UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CHARLES TAYLOR, et al.,

)

)

PLAINTIFFS,

)

)

v.

)

)

DISTRICT OF COLUMBIA WATER

)

AND SEWER AUTHORITY

)

)

DEFENDANT

)

__________________________________________)

Case No.: 1:01CV00561 Judge: Henry H. Kennedy

PLAINTIFFS’ COMBINED MOTION FOR A TEMPORARY RESTRAINING ORDER AND A PRELIMINARY INJUNCTION

The Plaintiffs, Charles Taylor et al., by and through their attorneys, hereby move this

Court, pursuant to Rule 65 of the Federal Rules of Civil Procedure:

1. To issue a temporary restraining order:

a. restraining the Defendant from requiring the name Plaintiff, Mr. Charles

Taylor, pursuant to a letter from the Defendant’s Director of Human

Resources dated March 25, 2004, to submit to a medical and psychological

examination by the Defendant’s doctors (or by doctors of the Defendant’s

choosing) and to consent to release his private medical information to the

Defendant, or be placed on administrative leave without pay; and

b. restraining the Defendant from disposing of, erasing, or otherwise altering

any written report, or any recorded or other evidence relating to the

incident that occurred between Mr. Taylor and Mr. James Shabelski on

March 25, 2004.

2. To issue a preliminary injunction: a. restraining the Defendant from requiring the name Plaintiff, Mr. Charles Taylor, pursuant to a letter from the Defendant’s Director of Human Resources dated March 25, 2004, to submit to a medical and psychological examination by the Defendant’s doctors (or by doctors of the Defendant’s choosing) and to consent to release his private medical information to the Defendant, or be placed on administrative leave without pay; b. restraining the Defendant from disposing of, erasing, or otherwise altering any written report, or any recorded or other evidence relating to the incident that occurred between Mr. Taylor and Mr. James Shabelski on March 25, 2004; and c. restraining the Defendant from continuing to retaliate against and to harass Mr. Taylor pending the final hearing and determination of this action.
The grounds for this motion, as are more fully and completely set forth in the attached Memorandum of Points and Authorities, and the attached declarations of Mr. Charles Taylor, Ms. Barbara Milton, and Mr. Abdus-Sattar Hussain Mulla, are that:
1. The name Plaintiff, Mr. Charles Taylor, was physically assaulted on the morning of March 25, 2004, while he was working at the Defendant’s Blue Plains location, by one of the Defendant’s management employees, Mr. James Shabelski.
2. Mr. Taylor informed the Defendant about the assault, and additionally called the police.
3. As a result, the Defendant placed Mr. Taylor on administrative leave with pay.
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4. The Defendant additionally ordered Mr. Taylor, by letter, to appear at a specified location on Friday, April 2, 2004 at 12:30 p.m. to undergo an examination by the Defendant’s physician and to undergo a psychological examination by a doctor of the Defendant’s choosing.
5. Unless enjoined, the Defendant will place Mr. Taylor on administrative leave without pay if he fails to report for examination at the time and place specified by the Defendant.
6. There is no factual basis for the Defendant to order Mr. Taylor to undergo either a physical or a psychological examination, and there is no factual basis for the Defendant’s determination that Mr. Taylor is a threat or potential theat to Mr. Shabelski or to any other WASA employee.
7. Under the circumstances, the Defendant has no authority to order Mr. Taylor to undergo either a physical or a psychological examination, or to place him on administrative leave without pay if he fails to do so, and the Defendant’s order is invalid and constitutes illegal retaliation against Mr. Taylor and is an unwarranted and illegal violation of Mr. Taylor’s privacy and other rights.
8. Unless the Defendant is immediately restrained and enjoined, the operation and enforcement of the Defendant’s order by the Defendant will cause Mr. Taylor immediate and irreparable injury.
9. Unless the operation and enforcement of the Defendant’s order is enjoined pending the final disposition of this action, the injury to Mr. Taylor will be irreparable, even if final judgment is entered for the Plaintiffs.
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10. No injury will be sustained by the Defendant, by any WASA employee, or by the public at large if the temporary restraining order and preliminary injunction issue.
This motion is based on these Motion papers and the accompanying Memorandum of Points and Authorities, the attached declaration of Plaintiffs’ counsel pursuant to Local Rule 65.1, and the attached statements of Mr. Charles Taylor, Ms. Barbara Milton, and Mr. AbdusSattar Hussain Mulla, as well as the complaint and all other papers and records on file in this action, together with any argument or evidence that may be presented at the hearing on this motion. Dated: April 1, 2004
Respectfully submitted,
/s Alexander G. Hillery, II Law Offices of David A. Branch, PC 1825 Connecticut Avenue, NW, Suite 690 Washington, DC 20017 202-785-2805 (phone) 202-785-0289 (facsimile) Counsel for the Plaintiffs
4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CHARLES TAYLOR, et al.,

)

)

PLAINTIFFS,

)

)

v.

)

)

DISTRICT OF COLUMBIA WATER

)

AND SEWER AUTHORITY

)

)

DEFENDANT

)

__________________________________________)

Case No.: 1:01CV00561 Judge: Henry H. Kennedy

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ COMBINED MOTION FOR A TEMPORARY RESTRAINING ORDER
AND FOR A PRELIMINARY INJUNCTION

The Plaintiffs, Charles Taylor et al., by and through their attorneys, hereby submit their Memorandum of Points and Authorities in support of the Plaintiffs’ motion, pursuant to Rule 65 of the Federal Rules of Civil Procedure: (1) To issue a temporary restraining order: (a) restraining the Defendant from requiring the name Plaintiff, Mr. Charles Taylor, pursuant to a letter from the Defendant’s Director of Human Resources dated March 25, 2004, to submit to a medical and psychological examination by the Defendant’s doctors (or by doctors of the Defendant’s choosing) and to consent to release his private medical information to the Defendant, or be placed on administrative leave without pay; and (b) restraining the Defendant from disposing of, erasing, or otherwise altering any written report, or any recorded or other evidence relating to the incident that occurred between Mr. Taylor and Mr. James Shabelski on March 25, 2004; and (2) To issue a preliminary injunction: (a) restraining the Defendant from requiring the name Plaintiff, Mr. Charles Taylor, pursuant to a letter from the Defendant’s Director of Human

Resources dated March 25, 2004, to submit to a medical and psychological examination by the Defendant’s doctors (or by doctors of the Defendant’s choosing) and to consent to release his private medical information to the Defendant, or be placed on administrative leave without pay; (b) restraining the Defendant from disposing of, erasing, or otherwise altering any written report, or any recorded or other evidence relating to the incident that occurred between Mr. Taylor and Mr. James Shabelski on March 25, 2004; and ©) restraining the Defendant from continuing to retaliate against and to harass Mr. Taylor pending the final hearing and determination of this action.
I. Relevant Factual Background
Mr. Charles Taylor is the name Plaintiff in this class action. Mr. Taylor alleges that he and the members of the class have been and continue to be subjected to a pattern and practice of discrimination by the Defendant, the District of Columbia Water and Sewer Authority (“WASA”), including disparate treatment, and personnel policies and practices which have a disparate impact on African Americans. Mr. Taylor and the class members seek relief pursuant to Section 1981 of the Civil Rights Act of 1871, as amended by the Civil Rights Act of 1991, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et seq. (Title VII), including but not limited to declaratory, injunctive and other equitable relief, and compensatory damages, litigation expenses and reasonable attorneys fees.
2

Mr. Taylor is employed by the Defendant as a Civil Engineering Technician at the Defendant’s Blue Plains location. He has worked for the Defendant for almost eighteen years.1
On or about March 25, 2004, at around 8:00 a.m. in the morning, Mr. Taylor took the elevator from the second floor to the fifth floor, along with a co-worker, Mr. Abdus-Sartar Hussain Mulla (“Mr. Mulla”), to get a cup of coffee. When Mr. Taylor exited the elevator with Mr. Mulla, he crossed paths with Mr. James Shabelski, who is one of the Defendant’s management employees (upon information and belief, Mr. Shabelski is a Supervisor in the Defendant’s Water and Sewer Design Department, and he is the supervisor of Mr. Taylor’s immediate supervisor, Mr. Londra Watson).2
Mr. Taylor entered the fifth floor workspace after Mr. Shabelski, who opened the door to the workspace with his pass, and Mr. Mulla came in right behind Mr. Taylor. After Mr. Taylor entered the door, Mr. Shabelski turned around to face him, and blocked his path. Mr. Taylor tried to go around him, but Mr. Shabelski moved in the same direction, and blocked him. Mr. Taylor then attempted to go around Mr. Shabelski in the other direction, and Mr. Shabelski moved and blocked Mr. Taylor again. Mr. Taylor tried to get by Mr. Shabelski a third time, and again Mr. Shabelski blocked his path.3
As Mr. Shabelski was blocking Mr. Taylor, Mr. Shabelski said to Mr. Taylor, “What are you doing up on this floor?” Mr. Taylor responded that he had come to get some coffee. Then
1Exhibit A (Declaration of Mr. Charles Taylor) (hereinafter “Taylor Declaration”) at 1, ¶2.
2Id. at 1-2, ¶¶3-4. 3Id. at ¶¶4-5.
3

Mr. Shabelski told him, “We don’t want you on this floor!,” and he pushed Mr. Taylor, with closed fists and with his thumbs extended, in the area of Mr. Taylor’s throat.4
Mr. Taylor then told Mr. Shabelski, “I can come up to this floor to get some coffee, Mr. Shabelski!.” Mr. Shabelski then pushed Mr. Taylor a second time, and then a third time. After Mr. Shabelski had pushed Mr. Taylor at least three times, Mr. Taylor loudly yelled, “Mr. Shabelski, stop pushing me!”5
After Mr. Taylor yelled at Mr. Shabelski,, Mr. Shabelski quickly walked over to another supervisor’s office and, when that supervisor wasn’t there, went to the cubicle of Mr. Taylor’s co-workers, Mr. Jermaine Quattlebaum. Mr. Shabelski told Mr. Quattlebaum, that Mr. Taylor had pushed him, and he asked Mr. Quattlebaum to “come and get Charlie!”6
Mr. Quattlebaum immediately left his cubicle, came up to Mr. Taylor, grabbed him by his arm, and pulled him out into the hallway, away from Mr. Shabelski. Then, Mr. Quattlebaum, who is a union shop stewart, asked Mr. Taylor what happened. When Mr. Taylor told Mr. Quattlebaum that Mr. Shabelski had pushed him, Mr. Quattlebaum told Mr. Taylor to go write a grievance against Mr. Shabelski, because Mr. Shabelski was wrong to push him.7
Mr. Taylor was extremely upset—he was so upset he had started to cry—and this was not the first time that Mr. Shabelski had put his hands on Mr. Taylor. In fact, Mr. Taylor had
4Id. at 2, ¶6. 5Id. at ¶7. 6Id. at ¶8. 7Id. at 3, ¶9.
4

complained to WASA’s management about Mr. Shabelski’s behavior before, but the Defendant had never done anything about it.8
Mr. Quartlebaum escorted Mr. Taylor downstairs to the second floor. After Mr. Taylor got downstairs, he went to his computer to begin writing up his grievance against Mr. Shabelski.9 Mr. Taylor had every right to go to the fifth floor, and Mr. Shabelski had no authority to try to prevent him from going to that floor. Mr. Taylor did not do or say anything to Mr. Shabelski to provoke Mr. Shabelski before he started to block Mr. Taylor’s path and push him.10
Mr. Mulla, the co-worker who entered the fifth floor workspace directly after Mr. Taylor, witnessed what happened between Mr. Taylor and Mr. Shabelski.11 Additionally, upon information and belief, there was a security camera pointing at the area where Mr. Shabelski assaulted Mr. Taylor, and that camera should have recorded everything that happened.12
As Mr. Taylor was typing up his grievance, Mr. Chris Hawthorne, one of the union presidents, arrived. After Mr. Taylor told him what happened, Mr. Hawthorne told Mr. Taylor that he should call the police, which Mr. Taylor did. Later, Ms. Vaughan, the Defendant’s head of security, approached Mr. Taylor. He told her what happened, and he additionally told her that
8Id. See Exhibit F (letter from Mr. Taylor to WASA management, dated June 11, 2003, complaining about Mr. Shabelski’s behavior towards Mr. Taylor).
9Exhibit A (Taylor Declaration) at 3, ¶10. See Exhibit E (grievance statement written by Mr. Taylor on March 25, 2004).
10Exhibit A (Taylor Declaration) at 3, ¶11. 11Exhibit C (statement of Mr. Abdus-Sattar Hussain Mulla, dated March 26, 2004). 12Exhibit A (Taylor Declaration) at 4, ¶13.
5

he had called the police. Ms. Vaughan told Mr. Taylor to go wait for the police at the front gate.13
Mr. Taylor went to the front gate and waited for the police, then he came back into the building. By the time he returned to the front gate, the police were there. He went inside the building with the police, and told them what happened. He also told them that he had a lawsuit pending against WASA, and that this was not the first time that Mr. Shabelski had put his hands on him. The policewoman told Mr. Taylor that Mr. Shabelski should be arrested. At that point, Ms. Vaughan, the head of security, told the police that WASA’s HR Department was handling the situation. The police went to find and speak with Mr. Shabelski, and Mr. Taylor went back to his workstation.14
Sometime around 2:00 p.m. or 2:30 p.m., Mr. Gus Bass (WASA management) had Mr. Taylor’s immediate supervisor, Mr. Watson, escort Mr. Taylor to the office of WASA’s General Counsel. When Mr. Taylor arrived at the General Counsel’s Office, he met with Mr. Watson, Barbara Grier (WASA’s Director of Human Resources) and Ken Barnhart, Esq., WASA’s General Counsel. Mr. Taylor was not accompanied by his union representatives or his lawyer.15
Mr. Watson, Ms. Grier, and Mr. Barnhart asked Mr. Taylor what happened, and Mr. Taylor told them what Mr. Shabelski had done. He also told them that Mr. Shabelski had yelled in his face and pushed him before (and that Mr. Shabelski had made racial remarks in his
13Id. at 4, ¶¶14-15. 14Id. at ¶¶15-16. 15Id. at 4-5, ¶17.
6

presence, even after he filed his lawsuit claiming racial discrimination), but WASA had never done anything about it. He then told them that he didn’t know what he would do if Mr. Shabelski assaulted him again. Then, Mr. Taylor left the meeting16
Later that day, Mr. Taylor was again approached by Ms. Vaughan. Ms. Vaughan got Mr. Taylor and escorted him to Barbara Grier’s office. Ms. Grier gave Mr. Taylor a letter.17 Mr. Taylor asked her he was being suspended. Ms. Grier told him that he was being placed on administrative leave with pay. Ms. Grier then instructed Ms. Vaughan to take Mr. Taylor’s badge. Ms. Vaughan walked Mr. Taylor downstairs to his my office so he could get his things, and then she took his badge, and one of the security guards escorted to his car. He then left the premises.18
The letter Ms. Grier gave to Mr. Taylor advised him that, “effective immediately,” he was not to report to work “until further notice.” The letter stated that WASA “has reasonable suspicion that you have made threats against an Authority employee” because “at the conclusion of an interview investigating an incident between you and other (sic.) employee, you indicated if there were another incident that you could not be certain you could control your actions and that there was no telling what you would do.” The letter continued, “[a]s a result, you will be placed on administrative leave with pay until you are directed to return to work.”19
16Id. at 5, ¶18. 17Exhibit D (letter from Barbara Grier to Mr. Charles Taylor dated March 25, 2004). 18Exhibit A (Taylor Declaration) at 5, ¶19. 19Exhibit D (letter from Barbara Grier to Mr. Charles Taylor dated March 25, 2004) at 1, ¶1.
7

The letter ordered Mr. Taylor “to undergo a fitness for duty evaluation at Providence Hospital Wellness Institute, 1150 Varnum Street, N.E., Washington, DC 20017 ... at 12:30 p.m. on Friday, April 2nd ...”. The letter stated that Mr. Taylor would “undergo a medical examination conducted by the Authority’s Medical Director, Dr. Michelle Smith-Jeffries and a psychological examination conducted by Dr. Richard Filson.” The letter further stated that Mr. Taylor “must cooperate in these examinations and must consent to release any medical information that may be necessary to complete the examination process.”20
The letter concluded: “After the examination, you will continue to be on administrative leave until the evaluation has been submitted to the Authority and a decision has been made as to the appropriateness of your return to work. Until such time, you are to remain available for a follow-up evaluation, if necessary.”21
Mr. Taylor never threatened Mr. Shabelski or anyone else at WASA. He has worked at WASA for almost eighteen years, and he has never threatened or harmed anyone there.22
Mr. Taylor does not have any physical or mental condition. He is willing and able to do my job. He has repeatedly complained to WASA about the way Mr. Shabelski and others in WASA’s management treat him, and WASA has never done anything about it. To the best of his knowledge, WASA still has not done anything about Mr. Shabelski, even the events of
20Id. at ¶2. 21Id. at ¶3. 22Exhibit A (Taylor Declaration) at 6, ¶22.
8

March 25th.23 Mr. Taylor’s union intends to file a grievance against WASA and Mr. Shabelski for Mr. Shabelski’s assault on Mr. Taylor, and Mr. Taylor intends assault charges against him.24
Upon the advice of counsel, Mr. Taylor will not appear for examination at the Providence Hospital Wellness Institute on April 2nd at 12:30 p.m., as directed by the Defendant’s March 25th letter, and he will not consent to giving WASA access to his private medical records.25 WASA, through its attorneys, have stated that if Mr. Taylor does not appear for examination on March 25th as directed, he will be placed on administrative leave without pay and be subject to disciplinary action.26
Mr. Taylor lives with his son, and Mr. Taylor’s income is the primary income supporting him and his family. Mr. Taylor and his family will be seriously and irreparably harmed if he is placed on administrative leave without pay because they will not have enough income to pay their bills on time (or even to pay their bills at all) and to buy their necessities.27
23Id. at ¶¶23-24. 24Id. at 7, ¶26. 25Id. at 6, ¶21. 26Exhibit J (letter from Mary Pivec, Esq. to Alexander Hillery, dated March 31, 2004) at 2, ¶4. 27Exhibit A (Taylor Declaration) at 6-7, ¶25.
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II. Argument This Court Should Grant the Plaintiffs’ Motion for a Temporary Restraining Order and for a Preliminary Injunction Because the Plaintiffs’ Have Demonstrated a Likelihood of Success on the Merits, That Mr. Taylor Will Suffer Irreparable Harm if the Injunctive Relief is Not Granted, That No Other Party Will Suffer Substantial Harm if the Injunctive Relief is Granted, and that the Public Interest Favors Granting the Relief Sought Herein The Plaintiffs seek a temporary restraining order (“TRO”) and a preliminary
injunction against the Defendant to restrain the Defendant from requiring the name Plaintiff in this class action, Mr. Charles Taylor, pursuant to a letter from the Defendant’s Director of Human Resources dated March 25, 2004, to submit to a medical and psychological examination by the Defendant’s doctors (or by doctors of the Defendant’s choosing) and to consent to release his private medical information to the Defendant, or be placed on administrative leave without pay, to restrain the Defendant from disposing of, erasing, or otherwise altering any written report, or any recorded or other evidence relating to the incident that occurred between Mr. Taylor and Mr. James Shabelski on March 25, 2004. and to restrain the Plaintiff from continuing to retaliate against and to harass Mr. Taylor pending the final hearing and determination of this action.
A temporary restraining order (“TRO”) serves “to preserve the status quo for a limited period of time until the Court has the opportunity to pass on the merits of the demand for a preliminary injunction,”28 and “to prevent imminent harm [to the movant] until a hearing on the request for a preliminary injunction may be held.”29
28Barrow v. Graham, 124 F.Supp.2d 714, 715-16, 2000 U.S. Dist. LEXIS 19007, **5-6 (D.D.C. 2000), citing Warner Bros. Inc. v. Dae Rim Trading, Inc., 877 F.2d 1120, 1125 (2d Cir. 1989); Fernandez-Roque v. Smith, 671 F.2d 426, 429 (11th Cir. 1982).
29Id., 124 F.Supp.2d at 716, 2000 U.S. Dist. LEXIS 19007 at **5 (citation omitted). 10

The “traditional four-part test for injunctive relief”applies to both an application for a TRO and to an application for a preliminary injunction,30 and it requires that the movant show: “(1) a substantial likelihood of success on the merits; (2) that irreparable injury will result in the absence of the requested relief; (3) other interested parties will not suffer substantial harm if the injunction is granted, and ; (4) that the public interest favors entry of a preliminary injunction.”31
The court must balance these four factors, and “[a] court may balance weakness in one or more of the four factors against a particularly strong showing in one of the other factors,” and therefore “injunctive relief ‘may be justified ... where there is a particularly strong likelihood of success on the merits even if there is a relatively slight showing of irreparable harm.’”32
At the TRO stage (as opposed to the preliminary injunction stage), even in the absence of such a “traditional” showing, a TRO’s short duration, along with a showing of imminent harm and an absence of a contrary showing from a respondent may together justify the grant of a TRO to preserve the status quo.33
Here, the Plaintiffs have made a sufficient showing to meet the legal standard for both a TRO and a preliminary injunction, , and this Court should grant the Plaintiffs’ motion.
30Id., 124 F.Supp.2d at 716, 2000 U.S. Dist. LEXIS 19007 at **5-6. 31Role Models America, Inc. v. White, 193 F.Supp.2d 76, 79-80, 2002 U.S. Dist. LEXIS 3081, **10. 32Id., 193 F.Supp.2d at 80, 2002 U.S. Dist. LEXIS 3081 at **11, quoting Cityfed Fin. Corp. v. Office of Thrift Supervision, 313 U.S. App. D.C. 178, 58 F.3d 738, 747 (other citation omitted). 33Barrow v. Graham, 124 F.Supp.2d at 716, 2000 U.S. Dist. LEXIS 19007 at **5-6.
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1. Likelihood of success on the merits Here, the Defendant has ordered Mr. Taylor to either submit to physical and psychological examinations and consent to granting WASA access to his private medical information, or be placed on indefinite administrative leave without pay.34 Mr. Taylor claims that the Defendant has no authority, under the rubric of a fitness-for-duty assessment or otherwise, to order him to submit to such examinations or to give WASA access to his medical information, and that WASA’s order amounts to illegal retaliation and an unlawful invasion of his privacy. The Defendant contends that Mr. Taylor must submit to these examinations, and allow WASA access to his medical records, because, according to WASA, “the Authority has reasonable suspicion that you have made threats against an Authority employee. Specifically, at the conclusion of an interview investigating an incident between you and other (sic.) employee, you indicated if there were another incident that you could not be certain you could control your actions and that there was not telling what you would do.”35 The Defendant’s actions and reasoning have a surreal, up-is-down, down-is-up, throughthe-looking-glass quality. Mr. Taylor was assaulted by the Defendant’s supervisory employee, Mr. Shabelski. Mr. Taylor did not assault anyone. In fact, Mr. Taylor showed commendable
34Presumably, if Mr. Taylor does not submit to the requirements outlined in its March 25, 2004 letter (Exhibit D), the Defendant will put him on administrative leave without pay indefinitely, until he does submit to the Defendant’s orders. See Exhibit J (letter from Mary Pivec, Esq. to Alexander Hillery, dated March 31, 2004, stating that “[i]f Mr. Taylor fails to appear ... he will be placed on leave without pay and will be subject to disciplinary action.”) at 2, ¶4.
35Exhibit D at ¶1. 12

restraint when he did not retaliate against Mr. Shabelski after Mr. Shabelski pushed him three or more times without provocation.
Yet, the Defendant, in its wisdom, decided to send Mr. Taylor home on administrative leave, and did nothing at all to Mr. Shabelski—the assaulter! And even though it was Mr. Taylor who demonstrated remarkable self-control in the face of rather extreme (and indeed unlawful) provocation, the Defendant deemed him to be “threatening” to another employee, while it did nothing to Mr. Shabelski, who assaulted another employee without provocation and therefore proved that he is actually threatening to another employee (namely, to Mr. Taylor).
It is crystal clear that the Defendant has no reason to believe that Mr. Taylor is a threat to Mr. Shabelski or anyone else. The Defendant’s actions against Mr. Taylor are clearly retaliatory and utterly without any basis in fact. Further, the Defendant has no authority to order Mr. Taylor to submit to these intrusive, humiliating, retaliatory examinations. There is no authority for such examinations under the “fitness-for-duty” examination provisions of the contract between the union (of which Mr. Taylor is a part) and the Defendant.
Article 13, Section A (hereinafter “Article 13"), of the union contract sets forth the standards and requirements for medical examinations and inquiries involving an assessment of an employee’s “fitness for duty.” Article 13 provides that “medical inquiries and examinations” are to be requested by the Defendant: (1) when the Authority questions the ability of the employee to perform the essential functions of his/her job because of an indicated mental or physical impairment,” or “when the Authority questions whether an employee can do his/her job without posing a direct theat to himself/herself or others due to a medical condition.”36 Neither of these
36Exhibit E (excerpt from WASA union contract) at 1, ¶1 (emphasis added). 13

apply to Mr. Taylor, who does not have any physical or mental impairment or any medical condition,37 and Article 13 does not authorize the Defendant to order Mr. Taylor to undergo physical and mental testing and to consent to the Defendant’s access to his medical records.
Additionally, even if Article 13 does apply to Mr. Taylor (and the Plaintiffs’ contend that it clearly does not apply), it does not authorize the Defendant to order Mr. Taylor to be examined by the Defendant’s doctors or doctor’s of the Defendant’s choosing. Rather, it explicitly provides that “[t]he request [for a physical and mental fitness for duty inquiry and examination] shall instruct the employee to go to his/her treating physician, who shall provide medical documentation to the Authority’s Medical Director whether the employee can perform the essential functions of his/her position.” Thus, the explicit provisions of Article 13 require the Defendant to instruct an employee subject to a physical or mental fitness for duty inquiry and examination to go to the employee’s doctor, not to the Defendant’s doctor or to a doctor of the Defendant’s choosing. Therefore, even if Article 13 applies to Mr. Taylor, the Defendant has clearly and indisputably violated its terms by ordering Mr. Taylor to go to the Defendant’s doctors rather than to his own.
To the best of Mr. Taylor’s knowledge, and to the best of his union President’s knowledge, there are no other provisions of the union contract or WASA personnel policies or procedures that authorize the Defendant to order Mr. Taylor to undergo these examinations, either.38 And the Defendant did not rely on any other provisions of the union contract or WASA personnel policies or procedures in its notice to Mr. Taylor. The Defendant’s March 25th letter
37Exhibit A (Taylor Declaration) at 6, ¶23. 38Exhibit B (Declaration of Ms. Barbara Milton) at 3, ¶¶8-9.
14

clearly states that it is ordering Mr. Taylor “to undergo a fitness for duty evaluation ...”.39 Article 13 clearly governs such “fitness for duty”examinations, and it plainly does not authorize the actions that the Defendant has taken, or is preparing to take, pursuant to its March 25th letter.
Finally, Article 13 explicitly states that its procedures “shall be related to the essential functions of the employee’s position and shall not be sued to harass or treat an employee in a disparate manner.”40 That is precisely what the Defendant is attempting to do here. There is absolutely no evidence that Mr. Taylor cannot do his job, because of a mental or physical condition or for any other reason, and any inquiry by the Defendant cannot, therefore, be “related to the essential functions of [Mr. Taylor’s] position,” as Article 13 requires.
There is absolutely no factual basis or legal authority for the Defendant’s actions and threatened actions. They are clearly retaliatory and unlawful. Mr. Taylor has demonstrated a very strong likelihood of success on the merits with regards to the illegality of the Defendant’s actions. This Court should grant his motion.
2. Irreparable injury in the absence of the requested relief The second prong of the “traditional four-part test” requires that the movant demonstrate that he will suffer irreparable harm if the equitable relief is not granted. Irreparable injury is a
39Exhibit D at 1, ¶2. 40Id. at ¶1.
15

sine qua non; without a showing of irreparable injury—even a “relative slight showing”—a court will not grant injunctive relief.41
Mr. Taylor will be put on indefinite, unpaid administrative leave by the Defendant if he does not submit to the examinations ordered by the Defendant. Mr. Taylor’s income is the primary income supporting his household (he lives with his son). Without Mr. Taylor’s income, his family will not be able to pay its bills on time (or at all) and buy the necessities the family requires to sustain itself.
Mr. Taylor’s unpaid administrative leave will be indefinite unless and until he submits to the Defendant’s unlawful orders. He faces financial disaster without the income from his position with the Defendant. He and his family will be irreparably harmed, even should he and the class ultimately prevail and obtain a judgment against the Defendant in this action, if this Court does not restrain the Defendant and prevent it from carrying through with these retaliatory, unlawful acts.
Mr. Taylor has demonstrated that he will suffer irreparable harm if the relief he seeks in this motion is not granted.
3. Other interested parties will not suffer substantial harm if the injunction is granted
If Mr. Taylor’s motion for a TRO and for a preliminary injunction are granted, the Defendant will have to maintain the status quo—it will have to maintain his present status,
41Role Models America, Inc. v. White, 193 F.Supp.2d 76, 80, 2002 U.S. Dist. LEXIS 3081, **11-12, quoting Cityfed Fin. Corp. v. Office of Thrift Supervision, 313 U.S. App. D.C. 178, 58 F.3d 738, 747 (D.C. Cir. 1995) (internal quotation omitted).
16

administrative leave with pay—until this Court determines otherwise. No one will suffer any harm, let alone significant harm, if Mr. Taylor remains on paid administrative leave (Mr. Taylor has indicted that he is willing and able to return to work provided that the Defendant’s harassment and retaliation ceases).
Mr. Taylor is willing to return to work, and he is absolutely no treat to Mr. Shabelski or to any other WASA employee. He has never threatened or harmed anyone at WASA, including Mr. Shabelski after Mr. Shabelski assaulted him. If the Defendant continues to maintain that Mr. Taylor is a threat to other employees, it can continue to keep him at home, on administrative leave with pay.
Mr. Taylor has demonstrated that no other interested party will suffer significant harm if this Court grants him the injunction he seeks in this motion.
4. The public interest favors a grant of injunctive relief Mr. Taylor is the name plaintiff in this class action. This class action alleges that the Defendant has, and continues to, systematically discriminate against its African-American employees with respect to pay and promotions. The Defendant’s actions against Mr. Taylor, including but not limited to permitting its supervisory employee, Mr. Shabelski, to harass and even assault Mr. Taylor with apparent impunity, and then having the unmitigated chutzpah to put Mr. Taylor on administrative leave and to designate him as the dangerous, threatening employee, could not be more contrary to the public interest. The public interest requires the protection of men like Mr. Taylor, who are brave enough to step forward and combat discrimination when they encounter it.
17

Although preserving the status quo would require the Defendant to continue to pay Mr. Taylor while he is on administrative leave, that is the Defendant’s own doing. It is the Defendant’s unlawful, irrational, retaliatory and discriminatory actions that resulted in Mr. Taylor being placed on paid administrative leave in the first instance. The Defendant should not now be heard to claim that keeping Mr. Taylor on paid administrative leave, where it put him, is against the public interest because it has to continue to pay him.
It is clearly in the public interest for this Court to grant Mr. Taylor the injunctive relief he seeks.
III. Conclusion
Mr. Taylor has demonstrated that he is likely to succeed on the merits, that he will suffer irreparable harm if injunctive relief is not granted, that no other party will suffer significant harm if the injunctive relief is granted, and that the public interest favors enjoining the Defendant.
The Defendant here is attempting to use a provision of the union contract that clearly does not apply to Mr. Taylor to harass him and to retaliate against him, which the contract itself expressly forbids. There is no reasoning worthy of the word that can possibly support the Defendant’s position. If the Defendant’s actions are correct, then any Defendant can incite, or even instigate, an altercation with an employee, and then use the very fact of the altercation to justify subjecting the employee to humiliating, unnecessary and extreme invasions of the employee’s privacy such as those threatened by the Defendant against Mr. Taylor. It is difficult to imagine a more profound injustice than that.
18

This is clear and unmitigated harassment and retaliation. It is unlawful. This Court must not permit it. This Court should grant Mr. Taylor’s motion.

Dated: April 1, 2004

Respectfully submitted,
/s Alexander G. Hillery, II Law Offices of David A. Branch, PC 1825 Connecticut Avenue, NW, Suite 690 Washington, DC 20017 202-785-2805 Counsel for the Plaintiffs

T\Documents and Settings\David Branch\Taylor, Charles\TRO–preliminary injunction\TRO motion.wpd
19

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CHARLES TAYLOR, et al.,

)

)

PLAINTIFFS,

)

)

v.

)

)

DISTRICT OF COLUMBIA WATER

)

AND SEWER AUTHORITY

)

)

DEFENDANT

)

__________________________________________)

Case No.: 1:01CV00561 Judge: Henry H. Kennedy

CERTIFICATION PURSUANT TO LOCAL RULE 65.1(a)

Alexander Hillery, II, counsel for the Plaintiffs, makes the following certification under penalty of perjury pursuant to Local Rule 65.1(a):
1. On March 26, 2004, I faxed a letter to Mary E. Pivec, Esq., counsel for the Defendant, informing her that the Plaintiffs intended to pursue an injunction against the Defendant. (See Exhibit H, attached to Plaintiffs’ motion.)
2. On April 1, 2004, I faxed a letter to Mary E. Pivec, Esq., informing her that the Plaintiffs would file a combined motion for a temporary restraining order and a preliminary injunction against the Defendant not later than 10:00 a.m. on Friday, April 2nd.

3. On Friday, April 2nd, at approximately 2:45 a.m., I faxed a copy of the Plaintiffs’ motion and all exhibits thereto, including this declaration, to Mary E. Pivec, Esq., at 202-331-3101.
Dated: April 2, 2004 Respectfully submitted, /s Alexander G. Hillery, II Law Offices of David A. Branch, PC 1825 Connecticut Avenue, NW, Suite 690 Washington, DC 20017 202-785-2805 Counsel for the Plaintiffs
T\Documents and Settings\David Branch\Taylor, Charles\TRO–preliminary injunction\attorney declaration.wpd
2

CERTIFICATE OF SERVICE I certify that on April 2, 2004, I caused a copy of this motion and all attachments thereto to be delivered to Mary E. Pivec, Esq., counsel for the Defendant, via the Court’s electronic filing system, and that I also faxed a true copy thereof to her at 202-331-3101.
/s Alexander G. Hillery, II Law Offices of David A. Branch, PC 1825 Connecticut Avenue, NW, Suite 690 Washington, DC 20017 202-785-2805 Counsel for the Plaintiffs
1

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CIVIL DIVISION

CHARLES TAYLOR, et al.

)

)

Plaintiff

)

)

Case Number: 1:01CV00561

v.

)

Judge: Henry H. Kennedy

)

DISTRICT OF COLUMBIA WATER

)

AND SEWER AUTHORITY

)

)

Defendant

)

)

WASA'S AMENDED OPPOSITION TO PLAINTIFF TAYLOR'S MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Defendant, District of Columbia Water and Sewer Authority ("WASA"), by

counsel, and pursuant to Rules 52 and 65 of the Federal Rules of Civil Procedure,

respectfully files its opposition to Plaintiff Taylor's motion for a temporary and

permanent injunction barring WASA from directing Plaintiff Taylor to submit to a fitness

for duty examination in response to threats of violence against his second level

supervisor, James Shabelski.

FACTUAL BACKGROUND

Mr. Taylor's version of the facts is set forth in an unsigned declaration appended

to his motion for injunctive relief. Significantly, Mr. Taylor admits to facts that

substantiate WASA' s grounds for directing him to submit to a fitness for duty

examination to assess his proclivity for violence against his second-level supervisor,

James Shabelski. Mr. Taylor acknowledges that during a meeting with three WASA representatives l on the afternoon of March 25, 2004, he stated that "[he] didn't know

I Two of the three WASA representatives present at the interview are African American: Mr. Londra Watson, Mr. Taylor's immediate supervisor, and Barbara Grier, WASA's Director of Human Resources.

what [he] would do if he [Mr. Shabelski] put his hands on [him] [Mr. Taylor] again." Declaration of Charles N. Taylor in support of his Motion for Temporary Restraining Order, ~ 18.
Based on Mr. Taylor's demeanor in making this threat of potential violence against Mr. Shabelski, WASA acted within its rights as an employer to remove Mr. Shabelski from the workplace (albeit with paid leave), and to require him to submit to a fitness for duty psychiatric examination. Indeed, WASA has required other employees to submit to such examinations, including a member of the bargaining unit represented by Plaintiff Taylor's collective bargaining representative. See Affidavit of Barbara Grier, attached hereto as Exhibit B, ~ 6.
It is well established that employers who fail to address threats of violence can be held liable for negligence in the event of a future incident? The desire to avoid liability for negligence constitutes a legitimate, non-discriminatory reason for requiring a fitness for duty examination. Mr. Taylor apparently has elected to disregard this legitimate directive from WASA even though he has been warned directly and through counsel that if he failed to comply he would be placed on leave without pay and would be subject to disciplinary action.
Significantly, WASA recently learned that Mr. Taylor has a history of violent behavior. At his February 6, 2004 deposition in this case, Mr. Taylor testified that in 2002 he was charged with first, second, third, and fourth degree assault against a Prince George's County police officer while resisting service of a restraining order filed by his
2 The Supreme Court has upheld recovery under a direct negligence theory given proof that the employer failed to prevent reasonably foreseeable danger to an employee from intentional or criminal misconduct. Harrison v. Missouri Pac. R.R., 372 U.S. 248, 249 (1963). See also Brooks v. Washington Terminal Co..
593 F.2d 1285 (DC Cir.), cert. denied, 442 U.S. 910 (1979); McMillan v. National R.R. Passenger Corp.,
648 A.2d 428, *435 (D.C. 1994).
2

ex-wife. After fighting with the officer and resisting arrest, Mr. Taylor was arrested and detained over night. The magistrate judge who heard the charges against Mr. Taylor the following day ordered Mr. Taylor to remain incarcerated because he failed to demonstrate contrition for his conduct. Mr. Taylor's account of the disposition of the criminal case is somewhat muddled and it is unclear whether trial is still pending.3
In addition to the foregoing incident, Mr. Taylor testified regarding the circumstances leading to the issuance of the temporary restraining order obtained by his ex-wife. Apparently, Mr. Taylor got into a fight with his ex-wife's boyfriend over visitation rights with his grandson. Mr. Taylor retaliated against his wife for obtaining a restraining order allegedly by getting a restraining order directing her to stay away from him.4
Mr. Taylor's admissions regarding his involvement in violent behavior, coupled with his emotional reaction to the events of March 25, 2004 - including his claim that he cried when told by a union steward that he should return to his work station demonstrate sufficient evidence of instability to warrant the actions taken by WASA. In the absence of any other act of alleged retaliation on the part of WASA, there is simply no grounds for involving the Court in this matter. Further, as Mr. Taylor himself recites, he has obtained a commitment from his Union to pursue a grievance in his behalf assuring him of adequate remedies without invoking the extraordinary preliminary injunctive powers of the federal court. See Declaration of Charles N. Taylor, ~ 26.
3 The pertinent portions of Mr. Taylor's deposition testimony is appended hereto as Exh. A., pp. 15-19. 4 Exh. A, pp. 19-20.
3

II. LEGAL STANDARD AND ANALYSIS In order to succeed on a preliminary injunction, the movant must demonstrate: (1) a substantial likelihood of success on the merits; (2) that irreparable injury will result in the absence of the requested relief; (3) other interested parties will not suffer substantial harm if the injunction is granted, and; (4) that the public interest favors entry of a preliminary injunction. See Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1506 (D.C.Cir. 1995). A preliminary injunction is not granted as a matter of right. See Eli Lilly and Co. v. Premo Pharmaceutical Labs., 630 F.2d 120, 136 (3d Cir.1980). Indeed, injunctive relief is an extraordinary remedy and must be sparingly granted. See Dorfmann v. Boozer, 414 F.2d 1168 (D.C.Cir.1969). Thus, a court should not grant injunctive relief absent a clear and convincing showing by the moving party. See Yakus v. United States, 321 U.S. 414 (1944); accord Kahane v. Secretary of State, 700 F.Supp. 1162, 1165 (D.D.C.1988). If the movant fails to demonstrate any irreparable injury, however, the court will not inquire further before denying the injunction. See Role Models America, Inc. v. White, 193 F. Supp. 2d 76, 79- 80 (D.C. 2002). Herein, Plaintiff Taylor cannot satisfy any of the elements of the standard for preliminary injunctive relief, as discussed below. Moreover, Plaintiff Taylor has failed as a matter of law to demonstrate a cognizable claim of irreparable harm. A. Plaintiff Taylor Has Failed to Demonstrate A Strong Likelihood of
Success on the Merits. Plaintiff Taylor appears to be proceeding on the assumption that he is entitled to invoke the jurisdiction of this Court to prevent a fitness for duty examination on the ground that WASA's request that he submit thereto constitutes unlawful retaliation for his participation as the lead plaintiff in the instant lawsuit. Plaintiff Taylor has failed to
4

allege a single incident of alleged retaliation during the three year pendency of this lawsuit other than the events of March 25,2004. Under such circumstances it is highly unlikely that Plaintiff Taylor can satisfy the first element of his claim for preliminary relief.
To meet the fourth prong of a prima facie claim for retaliation, the plaintiff must show, "a causal connection between the protected activity and the adverse employment action taken against him. Cones v. Shalala, 199 F3d 512 (D.C. Cir. 2000); Sullivan-Obst v. Powell, 300 F. Supp. 2d 85 (D.C. 2004); Allen v. Michigan Dept. o/Corrections, 165 F.3d 405, 413 (6th Cir. 1999). A plaintiff needs to show more than "vague or generalized claims" of causation. Allen, 165 F.3d at 413. To show a causal connection, a plaintiff must produce sufficient evidence from which an inference can be drawn that employer took the adverse action because the plaintiff engaged in the protective activity. Cones, supra.; Sisay v. Greyhound Lines, Inc., 34 F. Supp. 2d 59, 65 (D.C. 1998); EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997).
Here, Mr. Taylor fails to meet the causation element based on the passage of a substantial time period between the initiation of this lawsuit and the complained of action, approximately 3 years. Sisay, 34 F. Supp. 2d at 65 (plaintiff failed to establish a causal connection where the alleged retaliation did not occur shortly after the protected activity). Moreover, the intervening event, namely the threats of potential future violence against his second-line supervisor, break the chain of causation necessary to establish a claim of retaliation because WASA had a legitimate, non-discriminatory reason for its action. Slade v. Billington, 700 F. Supp. 1134, 1151 (D.C. 1988) (legitimate, nondiscriminatory rationale for action rebutted claim of retaliation).
5

B. Plaintiff Taylor Cannot Show that He's In Danger of Suffering Irreparable Harm During the Pendency of the Action. Plaintiff Taylor alleges that he will suffer irreparable harm if the Court does not
restrain WASA from placing him on leave without pay for failing to submit to a fitness for duty examination. Plaintiff asserts that he will suffer economic injury because he will be unable to pay his bills and buy necessities. This showing is insufficient to merit preliminary injunctive relief.
The United States Supreme Court in Sampson v. Murray held even if a plaintiff "had made a satisfactory showing of loss of income and had supported the claim that her reputation would be damaged as a result of the challenged agency action, we think the showing falls far short of the type of irreparable injury which is a necessary predicate to the issuance ofa temporary injunction in this type of case." Sampson, 415, U.S. at 91-92.
In Sampson, the plaintiff, when notified of her termination from employment as a government employee, filed an action seeking an injunction to stop her dismissal. Id. at 63. The plaintiff alleged that her dismissal would deprive her of income and "cause her to suffer embarrassment of being wrongfully discharged...." Id. at 66. The plaintiffs former governmental employer, the General Service Administration (hereinafter "GSA") stated that the reason for the plaintiffs discharge was her "complete and unwillingness to follow office procedure and to accept direction from (her) supervisors." Id. at 64 (internal quotations omitted). The United States District Court for the District of Columbia granted interim injunctive relief for the Plaintiff. Id. at 67. The United States Court of Appeals for the District of Columbia affirmed the District Court's ruling. Id.
The United States Supreme Court reversed the Court of Appeals based on the reasoning that "the Government has traditionally been granted the widest latitude in the
6

dispatch of its own internal affairs...." Id. at 83 (internal citations omitted). The plaintiff s allegation in Sampson simply did not show irreparable injury sufficient to override the Government's wide latitude in dealing with its internal affairs. Id. at 83-84. More importantly, the Sampson Court stated that the keyword in determining irreparable harm is the term "irreparable." Id at 90. "Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough." Id. 5 Plaintiff s allegations in the present matter directly parallel the allegations of the plaintiff in Sampson. Plaintiff s fears concerning reputation and income do not rise to the high threshold of "irreparable" harm. Any finding to the contrary would fail to meet the clear and concise precedent set forth by the United States Supreme Court.
Moreover, it is clear that Plaintiff Taylor has access to remedies under the collective bargaining agreement between WASA and the American Federation of Government Employees ("AFGE" or the "Union") and that the Union has agreed to file a grievance in his behalf challenging the fitness for duty examination and any adverse action flowing from Mr. Taylor's refusal to submit thereto. Given the availability of these remedies and Plaintiff Taylor's failure to have exhausted them, there is no need to invoke the extraordinary preliminary injunctive powers of the federal court.
c. W ASA will Suffer More Harm from the Granting of the Injunction
than Plaintiff will Suffer from the Denial of the Injunction. By granting Plaintiff Taylor's Temporary Restraining Order, WASA will suffer greater harm than Plaintiff will suffer from the denial of this injunction. Plaintiff Taylor has threatened his second level supervisor with risk of bodily harm. By preventing
5 The United States Supreme Court did recognize that there may be instances in which circumstances surrounding an employee's discharge may warrant an injunction. However, such situations are rare and inapplicable to this marter. The present marter, in fact, directly parallels the employer's successful arguments made in Sampson.
7

WASA from requiring him to submit to a fitness for duty examination under penalty of loss of pay and potential discipline, a message that will be sent to other employees that WASA has no authority to prevent violent conduct in the workplace. As the Supreme Court observed in the Sampson case, the Courts should refrain from interfering in the exercise of the personnel authority of governmental agencies, particularly where administrative procedures exist for the vindication of employee rights. Here the collectively bargained grievance and arbitration procedure, backed by the enforcement authority of the District of Columbia Public Employee Relations Board and the courts of the District of Columbia provide ample procedural safeguards for the vindication of Plaintiff Taylor's concerns with respect to WASA's workplace violence policies and procedures.
D. The Public Interest will be Disserved by the Issuance of an Injunction. It is obviously in the public's interest to ensure that WASA maintains a workplace free of violence and intimidation, particularly at a time when the resources of the agency are strained by external challenges to its water quality programs. Mr. Taylor has no right to threaten the well-being of any co-worker, let along a supervisor, regardless of the alleged provocation.
CONCLUSION Plaintiff Taylor has failed to meet the requisite requirements for a preliminary injunction. As previously noted, Plaintiff has dual burdens of proof and persuasion. There is ample evidence that there is not a substantial likelihood that Plaintiff will prevail on the merits. Furthermore, as found by United States Supreme Court, loss of income does not rise to a level of irreparable harm actionable through an injunction. It is entirely
8

within Mr. Taylor's power to avoid such injury by complying with WASA's reasonable

directive to submit to examination by medical professionals who will assess whether he

poses an imminent threat to the well-being of any co-worker or supervisor. WASA will

clearly suffer greater harm than Plaintiff Taylor if denied the authority to follow its

workplace violence compliance procedures.

WHEREFORE, WASA respectfully requests that the Court DENY "Plaintiffs

Motion for a Temporary and Preliminary Injunction" and GRANT WASA such further

relief the Court deems appropriate.

April 6, 2004

Respectfully submitted,

/s/ Mary E. Pivec, Esq. D.C. Bar No. 445760 Julia H. Perkins, Esq. D.C. BarNo. 484163 Greenberg Traurig LLP 800 Connecticut Avenue, NW Washington, DC 20006 (202) 452-4883
Attorneys for Defendant

9

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA CIVIL DIVISION

CHARLES TAYLOR, et al.

)

)

Plaintiff

)

)

Case Number: 1:01CV00561

v.

)

Judge: Hemy H. Kennedy

)

DISTRICT OF COLUMBIA WATER

)

AND SEWER AUTHORITY

)

)

Defendant

)

)

ORDER

Upon consideration of Plaintiff Taylor's Motion for A Temporary Restraining

Order and Preliminary Injunction, Defendant's opposition, and the record herein;

The Court DENIES Plaintiffs motion.

So ordered, this __ day of _ _ _, 2004.

Judge Hemy H. Kennedy

10

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CIVIL DIVISION

CHARLES TAYLOR

)

1524 NOVA AVENUE

)

CAPITOL HEIGHTS, MD 20743

)

)

)

)

Individually and as

)

Class Representative

)

)

PLAINTIFF

)

v.

)

)

DISTICT OF COLUMBIA

)

WATER & SEWER AUTHORITY

)

5000 OVERLOOK AVENUE, S.W.

)

WASHINGTON, D.C. 20032,

)

)

DEFENDANT

)

__________________________________________)

(HHK) Civil Action No.: 01CV0561 Class Action Complaint

PLAINTIFF'S THIRD AMENDED COMPLAINT

Plaintiff Charles Taylor, individually, and as Class Representative, by and

through his attorneys, sues Defendant District of Columbia Water and Sewer Authority

( WASA ) and for his Complaint states as follows:

1. This is a class action brought by Plaintiff Charles Taylor on behalf of himself and

other similarly situated individuals against D.C. WASA. Plaintiff Taylor and Class

members were subjected to a pattern and practice of discrimination, including disparate

treatment, and personnel policies and practices which have a disparate impact on African

Americans. Plaintiff Taylor and Class members seek relief pursuant to Section 1981 of

the Civil Rights Act of 1871, as amended by the Civil Rights Act of 1991, 42 U.S.C.

Section 1981 ("Section 1981"), and Title VII of the Civil Rights Act of 1964, 42 U.S.C.

1

Section 2000e et seq. (Title VII), including but not limited to declaratory, injunctive and other equitable relief, and compensatory damages, litigation expenses and reasonable attorneys fees, based on Defendant's continuing deprivation of rights accorded to the named Plaintiff and members of a class of African American employees. 2. As evidence of Defendant's pattern and practice of race discrimination, Plaintiff and Class members allege the following specific examples of disparate treatment: 3. In October 1996, WASA began to operate as an independent authority of the District of Columbia government. Beginning in 1996, WASA ceased to operate under and comply with District of Columbia personnel regulations, and no longer provided civil service protection for its employees. Since 1996, WASA has adopted a system where employees are hired as "at-will" employees or has hired contractors which may be terminated at-will. During this period, WASA has hired several former white employees of the Washington Suburban Sanitation Commission ("WSSC") and other agencies and passed over qualified and experienced African Americans employees at D.C. WASA, based on licenses and certifications uniquely available to WSSC employees.
a. Discrimination in hiring and promotions. WASA has not adopted uniform personnel policies, and the personnel policies being utilized are not applied uniformly or fairly. WASA's written and unwritten policies and practices regarding hiring and promotions allow management nominations which amount to word of mouth recommendations and other closed procedures. Candidates are handpicked in advance and supervisors who make hiring decisions manipulate scores to ensure that their favorites are chosen. Further, African Americans are hired at the lowest level of the career ladder and are required to serve as long as five years for career ladder promotions
2

while white employees are hired at higher levels of the career ladder and regularly receive promotions in less than five years. As a result of this kind of discrimination, African Americans are denied the opportunity to advance to the same level and at the same rate as equally qualified Caucasian employees.
b. Glass Ceiling. At WASA, African American employees experience a "glass ceiling" or barrier to equal opportunity advancement. Few African-Americans advance to senior levels in the Agency, especially when compared to the significant representation of African Americans among salaried employees. Although African Americans make up approximately 75 percent of the employees in the Agency, they are under-represented at higher pay grades. 4. This discrimination represents an Agency-wide pattern and practice, rather than a series of isolated incidents. Defendant's written and unwritten policies and practices regarding hiring, compensation and promotion subject the named Plaintiff and the Class to ongoing disparate treatment, and have a disparate impact on African American employees. WASA's actions constitute a continuing violation of the rights of the named Plaintiff and the Class, and have been ongoing since October 1996.
Jurisdiction and Venue 5. This action arises under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et seq. (Title VII). Jurisdiction is founded on 42 U.S.C. Section 1981, and 42 U.S.C. Section 2000e, 28 U.S.C. Sections 1331 and 1343(3) and (4). The Court has jurisdiction to grant declaratory and further relief pursuant to 28 U.S.C. Sections 2201 and 2202.
3

6. Venue is proper in the district court pursuant to 28 U.S.C. Section 1391(b) and 1391(c) in that all or some of the events or omissions giving rise to Taylor's claims occurred in the District of Columbia, and defendant may be found in this judicial district.
Parties 7. Charles Taylor is a citizen of the United States and a resident of the State of Maryland, and a representative of Class members who are African American employees at WASA. 8. Defendant D.C. WASA is an independent authority of the Defendant District of Columbia government, responsible for overseeing water and sewer operations for the District of Columbia. WASA employs approximately 1300 employees, and approximately 900 or 75% of those employees are African American. Plaintiff and the Class members complaint concerns the actions of senior managers at WASA.
Individual Factual Allegations 9. Plaintiff Taylor is an African American male with 13 years of employment at WASA and its predecessor. Taylor is employed with Defendant WASA in Washington, D.C., as a civil engineering technician, DS-8, in WASA's Office of Engineering Services. Taylor's position progresses from a DS-2 to DS-11. Progression to each level is based on the employee performing at the next level and a recommendation from the individual's supervisor that the employee should be promoted. 10. Throughout his tenure, Taylor performed his job in an exemplary manner and performed many duties performed by a civil engineer. Taylor applied for several promotions during his tenure. In 2000, Taylor was supervised by Londra Watson, an African American male. In June 2000, Watson wrote a letter of recommendation
4

requesting that Taylor be promoted to the DS-09 level because Taylor had demonstrated the skill and ability to perform at the next higher level and had the required time in grade. On August 22, 2000, Leonard Benson, white male, who served as the Director of the Department of Engineering and Technical Services, denied the request. During this same period and over a number of years, Taylor observed that similarly situated Caucasians were hired at higher grades than blacks, promoted without serving any specific time within grade for career ladder promotions, while blacks were required to work five years for each career ladder promotion, and frequently promoted over blacks who were more experienced and qualified. 11. On September 19, 2000, Taylor filed a charge of race discrimination with the EEOC alleging denial of promotion and retaliation, and class based claims against the Agency. Taylor has exhausted all administrative remedies and has been issued a right to sue letter by the EEOC. This complaint has been filed within 90 days of receipt of the right to sue letter.
CLASS ACTION ALLEGATIONS 12. Plaintiff brings this Class action on behalf of himself and all others similarly situated, for the purpose of asserting the claims alleged in this Complaint on a common basis. Plaintiff's proposed class is defined as all African Americans who were employed by the Defendant District of Columbia Water and Sewer Authority at any time after October 1, 1996 and who have been or may be subjected to the Defendant s policies and practices challenged herein. 13. This action is brought and may properly be maintained as a Class action pursuant to the provisions of Federal Rules of Civil Procedure 23(a)(1)-(4) and, as appropriate,
5

23(b)(1), (b)(2) and/or (b)(3). This action satisfies the numerosity, commonality, typicality, adequacy and predominance and superiority requirement of those provisions. 14. Numerosity of the Class. Fed. R. Civ. P. 23(a)(1). The Class is so numerous that the individual joinder of all its members is impracticable. WASA has approximately 1300 employees, approximately 900 are black. Plaintiff believes, from his research, that during the period October 1996 through December 2000, WASA has taken personnel actions with adverse consequences on all African American employees. As a result, there are potentially 900 members of the proposed class. Joinder of all class members is therefore impracticable. The precise number of potential class members can be calculated more accurately from WASA's records.
a. requiring black employees to work longer than whites for career ladder promotions;
b. hiring white employees at higher grades and salaries than black employees;
c. disproportionately hiring whites and non-blacks for manager positions to the exclusion of black employees;
d. failing to evaluate employees which places existing black employees at a disadvantage when promotion and hiring decisions are made;
e. utilization of selection and hiring criteria which favor white employees from WSSC and other entities, while excluding black employees at WASA. 15. Existence and Predominance of Common Questions of Law and Fact. Fed. R. Civ. P. 23(a) and 23(b)(3). Common questions of law and fact exist as to all members of the Class and predominate over any questions affecting only individual members of the
6

Class. These common legal and factual questions arise from one central issue, which does not vary from Class member to Class member and which may be determined

without reference to the individual circumstances of any particular Class member. These

common legal and factual questions include, but are not limited to the following: a) Whether Defendant's institutional and systematic failure to provide Plaintiff

and Class members equal employment opportunity when Defendant:

i

requires black employees to work longer than whites for career ladder

promotions;

ii. hires white employees at higher grades and salaries than black employees;

iii. disproportionately hires whites and non-blacks for manager positions to the exclusion of black employees;
iv. fails to evaluate employees which places existing black employees at a

disadvantage when promotion and hiring decisions are made;

v. utilizes selection and hiring criteria which favor white employees from

WSSC and other entities, while excluding black employees at WASA. b) Whether Defendant's actions violated Plaintiff and the Class members'

rights under Section 1981 of the Civil Rights Act of 1871, as amended by the Civil

Rights Act of 1991, 42 U.S.C. Section 1981 ("Section 1981"), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et seq. (Title VII);

c) Whether Plaintiff and Class members are entitled to (1) a declaration of

their eligibility to receive damages or other monetary relief; (2) costs; (3) attorneys fees; and (4) interest from the date they should have been paid to the actual date of payment;

and

7

d) How any and all payments Plaintiff and Class members are declared eligible to receive should be equitably allocated among the Class. 16. Typicality of Claims. Fed. R. Civ. P. 23(a)(3). Plaintiff's claims are typical of the claims of the members of the Class, all of whom have been denied equal access to equal employment opportunities, and have been subject to Defendant's institutional and systematic failure to enforce the civil rights laws intended to benefit Plaintiff and members of the Class, due to Defendant's arbitrary and unlawful actions. 17. Adequacy of Representation. Fed. R. Civ. P. 23(a)(4). Plaintiff is an adequate representative of the Class because he is a member of the Class and his interests do not conflict with interests of the members of the Class he seeks to represent. Plaintiff has retained competent counsel experienced in the prosecution of EEO disputes, experienced in civil rights litigation and class actions, and they intend to prosecute this action vigorously for the benefit for the Class. 18. The Class will be represented by the Law Offices of David A. Branch, P.C. in this matter. The firm has three attorneys, David A. Branch, Stanley Osborne, Jr. and Bobbie James-Hoye. Mr. Branch served as a staff attorney for the U.S. Court of Appeals for the District of Columbia Circuit for three years following a judicial clerkship and has been in private practice for seven years. Mr. Branch has served as lead counsel in approximately 40 employment discrimination cases before the EEOC and local administrative agencies, and state and federal court. The Law Offices of David A. Branch, P.C. is one of several firms representing Black Farmers against the USDA in Pigford v. Glickman, C.A. 971978 (PLF). Mr. Osborne is a graduate of Wake Forest Law School, with six years of
8

practice and experience in EEO matters. Ms. James-Hoye is a graduate of the University of Pittsburgh Law School and practices employment discrimination law. 19. The interests of the members of the Class will be fairly and adequately protected by Plaintiff and Lead Counsel.
Superiority. Fed. R. Civ. P. 23 (b) (2) and (3). 20. WASA has acted and failed to act on grounds generally applicable to the proposed class. The racially discriminatory practices described in paragraphs above, which prevent African Americans from progressing through positions at WASA, have impacted and continue to impact the entire class in the same general fashion. The pattern and practice of discrimination challenged herein also includes WASA's failure to adopt adequate means of auditing decisions to detect patterns of discrimination and its failure to create adequate EEO incentives and disincentives for its managers, both of which are generally applicable to the class. 21. As a result, appropriate final injunctive and declaratory relief will be appropriate for the class as a whole. 22. The requested injunctive and declaratory relief predominates over other forms of requested relief in this action because such injunctive and declaratory relief, which is broad and detailed in scope, is crucial in bringing defendant into compliance with the law and to remedying the effects of WASA's unlawful conduct. 23. A class action is superior to other available methods for the fair and efficient adjudication of this litigation since individual litigation of Class members claims regarding the defendant's institutional and systematic deprivation of their civil rights as described in this Complaint is impracticable. Individual litigation further presents a
9

potential for inconsistent and contradictory judgments and increases the delay and expenses to all parties and the court system in resolving the legal and factual issues of the case. By contrast, the class action device presents far fewer management difficulties and provides the benefits of single adjudication of what essentially is one problem, economies of scale, and comprehensive supervision by a single court. Notice of the pendency of any resolution of this class action can be provided to class members by publication; in addition, Defendant has the class members' addresses and personnel files on computer, readily available. 24. The various claims asserted in this action are additionally or alternatively certifiable under the provisions of Federal Rules of Civil Procedure 23(b)(1) and 23(b)(2) because:
a) The prosecution of separate actions by the individual members of the Class would create a risk of inconsistent or varying adjudications with respect to individual Class members, thus establishing incompatible standards of conduct for Defendant;
b) The prosecution of separate actions by individual Class members would create a risk of adjudications that would, as a practical matter, be dispositive of the interests of the other Class members not parties to such adjudications or would substantially impair or impede the ability of such non-party Class members to protect their interests; and
c) Defendant has acted on grounds generally applicable to the Class, thereby making appropriate final declaratory relief with respect to the Class as a whole.
10

Plaintiff's Claims The Civil Rights Act of 1866, 42 U.S.C. Sec. 1981 25. Plaintiff realleges and incorporates by reference paragraphs 1 through 24 above as if set forth fully herein. 26. WASA has denied Plaintiff and all members of the proposed class the same right to make and enforce contracts as enjoyed by white citizens employed at WASA, including rights involving the making, performance, modification, and termination of contracts with WASA and the enjoyment of all benefits, privileges, terms, conditions, of that relationship, in violation of the Civil Rights Act of 1866, 42 U.S.C. Sec. 1981, as amended. 27. In the employment practices described above, WASA acted in intentionally, maliciously, and with willful, wanton and reckless indifference to the federally protected rights of the named Plaintiff and the members of the class they represent. Intentional discrimination against African Americans seeking higher positions has been and continues to be a standard operating procedure within WASA. 28. As a result of the acts of WASA described above, the named Plaintiff and the members of the class they represent have suffered and continue to suffer harm, including but not limited to financial loss, humiliation, embarrassment, emotional distress and mental anguish. 29. By reason of WASA's discrimination, Plaintiff and members of the proposed class are entitled to all legal and equitable remedies under Sec. 1981, as amended.
11

Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. 30. Plaintiff realleges and incorporates by reference paragraphs 1 through 29 above as if set forth fully herein. 31. WASA has discriminated against plaintiff and all members of the proposed class with respect to the compensation, terms, conditions or privileges of employment, and has limited, segregated, or classified class members in ways that deprive or tend to deprive them of employment opportunities and otherwise adversely affect their status as employees, all because of their race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., as amended by the Civil Rights Act of 1991. 32. In the employment practices described above, WASA acted in intentionally, maliciously, and with willful, wanton and reckless indifference to the federally protected rights of the named Plaintiff and the members of the class they represent. Intentional discrimination against African Americans seeking higher positions has been and continues to be a standard operating procedure within WASA. 33. Defendant's promotional decisionmaking and compensation practices challenged herein, the elements of which are not capable of separation for analysis, has had and continues to have a disparate impact on the basis of race. These employment practices are not job related for the positions in question and are not consistent with business nece ssi ty. 34. As a result of the acts of WASA described above, the named Plaintiff and the members of the class they represent have suffered and continue to suffer harm, including but not limited to financial loss, humiliation, embarrassment, emotional distress and mental anguish.
12

35. By reason of WASA's discrimination, Plaintiff and members of the proposed class are entitled to all legal and equitable remedies under 42 U.S.C. Sec. 2000e, as amended by the Civil Rights Act of 1991.
Prayer for Relief WHEREFORE, Plaintiff Taylor and the Class members pray as follows: A. Enter judgment against the Defendant; B. That the court issue an order certifying the Class, and any appropriate subclass thereof, under the appropriate provisions of Fed. R. Civ. P. 23, and appointing Plaintiff (class representatives) and David A. Branch and the Law Offices of David A. Branch, P.C. as Lead Counsel to represent the Class; C. That the court issue an Order declaring Defendant's actions to be a violation of Plaintiff's rights under Title VII of the Civil Rights Act of 1964, as amended and Section 1981, as amended, and declaring Plaintiff and Class members eligible to receive equitable and other relief; D. Issue a permanent injunction prohibiting WASA and its officers, agents, employees, and successors from engaging in any discriminatory hiring, promotion or compensation employment practices; E. Order WASA to restrain from any retaliation against plaintiff or class members, or any other person, for participating in or supporting this case in any manner; F. Enter judgment in favor of Plaintiff and class members against WASA for all equitable monetary damages available under the law, including but not limited to back pay and front pay in amounts to be determined at trial;
13

G. Order WASA to pay compensatory and punitive damages in amounts to be determined at trial. H. Order WASA to pay pre-judgment and post-judgment interest as provided by law. I. Retain jurisdiction for five years or until such time as the court is satisfied that WASA has remedied the practices complained of herein and is determined to be in full compliance with the law.

