Case 1:04-cv-02205-HHK -AK Document 9 Filed 08/01/05 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Christine Mills, et al., Plaintiffs,
v.

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* Case No.: 04-2205 (HHK)

James Billington,

*

Librarian of Congress

*

Defendant

*

*

o0o *

*

Plaintiffs’ Memorandum of Law in Support of

Response in Opposition to Defendant’s Motion To Dismiss

Plaintiffs, by way of their undersigned counsel, hereby respond in opposition to

the Motion To Dismiss under Fed. R. Civ. Proc. 12b(1) and (6), filed by Defendant,

James Billington, Library of Congress (hereafter Defendant’s Motion) on June 6, 2005.

Defendants’ Motion argues for dismissal of Plaintiffs’ case because Plaintiffs allegedly

failed to exhaust their administrative remedies prior to filing their Complaint in this court.

This court should dismiss Defendant’s Motion for the following reasons:

I. Plaintiffs properly followed the Library of Congress’ EEO exhaustion process.

II. The Agency’s decision to terminate Plaintiffs’ case at the administrative stage was improper and Plaintiffs should not be barred from proceeding with their case in this court.

Argument

I. Plaintiffs properly followed the Library of Congress’ EEO exhaustion process

On or about May 28, 2004, Plaintiff Christine Mills, representing the class of

employees who are members relevant to this complaint, initiated the Library of

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Congress’ EEO administrative agency procedure. She alleged sixteen counts of unlawful age and race discrimination in violation of Title VII, as well as reprisal. May 28, 2004 Complaint, attached as Plaintiffs’ Exh. 1. The Complaint raised issues of systemic discrimination and retaliation by Defendant in violation of applicable federal law. Plaintiffs specifically alleged that “from at least 2000 to the present, members of the class raised these issues with Library of Congress management from time to time, but no meaningful effort was made to address the discriminatory policies, practices and procedures.” (May 28, 2004 Complaint, Par. 3-6).
A. The applicable standard of review for Defendant’s Motion to Dismiss. Defendant’s Motion argued for dismissal of Plaintiffs’ case under the Federal Rules of Civil Procedure, 12(b)(6)1. This court should construe the facts in Plaintiffs’ complaint as true and all reasonable inferences in the light most favorable to Plaintiff. See Swierkiewicz v. Sorema, 534 U.S. 506, 508 (2002) (cited in) Blackmon-Malloy v. U.S. Capitol Police Bd., 338 F. Supp.2d 97, 101 (D.D.C. 2004). Defendant also produced evidence in the form of an affidavit from Claudia Withers, the EEO counselor assigned to Plaintiffs’ case. Defendant has thus presented this court with disputed facts outside of the pleadings, and this court can treat Defendant’s Motion as one for summary judgment. See Richardson v. Rivers, 335 F.2d 996, 998 (D.D.C. 1964); Batson v. Powell, 912 F. Supp. 565, 570 (D.D.C. 1996), as cited in, Brodetski, 199 F.R.D. at 17. Rule 56 provides that a party against whom a claim is alleged may move for summary judgment at any time. Fed. R. Civ. P. 56(b). A motion for summary
1 Defendant improperly argues that this court can review matters outside of the pleadings on a Motion to Dismiss for Failure to State a Claim under Rule 12(b)(1). Defendant’s Motion, p. 7; C/f Haase v. Sessions, 835 F.2d 902, 904-05 (U.S. App. D.C. 1987) (as cited in) Rann v. Chao, 346 F. 3d 192, 194 (U.S. App. D.C. 2003). Only Motions to Dismiss under Rule 12(b)(6) can be treated in the alternative by the court as a Motion for Summary Judgment. Id.
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judgment may be made before a defendant files an answer, particularly where the only question involved is one of law. When a well-documented motion for summary judgment is made, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). Summary judgment is appropriate when “there is no genuine issue as to any material fact, and … the moving party is entitled to judgment as a matter of law” Fed. R. Civ. P. 56(c). The movant bears the initial burden of proving that there is “no genuine issue”. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Once that burden has been met, the nonmovant must “go beyond the pleadings and … designate ‘specific facts showing that there is a genuine issue for trial’… In considering a summary judgment motion, a court is to believe “[t]he evidence of the nonmovant … , and all justifiable inferences are to be drawn in [their] favor.” (citing) Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, (1986). Additionally, the D.C. Circuit recognizes that “[i]n employment discrimination cases, summary judgment ‘must be viewed with special caution because intentional discrimination…[is] difficult for a Plaintiff to establish.’ “Lutes v. Golden, 62 F. Supp.2d 118, 122 (D.C. Cir 1999) citing Plummer v. Safeway, Inc., 1995 WL 129100 1 (D.C. Cir 1995) (citations omitted). The court in Lutes noted that if the non-moving party supports their allegation or denials through affidavits or other competent evidence that sets forth specific facts to show that a genuine issue for trial exists, summary judgment should not be granted.2 See Lutes, 62 F. Supp. at 122.
2 Defendant attached to its Motion the affidavit testimony of Claudia Withers, dated February 14, 2005, concerning her informal investigation of Plaintiffs’ claims of unlawful discrimination. Plaintiffs in rebuttal attach the affidavits of Christine Mills and Howard Cook, Plaintiffs’ class agent representative, to Plaintiffs’ Response in Opposition to Defendant’s Motion. Ms. Mills and Mr. Cook specifically deny that plaintiffs’
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B. Plaintiffs must exhaust their administrative remedies in order to proceed with their claims in this court.____________________
It is well settled that federal employees must exhaust their administrative
remedies as well as generally cooperate in the administrative exhaustion process prior
to filing their claims in federal court. Plaintiffs’ case could be dismissed if, for example,
Plaintiffs refused to use or complete the established LOC administrative exhaustion
process. McRae v. Librarian of Congress, 843 F.2d 1494-1496-97 (D.D.C. 1988) Smith
v. Koplan, 366 F. Supp. 2d 266, 268 (D.D.C. 2005), ("If a complainant forces an agency
to dismiss or cancel the complaint by failing to provide sufficient information to enable
the agency to investigate the claim, he may not file suit.") (citing) Artis v. Greenspan,
class agent members or Mr. Cook ever refused to cooperate with Ms. Withers, and both deny ever failing to give Withers specific information she needed for processing their informal complaint. Affidavit testimony of Mills, pp. 2-4, and Cook, pp. 2-3. Plaintiffs’ counsel also attaches an affidavit for discovery pursuant to Fed. R. Civ. Proc 56(f). Rule 56(f) provides that the Court may deny or continue a motion for summary judgment “[s]hould it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition . . . .” Fed. R. Civ. P. 56(f). A party opposing summary judgment can file an affidavit “that particularly specifies legitimate needs for further discovery.” Price v. Greenspan, 2005 WL 1492201 at pp. 5-6 (D.D.C. June 22, 2005). A court can grant a motion under Rule 56(f) so long as the party requesting more time for discovery can “indicate what facts she intend[s] to discover that would create a triable issue and why [he] could not produce [those facts or evidence] … in opposition to the motion”. Id., See also, Fisher v. Network Software Associates, 227 F.R.D. 4, 8-9 (D.D.C. 2005) (citing) Strang v. US Arms Control & Disarmament Agency, 864 F.2d 859, 861 (D.D.C. 1989). In other words, prior to deciding Defendant’s Motion, Plaintiffs’ counsel need specific deposition and interrogatory evidence from the EEO counselor Claudia Withers and management representative, Jesse James concerning Withers’ investigation of Plaintiffs’ claims. These facts are essential for Plaintiffs to properly reply to Defendant’s Motion. Plaintiffs currently do not have any documents other than Withers’ final agency report and Defendant’s EEO final decision. Withers’ report however, does not adequately explain the reasons why Plaintiffs’ administrative case should have been cancelled. Further, it is entirely unclear as to what information Plaintiffs’ class agent members allegedly failed to supply to Withers that prompted Defendant to terminate Plaintiffs’ case instead of allowing Plaintiffs a chance to amend their complaint, pursuant to LCR 2010-3.2-6D (If an allegation lacks specificity and detail, the Complaints Examiner shall afford the agent 10 workdays to provide specific and detailed information); and LCR 2010-3.2-6G (The Complaints Examiner may recommend that the Assistant Chief cancel a complaint after it has been accepted because of a failure of the agent to prosecute the complaint. This action may be taken only after the Complaints Examiner has provided the agent a written request, including notice of proposed cancellation, that he/she provide certain information or otherwise proceed with the complaint, and the agent has failed to satisfy this request within 10 workdays of his/her receipt of the request.). Without full development of all of the relevant and material facts in the record, the court can only surmise that Defendant’s termination of Plaintiffs’ case was improper. Dismissal of Defendant’s Motion is warranted at this time.
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332 U.S. App. D.C. 395, 400, 158 F.3d 1301, 1306 (1998), and Wilson v. Pena, 316 U.S. App. D.C. 352, 362-63, 79 F.3d 154, 164-65 (1996). Courts equate cases of failing to cooperate with the agency as cases where a Plaintiff has failed to exhaust [his/her] administrative remedies. Id. At 268, (citing), Carmona v. O’Neill, Civ. Action NO. 010115 (CKK), slip op. at 1 (D.D.C. Jan. 21, 2002). A lenient standard applies in evaluating whether an aggrieved party’s actions met his or her administrative exhaustion responsibilities. Brodetski v. Duffey, 199 F.R.D. 14, 18 (D.D.C. 2001); LCR 2010-3.1 et seq , LCR 2010-3.2 et seq. (citing) Love v. Pullman Co., 404 US 522 (1972); Loe v. Heckler, 768 F.2d 409, 416-17 (D.D.C. 1985); Bethel v. Jefferson, 589 F.2d 631, 641-42 (D.D.C. 1978); Coles v. Penny, 531 F.2d 609, 614-15 (D.D.C. 1976).
C. Defendant used inapplicable federal regulations in support of its Motion to Dismiss.________________________
Defendant’s references to the CFR in its Motion, pp. 10-11, that “a federal employee with a discrimination complaint must, among other things, produce such documentary and testimonial evidence as the [agency] investigator deems necessary”, citing 29 CFR Sec. 1614.108(c)(1), and again in a footnote at p. 12, “an EEO counselor assigned to investigate an administrative complaint of discrimination may make an adverse inference where a complainant fails to respond to requests for information and an agency may base a dismissal upon such failure to respond or cooperate”, citing 29 CFR Sec. 1614.108(c)(3) and 1614.107(a)(7), are entirely inapposite and irrelevant to this case. Library of Congress employees are not subject to the Code of Federal Regulations regarding claims of unlawful discrimination. 29 C.F.R. Sec. 1614.103(d)(3)
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(2004) (This part does not apply to: … Employees of the Library of Congress)3; See (LCR 2010-3.1, 2010-3.2 et seq.). Further, Defendant’s Motion, at p. 9, mischaracterizes Library of Congress Regulations for EEO counselors who may need additional information from Plaintiffs in order to investigate or resolve claims of discrimination. Nowhere in LCR 2010-3.1 does it mandate that Plaintiffs’ class members first had to provide EEO counselor Withers with factually specific information in order to have their claims of unlawful discrimination against management investigated or resolved at the informal stage of the process. LCR 2010-3.1-8A (Investigation of Complaints); LCR 2010-3.2-5 (Filing and Presentation of a Class Complaint). Plaintiffs’ class agent members were entirely correct when they informed Withers on July 15, 2004, that they did not have to provide her with specific claims of unlawful discrimination for an informal resolution of their complaint. Id. They were only required to raise charges of sufficient specificity to enable Withers to investigate their claims properly and effectively. LCR 2010-3.1-8A. “The complaint shall set forth specifically in detail: (1). A description of the Library personnel management policy of practice giving rise to the complaint; and (2). A description of the resultant personnel action or matter adversely affecting the [Plaintiffs’ class member] agent[s].” LCR 2010-3.2-5B (emphasis supplied). Defendant’s argument to this court, Defendant’s Motion, pp. 4, 8-12, that Plaintiffs needed to be factually specific when they requested administrative processing of their discrimination claims is entirely misguided. Defendant’s Motion must be dismissed.
3 Defendant’s Motion appears to border on being frivolous given Defendant’s heavy reliance on the CFR for support of the arguments Defendant made in its Motion, pp. 8-12. Defendant’s Motion must fail.
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D. Library of Congress employees have an internal EEO procedure they must follow in order to exhaust their administrative remedies.
Library of Congress employees can request that an EEO counselor “make whatever inquiry into the matter he/she considers necessary, with the aim of assisting the complainant and management in defining and understanding the problem or charge. [The counselor] also shall seek to resolve the problem on an informal basis to the satisfaction of all parties.” LCR 2010-3.1-4C (pre-complaint procedures)4. Further, “the complaint shall have sufficient specificity to enable the [investigating] officer to review the charges properly and effectively.” LCR 2010-3.1-8A. (emphasis supplied). The officer may require such additional specificity as is necessary to proceed with his/her inquiry. (emphasis supplied); LCR 2010-3.1-8A (Investigation of Complaints).5 With respect to class action complaints, “The [c]ounselor shall:
Advise the aggrieved person of the discrimination complaint procedures, of his/her right to representation throughout the pre-complaint and complaint processes, and of the right to anonymity only during the pre-complaint process; (2) Make whatever inquiry is believed necessary; (3) Attempt to resolve the discrimination complaint informally through discussion with appropriate officials(s); (4) Counsel the aggrieved person concerning the issue(s) involved; (5) Inform the Assistant chief, EEOCO (hereinafter “Assistant Chief”), and other appropriate officials when corrective action is believed necessary; (6) Keep a record of all counseling activities; and (7) Summarize actions and advice in writing both to the Assistant Chief and the aggrieved person concerning the issue(s) in the personnel management policy or practice.” LCR 2010-3.2-4B. As will be revealed supra, Plaintiffs properly followed Defendant’s administrative exhaustion process while Defendant ignored its own regulations when processing Plaintiffs’ complaint.
4 Library of Congress Regulations (LCR) 2010-3.1 and 2010-3.2 are attached to this Response as Plaintiffs’ Exhibit 2.
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E. Plaintiffs did not fail to cooperate with the EEO counselor in the investigation of their complaint.
Defendant’s factually unsupported arguments to this court are that Plaintiffs failed to exhaust their administrative remedies because Plaintiffs “unjustifiably failed or refused to participate in the administrative processing of their claim”. Defendant’s Motion at 8. Defendant is incorrect. Defendant suggest that Plaintiffs cannot show how their claims of unlawful discrimination were “factually specific” enough to have allowed Defendant the opportunity to properly conduct an informal administrative processing of their claims. Defendant’s Motion, pp. 8-12. (9/20/2004, EEO Final Agency Decision, attached as Pltfs Exh 3). Defendant’s arguments on this point are completely unsupported by applicable federal law, their own regulations, and more importantly, are unsupported by the factual record. This court should note that Defendant’s final agency decision identified several of Plaintiffs’ allegations that Defendant rejected and dismissed outright as either without merit or now moot under Cook v. Billington, (No. Civ. 82-0400, 1992 WL 276936 (D.D.C. Aug. 14, 1992), which was Defendant’s prior, class action settlement. (9/20/2004, EEO Final Agency Decision, pp. 6-7)5. Defendant’s EEO decision also proves that Defendant dismissed much of Plaintiffs’ case on the merits, and belies Defendant’s argument to the court in its Motion, pp. 8-12, that Plaintiffs refused to cooperate in the administrative processing of their claims.
In other words, the independent contract EEO counselor assigned to Plaintiffs’ EEO case could not have issued her final agency report, nor could Defendant have
5 For example, Defendant stated “We believe that your claims of continuing violations are without merit. “You, Mr. Cook, and the other Class Agents, were obviously proceeding on the theory that a claim of continuing discrimination [was] evidenced by a failure to promote you (allegations 6, 7, 9, and 10) or provide training (allegations 1, 5, 6, 7, and 13) for promotions.” (9/20/2004, EEO final agency decision, p. 6). (Plaintiffs’ Exh 3). (emphasis supplied).
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decided several of Plaintiffs’ claims on the merits had Plaintiffs “unjustifiably failed or refused to participate in the administrative processing of their claim.” Defendant’s Motion at 8. To the contrary, it was the assigned EEO counselor and Defendant who chose to ignore Library of Congress Regulations for properly investigating and resolving Plaintiffs’ claims of unlawful discrimination. LCR 2010-3.1 et seq.; LCR 2010-3.2 et seq. Plaintiffs rigorously disputed Withers’ assertions about their level of cooperation in the process, and contend that management was not acting in good faith regarding the investigation of their complaint. Affidavits of Mills, para.9, 11, p. 3, and Cook, para. 5, p. 2.
Withers ultimately learned that management was well aware that Plaintiffs’ class members had alleged claims of unlawful discrimination, and that such claims were ongoing from many of Plaintiffs’ class members since 2003, exactly as alleged by Plaintiffs in their complaint. Withers used that information to prepare her EEO Final Agency Report, and was able to provide a fairly detailed review and analysis of several alleged unlawful and discriminatory acts, policies, practices, customs, usages, patterns, and procedures that Plaintiffs raised in their complaint. Her analysis was entirely based upon what she learned from Plaintiffs’ class agent members on July 15, 2004 and the management representative James on August 10, 2004. (9/7/04, EEO Final Agency Report, attached as Plaintiffs’ Exh. 4). In other words, Plaintiffs provided Withers with a sufficient specificity of evidence to informally resolve their claims of unlawful discrimination. However, Defendant chose to ignore the informal stage of the process. This court should decide that Plaintiffs properly followed the administrative process in this case. This court should deny Defendant’s Motion.
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F. The EEO counselor failed to properly follow Library of Congress regulations for discrimination complaints.
The EEO counselor assigned to Plaintiffs’ case was Ms. Claudia Withers, a 20 year veteran in litigation and settlement of employment discrimination matters. Defendant’s Motion, p.3. Affidavit of Claudia Withers (hereafter Withers’ Affidavit, attached as Plaintiffs’ Exh. 5). EEO counselors are available for Library of Congress employees who have reason to believe that they have been discriminated against. LCR 2010-3.1-4A. The counselor is required to inquire into the allegations, assist complainants and management, and seek resolution of such matters on as informal and confidential a basis as possible. Counselors shall prepare all necessary records and they shall report promptly, in writing, to the Assistant Chief as required by the Regulation. LCR 2010-3.1-3E.
On July 15, 2004, Withers met with three of Plaintiffs’ class members, Christine Mills, Priscilla Ijeomah, and Amy Barnes, (hereafter Plaintiffs’ class agent members), as well as Howard Cook, their selected employee representative. This meeting was for counseling6 on their informal complaint. Withers’ Affidavit, p. 2. (Pltfs’ Exh 5). This meeting lasted only about one hour. Affidavits of Mills, p. 1, and Cook, p. 1. Withers took little if any further action to attempt resolving Plaintiffs’ claims of unlawful discrimination after hearing from these class agent members that management already knew about Plaintiffs’ allegations of unlawful discrimination since 2003, that is was ongoing, and that she should review Plaintiffs’ May 28, 2004 informal complaint, Affidavits of Mills, pp. 2-3, and Cook, p. 2. According to Plaintiffs, Withers was informed about specific examples of discriminatory conduct pertaining to herself and to
6 It is unclear from the record whether Ms. Withers also served in the capacity as Complaints Examiner since Plaintiffs filed a class action case. LCR 2010-3.2-6A.
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claims from other employees that were still unresolved by Defendant. Affidavit of Mills, pp. 2-3 and Cook, p. 2. Further, Withers did not attempt to bring any management representatives to the July 15, 2004 meeting for any informal resolution, as Plaintiffs’ class agent members had requested. (Affidavits of Mills, p. 2, and Cook, p. 2), Withers’ Affidavit, p. 3. (Pltfs’ Exh 5).
Withers did not attempt any meaningful dialogue with Plaintiffs’ class agent members and management officials, such as James Billington, Librarian, as Plaintiffs’ class agent members insisted. (Affidavits of Mills, p. 2, and Cook, p. 2). Withers’ Affidavit, para 7, p2. (Pltfs’ Exh 5). Withers knew that Plaintiffs’ class agent members expressed some doubt about using the informal complaint process for their case, and were concerned about Withers’ abilities to investigate their complaints of discrimination. (Affidavit of Mills, p. 2, and Cook, p. 2). Withers’ Affidavit, para. 4, p. 2. (Pltfs’ Exh 5). However, Withers never tried to resolve any of these matters on an informal basis to the satisfaction of all parties, and she never attempted to alleviate Plaintiffs’ concerns about how she was going to investigate or resolve their class action complaint, as required by Library of Congress Regulations. LCR 2010-3.1-4C, LCR 2010-3.2-4B; Affidavits of Mills, pp. 2-4, and Cook, pp. 2-3.
Withers also waited until August 10, 2004, before she had a meeting with management representative, Jesse James, and once again, did that without Plaintiffs’ representative Mr. Cook, or any of Plaintiffs’ class agent members also being present at the meeting. Withers’ Affidavit, para. 12, p. 3. (Pltfs’ Exh 5). Withers then stated that James provided her with a “somewhat more detailed response to the issues raised by the Complaints/class agents in the informal complaint.” Id. This only confirmed what
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Plaintiffs’ class agent members said to Withers previously, i.e., management officials were well aware of Plaintiffs’ claims of alleged discrimination raised by Plaintiffs as a class. However, Withers still chose not to speak to James Billington, Librarian or Donald Scott, Assistant Librarian, or anyone else other than the management representative, Jesse James.7 This was despite recognizing the fact that Billington and Scott were the two officials named in Plaintiffs’ informal complaint as “having responsibility for [Plaintiffs’] claims” of unlawful discrimination. (emphasis supplied); Withers’ Affidavit, para 10, p. 3, (Pltfs’ Exh 5); Affidavits of Mills, para. 4, p. 2, and Cook, para. 3, p. 2. On this point, Withers casually stated in her Affidavit that she was unable to learn “any more details or information about the class agents’ concerns other then what was raised in their informal complaint dated May 28, 2004.” Withers’ Affidavit, para. 11, p.4. (Pltfs’ Exh 5). Yet Withers also states that she was able to meet with Jesse James on August 10, 2004, without Plaintiffs’ representative or any of Plaintiffs’ class agent members also being present, and confirm or deny specific information about Plaintiffs’ claims of unlawful discrimination. That information eventually made it into Withers’ EEO final agency report, dated September 7, 2004. (9/7/04 final agency report), (Pltfs’ Exh. 4).
Withers’ report also discusses, in detail, numerous instances of Plaintiffs’ claims of allegedly discriminatory conduct, based upon what she learned from Plaintiffs’ class agent members and from what Withers learned from the management rep Jesse James. (Compare Plaintiffs’ 5/28/04 complaint with Withers’ 9/7/04 final agency report). In other words, Plaintiffs’ class members were in fact able to “produce such
7 Under LCR 2010-3.2-4B(3), a counselor can attempt to resolve a discrimination complaint informally through discussion with appropriate officials.
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documentary and testimonial evidence as [Withers’] deem[ed] necessary” to attempt resolving Plaintiffs’ complaint. LCR 2010-3.1-4C. Finally, Withers never informed Plaintiffs’ class agent members that their complaint could be dismissed for any failure to cooperate, or because their complaint was lacking in specificity or detail, or that the Plaintiffs’ class requirements were not being met. LCR 2010-3.2-6B (Acceptance, Rejection or Cancellation). Accordingly, Withers did not properly follow Defendant’s regulations when she investigated Plaintiffs’ claims. The Agency’s abrupt decision to cancel Plaintiffs’ complaint for a failure to exhaust administrative remedies was thus improper.
Withers again met with Plaintiffs’ class agent members on August 18, 2004. This meeting was very brief -- lasting about fifteen (15) minutes. Affidavits of Mills, p. 3, and Cook, p. 2. It was unclear what additional information Withers felt was needed that would have assisted her in informally resolving Plaintiffs’ claims. Withers’ assertion that “the class agents refused to engage in a discussion with me about Library Management’s position,” (Withers’ affidavit, para. 14, p. 3), (Pltfs’ Exh 5), is overshadowed by the fact that at that time Plaintiffs had sufficiently specified to Withers documentary and testimonial evidence that was used by Withers to investigate further and determine whether Defendant was engaged in any acts or conduct of unlawful discrimination. Affidavits of Mills, para. 5-8, pp. 2-3, and Cook, para. 4, p. 2. Withers’ Affidavit, para. 14, pp. 3-4, (Pltfs’ Exh 5); (9/7/04, Final Agency Report, Pltfs’ Exh. 4). Her disputed statement that “the class agents refused to cooperate and participate in good faith with the counseling process”, Withers Affidavit, para. 17, p. 4, (Pltfs’ Exh 5), is entirely unsupported by the record. Further, Withers’ self serving statements that she
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did all she could to obtain evidence from three of Plaintiffs’ class representatives is unavailing. According to Ms. Mills and Mr. Cook, Withers was told to contact any of the Plaintiffs’ class members she deemed necessary to informally resolve their complaint. Affidavits of Mills, para. 7, pp. 2-3, and Cook, para. 4, p. 2. There were hundreds of class members available to interview, but Withers apparently did not deem that large number of interested parties evidence of systemic discrimination either.
This court should also note that nowhere in Withers’ Affidavit, filed in support of Defendant’s Motion, does Withers ever state that she could not properly or effectively determine the merits of Plaintiffs’ claims, define and understand the problem or charges raised by Plaintiffs’ class members, or that Plaintiffs’ class members alleged failure to provide Withers with information was not sufficiently specific and thus necessary for her to attempt resolving Plaintiffs’ claims against Defendant. LCR 2010-3.1-4C, 2010-3.18A. Instead, Withers only states “the class agent’s refusal to cooperate and participate in good faith with the counseling process stymied [her] ability to get information”. Withers Affidavit, para. 17, p. 4, (Pltfs’ Exh 5).
Withers never states in her Affidavit that any class members ever prevented or disrupted her ability to obtain any information she deemed necessary to resolve Plaintiffs’ claims, despite their low level of interest in proceeding informally with their complaint. Moreover, Withers had relevant evidence from the management rep, Jesse James that should have made her realize that the informal resolution of Plaintiffs’ claims would not occur. James told Withers on August 10, 2004 that Defendant had no intention of informally resolving Plaintiffs’ claims of unlawful discrimination. Withers’ Affidavit, para. 12, p. 3, (Pltfs’ Exh 5). If Withers had any further problems in resolving
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Plaintiffs’ complaint that required other management attention, she should have referred Plaintiffs’ case to the appropriate official(s) for further processing. This she did not do. LCR 2010-3.1-4C.
II. The Agency’s decision to terminate Plaintiffs’ case at the administrative stage for failure to exhaust their administrative remedies was improper, and Plaintiffs should not be barred from proceeding with their case in this court. A. Defendant’s termination of Plaintiffs’ case was improper pursuant to Defendant’s own regulations.
Plaintiffs properly exercised their rights under the LOC administrative procedure, LCR 2010-3.1 et seq. and LCR 2010-3.2 et seq., but received an improper termination of their case by Defendant. The agency is supposed to accept a class action complaint of unlawful discrimination for processing when it contains a sufficient specificity of facts or evidence of alleged discrimination. LCR 2010-3.1-6; LCR 2010-3.2-5; 2010-3.2-6. Given the extent of the probable class size of well over eight hundred employees, and the significant number of potential claims involved in this case, Withers should have foreseen that informal resolution might not be very effective method of approach. Withers always had the ability to contact the appropriate management official(s) for further assistance. LCR 2010-3.1-4C. However, she was apparently was ill-prepared for investigating Plaintiffs’ claims, and thus, improperly conducted the informal stage of processing for Plaintiffs’ case. Plaintiffs’ class agent members provided Withers with sufficient information to investigate their claims and for attempted resolution of their issues with Defendant on an informal basis.
There is no evidence other than Withers’ disputed testimony that Plaintiffs’ class agent members “failed to cooperate in good faith with her”, as Defendant would have this court believe. Defendant’s Motion, p. 6. To the contrary, there is ample evidence in
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the record that Withers failed to assist Plaintiffs’ class agent members in defining and understanding the problem or charges they filed. This was improper under Defendant’s regulations. LCR 2010-3.1-4C. Defendant’s own admission that it was not interested in pursuing any informal resolution of Plaintiffs’ claims further contradicts Defendant’s arguments in its Motion, pp. 8-12, that Plaintiffs failed to exhaust their administrative remedies at the informal stage of the process. Defendant’s unequivocal position was to wait for the formal stage of process before attempting any negotiated settlement with Plaintiffs. Withers affidavit, para. 12, p. 3, (Pltfs’ Exh 5). Further, Withers never informed or otherwise provided Plaintiffs with any prior written statement that their complaint would be dismissed for a failure to prosecute or due to a lack of cooperation, as required by Library of Congress regulations. LCR 2010-3.2-6G.
Further, Withers did not specify in her final agency report whether Plaintiffs’ case should be terminated for a failure to cooperate. LCR 2010-3.1-4C (“Where a counselor concludes that a matter does not involve discrimination, as defined by Section 2.A. of LCR 2010-2, he/she shall advise the complainant of such conclusion within the time period and pursuant to the procedures set out in Section 4.D.”), LCR 2010-3.2-13A (Report of Findings and Recommendations) (“The Complaints Examiner shall transmit to the Librarian or his/her designee: (1) The record of the hearing; (2) His/her findings and analysis with regard to the complaint; and (3) His/her report of findings and recommended decision on the complaint, including corrective action pertaining to systematic relief for the class and any individual corrective action, where appropriate, with regard to the personnel action or matter which gave rise to the complaint.). Withers did not inform Mr. Cook or any of Plaintiffs’ class agent members at any time about any
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pending termination of their case. LCR 2010-3.2-6G. The Agency’s sudden decision to terminate Plaintiffs’ claims for a failure to exhaust their administrative remedies was thus improper, because unlike Defendant, Plaintiffs properly followed Defendant’s administrative exhaustion process. Defendant’s Motion must be dismissed.
B. In this case, Defendant rendered it’s administrative exhaustion requirements moot, and it would be futile for Plaintiffs to attempt any further administrative exhaustion of their claims.
On August 10, 2004, the management representative James also told Withers that if Plaintiffs’ class agent members could provide any “additional information” to him, then such information should be shared with him only if they had merit. (Withers’ affidavit, para 12, p. 3, (Pltfs’ Exh 5); Defendant’s Motion, p. 5). This statement implies that prior to the conclusion of the informal process, Defendant pre-determined that Plaintiffs’ claims were lacking in merit. After learning management’s position on August 10, 2004, it should have been readily apparent to Withers that further attempts at informal resolution of Plaintiffs’ case would be futile. Her meeting with Mr. Cook and Plaintiffs’ class agent members on August 18, 2004 was unnecessary. When Plaintiffs’ prepared their formal complaint it provided Defendant with many of the same set of facts and evidence that their informal complaint provided. (Plaintiffs’ Formal Complaint, dated August 27, 2004, attached as Plaintiffs’ Exhibit 6). However, Plaintiffs had no legitimate expectation of any proper handling of their case at the formal complaint stage given Defendant’s failure to properly follow its own regulations at the informal stage of proceedings, and ultimately, Plaintiffs’ futility in having any informal resolution of their complaint occur due to Defendant’s conduct. Futility of outcome is a well established reason for waiving administrative exhaustion rules. This court noted in Malcolm v.
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Reno, 129 F. Supp. 2d 1, 8 (D.D.C. 2000) (citing) Athlone Industries v. Consumer
Product Safety Commission, 707 F.2d 1485, 1488 (D.D.C. 1983) that:
“The exhaustion doctrine was designed primarily to prevent premature interruption of the administrative process. In that regard it serves three main purposes. First it preserves the autonomy of the administrative agency by allowing the agency to apply its expertise and exercise its discretion in appropriate circumstances by giving the agency a chance to discover and correct its own errors, and by discouraging frequent and deliberate flouting of the administrative processes [which] could weaken the effectiveness of an agency. Second, application of the exhaustion doctrine aids judicial review which may [otherwise] be hindered by the failure of the litigant to allow the agency to make a factual record, or to exercise its discretion or apply its expertise. Third, requiring exhaustion in appropriate cases promotes judicial and administrative efficiency by prohibiting repeated interruptions of the agency proceeding and by increasing the possibility that no judicial decision will be necessary, since the complaining party’s rights may ultimately be vindicated on the agency level.” Id.
In this case, counseling was futile and therefore unnecessary. Id. Defendant’s
September 20, 2004 EEO decision did not promote or observe any of the underlying
principles enunciated by this court for proper administrative agency relief. Defendant’s
EEO final decision stated that Plaintiffs’ case was terminated due to Plaintiffs’ refusal to
cooperate, and due to Plaintiffs’ alleged failure to specify exact instances and dates of Plaintiffs’ class action discrimination at the informal stage of the process8. Defendant’s
Sept. 20, 2004 EEO decision, at p. 5, (Pltfs’ Exh 3). Defendant’s arguments on this
point are now moot because Defendant conceded the fact that Defendant had no
intention of resolving Plaintiffs’ case at the informal level. Withers’ Affidavit, para. 12, p.
3, (Pltfs’ Exh 5).
8 It is curious as to why Defendant now advocates for exhaustion of a remedy that Defendant acknowledges it had no intention of fulfilling.
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Defendant also stated in its September 20, 2004 EEO decision to Plaintiffs that it believed that several allegations of Plaintiffs’ claims of ongoing and continuing violations were without merit or moot under Cook v. Billington, (No. Civ. 82-0400, 1992 WL 276936 (D.D.C. Aug. 14, 1992). Defendant’s 9/20/2004, EEO decision, pp. 6-7, (Pltfs’ Exh 3). Accordingly it follows that Plaintiffs have exhausted their administrative remedies with respect to allegations {1, 5, 6, 7, 9, 10, and 13} of their complaint when Defendant cancelled in part, and dismissed in part, Plaintiffs’ formal complaint. Defendant’s Sept. 20, 2004 EEO decision at p. 7, (Pltfs’ Exh 3). Finally, Defendant was able to make a partial determination of Plaintiffs’ formal complaint on the merits. It is entirely unclear from the record as to why Defendant did not have sufficiently specified evidence to decide Plaintiffs’ entire case on the merits.
Plaintiffs request that this court deny Defendant’s Motion and allow Plaintiffs’ entire case to proceed to trial in order to avoid any further waste of precious judicial resources. “Although Plaintiffs might be required to exhaust their administrative remedies before seeking judicial relief, the doctrine of administrative exhaustion is not absolute … When the reasons for supporting the doctrine are found inapplicable, the doctrine should not be blindly applied.” Malcolm, 129 F. Supp. 2d at 8. “The exhaustion doctrine should be applied flexibly, with an eye toward its underlying purpose.” Id. In other words, Defendant’s failure to act in good faith at the informal stage of Plaintiffs’ complaint, and failure to follow its own regulations at either the informal or formal stages of Plaintiffs’ complaint should sufficiently indicate to this court that Plaintiffs have exhausted Defendant’s administrative agency exhaustion requirements in this case. Id.
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Conclusion This court should either grant Plaintiffs an opportunity for pre-trial discovery pursuant to Rule 56(f) of the Fed. Rules of Civ. Proc., prior to deciding Defendant’s Motion, or deny Defendant’s Motion outright because Defendant failed to prove that Plaintiffs did not exhaust their administrative remedies in this case. Id., See Armstrong v. Reno, 172 F. Supp. 2d 11, 20-21 (D.D.C. 2001) (Defendant failed to meet its burden of proving that Plaintiff failed to exhaust his administrative remedies). In either case, Defendant’s Motion must be denied.
Respectfully submitted, ________________________ Michael J. Snider, Esq. Ari Taragin, Esq. Jeffery C. Taylor, Esq. Snider & Associates 104 Church Lane, Ste 201 Baltimore, MD 21208 410-653-9060 phone 410-653-9061 fax
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CHRISTINE MILLS, et al., Plaintiffs, v.
JAMES H. BILLINGTON, Defendant.

Civil Action 04-02205 (HHK)

MEMORANDUM OPINION AND ORDER Plaintiffs bring this action on behalf of a putative class of individuals who have been employed by, or sought employment with, the Library of Congress (“LOC”) from approximately January 1, 2003, to December 20, 2004. Plaintiffs assert a variety of claims alleging discrimination on the basis of color, national origin, and/or race pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, as well as 42 U.S.C. § 1981. Defendant James H. Billington, the Librarian of Congress, moves to dismiss plaintiffs’ complaint under Fed. R. Civ. P. 12(b)(1) based on plaintiffs’ asserted failure to exhaust their administrative remedies. Upon consideration of LOC’s motion, the opposition thereto, and the record of this case, the court concludes that LOC’s motion must be denied.
I. BACKGROUND Plaintiffs seek judicial review of a wide range of LOC personnel policies and practices. Specifically, plaintiffs maintain that manifestations of LOC’s discriminatory conduct are visible in: “selections for competitive positions and promotions, transfers, assignments and other career enhancing opportunities; preferred assignments; discipline, awards and bonuses; [and] training.”

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Compl. ¶ 1. In addition, plaintiffs charge that they have been subjected to harassment, a hostile work environment, and retaliation for the assertion of their protected rights. Id.
Plaintiffs first brought their concerns to the attention of LOC on May 28, 2004, when three black LOC employees—Christine Mills, Amy Barnes and Priscilla Ijeomah—assumed the role of “class agents”1 and filed an informal class action complaint with LOC’s Equal Employment Opportunity Complaints Office (“EEOCO”). In response to plaintiffs’ informal complaint, LOC retained a private firm—Delany, Siegal & Zorn—to conduct counseling related to the class agents’ claims. As part of its counseling services, Delany, Siegal, & Zorn acquired the assistance of Claudia Withers, a principal in the firm of Winston, Withers and Associates, Inc., a consulting agency with expertise in the litigation and settlement of employment disputes.
On July 15, 2005, Withers attended a meeting with Mills, Barnes, Ijeomah, and their representative, Howard Cook. According to Withers, one of the primary purposes of the meeting was to elicit as much information as possible about the precise nature of plaintiffs’ discrimination claims, including the positions held by members of the alleged class, and the dates upon which specific acts of discrimination took place. In addition to this initial meeting, Withers arranged a second meeting with the class agents on August 18, 2005, and a separate meeting with LOC’s management representative, Jesse James, on August 10, 2004.
At the conclusion of her investigation, Withers prepared an EEO Counselor’s Report. In her Counselor’s Report, Wither’s stated that “[w]hen asked, the class agents did not or could not identify incidents of alleged discrimination specific to themselves but instead referred the
1 Under Library of Congress regulations, an “agent of the class” is defined as “a class member who acts for the class during the processing of the class complaint.” LCR 2010-3.2 § 3(c).
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counselor to the May 28, 2004, letter of Ms. Mills, Ijeoamah, and Barnes.” Def.’s Mot. to Dismiss, Ex. 5 at 5 (EEO Counselor’s Report). In addition, Withers reported that she “made several attempts to get the class agents to provide precise dates for the acts of discrimination they complained of; however, they, and their representative . . would not identify specific dates . . . .” Id. at 1.
Withers’s EEO Counselor’s Report was presented to LOC’s EEOCO on September 7, 2004. Based on this report, LOC’s EEOCO issued a decision, dated September 20, 2004, that canceled plaintiffs’ complaint. The EEOCO concluded that plaintiffs’ refusal to provide specific information to Withers and unwillingness to actively participate in the counseling sessions constituted a failure to exhaust their administrative remedies.
This action followed.
II. ANALYSIS A. Standard of Review
LOC argues that because plaintiffs failed to exhaust their administrative remedies this court lacks jurisdiction to adjudicate their claims. Accordingly, LOC moves to dismiss plaintiffs’ complaint pursuant to Fed. R. Civ. P. 12(b)(1).2
2 Plaintiffs maintain that LOC’s motion to dismiss must be converted to a motion for summary judgment given its reliance on matters outside the pleadings. Plaintiffs are wrong. LOC has moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), not 12(b)(6). When analyzing a motion under Rule 12(b)(1), the court is permitted to consider documents outside the pleadings to assist in its jurisdictional inquiry and is not required to convert the motion to a motion for summary judgment. See Land v. Dollar, 330 U.S. 731, 735 n. 4 (1947); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987) (“In 12(b)(1) proceedings, it has been long accepted that the judiciary may make ‘appropriate inquiry’ beyond the pleadings to ‘satisfy itself on authority to entertain the case.’”) (citations omitted); Artis v. Greenspan, 223 F. Supp. 2d 149, 152 (D.D.C. 2002) (“A court may consider material outside of the pleadings in ruling on a motion to dismiss for lack of
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LOC is indeed correct that federal employees must exhaust their administrative remedies prior to bringing suit under Title VII. See, e.g., Bayer v. Dep’t of Treasury, 956 F.2d 330, 332 (D.C. Cir. 1992). It is well-settled that a plaintiff’s failure to exhaust her administrative remedies will deprive a district court of subject matter jurisdiction, Artis v. Greenspan, 158 F.3d 1301, 1302 (D.C. Cir. 1998), and that before a federal court may hear a case, it must ascertain whether it has jurisdiction over the underlying subject matter of the action, Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (“Federal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto.”).
A defendant may contest the legitimacy of the court’s jurisdiction either through attacking the complaint “on its face” or by attacking “the factual truthfulness of its averments.” Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (citations omitted). A facial challenge focuses on “the factual allegations of the complaint” as expressed on “the face of the complaint,” while a factual challenge targets those facts underlying the complaint. Loughlin v. United States, 230 F. Supp. 2d 26, 35–36 (D.D.C. 2002) (citations omitted). Under either type of challenge, the plaintiff bears the burden of proving jurisdiction. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182–183 (1936); Land, 330 U.S. at 735. In the instant case, LOC raises a factual challenge as it disputes plaintiffs’ contention that they took all necessary steps to exhaust their administrative remedies, as well as their assertion that they sought to address their grievances
venue, personal jurisdiction, or subject-matter jurisdiction.”) (citation omitted); AlOwhali v. Ashcroft, 279 F. Supp. 2d 13, 20–21 (D.D.C. 2003) (“By considering documents outside the pleadings when reviewing a motion to dismiss pursuant to Rule 12(b)(1), the Court does not convert the motion into one for summary judgment . . . .”).
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with LOC but “no meaningful effort was made to address the discriminatory policies, practices and procedures.” Compl. ¶ 4. B. Plaintiffs’ Failure to Exhaust Their Administrative Remedies
LOC maintains that plaintiffs’ failure to meaningfully participate in the administrative process constitutes an abdication of their duty to exhaust their administrative remedies prior to initiating a civil action.
As mentioned above, the remedial framework erected by Title VII relies heavily on the administrative component of the process. As such, 42 U.S.C. § 2000e-16(a), (c), requires that a plaintiff file their initial charge of discrimination with the employing agency. See Loe v. Heckler, 768 F.2d 409, 417 (D.C. Cir. 1985); President v. Vance, 627 F.2d 353, 360 (D.C. Cir. 1980). The administrative phase of the process is not, however, meant to merely represent a procedural hurdle that the plaintiff must overcome. Rather, “it is part and parcel of the Congressional design to vest in the federal agencies and officials engaged in hiring and promoting personnel ‘primary responsibility’ for maintaining nondiscrimination in employment.” Kizas v. Webster, 707 F.2d 524, 544 (D.C. Cir. 1983) (citations omitted). “Exhaustion is required in order to give federal agencies an opportunity to handle matters internally whenever possible and to ensure that the federal courts are burdened only when reasonably necessary.” Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985). Moreover, the exhaustion requirements permit an employer to investigate claims of discrimination promptly, before evidence becomes stale. See Delaware State Coll. v. Ricks, 449 U.S. 250, 256–57 (1980).
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As part of the administrative process, LOC has developed regulations that require discrimination complainants to undergo counseling before they file a formal complaint. With respect to class claims, Library of Congress Regulation (LCR) 2010-3.2 § 4(A) states:
A staff member or applicant who wishes to be an agent and who believes he/she has been discriminated against shall complete Form 16-5, Allegations of Discrimination . . . , within 60 workdays of the date of the matter giving rise to the allegation of individual discrimination, or 60 workdays of its effective date, if it is a personnel action, and shall consult with an Equal Employment Opportunity Counselor . . . . The regulations state further that: [T]he Counselor shall: (1) Advise the aggrieved person of the discrimination complaint procedures, of his/her right to representation throughout the precomplaint and complaint processes . . . (2) Make whatever inquiry is believed necessary; (3) Attempt to resolve the discrimination complaint informally through discussion with appropriate official(s); (4) Counsel the aggrieved person concerning the issue(s) involved . . . . (LCR) 2010-3.2 § 4(B). In this instance, LOC sought to comply with these regulations through the retention of Withers. As discussed supra, Withers was retained to conduct counseling on the informal class action complaint that was filed by plaintiffs. Withers Decl. ¶ 1. As part of Withers’s assignment, she was instructed by Ricardo Grijalva, head of the LOC’s EEO office, and Gilbert Sandate, head of Workforce Diversity, to focus on eliciting from the plaintiffs specific information regarding the alleged discrimination. Id. ¶ 2. Withers describes her July 15, 2004, initial meeting with the class agents—Mills, Barnes, and Ijeomah—and their representative, Howard Cook, as “not successful.” Id. ¶ 7. According to Withers, the class agents believed that “the informal counseling process was inappropriate for a complaint of this magnitude” and unnecessary. Id. ¶¶ 4, 5. Withers asserts that, though she made repeated attempts to initiate a discussion of the class agents’ informal complaint, her requests for information were consistently rebuffed. Additionally, Withers states that the class
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agents did not believe she was the most appropriate person with whom to discuss their allegations and instead expressed a preference to speak with Dr. Billington, the Librarian of Congress. Withers left this initial meeting unable to obtain any specific dates upon which the alleged discrimination occurred, the names of any officials—other than Dr. Billington and Donald Scott, the Assistant Librarian—that engaged in the allegedly discriminatory practices, or the types of positions held by members of the putative class. Id. ¶¶ 8–11.
Withers met the class agents and Cook for a second time on August 18, 2004. Withers submits that, once again, the class agents and Cook were uncooperative and refused to provide details about the alleged discrimination. According to Withers, she attempted to discuss management’s stance on the discrimination allegations, as well as the requirements for bringing a class action claim set forth in Fed. R. Civ. P. 23, but the class agents remained unreceptive to participating in any discussion. Id. ¶ 14. Withers also states that the class agents resisted her attempts to provide them with notification of their right to file a formal complaint. Id.
The other attendees provide a very different account of the counseling sessions, objecting to Withers’s characterization of these meetings. In their version of events, Withers was performing a perfunctory investigation and preoccupied with having the class agents sign a document entitled “Notice of Rights and Responsibilities for Class Agents.” See Cook Decl. ¶¶ 4–5. Cook directly contradicts Withers’s description of the initial meeting and declares that “Ms. Mills informed Ms. Withers about specific claims of discrimination that were relevant to her and that were ongoing, and I told Ms. Withers about claims relevant to the class agent members’ complaint that were ongoing and unresolved.” Id. ¶ 6. Mills also represents to the court that she, as well as the other class agents, “tried to provide Ms. Withers with precise dates and information
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about discrimination that we had personal knowledge of, for example, I told her about discrimination in the CALM Division and about my prior complaint.” Mills Decl. ¶ 12. While the class agents concede that they were unwilling to sign the document handed to them by Withers, they do not believe they had any obligation to do so.
Were the court to accept LOC’s description of plaintiffs’ participation in the administrative proceedings, the court would be inclined to conclude that plaintiffs have failed to exhaust their administrative remedies. Exhaustion under Title VII demands a “good faith effort by the employee to cooperate with the agency and EEOC and to provide all relevant, available information.” Crawford v. Babbit, 186 F.3d 1322, 1326 (11th Cir. 1999); see also Wilson v. Peña, 79 F.3d 154, 164–65 (D.C. Cir.1996) (“If a complainant forces an agency to dismiss or cancel the complaint by failing to provide sufficient information to enable the agency to investigate the claim, he may not file a judicial suit.”); Briley v. Carlin, 172 F.3d 567, 571 (8th Cir. 1999) (a plaintiff has exhausted their administrative remedies when there has been “good faith participation in the administrative process, which includes making specific charges and providing information necessary to the investigation.”). A plaintiff’s refusal to provide an investigating agency with relevant information related to a claim of discrimination does not constitute a good-faith effort to exhaust one’s administrative remedies. See Smith v. Koplan, 362 F. Supp. 2d 266, 268 (D.D.C. 2005) (plaintiff failed to exhaust her administrative remedies when she “abandoned the administrative process [and] did not comply with the discovery proceedings before the EEOC administrative judge.”); Artis, 158 F.3d at 1306–07 (affirming dismissal where plaintiffs’ decision to withhold “information to which plaintiffs alone had access—specific instances of . . . discriminatory personnel practices that affected the members of the putative
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class,” prevented the EEO from counseling the class claims)3; cf. Thompson v. Jasas Corp., 212
F. Supp. 2d 21, 24 (D.D.C. 2002) (finding a good-faith effort to exhaust administrative remedies
where the plaintiff “participate[d] fully in the EEOC investigation for more than one year” and
“made specific assertions and provided the names of potential witnesses”).
However, here—unlike in the many of the cases in which, because of the plaintiff’s
unwillingness to participate, a complaint is dismissed for failure to exhaust one’s administrative
remedies—there is conflicting evidence that suggests plaintiffs participated, at least to a limited
extent, in the administrative process. In Jordan v. United States, 522 F.2d 1128 (8th Cir. 1975),
for example, the Eighth Circuit affirmed the district court’s decision to grant the defendant’s
motion to dismiss where the “failure [to exhaust] was not the result of oversight, or confusion,
but of deliberate choice.” Id. at 1132. In Jordan, the plaintiff admitted that he abandoned the
administrative proceedings because he suspected the agency “had a conflict of interest” and was
“incompetent to conduct any proceedings for examination of [the merits].” Id. Similarly, in
Jeffers v. Chao, 2004 WL 3257069 (D.D.C. Sept. 21, 2004), the court dismissed the majority of
3 In Artis, the plaintiffs insisted that the adequacy of information they provided to the agency was demonstrated by the agency’s ability to reach the merits of their claim. As evidence of the agency’s ruling on the merits, the plaintiffs cited the agency’s decision to not only deny the plaintiffs’ claims for failure to engage in counseling, but also for failure to meet the threshold typicality and commonality requirements for prosecuting a class action. The Court of Appeals rejected this argument finding that “[a] commonsense reading of the decision reveals that the class complaint was rejected because agency officials had no information on which to base a finding of typicality or commonality.” Id. at 1307 (emphasis in original).
Plaintiffs here make a similar argument, Pls.’ Opp. at 8–9, 19, and as in Artis, the argument is unpersuasive. Any LOC ruling on the merits of plaintiffs’ complaint was based on the lack of information provided to the agency. Even a cursory review of LOC’s September 20, 2004 decision reveals that the primary basis for dismissal was plaintiffs’ perceived rejection of the counseling process.
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the plaintiff’s claims in light of his “obdurate refusal to cooperate in any way” with the administrative review of his complaint. Id. at *6. In granting the defendant’s motion, the court noted that the plaintiff “repeatedly failed to return phone calls from investigators, refused certified letters, and absented himself from interviews.” Id. at *4.
In this case, the record does not demonstrate the same degree of reluctance to assist the efforts of the agency counselor. For one, the class agents accepted both of Withers’s invitations to meet with her. In addition, the plaintiffs dispute that they were unwilling to provide specific details concerning discrimination, but instead insist that Withers was more concerned with relaying information than receiving information. Moreover, the record includes the names of hundreds of putative class members—provided by the class agents, Mills Decl. ¶ 11 —that could have aided in Withers’s investigation.
More importantly, the LOC prematurely cancelled plaintiffs’ complaint when it did not afford the class agents an opportunity to remedy whatever defects may have existed in their complaint, as is required by LOC regulations. LOC’s September 20, 2004, decision makes clear that plaintiffs’ complaint was dismissed for their perceived unwillingness to assist in the administrative counseling. However, the LOC decision does not specify the precise regulatory basis for the dismissal. Arguably, it is either the lack of specificity in the class agents’ complaint or their failure to prosecute their claim. In either instance, LOC regulations require that the class agents be given ten-days notice of the deficiencies in their complaint and an opportunity to address those deficiencies. LOC’s regulations governing the processing of class complaints mandate that:
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If an allegation lacks specificity and detail, the Complaints Examiner shall afford the agent 10 workdays to provide specific and detailed information. The Complaints Examiner may recommend that the Assistant Chief reject the complaint if the agent fails to provide such information within the specified time period. LCR 2010-3.2 § 6(D). Similarly, LCR 2010-3.2 § 6(G) states that: The Complaints Examiner may recommend that the Assistant Chief cancel a complaint after it has been accepted because of failure of the agent to prosecute the complaint. This action may be taken only after the Complaints Examiner has provided the agent a written request, including notice of proposed cancellation, that he/she provide certain information or otherwise proceed with the complaint, and the agent has failed to satisfy this request within 10 workdays of his/her receipt of the request. Indeed, LOC does not contest that the class agents were not given any notice of the impending cancellation of their complaint. Rather, LOC seeks to evade the regulation’s strictures by suggesting that they do not govern plaintiffs’ complaint. LOC argues that, because plaintiffs’ complaint was not assigned a “complaints examiner,” no notice was required. Pls.’ Reply at 11. However, the failure to assign a complaints examiner was itself an unjustified oversight. Under the court’s reading of the LOC regulations, a complaint examiner should have been assigned within 10 workdays of the receipt of plaintiffs’ formal complaint. See LCR 20103.2 § 6(A) (“Within 10 workdays of the Assistant Chief’s receipt of a complaint, the Assistant Chief shall arrange with the Equal Employment Opportunity Commission for the appointment of a Complaints Examiner.”). LOC acknowledges that a formal complaint was filed on August 27, 2004, yet no examiner was appointed prior to LOC’s cancellation of the complaint on September 20, 2004. Far from excusing LOC’s conduct, the absence of a complaint examiner only reinforces the prematurity of LOC’s decision.
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Having concluded that LOC made numerous errors when processing plaintiffs’ complaint, the court must find that plaintiffs constructively exhausted their administrative remedies. Though there is a strong preference that the relevant agency perform the initial assessment of the merits of a plaintiff’s complaint, see Hill v. Runyon, 12 F. Supp. 2d 30, 33 (D.D.C.) (“Generally, a federal court should not hear the merits of a discrimination case against a government agency unless the agency has first ruled upon them.”), there is persuasive authority that suggests Title VII does not provide for a remand from the district court to the agency. See Ward v. Sec. of the Army, 796 F.2d 1369, 1378 (8th Cir. 1986) (“A reading of the regulations makes obvious the requirement that an employee’s complaint be processed promptly. Negated is the possibility that a dispute may receive revolving ladder review within the agency or between the agency and the courts.”). As the court stated in Woodruff v. Mineta, “If . . . an agency wrongfully dismisses a complaint for a purported failure to comply with a provision of the regulations, the court should not remand the case to the agency but should ‘conclude that administrative remedies are exhausted and go on to try all issues in the case on their merits.’” 215 F. Supp. 2d 135, 138 (D.D.C. 2002) (quoting Wade, 796 F.2d at 1378).
III. CONCLUSION For the aforementioned reasons, it is this 16th day of May, 2006, hereby
ORDERED that LOC’s motion to dismiss [Dkt. # 6] is DENIED.
Henry H. Kennedy, Jr. United States District Judge
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 Case 1:04-cv-02205-HHK -AK Document 28 Filed 04/02/07 Page 1 of 11

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Christine Mills, Runako Balondemu, Geradine Duncan, David Hubbard, Priscilla Ijeomah, Clifton Knight, Charles Mwalimu, Lawrence Perry, Sharon Taylor, William Rowland, both individually and on behalf of a class of others similarly situated
Plaintiffs,
v.
JAMES H. BILLINGTON,
Defendant.

