Little v. Washington Metropolitan Area Transit Authority , 249 F. Supp. 3d 394 ( 2017 )


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  •                         UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    __________________________________
    )
    ERICK LITTLE, et al.,               )
    )
    Plaintiffs,             )
    )
    v.                            )    Civil Action No. 14-1289 (RMC)
    )
    WASHINGTON METROPOLITAN             )
    AREA TRANSIT AUTHORITY, et al., )
    )
    Defendants.             )
    _________________________________   )
    OPINION
    Plaintiffs complain that a criminal background check, used by the Washington
    Metropolitan Area Transit Authority (WMATA) to screen candidates and employees, is facially
    neutral but has a disparate impact on African Americans. WMATA’s Policy 7.2.3 governs how
    and when individuals with criminal convictions can obtain or continue employment with
    WMATA and its contractors and subcontractors. Plaintiffs seek to represent one or more classes
    of African-American candidates and employees who were disqualified or removed from
    employment by Policy 7.2.3 in alleged violation of Title VII of the Civil Rights Act of 1964, 42
    U.S.C. § 2000e et seq. and the District of Columbia Human Rights Act (DCHRA), D.C. Code
    § 2.1404.01 et seq. After class discovery, Plaintiffs now seek leave to file an amended
    complaint, class certification of the amended classes, and appointment of Plaintiffs’ counsel as
    class counsel.
    The motion to amend the complaint will be denied without prejudice. The motion
    for class certification will be granted in part and denied in part. The Court will certify three
    classes, separating candidates and employees based on the Appendix of Policy 7.2.3 that applied
    to them.
    1
    The parties also filed motions to exclude the other’s experts. The motion to
    exclude Dr. Farber will be granted in part and denied in part. The motion to exclude Dr. Bendick
    will be granted. The motions to exclude Dr. Stixrud’s initial report and declaration will be
    granted in part and denied in part. The motion to exclude Dr. Siskin will be denied.
    I. BACKGROUND
    WMATA was created by an Interstate Compact among Washington, D.C.,
    Virginia and Maryland, and approved by Congress, to be the primary public transit agency for
    the D.C. metropolitan region. Cert. Opp., Ex. 20 [Dkt. 137-2] at WMATA0002330. WMATA
    operates the region’s Metrorail system (86 stations and 105 miles of track); Metrobus system
    (135 lines and 12,216 stops); and MetroAccess paratransit service for the disabled. See id.; see
    also Cert. Opp. [Dkt. 137] at 10. “The Compact confers broad powers on WMATA to ‘[c]reate
    and abolish offices, employments and positions . . . provide for the qualification, appointment,
    [and] removal . . . of its . . . employees, [and] [e]stablish, in its discretion, a personnel system
    based on merit and fitness.’” Beebe v. WMATA, 
    129 F.3d 1283
    , 1287 (D.C. Cir. 1997) (quoting
    D.C. Code Ann. §§ 1-2431(12)(g) and (h)). WMATA argues that it is, thus, generally “immune
    from attacks upon its discretionary decisions related to its establishment of qualifications for
    employees,” although it recognizes that it is also subject to Title VII. Cert. Opp. at 10 n.6.
    Plaintiffs allege that the screening criteria in Policy 7.2.3 are “overly broad,
    unjustifiably rigid and unduly harsh.” First Amended Complaint [Dkt. 84] ¶¶ 1-3, 8-15, 48-102,
    103-04, 126-28 (FAC). Plaintiffs complain that:
    [Policy 7.2.3] disqualifies many job applicants and employees based
    on criminal history that is not related to the job at issue or occurred
    so long ago—in some cases, 20 or 30 years in the past—that it is
    irrelevant to any fair determination of employee honesty, reliability,
    or safety.
    2
    
    Id. ¶ 1.
    To clarify Plaintiffs’ intentions, their pending Motion for Leave to File a Second
    Amended Complaint acknowledges that Plaintiffs’ expert found no statistical basis to include
    “WMATA employees who may have been deterred from applying for internal job openings
    and/or employees who may have been deterred from taking medical or personal leave” or
    “persons directly employed and subsequently terminated by WMATA.” Mot. for Leave to File
    Second Amended Complaint [Dkt. 117] ¶ 7 (SAC Mot.).
    WMATA argues that it adopted Policy 7.2.3 as a business necessity. Cert. Opp.
    at 11-13. The argument goes to the merits of Plaintiffs’ Complaint, not to their motion for class
    certification. Additionally, WMATA argues that the actual makeup of its employee pool
    demonstrates that no discrimination occurs. See 
    id. at 10-11.
    Specifically, African Americans
    constitute seventy-five percent (75%) of WMATA’s (employee and contractor) workforce of
    more than 12,000 individuals. See 
    id., Exs. 21-22
    [Dkt. 137-2]. African Americans hold 96% of
    WMATA’s bus and rail operator positions. And these numbers exceed the proportion of African
    Americans in the metropolitan area: 52% of D.C. residents identify as African American; 65%
    of residents in Prince George’s County identify as African American; and the percentages of
    persons who identify as African American in Montgomery County, Maryland, and the
    metropolitan counties in Virginia range from between 5 and 22%. See 
    id., Ex. 24
    [Dkt. 137-3] at
    WMATA0002370-2390. While these employment figures are not contested by Plaintiffs, they
    contend that Policy 7.2.3 bars employment of African Americans more than other races. See
    Connecticut v. Teal, 
    457 U.S. 440
    , 453-54, 455 (1982) (“Congress never intended to give an
    employer license to discriminate against some employees on the basis of race or sex merely
    because he favorably treats other members of the employees’ group.”); Furnco Constr. Corp. v.
    3
    Waters, 
    438 U.S. 567
    , 579 (1978) (“A racially balanced work force cannot immunize an
    employer from liability for specific acts of discrimination.”).
    From 2009 to 2012, WMATA followed an inconsistently-applied criminal
    background check policy, which was promulgated through a Staff Notice. See Mot. for Cert, Ex.
    7,                                                                                     . The
    2009 policy divided positions into public-facing and non-public-facing. For all positions, an
    individual was disqualified if s/he had a felony or misdemeanor conviction of a crime against
    persons, a sex crime, or a crime against society. For crimes against property or controlled
    substances offenses, individuals were either disqualified or permitted to have up to two
    convictions depending on whether the crime was a misdemeanor or a felony or if it was
    committed more than five or more than ten years ago. See Mot. for Cert., Ex. 6 [Dkt. 124-2]
    .
    Starting in late 2009, WMATA’s Director of Human Resources, Dr. Amy
    Celeste-Quillen, began
    to develop a policy that used criminal background checks to screen applicants for
    employment. Cert. Opp. at 12-13.
    Policy 7.2.3 was adopted in December 2011 and took effect on February 23,
    2012. Mot. for Cert., Ex. 2, Policy 7.2.3 [Dkt. 124-2] at WMATA0002227. Policy 7.2.3 first
    applied only to WMATA candidates for employment (those to whom a conditional offer of
    employment had been extended, pending screening) and WMATA badge contractor candidates
    4
    access to the general public”; (2) they are “under consideration for return to duty” after a “non-
    work status for a period of 90 calendar days or longer”; or (3) “reasonable suspicion exists”
    about information which “could impact the employee from performing the duties of the current
    position held.” 
    Id. at WMATA0002227-28,
    WMATA0002232-33.
    Section 5.03 of Policy 7.2.3 further outlines “[c]ircumstances that can result in the
    initiation of a reasonable suspicion screening,” including but not limited to:
    (1) Sources of information that can be corroborated that an
    employee has engaged in conduct that is inconsistent with Metro
    regulations and/or has been arrested and/or convicted of a crime, i.e.,
    information received from two or more independent sources,
    testimony, eyewitness statements (oral/written), videotape
    evidence, and/or protected disclosures;
    (2) Information that has been independently discovered during the
    course of an internal or external investigation that suggests an
    employee has engaged in misconduct that is inconsistent with Metro
    regulations and/or has been arrested or convicted of a crime;
    (3) Disclosure and disposition of an arrest and/or conviction by an
    employee to management to verify/validate the information
    supplied by the employee; and/or
    (4) For positions that require a valid commercial or operator’s
    driving license, information that can be corroborated that an
    employee has been charged with driving infractions that can result
    or has resulted in revocation or suspension of licensure.
    
    Id. at WMATA0002232-33.
    The background screening includes information on an individual’s arrests, credit
    report, criminal convictions, driving record, education, employment, and professional licenses
    and certificates. 
    Id. at WMATA0002228.
    From the beginning, Policy 7.2.3 has included three
    appendices tied to different categories of jobs: (1) jobs requiring unrestricted access to the
    general public; (2) fiduciary positions; and (3) all other positions. 
    Id. at WMATA0002229.
    Each appendix lists a number of criminal offenses and whether a felony or misdemeanor
    6
    conviction on a particular offense is permanently disqualifying or, in some instances, one
    conviction in that category is permissible in the last five or ten years. See, e.g., 
    id. at WMATA0002235.
    Appendix A covers positions requiring access to the general public and lists
    disqualifying offenses as those crimes against persons and property, sex crimes, controlled
    substances offenses, societal offenses, and traffic offenses, including “Criminal Mischief.” 
    Id. The traffic
    offenses are only “[a]pplicable to positions that require [a] valid . . . [l]icense.” 
    Id. A felony
    or misdemeanor conviction of “Kidnapping/Abduction/Unlawful Restraint” will
    permanently disqualify an applicant. However, while a felony conviction of “Possession of
    Controlled/Illegal Substances” is permanently disqualifying, one misdemeanor conviction in the
    last five years is permitted. 
    Id. A majority
    of the listed offenses are permanently disqualifying.
    