DATED:

November 13, 2007 Washington, DC

Respectfully submitted,
/s David A. Branch Bar #438764 Law Offices of David A. Branch, PC 2200 Massachusetts Avenue, N.W. Washington, D.C. 20036 (202) 785-2805

JURY DEMAND Plaintiff demands a jury trial on all counts.

14

 
 Case 1:01-cv-00561-HHK Document 110-3 Filed 05/25/2005 Page 1 of 17
Evaluating Whether Employment Practices At District of Columbia Water And Sewer Authority
Are Racially Neutral by
Alexander Vekker, Ph.D.
January 21, 2005

Case 1:01-cv-00561-HHK Document 110-3 Filed 05/25/2005 Page 2 of 17
I, INTRODUCTION This report contains the results of my preliminary study of compensation and promotions for
employees of District of Columbia Water and Sewer Authority ("WASA"). I have been asked to analyze whether the awarding of employee compensation and the selections of employees for promotions are racially neutral. Using the data provided by WASA, I have identified 999 individuals who are African-American and are also employed at WASA (interns are excluded) at any time between approximately October 24, 1999 and December 31, 2001.
My analyses use data provided by WASA to compare employee outcomes for African American and Caucasian employees of WASA who are similarly situated. I use these data to examine statistically whether employment outcomes are consistent with racially neutral practices. Racially neutral employment practices exist when there are no systematic differences in outcomes — i.e., compensation or promotions— by race for similarly situated employees. Systematic differences exist when there are statistically significant patterns associated with race; that is, systematic differences exist when there are racial differences that are unlikely to arise from random variation or chance.
I find that the awarding of compensation at WASA is not racially neutral. Between 1999 and 2001, African Americans receive significantly lower levels of compensation than do Caucasian employees with the same job title and tenure at WASA.
I was unable to reach any conclusions with respect to the analysis of WASA's selections of employees for promotions.

Case 1:01-cv-00561-HHK Document 110-3 Filed 05/25/2005 Page 3 of 17
IL ANALYSES OF COMPENSATION AND PROMOTIONS In this section, I analyze the racial neutrality of the compensation paid to employees and the
selections of employees for promotions at WASA. I analyze salaries for WASA employees by race between 1999 and 2001.
Economists expect that salary will vary with the productivity of workers. Productivity of workers is not directly observed, however, and is difficult to measure. For that reason, economists generally focus upon the characteristics that make one worker more or less productive than another, rather than upon productivity itself. Human capital theory is a widely accepted analysis of the determinants of productivity differences among individuals. The theory focuses upon the investments that individuals make that increase their skills and thus make them more productive. The following factors are particularly important:'
(1) Experience, measured by tenure with an employer or in a particular job; and (2) Occupational expertise acquired before hire. Therefore, human capital theory leads us to some common sense conclusions. If one individual has more job experience or comes to WASA with more valuable occupational experience, he or she is more likely to be entitled to a higher salary. To quantify racial differences, it is necessary to control for any systematic differences between African-American and Caucasian employees in their qualifications (that are the result of employee - as opposed to WASA - actions) at the time of hire. There are, then, two important elements of employee qualifications that determine whether they should be included in the analysis of WASA's employment decisions:
Usually formal education is included as a human capital factor that affects salaries. I did not receive any data on education from WASA,
2

Case 1:01-cv-00561-HHK Document 110-3 Filed 05/25/2005 Page 4 of 17
(1) the qualifications differentials are systematic by race after the inclusion of other included credentials; and
(2) the qualifications differentials are not the results of decisions made by WASA. Salaries at WASA are being studied in order to determine the extent to which employee's race affects salaries. Therefore, it is only necessary that the analyses compare equivalently qualified groups of African-Americans and Caucasians. Any qualifications that affectsalaries that are possessed by equivalent proportions, or in equal intensity, by both racial groups after controlling for any qualification differences already included in the model or analysis, cannot affect the size of the racial disparity and, therefore, cannot affect the true level of racial disparity in compensation. The salary analyses are not designed to explain the salaries of particular WASA employees. Although it is difficult to imagine a situation where a computer or statistical model would be used to award compensation for individuals, such a model would have to include all relevant qualifications for which any employees differ. In that way, a model that is designed to identify individual compensation is fundamentally different from a model that is designed to determine differences in compensation across groups of employees defined by a characteristic, such as race. Any racial differences in qualifications of employees that arise from WASA's previous selections for promotion, job assignments, or its past compensation decisions (as opposed to the credentials and abilities that employees possessed when they started at WASA) are part of WASA's actions that may create racial disparities in compensation. Controlling for such differences in qualifications could inappropriately reduce estimates of average racial differences. Compensation differences that cannot be explained by differences in credentials that employees bring to WASA are suspect if they are also associated with race. After appropriately taking account of productivity, economists generally attribute such differences to discrimination.
3

Case 1:01-cv-00561-HHK Document 110-3 Filed 05/25/2005 Page 5 of 17

I use Human Resources data provided by WASA for my compensation analyses.2 It shouldbe noted that the data supplied do not include all of the information that I requested and would prefer to have for my analysis. The database contains limited information on all transactions involving WASA employees between approximately October 24, 1999 and December 31, 2001. The transactions data include information on the activities that changed the status of employees, including (but not limited to) salary changes, job assignment changes, and promotions. I use the data to determine which African American and Caucasian employees are active at the end of each year. All regular employees "active" at the end of the year are included in the analyses.
To analyze whether there is a pattern of racial disparities in salaries at WASA, I use linear regression analysis (the appropriate technique for analyzing a continuous dependentvariable such as salary). I examine whether there is any difference in salaries by race, after adjusting for potential racial differences in occupation and experience. The regression analysis technique I employ is commonly used by economists to measure the impact of explanatory variables such as race and other employee characteristics on a dependent variable such as salary. The technique is illustrated in Table 1, which summarizes the analyses for the years 1999 through 2001.
In these analyses, the regression coefficient for race tells us the percentage effect of race on annual salaries after adjusting (or controlling) for the effect of the other explanatory variables included in the regression equation. The employee characteristics used in calculating the differential are race, job title, and tenure at WASA. It should be noted that job title is assigned byWASA. In my compensation analysis I assume that job title assignments are raceneutral. If, however, such assignments are not race neutral, my compensation analysis may underestimatethe true size of racial

2

I have received the following data files: active employees' job and compensation history, active employees' job

and compensation history setup first line data, employee rosters by department at the end of each year from 1999 through

2001, inactive employees' job and compensation history.

4

Case 1:01-cv-00561-HHK Document 110-3 Filed 05/25/2005 Page 6 of 17

differences in compensation at WASA. The racial differential that I measure reflects the average salary disparity between African Americans and Caucasians with the same time atWASA and the same job title. The dependent variable is the natural logarithm of the annual salary.3
Table 1, row 1, reports that African Americans earn approximately 4.6% less than Caucasians with the same tenure at WASA and the same job in 1999. The racial differences in 1999 salaries were 4.82 standard deviations beyond zero or no difference. Standard deviations are a measure of statistical significance that courts use to assess whether a racially neutral process could have generated the observed racial differences by chance. As the number of standard deviations increase, the probability that racial differences could have been generated by chance decreases. The courts generally require that a racial difference be a minimum of two standard deviations, which is comparable to a maximum probability of five in one hundred (or five thousand in 100 thousand) that a racial difference is due to chance. A difference of 4.82 standard deviations means that the probability is less than seven in 100 thousand that the racial difference occurs bychance.
Row 2 of Table 1 reports the same differential for 2000. In 2000, the difference is 5.6% or 5.87 standard deviations.
Finally, row 3 of Table 1 reports the differential for 2001. In 2001, the difference is 5.5% or 5.87 standard deviations.
The wage disparity by race is statistically significant for all years between 1999 and 2001. The wage differences by race for each year are substantially greater than the two standard deviations usually required by the courts to dismiss chance as the reason.

3

The use of logarithms is a technical adjustment that is commonly made in such analyses.

4

Since the dependent variable is the natural logarithm of annual salaries, each regression coefficient may be

interpreted as the approximate percentage effect of the dependent variable of a unit change in the independent variable.

However, the regression coefficient is only an approximate percent. To get the actual percentage p, one must compute p
= eaI wherefi is the coefficient. For this coefficient, e°'744- I = -.046.

5

Case 1:01-cv-00561-HHK Document 110-3 Filed 05/25/2005 Page 7 of 17

I have also attempted to analyze WASA's selections of employees for promotions. It is my understanding that many promotions at WASA involve a change in the employee's pay grade. It is my further understanding that some job titles include some employees who are on careerladders and some who are not. I was not able to conduct a meaningful analysis of promotions since I did not have any information on pay grade or any indication of which employees were on career ladders in the data provided to me.

III. ANALYSIS OF INITIAL SALARY In this section, I analyze whether there are racial differences in initial salary levels. The
analysis uses an ordinary least squares regression analysis of (the natural logarithm of) initial salary for employees hired between October 24, 1999 and December 31, 2001. I examine whether there are any racial differences in annual base salary rates assigned at hire, after adjusting for racial differences in qualifications (i.e. experience and job title). The results show that the initial base salaries for African Americans were set 2.8% lower than those for Caucasians hired in the same year and in the same job title. The racial difference is 0.99 standard deviations beyond no difference (or zero). While this difference is below two standard deviations the statistical test is not very powerful ("useful") due to relatively small number of initial hires and the relatively large number of job titles.5 The results imply that at least half of the racial differences in total compensation could be due to racial differences in initial salary levels. Additional data of the sort I initially requested would be required to confirm or reject this hypothesis.

5

Power refers to the ability of the analysis to make correct decisions, that is, to uncover discrimination when it

exists. As the number of observations in an analysis decreases and the number of characteristics controlled increases, the

power of the statistical test decreases.

6

Case 1:01-cv-00561-HHK Document 110-3 Filed 05/25/2005 Page 8 of 17
VI. CONCLUSIONS My statistical analysis is consistent with racially discriminatory compensation practices at
WASA. My analysis provides evidence that WASA's salaries are not racially neutral. AfricanAmerican employees have statistically significant lower salaries than Caucasians. AfricanAmericans receive 4.6% to 5.6% less than Caucasian employees in the same job and with the same tenure at WASA.
Finally, African-American employees at WASA are more likely to be assigned a lower salary than comparably qualified Caucasian employees.
My conclusions are preliminary because they are based on the limited data that have been made available to me. If I receive additional data, I will consider how it might affect the preliminary conclusions I have reported here.
7

Case 1:01-cv-00561-HHK Document 110-3 Filed 05/25/2005 Page 9 of 17
Alexander Vekker, Ph.D. January 21, 2005

 
 Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 1 of 35
ANALYSIS OF COMPENSATION
FROM 1999-2001
AT THE DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY
Prepared for Sheppard, Mullin, Richter & Hampton, LLP
Washington, D.C.
Prepared by Paul F. White, Ph.D.
ERS Group Washington, D.C.
September 15, 2005

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 2 of 35
ANALYSIS OF COMPENSATION
FROM 1999-2001
AT THE DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY
I. Introduction
This analysis was undertaken at the request of Sheppard, Mullin, Richter & Hampton, LLP. ERS Group was asked to review the analysis of the plaintiffs' expert witness and to conduct an analysis of compensation levels at the District of Columbia Water and Sewer Authority (WASA). I am a Director of ERS Group in Washington, D.C. ERS Group is a consulting and research firm whose professionals work with individuals, government agencies, universities, corporations and other businesses to analyze employment decision-making processes. My primary field of research is in the area of employment discrimination. ERS Group charges $325 per hour for my services. A detailed list of my credentials and the list of cases in which I have given testimony are outlined in Exhibit A of this report.
This report is organized as follows: Section II lists the data sources that I have reviewed in preparation of this report. Section III discusses the methodology behind my analyses. Section IV presents the results of the statistical analyses. Section V provides comments on the plaintiffs' expert's analyses. This report concludes with a summary in Section VI.
II. Data Sources
The data and documents I have reviewed for this report are the following: • Plaintiffs' Second Amended Complaint, dated December 19,2002. • Plaintiffs' Brief in Support of Plaintiffs' Amended Motion for Class Certification, dated
February 4, 2005 (including exhibits).

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 3 of 35
• DC Water and Sewer Authority Compensation Policies and Procedures Guidelines (Bates Stamp# D000001-D000168).
• DC Water and Sewer Authority Personnel Policies and Procedures Manual (Bates Stamp # D000853-D001067).
• "Evaluating Whether Employment Practices At District of Columbia Water And Sewer Authority Are Racially Neutral" by Alexander Vekker, Ph.D. Plaintiffs' Expert's Report dated January 21, 2005 (including backup databases and documentation relied upon by the plaintiffs' expert, and the draft transcript of his August 9, 2005 deposition).
• February 6, 2002 Arbitration Transcript, pages 179-345. • Deposition of Barbara A. Grier, dated November 17, 2004. • Deposition of Walter F. Bailey, dated October 20,2004. • Deposition of Leonard Benson, dated November 12, 2004. • Collective Bargaining Agreements, dated June 1998 and October 2001. • Documents related to the WASA performance evaluation process. • Electronic databases provided by the defendant related to the work histories of WASA
employees from 1999 through 2001.
III. Methodology
In this report, I conduct a statistical analysis of the annual compensation rates for the years 1999 through 2001. The goal of this statistical analysis of alleged employment discrimination is to determine whether the observed employment decisions (in this case, compensation) are significantly different than what would be expected in a race-neutral decisionmaking process. In the context of this case, the question to be answered by my analysis is: once we control for the employee characteristics that determine compensation levels, is there a statistically significant difference in the compensation levels between black and white employees?
2

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 4 of 35
The statistical test utilized in my analysis is a multiple regression analysis. Generally speaking, a multiple regression accounts for any systematic differences between the protected and non-protected employees with respect to factors that are used in the compensation decisionmaking process. After accounting for these systematic differences, we can then determine whether or not the remaining pay differences between black and white employees can be attributed to random chance (i.e., whether or not the pay differences are statistically significant). The 2.0 standard deviation threshold is used to determine whether or not a result is statistically significant.
Compensation Rate Analyses I was asked to analyze the annual salary levels at WASA during the time period 1999 through 2001. The goal of a statistical analysis of compensation is to construct a statistical model that reflects as closely as possible the decision-making process that was used to establish salary levels. Failure to use a model that reflects the decision-making process may result in misleading conclusions. Below is an overview of the multiple regression models contained in this report: 1. I examine three snapshots of employees - those who were actively employed at WASA on December 31st of each year (1999, 2000, and 2001). 2. There are different compensation structures for employees within WASA which should be considered in a statistical analysis. The Compensation Policy and Procedures Guidelines provide details about the salary schedules, grades, and steps that are utilized by WASA. For each year-end, I conducted a separate regression analysis for employees in each of the same salary schedules. Based upon the Compensation Policy and Procedures Guidelines, virtually all employees are found in one of the following salary schedules during this time period: 1
1 For each year, there are a small number of employees who are not in a pay grade structure. The counts by year are: six in 1999, six in 2000, and one in 2001. The tables in Exhibit B list these individuals.
3

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 5 of 35
a. District Service employees (DS)2 b. Supervisory Wage (SW) c. Regular Wage (RW) d. LeaderWage(LW) e. "Open" Grades for non-union employees beginning in 2000 and fully
implemented in 2001.
3. Consistent with the plaintiffs' expert, this analysis examines only black and white employees.
4. Consistent with the plaintiffs' expert, all Interns are excluded from the analysis.
5. The dependent variable in each regression is the Annual Pay Rate.3
6. Each regression controls for the following employee characteristics as of the end of each calendar year:
a. An indicator for race (black/white). This is the variable at issue. The coefficient associated with this control will tell us whether or not the pay differences between black and white employees are statistically significant after we control for the other factors listed below.
b. Years of WASA experience (and the squared term). Company seniority is a common control in compensation analyses. The squared term captures the common finding that salary levels increase more quickly at the earlier stages of someone's tenure, and then increase more slowly at the later stages.
c. A proxy for potential experience prior to working at WASA (and the squared term). Measured as (age-years at WASA- 18). A review of the data indicates that there are multiple instances of employees at the higher levels of the pay grades with relatively fewer years at WASA. Without a control for their prior experience, the regression model would not be able to differentiate between someone highly experienced and someone coming directly from school, potentially providing misleading results.
d. Job Title. People with different job titles have different pay grades, and thus different salary levels.4
2 District Service salary schedules are further refined by occupational categories. Service Code A06 covers Clerical DS employees, Service Code A05 covers Engineering and Architecture Professional DS employees, and AOl covers the remaining DS employees. For the DS regressions, I include additional controls for the Service Code category. 3 The plaintiffs' expert used log(salary) as the dependent variable. This topic will be addressed later in my report. 4 Deposition of Barbara A. Grier, page 35.
4

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 6 of 35

IV. Results of Statistical Analyses The table in Exhibit D contains the results of the compensation analyses from 1999
through 2001. The below table summarizes the results:8

Year End 1999 1999 1999

Salary Schedule
DS RW
sw

Table 1

Analysis of WASA Annual Compensation

1999-2001

Number of Number of

Race

Number of

White

Black Differential Standard

Employees Employees (annual$) Deviations

75

288

$-638

-l.08

74

539

$-327

-2.22

26

60

$432

0.53

Significance none
negative none

2000 2000 2000 2000

DS Grade
RW
sw

70

257

$-1,110

-1.95

none

21

57

$452

0.33

none

65

512

$-211

-1.43

none

15

40

$-960

-1.20

none

2001 DS 2001 Grade 2001 RW

37

160

$-1,086

-1.29

none

61

177

$-3,138

-2.46 negative

63

471

$-264

-1.66

none

As can be seen from the above table, from 1999 through 2001, of the ten regression
analyses, eight did not show a statistically significant result adverse to black employees.
There were two instances (SW in 1999 and Open Grades in 2000) where black employees had
a positive pay differential, albeit not a statistically significant difference. There are two instances where there was a statistically significant result adverse to
black employees. RW employees in 1999 had a negative pay differential of $327 per year,
which is statistically significant at -2.22 standard deviations. Open Grade employees in 2001
8 Whether or not there should be a single regression for each year or a separate regression for each pay plan can be addressed from a statistical standpoint as well as a policy standpoint. In the context of this case, the "Chow test is a commonly-used procedure that tests whether or not there is a significant difference in the regression results for each pay plan. The Chow tests for the WASA compensation structures were statistically significant, indicating that it is appropriate to conduct a separate regression analysis for each pay plan. Exhibit E contains the results of the Chow test.
6

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 7 of 35

had a significant negative differential of $3,138 on an annual basis, which is statistically

significant at -2.46 standard deviations. Another feature of the multiple regression analysis is that it allows us to focus on the

group of employees that most contribute to the significant differential. For the two groups

that are statistically significantly negative, we conducted a separate regression for each pay grade within each group.9 Exhibit F contains the results of these analyses, which are

summarized below:

Year End 1999 1999 1999 1999 1999 1999 1999 1999 1999

Salary
Schedule
RW RW RW RW RW RW RW RW RW

Table 2

Analysis of WASA Annual Compensation

RW in 1999 and Open Grades in 2001

Number

Number Number

Race

of

of White of Black Differential Standard

Grade Employees Employees (annual$) Deviations

03

0

48

05

0

23

06

0

22

07

2

58

$-718

-0.62

08

0

48

09

28

145

$-97

-0.43

10

24

96

$-553

-1.92

11

18

98

$-95

-0.32

12

2

1

Sil~nif'JCance
none none none none

2001 Grade

12

2001 Grade

13

2001 Grade

14

2001 Grade

15

2001 Grade

16

2001 Grade 17

2001 Grade

18

2001 Grade 19

2001 Grade 20

2001 Grade 21

0

8

0

9

0

14

13

54

$-920

-0.72

none

10

42

$-1,952

-0.52

none

14

17

$-7,109

-2.12 negative

14

25

$-5,691

-2.58 negative

6

6

2

2

2

0

9 Because of the relatively small number of people in these by-grade analyses, I do not include a control for title in the by-grade regressions in Table 2.
7

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 8 of 35
As the above table demonstrates, for the RW-07 employees, in grades where there are both black and white employees, none of them have a significant differential by themselves. Grade RW-07 (58 black and 2 white employees) has the largest dollar differential at $717 per year.
When the entire RW regression from Table 1 is run without the 60 RW-07 employees (the grade with the largest dollar differential), the pay differential for all of RW falls to $265 per year and is then not statistically significant at -1.78 standard deviations. This indicates that although the overall RW regression is statistically significant, the significance is a borderline result in that it is caused by a relatively small subset of the RW employees.
For the Open Grades in 2001, there are two grades where the differential is significant and adverse to black employees. Grade 17, with a differential of $7,109 is significant at -2.12 standard deviations. Grade 18, with a differential of $5,691, is significant at -2.58 standard deviations.
When the entire Open Grade regression from Table 1 is run without the 31 black employees in Grade 17 (the grade with the largest differential), the pay differential for all of the Open Grades falls to $2,646 and is then not statistically significant at -1.91 standard deviations. Again, this indicates that although the overall Open Grade regression is statistically significant, the significance is caused by a relatively small subset of the Open Grade employees.
The below table summarizes the regression results for RW-07 in 1999 and the Open grades in 2001, when the black employees in the grades with the largest differentials are not included in the analysis. The full table is found in Exhibit G.
8

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 9 of 35

Year End
1999
2001

Table 3

Analysis of WASA Annual Compensation

RW without RW-07 in 1999 and Open Grades without Open Grade 17 in 2001

Number

Race

of

Salary Number of White

Number of Black Differential Standard

Schedule

Employees

Employees

(annual$) Deviations

RW

72

481

$-265

-1.78

Grade

47

160

$-2,646

-1.91

Significance None None

The multiple regression analyses indicate that, although there are a couple instances where there is a significant differential adverse to black employees, in most instances, there is not a significant difference between the annual pay of black employees and the annual pay of white employees at WASA. For those instances where there is a significant differential, the cause of the differential is limited to a relatively small number of employees. From a statistical standpoint, there is not a pattern of statistically significant differentials adverse to all black employees at WASA.

V. Plaintiffs' Expert's Analyses I have three general concerns with the analysis of the plaintiffs' expert, as set forth in
his January 21, 2005 report. First, the regression analysis he constructs inappropriately compares employees who are not similarly-situated (i.e., his analysis fails to account for the fact that these employees are on different pay plans and in different pay grades). A review of the salary schedules clearly shows that the pay levels are determined by the pay plan, grade, and step (and Service Code in the case of DS employees). The plaintiffs' expert's analysis disregards these differences in salary schedules and combines all employees into a single regression analysis per year.
9

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 10 of 35
Second, the plaintiffs' expert did not control for other factors that are significant determinants of compensation levels, namely pre-WASA experience, department, and union status. Failure to account for these other factors leads to a statistical model that does not reflect the decision-making process, thus resulting in misleading conclusions.
My third concern is based upon the methodology used in the plaintiffs' expert's analysis of starting pay rates. In his analysis of starting pay, the plaintiffs' expert controlled for race, job title at hire, year of hire, and WASA experience (to the extent that someone had any WASA experience at the time of hire). The plaintiffs' expert's analysis of starting salary did not account for the factors that reflect the employees' qualifications and market value at the time of hire, namely, education, prior experience, pay rate at the previous job, plus any other factors WASA considers to be important when setting initial salary levels.
The plaintiffs' expert uses the natural log of the annual pay rate as his dependent variable, whereas my analysis uses the annual pay rate itself. Since both approaches are common and acceptable, I have no concerns with the plaintiffs' expert's use of the natural log transformation for this case. For comparison purposes, I have run my models using the natural log of the annual pay rate. Exhibit H contains the results of that analysis. A review of the tables in Exhibit H shows that there is less statistical significance with the natural log analysis. The RW employees in 1999 are still statistically significant, but with a smaller number of standard deviations (now at -2.05 s.d., compared to -2.22 s.d. in the annual rate analysis). The Open Grade employees in 2001 now have a borderline result with -2.00 standard deviations (compared to the -2.46 s.d. in the annual rate analysis). 10
10 The other tables in Exhibit H show that, similar to the annual pay rate analysis, the significance of these two groups disappears when RW-07 employees in 1999 and Open Grade 17 employees in 2001 are excluded.
10

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 11 of 35
VI. Summary and Conclusions My analysis of the data from 1999 through 2001 shows that, although there are two
areas where there is a significant differential between black and white employees' annual compensation, the remaining eight areas show no statistically significant difference between black and white employees' annual compensation.
The two areas where there is a significant differential are both borderline results in that the significance for both groups is generated by a relatively small subset of employees (60 people in 1999 and 31 people in 2001). When these subsets of employees are not in the regressions, there is no statistical significance in any of the analyses.
The plaintiffs' expert's analysis of annual salary produces misleading results for two primary reasons. First, his analysis does not take into account the fact that the compensation levels are set under different pay plans. There are five different pay plans during this time period, yet the plaintiffs' expert's analysis lumps all employees into a single group without consideration for the salary schedule of each employee. Second, the plaintiffs' expert's analyses do not take into account other factors that have been shown to significantly determine compensation levels, namely union status, department, and experience prior to working at WASA. Both of these oversights lead to the plaintiffs' expert's results that appear statistically significantly adverse to all black employees, when in fact most of the black employees are in salary schedules where there is not a significant differential. The analyses contained in my report show that there is no pattern of statistical evidence to suggest that black employees were compensated at a rate that is significantly lower than their white similarly-situated co-workers.
11

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 12 of 35 This report is based upon the sources cited herein. If additional information becomes
available that substantially changes my conclusions, this analysis is subject to update and revision.
12

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 13 of 35
ANALYSIS OF COMPENSATION
FROM 1999-2001
AT THE DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY
CERTIFICATION
I hereby certify that the above listed report was written by Paul F. White, Ph.D., on this 15th day of September, 2005.
I certify that I have no interest, present or contemplated, in the above matter and that neither the employment to produce the report, not the compensation, is contingent on the conclusions of the report.
I certify that according to my belief and knowledge, all statements and information in the report are true and correct, subject to the underlying assumptions.
Paul F. White, Ph.D.

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 14 of 35
Exhibit A Resume and Testimony
Of
Paul F. White, Ph.D.

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 15 of 35

IERSGroup
I.JtlprOon~·E<""""""·~·~

Washington, DC
2100 M. Street NW Suite 810 Washington, DC 20037 (202) 328-1515 (202) 462..0594 FAX http://www.ersgroup.com

PAUL F. WHITE
2100 M Street, NW, Suite 810 • Washington, DC 20037 • (202) 328-1515 pwhite@ersgroup.com
PROFESSIONAL EXPERIENCE:
ERSGROUP • Director {2002 - present)
Design and conduct statistical analyses of alleged employment discrimination and the valuation of economic losses with emphasis in the area of labor economics. Present expert testimony regarding statistical analysis of employment practices and estimates of economic losses before federal and state courts and in other judicial settings. Develop and implement systems to monitor employment practices. Plan, organize and present seminars on the use of economics and statistics in employment discrimination cases.
• Vice-President ERS Group {1998- present)
• Research Economist (1993-1998)
Florida State University • Adjunct Professor (1996-2002)
Member of the graduate faculty for the Executive Management program. Taught courses in Economics and Analytic Research Methods.
National Institute of Health • Research Fellow (1990-1993)
Awarded fellowship to study the economics of aging.
Womble, carlyle, Sandridge, and Rice, Winston-Salem, NC • Consultant (1992)
Researched and analyzed health insurance statistics to be used as evidence in a medical malpractice case.
North carolina State University • Research Assistant (1990)
Provided computer programming assistance on several research projects for the Department of Economics and Business.
North Carolina State University • Teaching Assistant (1989-1990)
Taught "Principles of Economics" labs; prepared lectures, assignments, and examinations for the Department of Economics and Business.
Revised May 2, 2005

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 16 of 35
Professional Experience (Cont.)
EDUCATION: Ph.D., North Carolina State University, Labor/Health Economics, 1993
M.E., North Carolina State University, Economics, 1992
B.S., James Madison University, Economics, 1989 HONORS AND AWARDS:
National Institute of Health Fellowship, 1990 to 1993 SPECIALIZATION:
Labor Economics, Health Economics, Economics of Aging
PUBLICATIONS AND RESEARCH PAPERS:
''The Use of Attrition Rates for Economic Loss Calculations in Employment Discrimination cases - A Hypothetical Case Study," (with Josefina Tranfa and Fredrick Holt) Journal of Forensic Economics, Vol. XVI, No. 2, Spring/Summer 2003 (Published September 2004}.
"The Numbers Game: Statistics offered to show discrimination may promise more than they prove," (with Leslie Turner), Legal Times, Volume XXVII, No. 16, April 2004.
"Cost-Efficient Use of Your Expert Witness - From the Expert Witness' Point of View," Bar Bulletin, Maryland State Bar Association, October 2002.
"The Use of an Economist in Labor and Employment Disputes: Legal and Practical Considerations," (with James Garrity), The Florida Bar Journal, Vol. LXXIV, No. 11, December 2000.
"Approaches for Dealing With Small Sample Sizes in Employment Discrimination Litigation," (with Michael J. Piette), Journal of Forensic Economics, Vol. XII, No. 1, Winter 1999.
"Use of 'Reverse Regression' in Employment Discrimination Analysis," (with Michael J. Piette), Journal of Forensic Economics, Vol. XI, No.2, Spring/Summer 1998.
Review of "Tenure, Discrimination, and the Courts" by Terry L. Leap, Journal of Forensic Economics, Vol. IX, No. 2, Spring/Summer 1996.
"Allocating Time to Caring and Working: Evidence from the National Long-Term care Survey," working paper with Dr. Ann A. McDermed and Dr. Alvin E. Headen.
Long-Term Care of the Disabled Elderly, "Working vs. Helping- A caregiver's Dilemma," Ph.D. Dissertation, Department of Economics, North carolina State University, August, 1993.
"The Proposed Virginia Coal Slurry Pipeline and Its Employment Effects on the Railroad Industry," (with Ehsan Ahmed), Journal of Applied Business Research, Fall, 1990.

IERSGroup
s.won Ulpioo ~ • Ett>nom;a • Analysis •

P. White, Page 2 of 4

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 17 of 35

PRESENTATIONS/PROFESSIONAL MEETINGS:
"Employment Discrimination: Economic and Statistical Evidence," ERS Group seminar, various dates and locations.
"Crafting Effective and OFCCP Compliant Affirmative Action Plans," ERS Group seminar, various dates and locations.
"Use of Statistics in Employment Litigation," presented as part of a seminar entitled "Federal Aviation Administration Personnel and Labor Law Conference," Atlanta, GA, 2005.
"Economic Damages: The Effects of Explicit and Implicit Methodological Decisions," paper presented as part of a seminar entitled "Current Developments in Labor & Employment Law," The Center of Continuing Professional Development, Louisiana State University, Baton Rouge, LA, 2005.
"Employment Class Actions: case Law Developments, Statistical Issues and Practical Suggestions," (with Alison B. Marshall). Sponsored by the Bar Association of the District of Columbia, Washington, D.C., 2004.
"The Use of Statistics in Employment Litigation: The Importance of Assumptions," Employment Law Seminar, Sponsored by: Federal Bar Association, Broward County Chapter, Broward County Bar Association - Employment Law Section, Broward County Women Lawyers Association, Fort Lauderdale, Florida, 2003.
"What Happens When We Assume: Don't Let It Happen to Your Economic and Statistical Expert," paper presented as part of a seminar entitled "Current Developments in Labor & Employment Law," The Center of Continuing Professional Development, Louisiana State University, Baton Rouge, LA, 2003.
"The Use (and Misuse) of Economics and Statistics in Employment Litigation," paper presented as part of a seminar entitled "Employment Law 2000: The Right Mix," Louisiana State Bar Association, New Orleans, LA, 2000.
"Analyzing Allegations of Discrimination in Termination cases," paper presented as part of a seminar entitled "Employee Discharge and Documentation," Tallahassee, Florida, 1995-2000.
"Private Sector Employment Opportunities for Economics Majors," presentation for Omicron Delta Epsilon, Florida State University's economics honor society, Tallahassee, FL, 1998.
"Approaches for Dealing With Small Sample Sizes in Employment Discrimination Litigation," (with
Michael J. Piette) paper presented at the Southern Economic Association Annual Meetings, Atlanta, GA, 1997.
"The Use of 'Reverse Regression' in Employment Discrimination Analysis" (with Michael J. Piette), paper presented at the Allied Social Science Association Annual Meetings, New Orleans, Louisiana, 1997.

IERSGroup
Lilij:ll:ion ~ • £<onomia • Anill)'sls • SoJpport

P. White, Page 3 of 4

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 18 of 35
Presentations/Professional Meetings (Cont.)
"Employment Discrimination/' presentation for Alpha Kappa Psi, Florida State University's professional business fraternity, Tallahassee, FL, 1996. "Informal Caregivers of the Disabled: Applications for the Forensic Economist," paper presented at the Southern Economic Association Annual Meetings, New Orleans, Louisiana, 1995. "Allocating Time to Caring and Working: Evidence from the National Long-Term Care Survey," paper presented at the Southern Economic Association Annual Meetings, Orlando, Florida, 1994. "Estimating the Shadow Price of Informal Care," paper presented at the Allied Social Science Association Annual Meetings, Boston, Massachusetts, 1994. "What President Clinton's Health Care Plan Will Mean to You," lecture presented as part of the Valencia Community College Notable Speaker Series, Orlando, Florida, 1994.
PROFESSIONAL ASSOCIATION AND MEMBERSHIPS:
American Economics Association National Association of Forensic Economics
PROFESSIONAL JOURNAL REFEREE:
Contemoorarv Economic Policy. Western Economic Association Journal of Forensic Economics. National Association of Forensic Economics Litigation Economics Review, National Association of Forensic Economics

IERSGroup
l.itiplion ~ • E<cnomics • Ami)'<is • s._.

P. White, Page 4 of 4

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 19 of 35

IERSGroup
U6pion ~.-. Anolpi<. ~
PAUL F. WHITE
2100 M_ Street, NW, Suite 810 • Washington, DC 20037 • (202) 328-1515 pwhite@ersgroup.com

Washington, DC
2100 M. Street NW
Suite 810
Washington, DC 20037
(202) 328-1515 (202) 462-0594 FAX http://www.ersgroup.com

TESTIMONY

Everette Prince v. Barnes Group. Inc. and Bowman Distribution; No. 5:94-CV-483-F(3), U.S. District Court, Eastern District of North carolina, Western Division. (Declaration)
Kenneth causey v. Citv of Gretna. Florida. et al.; No. 94-40586-WS, U.S. District Court, Northern District of Florida, Tallahassee Division. (Deposition)
Joseph C. Mule, et al. v. Larrv Alton carr. et al.; No. 93-7395 Division "0" Civil Division, Circuit Court, 13th Judicial Circuit, in and for Hillsborough County, Florida. (Deposition)
Stuart N. Robins v. Flagship Airlines and AMR Corooration; No. 94-0589, Orcuit Court, Davidson County, Tennessee. (Declaration)
Louise L. Wilson. Beowulf L. Snell, et al. v. Macon Telegraph Publishing Company, Inc.; No. 5:95CV-522-2 (DF), U.S. District Court, Middle District of Georgia, Macon Division. (Affidavit)
David Hipp. Harry W. McKown. Jr., et al. v. Liberty National Life Insurance Comoany; No. 951332-CIV-T-17A, U.S. District Court, Middle District of Florida, Tampa Division. (Deposition)
Margaret H. Daniel v. University of Southwestern Louisiana; No. 95-2170, U.S. District Court, Western District of Louisiana, Lafayette-Opelousas Division. (Trial)
Lois Gordon. et al. v. Columbia Gas & Electric. et al., No. 95-CI-0095, Court of Common Pleas, Civil Division, Marion County, Ohio. (Deposition)
Connie Yon and Delores Bryant v. Department of Corrections and Steve Comeford; No. 93-4635, Second Judicial Circuit, Leon County, Florida. (Hearing)
Sergio Bonich. et al. v. Herman Miller, Inc., No. 95-3455/CA21, Circuit, Court, 11th Judicial Circuit, Dade County, Florida. (Deposition)
caroline Burney v. Rheem Manufacturing Company, Inc.. No. CV-97-D-1300-N, U.S. District Court, Middle District of Alabama, Northern Division. (Affidavit)
Pamela L. Biggs v. State of Florida. Board of Regents, No. 1:96-CV-185-MMP, U.S. District Court, Northern District of Florida, Gainesville Division. (Deposition)
Faith D. McKnight v. State of Florida, Department of Health and Rehabilitative Services. et al., No. 96-1167-CN-J99(S), U.S. District Court, Middle District of Florida, Jacksonville Division. (Deposition)
Grant H. Danskine. et al. v. Metro Dade County, No. 97-2068-CN-HIGHSMITH, U.S. District Court, Southern District of Florida, Miami Division. (Affidavit & Deposition)
Revised May 3, 2005

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 20 of 35
P. White Testimony (Cont.)
Michael Corlett v. Fine Air Services, Inc., No. 97-3906-CIV-UNGARO-BENAGES, U.S. District Court, Southern District of Florida, Miami Division. {Affidavit)
Gina Edwards v. University of Central Florida. Florida Board of Regents. et. al, No. CI 97-3420(32), Circuit Court, 9th Judicial Circuit, Orange County, Florida. (Deposition)
Garry Joe Tawney v. The Bolles School. No. 97-03038 CA, Circuit Court, 4th Judicial Circuit, Duval County, Florida. (Deposition)
Waymond Pollocks. et al., v. Sunland Training Center at Marianna. Florida. et al., No. TCA 8740103-RH, U.S. District Court, Northern District of Florida, Tallahassee Division. (Trial)
Jeanette Robinson Ward v. Florida State Hospital. Department of Labor and Employment Security, Division of Workers' Compensation, District "A East". (Affidavit)
Craig H. Hull v. Cash America International. Inc., No.98-607-CIV-ORL-19A, U.S. District Court, Middle District of Florida, Orlando Division. (Deposition)
Robert Schanzer. and Robert R. Madison v. United Technologies Corporation. Pratt & Whitney Aircraft Division, No. 3:98CV00834, U.S. District Court, District of Connecticut. (Deposition and Trial)
Donna Aldret v. State of Florida Deoartment of Labor and Employment Security Division of Workers' Compensation, Claim No. 261-92-1891. (Deposition and Hearing)
cv Wilma Nicole Stout v. Baxter Healthcare Corporation, No. 4:99 129-EMB, U.S. District Court,
Northern District of Mississippi, Greenville Division. (Affidavit)
Theodore R. Perin v. County of Nassau, Nassau County Department of General Services and R.A. Augisiewicz, No. 95-024094, Supreme Court of the State of New York, County of Nassau. (Affidavit)
National Association for the Advancement of Colored People. et al. v. State of Florida Department of Corrections. et al., No. 5:00-CV-100-0C-10, U.S. District Court, Middle District of Florida, Ocala Division. (Affidavits, Hearings, Depositions and Trial Testimony)
Kenneth Epperson, et al. v. Pennzoil Products Companv. No. CV97-1797, U.S. District Court, Western District of Louisiana, Shreveport Division. {Affidavits)
American Federation of Government Employees. Local 1617, Kelly Air Force Base. San Antonio, Texas v. San Antonio Air Logistics Center. Kelly Air Force Base. San Antonio. Texas, FMCS No. 990929-17655-3. (Arbitration Testimony)
Birmingham Airport Authority v. Alabama State Ucensing Board for General Contractors, No. CV99-G-1504-S, U.S. District Court, Northern District of Alabama, Southern Division. (Deposition)
Linda Rice Chapman v. Florida Department of Health and Rehabilitative Services, No. 96-23274CA-Q9, Circuit Court for the Eleventh Judicial Circuit, Dade County, Florida. {Trial)
P. White, Page 2 of 3

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 21 of 35
P. White Testimony (Cont.)

Dunkin' Donuts/Third Dunkin' Donuts Realty, Inc. v. AI-Karim Kassam, et al., No. OV00-1428 LH, U.S. District Court, District of New Mexico. (Affidavit)

Jerry R. Pike and Patrick A. Thomas v. Lucent Technologies, Inc., No. 1 00-CV-1406 RWS, U.S. District Court, District of Georgia, Atlanta Division. (Deposition)

Mary E. O'Shea v. Summit Bancorp, Jill Christians. Antoinette Foti, Kevin Gillen. and Mary Przybyla, No. L-9865-98, Superior Court of New Jersey, Law Division: Bergen County. (Affidavit)

Michelle Iliadis and Angela Nelson-Croxton v. Wai-Mart Stores, Inc.. et al., No. L-5498-02, Superior Court of New Jersey, Middlesex County. (Deposition)

John Kohlbek. William Schrack, and Michael Pritchard v. The City of Omaha. Nebraska, a Municipal Corporation, No. 8:03CV68, U.S. District Court, District of Nebraska. (Deposition)

Shelley Hnot. et al. v. Willis Group Holdings Ltd.. et al., No. 01-CV-6558 (GEL), U.S. District Court, Southern District of New York. (Declaration)

International Association of Machinists and Aerosoace Workers, et al. v. U-Haul International. Inc.. et al., No. 28-CA-18783, National Labor Relations Board, Region 28. (Hearing)

u.s. Rosa Scott v. Eastman Chemical Company, No. 2:03-CV-311,

District Court, Eastern District

of Tennessee, Greenville Division. (Deposition and Affidavit)

P. White, Page 3 of 3

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 22 of 35
Exhibit B Employees Not On Pay Grade Structure

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 23 of 35

Exhibit B

Pay Grade "Not Applicable" Employees

1999-2001

Year-End Clock Number Grade/Step Annual

Race

Department

Title

DC Hire Date WASA Tenure PreWASA

1999

1054 NA

$136,000.18 Black (not of Hispanic origin) General Manager

General Manager

6/23/1997

2.5

31.5

1999

1076 NA

$120,253.12 White (not of Hispanic origin) Finance & Budget

Financial Manager

7/21/1997

2.4

26.5

1999

1078 NA

$120,253.12 White (not of Hisr_<!~~_?_r~!l) Q~~11eral M~J!~~-~ Executive Engineerin_g Manager

9/2/1997

2.3

28.6

1999

1123 NA

$112,766.99 Black (not of Hispanic origin) General Counsel

Supvy General Attorney

10/23/1998

1.2

28.5

1999

425 NA

$99,823.15 Black (not of Hispanic origin) Administrative Services Assistant General Manager

8/8/1983

16.4

24.7

1999

1114 NA

$94,570.11 Black (not of Hispanic origin) Human Resources

Human Resources Manager

7/20/1998

1.4

29.9

2000

1054 NA

$172,000.19 Black (not of Hispanic origin) General Manager

General Manager

6/23/1997

3.5

31.5

2000

1076 NA

$122,658.22 White (not of Hispanic origin) Finance & Budget

Financial Manager

7/21/1997

3.4

26.5

2000

1078 NA

$122,658.22 White (not of Hispanic origin) General Manager

Executive Engineering Manager

9/2/1997

3.3

28.6

2000

1123 NA

$115,022.34 Black (not of Hispanic origin) General Counsel

Supvy General Attorney

10/23/1998

2.2

28.5

2000

1114 NA

$96,461.66 Black (not of Hispanic origin) Human Resources

Human Resources Manager

7/20/1998

2.4

29.9

2000

1596 NA

$35,000.16 Black (not of Hispanic origin) Information Technologies Help Desk Support

10/30/2000

0.2

13.9

L__2001 --

1054 NA

$172,000.19 Black (not of Hispanic origin) General Manager

General Manager

6/23/1997

4.5

31.5

911512005

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 24 of 35

Exhibit C

Leader Wage (LW) Employees

1999-2001

Year-End Clock Number Grade/Step Annual Race

Department

Title

1999

125 LW-10/05 $42,660.80 Black (not of Hispanic origin) Water Services, Distribution Water Services Worker Leader

1999

218 LW-10/05 $42,660.80 Black (not of Hispanic origin) Water Services, Distribution Water Services Worker Leader

1999

389 LW-10/04 $41,121.60 Black (not of Hispanic origin) Water Services, Distribution Water Const Repair Wrkr Leader

1999

705 LW-10/04 $41,121.60 Black (not of Hispanic origin) Water Services, Distribution Water Const Repair Wrkr Leader

1999

39 LW-09/05 $40,518.40 Black (not of Hispanic origin) Sewer Services, Repair

Sewer Constr Repairer Wrkr Ldr

1999

61 LW-09/05 $40,518.40 Black (not of Hispanic origin) Sewer Services, Inspection Sewer Services Worker Leader

1999

85 LW-09/05 $40,518.40 Black (not of Hispanic origin) Sewer Services, Repair

Sewer Constr Repairer Wrkr Ldr

1999

298 LW-09/05 $40,518.40 Black (not of Hispanic origin) Wastewater Treatment

WWT Plant Operator Leader

1999

586 LW-09/05 $40,518.40 White (not of Hispanic origin) Facilities, Mgrnnt & Security Painter Leader

1999

279 LW-10/03 $39,603.20 Black (not of Hispanic origin) Water Services, Distribution Water Const Repair Wrkr Leader

1999

290 LW-10/03 $39,603.20 Black (not of Hispanic origin) Water Services, Distribution Water Const Repair Wrkr Leader

1999

616 LW-10/03 $39,603.20 Black (not of Hispanic origin) Water Services, Distribution Water Const Repair Wrkr Leader

1999

531 LW-09/04 $39,062.40 Black (not of Hispanic origin) Sewer Services, Inspection Sewer Services Worker Leader

1999

554 LW-09/04 $39,062.40 Black (not of Hispanic origin) Sewer Services, Inspection Sewer Services Worker Leader

1999

555 LW-09/04 $39,062.40 Black (not of Hispanic origin) Sewer Services, Inspection Sewer Services Worker Leader

1999

666 LW-09/04 $39,062.40 Black (not of Hispanic origin) Sewer Services, Repair

Sewer Constr Repairer Wrkr Ldr

1999

728 LW-09/04 $39,062.40 Black (not of Hispanic origin) Sewer Services, Inspection Sewer Services Worker Leader

1999

65 LW-08/05 $38,604.80 Black (not of Hispanic origin) Material Management

Rigging Leader

1999

92 LW-08/05 $38,604.80 Black (not of Hispanic origin) Material Management

Rigging Leader

1999

164 LW-08105 $38,604.80 Black (not of Hispanic origin) Water Services, Distribution Water Systems Repairer Leader

1999

562 LW-10/02 $38,084.80 Black (not of Hispanic origin) Water Services, Distribution Water Const Repair Wrkr Leader

1999

293 LW-09/03 $37,627.20 Black (not of Hispanic origin) Sewer Services, Repair

Sewer Constr Repairer Wrkr Ldr

1999

746 LW-09/02 $36,171.20 Black (not of Hispanic origin) Sewer Services, Repair

Sewer Constr Repairer Wrkr Ldr

1999

747 LW-09/02 $36,171.20 Black (not of Hispanic origin) Sewer Services, Repair

Sewer Constr Repairer Wrkr Ldr

1999

547 LW-06/05

--~ - - - - - 761 LW-06/04

2000

125 LW-10/05

$34,340.80 Black (not of Hispanic origin) Material Management

Materials Handler Leader

$33,113.60 Black (not of Hispanic origin) Material Management

Materials Handler Leader

$42,660.80 Black (not of Hispanic origin) Water Services, Distribution Water Services Worker Leader

2000

218 LW-10/05 $42,660.80 Black (not of Hispanic origin) Water Services, Distribution Water Services Worker Leader

2000

389 LW-10/04 $41,121.60 Black (not of Hispanic origin) Water Services, Distribution Water Const Repair Wrkr Leader

2000

705 LW-10/04 $41,121.60 Black (not of Hispanic origin) Water Services, Distribution Water Const Repair Wrkr Leader

2000

298 LW-09/05 $40,518.40 Black (not of Hispanic origin) Wastewater Treatment

WWT Plant Operator Leader

2000

359 LW-09/05 $40,518.40 Black (not of Hispanic origin) Wastewater Treatment

WWT Plant Operator Leader

2000

555 LW-09/05 $40,518.40 Black (not of Hispanic origin) Sewer Services, Inspection Sewer Services Worker Leader

2000

586 LW-09/05 $40,518.40 White (not of Hispanic origin) Facilities, Mgmnt & Security Painter Leader

2000

279 LW-10/03 $39,603.20 Black (not of Hispanic origin) Water Services, Distribution Water Const Repair Wrkr Leader

2000

290 LW-10/03 $39,603.20 Black (not of Hispanic origin) Water Services, Distribution Water Const Repair Wrkr Leader

2000

616 LW-10/03 $39,603.20 Black (not of Hispanic origin) Water Services, Distribution Water Const Repair Wrkr Leader

2000 2000

293 LW-09/04 $39,062.40 Black (not of Hispanic origin) Sewer Services, Repair

Sewer Constr Repairer Wrkr Ldr

531 LW-09/04 $39,062.40 Black (not of Hispanic origin) Sewer Services, Inspection Sewer Services Worker Leader

2000

666 LW-09/04 $39,062.40 Black (not of Hispanic origin) Sewer Services, Repair

Sewer Constr Repairer Wrkr Ldr

2000

728 LW-09/04 $39,062.40 Black (not of Hispanic origin) Sewer Services, Inspection Sewer Services Worker Leader

2000

736 LW-09/04 $39,062.40 Black (not of Hispanic origin) Sewer Services, Inspection Sewer Services Worker Leader

2000

92 LW-08/05 $38,604.80 Black (not of Hispanic origin) Material Management

Rigging Leader

2000 '

164 LW-08/05 $38,604.80 }31ack (not of Hispanic origin) Water Services, Distribution Water Systems Repairer Leader

DC Hire Date WASA Tenure PreWASA'

1112311967

32.1

0.0

3/611978

21.8

13.2

3/16/1981

18.8

20.0

12129/1986

13.0

2.8

6/3/1968

31.6

18.0

3/15/1966

33.8

2.7

9/18/1968

31.3

3.5

1123/1978

21.9

12.2

ll/5/1984

15.2

12.7

2/8/1982

17.9

16.5

6/17/1974

25.5

0.2

4/2911985

14.7

13.7

1/22/1985

14.9

4.6

1/9/1984

16.0

6.5

1/9/1984

16.0

13.8

4/211986

13.7

2.5

4127/1987

12.7

20.4

3/14/1966

33.8

3.6

11/28/1966

33.1

2.9

5/1911969

30.6

2.5

115/1987

13.0

6.9

7/1/1974

25.5

0.4

7/18/1988

ll.5

3.7

1017/1990

9.2

6.6

7/5/1988

11.5

21.4

9/2811987

12.3

1.7

1112311967

33.1

0.0

3/6/1978

22.8

13.2

3/16/1981

19.8

20.0

12129/1986

14.0

2.8

1123/1978

22.9

12.2

10/1/1977

23.2

8.3

1/911984

17.0

13.8

11/5/1984

16.2

12.7

2/811982

18.9

16.5

6117/1974

26.5

0.2

4/29/1985

15.7

13.7

7/l/1974

26.5

0.4

1/22/1985

15.9

4.6

41211986

14.7

2.5

4127/1987

13.7

20.4

5/26/1987

13.6

5.8

11/2811966

34.1

2.9

5119/1969

31.6

2.5

9/15/2005

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 25 of 35

Exhibit C

Leader Wage (LW) Employees

1999-2001

Year-End Clock Number Grade/Step Annual Race

Department

Title

2000

562 LW-10/02 $38,084.80 Black (not of Hispanic origin) Water Services, Distribution Water Const Repair Wrkr Leader

2000

760 LW-10/02 $38,084.80 Black (not of Hispanic origin) Sewer Services, Repair

Sewer Constr Repairer Wrkr Ldr

2000

93 LW-09/03 $37,627.20 Black (not of Hispanic origin) Sewer Services, Repair

Sewer Constr Repairer Wrkr Ldr

2000

595 LW-09/03 $37,627.20 Black (not of Hispanic origin) Sewer Services, Inspection Sewer Services Worker Leader

2000 2000 2000 2000 2000 2001 2001 2001 2001 2001 2001 2001

746 LW-09/03 747 LW-09/03 1037 LW-09/02 547 LW-06/05 761 LW-06/05 125 LW-10/05 218 LW-10/05 705 LW-10/05 279 LW-10/04 290 LW-10/04 590 LW-10/04 616 LW-10/04

$37,627.20 Black (not of Hispanic origin) Sewer Services, Repair

Sewer Constr Repairer Wrkr Ldr

$37,627.20 Black (not of Hispanic origin) Sewer Services, Repair

Sewer Constr Repairer Wrkr Ldr

$36,171.20 Black (not of Hispanic origin) Sewer Services, Inspection Small Craft Operator Leader

$34,340.80 Black (not of Hispanic origin) Material Management

Materials Handler Leader

$34,340.80 Black (not of Hispanic origin) Material Management

Materials Handler Leader

$49,691.20 Black (not of Hispanic origin) Water Services, Distribution Water Services Worker Leader

$49,691.20 Black (not of Hispanic origin) Water Services, Distribution Water Services Worker Leader

$49,691.20 Black (not of Hispanic origin) Water Services, Distribution Water Const Repair Wrkr Leader

$47,923.20 Black (not of Hispanic origin) Water Services, Distribution Water Const Repair Wrkr Leader

$47,923.20 Black (not of Hispanic origin) Water Services, Distribution Water Const Repair Wrkr Leader

$47,923.20 Black (not of Hispanic origin) Water Services, Distribution Water Const Repair Wrkr Leader

$47,923.20 Black (not of Hispanic origin) Water Services, Distribution Water Const Repair Wrkr Leader

2001

2001 2001

·-

298 LW-09/05 359 LW-09/05 421 LW-09/05

$47,320.00 Black (not of Hispanic origin) Wastewater Treatment $47,320.00 Black (not of Hispanic origin) Wastewater Treatment $47,320.00 Black (not of Hispanic origin) Wastewater Treatment

WWT Plant Operator Leader WWT Plant Operator Leader WWT Plant Operator Leader

2001

531 LW-09/05 $47,320.00 Black (not of Hispanic origin) Sewer Services, Inspection Sewer Services Worker Leader

2001

555 LW-09/05 $47,320.00 Black (not of Hispanic origin) Sewer Services, Inspection Sewer Services Worker Leader

2001

586 LW-09/05 $47,320.00 White (not of Hispanic origin) Facilities, Mgmnt & Security Painter Leader

2001 :--ZOO I

728 LW-09/05 $47,320.00 Black (not of Hispanic origin) Sewer Services, Inspection Sewer Services Worker Leader 562 LW-10/03 $46,134.40 Black (not of Hispanic origin) Water Services, Distribution Water Const Repair Wrkr Leader

2001

293 LW-09/04 $45,614.40 Black (not of Hispanic origin) Sewer Services, Repair

Sewer Constr Repairer Wrkr Ldr

2001

666 LW-09/04 $45,614.40 Black (not of Hispanic origin) Sewer Services, Repair

Sewer Constr Repairer Wrkr Ldr

2001

736 LW-09/04 $45,614.40 Black (not of Hispanic origin) Sewer Services, Inspection Sewer Services Worker Leader

2001

164 LW-08/05 $45,219.20 Black (not of Hispanic origin) Water Services, Distribution Water Systems Repairer Leader

2001

93 LW-09/03 $43,929.60 Black (not of Hispanic origin) Sewer Services, Repair

Sewer Constr Repairer Wrkr Ldr

2001

595 LW-09/03 $43,929.60 Black (not of Hispanic origin) Sewer Services, Inspection Sewer Services Worker Leader

2001

746 LW-09/03 $43,929.60 Black (not of Hispanic origin) Sewer Services, Repair

Sewer Constr Repairer Wrkr Ldr

2001

747 LW-09/03 $43,929.60 Black (not of Hispanic origin) Sewer Services, Repair

Sewer Constr Repairer Wrkr Ldr

2001

826 LW-09/03 $43,929.60 Black (not of Hispanic origin) Sewer Services, Repair

Sewer Constr Repairer Wrkr Ldr

2001

760 LW-10/02 $42,244.80 Black (not of Hispanic origin) Sewer Services, Repair

Sewer Constr Repairer Wrkr Ldr

2001

1037 LW-09/02 $42,244.80 Black (not of Hispanic origin) Sewer Services, Inspection Small Craft Operator Leader

2001

547 LW-06/06 $40,518.40 Black (not of Hispanic origin) Material Management

Materials Handler Leader

2001

761 LW-06/05 $40,518.40 Black (not of Hispanic origin) Material Management

Materials Handler Leader

DC Hire Date WASA Tenure PreWASA

l/5/1987

14.0

6.9

9128/1987

13.3

7.4

1215/1966

34.1

7.4

1114/1985

16.0

3.2

7/18/1988

12.5

3.7

1Dn/1990

10.2

6.6

7/10/1995

5.5

24.9!

