pls.,

ECF No. 330. Plaintiffs oppose that motion, arguing both that

the admissibility standards on which Amtrak relies are

inapplicable at the class-certification stage, and that, in any

event, the evidence is admissible. Pls.’ Opp. to Mot. to Strike

Decls. Of Pls., ECF No. 340.

Although the Supreme Court has not directly addressed the

issue of whether evidence proffered in support of a motion for

class certification must be admissible if it is to be considered

by the court in determining class certification, its dicta in

Eisen v. Carlisle & Jacuelin, 417 U.S. 156 (1974), led some

courts to find that lax evidentiary standards were appropriate. 3

3 On September 14, 2017, a petition for writ of certiorari was filed presenting this precise question – to wit, “[w]hether a district court may certify a class action based on information that does not meet the standards of admissibility set forth in the Federal Rules of Evidence and Civil Procedure.” See Notice of Filing of Petition for a Writ of Certiorari, Taylor Farms Pac., Inc. v. Pena, No. 15-15965 (9th Cir. Sept. 14, 2017), ECF No. 57 Ex. A at 2. The Supreme Court denied the petition for writ of certiorari on February 20, 2018. See Taylor Farms Pacific, Inc. v. Pena, No. 17-395.

62 In Eisen, the Supreme Court emphasized that a court’s decision

at the class-certification stage “is not accompanied by the

traditional rules and procedures applicable to civil trials.”

Id. at 178. This statement came in the context of the Court’s

oft-cited conclusion — arrived at in the course of overruling a

district court’s decision to direct a defendant to cover some of

the costs of providing notice to the class on the basis that

plaintiffs were likely to succeed on the merits — that “[w]e

find nothing in either the language or history of Rule 23 that

gives a court any authority to conduct a preliminary inquiry

into the merits of a suit in order to determine whether it may

be maintained as a class action.” Id. at 177.

Relying upon the statement regarding the absence of

“traditional rules and procedures” at the class-certification

stage, the D.C. Circuit held in an unpublished opinion that the

rules of evidence do not apply at the class-certification stage.

See In re Rand Corp., No. 02-8007, 2002 WL 1461810, at *1 (D.C.

Cir. July 8, 2002) (“[T]he propriety of a district court’s

refusal to scrutinize for admissibility and probative value

evidence proffered to demonstrate that the requirements of

Federal Rule of Civil Procedure 23(a) are satisfied is well-

settled”). District courts, as plaintiffs recite, came to

similar conclusions. See, e.g., Disability Rts. Council v. Wash.

Metro. Area Transit Auth., 239 F.R.D. 9 (D.D.C. 2006).

63 The Supreme Court’s decisions in Dukes and Comcast,

however, have since shifted this landscape. In Dukes, the

Supreme Court made clear that “[a] party seeking class

certification must affirmatively demonstrate his compliance with

[Rule 23] — that is, he must be prepared to prove that there are

in fact sufficiently numerous parties, common questions of law

or fact, etc.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350

(2011). The Court further explained that the “rigorous analysis”

a district court must perform of a plaintiffs’ claim for

certification “‘[f]requently . . . will entail some overlap with

the merits of the plaintiff’s underlying claim.’” Id. at 351.

The Court elaborated:

A statement in one of our prior cases, Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974), is sometimes mistakenly cited to the contrary: ‘We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.’ But in that case, the judge had conducted a preliminary inquiry into the merits of a suit, not in order to determine the propriety of certification under Rule 23(a) and (b) . . . but in order to shift the cost of notice required by Rule 23(c)(2) from the plaintiff to the defendants. To the extent the quoted statement goes beyond the permissibility of a merits inquiry for any other pretrial purpose, it is the purest dictum and is contradicted by our other cases.

Id. 351 n.6.

64 In Comcast, the Supreme Court reiterated the importance of

considering all merits questions that may bear on any of the

Rule 23 factors. See Comcast Corp. v. Behrend, 569 U.S. 27, 35

(2013). In so doing, the Court reiterated the requirement that a

party seeking certification affirmatively demonstrate compliance

with Rule 23 “through evidentiary proof.” Id. at 33. The D.C.

Circuit has recognized that, post-Comcast, “[i]t is now

indisputably the role of the district court to scrutinize the

evidence before granting certification, even when doing so

‘requires inquiry into the merits of the claim.’” In re Rail

Freight Fuel Surcharge Antitrust Litig., 725 F.3d 244, 253 (D.C.

Cir. 2013) (quoting Comcast, 569 U.S. at 35).

These cases do not address the precise question before the

Court — i.e., whether class-certification evidence must meet the

standards of admissibility as set forth in the Federal Rules of

Evidence. Moreover, although the Supreme Court granted

certiorari in Comcast to decide “[w]hether a district court may

certify a class action without resolving whether the plaintiff

class had introduced admissible evidence,” it ultimately did not

decide that question because defendants had failed to raise an

appropriate objection on that ground before the trial court and

thus forfeited the issue. Comcast, 569 U.S. at 33 n.4. These

decisions suggest, however, that when a party objects to

evidence provided in support of class certification, a district

65 court must assess the admissibility of that evidence before

certifying a class. As such, the Court concludes that, to the

extent it relies on any controverted portions of plaintiffs’

proffered declarations to support its class-certification

ruling, it must first address Amtrak’s evidentiary objections. 4

Accordingly, in the course of its analysis, the Court will

resolve Amtrak’s objections to the portions of plaintiffs’

declarations that the Court relies on in reaching its class-

certification decision. To the extent the Court does not rely on

the declarations, the Court will not address Amtrak’s

evidentiary objections, and Amtrak must re-raise them in future

proceedings.

4 Although this holding conflicts with the D.C. Circuit’s unpublished decision in In re Rand, No. 02-8007, 2002 WL 1461810, at *1 (D.C. Cir. July 8, 2002), the Court concludes that it is not bound by that decision. For one, unpublished decisions “‘should not strictly bind panels’ of the court of appeals and are often not ‘suitable for governing future cases’ given that they neither reach the merits nor benefit from oral argument.” Martin v. Dist. of Columbia, 78 F. Supp. 3d 279, 308 n.36 (D.D.C. 2015) (quoting In re Grant, 635 F.3d 1227, 1232 (D.C. Cir. 2011)). The persuasiveness of such a disposition is further undermined where, as here, subsequent doctrinal changes have significantly altered the landscape. See id. (noting as an additional reason not to be bound by an unpublished disposition the fact that “the tides have changed in the last seventeen years” regarding the legal doctrine at issue).

66 V. CLASS CERTIFICATION

“The class action is ‘an exception to the usual rule that

litigation is conducted by and on behalf of the individual named

parties only.’” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013)

(citation omitted). Class certification is governed by Federal

Rule of Civil Procedure 23, which requires a plaintiff to

demonstrate that the requirements of Rule 23(a) are met and that

the class is maintainable pursuant to one of Rule 23(b)’s

subdivisions. See Richards v. Delta Air Lines, Inc., 453 F.3d

525, 529 (D.C. Cir. 2006).

The D.C. Circuit has made clear that class certification

“is far from automatic.” In re Rail Freight Fuel Surcharge

Antitrust Litig., 725 F.3d 244, 249 (D.C. Cir. 2013). Rather, a

plaintiff seeking certification of a class must “affirmatively

demonstrate his compliance” with the requirements of Rule 23.

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). This

is done not by pleading compliance with Rule 23, but by

demonstrating “compliance . . . in fact.” Id. At times,

determining whether the proponent of a class has satisfied the

requirements of Rule 23 “resembles an appraisal of the merits,

for ‘it may be necessary for the court to probe behind the

pleadings before coming to rest on the certification question.’”