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Civil Action 04-02205 (HHK)

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JURY TRIAL DEMANDED

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PLAINTIFFS’ SECOND AMENDED CLASS ACTION COMPLAINT I. INTRODUCTION
Plaintiffs, Christine Mills, Runako Balondemu, Geradine Duncan, David Hubbard, Priscilla Ijeomah, Clifton Knight, Charles Mwalimu, Lawrence Perry, Sharon Taylor, William Rowland (collectively the “Individual” or “Named” Plaintiffs” and/or “Plaintiffs”), individually and on behalf of the class they seek to represent, by and through their undersigned counsel of record, bring this Second Amended Class Action Complaint (the “Complaint”), against James H. Billington, Librarian of the Library of Congress (“Defendant”), and allege as follows:
II. NATURE OF THE ACTION 1. Plaintiffs bring this action as representatives of a class of all minority job applicants and all past, current and future minority employees of the Library of Congress (the proposed “Class”). Plaintiffs bring this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended, seeking class-wide injunctive relief and any further or ancillary legal and

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equitable relief as justice may require. 2. Defendant has engaged in an ongoing pattern and practice of discrimination against
its minority employees. Specifically, as set forth more fully herein: a. Discrimination in Compensation. The pay rates for Caucasian employees
have been consistently higher than the pay rates for minority employees. The Defendant’s discrimination in pay also diminishes the pension benefits available to Class members.
b. Discrimination in Promotions. Minority employees are promoted at a significantly lower rate than Caucasian employees. Defendant’s failure to promote minority employees to higher levels results in a “Glass Ceiling” that prevents minorities from achieving upward advancement to more senior levels at the Library of Congress.
c. Discrimination in Wage Classifications and Job Assignments. Defendant assigns higher wage grades and step increases to Caucasian employees than it does to minority employees. Defendant assigns the less desirable jobs to its minority employees while assigning better job assignments to Caucasian employees, thus allowing these employees to move ahead and obtain promotions while hindering the advancement of minority employees.
d. Discrimination in Recruitment. Defendant’s recruitment policies are designed to benefit Caucasian applicants and reach out only, minimally, to minority applicants. Defendant aggravates its discriminatory recruitment practices by using contract employees to avoid offering minority applicants equal opportunity employment.
e. Harassment/Hostile Work Environment. Defendant maintains and, or, has failed to control a continuing pattern and practice of harassment of minority employees by Caucasian employees, resulting in a hostile work environment for Defendant’s minority employees.
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f. Retaliation. When minority employees of Defendant complain about the above practices and bring them to the attention of management, they are subjected to retaliation.
3. The racial disparities in compensation, promotions, job classifications and job assignments result from, inter alia, Defendant’s Agency-wide policy of delegating discretionary authority to managers and supervisors to make these employment decisions. Defendant’s managers and supervisors exercise their subjective discretion in a racially discriminatory manner that has a disparate impact on minority employees. Defendant is aware of this practice as it has existed over the years but has failed to remedy its effects. Further, management has not put in place meaningful oversight procedures to ensure that instances of racial discrimination are appropriately addressed.
4. This discrimination represents an ongoing company-wide pattern and practice, rather than a series of isolated incidents. Defendant’s written and unwritten policies and practices has subjected and continue to subject the Individual Plaintiffs and Class members to ongoing discrimination and disparate treatment based on their race. Defendant’s actions constitute a continuing violation of the rights of Plaintiffs and the Class.
5. Absent injunctive relief, Defendant’s unlawful practices will continue, to the detriment of the Class. Broad, class-wide injunctive and declaratory relief is necessary to redress Defendant’s unlawful conduct.
III. INDIVIDUAL PLAINTIFFS 6. The Individual Plaintiffs are as follows: a. Christine Mills is an African-American female who has been employed with the Library of Congress in the non professional series since about January 1, 2003, who has been injured by the acts and practices described herein.
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b. Plaintiff Runako Balondemu is an African-American male who has been employed with the Library of Congress in the non professional series since about January 1, 2003, who has been injured by the acts and practices described herein.
c. Plaintiff Geradine Duncan is an African-American female who has been employed with the Library of Congress in the non professional series since about January 1, 2003, who has been injured by the acts and practices described herein.
d. Plaintiff David Hubbard is an African-American male who has been employed with the Library of Congress in the non professional series since about January 1, 2003, who has been injured by the acts and practices described herein.
e. Plaintiff Priscilla Ijeomah is an African-American female who has been employed with the Library of Congress in the non professional series since about January 1, 2003, who has been injured by the acts and practices described herein.
f. Plaintiff Clifton Knight is an African-American male who has been employed with the Library of Congress in the professional series since about January 1, 2003, who has been injured by the acts and practices described herein.
g. Plaintiff Charles Mwalimu is an African (national origin) and/or African American male who was employed with the Library of Congress in the professional series since about January 1, 2003, and who was injured by the acts and practices described herein.
h. Plaintiff Lawrence Perry is an African-American male in the professional series who has been employed with the Library of Congress since about January 1, 2003, who has been injured by the acts and practices described herein.
i. Plaintiff Sharon Taylor is an African American female who was employed with the
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Library of Congress as a probationary employee since about January 1, 2003, and who has been injured by the acts and practices described herein.
j. Plaintiff William Rowland is an African-American male who was employed with the Library of Congress in the non professional series since about January 1, 2003, and who was injured by the acts and practices described herein.
IV. JURISDICTION AND VENUE 7. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343, and 42 U.S.C. § 2000e-5. 8. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) and (c), because Defendant is headquartered and conducts business in the District of Columbia, and because acts and omissions giving rise to this action occurred in the District of Columbia.
V. CLASS ACTION ALLEGATIONS 9. Plaintiffs bring this action individually, and, pursuant to Rule 23 of the Federal Rules of Civil Procedure, on behalf of a class of all minority job applicants and all past, current and future minority employees of Defendant. The Individual Plaintiffs are members of the Class they seek to represent. 10. The members of the Class are so numerous that joinder of all members is impracticable. It is believed by Plaintiffs that the Class is comprised of several hundred person and may be as great as 900 persons. 11. There are questions of law or fact common to the Class, including, without limitation:
a. whether Defendant’s common operating practices and procedures discriminate against minority employees;
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b. whether Defendant’s policies have an adverse impact upon the Class, and, if so, whether this impact is justified by business necessity;
c. whether Defendant’s policy or practice of granting discretionary authority to its managers and supervisors to make decisions concerning compensation, promotions, job evaluations, job classifications and job assignments negatively affects Class members;
d. whether Defendant has a policy or practice of paying minority employees less than Caucasian employees for the same work;
e. whether Defendant has a policy or practice of grooming Caucasian employees for advancement, while denying these same opportunities to minority employees;
f. whether Defendant has a policy or practice of failing to promote qualified minority employees to higher positions within LOC;
g. whether Defendant has a policy or practice of assigning lesser job classifications or wage grades to minority employees than are assigned to similarly situated Caucasian employees;
h. whether Defendant has a policy or practice of making less desirable work assignments to minority employees than to Caucasian employees;
i. whether minority employees at Defendant are subject to a pattern and practice of racial harassment;
j. whether Defendant’s conduct alleged herein constitutes a hostile work environment for the Class;
k. whether Defendant has a policy and practice of retaliating against Class members who object to or who oppose Defendant’s unlawful employment practices;
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l. whether equitable relief is warranted and the nature of such relief; m. whether justice requires further legal and equitable relief. 12. Plaintiffs’ claims are typical of the claims of the members of the Class. The Individual Plaintiffs have been subjected to the discriminatory common operating policies and practices and hostile work environment caused by Defendant. The policies and practices complained of in this Complaint affect the entire Class. 13. Plaintiffs will fairly and adequately represent and protect the interests of the Class. Plaintiffs have no conflict with the Class members and have retained counsel capable of prosecuting a class action lawsuit as well as a case of this nature. 14. This action is properly maintainable under Rules 23(b)(2) and, or, (b)(3) because: a) Defendant has maintained an ongoing pattern and practice of discrimination on the basis of race and a hostile work environment, thereby acting or refusing to act on grounds generally applicable to the Class, making appropriate final injunctive or declaratory relief with respect to the Class as a whole; and b) questions of law and fact common to the Class predominate over any questions affecting only individual members and a class action is superior to other available methods for the fair and efficient adjudication of this case.
VI. FACTUAL ALLEGATIONS 15. The Defendant’s organizational structure creates a segregated working environment in which the Plaintiffs work in groupings that are separate and apart from their Caucasian coemployees. 16. The Defendant has imposed and imposes disproportionate disciplinary actions against the Plaintiffs that it does not impose upon its Caucasian workforce for work related
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conduct that is similar in terms of breaches of any mandated employer protocols, rules and regulations.
17. The Defendant has failed to proportionately offer Plaintiffs incentives for advancement in their careers as it has done in relation to those positions filled primarily by its Caucasian employees.
18. The Plaintiffs disproportionately fill positions that the Defendant treats as deadend career positions and as a result Plaintiffs suffer from work place frustration and are prone to find themselves in hostile work environments.
19. The Plaintiffs are not afforded meaningful work place training that could provide an opportunity for work place advancement and this further exacerbates their frustration of being placed in dead end jobs.
20. The Defendant promotes a two tier classification system that adversely impacts the Plaintiffs. Defendant classifies its workforce as either professional or non-professional with Caucasians dominating the professional tier while the minorities fill the non-professional ranks.
21. The Defendant’s policies and operating practices dissuades Plaintiffs from moving from the non-professional tier to the professional tier. The Defendant does not properly consider actual on the job work experience gained by Plaintiffs so that they may move from the non-professional tier to the professional tier.
22. The Defendant announces job openings that contain qualifying criteria that exceed the criteria needed by an employee to actually carry out the job function thereby limiting Plaintiffs’ advancement opportunities, since Plaintiffs often have sufficient on the job experience to advance but may not possess the superfluous education requirements sought in the job
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announcements. 23. The Defendant is acutely aware of the fact that its minority employees are
discriminated against by its policies and practices, yet rather then seek to amend these policies to mitigate the harm the Defendant has fortified its policies by limiting or corrupting the remedial purposes of the various offices intended to assist Plaintiffs with their grievances including the Equal Opportunity Office, Employee Assistance Office, Human Resources Department and the Labor Relations Offices.
VII. THE INDIVIDUAL PLAINTIFFS’ ALLEGATIONS 24. The Individual Plaintiffs have collectively suffered the form of discrimination alleged herein on behalf of the Class. They have been paid less than similarly situated Caucasian employees. Among other things, this form of class-wide discrimination has reduced the pensions to which retired Class members would otherwise be entitled absent discrimination. They have received unfair performance appraisals, and been assigned lower job classifications, and lower wage grades, and have been denied opportunities for training, mentoring, promotion and advancement provided to similarly situated Caucasian employees. They have been assigned less desirable jobs than their Caucasian counterparts, and they have been subjected to a continuing pattern and practice of harassment and been subjected to an ongoing racially hostile work environment. Finally, when they have complained to their supervisors and Human Resources about these practices, they have been retaliated against.
COUNT I TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
42 U.S.C. § 2000e et seq. 25. Plaintiffs re-allege and incorporate by reference all preceding Paragraphs.
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26. Plaintiffs have been granted the right to sue by this Court. 27. Defendant has discriminated against Plaintiffs and the Class with respect to the terms and conditions of employment because of their race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended. 28. Defendant’s conduct has been intentional and, or, has had disparate impact on Plaintiffs and the Class with respect to the terms and conditions of their employment. 29. By virtue of Defendant’s conduct as alleged herein, Plaintiffs and the Class have been injured.
JURY DEMAND Plaintiffs hereby demand a trial by jury as to all issues so triable.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that the Court enter an order:
a. Certifying this action as a class action, with Plaintiffs as the Class Representatives and their counsel of record as Class Counsel;
b. Adjudicating and declaring that Defendant’s conduct as set forth above is in violation of 42 U.S.C. § 2000e et seq., as amended;
c. Permanently enjoining and prohibiting Defendant and its officers, agents, employees and successors from continuing to engage in the practices complained of herein;
d. Permanently enjoining and requiring Defendant to adopt policies and practices that ensure the cessation of all discriminatory practices affecting the Individual Plaintiffs and the Class and requiring the institution of such measures as to ensure that these practices do not reemerge;
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e. Awarding Plaintiffs and the Class any and all equitable remedies necessary to provide the Individual Plaintiffs and the Class with full relief from the discrimination they have suffered;
f. Awarding attorneys’ fees and reimbursement of costs associated with this action to Plaintiffs’ Counsel;
g. Retaining jurisdiction to ensure that Defendant fully complies with the equitable relief ordered; and
h. Awarding Plaintiffs and the Class such other and further legal and equitable relief as may be appropriate in the interest of justice.
Respectfully submitted, /s/ Jeffery C. Taylor _________________________ Michael J. Snider, Esq. MD #24695 Ari Taragin, Esq. MD #27409 Jeffery C. Taylor, Esq. MD #15528 Jason I. Weisbrot, Esq. MD #28074 Jacob Statman, Esq. MD #16932 Law Offices of Snider & Associates, LLC 104 Church Lane, Suite 100 Baltimore, MD 21208 410-653-9060 phone 410-653-9061 fax mike@sniderlaw.com jeff@sniderlaw.com ecf@sniderlaw.com
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 Case 1:04-cv-02205-HHK -AK Document 73 Filed 07/28/08 Page 1 of 12

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CHRISTINE MILLS, et al., Plaintiffs, v.
JAMES BILLINGTON, Defendant.

Civil Action No. 04-2205 (HHK)(AK)

MEMORANDUM ORDER1 Pending before the Court are Defendant’s Motion for Sanctions for Disobeying Discovery Order, or, in the Alternative, to Compel Additional Discovery Responses (“Def.’s Mot.”) [68], Plaintiffs’ Opposition (“Pl.’s Opp’n”) [71], and Defendant’s Reply [72].

I. Background Plaintiffs are minority employees of the Library of Congress who brought suit on behalf
of themselves and “as representatives of a class of all minority job applicants and all past, current and future minority employees of the Library of Congress,” alleging that Defendant James Billington, the Librarian of Congress, “engaged in an ongoing pattern and practice of discrimination against its minority employees.” (2d Am. Compl. [28] ¶¶ 1-2.) Plaintiffs allege discrimination in various areas, including compensation, promotions, wage classifications, job

1
United States District Judge Henry H. Kennedy referred this matter to the undersigned Magistrate Judge for all discovery-related motions, pursuant to Local Civil Rule 72.2(a). (See Order of Referral to United States Magistrate Judge [39].)
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assignments, and recruitment. (Id. ¶ 2(a)-(d).) Plaintiff further alleges that Defendant maintains a hostile work environment for minority employees and retaliates against minority employees who bring these discriminatory practices to the attention of management. (Id. ¶ 2(e)-(f).)
On May 4, 2007, after Plaintiffs filed their Second Amended Class Action Complaint, Defendant propounded a set of interrogatories titled “Defendant’s First Set of Interrogatories Relating to the Second Amended Complaint to Plaintiffs.” (Mem. Order [44], at 2.) Asserting that Plaintiffs’ responses to these interrogatories were incomplete and that Plaintiffs’ objections were inadequate, Defendant filed a Motion to Compel Discovery Responses. (Id. 1, 3, 5.) The Court granted Defendant’s Motion to Compel on September 27, 2007. (Id. 6.) Specifically, the Court found that Plaintiffs’ answers to Interrogatory Nos. 1-15 were incomplete because they referred to Plaintiffs’ earlier discovery responses. (Id. 2-4.) Additionally, the Court found that Plaintiffs’ objections to Interrogatory Nos. 16-38 constituted an improper general objection and concluded that Plaintiffs had waived their objections to those interrogatories. (Id. 5.) Accordingly, the Court ordered Plaintiffs to supplement their responses to Defendant’s First Set of Interrogatories Relating to the Second Amended Complaint within ten days. (Id. 6.)
Plaintiffs served their Amended Responses to Defendant’s Interrogatories on November 12, 2007. (See Ex. 1 to Def.’s Mot. [68-2].) Defendant now alleges that these supplemental answers contain “the same generic, non-responsive responses (including incorporating prior interrogatory answers by reference)” as Plaintiffs’ original answers. (Def.’s Mot. 5.) Defendant further alleges that “Plaintiffs’ amended responses violate the Federal Rules and assert legally untenable objections.” (Id.) In light of these alleged deficiencies, Defendant asks this Court to sanction Plaintiff by striking the class action allegations from the Second Amended Complaint.
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(Id. 18.) Defendant also asks this Court to compel Plaintiffs to further supplement their responses to Interrogatory Nos. 1-18 and 20-37.
II. Discussion A. Plaintiffs’ Amended Responses to Defendant’s Interrogatories Federal Rule of Civil Procedure 33(b)(3) provides: “[e]ach interrogatory must, to the
extent it is not objected to, be answered separately and fully in writing under oath.” The responding party must state its “grounds for objecting to an interrogatory . . . with specificity,” and “[a]ny ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.” FED. R. CIV. P. 33(b)(4).
If a party to whom an interrogatory was propounded fails to answer, the Rules provide that “a party seeking discovery may move for an order compelling an answer . . . .” FED. R. CIV. P. 37(a)(3)(B). An “evasive or incomplete” answer is treated as a failure to answer when determining whether the discovering party is permitted to file a motion to compel. Fed. R. Civ. P. 37(a)(4). The party moving to compel discovery has the burden of proving that the opposing party’s answers were incomplete. Daiflon, Inc. v. Allied Chem. Corp., 534 F.2d 221, 227 (10th Cir. 1976), cited in U.S. ex rel. El-Amin v. George Washington Univ., No. 95-cv-2000, 2000 WL 1763679, at *1 (D.D.C. Nov. 27, 2000).
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1. Plaintiffs’ objections to Interrogatory Nos. 1-8, 12-18, 20-25, and 27-36 are inappropriate. a. Interrogatory Nos. 1-8 are proper contention interrogatories.
Plaintiffs object to these interrogatories because they relate to the merits of their claims against Defendants. (See, e.g., Ex. 1 to Def.’s Mot. 1.) Interrogatories that seek to uncover the basis for a plaintiff’s claims are called “contention interrogatories.” See Everett v. USAir Group, Inc., 165 F.R.D. 1, 3 (D.D.C. 1995) (“Contention interrogatories ‘ask a party: to state what it contends, . . . [or] to state all the facts upon which it bases a contention.) (citing B. Braun Med. Inc. v. Abbott Labs., 155F.R.D. 525, 527 (E.D. Pa. 1994)). Rule 33(a)(2) recognizes that “the propriety of a ‘contention interrogatory’ may depend upon the point in the proceedings at which it is served.” Id. at 3-4. Therefore “the court may order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time.” FED. R. CIV. P. 33(a)(2).
Because discovery in this case has been ongoing for more than a year, the Court finds that it is appropriate for Plaintiffs to respond to inquiries about the basis for their claims. Therefore the Court will overrule Plaintiffs’ objection that Interrogatory Nos. 1-8 relate to the merits of their claims.
b. Plaintiffs’ objections to Interrogatory Nos. 16-18, 20-25, and 27-36 have been waived pursuant to this Court’s September 27, 2008 Order.
In its September 27, 2008 Memorandum Order, the Court held that Plaintiffs had waived their objections to Interrogatory Nos. 16-38. (Mem. Order 5.) In direct contravention of this
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order, Plaintiffs interposed new objections in response to many of these interrogatories when they submitted their amended responses.2 Because the Court previously held that Plaintiffs had waived their objections to these interrogatories, the Court will once again order Plaintiffs to supplement their responses.
c. Plaintiffs’ objections to Interrogatory Nos. 1, 2, 4, 7, 8, and 12-15 are waived as untimely.
Plaintiffs, in their Amended Responses to Defendant’s Interrogatories, raise objections to Interrogatory Nos. 1, 2, 4, 7, 8 and 12-15 that they did not raise in their original responses. As stated above, any ground for objection “not stated in a timely objection is waived unless the court, for good cause, excuses the failure.” FED. R. CIV. P. 33(b)(4). Not only are the objections to these interrogatories untimely, but Plaintiffs failed to demonstrate good cause for their failure to raise these objections in their original responses. Therefore the Court finds that Plaintiffs waived their objections and will order Plaintiffs to supplement their answers.
d. Plaintiff may not object to otherwise proper interrogatories on the grounds that Defendant is already aware of the answer.
Plaintiffs respond to Interrogatory Nos. 1-8 by stating that they may only be answered from documents that are in the exclusive possession of Defendant. (See, e.g., Ex. 1 to Def.’s
2
Even if the Court had not previously held that Plaintiffs waived their right to object to these interrogatories, the Court would now find that they have waived their objections on account of their failure to timely raise them. See FED. R. CIV. P. 33(b)(4). Moreover, the specific objections that Plaintiffs raised in their amended responses to Interrogatory Nos. 16-18, 20-25, and 27-36 are the types of objections that this Court has rejected elsewhere in this Memorandum Order. For example, Plaintiffs object to Interrogatory Nos. 21-24 and 30 on the ground that they seek information that is within the exclusive knowledge of Defendant and they object to Interrogatory Nos. 25, 28, 29, and 33-35 on the ground that Defendant is already aware of the answer. The impropriety of such objections is discussed below.
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Mot. 5-6 (stating that a portion of Interrogatory No. 5 “can only be specifically answered from documents that are within the exclusive province of Defendant”).) Similarly, Plaintiffs respond to Interrogatory Nos. 4 and 14 by stating that Defendant already has knowledge of the information sought, “thus making Defendant’s request in part oppressive, redundant, and/or cumulative.” (Id. 5.) While it is axiomatic that a party cannot provide information that it does not possess, a party may not relieve itself of its obligation to fully and completely respond to an interrogatory by stating that the information sought is already in the requester’s possession. Moreover, each party has a duty to supplement its prior discovery responses as it becomes aware of new information. FED. R. CIV. P. 26(e)3. To the extent that Plaintiffs have the requisite knowledge to respond to these interrogatories, they must now do so. If Plaintiffs are still unable to respond to one or more of these interrogatories, they shall so state under oath and supplement their responses as additional information becomes available.
e. Plaintiff’s Privacy Act objections are misplaced. Plaintiffs object to Interrogatory Nos. 7, 8, 16, 28, and 29 on the basis of the Privacy Act.4 Plaintiffs’ reliance on this statute is misplaced, because the Privacy Act only applies to agencies,
3 Rule 26(e) provides, in relevant part: “A party who . . . has responded to an interrogatory . . . -- must supplement or correct its . . . response: (A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” FED. R. CIV. P. 26(e)(1)(A).
4 Plaintiff did not assert its Privacy Act objections in their original interrogatory responses. However, the Court recognizes that a party does not waive its claims of privilege under the Privacy Act by failing to timely raise them. Byrd v. Reno, No. 96-cv-2375, 1998 WL 429676, at *5 (D.D.C. Feb. 12, 1998). Therefore the Court must address whether these objections have merit.
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as that term is defined in the Freedom of Information Act5, and therefore would not affect a private citizen’s obligation to provide information during discovery. See 5 U.S.C. § 552a(b) (discussing the circumstances under which an agency may disclose records). Additionally, Judge Kennedy approved a consent protective order on December 6, 2007 to protect confidential information, including information that would be subject to the Privacy Act. (Consent Protective Order [52].) Therefore Plaintiffs may not use the Privacy Act as a basis for not responding to these interrogatories.
2. Plaintiffs failed to separately and fully respond to Interrogatory Nos. 1-3, 5-16, 21-24, 26-28, and 30-36.
As stated above, Rule 33(b)(3) states that “[e]ach interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.” Responses to interrogatories “must be responsive, full, complete and unevasive. Insofar as practical they should be complete within themselves. Materials outside the answers and their addendum ordinarily should not be incorporated by reference.” Pilling v. General Motors Corp., 45 F.R.D. 366, 369 (D. Utah 1968).
Plaintiffs’ supplemental responses to Interrogatory Nos. 1-3, 5-16, 21-24, 27, 28 and 3036 are not full and complete because they refer Defendant to documents and other interrogatory answers. For example, in response to Interrogatory No. 2, Plaintiffs assert an objection and then state “[n]otwithstanding this objection, please refer to Response #1.” (Ex. 1 to Def.’s Mot. 4.)
5 Under the Freedom of Information Act, the term “agency . . . includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.” 5 U.S.C. § 552(f)(1).
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Similarly, the answer to Interrogatory No. 5 refers Defendant “to Responses #1, 3, 4, 17, 19, 2127, 31.” (Id. 6.) In their responses to Interrogatory Nos. 22 and 23, “Plaintiffs refer Defendant to response #21, and to Plaintiffs’ individual EEO complaints. (Id. 12.) This pattern of references to documents and other interrogatory answers is repeated throughout Plaintiffs’ Amended Responses to Defendant’s Interrogatories.
Such non-specific references to documents and other discovery responses do not further the central aim of discovery, which is to narrow the factual issues in a case in preparation for dispositive motions and trial. More fundamentally, these responses do not comply with Rule 33(b)(3)’s requirement that the responding party answer each interrogatory “separately and fully.” Accordingly the Court will order Plaintiffs to supplement their responses to these interrogatories.
3. Plaintiffs’ substantive answers to Interrogatory Nos. 1, 4, and 37 are incomplete. a. Interrogatory No. 1
Interrogatory No. 1 asks Plaintiffs to provide details about the “common operating procedures [that] discriminate against minority employees.” (Ex. 1 to Def.’s Mot. 1.) Specifically, Defendants sought “the name or title of each practice and procedure, the date when each practice or procedure became effective; the person(s) who implemented each practice and procedure, and all facts showing that each named Plaintiff was adversely affected by each practice or procedure.” (Id.) In response, Plaintiffs state that “[s]ince January 1, 2003, Defendant has engaged in a common operating policy, practice, or procedure that denies
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Plaintiffs” career advancement and promotion opportunities, that promoted racially disparate treatment and a racially hostile work environment, and that reflects a toleration for disparate disciplinary treatment. (Id. 1-3.) Although their response is lengthy, it is incomplete in that it groups all of the named Plaintiffs together and therefore fails to set forth “all facts showing that each named Plaintiff was adversely affected by each policy and procedure.” For example, the response does not specify the circumstances under which each individual named Plaintiff was subjected to a racially hostile work environment or whether all (as opposed to only some) of the Plaintiffs were subjected to disparate disciplinary treatment. Defendant is entitled to this level of detail so that he may adequately respond to Plaintiffs’ class action allegations. Therefore Plaintiffs must supplement their response to Interrogatory No. 1.
b. Interrogatory No. 4 Interrogatory No. 4 asks Plaintiffs to identify and provide details about “Defendant’s ‘policy or practice’ that ‘pays minority employees less than Caucasian employees for the same work.’” (Id. 4-5.) In response, Plaintiffs identify a Caucasian employee who was allowed to perform certain duties and receive training opportunities that were not given to Plaintiffs. (Id. 5.) Plaintiffs also point to their allegation that “Defendant uses recruitment methods that target only persons outside of Plaintiffs protected class.” (Id.) These answers are not responsive to Interrogatory No. 4, which specifically asks about disparities in pay between minority and Caucasian employees. Plaintiffs do “contend that Defendant has allowed a disparate plan or scheme that encourages reward and/or extra compensation to employees outside of Plaintiff’s protected class” (Id.), but they do not supply the level of detail that Defendants seek.
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Accordingly Plaintiffs must supplement their answer.
c. Interrogatory No. 37 Interrogatory No. 37 asks Plaintiffs to “[i]dentify all documents, data, data compilation(s), information or the like that Plaintiffs intend to use, considered, and/rely upon in support of their request for class certification.” (Id. 17.) Plaintiffs respond that they “intend to use all documentation turned over in discovery related to class certification; documentation obtained from all similar federal litigation related to African American employees of the Library filed against James H. Billington, Librarian, since January 1, 2003.” (Id.) They further respond that they “intend to use evidence obtained from cases such as Cook v. Billington, supra, and the Howard R.L. Cook & Tommy Shaw Foundation for Ethnic Employees of the Library Foundation v. Billington, 07cv1734-HHK.” (Id.) Plaintiffs’ identification of “documentation from all similar federal litigation” is problematic for two reasons. First, aside from the two cases enumerated in their response, Plaintiffs do not identify the “similar federal litigation” to which they refer. This leaves Defendant to speculate which federal cases include documents that Plaintiffs intend to use in this litigation. Second, while Plaintiffs state they “intend to use all documentation” produced in the instant case, they only state that they intend to use “documentation” from the other cases. (Ex. 1 to Def.’s Mot. 17 (emphasis added)). Therefore Plaintiffs have failed to put Defendants on notice which specific documents from the other federal cases they intend to use. Plaintiffs’ vague response to this interrogatory creates the type of guessing game that the discovery process is designed to prevent. Accordingly, Plaintiff must supply additional detail in response to
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Interrogatory No. 37.
B. Defendant’s Request for Sanctions Defendant seeks sanctions pursuant to Federal Rule of Civil Procedure 37(b)(2)(A), which provides that a court may sanction a party who “fails to obey an order to provide or permit discovery.” The rule provides a non-exhaustive list of sanctions, including “striking pleadings in whole or in part.” FED. R. CIV. P. 37(b)(2)(A)(iii). In addition to or instead of the sanctions listed in Rule 37(b)(2), “the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” FED. R. CIV. P. 37(b)(2)(C). When imposing sanctions, the court must ensure that the sanctions award is “proportional to the underlying offense.” Caldwell v. Ctr. for Correctional Health & Policy, 228 F.R.D. 40, 42 (D.D.C. 2005). See also Bonds v. D.C., 93 F.3d 801, 808 (D.C. Cir. 1996)(“The choice of sanction should be guided by the ‘concept of proportionality’ between offense and sanction.”) As a sanction for Plaintiffs’ failure to comply with this Court’s September 27, 2007 Order, Defendant asks this Court to “strike Plaintiff’s class allegations from their Second Amended Complaint.” (Def.’s Mot. 15.) Although the Court has already found that Plaintiffs violated this Order by failing to adequately supplement their interrogatory responses, the Court does not believe that the sanction sought by Defendant is “proportional to the underlying offense.” The Court will, however, order Plaintiffs to reimburse Defendant for the fees and costs he incurred in preparing and filing the instant motion because the Court does not believe that
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Plaintiffs’ failure to comply with the September 27, 2007 Order was substantially justified or that an award of fees would be unjust. The Court also cautions Plaintiffs that further violations of this Court’s order and further failures to comply with their discovery obligations under the Federal Rules may result in more severe sanctions in the future.
III. Conclusion For the foregoing reasons, it is this 28th day of July, 2008, hereby ORDERED that Defendant’s Motion for Sanctions for Disobeying Discovery Order, or,
in the Alternative, to Compel Additional Discovery Responses [68] is granted; and it is further ORDERED that Plaintiffs supplement their responses to Interrogatories Nos. 1-18 and
20-37 within ten days of this Memorandum Order; and it is further ORDERED that Plaintiffs reimburse Defendant for the fees and costs he incurred on
account of Plaintiffs’ noncompliance with the Court’s September 27, 2007 Order. Within five days of this Memorandum Order, Defendants shall submit to the Court via electronic filing a statement of the fees and costs incurred in connection with their Motion for Sanctions for Disobeying Discovery Order, or, in the Alternative, to Compel Additional Discovery Responses.
/s/ ALAN KAY UNITED STATES MAGISTRATE JUDGE
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 Case 1:04-cv-02205-HHK -AK Document 117 Filed 04/27/09 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CHRISTINE MILLS, et al., Plaintiff, v.
JAMES H. BILLINGTON, Defendant.

Civil Action 04-02205 (HHK) (AK)

ORDER Before the court is “Plaintiffs’ Motion for Leave to File a Motion for Class Certification [Out of Time]” [#105]. Upon consideration of the motion, the opposition thereto, and the record of this case, it is this 27th day of April 2009, hereby ORDERED that plaintiffs’ motion [#105] is GRANTED; and it is further ORDERED that plaintiffs must file a motion for class certification, if any, on or before July 22, 2009; and it is further ORDERED that plaintiffs may conduct discovery related to class certification, which discovery shall close upon the filing of their motion for class certification or on July 22, 2009, whichever is earlier.
Henry H. Kennedy, Jr. United States District Judge

 
 Case 1:04-cv-02205-HHK -AK Document 172 Filed 04/09/10 Page 1 of 60

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________

Christine Mills et. al.,

)

)

Plaintiffs

)

)

v.

)

)

Civil Action No. 04-2205 (HHK/AK)

James Billington, Librarian,

)

Library of Congress,

)

)

Defendant.

)

______________________________)

DEFENDANT’S MOTION TO DISMISS, OR ALTERNATIVELY, FOR SUMMARY JUDGMENT

Pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure (“Federal

Rules”), Defendant, James Billington, Librarian of Congress, moves to dismiss the above-

captioned suit for lack of jurisdiction or failure to state a claim upon which relief can be granted.

Alternatively, pursuant to Rule 56 of the Federal Rules, Defendant moves for summary judgment

in his favor because there are no material facts in genuine dispute and Defendant is entitled to

judgment as a matter of law. Pursuant to Local Rules 7(a), 7(h) and 7(c) respectively, a

memorandum of points and authorities supporting this motion, a concise statement of facts not in

dispute, and a proposed order consistent with the relief requested in the motion are attached.

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Respectfully submitted,
/s/ Ronald C. Machen Jr. /kvm RONALD C. MACHEN JR., D.C. Bar #447889 United States Attorney
/s/ Rudolph Contreras RUDOLPH CONTRERAS, D.C. Bar #434122 Assistant United States Attorney
/s/ Julia K. Douds /bmr JULIA K. DOUDS Special Assistant United States Attorney U.S. Attorney’s Office for the District of Columbia, Civil Division 555 4th Street, N.W. Washington, D.C. 20530 Ph: (202) 707-7198 Fax: (202) 514-8780 E-mail: jdou@loc.gov
/s/ Beverly M. Russell BEVERLY M. RUSSELL, D.C. Bar #454257 Assistant U.S. Attorney Office of the United States Attorney for the District of Columbia, Civil Division 555 Fourth St., N.W., Rm. E-4915 Washington, D.C. 20530 Ph: (202) 307-0492 Fax: (202) 514-8780 E-mail: beverly.russell@usdoj.gov
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Case 1:04-cv-02205-HHK -AK Document 172 Filed 04/09/10 Page 3 of 60

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________

Christine Mills et. al.,

)

)

Plaintiffs

)

)

v.

)

)

Civil Action No. 04-2205 (HHK/AK)

James Billington, Librarian,

)

Library of Congress,

)

)

Defendant.

)

______________________________)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS, OR ALTERNATIVELY, FOR SUMMARY JUDGMENT

Plaintiffs, Christine Mills, Runako Balondemu, Geraldine Duncan, David Hubbard,

Priscilla Ijeomah, Clifton Knight, Charles Mwalimu, Lawrence Perry, Sharon Taylor, and

William Rowland, are current or former employees of the Library of Congress (also referred to as

“Library”). They brought this action alleging that they have been discriminated against on the

basis of race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,

as amended. Pls.’ Second Am. Class Action Compl. ¶ 27. They specifically seek to represent a

class of minority employees who have allegedly been subjected to a hugely expansive and

diverse range of discriminatory employment acts, and ask that the Court certify this case as a

class action. Id., p. 10. For reasons stated below, this suit should be dismissed for lack of

subject matter jurisdiction or failure to state a claim upon which relief may be granted.

Alternatively, summary judgment should be granted to Defendant.

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A. STATEMENT OF FACTS 1. Statutory and Regulatory Background By statute, “[a]ll personnel actions affecting employees or applicants for employment” in
the federal government “shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). A Library employee who believes that he or she has been discriminated against and wishes to bring Third Party (class action) claims must file a complaint, in writing, with the Library’s Assistant Chief, Equal Employment Opportunity Complaints Office (“EEOCO”). LCR 2010-3.1, sec. 12 (attached hereto as Ex. 1). Specifically, the employee who wishes to be a class agent and who believes he or she has been subjected to discrimination must submit Library Form 16-5, Allegation of Discrimination, within sixty (60) workdays of the date of the matter giving rise to the allegation of individual discrimination, or sixty (60) workdays of its effective date, if it is a personnel action. LCR 20103.2, sec. 4.A (attached hereto as Ex. 2).
A complaint, or a portion thereof, may be rejected if it is not timely filed, consists of allegations contained in a previous complaint, is not within the purview of LCR 2010-3.2, is untimely, lacks specificity and detail, was not submitted in writing or signed by the class agent, or does not meet the requirements for a class action (i.e,. numerosity, common questions of fact, typicality, and representation). Id., sec. 6.B. If the Complaint is accepted, the Library then has thirty (30) workdays to investigate the Complaint. Ex. 1, LCR 2010-3.1, sec. 8.B. An Equal Opportunity Officer reviews the Investigator’s report and file, and submits written findings to the Assistant Chief, EEOCO, no later than ten (10) workdays after the Officer receives the investigative report. Id., sec. 8.C. Within five (5) days of receiving the Equal Opportunity
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Officer’s written findings, the Assistant Chief, EEOCO, examines the written findings, and prepares a written report containing his/her conclusions and recommendations. Id., sec. 8.D. The Assistant Chief submits his/her report and the complete file to the Chief, EEOCO. Id., sec. 8.E. The Chief, EEOCO, renders the final agency decision with or without an administrative hearing. Id., sec. 12.F. If the employee is dissatisfied with the final agency decision, he or she may file a civil action within 90 days of receipt of the final decision, or alternatively, after 180 days after filing the administrative complaint with the Assistant Chief, EEOCO, if there has been no decision on the complaint. Ex. 2, LCR 2010-3.2, sec. 17.A.
2. Facts and Prior Proceedings a. Cook v. Billington, Civil Action No. 82-0400(GK)
This case raises similar claims to those presented in Cook v. Billington, Civil Action No. 82-0400(GK). In Cook, the plaintiffs alleged that "the Library engaged in racially discriminatory employment practices, including the use of illegal non-competitive appointments to exclude African-Americans from advancement." Cook v. Billington, No.Civ.A. 82-0400(GK), 2003 WL 24868169, *1 (D.D.C. Sept. 8, 2003). In addition to their claim based on hiring and promotions, the Cook plaintiffs also alleged that the Library practiced unequal recruitment standards, undertook harsher and more stringent performance standards and more severe disciplinary penalties against minority employees, and refused to promote or assign appropriate duties to those employees who successfully completed training programs. Cook v. Billington, Civil Action No. 82-0400(Compl., p. 24)(attached hereto as Ex. 3). In the complaint, Cook, a class agent, identified multiple positions for which he had applied and had been rejected. Id., pp. 18-21.
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In September 1995, the Cook parties entered into a Settlement Agreement which included both monetary relief ($8.5 million) and injunctive relief. Cook v. Billington, 2003 WL 24868169, *1; see also Ex. 4, Settlement Agreement. The terms of the agreement “constitute[d] full and complete satisfaction of all claims of Class Members against the Library concerning racial discrimination in violation of Title VII. . ., resulting in non-selecction, either competitively or non-competitively, in or into Professional and Administrative positions within the Library that [arose] out of events occurring up to final District Court approval of the Agreement.” Ex.4, Settlement Agreement, ¶ 31. Further, upon final Court approval of the Agreement, “the class as a whole and each class member [were] bound by the doctrines of res judicata and collateral estoppel with respect to all such claims.” Id. ¶ 31. The Settlement Agreement was granted final approval on September 22, 1995, and became fully effective on December 1, 1996. Cook v. Billington, 2003 WL 24868169, *1. The Agreement included relief in the form of promotions and, as indicated above, monetary awards totaling $8.5 million. Id. The Agreement was set to expire on December 1, 2000, but two years prior, in 1998, the Cook plaintiffs alleged noncompliance with the Settlement Agreement. Id.
In January 2001, in lieu of ruling on the plaintiffs’ 1998 Motion regarding the Library’s alleged non-compliance, the Court approved the parties' jointly proposed resolution "and ordered the Library to adopt new statistical analysis and selection process modifications." Id. at 3; see also Cook v. Billington, Civil Action No. 82-0400(GK)(Docket Entry No. 836, Order) . Pursuant to the Court’s Order, the parties’ joint resolution (specifically, their Joint Report) became part of the record in the case and defined the obligation of the Library of Congress under the Settlement Agreement. Id.
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As to the selection process modification, the “Library implemented a [] three-stage competitive selection procedure.” Cook v. Billington, 2003 WL 24868169, *2. As noted by the Court in its September 8, 2003 Memorandum Opinion, the procedure is a “validated” hiring process comporting with the Uniform Guidelines on Employee Selection procedures. Id. “The Library used ‘AVUE,’ a computerized hiring system, to implement [the] [] procedure.” Id. As to the first stage of the competitive selection procedure, the AVUE system ranks applicants based on application responses and generates a list of the top seven applicants for referral for interview. Id. The second stage of this validated process is the interview of all referred applicants and the third stage is the final selection from those applicants found to be “fully acceptable” for the position. Id. The Court extended its oversight period of the selection process to December 1, 2002. Id., at *7.
Shortly before expiration of the Court’s oversight period, in November 2002, the Cook plaintiffs moved to extend the oversight period and for the appointment of a receiver. Cook v. Billington, Civil Action No. 82-0400(GK)(R. 861). On September 8, 2003, the Court denied that motion.
Notably, nine of the ten plaintiffs in this case were class members of the Cook class action, and all nine received monetary relief in addition to the non-pecuniary relief provided to the class as a whole. Specifically, Mills received $1,832.60, Balondemu received $1,596.98, Duncan received $5,513.32, Hubbard received $2,613.94, Ijeomah received $1,007.93, Mwalimu received $8,277, Knight received $6,532.58, Perry received $5412. 27, and Rowland received $7,370.92. Ex. 5, Claimant Review Status Report (Excerpts). Geraldine Duncan also received a promotion as part of the Cook settlement. Id. Sharon Taylor, the remaining plaintiff, did not
5