7/5/1988

12.5

21.4

9128/1987

13.3

1.7

11123/1967

34.1

0.0

3/6/1978

23.8

13.21

12129/1986

15.0

2.8;

2/8/1982

19.9

16.5

6/17/1974

27.5

0.2

12/1011984

17.1

3.1

4129/1985

16.7

13.7

1/23/1978

23.9

12.2

10/1/1977

24.2

8.3

10/10/1978

23.2

1.2

1122/1985

16.9

4.6

1/9/1984

18.0

13.8

ll/5/1984

17.2

12.7

412711987

14.7

20.4

1/5/1987

15.0

6.9

7/111974

27.5

0.4

4/211986

15.7

2.5

5/26/1987

14.6

5.8

5/19/1969

32.6

2.5

1215/1966

35.1

7.4

111411985

17.0

3.2

7/18/1988

13.5

3.7

lDn/1990

11.2

6.6

8/1/1988

13.4

0.8

9/28/1987

14.3

7.4

7/10/1995

6.5

24.9

7/5/1988

13.5

21.4

9/2811987

14.3

1.7

9/1512005

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 26 of 35
ExhibitD Analysis of WASA Annual Compensation
1999-2001

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 27 of 35

Year End
1999 1999
1999

Salary Schedule
DS
RW
sw

Total Number
of Employees
363 613
86

Number of White Employees
75 74 26

ExhibitD Analysis of WASA Annual Compensation
1999-2001

Number of Black Employees
288 539
60

Percentage of Black
Employees 79.34% 87.93% 69.77%

Race Differential (annual$)
$-638 $-327 $432

Number of Standard Deviations
-1.08 -2.22 0.53

Probt 28.31% 2.67% 59.91%

Si!mificance none
negative none

AdjRsq 98.57% 95.67% 80.71%

ProbF 0.00% 0.00% 0.00%

2000 DS
2000 Grade
2000 RW
2000 sw

327

70

257

78.59%

$-1,110

-1.95 5.38%

none

98.82% 0.00%

78

21

57

73.08%

$452

0.33 75.30%

none

99.73% 0.00%

577

65

512

88.73%

$-211

-1.43 15.34%

none

95.87% 0.00%

55

15

40

72.73%

$-960

-1.20 24.96%

none

87.62% 0.00%

2001 DS 2001 Grade 2001 RW

197

37

160

81.22%

$-1,086

-1.29 20.05%

none

96.11% 0.00%

238

61

177

74.37%

$-3,138

-2.46 1.80% negative 97.12% 0.00%

534

63

471

88.20%

$-264

-1.66 9.85%

none

96.10% 0.00%

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 28 of 35
ExhibitE Chow Test Results
1999-2001

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 29 of 35

Exhibit E

Analysis of WASA Annual Compensation

Chow Test 1999-2001

YearEnd

FValue

ProbF

1999

20.62

0.00%

2000

22.70

0.00%

2001

7.04

0.00%

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 30 of 35
ExhibitF Analysis of WASA Annual Compensation
RW in 1999 and Open Grades in 2001 By Grade Level

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 31 of 35

Year Salary

End Schedule Grade

1999 RW

03

1999 RW

OS

1999 RW

06

1999 RW

07

1999 RW

08

1999 RW

09

1999 RW

10

1999 RW

11

1999 RW

12

Total Number
of Employees
48 23 22 60 48 173 120 116 3

ExhibitF

Analysis of WASA Annual Compensation

RW in 1999 and Open Grades in 2001

Number of White Employees

Number of Black Employees

Percentage of Black
Employees

Race Differential (annual$)

Number of
Standard Deviations

0

48

100.0%

0

23

100.0%

0

22

100.0%

2

58

96.67%

$-718

-0.62

0

48

100.0%

28

145

83.82%

$-97

-0.43

24

96

80.00%

$-553

-1.92

18

98

84.48%

$-95

-0.32

2

1

33.33%

Probt
54.04% 66.91%
5.70% 74.75%

Significance
none none none none

AdjRsq 85.74% 76.02% 76.29% 56.64% 55.27% 65.54% 38.56% 44.48%

ProbF 0.00% 0.13% 0.03% 0.00% 0.00% 0.00% 0.00% 0.00%

2001 Grade 12

2001 Grade 13

2001 Grade 14

2001 Grade 15

2001 Grade 16

2001 Grade 17

2001 Grade

18

2001 Grade

19

2001 Grade 20

2001 Grade 21

8

0

8

100.0%

9

0

9

100.0%

20.08% 59.27%

14

0

14

100.0%

67

13

54

80.60%

$-920

-0.72 47.41%

none

54.70% 0.01%

52

10

42

80.77%

$-1,952

-0.52 61.03%

none

11.38% 33.17%

31

14

17

54.84%

$-7,109

-2.12 5.76% negative 65.02% 1.20%

39

14

25

64.10%

$-5,691

-2.58 3.24% negative 87.09% 0.12%

12

6

6

50.00%

4

2

2

50.00%

2

2

0

0.00%

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 32 of 35
Exhibit G Analysis of WASA Annual Compensation
RW in 1999 (excluding RW-07) Open Grades in 2001 (excluding Grade 17)

Year End 1999 2001

Salary Schedule RW Grade

Exhibit G

Analysis of WASA Annual Compensation

RW w/o RW·7 in 1999 and Open Grades w/o Open Grade 17 in 2001

Total Number of Employees
553 207

Number of White
Employees
72
47

Number of Black
Employees
481 160

Percentage of Black
Employees
86.98% 77.29%

Race Differential (annual$)
$-265 $-2,646

Number of Standard Deviations
-1.78
-1.91

Probt 7.58% 6.44%

Sienificance none none

AdiRsq 95.92% 97.46%

ProbF 1 0.00% 0.00%

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 33 of 35

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 34 of 35
ExhibitH Analysis of WASA Annual Compensation
1999-2001 Dependent Variable: log(Annual Compensation)

Case 1:01-cv-00561-HHK-AK Document 120-3 Filed 09/16/05 Page 35 of 35

Exhibit H

Analysis of WASA Annual Compensation

Dependent Variable-Natural Logarithm of Annual Salaries

RW w/o RW-7 in 1999 and Open Grades w/o Open Grade 17 in 2001

Year End
1999 2001

Salary Schedule RW Grade

Total Number
of Employees
553 207

Number Number

of White of Black

Employees Employees

72

481

_ 4 7 - 160

Percentage of Black Employees 86.98% 77.29%

Percentage Number

of Annual

of

$

Standard

Difference Deviations

-0.69%

-1.62

-4.64% - -1.63

Probt 10.61% 11.11%

Si2nificance none none

AdjRsq 96.57% 94.95%

ProbF 0.00% 0.00%

 
 Case 1:01-cv-00561-HHK -AK Document 198 Filed 04/22/10 Page 1 of 8

UNITED STATES DISTRICT COURT

DISTRICT OF COLUMBIA

________________________________

CHARLES TAYLOR, et al.

)

Plaintiffs,

)

v.

)

)

DISTRICT OF COLUMBIA

) Civil Action No. 01-00561 (HHK/AK)

WATER AND SEWER AUTHORITY, )

Defendant.

)

________________________________ )

MEMORANDUM ORDER Pending before this Court is Plaintiffs’ Motion to Compel, which includes [as a memorandum in support thereof] a Renewed Motion to Compel the Defendant to Fully Respond to the Plaintiffs’ Interrogatories and Requests for Production of Documents and Plaintiffs’ Motion, in the Alternative, to Preclude or Estop the Defendant from Using any Workforce Data in Opposition to the Plaintiffs’ Class Certification Motion Other than the Workforce Data the Defendant has produced in Response to the Plaintiffs’ Interrogatories and Requests for Production of Documents (“Motion to Compel”) [195] and Defendant District of Columbia Water and Sewer Authority’s (“WASA”) opposition to the Motion (“Opposition”) [197].1
Background On January 4, 2010, the trial court granted the parties’ Joint Motion for Further Enlargement of Discovery and Case Management Deadlines, thus setting a January 15, 2010 due date for non-expert discovery. (See 01/04/10 Order [184]) Plaintiffs’ expert designation was

1Plaintiff Charles Taylor is an individual Plaintiff and class representative on behalf of all Plaintiffs. The Court herein refers to Plaintiffs in the plural form. The title of Attachment A (supporting the Motion) indicates a request for alternative relief (preclusion of evidence in opposition to a class certification motion) but this alternative relief request is moot because the class certification issue has already been decided.

Case 1:01-cv-00561-HHK -AK Document 198 Filed 04/22/10 Page 2 of 8
also due by January 15, 2010 and their expert report was due by March 5, 2010. (01/04/10 Order [184]) On January 26, 2010, this case was referred by the trial court to the undersigned for consideration of all motions relating to discovery. (See Order of Referral [188].) On February 2, 2010, this Court granted in part and denied in part Plaintiffs’ [partial] Consent Motion for Extension of Time to Complete Discovery. (02/02/10 Minute Order.) Plaintiffs’ request for a 21 day extension of discovery was granted to the extent that the January 15, 2010 deadline for nonexpert discovery was extended up to and including February 5, 2010 for the limited purposes of: 1) allowing the parties to meet and confer regarding any discovery noticed or requested prior to January 15, 2010; and 2) permitting the Plaintiffs an opportunity to respond to Defendant's outstanding requests for production of documents. Non-expert discovery was not otherwise continued during the extension period.
On March 9, 2010, Plaintiffs, through counsel, filed a motion for a stay of discovery deadlines alleging that because they had not received certain documents sought through discovery, they were unable to comply with the March 5, 2010 expert report deadline.2 Plaintiffs accordingly requested that this Court “stay the discovery deadlines in this matter, nunc pro tunc to March 5, 2010, through March 15, 2010 for the Plaintiffs to file their motion to compel.” (Motion to Stay Discovery [191] at 2.) This Court granted in part and denied in part the Motion to Stay (03/15/10 Minute Order [192].)
On March 17, 2010, Plaintiffs filed the instant Motion to Compel [195], and on March
2Plaintiffs did not file their motion prior to the March 5, 2010 expert report deadline due to illness of counsel.
-2-

Case 1:01-cv-00561-HHK -AK Document 198 Filed 04/22/10 Page 3 of 8
26, 2010, Defendant WASA filed its Opposition [197].3 A review of the record in this case indicates that Plaintiffs’ Motion to Compel is a verbatim copy of an earlier Renewed Motion to Compel [67] filed in April 2004. Defendant WASA filed its opposition [81] in response to that motion [67] in May 2004, and Plaintiffs replied to the opposition in June 2004. (Reply attached to [85] Motion for Extension of Time to File Reply.) Plaintiffs’ Renewed Motion to Compel [67] was denied by the trial court in a March 9, 2005 Minute Order, nunc pro tunc September 24, 2004. On September 24, 2004, the trial court issued an Order [88] denying Plaintiffs’ motion to compel responses to interrogatories and requests for production of documents; re-open discovery; modify the discovery schedule; and extend and bifurcate discovery “except to the extent further discovery was authorized by th[e] [trial] court’s order docketed January 6, 2004.” (September 9, 2004 Order [88] at 1.) The trial court’s January 6, 2004 Order [50] ordered that
defendant WASA shall, to the extent it has not done so already, provide plaintiffs with (1) any electronic versions of spreadsheets (i.e., in Excel format) requested by plaintiffs, which they already obtained from defendant in paper form and (2) any other documents (e.g., the list of names and addresses of current WASA employees) not yet in plaintiffs’ possession which defendant purported to have already produced; . . .
(Order [50].) Accordingly, the trial court granted Plaintiffs some of the relief requested pursuant to their underlying motion to compel certain discovery responses, but on March 9, 2005, the trial court issued a Minute Order denying Plaintiffs’ Renewed Motion to Compel [67]. Plaintiffs now renew that Renewed Motion to Compel after the close of merits discovery. In renewing that Motion in its original [outdated] form (with the attachment of some new exhibits), Plaintiffs make no showing that the contested discovery requests discussed therein are relevant to and
3Plaintiffs requested a two-day extension of time in which to file their Motion to Compel prior to filing it on March 17, 2010.
-3-

Case 1:01-cv-00561-HHK -AK Document 198 Filed 04/22/10 Page 4 of 8
necessary for the preparation of their expert report. Nor do Plaintiffs provide any justification for revisiting the trial court’s prior rulings on such Renewed Motion to Compel.4
Information Relevant to Expert Report, as noted in Plaintiffs’ Motion to Stay Plaintiffs’ request for a stay of discovery deadlines until they had an opportunity to file a motion to compel was premised upon their assertion that “the Plaintiffs have not received important documents and data that they sought through merits and other discovery served on the Defendant, [and] they are not able to produce that expert report.” (Motion to Stay Discovery [191] at 1.) Plaintiffs particularly indicated that they needed “personnel files of the Defendant’s employees during the class period and certain unspecified “data.” (Motion to Stay [191] at 1-2.) Plaintiffs did not modify their Motion to Compel to explain what information their expert, Dr. Lanier, requires in order to prepare his expert report. Rather, they re-filed the same motion they filed several years ago when they were preparing for class certification [with a different expert] and they simply attached new exhibits thereto, including a Declaration by Dr. Lanier. Dr. Lanier’s Declaration notes without further explanation that he requests basic information “including but not limited to each employee’s age, level of education, exempt or non-exempt status, and actual W-2 compensation.” (Declaration ¶5.) Dr. Lanier also includes a list of files that need to be produced in a different format before he can use them. WASA explains its position on both of these issues in its Opposition to the Motion to Stay.
4WASA asserts that “Plaintiffs’ Motion to Compel is untimely because it has been filed after the close of merits discovery and raises alleged discovery deficiencies related to discovery responses that were provided to Plaintiffs at least four years ago.” (Opposition at 7.) WASA further contends that Plaintiffs have “not offered any facts to explain why [they have been] unable to conduct discovery within the ample time frame s set by this Court’s Scheduling Orders, despite the fact that class certification discovery began in November 2002 and non-expert merits discovery extended from March 2008 through January 2010.” (Id.)
-4-

Case 1:01-cv-00561-HHK -AK Document 198 Filed 04/22/10 Page 5 of 8
Personnel Files With regard to the personnel files, WASA acknowledges that “Plaintiff[s] [were] entitled to inspect personnel files during the two year merits discovery period [b]ut Plaintiff[s] simply did not make arrangements to do so, and [they] now request that the Court further delay this already long-overdue case to allow a three-week inspection that should have taken place months, if not years ago.” (Opposition at 1.)5 WASA asserts that it was not until January 13, 2010, two days before the close of merits discovery, that it received a letter indicating that its September 21, 2009 discovery responses were allegedly inadequate. (Opposition, Exh. H, January 13, 2010 letter from Plaintiffs’ counsel to Defendant’s counsel.) WASA responded by detailing its allegedly inadequate responses and providing a description of responsive documents. (Opposition, Exh. I, January 15, 2010 letter from WASA’s counsel to Plaintiffs’ counsel.) A Consent Motion to Extend Discovery for 21 days was filed on January 15, 2010, and granted in part by this Court to allow the parties until February 5, 2010 to meet and confer about document production disputes. WASA asserts that during a January 27, 2010 conference call, Plaintiffs’ counsel informed WASA that he could not find unique employee identification numbers in any of the documents produced by WASA to date, and in response thereto, WASA identified the responsive documents that contained that information, which had been produced four years ago, in March, 2006. (Opposition at 5; see Exh. J, January 30, 2010 electronic mail chain.) Plaintiff’s counsel further indicated that WASA had not produced personnel files for over 1,000 individuals
5Merits discovery began on March 5, 2008 and closed on January 15, 2010. (Opposition at 3.)
-5-

Case 1:01-cv-00561-HHK -AK Document 198 Filed 04/22/10 Page 6 of 8
employed by WASA during the class period and WASA notes that it “investigated the feasibility of such production.” (Opposition at 5.) On February 5, 2010, the parties held a conference to discuss WASA’s responses to Plaintiffs’ discovery requests. (Id.) At that time, WASA indicated that it would not produce the 1,000 complete personnel files, because it was too burdensome and Plaintiffs had the opportunity to inspect these files during merits discovery. Plaintiffs’ counsel requested another opportunity to inspect the files outside the discovery period. (Opposition, Exh. K, February 26, 2010 electronic mail chain.) On February 24, 2010, WASA informed Plaintiffs that it was “not in a position to accommodate Plaintiffs’ request for inspection of personnel files, as Plaintiffs failed to request this inspection during the discovery period after being repeatedly notified that the files were available for inspection.” (Opposition, Exh. K.)
WASA notes that Plaintiffs were allowed to inspect its personnel files on June 23, 2003 pursuant to a joint proposed discovery order. (Opposition, Exh. Q, Joint Status Report and Order.) The files were made available for inspection and copying from June 23, 2003 through July 8, 2003, and Plaintiffs’ counsel inspected them for one and one-half days before halting the inspection and declaring that it was too burdensome and a “document dump.” (Opposition at 9; see Exh. R, November 24, 2003 Status Hearing Transcript, pp 22-30.) During a November 24, 2003 status hearing, the trial court found that Plaintiffs’ pending motion to compel did not properly raise the personnel file issue and he also indicated that counsel should have raised this issue at the time of the inspection. (Opposition at 9; see Exh. R.) Plaintiffs’ Renewed Motion to Compel [67] was thereafter denied by the trial court in March 2005. (03/09/05 Minute Order.)
WASA asserts that the issue of production of personnel files was not raised again by Plaintiffs until the close of merits discovery when WASA’s counsel sent a January 15, 2010
-6-

Case 1:01-cv-00561-HHK -AK Document 198 Filed 04/22/10 Page 7 of 8
letter to Plaintiffs’ counsel, responding to allegations of discovery deficiencies and noting that Plaintiffs had the opportunity to request a review of personnel files during merits discovery but had not done so. (Opposition at 9; see Exh., I , January 15, 2010 letter from WASA’s counsel to Plaintiffs’ counsel.)
The issue of personnel files was initially addressed by the trial court during class certification discovery when Plaintiffs began and then disbanded their inspection of the files. The trial court subsequently denied Plaintiffs’ renewed request to compel this discovery. Plaintiffs have now raised this same issue at the close of merits discovery. While Plaintiffs have asserted that the personnel files are necessary in order for their expert to prepare his report, the Declaration of Dr. Lanier does not confirm this assertion. Accordingly, this Court finds that Plaintiffs’ request for personnel records is untimely and should be denied.
Data Files With respect to the data files, WASA indicates that Plaintiffs received electronic data files “over 4 years ago, [but] first raised the issue of obtaining some of these particular files in a different format on February 5, 2010, at which point Plaintiffs and Dr. Lanier (Plaintiffs’ new expert) agreed to provide a listing of the requested files.” (Opposition at 2.) Such listing was not provided until Plaintiffs filed their Motion to Compel on March 17, 2010, and attached to Dr. Lanier’s Declaration a listing of approximately 85 requested files. Defendant notes that, on March 26, 2010, WASA provided the listed files in the requested format to Plaintiffs’ counsel,
-7-

Case 1:01-cv-00561-HHK -AK Document 198 Filed 04/22/10 Page 8 of 8 and thus, with regard to this issue, Plaintiffs’ Motion to Compel is moot. (Opposition at 12.)
Wherefore, it is this 22nd day of April, 2010, hereby ORDERED that the Plaintiffs’ Motion to Compel the Defendant [195] is DENIED.
______________/s/___________________ ALAN KAY UNITED STATES MAGISTRATE JUDGE
-8-

 
 Taylor v. District of Columbia Water & Sewer Authority, 205 F.R.D. 43 (2002)

205 F.R.D. 43 United States District Court,
District of Columbia.
Charles TAYLOR, et al., Plaintiffs, v.
DISTRICT OF COLUMBIA WATER & SEWER AUTHORITY, Defendant.
No. CIV.A. 01-00561HHK. | Jan. 2, 2002.
Attorneys and Law Firms
*44 David A. Branch, Washington, DC, for plaintiff.
*45 Julia Perkins, Washington, DC, Mary E. Pivec, Greenberg Traurig, L.L.P., Washington, DC, for defendant.
Opinion
OPINION AND ORDER
KENNEDY, District Judge.
In this case Charles Taylor alleges that the District of Columbia Water and Sewer Authority (“WASA”) discriminated against him and other WASA African American employees in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and Section 1981 of the Civil Rights Act of 1871, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981 (“1991 Act”). In addition to his own claims, Taylor seeks to prosecute claims on behalf of a class of WASA African American employees. Before the court is WASA’s motion to dismiss Taylor’s class claims. WASA argues that because Taylor seeks compensatory damages and trial by jury in addition to injunctive relief, he cannot, as a matter of law, satisfy the requirements for class certification set forth in Federal Rule of Civil Procedure 23(b) ( “Rule 23(b)” or “23(b)”). Upon consideration of WASA’s motion, the opposition thereto, and the record of the case, the court concludes that the motion to dismiss should be denied.
I. FACTUAL BACKGROUND
Taylor seeks to prosecute this action on behalf of a plaintiff class consisting of all African American employees and applicants who sought and were denied positions or career ladder promotions at WASA from

October 1996 through December 2000. Taylor alleges that after WASA became an independent authority in 1996 and ceased to be bound by District of Columbia personnel regulations and civil service protections, it instituted an “at-will” employment system without uniform personnel policies. Taylor alleges that this system allows management to hire and promote candidates based on word of mouth and to manipulate candidates’ scores in favor of those handpicked in advance. As a result of this system, Taylor alleges, African American employees are denied the opportunity to advance to the same level and at the same rate as similarly situated white employees.
Specifically, Taylor claims that African American employees are hired at the lowest level of the career ladder and are required to serve as long as five years for career ladder promotions, while similarly situated white employees are hired at higher levels and regularly receive promotions in less than five years. Taylor also claims that equally qualified African American employees are often passed over for promotions in favor of white employees of the Washington Suburban Sanitation Commission and other outside agencies. In addition, Taylor alleges that African Americans encounter a “glass ceiling” at WASA: although they make up approximately seventy-five percent of the agency’s employees, they are “underrepresented” at higher pay grade levels.
With respect to his individual claims, Taylor asserts that he applied for several promotions during his tenure at WASA, but was passed over despite demonstrating the required qualifications. Taylor has been employed by WASA as a civil engineering technician for the past twelve years. The civil engineering career ladder ranges from grade DS-2 through grade DS-11; Taylor’s current grade is DS-8. Advancement to a higher grade within the series requires that the employee serve the required time in-grade, demonstrate the ability to perform at the next grade, and receive the recommendation of his or her supervisors. According to WASA, “ability” is determined by the employee’s supervisors, and includes dedication to the job, getting along well with co-workers and clients, and technical aptitude. Taylor alleges that in June 2000, his supervisor at the time, an African American male, wrote a letter recommending Taylor for a promotion to grade DS-9 on the basis that Taylor had demonstrated the above qualifications. Nonetheless, the Director of the Department of Engineering and Technical Services, a white male, denied Taylor the promotion.
Taylor filed a race discrimination charge with the Equal Employment Opportunity Commission (“EEOC”) on September 19, 2000, and filed the present action within ninety *46 days of receiving a right to sue letter from the EEOC.1
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Taylor v. District of Columbia Water & Sewer Authority, 205 F.R.D. 43 (2002)

1

The time within which Taylor is required to file a

motion for class certification was stayed pending the

court’s ruling on WASA’s motion to dismiss.

II. ANALYSIS
A. Statutory Background Taylor alleges disparate treatment and disparate impact claims under Title VII and requests declaratory and injunctive relief as to both claims. Taylor also requests compensatory damages and trial by jury on his disparate treatment claim as provided for under the 1991 Act. Before addressing whether Taylor’s disparate treatment claim qualifies for class certification under Rule 23(b), it is helpful to review the disparate treatment cause of action and the effect the 1991 Act had upon it.

1. Disparate Treatment [1] [2] [3] In his disparate treatment claim, Taylor alleges that WASA engaged in a “pattern or practice” of discriminating against African American employees. As explained by the Supreme Court in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) (“Teamsters”), the “pattern or practice” disparate treatment theory focuses on group-wide allegations of intentional discrimination.2 To establish a pattern or practice claim, the plaintiffs must prove that intentionally discriminatory practices were the defendant’s “standard operating procedure,” not merely sporadic or isolated occurrences. Id. at 336, 97 S.Ct. 1843.3

2

In disparate impact claims, in contrast, no showing that

the defendant acted with discriminatory intent is

necessary. See Griggs v. Duke Power Co., 401 U.S.

424, 432, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).

3

Individual disparate treatment claims, as opposed to

pattern or practice claims, focus on discriminatory acts

against a single individual and proceed under the

burden-shifting framework set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817,

36 L.Ed.2d 668 (1973).

[4] Suits alleging pattern or practice claims are typically divided into two phases, a liability phase and a damages phase. See id. at 360-62, 97 S.Ct. 1843; Berger v. Iron Workers Reinforced Rodmen, 170 F.3d 1111, 1124

(D.C.Cir.1999). In the first phase, the plaintiffs must establish through a common method of proof that the employer is liable to the class for the pattern or practice of discrimination. See Teamsters, 431 U.S. at 360, 97 S.Ct. 1843; Berger, 170 F.3d at 1124. This is usually done with a combination of statistical evidence regarding the defendant’s treatment of the class as a whole and anecdotal testimony from individual class members regarding specific acts of discrimination. See Teamsters, 431 U.S. at 336, 97 S.Ct. 1843; Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 158 (2nd Cir.2001).
[5] [6] [7] [8] If the plaintiffs succeed in establishing liability in the first phase, the court may order class-wide injunctive and declaratory relief. Teamsters, 431 U.S. at 336, 97 S.Ct. 1843. If the plaintiffs also seek individual monetary relief, they proceed to the second phase, called a “Teamsters hearing.” See Hartman v. Duffey, 88 F.3d 1232, 1235 n. 2 (D.C.Cir.1996). In a Teamsters hearing, each plaintiff enjoys the presumption that any adverse employment action taken against him or her by the defendant was due to the pattern or practice of discrimination established in the liability phase; therefore, the plaintiff’s burden at the damages phase is simply to show that such an adverse action took place. See Teamsters, 431 U.S. at 362, 97 S.Ct. 1843. The burden of persuasion then shifts to the defendant to show that there was a legitimate, non-discriminatory reason for the adverse action. See id., Hartman, 88 F.3d at 1234 n. 2. If the defendant fails to meet this burden, the plaintiff is entitled to individualized equitable relief such as back pay and front pay. To obtain compensatory damages, the plaintiff must also prove pain and suffering. See 42 U.S.C. § 1981a(b)(3).
2. The 1991 Act and Title VII Prior to the passage of the 1991 Act, injunctive and declaratory relief were the only *47 remedies available to litigants who successfully prosecuted either disparate treatment or disparate impact Title VII claims. Therefore, the only type of monetary relief available under Title VII was equitable relief in the form of back and front pay, and there was no right to a jury trial in any Title VII claim. See, e.g., Lehman v. Nakshian, 453 U.S. 156, 164, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981).
The legal landscape changed with the passage of the 1991 Act. The Act expanded the remedies available in disparate treatment claims, allowing for recovery of compensatory and punitive damages, see 42 U.S.C. § 1981a(a)(1), and providing a right to jury trial for claimants seeking such damages, see 42 U.S.C. § 1981a(c). Injunctive relief remains the only remedy available for those asserting disparate impact claims, however.

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Taylor v. District of Columbia Water & Sewer Authority, 205 F.R.D. 43 (2002)

B. Class Certification In order to obtain class certification, Taylor must demonstrate that the class meets all four prerequisites of Rule 23(a)4 and falls within at least one of the three categories of Rule 23(b). See, e.g., Hartman, 19 F.3d at 1468. WASA concedes that there are issues of fact that preclude disposing of any 23(a) issue at the present stage of this litigation. It bases its motion to dismiss solely on the grounds that a class cannot as a matter of law be certified under any subsection of 23(b). Because the parties focus their arguments on 23(b)(2)(“(b)(2)”) and 23(b)(3)(“(b)(3)”) and because we find that Taylor has adequately stated a claim for certification under both (b)(2) and (b)(3), there is no need to reach the issue of certification under (b)(1).

4

The four prerequisites of Rule 23(a) are: that the class

is so numerous as to make joinder impracticable; that

there are questions of law or fact common to the class;

that the claims or defenses of the representative parties

typify those of the class; and that the representative

parties will fairly and adequately protect the interests of

the class. Fed.R.Civ.P. 23(a).

WASA’s arguments against certification closely follow the rationale of the Fifth Circuit’s decision in Allison v. Citgo Petroleum, 151 F.3d 402 (5th Cir.1998). Very similar to the claims alleged in this case, the plaintiffs in Allison alleged disparate impact and disparate treatment race discrimination stemming from the defendant’s informal and subjective hiring and promotions practices. Likewise, there, as here, the plaintiffs sought injunctive relief and compensatory damages and sought a jury trial on their damages claim. 151 F.3d at 407-08. After analyzing the relationship between the certification requirements under 23(b) and the 1991 Act, The Fifth Circuit held that certification of such a claim was precluded as a matter of law.
While other circuits have explicitly addressed the ruling in Allison, this Circuit has yet to do so. It is therefore appropriate to analyze the rationale for Allison’s holding in light of this Circuit’s post-1991 case law regarding (b)(2), hybrid (b)(2)/(b)(3), and partial (b)(3) certification of Title VII claims.

that (b)(2) certification “does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” Fed.R.Civ.P. 23 (advisory committee notes) (emphasis added). The Notes also state that “cases in the civil rights field” are “illustrative” of the types of class actions suitable for certification under (b)(2). Id.; see Eubanks v. Billington, 110 F.3d 87, 92 (D.C.Cir.1997); Stewart v. Rubin, 948 F.Supp. 1077, 1089 (D.D.C.1996).
Focusing on the language from the first of these Notes, the Allison court laid down a rule for determining when money damages “predominate” such that (b)(2) certification is precluded. Monetary relief predominates, the court stated, unless it is “incidental” to the requested injunctive or declaratory relief. 151 F.3d at 415. The court defined incidental *48 monetary relief as that which flows “directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.” Id. (emphasis in original). The court further explained that incidental damages
should at least be capable of computation by means of objective standards and not dependent in any significant way on the intangible, subjective differences of each class member’s circumstances. Liability for incidental damages should not require additional hearings to resolve the disparate merits of each individual’s case ....
Id. The court took pains to include claims for back pay in this definition on the grounds that back pay constitutes an equitable remedy. Id. However, the court found that the compensatory damages made available to disparate treatment claimants by the 1991 Act fell squarely outside the incidental category. “[T]he very nature of [compensatory] damages, compensating plaintiffs for emotional and other intangible injuries, necessarily implicates the subjective differences of each plaintiff’s circumstances ....” Id. at 417. The court therefore held that the district court had not abused its discretion in finding that the class action at issue could not be certified under (b)(2).

1. 23(b)(2) and Compensatory Damages Rule 23(b)(2) permits class certification if “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2). While the rule itself is silent as to whether and to what extent monetary relief may also be sought, the Advisory Committee Notes on Rule 23 state

In contrast to the Fifth Circuit, the D.C. Circuit, the Second Circuit, and the Seventh Circuit have held in decisions postdating the 1991 Act that Title VII class actions seeking compensatory damages in addition to injunctive relief may be certified under various (b)(2) theories, including so-called “hybrid” certification in which a(b)(2) class is certified as to the claims for injunctive and declaratory relief and a(b)(3) class is certified as to the claims for monetary relief. See Thomas v. Albright, 139 F.3d 227 (D.C.Cir.1998) (race
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Taylor v. District of Columbia Water & Sewer Authority, 205 F.R.D. 43 (2002)

discrimination claim seeking $2.4 to $4 million in compensatory damages; certification under (b)(2) affirmed); Eubanks, 110 F.3d 87 (D.C.Cir.1997) (race discrimination claim seeking $8.5 million in compensatory damages; certification under (b)(2) affirmed); Robinson, 267 F.3d 147 (2nd Cir.2001) (race discrimination claim seeking unspecified compensatory damages; denial of class certification vacated and remanded for hybrid (b)(2)/(b)(3) and/or partial (b)(3) certification); Lemon v. Int’l Union of Operating Eng’rs, 216 F.3d 577 (7th Cir.2000) (race and gender discrimination claim seeking unspecified compensatory damages; certification under (b)(2) vacated but remanded for consideration of hybrid (b)(2)/(b)(3) certification).
Although WASA argues that the Seventh and Eleventh Circuits have “adopted Allison’s rationale” for rejecting (b)(2) certification of Title VII class actions seeking compensatory relief, this is true only in regards to traditional (b)(2) certification. The Seventh Circuit has held that hybrid (b)(2)/(b)(3) certification is permissible in such cases, see Lemon, 216 F.3d at 581-82; Jefferson v. Ingersoll Int’l, Inc., 195 F.3d 894, 899 (7th Cir.1999), as has at least one district court in the Eleventh Circuit, see Shores v. Publix Super Markets, Inc., 1996 WL 407850 (M.D.Fla.1996). In the only Eleventh Circuit Court of Appeals decision citing Allison on (b)(2), the court declined traditional (b)(2) certification without addressing hybrid certification and remanded for consideration of (b)(3) certification. Murray v. Auslander, 244 F.3d 807, 812-13 (11th Cir.2001). Thus, no other circuit has adopted Allison’s bright-line rule precluding all forms of (b)(2) certification in Title VII claims for injunctive relief and damages.5

5

The Eleventh Circuit also cited Allison in declining

(b)(3) certification in two non-Title VII discrimination

claims. See Rutstein v. Avis Rent-A-Car Systems, Inc.,

211 F.3d 1228 (11th Cir.2000) (discrimination in

contracts claim under 42 U.S.C. § 1981); Jackson v.

Motel 6 Multipurpose, Inc., 130 F.3d 999 (11th

Cir.1997) (discrimination in public accommodations

claim under Title II of the Civil Rights Act of 1964).

The law of the D.C. Circuit is most fully set forth in Eubanks v. Billington, a case alleging class claims similar to those in this case. Eubanks involved an appeal by two class members seeking to opt out of the (b)(2) class.6 The court began its analysis by *49 acknowledging that “the underlying premise of (b)(2) certification-that the class members suffer from a common injury that can be addressed by classwide relief-begins to break down when the class seeks to recover back pay or other forms of monetary damages to be allocated based on individual injuries.”7 Id., 110 F.3d at 95. This break down of cohesion, the court noted, raises the due process concerns underlying the notice and opt out requirements of

certification under (b)(3). See id. at 95; see also Robinson, 267 F.3d at 166.

6

WASA argues that Eubanks and Thomas do not govern

this case because they involved certification of

settlement classes. However, the class in Eubanks was

certified prior to settlement. See id., 110 F.3d at 89.

Moreover, as the court explained in Thomas, a

“settlement class” must still comply with all the

requirements of 23(a) and 23(b). See id., 139 F.3d at

234 (citing Amchem Prods., Inc. v. Windsor, 521 U.S.

591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). Thus,

cases certifying classes for settlement under 23(b) have

the same precedential value as other 23(b) cases.

7

Both WASA and the Allison court cite this passage, see

151 F.3d at 413, but their reliance on it is misplaced, as

Eubanks gave its approval to certification of Title VII

claims seeking both injunctive relief and compensatory

damages under the hybrid and partial approaches

discussed below, whereas Allison foreclosed

certification under any 23(b) subdivision for such

claims. Also, to the extent that Eubanks demonstrates

concern over individualized damages determinations,

its concern encompasses back pay, which the Allison

court summarily concluded did not interfere with (b)(2)

certification. See Allison, 151 F.3d at 415. “That back

pay is characterized as a form of ‘equitable relief’ in

Title VII cases does not undercut the fact that variations

in individual class members’ monetary claims may lead

to divergences of interest that make unitary

representation of a class problematic in the damages

phase.” Eubanks, 110 F.3d at 95.

[9] [10] The court found that these concerns did not prevent (b)(2) certification, however, because they could be addressed by allowing opt outs in (b)(2) actions under one of several approaches. See Eubanks, 110 F.3d at 96 n. 14.8 One approach is the “hybrid” certification described above, in which the class is certified under (b)(2) for liability and (b)(3) for damages, thus granting opt out and notice protections at the damages stage. See id. Another approach, known as “partial certification,” is to bifurcate the action into liability and damages phases and certify a(b)(3) class on liability only, postponing consideration of whether class certification is appropriate for the damages phase until plaintiffs have made it that far. See id.; see also Pigford v. Glickman, 182 F.R.D. 341, 351 (D.D.C.1998) (applying the partial certification approach and noting that “[i]f liability is found and the case reaches the remedy stage, the Court will have to determine the most appropriate mechanism for determining remedy. It is possible that at that point it would be appropriate to certify a class pursuant to Rule 23(b)(3).”).

8

See also Robinson, 267 F.3d at 166 (noting that

Allison’s bright-line prohibition on (b)(2) certification

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Taylor v. District of Columbia Water & Sewer Authority, 205 F.R.D. 43 (2002)

of class claims seeking both injunctive and compensatory relief “eliminates” the “due process risk,” but that this risk can just as easily be eliminated under hybrid (b)(2) approaches allowing opt outs.).
Both of these approaches were considered and rejected by the Allison court as a basis for certification. Although this court is bound by Eubanks and not by Allison, we will briefly examine the holdings in Allison regarding these hybrid (b)(3) claims because WASA bases its motion to dismiss upon them.

2. 23(b)(3) and Compensatory Damages The Allison court found that Title VII claims seeking compensatory relief could not be certified under either the hybrid (b)(2)/(b)(3) approach or the partial (b)(3) approach because the plaintiffs’ damages claims could not satisfy the requirements for certification under (b)(3). 151 F.3d at 420. Rule 23(b)(3) permits certification when “questions of law or fact predominate over any questions affecting only individual members, and the class action is superior to other methods for a fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3).9 In finding that the plaintiffs failed to satisfy the predominance prong, the Allison court simply reiterated its grounds for denying (b)(2) certification: plaintiffs’ claims for compensatory damages could be established “only through examination of each plaintiff’s individual circumstances. *50 Individual issues therefore predominate the litigation ....” 151 F.3d at 419. The same grounds were used to reject the superiority prong: “The predominance of individual-specific issues relating to the plaintiffs’ claims for compensatory damages in turn detracts from the superiority of the class action ....” Id.10

9

The factors to be considered under this test include: A)

the interests of the members of the class in individually

controlling prosecution or defense of separate actions;

B) the extent and nature of any litigation concerning the

controversy already commenced by or against members

of the class; C) concentrating the litigation of the

claims in a particular forum; D) the difficulties likely to

be encountered in management of a class action.

Fed.R.Civ.P. 23(b)(3).

10

We also note that the two cases the Allison court relied

upon in ruling against hybrid (b)(2)/(b)(3) class actions

are highly distinguishable on their facts from both

Allison and the present case. First, the court stated that

under its earlier decision in Castano v. American

Tobacco Co., 84 F.3d 734 (5th Cir.1996), (b)(3)

certification would “degenerate in practice into multiple

lawsuits separately tried.” Allison, 151 F.3d at 419

(citing Castano, 84 F.3d at 745 n. 19). The court failed

to note, however, that Castano was a mass torts action involving millions of class members and wide variations in state law, and therefore posed predominance and manageability problems not faced in Allison or the present case. The second case the court cited, Jackson v. Motel 6, 130 F.3d 999 (11th Cir.1997), was a discrimination in public accommodations claim brought under Title II of the Civil Rights Act of 1964 that involved discrimination at over 700 hotels nationwide. Because there was no statistical evidence upon which the plaintiffs could rely, the facts of each alleged incident of discrimination required examination simply to establish liability, see id. at 1006, an immense manageability challenge not present in Allison or this case.

The Allison plaintiffs’ compensatory damages claim was held to preclude partial certification under (b)(3) as well. See id. at 420-22. The court found that even though this approach would not actually certify the damages claim-the claim that the court found to stand in the way of (b)(2) certification-the mere fact that damages were requested made individual issues the focus of the action, defeating the (b)(3) predominance requirement. Thus, the court viewed partial certification as an attempt to “manufacture predominance” by progressively cutting away individual issues until the balance shifted towards common ones, a result the court found “could not have been intended” under Rule 23. Id. at 422. By virtue of their request for compensatory relief, therefore, plaintiffs were summarily disqualified from meeting the predominance requirement under (b)(2), the predominance requirement under (b)(3), and the superiority requirement under (b)(3), under either a hybrid or a partial certification theory.
As discussed above, this bright line rule is not consistent with D.C. Circuit case law, which emphasizes an ad-hoc approach and does not treat compensatory damages claims as per se incompatible with 23(b). In Eubanks, the circuit court found that district courts have ample discretion to implement hybrid certification under Rule 23(d)(5), which allows them to “make appropriate orders ... requiring for the protection of the members of the class or otherwise for the fair conduct of the action.” See id., 110 F.3d at 96; Fed.R.Civ.P. 23(d)(5). This rule is “broad enough to permit the court to allow ... (b)(2) opt-outs ... when necessary to facilitate the fair and efficient conduct of the litigation.”11 Rule 23 also provides authority for partial certification under 23(c)(4), which allows an action to be “maintained as a class action with respect to particular issues.” Fed.R.Civ.P. 23(c)(4)(A).

11

The Eubanks court held that the district court had not

abused its discretion in not granting opt outs to the two

appellants, because they failed to show that the

settlement was unfair as to their claims. See id., 110

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Taylor v. District of Columbia Water & Sewer Authority, 205 F.R.D. 43 (2002)

F.3d at 97-99.

In addition to alleviating due process concerns, the flexible approaches advocated by Eubanks reflect a more nuanced notion of predominance, both in its (b)(2) and (b)(3) incarnations, than the bright-line Allison approach.12 The Allison rule precludes certification of any action that includes a claim for compensatory damages, even if class-based injunctive relief is the “form of relief in which the plaintiffs are primarily interested.” Allison, 151 F.3d at 429 (Dennis, J., dissenting); see also Robinson, 267 F.3d at 163. As several courts in this jurisdiction have noted, the injunctive relief available in employment discrimination claims may have a far greater impact on both parties, financially and otherwise, *51 than even substantial compensatory relief. In Stewart v. Rubin, 948 F.Supp. 1077 (D.D.C.1996), the court certified plaintiffs’ Title VII race discrimination claim under (b)(2), finding that monetary relief did not predominate despite a settlement agreement providing $4 million in compensatory damages. The court found that “any one of the equitable remedies” provided in the settlement, including promotions and reinstatement, could be worth more than each plaintiff’s share of the compensatory damages award over his or her career. Id. at 1092. See also Pigford, 182 F.R.D. at 351. Just as compensatory damages do not automatically negate the finding that injunctive relief predominates in a(b)(2) class action, they do not automatically negate the finding that common issues predominate in a(b)(3) class action. See Lewis v. Nat’l Football League, 146 F.R.D. 5, 12 (D.D.C.1992).

12

The Second Circuit has also advocated a more

case-sensitive test for (b)(2) certification, requiring that

the district court find that “1) even in the absence of a

possible monetary recovery, reasonable plaintiffs would

bring the suit to obtain the injunctive or declaratory

relief sought; and 2) the injunctive or declaratory relief

sought would be reasonably necessary and appropriate

were the plaintiffs to succeed on the merits.” Robinson,

267 F.3d at 164.

3. 23(b)(3) and the Seventh Amendment Seventh Amendment concerns were also raised by the Allison court in its (b)(3) analysis. See Allison, 151 F.3d at 420-25. These concerns arise from the procedural impact of the 1991 Act on Teamsters bifurcation. Under Teamsters, hearings are held to determine individual damages after a class-wide liability phase. Because the 1991 Act allows jury trials in disparate treatment claims, however, both phases must now be tried to a jury. The Allison court thus foresaw that in a class of more than a thousand members-similar to the class size in this

case-multiple juries would be required for the damages phase. The court found that this posed manageability problems and made it likely that “successive juries would pass on issues decided by prior ones,” see id. at 420, thus running afoul of the Seventh Amendment’s Re-examination Clause, which provides that “no fact tried by a jury, shall be otherwise reexamined in any Court of the United States.” U.S. Const. amend. VII.
[11] As noted above, however, the D.C. Circuit has ruled that hybrid certification in Title VII class actions remains appropriate after the 1991 Act. See Thomas, 139 F.3d 227 (D.C.Cir.1998); Eubanks, 110 F.3d 87 (D.C.Cir.1997). Although the D.C. Circuit has not explicitly addressed the Seventh Amendment in so ruling, the majority of courts to do so have found that it does not present an obstacle to hybrid certification of Title VII claims. See, e.g., Robinson, 267 F.3d at 169 n. 13; EEOC v. Dial Corp., 156 F.Supp.2d 926 (N.D.Ill.2001); Butler v. Home Depot Inc., 1996 WL 421436 (N.D.Cal.1996) (noting that “courts have routinely adopted” bifurcation in disparate treatment class actions); EEOC. v. McDonnell Douglas Corp., 960 F.Supp. 203, 205 (E.D.Mo.1996) (noting that “ ‘pattern-or-practice’ claims are routinely bifurcated.”).13 These courts have rejected the argument-advanced by WASA in this case-that the fact that “overlapping proof” may be heard by separate liability and damages juries violates the Seventh Amendment, noting that the Re-examination Clause does not prohibit two juries from reviewing the same evidence, but only from deciding the same factual issues. See McDonnell Douglas, 960 F.Supp. at 205; Dial, 156 F.Supp.2d at 957.14

13

The district courts of the Eleventh Circuit form the

exception, adopting Allison ‘s holding on the Seventh

Amendment. See, e.g., Rink v. Cheminova, Inc., 203

F.R.D. 648, 671-72 (M.D.Fla.2001); Adler v. Wallace

Computer Servs., Inc., 202 F.R.D. 666, 673-74

(N.D.Ga.2001).

14

This view finds support in the Supreme Court’s

decision in Gasoline Prods. Co. v. Champlin Ref. Co.,

283 U.S. 494, 51 S.Ct. 513, 75 L.Ed. 1188 (1931), in

which the Court allowed a partial new trial on damages

before a separate jury, finding that damages and

liability were not “so interwoven ... that the former

cannot be submitted to the jury independently of the

latter without confusion and uncertainty.” Id. at 497-98,

51 S.Ct. 513.

[12] [13] [14] In a bifurcated disparate treatment claim, the only factual issue for the jury to decide in the liability stage is whether “unlawful discrimination was the employer’s regular procedure or policy.” McDonnell Douglas, 960 F.Supp. at 205 (citing Teamsters, 431 U.S. at 360, 97 S.Ct. 1843). Once this liability has been
6

Taylor v. District of Columbia Water & Sewer Authority, 205 F.R.D. 43 (2002)

established, it is conclusive and “does not dissipate at the remedial stage of the trial.” Teamsters, 431 U.S. at 361, 97 S.Ct. 1843. The sole factual issue, *52 then, at the damages phase is whether the adverse employment action suffered by each plaintiff was taken pursuant to the policy of unlawful discrimination. See Teamsters, 431 U.S. at 361-62, 97 S.Ct. 1843; McDonnell Douglas, 960 F.Supp. at 205. While evidence regarding individual adverse actions may enter at both stages, it is used to prove different issues in each stage: in the liability stage, it serves to illustrate a general policy of discrimination; in the damages phase, it demonstrates causation and harm with regards to a specific individual. See Allison, 151 F.3d at 433-34 (Dennis, J., dissenting); McDonnell Douglas, 960 F.Supp. at 205 (citing Sperling v. Hoffmann-La Roche, Inc., 924 F.Supp. 1346, 1353 (D.N.J.1996)). Thus, with adequate instructions to each jury regarding its role, reexamination of factual issues can be avoided. See Allison, 151 F.3d at 434 (Dennis, J., dissenting); Robinson, 267 F.3d at 169 n. 13; Dial, 156 F.Supp.2d at 957.15 The Seventh Amendment therefore does not bar (b)(3) certification of Title VII claims for compensatory relief.

15

Plaintiffs’ disparate impact claim can be tried together

with the disparate treatment claim as to liability.

However, because there are no compensatory damages

available for disparate impact-and therefore no right to

trial by jury-the judge must determine equitable relief

for this claim separately.

matter of law. Certification under (b)(2), (b)(3), or hybrid or partial approaches is available to Title VII claimants seeking compensatory relief and trial by jury. Taylor has stated a claim for certification under any of these theories by alleging that WASA engaged in discriminatory employment practices against African American employees and applicants. Specifically, he alleges that because of WASA’s informal word of mouth and back-door personnel practices, African Americans are hired at lower levels and required to serve longer for promotions than similarly situated whites, and are underrepresented at higher pay levels. Whether Taylor will obtain class certification depends upon further factual development of his claims, but cannot be decided as a matter of law prior to discovery and the filing of a motion for class certification. See, e.g., Miller v. Baltimore Gas & Elec. Co., 202 F.R.D. 195, 201 (D.Md.2001).
III. CONCLUSION
For the foregoing reasons, it is this 2nd day of January, 2002, hereby
ORDERED that defendant’s motion to dismiss is DENIED.

[15] [16] In sum, this court concludes that while compensatory damages claims and a request for a jury trial may be relevant considerations in deciding whether certification of a Title VII action under 23(b) is appropriate, neither factor precludes certification as a

Parallel Citations
82 Empl. Prac. Dec. P 41,079
	  

7

 
 Taylor v. District of Columbia Water & Sewer Authority, 241 F.R.D. 33 (2007)

241 F.R.D. 33 United States District Court,
District of Columbia.
Charles TAYLOR, et al., Plaintiffs, v.
DISTRICT OF COLUMBIA WATER & SEWER AUTHORITY, Defendant.
Civil Action 01–00561(HHK). | March 13, 2007.
Attorneys and Law Firms
*35 David A. Branch, Law Office of David A. Branch, Washington, DC, for Plaintiffs.
Grace E. Speights, Karen Ellen Gray, Morgan, Lewis & Bockius, LLP, Washington, DC, for Defendant.
Opinion
MEMORANDUM OPINION AND ORDER
KENNEDY, District Judge.
Charles Taylor, a Black employee of the District of Columbia Water and Sewer Authority (“WASA”), alleges that WASA has unlawfully discriminated against him and other Black employees at WASA in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.2000e et seq. (“Title VII”), and Section 1981 of the Civil Rights Act of 1871, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981 (“Section 1981”). Alleging that WASA has subjected its Black employees, including its new hires, from October 1996 through December 2000, to a pattern and practice of discrimination with respect to compensation and promotions, Taylor seeks certification of a class of more than 800 members, comprised of all Black employees who were not appropriately compensated or advanced. On behalf of a proposed class of 800 members, Taylor seeks compensatory damages, declaratory, injunctive and other equitable relief, as well as litigation expenses and attorneys’ fees. Upon consideration of Taylor’s amended motion for class certification [# 107], the opposition thereto, and the record of the case, the court concludes that the motion must be granted in part and denied in part.
I. BACKGROUND
In 1996, WASA, formerly a part of the District of

Columbia government, became an independent authority and no longer bound by D.C. personnel regulations and civil service protections.1 Taylor alleges that when *36 WASA became unconstrained by personnel regulations and measures that provided civil service protection, it instituted an employment system which vested supervisors with excessive discretion in making hiring, compensation, and promotion decisions. As a result, Taylor asserts that WASA’s Blacks employees encountered a “glass ceiling.” Second Am. Compl. at 3. Although they make up approximately 80 percent of the agency’s employees, they are underrepresented at higher pay grade levels and in supervisory positions. Taylor also contends that Black employees are hired at lower starting salaries than similarly situated White employees. Thus, Taylor contends that Black employees have been denied the opportunity to advance to the same level and at the same rate as similarly situated White employees.

1

WASA’s service area covers approximately 725 square

miles, including the District, Montgomery and Prince

George’s County in Maryland, Fairfax and Loudon

Counties in Virginia, and Vienna, Virginia.

Taylor, a civil engineering technician, asserts that he applied for several promotions from 1988 to 1996, but was passed over despite demonstrating the required qualifications. The civil engineering career ladder2 provides the opportunity for advancement from grade DS–2 to grade DS–11.3 Taylor was promoted from DS–6 to DS–8 in 1996 because of a labor agreement. In 2000, his direct supervisor, Londra Watson, who is Black, recommended him for a promotion to DS–9 because he had demonstrated the skill and ability to perform at the higher level and had spent the required time in his previous grade. Nonetheless, the Director of the Department of Engineering and Technical Services, Leonard Benson, a White male, denied Taylor the careerladder promotion. Taylor still has not been promoted since 1996, despite receiving job appraisals that are satisfactory or above.

2

A career-ladder position is one in which a union

employee is eligible for promotion to a certain specified

grade provided she receives satisfactory performance

appraisals, spends the required time in-grade, and

receives the recommendation of her superior.

3

Jobs within WASA are classified on a DS scale (similar

to the GS scale used by the federal government)

depending upon an employees’s level of expertise and

experience. A higher DS correlates to a higher salary.

1

Taylor v. District of Columbia Water & Sewer Authority, 241 F.R.D. 33 (2007)

II. ANALYSIS
[1] A party who moves for class certification bears the burden of establishing that all requirements for proceeding as a class action have been satisfied. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). A putative class representative must satisfy the four prerequisites of Rule 23(a): (1) that the class is so numerous that joinder of all members is impracticable; (2) that there are questions of law or fact common to the class; (3) that the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) that the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a). Although not an explicit requirement under Federal Rule of Civil Procedure 23, this court has recognized the “commonsense requirement” that a plaintiff also establish the existence of a class. Does I through III v. District of Columbia, 232 F.R.D. 18, 25 (D.D.C.2005). Finally, a putative class representative bears the burden of showing that the class falls within at least one of the three categories set forth in Rule 23(b).
[2] [3] Whether a class should be certified is a preliminary question, and disputes regarding the merits of a case or the weight of evidence are not proper considerations at the class-certification stage. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) ( “We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.”). 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.” Ibid. (internal quotation marks and citation omitted). A district court exercises broad discretion in deciding whether a party seeking *37 certification has carried her burden. Hartman v. Duffey, 19 F.3d 1459, 1471 (D.C.Cir.1994).

A. Rule 23(a) Requirements WASA contends that Taylor cannot satisfy any of the prerequisites of Rule 23(a): numerosity, commonality, typicality, and adequacy of representation. The court will consider each requirement in turn.4

4

WASA does not challenge the existence of a class.

While not designed to be a particularly stringent test,

plaintiffs must at least establish that the “general

outlines of the membership of the class are

determinable at the outset of the litigation.” 7A Wright, Miller & Kane, Federal Practice and Procedure § 1760 (3d. ed.2005). The court is satisfied that the contours of Taylor’s proposed class are sufficiently well defined as to render the proposed class sufficiently discrete and identifiable and to make management of the class administratively feasible.
1. Numerosity [4] Rule 23(a)(1) permits maintenance of a class action if “the class is so numerous that joinder of all members is impracticable.” There is no specific threshold that must be surpassed in order to satisfy the numerosity requirement; rather, the determination “requires examination of the specific facts of each case and imposes no absolute limitations.” Gen. Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 330, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980). That said, courts in this jurisdiction have observed that a class of at least forty members is sufficiently large to meet this requirement. See, e.g., Thomas v. Christopher, 169 F.R.D. 224, 237 (D.D.C.1996), aff’d in part and rev’d. in part, 139 F.3d 227 (D.C.Cir.1998).
[5] On its face, joinder of 800 plaintiffs is impracticable. Thus, the court concludes that a class containing 800 members is sufficiently numerous under Rule 23(a)(1). WASA’s only contention otherwise—that the class will shrink upon application of the commonality and typicality requirements—is unpersuasive, as explained below.
2. Commonality [6] Commonality requires that the plaintiff raise claims which rest on “questions of law or fact common to the class.” Fed.R.Civ.P. 23(a)(2). This rule does not require that “every issue of law or fact be the same for each class member.” Bynum v. District of Columbia, 217 F.R.D. 43, 46 (D.D.C.2003). Rather, “[t]he commonality test is met when there is at least one issue, the resolution of which will affect all or a significant number of the putative class members.” Coleman v. Pension Benefit Guar. Corp., 196 F.R.D. 193, 198 (D.D.C.2000) (internal quotation marks omitted). Because the commonality requirement may be satisfied by a single common issue, courts have noted that it is “often easily met.” In re Vitamins Antitrust Litig., 209 F.R.D. 251, 259 (D.D.C.2002). Additionally, proposed class actions seeking injunctive and declaratory relief, such as this one, “by their very nature” present common questions of law and fact. 7A Wright, Miller & Kane, Federal Practice and Procedure § 1763 (3d. ed.2005).
Taylor’s claim of unlawful discrimination is based on two different theories. A “disparate treatment” claim alleges
2

Taylor v. District of Columbia Water & Sewer Authority, 241 F.R.D. 33 (2007)

that the defendant intentionally based an employment decision on the race of the plaintiffs. Palmer v. Shultz, 815 F.2d 84, 90 (D.C.Cir.1987) (citing Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335–36, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)). Disparate treatment claims can involve an isolated incident of discrimination against a single individual, or, as in this case, allegations of a “pattern or practice” of discrimination affecting an entire class of individuals. Id. A “disparate impact” claim, on the other hand, alleges that the defendant based an employment decision on a criterion that although “facially neutral” nevertheless impermissibly disadvantaged individuals of one race more than the other. Id.
[7] [8] Although discrimination claims, by their nature, often allege treatment based on membership in a class, such an allegation is not sufficient for a court to determine that such treatment was likewise suffered by a class of similarly situated persons. Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157–58, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982); Love v. Johanns, 439 F.3d 723, 728 (D.C.Cir.2006). A plaintiff must “bridge th[e] gap” between *38 her own alleged discrimination and a “common policy” that affected the members of the putative class. Falcon, 457 U.S. at 158, 102 S.Ct. 2364.5 Plaintiffs alleging disparate treatment of a class must “show (i) discrimination (ii) against a particular group (iii) of which the plaintiff is a member, plus (iv) some additional factor that permits the court to infer that members of the class suffered from a common policy of discrimination.” Love, 439 F.3d at 728 (internal quotation marks and alteration omitted) (emphasis in original). Regarding a complaint of discriminatory impact, plaintiffs must make a showing “sufficient to permit the court to infer that members of the class experienced discrimination as a result of the disparate effect of a facially neutral policy.” Garcia v. Johanns, 444 F.3d 625, 632 (D.C.Cir.2006) (internal quotation marks omitted).

5

The requirement of a common policy applies to

intentional discrimination under both Title VII and

Section 1981. See Jett v. Dallas Independent School

Dist., 491 U.S. 701, 735–736, 109 S.Ct. 2702, 105

L.Ed.2d 598 (1989) (holding that plaintiff must show

“that the violation of his ‘right to make contracts’

protected by § 1981 was caused by a custom or policy”

of the municipal employer); Alexander v. City of

Milwaukee, 474 F.3d 437, 448 (7th Cir.2007)

(observing that § 1981 requires a plaintiff to establish

“an official policy or custom in order to allow for

municipal liability”) (citing Jett ).

[9] [10] A common discriminatory policy may be established by “[s]ignificant proof” that an employer’s hiring and promotion practices were accomplished by “entirely subjective decisionmaking processes.” McReynolds v. Sodexho Marriott Services, Inc., 208

F.R.D. 428, 439 (D.D.C.2002) (quoting Falcon, 457 U.S. at 159 n. 15, 102 S.Ct. 2364). It is well established that “the deliberate and routine use of excessive subjectivity is an employment practice that is susceptible to being infected by discriminatory animus.” Dukes v. Wal–Mart Stores, Inc., 222 F.R.D. 137, 149 (N.D.Cal.2004) (internal quotation marks omitted) (certifying class of 1.5 million women alleging sex discrimination), aff’d, 474 F.3d 1214 (9th Cir.2007). In proving a policy of excessive subjectivity, plaintiffs may rely on a combination of statistical and anecdotal evidence to support their assertions that unfettered discretion pervaded the company’s decisions regarding hiring and promotions which resulted in racial discrimination against the members of the class. See Valentino v. U.S. Postal Serv., 674 F.2d 56, 68 (D.C.Cir.1982) (“[C]lass action plaintiffs offer a combination of statistical proof and individual testimony of special instances of discrimination.”). Such proof would support both theories of disparate treatment and impact in a class action because both theories “are attacks on the systemic results of employment practices” and “proof of each claim will involve a showing of disparity between the minority and majority groups in an employer’s workforce.” Segar v. Smith, 738 F.2d 1249, 1267 (D.C.Cir.1984) (observing that there is “an important point of convergence” between disparate treatment and disparate impact claims in class actions).
[11] As explained below, Taylor has presented sufficient evidence to support his claim that there are significant factual and legal questions common to all class members with respect to the alleged discrimination against the putative class. Each category of evidence will be discussed below.
a. Factual Evidence
i. WASA’s Racial Make-up The majority of WASA’s workforce is Black. As of December 31, 2001, approximately 80 percent of the 1,046 employees listed on WASA’s employee roster were Black. Ex. G (Employee Roster, Dec. 31, 2001).6 Of the remaining employees, approximately 15 percent were White, less than 2 percent were Hispanic, and approximately 2 percent were Asian/Pacific Islander. The racial make-up of the various departments at WASA indicates that the Black employees were not evenly distributed.7 Several departments *39 or sub-departments were more than 90 percent Black, including: Buildings and Grounds; Customer Services (Meter Operations); Material Management; Sewer Services (Inspection, Pumping, or Repair); and Water Service (Distribution). WASA’s White employees were concentrated in four departments, which accounted for more than 75 percent of WASA’s White employees. While Engineering and Technical Services employed only 9 percent of WASA’s
3

Taylor v. District of Columbia Water & Sewer Authority, 241 F.R.D. 33 (2007)

workforce, it employed 25 percent of its White workers. Similarly, Wastewater Treatment employed 14 percent of the workforce, but 26 percent of WASA’s White workers; Maintenance Services (Electrical) employed 6 percent of WASA’s workforce but 13 percent of its White employees; Maintenance Services (Mechanical) employed 8 percent of WASA’s workforce but 13 percent of its White employees worked there.

6

All exhibits referred to herein are those submitted by

Taylor in support of his Amended Motion for Class

Certification, unless noted otherwise.

7

WASA is divided into departments, which include (1)

Engineering and Technical Services, (2) Wastewater

Treatment, (3) Water Services, (4) Sewer Services, (5)

General Counsel, (6) Human Resources, (7) Fleet

Management, (8) Facilities and Security, (9)

Occupational Health and Safety, (10) Procurement and

Material Management, (11) Finance and Budget, (12)

Information Technology, (13) Customer Service, (14)

Risk Management, (15) Public Affairs and (16) Internal

Audit. See Ex. E (WASA Web Site, General

Information); Ex. F (Departmental Summaries) at 4222.