    Id. Appendix B
    covers fiduciary positions and includes all the offenses listed in
    Appendix A except “Criminal Mischief”; it also adds financial crimes. 
    Id. at WMATA0002236.
    A larger number of offenses are permanently disqualifying in Appendix B and a single
    conviction most often must be older than in Appendix A to permit hire. 
    Id. For example,
    an
    applicant can only have one misdemeanor conviction of “Possession of Controlled/Illegal
    Substances” in the last ten years to be eligible for a fiduciary position, rather than five years for
    public access positions. 
    Id. Appendix C
    covers all other positions, except MetroAccess, which could include
    landscapers as well as metro-track repair persons. 
    Id. at WMATA0002238.
    Appendix C
    includes all the offenses listed in Appendix A, except “Criminal Mischief.” 
    Id. at WMATA0002238.
    Fewer offenses in Appendix C are permanently disqualifying than in
    7
    Appendix A or B, and where a single conviction is permitted, the time period being reviewed is
    often shorter than in Appendix A. 
    Id. For example,
    neither a felony nor a misdemeanor
    conviction for “Possession of Controlled/Illegal Substances” is permanently disqualifying in
    Appendix C; and it is not disqualifying to have one felony conviction in the last ten years and
    one misdemeanor conviction in the last five years. 
    Id. Policy 7.2.3
    was extended to MetroAccess on January 1, 2013 with the addition of
    Appendix F. See Cert. Opp., Ex. 2, Revised Policy 7.2.3 [Dkt. 137-2] at WMATA0002429.
    Appendix F includes all of the same offenses listed in Appendix B, but adds “Criminal
    Mischief.” 
    Id. Generally, Appendix
    F has fewer permanently disqualifying offenses and the
    time period for which a single conviction is permitted is often shorter than in the other
    Appendices.
    Applicants for positions with WMATA and badge contractors undergo initial
    screening and interviews. Applicants become “candidates” after completing the pre-employment
    phase, including the “pre-employment assessment and testing, interview and [] receiv[ing] a
    contingent offer of employment.”                                Candidates’ names are forwarded to
    First Choice Background Screening (First Choice), an outside contractor, to conduct the
    background check as required by Policy 7.2.3.             If First Choice locates a disqualifying
    conviction, it mails a letter to the candidate explaining the results and stating that s/he has ten
    days to dispute the results. After ten days without a response from the candidate, First Choice
    sends a letter rescinding the contingent offer of employment.                     If a candidate
    responds to First Choice in a timely manner, s/he may only contest the accuracy of the
    background check. A candidate may not ask WMATA to make an exception to Policy 7.2.3.
    8
    MetroAccess candidates follow the same process as WMATA and badge
    contractors, except for two unique characteristics. First, MetroAccess candidates undergo a
    criminal background check                                                    and a driving record
    check if applicable, prior to having their names sent to First Choice. Mot. for Cert., Ex. 17,
    . Second, MetroAccess candidates have a more
    formal process to appeal the First Choice results directly to a board of WMATA officials.
    However the
    appeal is still limited to whether the conviction is disqualifying, not whether Policy 7.2.3 should
    be applied.
    Plaintiffs claim that Policy 7.2.3 is “overly broad and unnecessarily restrictive
    because it excludes workers on the basis of convictions that are irrelevant to any fair
    determination of employee honesty, reliability, or safety.” Second Amended Complaint [Dkt.
    117-1] ¶ 108 (SAC). Specifically, Plaintiffs criticize the portions of Policy 7.2.3 that treat a
    single conviction from particular categories of crimes as disqualifying, no matter how old.
    Plaintiffs argue that WMATA’s failure to connect Policy 7.2.3 to the
    requirements of its positions has caused a discriminatory impact. Plaintiffs point to a Guidance
    from the EEOC on the Consideration of Arrest and Conviction Records in Employment
    Decisions, as amended on April 25, 2012. See Mot. for Cert, Ex. 37, EEOC Guidance [Dkt. 124-
    4]. The Guidance recommends that employers using a criminal background check policy should
    consider three factors: (1) the nature and gravity of the offense; (2) the time since the conviction
    and/or completion of a sentence; and (3) the nature of the job sought. 
    Id. at 11.
    The Guidance
    also recommends an individualized assessment that allows an applicant to explain the
    9
    circumstances of a prior offense and to argue that it should not result in a refusal to hire. 
    Id. at 18.
    Plaintiffs argue that Policy 7.2.3 does not permit individualized assessment and prohibits
    any explanation or argument from the candidate about the circumstances of an offense. First
    Choice has no discretion in applying Policy 7.2.3 and candidates have no opportunity to appeal
    other than to argue that the background check contains inaccurate information.
    As a result of these features, Plaintiffs argue that Policy 7.2.3 has a disparate
    impact on African-American candidates. 2 Drs. Farber and Siskin, two of Plaintiffs’ experts,
    have opined that for each category of candidates (WMATA, badge contractors, and
    MetroAccess), African Americans failed the criminal background check of Policy 7.2.3 at a
    higher rate than whites and non-African Americans. Plaintiffs argue that the impact is a product
    of the racial disparities in criminal charges and convictions between African Americans and
    individuals of other races in the criminal justice system.
    Plaintiffs’ proposed class definition would include “all African-American persons
    (excluding persons directly employed and subsequently terminated by WMATA) who, since
    February 23, 2012, have been terminated or otherwise permanently separated from their
    positions, suspended with or without pay, and/or denied employment with WMATA or any third
    party contractor or subcontractor as a result of WMATA’s Criminal Background Check Policy.”
    SAC ¶ 40. The proposed class is also divided into three “subclasses” as follows:
    WMATA Candidate Subclass: All African-American persons
    who, since February 23, 2012, have been suspended with or without
    2
    For the sake of clarity the Court will refer to all members of the proposed class as candidates,
    although the Court recognizes that proposed class members include African-American
    candidates of WMATA, its contractors and subcontractors, and current employees of WMATA’s
    contractors and subcontractors.
    10
    pay, and/or denied employment with WMATA as a result of
    WMATA’s Criminal Background Check Policy.
    MetroAccess Contractor Applicant Subclass: All African-
    American persons who, since January 1, 2013, have been terminated
    or otherwise permanently separated from their positions, suspended
    with or without pay, denied the ability to work under a WMATA
    contract, and/or denied employment with any MetroAccess
    contractor as a result of WMATA’s Criminal Background Check
    Policy.
    Badge Contractor Subclass: All African-American persons who,
    since February 23, 2012, have been terminated or otherwise
    permanently separated from their positions, suspended with or
    without pay, denied a contractor badge necessary to access
    WMATA property, denied the ability to work under a WMATA
    contract, denied the ability to work at or on WMATA property,
    and/or denied employment with a Badge Contractor as a result of
    WMATA’s Criminal Background Check Policy.
    
    Id. ¶ 41.
    Plaintiffs identify ten potential named Plaintiffs to represent the proposed classes,
    see 
    id. ¶¶ 20,
    53-107, but do not indicate which proposed subclass each named Plaintiff would
    represent. Plaintiffs make the following allegations regarding the named Plaintiffs:
       Sidney Davis “is a 69-year-old African-American man who is
    currently employed as a bus operator by WMATA.” Id ¶ 93. Mr.
    Davis fears termination if he “takes leave for more than ninety (90)
    days” because WMATA may use that leave to subject him to Policy
    7.2.3, which would disqualify him for the bus operator position due
    to a 1972 conviction, which was disclosed to WMATA when he was
    initially hired in 2003. 
    Id. ¶¶ 94-95,
    97, 99.
       Erick Little “is a 47-year-old African-American man” who
    “received a contingent offer of employment for a position as a Bus
    Operator with WMATA,” which “was rescinded three weeks later
    due to the results of his criminal background check.” 
    Id. ¶¶ 53-54.
       Timothy McClough “is a 57-year-old African-American man” who
    was terminated from his badge contractor position with a WMATA
    landscaper “based on a 22-year-old drug-related conviction, despite
    11
    his successful work as a landscaper and custodian for WMATA for
    over six years prior to his firing.” 
    Id. ¶ 63.
       Leon McKenzie “is a 52-year-old African-American man” who was
    “disqualified for a job as a bus driver at WMATA based on a drug-
    related conviction from 1995.” 
    Id. ¶ 80.
       Louia McKenzie “is a 47-year-old African-American man” who was
    “denied a position as a MetroAccess operator at First Transit . . .
    based on convictions more than 20 years old.” 
    Id. ¶ 87.
    Mr.
    McKenzie had previously been employed by MV Transportation, an
    earlier WMATA contractor, but was released when that contractor
    lost its contract with WMATA. 
    Id. ¶ 88.
       Leroy Quarles “is a 53-year-old African-American man” who was
    “fired from his job at Diamond[, a MetroAccess contractor,] as a
    WMATA MetroAccess driver/operator based on a 25-year-old
    conviction for assault and robbery . . . , despite his successful work
    at MetroAccess for over three years prior to his firing.” 
    Id. ¶ 70.
        Diamond attempted to appeal the application of Policy 7.2.3 to Mr.
    Quarles, but was ultimately unsuccessful and Mr. Quarles was
    terminated. 
    Id. ¶ 73.
       Fitzgerald Stoney “is a 62-year-old African-American man” who
    was “denied a job as a mechanic technician for a WMATA
    contractor based on convictions that are decades old.” 
    Id. ¶ 75.
       Gerald Tucker “is a 35-year-old African-American man” who was
    “denied reinstatement by WMATA for his job as a train operator
    based on a nine-year-old misdemeanor weapons charge . . . , despite
    his successful work as a WMATA bus and train operator for over
    five years prior to the denial of reinstatement.” 
    Id. ¶ 66.
       Marcello Virgil “is a 45-year-old African-American man” who was
    “fired from his job as a custodian with a WMATA contractor based
    on a drug-related conviction that was 15 years old, even though he
    disclosed the conviction before he started work.” 
    Id. ¶ 100.
       Lawrence Whitted “is a 58-year-old African-American man” who
    was terminated from his position with “Diamond as a WMATA
    MetroAccess driver/operator based on a 24-year-old drug-related
    12
    conviction, despite his successful work at MetroAccess for over five
    years prior to his firing.” 
    Id. ¶ 59.3
    Based on these allegations, the Court notes which Appendix likely applied to each
    proposed class representative, to the extent it is evident. Messrs. Little, Tucker, Leon McKenzie,
    Davis, and Virgil allege they applied for and were not hired for positions covered by Appendix
    A, that is, positions with access to the general public. Messrs. Stoney and McClough appear to
    have either applied and not been hired for, or fired from, a position covered by Appendix C, that
    is, a position without access to the general public or involving fiduciary/financial responsibilities.
    Messrs.Whitted, Leroy Quarles, and McKenzie allege they applied and were not hired for
    positions with MetroAccess contractors covered by Appendix F.
    II. LEGAL STANDARD
    A. Admissibility of Experts
    Federal Rule of Evidence 701 governs opinion testimony by lay witnesses, who
    may testify only as to opinions that are “(a) rationally based on the witness’s perception; (b)
    helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c)
    not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”
    Fed. R. Evid. 701. However, expert witnesses testify based on specialized knowledge and can
    express opinions. As Rule 702 provides:
    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;
    3
    The Court notes Plaintiffs’ Second Amended Complaint removed Messrs. Davis and Whitted as
    class representatives, but due to the redefinition of the classes as certified Messrs. Davis and
    Whitted will remain pending a revised motion to amend.
    13
    (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.
    Fed. R. Evid. 702.
    The Court serves as a gatekeeper for expert testimony. Rule 702 imposes a
    “special obligation upon a trial judge” to ensure that expert testimony is not only relevant, but
    reliable. Kuhmo Tire Co. v. Carmichael, 
    526 U.S. 137
    , 147 (1999). The presumption is that
    expert testimony is admissible, so that once a proponent has made the requisite threshold
    showing, further disputes go to weight, not admissibility. See Daubert v. Merrell Dow Pharm.,
    Inc., 
    509 U.S. 579
    , 588 (1993). “Under Daubert, the district court is required to address two
    questions, first whether the expert’s testimony is based on ‘scientific knowledge,’ and second,
    whether the testimony ‘will assist the trier of fact to understand or determine a fact in issue.’”
    Meister v. Med. Eng’g Corp., 
    267 F.3d 1123
    , 1126 (D.C. Cir. 2001) (citing 
    Daubert, 509 U.S. at 592
    ). The first inquiry “demands a grounding in the methods and procedures of science, rather
    than subjective belief or unsupported speculation.” 
    Id. at 1127;
    see also 
    Daubert, 509 U.S. at 592
    -93 (requiring a “preliminary assessment of whether the reasoning or methodology
    underlying the testimony is scientifically valid and of whether that reasoning or methodology
    properly can be applied to the facts in issue”). The second inquiry “goes primarily to relevance.”
    