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receive any monetary relief not because she opted out of the Cook class action but because she was not even employed by the Library during the relevant period
b. The Current Lawsuit On or around May 28, 2004, just eight months after the Court denied the Cook plaintiffs’ motion to extend the oversight period, plaintiffs, Christine Mills, Priscilla Ijeomah and Amy Barnes, filed an administrative complaint with the Library of Congress, pursuant to Library of Congress Regulations (LCR) 2010-3.1. R. 1-1, Letter from Christine M. Mills, Priscilla C. Ijeomah, and Amy D. Barnes to Jean Y. Myers, May 28, 2004. The complaint alleged that the Library discriminated against all African American and minority employees on the basis of color, race, national origin and sex. Id. at 1. The administrative complaint specifically alleged that the Library (1) denies African American and other minority employees equal opportunity for hiring by assigning them to the least desirable jobs where opportunities for training and advancement are limited, (2) utilizes job recruiting methods for supervisory, managerial, technical, and non-professional and professional positions designed primarily to reach white persons, (3) utilizes classification systems to keep African-American and other minority employees concentrated in lower graded positions, (4) uses a dual classification system to prevent African American and other minority employees classified as non-professional from working at home, (5) denies African American employees training and other experience building assignments which would enhance their promotion opportunities, (6) maintains and utilizes testing, education, training experience, and other job requirements and selection criteria which exclude African Americans, Spanish speaking, and other minority staff from hiring, training and promotion opportunities, (7) maintains a segregated work force placing
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African American and Spanish speaking employees in a promotion and training system based upon subjective evaluations of white supervisors locking the minority employees into discriminatory assignments and denying them equal opportunity for promotion, (8) disciplines African Americans more harshly than white employees, (9) recruits contract employees to avoid equal employment opportunity for African American employees, (10) maintains standards, selections, promotions, and assignments in a manner that gives contract employees the advantage over African American employees, (11) retaliates against African Americans for filing charges of discrimination against the Library, (12) maintains a workforce that keeps African American males in lower paying grades and positions, (13) maintains devices, regulations, and systems using U.S. Government funds to allow no bid awards resulting in preselection having an adverse impact on African Americans, (14) grants open access to private contract employees to the personnel files, records and databases of Federal employees violating the private and civil rights of government employees, (15) establishes offices which ostensibly are for the purpose of serving employees, but instead exist as conspiracies by management and have an adverse impact on African American employees, and (16) maintains a system of regulations and labor union contracts which are discriminatory against African American employees. Id.
On September 20, 2004, the Library of Congress dismissed the administrative complaint on multiple grounds. R. 1-1, Letter from Ricardo H. Grijalva to Christine Mills, Sept. 24, 2004. The Library of Congress found that the Plaintiffs had failed to make a good faith effort to cooperate with the Library during the investigation of the Complaint, grounds for dismissal pursuant to the Library’s regulations. Id.; see also Ex. 1, LCR 2010-3.1, sec. 7.C. The Library also declined the Plaintiffs’ administrative complaint on exhaustion grounds finding that the
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Plaintiffs’ complaint was vague and lacked specificity and detail. R. 1-1, Letter from Ricardo H. Grijalva to Christine Mills, at 1, Sept. 24, 2004. The Library noted that the EEO counselor had made multiple attempts to “acquire precise dates for the acts of discrimination as alleged in the complaint.” Id. at 1-2. The EEO counselor’s report also revealed that the class agents could not identify incidents of alleged discrimination specific to the agents, and also “failed to identify any responsible management official(s) other than the Librarian and the Deputy Librarian.” Id. at 2. In addition to dismissing Plaintiffs’ administrative complaint for failure to exhaust administrative remedies because of the Plaintiffs’ lack of cooperation during the administrative investigation and lack of specificity in the administrative complaint, the Library also dismissed the Complaint as moot because certain of the allegations in the administrative complaint - i.e., those related to hiring, the classification system, and standards for selections and promotions - were identical to those raised in the Cook class action. Id. at 7. The Library also dismissed Plaintiffs’ administrative complaint for failure to state a cause of action because of the lack of any specific allegation of discrimination personal to any of the complainants. Id.
On December 20, 2004, Plaintiffs (Mills, Barnes, Ijeomah, Runako Balondemu, Arnice Cook, Robert Cooper, Michael Durrah II, Geraldine Duncan, Priscilla Ijeomah, Lawrence Perry, William Rowland, and Mark A. Wilson) filed this suit. On June 6, 2005, Defendant moved to dismiss this suit for failure to exhaust administrative remedies based on Plaintiffs’ failure to cooperate in good faith with the administrative EEO process. R. 6, Def.’s Mot. Dismiss. On August 1, 2005, Plaintiffs opposed Defendant’s motion, and on May 16, 2006, this Court denied Defendant’s Motion to Dismiss. The Court explained that there was conflicting evidence as to Plaintiffs’ participation in the administrative process. R. 15, Mem. Op. and Order, p. 9. Noting
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that the Plaintiffs accepted the counselor’s invitations to meet and disputed the allegation that they were unwilling to provide specific details concerning discrimination, the Court explained that the record in this case did not reflect “[a] reluctance [by plaintiffs] to assist the efforts of the agency counselor.” Id., at 10. The Court also found that the Library, contrary to its regulations, failed to give Plaintiffs notice of the deficiencies in the complaint and an opportunity to correct the deficiencies. Id. Concluding that the Library erred in processing Plaintiffs’ complaint, the Court found that “plaintiffs constructively exhausted their administrative remedies.” Id. at 12.
On December 11, 2006, Plaintiffs, now joined by Clifton Knight, filed their First Amended Complaint, and on April 2, 2007, they filed their Second Amended Complaint. They alleged discrimination on the basis of compensation, promotions, wage classifications and job assignments, recruitment, harassment/hostile work environment, and retaliation. Second Am. Class Action Compl. ¶ 2. They claim that the questions of law “common to the Class” include without limitation whether (1) the Library’s operating practices and procedures discriminate against minority employees, (2) the Library’s policies granting discretionary authority to its managers has a negative impact on class members, (3) the Library has a policy or practice of paying minority employees less than Caucasian employees for the same work, (4) the Library has a policy or practice of grooming Caucasian employees for advancement but denying minorities similar opportunities, (5) the Library has a policy or practice of assigning lesser job classifications and wage grades to minority employees, (6) the Library has a policy or practice of giving less desirable work assignments to minority employees, (7) minority employees are subject to a pattern of racial harassment, (8) the Library’s conduct constitutes a hostile work
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environment for the Class, and (9) the Library has a policy or practice of retaliating against Class members who object to the Library’s unlawful employment practices.1 Id. ¶ 11.
However, neither in their Complaint nor in discovery responses do any of the Plaintiffs identify the specific adverse personnel actions taken against them occurring within 60 days of the filing of the administrative complaint. The allegations raised by the specific class members follow:
Christine Mills - Plaintiff Mills has been employed with the Library of Congress since 1983. R. 120-6, Pls.’ Supplementary Responses to Def.’s First Set of Interrogatories Re. the Second Am. Compl. of Pls., at 1 (Christine Mills). She is currently a GS-8 Senior Circulation Technician. Id. In the Second Amended Complaint, Mills states that she is an African-American female employed in a non professional series and that she has been injured by the acts and practices set forth in the Complaint. Second Am. Class Action Compl. ¶ 6.a.. However, she does not identify any specific acts serving as bases for a timely filed administrative complaint for purposes of this suit (i.e., identifying an alleged wrongdoing directed against her personally of which she complained within 60 days of the filing of the May 2004 administrative complaint). Similarly, her discovery responses describe no specific acts or events which serve or can serve as the bases for a timely filed administrative claim. Specifically, she alleges that she has applied “for numerous
1At a September 17, 2009 Meet and Confer conference which was transcribed, Plaintiffs’ counsel averred that his clients were no longer pursuing harassment, hostile work environment, and retaliation claims. R. 164-1, Meet and Confer Transcr., 5:7 to 6:5; 47:9 to 47:16; and 49:21 to 50:2 (Sept. 17, 2009). Accordingly, these claims are not addressed herein. If, however, Plaintiffs do in fact pursue these claims, Defendant anticipates supplementing this motion to address the claims.
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positions and fought for promotions/reclassifications in her position” but provides no information on this allegation – nothing whatsoever on the positions/vacancies sought, the time frame, whether she was determined qualified for the positions which she sought, the selectee for the position, etc. R. 120-6, Pls.’ Supplementary Responses to Def.’s First Set of Interrogatories Re. the Second Am. Compl. of Pls. at 1 (Christine Mills). She alleges that she is adversely affected by the AVUE system but, again, does not identify any position for which she applied and which serves or can serve as the basis of a timely filed administrative complaint. Id. at 1-2. She alleges that blacks are more likely to be disciplined – downgraded, suspended or terminated from positions -- but does not allege that she has been subjected to any discipline which could serve as the basis of a timely filed administrative complaint. Id. at 1-2. She alleges that being classified as a nonprofessional limits her professional opportunities. However, she provides no information on this allegation - for example, information indicating that she sought reclassification of her position, from whom she sought reclassification, and the reasons presented for the denial. Notably, she provides no facts indicating that this matter was raised within sixty (60) days of the filing the administrative complaint. Id. at 2. Further, she does not identify which Library classification policy or practice is at issue, and how the policy or practice adversely affected her. She points to her years of experience at the Library and her belief that she has performed her work in a professional manner as the grounds for her belief that her position should be reclassified. Id. at 8. Yet she does not identify why these factors are determinative for purposes of reclassification, and thus, the Library’s failure to reclassify her position suggests a discriminatory policy or practice. She alleges
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that she has been denied “significant training details” but does not identify any specific training requested, from whom she sought the training, any reasons presented for denial, and for purposes of a timely filed administrative complaint, whether she sought the training within 60 days of the filing of the administrative complaint. Id. at 3. She was not able to identify any policies or practices showing that Defendant “pays minority employees less than Caucasian employees for the same work,” id. at 5, grooms Caucasian employees for advancement, fails to promote qualified minorities to higher positions, id. at 6, assigns lesser job classifications or wage grades to minority employees as compared to Caucasian employees, id., and makes less desirable work assignments to minority employees than to Caucasian employees, id. at 6-7. She was also unable to describe any two-tiered classification system used by Defendant for purposes of promotion. Id. at 6-7.
Runako Balondemu - Plaintiff Balondemu has been employed with the Library at the GS9 level since 2003. R. 120-2, Pls.’ Supplementary Responses to Def.’s First Set of Interrogatories Re. the Second Am. Compl. of Pls., at 1 (Runako Balondemu). In the Second Amended Complaint, Mwalimu alleges that, as an African-American male employed by the Library of Congress, he has been injured by the acts and practices set forth in the Complaint. Second Am. Class Action Compl. ¶ 6.b. However, in the Second Amended Complaint, he does not identify any specific acts serving as bases for a timely filed administrative complaint for purposes of this suit (i.e., identifying an alleged wrongdoing directed at him personally of which he complained within 60 days of the filing of the May 2004 administrative complaint). Id. Similarly, his discovery responses
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describe no specific acts or events serving as the bases for a timely filed administrative claim. He alleges that he was given sporadic performance evaluations but otherwise does not identify any specific facts related to this allegation which indicate that the purported wrongful acts could serve as the basis for a timely filed administrative complaint. R. 1202, Pls.’ Supplementary Responses to Def.’s First Set of Interrogatories Re. the Second Am. Compl. of Pls., at 1 (Runako Balondemu). He explains that his performance appraisal was used to retaliate against him when his supervisor, who had not been employed for a year with the Library, wrote the evaluation, but does not otherwise plead any facts indicating that this occurrence served or can serve as the basis for a timely filed administrative complaint. Id. at 1. He alleges that he was denied “cash awards, training[], supervisory assistance, and [] overtime, comptime, and credit hours,” but again does not plead or otherwise describe any facts indicating that the acts or occurrences related to the allegations serve or can serve as the bases for a timely filed administrative complaint. Id. at 1 and 3. He alleges that he was denied career ladder promotions but does not plead or otherwise describe any facts indicating that this alleged occurrence served or can serve as the basis for a timely filed administrative complaint. Id. at 3. Indeed, he provides no information on the matter at all – nothing on the time frames in which he sought promotions, the decision makers, the reasons presented for the denial of the promotions. He alleges that he applied for other positions twice “but felt pressured to cancel his application[,]” but does not describe any facts indicating that the occurrences serve or can serve as the bases for a timely filed administrative complaint. Id. at 2. He alleges that the AVUE system “asks applicants to identify their race [and that] this allows
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for discrimination in selections to occur[,]” but presents no facts indicating that he himself applied for a position for purposes of supporting a timely filed administrative complaint. Id. at 3. He alleges that he has been denied “significant training details” or other experience-building opportunities but does not identify any specific training or professional opportunities which he sought but which were denied, for purposes of establishing a timely filed administrative complaint. Id. at 2. He claims that he has been the “victim of arbitrary Library of Congress disciplinary procedures that punishes blacks more severely than whites” alleging that he “has been falsely accused of being AWOL from meetings,. . .subjected to oral warnings, and threatened with removal for situations that would not prompt the same reaction for whites.” Id. However, he provides no facts indicating that these events serve or can serve as the bases for a timely filed administrative complaint. Id. at 2. He alleges that being classified as a non-professional limits his professional opportunities but does not allege that he sought reclassification of his position and was denied reclassification, i.e., he does not state facts indicating that this occurrence serves or can serve as the basis for a timely filed administrative complaint. Id. at 2 and 3. Nor does he identify which Library classification policy or practice is at issue, and how the policy or practice adversely affected him in a discriminatory manner. Further, he points to his high school diploma, college courses, years of experience as a human resources professional, and training by the Library as the grounds for his belief that his position should be reclassified. Id. at 8. Yet, he does not identify why these factors are determinative for purposes of reclassification, and thus, the Library’s failure to reclassify his position suggests a discriminatory policy or practice. He
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alleges that, “as a non-professional union member[,]” he is not allowed a telework arrangement but, for purpose of establishing a timely filed administrative complaint, does not describe the Library’s telework policy, and presents no facts or other evidence indicating that he sought but was denied telework or made efforts to have the telework policy changed, and did so within the 60 days prior to the filing of the administrative complaint. Id. at 3. He also fails to describe the Library’s telework policy and identify how the Library’s telework policy adversely affects African Americans compared with other employees. He was not able to identify any policies or practices showing that Defendant “pays minority employees less than Caucasian employees for the same work,” id. at 4-5, grooms Caucasian employees for advancement, fails to promote qualified minorities to higher positions, id. at 5, assigns lesser job classifications or wage grades to minority employees as compared to Caucasian employees, id. at 5-6, and makes less desirable work assignments to minority employees than to Caucasian employees, id. at 6. He was also unable to describe any two-tiered classification system used by Defendant for purposes of promotion. Id. at 8.
Geraldine Duncan - Plaintiff Duncan has been employed with the Library since 1971, and has been employed at her current grade level (GS-9) since 1994. R. 120-8, Pls.’ Supplementary Responses to Def.’s First Set of Interrogatories Re. the Second Am. Compl. of Pls., at 1 (Geraldine Duncan). In the Second Amended Complaint, Duncan alleges that she is an African-American female employed by the Library of Congress, and that she has been injured by the acts and practices set forth in the Complaint. Second
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Am. Class Action Compl. ¶ 6.c. However, in the Second Amended Complaint, she does not identify any specific acts which can serve as bases for a timely filed administrative complaint for purposes of this suit (i.e., identifying an alleged wrongdoing directed at her personally of which she complained within 60 days of the filing of the May 2004 administrative complaint). Id. Similarly, her discovery responses describe no specific act or event which could serve as the basis for a timely filed administrative claim. Duncan alleges that she has applied for over 30 positions, but presents no information on this allegation – nothing about the specific positions for which she applied, whether she was qualified, the decision maker for the positions, and when she applied for the positions, a critical point for purposes of establishing a timely filed administrative complaint. R. 1208, Pls.’ Supplementary Responses to Def.’s First Set of Interrogatories Re. the Second Am. Compl. of Pls, at 1 (Geraldine Duncan). She alleges that she is adversely affected by the AVUE system which asks applicants to identify by race, and alleges that there have been discrepancies and confusion regarding the role of AVUE but, again, provides no information on any position for which she applied (and was denied) and which can serve as the basis of a timely filed administrative complaint. Id. She expresses concern about “certain non-competitive positions that are secretive and tend to benefit whites,” but presents no facts on this matter – nothing whatsoever on the specific positions at issue, whether she herself was qualified for the positions, and for purposes of establishing a timely filed administrative complaint, the time frame in which these positions were filled. Id. at 2. She alleges that she has been given sporadic performance evaluations but provides no facts on this allegation which can serve as the basis for a timely filed
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administrative complaint. Id. at 2. In fact, she states that when she does receive evaluations, they are always “outstanding.” Id. She alleges that she has been denied training details and other experience-building opportunities but presents no information on this allegation – i.e., any specific training or professional opportunities which she sought but which were denied, the decision maker, and for purposes of establishing a timely filed administrative complaint, the time frame in which she sought the training. Id. at 2. She alleges that blacks are more likely than whites to be downgraded, suspended or terminated from positions, but does not allege that she has been subjected to any discipline which could serve as the basis of a timely filed administrative complaint. Id. at 2 and 3. She alleges that, “as a non-professional union member[,] she is not allowed a telework arrangement. Id. at 2. However, for purposes of a timely filed administrative complaint, she fails to describe the telework policy at issue, and presents no facts or other evidence indicating that she sought but was denied telework or made efforts to have the policy on teleworking changed and did so within the 60 days prior to the filing of the May 2004 administrative complaint. Id. at 2 and 4. She also fails to describe the Library’s telework policy and to identify how this policy adversely affects African Americans compared with other employees. She was not able to identify any policies or practices showing that Defendant “pays minority employees less than Caucasian employees for the same work,” id. at 5, grooms Caucasian employees for advancement, fails to promote qualified minorities to higher positions, id. at 5-6, assigns lesser job classifications or wage grades to minority employees as compared to Caucasian employees, id. at 6, and makes less desirable work assignments to minority employees than to Caucasian
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employees, id. at 6. She was also unable to describe any two-tiered classification system used by Defendant for purposes of promotion. Id. at 8.
David Hubbard - Plaintiff David Hubbard has been employed with the Library of Congress since 1981. R. 120-4, Pls.’ Supplementary Responses to Def.’s First Set of Interrogatories Re. the Second Am. Compl. of Pls., at 1 (David Hubbard). In January 2009, he was promoted to a GS-9 Problem Resolution Specialist. Id. In the Second Amended Complaint, Hubbard alleges that as an African-American male employed by the Library of Congress, he has been injured by the acts and practices set forth in the Complaint. Second Am. Class Action Compl. ¶ 6.d. However, in the Second Amended Complaint, he does not identify any specific act serving as a basis for a timely filed administrative complaint for purposes of this suit (i.e., identifying an alleged wrongdoing directed at him personally of which he complained within 60 days of the filing of the May 2004 administrative complaint). Id. Similarly, his discovery responses describe no specific act or event which could serve as the basis at a timely filed administrative claim. He alleges that he is adversely affected by the AVUE system which asks applicants to identify by race. R. 120-4, Pls.’ Supplementary Responses to Def.’s First Set of Interrogatories Re. the Second Am. Compl. of Pls., at 1 and 3 (David Hubbard). However, he does not identify any position for which he applied and which can serve as the basis of a timely filed administrative complaint. He alleges that he was given sporadic performance evaluations but does not provide additional facts on this allegation which can serve as the basis for a timely filed administrative complaint. Id. at 2 and 3. In
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fact, he states that when he receives evaluations, they are “excellent.” Id. He alleges that he has been denied training details or other experience-building opportunities but provides no information on this allegation – for example, he does not identify the specific training or professional opportunities sought, the decisionmakers, the reasons given for denial of the training requests, and for purposes of a timely filed administrative complaint, when he sought the training. Id. at 2 and 3. He alleges that blacks are more likely than whites to be downgraded, suspended or terminated from positions, but does not allege that he has been subjected to any discipline which could serve as the basis of a timely filed administrative complaint. Id. at 2 and 3. He alleges that, as a nonprofessional, he is denied the opportunity for rapid career advancement and is not allowed to telework. Id. However, for purposes of a timely filed administrative complaint, he does not describe the Library’s telework policy, and presents no facts or other evidence indicating that he sought but was denied telework or made efforts to have the policy on teleworking changed and did so within the 60 day period prior to the filing of the administrative complaint. Id. He also fails to identify how the Library’s telework policy adversely affects African Americans compared with other employees. He was not able to identify any policies or practices showing that Defendant “pays minority employees less than Caucasian employees for the same work,” id. at 4-5, grooms Caucasian employees for advancement, id., fails to promote qualified minorities to higher positions, id. at 5, assigns lesser job classifications or wage grades to minority employees as compared to Caucasian employees, id., and makes less desirable work assignments to minority
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employees than to Caucasian employees, id. at 6. He was also unable to describe any two-tiered classification system used by Defendant for purposes of promotion. Id. at 8.
Priscilla Ijeomah-Mills - Plaintiff Ijeomah-Mills has been employed with the Library since 1987. R. 120-5, Pls.’ Supplementary Responses to Def.’s First Set of Interrogatories Re. the Second Am. Compl. of Pls., at 1. (Priscilla Ijeomah-Mills). She is currently working as a Senior Circulation Technician. Id. In the Second Amended Complaint, Ijeomah-Mills alleges that she is an African-American female employed by the Library of Congress, and that she has been injured by the acts and practices set forth in the Complaint. Second Am. Class Action Compl. ¶ 6.e. However, in the Second Amended Complaint, she does not identify any specific act serving as the basis for a timely filed administrative complaint for purposes of this suit (i.e., identifying an alleged wrongdoing directed at her personally of which she complained within 60 days of the filing of the May 2004 administrative complaint). Id. Similarly, her discovery responses describe no specific acts or events which could serve as the bases for a timely filed administrative complaint. Ijeomah-Mills alleges that she has been denied promotions but provides no information on this allegation – nothing whatsoever on any promotions sought and why the promotions were denied, whether she was determined qualified for promotion, the decision maker, and for purposes of establishing a timely filed administrative complaint, the time frame when she sought the promotion. R. 120-5, Pls.’ Supplementary Responses to Def.’s First Set of Interrogatories Re. the Second Am. Compl. of Pls, at 1 and 4. (Priscilla Ijeomah-Mills). She alleges that being classified as a
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non-professional limits her professional opportunities but does not allege that she sought reclassification of her position and was denied reclassification within the 60 day period required for establishing a timely filed claim. Id. at 5. Nor does she identify which Library classification policy or practice is at issue, and how the policy or practice adversely affected her in a discriminatory manner. Further, she points to her years of experience at the Library and her belief that she has performed her work in a professional manner as the grounds for her view that her position should be reclassified. Id. at 8. Yet, she does not identify why these factors are determinative for purposes of reclassification, and thus, the Library’s failure to reclassify her position suggests a discriminatory policy or practice. She alleges that she has been denied “significant training details” or other experience-building opportunities but provides no additional information on this allegation – nothing whatsoever on the training sought, the reasons for the denials, the decision makers, and for purposes of establishing a timely filed administrative complaint, the time frame when she sought the training. Id. at 3. She alleges that blacks are more likely than whites to be downgraded, suspended or terminated from positions, but does not allege that she has been subjected to any discipline which could serve as the basis of a timely filed administrative complaint. Id. at 3. She avers that her performance appraisals were sporadic but does not plead or otherwise aver that the appraisals were negative or that she challenged the appraisal within the 60 day period required for establishing a timely filed administrative complaint. She was not able to identify any policies or practices showing that Defendant “pays minority employees less than Caucasian employees for the same work,” id. at 5, grooms Caucasian employees for advancement,
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id., fails to promote qualified minorities to higher positions, assigns lesser job classifications or wage grades to minority employees as compared to Caucasian employees, id. at 5-6, and makes less desirable work assignments to minority employees than to Caucasian employees, id. at 6-7. She was also unable to describe any two-tiered classification system used by Defendant for purposes of promotion. Id. at 8.
Clifton Knight - Plaintiff Knight has been employed by the Library of Congress since 1981, and has worked at the GS-9 level since 1992. R. 120-3, Pls.’ Supplementary Responses to Def.’s First Set of Interrogatories Re. the Second Am. Compl. of Pls., at 1. (Clifton Knight). He works in a professional position. Id. He has applied for over 150 positions, 122 since 2001. Id. In the Second Amended Complaint, plaintiff Knight alleges that he is an African-American male who has been injured by the acts and practices set forth in the Complaint. Second Am. Class Action Compl. ¶ 6.f. However, in the Second Amended Complaint, he does not identify any specific act serving as a basis for a timely filed administrative complaint for purposes of this suit (i.e., identifying an alleged wrongdoing directed at him personally of which he complained within 60 days of the filing of the administrative complaint). Id. He alleges that he is adversely affected by AVUE and expresses concern about “certain non-competitive positions that are secretive and tend to benefit whites,” but presents no facts on this allegation as applies to him – nothing whatsoever on the positions at issue, whether he himself was qualified for the positions, the decision makers, the selectees for the positions, and for purposes of a timely filed administrative complaint, the time frame at issue. R. 120-3, Pls.’
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Supplementary Responses to Def.’s First Set of Interrogatories Re. the Second Am. Compl. of Pls., at 2. (Clifton Knight). He alleges that he was given sporadic performance evaluations but does not provide additional facts on this allegation which can serve or serve as the basis for a timely filed administrative complaint. Id. at 2. In fact, he states that when he does receive evaluations, they are “no less than satisfactory and generally have been either excellent, commendable, or outstanding.” Id. He alleges that he has been denied training details or other experience-building opportunities but provides no information on this allegation – nothing whatsoever on the training requested, the reasons for the denial, the decision makers, and for purposes of establishing a timely filed administrative complaint, the time frame in which he sought the training. Id. at 2. He does mention that his managers arbitrarily decided not to extend an administrative detail, but this occurred in 1988, well before the administrative complaint was filed in this case. Id. at 2. He alleges that blacks are more likely than whites to be downgraded, suspended or terminated from positions, but does not allege that he has been subjected to discipline. Id. at 2. He alleges that, in his former position as a non-professional, he was denied the opportunity for rapid career advancement and was not allowed to telework. Id. at 3. As a current professional though, he does not allege any injury related to the Library’s telework policy. Id. He also fails to identify how the Library’s telework policy adversely affects African Americans compared with other employees. He was not able to identify any policies or practices showing that Defendant “pays minority employees less than Caucasian employees for the same work,” id. at 6, grooms Caucasian employees for advancement, id., fails to promote qualified minorities
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to higher positions, id. at 7, assigns lesser job classifications or wage grades to minority employees as compared to Caucasian employees, id., and makes less desirable work assignments to minority employees than to Caucasian employees, id. at 7-8. He was also unable to describe any two-tiered classification system used by Defendant for purposes of promotion. Id. at 10.
Charles Mwalimu - Plaintiff Mwalimu is no longer employed by the Library of Congress. R. 120-7, Pls.’ Supplementary Responses to Def.’s First Set of Interrogatories Re. the Second Am. Compl. of Pls., at 1. (Charles Mwalimu). He was hired by the Library in 1982, and at the time of his departure, was a GS-15 Senior Legal Specialist in the Eastern Law Division of the Law Library. Id. at 1. In the Second Amended Complaint, Mwalimu alleges that as an African-American male employed by the Library of Congress, he has been injured by the acts and practices set forth in the Complaint. Second Am. Class Action Compl. ¶ 6.g. However, in the Second Amended Complaint, he does not identify any specific act serving as the basis for a timely filed administrative complaint for purposes of this suit (i.e., identifying an alleged wrongdoing directed at him personally of which he complained within 60 days of the filing of the May 2004 administrative complaint). Id. Similarly, his discovery responses describe no specific acts or events which can serve as the bases for a timely filed administrative complaint. He alleges that he has been adversely affected by AVUE and that discrimination prevented him from being promoted to positions including the Chief of the Eastern Division for which he applied but he does not plead or otherwise allege that this act serves or can serve as a
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basis for a timely filed administrative complaint for purposes of this suit. R. 120-7, Pls.’ Supplementary Responses to Def.’s First Set of Interrogatories Re. the Second Am. Compl. of Pls., at 1. (Charles Mwalimu). He alleges that he has been “targeted, reprimanded, suspended and otherwise treated in an unfair manner,” but does not identify any specific occurrence which serves or can serve as the basis for a timely filed administrative complaint for purposes of this suit. Id. at 3. He was not able to identify any policies or practices showing that Defendant “pays minority employees less than Caucasian employees for the same work,” id. at 4, fails to promote qualified minority employees to higher positions, id. at 4-5, grooms Caucasian employees for advancement, assigns lesser job classifications or wage grades to minority employees as compared to Caucasian employees, id. at 6, and makes less desirable work assignments to minority employees than to Caucasian employees, id. at 5-6. He was also unable to describe any two-tiered classification system used by Defendant for purposes of promotion. See generally R. 120-7, Pls.’ Supplementary Responses to Def.’s First Set of Interrogatories Re. the Second Am. Compl. of Pls. (Charles Mwalimu).
Lawrence Perry - Plaintiff Perry has been employed with the Library since 1985, and has been employed at the GS-11 level since 1997. R. 120-9, Pls.’ Supplementary Responses to Def.’s First Set of Interrogatories Re. the Second Am. Compl. of Pls., at 1. (Lawrence Perry). In the Second Amended Complaint, Perry states that he is an African-American male employed by the Library of Congress in a professional series, and that he has been injured by the acts and practices set forth in the Complaint. Second Am. Class Action
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Compl. ¶ 6.h. However, in the Second Amended Complaint, he does not identify any specific act serving as the basis for a timely filed administrative complaint for purposes of this suit (i.e., identifying an alleged wrongdoing directed at him personally of which he complained within 60 days of the filing of the May 2004 administrative complaint). Id. Similarly, his discovery responses describe no specific acts or events which can serve as the bases for a timely filed administrative complaint. He alleges improprieties with a desk audit which he requested (i.e., documents purportedly indicating that his position should have been listed at the GS-11/12 level, not just at the GS-11 level), but presents no facts indicating that this occurrence serves or can serve as the basis for a timely filed administrative complaint. Id. He alleges that he was given sporadic performance evaluations but does not identify any specific acts related to this allegation which can serve as the basis for a timely filed administrative complaint. Id. at 2. In fact, he states that when he does receive evaluations, they are “always positive[.]” Id. He alleges that he has been denied training and other career-building opportunities but presents no information on this allegation – nothing whatsoever on the specific training sought, reasons for denial, the decision maker, and for purposes of a timely filed administrative complaint, the time frame. Id. at 3. He alleges that he is adversely affected by the AVUE system but, again, presents no information on this allegation. He does not even identify any position for which he applied (and which was denied), and which can serve as the basis for a timely filed administrative complaint. Id. at 2. He alleges that being classified as a non-professional limits his professional opportunities but does not allege that he sought reclassification or promotions which were denied and which can serve as the bases
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for a timely filed administrative complaint. Id. at 2. Nor does he identify which Library classification policy or practice is at issue, and how the policy or practice adversely affected him in a discriminatory manner. He alleges that blacks are more likely than whites to be downgraded, suspended or terminated from positions, but does not allege that he has been subjected to any discipline which could serve as the basis of a timely filed administrative complaint. Id. at 4. He alleges that, “as a non-professional union member[,] he is not allowed a telework arrangement but, for purposes of a timely filed administrative complaint, fails to describe the Library’s telework policy and presents no facts or other evidence indicating that he sought but was denied telework or made efforts to have the policy on teleworking changed within the 60 day period prior to the filing of the administrative complaint. Id. at 3. He also fails to identify how the Library’s telework policy adversely affects African American employees compared with other employees. He was not able to identify any policies or practices showing that Defendant “pays minority employees less than Caucasian employees for the same work,” id. at 5, fails to promote qualified minority employees to higher positions, id. at 6, grooms Caucasian employees for advancement, id., assigns lesser job classifications or wage grades to minority employees as compared to Caucasian employees, id. at 6-7, and makes less desirable work assignments to minority employees than to Caucasian employees, id. at 7. He was also unable to describe any two-tiered classification system used by Defendant for purposes of promotion. Id. at 9-10.
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Sharon Taylor - Sharon Taylor was employed by the Library as a GS-5 Copyright Clerk. R. 120-11, Pls.’ Supplementary Responses to Def.’s First Set of Interrogatories Re. the Second Am. Compl. of Pls., at 1. (Sharon Taylor). In August 2003, she learned that she would not be made a permanent Library employee. Id. She alleges that blacks are more likely than whites to be downgraded, suspended or terminated from positions, but does not allege that she has been subjected to any discipline which could serve as the basis for a timely filed administrative complaint. Id. at 2. In the Second Amended Complaint, Taylor states that she is an African-American female who was employed as a probationary employee, and who was injured by the acts and practices set forth in the Complaint. Second Am. Class Action Compl. ¶ 6.i. However, she does not identify any specific act serving as a basis for a timely filed administrative complaint for purposes of this suit (i.e., identifying an alleged wrongdoing directed at her personally of which she complained within 60 days of the filing of the May 2004 administrative complaint). Id. ¶ 6.i. Additionally, she was not able to identify any policies or practices showing that Defendant “pays minority employees less than Caucasian employees for the same work,” fails to promote qualified minority employees to higher positions, grooms Caucasian employees for advancement, assigns lesser job classifications or wage grades to minority employees as compared to Caucasian employees, and makes less desirable work assignments to minority employees than to Caucasian employees. See generally R. 12011, Pls.’ Supplementary Responses to Def.’s First Set of Interrogatories Re. the Second Am. Compl. of Pls., at 1 and 4. (Sharon Taylor). She was also unable to describe any two-tiered classification system used by Defendant for purposes of promotion. Id. at 6.
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William Rowland - Plaintiff Rowland worked at the Library from 1971 to February 2006, at which time he retired as a Senior Collections Improvement Assistant/Library Technician. R. 120-10, Pls.’ Supplementary Responses to Def.’s First Set of Interrogatories Re. the Second Am. Compl. of Pls., at 1. (William Rowland). In the Second Amended Complaint, plaintiff Rowland states that he is an African-American male who was employed in a non professional series, and who was injured by the acts and practices set forth in the Complaint. Second Am. Class Action Compl. ¶ 6.j. However, he does not identify any specific act which can serve as a basis for a timely filed administrative complaint for purposes of this suit (i.e., identifying an alleged wrongdoing directed at him personally of which he complained within 60 days of the filing of the administrative complaint). Id. ¶ 6.a. Similarly, his discovery responses describe no specific acts or events which can serve as the bases for a timely filed administrative complaint. He alleges that he was adversely affected by the AVUE system which asks applicants to identify by race, and alleges that there have been discrepancies and confusion regarding the role of AVUE. However, he presents no information on this allegation – i.e., he does not identify any position which he sought, whether he was qualified for the position, the decision makers, the selectees, and for purposes of establishing a timely filed administrative complaint, the timeframe. R. 120-10, Pls.’ Supplementary Responses to Def.’s First Set of Interrogatories Re. the Second Am. Compl. of Pls, at 1-4 and 6 (William Rowland). He alleges that he was denied “significant training details” and career building opportunities but presents no information on this allegation as well – i.e., the specific training sought, reasons for
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denial, the decision maker, and for purposes of a timely filed administrative complaint, the time frame. Id. at 2. He alleges that blacks are more likely to be downgraded, suspended or terminated from positions, but does not allege that he was subjected to discipline which could serve as the basis of a timely filed administrative complaint. Id. at 2. He alleges that being classified as a non-professional limited his professional opportunities but presents no information on this allegation. He does not even present facts indicating that he sought reclassification or promotions which were denied, and did so within the 60 day period prior to the filing of the administrative complaint. Id. at 2. He also fails to identify which Library classification policy or practice is at issue, and how the policy or practice adversely affected him in a discriminatory manner. Further, his bases for reclassification are limited to his years of experience at the Library, his education (Bachelor of Arts and Masters), and his belief that he performed his work in a professional manner. Id. at 8. Yet, he does not identify why these factors are determinative for purposes of reclassification, and thus, the Library’s failure to reclassify suggests a discriminatory policy or practice. He was not able to identify any policies or practices showing that Defendant “pays minority employees less than Caucasian employees for the same work,” id. at 5, fails to promote qualified minority employees to higher positions, id. at 5-6, grooms Caucasian employees for advancement, assigns lesser job classifications or wage grades to minority employees as compared to Caucasian employees, id. at 6, and makes less desirable work assignments to minority employees than to Caucasian employees, id. at 6-7. He was also unable to describe any two-tiered classification system used by Defendant for purposes of promotion. Id. at 8.
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B. STANDARD OF REVIEW 1. Dismissal for Lack of Subject Matter Jurisdiction (Fed.R.Civ.P. 12(b)(1)) “A motion under 12(b)(1) ‘presents a threshold challenge to the court's jurisdiction.’”
Gardner v. U.S., No. CIV. A. 96-1467EGS, 1999 WL 164412, *2 (D.D.C. Jan. 29, 1999), aff’d, 213 F.3d 735 (D.C. Cir. 2000) and cert. denied, 531 U.S. 1153 (2001), quoting, Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir.1987); see also 4 Wright & Miller: Federal Prac. & Proc. § 1350 (R12)(2002 Supplement)(“...subject matter jurisdiction deals with the power of the court to hear the plaintiff’s claims in the first place, and therefore imposes upon courts an affirmative obligation to ensure that they are acting within the scope of their jurisdictional power.”). A court may resolve a motion to dismiss brought pursuant to Fed. R. Civ. P. 12(b)(1) in two ways. First, the court may determine the motion based solely on the complaint. Herbert v. National Academy of Science, 974 F.2d 192, 197 (D.C. Cir. 1992). Alternatively, to determine the existence of jurisdiction, a court may look beyond the allegations of the complaint, consider affidavits and other extrinsic information, and ultimately weigh the conflicting evidence. See id.; see also Cureton v. United States Marshal Service, 322 F.Supp.2d 23, 2004 WL 1435124, *2 (D.D.C. June 28, 2004).
2. Motion for Failure to State a Claim (Fed.R.Civ.P. 12(b)(6)) In Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), the Supreme Court essentially abrogated or “retired” the holding in Conley v. Gibson that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Twombly, 127 S.Ct. at 19681969, quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The Supreme Court stated that
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Conley v. Gibson’s “‘no set of facts’ language can be read in isolation as saying that any statement revealing the theory of the claim will suffice unless its factual impossibility may be shown from the face of the pleadings. . .” Twombly, 127 S.Ct. at 1968. The Supreme Court added that the “[no set of facts] phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Id. at 1969.
Accordingly, as clarified by Twombly, a motion to dismiss brought pursuant to Fed. R. Civ. P. 12(b)(6) should be granted if the plaintiff, in his or her pleading, fails to present “enough facts to state a claim to relief that is plausible on its face.” Twombly, 127 S.Ct. at 1974. “Factual allegations must be enough to raise a right to relief above the speculative level,. . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact). . .” Id. at 1265 (citations omitted); accord Ashcroft v. Iqbal, 129 S.Ct. 1937, 1951-1952 (2009)(allegations that senior Government officials condoned the arrest and detention of thousands of Arab Muslim men following the September 11 attacks failed to establish even a “plausible inference” of unlawful discrimination sufficient to survive a motion to dismiss.)
3. Summary Judgment (Fed. R. Civ. P. 56) Summary judgment under Fed. R. Civ. P. 56(c)(2) is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). A genuine issue is one that could change the outcome of the litigation. See Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 243 (1986). While all evidence and the inferences drawn therefrom must be considered in the light most favorable to the nonmoving
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party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), the nonmoving party - when faced with a summary judgment motion - has the burden of establishing more than the "mere existence of a scintilla of evidence" demonstrating a genuine issue in dispute for purposes of defeating the moving party’s motion. See Lester v. Natsios, 290 F.Supp.2d 11, 19-20 (D.D.C. 2003), citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 255. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-250. As the Supreme Court has stated, "[o]ne of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses." Celotex Corp. v. Catrett, 477 U.S 317, 323-324 (1986). C. ARGUMENT
1. Plaintiffs Failed to Satisfy the Prerequisites to Suit Under Title VII. The doctrine requiring exhaustion of administrative remedies and the principle of standing converge to establish certain predicates to a claim of discrimination under Title VII. Although these predicates are straightforward, Plaintiffs fail to satisfy them. Accordingly, as explained below, Plaintiffs’ suit should be dismissed.
a. Absence of a Timely-Filed Actionable Claim The provision of Title VII that applies to federal government employees provides, in pertinent part, that “[a]ll personnel actions affecting employees. . .shall be made free from any discrimination based on race, color, religion, sex or national origin.” 42 U.S.C. § 2000e-16(a). The extension of the coverage of Title VII to federal employees removed the bar of sovereign immunity to federal employee discrimination suits. Brown v. General Servs. Admin., 425 U.S. 820, 833 (1976). However, the waiver of sovereign immunity was limited; while Title VII
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created a right to file a civil action for federal employees, “[a]ttached to that right. . .are certain preconditions.” Id. at 832. Those conditions, the Supreme Court has held, established “rigorous exhaustion requirements and time limitations.” Id. at 833. “The principal exhaustion requirement is that the complainant must initially seek relief in the agency which has allegedly discriminated against him.” Siegel v. Kreps, 654 F.2d 773, 776-77 (D.C. Cir. 1981). “Exhaustion of administrative remedies has generally been regarded as a prerequisite to the maintenance of a federal employee’s Title VII discrimination suit, and absent special circumstances, failure to exhaust calls for dismissal of the action.” Id. The requirement that Title VII complainants exhaust administrative remedies as a prerequisite to suit has four pertinent components: (i) the administrative process must be initiated within a certain number of days of the alleged discriminatory occurrence to which it relates, here, 60 days2, (ii) a formal administrative complaint must thereafter be filed, see, e.g., Ex. 1, LCR 2010-3.1, sec. 12, (iii) the employee must file a civil action in district court within 90 days of receiving a final agency decision (or file a civil action 180 days after filing the administrative complaint with the Assistant Chief, EEOCO, if there has been no decision on the complaint), see, e.g., Ex. 2, LCR 2010-3.2, sec. 17.A, and (iv) each claim raised in federal court must have been previously advanced in the EEO administrative complaint, Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995). Further, the mere assertion of a class action in court does not relieve any plaintiff from the requirement of exhausting administrative class action remedies if such plaintiff is to be a class representative in the absence of a co-plaintiff who has exhausted class action remedies.
2Keeping in mind however as further explained below that the alleged wrongful action must be materially adverse. Douglas v. Pierce, 707 F. Supp. 567 (D.D.C. 1988), aff'd, 906 F.2d 783 (1990); Mitchell v. Baldrige, 759 F.2d 80, 84 (D.C. Cir. 1985).
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“[T]he class action process” in a Title VII action is not “a tag team form of litigation.” Thomas
v. Reno, 943 F.Supp. 41, 43 (D.D.C. 1996), aff’d, 159 F.3d 637 (D.C. Cir. 1997).
As a threshold matter, none of the Plaintiffs in this suit have identified any adverse
personnel action personally affecting them and occurring within the pertinent 60-day period prior
to the filing of the administrative complaint. See generally, Def.’s Statement of Facts Not In
Dispute (attached hereto).3 For example, they have not identified any position or training sought
by them but denied by the Library in violation of Title VII4, or any discipline taken against them.
3For purposes of jurisdictional arguments made pursuant to Fed. R. Civ. P. 12(b)(1), a statement of material facts to which there is no genuine dispute is not required. LCvR 7(h). For purposes of his arguments not made pursuant to Fed. R. Civ. P. 56 and for which the record is cited, Defendant is referring to his statement of facts for ease of reference.
4As indicated supra, Plaintiff Clifton Knight averred that he has applied for 122 positions since 2001. R. 120-3, Pls.’ Supplementary Responses to Def.’s First Set of Interrogatories Re. the Second Am. Compl. of Pls., at 1. However, he fails to identify which are timely and which, for purposes of the class claims, serve as bases for the class allegation related to discriminatory practices and policies in promotions and selections. Further, as the sole plaintiff who may have applied for a position within the 60 day period preceding the filing of the administrative complaint, he still has not fully exhausted for purposes of the Plaintiffs’ class claims related to promotions and selections if fully exhausting means that he himself must meet all the elements of exhaustion including filing a civil action within 90 days of receipt of the final agency decision.
This Court has stated that "[e]ach plaintiff in a Title VII class action. . .need not file an EEOC charge so long as one member of the class has met the filing prerequisite." Marable v. District Hosp. Partners, L.P., Civil Action No. 01-02361(HHK), 2008 WL 5501106, *2 (D.D.C. Dec. 1, 2008). For purposes of exhaustion, this Court has stated that Title VII precludes an employee from initiating a civil suit without "first filing an administrative charge and obtaining a right to sue letter." Id., *3 n.4. Additionally, to proceed with the claims in U.S. District Court, the employee must bring a civil action within 90 days of receipt of the right to sue letter. 42 U.S.C. § 2000e-5(f).
Here, none of the administrative class agents, Christine Mills, Amy Barnes, and Priscilla Ijeomah have identified any positions for which they applied 60 days prior to bringing their administrative complaint in May 2004, see R. 1-1. Nor did the other named Plaintiffs identified in the December 2004 original complaint exhaust because they also failed to identify any positions for which they applied within the requisite period (i.e., 60 days) before the filing of the administrative complaint. These include Runako Balondemu, Amy Barnes, Arnice Cook, Robert
(continued...)
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Id. ¶¶ 1-4, and 8. Plaintiffs have also failed to identify how any Library practice or policy
materially affected them within the prescribed filing period. Id. ¶¶ 1-16; Pls.’ Second Am. Class
Action Compl. ¶¶ 6, 11, and 15-24. In the absence of identifying such events, Plaintiffs’ claims
must be dismissed for lack of jurisdiction or failure to state a claim upon which relief may be
granted.
b. No Standing to Maintain Suit
Two of the principle prongs of the constitutional case or controversy provisions require,
inter alia, that (i) a plaintiff establish personal injury, and (ii) that injury be redressable by
judicial relief. A plaintiff has the burden of pleading facts sufficient to establish standing based
upon a personal injury: “The litigant must clearly and specifically set forth facts sufficient to
satisfy the [] Art. III standing requirements. A federal court is powerless to create its own
4(...continued) Cooper, Michael Durrah II, Geraldine Duncan, Priscilla Ijeomah, Lawrence Perry, William Rowland, and Mark A. Wilson. See R. 1, Class Action Compl. This leaves Clifton Knight as the remaining named plaintiff. However, he cannot cure the deficiency with exhaustion if, consistent with the Library’s regulation, he as a named plaintiff was required to file in U.S. District Court within the requisite 90 day period from receiving the final agency decision, see LCR 2010-3.2, sec. 17. See also Leighton v. Gonzales, Civil Action No. 05-01835(HHK), 2007 WL 625876, *2 (D.D.C. February 26, 2007)(Explaining that although “[t]he requirement that a suit be initiated within ninety days of receiving a final agency decision operates as a statute of limitations rather than as a jurisdictional bar,” absent demonstration by plaintiff that the equitable doctrine of waiver, estoppel, or tolling, applies, “the court cannot extend the limitations period by even one day.”)(citation and internal quotation marks omitted). Mr. Knight was not a party to the original complaint filed in December 2004, but instead, was added as a plaintiff in the First Amended Complaint filed December 11, 2006 (R. 24), well after the 90 day period to file in District Court. Looking at the exhaustion requirements solely on the basis of Mr. Knight, he too has failed to exhaust. See, e.g. Stubbs v. McDonald’s Corp., 224 F.R.D. 678, 674-75 (D.Kan. 2004)(Court found that the plaintiff was not an adequate class representative because he failed to exhaust on certain claims.) However, assuming arguendo that he had exhausted, Plaintiffs’ pattern and practice claim based on the Library’s promotion and selection determinations should still be dismissed under the doctrine of policies or collateral estoppel as explained below.
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jurisdiction by embellishing otherwise deficient allegations of standing.” Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)(citations omitted); see also Kurtz v. Baker, 829 F.2d 1133, 1138-39 (D.C. Cir. 1987)(The Court “must police its jurisdiction” by examin[ing] each of the [plaintiff’s] alleged injuries for compliance with the requirement that they be personal and concrete.”)
Plaintiffs in this case should be dismissed from this action because they failed to satisfy standing requirements. Specifically, they have identified no personal injury. As explained by the Supreme Court in Whitmore v. Arkansas,
To establish an Art. III case or controversy, a litigant first must clearly demonstrate that he has suffered an “injury in fact.” That injury, we emphasized repeatedly, must be concrete in both a qualitative and temporal sense. The complainant must allege an injury to himself that is “distinct and palpable,”. . .as opposed to merely “[a]bstract,”. . .and the alleged harm must be actual or imminent, not “conjectural” or “hypothetical.”. . .Further, the litigant must satisfy the “causation” and “redressability” prongs of the Art. III minima by showing that the injury “fairly can be traced to the challenged action” and “is likely to be redressed by a favorable decision.” 495 U.S. at 155 (internal citations omitted). Plaintiffs have not established injury in fact. They have not, for example, identified any specific promotion, work assignments or opportunities, or training denied for purposes of standing. Pls.’ Second Am. Class Action Compl. ¶¶ 6, 11 and 15-24; Def.’s Statement of Facts Not In Dispute, ¶¶ 1-15. They have also failed to identify any specific injury as to their performance appraisals. Indeed, when mentioned, they concede that their appraisals have been favorable. Id.¶ 15. Further, as detailed above, no plaintiff was able to identify and describe, in a manner showing specific injury to them, any policies or practices reflecting that Defendant “pays minority employees less than Caucasian employees for the same work,” grooms Caucasian employees for advancement, fails to promote qualified minorities to higher positions, assigns
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lesser job classifications or wage grades to minority employees as compared to Caucasian employees, and makes less desirable work assignments to minority employees than to Caucasian employees. Id. ¶¶ 10-14. And none were able to describe the two-tiered classification system used by the Library for purposes of promotion, and any specific injury to them from the Library’s use of this system. Id. ¶ 15. Plaintiffs thus fail the personal injury prong of the standing requirements, i.e., they have not alleged an injury that is personal or concrete. See, e.g. Hartman v. Duffey, 19 F.3d 1459, 1471 (D.C. Cir. 1994)(“Normally, an employee who was not aggrieved by a. . .particular hiring requirement lacks standing to challenge that. . .requirement.’); Coe v. Yellow Freight System, Inc., 646 F.2d 444, 451 (10th Cir.1981)(“It is not sufficient for an individual plaintiff to show that the employer followed a discriminatory policy without also showing that plaintiff himself was injured.”); Melendez v. Illinois Bell Tel. Co., 79 F.3d 661, 668 (7th Cir.1996) (“In order for an individual plaintiff to have constitutional standing to bring a Title VII action, he must show that he was personally injured by the defendant's alleged discrimination and that his injury will likely be redressed by the requested relief.”)(emphasis added); Stubbs v. McDonald's Corp., 224 F.R.D. at 674, citing, Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395, 403 (1977)(“To have standing to sue on a class's behalf, the plaintiff must be an adequate class representative. The plaintiff must be a part of the class and ‘possess the same interest and suffer the same injury’ as class members.”)(citation omitted); Lander v. Montgomery County Bd. of Com'rs, 159 F.Supp.2d 1044, 1058 (S.D.Ohio 2001), citing, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61(1992)(In order to have constitutional standing to bring a Title VII action, [employee] must show that he [or she] personally was injured by the [employers’] alleged discrimination and that his injury likely will be redressed by the relief sought.”)
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Further, Plaintiffs’ general allegations related to alleged discriminatory policies and practices are insufficient to maintain standing absent injury. See, e.g., Def.’s Statement of Facts Not In Dispute, ¶¶ 9-15. Title VII is the exclusive remedy for employment discrimination claims raised by federal employees, see Brown v. General Servs. Admin., 425 U.S. 820, 835 (1976), but Title VII does not confer a freestanding right upon employees to challenge their employers' allegedly discriminatory policies without making some showing that the policy at issue specifically affected them. Basic principles of standing remain applicable in this context, and courts have thus rejected attempts to challenge race-conscious policies absent some showing that the claimant was actually affected by the policy at issue. See Los Angeles v. Lyons, 461 U.S. 95, 101 (1983)(abstract injury is not enough for purposes of standing); Whalen v. Rubin, 91 F.3d 1041, 1045 (7th Cir. 996)(discussing hypothetical employees who could not challenge their employers' clearly discriminatory policies); Wooden v. Board of Regents of the Univ. System of Georgia, 247 F.3d 1262, 1282-83 (11th Cir. 2001) (holding that plaintiff who was eliminated from consideration prior to the stage where race was considered lacked standing to sue); see also Phillips v. Cohen, 400 F.3d 388, 397 (6th Cir. 2005)(To have standing in a disparate impact case under Title VII, a plaintiff must “demonstrate either that he or she was denied an employment opportunity because of a practice prohibited by statute; or that he or she was qualified for the opportunity sought and was denied it and therefore, by inference, was subjected to discrimination.”)(citation omitted). Having failed to identify any injury redressable under Title VII, Plaintiffs’ suit must be dismissed in its entirety.5
5Mr. Rowland also fails the redressability prong of the standing requirement. Mr. Rowland has been retired from the Library since 2006. He therefore is not and will not be
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2. Plaintiffs’ Claims Based on the Library’s Promotion and Recruitment Procedures Are Barred By Res Judicata and/or Collateral Estoppel.
It is no surprise if this case has the specter of deja vu. Plaintiffs are essentially bringing, or attempting to bring, what can be fairly characterized as Cook II. Both suits involve the same primary claim – specifically, a challenge to the Library’s promotion and recruitment procedures. In Cook, the plaintiffs brought suit on behalf of themselves and all past, present and future black employees and applicants for employment. Ex. 3, Cook Compl., p. 12. Similarly, in this suit, Plaintiffs, all African American employees, bring suit on behalf of “all minority job applicants and all past, current, and future minority employees of the Library of Congress (the proposed “Class”).” Pls.’ Second Am. Compl. ¶ 2. In Cook, the plaintiffs alleged that “minority employees are disproportionately concentrated in lower-paying positions.” Ex. 3, Cook Compl., p. 25. In this suit, Plaintiffs allege that the Library fails to promote “minority employees to higher levels.” Pls.’ Second Am. Compl. ¶ 2. In Cook, the plaintiffs alleged unequal recruitment standards. Ex. 3, Cook Compl, p. 24. In this suit, Plaintiffs alleged these same claims – i..e, challenges to the Library’s policies and practices for recruitment and promotions, including the use of AVUE. Pls.’ Second Am. Class Action Compl., ¶¶ 2.b, 2.d, 9, 11.c and 22; Def.’s Statement of Facts Not In Dispute, ¶ 3.
5(...continued) subject to any of the policies or practices of the Library that pertain to its employees. In City of Los Angeles v. Lyons, the Supreme Court held that the standing of the plaintiff “depended on whether he was likely to suffer future injury from the use of chokeholds by police officers.” 461 U.S. at 104. The Court held that the plaintiff lacked standing to seek injunctive relief because “he has made no showing that he is realistically threatened by a repetition of his experience.” Id. at 109. “The same rationale. . .would also have kept [Lyons] from bringing a suit for declaratory relief.” Fair Employment Counsel of Greater Washington v. BMC Marketing Corp., 28 F.3d 1268, 1273 (D.C. Cir. 1994). Thus, Mr. Rowland, who is no longer subject to the conduct he challenges, does not have standing to seek declaratory or injunctive relief.
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However, it is "black-letter law" that the doctrine of res judicata bars “repetitious litigation involving the same causes of action or the same issues.” I.A.M. Nat'l Pension Fund. v. Indus. Gear Mfg. Co., 723 F.2d 944, 946 (D.C.Cir.1983). Res judicata or claim preclusion is applicable when “a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Drake v. Fed. Aviation Admin., 291 F.3d 59, 66 (D.C. Cir. 2002) (citing Allen v. McCurry, 449 U.S. 90, 94 (1980)). "Res judicata concludes not only issues decided but also those which could have been raised and decided in the earlier proceeding.” National Savings & Trust Co. v. Rosendorf, 559 F.2d 837, 840 n. 26 (D.C. Cir. 1977). In this way, res judicata helps “conserve judicial resources, avoid inconsistent results, engender respect for judgments of predictable and certain effect, and [ ] prevent serial forum-shopping and piecemail litigation.” Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C.Cir.1981). Issue preclusion or collateral estoppel, on the other hand, “may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case.” Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992) (quoting Allen, 449 U.S. at 94).
Here, to the extent that Plaintiffs’ claim challenges the selection process validated in the Cook settlement agreement, such a claim on that issue would be precluded because (1) that issue was raised and contested by the parties in Cook, (2) the validity of the settlement agreement was actually and necessarily determined by the Cook court, and (3) preclusion in the instant case will not cause unfairness to either party bound by the determination. Martin v. Dep’t of Justice, 488 F.3d 446, 454 (D.C. Cir. 2007) (quoting Yamaha Corp. of Amer. v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992)). First, the validity of the procedures set forth in the settlement agreement
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was raised by the Plaintiff in Cook when they sought to modify the 1994 settlement agreement. Cook v. Billington, 2003 WL 24868169, *1. The Cook Court, with competent jurisdiction, considered the Plaintiffs’ claims that the procedures were invalid and confirmed that the procedures delineated in the settlement agreement, as approved by the Court in 1995, comported with the Uniform Guidelines. Id. at *1-2. Precluding Plaintiffs from re-litigating this issue presents no unfairness to Plaintiffs because their “incentives to litigate the point now disputed were no less present in the prior case, nor are the stakes of the present case of ‘vastly greater magnitude.’” Martin v. Dep’t of Justice, 488 F.3d at 455 (quoting Yamaha Corp. of Amer. v. United States, 961 F.2d at 254). Furthermore, Plaintiffs have no legitimate basis to argue that the “prior proceedings were seriously defective.” Martin v. Dep’t of Justice, 488 F.3d at 455 (citing Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 333, (1971)). Accordingly, Plaintiffs have previously had ample opportunity to make their arguments heard on the issue of the Library’s selection process, and they should be precluded from challenging the Library’s selection procedures in their current litigation.
3. Plaintiffs Fail to State A Cognizable Claim Under Title VII Title VII recognizes two types of discrimination claims – disparate treatment and disparate impact. To establish a prima facie case for disparate treatment, a plaintiff must show by a preponderance of the evidence (1) that he belongs to a protected group, (2) that he was qualified and applied for a position, (3) that he was rejected despite his qualifications, and (4) “that after his rejection, the position remained open and the employer continued to seek
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applicants from persons of [the plaintiff’s] qualifications.” Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 149 - 1155 (D.C. Cir. 2004).6
“Disparate treatment claims can be brought as class actions as well.” Munoz v. Orr, 200
F.3d 291, 299 (5th Cir. 2000). “Plaintiffs in a class action disparate treatment case must show a
‘pattern and practice’ of discrimination by the employer, i.e., that ‘racial discrimination was the
[employer’s] standard operating procedure-the regular rather than the ususal practice.’” Id.,
quoting, Teamsters v. United States, 431 U.S. 324, 336 (1977). However, “[p]roving isolated or
sporadic discriminatory acts by the employer is insufficient to establish a prima facie case” of
disparate treatment. Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 875-76 (1984).
Disparate impact claims “do not require intent to discriminate.” Munoz, 200 F.3d at 299,
quoting, Griggs v. Duke Power Co., 401 U.S. 424 (1971); accord Moore v. Summers, 113
F.Supp.2d 5, 19 (D.D.C. 2000). Rather, under this theory, “it is enough for [the employee] to
show that the challenged employment practices, though ‘facially neutral in their treatment of
different groups. . .in fact fall more harshly on one group than another and cannot be justified by
6In Teneyck, the District of Columbia Circuit noted that, given the Supreme Court’s emphasis in McDonnell Douglas v. Green, 411 U.S. 792 (1973), that the prima facie case is not intended to be “rigid, mechanized, or ritualistic,” the District of Columbia Circuit in Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002), articulated an alternative formulation of the Title VII prima facie case, i.e, a plaintiff to establish such must demonstrate that (1) he was a member of a protected group, (2) an adverse employment action took place, and (3) the unfavorable action gives rise to an inference of discrimination. Teneyck, 365 F.3d at 1150. The District of Columbia Circuit explained that this “alternative formulation is designed to accommodate the wide variety of employment discrimination claims that extend beyond the typical ‘failure-to-hire’ situations of the sort confronted in McDonnell Douglas.” Id. However, relevant for this case, in Teneyck, the District of Columbia Circuit stressed that “McDonnell Douglas’s formulation of the required elements of a prima facie case remains the standard in typical failure-to-hire cases.” Id., citing, Morgan v. Fed. Home Loan Mortgage Corp., 328 F.3d 647, 650 (D.C. Cir. 2003), cert. denied, 540 U.S. 881 (2003).
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business necessity.’” Id, quoting, Teamsters, 431 U.S. 335 n. 15. An employee “must identify specific practices as being responsible for any observed disparities, . . .and must conduct a systemic analysis of those employment practices in order to establish their case.” Munoz, 200 F.3d at 299 (citation omitted)(emphasis added).
a. Plaintiffs’ Failure to Establish a Prima Facie Case of Discrimination on Their Promotion/Failure to Hire Claims
In this suit, Plaintiffs have pled disparate treatment and impact claims. Pls.’ Second Am. Class Action Compl., ¶¶ 4 and 28. Under either theory, however, Plaintiffs’ claims based on failure to promote/hire must be dismissed. Plaintiffs’ disparate treatment claims fail because, as detailed above, none of the Plaintiffs, with the exception of Knight, applied for a position prior to the sixty day period before filing their administrative complaint. See, Def.’s Statement of Facts Not In Dispute, ¶¶ 1-3. And even Knight fails to identify which positions can and do serve as the basis for a timely filed administrative claim. See generally R. 120-3, Pls.’ Supplementary Responses to Def.’s First Set of Interrogatories Re. the Second Am. Compl. of Pls. (Knight). Accordingly, having not sought any positions for purposes of a timely-filed administrative complaint (or in the case of Knight, identified such positions), the Plaintiffs’ disparate treatment class claims based on or the Library’s promotion and selection procedures and policies must be dismissed for failure to state a claim upon which relief may be granted. See, e.g. Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 159 -160 (2d Cir. 2001), quoting, Teamsters, 431 U.S. at 362 (“a class member at the remedial stage of a pattern-or-practice claim [must] show that he or she suffered an adverse employment decision ‘and therefore was a potential victim of the proved [class-wide] discrimination.’”); Housley v. Boeing Co., 177 F.Supp.2d 1209,
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1222 (D.Kan. 2001)(“In the failure-to-promote and failure-to-hire context, every Circuit that has addressed this issue has required a plaintiff, as part of that plaintiff's prima facie case, to come forward with evidence of a specific vacant position for which the plaintiff was qualified and on which the plaintiff's claim is based.”); McKnight v. Graphic Controls Corp., No. 98-CV0662E(H), 2000 WL 1887824, *6 (W.D.N.Y. 2000) (Court noted that the plaintiff had failed to “reveal[] the existence of any position for which he had, or would have, applied and was, or expected to be, subsequently rejected.” The Court added that “because [the] plaintiff ha[d] not revealed the existence of any position for which he had, or would have, applied, it [was] impossible for [the] Court to ascertain whether he would have been qualified for such position and whether he suffered an adverse employment decision in the form of a rejection.” The Court thus concluded that the plaintiff had “not met his burden of establishing an inference of impermissible discrimination with respect to his claim of failure to promote.”).
Plaintiff’s disparate impact claims must also fail. Plaintiffs have not identified and described any specific Library practices or policies responsible for any purported disparities disadvantaging African Americans in promotion and selection determinations. Accordingly, Plaintiffs’ disparate impact claims based on the Library’s promotion and selection policies and practices must be dismissed. Munoz, 299 F.3d at 299; see also Prince v. Rice, 453 F.Supp.2d 14, 27 (D.D.C. 2006)(In dismissing the plaintiff’s disparate impact claim, the Court stated, “not even the most generous reading of [the plaintiff’s] factual allegations unearths any identification of a specific employment practice that is generally applicable and facially-neutral, but has functioned disproportionately with respect to plaintiff or members of her protected class.”); O’Brien v. City of Philadelphia, 837 F.Supp. 692, 698 (E.D.Pa. 1993)(“To make out a prima facie case on
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[disparate] impact, a plaintiff must first demonstrate that it is the application of a specific or particular employment practice that has created the disparate impact under attack.”)(emphasis added).
b. Plaintiffs’ Failure to Identify A Cognizable Adverse Action Regarding Their Claims Related to Discipline, Training, Telework and Performance Evaluations
As it applies to the federal government, Title VII proscribes discriminatory “personnel actions affecting employees. . .” 42 U.S.C. § 2000e-16(a). The Supreme Court has said that, to be subject to Title VII, a personnel action is a “tangible employment action” that is “a significant change in the employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1988). To determine whether a claim relates to a tangible adverse employment action under the Supreme Court’s description, the D.C. Circuit has examined whether there is an “objectively tangible harm,” Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999), “that is adverse in an absolute sense,” id., at 458, and has an immediate effect on employment.” Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001), quoting, Mungin v. Katten, Muchin & Zavis, 116 F.3d 1549, 1555 (D.C. Cir. 1997).
None of the Plaintiffs have alleged any specific disciplinary action taken against them, nor have they alleged how they have been materially injured by their performance evaluations or denial of training or telework requests (assuming such requests were timely made for purposes of suit). See generally, Pls.’ Second Am. Class Action Compl.; Def.’s Statement of Facts Not In Dispute, ¶¶ 4, 5, 8 and 9. Indeed, to the extent that any of the Plaintiffs even bothered to provide facts (albeit, sketchy ones) as relates to their evaluations, they have stated that the evaluations
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have been positive. Id. ¶ 5. However, the District of Columbia Circuit has held that a performance evaluation, negative or otherwise, is not an adverse action absent effect on terms, conditions, or privileges of an employee's employment. Plaintiffs have presented no such effect as relates to their performance evaluations (or training, telework or disciplinary claim). Russell v. Principi, 257 F.3d 815, 819 (D.C. Cir. 2002)(negative performance evaluations are not adverse actions absent some effect on terms, conditions or privileges of employment); Dorns v. Geithner, --- F.Supp.2d ----, 2010 WL 882649 (D.D.C. March 12, 2010)(decreased performance appraisals and denial of training requests are not adverse employment actions); Manuel v. Potter, --F.Supp.2d ----, 2010 WL 565192 (D.D.C. Feb. 17, 2010)(non-receipt of training opportunities is not adverse action); Brookens v. Solis, 616 F.Supp.2d 81, 91 (D.D.C. 2009)(denials of desk audits and details do not constitute adverse employment actions for purposes of establishing a prima facie case of discrimination or retaliation.); Sewell v. Chao, 532 F.Supp.2d 126, 137 (D.D.C. 2008)(denial of training and transfer to another department do not constitute adverse employment actions); Reynolds v. Service America Corp., No. 95 C 7413, 1998 WL 30700, *11 (N.D.Ill. Jan. 21, 1998)(Receipt of negative performance evaluations alone, even if undeserved, cannot constitute an adverse employment action.); Gustovich v. AT&T Communications, Inc., 972 F.2d 845, 847 (7th Cir. 1992)(“There is nothing to complain about until a poor [performance] rating carries or directly portends a loss of job or pay.”); Hagan v. Walker, 1998 WL 830641, *3 (E.D. La. 1998)(“denial of training, non-selection for a detail and adverse performance appraisals. . .fail to amount to adverse personnel actions that Title VII was created to address.”); Smith v. ASC, Inc., 148 F.Supp.2d 302, 313 (S.D.N.Y. 2001)(concluding that “not allowing [the plaintiff] to work from home. . .[did] not constitute adverse employment action []
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as a matter of law”): Hornberg v. UPS, 2006 WL 2092457, at *9 (D. Kan. July 27, 2006)(telecommuting is a personal preference, denial of request was not an adverse employment action); Daniels v. FRB of Chi., No. 98 C 1186, 2006 WL 861969, at *12 (N.D. Ill. March 31, 2009)(refusal of request to permit telecommuting is not adverse employment action).
In Aliotta v. Blair, 576 F.Supp.2d 113 (D.D.C. 2008), a class action suit, the Court, as an initial matter, reviewed whether the alleged wrongdoing at issue was an adverse employment action “sufficient to sustain a disparate treatment or disparate impact claim.” Id. at 120. The Court then dismissed the plaintiffs’ claims concluding that the alleged wrongdoing failed to meet this standard. Plaintiffs’ claims in this suit based on performance evaluations, telework, training and discipline should be similarly dismissed – i.e, they fail to allege an adverse employment action.
4. The Cook Order Establishes the Library’s Non-Discriminatory Reason. The ultimate issue in an employment discrimination case is whether the employee has met his burden of proving that an adverse employment action was motivated at least in part by intentional discrimination. If the employee succeeds in establishing a prima facie case of discrimination, the employer then must introduce evidence of a legitimate, nondiscriminatory reason for its action. See McDonnell Douglas, 411 U.S. at 802. The burden on the employer is one of production, not persuasion - “it can involve no credibility determination.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 144 (2000), quoting, St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 509 (1993). Once it is established that both parties have met their respective burdens, the burden shifting scheme becomes irrelevant, Hicks, 509 U.S. at 510, and
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“the sole remaining issue is discrimination vel non.” Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003).
As indicated above, Plaintiffs have not established a prima facie case of discrimination for their non-promotion and recruitment claims – none have identified any position which they sought and which can serve as the basis for a timely filed administrative complaint for purposes of challenging the Library’s promotion and selection procedures. Def.’s Statement of Facts Not In Dispute, ¶¶ 2 and 3. They have thus not met the threshold requirement for a suit based on non-selection under Title VII.
Further, the Library has an irrefutable reason for using the promotion and selection procedures at issue – it was bound to do so by Court Order. Cook v. Billington, Civil Action No. 82-0400(GK)(Docket Entry No. 836, Order). The Court Order in Cook v. Billington made the parties’ Joint Report part of the record and defined the Library’s obligations as relates to the selection process. Id. Further, the Court described the Library’s selection process - the very one used by the Library during the relevant period of this suit - as a “validated” hiring process comporting with the Uniform Guidelines on Employee Selection procedures. Cook v. Billington, 2003 WL 24868169, *2. Notably, the “validated” selection process was one agreed to by both parties in Cook, Cook v. Billington, Civil Action No. 82-0400(GK)(Docket Entry No. 836, Order), and it bears reiterating that nine out of the ten Plaintiffs in this matter were part of the Cook class. The Library’s use of this Court-ordered selection process is unarguably a legitimate basis for its actions as relates to promotions and selection, and any challenge to use of this process must be rejected.
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5. Plaintiffs Cannot Satisfy the Requirements of Class Certification. Plaintiffs’ proposed class action fails for two independent reasons. First, Plaintiffs fail to propose a properly defined class whose members can be identified without an inquiry into the merits of this case. Second, the proposed class does not satisfy Rule 23 requirements – subsection (a) or subsection (b).
a. Proposed Class Not Sufficiently Defined or Ascertainable A class action must be brought on behalf of some identified, defined class. See Board of Sch. Commissioners of Indianapolis v. Jacobs, 420 U.S. 128, 130 (1975). A class action would be unworkable unless there is some administratively feasible way for the Court to determine who the members of the class are. The proposed class definition in this suit fails to meet this standard. Here, the class consists of minority employees of the Library – professional and nonprofessional as well as current, former and retired employees – who have suffered from race discrimination in terms of pensions, unfair performance appraisals, job classifications, wage grades, training, mentoring, and promotions.7 R. 28, Pls.’ Second Am. Class Action Compl. ¶¶ 11, 15-24. To determine class membership under this definition, the Court would have to resolve the merits of the case by deciding which employees have been subjected to discrimination under each one of these claim categories. See, e.g. Williams v. Glickman, No.Civ.A., 95-1149(TAF), 1997 WL 33772612, *4 (D.D.C. Feb. 14, 1997)(The Court stated that “[b]ecause [it] must
7As noted above, in their Second Amended Complaint, Plaintiffs also allege class claims based on hostile work environment and retaliation, R. 28, Pls.’ Second Am. Class Action Compl., ¶ 24, but their counsel averred at the September 17, 2009 Meet and Confer that his clients were not pursuing these claims. Defendants briefly note, however, that the arguments raised herein would apply with equal force to these claims – i.e., failure to satisfy the prerequisites to suit under Title VII and failure to satisfy the requirements of class certification.
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answer numerous fact-intensive questions [including determining whether a proposed class member was in fact subjected to discrimination] before determining if an individual may join the class, the proposed class [was] not clearly defined.”). Further, in order to determine whether an individual is a member of the class, the court would have to make a legal determination as to whether that individual is entitled to relief.
“Because the Court must answer numerous fact-intensive questions before determining if an individual may join the class, the proposed class is not clearly defined.” Id.; cf. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974)(Courts should not conduct “a preliminary inquiry into the merits” to determine whether to satisfy a class). The class definition, as presented in the Second Amended Complaint, is therefore inappropriate.
b. Plaintiffs’ Failure to Satisfy the Prerequisites for a Class Action Under Fed. R. Civ. P. 23
Individual litigants seeking to maintain a class action must meet the prerequisites of Fed. R. Civ. P. 23(a), which provides:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). Class actions “may only be certified if the trial court is satisfied, after rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 155 (1982). The named plaintiffs bear the heavy burden of establishing that the action may be maintained as a class action, id. at 161, and failure to meet any one of Rule
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23(a)’s requirements precludes certification, see, e.g., Love v. Johanns, 439 F.3d 723, 728 (D.C. Cir. 2006).
A party seeking class certification also must demonstrate that the proposed class action satisfies one of the categories set forth in Fed. R. Civ. P. 23(b). Certification under Rule 23(b) is appropriate only where (1) the prosecution of separate actions would create a risk of inconsistent adjudications and incompatible standards of conduct for the defendant, or a risk of individual adjudications that as a practical matter would be dispositive of the interests of other class members; (2) the defendant “has acted or refused to act on grounds generally applicable to the class” and injunctive or declaratory relief would therefore predominate; or (3) common issues predominate and a class action is the “superior” means to handle the litigation.
i. Fed. R. Civ. P. 23(a) In the instant matter, and as indicated above, Plaintiffs allege a broad range of unrelated employment actions that supposedly adversely affect all “minority job applicants” and “past, present and future minority employees at the Library” including, but not limited to: compensation, training, promotions, selections, wage classifications, job assignments, recruitment, disciplinary actions, and performance evaluations. See R. 28, Pls.’Second Am. Compl. at ¶¶ 2, 11, 15-22. Plaintiffs’ complaint of discrimination which refers to a litany of unrelated policies as a basis to establish a class action - is simply not cohesive or narrow enough to satisfy the commonality and typicality requirements of the Federal Rules. In fact, courts in this Circuit have repeatedly denied class certification sought by individuals alleging similarly overly broad and vague claims. See e.g., Williams v. Glickman, 1997 WL 33772612 (an overly broad proposed class with a bare allegation of a ‘common thread of discrimination’ does not satisfy the
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requirement to identify the common questions of law); Wagner v. Taylor, 836 F.2d 578, 587 (D.C. Cir. 1987) (framing problems particular to one individual as a common threat of discrimination towards African-American employees as a group does not satisfy the ‘specific presentation’ requirement to identify the questions of law or fact common to the class representative and the members of the proposed class); Sperling v. Donovan, 104 F.R.D. 4, 5 (D.D.C. 1984) (alleging across-the-board racial discrimination against a group unified solely by race (“the all white class”) is not sufficient to satisfy Rule 23 requirements).
More important, many if not all of the named Plaintiffs cannot demonstrate claims that are “typical” or “common” because, as discussed above, they cannot show that they actually suffered the supposed adverse actions that they alleged in their complaint. Specifically, a review of their interrogatory “responses” reveals that during the relevant time period as identified by the Plaintiffs in their Complaint (January 1, 2003-May 28, 2004), only one of the named Plaintiffs ever actually applied for positions at the Library; none of the named Plaintiffs were disciplined; none of the named Plaintiffs received negative performance evaluations; none of the named Plaintiffs sought and were denied training (in fact, several of the named Plaintiffs admit that they received training); and none of them were classified differently than their non-minority counterparts. See R. 120-2 to R. 120-11, Supplemental Responses to Interrogatories; Def.’s Statement of Facts Not In Dispute, ¶¶ 1-15. Therefore, considering that Plaintiffs cannot demonstrate that their claims are typical or common (or indeed, that anything adverse even happened to them), Plaintiffs cannot satisfy the requirements of Fed. R. Civ. P. 23(a)(2) and (3).8
8Plaintiffs may argue that they cannot demonstrate the certification requirements of Fed. R. Civ. P. 23(a), because the Defendant has not yet provided “applicant flow data” on the
(continued...) 53

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Further, the failure of some, if not all, of the named Plaintiffs to exhaust their
administrative remedies also precludes class certification. As noted above, Plaintiffs have failed
to identify any position or training sought by them and denied by the Library, or any discipline
directed personally against them occurring within the 60 day period prior to the filing of their
May 28, 2004 administrative complaint. They also failed to identify how any Library practice or
policy materially affected them within the prescribed filing period. Identifying the purported
adverse action is key because “[any] inquiry into the propriety of class certification [starts] with
an analysis of the claims presented by the named plaintiffs.” Harris v. Marsh, 100 F.R.D. 315,
319 (D.C.N.C. 1983). “[C]lass claims are limited by the individual claims, [East Texas Motor
Freight Systems Inc. v.] Rodriguez, 431 U.S. [395, 403 (1977)], which in turn are limited by the
8(...continued) selections that occur at the Library. Defendant respectfully urges the Court to reject this red herring and non-sensical argument. Importantly, a review of Plaintiffs’ interrogatory responses demonstrates that they have produced no evidence to satisfy any of the factors required to maintain a class action. See R. 120-2 to R. 120-11, Supplemental Responses to Interrogatories; see also Def.’s Statement of Facts Not In Dispute, ¶¶ 1-15. Furthermore, there is no basis that access to “applicant flow data” would in any way verify that the Library’s hiring system results in a disparate impact to minority applicant. This is particularly dubious because in September 2003, less than nine months before the Mills’ Plaintiffs’ filed their administrative EEO Complaint, Judge Kessler issued an order denying Plaintiffs’ in the Cook case (the identical Plaintiffs in this action) request for extension of the Court’s oversight period. In that opinion, Judge Kessler opined that the “Library’s three-stage competitive selection procedure is a “validated” hiring process and comports with the Uniform Guidelines on Employee Selection Procedures. Cook v. Billington, 2003 WL 24868169, *2. It simply does not make sense that within months after Judge Kessler’s decision - finding that the Library’s merit selection process is valid and in conformance with the Uniform Guidelines - Plaintiffs (most of whom did not even apply for any positions after Judge Kessler’s decision) could have any basis (which they are required to have under the Federal Rules before filing a complaint) that the Library’s Courtsanctioned merit process has a disparate impact on African-American applicants for employment. Plaintiffs’ filing is thus nothing more than an attempt to circumvent Judge Kessler’s prior order and resuscitate claims that were also disposed of by settlement agreement. As explained above, Plaintiffs’ attempt in this regard should be rejected on res judicata and collateral estoppel grounds.
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administrative procedures outlined in Title VII.” Id., citing, Chisholm v. United States Postal Service, 665 F.2d 482, 490 (4th Cir. 1981).” Unless class remedies have been exhausted9, the Court lacks subject matter jurisdiction (or alternatively, Plaintiffs have failed to state a claim), and the named plaintiffs cannot establish the requisite typicality. See generally Bailey v. Patterson, 369 U.S. 31, 32-33 (1962)(plaintiffs “cannot represent a class of whom they are not a part”).
Plaintiffs also cannot demonstrate that they “fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). Given Plaintiffs’ failure to meet the commonality and typicality requirements of Fed. R. Civ. P. 23(a)10, they cannot establish that they will fairly and adequately represent the class “in that the proposed [p]laintiff class representatives cannot adequately represent the interests of other [p]laintiff members of the class with atypical claims.” Badillo v. American Tobacco, 202 F.R.D. 261, 265 (D.Nev. 2001). Further, Plaintiffs’ many missteps throughout five years of litigation of this case also demonstrate that these Plaintiffs are inadequate class representatives. Such missteps include repetitious filings of complaints yet still no clear demonstration of the threshold jurisdictional requirement of standing (R. 1, R. 24 and R. 28) and their bungling of discovery which has been so egregious that the Court has issued three
9It is surprising that Plaintiffs have maintained this suit for almost six years, filing three complaints in this Court, yet failing to establish - or ignoring - the prerequisites to suit for purposes of bringing their Title VII class claims in this Court. See Fed. R. Civ. P. 11(b)(2).
10As indicated above, only one of the named Plaintiffs actually applied for positions at the Library during the relevant period, and none were disciplined, none received negative performance evaluations, none sought and was denied training, and none demonstrated that they were classified differently than their non-minority counterparts. R. 120-2 to R. 120-11, Pls.’ Supplementary Responses to Def.’s First Set of Interrogatories Re. the Second Am. Compl. of Pls.(Mills, Balondemu, Duncan, Hubbard, Ijeomah-Mills, Knight, Mwalimu, Perry, Taylor, and Rowland).
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discovery orders against the Plaintiffs (see R. 44, 73, and 114, orders granting Defendant’s motions to compel and/or for sanctions). Further, their discovery responses evidence lack of any Title VII claim whatsoever on the part of any of the Plaintiffs which also reveals the inadequacy of Plaintiffs as class representatives.
Because Plaintiffs do not satisfy the requirements for certification under Rule 23(a), the Court need not consider whether they have satisfied Rule 23(b). Should the Court nevertheless undertake this task, it will find additional reasons to deny class certification.
ii. Fed. R. Civ. P. 23(b) The same deficiencies discussed above with respect to Rule 23(a) apply with equal, or even greater, force with respect to 23(b). Because each of the proposed class member's claims will succeed or fail based on the particular factual circumstances presented, there is no risk of inconsistent adjudications or incompatible standards of conduct. For example, assuming solely for the sake of argument that plaintiff Knight has a meritorious non-promotion claim, a judicial determination to that effect would have no bearing on the claim of another named plaintiff or class member. This is especially so given the broad range of positions at issue (indeed, both professional and nonprofessional positions, see, e.g. Compl. ¶ 6.a and 6.f). Accordingly, Plaintiffs' proposed class cannot be certified under Rule 23(b)(1). Under Rule 23(b)(2), a plaintiff must show that a defendant “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). As noted above, Plaintiffs failed to identify any discriminatory policy or practice that is generally applicable to the class. Instead, the Plaintiffs are a group of professional and non-professional
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employees asserting a laundry list of claims of discrimination – certain of which do not apply to all Plaintiffs (e.g., discipline, performance evaluations, telework). Thus, Plaintiffs’ class cannot be certified under Rule 23(b)(2).
As to Rule 23(b)(3), a class complaint cannot be certified in the absence of a showing by the plaintiffs “that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that the class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed. R. Civ. P. 23(b). Here, because Plaintiffs fail to demonstrate commonality, they certainly cannot meet the more demanding standard that questions of law or fact common to all class members must “predominate” over any questions affecting only individual members.
Finally, a class action here would not be superior to individual trials. The class action device is not appropriate when it cannot achieve sufficient “economies of time, effort, and expense.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 615 (1997). The individual determinations required in this matter will preclude such economies. Individual lawsuits, on the other hand, would not be a waste of judicial resources particularly here where the threshold issue of exhaustion is in significant doubt across the board. D. CONCLUSION
For the foregoing reasons, Defendant respectfully requests that the Court dismiss Plaintiffs’ complaint, including denying class certification. Alternatively, Defendant requests that the Court grant Defendant summary judgment in its favor. Date: April 9, 2010
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Respectfully submitted,
/s/ Ronald C. Machen Jr. /kvm RONALD C. MACHEN JR., D.C. Bar #447889 United States Attorney
/s/ Rudolph Contreras RUDOLPH CONTRERAS, D.C. Bar #434122 Assistant United States Attorney
/s/ Julia K. Douds /bmr JULIA K. DOUDS Special Assistant United States Attorney U.S. Attorney’s Office for the District of Columbia, Civil Division 555 4th Street, N.W. Washington, D.C. 20530 Ph: (202) 707-7198 Fax: (202) 514-8780 E-mail: jdou@loc.gov
/s/ Beverly M. Russell BEVERLY M. RUSSELL, D.C. Bar #454257 Assistant U.S. Attorney Office of the United States Attorney for the District of Columbia, Civil Division 555 Fourth St., N.W., Rm. E-4915 Washington, D.C. 20530 Ph: (202) 307-0492 Fax: (202) 514-8780 E-mail: beverly.russell@usdoj.gov
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 Case 1:04-cv-02205-HHK -AK Document 177 Filed 05/03/10 Page 1 of 39

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

Christine Mills et al.,

)

)

Plaintiffs, )

) Case No. 04-cv-2205 (HHK)

v.