Although Whites made up only 15 percent of WASA’s workforce, they were also disproportionately represented in management. For example, six of the eleven employees (or 54 percent) who report directly to Walter Bailey, Director of Wastewater Treatment, were White. Of the five remaining positions, one manager is a native of India; two managers were Black; and two other positions filled by Blacks (administrative manager and executive assistant) were primarily administrative and not managerial. Similarly, all of the branch chiefs who report to Taylor’s supervisor, Leonard Benson, the Director of Engineering and Technical Services, were White.

ii. WASA’s Promotion Policies An employee at WASA may be promoted in one of two ways: career-ladder promotions (which are only available to union members) and competitive promotions. A careerladder position is a union position in which an employee is eligible to be promoted up to a certain specified grade without having to compete for the promotions provided she receives satisfactory performance appraisals, spends the required time in-grade, and receives the recommendation and approval of her superiors. To obtain a career-ladder promotion, an employee must demonstrate to the satisfaction of management, starting with her supervisor, that she has mastered certain particular job kills, beyond those required in her current grade. According to WASA, “ability” is determined by the employee’s supervisors, and includes dedication to the

job, getting along well with co-workers and clients, and technical aptitude. An employee may not receive a careerladder promotion without the recommendation of her supervisor and the concurrence of the head of her department. An employee may not nominate herself for such a promotion.
With regard to competitive promotions, it was WASA’s policy that vacant positions were to be posted and an employee must submit an application. Applications were reviewed by the Department of Human Resources (“HR”), and all employees who met the position’s minimum qualifications were put on a list of those to be interviewed for the position. Prior to 2000, however, WASA did not routinely interview internal applicants. Ex. B (Walter Bailey Dep.) at 37:2–38:2. For those applicants who were interviewed, the hiring department drafted a list of questions which were reviewed by HR to ensure the questions were appropriate. The interviews were conducted by a panel of three to five people, usually consisting of employees at the next level above the vacant position, who were chosen by HR. At the interviews, the applicants were asked the same questions, and panelists scored them on a scale of one to five, as well as their answers to each question, after discussing the applicants. HR collected the score sheets and turned the scores into a ranking. The panel then recommended one candidate to be hired, and forwarded that recommendation to HR. In preparation for this process, WASA briefed the panelists about what questions would be inappropriate or illegal but provided no other training on how to conduct the interviews or score the candidates. WASA *40 had never conducted a study to determine whether or not its hiring, promotion or compensation processes were equitable, nor whether the career-ladder promotion system functioned equitably.
iii. Compensation Policies With regard to compensation policies, WASA had wide discretion to set the salaries of both its union and nonunion workers. For union workers, management had the discretion to hire a union employee at a grade above the minimum grade in that career ladder, which would result in a higher starting salary. Pay increases for union workers were dependent on their advancement within their career-ladder or to another position. For non-union workers, compensation was based on a competitive “open-range,” meaning that WASA could hire an employee at any salary between the minimum and maximum range for the position, and, in some circumstances, at a salary higher than that range. Ex. C. (Barbara Grier Dep.) at 38:13–22; Ex. I (WASA Personnel Policy and Procedure) at 215–16. Salary increases or lump-sum bonuses for non-union workers were based on “performance” as defined by the employee’s supervisor. Ex. I at 216–18. Like union
4

Taylor v. District of Columbia Water & Sewer Authority, 241 F.R.D. 33 (2007)

workers, non-union workers could also receive a raise through a promotion to a higher grade or new position.
In her deposition, Barbara Grier, head of human resources, explained that “there is general acknowledgment” that the grade compensation system for union employees was “broken.” Ex. C (Grier Dep.) at 66:11–12. For example, one employee might be in a position that was designated as having no advancement potential, and another employee doing the same job would be in a position that had the potential for careerladder promotions to four grades higher. She indicated that the problems were being addressed through collective bargaining in late 2000 and 2001.8 Despite these acknowledgments, WASA has never undertaken an independent study of its compensation system to determine whether it results in discrimination.

8

WASA notes that in late 2000 and 2001, it began to

eliminate automatic step increases and to implement

performance based increases. To the extent that such a

policy change affected the class period which Taylor

seeks to certify, such a limitation on the class period, or

on damages, should be addressed later upon greater

factual development of the impact of this change.

b. Anecdotal Evidence Taylor points to the following anecdotal evidence of racially discriminatory patterns and practices at WASA:
• In addition to his personal experiences, Taylor observed White employees in the Department of Engineering and Technical Services (“DETS”) who were frequently promoted over Blacks who were more experienced and qualified. Ex. J (Taylor Decl.) at 3. He also observed that White employees in career-ladder positions were promoted without having to serve the required time in their present grade, while Black employees were required to spend five years or more in grade before receiving a career-ladder promotion. He noted that White workers were generally hired at higher grades than Black employees, often after working at the Washington Suburban Sanitary Commission.
• George Ginwright, a Black surveying aide with a bachelor’s degree in civil engineering, asserts that he was “stuck” at DS–9 for thirteen years before promotion. Ex. L (Ginwright Decl.) at 1. He contends that in 1996, he applied for several DS–12 positions and he was recommended by his supervisor and determined to be qualified by HR, but two White supervisors rejected his applications. He also asserts that he subsequently applied for two supervisory openings in DETS which were given to two White

employees without college degrees. Ginwright also alleges he observed other discriminatory hiring practices: that White employees from the Washington Suburban Sanitation Commission were hired as managers to replace Blacks even though they had fewer qualifications; that DETS would not promote Blacks to full DS–11, even though they were on a career ladder to that grade; and that Whites would receive greater *41 advancement or pay even when doing the same job as similarly situated Blacks.
• Clarence Stith, a Black civil engineering technician, contends that he waited seven years to be promoted to a full GS–4 in 1996, which only occurred as a result of a union grievance, and then waited another four years to be promoted to GS–5, despite the fact that he was in a career ladder position which progresses to GS–11 and he always had satisfactory performance appraisals. Ex. O (Stith Decl.) at 1–2.
• Philip Browne, a Black supervisory environmental engineer and division chief in Solids Processing, explained that he was “bumped” from his position in 1991 due to a reduction in force and was never notified of his right to reclaim the job once it became vacant again. Ex. Q (Browne Aff.) at 1.9 In 1998, when he applied for the same position as supervisory environmental engineer which he had already held, he was rejected by Bailey in favor of a White male.

9

This and other affidavits submitted by Taylor were

originally obtained in the matter of El–Amin v. WASA, a

2002 case in which the court found that a Black chemist

at WASA had raised a sufficient showing of race

discrimination against El–Amin to deny WASA

summary judgment. No. 00–2956 (D.D.C. Aug. 7,

2002) (granting in part and denying in part WASA’s

motion for summary judgment). The parties in that

matter eventually settled.

• Betty Williams, a Black operator in Thickening and Digestion from 1987 to 2000, observed two White employees being given training opportunities that resulted in promotions. When she inquired of Bailey about how she could volunteer for such training opportunities, she was told they “did not exist.” Ex. R (Williams Aff.) at 2. In 1998 or 1999, Williams requested Bailey assign her to light duty while she recovered from foot surgery, but he rejected her request. A White male recovering from a hernia, however, was assigned to lighter duty.
• Eugene Scott, a Black foreman who retired in 2001, stated that in 1993, Bailey installed a White supervisor over all “dewatering
5

Taylor v. District of Columbia Water & Sewer Authority, 241 F.R.D. 33 (2007)

operations” without permitting others to compete for the position. Ex. R (Scott Aff.) at 2. In 1997, Bailey assigned the same White supervisor to the position of “acting chief” of the Dewatering Branch, as well as appointing another White employee, without a competitive hiring process.10

10

Some of the anecdotal evidence presented by Taylor

occurred before 1996, the first year covered by the

putative class, which the court may consider under the

continuing violation theory. A plaintiff may present

evidence of a discriminatory policy that began prior to

the alleged acts for which she seeks to recover, as long

as the unlawful acts themselves fall within the

appropriate limitations period. See Bazemore v. Friday,

478 U.S. 385, 395–96, 106 S.Ct. 3000, 92 L.Ed.2d 315

(1986) (Brennan, J., concurring, joined by all Justices)

(“Each week’s paycheck that delivers less to a black

than to a similarly situated white is a wrong actionable

under Title VII, regardless of the fact that this pattern

was begun prior to the effective date of Title VII.”);

Shea v. Rice, 409 F.3d 448, 452–53 (D.C.Cir.2005)

(applying Bazemore to conclude that evidence of

discrimination prior to the limitations period may be

presented).

The court will not consider, however, evidence of

this pattern and practice that post-dates the years of

his putative class. See Ex. Q (Waller Decl.) at 1–2

(asserting that in 2004, Sharon Waller was required

to take ten exams to qualify for an office position

while the White employee, who had less experience,

received the job after taking four tests;) Ex. O (Stith

Decl.) at 2 (asserting that in 2004, when Stith’s

supervisor requested that he be promoted, Benson

“laughed at her” and denied the request; the

supervisor resigned the following day). Such

allegations do not illuminate the allegations of

unlawful discrimination during the putative class

period.

of class-wide discrimination through the use of statistical analysis.” Dukes, 474 F.3d at 1228; see also Caridad v. Metro–North Commuter R.R., 191 F.3d 283, 292 (2d Cir.1999).

i. Plaintiff’s Report In support of his motion, Taylor presents the expert report of Alexander Vekker, Ph.D., who concludes that there is statistical evidence of class-wide discrepancies likely attributable to racial discrimination at WASA. Vekker performed a regression analyses that *42 measured the compensation differences for Blacks with the same job tenure and same job title as White counterparts at WASA. Ex. A (Vekker Report, Jan. 21, 2005) at 1.11 Overall, Vekker determined that in 1999 and 2000, Black employees received significantly lower levels of compensation than White employees with the same tenure and job title. He was unable to reach any conclusions regarding WASA’s selection of employees for promotions because he was not provided sufficient data.

11

Generally speaking, a regression analysis is designed to

isolate the extent to which an independent variable

(such as race) has influenced dependent variables (such

as compensation and promotion). McReynolds v.

Sodexho Marriott Services, Inc., 349 F.Supp.2d 1, 22,

n. 23 (D.D.C.2004). If such an analysis includes

enough nondiscriminatory independent variables (such

as experience, performance, etc.) then it will indicate

whether the chances that the results are random or

whether they are attributable to race. Id.

In his report, Vekker included the following summary of his findings:

	  

c. Statistical Evidence Commonality may be established “by raising an inference

	  	  

Estimated	  Percentage	  Wage	  

	  

	  	  

	  

	  	  

Difference	  for	  African	  

	  

	  	  

	  

Year	  

American	  Employees	  

	  	  

	  	  

	  

	  

1999	  

–4.6%	  

	  	  

	  	  

	  

	  

	  	   	  
Standard	   	  	   	  
Deviations	   	  	   	  
4.82	   	  	   	  
6

Taylor v. District of Columbia Water & Sewer Authority, 241 F.R.D. 33 (2007)

2000	   	  	   	  

–5.6%	   	  	   	  

5.87	   	  	   	  

Vekker concluded that, after controlling for job title and tenure, Black employees earned on average 4.6 percent less than Whites with the same tenure and same job in 1999. The disparity grew in 2000 to 5.6 percent.12 The standard deviation for 1999, for example, was 4.82, which is well in excess of what scientists and courts consider to be statistically significant. Vekker Rep. at 5. A standard deviation of 4.82 indicates that the possibility that these racially differentiated results are a result of something other than race is less than seven in 100,000. Ibid. Thus, Vekker concluded, the wage disparity at WASA is caused by race. Ibid.

12

Vekker also included results for 2001, which the court

has not consider as they fell outside the time frame

relevant for which class certification is sought.

Vekker also concluded that there were racial disparities in initial, or base, salaries due to race, but that they were statistically insignificant. After adjusting for differences in qualifications at the time of hiring (i.e., experience and job title), the results showed that Black employees’ initial salaries were 2.8 percent lower than Whites hired in the same year into the same job title. The standard deviation, however, was only 0.99, which is not statistically significant. Id. at 6.
Vekker based his analysis on data provided by WASA, which included (1) active employees’ job and compensation history; (2) employee rosters by department at the end of each year from 1999 to 2002; and (3) inactive employees’ job and compensation history. In his analysis, Vekker did not include formal education of employees, the pay grade of particular employees, nor any indication of which employees were on career ladders, as such information was not provided to him by WASA even though it was requested. See Vekker Rep. at 6; Pls. Reply at 24–25. He indicated that his conclusions were preliminary and might be affected by receipt of additional data. Vekker Rep. at 7.

ii. Defendant’s Report In response to the Vekker report, WASA submits the expert report of Paul F. White, Ph.D., in which he separately conducted a regression analysis of salary disparities on each department rather than on WASA’s workforce as a whole, as Vekker had done. White concludes that two of ten categories of Black employees

had disparities which were statistically significant: (1) Regular Wage (“RW”) in 1999 earned on average $327 less annually, a standard deviation of 2.22; and (2) Open Grade (non-union) employees in 2001 earned on average $3,138 less annually, a standard deviation of 2.46. Def.’s Opp’n, Ex. D (White Report of Sept. 15, 2005) at 6.13 Otherwise, White asserts that a department-level analysis reveals that there is no widespread pay disparity at WASA.

13

White only provided a dollar amount, but not a

percentage, for the disparities in pay revealed by his

analysis.

*43 iii. Statistical Analysis WASA does not dispute the accuracy of the Vekker Report but rather contends it should be discounted because of alleged methodological flaws: The absence of key variables, improper aggregation of the data, and the failure to conduct a so-called “Chow” test. WASA’s contentions regarding Taylor’s statistical analysis are not persuasive.
While the omission of variables from a regression analysis “may render the analysis less probative than it otherwise might be, it can hardly be said, absent some other infirmity, that an analysis which accounts for the major factors must be considered unacceptable as evidence of discrimination.” Bazemore, 478 U.S. at 400, 106 S.Ct. 3000 (Brennan, J., concurring, joined by all Justices) (citations and quotation marks omitted). This principle does not require acceptance of regressions “from which clearly major variables have been omitted—such as education and prior work experience.” Koger v. Reno, 98 F.3d 631, 637 (D.C.Cir.1996). But a defendant “cannot undermine a regression analysis simply by pointing to variables not taken into account that might conceivably” have affected the analysis. Id. “[I]n most cases a defendant cannot rebut statistical evidence by mere conjectures or assertions, without introducing evidence to support the contention that the missing factor can explain the disparities as a product of a legitimate, nondiscriminatory selection criterion.” Palmer, 815 F.2d at 101.
WASA first contends that Vekker’s analysis is flawed because he fails to include prior work experience. As prior work experience was not provided to either expert,
7

Taylor v. District of Columbia Water & Sewer Authority, 241 F.R.D. 33 (2007)

White estimates prior experience by using a “proxy”: an employee’s tenure at WASA minus 18 years. White Rep. at 4. WASA has failed to show, however, how White’s estimate of prior experience reveals a nondiscriminatory reason why Vekker found pay disparities. White indicates that he included the estimate of prior experience because he found “multiple instances of employees at higher levels of the pay grades with relatively fewer years at WASA.” Id. The allegations in this case, however, indicate that White employees with less education or experience were promoted over more qualified Black employees. White’s finding that employees with high pay had little experience at WASA could just as easily be explained by discrimination in hiring and promotion. Thus, WASA has failed to show how a failure to include this estimated factor requires that the court reject the conclusions of the Vekker Report.
WASA also contends that it was inappropriate to aggregate employees in different pay grades, and that Vekker should have performed a so-called “Chow test” prior to aggregating the data across various pay plans. A “Chow test” (so named after the statistician who created it) is utilized to analyze whether it is appropriate to aggregate two or more sets of data into a single sample in a statistical model. See Dukes, 222 F.R.D. at 157. The result of a Chow test might indicate that the data should be disaggregated—that is, that separate regression analyses be run for distinct years, regions or pay plans, for example. WASA’s contention regarding Vekker’s aggregation of the data is neither supported by authority nor the circumstances presented here. Id. (concluding that Chow test is not required at class certification stage where plaintiff class presents data aggregated over regional level). Moreover, in cases alleging discrimination in promotion, the inclusion of grade variables would be “inappropriate” because an employee’s grade may itself reflect previous discrimination. Valentino, 674 F.2d at 72 n. 30 (observing that, in cases alleging of inconsistent and biased promotion criteria, “there is no assurance that level or rank is an appropriate explanatory variable, untainted by discrimination”). And in light of the fact that the majority of Black workers are concentrated in the RW pay plan which, as shown by White’s own analysis, indicate a pay disparity between Blacks and Whites, the aggregation did not improperly create an inference that would not otherwise exist.
More significantly, such “statistical dueling” is irrelevant to the certification determination. See Caridad, 191 F.3d at 292 (observing that the defendant’s critique of the plaintiffs’ evidence “may prove fatal at the merits stage, the Class Plaintiffs need not *44 demonstrate at this stage that they will prevail on the merits.”). The only relevant question at this stage is whether Taylor has put forth evidence that is sufficient to raise an inference of discrimination to create a common question regarding discrimination in pay at WASA. See id. The court

concludes that Taylor has met this burden. Even setting aside Vekker’s conclusions, WASA’s own analysis supports an inference of disparities likely attributable to race. White concludes that employees in the RW salary schedule in 1999 earned on average $327 less annually, with a probability that it was caused by something other than race of 3 percent (or a standard deviation of 2.22). A standard deviation of 1.96 or higher indicates a “level of statistical significance [that] is sufficient to establish a prima facie case of both disparate treatment and disparate impact.” Anderson v. Zubieta, 180 F.3d 329, 340 (D.C.Cir.1999). The RW salary schedule accounts for 539 Black employees at WASA in 1999, or approximately 51 percent of the workforce at WASA included in White’s analysis, and 60 percent of the Black workforce. White Rep. at 6. Given that so many Black employees are concentrated in the area that White concludes had a wage disparity strongly correlating to race, these statistics raise the inference of a common policy that results in racially inequitable pay.
Furthermore, although neither expert reached any conclusions regarding discrimination in promotions, the results of their analyses also support such an inference of discrimination. An employee’s compensation is largely dependent on (1) receipt of a career-ladder or competitive promotion; and/or (2) approval of salary increases, and compensation is an indirect result of such decisions. Thus, a racial disparity in compensation raises the inference of a discrimination in the promotion decisionmaking process.
d. Conclusion Overall, Taylor has put forth evidence supporting the inference that WASA’s policies and procedures are sufficiently subjective and susceptible to racial discrimination to satisfy the commonality requirement. WASA’s promotion policies and practices are governed by minimal objective criteria or central guidelines, and as such vest excessive discretion in the hands of mostly White supervisors. A career-ladder employee’s chance at promotion rests entirely in the hands of her immediate supervisor or that person’s supervisor, and those supervisors are given little guidance and oversight when it comes to making such determinations. An employee’s chances at competitive promotion also rest entirely in the hands of her supervisors and the interviewing panel who are given no guidance or training as to how to interview, rank, and select appropriate candidates. Indeed, WASA even acknowledged that prior to 2000, internal candidates were not even routinely interviewed for competitive positions. Moreover, there is evidence that certain jobs were not posted nor filled through the regular or competitive hiring process, increasing the chance for subjectivity to influence such decisions. The discretion and subjectivity in the promotional process is compounded by the fact that there is no monitoring nor
8

Taylor v. District of Columbia Water & Sewer Authority, 241 F.R.D. 33 (2007)

systematic review by upper-level management to ensure that ground-level decisions are not being based on impermissible criteria.
Taylor has also brought forth evidence raising the inference that such policies have resulted in a disproportionate concentration of Black employees in lower-ranking and lower-paying jobs, and that Blacks wait longer to obtain promotions. Taken together, this evidence sufficiently raises the inference that WASA’s allegedly discriminatory policies and practices affect all plaintiffs in a common manner, which satisfies the commonality requirement of Rule 23(a)(2).14

14

Because Vekker finds no significant racial disparity in

starting salaries, however, the court concludes that

claims based on discrimination in initial pay must be

excluded.

3. Typicality [12] Typicality requires that the claims of the representative be typical of those of the class. Fed.R.Civ.P. 23(a)(3). The typicality requirement and the commonality requirement “tend to merge” because both serve as “guideposts” as to whether a particular class action is practical and whether the claims of *45 the plaintiff and class are sufficiently interrelated to protect the class members in their absence. Falcon, 457 U.S. at 157 n. 13, 102 S.Ct. 2364.
WASA’s contention that Taylor’s claim is not sufficiently typical rests primarily on its argument regarding commonality which, as discussed above, this court rejects. For example, WASA contends that Taylor’s claim is not typical because “his own expert ... could not demonstrate any statistical significance in the promotion rates” for Black and White employees. Def.’s Opp’n at 21. In fact, it was not that Vekker failed to find promotion disparities but that he was “not able to conduct a meaningful analysis of promotions since [he] did not have any information” on pay grade or career-ladders in the data that WASA provided him. Vekker Report at 6. WASA also contends that Taylor cannot represent the class because he has not served in all of the positions included in the class. There is no requirement, however, that a class representative have served in each job category that he seeks to represent; such a requirement would always defeat class certification. See Hartman, 19 F.3d at 1471 (concluding that unsuccessful applicant may represent other applicants for different jobs where the class is challenging similar discriminatory practices). While the court may later determine to separate plaintiffs into different sub-classes based on the distinctions between career-ladder and competitive positions, for example, “it would not be

necessary to the validity of the class certification to do so.” Id.
[13] Taylor claims that he was denied a promotion, and thus an increase in compensation, based on the discriminatory practices and unchecked discretion that permeate such decisions at WASA. His claim is typical of the claims he seeks to advance on behalf of the class, and thus meets the requirement of Rule 23(a)(3).
4. Adequacy [14] The fourth and final requirement of Rule 23(a) requires that the court determine whether the proposed representatives can adequately represent the interests of the class. In making this determination, the court must be assured that (1) the proposed representative does not have any conflicts of interest with other class members; and (2) that the representative will vigorously prosecute the interests of the class through qualified counsel. McReynolds, 208 F.R.D. at 446. WASA contends that Taylor is not an adequate representative because (1) nonsupervisors cannot represent a class containing supervisors; (2) Taylor is not a suitable representative because he lost an arbitration on his claim; and (3) that counsel is not qualified.
[15] First, WASA contends that the D.C. Circuit’s holding in Wagner v. Taylor forecloses the possibility that a nonsupervisor can represent a class containing supervisors. See 836 F.2d 578, 595 (D.C.Cir.1987). The Wagner court, in actuality, held the opposite—that supervisors could not adequately serve as representatives of non-supervisors in the circumstances of that case. Id. The court reasoned that supervisors could not be adequate representatives where they were responsible for evaluating the performances of other members of the class, and where supervisors were accused of discrimination. Id. Here, in contrast, Taylor is not a supervisor who reviews any other members’ work and there is no evidence that he nor any members of the putative class are themselves accused of discrimination. See McReynolds, 208 F.R.D. at 447 (concluding Wagner did not prevent certifying mixed class where representatives were not supervisors and complaint did not allege discriminatory conduct against other potential class members). Moreover, the potential that an eventual award of injunctive relief might apply “against a few supervisory members of the class—who most likely did not exert significant influence over departmental policymaking—is fairly characterized as de minimis relative to the value of such an injunction in protecting those same supervisors from epidemic discrimination.” Id. at 448 (internal quotation marks omitted).
[16] [17] WASA also contends that Taylor is inadequate because his promotion claim was resolved against him in a union arbitration in 2002. It is well-settled, however,
9

Taylor v. District of Columbia Water & Sewer Authority, 241 F.R.D. 33 (2007)

that *46 “the named plaintiff need not demonstrate a probability of success on the merits” in order to serve as the class representative. 2 Newberg & Conte on Class Actions § 3:29 (4th ed.2002); see also Eisen, 417 U.S. at 178, 94 S.Ct. 2140 (“[T]he question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits.” (internal quotation marks and citation omitted)). A plaintiff who may ultimately lose on the merits may nonetheless serve as an adequate representative if she has an interest in the outcome of the case. A class representative has two legally cognizable interests in the outcome of a class action: “One is the claim on the merits; the other is the claim that he is entitled to represent a class.” Richards v. Delta Air Lines, Inc., 453 F.3d 525, 529 (D.C.Cir.2006) (internal quotation marks and citation omitted). When the first of these interests expires, the class representative still has a “personal stake” in the class certification claim. Id.; see also Wilson v. Heckler, 580 F.Supp. 1387, 1389 (D.D.C.1984) (concluding that “although plaintiff[’s] claim concerning the method by which her benefits were calculated no longer presents a live controversy for Art. III purposes, her claim that she is entitled to represent a class is still viable and supplies her ‘personal stake’ in the litigation” (quoting U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 402, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980))). Regardless of the merits of his individual claim for damages, Taylor has an ongoing interest in the injunctive relief sought by this claim against the alleged discrimination by his employer. Moreover, Taylor has demonstrated his adequacy by his diligent prosecution of this case on behalf of the class. Jarvaise v. Rand Corp., 212 F.R.D. 1, 3–4 (D.D.C.2002) (observing that “the interest and persistence of the named plaintiffs cannot be questioned in light of their prolonged prosecution of this case.”).15

15

There are several other members of the class who have

been identified by way of their declarations or

affidavits submitted in this case who could be

substituted for Taylor if at some further point in the

litigation it is clear that he is no longer an adequate

representative. See 1 Newberg & Conte on Class

Actions § 2:26 (4th ed.2002) (observing that “the court

may send Rule 23(d)(2) notice to potential class

members inviting intervention for the purpose of

assuming the responsibility of the class litigation”); id.

(explaining that “intervention by absentee members is

freely allowed in order to substitute them as class

representatives”).

WASA also contends that plaintiff’s counsel is not adequate to represent the class because of its performance in Pigford v. Veneman, in which the D.C. Circuit criticized class counsel’s inability to represent claimants adequately due to repeated failures to meet deadlines. See 292 F.3d 918, 925–27 (D.C.Cir.2002). The record in that

case reveals, however, that Taylor’s counsel was not the “class counsel” criticized in Pigford, but rather was one of many other attorneys representing the class and who was added to the case after class counsel missed most of the crucial deadlines. Thus, WASA has raised no genuine concern about counsel’s adequacy.
Accordingly, the court concludes that Taylor has satisfied all requirements of Rule 23(a).

B. Rule 23(b) Requirements Compliance with one sub-part of Rule 23(b) is also required for certification of a class. Taylor contends that he has met the requirements of Rule 23(b)(2) and (3). WASA asserts that he cannot satisfy either.
Rule 23(b)(2) permits certification of a class where “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.”16 Certification is permissible under Rule 23(b)(3) where questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and a class *47 action is superior to other available methods for the fair and efficient adjudication of the controversy.

16

The rule further provides that the “matters pertinent to

the findings include: (A) the interest of members of the

class in individually controlling the prosecution or

defense of separate actions; (B) the extent and nature of

any litigation concerning the controversy already

commenced by or against members of the class; (C) the

desirability or undesirability of concentrating the

litigation of the claims in the particular forum; (D) the

difficulties likely to be encountered in the management

of a class action.” Fed.R.Civ.P. 23(b)(2)

In challenging Taylor’s ability to meet the requirements of either Rule 23(b)(2) or (3), WASA merely repeats its contentions under Rule 23(a)—that WASA has not acted in a class-wide manner and that Taylor has not shown that common questions even exist. As the court explains above, it rejects these contentions. The inquiry, however, does not end there, as the court must be satisfied that the class should be certified under one or more sub-parts of Rule 23(b) before proceeding.
[18] There are two basic factors that must be present in order to certify a class under Rule 23(b)(2): (1) the defendant’s action or refusal to act must be generally applicable to the class;17 and (2) plaintiffs must seek final injunctive relief or corresponding declaratory relief on behalf of the class. Bynum, 217 F.R.D. at 48. The
10

Taylor v. District of Columbia Water & Sewer Authority, 241 F.R.D. 33 (2007)

Advisory Committee Notes on Rule 23 explain that “cases in the civil rights field” are “illustrative” of the types of class actions suitable for certification under (b)(2). Fed.R.Civ.P. 23(b)(2) advisory committee notes; see also Eubanks v. Billington, 110 F.3d 87, 92 (D.C.Cir.1997). Certification under Rule 23(b)(2) is not always appropriate, however, when a class seeks monetary damages in addition to injunctive relief; indeed, it is not permitted if such monetary claims predominate. See Taylor v. D.C. Water & Sewer Authority, 205 F.R.D. 43, 47 (D.D.C.2002). Thus, when a Title VII class action seeks compensatory damages in addition to injunctive relief, the court may exercise its discretion to certify a(b)(2) class as to the claims for declaratory or injunctive relief, and a(b)(3) class as to the claims for monetary relief, otherwise known as “hybrid” certification. See Eubanks, 110 F.3d at 96 (race discrimination claim seeking $8.5 million in compensatory damages; certification under (b)(2) affirmed).18 Another approach, known as “partial certification,” is to bifurcate the action into liability and damages phases and certify a(b)(2) class on liability only, postponing consideration of whether class certification is appropriate for the damages phase until plaintiffs have made it that far. See Does I through III, 232 F.R.D. at 29–30 (certifying class as to injunctive relief and postponing determination regarding monetary damages); see also Fed.R.Civ.P. 23(c)(4)(A) (permitting the partial certification of a class when “an action may be brought or maintained as a class action with respect to particular issues.”). If the plaintiffs succeed in establishing liability in the first phase, the court may order class-wide injunctive and declaratory relief and may then hold so-called “Teamsters hearings” to make individualized determinations as to whether a particular employee suffered an adverse employment action as a result of the defendant’s discriminatory police, and whether she is entitled to individualized equitable relief such as back pay and front pay, or compensatory damages. See Teamsters, 431 U.S. at 336, 97 S.Ct. 1843; Hartman, 19 F.3d at 1462 n. 2.

17

An inquiry into whether the defendant acted on grounds

generally applicable to the 23(b)(2) class is often

considered to be encompassed by the commonality

requirement of Rule 23(a), which the court has already

found to have been met. See Does I through III, 232

F.R.D. at 28 n. 12.

18

Before it can certify a hybrid class, the court is required

to find that the “assumption of cohesiveness”

underlying its Rule 23(b)(2) certification for purposes

of equitable relief does not apply to the class members’

individual claims for monetary damages. See Eubanks,

110 F.3d at 96.

[19] Here, the court has no difficulty concluding that, as to liability, WASA is alleged to have acted or refused to act on grounds generally applicable to all class members and that injunctive relief would be applicable to the entire class. Moreover, litigating the pattern-or-practice liability phase for the class as a whole would both reduce the range of issues in dispute and promote judicial economy. See Robinson v. Metro–North Commuter R.R. Co., 267 F.3d 147, 168 (2d Cir.2001) (observing that (b)(2) certification is appropriate in such cases because “the liability phase is largely preoccupied with class-wide statistical evidence directed at establishing an overall pattern or practice of intentional discrimination”). Accordingly, *48 the court partially certifies the class as to liability under Rule 23(b)(2) for injunctive and declaratory relief, and postpones the decision as to whether to certify the class as to damages, or whether to hold Teamsters hearings, until it is determined whether the class can prevail in the first phase.19

19

The liability phase will consist of a jury trial to

determine liability on the disparate treatment claim and

the Section 1981 claim, and a bench trial to determine

liability on the disparate impact claim. If liability is

found on either claim, the court will then order

injunctive relief as necessary, and will determine at that

time whether to certify the class under (b)(3) for

monetary damages or whether to hold Teamsters

hearings.

[20] The court also concludes that the members of the putative class should be notified of this partial certification, pursuant to Rule 23(c)(2)(A), and of their right to opt-out of this class, see Fed.R.Civ.P. 23(d)(5). Although opt-outs are not usually required under (b)(2), the court may require opt-outs in a certification of a class under (b)(2) if the court finds that “the assumption of cohesiveness” underlying certification of a(b)(2) class is inapplicable to the individual class members’ claims for monetary damages. See Thomas v. Albright, 139 F.3d 227, 236 (D.C.Cir.1998) (observing that permitting optouts in a(b)(2) certification requires that the court have “some reason to believe that the assumption of cohesiveness underlying a subsection (b)(2) class action does not apply to the individual claims for monetary damages”). The possibility that the class may later be certified under (b)(3) to resolve individual damage determinations is sufficient to require opt-outs in these circumstances to protect the members of the class. Fed.R.Civ.P. 23(d)(5) (allowing the court to “make appropriate orders ... requiring for the protection of the members of the class or otherwise for the fair conduct of the action”); see also Eubanks, 110 F.3d at 96 (concluding that this rule is “broad enough to permit the court to allow ... [ (b)(2) opt-outs] ... when necessary to facilitate the fair and efficient conduct of the litigation”).

11

Taylor v. District of Columbia Water & Sewer Authority, 241 F.R.D. 33 (2007)

III. CONCLUSION
For the foregoing reasons, it is this 13th day of March, 2007 hereby
ORDERED that the Second Amended Motion to Certify the Class [# 107] pursuant to Rule 23(b)(2) is GRANTED in part and DENIED in part; and it is further
ORDERED that the putative class of Black employees at WASA who sought and were denied positions, career

ladder promotions, or other advancement, or whose advancement was delayed, or whose compensation was otherwise affected by WASA’s alleged unlawful discrimination, from October 1996 through December 2000, is hereby CERTIFIED; and it is further
ORDERED that on or before April 10, 2007, the parties shall file a proposed case management plan including deadlines that shall govern the future proceedings in this action. If the parties are unable to agree, each shall file its own proposed case management plan and deadlines.
	  

12

 
 Case 1:01-cv-00561-BJR Document 254-1 Filed 03/23/13 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CHARLES TAYLOR et al.

)

)

Plaintiffs,

)

)

v.

)

DISTRICT OF COLUMBIA WATER )

AND SEWER AUTHORITY

)

)

Defendant.

)

)

____________________________________)

Case Number: 1:01CV00561 (BJR) Judge Barbara Jacobs Rothstein

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ CONSENT MOTION FOR FINAL APPROVAL OF THE SETTLEMENT AGREEMENT, AND FOR OTHER RELIEF

Case 1:01-cv-00561-BJR Document 254-1 Filed 03/23/13 Page 2 of 33
Table of Contents
Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii I. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Factual and Procedural Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 III. The Settlement Agreement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A. Monetary Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 B. Claims Process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 C. Programmatic Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
No Retaliation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Commitment to Non-Discrimination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Publication and Distribution of EEO Policy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Mandatory Diversity and EEO Training. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Complaint Procedures and Complaint Tracking System. . . . . . . . . . . . . . . . . . . . 11 Development and Maintenance of a Voluntary Affirmative Action Program. . . . 12 Settlement Compliance Monitor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Internal Implementation Team.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Annual Review of Pay Data and Practices.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 IV. Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 A. The Court Should Vacate the Class’ Certification Under Federal Rule of Civil Procedure 23(b)(2) and Re-Certify the Class under Rule 23(b)(3). . . . . . . . . . . . 14 1. The Class Meets the Criteria for Certification Under Rule 23(b)(3). . . . . 16
a. Questions of Law or Fact Common to Members of the Class are Predominant Over Any Questions Affecting Only Individual Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
b. A Class Action Is Superior to Other Available Methods for the Fair and Efficient Adjudication of this Case. . . . . . . . . . . . . . . . . . . . . 18
2. The Class Should Be Re-Certified Under Rule 23(b)(3). . . . . . . . . . . . . . 18
i

Case 1:01-cv-00561-BJR Document 254-1 Filed 03/23/13 Page 3 of 33
B. The Court Should Grant Final Approval to the Settlement Agreement Because the Agreement is Fair, Reasonable and Adequate. . . . . . . . . . . . . . . . . . . . . . . . . 19 1. The Agreement is Clearly the Result of Arm’s-Length Negotiations. . . . 20 2. The Plaintiffs’ Recovery Under the Agreement Bears a Reasonable Relationship to the Strength of the Plaintiffs’ Case.. . . . . . . . . . . . . . . . . 21 3. This is an Appropriate Stage in the Litigation for Settlement. . . . . . . . . . 23 4. The Reaction of the Class to the Agreement Has Been Favorable. . . . . . 23 5. Class Counsel Strongly Endorses the Agreement. . . . . . . . . . . . . . . . . . . 24 6. The Court Should Grant Final Approval to the Settlement. . . . . . . . . . . . 25
C. The Court Should Approve Payment of the Service Award Because Mr. Taylor Has Gone to Great Lengths to Protect the Interests of the Class and the Class Has Benefitted Greatly From His Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 1. Mr. Taylor Has Given the Class Long, Dedicated and Effective Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 2. The Proposed Service Award to Mr. Taylor is Fair and Reasonable.. . . . 27
V. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ii

Case 1:01-cv-00561-BJR Document 254-1 Filed 03/23/13 Page 4 of 33
Table of Authorities
Federal Cases Cook v. Niedert, 142 F.3d 1004 (7th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Cotton v. Hinton, 559 F.2d 1326 (5th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 24 Hammon v. Barry, 752 F.Supp. 1087 (D.D.C. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 In re DC Water & Sewer Auth., 2009 U.S. App. LEXIS 7137 (D.C. Cir. 2009). . . . . . . . . . . . . . 4 In re DC Water & Sewer Auth., 561 F.3d 494, 385 U.S. App. D.C. 183,
2009 U.S. App. LEXIS 6921 (2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4 In re Hydrogen Peroxide Antitrust Litig. 552 F.3d 305 (3d Cir. 2008). . . . . . . . . . . . . . . . . . . . 16 In re Lorazepam & Clorazepate Antitrust Litig. v. Mylan Labs.,
205 F.R.D. 369 (D.D.C. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20, 24, 25 In re: Vitamins Antitrust Litig., 2001 WL 856290 at *1 (D.D.C. July 19, 2001). . . . . . . . . . 19, 23 Ingram v. Coca-Cola, 200 F.R.D. 685 (N.D.Ga. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Lane v. Facebook, Inc., 696 F.3d 811 (9th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Nelson v. Mead Johnson & Johnson Co., 484 Fed. Appx. 429,
2012 U.S. App. LEXIS 14876 (11th Cir. 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Roberts v. Texaco, 979 F.Supp. 185 (S.D.N.Y. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Schulte v. Fifth Third Bank, 805 F.Supp.2d 560 (N.D.Ill. 2011). . . . . . . . . . . . . . . . . . . . . . . . . 19 Taylor v. D.C. Water & Sewer Auth., 241 F.R.D. 33;
2007 U.S. Dist. LEXIS 17737 (D.D.C. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 15 Thomas v. Albright, 139 F.3d 227 (D.C. Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20 Thomas v. Powell, 247 F.3d 260, 345 U.S. App. D.C. 398,
2001 U.S. App. LEXIS 7687 (2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Trombley v. National City Bank, 826 F.Supp.2d 179 (D.D.C. 2011). . . . . . . . . . . . . 14, 19, 22-25 UAW v. Gen. Motors Corp., 497 F.3d 615 (6th Cir. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
iii

Case 1:01-cv-00561-BJR Document 254-1 Filed 03/23/13 Page 5 of 33 Vassalle v. Midland Funding LLC, 2013 U.S. App. LEXIS 3914 (6th Cir.).. . . . . . . . . . . . . . . . 19 Vista Healthplan v. Warner Holdings Co. III Ltd., 246 F.R.D. 349 (D.D.C. 2007). . . . . . . . . . . 23 Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 180 L. Ed. 2d 374,
2011 U.S. LEXIS 4567 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-16, 22 Yager v. ING Bank, 2012 U.S. Dist. LEXIS 123927 (D.Del. August 31, 2012).. . . . . . . . . . . . 16 Federal Rules of Civil Procedure Fed. R. Civ. P. 23(b)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Fed. R. Civ. P. 23(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Other Authorities 8 NEWBERG ON CLASS ACTIONS § 24:126 (4th ed.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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I. Introduction This case began in March 2001. In August 2012, the Parties reached agreement on a
settlement. The Settlement Agreement (“Agreement”) was submitted to the Court for preliminary approval on August 24, 2012. The Court issued Administrative Order No. 1, preliminarily approving the Agreement, on September 24, 2012.
Pursuant to Administrative Order No. 1 and the terms of the Agreement, a Settlement Fund has been established, a Claims Administrator has been appointed, and notice has been sent to the Class Members.
The Plaintiffs herewith submit their memorandum of law in support of the accompanying Consent Motion for Re-certification of the Settlement Class, Final Approval of the Settlement Agreement and the Re-certified Class, and Authorization for Payment of a Service Award to the Named Plaintiff, Mr. Charles Taylor.
II. Factual and Procedural Background1 Charles Taylor is a resident of the State of Maryland. He is, and was when the complaint
in this case was filed, employed by the Defendant. When he filed his Complaint, Mr. Taylor was employed as a Civil Engineering Technician.2 He has been employed by the Defendant—including its predecessor and successor organizations—since 1989.
1A more detailed recounting of this case’s procedural history may be found in the Plaintiffs’ Motion for Preliminary Approval of the Settlement Agreement, at 2-5. 2Complaint at 7, ¶9.

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The Defendant, DC Water (formerly the District of Columbia Water and Sewer Authority) is an independent authority of the District of Columbia government. The Defendant employs well over one thousand people, most of whom are black.
On March 16, 2001, Charles Taylor filed a Class Action Complaint as Class Representative, on behalf of himself and current and former African-American employees of DC WASA, against DC WASA, in the United States District Court for the District of Columbia. The Complaint alleged that the Defendant subjected the proposed class “to a pattern and practice of discrimination, including disparate treatment, and personnel policies and practices which have a disparate impact on African Americans,” and it sought relief “pursuant to Section 1981 of the Civil Rights Act of 1871, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981 (“Section 1981”), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), including, but not limited to declaratory, injunctive and other equitable relief, and compensatory damages, litigation expenses and reasonable attorneys fees, based on Defendant’s continuing deprivation of rights accorded to the named Plaintiff and [the proposed class].”3
In May 2001, the Defendant moved to dismiss the Complaint, which motion was denied in January 2002. In February 2002, the Defendant petitioned the U.S. Court of Appeals for the District of Columbia Circuit for permission to file an interlocutory appeal of the District Court’s denial of the Defendant’s motion to dismiss. The Court of Appeals denied the petition in April 2002.
3Complaint at ¶1.
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Discovery commenced in November 2002. Hundreds, if not thousands, of documents were exchanged, and numerous depositions were held. Mr. Taylor moved to certify the class in January 2005. On March 13, 2007, the District Court granted the motion in part, and denied it in part.
The Court certified, under Rule 23(b)(2) for injunctive relief only, a class of “Black employees at WASA who sought and were denied positions, career ladder promotions, or other advancement, or whose advancement was delayed, or whose compensation was otherwise affected by WASA’s alleged unlawful discrimination, from October 1996 through December 2000.”4
The Defendant moved the Court for reconsideration of its order certifying the class. That motion was denied. In November 2007, Mr. Taylor moved the Court to enlarge the class period. That motion was denied in February 2008.
In April 2008, the Defendant moved the Court to “clarify the relevant class for notice purposes.” The Court denied that motion.
In August 2008, the Defendant petitioned the Court of Appeals for permission to file an interlocutory appeal of the District Court’s order certifying the class pursuant to Rule 23(f), and moved the District Court to stay issuance of the class notice and further discovery pending the
4Taylor v. D.C. Water & Sewer Auth., 241 F.R.D. 33, 48; 2007 U.S. Dist. LEXIS 17737, **47 (D.D.C. 2007); petition denied sub nom, In re DC Water & Sewer Auth., 561 F.3d 494, 385 U.S. App. D.C. 183, 2009 U.S. App. LEXIS 6921 (2009).
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appeal. The District Court denied that motion. In April 2009, the Court of Appeals denied the Defendant’s petition.5
In January 2010, the Court referred all discovery motions to Magistrate Judge Alan Kay. In July 2010, the Court ordered the Parties to file a joint report indicating whether alternative dispute resolution might be productive after the end of discovery but before the filing of dispositive motions.
In November 2010, the Parties agreed to have the case referred to the Court’s Neutral Evaluation Program, and it was so-referred by Magistrate Judge Kay. Laurel Malson and Arthur Peabody served as the Neutral Evaluators. Before negotiations commenced, they requested, and the Parties submitted, confidential position statements. Mediation sessions were held in March, August, and September 2011.
In September 2011, the Parties reached an agreement in principal with respect to the monetary relief, but negotiations continued with respect to non-monetary, programmatic relief through August 2012, when the Parties agreed to and executed a Settlement Agreement. That Agreement was filed with the Court on August 24, 2012.
The Plaintiffs moved for preliminary approval of the Agreement on September 11, 2012. That motion was granted on September 24, 2012.
The Plaintiffs now move for re-certification of the Settlement Class, final approval of the Agreement and the re-certified Class, and authorization for payment of a Service Award to the Named Plaintiff, Mr. Charles Taylor, and submit this Memorandum of Law in support thereof.
5In re DC Water & Sewer Auth., 561 F.3d 494; 385 U.S. App. D.C. 183; 2009 U.S. App. LEXIS 6921 (2009), petition denied, In re DC Water & Sewer Auth., 2009 U.S. App. LEXIS 7137 (D.C. Cir. 2009).
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III. The Settlement Agreement6 A. Monetary Relief Pursuant to the terms of the Agreement and Administrative Order No. 1, the Defendant
transmitted the sum of $2,885,000 to the Claims Administrator (“Administrator”) within ten days after the Court issued that Order. The Administrator established the Settlement Fund with those funds.
The Agreement requires the Administrator to reserve $1,900,000 (“the Claims Fund”)7 of the $2,885,000 Settlement Fund for the payment of claims (including taxes and withholdings related to individual claim awards) to eligible Class Members and for payment of other taxes as specified in the Agreement.8 The remaining $985,000 is allocated to the payment of attorney’s fees ($800,000),9 litigation costs ($125,000),10 and a Service Award to Mr. Taylor ($60,000).11
Upon the Court’s final approval of the Agreement, the Administrator will distribute the Claims Fund to eligible Class Members pursuant to the Agreement’s allocation formula.12
6 As was true of the Motion for Preliminary Approval of the Settlement Agreement, the Plaintiffs have made every effort to provide an accurate description of the Agreement, and any difference between the representations made herein and the Agreement or its exhibits is inadvertent. Nothing in this Memorandum is intended to modify the Agreement in any way. 7Settlement Agreement at §8.7. 8Id., § 9.1.8. 9Id., at §17.2. 10Id., at §17.2. 11Id., at §8.1.2. 12Id., at §8.8.
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B. Claims Process
The Settlement Class consists of all Black persons who were employed by the Defendant between October 1, 1996 and December 31, 2000.13 The Defendant transmitted a spreadsheet identifying 1,029 class members to the Administrator on October 5, 2012.14
The Agreement provides for two ways that a Class Member could be excluded from the
Settlement Class. First, the Class Member could voluntarily exclude himself or herself by
opting-out. To opt-out, the Class Member was required to send (mail or fax) a letter asking to opt-out of the settlement to the Administrator by January 3, 2013.15 Second, the Agreement
provides for the “mandatory exclusion” of a Class Member if he or she brought a claim of race
discrimination and executed a release of that claim that encompasses the entire period from October 1, 1996 to December 31, 2000.16
13The Parties stipulated that any individuals who were employed by the Defendant as either: (a) General Manager; (b) Assistant General Manager; (c) Deputy General Manager; (d) General Counsel; (e) In-House Counsel; or (f) Director of Human Resources at any point during that period are not part of the class (and are therefore not part of the proposed Settlement Class), even if those individuals would otherwise fall within the parameters of the class as defined by the Court. The Court approved that stipulation. 14Declaration of Mark Patton (“Patton Declaration”), at ¶3 (attached to Plaintiff’s Motion for Final Approval as Exhibit A.) 15Id., at ¶9. 16 The Agreement specifically exempted from mandatory exclusion: “(1) a Class Member who brought a claim of race discrimination and executed a release of that claim that encompasses less than the entire period from October 1, 1996 to December 31, 2000 (he or she will receive a pro rata share of the amount that he or she would have received from the Claims Fund but for the release); (2) a Class Member who signed a general release (e.g., a release of <any and all claims,’ or a release of <all claims that were brought or could have been brought’); (3) a Class Member who signed a release without having brought a claim of race discrimination (e.g., as a result of a reduction-in-force); or (4) a Class Member who signed a release as a result of bringing a claim or claims the gravamen of which was other than a claim of race discrimination (e.g., as the result of bringing a sex discrimination or sexual harassment claim), even if the release purports to release a claim or claims of race discrimination.”
Agreement at §8.1.2.2.
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If the Defendant contended that a particular Class Member should be subject to mandatory exclusion, the Agreement required the Defendant to identify him or her and supply the Administrator and Class counsel with documentation supporting the Defendant’s contention.17 No such Class Members were identified, and no Class Member was excluded under the Agreement’s mandatory exclusion provision.18
The Parties intended to provide the Class Members with actual notice, to the extent practicable, and so stated in the Agreement.19 To that end, the list provided to the Administrator20 by the Defendant on October 5, 2012, consisted of the name, social security number, employee identification number, last-known address, and last-known telephone number of each Class Member. Upon receipt of that list from the Defendant, the Administrator, in an effort to get the best address possible for each Class Member, updated the addresses provided by the Defendant using the United States Postal Service’s National Change of Address database before mailing the notices.21
The Administrator mailed copies of the Notice of Class Action Settlement and the Claim Form to the 1,029 Class Members identified by the Defendant on November 5, 2012.22 129 of those Notices were returned to the Administrator as undeliverable. The Administrator was able
17Agreement, at §8.1.2.3. 18Patton Declaration, at ¶3. 19Settlement Agreement at §6.1. 20Settlement Services, Inc. 21Patton Declaration, at ¶5. 22Id., at ¶4.
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to locate 106 of those 129 Class Members. The Administrator mailed a second notice to the last known address of the remaining 23 Class Members for whom new addresses could not be obtained. 19 of those notices were again returned as undeliverable.23
The Administrator established and maintains a toll-free telephone number to field calls from Class Members.24 Additionally, the Administrator established and maintains a website25 where Class Members can go to for more information about the case, including copies of the Agreement and the Claim Notice.26
The postmark deadline for submission of Claim Forms to the Administrator was January 3, 2013, and the Administrator received 436 claim forms by that date. Of those 436 Claim Forms, 13 were received from people who did not appear on the list provided by the Defendant. 8 of those individuals were determined to be Class Members, which increased the number of Class Members from 1,029 to 1,037.
20 Claim Forms were received after the deadline. Exercising the discretion vested in it by the Agreement, the Administrator accepted 12 of the late Claim Forms. The final number of Class Forms accepted by the Administrator was 421.27
23Id., at ¶6. 24The Administrator has received more than 250 calls. Id., at ¶7. 25w w w .T a ylo r C la s s A c tio n S e ttle m e n t.c o m 26Patton Declaration, at ¶8. 27Patton Declaration, at ¶9.
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The Administrator has only received 1 opt-out request, and it has not received any objections to the Settlement.28
The Agreement sets forth an allocation formula that the Administrator is required to follow to determine the payment each eligible Class Member who timely submits a Claim Form (“Claimant”) will receive from the Claims Fund.29 The Administrator is vested with nonreviewable discretion to determine whether a Claimant will be allotted additional “points” based on the criteria set forth in the Agreement.30
Upon the Court’s final approval of the Agreement, as soon as practicable thereafter the Administrator will send each eligible Class Member a Notice of Award specifying the payment that he or she is eligible to receive, and a Claimant Release Form (“Release Form”).31 Each eligible Claimant will have sixty days from the date of the Notice of Award to return the signed Release Form to the Administrator.
As soon as practicable after the deadline for the receipt of the Release Forms, the Administrator will distribute to each eligible Claimant who submitted a timely, executed Release Form a settlement check in the amount that the Administrator determines he or she is entitled to receive. Each settlement check will be valid for One Hundred Eighty (180) days after the date appearing on the check.
28Patton Declaration, at ¶¶10-11. 29Under the allocation formula, each Claimant automatically receives one point. Agreement, at §8.8. 30Id., at §§8.8-8.9. 31 The releases, the claims covered by the releases, and the implied release and waiver of claims as to Class Members who did not opt-out of the Agreement are described in the Memorandum of Law in Support of the Plaintiffs' Consent Motion for Preliminary Approval of the Settlement and Other Relief. Dkt. 244-1, at 18-19.
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The Administrator will distribute any undistributed funds equally to the Eligible

Claimants, unless the amount is too small to justify such a distribution, in which case the Parties

have agreed to jointly seek the Court’s permission to distribute those funds cy pres to the District

of Columbia Legal Aid Society.

C. Programmatic Relief

The Agreement provides for significant non-monetary, programmatic relief to the Class,

which generally remains in effect for three years after the effective date of the Agreement. That

relief consists of:

•

No Retaliation

The Defendant has pledged that it will not retaliate against any Class Member because he

or she complained of, opposed, or testified or provided information about racial discrimination at

his or her workplace, or because he or she received any benefit from the Settlement.

•

Commitment to Non-Discrimination

Within six months of the Agreement’s Effective Date, the Defendant must provide all of

its employees with a written statement of its commitment to equal employment opportunity,

issued by its General Manager.

•

Publication and Distribution of EEO Policy

Within six months of the Agreement’s Effective Date, the Defendant must provide all of its employees, including new employees, with a copy of its EEO policy and post copies of the policy prominently in common areas of the workplace where they will be visible to employees during the workday.

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•

Mandatory Diversity and EEO Training

Within one year of the Agreement’s Effective Date, the Defendant must conduct or cause

to be conducted a mandatory EEO and Diversity training program for all of its employees, and it

must ensure that all of its employees have received such training within three (3) years of the

Effective Date. The Defendant has also agreed to use its best efforts to ensure that its employees:

(1) understand their responsibility to report, properly investigate and respond to allegations of

violations of those policies; and (2) are trained to identify violations of its EEO policies and to

know the proper procedures to receive, process, investigate and resolve complaints of violations

of those policies.

•

Complaint Procedures and Complaint Tracking System

Within one year of the Agreement’s Effective Date, the Defendant has agreed to develop,

implement and maintain a system to record and track all internal complaints of compensation

discrimination on the basis of race, and the status and resolution of each complaint.

The Defendant will also use its best efforts to ensure that its Human Capital Management

staff (or its functional equivalent) knows the requirements of: (1) the District of Columbia’s anti-

discrimination and anti-retaliation statutes and policies; (2) federal EEO, anti-discrimination and

anti-retaliation statutes and policies; and (3) the Defendant’s own anti-discrimination and anti-

retaliation policies.

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•

Development and Maintenance of a Voluntary Affirmative Action

Program

The Defendant has agreed to develop and fully implement a voluntary, written

Affirmative Action Program (AAP), encompassing any positions in which less than fifty percent of the incumbent employees are African-American, by December 31, 2013.32

•

Settlement Compliance Monitor

Michael Lewis of JAMS, Inc.,33 will serve as the Settlement Compliance Monitor (“the

Monitor”). He will monitor and report on the Defendant’s implementation of the Agreement’s

programmatic relief provisions for the duration of the Agreement. The Defendant has agreed to pay all costs and fees associated with the Monitor.34

Beginning one year after the Agreement’s Effective Date, the Defendant has agreed to

submit, semi-annually, a detailed, written report of the implementation of all aspects of its

programmatic relief obligations under the Agreement to the Monitor. The Monitor will review

the Defendant’s reports and issue a report to the Parties and Counsel assessing the Defendant’s

implementation of the Agreement’s programmatic relief provisions.

• Internal Implementation Team

The Defendant has agreed to assemble and authorize an Internal Implementation Team

(“The Team”), headed by a designated representative from its Office of General Counsel, to

implement its programmatic relief obligations, within one year of the Agreement’s Effective

32The Agreement does not require the Defendant to impose any quotas or preferences on the basis of race in hiring, promotion, compensation or any other term or condition of employment. Agreement at §16.9. 33JAMS, Inc., 555 13th Street, N.W ., Suite 400 W est, W ashington, D.C. 20004. 34Agreement at §16.10.
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Date. In that same time frame, The Team will undertake a comprehensive review of the

Defendant’s compensation policies to ensure that those policies are consistent with the

Defendant’s commitment to equal employment opportunity, and it will recommend potential

improvements to those policies and procedures and send a copy of its review and

recommendations to the Monitor.

•

Annual Review of Pay Data and Practices

Within one year of the Agreement’s Effective Date, and at least yearly thereafter for the

duration of the Agreement, the Defendant has agreed to undertake an annual assessment of the

compensation paid to its employees to determine whether racial disparities exist and, if such

racial disparities exist, to quantify the extent and statistical significance of the disparities and

assess the probability that the disparities are due to legitimate, non-discriminatory factors or other

factors.