    Daubert, 509 U.S. at 591
    .
    There are four factors that a court may consider in evaluating scientific validity
    under Daubert:
    (1) whether the theory or technique can be and has been tested;
    14
    (2) whether the theory or technique has been subjected to peer
    review and publication;
    (3) the method’s known or potential rate of error; and
    (4) whether the theory or technique finds general acceptance in the
    relevant scientific community.
    Ambrosini v. Labarraque, 
    101 F.3d 129
    , 133-34 (D.C. Cir. 1996) (citing 
    Daubert, 509 U.S. at 593-94
    ). Ultimately, “the inquiry is a ‘flexible one’”; no one factor is dispositive, and the four-
    factor list is not exhaustive. 
    Id. (quoting Daubert,
    509 U.S. at 593-95).
    The Court has “latitude . . . to decide whether or when special briefing or other
    proceedings are needed to investigate reliability.” Kumho 
    Tire, 526 U.S. at 152
    . “District courts
    are not required to hold a Daubert hearing before ruling on the admissibility of scientific
    evidence.” In re Hanford Nuclear Reservation Litig., 
    292 F.3d 1124
    , 1138-39 (9th Cir. 2002)
    (citing United States v. Alatorre, 
    222 F.3d 1098
    , 1100 (9th Cir. 2000); accord Oddi v. Ford
    Motor Co., 
    234 F.3d 136
    , 154 (3d Cir. 2000) (“[T]he district court already had before it the
    depositions and affidavits of the plaintiff’s experts. Nothing more was required.”). “Thus, a trial
    court properly may exercise its discretion to forego a formal pretrial hearing outside the presence
    of the jury. . . . [W]here the dispute is easily resolved, no hearing, in limine or otherwise, should
    be necessary.” 29 Wright & Miller, Federal Practice & Procedure: Evidence § 6266 (1st ed. &
    Supp.). “However, one aspect of the necessary procedure is clear: the trial court should identify
    for the record the factors bearing on reliability that it relied upon in reaching a determination.”
    
    Id. B. Class
    Certification
    Federal Rule of Civil Procedure 23 governs class certification. A party seeking
    class certification must first demonstrate that the class satisfies the requirements of Rule 23(a),
    that:
    15
    (1) the class is so numerous that joinder of all members is
    impracticable;
    (2) there are questions of law or fact common to the class;
    (3) the claims or defenses of the representative parties are typical of
    the claims or defenses of the class; and
    (4) the representative parties will fairly and adequately protect the
    interests of the class.
    Fed. R. Civ. P. 23(a). In addition to meeting the above requirements, a class must satisfy at least
    one of the three subsections of Rule 23(b). Plaintiffs in this case seek certification under
    subsections (b)(2) and (b)(3). Rule 23(b)(2) applies to cases where “the party opposing the class
    has acted or refused to act on grounds that apply generally to the class, so that final injunctive
    relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R.
    Civ. P. 23(b)(2). Rule 23(b)(3) is satisfied when the proposed class demonstrates that “questions
    of law or fact common to class members predominate over any questions affecting only
    individual members, and that a class action is superior to other available methods for fairly and
    efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). When evaluating a proposed
    class under (b)(3) a court must consider:
    (A) the class members’ interests in individually controlling the
    prosecution or defense of separate actions;
    (B) the extent and nature of any litigation concerning the
    controversy already begun by or against class members;
    (C) the desirability or undesirability of concentrating the litigation
    of the claims in the particular forum; and
    (D) the likely difficulties in managing a class action.
    