)

)

James Billington, Librarian,

)

Library of Congress,

)

)

Defendant. )

)

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS, OR ALTERNATIVELY, FOR SUMMARY
JUDGMENT

David L. Rose Joshua N. Rose Yuval Rubinstein ROSE & ROSE P.C. 1320 19th Street, N.W. Suite 601 Washington, D. C. 20036 (202) 331-8555
. Date: May 3, 2010 Attorneys For Plaintiffs

Case 1:04-cv-02205-HHK -AK Document 177 Filed 05/03/10 Page 2 of 39

TABLE OF CONTENTS

Page No.

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I. THE SEPTEMBER 15, 2003 LETTER FROM PLAINTIFFS MILLS AND IJEOMAH-MILLS TO LIBRARIAN BILLINGTON AND INSPECTOR GENERAL KARL SCHORNAGEL’S MARCH 1, 2004 RESPONSE.. . . . . . . . . . . . 2

II. THE MAY 28, 2004 CLASS CHARGE SUBMITTED BY MILLS AND OTHERS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

III. DEFENDANT’S JUNE 6, 2005 MOTION TO DISMISS AND THIS COURT’S MAY 16, 2006 ORDER DENYING DEFENDANT’S MOTION. . . . . . . . 4

IV. THE PARTIES AGREE IN AUGUST 2006 TO DEFER MERITS DISCOVERY AND SUMMARY JUDGMENT UNTIL AFTER RESOLUTION OF CLASS CERTIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

V. PLAINTIFFS’ DECLARATIONS PROVIDE FURTHER EVIDENCE THAT THEY HAVE BEEN INJURED BY DEFENDANT’S DISCRIMINATORY ACTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

I. DEFENDANT’S SUMMARY JUDGMENT MOTION IS PREMATURE BECAUSE CLASS ISSUES SHOULD BE DECIDED BEFORE INDIVIDUAL ISSUES, AND BECAUSE THE PARTIES AGREED IN 2006 TO DEFER INDIVIDUAL DISCOVERY UNTIL AFTER CLASS CERTIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

A. In Pattern or Practice Class Cases, It is Inappropriate to Move For Summary Judgment on Individual Claims Before the Class Issue Has Been Decided.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

B. Summary Judgment is Inappropriate in Light of the Parties’ Current Discovery Dispute, as Well as the Parties’ August 2006 Agreement

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to Defer Individual Discovery and Summary Judgment Motions Until After Class Certification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
II. THIS COURT SHOULD ALSO DEFER DECISION ON DEFENDANT’S MOTION TO DENY CLASS CERTIFICATION UNTIL AFTER PLAINTIFFS HAVE MOVED FOR CLASS CERTIFICATION.. . . . . . . . . . . . . . . . . . . . . . . . . . . 15
III. THIS COURT HAS ALREADY REJECTED DEFENDANT’S CONTENTION THAT PLAINTIFFS DID NOT EXHAUST THEIR ADMINISTRATIVE REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
A. This Court Ruled in its May 16, 2006 Opinion and Order That Plaintiffs Had Exhausted Their Administrative Remedies, and That Ruling is Law of the Case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
B. Plaintiffs’ May 2004 Charge Provided Defendant Notice of the Class Allegations in the Second Amended Complaint. . . . . . . . . . . . . . . . . . . . . . . . 20
C. Plaintiff Knight Has Identified Nonpromotions Occurring Within Sixty Days of the May 28, 2004 Class Charge. . . . . . . . . . . . . . . . . . . . . . . . . . 22
IV. PLAINTIFFS HAVE BOTH ALLEGED AND PROVIDED EVIDENCE OF INJURY IN FACT TO CONFER STANDING. . . . . . . . . . . . . . . . . . . . . . . . . . . 23
V. DEFENDANT HAS WAIVED ITS RES JUDICATA AFFIRMATIVE DEFENSE, AND IN ANY EVENT THIS CASE DOES NOT INVOLVE THE SAME “NUCLEUS OF FACTS” AS COOK, WHICH ENDED IN DECEMBER 2002. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
A. Defendant’s Failure to Plead Res Judicata and Collateral Estoppel as Affirmative Defenses in its Answer Waives Both Defenses. . . . . 24
B. Because This Case Involves a Different Time Period and Different Set of Facts Than Cook, Res Judicata and Collateral Estoppel Do Not Apply. . 25
C. Defendant’s Contention That the Cook Settlement Forecloses This Lawsuit is Directly Contrary to Its Position in March 2004, When it Informed Plaintiffs Mills and Ijeomah-Mills That Cook Did Not Apply. . . . 29
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
iii

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TABLE OF AUTHORITIES

CASES

Page No.

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Apotex, Inc. v. Food & Drug Admin., 393 F.3d 210 (D.C. Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Chappell-Johnson v. Powell, 440 F.3d 484 (D.C. Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Chateau de Ville Prods., Inc. v. Tams-Witmark Music Library Inc., 586 F.2d 962 (2d Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Christianson v. Colt Indus. Operating Corp., 486 U.S. 800 (1988).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Commissioner v. Sunnen, 333 U.S. 591 (1948).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Cook v. Boorstin, 763 F.2d 1462 (D.C. Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867 (1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Drake v. FAA, 291 F.3d 59 (D.C. Cir.2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27

Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Foman v. Davis, 371 U.S. 178 (1962).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Foster v. Gueory, 655 F.3d 1319 (D.C. Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Garrett v. City and County of San Francisco, 818 F.2d 1515 (9th Cir. 1987).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

iv

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Green v. McDonnell-Douglas Corp., 463 F.2d 337 (8th Cir. 1972), vacated on other grounds, 411 U.S. 792 (1973) . . . . . . . . 15
* Harris v. Secretary, U.S. Dept. Of Veterans, 126 F.3d 229 (D.C. Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25
Holowecki v. Federal Express Corp., 440 F.3d 558 (2d Cir. 2006), aff’d, 552 U.S. 389 (2008). . . . . . . . . . . . . . . . . . . . . . . . . 22
* Hyman v. First Union Corp., 980 F.Supp. 46 (D.D.C. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
I.A.M. Nat'l Pension Fund v. Indus. Gear Mfg. Co., 723 F.2d 944 (D.C. Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
LaShawn A. v. Barry, 87 F.3d 1389 (D.C. Cir. 1996)(en banc). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Martin v. Dep’t of Justice, 488 F.3d 446 (D.C. Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27-28
McDonnell-Douglas v. Green, 411 U.S. 792 (1973).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14
Meijer, Inc. v. Biovail Corp., 533 F. 3d 857 (D.C. Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Page v. United States, 729 F.2d 818 (D.C. Cir. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27
* Palmer v. Schultz, 815 F.2d 84 (D.C. Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 29
Park v. Howard Univ., 71 F.3d 904 (D.C. Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Poulin v. Bowen, 817 F.2d 865 (D.C. Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
v

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Pennycuff v. Fentress County Bd. Of Educ., 404 F.3d 447 (6th Cir. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147 (2d Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
* Schuler v. PricewaterhouseCoopers, 514 F.3d 1365 (D.C. Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21
* Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984), cert. denied, 471 U.S. 1115 (1985) . . . . . . . . . . . . 13, 14
Smalls v. United States, 471 F.3d 186 (D.C. Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Strigliabotti v. Franklin Resources, Inc., 398 F.Supp.2d 1094 (N.D. Cal. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
* Teamsters v. U.S., 431 U.S. 324 (1977).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 14
Thiessen v. General Electric Capital Corp., 267 F.3d 1095 (10th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 14
Thomas v. Sheahan, 370 F.Supp.2d. 704 (N.D. Ill. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Wagner v. Taylor, 836 F.2d 578 (D.C. Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Whelan v. Abell, 48 F.3d 1247 (D.C. Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Williams v. Boeing, 517 F.3d 1120 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
FEDERAL STATUTES
42 U.S.C. § 2000e et seq. (Title VII). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 27
42 U.S.C. § 2000e-2(k)(1)(A)(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
42 U.S.C. § 2000e-2(k)(1)(C)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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Case 1:04-cv-02205-HHK -AK Document 177 Filed 05/03/10 Page 7 of 39 FEDERAL REGULATIONS 29 C.F.R. § 1607.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 LCR 2010-3.2 § 6(D). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 FEDERAL RULES Fed. R. Civ. P. 8(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Fed. R. Civ. P. 15(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Fed. R. Civ. P. 15 (c)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Fed. R. Civ. P. 23(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17 Fed. R. Civ. P. 23(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Fed. R. Civ. P. 56(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 OTHER AUTHORITIES 1B J. MOORE, MOORE'S FEDERAL PRACTICE ¶ 0.410[1] (2d ed. 1983). . . . . . . . . . . . . . . 16 7AA Charles Alan Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure Civil § 1785.3 (3d 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
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INTRODUCTION More than five years after this case was filed, and with Plaintiffs on the cusp of moving for class certification, Defendant Library of Congress (“Defendant”) has belatedly moved to dismiss Plaintiffs’ claims in the Second Amended Complaint, and in the alternative moved for summary judgment. Defendant’s motion is ill-timed, as the parties are in the midst of a dispute regarding Defendant’s refusal to produce electronic applicant flow data. This outstanding data is critical to Plaintiffs’ class certification motion, as well as individual plaintiffs’ claims. See Rule 56(f) Declaration, ¶¶10-15. Moreover, Defendant’s motion contravenes its earlier agreement in August 2006 that “summary judgment pleadings should be deferred until after the matter of class certification is complete,” and to “defer merits and damages discovery” as well. Dkt. 18, August 1, 2006 Joint Local Rule 16.3 Statement. It simply does not make sense to rule on summary judgment at this juncture, as this Court has yet to rule on Plaintiffs’ Motion to Compel, while the individual plaintiffs have yet to complete discovery in keeping with the bifurcated discovery plan. Defendant also argues that the May 28, 2004 class charge did not specify any adverse employment actions occurring within 60 days. Yet this argument is barred by the law-of-the-case doctrine. This Court’s May 16, 2006 Opinion and Order noted that Defendant violated its own regulation by failing to provide Plaintiffs ten days to remedy any defects in the complaint. See Dkt. 15. In any event, the class charge provided Defendant ample notice of the class allegations in the Second Amended Complaint, while Plaintiff Clifton Knight was denied a promotion within 60 days of the class complaint. Defendant’s primary argument is that this case is barred by res judicata and collateral
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estoppel based on the Cook Settlement. This argument is simply meritless. First, Defendant has waived both affirmative defenses by failing to plead them in its answer. In addition, the Cook Settlement expired on December 1, 2002, while this case accrued in 2003, and therefore involves a different “nucleus of facts” than Cook. Indeed, Defendant’s General Counsel and Inspector General stated in a March 1, 2004 that the Cook settlement “expired by its own terms on December 1, 2002.” Pl. Exh. 2. Defendant’s reliance on this Court’s September 2003 Order in Cook is also unavailing, as this Court never examined whether there were less discriminatory alternatives, which Plaintiffs may prove even assuming arguendo that Defendant’s selection system was valid.
Finally, Defendant asserts what amounts to a motion to deny class certification. This request is plainly improper, as the parties’ dispute over class discovery has yet to be resolved. The electronic applicant flow data Defendant is withholding is critical to Plaintiffs’ pending class certification motion. This Court should defer ruling on Defendant’s motion to deny until after Plaintiffs have filed their motion.
STATEMENT OF FACTS I. THE SEPTEMBER 15, 2003 LETTER FROM PLAINTIFFS MILLS AND IJEOMAH-
MILLS TO LIBRARIAN BILLINGTON AND INSPECTOR GENERAL KARL SCHORNAGEL’S MARCH 1, 2004 RESPONSE Plaintiffs Christine Mills and Priscilla Ijeomah-Mills (along with Amy Barnes, who is no longer a party this case) submitted a letter to Librarian James Billington on September 15, 2003. The letter followed-up an earlier letter sent by Leon Turner and Howard Cook “centered around issues of favoring White employees as opposed to African American employees.” Pl. Exh. 1. The September 15 letter noted that white Senior Circulation Technicians are not required to execute rotational assignments, unlike their African-American colleagues, and are given training and
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grooming opportunities that are not afforded to African-Americans. The letter further noted that a recently announced Vacancy Announcement (number
AT177527) was only open to individuals that were “preselected” and was not open to all Library of Congress employees. The letter alleged that this vacancy announcement violated an Order in the Cook case, and requested that the Inspector General conduct an investigation, and that the Vacancy Announcement be withdrawn.
The Library responded several months later in a March 1,2004 memorandum submitted to Billington by Inspector General Karl W. Schornagel. Pl. Exh. 2. Schornagel referred to a previous July 2, 2003 letter by the Library’s General Counsel, which “stated that the Cook case expired by its own terms on December 1, 2002 and that the case only covered professional, administrative and supervisory technical African-American employees of the Library,” and thus did not cover employees in Collections Access, Loan and Management (CALM). Schornagel “concurr[ed] with the Library’s General Counsel opinion on the nonapplicability of the Cook case.” Schornagel concluded that Library management was not violating Library regulations.1 II. THE MAY 28, 2004 CLASS CHARGE SUBMITTED BY MILLS AND OTHERS
In response to the March 1, 2004 report, Mills, Ijeomah-Mills and Barnes submitted a “Third Party complaint” to the Library’s EEO department on May 28, 2004. See Dkt. 6-1. The complaint was signed by over 600 African-American employees, and included sixteen paragraphs detailing the employment practices that discriminated against African-American Library employees. The
1 Plaintiffs Mills and Ijeomah-Mills reserve the right to argue that their individual claims extend back to September 2003, as this letter to Billington constitutes a charge of discrimination under the “permissive standard” set forth in Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008).
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complaint also requested that the Library “take remedial action.” III. DEFENDANT’S JUNE 6, 2005 MOTION TO DISMISS AND THIS COURT’S MAY
16, 2006 ORDER DENYING DEFENDANT’S MOTION Defendant filed a Motion to Dismiss the original complaint on June 6, 2005. Defendant argued that Plaintiffs failed to exhaust their administrative remedies by purportedly “refus[ing] to provide information about specific incidents and dates of alleged discrimination, challeng[ing] the Counselor’s ability to handle the complaint, and refus[ing] to provide details about the positions held by members of the alleged class.” Dkt. 6, at 10. Defendant also maintained that “[p]roviding the Library with bare ‘notice’ of their allegations in the form of an informal complaint...is not enough to satisfy the administrative exhaustion requirements.” Id. at 11. Furthermore, Defendant contended that “the 15 allegations asserted in the two administrative complaints filed with the Library’s EEOCO describe no specific instances of discrimination, provide no dates when such discrimination took place, and fail to present or assert any evidence of commonality and typicality required for a class complaint.” Id. Defendant concluded that “Plaintiffs’ agents failure to provide specific information to the Library’s Counselor and their general refusal to cooperate in the Library’s EEO administrative process bars them from filing and maintaining a suit in this Court.” Id. at 12. This Court denied Defendant’s motion on May 16, 2006. Dkt. 15. Plaintiffs pointed out that they had accepted both invitations by Claudia Withers, who the Library had retained to conduct counseling. In addition, Plaintiffs were willing to provide specific information, but Withers “was more concerned with relaying information than receiving information.” Id. at 10. The basis for this Court’s ruling was the Library’s premature cancellation of Plaintiffs’ complaint “when it did not afford the class agents an opportunity to remedy whatever defects may
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have existed in their complaint, as is required by LOC regulations.” Id. Regardless of whether the dismissal was based on “lack of specificity in the class agents’ complaint or their failure to prosecute their claim...LOC regulations require that the class agents be given ten-days notice of the deficiencies in their complaint and an opportunity to address those deficiencies.” Id. This Court found based on Defendant’s “numerous errors when processing plaintiffs’ complaint,” that Plaintiffs had “constructively exhausted their administrative remedies.” Id. at 12. IV. THE PARTIES AGREE IN AUGUST 2006 TO DEFER MERITS DISCOVERY AND
SUMMARY JUDGMENT UNTIL AFTER RESOLUTION OF CLASS CERTIFICATION The parties submitted a Local Rule 16.3 Report on August 1, 2006. The report initially noted that:
The Parties agree that this case is likely to be decided by dispositive motion, and that in order to efficiently process the case that such briefing should be done after a period of discovery on class issues only. We address the issue of bifurcation below, in which the Parties agree to defer merits and damages discovery until after resolution of the matter of class certification. Dkt. 18, Joint Local Rule 16.3 Report, at 1. The parties also stated that “summary judgment pleadings should be deferred until after the matter of class certification is complete,” and that “a briefing schedule for summary judgment matters should be set and decided at a status conference to follow a decision on class certification and related matters.” Id. at 2. The Report also noted that the Parties agree to bifurcation of discovery into at least two phases, have made a specific proposal for such bifurcation and agree to consider further bifurcation after completion of the Class Certification Stage. V. PLAINTIFFS’ DECLARATIONS PROVIDE FURTHER EVIDENCE THAT THEY HAVE BEEN INJURED BY DEFENDANT’S DISCRIMINATORY PRACTICES
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The plaintiffs in this case are ten current and former African-American Library employees.2 Each plaintiff has submitted a declaration that sets out the injury he/she has incurred because of race: • Christine Mills is a GS-8 Senior Circulation Technician. Pl. Exh. 3, ¶ 3. In 2003, Ms. Mills was denied training for an Accounts Department position, and because of this denial of training was unable to post for the position. The position was specifically posted for a white employee, Ken Henderson. Ms. Mills interviewed anyway for the position, although the Library did not abide by its policy requiring a three-person panel. ¶¶7-10.
Ms. Mills subsequently sent a letter to James Billington requesting that the vacancy announcement be withdrawn. ¶11. However, the Library’s Inspector General, Karl Schornagel, responded several months later that the position assignments were not based on race. ¶12.
Even after filing the May 28, 2004 class complaint, Ms. Mills has been subject to discrimination. In 2005, Ms. Mills was detailed to a Librarian position, but was not interviewed when the position became vacant. ¶15. Instead, the Library selected four less qualified non-AfricanAmerican employees who had never been employed in the Loan Division. ¶¶16-18. In 2006, Ms. Mills applied for a supervisor position and was interviewed, but was not selected. Ms. Mills was better qualified than the individuals selected, and in fact had trained them. Ms. Mills filed an EEO complaint based on this nonselection, but it was dismissed. ¶¶19-21. Ms. Mills is currently setting up accounts, which is equivalent to a GS-9 position, but she is only being paid as a GS-8. ¶22. • Priscilla Ijeomah-Mills is a GS-8-10 Inventory Specialist. Pl. Exh. 4, ¶3. Ms. Ijeomah-Mills was a signatory to the September 15, 2003 letter to Billington involving the Accounts Section
2 Plaintiffs do not argue that each of the plaintiffs is a class representative. Plaintiffs will designate class representatives when their forthcoming motion for class certification is filed.
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position. ¶¶5-10. Ms. Ijeomah-Mills was also denied a Librarian position in 2005 despite being better qualified than two white females selected. ¶¶11-15. • Clifton Knight was in a GS-9 position between 1982 and 2009, and is currently a GS-11 Copyright Information Specialist. Pl. Exh. 5, ¶3. Mr. Knight has applied for well over 125 positions since 2001, but has been repeatedly denied promotions. ¶4. He is subject to discrimination in his current position as well. The Library was supposed to upgrade all Copyright Information Specialist positions to GS-12, but only upgraded positions for two white employees. ¶6. The Library has also denied him opportunities for training that are directly tied to promotional opportunities. In November 2009, Mr. Knight was advised hie was ineligible for the Library’s Leadership Development Program for 2010-11 on the ground that he was not a current, full-time Library employee, even though that was not the case. ¶7 Mr. Knight also points to an inequity in the grading of Information Specialist positions, which are primarily occupied by African-American employees, and Registration Specialist positions and Reference Librarian positions, which are higher-graded and predominantly white. ¶10. • David Hubbard is a GS-9 Problem Resolutions Specialist. Pl. Exh. 6, ¶2. In September 2003, Mr. Hubbard applied for a Copyright Information Specialist Position, but was not selected. The Library instead hired David Fernandez, who had been employed by the Library for only 4-5 years, and was re-employed as a contractor. ¶6. The position was never posted, and Fernandez was placed directly into the job without competition. ¶7. Mr. Hubbard filed an EEO complaint based on this nonselection, but the Library never conducted an investigation. ¶8.
In 2008, there were three GS-11 job openings available, and two in Mr. Hubbard’s department, Visual Arts Recordation. Mr. Hubbard interviewed for the positions, but was not selected. Instead, the Library selected two white females, Elizabeth Stringer and Larisa Pastuvich,
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who were not working in VAR and were less qualified. ¶¶9-12. Mr. Hubbard has also been denied the same training opportunities as his white employees who attained much higher grades. ¶¶13-14. He also notes that “[m]any positions are not posted. The AVUE system also provides management discretion to change and manipulate the Avue system.” ¶15. • Charles Mwalimu was a Foreign Law Specialist between 1982 and February 2007, when he left the Library. Pl. Exh. 7, ¶4. In 2005, Library officials went outside the United States and hired Brian Buchner, a white male living in Hong Kong, to fill the Chief of Eastern Law Division position even though Dr. Mwalimu was the best qualified. ¶¶6-7. Before Buchner was hired, the Library had brought in another white male, James Bond to be Acting Chief. But when Library officials realized Bond was not qualified for the position, they changed the position description in such a way to qualify Buchner. ¶¶9-10.
Dr. Mwalimu subsequently filed an EEO charge after Bond was brought in. ¶11. The Library retaliated against Dr. Mwalimu by suspending him twice for reasons that were unjustified. ¶12. The Library removed Dr. Mwalimu from his position in February 2007 for “misconduct,” although this decision was also in retaliation for his earlier EEO complaints alleging race discrimination. ¶13. • Lawrence Perry is a GS-11 working in Information Technology. Pl. Exh. 8, ¶3. Mr. Perry’s white colleagues have been given promotions to higher grade positions. ¶4. He is currently performing the exact same duties as his non-African-American colleagues in his unit, but is the lowest paid. ¶5. The Library has informed him that his lower pay is due to the lack of money for pay raises. ¶6. Yet this explanation is incorrect, as the Library has been consistently hiring new employees. ¶7.
In 2004, the Library hired a white male, George Wilkey as a contractor. The Library created
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a “limited posting” specifically for Wilkey to a GS-12 position. Mr. Perry was better qualified for the GS-12 position than Wilkey, as he was already performing the duties of the position, but because it was a “limited posting,” Mr. Perry was unable to apply for the position. ¶¶9-11. • Runako Balondemu is currently a GS-9 Human Resources Specialist. Pl. Exh. 9, ¶2. Between 2003 and 2005, Balondemu was subject to harassment and discrimination by Allen Hatcher and Raphael Landrau, particularly before and after Mr. Balondemu underwent a surgery. ¶5. Hatcher and Landrau also gave Balondemu poor evaluations despite his exceptional performance records, and was denied cash awards in 2003 and 2004. ¶6. They also tried to demote Mr. Balondemu on the ground that he was not doing the work of a GS-9, although his white colleagues were not subject to the same treatment. Mr. Balondemu was also denied training given to his white colleagues. In 2005, Hatcher hired two white females without any experience in federal government, and provided them extensive training that Mr. Balondemu was denied. ¶8. Mr. Balondemu filed several EEO complaints based on the discrimination he experienced between August 2003 and January 2005, but each EEO complaint was cancelled. ¶9-10. • William Rowland was employed at the Library as a GS-8 Senior Collections Improvement Assistant/Library Technician. Pl. Exh. 10, at ¶3. Mr. Rowland knew that his job was a GS-9 to GS11 position, and that he was being underpaid for the work he was performing. ¶4. Consequently, between 2000 and 2006 Mr. Rowland repeatedly sought to get the position description reviewed by requesting a desk audit. The Library, however, dragged out the process and never performed the desk audit. ¶¶5-6. Mr. Rowland notes that his unit was predominantly African-American, and that his colleagues were also being underpaid for the work they were performing. ¶8. • Geraldine Duncan was a GS-9 employee in Library Services as of January 2010, when she
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retired from the Library. Pl. Exh. 11, ¶2. Ms. Duncan was a Cataloguer’s Technician, but wa performing the work of a Cataloguer, which was a GS-12 and GS-13 position. ¶3. She and two other African-American females were the lowest paid employees in the unit. ¶5. Ms. Duncan became discouraged from applying for promotions toward the end of her career, as she had previously applied for 30 promotions, yet had not been selected. ¶7. • Sharon Taylor was a GS-5 Copyright Clerk during her tenure at the Library. Pl. Exh. 12, ¶2. Despite meeting her performance goals, the Library alleged that she was not meeting her quotas. ¶¶35. This allegation was untrue, as Ms. Taylor’s certificates showed her meeting her goals. ¶6. Ms. Taylor was called into the office of a white supervisor, Ms. Didant in August 2003. Ms. Taylor was informed that September 30, 2003 would be her last day on the job as she was not a good “fit.” ¶8 Ms. Taylor’s direct supervisor, Deandra Ham, stated that Ms. Didant should not have made that comment. ¶9. Ms. Taylor subsequently filed an EEO ground, but the Library dismissed the charge. ¶10.
ARGUMENT I. DEFENDANT’S SUMMARY JUDGMENT MOTION IS PREMATURE BECAUSE
CLASS ISSUES SHOULD BE DECIDED BEFORE INDIVIDUAL ISSUES, AND BECAUSE THE PARTIES AGREED IN 2006 TO DEFER INDIVIDUAL DISCOVERY UNTIL AFTER CLASS CERTIFICATION Defendant seeks to dismiss the individual claims of all ten plaintiffs on the ground that they have “fail[ed] to state a cognizable claim under Title VII.” Def. Brief at 42. Of course, Defendant has filed a statement of undisputed facts and relied on discovery documents outside the four corners of the Second Amended Complaint, so that its motion is actually one for summary judgment. Defendant’s motion is premature for two reasons: first, class issues must be decided before individual plaintiffs’ claims are addressed, and summary judgment on Plaintiffs’ claims is untimely
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in light of the parties’ 2006 agreement to bifurcate discovery and defer summary judgment until after class certification.
A. In Pattern or Practice Class Cases, It is Inappropriate to Move For Summary Judgment on Individual Claims Before the Class Issue Has Been Decided
Plaintiffs’ Second Amended Complaint alleges a pattern or practice of intentional discrimination against the Library. See Dkt. 28 at 2. The pattern or practice class claim is governed by the two-stage process set forth in Teamsters v. U.S., 431 U.S. 324 (1977). At “Stage 1,” the plaintiffs’ burden is to “demonstrate that unlawful discrimination has been a regular procedure or policy followed by an employer of group of employers.” Id. at 360. The plaintiffs at this stage are “not required to offer evidence that each person for whom [they] will ultimately seek relief was a victim of the employer's discriminatory policy,” but only to “establish a prima facie case that such a policy existed.” Id. If the plaintiffs prevail on liability, the court conducts “Stage 2" individual hearings on relief, in which a presumption of discrimination is established, so that “the burden then rests on the employer to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons.” Id. at 362.
The Supreme Court in Teamsters noted that “the question of individual relief does not arise until it has been proved that the employer has followed an employment policy of unlawful discrimination.” 431 U.S. at 361. Courts have subsequently ruled that it is inappropriate to move for summary judgment on individual employees’ claims before the class issue has been decided, which is precisely what Defendant seeks here.
For example, in Thiessen v. General Electric Capital Corp., 267 F.3d 1095 (10th Cir. 2001), the district court decertified the class and entered summary judgment against the lead plaintiff on individual grounds. The Tenth Circuit reversed, holding that:
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During the first stage of a pattern-or-practice case...a summary judgment motion (whether filed by plaintiffs or defendants) must focus solely on whether there is sufficient evidence demonstrating that defendants had in place a pattern or practice of discrimination during the relevant limitations period. See Teamsters, 431 U.S. at 357-61, 97 S.Ct. 1843.Until the first stage is resolved, we question whether it is proper for a court to consider summary judgment motions regarding second stage issues (i.e., whether individual plaintiffs are entitled to relief).
Thiessen, 267 F.3d at at 1109 (emphasis added).
This Court has likewise cautioned that summary judgment is inappropriate prior to resolution
of the pattern or practice class claim. In Hyman v. First Union Corp., 980 F.Supp. 46 (D.D.C.
1997)(Lamberth, J.), the defendant moved for summary judgment against three plaintiffs. This Court
noted that:
Where individual and collective claims are brought contemporaneously, as in the instant case, courts should consider the collective claim prior to turning their attention to the individual claims due to the fact that if the collective claim has merit, the named and unnamed individual class members are entitled to the burden-shifting presumption of Teamsters.
Hyman, 980 F.Supp. at 51.
The defendant’s summary judgment was denied as “inappropriate at this time.” Id. at 52.
Hyman describes this case’s procedural posture to a “t.”3 Defendant has prematurely moved for
summary judgment on the individual claims before Plaintiffs have even moved for class certification.
In so doing, Defendant has subverted the Teamsters method of proof.
3Defendant’s citation to Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 159 -160 (2d Cir. 2001) on page 44 of its brief is absolutely fatal to its summary judgment argument. As Robinson noted, the question of whether individual class members have incurred adverse employment actions should only be resolved “at the remedial stage of a pattern-or-practice claim.” Given that the parties have not yet litigated the first stage of a pattern or practice claim, it is inappropriate to skip ahead to the second stage, as Defendant seeks.
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Defendant makes two additional errors. First, Defendant claims that Plaintiffs have not identified a specific employment. But the D.C. Circuit held in Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984), cert. denied, 471 U.S. 1115 (1985) that
plaintiffs’ pattern or practice disparate treatment challenge to the employment system as a whole may also implicate disparate impact analysis...Though a plaintiff class will initially seek to show a disparity among the comparably qualified in order to prove disparate treatment, an employer may seek to defend by pointing to a specific, arguably nondiscriminatory, employment practice as the cause of the observed disparity. In such situations the defendant may appropriately be required to demonstrate the business necessity of the practices causing the disparity because the court will have before it all the elements of a traditional disparate impact claim Segar, 738 F.2d at 1266; see also Palmer v. Schultz, 815 F.2d 84, 114, fn.21 (D.C. Cir. 1987)(“[A] disparate treatment claim can turn into a disparate impact claim if a defendant rebuts an allegation of discriminatory intent by claiming that a facially neutral selection criterion caused a disparity in selections.”). Segar and Palmer make clear that the nature of Plaintiffs’ disparate impact claim will depend on Defendant’s rebuttal to Plaintiffs’ pattern or practice case. It is only at that point that the disparate impact claim will be joined.4 The second error lies in Defendant’s contention that this Court’s September 2003 Order in Cook establishes the Library’s “legitimate, nondiscriminatory reason” under the proof method set forth in McDonnell-Douglas v. Green, 411 U.S. 792 (1973). Def. Brief at 48-49. Yet the Supreme Court specifically noted that McDonnell-Douglas involves “the order and allocation of proof in a private, non-class action challenging employment discrimination.” 411 U.S. at 800 (emphasis
4 In addition to this binding D.C. Circuit precedent, Plaintiffs will be better positioned to define any disparate impact claim once they have evaluated the applicant flow data that Defendant is currently withholding.
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added); Thiessen, 267 F.3d at 1106 (pattern or practice order of proof “differ[s] dramatically” from individual claims).
Because this case is a putative class action, Defendant’s rebuttal burden under Teamsters is far more demanding than its de minimis burden of production under McDonnell-Douglas. The D.C. Circuit explained in Segar that once plaintiffs establish a prima facie pattern or practice case
the strength of the evidence sufficient to meet [the defendant’s] rebuttal burden will typically need to be much higher than the strength of the evidence sufficient to rebut an individual plaintiff's low-threshold McDonnell Douglas showing. Segar, 738 F.2d at 1269-70. The Court later explained in Palmer that the defendant must isolate a non-discriminatory factor that accounts for the statistical disparity in the plaintiffs’ proof. Palmer, 815 F.2d at 101. Moreover, Defendant’s purported “legitimate, nondiscriminatory reason” would not suffice to rebut Plaintiffs’ disparate treatment claims even if McDonnell-Douglas applied. As noted below, the Uniform Guidelines and the Civil Rights Act of 1991 both emphasize that a business necessity defense (which Defendant has yet to prove anyway) is irrelevant to an intentional discrimination claim. See infra at 29. B. Summary Judgment is Inappropriate in Light of the Parties’ Current Discovery Dispute, as Well as the Parties’ August 2006 Agreement to Defer Individual Discovery and Summary Judgment Motions Until After Class Certification Defendant’s motion for summary judgment on each individual plaintiff’s claims is particularly troubling given that the parties are in the midst of a year-long dispute over Defendant’s refusal to produce easily accessible electronic “applicant flow” data. Such data is not only critical to Plaintiffs’ class claim, but it is also essential to the nonpromotion claims of plaintiffs Mills, Ijeomah-Mills, Hubbard, Knight, Perry and Malimu.
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It is well-settled that a court should not grant summary judgment while a motion to compel discovery is pending. Garrett v. City and County of San Francisco, 818 F.2d 1515, 1518-19 (9th Cir. 1987)(error for district court to deny motion to compel as “moot” after granting summary judgment, as requested discovery was essential to show that similarly situated firefighters were treated differently due to race). Defendant’s attempt to prevent Plaintiffs from obtaining the discovery necessary to prove their individual claims is wholly unwarranted. As one judge has aptly noted, “[t]he ancient Hebrew expression, ‘They tie our hands and then reproach us that we do not use them,’ gives sufficient response here.” Green v. McDonnell-Douglas Corp., 463 F.2d 337, 344-45 (8th Cir. 1972)(Lay., J., concurring), vacated on other grounds, 411 U.S. 792 (1973).
Defendant’s motion for summary judgment also ignores its prior agreement in 2006 to defer individual discovery and any summary judgment motions until after class certification. Dkt. 18. The ten individual plaintiffs have yet to complete individual discovery because the parties previously agreed to bifurcate discovery. It is inexcusable for Defendant to seek summary judgment against the individual plaintiffs in light of its prior agreement. It is only after class certification has been decided that Plaintiffs’ individual claims should be addressed.5
II. THIS COURT SHOULD ALSO DEFER DECISION ON DEFENDANT’S MOTION TO DENY CLASS CERTIFICATION UNTIL AFTER PLAINTIFFS HAVE MOVED FOR CLASS CERTIFICATION
5Even if this Court determines that a ruling on summary judgment is appropriate at this juncture, Plaintiffs submit that additional briefing should be ordered. The limited data Defendant has produced points to statistically significant pay disparities. Plaintiffs asked Dr. Lance Seberhagen, an industrial psychologist, to analyze Defendant’s annual salaries of major occupations. Dr. Seberhagen found that the average salary of white employees was greater than the average salary of black employees in 13 out of 15 major occupations, with this disparity statistically significant at 2.68 standard deviations. Pl. Exh. 13, Second Declaration of Lance W. Seberhagen, ¶7 These significant disparities provide all the more reason for Defendant to produce applicant flow data involving promotions, with supplemental briefing to follow.
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Defendant concludes its motion with the equivalent of a motion to deny class certification. Def. Brief at 50-57. Although such “preemptive” motions are not uncommon, Defendant’s motion is both premature and misguided. The D.C. Circuit explained in Wagner v. Taylor, 836 F.2d 578 (D.C. Cir. 1987) that statistical evidence is sufficient to establish commonality under Rule 23(a). The Court noted that “[s]tatistical evidence...may suffice if the disparities in treatment are significant.” Id. at 592. There is absolutely no basis for Defendant to short-circuit Plaintiffs’ pending motion for class certification when the parties’ dispute over class discovery has yet to be resolved. ChappellJohnson v. Powell, 440 F.3d 484 (D.C. Cir. 2007).
The majority rule is that a district court “should defer decision on certification pending discovery if the existing record is inadequate for resolving the relevant issues.” Chateau de Ville Prods., Inc. v. Tams-Witmark Music Library Inc., 586 F.2d 962, 966 (2d Cir. 1978) (citations omitted); see also 7AA Charles Alan Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure Civil § 1785.3 (3d 2005)(the practice employed in the overwhelming majority of class actions is to resolve class certification only after an appropriate period of discovery). This Court should defer ruling on Defendant’s motion to deny class certification until after the dispute over class discovery has been resolved, and Plaintiffs have filed their motion for class certification. As one court has noted:
As for defendants’ motion to deny class certification, we agree with plaintiff that the motion is premature....Defendants proceed to argue against class certification before plaintiff has even moved to certify the class. Defendants attempt to foreclose any discovery on the issue of class certification, even though ‘the predominant view is to allow discovery before the motion for certification’ Thomas v. Sheahan, 370 F.Supp.2d. 704, 714 (N.D. Ill. 2005)(citation omitted). Defendant contends that Plaintiffs’ argument is a “red-herring,” Def. Brief at 54, fn. 8, but
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its rebuttal is both nonsensical and meritless. First, Defendant asserts that Plaintiffs’ interrogatory answers produced no evidence to satisfy the Rule 23 factors. It is unclear what Defendant is specifically referring to. Plaintiffs’ declarations pinpoint disparities in pay and promotion that are ripe for class treatment. Defendant also maintains that applicant flow data would not “verify that the Library’s hiring system results in a disparate impact to minority applicant [sic].” Yet Plaintiffs are not challenging Defendant’s “hiring system” at all. Moreover, the applicant flow data is unquestionably relevant to Plaintiffs’ pattern or practice disparate treatment claim, which Defendant does not appear to dispute. Finally, Plaintiffs’ declarations call into doubt whether Defendant’s selection process is indeed valid and nondiscriminatory. See infra at 28.
There are further reasons to stay decision on Defendant’s premature motion to deny class certification. Defendant contends that Plaintiffs’ class definition is not ascertainable. Def. Brief at 50-51. Yet Plaintiffs have repeatedly informed this Court in their status reports that once Defendant produces the electronic discovery at issue, Plaintiffs will have the ability to further refine their class claim. See Dkt. 166, Plaintiffs’ February 26, 2010 Status Report, at 4 (“[T]he written discovery served in May 200[9] that is the subject of Plaintiffs’ motion to compel is designed to give plaintiffs the data necessary to refine the class definitions and determine which practices will be the subject of the class motion.”).
Defendant also asserts that Plaintiffs have not met the requirements of Rule 23(a) and 23(b). Def. Brief at 51-57. Given that Plaintiffs have not yet designated class representatives, Defendant’s contention that as-yet-unnamed class representatives do not satisfy Rule 23's criteria is specious. In sum, Defendant has failed to provide a compelling reason to rule on the merits of class certification at this juncture.
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III. THIS COURT HAS ALREADY REJECTED DEFENDANT’S CONTENTION THAT PLAINTIFFS DID NOT EXHAUST THEIR ADMINISTRATIVE REMEDIES A. This Court Ruled in its May 16, 2006 Opinion and Order That Plaintiffs Had Exhausted Their Administrative Remedies, and That Ruling is Law of the Case Defendant argues that Plaintiffs failed to exhaust their administrative remedies, asserting that
the May 28, 2004 class charge did not specifically identify any discrete employment actions occurring within sixty days. Def. Brief at 33-36. This is not the first time Defendant has lodged this objection. Defendant’s first motion to dismiss, filed on June 6, 2005, averred that Plaintiffs’ agents failed to cooperate in the EEO counseling process by, inter alia, “refus[ing] to provide information about specific incidents and dates of alleged discrimination...and refus[ing] to provide details about the positions held by members of the alleged class,” so that the “formal administrative complaint, like the earlier informal administrative complaint, is vague and lacks specificity and detail.” See Dkt. 6, Defendant’s Motion to Dismiss, at 10.
This Court denied Defendant’s motion to dismiss, ruling that Plaintiffs “constructively exhausted their administrative remedies.” See Dkt. 15, Order of May 16, 2006, at 12. The ruling was based on the undisputed fact that Defendant “prematurely cancelled plaintiffs’ complaint when it did not afford the class agents an opportunity to remedy whatever defects may have existed in their complaint, as is required by LOC regulations.” Id. at 10. This Court noted that, by prematurely cancelling the complaint without providing Plaintiffs notice, Defendant violated LCR 2010-3.2 § 6(D), which provides that “[i]f an allegation lacks specificity and detail, the Complaints Examiner shall afford the agent10 workdays to provide specific and detailed information.” Id. at 11.
Defendant is rehashing the very same argument in the instant Motion, yet Defendant’s second go-round is proscribed by the law of the case doctrine. The Supreme Court has emphasized that
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“when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988). The D.C. Circuit has likewise held that “the same issue presented a second time in the same case in the same court should lead to the same result.” LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996)(en banc). Defendant’s attempt to have a “second bite at the apple” is plainly improper.
Indeed, it appears that Defendant is still attempting to “evad[e] the regulation’s strictures.” May 16, 2006 Order at 11. This Court pointed out in 2006 that the Library violated its regulations by a) failing to provide Plaintiffs any notice of the impending cancellation of their complaint, and b) failing to provide Plaintiffs ten days to correct any lack of specificity and detail in the complaint. Dkt. 15, at 11. The argument Defendant presents in this motion - that the May 28, 2004 class charge did not provide specific enough information - is completely beside the point even if Defendant was correct, as Defendant never provided Plaintiffs the opportunity to remedy any defect in the complaint. In other words, Defendant cannot “unring the bell” with respect to violating its own regulations.
Defendant will likely reply that the law-of-the-case doctrine does not apply, as its first motion to dismiss focused on Plaintiffs’ interactions with the EEO counselor, while the current motion concentrates on the May 2004 charge’s specificity. But this change in emphasis is immaterial as a matter of law. Strigliabotti v. Franklin Resources, Inc., 398 F.Supp.2d 1094, 1098 (N.D. Cal. 2005)(second motion to dismiss that is “essentially the same, but with a different emphasis” than first motion is barred by law of the case). Were it otherwise, parties could file a limitless succession of motions to dismiss, each with a different emphasis. Defendant has not pointed to any intervening
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change in law, or the discovery of any new facts, that warrant a reversal of this Court’s May 16, 2006 ruling. There is simply no good reason for this Court to revisit the exhaustion issue five years into this case.
B. Plaintiffs’ May 2004 Charge Provided Defendant Notice of the Class Allegations in the Second Amended Complaint
Even if Defendant’s exhaustion argument was properly before this Court, it would still be contrary to law. Defendant protests that Plaintiffs did not identify a discrete employment action occurring within 60 days of the May 28, 2004 charge. Yet Defendant ignores the fact that Plaintiffs are bringing a putative class action.6 The 2004 charge provided sixteen paragraphs articulating the policies and practices that have harmed African-American Library employees. See Dkt. 6-1, Third Party Complaint of Christine Mills, et al. The charge provided Defendant with notice that it was facing class-wide liability, and Defendant can hardly dispute that the class allegations in the Second Amended Complaint are “like or reasonably related to the allegations of the charge and growing out of such allegations.” Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995)(citation omitted).
The holding of the U.S. Court of Appeals for the D.C. Circuit in Schuler v. PricewaterhouseCoopers, 514 F.3d 1365 (D.C. Cir. 2008) is dispositive. The district court construed the plaintiff’s complaint as alleging two discrete failure-to-promote claims, and dismissed the case for failure to file an EEOC charge within 300 days of his nonpromotion. Id. at 1370. The D.C. Circuit reversed, noting that the plaintiff’s complaint had alleged a “pattern and practice” of age discrimination based on PwC’s discriminatory nonpromotion decisions, not two discrete
6 Defendant also asserts that “the mere assertion of a class action in court does not relieve any plaintiff from the requirement of exhausting administrative class action remedies[.]” Def. Brief at 34. But it is indisputable that the May 28, 2004 charge asserted class allegations.
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nonpromotion claims. Id. at 1371. Because the plaintiff was alleging an ongoing pattern or practice of discrimination, he was allowed to challenge PwC’s policies going back to the date of his original injury in 2000. Id.
Schuler instructs that when a party files a pattern or practice class-action charge, it is erroneous to focus on whether the charge (and the resulting complaint) allege discrete acts.7 See Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 876 (1984)(noting “manifest” difference between “an individual's claim of discrimination and a class action alleging a general pattern or practice of discrimination”). The bottom line is that the May 2004 class charge provided ample notice that Plaintiffs were challenging company-wide policies affecting African-American employees.
Along with Schuler, the Cook case, ironically enough, supports Plaintiffs’ position. The Library had argued that 31 individual plaintiffs who had not filed administrative charges could not intervene. The D.C. Circuit disagreed, and allowed these individuals to “piggyback” onto the class action administrative complaint:
Since the existence of [] systemic discrimination is precisely what the Library denied in its final decision in the administrative class action brought by Cook and the BELC, there would appear to have been no substantial possibility that any of the individual claims might have been settled administratively. In the circumstances of this case, therefore, the exhaustion requirement has been fully satisfied for all of the appellants. Cook v. Boorstin, 763 F.2d 1462, 1466 (D.C. Cir. 1985)(emphasis added).
7The Court noted in Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, fn.9 (2002) that “[w]e have no occasion here to consider the timely filing question with respect to ‘pattern-or-practice’ claims brought by private litigants,” further underscoring the distinction between discrete employment actions and pattern or practice cases.
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C. Plaintiff Knight Has Identified Nonpromotions Occurring Within Sixty Days of the May 28, 2004 Class Charge
This Court need not look beyond the four corners of the May 28, 2004 class charge to find that Plaintiffs have exhausted their administrative remedies. Yet Defendant’s argument fails even on its own terms. Plaintiff Clifton Knight notes in his declaration that he has applied for more than 125 promotions since 2001. The list of applications appended to his declaration notes that he applied for eight positions between April 16, 2004 and May 20, 2004. Pl. Exh 5, ¶4. The other plaintiffs and class members may therefore “piggyback” onto his claim. Foster v. Gueory, 655 F.3d 1319, 1322-23 (D.C. Cir. 1981); see also Holowecki v. Federal Express Corp., 440 F.3d 558, 569 (2d Cir. 2006), aff’d, 552 U.S. 389 (2008).
Defendant asserts that Knight’s nonpromotions do not exhaust his administrative remedies, as he was not a party to the December 2004 complaint. Def. Brief at 36, fn.4. As an initial matter, Knight was a signatory to the May 28, 2004, as he points out in his declaration. Pl. Exh. 5, ¶5. Defendant also ignores Fed. R. Civ. P. 15 (c)(1)(B), which states that “an amendment to a pleading relates back to the date of the original pleading when...the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out...in the original pleading.” Defendant can hardly deny that Knight’s claim “arose out of the conduct...set out...in the original pleading.” See also Meijer, Inc. v. Biovail Corp., 533 F. 3d 857, 866 (D.C. Cir. 2008)(“The underlying question is whether the original complaint adequately notified the defendants of the basis for liability the plaintiffs would later advance in the amended complaint.”). Because the First and Second Amended Complaints “relate back” to the original December 2004 complaint, it is beside the point that Knight was not a named plaintiff in the original pleading.
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IV. PLAINTIFFS HAVE BOTH ALLEGED AND PROVIDED EVIDENCE OF INJURY IN FACT TO CONFER STANDING Defendant next contends that Plaintiffs have “failed to satisfy standing requirements” because
they “identified no personal injury.” Def. Brief at 37. Defendant is wrong. The governing standard is set forth in Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992):
At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss, we “presum[e] that general allegations embrace those specific facts that are necessary to support the claim.”...In response to a summary judgment motion, however, the plaintiff can no longer rest on such “mere allegations,” but must “set forth” by affidavit or other evidence “specific facts,” Fed. Rule Civ. Proc. 56(e), which for purposes of the summary judgment motion will be taken to be true. The Second Amended Complaint provides sufficient “general factual allegations” regarding disparities in training, discipline, classification, and other policies affecting career advancement, to confer standing. See Dkt. 28, Second Amended Complaint, ¶¶15-23. See also Williams v. Boeing, 517 F.3d 1120, 1127 (9th Cir. 2008)(class allegations involving “less pay as a result of Boeing's discriminatory compensation practices” sufficient to establish standing). Even under the summary judgment standard, Plaintiffs have provided sufficient facts to establish injury-in-fact. Plaintiff Knight applied for several positions, and has clearly established standing. It is well-settled that “[a]t least one named plaintiff must satisfy the actual injury component of standing in order to seek relief on behalf of himself or the class.” Williams, 517 F.3d at 1127 (citation omitted)(emphasis in original). The other plaintiffs have also established Article III standing, as evidenced by the attached declarations. See Pl. Exhs. 3-12. Each plaintiff has identified an injury resulting from the Library’s policies and practices. Many plaintiffs have identified class claims involving discrimination in pay
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and promotional opportunities. Other plaintiffs have identified individual, non-class claims over issues such as discriminatory discharge and harassment. Defendant’s assertion that Plaintiffs had not established standing was incorrect before this brief was filed, and it is indisputably in error now.
Defendant also asserts that “general allegations related to alleged discriminatory policies and practices are insufficient to maintain standing absent injury.” Def. Brief at 39. This assertion once again misses the point. As noted above, it is only after Defendant produces the electronic applicant flow data that Plaintiffs will be able to further refine their class claim. In the meantime, there is no question that Plaintiffs have identified specific instances of nonpromotions and unequal pay that are sufficient to confer standing. V. DEFENDANT HAS WAIVED ITS RES JUDICATA AFFIRMATIVE DEFENSE, AND
IN ANY EVENT THIS CASE DOES NOT INVOLVE THE SAME “NUCLEUS OF FACTS” AS COOK, WHICH ENDED IN DECEMBER 2002 A. Defendant’s Failure to Plead Res Judicata and Collateral Estoppel as
Affirmative Defenses in its Answer Waives Both Defenses Fed. R. Civ. P. 8(c)(1) expressly states that “[i]n responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including...estoppel [and]...res judicata[.]” (emphasis added) The D.C. Circuit held in Harris v. Secretary, U.S. Dept. Of Veterans, 126 F.3d 229, 345 (D.C. Cir. 1997) that Rule 8(c) “means what it says.” A defendant may not raise an affirmative defense in a dispositive motion, so that “[a] party's failure to plead an affirmative defense...generally ‘results in the waiver of that defense and its exclusion from the case.’” Harris, 126 F.3d at 343 (citation omitted)(emphasis added). The D.C. Circuit’s rule is noticeably stricter than other circuits, which do allow affirmative defenses to be raised in dispositive motions. Id. at 344
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(collecting cases from other circuits).8 Defendant’s pre-answer motion to dismiss filed on June 6, 2005 did not say a word about res
judicata or collateral estoppel. Likewise, Defendant’s answer to the original complaint, as well as the answers to the First and Second Amended Complaints, did not plead either affirmative defense. See Dkts. 17, 26, 29. Defendant has waived the assertion of either affirmative defense, and they are consequently “exclu[ded] from the case.”
Harris did note that a defendant may cure its waiver by filing an amended answer pursuant to Fed. R. Civ. P. 15(a). Harris, 126 F.3d at 344. Of course, Defendant has made no effort to cure its defective pleading. And even if Defendant did move to amend its answer, it would have no sound basis. When an amended complaint is the result of “undue delay” or would cause “undue prejudice to the opposing party,” it should not be granted. Harris, 126 F.3d at 344 (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). Defendant could have raised both affirmative defenses five years ago; any effort to do so at this late date would constitute “undue delay.” Moreover, Plaintiffs have expended significant time and resources throughout the past six years litigating this case. It would be wholly prejudicial to allow Defendant to terminate this case by asserting a defense that could have been raised at the very outset.
B. Because This Case Involves a Different Time Period and Different Set of Facts Than Cook, Res Judicata and Collateral Estoppel Do Not Apply
Defendant’s argument is sorely deficient even if it was properly before this Court. The D.C. Circuit has explained that:
8 Any argument by Defendant that Harris’s holding does not extend to res judicata would be frivolous. Even before Harris, the D.C. Circuit held that “[r]es judicata must be pleaded as an affirmative defense. Failure to so pled constitutes a waiver of the defense.” Poulin v. Bowen, 817 F.2d 865, 869 (D.C. Cir. 1987).
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Under the doctrine of res judicata, or claim preclusion, a subsequent lawsuit will be barred if there has been prior litigation (1) involving the same claims or cause of action, (2) between the same parties or their privies, and (3) there has been a final, valid judgment on the merits, (4) by a court of competent jurisdiction.
Smalls v. United States, 471 F.3d 186, 192 (D.C. Cir. 2006)
The question is whether Cook constitutes the “same...cause of action” as this case. The
Circuit has noted in this regard that:
“Whether two cases implicate the same cause of action turns on whether they share the same ‘nucleus of facts.’” Drake [v. FAA], 291 F.3d at 66 (quoting Page v. United States, 729 F.2d 818, 820 (D.C. Cir. 1984)). In pursuing this inquiry, the court will consider “‘whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage.'" I.A.M. Nat'l Pension Fund v. Indus. Gear Mfg. Co., 723 F.2d 944, 949 n. 5 (D.C. Cir. 1983) (quoting 1B J. MOORE, MOORE'S FEDERAL PRACTICE ¶ 0.410[1] (2d ed. 1983)).
Apotex, Inc. v. Food & Drug Admin., 393 F.3d 210 (D.C. Cir. 2004)(emphasis added).
There can be no dispute that the time periods in this case and Cook do not overlap. Cook was
filed in 1982, and settled in 1994. The Settlement Agreement bars only those claims that “arise out
of events occurring up to Final District Court approval of the Agreement.” Def. Exh. 4, at 22
(emphasis added).9 Defendant also concedes, as it must, that the oversight period in Cook ended on
December 1, 2002. Def. Brief at 5. Yet Plaintiffs brought their administrative class charge on May
28, 2004 - nearly ten years after Cook settled, and after the oversight period ended.
9 Defendant’s brief is misleading by selectively quoting the Settlement Agreement to state that “the class as a whole and each class member [were] bound by the doctrines of res judicata and collateral estoppel with respect to all such claims.” Def. Brief at 6. Defendant leaves out the previous sentence stating that the Agreement only applies to “events occurring up to Final District Court approval of the Agreement.”
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There is no authority supporting Defendant’s attempt to extend res judicata. The D.C. Circuit has consistently recognized that unlawful conduct occurring after a prior judgment or settlement is not barred by res judicata. Drake, 291 F.3d at 66 (res judicata did not bar second lawsuit, which was based on agency’s subsequent determination that airline violated regulation that was at issue in first lawsuit); Page, 729 F.2d at 820 (order dismissing 1972 lawsuit barred subsequent suit for activities up to 1972, but not for activities occurring through 1980).
This case by definition involves a “nucleus of facts” that occurred after the Cook settlement and oversight period, so that res judicata cannot bar Plaintiffs’ claims. Defendant’s argument - that the Cook settlement extends in perpetuity to bar subsequent Title VII class action claims - is devoid of logic and supporting authority. Were Defendant’s argument to prevail, an employer could reimplement unlawful employment activities once a consent decree or settlement agreement was no longer enforceable, and the parties to the original agreement would have no remedy. Nothing in Title VII or the principles underlying res judicata allow such a perverse result.
For the same reason that res judicata does not apply, collateral estoppel also does not bar Plaintiffs’ claims. The D.C. Circuit has held that collateral estoppel “must be confined to situations where the matter raised in the second suit is identical in all respects with that decided in the first proceeding.” Whelan v. Abell, 48 F.3d 1247, 1256 (D.C. Cir. 1995)(citing Commissioner v. Sunnen, 333 U.S. 591, 599-600 (1948)(emphases added). Defendant cannot credibly argue that the issues in this case beginning in 2004 are “identical in all respects” to the issues that were “decided” in the 1994 settlement agreement.10
10The primary case Defendant cites, Martin v. Dep’t of Justice, 488 F.3d 446, 454 (D.C. Cir. 2007), is easily distinguishable. The plaintiff had previously filed a FOIA lawsuit seeking a complete, unredacted document submitted to the FDIC, which a district court dismissed. The
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Defendant’s primary contention is that this Court’s September 2003 Order somehow bars Plaintiffs from challenging Defendant’s selection procedures and criteria. Def. Brief at 42, 49. There are any number of problems with Defendant’s argument, but three will suffice. First and foremost, this Court recognized during oral argument a few months ago that AVUE does not select employees. AVUE is merely computer software. Plaintiffs’ argument is that Defendant does not abide by the system it has implemented, and that it continues to favor non-African-American employees for selection.
Plaintiffs’ declarations demonstrate how this works. Plaintiff Mills noted that she interviewed for a position in 2005 with her supervisor, rather than with a three-person panel that the Library’s regulations require. Pl. Exh. 3, ¶10. Several plaintiffs noted that the Library still “preselects” individuals for certain promotions without posting them on AVUE, even though the Cook settlement was supposed to rectify this discriminatory practice. These facts directly undermine Defendant’s claim that its selection system is validated, and strongly counsel against Defendant’s collateral estoppel argument.
Even if Defendant was correct that AVUE was validated (which is not the case), this Court’s September 2003 Order would still not provide refuge. Under the disparate impact burden-shifting framework, plaintiffs can rebut an employer’s showing of job relatedness by showing “that other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer's legitimate interest in ‘efficient and trustworthy workmanship.’”Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975)(citation omitted); 42 U.S.C. § 2000e-2(k)(1)(A)(ii). Plaintiffs
D.C. Circuit held that the plaintiff was estopped from seeking the complete 1991 report again based on the prior ruling. Id. at 454.
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will still be able to rely on applicant flow data to show that less racially discriminatory alternatives exist.
Finally, the Uniform Guidelines note that “[t]he principles of disparate or unequal treatment must be distinguished from the concepts of validation.” 29 C.F.R. § 1607.11. The Civil Rights Act of 1991 likewise states that “[a] demonstration that an employment practice is required by business necessity may not be used as a defense against a claim of intentional discrimination under this subchapter.” 42 U.S.C. § 2000e-2(k)(1)(C)(2). Of course, Defendant has failed to “demonstrate” any business necessity to begin with.
Defendant simply cannot rebut Plaintiffs’ pattern or practice disparate treatment claim by hanging its hat on this Court’s September 8, 2003 Order. The D.C. Circuit noted in Palmer v. Schultz,815 F.2d at 101, that once plaintiffs make out a prima facie pattern or practice case, 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. In other words, once Plaintiffs point to statistically significant disparities in pay and promotion between African-American and white employees at the Library, Defendant must introduce evidence (such as differences in qualifications, for example) that provides a non-discriminatory explanation for these disparities. The Uniform Guidelines would be of no relevance to a pattern or practice rebuttal. C. Defendant’s Contention That the Cook Settlement Forecloses This Lawsuit is Directly Contrary to Its Position in March 2004, When it Informed Plaintiffs Mills and Ijeomah-Mills That Cook Did Not Apply Courts often judicially estop a party from asserting a position that is inconsistent with a
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Case 1:04-cv-02205-HHK -AK Document 177 Filed 05/03/10 Page 37 of 39 position asserted in a prior proceeding. The purpose of judicial estoppel is to prevent parties from “blow[ing] hot and cold as the situation demands.” Pennycuff v. Fentress County Bd. Of Educ., 404 F.3d 447, 453 (6th Cir. 2005)(citation omitted). Although judicial estoppel is not directly applicable in this case, there can be no question that Defendant has “blow[n] hot and cold” on the issue of res judicata.
Plaintiffs Mills and Ijeomah-Mills stated in their September 15, 2003 letter that the posting of vacancy announcement AT177527 was a violation of the Cook case. Pl. Exh. 1 The Library’s Inspector General, Karl Schornagel, responded in a March 1, 2004 that he “concur[s] with the Library’s General Counsel opinion on the nonapplicability of the Cook case.” Pl. Exh. 2. Yet Defendant is now contending that not only does Cook apply, it also forecloses Plaintiffs’ claims.
One can hardly find a more brazen example of a party asserting flatly inconsistent arguments as the situation demands. Plaintiffs could not agree more with Defendant’s own General Counsel, who stated in a July 2, 2003 letter to the Cook Class Steering Committee members “that the Cook case expired by its own terms on December 1, 2002.” Pl. Exh. 2. That Defendant has shifted onehundred-eighty-degrees from this prior position is simply deplorable.
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CONCLUSION For the foregoing reasons, this Court should deny Defendant’s Motion to Dismiss or, Alternatively, for Summary Judgment.
Respectfully submitted, /s/ David L. Rose David L. Rose Joshua N. Rose Yuval Rubinstein ROSE & ROSE P.C. 1320 19th Street, N.W. Suite 601 Washington, D. C. 20036 (202) 331-8555 Fax: (202) 331-0996 daver@roselasyers.com josh@roselawyers.com yrubinstein@roselawyers.com . Date: May 3, 2010 Attorneys For Plaintiffs
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CERTIFICATE OF SERVICE I hereby certify that on this 3rd day of May, 2010, the foregoing Memorandum was filed via Electronic Case Filing. A true and correct copy of the foregoing was served, via ECF, upon: Julia K. Douds Special Assistant United States Attorney U.S. Attorney’s Office for the District of Columbia, Civil Division 555 4th Street, N.W. Washington, D.C. 20530 Beverly M. Russell Assistant U.S. Attorney Office of the United States Attorney for the District of Columbia, Civil Division 555 Fourth St., N.W., Rm. E-4915 Washington, D.C. 20530 /s/Yuval Rubinstein Yuval Rubinstein
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 Case 1:04-cv-02205-HHK -AK Document 154 Filed 01/05/10 Page 1 of 4

UNITED STATES DISTRICT COURT

DISTRICT OF COLUMBIA

______________________________

CHRISTINE MILLS, et. al.