If a statistically significant pay disparity is identified that cannot be accounted for by

legitimate, non-discriminatory factors, the Defendant has agreed to conduct an individualized

assessment of the basis for the specific pay decisions underlying the disparity. If, following that

individualized assessment, any pay disparity cannot be accounted for by legitimate, non-

discriminatory factors, the Defendant has agreed to make such appropriate adjustments to the pay

of the particular employee disadvantaged by the disparity as are consistent with applicable legal

standards. The Defendant has also agreed to send a copy of each Annual Pay Assessment and

any individualized assessments to the Monitor. The Monitor is required to review and consider

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the result of those assessments as he determines whether the Defendant is fulfilling its programmatic relief obligations under the Agreement.
IV. Argument A. The Court Should Vacate the Class’ Certification Under Federal Rule of Civil Procedure 23(b)(2) and Re-Certify the Class under Rule 23(b)(3) “Before considering whether the proposed settlement should be finally approved, the
Court first turns to whether the settlement class meets the requirements for certification pursuant to Rule 23. To certify a class for settlement, a court must consider whether the proposed class meets the requirements of Federal Rule of Civil Procedure 23.”35
When the Court (Henry H. Kennedy, J.) granted in part the Plaintiffs’ motion for class certification, it “partially certifie[d] the class as to liability under Rule 23(b)(2) for injunctive and declaratory relief, and postpone[d] the decision as to whether to certify the class as to damages,
35 Trombley v. National City Bank, 826 F.Supp.2d 179, 192 (D.D.C. 2011); Fed. R. Civ. P. 23(a). Of course, as an initial matter, to be certified a class must first satisfy the requirements of Federal Rule of
Civil Procedure 23(a): “(1) the class is so numerous that joinder of all members is impractical (<numerosity’), (2) there are questions of law or fact common to the class (<commonality’), (3) claims/defenses of representative parties are typical of the claims common to the class (<typicality’), and (4) the representative parties will fairly and adequately protect the interests of the class (<adequacy’).” Id., 826 F.Supp.2d at 192.
The Plaintiffs presented their arguments that the proposed Class satisfies the requirements of Rule 23(a) in Plaintiffs’ Amended Motion for Class Certification, at 17-21 (Document No. 99-3). Plaintiffs do not reiterate those arguments here because the Plaintiffs are only seeking re-certification of the class because the holding in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 180 L. Ed. 2d 374, 2011 U.S. LEXIS 4567 (2011), invalidates the Class’ certification under Rule 23(b)(2). See infra, at pp. 15-16.
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or whether to hold Teamsters hearings, until it is determined whether the class can prevail in the first phase.”36
The Supreme Court’s recent decision in Wal-Mart Stores, Inc. v. Dukes,37 however, makes it clear that certification of the class in this case under Rule 23(b)(2) cannot be maintained.
In Wal-Mart v. Dukes, the Supreme Court reversed the certification under Rules 23(a) and 23(b)(2) of an expansive class of current and former women employees of Wal-Mart in a gender discrimination action brought under Title VII in which one of the class’ claims was for back pay. Although Wal-Mart was a 5-4 decision, the Court unanimously held that the class’ “claims for backpay were improperly certified under Federal Rule of Civil Procedure 23(b)(2)” and that claims for backpay “may not be certified under that provision [if] the monetary relief is not incidental to the injunctive or declaratory relief.”38
The Court further stated that “individualized monetary claims belong in Rule 23(b)(3)”39 because certification under Rule 23(b)(3), as compared to certification under Rule 23(b)(1) or Rule 23(b)(2), “allows class certification in a much wider set of circumstances but with greater
36Taylor v. D.C. W ater & Sewer Auth., 241 F.R.D. 33, 48; 2007 U.S. Dist. LEXIS 17737, **45 (D.D.C. 2007)
(footnote omitted).
37W al-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 180 L. Ed. 2d 374, 2011 U.S. LEXIS 4567 (2011). 38Id., 131 S.Ct. at 2557; 180 L.Ed.2d at 396; 2011 U.S. LEXIS 4567 at ***38. 39Id., 131 S.Ct. at 2558; 180 L.Ed.2d at 398; 2011 U.S. Lexis 4567 at ***42.
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procedural protections,” including mandatory notice to class members and the right to opt out of the class.40
In this case, the Class’ claims involve back pay that “is not incidental to the injunctive or declaratory relief,” and the class was certified—though for injunctive relief only—under Rule 23(b)(2). In light of the Wal-Mart holding, the Class’ Rule 23(b)(2) certification cannot be maintained. The Plaintiffs request, therefore, that the Court vacate the Class’ Rule 23(b)(2) certification, and re-certify the Class under Rule 23(b)(3).
1. The Class Meets the Criteria for Certification Under Rule 23(b)(3) A class may be certified under Rule 23(b)(3) “if the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.”41
a. Questions of Law or Fact Common to Members of the Class are Predominant Over Any Questions Affecting Only Individual Members
While there is no specific test to determine whether questions of law or fact common to class members predominate over questions that affect only individual members (“predominance”), it has been held that “[t]he predominance requirement of Rule 23(b)(3) ‘tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.’”42
40W al-Mart, 131 S.Ct. at 2558; 180 L.Ed.2d at 397; 2011 U.S. Lexis 4567 at ***41. 41Fed. R. Civ. P. 23(b)(3). 42Yager v. ING Bank, 2012 U.S. Dist. LEXIS 123927, *29 (D.Del. August 31, 2012) (quoting In re Hydrogen Peroxide Antitrust Litig. 552 F.3d 305, 310-11 (3d Cir. 2008)).
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In this case, questions of law or fact common to the Class Members predominate over any questions that affect only individual Class Members, and the Class is “sufficiently cohesive” to warrant certification under Rule 23(b)(3).
The gravamen of the Plaintiffs’ claims in this case is that they were, as a group, subjected to the Defendant’s facially-neutral employment policies and procedures that, as they were applied, discriminated against them on the basis of their race. The existence, therefore, of such a set of facially-neutral employment policies and procedures that were, as applied, racially discriminatory, is at the very heart of this case. If those facially-neutral employment policies and procedures were not applied in such a manner as to discriminate against the class members on the basis of their race in violation of Title VII, then the employment actions that are the subject of the Plaintiffs’ claims would have to be adjudicated individually, because no common question of law or fact would exist, let alone predominate, to hold those claims together. If, on the other hand, those facially-neutral employment policies and procedures were applied in a manner that discriminated against the class members as a group on the basis of their race, in violation of Title VII, then such common questions of law or fact do exist and predominate.
Whether the Defendant’s facially-neutral employment policies and procedures were applied in an unlawfully discriminatory manner to the detriment of its black employees is the issue in this case. Because common issues of law or fact—i.e., the application of facially-neutral employment policies and procedures in an unlawfully discriminatory manner—predominate over issues that only affect individual class members in this case, certification of the Class under Rule 23(b)(3) is appropriate.
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b. A Class Action Is Superior to Other Available Methods for the Fair and Efficient Adjudication of this Case
It is apparent that a class action is superior to other available methods for the fair and efficient adjudication of the Plaintiffs’ claims in this case. The Class certified by the Court has approximately one thousand members—too many to be handled fairly and efficiently by any means other than a class action.
Additionally, because the question whether the Defendant’s facially-neutral employment policies and procedures were applied in a manner so as to unlawfully discriminate against the class members as a group on the basis of their race is at the heart of this case, if each Class Member had to pursue a claim individually, he or she would have to present essentially the same proof in each case. It is hard to imagine a less efficient way to deal with this controversy than that. A class action is the only fair and efficient way to deal with the claims presented in this case.
2. The Class Should Be Re-Certified Under Rule 23(b)(3) After the Supreme Court’s Wal-Mart decision, the Court’s certification of the Plaintiff class under Rule 23(b)(2) is no longer tenable. However, because questions of law or fact common to members of the class predominate over questions affecting only individual members, and because a class action is the only fair and efficient way to deal with the Plaintiffs’ claims, the Court should vacate the Class’ Rule 23(b)(2) certification and re-certify the Class under Rule 23(b)(3).
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B. The Court Should Grant Final Approval to the Settlement Agreement Because the Agreement is Fair, Reasonable and Adequate
Rule 23(e) of the Federal Rules of Civil Procedure provides that “[t]he claims, issues, or
defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the court's approval...”.43 The approval or rejection of a class action settlement lies in the district court’s discretion.44 “Before it can approve a settlement a district court ‘must find that the
settlement is fair, adequate and reasonable and is not the product of collusion between the parties.’”45 The court’s determination is “... to approve or disapprove of the proposed settlement as a whole.”46
Although Courts of Appeal in several Circuits have articulated specific factors that
district courts in their respective circuits should examine to determine whether a settlement is fair, adequate, and reasonable,47 “[t]here is no single test in this Circuit for determining whether a
43Fed. R. Civ. P. 23(e). 44Trombley v. National City Bank, 826 F.Supp.2d 179, 191 (D.D.C. 2011); In re Lorazepam & Clorazepate Antitrust Litig. v. Mylan Labs., 205 F.R.D. 369, 375 (D.D.C. 2003) (citing In re: Vitamins Antitrust Litig., 2001 WL 856290, at *1 (D.D.C. July 19, 2001)). 45 Thomas v. Albright, 139 F.3d 227, 231 (D.C. Cir 1998) (quoting Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1997) (other citations omitted)), aff’d sub nom, Thomas v. Powell, 247 F.3d 260, 345 U.S. App. D.C. 398, 2001 U.S. App. LEXIS 7687 (2001). 46 Trombley, 826 F.Supp.2d at 208 (citing Schulte v. Fifth Third Bank, 805 F.Supp.2d 560, 591-92 (N.D.Ill. 2011) (citing 8 NEWBERG ON CLASS ACTIONS § 24:126 (4th ed.)). 47 See, e.g., Vassalle v. Midland Funding LLC, 2013 U.S. App. LEXIS 3914, *11-12 (6th Cir.) (“A district court looks to seven factors in determining whether a class action settlement is fair, reasonable, and adequate: ‘(1) the risk of fraud or collusion; (2) the complexity, expense and likely duration of the litigation; (3) the amount of discovery engaged in by the parties; (4) the likelihood of success on the merits; (5) the opinions of class counsel and class representatives; (6) the reaction of absent class members; and (7) the public interest.’”) (quoting UAW v. Gen. Motors Corp., 497 F.3d 615, 631 (6th Cir. 2007)); Lane v. Facebook, Inc., 696 F.3d 811, 819 (9th Cir. 2012) (“A number of factors guide the district court in making that determination, including: the strength of the plaintiffs’ case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class action status
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proposed class action settlement should be approved under Rule 23(e), and the relevant factors may vary depending on the factual circumstances.”48 One District Court concluded that to determine whether a proposed settlement agreement is fair, adequate and reasonable, courts in this Circuit have considered: “ (a) whether the settlement is the result of arms-length negotiations; (b) the terms of the settlement in relation to the strength of plaintiffs’ case; (c) the stage of the litigation proceedings at the time of settlement; (d) the reaction of the class; and (e) the opinion of experienced counsel.”49
Taking each of those factors into account, it is clear that the Agreement is fair, adequate and reasonable, and the Court should grant the Plaintiffs’ Motion for Final Approval of the Agreement.
1. The Agreement is Clearly the Result of Arm’s-Length Negotiations Settlement negotiations began in March 2011, but a final agreement was not reached until August 2012, almost 18 months later. The Agreement that resulted from those negotiations is specific, comprehensive, and tailored to the unique circumstances of this case. Counsel expended considerable time and effort to forge an agreement that satisfied both parties. It is evident, simply from the length of the negotiations that produced the Agreement, that the Agreement is the result of arm’s-length negotiations.
throughout the trial; the amount offered in settlement; the extent of discovery completed and the stage of the proceedings; the experience and views of counsel; the presence of a governmental participant; and the reaction of the class members to the proposed settlement.”). 48In re Lorazepam & Clorazepate Antitrust Litig. v. Mylan Labs., 205 F.R.D. 369, 375 (D.D.C. 2003) (citing Pigford v. Glickman, 185 F.R.D. 82, 98 & n.13 (D.D.C. 1999) (citing Thomas v. Albright, 139 F.3d 227, 231 (D.C. Cir. 1998)). 49In re Lorazepam, 205 F.R.D. at 375 (citations omitted).
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2. The Plaintiffs’ Recovery Under the Agreement Bears a Reasonable Relationship to the Strength of the Plaintiffs’ Case

Under the Agreement, the Plaintiffs will recover $1,900,000 for the payment of claims (including taxes on awards and other taxes as specified in the Agreement) to eligible Claimants.50 The Defendant will also pay attorneys’ fees,51 litigation costs,52 a service award to the Named Plaintiff, 53 and the costs of the Administrator.54

In addition to the monetary recovery, the Agreement provides for significant

programmatic, non-monetary relief, including:

•

mandatory diversity and EEO training across the Defendant's entire workforce;55

•

the development and implementation of a voluntary, written affirmative action

program that encompasses any positions in which less than fifty percent of the incumbent employees are African-American, by December 31, 2013;56 and

• annual assessments of the compensation paid to the Defendant's employees to

identify statistically significant racial disparities that cannot be accounted for by

50Agreement at §8.7. 51Id., at §17.2. 52Id. 53Id., at §8.1.2. 54Id., at §10. 55Id., at §16.6. 56Id., at §16.9.
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legitimate, non-discriminatory factors, and to correct such disparities if they are found to exist.57 The Agreement further provides for a Settlement Monitor, paid for by the Defendant, whose duty is to monitor and report on the Defendant’s implementation of the Agreement’s programmatic relief provisions for the duration of the Agreement.58 None of this programmatic relief could have been recovered by the Plaintiffs, absent a court order, if this case had not been settled. In Class Counsel's opinion, the major strengths of the Plaintiffs’ case are: (1) the report of the Plaintiffs’ Expert, Dr. Lanier; (2) deposition testimony; (3) the demographic distribution of the Defendant’s workforce; and (4) certain aspects of the Defendant’s expert report, and the case’s major weaknesses are: (1) the difficulty of identifying a specific employment practice that is responsible for the alleged discrimination; (2) the report of the Defendant’s expert, Dr. White; (3) the lack of comparators due to the demographic distribution of the Defendant's workforce; and (4) the uncertain legal environment occasioned by Wal-Mart v. Dukes.59
57Agreement at §16.12. 58Id., at §16.10.2. 59W al-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 180 L. Ed. 2d 374, 2011 U.S. LEXIS 4567 (2011). At least one Court in this Circuit has considered the unsettled state of the legal environment in a particular field of law when it assessed the reasonableness of a settlement agreement. See, Trombley v. National City Bank, 826 F.Supp.2d 179, 196 (D.D.C. 2011) (noting, while assessing settlement terms in relation to the strength of the plaintiff’s case, that “the legal landscape for such suits remains challenging and riddled with uncertainty.”).
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3. This is an Appropriate Stage in the Litigation for Settlement This case, which began just over 12 years ago, is at an appropriate juncture for settlement. There has been enough discovery for each Party to make an informed and realistic assessment of the strengths and weaknesses of its respective case, and neither party has yet committed itself to expending the resources necessary to bring and resolve dispositive motions and to prepare for trial. If this case can be settled, this is the time to settle it. Here, settlement “does not come <too early to be suspicious nor too late to be a waste of resources,’ but instead it comes <at a desirable point in the litigation for the parties to reach an agreement and to resolve the issues without further delay, expense, and litigation.’”60
4. The Reaction of the Class to the Agreement Has Been Favorable The Administrator mailed copies of the Notice of Class Action Settlement and the Claim Form to the 1,029 Class Members identified by the Defendant on November 5, 2012.61 The Administrator has received and accepted 423 Claim Forms.62 No objections and only 1 opt-out request have been received.63 Of the 422 submissions received by the Administrator (421 Claim Forms and 1 opt-out request), only 1/422, or 0.2%, can be characterized as being in any way negative, and “the
60Trombley, 826 F.Supp.2d at 199 (quoting Vista Healthplan v. W arner Holdings Co. III Ltd., 246 F.R.D. 349, 362 (D.D.C. 2007) (quoting In re Vitamins Antitrust Litig, 305 F.Supp.2d 100, 103 (D.D.C. 2004)). 61Patton Declaration, at ¶4. 62Id., at ¶9. 63Id., at ¶¶10-11.
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relatively low number of objections and opt-outs, in light of the number of claims submitted, weighs in favor of the settlement.”64
5. Class Counsel Strongly Endorses the Agreement
Class Counsel are experienced attorneys who have spent years representing employees in
employment discrimination and civil rights cases. David A. Branch has been in private practice
since 1994. He has served as class counsel in two class actions, and lead counsel in
approximately 100 employment discrimination cases before the EEOC and local administrative
agencies, and state and federal courts. Alexander Hillery, II, has served as class counsel in two
class actions, and lead counsel in approximately 20 employment discrimination cases before the EEOC and local administrative agencies, and state and federal courts in the Washington, D.C.65
It is the considered judgment of Class Counsel that the Agreement is fair, reasonable, and
adequate, and that the settlement bears a reasonable relationship to the strength of the Plaintiffs' case. Class Counsel strongly endorses the Agreement.66
64Trombley, 826 F.Supp.2d at 200 (citing In re Lorazepam, 2003 U.S. Dist. LEXIS 12344, 2003 W L 22037741 at *6 (“[T]he existance [sic]of even a relatively few objections certainly counsels in favor of approval.”)). 65 See Declaration of David A. Branch, Esq., attached to Class Counsel’s Unopposed Motion for an Award of Attorneys’ Fees and Expense Reimbursement, at ¶¶ 14-28 (Dkt. No. 252, filed March 18, 2013). 66 W hen the Court evaluates whether a settlement agreement is fair, reasonable and appropriate, it should not substitute its own judgment for that of Class Counsel. Nelson v. Mead Johnson & Johnson Co., 484 Fed. Appx. 429, **12-13, 2012 U.S. App. LEXIS 14876, *434 (11th Cir. 2012) (“Absent fraud, collusion, or the like, the district court <should be hesitant to substitute its own judgment for that of counsel.’” (quoting Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977)); Trombley v. National City Bank, 826 F.Supp.2d 179, 203 (D.D.C. 2011) (“it is not the Court’s role to use its own business judgment in place of the parties’ assessment in determining the fairness of the proposed settlement.”) (citing BofA Order of Final Approval, 2011 U.S. Dist. LEXIS 135014 at *85); Hammon v. Barry, 752 F.Supp. 1087, 1093 (D.D.C. 1990) (“It is well established that a court deciding whether to approve a class action settlement should not substitute its judgment for that of the proponents of the settlement, and that unless the settlement is clearly inadequate, its acceptance and approval are preferable to lengthy and expensive litigation with uncertain results.”) (internal quotation marks and additional citations omitted).
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6. The Court Should Grant Final Approval to the Settlement Even though the Plaintiffs are confident of the strength of their case, they are keenly aware of the vicissitudes of litigation and the risks and uncertainty of trial. Class Counsel has weighed the strengths and weaknesses of the Plaintiffs’ case, the time and resources necessary to litigate this case further, the risks and uncertainty of further litigation, and the probability of appeal (with the attendant delay) even if the Plaintiffs prevail at trial and concluded that the monetary and programmatic relief that the Class will receive under the Agreement is fair and reasonable, and that this is an appropriate point to settle the case. The Court should grant the Plaintiffs’ motion and grant final approval to the Agreement. C. The Court Should Approve Payment of the Service Award Because
Mr. Taylor Has Gone to Great Lengths to Protect the Interests of the Class and the Class Has Benefitted Greatly From His Service 1. Mr. Taylor Has Given the Class Long, Dedicated and Effective
Service “To determine whether incentive awards should be granted, and the proper amount of such awards, <courts consider factors such as the actions the plaintiff has taken to protect the interests of the class, the degree to which the class has benefitted from those actions, and the amount of time and effort the plaintiff expended in pursuing the litigation.’”67 Except for a very brief period between May 2001 and October 2001, when he was a coplaintiff with Mr. Ronald Marshall,68 Charles Taylor has been the sole Named Plaintiff in this
67 Trombley v. National City Bank, 826 F.Supp.2d 179, 207 (D.D.C. 2011) (citing In re Lorazepam, 2003 U.S. Dist. LEXIS 12344, 2003 W L 22037741, at *10) (quoting Cook v. Niedert, 142 F.3d 1004, 1006 (7th Cir. 1998)). 68 See Dkt. No. 6 (adding Mr. Marshall as a Plaintiff); Dkt. No. 23 (dismissing Mr. Marshall from the complaint).
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action. He has reliably and earnestly represented the interests of the Class Members in this matter, virtually alone, for more than 13 years.
Mr. Taylor has been an active participant in the prosecution of this lawsuit. He was deposed; he answered interrogatories; he produced documents; he attended almost every court proceeding related to this matter; and he has been diligent about communicating with Class Counsel.69
Mr. Taylor has been instrumental in helping counsel to identify people who were willing and able to assist with the prosecution of this case, and he has served as a conduit between Class Counsel and Class Members. He actively participated, on behalf of the Class, in all three of the mediation sessions, and in the subsequent negotiations that led to the Agreement.70
The Class has greatly benefitted from Mr. Taylor’s long and resolute service. If the Court approves the settlement, eligible Claimants will share $1.9 million, and all of the Defendant's black employees will benefit from the Agreement's programmatic relief.71
Without Mr. Taylor’s determined service to the Class, this case likely would have been abandoned or settled on far less favorable terms years ago. Without him there would be no case, no settlement, and no relief for the Class.72
69 See Declaration of Alexander Hillery, II, Esq., (“Hillery Declaration”), attached to Plaintiffs’ Motion for Final Approval as Exhibit B. 70Id. 71The mandatory EEO training, analysis of the compensation paid to the Defendant's employees and other programmatic relief that arose out of the Settlement will potentially benefit all of the Defendant's employees, not just its black employees. 72See Hillery Declaration.
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Mr. Taylor deserves the Service Award, and the Court should approve it.
2. The Proposed Service Award to Mr. Taylor is Fair and Reasonable The Agreement provides for payment of a $60,000 Service Award to Mr. Taylor, in lieu of receiving a payment from the Claims Fund based on the Allocation Formula.73 That payment is reasonable in light of his long and dedicated service to the Class. Mr. Taylor filed the administrative complaint with the EEOC that was the genesis of this class action, raising class-based claims on behalf of the himself and the Defendant's other current and former black employees. Thereafter, he personally paid a $3,000 retainer to Attorney Branch to bring this lawsuit. The proposed Service Award to Mr. Taylor is not inconsistent with incentive payments to named plaintiffs in other employment discrimination class actions.74 Considering the fact that he has carried this case alone for almost its entire 13-year duration, the amount of time and energy he has expended on behalf of the Class, and the risk he took by bringing this case, the Service Award is fair and reasonable.
73Agreement at §8.12. 74See, e.g., Roberts v. Texaco, 979 F.Supp. 185 (S.D.N.Y. 1997) (incentive awards of $7500 to $85,000 for named plaintiffs in employment discrimination class action with common fund of $115 million); Ingram v. Coca-Cola, 200 F.R.D. 685, 694 (N.D.Ga. 2001) (approving incentive awards of $300,000 to three named plaintiffs in employment discrimination class action which created $84 million damage fund and fund for future salary increases).
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V. Conclusion

For the reasons set forth herein, the Plaintiffs respectfully request that the Court grant the

Plaintiffs’ Motion and issue an Order re-certifying the Settlement Class, granting final approval

of the Settlement Agreement and the re-certified Class, and authorizing payment of a Service

Award to the Named Plaintiff, Mr. Charles Taylor.

Respectfully submitted,

/s Alexander Hillery, II (D.C. Bar No. 980231) Law Office of Alexander Hillery, PLLC 1629 K St., NW, Suite 300 Washington, D.C. 20006-1631 (202) 288-5139 (phone) (301) 877-5972 (facsimile) aghillery@gmail.com Attorney for Plaintiffs

DATED:

March 22, 2013 Washington, DC

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 Case 1:01-cv-00561-BJR Document 240 Filed 08/24/12 Page 1 of 61

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CHARLES TAYLOR et al.

)

)

Plaintiffs,

)

)

v.

)

DISTRICT OF COLUMBIA WATER )

AND SEWER AUTHORITY

)

)

Defendant.

)

)

Case Number: 1:01CV00561 Judge: Barbara Jacobs Rothstein

SETTLEMENT AGREEMENT
Respectfully submitted by:
Grace E. Speights (D.C. Bar No. 392091) William E. Doyle, Jr. (D.C. Bar No. 498522) Diana M. Uribe (D.C. Bar No. 984840) MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Ave., NW Washington, D.C. 20004 Attorneys for Defendant
David A. Branch (D.C. Bar No. 438764) Law Office of David A. Branch and Associates, PLLC 1901 Pennsylvania Avenue, NW, Suite 802 Washington, D.C. 20006
Alexander Hillery, II (D.C. Bar No. 980231) Law Office of Alexander Hillery, PLLC 1629 K St., NW, Suite 300 Washington, D.C. 20006-1631 Attorneys for Plaintiffs

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TABLE OF CONTENTS
1 INTRODUCTION...................................................................................................................... 1 2 BACKGROUND AND PURPOSES......................................................................................... 2 3 DEFINITIONS ........................................................................................................................... 4 4 JURISDICTION AND VENUE................................................................................................ 7 5 DUTIES OF THE PARTIES PRIOR TO COURT APPROVAL ......................................... 8
5.1 Preliminary Approval Order ............................................................................................. 8 5.2 CAFA Notice ....................................................................................................................... 9 6 NOTICE TO CLASS MEMBERS ........................................................................................... 9 6.1 Intent .................................................................................................................................... 9 6.2 Determining the Composition of the Class ....................................................................... 9
6.2.1 Transmittal of Class Member Data to the Claims Administrator........................... 9 6.2.2 Challenging Omission from the Class ........................................................................ 9 6.3 Distributing the Notice and Claim Form ........................................................................ 10 6.3.1 Pre-Distribution Address Verification ..................................................................... 10 6.3.2 Form of Notice and Claim Form .............................................................................. 11 6.3.3 Initial Mailing of the Notice ...................................................................................... 11 6.3.4 Second Mailing of Notice When First is Returned ................................................. 11 6.3.5 Claims Administrator: Record Keeping and Due Diligence.................................. 12 7 FAIRNESS HEARING AND OBJECTIONS ....................................................................... 12 7.1 Fairness Hearing ............................................................................................................... 12 7.2 Objections .......................................................................................................................... 12 8 MONETARY RELIEF............................................................................................................ 13 8.1 The Settlement Class ........................................................................................................ 13 8.1.1 Composition of the Settlement Class........................................................................ 13 8.1.2 Exclusion from the Settlement Class........................................................................ 13
8.1.2.1 Voluntary Exclusion: Opting-Out ...................................................................... 13 8.1.2.2 Mandatory Exclusion: Prior Released Claims .................................................. 14 8.1.2.3 Identifying Excluded Class Members ................................................................ 15 8.1.2.4 Dispute Resolution ............................................................................................... 16 8.2 The Settlement Fund ........................................................................................................ 16 8.3 Establishing the Settlement Fund.................................................................................... 17
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8.4 Authority Over the Settlement Account ......................................................................... 17 8.5 Purpose of the Settlement Fund ...................................................................................... 17 8.6 Claim Filing Procedures................................................................................................... 18
8.6.1 Submission of Claims Forms to the Administrator ................................................ 18 8.6.2 Administrator and Class Counsel to Assist Settlement Class Members in
Submitting Claim Forms .......................................................................................... 19 8.6.3 Class Members to Promptly Notify the Administrator of Any Change of
Address....................................................................................................................... 19 8.6.4 Administrator to Determine Eligibility for and Amount of Payment to
Claimants ................................................................................................................... 20 8.6.5 Administrator’s Discretion to Excuse Late or Incomplete Filings and to
Extend Filing Deadline ............................................................................................ 20 8.7 The Claims Fund............................................................................................................... 20 8.8 Allocation Formula ........................................................................................................... 21 8.9 Determination of the Administrator is Final and Unreviewable.................................. 22 8.10 Payment to Eligible Claimants ...................................................................................... 22
8.10.1 Notice of Awards to Claimants ............................................................................... 22 8.10.2 Distribution of Settlement Checks.......................................................................... 22 8.10.3 Deceased Class Members......................................................................................... 23 8.10.4 Settlement Checks .................................................................................................... 23
8.10.4.1 Settlement Checks Valid for One Hundred Eighty Days ............................... 23 8.10.4.2 Failure to Negotiate Settlement Check ............................................................ 24 8.11 Distribution of Funds Remaining in the Settlement Fund .......................................... 24 8.12 Payment to the Named Plaintiff .................................................................................... 25 8.12.1 Named Plaintiff to Receive Service Payment in Lieu of Award Predicated on
the Allocation Formula ........................................................................................... 25 8.12.2 Distribution of the Named Plaintiff Release Form ............................................... 25 8.12.3 Distribution of Settlement Check to the Named Plaintiff .................................... 25 9 TAXES ...................................................................................................................................... 26 9.1 Duties and Responsibilities of the Administrator .......................................................... 26 9.1.1 Establishing the Qualified Settlement Fund............................................................ 26 9.1.2 Administrator is Trustee of Settlement Fund ......................................................... 26 9.1.3 Payment and Reporting of Federal, State and Local Taxes................................... 26
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9.1.4 Administrator to Determine the Tax Allocation of Distributions ......................... 27 9.1.5 DC Water to Remit Its Share of Taxes and Contributions to the
Administrator ............................................................................................................ 27 9.1.6 Administrator to Remit Payroll Tax Payment ........................................................ 27 9.1.7 Interest ........................................................................................................................ 28 9.1.8 Other Taxes Payable from the Claims Fund ........................................................... 28 9.1.9 Administrator’s Costs and Expenses To Be Paid By DC Water ........................... 28 9.1.10 Mutual Cooperation................................................................................................. 28 9.1.11 Defendant Has No Further Obligation to, or Liability or Responsibility for
the Settlement Fund ................................................................................................ 29 9.1.12 Record Keeping and Access to Distribution Information .................................... 30 10 ADMINISTRATOR’S FEES, COSTS AND EXPENSES.................................................. 30 11 NULLIFICATION OR TERMINATION OF THIS AGREEMENT ............................... 30 11.1 Agreement Not Approved, or Approval is Reversed or Modified ............................. 30 11.2 DC Water’s Right to Terminate This Agreement, or Receive an Opt-Out Credit... 31 11.2.1 DC Water’s Right to Terminate this Agreement .................................................. 31 11.2.2 DC Water’s Option to Receive an Opt-Out Credit in Lieu of Terminating
This Agreement ...................................................................................................... 31 11.2.3 Exercising the Option to Take An Opt-Out Credit .............................................. 31 11.2.4 Payment of the Opt-Out Credit .............................................................................. 31 11.3 Effects of Termination.................................................................................................... 32 11.3.1 Return of Settlement Fund to DC Water............................................................... 32 11.3.2 No Waiver of Claims of Defenses............................................................................ 32 11.3.3 Parties Restored to the Status Quo Ante ................................................................ 32 11.3.4 Judgments and Orders to be Vacated .................................................................... 33 12 RELEASES............................................................................................................................. 33 12.1 Claimant Releases ........................................................................................................... 33 12.1.1 Executed, Original Claimant Release Forms Must be Submitted to the Administrator ...................................................................................................................... 33 12.1.2 Claims Released By Claimants ............................................................................... 33 12.2 Named Plaintiff Release ................................................................................................. 33 12.2.1 Executed, Original Named Plaintiff Release Must Be Submitted to the ............ 33
Administrator ......................................................................................................... 33
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12.2.2 Claims Released by the Named Plaintiff................................................................ 34 12.2.3 Claims Reserved by the Named Plaintiff ............................................................... 34 12.3 Releases Are a Material Part of this Agreement.......................................................... 34 12.4 Administrator to Deliver Copies of Executed Releases ............................................... 34 13 FAILURE TO OPT OUT OR FILE CLAIM FORM DEEMED A RELEASE .................. OF CLAIMS ......................................................................................................................... 35 14 NO ADMISSION, NO DETERMINATION ....................................................................... 35 15 INADMISSIBILITY OF FACT OF AWARD OR NON-AWARD................................... 36 16 PROGRAMMATIC RELIEF............................................................................................... 36 16.1 Duration ........................................................................................................................... 36 16.2 Commitment to Non-Discrimination ............................................................................ 36 16.3 Publication and Distribution of EEO Policy ................................................................ 37 16.4 No Retaliation.................................................................................................................. 37 16.5 Publication and Distribution of Compensation Policies.............................................. 37 16.6 Mandatory Diversity and EEO Training...................................................................... 38 16.7 Complaint Procedures and Complaint Tracking System ........................................... 39 16.7.1 Enhanced Awareness of Complaint Procedures ................................................... 39 16.7.2 Complaint Tracking System ................................................................................... 39 16.8 Human Capital Management Staff ............................................................................... 40 16.9 Development and Maintenance of Voluntary Affirmative Action Program............. 40 16.10 Settlement Compliance Monitor.................................................................................. 41 16.10.1 Selection .................................................................................................................. 41 16.10.2 Cost .......................................................................................................................... 41 16.10.3 Duties....................................................................................................................... 41 16.10.4 Reports .................................................................................................................... 41
16.10.4.1 Reports from DC Water to the Monitor ........................................................ 41 16.10.4.2 Reports from the Monitor to the Parties and Counsel ................................. 41 16.10.5 Confidentiality........................................................................................................ 42 16.10.6 Status of the Monitor ............................................................................................. 42 16.10.7 Cooperation with the Monitor .............................................................................. 42 16.11 Internal Implementation Team ................................................................................... 42 16.11.1 Assembly, Authorization and Composition ......................................................... 42 16.11.2 Meetings .................................................................................................................. 43
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16.11.3 Commitment ........................................................................................................... 43 16.11.4 Support.................................................................................................................... 43 16.11.5 Review of Compensation Policies for EEO Considerations ............................... 43
16.11.5.1 Review by The Team ....................................................................................... 43 16.11.6 Confidentiality........................................................................................................ 44 16.11.7 Good Faith .............................................................................................................. 44 16.12 Annual Review of Pay Data and Practices ................................................................. 44 16.12.2 Individualized Assessment of Statistically Significant Pay Disparities Not
Accounted for By Legitimate, Non-Discriminatory Factors ............................ 45 16.12.3 Submission of the Annual Pay Assessment to the Monitor................................ 45 16.12.4 Monitor to Review and Consider Result of Pay Assessment ............................. 46 16.12.5 Confidentiality........................................................................................................ 46 16.12.6 Submission of the Annual Pay Assessment to the Monitor Not Intended to
Waive Privilege..................................................................................................... 46 17 ATTORNEYS’ FEES AND LITIGATION COSTS ........................................................... 47
17.1 DC Water to Consent to Class Counsel’s Motion for Attorneys’ Fees and Costs ............................................................................................................................... 47
17.2 Attorneys’ Fees and Costs to Be Paid By the Administrator...................................... 47 18 ADEQUACY OF CONSIDERATION................................................................................. 48 19 OTHER TERMS .................................................................................................................... 48
19.1 Exhibits ............................................................................................................................ 48 19.2 Notices .............................................................................................................................. 48 19.3 Failure to Insist on Strict Compliance Is Not Waiver ................................................. 49 19.4 Agreement Inures to the Benefit of the Parties ............................................................ 49 19.5 No Drafting Presumption ............................................................................................... 49 19.6 Interpretation of Terms.................................................................................................. 49 19.7 Paragraph and Section Headings .................................................................................. 49 19.8 Agreement Binding When Executed ............................................................................. 50 19.9 Submissions and Filings from Class Members and Claimants................................... 50 20 SECURING FINAL COURT APPROVAL AND SUBSEQUENT DUTIES
OF THE PARTIES ............................................................................................................. 50 20.1 Submission of Proposed Final Order ............................................................................ 50 20.2 Return or Destruction of Confidential Documents...................................................... 50
vi

Case 1:01-cv-00561-BJR Document 240 Filed 08/24/12 Page 7 of 61 21 AUTHORITY OF THE PARTIES TO ENTER INTO THIS AGREEMENT ................ 51 22 MODIFICATION .................................................................................................................. 51 23 ENTIRE AGREEMENT ....................................................................................................... 51 24 COUNTERPARTS ................................................................................................................ 51 25 ENFORCEMENT AND DISPUTE RESOLUTION .......................................................... 52 26 GOVERNING LAW .............................................................................................................. 52 27 DEADLINES MAY BE EXTENDED .................................................................................. 53 28 FAXED SIGNATURES DEEMED ORIGINAL................................................................. 53
vii

Case 1:01-cv-00561-BJR Document 240 Filed 08/24/12 Page 8 of 61

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CHARLES TAYLOR et al.

)

)

Plaintiffs,

)

)

v.

)

DISTRICT OF COLUMBIA WATER )

AND SEWER AUTHORITY

)

)

Defendant.

)

)

Case Number: 1:01CV00561 Judge: Barbara Jacobs Rothstein

SETTLEMENT AGREEMENT

1

INTRODUCTION

1.1

Subject to the approval of the United States District Court for the District of

Columbia (“the Court”), this Settlement Agreement sets forth the full and final terms by which

the Class Representative, Charles Taylor, on behalf of himself and the class of current and

former African-American employees of the District of Columbia Water and Sewer Authority

certified by the Court on March 13, 2007, and the Defendant, District of Columbia Water and

Sewer Authority (“DC WASA” or “WASA”), have settled and resolved all claims raised by the Plaintiffs in this matter.1

1 The District of Columbia Water and Sewer Authority is now known as “DC Water” and will be referred to as such in this Agreement except for the “Introduction,” “Background” and “Definitions” sections.
1

Case 1:01-cv-00561-BJR Document 240 Filed 08/24/12 Page 9 of 61

2

BACKGROUND AND PURPOSES

2.1

On March 16, 2001, Charles Taylor, as Class Representative, filed a Class Action

Complaint against DC WASA in the United States District Court for the District of Columbia on

behalf of himself and current and former African-American employees of DC WASA. The

Complaint alleged, inter alia, that the Defendant subjected the proposed class “to a pattern and

practice of discrimination, including disparate treatment, and personnel policies and practices

which have a disparate impact on African Americans,” and it sought relief “pursuant to Section

1981 of the Civil Rights Act of 1871, as amended by the Civil Rights Act of 1991,

42 U.S.C. Section 1981 (‘Section 1981’), and Title VII of the Civil Rights Act of 1964,

42 U.S.C. Section 2000e et seq. (Title VII), including, but not limited to declaratory, injunctive

and other equitable relief, and compensatory damages, litigation expenses and reasonable

attorneys fees, based on Defendant’s continuing deprivation of rights accorded to the named

Plaintiff and …” the proposed class.

2.2

Mr. Taylor filed a First Amended Complaint on May 2, 2001, and a Second

Amended Complaint on December 19, 2002. Both Amended Complaints contained the same

substantive allegations that were contained in the original Complaint.

2.3

On March 13, 2007, the Court certified, under Rule 23(b)(2) for injunctive relief

only, a class of “Black employees at WASA who sought and were denied positions, career ladder

promotions, or other advancement, or whose advancement was delayed, or whose compensation

was otherwise affected by WASA’s alleged unlawful discrimination, from October 1996 through

December 2000.”

2.4

In 2010, in an effort to avoid the certain expense and uncertain outcome of further

litigation, the Parties decided to explore the possibility of settlement and agreed to have the case

referred to the Court’s Neutral Evaluation Program. Laurel Malson and Arthur Peabody were 2

Case 1:01-cv-00561-BJR Document 240 Filed 08/24/12 Page 10 of 61

selected to be the Neutral Evaluators (“Neutrals”). The Parties presented confidential position

statements to the Neutrals, and mediation sessions were held in March, August and

September 2011.

2.5

As a result of the mediation sessions, the Parties have reached this Settlement

Agreement (“Agreement”) recognizing that, in the absence of an approved settlement, they

would face a long litigation course, including motions to decertify the class and for summary

judgment and, possibly, trial and appellate proceedings that would consume a great deal of time

and resources and present each of them with ongoing litigation risks and uncertainties. The

Parties wish to avoid those risks and uncertainties, as well as the consumption of additional time

and resources, and have decided that an amicable settlement pursuant to the terms and conditions

of this Agreement is preferable to continued litigation.

2.6

Each party believes that it is in its best interests to enter into this Agreement.

With respect to the Plaintiffs, specifically, the Class Representative and Class Counsel believe

that entering into this Agreement, which provides for prompt and certain relief to the Class, is in

the best interests of the Class, and that the terms of this Agreement are fair, reasonable and

adequate.

2.7

Without any admission or concession by the Defendants of any liability or

wrongdoing with respect to the allegations in the Second Amended Complaint, all released

claims will be finally and fully compromised, settled, and released subject to the terms and

conditions of this Agreement.

2.8

By entering into this Agreement, the Parties wish to fully and finally settle and

discharge all claims raised by the Plaintiffs in this Action.

3

Case 1:01-cv-00561-BJR Document 240 Filed 08/24/12 Page 11 of 61

3

DEFINITIONS

3.1

The words and terms listed below have the meanings set forth in this Section

wherever they are used in this Agreement:

3.1.1

The “Action” and “Civil Action” means the above-captioned case, Charles Taylor

et al. v. District of Columbia Water and Sewer Authority (1:01-cv-00561).

3.1.2

The “Agreement” and the “Settlement Agreement” mean this Agreement.

3.1.3

The “CAFA Notice” refers to the notice to be sent to appropriate federal officials

pursuant to the requirements of the Class Action Fairness Act of 2005 (“CAFA”),

28 U.S.C. Section 1715(b).

3.1.4

A “Claimant” is a Settlement Class Member who timely submits a Claim Form to

the Claims Administrator.

3.1.5

The “Claimant Release Form” (Exhibit D) is the Release Agreement each

Claimant must timely submit to the Administrator to be eligible to receive payment from the

Claims Fund.

3.1.6

The “Claims Administrator” (“Administrator”) is Settlement Services, Inc.,

P.O. Box 1657, Tallahassee, FL 32302-1657.

3.1.7

The “Claim Form” (Exhibit B) is the form attached to the Notice of Class Action

Settlement, which each individual Class Member must submit to the Administrator to become a

Settlement Class Member.

3.1.8

The “Claims Fund” is that portion of the Settlement Fund designated for

distribution to Eligible Claimants.

3.1.9

“The Class” means the class certified by the Court on March 13, 2007 (i.e.,

“Black employees at WASA who sought and were denied positions, career ladder promotions, or

4

Case 1:01-cv-00561-BJR Document 240 Filed 08/24/12 Page 12 of 61

other advancement, or whose advancement was delayed, or whose compensation was otherwise

affected by WASA’s alleged unlawful discrimination, from October 1996 through

December 2000 …”.). However, pursuant to the Parties’ stipulation, as ratified by the Court’s

August 25, 2009 order, individuals who were employed by WASA as either: (a) General

Manager; (b) Assistant General Manager; (c) Deputy General Manager; (d) General Counsel;

(e) In-House Counsel; or (f) Director of Human Resources, at any point between October 1, 1996

and December 31, 2000, are excluded from the class.

3.1.10

“Class Counsel” and “Plaintiffs’ Counsel” refer to The Law Office of

David A. Branch and Associates, PLLC and The Law Office of Alexander Hillery, PLLC,

jointly.

3.1.11

A “Class Member” is a person who is a member of the Class.

3.1.12

“Class Representative” and “Named Plaintiff” refer to Mr. Charles Taylor.

3.1.13

“Counsel for the Parties” and “Counsel” mean Class Counsel and Defense

Counsel, jointly.

3.1.14

“The Court” is the United States District Court for the District of Columbia.

3.1.15

”DC Water,” “Defendant,” “WASA” and “DC WASA” refer to the District of

Columbia Water and Sewer Authority.

3.1.16

“Defense Counsel” and “Counsel for DC Water” refer to Morgan, Lewis &

Bockius LLP.

3.1.17

The “Distribution Date” is the date that distributions from the Claims Fund are

made to Eligible Claimants by the Administrator.

5

Case 1:01-cv-00561-BJR Document 240 Filed 08/24/12 Page 13 of 61

3.1.18

The “Effective Date” is the date by which all of the following have occurred:

(1) the Court has entered an order finally certifying the Settlement Class;

(2) the Court has entered an order granting a motion for final approval of this

Agreement;

(3) the Court has entered an order and judgment dismissing the Civil Action

with prejudice; and

(4) the time for appeal has run without an appeal being filed, or any appeal

(including any requests for rehearing en banc, petitions for certiorari or appellate review) has

been finally resolved.

3.1.19

An “Eligible Claimant” is a Claimant who the Administrator determines to be

eligible to receive a distribution from the Claims Fund upon his or her timely submission of an

executed Claimant Release Form.

3.1.20

The “Execution Date” is the date that this Agreement has been signed by both

Parties and their respective Counsel.

3.1.21

“Mailed” means distributed via first-class mail, postage prepaid, or as otherwise

directed by the Court.

3.1.22

The “Named Plaintiff Release” and “Named Plaintiff Release Form” (Exhibit C)

mean the Release Agreement to be executed by the Named Plaintiff, Mr. Charles Taylor.

3.1.23

“Notice” means the Notice of Class Action Settlement (Exhibit A).

3.1.24

The “Opt-Out Deadline” is the date by which any Class Member who wants to be

excluded from this Agreement must submit an opt-out request to the Administrator.

3.1.25

“The Parties” are the Plaintiff Class, as represented by the Class Representative,

and the Defendant, DC Water.

6

Case 1:01-cv-00561-BJR Document 240 Filed 08/24/12 Page 14 of 61

3.1.26

The “Preliminary Approval Date” is the date that the Court enters the Preliminary

Approval Order.

3.1.27

The “Preliminary Approval Order” is an Order entered by the Court that

preliminarily approves this Agreement.

3.1.28

“Released Parties” means DC Water, its predecessor, parent, subsidiary and

affiliated companies, and in the case of all such entities, their respective past and present owners,

representatives, officers, directors, attorneys, agents, employees, insurers, successors and

assigns.

3.1.29

“The Settlement Class” means all members of the Class, except:

(1) Class Members who opt-out of this Agreement; and

(2) Class Members excluded from the Settlement Class pursuant to ¶8.1.2.2

(“Mandatory Exclusion: Prior Released Claims”), below, of this Agreement.

3.1.30

A “Settlement Class Member” is a person who is a member of the Settlement

Class.

3.1.31

The “Settlement Fund” is the fund to be administered by the Administrator, the

monies from which will be distributed to the Eligible Claimants and Class Counsel pursuant to

the terms of this Agreement.

4

JURISDICTION AND VENUE

4.1

The Parties agree that the Court has jurisdiction over the Parties and the subject

matter in this Action, and that venue is proper. The Court will retain jurisdiction over this

Action for the duration of this Agreement for the purpose of entering all orders, decrees and

judgments that may be necessary to enforce its provisions and implement the relief provided

herein.

7

Case 1:01-cv-00561-BJR Document 240 Filed 08/24/12 Page 15 of 61

5

DUTIES OF THE PARTIES PRIOR TO COURT APPROVAL

5.1

Preliminary Approval Order

5.1.1

Within ten (10) business days after the Execution Date, Class Counsel will move

the Court for entry of the Preliminary Approval Order. Said motion will seek an order that:

(1) vacates the existing injunctive relief class certification under Rule 23(b)(2)

and provisionally certifies the Settlement Class under Rule 23(b)(3);

(2) preliminarily approves this Agreement;

(3) approves the form and content of the proposed Notice of Class Action

Settlement (Exhibit A);

(4) approves the form and content of the proposed Claim Form, Named

Plaintiff Release Form, and Claimant Release Form (Exhibits B, C, and D, respectively);

(5) directs the mailing of the Notice and Claim Form to the Class Members;

(6) schedules a Fairness Hearing to determine whether this Agreement should

be finally approved;

(7) preliminarily enjoins all Class members, pending the outcome of the

Fairness Hearing, from:

(a) commencing, prosecuting or maintaining any claim already

asserted in, and encompassed by, this Action, and

(b) commencing, prosecuting or maintaining in any court or forum

other than the Court any claim, action or other proceeding that challenges, seeks review of, or

relief from any order, judgment, act, decision or ruling of this Court in connection with this

Agreement or otherwise in connection with this Action; and

(8) enters Administrative Order No. 1 (Exhibit E).

8

Case 1:01-cv-00561-BJR Document 240 Filed 08/24/12 Page 16 of 61

5.1.2

Class Counsel will submit this Agreement and any attachments to it with the

motion seeking entry of the Preliminary Approval Order.

5.2

CAFA Notice

5.2.1

Within ten (10) business days after this Agreement is filed with the Court,

DC Water will serve notices on the appropriate authorities pursuant to the Class Action Fairness

Act, 28 U.S.C. Section 1715.

6

NOTICE TO CLASS MEMBERS

6.1

Intent

6.1.1

The Parties intend to provide actual notice to each Class Member, to the extent

practicable.

6.2

Determining the Composition of the Class

6.2.1

Transmittal of Class Member Data to the Claims Administrator

6.2.1.1

Within ten (10) days after the Preliminary Approval Date, DC Water will provide

the Administrator with a list consisting of the name, social security number, employee

identification number, last known address, and last known telephone number of each Class

Member. DC Water will simultaneously provide the same list to Class Counsel, with the social

security numbers redacted. The social security numbers will be used only to locate and identify

Class Members, and the Administrator will keep them confidential.

6.2.2

Challenging Omission from the Class

6.2.2.1

Any person who believes that he or she was omitted from the Class erroneously

may contact the Administrator or Class Counsel and submit any information or documentation in

his or her possession to substantiate the claim that he or she should be included in the Class.

Any such submission must be made within sixty (60) days after the initial Notice is mailed to the

Class Members. 9

Case 1:01-cv-00561-BJR Document 240 Filed 08/24/12 Page 17 of 61

6.2.2.2

If any such claim is made, the Administrator will review any information or

documentation submitted and, if necessary, seek confirmation of the person’s employment and

positions held from the Defendant, through Defense Counsel. The Defendant will cooperate

with the Administrator to the extent reasonably necessary to enable the Administrator to make an

accurate determination as to whether the individual should or should not be included in the Class.

6.2.2.3

A person who was not initially included in the Class will not be subsequently

included unless he or she can establish good cause to be included. The Administrator’s

determination as to whether good cause to include the individual exists is final and not subject to

review by, or appeal to, any court, mediator, arbitrator or other judicial body, including, without

limitation, this Court.

6.2.2.4

If the Administrator determines that the individual should have been included in

the Class, the Administrator will promptly mail him or her a Notice and Claim Form.

6.3

Distributing the Notice and Claim Form

6.3.1

Pre-Distribution Address Verification

6.3.1.1

In order to provide the best notice practicable, before mailing the Notice and

Claim Form the Administrator may, in its discretion: (1) run the addresses provided by

DC Water through the Postal Service’s National Change of Address (“NCOA”) Database; and

(2) attempt to verify the addresses provided by performing address searches using public and

proprietary electronic resources that collect address and other data for such purposes.

10

Case 1:01-cv-00561-BJR Document 240 Filed 08/24/12 Page 18 of 61

6.3.2

Form of Notice and Claim Form

6.3.2.1

The document attached to this Agreement as Exhibit A will constitute the Notice

of Class Action Settlement, and the form attached to this Agreement as Exhibit B will constitute

the Claim Form, subject to Court approval.

6.3.3

Initial Mailing of the Notice

6.3.3.1

Within thirty (30) days after its receipt of the Class Member Data from the

Defendant pursuant to ¶6.2.1 (“Transmittal of Class Member Data to the Claims Examiner”),

above, the Administrator will mail the Notice and Claim form, in the form approved by the

Court, to each Class Member.

6.3.4

Second Mailing of Notice When First is Returned

6.3.4.1

If a Notice is returned to the Claims Administrator, the Administrator will attempt

to locate the Class Member. To that end, the Administrator may use any information provided

by DC Water, and it may engage third party vendors to assist in locating Class Members.

6.3.4.2

If the Administrator is able to locate a Class Member whose initial mailing was

returned, the Administrator will re-mail the Notice to him or her within five (5) business days.

In such an instance, the Second Notice will be identical to the Notice included in the initial

mailing, and the Second Notice will provide the Class Member not less than thirty (30) days to

respond thereto.

6.3.4.3

If the Administrator is unable to locate a Class Member whose first mailing was

returned, the Administrator will re-mail the notice to his or her last-known address.

6.3.4.4

Beginning thirty (30) days after the initial mailing of the Notice, the Claims

Administrator will provide Counsel, on a bi-weekly basis, with: (1) a copy of all Claim Forms

received; and (2) a list of those Class Members who have not been located.

11

Case 1:01-cv-00561-BJR Document 240 Filed 08/24/12 Page 19 of 61

6.3.5

Claims Administrator: Record Keeping and Due Diligence

6.3.5.1

The Administrator will maintain a record of its activities undertaken pursuant to

this Agreement, including but not limited to retaining copies of all Settlement Checks issued, and

any affidavits, attestations and documentation received or considered.

6.3.5.2

At least ten (10) days prior to any scheduled Fairness Hearing, the Administrator

will provide Class Counsel with an affidavit attesting to its mailing of the Notices and Claim

Forms, and all original documents received, including Claim Forms, Opt-Out requests and

objections, and all Notices that were returned and not delivered.

7

FAIRNESS HEARING AND OBJECTIONS

7.1

Fairness Hearing

7.1.1

In the motion seeking Preliminary Approval of this Agreement, the Parties will

request that the Court set a schedule and choose a date for the Fairness Hearing. To afford

sufficient time for the distribution of notices and claims forms, and the submission of requests

for exclusion (“Opt Outs”) and objections, the Parties will request that the Court not schedule the

Fairness Hearing sooner than one hundred fifty (150) days after the Preliminary Approval Date.

7.2

Objections

7.2.1

A Class Member who objects to this Agreement must submit his or her written

objection, stating the basis for the objection, to the Administrator within sixty (60) days of the

date that the Notice was mailed to him or her. A Class Member whose initial Notice was

returned and who is mailed a Second Notice must submit his or her objection within thirty (30)

days of the date that the Second Notice was mailed to him or her.

7.2.2

The deadline for filing an objection, and the requirement that an objection be in

writing and state the basis for the objection, will be set forth prominently in the Notice.

12

Case 1:01-cv-00561-BJR Document 240 Filed 08/24/12 Page 20 of 61

7.2.3

Class Members who fail to object to this Agreement in the manner specified

herein will be deemed to have waived any objection to this Agreement and will be precluded

from making any objection at the Fairness Hearing.

7.2.4

An attorney who seeks to represent a Class Member for the purpose of objecting

to this Agreement must file a Notice of Appearance with the Court and serve copies of said

Notice on Counsel at least ten (10) days before the Fairness Hearing.

7.2.5

Beginning thirty (30) days after the initial mailing of the Notice, the

Administrator will provide Counsel with a copy of all objections received on a bi-weekly basis.

Class Counsel will file copies of those objections with the Court before the Fairness Hearing.

8

MONETARY RELIEF

8.1

The Settlement Class

8.1.1

Composition of the Settlement Class

8.1.1.1

The Settlement Class will consist of all Class Members except:

(1) Class Members who opt-out of this Agreement; and

(2) Class Members who are excluded from the Settlement Class pursuant to

¶8.1.2.2 (“Mandatory Exclusion: Prior Released Claims”), below.

8.1.2

Exclusion from the Settlement Class

8.1.2.1

Voluntary Exclusion: Opting-Out

8.1.2.1.1 Any Class Member may exclude himself or herself from—or “opt-out” of—this

Agreement by timely filing a written request for exclusion with the Administrator pursuant to the

provisions of the Notice. The request for exclusion must be signed by the Class Member who

wants to opt-out of the Agreement.

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Case 1:01-cv-00561-BJR Document 240 Filed 08/24/12 Page 21 of 61

8.1.2.1.2 To be deemed timely filed, an exclusion request must be post-marked (if mailed)

or received (if delivered) by the deadline set forth in the Notice. The postmark will be the

exclusive means of determining whether a mailed opt-out request was timely filed.

8.1.2.1.3 Class members who timely file an opt-out request will be excluded from the

Settlement Class, and will not be entitled to receive any monetary award under this Agreement.

8.1.2.1.4 If a Class Member opts-out of this Agreement, the statute of limitations for his or

her individual claims will resume running on the date he or she submits an opt-out request to the

Administrator. The fact that submission of an opt-out request will cause the resumption of the

running of the statute of limitations on any individual claims will be set forth prominently in the

Notice.

8.1.2.1.5 A Class Member may rescind his or her opt-out request. To be effective, a

request to rescind a filed opt-out request must be in writing, signed by the Class Member, and

received by the Administrator by the date set forth in the Notice.

8.1.2.1.6 Beginning thirty (30) days after the mailing of the initial Notice, the

Administrator will provide Counsel with a copy of all opt-out requests received on a bi-weekly

basis. Class Counsel will file copies of all opt-out requests received with the Court before the

Fairness Hearing.

8.1.2.2

Mandatory Exclusion: Prior Released Claims

8.1.2.2.1 A Class Member who brought a claim of race discrimination and executed a

release of that claim that encompasses the entire period from October 1, 1996 to

December 31, 2000 is excluded from the Settlement Class.

8.1.2.2.2 A Class Member who brought a claim of race discrimination and executed a

release of that claim that encompasses less than the entire period from October 1, 1996 to

14

Case 1:01-cv-00561-BJR Document 240 Filed 08/24/12 Page 22 of 61

December 31, 2000 is not excluded from the Settlement Class, but will receive a pro rata share of

the amount that he or she would have received from the Claims Fund but for the release.

8.1.2.2.3 A Class Member will not be excluded from the Settlement Class under this

Section because he or she:

(1) signed a general release (e.g., a release of “any and all claims,” or a

release of “all claims that were brought or could have been brought”);

(2) signed a release without having brought a claim of race discrimination

(e.g., as a result of a reduction-in-force); or

(3) signed a release as a result of bringing a claim or claims the gravamen of

which was other than a claim of race discrimination (e.g., as the result of bringing a sex

discrimination or sexual harassment claim), even if the release purports to release a claim or

claims of race discrimination.

8.1.2.3

Identifying Excluded Class Members

8.1.2.3.1 When it provides the Administrator and Class Counsel with the information required by ¶6.2.1 (“Transmittal of Class Member Data to the Claims Administrator”), above, DC Water will also provide the Administrator and Class Counsel with:
(1) a list of Class Members that DC Water contends should be excluded from the Settlement Class pursuant to this Section; and
(2) copies of signed releases of claims and any other documents that support DC Water’s contention. 8.1.2.3.2 Within fourteen (14) days of Class Counsel’s receipt of DC Water’s list, the Parties will meet and confer.

15

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8.1.2.3.3 If Class Counsel does not object to the exclusion of a particular Class Member,

that Class Member will be excluded from the Settlement Class, and Counsel will so notify the

Administrator.

8.1.2.4

Dispute Resolution

8.1.2.4.1 If Class Counsel objects to the exclusion of a particular Class Member, the Parties

will make their best, good-faith effort to expeditiously resolve the dispute.

8.1.2.4.2 If, after making their best, good-faith effort to expeditiously resolve the dispute,

the Parties cannot agree, they will, as soon as is practicable, submit the issue to the

Administrator.

8.1.2.4.3 If the issue is submitted to the Administrator, the Administrator will exclude the

Class Member from the Settlement Class if the documentation submitted by DC Water clearly

establishes that the Class Member should be excluded. The Administrator will promptly notify

Counsel of its determination. The Administrator’s determination is final and unreviewable.

8.1.2.4.4 The Administrator will promptly notify any Class Member who is excluded from

the Settlement Class under this Section of his or her exclusion from the Settlement Class and the

basis for it.

8.2

The Settlement Fund

8.2.1

No later than ten (10) days after the Preliminary Approval Date, DC Water will

pay by wire transfer or otherwise transmit to the Administrator the sum of Two Million Eight

Hundred Eighty-Five Thousand dollars ($2,885,000). The monies so transferred, including the

interest subsequently earned thereon, if any, will constitute the Settlement Fund.

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8.3

Establishing the Settlement Fund

8.3.1

The $2,885,000 paid or otherwise transmitted from DC Water to the

Administrator will be placed in an account (the “Settlement Fund Account”) established by the

Administrator, as approved by Counsel, and managed by the Administrator, under the Court’s

supervision. The Settlement Fund Account may be interest bearing or non-interest bearing, at

the Administrator’s discretion.

8.3.2

The Administrator will act to establish and qualify the Settlement Fund Account

as a “Qualified Settlement Fund” pursuant to Section 468B of the Internal Revenue Code of

1986, as amended, and Treas. Reg. Section 1.468B-1, et seq., and to maintain that status.

8.4

Authority Over the Settlement Account

8.4.1

The Administrator is the only entity authorized to make withdrawals or payments

from the Settlement Fund Account. Once it has been established, DC Water will have no

authority over or responsibility or liability for the administration of the Settlement Fund

Account.

8.5

Purpose of the Settlement Fund

8.5.1

The Two Million Eight Hundred Eighty-Five Thousand Dollar ($2,885,000)

payment is made in full satisfaction of the claims of the Named Plaintiff and the Class Members,

as well as for other purposes identified in this Section, and includes:

(1) payment of Awards to Eligible Claimants, and of the Service Payment to

the Named Plaintiff, as provided herein;

(2) attorneys’ fees, including fees incurred in connection with securing court

approval of this Agreement, managing the claims process, and monitoring the implementation of

this Agreement;

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(3) all litigation costs, as provided herein; and

(4) the employee’s share of applicable payroll and federal, state and local

income taxes.

8.5.2

The $2,885,000 payment does not include costs in connection with the

establishment and administration of the Settlement Fund including, but not limited to, costs

related to issuing the Notice, claims processing, securing legal advice relating to the

establishment and administration of the Qualified Settlement Fund and the tax treatment and tax

reporting of awards to claimants, preparing tax returns (and the taxes associated with such tax

returns as defined below), and the Administrator’s fees and expenses, which costs will be paid by

DC Water pursuant to ¶9.1.9 (“Administrator’s Costs and Expenses To Be Paid By DC Water”),

below.

8.5.3

Further, the $2,885,000 payment to the Settlement Fund does not include

DC Water’s share of taxes and contributions (i.e., FUTA, SUTA, FICA and Medicare), which

will be paid separately by DC Water to the Administrator. Upon its receipt of notice from the

Administrator pursuant to ¶9.1.5 (“DC Water to Remit Its Share of Taxes and Contributions to

the Administrator”), below, DC Water will remit to the Administrator any required tax and

contribution payment.

8.6 8.6.1

Claim Filing Procedures Submission of Claims Forms to the Administrator

8.6.1.1

Class Members who seek payment from the Claims Fund under this Agreement

must submit a Claim Form to the Administrator, post-marked (if mailed) or received (if faxed or

delivered) by the deadline set forth in the Notice. The Claim Form is to be fully or substantially

completed, if possible. A Class Member’s failure to timely submit a substantially complete

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Claim Form to the Administrator will bar him or her from receiving payment from the Claims Fund; however, as provided in ¶8.6.5 (“Administrator’s Discretion to Excuse Late or Incomplete Filings and to Extend Filing Deadline”), below, the Claims Administrator may, in its sole discretion, excuse the late or incomplete filing of a Claim Form, or extend the deadline for filing the Claim Form, for good cause.

8.6.2

Administrator and Class Counsel to Assist Settlement Class Members in Submitting Claim Forms

8.6.2.1

The Administrator will maintain a toll-free telephone number to respond to

requests from Class Members for assistance in completing and filing Claim Forms. Class

Counsel will also be reasonably available to answer questions from and provide assistance to

Class Members who request assistance in completing and submitting their Claim Forms. This

information will be prominently set forth in the Notice.

8.6.3

Class Members to Promptly Notify the Administrator of Any Change of Address

8.6.3.1

Class Members must promptly notify the Administrator of any change of address.

The responsibility of Class Members to so notify the Administrator will be clearly set forth in the

Notice. The failure of a Class Member to promptly notify the Administrator of a change of

address may result in the forfeiture of any monetary award he or she might be entitled to receive

under this Agreement.

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8.6.4

Administrator to Determine Eligibility for and Amount of Payment to Claimants

8.6.4.1

The Administrator will:

(1) determine which Claimants are eligible to receive a monetary award from

the Claims Fund;

(2) determine how much each Claimant is eligible to receive, pursuant to the

Allocation Formula set forth herein; and

(3) transmit that information to Counsel. Counsel will treat the information as

confidential.

8.6.5

Administrator’s Discretion to Excuse Late or Incomplete Filings and to Extend Filing Deadline

8.6.5.1

The Administrator may, in its discretion, and for good cause:

(1) excuse the late or incomplete filing of any document by a Class Member;

and

(2) grant any individual Class Member or group of Class Members an

extension of time, not to exceed sixty (60) days, to file or complete any document.

8.6.5.2

The Administrator’s determination of what constitutes “good cause” is at its sole

discretion, and that determination is final and not subject to review by, or appeal to, any court,

mediator, arbitrator or other judicial body, including, without limitation, this Court.

8.7

The Claims Fund

8.7.1

The Administrator will reserve One Million Nine Hundred Thousand Dollars

($1,900,000) from the Settlement Fund to be distributed to Eligible Claimants, which sum will

constitute the Claims Fund. The Claims Fund, together with the interest generated by the entire

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Settlement Fund, if any, will be allocated to Eligible Claimants pursuant to the Allocation Formula set forth in Section 8.8 (“Allocation Formula”), below.

8.8

Allocation Formula

8.8.1

The payment to each Eligible Claimant will be based on the following allocation

formula:

8.8.2

The allocation will be based on a “points” system, consisting of a total of 3,000

equally-valued points. As a baseline for the distribution of these points, each Claimant will

receive one (1) point, which will leave approximately 2,000 points for further allocation

(assuming all Settlement Class Members timely submit Claims Forms).

8.8.3

Each Claimant is eligible to receive additional points based on:

(1) the ratio of his or her potential back pay loss in comparison to the Class’

potential back pay losses based on the regression model from Table 1 (with pay grade control) of

Dr. Lanier’s expert report submitted in this Action, which criteria will be used to allocate

seventy-five percent (75%) of the unallocated points; and

(2) the nature and severity of his or her particular allegations of pay

discrimination, emotional injury and economic loss, which criteria will be used to allocate the

remaining twenty-five percent (25%) of the unallocated points. This information will be

solicited on the Claim Form.

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8.8.3.1

To assess these criteria, the Administrator will consider the credibility of the

Claimant’s allegations, (taking into account, e.g., whether there are sufficient concrete details

offered and whether there is any documentation submitted to support the allegations), the

character, severity and duration of the alleged discrimination, and the extent to which there are

credible or documented allegations of serious psychological, economic, consequential or

incidental harms resulting from the alleged discrimination.

8.9

Determination of the Administrator is Final and Unreviewable

8.9.1

The Administrator’s determination with respect to eligibility, point allocation, the

amount to be paid to each Eligible Claimant, and any other matter with which the Administrator

is vested with discretion pursuant to the terms of this Agreement, is final and not subject to

review by, or appeal to the Court or any other court, mediator, arbitrator or other body.

8.9.2

DC Water and Counsel are not responsible, and may not be held liable, for any

determination reached or discretion exercised by the Administrator.

8.10

Payment to Eligible Claimants

8.10.1

Notice of Awards to Claimants

8.10.1.1

As soon as practicable after the Final Approval Date, the Administrator will send

each Eligible Claimant a Notice of Award specifying the amount of the payment that he or she is

eligible to receive from the Claims Fund, and a Claimant Release form. Each Claimant Release

Form will advise the recipient that he or she has sixty (60) days from the date of the Notice of

Award to return the signed Release Form to the Administrator.

8.10.2

Distribution of Settlement Checks

8.10.2.1

As soon as practicable after the deadline for the receipt of the Claimant Release

Forms, the Administrator will distribute a settlement check to each Eligible Claimant in the

amount that the Administrator determines he or she is entitled to receive 22

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8.10.3

Deceased Class Members

8.10.3.1

If a Class Member who is otherwise eligible to receive a monetary award under

this Agreement is deceased at the time of the distribution of such awards, the Administrator,

upon receipt of sufficient proof of the Class Member’s death, will pay the monetary award to

which the deceased Class Member was entitled to his Estate, provided a claim for such payment

is made to the Administrator by the deadline for the receipt of Claimant Release Forms. If any

such payment is made, the Settlement Check will be made payable to “The Estate of” the

deceased Class Member

8.10.3.2

To receive payment, a duly authorized representative of the deceased Class

Member’s Estate must sign a Claimant Release Form on behalf of the Estate.

8.10.3.3

The Claims Administrator may accept an individual as a duly authorized

representative of the deceased Class Member’s Estate if he or she: (1) presents legal

documentation to that effect, or (2) attests under penalty of perjury that he or she is a duly

authorized representative of said Estate.

8.10.3.4

To the extent practicable, the Administrator will require and obtain positive

identification from any person to whom a Settlement Check is issued on behalf of a deceased

Class Member’s Estate pursuant to this Section.