    Id. To the
    extent individual determinations are necessary in a Title VII class action to
    allow a defendant to present individual defenses or calculate individual damages, the court can
    16
    conduct individual Teamsters hearings after general liability has been established. See Int’l Bhd.
    of Teamsters v. United States, 
    431 U.S. 324
    (1977). “When the plaintiff seeks individual relief
    such as reinstatement or backpay after establishing . . . discrimination, ‘a district court must
    usually conduct additional proceedings . . . to determine the scope of individual relief.’” Wal-
    Mart Stores, Inc. v. Dukes, 
    564 U.S. 338
    , 366 (2013) (quoting 
    Teamsters, 431 U.S. at 361
    ). The
    Court may also “exercise its discretion under Rule 23(c)(4) to isolate the liability and injunctive
    relief questions, certify a single class under Rule 23(b)(2) to address those issues, and leave
    damages calculations for individualized hearings.” Houser v. Pritzker, 
    28 F. Supp. 3d 222
    , 241
    (S.D.N.Y. 2014). Rule 23(c)(4) provides that “[w]hen appropriate, an action may be brought or
    maintained as a class action with respect to particular issues.” Fed. R. Civ. P. 23(c)(4).
    When evaluating a motion for class certification, a court should not consider the
    underlying merits of the plaintiffs’ claims. See Eisen v. Carlisle & Jacquelin, 
    417 U.S. 156
    , 177-
    78 (1974) (when “determining the propriety of a class action, the question is not whether the
    plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather
    whether the requirements of Rule 23 are met”).
    C. Leave to Amend a Complaint
    Rule 15 of the Federal Rules of Civil Procedure governs the filing of amended
    pleadings, such as a complaint, after a responsive pleading has been filed. See Answer [Dkt. 89].
    As relevant here, it specifies that “a party may amend its pleading only with the opposing party’s
    written consent or the court’s leave. The court should freely give leave when justice so
    requires.” Fed. R. Civ. P. 15(a)(2). The grant or denial of leave lies in the sound discretion of
    the district court. See Firestone v. Firestone, 
    76 F.3d 1205
    , 1208 (D.C. Cir. 1996). A court may
    deny leave to amend with sufficient reason, such as futility of amendment, undue delay, bad
    17
    faith, dilatory motive, undue prejudice, or repeated failure to cure deficiencies by previous
    amendments. See Foman v. Davis, 
    371 U.S. 178
    , 182 (1962).
    III. ANALYSIS4
    A. Admissibility of Expert Opinions
    As is almost customary these days, all parties move to exclude the proposed
    expert witnesses of the opponent. The Court will grant in part and deny in part WMATA’s
    motion to exclude Dr. Farber; grant WMATA’s motion to exclude Dr. Bendick; grant in part and
    deny in part Plaintiffs’ motions to exclude Dr. Stixrud’s initial report and declaration; and deny
    WMATA’s motion to exclude Dr. Siskin’s report.
    1. Dr. Henry Farber
    “Disparate impact claims . . . ‘involve employment practices that are facially
    neutral in their treatment of different groups but that in fact fall more harshly on one group than
    another and cannot be justified by business necessity.’” Anderson v. Zubieta, 
    180 F.3d 329
    , 338
    (D.C. Cir. 1999) (quoting 
    Teamsters, 431 U.S. at 336
    ). A plaintiff can establish disparate
    treatment by offering “statistical evidence of a kind and degree sufficient to show that the
    practice in question has caused the exclusion of applicants for jobs or promotions because of
    their membership in a protected group.” Watson v. Fort Worth Bank and Trust, 
    487 U.S. 977
    ,
    994 (1988). At this juncture, the Court analyzes Plaintiffs’ allegations and not WMATA’s
    defenses or business justifications.
    4
    The Court has jurisdiction over Plaintiffs’ Title VII claims under 28 U.S.C. §§ 1331 and 1342
    and 42 U.S.C. § 2000e-16(c) and supplemental jurisdiction over the DCHRA claims under 28
    U.S.C. § 1367(a). Title VII is a law of the United States, which gives original jurisdiction to the
    federal district courts. Venue is proper in this Court because the events took place in
    Washington, D.C. and the WMATA Compact specifies the United States District Court for the
    District of Columbia as the proper venue for litigation of disputes against WMATA. See
    WMATA Compact, D.C. Code § 9-1107.01 (81).
    18
    Dr. Farber has been a Professor of Economics at Princeton University since 1991.
    He received his Ph.D. in economics from Princeton University in 1977. His scholarship and
    teaching focus on labor economics and econometrics. Dr. Farber has provided expert reports and
    testified as an expert in a number of previous cases, including Title VII cases. See Mot. to
    Exclude Farber, Ex. 1, Farber Rep. [Dkt. 138-1] ¶ 1.
    Dr. Farber’s reports address his analysis of whether African Americans have been
    disparately impacted by Policy 7.2.3. Dr. Farber conducted three separate analyses, using
    overlapping data sets. First, Dr. Farber determined the difference in passage rates under Policy
    7.2.3 between African Americans and other individuals,
    See Mot. for Cert., Ex.1, [Dkt. 124-
    1]                      ; Farber Rep. ¶¶ 17, 35-50. Secondly, Dr. Farber conducted the same
    analysis using the data provided by WMATA
    .5 See Farber Rep. ¶¶ 51-59. Finally, Dr. Farber used “a standard statistical procedure
    known as a ‘probit analysis’ to predict the probabilities of each individual’s race based on
    geographic location of residence and last name and then use[d] this information to estimate the
    rates at which African Americans and members of the comparison groups failed the criminal
    background check.” 
    Id. ¶ 60.
    5
    Dr. Farber updated this analysis on two subsequent occasions as more data became available
    from WMATA and its contractors. See Mot. to Exclude Farber, Ex. 2, Farber Rebuttal [Dkt.
    138-1]; 
    id., Ex. 3,
    Farber Supp. [Dkt. 138-1]. The Court notes that WMATA had and provided
    race data on its candidates and employees and MetroAccess’s candidates and employees, but
    does not have complete race data                   of badge contractors who are employed by
    WMATA contractors.
    19
    WMATA moves to exclude Dr. Farber’s expert report, rebuttal report,
    supplemental report, and testimony for the following reasons: (1) the report will not aid the trier
    of fact as required by Rule 702(a); and (2) Dr. Farber’s opinions are not based on sufficient data
    or accepted methods of determining the relevant issue as required by Rule 702(b), (c), and (d).6
    See Mot. to Exclude Farber [Dkt. 138]. As support for its arguments, WMATA repeats points
    , discussed below, which
    challenges the validity of Dr. Farber’s analyses and reports.
    Relevance. WMATA argues that Plaintiffs must challenge the usefulness or
    impact of each individual conviction type evaluated by Policy 7.2.3. See Mot. to Exclude Farber
    at 15-21. On this basis, it contends that Dr. Farber fails to satisfy the requirements of Rule
    702(a) that the expert information be useful to the trier of fact. WMATA takes issue with
    Plaintiffs’ attempt to construct classes based on the individual’s employer or by whom s/he
    sought to be employed, arguing that the analysis should pertain to the disqualifying effect of each
    type of conviction, and that each type of evaluated conviction comprises a separate class.7
    Plaintiffs argue that Dr. Farber’s report is relevant and useful to the trier of fact’s determination
    of disparate impact. Farber Opp. [Dkt. 161] at 29-30.
    6
    The Court notes that WMATA makes a number of other arguments, but they all go to the
    weight that should be given Dr. Farber’s analysis and whether his opinions are ultimately
    sufficient to prove a disparate impact. While these arguments may be useful on summary
    judgment or at trial, they are not relevant to the relevance or reliability of Dr. Farber’s expert
    testimony.
    7
    WMATA argues both that each conviction evaluated by Policy 7.2.3 should be considered
    separately as to its impact and that a disparate impact study must also pertain separately to each
    “position in question.” 42 U.S.C. § 2000e-2(k)(1)(A)(i); see also Mot. to Exclude Farber at 19-
    20. However, the latter argument challenges the merits of Plaintiffs’ disparate impact claim and
    the relative weight Dr. Farber’s analysis should be given by a fact finder, not whether it is
    admissible.
    20
    The dispute is a question of relevance. Evidence is relevant if it has any tendency
    to make the existence of a fact that is of consequence to the determination of the action more
    probable or less probable than it would be without the evidence. Fed. R. Evid. 401. Rule 702
    specifies that if scientific, technical, or other specialized knowledge will assist the trier of fact to
    understand the evidence or to determine a fact in issue, a witness qualified as an expert by
    knowledge, skill, expertise, training, or education, may testify thereto in the form of an opinion
    or otherwise. See Fed. R. Evid. 702. WMATA makes no argument about Dr. Farber’s expertise
    or qualifications, but instead focuses on the relevance of his report, alleging that it interpreted an
    incorrect aspect of the data, namely the employer—WMATA, MetroAccess, or badge
    contractor—rather than the type of position and conviction considered.
    The Court finds that whether Policy 7.2.3 had a disparate impact is a relevant
    issue to the trier of fact but that Dr. Farber’s current analysis in its entirety lacks sufficient basis
    to be admissible in determining that issue. Much of Dr. Farber’s analysis is focused on class
    distinctions that will not be certified and is therefore irrelevant. However, Dr. Farber’s analysis
    of MetroAccess is consistent with the classes defined and certified below and will be admitted.
    The remainder of Dr. Farber’s analysis will be excluded as irrelevant to the classes as they are
    certified by this Court.
    Reliability. WMATA argues that Dr. Farber’s reports and testimony fail to satisfy
    Rule 702(b), (c), and (d) because (1) Dr. Farber’s methodology of determining race has never
    been used before in a Title VII case, even by Dr. Farber himself; and (2) Dr. Farber did not have
    sufficient race data upon which to base his opinions, especially from badge contractors, and as a
    result used improper aggregated data. Because the Court has already excluded all but Dr.
    Farber’s analysis of MetroAccess candidates and employees, it need not address the issue of
    21
    reliability. WMATA’s challenges of reliability go only to Dr. Farber’s analysis of the badge
    contractor proposed class, which will not be admitted.
    The Court will admit Dr. Farber’s analysis of the MetroAccess class and exclude
    all other analyses as irrelevant.
    2. Dr. Marc Bendick, Jr.
    WMATA moves to exclude the expert report of Dr. Marc Bendick, Jr. on the
    grounds that it was not based on reliable principles or methods and required no scientific or
    specialized knowledge to produce. Mot. to Exclude Bendick [Dkt. 132]. WMATA argues that
    Dr. Bendick simply created an excel spreadsheet into which individual information from each
    class member could be placed to determine individual damages and overall class-wide damages
    could be determined by summing all individual determinations. 
    Id. at 8-11.
    Because Dr.
    Bendick’s expert report provides no method to calculate class-wide damages without first
    making individual determinations, WMATA argues the report does not resolve a necessary issue
    for class certification and should be excluded. 
    Id. at 15-17.
    Plaintiffs respond that Dr. Bendick’s report developed a proposed damages
    methodology based on reliable labor economic principles, see Bendick Opp. [Dkt. 153] at 6-11,
    and was focused on the feasibility of computing damages for the class, rather than the per person
    computation, because, per Court order, damages discovery is scheduled to begin after a decision
    on class certification. 
    Id. at 11-12.
    Due to the Court’s order, Dr. Bendick focused his report on
    determining the best way to calculate backpay and the potential sources which could be utilized
    to determine damages for individuals where evidentiary support is lacking. See 
    id. As discussed
    below, the Court will not certify a Rule 23(b)(3) class for monetary
    damages, but will instead conduct individual Teamsters hearings if the action proceeds past the
    22
    liability phase. Dr. Bendick’s report is, therefore, unnecessary at this stage in the litigation and
    WMATA’s motion to exclude will be granted.
    In addition, Dr. Bendick’s report fails to propose a method by which the Court or
    a fact finder could determine class-wide damages without first computing the individual damages
    of each class member and then engaging in basic math to add them up. In order to certify a class
    under Rule 23(b)(3), Plaintiffs must present a reasonable theory for computing class-wide
    damages. Plaintiffs disagree, citing Tyson Foods, Inc. v. Bouaphakeo, 
    136 S. Ct. 1036
    , 1045
    (2016), and Coleman v. District of Columbia, 
    306 F.R.D. 68
    , 86-87 (D.D.C. 2015). Neither case
    is helpful to Plaintiffs’ argument that a plan to merely add up individual damages to determine
    class-wide damages is acceptable under Rule 23(b)(3). The Bouaphakeo Plaintiffs used
    statistical sampling to extrapolate class-wide damages, rather than conducting individualized
    damages calculations. 
    See 136 S. Ct. at 1044-49
    . Plaintiffs here do not propose sampling.
    The Coleman Plaintiffs used a common formula provided by D.C. law for use in
    calculating class damages and the data existed in a common pool, making individual damages
    determinations relatively simple. 
    See 306 F.R.D. at 86-87
    . That would not be the case here.
    Each successful class member would need to be evaluated independently to determine at a
    minimum the position applied for, the date applied, the date denied the position, whether the
    hiring entity had a reason (separate from Policy 7.2.3) for failing to hire the individual, the salary
    for the position, the benefits, the retention rate, and whether the individual mitigated damages by
    finding another job. Because WMATA required that all contractors and subcontractors also use
    Policy 7.2.3, the data that may be necessary to calculate individual damages is not housed solely
    with WMATA and individual class members. Each contractor and subcontractor may need to
    23
    provide information about its hiring process for class members and data to compute each
    individual’s potential damages.
    Because the Court will not certify a Rule 23(b)(3) class, Dr. Bendick’s
    computation of damages is not relevant and will be excluded.
    3. Dr. Jora Stixrud
    Plaintiffs argue that the report and declaration of Dr. Jora Stixrud should be
    excluded because she failed to present expert opinions that are supported by methods or
    principles that can be tested. Rather, Plaintiffs argue, Dr. Stixrud merely critiqued Dr. Farber’s
    report and reached blanket conclusions that his findings are inaccurate. Plaintiffs contend that
    Dr. Stixrud cannot merely rely on her expertise and experience to opine that Dr. Farber’s
    opinions are unreliable. See Mot. to Exclude Stixrud Rep. [Dkt. 135]. WMATA emphasizes that
    Dr. Stixrud will be presented as a pure rebuttal expert and not a merits expert. Thus, Dr.
    Stixrud’s role is to “poke holes,” not provide an alternative method to assess Policy 7.2.3. See
    Stixrud Opp. [Dkt. 157]. WMATA contends that Dr. Stixrud properly relies on her expertise and
    experience in her anticipated role, as she has explained in a declaration attached to WMATA’s
    opposition.                                              Plaintiffs also move to exclude Dr.
    Stixrud’s declaration, citing the same deficiencies in support and evidence to justify her opinions
    and lack of timely notice.8 Mot. to Exclude Stixrud Decl. [Dkt. 162]. WMATA responds that
    8
    Federal Rule of Civil Procedure 26(a)(2) governs the disclosure of expert testimony and
    requires disclosure either 90 days before trial or, if intended as rebuttal, 30 days after the other
    party’s submission. Fed. R. Civ. P. 26(a)(2)(D). Rule 26(a)(2)(E) permits supplemental
    disclosures when required under Rule 26(e). Fed. R. Civ. P. 26(a)(2)(E). Under Rule 26(e)
    parties must supplement disclosures “in a timely manner if the party learns that in some material
    respect the disclosure or response is incomplete or incorrect,” and specifically with respect to
    experts, the duty to disclose extends to the expert’s report and deposition and must be made “by
    the time the party’s pretrial disclosures” are due. Fed. R. Civ. P. Rule 26(e). Finally, Rule
    37(c)(1) governs the remedy if an improper disclosure occurs, mandating the exclusion of the
    24
    Dr. Stixrud’s declaration offers no new conclusions, but instead reaffirms previously disclosed
    opinions and offers additional support. Stixrud Decl. Opp. [Dkt. 175]. The Court will address
    both motions together.
    While it is not always necessary that an expert rely on scientific or technical
    knowledge to be admissible and provide reliable and useful evidence to a trier of fact, a federal
    court serves a “gatekeeping” function when reviewing reports and proposed testimony of non-
    scientific experts. Kumho 
    Tire, 526 U.S. at 141
    ; see also Daubert, 
    509 U.S. 579
    . An expert
    witness with experience relevant to a pertinent issue in a case may opine and testify about the
    reliability of another expert’s report or testimony. See Kumho 
    Tire, 526 U.S. at 156
    (stating that
    “no one denies that an expert might draw a conclusion from a set of observations based on
    extensive and specialized experience”). However, the Advisory Committee Notes accompanying
    the 2000 amendments of Federal Rule of Evidence 702, which deals with the admission of expert
    testimony, explain that
    If the witness is relying solely or primarily on experience, then the
    witness must explain how that experience leads to the conclusion
    reached, why that experience is a sufficient basis for the opinion,
    and how that experience is reliably applied to the facts. The trial
    court’s gatekeeping function requires more than simply “taking the
    expert’s word for it.” . . . The more subjective and controversial the
    expert’s inquiry, the more likely the testimony should be excluded
    as unreliable.
    Advisory Committee Notes, 2000 Amendments, Fed. R. Evid. 702; see also Twin Cities Bakery
    Workers Health & Welfare Fund v. Biovail Corp., No. 01-2197, 
    2005 WL 3675999
    , at *4
    (D.D.C. Mar. 31, 2005), aff’d sub nom. Meijer, Inc. v. Biovail Corp., 
    533 F.3d 857
    (D.C. Cir.
    2008). The Ninth Circuit also recognized that a court must do more than “take the expert’s word
    supplemental information “unless the failure was substantially justified or is harmless.” Fed. R.
    Civ. P. 37(c)(1).
    25
    for it.” See Daubert v. Merrell Dow Pharm., Inc., 
    43 F.3d 1311
    , 1319 (9th Cir. 1995) (“We’ve
    been presented with only the experts’ qualifications, their conclusions and their assurances of
    reliability. Under Daubert, that’s not enough.”).
    Taking both Dr. Stixrud’s initial report and declaration together, the Court finds
    that Dr. Stixrud has the experience and qualifications necessary to critique Dr. Farber and
    adequately explains the reasons behind her criticisms of Dr. Farber’s report. The Court also
    finds that the delay in disclosing of Dr. Stixrud’s declaration was harmless. Plaintiffs will have
    the opportunity during the merits phase to delve further into Dr. Stixrud’s critiques and evaluate
    any additional support offered by the supplemental declaration.
    Plaintiffs also specifically move to exclude all portions of Dr. Stixrud’s report
    which render legal conclusions. Plaintiffs note two allegedly legal opinions in Dr. Stixrud’s
    report: (1) the relevance of Dr. Farber’s report; and (2) the lack of foundation for Dr. Farber’s
    opinions. Mot. to Exclude Stixrud at 2-3. WMATA argues that the “legal conclusions”
    identified by Plaintiffs are not legal conclusions, but instead “opinions on the technical and
    methodological flaws in Dr. Farber’s studies.” Stixrud Opp. at 13. It is well established that
    experts may not express legal opinions or opinions about whether a legal standard has been
    satisfied. See, e.g., Burkhart v. WMATA, 
    112 F.3d 1207
    , 1212 (D.C. Cir. 1997) (“Expert
    testimony that consists of legal conclusions cannot properly assist the trier of fact in either
    respect, and thus it is not otherwise admissible.”); United States ex rel. Mossey v. Pal–Tech, Inc.,
    