)

)

Plaintiffs, )

)

v.

) Civil Action No. 04-2205 (HHK/AK)

)

JAMES BILLINGTON, Librarian, )

Library of Congress

)

)

Defendant. )

______________________________)

MEMORANDUM ORDER1 Pending before the Court is Plaintiffs’ Motion to Direct Defendant to Preserve Data and Documents [144] and Defendant’s Opposition thereto [152]. For the reasons set forth below, Plaintiffs’ Motion is denied. I. Background Plaintiffs are minority employees of the Library of Congress who brought suit on behalf of themselves and “as representatives of a class of all minority job applicants and all past, current, and future minority employees of the Library of Congress.” (2d Am. Compl. [28] ¶¶ 12.) Plaintiffs allege that Defendant James Billington, the Librarian of Congress, “engaged in an ongoing pattern and practice of discrimination against its minority employees” regarding compensation, promotions, wage classifications, job assignments, and recruitment. (Id. ¶ 2(a)(d).)

1
United States District Judge Henry H. Kennedy referred this matter to the undersigned Magistrate Judge for all discovery-related motions, pursuant to Local Civil Rule 72.2(a). (See Order of Referral to United States Magistrate Judge [39].)
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Discovery closed on September 30, 2009. A Motion for Class Certification was due at that same time, but has been put on hold while the Court resolves several lingering discovery matters. (See Minute Order dated 09/29/09.) Defendant recently requested a stay of the pending discovery matters so that he may file a motion to dismiss based on res judicata. (See Mot. for Briefing Sched. & Stay of Pending Discovery Issues [142].) This request is currently pending before Judge Henry Kennedy . In the meantime, several discovery disputes remain pending.
On December 1, 2009, Plaintiffs filed a Motion to Direct the Defendant to Preserve Data and Documents. (See Pls. Mot. to Direct Def. to Preserve Data & Docs. [144].) Plaintiffs request this Court to order Defendant to preserve data and documents that are subject to their motion to compel or that may be relevant to claims they assert in this case and claims of the putative class if their motion for class certification is granted. (Id.) Specifically, Plaintiffs request that Defendant preserve (1) electronic personnel data and emails maintained at the National Finance Center2; (2) data maintained in the AVUE system; and (3) data and documents Defendant maintains related to merit selections at the Library of Congress. (Id. at 1-2.)
With respect to the first category of documents, Defendant asserts that the Library of Congress does not have control over the data maintained by the National Finance Center and, therefore, cannot ensure the preservation of the data. (Opp’n to Mot. to Direct Def. to Preserve Data & Docs. [152] at 2.) As to the second and third categories, Defendant asserts that AVUE and the Library of Congress are already maintaining that data and those documents dating back to
2 Plaintiffs indicate they are seeking preservation of data at the “National Data Center” in New Orleans. Both this Court and Defendant presume Plaintiffs meant the “National Finance Center” located in New Orleans. The National Finance Center performs personnel and payroll transaction processing for the Library of Congress and many other federal agencies.
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2003 and will continue to do so. (Id. at 2-3.) Defendant states that a litigation hold has already been placed on these files and that this fact has been communicated to Plaintiffs numerous times. (Id. at 3.) As such, Defendant argues that these requests are moot. (Id.)
Additionally, Defendant argues that Plaintiffs failed in their duty to meet and confer pursuant to Local Rule 7(m) prior to filing their motion with this Court. (Opp’n at 1.) In their motion, Plaintiffs state that pursuant to Local Rule 7(m), Plaintiffs’ counsel contacted the Defendant who“declined to agree to this motion on the grounds that it was ‘premature.’” (Pls. Mot. at 1 fn.1.) In its opposition, however, Defendant submits the email communication between Plaintiffs’ and Defendant’s counsel, which reveals that Defendant believed the motion was premature because the parties had yet to meet and confer on the matter. (Opp’n at 1-2 & Ex. 1.) In the email, Defendant’s counsel suggests “scheduling a conversation between the parties to attempt to reach an agreement before troubling the Court with any additional filings.” (Id. at Ex. 1.) Defendant’s counsel never received a response from Plaintiffs’ counsel, and Plaintiffs instead went forward with filing the motion on December 1. (Id. at 1-2.) II. Discussion
Local Rule 7(m) states: “Before filing any nondispositive motion in a civil action, counsel shall discuss the anticipated motion with opposing counsel, either in person or by telephone, in a good-faith effort to determine whether there is any opposition to the relief sought and, if there is opposition, to narrow the areas of disagreement.” As shown by the evidence that Defendant submits, Plaintiffs have failed to meet the requirements of Local Rule 7(m). “The entire purpose of the meet-and-confer rule is to force litigants to attempt to resolve, or a least narrow, the disputed issues to prevent the unnecessary waste of time and effort on any given
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motion. The purpose of the rule is not to simply determine whether the motion will be opposed.” Alexander v. FBI, 186 F.R.D. 197, 199 (D.D.C. 1999). Defendant’s counsel was willing and able to meet with Plaintiffs’ counsel to resolve or narrow this issue before Plaintiffs’ had to resort to court intervention. Defendant’s efforts to resolve this matter prior to filing were, however, simply ignored. Therefore, this Court will deny the motion without prejudice. Plaintiffs may file again after they have made a good faith effort to meet and confer with Defendant on this matter.
Although this Court will not address the merits of this motion, it does note that based on Defendant’s opposition, it appears this matter can be resolved without further court intervention. Defendant states that it is already maintaining and preserving the documents in question dating back to 2003 that are maintained by both AVUE and the Library of Congress. As such, this Court strongly urges the parties to resolve this matter on their own. III. Conclusion
For the foregoing reasons, it is this 5th day of January, 2010, hereby ORDERED that Plaintiffs’ Motion to Direct Defendant to Preserve Data and Documents is denied without prejudice.
_________________/s/_________________ ALAN KAY UNITED STATES MAGISTRATE JUDGE
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CHRISTINE MILLS, et al. Plaintiffs,
v. JAMES BILLINGTON, Librarian, Library of Congress,
Defendant.

Civil Action No. 04-2205 (HHK)(AK)

REPORT AND RECOMMENDATION The trial court referred this matter to the undersigned pursuant to Local Civil Rule 72.3(a) for a Report and Recommendation on Plaintiffs’ Motion for an Injunction to Require Defendant to Compile and Publish Annual Equal Employment Opportunity Plans and Related Reports and As Required by Title VII. (See [149] Order dated 12/17/09.) Based on the submissions of the Plaintiffs and Defendant and upon the arguments presented at the hearing held before the undersigned on January 20, 2009, the undersigned recommends that the trial court deny this motion for the reasons set forth below. I. BACKGROUND Plaintiffs are minority employees of the Library of Congress (“LOC” or “the Library”) who brought suit on behalf of themselves and “as representatives of a class of all minority job applicants and all past, current, and future minority employees of the Library of Congress.” (2d Am. Compl. [28] ¶¶ 1-2.) Plaintiffs allege that Defendant James Billington, the Librarian of

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Congress, “engaged in an ongoing pattern and practice of discrimination against its minority employees” regarding compensation, promotions, wage classifications, job assignments, and recruitment. (Id. ¶ 2(a)-(d).) Plaintiffs further allege that Defendant creates a hostile work environment for minority employees and retaliates against those employees who complain about these discriminatory practices. (Id. ¶ (2(e)-(f).)
This suit was initiated on December 20, 2004. (See Compl. [1] filed 12/20/04.) Discovery closed on September 30, 2009, after many delays and extensions. (See Minute Order dated 09/02/09.) A motion for class certification was due at that time, but has been temporarily stayed while several discovery disputes remain pending. (See Minute Order dated 09/29/09.) Additionally, Defendant has filed a motion to stay the pending discovery disputes so that he might pursue a partial motion to dismiss based on res judicata. (See Mot. for Briefing Sched. & Stay of Pending Discovery Issues [142] filed 11/19/09.) That motion to stay is currently pending before the trial court.
On October 30, 2009, Plaintiffs filed this motion now before the undersigned asking the Court to issue an injunction requiring the Library of Congress to comply with its statutory duties under § 717(b) of Title VII, as amended, 42 U.S.C. § 2000e-16(b). (See Plts. Mot. for an Injunction [137] at 1.) Specifically, that provision provides, in pertinent part:
. . . The [Librarian of Congress]1 shall–
1Title VII vests the EEOC with authority to carry out enforcement of the nondiscrimination provisions of Title VII as applied to the federal government. See 42 U.S.C. § 2000e-16(a) & (b). However, the statute contains a carve out for the LOC and, with respect to employment in the LOC, vests the Librarian of Congress with all the authorities the EEOC is granted under the statute. See 42 U.S.C. § 2000e-16(b); see also Hackley v. Roudebush, 520 F.2d 108, 131-32 & n.86 (D.C. Cir. 1975).
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(1) be responsible for the annual review and approval of a national and regional equal employment opportunity plan which each department and agency and each appropriate unit referred to in subsection (a) of this section shall submit in order to maintain an affirmative program of equal employment opportunity for all such employees and applicants for employment; (2) be responsible for the review and evaluation of the operation of all agency equal employment opportunity programs, periodically obtaining and publishing (on at least a semiannual basis) progress reports from each such department, agency, or unit; and (3) consult with and solicit the recommendations of interested individuals, groups, and organizations relating to equal employment opportunity. 42 U.S.C. § 2000e-16(b). Plaintiffs allege that Defendant has not complied with the requirements of this provision since 2004. Plaintiffs raise this claim for the first time in this motion for an injunction. It is clear from the record that Defendant has failed to comply with the requirements of 42 U.S.C. § 2000e-16(b)(1)-(2). The Library’s most recent EEO plan was published in September 2004, the same year this lawsuit was initiated. (See Memo. in Support of Plts. Mot. for Injunction [137] at 2.) Since then, the Library has failed to compile and publish an annual EEO plan and the required semi-annual progress reports. (Id. at 3.) Plaintiffs seek an injunction requiring Defendant to (1) compile and publish an annual EEO plan and semi-annual progress reports for fiscal years 2005-2009; (2) consult with and solicit recommendations from interested individuals; and (3) compile and publish EEO plans and semi-annual progress reports for 2010 and each year thereafter. (Plts. Mot. for Injunction [137] at 1.) Defendant initially opposed this motion on the grounds that Plaintiffs failed to set forth and meet the standard for granting an injunction. (See Def. Opp’n to Plts. Mot. for Injunction [141] at 1-3.) After the initial briefing, the undersigned ordered the parties to address the issue of standing. (See Minute Order dated 01/08/10.) In its supplemental brief, Defendant argues that
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Plaintiffs have failed to show they have standing to pursue this claim. (Def. Supp. Brief [155] at 2-5.) Defendant additionally asserts that as to § 2000e-16(b), Defendant has not waived its sovereign immunity and that Plaintiffs, therefore, have no judicial recourse to enforce that provision. (Id. at 5-6.) The undersigned heard oral argument on these issues on January 20, 2009. The undersigned now recommends that the trial court deny Plaintiffs’ motion for an injunction on the following grounds. II. ANALYSIS
At this time, the undersigned is not considering the merits of this motion for an injunction because the undersigned finds there are several jurisdictional hurdles that Plaintiffs are unable to clear. First, the undersigned finds that the Library has not waived its immunity to suit with respect to 42 U.S.C. § 2000e-16(b). The undersigned further finds that Plaintiffs do not have standing to enforce the provisions of § 2000e-16(b) because they are unable to show they have suffered an “injury in fact” that would be likely redressable by an injunction from this Court. Finally, even if the trial court finds that Plaintiffs have cleared these jurisdictional hurdles, Plaintiffs must first move to amend their complaint before this claim can be heard by the Court.
A. Sovereign Immunity Sovereign immunity is a judicial doctrine that prevents the federal government from being sued unless it has waived its immunity or consented to suit. FDIC v. Meyer, 510 U.S. 471, 475 (1994). Plaintiffs seek an injunction requiring Defendant to comply with Title VII’s statutory requirement to compile and publish annual EEO plans and semi-annual progress reports and to consult with and solicit recommendations from interested individuals. See 42 U.S.C. § 2000e-16(b). The question is whether Plaintiffs’ claims for relief are barred by sovereign
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immunity. Title VII prohibits discrimination on the basis of race, color, religion, sex, or national
origin in federal employment. See 42 U.S.C. § 2000e-16(a). Title VII explicitly waives the federal government’s sovereign immunity and creates a private right of action for federal employees to challenge unlawful employment practices, upon exhaustion of administrative remedies. See 42 U.S.C. § 2000e-16(c). In granting this right, § 2000e-16(c) explicitly incorporates § 2000e-16(a), but nowhere does it mention § 2000e-16(b):
Within 90 days of receipt of notice of final action taken by a department, agency, or unit referred to in subsection (a) of this section, or by the Equal Employment Opportunity Commission upon an appeal from a decision or order of such department, agency, or unit on a complaint of discrimination based on race, color, religion, sex or national origin, brought pursuant to subsection (a) of this section, Executive Order 11478 or any succeeding Executive orders . . . an employee or applicant for employment, if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action as provided in section 2000e-5 of this title, in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant. 42 U.S.C. § 2000e-16(c) (emphasis added). This provision makes clear that sovereign immunity is waived only as to complaints of discrimination based on race, color, religion, sex, or national origin that are brought under § 2000e-16(a). Plaintiffs fail to identify any express or implied waiver of the Library’s sovereign immunity with respect to § 2000e-16(b). Furthermore, no unlawful employment practices are being alleged in this motion for an injunction. Plaintiffs are instead alleging that Defendant failed to act as required by § 2000e16(b) – i.e., failed to compile and publish EEO reports and plans. Under the doctrine of sovereign immunity, a plaintiff cannot sue the United States or its officials unless Congress has unequivocally waived sovereign immunity by statute. FDIC v. Meyer, 510 U.S. at 475-76; see also Bagenstose v. District of Columbia, 503 F. Supp. 2d 247, 255 (D.D.C. 2007), aff’d, 20008,
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WL 2396183 (D.C. Cir. 2008). Where Congress has waived the federal government’s immunity from suit under Title VII, it has done so explicitly and only under specific circumstances. Bagenstose, 503 F. Supp. 2d at 255. Most prominently, the federal government can be sued where it “acts as an employer.” Bagenstose, 503 F. Supp. 2d at 255; Darbeau v. Library of Congress, 453 F. Supp. 2d 168, 170 (D.D.C. 2006); see also 42 U.S.C. § 2000e-16(c). However, “Title VII does not vest federal courts with jurisdiction over suits against the [federal government] for other causes, such as agency inaction.” Darbeau, 453 F. Supp. 2d at 170. Here, the Librarian’s failure to comply with § 2000e-16(b) does not fall within its role as Plaintiffs’ “employer,” but instead amounts to a general agency action – or, more specifically, inaction. Thus, this court appears to have no subject matter jurisdiction over this claim.
Despite this, the D.C. Circuit has held that sovereign immunity does not bar suits for injunctive relief against government officials where the challenged action is “alleged to be unconstitutional or beyond statutory authority.”2 Clark v. Library of Congress, 750 F.2d 89, 102 (D.C. Cir. 1984) (seeking non-monetary relief for the Librarian’s alleged violation of the First Amendment); see also American Council of the Blind v. Boorstin, 644 F. Supp. 811, 814-15 (D.D.C. 1986) (same). Here, the Plaintiffs are not alleging that the Librarian’s actions are unconstitutional, rather they allege the Librarian has not complied with the statutory requirements under § 2000e-16(b). However, the Librarian’s failure to comply with all the statutory
2Although the1976 amendments to § 702 of the Administrative Procedures Act (APA), 5 U.S.C. § 702, eliminated the sovereign immunity defense in virtually all actions for nonmonetary relief against a federal government agency or officer acting in official capacity, this broad waiver of sovereign immunity does not apply to the Library of Congress. See Clark v. Library of Congress, 750 F.2d 89, 102 (D.C. Cir. 1984). The Library of Congress is not an “agency” as defined under the APA. See 5 U.S.C. § 701(b)(1)(A) (excluding Congress from the definition of agency).
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requirements of Title VII – specifically, the publishing and consulting provisions of § 2000e16(b) – is not an act “beyond [the Librarian’s] statutory authority.” See Clark, 750 F.2d at 102. His actions, therefore, do not fall under this exception to the sovereign immunity doctrine.
Accordingly, the undersigned recommends that this motion for injunction be denied because this Court lacks subject matter jurisdiction to issue the injunction.
B. Standing The undersigned also recommends dismissing this case because Plaintiffs do not have standing to enforce the provisions of § 2000e-16(b). The doctrine of standing promotes the separation of powers and increases judicial efficiency and fairness by restricting the availability of individuals who can bring a matter to the court for adjudication. The Supreme Court has identified three basic constitutional requirements for individual standing. For individuals to have standing, they must establish: (1) that they have suffered an “injury in fact;” (2) that there is a “causal connection between the injury” and the “challenged action of defendant;” and (3) that the injury will “likely” be “redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); see also Center for Biological Diversity v. Department of Interior, 563 F.3d 466, 477 (D.C. Cir. 2009) (reiterating the test set forth in Lujan). The plain language of Title VII gives standing to minority plaintiffs who have been aggrieved by an employer’s unlawful employment practices. See 42 U.S.C. § 2000e-5 (private sector employees); § 2000e-16 (federal government employees); see also Gray v. Greyhound Lines, East, 545 F.2d 169, 175-76 (D.C. Cir. 1976) (holding that the plaintiffs had standing because they claimed they were aggrieved by the employer’s alleged illegal hiring practices).
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What is unclear is whether minority plaintiffs have standing to enforce the publishing and consulting provisions of § 2000e-16(b). “The party invoking federal jurisdiction bears the burden of establishing [the constitutional requirements for standing].” Lujan, 504 U.S. at 561. The undersigned find that Plaintiffs are unable to meet the first and third requirements for constitutional standing.
1. Injury in Fact An “injury in fact” is an “invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (internal quotation marks and citations omitted). The Supreme Court has long recognized that violations of rights created by statute are sufficient to confer standing. See, e.g., Warth v. Seldin, 422 U.S. 490, 514 (1975). However, a plaintiff’s general interest in seeing that the government carries out its statutory duties is not enough to confer standing. Freedom Republicans, Inc. v. FEC, 13 F.3d 412, 415 (D.C. Cir. 1994). Instead, a plaintiff must show a personal, concrete injury. See FEC v. Akins, 524 U.S. 11, 20-21 (1998). Here, Plaintiffs argue they “have standing to seek information that should be filed and published annually, because Congress granted broad standing to private plaintiffs.” (Memo. in Support of Plts. Mot. for Injunction [137] at 12.) They claim they have “suffered a cognizable injury by denial of their statutory right to information and participation in the affirmative action plan process.” (Plts. Supp. Brief on Standing [156] at 2-7.) Defendant disagrees and argues that Plaintiffs have suffered no “direct injury.” (Def. Supp. Brief [155] at 2-3.) The Supreme Court has held that Congress can, by statute, create a right to information and that the denial of such information is an injury sufficient to satisfy Article III standing
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requirements.3 FEC v. Akins, 524 U.S. at 21. Even if the harm is widely shared, as long as it is concrete and specific, standing will be conferred. Id. at 24-25. Additionally, the D.C. Circuit and this Court have found “a denial of access to information can work an ‘injury in fact’ for standing purposes, at least where a statute . . . requires that the information ‘be publicly disclosed’ and there ‘is no reason to doubt [plaintiff’s] claim that the information would help them.’” Ethyl Corp. v. EPA, 306 F.3d 1144, 1148 (D.C. Cir. 2002) (quoting Akins, 524 U.S. at 21); see also Friends of Animals v. Salazar, 626 F. Supp. 2d 102, 111-12 (D.D.C. 2009); American Historical Ass’n v. National Archives & Records Admin., 310 F. Supp. 2d 216, 227-28 (D.D.C. 2004). This “informational standing” arises where a statutory provision has “explicitly created a right to information.” Animal Legal Defense Fund v. Epsy, 23 F.3d 496, 502 (D.C. Cir. 1994) (emphasis added).
The question here is whether 42 U.S.C. § 2000e-16(b) “explicitly” grants Plaintiffs a right to information. In Friends of Animals v. Salazar, Judge Henry H. Kennedy made the distinction between a statute that requires information to be published and a statute that requires information to be made available to the public, finding only the latter to confer standing. 626 F. Supp. 2d at 113. In that case, organizational plaintiffs sought to enforce the requirements of the Endangered Species Act – specifically, the Secretary of the Interior’s compliance with the requirements of subsections 10(c) and 10(d) in granting permits or exceptions to prohibitions concerning
3While Plaintiffs also assert that they were injured because Defendant did not consult with them as an “interested group”under § 2000e-16(b), there is nothing in the statute or case law that would suggest the Library had an affirmative duty to consult these particular Plaintiffs or that Title VII gave these Plaintiffs a statutory right to be consulted. Therefore, the undersigned will not address this alleged harm and confines its analysis to the allegations that Plaintiffs were denied a right to the information that § 2000e-16(b)(1)-(2) required the Librarian to publish.
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endangered species. Id. at 106, 11-113. Subsection 10(c) requires that information received by the secretary with an application for a permit or exception “shall be available to the public as a matter of public record at every stage of the proceeding.” Id. at 106 (quoting 16 U.S.C. § 1539(c)). In contrast, subsection 10(d) states that the Secretary may grant exceptions “only if he finds and publishes his findings in the Federal Register . . .” Id. (quoting 16 U.S.C. § 1539(d)).
As to subsection 10(c), this Court found that the plaintiffs did suffer an “injury in fact” because the information was not “publicly disclosed” as the statute requires, and the plaintiffs had shown that their harm was “specific and concrete because they regularly use the information . . . to participate in the subsection 10(c) process and to inform their members.” 626 F. Supp. 2d at 111-12. Conversely, this Court found that the plaintiffs suffered no direct injury by the Secretary’s noncompliance with subsection 10(d):
Importantly, the information provided in subsection 10(c) is necessary for plaintiffs to meaningfully participate in the section 10 process, and therefore deprivation of that information causes a specific, concrete, actual and imminent injury. By contrast, the findings in subsection 10(d) are published at the conclusion of the section 10 process following the mandated public process. While plaintiffs argue that such findings are necessary for them to ask the [defendant] to reconsider its decision or to challenge the [defendant’s] decision in court, this is not an injury to their ability to participate in the section 10 process, but instead reveals a more general interest in the law being followed. Id. at 113. The undersigned finds Friends of Animals to be analogous here. Like the plaintiffs in Friends of Animals trying to enforce the § 10(d) requirements that the Secretary publish her findings, Plaintiffs here seem to have a “more general interest in the law being followed” as opposed to having suffered a “specific, concrete, actual and imminent injury.” 626 F. Supp. 2d at 113. While § 2000e-16(b) creates an affirmative duty on the Librarian of Congress to gather and
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publish information concerning the Library’s EEO plans and progress, Plaintiffs have not shown how the Librarian’s noncompliance has specifically harmed them. In fact, Plaintiffs admit that they did not rely on any of the reports published in 2004 or earlier in forming and assessing their discrimination claims against the Librarian. (01/20/10 Hr’g Tr. [161] at 7-8.) Plaintiffs also admit they were unaware that Defendant had not complied with § 2000e-16(b) until 2009, five years after the Librarian had stopped gathering the data and publishing the EEO reports and semiannual progress reports. (01/20/10 Hr’g Tr. [161] at 9-10.)
Although Plaintiffs claim the information in the reports and any underlying data used to compile them would be useful in pursuing their discrimination claims (see, e.g., 01/20/10 Hr’g Tr. [161] at 8, 15), they have been unable to show how they have been harmed by the lack of information. This is unlike plaintiffs in Friends of Animals where the court found an “injury in fact” because the plaintiffs regularly used the information to which they had a statutory right under § 10(c). Friends of Animals, 626 F. Supp. 2d at 112.
Furthermore, § 2000e-16(b) merely requires that the Librarian gather and publish information on the Library’s EEO plans and progress. There is nothing in the statute that explicitly requires the data be made available to the public – a distinction this court makes in Friends of Animals. See 626 F. Supp. 2d at 113. This, combined with the fact that Plaintiffs have failed to show how they have been directly harmed, shows that Plaintiffs cannot meet the “injury in fact” requirement for standing.
2. Redressability Assuming arguendo that the trial court were to find there was an “injury in fact” to Plaintiffs, they are unable to show their injury will “likely” be redressed “by a favorable decision” of this court. Redressability is satisfied if it is “likely, as opposed to merely speculative
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that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 561 (internal quotations omitted).
Plaintiffs are seeking the same statistical data that was included in the Library’s 2004 Report. (See Plts. Mot. for Injunction at 4.) This information can be sought through the normal litigation process and, in fact, is the subject of several pending discovery disputes. (See Plts. Mot. to Compel Discovery [129] filed 08/28/09.) If the data exists, there is a possibility Plaintiffs will receive this information through the normal discovery process. Furthermore, the language of § 2000e-16(b) does not require the Library to include the type of statistical data it chose to include in its 2004 report.4 Thus, even if this Court were to issue an injunction requiring the Librarian to compile and publish the delinquent and future reports, that is no guarantee that the reports will contain the statistical data Plaintiffs say they need and have been injured by not having. Therefore, it is more speculative than likely that an order requiring the Librarian to comply with § 2000e-16(b) will redress Plaintiffs’ alleged harm.
Accordingly, the undersigned finds that Plaintiffs do not meet the basic constitutional standing requirements because they are unable to show they have suffered an injury in fact under § 2000e-16(b) that would likely be redressed by an injunction from this Court.
C. Amending the Complaint Plaintiffs raise this claim under 42 U.S.C. § 2000e-16(b) for the first time in their motion for an injunction and the memorandum in support thereof – almost five years after they filed their complaint. In that motion, they charge that the Librarian has failed to comply with § 2000e-16(b) since 2005, acts which take place after this lawsuit was initiated in 2004. (Memo. in Support of
4 Section 2000e-16(b) merely requires the Librarian to “review and approv[e]” and to periodically “obtain[] and publish[] (on at least a semiannual basis) progress reports” on the Library’s “equal employment opportunity plan.” 42 U.S.C. § 2000e-16(b)(1)-(2).
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Plts. Mot. for Injunction [137] at 1.) Plaintiffs state that the Librarian’s failure to perform its statutory duty under § 2000e-16(b) was not alleged in the amended complaint “because that failure did not become an apparent violation until after the filing of this suit.” (Id. at 13.) In fact, at the hearing before the undersigned, Plaintiffs admit they did not become aware of this failure until 2009. (01/20/10 Hr’g Tr. [161] at 9-10.) However, Plaintiffs have not moved this Court to amend their complaint to add this specific claim. Assuming arguendo that the trial court finds that Plaintiffs clear the jurisdictional hurdles address above, the undersigned now addresses whether this claim is properly before this Court.
“The traditional practice of this Court has been to disregard ‘claim[s] asserted for the first time in a memorandum of law’ because those claims ‘[were] not made in the [plaintiff's] original complaint or advanced in a motion to amend.’” Tunica-Biloxi Tribe of La. v. United States, 577 F. Supp. 2d 382, 411 (D.D.C. 2008) (quoting Hamilton v. Paulson, 542 F. Supp. 2d 37, 61 (D.D.C. 2008)); see also Kilpatrick v. Paige, 193 F. Supp. 2d 145, 158 (D.D.C. 2002). However, in 2007, the D.C. Circuit ruled that it was inappropriate to strike a claim raised for the first time in a memorandum of law if “[t]he factual basis for [the plaintiff's] ‘new’ claim was substantially similar to [the plaintiff's properly raised claim] and [the defendant] did not demonstrate that allowing [the plaintiff's] claim would cause undue prejudice.” Wiley v. Glassman, 511 F.3d 151, 159 (D.C. Cir. 2007). This Court nevertheless held that it is proper to dismiss a claim raised for the first time in a memorandum of law, and that dismissal would not run afoul of Wiley, so long as the court afforded the plaintiff leave to amend the complaint to include the newly alleged claim. Hamilton, 542 F. Supp. 2d at 62-63.
It is unclear to the undersigned whether the factual basis for Plaintiffs’ new claim is “substantially similar” to the claims raised in their amended complaint. See Wiley, 511 F.3d at
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159. Nevertheless, because this claim was raised first in Plaintiffs’ motion for an injunction and their supporting memorandum of law, the undersigned recommends that this motion be dismissed without prejudice with leave for Plaintiffs to file a motion to amend their complaint. See Hamilton, 542 F. Supp. 2d at 62-63. The undersigned will not speculate whether it would be proper for Plaintiffs to amend their complaint to bring this claim at this time – an issue that has not been briefed. III. RECOMMENDATION
For the foregoing reasons, and in accordance therewith, the undersigned recommends that Plaintiffs’ Motion for an Injunction to Require Defendant to Compile and Publish Annual Equal Employment Opportunity Plans and Related Reports and As Required by Title VII be denied. IV. REVIEW BY THE DISTRICT COURT
The parties are hereby advised that under the provisions of Local Rule 72.3 (b) of the United States District Court for the District of Columbia, any party who objects to the Report and Recommendation must file a written objection thereto with the Clerk of this Court within 14 days of the party’s receipt of this Report and Recommendation. The written objections must specifically identify the portion of the report and/or recommendation to which objection is made, and the basis for such objections. The parties are further advised that failure to file timely objections to the findings and recommendations set forth in this report may waive their right of appeal from an order of the District Court that adopts such findings and recommendation. See Thomas v. Arn, 474 U.S. 140 (1985).

02/17/2010 DATE

/s/ ALAN KAY UNITED STATES MAGISTRATE JUDGE
- 14 -

 
 Case 1:04-cv-02205-HHK -AK Document 155 Filed 01/14/10 Page 1 of 7

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________

Christine Mills et. al.,

)

)

Plaintiffs

)

)

v.

)

) Civil Action No. 04-2205 (HHK/AK)

James Billington, Librarian,

)

Library of Congress,

)

)

Defendant.

)

______________________________)

DEFENDANT’S SUPPLEMENTAL BRIEF AS TO PLAINTIFF’S LACK OF STANDING TO SEEK INJUNCTIVE RELIEF TO COMPEL DEFENDANT TO PRODUCE
EQUAL EMPLOYMENT OPPORTUNITY AND RELATED REPORTS

On October 30, 2009, Plaintiffs moved for an injunction to require Defendant to compile

and publish annual Equal Employment Opportunity (“EEO”) plans and related reports pursuant

to 42 U.S.C. § 2000e-16(b). Defendant opposed Plaintiffs’ motion on the straightforward

argument that Plaintiffs failed to demonstrate any of the four factors for obtaining an injunction.

See Chaplaincy of Full Gospel Churches v. England, 454 F. 3d 290, 297 (D.C. Cir. 2006)(In

considering a request for an injunction, the court looks at four factors: (1) plaintiffs’ likelihood of

success on the merits; (2) irreparable harm to the plaintiffs if the injunction is not granted;

(3) substantial harm to the defendants if the injunction is granted; and (4) the public interest.) On

January 8, 2010, this Court ordered Defendant to file supplemental briefing on the issue of

“standing” on Plaintiffs’ motion. The issue of standing is a threshold one for the courts, for a

plaintiff who does not establish “standing” to bring a claim does not present a “case” or

“controversy” of which a federal court may take jurisdiction within the limits of Article III of the

Case 1:04-cv-02205-HHK -AK Document 155 Filed 01/14/10 Page 2 of 7
U.S Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-560 (1992). Defendant respectfully submits that Plaintiffs lack standing to seek the requested relief.
ARGUMENT I. Plaintiffs Lack Standing.
In Lujan v. Defenders of Wildlife, the Supreme Court held that “the irreducible constitutional minimum of standing contains three elements.” 504 U.S. at 560. To establish standing, a plaintiff must have suffered an “injury in fact” – an invasion of a legally protected interest that is (a) concrete and particularized; and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Id. (citations and internal quotations omitted). Second, there must also be a “causal connection between the injury and the conduct complained of– the injury has to be fairly . . . trace[able] to the challenged action of defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.” Id. (citations and internal quotations omitted). Finally, it must be “likely” as opposed to “speculative” that the injury can be redressed by a favorable decision. Id. “This triad of injury in fact, causation, and redressability constitutes the core of Article III’s case-or-controversy requirement, and the party invoking federal jurisdiction bears the burden of establishing its existence.” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 103 (1998). Plaintiffs here fail to meet their burden.
As a threshold matter, Plaintiffs cannot demonstrate the “injury in fact” required for standing. “The Supreme Court has instructed that [courts] may not entertain suits alleging generalized grievances that agencies have failed to adhere to the law, but must instead focus on concrete and particularized harm.” Freedom Republicans, Inc. v. Federal Election Comm’n, 13 F.3d 412, 415 (D.C. Cir. 1994). Plaintiffs admit that they “may not suffer a direct injury”
2

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from Defendant’s failure to publish the requested reports. Pls.’ Mem. at 14. With this admission, Plaintiffs unequivocally demonstrate their lack of standing. Of course, failing to show injury, Plaintiffs cannot show causation and redressability. As to causation, courts have found this factor lacking where the causal chain of events leading to a claimant’s alleged injury is “so attenuated” that the alleged injury cannot be “‘fairly traceable’” to the acts of the Defendant. Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1161 (D.C. Cir. 2005) (evaluating causation in procedural standing context). Again, Plaintiffs have expressly alleged no injury so there is no causation - no harm “fairly traceable” to the acts of Defendant. Similarly, Plaintiffs cannot demonstrate redressability. This prong of the standing inquiry requires the court to ask: “‘[I]f plaintiffs secured the relief they sought, … would [it] redress their injury’?” Wilderness Soc’y v. Norton, 434 F.3d 584, 590 (D.C. Cir. 2006) (quoting Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1233 (D.C. Cir. 1996) (alterations in original). Plaintiffs cannot show a substantial likelihood that the relief sought would redress any injury because they have alleged none.
Notably, none of the cases on which Plaintiffs rely help them given their lack of injury, and indeed the cases appear to be inapposite. Pls.’ Mem. at 2 and 12. Three of the cases address remedial relief after a finding of discrimination. In the case, Thomas v. Washington County School Board, 915 F.2d 922, 925 (4th Cir. 1990), the Court enjoined the defendant from engaging in discriminatory acts – specifically, nepotism and limiting the posting of job announcements. Similarly, in Shirey v. Devine, 670 F.2d 1188 (D.C. Cir. 1982), it was noted that courts have authority to fashion remedial relief, similar to that the Equal Employment Opportunity Commission (“EEOC”) could impose by order or regulation, upon a finding that the
3

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federal employer intentionally engaged in discrimination. 670 F.2d at 1199, n. 32 (citation omitted). Also, in United States v. Fairfax County, VA, 629 F.2d 932, 941-42 (4th Cir. 1980), the Fourth Circuit held that, to the extent the district court found that the defendant had engaged in discriminatory acts, it (the district court) was under “a duty to render a decree to eliminate past discrimination and bar future discrimination.” As part of the remedy, the district court, the Fourth Circuit held, should have granted injunctive relief against future discrimination including requesting that the defendant comply with the record keeping and disclosure requirements of existing law. Id.
In the case, Cleveland Branch, National Association for the Advancement of Colored People v. City of Parma, Ohio, 263 F.3d 513, 523-526 (6th Cir. 2001), the Sixth Circuit held that a party need only establish standing at the time a complaint is filed, but the Court also discussed the requirement of injury for purposes of a party establishing standing. The “concrete and actual” injury at issue in the case had nothing to do with the defendant’s reporting requirements under Title VII, or an underlying challenge based on these requirements, but instead, was based on the NAACP’s evidence showing that, at the time the complaint was filed, the complainant had been injured by “employment practices that classified black applicants in a way that deprived them of an opportunity to compete for municipal jobs in Parma.” Id. at 526. Similarly, the injury in the case, Gray v. Greyhound Lines, East, 545 F.2d 169 (D.C. Cir. 1976), brought pursuant to Title VII, was based on alleged discriminatory hiring practices, not statutory reporting requirements. The case, Equal Employment Opportunity Commission v. Rogers Bros., Inc., 470 F.2d 965 (5th Cir. 1972), addresses the EEOC’s standing to seek judicial relief against an employer’s “willful noncompliance” with the reporting requirements of Title VII. Id. at 966, n.3, citing to 42 U.S.C. § 2000e-9(b). Such standing, however, is expressly conferred by statute on the EEOC. Id. Private individuals, like Plaintiffs, do not have such standing.
4

Case 1:04-cv-02205-HHK -AK Document 155 Filed 01/14/10 Page 5 of 7
In this instance, Plaintiffs fail to show standing for purposes of obtaining the injunctive relief they seek. Therefore, their request for such relief should be denied. Also, as explained below, it is doubtful that Plaintiffs can bring an independent cause of action under Title VII to compel Defendant to produce the reports. II. Plaintiffs have no private right of action to bring a claim for production of the
reports. It is a well-settled principle of constitutional law that federal courts are courts of limited jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). They may exercise only as much jurisdiction as is granted to them under the Constitution and by Congress. See id. Plaintiffs bear the burden of establishing the federal jurisdiction upon which their suit relies. See id. When a plaintiff sues the federal government, jurisdiction additionally depends upon a waiver of sovereign immunity. See FDIC v. Meyer, 510 U.S. 471, 475 (1994) (holding that scope of sovereign immunity limits court's jurisdiction); United States v. Mitchell, 463 U.S. 206, 212 (1983) (the United States' consent to be sued is a prerequisite for jurisdiction); First Va. Bank v. Randolph, 110 F.3d 75, 77 (D.C. Cir. 1997). That is, the United States, as a sovereign, is “immune from suit save as it consents to be sued. . . and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit. . .” U.S. v. Sherwood, 312 U.S. 584, 769 (1941). The “grant of a right of action [against the United States] must be made with specificity.” U.S. v. Testan, 424 U.S. 392, 400 (1976)(emphasis added). Stated another way, a waiver of sovereign immunity “cannot be implied but must be unequivocally expressed.” United States v. King, 395 U.S. 1, 4 (1969)). Case law demonstrates that the Courts have consistently refused to imply private rights of action against the United States or to ignore a condition on a sovereign immunity waiver when the statute and legislative history either were silent or indicated congressional intent not to grant
5

Case 1:04-cv-02205-HHK -AK Document 155 Filed 01/14/10 Page 6 of 7
the right requested. See, e.g. United States v. Mottaz, 476 U.S. 834, 844-48 (1986)(government waived its sovereign immunity in Quiet Title Act only with respect to one class of cases because United States not mentioned as a potential party with regard to other class); Lehman v. Nakshian, 453 U.S. 156, 160-70 (1981)(Age Discrimination in Employment Act’s language, structure and legislative history indicated Congress’s intent that waiver of United States’ sovereign immunity from suits under the Act was conditioned on alleged discrimination victim having no right to jury trial); Patentas v. United States, 687 F.2d 707, 710-713 (3d Cir. 1982)(no explicit congressional intent in language or legislative history of Ports and Waterways Safety Act of 1972 to waive immunity from private lawsuits against Coast Guard to require it to fulfill statutory responsibilities).
Title VII creates a private right of action for federal employees to challenge discriminatory practices in federal employment, upon exhaustion of administrative remedies. 42 U.S.C. § 2000e-16(c). Plaintiffs point to no express waiver of the United States’ sovereign immunity under the statute creating a private right of action to compel the Library to produce the requested reports. Given that a silent statute cannot justify a private right of action against the United States, Plaintiffs have not established jurisdiction to proceed with any independent claim for relief in this regard, to the extent they are alleging one. For this reason as well, Plaintiffs’ claim for injunctive relief should be denied.
CONCLUSION As noted in Defendant’s opposition memorandum, Plaintiffs have failed to provide this Court with any reason why an injunction is warranted. Their lack of standing underscores this point. Accordingly, this Court should deny Plaintiffs’ Motion.
6

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Respectfully Submitted,
/s/ Channing D. Phillips /kvm CHANNING D. PHILLIPS, D.C. BAR #415793 Acting United States Attorney
/s/ Rudolph Contreras RUDOLPH CONTRERAS, D.C. BAR #434122 Assistant United States Attorney
/s/ Julia K. Douds /bmr JULIA K. DOUDS Special Assistant United States Attorney U.S. Attorney’s Office for the District of Columbia, Civil Division 555 4th Street, N.W. Washington, D.C. 20530 Ph: (202) 707-7198 Fax: (202) 514-8780 E-mail: jdou@loc.gov
/s/ Beverly M. Russell BEVERLY M. RUSSELL, D.C. Bar #454257 Assistant United States Attorney U.S. Attorney’s Office for the District of Columbia, Civil Division 555 4th Street, N.W., Rm. E-4915 Washington, D.C. 20530 Ph: (202) 307-0492 Fax: (202) 514-8780 E-Mail: beverly.russell@usdoj.gov
7

 
 Case 1:04-cv-02205-HHK -AK Document 156 Filed 01/19/10 Page 1 of 13

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Christine Mills et al.,

)

)

Plaintiffs, )

)

v.

)

)

James Billington,

)

Librarian of Congress

)

)

Defendant. )

_________________________________ )

04 CV 2205 (HHK/AK)

Plaintiffs’ Supplemental Brief on Standing

Defendant takes the position that plaintiffs have not suffered an injury-in-

fact sufficient to confer Article III standing by reason of defendant’s failure to

carry out its duties under §717(b) of Title VII as amended, 42 U.S.C. §2000e-

16(b). Yet it offers no coherent interpretation of the statute that would put

plaintiffs outside the zone of interest protected by the statute and injured by denial

of the right to information, participation in the process and freedom from

discriminatory practices that might be curtailed by compliance with the statutory

mandate. Plaintiffs include African Americans who are present employees of the

Library of Congress. They have a specific interest in ensuring that the Librarian

of Congress carries out his duties to: a) review and maintain an affirmative action

plan for the benefit of employees like plaintiffs; b) publish, on at least a semi-

1

Case 1:04-cv-02205-HHK -AK Document 156 Filed 01/19/10 Page 2 of 13
annual basis, progress reports to provide information to interested parties like plaintiffs; and c) consult with and solicit the recommendations of interested parties - like plaintiffs. Plaintiffs have suffered a cognizable injury by denial of their statutory right to information and participation in the affirmative action plan process.
Defendant does not challenge plaintiffs’ assertion that compliance with the EEO requirements of §717(b) was adequately raised at the administrative level and that raising it pre-suit was not possible as defendant only stopped publishing the reports when this suit was filed. Yet, defendant suggests that the remedy provided by §717(c) somehow excludes enforcement of the requirements of §717(b). The specific question does not appear to have been addressed in a reported opinion. The few opinions addressing employee remedies for violation of anti-discrimination statutes by federal agencies are universal in finding a remedy.
Argument This Court has recently ennumerated the basic requirements for individual standing to bring suit under §717(c) of Title VII of the Civil Rights Act of 1964: For the individual employees to have standing, they must establish: (1) that they have suffered an “injury in fact”; (2) that the injury is “fairly ... trace[able] to the challenged action of the defendant”; and (3) that the injury will “likely” be “redressed by a favorable decision.” Lujan, 504 U.S. at 561, 112 S.Ct. 2130; see also Animal Legal Defense Fund, Inc. v. Glickman, 154
2

Case 1:04-cv-02205-HHK -AK Document 156 Filed 01/19/10 Page 3 of 13
F.3d 426, 431 (D.C.Cir.1998). Cook v. Billington, 541 F.Supp.2d 358, 362 (D.D.C. 2008).
The question of standing involves both the “irreducible minimum” under Article III of the Constitution that the plaintiff have suffered an “injury-in-fact” caused by the challenged conduct that can be redressed by the Court and additional prudential limits. Among the prudential limits to a claim of injury by failure to comply with a statutory mandate is the requirement that the plaintiff’s grievance be within the “zone of interest” that the statute was meant to protect. Bennett v. Spear 520 U.S. 154, 162, 117 S.Ct. 1154, 1161 (1997). While Title VII extends standing to its Article III limits, both requirements are easily met in this case.
Injury In Fact Injury-in-fact does not have to be measured in dollars. Violation of a statutory right or failure to provide an informational benefit created by a statute clearly gives rise to a cognizable injury that can be asserted by the intended beneficiaries of the statute. Havens Realty Corp. v. Coleman, 455 U.S. 363, 373, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) (sustaining the right of Fair Housing Act market testers to receive “truthful information concerning the availability of housing” from sellers, even in the absence of any further harm); Shays v. Federal
3

Case 1:04-cv-02205-HHK -AK Document 156 Filed 01/19/10 Page 4 of 13
Election Com'n, 528 F.3d 914, 923, 381 U.S.App.D.C. 296, 305 (D.C. Cir. 2008)(voter has standing to assert claim of statutory right to information about political candidates); Cook v. Billington, 541 F.Supp.2d 358, 362 (D.D.C.2008)(employees have standing under §717 of Title VII to challenge Librarian’s refusal to recognize employee group where recognition allows for paid meeting time).
A claim for information may become moot - and therefore not capable of redress - when the defendant provides the requested information before suit is filed and there is no claim of a risk of future denial of information. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 105, 118 S.Ct. 1003, 1018 (1998). That situation is not presented on the present record. Since 2004 (shortly after plaintiffs filed the present action) Defendant has ceased: to collect the information; to draft affirmative action plans; to include comments from parties interested in the plans; and to publish the mandatory progress reports. Defendant has also failed to carry out his duty to monitor his own performance of those duties. Defendant admits that it has shirked its statutory duties for the past six years and that it has no plan to come into compliance. The controversey is very much alive as the injury continues. Plaintiffs seek injunctive relief as well as loss of income.
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The zone of interest analysis requires only a showing that the plaintiff’s particularized complaint “arguably” falls within the class of interests the statute was written to protect:
a plaintiff's grievance must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit. See Allen, supra, at 751, 104 S.Ct., at 3324; Valley Forge, supra, at 474-475, 102 S.Ct., at 759-760. Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 1161 (1997); Cohen v. U.S., 578 F.3d 1, 11 -12 (D.C. Cir. 2009). It is at least arguable that black employees of the Library of Congress are among the class of people for whose benefit Congress mandated the periodic review, solicitation of comments and publication of reports about EEO progress as required by §717(b). Section 717 of Title VII of the Civil Rights Act of 1964 was added to the statute in 1972. Its purpose is stated in the text of the statute itself: All personnel actions affecting employees [of] . . . the Library of Congress shall be made free from any discrimination based on race, color, religion, sex, or national origin. 42 U.S.C. §2000e-16(a). Employees of the Library of Congress are clearly within the class of people who might be affected by the failure of the Librarian of Congress to carry out mandatory duties Congress determined to be necessary to effectuate the goal of
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§717. Among those duties are the requirements of §717(b). Defendant appears to concede that the relief plaintiffs seek is within the
scope of the administrative process that gave rise to this action. Defendant suggests that plaintiffs would not have standing to enforce a private employer’s duty to submit reports to the EEOC, Def. Supp. p. 4. The suggestion is not relevant as defendant is not a private employer and the reporting requirement as well as the civil suit provision involved in this action comes from a part of Title VII that applies only to federal employers. Defendant does not even argue that employees of the Library of Congress are outside of the class of “employees” of, inter alia, the “Library of Congress” who can bring suit if they are “aggrieved” by the failure of the Librarian of Congress to take “final action” on a complaint of discrimination. 42 U.S.C. 2000e-16(c).
The only specific argument defendant makes against plaintiffs standing is easily refuted. At page 14 of plaintiffs’ moving brief, undersigned counsel made the statement that
Plaintiffs may not suffer a direct injury from the Defendant’s repeated failures to comply with his statutory duties to file such plans and progress reports but they have standing in Court to enforce the broad remedial mandate of Title VII. Plaintiffs did not and do not concede that there is no “injury-in-fact”
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Case 1:04-cv-02205-HHK -AK Document 156 Filed 01/19/10 Page 7 of 13
sufficient to confer standing. To the contrary, both the moving brief and the reply describe specific “injury-in-fact” from defendant’s denial of plaintiffs’ statutory right to information, involvement in the process of drafting the affirmative action plans, and benefits of any amelioration of discriminatory pay and promotion practices. As noted above, plaintiffs need not suffer an economic injury to suffer an injury-in-fact. The quoted language from the moving brief was simply a recognition that defendant’s compliance with the requirements of 42 U.S.C. 2000e-16(b) will not provide the kinds of relief that plaintiffs seek in the underlying pay and promotion litigation. Plaintiffs do not seek specific promotions, changes to hiring practices, back pay or other relief on this motion. Plaintiffs do have standing to require defendant to meet the minimum requirements of the statute even while the claims for other relief are pending.
Injury Attributable to Defendant and Redressible by the Court None of the opinions cited by defendant addresses the scope of standing under §717 of Title VII. Each turns on questions of causation and redressibility not raised in this case. All are easily distinguished. In Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003 (1998), the Court expressly declined to rule on the question whether denial of the plaintiffs’ statutory right to an inventory of defendant’s toxic chemical use
7

Case 1:04-cv-02205-HHK -AK Document 156 Filed 01/19/10 Page 8 of 13
would give rise to injury-in-fact. 523 U.S. at 105. In that case, the defendant had filed the report required under the toxic inventory statute during the pendency of the 60 day notice period mandated by the citizens’ suit provision that created the cause of action. Because there was no allegation of an ongoing failure to file reports or a reasonable probability of future violations, the Court held that the plaintiffs failed to allege an injury that could be redressed in an action filed after the defendant had complied with the law. The present action presents the flip side of Steel Co. because the Defendant Librarian started violating the law shortly after plaintiffs filed this action. The injury from denial of statutory rights is clearly redressable.
Defendant also mis-cites Freedom Republicans, Inc. v. Federal Election Com'n, 13 F.3d 412, 416 (D.C. Cir.1994) (“Because we hold that Freedom Republicans is unable to satisfy the redressability and causation requirements of standing, we need not decide whether it makes out a judicially cognizable injury.”). Like Steel Co., the Freedom Republicans opinion expressly declines to examine the question of injury-in-fact. There, the plaintiffs sued the FEC to stop funding of the Republican convention due to allegedly discriminatory party rules on delegate selection. The Court held that the causal nexus between FEC funding and the challenged rule was too tenuous to establish the possibility that a
8

Case 1:04-cv-02205-HHK -AK Document 156 Filed 01/19/10 Page 9 of 13
successful challenge would address the underlying discrimination. There was no evidence that changing the FEC funding procedures would have any impact on the delegate selection rules of the Republican Party.
Here, there is a direct causal nexus between the Librarian’s failure to ensure that he complies with the EEO requirements of Title VII and plaintiffs’ request for relief - an order compelling the Librarian to come into compliance with those requirements. The violation of the statute can easily be cured by court order. It is redressable.
Sovereign Immunity Is Waived for the Requested Relief Defendant concedes, as it must, that Congress waived sovereign immunity when it created a civil action for the express purpose of allowing suit against Defendant by any employee who may be ‘aggreived’ “by the failure to take final action on his complaint.” 42 U.S.C. 2000e-16(c). The language of the waiver is clear and unequivocal. Gomez-Perez v. Potter, 128 S.Ct. 1931, 1940-1941 (2008). An employee may sue the head of his agency:
. . . an employee or applicant for employment, if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action as provided in section 2000e-5 of this title, in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant.
42 U.S.C. 2000e-16(c). Gomez-Perez v. Potter, supra, at 1940-1941. Defendant further concedes that plaintiffs’ requests for affirmative action
information and participation in the process during the administrative stage of this
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Case 1:04-cv-02205-HHK -AK Document 156 Filed 01/19/10 Page 10 of 13
action - including the January 2005 letter cited in the moving brief - were sufficient to constitute an administrative “complaint” for defendant’s failure to carry out its affirmative action data collection, reporting and consultation duties from January 2005 to the present duty. Yet defendant argues that the relief plaintiffs request here is, somehow, outside the scope of the civil action created by 42 U.S.C. 2000e-16(c).
While Defendant makes a generalized argument against implied waivers of sovereign immunity by the federal government, it ignores the clear evidence of Congressional intent to create the broadest possible remedy for federal employees challenging discrimination in the federal workplace. Specifically, Congress mandated affirmative action plans, reporting and participation of interested parties for federal agencies. 42 U.S.C. 2000e-16(b). There is no such mandate in Title VII for private employers. Thus, while such requirements can be ordered only as a means to redress underlying discrimination in private employment, the EEO analysis and reports are mandatory for the Librarian of Congress independent of any other statutory violation. Defendant’s efforts to distinguish cases finding reporting to be a valid remedy for private employers who have violated Title VII are without merit. Federal employers have an express statutory duty to engage in the EEO activities listed in 42 U.S.C. 2000e-16(b), independent of any finding of
10

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underlying discrimination. Defendant offers no authority to suggest that the scope of relief under
§717(c) is somehow narrower than it is for private employers under §702. Nor could it as Congress expressly defined the scope of relief available against federal employers by reference to the provisions that apply to private employers. 42 U.S.C. 2000e-16(d) thus incorporates the provisions of 42 U.S.C. 2000e-5(f) through (k) relating to remedies.
Finally, it is well established that the mandate to root out discrimination from federal personnel practices is broader than for private employers both in requiring EEO activities under subsection (b) and in the scope of activity prohibited in subsection (a). §717(a), unlike §702 of Title VII, mandates that “all personnel actions” be free from discrimination, not just the specific practices ennumerated in section 702. Compare, 42 U.S.C. 2000e-16(a) with 42 U.S.C. 2000e-2(a). Palmer v. Schultz, supra, 815 F.2d 84, 97 (D.C. Cir. 1987)(Title VII); Cf., Forman v. Small, 271 F.3d 285, 298 (D.C. Cir. 2001)(ADEA); see also Gomez-Perez v. Potter, 128 S.Ct. 1931, 1940-41 (2008).
Even before Congress created a specific cause of action for enforcement of federal employees’ right to be free from handicap discrimination, this court found that a handicapped employee could bring suit to compel a federal agency to carry
11

Case 1:04-cv-02205-HHK -AK Document 156 Filed 01/19/10 Page 12 of 13
out its mandatory duty to create and execute an affirmative action plan. McNutt v. Hills, 426 F.Supp. 990, 997 (D.D.C. 1977); Womack v. Lynn, 504 F.2d 267, 269, 164 U.S.App.D.C. 198, 200 (D.C. Cir. 1974). In the present case, jurisdiction is already established over the underlying discrimination action filed pursuant to §717(c). There is no need to examine the Administrative Procedures Act, the mandamus statute, or Executive Orders to find a basis for the kind of jurisdiction found in McNutt. Those bases for jurisdiction are, in any event, saved by §717(e) which provides that the addition to Title VII is not intended to pre-empt or override any pre-existing right of federal employees to assert anti-discrimination rights established before 1972.
Title VII is not a statute of general application that plaintiffs are trying to extend to cover the federal government. Rather, §717 represented a deliberate decision by Congress in 1972 to waive sovereign immunity by federal employers to the extent that it had not be waived before. The D.C. Circuit has interpreted the statute as creating a broad action to vindicate rights guaranteed by the statute even where there is no tangible economic harm. Palmer, 815 F.2d at 97-98.
The only opinion cited by defendant that even involves the scope of a discrimination statute is Lehman v Nakshian, 453 U.S. 156, 160-70 (1981). There, the Supreme Court recognized that there is no doubt that Congress waived
12

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sovereign immunity for the full scope of relief available under the ADEA when it enacted 29 U.S.C. 633a in 1978. The only issue raised in that case was the right to jury trial. The Court has noted that Congress expanded the scope of the waiver of sovereign immunity in 1991 when it made a right to jury trial for compensatory damages available to federal employees. West v. Gibson, 527 U.S. 212, 222, 119 S.Ct. 1906, 1912 (U.S.,1999). Nothing in the Act or the caselaw suggests that the waiver of sovereign immunity under section 717 somehow excludes the right to enforce 717(b).
Respectfully submitted, /s/ David L. Rose David L. Rose daver@roselawyers.com Joshua N. Rose josh@roselawyers.com Earlene W. Rosenberg erosenberg@roselawyers.com Rose & Rose, P. C, 1320 19th St., N. W., Suite 601 Washington, D. C. 20036 Attorneys for the Plaintiffs Tel. 202 331-8555 Fax 202 331-0996 January 19, 2010
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 Case 1:04-cv-02205-HHK -AK Document 137 Filed 10/30/09 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Christine Mills et al.,

)

)

Plaintiffs, )

)

v.

)

)

James Billington,

)

Librarian of Congress

)

)

Defendant. )

_____________________________________)

04 CV 2205 (HHK/AK)

MOTION BY PLAINTIFFS FOR AN INJUNCTION TO REQUIRE DEFENDANT TO COMPILE AND PUBLISH ANNUAL EQUAL
EMPLOYMENT OPPORTUNITY PLANS AND RELATED REPORTS AND AS REQUIRED BY TITLE VII

Plaintiffs move for entry of an Injunction that requires the Defendant Library to compile

and publish annually Equal Employment Opportunity Plans and related semi-annual progress

reports for fiscal years 2005, 2006, 2007, 2008 and 2009 no later than November 30, 2009, or

such other date as my be ordered by the Court as modified by an agreement of the parties, and to

consult with and solicit recommendations from interested individuals and groups, including

Plaintiffs, and equal employment opportunity organizations, and to compile and publish such a

Plan each year 2010 and each year thereafter, and to make semi-annual and rated reports for

each subsequent fiscal year for 2010 and thereafter.

This motion is based upon Title VII of the Civil rights Act of 1964, as amended, 42

U.S.C. §2000e-16, and upon the record made to date, and upon Exhibits 1 through 9, submitted

herewith. A memorandum in support of this motion is submitted herewith and an Injunction of

the kind Plaintiffs seek is submitted with this motion.