In re Rail Freight Fuel Surcharge Antitrust Litig., 725 F.3d at

244 (citation omitted). The Court may not, however “consider

67 merits questions that do not overlap with Rule 23’s

requirements.” Coleman through Bunn v. Dist. of Columbia, 306

F.R.D. 68, 77 (D.D.C. 2015). “Ultimately, the district court’s

determination must rest on a ‘rigorous analysis’ to ensure that

all the requirements are satisfied, and ‘[a]ctual, not presumed,

conformance’ with Rule 23 is indispensable.” Burton v. Dist. of

Columbia, 277 F.R.D. 224, 228 (D.D.C. 2011) (citation omitted). 5

5 Because Amtrak filed both an opposition to plaintiffs’ motion for class certification and its motion for summary judgment on the same day, it bears noting that “the order of disposition of motions for summary judgement and class certification” is “a question of discretion for the trial court.” Curtin v. United Airlines, Inc., 275 F.3d 88, 92 (D.C. Cir. 2001). Rule 23(c)(1)(A) directs the court to determine “[a]t an early practicable time” whether to certify a class action, and “it is often more efficient and fairer to the parties to decide the class question first,” Curtin, 275 F.3d at 92; see also Am. Pipe & Const. Co. v. Utah, 414 U.S. 538, 547-49 (1974) (noting that the 1966 amendment to Rule 23 requiring a court to decide the class-certification question “as soon as practicable” was designed, in part, to curtail the abusive practice of one-way intervention). The advisory committee notes to Rule 23 recognize, however, that a decision on summary judgment may be appropriate prior to a certification ruling in certain circumstances. See Fed. R. Civ. P. 23 advisory committee notes (“Other considerations may affect the timing of the certification decision. The party opposing the class may prefer to win dismissal or summary judgment as to the individual plaintiffs without certification and without binding the class that might have been certified.”). Here, the Court will follow the ordinary course and will first address plaintiffs’ motion for a class certification before addressing the legal merits of plaintiffs’ claims under section 1981 and Title VII.

68 A. Plaintiffs’ Proposed Classes

The named plaintiffs in this case are seventy-one African-

American Amtrak employees, former Amtrak employees, or

applicants for employment at Amtrak. Plaintiffs move to certify

the following classes or, in the alternative, subclasses:

(1) All Black employees of Amtrak who are represented for purposes of collective bargaining by any labor union (except those who have worked only in the Northeast Corridor and are represented for purposes of collective bargaining by the Pennsylvania Federation of the Brotherhood of Maintenance of Way Employees) (herein, “Black CBA employees”) who, since April 4, 1996, have been discriminated against because of their race or color in regard to competitive promotion selections; and/or in the alternative,

(a) a subclass of all Black CBA employees who, since April 4, 1996, have worked for Amtrak in any of the Shop Crafts who raise such promotion selection claims;

(b) a subclass of all Black CBA employees who, since April 4, 1996, have worked for Amtrak in any of the Engineering Crafts who raise such promotion selection claims;

(c) a subclass of all Black CBA employees who, since April 4, 1996, have worked for Amtrak in any of the Operating and Police Crafts who raise such promotion selection claims;

(d) a subclass of all Black CBA employees who, since April 4, 1996, have worked for Amtrak in any of the Clerical and On-Board Services Crafts who raise such promotion selection claims;

(2) All Black CBA employees of Amtrak who, since April 4, 1996, have been exposed to a racially hostile work environment, as embodied

69 in racial harassment and/or racial discrimination in regard to training, job assignments, work assignments, non- competitive transfers, scheduling, and other terms and conditions of employment; and/or in the alternative,

(a) a subclass of all Black CBA employees who, since April 4, 1996, have worked for Amtrak in any of the Shop Crafts and have been exposed to such a racially hostile work environment;

(b) a subclass of all Black CBA employees who, since April 4, 1996, have worked for Amtrak in any of the Engineering Crafts and have been exposed to such a racially hostile work environment;

(c) a subclass of all Black CBA employees who, since April 4, 1996, have worked for Amtrak in any of the Operating and Police Crafts and have been exposed to such a racially hostile work environment;

(d) a subclass of all Black CBA employees who, since April 4, 1996, have worked for Amtrak in any of the Clerical and On-Board Services Crafts and have been exposed to such a racially hostile work environment;

(3) All Black CBA employees of Amtrak who, since April 4, 1996, have been discriminated against in regard to discipline or termination; and/or in the alternative,

(a) a subclass of all Black CBA employees who, since April 4, 1996, have worked for Amtrak in any of the Shop Crafts and have been discriminated against in regard to discipline or termination;

(b) a subclass of all Black CBA employees who, since April 4, 1996, have worked for Amtrak in any of the Engineering Crafts and have been discriminated against in regard to discipline or termination;

70 (c) a subclass of all Black CBA employees who, since April 4, 1996, have worked for Amtrak in any of the Operating and Police Crafts and have been discriminated against in regard to discipline or termination;

(d) a subclass of all Black CBA employees who, since April 4, 1996, have worked for Amtrak in any of the Clerical and On-Board Services Crafts and have been discriminated against in regard to discipline or termination; and

(4) All Black CBA who have applied to work for Amtrak for any position(s) that would be represented for purposes of collective bargaining by any labor union since April 4, 1996, and been denied employment because of their race.

Pls.’ Mot. for Class Cert., ECF No. 303 at 1-3.

B. Plaintiffs’ Proposed Classes And Subclasses Are Impermissibly Fail-Safe

Although not specifically mentioned in Rule 23, there is an

“implied requirement” that the class be “adequately defined” and

“clearly ascertainable” before it can be certified. Thorpe v.

Dist. of Columbia, 303 F.R.D. 120, 139 (D.D.C. 2014) (citation

omitted). This “common-sense requirement” demands that the

plaintiff “be able to establish [that] the general outlines of

the membership of the class are determinable at the outset of

the litigation.” Id. (citation omitted); see also, e.g., Johnson

v. Dist. of Columbia, 248 F.R.D. 46, 52 (D.D.C. 2008) (“It is

axiomatic that for a class action to be certified a ‘class’ must

exist.”); In re Rail Freight Fuel Surcharge Antitrust Litig.,

No. 07-0489, 2017 WL 5311533, at *51 (D.D.C. Nov. 13, 2017)

71 (explaining that an “implied” requirement of Rule 23 is that the

putative class be “‘sufficiently defined so as to be

identifiable as a class’”) (citation omitted). “Accordingly, a

class may be certified only when ‘an individual would be able to

determine, simply by reading the [class] definition, whether he

or she [is] a member of the proposed class.’” Artis v. Yellen,

307 F.R.D. 13, 23 (D.D.C. 2014) (citation omitted).

One aspect of this requirement that the class be adequately

defined is that it not be a “fail-safe class” — i.e., that the

class definition not depend on the merits of the underlying

claim. See, e.g., McCaster v. Darden Rests., Inc., 845 F.3d 794,

799 (7th Cir. 2017) (a fail-safe class is one that “‘is defined

so that whether a person qualifies as a member depends on

whether the person has a valid claim’”) (citation omitted);

Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 538 (6th Cir.

2012) (defining a fail-safe class as “a class that cannot be

defined until the case is resolved on its merits”). A fail-safe

class is impermissible because “a class member either wins or,

by virtue of losing, is defined out of the class and is

therefore not bound by the judgment.” Messner v. Northshore

Univ. HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012). Moreover,

by “‘[u]sing a future decision on the merits to specify the

scope of the class,’” a fail-safe class definition “‘makes it

impossible to determine who in in the class until the case

72 ends.’” Artis v. Yellen, 307 F.R.D. 13, 24 (D.D.C. 2014)

(quoting Bolden v. Walsh Const. Co., 688 F.3d 893, 895 (7th Cir.