8.10.4

Settlement Checks

8.10.4.1

Settlement Checks Valid for One Hundred Eighty Days

8.10.4.1.1 All Settlement Checks will be valid for one hundred eighty (180) days from the

date appearing thereon, and must be negotiated within that time. Each Settlement Check will

prominently state on its face that it must be negotiated within one hundred eighty (180) days. If

it is practicable to do so, the Administrator will cause the exact expiration date of each settlement

check to appear prominently thereon. 23

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8.10.4.1.2 Additionally, each Settlement Check will be accompanied by a cover letter

prominently stating that the check must be cashed within one hundred eighty (180) days of the

date appearing thereon or the check will be void.

8.10.4.2

Failure to Negotiate Settlement Check

8.10.4.2.1 If a Settlement Check is returned to the Administrator, the Administrator will, as

soon as is practicable following its receipt of the returned check, use its best efforts to locate the

person to whom the check was distributed. If the Administrator locates him or her, it will

promptly re-distribute the Settlement Check to him or her at the new address.

8.10.4.2.2 All Settlement Checks that are returned from Eligible Claimants who cannot be

located by the best efforts of the Administrator will be held by the Administrator until the day

after the check’s expiration date. If the designated recipients of the checks do not claim them

from the Administrator by that date, the funds will be returned to the Settlement Fund and

distributed pursuant to ¶8.11 (“Distribution of Funds Remaining in the Settlement Fund”),

below.

8.10.4.2.3 If any Eligible Claimant does not negotiate his or her Settlement Check within

one hundred eighty (180) days from the date appearing thereon, he or she will be ineligible for,

and forever barred from receiving, monetary relief under this Agreement, and the unclaimed

funds will be distributed pursuant to ¶8.11 (“Distribution of Funds Remaining in the Settlement

Fund”), below.

8.11

Distribution of Funds Remaining in the Settlement Fund

8.11.1

As soon as is practicable, but not earlier than ninety (90) days or later than one-

hundred eighty (180) days after the deadline for Settlement Checks to be negotiated has expired,

the Administrator will distribute any undistributed funds that remain in the Settlement Fund

equally to the Eligible Claimants. However, if the remaining funds are, in Counsel’s considered 24

Case 1:01-cv-00561-BJR Document 240 Filed 08/24/12 Page 32 of 61

judgment, too de minimus to justify such a distribution, the parties will jointly seek the Court’s

permission to distribute the remaining funds cy pres to the District of Columbia Legal Aid

Society.

8.12

Payment to the Named Plaintiff

8.12.1

Named Plaintiff to Receive Service Payment in Lieu of Award Predicated on the Allocation Formula

8.12.1.1

The Formula set forth in Section 8.8 (“Allocation Formula”), above, does not

apply to the Named Plaintiff, and he will not be eligible to receive an award pursuant to that

formula.

8.12.1.2

In lieu of receiving such an award, the Named Plaintiff will receive a Service

Payment of Sixty Thousand Dollars ($60,000) in recognition of his service to the Class, provided

he timely executes and submits a Claim Form and the Named Plaintiff Release Form.

8.12.2

Distribution of the Named Plaintiff Release Form

8.12.2.1

The Administrator will provide the Named Plaintiff with the Named Plaintiff

Release Form when the Claimant Release Forms are distributed. The Named Plaintiff Release

Form will provide the Named Plaintiff sixty (60) days from the date thereon to sign the Release

and return it to the Administrator, which deadline will be prominently set forth on the Release

Form.

8.12.3

Distribution of Settlement Check to the Named Plaintiff

8.12.3.1

As soon as practicable after the Administrator receives the executed Named

Plaintiff Release Form from the Named Plaintiff, the Administrator will distribute a settlement

check to the Named Plaintiff in the amount provided herein.

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9

TAXES

9.1

Duties and Responsibilities of the Administrator

9.1.1

Establishing the Qualified Settlement Fund

9.1.1.1

Pursuant to Section 8.3 (“Establishing the Settlement Fund”), above, the

Administrator, in cooperation with the Parties, will establish the Settlement Fund as a Qualified

Settlement Fund within the meaning of Section 468B of the Internal Revenue Code of 1986, as

amended, and Treas. Reg. Section 1.468B-1, et seq., and will administer the Fund under the

Court’s supervision. The Parties agree to cooperate to ensure such tax treatment and will not

take a position in any filing or before any tax or other authority inconsistent with such treatment.

9.1.2

Administrator is Trustee of Settlement Fund

9.1.2.1

The Administrator will serve as trustee of the Settlement Fund, and will act as a

fiduciary with respect to the handling, management, and distribution of the monies therein,

including the handling of tax-related issues and payments.

9.1.3

Payment and Reporting of Federal, State and Local Taxes

9.1.3.1

Awards to Eligible Claimants will be subject to applicable tax withholding and

reporting.

9.1.3.2

The Administrator will be responsible for withholding, remitting and reporting

each Eligible Claimant’s share of the payroll taxes from the Claims Fund. Except with respect

to the Employer’s Payroll Tax Payment, the Administrator will be responsible for withholding,

from any distribution from the Claims Fund, the required federal, state and local employment

taxes and withholdings, including but not limited to federal and state income tax withholdings,

FICA, and Medicare.

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9.1.3.3

The Administrator will comply with all federal, state, local, and other reporting

requirements, including any required reporting of attorneys’ fees and other costs and expenses.

9.1.4

Administrator to Determine the Tax Allocation of Distributions

9.1.4.1

The Administrator will determine the allocation, for tax purposes, of the

distribution made to each Eligible Claimant (e.g., as wages, interest, compensatory damages,

etc.), based on the submissions received from the Claimants and the principles set forth in Treas.

Reg. §1.468B-4, as if DC Water made such payments directly to the Claimants, and the

Administrator will withhold such taxes from all distributions as are legally required. The

Administrator will exercise its discretion with respect to that allocation conservatively, so as to

minimize Eligible Claimants’ risk of incurring additional or unanticipated taxes or penalties due

to inadequate withholding.

9.1.5

DC Water to Remit Its Share of Taxes and Contributions to the Administrator

9.1.5.1

The Administrator will notify DC Water of its share of all taxes and contributions

(i.e., FUTA, SUTA, FICA and Medicare) (the “Employer Payroll Tax Payment”), and DC Water

will, within thirty (30) business days of receiving such notice, remit that amount to the

Administrator for payment to appropriate taxing authorities.

9.1.6

Administrator to Remit Payroll Tax Payment

9.1.6.1

The Administrator will be responsible for the timely reporting and remittance of

the Employer Payroll Tax Payment to the appropriate taxing authorities, and will indemnify DC

Water for any penalty imposed upon DC Water due to the Administrator’s incorrect calculation

or late payment of any taxes, subject to the terms of the contract between the Administrator and

DC Water.

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9.1.7

Interest

9.1.7.1

Subject to the Administrator’s obligation to comply with applicable laws, the

Parties anticipate that any amounts designated as interest will not be subject to withholding and

will be reported, if required, to the IRS on Form 1099-INT.

9.1.8

Other Taxes Payable from the Claims Fund

9.1.8.1

The Administrator will satisfy any tax obligations not otherwise addressed herein

from the Claims Fund.

9.1.8.2

All taxes (including any estimated taxes) arising from income earned by the

Settlement Fund, including any taxes that may be imposed on DC Water as a result of income

earned by the Settlement Fund during any period in which the Settlement Fund does not qualify

as a “Qualified Settlement Fund” for federal and state income tax purposes, will be paid out of

the Claims Fund.

9.1.9

Administrator’s Costs and Expenses To Be Paid By DC Water

9.1.9.1

All expenses and costs incurred in connection with the implementation of the

Administrator’s duties as set forth in this Section including, but not limited to, the cost of tax

attorneys and/or accountants, mailing and other distribution costs, and expenses relating to filing

or failing to file any returns described herein or otherwise required to be filed will be paid by DC

Water.

9.1.10

Mutual Cooperation

9.1.10.1

The Parties agree to cooperate with the Administrator, any tax attorneys and

accountants employed or retained by the Administrator, each other, and their respective tax

attorneys and accountants to the extent reasonably necessary to carry out the provisions set forth

in this Section.

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9.1.11

Defendant Has No Further Obligation to, or Liability or Responsibility for the Settlement Fund

9.1.11.1

Other than DC Water’s responsibility to remit the employer’s share of payroll

taxes and withholdings to the Administrator, pursuant to ¶9.1.5 (“DC Water to Remit Its Share of

Taxes and Contributions to the Administrator”), above, DC Water will have no withholding,

reporting or any other tax reporting or payment responsibilities with regard to the Settlement

Fund or its distribution.

9.1.11.2

The Defendant will have no obligation to, or liability or responsibility for the

administration of the Settlement Fund, the determination of any formulas for disbursement, or

the disbursement of any monies from the Settlement Fund except:

(1) its obligation to pay the settlement amount of $2,885,000 no later than ten

(10) days after preliminary approval of this Agreement, pursuant to ¶8.2 (“The Settlement

Fund”), above;

(2) its obligation to remit the Employer Payroll Tax Payment to the

Administrator, pursuant to ¶9.1.5 (“DC Water to Remit Its Share of Taxes and Contributions to

the Administrator), above;

(3) its obligation to pay reasonable costs and expenses related to the Claims

Administrator’s implementation of the Agreement, pursuant to ¶9.1.9 (“Administrator’s Costs

and Expenses to be Paid By DC Water”), above, and Section 10 (“Administrator’s Fees, Costs

and Expenses”), below; and

(4) its obligation to provide the information necessary for Settlement

administration to the Administrator, Settlement Monitor, and Class Counsel as set forth in this

Agreement.

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9.1.12

Record Keeping and Access to Distribution Information

9.1.12.1

The Administrator will transmit a copy of the distribution plan and allocation list

to Counsel at least five (5) days before the Settlement Checks are distributed.

9.1.12.2

The Administrator will maintain copies of all records related to its administration

of this Agreement, including copies of all Claim Forms and supporting documentation, releases,

opt-out requests and objections received, and copies of all checks issued, for a period of five (5)

years.

9.1.12.3

The Administrator will maintain all filed original, executed Releases until the

expiration of the Settlement Fund, provided, however, that the Administrator will surrender any

original individual Release upon order of the Court.

9.1.12.4

Access to individual allocation information may be had only upon written notice

to Counsel and a showing of good cause (e.g., actual or threatened litigation by a Claimant), or

upon order of the Court. Any dispute as to whether good cause exists for such a disclosure will

be resolved through the Dispute Resolution process set forth herein.

10

ADMINISTRATOR’S FEES, COSTS AND EXPENSES

10.1

DC Water will pay all reasonable fees, costs and expenses related to the

Administrator’s implementation and administration of this Agreement.

11

NULLIFICATION OR TERMINATION OF THIS AGREEMENT

11.1

Agreement Not Approved, or Approval is Reversed or Modified

11.1.1

If this Agreement is not approved by the Court, or if following approval by the

Court such approval is reversed or substantively modified, or if for any other reason this

Agreement fails to become effective in accordance with its material terms, this Agreement is

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terminated, provided the Defendant notifies the Administrator, Class Counsel, and the Court of its termination within ten (10) days after the event giving rise to its termination.

11.2

DC Water’s Right to Terminate This Agreement, or Receive an Opt-Out

Credit

11.2.1

DC Water’s Right to Terminate this Agreement

11.2.1.1

If the number of Class Members who duly request exclusion from the Settlement

Class equals or exceeds fifty (50), DC Water may, within thirty (30) days after the Opt-Out

Deadline, withdraw from and fully terminate this Agreement by providing written notice to the

Administrator, Class Counsel and the Court.

11.2.2

DC Water’s Option to Receive an Opt-Out Credit in Lieu of Terminating This Agreement

11.2.2.1

If the number of Class Members who duly request exclusion from the Settlement

Class equals or exceeds fifty (50), DC Water may, at its option, take an Opt-Out Credit in lieu of

terminating this Agreement. If DC Water exercises its option to take the Opt-Out Credit, the

Opt-Out Credit it will receive is a pro rata share of the Claims Fund based on the number of

Class Members who have opted out in excess of fifty, in relation to the total number of Class

Members.

11.2.3

Exercising the Option to Take An Opt-Out Credit

11.2.3.1

To exercise its option to take the Opt-Out Credit, DC Water must so notify the

Court, the Administrator and Class Counsel within thirty (30) days after the Opt-Out Deadline.

11.2.4

Payment of the Opt-Out Credit

The Administrator will pay DC Water any sum that it is entitled to receive pursuant to the

terms of this Section from the Claims Fund within thirty (30) days after it receives notice of DC

Water’s intent to exercise its option to receive the Opt-Out Credit.

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11.3

Effects of Termination

11.3.1

Return of Settlement Fund to DC Water

11.3.1.1

If this Agreement is terminated, the Administrator will return the Settlement

Fund, including any interest earned through the date that the Administrator receives notice of the

termination, to DC Water within thirty (30) days after the Administrator’s receipt of such notice.

11.3.1.2

This Section will survive the termination of this Agreement, and is enforceable

notwithstanding any provision in this Agreement to the contrary.

11.3.2

No Waiver of Claims of Defenses

11.3.2.1

If this Agreement is terminated, each party may prosecute or defend this Action as

if the Agreement never existed, and no party will be deemed to have waived any claims,

objections, rights, defenses, legal arguments or positions, including, but not limited to, claims or

objections to class certification or decertification and claims and defenses on the merits, and this

Agreement will not be considered an admission of liability by DC Water. Neither this

Agreement, nor the Court’s preliminary or final approval of it, will be admissible in any court for

any purpose other than the enforcement of this Settlement Agreement.

11.3.3

Parties Restored to the Status Quo Ante

11.3.3.1

If this Agreement is terminated, the Parties will be restored to the litigation

positions they respectively occupied in this Action before they entered into this Agreement, and

the terms and provisions of this Agreement may not be used in this action or in any proceeding

for any purpose other than the enforcement of this Agreement.

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11.3.4

Judgments and Orders to be Vacated

11.3.4.1

If this Agreement is terminated, the Parties will jointly move the Court to vacate,

nunc pro tunc, any judgments or orders entered in accordance with or pursuant to its terms, and

the litigation of this Action will resume as if there had been no Agreement.

12

RELEASES

12.1

Claimant Releases

12.1.1

Executed, Original Claimant Release Forms Must be Submitted to the Administrator

12.1.1.1

Each Claimant must timely submit, by mail or delivery, an original, executed

Claimant Release Form to the Administrator to receive payment from the Claims Fund.

12.1.2

Claims Released By Claimants

12.1.2.1

As consideration for receiving payment from the Claims Fund, each Claimant

must execute a Claimant Release Form that waives, releases and surrenders the following claims:

(1) Any and all claims of race discrimination raised against the Released

Parties in the Second Amended Complaint, and

(2) Any and all claims of race discrimination, known or unknown, that the

Claimant has or may have had against the Released Parties under Section 1981, Title VII, and

any other federal, state and local law, through December 31, 2007.

12.2

Named Plaintiff Release

12.2.1

Executed, Original Named Plaintiff Release Must Be Submitted to the Administrator

12.2.1.1

To receive his designated Service Payment as provided in this Agreement, the

Named Plaintiff must timely submit, by mail or delivery, an original, executed Named Plaintiff

Release Form to the Administrator.

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12.2.2

Claims Released by the Named Plaintiff

12.2.2.1

The Named Plaintiff Release is more expansive than the release to be executed by

the Claimants. The Named Plaintiff Release is a general release of all claims of any nature

against the Released Parties under federal, state and local laws through the date that the Named

Plaintiff Release is executed, except for those claims that he specifically reserves in ¶12.2.3

(“Claims Reserved by the Named Plaintiff”), below.

12.2.3

Claims Reserved by the Named Plaintiff

12.2.3.1

Notwithstanding any other provision of this Agreement, The Named Plaintiff

specifically reserves and does not waive:

(1) the claims set forth in his pending case in the District of Columbia

Superior Court against DC Water (captioned Charles Taylor v. District of Columbia Water &

Sewer Authority, et al., Civil Action No: 0500002297); and

(2) any claims contained in or resulting from his pending EEOC Charge

(No. 570-2012-01016).

12.3

Releases Are a Material Part of this Agreement

12.3.1

The terms of the Named Plaintiff Release and the Claimant Releases are a

material part of this Agreement and are incorporated herein as if fully set forth in this

Agreement. If the Releases are not finally approved by the Court, or this Agreement does not

become effective for any reason or is terminated, the Releases will terminate nunc pro tunc and

be of no force and effect.

12.4

Administrator to Deliver Copies of Executed Releases

12.4.1

The Administrator will deliver copies of all executed releases it receives to DC

Water on a weekly basis.

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13

FAILURE TO OPT OUT OR FILE CLAIM FORM DEEMED A RELEASE

OF CLAIMS

13.1

Class Members who do not timely opt out of this Agreement or timely file a

Claim Form and executed Claimant Release Form are, upon the Distribution Date of this

Agreement, ineligible to receive any monetary distribution from the Claims Fund, and will be

deemed, as of that date, to have waived, released and surrendered any and all claims of race

discrimination raised in the Civil Action.

14

NO ADMISSION, NO DETERMINATION

14.1

This Settlement Agreement does not constitute, is not intended to constitute, and

is not to be deemed to constitute an admission by any Party as to the merits of the Opposing

Party’s claims or defenses. By entering into this Agreement, neither DC Water nor any Released

Party admits or concedes liability, expressly or impliedly. D.C. Water expressly denies that it

has in any way violated Section 1981, Title VII, parallel state and local laws prohibiting race

discrimination, the common law of any jurisdiction, or any other federal, state or local laws,

statutes, ordinances, regulations, rules or executive orders, or any obligations or duties at law or

in equity. Neither this Court, nor any other court has made any findings or issued any opinion

with respect to the merits of either Party’s claims or defenses in this case.

14.2

Nothing in this Agreement, or any action taken in implementation thereof, or any

statements, discussions, communications, or materials prepared, exchanged, issued or used

during the course of the mediation or negotiations leading to this Agreement, or the result of the

claims process established under this Agreement, may be introduced, used or admitted in this

case or any other judicial, arbitral, administrative, investigative or other proceeding as evidence

of discrimination or retaliation in violation of Section 1981, Title VII, parallel state and local

laws prohibiting race discrimination, the common law of any jurisdiction, or any other federal,

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state or local laws, statutes, ordinances, regulations, rules or executive orders, or any obligations

or duties at law or in equity.

14.3

Notwithstanding the foregoing, this Agreement may be admitted as evidence in

any proceeding in this Court or in mediation to enforce or implement any provision in it, and to

enforce or implement any orders or judgments entered in connection with it.

15

INADMISSIBILITY OF FACT OF AWARD OR NON-AWARD

15.1

Except to the extent that it would constitute a set-off in an action for damages

claimed for any period covered by this Agreement, neither the fact nor the amount of any award,

nor the fact of any non-award, will be admissible in any proceeding for any purpose other than to

enforce the terms of this Agreement including, but not limited to, the Releases, nor will the same

be deemed to be evidence of the merit of any claim or defense.

16

PROGRAMMATIC RELIEF

16.1

Duration

16.1.1

The programmatic relief set forth in this Agreement will remain binding on the

Parties and their agents and successors for a period of three (3) years following the Effective

Date.

16.2

Commitment to Non-Discrimination

16.2.1

Within six months of the Effective Date of this Agreement, DC Water will

provide to all employees a written statement of DC Water’s commitment to equal employment

opportunity, issued by its General Manager.

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16.3

Publication and Distribution of EEO Policy

16.3.1

Within six months of the Effective Date of this Agreement, DC Water will:

(1) provide all employees with a copy of its EEO policy;

(2) post copies of its EEO policy prominently in common areas of the

workplace where they will be visible to employees during the workday;

(3) post copies of its EEO policy on DC Water’s intranet website; and

(4) adopt and implement a policy of distributing copies of its EEO policy to:

(A) all new employees upon hire; and

(B) all new managers and supervisors upon promotion to a

management or supervisory position, or during management training.

16.3.2

DC Water’s employees will be required to submit an acknowledgment of receipt

of the EEO policy.

16.4

No Retaliation

16.4.1

DC Water will not retaliate against any Class Member because he or she:

(1) complained of or opposed discrimination on the basis of race at DC Water;

(2) testified, furnished information or participated in any formal or informal

investigation, proceeding, or hearing in connection with this Action; or

(3) sought or received any monetary or non-monetary relief under this

Agreement.

16.5

Publication and Distribution of Compensation Policies

16.5.1

Within six months of the Effective Date of this Agreement, DC Water will: (1) provide a copy of its compensation policies to all of its employees;
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(2) make copies of its compensation policies available to employees on demand at its Human Capital Management Office (or its functional equivalent), and post notices prominently in common areas of the workplace notifying employees of that fact;
(3) post a copy of its compensation policies on its intranet website; and (4) provide copies of its compensation policies to all new hires upon hire.

16.6

Mandatory Diversity and EEO Training

16.6.1

Within one year of the Effective Date of this Agreement, DC Water will:

(1) implement and conduct—or contract with an external entity that will

implement and conduct—a mandatory EEO and Diversity training program for all DC Water

employees, and ensure that all DC Water employees have received such training within three (3)

years of the Effective Date;

(2) expand and enhance its existing training programs to emphasize its

procedures for ensuring compliance with its EEO policies, and use its best efforts to ensure that

its employees:

(A) are trained to identify violations of DC Water’s EEO policies and

to know the proper procedures for receiving, processing, investigating and resolving complaints

of such violations, and

(B) understand their responsibility and obligation to report, properly

investigate, and respond to any alleged violations of DC Water’s EEO policies.

16.6.2

DC Water will maintain written records with respect to the specifics of the

training offered in and attendance at the mandatory EEO and diversity training program for four

years.

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16.7

Complaint Procedures and Complaint Tracking System

16.7.1

Enhanced Awareness of Complaint Procedures

16.7.1.1

Within one year of the Effective Date of this Agreement, DC Water will enhance

its existing EEO training program and use its best efforts to ensure that all employees know DC

Water’s complaint procedures, their obligation to adhere to DC Water’s EEO policies, and their

obligation to identify and report potential violations by utilizing DC Water’s internal complaint

procedures.

16.7.2

Complaint Tracking System

16.7.2.1

Within one year of the Effective Date of this Agreement, DC Water will develop,

implement and maintain a system, consisting of a database or spreadsheet, to record and track all

internal complaints of compensation discrimination on the basis of race, and the status and

resolution of each complaint.

16.7.2.2

The tracking system (“the System”) will specifically identify any complaints or

allegations of compensation discrimination.

16.7.2.3

Information to be entered into the System will include:

(1) the employee identification number of the complainant, the employee’s

job classification, and department;

(2) the factual allegations that form the basis for the complaint, if known;

(3) the results of any investigation undertaken in response to the complaint;

and

(4) the corrective action taken, if any.

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16.7.2.4

The information contained in the System will not be subject to any reporting

obligation under this Agreement.

16.8

Human Capital Management Staff

16.8.1

DC Water will use its best efforts to ensure that its Human Capital Management

staff (or its functional equivalent) knows the requirements of:

(1) District of Columbia anti-discrimination and anti-retaliation statutes and

policies;

(2) federal EEO, anti-discrimination and anti-retaliation statutes and policies;

and

(3) DC Water’s own anti-discrimination and anti-retaliation policies.

16.9

Development and Maintenance of Voluntary Affirmative Action Program

16.9.1

By December 31, 2013, DC Water will develop and fully implement a voluntary,

written Affirmative Action Program (AAP) encompassing any positions in which less than fifty

(50) percent of the incumbent employees are African-American.

16.9.2

The AAP will be structured generally after the OFCCP regulations implementing

the affirmative action requirements of Executive Order 11246, but this Agreement does not

obligate DC Water to adhere to any particular requirement of the OFCCP regulations.

16.9.3

This Agreement does not require the AAP to impose any quotas or preferences on

the basis of race in hiring, promotion, compensation or any other term or condition of

employment.

16.9.4

Any placement goals identified in the AAP will be based on relevant internal and

external qualified labor market statistics.

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16.10

Settlement Compliance Monitor

16.10.1 16.10.1.1

Selection The Parties have selected Michael Lewis of JAMS, Inc., 555 13th Street, NW,

Suite 400 West, Washington, DC 20004, to be the Settlement Compliance Monitor under this

Agreement.

16.10.2

Cost

16.10.2.1 Water.

The fees and costs of the Settlement Compliance Monitor will be paid by DC

16.10.3

Duties

16.10.3.1 The Settlement Compliance Monitor will monitor and report on DC Water’s

implementation of this Agreement’s Programmatic Relief provisions for the duration of the

Agreement.

16.10.4

Reports

16.10.4.1 Reports from DC Water to the Monitor

16.10.4.1.1 Beginning one year after the Effective Date of this Agreement, DC Water will

submit, semi-annually, a detailed, written report of the implementation of all aspects of its

programmatic relief obligations under this Agreement.

16.10.4.1.2 DC Water’s semi-annual reports to the Monitor will be at least five (5) months

apart.

16.10.4.2 Reports from the Monitor to the Parties and Counsel

16.10.4.2.1 The Monitor will review the reports submitted by DC Water and determine

whether DC Water is fulfilling its programmatic relief obligations under this Agreement.

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16.10.4.2.2 Within forty-five (45) days of receiving a semi-annual report from DC Water, the

Monitor will issue a Report to the Parties and Counsel assessing DC Water’s implementation of

the programmatic relief set forth in this Agreement.

16.10.5

Confidentiality

16.10.5.1 The Monitor will treat the reports provided to him by DC Water under this

Agreement as confidential, and upon retention will sign a confidentiality agreement to that

effect. Notwithstanding any other provision of this Agreement, the Monitor may refer to

information contained in any report he receives from DC Water in any report he is required or

authorized to make to the Parties under the terms of this Agreement.

16.10.6

Status of the Monitor

16.10.6.1 The Monitor will not be deemed an agent of either Party for any purpose.

16.10.7

Cooperation with the Monitor

16.10.7.1 DC Water will cooperate with the Monitor to the extent reasonably necessary to

enable him to perform the duties assigned to him by this Agreement.

16.11

Internal Implementation Team

16.11.1

Assembly, Authorization and Composition

16.11.1.1 Within one year of the Effective Date of this Agreement, DC Water will assemble

and authorize an Internal Implementation Team (“the Team”) to implement its programmatic

relief obligations under this Agreement. Assembled for the purpose of this Agreement only, the

Team will be headed by a designated representative within the Office of General Counsel

(“OGC”). In addition to OGC’s designated representative, the Team will be comprised of a

representative from DC Water’s Human Capital Management Department, and the Senior

Management Team.

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16.11.2 16.11.2.1

Meetings The Team will meet: (1) at least monthly during the first year of the Team’s existence; and (2) at least every other month for the duration of this Agreement.

16.11.3

Commitment

16.11.3.1 The Team will use its best efforts to ensure DC Water’s implementation of and

compliance with the programmatic relief provisions of this Agreement.

16.11.4

Support

16.11.4.1 DC Water will provide such support staff and other resources as may be

reasonably necessary to discharge its obligations under this Agreement.

16.11.5

Review of Compensation Policies for EEO Considerations

16.11.5.1 Review by The Team

16.11.5.1.1 Within one year of the Effective Date of this Agreement, The Team will: (1) undertake a comprehensive review of DC Water’s compensation policies
to ensure that the policies are consistent with DC Water’s commitment to equal employment opportunity;
(2) recommend potential improvements to those policies and procedures; and (3) send a copy of its review and recommendations to the Monitor.

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16.11.6

Confidentiality

16.11.6.1 The Monitor will treat The Team’s review and recommendations, any decisions by DC Water with respect to such recommendations, and any changes implemented by DC Water as a result of such recommendations as confidential, except the Monitor may make reference to DC Water’s adoption or failure to adopt The Team’s recommendations in making his assessment of the Defendant’s implementation of its programmatic relief obligations under this Agreement.

16.11.7

Good Faith

16.11.7.1 DC Water will, in good faith, consider The Team’s recommendations in light of the principles and purposes of this Agreement, and DC Water’s business objectives and legal obligations.

16.12

Annual Review of Pay Data and Practices

16.12.1

Within one year of the Effective Date of this Agreement, and not less than yearly

thereafter, DC Water will undertake annual assessments of the compensation paid to employees

of DC Water (the “Annual Pay Assessments” or “Assessments”). The Annual Pay Assessments

will be designed to determine whether racial disparities exist with respect to compensation paid

to DC Water’s employees and, if such racial disparities exist, to quantify the extent and statistical

significance of the disparities and assess the probability that the disparities are due to legitimate,

non-discriminatory factors or other factors.

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16.12.2

Individualized Assessment of Statistically Significant Pay Disparities Not Accounted for By Legitimate, Non-Discriminatory Factors

16.12.2.1 If any Annual Pay Assessment identifies a statistically significant pay disparity

that cannot be accounted for by legitimate, non-discriminatory factors, DC Water will conduct an

individualized assessment of the basis for the specific pay decisions underlying the disparity (the

“Individualized Assessment”). If, following such an Individualized Assessment, any pay

disparity cannot be accounted for by legitimate, non-discriminatory factors, DC Water will make

appropriate adjustments to the pay of the particular employee disadvantaged by the disparity,

consistent with applicable legal standards.

16.12.3

Submission of the Annual Pay Assessment to the Monitor

16.12.3.1 Within thirty (30) days of its completion, DC Water will transmit a copy of the

Annual Pay Assessment, including the results of any Individualized Assessments conducted by

the Defendant pursuant to ¶16.12.2, above (“Individualized Assessment of Statistically

Significant Pay Disparities Not Accounted for By Legitimate, Non-Discriminatory Factors”) to

the Monitor.

16.12.3.2 Notwithstanding any other provision of this Agreement, DC Water must

undertake and produce at least three (3) Annual Pay Assessments, including the results of any

Individualized Assessments conducted by the Defendant pursuant to ¶16.12.2, above

(“Individualized Assessment of Statistically Significant Pay Disparities Not Accounted for By

Legitimate, Non-Discriminatory Factors”) to the Monitor within three (3) years following the

Effective Date of this Agreement.

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16.12.4

Monitor to Review and Consider Result of Pay Assessment

16.12.4.1 The Monitor will review and consider the result of each Annual Pay Assessment

and any Individualized Assessments as he determines whether DC Water is fulfilling its

programmatic relief obligations under this Agreement.

16.12.4.2 Notwithstanding any other provision of this Agreement, the Monitor will produce

a report assessing DC Water’s implementation of the programmatic relief specified in this

Agreement within thirty (30) days after he receives a copy of the Annual Pay Assessment and

any Individualized Assessments from DC Water.

16.12.5

Confidentiality

16.12.5.1 The Monitor will maintain the Annual Pay Assessments and any Individualized

Assessments on a strictly confidential basis and will not share those documents with anyone

without DC Water’s express written permission; however, the Monitor may refer to information

contained in the Annual Pay Assessments and the Individualized Assessments in his reports.

16.12.6

Submission of the Annual Pay Assessment to the Monitor Not Intended to Waive Privilege

DC Water’s submission of the Annual Pay Assessments and any Individualized

Assessments to the Monitor in compliance with this Section is not intended to waive any

privilege with respect to those documents, including but not limited to attorney-client privilege

and the attorney work-product doctrine.

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17

ATTORNEYS’ FEES AND LITIGATION COSTS

17.1 17.1.1

DC Water to Consent to Class Counsel’s Motion for Attorneys’ Fees and Costs
As soon as practicable after the Effective Date and pursuant to

Fed. R. Civ. P. 23(h), Class Counsel will file a motion for attorneys’ fees in the amount of Eight

Hundred Thousand Dollars ($800,000) and costs in the amount of One Hundred Twenty-Five

Thousand Dollars ($125,000). DC Water agrees to consent to that motion.

17.2

Attorneys’ Fees and Costs to Be Paid By the Administrator

17.2.1

Within thirty (30) days after the Court approves such payment, the Administrator

will pay Class Counsel Eight Hundred Thousand Dollars ($800,000) (or such lesser amount

approved by the Court) for attorneys’ fees, which sum will compensate Class Counsel for their

work in this Action to date and their future work in connection with seeking Court approval of

this Agreement, responding to inquiries from Class Members, and monitoring the

implementation of this Agreement, as follows:

(1) $425,000 (Four Hundred Twenty-Five Thousand Dollars) (or 53.125% of

any lesser award of attorneys’ fees) to The Law Office of Alexander Hillery, PLLC, 1629 K

Street, NW, Suite 300, Washington, DC 20006; and

(2) $375,000 (Three Hundred Seventy-Five Thousand Dollars) (or 46.875%

of any lesser award of attorneys’ fees) to The Law Office of David A. Branch and Associates,

PLLC, 1901 Pennsylvania Avenue, NW, Suite 802, Washington, DC 20006.

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17.2.2

Within thirty (30) days after the Court approves such payment, the Administrator

will also pay The Law Office of David A. Branch and Associates, PLLC, One Hundred Twenty-

Five Thousand Dollars ($125,000) (or such lesser amount approved by the Court) for litigation

costs.

17.2.3

Class Counsel will each provide the Administrator with Taxpayer Identification

Numbers and executed W-9s. The Administrator will provide Class Counsel with completed

Form 1099s reflecting the payments made to each, respectively.

18

ADEQUACY OF CONSIDERATION

18.1

The Parties acknowledge that the covenants and promises made by each herein,

one to another, constitute sufficient and adequate consideration for this Agreement.

19

OTHER TERMS

19.1

Exhibits

19.1.1

The Exhibits to this Agreement are material and integral parts of this Agreement

and are fully incorporated herein by reference.

19.2

Notices

19.2.1

All notices required by this Agreement will be in writing and sent by overnight or

certified mail, and by e-mail as follows:

(1) notices to Counsel will be sent to their respective addresses as designated

in this Agreement, or to such other address as they may designate in the future (Counsel will

promptly inform Opposing Counsel, the Administrator and the Monitor of any change of

address); and

(2) notices to the Administrator or the Settlement Monitor will be sent to their

respective addresses as designated in this Agreement, or to such other address as they may

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designate in the future. A copy of any such Notice must be sent to Opposing Counsel as

provided in this Section.

19.3

Failure to Insist on Strict Compliance Is Not Waiver

19.3.1

The failure of any Party to insist in any instance or instances on strict compliance

with the terms of this Agreement will not constitute a waiver of that Party’s right to demand

strict compliance with those terms in any future instance, nor will such a failure be construed to

be a waiver of remedies with respect to any subsequent breach.

19.4

Agreement Inures to the Benefit of the Parties

19.4.1

This Agreement will inure to the benefit of, and be binding upon, the Parties and

their respective heirs, dependents, executors, administrators, trustees, legal representatives,

personal representatives, agents, successors and assigns; provided, however, that this Agreement

will not inure to the benefit of any third party.

19.5

No Drafting Presumption

19.5.1

The Parties have each participated, through their respective counsel, in drafting

this Agreement and, therefore, this Agreement will not be construed more strictly against one

Party than the other.

19.6

Interpretation of Terms

19.6.1

Whenever possible, each provision and term of this Agreement will be interpreted

in such a manner as to be valid and enforceable.

19.7

Paragraph and Section Headings

19.7.1

Paragraph and Section headings in this Agreement are for convenience only and

are not intended to create substantive rights or obligations.

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19.8

Agreement Binding When Executed

19.8.1

When this Agreement is executed by the Parties or their respective counsel, it will

be binding in all respects, unless the Court fails to approve it or it is otherwise nullified or

terminated pursuant to its terms.

19.9

Submissions and Filings from Class Members and Claimants

19.9.1

Any submission or filing that a Class Member of Claimant must make or may

make pursuant to the terms of this Agreement, except the Releases, may be submitted or filed by

mail or facsimile or delivered.

19.9.2

The Named Plaintiff Release and Claimant Releases may be submitted or filed by

mail or delivered only; they may not be submitted or filed by facsimile.

20

SECURING FINAL COURT APPROVAL AND SUBSEQUENT DUTIES

OF THE PARTIES

20.1

Submission of Proposed Final Order

20.1.1

At least fifteen (15) days prior to the Fairness Hearing, Counsel will jointly

submit a proposed final order that:

(1) adjudges the terms of this Agreement to be fair, reasonable and adequate;

(2) grants final approval of this Agreement; and

(3) dismisses the Action with prejudice, but retains jurisdiction to enforce this

Agreement.

20.2

Return or Destruction of Confidential Documents

20.2.1

Any confidential documents will, at the producing Party’s written request, be

returned to the producing Party or destroyed by the Party to whom those materials were

produced, within one hundred-eighty (180) days after the Effective Date of this Agreement;

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however, the Parties and their respective Counsel may retain copies of their work product, all filed documents, and any materials necessary to oversee compliance with the Agreement.

21

AUTHORITY OF THE PARTIES TO ENTER INTO THIS AGREEMENT

21.1

By signing this Agreement, the signatories represent that they are fully authorized

to enter into this Agreement and to bind their respective Parties to its terms.

22

MODIFICATION

22.1

This Agreement may not be altered or modified in any respect, except in a writing

signed by the Parties and approved by the Court.

23

ENTIRE AGREEMENT

23.1

This Agreement and any attachments to it constitute the entire agreement between

the Parties. No extrinsic oral statements or writings will be admissible to modify, vary or

contradict the terms of this Agreement. If there is a conflict between this Agreement and any

other settlement-related document, the terms of this Agreement will control. This Agreement

does not impose any obligations on the Parties beyond the terms and conditions stated herein.

24

COUNTERPARTS

24.1

This Agreement may be executed in counterparts. When any Party or its

respective counsel signs a given counterpart, that counterpart will be deemed an original. When

both Parties and their respective counsel have each signed counterparts, the combined signed

counterparts will constitute one Agreement, which will be binding upon and effective as to all

Parties.

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25

ENFORCEMENT AND DISPUTE RESOLUTION

25.1

The Parties agree to act in good faith and to fully cooperate to effectuate and

implement the terms of this Agreement.

25.2

Counsel will meet or confer at least semi-annually regarding compliance and may

confer more frequently at their discretion.

25.3

The Parties will work diligently and in good faith to resolve any disputes that may

arise between them concerning the rights, obligations, and duties of the Parties, or the meaning,

effect or interpretation of this Agreement or any Exhibit. If the Parties cannot agree, they will

attempt to resolve the dispute with the facilitation of a mediator. If mediation is not successful,

then either Party may institute an enforcement action. The Court will retain continuing

jurisdiction to enforce this Agreement.

25.4

Enforcement of this Agreement will be prosecuted by the Parties only, not third

parties. In any action brought to enforce this Agreement, the Court may, in its discretion, award

reasonable attorneys’ fees and expenses to the prevailing party.

25.5

Where a Paragraph or Section of this Agreement provides for a specific manner or

means of dispute resolution, that provision governs that Paragraph or Section.

26

GOVERNING LAW

26.1

Federal law will govern the validity, construction and enforcement of this

Agreement. To the extent that the validity, construction or enforcement of this Agreement or any

release executed pursuant to its terms is governed by state law, District of Columbia law will

apply.

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27

DEADLINES MAY BE EXTENDED

27.1

Any deadline in this Agreement may be extended with the consent of the Parties

or upon order of the Court.

28

FAXED SIGNATURES DEEMED ORIGINAL

28.1

Faxed signatures will be deemed original signatures for all purposes.

IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of the date indicated below:
_________________________________________ Charles N. Taylor, Named Plaintiff 1524 Nova Avenue Capital Heights, MD 20743

_________________________________________ David A. Branch (D.C. Bar No. 438764) Law Office of David A. Branch and Associates, PLLC 1901 Pennsylvania Avenue, NW, Suite 802 Washington, D.C. 20006 (202) 785-2805 (phone) (202) 785-0289 (fax) dablaw@erols.com
_________________________________________ Alexander Hillery, II (D.C. Bar No.: 980231) Law Office of Alexander Hillery, PLLC 1629 K St., NW, Suite 300 Washington, D.C. 20006-1631 (202) 288-5139 (phone) (301) 877-5972 (facsimile) aghillery@gmail.com Attorneys for Plaintiffs

DATED:

August _____, 2012 Washington, D.C.
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District of Columbia Water and Sewer Authority 5000 Overlook Avenue, S.W. Washington, D.C. 20032
_________________________________________ By:
_________________________________________ Title
_________________________________________ Grace E. Speights (D.C. Bar No. 392091) gspeights@morganlewis.com William E. Doyle, Jr. (D.C. Bar No. 498522) wdoyle@morganlewis.com Diana M. Uribe (D.C. Bar No. 984840) duribe@morganlewis.com MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Ave., NW Washington, D.C. 20004 (202) 739-3000 (202) 739-3001 (Fax) Attorneys for Defendant

DATED:

August _____, 2012 Washington, D.C.

54

 
 Case 1:01-cv-00561-BJR Document 255 Filed 03/28/13 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CHARLES TAYLOR et al.

)

)

Plaintiffs,

)

)

v.

)

DISTRICT OF COLUMBIA WATER )

AND SEWER AUTHORITY

)

)

Defendant.

)

)

)

Civil Action No. 01-CV00561 (BJR)

ORDER GRANTING FINAL APPROVAL OF THE CLASS SETTLEMENT

The parties in this action have entered into a [240] Settlement Agreement and have

applied to this Court for preliminary and final approval of the Settlement. On September 25,

2013, the Court entered a [245] Preliminary Approval Order, and issued [246] Administrative

Order No.1, the findings and rulings of which are incorporated herein. On March 28, 2013, the

Court held a Final Fairness Hearing.

Now, upon consideration of[253] Plaintiffs' Consent Motion for Final Approval of the

Settlement Agreement, and for Other Relief, which seeks, in addition to final approval of the

Settlement Agreement, re-certification of the Settlement Class, final approval of the re-certified

Class, and authorization for payment of a Service Award to the Named Plaintiff, and [252] Class

Counsel's Unopposed Motion for an Award of Attorneys' Fees and Expense Reimbursement, the

supporting memoranda and materials filed by the parties, discussion and argument had during

J,8 . the Final Fairness Hearing, and the record as a whole, it is, this

~
day of

~eL.

,2013,

hereby

Case 1:01-cv-00561-BJR Document 255 Filed 03/28/13 Page 2 of 10
ORDERED that [253] Plaintiffs' Consent Motion for Final Approval of the Settlement Agreement, and for Other Relief, and [252] Class Counsel's Unopposed Motion for an Award of Attorneys' Fees and Expense Reimbursement are GRANTED on the terms and conditions set forth herein; and it is
FURTHER ORDERED as follows: Except as otherwise specified, the Court incorporates herein all the defined terms set forth in the [240] Settlement Agreement. 1. This Court has jurisdiction over the subject matter of this litigation and all matters relating thereto, and over the Plaintiffs and Defendant. 2. The Settlement Class shall consist of: All Black employees who were employed by the Defendant between October 1, 1996 and December 31, 2000, except any such persons who were employed by the Defendant at any time between October I, 1996 and December 31, 2000 in any of the following capacities are not members of the Settlement Class: (a) General Manager; (b) Assistant General Manager; (c) Deputy General Manager; (d) General Counsel; (e) In-House Counsel; or (f) Director of Human Resources. 3. The Settlement Class has approximately 1,037 members. There are too many Class Members for joinder to be practicable. The Settlement Class meets the numerosity requirement of Fed. R. Civ. P. 23(a). 4. The claims of the members of the Settlement Class raise common factual and legal issues, some of which are identified in the [1] Complaint. The Settlement Class meets the commonality requirement of Rule 23(a). 5. The claims of the Class Representative are typical of the claims of the other Class Members. The Class Representative, Mr. Charles Taylor, is an adequate representative of the
2

Case 1:01-cv-00561-BJR Document 255 Filed 03/28/13 Page 3 of 10
Class of which he is a member and there is no evidence that he has any interest antagonistic to the Class Members he represents. The Settlement Class meets the typicality and adequacy requirements of Rule 23(a).
6. The proposed Class meets the numerosity, commonality, typicality, and adequacy requirements of Rule 23(a), and the Court affirms its provisional finding that the requirements of Fed. R. Civ. P. 23(a) are satisfied.
7. The Court affirms the vacatur of its [139] Order certifying the Class under Rule 23(b)(2) in light of Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 180 L. Ed. 2d 374, 2011 U.S. LEXIS 4567 (2011).
8. The Court finds that questions of law or fact common to the Class Members predominate over questions that affect only individual members, and that the proposed Class is sufficiently cohesive to warrant adjudication by representation. The Court finds that the proposed Class meets the predominance requirement for certification under Rule 23(b)(3).
9. The Court further finds that the proposed Settlement Class, which has approximately 1,037 members, has too many members to be handled fairly and efficiently by any means other than a class action, and that a class action is superior to other available methods for the fair and efficient adjudication of the Plaintiffs' claims in this case. The Court finds that the proposed Class meets the superiority requirement of Rule 23(b)(3).
10. The Court affirms its findings, in Paragraph 4 of the [245] Preliminary Approval Order, that the predominance and superiority requirements of Rule 23(b)(3) are satisfied, and the Class is hereby certified thereunder.
11. The Notice of Class Action Settlement and the Claim Form mailed to Class Members, pursuant to the Court's [245] Preliminary Approval Order, constituted the best notice
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practicable under the circumstances, and the Court-approved notice plan was accomplished in all material respects.
12. In accordance with the [245] Preliminary Approval Order, the Claims Administrator mailed copies of the authorized Notice of Class Action Settlement and the Claim Form to 1,029 Class Members by first-class mail, postage prepaid. 129 of the Notices were returned to the Claims Administrator as undeliverable.
13. The Claims Administrator was able to obtain new addresses for 106 of the 129 Class Members whose Notices had been returned as undeliverable. The Claims Administrator re-mailed copies of the Notice of Class Action Settlement and the Claim Form to the address provided by the Defendant for those 23 Class Members for whom new addresses could not be obtained.
14. Additionally, the Notice of Class Action Settlement and the Settlement Agreement were published on a website created and maintained by the Claims Administrator (www.TaylorClassActionSettlement.com). The Court finds that the notice that was provided fully met the requirements of Rule 23 of the Federal Rules of Civil Procedure, the United States Constitution, and any other applicable law.
15. The Class Action Fairness Act ("CAFA") provides that "[a]n order giving final approval of a proposed settlement may not be issued earlier than 90 days after the later of the dates on which the appropriate Federal official and the appropriate State officials are served with the notice" of the proposed settlement. 28 U.S.C. §1715(d). The Defendant provided notice to the United States Attorney General and the Attorneys General of the District of Columbia; Maryland; Virginia; West Virginia; Georgia; Massachusetts; North Carolina; Texas and Florida on or about September 20,2012. No objections have been filed by Federal or State officials.
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16. The Settlement Agreement was the product of over 18 months of discussions and negotiations between the parties, including three sessions with two Neutral Evaluators from the Court's Neutral Evaluation Program. The Court finds that the Settlement Agreement is the result of arm's-length negotiations between highly experienced counsel, after thorough factual and legal investigation.
17. The Court finds that the terms of the Settlement Agreement are fair, reasonable, and adequate in all respects. The Court specifically finds that the Settlement is rationally related to the strength of the Plaintiffs' claims given the risk, expense, complexity and duration of further litigation.
18. The Court further finds that the response of the Class to the Settlement supports approval of the Settlement Agreement. The Class contains approximately 1,037 Class Members (the Defendant initially identified 1,029 Class Members, and 8 additional Class Members were subsequently identified), and 423 Claim Forms were accepted by the Claims Administrator, a claim submission rate ofjust over 40%. No Class Member has objected to the Settlement, and only 1 exclusion request has been received.
19. Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, this Court grants final approval to the [240] Settlement Agreement and incorporates the terms and conditions of the Settlement Agreement herein.
20. The Court finds that the proposed procedures for the determination and allocation of monetary awards are fair, reasonable, adequate, and rationally related to the relative strengths and weaknesses of the respective claims asserted, and payment shall be made according to those procedures. The Claims Administrator shall render a determination as to the monetary award, if any, that should be paid to each Claimant from the Claims Fund. In rendering such
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determinations, the Claims Administrator shall apply the points-based Allocation Formula set forth in the Settlement Agreement, and the Claims Administrator shall further exercise the discretion granted to it by the Settlement Agreement to grant individual Class Members additional points based on the criteria set forth therein.
21. When the Claims Administrator has rendered a final determination as to the monetary award, if any, that should be paid to each individual Claimant from the Claims Fund, the parties shall submit for the Court's approval a detailed declaration from the Claims Administrator describing how the proposed procedures were utilized in rendering determinations across the Class, identifying the factors taken into consideration, the relative weight afforded to each factor, and providing any further information that might be of use to the Court in evaluating the overall reasonableness and adequacy of the Claims Administrator's determinations.
22. The Court shall limit the scope of its review and approval of the Claims Administrator's determination of the amount to be paid to each individual Claimant from the Claims Fund to the overall reasonableness and adequacy of the process employed by the Claims Administrator in rendering its determinations. The Court will neither evaluate nor approve individual monetary awards. Pursuant to the terms of the Settlement Agreement, the Claims Administrator's determination as to the monetary award, if any, that should be paid to each Claimant from the Settlement Fund shall be final and not subject to review by, or appeal to, any court, mediator, arbitrator, or other judicial body, including this Court.
23. The parties shall jointly apply to the Court for permission to distribute any remaining, undistributed funds as set forth in the Settlement Agreement.
24. The Court confirms as final the appointment of the Named Plaintiff, Charles Taylor, as the Class Representative.
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25. Pursuant to the terms of the Settlement Agreement, the Named Plaintiff is to be paid a "Service Award" of $60,000 for his service to the Class in this case.
26. The proposed Service Award was set forth in the [240] Settlement Agreement filed with the Court, and in the Notice of Class Action Settlement posted on the website established by the Claims Administrator. No objection was received to payment of the proposed Service Award.
27. The Court finds that the Named Plaintiff has been the only named plaintiff for almost the entire duration of this 13-year-old case, and that he has been an active participant in this case. The Court further finds that the proposed Service Award is reasonable in light of the Named Plaintiffs singular service to the Class. The Court approves payment of the Service Award to the Named Plaintiff, as set forth in the Settlement Agreement.
28. The Court confirms as final the appointment of David A. Branch, Esq. and Alexander Hillery, II, Esq., as Class Counsel.
29. Pursuant to the terms of the Settlement Agreement, Class Counsel are to be paid, collectively, $800,000 for their work in this case, and David Branch, Esq., is to be paid an additional $125,000 to reimburse him for litigation expenses.
30. The proposed award of attorney's fees and the proposed payment for the reimbursement for litigation expenses was set forth in the [240] Settlement Agreement filed with the Court and in the Notice of Class Action Settlement posted on the website established by the Claims Administrator. No objection was received to either the request for attorney's fees or the request for the reimbursement of litigation expenses.
31. The Court finds that Class Counsel has been effective in its representation of the Class, and that the proposed award of attorney's fees and the proposed payment for the
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reimbursement of litigation expenses is reasonable and within the range of fee awards made in comparable cases. The Court approves the attorney's fee award in the amount of $800,000, and the expense reimbursement payment of$125,000, as set forth in the Settlement Agreement.
32. The Court has reviewed the release provisions in the Settlement Agreement, the Claimant Release Form and the Named Plaintiff Release Form, and the Court finds the releases to be fair, reasonable, and enforceable under applicable law.
33. Upon the entry of this Order as a Final Judgment, all released Class Member claims and Named Plaintiff claims, as set forth in the Claimant Release Form, the Named Plaintiff Release Form, and Sections 12 and 13 of the Settlement Agreement, respectively, are fully, finally, and forever released, relinquished, and discharged, pursuant to the terms of the Settlement Agreement, as to all Settlement Class members who have not opted-out of the Settlement Class.
34. All claims released pursuant to the Claimant Release Form, the Named Plaintiff Release Form, and Sections 12 and 13 of the Settlement Agreement are dismissed with prejudice as to all Settlement Class members who have not opted-out of the Settlement Class.
35. Each member of the Settlement Class who has not opted-out of the Settlement Class is permanently enjoined from commencing, prosecuting, or maintaining in any court other than this Court any claim, action or other proceeding that challenges or seeks review of or relief from any order, judgment, act, decision, or ruling of this Court in connection with the Settlement Agreement.
36. Additionally, each member of the Settlement Class who has not opted-out of the Settlement Class is permanently enjoined from commencing, prosecuting, or maintaining, either directly, representatively, or in any other capacity, any claim that is subsumed within the
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Settlement Agreement, including any and all race discrimination claims against the Defendant under federal, state and local laws, through December 31, 2007.
37. Thirty days after entry of this Order as a Final Judgment, the Complaint shall automatically, without further Order of this Court, be dismissed with prejudice, except that the Court shall retain continuing jurisdiction limited to enforcing the Settlement Agreement, this Order, and any further Orders of this Court.
38. Neither the Settlement Agreement, nor this Order, nor the certification of the Settlement Class, nor any communication or action by the parties in connection with the Settlement Agreement constitutes or shall be deemed to constitute an admission by the Defendant of any liability or wrongdoing whatsoever, nor shall the same constitute or be deemed to constitute a finding by this Court as to the merits or any claim or defense that was or could have been asserted in this action, or of any wrongdoing by the Defendant.
39. Neither the Settlement Agreement nor this Order is to be used as or deemed to be an admission in any action or proceeding of any fault, liability, or wrongdoing by any person or entity; and neither the Settlement Agreement, nor this Order, nor any of the negotiations or proceedings related thereto, nor any related document or communication, shall be offered or received in evidence against any person or entity in any action or proceeding as an admission, concession, presumption, or inference as to the merits of any claim or defense; provided however, that the Settlement Agreement and this Order may be received in evidence in any proceeding in this Court as may be necessary to enforce the Settlement Agreement, this Order or any future Orders of this Court.
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40. The Court hereby enjoins disclosure of the documents and information discussed or exchanged during the parties' confidential settlement negotiations and mediation to any party not specified in the parties' confidentiality agreements.
41. This Order and the Settlement Agreement are binding on all members of the Class who have not opted-out of the Settlement Class.
42. This Court retains jurisdiction over this matter for purposes of resolving issues relating to the administration, implementation, and enforcement of the Settlement Agreement, this Order, and any further Orders of this Court.
SO ORDERED.
Dated:~, 2013
10

 
 Taylor v. District of Columbia Water and Sewer Authority, Slip Copy (2010)

2010 WL 11578734 Only the Westlaw citation is currently available. United States District Court, District of Columbia.
Charles TAYLOR, et al., Plaintiffs, v.
DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY, Defendant.
Civil Action No. 01-00561 (HHK/AK) |
Filed 04/22/2010
Attorneys and Law Firms
Alexander G. Hillery, II, Law Office of Alexander Hillery, PLLC, David A. Branch, Law Offices of David A. Branch & Associates, PLLC, Washington, DC, for Plaintiffs.
Grace E. Speights, Jocelyn R. Cuttino, Morgan, Lewis & Bockius, LLP, Washington, DC, William E. Doyle, Jr., McGuireWoods LLP, Raleigh, NC, for Defendant.
Opinion

Background
On January 4, 2010, the trial court granted the parties’ Joint Motion for Further Enlargement of Discovery and Case Management Deadlines, thus setting a January 15, 2010 due date for non-expert discovery. (See 01/04/10 Order [184] ) Plaintiffs’ expert designation was also due by January 15, 2010 and their expert report was due by March 5, 2010. (01/04/10 Order [184] ) On January 26, 2010, this case was referred by the trial court to the undersigned for consideration of all motions relating to discovery. (See Order of Referral [188].) On February 2, 2010, this Court granted in part and denied in part Plaintiffs’ [partial] Consent Motion for Extension of Time to Complete Discovery. (02/02/10 Minute Order.) Plaintiffs’ request for a 21 day extension of discovery was granted to the extent that the January 15, 2010 deadline for non-expert discovery was extended up to and including February 5, 2010 for the limited purposes of: 1) allowing the parties to meet and confer regarding any discovery noticed or requested prior to January 15, 2010; and 2) permitting the Plaintiffs an opportunity to respond to Defendant’s outstanding requests for production of documents. Non-expert discovery was not otherwise continued during the extension period.

MEMORANDUM ORDER
ALAN KAY, UNITED STATES MAGISTRATE JUDGE
*1 Pending before this Court is Plaintiffs’ Motion to Compel, which includes [as a memorandum in support thereof] a Renewed Motion to Compel the Defendant to Fully Respond to the Plaintiffs’ Interrogatories and Requests for Production of Documents and Plaintiffs’ Motion, in the Alternative, to Preclude or Estop the Defendant from Using any Workforce Data in Opposition to the Plaintiffs’ Class Certification Motion Other than the Workforce Data the Defendant has produced in Response to the Plaintiffs’ Interrogatories and Requests for Production of Documents (“Motion to Compel”) [195] and Defendant District of Columbia Water and Sewer Authority’s (“WASA”) opposition to the Motion (“Opposition”) [197].1

On March 9, 2010, Plaintiffs, through counsel, filed a motion for a stay of discovery deadlines alleging that because they had not received certain documents sought through discovery, they were unable to comply with the March 5, 2010 expert report deadline.2 Plaintiffs accordingly requested that this Court “stay the discovery deadlines in this matter, nunc pro tunc to March 5, 2010, through March 15, 2010 for the Plaintiffs to file their motion to compel.” (Motion to Stay Discovery [191] at 2.) This Court granted in part and denied in part the Motion to Stay (03/15/10 Minute Order [192].)
*2 On March 17, 2010, Plaintiffs filed the instant Motion to Compel [195], and on March 26, 2010, Defendant WASA filed its Opposition [197].3 A review of the record in this case indicates that Plaintiffs’ Motion to Compel is a verbatim copy of an earlier Renewed Motion to Compel [67] filed in April 2004. Defendant WASA filed its opposition [81] in response to that motion [67] in May 2004, and Plaintiffs replied to the opposition in June 2004. (Reply attached to [85] Motion for Extension of Time to File Reply.) Plaintiffs’ Renewed Motion to Compel [67] was denied by the trial court in a March 9,

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Taylor v. District of Columbia Water and Sewer Authority, Slip Copy (2010)

2005 Minute Order, nunc pro tunc September 24, 2004. On September 24, 2004, the trial court issued an Order [88] denying Plaintiffs’ motion to compel responses to interrogatories and requests for production of documents; re-open discovery; modify the discovery schedule; and extend and bifurcate discovery “except to the extent further discovery was authorized by th[e] [trial] court’s order docketed January 6, 2004.” (September 9, 2004 Order [88] at 1.) The trial court’s January 6, 2004 Order [50] ordered that
defendant WASA shall, to the extent it has not done so already, provide plaintiffs with (1) any electronic versions of spreadsheets (i.e., in Excel format) requested by plaintiffs, which they already obtained from defendant in paper form and (2) any other documents (e.g., the list of names and addresses of current WASA employees) not yet in plaintiffs’ possession which defendant purported to have already produced; ...