1

Case 1:04-cv-02205-HHK -AK Document 137 Filed 10/30/09 Page 2 of 2
Based upon the language of Title VII and the other reasons and authorities set forth in their memorandum in support, Plaintiffs request the entry of an Injunction of the kind submitted herewith.
/s/ David L. Rose David L. Rose daver@roselawyers.com Joshua N. Rose josh@roselawyers.com Earlene W. Rosenberg erosenberg@roselawyers.com Rose & Rose, P. C, 1320 19th St., N. W., Suite 601 Washington, D. C. 20036 Attorneys for the Plaintiffs Tel. 202 331-8555 Fax 202 331-0996 October 30, 2009
2

 
 Case 1:04-cv-02205-HHK -AK Document 141 Filed 11/17/09 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________

Christine Mills et. al.

)

)

Plaintiffs

)

)

v.

)

)

James Billington, Librarian

)

Library of Congress

)

)

Defendant

)

______________________________)

Civil Action No. 04-2205 (HHK/AK)

DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR AN INJUNCTION

Plaintiffs have filed a motion for an injunction to require Defendant to compile and publish annual Equal Employment Opportunity plans and related reports.1 However, Plaintiffs’

Motion provides no standard for determining how or why this Court should grant their

injunction. In determining whether to grant or deny Plaintiffs’ request for an injunction, this

Court is required to balance four factors: (1) plaintiffs’ likelihood of success on the merits;

(2) irreparable harm to the plaintiffs if the injunction is not granted; (3) substantial harm to the

defendants if the injunction is granted; and (4) the public interest. Chaplaincy of Full Gospel

Churches v. England, 454 F. 3d 290, 297 (D.C. Cir. 2006) (“CFGC”). The Court is to weigh the

foregoing factors on a “sliding scale”, such that if Plaintiffs make an exceptionally strong

showing with respect to one of the above factors, they need not make as strong a showing on the

1Plaintiffs styled their motion as one for injunctive relief to compel Defendant to produce reports. Defendant notes that a motion for injunctive relief is actually intended to preserve the status quo, see, e.g. Consarc Corp. v. United States Treasury Dep’t, Office of Foreign Assets Control, 71 F.3d 909, 913 (D.C. Cir. 1995), which is not in danger of being compromised here. On this basis, Plaintiffs’ motion should be denied. Nevertheless, Defendant addresses the motion as styled.

Case 1:04-cv-02205-HHK -AK Document 141 Filed 11/17/09 Page 2 of 4
remaining factors. Fraternal Order of Police v. Library of Congress, XX F. 3d XX (D.D.C. 2009), citing to Davenport v. Int’l Bhd. of Teamsters, 166 F. 3d 356, 361 (D.C. Cir. 1999). In the alternative, if the harm to the defendants would be substantial if the injunction is granted and the irreparable harm to the plaintiffs is low if the injunction is denied, then the Plaintiffs must show a much greater likelihood of success on the merits. Ibid at XX. Thus, the Court is to balance all four factors against each other in determining whether to grant or deny the injunction. Ibid. Most importantly, Plaintiffs bear the burden of establishing that all four factors, when considered together, weigh in favor of granting their request for an injunction. CFGC, 454 F. 3d at 297.
Plaintiffs’ Motion fails to explain or show how any of the foregoing factors for granting an injunction are present in the instant case. Instead, Plaintiffs merely state that they have “standing to seek information that should be filed and published annually...” and that this somehow entitles them at this juncture in the proceedings (i.e., pre-class certification) to prevail on their request for an injunction requiring the Defendant to produce EEO reports for the years from 2005-2009. Plaintiffs’ Motion at 12. For purposes of their requested relief, however, Plaintiffs have not provided a scintilla of explanation as to the likelihood of succeeding on the merits or what (if any) irreparable harm they will suffer as a result of their motion not being granted. Indeed, Defendant would posit that Plaintiffs cannot establish any irreparable harm and that this factor, in addition to that stated above, merits denial of Plaintiffs’ motion. See Sampson v. Murray, 415 U.S. 61, 88 (1974)(“the basis of injunctive relief in the federal courts has always been irreparable harm,”); CityFed Fin. Corp v. Office of Thrift Supervision, 58 F. 3d 738, 747 (D.C. Cir. 1995)(a court may deny a motion for preliminary injunction and not address the
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Case 1:04-cv-02205-HHK -AK Document 141 Filed 11/17/09 Page 3 of 4
remaining three factors where a plaintiff fails to establish irreparable harm). Plaintiffs
themselves admit that, “[T]hey may not suffer a direct injury from the Defendant’s repeated
failures to comply with his statistical duties to file such plans and progress reports...”. Plaintiffs’
Motion at 14. Considering Plaintiffs’ failure to establish that any supposed present or perceived
injury to them cannot be remedied by corrective relief at a later date (assuming they meet the
requirements for class certification and a trial on the merits finds in their favor) “weighs heavily
against [their] claim of irreparable harm,” and therefore, warrants denial of their motion. CFCG, 454 F. 3d at 297-98.2
CONCLUSION
Plaintiffs have failed to provide this Court with any reason why an injunction is
warranted. Moreover, Plaintiffs cannot show any irreparable injury that would result should their
Motion be denied (and that cannot be remedied should they prevail on the merits of their case).
Wherefore, this Court should deny Plaintiffs’ Motion.
2 Defendant denies several factual assertions and conclusions made by the Plaintiffs in their Motion. Plaintiffs assertion that, “in 2007, the Inspector General [of the Library] concluded that Defendant was not conducting necessary affirmative action analyses,” is incorrect. See, Plaintiffs’ Motion at 7 & 11. The Inspector General’s report’s reference to “making statistical data available to all staff,” was a recommendation for the Library to follow the reporting requirements under the “No Fear Act,” P.L. 107-174, a law that is not applicable to the Library. Therefore, the assertion that somehow the Library’s Inspector General’s report was opining or making a conclusion regarding the reporting requirements under Title VII is misplaced. Second, Plaintiffs’ assertion that, “Plaintiffs have been advised by defense counsel that the Library has no plans to compile data or to publish reports pursuant to the statutory monitoring and publication requirements,” is incorrect. Plaintiffs’ Motion at 4 & 11. At the hearing before Judge Kay on October 20, 2009, defense counsel was merely responding to a question regarding whether the Library had any “applicant flow data” regarding its selection process and not as to the Library’s intentions with respect to the reporting requirements under Title VII, or whether the Library would or had adhered to such requirements.
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Case 1:04-cv-02205-HHK -AK Document 141 Filed 11/17/09 Page 4 of 4
Respectfully Submitted,
/s/ Channing D. Phillips /dch CHANNING D. PHILLIPS, D.C. BAR #415793 Acting United States Attorney
/s/ Rudolph Contreras RUDOLPH CONTRERAS, D.C. BAR #434122 Assistant United States Attorney
/s/ Julia K. Douds /bmr JULIA K. DOUDS Special Assistant United States Attorney U.S. Attorney’s Office for the District of Columbia, Civil Division 555 4th Street, N.W. Washington, D.C. 20530 Ph: (202) 707-7198 Fax: (202) 514-8780 E-mail: jdou@loc.gov
/s/ Beverly M. Russell BEVERLY M. RUSSELL, D.C. Bar #454257 Assistant United States Attorney U.S. Attorney’s Office for the District of Columbia, Civil Division 555 4th Street, N.W., Rm. E-4915 Washington, D.C. 20530 Ph: (202) 307-0492 Fax: (202) 514-8780 E-Mail: beverly.russell@usdoj.gov
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 Case 1:04-cv-02205-HHK -AK Document 128 Filed 08/28/09 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CHRISTINE MILLS, et al., Plaintiff, v.
JAMES H. BILLINGTON, Defendant.

Civil Action 04-02205 (HHK) (AK)

ORDER It is this 28th day of August 2009, hereby ORDERED that Plaintiffs’ Second Motion to Extend Time for Discovery and to File for Class Certification [#124] is referred to United States Magistrate Judge Alan Kay for his determination pursuant to this Court’s previous order referring all motions relating to discovery or discovery-related disputes to Magistrate Judge Kay for his determination [#39].
Henry H. Kennedy, Jr. United States District Judge

 
 Case 1:04-cv-02205-FJS Document 213 Filed 02/28/11 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CHRISTINE MILLS, et al., Plaintiffs, v.
JAMES H. BILLINGTON, Defendant.

Civil Action 04-02205 (HHK)

ORDER Before the Court is plaintiffs’ motion for an injunction requiring defendant Library of Congress to compile and publish equal employment opportunity plans and related documents as required by 42 U.S.C. § 2000e-16(b) [#137]. Pursuant to Local Rule 72.3(a), the Court referred this motion to United States Magistrate Judge Alan Kay for a report and recommendation, which he issued on February 17, 2010. Judge Kay recommended that the motion be denied on two grounds. First, he concluded that the Court lacked jurisdiction to grant the relief sought by plaintiffs because plaintiffs’ claim did not fit within any waiver of sovereign immunity and because plaintiffs lacked standing to enforce section 2000e-16(b). Report & Recommendation of U.S. Magistrate Judge Kay, Feb. 17, 2010 (“Report & Recommendation”) [#162] at 4–12. Second, he concluded that, notwithstanding any jurisdictional defects, plaintiffs’ motion must be denied because plaintiffs had raised their section 2000e-16(b) for the first time in the motion, and had not amended their complaint to include it. Id. at 12–14. For the latter reason, the Court agrees that the motion must be denied.

Case 1:04-cv-02205-FJS Document 213 Filed 02/28/11 Page 2 of 2
As Judge Kay noted, “[t]he traditional practice of this Court has been to disregard ‘claim[s] asserted for the first time in a memorandum of law’ because those claims ‘[were] not made in the [plaintiff’s] original complaint or advanced in a motion to amend.’” Tunica-Biloxi Tribe of La. v. United States, 577 F. Supp. 2d 382, 411 (D.D.C. 2008) (quoting Hamilton v. Paulson, 542 F. Supp. 2d 37, 61 (D.D.C. 2008)) (alterations in original); see also Kilpatrick v. Paige, 193 F. Supp. 2d 145, 158 (D.D.C. 2002) (holding a claim to be “invalid because it was not made in the original complaint or advanced in a motion to amend.”). Dismissal of such claims is, so long as the plaintiff is subsequently accorded the opportunity to seek leave to amend the complaint to add them, proper. Tunica-Biloxi Tribe, 577 F. Supp. 2d at 411–12.
In fact, plaintiffs do not contest Judge Kay’s conclusion that their claim cannot be resolved before it is added to their complaint, arguing only that, if the Court decides not to grant their motion, it “should simply reject the unnecessary Recommendations with regard to standing and soveriegn [sic] immunity and should deny the motion without prejudice to seek an amendment to the complaint or to file a new action.” Pls.’ Objections to the Report & Recommendation of Feb. 17, 2010 at 17. Because it would be premature to address the Court’s jurisdiction over a claim that plaintiffs have not yet properly presented, the Court will do precisely that.
Accordingly, it is this 28th day of February 2011 hereby ORDERED that plaintiffs’ motion for an injunction [#137] is DENIED without prejudice.
Henry H. Kennedy, Jr. United States District Judge
2

 
 UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA _________________________________________________

CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN, PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, and CHARLES MWALIMU,

Plaintiffs,

v.
JAMES HADLEY BILLINGTON, Librarian, Library of Congress,

1:04-CV-2205 (FJS/AK)

Defendants. _________________________________________________

APPEARANCES

OF COUNSEL

ROSE LEGAL ADVOCATES 1726 M Street, NW Suite 203 Washington, D.C. 20036 Attorneys for Plaintiffs

DAVID L. ROSE, ESQ. JOSHUA N. ROSE, ESQ. EARLENE W. ROSENBERG, ESQ.

OFFICE OF THE UNITED STATES ATTORNEY 555 4th Street, NW Washington, D.C. 20530 Attorneys for Defendant

BEVERLY M. RUSSELL, AUSA JULIA DOUDS, AUSA

SCULLIN, Senior Judge

ORDER

Currently before the Court are Defendant's motion to dismiss or, in the alternative, for

summary judgment, see Dkt. No. 172, and Defendant's motion to strike the declarations that

Plaintiffs filed in support of their opposition to Defendant's motion to dismiss, see Dkt. No. 192.

The Court heard oral argument in support of, and in opposition to, these motions on

March 5, 2013. Consistent with the Court's discussion with counsel at the conclusion of oral argument, the following constitutes the Court's written resolution of these motions. Accordingly, the Court hereby
ORDERS that Defendant's motion to dismiss or, in the alternative, for summary judgment is DENIED insofar as that motion is based on failure to exhaust administrative remedies; and the Court further
ORDERS that Defendant's motion to dismiss or, in the alternative, for summary judgment is DENIED insofar as that motion is based on the doctrine of res judicata; and the Court further
ORDERS that Defendant's motion to dismiss or, in the alternative, for summary judgment is DENIED without prejudice and with leave to renew insofar as that motion is based on the doctrine of collateral estoppel. Defendant may renew its motion to dismiss and/or for summary judgment on this ground, if appropriate, in opposition to Plaintiff's motion for class certification; and the Court further
ORDERS that Defendant's motion to dismiss or, in the alternative, for summary judgment is DENIED without prejudice and with leave to renew insofar as that motion is based on failure to state a claim. Defendant may renew its motion to dismiss and/or for summary judgment on this ground, if appropriate, in opposition to Plaintiffs' motion for class certification; and the Court further
ORDERS that Defendant's motion for sanctions, which seeks relief in the form of the dismissal of Plaintiffs' class claims, see Dkt. No. 120, and Defendant's motion for leave to file a supplemental memorandum in support of that motion, see Dkt. No. 191, are DENIED; and the
-2-

Court further ORDERS that the pending discovery disputes regarding class discovery, including but
not limited to Defendant's motion for a protective order, see Dkt. No. 207, Plaintiffs' motion for clarification of Magistrate Judge Kay's May 28, 2010 Order, see Dkt. No. 211, and Defendant's motion to strike the declarations that Plaintiffs filed in support of their opposition to Defendant's motion to dismiss or, in the alternative, for summary judgment, see Dkt. No. 192, are referred to Magistrate Judge Kay for resolution; and the Court further
ORDERS that, within ten days of the date on which Magistrate Judge Kay resolves the outstanding class discovery issues, the parties shall complete said discovery; and the Court further
ORDERS that, within forty days of the date on which Magistrate Judge Kay resolves the outstanding class discovery issues, Plaintiffs shall file their motion for class certification; and the Court further
ORDERS that Defendant shall file its opposition to Plaintiffs' motion for class certification within fourteen days of the date on which Plaintiffs file their motion for class certification; and the Court further
ORDERS that the parties shall not file any further papers either in support of or in opposition to Plaintiffs' motion for class certification. IT IS SO ORDERED. Dated: March 12, 2013
Syracuse, New York
-3-

 
 UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA __________________________________________________

CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN, PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR and CHARLES MWALIMU,

Plaintiffs,

v.
JAMES HADLEY BILLINGTON, Librarian, Library of Congress,

1:04-CV-2205 (FJS)

Defendant. __________________________________________________

APPEARANCES

OF COUNSEL

ROSE ADVOCATE FOR CIVIL RIGHTS 4611 Norwood Drive Chevy Chase, Maryland 20815 Attorneys for Plaintiffs

DAVID LOUIS ROSE, ESQ.

ROSE & ROSE, PC 1320 19th Street, NW Suite 601 Washington, D.C. 20036 Attorneys for Plaintiffs

EARLENE WHITE ROSENBERG, ESQ.

TULLY RINCKEY PLLC 815 Connecticut Avenue, NW Suite 720 Washington, D.C. 20006 Attorneys for Plaintiffs

JOSHUA N. ROSE, ESQ.

OFFICE OF THE UNITED STATES ATTORNEY 555 Fourth Street, NW Washington, D.C. 20530 Attorneys for Defendant

BEVERLY MARIA RUSSELL, AUSA JULIA DOUDS, AUSA

SCULLIN, Senior Judge
ORDER Pending before the Court are Plaintiffs' motion to bifurcate issues of liability and issues of individual relief, see Dkt. No. 261; Plaintiffs' motion to certify a class, see Dkt. No. 263; and Defendant's motion to dismiss or, in the alternative, for summary judgment, see Dkt. No. 269. After reviewing the entire record in this matter, the parties' submissions and oral arguments, and the applicable law, and for the reasons stated on the record at oral argument, the Court hereby ORDERS that Plaintiffs' motion to certify a class, see Dkt. No. 263, is DENIED; and the Court further ORDERS that Plaintiffs' motion to bifurcate issues of liability and issues of individual relief, see Dkt. No. 261, is DENIED as moot; and the Court further ORDERS that Defendant's motion to dismiss or, in the alternative, for summary judgment, see Dkt. No. 269, is GRANTED pursuant to Local Civil Rule 7(b) because Plaintiffs did not file a memorandum of law in opposition to this motion within the prescribed time frame; and, therefore, the Court deems Defendant's motion conceded;1 and the Court further
1 The Court notes that it contacted Plaintiffs' counsel twice after the filing deadline to inquire as to the reason he had not filed any response to Defendant's motion. Eventually, Plaintiffs' counsel filed a memorandum purporting to respond to Defendant's motion. Not only was this memorandum untimely but it cited no law, nor provided any record-supported facts, to support Plaintiffs' position that the Court should not grant Defendant's motion. In addition, at oral argument, Plaintiffs' counsel provided no valid excuse for his failure to respond to Defendant's motion within the required time frame.
-2-

ORDERS that the Clerk of the Court shall enter judgment in favor of Defendant and close this case. IT IS SO ORDERED. Dated: March 30, 2016
Syracuse, New York
-3-

 
 Case: 1:04-cv-2205 As of: 03/12/2017 09:23 PM EDT 1 of 47
CLOSED,JURY,TYPE−H
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:04−cv−02205−FJS

MILLS et al v. BILLINGTON et al Assigned to: Judge Frederick J. Scullin, Jr Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 12/20/2004 Date Terminated: 03/31/2016 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Defendant

CHRISTINE MILLS

represented by David Louis Rose ROSE ADVOCATE FOR CIVIL RIGHTS 4611 Norwood Drive Chevy Chase, MD 20815 (202) 769−5860 Fax: (202) 331−0996 Email: annkerose@verizon.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Denise Marie Clark CLARK LAW GROUP, PLLC 1250 Connecticut Avenue, NW Suite 200 Washington, DC 20036 (202) 293−0015 Fax: (202) 293−0115 Email: dmclark@benefitcounsel.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Earlene White Rosenberg ROSE & ROSE, PC 1320 19th Street, NW Suite 601 Washington, DC 20036 (202) 331−8555 Email: erosenberg@roselawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua N. Rose TULLY RINCKEY PLLC 815 Connecticut Avenue, NW Suite 720 Washington, DC 20006 (202) 375−2224 Fax: (518) 218−0496 Email: jrose@fedattorney.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ari Taragin 6603 Chelwood Road Baltimore, MD 21209 (410) 262−2629 Email: taragin6603@yahoo.com TERMINATED: 02/12/2008

Jeffery Charles Taylor Jeffery C Taylor Esq

Case: 1:04-cv-2205 As of: 03/12/2017 09:23 PM EDT 2 of 47

1498 Reisterstown Road Suite 356 Baltimore, MD 21208 443−660−8516 Fax: 410−486−7998 Email: mrtayloresquire@comcast.net TERMINATED: 02/04/2009

Michael J. Snider SNIDER & ASSOCIATES, LLC 104 Church Lane Suite 100 Baltimore, MD 21208 (410) 653−9060 Fax: (410) 653−9061 Email: mike@sniderlaw.com TERMINATED: 02/12/2008

Yuval Rubinstein ROSE & ROSE, PC 1320 19th Street, NW Suite 601 Washington, DC 20036 (703) 635−0819 Email: yrubinstein@roselawyers.com TERMINATED: 08/10/2012

Plaintiff RUNAKO BALONDEMU

represented by David Louis Rose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Denise Marie Clark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Earlene White Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua N. Rose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ari Taragin (See above for address) TERMINATED: 02/12/2008

Jeffery Charles Taylor (See above for address) TERMINATED: 02/04/2009

Michael J. Snider (See above for address) TERMINATED: 02/12/2008

Yuval Rubinstein (See above for address) TERMINATED: 08/10/2012

Case: 1:04-cv-2205 As of: 03/12/2017 09:23 PM EDT 3 of 47

Plaintiff
AMY BARNES TERMINATED: 04/02/2007

represented by Denise Marie Clark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Earlene White Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ari Taragin (See above for address) TERMINATED: 02/12/2008

Jeffery Charles Taylor (See above for address) TERMINATED: 02/04/2009

Michael J. Snider (See above for address) TERMINATED: 02/12/2008

Plaintiff
ARNICE COOKE TERMINATED: 04/02/2007

represented by Denise Marie Clark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Earlene White Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ari Taragin (See above for address) TERMINATED: 02/12/2008

Jeffery Charles Taylor (See above for address) TERMINATED: 02/04/2009

Michael J. Snider (See above for address) TERMINATED: 02/12/2008

Plaintiff
ROBERT COOPER TERMINATED: 04/02/2007

represented by Denise Marie Clark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Earlene White Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ari Taragin (See above for address) TERMINATED: 02/12/2008

Jeffery Charles Taylor (See above for address)

Case: 1:04-cv-2205 As of: 03/12/2017 09:23 PM EDT 4 of 47

TERMINATED: 02/04/2009

Michael J. Snider (See above for address) TERMINATED: 02/12/2008

Plaintiff
MICHAEL DURRAH, II TERMINATED: 04/02/2007

represented by Denise Marie Clark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Earlene White Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ari Taragin (See above for address) TERMINATED: 02/12/2008

Jeffery Charles Taylor (See above for address) TERMINATED: 02/04/2009

Michael J. Snider (See above for address) TERMINATED: 02/12/2008

Plaintiff GERALDINE DUNCAN

represented by David Louis Rose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Denise Marie Clark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Earlene White Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua N. Rose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ari Taragin (See above for address) TERMINATED: 02/12/2008

Jeffery Charles Taylor (See above for address) TERMINATED: 02/04/2009

Michael J. Snider (See above for address) TERMINATED: 02/12/2008

Yuval Rubinstein (See above for address)

Case: 1:04-cv-2205 As of: 03/12/2017 09:23 PM EDT 5 of 47

TERMINATED: 08/10/2012

Plaintiff
SABRAE HILLIARD TERMINATED: 04/02/2007

represented by Denise Marie Clark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Earlene White Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ari Taragin (See above for address) TERMINATED: 02/12/2008

Jeffery Charles Taylor (See above for address) TERMINATED: 02/04/2009

Michael J. Snider (See above for address) TERMINATED: 02/12/2008

Plaintiff PRISCILLA IJEOMAH

represented by David Louis Rose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Denise Marie Clark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Earlene White Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua N. Rose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ari Taragin (See above for address) TERMINATED: 02/12/2008

Jeffery Charles Taylor (See above for address) TERMINATED: 02/04/2009

Michael J. Snider (See above for address) TERMINATED: 02/12/2008

Yuval Rubinstein (See above for address) TERMINATED: 08/10/2012

Plaintiff

Case: 1:04-cv-2205 As of: 03/12/2017 09:23 PM EDT 6 of 47

LAWRENCE PERRY

represented by David Louis Rose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Denise Marie Clark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Earlene White Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua N. Rose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ari Taragin (See above for address) TERMINATED: 02/12/2008

Jeffery Charles Taylor (See above for address) TERMINATED: 02/04/2009

Michael J. Snider (See above for address) TERMINATED: 02/12/2008

Yuval Rubinstein (See above for address) TERMINATED: 08/10/2012

Plaintiff WILLIAM ROWLAND

represented by David Louis Rose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Denise Marie Clark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Earlene White Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua N. Rose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ari Taragin (See above for address) TERMINATED: 02/12/2008

Jeffery Charles Taylor (See above for address) TERMINATED: 02/04/2009

Case: 1:04-cv-2205 As of: 03/12/2017 09:23 PM EDT 7 of 47

Plaintiff MARK A. WILSON Individually and on behalf of all other similarly situated persons TERMINATED: 04/02/2007
Plaintiff DAVID HUBBARD

Michael J. Snider (See above for address) TERMINATED: 02/12/2008
Yuval Rubinstein (See above for address) TERMINATED: 08/10/2012
represented by Denise Marie Clark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Earlene White Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ari Taragin (See above for address) TERMINATED: 02/12/2008
Jeffery Charles Taylor (See above for address) TERMINATED: 02/04/2009
Michael J. Snider (See above for address) TERMINATED: 02/12/2008
represented by David Louis Rose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denise Marie Clark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Earlene White Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua N. Rose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ari Taragin (See above for address) TERMINATED: 02/12/2008
Jeffery Charles Taylor (See above for address) TERMINATED: 02/04/2009
Michael J. Snider (See above for address) TERMINATED: 02/12/2008

Case: 1:04-cv-2205 As of: 03/12/2017 09:23 PM EDT 8 of 47

Plaintiff CLIFTON KNIGHT
Plaintiff SHARON TAYLOR

Yuval Rubinstein (See above for address) TERMINATED: 08/10/2012
represented by David Louis Rose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denise Marie Clark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Earlene White Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua N. Rose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ari Taragin (See above for address) TERMINATED: 02/12/2008
Jeffery Charles Taylor (See above for address) TERMINATED: 02/04/2009
Michael J. Snider (See above for address) TERMINATED: 02/12/2008
Yuval Rubinstein (See above for address) TERMINATED: 08/10/2012
represented by David Louis Rose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denise Marie Clark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Earlene White Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua N. Rose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ari Taragin

Case: 1:04-cv-2205 As of: 03/12/2017 09:23 PM EDT 9 of 47

(See above for address) TERMINATED: 02/12/2008

Jeffery Charles Taylor (See above for address) TERMINATED: 02/04/2009

Michael J. Snider (See above for address) TERMINATED: 02/12/2008

Yuval Rubinstein (See above for address) TERMINATED: 08/10/2012

Plaintiff CHARLES MWALIMU

represented by David Louis Rose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Denise Marie Clark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Earlene White Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua N. Rose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ari Taragin (See above for address) TERMINATED: 02/12/2008

Jeffery Charles Taylor (See above for address) TERMINATED: 02/04/2009

Yuval Rubinstein (See above for address) TERMINATED: 08/10/2012

V.
Defendant
JAMES HADLEY BILLINGTON Librarian, Library of Congress

represented by Jason Todd Cohen U.S. ATTORNEY'S OFFICE Civil Division 555 Fourth Street, NW Washington, DC 20530 (202) 252−2523 Fax: (202) 252−2599 Email: jason.cohen@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julia Douds

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U.S. ATTORNEY'S OFFICE 501 Third Street, NW 4th Floor Washington, DC 20530 (202) 514−5134 Email: julia.douds@usdoj.gov TERMINATED: 09/30/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Beverly Maria Russell U.S. ATTORNEY'S OFFICE Civil Division 555 Fourth Street, NW Washington, DC 20530 (202) 252−2531 Fax: (202) 514−8780 Email: beverly.russell@usdoj.gov TERMINATED: 05/26/2016
John Cuong Truong U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Washington, DC 20530 (202) 252−2524 Fax: (202) 252−2599 Email: john.truong@usdoj.gov TERMINATED: 09/15/2009

Date Filed 12/20/2004
12/20/2004 04/25/2005 05/12/2005 05/18/2005 05/19/2005 06/06/2005
06/30/2005

# Docket Text
1 COMPLAINT against JAMES H. BILLINGTON (Filing fee $ 150) filed by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, MARK A. WILSON, CHRISTINE MILLS, RUNAKO BALONDEMU, AMY BARNES, ARNICE COOK, ROBERT COOPER, MICHAEL DURRAH, II, GERALDINE DUNCAN, SABRAE HILLIARD. (Attachments: # 1 Exhibit)(lc, ) (Entered: 12/22/2004)
SUMMONS (3) Issued as to JAMES H. BILLINGTON, U.S. Attorney and U.S. Attorney General (lc, ) (Entered: 12/22/2004)
2 Order to Answer on or before May 19, 2005. Signed by Judge Henry H. Kennedy, Jr., on April 25, 2005. (FL, ) (Entered: 04/25/2005)
3 NOTICE of Appearance by Julia Douds on behalf of all defendants (Douds, Julia) (Entered: 05/12/2005)
5 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on Attorney General. Date of Service Upon Attorney General 4/22/2005. (lc, ) (Entered: 05/23/2005)
4 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to JAMES H. BILLINGTON served on 4/22/2005, answer due 6/21/2005. (lc, ) (Entered: 05/23/2005)
6 MOTION to Dismiss by JAMES H. BILLINGTON. (Attachments: # 1 Exhibit Informal complaint# 2 Exhibit Withers Affidavit# 3 Exhibit Withers CV# 4 Exhibit Letter from Ricardo Grijalva# 5 Exhibit EEO Counselor's Report# 6 Exhibit Formal Complaint# 7 Exhibit LCR 2010−3.1# 8 Text of Proposed Order)(Douds, Julia) (Entered: 06/06/2005)
7 MOTION for Extension of Time to File Response/Reply as to 6 MOTION to Dismiss by CHRISTINE MILLS. (lc, ) (Entered: 07/05/2005)

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07/06/2005 07/06/2005 08/01/2005 08/01/2005
08/02/2005 08/02/2005 08/02/2005 08/02/2005 08/03/2005 08/03/2005
08/03/2005 08/19/2005 05/16/2006 05/22/2006 05/26/2006
08/01/2006

Minute order granting 7 plaintiffs' motion to extend time to respond to motion to dismiss. Plaintiffs shall have up to and including August 1, 2005, to file a response to defendants' motion to dismiss. Signed by Judge Henry H. Kennedy, Jr., on July 6, 2005. (FL, ) (Entered: 07/06/2005)
Set/Reset Deadlines: Plaintiff's Response to Dispositive Motions due by 8/1/2005. (rew, ) (Entered: 07/06/2005)
8 NOTICE of Appearance by Michael J. Snider on behalf of all plaintiffs (Snider, Michael) (Entered: 08/01/2005)
9 Memorandum in opposition to motion re 6 to Dismiss filed by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, MARK A. WILSON, CHRISTINE MILLS, RUNAKO BALONDEMU, AMY BARNES, ARNICE COOKE, ROBERT COOPER, MICHAEL DURRAH, II, GERALDINE DUNCAN, SABRAE HILLIARD. (Attachments: # 1 Exhibit 1 to Plaintiffs' Opposition# 2 Exhibit 2 (part a) to Plaintiffs' Opposition# 3 Exhibit 2 (part b) to Plaintiffs' Opposition# 4 Exhibit 3 to Plaintiffs' Opposition# 5 Exhibit 4 to Plaintiffs' Opposition# 6 Exhibit 5 to Plaintiffs' Opposition# 7 Exhibit 6 to Plaintiffs' Opposition# 8 Cook Affidavit and Exhibits# 9 Mills Affidavit and Exhibits# 10 Rule 56 Affidavit (Snider))(Snider, Michael) Modified on 8/2/2005 (lc, ). (Entered: 08/01/2005)
10 Unopposed MOTION for Extension of Time to File Response/Reply as to 9 Memorandum in Opposition,,, by JAMES H. BILLINGTON. (Attachments: # 1 Text of Proposed Order)(Douds, Julia) (Entered: 08/02/2005)
11 ERRATA to 9 by CHRISTINE MILLS. (Snider, Michael). Meorandum in Support and Proposed Order added on 8/3/2005 (lc, ). (Entered: 08/02/2005)
12 ENTERED IN ERROR.....ERRATA Plaintiffs' Memorandum of Law In Support of Response in Opposition To Defendant's Motion To Dismiss by CHRISTINE MILLS. (Snider, Michael) Modified on 8/3/2005 (lc, ). (Entered: 08/02/2005)
13 ENTERED IN ERROR.....ERRATA Proposed Order by CHRISTINE MILLS. (Snider, Michael) Modified on 8/3/2005 (lc, ). (Entered: 08/02/2005)
NOTICE OF CORRECTED DOCKET ENTRY: re 12 Errata, 13 Errata was entered in error and the documents filed have been added to docket entry #11. (lc, ) (Entered: 08/03/2005)
Minute order granting 10 defendant's unopposed moiton for an enlargement of time to file its reply. Defendant shall have up to and including August 19, 2005, within which to reply to 9 plaintiff's opposition to defendant's motion to dismiss. Signed by Judge Henry H. Kennedy, Jr., on August 3, 2005. Official paperless order (FL, ) (Entered: 08/03/2005)
Set/Reset Deadlines: Defendant's Reply to Plaintiff's opposition to Dispositive Motions due by 8/19/2005. (rew, ) (Entered: 08/03/2005)
14 REPLY to opposition to motion re 6 filed by JAMES H. BILLINGTON. (Attachments: # 1 Affidavit Supplemental Declaration of Claudia Withers)(Douds, Julia) (Entered: 08/19/2005)
15 Memorandum Opinion and Order. Signed by Judge Henry H. Kennedy, Jr., on May 16, 2006. (FL, ) (Entered: 05/16/2006)
16 Order For Initial Scheduling Conference. Initial scheduling conference set for August 11, 2006, at 9:45 a.m., in Courtroom 27A, before Judge Henry H. Kennedy, Jr. Signed by Judge Henry H. Kennedy, Jr., on May 22, 2006. (FL, ) (Entered: 05/22/2006)
17 ANSWER to 1 Complaint by JAMES H. BILLINGTON. Related document: 1 Complaint, filed by CHRISTINE MILLS,, RUNAKO BALONDEMU,, AMY BARNES,, ARNICE COOKE,, ROBERT COOPER,, MICHAEL DURRAH, II, GERALDINE DUNCAN,, SABRAE HILLIARD,, PRISCILLA IJEOMAH,, LAWRENCE PERRY,, WILLIAM ROWLAND,, MARK A. WILSON,.(Truong, John) Modified on 5/30/2006 (lc, ). (Entered: 05/26/2006)
18 MEET AND CONFER STATEMENT. (Truong, John) (Entered: 08/01/2006)

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08/08/2006 08/09/2006 08/09/2006
08/09/2006 08/10/2006 08/11/2006 08/14/2006 08/14/2006 08/25/2006
11/09/2006 12/11/2006
12/22/2006 12/22/2006 12/22/2006 01/31/2007
03/30/2007

19 ENTERED IN ERROR.....MEET AND CONFER STATEMENT. (Taylor, Jeffery) Modified on 8/9/2006 (lc, ). (Entered: 08/08/2006)
NOTICE OF CORRECTED DOCKET ENTRY: re 19 Meet and Confer Statement was entered in error and counsel was instructed to refile said pleading as a Status Report. (lc, ) (Entered: 08/09/2006)
20 STATUS REPORT STATEMENT OF THE CASE by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, MARK A. WILSON, CHRISTINE MILLS, RUNAKO BALONDEMU, AMY BARNES, ARNICE COOKE, ROBERT COOPER, MICHAEL DURRAH, II, GERALDINE DUNCAN, SABRAE HILLIARD. (Taylor, Jeffery) (Entered: 08/09/2006)
21 STATUS REPORT Defendant's Statement of the Case by JAMES H. BILLINGTON. (Truong, John) (Entered: 08/09/2006)
22 NOTICE of Appearance by Ari Taragin on behalf of all plaintiffs (Taragin, Ari) (Entered: 08/10/2006)
Minute Entry Initial cheduling Conference held on 8/11/2006 before Judge Henry H. Kennedy : Amended Pleading due by 12/11/2006. Status Conference set for 11/16/2007 09:45 AM in Courtroom 27A before Judge Henry H. Kennedy. (Court Reporter Annie Shaw) (tb) (Entered: 08/11/2006)
23 Scheduling Order: Status conference set for November 16, 2006, at 9:45 a.m., in Courtroom 27A, before Judge Henry H. Kennedy, Jr. Signed by Judge Henry H. Kennedy, Jr., on August 14, 2006. (FL, ) (Entered: 08/14/2006)
Set Deadlines/Hearings: Status Conference set for 11/16/2006 09:45 AM in Courtroom 27A before Judge Henry H. Kennedy. (adc) (Entered: 08/14/2006)
126 MOTION to Certify Class by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN (tr)(See Docket Entry 124 to view document. Counsel is reminded to docket all parts of the motion in future filings.) Modified on 9/8/2009 (jeb, ). (Entered: 08/26/2009)
Reset Hearings: Status Conference currently scheduled for 11/16/06 is OFF and rescheduled for 5/8/2007 @ 10:00 AM in Courtroom 27A before Judge Henry H. Kennedy. (ztj ) (Entered: 11/09/2006)
24 FIRST AMENDED CLASS ACTION COMPLAINT against JAMES H. BILLINGTON filed by DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, MARK A. WILSON, CHRISTINE MILLS, RUNAKO BALONDEMU, AMY BARNES, ARNICE COOKE, ROBERT COOPER, MICHAEL DURRAH, II, GERALDINE DUNCAN, SABRAE HILLIARD.(nmw, ) (Entered: 12/12/2006)
25 Consent MOTION for Extension of Time to Respond to First Amended Complaint by JAMES H. BILLINGTON. (Truong, John) (Entered: 12/22/2006)
MINUTE ORDER granting 25 Motion for Extension of Time to Respond to Complaint. (Kennedy, Henry) (Entered: 12/22/2006)
Reset Deadlines: Defendant's deadline to respond to plaintiff's first amended complaint by is extended to 1/31/2007. (tj, ) (Entered: 01/09/2007)
26 ANSWER to Amended Complaint by JAMES H. BILLINGTON. Related document: 24 Amended Complaint, filed by CHRISTINE MILLS,, RUNAKO BALONDEMU,, AMY BARNES,, ARNICE COOKE,, ROBERT COOPER,, MICHAEL DURRAH, II, GERALDINE DUNCAN,, SABRAE HILLIARD,, PRISCILLA IJEOMAH,, LAWRENCE PERRY,, WILLIAM ROWLAND,, MARK A. WILSON,, SHARON TAYLOR,, DAVID HUBBARD,, CLIFTON KNIGHT,.(Truong, John) (Entered: 01/31/2007)
27 Consent MOTION to Amend/Correct 24 Amended Complaint, 1 Complaint, by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHRISTINE MILLS,

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04/02/2007 04/02/2007 04/10/2007 04/12/2007
04/13/2007 04/13/2007
04/13/2007 04/27/2007 05/08/2007 07/12/2007
07/23/2007 07/24/2007

RUNAKO BALONDEMU, GERALDINE DUNCAN (Attachments: # 1 Text of Proposed Order Second amended complaint# 2 Supplement Plaintiff's Second Amended Complaint)(Taylor, Jeffery) (Entered: 03/30/2007)
Minute order granting 27 plaintiffs' consent motion for leave of court to amend complaint. Signed by Judge Henry H. Kennedy, Jr., on April 2, 2007. Official paperless order (FL, ) (Entered: 04/02/2007)
28 SECOND AMENDED CLASS ACTION COMPLAINT against JAMES H. BILLINGTON filed by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN, CHARLES MWALIMU .(zlc, ) Modified on 4/3/2007 (zlc, ). (Entered: 04/03/2007)
29 ANSWER to Amended Complaint by JAMES H. BILLINGTON. Related document: 28 Amended Complaint, filed by LAWRENCE PERRY, CLIFTON KNIGHT, GERALDINE DUNCAN, WILLIAM ROWLAND, RUNAKO BALONDEMU, CHRISTINE MILLS, SHARON TAYLOR, CHARLES MWALIMU, PRISCILLA IJEOMAH, DAVID HUBBARD.(Truong, John) (Entered: 04/10/2007)
30 Consent MOTION Modification of Scheduling Order, Dkt 23 re 23 Scheduling Order by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN (Attachments: # 1 Text of Proposed Order Consent Motion to Modify Scheduling Order)(Taylor, Jeffery) (Entered: 04/12/2007)
Minute order granting 30 plaintiffs' consent motion to modify scheduling order for class certification discovery. Signed by Judge Henry H. Kennedy, Jr., on April 13, 2007. Official paperless order (FL, ) (Entered: 04/13/2007)
Modified Scheduling Order [30}: Close of class discovery August 13, 2007; plaintiffs R. 26(a)(2) expert disclosures September 17, 2007; (depositions of plaintiffs experts) defendants R. 26(a)(2) expert disclosures November 12, 2007; (depositions of defendants experts); plaintiffs rebuttal expert disclosures January 11, 2008; and status and briefing scheduling conference scheduled for February 10, 2008. (FL, ) (Entered: 04/13/2007)
Set Deadlines: Close of discovery 8/13/2007; plaintiffs rebuttal expert disclosures due by January 11, 2008; Plaintiff Rule 26a2 due by 9/17/2007 and defendant Rule 26a2 due by 11/12/2007. (tj ) (Entered: 05/07/2007)
Reset Hearings: Status Conference currently set for February 10, 2008 is rescheduled for Monday, February 11, 2008 @ 09:45 AM in Courtroom 27A before Judge Henry H. Kennedy. (tj ) (Entered: 04/27/2007)
31 NOTICE OF RELATED CASE by all plaintiffs. Case related to Case No. 06cv1734. (Taylor, Jeffery) (Entered: 05/08/2007)
32 MOTION for Extension of Time to Complete Discovery and all deadlines in the Scheduling Order to be extended by sixty days by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN (Attachments: # 1 Text of Proposed Order Granting extension of all deadlines in Dkt 30 by sixty days)(Taylor, Jeffery) (Entered: 07/12/2007)
33 RESPONSE to 32 Plaintiffs' Motion for Extension of Discovery in Scheduling Order (Dkt. No. 32) filed by JAMES H. BILLINGTON. (Truong, John) Modified on 7/24/2007 (lc, ). (Entered: 07/23/2007)
34 REPLY re: 32 filed by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN. (Taylor, Jeffery) Modified on 7/25/2007 (lc, ). (Entered: 07/24/2007)

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07/25/2007
08/13/2007
08/19/2007
08/19/2007
08/27/2007 09/04/2007 09/04/2007 09/04/2007 09/06/2007 09/06/2007 09/07/2007
09/14/2007 09/27/2007 10/15/2007

Minute order granting 32 plaintiffs' motion for extension of discovery in scheduling order. All discovery and current deadlines in the court's modified scheduling order re: 23 docketed April 13, 2007, shall be extended by sixty days. Signed by Judge Henry H. Kennedy, Jr., on July 25, 2007. Official paperless order(FL, ) Modified on 7/25/2007 (FL, ). (Entered: 07/25/2007)
35 MOTION to Compel Discovery Responses by JAMES H. BILLINGTON (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit # 8 Exhibit # 9 Exhibit # 10 Exhibit # 11 Exhibit # 12 Exhibit # 13 Exhibit # 14 Exhibit # 15 Exhibit # 16 Exhibit # 17 Exhibit # 18 Exhibit)(Truong, John) (Entered: 08/13/2007)
36 MOTION to Consolidate Cases 06cv1734 and 04cv2205 by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN (Attachments: # 1 Text of Proposed Order Consolidating cases by paperless order)(Taylor, Jeffery) (Entered: 08/19/2007)
37 Memorandum in opposition to re 35 MOTION to Compel Discovery Responses with Proposed Order and Exhibits 1 −3 filed by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN. (Attachments: # 1 Text of Proposed Order DENYING Defendant's Motion to Compel Discovery# 2 Exhibit ONE − Appendix B of the Local Rules# 3 Exhibit Two − Plaintiff's Initial Discovery Responses# 4 Exhibit THREE − Plaintiffs' Second Discovery Responses)(Taylor, Jeffery) (Entered: 08/19/2007)
38 REPLY to opposition to motion re 35 MOTION to Compel Discovery Responses filed by JAMES H. BILLINGTON. (Attachments: # 1 Exhibit)(Truong, John) (Entered: 08/27/2007)
39 Order of Referral 35 and 36 to United States Magistrate Judge Alan Kay. Signed by Judge Henry H. Kennedy, Jr., on September 4, 2007. (FL, ) (Entered: 09/04/2007)
40 Unopposed MOTION for Extension of Time to File Response/Reply as to 36 MOTION to Consolidate Cases 06cv1734 and 04cv2205 by JAMES H. BILLINGTON (Truong, John) (Entered: 09/04/2007)
CASE REFERRED to Magistrate Judge Alan Kay for resolution of motions relating to discovery and motion to compel 35 and motion to consolidate 36 . (jeb, ) (Entered: 09/11/2007)
ORDER granting 40 unopposed Motion for Extension of Time to File Response/Reply, until September 6, 2007. Signed by Magistrate Judge Alan Kay on 09/06/07, nunc pro tunc September 4, 2007. (DM) (Entered: 09/06/2007)
41 Memorandum in opposition to re 36 MOTION to Consolidate Cases 06cv1734 and 04cv2205 filed by JAMES H. BILLINGTON. (Truong, John) (Entered: 09/06/2007)
42 REPLY to opposition to motion re 36 MOTION to Consolidate Cases 06cv1734 and 04cv2205 filed by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN. (Taylor, Jeffery) (Entered: 09/07/2007)
43 MEMORANDUM ORDER denying 36 Plaintiffs' Motion to Consolidate Cases. Signed by Magistrate Judge Alan Kay on 9/14/07.(lcak1) (Entered: 09/14/2007)
44 MEMORANDUM ORDER granting 35 Defendant's Motion to Compel Discovery Responses. Signed by Magistrate Judge Alan Kay on 9/27/07. (lcak1) (Entered: 09/27/2007)
45 MOTION for Extension of Time to Modiy Scheduling Order 23 by an additional sixty days with proposed order by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO

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10/25/2007
10/25/2007
10/30/2007
11/05/2007 11/07/2007 11/09/2007
11/09/2007 11/29/2007 11/29/2007 11/30/2007 12/04/2007 12/06/2007 02/05/2008

BALONDEMU, GERALDINE DUNCAN (Taylor, Jeffery) (Entered: 10/15/2007)
46 Memorandum in opposition to re 45 MOTION for Extension of Time to Modiy Scheduling Order 23 by an additional sixty days with proposed order MOTION for Extension of Time to Modiy Scheduling Order 23 by an additional sixty days with proposed order filed by JAMES H. BILLINGTON. (Truong, John) (Entered: 10/25/2007)
47 REPLY to opposition to motion re 45 MOTION for Extension of Time to Modiy Scheduling Order 23 by an additional sixty days with proposed order MOTION for Extension of Time to Modiy Scheduling Order 23 by an additional sixty days with proposed order and Exhibit One filed by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN. (Attachments: # 1 Exhibit ONE − RETURNED MAIL (Taylor and Perry) from US Postal Service)(Taylor, Jeffery) (Entered: 10/25/2007)
48 ERRATA by Plaintiffs RE 47 REPLY to opposition to motion by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN 47 Reply to opposition to Motion,, filed by LAWRENCE PERRY, CLIFTON KNIGHT, GERALDINE DUNCAN, WILLIAM ROWLAND, RUNAKO BALONDEMU, CHRISTINE MILLS, SHARON TAYLOR, CHARLES MWALIMU, PRISCILLA IJEOMAH, DAVID HUBBARD. (Taylor, Jeffery) Modified on 10/31/2007 (lc, ). (Entered: 10/30/2007)
49 Consent MOTION for Hearing To Reschedule Nov. 16, 2007 Hearing by JAMES H. BILLINGTON (Truong, John) (Entered: 11/05/2007)
50 Order denying 45 . Signed by Judge Henry H. Kennedy, Jr., on November 7, 2007. (FL, ) (Entered: 11/07/2007)
Minute order granting 49 defendant's consent motion to reschedule November 16, 2007 status hearing. The status hearing scheduled for November 16, 2007 is vacated and is rescheduled to November 30, 2007 at 11:45 a.m. Signed by Judge Henry H. Kennedy, Jr., on November 9, 2007. Official paperless order (FL, ) (Entered: 11/09/2007)
Reset Hearings: Status Conference is rescheduled for 11/30/2007 @ 11:45 AM in Courtroom 27A before Judge Henry H. Kennedy. (tj) (Entered: 11/09/2007)
Reset Hearings: Status Conference is reset set for 2/15/2008 @ 12:00 PM in Courtroom 27A before Judge Henry H. Kennedy. (tj ) (Entered: 11/29/2007)
NOTICE OF CORRECTED DOCKET ENTRY: Rescheduling of status conference for 2/15/08 @ 12:00 was entered in error and the status conference in this action remains scheduled for 11/30/07 @ 11:45am(tj ) (Entered: 11/29/2007)
Minute Entry for Proceedings held before Judge Henry H. Kennedy : Status Conference held on 11/30/2007. Next status conference is set for 2/11/2008 @ 09:45 AM in Courtroom 27A before Judge Henry H. Kennedy. (Court Reporter Annie Shaw.) (tj ) (Entered: 11/30/2007)
51 STIPULATION Consent Protective Order by JAMES H. BILLINGTON. (Truong, John) (Entered: 12/04/2007)
52 CONSENT PROTECTIVE ORDER setting forth procedures for handling confidential material; allowing designated material to be filed under seal(Signed by Judge Henry H. Kennedy on 12/6/07)(tj ) (Entered: 12/06/2007)
53 Unopposed MOTION to Withdraw as Attorney and Firm by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, MARK A. WILSON, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, AMY BARNES, ARNICE COOKE, ROBERT COOPER, MICHAEL DURRAH, II, GERALDINE DUNCAN, SABRAE HILLIARD (Attachments: # 1 Exhibit Letter to Plaintiffs)(Taragin, Ari)

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02/06/2008 02/07/2008 02/08/2008 02/08/2008 02/08/2008 02/11/2008
02/12/2008 02/12/2008 03/03/2008 03/03/2008 03/03/2008 03/13/2008 03/14/2008

(Entered: 02/05/2008)
54 Unopposed MOTION to Withdraw as Attorney Jeffery C Taylor, Esq. by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN (Taylor, Jeffery) (Entered: 02/06/2008)
ORDER granting 54 Unopposed Motion for Withdrawal of Counsel by Jeffrey C. Taylor. Signed by Judge Henry H. Kennedy, Jr. on February 7, 2008. (NP) (Entered: 02/07/2008)
55 NOTICE re: Plaintiff's notice to clarify Defendant's position by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN re 53 Unopposed MOTION to Withdraw as Attorney and Firm (Taragin, Ari) (Entered: 02/08/2008)
56 MOTION to Appoint Counsel by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN (lc, ) (Entered: 02/11/2008)
57 RESPONSE re 53 Unopposed MOTION to Withdraw as Attorney and Firm filed by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN. (See Docket Entry 56 to view document) (lc, ) (Entered: 02/11/2008)
Minute Entry for proceedings held before Judge Henry H. Kennedy: Status Conference held on 2/11/2008. Motion for plaintiffs counsel to withdraw appearance is granted. Plaintiffs are granted additional time to retain new counsel. If new counsel is not retained, plaintiffs shall proceed pro se at the next status conference is set for 4/1/2008 @ 09:45 AM in Courtroom 27A before Judge Henry H. Kennedy. (Court Reporter Annie Shaw.) (tj, ) (Entered: 02/13/2008)
MINUTE ORDER denying without prejudice 56 plaintiff's "Motion to Agree." To the extent that plaintiff's filing captioned "Motion to Agree" 56 seeks the appointment of counsel, the motion is denied without prejudice to renewal in accordance with the directives of the court set forth in open court on February 11, 2008. Signed by Judge Henry H. Kennedy, Jr. on February 12, 2008. (NP) (Entered: 02/12/2008)
MINUTE ORDER granting 53 Unopposed Motion for Leave of Court to Withdraw from Representation of Plaintiffs. Attorneys Michael J. Snider and Ari Taragin terminated. Signed by Judge Henry H. Kennedy, Jr. on February 12, 2008. (NP) (Entered: 02/12/2008)
58 MOTION to Appoint Counsel by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, ARNICE COOKE, GERALDINE DUNCAN (jf, ) (Entered: 03/04/2008)
59 MOTION to Amend Designation by CHARLES MWALIMU. (jf, ) (Entered: 03/04/2008)
"Leave to file denied" by Judge Kennedy of the document titled "Discrimination Complaints and Additional Evidence" from plaintiff Christine Mills. The document will be mailed back to the filer. (lc, ) (lc, ) (Entered: 03/06/2008)
61 MOTION for Leave to File Discrimination complaints and additional evidence by CHRISTINE MILLS. (Attachments: # 1 Exhibit Amended Complaint)(jf, ) (Entered: 03/17/2008)
60 MOTION to Vacate and Reschedule the April 1, 2008 Status Hearing by JAMES H. BILLINGTON (Truong, John) (Entered: 03/14/2008)

Case: 1:04-cv-2205 As of: 03/12/2017 09:23 PM EDT 17 of 47

03/14/2008 03/17/2008 03/19/2008 03/19/2008 03/20/2008 03/28/2008
03/31/2008 04/01/2008
04/08/2008 04/11/2008
04/14/2008 04/28/2008 04/28/2008 05/15/2008 06/03/2008 06/19/2008

MINUTE ORDER granting 60 Defendant's Motion to Reschedule the April 1, 2008 Status Hearing. The clerk of the court shall reschedule the status hearing on a date and at a time, after April 21, 2008, when the business of the court permits. Signed by Judge Henry H. Kennedy, Jr. on March 14, 2008. (NP) (Entered: 03/14/2008)
Reset Hearings: Status Conference currently scheduled for 4/1/08 is VACATED and rescheduled for 4/28/2008 @ 11:30 AM in Courtroom 27A before Judge Henry H. Kennedy. (tj ) (Entered: 03/17/2008)
62 MOTION for Extension of Time to File Response/Reply as to 58 MOTION to Appoint Counsel by JAMES H. BILLINGTON (Truong, John) (Entered: 03/19/2008)
63 Memorandum in opposition to re 58 MOTION to Appoint Counsel filed by JAMES H. BILLINGTON. (Attachments: # 1 Gov. Exh. A)(Truong, John) (Entered: 03/19/2008)
MINUTE ORDER granting 62 Defendant's Motion to File Out of Time Its Response to Plaintiff's Motion to Appoint Pro Bono Counsel. Signed by Judge Henry H. Kennedy, Jr. on March 20, 2008. (NP) (Entered: 03/20/2008)
64 RESPONSE re 60 MOTION to Vacate and Reschedule the April 1, 2008 Status Hearing filed by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN. (jf, ) (Entered: 03/31/2008)
MINUTE ORDER granting 60 Motion to Vacate and Reschedule the April 1, 2008 Status Hearing. The clerk of the court shall reschedule the status hearing to take place after April 21, 2008,when the buisiness of the court permits. (Kennedy, Henry) (Entered: 03/31/2008)
65 MOTION for Extension of Time to respond to defendant's motion to appoint counsel by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN (jf, ) (Entered: 04/02/2008)
66 ORDER denying 58 Plaintiff's Motion to the Court to Appoint Pro Bono Counsel in the Instant Case. Signed by Judge Henry H. Kennedy, Jr. on April 8, 2008. (NP) (Entered: 04/08/2008)
67 NOTICE of Appearance by Jeffery Charles Taylor on behalf of PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN (jf, ) (Entered: 04/14/2008)
MINUTE ORDER finding as moot 65 Motion for Extension of Time to File Response/Reply (Kennedy, Henry) (Entered: 04/14/2008)
MINUTE ORDER denying 59 Motion to Amend Designation. Signed by Judge Henry H. Kennedy, Jr. on April 28, 2008. (NP) (Entered: 04/28/2008)
Minute Entry for proceedings held before Judge Henry H. Kennedy: Status Conference held on 4/28/2008. Plaintiff's counsel's request to require mediation is denied. Next status conference is set for 9/30/2008 @ 10:00 AM in Courtroom 27A before Judge Henry H. Kennedy.). (Court Reporter Annie Shaw.) (tj ) (Entered: 04/30/2008)
68 MOTION for Sanctions For Disobeying Discovery Order Or, In the Alternative, To Compel Additional Discovery Responses by JAMES H. BILLINGTON (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Truong, John) (Entered: 05/15/2008)
69 NOTICE of Filing Certificate of Service by JAMES H. BILLINGTON re 68 MOTION for Sanctions For Disobeying Discovery Order Or, In the Alternative, To Compel Additional Discovery Responses (Attachments: # 1 Exhibit #1, # 2 Exhibit #2)(Truong, John) (Entered: 06/03/2008)
70 Consent MOTION for Extension of Time to File response to Defendants Motion For Sanctions for Disobeying Discovery Order Or, In The Alternative, To Compel Additional Discovery Responses. by PRISCILLA IJEOMAH, LAWRENCE PERRY,

Case: 1:04-cv-2205 As of: 03/12/2017 09:23 PM EDT 18 of 47

06/20/2008 06/20/2008 06/23/2008
07/03/2008 07/28/2008 07/28/2008 07/29/2008 08/04/2008 08/04/2008 08/04/2008 08/04/2008
08/04/2008

WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN (Taylor, Jeffery) (Entered: 06/19/2008)
MINUTE ORDER granting 70 Plaintiffs' Consent Extension of Time Request. Plaintiffs shall have until June 23, 2008 to file their Opposition to 68 Defendant's Motion for Sanctions for Disobeying Discovery Order Or, In The Alternative, To Compel Additional Discovery Responses. Signed by Magistrate Judge Alan Kay on 6/20/08. (lcak1) (Entered: 06/20/2008)
Set/Reset Deadlines : Plaintiffs' Response in Opposition to Defendant's Motion for Sanctions for Disobeying Discovery Order, or in the alternative, to Compel Additional Discovery Responses 68 due by 6/23/08. (kk) (Entered: 06/20/2008)
71 Memorandum in opposition to re 68 MOTION for Sanctions For Disobeying Discovery Order Or, In the Alternative, To Compel Additional Discovery Responses with proposed Order filed by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN. (Taylor, Jeffery) (Entered: 06/23/2008)
72 REPLY to opposition to motion re 68 MOTION for Sanctions For Disobeying Discovery Order Or, In the Alternative, To Compel Additional Discovery Responses filed by JAMES H. BILLINGTON. (Truong, John) (Entered: 07/03/2008)
73 MEMORANDUM ORDER granting 68 Defendant's Motion for Sanctions for Disobeying Discovery Order, or, in the Alternative, to Compel Additional Discovery Responses. Signed by Magistrate Judge Alan Kay on 7/28/08. (lcak1) (Entered: 07/28/2008)
74 ENTERED IN ERROR.....Consent MOTION for Extension of Time to File Reply Brief by JAMES H. BILLINGTON (Truong, John) Modified on 7/29/2008 (tr, ). (Entered: 07/28/2008)
NOTICE re 74 Motion for Extension of Time to; emailed to john.truong@usdoj.gov, cc'd 3 associated attorneys −− The PDF file you docketed contained errors: 1. Wrong document/case, 2. This document has been entered in error it was filed in the wrong case. (tr, ) (Entered: 07/29/2008)
75 First MOTION for Extension of Time to File Responsive Pleadings by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN (Taylor, Jeffery) (Entered: 08/04/2008)
76 MOTION for Extension of Time to Submit Statement of Fees and Costs by JAMES H. BILLINGTON (Truong, John) (Entered: 08/04/2008)
MINUTE ORDER granting 76 Defendant's Motion for an Extension of Time to Submit Statement of Costs. Defendant's Statement of Fees and Costs is now due September 8, 2008. Signed by Magistrate Judge Alan Kay on 8/4/08. (lcak1) (Entered: 08/04/2008)
MINUTE ORDER denying without prejudice 75 Plaintiffs' Motion to Extend Time to File Responsive Pleadings. The movants did not comply with LCvR 7(m), which imposes a duty on counsel to confer with opposing counsel before filing any nondispositive motion and to "include [in the motion] a statement that the required discussion occurred, and a statement as to whether the motion is opposed." Signed by Judge Henry H. Kennedy, Jr. on August 4, 2008. (NP) Modified on 8/4/2008 (NP). (Entered: 08/04/2008)
77 Amended MOTION for Extension of Time to File Responsive Pleadings in this case by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN (Taylor, Jeffery) (Entered: 08/04/2008)

Case: 1:04-cv-2205 As of: 03/12/2017 09:23 PM EDT 19 of 47

08/05/2008 08/19/2008 09/03/2008 09/04/2008
09/08/2008 09/22/2008 09/30/2008
09/30/2008
10/01/2008
10/01/2008 10/03/2008 10/03/2008
10/06/2008
10/06/2008