2012)); see also Williams v. Glickman, No. 95-1149, 1997 WL

33772612, at *4 (D.D.C. Feb. 14, 1997) (class not clearly

defined because, to ascertain class membership, the court would

be required to “answer several fact-intensive questions”).

Plaintiffs move to certify the following classes:

(1) All Black CBA employees who . . . have been discriminated against because of their race or color in regard to competitive promotion selections;

(2) All Black CBA employees who . . . have been exposed to a racially hostile work environment, as embodied in racial harassment and/or racial discrimination, in regard to training, job assignments, work assignments, non-competitive transfers, scheduling, and other terms and conditions of employment;

(3) All Black CBA employees who . . . have been discriminated against in regard to discipline or termination; and/or in the alternative,

(4) All Black CBA who have applied to work for Amtrak for any position(s) that would be represented for purposes of collective bargaining by any labor union . . . and been denied employment because of their race.

Pls.’ Mot. to Certify Class, ECF No. 303 at 1-3 (emphases

added).

Each of these proposed class definitions makes membership

in the class contingent on individualized merits determinations

as to whether the individual suffered discrimination because of

73 his race, was exposed to racial harassment and/or racial

discrimination, or was denied employment because of his race. In

other words, to determine whether any individual is a member of

one of these putative classes, the Court would be required to

answer a critical question that goes directly to the merits of

the litigation: did the individual suffer racial discrimination

at the hands of Amtrak?

Moreover, should the Court or a jury conclude that Amtrak’s

employment decisions were not based on race, plaintiffs’

proposed classes would contain no members. Each of the supposed

class members would then be free to file new lawsuits

attributing their adverse employment decisions to some other

impermissible criteria, thereby depriving the judgment of any

preclusive effect. See, e.g., Bolden v. Walsh Const. Co., 688

F.3d 893, 895 (7th Cir. 2012) (class defined as persons who did

not earn more “because of their race” made “it impossible to

determine who was in the class until the case ends,” creating

the prospect that, if the employer prevailed on the merits, any

former worker “could file a new suit, given that the losing

‘class’ lacked any members”); Lucas v. Vee Pak, Inc., 68 F.

Supp. 3d 870, 880 (N.D. Ill. 2014) (“All variations set forth in

the complaint beg the question of liability, in that the class

is made up of certain African—American workers who were not

hired ‘because of their race.’ It is therefore a ‘fail-safe’

74 class: ‘one that is defined so that whether a person qualifies

as a member depends on whether the person has a valid claim.’”)

(citation omitted).

The parties have failed to address these problems with

plaintiffs’ class definition, perhaps because the problems are

repairable. Plaintiffs could, for example, redefine their

classes so that membership is not contingent on whether the

individual suffered racial discrimination. Cf. Messner, 669 F.3d

at 825 (“Defining a class so as to avoid, on one hand, being

over-inclusive and, on the other hand, the fail-safe problem is

more of an art than a science. Either problem can and often

should be solved by refining the class definition rather than by

flatly denying class certification on that basis.”); In re

AutoZone, Inc., Wage & Hour Emp’t Practices Litig., 289 F.R.D.

526, 546 (N.D. Cal. 2012)(“Rather than denying certification on

the basis of the fail-safe definition, the Court would have

discretion here to redefine the class as ‘all employees who

sought and did not receive reimbursement for mileage,’ which

seems to avoid both ascertainability problems. This problem is

therefore not insurmountable.”). Accordingly, in the interest of

judicial economy, the Court will address the parties’ arguments

regarding the requirements of Rule 23.

75 C. Plaintiffs Have Failed to Demonstrate That The Proposed Class Action Satisfies The Commonality Requirement Of Rule 23(a)

A plaintiff seeking class certification must establish that

“there are questions of law or fact common to the class.” Fed.

R. Civ. P. 23(a)(2). The Supreme Court’s decision in Wal-Mart

Stores, Inc. v. Dukes, 564 U.S. 338 (2011), “changed the

landscape” that the district court must navigate when

considering whether a putative class action satisfies Rule

23(a)’s commonality requirement. D.L. v. Dist. of Columbia, 713

F.3d 120, 126 (D.C. Cir. 2013). In Dukes, the plaintiffs alleged

that Wal-Mart discriminated against female employees by denying

them equal pay or promotions as compared with male employees.

564 U.S. at 343. Specifically, the plaintiffs claimed that their

local managers’ discretion over pay and promotions was exercised

disproportionately in favor of men, leading to an unlawful

disparate impact on, and disparate treatment of, female

employees. Id. at 344-45. The plaintiffs claimed that this

discrimination was “common to all Wal-Mart’s female employees”

and that “a strong and uniform ‘corporate culture’ permit[ted]

bias against women to infect, perhaps subconsciously, the

discretionary decisionmaking of each one of Wal-Mart’s thousands

of managers.” Id. at 345.

The district court certified a class consisting of Wal-

Mart’s female employees who “have been or may be subjected to

76 Wal-Mart’s challenged pay and management track promotions

policies and practices.” Id. at 346. The Court of Appeals for

the Ninth Circuit substantially affirmed, but the Supreme Court

reversed, denying class certification for failure to satisfy the

commonality requirement of Rule 23(a)(2). Id. at 345-59.

In so doing, the Supreme Court first explained that Rule

23’s commonality requirement “is easy to misread, since any

competently crafted class complaint literally raises common

‘questions.’” Id. at 349 (citation and internal quotation marks

omitted). Commonality requires more than common questions; it

requires “the plaintiff to demonstrate that the class members

‘have suffered the same injury.’” Id. at 350 (quoting Gen. Tel.

Co. v. Falcon, 457 U.S. 147, 157 (1982)). In other words, the

claims of the putative class members “must depend upon a common

contention” that is “of such a nature that it is capable of

classwide resolution” — i.e., “that determination of its truth

or falsity will resolve an issue that is central to the validity

of each one of the claims in one stroke.” Id. The Dukes

plaintiffs identified only a general policy “of allowing

discretion by local supervisors over employment matters” —

effectively “a policy against having uniform employment

practices.” Id. at 355. Resolution of the legality of any one

manager’s exercise of discretion, then, would have no bearing on

the legality of any other manager’s action, absent “some glue

77 holding the alleged reasons for all those decisions together.”

Id. at 351. The Supreme Court noted that such glue could be

provided “if the employer ‘used a biased testing procedure’” or

upon “‘[s]ignificant proof that an employer operated under a

general policy of discrimination.’” Id. at 353 (quoting Falcon,

457 U.S. 159 n.15).

Plaintiffs do not seriously contend that they can

demonstrate commonality under Falcon’s first scenario here.

While plaintiffs assert that “a biased testing procedure” need

not be limited to “paper-and-pencil tests” and suggest that

Amtrak’s “selection interview process, ratings, rank-orderings,

input from other managers, amorphous decision making, and the

disqualifying discipline criterion” all qualify, plaintiffs give

that argument short shrift, and with good reason. See Pls.’ Mem.

in Supp. of Mot. for Class Cert. (“Pls.’ Class Cert. Mem.”), ECF

No. 303 at 25. For one, plaintiffs nowhere explain how some of

these practices — for example, “amorphous decision making” or

seeking “input from other managers” before hiring or promoting

individuals — can be considered “non-subjective” criteria. Id.

Even if they had, plaintiffs do not allege, much less

demonstrate, that all members of the putative class were subject

to the same set of objective procedures or policies. To the

contrary, the evidence shows that the interview process,

assignment of ratings, and rank orderings varied depending on

78 the position and the panel of interviewers involved. See, e.g.,

Ray Decl., ECF No. 322-5 ¶¶ 11-41; Wu Decl., ECF No. 322-8 ¶ 4;

Allan Decl., ECF No. 321-3 ¶ 5.