    231 F. Supp. 2d 94
    , 98 (D.D.C. 2002) (“[E]xpert testimony consisting of legal conclusions will
    not be permitted because such testimony merely states what result should be reached, thereby
    improperly influencing the decisions of the trier of fact and impinging upon the responsibilities
    of the court.”). An expert may, however, “give h[er] opinion as to facts that, if found, would
    26
    support a conclusion that the legal standard at issue” was or was not satisfied. Rothe Dev., Inc. v.
    Dep’t of Def., 
    107 F. Supp. 3d 183
    , 200 (D.D.C. 2015).
    The Court finds that Dr. Stixrud’s statements about the relevance of or foundation
    for Dr. Farber’s opinions are not permissible expert opinions. Contrary to WMATA’s
    arguments, those statements do not discuss the technical or methodological aspects of Dr.
    Farber’s opinion, or give Dr. Stixrud’s opinion as to facts, but instead state her conclusions that a
    legal standard is not met. Dr. Stixrud will not be permitted to advance legal conclusions or
    opinions on the law at issue in this case. Any opinions or portions of Dr. Stixrud’s report or
    declaration rendering a legal opinion will be stricken. The Court will grant in part and deny in
    part Plaintiffs’ motions to exclude Dr. Stixrud’s initial report and declaration.
    4. Dr. Bernard R. Siskin
    WMATA moves to strike the report and testimony of Dr. Bernard R. Siskin as
    untimely and improper rebuttal to WMATA’s expert, Dr. Jora Stixrud. WMATA argues that Dr.
    Siskin presents “a new and alternative statistical methodology” and was only disclosed as an
    expert on May 3, 2016, the same day Plaintiffs filed their Motion for Class Certification. Mot. to
    Exclude Siskin [Dkt. 139] at 1. Dr. Siskin critiques Dr. Stixrud’s report and uses Bayesian
    Improved Surname Geocoding (BISG) to estimate the number of African Americans in the
    various data sets. He concludes that Policy 7.2.3 has a statistically significant disparate impact
    on African-American candidates. See 
    id., Ex. 1,
    Siskin Rep. [Dkt. 139-1] ¶¶ 5, 11-19. WMATA
    argues that Dr. Siskin is not a rebuttal expert, but rather an expert in support of class certification
    and should, therefore, have been disclosed much sooner. See Mot. to Exclude Siskin at 3-6.
    Because Dr. Stixrud, WMATA’s expert, did not propose her own statistical model, WMATA
    argues that Dr. Siskin’s new statistical model is not rebuttal to Dr. Stixrud but, rather, a rebuttal
    27
    to Plaintiffs’ own expert, Dr. Farber. 
    Id. at 3-4.
    WMATA stresses that Dr. Stixrud is not a
    merits expert. Therefore, a rebuttal expert focused on the merits is not proper rebuttal.9
    Plaintiffs respond that Dr. Siskin’s report was timely and is proper rebuttal to Dr.
    Stixrud because it refutes her statement that it is “impossible to draw meaningful conclusions,”
    Stixrud Rep. at 7, on disparate impact from the data provided by WMATA and its contractors
    and subcontractors. Siskin Opp. [Dkt. 160] at 7-11. Specifically, Plaintiffs argue that any
    additional methodology which calculates disparate impact using the aforementioned data refutes
    Dr. Stixrud’s conclusion that such activity is impossible. 
    Id. at 8.
    Dr. Siskin uses an alternative
    method to determine disparate impact and demonstrate the “possibility” of that type of analysis.
    At the parties’ joint request, the Court extended the deadline for Motions for Class
    Certification and replies to expert disclosures to May 3, 2016. See 4/28/2016 Minute Order.
    Plaintiffs disclosed Dr. Siskin’s report on May 3, 2016. Expert rebuttal testimony “is intended
    solely to contradict or rebut evidence on the same subject matter identified by another party.”
    Fed. R. Civ. P. 26(a)(2)(D)(ii). Dr. Stixrud’s expert report contained no evidence or
    methodology on the issue of disparate impact. Instead, as discussed above, Dr. Stixrud focused
    on statements aimed at undermining Dr. Farber’s conclusions. Her expert report contained no
    independent assessment of disparate impact and presented no alternative theory. Under a strict
    construction of Rule 26(a)(2)(D)(ii) where an expert report contains no affirmative evidence, no
    rebuttal may be permitted.
    However, the D.C. Circuit has found that a district court has “broad discretion in
    determining whether to admit or exclude expert testimony” and no per se rule exists that new
    9
    WMATA also requests the opportunity to depose and test Dr. Siskin’s theory and file a
    supplemental motion to exclude based on Rule 702 and Daubert. 
    Id. at 7-8.
    28
    expert testimony is inappropriate rebuttal testimony. United States v. Gatling, 
    96 F.3d 1511
    ,
    1523 (D.C. Cir. 1996). District courts routinely permit new experts for rebuttal purposes and
    permit rebuttal experts to use new methodologies to rebut the opinions of the opposing expert.
    See, e.g., South Carolina v. United States, No. 12-203, 
    2012 WL 11922224
    , at *2 (D.D.C. Aug.
    15, 2012) (permitting the use of a new expert on rebuttal); Scott v. Chipotle Mexican Grill, Inc.,
    