Defendant, [and] they are not able to produce that expert report.” (Motion to Stay Discovery [191] at 1.) Plaintiffs particularly indicated that they needed “personnel files of the Defendant’s employees during the class period and certain unspecified “data.” (Motion to Stay [191] at 1-2.) Plaintiffs did not modify their Motion to Compel to explain what information their expert, Dr. Lanier, requires in order to prepare his expert report. Rather, they re-filed the same motion they filed several years ago when they were preparing for class certification [with a different expert] and they simply attached new exhibits thereto, including a Declaration by Dr. Lanier. Dr. Lanier’s Declaration notes without further explanation that he requests basic information “including but not limited to each employee’s age, level of education, exempt or non-exempt status, and actual W-2 compensation.” (Declaration ¶ 5.) Dr. Lanier also includes a list of files that need to be produced in a different format before he can use them. WASA explains its position on both of these issues in its Opposition to the Motion to Stay.
Personnel Files

(Order [50].) Accordingly, the trial court granted Plaintiffs some of the relief requested pursuant to their underlying motion to compel certain discovery responses, but on March 9, 2005, the trial court issued a Minute Order denying Plaintiffs’ Renewed Motion to Compel [67]. Plaintiffs now renew that Renewed Motion to Compel after the close of merits discovery. In renewing that Motion in its original [outdated] form (with the attachment of some new exhibits), Plaintiffs make no showing that the contested discovery requests discussed therein are relevant to and necessary for the preparation of their expert report. Nor do Plaintiffs provide any justification for revisiting the trial court’s prior rulings on such Renewed Motion to Compel.4
Information Relevant to Expert Report, as noted in Plaintiffs’ Motion to Stay
Plaintiffs’ request for a stay of discovery deadlines until they had an opportunity to file a motion to compel was premised upon their assertion that “the Plaintiffs have not received important documents and data that they sought through merits and other discovery served on the

*3 With regard to the personnel files, WASA acknowledges that “Plaintiff[s] [were] entitled to inspect personnel files during the two year merits discovery period [b]ut Plaintiff[s] simply did not make arrangements to do so, and [they] now request that the Court further delay this already long-overdue case to allow a three-week inspection that should have taken place months, if not years ago.” (Opposition at 1.)5
WASA asserts that it was not until January 13, 2010, two days before the close of merits discovery, that it received a letter indicating that its September 21, 2009 discovery responses were allegedly inadequate. (Opposition, Exh. H, January 13, 2010 letter from Plaintiffs’ counsel to Defendant’s counsel.) WASA responded by detailing its allegedly inadequate responses and providing a description of responsive documents. (Opposition, Exh. I, January 15, 2010 letter from WASA’s counsel to Plaintiffs’ counsel.) A Consent Motion to Extend Discovery for 21 days was filed on January 15, 2010, and granted in part by this Court to allow the parties until February 5, 2010 to meet and confer about document production disputes.
WASA asserts that during a January 27, 2010 conference call, Plaintiffs’ counsel informed WASA that he could not

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Taylor v. District of Columbia Water and Sewer Authority, Slip Copy (2010)

find unique employee identification numbers in any of the documents produced by WASA to date, and in response thereto, WASA identified the responsive documents that contained that information, which had been produced four years ago, in March, 2006. (Opposition at 5; see Exh. J, January 30, 2010 electronic mail chain.) Plaintiff’s counsel further indicated that WASA had not produced personnel files for over 1,000 individuals employed by WASA during the class period and WASA notes that it “investigated the feasibility of such production.” (Opposition at 5.) On February 5, 2010, the parties held a conference to discuss WASA’s responses to Plaintiffs’ discovery requests. (Id.) At that time, WASA indicated that it would not produce the 1,000 complete personnel files, because it was too burdensome and Plaintiffs had the opportunity to inspect these files during merits discovery. Plaintiffs’ counsel requested another opportunity to inspect the files outside the discovery period. (Opposition, Exh. K, February 26, 2010 electronic mail chain.) On February 24, 2010, WASA informed Plaintiffs that it was “not in a position to accommodate Plaintiffs’ request for inspection of personnel files, as Plaintiffs failed to request this inspection during the discovery period after being repeatedly notified that the files were available for inspection.” (Opposition, Exh. K.)
WASA notes that Plaintiffs were allowed to inspect its personnel files on June 23, 2003 pursuant to a joint proposed discovery order. (Opposition, Exh. Q, Joint Status Report and Order.) The files were made available for inspection and copying from June 23, 2003 through July 8, 2003, and Plaintiffs’ counsel inspected them for one and one-half days before halting the inspection and declaring that it was too burdensome and a “document dump.” (Opposition at 9; see Exh. R, November 24, 2003 Status Hearing Transcript, pp 22-30.) During a November 24, 2003 status hearing, the trial court found that Plaintiffs’ pending motion to compel did not properly raise the personnel file issue and he also indicated that counsel should have raised this issue at the time of the inspection. (Opposition at 9; see Exh. R.) Plaintiffs’ Renewed Motion to Compel [67] was thereafter denied by the trial court in March 2005. (03/09/05 Minute Order.)
*4 WASA asserts that the issue of production of personnel files was not raised again by Plaintiffs until the close of merits discovery when WASA’s counsel sent a January 15, 2010 letter to Plaintiffs’ counsel, responding to allegations of discovery deficiencies and noting that
Footnotes

Plaintiffs had the opportunity to request a review of personnel files during merits discovery but had not done so. (Opposition at 9; see Exh., I, January 15, 2010 letter from WASA’s counsel to Plaintiffs’ counsel.)
The issue of personnel files was initially addressed by the trial court during class certification discovery when Plaintiffs began and then disbanded their inspection of the files. The trial court subsequently denied Plaintiffs’ renewed request to compel this discovery. Plaintiffs have now raised this same issue at the close of merits discovery. While Plaintiffs have asserted that the personnel files are necessary in order for their expert to prepare his report, the Declaration of Dr. Lanier does not confirm this assertion. Accordingly, this Court finds that Plaintiffs’ request for personnel records is untimely and should be denied.
Data Files
With respect to the data files, WASA indicates that Plaintiffs received electronic data files “over 4 years ago, [but] first raised the issue of obtaining some of these particular files in a different format on February 5, 2010, at which point Plaintiffs and Dr. Lanier (Plaintiffs’ new expert) agreed to provide a listing of the requested files.” (Opposition at 2.) Such listing was not provided until Plaintiffs filed their Motion to Compel on March 17, 2010, and attached to Dr. Lanier’s Declaration a listing of approximately 85 requested files. Defendant notes that, on March 26, 2010, WASA provided the listed files in the requested format to Plaintiffs’ counsel, and thus, with regard to this issue, Plaintiffs’ Motion to Compel is moot. (Opposition at 12.)
Wherefore, it is this 22nd day of April, 2010, hereby
ORDERED that the Plaintiffs’ Motion to Compel the Defendant [195] is DENIED.
All Citations
Slip Copy, 2010 WL 11578734

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Taylor v. District of Columbia Water and Sewer Authority, Slip Copy (2010)

1

Plaintiff Charles Taylor is an individual Plaintiff and class representative on behalf of all Plaintiffs. The Court herein

refers to Plaintiffs in the plural form. The title of Attachment A (supporting the Motion) indicates a request for alternative

relief (preclusion of evidence in opposition to a class certification motion) but this alternative relief request is moot

because the class certification issue has already been decided.

2

Plaintiffs did not file their motion prior to the March 5, 2010 expert report deadline due to illness of counsel.

3

Plaintiffs requested a two-day extension of time in which to file their Motion to Compel prior to filing it on March 17,

2010.

4

WASA asserts that “Plaintiffs’ Motion to Compel is untimely because it has been filed after the close of merits discovery

and raises alleged discovery deficiencies related to discovery responses that were provided to Plaintiffs at least four

years ago.” (Opposition at 7.) WASA further contends that Plaintiffs have “not offered any facts to explain why [they

have been] unable to conduct discovery within the ample time frame s set by this Court’s Scheduling Orders, despite

the fact that class certification discovery began in November 2002 and non-expert merits discovery extended from

March 2008 through January 2010.” (Id.)

5

Merits discovery began on March 5, 2008 and closed on January 15, 2010. (Opposition at 3.)

End of Document

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4

 
 Case: 1:01-cv-561 As of: 04/13/2018 01:37 PM EDT 1 of 28
CLOSED,ENE,JURY,STAYED,TYPE−H
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:01−cv−00561−BJR

TAYLOR, et al v. DC WATER & SEWER Assigned to: Judge Barbara Jacobs Rothstein Demand: $0 Case in other court: Cause: 42:2003 Job Discrimination
Plaintiff
CHARLES TAYLOR Individually and as Class Representative

Date Filed: 03/16/2001 Date Terminated: 03/28/2013 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question
represented by Alexander G. Hillery , II LAW OFFICE OF ALEXANDER HILLERY, PLLC 1629 K Street, NW Suite 300 Washington, DC 20006 (202) 288−5139 Fax: (301) 877−5972 Email: aghillery@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A. Branch LAW OFFICES OF DAVID A. BRANCH & ASSOCIATES, PLLC 1828 L Street, NW Suite 820 Washington, DC 20036 (202) 785−2805 Fax: (202) 785−0289 Email: davidbranch@dbranchlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY

represented by Diana M. Uribe 1111 Pennsylvania Ave NW Washington, DC 20004 202−739−3000 Email: duribe@morganlewis.com TERMINATED: 02/08/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Grace E. Speights MORGAN, LEWIS & BOCKIUS, LLP 1111 Pennslyvania Ave, NW Washington, DC 20004 (202) 739−5189 Fax: (202) 739−3001 Email: gspeights@morganlewis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jocelyn R. Cuttino MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004

Case: 1:01-cv-561 As of: 04/13/2018 01:37 PM EDT 2 of 28

202−739−5927 Fax: 202−739−3001 Email: jcuttino@morganlewis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

William E. Doyle , Jr. MCGUIRE WOODS LLP 434 Fayetteville Street Suite 2600 Raleigh, NC 27601 (919) 755−6690 Fax: (919) 755−6699 Email: wdoyle@mcguirewoods.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julia H. Perkins SHEPPARD MULLIN RICHTER & HAMPTON LLP 2099 Pennsylvania Avenue, NW Suite 100 Washington, DC 20006 (202) 218−0000 Email: perkinsjh@gtlaw.com TERMINATED: 01/19/2006

Karen Ellen Gray MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 (202) 739−5334 Fax: (202) 739−3001 Email: kgray@morganlewis.com TERMINATED: 09/06/2012

Mark E. Nagle MARRIOTT VACATIONS WORLDWIDE CORPORATION Senior Vice President & Associate General Counsel 6649 Westwood Boulevard Orlando, FL 32821 (407) 529−2587 Fax: (407) 206−6420 Email: mark.nagle@mvwc.com TERMINATED: 11/16/2005

Mary E. Pivec WILLIAMS MULLEN 1666 K Street, NW Suite 1200 Washington, DC 20006 (202) 719−2061 Fax: (202) 719−2077 Email: mpivec@fordharrison.com TERMINATED: 01/19/2006

Plaintiff
RONALD MARSHALL individually and as class representative TERMINATED: 11/13/2007

represented by Alexander G. Hillery , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:01-cv-561 As of: 04/13/2018 01:37 PM EDT 3 of 28
David A. Branch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/16/2001 03/16/2001 03/16/2001 04/11/2001 04/17/2001 05/01/2001 05/02/2001 05/15/2001 05/17/2001 05/21/2001 05/23/2001 05/29/2001 06/04/2001
06/13/2001 06/18/2001
06/18/2001 06/21/2001 06/25/2001

# Docket Text
1 COMPLAINT filed by plaintiff CHARLES TAYLOR; jury demand (bm) (Entered: 03/19/2001)
SUMMONS (1) issued for defendant DC WATER & SEWER (bm) (Entered: 03/19/2001)
2 NOTIFICATION OF RELATED CASE: Case related to Case No(s): CA 00−2734 (bm) (Entered: 03/19/2001)
3 MOTION filed by defendant DC WATER & SEWER to extend time to 5/1/01 to answer complaint [1−1] (hsj) (Entered: 04/13/2001)
4 ORDER by Judge Henry H. Kennedy : granting motion to extend time to 5/1/01 to answer complaint [1−1] [3−1] by DC WATER & SEWER ; Answer extended to 5/1/01 for DC WATER & SEWER (N) (dcn) (Entered: 04/17/2001)
5 OBJECTIONS by defendant DC WATER & SEWER to plaintiff's designation of Matthews v. DCWASA, 00CV2734. (bm) (Entered: 05/11/2001)
6 AMENDED COMPLAINT by plaintiff CHARLES TAYLOR adding plaintiff RONALD MARSHALL, and amending complaint [1−1] .; jury demand (bm) (Entered: 05/11/2001)
7 RESPONSE (OPPOSITIONS) by plaintiff CHARLES TAYLOR, plaintiff RONALD MARSHALL to objection to designation of related case [5−1] by DC WATER & SEWER (td) (Entered: 05/16/2001)
49 ANSWER to First Amended Complaint by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY.(bm) (Entered: 12/19/2003)
8 MOTION filed by defendant DC WATER & SEWER to dismiss complaint [1−1] (hsj) (Entered: 05/22/2001)
9 ORDER by Judge Henry H. Kennedy : Meet Confer hearing set for 4:00 6/29/01 . (N) (dcn) (Entered: 05/23/2001)
10 MOTION filed by plaintiffs CHARLES TAYLOR, and RONALD MARSHALL to extend time to 6/14/01 to respond to the motion to dismiss (bm) (Entered: 05/30/2001)
11 ORDER by Judge Henry H. Kennedy : granting motion to extend time to 6/14/01 to respond to the motion to dismiss [10−1] by RONALD MARSHALL, CHARLES TAYLOR response to dispositive motions due by 6/14/01 ; (N) (dcn) (Entered: 06/04/2001)
12 MOTION (consent) filed by plaintiff CHARLES TAYLOR, plaintiff RONALD MARSHALL to extend time to 6/18/01 to file opposition to motion to dismiss. (td) (Entered: 06/15/2001)
13 ORDER by Judge Henry H. Kennedy: granting motion to extend time to 6/18/01 to file opposition to motion to dismiss. [12−1] by RONALD MARSHALL, CHARLES TAYLOR response to motion to dismiss due on or before 6/18/01; (N) (dam) (Entered: 06/19/2001)
14 RESPONSE by plaintiff CHARLES TAYLOR, plaintiff RONALD MARSHALL in opposition to motion to dismiss complaint [1−1] [8−1] by DC WATER & SEWER . (hsj) (Entered: 06/20/2001)
15 MOTION (CONSENT) filed by defendant DC WATER & SEWER to extend time to 7/2/01 to reply to opposition to motion to dismiss (cdw) (Entered: 06/22/2001)
SCHEDULING NOTICE: , Meet Confer hearing set for 11:15 7/19/01 . before Judge Henry H. Kennedy . (dcn) (Entered: 06/25/2001)

Case: 1:01-cv-561 As of: 04/13/2018 01:37 PM EDT 4 of 28

06/28/2001 06/29/2001 07/02/2001 07/12/2001 07/19/2001 07/25/2001 08/06/2001 10/10/2001 10/10/2001 10/31/2001 11/14/2001 01/02/2002 01/11/2002 01/11/2002 01/14/2002 02/07/2002
04/02/2002 04/08/2002 04/22/2002 10/02/2002

17 REPLY by defendant DC WATER & SEWER to response in opposition to motion to dismiss complaint [1−1] [8−1] by DC WATER & SEWER (cdw) (Entered: 06/30/2001)
16 ORDER by Judge Henry H. Kennedy : granting motion to extend time to 7/2/01 to reply to opposition to motion to dismiss [15−1] by DC WATER & SEWER; reply to dispositive motions due by 7/2/01 ; (N) (dcn) (Entered: 06/29/2001)
18 MOTION filed by plaintiff CHARLES TAYLOR, plaintiff RONALD MARSHALL to extend time to file a motion for class certification (cdw) (Entered: 07/03/2001)
19 STATEMENT OF CASE filed by plaintiff CHARLES TAYLOR, defendant DC WATER & SEWER, plaintiff RONALD MARSHALL , . (aet) (Entered: 07/13/2001)
STATUS HEARING before Judge Henry H. Kennedy : status hearing set for 11:15 11/9/01 ; Reporter: Dolores Byers (dcn) (Entered: 07/19/2001)
20 RESPONSE by defendant DC WATER & SEWER in opposition to motion to extend time to file a motion for class certification [18−1] by RONALD MARSHALL, CHARLES TAYLOR . (cdw) (Entered: 07/26/2001)
21 ORDER by Judge Henry H. Kennedy : staying proceedings as to plaintiff CHARLES TAYLOR, defendant DC WATER & SEWER, plaintiff RONALD MARSHALL (N) (dcn) (Entered: 08/07/2001)
SCHEDULING NOTICE: status hearing reset for 10:45 11/16/01 ; before Judge Henry H. Kennedy . (dcn) (Entered: 10/10/2001)
22 MOTION filed by plaintiff RONALD MARSHALL to dismiss amended complaint [6−1] in light of proceeding with an individual complaint. (nmr) (Entered: 10/11/2001)
23 ORDER by Judge Henry H. Kennedy : granting motion to dismiss amended complaint [6−1] [22−1] by RONALD MARSHALL ; dismissing without prejudice plaintiff Ronald Marshall from this complaint (N) (dcn) (Entered: 11/01/2001)
SCHEDULING NOTICE: status hearing reset for 11:00 1/11/02 ; before Judge Henry H. Kennedy . (dcn) (Entered: 11/15/2001)
24 OPINION and ORDER by Judge Henry H. Kennedy; denying motion of defendant to dismiss (N) (dcn) (Entered: 01/04/2002)
STATUS HEARING before Judge Henry H. Kennedy : ; granting oral motion of defendant for Julia Perkins to appear pro hace vice in this case; , status hearing set for 10:45 4/26/02 ; Reporter: Dolores Byers (dcn) (Entered: 01/11/2002)
26 ATTORNEY APPEARANCE for defendant DC WATER & SEWER by Julia Perkins (ks) (Entered: 01/23/2002)
25 MOTION filed by defendant DC WATER & SEWER to amend this Court's order of 1/2/02 to include certification of the issues raised for interlocutory appeal under 28 U.S.C. 1292 (b) [24−1] (cdw) (Entered: 01/18/2002)
27 ORDER by Judge Henry H. Kennedy : granting motion to amend this Court's order of 1/2/02 to include certification of the issues raised for interlocutory appeal under 28 U.S.C. 1292 (b) [24−1] [25−1] by DC WATER & SEWER (N) (dcn) (Entered: 02/07/2002)
28 MOTION (CONSENT) filed by plaintiff CHARLES TAYLOR to stay time to file motion for class certification ; exhibits (1) (cdw) (Entered: 04/04/2002)
29 ORDER by Judge Henry H. Kennedy: granting motion to stay time to file motion for class certification [28−1] by CHARLES TAYLOR (N) (dam) (Entered: 04/09/2002)
30 CERTIFIED COPY of order filed in USCA dated 04/19/02, ordering that the petition be denied. USCA # 02−8005 (cp) (Entered: 05/10/2002)
STATUS HEARING before Judge Henry H. Kennedy : within 10 days counsel to address matters and file R16.3; within 20 days joint report & agreed upon proposed order due. Status hearing set for 10:30 1/31/03 ; Reporter: Jackie Wood (dcn) (Entered: 10/02/2002)

Case: 1:01-cv-561 As of: 04/13/2018 01:37 PM EDT 5 of 28

10/25/2002 11/19/2002
12/19/2002 12/30/2002 01/31/2003 05/09/2003 06/23/2003 06/25/2003
06/26/2003 06/30/2003
07/03/2003 08/19/2003 09/08/2003
09/12/2003
09/22/2003 09/22/2003 09/22/2003
10/07/2003

31 MEET AND CONFER STATEMENT/REPORT PURSUANT TO L.R. 16 filed by plaintiff CHARLES TAYLOR, defendant DC WATER & SEWER, plaintiff RONALD MARSHALL . (cdw) (Entered: 10/30/2002)
32 ORDER by Judge Henry H. Kennedy : discovery shall commence immediately, plaintiff shall have 30 days to file an amended complaint; parties shall have 150 days to conduct discovery; status call set for 01/31/03, 10:30 a.m. (N) (dcn) (Entered: 11/19/2002)
33 AMENDED COMPLAINT by plaintiffs amending complaint [1−1]; jury demand (cdw) (Entered: 12/24/2002)
34 ANSWER TO SECOND AMENDED COMPLAINT [33−1] by defendant DC WATER & SEWER (cdw) (Entered: 01/02/2003)
STATUS HEARING before Judge Henry H. Kennedy : status hearing set for 10:15 5/9/03 ; Reporter: Dolores Byers (dcn) (Entered: 01/31/2003)
STATUS HEARING before Judge Henry H. Kennedy : status hearing set for 10:30 9/26/03 ; Reporter: Cassandra Ellis, Miller Reporting Company. (mpt) (Entered: 05/09/2003)
35 STATUS REPORT (JOINT) by plaintiffs on Proposed Discovery. (mpt) (Entered: 06/24/2003)
36 MOTION filed by plaintiff CHARLES TAYLOR, plaintiff RONALD MARSHALL for Alexander G. Hillery to appear pro hac vice ( 1053 Michigan Ave., NE Washington, DC 20017, (202) 526−7969, , ) ; declaration (1) (mpt) Modified on 06/26/2003 (Entered: 06/26/2003)
STATUS HEARING before Judge Henry H. Kennedy: Reporter: David Kasdan−Miller Reporting (pob) Modified on 06/30/2003 (Entered: 06/27/2003)
37 ORDER by Judge Henry H. Kennedy : granting motion for Alexander G. Hillery to appear pro hac vice ( 1053 Michigan Ave., NE Washington, DC 20017, (202) 526−7969, , ) [36−1] by RONALD MARSHALL, CHARLES TAYLOR (N) (dcn) (Entered: 06/30/2003)
38 ORDER by Judge Henry H. Kennedy : discovery closes 8/22/03 ; plaintiff shall designate expert witness by 8/23/03 ; (N) (dcn) (Entered: 07/08/2003)
39 MOTION filed by defendant DC WATER & SEWER to continuance of 8/26/03 status hearing (bcs) (Entered: 08/20/2003)
40 NOTICE OF CHANGE OF ADDRESS by David A. Branch representing plaintiff CHARLES TAYLOR . New address: Law Office of David A. Branch 1825 Connecticut Avenue, NW, Suite 690, Washington, DC 20009 (202)785−2805. (bcs) (Entered: 09/09/2003)
41 MOTION filed by plaintiff CHARLES TAYLOR, plaintiff RONALD MARSHALL to compel responses to plaintiffs interrogatories , and requests to production of documents , to re−open discovery , to modify the discovery schedule , and to extend and bifurcate discovery ; exhibits (11) (bcs) (Entered: 09/15/2003)
SCHEDULING NOTICE: status hearing reset for 2:45 10/17/03 ; before Judge Henry H. Kennedy courtroom 14, 4th floor. (dcn) (Entered: 09/22/2003)
42 ORDER by Judge Henry H. Kennedy : finding motion to continuance of 8/26/03 status hearing by DC WATER & SEWER [39−1] moot (N) (dcn) (Entered: 09/22/2003)
43 MOTION (CONSENT) filed by defendant DC WATER & SEWER to extend time in which to respond to plaintiff's motion to compel responses to interrogatories and requests for production of documents, to re−open discovery, to modify the discovery schedule and to extend and bifurcate discovery (bcs) (Entered: 09/23/2003)
44 RESPONSE by defendant DC WATER & SEWER in opposition to motion to compel responses to plaintiffs interrogatories [41−1] by RONALD MARSHALL, CHARLES TAYLOR, motion to production of documents [41−2] by RONALD MARSHALL, CHARLES TAYLOR, motion to re−open discovery [41−3] by RONALD MARSHALL, CHARLES TAYLOR, motion to modify the discovery schedule [41−4]

Case: 1:01-cv-561 As of: 04/13/2018 01:37 PM EDT 6 of 28

10/14/2003 10/17/2003 10/17/2003 10/30/2003 11/06/2003 11/06/2003
11/21/2003 11/24/2003
01/06/2004 02/02/2004 02/03/2004 02/03/2004
02/03/2004 02/05/2004
02/05/2004
02/17/2004

by RONALD MARSHALL, CHARLES TAYLOR, motion to extend and bifurcate discovery [41−5] by RONALD MARSHALL, CHARLES TAYLOR .; exhibits (9) (bcs) (Entered: 10/08/2003)
45 MOTION (CONSENT) filed by defendant DC WATER & SEWER to continue of the 10/17/03 status hearing to a date after 10/30/03 (bcs) (Entered: 10/15/2003)
46 ORDER by Judge Henry H. Kennedy : granting motion to continue of the 10/17/03 status hearing to a date after 10/30/03 [45−1] by DC WATER & SEWER (N) (dcn) (Entered: 10/17/2003)
SCHEDULING NOTICE: status hearing reset for 11:00 11/21/03 ; before Judge Henry H. Kennedy . (dcn) (Entered: 10/17/2003)
47 Consent MOTION for Extension of Time to File Reply Brief by CHARLES TAYLOR. (Branch, David) (Entered: 10/30/2003)
ORDER granting 47 Motion for Extension of Time to File Reply Brief (Kennedy, Henry) (Entered: 11/06/2003)
48 REPLY to opposition to motion re 41 to compel responses to plaintiff's interrogatories and requests for production of documents, to re−open discovery, to modify the discovery schedule, and to extend and bifurcate discovery filed by RONALD MARSHALL, CHARLES TAYLOR. (bcs, ) (Entered: 11/07/2003)
NOTICE of Hearing: Status Conference reset for 11/24/2003 02:00 PM before Judge Henry H. Kennedy. (dcn, ) (Entered: 11/21/2003)
Minute Entry for proceedings held before Judge Henry H. Kennedy : Status Conference held on 11/24/2003. Further Status Conference set for 3/12/2004 09:30 AM before Judge Henry H. Kennedy. (Court Reporter Dolores Byers.) (dcn, ) (Entered: 11/24/2003)
50 Order extending discovery. Signed by Judge Henry H. Kennedy, Jr., on January 6, 2004. (FL, ) (Entered: 01/06/2004)
51 ENTERED IN ERROR.....MOTION for Protective Order by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Pivec, Mary) Modified on 2/3/2004 (bcs, ). (Entered: 02/02/2004)
52 Amended MOTION for Protective Order by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Attachments: # 1 # 2)(Pivec, Mary) (Entered: 02/03/2004)
"NOTICE OF CORRECTED DOCKET ENTRY. Document No. 51 was entered in error and counsel is instructed to refile the motion for protective order and include the motion with the memorandum in support as one document and the attachments and order are to be exhibits to the motion." (bcs, ) (Entered: 02/03/2004)
53 MOTION for Protective Order by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Attachments: # 1 Text of Proposed Order # 2 Exhibit A# 3 Exhibit B)(Pivec, Mary) (Entered: 02/03/2004)
54 Memorandum in opposition to motion re 53 and Plaintiffs' Cross−Motion to (1) Compel the Defendant to Produce Mr. Leonard Benson and Mr. Walter Bailey for Depositions Upon Oral Examination, and (2) Enlarge Discovery for a Sufficient Period to Permit Said Depositions to be Taken and Utilized by the Plaintiffs in Their Motion for Class Certification filed by CHARLES TAYLOR. (Branch, David) Additional attachment(s) added on 2/10/2004 (bcs, ). (Entered: 02/05/2004)
55 Cross MOTION to Compel the defendant to produce Mr. Leonard Benson and Mr. Walter Bailey for depositions upon oral examination and MOTION to Enlarge Discovery for a sufficient period to permit said depositions to be taken and utilized by the plaintiffs in their motion for class certification by RONALD MARSHALL, CHARLES TAYLOR. (For viewing see document No. 54 ) (bcs, ) (Entered: 02/10/2004)
56 ENTERED IN ERROR.....REPLY to opposition to motion re 55 Plaintiff's Motion to Compel and to Enlarge Discovery filed by DISTRICT OF COLUMBIA WATER

Case: 1:01-cv-561 As of: 04/13/2018 01:37 PM EDT 7 of 28

02/17/2004 02/19/2004 02/20/2004 02/24/2004 02/27/2004 03/01/2004
03/09/2004 03/11/2004 03/19/2004 03/22/2004 03/29/2004 04/02/2004
04/02/2004 04/05/2004

AND SEWER AUTHORITY. (Attachments: # 1 Exhibit Order)(Pivec, Mary) Modified on 2/20/2004 (bcs, ). (Entered: 02/17/2004)
57 Memorandum in opposition to motion re 55 Plaintiff's Motion to Compel and to Enlarge Discovery filed by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Attachments: # 1 Exhibit Order)(Pivec, Mary) (Entered: 02/17/2004)
58 MOTION to Stay re 50 Order Extending Discovery by CHARLES TAYLOR. (Branch, David) (Entered: 02/19/2004)
"NOTICE OF CORRECTED DOCKET ENTRY. Document No. 56 was entered in error and counsel has already refile the memorandum in opposition correctly." (bcs, ) (Entered: 02/20/2004)
59 MOTION for Protective Order by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Attachments: # 1 Exhibit Notice of Deposition)(Pivec, Mary) (Entered: 02/24/2004)
60 REPLY to opposition to motion re 55 Plaintiffs' Cross−Motion to Compel and to Enlarge Discovery filed by CHARLES TAYLOR. (Branch, David) (Entered: 02/27/2004)
61 Memorandum in opposition to motion re 59 and Plaintiffs Cross−Motion to: (1) Compel the Defendantto Produce its 30(b)(6) Representative for Deposition Upon Oral Examination and (2) Enlarge Discovery for a Sufficient Period to Permit Said Deposition to be Taken and Utilized by the Plaintiffs in their Motion for Class Certification filed by CHARLES TAYLOR. (Attachments: # 1 Text of Proposed Order # 2 Exhibit Exhibits A−D)(Branch, David) (Entered: 03/02/2004)
62 MOTION for Sanctions by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B# 3 Exhibit Exhibit C)(Pivec, Mary) (Entered: 03/09/2004)
Set/Reset Hearings: The Status hearing presently scheduled for March 12, 2004, at 10:15 A.M. is hereby cancelled and shall be rescheduled by the clerk after the court has resolved the most recent discovery disputes. (Kennedy, Henry) (Entered: 03/11/2004)
63 Consent MOTION for Extension of Time to File Response/Reply as to 62 MOTION for Sanctions by CHARLES TAYLOR. (Attachments: # 1 Text of Proposed Order)(Branch, David) (Entered: 03/19/2004)
Minute order re 63 granting plaintiffs' consent motion for an extension of time to file plaintiffs' opposition to the defendant's motion for sanctions. Signed by Judge Henry H. Kennedy, Jr., on March 22, 2004. (FL, )Official paperless order Modified on 3/22/2004 (FL, ). (Entered: 03/22/2004)
64 Memorandum in opposition to motion re 62 filed by CHARLES TAYLOR. (Attachments: # 1 Exhibit District of Columbia Legal Ethics Committee Opinion No. 302)(Branch, David) (Entered: 03/29/2004)
65 Emergency MOTION for Temporary Restraining Order and Motion for a Preliminary Injunction by CHARLES TAYLOR. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B# 3 Exhibit Exhibit C# 4 Exhibit Exhibit D# 5 Exhibit Exhibit E# 6 Exhibit Exhibit F# 7 Exhibit Exhibit G# 8 Exhibit Exhibit H# 9 Exhibit Exhibit I# 10 Exhibit Exhibit J# 11 Text of Proposed Order Proposed Order)(Branch, David) (Entered: 04/02/2004)
66 Memorandum in opposition to motion re 65 Request for TRO filed by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Attachments: # 1 Exhibit # 2 Exhibit)(Pivec, Mary) (Entered: 04/02/2004)
67 Second MOTION to Compel the Defendant to Fully Respond to the Plaintiffs' Interrogatories and Requests for Production of Documents, and Plaintiffs' Motion, in the Alternative, to Preclude or Estop the Defendant from Using Any Workforce Data in Opposition to the Plaintiffs' Class Certification Motion Other Than the Workforce Data the Defendant Has Produced in Response to the Plaintiffs' Interrogatories and Requests for Production of Documents by CHARLES TAYLOR. (Attachments: # 1

Case: 1:01-cv-561 As of: 04/13/2018 01:37 PM EDT 8 of 28

04/05/2004 04/06/2004 04/06/2004 04/06/2004 04/07/2004
04/12/2004 04/12/2004 04/14/2004
04/15/2004
04/18/2004 04/21/2004 04/29/2004 05/04/2004

Text of Proposed Order # 2 Notice of Filing of Bulky Exhibits)(Branch, David) (Entered: 04/05/2004)
68 MOTION to preclude or estop the defendant from using any workforce data...;(SEE DOCUMENT NO. 67 FOR THE IMAGE OF THE PLEADING) by CHARLES TAYLOR. (rje, ) (Entered: 04/06/2004)
69 Consent MOTION to Strike April 2, 2004 Opposition Brief by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Pivec, Mary) (Entered: 04/06/2004)
70 Memorandum in opposition to motion re 65 TRO, and preliminary injunction filed by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Attachments: # 1 Exhibit # 2 Exhibit)(Pivec, Mary) Modified on 4/7/2004 (rje, ). (Entered: 04/06/2004)
71 MOTION for Leave to File Amended Opposition to plaintiff's motion for a temporary retraining order and preliminary injunction; (SEE DOCUMENT NO. 69 FOR THE IMAGE OF THE PLEADING) by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (rje, ) (Entered: 04/07/2004)
Minute order re 69 granting defendant's consent motion to strike its April 2, 2004, opposition memorandum and for leave to submit for consideration its April 5, 2004, amended opposition to plaintiff's motion for a temporary restraining order and a preliminary injunciton. Signed by Judge Henry H. Kennedy, Jr., on April 7, 2004. Official paperless order(FL, ) (Entered: 04/07/2004)
72 Consent MOTION for Extension of Time to File Response/Reply by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Pivec, Mary) (Entered: 04/12/2004)
73 REPLY to opposition to motion re 65 filed by CHARLES TAYLOR. (Branch, David) (Entered: 04/12/2004)
74 Consent MOTION to Amend/Correct 73 Reply to opposition to Motion, 65 Emergency MOTION for Temporary Restraining Order and Motion for a Preliminary Injunction by CHARLES TAYLOR. (Attachments: # 1 Exhibit Plaintiffs' Amended Reply# 2 Exhibit Revised Declaration of Abdus−Sattar Hussain Mulla# 3 Text of Proposed Order)(Branch, David) (Entered: 04/14/2004)
Minute order re 74 granting plaintiffs' consent motion to substitute the declaration of Abdus−Sattar Hassain Mulla in place of his declaration filed with the plaintiffs' motion on April 2, 2004, npt April 2, 2004. Also granting plaintiffs' consent motion to substitute the amended reply to the defendant's opposition to the plaintiffs' combined motion for a temporary restraining order and for a preliminary injunction in place of the plaintiffs' reply filed on April 12, 2004, npt April 12, 2004. Signed by Judge Henry H. Kennedy, Jr., on April 15, 2004. Official paperless order(FL, ) (Entered: 04/15/2004)
MINUTE ORDER denying 65 : Motion for TRO AND Preliminary Injunction (Kennedy, Henry) (Entered: 04/18/2004)
75 Cross MOTION for Sanctions and for Costs by CHARLES TAYLOR. (Branch, David) (Entered: 04/21/2004)
76 Consent MOTION for Extension of Time to File Response/Reply to Renewed Motion to Compel by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Pivec, Mary) (Entered: 04/29/2004)
MINUTE ORDER granting 72 Motion for Extension of Time to File Response/Reply re 72 Consent MOTION for Extension of Time to File Response/Reply, 76 Consent MOTION for Extension of Time to File Response/Reply to Renewed Motion to Compel, granting 76 Motion for Extension of Time to File Response/Reply re 72 Consent MOTION for Extension of Time to File Response/Reply, 76 Consent MOTION for Extension of Time to File Response/Reply to Renewed Motion to Compel (Kennedy, Henry) (Entered: 05/04/2004)

Case: 1:01-cv-561 As of: 04/13/2018 01:37 PM EDT 9 of 28

05/05/2004 05/06/2004 05/10/2004 05/10/2004 05/11/2004 05/28/2004 06/01/2004
06/01/2004 06/02/2004 06/07/2004
06/22/2004 07/02/2004 08/06/2004 09/24/2004 09/24/2004 09/24/2004

77 MOTION for Extension of Time to File Response/Reply to Cross−Motion for Sanctions and Costs by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Pivec, Mary) (Entered: 05/05/2004)
78 Amended MOTION for Extension of Time to File Its Opposition to Plaintiff's Cross−Motion for Sanctions and Costs by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Pivec, Mary) (Entered: 05/06/2004)
79 Memorandum in opposition to motion re 75 Cross Motion for Sanctions and Costs filed by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Attachments: # 1 # 2 # 3 # 4)(Pivec, Mary) (Entered: 05/10/2004)
80 MOTION for Extension of Time to File its Opposition to Plaintiff's Renewed Motion to Compel by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Pivec, Mary) (Entered: 05/10/2004)
81 Memorandum in opposition to motion re 67 Renewed Motion to Compel filed by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12)(Pivec, Mary) (Entered: 05/11/2004)
82 Consent MOTION for Extension of Time to File Response/Reply as to 79 Memorandum in Opposition Filed Out−of−Time by CHARLES TAYLOR. (Attachments: # 1 Text of Proposed Order)(Branch, David) (Entered: 05/28/2004)
Minute order granting 82 plaintiffs' consent motion for an extension of time to file the plaintiffs' reply to the defendant's opposition to the plaintiffs' cross−motion for sanctions and for costs, filed out−of−time. The plaintiffs' reply to the defendant's opposition to the plaintiffs' motion for sanctions and for costs is due by May 31, 2004. Signed by Judge Henry H. Kennedy, Jr., on June 1, 2004. Official paperless order (FL, ) (Entered: 06/01/2004)
83 REPLY to opposition to motion re 75 filed by CHARLES TAYLOR. (Branch, David) (Entered: 06/01/2004)
84 Consent MOTION for Extension of Time to File Response/Reply as to 81 Memorandum in Opposition by CHARLES TAYLOR. (Branch, David) (Entered: 06/02/2004)
Minute order granting 84 plaintiffs' consent motion for an extension of time through June 14, 2004, to file the plaintiffs' reply to the defendant's opposition to the plaintiffs' motion to renewed motion to compel the defendant to fully respond to the plaintiffs' interrogatories and requests for production of documents. Responses due by 6/14/2004 Replies due by 6/22/2004. Signed by Judge Henry H. Kennedy, Jr., on June 7, 2004. Official paperless order (FL, ) (Entered: 06/07/2004)
85 Second MOTION for Extension of Time to File Response/Reply as to 81 Memorandum in Opposition Filed Out−of−Time by CHARLES TAYLOR. (Attachments: # 1 Exhibit Exhibit A−−Plaintiffs' Reply# 2 Text of Proposed Order)(Branch, David) (Entered: 06/22/2004)
MINUTE ORDER granting 85 Motion for Extension of Time to File Response/Reply re 85 Second MOTION for Extension of Time to File Response/Reply as to 81 Memorandum in Opposition Filed Out−of−Time (Kennedy, Henry) (Entered: 07/02/2004)
86 NOTICE of Change of Address by Mary E. Pivec (Pivec, Mary) (Entered: 08/06/2004)
87 NOTICE of Change of Address by Mary E. Pivec (Pivec, Mary) (Entered: 09/24/2004)
88 ORDER denying 41 Motion to Compel, denying 41 Motion to Produce, denying 41 Motion for Discovery, denying 41 Motion to Amend/Correct, granting in part and denying in part 41 Motion for Extension of Time to Complete Discovery (Kennedy, Henry) (Entered: 09/24/2004)
89 ORDER denying 52 Motion for Protective Order, denying 53 Motion for Protective Order, granting 55 Motion to Compel, granting 55 Motion for Extension of Time to Complete Discovery (Kennedy, Henry) (Entered: 09/24/2004)

Case: 1:01-cv-561 As of: 04/13/2018 01:37 PM EDT 10 of 28

09/24/2004 10/25/2004 10/26/2004 10/26/2004 10/26/2004 12/07/2004 12/07/2004
12/17/2004
12/28/2004
01/21/2005 01/21/2005 02/01/2005
02/04/2005
02/14/2005 02/15/2005
02/18/2005 02/22/2005

90 ORDER granting 58 Motion to Stay (Kennedy, Henry) (Entered: 09/24/2004)
91 ORDER granting 59 Motion for Protective Order (Kennedy, Henry) (Entered: 10/25/2004)
MINUTE ORDER denying 62 Motion for Sanctions (Kennedy, Henry) (Entered: 10/26/2004)
MINUTE ORDER denying 75 Motion for Sanctions (Kennedy, Henry) (Entered: 10/26/2004)
92 ORDER lifting stay and setting deadline for the filing of motion for class certification. (Kennedy, Henry) (Entered: 10/26/2004)
93 First MOTION for Extension of Time to File Plaintiffs' Motion for Class Certification by CHARLES TAYLOR. (Branch, David) (Entered: 12/07/2004)
94 ERRATA re Plaintiffs' motion for additional time to file Plaintiffs' motion for class certification by CHARLES TAYLOR. (Attachments: # 1 Plaintiffs' motion for additional time to file Plaintiffs' motion for class certication# 2 Affidavit Affidavit of Alexander Vekker, Ph.D.# 3 Text of Proposed Order)(Branch, David) (Entered: 12/07/2004)
95 Memorandum in opposition to motion re 93 Extension of Time filed by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2# 3 Exhibit Exhibit 3# 4 Exhibit Exhibit 4)(Pivec, Mary) (Entered: 12/17/2004)
MINUTE ORDER granting 93 First MOTION for Extension of Time to File Plaintiffs' Motion for Class Certification. The deadline for the filing of Plaintiffs' Motion for Class Certification is extended to January 21, 2005. Counsel for plaintiffs should not anticipate that the court will grant ANY further extension of time to file a motion for class certification. (Kennedy, Henry) (Entered: 12/28/2004)
96 Second MOTION for Extension of Time to File Motion for Class Certification by CHARLES TAYLOR. (Branch, David) (Entered: 01/21/2005)
97 MOTION to Certify Class by CHARLES TAYLOR. (Branch, David) (Entered: 01/22/2005)
98 MOTION to Strike 97 MOTION to Certify Class by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Attachments: # 1 Exhibit Exhibht 1 Email Dated 1/27/05# 2 Exhibit Exhibit 2 Email Dated 1/31/05)(Pivec, Mary) (Entered: 02/01/2005)
99 MOTION for Leave to File Amended Motion for Class Certification by CHARLES TAYLOR. (Attachments: # 1 Affidavit Hillery Affidavit in support of Plaintiff's Motion to File Amended Motion for Class Certification# 2 Amended Motion for Class Certification# 3 Brief in Support of Plaintiff's Amended Motion for Class Certification# 4 Notice of Filing of Bulky Exhibits to the Plaintiff's Amended Motion for Class Certification# 5 Text of Proposed Order)(Branch, David) (Entered: 02/04/2005)
100 Memorandum in opposition to motion re 98 filed by CHARLES TAYLOR. (Branch, David) (Entered: 02/15/2005)
101 Memorandum in opposition to motion re 99 filed by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Attachments: # 1 Exhibit Expert Report# 2 Exhibit Affidavit# 3 Exhibit Notice# 4 Exhibit E−mail)(Pivec, Mary) (Entered: 02/15/2005)
102 ERRATA Expert Report by CHARLES TAYLOR. (Branch, David) (Entered: 02/18/2005)
103 RESPONSE in support of re 98 Motion to Strike Plaintiff's Motion for Class Certification filed by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Pivec, Mary) Modified on 2/23/2005 (lc, ). (Entered: 02/22/2005)

Case: 1:01-cv-561 As of: 04/13/2018 01:37 PM EDT 11 of 28

02/24/2005 02/25/2005 03/09/2005
03/09/2005 03/09/2005 04/13/2005 04/13/2005 05/11/2005 05/11/2005 05/25/2005 06/07/2005 06/07/2005 06/07/2005 06/08/2005
06/18/2005
06/24/2005 06/27/2005

104 REPLY to opposition to motion re 99 filed by CHARLES TAYLOR. (Branch, David) (Entered: 02/24/2005)
105 MOTION to Strike 104 Reply to opposition to Motion by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Pivec, Mary) (Entered: 02/25/2005)
MINTE ORDER denying 67 Second MOTION to Compel the Defendant to Fully Respond to the Plaintiffs'Interrogatories and Requests for Production of Documents, and Plaintiffs'Motion, in the Alternative, to Preclude or Estop the Defendant from Using Any Workforce Data in Opposition to the Plaintiffs' Class Certification Motion Other Than the Workforce Data the Defendant Has Produced inResponse to the Plaintiffs' Interrogatories and Requests for Production of Documents nunc pro tunc September 24, 2004. (Kennedy, Henry) (Entered: 03/09/2005)
106 ORDER granting 96 Motion for Extension of Time, denying 98 Motion to Strike, granting 99 Motion for Leave to File, granting 105 Motion to Strike. (Kennedy, Henry) (Entered: 03/09/2005)
107 AMENDED MOTION for Class Certification by CHARLES TAYLOR. (Attachments: # 1 Brief in Support# 2 Bulky Exhibit Notice)(cp, ) (Entered: 03/10/2005)
108 NOTICE of Appearance by Mark E. Nagle on behalf of DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY (Pivec, Mary) Modified on 4/14/2005 (nmw, ). (Entered: 04/13/2005)
109 MOTION for Extension of Time to File Response/Reply as to 107 MOTION for Class Certification by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Pivec, Mary) (Entered: 04/13/2005)
MINUTE ORDER granting 109 Motion for Extension of Time to File Response as to 107 MOTION for Class Certification. Defendant's response is due July 1, 2005. (Kennedy, Henry) (Entered: 05/11/2005)
Set/Reset Deadlines: Defendant's Responses due by 7/1/2005 to Class Certification. (rew, ) (Entered: 05/11/2005)
110 MOTION to Compel by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Attachments: # 1 Exhibit Letter# 2 Exhibit Expert Report# 3 Exhibit Discovery Responses)(Pivec, Mary) (Entered: 05/25/2005)
111 MOTION for Extension of Time to File Response/Reply as to 110 MOTION to Compel and for Sanctions by CHARLES TAYLOR. (Attachments: # 1 Text of Proposed Order proposed order)(Branch, David) (Entered: 06/07/2005)
112 Order denying without prejudice 110 defendant's motion to compel and for sanctions. Defendant has not complied with LCvR 7.1(m). Signed by Judge Henry H. Kennedy, Jr., on June 7, 2005. (FL, ) (Entered: 06/07/2005)
Minute order denying as it is moot 111 plaintiff's motion for an extension of time to file opposition to defendant's motion for sanctions and to compel. Signed by Judge Henry H. Kennedy, Jr., on June 7, 2005. (FL, ) (Entered: 06/07/2005)
113 MOTION to Compel by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Attachments: # 1 Exhibit Exhibit 1 −− Letter# 2 Exhibit Exhibit 2 −− Expert Report# 3 Exhibit Exhibit 3 −− Responses to Discovery)(Pivec, Mary) (Entered: 06/08/2005)
114 MINUTE ORDER denying 113 Motion to Compel without prejudice because the motion was filed without compliance with Local Rule LCvR 7.1(m)and this court's order of June 7, 2005 (#112). If this motion is filed again without compliance with the rule and this court's order it will be denied with prejudice. (Kennedy, Henry) (Entered: 06/18/2005)
115 MOTION for Extension of Time to File Response/Reply To Motion for Class Certification by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Pivec, Mary) (Entered: 06/24/2005)
116 Unopposed MOTION for Extension of Time to File Response/Reply To Plaintiff's Motion For Class Certification by DISTRICT OF COLUMBIA WATER AND

Case: 1:01-cv-561 As of: 04/13/2018 01:37 PM EDT 12 of 28

06/27/2005 06/27/2005 07/20/2005 07/21/2005 08/17/2005 08/23/2005 08/23/2005 09/16/2005 09/16/2005 09/16/2005 09/19/2005 09/26/2005 09/27/2005
11/15/2005 11/16/2005

SEWER AUTHORITY. (Pivec, Mary) (Entered: 06/27/2005)
Minute order granting 115 and 116 unopposed motion for enlargement of time. Defendant shall have up to and including July 29, 2005, within which to respond to plaintiffs' amended motion for class certification. Signed by Judge Henry H. Kennedy, Jr., on June 27, 2005. Official paperless order (FL, ) (Entered: 06/27/2005)
Set/Reset Deadlines: Defendant's Response to Plaintiff's amended motion for class certification due by 7/29/2005 (rew, ) (Entered: 06/27/2005)
117 Unopposed MOTION for Extension of Time to File Response/Reply by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Pivec, Mary) (Entered: 07/20/2005)
Minute order granting 117 defendant's unopposed motion for enlargement of time. Defendant has up to and including August 17, 2005, within which to file a response to plaintiffs' motion for class certification. Signed by Judge Henry H. Kennedy, Jr., on July 21, 2005. (FL, ) (Entered: 07/21/2005)
118 Unopposed MOTION for Extension of Time to File Response/Reply as to 107 MOTION for Class Certification by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Pivec, Mary) (Entered: 08/17/2005)
Minute order granting 118 defendant's unopposed motion for enlargement of time. Defendant has up to and including September 16, 2005, to file its response to plaintiffs' motion for class certification. Signed by Judge Henry H. Kennedy, Jr., on August 23, 2005. Official paperless order (FL, ) (Entered: 08/23/2005)
Set/Reset Deadlines: Defendant's Responce to Class Certification due by 9/16/2005 (rew, ) (Entered: 08/23/2005)
119 Memorandum in opposition to motion re 107 filed by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Pivec, Mary) Additional attachment(s) added on 9/19/2005 (lc, ). (Entered: 09/16/2005)
120 ENTERED IN ERROR.....Memorandum in opposition to motion re 107 filed by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Attachments: # 1 Exhibit 2 Memorandum and Order# 2 Exhibit 3 Affidavit of Arthur Green# 3 Exhibit 4 White Report)(Pivec, Mary) Modified on 9/19/2005 (lc, ). (Entered: 09/16/2005)
121 ENTERED IN ERROR.....NOTICE by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY re 119 Memorandum in Opposition (Pivec, Mary) Modified on 9/19/2005 (lc, ). (Entered: 09/16/2005)
NOTICE OF CORRECTED DOCKET ENTRY: re 120 Memorandum in Opposition,, 121 Notice (Other) were entered in error and the Notice of Filing was added to docket entry #119. (lc, ) (Entered: 09/19/2005)
122 Consent MOTION for Extension of Time to File Response/Reply as to 119 Memorandum in Opposition by CHARLES TAYLOR. (Branch, David) (Entered: 09/26/2005)
Minute order granting 122 plaintiffs' consent motion for extension of time to file reply to defendant's opposition to plaintiffs' motion for class certification. Plaintiffs have up to and including November 15, 2005, to file reply to defendant's opposition to plaintiffs's motion for class certification. Signed by Judge Henry H. Kennedy, Jr., on September 27, 2005. Official paperless order (FL, ) (Entered: 09/27/2005)
123 Consent MOTION for Extension of Time to File Response/Reply as to 107 Memorandum in Opposition to Plaintiff's Motion for Class Certification by CHARLES TAYLOR. (Branch, David) Modified on 11/16/2005 (lc, ). (Entered: 11/15/2005)
Minute order granting 123 plaintiffs' consent motion for an additional extension of time to file plaintiffs' reply to defendant's opposition to plaintiffs' motion for class certification. Plaintiffs have up to and including December 30, 2005, within which to file a reply to defendant's opposition to plaintiffs' motion for class certification. Signed by Judge Henry H. Kennedy, Jr., on November 16, 2005. (FL, ) (Entered: 11/16/2005)

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11/16/2005 12/20/2005 12/21/2005 12/30/2005
01/03/2006 01/05/2006
01/05/2006 01/19/2006 01/19/2006 01/19/2006 01/30/2006 01/30/2006
01/30/2006 02/24/2006 03/09/2006 03/16/2006
03/17/2006
03/18/2006

124 NOTICE OF WITHDRAWAL OF APPEARANCE as to DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. Attorney Mark E. Nagle terminated. (Pivec, Mary) (Entered: 11/16/2005)
Set/Reset Hearings: Motion for class certification set for 1/5/2006 at 02:00 AM in Courtroom 27A before Judge Henry H. Kennedy. (rew, ) (Entered: 12/20/2005)
Set/Reset Hearings: Class Certification Motion Hearing set for 1/5/2006 at 2:00 AM is OFF and reset for 3/3/2006 at 02:00 PM in Courtroom 27A before Judge Henry H. Kennedy. (rew, ) (Entered: 12/21/2005)
125 Consent MOTION for Extension of Time to File Response/Reply as to 119 Memorandum in Opposition to 107 AMENDED MOTION for Class Certification by CHARLES TAYLOR. (Branch, David) Modified on 1/3/2006 (lc, ). (Entered: 12/30/2005)
126 ERRATA by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Attachments: # 1 Exhibit Exhibit 4 to Def. Opp. to Motion for Class Cert.)(Pivec, Mary) (Entered: 01/03/2006)
Minute order granting 125 plaintiffs' third consent motion for extension of time to file reply to defendant's opposition to plaintiffs' motion for class certification. Plaintiffs have up to and including January 31, 2006, within which to file a reply to defendant's opposition to plaintiffs' motion for class certification. Signed by Judge Henry H. Kennedy, Jr., on January 5, 2006. Official paperless order (FL, ) (Entered: 01/05/2006)
Set/Reset Deadlines: Plaintiff's Reply due by 1/31/2006 to defendant's opposition to plaintiff's motion for class certification. (rew, ) (Entered: 01/05/2006)
127 NOTICE of Appearance by Karen Ellen Gray on behalf of DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY (Gray, Karen) (Entered: 01/19/2006)
128 NOTICE Praecipe by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY (Pivec, Mary) (Entered: 01/19/2006)
129 NOTICE Praecipe by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY (Pivec, Mary) (Entered: 01/19/2006)
130 Consent MOTION for Extension of Time to File Reply Brief by CHARLES TAYLOR. (Branch, David) (Entered: 01/30/2006)
Minute order granting 130 plaintiff's consent motion for forty−five day extension of time to file reply brief. Plaintiff shall have up to and including March 16, 2006, within which to file a reply brief. Signed by Judge Henry H. Kennedy, Jr., on January 30, 2006. Official paperless order (FL, ) (Entered: 01/30/2006)
Set/Reset Deadlines: Plaintiff's Reply Brief due by 3/16/2006. (rew, ) (Entered: 01/30/2006)
Remark by the Clerk to Counsel : The Motion Hearing scheduled for 3/3/2006 at 2:00 PM is OFF. (rew, ) (Entered: 02/24/2006)
Set/Reset Hearings: Motion Hearing set for 4/24/2006 at 02:00 PM in Courtroom 27A before Judge Henry H. Kennedy. (rew, ) (Entered: 03/09/2006)
131 WITHDRAWN pursuant to Order entered 4/12/2006.....Joint MOTION to Stay re Order on Motion for Extension of Time to File, by CHARLES TAYLOR. (Attachments: # 1 Text of Proposed Order proposed order staying deadline)(Branch, David) Modified on 4/13/2006 (lc, ). (Entered: 03/17/2006)
132 RESPONSE to 131 Plaintiffs' "Joint" Motion to Stay the Deadline for Plaintiffs' Reply, and for a Status Conference filed by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Attachments: # 1 Exhibit March 15, 2006 e−mail string# 2 Exhibit March 16, 2006 e−mail string)(Gray, Karen) Modified on 3/20/2006 (nmw, ). (Entered: 03/17/2006)
133 ENTERED IN ERROR..... MOTION to Withdraw 131 Joint MOTION to Stay re Order on Motion for Extension of Time to File, to Substitute the Present Motion for the Withdrawn Motion Nunc Pro Tunc, to Stay the Deadline for the Plaintiffs to File

Case: 1:01-cv-561 As of: 04/13/2018 01:37 PM EDT 14 of 28

03/20/2006 03/20/2006
03/23/2006
04/12/2006 04/13/2006 04/21/2006 04/21/2006
04/21/2006 04/21/2006 04/25/2006
07/22/2006 03/13/2007 03/27/2007 03/27/2007

Their Reply to the Defendant's Opposition to the Plaintiffs' Motion to Certify the Class, and for a Status Conference by CHARLES TAYLOR. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B# 3 Exhibit Exhibit C# 4 Exhibit Exhibit D# 5 Exhibit Exhibit E# 6 Exhibit Exhibit F# 7 Exhibit Exhibit G# 8 Exhibit Exhibit H# 9 Text of Proposed Order Proposed Order)(Branch, David) Modified on 3/20/2006 (nmw, ). (Entered: 03/19/2006)
NOTICE OF CORRECTED DOCKET ENTRY: Document No. 133 was entered in error and counsel was instructed to refile said pleading with the signature of an active member of the Court's bar. (nmw, ) (Entered: 03/20/2006)
134 MOTION to Withdraw 131 Joint MOTION to Stay re Order on Motion for Extension of Time to File, to Substitute the Present Motion for the Withdrawn Motion Nunc Pro Tunc, to Stay the Deadline for the Plaintiffs to File Their Reply to the Defendant's Opposition to the Plaintiffs' Motion to Certify the Class, and for a Status Conference by CHARLES TAYLOR. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Text of Proposed Order)(Branch, David) (Entered: 03/20/2006)
135 RESPONSE to 134 Plaintiffs' Motion to Withdraw the Prior Joint Motion, To Substitute the Motion, for a Stay of the Deadline for Their Reply, and for a Status Conference filed by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Attachments: # 1 Exhibit March 17, 2006 e−mail string)(Gray, Karen) Modified on 3/24/2006 (lc, ). (Entered: 03/23/2006)
136 ORDER granting in part and denying in part 134 Motion to Withdraw (Kennedy, Henry) (Entered: 04/12/2006)
Set/Reset Deadlines: Plaintiff's Reply to defendant's opposition to their motion for Class Certification due by 4/21/2006. (rew, ) (Entered: 04/13/2006)
137 Consent MOTION for Extension of Time to File Response/Reply to Defendant's Opposition to Plaintiffs' Motion for Class Certification by CHARLES TAYLOR. (Branch, David) (Entered: 04/21/2006)
Minute order granting 137 plaintiffs' consent motion for an extension to file their reply to the defendant's opposition to the plaintiffs' motion to certify the class. Plaintiffs shall have up to and including July 21, 2006, within which to file a reply to defendant's opposition to plaintiffs' motion to certify the class. Signed by Judge Henry H. Kennedy, Jr., on April 21, 2006. Official paperless order (FL, ) (Entered: 04/21/2006)
Set/Reset Deadlines: Plaintiff's Reply due by 7/21/2006 to Defendants opposition to Plaintiff's motion to Certify. (rew, ) (Entered: 04/21/2006)
Remark by the Clerk to Counsel: The motion hearing scheduled for 4/24/2006 at 2:00 PM is OFF and has been cancelled. (rew, ) (Entered: 04/21/2006)
MINUTE NOTICE: On April 21, 2006, this court granted the unopposed motion of plaintiffs to extend the deadline for the filing of their reply to defendant's opposition to plaintiffs' motion for class certification until July 21, 2006. Counsel should not expect this court to grant any further extensions to complete the briefing with respect to the amended motion for class certification which was made over one year ago and to which an opposition was filed over six months ago. (Kennedy, Henry) (Entered: 04/25/2006)
138 REPLY to opposition to motion re 107 MOTION for Class Certification filed by CHARLES TAYLOR. (Branch, David) (Entered: 07/23/2006)
139 Memorandum Opinion and Order granting in part and denying in part 107 Motion for class certification. (Kennedy, Henry) Modified on 3/15/2007 (FL, ). (Entered: 03/13/2007)
140 MOTION for Reconsideration re 139 Order on Motion for Miscellaneous Relief by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY (Attachments: # 1 Text of Proposed Order)(Gray, Karen) (Entered: 03/27/2007)
141 NOTICE of Appearance by William E. Doyle, Jr on behalf of DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY (Doyle, William) (Entered:

Case: 1:01-cv-561 As of: 04/13/2018 01:37 PM EDT 15 of 28

04/06/2007
04/09/2007
05/09/2007 05/10/2007
05/21/2007 05/30/2007 06/01/2007 06/04/2007 06/11/2007 09/13/2007 09/13/2007 10/17/2007 10/23/2007 10/26/2007 10/26/2007
11/02/2007

03/27/2007)
142 Consent MOTION for Extension of Time to File Response/Reply as to 140 MOTION for Reconsideration re 139 Order on Motion for Miscellaneous Relief and to Stay or Extend Deadline to Submit Case Management Plan(s) re 139 Order on Motion for Miscellaneous Relief by CHARLES TAYLOR (Branch, David) (Entered: 04/06/2007)
Minute order 142 . Plaintiff's consent motion for an extension of time until May 9, 2007, to file a response to defendant's motion for reconsideration is granted and the deadline for the filing of a case management plan is stayed until the court has resolved the motion for reconsideration. Signed by Judge Henry H. Kennedy, Jr., on April 9, 2007. Official paperless order (FL, ) (Entered: 04/09/2007)
143 Consent MOTION for Extension of Time to File Response/Reply as to 140 MOTION for Reconsideration re 139 Order on Motion for Miscellaneous Relief by CHARLES TAYLOR (Branch, David) (Entered: 05/09/2007)
MINUTE ORDER granting 143 Motion for Extension of Time to File Response/Reply to 140 MOTION for Reconsideration. Any opposition to the motion for reconsidertion shall be filed by no later than June 5, 2007. Plaintiff's counsel should not expect any future motion to extend the time to file an opposition (with or without consent) to be granted. (Kennedy, Henry) (Entered: 05/10/2007)
Set Deadlines: Opposition to the motion for reconsideration shall be filed no later than June 5, 2007 (tj ) (Entered: 05/21/2007)
144 ENTERED IN ERROR.....Memorandum in opposition to re 140 MOTION for Reconsideration re 139 Order on Motion for Miscellaneous Relief filed by CHARLES TAYLOR. (Branch, David) Modified on 6/1/2007 (lc, ). (Entered: 05/30/2007)
NOTICE OF CORRECTED DOCKET ENTRY: re 144 Memorandum in Opposition was entered in error at the request of counsel and will be refiled. (lc, ) (Entered: 06/01/2007)
145 Memorandum in opposition to re 140 MOTION for Reconsideration re 139 Order on Motion for Miscellaneous Relief filed by CHARLES TAYLOR. (Branch, David) (Entered: 06/04/2007)
146 REPLY to opposition to motion re 140 MOTION for Reconsideration re 139 Order on Motion for Miscellaneous Relief filed by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Doyle, William) (Entered: 06/11/2007)
147 Memorandum and Order re: 140 . Signed by Judge Henry H. Kennedy, Jr., on September 13, 2007. (FL, ) (Entered: 09/13/2007)
Set Hearings: Status Conference is set for 10/19/2007 @ 03:00 PM in Courtroom 27A before Judge Henry H. Kennedy. (tj ) (Entered: 09/13/2007)
Reset Hearings: Status Conference currently scheduled for 10/19/07 is VACATED and rescheduled for 10/26/2007 @ 2:30 PM in Courtroom 27A before Judge Henry H. Kennedy. (tj ) (Entered: 10/17/2007)
148 MOTION to Appoint Counsel Motion to Appoint Class Counsel by CHARLES TAYLOR (Branch, David) (Entered: 10/23/2007)
149 MEET AND CONFER STATEMENT. (Doyle, William) (Entered: 10/26/2007)
Minute Entry for proceedings held before Judge Henry H. Kennedy : Status Conference held on 10/26/2007. Plaintiff's motion to amend the complaint due by 11/9/2007; Opposition to the motion to amend due by 12/4/2007; Reply due by 12/18/2007; Next status conference is set for 2/8/2008 @ 10:15 AM in Courtroom 27A before Judge Henry H. Kennedy. (Court Reporter Crystal Pilgrim.) (tj ) (Entered: 10/26/2007)
150 RESPONSE to 148 Plaintiff's Motion for Appointment of Class Counsel filed by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Doyle, William) Modified on 11/5/2007 (lc, ). (Entered: 11/02/2007)

Case: 1:01-cv-561 As of: 04/13/2018 01:37 PM EDT 16 of 28

11/09/2007 11/10/2007 11/13/2007
11/13/2007 11/14/2007
11/16/2007
11/20/2007 12/04/2007 12/18/2007 12/19/2007 12/19/2007 12/19/2007 12/19/2007 01/03/2008 02/07/2008 02/08/2008

151 Order granting 148 plaintiff's unopposed motion for appointment of class counsel. David A. Branch and Alexander Hillary, II are appointed as class counsel. Signed by Judge Henry H. Kennedy, Jr., on November 9, 2007. (FL, ) (Entered: 11/09/2007)
152 Consent MOTION for Extension of Time to Amend the Complaint to Expand the Class Period by CHARLES TAYLOR (Branch, David) (Entered: 11/10/2007)
Minute order granting 152 plaintiffs' consent motion for an extension of time to file plaintiffs' motion to amend the complaint to expand the class period. Plaintiffs shall have up to and including November 13, 2007, to file a motion to amend the complaint to expand the class period. Signed by Judge Henry H. Kennedy, Jr., on November 13, 2007. Official paperless order (FL, ) (Entered: 11/13/2007)
154 ENTERED IN ERROR.....Third AMENDED COMPLAINT against DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY filed by CHARLES TAYLOR.(lc, ) Modified on 11/20/2007 (lc, ). (Entered: 11/19/2007)
153 MOTION Leave of Court to File Motion to Enlarge Class Period Nunc Pro Tunc to Tuesday, November 13, 2007 by CHARLES TAYLOR (Attachments: # 1 Exhibit Motion to# 2 Exhibit Complaint# 3 Exhibit First Amended Complaint# 4 Exhibit Second Amended Complaint# 5 Exhibit Third Amended Complaint# 6 Exhibit Parties Respective Case Mgmt Plans)(Branch, David) (Entered: 11/14/2007)
Minute order granting 153 plaintiffs' motion for leave of court to file plaintiffs' motion to amend the complaint to enlarge the class period nunc pro tunc to Tuesday, November 13, 2007. Plaintiffs' motion to amend the complaint to enlarge the class period is deemed served and filed nunc pro tunc to November 13, 2007. Signed by Judge Henry H. Kennedy, Jr., on November 16, 2007. Official paperless order (FL, ) (Entered: 11/16/2007)
NOTICE OF CORRECTED DOCKET ENTRY: re 154 Amended Complaint was entered in error because the filing is premature. (lc, ) (Entered: 11/20/2007)
155 Memorandum in opposition to re 153 MOTION Leave of Court to File Motion to Enlarge Class Period Nunc Pro Tunc to Tuesday, November 13, 2007 filed by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Doyle, William) (Entered: 12/04/2007)
156 Consent MOTION for Extension of Time to File Reply to Motion to Amend by CHARLES TAYLOR (Branch, David) (Entered: 12/19/2007)
157 ENTERED IN ERROR.....Consent MOTION for Extension of Time to File Response/Reply as to 156 Consent MOTION for Extension of Time to File Reply to Motion to Amend by CHARLES TAYLOR (Attachments: # 1 Text of Proposed Order)(Branch, David) Modified on 12/19/2007 (lc, ). (Entered: 12/19/2007)
NOTICE OF CORRECTED DOCKET ENTRY: re 157 Consent MOTION for Extension of Time to File Response/Reply as to 156 Consent MOTION for Extension of Time to File Reply to Motion to Amend was entered in error at the request of counsel. (lc, ) (Entered: 12/19/2007)
Minute order granting 156 plaintiff's consent motion for extension to file reply to motion to file amended complaint. Plaintiff shall have up to and including January 2, 2008, to file a reply brief. Signed by Judge Henry H. Kennedy, Jr., on December 19, 2007. Official paperless order(FL, ) (Entered: 12/19/2007)
Reset Deadlines: Reply brief due by 1/2/2008. (tj ) (Entered: 12/19/2007)
158 REPLY to opposition to motion re 153 MOTION Leave of Court to File Motion to Enlarge Class Period Nunc Pro Tunc to Tuesday, November 13, 2007 filed by CHARLES TAYLOR. (Branch, David) (Entered: 01/03/2008)
159 ORDER denying [153−2] Plaintiffs' Motion to Amend the Complaint to Enlarge the Class Period. Signed by Judge Henry H. Kennedy, Jr. on February 7, 2008. (NP) (Entered: 02/07/2008)
Minute Entry for proceedings held before Judge Henry H. Kennedy: Status Conference held on 2/8/2008. Proposed scheduling order to be submitted by 2/13/08. Next status conference is set for 3/6/2009 @ 09:45 AM in Courtroom 4 before Judge Henry H.