Moreover, plaintiffs do not explain with any detail how any

such policies “operated in a biased way.” Burton v. Dist. of

Columbia, 277 F.R.D. 224, 229 (D.D.C. 2011) (plaintiffs

allegation that defendant “used a biased testing procedure” was

insufficient where plaintiffs provided no “detail about how

those examinations operated in a biased way”); see also Ross v.

Lockheed Martin Corp., 267 F. Supp. 3d 174, 197-98 (D.D.C.

2017)(despite plaintiffs’ assertion that defendant’s

“companywide evaluation method” resulted in employee ratings

that were “poorly correlated with job performance,” plaintiffs

did not provide “an account of how those procedures themselves

resulted in the racially disparate outcome that Plaintiffs have

observed in [defendant]’s overall workforce”).

Plaintiffs’ theories of commonality under Falcon’s second

scenario are far from clear. Plaintiffs acknowledge that

Amtrak’s express policies forbid racial discrimination and

retaliation. Pls.’ Class Cert. Mem., ECF No. 303 at 14. Instead,

plaintiffs argue that “Amtrak’s centrally-imposed policies,

practices, and procedures,” while uniform and racially-neutral,

were open to “variations in practice” by supervisors which led

to racial bias in employment decisions. Id. at 26; see also id.

79 at 24 (asserting that “all of Amtrak’s employment policies are

entirely uniform nationwide, but are poorly implemented”); id.

at 30 (there were “deviations or variations” from “commonly

applicable procedures” that permitted “the influx of racially

discriminatory bias”); id. at 7 (“Depositions of scores of

Amtrak managers reflected that the standard selection process

was followed throughout the country across all crafts; however,

they also revealed numerous variations which allowed for the

infusion of subjective qualities.”).

Stated this way, plaintiffs’ theory of commonality rests on

the contention that Amtrak allowed lower-level employees to

deviate from standard policies, which resulted in employment

decisions being infected by bias. This theory is the same as the

theory of commonality rejected in Dukes. Compare Pls.’ Class

Cert. Mem., ECF No. 303 at 26 (“Plaintiffs here show the pattern

or practice [of racial discrimination] by demonstrating that

Amtrak’s centrally-imposed policies, practices, and procedures

were in place and implemented throughout Amtrak’s system, that

Amtrak headquarters mandated that the polices be used company-

wide, and that variations in practice open the process up to the

influences of bias[.]”), with Dukes v. Wal-Mart Stores, Inc.,

222 F.R.D. 137, 145 (N.D. Cal. 2004) (“Plaintiffs present

evidence that Wal-Mart’s policies governing compensation and

promotions are similar across all stores, and build in a common

80 feature of excessive subjectivity which provides a conduit for

gender bias that affects all class members in a similar

fashion.”). As the Dukes court explained, such a “policy” of

delegating discretion is “just the opposite of a uniform

employment practice that would provide the commonality needed

for a class action.” Dukes, 564 U.S. at 355. 6

Indeed, in the wake of Dukes, courts “have generally denied

certification when allegedly discriminatory policies are highly

discretionary.” Tabor v. Hilti, Inc., 703 F.3d 1206, 1229 (10th

Cir. 2013). But Dukes “did not set out a per se rule against

class certification where subjective decisionmaking or

discretion is alleged”; rather, “to satisfy commonality, a

plaintiff must demonstrate that the exercise of discretion is

6 Plaintiffs point to the testimony of one deponent to argue that the ultimate decision to hire or promote an employee rested exclusively with Amtrak’s Chief Executive Officer. See Pls.’ Class Cert. Mem., ECF No. 303 at 16 (citing Walker Dep., ECF No. 309-4 at 4). Declarations from other employees, however, suggest that individual hiring decisions are made by local managers based on a host of factors. See Ray Decl., ECF No. 322-5 ¶ 44 (“the Hiring Manager, sometimes with input from his or her department, is responsible for selecting the final candidate for hire”); Allan Decl., ECF No. 321-3 ¶ 17 (explaining that the “ultimate decision making authority” on a hiring decision “lies with the Hiring Manager”). Accordingly, plaintiffs have not established that only upper-level management were involved in many or all the challenged employment decisions. See Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 114 (4th Cir. 2013) (explaining that Dukes is “limited to the exercise of discretion by lower-level employees, as opposed to upper-level, top- management personnel”).

81 tied to a specific employment practice, and that the ‘subjective

practice at issue affected the class in a uniform manner.’”

Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 113 (4th Cir.

2013) (citation omitted). In other words, the requisite “glue”

may be provided by “unit[ing] acts of discretion under a single

policy or practice, or through a single mode of exercising

discretion.” In re Countrywide Fin. Corp. Mortg. Lending

Practices Litig., 708 F.3d 704, 708 (6th Cir.2013); see also

Tabor, 703 F.3d at 1229 (to satisfy commonality, plaintiffs must

“point to ‘a common mode of exercising discretion that pervades

the entire company’”) (citation omitted).

Plaintiffs suggest that they provide such “glue” because

Amtrak’s common and uniform employment policies — as set out in

corporate policies governing promotions and transfers and

through various collective-bargaining provisions — unite the

individual acts of discretion of lower-level employees. See

Pls.’ Reply in Supp. of Mot. to Certify Class, ECF No. 344 at 6-

14. 7 To be sure, the Dukes Court recognized that, “‘in

7 Amtrak moves to strike certain new arguments raised by plaintiffs in their reply memorandum in support of their motion for class certification. See Def.’s Mem. in Supp. of Mot. to Strike Reply, ECF No. 353-1 at 4-18. Amtrak further moves to strike portions of the declarations submitted in support of plaintiffs’ opposition to Amtrak’s motion to exclude Drs. Bradley and Fox as inadmissible under the Federal Rules of Evidence. See id. at 18-31. Taking the second argument first, the Court agrees with Amtrak that the Court cannot rely on plaintiffs’ declarations without resolving Amtrak’s evidentiary

82 appropriate cases,’ giving discretion to lower-level supervisors

can be the basis of Title VII liability . . . since ‘an

employer’s undisciplined system of subjective decisionmaking

[can have] precisely the same effects as a system pervaded by

impermissible intentional discrimination.’” Dukes, 564 U.S. at

355 (quoting Watson v. Fort Worth Bank & Trust, 487 U.S. 977,

990-91 (1988)). But “demonstrating the invalidity of one

manager’s use of discretion will do nothing to demonstrate the

invalidity of another’s,” and therefore, in the usual course, a

party seeking class certification “will be unable to show that

all the employees’ Title VII claims will in fact depend on

answers to common questions.” Id. at 355-56; cf. Garcia v.

Johanns, 444 F.3d 625, 632 (D.C. Cir. 2006) (“Establishing

commonality for a disparate treatment class is particularly

difficult where, as here, multiple decisionmakers with

significant local autonomy exist.”). Thus, to establish

commonality under such a theory, plaintiffs must show how

Amtrak’s uniform polices resulted in a common mode of exercising

objections. See supra Part IV. Because the Court does not rely on the portions of the declarations to which Amtrak objects, the Court does not address Amtrak’s objections at this time. As for Amtrak’s first argument, the Court finds that, to the extent plaintiffs’ raised any purportedly new arguments in their reply, Amtrak sufficiently addressed those arguments in its motion to strike. Accordingly, because Amtrak will not be prejudiced by the Court’s consideration of plaintiffs’ reply memorandum, it denies Amtrak’s motion to strike any “new” arguments.