MINUTE ORDER granting 77 Motion to Extend Time to File Responsive Pleadings. Accordingly, plaintiffs' responsive pleadings are due on September 5, 2008. Signed by Judge Henry H. Kennedy, Jr. on August 5, 2008. (NP) (Entered: 08/05/2008)
Set/Reset Deadlines: Defendant's statement of fees and costs due by 9/8/08. (kk) (Entered: 08/19/2008)
78 MOTION for Extension of Time to Submit Statement of Fees and Costs by JAMES H. BILLINGTON (Truong, John) (Entered: 09/03/2008)
79 Proposed MOTION for Extension of Time to File Responsive Pleadings by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN (Taylor, Jeffery) (Entered: 09/04/2008)
MINUTE ORDER granting 78 Defendant's Motion for an Extension of Time to Submit Statement of Costs. Defendant's Statement of Fees and Costs is now due twenty (20) days after the District Court rules on any Local Rule 72.2 objection. Signed by Magistrate Judge Alan Kay on 09/08/2008. (lcak1) (Entered: 09/08/2008)
MINUTE ORDER granting 79 Motion to Extend Time to File Responsive Pleadings. Plaintiffs' response is due on October 3, 2008. Signed by Judge Henry H. Kennedy, Jr. on September 22, 2008. (NP) (Entered: 09/22/2008)
80 Consent MOTION for Extension of Time to To Have Status Conference by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN (Taylor, Jeffery) (Entered: 09/30/2008)
Minute Entry for proceedings held before Judge Henry H. Kennedy: Status Conference held on 9/30/2008. Counsel for plaintiffs not present. The court will issue an order to show cause requiring plaintiffs counsel to explain his failure to appear. Next status conference will be held on 1/9/2009 @ 11:00 AM in Courtroom 27A before Judge Henry H. Kennedy.). (Court Reporter Annie Shaw.) (tj ) (Entered: 09/30/2008)
MINUTE ORDER. Plaintiffs' Consent Motion for Extension of Time to Have Status Conference 80 is denied as it is moot. The court observes that the motion was filed electronically at 10:00 A.M., the time the status hearing was scheduled to commence. Signed by Judge Henry H. Kennedy, Jr. on October 1, 2008. (NP) (Entered: 10/01/2008)
81 ORDER TO SHOW CAUSE. Show Cause Response due by October 14, 2008. Signed by Judge Henry H. Kennedy, Jr. on October 1, 2008. (NP) (Entered: 10/01/2008)
82 ENTERED IN ERROR..... MOTION to Alter Judgment by Magistrate Judge by RUNAKO BALONDEMU (Taylor, Jeffery) Modified on 10/6/2008 (nmw, ). (Entered: 10/03/2008)
83 ENTERED IN ERROR.....RESPONSE TO ORDER OF THE COURT re 73 Order on Motion for Sanctions filed by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN. (Taylor, Jeffery) Modified on 10/6/2008 (nmw, ). (Entered: 10/03/2008)
NOTICE OF ERROR re 82 Motion to Alter Judgment; emailed to mrtayloresquire@comcast.net, cc'd 3 associated attorneys −− The PDF file you docketed contained errors: 1. Incorrect header/caption/case number, 2. Please refile document, 3. Doc. entered in error; incorrect case number; proposed order should not contain judge's signature (nmw, ) (Entered: 10/06/2008)
NOTICE OF ERROR re 83 Response to Order of the Court; emailed to mrtayloresquire@comcast.net, cc'd 3 associated attorneys −− The PDF file you docketed contained errors: 1. Doc. entered in error; only refile Responsive Pleading once as a Motion to Alter Judgment (nmw, ) (Entered: 10/06/2008)

Case: 1:04-cv-2205 As of: 03/12/2017 09:23 PM EDT 20 of 47

10/06/2008 10/07/2008 10/08/2008 10/13/2008
10/13/2008 10/14/2008 10/15/2008 10/15/2008 10/16/2008 10/17/2008 10/31/2008 11/03/2008 11/06/2008

84 ENTERED IN ERROR..... MOTION to Strike Document 82 file by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN (Taylor, Jeffery) Modified on 10/7/2008 (tr). (Entered: 10/06/2008)
NOTICE OF ERROR re 84 Motion to Strike; emailed to mrtayloresquire@comcast.net, cc'd 3 associated attorneys −− The PDF file you docketed contained errors: 1. Incorrect document/case, 2. Please refile document, 3. Counsel must used correct case number 04−cv−2205 when filing pleadings (tr, ) (Entered: 10/07/2008)
85 Amended MOTION to Strike Document 82 file by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN (Taylor, Jeffery) (Entered: 10/08/2008)
86 ENTERED IN ERROR..... MOTION for Order to Show Cause To Avoid Sanctions and/or Contempt of Court by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN (Taylor, Jeffery) Modified on 10/14/2008 (tr). (Entered: 10/13/2008)
87 RESPONSE TO ORDER OF THE COURT re 81 Order to Show Cause filed by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU. (tr) (Entered: 10/14/2008)
NOTICE OF CORRECTED DOCKET ENTRY: re 86 MOTION for Order to Show Cause To Avoid Sanctions and/or Contempt of Court was entered in error and clerk has refiled said pleading using correct event on behalf of counsel. (tr) (Entered: 10/14/2008)
88 NOTICE of Appearance by Beverly Maria Russell on behalf of JAMES H. BILLINGTON (Russell, Beverly) (Entered: 10/15/2008)
89 ENTERED IN ERROR.....Memorandum in opposition to re 82 MOTION to Alter Judgment by Magistrate Judge filed by JAMES H. BILLINGTON. (Russell, Beverly) Modified on 10/16/2008 (tr). (Entered: 10/15/2008)
NOTICE OF ERROR re 89 Memorandum in Opposition; emailed to beverly.russell@usdoj.gov, cc'd 5 associated attorneys −− The PDF file you docketed contained errors: 1. Please refile document, 2. Opposition linked to Motion that has been terminated and Entered in Error. (tr, ) (Entered: 10/16/2008)
90 ORDER imposing sanctions on Jeffery Charles Taylor for failure to appear for the scheduled status conference on September 30, 2008. Signed by Judge Henry H. Kennedy, Jr. on October 17, 2008. (NP) (Entered: 10/17/2008)
91 MOTION for Sanctions for Disobeying Discovery Order or, in the Alternative,, MOTION to Compel Additional Responses by JAMES H. BILLINGTON (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 10/31/2008)
92 NOTICE of Filing Exhibits in Support of Defendant's Motion for Sanctions for Disobeying Discovery Order or, in the Alternative, to Compel Additional Responses by JAMES H. BILLINGTON (Attachments: # 1 Exhibit 1. E−Mail Correspondence, October 16−17, 2008, # 2 Exhibit 2. E−Mail Correspondence, Oct. 20, 2008)(Russell, Beverly) (Entered: 11/03/2008)
93 STATUS REPORT of Plaintiffs Compliance of Court Order by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN. (Taylor, Jeffery) (Entered: 11/06/2008)

Case: 1:04-cv-2205 As of: 03/12/2017 09:23 PM EDT 21 of 47

11/10/2008
11/12/2008 11/13/2008
11/25/2008 01/08/2009 01/08/2009
01/09/2009 01/09/2009
01/21/2009 01/21/2009 02/03/2009 02/03/2009 02/27/2009

94 ENTERED IN ERROR.....Memorandum in opposition to re 91 MOTION for Sanctions for Disobeying Discovery Order or, in the Alternative, MOTION to Compel Additional Responses and all Filing Documents filed by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN. (Taylor, Jeffery) Modified on 11/12/2008 (tr). (Entered: 11/10/2008)
NOTICE OF ERROR re 94 Memorandum in Opposition; emailed to mrtayloresquire@comcast.net, cc'd 4 associated attorneys −− The PDF file you docketed contained errors: 1. Incorrect header/caption/case number, 2. Please refile document, 3. Counsel is advised to refile pleading with correct case number 04−cv−2205 not 04−cv−2203 (tr, ) (Entered: 11/12/2008)
95 Memorandum in opposition to re 91 MOTION for Sanctions for Disobeying Discovery Order or, in the Alternative, MOTION to Compel Additional Responses and any Filed Documents, dated November 3, 2008 filed by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN. (Taylor, Jeffery) (Entered: 11/13/2008)
96 REPLY to opposition to motion re 91 MOTION for Sanctions for Disobeying Discovery Order or, in the Alternative, MOTION to Compel Additional Responses filed by JAMES H. BILLINGTON. (Russell, Beverly) (Entered: 11/25/2008)
97 Unopposed MOTION for Order by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS (Attachments: # 1 Text of Proposed Order Unopposed Motion)(Taylor, Jeffery) (Entered: 01/08/2009)
98 ENTERED IN ERROR.....STATUS REPORT by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN. (Attachments: # 1 Supplement typographical error correction)(Taylor, Jeffery) Modified on 1/9/2009 (tr). (Entered: 01/08/2009)
NOTICE OF ERROR re 98 Status Report; emailed to mrtayloresquire@comcast.net, cc'd 5 associated attorneys −− The PDF file you docketed contained errors: 1. Please refile document, 2. Counsel is advised document and event do not match (tr, ) (Entered: 01/09/2009)
Minute Entry for proceedings held before Judge Henry H. Kennedy: Status Conference held on 1/9/2009. Plaintiff's counsel Jeffery C. Taylor is not present. Plaintiffs advise the court that new counsel David L. Rose has been retained, and all plainitffs are in the process of finalizing an agreement. New counsel shall file a notice of appearance prior to the next status conference now scheduled for 2/6/2009 @ 3:30 PM in Courtroom 27A before Judge Henry H. Kennedy (Court Reporter Annie Shaw.) (tj ) (Entered: 01/12/2009)
99 NOTICE of Appearance by David Louis Rose on behalf of all plaintiffs (Rose, David) (Entered: 01/21/2009)
100 NOTICE of Appearance by Joshua N. Rose on behalf of all plaintiffs (Rose, Joshua) (Entered: 01/21/2009)
101 MOTION to Continue Status Conference by CHRISTINE MILLS (Attachments: # 1 Text of Proposed Order)(Rose, David) (Entered: 02/03/2009)
MINUTE ORDER granting 101 Motion to Continue Status Conference. The motion to continue the February 6, 2009, hearing is granted and shall be rescheduled by the clerk to take place on a date and at a time when the business of the court permits and, if possible, on the date proposed by counsel. Signed by Judge Henry H. Kennedy, Jr. on February 3, 2009. (NP) (Entered: 02/03/2009)
Set Hearings: Status Conference is now set for 3/13/2009 @ 2:00 PM in Courtroom 27A before Judge Henry H. Kennedy. (tj ) (Entered: 02/27/2009)

Case: 1:04-cv-2205 As of: 03/12/2017 09:23 PM EDT 22 of 47

03/13/2009
03/18/2009
03/23/2009 03/24/2009
03/27/2009
03/27/2009 03/27/2009
03/30/2009
03/31/2009 04/02/2009 04/03/2009 04/06/2009 04/08/2009 04/08/2009

Minute Entry for proceedings held before Judge Henry H. Kennedy: Status Conference held on 3/13/2009. Plaintiffs are granted permission to file a motion for class certification (out of time) by 3/27/2009; Government's opposition to be filed by 4/10/2009; and Plantiffs reply shall be filed by 4/17/2009. Next status conference is set for 9/18/2009 @ 10:30 AM in Courtroom 27A before Judge Henry H. Kennedy.). (Court Reporter Annie Shaw.) (tj ) (Entered: 03/13/2009)
MINUTE ORDER re 91 MOTION for Sanctions for Disobeying Discovery Order or, in the Alternative, MOTION to Compel Additional Responses. The parties are directed to submit a brief status report to the Court by April 3, 2009 discussing the current status of discovery and what, if any, issues in the above referenced Motion remain for the Court's determination. Signed by Magistrate Judge Alan Kay on 3/18/09. (lcak1) (Entered: 03/18/2009)
102 NOTICE to the Court on the Minute Entry Regarding the March 13, 2009 Status Conference by JAMES H. BILLINGTON (Russell, Beverly) (Entered: 03/23/2009)
103 ORDER correcting Minute Order of March 13, 2009. Plaintiffs may file a motion for leave to file a motion for class certification by March 27, 2009; defendants opposition must be filed by April 10, 2009; and plaintiffs' reply must be filed by April 17, 2009. Signed by Judge Henry H. Kennedy, Jr. on March 24, 2009. (NP) (Entered: 03/24/2009)
104 STRICKEN PURSUANT TO ORDER FILED 4/8/2009..... MOTION to Certify Class by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN (Taylor, Jeffery) Modified on 4/9/2009 (tr, ). (Entered: 03/27/2009)
105 MOTION for Leave to File A Motion for Class Certification by CHRISTINE MILLS (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Text of Proposed Order)(Rose, David) (Entered: 03/27/2009)
106 STRICKEN PURSUANT TO ORDER FILED 04/8/2009.....EXHIBIT re 104 by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN (Taylor, Jeffery) Modified on 3/30/2009 to correct document filed (tr). Modified on 4/9/2009 (tr, ). (Entered: 03/27/2009)
NOTICE OF CORRECTED DOCKET ENTRY: re 106 EXHIBIT was entered in as Motion by counsel. The clerk has made the necessary corrections to this docket entry to correct the event to reflect the document filed an Exhibit related to Docket Entry 104 . Counsel is advised in future filings that exhibits are not to be docketed as a Motion. (tr) (Entered: 03/30/2009)
107 SUPPLEMENTAL MEMORANDUM to re 105 MOTION for Leave to File A Motion for Class Certification, 104 MOTION to Certify Class As Corrected and Amended filed by CHRISTINE MILLS. (Rose, David) (Entered: 03/31/2009)
108 STATUS REPORT (Filed In Response to March 23, 2009 Order) by JAMES H. BILLINGTON. (Russell, Beverly) (Entered: 04/02/2009)
109 STATUS REPORT of Plaintiffs to Magistrate Judge Kay by CHRISTINE MILLS. (Rose, David) (Entered: 04/03/2009)
110 Amended MOTION to Amend/Correct 105 MOTION for Leave to File A Motion for Class Certification by CHRISTINE MILLS (Attachments: # 1 Text of Proposed Order)(Rose, David) (Entered: 04/06/2009)
111 Unopposed MOTION to Strike Notice of Corrected Docket Entry, 104 MOTION to Certify Class by CHRISTINE MILLS (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1)(Rose, David) (Entered: 04/08/2009)
112 ORDER granting 111 Unopposed Motion to Strike Plaintiff's Motion for Class Certification 104 and 106 . Signed by Judge Henry H. Kennedy, Jr. on April 8, 2009. (NP) (Entered: 04/08/2009)

Case: 1:04-cv-2205 As of: 03/12/2017 09:23 PM EDT 23 of 47

04/10/2009 04/15/2009 04/17/2009 04/23/2009 04/23/2009 04/24/2009 04/27/2009 05/13/2009

113 Memorandum in opposition to re 105 MOTION for Leave to File A Motion for Class Certification, 110 Amended MOTION to Amend/Correct 105 MOTION for Leave to File A Motion for Class Certification filed by JAMES H. BILLINGTON. (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 04/10/2009)
114 MEMORANDUM ORDER granting 91 Defendant's Motion for Sanctions; granting 91 Defendant's Motion to Compel. Signed by Magistrate Judge Alan Kay on 4/15/09.(lcak1) (Entered: 04/15/2009)
115 REPLY to opposition to motion re 105 MOTION for Leave to File A Motion for Class Certification, 110 Amended MOTION to Amend/Correct 105 MOTION for Leave to File A Motion for Class Certification filed by CHRISTINE MILLS. (Rose, David) (Entered: 04/17/2009)
116 Unopposed MOTION for Extension of Time to Supplement Responses to Interrogatories by CHRISTINE MILLS (Attachments: # 1 Text of Proposed Order Order)(Rose, David) (Entered: 04/23/2009)
MINUTE ORDER granting 116 Plaintiffs' Unopposed Motion for Extension of Time to Supplement Responses to Interrogatories. Plaintiffs shall have until Monday, May 11, 2009 to supplement their responses to interrogatories Nos. 1−18 and 20−37. Signed by Magistrate Judge Alan Kay on 4/23/09. (lcak1) (Entered: 04/23/2009)
Set/Reset Deadlines : Plaintiffs' supplemental responses to Interrogatories 1−18 and 20−37 due by 5/11/09. (kk) (Entered: 04/24/2009)
117 ORDER granting 105 Plaintiffs' Motion for Leave to File a Motion for Class Certification Out of Time. Signed by Judge Henry H. Kennedy, Jr. on April 27, 2009. (NP) (Entered: 04/27/2009)
118 TRANSCRIPT OF PROCEEDINGS before Judge Henry H. Kennedy of proceedings held on 3−13−09; Page Numbers: 1−17. Court Reporter/Transcriber Annie Shaw, Telephone number 202 354−3242, Court Reporter Email Address : shawreporting@yahoo.com.

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.

07/09/2009 07/10/2009 07/23/2009

Redaction Request due 6/3/2009. Redacted Transcript Deadline set for 6/15/2009. Release of Transcript Restriction set for 8/11/2009.(Shaw, Annie) (Entered: 05/13/2009)
119 MOTION for Extension of Time to Conduct Discovery and File Motion for Class Certification by CHRISTINE MILLS (Attachments: # 1 Text of Proposed Order)(Rose, David) (Entered: 07/09/2009)
MINUTE ORDER granting 119 Motion for Extension of Time to Conduct Discovery and File Motion for Class Certification. The deadline for a motion for class certification and for class−related discovery is August 31, 2009. Signed by Judge Henry H. Kennedy, Jr., on July 10, 2009. (lchhk2.) (Entered: 07/10/2009)
120 MOTION for Sanctions Against Plaintiffs for Disobeying Discovery Order by JAMES H. BILLINGTON (Attachments: # 1 Plaintiffs' Amended Supplemental Responses to Defendant's First Set of Interrogatories, May 11, 2009, # 2 Runako Balondemu − Supplementary Responses, # 3 Clifton Knight − Supplementary Responses, # 4 David Hubbard − Supplementary Responses, # 5 Priscilla Ijeomah−Mills − Supplementary Responses, # 6 Christine Mills − Supplementary Responses, # 7 Charles Mwalimu − Supplementary Responses, # 8 Geraldine Duncan − Supplementary Responses, # 9 Lawrence Perry − Supplementary Responses, # 10 William Rowland − Supplementary

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08/03/2009 08/13/2009 08/13/2009 08/24/2009 08/25/2009 08/25/2009
08/26/2009 08/27/2009 08/28/2009 08/28/2009
09/01/2009
09/02/2009

Responses, # 11 Sharon Taylor − Supplementary Responses, # 12 Text of Proposed Order)(Russell, Beverly) (Entered: 07/23/2009)
121 Memorandum in opposition to re 120 MOTION for Sanctions Against Plaintiffs for Disobeying Discovery Order filed by CHRISTINE MILLS. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Rose, David) (Entered: 08/03/2009)
122 REPLY to opposition to motion re 120 MOTION for Sanctions Against Plaintiffs for Disobeying Discovery Order filed by JAMES H. BILLINGTON. (Russell, Beverly) (Entered: 08/13/2009)
123 NOTICE of Appearance by Earlene White Rosenberg on behalf of all plaintiffs (Rosenberg, Earlene) (Entered: 08/13/2009)
MINUTE ORDER Setting Hearing on MOTION for Sanctions 120 Against Plaintiffs for Disobeying Discovery Order Motion Hearing set for 9/15/2009, at 02:00 PM in Courtroom 7 before Magistrate Judge Alan Kay. Signed by Magistrate Judge Alan Kay on 08/24/2009. (lcak1) (Entered: 08/24/2009)
124 Second MOTION for Extension of Time to Complete Discovery and to File for Class Certification by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN (Rosenberg, Earlene) (Entered: 08/25/2009)
125 NOTICE of PROPOSED ORDER to Accompany Motion to Extend Time to Complete Discovery and File for Class Certification by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN (Rosenberg, Earlene) Modified on 8/26/2009 to correct docket text(tr). (Entered: 08/25/2009)
NOTICE OF CORRECTED DOCKET ENTRY: re 125 Motion to Extend Time to Complete Discovery and File for Class Certification was entered in error and the clerk has made the proper corrections to the docket. Counsel is advised in future filings to use the proper event or contact the Clerk's Office for further assistance. (tr) (Entered: 08/26/2009)
127 Memorandum in opposition to re 124 Second MOTION for Extension of Time to Complete Discovery and to File for Class Certification filed by JAMES H. BILLINGTON. (Attachments: # 1 Exhibit A. Deposition−Related Emails, August 2009, # 2 Exhibit B. Earp Related Documents, # 3 Exhibit C. Rosenberg Ltr., August 14, 2009, # 4 Text of Proposed Order)(Russell, Beverly) (Entered: 08/27/2009)
128 ORDER REFERRING 124 Second Motion for Extension of Time to Complete Discovery and to File for Class Certification to Magistrate Judge Alan Kay. Signed by Judge Henry H. Kennedy, Jr., on August 28, 2009. (lchhk2.) (Entered: 08/28/2009)
129 First MOTION to Compel Discovery by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN (Attachments: # 1 Memorandum in Support, # 2 Exhibit Index, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Text of Proposed Order)(Rosenberg, Earlene) (Entered: 08/28/2009)
130 CASE RE−REFERRED to Magistrate Judge Alan Kay for 124 Second MOTION for Extension of Time to Complete Discovery and to File for Class Certification by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDE MU, GERALDINE DUNCAN. (zkb) (Entered: 09/02/2009)
MINUTE ORDER granting 124 Plaintiffs' Motion to Extend Time for Discovery and to File for Class Certification. The deadline for a motion for class certification and for class−related discovery is September 30, 2009. The parties are advised that no further extensions will be granted unless both parties consent. (Discovery and a Motion for Class Certification due by 9/30/2009.) Signed by Magistrate Judge Alan Kay on

Case: 1:04-cv-2205 As of: 03/12/2017 09:23 PM EDT 25 of 47

09/08/2009 09/08/2009 09/10/2009 09/11/2009 09/14/2009 09/14/2009 09/15/2009
09/15/2009 09/15/2009 09/23/2009
09/23/2009 09/24/2009
09/25/2009

09/02/09. (lcak1) (Entered: 09/02/2009)
MINUTE ORDER granting 85 Motion to Strike (Kennedy, Henry) (Entered: 09/08/2009)
MINUTE ORDER finding as moot 97 Motion for Order (Kennedy, Henry) (Entered: 09/08/2009)
Reset Hearings: Status Conference currently scheduled for 9/18/09 @10:30am is hereby RESCHEDULED for 10/2/2009 @ 10:30 AM before Judge Henry H. Kennedy in courtroom 27A 6th Floor. (tj) (Entered: 09/10/2009)
131 MOTION for Extension of Time to File Opposition to Plaintiffs' Motion to Compel and Memorandum in Support Thereof by JAMES H. BILLINGTON (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 09/11/2009)
MINUTE ORDER granting 131 Defendant's Motion for Extension of Time to File Opposition to Plaintiffs' Motion to Compel. Defendant's Opposition is now due September 15, 2009. Signed by Magistrate Judge Alan Kay on 09/14/09. (lcak1) (Entered: 09/14/2009)
Set/Reset Deadlines : Defendant's Response in Opposition to Plaintiffs' Motion to Compel Discovery 129 due by 9/15/09. (kk) (Entered: 09/14/2009)
MINUTE ORDER deferring ruling on 120 Defendant's Motion for Sanctions. Following hearing on Defendant's Motion for Sanctions, the parties have agreed to meet and confer on Thursday, September 17, 2009, to seek to resolve the dispute over the Plaintiffs' answers to Defendant's interrogatories that Defendant alleges were not answered, were vague, or were otherwise deficient. It is ordered that Plaintiffs shall serve supplemental answers to the disputed interrogatories by close of business Wednesday, September 23, 2009. Signed by Magistrate Judge Alan Kay on 09/15/09. (lcak1) Modified on 9/15/09 (kk). (Entered: 09/15/2009)
Minute Entry for Motion Hearing held before Magistrate Judge Alan Kay on 9/15/09 : Defendant's Motion for Sanctions against Plaintiffs for Disobeying Discovery Order 120 , taken under advisement. Plaintiffs to file any supplemental responses to Defendant's interrogatories by 9/23/09. (Court Reporter : Bowles Reporting Service) (kk) (Entered: 09/15/2009)
132 Memorandum in opposition to re 129 First MOTION to Compel Discovery filed by JAMES H. BILLINGTON. (Attachments: # 1 Affidavit of Belinda Harris, Sept. 14, 2009, # 2 Text of Proposed Order)(Russell, Beverly) (Entered: 09/15/2009)
MINUTE ORDER Setting Telephonic Status Conference for Tuesday, September 29, 2009, at 2:00pm to discuss status of 120 Defendant's Motion for Sanctions and 129 Plaintiffs' Motion to Compel. The parties shall jointly contact chambers at the scheduled time (202−354−3030). (Telephone Conference set for 9/29/2009 02:00 PM before Magistrate Judge Alan Kay.) Signed by Magistrate Judge Alan Kay on 09/23/09. (lcak1) Modified on 9/23/09 (kk). (Entered: 09/23/2009)
Remark: Notice given to parties re: telephonic status conference set for 09/29/09 included the wrong telephone number. The correct telephone number for the parties to jointly contact chambers is: (202) 354−3030. (lcak1) (Entered: 09/23/2009)
133 REPLY to opposition to motion re 131 MOTION for Extension of Time to File Opposition to Plaintiffs' Motion to Compel and Memorandum in Support Thereof Plaintiffs' Reply to Defendant's Opposition to Plaintiffs Motion to Compel (Docket No. 132) filed by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU. (Attachments: # 1 Exhibit List of Exhibits in Support of Reply, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit)(Rosenberg, Earlene) (Entered: 09/24/2009)
134 MOTION for Extension of Time to File a Motion for Class Until 30 days after the Order Resolving their Motion to Compel by CHRISTINE MILLS (Rose, David) (Entered: 09/25/2009)

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09/25/2009 09/29/2009 09/29/2009 09/29/2009 09/29/2009
09/29/2009 09/30/2009 10/20/2009 10/20/2009 10/30/2009
10/30/2009

135 Memorandum in opposition to re 134 MOTION for Extension of Time to File a Motion for Class Until 30 days after the Order Resolving their Motion to Compel filed by JAMES H. BILLINGTON. (Russell, Beverly) (Entered: 09/25/2009)
136 NOTICE of Filing Documents Related to Pending Discovery−Related Motions by JAMES H. BILLINGTON (Attachments: # 1 Mills v. Billington, Civil Action No. 04−2205(HHK/AK)(Transcr. Sept. 17, 2009)(mt. and confer), # 2 Plaintiffs' Second Supplemental Response to Defendant's First Set of Interrogatories Relating to the Second Amended Complaint to Plaintiffs, # 3 Declaration of Counsel for the Plaintiffs)(Russell, Beverly) (Entered: 09/29/2009)
Minute Entry for proceedings held before Magistrate Judge Alan Kay: Telephone Conference held on 9/29/2009. (lcak1) (Entered: 09/29/2009)
MINUTE ORDER setting hearing on 129 Plaintiffs' First MOTION to Compel Discovery for October 20, at 11:00 AM in Courtroom 7 before Magistrate Judge Alan Kay. (Motion Hearing set for 10/20/2009 11:00 AM in Courtroom 7 before Magistrate Judge Alan Kay.) Signed by Magistrate Judge Alan Kay on 09/29/09. (lcak1) (Entered: 09/29/2009)
MINUTE ORDER: The previously scheduled deadline for filing a motion for class certification currently set for September 30, 2009, is hereby vacated. This court will set a new deadline for filing a motion for class certification after this court's ruling on 129 Plaintiffs' First Motion to Compel, which is set for hearing before Magistrate Judge Alan Kay on October 20, 2009, at 11:00 AM. This order does not affect the current discovery deadline of September 30, 2009. Signed by Magistrate Judge Alan Kay on 09/29/09. (lcak1) (Entered: 09/29/2009)
MINUTE ORDER finding as moot 134 Plaintiffs' MOTION for Extension of Time to File a Motion for Class Until 30 days after the Order Resolving their Motion to Compel in light of this Court's 9/29/09 order vacating the current deadline to file a motion for class certification. Signed by Magistrate Judge Alan Kay on 09/29/09. (lcak1) (Entered: 09/29/2009)
Reset Hearings: Status Conference currently scheduled for 10/2/09 @ 10:30am is hereby RESCHEDULED for 1/22/2010 @ 10:00 AM in Courtroom 27A before Judge Henry H. Kennedy. (tj) (Entered: 09/30/2009)
Minute Entry for proceedings held before Magistrate Judge Alan Kay: Motion Hearing held on 10/20/2009 re 129 First MOTION to Compel Discovery filed by LAWRENCE PERRY, CLIFTON KNIGHT, GERALDINE DUNCAN, WILLIAM ROWLAND, RUNAKO BALONDEMU, CHRISTINE MILLS, SHARON TAYLOR, CHARLES MWALIMU, PRISCILLA IJEOMAH, DAVID HUBBARD. (lcak1) (Entered: 10/20/2009)
MINUTE ORDER setting telephonic status conference for Friday, November 13, 2009, at 11:30 AM before Magistrate Judge Alan Kay. The parties shall jointly contact chambers at the scheduled time: (202) 354−3030. (Telephone Conference set for 11/13/2009 11:30 AM before Magistrate Judge Alan Kay.) Signed by Magistrate Judge Alan Kay on 10/20/09. (lcak1) (Entered: 10/20/2009)
137 MOTION for Permanent Injunction to Require the Making and Filing of Reports by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN (Attachments: # 1 Injunction, # 2 Memorandum in Support, # 3 Index of Exhibits, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit)(Rosenberg, Earlene) (Additional attachment(s) added on 11/2/2009: # 14 Text of Proposed Order) (znmw, ). (Entered: 10/30/2009)
138 ENTERED IN ERROR..... MOTION for Permanent Injunction 's Proposed Order accompanying Docket No. 137, Plaintiffs' Motion for an Injunction by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DUNCAN (Rosenberg, Earlene) Modified on 11/2/2009 (znmw, ). (Entered: 10/30/2009)

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11/02/2009 11/03/2009 11/03/2009 11/03/2009 11/04/2009 11/04/2009 11/05/2009 11/12/2009 11/13/2009
11/13/2009
11/13/2009 11/16/2009
11/16/2009 11/17/2009 11/19/2009

NOTICE OF CORRECTED DOCKET ENTRY: Docket Entry 138 MOTION for Permanent Injunction 's Proposed Order accompanying Docket No. 137, Plaintiffs' Motion for an Injunction was entered in error as a separate motion and the proposed order has been added to Docket Entry 137 . (znmw, ) (Entered: 11/02/2009)
MINUTE ORDER. This matter is referred to United States Magistrate Judge John Facciola for the limited purpose of mediating electronic discovery disputes. Signed by Judge Henry H. Kennedy, Jr. on November 3, 2009. (NP) (Entered: 11/03/2009)
Set/Reset Hearings: As confirmed in earlier emails with counsel, a conference to mediate electronic discovery is set for 11/4/2009 10:00 AM in Chambers before Magistrate Judge John M. Facciola. (lcjmf1) (Entered: 11/03/2009)
227 Case Referred to Magistrate Judge John M. Facciola for mediating electronic discovery disputes. (kb) (Entered: 01/25/2012)
Minute Entry for proceedings held before Magistrate Judge John M. Facciola: Conference to mediate electronic discovery held on 11/4/2009. (lcjmf1) (Entered: 11/04/2009)
Set/Reset Hearings: Conference to mediate electronic discovery is set for 11/17/2009 10:00 AM in Chambers before Magistrate Judge John M. Facciola. (lcjmf1) (Entered: 11/04/2009)
139 ORDER re referral to Judge Facciola for settlement of e−discovery issues. Signed by Magistrate Judge John M. Facciola on 11/5/09. (SP, ) (znmw, ). (Entered: 11/05/2009)
140 Unopposed MOTION for Extension of Time to File Opposition to Plaintiffs' Motion for an Injunction Requiring Defendant to Compile and Publish Annual Equal Employment Opportunity Plans and Related Reports by JAMES H. BILLINGTON (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 11/12/2009)
MINUTE ORDER rescheduling telephone status conference set for November 13, 2009, at 11:30 AM. The telephone status conference will now be held on Friday, November 20, 2009, at 11:30 AM before Magistrate Judge Alan Kay. The parties should jointly contact chambers at the scheduled time: (202) 354−3030. (Telephone Conference set for 11/20/2009 11:30 AM before Magistrate Judge Alan Kay.) Signed by Magistrate Judge Alan Kay on 11/13/09. (lcak1) (Entered: 11/13/2009)
MINUTE ORDER scheduling a telephone conference for Monday, November 16, 2009, at 4:30 PM before Magistrate Judge Alan Kay. The parties shall jointly contact chambers at the scheduled time: (202) 354−3030. This order does not affect the telephone status conference set for Friday, November 20. That telephone conference will still go forward unless the parties indicate otherwise during the Monday, November 16 conference call. (Telephone Conference set for 11/16/2009 04:30 PM before Magistrate Judge Alan Kay.) Signed by Magistrate Judge Alan Kay on 11/13/09. (lcak1) (Entered: 11/13/2009)
MINUTE ORDER changing the time of the November 16, 2009, telephone conference from 4:30 to 5:00 PM. (Telephone Conference set for 11/16/2009 05:00 PM before Magistrate Judge Alan Kay.) Signed by Magistrate Judge Alan Kay on 11/13/09. (lcak1) (Entered: 11/13/2009)
MINUTE ORDER granting 140 Defendant's First Motion for an Extension of Time to File His Opposition to Plaintiffs' Motion for an Injunction Requiring Defendant to Compile and Publish Annual Equal Employment Opportunity Plans and Related Reports. Accordingly, defendant's opposition is due on November 17, 2009. Signed by Judge Henry H. Kennedy, Jr. on November 16, 2009. (NP) (Entered: 11/16/2009)
Minute Entry for proceedings held before Magistrate Judge Alan Kay: Telephone Conference held on 11/16/2009. (lcak1) (Entered: 11/16/2009)
141 Memorandum in opposition to re 137 MOTION for Permanent Injunction to Require the Making and Filing of Reports filed by JAMES H. BILLINGTON. (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 11/17/2009)
MINUTE ORDER canceling the telephone status conference set for Friday, November 20, 2009 at 11:30 AM. Signed by Magistrate Judge Alan Kay on 11/19/2009. (lcak1) (Entered: 11/19/2009)

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11/19/2009 11/20/2009 12/01/2009 12/02/2009 12/03/2009 12/03/2009 12/11/2009 12/14/2009 12/15/2009
12/15/2009 12/17/2009 12/18/2009 12/18/2009

142 MOTION Briefing Schedule and Stay of Pending Discovery Issues by JAMES H. BILLINGTON (Attachments: # 1 Text of Proposed Order)(Douds, Julia) (Entered: 11/19/2009)
143 REPLY to opposition to motion re 137 MOTION for Permanent Injunction to Require the Making and Filing of Reports filed by CHRISTINE MILLS. (Attachments: # 1 Injunction Requiring Defendant to Comply With 42 U.S.C. 2000e−16 By Making and Publishing Annual EEO Plans and Reports for Each Fiscal year from 2005−2009 and Each Year After)(Rose, David) (Entered: 11/20/2009)
144 MOTION for Order to Direct the Defendant to Preserve Data and Documents by CHRISTINE MILLS (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Rose, David) (Entered: 12/01/2009)
145 ENTERED IN ERROR.....REPLY to opposition to motion re 142 MOTION Briefing Schedule and Stay of Pending Discovery Issues filed by CHRISTINE MILLS. (Rose, David) Modified on 12/3/2009 (znmw, ). (Entered: 12/02/2009)
NOTICE OF ERROR re 145 Reply to opposition to Motion; emailed to daver@roselawyers.com, cc'd 8 associated attorneys −− The PDF file you docketed contained errors: 1. Incorrect event used, 2. Please refile document, 3. Entered in error; please refile as a Memorandum in Opposition (znmw, ) (Entered: 12/03/2009)
146 Memorandum in opposition to re 142 MOTION Briefing Schedule and Stay of Pending Discovery Issues filed by CHRISTINE MILLS. (Rose, David) (Entered: 12/03/2009)
147 Unopposed MOTION for Extension of Time to File Response/Reply to "Plaintiffs' Memorandum in Opposition to the Motion of the Defendant for a Stay of Discovery Issues, and a Briefing Schedule Granting It Leave to File a Motion to Dismiss" by JAMES H. BILLINGTON (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 12/11/2009)
148 Unopposed MOTION for Extension of Time to File Response/Reply to "Plaintiffs' Motion to Direct the Defendant to Preserve Data and Documents" by JAMES H. BILLINGTON (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 12/14/2009)
MINUTE ORDER granting 148 Defendant's Motion for Extension of Time to File Response/Reply to 144 Motion for Order to Direct the Defendant to Preserve Data and Documents. Defendant's Response is now due on December 18, 2009, and Plaintiffs' Reply, if any, will be due on December 28, 2009 (due to the holiday); Set/Reset Deadlines: Response due by 12/18/2009 Reply due by 12/28/2009. Signed by Magistrate Judge Alan Kay on 12/15/09. (lcak1) (Entered: 12/15/2009)
MINUTE ORDER granting 147 Defendant's Unopposed, First Motion for an Extension of Time to File his Reply in support of Defendant's Motion for a Briefing Schedule and a Stay of Pending Discovery Issues. Accordingly, defendant's reply is due on December 21, 2009. Signed by Judge Henry H. Kennedy, Jr. on December 15, 2009. (NP) (Entered: 12/15/2009)
149 ORDER REFERRING MOTION: 137 Motion by Plaintiffs for an Injunction to Require Defendant to Compile and Publish Annual Equal Employment Opportunity Plans and Related Reports and as Required by Title VII is hereby referred to United States Magistrate Judge Alan Kay for his report and recommendation. Signed by Judge Henry H. Kennedy, Jr. on December 17, 2009. (NP) (Entered: 12/17/2009)
150 Unopposed MOTION for Extension of Time to File Response/Reply to "Plaintiffs' Memorandum in Opposition to the Motion of the Defendant for a Stay of Discovery Issues, and a Briefing Schedule Granting It Leave to File a Motion to Dismiss" by JAMES H. BILLINGTON (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 12/18/2009)
151 Unopposed MOTION for Extension of Time to File Response/Reply to "Plaintiffs' Motion to Direct the Defendant to Preserve Data and Documents" by JAMES H. BILLINGTON (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 12/18/2009)

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12/21/2009
12/21/2009 12/23/2009 12/23/2009 12/28/2009
12/28/2009
01/05/2010 01/08/2010
01/11/2010 01/12/2010 01/14/2010 01/19/2010

MINUTE ORDER granting 150 Defendant's Second Unopposed Motion for Extension of Time to File His Reply to "Plaintiffs' Memorandum in Opposition to the Motion of the Defendant for a Stay of Discovery Issues, and a Briefing Schedule Granting It Leave to File a Motion to Dismiss." Accordingly, defendant's reply is due on December 23, 2009. Signed by Judge Henry H. Kennedy, Jr. on December 21, 2009. (NP) (Entered: 12/21/2009)
MINUTE ORDER granting 151 Defendant's Unopposed Second Motion for an Extension of Time to File Response to "Plaintiffs' Motion to Direct the Defendant to Preserve Data and Documents." Accordingly, defendant's response is due December 23, 2009. Signed by Judge Henry H. Kennedy, Jr. on December 21, 2009. (NP) (Entered: 12/21/2009)
152 Memorandum in opposition to re 144 MOTION for Order to Direct the Defendant to Preserve Data and Documents filed by JAMES H. BILLINGTON. (Attachments: # 1 Exhibit E−Mail from Julia Douds to David Rose, November 25, 2009, # 2 Text of Proposed Order)(Russell, Beverly) (Entered: 12/23/2009)
153 REPLY to opposition to motion re 142 MOTION Briefing Schedule and Stay of Pending Discovery Issues filed by JAMES H. BILLINGTON. (Russell, Beverly) (Entered: 12/23/2009)
MINUTE ORDER scheduling hearing on 137 Motion by Plaintiffs for an Injunction to Require Defendant to Compile and Publish Annual Equal Employment Opportunity Plans and Related Reports for January 18, 2010, at 10:30 AM in Courtroom 7. (Motion Hearing set for 1/18/2010 10:30 AM in Courtroom 7 before Magistrate Judge Alan Kay.) Signed by Magistrate Judge Alan Kay on 12/28/09. (lcak1) (Entered: 12/28/2009)
MINUTE ORDER rescheduling hearing on 137 Motion by Plaintiffs for an Injunction to Require Defendant to Compile and Publish Annual Equal Employment Opportunity Plans and Related Reports. Because of the Martin Luther King Jr. holiday, the hearing is now scheduled for January 20, 2010, at 10:30 AM in Courtroom 7. (Motion Hearing set for 1/20/2010 10:30 AM in Courtroom 7 before Magistrate Judge Alan Kay.) Signed by Magistrate Judge Alan Kay on 12/28/09. (lcak1) (Entered: 12/28/2009)
154 ORDER denying without prejudice 144 Plaintiffs' Motion to Direct the Defendant to Preserve Data and Documents. Signed by Magistrate Judge Alan Kay on 01/05/2010.(lcak1) (Entered: 01/05/2010)
MINUTE ORDER: Defendant is hereby ordered to provide supplemental briefing on the issue of standing on 137 Plaintiffs' Motion for an Injunction to Require Defendant to Compile and Publish Annual Equal Employment Opportunity Plans and Related Reports. The supplemental brief shall be filed by close of business on Thursday, January 14, 2010. Plaintiffs' Reply, if any, shall be filed by close of business on Tuesday, January 19, 2010. The hearing set for January 20, 2010, at 10:30 AM will go forward as scheduled. Signed by Magistrate Judge Alan Kay on 01/08/2010. (lcak1) (Entered: 01/08/2010)
Set/Reset Deadlines : Defendant to file a Supplemental Brief on the issue of standing on Plaintiffs' Motion for an Injunction to require Defendant to compile and publish annual Equal Employment Opportunity plans and related reports 137 ; Plaintiffs' Reply to Defendant's Supplemental Brief due by 1/19/10.(kk) (Entered: 01/11/2010)
NOTICE of Hearing on 142 motion for briefing schedule and stay of pending discovery issues by JAMES H. BILLINGTON. Oral argument is set for 2/19/2010 @ 2:30 PM in Courtroom 27A before Judge Henry H. Kennedy. *Note: Parties will be allowed 10 minutes per side for oral argument* (tj) (Entered: 01/12/2010)
155 RESPONSE TO ORDER OF THE COURT re Order,, Defendant's Supplemental Brief as to Plaintiff's Lack of Standing to Seek Injunctive Relief to Compel Defendant to Produce Equal Employment Opportunity and Related Reports filed by JAMES H. BILLINGTON. (Russell, Beverly) (Entered: 01/14/2010)
156 SUPPLEMENTAL MEMORANDUM to re 155 Response to Order of the Court, on Standing filed by CHRISTINE MILLS. (Rose, David) (Entered: 01/19/2010)

Case: 1:04-cv-2205 As of: 03/12/2017 09:23 PM EDT 30 of 47

01/19/2010 01/20/2010 01/20/2010
01/20/2010 01/22/2010 01/27/2010 01/29/2010
02/01/2010 02/01/2010
02/03/2010

157 STATUS REPORT Discovery and Request for Ruling by CHRISTINE MILLS. (Rose, David) (Entered: 01/19/2010)
NOTICE: Status conference currently scheduled for 1/22/2010 @ 10:00am before Judge Henry H. Kennedy, Jr. is hereby CANCELED. A motion hearing remains scheduled for 2/19/2010 @ 2:30pm. (tj ) (Entered: 01/20/2010)
MINUTE ORDER: Defendant shall file an opposition to 157 Plaintiffs Discovery Status Report and Request for Ruling no later than close of business Wednesday, January 27, 2010. Defendant shall address reasons why not to grant this request for ruling other than the fact that a motion to stay discovery is pending before Judge Henry H. Kennedy. Plaintiffs' reply, if any, shall be filed by close of business Monday, February 1, 2010. Signed by Magistrate Judge Alan Kay on 01/20/2010. (lcak1) (Entered: 01/20/2010)
Minute Entry for Motion Hearing held before Magistrate Judge Alan Kay on 1/20/10 : Plaintiffs' Motion for an Injunction to Require Defendant to Compile and Publish Annual EEO Plans and Related Reports 137 , heard, argued and taken under advisement. (Court Reporter : Bowles Reporting Service) (kk) (Entered: 01/20/2010)
Set/Reset Deadlines : Defendant's Opposition to Plaintiffs' Discovery Status Report and Request for Ruling 157 due by 1/27/10; Plaintiffs' Reply, if any, in support of their Request for Ruling 157 due by 2/1/10. (kk) (Entered: 01/22/2010)
158 RESPONSE TO ORDER OF THE COURT re Order, on Plaintiffs' Status Report and Request for Ruling filed by JAMES H. BILLINGTON. (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 01/27/2010)
159 CASE REFERRED to Magistrate Judge Alan Kay for 137 MOTION for Permanent Injunction to Require the Making and Filing of Reports by PRISCILLA IJEOMAH, LAWRENCE PERRY, WILLIAM ROWLAND, DAVID HUBBARD, CLIFTON KNIGHT, SHARON TAYLOR, CHARLES MWALIMU, CHRISTINE MILLS, RUNAKO BALONDEMU, GERALDINE DU NCAN. (kb) (Entered: 01/29/2010)
160 STATUS REPORT Reply and Request for Ruling by CHRISTINE MILLS. (Rose, David) (Entered: 02/01/2010)
MINUTE ORDER denying as moot 157 Plaintiffs' Request for Ruling. The 02/01/2010 status report filed by Plaintiffs indicates that the parties have worked out an agreement on the request. The parties shall submit a status report in 30 days updating the court on Plaintiffs' pending 129 Motion to Compel Discovery. Signed by Magistrate Judge Alan Kay on 02/01/2010. (lcak1) (Entered: 02/01/2010)
161 TRANSCRIPT OF PROCEEDINGS before Magistrate Judge Alan Kay held on 1/20/2010; Page Numbers: 1−50. Court Reporter/Transcriber Bowles Reporting Service, Telephone number (860) 464−1083,

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.

02/17/2010

Redaction Request due 2/24/2010. Redacted Transcript Deadline set for 3/8/2010. Release of Transcript Restriction set for 5/4/2010.(znmw, ) (Entered: 02/03/2010)
162 REPORT AND RECOMMENDATION re 137 MOTION for Permanent Injunction to Require the Making and Filing of Reports filed by LAWRENCE PERRY, CLIFTON KNIGHT, GERALDINE DUNCAN, WILLIAM ROWLAND, RUNAKO BALONDEMU, CHRISTINE MILLS, SHARON TAYLOR, CHARLES MWALIMU, PRISCILLA IJEOMAH, DAVID HUBBARD. Signed by Magistrate Judge Alan Kay on 02/17/2010. (lcak1) (Entered: 02/17/2010)

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02/19/2010 02/19/2010
02/19/2010 02/26/2010 02/26/2010 02/26/2010 03/03/2010 03/16/2010 03/16/2010 03/16/2010 03/23/2010 03/24/2010 03/24/2010

Minute Entry for proceedings held before Judge Henry H. Kennedy: Motion Hearing held on 2/19/2010 re 142 MOTION Briefing Schedule and Stay of Pending Discovery Issues filed by JAMES H. BILLINGTON. Oral argument held, and the defendant's motion is DENIED for reasons stated on the record. (Court Reporter Annie Shaw.) (tj) (Entered: 02/19/2010)
MINUTE ORDER: In light of Judge Kennedy's oral ruling denying Defendant's motion to stay pending discovery disputes, the parties are directed to file a Status Report by February 26, 2010, updating the Court on what discovery disputes remain pending. It is the undersigned's understanding that the parties have met and conferred several times since the filing of the pending discovery motions and that some of the issues may have been resolved, thus narrowing the scope of the discovery disputes currently pending. Accordingly, Defendant shall submit a status report on which disputes remain pending from its 120 Motion for Sanctions Against Plaintiffs for Disobeying Discovery Disputes filed on July 23, 2009. Plaintiffs shall submit a status report on which disputes remain pending from its 129 Motion to Compel Discovery filed August 28, 2009. Status Reports due by 2/26/2010. Signed by Magistrate Judge Alan Kay on 02/19/2010. (lcak1) (Entered: 02/19/2010)
163 ORDER denying 142 Defendant's Motion for a Briefing Schedule and a Stay of Pending Discovery Issues. Signed by Judge Henry H. Kennedy, Jr. on February 19, 2010. (NP) (Entered: 02/19/2010)
164 STATUS REPORT by JAMES H. BILLINGTON. (Attachments: # 1 Exhibit Transcript of September 17, 2009 Meet and Confer Session, # 2 Exhibit Declaration of Counsel for the Plaintiffs)(Russell, Beverly) (Entered: 02/26/2010)
165 ERRATA re 164 to Status Report by JAMES H. BILLINGTON. (Russell, Beverly) Modified to add link on 3/1/2010 (znmw, ). (Entered: 02/26/2010)
166 STATUS REPORT submitted by Plaintiffs on Feb. 26, 2010 by RUNAKO BALONDEMU, GERALDINE DUNCAN, DAVID HUBBARD, PRISCILLA IJEOMAH, CLIFTON KNIGHT, CHRISTINE MILLS, CHARLES MWALIMU, LAWRENCE PERRY, WILLIAM ROWLAND, SHARON TAYLOR. (Attachments: # 1 Exhibit Correspondence)(Rosenberg, Earlene) (Entered: 02/26/2010)
167 OBJECTION to 162 Report and Recommendations of February 17, 2010 filed by RUNAKO BALONDEMU, GERALDINE DUNCAN, DAVID HUBBARD, PRISCILLA IJEOMAH, CLIFTON KNIGHT, CHRISTINE MILLS, CHARLES MWALIMU, LAWRENCE PERRY, WILLIAM ROWLAND, SHARON TAYLOR. (Rosenberg, Earlene) (Entered: 03/03/2010)
168 Unopposed MOTION for Extension of Time to File Opposition or Other Response to Plaintiffs' Objection to Magistrate Judge Alan Kay's Report and Recommendation by JAMES H. BILLINGTON (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 03/16/2010)
MINUTE ORDER setting Telephone Status Conference on pending discovery motions for March 24, 2010, at 3:00 PM before Magistrate Judge Alan Kay. The parties are directed to jointly contact chambers at the scheduled time: (202) 354−3030. Signed by Magistrate Judge Alan Kay on 03/16/2010. (lcak1) (Entered: 03/16/2010)
MINUTE ORDER granting 168 Defendant's Motion for an Extension of Time to File His Opposition or Other Response to Plaintiffs' Objection to Magistrate Judge Alan Kay's Report and Recommendation. Accordingly, defendant's response is due on March 25, 2010; plaintiffs' reply is due on April 9, 2010. Signed by Judge Henry H. Kennedy, Jr. on March 16, 2010. (NP) (Entered: 03/16/2010)
169 Unopposed MOTION for Extension of Time to File Opposition or Other Response to Plaintiffs' Objection to Magistrate Judge Kay's Report and Recommendation by JAMES H. BILLINGTON (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 03/23/2010)
Minute Entry for proceedings held before Magistrate Judge Alan Kay: Telephone Conference held on 3/24/2010. (lcak1) (Entered: 03/24/2010)
MINUTE ORDER setting Telephone Status Conference to follow up on pending discovery disputes for April 14, 2010, at 3:00 PM before Magistrate Judge Alan Kay.

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03/25/2010 03/31/2010 03/31/2010 04/02/2010 04/09/2010 04/09/2010
04/13/2010 04/14/2010 04/16/2010 04/16/2010
04/16/2010 04/19/2010 04/20/2010

The parties are directed to jointly contact chambers at the scheduled time: (202) 354−3030. Signed by Magistrate Judge Alan Kay on 03/24/2010. (lcak1) (Entered: 03/24/2010)
MINUTE ORDER granting 169 Defendant's Second, Unopposed Motion for an Extension of Time to File His Opposition or Other Response to Plaintiffs' Objection to Magistrate Judge Alan Kay's Report and Recommendation. Accordingly, defendant's response is due on April 2, 2010; plaintiffs' reply is due on April 16, 2010. Signed by Judge Henry H. Kennedy, Jr. on March 25, 2010. (NP) (Entered: 03/25/2010)
Motion terminated: 104 Plaintiff's Motion for Class Certification is terminated per 112 the Court's Order docketed on April 8, 2009. Signed by Judge Henry H. Kennedy, Jr. on March 31, 2010. (NP) (Entered: 03/31/2010)
Motion terminated: 110 Plaintiffs' Motion to Amend Motion for Leave to File a Motion for Class Certification is terminated per 117 the Court's Order docketed on April 27, 2009. Signed by Judge Henry H. Kennedy, Jr. on March 31, 2010. (NP) (Entered: 03/31/2010)
170 RESPONSE re 167 to Plaintiffs' Objections to the Report and Recommendation of February 17, 2010, on Plaintiffs' Motion for Injunction Pursuant to 42 U.S.C. § 2000e−16 filed by JAMES H. BILLINGTON. (Russell, Beverly) Modified to add link on 4/5/2010 (znmw, ). (Entered: 04/02/2010)
171 Unopposed MOTION for Leave to File Excess Pages as Relates to Defendant's Motion to Dismiss, or Alternatively, for Summary Judgment by JAMES H. BILLINGTON (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 04/09/2010)
172 MOTION to Dismiss , or Alternatively, MOTION for Summary Judgment by JAMES H. BILLINGTON (Attachments: # 1 Exhibit 1. LCR 2010−3.1, Library of Congress Regulations Re Processing Discrimination Complaints and Charges, # 2 Exhibit 2. LCR 2010−3.2, Library of Congress Regulations Re Processing Class Complaints Alleging Discrimination, # 3 Exhibit 3. Cook v. Billington Complaint, # 4 Exhibit 4. Cook v. Billington Settlement Agreement, # 5 Exhibit 5. Cook Claimant Disbursements, # 6 Statement of Facts, # 7 Text of Proposed Order)(Russell, Beverly) (Entered: 04/09/2010)
MINUTE ORDER granting 171 Defendant's Consent Motion for Leave to File a Memorandum Exceeding the Court's Presumptive Page Limitation. Signed by Judge Henry H. Kennedy, Jr. on April 13, 2010. (NP) (Entered: 04/13/2010)
Minute Entry for proceedings held before Magistrate Judge Alan Kay: Telephone Conference held on 4/14/2010. (lcak1) (Entered: 04/19/2010)
173 NOTICE of Appearance by Yuval Rubinstein on behalf of RUNAKO BALONDEMU, GERALDINE DUNCAN, DAVID HUBBARD, PRISCILLA IJEOMAH, CLIFTON KNIGHT, CHRISTINE MILLS, CHARLES MWALIMU, LAWRENCE PERRY, WILLIAM ROWLAND, SHARON TAYLOR (Rubinstein, Yuval) (Entered: 04/16/2010)
174 Unopposed MOTION for Extension of Time to File Response/Reply as to 172 MOTION to Dismiss , or Alternatively MOTION for Summary Judgment to May 3, 2010 by RUNAKO BALONDEMU, GERALDINE DUNCAN, DAVID HUBBARD, PRISCILLA IJEOMAH, CLIFTON KNIGHT, CHRISTINE MILLS, CHARLES MWALIMU, LAWRENCE PERRY, WILLIAM ROWLAND, SHARON TAYLOR (Attachments: # 1 Text of Proposed Order)(Rose, David) (Entered: 04/16/2010)
175 MOTION for Protective Order by JAMES H. BILLINGTON (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 04/16/2010)
MINUTE ORDER granting 174 Plaintiffs' Unopposed Motion For Extension of Time to May 3, 2010, to File Opposition to Defendant's Motion to Dismiss. Accordingly, plaintiff's opposition is due on May 3, 2010. Signed by Judge Henry H. Kennedy, Jr. on April 19, 2010. (NP) (Entered: 04/19/2010)
MINUTE ORDER scheduling Telephone Conference for 4/22/2010 02:30 PM to discuss the 175 Motion for Protective Order. The parties are directed to jointly contact chambers at the appointed time: (202) 354−3030. Signed by Magistrate Judge Alan

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04/22/2010 04/22/2010 04/30/2010 04/30/2010 04/30/2010 05/03/2010 05/03/2010
05/04/2010
05/06/2010 05/07/2010

Kay on 04/20/2010. (lcak1) (Entered: 04/20/2010)
Minute Entry for proceedings held before Magistrate Judge Alan Kay: Telephone Conference held on 4/22/2010. (lcak1) (Entered: 04/22/2010)
MINUTE ORDER setting Telephone Conference for 4/30/2010 02:30 PM before Magistrate Judge Alan Kay. The parties are directed to jointly contact chambers at the appointed time: (202) 354−3030. Signed by Magistrate Judge Alan Kay on 04/22/2010. (lcak1) (Entered: 04/22/2010)
Minute Entry for proceedings held before Magistrate Judge Alan Kay: Telephone Conference held on 4/30/2010. (lcak1) (Entered: 04/30/2010)
MINUTE ORDER: Per today's telephone status conference, Plaintiffs are ordered to submit a supplemental brief succinctly setting forth information regarding their request for applicant flow data. This supplemental brief shall be submitted to the Court no later than Friday, May 7, 2010. Defendant's response, if any, will be due no later than one week after Plaintiffs submit their supplemental brief. Signed by Magistrate Judge Alan Kay on 04/30/2010 (lcak1) (Entered: 04/30/2010)
176 Memorandum in opposition to re 175 MOTION for Protective Order filed by RUNAKO BALONDEMU, GERALDINE DUNCAN, DAVID HUBBARD, PRISCILLA IJEOMAH, CLIFTON KNIGHT, CHRISTINE MILLS, CHARLES MWALIMU, LAWRENCE PERRY, WILLIAM ROWLAND, SHARON TAYLOR. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Inland American v. Robert L. Lauth et al.)(Rubinstein, Yuval) (Entered: 04/30/2010)
Set/Reset Deadlines : Plaintiffs' Supplemental Brief setting forth information regarding their request for applicant flow data due by 5/7/10. (kk) (Entered: 05/03/2010)
177 Memorandum in opposition to re 172 MOTION to Dismiss , or Alternatively MOTION for Summary Judgment filed by RUNAKO BALONDEMU, GERALDINE DUNCAN, DAVID HUBBARD, PRISCILLA IJEOMAH, CLIFTON KNIGHT, CHRISTINE MILLS, CHARLES MWALIMU, LAWRENCE PERRY, WILLIAM ROWLAND, SHARON TAYLOR. (Attachments: # 1 Text of Proposed Order, # 2 Statement of Facts, # 3 Declaration Rule 56(f) Declaration, # 4 Exhibit List, # 5 Exhibit 1 − September 15, 2003 Letter, # 6 Exhibit 2 − March 1, 2004 Memorandum, # 7 Exhibit 3 − Declaration of Christine Mills, # 8 Exhibit 4 − Declaration of Priscilla Ijeomah−Mills, # 9 Exhibit 5 − Declaration of Clifton Knight, # 10 Exhibit 6 − Declaration of David Hubbard, # 11 Exhibit 7 − Declaration of Charles Mwalimu, # 12 Exhibit 8 − Declaration of Lawrence Perry, # 13 Exhibit 9 − Declaration of Runako Balondemu, # 14 Exhibit 10 − Declaration of William Rowland, # 15 Exhibit 11 − Declaration of Geraldine Duncan, # 16 Exhibit 12 − Declaration of Sharon Taylor, # 17 Exhibit 13 − Second Declaration of Lance W. Seberhagen)(Rubinstein, Yuval) (Entered: 05/03/2010)
178 ERRATA Sheet For Plaintiffs' Memorandum of Points and Authorities in Opposition to Defendant's Motion to Dismiss, or Alternatively, For Summary Judgment by RUNAKO BALONDEMU, GERALDINE DUNCAN, DAVID HUBBARD, PRISCILLA IJEOMAH, CLIFTON KNIGHT, CHRISTINE MILLS, CHARLES MWALIMU, LAWRENCE PERRY, WILLIAM ROWLAND, SHARON TAYLOR 177 Memorandum in Opposition,,,, filed by LAWRENCE PERRY, CLIFTON KNIGHT, GERALDINE DUNCAN, WILLIAM ROWLAND, RUNAKO BALONDEMU, CHRISTINE MILLS, SHARON TAYLOR, CHARLES MWALIMU, PRISCILLA IJEOMAH, DAVID HUBBARD. (Rubinstein, Yuval) (Entered: 05/04/2010)
179 NOTICE of Corrected Exhibit by RUNAKO BALONDEMU re 177 Memorandum in Opposition,,,, (Attachments: # 1 Exhibit 9 − Declaration of Runako Balondemu)(Rubinstein, Yuval) (Entered: 05/06/2010)
180 SUPPLEMENTAL MEMORANDUM to Regarding Plaintiffs' Requests For Applicant Flow Data filed by RUNAKO BALONDEMU, GERALDINE DUNCAN, DAVID HUBBARD, PRISCILLA IJEOMAH, CLIFTON KNIGHT, CHRISTINE MILLS, CHARLES MWALIMU, LAWRENCE PERRY, WILLIAM ROWLAND, SHARON TAYLOR. (Attachments: # 1 Exhibit List, # 2 Exhibit 1 − AVUE Applicant Flow Data, # 3 Exhibit 2 − Excel Sheet of Hires, # 4 Exhibit 3 − Defendant's Responses to