    315 F.R.D. 33
    (S.D.N.Y. 2016) (permitting the use of a new expert and new methodology on
    rebuttal); see also Siskin Opp. at 8 (collecting cases).
    Although Dr. Siskin’s report does not meet the definition of rebuttal testimony,
    the Court finds no harm or prejudice to its introduction at this stage in the litigation. WMATA
    indicates that it would like the opportunity to depose Dr. Siskin and consider challenging the
    admissibility of Dr. Siskin’s report under Rule 702 and Daubert. The Court agrees that if
    Plaintiffs wish to rely on Dr. Siskin’s report in the merits phase of the case, they must identify
    Dr. Siskin as a merits expert and allow for a deposition. The Court will, therefore, deny
    WMATA’s motion to exclude Dr. Siskin’s report.
    B. Class Certification
    Rule 23 of the Federal Rules of Civil Procedure controls class certification.
    Plaintiffs move for certification under Rule 23(a), (b)(2), and (b)(3) (or alternatively (c)(4)), and
    request appointment of Plaintiffs’ counsel as class counsel under Rule 23(g).
    Rule 23 provides that a class seeking certification must meet the four
    requirements of subsection (a), as well as at least one of the requirements of subsection (b). Rule
    23(a) requires a class to show sufficient numerosity, commonality, typicality, and adequacy of
    the proposed class, as well as adequacy of the proposed class counsel. Fed. R. Civ. P. 23(a).
    Plaintiffs move for a hybrid class under Rule 23(b)(2) and (b)(3). Rule 23(b)(2) requires
    29
    plaintiffs to show that “the party opposing the class has acted or refused to act on grounds that
    apply generally to the class, so that final injunctive relief or corresponding declaratory relief is
    appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Rule 23(b)(3) requires a
    showing that “questions of law or fact common to class members predominate over any
    questions affecting only individual members, and that a class action is superior to other available
    methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). A
    party satisfies (b)(3) by demonstrating that issues common to the class predominate over
    individual issues and proceeding as a class will be both efficient and fair.
    Plaintiffs contend that Policy 7.2.3 has been enforced by WMATA through a
    centralized process that is uniformly and consistently applied to job candidates applying to
    WMATA, its contractors, and MetroAccess. Plaintiffs further allege that Policy 7.2.3 “has an
    unjustified discriminatory effect on African Americans . . . [that] raises a common, class-wide
    question.” Mem. in Supp. of Mot. for Cert. [Dkt. 124-1] at 1. Plaintiffs seek a declaration that
    Policy 7.2.3 has a disparate impact and an injunction preventing WMATA and its contractors
    and subcontractors from applying Policy 7.2.3 further. Finally, Plaintiffs assert that individual
    damages can be efficiently resolved on a class-wide basis as a hybrid class, see Eubanks v.
    Billington, 
    110 F.3d 87
    , 96 (D.C. Cir. 1997), or through Teamsters hearings. 
    See 431 U.S. at 360
    .
    WMATA responds that the First Amended Complaint targets only criteria that:
    (1) permanently disqualify for felony drug convictions for certain positions; (2) permanently
    disqualify for misdemeanor or felony convictions for possession a weapon during the
    commission of a crime for all job positions; (3) permanently disqualify for felony convictions for
    certain violent crimes for all job positions; and (4) permanently disqualify for two misdemeanor
    30
    convictions in the last five years or two felony convictions in the last ten years for certain
    property crimes for all positions. Cert. Opp. at 4 (citing FAC ¶ 11). WMATA argues that Policy
    7.2.3 distinguishes among crimes and time periods to establish more than 150 criteria for
    evaluation of criminal background, type of crime, and position sought.
    Plaintiffs retort that Policy 7.2.3 is a single, uniform hiring policy or set of criteria
    that WMATA and its badge contractors have applied to all candidates since February 23, 2012;
    and MetroAccess has applied to all candidates since January 1, 2013.
    Plaintiffs move for certification under a hybrid Rule 23(b)(2) and (b)(3) class,
    seeking both injunctive and individual monetary damages for the alleged discriminatory policy.
    Alternatively, if the Court determines monetary damages are not suitable for class-wide
    determination, Plaintiffs propose certification under (b)(2) for liability and injunctive relief
    determinations and the application of (c)(4) to allow the question of liability to be answered on a
    class-wide basis, but individual Teamsters hearings on the damages owed to each specific class
    member. The Court finds that certification is proper under Rule 23(b)(2) and (c)(4) and will
    certify the three classes defined below for a determination of liability and injunctive relief under
    (b)(2), but will withhold any individual damages determinations until Teamsters hearings.
    1. Fed. R. Civ. P. 23(a)
    a. Numerosity
    Rule 23(a)(1) requires that the class be “so numerous that joinder of all members
    is impracticable.” Fed. R. Civ. P. 23(a)(1). Numerosity does not “impose[] [an] absolute
    limitation[],” but rather “requires examination of the specific facts of each case.” Gen. Tel. Co.
    of the Nw., Inc. v. EEOC, 
    446 U.S. 318
    , 330 (1980). It is generally accepted by courts in this
    District that numerosity is satisfied and that joinder is impracticable where a proposed class has
    at least forty members. See Cohen v. Chilcott, 
    522 F. Supp. 2d 105
    , 114 (D.D.C. 2007); Bynum
    31
    v. District of Columbia, 
    214 F.R.D. 27
    , 32-33 (D.D.C. 2003). Plaintiffs also need not provide the
    exact number of potential class members to satisfy the requirement, but can provide an estimate
    supported by a reasonable basis to believe it is accurate. 
    Bynum, 214 F.R.D. at 32-33
    ; Pigford v.
    Glickman, 
    182 F.R.D. 341
    , 347-48 (D.D.C. 1998).
    Plaintiffs state that the overall class includes over 1000 individuals; the WMATA
    direct candidates subclass includes approximately 310 individuals; the badge contractor subclass
    includes approximately 210 individuals; and the MetroAccess contractor subclass includes
    approximately 535 individuals. WMATA does not dispute the numbers and makes no arguments
    against numerosity in its opposition to class certification. The proposed class and subclasses
    clearly contain sufficient numbers to make joinder impracticable and satisfy the numerosity
    requirement of Rule 23(a)(1).10
    b. Commonality
    Rule 23(a)(2) requires that there be questions of law or fact common to the class.
    Fed. R. Civ. P. 23(a)(2). “Commonality requires the plaintiff[s] to demonstrate that the class
    members ‘have suffered the same injury.’” 
    Wal-Mart, 564 U.S. at 349-50
    (quoting Gen. Tel. Co.
    of Sw. v. Falcon, 
    457 U.S. 147
    , 157 (1982)). Plaintiffs’ “claims must depend up on a common
    contention . . . capable of classwide resolution—which means 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. at 350.
    “A plaintiff’s burden is to ‘bridge the gap’ between her individual claim and ‘the
    existence of a class of persons who have suffered the same injury as that individual.’” Moore v.
    Napolitano, 
    926 F. Supp. 2d 8
    , 29 (D.D.C. 2013) (quoting 
    Falcon, 457 U.S. at 157
    ).
    10
    Even as redefined, the Court finds numerosity of the three distinct classes.
    32
    In a Title VII case, a proposed class may have sufficient commonality if they
    posit a systematic act or overarching process or procedure that is the cause of their harm, even if
    the specific harm to each class member might be different, such as the specific position lost or
    the amount of backpay owed. See 
    Bynum, 214 F.R.D. at 33-34
    ; see also 
    Wal-Mart, 564 U.S. at 353
    (finding “significant proof that an employer operated under a general policy of
    discrimination conceivably could justify a class of both applicants and employees if the
    discrimination manifested itself in hiring and promotion practices in the same general fashion”).
    Commonality is established when “harm alleged by each class member was the result of the
    same corporate-wide policies,” because a question common to all members will be whether that
    policy was unlawful. DL v. District of Columbia, 
    713 F.3d 120
    , 127 (D.C. Cir. 2013).
    Plaintiffs argue the proposed class meets the commonality standard because it
    challenges a single, non-discretionary employment policy that was applied to all members of the
    class. Despite the fact that Plaintiffs applied to work for WMATA directly or to work for
    different MetroAccess and badge contractors that provide services to WMATA, they argue the
    common question of discriminatory impact can be answered as to all class members because
    Policy 7.2.3 was applied universally to all candidates. Specifically, WMATA mandated its use
    for all WMATA employees and badge contractors when the Policy originally came into effect in
    February 2012, and expanded it to MetroAccess on January 1, 2013. WMATA does not dispute
    commonality.
    As discussed above, Policy 7.2.3 contains separate Appendices indicating the
    types and ages of convictions that prohibit an individual from gaining employment in a particular
    job category. The Appendices cover positions that are public facing, involve financial work,
    MetroAccess positions, and all other positions. All positions within WMATA and its contractors
    33
    and subcontractors are covered by Policy 7.2.3. Policy 7.2.3 is applied with no method to appeal
    except for the inaccuracy of a report. There is no space for individual candidates to explain or
    mitigate the findings in the Policy 7.2.3 background check; and contractors or subcontractors
    may not override the results to hire a candidate to work on WMATA property.
    The Court finds that the question of whether an Appendix from Policy 7.2.3 has
    an unjustified disparate impact on African-American candidates for employment with WMATA
    or its contractors is a common question, the answer to which will resolve a significant question
    as to the entire class. The fact that candidates applied for positions with different contractors,
    subcontractors, or WMATA directly does not affect the commonality of the question because
    Policy 7.2.3 was mandated by WMATA for non-discretionary application to all hiring decisions.
    The commonality requirement of Rule 23(a)(2) is, therefore, satisfied.
    c. Typicality
    Rule 23(a)(3) requires a finding that “the claims or defenses of the representative
    parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The
    typicality requirement aims at ensuring “‘that the class representatives have suffered injuries in
    the same general fashion as absent class members.’” In re Vitamins Antitrust Litig., 
    209 F.R.D. 251
    , 260 (D.D.C. 2002) (quoting Thomas v. Albright, 
    139 F.3d 227
    , 228 (D.C. Cir. 1998)). The
    typicality requirement is satisfied “‘if each class member’s claim arises from the same course of
    events that led to the claims of the representative parties and each class member makes similar
    legal arguments to prove the defendant’s liability.’” In re Lorazepam & Clorazepate Antitrust
    Litig., 
    202 F.R.D. 12
    , 27 (D.D.C. 2001) (quoting 
    Pigford, 182 F.R.D. at 349
    ). “A plaintiff’s
    claim is typical if it arises from the same event or practice or course of conduct that gives rise to
    34
    a claim of another class member’s where his or her claims are based on the same legal theory.”
    Stewart v. Rubin, 
    948 F. Supp. 1077
    , 1088 (D.D.C. 1996), aff’d, 
    124 F.3d 1309
    (D.C. Cir. 1997).
    In employment discrimination class actions, typicality and commonality “tend to
    merge.” 
    Falcon, 457 U.S. at 157
    n.13. “Both serve as guideposts for determining whether under
    the particular circumstances maintenance of a class action is economical and whether the named
    plaintiff’s claim and the class claims are so interrelated that the interests of the class members
    will be fairly and adequately protected in their absence.” 
    Id. Factual variations
    between the
    claims of class representatives and the claims of other class members do not negate typicality.
    See Wagner v. Taylor, 
    836 F.2d 578
    , 591 (D.C. Cir. 1987) (noting that “typicality is not
    destroyed merely by factual variations”).
    Plaintiffs argue that typicality is satisfied because each class member’s claim
    arises from the application of Policy 7.2.3 to his or her candidacy and subsequent denial of
    employment. Additionally, each class member claims Policy 7.2.3 had a disparate impact due to
    his/her race. WMATA argues typicality cannot be met because (1) some named plaintiffs were
    disqualified from employment for legitimate, non-discriminatory reasons and (2) each named
    plaintiff’s disqualification arose under a different screening criteria in Policy 7.2.3 and will
    require individual evaluation to determine if the particular screening criteria at issue for each
    plaintiff has a discriminatory impact.
    Although WMATA argues it has person-specific legitimate non-discriminatory
    defenses for its decisions not to hire, limited factual distinctions between class members does not
    destroy typicality. Plaintiffs’ claims are typical if they arise from the same course of events—the
    application of Policy 7.2.3—and class members make similar legal arguments—Policy 7.2.3 has
    a disparate impact on African-American candidates. Clearly, Plaintiffs have done just that.
    35
    Defenses specific to individual plaintiffs will have “little if any relevance to the outcome” of the
    overall, but not specific, “liability and injunctive relief phases” of this litigation. Houser, 28 F.
    Supp. 3d at 248; see also Johnson v. District of Columbia, 
    248 F.R.D. 46
    , 53 (D.D.C. 2008)
    (finding that typicality was satisfied because all class members were subject to blanket searches
    prior to presentment, even though the “circumstances of the strip searches may have varied by
    some degree”); 
    Bynum, 214 F.R.D. at 35
    (finding typicality was satisfied because all injuries of
    all named plaintiffs arose from the same conduct, despite the fact that the injuries themselves
    were not identical as the lengths of each individuals’ detention varied).
    WMATA also argues that each prior conviction that First Choice screens for
    constitutes a separate aspect of Policy 7.2.3 and must be assessed individually. Plaintiffs,
    however, perceive Policy 7.2.3 as a single construct that applies to each class member,
    suggesting that each class representative is “typical” of the rest of the class. Alternatively,
    Plaintiffs suggest dividing the proposed class by the part of WMATA for which the individual
    worked or applied: WMATA, badge contractors, or MetroAccess. While the Court does not
    agree with WMATA that each conviction must be evaluated separately, it also does not agree
    with Plaintiffs that Policy 7.2.3 applies in its entirety to each potential class member. Each
    candidate or employee is subject to only one of the four Appendices included in Policy 7.2.3,
    which are targeted at specific job categories.
    Policy 7.2.3 is similar to the policies discussed in Frazier v. Consol. Rail Corp.,
    No. 85-845, 
    1986 WL 11237
    (D.D.C. July 31, 1986), and Houser v. Pritzker, 
    28 F. Supp. 3d 222
    (S.D.N.Y. 2014), but not to the extreme argued by WMATA. Each applicant or employee of
    WMATA is affected by the Appendix that pertains to the position they apply for, but not the
    remaining Appendices. Also, as discussed above, while similar, the Appendices may cover
    36
    slightly different types of criminal convictions and be more or less accepting of the existence of
    prior convictions in those categories. In order to represent a class containing all African-
    American candidates under Policy 7.2.3 the class representatives must cover all the Appendices.
    See 
    Houser, 28 F. Supp. 3d at 247
    (finding typicality because the class representatives included
    at least one individual who was harmed by each aspect of the employment practice); Frazier,
    