83 discretion that pervaded the entire company and led to the

discrimination about which plaintiffs complain.

Plaintiffs try to make such a showing by pointing to (1)

the testimony of their expert that Amtrak’s uniform employment

policies were vulnerable to bias; (2) statistical evidence that

shows disparities in selection and discipline rates between

African-American and non-African-American individuals; (3)

anecdotal evidence from members of the putative class describing

instances of racial discrimination; and (4) the testimony of a

former Amtrak employee discussing the inadequacies in Amtrak’s

handling of discrimination complaints. As explained more fully

below, the Court finds that plaintiffs have failed to put

forward “significant proof” that any alleged disparate outcomes

in Amtrak’s hiring, promoting, and disciplinary decisions are

the result of a common mode of exercising discretion.

Accordingly, plaintiffs have not satisfied Rule 23(a)’s

commonality requirements, and plaintiffs’ proposed classes

cannot be certified.

1. Dr. Finkelman’s Testimony Is Unreliable And Therefore Does Not Support Plaintiffs’ Theory of Commonality

Plaintiffs assert that the opinions of their industrial-

organizational psychology expert, Dr. Jay Finkelman, support

their contention that Amtrak’s human-resources practices made

the company’s employment decisions vulnerable to bias. Pls.’

84 Class Cert. Mem., ECF No. 303 at 17-18, 26. Dr. Finkelman opines

that individual managers departed from Amtrak’s uniform hiring,

promotion, and disciplinary policies in a way that “allowed for

subjectivity and the potential for bias or discrimination.”

Finkelman Dep., ECF No. 319-3 at 4-5; see also Finkelman Rep.,

ECF No. 304-3 at 25 (“There is a disturbing and pervasive

randomness to the evaluation, selection and discipline

procedures that Amtrak apparently uses throughout the system.

There are few is any controls against intentional or inadvertent

bias or discrimination. The process appears to be highly

subjective and unstructured.”). As previously explained,

however, Dr. Finkelman’s failure to verify the facts supporting

his opinions render his report and testimony unreliable under

the standards set forth in Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993). See supra Part

III.C. Therefore, the Court will not consider his report or

testimony in evaluating plaintiffs’ commonality arguments. 8

8 In any event, Dr. Finkelman’s report and testimony do not show that managers or others at Amtrak applied their discretion in any common way that caused racial disparities. Indeed, he does not opine that Amtrak’s practices actually resulted in any biased employment decisions; rather, he opines that Amtrak’s processes created a “potential” for bias. Finkelman Dep., ECF No. 319-3 at 4-5. As Amtrak correctly notes, this sort of testimony is similar to the testimony offered by the plaintiffs’ expert in Dukes, who opined that Wal-Mart’s corporate culture made it “vulnerable” to bias but “could not calculate whether 0.5 percent or 95 percent of the employment decisions . . . might be determined by stereotyped thinking.” Dukes, 564 U.S. at

85 2. Plaintiffs’ Statistical Evidence Does Nothing To Establish That Amtrak’s Employment Practices Led To Any Alleged Disparate Outcomes

Plaintiffs next point to statistical evidence to show that

Amtrak’s facially-neutral employment policies resulted in a

disparate racial impact. Pls.’ Class Cert. Mem., ECF No. 303 at

18-19, 26, 30. Specifically, plaintiffs’ statistical experts,

Dr. Bradley and Dr. Fox, found that African-American individuals

were hired and promoted for vacant positions at rates lower than

their non-African-American counterparts and were disciplined at

rates higher than their non-African-American counterparts. See

generally Bradley/Fox Rep., ECF No. 304-1.

Statistical evidence may, of course, be used to prove

discrimination on a disparate-impact theory. See, e.g., Watson

v. Fort Worth Bank and Trust, 487 U.S. 977, 991-1000 (1988).

Dukes did not change this standard, but rather reiterated that

statistical correlation cannot substitute for a specific finding

of class-action commonality. See Dukes, 564 U.S. at 356. In

other words, “merely proving that the discretionary system has

produced a racial . . . disparity is not enough” where

plaintiffs are unable to identify a specific employment practice

354. The Supreme Court found that this testimony could be “safely disregard[ed]” and was “worlds away from ‘significant proof’ that Wal-Mart ‘operated under a general policy of discrimination.’” Id.

86 that is responsible for the alleged disparity. Id. This is

particularly true when, as here, the challenged employment

practices combine both objective and subjective components. See

Watson, 487 U.S. at 994 (“Especially in cases where an employer

combines subjective criteria with the use of more rigid

standardized rules or tests, the plaintiff is in our view

responsible for isolating and identifying the specific

observed statistical disparities.”).

Here, the critical question is whether Dr. Bradley and Dr.

Fox’s statistical analysis shows that subjective employment

decisions at Amtrak led to racially disparate outcomes. Dr.

Bradley admitted, however, that the statistical analysis did not

focus on any particular employment practice, and he acknowledged

that he therefore cannot opine that a particular employment

practice caused any alleged racial disparities:

Q. Dr. Bradley, I’d like to ask whether or not you can give a professional statistical opinion or do you give a professional statistical opinion in your report that a particular employment practice at Amtrak caused adverse impact against African- Americans?

A. I cannot.

Q. Did you study whether a particular employment practice at Amtrak caused adverse impact?

A. I did not.

87 Bradley Dep., ECF NO. 331-3 at 27.

Dr. Bradley reiterated this conclusion later in his

testimony:

Q. If we start at a global level, how do I know that the employees that I’m looking at . . . were affected by some type of criteria that had adverse impact on them that was the same criteria?

A. Well, it may not be the same criteria. You get differences I think like we do across all of these jobs in a particular craft. And blacks are showing a smaller rate and it is statistically significant, that indicates to me there’s some problem somewhere and we need to investigate where that problem is.

Id. at 32-33. In other words, plaintiffs’ statistical experts do

little more than establish that African-American candidates are

underrepresented in Amtrak’s hiring and promotion decisions, and

overrepresented in Amtrak’s disciplinary decisions. This is

precisely the sort of statistical evidence that was rejected as

insufficient in Dukes. See Dukes, 565 U.S. 356-57.

Moreover, in conducting their analysis, Dr. Bradley and Dr.

Fox examined employment decisions across four craft groups, each

of which contain numerous positions with different

responsibilities, that are overseen by different supervisors,

that are in different locations, and that are covered by

different labor unions. See Expert Rep. of Jerrold A. Glass, ECF

No. 320-4 ¶¶ 14-24. When asked about his approach, Dr. Bradley

88 conceded that his aggregated analysis would not permit any

conclusions about the potential causes of any racially-disparate

impact seen in the statistical analysis:

Q. Wouldn’t you want to . . . try to find the jobs that are similar to each other and aggregate them?

A. At some point once you you’ve got adverse impact, you want to try and drill down and find out where the problems are occurring.

Q. Did you do that in your study, try to drill down?

A. I have not done that.

Q. Why not?

A. I wasn’t asked to do that in this particular case.

Bradley Dep., ECF No. 331-3 at 32. Other courts have rejected

Dr. Bradley’s expert opinions for similar reasons. See Anderson

v. Westinghouse Savannah River Co., 406 F.3d 248, 262-63 (4th

Cir. 2005) (district court did not err in excluding Dr.

Bradley’s opinions because his statistical analysis did not

compare similarly-situated employees and therefore was not

probative of whether or not there was a disparate impact).

Indeed, Amtrak’s statistical expert — whose qualifications and

opinions plaintiffs do not challenge — found that there was no

consistent pattern of adverse outcomes for African-American

individuals when decisions were analyzed based on job-specific

89 selection criteria. See Expert Rep. of Donald Deere (“Deere

Rep.”), ECF No. 328-5 at 28-32.