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05/07/2010 05/10/2010 05/10/2010 05/11/2010 05/12/2010 05/12/2010 05/13/2010 05/14/2010 05/14/2010 05/14/2010
05/14/2010 05/14/2010 05/20/2010

Plaintiffs' Document Requests, # 5 Exhibit 4 − Defendant's Responses to Plaintiffs' Interrogatories, # 6 Exhibit 5 − Defendant's Supplemental Response to Plaintiffs' Interrogatories)(Rubinstein, Yuval) (Entered: 05/07/2010)
181 Unopposed MOTION for Extension of Time to File Response/Reply to Plaintiffs' Opposition to Defendant's Motion for a Protective Order by JAMES H. BILLINGTON (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 05/07/2010)
MINUTE ORDER granting 181 Motion for Extension of Time to File Response/Reply to Plaintiffs' Opposition to Defendant's Motion for a Protective Order Defendant's Reply is due by 5/12/2010. Signed by Magistrate Judge Alan Kay on 05/10/2010. (lcak1) (Entered: 05/10/2010)
182 Unopposed MOTION for Extension of Time to File Response/Reply to Plaintiffs' Opposition to Defendant's Motion to Dismiss, or Alternatively, for Summary Judgment by JAMES H. BILLINGTON (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 05/10/2010)
MINUTE ORDER granting 182 Defendant's Unopposed Motion for an Extension of Time to File his Reply in support of his Motion to Dismiss, or Alternatively, for Summary Judgment. Accordingly, defendant's reply is due on May 21, 2010. Signed by Judge Henry H. Kennedy, Jr. on May 11, 2010. (NP) (Entered: 05/11/2010)
183 Unopposed MOTION for Extension of Time to File Response/Reply to Plaintiffs' Opposition to Defendant's Motion for a Protective Order and Memorandum in Support Thereof by JAMES H. BILLINGTON (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 05/12/2010)
MINUTE ORDER granting 183 Motion for Extension of Time to File Response/Reply to Plaintiffs' Opposition to Defendant's Motion for a Protective Order and Memorandum in Support Thereof. Reply due by 5/14/2010. Signed by Magistrate Judge Alan Kay on 05/12/2010. (lcak1) (Entered: 05/12/2010)
184 REPLY to opposition to motion re 175 MOTION for Protective Order filed by JAMES H. BILLINGTON. (Attachments: # 1 Exhibit E−Mails)(Russell, Beverly) (Entered: 05/13/2010)
185 MOTION for Extension of Time to File Response/Reply to Plaintiffs' Supplemental Memorandum Regarding Applicant Flow Data by JAMES H. BILLINGTON (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 05/14/2010)
MINUTE ORDER granting 185 Motion for Extension of Time to File Response/Reply to Plaintiffs Supplemental Memorandum Regarding Applicant FlowData. Defendant's Response is now due 5/20/2010. No further extensions will be granted. Signed by Magistrate Judge Alan Kay on 05/14/2010. (lcak1) (Entered: 05/14/2010)
186 MOTION for Leave to File Sur−Reply in Opposition to Defendant's Motion For a Protective Order by RUNAKO BALONDEMU, GERALDINE DUNCAN, DAVID HUBBARD, PRISCILLA IJEOMAH, CLIFTON KNIGHT, CHRISTINE MILLS, CHARLES MWALIMU, LAWRENCE PERRY, WILLIAM ROWLAND, SHARON TAYLOR (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A − Sur−reply)(Rubinstein, Yuval) (Entered: 05/14/2010)
MINUTE ORDER granting 186 Motion for Leave to File Sur−Reply in Opposition to Defendant's Motion For a Protective Order. No further pleadings will be accepted with respect to this Motion. Plaintiffs are ordered to file the Sur−Reply by COB today. Signed by Magistrate Judge Alan Kay on 05/14/2010. (lcak1) (Entered: 05/14/2010)
187 SURREPLY to re 175 MOTION for Protective Order filed by RUNAKO BALONDEMU, GERALDINE DUNCAN, DAVID HUBBARD, PRISCILLA IJEOMAH, CLIFTON KNIGHT, CHRISTINE MILLS, CHARLES MWALIMU, LAWRENCE PERRY, WILLIAM ROWLAND, SHARON TAYLOR. (Rubinstein, Yuval) (Entered: 05/14/2010)
188 RESPONSE re 180 to Plaintiffs' Supplemental Memorandum Regarding Applicant Flow Data filed by JAMES H. BILLINGTON. (Russell, Beverly) Modified to add link on 5/21/2010 (znmw, ). (Entered: 05/20/2010)

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05/21/2010 05/24/2010 05/26/2010 05/26/2010 05/26/2010 05/26/2010 05/27/2010 05/28/2010 05/28/2010 05/28/2010 06/04/2010 06/08/2010
06/09/2010

189 Second MOTION for Extension of Time to File Response/Reply to Plaintiffs' Opposition to Defendant's Motion to Dismiss, or Alternatively, for Summary Judgment by JAMES H. BILLINGTON (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 05/21/2010)
MINUTE ORDER granting 189 Defendant's Second Motion for an Extension of Time to File His Reply to Plaintiffs' Opposition to Defendant's Motion to Dismiss, or Alternatively, for Summary Judgment. Accordingly, defendant's reply is due on May 26, 2010. Signed by Judge Henry H. Kennedy, Jr. on May 24, 2010. (NP) (Entered: 05/24/2010)
190 REPLY to opposition to motion re 172 MOTION to Dismiss , or Alternatively MOTION for Summary Judgment filed by JAMES H. BILLINGTON. (Attachments: # 1 Defendant's Response to Plaintiffs' Responses to Defendant's Statement of Material Facts Not in Genuine Dispute)(Russell, Beverly) (Entered: 05/26/2010)
191 MOTION for Leave to File a Supplemental Memorandum in Support of Defendant's Motion for Sanctions Against Plaintiffs for Disobeying Discovery Order (R. 120) by JAMES H. BILLINGTON (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 05/26/2010)
192 MOTION to Strike Plaintiffs' Declarations Filed in Support of Their Opposition Memorandum and Defendant's Supplemental Memorandum in Support of HIs Motion for Sanctions (R. 120) by JAMES H. BILLINGTON (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 05/26/2010)
193 SUPPLEMENTAL MEMORANDUM to re 120 MOTION for Sanctions Against Plaintiffs for Disobeying Discovery Order filed by JAMES H. BILLINGTON. (See Docket Entry 192 to view document). (znmw, ) (Entered: 05/27/2010)
194 NOTICE OF SUPPLEMENTAL AUTHORITY by RUNAKO BALONDEMU, GERALDINE DUNCAN, PRISCILLA IJEOMAH, CLIFTON KNIGHT, CHRISTINE MILLS, CHARLES MWALIMU, LAWRENCE PERRY, WILLIAM ROWLAND, SHARON TAYLOR (Attachments: # 1 Exhibit 1 − Ponce v. Billington Order)(Rubinstein, Yuval) (Entered: 05/27/2010)
195 MOTION for Leave to File an Amended Answer and Memorandum in Support Thereof by JAMES H. BILLINGTON (Attachments: # 1 Amended Answer, # 2 Text of Proposed Order)(Russell, Beverly) (Entered: 05/28/2010)
196 MEMORANDUM ORDER granting in part and denying in part 129 Plaintiff's First Motion to Compel. Signed by Magistrate Judge Alan Kay on 05/28/2010. (lcak1) (Entered: 05/28/2010)
MINUTE ORDER: The undersigned will refrain from ruling on 120 Defendant's Motion for Sanctions Against Plaintiffs for Disobeying Discovery Order. The Motion's requested relief to strike Plaintiffs class allegations set forth in their Second Amended Complaint is dispositive in nature and thus falls under the authority of the trial court. Signed by Magistrate Judge Alan Kay on 05/28/2010.(lcak1) (Entered: 05/28/2010)
197 RESPONSE re 194 to Plaintiffs' Notice of Recent Authority filed by JAMES H. BILLINGTON. (Attachments: # 1 Exhibit Merit Selection Plan)(Douds, Julia) Modified to add link on 6/7/2010 (znmw, ). (Entered: 06/04/2010)
198 Memorandum in opposition to re 192 MOTION to Strike Plaintiffs' Declarations Filed in Support of Their Opposition Memorandum and Defendant's Supplemental Memorandum in Support of HIs Motion for Sanctions (R. 120) MOTION to Strike Plaintiffs' Declarations Filed in Support of Their Opposition Memorandum and Defendant's Supplemental Memorandum in Support of HIs Motion for Sanctions (R. 120) filed by RUNAKO BALONDEMU, GERALDINE DUNCAN, DAVID HUBBARD, PRISCILLA IJEOMAH, CLIFTON KNIGHT, CHRISTINE MILLS, CHARLES MWALIMU, LAWRENCE PERRY, WILLIAM ROWLAND, SHARON TAYLOR. (Attachments: # 1 Text of Proposed Order)(Rubinstein, Yuval) (Entered: 06/08/2010)
MINUTE ORDER finding as moot 175 Defendant's Motion for Protective Order. In light of this Court's Memorandum Order 196 dated 5/28/10, the issues raised in this motion are moot. Signed by Magistrate Judge Alan Kay on 06/09/2010. (lcak1)

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06/11/2010 06/11/2010 06/11/2010
06/14/2010
06/14/2010
06/17/2010 06/17/2010
06/17/2010 06/21/2010
06/21/2010 06/22/2010 06/23/2010

(Entered: 06/09/2010)
199 MOTION for Clarification and Memorandum in Support Thereof by JAMES H. BILLINGTON (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 06/11/2010)
200 Unopposed MOTION for Extension of Time to Comply with the Court's May 28, 2010 Memorandum Order on Plaintiffs' Motion to Compel by JAMES H. BILLINGTON (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 06/11/2010)
201 Memorandum in opposition to re 195 MOTION for Leave to File an Amended Answer and Memorandum in Support Thereof filed by RUNAKO BALONDEMU, GERALDINE DUNCAN, DAVID HUBBARD, PRISCILLA IJEOMAH, CLIFTON KNIGHT, CHRISTINE MILLS, CHARLES MWALIMU, LAWRENCE PERRY, WILLIAM ROWLAND, SHARON TAYLOR. (Attachments: # 1 Text of Proposed Order)(Rubinstein, Yuval) (Entered: 06/11/2010)
MINUTE ORDER granting 199 Motion for Clarification. To the extent that Defendant has produced the information requested in Plaintiffs' Document Request No. 1(b)−(d) in Excel format, which includes for each person Defendant has employed in a full time, permanent position since January 1, 1999, the data regarding "(b) position or job title at hire; (c) date of hire; and (d) pay or pay level at hire" this Court finds that Defendant has fully responded to that document request. Due to the complicated nature of the briefing on the 126 Motion to Compel, the undersigned was not aware that Defendant had reproduced that data in Excel format. No further data needs to be produced as to Document Request No. 1(b)−(d). Signed by Magistrate Judge Alan Kay on 06/14/2010. (lcak1) (Entered: 06/14/2010)
MINUTE ORDER granting 200 Defendant's Unopposed Motion for Extension of Time to Comply with the Court's May 28, 2010, Memorandum Order on Plaintiffs' Motion to Compel. It is ORDERED that the date by which Defendant must comply with the Courts May 28,2010, Memorandum Order on Plaintiffs Motion to Compel is extended to June 28, 2010. Signed by Magistrate Judge Alan Kay on 06/14/2010. (lcak1) (Entered: 06/14/2010)
Set/Reset Deadlines : Defendant to comply with the Court's 5/28/10 Memorandum Order by 6/28/10. (kk) (Entered: 06/17/2010)
202 Unopposed MOTION for Extension of Time to File Response/Reply to Plaintiffs' Opposition to Defendant's Motion to Strike Plaintiffs' Declarations in Support of Plaintiffs' Opposition Memorandum (R. 177) and Defendant's Supplemental Memorandum in Support of His Motion for Sanctions (R. 120) by JAMES H. BILLINGTON (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 06/17/2010)
203 Unopposed MOTION for Extension of Time to File Response/Reply to Plaintiffs' Opposition to Defendant's Motion for Leave to File an Amended Answer by JAMES H. BILLINGTON (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 06/17/2010)
MINUTE ORDER granting 202 Defendant's Unopposed Motion for an Extension of Time to File His Reply to Plaintiffs' Opposition To Defendant's Motion to Strike Plaintiffs' Declarations Filed in Support of Plaintiffs' Opposition Memorandum (R. 177) and Defendant's Supplemental Memorandum in Support of His Motion for Sanctions (R. 120). Accordingly, defendant's reply is due on June 23, 2010. Signed by Judge Henry H. Kennedy, Jr. on June 21, 2010. (NP) (Entered: 06/21/2010)
MINUTE ORDER granting 203 Defendant's Unopposed Motion for an Extension of Time to File His Reply to Plaintiffs' Opposition to Defendants Motion for Leave to File an Amended Answer. Accordingly, defendant's reply is due on June 23, 2010. Signed by Judge Henry H. Kennedy, Jr. on June 21, 2010. (NP) (Entered: 06/21/2010)
204 REPLY to opposition to motion re 195 MOTION for Leave to File an Amended Answer and Memorandum in Support Thereof filed by JAMES H. BILLINGTON. (Russell, Beverly) (Entered: 06/22/2010)
205 REPLY to opposition to motion re 192 MOTION to Strike Plaintiffs' Declarations Filed in Support of Their Opposition Memorandum and Defendant's Supplemental

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06/28/2010 07/01/2010 07/01/2010 07/02/2010 07/16/2010 07/16/2010 07/21/2010
07/21/2010 07/22/2010 07/28/2010

Memorandum in Support of HIs Motion for Sanctions (R. 120) MOTION to Strike Plaintiffs' Declarations Filed in Support of Their Opposition Memorandum and Defendant's Supplemental Memorandum in Support of HIs Motion for Sanctions (R. 120) filed by JAMES H. BILLINGTON. (Russell, Beverly) (Entered: 06/23/2010)
206 Unopposed MOTION for Extension of Time to Comply with the Court's May 28, 2010, Memorandum Order on Plaintiffs' Motion to Compel by JAMES H. BILLINGTON (Attachments: # 1 Text of Proposed Order)(Douds, Julia) (Entered: 06/28/2010)
MINUTE ORDER granting 206 Defendant's Unopposed Motion for Extension of Time to Comply with the Court's May 28, 2010, Memorandum Order on Plaintiffs' Motion to Compel. It is ORDERED that the date by which Defendant must comply with the Court's May 28, 2010, Memorandum Order on Plaintiffs Motion to Compel is extended to July 2, 2010. Signed by Magistrate Judge Alan Kay on 07/01/2010. (lcak1) Modified event title on 7/2/2010 (znmw, ). (Entered: 07/01/2010)
Set/Reset Deadlines : Defendant must comply with the Court's 5/28/10 Memorandum Order 196 on Plaintiffs' Motion to Compel by 7/2/10. (kk) (Entered: 07/01/2010)
207 MOTION for Protective Order (Opposed) by JAMES H. BILLINGTON (Attachments: # 1 Exhibit 1. Letter from Joshua N. Rose, June 14, 2010, # 2 Exhibit Letter from Beverly M. Russell, June 17, 2010, # 3 Exhibit 3. Letter from Plaintiffs' Counsel, June 22, 2010, # 4 Text of Proposed Order)(Russell, Beverly) (Entered: 07/02/2010)
208 Unopposed MOTION for Extension of Time to File Response/Reply as to 207 MOTION for Protective Order (Opposed) MOTION for Protective Order (Opposed) by RUNAKO BALONDEMU, GERALDINE DUNCAN, DAVID HUBBARD, PRISCILLA IJEOMAH, CLIFTON KNIGHT, CHRISTINE MILLS, CHARLES MWALIMU, LAWRENCE PERRY, WILLIAM ROWLAND, SHARON TAYLOR (Attachments: # 1 Text of Proposed Order)(Rubinstein, Yuval) (Entered: 07/16/2010)
MINUTE ORDER granting 208 Plaintiffs' Unopposed Motion For Extension of Time to July 21, 2010 to File Opposition to Defendant's Motion For a Protective Order. Signed by Judge Henry H. Kennedy, Jr. on July 16, 2010. (NP) (Entered: 07/16/2010)
209 Memorandum in opposition to re 207 MOTION for Protective Order (Opposed) MOTION for Protective Order (Opposed) and Cross−Motion to Clarify This Court's May 28, 2010 Order filed by RUNAKO BALONDEMU, GERALDINE DUNCAN, DAVID HUBBARD, PRISCILLA IJEOMAH, CLIFTON KNIGHT, CHRISTINE MILLS, CHARLES MWALIMU, LAWRENCE PERRY, WILLIAM ROWLAND, SHARON TAYLOR. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1 − Declaration of James Wyatt, # 3 Exhibit 2 − June 23 Email of Beverly Russell, # 4 Exhibit 3 − July 2−5 Email Correspondence)(Rubinstein, Yuval) (Entered: 07/21/2010)
211 MOTION to Clarify May 28, 2010 Order by RUNAKO BALONDEMU, GERALDINE DUNCAN, DAVID HUBBARD, PRISCILLA IJEOMAH, CLIFTON KNIGHT, CHRISTINE MILLS, CHARLES MWALIMU, LAWRENCE PERRY, WILLIAM ROWLAND, SHARON TAYLOR. (See Docket Entry 209 to view document. Counsel is reminded to file the motion as a separate docket entry in future). (znmw, ) (Entered: 07/22/2010)
210 NOTICE of Proposed Order for Plaintiffs' Cross−Motion to Clarify This Court's May 28, 2010 Order by RUNAKO BALONDEMU, GERALDINE DUNCAN, DAVID HUBBARD, PRISCILLA IJEOMAH, CLIFTON KNIGHT, CHRISTINE MILLS, CHARLES MWALIMU, LAWRENCE PERRY, WILLIAM ROWLAND, SHARON TAYLOR re 209 Memorandum in Opposition,, (Rubinstein, Yuval) (Entered: 07/22/2010)
212 REPLY to opposition to motion re 207 MOTION for Protective Order (Opposed) MOTION for Protective Order (Opposed) filed by JAMES H. BILLINGTON. (Attachments: # 1 Exhibit Defendant's Supplemental Response to Plaintiffs' Interrogatories of May, 2009 (July 2, 2010)(Supplemental Response to Plaintiffs' Interrogatory No. 8))(Russell, Beverly) (Entered: 07/28/2010)

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02/28/2011 03/21/2011
03/25/2011
03/31/2011 04/04/2011 04/11/2011
04/14/2011 04/14/2011 04/21/2011 05/09/2011
08/04/2011 09/15/2011
09/15/2011 09/21/2011

213 ORDER denying 137 Motion for Permanent Injunction. Signed by Judge Henry H. Kennedy, Jr. on February 28, 2011. (lchhk3) (Entered: 02/28/2011)
MINUTE ORDER setting a brief Motions Hearing on 207 Motion for Protective Order and 211 Motion to Clarify May 28, 2010 Order for 3/25/2011 at 10:00 AM in Courtroom 7 before Magistrate Judge Alan Kay. If there is a scheduling conflict, counsel shall jointly contact chambers at (202) 354−3030 with a list of available dates that work for all parties. Signed by Magistrate Judge Alan Kay on 3/21/2011. (lcak1) (Entered: 03/21/2011)
Minute Entry for proceedings held before Magistrate Judge Alan Kay: Motion Hearing held on 3/25/2011 re 207 Motion for Protective Order and 211 Motion to clarify May 28, 2010 Order. Court's ruling under Advisement. (Court Reporter : Bowles Reporting Service − Ctrm. 7) (lm ) Modified on 4/4/2011 (lm, ). Modified on 4/10/13 (kk). (Entered: 04/04/2011)
214 MOTION to Stay Pending Discovery Issues and Statement of Points and Authorities in Support Thereof by JAMES H. BILLINGTON (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 03/31/2011)
NOTICE OF CORRECTED DOCKET ENTRY: re Motion Hearing held on 3/25/11 was modified by the Clerk to eliminate linkage to Motion 214 and to include linkage to Motions 207 , 211 .(lm) (Entered: 04/04/2011)
215 Memorandum in opposition to re 214 MOTION to Stay Pending Discovery Issues and Statement of Points and Authorities in Support Thereof filed by RUNAKO BALONDEMU, GERALDINE DUNCAN, DAVID HUBBARD, PRISCILLA IJEOMAH, CLIFTON KNIGHT, CHRISTINE MILLS, CHARLES MWALIMU, LAWRENCE PERRY, WILLIAM ROWLAND, SHARON TAYLOR. (Attachments: # 1 Text of Proposed Order)(Rubinstein, Yuval) (Entered: 04/11/2011)
216 Unopposed MOTION for Extension of Time to File Response/Reply to Plaintiffs' Opposition to Defendant's Motion for a Stay of Pending Discovery Issues by JAMES H. BILLINGTON (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 04/14/2011)
MINUTE ORDER granting 216 Defendant's Unopposed Motion for an Extension of Time to File His Reply to Plaintiffs' Opposition To Defendant's Motion for a Stay of Pending Discovery Issues. Accordingly, defendant's reply is due on April 22, 2011. Signed by Judge Henry H. Kennedy, Jr. on April 14, 2011. (NP) (Entered: 04/14/2011)
217 REPLY to opposition to motion re 214 MOTION to Stay Pending Discovery Issues and Statement of Points and Authorities in Support Thereof filed by JAMES H. BILLINGTON. (Russell, Beverly) (Entered: 04/21/2011)
MINUTE ORDER granting 214 Motion for a Stay of Pending Discovery Issues. Accordingly, any pending discovery−related matters are stayed pending the Court's resolution of 172 defendants Motion to Dismiss, or Alternatively, for Summary Judgment. Signed by Judge Henry H. Kennedy, Jr. on May 9, 2011. (lchhk3) (Entered: 05/09/2011)
218 NOTICE OF SUPPLEMENTAL AUTHORITY by JAMES H. BILLINGTON (Russell, Beverly) (Entered: 08/04/2011)
219 ORDER by Chief Justice of the United States Supreme Court directing the designation and assignment of a United States District Judge for service in another circuit; assigning Judge Frederick J. Scullin, Jr. of the U.S. District Court for the Northern District of New York to the following cases:10−1857,04−2205,06−1268,07−2173, and 10−1962. (Entered: 09/15/2011)
220 Case Reassigned to Judge Frederick J. Scullin, Jr. Judge Henry H. Kennedy no longer assigned to the case. (jeb, ) (Entered: 09/15/2011)
TEXT NOTICE of Hearing: As this case has recently been reassigned, a Status Conference is set for 10/19/2011 10:00 AM in Chambers before Judge Frederick J. Scullin Jr. Counsel will be advised of the chambers location prior to the conference date. (Scullin, Frederick) (Entered: 09/21/2011)

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10/07/2011 10/12/2011 10/14/2011 10/18/2011 10/19/2011 10/19/2011 10/26/2011
11/02/2011 11/09/2011
11/10/2011 08/10/2012 09/14/2012 11/08/2012

TEXT NOTICE TO COUNSEL that the 10/18/2011 status confernce will be held in chambers room 6333, 6th floor, main courthouse. (Scullin, Frederick) (Entered: 10/07/2011)
NOTICE TO COUNSEL to clarify that the status conference will be held on October 19, 2011 at 10:00am in chambers room 6333, 6th floor, main courthouse. (Scullin, Frederick) (Entered: 10/12/2011)
221 STATUS REPORT For October 19, 2011 Status Conference by RUNAKO BALONDEMU, GERALDINE DUNCAN, DAVID HUBBARD, PRISCILLA IJEOMAH, CLIFTON KNIGHT, CHRISTINE MILLS, CHARLES MWALIMU, LAWRENCE PERRY, WILLIAM ROWLAND, SHARON TAYLOR. (Attachments: # 1 Exhibit − Affirmative Action Plan)(Rubinstein, Yuval) (Entered: 10/14/2011)
222 RESPONSE re 221 Status Report, (and Objection) filed by JAMES H. BILLINGTON. (Attachments: # 1 Exhibit A)(Russell, Beverly) (Entered: 10/18/2011)
Minute Entry for proceedings held before Judge Frederick J. Scullin, Jr: In Chambers Conference held on 10/19/2011. Motion 195 to amend answer, GRANTED. (Court Reporter Wendy Ricard.) (tg, ) (Entered: 10/19/2011)
223 AMENDED ANSWER to 28 Second Amended Class Action Complaint by JAMES H. BILLINGTON. (tg, ) (Entered: 10/19/2011)
224 SUPPLEMENTAL MEMORANDUM to Motion to Dismiss, or Alternatively, for Summary Judgment filed by JAMES H. BILLINGTON. (Attachments: # 1 Exhibit 1. Library of Congress Merit Selection and Promotion Plan, June 6, 2001, # 2 Exhibit 2. Library of Congress Merit Selection Plan, June 10, 2005, # 3 Exhibit 3. Report of Plaintiffs' Counsel of Notice to Class Members, January 8, 2001)(Russell, Beverly) (Entered: 10/26/2011)
225 RESPONSE re 224 Supplemental Memorandum, filed by RUNAKO BALONDEMU, GERALDINE DUNCAN, DAVID HUBBARD, PRISCILLA IJEOMAH, CLIFTON KNIGHT, CHRISTINE MILLS, CHARLES MWALIMU, LAWRENCE PERRY, WILLIAM ROWLAND, SHARON TAYLOR. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Rubinstein, Yuval) (Entered: 11/02/2011)
226 MOTION for Leave to File a Reply to "Plaintiffs' Response to Defendant's Supplemental Brief to Its Motion to Dismiss, or Alternatively, for Summary Judgment" by JAMES H. BILLINGTON (Attachments: # 1 Text of Proposed Order, # 2 Defendant's Reply to "Plaintiffs' Response to Defendant's Supplemental Brief to Its Motion to Dismiss, or Alternatively, for Summary Judgment")(Russell, Beverly) (Entered: 11/09/2011)
TEXT ORDER denying 226 Motion for Leave to File a Reply to 225 Plaintiff's Response to Defendant's 224 Supplemental Memorandum. Further, the parties shall not file or request to file any further documents pertaining to the pending motion unless the Court so requests. IT IS SO ORDERED by Judge Frederick J. Scullin, Jr on 11/10/2011. (Scullin, Frederick) (Entered: 11/10/2011)
228 NOTICE OF WITHDRAWAL OF APPEARANCE as to RUNAKO BALONDEMU, GERALDINE DUNCAN, DAVID HUBBARD, PRISCILLA IJEOMAH, CLIFTON KNIGHT, CHRISTINE MILLS, CHARLES MWALIMU, LAWRENCE PERRY, WILLIAM ROWLAND, SHARON TAYLOR. Attorney Yuval Rubinstein terminated. (Rubinstein, Yuval) (Entered: 08/10/2012)
229 NOTICE OF SUPPLEMENTAL AUTHORITY by RUNAKO BALONDEMU, GERALDINE DUNCAN, DAVID HUBBARD, PRISCILLA IJEOMAH, CLIFTON KNIGHT, CHRISTINE MILLS, CHARLES MWALIMU, LAWRENCE PERRY, WILLIAM ROWLAND, SHARON TAYLOR (Attachments: # 1 Supplement)(Rose, David) (Entered: 09/14/2012)
TEXT MOTION SCHEDULING NOTICE: The Court has determined that oral argument is necessary in this case re: 172 MOTION to Dismiss , or Alternatively MOTION for Summary Judgment. Motion Hearing set for 12/6/2012 10:30 AM in Courtroom 17 before Judge Frederick J. Scullin Jr.. (Scullin, Frederick) (Entered: 11/08/2012)

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11/15/2012
11/15/2012 11/19/2012 11/19/2012
01/16/2013 02/22/2013 02/22/2013 03/05/2013 03/07/2013 03/07/2013 03/08/2013

TEXT SCHEDULING ORDER : In addition to hearing oral argument on 172 MOTION to Dismiss, alternatively for Summary Judgment, the Court will also hear argument on 192 MOTION to Strike Plaintiffs' Declarations Filed in Support of Their Opposition Memorandum and Defendant's Supplemental Memorandum in Support of Motion for Sanctions. Motion argument remains scheduled for 12/6/2012 at 10:30am.. IT IS SO ORDERED by Judge Frederick J. Scullin, Jr on 11/15/2012. (Scullin, Frederick) (Entered: 11/15/2012)
230 MOTION to Continue December 6, 2012 Hearing by JAMES HADLEY BILLINGTON (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 11/15/2012)
TEXT ORDER granting 230 Motion to adjourn date for oral argument. Motion argument is reset for 2/26/2013 at 4:00pm in Courtroom 17. IT IS SO ORDERED by Judge Frederick J. Scullin, Jr on 11/19/2012. (Scullin, Frederick) (Entered: 11/19/2012)
TEXT MOTION SCHEDULING NOTICE as to 172 MOTION to Dismiss , or Alternatively MOTION for Summary Judgment, 192 MOTION to Strike Plaintiffs' Declarations Filed in Support of Their Opposition Memorandum and Defendant's Supplemental Memorandum in Support of HIs Motion for Sanctions (R. 120). Motion Hearing reset for 2/26/2013 04:00 PM in Courtroom 17 before Judge Frederick J. Scullin Jr.. (Scullin, Frederick) (Entered: 11/19/2012)
TEXT MOTION RESCHEDULING NOTICE as to 172 MOTION to Dismiss , or Alternatively MOTION for Summary Judgment. Due to a conflict in the Court's calendar: Motion Argument reset for 3/4/2013 10:00 AM in Courtroom 17 before Judge Frederick J. Scullin Jr.. (Scullin, Frederick) (Entered: 01/16/2013)
TEXT MOTION RESCHEDULING NOTICE as to 172 MOTION to Dismiss or Alternatively MOTION for Summary Judgment. Motion Argument reset for 3/5/2013 10:00 AM in Courtroom 17 before Judge Frederick J. Scullin Jr.. (Scullin, Frederick) (Entered: 02/22/2013)
Reset Hearings: Motion Hearing reset for 3/5/2013 10:00 AM in Courtroom 17 before Judge Frederick J. Scullin Jr.. (Scullin, Frederick) (Entered: 02/22/2013)
Minute Entry; for proceedings held before Judge Frederick J. Scullin, Jr: Motion Hearing held on 3/5/2013 re 172 MOTION to Dismiss, or Alternatively, MOTION for Summary Judgment filed by JAMES HADLEY BILLINGTON. Oral arguments heard; Motion taken under advisement. Written order to issue via chambers. (Court Reporter Bryan Wayne.) (hs) (Entered: 03/05/2013)
231 NOTICE to the Court Regarding the Parties' Availability for a Conference on Discovery−Related Matters by JAMES HADLEY BILLINGTON (Russell, Beverly) (Entered: 03/07/2013)
MINUTE ORDER Telephone Conference about discovery set for 3/15/2013 at 2:00 PM before Magistrate Judge Alan Kay. Counsel should jointly contact chambers at 202−354−3030. Signed by Magistrate Judge Alan Kay on 3/7/2013. (lcak1) (Entered: 03/07/2013)
232 TRANSCRIPT OF 3/5/13 MOTIONS HEARING before Judge Frederick J. Scullin, Jr. Page Numbers: 1−17. Date of Issuance: 3/8/2013. Court Reporter: Bryan A. Wayne, telephone number: 202−354−3186. Court Reporter e−mail address: bryanawayne@yahoo.com.<P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.<P></P> Redaction Request due 3/29/2013. Redacted Transcript Deadline set for 4/8/2013. Release of Transcript Restriction set for 6/6/2013.(Wayne, Bryan) (Entered: 03/08/2013)

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03/12/2013
03/12/2013
03/15/2013
03/15/2013 03/18/2013 03/29/2013 03/29/2013 04/05/2013 04/05/2013 04/16/2013
05/23/2013
05/28/2013 05/30/2013

233 ORDER denying 120 and 191 Motion for Sanctions; denying 172 Motion to Dismiss or in the alternative 172 Motion for Summary Judgment as to failure to exhaust administrative remedies; the doctrine of res judicata. The motion is Denied w/o prejudice to renew and w/leave to renew based on the doctrine of collateral estoppel and failure to state a claim. Discovery disputes contained in motions 192 , 207 and 211 are referred to Magistrate Judge Kay. Within 10 days after these disputes are resolved, discovery must be completed. Plaintiffs shall file a motion for class certification in accordance with the deadlines set forth in this order.. Signed by Judge Frederick J. Scullin, Jr on 3/12/2013. (Scullin, Frederick) (Entered: 03/12/2013)
MOTIONS 192 MOTION to Strike Plaintiffs' Declarations Filed in Support of Their Opposition Memorandum and Defendant's Supplemental Memorandum in Support of HIs Motion for Sanctions (R. 120), 211 MOTION for More Definite Statement, 207 MOTION for Protective Order (Opposed) REFERRED to Judge Magistrate Judge Kay pursuant to 233 Order. (Scullin, Frederick) (Entered: 03/12/2013)
MINUTE ORDER As discussed in the 3/15/2013 Telephone Conference, parties are to file supplemental briefing on pending discovery motions 192 , 207 , and 211 by 3/29/2013. Replies are due 4/5/2013. Motions hearing set for 4/16/2013 at 2.00 pm in Courtroom 7. Signed by Magistrate Judge Alan Kay on 3/15/2013. (lcak1) (Entered: 03/15/2013)
Minute Entry for proceedings held before Magistrate Judge Alan Kay on 3/15/13 : Discovery Telephone Conference held. Minute Order to be issued. (Court Reporter : Bowles Reporting Service − Ctrm. 7) (kk) (Entered: 03/15/2013)
Set/Reset Deadlines/Hearings : Parties' supplemental briefing on pending discovery motions due by 3/29/13; replies to supplemental briefing due by 4/5/13; Motions Hearing set for 4/16/13 at 2:00 PM in Courtroom 7 before Magistrate Judge Alan Kay. (kk) (Entered: 03/18/2013)
234 STATUS REPORT by JAMES HADLEY BILLINGTON. (Attachments: # 1 Exhibit 1. Motions Hearing Transcript, March 5, 2013, # 2 Exhibit 2. Declaration of Counsel for the Plaintiffs)(Russell, Beverly) (Entered: 03/29/2013)
235 STATUS REPORT for All Plaintiffs by RUNAKO BALONDEMU. (Rose, Joshua) (Entered: 03/29/2013)
236 REPLY re 235 to Plaintiffs' Status Report filed by JAMES HADLEY BILLINGTON. (Russell, Beverly) Modified to add link on 4/8/2013 (znmw, ). (Entered: 04/05/2013)
237 REPLY re 234 Reply to Dkt 234 by all Plaintiffs by RUNAKO BALONDEMU. (Rose, Joshua) Modified event title and link on 4/8/2013 (znmw, ). (Entered: 04/05/2013)
Minute Entry for Motions Hearing held before Magistrate Judge Alan Kay on 4/16/13 : Defendant's Motion to Strike Plaintiffs' Declarations Filed in Support of Their Opposition Memorandum 192 , Defendant's Motion for Protective Order 207 and Plaintiffs' Motion to Clarify This Court's 5/28/10 Order 211 , taken under advisement. (Court Reporter : Bowles Reporting Service − Ctrm. 7) (kk) (Entered: 04/17/2013)
238 ORDER granting 211 Plaintiff's Motion for Clarification of May 28, 2010, Order; denying 192 Defendant's Motion to Strike; denying 207 Defendant's Motion for Protective Order. Discovery Hearing set for 6/11/2013 at 2:00 pm in Courtroom 7. See Memorandum Order for further details. Signed by Magistrate Judge Alan Kay on 5/23/2013. (lcak1) (Entered: 05/23/2013)
Set/Reset Hearings : Discovery Hearing set for 6/11/13 at 2:00 PM in Courtroom 7 before Magistrate Judge Alan Kay. (kk) (Entered: 05/28/2013)
239 TRANSCRIPT OF PROCEEDINGS before Magistrate Judge Alan Kay. Motions Hearing held on 4/16/2013; Page Numbers: 1−58. Court Reporter/Transcriber Bowles Reporting Service, Telephone number (860) 464−1083,

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

Case: 1:04-cv-2205 As of: 03/12/2017 09:23 PM EDT 42 of 47

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.

06/03/2013

Redaction Request due 6/20/2013. Redacted Transcript Deadline set for 6/30/2013. Release of Transcript Restriction set for 8/28/2013.(znmw, ) (Entered: 05/30/2013)
240 CORRECTED TRANSCRIPT OF PROCEEDINGS before Magistrate Judge Alan Kay. Motions Hearing held on 4/16/2013; Page Numbers: 1−58. Court Reporter/Transcriber Bowles Reporting Service, Telephone number (860) 464−1083,

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.

06/06/2013 06/11/2013 06/19/2013 06/21/2013 06/23/2013
06/24/2013 06/25/2013

Redaction Request due 6/24/2013. Redacted Transcript Deadline set for 7/4/2013. Release of Transcript Restriction set for 9/1/2013.(znmw, ) (Entered: 06/03/2013)
241 NOTICE of Clarification by JAMES HADLEY BILLINGTON (Russell, Beverly) (Entered: 06/06/2013)
Minute Entry for Discovery Hearing held before Magistrate Judge Alan Kay on 6/11/13 : Matters taken under advisement. (Court Reporter : Bowles Reporting Service − Ctrm. 7) (kk) (Entered: 06/11/2013)
242 ORDER Status Hearing set for 6/24/2013 at 3:30 PM in Courtroom 7 before Magistrate Judge Alan Kay. See attached order. Signed by Magistrate Judge Alan Kay on 6/19/2013.(lcak1) (Entered: 06/19/2013)
243 RESPONSE TO ORDER OF THE COURT re 242 Order, Set Deadlines/Hearings filed by JAMES HADLEY BILLINGTON. (Attachments: # 1 Exhibit 1. Declaration of Emmet Devine, June 23, 2013, # 2 Exhibit 2. Declaration of Susan Frieswyk, June 23, 2013)(Russell, Beverly) (Entered: 06/21/2013)
244 SUPPLEMENTAL MEMORANDUM to For Hearing of June 24, 2013 filed by RUNAKO BALONDEMU. (Attachments: # 1 Exhibit Ex. 1 Wyatt Expert Report and Resume Doc 209−2, # 2 Exhibit Ex. 2 Applicant Flow Report from AVUE, # 3 Exhibit Ex 3 Data Table and Data Key Example, # 4 Exhibit Ex 4 Letter of Feb. 4, 2010)(Rose, Joshua) (Entered: 06/23/2013)
Minute Entry for proceedings held before Magistrate Judge Alan Kay on 6/24/13 : Discovery Status Hearing Held. (Court Reporter : Bowles Reporting Service − Ctrm. 7) (kk) (Entered: 07/01/2013)
245 TRANSCRIPT OF PROCEEDINGS before Magistrate Judge Alan Kay. Discovery Hearing held on 6/11/2013; Page Numbers: 1−60. Court Reporter/Transcriber Bowles Reporting Service, Telephone number (860) 464−1083,

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made

Case: 1:04-cv-2205 As of: 03/12/2017 09:23 PM EDT 43 of 47

available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.

07/03/2013 07/12/2013 07/15/2013 07/15/2013 07/19/2013

Redaction Request due 7/16/2013. Redacted Transcript Deadline set for 7/26/2013. Release of Transcript Restriction set for 9/23/2013.(znmw, ) (Entered: 06/25/2013)
MINUTE ORDER Telephone Conference set for 7/15/2013 at 2:00 PM before Magistrate Judge Alan Kay to discuss the status of Plaintiffs' communications with Avue. Parties are to jointly contact Chambers at 202.354.3030. Signed by Magistrate Judge Alan Kay on 7/3/2013.(lcak1) (Entered: 07/03/2013)
246 SUPPLEMENTAL MEMORANDUM to For Hearing of July 15, 2013 filed by CHRISTINE MILLS. (Attachments: # 1 Exhibit Avue Letter of July 11, 2013, # 2 Exhibit Query to Avue of July 12, 2013)(Rose, Joshua) (Entered: 07/12/2013)
MINUTE ORDER Telephone Conference set for 7/22/2013 at 3:00 PM before Magistrate Judge Alan Kay. Parties are to jointly contact Chambers at 202.354.3030. Signed by Magistrate Judge Alan Kay on 7/15/2013. (lcak1) (Entered: 07/15/2013)
Minute Entry for Telephone Conference regarding discovery held before Magistrate Judge Alan Kay on 7/15/13 : Further Discovery Telephone Conference set for 7/22/13 at 3:00 PM in Courtroom 7 before Magistrate Judge Alan Kay. (Court Reporter : Bowles Reporting Service − Ctrm. 7) (kk) (Entered: 07/16/2013)
247 TRANSCRIPT OF PROCEEDINGS before Magistrate Judge Alan Kay. Discovery Status Hearing held on 6/24/2013; Page Numbers: 1−43. Court Reporter/Transcriber Bowles Reporting Service, Telephone number (860) 464−1083,

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.

07/21/2013
07/22/2013 07/22/2013 07/23/2013 07/30/2013

Redaction Request due 8/9/2013. Redacted Transcript Deadline set for 8/19/2013. Release of Transcript Restriction set for 10/17/2013.(znmw, ) (Entered: 07/19/2013)
248 SUPPLEMENTAL MEMORANDUM to Motion to Compel Production of May 2009 Requests for Documents filed by CHRISTINE MILLS. (Attachments: # 1 Exhibit Ex 1 AVUE E−mail of 7−20−2013, # 2 Exhibit Ex 2 AVUE Counsel E−mail 7−18−2013)(Rose, Joshua) (Entered: 07/21/2013)
Minute Entry for proceedings held before Magistrate Judge Alan Kay: Discovery Telephone Conference held on 7/22/2013. (Court Reporter: Bowles Reporting Services.) (ldc, ) (Entered: 07/22/2013)
MINUTE ORDER Defendant's supplemental brief due 7/30/2013. Signed by Magistrate Judge Alan Kay on 7/22/2013. (lcak1) (Entered: 07/22/2013)
Set/Reset Deadlines : Defendant's Supplemental Brief due by 7/30/13. (kk) (Entered: 07/23/2013)
249 RESPONSE TO ORDER OF THE COURT re Order of July 22, 2013 filed by JAMES HADLEY BILLINGTON. (Attachments: # 1 Exhibit 1. Plaintiffs' Request for Production of Documents Regarding Class Discovery (May 2009), # 2 Exhibit 2. Letter from Beverly Russell to David Rose (June 17, 2010), # 3 Exhibit 3. Transcript of Discovery Hearing (June 11, 2013), # 4 Exhibit 4. Declaration of Susan Frieswyk (July 30, 2013))(Russell, Beverly) (Entered: 07/30/2013)

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08/21/2013 09/03/2013 09/03/2013 09/05/2013
09/18/2013 09/19/2013 09/30/2013 10/01/2013
10/07/2013 10/25/2013 10/30/2013 11/04/2013
11/14/2013

250 MEMORANDUM ORDER regarding discovery. Signed by Magistrate Judge Alan Kay on 8/21/2013. (lcak1) (Entered: 08/21/2013)
251 MOTION for Extension of Time to File an Appeal of the Court's August 21, 2013 Order by JAMES HADLEY BILLINGTON (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 09/03/2013)
252 ORDER granting 251 Motion for Extension of Time to file an appeal until 9/18/2013.. Signed by Judge Frederick J. Scullin, Jr on 9/3/2013. (Scullin, Frederick) (Entered: 09/03/2013)
TEXT SCHEDULING NOTICE: The date to file an APPEAL OF MAGISTRATE JUDGE 250 DISCOVERY ORDER remains set for 9/18/2013. Response in opposition to appeal to be filed by 9/25/2013. ORAL ARGUMENT on the MAGISTRATE JUDGE APPEAL is set for 10/1/2013 10:00 AM at the US Courthouse in Washington, DC ( courtroom to be determined ) before Judge Frederick J. Scullin Jr.. (Scullin, Frederick) (Entered: 09/05/2013)
253 Appeal of Magistrate Judge Decision to District Court by JAMES HADLEY BILLINGTON (Attachments: # 1 Exhibit Declaration of Susan Frieswyk, # 2 Text of Proposed Order)(Russell, Beverly) (Entered: 09/18/2013)
NOTICE OF ERROR re 253 Appeal of Magistrate Judge Decision to District Court; emailed to beverly.russell@usdoj.gov, cc'd 10 associated attorneys −− The PDF file you docketed contained errors: 1. FYI: On future filings the signing attorney and the filing attorney must be the same person. (td, ) (Entered: 09/19/2013)
254 Unopposed MOTION to Continue October 1, 2013 Oral Argument on Defendant's Objections to Magistrate Judge's August 21, 2013 Ruling by JAMES HADLEY BILLINGTON (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 09/30/2013)
255 TEXT ORDER granting 254 Motion to adjourn oral argument set for today due to lapse of appropriations to fund the U.S. Justice Department, thereby prohibiting its' employees from working. Counsel for the government shall notify the Court as soon as Congress has appropriated funds for the Justice Department, at which time the Court will reschedule the motion. IT IS SO ORDERED by Judge Frederick J. Scullin, Jr on 10/1/2013. (Scullin, Frederick) Modified on 10/1/2013 (Scullin, Frederick). (Entered: 10/01/2013)
TEXT NOTICE RESCHEDULING ORAL ARGUMENT ON 253 APPEAL OF MAGISTRATE JUDGE DECISION reset for 10/30/2013 10:00 AM before Judge Frederick J. Scullin Jr. at the US Courthouse in Washington, DC.(Scullin, Frederick) (Entered: 10/07/2013)
TEXT NOTICE of location for Hearing: Motion Argument set for 10/30/2013 10:00 AM will be held in Courtroom 21 before Senior Judge Frederick J. Scullin Jr.. (Scullin, Frederick) (Entered: 10/25/2013)
Minute Entry for proceedings held before Judge Frederick J. Scullin, Jr: Motion Hearing held on 10/30/2013 re 253 Appeal of Magistrate Judge Decision to District Court by JAMES HADLEY BILLINGTON. Ruling Reserved by the Court. (Court Reporter PAT KANESHIRO−MILLER.) (mac) (Entered: 10/30/2013)
256 ORDER Affirming 250 Magistrate Judge Kay's Order, Memorandum & Opinion and Denying, 253 Appeal of Magistrate Judge Decision to District Court filed by JAMES HADLEY BILLINGTON Plaintiff's are premitted to subpoena information from Avue pursuant to order. Upon receiving a cost estimate from Avue re: the access to information, Plaintiff's shall submit a statement to the Court and Defendant explaining the predicted cost. The issue of cost to access the information and how costs should be allocated is REFERRED to Magistarte Judge Kay.. Signed by Senior Judge Frederick J. Scullin, Jr on 11/1/2013. (Scullin, Frederick) (Entered: 11/04/2013)
257 MOTION for Reconsideration on Order Related to Defendant's Objections to Magistrate Judge's Ruling by JAMES HADLEY BILLINGTON (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 11/14/2013)

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03/14/2014
03/21/2014 03/31/2014 04/02/2014 04/16/2014 04/25/2014 04/25/2014 05/05/2014
05/07/2014 05/07/2014 05/07/2014 05/19/2014 05/20/2014
05/20/2014 05/28/2014
06/02/2014 06/05/2014

258 RESPONSE TO ORDER OF THE COURT re 256 Order,, re Avue's Estimate of the Costs filed by CHRISTINE MILLS. (Attachments: # 1 Exhibit Bursese Email − Feb. 11, 2014, # 2 Exhibit Defense Email − Feb. 14, 2014, # 3 Exhibit Revelle Email − Feb. 27, 2014)(Rose, David) (Entered: 03/14/2014)
259 Memorandum in opposition to re 257 MOTION for Reconsideration on Order Related to Defendant's Objections to Magistrate Judge's Ruling filed by CHRISTINE MILLS. (Attachments: # 1 Text of Proposed Order)(Rose, David) (Entered: 03/21/2014)
260 REPLY to opposition to motion re 257 MOTION for Reconsideration on Order Related to Defendant's Objections to Magistrate Judge's Ruling filed by JAMES HADLEY BILLINGTON. (Russell, Beverly) (Entered: 03/31/2014)
261 MOTION to Bifurcate Issues of Liability and Issues of Individual Relief (including damages) by CHRISTINE MILLS (Rose, David) (Entered: 04/02/2014)
262 Memorandum in opposition to re 261 MOTION to Bifurcate Issues of Liability and Issues of Individual Relief (including damages) filed by JAMES HADLEY BILLINGTON. (Russell, Beverly) (Entered: 04/16/2014)
263 MOTION to Certify Class by CHRISTINE MILLS (Rose, David) (Entered: 04/25/2014)
264 MEMORANDUM re 263 MOTION to Certify Class filed by CHRISTINE MILLS by CHRISTINE MILLS. (Rose, David) (Entered: 04/25/2014)
TEXT MOTION SCHEDULING NOTICE re: 261 MOTION to Bifurcate Issues of Liability and Issues of Individual Relief (including damages) and 263 MOTION to Certify Class . Motion Argument set for 6/18/2014 10:00 AM before Senior Judge Frederick J. Scullin Jr. at the US Courthouse in Washington, DC. (Scullin, Frederick) (Entered: 05/05/2014)
265 Unopposed MOTION for Extension of Time to File Opposition Memorandum to Plaintiffs' Motion for Class Certification by JAMES HADLEY BILLINGTON (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 05/07/2014)
266 TEXT ORDER granting 265 Motion for Extension of Time to file Opposition Memorandum to 263 Motion to Cerify Class until 5/20/2014.. IT IS SO ORDERED by Judge Frederick J. Scullin, Jr on 5/7/2014. (Scullin, Frederick) (Entered: 05/07/2014)
Set/Reset Deadlines as to 263 MOTION to Certify Class . Responses due by 5/20/2014 (Scullin, Frederick) (Entered: 05/07/2014)
267 MOTION to Continue June 18, 2014 Motions Hearing by JAMES HADLEY BILLINGTON (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 05/19/2014)
268 Memorandum in opposition to re 263 MOTION to Certify Class filed by JAMES HADLEY BILLINGTON. (Attachments: # 1 Exhibit 1. Cook Complaint (Civil Action No. 82−0400), # 2 Exhibit 2. Settlement Agreement (Cook v. Billington, Civil Action No. 82−0400), # 3 Exhibit 3. Cook v. Billington, Civil Action No. 82−0400 (Order, Jan. 18, 2001), # 4 Exhibit 4. Cook v. Billington, Civil Action No. 82−0400 (Claimant Payments), # 5 Statement of Facts, # 6 Text of Proposed Order)(Russell, Beverly) (Entered: 05/20/2014)
269 MOTION to Dismiss , or Alternatively, MOTION for Summary Judgment by JAMES HADLEY BILLINGTON (Russell, Beverly) (Entered: 05/20/2014)
270 TEXT ORDER denying 267 Motion to Continue. The motion argument re: 261 to Bifircate Issues and Motion 263 to Certify Class remains scheduled for 6/18/2014 at 10:00am. IT IS SO ORDERED by Judge Frederick J. Scullin, Jr on 5/28/2014. (Scullin, Frederick) (Entered: 05/28/2014)
271 ORDER denying 257 Motion for Reconsideration. Signed by Judge Frederick J. Scullin, Jr on 6/2/2014. (Scullin, Frederick) (Entered: 06/02/2014)
MINUTE ORDER : No later than June 16, 2014, the parties will file a proposed briefing schedule (and request for a hearing, if one will be requested) on the issue of costs addressed in the Order of November 4, 2013 256 and the Order of June 2, 2014

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06/05/2014 06/05/2014 06/17/2014 06/17/2014 06/17/2014
06/18/2014
09/29/2014 10/07/2014
10/14/2014 03/30/2016

271 . The parties are encouraged to submit a joint proposed schedule, but may submit their own respective proposals if necessary. Motion(s) due by 6/16/2014. Signed by Magistrate Judge Alan Kay on 6/5/2014. (lcak1) Modified on 6/5/14 (kk). (Entered: 06/05/2014)
Set/Reset Deadlines : Parties' Proposed Briefing Schedule(s) due by 6/16/14. (kk) (Entered: 06/05/2014)
272 RESPONSE TO ORDER OF THE COURT re Order, Set Deadlines/Hearings,, filed by JAMES HADLEY BILLINGTON. (Russell, Beverly) (Entered: 06/05/2014)
273 NOTICE to the Court Regarding Plaintiffs' Failure to Meet Filing Deadlines by JAMES HADLEY BILLINGTON (Russell, Beverly) (Entered: 06/17/2014)
274 Memorandum in opposition re 269 MOTION to Dismiss , or Alternatively MOTION for Summary Judgment filed by CHRISTINE MILLS. (Rose, David) Modified event title on 6/18/2014 (znmw, ). (Entered: 06/17/2014)
275 REPLY to opposition to motion re 263 MOTION to Certify Class , 261 MOTION to Bifurcate Issues of Liability and Issues of Individual Relief (including damages) filed by RUNAKO BALONDEMU, GERALDINE DUNCAN, DAVID HUBBARD, PRISCILLA IJEOMAH, CLIFTON KNIGHT, CHRISTINE MILLS, CHARLES MWALIMU, LAWRENCE PERRY, WILLIAM ROWLAND, SHARON TAYLOR. (See Docket Entry 274 to view document. Counsel is reminded to docket the reply as a separate docket entry and select all plaintiffs as filers in future). (znmw, ) (Entered: 06/18/2014)
Minute Entry for Proceedings held before Judge Frederick J. Scullin, Jr.: Motion Hearing held on 6/18/2014 re 263 MOTION to Certify Class filed by CHRISTINE MILLS, et al., and 269 MOTION to Dismiss , or Alternatively MOTION for Summary Judgment filed by JAMES HADLEY BILLINGTON. 263 Motion to Certify Class to be denied; 269 Motion to Dismiss or Alternatively for Summary Judgment was Heard and Taken Under Advisement. (ORDER TO BE ISSUED) (Court Reporter William Zaremba) (jth) (Entered: 06/18/2014)
MINUTE ORDER Telephone Conference to address the issue of costs is set for 10/14/2014 10:30 AM in Chambers before Magistrate Judge Alan Kay. Chambers will initiate the call. Signed by Magistrate Judge Alan Kay on 9/29/14. (lcak1) (Entered: 09/29/2014)
276 TRANSCRIPT OF PROCEEDINGS before Judge Frederick J. Scullin, Jr held on June 18, 2014; Page Numbers: 1−17; Date of Issuance:October 7, 2014. Court Reporter/Transcriber: William Zaremba; Telephone number: (202)354−3249; Court Reporter Email Address: William_Zaremba@dcd.uscourts.gov.<P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, PDF or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 10/28/2014. Redacted Transcript Deadline set for 11/7/2014. Release of Transcript Restriction set for 1/5/2015.(Zaremba, William) (Entered: 10/07/2014)
Minute Entry for proceedings held before Magistrate Judge Alan Kay: Telephone Conference held on 10/14/2014. (lcak1) (Entered: 10/14/2014)
277 ORDER: The Court hereby ORDERS that Plaintiffs' # 263 motion to certify a class is DENIED. The Court further ORDERS that Plaintiffs' # 261 motion to bifurcate issues of liability and issues of individual relief is DENIED as moot. The Court further ORDERS that Defendant's # 269 motion to dismiss or, in the alternative, for summary judgment is GRANTED pursuant to Local Civil Rule 7(b) because Plaintiffs did not file a memorandum of law in opposition to this motion within the prescribed time frame; and, therefore, the Court deems Defendant's motion conceded. The Court

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03/31/2016 04/14/2016 04/28/2016 05/24/2016 05/25/2016
05/26/2016 05/27/2016 06/17/2016 09/13/2016 09/30/2016 10/06/2016
10/19/2016
10/20/2016

further ORDERS that the Clerk of the Court shall enter judgment in favor of Defendant and close this case. Signed by Judge Frederick J. Scullin, Jr. on 3/30/2016. (Scullin, Frederick) (Entered: 03/30/2016)
278 CLERK'S JUDGMENT in favor of Defendant against Plaintiff.. Signed by Deputy Clerk on 3/31/16. (gdf) (Entered: 03/31/2016)
279 MOTION for Reconsideration re 278 Clerk's Judgment by CLIFTON KNIGHT, CHRISTINE MILLS (zrdj) (Attachment(s): # 1 Text of Proposed Order) (zrdj). Modified on 4/15/2016 (zrdj). (Entered: 04/15/2016)
280 Memorandum in opposition to re 279 MOTION for Reconsideration re 278 Clerk's Judgment filed by JAMES HADLEY BILLINGTON. (Attachments: # 1 Text of Proposed Order)(Russell, Beverly) (Entered: 04/28/2016)
281 MOTION for Extension of Time to File Response/Reply as to 279 MOTION for Reconsideration re 278 Clerk's Judgment by CLIFTON KNIGHT, CHRISTINE MILLS (Attachments: # 1 Text of Proposed Order)(zrdj) (Entered: 05/25/2016)
282 TEXT ORDER: Granting the # 281 Motion for Extension of Time to File a Reply to the # 279 Motion for Reconsideration. Reply due by 5/27/2016. IT IS SO ORDERED by Judge Frederick J. Scullin, Jr. on 5/25/2016. (Scullin, Frederick) Modified on 5/26/2016, copy served upon plaintiffs Mills and Knight via email. (Scullin, Frederick) (Entered: 05/25/2016)
283 NOTICE OF WITHDRAWAL OF APPEARANCE as to JAMES HADLEY BILLINGTON. Attorney Beverly Maria Russell terminated. (Russell, Beverly) (Entered: 05/26/2016)
284 REPLY to opposition to motion re 279 MOTION for Reconsideration re 278 Clerk's Judgment filed by CLIFTON KNIGHT. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(zrdj) (Entered: 05/31/2016)
285 NOTICE OF SUPPLEMENTAL AUTHORITY by CLIFTON KNIGHT (zrdj) (Entered: 06/20/2016)
TEXT NOTICE of Hearing on the # 279 Motion for Reconsideration: Oral Argument is set for 10/27/2016 at 10:00 AM before Judge Frederick J. Scullin, Jr. A courtroom location will be determined at a later date. (Scullin, Frederick) (Entered: 09/13/2016)
286 NOTICE OF SUBSTITUTION OF COUNSEL by Jason Todd Cohen on behalf of All Defendants Substituting for attorney Julia Douds (Cohen, Jason) (Entered: 09/30/2016)
287 NOTICE of Appearance by Denise Marie Clark on behalf of RUNAKO BALONDEMU, GERALDINE DUNCAN, DAVID HUBBARD, PRISCILLA IJEOMAH, CLIFTON KNIGHT, CHRISTINE MILLS, CHARLES MWALIMU, LAWRENCE PERRY, WILLIAM ROWLAND, SHARON TAYLOR (Clark, Denise) (Main Document 287 replaced on 10/7/2016) (znmw). (Entered: 10/06/2016)
288 Unopposed MOTION to Continue by RUNAKO BALONDEMU, AMY BARNES, ARNICE COOKE, ROBERT COOPER, GERALDINE DUNCAN, MICHAEL DURRAH, II, SABRAE HILLIARD, DAVID HUBBARD, PRISCILLA IJEOMAH, CLIFTON KNIGHT, CHRISTINE MILLS, CHARLES MWALIMU, LAWRENCE PERRY, WILLIAM ROWLAND, SHARON TAYLOR, MARK A. WILSON (Attachments: # 1 Text of Proposed Order)(Clark, Denise) (Entered: 10/19/2016)
289 TEXT ORDER: Granting the # 288 Motion to Reschedule Oral Argument as to the # 279 Motion for Reconsideration. Oral Argument is adjourned without date. IT IS SO ORDERED by Judge Frederick J. Scullin, Jr. on 10/20/2016. (Scullin, Frederick) (Entered: 10/20/2016)