Case: 1:01-cv-561 As of: 04/13/2018 01:37 PM EDT 17 of 28

03/05/2008 04/09/2008 04/15/2008 04/23/2008 04/23/2008
04/23/2008
04/30/2008 04/30/2008 05/05/2008
05/06/2008
05/07/2008 07/24/2008 08/01/2008 08/04/2008

Kennedy. (Court Reporter Annie Shaw.) (tj ) (Entered: 02/14/2008)
160 SECOND SCHEDULING ORDER AND CASE MANAGEMENT PLAN. Signed by Judge Henry H. Kennedy, Jr. on March 5, 2008. (NP) (Entered: 03/05/2008)
161 MOTION To Clarify the Relevant Class for Notice Purposes by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY (Attachments: # 1 Memorandum of Law in Support, # 2 Proposed Order)(Doyle, William) (Entered: 04/09/2008)
162 Joint MOTION for Extension of Time to Issue Class Notice by CHARLES TAYLOR, DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY (Attachments: # 1 Proposed Order)(Doyle, William) (Entered: 04/15/2008)
163 Consent MOTION for Extension of Time to File Response/Reply as to 161 MOTION To Clarify the Relevant Class for Notice Purposes by CHARLES TAYLOR (Attachments: # 1 Text of Proposed Order)(Branch, David) (Entered: 04/23/2008)
MINUTE ORDER granting 162 Joint Motion for Extension of Time to Issue Class Notice. Accordingly, the parties shall file a draft class notice for the court's approval 14 days after the court rules on Defendants Motion to Clarify the Relevant Class Members for Notice Purposes. Signed by Judge Henry H. Kennedy, Jr. on April 23, 2008. (NP) (Entered: 04/23/2008)
MINUTE ORDER granting 163 Plaintiffs' Consent Motion for an Extension of Time through April 30, 2008 to File their Opposition to the Defendant's Motion to Clarify the Relevant Class for Notice Purposes. Accordingly, plaintiffs' response is due on or before April 30, 2008. Signed by Judge Henry H. Kennedy, Jr. on April 23, 2008. (NP) (Entered: 04/23/2008)
164 Memorandum in opposition to re 161 MOTION To Clarify the Relevant Class for Notice Purposes filed by CHARLES TAYLOR. (Branch, David) (Entered: 04/30/2008)
167 Corrected Memorandum in opposition to re 161 MOTION To Clarify the Relevant Class for Notice Purposes filed by CHARLES TAYLOR. (nmw, ) (Entered: 05/07/2008)
165 Consent MOTION to Substitute the Attached "Corrected Brief in Opposition to the Defendant's 'Motion to Clarify the Relevant Class for Notice Purposes'" for the Brief Plaintiffs Filed on April 30, 2008, and to File the Corrected Brief NUNC PRO TUNC to April 30, 2008 by CHARLES TAYLOR (Attachments: # 1 Text of Proposed Order)(Branch, David) (Entered: 05/05/2008)
MINUTE ORDER granting 165 Plaintiffs' Consent Motion to Substitute the Attached Corrected Brief in Opposition to the Defendant's Motion to Clarify the Relevant Class for Notice Purposes for the Brief Filed on April 30, 2008, and to File the Corrected Brief Nunc Pro Tunc to April 30, 2008. Signed by Judge Henry H. Kennedy, Jr. on May 6, 2008. (NP) (Entered: 05/06/2008)
166 REPLY to opposition to motion re 161 MOTION To Clarify the Relevant Class for Notice Purposes filed by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Doyle, William) (Entered: 05/07/2008)
168 ORDER denying 161 Defendant's Motion to Clarify the Relevant Class Members for Notice Purposes. Signed by Judge Henry H. Kennedy, Jr. on July 24, 2008. (NP) (Additional attachment(s) added on 7/24/2008: # 1 order) (NP, ). (Entered: 07/24/2008)
169 Joint MOTION for Extension of Time to Complete Case Management Deadlines by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY (Doyle, William) (Entered: 08/01/2008)
MINUTE ORDER granting 169 Joint Motion for an Extension of Case Management Deadlines. This court adopts and the parties shall be bound by the briefing schedule they propose and that is set forth in their Joint Motion for an Extension of Case Management Deadlines 169 . Signed by Judge Henry H. Kennedy, Jr. on August 4, 2008. (NP) (Entered: 08/04/2008)

Case: 1:01-cv-561 As of: 04/13/2018 01:37 PM EDT 18 of 28

08/04/2008
08/11/2008 08/11/2008
08/22/2008 09/02/2008 09/23/2008 12/24/2008 01/26/2009 02/11/2009 02/27/2009
08/01/2009
08/18/2009 08/19/2009 08/25/2009
09/08/2009 09/24/2009 11/10/2009

Reset Deadlines: Non−expert discovery will close on January 23, 2009. Dispositive motions are due on August 10, 2009; responses to dispositive motions are due on September 11, 2009; replies to dispositive motions are due on October 13, 2009. Signed by Judge Henry H. Kennedy, Jr. on August 4, 2008. (NP) (Entered: 08/04/2008)
170 MOTION to Stay Class Notice and Discovery by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY (Doyle, William) (Entered: 08/11/2008)
171 MEMORANDUM re 170 MOTION to Stay Class Notice and Discovery filed by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Doyle, William) (Entered: 08/11/2008)
172 Memorandum in opposition to re 170 MOTION to Stay Class Notice and Discovery filed by CHARLES TAYLOR. (Branch, David) (Entered: 08/22/2008)
173 REPLY to opposition to motion re 170 MOTION to Stay Class Notice and Discovery filed by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Doyle, William) (Entered: 09/02/2008)
174 ORDER denying 170 Motion to Stay Class Notice and Discovery Pending Appeal. Signed by Judge Henry H. Kennedy, Jr. on September 23, 2008. (NP) (Entered: 09/23/2008)
175 USCA ORDER denying motion for a stay. (jeb, ) (Entered: 12/24/2008)
176 Joint MOTION for Extension of Time to Complete Discovery and to Extend Case Management Deadlines by CHARLES TAYLOR (Branch, David) (Entered: 01/26/2009)
Set Hearings: Status Conference is set for 2/27/2009 @ 2:30 PM in Courtroom 27A before Judge Henry H. Kennedy. (tj ) (Entered: 02/11/2009)
Minute Entry for proceedings held before Judge Henry H. Kennedy: Status Conference held on 2/27/2009. The court addresses the issue of the parties request to extend deadlines. Next status conference is set for 9/25/2009 @ 9:45 AM in Courtroom 27A before Judge Henry H. Kennedy.). (Court Reporter Annie Shaw.) (tj ) (Entered: 02/27/2009)
177 Joint MOTION for Order Approving Class Notice and Exclusion Request Form, and Ratifying and Adopting Stipulation by CHARLES TAYLOR (Attachments: # 1 Exhibit Attachment A (Class Notice), # 2 Exhibit Attachment B (Exclusion Request Form), # 3 Exhibit Attachment C (Stipulation), # 4 Text of Proposed Order)(Branch, David) (Entered: 08/01/2009)
178 Joint MOTION for Extension of Time to Complete Discovery and to Enlarge Case Management Deadlines by CHARLES TAYLOR (Attachments: # 1 Text of Proposed Order)(Branch, David) (Entered: 08/18/2009)
179 ORDER granting 178 Joint Motion for Enlargement of Discovery and Case Management Deadlines. Signed by Judge Henry H. Kennedy, Jr., on August 19, 2009. (lchhk2.) (Entered: 08/19/2009)
180 ORDER granting 177 Joint Motion for Approval of Class Notice and Exclusion Form, and for Ratification and Adoption of Stipulation. Signed by Judge Henry H. Kennedy, Jr., on August 25, 2009. (Attachments: # 1 Stipulation) (lchhk2.) (Entered: 08/25/2009)
MINUTE ORDER finding as moot 176 Motion for Extension of Time to Complete Discovery (Kennedy, Henry) (Entered: 09/08/2009)
Reset Hearings: Status Conference currently scheduled for 9/25/09 is hereby RESCHEDULED for 7/9/2010 @ 9:45 AM in Courtroom 27A before Judge Henry H. Kennedy. (tj) (Entered: 09/24/2009)
181 Consent MOTION for Order Adopting the Parties' Stipulated Confidentiality Agreement and Issuing the Same as an Order of the Court by CHARLES TAYLOR (Attachments: # 1 Exhibit Exhibit A (Confidentiality Agreement), # 2 Text of

Case: 1:01-cv-561 As of: 04/13/2018 01:37 PM EDT 19 of 28

11/18/2009 12/01/2009 01/04/2010 01/15/2010 01/15/2010
01/20/2010
01/26/2010 01/26/2010 02/02/2010
02/03/2010 02/19/2010 02/22/2010

Proposed Order)(Branch, David) (Entered: 11/10/2009)
182 ORDER granting 181 Plaintiffs' Consent Motion for an Order Adopting the Parties' Stipulated Confidentiality Agreement and Issuing the Same as an Order of the Court. Signed by Judge Henry H. Kennedy, Jr. on November 18, 2009. (NP) (Entered: 11/18/2009)
183 Joint MOTION for Extension of Time to Complete Discovery by CHARLES TAYLOR (Attachments: # 1 Text of Proposed Order)(Branch, David) (Entered: 12/02/2009)
184 ORDER granting 183 Joint Motion for Further Enlargement of Discovery and Case Management Deadlines. Signed by Judge Henry H. Kennedy, Jr. on January 4, 2010. (NP) (Entered: 01/04/2010)
185 NOTICE of Designation of Expert by CHARLES TAYLOR (Attachments: # 1 Exhibit CV for Dr. Louis Lanier)(Branch, David) (Entered: 01/15/2010)
186 Consent MOTION for Extension of Time to Complete Discovery and to Permit Parties to Meet and Confer Regarding Discovery Disputes by CHARLES TAYLOR (Attachments: # 1 Exhibit Exhibit A: Plaintiffs' First Request for Production of Documents, # 2 Exhibit Exhibit B: Plaintiffs' First Merits Interrogatories, # 3 Exhibit Exhibit C: January 13, 2010 Letter from A. Hillery to W. Doyle, Jr., # 4 Exhibit Exhibit D: January 15, 2010 Letter from W. Doyle, Jr. to A. Hillery, # 5 Exhibit Exhibit E: E−mail chain between W. Doyle, Jr. and A. Hillery)(Branch, David) (Entered: 01/15/2010)
187 Memorandum in opposition to re 186 Consent MOTION for Extension of Time to Complete Discovery and to Permit Parties to Meet and Confer Regarding Discovery Disputes filed by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Doyle, William) (Entered: 01/20/2010)
188 ORDER REFERRING MOTION: 186 Plaintiff's Consent Motion for a 21−Day Extension of Discovery Deadlines and all other motions related to discovery are referred to United States Magistrate Judge Alan Kay for his determination. Signed by Judge Henry H. Kennedy, Jr. on January 26, 2010. (NP) (Entered: 01/26/2010)
189 CASE REFERRED to Magistrate Judge Alan Kay for 186 Consent MOTION for Extension of Time to Complete Discovery and to Permit Parties to Meet and Confer Regarding Discovery Disputes by CHARLES TAYLOR; as well as other discovery or discovery related disputes. (kb) (Entered: 01/27/2010)
MINUTE ORDER granting in part and denying in part 186 Plaintiffs' [Partial] Consent Motion for A 21−Day Extension of Discovery Deadlines. Plaintiffs' Motion is granted to the extent that the January 15, 2010 deadline for non−expert discovery is extended up to and including February 5, 2010 for the limited purposes of: 1) allowing the parties to meet and confer regarding any discovery noticed or requested prior to January 15, 2010; and 2) permitting the Plaintiffs an opportunity to respond to Defendant's outstanding requests for production of documents. Non−expert discovery may not otherwise be continued during the extension period. Signed by Magistrate Judge Alan Kay on 02/02/10, nunc pro tunc 01/15/10. (DM) (Entered: 02/02/2010)
Set/Reset Deadlines : Non−Expert Discovery extended to 2/5/10 for limited purposes specified in the 2/2/10 Minute Order by Magistrate Judge Kay. (kk) (Entered: 02/03/2010)
190 Consent MOTION for Discovery to Depose Eight Newly−Identified Witnesses by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY (Attachments: # 1 Exhibit 1)(Doyle, William) (Entered: 02/19/2010)
MINUTE ORDER granting 190 Consent Motion for Discovery to Depose Eight Newly Discovered Witnesses. The Court reopens fact discovery for the limited purpose of Defendant being permitted to depose eight witnesses identified on February 5, 2010, which may involve the issuance of subpoenas. Signed by Magistrate Judge Alan Kay on 02/22/10. (DM) (Entered: 02/22/2010)

Case: 1:01-cv-561 As of: 04/13/2018 01:37 PM EDT 20 of 28

03/09/2010 03/15/2010
03/15/2010 03/15/2010 03/16/2010 03/16/2010 03/17/2010 03/17/2010
03/19/2010 03/19/2010 03/24/2010 03/24/2010 03/26/2010
04/22/2010

191 MOTION for Order Staying Discovery Deadlines Through March 15, 2010 to Permit Plaintiffs to File a Motion to Compel by CHARLES TAYLOR (Attachments: # 1 Text of Proposed Order)(Branch, David) (Entered: 03/10/2010)
192 MEMORANDUM ORDER granting in part and denying in part 191 Motion to Stay Discovery Deadlines. Plaintiffs shall file their motion to compel by 03/15/10 and Defendant's opposition is due by 03/24/10. Signed by Magistrate Judge Alan Kay on 03/15/10. Plaintiffs' expert report deadline [and contingent deadlines]will be determined upon consideration of the motion to compel. (DM) (Entered: 03/15/2010)
Set/Reset Deadlines : Plaintiff's Motion to Compel due by 3/15/10; Defendant's Response in Opposition to Plaintiff's Motion to Compel due by 3/24/10. (kk) (Entered: 03/15/2010)
193 MOTION for Extension of Time to File Motion to Compel by CHARLES TAYLOR (Branch, David) (Entered: 03/15/2010)
MINUTE ORDER granting 193 Plaintiffs' Motion for [a one−day] Extension of Time to file their motion to compel. Motion to compel is due by 03/16/10 rather than 03/15/10. Signed by Magistrate Judge Alan Kay on 03/16/10, nunc pro tunc 03/15/10. (DM) (Entered: 03/16/2010)
Set/Reset Deadlines : Plaintiff's Motion to Compel due by 3/16/10. (kk) (Entered: 03/16/2010)
194 Unopposed MOTION for Leave to File Their Motion to Compel Nunc Pro Tunc to March 16, 2010 by CHARLES TAYLOR (Attachments: # 1 Text of Proposed Order)(Branch, David) Modified event title and docket text on 3/18/2010 (znmw, ). (Entered: 03/17/2010)
195 MOTION to Compel by CHARLES TAYLOR (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F, # 7 Exhibit Exhibit G, # 8 Exhibit Exhibit H, # 9 Exhibit Exhibit I, # 10 Exhibit Exhibit J, # 11 Exhibit Exhibit K, # 12 Exhibit Exhibit K −− Attachment 1, # 13 Exhibit Exhibit K −− Attachment 2A, # 14 Exhibit Exhibit K −− Attachment 2B, # 15 Exhibit Exhibit L, # 16 Exhibit Exhibit M, # 17 List of Exhibits)(Branch, David) (Entered: 03/18/2010)
MINUTE ORDER granting 194 Motion for Leave of Court to File Motion to Compel. Signed by Magistrate Judge Alan Kay on 03/19/10, nunc pro tunc march 16, 2010. (DM) (Entered: 03/19/2010)
NOTICE OF ERROR re 195 Motion to Compel; emailed to dablaw@erols.com, cc'd 3 associated attorneys −− The PDF file you docketed contained errors: 1. Mr. Hillery must register for ECF and start using his own login and password. (znmw, ) (Entered: 03/19/2010)
196 MOTION for Extension of Time to File Response/Reply as to 195 MOTION to Compel by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY (Doyle, William) (Entered: 03/24/2010)
MINUTE ORDER granting 196 Defendant's Motion for Extension of Time to File Opposition to Plaintiff's Motion to Compel. Opposition due by 3/26/2010. Signed by Magistrate Judge Alan Kay on 03/24/10. (DM) (Entered: 03/24/2010)
197 Memorandum in opposition to re 195 MOTION to Compel filed by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Attachments: # 1 Declaration Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F, # 7 Exhibit Exhibit G, # 8 Exhibit Exhibit H, # 9 Exhibit Exhibit I, # 10 Exhibit Exhibit J, # 11 Exhibit Exhibit K, # 12 Exhibit Exhibit L, # 13 Exhibit Exhibit M, # 14 Exhibit Exhibit N, # 15 Exhibit Exhibit O, # 16 Exhibit Exhibit P, # 17 Exhibit Exhibit Q, # 18 Exhibit Exhibit R, # 19 Exhibit Exhibit S, # 20 Exhibit Exhibit T, # 21 Exhibit Exhibit U, # 22 Exhibit Exhibit V, # 23 Exhibit Exhibit W)(Doyle, William) (Entered: 03/26/2010)
198 MEMORANDUM ORDER denying 195 Plaintiffs' Motion to Compel. Signed by Magistrate Judge Alan Kay on 04/22/10. (DM) (Entered: 04/22/2010)

Case: 1:01-cv-561 As of: 04/13/2018 01:37 PM EDT 21 of 28

04/22/2010 04/23/2010 04/27/2010
04/28/2010 05/03/2010 05/04/2010 05/06/2010 05/12/2010 06/02/2010 07/09/2010 07/09/2010
08/04/2010 08/12/2010 08/19/2010 08/22/2010

MINUTE ORDER − In light of this Court's ruling on Plaintiffs' Motion to Compel, Plaintiffs shall produce their expert report to the Defendants by May 3, 2010. The remaining dates assigned in the Scheduling Order 184 will be amended in a separate order. Signed by Magistrate Judge Alan Kay on 04/22/10. (DM) (Entered: 04/22/2010)
Set/Reset Deadlines : Plaintiff's Expert Report to be produced by 5/3/10. (kk) (Entered: 04/23/2010)
199 AMENDED SCHEDULING ORDER. Deadline for Deposition of Plaintiffs' Expert and Designation of Defendant's Expert is June 3, 2010. Production of Defendant's Rebuttal Expert Report is July 6, 2010. Deposition of Defendant's Expert by August 6, 2010. For all other dates, see Order. Signed by Magistrate Judge Alan Kay on 04/27/10. (DM) (Entered: 04/27/2010)
Set/Reset Deadlines : Defendant's Rebuttal Expert Report to be produced by 7/6/10; Plaintiff's Reply, if any, to Defendant's Rebuttal Expert Report due by 9/7/10. (kk) (Entered: 04/28/2010)
200 MOTION for Extension of Time to Serve Their Expert Report on the Defendant by CHARLES TAYLOR (Attachments: # 1 Text of Proposed Order Proposed Order, # 2 Exhibit Exhibit A)(Branch, David) (Entered: 05/03/2010)
201 MEMORANDUM ORDER granting 200 Plaintiffs' Motion for Extension of Time to Serve their Expert Report. The expert report should be provided to Defendant by no later than June 2, 2010, and no further extensions of time will be granted to Plaintiffs. Signed by Magistrate Judge Alan Kay on 05/04/10. (DM) (Entered: 05/04/2010)
Set/Reset Deadlines : Plaintiff's Expert Report to be provided to Defendant by 6/2/10. (kk) (Entered: 05/06/2010)
202 SCHEDULING ORDER: Plaintiffs' Expert Report due by 6/2/2010. Defendant's Expert Report due by August 2, 2010. Deposition of Plaintiffs' Expert by 7/2/2010. Deposition of Defendant's Expert by 9/4/2010. See Order for other dates. Signed by Magistrate Judge Alan Kay on 05/12/10. (DM) (Entered: 05/12/2010)
203 RULE 26b4 STATEMENT. (Branch, David) (Entered: 06/02/2010)
204 NOTICE of Appearance by Diana M. Uribe on behalf of DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY (Uribe, Diana) (Entered: 07/09/2010)
Minute Entry for proceedings held before Judge Henry H. Kennedy: Status Conference held on 7/9/2010. Parties to file a joint report regarding whether Alternative Dispute Resolution could be successful in this case after discovery is completed and before dispositive motions are filed. Status Conference set for 3/11/2011 at 9:45 AM in Courtroom 27A before Judge Henry H. Kennedy. (Court Reporter Annie Shaw) (cp) (Entered: 07/09/2010)
205 MOTION to Compel Compliance with Court Order by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11)(Uribe, Diana) (Entered: 08/04/2010)
206 MOTION to Compel Production of Communications Responsive to Defendant's Discovery Requests by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Uribe, Diana) (Entered: 08/12/2010)
207 MOTION for Extension of Time to File Opposition to Defendant's "Motion to Compel Compliance With Court Order", MOTION for Leave to File this Motion nunc pro tunc to August 18, 2010, by CHARLES TAYLOR (Attachments: # 1 Text of Proposed Order Proposed Order)(Branch, David) (Entered: 08/19/2010)
208 Memorandum in opposition to re 207 MOTION for Extension of Time to File Opposition to Defendant's "Motion to Compel Compliance With Court Order" MOTION for Leave to File this Motion nunc pro tunc to August 18, 2010, filed by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Uribe, Diana) (Entered: 08/22/2010)

Case: 1:01-cv-561 As of: 04/13/2018 01:37 PM EDT 22 of 28

08/23/2010 08/23/2010 08/25/2010 08/26/2010 08/27/2010 08/27/2010
08/30/2010 09/13/2010
09/17/2010 09/20/2010 09/21/2010 09/21/2010 09/22/2010
09/22/2010 09/27/2010

MINUTE ORDER granting 207 Plaintiffs' Motion for Extension of Time to File Opposition through August 24, 2010; granting 207 Motion for Leave to File Motion 207 Nunc Pro Tunc to August 18, 2010. Signed by Magistrate Judge Alan Kay on 08/23/10, nunc pro tunc 08/18/10. (DM) (Entered: 08/23/2010)
NOTICE OF ERROR re 208 Memorandum in Opposition; emailed to duribe@morganlewis.com, cc'd 4 associated attorneys −− The PDF file you docketed contained errors: 1. Invalid attorney signature, 2. ECF login/filer should match one of the signing attorneys on the document being filed. (znmw, ) (Entered: 08/23/2010)
209 Memorandum in opposition to re 205 MOTION to Compel Compliance with Court Order filed by CHARLES TAYLOR. (Branch, David) (Entered: 08/25/2010)
210 Consent MOTION for Extension of Time to File Response/Reply as to 206 MOTION to Compel Production of Communications Responsive to Defendant's Discovery Requests by CHARLES TAYLOR (Attachments: # 1 Text of Proposed Order)(Branch, David) (Entered: 08/27/2010)
211 MEMORANDUM ORDER granting 205 Defendant's Motion to Compel Compliance with Court Order. Signed by Magistrate Judge Alan Kay on 08/27/10. (DM) (Entered: 08/27/2010)
MINUTE ORDER granting 210 Plaintiffs' [Consent] Motion for Extension of Time to File Response re: 206 MOTION to Compel Production of Communications Responsive to Defendant's Discovery Requests. Plaintiffs' Opposition to 206 due by 8/30/2010. Signed by Magistrate Judge Alan Kay on 08/27/10, nunc pro tunc 08/26/10. (DM) (Entered: 08/27/2010)
212 Memorandum in opposition to re 206 MOTION to Compel Production of Communications Responsive to Defendant's Discovery Requests filed by CHARLES TAYLOR. (Branch, David) (Entered: 08/30/2010)
MINUTE ORDER directing the Plaintiffs, through counsel, to provide the undersigned with a copy of the "communications at issue" (referenced in Opposition 212 at 4) in the Defendant's Motion to Compel 206 so that the Court may conduct an in camera review. Communciations shall be provided to chambers within five business days. Signed by Magistrate Judge Alan Kay on 09/13/10. (DM) (Entered: 09/13/2010)
213 Unopposed MOTION for Extension of Time to File Dispositive Motions by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY (Doyle, William) (Entered: 09/17/2010)
214 THIRD AMENDED SCHEDULING ORDER granting 213 Unopposed Motion for 14−Day Extension of Time to File Dispositive Motions (Note that these dispositive motion deadlines follow from discovery deadlines.) Signed by Magistrate Judge Alan Kay on 09/20/10. (DM) (Entered: 09/20/2010)
Set/Reset Deadlines : Plaintiffs' Reply to Defendant's Rebuttal Expert Report due by 10/1/10. (kk) (Entered: 09/21/2010)
215 MOTION for Extension of Time to File "Communications at Issue" with Magistrate Judge For In Camera Inspection, MOTION for Leave to File This Motion Nunc Pro Tunc to September 20, 2010 by CHARLES TAYLOR (Attachments: # 1 Text of Proposed Order Proposed Order)(Branch, David) (Entered: 09/21/2010)
MINUTE ORDER granting 215 Motion for Extension of Time to File in camera documents; granting 215 Motion for Leave to Late File in camera documents. (This Court notes that the documents have been provided to chambers on 09/21/10.) Signed by Magistrate Judge Alan Kay on 09/21/10, nunc pro tunc 09/20/10. (DM) (Entered: 09/22/2010)
216 MEMORANDUM ORDER denying without prejudice 206 Defendant's Motion to Compel, based on in camera review. Signed by Magistrate Judge Alan Kay on 09/22/10. (DM) (Entered: 09/22/2010)
217 MOTION for Extension of Time to Comply With the Court's August 27, 2010 Order by CHARLES TAYLOR (Branch, David) (Entered: 09/28/2010)

Case: 1:01-cv-561 As of: 04/13/2018 01:37 PM EDT 23 of 28

10/01/2010 10/04/2010 10/05/2010
10/05/2010 10/05/2010 10/07/2010 10/07/2010
10/14/2010 10/15/2010 10/22/2010 10/22/2010 10/28/2010 10/29/2010 11/02/2010
11/19/2010

218 Consent MOTION for Extension of Time to Serve Plaintiffs' Reply to the Defendant's Rebuttal Expert Report and for an Extension of the Remaining Deadlines Set Forth in the Court's Second Amended Scheduling Order by CHARLES TAYLOR (Attachments: # 1 Text of Proposed Order)(Branch, David) (Entered: 10/01/2010)
219 Amended MOTION for Extension of Time to Serve Plaintiffs' Reply to the Defendant's Rebuttal Expert Report and for an Extension of the Remaining Deadlines Set Forth in the Court's Second Amended Scheduling Order by CHARLES TAYLOR (Attachments: # 1 Text of Proposed Order)(Branch, David) (Entered: 10/04/2010)
MINUTE ORDER granting 219 Plaintiffs' Amended [Consent] Motion for Extension of Time to Serve Reply to Defendant's Rebuttal Expert Report and Extension of Remaining Deadlines. Signed by Magistrate Judge Alan Kay on 10/05/10, nunc pro October 1, 2010. A separate [Fourth] Amended Scheduling Order will follow. (DM) (Entered: 10/05/2010)
MINUTE ORDER finding as moot 217 Plaintiffs' Motion for Extension of Time to Serve Reply to Rebuttal Expert Report; finding as moot 218 Plaintiffs' Motion for Extension of Time to Serve Reply, in light of the Court's ruling on 219 . Signed by Magistrate Judge Alan Kay on 10/05/10. (DM) (Entered: 10/05/2010)
220 FOURTH AMENDED SCHEDULING ORDER. Signed by Magistrate Judge Alan Kay on 10/05/10. (DM) (Entered: 10/05/2010)
221 Consent MOTION for More Definite Statement for Clarification of the Court's October 5, 2010 Order Regarding Docket No. 217 by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY (Doyle, William) (Entered: 10/07/2010)
MINUTE ORDER granting 221 Motion for More Definite Statement and amending the October 5, 2010 Minute Order with regard to Plaintiffs' Motion for Extension of Time to Comply with the Court's August 27, 2010 Order 217 . Plaintiffs' request for a 14−day extension of time in which to produce 8 individuals for depositions is granted, nunc pro tunc 09/27/10, in light of Defendant's consent to a 7−day extension and the recently amended Scheduling Order, which extends the remaining discovery deadlines. Signed by Magistrate Judge Alan Kay on 10/07/10. (DM, ) (Entered: 10/07/2010)
Set/Reset Deadlines : Plaintiffs' Reply to Defendant's Rebuttal Expert Report, if any, due by 10/15/10. (kk) (Entered: 10/14/2010)
222 Second MOTION for Extension of Time to File Plaintiffs' Reply to the Defendant's Rebuttal Expert Report by CHARLES TAYLOR (Attachments: # 1 Text of Proposed Order)(Branch, David) (Entered: 10/15/2010)
MINUTE ORDER granting 222 Plaintiffs' [unopposed] Second Motion for Extension of Time to Serve Reply to Defendant's Rebuttal Expert Report. Plaintiffs shall serve their Reply on the Defendant by October 22, 2010. Signed by Magistrate Judge Alan Kay on 10/22/10, nunc pro tunc 10/15/10. (DM) (Entered: 10/22/2010)
Set/Reset Deadlines : Plaintiff to serve Defendant with its Reply to Defendant's Rebuttal Expert Report by 10/22/10. (kk) (Entered: 10/22/2010)
223 Consent MOTION to Amend/Correct 220 Order Fourth Amended Scheduling Order by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY (Doyle, William) (Entered: 10/28/2010)
224 FIFTH AMENDED SCHEDULING ORDER granting 223 Motion to Amend/Correct and setting new deadlines. Signed by Magistrate Judge Alan Kay on 10/29/10. (DM) (Entered: 10/29/2010)
Set/Reset Deadlines : Defendant to depose Plaintiffs' expert regarding the Reply Expert Report by 11/19/10; Defendant's Dispositive Motions due by 12/20/10; Plaintiffs' Response in Opposition to Defendant's Dispositive Motions due by 1/21/11; Defendant's Reply in Support of Dispositive Motions due by 2/4/11. (kk) (Entered: 11/02/2010)
225 Joint MOTION for Order to Refer Case to the Court's Neutral Case Evaluation Process and Extend Case Management Deadlines to Permit the Parties to Engage in the Neutral Evaluation Process by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY (Doyle, William) (Entered: 11/19/2010)

Case: 1:01-cv-561 As of: 04/13/2018 01:37 PM EDT 24 of 28

11/30/2010 11/30/2010 11/30/2010
12/06/2010
03/07/2011 03/07/2011 03/09/2011
03/09/2011
06/06/2011 06/06/2011 10/04/2011 04/03/2012 04/04/2012 04/13/2012 04/18/2012 06/01/2012 07/02/2012

226 ORDER REFERRING CASE to Early Neutral Evaluation. ENE is to begin after completion of depositions in this case and is to be concluded within 60 days thereafter. Signed by Magistrate Judge Alan Kay on 11/30/10. (DM) (Entered: 11/30/2010)
227 SIXTH AMENDED SCHEDULING ORDER granting 225 Joint Motion to Extend Case Management Deadlines. Case referred to ENE by means of a separate order. Signed by Magistrate Judge Alan Kay on 11/30/10. (DM) (Entered: 11/30/2010)
MINUTE ORDER amending the docket entry associated with 226 . This case is referred for ENE for a period of 90 days [commencing after completion of depositions], as stated in the Order 226 . Signed by Magistrate Judge Alan Kay on 11/30/10. (DM) (Entered: 11/30/2010)
Set/Reset Deadlines: Defendant's Dispositive Motions due by 3/21/11; Plaintiffs' Response in Opposition to Defendant's Dispositive Motions due by 4/21/11; Defendant's Reply in Support of its Dispositive Motions due by 5/5/11. (kk) (Entered: 12/06/2010)
228 Joint MOTION for Extension of Time to Complete Discovery and Extend Case Management Deadlines by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY (Uribe, Diana) (Entered: 03/07/2011)
229 Joint MOTION to Continue Status Conference by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY (Uribe, Diana) Modified event title on 3/8/2011 (znmw, ). (Entered: 03/07/2011)
MINUTE ORDER granting 228 Joint Motion to Extend Case Management Deadlines to Permit the Parties to Engage in the Neutral Evaluation Process. Accordingly, defendant's dispositive motion is due on June 20, 2011; plaintiff's opposition is due on July 20, 2011, and defendant's reply is due on August 3, 2011. Signed by Judge Henry H. Kennedy, Jr. on March 9, 2011. (NP) (Entered: 03/09/2011)
MINUTE ORDER granting 229 Joint Motion to Reschedule the March 11, 2011,Status Conference. Accordingly, the status conference scheduled to be held on March 11, 2011, is hereby continued until October 14, 2011, at 9:45 am in Courtroom 27A before Judge Henry H. Kennedy, Jr. Signed by Judge Henry H. Kennedy, Jr. on March 9, 2011. (NP) (Entered: 03/09/2011)
230 Joint MOTION to Stay Case Management Deadlines to Permit the Parties to Continue the Neutral Evaluation Process by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY (Uribe, Diana) (Entered: 06/06/2011)
MINUTE ORDER granting 230 Joint Motion to Stay Case Management Deadlines to Permit the Parties to Continue the Neutral Evaluation Process. Signed by Judge Henry H. Kennedy, Jr. on June 6, 2011. (NP) (Entered: 06/06/2011)
NOTICE: Status conference currently scheduled for 10/14/2011 is hereby canceled due to the stay in this action as of 6/6/2011. (tj ) (Entered: 10/04/2011)
231 Case reassigned to Judge Barbara Jacobs Rothstein. Judge Henry H. Kennedy has retired and is no longer assigned to the case. (ds) (Entered: 04/03/2012)
232 ORDER FOR JOINT STATUS REPORT. Signed by Judge Barbara Jacobs Rothstein on 4/4/2012. (lcbjr1) (Entered: 04/04/2012)
233 Mail Returned as undeliverable sent to Alexander G. Hillary, II; Type of Document Returned: Order filed on 4/4/12; Resent at new address: 1901 Pennsylvania Avenue, NW, Suite 802, Washington, DC 20006. (tth) (Entered: 04/13/2012)
234 STATUS REPORT (JOINT) by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Uribe, Diana) (Entered: 04/18/2012)
235 STATUS REPORT (Joint Supplemental) by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Uribe, Diana) (Entered: 06/01/2012)
236 STATUS REPORT (Joint Supplemental) by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Uribe, Diana) (Entered: 07/02/2012)

Case: 1:01-cv-561 As of: 04/13/2018 01:37 PM EDT 25 of 28

07/26/2012 08/10/2012 08/13/2012 08/13/2012 08/24/2012 08/24/2012
08/24/2012 09/05/2012 09/06/2012 09/10/2012
09/11/2012 09/11/2012
09/25/2012
09/25/2012
09/25/2012 02/08/2013 02/12/2013

237 STATUS REPORT (Joint Supplemental) by CHARLES TAYLOR. (Branch, David) (Entered: 07/26/2012)
238 STATUS REPORT (Joint Supplemental) by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY, CHARLES TAYLOR. (Doyle, William) (Entered: 08/10/2012)
MINUTE ORDER directing parties to submit the settlement agreement described in the parties' August 10, 2012 joint status report no later than August 24, 2012. Signed by Judge Barbara Jacobs Rothstein on August 13, 2012.(lchhk2) (Entered: 08/13/2012)
Set/Reset Deadlines/Hearings: Settlement Agreement due by 8/24/2012. (cdw) (Entered: 08/14/2012)
239 NOTICE of Change of Address by Alexander G. Hillery, II (Hillery, Alexander) (Entered: 08/24/2012)
240 NOTICE Settlement Agreement by CHARLES TAYLOR (Attachments: # 1 Exhibit A −− Notice of Class Action Settlement, # 2 Exhibit B −− Claim Form, # 3 Exhibit C −− Named Plaintiff Release, # 4 Exhibit D −− Claimant Release Form, # 5 Exhibit E −− Proposed Administrative Order No. 1)(Hillery, Alexander) (Entered: 08/24/2012)
241 STATUS REPORT by CHARLES TAYLOR. (Hillery, Alexander) (Entered: 08/24/2012)
242 SUPPLEMENTAL STATUS REPORT re 241 STATUS REPORT, by CHARLES TAYLOR. (Hillery, Alexander) Modified on 9/6/2012 to edit text and create relationship (dr) (Entered: 09/05/2012)
243 NOTICE OF WITHDRAWAL OF APPEARANCE as to DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. Attorney Karen Ellen Gray terminated. (Gray, Karen) (Entered: 09/06/2012)
MINUTE ORDER directing parties to file a memorandum in support their motion for approval of the proposed settlement no later than September 11, 2012. Signed by Judge Barbara Jacobs Rothstein on September 10, 2012. (lchhk2) (Entered: 09/10/2012)
Set/Reset Deadlines: Parties' memorandum in support of motion for approval of proposed settlement due by 9/11/2012. (zmm, ) (Entered: 09/11/2012)
244 Consent MOTION for Order Preliminarily Approving the Proposed Settlement Agreement and for Other Relief by CHARLES TAYLOR (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Hillery, Alexander) (Entered: 09/11/2012)
245 ORDER granting 244 Motion for Preliminary Approval of the Settlement Agreement. A Fairness Hearing is scheduled for February 27, 2013 at 10:30 AM. The parties shall file a motion for final approval of the proposed Settlement Agreement by March 29, 2013. See Order for additional deadlines. Signed by Judge Barbara Jacobs Rothstein on 9/25/2012. (lcbjr1) (Entered: 09/25/2012)
246 ADMINISTRATIVE ORDER NO. 1 re 245 Order on Motion for Preliminary Approval of the Settlement Agreement. Signed by Judge Barbara Jacobs Rothstein on 9/25/2012. (lcbjr1) (Main Document 246 replaced on 9/25/2012) to remove double header (tth). (Entered: 09/25/2012)
Set/Reset Deadlines/Hearings: Motion due by 3/29/2013. Fairness Hearing set for 2/27/2013, at 10:30 AM in Courtroom 12 before Judge Barbara Jacobs Rothstein. (tth) (Entered: 09/25/2012)
247 NOTICE OF WITHDRAWAL OF APPEARANCE as to DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. Attorney Diana M. Uribe terminated. (Uribe, Diana) (Entered: 02/08/2013)
248 NOTICE of Appearance by Jocelyn R. Cuttino on behalf of DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY (Cuttino, Jocelyn) (Entered: 02/12/2013)

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02/15/2013 02/15/2013
02/19/2013 03/15/2013 03/15/2013 03/15/2013 03/18/2013 03/18/2013 03/23/2013 03/23/2013
03/25/2013
03/28/2013
03/28/2013 03/16/2015

249 Joint MOTION to Modify Deadlines by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY (Cuttino, Jocelyn) (Entered: 02/15/2013)
MINUTE ORDER granting 249 Joint Motion to Revise Deadlines. The motion for final approval and Class Counsel's motion for attorneys' fees will be due on March 15, 2013. The Fairness Hearing scheduled for February 27, 2013 is hereby re−set for March 28, 2013 at 2:00 P.M. SO ORDERED. Signed by Judge Barbara Jacobs Rothstein on 2/15/2013. (lcbjr1) (Entered: 02/15/2013)
Set/Reset Deadlines/Hearings: Motions due by 3/15/2013. Fairness Hearing re−set for 3/28/2013, at 02:00 PM in Courtroom 12 before Judge Barbara Jacobs Rothstein. (tth) (Entered: 02/19/2013)
250 Unopposed MOTION for Extension of Time to File Motion to Approve Settlement Agreement by CHARLES TAYLOR (Hillery, Alexander) (Entered: 03/15/2013)
MINUTE ORDER granting 250 Motion for Extension of Time to File Motion for Final Approval of Settlement Agreement. The Motion is due March 18, 2013. SO ORDERED. Signed by Judge Barbara Jacobs Rothstein on 3/15/2013. (lcbjr1) (Entered: 03/15/2013)
251 Unopposed MOTION for Extension of Time to File Motion for Attorneys' Fees by CHARLES TAYLOR (Branch, David) (Entered: 03/15/2013)
MINUTE ORDER granting 251 Motion for Extension of Time to File Motion for Attorneys' Fees. The Motion is due March 18, 2013. SO ORDERED. Signed by Judge Barbara Jacobs Rothstein on 3/18/2013. (lcbjr1) (Entered: 03/18/2013)
252 Unopposed MOTION for Attorney Fees and Reimbursement of Litigation Expenses (by Class Counsel) by CHARLES TAYLOR (Attachments: # 1 Exhibit A (Declaration of David A. Branch), # 2 Exhibit B (Expert Invoices), # 3 Exhibit C (Expert Invoices), # 4 Exhibit D (Deposition Invoices))(Branch, David) (Entered: 03/18/2013)
253 Consent MOTION for Leave to File Plaintiffs Consent Motion for Final Approval of the Settlement Agreement, and for Other Relief, Out−of−Time or Nunc Pro Tunc to March 18, 2013 by CHARLES TAYLOR (Attachments: # 1 Text of Proposed Order)(Hillery, Alexander) (Entered: 03/23/2013)
254 Consent MOTION for Settlement Agreement Final Approval, and for Other Relief by CHARLES TAYLOR (Attachments: # 1 Memorandum in Support, # 2 Declaration Patton Declaration, # 3 Exhibit Ex. A to Patton Declaration, # 4 Exhibit Exhibit B to Patton Declaration, # 5 Exhibit Exhibit C to Patton Declaration, # 6 Declaration Hillery Affirmation, # 7 Text of Proposed Order)(Hillery, Alexander) (Entered: 03/23/2013)
MINUTE ORDER granting 253 Plaintiffs' Consent Motion for Leave of Court to File 254 Plaintiffs' Consent Motion for Final Approval of the Settlement Agreement Nunc Pro Tunc. The Plaintiffs' motion is hereby deemed filed, nunc pro tunc, to March 18, 2013. SO ORDERED. Signed by Judge Barbara Jacobs Rothstein on 3/25/2013. (lcbjr1) (Entered: 03/25/2013)
Minute Entry for proceedings held before Judge Barbara Jacobs Rothstein: Fairness Hearing held on 3/28/2013 re 254 Consent MOTION for Settlement Agreement Final Approval, and for Other Relief filed by CHARLES TAYLOR; heard and granted. 252 Unopposed MOTION for Attorney Fees and Reimbursement of Litigation Expenses (by Class Counsel) filed by CHARLES TAYLOR; heard and granted. (Court Reporter: Patricia Kaneshiro−Miller) (tth) (Entered: 03/28/2013)
255 ORDER GRANTING FINAL APPROVAL OF THE CLASS SETTLEMENT re 252 Motion for Attorney Fees; and 254 Motion for Settlement. Signed by Judge Barbara Jacobs Rothstein on 3/28/2013. (tth) (Entered: 03/28/2013)
256 ORDER: The Court has received the attached communication and finds the contents deeply concerning. The parties are to provide this Court with an update no later than March 20, 2015. Authorized by Judge Barbara Rothstein. (GC). Modified on 3/17/2015 (tth). (Entered: 03/16/2015)

Case: 1:01-cv-561 As of: 04/13/2018 01:37 PM EDT 27 of 28

03/18/2015 03/18/2015 03/20/2015 03/20/2015
03/20/2015 03/26/2015
03/26/2015 03/26/2015
04/13/2015 04/13/2015 04/15/2015 06/02/2015

257 STATUS REPORT UPDATE REGARDING SETTLEMENT by DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY. (Speights, Grace) (Entered: 03/18/2015)
258 STATUS REPORT of Class Counsel David A. Branch by CHARLES TAYLOR. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Branch, David) (Entered: 03/18/2015)
259 STATUS REPORT of Class Counsel Alexander Hillery by CHARLES TAYLOR. (Attachments: # 1 Exhibit 9/2/14 message to L. Kovach, # 2 Exhibit 9/2/14 message to T. Warren, # 3 Exhibit 9/15/14 message to Dr. Lanier, # 4 Exhibit 10/31/14 message to Dr. Lanier and L. Kovach, # 5 Exhibit 11/16/14 message to T. Warren (and reply))(Hillery, Alexander) (Entered: 03/20/2015)
260 Unopposed MOTION for Order Approving the Procedures Employed by the Administrator to Determine Claimant Eligibility and to Calculate the Individual Awards to Eligible Claimants, and Granting the Administrator Permission to Distribute the Awards to Eligible Claimants Pursuant to the Terms of the Settlement Agreement by CHARLES TAYLOR (Attachments: # 1 Exhibit Exhibit 1 − Kovach Declaration, # 2 Exhibit Exhibit 2 − Dr. Lanier Declaration, # 3 Exhibit Exhibit 3 − email chain)(Hillery, Alexander) (Entered: 03/20/2015)
261 NOTICE of Proposed Order by CHARLES TAYLOR (Hillery, Alexander) (Entered: 03/20/2015)
VACATED PURSUANT TO MINUTE ORDER FILED ON 3/26/2015.....MINUTE ORDER: The Court, having received a proposed schedule for distribution of settlement funds that is lacking in a firm distribution date and counsel having failed to provide the date upon request, orders class counsel and the Administrator to appear before the Court at 3PM on March 30, 2015. Signed by Judge Barbara Rothstein. (GC) Modified on 3/27/2015 (tth). (Entered: 03/26/2015)
262 STATUS REPORT Supplemental, of Class Counsel Alexander Hillery by CHARLES TAYLOR. (Attachments: # 1 Exhibit 3−23−15 email to Mark Patton, # 2 Exhibit draft Notice of Award, # 3 Exhibit final Notice of Award, # 4 Exhibit 3−25−15 email to Mark Patton, # 5 Exhibit 3−26−15 letter from Administrator, # 6 Text of Proposed Order Revised Proposed Order)(Hillery, Alexander) (Entered: 03/26/2015)
MINUTE ORDER granting 260 Unopposed Motion for Order Approving the Procedures Employed by the Administrator to Determine Claimant Eligibility and to Calculate the Individual Awards to Eligible Claimants, and Granting the Administrator Permission to Distribute the Awards to Eliglbe Claimants Pursuant to the Terms of the Settlement Agreement. The Court grants this motion with the understanding that within 15 days of the today, the Administrator will have sent out the Notices of Award and Releases. See Supp'l Status Report (March 26, 2015). In light of these developments, the Court hereby VACATES the status hearing scheduled for March 30, 2015. SO ORDERED.. Signed by Judge Barbara Jacobs Rothstein on 3/26/15. (lcbjr2, ) (Entered: 03/26/2015)
MINUTE ORDER: Class counsel shall, no later than April 20, 2015, submit an affidavit from the Administrator stating that the settlement payment notices have been sent to the class. The submission shall also include a copy of the notice that was sent to the class members. Authorized by Judge Barbara Rothstein. (GC) (Entered: 04/13/2015)
Set/Reset Deadline: Affidavit due by 4/20/2015. (tth) (Entered: 04/13/2015)
263 STATUS REPORT by CHARLES TAYLOR. (Attachments: # 1 Affidavit Patton Affidavit, # 2 Exhibit form Notice of Award)(Hillery, Alexander) (Entered: 04/15/2015)
264 MINUTE ORDER: Attached is a copy of five letters from class members in this case. The common allegation is that class counsel failed to provide these members with appropriate documents related to their claims. As a result, they failed to fill out and submit certain forms. Class counsel never informed them of this error. Instead, these individuals first learned about the error when they called class counsel to inquire about the Notice of Claim (which they had not received). Instead of assisting these individuals, class counsel re−directed them to this Court for assistance of some kind, thus demonstrating a remarkable unwillingness to assist class members without a

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06/03/2015 06/04/2015 10/03/2017 10/04/2017

formal order from this Court directing him to fulfill his obligations. Accordingly, IT IS HEREBY ORDERED that counsel shall furnish these five individuals with the proper documents and provide the Court with certified confirmation of having done so within 24 hours of this Order. Upon receiving each members response, class counsel shall process the documents and immediately inform the Court as to the actions taken. (lcbjr4, ) (Entered: 06/02/2015)
265 RESPONSE TO ORDER OF THE COURT re 264 Order,,,, filed by RONALD MARSHALL, CHARLES TAYLOR. (Attachments: # 1 Exhibit A)(Branch, David) (Entered: 06/03/2015)
266 RESPONSE TO ORDER OF THE COURT re 264 Order,,,, Supplemental Response filed by CHARLES TAYLOR. (Branch, David) (Entered: 06/04/2015)
267 Joint MOTION to Distribute Remaining Settlement Funds Cy Pres to the District of Columbia Legal Aid Society by CHARLES TAYLOR (Branch, David) (Entered: 10/03/2017)
MINUTE ORDER granting 267 Joint Motion to Distribute Remaining Settlement Funds Cy Pres to the District of Columbia Legal Aid Society directing that the balance in the Settlement Fund, $14,025.38, be distributed to the District of Columbia Legal Aid Society, SO ORDERED, signed by Judge Barbara Jacobs Rothstein on 10/03/17. (ldc) (Entered: 10/04/2017)

 
 In re: DC Water and Sewer Authority, Petitioner
No. 08-7099
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

April 3, 2009, Filed

COUNSEL: For In re: DC Water and Sewer Authority, In re - Petitioner: William Eugene Doyle, Jr., Grace E. Speights, Morgan, Lewis & Bockius LLP, Washington, DC; Allyson Newton Ho, Morgan, Lewis & Bockius LLP, Houston, TX; David A. Branch, Law Office of David A. Branch, Washington, DC.
JUDGES: BEFORE: Henderson and Tatel, Circuit Judges, and Randolph, Senior Circuit Judge.
OPINION

ORDER
Upon consideration of the petition for permission to appeal pursuant to Fed. R. Civ. P. 23(f), it is
ORDERED that the petition be denied as untimely for the reasons stated in the opinion issued this date.
Because no appeal has been allowed, no mandate will issue.
Per Curiam

 
 561 F.3d 494 (2009)
In re DC WATER AND SEWER AUTHORITY, Petitioner.
No. 08-7099.
United States Court of Appeals, District of Columbia Circuit.
Argued February 12, 2009. Decided April 3, 2009.
Allyson N. Ho argued the cause for the petitioner. Grace E. Speights and William E. Doyle, Jr., were on brief.
Alexander Hillery, II, argued the cause pro hac vice for the respondents.
Before: HENDERSON and TATEL, Circuit Judges, and RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge:
Petitioner DC Water and Sewer Authority (WASA) filed a petition pursuant to 495*495Federal Rule of Civil Procedure 23(f) for permission to appeal the district court's order certifying a class of WASA employees in an employment discrimination class action. Because WASA filed the petition more than sixteen months after the deadline fixed by Federal Rule of Civil Procedure 23(f), we deny the petition as untimely.
I.
Charles Taylor filed this action on March 16, 2001, alleging WASA discriminated against the plaintiff class in hiring and promotion and seeking a declaration that WASA violated the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., along with monetary relief. On March 13, 2007, the district court issued an order pursuant to Rule 23(b)(2) certifying for injunctive and declaratory relief "the putative class of Black employees at WASA who sought and were denied positions, career ladder promotions, or other advancement, or whose advancement was delayed, or whose compensation was otherwise affected by WASA's alleged unlawful discrimination, from October 1996 through December 2000."[1] Taylor v. D.C. Water & Sewer Auth.,241 F.R.D. 33, 48 (D.D.C.2007). On March 27, 2007, WASA moved for reconsideration of the certification order, which motion the court denied on September 13, 2007.

On April 9, 2008, WASA filed a "Motion to Clarify the Relevant Class Members for Notice Purposes," asking that "the Court grant an order holding that putative class members who were not employed by DC WASA as of March 16, 2001, the date on which Plaintiff Charles Taylor filed his original complaint, lack standing to seek injunctive and declaratory relief and therefore should be excluded from the Rule 23(b)(2) class." Defendant's Motion to Clarify, Taylor v. D.C. Water & Sewer Auth., C.A. No. 01-0561 (April 9, 2008). The district court summarily denied the motion on July 24, 2008.
On August 7, 2008, WASA filed the instant petition for permission to appeal the certification pursuant to Rule 23(f).
II.
Rule 23(f) provides:
Appeals. A court of appeals may permit an appeal from an order granting or denying classaction certification under this rule if a petition for permission to appeal is filed with the circuit clerk within 10 days after the order is entered. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.
Fed.R.Civ.P. 23(f) (emphasis added). The 10-day deadline to file a petition for permission to appeal is "strict and mandatory." Gutierrez v. Johnson & Johnson, 523 F.3d 187, 192 (3d Cir.2008); see also Carpenter v. Boeing Co., 456 F.3d 1183, 1190 (10th Cir.2006) ("timeliness requirement is mandatory"); Coco v. Inc. Village of Belle Terre, N.Y., 448 F.3d 490, 491-92 (2d Cir. 2006) (per curiam) (requirement is "inflexible"); Gary v. Sheahan, 188 F.3d 891, 893 (7th Cir.1999) (10-day limit is "essential"). Other circuits have drawn a "narrow exception to the rigid ten-day time limit," providing that "a timely-filed motion to reconsider the grant or denial of class certification tolls the ten-day time limit within which to file a petition for permission to appeal under Rule 23(f)"—or, more precisely, "postpones" or "resets" the ten-day496*496 period, which "begins anew when the district court rules on the motion to reconsider," Gutierrez, 523 F.3d at 192 & 193 n. 4 (citing Carpenter, 456 F.3d at 1191-92; McNamara v. Felderhof, 410 F.3d 277, 281 (5th Cir.2005); Shin v. Cobb County Bd. of Educ., 248 F.3d 1061, 1064-65 (11th Cir. 2001) (per curiam); Gary v. Sheahan, 188 F.3d at 892).
In this case, the Rule 23(f) petition was filed on August 7, 2008, almost 17 months after the March 13, 2007 certification order. Even were we to adopt a rule tolling the time for filing a Rule 23(f) petition pending disposition of a timely filed motion to reconsider, the deadline would have been extended only to September 2007 when the district court denied WASA's

reconsideration motion, almost one year before WASA filed its petition with this court. By any measure, then, the petition was far out of time. Notwithstanding the tardiness of its petition, WASA now argues that the Rule 23(f) filing window reopened on July 24, 2008 when the district court denied WASA's belated motion to clarify the certification order. Thus, WASA asserts, its August 7, 2008 petition for permission to appeal was timely because it was filed within ten days of the clarification denial. WASA's argument runs counter to the plain language of Rule 23(f).
The July 24, 2008 order denying WASA's motion to clarify did not restart the Rule 23(f) clock because it was not "an order granting or denying class-action certification" as the plain language of the Rule requires to open the window for an interlocutory appeal—the only such order the district court issued is the March 13, 2007 certification order, which survived the clarification order undisturbed and remains in effect.[2] See Gutierrez, 523 F.3d at 193 ("[T]he ten-day period for filing either a Rule 23(f) petition or a motion to reconsider runs from the order granting or denying class certification. A later order that does not change the status quo will not revive the ten-day time limit.") (internal citation omitted); Jenkins v. BellSouth Corp., 491 F.3d 1288, 1291-92 (11th Cir. 2007) ("[W]hat counts ordinarily is the original order denying or granting class certification, not a later order that maintains the status quo.");Carpenter, 456 F.3d at 1191-92 ("An order that leaves class-action status unchanged from what was determined by a prior order is not an order `granting or denying class action certification.'"); McNamara, 410 F.3d at 281 ("As the district court ... merely reaffirmed its prior ruling, the court's order was not `an order ... granting or denying class action certification' under Rule 23(f)." (second alteration in McNamara)).[3] To hold otherwise would leave Rule 23(f)'s 497*497 deadline toothless, for any party could then cause the clock to restart at any time simply by filing a pleading styled as a "motion to clarify."[4] Cf. Gary v. Sheahan, 188 F.3d at 893 ("[A] motion to reconsider filed more than ten days after the order is too late to preserve the possibility of appeal under Rule 23(f), and we do not think that it matters what caption the litigant places on the motion to reconsider. This case demonstrates why that limit is essential. Otherwise, by styling a motion to reconsider as a motion to decertify the class, a litigant could defeat the function of the ten-day line drawn in Rule 23(f).").
Courts generally disfavor interlocutory appeals because they disrupt ongoing trial court proceedings and squander resources. See In re Lorazepam & Clorazepate Antitrust Litig., 289 F.3d 98, 105 (D.C.Cir.2002) ("[I]nterlocutory appeals are generally disfavored as `disruptive, timeconsuming, and expensive' for both the parties and the courts, and the more so in a complex class action where the district court may reconsider and modify the class as the case progresses." (quoting Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 294 (1st Cir.2000))); Fed. R.Civ.P. 23(f) advisory committee notes (1998 amendments)

("The 10-day period for seeking permission to appeal is designed to reduce the risk that attempted appeals will disrupt continuing proceedings."); Jenkins, 491 F.3d at 1290 ("The Committee Notes ... explain that the ten-day deadline provides a single window of opportunity to seek interlocutory review, and that window closes quickly to promote judicial economy."). In its dogged pursuit of an interlocutory appeal—based on the most tenuous (if not untenable) grounds— WASA has both disrupted the class action proceeding in the district court and wasted the resources of the parties and the court. We find it troubling that WASA and its lawyers would file—and attempt to justify—such a blatantly untimely petition. See Fed. R.App. P. 38; SEC v. Loving Spirit Found., Inc.,392 F.3d 486 (D.C.Cir. 2004) (appeal from blatantly untimely motion so frivolous as to justify sanctions under Fed. R.App. P. 38).
For the foregoing reasons, the petition is denied.
So ordered.
[1] Rule 23(b)(2) authorizes class certification 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."
[2] Contrary to WASA's contention, the July 24, 2008 order's summary denial of the motion to clarify did not resolve any ambiguity in the certification order. The text of the order reads in its entirety:
Before the court is Defendant's Motion to Clarify the Relevant Class Members for Notice Purposes [#161]. Upon consideration of the motion, the opposition thereto, and the record of this case, it is this 24th day of July 2008, hereby
ORDERED that Defendant's Motion to Clarify the Relevant Class Members for Notice Purposes [#161] is DENIED.
Order, Taylor v. D.C. Water & Sewer Auth, C.A. No. 01-0561 (July 24, 2008).
[3] WASA's reliance on the Ninth Circuit's unpublished opinion in Bonlender v. Am. Honda Motor Co.,286 Fed.Appx. 414 (9th Cir.2008), is misplaced. In Bonlender, the court found timely a Rule 23(f) petition which was filed within ten days after an order clarifying a class certification order and "resolv[ing] a genuine ambiguity in the original order." 286 Fed.Appx. at 414. The district court's denial of clarification in this case had no such effect. See supra note 2.
[4] Equally unfounded is WASA's curious assertion that this court has independent appellate jurisdiction, apart from Rule 23(f), to determine whether the plaintiff class members have standing so as to confer jurisdiction on the district court. See Pet'r Br. at 14-17.