Nor did Dr. Bradley and Dr. Fox consider objective factors

like seniority, previous work experience, or education in

examining Amtrak’s hiring and promotion decisions. See Bradley

Dep., ECF No. 331-3 at 27-29. For example, when asked whether

his analysis took into consideration a particular individual’s

work experience in assessing whether the selection process had

an adverse impact, Dr. Bradly admitted that it did not.

Accordingly, he acknowledged that it was “possible” that his

findings of disparate impact could be explained by a wholly

“legitimate factor” that played “a decisive role” in the

decision-maker’s employment selection. Id. at 28. For this

reason, too, plaintiffs’ statistical evidence does not

demonstrate commonality. See Garcia v. Jones, 444 F.3d 625, 635

(D.C. Cir. 2006) (district court acted within its discretion in

rejecting statistical analysis where the expert “failed to

account for variables that affected the analyses” and therefore

did not connect any alleged disparate impact to defendant’s

policy or practice); Gonzalez v. Brady, 136 F.R.D. 329, 333

(D.D.C. 1991) (because “plaintiffs’ statistics merely compared

the relative number of Hispanics and non-Hispanics at the

various grade levels” and did not “show the comparison between

similarly situated Hispanic and non-Hispanic employees (i.e.,

90 employees with similar qualifications and experience),” they

“offer[ed] little assistance in establishing the existence of

the aggrieved class”).

3. Plaintiffs’ Anecdotal Evidence Shows Variability, Not Commonality

Plaintiffs also offer anecdotal evidence — in the form of

declarations from 101 putative class members — in support of

their contention that a common mode of discretionary

decisionmaking resulted in racial discrimination across each

alleged subclass. Pls.’ Class Cert. Mem., ECF No. 303 at 19-22,

31; id. Ex. 8, ECF No. 304-8.

To be sure, these declarations provide far too many

examples of very serious racial discrimination. For instance:

• Bryant Cox states that a white manager called him a “nigger” on multiple occasions, including in front of an Amtrak EEO Officer and a supervisor. Decl. of Bryant Cox, ECF No. 304-8 at 39, ¶ 11.

• Windell Greene explains that, in addition to being subjected to racial epithets, he once found “a rope noose about 6-7 inches in diameter hanging from a beam” in a common work area. Decl. of Windell Greene, ECF No. 304-8 at 80, ¶ 27.

• Betty Haymer states that, when she and other African-American employees objected to being assigned maintenance work outside on a rainy day, the supervisor yelled at them and called them a “[b]unch of niggers.” Decl. of Betty Haymer, ECF No. 304-8 at 81, ¶ 17.

91 • Lena Johnson recounts that, “[b]etween 1980 and 1995, [her] white Supervisor, Bill Lake, would use the word ‘nigger’ on a daily base. For example, he would say to an African-American employee, ‘Nigger, get that machine started.’” Decl. of Lena Johnson, ECF No. 304-8 at 126, ¶ 6.

• Alfred Felton recalls that, “[i]n about 1998, white employees hung a black doll from a noose in the locker room. Later, the doll was taken down and attached to the back of a golf cart. [He] also observed a white employee dragging a black doll behind his scooter. On several occasions, [he] heard white employees threaten to drag “Niggers” behind the trains when they departed.” Decl. of Alfred Felton, ECF No. 304-8 at 451, ¶ 16. 9

The use of deeply offensive racial epithets by Amtrak

supervisors almost certainly created a hostile work environment

for the individual employees subject to the abuse. See Ayissi–

Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C. Cir. 2013)

(suggesting that “the use of an unambiguously racial epithet

such as ‘nigger’ by a supervisor” could alone be sufficient to

establish a hostile work environment) (citation omitted).

The declarations do not, however, offer evidence that

Amtrak’s supervisors exercised their discretion in a uniform

manner. For one, the declarations demonstrate that, although

9 Although Amtrak objects to portions of Mr. Felton’s declaration, it does not contest the paragraphs cited by the Court. See Def.’s Mem. in Supp. of Mot. to Strike Decls. of Pls. (“Def.’s Strike Decls. Mem.”), ECF No. 330-1 at 18-20 (objecting to paragraphs 7, 10, and 17).

92 some supervisors exercised discretion in a discriminatory

manner, others did not. See, e.g, Decl. of Garner Willis, ECF

No. 304-8 at 297, ¶¶ 7-8 (attesting that one white manager

“screamed at [him] . . . . using racially charged language” but

that his white supervisor removed the manager from the crew and

sent him to training upon learning of the behavior). Moreover,

the declarations establish that members of plaintiffs’ putative

subclasses experienced discrimination based on a number of

different policies or practices. For example, plaintiffs submit

four declarations from Amtrak employees in the engineering craft

groups. As evidence of racial discrimination at Amtrak, one of

those employees, Marcus Brunswick, points to the fact that he

and another African-American applicant failed the “subjective

visual” portion of a test required for an electrical traction

position, whereas several white applicants took the test and

passed. Decl. of Marcus Brunswick, ECF No. 304-8 at 282, ¶ 6. 10

Mr. Brunswick also claims that it took him longer to be promoted

than his white peers, who “were promoted faster because of their

race and because they received training and mentorship from

white supervisors.” Id. ¶ 12. Another employee in the

10 Although Amtrak objects to portions of Mr. Brunswick’s declaration, it does not contest the paragraphs cited by the Court. See Def.’s Strike Decls. Mem., ECF No. 330-1 at 11-12 (objecting to paragraphs 9, 10, 20, and 23).

93 engineering craft group, Alfred Jones, states in his declaration

that a supervisor retaliated against him after he complained to

his union representative about the supervisor’s racist comments.

Decl. of Albert Jones, ECF No. 304-8 at 290, ¶¶ 6-8. 11

Specifically, Mr. Jones avers that his supervisor denied him

higher pay rates, asked him to complete additional work, and

eventually terminated him based on an insubordination charge.

Id. ¶¶ 8-11. Although Mr. Jones was eventually reinstated after

filing a claim for race discrimination, he continued to

experience retaliatory conduct in the form of lower overtime

pay, being forced to bid into lower-paying positions, and

unfavorable job assignments that should have been given to less-

senior white employees. Id. ¶¶ 14-18. As the declarations of Mr.

Brunswick and Mr. Jones demonstrate, even employees in the same

craft groups experienced discrimination in different ways at the

hands of different individuals. Accordingly, the declarations

suffer from the same defects as plaintiffs’ statistical evidence

11 Amtrak objects that Mr. Jones’ declaration, which states that he was terminated as a result of an insubordination charges, is directly contradicted by his deposition testimony in which he explains that he was “taken out of service” as opposed to terminated. See Def.’s Strike Decls. Mem., ECF No. 330-1 at 29. The Court finds that this inconsistency does not relate to a material fact in the case and goes to the weight to be afforded Mr. Jones’ testimony. Accordingly, the Court will not strike the testimony at issue. See Ascom Hasler Mailing Sys. v. U.S. Postal Serv., 815 F. Supp. 2d 148, 163 (D.D.C. 2011).

94 — i.e., they do not establish that the putative class members

are “victim[s] of one common discriminatory practice.” Dukes,

564 U.S. at 345.

4. Ms. Hightower’s Testimony Is Insufficient To Tie Together The Claims Of Classes Spanning Sixteen Years

Finally, plaintiffs argue that the testimony of Wanda

Hightower — Amtrak’s Vice President for Diversity from 1999 to

2001 — provides compelling evidence that supervisors received

“signals from top management that they did not have to submit to

investigations of discrimination and harassment or implement

recommendations remedial action.” Pls.’ Class Cert. Mem., ECF

No. 303 at 29. Ms. Hightower testified that her efforts to

ensure appropriate consequences were meted out for egregious

instances of racial discrimination were met with resistance,

that Amtrak’s Chief Executive Officer George Warrington asked

her to “slow the pace down” and suggested she stop making

“aggressive recommendations” with respect to discipline, and

that she was abruptly fired when she refused to comply with

those suggestions. See Hightower Dep., ECF No. 309-9 at 11-15,

18, 34-35.