    1986 WL 11237
    (finding lack of typicality because class representatives only challenged
    particular aspects of the training program and approved of other aspects of the program that
    would impact other putative class members but not themselves).
    Class representatives’ claims are typical of the rest of the class if they address
    each part of Policy 7.2.3. The Court finds, as alleged, Plaintiffs have identified class
    representatives covering Appendices A, C, and F, but have failed to present a class representative
    to cover Appendix B, related to financial positions. Therefore, the class representatives are
    typical of other class members who were candidates for positions covered by Appendices A, C,
    and F of Policy 7.2.3.
    d. Adequacy
    Rule 23(a)(4) requires a finding that “the representative parties will fairly and
    adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “Two criteria for
    determining the adequacy of representation are generally recognized: 1) the named
    representative must not have antagonistic or conflicting interests with the unnamed members of
    the class, and 2) the representative must appear able to vigorously prosecute the interests of the
    class through qualified counsel.” Twelve John Does v. District of Columbia, 
    117 F.3d 571
    , 575
    (D.C. Cir. 1997).
    Plaintiffs argue that the named plaintiffs are adequate because the named
    plaintiffs are not antagonistic to the unnamed class members and are able to vigorously represent
    37
    the interests of the class. In fact, Plaintiffs note that named plaintiffs have been actively involved
    in the litigation since the very beginning, answering discovery and appearing for depositions as
    required. WMATA’s challenge to adequacy parallels its initial challenge to typicality, that some
    named class members are “clear losers” because of legitimate, non-discriminatory defenses to
    the failure to hire or because the named plaintiff failed to disclose prior convictions in the
    Complaint itself. Cert. Opp. at 19-22.
    In determining if a named representative is adequate, a court does not assess the
    ultimate strength or weakness of an individual claim. “A plaintiff is not disqualified as class
    representative simply because ‘he may fail to prove his case or [because] the defendant may have
    good defenses.’” 
    Houser, 28 F. Supp. 3d at 248
    (quoting Robinson v. Sheriff of Cook Cnty., 
    167 F.3d 1155
    , 1158 (7th Cir. 1999)). The ultimate inability to maintain an individual claim for
    damages due to a legitimate defense to that named plaintiff’s claim of discrimination does not
    create a conflict of interest that destroys the adequacy of class representatives. The merits of an
    individual’s claims will not cause the court to determine an individual is an inadequate
    representative, as the merits are not at issue at the class certification stage. However, if it is clear
    at the class certification stage that an individual has not suffered injury as a result of the alleged
    discriminatory practice, that individual may be excluded as a named class representative. An
    individual who did not suffer injury is “simply not eligible to represent a class of persons who
    did allegedly suffer injury.” East Texas Motor Freight Sys., Inc. v. Rodriguez, 
    431 U.S. 395
    , 404
    (1977).
    WMATA argues that Louia McKenzie and Leroy Quarles are inadequate named
    plaintiffs because they lack standing, as they were not injured by the allegedly discriminatory
    Policy 7.2.3, but rather were not hired due to false statements or failures to disclose convictions
    38
    on their applications, not the existence of the convictions themselves. Cert. Opp. at 19-21. The
    injury-in-fact requirement of standing is met in a Title VII case when there is an adverse
    employment action. See Douglas v. Donovan, 
    559 F.3d 549
    , 551-52 (D.C. Cir. 2009) (holding
    that “[i]n order to present a viable claim of employment discrimination under Title VII, a
    plaintiff must show he suffered an adverse employment action”); see also Lujan v. Defs. of
    Wildlife, 
    504 U.S. 555
    , 560 (1992). Both Louia McKenzie and Leroy Quarles allege they were
    not hired due to Policy 7.2.3, which is alleged to have a disparate impact on African-American
    candidates. The merits of their allegations are not part of the analysis at the time of class
    certification.
    WMATA also argues that Mr. McClough and Mr. Little are inadequate class
    representatives because the Second Amended Complaint does not accurately represent the
    entirety of their criminal histories, therefore signifying that these class representatives lack the
    necessary credibility to represent the class. Cert. Opp. at 21-22. WMATA offers no legal
    support for its theory that failure to include all facts regarding the criminal history of proposed
    class representatives harms the credibility of the individual representatives. Although it may
    implicate a defense, these Plaintiffs’ alleged failures to list all past convictions in the Second
    Amended Complaint does not immediately bear on the application of Policy 7.2.3 to them in this
    context or render them unfit to represent the class. The named plaintiffs satisfy the adequacy
    requirement of Rule 23.
    Additionally, even if some class members cannot overcome WMATA’s defenses,
    WMATA has not argued that it has a legitimate, non-discriminatory reason for failing to hire all
    the named plaintiffs. Thus, even if some named plaintiffs are eventually excluded from relief,
    others will remain. The Court also finds class counsel satisfies the adequacy requirement. As
    39
    noted by Plaintiff, Mem. in Supp. of Mot. for Cert. at 36, class counsel are experienced in class
    actions and other complex litigation. WMATA does not question the adequacy of class counsel.
    2. Fed. R. Civ. P. 23(b)(2)
    In addition to satisfying the requirements of Rule 23(a), Plaintiffs must move for
    certification under at least one subsection of Rule 23(b). Plaintiffs move for a hybrid Rule
    23(b)(2) and (b)(3) class. A class action under Rule 23(b)(2) may be maintained if “the party
    opposing the class has acted or refused to act on grounds that apply generally to the class, so that
    final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a
    whole.” Fed. R. Civ. P. 23(b)(2). “The key to the (b)(2) class is the indivisible nature of the
    injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be
    enjoined or declared unlawful only as to all of the class members or as to none of them.” Wal-
    
    Mart, 564 U.S. at 360
    . “‘[C]ivil rights cases against parties charged with unlawful, class-based
    discrimination are prime examples’ of what (b)(2) is meant to capture.” 
    Id. at 361
    (quoting
    Amchem Prods., Inc. v. Windsor, 
    521 U.S. 591
    , 614 (1997)).
    First, Plaintiffs argue Policy 7.2.3 is generally applicable to the class because it
    “applies to all candidates and employees,” of WMATA, badge contractors, and MetroAccess and
    because it was designed to be comprehensive and non-discretionary in its application. Policy
    7.2.3. at WMATA0002227. Plaintiffs also argue that “a single injunction or declaratory
    judgment would provide relief to each member of the class” because the requested injunction
    would prohibit WMATA from taking any further action under Policy 7.2.3, which would apply
    equally to all members of the proposed class. 
    Wal-Mart, 560 U.S. at 360
    .
    WMATA again argues that Plaintiffs’ failure to identify which parts of Policy
    7.2.3 produce a disparate impact, or failure to identify the “particular challenged employment
    practice,” prohibits certification of the class under (b)(2). As the Court addressed above in the
    40
    discussion on typicality, Policy 7.2.3 can be understood as four separate practices, due to the four
    Appendices. Because only one Appendix will apply to each putative class member, each
    Appendix must be considered a separate employment practice. The Court, therefore, interprets
    Plaintiffs’ challenge to Policy 7.2.3 in its entirety to be a challenge to each of the Appendices, as
    to one of which it has no representative plaintiff.
    WMATA also argues that Plaintiffs conceded in depositions that some criminal
    convictions should be considered or are relevant to determinations of whether an individual is
    suited for a position as a bus driver or a MetroAccess driver. Therefore, WMATA argues,
    Plaintiffs have conceded that Policy 7.2.3 is, in some ways, properly tailored to exclude
    individuals with specific, relevant convictions. Plaintiffs’ concessions do not concede the
    justification of Policy 7.2.3 as a whole, but rather concede that it is not unreasonable to have
    some criminal convictions used as disqualifying offenses for specific positions. Plaintiffs’
    argument here, however, is that Policy 7.2.3 is a blanket-prohibition or restriction on numerous
    types of convictions and is applied to all positions within WMATA and its contractors and
    subcontractors.
    The Court finds that Plaintiffs have identified three of the Appendices of Policy
    7.2.3 as the “particular challenged employment practice” and have adequately demonstrated that
    every putative class member will be affected by one of the three. Because no class
    representative has been identified that was harmed by Appendix B, the Court will not certify a
    class that falls under that Appendix. The Court also finds that an injunction applicable to the
    entire class could be fashioned upon a finding of liability.
    3. Fed. R. Civ. P. 23(b)(3)
    To certify a class under Rule 23(b)(3) class, the Court must find that “the
    questions of law or fact common to class members predominate over any questions affecting
    41
    only individual members, and that a class action is superior to other available methods for fairly
    and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). Among the factors the
    Court should examine in making its determination are:
    (A) the class members’ interests in individually controlling the
    prosecution or defense of separate actions;
    (B) the extent and nature of any litigation concerning the
    controversy already begun by or against class members;
    (C) the desirability or undesirability of concentrating the litigation
    of the claims in the particular forum; and
    (D) the likely difficulties in managing a class action.
    