Ms. Hightower’s testimony provides forceful evidence that,

at least for the period during which Ms. Hightower was employed

at Amtrak, Amtrak’s leadership — and, in particular, Mr.

Warrington — did not support Amtrak’s corporate policy

95 prohibiting racial discrimination. As compelling as Ms.

Hightower’s testimony is in this regard, it nonetheless fails to

tie together the many discretionary employment decisions to

which the putative class members were subject over the class

period. For one, the testimony of one former employee who worked

at Amtrak for less than two years does not reasonably raise an

inference that Amtrak “operated under a general policy of

discrimination” over the entire sixteen-year class period.

Moreover, even for the period during which Ms. Hightower was

employed at Amtrak, Ms. Hightower’s testimony does not show that

the disciplinary decisions of most supervisors at Amtrak were

discriminatory. According to plaintiffs’ experts, there were

24,136 charges for disciplinary charges over the 152-month

period that was analyzed. See Bradley/Fox Rep., ECF No. 304-1 at

29. Accordingly, during Ms. Hightower’s 22-month tenure,

approximately 3,500 disciplinary charges would have been brought

on average. Ms. Hightower testified, however, that there were

only twenty-five cases during her time at Amtrak where she “felt

that supervisors or managers had engaged in some kind of

discriminatory or retaliatory activity” that “was not adequately

addressed.” Hightower Dep., ECF No. 309-9 at 33. Thus, Ms.

Hightower’s testimony does not provide “significant proof” that

Amtrak operated under a general policy of discrimination. Dukes,

564 U.S. at 355.

96 The cases cited by plaintiffs in which courts have

certified employment-discrimination classes confirm the Court’s

conclusions. Each of those cases involved more tightly-knit

classes and concrete theories of discrimination based on common

employment practices or the decisions of a common supervisor.

For example, plaintiffs point to McReynolds v. Merrill Lynch,

Pierce, Fenner & Smith, Inc., 672 F.3d 482 (7th Cir. 2012), in

which the Seventh Circuit affirmed certification of a class of

700 financial brokers who alleged that their employer’s policies

had a disparate impact on African-American employees. See Pls.’

Reply in Supp. of Mot. for Class Cert., ECF No. 344 at 9.

Although the plaintiffs in that case also accused the defendant

of “delegate[ing] discretion over decisions that influence the

compensation of all the company’s 15,000 brokers,” plaintiffs

pointed to two specific employment policies that they claimed

led to the discriminatory impact. McReynolds, 672 F.3d at 488.

These company-wide policies provided the “glue” that held the

plaintiffs’ claims together because they purportedly explained

how the directors exercised their discretion in a common way

that had a discriminatory impact. Id. at 488-89.

Likewise, in Moore v. Napolitano, 926 F. Supp. 2d 8 (D.D.C.

2013), the court certified a class of current and former special

agents in the United States Secret Service alleging

discrimination in the Secret Service’s promotion practices. See

97 Pls.’ Suppl. Mem. in Supp. of Class Cert., ECF No. 370 at 11.

The plaintiffs there challenged the Secret Service’s use of the

Merit Promotion Program, which produced a numerical score for

each candidate that was used to make promotion decisions. Moore,

926 F. Supp. 2d at 12-13. Here, by contrast, plaintiffs have not

identified any selection policy that applies to all putative

class members across various job functions.

In short, plaintiffs have not identified a specific

employment practice applicable to all putative class members

that purportedly caused the alleged discrimination about which

plaintiffs complain. Moreover, plaintiffs’ evidence makes clear

that many putative class members suffered discrimination in a

variety of ways through the decisions of different individuals

in a wide range of contexts. “Such potential breadth of

experiences and claims among the putative class members is not

the mark of a class that meets the commonality requirement of

Rule 23(a).” Ross v. Lockheed Martin Corp., 267 F. Supp. 3d 174,

201 (D.D.C. 2017).

VI. SUMMARY JUDGMENT

Although plaintiffs’ claims are not amenable to class

treatment, the individual claims of the named plaintiffs

survive. The Court therefore proceeds to consider Amtrak’s

motion for partial summary judgment on plaintiffs’ disparate-

impact claims.

98 Summary judgment is appropriate when the moving party has

shown that there are no genuine issues of material fact and that

the moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986). A material fact is one that is capable of affecting

the outcome of the litigation. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A genuine issue exists where the

“evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Id. A court considering a motion for

summary judgment must draw all “justifiable inferences” from the

evidence in favor of the non-movant. Id. at 255.

To survive a motion for summary judgment, however, the non-

movant “must do more than simply show that there is some

metaphysical doubt as to the material facts”; instead, the

nonmoving party must come forward with “‘specific facts showing

that there is a genuine issue for trial.’” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87

(1986) (quoting Fed. R. Civ. P. 56(e)). Moreover, “although

summary judgment must be approached with special caution in

discrimination cases, a plaintiff is not relieved of his

obligation to support his allegations by affidavits or other

competent evidence showing that there is a genuine issue for

trial.” Adair v. Solis, 742 F. Supp. 2d 40, 50 (D.D.C.

2010) (quotation marks and alterations omitted).

99 Employment discrimination claims under Title VII may

proceed under both a “disparate treatment” and a “disparate

impact” theory. See Ross v. Lockheed Martin Corp., 267 F. Supp.

3d 175 (D.D.C. 2017) (citation omitted). A plaintiff alleging

disparate impact must show that an employer uses “a particular

employment practice that causes a disparate impact on the basis

of race, color, religion, sex, or national origin.” Ricci v.

DeStefano, 557 U.S. 557, 578 (2009); see also 42 U.S.C. § 2000e-

2(k)(1)(A) (plaintiff alleging disparate impact must demonstrate

that the employer “uses a particular employment practice that

causes a disparate impact on the basis of race,” at which point

the employer must show “that the challenged practice is job

related for the position in question and consistent with

business necessity” or adopt an “alternative practice” that has

less disparate impact but still meets the employer’s needs).

Although a plaintiff generally must identify a specific

employment practice that is the subject of the challenge, if the

plaintiff “can demonstrate to the court that the elements of

a[n] [employer’s] decisionmaking process are not capable of

separation for analysis, the decisionmaking process may be

analyzed as one employment practice.” 42 U.S.C. § 2000e—

2(k)(1)(B)(i).

Amtrak first asserts that it should be granted summary

judgment on plaintiffs’ disparate-impact claims because

100 plaintiffs have not identified any specific employment practice

in the fourth amended complaint or motion for class

certification that qualifies as a “particular employment

practice.” Def.’s Mem. in Supp. of Mot. for Summ. J. (“Def.’s

Summ. J. Mem.”), ECF No. 328-1 at 11-14. In response, plaintiffs

state that they “challenge the selection interview process,

ratings, rank-orderings, input from other managers, amorphous

decision-making, and the disqualifying discipline criterion” as

having an adverse impact on African-American employees and

applicants. Pls.’ Opp. to Mot. for Summ. J. (“Pls.’ Summ. J.