    Id. The requirements
    of (b)(3) are often divided into two categories, superiority and
    predominance. The Court will examine these two requirements separately.
    a. Superiority
    The first requirement of Rule 23(b)(3) is superiority. Superiority is met when a
    court determines that a class action is superior to other available means of adjudication. See Fed.
    R. Civ. P. 23(b)(3). The superiority requirement ensures that resolution by class action will
    “achieve economies of time, effort, and expense, and promote . . . uniformity of decision as to
    persons similarly situated, without sacrificing procedural fairness or bringing about other
    undesirable results.” 
    Amchem, 521 U.S. at 615
    .
    Plaintiffs argue a class action is superior to individual actions due to the cost of
    litigating a disparate impact case and the relatively low damages available to a single successful
    litigant. Individual litigants often do not have the incentive to shoulder the burden of a complex
    case, but when combined into a class, the risks can be shared. WMATA makes no challenge to
    the question of superiority and this Court agrees. Title VII disparate impact cases often require
    complicated and costly expert evidence and involve voluminous discovery. When a group of
    42
    individuals may be disparately affected by a single policy, resolving the question of liability on a
    class-wide basis is the most efficient use of limited judicial resources and allows for consistent
    findings for all similarly-situated individuals.
    b. Predominance
    The second requirement of Rule 23(b)(3) is that common issues predominate over
    issues that only affect individual class members. Although common issues must predominate,
    they need not be the dispositive issues of the litigation. See 
    Vitamins, 209 F.R.D. at 262
    . In
    order to meet the predominance requirement of Rule 23(b)(3), a plaintiff must establish that the
    issues in the class action that are subject to generalized proof, thus applicable to the class as a
    whole, predominate over those issues that are subject only to individualized proof. See 
    Amchem, 521 U.S. at 623
    . “There is no definitive test for determining whether common issues
    predominate, however, in general, predominance is met ‘when there exists generalized evidence
    which proves or disproves an element on a simultaneous, class-wide basis, since such proof
    obviates the need to examine each class members’ individual position.’” 
    Vitamins, 209 F.R.D. at 262
    (citing In re Potash Antitrust Litig., 
    159 F.R.D. 682
    , 693 (D. Minn. 1995)). Rule 23(b)(3)’s
    predominance requirement is “even more demanding than Rule 23(a).” Comcast Corp. v.
    Behrend, 
    133 S. Ct. 1426
    , 1432 (2013).
    Plaintiffs argue the common question of Policy 7.2.3’s disparate impact
    predominates over any individual issues and present Dr. Marc Bendick’s methodology for
    determining damages as a class-wide system for damages. WMATA argues that individual
    damages questions will overwhelm the common issues, citing Comcast for the proposition that a
    class must establish that “damages are capable of measurement on a classwide basis” in order to
    satisfy the predominance requirement of Rule 
    23(b)(3). 131 S. Ct. at 1433
    . WMATA clarifies
    that individual questions will include whether the hiring entity had a reason, separate from Policy
    43
    7.2.3, for failing to hire the individual class member, whether any additional steps were required
    before the official offer of employment was extended, and whether the individual obtained
    another position thereby mitigating the potential backpay damages, etc.
    Dr. Bendick’s model, discussed above, does not provide a formulaic approach for
    determining class-wide damages or provide a universal system of damages. Instead, Dr. Bendick
    provides a formula to be used to calculate each individual class member’s damages and to sum
    these findings for class damages. Plaintiffs have offered no way to avoid the need to evaluate
    individual defenses for the failure to hire a candidate or calculate individual damages; nor can
    they.
    Although the D.C. Circuit has held that the necessity to determine individual
    damages awards does not itself preclude certification under Rule 23(b)(3), this case involves
    more than just the individual determination of damages. See McCarthy v. Kleindienst, 
    741 F.2d 1406
    , 1415 (D.C. Cir. 1984); 
    Coleman, 306 F.R.D. at 85
    . After determining whether Policy
    7.2.3 disparately impacted African-American candidates and evaluating WMATA’s business
    justification for the use of Policy 7.2.3, the trier of fact must also determine, for each individual
    class member, whether that class member was not hired or fired due to the Policy 7.2.3, or for
    some other reason. WMATA has provided some facts to demonstrate that class representatives
    may have lied on their applications, which could provide a legitimate, non-discriminatory reason
    for failing to hire the individual. Therefore, it is not the individual calculation of damages that
    destroys predominance, but the individual determinations of why a class member was not hired
    by WMATA or a contractor that causes the Court to deny certification under (b)(3). Having
    already found that a class is a superior method to resolve the issue of liability under (b)(2), the
    Court will go no further.
    44
    While Plaintiffs fail to meet the predominance requirement of (b)(3) and,
    therefore, will not be certified as a class for monetary damages, the question of liability can be
    efficiently litigated on a class-wide basis under (b)(2).
    There are many ways of dealing with possible individual damages
    issues, if necessary, such as “(1) bifurcating liability and damage
    trials with the same or different juries; (2) appointing a magistrate
    judge or special master to preside over individual damages
    proceedings; (3) decertifying the class after the liability trial and
    providing notice to class members concerning how they may
    proceed to prove damages; (4) creating subclasses; or (5) altering or
    amending the class.”
    
    Johnson, 248 F.R.D. at 57
    (quoting Carnegie v. Household Int’l, Inc., 
    376 F.3d 656
    , 661 (7th
    Cir. 2004)).
    Rule 23(c)(4) gives the Court discretion to certify a class as to particular issues
    and resolve others on an individual basis, “so long [as] the proposed class satisfies the
    requirements of Rule 23(a) and (b) with respect to liability.” 
    Houser, 28 F. Supp. 3d at 253-54
    .
    As discussed above, the proposed classes satisfy the requirements of 23(a) and (b) as to liability
    and the availability of injunctive or other declaratory relief.
    4. Fed. R. Civ. P. 23(g)
    The Court finds Plaintiffs’ counsel have demonstrated experience in handling
    class action claims, knowledge of the law at issue in this case, and diligence in pursuing the class
    claims to this point. The Court found above that Plaintiffs’ counsel will fairly and adequately
    represent the interests of the class and, therefore, the Court appoints Arnold & Porter LLP, the
    NAACP Legal Defense & Education Fund, Inc., and the Washington Lawyers’ Committee for
    Civil Rights as class counsel under Rule 23(g).
    45
    C. Leave to File Second Amended Complaint
    Due to the Court’s decision to redefine and certify classes based on the
    Appendices (and, therefore, the type of position applied for), rather than based on whether the
    class member applied to WMATA, MetroAccess, or a badge contractor, Plaintiffs’ Motion for
    Leave to File a Second Amended Complaint is moot. The Court will deny the motion without
    prejudice and permit Plaintiffs to file a revised amended complaint, if they so choose, based on
    the classes certified by the Court.
    IV. CONCLUSION
    For the foregoing reasons, Plaintiffs’ Motion for Leave to File a Second Amended
    Complaint will be denied without prejudice as moot; WMATA’s Motion to Exclude Dr. Farber
    will be granted in part and denied in part; WMATA’s Motion to Exclude Dr. Bendick will be
    granted; Plaintiffs’ Motions to Exclude Dr. Stixrud’s Initial Report and Declaration will be
    granted in part and denied in part; and WMATA’s Motion to Exclude Dr. Siskin will be denied.
    Plaintiffs’ Motion for Class Certification will be granted in part and denied in
    part. The Court will not certify a single, combined class at this time because the class
    representatives do not appear to include individuals covered by each Appendix in Policy 7.2.3.
    The Court will, however, certify the following three class specific to each Appendix with an
    existing class representative:
    Appendix A Class: All African-American persons who, since
    February 23, 2012, have been denied employment with WMATA,
    or terminated or otherwise permanently separated from their
    positions, suspended with or without pay, and/or denied
    employment with any third-party contractor or subcontractor as a
    result of Appendix A.
    Appendix C Class: All African-American persons who, since
    February 23, 2012, have been denied employment with WMATA,
    or terminated or otherwise permanently separated from their
    positions, suspended with or without pay, and/or denied
    46
    employment with any third-party contractor or subcontractor as a
    result of Appendix C.
    Appendix F Class/MetroAccess Class: All African-American
    persons who, since January 1, 2013, have been denied employment
    with WMATA, or terminated or otherwise permanently separated
    from their positions, suspended with or without pay, and/or denied
    employment with any third-party contractor or subcontractor as a
    result of Appendix F.
    A memorializing Order accompanies this Opinion.
    Date: March 31, 2017                                            /s/
    ROSEMARY M. COLLYER
    United States District Judge
    47
    

Document Info

Docket Number: Civil Action No. 2014-1289

Citation Numbers: 249 F. Supp. 3d 394

Judges: Judge Rosemary M. Collyer

Filed Date: 4/18/2017

Precedential Status: Precedential

Modified Date: 1/13/2023

Authorities (38)

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Lynne A. Carnegie, on Behalf of Herself and All Others ... , 376 F.3d 656 ( 2004 )

william-daubert-joyce-daubert-individually-and-as-guardians-ad-litem-for , 43 F.3d 1311 ( 1995 )

United States v. Jorge Alberto Alatorre , 222 F.3d 1098 ( 2000 )

79-fair-emplpraccas-bna-203-75-empl-prac-dec-p-45770-charles-o , 167 F.3d 1155 ( 1999 )

in-re-hanford-nuclear-reservation-litigation-jeanne-jaros-on-their-own , 292 F.3d 1124 ( 2002 )

United States v. Jennifer Juliet Gatling , 96 F.3d 1511 ( 1996 )

Charles E. Wagner, for Himself and Others Similarly ... , 836 F.2d 578 ( 1987 )

Meister, Brenda G. v. Medical Engineering , 267 F.3d 1123 ( 2001 )

Anderson, Vicente J. v. Zubieta, Alberto , 180 F.3d 329 ( 1999 )

Teresa Ambrosini v. Jorge Labarraque and the Upjohn Company , 101 F.3d 129 ( 1996 )

Michael McCarthy Arthur Waskow v. Richard G. Kleindienst , 741 F.2d 1406 ( 1984 )

Myrna O'Dell Firestone v. Leonard K. Firestone , 76 F.3d 1205 ( 1996 )

Meijer, Inc. v. Biovail Corp. , 533 F.3d 857 ( 2008 )

Eduardo Burkhart v. Washington Metropolitan Area Transit ... , 112 F.3d 1207 ( 1997 )

Thomas, Walter J. v. Albright, Madeleine , 139 F.3d 227 ( 1998 )

Douglas v. Donovan , 559 F.3d 549 ( 2009 )

Walter Woodburn Eubanks v. James H. Billington, Tommy Shaw ... , 110 F.3d 87 ( 1997 )

Beebe v. Washington Metropolitan Area Transit Authority , 129 F.3d 1283 ( 1997 )

Twelve John Does v. District of Columbia, Appellants/cross-... , 117 F.3d 571 ( 1997 )

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