Opp.”), ECF No. 343 at 7. Plaintiffs claim that, aside from the

disqualifying discipline criteria, these practices are

components of Amtrak’s “overall selection process” and cannot be

separated for two reasons: (1) the practices are so “interwoven”

that no single practice is “determinative” of the disparate

outcomes; and (2) Amtrak failed to keep adequate records to

permit analysis of particular practices. Pls.’ Summ. J. Opp.,

ECF No. 343 at 8.

Amtrak asserts that both these arguments fail. First,

Amtrak contends that the “incapable-of-separation” exception

applies only “where common components of a uniform selection

process exist, but it is unreasonably difficult to isolate those

common components from each other.” Def.’s Reply in Supp. of

Mot. for Summ. J. Reply (“Def.’s Summ. J. Reply”), ECF No. 356

101 at 11. Amtrak further argues that plaintiffs have not met their

burden to show that the incapable-of-separation exception should

apply based on the paucity of data. Amtrak points to plaintiffs’

own arguments that Amtrak’s selection process is comprised of

five distinct steps, which suggests that Amtrak’s selection

process was, in fact, capable of separation. Def.’s Summ. J.

Mem., ECF No. 328-1 at 21-22.

Taking Amtrak’s second argument first, the Court agrees

that plaintiffs have not sufficiently shown that the various

components of Amtrak’s process for hiring or promoting employees

were not capable of being divided into smaller subsets related

to specific employment practices for purposes of a statistical

analysis. As an initial matter, although the parties used a

joint database to avoid an “intractable debate” over how to

merge Amtrak’s various sources of employment data, there does

not appear to be any serious dispute that the database alone did

not contain sufficient information to engage in a statistical

analysis of specific employment policies for disparate impact.

See Pls.’ Summ. J. Opp., ECF No. 343 at 13-14; Def.’s Summ. J.

Reply, ECF No. 356 at 16-17. 12 Even so, Amtrak maintained “job

12 Amtrak argues that that the joint database contained sufficient data for plaintiffs to conduct a statistical analysis with respect to a “particular job in a particular location where the selection criteria and procedures were more likely to be similar.” Def.’s Summ. J. Reply. ECF No. 356 at 20-23. The fact that the data in the joint database could be sliced to analyze

102 files” that contained documents spanning the various stages of

the employment selection process for each individual. Pls.’

Summ. J. Opp., ECF No. 343 at 15; Deere Rep., ECF No. 331-5 at

21. Some of these files include applicant questionnaires, pre-

employment tests and surveys, interviewer report forms, and

interview questions. Deere Rep., ECF No. 331-5 at 21. As such,

the data from these job files could have been used to evaluate

the effect of a specific practice — for example, whether the use

of a pre-employment test or ratings forms increased the

likelihood that an African-American individual would not be

selected for the position.

Plaintiffs respond that these job files could not be used

to analyze different employment practices because the “contents

of each file were inconsistent and varied.” Pls.’ Summ. J. Opp.,

ECF No. 343 at 16 (providing examples of the inconsistency in

documents contained in each file). Nonetheless, plaintiffs have

not sufficiently shown that this information could not have

meaningfully been used to evaluate different employment

particular jobs by particular cities does not, however, mean that plaintiffs cannot proceed under the incapable-of-separation exception. The key question “is not whether the massive data can be divided up into piles,” but rather, “whether the plaintiffs demonstrated any resulting piles that might be formed do not reveal particular employment practices that are capable of separation for statistical analysis.” Pippen v. State, 854 N.W.2d 1, 25 (Iowa 2014).

103 practices. For example, plaintiffs do not offer any testimony

from their statistical experts that the files do not contain

adequate data to conduct a reliable analysis. Indeed,

plaintiffs’ statistical expert acknowledged that the racial

identity of thirty-five percent of the applicants in the

applicant flow data was “unknown,” but argued that, from a

methodological perspective, the missing information was not an

insurmountable obstacle to his analysis. See Expert Rebuttal

Rep. of Edwin L. Bradley, ECF No. 342-6 at 18. Dr. Bradley did

not provide any similar analysis or opinion with respect to the

purportedly missing job file data. Accordingly, the Court finds

that plaintiffs have failed to meet their burden to show that

Amtrak’s selection procedures are “not capable of separation for

analysis.”

Likewise, plaintiffs have not identified any specific

disciplinary practices that they claim led to a disparate

impact. Indeed, Dr. Bradley conceded that he did not attempt to

study particular forms of discipline used at Amtrak:

Q. So you can’t say anything based on your discipline study about what might have caused the disparate impact in the award of disciplines to African-Americans?

A. That’s correct.

Q And you didn’t study disciplinary — any particular disciplinary infraction to see if maybe that type of infraction had a

104 discriminatory impact on African-Americans, did you?

A. What do you mean by that?

Q. Well, you took all charges no matter what kind of charge. You didn’t look at, well, this charge involves absenteeism or this charge involves tardiness or this charge involves insubordination? You didn’t look at the different types of charges, did you?

A. No, I did not.

Q. You had the data to look at those different types of charges, didn’t you?

A. They did show the different types of charges, that’s correct.

Q. Why didn’t you look at the different types of charges?

A. I was interested in the disciplinary process as a whole.

Bradley Dep., ECF No. 331-3 at 65. To survive summary judgment,

plaintiffs are “responsible for isolating and identifying the

specific employment practices that are allegedly responsible for

any observed statistical disparities.” Smith v. City of Jackson,

Miss., 544 U.S. 228, 241 (2005). This is because a “failure to

identify the specific practice being challenged is the sort of

omission that could result in employers being potentially liable

for the myriad of innocent causes that may lead to statistical

imbalances.” Id. (citation and internal quotation marks

omitted). Here, plaintiffs have failed to identify any specific

practice, and therefore, their disparate-impact claims must

105 fail. For all of these reasons, Amtrak’s motion for summary

judgment on plaintiffs’ disparate-impact claims is granted. 13

VII. CONCLUSION

For the foregoing reasons, the Court GRANTS Amtrak’s motion

to exclude Jay Finkelman, DENIES Amtrak’s motion to exclude

Thomas Roth, DENIES Amtrak’s motion to exclude Edwin Bradley and

Liesl Fox, GRANTS in part Amtrak’s motion to strike portions of

plaintiffs’ declarations, GRANTS in part and DENIES in part

Amtrak’s motion to strike plaintiffs’ reply brief, DENIES

plaintiffs’ motion for class certification, and GRANTS

defendant’s partial motion for summary judgment. Plaintiffs’

class claims are dismissed, as are plaintiffs’ disparate-impact

13 Amtrak also moves for summary judgment on the ground that plaintiffs’ disparate-impact claims are not cognizable under 42 U.S.C. § 1981. See Def.’s Summ. J. Mem., ECF No. 328-1 at 10; see also Gen. Bldg. Contractors Ass’n v. Penn., 458 U.S. 375, 391 (1982) (section 1981 “can be violated only by purposeful discrimination”); Frazier v. Consol. Rail. Corp., 851 F.2d 1447, 1449 n.3 (D.C. Cir. 1988) (similar); McReynolds v. Sodexho Marriott Servs., Inc., 349 F. Supp. 2d 1, 7 n.3 (D.D.C. 2004) (“Defendant correctly argues that plaintiffs cannot bring a disparate impact claim under 42 U.S.C. § 1981, since purposeful discrimination is required under § 1981.”). Plaintiffs do not offer any response to this argument, and thus concede it. In any event, plaintiffs’ fourth amended complaint does not allege disparate impact with respect to plaintiffs’ section 1981 claims. See Fourth Am. Compl., ECF No. 145 ¶ 619 (alleging that Amtrak’s conduct has been “intentional, deliberate, willful, and conducted in callous disregard of the rights of the named Plaintiffs”).

106 claims under Title VII and Section 1981. An appropriate Order

accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge April 26, 2018